ARKANSAS.

1. COMMON LAW.

2. CHOSES IN ACTION, BILLS OF EXCHANGE, AND PROMISSORY NOTES.

10. EFFECT OF DEATH UPON THE RIGHTS OF CREDITORS.

1. Common Law.

The general principles of the common law, and the statutes in aid thereof, made prior to the fourth year of James I, so far as the same are applicable to our country, and not inconsistent with the laws or constitution of the United States, or the state of Arkansas, constitute the rule of decision in all civil controversies. (a)

2. Choses in Action, Bills of Exchange, and Promissory Notes.

All bonds, bills, notes, and agreements in writing for the payment of money, may be assigned, so that the assignee may sue thereon, in the same manner as the original payee; the obligor, however, not to be precluded from any defence or set-off which he might have made to the action before the assignment. The indorsers or assignors of any instrument in writing assignable by law for the payment of money alone, on receiving due

(a) R. S. 182.

Choses in Action, Bills of Exchange, and Promissory Notes.

notice of the non-payment or protest of such instrument, are equally liable with the original maker, and may be sued jointly or separately with him. (a)

The provisions relative to discount and set-off, do not apply to promissory notes, or bills of exchange payable to order at any bank of the state, or which may be discounted or negotiated therein. (b)

No person can be charged as the acceptor of a bill of exchange, unless the acceptance be in writing; nor if the acceptance be written upon any other paper than the bill, except in favor of a person to whom the acceptance shall have been shown, and who on the faith thereof has given a valuable consideration for the bill. The remedy upon bills of exchange both foreign and inland, and upon promissory notes payable in bank, is governed by the rules of the law merchant, as to days of grace, protest,

and notice.

All joint obligations are to receive the same construction, and have the same effect as if they were joint and several. (e) A scrawl affixed as a seal to an instrument which professes on its face to be sealed, shall have the force and effect of one. (d)

Damages upon protested bills of exchange.-Upon bills of exchange expressed to be for value received in the state, drawn upon any person at any place within the same, if protested for non-acceptance, or non-payment, damages will be allowed at the rate of two per cent. on the principal sum specified in the bill ; if drawn within the state, but payable in any of the states of Alabama, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, Indiana, Illinois, Missouri, or any point on the Ohio river, four per cent. damages; if drawn within the state, but payable at any place within the United States, not already mentioned, damages at the rate of five per cent. on the principal sum; if drawn within the state and payable beyond the limits of the United States, damages at the rate of ten per cent. Damages may also be recovered by the holder from the acceptor, at the rate of two per cent. on inland bills; at the rate of six per cent. on bills drawn upon any person at a place within the state, by a person

(a) R. S. 107, 149. (b) Acts of 1838, 10. (c) R. S. 475. (d) Ib. 187.

Interest-Frauds.-Limited Partnerships.

without the state, but within the United States; at the rate of ten per cent. on bills drawn on a person within the state, by a person at a place without the limits of the United States. In addition to the damages thus allowed, the holder may recover besides costs of protest, interest at the rate of ten per cent. from the date of the protest until payment. (a)

3. Interest.

Parties may stipulate for any rate of interest not exceeding ten per cent, on a contract, whether under seal or not, for the payment of money. When no rate of interest is fixed by the parties in their agreements, six per cent. is the rate established by law. All contracts in which more than ten per cent. interest is reserved, are void, except in the case of bills of exchange and promissory notes which have passed into the hands of an innocent holder, for a valuable consideration without notice of the usury. The usurious lender is liable to no penalty, but the borrower who has paid the usury may recover the same, by action at any time within one year following the payment. (b)

4. Frauds.

The English statute of frauds and perjuries has been adopted, except in the addition of the words "agreement, promise, or con. tract" in the clause requiring a writing. (c)

The statutes against fraudulent conveyances, have been adopted without any material alteration. (d)

5. Limited Partnerships.

Limited partnerships were authorized by an act passed in 1838. The details of the act are almost identical with those of Wisconsin. (e)

(a) R. S. 149. (b) Ib. 469. (c) Ib. 186.

(d) Ib. 413. (d) Ib. 599.

Effect of Marriage upon Rights of Property.-Limitation of Actions.

6. Effect of Marriage upon Rights of Property.

A married woman may acquire the legal title to any real or personal estate, which may come to her during coverture by bequest, demise, gift, or distribution, unless the same comes from her husband. A woman possessed of slaves at the time of her marriage, or who may become entitled to the same during coverture, shall hold them as her separate property, exempt from any liability for the debts or contracts of her husband. The title to such slaves is to be transferred in the manner required by law for the disposition of the real estate of feme coverts. The husband, however, may manage such slaves, and receive and enjoy the proceeds of their labor during coverture. To entitle a married woman to the benefit of these provisions, the law requires that she and her husband should make out a schedule of the property derived through her, under oath, to be verified by the oath of some other reputable person, and filed in the recorder's office of the county within which the property is, as well as within which they live. (a)

7. Limitation of Actions.

Actions upon promissory notes or other writings not under seal, must be commenced within five years after the cause of action accrues; upon all sealed instruments, judgments, and decrees, within ten years; all actions of account, assumpsit, or case, founded on any other contract or liability, three years. There is the usual saving in favor of infants, feme coverts, and persons non compos mentis, after the removal of their respective disabilities, for the period of limitation. Non-residents are subject to the limitation equally with residents, except where a debtor has absconded from another state into Arkansas, without the knowledge of his creditor. (b)

Any acknowledgment to take a case out of the operation of the statute, or to bind a person for a debt contracted during infancy, must be in writing. One joint contractor or executor is not bound by the promise of another. (c)

(a) Acts of 1846, 38.

(b) Ib. 39.

(c) R. S. 528, 531.

Attachment.-Proceedings in Civil Suits.

8. Attachment.

Any creditor who will make an affidavit or procure that of some credible person, stating that a person is justly indebted to the plaintiff in a sum, to be named, exceeding one hundred dollars, and that such person is a non-resident of the state, or is about to remove from the state, or to remove his goods and effects out of the state, or so secretes himself that the ordinary process of law cannot be served upon him, and at the same time files a bond with sufficient security, conditioned to prove his debt or demand on a trial at law, or to pay such damages as may be adjudged against him, may obtain a writ of attachment against any estate, real or personal, of his debtor, in whose soever hands to be found, within the county. Process of garnishment may be served at the same time upon any person supposed to be indebted to the defendant. The usual proceedings are had, when the plaintiff disputes the return of the garnishee, to try the truth of the same, and a judgment is rendered accordingly; as also where any third person contests the title of the defendant to a portion of the property claimed. After the ordinary notice by publication, a judgment may be rendered against the defendant, and so much of the property attached may be sold as is necessary to satisfy the claim of the plaintiff.

There are similar provisions for attachments before justices of the peace, when the debt does not exceed one hundred dollars. (b)

Attachment of vessels.-Boats and vessels of all descriptions, navigating any of the waters of the state, are made liable for debts contracted by the owners, masters, supercargoes, or assignees thereof, on account of work done or supplies furnished to such boat. (c)

9. Proceedings in Civil Suits.

Process.-Suits may be commenced in civil actions in one of three modes, viz.: by a writ of summons, a capias ad respondendum, or an attachment of property. The latter of these modes

(a) R. S. 115.

(b) Ib. 109.

(c) Ib. 125.