r ^:i UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ■f u THE CR^IL CODE STATE OF CALIFORNIA, A8 ENACTED IN 1S72, AMENDED AT SUBSEQUENT SES- SIONS, AND ADAPTED TO THE CONSTITUTION OF 1S79; AND AN APPENDIX OF GENEEAL LAWS UPON THE SUBJECTS EM- BRACED IN THE CODE. COMPILED BT JAMES H. DEERING. SAN FRANCISCO: BANCROFT-WHITNEY COMPANY. 1897. Copyright, 1897, By BANCROFT-WHITNEY COMPANY. <5 /pT OP- J^,^^/ AP^^S Bak Francisco: The Filmxr-Rollins Electrotype Cojipany, TYPOGRAPHERS AND STEREOTYPERS. CONTENTS. Division First. sections PART I. PERSONS 25-42 II. PERSONAL RIGHTS 43-50 III. PERSONAL RELATIONS 55-276 Title I. Marriage 55-181 Chapter I. Tlie contract of marriage. 55-80 II. Divorce 82-148 HI. Husband and wife 155-181 Title II. Parent and Cliild 193-230 Chapter I. By birth 193-211 II. By adoption 221-230 Title HI. Guardian and Ward 236-258 IV. Master and Servant 264-270 PART IV. CORPORATIONS 283-643 Title I. General Provisions Applicable to all Corporations 283-403 Chapter I. Formation of corporations 283-320 II. Corporate stoclx 322-349 HI. Corporate powers 354-393 IV. Extension and dissolution of corporations 399-403 Title 11. Insurance Corporations 414-448 Chapter I. General provisions 414-420 II. Fire and marine insur- ance corporations 424-431 III. Mutual life, health, and accident insurance cor- porations 437-452 I IV. CONTENTS. sections Title III. Railroad Corporations 454-491 Chapter I. Officers and corporate stocli 454-459 II. Enumeration of powers . . 465-478 III. Business, how conducted . 479-491 Title IV. Street Railroad Corporations. 497-511 V. Wagon Road Corporations... 512-523 VI. Bridge, Ferry Wharf, Chute, and Pier Corporations 528-531 VII. Telegraph Corporations 536-541 VIII. Water and Canal Corpora- tions 548-552 IX. Homestead Corporations .... 557-566 X. Savings and Loan Corpora- tions 571-579 XI. Mining Corporations 584-587 XII. Religious, Social, and Benev- olent Corporations 593-602 XIII. Cemetery Corporations 608-614 XIV. Agricultural Fair Corpora- tions 620-622 XV. Gas Corporations 628-632 XVI. Land and Building Corpora- tions 639-648 XVII. Colleges and Seminaries of Learning 649-651 XVIII. Consolidation of Colleges and Institutions of Higher Edu- cation 652-653 Division Second. PART I. PROPERTY IN GENERAL . . 654-749 Title I. Nature of Property 654-663 II. Ownership 669-742 Chapter I. Owners 669-672 II. Modifications of owner- ship 678-726 CONTENTS, V. sections Chapter III. Rights of owners 732-733 IV. Termination of ownership. 739-742 Title III. General Definitions 748-749 PART II. REAL OR IMMOVABLE PROPERTY 755-940 Title I. General Provisions 755 II. Estates in Real Property 761-811 Chapter I. Estates in general 761-781 II. Termination of Estates... 789-79a III. Servitudes 801-811 Title III. Rights and Obligations of Owners 818-841 Chapter I. Rights of owners 818-834 II. Obligations of owners .... 840-841 Title IV. Uses and Trusts 847-871 V. Powers (repealed). PART III. PERSONAL OR MOVABLE PROPERTY 946-994 Title I. Personal Property in General. 946-947 II. Particular Kinds of Personal Property 953-994 Chapter I. Things in action 953-954 II. Shipping 960-973 III. Products of the mind 980-985 IV. Other kinds of personal property 991-994 PART IV. ACQUISITION OF PROP- ERTY 1000-1422 Title I. Modes in which Property may be Acquired 1000-1001 II. Occupancy 1006-1007 III. Accession 1013-1033 Chapter I. To real property 1013-1019 II. To personal property . . 1025-1033 Title IV. Transfer 1039-1231 Chapter I. Transfer in general 1039-1085 VI. CONTENTS. sections Cliapter II. Transfer of real prop. erty 1091-1115 III. Transfer of personal property 1135-1153 IV. Recording' transfers of real property 1158-1217 V. Unlawful transfers 1227-1231 Title V. Homesteads 12.37-12G9 Chapter I. General provisions 1237-1261 II. Homestead of the head of a family 1262-1265 III. Homestead of other persons 1206-1269 Title VI. Wills 1270-1377 Chapter I. Execution and revoca- tion of wills 1270-1313 II. Interpretation of wills. . 1317-1351 III. General provisions relat- ing to wills 1357-1377 Title VII. Succession 1383-1408 VIII. Water Iliglits 1410-1422 IX. Hydraulic mining 1424-1425 Division Third. PAllT I. OBLIGATIONS IN GEN- ERAL 1427-1543 Title I. Definition of Obligations . . . 1427-1428 II. Interpretation of Obligations. 1429-1451 Chapter I. General Rules of Inter- pretation 1429 II. Joint or several obliga- tions 1430-1432 HI. Conditional obligations. 1434-1442 IV. Alternative obligations.. 1448-1451 Title HI. Transfer of Obligations . . . 1457-1467 IV. Extinction of Obligations. . 1473-1543 CONTENTS. VII. sections Chapter I. Performance 1473-1479 II. Offer of performance. ., 1485-1505 III. Prevention of perform- ance or offer 1511-1515 IV. Accord and satisfaction. 1521-1524 V. Novation 1.5.30-1533 YI. Release 1.541-1543 PART II. CONTRACTS 1549-1701 Title I. Nature of a Contract 1549-1(315 Chapter I. Definition 1.549-1550 II. Parties 1556-1559 III. Consent 1565-1589 IV. Object 1595-1599 V. Consideration 1605-1615 Title II. Manner of creating Con- tracts 1619-1629 III. Interpretation of Contracts. 1635-1661 IV. Unlawful Contracts 1667-1676 V. Extinction of Contracts . . . 1682-1701 Chapter I. Contracts, how extin- guished 1682 II. Rescission 1688-1691 III. Alteration and can- cellation 1697-1701 PART III. OBLIGATIONS IMPOSED BY LAW 1708-1715 PART IV. OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS 1721-.3268 Title I. Sale 1721-1798 Chapter I. General provisions 1721-1741 II. Rights and obligations of the seller 1748-1778 III. Rights and obligations of the buyer 1784-1786 IV. Sale bv auction 1792-1798 VIII. CONTENTS. sections Title II. Exchange 1804-1807 III. Deposit 1813-1878 Chapter I. Deposit in general 1813-1827 II. Deposit for keeping 1833-1872 III. Deposit for exchange... 1878 Title IV. Loan 1844-1920 Chapter I. Loan for use 1844-1896 II. Loan for exchange 1902-1906 III. Loan of money 1912-1920 Title V. Hiring 1925-1959 Chapter I. Hiring in general 1925-1935 II. Hiring of real property. 1941-1950 III. Hiring of personal prop- erty 1955-1959 Title VI. Service 1965-2079 Chapter I. Service with employ- ment 1965-2003 II. Particular employments. 2009-2072 HI. Service without employ- ment 2078-2079 Title VII. Carriage 2085-2209 Chapter I. Carriage in general 2085-2090 II. Carriage of persons 2096-2104 III. Carriage of property. . . . 2110-2155 IV. Carriage of messages . . 2161-2162 V. Common carriers 2168-2209 Title VIII. Trust 2215-2289 Chapter I. Trusts in general 2215-2244 II. Trusts for the benefit of third persons 2250-2289 Title IX. Agency 2295-2389 Chapter I. Agency in general 2295-2356 Particular agencies 2362-2389 Title X. Partnership 2395-2520 Chapter I. Partnership in general. . 2395-2418 II. General partnership . . . 2224-2471 III. Special partnership 2477-2510 IV. Mining partnership 2511-2520 CONTENTS. IX. sections Title XI. Insurance 2527-2766 Chapter I. Insurance in general . . 2527-2649 II. Marine insurance 2655-2746 III. Fire insurance 2752-2756 IV. Life and health insur- ance 2762-2766 Title XII. Indemnity 2272-2781 XIII. Guaranty 2787-2866 Chapter I. Guaranty in general . . . 2787-2825 II. Suretyship 2831-2866 Title XIV. Lien 2872-3080 Chapter I. Liens in general 2872-2913 II. Mortgage 2920-2971 III. Pledge 2986-3011 IV. Bottomry 3017-3029 V. Respondentia 3036-3040 IV. Other liens 3046-3060 VII. Stoppage in transit 3076-3080 Title XV. Negotiable Instruments. .. 3086-3262 Chapter I. Negotiable instruments in general 3086-3165 II. Bills of exchange 3171-3238 III. Promissory notes 3244-3248 IV. Checl^s 3254-3255 V. Banlv notes and certifi- cates of deposit 3261-3262 Title XVI. General Provisions 3268 Division Fourth. PART I. RELIEF 3274-3423 Title I. Relief in general 3274-3275 II. Compensatory Relief 3281-3360 Chapter I. Damages in general. . . . 3281-3294 II. Measure of damages 3300-3360 Title III. Specific and Preventive Re- lief 3366-3428 X. CONTENTS. sections Chapter I. General principles 33013-33G9 II. Specific relief 3375-3414 III. Preventive relief 3420-3423 PART II. SPECIAL RELATIONS OF DEBTOR AND CRED- ITOR 3429-3473 Title I. General Principles 3429-3433 II. Fraudulent Instruments and Transfers 3439-3442 III. Assignments for the Benefit of Creditors 3449-3473 PART III. NUISANCE 3479-3503 Title I. General Principles 3479-3484 II. Public Nuisances 3490-3495 III. Private Nuisances 3501-3503 PART IV. MAXIMS OF JURISPRU- DENCE 3509-3543 CONTENTS. XI. SUMMARY OF CONTENTS. sections PRELIMINARY PROVISIONS 2- 21 DIVISION I. RELATING TO PER- SONS 25-648 Part I. Persons 25- 42 11. Personal Rights 43- 50 III. Personal Relations 55- 276 IV. Corporations 283- 648 DIVISION II. RELATING TO PROP- ERTY 654-1422 Part I. Property in General 654- 749 II. Real Property 755- 940 III. Personal Property 953- 994 IV. Acquisition of Property 1000-1422 DIVISION IIL RELATING TO OBLI- GATIONS 1427-3268 Part I. Obligations in General 1427-1543 II. Contraeis 1549-1701 III. Obligations Imposed by Law 1708-1715 IV. Arising from Particular Transactions 1721-3268 DIVISION IV. GENERAL PROVI- SIONS RELATING TO THE PRECED- ING PROVISIONS.. 3274-3543 Part I. Relief 3274-3423 II. Relations of Debtor and Creditor 3429-3473 III. Nuisance 3479-3503 IV. Maxims of Jurisprudence.. . 3509-3543 k THE CIVIL CODE OF THE STATE OF CALIFORNIA. IN FOUR DIVISIONS. THE CIVIL CODE OF THE STATE OF CALIFORNIA. AN ACT TO ESTABLISH A CIVIL CODE. [Approved March 21st, 1872.] The People of the State of California, represented in Senate and Assembly, do enact as follows: TITLE OF THE ACT. § 1. This act shall be known as The Civil Code of the State of California, and is in Four Divi- sions, as follows:— I. The First relating to Persons. II. The Second to Property. III. The Third to Obligations. I\'. The Fourth contains General Provisions re- lating to the three Preceding Divisions. Act how cited: See sec. 21, post. §§ 2-4 PRELIMINARY PROVISIONS. PRELIMINARY PROVISIONS, § 2. When this Code takes effect. § 3. Not Retroactive. § 4. Rules of construction. § 5. Provisions similar to existing laws, how construed. § 6. Actions, etc., not affected. § 7. Holidays. § 8. Same. § 9. Business days. § 10. Computation of time. § 11. Certain acts not to be done on holidays. § 12. Joint authority construed. § 13. Words and phrases, how construed. § 14. Certain terms defined. § 15. Good faith, what constitutes, (Repealed.) § 16. Degrees of care and diligence. (Repealed.) § 17. Degrees of negligence. (Repealed.) § 18. Notice, actual and constructive. § 19. Constructive notice, when deemed. § 20. Effect of repeal. § 21. This Act, how cited. § 2. This Code takes effect at twelve o'clock noon on the first day of January, eighteen hun- dred and seventy-three. Effect of codes generally: See sees. 4478 et seq. of the Polit. Code. Similar provision in other Codes of California: See sec. 2 thereof. Effect of this Code: See subsequent sees. 3-19, inclusive, and see those sections as found in the Polit. Code. Publication of the Codes: See sec. 4494 of the Polit. Code. § 3. No part of it is retroactive, unless expressly so declared. § 4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code estab- lishes the law of this State respecting the subjects 5 PRELIMINARY PROVISIONS. §§ 5, 6 to which it relates, and its provisions are to be lib- erally construed with a view to effect its objects and to promote justice. Effect of Codes generally: See sees. 4478 et seq. of the Polit. Code. § 5. The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continua- tions thereof, and not as new enactments. § 6. No action or proceeding commenced before this Code takes effect, and no right accrued, is af- fected by its provisions. Effect of Codes: See Code Civ. Proc, sec. 8; Polit. Code. sec. 8. The amendatory act of March 30, 1874, Amend- ments 1S73-4, 181-269, from which most of the amendments and new sections of the Civil Code are taken, contained three additional sections, re- lating to its effect, as follows: The amendatory act of 1874 contained the fol- lowing provision: Sec. 286. All provisions of law inconsistent with the provisions of this act are hereby repealed, but no rights acquired or proceedings taken under the provisions repealed shall be impaired or in any manner affected by this repeal; and whenever a limitation or period of time is prescribed by such repealed provisions for acquiring a right or bar- ring a remedy, or for any other purpose, has be- gun to run before this act takes effect, and the same or any other limitation is prescribed by this act, the time of limitation which shall have run when this act takes effect shall be deemed part of the time prescribed by this act. Effect of amendatory act as to other acts passed at session of 1871-2 is shown by the following pro- vision: Sec. 287. With relation to the laws passed at §§ 7-9 PRELIMINARY PROVISIONS. 6 the present session of the legislature, this act must be construed as though it had been passed at the first day of the present session; if the provisions of any law passed at the present session of the legislature contravene or are inconsistent with the provisions of this act, the provisions of such law must prevail. Sec. 288. This act shall tal^e effect on the first day of July, one thousand eight hundred and sev- enty-four. § 7. Holidays, within the meaning of this Code, are every Sunday, the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the first Monday of September, the twenty-fifth day of December, every day on which an election is held throughout the State, and every day appointed by the President of the United States, or by the Governor of the State, for a public fast, thanksgiving, or holiday. If the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, or the twenty-fifth day of December shall fall upon a Sunday, the Monday following is a holiday. [Ap- proved February 2'6, 1897, ch. XV'III.] This section was also amended in 1893; Stats. 1893. p. 186. Holidays, when counted: See sec. 11. § 8. If the first of January, the twenty-second of February, the fourth of July, or the twenty- fifth of December falls upon a Sunday, the Mon- day following is a holiday. § 9. All other days than those mentioned in the last two sections are to be deemed business days for all purposes. See sec. 11. 7 PRELIMINARY PROVISIONS. §§ 10-14 § 10. The time in which any act provided by iaw is to be done Is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded. Time, how computed, and year, weeli, and day defined: See sees. 3255 et seq. of Polit. Code. The Supreme Court is always open for the trans- action of business: Sec. 134, Code Civ. Proc. § 11. Whenever any act of a secular nature, other than a work of necessity or mercy, is ap- pointed by law or contract to be performed upon a particular day, which day falls upon a holiday, it may be performed upon the next business day with the same effect as if it had been performed upon the day appointed. Compare with sec. 9, supra. § 12. Words giving a joint authority to three or more public officers or other persons are con- strued as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. § 13. Words and phrases are construed accord- ing to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or defi- nition. Words and phrases, how construed.— The above is the general rule with regard to the construction of words, whether in contracts, statutes, or con- stitutions. The meaning to be given to words in contracts is provided for in this Code, sees. 1644, 1645, and in the Code of Civil Procedure, sec. 1861. § 14. Words used in this Code in the present §§ 15-18 PRELIMINARY PROVISIONS. 8 tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural and the plural the singular; the word person includes a corporation as well as a natural person; writing includes printing; oath includes affirmation or declaration; and every mode of oral statement under oath or affirmation is embraced by the term "testify," and every written one in the term "depose"; signature or subscription in- cludes mark, when the person cannot write, his name being written near it, and written by a person who writes his own name as a witness. The following words also have in this Code the signification attached to them in this section, un- less otherwise apparent from the context: 1. The word "property" includes property real and personal; 2. The words "real property" are coextensive with lands, tenements, and hereditaments; 3. The words "personal property" include money, goods, chattels, things in action, and evi- dences of debt; 4. The word "month" means a calendar month, unless otherwise expressed; and, 5. The word "will" includes codicils. [Amend- ment approved March 30, 1874; Amendments 1ST3-4, 181. In effect July 1, 1876.] Words used in boundaries are defined in sees. 3903 to 3907 of the Polit. Code. §§ 15, 16, 17. [Repealed March 30, 1874; Amendments 1873-4, 182. In effect July 1, 1874.] § 18. Notice is: 1. Actual— which consists in express informa- tion of a fact; or. 2. Constructive— which is imputed by law. 9 PRELIMINARY PROVISIONS. §§ 19-21 § 19. Every person who has actual notice of circumstances sufficient to put a prudent man up- on inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact. [Amendment approved March 30, 1874; Amendments 1873-4, 182. In effect July, 1874.] Constructive notice — Recording instruments: See, post, sec. 1213. § 20. No statute, law, or rule is continued in force because it is consistent with the provisions of this Code on the same subject; but in all cases provided for by this Code, all statutes, laws, and rules heretofore in force in this State, whether consistent or not with the provisions of this Code, unless expressly continued in force by it, are re- pealed or abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any ac- tion or proceeding already fallen, except as in this Code provided. Statutes continued in force: See sec. 19 of the Polit. Code and Penal Code, and Statutes in Force. Vested rights: See sec. 6. § 21. This act, whenever cited, enumerated, re- ferred to, or amended, may be designated simply as "The Civil Code," adding, when necessary, the number of the section. Title of the act: See ante, sec. 1. DIVISION FIRST. Part I. Persons, §§ 25-42. II. Personal Riohts, §§ 43-50. III. Personal Relations, §§ 55-276. IV. Corporations, §§ 283-648. J PART I. PERSONS. § 25. Minors, who are. § 23. Periods of minority, how calculated. § 27. Adults, who are. § 28. Status of minors, how changed. (Repealed.) § 29. Unborn child. § 30. Persons made adults by other states, considered as such in this state, when domiciled herein. (Re- pealed.) § 31. Jlinors by the laws of other State or country, how considered in this State. (Repealed.) § 32. Custody of minors. § 33. Minors cannot give a delegation of power. § 34. Contracts of minors made; disaffirmed, § 35. When minor may disaffirm. § 36. Cannot disaffirm contract for necessaries. § 37. Nor certain obligations. § 38. Contracts of persons without understanding. § 39. Contracts of other insane persons. § 40. Powers of persons whose incapacity has been ad- judged. § 41. Minors liable for wrongs, but not liable for exemp- lary damages. § 42. Minors may enforce their rights. § 25. Minors are: 1. Males under t\renty-one years of age; 2. Females under eighteen years of age. § 26. The periods specified in the preceding section must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority. § 27. All other persons are adults. § 28. [Repealed March 30, 1874; Amendments 1873-4, 182. In effect July 1, 1874.1 Civ. Code— 2 §§ 29-35 PERSONS. 14 § 29. A child couceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth. See also sections 1337 and 1339, posthumous children taking under will. §§ 30, 31. [Repealed March 30, 1874; Amend- ments 1873-4, 182. In effect July 1, 1874.] § 32. The custody of minors and persons of unsound mind is regulated by Part III of this division. § 33. A minor cannot give a delegation of power, nor under the age of eighteen, make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control. [Amend- ment approved March 30, 1874; Amendments 1873-4, 182. In effect July 1, 1874.] § 34. A minor may make any other contract than as above specified, in the same manner as an adult, subject only to his power of disaffirm- ance under the provisions of this title, and sub- ject to the provisions of the titles on Marriage, and on Master and Servant. [Amendment ap- proved March 30, 1874; Amendments 1873-4, 183. In effect July 1, 1874.] Marriage: See sees. 55 et seq. Master and servant: See sees. 264 et seq. § 35. In all cases other than those specified In sections thirty-six and thirty-seven, the contract of a minor, if made whilst he is under the age of eighteen, may be disaffirmed by the minor him- self, either before his majority or within a rea- sonable time afterwards; or, in case of his death within that period, by his heirs or personal rep- resentatives; and if the contract be made by the minor whilst he is over the age of eighteen. It 15 PERSONS. §§ 36-40 may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received, or paying its equivalent. [Amendment approved March 30, 1874; Amendments 1873-4, 183. In effect July 1, 1874.] § 36. A minor cannot disaffirm a contract, oth- erwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them. [Amendment approved March 30, 1874; Amendments 1873-4, 183. In effect July 1, 1874.] § 37. A minor cannot disaffirm an obligation, otherwise valid, entered into by him under the express authority or direction of a statute. § 38. A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family. [Amendments approved March 30, 1874: Amendments 1873-4, 183. In ef- fect July 1, 1874.] § 39. A conveyance or other contract of a per- son of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescis- sion, as provided in the chapter on Rescission of this Code. [Amendment approved March 30, 1874: Amendments 1873-4, 184. In effect July 1, 1874.] See post, sec. 1550. § 40. After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power, nor waive any right, until his restora- tion to capacity. But a certificate from the medi- §§ 41, 42 PERSONS. 16 cal superintendent or resident physician of the insane asylum to which such person may have been committed, showing that such person has been discharged tlierefrom cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such discharge. [Amendment approved March 30, 1878; Amendments 1877-8, 75. In effect May 29, 1878.] § 41. A minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary dam- ages unless at the time of the act he was capable of knowing that it was wrongful. § 42. A minor may enforce his rights by civil action, or other legal procedings, in the same manner as a person of full age, except that a guardian must conduct the same. PAKT II. PERSONAL EIGHTS. § 43. General personal rights. § 44. Defamation, what, § 45. Libel, what. § 46. Slander, what. § 47. "What communications are privileged. § 48. Malice not inferied. § 49. Protection to personal relations. § 50. Right to use force. § 43. Besides the personal rights mentioned or recognized in the Political Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal Insult, from defamation, and from injury to his personal relations. See Pol. Code, sees. 37, 50-60; Penal Code, sees. 34G-349. § 44. Defamation is effected by: 1. Libel; 2. Slander. § 45. Libel is a false and unprivileged publi- cation by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or ob- loquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. See sec. 461, Code Civ. Proc. Privileged publication: See sees. 47, 48, infra. §§ 46, 47 PERSONAL RIGHTS. 18 § 46. Slander is a false and unprivileged pub- lication other than libel, which: 1. Charges any person with crime, or with hav- ing been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him m respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation pe- culiarly requires, or by imputing something with reference to his office, profession, trade, or busi- ness that has a natural tendency to lessen its profit; - • ' 4. Imputes to him impotence or a want of chas- tity; or, 5. Which, by natural consequence, causes act- ual damage. § 47. A privileged publication is one made— 1. In the proper discharge of an official duty. 2. In any legislative or judicial proceeding, or in any other official proceeding authorized by law. 3. In a communication, without malice, to a person interested therein, by one who is also in- terested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing tlie motive for the commu- nication innocent, or who is requested by the per- son interested to give the information. 4. By a fair and true report, without malice, in a public journal, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof, or of a verified charge or complaint made by any person to a public of- ficial, upon which complaint a warrant shall have been issued. 5. By a fair and true report, without malice, of the proceedings of a public meeting, if such meet- 19 PERSONAL RIGHTS. §§ 48-50 ing was lawfully couvened for a lawful purpose and open to the public, or the publication of the matter complained of was for the public benefit. [Amendments approved March 26, 1895, Stats. 1895, p. 123. In effect immediately.] § 48. In the cases provided for in subdivisions three, four, and live, of the preceding section, malice is not inferred from the communication or publication. [Amendment approved March 26, 1895; Stats. 1895, p. 123. In effect immediately.] § 49. The rights of personal relation forbid: 1. The abduction of a husband from his wife, or of a parent from his child; 2. The abduction or enticement of a wife from her husband, of a child from a parent or from a guardian entitled to its custody, or of a servant from his master; 3. The seduction of a wife, daughter, orphan sister, or servant; 4. Any injury to a servant which affects his ability to serve his master. Action for seduction: See sees. 374, 375, Code Civ. Proc. § 50. Any necessary force may be used to pro- tect from wrongful injury the person or property of one's self, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest. [Amend- ment approved March 30, 1874; Amendments 1873-4, 184. In effect July 1, 1874.] Lawful resistance to the commission of of- fenses. See Penal Code, sees. 692-694. PAET III. PERSONAL RELATIONS. Title I. Marriage, §§ 55-181. II. Parent and Child, §§ 193-230. III. Guardian and Ward, §§ 236-258. IV. Master and Servant, §§ 264-276. TITLE I. MARRIAGE. Chapter I. The Contract of Marriage, §§ 55-80. II. Divorce, §§ 82-148. III. Husband and Wife, §§ 155-181. CHAPTER L THE CONTRACT OP MARRIAGE. Article I. Validity of Marriage, §§ 55-63. II. Authentication of Marriage, §§ 68-78. III. Judicial Determination of Void Marriage, § i ARTICLE I. VALIDITY OF MARRIAGE. § 55. What constitutes marriage. § 56. Minors capable of contracting marriage. § 57. Marriage, how manifested and proved. § 58. Certain marriages voidable. § 59. Incompetency of parties to. § 60. Of whites and pperoes or mulattoes, void. 5 61. Polygamy forbidden. § 62. Released from marriage contract, when. S 63. Marriage contracted without the State. 21 MARRIAGE. §§ 55-59 § 55. Marriage is a personal relation arising out of a civil contract, to Avliicli the consent of parties capable of making that contract is neces- sary. Consent alone will not constitute marriage; it must be followed by a solemnization autlior- ized by this Code. [Amendment approved March 26, 1895; Stats. 1895, p. 88. In effect in sixty days.] Bigamy is defined in Penal Code, sec. 281, and punished by sees. 283-4. § 56. Any unmarried male of the age of eight- een years or upwards, and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of consenting to and consummating marriage. § 57. Consent to marriage and solemnization thereof may be proved under the same general rules of evidence as facts are proved in other cases. [Amendment approved March 26, 1895; Stats. 1895, p. 88. In effect in sixty days.] § 58. If either party to a marriage be incapa- ble from physical causes of entering into the mar- riage state, or if the consent of either be obtained by fraud or force, the marriage is voidable. [Amendment approved March 30, 1874; Amend- ments 1873-4, 185. In effect July 1, 1874.] Penalty for false personation in marital rela- tions, Penal Code, sec. 528. See sec. 82, subd. G. § 59. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate. §§ 60-63 MARRIAGE. 22 Penalty for incestuous marriages, Penal Code, sees. 285, 359. § 60. All marriages of white persons with ne- groes or mulattoes are illegal and void. § 61. A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: 1. The former marriage has been annulled or dissolved; provided, that in case it be dissolved, the decree of divorce must have been rendered and made at least one year prior to such subse- quent marriage. 2. Unless such former husband or wife was absent, and not linown to such person to be living for the space of live successive years immediate- ly preceding such subsequent marriage, or was generally reputed or believed by such person to be dead, at the time such subsequent marriage was contracted; in either of which cases the sub- sequent marriage is valid until its nullity is ad- judged by a competent tribunal. [Approved February 25, 1897; ch. xxxvi.] Penalty for bigamy, Penal Code, sees. 283-84; exceptions, sec. 282. § 62. Neither party to a contract to marry is bound hy a promise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct on the part of the other; unless both parties participate therein. [Amendment approved March 30, 1874; Amendments 1873-4, 185. In effect July 1, 1874.] § 63. All marriages contracted without this State, which would be valid by the laws of the country in which the same w^ere contracted, are valid in this State. 23 MARRIAGE. §§ 68, 69 ARTICLE II. AUTHENTICATION OF MARRIAGE. § 68. Marriage, how solemnized. § 69. Marriage license. § 70. By whom solemnized. § 71. No particular form of solemnization. § 72. Substantial requisites. § 73. Certificate of marriage. § 74. Certificate to parties and recorder. § 75. Declaration of marriage, how made. § 76. Declaration to contain what. § 77. To be acknowledged and recorded. § 78. Action between the parties to determine validity. § 79. Persons who may be married without license. § IdVz. Members of particular religious denomination. § 68. Marriage must be licensed, solemnized, authenticated, and recorded as provided in this article; but noncompliance with its provisions by other than the parties to a marriage does not in- validate that marriage. [Amendment approved March 26, 1895; Stats. 1895, p. 88. In effect in sixty days.] § 69. All persons about to be joined in mar- riage must first obtain a license therefor from the county clerk of the county in which the marriage is to be celebrated, showing: 1. The identity of the parties; 2. Their real and full names and places of res- idence; 3. Their ages. 4. If tlie male be under the age of twenty-one, or the female under the age of eighteen years, the consent of the father, mother, or guardian, or of one having the charge of such person, if any such be given: or that such nonaged person has been previously, but is not at the time, married. For the purpose of ascertaining these facts, the clerk is authorized to examine parties and wit- nesses on oath, and to receive affidavits, and he must state such facts in the license. If the male be under the age of twenty-one years, or the fe- §§ 70-73 MARRIAGE. 24 male be under the age of eighteen, and such per- son has not been previously married, no license shall be issued by the clerk, unless the consent in writing of the parents of the person under age, or of one of such parents, or of his or her guard- ian, or of one having charge of such person, be presented to him; and such consent shall be filed by the clerk, provided that the said clerk sliall not issue a license authorizing the marriage of a white person with a negro, mulatto, or Mongo- lian. [Amendment approved April 6, 1880; Amendments 1880, 3. In effect immediately.] § 70. Marriage may be solemnized by either a justice of the Supreme Court, judge of the Supe- rior Court, justice of the peace, priest, or minis- ter of the gospel of any denomination. [Amend- ment approved April 6, 1880; Amendments 1880, 3. In effect immediately.] Penalty for solemnization of illegal marriage, Penal Code. sec. 359. § 71. No particular form for the ceremony of marriage is required, but the parties must de- clare, in the presence of the person solemnizing the marriage, that they take each other as hus- band and wife. [Const. Cal. 1879, art. 20, sec. 7; so also art. 11, sec. 12, former constitution.] § 72. The person solemnizing a marriage must first require the presentation of the marriage li- cense; and if he has any reason to doubt the cor- rectness of its statement of facts, he must first satisfy himself of its correctness, and for that purpose he may administer oaths and examine the parties and witnesses in like manner as the county clerk does before issuing the license. [Amendment approved March 30. 1874; Amend- ments 1873-4, 186. In effect July 1, 1874.] § 73. The person solemnizing a marriage must make, sign, and indorse upon, or attach to, the license, a certificate, showing: 25 MARRIAGE. §§ 74-78 1. The fact, time, and place of solemnization; and 2. The names and places of residence of one or more witnesses to tlie ceremony, [Amendment approved March 30, 1874; Amendments 1873-4, 187. In effect July 1, 1874.] Penalty for false return. Penal Code, sec, 300. § 74. He must, at the request of, and for either party malie a certified copy of the license and certificate, and file the originals with the county recorder within thirty days after the marriage. Recorder must record: Pol. Code, sec. 4235. § 75. Section seventy-five repealed. [Amend- ment, approved March 26, 1895; Stats. 1895, S8. In effect in sixty days.] § 76. If no record of the solemnization of a, marriage heretofore contracted be known to ex- ist, the parties may join in a written declaration of such marriage, substantially showing: 1, The names, ages, and residences of the par- ties; 2, The fact of marriage; 3, That no record of such marriage is linown to exist. Such declaration must be subscribed by the parties and attested by at least three witnesses. [Amendment approved March 30, 1874; Amend- ments 1873-4, 187. In effect July 1, 1874.] See Penal Code, sec. 360, § 77, Declarations of marriage must be ac- knowledged and recorded in lilvc manner as grants of real property. See Pol. Code, sec, 42.35. § 78. If either party to any marriage denies the same, or refuses to join in a declaration there- of, the other may proceed, by action in the Supe- rior Court, to have the validity of the marriage determined and declared. [Amendment approved Civ. Code— 3 §§ 79, 791^ MARRIAGE. 23 February 15, 1883; Stats. 1883, 3. In effect Feb- ruary 15, 1883.] § 79. When unmarried persons, not minors, have been living togetlier as man and wife, they may, without a license, be married by any clergy- man. A certificate of such marriage must, by the clergyman, be made and delivered to the parties, and recorded upon the records of the church of which the clergyman is a representative. No oth- er record need be made. [New section approved February 6, 1878; Amendments 1877-8, 75. In ef- fect February 6, 1878.] § 79^/4- The provisions of this chapter, so far as they relate to procui-ing licenses and the solemn- izing of marriages, are not applicable to members of any particular religious denomination having, as such, any peculiar mode of entering the mar- riage relation; but such marriages shall be de- clared, as provided in section seventy-six of the Civil Code of this State, and shall be acknowl- edged and recorded, as provided in section seventy- seven of said Civil Code. Where a marriage is declared as is provided in section seventy-six, the husband shall file said declaration with the County Recorder within thirty days after said marriage, and upon receiving the same the County Recorder shall record the same; and if the husband fail to make such declaration and file the same for rec- ord, as herein provided, he shall be liable to the same penalties as any person authorized to solemn- ize marriages, and who fails to make the return of such solemnization as provided by law. [New section approved March 27, 1897; Stats. 1897, c. 126.] ARTICLE III. JUDICIAL DETERMINATION OP VOID MARRIAGES. This article, as an entirety, was added to the Civil Code by act of March 15, 1876; Amendments 1875-6, 69; took effect from passage. 27 MARRIAGE. §§ 80, 82 § 80. Either party to an incestuous or void marriage may proceed by action in tlie Superior Court, to have the same so declared. [Amend- ment approved April 6, 1880; Amendments 1880, 4. In effect immediately.] CHAPTER II. DIVORCE. Article I. Nullity, §§ 82-86. II. Dissolution, §§ 90-107. III. Causes for Denying Divorce, §§ 111-130. IV. General Provisions, §§ 136-148. ARTICLE I. NULLITY. § 82. Cases where marriage may be annulled. § 83. Action to obtain decree of nullity in certain cases, when and by whom commenced. § 84. Children of annulled marriage. § 85. Custody of children. § 86. Effect of judgment of nullity. § 82. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was con- tracted without the consent of his or her parents or guardian, or person having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife; 2. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force; 3. That either party was of unsound mind, un- less such party, after coming to reason, freely co- habit with the other as husband or wife; 4. That the consent of either party was ob- tained by fraud, unless such party afterward, § 83 MARRIAGE. 28 with full knowledjre of the facts constituting]: the fraud, freely cohabited with the other as husband or wife; 5. That the consent of either party was obtain- ed by force, unless such party afterwards freely cohabited with the other as husband or wife; 6. That either party was, at the time of mar- riage, physically incapable of enterins: into the married state, and such incapacity continues, and appears to be incurable. [Amendment approved March 30, 1874; Amendments 1873-4, 187. In ef- fect July 1, 1874.] Subd. 5. Consent obtained by force: See sec. 58, ante. § 83. An action to obtain a decree of nullity of marriage for causes mentioned in the preced- ing section, must be commenced within the pe- riods and by the parties as follows: 1. For causes mentioned in subdivision one: by the party to the marriage wlio was married under the age of legal consent, within four years after arriving at the age of consent; or by a parent, guardian, or other person having charge of such nonaged male or female, at any time before such married minor has arrived at the age of legal consent; 2. For causes mentioned in subdivision two: by either party during the life of the other, or by such former husband or wife; 3. For causes mentioned in subdivision three: by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party; 4. For causes mentioned in subdivision four: by the party injured, within four years after the discovery of the facts constituting the fraud; 5. For causes mentioned in subdivision five: by the injured party, within four years after the marriage; 6. For causes mentioned in subdivision six: by the injured party, within four years after the 29 MARRIAGE. §§ 84-86 marriage. [Amendment approved March 30, 1874; Amendments 1873-4, 188. In effect July 1, 1874.] § 84. ^Vliere a marriage is annulled on the ground that a former husband or wife was liv- ing, or on the ground of insanity, children begot- ten before the judgment are legitimate, and suc- ceed to the estate of both parents. Legitimate children, who are: See sees. 193-195. See, also, when the question arises in divorce cases for adultery, sees. 144, 145. § 85. The court must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. Custody of children in divorce causes: See sec. 138, post. § 86. A judgment of nullity of marriage ren- dered is conclusive only as against the parties to the action and those claiming under them. Conclusiveness of decree for divorce: See sec. 91, post. § 90. s 91. § 92, § 93. § 94. § 95. § 96. § 97. § 98. § 99. § 100. § 101. § 102. §§ 90-92 MARRIAGE. 30 ARTICLE II. DISSOLUTION OF MARRIAGE. Marriage, how dissolved. Divorce, what. Causes for divorce. Adultery defined. Extreme cruelty, what. Desertion, what. Desertion, how manifested. In case of stratagem or fraud, who commits deser- tion. In case of cruelty, where one party leaves the other, who commits desertion. Seraration hy consent not desertion. Separation and intent to desert not always coinci- dent. Consent to separate revocable. Desertion, how cured. Effect of refusing condona- tion. § 103. Wife must abide by husband's selection of home or it is desertion on her part. § 104. If the place is unfit, and wife refuses to conform, it is desertion by the husband. § 105. Willful neglect, what. § 106. Habitual intemperance, what. § 107. Habitual intemperance for one year. § 90. Marriage is dissolved only: 1. By the death of oue of the parties; or, 2. By the judgment of a court of competent ju- risdiction decreeing a divorce of the parties. [Amendment approved March 30, 1874; Amend- ments 1873-4, 189. In effect July 1, 1874.] § 91. The effect of a judgment decreeing a di- vorce is to restore the parties to the state of un- married persons. [Amendment approved March 30, 1874; Amendments 1873-4, 189. In effect July 1, 1874.] § 92. Divorces may he granted for any of the following causes: 1. Adultery; 31 MARKIAGW. §§ 93-97 2. Extreme cruelty; 3. Willful desertion; 4. Willful neglect; 5. Habitual intemperance; 6. Conviction of felony. [Amendment approv- ed March 30, 1S74; Amendments 1873-4, 189. In effect July 1, 1874.] Findings: See generally upon this topic, Code Civ. Proc, sees. 631 et seq. Alimony: See sees. 136, post, et seq. Community property, and its disposition under proceedings for divorce: Sees. 141, post, et seq. § 93. Adultery is the voluntary sexual inter- course of a married person with a person other than the offender s husband or wife. Open and notorious adultery is punished by Act of May 15, 1872. See Stats. 1871-2, p. 380. § 94. Extreme cruelty is the infliction of griev- ous bodily injury or grievous mental suffering up- on the other by one party to the marriage. § 95. AYillful desertion is the voluntary separa- tion of one of tlie married parties from the other with intent to desert. § 96. Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion. § 97. When one party is induced, by the stratagem or fraud of the other party, to leave the family dwelling-place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other. |§ 98-103 MARRIAGE. 32 § 98. Departure or absence of one party from the family dwelling-place, caused by cruelty or threats of bodily barm, from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party. § 99. Separation by consent with or without the understanding that one of the parties will ap- ply for a divorce, is not desertion. Consent revocable: See infra, sec. 101. § 100. Absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation. [Amendment approved March 30, 1874; Amend- ments 1873-4, 189. In effect July 1, 1874.] § 101. Consent to a separation is a revocable act, and if one of the parties afterward, in good faith, seel^s a reconciliation and restoration, but the other refuses it, such refusal is desertion. § 102. If one party deserts the other, and be- fore the expiration of the statutory period re- quired to make the desertion a cause of divorce, re- turns and offers in good faith to fulfill the mar- riage contract, and solicits condonation, the de- sertion is cured. If the other party refuse such offer and condonation, the refusal shall be deem- ed and treated as desertion by such party from the time of refusal. [Amendment approved March 30, 1874; Amendments 1873-4, 190. In ef- fect July 1, 1874.] § 103. Q^he husband may choose any reasona- ble place or mode of living, and if the wife does not conform thereto, it is desertion. Same principle, sec. 156, post. Separate domicile for purposes of divorce pro- ceeding: See infra, sec. 129. 33 MARRIAGE. §§ 104-107 § 104. If the place or mode of living selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is de- sertion on the part of the husband from the time her reasonable objections are made known to him. § 105. Willful neglect is the neglect of the hus- band to provide for his wife the common neces- saries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation. See sec. 169, infra. § 106. Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party. Duration of intemperance: See next section. § 107. Willful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for divorce. §§ 111-113 MARRIAGE. 34 ARTICLE III. CAUSES FOR DENYING DIVORCE. § 111, Divorces denied, on showing what. § 112. Connivance, what. § 113. Corrupt consent, how manifested. § 114. Collusion, what. § 115. Condonation, what. § 116. Requisites to condonation. § 117. Condonation implies what. § 118. Evidence of condonation. § 119. Condonation, when operates to bar divorce. § 120. Concealment of facts in certain cases makes con- donation void. § 121. Condonation, how revoked. § 122. Recrimination, what. § 123. Condonation in a recriminatory defense a bar to such defense, when. § 124. Divorces denied, when. §125. Lapse of time establishes certain presumptions. § 126. Presumptions may be rebutted. § 127. Limitation of time. § 128. Divorces granted, when. § 129. Proof of actual residence required. Presumptions do not apply. § 130. Divorce not to be granted by default, &c. § 111. Divorces must be denied upon showing: 1. Connivance; or, 2. Collusion; or, 3. Condonation; or, 4. Recrimination; or, 5. Limitation and lapse of time. § 112. Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. § 113. Corrupt consent is manifested by pas- sive permission, with intent to connive at or ac- tively procure the commission of the acts com- plained of. 35 MARRIAGE. §§ 114-U9 § 114. Collusion is an agreement betTveen hus- band and wife that one of them shall commit, or appear to have committed, or to be represented in court as having conmiitted, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. § 115. Condonation is the conditional forgive- ness of a matrimonial offense constituting a cause of divorce. Revoking condonation: Sec, 121, infra. Condonation of recriminatory defense: Sec. 123, post. § 116. The following requirements are neces- sary to condonation: 1. A knowledge on the part of the condoner of the facts constituting the cause of divorce; 2. Reconciliation and remission of the offense by the injured party; 3. Restoration of the offending party to all marital rights. § 117. Condonation implies a condition subse- quent; that the forgiving party must be treated with conjugal kindness. § 118. Where the cause of divorce consists of a course of offensive conduct, or arises, in cases of cruelty, from successive acts of ill-treatment, which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts constituting such cause, unless ac- companied by an express agreement to condone. [Amendment approved March 30, 1874; Amend- ments 1873-4, 190. In effect July 1, 1874.] § 119. In cases mentioned in the last section, condonation can be made only after the cause of divorce has become complete, as to the acts com- §§ 120-124 MARRIAGE. 36 plained of. [Ameudment approved March 30, 1874; Amendments 1873-4, 190. In effect July 1, 1874.] § 120. A fraudulent concealment by the con- donee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condona- tion. § 121. Condonation is revoked, and the origi- nal cause of divorce revived: 1. When the condonee commits acts constitut- ing a like or other cause of divorce; or, 2. When the condonee is guilty of great con- jugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith, or not fulfilled. § 122. Recrimination is a showing by the de- fendant of any cause of divorce against the plain- tiff, in bar of the plaintiff's cause of divorce. § 123. Condonation of a cause of divorce, shown in the answer as a recriminatory defense, is a bar to such defense, unless the condonation be revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the condonation, and before the accruing or com- pletion of the cause of divorce against which the recrimination is shown. [Amendment approved March 30, 1874; Amendments 1873-4, 190. In ef- fect July 1, 1874.] § 124. A divorce must be denied: 1. When the cause is adultery, and the action is not commenced within two years after the com- mission of the act of adultery, or after its discov- ery by the injured party; or, 2. When the cause is conviction of felony, and 37 MARRIAGE. §§ 125-130 the action is not commenced before the expiration of two years after a pardon, or the termination of the period of sentence; 3. In all other cases when there is an unreason- able lapse of time before the commencement of the action. [Amendment approved March 30, 1874; Amendments 1873-4, 191. In effect July 1, 1874.] § 125. Unreasonable lapse of time is such a de- lay in commencing the action as establishes tlie presumption that there has been connivance, col- lusion, or condonation of the offense, or full ac- quiescence in the same, with intent to continue the marriage relation, notwithstanding the com- mission of such oft'ense. § 126. The presumptions arising from lapse of time may be rebutted by showing reasonable grounds for the delay in commencing the action. § 127. There are no limitations of time for commencing actions for divorce, except such as are contained in section 124. § 128. A divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the com- mencement of the action. [Amendment approved March 10, 1891; Stats. 1891, p. 52.] § 129. In actions for divorce the presumption of law, that the domicile of the husband is the domicile of the wife, does not apply. After sepa- ration, each may have a separate domicile, de- pending for proof upon actual residence, and not upon legal presumptions. § 130. No divorce can be granted upon the de- fault of the defendant, or upon the uncorroborat- Civ. Code— 4. §§ 136, 137 MARRIAGE. 38 ed statement, admission, or testimony of the par- ties, or upon any statement or finding of fact made by a referee; but the court must, in addi- tion to any statement or finding of tlie referee, re- quire proof of tlie facts alleged, and such proof, if not taken before the court, must be upon written questions and ansAvers. [Amendment approved March 30, 1874; Amendments 1873-4, 191. In ef- fect July 1, 1874.] ARTICLE IV. GENERAL PROVISIONS. § 136. Relief may be adjudged, where separation is denied. § 137. Expense of action, alimony. § 138. Orders respecting custody of children. § 139. Support of wife and children on divorce or separa- tion granted to wife. § 140. Security for maintenance and alimony. § 141. Court shall resort to what, in executing certain sec- tions. § 142. If wife has suflBcient support, court may withhold allowance. § 143. Community and separate property may be subjected to support and educate children. § 144. Legitimacy of issue. § 145. Same. § 146. Disposition of community property on divorce. § 147. How disposed of when divorce rendered on adultery. § 148. Such an action subject to revision on appeal. § 136. Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of them by the husband. Alimony generally: See next section. § 137. While an action for divorce is pending the court may, in its discretion, require the hus- band to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. When the husband willfully deserts the wife, she may, with- 39 MARRIAGE. §§ 138, 139 out applying for a divorce, maintain in the Supe- rior Court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, require the hus- band to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, and executions may issue therefor in the discretion of the court. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such or- der or orders may be varied, altered, or revoked at the discretion of the court. [Amendment ap- proved April 6, 1880; Amendments 1880, 4. In ef- fect immediately.] See sec. 139, infra. § 138, In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. Exclusive control of child without divorce: Sees. 199, 214. Avrarding custody of child, considerations that should guide the court: See post, sec. 246. § 139. Where a divorce is granted for an of- fense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allow- ance to the wife for her support, during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects. Compare with sec. 148. §§ 140-146 MARRIAGE. 40 § 140. The court may require the husband to give reasonable security for providing mainte- nance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case. § 141. In executing the five preceding sections- the court must resort: 1. To the community property; then, 2. To the separate property of the husband. § 142. When the wife has either a separate es- tate, or there is community property sufficient to give her alimony or a proper support, the court, in its discretion, may withhold any allowance to her out of the separate property of the husband. § 143. The community property and the sepa- rate property may be subjected to the support and education of the children in such proportions as the court deems just. § 144. When a divorce is granted for the adul- tery of the husband, the legitimacy of children of the marriage begotten of the wife before the com- mencement of the action is not affected. Legitimacy of children: See generally, sec. 193, post. See, also, the next section. § 145. When a divorce is granted for the adul- tery of the wife, the legitimacy of children begot- ten of her before the commission of the adultery is not affected; but the legitimacy of other chil- dren of the wife may be determined by the court, upon the evidence in the case. § 146. In case of the dissolution of the mar- riage by the decree of a court of competent juris- 41 MARRIAGE. §§ 147, 148 diction, the community property and the home- stead shall be assij?ned as follows: 1. If the decree be rendered on the ground of adultery or extreme cruelty, the community prop- erty shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties may deem just. 2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties. 3. If a homestead has been selected from the community property, it may be assigned to the innocent party, either absolutely, or for a limited period, subject, in the latter case, to the future disposition of the court, or it may, in the discre- tion of the court, be divided, or be sold and the proceeds divided. 4. If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party. [Amendment approved March 30, 1874; Amendments 1873-4, 191. In ef- fect July 1, 1874.] Discretion of court: See sec. 148. § 147. The court, in rendering a decree of di- vorce, must make such order for the disposition of the community property, and of the homestead, as in this chapter provided, and w^henever necessary for that purpose, may order a partition or sale of the properly and a division or other disposition of the proceeds. [Amendment approved March 30, 1874; Amendments 1873-4, 192. In effect July 1, 1874.] § 148. The disposition of the community prop- erty, and of the homestead, as above provided, is § 155 MARRIAGE. 42 subject to revision on appeal in all particulars, in- cluding those wliicli are stated to be in the discre- tion of the court. [Amendment approved March 30, 1874; Amendments 1878-4, 192. In effect July 1, 1874.] CHAPTER Hi. HUSBAND AND WIFE. § 155. Mutual obligations of husband and wife. § 153. Rights of husband, as head of family. § 157. In other respects their interest separate. § 158. Husband and wife may make contracts. § 159. How far may impair their legal obligations. § 160. Consideration for agreement of separation. § 161. May be joint tenants, &c. § 162. Separate property of the wife. § 163. Separate property of the husband. § 164. Community property. § 165. Inventory of separate property of wife. § 166. Filing inventory notice of wife's title. § 167. Wife not competent to contract for payment of money. § 168. Earnings of wife not liable for debts of husband. § 169. Earnings of wife when living separate, separate property. § 170. Liability for debts of wife contracted before mar- riage. § 171. Wife's property not liable for debts of the husband, but liable for her own debts. § 172. Power of the husband over community property. § 173. Courtesy and dower not allowed. § 174. Support of wife. § 175. Husband not liable when abandoned by wife. § 176. When wife must support husband. § 177. Rights of husband and wife governed by what. § 178. Marriage settlement contracts, how executed. § 179. To be acknowledged and recorded. § 180. Effect of recording. § 181. Minors may make marriage settlements. § 155. Husband and wife contract toward each other obligations of mutual respect, fidelity, and support. Mother aiding in support of children: Sec. 196, post. Wife's support of husband: See infra, sec. 176. 43 MARRIAGE. §§ 156-160 Husband's support of wife: See infra, sees. 174, 175, and ante, sec. 105, >Yhere the failure so to do gives ground for divorce. § 156. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. Head of family for homestead purposes: See post, sec. 1261. Parent changing residence of child: Sec. 213, post. Husband's selection of dwelling-place, desertion if wife does not conform thereto: Sec. 103. § 157. Xeither husband nor wife has any inter- est in the property of the other, but neither can be excluded from the other's dwelling. § 158. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confiden- tial relations with each other, as defined by the title on Trusts. Contracts for payment of money: See sec. 167. § 159. A husband and wife cannot, by any con- tract with each other, alter their legal relations, except as to property, and except that they may agree, in writing, to an immediate separation, and may mal^e provision for the support of either of them and of their children during such separa- tion. [Amendment approved March 30, 1874; Amendments 1873-4, 193. In effect July 1, 1874.] Marriage settlements: Sees. 177-181, post. § 160. The mutual consent of the parties is a §§ 161-164 MARRIAGE. 44 sufficient consideration for such an agreement as is mentioned in the last section. § 161. A husband and wife may hold property as joint tenants, tenants in common, or as com- munity property. § 162. All property of the wife, owned by her before marriage, and that acquired afterward by gift, bequest, devise, or descent, with the rents, is- sues, and profits thereof, is her separate property. The wife may, without the consent of her hus- band, convey her separate property. § 163. All property owned by the husband be- fore marriage, and that acquired afterward by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate prop- erty. Community property: See the definition, sec. 687. Community property liable for what debts: Sec. 167. Husband's control over community property: Sec. 172. Descent of community property: Sees. 1401, 3402, post. § 164. All other property acquired after mar- riage by either husband or wife, or both, is com- munity property; but whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance be to such married woman and to her husband, or to her and any other person, the presumption is that the mar- ried woman takes the part conveyed to her, as tenant in common, unless a different intention is expressed in the instrument, and the presumption 45 MARRIAGE. §§ 165-167 in this section mentioned is conclusive in favor of a purchaser or incumbrancer in good faith and for a valuable consideration. And in cases where married women have conveyed or shall hereafter convey, real property which they acquired prior to May nineteenth, eighteen hundred and eighty- nine, the husbands, or their heirs or assigns, of such married women, shall be barred from com- mencing or maintaining any action to show that said real property was community property, or to recover said real property, as follows: As to conveyances heretofore made from and after one year from the date of the taking effect of this Act; and as to conveyances hereafter made from and after one year from the filing for record in the Recorder's office of such conveyances respec- tively. [Approved March 4, 1897, c. 72.] This section vras also amended in 1893, Stats. 1893, p. 71. § 165. A full and complete inventory of the separate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the ac- knowledgment or proof of a grant of real prop- erty by an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside. § 166. The filing of the inventory in the re- corder's office is notice and prima facie evidence of the title of the wife. [Amendment approved March 30, 1874; Amendments 1873-4, 193. In ef- fect July 1, 1874.] § 167. The property of the community is not liable for the contracts of the wife, made after marriage, unless secured by a pledge or mortgage thereof executed by the husband. [Amendment §§ 168-172 MARRIAGE. 46 api)roved March 30, 1874; Amendments 1873-4, 193. In effect July 1, 1874.] Debts of wife: See sees. 170, 171, 174. Community property is liable for husband's debts: Sec. 172. Necessaries furnished wife: See sec, 174. § 168. The earnings of the wife are not liable for the debts of the husband. § 169. The earnings and accumulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, are the separate property of the wife. Sole traders.— As to married women becoming sole traders, and their rights and liabilities as such, see Code Civ. Proc, sees, 1811-1821, in- elusive. § 170. The separate property of the husband is not liable for the debts of the wife contracted be- fore the marriage. § 171. The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after marriage. § 172. The husband has the management and control of the community property, with the lil^e absolute power of disposition, other than testa- mentary, as he has of his separate estate; pro- vided, however, that he cannot mal^e a gift of such community property, or convey the same without a valuable consideration, unless the wife, in writing, consent thereto. [Amendment approv- ed March 31, 1891; Stats. 1891, p. 425.] Testamentary control over community property: See sees. 1401 and 1402, post, which prescribe the 47 MARRIAGE. §§ 173-176 ooiirse of descent of common property, and limit the power of testamentary disposition over the same. Community property generally: See supra, sec. 164. Dissolution of the community by divorce: See sees. 147, 148. § 173. Xo estate is allowed the husband as ten- ant by courtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. § 174. If the husband neglect to make ade- quate provision for the support of his wife, except in the cases mentioned in the next section, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. [Amendment approved March 30, 1874; Amend- ments 187.3-4, 193. In effect July 1, 1874.] § 175. A husband abandoned by his wife is not liable for her support until she offers to re- turn, unless she was justified, by his misconduct, in abandoning him; nor is he liable for her sup- port when she is living separate from him, by agreement, unless such support is stipulated in the agreement. [Amendment approved March 30, 1874; Amendments 1873-4, 193. In effect July 1, 1874.] § 176. The wife must support the husband, when he has not deserted her, out of her separate property, when he has no separate property, and there is no community property, and he is unable, from infirmity, to support himself. [Amendment approved March 30. 1874; Amendments 1873-4. 194. In effect July 1, 1874.] §§ 177-181 MARRIAGE. 48 Mutual obligations of support: See sec. 155. § 177. The property rights of husband and wife are governed by this chapter, unless there is a marriage settlement containing stipulations con- trary thereto. § 178. All contracts for marriage settlements must be in writing, and executed and aclcnowl- edged or proved in like manner as a grant of land is required to be executed and aclinowledged or proved. § 179. When such contract is acknowledged or proved, it must be recorded in the office of the re- corder of every county in which any real estate may be situated which is granted or affected by such contract. § 180. The recording or nonrecording of such contract has a like effect as the recording or non- recording of a grant of real property. § 181. A minor capable of contracting mar- riage may make a valid marriage settlement. 49 PARENT AND CHILD. § 193 TITLE II. PARENT AND CHILD. CHAPTER I. CHILDREN BY BIRTH. § 193. Legitimacy of children born in wedlock. § 194. Legitimacy of children born out of wedlock. § 195. Who may dispute the legitimacy of a child. § 196. Obligation of parents for the support and education of their children. § 197. Custody of legitimate child. § 198. Husband and wife living separate, neither to have superior right to custody of children. S 199. When husband or wife may bring action for the ex- clusive control of children. Decree in such cases. § 200. Custody of an illegitimate child. § 201. Allowance to parent. S 202. Parent cannot control the property of child. § 203. Remedy for parental abuse. § 2U4. When parental authority ceases. § 205. Remedy when a parent dies without providing for the support of his child. § 206. Reciprocal duties of parents and children in main- taining each other. § 207. When a parent is liable for necessaries supplied to a child. § 208. When a parent is not liable for support furnished his child. § 209. Husband not bound for the support of his wife's children by a former marriage. § 210. Compensation and support of adult child. § 211. Parent may relinquish services and custody of child. § 212. Wages of minors. § 213. Right of parent to determine the residence of child. § 214. \V iie in certain cases may obtain custody of minor children. § 215. Child legitimized by marriage of parents. § 193. All children born in wedlock are pre- sumed to be legitimate. Civ. Code— 5. §§ 194-196 PARENT AND CHILD. 50 Legitimacy of cliildren of nullified marriage: See ante, sec. 84. Legitimacy in cases of adultery: See ante, sees. 144, 145. Rebutting presumption of legitimacy: Sec. 195, infra. Legitimating children by marriage of parents: See sec. 215, post. Father legitimating child by acknowledging it: Sec. 2.30; and compare sec. 1387, post. Illegitimate's earnings: See sec. 200. Illegitimates, heirs to whom: Sec. 1387, post. Mother succeeds to estate of illegitimate: Sec. 1388, post. § 194. All children of a woman who has been married, born within ten months after the disso- lution of the marriage, are presumed to be legiti- mate children of that marriage. [Amendment ap- proved March 30, 1874; Amendments 1873-4, 194. In effect July 1, 1874.] § 195. The presumption of legitimacy can be disputed only by the husband or wife, or the de- scendant of one or both of them. Illegitimacy, in such case, may be proved lilie any other fact. § 196. The parent entitled to the custody of a child must give him support and education suita- ble to his cij'cumstances. If the support and edu- cation which the father of a legitimate child is able to give are inadequate, the mother must as- sist him to the extent of her ability. Action to enforce parental duty: Sec. 203, infra. Third person supplying necessaries: Sees. 207, 208, infra. Willful failure to support child is a misde- meanor: Pen. Code, sec. 270. 51 PARENT AND CHILD. §§ 197-199 Deserting cliild is a felony: Pen. Code, sec. 271. Supporting poor relatives: See sec. 206, infra. Illegitimate child. — The mother is entitled to the custody of an illegitimate unmarried minor: Sec. 200. Injury to child, action for: See Code Civ. Proc, sec. 376. § 197. The father of a legitimate unmarried minor child is entitled to its custody, services, and earnings; but he cannot transfer such custody or services to any other person, except the mother, without her vrritten consent, unless she has de- serted him, or is living separate from him by agreement. If the father be dead, or be unable, or refuse to tal^e the custody, or has abandoned his family, the mother is entitled thereto. [Amendment approved March 30, 1874; Amend- ments 1873-4, 194. In effect July 1, 1874.] Relinquishing right to child's earnings: Sec. 211, infra. Property of child, parent, as such, has no con- trol of: Sec. 202, infra. Guardian, appointment of: See post, sees. 241 et seq. § 198. The husband and father, as such, has no rights superior to those of the wife and mother, in regard to the care, custody, education, and con- trol of the children of the marriage, while such husband and wife live separate and apart from each other. Custody of child in divorce causes: See ante, sec. 138. § 199. Without application for a divorce, the husband or the wife may bring an action for the exclusive control of the children of the marriage; and the court may, during the pendency of such action, or at the final hearing thereof, or after- §§ 200-203 PARENT AND CHILD. 52 ward, make such order or decree in regard to the support, care, custody, education, and control of the children of the marriage, as may be just, and in accordance with the natural rights of the par- ents and the best interests of the children, and may at any time thereafter amend, vary, or mod- ify such order or decree, as the natural rights and the interests of the parties, including the children, may require. Compare with sec. 214, infra. Control of children pending divorce proceedings: See ante, sec. 138. Awarding custody of child.— Considerations that should govern the court: Sec. 246, post. § 200. The mother of an illegitimate unmar- ried minor is entitled to its custody, services, and earnings. Mother the heir of illegitimate child: Sec. 1888, post. Duty to support child: Sec. 190. § 201. The proper court may direct an allow- ance to be made to the parent of a child, out of its property, for its past or future support and educa- tion, on such conditions as may be proper, when- ever such direction is for its benefit. § 202. The parent, as such, has no control over the property of the child. Same principle: Sec. 242, post. Guardian of minors estate: See sees. 241, post, et seq. § 203. The abuse of parental authority is the subject of judicial cognizance in a civil action brought by the child, or by its relative within the third degree, or by the supervisors of the county where the child resides; and when the abuse is established, the child may be freed from the do- 53 PARENT AND CHILD. §§ 204-207 minion of the parent, and tlie duty of support and education enforced. Parental duty: See sec. 196, ante. Omission to supply a child with necessaries is a misdemeanor, and desertion is punished by im- prisonment: Pen. Code, sees. 270, 271. § 204. The authority of a parent ceases: 1. Upon the appointment, by a court, of a guardian of the person of a child; 2. Upon the marriage of the child; or, 3. Upon its attaining majority. § 205. If a parent chargeable with the support of a child dies, leaving it chargeable to the coun- ty, and leaving an estate sufficient for its sup- port, the supervisors of the county may claim pro- vision for its support from the parent's estate by civil action, and for this purpose may have the same remedies as any creditors against that es- tate, and against the heirs, devisees, and next of l^in of the parent. § 206. It is the duty of the father, the mother, and the children of any poor person who is un- able to maintain himself by worli, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding. Mother supporting children: Sec. 197. Wife supporting husband: Sec. 176. § 207. If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent. Infant liable on contract for necessaries: See sec. 36, ante. §§ 208-213 PARENT AND CHILD. 54 § 208. A parent is not bound to compensate the other parent, or a rehitive, for the voluntary support of his child, without an agreement for compensation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause. § 209. A husband is not bound to maintain his wife's children by a former husband; but if he re- ceives them into his family and supports them, it is presumed that he does so as a parent; and, where such is the case, they are not liable to him for their support, nor he to them for their ser- vices. § 210. AYhere a child, after attaining majority, continues to serve and to be stipported by the par- ent, neither party is entitled to compensation, in the absence of an agreement therefor. § 211. The parent, whether solvent or insol- vent, may relinquish to the child the right of con- trolling him and receiving his earnings. Aban- donment by the parent is presumptive evidence of such relinquishment. § 212. The wages of a minor employed in ser- vice may be paid to him until the parent or guardian entitled thereto gives the employer no- tice that he claims such wages. [Amendment approved March 30, 1874; Amendments 1873-4, 194. In etfect July 1, 1874.] § 213. A parent entitled to the custody of a child has a right to change his residence, subject to the power of the proper court to restrain a re- moval which would prejudice the rights or wel- fare of the child. Residence, husband's right to change: See ante, sec. 15G. 55 PARENT AND CHILD. §§ 214-222 § 214. When a liiisbaud and ^yife live in a state of separation, witliout being divorced, any court of competent jurisdiction, upon application of eitlier, if an inhabitant of this State, may in- quire into the custody of any unmarried minor cliild of the marriage, and may award the cus- tody of such child to either, for such time and un- der such regulations as the case may require. The decision of the court must be guided by the rules prescribed in section 246. See Act of March 7, 1874, relative to orphans and abandoned children, Stats 1873-4, p. 297. Custody of child without divorce of parents: See ante, sec. 199. Custody of child pending divorce proceedings: See sec. 138. § 215. A child born before wedlock becomes le- gitimate by the subsequent marriage of its par- ents. [New section approved March 30, 1874; Amendments 1873-4, 195. In effect July 1, 1874.] CHAPTER II. ADOPTION. § 221. Child may be adopted. § 222. Who may adopt. § 223. Consent of wife necessary. § 224. Consent of child's parents. § 225. Consent of child. § 226. Proceedings on adoption. § 227. Judge's order. § 228. Effect of adoption. § 229. Effect of former relations of child. § 230. Adoption of illegitimate child. § 221. Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter. § 222. The person adopting a child must be at least ten years older than the person adopted. §§ 223, 224 PARENT AND CHILD. 56 [Amendmeut approved March 30, 1874; Amend- ments 1873-4, 195. In effect July 1, 1874.] § 223. A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife; nor can a married woman, not thus separated from her husband, without his consent, provided the husband or wife, not con- senting, is capable of gi"^ing- such consent. [Amendment approved March 30, 1874; Amend- ments 1873-4, 195. In effect July 1, 1874.] § 224. A legitimate child caunot be adopted without the consent of its parents, if living; nor an illegitimate child without the consent of its mother, if living; except the consent is not neces- sary from a father or mother deprived of civil rights, or adjudged guilty of adultery or of cruel- ty, and for either cause divorced, or adjtidged to be an habitual drunkard, or who has been judi- cially deprived of the custody of the child on ac- count of cruelty or neglect; neither is the consent of any one necessary in case of any abandoned child; provided, however, that where any such child, being a half -orphan, and kept and main- tained within any orphan asylum in this State for more than two years, may be adopted with the consent of the managers of such orphans' home without the consent of tlie parent, unless such parent has paid toward the expenses of mainte- nance of such half- orphan at least a reasonable sum during the said time, if able so to do; and where the parent is a nonresident of this State, such child may be adopted with the consent of the managers of such home, whenever it has been left by its parent in such home for more than one year, whether the parent has contributed any- thing to its support or not, and the consent of the parent of such half -orphan is not necessary to its 57 PARENT AND CHILD. §§ 225-228 adoption, wlieuever the managers of the home are authorized to give such consent, as herein pro- vided. [Amendment approved March 9, 1895; Stats. 1895, p. 36. In effect immediately.] § 225. The consent of a child, if over the age of twelve years, is necessary to its adoption. § 226. The person adopting a child, and the child adopted, and the other persons, if within or residents of this State, whose consent is neces- sary, must appear before the judge of the Supe- rior Court of the county where the person adopt- ing resides, and the necessary consent must there- upon be signed and an agreement be executed by the person adopting, to the effect that the child shall be adopted and treated in all respects as his own lawful child should be treated. If the per- sons whose consent is necessary are not within or are not residents of this State, then their writ- ten consent, duly proved or aelvuowledged, accord- ing to sections eleven hundred and eighty-two and eleven hundred and eighty-three of this Code, shall be filed in said Superior Court at the time of the application for adoption. [Amendment ap- proved April 6, 1880; Amendments 1880, 4. In ef- fect immediately.] § 227. The judge must examine all persons ap- pearing before him pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. § 228. A child, when adopted, may take the family name of the person adopting. After adop- tion, the two shall sustain toward each other the legal relation of parent and child, and have all the §§ 229, 230 GUARDIAN AND WARD. 58 rights and be subject to all the duties of that re- lation. [Amendment approved March 30, 1874; Amendments 1873-4, 195. In effect July 1, 1874.] § 229. The parents of an adopted child are, from tlie time of tlie adoption, relieved of all par- ental duties toward, and all responsibility for, the child so adopted, and have no right over it. § 230. The father of an illegitimate child, by publicly aclinowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as sucli; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not applj^ to such an adoption. TITLE III. GUARDIAN AND WARD. § 236. Guardian, what. § 237. Ward, what. § 238. Kind? of guardians. § 239. General guardian, what. § 240. Special guardian, what. § 241. Appointment by parent. § 242. No person guardian of estate without appointment. § 243, Appointment by court. § 244. Same. § 245. Jurisdiction. * § 246. Rules for awarding custody of minor. § 247. Powers of guardian appointed by court. § 248. Duties of guardian of the person. § 249. Duties of guardian of estate. § 250. Relation confidential. § 251. Guardian under direction of court. § 252. Death of a joint guardian. § 253. Removal of guardian. § 254. Guardian appointed by parent, how superseded. § 255. Guardian appointed by court, how superseded. § 256. Released by ward. § 257. Guardian's discharge. § 258. Insane persons. 59 GUARDIAN AND WARD. §§ 236-242 § 236. A guardiau is a person appointed to take care of the person or property of another. § 237. The person over whom or over whose property a guardian is appointed, is called his ward. ij 238. Guardians are either: 1. General; or, 2. Special. Testamentary guardians: See sec. 241. Guardians ad litem: See Code Civ. Proc, sees. 372, 373. § 239. A general guardiau is a guardian of the person or of all the property of the ward within this State, or of both. § 240. Every other is a special guardian. § 241. A guardian of the person or estate, or of both, of a child born, or liliely to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing: 1. If the child be legitimate, by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of con- sent; 2. If the child be illegitimate, by the mother. [Amendment approved March 30, 1874; Amend- ments 1873-4, 195. In effect July 1, 1874.] Code Civ. Proc, sec. 1747. Bond of testamentary guardian: Code Civ. Proc, sec. 1758. § 242. Xo person, whether a parent or other, wise, has any poAver as guardian of property, ex- cept by appointment as herein after provided. Same principle as expressed in sec 202, ante. And as to power of guardian appointed by the court, see sec 247, infra. §§ 243-243 GUARDIAN AND WARD. 60 § 243. A guardian of the person or property, or both, of a person residing in this State, who is a minor, or of unsound mind, may be appointed in all cases, other than those named in section two hundred and forty-one, by the Superior Court, as provided in the Code of Civil Procedure. [Amend- ment approved April 6, 1880; Amendments 1880, 4. In effect immediately.] Judicial appointment of guardian of minor: See Code Civ. Proc, sec. 1747. Judicial appointment of guardian of insane or incompetent persons: See Code Civ. Proc, sec. 1763. Act providiing for appointment of guardian of orphans: See post. Appendix, p. TiG. § 244. A guardian of the property within this State of a person not residing therein, who is a minor, or of unsound mind, may be appointed by the Superior Court. [Amendment approved April 6, 1880; Amendments 1880, 4. In effect immedi- ately.] Nonresident wards, appointment of guardian: See Code Civ. Proc, sees. 1793 et seq. § 245. In all cases the court making the ap- pointment of a guardian has exclusive jurisdiction to control him. Code Civ. Proc, sec 1771. § 246. In awarding the custody of a minor, or in appointing a general guardian, the court or of- ficer is to be guided by the following consider- ations: 1. By what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare, and if the child be of a sufficient age to form an intelligent preference, the court may consider that preference in deter- mining the question. 61 GUARDIAN AND WARD. §§ 247-249 2, As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right; but other things being equal, if the child be of tender years, it should be given to the mother; if it be of an age to require education and preparation for labor or business, then to the father. 3. Of two persons equally entitled to the cus- tody in other respects, preference is to be given as follows: 1. To a parent; 2. To one who was indicated by the wishes of a deceased parent; 3. To one who already stands in the position of a trustee of a fund to be applied to the child's support; 4. To a relative. [Amendment approved March 30, 1874; Amendments 1873-4, 196. In effect July 1, 1874.] Custody of children generally, pending divorce: See sec. 138; without divorce, see sees. 199, 214. Custody of child where parents separated: See ante, sec. 214. § 247. A guardian appointed by a court has power over the person and property of the ward, unless otherwise ordered. Property of ward, control over: See sec. 242. § 248. A guardian of the person is charged with the custody of the ward, and must look to his support, health, and education. He may fix the residence of the ward at any place within the State, but not elsewhere, without permission of the court. Compare sec. 251. § 249. A guardian of the property must keep safely the property of his ward. He must not per- Civ. Code— 6 §§ 250-253 GUARDIAN AND WARD. 62 mit any unnecessary waste or destruction of the real property, nor make any sale of such property without the order of the Superior Court, but must, so far as it is in his poAver, maintain the same, with its buildings and appurtenances, out of the income or other property of the estate, and deliver it to the ward, at the close of his guardianship, in as good condition as he received it. [Amendment approved April 6, 1880; Amendments 1880, 5. In effect immediately.] Sale of ward's estate: See Code Civ. Proc, sees. 1777 et seq. Guardian using principal as well as income: See Code Civ. Proc, sec. 1770. § 250. The relation of guardian and ward is confidential, and is subject to the provisions of the title on Trust. Trusts: See post, sees. 2215 et seq. § 251. In the management and disposition of the person or property committed -to him, a guard- ian may be regulated and controlled by the court. Residence of ward: See sec. 248, ante. § 252. On the death of one of two or more .ioint guardians, the power continues to the sur- vivor until a further appointment is made by the court. Survival of trust: See sec. 2288, post. § 253. A guardian may be removed by the Su- perior Court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform its duties; 3. For incapacity to perform its duties; 4. For gross immorality; 5. For having an interest adverse to the faith- ful performance of his duties; C. For removal from the State; 63 GUARDIAN AND WARD. §§ 254-258 7. In the case of a guardian of the property, for insolvency; or, S. When it is no longer proper that the ward should be under guardianship. [Amendment ap- proved April 6, 1880; Amendments 1880, 5. In ef- fect immediately.] § 254. The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by section 253; 2. By the solemnized marriage of the ward; or, 3. By the ward's attaining majority. Marriage of ward terminates guardianship: Code Civ. Proc, sec. 1802. § 255. The power of a guardian appointed by a court is suspended only: 1. By order of the court; or, 2. If the appointment was made solely because of the ward's minority, by his attaining majority; or, 3. The guardianship over the person of the ward, by the marriage of the ward. [Amendment approved March 30, 1874; Amendments 1873-4, 197. In effect July 1, 1874.] Marriage of ward terminates guardianship: Code Civ. Proc, sec. 1802. § 256. After a ward has come to his major- ity, he may settle accounts with his guardian, and give him a release, which is valid if obtained fair- ly and without undue influence. § 257. A guardian appointed by a court is not entitled to his discharge until one year after the ward's majority. Pvesignation of guardian: See Code Civ. Proc, sec. 1801. § 258. A person of unsound mind may be plac- ed in an asylum for such persons, upon the order § 264 MASTER AND SERVANT, 64 of the Superior Court of the county in which he resides, as follows: 1. The court must be satisfied, upon examina- tion in open court and in the presence of such per- son, from the testimony of two reputable physi- cians, that such person is of unsound mind, and unfit to be at large; 2. After the order is granted, the person alleg- ed to be of unsound mind, his or her husband or wife, or relative to the third degree, or any citi- zen, may demand an investigation before a jury, which must be conducted in all respects as under an inquisition of lunacy. As to appointment, rights, and powers of guard- ian, see Code Civ. Proc, sees. 1747-1809. Guardianship of lunatic: See Code Civ. Proc, sec. 1763. TITLE IV. MASTER AND SERVANT. § 234. Minors may apprentice themselves. § 265. Consent of parents, &c., requisite. § 266. Written consent. § 267. Executors may bind. § 268. Supervisors may bind out. § 269. Town officers. § 270. Age of apprentice to be inserted in indentures. § 271. Indentures, conditions in. § 272. Same. § 273. Deposit of indentures. § 274. Alien minors. § 275. Contract under preceding section to be acknowl- edged. § 276. Causes for annulling indentures. Employer and employee: See, generally, sees. 1865 et seq. § 264. Every minor, with the consent of the persons or officers hereinafter mentioned, may, of his own free will, bind himself, in writing, to serve as clerk, apprentice, or servant, in any pro- fession, trade, or employment, during his minor- 65 MASTER AND SERVANT. §§ 265-267 ity, and such binding shall be as valid and effec- tual as if such minor was of full age at the time of making the engagement. Aiding apprentice to run away a misdemeanor: Pen. Code, sec. G46. See Act of April 3, 1876, relative to apprentices: See post, Appendix, pp. 708 et seq. Master and servant generally: See post, sec. 2009. § 265. Such consent shall be given: 1. By the father of the minor. If he be dead, or be not of legal capacity to give his consent, or if he shall have abandoned or neglected to pro- vide for his family, and such fact be certified by a justice of the peace of the township or county, or sworn to by a credible witness, and such cer- tificate or affidavit be indorsed on the indenture, then: 2. By the mother. If the mother be dead, or be not of legal capacity to give such consent or re- fusal, then: 3. By the guardian of such infant. If such in- fant have no parent living, or none in a legal ca- pacity to give consent, and there be no guardian, then: 4. By the supervisors of the county, or any two justices of the peace, or the judge of the Superior Coui-t of the countj-; 5. If such minor be an orphan, under the care and control of any orphan asylum in this State, then by the board of managers thereof. [Amend- ment approved April G, 1880; Amendments 1880, 5. In effect immediately.] § 266. Such consent shall be signified in writ- ing by the person entitled to give the same, by certificate at the end of, or indorsed upon the in- dentures. § 267. The executors of any last will of a par- §§ 268-272 MASTER AND SERVANT. 66 ent wlio shall be directed iu such will to bring up his or her child to some trade or calling, may bind such child to service as a clerk, or apprentice, in like manner as the father might have done if living. If there is a surviving mother, her con- sent also is necessary. § 268. The supervisors of the county may bind out minors who are or shall become chargeable to such county, to be clerks, apprentices, or ser- vants, which binding shall be as effectual as if such minors had bound themselves with the con- sent of their father. § 269. In every town or city, the presiding of- ficer of the first council or legislative board there- of, if there be more than one, or any public offi- cer or officers appointed to provide for the poor, may in like manner bind out any child who, or whose parents are, chargeable to any such town or city. § 270. The age of every infant so bound shall be inserted in the indentures, and shall be taken to be the true age; and whenever public officers are authorized to execute any indentures, or their consent is required to the validity of the same, it shall be their duty to inform themselves fully of the infant's age. § 271. Every sum of money paid or agreed for, with or in relation to the binding out of any clerk, apprentice, or servant shall be inserted in the in- dentures. § 272. The indenture shall also contain an agreement, on the part of the person to whom stich child shall be bound, that he will cause such child to be instructed to read and write, and to be taught the general rules of arithmetic, or, in lieu thereof, that he will send such child to school 67 MASTER AND SERVANT. §§ 273-276 three mouths of eacli jenv of the period of in- denture. § 273. The counterpart of any indenture exe- cuted by any county, or city, or town officers, must be by them deposited in the othce of the county clerli. [In effect April 5, 1880.] § 274. Any minor, capable of becoming a citi- zen of this State, coming from any other coun- try. State, or Territory, may bind himself to ser- vice until his majority, or for anj' shorter term. Such contract, if made for the purpose of raising money to pay his passage, or for the payment of such passage, may be for the term of one year, although such term may extend beyond the time when such ijerson will be of full age, but it shall in no, case be for a longer term. § 275. No contract made under the preceding section shall bind the servant, unless duly ac- l^nowledged by the minor, before some public mag- istrate or other officer authorized to administer oaths, nor tmless a certificate, showing that the same was made freely, on private examination, be indorsed upon the contract. § 276. Such indentures of apprenticeship may be annulled for: 1. Fraud in the contract of indenture; 2. When such contract is not made or executed in accordance with the provisions of this title; .3. For willful nonfulfillment, by such master, of the provisions of such iudeuttire; 4. Cruelty or maltreatment of such apprentice by the master. In such case, the apprentice may recover for his services. PAET IV. CORPORATIONS. Title I. General Provisions as to all Corpora- tions, §§ 283-403. II. Insurance Corporations, §§ 414-448. III. Railroad Corporations, §§ 454-491. IV. Street Railroad Corporations, §§ 497-511. V. Wagon Road Corporations, §§ 512-523. YI. Bridge, Ferry, Wharf, Chute, and Pier Corporations, §§ 528-531. VII. Telegraph Corporations, §§ 536-541. VIII. Water and Canal Corporations, §§ 548- 551. IX. Homestead Corporations, §§ 557-566. X. Savings and Loan Corporations, §§ 571- 579. XI. Mining Corporations, 584-587. XII. Religious, Social, and Benevolent Corpo- rations, §§ 593-601. XIII. Cemetery Corporations, §§ 608-614. XIV. Agricultural Fair Corporations, §§ 620- 622. XV. Gas Corporations, §§ 628-632. XVI. Land and Building Corporations, §§ 639- 648. TITLE I. GENERAL PROVISIONS APPLICABLE TO ALL CORPO- RATIONS. Chapter I. Formation of Corporations, §§ 283- 320. II. Corporate Stock, §§ 322-349. III. Corporate Powers, §§ 354-393. IV. Extension and Dissolution of Corpo- rations, §§ 399-403. 69 FORMATION OF CORPORATIONS. § 283 CHAPTER I. FORMATION OF CORPORATIONS. Article I. Corporations Defined and how Organized, §§ 283- 300. II. By-laws, Directors, Elections, and Meetings, §§ 301-320. ARTICLE I. CORPORATIONS DEFINED AND HOW ORGANIZED. § 283. Corporation defined. § 284. What are public and private corporations. § 285. Corporations, how formed. § 286. For what purpose private corporations are formed. § 287. How corporations may continue their existence un- der this Code. § 288. Existing corporations not affected. § 289. Name of instrument creating corporation. § 290. Articles of incorporation, what to contain. § 291. Certain corporations to state further facts in articles. § 292. Five corporators, three to be citizens of the State, to sign articles and acknowledge the same. § 293. Prerequisite to filing articles. Amounts to be sub- scribed to be fixed. § 294. Prerequisite to filing articles of corporations for profit. § 295. Oath of officer to subscription of stock and payment of ten per cent. § 296. To file articles with county clerk and secretary of state, and receive certificate. Term of existence. § 297. Certified copy of certificate to be prima facie evi- dence. § 298. Who are members and who stockholders of a cor- poration. § 299. When member dies successor to be elected. § 300. Banking corporations may elect to have capital stock. § 283. A corporation is a creature of the law, having certain powers and duties of a natural per- son. Being created by the law, it may continue for any length of time which the law prescribes. Powers of corporations: See post, sees. 354 et seq. §§ 284-287 FORMATION OF CORPORATIONS. 70 Existence of corporations limited to fifty years Sees. 290, 401, post. Renewal of Franchise, act relating to: Set> post, Appendix, p. SIO, sec. 2. § 284. Corporations are either public or pri- vate. Public corporations are formed or organ- ized for the government of a portion of the tState; all other corporations are private. [Amendment approved March 30, 1874; Amendments 1873-4, 197, Tn effect July 1, 1874.] § 285. Private corporations may be formed by (he voluntary association of any five or more per- sons in the manner prescribed in this article. A majority of such persons must be residents of this State. [Amendment approved March 30, 1874; Amendments 1873-4, 197. In effect July 1, 1874.] See Stats. 1858, p. 2G4, sec. 2; Id. 57; 1850, 347; 1851, 523; 1861, 567, 607; 1853, 87, 169; 1857, 75; 1859, 281; 1862, 199; 1866, 743, 752; 1863, 624. Formation of corporation to be under general laws: Const. Cal. 1879, art. 12, sec. 1. § 286. Private corporations may be formed for any purpose for which individuals may lawfully associate themselves. [Amendment approved March 30, 1874; Amendments 1873-4, p. 198. In *>ffect July 1, 1874.] Corporations to give bonds required by law: See post. Appendix, p. 725. A^t for formation of chambers of commerce, boai*ds of trade, mechanics' institutes, and other Iviudred protective associations: See post, appen- dix, p. 737. Co-operative associations: See post, Appendix, pp. 719, 720. § 287. Any corporation existing on the first day of January, one thousand eight hundred and 71 FORMATION OF CORPORATIONS. § 288 seveuty-tliree, formed under the laws of this State, and still existing, which has not already elected to continue its existence, under the provisions of this Code applicable thereto, may, at any time hereafter, make such election by the unani- mous vote of all its directors, or such election may be made at any annual meeting of the stock- holders, or members, or at any meeting called by the directors expressly for considering the sub- ject, if voted by stockholders representing a ma- jority of the capital stock, or by a majority of the members, or may be made by the directors upon the written consent of that number of such stock- holders or members. A certificate of the action of the directors, signed by them and their secre- tary, when the election is made by their unani- mous vote, or upon the written consent of the stockholders or members, or a certificate of the proceedings of the meeting of the stockholders or members, when such election is made at any such meeting, signed by the chairman and secre- tary of the meeting, and a majority of the direc- tors, must be filed in the ofiice of the clerk of the county where the original articles of corporation are filed, and a certified copy thereof must be filed in the ofiice of the secretary of state; and there- after the corporation shall continue its existence under the provisions of this Code which are appli- cable thereto, and shall possess all the rights and powers, and be subject to all the obligations, re- strictions, and limitations prescribed thereby. [Amendment approved March 30, 1874; Amend- ments 1873-4, 198. In effect July 1, 1874.] § 288. No corporation formed or existing be- fore twelve o'clock noon, of the day upon which this Code takes effect, is affected by the provisions of Part lY. of Division First of this Code, unless such corporation elects to continue its existence §§ 2S9, 290 FORMATION OF CORPORATIONS. 72 under it as provided in section 287; but the laws under wliieli such corporations were formed and exist are applicable to all such corporations, and are repealed, subject to the provisions of this sec- tion. § 289. The instrument by w^hich a private cor- poration is formed is called "Articles of Incorpo- ration." § 290. What articles of incorporation must con- tain. Articles of incorporation must be prepared, setting forth,— 1. The name of the incorporation. 2. The purpose for which it is formed. 3. The place Avhere its principal business is to be transacted. 4. The term for which it is to exist, not ex- ceeding- fifty years. 5. The number of its directors or trustees, which shall not be less than five nor more than eleven, and the names and residence of those who are appointed for the first year; provided, that the corporate powers, business, and property of cor- porations formed or to be formed for the purpose of erecting and managing halls and buildings for the meetings and accommodation of several lodges or societies of any benevolent or charitable order or organization, and in connection therewith the leasing of stores and oflices in such building or buildings for other purposes, may be conducted, exercised, and controlled by a board of not less than five nor more than fifty directors, to be chosen from among the stockholders of such cor- poration, or from among the members of such order or organization; and provided also, that at any time during the existence of corporations for profit, other than those of the character last here- inabove provided for, the number of the directors may be increased or diminished, by a ma- 73 FORMATION OP CORPORATIONS. § 291 jority of the stockholders of the corpora- tion, to any number not exceeding eleven nor less than five, who must be mem- bers of the corporation; whereupon a certificate, stating the number of directors, must be filed, as provided for in section two hundred and ninety- six for the filing of the original articles of incor- poration; and provided also, that the corporate powers, business, and property of corporations formed, or to be formed, for social purposes, and not directly for profit, may be exercised, conduct- ed, and controlled by a board, consisting of such number of directors as may be in the constitution or by-laws provided; and corporations so formed may, in their constitution or by-laws, provide for the length of time that the directors, or any num- ber thereof, shall act. and may, in like manner, provide that certain directors, or a certain number of the board of directors to be selected by the corporation or the board of directors, in the mode and manner provided in the constitu- tion or by-laws, shall act for any specified length of time, or otherwise, as shall be in the constitu- tion or by-laws set forth. 6. The amount of its capital stock, and the number of shares into which it is divided. 7. If there is a capital stock, the amount ac- tually subscribed, and by whom. [Amendment approved March 31, 1891; Stats. 1891, p. 285.] Other requisites of the articles of incorporation of particular kinds of corporation will be found enumerated in the following sections: 291 as to railroad, wagon road, and telegraph corporations; 593 and 594 as to benevolent corporations. Limit of corporate existence: See sec. 354. subd. 1. Renewal of franchise. See post, appendix, p. BIT, sec. 2. § 291. The articles of incorporation of any rail- Civ. Code— 7. §§ 292-294 FORMATION OF CORPORATIONS. 74 road, wagon road, or telegraph organization must also state: 1. Tlie Idnd of road or telegraph intended to be constructed ; 2. The place from and to which it is intended to be run, and all the intermediate branches; 3. Ihe estimated length of the road or telegraph line; 4. That at least ten per cent, of the capital stock subscribed has been paid in to the treas- urer of the intended corporation. § 292. The articles of incorporation must be subscribed by five or more persons, a majority of whom must be residents of this State, and ac- knowledged by each before some officer authorized to take and certify acknowledgments of convey- ances of real property. [Amendment approved March 30, 1874; Amendments 1873-4, 199. In ef- fect July 1, 1874.] § 293. Each intended corporation named in section 291, before filing articles of incorporation, must have actually subscribed to its capital stock, for each mile of the contemplated work, the fol- lowing amounts, to -wit: 1. One thousand dollars per mile of railroads; 2. One hundred dollars per mile of telegraph lines; 3. Three hundred dollars per mile of wagon roads. § 294. Before the articles of incorporation of any corporation referred to in the preceding sec- tion are filed, there must be paid for the benefit of the corporation, to a treasurer elected by the subscribers, ten per cent, of the amount sub- scribed. Stats. 1850, p. 370, sees. 156, 157. 75 FORMATION OF CORPORATIONS. §§ 295-297 § 295. Before the secretary of state issues to any such corporation a certificate of the filing of articles of incorporation, there must be filed in his office an affidavit of the president, secretary, or treasurer named in the articles, that the required amount of the capital stocli thereof has been ac- tually subscribed, and ten per cent, thereof actually paid to a treasurer for the benefit of the corporation. Signing fictitious name or fraud in the subscrip- tion is made a misdemeanor by Penal Code, sec. 557. § 296. Upon filing the articles of incorporation in the office of the county cleric of the county in which the principal business of the company is to be transacted, and a copy thereof, certified by the county clerk, with the secretary of state, and the affidavit mentioned in the last section, where such affidavit is required, the secretary of state must issue to the corporation, over the great seal of the State, a certificate that a copy of the articles, con- taining the required statement of facts, has been filed in his office; and thereupon the persons sign- ing the articles, and their associates and succes- sors, shall be a body politic and corporate, by the name stated in the certificate, and for the term of fifty years, unless it is in the articles of incorpo- ration otherwise stated, or in this Code otherwise specially provided. [Amendment approved xMarch 30, 1874; Amendments 1S73-4, 199. In effect July 1, 1874.] § 297. A copy of any articles of incorporation filed in pursuance of this chapter, and certified by the secretary of state, or by the county clerk of the county where the original articles shall have been filed, must be received in all the courts of this State, and other places, as prima facie evi- dence of the facts therein stated. [Amendment §§ 298, 299 FORMATION OP CORPORATIONS. 76 approved March 8, 1895; Stats. 1895, p. 27. In ef- fect immediately.] Stats. 1862, 199; 1853, 83; 1850, 370, sec. 158; 18G1, 560, sec. 17. § 298. The owners of shares in a corporation which has a capital stock are called stocliholders. If a corporation has no capital stock, the corpo- rators and their successors are called members. § 299. No corporation hereafter formed shall purchase, locate, or hold property in any county in this State, without filing a copy of the copy of its articles of incorporation filed in the office of the secretary of state, duly certified by such secre- tary of state, in the office of the county clerk of the county in which such property is situated, Avithin sixty days after such purchase or location is made. Every corporation now in existence, whether formed under the provisions of this Code or not, must, within ninety days after the passage of this section, file such certified copy of the copy of its articles of incorporation in the office of the county clerk of every county in this State in which it holds any property, except the county where the original articles of incorporation are filed; and if any corporation hereafter acquire any property in a county other than that in which it now holds property, it must, within ninety days thereafter, file with the clerk of such county such certified copy of the copy of its articles of incorporation. The copies so filed with the several county clerks and certified copies thereof shall have the same force and effect in evidence as would the orig- inals. Any corporation failing to comply with the provisions of this section shall not maintain or defend any action or proceeding in relation to such property, its rents, issues, or profits, until such articles of incorporation, and such certified copy of its articles of incorporation, and such cer- 77 FORMATION OF CORPORATIONS. § 300 tified copy of the copy of its articles of incorpora- tion shall be filed at the places directed by the general law and this section; provided, that all corporations shall be liable in damages for any and all loss that may arise by the failure of such corporation to perform any of the foregoing duties within the time mentioned in this section; and provided further, that the said damages may be recovered in an action brought in any court of this State of competent jurisdiction, by any party or parties suffering the same, [Amendment ap- proved April 23, 1880; Amendments 1880f 13. In effect April 23, 38S0.] Right to purchase and hold real estate: See see. 354, subd. 4, post. § 300. Repealed. [March 9, ISliS; Stats. 1893, p. 112.] ARTICLE II. BY-LAWS, DIRECTORS, ELECTIONS, AND MEETINGS. § 301. Adoption of by-laws, when, how, and by whom. § 302. Directors, election of, &c. § 303. Ey-laws may provide for what. § 304. By-laws recoided and how amended. § 305. How many and who to be directors. § 306. Directors must be elected and by-laws adopted at first meeting. § 307. Elections, how conducted. § 308. Organization of board of directors, &c. § 309. Dividends to be made from surplus profits. § 310. Removal from office of directors, &c. § 311. Justice of the peace may order meeting when. § 312. Majority of stock must be represented. § 313. All stock may be represented in votes. § 314. Election may bo postponed. § 315. Complaints and quo warranto regarding elections. § 316. False certificate, report, or notice to make officers liable. § 317. Meeting by consent to be valid. § 318. Proceedings at meeting to be binding. § 319. Meetings, where held. § 320. Special meetings, how called. § 321. Must keep list of stockholders, «S;c. § 321a. Corporation may change its principal place of bus- iness. §§ 301-303 FORMATION OP CORPORATIONS. 78 § 301. Every corporation formed under this ti- tle must, within one mouth after filing articles of incorporation, adopt a Code of by-laws for its gov- ernment not inconsistent with the Constitution and laws of this State. The assent of stocliholders representing a majority of all the subscribed capi- tal stock, or of a majority of the members, if there be no capital stock, is necessary to adopt by-laws, if they are adopted at a meeting called for that purpose; and in the event of such meeting being called, two weeks' notice of the same by advertise- ment in some newspaper published in the county in which the principal place of business of the corporation is located, or if none is published therein, then in a paper published in an adjoining county, must be given by order of the acting president. The written assent of the holders of two-thirds of the stock, or of two-thirds of the members, if there be no capital stock, shall be ef- fectual to adopt a code of by-laAvs without a meet- ing for that purpose. [Amendment approved March 30, 1874; Amendments 1873-4, 200. In ef- fect July 1, 1874.] Repeal and amendment of by-laws: See sec. 304, post. § 302. The directors of a corporation must be elected annually by the stockholders or members, and if no provision is made in the by-laws for the time of election, the election must be held on the first Tuesday in June. Notice of such election must be given, and the right to vote determined as prescribed in section 301. 1 Postponing election: See sec. 314, and sec. 306, ] post. § 303. A corporation may, by its by-laws, where no other provision is specially made, provide j for: * 79 FORMATION OF CORPORATIONS. § 303 1. The time, place, aud manner of calling and conducting its meetings, and may dispense with notice of all regular meetings of stockholders or directors ; 2. The number of stockholders or members constituting a quorum; 3. The mode of voting by proxy; 4. The qualifications and duties of directors, the time of their annual election, and the mode and manner of giving notice thereof; 5. Tiie compensation and duties of officers; 6. The manner of election and the tenure of office of all officers other than the directors; and 7. Suitable penalties for violations of by-laws, not exceeding, in any case, one hundred dollars for any one offense. 8. The newspaper in which all notices of the meetings of stockholders or board of directors, notice of which is required, shall be published, which must be some newspaper published in the county where the principal place of business of the corporation is located, or if none is published therein, then in a newspaper published in an ad- joining county; provided, that when the by-laws prescribe the newspaper in which said publication shall be made, if from any cause, at the time any publication is desired to be made, the publication of such newspaper shall have ceased, the board of directors may, by an order entered on the rec- ords of the corporation, direct the publication to be made in some other newspaper published in the county, or if none is published therein, then in an adjoining county. [Amendment approved March 19, 1889; Amendments 1889, p. 3G4.] By-laws may also provide for amount of stock to be owned by director: Sec. 305, post; for the filling of vacancies on the board of direc- tors: Id.; for the duties of directors: Sec. 308; for the issuing of certificates of stock before full pay- § 304 FORMATION OF CORPORATIONS. SO meut therefor: Sec. 323; for the disposal of stock owued by the corporation: Sec. 344. For what the by-hiws of non-prolitable corporations may pro- vide, see sec. 599, post. Nature and effect of by-laws, generally: See ante, sec. 301. Powers of corporations: See post, sec. 354. § 304. All by-laws adopted must be certified bj^ a majority of the directors and secretary of the corporation, and copied in a legible hand, in some boolv kept in the office of the corporation, to be known as the "Book of Bj'-Laws," and no by-law .shall take effect until so copied, and the book shall then be opened to the inspection of the public during office hours of each day except holi- days. The by-laws may be repealed or amended, or new by-laws may be adopted, at the annual meeting, or at any other meeting of the stock- holders or members, called for that purpose by the directors, by a vote representing two-thirds of the subscribed stock, or by two-thirds o^" the mem- bers. The written assent of the holders of two- thirds of the stock, or two-thirds of the members if there be no capital stock, shall be effectual to repeal or amend any by-law, or to adopt addi- tional by-laws. The power to repeal and amend the by-laws, and adopt new by-laws, may, by a similar vote at any such meeting, or sim- ilar written assent, be delegated to the board of directors. The power, when del- egated, may be revoked by a similar vote, at any regular meeting of the stockholders or members. Whenever any amendment or new by-law is adopted, it shall be copied in the book of by-laws with the original by-laws, and imme diately after them, and shall not take effect until so copied. If any by-law be repealed, the fact of repeal, with the date of the meeting at which the SI FORMATION OF CORPORATIONS. § 305 repeal was enacted, or written assent was filed, shall be stated in said book, and until so stated the repeal shall not talve effect. [Amendment ap- proved March 14, 1SS5; Stats. 1885, 130.] § 305. The corporate powers, business, and property of all corporations formed under this ti- tle must be exercised, conducted, and controlled by a board of not less than five nor more than eleven directors, to be elected from amonj? the holders of stock, or, where there is no capital stock, then from the members of such corpora- tions; except that corporations formed, or to be formed, for the purpose of erecting and managing halls and buildings for the meetings and accom- modation of several lodges, or societies, of any be- nevolent or charitable order, or organization, and in connection therewith, the leasing of stores and olfices in such building or buildings, for other purposes, the corporate powers, business, and property thereof may be conducted, exercised, and controlled by a board of not less than five nor more than fifty directors, to be chosen from among the stockholders of such corporation, or from among the members of such order or organ- ization. A majority of the directors must be, in all cases, citizens of this State. Directors of cor- porations for profit must be holders of stock there- in, in an amount to be fixed by the by-laws of the corporation. Directors of all other corporations must be members thereof. Unless a quorum is present and acting, no business performed, or act done, is valid, as against the corporation. When- ever a vacancy occurs in the office of director, unless the by-laws of the corporation otherwise provide, such vacancy must be filled by an ap- pointee of the board. [Amendment approved Jan- uary 20, 18T(): Amendments 1875-6, 71. In effect January 20, 187G.] §§ 303-308 FORMATION OP CORPORATIONS. 82 Stats. 1853, 1G9; 1806, 743-752; 1850, 178, 347, sees. 159, 345, 347; 1802, 1S9; 1803, 024. Acts of the directors: See sec. 308, post. § 306. Repealed. L March 19, 1889. Stats. 1889, p. 305.] INEanner of electing: See sec. 307; and elections general^': Sec. 312. § 307. All elections must be by ballot, and every stoclcholder shall have the right to vote in person or by proxy the number of shares standing in his name, as provided in section three hundred and twelve of this Code, for as many persons as there are directors to be elected, or to cumulate said shares and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall thinlc fit. In corpo- rations having no capital stock, each member of the corporation may cast as many votes for one director as there are directors to be elected, or may distribute the same among any or all of the candidates. In either case, the directors receiving the hiq-hest number of votes shall be declared elected. The provisions of this section, so far as it relates to cumulative voting, shall not apply to literary, religious, scientific, social, or benevolent societies, unless it shall be so provided in their by-lav-s or rules. [Amendment approved Marct 10. 1887; Stats. 1887, p. 95. In effect immediately.] Stats. 1853, 159; 1801, 607; 1850, 347, 281; 1870, 577. Elections, how conducted: See sec. 312. § 308. Immediately after their election, the di- rectors must organize by the election of a presi- dent, who must be one of their number, a secre- tary, and treasurer. They must perform the du- 83 FORMATION OF CORPORATIONS. § 309 ties enjoined on them by law and the by-laws of the corporation. A majority of the directors is a sufficient number to form a board for the trans- action of business, and every decision of a ma- jority of the directors forming such board, made when duly assembled, is valid as a corporate act. § 309. Only dividends from surplus profits to be declared. The directors of corporations must not make dividends, except from the surplus prof- its arising from the business thereof: nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock: nor must they create debts beyond their subscribed capital stock; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock, except as hereinafter provided, nor reduce or increase the capital stoclv, except as herein specially provided. For a viola- tion of the provisions of this section, the directors under whose administration the same may iuive happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the directors at the time, or were not present when the same did happen) are, in their individual and private capacity, jointly and severally liable to the corporation, and to the cred- itors thereof, in the event of its dissolution, to the full amount of the capital stock so divided, with- drawn, paid out, or reduced, or debt contracted; and no statute of limitations is a bar to any suit against such directors for any sums for which they are liable by this section; provided, however, that where a corporation has been heretofore or may hereafter be formed for tlie purpose, among other things, of acquiring, holding, and selling real estate, water, and water rights, the directors of such corporation may, with the consent of stocli- holders representing two-thirds of ttie capital stock thereof, given at a meeting called for that § 310 FORMATIONS OF CORPORATIONS. 84 purpose, divide among the stocl^holders the land, water, or water rights so by such corporation held, in the proportions to which their holdings of such stocli at the time of such division would entitle them. All conveyances made by the cor- poration in pursuance of this section shall be made and received subject to the debts of such corporation existing at the date of the conveyance thereof. Nothing herein shall prohibit a division and distribution of the capital stoclv of any cor- poration which remains after the payment of all its debts, upon its dissolution, or the expiration of its term of existence, [Amendment approved March 31, 1891; Stats. 1891, p. 468.] Stats. 1850, 348; 1861, 607, sec. 50; 1861, 626. sec. 56; 1866, 747-757; 1853, 89, sees. 13, 14. Misconduct as to dividends and discounts. Penal Code, sec. 560; Fraud in accounts. Idem, sec. 563; False reports. Idem, sec. 564; By absent director. Idem, sees. 569, 570. Penalty for violation of this section: See Pen. Code. sec. 560. Director's liability for embezzlement by officers of corporation: Const. Cal. 1879, art. 12, sec. 3. Dividends of insurance companies: See post, sees. 417, 429. § 310. No director shall be removed from of- fice, unless by a vote of two-thirds of the mem- bers, or of stockholders holding two-thirds of the capital stock, at a general meeting held after pre- vious notice of the time and place, and of the in- tention to propose such removal. Meetings of stockholders for this purpose may be called by the president, or by a majority of the directors, or by members or stockholders holding at least one-half of the votes. Such calls must be in writing, and addressed to the secretary, who must thereupon give notice of the time, place, and object of the So FORMATION OF CORPORATIONS. §§ 3U, 312 meetiug, and by ^'hose order it is called. If the secretary refuse to give the notice, or if there is none, the call may be addressed directly to the members or stockholders, and be served as a no- tice, in M'hich case it must specify the time and l^lace of meeting. The notice must be given in the manner provided in section 301 of this title, unless other express provision has been made therefor in the by-laws. In case of removal, the vacancy may be filled by election at the same meeting. Act to protect stockholders and persons dealing with corporations from misrepresentations of of- ficers: See post. Appendix, p. 762. § 311. Whenever, from any couse, there is no person authorized to call or to preside at a meet- ing of a corporation, any justice of the peace of the county where such corporation is established may, on written application of three or more of the stockholders or of the members thereof, issue a warrant to one of the stockholders or members, di- recting him to call a meeting of the corporation, by giving the notice required, and the justice may in the same warrant direct such person to preside at such meeting until a clerk is chosen and qualified, if there is no other ofiicer present legally author- ized to preside thereat. § 312. At all elections or votes had for any purpose there must be a majority of the subscribed capital stock, or of the members, represented, either in person or by proxy in writing. Every person acting therein, in person or by proxy or representative, must be a member thereof or a bona fide stockholder, having stock in his own name on the stock books of the corporation at least ten days prior to the election. Any vote or election had other than in accordance with the provisions of this article is voidable at the in- stance of absent or any stockholders or members, Civ. Code— 8 §§ 313-315 FORMATION OP CORPORATIONS. 86 and may be set aside hj petition to the District Court of the county Tsbere the same was held. Any regular or called meeting of the stockholders or members may adjourn from day to dny, or from time to time, if for any reason there is not present a majoritj' of the subscribed stock or members, or no election had— such adjournment and the reasons tlierefor being recorded in the journal of proceedings of the board of directors. fAmendment approved April 1, 1878; Amendment: 1877-8, 79. In effect April 1, 1878.] Notice of meeting: See sec. 302. § 313. The shares of stock of an estate of a minor, or insane person, may be represented by his guardian, and of a deceased person bj' his execu- tor or administrator. [Amendment approved March 30, 1874; Amendments 1873-4, 203. In ef- fect July 1. 1874.] § 314. If from any cause an election does not take place on the day appointed in the by-laws, it may be held on anj' day thereafter as is pro- vided for in such by-laws, or to which such elec- tion may be adjourned or ordered by the direc- tors. If an election has not been held at the ap- pointed time, and no adjourned or other meeting for the purpose has been ordered by the directors, a meeting may be called by the stockholders as provided in section 310 of tliis article. Stats. 1850, 347, sec. 108; 1853, 88; 18G2, 199; 1861, 610; 1863. 624. § 315. Upon the application of any person or body corporate aggrieved by any election held by any corporate body, the District Court of tlie dis- trict in which such election is held must proceed forthwith to hear the allegations and proofs of the parties, or otherwise inquire into the matters of complaint, and thereupon confirm the election, or- 87 FORMATION OF CORPORATIONS. §§ 316-319 der a uew one, or direct such other relief in the premises as accords with right and justice. Upon filins: the petition, and before any further pro- ceedings are had under this section, five days' notice of the hearing must be given, under the direction of the court or the judge thereof, to the adverse partj' or those to be affected thei'eby. [Amendment approved April 1. 1878; Amendments 1877-8, 79. In effect April 1, 1878.] § 316. Any officer of a corporation vrho vrill- fully gives a certificate, or willfully makes an of- ficial report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, shall be liable for all the damages resulting therefrom to any person injured thereby; and if two or more officers unite or participate in the commission of any of the acts herein designated,, they shall be jointly and severally liable. [Amendment approved March 30, 1874; Amendments 1873-1, 203. In effect July 1, 1S74.] Penal Code, sees. o.'S, 564. § 317. When all the stockholders or members of a corporation are present at any meeting, how- ever called or notified, and sign a Avritten consent thereto on the record of such meeting, the doings of such meeting are as valid as if had at a meet- ing legally called and noticed. § 318. The stockholders or members of such corporation, when so assembled, may elect officers to fill all vacancies then existing, and may act upon such other business as might lawftdly be transacted at regular meetings of the corporation. § 319. The meetings of the stockholders ami §§ 320-321a FORMATION OP CORPORATIONS. 88 board of directors of a corporation must be held at its office or principal place of business. Changing place of business: See sec. 321. § 320. When no provision is made in the by- laws for regular meetings of the directors and the mode of calling special meetings, all meetings must be called by special notice in writing, to be given to each director by the secretary, on the or- der of the president, or if there be none, on the order of two directors. § 321. Every corporation doing a banlving bus- iness in this State must keep in its office, in a place accessible to the stockholders, depositors, and creditors thereof, and for their use, a boo'.i, containing a list of all stockholders in such cor- poration, and the number of shares of stock held by each; and every such corporation must keep posted in its office, in a conspicuous place, accessi- ble to the public generally, a notice, signed by the president or secretary, showing: First, The names of the directors of such corporation. Second, The number and value of shares of stock held by each director. The entries on such book, and such no- tice, shall be made and posted within twenty-four hours after any transfer of stock, and shall be conclusive evidence against each director and stockholder of the number of shares of stock held by each. The provisions of this section shall ap- ply to all banking corporations, formed or existing before twelve o'clock, noon, of the day on which this Code took effect, as well as to those formed after sucli time. [New section approved Janu- ary 29, 1876; Amendments 18T5-G, 72. In effect in sixtj^ days.] § 321a. Every corporation that has been or may be created under the general laws of this State may change its principal place of business from ?9 CORPORATE STOCK. § 322 one place to another in the same county, or from one city or county to another city of county within this State. Befoie such ch:inge is made, the consent in writing-, of the holders of two-thirds of the cap- ital stoclv must be obtained and filed in the office of the corporation. When such consent is obtain- ed and filed, notice of the intended removal or change must be published, at least once a week, for three successive weelvS, in some newspaper published in the county wherein said principal place of business is situated, if there is one pub- lished therein; if not, in a newspaper of an ad- joining county, giving the name of the county or city where it is situated, and that to which it is intended to remove it. [New section approved April 3, 1876; Amendments 1875-6, 73. In effect April 3. 1876.] CHAPTEPv II. CORPORATE STOCK. ARTICLE I. STOCK AND STOCKHOLDERS. § 322. Liabilities of stockholders. They may be released, when. § 323. Certificates, how and when issued. § 324. Transfer of shares. § 325. Transfer of shares held by married women, &c. Div- idends payable to married women. § 326. Non-resident stockholders. Bonds. § 327. Contract to relieve directors void. § 322. Each stocliholder of a corporation is in- dividually and personally liable for such portions of its debts and liabilities as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corpora- tion, and for a like proportion only of each debt § 322 CORPORATE STOCK. 90 or claim against tlie corporation. Any creditor of the corporation may institute joint or several actions against any of its stoclvholders, for the proportion of his claim payable by each, and in such action the court must ascertain the propor- tion of the claim or debt for which each defend- ant is liable, and a several judgment must be ren- dered against each, in conformity therewith. If any stockholder pays his proportion of any debt due from the corporation, incurred while he was such stockholder, he is relieved from any further personal liability for such debt, and if an action has been brought against him upon such debt, it shall be dismissed, as to him, upon his paying the costs, or such proportion thereof as may be prop- erly chargeable against him. The liability of each stockholder is determined by the amount of stock or shares owned by him at the time the debt or liability was incurred; and such liability is not released by any subsequent transfer of stock. The term stockholder, as used in this section, shall ap- ply not only to such persons as appear by the books of the corporation to be such, but also to every equitable owner of stock, although the same appear on the books in the name of another; and also to every person who has advanced the installments or purcliase money of stock in the name of a minor, so long as the latter remains a minor; and also tc every guardian, or other trustee, who voluntarily invests any trust funds in the stock. Trust funds in the hands of a guardian, or trustee, shall not be liable under the provisions of this section, hy rea- son of any such investment; nor shall the person for whose benefit the investment is made be re- sponsible in respect to the stock until he becomes competent and able to control the same; but tht responsibility of the guardian or trustee making the investment shall continue until that period. 91 CORPORATE STOCK. §§ 323, 324 Stock held as collateral security, or by a trustee, or in any other representative capacity, does noi make the holder thereof a stockholder within the meaning of this section, except in the cases above mentioned, so as to charge him with any propor- tion of the debts or liabilities of the corporation; but the pledger, or person or estate represented, is to be deemed the stockholder, as respects such liability. In corporations having no capital stock, each member is individually and personally lia- ble for his proportion of its debts and liabilities, and similar actions may be brought against him, either alone or jointly with other members, to en- force such liability, as by this section may be brought against one or more stockholders, and similar judgments may be rendered. The liabil- ity of each stockholder of a corporation formed under the laws of any other State or Territory of the United States, or of any foreign country, and doing business within this State, shall be the same as the liability of a stockholder of a cor- poration created under the Constitution and laws of this State. [Amendment approved March 15, 1876; Amendments 1875-6, 73. In effect in sixty days,] Act to protect stockholders from fraudulent rep- resentations of officers: See post, Appendix, p. 762. Liability of stockholders for debts of the corpo- ration is declared in Const. Cal. 1879, art. 12, sec. 3. § 323. All corporations for profit must issue certificates for stock when fully paid up, signed by the president and secretary, and may provide, in their by-laws, for issuing certificates prior to the full payment, under such restrictions and for such purposes as their by-laws may provide. § 324, Whenever the capital stock of any cor- poration is divided into shares, and certificates therefor are issued, such shares of stock, except as § 325 CORPORATE STOCK. 92 hereinafter provicled, are personal property, and may be transferred by indorsement by the signa- ture of the proprietor, his agent, attorney, or legal representative, and the delivery of the certificate; but such transfer is not valid, except as to the par- ties thereto, until the same is so entered upon the books of the corporation as to show the names of the parties by whom and to whom transferred, the number of the certificate, the number or designa- tion of the shares, and the date of transfer; pro- vided, hoAvever, that any corporation organized for, or engaged in the business of selling, distrib- uting, supplying, or delivering water for irriga- tion purposes or for domestic use, may in its by- laws provide that water shall only be so sold, dis- tributed, supplied, or delivered to owners of its capital stoclc. and that such stock shall be ap- purtenant to certain lands when the same are de- scribed in the certificate issued therefor; and when such certificate shall be so issued, and a certified copy of such by-law recorded in the office of the county recorder in the county where such lands are situated, the shares of stock so located on any land shall only be transferred with said lands, and shall pass as an appurtenance thereto. [Amendment approved March 2tj, 1895; Stats. 1895, p. 87. In effect in sixty days.] Act imposing tax on issue of certificates: See post. Appendix, p. 833. Repealed. § 325. Shares of stock in corporations held or owned by a married woman may be transferred by her, her agent, or attorney, without the signa- ture of her husband, in the same manner as if such married woman were a feme sole. All div- idends payable upon any shares of stock of a cor- poration held by a married woman may be paid to such married woman, her agent or attorney, in the same manner as if she were unmarried, and it 93 CORPORATE STOCK. §§ 326, 327 is not necessary for her husband to join in a re- ceipt therefor; and any proxy or power given by a married woman, touching any shares of stock of any corporation owned by her, is valid and binding without the signature of her husband, the same as if she were unmarried. § 326. When the shares of stock in a corpora- tion are owned by parties residing out of the State, the president, secretary, or directors of the cor- poration, before entering any transfer of the shares on its boolvS, or issuing a certificate there- for to the transferee, may require from the attor- ney or agent of tlie non-resident owner, or from the person claiming under the transfer, an affida- vit or other evidence that the non-resident owner was alive at the date of the transfer, and if such affidavit or other satisfactory evidence be not fur- nished, may require from the attorney, agent, or claimant, a bond of indemnity, with two sureties, satisfactory to the officers of the corporation, or, if not so satisfactory, then one approved by a judge of the Superior Court of the county in which the principal office of the corporation is situated, con- ditioned to protect the corporation against any lia- bility to the legal representatives of the owner of the shares, in case of his or her death before the transfer; and if such affidavit or other evidence or bond be not furnished when required, as herein provided, neither the corporation, nor any officer thereof, shall be liable for refusing to enter the transfer on the books of the corporation. L Amend- ment approved February 16, 1883; Stats. 1883, 4. In effect February IG, 1883.] § 327. Any contract or contracts, verbal or written, hereafter made, whereby it is sought di- rectly or indirectly to relieve any director or trus- tee of any corporation or joint stock association from any liability imposed by section three of ar- §g 3S1, 332 CORPORATE STOCK. 94 tide twelve of the Constitution of California, are hereby declared to be and shall be null and void. [New section approved April 12, 1880; Amend- ments 1880, 9. In effect April 12, 1880.] ARTICLE II. ASSESSMENTS OF STOCK. § 331. Directors may levy assessments. § 332. Limitation. How levied. § 333. Levy of assessment. Old assessment remaining un- paid. § 334. What order shall contain. § 335. Notice of assessment. Form. § 336. Publication and service. § 337. Delinquent notice. Form. § 338. Contents of notice. § 3;]9. How published. § 340. .Jurisdiction acquired, how. § 341. Sale to be by public auction. § 3+2. Hiphest biddt r to be the purchaser. § 343. In default of bidders, corporation may purchase. § 344. Disprs'tion of stock purchased by corporation. § 345. Extension of time of delinquent sale. § 343. Assessments shall not bo invalidated. § 347. Action for recovery of stock, and limitation thereof. § 348. Affidavits of publication. Affidavits of sale. To be filed. § 349. Waiver of sale. Action to recover assessment. § 331. The directors of any corporation formed or existini? under the laws of this State, after one- fonrth of its capital stoclv has been subscribed, may, for the purpose of paying expenses, conduct- ing business, or paying debts, levy and collect as- sessments upon the subscribed capital stock there- of, in the manner and form, and to the extent pro- vided herein. [Amendment approved March 30, 1874; Amendments 1873-4, 206. In effect July 1 1874.] § 332. No one assessment must exceed ten per cent, of the amount of the capital stock named in 95 CORPORATE STOCK. §§ 333, 334 the articles of incorporation, except in the cases in this section otherwise provided for, as follows: 1. If the whole capital of a corporation has not been paid up, and the corporation is unable to meet its liabilities or to satisfy the claims of its creditors, the assessment may be for the full amount unpaid upon the capital stock; or if a less amount is sutficieut, then it may be for such a percentage as will raise that amount; 2. Q'he directors of railroad corporations may assess the capital stock in installments of not more than ten per cent, per month, unless in the arti- cles of incorporation it is otherwise provided; 3. The directors of fire or marine insurance cor- porations may assess such a percentage of the cap- ital stock as they deem proper. § 333. No assessment must be levied while any portion of a previous one remains unpaid; un- less: 1. The power of the corporation has been exer- cised in accordance with the provisions of this ar- ticle for the purpose of collecting such previous assessment; 2. The collection of the previous assessment has been enjoined; or, 3. The assessment falls within the provisions of either the first, second, or third subdivisions of section 332. § 334. Every order levying an assessment must specify the amount thereof, when, to whom, and where payable; fix a day, subsequent to the full term of publication of the assessment notice, on which the unpaid assessments shall be delinquent, not less than thirty nor more than sixty days from the time of making the order levying the assess- ment; and a day for the sale of delinquent stock, not less than fifteen nor more than sixty days from the day the stock is declared delinquent. §§ 335, 336 CORPORATE STOCK. 96 § 335. Upon the making of the order, the sec- retary shall cause to be published a notice there- of, in the following form: (Name of corporation in full. Location of prin- cipal place of business.) Notice is hereby given, that at a meeting of the directors, held on the (date), an assessment of (amount) per share was levied upon the capital stock of the corporation, payable (when, to whom, and where). Any stock upon w^hich this assessment shall remain unpaid on the (day fixed) will be delinquent and adver- tised for sale at public auction, and, unless pay- ment is made before, will be sold on the (day ap- pointed), to pay the delinquent assessment, to- gether with costs of advertising and expenses of sale. (Signature of secretary, with location of office.) § 336. The notice must be personally served upon each stockholder, or, in lieu of personal ser- vice, must be sent through the mail, addressed to each stockholder at his place of residence, if known, and if not known, at the place where the principal office of the corporation is situated, and be published once a week, for four successive wrecks, in some newspaper of general circulation anddevoted to thepublicationof general news, pub- lislied at the place designated in the articles of in- corporation as the principal place of business, and also in some newspaper published in the county in which the works of the corporation are situated, if a paper be published therein. If the works of the corporation are not within a State or Terri- tory of the United States, publication in a paper of the place where they are situated is not neces- sary. If there be no newspaper published at the place designated as the principal place of business of the corporation, then the publication must be made in some other newspaper of the county, if 97 CORPORATE STOCK. §§ 337, 338 there be one, and if there be none, then in a news- paper published in an adjoining county. [Amend- ment approved March 30, 1874; Amendments 1873-4, 20G. In effect July 1, 1874.] § 337. If any portion of the assessment men- tioned in the notice remains unpaid on the day specified therein for declaring the stock delin- quent, the secretary must, unless otherwise or- dered by the board of directors, cause to be pub- lished in the same papers in which the notice hereinbefore provided for shall have been pub- lished, a notice substantially in the following form : (Name in full. Location of principal place of business.) NOTICE.— I'here is delinquent upon the following described stock, on account of as- sessment levied on the (date), (and assessments levied previous thereto, if any), the several amounts set opposite the names of the respective shareholders, as follows: (Names, number of cer- tificate, number of shares, amount.) And in ac- cordance with law (and an order of the board of directors, made on the [date], if any such order shall have been made), so many shares of each parcel of such stock as may be necessary, will be sold, at the (particular place), on the (date), at (the hour) of such day, to pay delinquent assess- ments thereon, together with costs of advertising and expenses of the sale. (Name of secretary, with location of office.) § 338. The notice must specify every certificate of stock, the number of shares it represents, and the amount due thereon, except where certificates may not have been issued to parties entitled thereto, in which case the number of shares and amount due thereon, together with the fact that the certificates for such shares have not been is- sued, must be stated. Civ. Code— 9 §§ 339-343 CORPORATE STOCK. 98 § 339. The notice, when published in a daily paper, must be published for ten days, excluding Sundays and holidays, previous to the day of sale. When published in a weekly paper, it must be published in each issue for two weeks previous to the day of sale. The first publication of all de- linquent sales must be at least fifteen days prior to the day of sale. § 340. By the publication of the notice, the cor- poration acquires jurisdiction to sell and convey a perfect title to all of the stock described in the notice of sale upon which any portion of the as- sessment or costs of advertising- remains unpaid at the hour appointed for the sale, but must sell no more of such stock than is necessary to pay the assessments due and costs of sale. § 341. On the day, at the place, and at the time appointed in the notice of sale, the secretary must, unless otherwise ordered by the directors, sell or cause to be sold at public auction, to the highest bidder for cash, so many shares of each parcel of the described stock as may be necessary to pay the assessment and charges thereon, according to the terms of sale; if payment is made before the time fixed for sale, the party paying is only re- quired to pay the actual cost of advertising, in addition to the assessment. § 342. The person offering at such sale to pay the assessment and costs for the smallest number of shares or fraction of a share is the highest bid- der, and the stock purchased must be transferred to him on the stock books of the corporation, on payment of the assessment and costs. § 343. If, at the sale of stock, no bidder offers the amount of the assessments and costs and charges due, the same may be bid in and pur- 99 CORPORATE STOCK. §§ 344-346 chased by the corporation, through the secretary, president, or any director thereof, at the amount of the assessments, costs, and charges due; and the amount of the assessments, costs, and charges must be credited as paid in full on the booivs of the corporation, and entry of the trans- fer of the stock to the corporation must be made on the books thereof. AVhile the stock remains the property of the corporation it is not assessable, nor must any dividends be declared thereon; but all assessments and dividends must be apportioned upon the stock held by the stockholders of the corporation. § 344. All purchases of its own stock made by any corporation vest the legal title to the same In the corporation; and the stock so purchased is held subject to the control of the stockholders, who mny make such disposition of the same as they deem fit, in accordance with the by-laws of the corporation or vote of a majority of all the remaining shares. "Whenever any portion of the capital stock of a corporation is held by the corpo- ration by ])urchase, a majority of the remaining shares is a majority of the stock for all purposes of election or voting on any question at a stock- holders' meeting. § 345. The dates fixed in any notice of assess- ment or notice of delinquent sale, published ac- cording to the provisions hereof, may be extended from time to time for not more than thirty days, by order of the directors, entered on the records of the corporation; but no order extending the time for the performance of any act specified Id any notice is effectual unless notice of such ex- tension or postponement is appended to and pub- lished with the notice to which the order relates. § 346. No assessment is invalidated by a fail- §§ 347, 348 CORPORATE STOCK. 100 ure to make publication of tlie notices hereinbe- fore provided for, nor by the nonperformance of any act required in order to enforce the payment of the same; but in case of any substantial error or omission in the course of proceedings for collec- tion, all previous proceedings, except the levying of the assessment, are void, and publication must be begun anew. § 347. No action must be sustained to recover stocli sold for delinquent assessments, upon the ground of irregularity in the assessment, irregu- larity or defect of the notice of sale or defect or ir- regularity in the sale, unless the party seeking to maintain such action first pays or tenders to the corporation, or tbe party holding the stock sold, the sum for which the same was sold, together with all subsequent assessments which may have been paid thereon and interest on such sums from the time they were paid; and no such action must be sustained unless the same is commenced by the filing of a complaint and the issuing of a sum- mons thereon within six months after such sale was made. § 348. The publication of notice required by this article may be proved by the affidavit of the printer, foreman, or principal clerk of the news- paper in which the same was published; and the aflidavlt of the secretary or auctioneer is prima facie evidence of the time and place of sale, of the quantity and particular description of the stock sold, and to whom, and for what price, and of the fact of the purchase money being paid. The aflB- davits must be filed in the office of the corporation, and copies of the same, certified by the secretary thereof, are prima facie evidence of the facts therein stated. Certificates, signed by the secre- tary, and under the seal of the corporation, are prima facie evidence of the contents thereof. 101 CORPORATE POWERS. §§ 349, 354 L Amendment, approved March 30, 1874; Amend- ments 1873-4, 207. In effect July 1, 1874.] § 349. On the day specified for declaring the stock delinquent, or at any time subsequent there- to and before the sale of the delinquent stock, the board of directors may elect to Tvaive further pro ceedings under this chapter for the collection of delinquent assessments, or any part or portion thereof, and may elect to proceed by action to re- cover the amount of the assessment and the costs and expenses already incurred, or any part or por- tion thereof. CHAPTER III. CORPORATE POWERS. Article I, General Powers, §§ 354-361. II. Records, §§ 377, 378. III. Examination of Corporation, §§ 382-384. IV. Judgment against and Sale of Corporate Prop- erty, §§ 388-393. ARTICLE I. GENERAL POWDERS. § 354. Powers of corporations. § 355. Limitation of powers. § 356. Banking expressly prohibited. § 357. Misnomer does not invalidate Instrument. § 358. Corporation to organize within one year. § 359. Increasing and diminishing capital stock, how. § 330. Corporations may acquire real property, and how much. § 361. Consolidation of mining corporations. § 362. Amendment of articles or certificate of incorpora- tion. 5 363. Power to hold real estate. § 363. Erroneous filing of articles of incorporation. § 354. Every corporation, as such, has power: 1. Of succession by its corporate name, for the period limited; and when no period is limited, per- petually ; § 354 CORPORATE POWERS. 102 2. To sue and be sued, in any court; 3. To make and use a common seal, and alter the same at pleasure; 4. To purchase, hold, and convey such real and personal estate as the purposes of the corporation may require, not exceeding the amount limited in this part; 5. To appoint such subordinate officers or agents as the business of the corporation may require, and to allow them suitable compensation; 6. To make by-laws, not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of its stock; 7. To admit stockholders or members, and to sell their stock or shares for the payment of as- sessments or installments; S. To enter into any obligations or contracts es- sential to the transaction of its ordinary affairs, or for the purposes of the corporation. The Code, in defining a corporation, says it has "certain powers and duties of a natural person": Sec. 283. Section 3o4 proceeds to enumerate these powers, and section 355 limits its powers to those enumerated and to those necessarily incidental. Act providing for payment of wages of mechan- ics and laborers, see post. Appendix, p. 750. Subd. 1. Succession for period limited: See Code limit of fifty years, sec. 290. Limit for homestead corporations ten years: Sec. 557. Where action against corporation may be brought: See Const. Cal. 1879, art. 12, sec. 15; see Code Civ. Proc, sec. 395. Acquiring property by eminent domain: See Code Civ. Proc, sees. 1237 et seq. Making contracts generally: See infra, subd. 8. Subd. 6. Power to make by-laws: See ante, sec. 301. Selling delinquent shares: See ante, sees. 331 et seq. 103 CORPORATE POWERS. §§ 355-358 Powers of municipal corporations: See Polit. Code. § 355. In addition to the powers enumerated in the preceding section, and to tliose expressly given in that title of this part under whicli it is incorporated, no corporation shall possess or exer- cise any corporate powers, except such as are necessary to the exercise of the powers so enum- erated and given. Incidental powers.— This section is a negative grant of incidental powers, with respect to which, see sec. 354. § 356. No corporation shall create or issue bills, notes, or other evidences of debt, upon loans or otherwise, for circulation as money. Issuing or circulating paper money, except as authorized by the United States, punished by I'enal Code, § 648. Constitutional provision to the same purpose: Const. Cal. 1879, art. 12, sec. 5. That this limita- tion upon corporate powers does not prevent the execution of negotiable instruments, see sec. 354, subd. 8. § 357. The misnomer of a corporation in any written instrument does not invalidate the instru- ment, if it can be reasonably ascertained from it what corporation is intended. § 358. If a corporation does not organize and commence the transaction of its business or the construction of its works within one year from the date of its incorporation, its corporate powers cease. The due incorporation of any company, claiming in good faith to be a corporation under this part, and doing business as such, or its right to exercise corporate powers, shall not be inquired into, collaterally, in any private suit to which such § 359 CORPORATE POWERS. 104 de facto corporation may be a party; but such in- quiry may be had at the suit of the State on in- formation of the attorney general. Provision respecting railroad companies, two years: See sec. 468, post. Same respecting street railroads: See sec. 502. post. § 359. No corporation shall issue stocli or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness is void. Every corporation may increase or diminish its capital stoclv, create or increase its bonded indebt edness, subject to the following provisions: First. The capital stock of a corporation may be increased or diminislied at a meeting of the stock- holders by a vote representing at least two-thirds of the subscribed capital stock; such meeting must be called by the board of directors, and notice must be given by publication in a newspaper pub lished in the county where the principal place of business of such corporation is located, or if there be none published in said county, then in a news- paper published in an adjoining county, such pa- per to be designated by the board of directors in the order calling the meeting. Second. The notice must specify the object of the meeting, and the amount to which it is pro- posed to increase or diminish the capital stock, the time and place of holding the meeting, which lat- ter must be at the principal place of business of the corporation, and at the building where the board of directors usually meet. The notice herein provided must be published once a week for at least sixty days. The capital stock cannot be di- minished to an amount less than the indebtedness of the corporation. Third. The bonded indebtedness of a corporation 105 CORPORATE POWERS. § 359 may be created or increased by a vote of the stockholders representing at least two-thirds of the subscribed capital stock at a meeting called by the board of directors, and after notice of the time and place of the meeting, published in the same manner and for the time above prescribed, which notice shall state the amount of the bonded indebtedness which it is proposed to create, or the amount to which it is proposed to increase such indebtedness, and shall in all other respects con- tain the same matters as are above provided and set forth in tiie notice of a meeting to increase or diminish the capital stock. Fourth. In addition to the notice by publication, the secretary of the corporation shall also address a notice to each of the stockholders whose names appear on the company's books as sufficiently ad- dressed, at his place of residence if known, and if not known, then at the principal place of busi- ness of the corporation, which ntice shall be mailed to such stockholders at least thirty days before the day appointed for such meeting. And upon such increase or diminution of the capital stock or creation or increase of bonded in- debtedness being made as herein provided, a cer- tificate must be signed by the chairman and sec- retary of the meeting and a majority of the direc- tors, showing a compliance with the requirements of this section, the amount to which the capital stock has been increased or diminished, or the amount of the bonded indebtedness created or to which the bonded indebtedness may have been in- creased, and the amount of stock represented at the meeting, and the whole vote by which the ob- ject was accomplished. The certificate must be filed in the office of the clerk of the county where the original articles of incorporation are filed, and a certified copy thereof in the office of the secre- tary of state; and thereupon the capital stock §§ 360, 361 CORPORATE POWERS. 106 shall be so increased or diminished, or the bonded indebtedness may be created or increased accord- ingly. A\ hen the by-laws of the corporation pre- scribe the paper in which notices of meeting are to be published, the notices herein provided for shall be published in such paper unless publication thereof shall have ceased. [Amendment approved March 23, 1893; Stats. 1898, p. 191.] The amendment of 1885, supra, was an amend- ment to the section as amended in 1883: Stats. 1883, 81. "The preceding sections of this article w^ert taken from Stats. 1850, 847, sees. 1-6. See also Stats. 1858, 88; 1861, 85; 1862, 540, 199, 110; 1866. 747; 1868, 325": Commissioners' note. § 360. No corporation shall acquire or hold any more real property than may be reasonably ueces sary for the transaction of its business, or the con- struction of its worlvs, except as otherwise spe- cially xjrovided. A corporation may acquire real property, as provided in Title VII., Part III., Code of Civil Procedure, when needed for any of the uses and purposes mentioned in said title [Sees. 1237, 12j3J. Amendment approved March 80. 1>74; Amendments 1873-4, p. 208. In effect July 1, 1874.] Act authorizing owning of lots and building where business carried on: See post. Appendix, p. Power of insurance corporations to acquire land: See sec. 415. Power of railroad corporation to acquire land: See sec. 465. § 361. It shall be lawful for tw^o or more corpo- rations formed, or that may hereafter be formed, under the laws of this State, for mining purposes, which own or possess mining claims or lands ad- joining each other, or lying in the same vicinity, to consolidate their capital stock, debts, property, assets, and franchises, in such manner and upon 107 CORPORATE POWERS. § 361 sueli terms as may be agreed upon by the respec- tive boards of directors or trustees of such com- panies so desiring to consolidate their interests; but no such consolidation shall take place without the written consent of the stocliholders represent- ing two-thirds of the capital stocli of each com- pany, and no such consolidation shall, in any way, relieve such companies, or the stocliholders there- of, from any and all just liabilities; and in case of such consolidation, due notice of the same shall be given, by advertising, for one month, in at least one newspaper in the county and State where the said mining property is situated, if there be one published therein, and also in one newspaper pub- lislied in 1 he county, or city and county, where the principal place of business of any of said com- panies shall be. And when the said consolidation is completed, a certificate thereof, containing the manner and terms of said consolidation, shall be filed in the ofiice of the county clerli of the county in which the original certificate of incorporation of any of said companies shall be filed, and a copy thereof shall be filed in the office of the secretary of state; such certificate shall be signed by a ma- jority of each board of trustees or directors of the original companies, and it shall be their duty to call, within thirty days after the filing of such certificate, and after at least ten days' public notice, a meeting of the stockholders of all of said companies so consolidated, to elect a board of trustees or directors for the consolidated company, for the year thence next ensuing. The said certifi- cate shall also contain all the requirements pre- scribed by section two hundred and ninety of said Civil Code. This act shall apply to all corporations formed under the laws of this State, whether formed under the said Civil Code or prior thereto. [New section approved March 20, 1876; Amendments x875-6, p, 75. In effect March 20, 1876.] § 362 CORPORATE POWERS. 108 This section was added by the Act of 1875-6; Amendments 1875-6, p. 75. Section two of the act was as follows: Sec. 2. This act shall apply to all corporations formed under the laws of this state, whether formed under the said Civil Code, or prior thereto. Sec. 3. This act shall talie effect from and aftei its passage. § 362. Any corporation may amend its articles of association or certificate of incorporation by a majority vote of its board of directors or trustees, and bj' a vote or written assent of the stoclihold- ers representing at least two-thirds of the sub- scribed capital stocli of such corporation; and a copy of the said articles of association or certi- ficate of incorporation, as thus amended, duly cer- tified to be correct by the president and secretary of the board of directors or trustees of such corpo- ration, shall be filed in the office or offices where the original or certificate of incorporation are re- quired by this code to be filed; and from the time of so filing such copy of the amended articles of association or certificate of incorporation, such corporation shall have the same powers, and it and the stockholders thereof shall thereafter be subject to the same liabilities, as if such amend- ment had been embraced in the original articles or certificate of incorporation; provided, that the time of the existence of such corporation shall not be by such amendment extended beyond the time fixed in the original articles or certificate of incor- poration; provided further, that such original and amended articles or certificate of incorporation shall together contain all the matters and things required under which the original articles of asso- ciation or certificate of incorporation were exe- cuted and filed; and provided further, that nothing herein contained shall be construed to cure or 109 CORPORATE POWERS. § 363 amend any defect existing in any original certifi- cate of incorporation lieretofore filed, by reason that sncli certificate does not set forth the matters required to make the same valid as a certificate of incorporation at the time of its filing; and also provided, that if the assent of two-thirds of the said stockholders to snch amendment has not been obtained, that a notice of the intention to make the amendment shall, first be advertised for thirty (30) days in some newspaper published in the town or county, or city and county, in which the principal place of business of the association oi corporation is located, before the filing of the pro- posed amendment; and provided also, that noth- ing in this section shall be construed to authorize any corporation to diminish its capital stock. [Amendment approved March 11, 1893; Stats. 1893, p. 131.] § 363. By a unanimous vote of all the directors at any regular meeting, any corporation existing or hereafter to be formed under the laws of this State may acquire and hold the lots and building on and in which its business is carried on, and may improve the same to any extent required for the convenient transaction of its business. [In ef- fect March 5, 1889. New section added by act ap- proved March 5, 18S9; Stats. 1889, p. 67. 'in effect immediately.] § 363. When articles of incorporation have been prepared, subscribed, and executed in accordance with the provisions of sections two hundred and ninety and two hundred and ninety-two of the Civil Code, and such original articles filed by error or inadvertence with the clerk of a county other than that named in the articles of incorporation as the county in which the principal place of business is to be transacted, and the Secretary of State shall have issued a certificate of incorporation based on Civ. Code-lO § 363 CORPORATE POWERS. 110 a certified copy of such origiual articles of incor- poration, any stockholder or director of such cor- poration may petition the Superior Court of the county in which said original articles of incorpora- tion Avere filed for an order to withdraw such ori- ginal articles of incorporation, and file in place thereof a certified copj^ of the copy thereof on file in the otfice of the Secretary of State. Such peti- tion must be verified, and must state clearly the facts, showing that such articles of incorporation were tiled by inadvertence and mistalie; and notice of the hearing of said petition must be given for at least ten days before the day of hearing, by publication in a newspaper published in the coun- ty where such petition is filed. Upon the day set for hearing the petition the Superior Court may grant an order allowing such original articles of incorporation to be withdrawn, and a certified copy of the copy in the otfice of the Secretary of State in the place thereof filed; and the original articles of incorporation must be filed within ten days thereafter in the county in which the prin- cipal place of business is to be transacted, as stated in such articles of incorporation, and a cer- tified copy of the order allowing such action must be filed with the certified copy in the office of the Secretary of State, after which said corporation shall be entitled to all rights and privileges of a ])rivate corporation, and the title to any property it may have previously acquired shall not be af- fected by reason of the failure to file the original articles of incorporation in the first instance. [New section approved March 19, 1889; Stats. 1889, p. 332. In effect immediately.] Ul CORPORATE POWERS. §§ 377, 378 ARTICLE II. RECORDS. § 377. Records — of what, and how kept. § 378. Other recoids to be kept by corporations for profit, and others. § 377. All corporations for profit are required to keep a record of all their business transactions; a journal of all meetings of their directors, mem- bers, or stockholders, with the time and place of holding the same, whether regular or special, and if special, its object, how authorized, and the no- tice thereof given. The record must embrace every act done or ordered to be done; who were present, and who absent; and, if requested by any director, member, or stockholder, the time shall be noted when he entered the meeting or obtained leave of absence therefrom. On a similar request the ayes and noes must be taken on any proposi- tion, and a record thereof made. On similar re- quest, the protest of any director, member, or stockholder, to any action or proposed action, must be entered in full— all such records to be open to the inspection of any director, member, stock- holder, or creditor of the corporation. Refusal to permit inspection: See Penal Code, sees. 5G5, 5G9. § 378. In addition to the records required to be kept by the preceding section, corporations for profit must keep a book, to be known as the "Stock and Transfer Book," in which must be kept a rec- ord of all stock: the names of the stockholders, or members, alphabetically arranged; installments paid or unpaid; assessments levied and paid or un- paid; a statement of every alienation, sale, or transfer of stock made, the date thereof, and by and to whom ; and all such other records as the by- §§ 382, 383 CORPORATE POWERS. 112 laws prescribe. Corporations for religious and benevolent purposes must provide in their by-laws for such records to be kept as may be necessary. Such stocli and transfer book must be kept open to the inspection of any stockholder, member, or creditor. See acts concerning Statements by Banks and Bankers, Appendix, p. 71G et seq. ARTICLE III. EXAMINATION OF CORPORATIONS, ETC. § 382. Examination into affairs of corporation, how made by omceis of Slate. § 383. Examination made by tho legislature. § 384. Chapter and article may be repealed. § 382. The attorney general or district attor- ney, whenever and as often as required by the governor, must examine into the affairs and con- dition of any corporation in this State, and re-, port such examination, in writing, together with a detailed statement of facts, to the governor, who must lay the same before the legislature; and for that purpose tlie attorney general or district attor- ney may administer all necessary oaths to the di- rectors and officers of any corporation, and may examine them on oath in relation to the affairs and condition thereof, and may examine the books, pa- pers, and documents belonging to such corpora- tion, or' appertaining to its affairs and condition. Permitting inspection of books: See Penal Code, sec. 565. § 383. The legislature, or either branch thereof, may examine into the affairs and condition of any corporation in this State at all times; and, for that purpose, any conmilttee appointed by the legisla- ture, or eitlier branch thereof, may administer all necessary oaths to the directors, oflScers, and 113 CORPORATE POWERS. § 384 stockholders of siicli corporation, and may exam- ine them on oath in relation to the affairs and con- dition thereof; and may examine the safes, books, papers, and docnmeuts belonging to such corpora- tion, or pertaining to its affairs and condition, and compel the production of all keys, books, papers, and documents by summary process, to be issued on application to any court of record or any judge thereof, under such rules and regulations as the court may prescribe. Permitting inspection of books: See Fenal Code, sec. 5G5. § 384. The legislature may at any time amend or repeal this part, or any title, chapter, article, or section thereof, and dissolve all corporations cre- ated thereunder; but such amendment or repeal does not, nor does the dissolution of any such cor- poration, take away or impair any remedy given against any such corporation, its stockholders, or officers, for any liability which has been previous- ly incurred. Note- Amending or repealing charter of corpora- tions.- In the constitution of California, in force when tliis code was adopted, was the following sec- tion: "Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes. All general laws and spe- cial act.s passed pursuant to this section may be al- tered from time to time or repealed": Art. 4, sec. 31. The constitution of 1879. art. 12, sec. 1, preserves this section in the following language: "Corpora- lions may be formed under general laws, but shall not be created by special act. All laws now in force in this state concerning corporations, and all laAvs that may be hereafter passed pursuant to this section may be altered from time to time or repealed." The Code Commissioners quote the sec- tion from the former Constitution, and sav: "Sec- §§ 388, 389 CORPORATE POWERS. 114 tion 384 was inserted in this code out of an abund- ance of caution, and not because it was deemed necessary, for there can be but little donbt that the constitutional provision quoted at the head of this note enters into and becomes a part of the contract, thereby reserving to the legislature the right to repeal, impair, or alter any law relative to the formation of corporations, even though the result reached would be the dissolution of every corporation organized within the State." ARTICLE IV. JUDGMENT AGAINST AND SALE OF CORPORATE PROPERTY. § 388. Franchise may be treated as property, and sold uu- d V execution. § 3S9. Purchaser to transact business of corporation. § 3S0. Purchaser may recover penalties, &c. I 391. Corroration to retain powers after sale. § 392. Redi^mplion of franchise. § 393. When proceedings under execution may be had. § 388. For the satisfaction of any judgment against any person, company, or corporation au- thorized to receive tolls, the franchise, and all the rights and privileges thereof, may be levied upon and sold under execution, in the same manner, and with the same effect, as any other property. [Approved February 23, 1897, c. 20.] Seizure on execution: See Cede Civ. Proc, sec. 688. § 389. The purchaser at the sale must receive a certiticate of purchase of the franchise, and be immediately let into the possession of all prop- erty necessary for the exercise of the powers and the receipt of the proceeds thereof, and must there- after conduct the business of such corporation, with all its powers and privileges, and subject td all its liabilities until the redemption of the same, as hereinafter provided. 115 CORPORATE POWERS. §§ 390-393 § 390. The purchaser or his assignee is entitled to recover any penalties imposed by law and re- coverable by the corporation for an injury to the franchise or property thereof, or for any damages or other cause, occurring during the time he holds the same, and may use the name of the corpora- tion for the purpose of any action necessary to re- cover the same. A recovery for damages or any penalties thus had is a bar to any subsequent ac- tion by or on behalf of the corporation for the same. § 391. The corporation whose franchise is sold, as in this article provided, in all other respects re- tains the same powers, is bound to the discharge of the same duties, and is liable to the same pen- alties and forfeitures, as before such sale. § 392. The corporation may, at any time with- in one year after such sale, redeem the franchise, by paying or tendering to the purchaser thereof the sum paid therefor, with ten per cent interest thereon, but without any allowance for the toll which he may in the meantime have received; and upon such payment or tender the franchise and all the rights and privileges thereof revert and belong to the corporation, as if no such sale had been made. § 393. The sale of any franchise under execu- tion must be made in the county in which the corporation has its principal place of business, or in which the property, or some portion thereof, upon which the taxes are paid, is situated. [Amendment approved March 30, 1874; Amend- ments 1873-4, 209. In effect July 1, 1874.] §§ 399-401 EXTENSION, ETC., OP CORPORATIONS. 116 CHArTER IV. EXTENSION AND DISSOLUTION OF CORPORATIONS. § 399. Proceedings to disincorporate. § 400. On Gissoiution, dirt-ctors to he trustees for creditors. § 401. Any corporation may extend its corporate existence, how. § 402. How corporations may continue their existence. (Re- pealed.) § 403. Title I. to apply to all corporations with certain ex- ceptions. § 399. The dissolution of corporations is pro- vided for: 1. If invoUintarj^— in Chapter V. of Title X., Part II., of the Code of Civil Procedure. See Code Civ. Proc, sees. 802, 227. 2. If voluntary— In Title VI., Part III., of the Code of Civil Procedure. [Sees. 1227-1233.] Act providing for dissolution of savings banks, trust companies and banlis of deposit: See post, Appendix, p. 721. § 400. Unless other persons are appointed by the court, the directors or managers of the affairs of such corporation at the time of its dissolution are trustees of the creditors and stoclcliolders or members of the corporation dissolved, and have full power to settle the affairs of the corporation. § 401. Every corporation formed for a period less than fifty years may, at any time prior to the expiration of the term of its corporate existence, extend such term to a period not exceeding fifty years from its formation. Such extension may be made at any meeting of the stoclvholders or mem- bers, called by the directors expressly for consid- ering the subject if voted by stocl^holders repre- senting two-thirds of the capital stock; or by two- U7 EXTENSION, ETC., OF CORPORATIONS. §§ 402, 403 thirds of the members; or may be made upon the written assent of that number of stockholders or members. A certificate of the proceedings of the meeting upon such vote, or upon such assent, shall be signed by the chairman and secretary of the meeting and a majority of the directors, and be filed in the office of the county clerk, where the original articles of incorporation were filed, aad a certified copy thereof in the office of the secre- tary of state, and thereupon the term of the corpo- ration shall be extended for the specified period. [Amendment approved March 30, 1874; Amend- ments 1873-4, 209. In effect July 1, 1874.] § 402. Repealed by act approved March 30, 1874; Amendments 1S73-4, 209. In effect July 1, 1874.] § 403. The provisions of this title are applica- ble to every corporation, unless such corporation is excepted from its operation, or unless a special provision is made in relation thereto inconsistent with some provision in this title, in which case the special provision prevails. See Act of April 1, 1872, requiring Foreign Cor- porations to designate Resident upon whom Pro- cess may be served, post, Appendix, p. 764. §§ 414, 415 INSURANCE CORPORATIONS. 118 TITLE II. INSURANCE CORPORATIONS. Chapter I. General Provisions, §§ 414-419. II. Fire and Marine Insurance Corpora- tions, §§ 424-430. III. Mutual Life, Health, and Accident In- surance Corporations, §§ 437-458. CHAPTER I. GENERAL PROVISIONS. § 414. Subscriptions to capital stock opened, and how col- lected. § 415. Purchase and conveyance of real estate. § 416. Policies, how issued and by whom signed. § 417. Diviacnds, of what and when declared. § 418. Directors liable for loss on insurance in certain cases. § 419. Capital to be at least two hundred thousand dollars. § 420. Exception, capital of one hundred thousand dollars. § 414. Alter the Secretary of State issues the certiticate of incorporation, as provided in Article I., Chapter I., Title I., of this part, the directors named in the articles of incorporation must pro- ceed in the manner specitied, or in their by-laws, or if none, then in such manner as they may by order adopt, to open boolis of subscription to the capital stoclv then unsubscribed, and to secure subscriptions to the full amount of the fixed capi- tal; to levy assessments and installments thereon, and to collect the same, as in Chapter II. of Title I. provided. Insurance in general: See post, sees. 2527-27G6. § 415. No insurance corporation must purchase, hold, or convey real estate, except as hereinafter set forth, to-wit: 1. Such as is requisite for its accommodation in the convenient transaction of its business, not ex- ceeding in value one hundred and fifty thousand dollars; U9 INSURANCE CORPORATIONS. §§ 416, 417 2. Such as is conveyed to it, or to any person for it, by way of mortgage or in trust, or otherwise, to h^ecure or provide for the payment of loans pre- viously contracted, or for moneys due; 3. Such as is purchased at sales upon deeds of trust or judgments obtained or made for such loans or debts: 4. Such as is conveyed to it in satisfaction of debts previously contracted in the course of its dealings. All such real estate so acquired, which is not re- quisite for the accommodation of such corporation in the transaction of its business, must be sold and disposed of within five years after such cor- poration acquired title to the same. No such real estate must be held for a longer period than five years, unless the corporation first procures a cer- tificate from the insurance commissioner that the interest of the corporation will suffer materially by a forced sale of such real estate, in which event the time for the sale may be extended to such time as the insurance commissioner directs in the certificate. § 416. All policies made by insurance corpora- tions must be subscribed by the president or vice president, or in case of the death, absence, or dis- ability of those officers, by any two of the direc- tors, and countersigned by the secretary of the corporation. All such policies are as binding and obligatory upon the corporation as if executed over the corporate seal. § 417. The directors of every insurance corpo- ration, at such times as their by-laws provide, must make, declare, and pay to the stocl^holders dividends of so much of the net profits of the corporate business and interest on capital invested as to them appears advisable; but the moneys re- ceived and notes taken for premium on risks which §§ 418, 419 INSURANCE CORPORATIONS. 120 are undetermined and outstanding at the time of making the dividend must not be treated as prof- its, nor divided, except as provided in Chapter II. of this title. Declaring dividends: See ante, sec. 309. § 418. If any insurance corporation is under liabilities for losses to an amount equal to its cap- ital stock, and the president or directors, after knowing the same, make any new or further in- surance, the estates of all who make such insur- ance, or assent thereto, are severally and jointly liable for the amount of any loss which takes place under such insurance. § 419. Every company, corporation, or associa- tion hereafter formed or organized under the laws of this State for the transaction of business in fire, marine, inland navigation, or life insurance, must have a subscribed capital stock equal to at least two hundred thousand dollars, twenty-five per cent of which must be paid in previous to the is- suance of any policy, and the residue within twelve months from the day of filing the certifi- cate of incorporation. No person, corporation, or association organized or formed under the laws of any otlier State or country, as a stock company, must transact any such insurance business in this State, unless such person, corporation, or associa- tion has a paid-up capital stock equal to at least two hundred thousand dollars in available cash assets, over and above all liabilities for losses re- ported, expenses, taxes, and reinsurance of all out- standing risks, as provided in section six hundred and two of the Political Code of this State. Nor must any person, corporation, or association, or- ganized or formed under the laws of any other State or country as a mutual insurance company, transact any such insurance business In this State, unless such person, corporation, or association 121 INS'URAXCE CORPORATIONS. § 420 possesses available cash assets equal to at least t.vro himdred thousand dollars, over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided In said section six hundred and two of the Politi- cal Code of this State. [Amendment approved April 1, 1878: Amendments 1877-8, 80. In effect April 1, 1878.] § 420. Every company, corporation, or associa- tion, hereafter formed or organized under the laT\'s of this State for the transaction of business in any kind of insurance not enumerated in sec- tion four hundred and nineteen of the Civil Code must have a subscribed capital stock equal to at least one hundred thousand dollars, which must be paid in at the times and in the manner pre- scribed for the payment of the capital stock of a corporation organized under section four hundred and nineteen of said Civil Code. No company, corporation, or association, formed or organized under the laws of any other State or country as a stock company, must transact any such insurance business iu this State without a paid-up capital stock of not less than one hundred thousand dol- lars in available cash assets, over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided in section six hundred and two of the Political Code of this State. Nor must any company, cor- poration, or association, formed or organized un- der the laM's of any other State or country as a mutual insurance company, transact any such in- surance business in this State unless such com- pany, corporation, or association possesses avail- able cash assets equal to at least one :mndred thousand dollars over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided in said sec- Civ. Code— U S§ 424, 425 INSURANCE CORPORATIONS. 122 tion six hundred and two of the Political Code of this State. [New section approved April 1, 1878; Amendments 1877-8, SO. In effect April 1, 1878.] CHAPTER II. FIRE AND MARINE INSURANCE CORPORATIONS. § 424. Payment of subscriptions. Capital to be all paid in twelve months. § 425. Certificate of capital stock paid up to be filed, and when. § 426. Property which may be insured, f 427. Funds may be invested, how. § 428. Rate of risk. § 4^9. Amounts to be reserved before making dividends. § 430. Reservation by companies with less than $200,000 capit':-!. § 431. Amounts to be reserved by life insurance companies. § 432. Corporations for insuring titles to real estate. § 424. The entire capital stock of every fire or marine insurance corporation must be paid up in cash within twelve months from the filing of the articles of incorporation, and no poMcy of insur- ance must be issued or rislv talvcn until twenty- five per cent of the whole capital stocli is paid up. Fire insurance: See post, sees. 2752 et seq. Marine insurance: See post, sees. 2655 et seq. County fire insurance companies, act providing for: See post. Appendix, p. 787. § 425. The president and a majority of the di- rectors must within thirty days after the pay- ment of the twenty-five per cent of the capital stock, and also within thirty days after the pay- ment of the last installment or assessment of the capital stock limited and fixed, prepare, subscribe, and swear to a certificate setting forth the amount of the fixed capital and the amount thereof paid up at the times respectively in this section named, and file the same in the ofiice of the county clerk of the county where the principal place of busi- ness of the corporation is located, and a duplicate 123 INSURANCE CORPORATIONS. §§ 426, 427 thereof, similarly exec-iited, with the insurance commissioner. § 426. Every corporation formed for fire or ma- rine insurance, or both, may make insurance on all insurable interests within the scope of its arti- cles of incorporation, and may cause itself to bo reinsured. Insurable interest defined: See sec. 2546, post. § 427. Corporations organized subsequent to April first, eighteen hundred and seventy-eight, under the laws of tliis State, for the transaction of business in any Ivind of insurance, may invest their capital and accumulations in the following named securities: 1. In tlie purchase of or loans upon interest- bearing bonds of the United States Government. 2. In the purchase of or loans upon interest- bearing bonds of any of the States of the United States, not in default for interest on such bonds. 3. In the purchase of or loans upon interest- bearing bonds of any of the counties and incorpo- rated cities and towns of the States of California and Oregon, not in default of interest on such bonds. 4. In loans upon unincumbered real property, worth at least one hundred per cent more than the amount loaned; or upon merchandise or cereals in Avarehouse, but in no instance shall such loan be made in excess of seventy-five per cent of the security talcen. 5. Corporations engaged in the business of in- suring titles to real estate may, after the invest- ment of one hundred thousand (100,000) dollars in the manner provided for in subdivisions one, two, three, and four of this section, invest an amount not exceeding fifty per cent of their subscribed i| capital stock in the preparation or purchase of the i'l materials or plant necessary to enable them to en- el gage in such business; and such materials or § 428 INSURANCE CORPORATIONS. 124 plant shall be deemed an asset, valued at the actual cost thereof, in all statements and proceed- ings required by law for the ascertainment and determination of tlie condition of such corpora- tions. 6. Corporations organized for and engaged in the business of fire and marine insurance may, after the investment of two hundred thousand (200,000) dollars, in tlie manner provided in sub- divisions one, two, three, and four of this section, invest the balance of their capital, and any ac- cumulations, in interest-bearing first mortgage bonds of any corporations (except mining com- panies), not in default of interest, organized and carrying on business under the laws of any State of the United States; provided, that a two-thirds vote of all the directors of such corporations shall approve such investment. It shall be the duty of the officers of such corporation to report quarterly, on the first days of January, April, July, and Oc- tober of each year, to the Insurance Commissioner, a list of such investments so made by them; and the Insurance Commissioner may, if such invest- ments, or any of them, seem injudicious to him, require the sale of the same. But no investment in the securities named in subdivisions one, two, three, and six of this section, must be made in an amount exceeding the raarlcet value of such securities at the dnte of such investment. [Ap- proved March 5, 1887; Stats. 1887, p. 22. In effect immediately.] § 428. Fire and marine insurance corporations must never tal^e, on any one rislv, whether it is a marine insurance or an insurance against fire, a sum exceeding one tenth part of their capital actu- ally paid in, and intact at the time of talking such rislv, without reinsuring the excess above one tenth. [Amendment approved March 30, 1874; Amendments 1873-4, 210. In effect July 1, 1874.] 125 INSURANCE CORPORATIONS. §§ 429, 430 § 429. No corporation forraed subsequent to April first, eighteen hundred and seventy-eight, under the laws of this State, and transacting tire, marine, inland navigation insurance business, or insurance provided for by section four hundred and twenty (420) of this Code, except insurance of the title to real property, must make any dividends except from profits remaining on hand after re- taining unimpaired: 1. The entire subscribed capital stock. 2. All the premiums received or receivable on outstanding marine or inland risks, except marine time risks. ■ 3. A fund equal to one half of the amount of all premiums on all other risks not terminated at the time of making such dividend. 4. A sum sufficient to pay all losses reported or in course of settlement, and all liabilities for ex- penses and taxes. [Amendment approved March 5, 1887; Stats. 1887, p. 23. In effect immediately.] Declaring dividends generally: See ante, sec. 300. See also ante, sec. 417, as to declaring divi- dends by insurance companies generally. § 430. No fire or marine insurnnce corporation, with a subscribed capital of less than two hundred thousand dollars, must declare any dividends, ex- ce])t from profits remaining on hand after reserv- ing: 1. A sum necessary to form, with the subscribed capital stock, the aggregate sum of two hundred thousand dollars; 2. All the premiums received or receivable on outstanding marine or inland risks, except marine time risks; 3. A fund equal to one half the amount of all premiums on fire risks and marine time risks not terminated at the time of making such dividend; 4. A sum sufficient to pay all losses reported or §§ 431, 432 INSURANCE CORPORATIONS. 123 in course of settlement, and all liabilities for ex- penses and taxes. Act conferring- power to establish fire patrol: See post, Appendix, p. 766. § 431. No corporation formed under the laws of this State, and transacting life insurance busi- ness, must make any dividends, except from prof- its remaining on hand after retaining unimpaired: 1. The entire capital stock; 2. A sum sufficient to pay all losses reported or in course of settlement, and all liabilities for ex- penses and taxes; 3. A sum sufficient to reinsure all outstanding policies as ascertained and determined upon the basis of the American experience table of mor- tality, and interest at the rate of four and one half per cent per annum. [New section afDproved April 1, 1878; Amendments 1877-8, 81. In effect April 1, 1878.] Life and health insurance: See post, sees. 2762 et seq. § 432. Corporations transacting business in in- suring titles to real estate shall annually set apart a sum equal to twenty-five per cent of their pre- miums collected during the year, which sum shall be allowed to accumulate until a fund shall have been created amounting to ten per cent of the sub- scribed capital stock. Such fund shall be main- tained as a further security to policy holders, and shall be known as the surplus fund; and if at any time such fund shall be impaired by reason of a loss, the amount by which it may be impaired shall be restored in the manner hereinabove pro- vided for its accumulation. The reporting of a loss shall be deemed an impairment of such fund for the purposes of this section. Such corporal ion must not make any dividends except from profits re- maining on hand after retaining unimpaired: 1. The entire subscribed capital stock; 127 INSURANCE CORPORATIONS. § 437 2. The amount owing to the surplus fund, un- der the provisions of this section; 3. A sum sufficient to pay all losses reported, or in course of settlement, which shall be in excess of the surplus fund, and all liabilities for ex- penses and taxes. [Amendment approved March 5, 1887; Stats. 1887, p. 23. In effect immediately.] CHAPTER III. MUTUAL LIFE, HEALTH, AND ACCIDENT INSURANCE CORPORATIONS. § 437. Capital stock. Guarartee fund. § 438. Of what guarantee fund .shall consist. § 439. What constitutes, and deficiency in fixed capital. § 440. Declaration of fixed capital to be filed. § 441. Guarantee notes and interest, how disposed of. § 442. Insured to be entitled to vote, when. § 443. May invest in what securities. § 444. Numb' r of directors may be altered, how. § 445. Limitations to the holding cf stock and in other par- ticulars may be provided for iu by-laws. § 446. Premiums, how payable. § 447. Valuation of policies outstanding, when; how esti- mated. § 448. No stamp required on accident insurance contract. § 449. Valuation of policies, retaliatory provisions. § 450. Policy to contain what evidence. § 451. Fraternal societies exempt from insurance laws. § 452. Policies continued in force. § 437. Every corporation formed for the pur- pose of mutual insurance on the lives or health of persons, or against accidents to persons for life or any fixed period of time, or to purchase and sell annuities, must have a capital stock of not less than one hundred thousand dollars. It must not make any insurance upon any risk or transact any other business as a corporation until its capital stock is fully paid up in cash, nor until it has also obtained a fund, to be known as a "guarantee fund," of not less than two hundred and fifty thousand dollars, as is hereinafter provided. If § 438 INSURANCE CORPORATIONS. 128 more than the requisite amount is subscribed, the stocli must be distributed pro rata among the sub- scribers. Any subscription may be rejected by the board of directors or the committee thereof, either as to the whole or any part thereof, and must be, so far as rejected, without effect. Act rehiting to life, health, accident and annuity or endowment insurance: See post, Appendix, 784. Incorporation of mutual insurance companies: See post. Appendix, 785. § 438. The guarantee fund mentioned in the preceding section must consist of the promissory notes of solvent parties, approved by the board of directors and by each other, payable to the corpo- ration or its order, and at such times, in such modes, and in such sums, with or without interest, and conformable in all other respects to such re- quirements as the board of directors prescribe; but Lhe amount of the notes given by any one per- son must not exceed in the whole the sum of five thousand dollars, exclusive of interest. Such notes must be payable absolutely and at the option of the corporation; they must be negotiable, and may be indorsed and transferred, or converted into cash, or otherwise dealt with by the corporation, at its discretion, without reference to any contin- gency of losses or expenses. Such notes, or the proceeds thereof, must remain with the corpora- tion as a fund for the better security of persons dealing with it, and constitute the assets of the corporation, liable for all its debts, obligations, and indebtedness next after its assets from pre- miums and other sources, exclusive of capital stocli, until the net earnings, over and above its expenses, losses, and liabilities, shall have accu- mulated in cash, or securities in which the net earnings have been invested, to a sum which, with 129 INSURANCE CORPORATIONS. §§ 439, MO the capital stock, is equal to the aggregate of the original amounts of the guarantee fund and of the capital stock. § 439. The sum accumulated as provided in the preceding section, together with the capital stock, shall become and remain the fixed capital of the corporation, not subject to division among the stockholders or parties dealing with it, or to be expended in any manner otherwise than may be required in payment of the corporation's debts and actual expenses, until the business of the corpora- tion is closed, its debts paid, and its outstanding policies and obligations of every kind canceled or provided for; and if from any cause a deficiency at any time occurs in such fixed capital, no further division of profits must take place until such de- ficiency has been made up. § 440. Whenever the fixed capital of the cor- poration is obtained as hereinbefore provided, the president of the corporation and its actuary, or its secretary, if there is no actuary, must make a declaration in writing, sworn to before some no- tary public, of the amount of such fixed capital, and of the particular kinds of property compos- ing the same, with the nature and amount of each kind, which must be filed with the original arti- cles of incorporation, and a copy, certified by the county clerk, must be published for at least four successive weeks, in a newspaper published in the county where the principal business of the corpo- ration is situated. Upon the filing of such declar- ation the guarantee fund is discharged of its obli- gations, and all notes of the fund remaining in the control of the corporation, and not affected by any lien thereon, or claim of that nature, must be surrendered by it to the makers thereof, re- spectively, or other parties entitled to receive the same. §§ 441, 442 INSURANCE CORPORATIONS. 130 § 441. Until the guarantee fund is disc-barged from its obligations, as provided in the preceding section, no note must be withdrawn from the fund, unless another note of equal solvency is substi- tuted therefor, with the approval of the board of directors. The corporation must allow a commis- sion, not exceeding five per cent, per annum, on all su<'h guarantee notes while outstanding, and also interest on all moneys paid on such notes by the parties liable thereon, at the rate of twelve per cent per annum, payable half yearly until repaid by the corporation, unless the current rate of inter- est is ditferent from this amount, in which case the rate payable may, from time to time, at inter- vals of not less than one year, be increased or re- duced by the board of directors, so as to conform to tlie current rate. [Amendment approved March 30, 1874; Amendments 187o-4, 210. In effect July 1, 1874.] § 442. After the filing of the declaration of the fixed capital, as in this article provided, the hold- ers of policies of life insurance for the term of life, on Avhich the premiums are not in default, may vote at tlie election of directors, and have one vote for each one thousand dollars insured by their policies, respectively. § 443. The number of directors specified in the articles of incorporation may be altered from time to tiiue during the existence of the corporation by resolution, at the annual meeting of a majority of those entitled to vote at the election of directors, but the number must never be reduced below five. § 444. Life, health, and accident insurance cor- porations may invest their capital stocli as fol- lows: 1. In loans upon unincumbered and improved real property within the State of California, which 131 INSURANCE CORPORATIONS. §§ 443, 445 shall be worth at the time of the investment at least forty per cent more than the sum loaned; 2. In the purchase of or loans upon interest- bearing bonds, and other securities of the United States and of the State of California; 3. In the purchase of or loans upon interest- bearing bonds of any of the other states of the union, or of any county, or incorporated citj^ or city and county in the state of California; 4. In the purchase of loans upon any stocl^s of corporations formed under the laws of tliis state, except of mining corporations, which shall have, at the time of the investment, a value, in the city and county of San Francisco, of not less than sixty per cent of their par value, and shall be rated as hrst-class securities; but no loans shall be made on any securities specified in subdivisions three and four of this section, in any amount beyond sixty per cent of the marliet value of the securi- ties, nor shall any loan be made on the stock of the corporation, or notes or other obligations of its corporators. [Amendment approved March 80, 1874; Amendments 1873-4, 211. In effect July 1, 1874.] § 445. The corporation may, by its by-laws, limit the number of shares which may be held by any one person, and make such other provisions for the protection of the stockliolders and the bet- ter security of those dealing with it as to a ma- jority of the stockholders may seem proper, not inconsistent with the provisions of this title or part. § 446. All premiums must be payable wholly in cash, or one half or a greater proportion in cash, and the remainder in promissory notes bear- ing interest, as may be provided for by the by- laws. Agreements and policies of insurance made §§ 446, 447 INSURANCE CORPORATIONS. 132 by the corporation may be upon the basis of full or partial participation in the profits, or without any participation therein, as may be provided by the by-laws and agreed between the parties. § 447. Every life insurance corporation organ- ized under the laws of this state must, on or be- fore the first day of February of each year, fur- nisli the insurance commissioner the necessary data for determining the valuation of all its poli- cies outstanding on the thirty-first day of Decem- ber then next preceding. And every life insur- ance company organized under the laws of any other State or country, and doing business in this State, must, upon the written requisition of the commissioner, furnish him, at such time as he may designate, the requisite data for determining the valuation of all of its policies then outstand- ing. Such valuations must be based upon the rate of mortality established by the American experi- ence life-table and interest at four and one-half per cent per annum; provided, that from and after the thirty-first day of December, A. D. one thous- and eight hundred and ninety-one, such valua- tions must be based upon the rate of mortality established by the combined experience or actu- aries' table of mortality, with interest at the rate of four per cent per annum. When the laws of any other State of territory require of a life in- surance company organized under the laws of this State a valuation of its outstanding policies by any standard of valuation different from that named in this section, the insurance commissioner is hereby authorized to malje such valuation for use in such other State or territory, and to issue his certificate in accordance therewith. For the pur- pose of making the valuations, the insurance com- missioner is authorized to employ a competent actuary, whose compensation for such valuations 133 INSURANCE! CORPORATIONS. §§ 448-450 shall be three cents for each thousand dollars of insurance; to be paid by the respective companies whose policies are thus valued. [Amendment ap- proved February 25, 1889; Stats. 1889, p. 35.] § 448. No stamp is required nor stamp duty ex- acted on any contract of insurance, when such contract insures against accident which may re- sult In injury or death. See Act of March 28, 1874, Relative to Mutual Beneficial and Relief Associations, Appendix, p. 723. § 449. When the certificate of the insurance commissioner of this state, of the valuation of the policies of a life insurance company, as provided in section four hundred and forty-seven of the Civil Code of this state, issued to any company or- ganized under the laws of this state, shall not be accepted by the insurance authorities of any other state, in lieu of a valuation of the same, by the insurance officer of such other state, then every company organized under the laws of such other state doing business in this state, shall be required to have a separate valuation of its policies made under the authority of the insurance commissioner of this state, as provided in section four hundred and forty-seven of the Civil Code. [New section approved March 30, 1874; Amendments 1873-4, p. 207. In effect in sixty days from passage.] § 450. Every contract or policy of Insurance hereafter made by any person or corporation or- ganized under the laws of this state, or under those of any other state or country, with and upon the life of a resident of this state, and delivered within this state, shall contain, unless specifically contracted between the insurer and the insured for tontine insurance, or for other term or paid-up Civ. Code— 12 § 450 INSURANCE CORPORATIONS. 134 insurance, a stipulation that wlien, after three full annual premiums shall have been paid on such policy, it shall cease or become void solely by the nonpayment of any premium when due, its entire net reserve, by the American experience mortality, and interest at four and one-half per cent yearly, less any indebtedness to the company on such pol- icy, shall be applied by such company as a single premium, at such company's published rates in force at the date of original policy, but at the age of the insured at time of lapse, either to the pur- chase of nonparticipating term insurance for the full amount insured by such policy, or upon the written application by the owner of such policy, and the surrender thereof to such company within three months from such nonpayment of premium, to the purchase of a nonparticipating paid-up pol- icy, payable at the time the original policy would be payable if continued in force; both Idnds of in- surance to be subject to the same conditions, ex- cept as to payment of premiums, as those of the original policy. It may be provided, however, in such stipulation, that no part of such term insur- ance shall be due or payable, unless satisfactory proofs of death be furnished to the insuring com- pany within one year after death, and that if death shall occur within three years after such nonpayment of premium, and during such term of insurance, there shall be deducted from the amount payable the sum of all the premiums that would have become due on the original policy if it had continued in force. If the reserve on endow- ment policies be more than enough to purchase temporary insurance, as aforesaid, to the end of the endowment term, the excess shall be applied to the purchase of pure endowment insurance, pay- able at the end of the term, if the insured be then living. If any life insurance corporation or com- pany shall deliver to any person in this state a 135 INSURANCE CORPORATIONS. §§ 451, 452 policy of insurance upon the life of any person re- siding in this state, not in conformity with the provisions of Ibis section, the right of such cor- poration or company to transact business in this state shall tiiereupon and thereby cease and ter- minate, and the insurance commissioner shall im- mediately revoke the certificate of such corpora- tion or company authorizing it to do business in this slate, and publish such revocation, daily, for the period of two weelis, in two daily newspapers, one published in the city of San Francisco and the otlier in the city of Sacramento. [Amendment ap- proved April 2G, ISSO; Amendments (to Polit. Code) ISSO. 01. In effect in sixty days; repealed con- flicting acts.] § 451. All associations or secret orders, and other benevolent or fraternal co-operative socie- ties, incorporated or organized for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to its meuibers, or to the family, of deceased mem- bers, and not for profit, are declared n^t to be in- surance companies in the sense and meaning of the insurance laws of this state, and are exempt from the provisions of all existing insurance laws of this state. [New section approved March 23, 1885; Stats. 1885, 221.] § 452. [Eepealed April 26, 1880; Amendments 18S0, \)2. In effect in sixty days.] §§ 454-456 RAILROAD CORPORATIONS. 136 TITLE III. RAILROAD CORPORATIONS. Chapter I. Officers and Corporate Stock, §§ 454- 459. II. Enumeration of Powers, §§ 465-478. III. Business, how Conducted, §§ 479-491. CHAPTER I. OFFICERS AND CORPORATE STOCK. § 454. Directors to bo elected, when. § 455. Additional provisions in assessment and transfer of stock. § 456. Corporations may borrow money and issue bonds. Limitation of amount. § 457. To provide a sinking fund to pay bonds. § 458. Capital stock to be fixed. § 459. Certificate of payment of fixed capital stock. § 454. Directors of railroad corporations may be elected at a meeting of the stocliholders other than the annual meeting as a majoritj^ of the fixed capital stock may determine, or as the bj'-laws may provide; notice thereof to be given as pro- vided for notices of meetings to adopt by-laws in Article II., Chapter I., Title I., of this part. § 455. No stock in any railroad corporation is transferable until all the previous calls or install- ments thereon have been fully paid in; nor is any such transfer valid, except as between the par- ties thereto, unless at least twenty per cent has been paid thereon and certificates issued therefor, and the transfer approved hj the board of direc- tors. § 456. Railroad corporations may borrow, on the credit of the corporation, and under such regu- 137 RAILROAD CORPORATIONS. § 457 lations and restrictions as the board of directors thereof, by unanimous concurrence, may impose, such sums of money as may be necessary for con- struct ino; and completing- their railroad, with its equipment, and for the purchase of all necessary rolling- stock and all else relative thereto, and may issue promissory notes therefor, or may is- sue and dispose of bonds to raise moneys neces- sary to pay therefor, in denominations of not less than five hundred dollars, at a rate of interest not exceeding ten per cent per annum; and may also issue bonds, or promissory notes, of the same denomination and rate of interest in pay- ment of any debts or contracts for constructing and completing their road, with its equipment and rolling stock, and all else relative thereto, and for the purchase of railroads and other prop- erty within the purposes of the corporation. The amount of bonds, or promissory notes, issued for such purposes, must not exceed in all the amount of their capital stock; and to secure the pay- ment of such bonds, or notes, they may mort- gage their corporate property and franchises, or may secure the payment of such bonds or note» by deed of trust of their corporate property and franchises. Any person or corporation formed under the laws of this State, or of any other State within the United States, that the directors of the railroad corporation may, by unanimous concurrence, select, may be trustees in such deed of trust. [Approved ^iarch I), lb\)~i; Stats. 1807, c. 71). J Debt exceeding available means: See Penal Code, § 5G6. § 457. The directors must provide a sinking fund, to be specially applied to the redemption of such bonds on or before their maturity, and may §§ 458, 459 RAILROAD CORPORATIONS. 138 also confer on any holder of anj^ bond or note so issned, for money borrowed or in payment of any debtorcontractfor the construction and equipment of such road, the rigiit to convert the principal due or owing- thereon into stoclv of such corporation, at any time within eight years from the date of such bonds, under such regulations as the directors may adopt. § 458. When, at any time after filing the arti- cles of incorporation, it is ascertained that the capital stock therein set out is either more or less than actually required for constructing, equipping, operating, and maintaining the road, by a two- third vote of the stocl^liolders the capital stock must be fixed, and a certificate thereof, and of the proceedings had to fix the same, must be made out and filed in the office of the Secretary of State. § 459. Within thirty days after the payment of the last installment of the fixed capital stock of any railroad corporation organized under this title and part, the president and secretary, and a ma- jority of the directors thereof, must make, sub- scribe, and file in the office of the Secretary of State a certificate stating the amount of the fixed capital stock, and that the wliole thereof has been paid in. The certificate must be verified by the affidavit of tlie president and secretary. 139 RAILROAD CORPORATIONS. § 465 CHAPTER II. ENUMERATION OF POWERS. § 465. Enumeration of powers: 1. To survey road; 2. May accept real estate; 3. May acquire rral estate; 4. Lay out read, hew wide; 5. \\ nere may construct road; 6. May crrss or connect roads; 7. May purchase land, timber, stone, gravel, &c. ; 8. Carry persons and freight; 9. Erect necesf^ary buildings; 10. Reeulate time and freights, subject to legisla- tion; 11. Regulate force and speed. § 466. Map and profile to be filed. § 467. May change line of road. § 4P8. Foifpiture of franchi.-e. § 469. Crossings and intersections. Condemnation. § 470. Not to use streets, alleys, or water in citi-^s or towns, except by a two-third vote of the city or town ?uthoriti-s. § 471. Railroads through cities not to charge fare to and from points therein. § 472. When crossing railroads or highways, how other lands are acquired. § 473. Corporal ions may consolidate. Publication of no- tice. Cony to bo filed. § 474. State lards granted for use of corporations. § 47.5. Grant not to embrace town lots. § 476. Wood, stone, and earth may be taken from State lands. § 477. Lands to revert to State, wh^n. § 478. Selections made, how proved and certified to. § 465. Every railroad corporation has power: 1. To cause such examination and surveys to be made as may be necessary to the selection of the most advanta. aeons route for the railroad; and for such purposes their officers, aji-ents, and employees may enter upon the lands or waters of any person, subject to liability for all damages which they do thereto; 2. To receive, hold, take, and convey, by deed § 465 RAILROAD CORPORATIONS. 140 or otherwise, as a natural person, sncli Yolnntary grants and donations of real estate and otiier i)rop- erty which may be made to it to aid and encour- age the construction, maintenance, and accommo- dation of such railroad; 3. To purcliase, or by voluntary grants or dona- tions to receive, enter, talie possession of, hold, and use all such real estate and other property as may be absolutely necessary for the construction and maintenance of such railroad, and for all sta- tions, depots, and other purposes necessary to suc- cessfully worli and conduct the business of the road ; 4. To lay out its road, not exceeding nine rods wide, and to construct and maintain the same, witli a single or double track, and with such ap- pendages and adjtincts as maj' be necessary for the convenient use of the same; 5. To construct their road across, along, or upon any stream of water, watercourse, roadstead, bay, navigable stream, street, avenue, or higliway, or across anj' railway, canal, ditch, or flume which the route of its road intersects, crosses or runs along, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road, street, avenue, highway, railroad, canal, ditch, or flume dius in- tersected to its former state of usefulness, as near as may be, or so that the raih'oad shall not un- necessarily impair its usefulness or injure its fran- chise; 6. To cross, intersect, join, or unite its railroad with any other railroad, either before or after con- struction, at any point upon its route, and upon the grounds of such other railroad corporation, wnth the necessary turnouts, sidings, and switclies, and otlier conveniences in furtherance of the ob- jects of its connections; and every corporation whose railroad is, or shall be hereafter, intersected Ifl RAILROAD CORPORATIONS. § 465 hy any new railroad, sball unite with the owners of such new railroad in forminor such intersections and connections, and grant facilities therefor; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points or the manner of such crossings, inter- sections, and connections, the same shall be ascer- tained and determined as is provided in Title VII., Part III., Code of Civil Procedure [Sees. 1237- 1263] ; 7. To purchase lands, timber, stone, gravel, or other materials, to be used in the construction and maintenance of its road, and all necessary append- ages and adjuncts, or acquire them in the mnnner provided in Title VII., Part III., Code of Civil Pro- cedure, for the condemnation of lands; and to change the line of its road, in whole or in part. whenever a majority of the directors so determine, as is provided hereinafter; but no such change must var3' tlie general route of such road, as con- templated in its articles of incorporation: 8. To carry persons and property on their rail- road, and receive tolls or compensation therefor; 9. To erect and maintain all necessary and con- venient buildings, stations, depots, fixtures, and machinery for the accommodation and use of their passengers, freight, and business; 10. To regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor witliin the limits prescribed by law and subject to alteration, change, or amendment by the legis- lature at any time; 11. To regulate the force and speed of their locomotives, cars, trains, or other machinery used and en)]doyed on their road, and to establish, exe- cute, and enforce all needful and proper rules and regulations for the management of its business transactions usual and proper for railroad corpo- rations. §§ 46G, 467 RAILROAD CORPORATIONS. 142 Exceeding limit upon power to acquire realty: See ante, sec. 3G0. Eminent domain: See tlie subject discussed in Code Civ. Proc, sees. 1237-1203. Subd. 8. Ptates of charges: See post, sec. 489. Eslablisliment of rates by railroad commissioners: See Const. Cnl., art. 12, sec. 22. Subd. 10. Regulating time and manner of trans- portation, time tables of starting: See sec. 481. § 466. Every railroad corporation in this State must, within a reasonable time after its road is finally located, cause to be made a map and profile thereof, and of the land acquired for the use there- of, and the boundaries of the several counties through which the road may run, and tile the same in the otiice of the Secretary of State; and also like maps of the parts thereof located in different counties, and tile the same in the otiice of the cleric of the county in M'hich such parts of the road are, there to remain of record forever. The maps and profiles must be certified by the chief engineer, the acting president and secretary of such company, and copies of the same, so certified and filed, be kept in the office of the secretary of the corporation, subject to examination by all par- ties interested. § 467. If, at any time after the location of the line of the railroad and the tiling of the maps and profiles thereof, as provided in the preceding sec- tion, it appears that the location can be improved, the directors may, as provided in subdivision 7, section 405, alter or change the same, and cause new maps and profiles to be filed, showing such changes, in the same offices where the originals are of file, and may proceed in the same manner as the original location was acquired, to acquire and take possession of such new line, and must sell or relinquish the lauds owned by them for the 143 RAILROAD CORPORATIONS. §§ 468, 469 original location, within five years after such chaii.ue. No new location as herein provided must be so run as to avoid any points named in their articles of incorporation. Stnts. 1801, p. 621, sec. 34. Oianging location: See sec. 4G5, subd. 7. § 468. Every railroad corporation must within two years after filing its original articles of incor- poration, begin the construction of its road, and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to ex- tend its road beyond the point then completed is forfeited. Stats. ISGl, 62G, sec. 54; 1870, 578. Organizing and commencing work: See general provision, sec. 358, ante. Act enabling railroad companies to complete railroads: See post, Appendix, p. 819. § 469. Whenever the track of one railroad in- tersects or crosses the track of another railroad, whether the same be a street railroad, wliolly within the limits of a city or town, or other rail- road, the rails of either or each road must be so cut and adjusted ns to permit the passage of the cars on each road witli as little obstruction as pos- sible; and, in case tlie persons or corporations own- ing The railroads cannot agree as to the comi)ensa- tion to be made for cutting and adjusting the rails, the condemnation of the right of way over the one for the use of the other road, may be had in pro- ceedings under Title A'll., Part III., Code of Civil Procedure, and the damages assessed and the right of way granted as in other cases. Stats. 18G2, 498. §§ 470-473 RAILROAD CORPORATIONS. 144 Right of eminent domain: Code Civ. Proc, sees. 1237-12G3. Crossings and intersections: See ante, 465, subd. sec. G. § 470. No railroad corporation must use any street, alley, or highway, or any of the land or water, within any incorporated city or town, un- less the right to so use the same is granted by a two-third vote of the town or city authority from which the right must emanate. § 471. [Repealed April 1, 1878; Amendments 1877-S, 84. In effect immediately.] § 472. Whenever the track of such railroad crosses a railroad or highway, such railroad or higliway may be carried under, over, or on a level with the trade, as may be most expedient; and in cases where an embanliment or cutting necessi- tates a change in the line of such railroad or high- way, the corporation may talee such additional lands and material as are necessary for the con- struction of such road or higliway on such new line. If such other necessary lands cannot be had otherwise, they may be condemned as provided in Title VII., Part III., Code of Civil Procedure; and when compensation is made therefor, the same be- comes the property of the corporation. [Sees. 1237- 1203.] Stats. 1SG9, 616, see. 19. § 473. Two or more railroad corporations may consolidate their capital stocls:, debts, property, as- sets, and franchises in such manner as may be agreed upon by their respective boards of direc- tors. No such amalgamation or consolidation must take place without the written consent of the holders of three-fourths in value of all the stock of each corporation; and no such amalgamation or 145 RAILROAD CORPORATIONS. §§ 474-476 consolidation must in any vray relieve such corpo- ration or the stockholders thereof from any and all just liabilities. In case of such amalgama- tion or consolidation, due notice of the same must be given, by advertisement for one month in at least one newspaper in each county, if there be one published therein, into or through which such roads run, and also for the same length of time in one paper published in Sacramento and in two papers published in San Francisco; and when the consolidation and amalgamation is completed, a copy of the new" articles of incorporation must be filed in the office of the Secretary of State. Stats. 1861, 622, sec. 40. § 474. There is granted to every railroad cor- poration the right of way for the location, con- struction, and maintenance of their necessary works, and for every necessary adjunct thereto, over any swamp, overflowed, or other public lands of the State not otherwise disposed of or in use, not in any case exceeding in length or width that which is necessary for the construction of such works and adjuncts, or for the protection thereof, not in any case to exceed two hundred feet in width. § 475. The grants mentioned in the preceding section do not apply to public lands of the State within the corporate limits of towns and cities, or within three miles thereof. § 476. The right to take from any of the lands belonging to the State, adjacent to the works of the corporation, all materials, such as wood, stone. and earth, naturally appurtenant thereto, which maj' be necessary and convenient for the original construction of its works and adjuncts, is granted to such corporations. Civ. Code.— 13. §§ 477, 478 RAILROAD CORPORATIONS. 146 § 477. If any corporation receiving State lauds or appurtenances tliereiinder is dissolved, ceases to exist, is discontinued, or the route or line of its Avorlvs is so changed as not to cover or cross the lands selected, or the use of tlie lands selected is abandoned, such selected lands revert, and the title thereto is reinvested in the State or its gran- tees, free from all such uses. § 478. When any selection of the right of way, or land for an adjunct to the works of a railroad corporation, is made bj' any corporation, the sec- retary thereof must transmit to the Surveyor Gen- eral, Comptroller of State, and recorder of the county in which the selected lands are situate, a plat of the lands so selected giving the extent thereof and uses for which the same is claimed or desired, duly verified to be correct; and, if ap- proved, the surveyor general must so indorse the plat, and issue to the corporation a permit to use the same, unless on petition properly presented to the court, a review is had and such use prohibited. The five preceding sections are drawn from Stats. 1S(51, 017, G18, sees. 20-22. 147 RAILROAD CORPORATIONS. §§ 479, 480 CII AFTER III. BUSINESS, now CONDUCTED. § 479. Checks to be affixed to all baggage. Damages. § 4?0. Annual report to be verified. Forra of report. § 481. Duties of corporation. § 482. Ccrporaticn to pay damages for refusal. § 4S3. Furnish room inside passenger cars, and bo respon- sib'e for damages occuriing on freight and other cais. § 484. Corporaticns to post printed regulations, and not responsible for damages in violation cf rules. § 485. To ray damages. Not liable in certain cases. Cor- poration may recover damages, when. § 486. Regulations cf trains. Penalty. § 487. Passenger refusing to pay fare. § 488. Officers to wear badge. § 489. Rates of charges. § 490. Passenger tickets, how issued, and to be good for six mouths. § 491. Characlt r of iron to be used. § 492 E e a^ed or urder.round rai wr ys. § 49 j. To ipp y to a 1 railro-d compai i s. § 479. A check must be affixed to every pack- age or parcel of baggage when taken for trans- portation by anj' agent or employee of such rail- road corporation, and a duplicate thereof given to the passenger or person delivering the same in his behalf; and if such check is refused ou de- maud, the railroad corporation must pay to such passenger the sum of t went 3' dollars, to be recov- ered in an action for damages; and no fare or toll must be collected or received from such passen- ger, and if such passenger has paid his fare, the same must be returned bj^ the conductor in charge of the train; and on producing the check, if his baggage is not delivered to him by the agent or employee of the railroad corporation, he may re- cover the value thereof from the corporation. § 480. Every railroad corporation must make an annual report to the iSecrctaiy of State, or other officer designated by law, of its operations for §§ 481 RAILROAD CORPORATIONS, 148 each year, ending on the thirty-first day of De- cember, verified by the oaths of the president or acting superintendent of operations, the secretary and treasurer of such corporation, and file it in the office of the Secretary of State, or such other designated officer, by the twentieth day of Feb- ruary, which must state: 1. The capital stock, and the amount thereof actually paid in; 2. The amount expended for the purchase of lands for the construction of the road, for build- ings, and for engines and cars, respectively; 3. The amount and nature of its indebtedness, and the amount due the corporation; 4. The amount received from the transportation of passengers, property, mails, and express mat- ter, and from other sources; 5. The amount of freight, specifying the quan- tity in tons; 6. The amount paid for repairs of engines, cars, buildings, and other expenses, in gross, showing the current expenses of running such road; 7. The number and amount of dividends, and when paid; S. The number of engine-houses and shops, of engines and cars, and their character. § 481. Every such corporation must start and run their cars, for the transportation of persons and property, at such regular times as they sliall fix by public notice, and must furnish sufficient ac- commodations for the transportation of all such passengers and property as, within a reasonable time previous thereto, offer or is offered for trans- portation, at the place of starting, at the junction of other railroads, and at riding and stopping places established for receiving and discharging way passengers and freight; and must take, trans- port, and discharge such passengers and property 149 RAILROAD CORPORATIONS. §§ 482-484 at, from, and to siic-h places, on the due payment of tolls, freight, or fare therefor. Rules and regulations: See sec. 484, post. Act compelling railroads to operate roads: See post. Appendix, p. 821. Act exempting railroad constructed at elevation of five thousand feet from operating roads at cer- tain times: See pcsr, p. 821. Act organizing railroad commissioners and de- fining powers: See post, Appendix, p. 82.3. § 482. In case of refusal by such corporation or their agents so to take and transport any passengers or property or to deliver the same, at the regular appointed places, such corporation must pay to the party aggrieved all damages vrhich are sustained thereby, with costs of suit. § 483. Every railroad corporation must ftir- nish, on the inside of its passenger cars, sufficient room and accommodations for all passengers to ■uiiom ticliets are sold for any one trip, and for all persons presenting tickets entitling them to travel thereon; and when fare is taken for trans- porting passengers on any baggage, wood, gravel, or freight car, the same care must be taken and the same responsibility is assumed by the corpo- ration as for passengers or passenger cars. Accommodations to be furnished: See sec. 481, ante. § 484. Every railroad corporation must have printed and conspicuously posted on the inside of its passenger cars its rules and regulations re- garding fare and conduct of its passengers; and in case any passenger is injured on or from the plat- form of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regu- lations, or in violation of positive verbal instruc- § 485 RAILROAD CORPORATIONS. 150 tions or iujiinctions given to such passenger in person by any officer of the train, the corporation is not responsible for damages for sucli injuries, unless the corporation failed to comply with the provisions of the preceding section. The five preceding sections were drawn from Stats. 18f.>l, 024, (125, sees. 44-40, 48. liules and regulations by carriers of passengers, generally: See post, sec. 2180. § 485. Railroad corporations must make and maintain a good and sufficient fence on either or both sides of their track and property. In case they do not make and maintain such fence, if their engine or cai'S shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic animals a fair mar- ket price for the same, unless it occurred through the neglect or fault of the owner of the animal so killed or maimed. Kailrcad corporations paying to the owner of the land through or along which their road is located an agreed price for making and maintaining such fence, or paying the cost of such fence, with the award of damages allowed for the right of way for such railroad, are relieved and exonerated from all claims for damages aris- ing out of the killing or maiming any animals of persons who thus fail to construct and maintain such fence; and the owners of such animals are responsible for any damages or loss which may ac- crue to such corporation from such animals being upon their railroad track, resulting from the non- construction of such fence, unless it is shown that such loss or damage occurred through the negli- gence or fault of the corporation, its officers, agents, or employees. Stats. 1761, 023, see. 40. i:.] RAILROAD CORPORATIONS. §§ 486-488 § 486. A bell, of at least twenty pounds, wf'iglit, must be placed on each locomotive en- gine, and be rung at a distance of at least eighty lids from the place where the railroad crosses any street, road, or highway, and be kept ringing until it lias crossed such street, road, or highway; or a -team-whistle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the same, under a penalty of one hundred dollars for every neglect, to be paid by the corporation oper- ating the railroad, which may recovered in an action prosecuted by the district attorney of the proper county, for the use of the State. The cor- poration is also liable for all damages sustained by any person, and caused by its locomotives, train, or cars, when the provisions of this section are not complied with. Omitting to ring the bell, a misdemeanor: Pen. Code, sec. 390. § 487. If any passenger refuses to pay his fare, or to exhibit or surrender his ticket, Avhen renson- ably requested so to do, the conductor and em- ployees of the corporation may put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling-house, on stopping the train. lief using to pay fare: See, generally, sees. 2187 et seq., post. § 488. Every conductor, baggage-master, en- gineer, brakeman, or other employee of any rail- road corporation, employed on a passenger train or at stations for passengers, must wear upon his hat or cap, or in some conspicuous place on the breast of his coat, a badge, indicating his office or station, and the initial letters of the name of the corporation by which he is employed. No col- §§ 489 RAILROAD CORPORATIONS. 152 lector or conductor, without such badge, is au- thorized to demand or to receive from any passen- ger any fare, toll, or ticl^et, or exercise any of the powers of his office or station; and no other offi- cer or employee, without such badge, has any au- thority to meddle or interfere Vv'ith any passenger or property. § 489. All railroad corporations must fix and publish their rates of charges for freightage and fares from one depot to another, on their various lines of road in this State, graduated as follows: 1. One rate of charges per mile for a distance of one hundred miles or over; 2. One rate for a distance of seventy-five and less than one hundred miles, charging not exceed- ing ten per cent per mile more than the first rate; 3. One rate for a distance of fifty and less than seventy-five miles, charging not exceeding fifteen per cent per mile more than the first rate; 4. One rate for a distance of twenty-five and less than fifty miles, charging not exceeding twen- ty per cent per mile more than the first rate; 5. One rate for a distance not exceeding twenty- five miles, charging not exceeding twenty-five per cent per mile more than the first rate. But in no case, nor in any class of charges here- inbefore named, shall any railroad corporation charge or receive more than ten cents per mile for each passenger, nor fifteen cents per mile for each ton of freight transported on its road. For every transgression of these limitations the corpo- ration is liable, to the party suffering thereby, treble the entire amount of fare or freightage so charged to such party. In no case is the corpora- tion required to receive less than twenty-five cents for any one lot of freight for any distance. Asking or receiving illegal fare a misdemeanor: Penal Code, sec. 525. 153 RAILROAD CORPORATIONS. §§ 490, 491 "The three preceding sectious are founded on Stats. 18G1, 625, sees. 49-51. The provision fixing grades of charges is in accordance with the stat- utes of the states of Maine, Missouri, Kansas, and others, and frequent suggestions in this State. In Kansas and Missouri, six cents per mile is the maximum charge for passenger fare, and freight- age is graded something lil^e the provisions of this section": Commissioners' note. Rates of charges on street railroads: Sec. 501, post. Power of railroad corporations to charge tolls or compensation: Sec. 405, subd. 8, § 490. Every railroad corporation must pro- vide, and, on being tendered the fare therefor fix- ed as provided in the preceding section, furnish to every person desiring a passage on their passen- ger cars a ticl^et which entitles the purchaser to a ride, and to the accommodations provided on their cars, from the depot or station whei'e the same is purchased to any other depot or station on the line of their road. Every such ticl^et entitles the hold- er thereof to ride on their passenger cars to the station or depot of destination, or any interme- diate station, and from any intermediate station to the depot of destination designated in the ticket, at any time within six months thereafter. Any corporation failing so to provide and furnish tickets, or refusing the passage which the same calls for when sold, must pay to the person so re- fused the sum of two hundred dollars. § 491. All railroads, other than street railroads and those used exclusively for carrying freight or for mining purposes, built by corporations organ- ized under this chapter, must be constructed of the best quality of iron or steel rails, known as T or H rail, or other pattern of equal utility. §§ 492, 493 RAILROAD CORPORATIONS. 154 [Amendment approved March 30, 1874; Amend- ments 1873-4, 212. In effect July 1, 1874.J § 492. The legislative or other body to whom is intrusted Ihe government of the county, city and county, city, or town, under such regulations, restrictions, and limitations, and upon such terms and payment of license tax as the county, city and county, city, or town authority may provide, may grant franchises for the construction of elevated or underground railroad tracivs over, across, or un- der the streets and public highways of any such county, city and county, city, or toAvn, for the term not exceeding fifty years; provided, that be- fore granting such franchise there shall be pre- sented to such legislative or other body a petition signed by the owners of a majority of the lauded property, other than public property, on the line of said elevated portion applied for. [New sec- tion approved March 27, 1895; Stats. 1895, p. 186. In effect immediately.] § 493. This act shall apply to all railroad com- panies heretofore and hereafter incorporated. [New section approved March 27, 1895; Stats. 1895, p. 186. In effect immediately.] 155 STREET RAILROAD CORPORATIONS. § 497 TITLE IV. STREET RAILROAD CORPORATIONS. S 497. Authority to lay street railroad track, how ob- tained. ? 498. Rrstrictions and limitations to the grant of the right of way. § 499. Two corporations may use the same track. i; 500. Crossing tiacks. Obstructions. ^ 501. Rates of fare, speed, &o. § 502. Time allowed for completion of work of laying down track. ? 503. May make further regulations and rules. i' 504. Penalty for overcharging. i 505. To provide and furnish passenger tickets. Penalty. ?■ .'OJ. Trial, proof, and limitation. § 507. City or town to reserve certain rights. i; 508. License to be paid to city or town. ^ 509. Track for grading purposes. § 510. What provisions of Title III are applicable to ftreet railroads. § 511. Title epplicable to natural persons alike with corpo- rations. § 497. Authority to lay railroad trades through tlie streets and public highways of any incorpo- rnted city, city and county, or town, may be ob- tained for a term of years not exceeding fifty, from the trustees, council, or other body to whom is intrusted the government of the city, city and county or toAvn, under such restrictions and limi- tations, and upon such terms and payment of license tax, as the city, city and county, or town authority may provide. In no case must permis- sion be granted to propel cars upon such tracks otherwise than by electricity, horses, mules, or by Mire ropes running under the streets and moved l>y stationary engines, unless for special reasons in this title hereinafter mentioned; provided, how- ever, that such board or body in granting the right, or at any time after the same is granted, to use electricity or any other of said modes, shall § 498 STREET RAILROAD CORPORATIONS. 155 have power to impose such terms, restrictions, and limitations as to the use of streets and the con- struction and mode of operating such electric and other roads as may, by such board or body, be deemed for the public safety or welfare. [Amend- ment approved February 25, 1891; Stats. 1891, p. 12. In effect immediately.] Act relating to sale of franchises: See post. Ap- pendix, p. 814. Act limiting time within wliich franchise may be granted: See post, Appendix, p. 831. Act validating ordinance granting franchise: See post. Appendix, p. 818. Act empowering railroad to use electricity or steam: See post, Appendix, p. 830. Authority to grant street-railroad franchises, here given, is to be construed in connection with the other sections of this title. For example, see sec. 499. § 498. The city or town authorities, in grant- ing the right of way to street railroad corpora- tions, in addition to the restrictions which they are authorized to impose, must require a strict compliance with the following conditions, except in the cases of prismoidal or other elevated rail- ways. In such cases, said railway shall be re- quired to be constructed in such a manner as will present the least obstruction to the freedom of the streets in which it may be erected when allowed by the granting power. First, to construct their traclvs on those portions of streets designated in the ordinance granting the right, which must be, as nearly as possible, in the middle thereof. Sec- ond, to plank, pave, or macadamize the entire length of the street used by their track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush 157 STREET RAILROAD CORPORATIONS. §§ 499-50J with the street, and with good crossings. Third, That the trades must not be more than five feet wide within the rails, and must have a space be- tween them sufficient to allow the cars to pass each other freely. [Amendment approved April :;, 1S7G; Amendments 18T5-G, 77. In effect April 3, 1870.] § 499. Two lines of street railway, operated under different managements, may be permitted to use the same street, each paying an equal por- tion for the construction of the traclvS and appur- tenances used by said railways jointly; but in no ease must two lines of street railway, operated under different managements, occupy and use the same street or tracks for a distance of more than five blocks consecutively. [Amendment approved February 25, 1891; Stats. 1891, p. 13. In effect immediately.] § 500. Any proposed railroad track may be per- mitted to cross any track already constructed, the crossing being made as provided in Chapter II., Ti- tle III, of this part. In laying down the track and preparing therefor, not more than one block must be obstructed at any one time, nor for a longer period than ten working days. See sees. 465 et sea. § 501. The rates of fare on the cars must not exceed ten cents for one fare, for any distance un- der three miles. The cars must be of the most ap- proved construction for comfort and convenience of passengers, and provided with brakes to stop the same, when required. The rate of speed must not be greater than eight miles per hour. A viola- tion of the provisions of this section subjects the corporation to a fine of one hundred dollars for each offense. Civ. Code. -14. I 502 STREET RAILROAD CORPORATIONS. 158 Act limiting- and fixing rates of fares: See post, Appendix, p. 821). Act permitting letter carriers to ride free: See post, Aiipendix. p. 832. Kates of fare for railroad corporations: See sec. 489. See, also, post, Appendix, p. 829. § 502. Work to construct the railroad must be commenced in good faith -within not more than one year from the date of the taldng effect of the ordinance granting the right of way, and said work must be completed within not more tliaa three years after the taking effect of snch ordi- nance; provided, that the governing body of such municipal corporation at the time of granting said right of way shall have the power to fix the time for either the commencing or completion, or both, of said work: not, however, to a time less tnan six months for commencing, and not less than eighteen months for completing the same. A fail- ure to comply with either of the foregoing provi- sions of this section, or with either of the provi- sions of tlie ordinance granting said right of way, works a forfeiture of the right of way, and also of the francliise, unless the uncompleted portion is al>andoned by the person or corporation to whom said rirlit of way is granted, with the consent of tlie authorities granting the right of way, such abandonment and consent to be in writing. The authority granting the right of way sliall have the poAver to grant an extension of time for the completion of said work, if it appear that the work has been commenced within the time fixed, and prosecuted in good faith; but no extension of time shall be granted for the commencement of said work, and shall not be granted for more than one year for the completion of the same. All ex- tensions of time shall be in writing, and made a matter of record in the municipality. Provided I'O STREET RAILROAD CORPORATIONS. §§ 503-505 further, that this Act shall not in any way affect any franchise or right of way granted before its Passage. [Amendment approved February 25, js!>5; Stats. 1895, p. IT. In effect immediately.] 'Fhe three preceding sections are founded on Stats. 1803, 297, sees. 1-5. This section is also bas- ed on Stnts. 1870, 482, sees. 1-6. Forfeiture for failure to commence work, of rail- n ad corporations: iSee sec. 4G8; generally, see sec. G.-.8. § 503. Cities and towns in or through which street railroads run may make such further regu- lations for the government of such street railroads as may be necessary to a full enjoyment of the franchise and the enforcement of the conditions provided herein. v' 504. Any corporation, or agent or employee T^ioreof. demanding or charging a greater sum of money for fare on the cars of such street railroad Tlian that fixed, as provided in this title, forfeits to the person from whom such sum is received, or who is thus overcharged, the sum of two hun- dred dollars, to be recovered in a civil action, in any justice's court having jurisdiction thereof, auainst the corporation. § 505. Every street railroad corporation must provide, and, on request, furnish to all persons de- siring a passage on its cars, any required quantity of passenger tickets or checks, each to be good for one ride. Any corporation failing to provide and furnish tickets or checks to any person desir- ing to purchase the same at not exceeding the rate hereinbefore prescribed, shall forfeit to such pt'rson the sum of two hundred dollars, to be re- • overed as provided in the preceding section, pro- vided, that the provisions of this section shall not apply to such street railroad corporations as §§ 506-508 STREET RAILROAD CORPORATIONS. 130 charge but five cents fare. [Amendment approved March 13, 1883; Stats. 1883, 84. In effect March 13, 1883.] § 506. Upon the trial of an action for any of the sums forfeited, as provided in the two preced- ing sections, proof that the person demanding or receiving the monej^ as fare, or for the sale of the ticket or check, was at the time of making the demand or receiving the money, engaged in an of- fice of the corporation, or vehicle belonging to the corporation, shall be prima facie evi- dence that such person was the agent, servant, or employee of the corporation, to receive the money and give the ticket or check mentioned. [Amend- ment approved March 30, 1874; Amendments 1873-4, 213. In effect July 1, 1874.] § 507. In every grant to construct street rail- roads, the right to grade, sewer, pave, macadam- ize, or otherwise improve, alter, or repair the streets or highways, is reserved to the corporation, and cannot be alienated or impaired; such work to be done so as to obstruct the railroad as little as possible; and, if required, the corporation must shift its rails so as to avoid the obstructions made thereby. [Amendment approved March 30, 1874; Amendments 1878-4, 214. In effect July 1, 1874.] § 508. Each street railroad corporation must pay to the authorities of the city, town, county, or city and county, as a license upon each car, such sum as the authorities may fix, not exceeding fifty dollars per annum in the city of San Francisco, nor more than twenty-five dollars per annum in other citii s or tiwns. Where any street railroad connects or runs through two or more cities or towns, a pro- portionate or equal share of such license tax must be paid to each of the cities or towns; and no such license tax is due the county authorities where IGl STREET RAILROAD CORPORATIONS. §§ 509-511 the same is paid to any city or town authority. Licenses: See Polit. Cede, sees. 335G et seq. § 509. The right to lay down a tracli for ^rad- ius' purposes, and maintain the same for a period not to exceed three years, may be granted by the corporate authorities of any city or town, or city and county, or supervisors of any city or county, but no such traclv must remain more than three years upon any one street; and it must be laid level with the street, and must be operated under such restrictions as not to interfere with the use of the street by the public. The corporate author- ities of any city or town, or city and county, may grant the right to use steam or any other motive power in propelling the cars used in such grading tracli. when public convenience or utility demands it, but the reasons therefor must be set forth in the ordinance, and the right to rescind the ordinance at any time reserved. § 510. Street railroads are governed by the pro- visions of Title III of this part, so far as they are applicable, unless such railroads are therein spe- cially excepted. [Sees. 454-491.] [Amendment approved March 30, 1874; Amendments 1ST3-4, 214. In effect July 1, 1874.] See sees. 4.j4 et seq. § 511. AYhen a street railroad is constructed, owned, or operated by any natural person, this ti- tle is applicable to such person in like manner as it is applicable to corporations. §§ 512, 513 WAGON ROAD CORPORATIONS. 162 TITLE V. WAGON ROAD CORPORATIONS. § 512. Three commissioners to act with surveyor. § 513. Survey and map to be filed and approved by super- visors. § 514. Tolls. &c., to be collected. Penalty for taking un- lawful tolls. § 51.5. No tolls to bo charged on highways or public roads. § 516. Retcs of toll to bo posted at gate. § 517. Toll gatherer may detain persons until they pay toll. § 518. Toll gatherer not to detain any person unnecessarily. § 519. Persons avoiding tolls to pay five dollais. § 520. Penalties for trespasses on property of corporation. § 521. When capital invested is repaid, tolls to bo reduced, &c. § 522. May mortgage and hypothecate corporate property. § 523. This title applies to natural persons as well as cor- porations. § 512. AVbere a corporation is formed for the construction and maintenance of a wagon road, the road must he Laid out as follows: Three commissioners must act in conjunction with the surveyor of the corporation, two to be appointed by the board of supervisors of tlie coun- ty througli which the road is to run, and one by the corporation, who must lay out the proposed road and report their proceedings, together with tlie map of the road, to the sui)ervisors, as pro- vided in the succeeding section. [Amendment ap- proved March 30, 1874; Amendments 1873-4, 214. In effect July 1, 1874.] Sees. 291-294. § 513. When the route is surveyed, a map thereof must be submitted to and filed with the board of supervisors of each county througli or into which the road runs, giving its general course and the principal points to or by which it runs, and its width, which must in no case exceed one 163 WAGON ROAD CORPORATIONS. § 514 hundred feet, and the supervisors must either ap- prove or reject the survey. If approved, it must he entered of record on the journal of the board, and such approval authorizes the use of all public lauds and highways over which the survey runs; but the board of supervisors must require the cor- poration, at its OAvn expense, and the corporation must so change and open the highway so taken and used as to malve the same as good as they were before the appropriation tliereof: and must so construct all crossings of public highways over and by its road, and its toll gates, as not to hin- der or obstruct the use of the same. See supra, sec. 515. § 514. All wagon road corporations may bridge or keep ferries on streams on the line of their road, and must do all things necessary to keep the same in repair. They may take such tolls only on their roads, ferries, or bridges, as are fixed by the board of supervisors of the proper county tlirough which the road passes, or in which the ferry or bridge is situate, except that in the counties of Klamath, Butte, Del Xorte, Plumas, Humboldt, and Sierra, the directors may fix their own tolls; but in no case must the tolls be more than suffi- cient to pay fifteen per cent, nor less than ten per cent per annum on the cost of construction, after paying for repairs and other expenses for attend- ing to the roads, bridges, or ferries. If tolls, other than as herein provided, are charged or demanded, the corporation forfeits its franchise, and must pay to the party so charged one hundred dollars as liquidated damages. [Approved March 28, 1874; Amendments 1873-4, 272. In effect Mav 28, 1874.] Toll on bridge, obtaining consent of supervisors: See sec. 528, ante. §§ 515-520 WAGON ROAD CORPORATIONS. 164 Sale of franchise under execution: See sec. 388. Toll roads: Tolit. Code, sees. 2779 et seq. § 515. When any highway or public road is taiven and used by any Avagon road corporation as a part of its road, the corporation must not place a toll gate on or take tolls for the use of such high- way or public road bj^ teamsters, travelers, drov- ers, or any one transporting property over the same. See infra, sec. 513. § 516. The corporation must atFix and keep up, at or over each gate, or in some conspicuous place, so as to be conveniently read, a printed list of the rates of toll levied and demanded. § 517. Each toll gatherer may prevent from passing through his gate persons leading or driv- ing animals or vehicles subject to toll, until they shall have paid, respectively, the tolls authorized to be collected. § 518. Every toll gatherer who, at any gate, unreasonably hinders or delays any traveler or passenger llnble to the payment of toll, or demands or receives from any person more than he is au- thorized to collect, for each offense forfeits the sum of tAventy-five dollars to the person aggrieved. § 519. Every person who, to avoid the payment of the legal toll, with his team, vehicle, or horse, turns out of a wagon, turnpike, or plank road, or passes any gate thereon or ground adjacent there- to, and again enters upon such road for each of- fense forfeits the sum of five dollars to the cor- poration injured. § 520. Every person who: 1. Willfully breaks, cuts down, defaces, or in- 165 WAGON ROAD CORPORATIONS. §§ 521-523 jures any milestone or post on any wagon, turn- pike, or plank road; or, 2. Willfully breaks or throws down any gate on such road; or, 3. Digs up or injures any part of such road, or anything thereunto belonging; or, 4. Forcibly or fraudulently passes any gate thereon without having paid the legal toll; For each offense forfeits to the corporation in- jured the sum of twenty-five dollars, in addition to the damages resulting from his wrongful act. § 521. The entire revenue derived from the road shall be appropriated: first, to repayment to the corporation of the costs of its construction, together with the incidental expenses incurred in collecting tolls and keeping the road in repair; and, second, to the payment of the dividend among its stockholders, as provided in section five hun- dred and fourteen. AVhen the repayment of the cost of construction is completed, the tolls must be so reduced as to raise no more than an amount sufficient to pay said dividend, and incidental ex- penses, and to keep the road in good repair. [Amendment approved March 30, 1874; Amend- ments 1873-4, 215. In effect July 1, 1874.] § 522. The corporation may mortgage or hy- pothecate its road and other property for funds with which to construct or repair their road, but no mortgage or hypothecation is valid or binding un- less at least twenty-five per cent, of the capital stock subscribed has been paid in and invested In the construction of the road and appurtenances, and then only after an affirmative vote of two- thirds of the capital stock subscribed. § 523. When a wagon, turnpike, or plank road is constructed, owned, or operated by any natural §§ 528, 529 BRIDGE, FERRY, ETC., CORPORATIONS. 166 person, this title is applicable to sucli person in lil:e manner as it is applicable to corporations. Construction of Toll Roads: See Polit. Code, sees. 2779-2S31. TITLE VI. BRIDGE, FERRY, WHARF, CHUTE, AND PIER COR- PORATIONS. § 528. Corporation to obtain license from supervisors. § 529. lu what contingencies corporate existence ceases. § 530. President and secretary to make annual report, and ■what to contain. Damages for failing to report. § 531. This title to apply to natural persons alilie with cor- porations. § 528. No corporation must construct or take tolls on a bridge, ferry, wharf, chute, or pier un- til authority is granted therefor by the super- visors. Public ferries and toll bridges: See Polit. Code, sees. 2843 et sea. § 529. Every such corporation ceases to be a body corporate: 1. If, within six months from filing its articles of incorporation, it has not obtained such author- ity from the board of supervisors; and if, within one year thereafter, it has not commenced the construction of the bridge, wharf, chute, or pier, and actually expended thereon at least ten per cent, of the capital stock of the corporation; 2. If, within three years from filing the arti- cles of incorporation, the bridge, wharf, chute, or pier is not completed; 3. If, when the bridge, wharf, chute, or pier of the corporation is destroyed, it is not recon- structed and ready for use within three years thereafter; 4. If the ferry of any such corporation is not in running order within three months after authority 167 BRIDGE, FERRY, ETC., CORPORATIONS. § 530 is obtained to establish it, or if at any time there- after it ceases, for a like term consecutively', to perform the duties imposed by law. § 530. The president and secretary of every bridge, ferry, wlmrf, chute, or pier corporation must annually, under oath, report to the board of supervisors of the county in which the articles of incorporation are filed: 1. The cost of constructing and providing all necessarj' appendages and appurtenances for their bridge, ferry, wharf, chute, or pier; 2. The amount of all moneys expended thereon, since its construction, for repairs and incidental expenses; 3. The amount of their capital stock, how much paid in, and how much actually expended thereof; 4. The amount received during the year for tolls and from all other sources, stating each sepa- rately; 5. The amount of dividends made, and the in- debtedness of the corporation, specifying for what it was incurred; G. Such other facts and particulars respecting the business of the corporation as the board of supervisors may require. This report the president and secretary must cause to be pul)lished for four weeks in a daily newspaper published nearest the bridge, ferry, wharf, pier, or chute, if required by order of the board of supervisors. A failure to make such re- port subjects the corporation to a- penalty of two hundred dollars: and for every week permitted to elapse after such fnilure, an additional penalty of fifty dollars; payable in each case to the county from which the authority of the corporation was derived. All such cases must be reported by the board of supervisors to the district attorney, who must commence an action therefor. §§ 531-537 TELEGRAPH CORPORATIONS. 168 § 531. When a bridge, ferry, wliarf, chute, or pier is constructed, operated, or owned by a natural person, this title is applicable to such per- son in like manner as it is applicable to corpora- tions. General provisions: Public Ferries and Toll Bridi?es, Polit. Code, sees. 2843-2895; Wharves, Chutes, and Piers, Polit. Code, sees. 2906-2920. TITLE VII. TELEGRAPH CORPORATIONS. § 536. May use right of way along waters, roads, and high- ways. § 537. Persons liable for damages for injuring telegraph property. § 538. Party guilty of willful and malicious injury, liable to one hundred times actual damages. § 539. Conditions on which damage to subaqueous cable may be recovered. § 540. May dispose of certain rights. § 541. Rates of charges to be fixed, and how published. (Repealed.) § 536. Telegraph corporations may construct lines of telegraph along and upon any public road or highAvaj', along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insu- lators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or high- way, or interrupt the navigation of the waters. For an act to facilitate telegraphic communica- tion between America and Asia, approved Febru- ary 13, 1874; Stats. 1871-2, 97. Telegrnph companies are common carriers: See sees. 2207 et sea. § 537. Any person who injures or destroys, through want of proper care, any necessary or 169 TELEGRAPH CORPORATIONS. §§ 538-541 useful fixture of any telegraph corporation, is lia- ble to the corporation for all damages sustained thereby. Any vessel which, by dragging its an- chor or otherwise, breaks, injures, or destroys the subaqueous cable of a telegraph corporation, sub- jects its owner to the damages hereinbefore spec- ified. § 538. Any person who willfully and malicious- ly does any injury to any telegraph property men- tioned in the preceding section, is liable to the corporation for one hundred times the amount of actual damages sustained tlierel)y. to be recovered in any court of competent jurisdiction. § 539. No telegraph corporation can recover damages for the brealdng or injury of any sub- aqueous telegraph cable, unless such corporation has previously erected on either bank of the waters under which the cable is placed, a monu- ment, indicating the place where the cable lies, and publishes for one month in some newspaper most likely to give notice to navigators, a notice giving a description and tlie purpose of the mon- uments, and the general course, landings, and ter- mini of the cable. § 540. Any telegraph corporation may at any time, with the consent of the persons holding two- thirds of the issued stock of the corporation, sell, lease, assign, transfer, or convey any rights, priv- ileges, franchises, or property of the corporation, except its corporate franchise. § 541. [Repealed, March 30, 1874; Amendments 1873-4, 21G. In effect July 1, 1874.] Civ, Code.— 15. §§ 548, 549 WATER AND CANAL CORPORATIONS. 170 TITLE VIII. WATER AND CANAL CORPORATIONS. § 548. Corporation may obtain contract to supply city or town. § 549. Duties of corporation. Rates fixed by commission- ers. § 550. R ght to use streets, ways, alleys, and roads. § 551. To build and keep bridges in repair. § 552. Irrigation. Easement and water rates. § 548. No corporation formed to supply any- city, city and county, or town with water must do so unless previously authorized by an ordinance of the authorities thereof, or unless it is done in conformity Avith a contract entered into between the city, city and county, or town and the cor- poration. Contracts so made are valid and bind- ing- in law, but do not talve from the city, city and county, or town the right to regulate the rates for water, nor must any exclusive right be grant- ed. No contract or grant must be made for a term exceeding fifty years. Stats. 1852, 171, sec. 2; sees. 1410 et seq. Act authorizing supervisors to fix rates: See post, Appendix, p. 850. § 549. All corporations formed to supply water to cities or towns must furnish pure fresh water to the inhabitants thereof, for family uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor; and must furnish water to the extent of their means, in case of fire or other great necessity, free of charge. The rates to be charged for water must be determined by com- missioners, to be selected as follows: two by the city and county or city or town authorities, or, when there are no city or town authorities, by the 171 WATER AND CANAL CORPORATIONS. §§ 550, 551 board of supervisors of the county, and two by the water comijanj-; aud in case a majority cannot agree to the valuation, the four commissioners must choose a fiftli commissioner; if they cannot agree upon a fiftli, then the county judge of the county must appoint such fifth person. The de- cision of the majority'' of the commissioners shall determine the rates to be charged for water for one year, aud until new rates are established. The board of supervisors, or the proper city or town authorities, may prescribe proper rules re- lating to the delivery of water, not inconsistent with the laws of the State. [Amendment ap- proved March 30, 1874; Amendments 1873-4, 216. In effect July 1, 1874.] Stats. ISoS, 219, sec. 4. § 550. Any corporation created under the pro- visions of this part, for the purposes named in this title, subject to the reasonable direction of the board of supervisors, or city or town authori- ties, as to the mode and manner of using such right of way, may use so much of the streets, ways, and alleys in any town, city, or city and county, or any public road therein, as may be necessary for laying pipes for conducting water into any such town, city, or city and county, or through or into any part thereof. ' Stats. 1SG8, 220, sec. 5. § 551. Every water or canal corporation must construct and keep in good repair, at all times, for public use, across their canal, flume, or water pipe, all of the bridges that the board of super- visors of the county in which such canal is sit- uated may require, the bridges being on the lines of public highways and necessary for public uses in connection with such highways; and all water- §552 WATER AND CANAL CORPORATIONS. 172 works must be so laid and constructed as not to obstruct public highways. Stats. 1802, 541, sec. 4: See sees. 1410, et seq. See the earlier acts upon canal and ditch cor- porations: Act May 14, 18G2, Stats. 18G2, 541; and the subsequent act, April 2, 1870, Stats. 1870, 6G0. See also Statutes in Force, tit. Water Commis- sioners. Act of March 30. 1872, Relative to Formation of Canal and Ditch Corporations, Stats. 1871-2, p. 738. § 552. Whenever any corporation, organized under the laws of this State, furnishes water to irrigate lands which said corporation has sold, the right to the flow and use of said water is and shall remain a perpetual easement to the land so sola, at such rates and terms as may be established by said corporation in pursuance of law. And when- ever any person who is cultivating land, on the line and within the flow of any ditch owned by such corporation, has been furnished water by it, with which to irrigate his land, such person shall be entitled to the continued use of said water, upon the same terms as those who have purchased their land of the corporation. [New section ap- proved April 3, 187G; Amendments 1875-6, 77. In effect April 3, 187G.] Irrignlion, laws relating to: See Statutes in force, title Irrigation. Act regulating sale, rental, and distribution of appropriated water: See post, Appendix, p. S3G. 173 HOMESTEAD CORPORATIONS. §§ 557-559 TITLE IX. HOMESTEAD CORPORATIONS. § 557. Time of corporate existence. § 558. By-laws must specify time for and amount of pay- ment of installments, and penaltj^ for failure to pay. By-laws to be furnished to any member on demand. § 559. Advei tisement and sale of delinquent and forfeited shares. § 560. May borrow and loan funds— how, and for what time. § 561. Minor children, wards, and married women may own stock. § 562. Forfeiture for speculating in or owning lands ex- ceeding two hundred thousand dollars. § 5G3. "SVhen corporation is terminated, and how. § 5G4. Paymf-nt of premiums. § 565. Annual repoit to be published. § 566. Publication in certain cases. § 557. Corporations organized for the purpose of acquiring- lands in large tracts, paying oft" in- cumbrances thereon, improving and subdividing them into homestead lots or parcels, and distrib- uting them among the shareholders, and for the accumulation of a fund for such purposes, are known as homestead corporations, and must not have a corporate existence for a longer period than ten years. Time of corporate existence: See post, Ap- pendix, p. 773. § 558. Such corporations must specify in their by-laws llie times Avhen the installments of the capital stock are payable, the amount thereof, and tlie fines, penalties, or forfeitures incurred in case of default. A printed copy of the articles of in- corporal ion and by-laws must be furnished to any shareholder on demand. § 559. Whenever any shares of stock are de- § 560 HOMESTEAD CORPORATIONS. 174 clared forfeited, by resolution of the board of di- rectors, the directors may advertise the same for sale, giviug the name of the subscriber and the number of shares, by notice of not less than three weeks, published at least once a week in a news- paper of general circulation in the city, town, or county where the principal place of business of such corporation is located. Such sale must be made at auction, under the direction of the secre- tary of the company. The corporation may be a bidder, and the shares must be disposed of to the hi,£rhest bidder for cash. No defect, informality, or irregularity in the proceedin.as respectinc: the sale invalidates it, if notice is .aiven as herein pro- vided. After the sale is made the secretary must, on receipt of the purchase money, transfer to the purchaser the shares sold, and after deducting from the proceeds of such sale all installments then due. and all expenses and charges of sale, must hold the residue subject to the order of the delinquent subscriber. § 560. Homestead corporations may borrow money for the purposes of the corporation, not ex- ceeding at any one time one-fourth of the aggre- gnte amount of the shares or parts of shares actu- ally paid in, and the income thereof; no greater rate of interest must be paid therefor than twelve per cent, per annum. For the purpose of complet- ing the purchase of lands intended to be divided and distributed, they may borrow on the security of their shares on the laud thus purchased, or that owned by the corporation at the time of procuring the loan, any sum of money which, together with the interest contracted to become due thereon, will not exceed ninety per cent, of the unpaid amount subscribed by the shareholders; but no loan mnst be made to the corporation for a term extendmg beyond that of its existence. 175 HOMESTEAD CORPORATIONS. §§ 561-563 § 561. Such shares of stock in homestead cor- poratious as may be acquired by children, tlie cost of which, aud the deposits aud assessments on which are paid from the personal earnings of the children, or with gifts from persons other than tlieir male parents, may be taken and held for them by their parents or guardians. Married women may hold such shares as they acquire with then* personal earnings, or those of their chihlren, voluntarily bestowed therefor, or from property bequeathed or given to them by persons other than their husbands. § 562. Homestead corporations must not pur- chase and sell, or otherwise acquire and dispose of real property, or any interest therein, or any personal property, for the sole purpose of specula- tion or profit. Xcr must any such corporation at any one time own .or hold, in trust or otherwise, for its purposes, real property, or any interest Therein, which in the aggregate exceeds in cash value the sum of two hundred thousand dollars. For any violation of the provisions of this section corporations forfeit their corporate rights and powers. On the application of any citizen to a court of competent jurisdiction such forfeiture may be adjudged, and the judgment carries with it costs of the proceedings. § 563. Except fcr the purpose of winding up and settling its affairs, every homestead corpora- tion must terminate at the expiration of the time fixed for its existence in the articles of incor- poration, or when dissolved as provided in this part. No dividend of funds must be made on ter- minntion of its corporate existence, until its debts and liabilities are paid: aud upon the final settle- ment of the affairs of the corporation, or upon the termination of its corporate existence, the direct- ors, in such manner as they may determine, must §§ 564-566 HOMESTEAD CORPORATIONS. 176 divide its property among its shareholders in pro- portion to their respective interests, or, upon the application of a majority in interest of the stoclv- holders, must sell and dispose of any or all of the renl estate of the corporation upon such terms as may he most conducive to the interests of all the stoclcholders, and must convey the same to the purchaser, and distribute the proceeds among the shareholders, or may at any time, when best for the interests of all the shareholders, cause the lauds of the corporation to be subdivided into lots and distributed, by sale for premiums, at auction or otherwise, among the shareholders. § 564. Such premiums on lots may be made payable at the time they are bid off, and, if not so paid on any lot of land, the directors may im- mediately offer the same for sale again. If made payable at a future day, and any shareholder fails to ])ny his bid on the day the same is made due and payable, the directors may advertise and sell the shares of stock representing the lots of land on which the premiums remain unpaid, in the manner provided in the by-laws for the sale of shares on account of delinquent installments and premiums. § 565. The actual financial condition of all homestead corporations must, by the directors thereof, be published annually in the [a] newspa- per published at the principal place of business of the corporation, for four weel^s, if published in a Aveekly, and two weeks, if published in a daily. The statement must be made up to the end of each year, and must be verified by the oath of the president and secretary, showing the items of property and liabilities. § 566. In any case in which a publication is re- quired, and no newspaper is published at the prin- 177 SAVINGS AND LOAN CORPORATIONS. § 571 cipal place of business, the publication may be made in a paper published in an adjoining county. See Act of ^[arch 23. 1874, Relative to Home- stead Corporations, Appendix, p. 77G. TITLE X. SAVINGS AND LOAN CORPORATIONS. § .571. May loan money— on what terms, how, and to whom, and how long. § 572. Capital Ptock, and rights and privileges thereof. § 573. No dividends, except from surplus profits. To con- tract no liability, except for deposits. § 574. Property which may be owned by corporations, and how disposed of. Restrictions in purchases as pro- vided above. § 575. Married women and minors may own stock in their own right. § 576. May issue transferable certificates of deposit. Special certificates. § 577. To provide reserve fund for the payment of losses. § 578. Prohibiuon on director and officer, and what va- cates office. I 579. Definition of phrase "create debts." Stats. 18G2, 199, sees. 4, 5; 18G4, 158, sec. 2. BanIvS cannot be created except under general laws: Const. Cal., art. 12, sec. 5. § 571. Corporations organized for the purpose of accumulating and loaning the funds of their members, stocl-iholders, and depositors, may loan and invest the funds thereof, receive deposits of money, loan, invest, and collect the same, with interest, and may repay depositors with or with- out interest. No such corporation must loan money, except on adequate security on real or personal property,, and such loan must not be for a longer period than six years. Act relating to banking corporations repealed: See post. Appendix, p. 714. Act compelling bank to publish statement of unclaimed deposits: See post. Appendix, p. 716. §§ 572-574 SAVINGS AND LOAN CORPORATIONS. 178 Act providiug for dissolution and winding up of savings baulks and trust companies: See post, Ap- pendix, p. 721. § 572. \\'lien savings and loan corporations have a capital stock specified in their articles of incorporation, certificates of the ownership of shares mny be issued; and the rights and priv- ileges to be accorded to, and the obligations to be Imposed upon, such capital stock, as distinct from those of depositors, must be fixed and defined, either in the articles of incorporation or in the by- laws- Stats. 18()2. 203, sec. 17. Stats. 1870, 130, sec. 1; 18G2, 199, sees. 10, 22. Increase of capital stock: See post. Appendix, p. 710. § 573. The directors of savings and loan cor- porations may, at such times and in such manner as the by-laws prescribe, declare and pay divi- dends of so much of the profits of the corpora- tion, and of the interest arising from the capital stock and deposits, as may be appropriated for that purpose under the by-laws or under their agreements with depositors. The directors must not contract any debt or liability against the cor- poration for any purpose whatever, except for de- posits. The capital stock and the assets of the corporation are a security to depositors and stock- holders, depositors having the priority of security over the stockholders, but the by-laws may pro- vide that the same security shall extend to de- posits made by stockholders. Act prohibiting dividing or withdrawing of cap- ital stock: See post, Appendix, p. 719. § 574. Savings and loan corporations may pur- chase, hold and convey real and personal prop- erty, as follows: 179 SAVINGS AND LOAN CORPORATIONS. § 574 1. The lot and bniklins: in which the business of the corporation is carried on, the cost of which must not exceed one hundred thousand dollars; except, on a vote of two-thirds of the stoclchold- ers, the corporation may increase the sum to an amount not exceeding two hundred and fifty thou- sand dollars; 2. Such as may have been mortgaged, pledged, or conveyed to it in trust, for its benefit in good faith, for money loaned in pursuance of the regu- lar business of the corporation; 3. Such as may have been purchased at sales under pledges, mortgages, or deeds of trust made for its benefit, for money so loaned, and such as may be conveyed to it by borrowers in satisfac- tion and discharge of loans made thereon; 4. No such corporation must purchase, hold, or convey real estate in any other case or for any other purpose; and all real estate described in sub- division three of this section must be sold by the corporation within five years after the title there- to is vested in it by purchase or otherwise; 5. No corporation must purchase, own, or sell personal property, except such as may be requisite for its immediate accommodation for the con- venient transaction of its business, mortgages on real estate, bonds, securities, or evidences of in- debtedness, public or private, gold and silver bul- lion, and United States mint certificates of ascer- tained value, and evidences of debt issued by thf United States; 6. No corporation must purchase, hold, or con- vey bonds, securities, or evidences of indebted- ness, public or private, except bonds of the United States, of the State of California, and of the coun- ties, cities, or cities and counties, or towns of the State of California, unless such corporation ha^ a capital stoclj or reserved fund paid in, of not less than three hundred thousand dollars. [Ap- §§ 575-577 SAVINGS AND LOAN CORPORATIONS. 180 proved March 18, 1874; Amendments 1873-4, 273. In effect immediately.] § 575. Married women and minors may, in their own right, malje and draw deposits and draw dividends, and give valid receipts therefor. Stats. 18G2, 199, sees. 14, 15; 1864, 158, sec. 4; 1870, 132, sees. 2, 3. § 576. Savings and loan corporations may is- sue general certificates of deposit, wliich are trans- ferable, as in other cases, by indorsement and de- livery; may issue, when requested by the deposi- tor, special certificates, acknowledging the de- posit by the person therein named of a specified sum of money, and expressly providing on the face of such certificate that the sum so deposited and therein named may be transferred only on the boolcs of the corporation; payment thereafter made by the corporation to the depositor named in such certificate, or to his assignee named upon the boolvs of the corporation, or, in case of death, to the legal representative of such person, of the sum for which such special certificate was issued, dis- charges the corporation from all further liability on account of the money so paid. Stats. 18G7-8, 459, sec. 1. § 577. Savings and loan corporations may pre- scribe by their by-laws the time and conditions on which repayment is to be made to depositors; but whenever there is any call by depositors for re- payment of a greater amount than the corporation may have disposable for that purpose, the direct- ors or officers thereof must not malve any new loans or investments of the funds of the deposi- tors, or of the earnings thereof, until such excess of call has ceased. The directors of any such cor- poration having no capital stock must retain, on 181 SAVINGS AND LOAN CORPORATIONS. §§ 578, 579 each dividend day, at least five per cent, of tlie net profits of the corporation, to constitute a re- serve fund, which must be invested in the same manner as other funds of the corporation, and must be used toward paying any losses which the corporation may sustain in pursuing its lawful business. The corporation may provide by its by- laws for the disposal of any excess in the reserve fund over one hundred thousand dollars, and the final disposal, upon the dissolution of the corpo- ration, of the reserve fund, or of the remainder thereof, after payment of losses. Stats. 1862, 201, sec. 11; 1870, 523, 822. § 578. No director or officer of any savings and loan corporation must, directly or indirectly, for liimself or as the partner or agent of others, bor- row any of the deposits or other funds of such corporation, nor must he become an indorser or surety for loans to others, nor in any manner be an obligor for moneys borrowed of or loaned .by such corporation. The office of any director or officer who acts in contravention of the provisions of this section immediately thereupon becomes va- cant. Overdrawing of his account by officer, a misde- meanor: Penal Code, sec. 501. § 579. Receiving deposits, issuing certificates of deposit, checks, and bills of exchange, and the like, in the transaction of the business of savings and loan corporations, must not be construed to be the creation of debts within the meaning of the phrase "create debts," in section 309. See Act of February 21, 1872, Relative to Cor- porations for the Accumulation and Investment of Tunds and Savings, Appendix, p. 719. Civ. Code.— 16. §§ 584-583 MINING CORPORATIONS. 182 TITLE XI. MINING CORPORATIONS. § 584. Removal of the principal office provided for. (Re- pealed.) § 585. Dirertois to file certificates of proceedings in offices cf county clerks and secretary of state, § 586. Transfer rgencies. § 587. 'Stock issued at transfer agencies. § 584. [Eepealed April .3, 1S7G; Amendments 1875-G, 73. In effect immediately.] § ^85. When the publication provided for in the preceding section has been completed, the direct- ors of the corporation must file in the offices of the clerks of the counties from and to which such change has been made, and in the office of the secretary of state, certified copies of the written co.nsent of the stockholders to such change, and of the notice of such change, and proof of publica- tion; also, a certificate that the proposed removal has taken place; and thereafter the principal place of business of the corporation is at the place to which it is removed. Stats. 1SG3-4. 70. sec. 1. Act for protection of miners: See post, Appen- dix, pp. 802, 803. Act relating to removal of officers: See post, Ap- pendix, p. 804. § 586. Any corporation organized in this State for the purpose of mining or carrying on mining operations in or without this State, may establish and maintain agencies in other States of the United States, for the transfer and issuing of their stock; and a transfer or issue of the same at any such transfer agency, in accordance with tlie pro- visions of its by-laws, is valid and binding as 1S3 BEXEVOLEXT C0RP0RATI0X3. §§ 587-593 fully jiud effectually for all purposes as if made upou the books cf such corporation at its principal office \viihin this State. The agencies must be governed by the by-laws and the directors of the corporation. Stats. 181j3-4, 7G, sec. 2. § 587. All stock of any such corporation, issued at a transfer agency, must be signed by the presi- dent and secretary of the corporation, and coun- tersigned at the time cf its issue by the agent having charge cf the transfer agency. No stock must be issued at a transfer agency unless the ceriiticate of stock, in lieu of which the same is issued, is at the time surrendered for cancella- tion. Stats. 1863-4, 429. sees. 1, 3. TITLE XII. BEXEVOLEXT CORPORATIONS. § 593. CorrorPtions for purposes other than profit, ho-w formed. § .'91. jAddifoual farts, articles of incorporation to set out. § "9^. Amount of real estate limit'-d. § 5£fi. L?nd held by Masons. Odd Fallows, and Poneers. § 5f7. Directors to make verified report annually. § .568. Sale and morttaite of real estate. § 599. What may bo provided for in their by-laws, &c. § 600. Members Edmitt-^d after inr orporaticn. § eoi. No member to transfer membership, &c. § 602. Rrligicus societies may become sole corporations. § "03. Chiiifhes, how incorporattd. § G04. Same. § 593. Any number of persons associated to- gether for any purpose, where pecuniary profit is not their object, and for which individuals may lawfully associate themselves, may, in accordance with the rules, regulations, or discipline of such association, elect directors, the number thereof to be not less than three nor more than eleven, and §§ 594, 595 BENEVOLENT CORPORATIONS. 184 may iucorporate themselves as provided in this part. [Amendment approved April 6, 1880; Amendments, 1880, p. 0. In effect April 5, 1880.] Act relatinfi^ to mutual benefit and relief associa- tions: See post, Appendix, p. 723. Benevolent associations not insurance compa- nies: Sec. 451, ante. § 594. In addition totherequirements of section 290, the articles of incorporation of any associa- tion mentioned in the preceding section must set forth the holding of the election for directors, the time and place where the same was held, that a majority of the members of such association were present and voted at such election, and the result thereof; which facts must be verified by the offi- cers conducting the election. Stats. 1850, 347, sec. 170; 18G2, 125. § 595. All such corporations may hold all the property of the association owned prior to incor- poration or acquired thorenfter in any manner, and transact all business relative tliereto; but no such corporation must own or hold more real estate than may be necessary for the business and ob- jects of the association and providing burial grounds for its deceased members, not to exceed six whole lots in any city or town, nor more than twenty acres in the country, the annual increase, income, or profit whereof must not exceed fifty thousand dollars; provided, that any such corpora- tion now, or hereafter having, and having had continuously for the next preceding three years, the care, custody, control, and maintenance each year, upon an annual average of not loss tlmn one hundred orphans, half orphnns, and indigent minor children at any one orphan asylum, shall be entitled and allowed to own and possess any number of acres not exceeding one hundred and sixty acres of land in the country, outside of any 1S5 BENEVOLENT CORPOPwATIONS. §§ c95-598 incorporated city or tovru, and the annual income or profit of \^'liicb dees not exceed fifty thousand dollars; and provided further, such orphan asylum shall be situated on such lands; and provided fur- ther, that the limitations herein provided for shall not apply to corporations formed, or to be formed, under section six hundred and two of the Civil Code, when the land is held or used for churches, hospitals, schools, colleges, orphan asylums, par- sonages, or cemetery purposes. [Amendment ap- proved February 2(J. 1881; Stats. 1881, 9. In effect February 26, 1881.] § 596. In addition to that provided for in the preceding: section, friendly societies and Pioneer associations may hold such real estate as may be necessary to carry out their charitable pur- poses, or for the establishment and endowment of institutions of learning connected therewith. In case any such corporation is the owner, by dona- tion or purchase, of more lands than herein or in the preceding section provided for, such surplus must be sold and conveyed by the corporation within five years after its acquisition. Such sale may be made without the order or decree of the Superior Court, as hereinafter provided. [Amend- ment approved April 0, 1880; Amendments 1880, G. In effect immediately.] § 597. The directors must annually make a full report of all properly, real and personal, held in trust for tlieir corporation by them, and of the con- dition thereof, to the members of the associa- tion for which they are acting. Stats. 1850, 374, sec. 183. § 598. Religious and benevolent corporations may mortgage or bond property. Corporations of the character mentioned in section five nundred and ninety-three may mortgage or sell the real § 599 BENEVOLENT CORPORATIONS. 186 property liekl by tliem, aud may secure the pay- ment of iudebtediiej^s by deed of trust or mort- gage upon their real property, upon obtaining an order for that purpose from the superior court held in the county in wliich the property is sit- uated. The corporntions above mentioned may also issue bonds, payable at any time within twen- ty years, as evidence of the indebtedness secured by mortgage or deed of trust. Before mailing the order, proof must be made to the satisfaction of the court, that notice of the application for leave to sell or mortgage or execute a deed of trust has been given by publication in such manner and for such time as the court or the judge has directed, and tliat it is to the interest of the corporation that leave should be granted as prayed for. The application must be mnde by petition, and any member of the corporation may oppose the grant- ing of the order by affidavit or otherwise. But nothing herein contained shall prohibit or prevent the trustees or directors of such corporation, un- der such rules and regidations as tliey may adopt, from disposing of burinl plots situated in grounds of such corporation dedicnted for burial pm'poses, without making such application to or obtaining an order from court. [Amendment appi-oved March 20, 1891; Stats. 1891, p. 179. In effect im- mediately.] § 599. Corporations organized for purposes other than for profit may, in their by-laws, or- dinances, constitutions, or articles of incorpora- tion, in nddition to the provisions in Title I. of this Part, provide for: 1. The qualificntion of members, mode of elec- tion, and terms of admission to membership. 2. The fees of admission and dues to be paid to their trensiu-y by members. 3. The number of members that shall constitute a quorum at any meeting of the corporation, and 187 BENEVOLENT CORPORATIONS. §§ 600-602 that election of officers of the corporation by a meeting so constituted sliall be as valid as if there had been a majority of the members present thereat and voting. 4. The expulsion and suspension of members for misconduct or nonpayment of dues; also, for restoration to membership. 5. Contrncting, securing, paying, and limiting the amount of their indebtedness. 6. Other regulations, not repugnant to the Con- stitution cr laws of the State and consonant with the obiects of the corporation. [Approved March 14, 1885; Stats. 1885, 130.] Stats. 18(J3, 624, sees, 8, 9. By-laws may provide for what: See, generally, sec. 303, ante. § 600. Members admitted after incorporation have all the rights and privileges, and are subject to the same responsil)ilities, as members of the association rrior thereto. Stats. 1863. 624. sec. 7. § 601. No member, or his legal representative, must dispose of or transfer any right or privilege conferred on him by reason of his membership of such corporation, or be deprived thereof, except as herein r»rovided. See acts of March 28, 1874, Eelative to Mutual Beneficial and Relief .Associations, Appendix, p. 72:^,: and January 8.1872, Ilelative to Incorporation of ColleL'Ps by Benevolent and Religious ijocieties, Stats. ] 871-2, p. 10. § 602. Whenever the rules, regulations, or dis- cipline of any religious denomination, society, or church so require, for the administration of the tempornlities thereof, and the manncrement of the estate and property thereof, it shall be lawful for the bishop, chief priest, or presiding elder of such § 602 BENEVOLENT CORPORATIONS. 18S religious denomination, society, or church to be- come t\ sole corporation, in the manner pre- scribed in this title, as nearly as may be. and with all the powers and duties, and for the uses and purposes in this title provided tor religious incor- porations, and subject to all the conditions, limi- tations, and provisions in said title prescribed. Every corporation sole shall, however, for the purposes of the trust, have power to contract in the same manner and to the same extent as a natural person, and may sue and be sued, and may defend, in all courts and places, in all mat- ters and proceedings whatever, and shall have au- thority to borrow money, and give promissory notes therefor, and to secure the payment thereof by mortgage or other lien upon property, real or personal; to buy, sell, lease, mortgage, and in every way deal in real and personal property in the same manner that a natural person may, and without the order of any court; to receive be- quests and devises for its own use or upon trusts to the same extent as natural persons may; and to appoint attorneys in fact. The articles of in- corporation to be tiled shall set forth the facts authorizing such incorporation, and declare the manner in which any vacancy occurring in the incumbency of such bishop, chief priest, or pre- siding elder is required bj' the rules, regulations, or discipline of such denomination, society, or church to be filled, which statement shall be veri- fied by affidavit, and for proof of the appointment or election of such bishop, chief priest, or presid- ing elder, or of any succeeding incumbent of such corporation, it shall be sufficient to record with the clerk of the county in which such bishop, chief priest, or presiding elder resides, the origi- nal or a copy of his commission, or certificate of letters of election or appointment, duly attested; provided, all property held by such bishop, chief IS9 BEXEVOLEXT CORPORATIOXS. § 602 priest, or presiding elder shall be in trust for the ase. purpose, and behoof of his religious denomi- nation, society, or church. The limitation in sec> lion five hundred and ninety-five shall not apply to corporations formed under this section, when the land is held or used for churches, hospitals, schools, colleges, orphan asylums, parsonages, or cemetery purposes. Any judge of the Superior Court in the county in which any corporation is formed under this chapter shall at all times have access to the books of such incorporation. Any corporation sole heretofore organized and exist- ing under the laws of this State may elect to con- tinue its existence under this title by filing a cer- tificate to that effect, under its corporate seal and the hand of its incumbent, or amended articles of incoiiDoration, in the form required by this title, and as prescribed by section two hundred and eighty-seven of this Code; and from and after the filing of such certificate or amended articles, such corporation shall be entitled to the privileges and subject to the duties, liabilities, and provis- ions in this title expressed. [Approved March 11, 1897; Stats. 1807, i)8.] § G02. Note— This section was also amended in 1880; Amendments 1880, p. 6. The original of the foregoing section 602 was a new section added to the Code by act of March 30, 1878; Amendments 1877-8, 84; took effect im- mediately. That act contains the following addi- tional section: Continuance of existence. Sec. 2. Any corporation sole heretofore organized and ex- isting under the laws of this State may elect to continue its existence under this act by filing a certificate to that effect, under its cor- porate seal and the hand of its incumbent or amended articles of incorporation, in the form re- §603 BENEVOLENT CORPORATIONS. 190 quired by the preceding: section, as prescribed by section two liuudred and eighty-seven (287) of tlie Civil Code; and from and after tbe filing of siicli certificate or amended articles sncli corporation shall be entitled to the privileges and subject to the duties, liabilities, and provisions of this act expressed. § 603. Whenever the regulations, rules, or dis- cipline of any church or religious society require, for the administration of the temporalities there- of, or for the management of the property or es- tate thereof, any diocese, synod, or district organi- zation of such church or religious society may elect directors and become an incorporation in the manner prescribed in this title, and with all the I)Owers and duties, and for the uses and purposes in this title provided for benevolent or religious Incorporations, and subject to all the conditions, limitations, and provisirns in said title prescribed, except as otherwise provided in this section; pro- vided, Ihat directors of such incorporation may be elected, and that the by-laws for its govern- ment may be made and amended by the conven- tion, synod, or other representative body of such church or reli?rious society, in and for such district, in accordance with the constitution, by-lnws. dis- cipline, or resrulalion thereof, at any regular meet- in??, or special meetino- called for that purpose; and, provided, the certificate of incorporation and of the election of directors to be filed shall be suf- ficiently sirrned and attested by the signature of the T^residinsT officer and secretary of the repre- sentative convention, synod, or other such body, in which suoh election is held: and. provided, all property held by such incorporation shall be in trust for the use, benefit, and purpose of the church or religious society by and for which such incorporation was formed, and in and of which such diocese, synod, or other district is an organ- 191 BEXEVOLEXT CORPORATIOXS. § G04 izod or coustitueut part; and that the limitation in section tive liiindred and niuety-tive shall not ap- ply to corporations formed under this section, wiien the land is held or used for churches, hos- pitals, sciiools, colleges, asylums, parsonages, or cemetery purposes. L>>'ew section approved March 12, 1885; Stats. 1885, 109.] i5 e04. Any church or other religious associa- tion in this State, composed of two or more con- stituent parishes, missions, congregations, or so- cieties, having a common convention, synod, coun- cil, or other representative legislative bcd3% may be incorporated by such representative body under this part and subject to the provisions of this ti- tle, except as otherwise provided in this section. The representative body of such religious associa- tion electing to incorporate the same shall de- termine the name of the proposed corporation, the purpose for which it is formed, the place where its, principal business is to be transacted, the term for which it is to exist, and the number of its di- rectors, and shall elect its directors for the first year. The articles of incorporation need only be signed and acknowledged by the presiding officer and secretary of such representative body, and in addition to the reciuirements of section two hun- dred and ninety, shall set forth the proceedings herein prescribed for said representative body, and that the same were duly had in accordance with the constitution, canon, rules, or regulations governing the other proceedings of said represent- ative body, and the time and place thereof. The directors of such corporation shall be elected an- nually by the representative body of the associa- tion. The representative body providing for such incorporation shall frame by-laAvs for the corpo- ration, and such by-laws may be repealed or amended, or new by-laws may be adopted by any subsequent representative body In accordance § 608 CEMETERY CORPORATIONS. 192 with the constitution, canons, rules, or regulations governing the otlier proceedings of such represent- ative body. Such corporation may hold and ad- minister not only the common property, funds, and money of such association, but also the prop- erty, funds, and money of any constituent parish, mission, congregation, or society. The limitation in section five hundred and ninety-five shall not apply to cor])orations formed under this section when the land is held or used for churches, hospi- tals, schools, colleges, asylums, parsonages, or cemetery purposes. [In effect ^March 11, 1887. Amendment approved March 11, 1887; Stats. 1887, p. 104. In effect immediately.] TITLE XIII. CEMETERY CORPORATIONS. § 608. How much land may be held, and how disposed of. § 609. Who are members eligible to vote and hold oflace. § 610. May hold personal property, to what amount. How disposed of. § 611. May issue bonds to pay for grounds. Proceeds of sales:, how disposed of. § 612. May take and hold property or use income thereof, how. § 613. Interments in lot, and effect thereof. Transfer of rights only made, how. § 614. Lot owners previous to purchase to be members of the corporation. § 615. May sell lands, how. § 616. May hold property. Income, how applied. § 608. Corporations organized to establish and maintain cemeteries may take, by purchase, dona- tion, or devise, laud, not exceeding three hundred and twenty acres in extent, in the county wherein their articles of incorporation are filed, or in an adjoining county, and may employ any surplus moneys in the treasury thereof for such purpose; such lands to be held and occupied exclusively as a cemetery for the burial of the dead. The 193 CEMETERY CORPORATIONS. §§ 609, 610 lands must be surveyed and subdivided into lots or plats, avenues, and walks, under order of the directors, and a map thereof filed in the office of the recorder of the county wherein the lands are situated. Thereafter, upon such terms and sub- ject to such conditions and restrictions, to be in- serted in the conveyances, as the by-laws or direct- ors may prescribe, the directors may sell and con- vey the lots or plats to purchasers. [Amendment apiproved March 20, 1S91; Stats. 1891, p. 180. In effect immediately.] See Stats. 1859, 281, for the origin of this title. Manner of execution of deeds by: See post, Ap- pendix, p. 763. § 609. Every person of full age who is proprie- tor of a lot or plat in the cemetery of the corpora- tion, containing not less than two hundred square feet of land, or, if there be more than one pro- prietor of any such lot, then such of the pro- prietors as the majority of joint proprietors desig- nate, may, in person or by proxy, cast one vote at all elections had by the corporation for di- rectors or any other purpose, and is eligible to any office of the corporation. At each annual meeting or election, the directors must malie a report to the proprietors of all their doings, and of the management and condition of the property and concerns of the corporation. § 610. Such corporations may hold personal property to an amount not exceeding five thou- sand dollars, in addition to the surplus remaining from the sales of lots or plats after the payments required in the succeeding section. Such surplus must be disposed of in the improvement, embel- lishment, and preservation of the cemetery, and paying incidental expenses of the corporation, and in no other manner. Stats. 1864, 12, sec. 1. Civ. Code.— 17. §§ 611-613 CEMETERY CORPORATIONS. 194 § 611. Such corporations may issue their bonds, bearing interest not exceeding twelve per cent, per annum, for the purchase of lands for their cemeteries, payable out of the proceeds of the cem- etery, and not otherwise. Sixty per cent, of the proceeds of sales of lots, plats, and graves must be applied at least every three months to the pay- ment of the bonds and interest. Such corporations may also agree with the person or persons from whom cemetery lands shall be purchased, to pay for such lands, as the purchase price thereof, any specified sliare or portion, not exceeding one-half, of the proceeds of all sales of lots or plats made from such lands; such payments to be made at such intervals as may be agreed upon. In all cases where cemetery lands shall be purchased and agreed to be paid for in the manner last provided, ^hf^ prices for lots or plats specified in the by-laws, rules, or regulations first adopted by sucli asso- ciation, or prescribed in the agreement betAveen the cemetery and the person or persons from whom the cemetery lands were purchased, shall not be changed without the written consent of a majority in interest of the persons from whom such lands were purchased, their heirs, represent- atives, and assigns. [Amendment approved April 10. 18S0: Amendments ISSO, 12. In effect April 10, 1880.] § 612. Cemetery corporations may take and hold any property bequeathed or given them on trust, or the lots, plats, or graves thereon, for the specific purpose of embellishing or improving the grounds, avenues, or superstructures of their cem- eteries, to use the income thereof, for the erection, preservation, or repair of monuments therein, or for any other purpose or design consistent with the objects of the corporation. § 613. Whenever an interment is made in any 195 CEMETERY CORPORATIONS. §§ 614, 615 lot or piat transferred to individual owners by tlie corporation, the same thereby becomes fore%-er inalienable, and descends in regular line of succes- sion to the heirs at law of the owner. When there are several owners of interests in such lot or plat, one or more may acquire by purchase the interest of others interested in the fee simple title thereof, but no one not an owner acquires interest or right of burial therein by purchase; nor must any one be buried in any such lot or plat not at the time owning an interest therein, or Avho is not a rela- tive of such owner, or of his wife, except by consent of all jointly interested; provided, how- ever, that when all the bodies buried in any such lot shall have been removed therefrom, with the consent of the owners of such lot, it shall be law- ful for the then owners of such lot to sell and transfer the same by deed; and any such sale and transfer heretofore made is hereby declared to be valid and effectual to transfer the title to the pur- chaser, any law to the contrary thereof notwith- standing. [Amendment approved February 10, 18.S5; Amendments 1SS5, 1. In effect February 10, 18S5.] § 614. When grounds purchased or otherwise acquired for cemetery purpcses have been pre- viously used as a burial ground, those who are lot owners at the time of the purchase continue to own the same, and are menibers of the corpora- tion, with ail the privileges a purchase of a lot from the corporation confers. § 615. Cemetery corporations may sell lands held by them upon obtaining an order for that pur- pose from the Superior Court of the county where the lands are situated. Before malving the order, proof must be made to the satisfaction of the court that notice of the application for leave to sell has been given by publication in such manner and for § 616 CEMETERY CORPORATIONS. 196 such time as the court has directed, and that the lands are not required for and are not in use for burial purposes, and that it is for the interest of the corporation that such lands be sold. The application must be made by petition, and any member of the corporation may oppose the grant- ing of the order by affidavit or otlierwise. [New section approved March 4, 1889; Stats. 1889, p. 61. In effect immediately.] § 616. Any corporation organized to establish and maintain, or to improve, a cemetery, may take and hold any property bequeathed, granted, or given to it upon trust, to apply the proceeds or income thereof to any or all of the following pur- poses: To the improvement or embellishment of such cemetery, or of any lot therein; or to the erection, renewal, repair, or preservation of any monument, fence, or other structure in such cem- etery; or to the planting or cultivation of trees, shrubs, or plants in or around such cemetery, or any lot tlierein; or to the improving, ornamenting, or embellishing of such cemetery, or any lot there- in, in any otiier mode or manner not inconsistent with the purposes for which said cemetery was es- tablished or is being maintained. Such property, and tlie proceeds or income thereof, shall be in- vested and re-invested by such corporation, in the bonds of the Ignited States, or of this State, or of any municipality of this State, or in mortgages of real estate, if such investment be not repug- nant to the terms of the bequest, grant, or gift. [New section approved INIarch 20, 1895; Stats. 1895. p. 119. In effect immediately.] 197 AGRICULTURAL FAIR CORPORATIONS. §§ 620-322 TITLE XIY. AGRICULTURAL FAIR CORPORATIONS. § 620. May acquire and hold real estate, how much. § bj.1. Shall not contract debts or liabilities exceeding amount in tieasury. § 622. Not for profit. May fix fee, &c., for membership. § 620. Agricultural Fair Corporations may pur- cliase, hold, or lease any quantity of land, not ex- ceeding in tlie aggregate one hundred and sixty acres, with such buildings and improvements as may be erected thereon, and may sell, lease, or otherwise dispose of the same, at pleasure. This real estate must be held for the purpose of erect- ing buildings and other improvements thereon, to promote and encourage agriculture, horticulture, mechanics, manufactures, stocli raising, and gen- eral domestic industry. See Stats. 1850, 104, for the origin of this title. § 621. Such corporation must not contract any debts or liabilities in excess of the amount of money in the treasury at the time of contract, ex- cept for the purchase of real property, for which they may create a debt not exceeding five thou- sand dollars, secured by mortgage on the prop- erty of the corporation. Tlie directors who vote therefor are personally liable for any debt con- tracted or incurred in violation of this section. § 622. Agricultural Fair Corporations are not conducted for profit, and have no capital stock or income cth' r than that derived Ir m chu-ges to ex- hibitors and fees for membership, which charges, together with the term of membership and mode of acquiring the same, must be provided for in their by-laws. Such fees must never be greater than to raise sufficient revenue to discharge the §§ 628, C29 GAS CORPORATIONS. 198 debt for the real estate and tlie improvements tliercoii, and to defray the curreut expenses of fiiirs. TITLE XV. GAS CORPORATIONS. § G28. Corporafons to obtain privilege from city or town Slid use meters proved by the inspertor. § 629. Gas to be supplied on written application. Dam- ages for refupal. § 630. "SMirn corpnratinrs may refure to supply gas. § e*^!. Aernt of corporation may inspect nn^t'^rs. § 632. When persons neglect to pay, gas may be shut off. § 628. No corporation hereafter formed must snpi)ly any city or town witli jjas, or lay down mains or pipes for that purpose in the streets or alloys thereof, without permission from the city or town authorities, granted in pursuance of the provisions of the Political Code or of statutes ex- pressly continued by such Code. Nor must such corporation furnish or use anj' gas-meter which has not been proved and sealed by the inspector of gas-meters. See Stats. 1SG3, 678, for the origin of this title. § 629. Upon the application in writing of the owner or occupant of any dwelling or premises distant not more than one hundred feet from any main of the corporation, and payment by the ap- plicant of all money due from him, the corpora- tion must supply gas as required for such build- ing or premises, and cannot refuse on the ground of any indebtedness of any former owner or oc- cupant thereof, unless the applicant has under- taken to pay the same. If, for the space of ten days after such application, the corporation re- fuses or neglects to supply the gas required, it must pay to the applicant the sum of fifty dollars as liquidated damages, and five dollars a day as 199 GAS CORPORATIONS. §§ 630-G32 liquidated damages for every day sucli refusal or neglect continues thereafter. § 630. No ccrpcraticu is required to lay ser- vice pipe where serious obstacles exist to laying it, unless the applicant, if required, deposits in ad- vance, with the corporation, a sum of money sufli- cient to pay the cost of laying such service pipe, or his proportion thereof. § 631. Any agent of a gas corporation exhibit- ing written authority, signed by the president or secretary thereof for stich purpose, may enter any building or premises lighted with gas supplied by such corporation, to inspect the gas-meters therein, to ascertain the quantity of gas supplied or consimied. Every owner or occupant of stich buildings who hinders or prevents such entry or in- spection must pay to the corporation the sum of fifty dollars as liquidated damages. § 632. All gas corporations may shut off the supply of gas from any person who neglects or re- fuses to pay for the gas supplied, or the rent of any meter, pipes, or fittings provided by tlie corpo- ration as required by his contract; and for the purpose of shutting off the gas in such case any employee of the corporation may enter the btiild- ing or premises of such person, between the hours of eight o'clccli in tlie forenoon and six o'clock in the afternoon of any day, and remove therefrom any property of the corporation used in supplying £r-"'S. § 633 LAND AND BUILDING CORPORATIONS. 200 TITLE XVI. LAND AND BUILDING CORPORATIONS. § 633. Formation and organization. § t>34. Capi.ai ttock. § ^b. KuLuiug tree shares. § b36. Matui ity of stock. § oa7. Luajis. § 638. Rate of interest. § 63y. i"orteiture—Ai rears in payments. § 6i0. Purchase of real estate. § 641. Borrowing money. § 642. Piotits and losses. § 643. Membership. § 644. Annual report. § 645. foreign corporations, deposit by. § 646. Electing to continue business. § 647. Subject to provisions relating to bank commissioners. § b48. JJeUUition or. § 6481/^. Taxation of. § 633. Corporations may be formed subject to the provisions of this title, and with all the rights, duties, and poAvers herein specified. Such corpora- tions shall be known as mutual building and loan associations, and the words "mutual building and loan association" shall form part of the name of every such corporation. The articles of incorpo- ration, in setting forth the purposes for which the corporation is formed, shall state, that it is formed to encourage industry, frugality, home building, and savings among the stockholders; the accumu- lation of savings; the loaning to its stockholders of the funds so accumulated, with the profits and earnings; and the repayment to each stockholder of his savings and profits, when they have accu- mulated to a certain sum, or at any time when he shall desire the same, as provided in the by-laws, or when the corporation shall desire to repay the same; and shall also state that it is formed for all the purposes specified in this title. [New section 201 LAND AND BUILDING CORPORATIONS. § 634 added March 31, 1891; Stats. 1891, p. 252. In ef- fect immediately.] TLe sections by this act added to the Civil Code, providing for the examination by the banii com- missioners of this State of all building and loan associations, apply to all such corporations, wheth- er organized and doing business before or after the passage of this act: Acts of 1891, p. 252, sec. 1. Act creating board of commissioners of building and loan associations: See post, Appendix, p. 727. Annuity or endowment insurance: See post, Ap- pendix, p. 777. § 634. The capital stock of such corporations shall be paid in by the stockholders in regular, equal, periodical payments, at such times and in such amounts as shall be provided in the by-laws. Such periodical payments shall be called dues; and at or before a time to be stated in the by- laws, each stockholder shall pay to the corpora- tion, upon each share of stock held by him, such an amount of dues as the by-laws shall provide; and the payment of dues shall so continue on each share of stock issued till it reaches its matured value, or is withdrawn, canceled, or forfeited. The capital stock shall consist of such accumulated dues, together with the earnings and profits of the corporation, and shall in no case exceed two mil- lion dollars, except as to corporations now exist- ing. It shall be divided into shares of matured or par value of one hundred dollars, or two hundred dollars each, as shall be provided in the articles of incorporation and fixed by the by-laws. Cer- tificates of stock shall be issued to each stockhold- er on the first payment of dues by him. The shares shall be issued in yearly, half-yearly, or quarterly series, except in corporations now exist- ing, in such amounts in each series, and at such times, as shall be determined by the board of di- rectors. No share of a prior series shall be is- § 635 LAND AND BUILDING CORPORATIONS. 202 sued after the issuing of sliares in a new series. Shares which have not been pledged as a security for the repaj'ments of a loan shall be called free shares. Shares that have been so pledged shall be called pledged shares. All stock matured ami surrendered or canceled in any series shall be- come the property of the corporation, and may be Issued in any subsequent series. Payment of dues on shaies of stock in each series shall commence from the time that shares began to be issued in such series. Any such corporation shall have power by its by-laws to impose and collect a fine from each stockholder not exceeding ten per cent of the defaulted amount, for every neglect or re- fusal to make his payments of dues, or premium, or interest, when due, and to impose and collect a like fine successively on every regular pay-day during such default. Every such corporation here- after formed shall also have power to charge an entrance fee upon each share of stock issued, not exceeding ten cents on each share, and may also charge a transfer fee not exceeding ten cents on each sliare, all of which shall be paid into the treasury and accounted for as all other funds of the association; provided, that building and loan associations heretofore incorporated may continue to charge and dispose of such entrance and trans- fer fees as are prescribed by the by-laws of such corporation. Payment of dues or interest may be made in advance, but no association shall allow interest on such advance payments at a greater rate than six per cent per annum, nor for a longer period than one year. [New section added March 81, ISOl; Stats. 1891, p. 253. In effect immedi- ately.] § 635. The directors may, at their discretion, under the regulations prescribed in their by-laws, retire the free shares of any series of stock, at any time after four years from the date of their 203 LAND AND BUILDING CORPORATIONS. § 636 issue, by enforcing the witliclrawal of the same; but whenever there shall remain in any series, at the expiration of tire years after the date of its issue, an excess aljove one hundred free sliares of the par value of two hundred dollars each, or two hundred free shares of the par value of one hundred dollars each, then it shall be the duty of the directors to retire annually twenty-five per centum of such excess existing at said expiration of five years after the date of its issue, so that no more than one hundred free shares shall remain in such series at the expiration of nine years from the date of its issue; provided, that no more than one half the monthly receipts be used for that pur- pose; and thereafter the directors may, in their discretion, retire such other free shares as they consider to the best interest of the association to retire; provided, that whenever, under the provi- sions of this section, the withdrawal of shares is to be enforced, the shares to be retired shall be determined by lot, drawn from all free shares in the series, as shall be regulated by the by-laws, and the holders thereof shall be paid the amount actually paid in, and the full amount of earnings at the date of last apportionment of profits. [New section added Maroli 31, 1801; Stats. 1891, p. 254. In effect immediately.] § 636. When the stock in any series shall have reached its matured value, payment of dues there- on shall cease, and all of the stoclvholders in such series who have borrowed from the association shall be entitled to have their securities returned to them, and a satisfaction of the mortgages made by them to the association; and the holders of free shares of stock in such series shall be paid out of the funds of the association the matured value thereof, with such rate of interest as shall be determined by the by-laws, from the time the board of directors shall declare such shares to §§ 637. 638 LAND AND BUILDING CORPORATIONS. 204 have matured until paid; but at no time shall more than one-third of the receipts of the association be applicable to the payment of matured shares, without the consent of the board of directors. The order of the payment of the matured shares shall be determined by the by-laws. [New section added March 31, 1891; Stats. 1891, p. 254. In ef- fect immediately.] § 637. The moneys in the hands of the treas- urer, and such sums as may be borrowed by the corporation for the purpose, shall be loaned out in open meeting to the member who shall bid the highest premium, or may be loaned at such pre- mium as may be fixed from time to time, by the board of directors; and the premium may be de- ducted from the amount of the loan, or such pro- portion may be deducted as the by-laws shall pro- vide, and in that case the balance of said pre- mium shall be payable in such installments as the by-laws shall determine; provided, however, thai where the premium is payable in installments, the number of installments into which the same is divided shall be uniformly applicable to all loans made by the corporation, and shall be payable at the times and in the manner as provided in the by-laws; and provided further, that in no case shall the amount loaned exceed the matured value of the shares pledged to secure the loan. [New section added March 31, 1891; Stats. 1891, p. 254. In effect immediately.] § 638. The rate of interest on all loans may be fixed by the by-laws, but, in case the by-laws fail to fix the rate, then it shall be fixed, from time to time, by the board of directors. For every loan made, a note or obligation, secured by a first mortgage or deed of trust upon unincumbered real estate, shall be given, accompanied by a transfer and pledge to the association of the 205 LAND AND BUILDING CORPORATIONS. § 63» shares borrowed upon, as collateral security for the repayment of the loan; or, in lieu of the mort- gage or deed of trust, there may be pledged and transferred to the association, for the payment of the loan, free shares, the withdrawal value of which, under the by-laws, at the time of such borrowing, shall exceed the amount borrowed and interest thereon for six months. At the discre- tion of the board of directors, a borrower may re- pay a loan, and all arrears of interest and tines thereon, at any time upon the surrender of the shares pledged for the loan. L^ii^eudmeut ap- proved Jt ebruary 25, 1897. Chapter XxXiil.] The original of this section was a new section adopted in 1691; Stats 1891, p. 255. § 639. Whenever any member shall be six months in arrears in the payment of his dues upon free shares, the secretary shall give him notice thereof, in writing, and a statement of his arrearages, by mailing the same to him at the last postotfice address given by him to the association, and if he shall not pay the same within two months thereafter, the board of directors may, ai their option, declare his shares forfeited; and at the time of such forfeiture, the withdrawal value thereof shall be determined and stated, and the defaulting member shall be entitled to w^ithdraw the same without interest, upon such notice as shall be required of a withdrawing shareholder. Whenever a borrowing member shall be six months in arrears in the payment of his dues, or interest, or premium, the whole loan shall become due at the option of the board of directors; and they may proceed to enforce collection upon the securities held by the association. The with- drawal value, at the time of the commencement of the action, of all shares pledged as collateral security for the loan, shall be applied to the pay- Civ. Code.— 18. §§ 640-642 LAND AND BUILDING CORPORATIONS. 206 ment of the loan, aud said shares, from that time, shall be deemed surrendered to the associaiioii. LNew section added March 31, 181)1; Stats. 1801, p. 255. In effect immediately.] In the same statute the original section was re- pealed, Stats. 18U1, p. 252, sec. 1, with the follow- ing proviso: Provided, however, that so far as the said sections relate to and govern building and loan associations heretofore incorporated and do- ing business under the Civil Code, the snid sec- tions shall continue in full force and validity. This title is principally drawn from Stats. 18G1, 5G7. § 640. May buy real estate. Any such associa- tion mny purchase at any sale, public or private, any real estate upon which it may have a mort- gage, judgment, lien, or other encumbrance, or in which it mny have an interest; and may sell, con- vey, lease, or mortgage the same, at pleasure, to anj' person or persons. [New section added March 31, 1801; Stats. 1891, p. 255. In effect immedi- ately.] The original section was repealed in the same act: Stats. 1891, p. 252, sec, 1; see proviso to sec. 639. § 641. Any association organized in pursuance of the provisions of this act may borrow money for the purpose of making loans or paying with- drawals. [New section added March 31, 1891; Stats. 1891, p. 255. In effect immediately.] Tlie original section was repealed: Stats. 1891, p. 252; see proviso to sec. G39, § 642. Profits and losses shall be apportioned at least annually, and shall be apportioned to all the shares in each series outstanding at the time of such apportionment, according to the actual value of such shares as distinguished from their 207 LAND AND BUILDING CORPORATIONS. §§ 643, &14 withdrawal value. [New secticn added March 31, 1891; Stats. 1S91, p. 255. In effect immediately.] The original section was repealed by the same act that added the above section: Stats. 1891, p. 252, sec. 1; see proviso to sec. 039. § 643. Membership. Any person of full age and sound mind may become a member of tlie as- sociation by talking one or more shares llierein, and subscribing to the by-laws, and annexing to his signature his postottice address, A minor may hold shares in the name of the parent, guardian, or next friend as trustee. The shares of stoclv in any such corporation held by any person, to the vjilue of one thousand dollars, shall be exempt from execution. [Xew secticn added March 31. 1891; Stats. 1891, p. 25G. In effect immediately.] The original section was repealed by the statute adding the above section: Stats. 1891, p. 252; see proviso under sec. 639. § 644. Annual report. Every association or- ganized under the provisions of this act, and every other association doing a like business, shall an- nually make a full report, in writing, of the affairs and condition of such corporation, within thirty dnys after its annual meeting, to the bank com- missioners of this State. Such report shall be verified by the oath of the officers making the same, and a copy of the same shall be delivered to every stockholder, from the office of the corpora- tion, who may call for such report. Every association shall make any further reports which the said commissioners may require, and in such form and as to such mat- ters relating to the condition and conduct- ing of the business of the association as such connnissioners may designnte; and said bank com- missioners may at any time examine into the af- fairs of any and every of said associations. Any § 645 LAND AND BUILDING CORPORATIONS. 208 willful false swearing in making and verifying said reports shall be deemed perjury. Any such association which shall fail to furnish the bank commissioners any such report required, within thirty days after demand, shall forfeit the sum of ten dollars per day for every day such report shall be delayed or withheld, which may be recovered in an action brought by the attorney general in the name of the people of this State, and all moneys so recovered shall be paid to the Treas- urer of the State, who shall pay the same into the "bank commissioners' fund." The State Bank Commissioners shall annually publish a full re- port of the condition of all associations formed under the provisions of this title, and every other association doing a lil^e business in this State, in the same manner as they are now required to do in reference to savings banks. [New section added March 31, 1891; Stats. 1891, p. 25G. In effect im- mediately.] The original section was repealed by the act adding the above section: Stats. 1891, p. 252, sec. 1; see proviso under sec. 639. See also Stats. 18G7-8, 539, sec. 1. § 645. No mutual building and loan association, or company, association, or corporation organized under the laws of any other State or territory, to carry on a business of a like character to that autliorized by this title, shall be allowed to do busi- iness or to sell their stock in this State without first having deposited with the State Controller or Secretary of Stntetlie sum of fifty thousand dollars in money, or United States or municipal bonds of this Stnte, or in mortgages upon real estate located within this State, as a guaranty fund for the pro- tection and indemnity of residents of the state of California with whom such companies, associa- tions, or corporations shall do business: the fund so deposited to be paid by the custodian thereof 209 LAND AND BUILDING CORPORATIONS. § 646 to the residents of Califoruia only, and not then until proof of claim by liual judj^ment has been filed with the custodian of said fund against such foreign company, association, or corporation. Any of the securities so deposited may be withdrawn at any time upon others, herein provided for, of like amount being substituted in lieu thereof. Any person or persons who shall be found in this State as agent, or in any other capacity, representing such foreign company, association, or corporation which has not complied with the provisions of this section shall be deemed guilty of a misde- meanor, and upon conviction shall be punished by a fine of not exceeding one thousand dollars or by im]}risonment in the county jail not exceeding twelve months, or by both such fine and imprison- ment. [New secticn added March 31, 1891; Stats. 1801, p. 2.j(). In effect immediately.] Q'he original section was repealed by the statute adding the above section: Stats. 1891, p. 252, sec. 1; see proviso, note to sec. G39. § 646. Any building and loan association, now existing and heretofore incorporated, desiring to continue its existence under the provisions of this title, maj' do so if tlie holders of a majority of the stock, at their regular annual meeting, or at a spe- cial meeting of the stock liolders called for that purpose, sliall so elect. Tlie notice of the meeting, wlietlier regular or special, shall state as one of the objects of the meeting to vote on the question wiiether the corporation shall continue its exist- ence under the provisions of this title; and the notice of meeting shall be published ris required by section three hundred and one; and, in addi- tion thereto a similar notice shall be mailed to each stockholder at his postofHce address. Within thirty days after the holders of a majority of the stock at any such meeting have voted to continue the existence of the corporation under the provis §§ 647, 648 LAND AND BUILDING CORPORATIONS. 210 ions of this title, the secretary of tlie corporation shall, under calh, make and subscribe, as such secretary, a certiticate, in ^vriiiug-, stating the call- ing of such meeting, the fact that the holders of a majority of the stocli voted to continue the ex- istence of the corpcration under this title, which shall be filed in the office of the count}' clerk in which its original articles of incorporation have been tiled, and shall tile in the office of the Secre- tary of State a certified copy thereof, according to the provisions of section two hundred and ninety- six; and the Stcretary cf State hhall issue h s usual certificate, as provided in said section. Thereupon, such corporation shall be subject to all the pro- visions of this title, as though originally incorpo- rated under the provisions hereof, except that no change in its name or amount of capital stock shall be made; but the name shall be the same as con- tained in the original articles. [New section added March 31, 1891; Stats. 1891, p. 257. In effect im- mediately.] § 646 was repealed by act approved March 30, 1874, in effect July 1. 1874. § 647. All corporations doing the business of building and loan associations in this State shall be subject to the provisions of this title relating to the bank commissioners. [New section added March 31, 1891; Stats. 1891, p. 257. In effect im- mediately.] The original section was repealed by the statute adding the above section: Stats. 1891, p. 252, sec. 1; see proviso, note to sec. 639. § 648. The name "building and loan associa- tion," as used in this act, shall include all corpo- rations, societies, or organizations or associations doing a savings and loan or investment business on the building-society plan, viz.: loaning its funds 211 COLLEGES AND SEMINARIES. §§ 648V2. 649 to its members or its sliarebolders, and whether issuing certitieiites of stcclj: which mature at a time tixed in advance or not. L^^ew section added March 31, 1891; Stats. 1891, p. 257. In effect im- mediately.] § 648^,o. The provisions of an act entitled "An act imposing a tax on the issue of certificates of stocli corporations,'" approved April first, eighteen hundred and seventy-eight, shall not be deemed and held to be applicable to any certificates is- sued to and transferred by the members or stock- holders of any association organized under or gov- erned by this act. [Xew section added March 31, 1891; Stats. 1891, p. 257. In effect immediately.] TITLE XYII. COLLEGES AND SEMINARIES OF LEARNING. § 619. Articles cf incorporation. § 650. Eoard of tiustees. § 651. Existing institutions. § 649. Any number of persons who may desire to establish a college or seminary of learning may incorporate themselves as provided in this part, except that in lieu of the requirements of section two hundred and ninety, the articles of incorpora- tion shall contain: 1. The name of the corporation; 2. Tlie puri:ose for which it is organized; 3. The place where the college or seminary is to be conducted; 4. The number of its trustees, which shall not be less than five nor more than fifteen, and the names and residences of the trustees. The term for which the trustees named and their successors are to hold office mny also be stated. If it is de- sired that the trustees, or any portion of them, § 650 COLLEGES AND SEMINARIES. 212 shall belong to any organization, society, or church, such limitation shall be stated; 5. The names of those who have subscribed money or property to assist in founding the sem- inary or college, together with the amount of money and description of property subscribed. [Approved March 14, 1885; Stats. 1885, 133. In effect March 14, 1885.] § 650. Unless otherwise provided in the articles of incorporation the board of trustees shall, as soon as organized, so classify themselves that one- fifth of their number shall go out of office every yaav, and thereafter the trustees shall hold office for five years. A majority of the trustees sliall constitute a quorum lor tne transaction of busi- ness, and the office of the corporation shall be at the college or seminary. The trustees shall have power: 1. To elect, by ballot, annually one of their number as president of the board; 2. Upon the death, removal out of the State, or other vacancy in the office, or expiration of the term of any trustee, to elect another in his place; provided, that where there are graduates of the Institution, such graduates may, under such rules as the board shall prescribe, nominate persons to fill vacancies in the board of trustees. Such nomi- nations shall be considered by the board, but it may reject any or all such nominations, and of its owm motion appoint others; 3. To elect additional trustees; provided, the whole number elected shall never exceed fifteen at any one time; 4. To declare vacant the seat of any trustee who shall absent himself from eight succeeding meetings of the board; 5. To receive and hold, by purchase, gift, de- vise, bequest, or grant, real or personal property 213 COLLEGES AND SEMINARIES. § 651 for educational purposes connected with the cor- poration, or for the benefit of the institution; G. To sell, mortgage, lease, and otherwise use and dispose of the property of the corporation in such manner as th«'y shall deem most conducive to the prosperity of the corporation; 7. To direct and prescribe the course of study and discipline to be observed in the college or seminary; 8. To appoint a president of the college or sem- inary, who shall hold his office during the pleas- ure of the trustees; 9. To appoint such professors, tutors, and other officers as they shall deem necessary, wlio shall hold their offices during the pleasure of the trus- tees; 10. To grant such literary honors as are usually granted by any university, college, or seminary of learning in the United States, and in testimony thereof to give suitable diplomas under their seal, and the signature of such officers of the corpora- tion and the institution as they shall deem expedi- ent; 11. To fix salaries of the president, professors, and other officers and employees of the college or seminary; 12. To make all by-laws and ordinances neces- sary and proper to carry into effect tlie preceding powers and necessary to advnnce tlie interests of the college or seminary; provided, that no by-laws or ordinance shall conflict with the Constitution or laws of tlie United States, or of this State. [Approved March 14. 1885; Stats. 1885, 133. In effect March 14, 1885.] § 651. Any educational corporation, or body clniming to be such, now existing, may, by a un- animous vote of those of its trustees present at p spprinl meeting cnlled for that purpose, and of which due notice shall be given to each trustee, convey all its property, rights, and franchises to § 652 CONSOLIDATION OF COLLEGES, ETC. 214 a corporation organized under this title. The fact that due notice of the meeting was given to each trustee shall be conciusivelj' proven by the entries in the minutes of the corporation or body making the conveyance. Said minutes shall be certified to be correct by the president and secretary. [Ap- proved March 14, 1885; Stats. 1885, 133. In ef- fect March 14, 1885.] TITLE XVIII. CONSOLIDATION OF COLLEGES AND INSTITUTIONS OF HIGHER EDUCATION. (New title added February 23, 1893, Stats. 1893, p, 4. In ef- fect immediately. § C52. Societies and organizations authorized to consolidate. § 653. Transfer of property. § 652. Societies and organizations authorized to consolidate. Whenever any benevolent, reli- gious, or fraternal organization or society, having a grand lodge, assembly, conference, or other leg- islative or representative head in the State of Cal- ifornia, having two or more colleges or institutions of higher education under its patronage, shall, for the purpose of greater elficiency and simplicity in the administration of its educational interests, de- sire to consolidate such institutions under one management, such organization or society shall be and is authorized to consolidate such institutions under one management by complying with the fol- lowing provisions: — First. Such grand lodge, assembly, conference, or other legislative or representative head having authorized a consolidation of its institutions, a new corporation shall be formed. The board of trustees of the new corporation shall at first con- sist of the persons constituting the boards of trus- tees of the several institutions, respectively, thus consolidated, and others; provided, the number of 215 CONSOLIDATION OF COLLEGES, ETC. § 653 trustees shall not exceed forty-five. The board of trustees :;Liall be so classified that the term of ofiiee of oue-tliird of its number shall expire each year; the successors of such trustees, as their terms expire, shall be elected by such grand lodge, asseml)ly, conference, or other legislative or rep- resentative head at its annual meeting. Second. The said board of trustees shall repoit annually to the grand lodge, assembly, conference, or other legislative or representative head control- ling it, the condition of affairs of such corpora- tion and the amount and manner of its receipts and expenditures. § 653. The several boards of trustees of the in- stitutions thus consolidated shall be and are here- by authorized and directed to transfer all property, real and personal, held by them, to the new corpo- ration, as herein constituted, together with all powers, privileges, and authority conferred upon or enjoyed by them under their respective charters or acts of incorporation. The new corporation re- ceiving such property shall assume all indebted- ness and liabilities of such institutions as are thus consolidated, but shall not transfer such property from one location to another, except by an affirma- tive vote of not less than three-fourths of the said board of trustees of the new corporation, nor di- vert specific grants, donations, or bequests from the purposes for which such grants, donations, or bequests were made. That after the boards of trustees have conveyed the property, real and per- sonal, of the various institutions to the new corpo- ration, as hereinabove provided, and the same has been accepted by the said new corporation, then the franchises held by the corporations thus con- solidating shall cense, and the said corporations shall be thereby dissolved. [Amendment ap- proved March 9, 1895; Stats. 1895, p. 3G. In effect in sixty days.] DIVISION SECOND. Part I. Property in General, §§ 654- 749. II. Ileal or Immovable Property, §§ 755-940. III. Personal or Movable Property, §§ 953-994. TV. Acquisition of Property, §§ 1000-1422. Civ. Code.— 19. PART I. PROrERTY IN GENERAL. Title I. Nature of Property, §§ G54-GG3. 11. Owuersliip, §§ (J()U-742. III. General Detiuitious, §§ 748-749. TITLE I. NATURE OF PROPERTY. § 6o4. Property, what. § 6.00. In what property may exist. § 656. %\ ild animals. § G57. Real and personal. § 6n8. R al property. § 6o9. Land. § 6t.O. Fixtures?. § 6J1. I-ixtures attached to mines. § C62. Appi'.rtenanres. § 663. Personal property. § 654. The ownership of a tbinc: is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property. As to the meaning of "property" for the purposes of taxation, see Pclit. Code, sec. 3017. Real property: See sec. G58. Personal property: See sees. GG3, Ons, et seq. Franchises as property: See sec. 388, ante. § 655. There may be ownership of all inani- mate things which are capable of appropriation or of manual delivery: of all domestic animals: of all obligations; of such products of labor or skill §§ 656-660A NATURE OF PROPERTY. 220 as the composition of an author, the goodwill of a business, trademarlis and signs, and of rights created or granted by statute. Counterfeiting a trademark, a misdemeanor; Penal Code, sec. 350. Products of the mind: See sees. 980, post, et seq. Trademarks: See sec. 991, post. Goodwill: See sec. 993, post. Title deeds: See sec. 994, post. Domestic animals, larceny of: See Penal Code, sec. 491. § 656. Animals wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in ihe possession, or disabled and immediately pursued. § 657. Property is either: 1. Real or immovable; or, 2. Personal or movable. § 658. Real or immovable property consists of: 1. Land; 2. That which is affixed to land; 3. That which is incidental or appurtenant to land; 4. That which is immovable by law. - Land defined: See sec. 659, infra. Fixtures: See sec. GGO, infra, et seq. Appurtenances: See sec. 6(32. § 659. Land is the solid material of the earth, whatever may be the ingredients of wliich it is composed, whether soil, rock, or other substance. § 660. A thing is deemed to be affixed to land when it is attached to it by roots as in the case of trees, vines, or shrubs, or imbedded in it, as in the case of walls; or permanently resting upon it, as 221 OWNERSHIP. §§ 631-669 in the case of buildings; or permanently attached to ^Yhat is thus permanent, as by means of ce- ment, plaster, nails, bolts, or screws. § 661. Sluice-boxes, flumes, hose, pipes, rail- way tracks, cars, blacksmith shops, mills, and all other machinery or tools used in working or de- veloping a mine, are to be deemed atfixed to the mine. § 662. A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit; as in the case of a way, or watercourse, or of a passage for light, air, or heat from or across the land of another. Easements and servitudes: See sees. 801 et seq., post. § 663. Every kind of property that is not real is personal. Personal property: See ante, sec. 14, subd. 3; and Polit. Code, sec. 3617. TITLE II. OWNERSHIP. Chapter I. Owners, §§ 009-072. II. Modifications of Ownership, §§ 678- 720. III. Rights of Owners. §§ 732-733. lY. Termination of Ownership, §§ 739-742. CHAI'TER I. OWNERS. § 6fi9. Owner. § fiTO. Property of the state. § fill. Who may own property. § C72. Aliens inheriting must claim within five years, § 669. All property has an owner, whether that owner is the State, and the property public, or the §§ 670-672 OWNERSHIP. 222 owner an individual, and the property private. The State may also bold property, as a private proprietor. § 670. The State is tlie owner of all land below tidewater, and below ordinary bish-water mark, bordering upon tide-water within the State; of all land below the water of a navigable lal^e or stream; of all property lawfully appropriated by it to its own use; of all property dedicated to the State, and all property of which there is no other owner. [Amendment approved March 30, 1874; Amendments 1873-4, p. 217. In effect July 1, 1874.] Property of the State. Polit. Code, sees. 40-44. Public lands: See Polit. Code, sees. 3395 et seq. Escheat: See post, sees. 1405, 1406. § 671. Any person, whether citizen or alien, may take bold, and dispose of property, real or personal, within this State, [Amendment ap- proved March 30, 1874; Amendments 1873-4, p. 217. In effect July 1, 1874.] Alien's right to inherit property: See sees. 1404, post, et seq. § 672. If a nonresident alien takes by succes- sion, he must appear and claim the property with- in five years from the time of succession, or be bari'ed. The property in such case is disposed of as provided in Title VIII., Part III., Code of Civil Procedure. [Sees. 12G9-1272.] 223 OWNERSHIP. §§ 678, 679 CHAPTER 11. MODIFICATIONS OF OWNERSHIP. Article I. Interests in Property. ?§ 678-703. II. Conditions of Ownership. §§ 707-711. III. Restiaints upon Alienation, §§ 715-718. IV. Accumulations, §§ 722-726. ARTICLE I. INTERESTS IN PROPERTY. § 678. Ownership, absolute or qualified. § 6,9. \Nhen absolute. § 680. \v hpu qualified. § 681. Several ownership, what. § 6s2. Ownership of several persons. § 683. Joint interest, what. § 6i4. Paitnership interest, what. § 685. Interest in common, what. § 3S6. What interests are in common. § 687. Community property. § 688. Interests as to time. § 689. Present interest, what. § 690. Future interest, what. § t91. Perpetual interest, what. § 692. Limited interest, what. § 693. Kinds of luture interests. § 694. Ve.nrd interests. § 6[5. Contingent interests. § (96. iwo or more future inter^^sts. § 697. Certain future interests not to be void. § 698. Posthumous children. § 699. Qualities of expectant estates. § 700. Same. § 701. Interests in real property. § 702. Same. § 703. \\ hat future interests are recognized. § 678. The ownership of property is either: 1. Absolute; or, 2. Qualified. § 679. The ownership of property is absolute when a single person has the absolute dominion §§ 680-685 OWNERSHIP. 224 over it, and may nse it or dispose of it according to bis pleasure, subject only to general laws. § 680. The ownership of property is qualified: 1. When it is shared with one or more persons; 2. '^^'hen the time of enjoyment is deferred or limited; 3. When the use is restricted. § 681. The ownership of property by a single person is designated as a sole or several owner- ship. § 682. The ownership of property by several persons is either: 1. Of joint interests; 2. Of partnership interests; 3. Of interests in common; 4. Of community interest of husband and wife. § 683. A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declare7. Bequests of income: See post, sees. 1357, subd. 3, 1300. Annuities: See same sections. § 725. If in either of the cases mentioned in the hist section the direction for an accumulation is for a lonj;er term than durinj»' the minority of the beneliciaries, the direction only, whether sep- arable or not from other provisions of the instru- ment, is void as respects the time beyond such minority. § 726. When a minor for whose benefit an ac- cunndation has been directed is destitute of other sutticient means of support and education, tlie proi^er court, upon application, may direct a suit- able sum to be applied thereto out of the fund. Maintenance of ward out of bis estate: See Code Civ. Proc, sees. 17U2, 1771. 231 OWNERSHIP. §§ 732-740 CHAPTER III. RIGHTS OF OWNERS. § 732, Increase of property. § 733. lu certain cases who entitled to income of property. § 732. The owner of a thing also owns all its products and accessions. Accessions to real property: See sees. 1013 et seq. Accessions to personal property: See sees. 1025 et seq. § 733. When, in consequence of a valid limita- tion of a future interest, there is a suspension of tlie power of alienation or of the ownership during the continuation of which the income is undis- posed of, and no valid direction for its accumula- tion is given, such income belongs to the persons presumptively entitled to the next eventual inter- est. CHAPTER IV. TERMINATION OF OWNERSHIP. § 739. Future interests, when defeated. § 740. Fame. § 741. Future interests, when not defeated. § 742. Same. § 739. A future interest, depending on the con- tingency of the death of any i)erson witliout suc- cessors, heirs, issue, or children, is defeated by the birth of a posthumous cliild of such person, capable of taldng by succession. Stats. IS.").'), 171. sec. 4. Posthumous children: See sec. G98. § 740. A future interest may be defeated in any manner or by any act or means which the §§ 741-749 GENERAL DEFINITIONS. 232 party creating such interest provided for or au- thorized in the creation thereof; nor is a future interest, thus liable to be defeated, to be on that ground adjudged void in its creation. § 741. No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent interest, nor by any destruction of such precedent interest by for- feiture, surrender, merger, or otherwise, except as provided by the next section, or where a forfeiture is imposed by statute as a penalty for the viola- tion thereof. See see. 7G7. § 742. No future interest, valid in its creation, is defeated by the determination of the precedent interest before the liappeuing of the contingency on which the future interest is limited to talie effect; but should such contingency afterwards happen, the future interest takes effect in the same man- ner, and to the same extent, as if the precedent interest had continued to the same period. TITLE III. GENERAL DEFINITIONS. § 748. Income, what. § 749. Time of creation, what. § 748. The income of property, as the terra is used in this part of the Code, includes the rents and profits of real property, the interest of money, dividends upon stocli, and other produce of per- sonal property. § 749. The delivery of the grant, where a limi- tation, condition, or future interest is created by grant, and tlie death of the testator, wliere it is created by will, is to be deemed the time of the creation of tlie limitation, condition, or interest, within the meaning of this part of the Code. PART II. REAL OR IMMOVABLE PROPERTY. Title I. General ProTisions, § Too. II. Estates iu Real Property, §§ TGl-811. III. Rijilits and Obligations of Owners, §§ 818- 841. IV. Uses and Trusts, §§ 847-871. V. Powers, §§ 878-940. [Repealed.] TITLE I. GENERAL PROVISIONS. Section 755. Real property, how governed. § 755. Real property within tbis State is ffov. erned by the law of this State, except wliere the title is in the United States. [Amendment ap- proved March 30, 1874. Amendments 1873-4, p. 218. In effect July 1, 1874.] Territorial jurisdiction of the State: See Polit. Code, sees. 33, 34. §§ 761-762 ESTATES IN REAL PROPERTY. 234 TITLE II. ESTATES IN REAL PROPERTY. Chapter I. Estates iu General, §§ 701-781. II. Termination of Estates, §§ 789-793. III. Servitudes, §§ 801-811. CHAPTER I. ESTATES IN GENERAL. § 761. Enumeration of estates. § 732. \\ hat estate a fee simple. § 7b3. Conditional fees and estates tail abolished. § 764. Certain remainders valid. § 765. Fieeholds. Chattels real. Chattel interests. § 766. Estates for life of a third person, when a freehold, &c. § 767. Future estates, what. § 768. Reverpirns. § 769. Ren Binders. § 770. Limitations of chattels real. § 771. Suspension by trust. § 772, Contingent remainder in fee. § 773. Remainders, future and contingent estates, how cre- ated. § 774. Limitation of successive estates for life. § 775. Remainder upcn estates for life of third person. § 776. Contingent remainder on a term of years. § 777. Remainder of estates for life. § 778. Remainder upon a contingency. § 779. Heirs of a tenant for life, when to take as pur- chasers. § 780. Constiuction of certain remainder. § 781. Effect of power of appointment. § 761. Estates in real property, in respect to the duration of their enjoyment, are eitlier: 1. Estates of inlieritance or perpetual estates; 2. Estates for life; 3. Estates for years; or, 4. Estates at will. See sec. 705. § 762. Every estate of inheritance is a fee, and every such estate, when not defeasible or condi- 235 ESTATES IN REAL PROPERTY. §§ 763-768 tional, is a fee simple, or an absolute fee. [Amendment approved March 30, 1874; Stats. 1873-4, p. 218. In effect July 1, 1874.] Transferring fee, words of inheritance not es- sential: See sec. 1072, post. Devising fee, "heirs" not essential: Sec. 1329. § 763. Estates tail are abolished, and every es- tate which would be at common law adjudged to be a fee tail is a fee simple; and if no valid re- mainder is limited thereon, is a fee simple abso- § 764. Where a remainder in fee is limited up- on any estate, which would by the common law be adjudged a fee tail, such remainder is valid as a contingent limitation upon a fee, and vests in possession on the death of the first taker, without issue Uving at the time of his death. § 765. Estates of inheritance and for life are called estates of freehold; estates for years are chattels real; and estates at will are chattel in- terests, but are not liable as such to sale on exe- cution. § 766. An estate, during the life of a third person, whetLer limited to heirs or otherwise, is a freehold. [Amendment approved March 30, 1874; Amendments 1873-4, p. 218. In effect July 1, 1874.] § 767. A future estate may be limited by the act of the party to commence in possession at a future day, either without the intervention of a precedent estate, or on the termination, by lapse of time or otherwise, of a precedent estate cre- ated at the same time. See sec. 742. § 768. A reversion is the residue of an estate left by operation of law in the grantor or his sue- §§ 769-773 ESTATES IN REAL PROPERTY. 233 cessors, or in the successors of a testator, com- mencing? in possession on tlie determination of a particular estate granted or devised. § 769. When a future estate, other than a re- version, is dependent on a precedent estate, it may- be called a remainder, and may he created and transferred by that name. § 770. The absolute ownership of a term of years cannot be suspended for a longer period than the absolute power of alienation can be sus- pended in restiect to a fee. [Amendment, approved March 30, 1874; Amendments 1873-4, p. 218. m effect July 1, 1874.] § 771. The suspension of all power to alienate the subject of a trust, other than a power to ex- change it for other property to be held upon the same trust, or to sell it and reinvest the proceeds to be held upon the same trust, is a suspension of the power of alienation, within the meaning of section 715. § 772. A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty- one ye; rs, or ui on any oilier ccutingenry by which the estate of such persons may be determined be- fore they attain majority. § 773. Subject to the rules of this title, and of Part I. of this division, a freehold estate, as well as a chattel real, may be created to commence at a future day; an estate for life may be created in a term of years, and a remainder limited there- on; a remainder of a freehold or chattel real, either contingent or vested, may be created, ex- pectant on the determination of a term of years; and a fee may be limited on a fee upon a contin- 237 ESTATES IN REAL PROPERTY. §§ 774-779 gency, which, if it should occur, must happen within the period prescribed in this title. § 774. Successive estates for life cannot be lim- ited, except to persons in being at the creation thereof, and all life estates subsequent to those of persons in being are void; and upon the death of those persons the remainder, if valid in its crea- tion, tal^es effect in the same manner as if no other life estate had been created. [Amendment approved March 30, 1874; Amendments 1873-4. In effect July 1, 1874.] § 775. No remainder can be created upon suc- cessive estates for life, provided for in the preced- ing section, unless such rem.-iinder is in fee; nor can a remainder be created upon such estate in a term for years, unless it is for tlie whole residue of such term. [Amendment approved March 30, 1874: Amendments 1873-4, p. 219. In effect July 1, 1874.] § 776. A contingent remainder cannot be cre- ated on a term of years, unless the nature of the contingency on which it is limited is such that the remainder must vest in interest during the continuance or at the termination of lives in be- ing at the creation of such remainder. § 777. No estate for life can be limited as a re- mainder on a term of years, except to a person in being at the creation of such estate. § 778. A remainder may be limited on a con- tincrency whir-h. in case it should happen, will operate to abridge or determine the precedent es- tate: and every such remainder is to be deemed a conditional limitation. See sec. 780, infra. § 779. When a remainder is limited to the §§ 780-790 ESTATES IN REAL PROPERTY. 238 heirs, or heirs of the body, of a person to whom a life estate in the same property is given, the per- sons who, on the termination of the life estate, are the successors or heirs of the body of the owner for lite, are entitled to take by virtue of the remainder so limited to them, and not as mere successors of the owner for life. § 780. When a remainder on an estate for life or for years is not limited on a contingency de- feating or avoiding such precedent estate, it is to be deemed intended to tal^e effect only on the death of the first taker, or the expiration, by lapsie of time, of such term of years. § 781. A general or special power of appoint- ment does not prevent the vesting of a future es- tate limited to take effect in case such power is not executed. CnAFTER II. TERMINATION OF ESTATES. § 789. Tenancy at will may be terminated by notice. § 700. Effect cf notice. § 791. Re-entry, when and how to be made. § 7P2. ?umn:ary proceedings in certain cases provided for. § 793. Notice not necessary before action. § 789. A tenancy or other estate at will, how- ever created, may be terminated by the landlord's giving notice in writing to the tenant, in the man- ner prescribed by section 11G2 of the Code of Civil Procedure, to remove from the premises within a period of not less than one month to be specified in the notice. Changing terms of tenancy: See sec. 827, post. § 790. After such notice has been served, and the period specified by such notice has expired, but not before, the landlord may re-enter, or pro- ceed according to law to recover possession. 239 ESTATES IX REAL PROPERTY. §§ 791-801 § 791. Whenever the right of re-entry is given to a grantor or lessor in any grant or lease, or otherwit^e, such re-entry may be made at any time after the right has accrued upon three days' no- tice, as provided in sections llGl and 1102, Code of Civil Procedure. § 792. Summary proceedings for obtaining pos- session of real property forcibly entered, or for- cibly and unlawfully detained, are provided for in sections 1159 to 1175, both inclusive, of the Code of Civil Procedure. § 793. An action for the possession of real property leased or granted, with a right of re- entry, may be maintained at any time, in the dis- trict court, after the right to re-enter has accrued, without the notice prescribed in section 791. CHAPTER III. SERVITUDES. § SOI. Servitudes attached to land. § 802. Servitudes not attached to land. § 80"]. Designaiicn of estates. § 804. By whom grantable. § 805. By whom held. § 806. Extent of servitudes. § 8^7. Apportioning easfments. § 808. Rights of owner of future estate. § 809. Actions by- owner and occupant of dominant tene- ment. § 810. Actions by owner of servient tenement. § 811. How extinguished. § 801. The following land burdens, or servi- tudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements: 1. The right of pasture; 2. 1'he right of Gshing; 3. The right of taking game; § 802 ESTATES IN REAL PROPERTY. 240 4. The right of way; 5. The right of talking water, wood, minerals, and other things; 6. The right of transacting business upon land; 7. The right of conducting lawful sports upon land; 8. The right of receiving air, light, or heat from or over, or discharging the same upon or over land; 9. The right of receiving water from or dis- charging the same upon land; 10. The right of flooding land; 11. The right of having water flow without diminution or disturbance of any kind; 12. The right of using a wall as a party wall; 13. The right of receiving more than natural support from adjacent land or things aflixed there- to; 14. The right of having the whole of a division fence maintained by a coterminous owner; 15. The right of having public conveyances stopped, or of stopping the same on land; 16. The right of a seat in church; 17. The right of burial. See post, sees. 832, 841, 1104, 1410 et seq.; ante, sees. 552. COS. § 802. The following land burdens or servi- tudes upon land, may be granted and held, though not attached to land: 1. The right to pasture, and of fishing and tak- ing game; 2. The right of a seat in church; 3. The right of burial; 4. The right of talving rents and tolls; 5. The rigbt of way; 6. The right of taking water, wood, minerals, or other things. [Amendment approved March 30, 1874; Amendments 1873-4, p. 219. In effect imme- diately.] 241 ESTATES IN REAL PROPERTY. §§ 803-810 § 803. The land to which an easement is at- tached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement. § 804. A servitude can be created only by one who has a vested estate in the servient tenement. § 805. A servitude thereon cannot be held by the owner of the servient tenement. Servitude is extinguished by vesting of right to the servitude and the right to the servient tene- ment in the same person: See sec. 811. § 806. The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. § 807. In case of partition of the dominant ten- ement, the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement. § 808. The owner of a future estate in a domi- nant tenement may use easements attached there- to for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is oc- cupied by a tenant. § 809. The owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an ease- ment attached thereto. Enforcement of easement by injunction: See High on Injunctions, sees. 485 et seq. § 810. The owner in fee of a servient tenement may maintain an action for the possession of the land, against any one unlawfully possessed there- Civ. Code.-21. § 811 RIGHTS, ETC., OF OWNERS. 242 of, tbongb a servitude exists thereon in favor of the public. § 811. A servitufle is exting-uisbed: 1. By tbe vestinp: of tlie right to the servitude and the right to the servient tenement in the same person; 2. By tlie destruction of the servient tenement; 3. By tlie ])erformance of any act upon eitlier tenement, by the owner of tlie servitude, or \vitb bis assent, which is incompatible with its nature or exercise; or, 4. ^^'hen tlie servitude was acquired by enjoy- ment, by disuse thereot by the owner of the ser- vitude for the period prescribed for acquiring title by enjoyment. Extinguishment of servitude.— Subd. 1. Vesting of right to servitude and riglit to servient tene- ment in same person: See sec. 805, ante. TITLE III. RIGHTS AND OBLIGATIONS OF OWNERS. Chapter I. Rights of Owners, §§ 818-834. II. Obligations of Owners, §§ 840-841. CHArTER I. RIGHTS OF OWNERS. Article I. Incidents of Ownership, §§ 818-827. II. Boundaiies, §§ 829-834. ARTICLE I. INCIDENTS OF OWNERSHIP. § 818. Rights of terant for life. § S19. Rights of tenant for years, &c. § 820. Same. 243 RIGHTS, ETC., OF OWNERS. §§ 818-822 § 821. Rights of grantees of rents and reversions. § 822. Liabi.ity of assigns of lessee. § 823. R. gilts of lessees and thtir assigns, &c. § 824. Remedy on leases for life. § 825. Rent dependent on life. § 8-ti. Remedy of reversioners, «S:c. § 8^7. Teims of lease may be changed by notice. § 818. The owner of a life estate mny use the land in tlie same manner as the owner of a fee simple, except that he must do no act to the in- jury of the inheritance. Duties of tenants for life: See sec. 840, post. § 819. A tenant for years or at will, unless he is a wroniidcer by holdin.u- over, may occupy the buildin.crs, take the annual products of the soil, work mines nnd quarries open at the commence- ment of his tenancy. § 820. A tenant for years or at will has no other rijrhts to the property than such as are given to him by the a^reemeut or instrument by which his tenancy is acquired, or by the last sec- tion. § 821. A person to Tvhora any real property is transferred or devised, upon which rent has been reserved, or to whom any such rent is transferred, is entitled to the same remedies for recovery of rent, for nonperformance of any of the terms of the lease, or for any waste or cause of forfeiture, as his grantor or devisor might have had. Grants of rent are not binding upon the tenant until he has notice thereof: Sec. 1111, post. Hiring of real property generally: See sees. 1941 et seq. § 822. "Whatever remedies the lessor of any real property [has] against his immpdiate lessee for the breach of any agreement in the lease, or for recovery of the possession, he has against the §§ 623-827 RIGHTS, ETC., OF OWNERS. 244 assignees of the lessee, for any cause of action ac- cruing wliile tlie3' are such assignees, except -uhere tlie assignment is made by way of security for a loan, and is not accompanied by possession of the premises. [Amendment approved March 30, 1874; Amendments 1873-4, p. 219. In effect July 1, 1S74.1 § 823. Whatever remedies the lessee of any real property may have against his immediate lessor, for the breach of any agreement in the lease, he may have against the assigns of the lessor, and the assigns of the lessee may have against the lessor and his assigns, except upon covenants against incumbrances or relating to the title or possession of the premises. § 824. Rent due upon a lease for life may be recovered in the same manner as upon a lease for years. § 825. Rent dependent on the life of a person may be recovered after as well as before his death. § 826. A person having an estate in fee, in re- mainder or revision, may maintain an action for any injury done to the inlieritance, notwithstand- ing an intervening estate for life or years, and al- though, after its commission, his estate is trans- ferred, and he has no interest in the property at the commencement of the action. § 827. In all leases of lands or tenements, or of any interest tlierein, from month to month, the landlord may, upon giving notice in writing at least tifteen days before the expiration of the month, cliange the terms of the lease to take ef- fect at the expiration of tlie mouth. The notice, when served upon the tenant, sliall of itself oper- ate and be effectual to create and establish, as a 245 RIGHTS, ETC., OF OWNERS. §§ 829-831 part of the lease, the terms, rent, and conditions specitied in the notice, if the tenant shall continue to hold the premises after the expiration of the mouth. [Amendment approved March 27, 1874; Amendments 187o-4. p. 22U. In effect July 1, 1874.1 Termination of tenancy at ^Yill: See sec. 789, ante. ARTICLE II. BOUNDARIES. § 829. Rights of owner. § 830. LoLudaiies by water. § Wl. Boui.daries by way.s. § 802. Lattiai and subjacent support. § 8;i3. Trees whose truuks aie wholly on land of one. § S6i. Line irees. § 829. The OTrner of land in fee has the right to tlie surface and to everything permanently sit- uated beneath or above it. § 830. Except v^'here tlio grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide- water, takes to ordinary higli-water marl^; when it borders upon a navigable lal^e or stream, where there is no tide, the owner takes to the edge of the Inke or stream, at low-waier mark; wlien it borders ui)on any otlier water, tlie owner takes to tlie middle of tlie lake or stream. [Amendment approved March .30, 1874: Amendments 1873-4; p. 220. In effect July 1, 1874.] Navigable waters boundaries. — Navigable wa- ters enumerated: See Polit. Code, sees. 2348, 2349. § 831. An owner of land bounded by a road or street is presumed to own to the center of lue way, but the contrary may be shown. See post, sec. 1112. §§ 832-841 RIGHTS, ETC., OF OWNERS. 246 § 832. Each coterminous owner is entitled to the hiteral and subjacent support which his kind receives from the adjoining hind, subject to the right of the owner of the adjoining hind to malie proper and usual excavations on the same for pur- poses of construction, on using ordinary care and skill, and taking reasonable precautions to sus- tain the land of the other, and giving previous rea- sonable notice to the other of his intention to make such excavations. [Amendment approved March 30, 1874; Amendments 1873-4, p. 221. In effect July 1, 1874.] § 833. Trees whose trunks stand wholly upou the land of one owner belong exclusively to him, although their roots grow into the land of an- other. § 834. Trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common. CHAPTER II. OBLIGATIONS OF OWNERS. § 840. Duties of tenant for life. § 841. MoLuments and fences. § 840. The owner of a life estate must keep the buildings and fences in repair from ordinary waste, and must pay the taxes and other annual charges, aud a just proportion of extraordinary assessments benefiting the whole inheritance. Rights of tenants for life: See sec. 818, ante. Decree declaring life estate terminated: Code Civ. Proc, sec. 1723. § 841. Coterminous owners are mutually bound equally to maintain: 1. The boundaries and monuments between them: 247 USES AND TRUSTS. § 847 2. The fences between them, unless one of them chooses to let his laud lie without fencing; in which case, if he afterwards incloses it. he must refund to the other a just proportion of the value at that time, of any division fence made by the latter. TITLE IV. USES AND TRUSTS. § 847. What uses and trusts may exist. § 848. Right to rossession of land creates legal ownership. (Rppeal-d.) § 8 '9. Ceitain trusts unaffected, f Repealed.) § 850. Trustees of estate for use of another take no interest. (Rfp rl d.) § 851. Precedng sections qualified. (Repealed.) § 852. Trust must be in wiiting. § 853. Transfer to one for money paid by another. § 854. Rights of creditors. (Repealed.) § 8".o. Section 853 qualified. (Repealed.) § 856. Purchasers protected. § 857. For what purposes express trusts may be created. § 858. Certain devises in trust to be deemed powers. § 859. Profits of land liable to creditors in certain cases. § SCO. Powers, execution of. § 861. Creation of certain powers not prohibited. (Re- pealed.) § 862. And land, &c., to descend to persons entitled. (Re- pealed.) $ 863. Trustees of express trusts to have whole estate. § 8^. Author of trust may devise, &c. § 8?5. Title of grantor of trust property. § 866. Interests remaining in grantor of express trust. § 867. Powers over trust of party interested. § 868. Same. § 869. Effect of omitting trust in conveyance. § 870. Certain pales, &c., by trustees, void. § 871. When estate of trustee to cease. § 847. Fses and trusts in relation to real prop- erty are those only which are specified in this title. Kules as to suspending power of alienation: Sees. 715, TIG, 771, ante. Trusts for accumulation of income: Sees, 722- 726. ante. §§ 848-857 USES AND TRUSTS. 248 Trusts in general: Sees. 2215-2224, post. Trusts for third persons: Sees. 2250-2289, post. §§ 848, 849, 850, 851. [Repealed March 30, 1874; Amendments 1873-4, 221. In effect July 1, 1874.] § 852. No trust in relation to real property is valid unless created or declared: 1. By a written instrument, subscribed by the trustee, or by his agent thereto authorized by writing; 2. By the instrument under which the trustee claims the estate atl'ected; or, 3. By operation of law. Trust for the benefit of third person, how cre- ated. Sees. 2259-2289. § 853. "When a transfer of real property is made to one person, and the consideration tliereof is paid by or for another, a trust is presumed to result in favor of the person by or for wliom such payment is made. [Amendment approved March 30, 1874; Amendments 1873-4, p. 221. In effect July 1, 1874.] §§ 854, 855. [Repealed March 30, 1874; Amend- ments 1873-4, 221. In effect July 1, 1874.] § 856. No implied or resulting trust can preju- dice the rights of a purchaser or encumbrancer of real property for value and without notice of the trust. See SGC. 2243. Bona fide purchasers generally: See sec. 1214. § 857. Express trusts may be created for any of the following purposes: 1. To sell real property, and apply or dispose of the proceeds in accordance with the instru- meut creating the trust; 2. To mortgage or lease real property for the 249 USES AND TRUSTS. §§ 858-860 benefit of annuitants or other legatees, or for the purpose of satisfying any charge thereon; 3. To receive tlie rents and profits of real prop- erty, and pay them to or apply tliem to the use of any person, whether ascertained at the time of the creation of tlie trust or not, for himself or for his family, during tlie life of such person, or for any shorter term, subject to the rules of Title II. of this part; or, 4. To receive the rents and profits of real prop- erty, and to accumulate the same for the purposes and within the limits prescribed by the same title. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 221. In effect July 1, 1874.] See sec. 859. Estate of trustee: See infra, sec. 8G3. § 858. Where a power to sell real property is given to a mortgagee, or other encumbrancer in an instrument intended to secure the payment of money, the power is to be deemed a part of the security, and vests in any person who, by assign- ment, becomes entitled to the money so secured to be paid, and may be executed by him whenever the assignment is duly aclcnowledged and record- ed [Xew^ section approved March 30, 1874; Amendments 1873-4, p. 222. In effect July 1, 1874.] § 859. Where a trust is created to receive the rents and profits of real property, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for tlie education and support of the person for whose benefit the trust is created, is liable to the claims of the creditors of such per- son, in the same manner as personal property which cannot be reached by execution. § 860. Where a power is vested in several per- §§ S61-866 USES AND TRUSTS. 250 sons, all must unite in its execution; but in case any one or more of tliem is dead, the power may be executed by the survivor or survivors, unless otherwise prescribed by the terms of the power. [New section approved March 30, 1874; Amend- ments 1873-4, p. 222. In effect July 1, 1874.] Death of cotrustee, the trust survives to the oth- ers: Sec. 2288, post. §§ 861, 862. [Repealed March 30, 1874; Amend- ments 1S73-4, 222. In effect July 1, 1874,] § 863. Except as hereinafter otherwise provid- ed, every express trust in real property, valid as such in its creation vests the whole estate in the trustees, subject only to the execution of the trust. The beneficiaries talie no estate or interest in the property, but may enforce the performance of the trust. Enforcing performance of the trust: See post, "Obligation of Trustees," sees. 2228-2239, and sees. 2258-l:^u3. § 864. Notwithstanding anything contained in the last section, the author of a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong, in the event of the failure or termination of the trust, and may transfer or devise such property, subject to the execution of the trust. § 865, The grantee or devisee of real property subject to a trust acquires a legal estate in the property, as against all persons except the trustees and those lawfully claiming under them. § 866. "Where an express trust is created in re- lation to real property, every estate not embraced in the trust, and not otherwise disposed of, is left in the author of the trust or his successors. 251 USES AND TRUSTS. §§ 867-871 § 867. The beneficiary of a trust for the receipt of the rents and profits of real property, or for the payment of an annuity out of such rents and profits, may be restrained from disposing of his interest in such trust, during his life or for a term of years, by the instrument creating the trust. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 223. In effect July 1, 1874.] Accumulations: See ante, sees. 722 et seq.; sec. 859. § 868. [Repealed March 30, 1874; Amendments 1873-4, 223. In effect July 1, 1874.] § 869. Where an express trust is created in re- lation to real property, but is not contained or de- clared in the grant to the trustee, or in an instru- ment signed by him, and recorded in the same office with the grant to the trustee, such grant must be deemed absolute in favor of purchasers from such trustee without notice, and for a valua- ble consideration. [Amendments approved March 30. 1874; Amendments 1873-4, p. 223. In effect July 1, 1874.] Purchasers from trustee of express trust, when protected: See note to sec. 8G3, supra; sec. 870, infra. Purcha^^er, when charged with implied or re- sulting tru^^t: See sec. 85G, ante. § 870. Where a trust in relation to real prop- erty is expressed in the instrument creating the estate, eveiy transfer or other act of the trustees, in contravention of the trust, is absolutely void. § 871. When the purpose for which an express trust was created ceases, the estate of the trustee also ceases. POWERS. 252 TITLE V. POWERS. Title V, Part II, of Division II, on Powers, of the Civil Code, embracing sections of said Code from section 878 to 94G, inclusive, is repealed. [Approved April 30. In effect July 1, 1874.] PART III. PERSONAL OR MOVABLE PROPERTY. Title I. Personal Property in General, §§ 946-947. II. Particular Kinds of Personal Property, §§ 953-994. TITLE I. PERSONAL PROPERTY IN GENERAL. § 946. By what law governed. § 947. Future interests in perishable property, how pro- tected. (Repealed.) § 946. If there is no law to the contrary in the place Tvhere personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. § 946 having been repealed by clerical error in 1874, was re-enacted at session of 1875-6. § 947. [Repealed March 30, 1874; Amendments 1873-4, 223. In effect July 1, 1874.] Civ. Code.— 22. §§ 953-954 THINGS IN ACTION. 254 TITLE 11. PARTICULAR KINDS OF PERSONAL PROPERTY. Chapter 1. Things in action, §§ 953-954. II. Shipping, §§ 960-973. III. Products of the Mind, §§ 980-985. IV. Other Kinds of Personal Property, §§ 991-994. CHAPTER I. THINGS IN ACTION. § 953. Things in action defined. § 954. Transfer and survivorship. § 953. A thing in action is a right to recover money or other personal property by a judicial proceeding. [Amendment approved March 30, 1874; Amendments 1873-4, p. 223. In effect July 1, 1874.] § 954. A thing in action, arising out of the vio- lation of a right of property, or out of an obliga- tion, may be transferred by the owner. Upon the death of the owner it passes to his personal rep- resentatives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office. See sees. 1582, 1583. See also "Transfer of Obligations," sec. 1458, post. Suing on choses in action: See Code Civ. Proc, sees. 367-369, 1582, 1583. 255 SHIPPING. §§ 960-963 CHAPTER II. SHIPPING. Article I. General Provisions, §§ 960-966. II. Rules of Navigation, §§ 970-973. ARTICLE I. GENERAL PROVISIONS. § 960. Definition of a ship and shipping terms. § 961. Appurtenances and equipments. § 962. Foreign and domestic navigation. § 963. Foreign and domestic navigation. § 964. Several owners. § 965. Owner for voyage. § 966. Registry, &c. § 960. The term ship, or shipping, when used in this Code, includes steamboats, sailing vessels, canal boats, barges, and every structure adapted to be navigated from place to place for the trans- portation of merchandise or persons. [Amend- ment approved March 30, 1874; Amendments 1873-4, p. 224. In effect July 1, 1874.] § 961. All things, belonging to the owners, which are on board a ship, and are connected with its proper use, for the objects of the voyage and adventure in which the ship is engaged, are deem- ed its appurtenances. § 962. Ships are engaged either in foreign or domestic navigation, or in the fisheries. Ships are engaged in foreign navigation when passing to or from a foreign country; and in domestic navigation, when passing from place to place with- in the United States. § 963. A ship in a port of the State to which §§ 964-970 SHIPPING. 256 it belongs is called a domestic ship; in another port it is called a foreign ship. § 964. If a ship belong to several persons, not partners, and they differ as to its use or repair, the controversy may be determined by any court of competent jurisdiction. § 965. If the owner of a ship commits its pos- session, and navigation to another, that other, and not the owner, is responsible for its repairs and supplies. Charter party defined: See post, sec. 1959. § 966. The registry, enrollment, and license of ships are regulated by acts of Congress. ARTICLE II. RULES OF NAVIGATION. § 970. Collisions. 1. Rules as to ships meeting each other. 2. The rule for sailing vessels. 3. Rules for steamers in narrow channels. 4. Same. 5. Rules for steam vessels on different courses. 6. Meeting of steamers. § 971. Collision from breach of rules. § 972. Breaches of such rules to imply willful default. § 973. Loss, how apportioned. § 970. In the case of ships meeting, the follow- ing rules must be observed, in addition to those prescribed to that part of the Political Code which relates to navigation: 1. Whenever any ship, whether a steamer or sail- ing ship, proceeding in one direction, meets an- other ship, whether a steamer or sailing ship, pro- ceeding in another direction, so that if both ships were to continue their respective courses they would pass so near as to involve the risli of 257 SHIPPING. § 970 a collision, the helms of both ships must be put to port so as to pass on the port side of each other; and this rule applies to all steamers and all sail- ing ships, whether on the port or starboard tack, and whether close-hauled or not, except where the circumstances of the case are such as to render a departure from the rule necessary in order to avoid immediate danger, and subject also to a due regard to the dangers of navigation, and, as re- gards sailing ships on the starboard tacli close- hauled, to the keeping such ships under command; 2. In the case of sailing vessels, those having the wind fair must give way to those on a wind. When both are going by the wind, the vessel on the starboard tack must keep her wind, and the one on the larboard tack bear up strongly, pass- ing each other on the larboard hand. When both vessels have the wind large or abeam, and meet, they must pass each other in the same way on the larboard hand, to effect which two last-mentioned objects the helm must be put to port. Steam ves- sels must be regarded as vessels navigating with a fair wind, and should give way to sailing vessels on a wind of either tack; 3. A steamer navigating a narrow channel must, whenever it is safe and practicable, keep to that side of the fairway or mid channel which lies on the starboard side of the steamer; 4. A steamer when passing another steamer in such channel, must always leave the other upon the larboard side; 5. When steamers must inevitably or necessa- rily cross so near that, by continuing their respec- tive courses, there would be a risk of collision, each vessel must put her helm to port, so as al- ways to pass on the larboard side of each other; 6. The rules of this section do not apply to any case for which a different rule is provided by the regulations for the government of pilots of steam- §§ 971-973 SHIPPING. 258 ers approaching each other within sound of the steam-whistle, or by the regulations concerning lights upon steamers, prescribed under authority of the acts of Congress, approved August thir- tieth, eighteen hundred and fifty-two, and April twenty-ninth, eighteen hundred and sixty-four. For Rules of Navigation, etc., see Polit. Code, sees. 2360-2379. § 971. If it appears that a collision was occa- sioned by failure to observe any rule of the fore- going section, the owner of the ship by which such rule is infringed cannot recover compensa- tion for damages sustained by the ship in such collision, unless it appears that the circumstances of the case made a departure from the rule nec- essary. § 972. Damage to person or property arising from the failure of a ship to observe any rule of section 970, must be deemed to have been occa- sioned by the willful default of the person in charge of the decli of such ship at the time, un- less it appears that the circumstances of the case made a departure from the rule necessary. § 973. Losses caused by collision are to be borne as follows: 1. If either party was exclusively in fault he must bear his own loss, and compensate the other for any loss he has sustained; 2. If neither was in fault, the loss must be borne by him on whom it falls; 3. If both were in fault, the loss is to be equally divided, unless it appears that there was a great disparity in fault, in which case the loss must be equitably apportioned; 4. If it cannot be ascertained where the fault lies, the loss must be equally divided. 369 PRODUCTS OF THE MIND. §§ 980-983 CHAPTER III. PRODUCTS OF THE MIND. § 980. How far the subject of ownership. § 981. Joint authorship. § 982. Transfer. I 983. Effect of publication. § 984. Subsequent inventor, author, &c. § 985. Private writings. § 980. The author of any product of the mind, whether it is an invention, or a composition in let- ters or art, or a design, with or without delinea- tion, or other graphical representation, has an exclusive ownership therein, and in the represen- tation or expression thereof, which continues so long as the product and the representations or ex- pressions thereof made by him remain in his pos- session. Trademarlis: See Polit. Code, sees. 3196 et seq., and sec. 991 of this Code. § 981. Unless otherwise agreed, a product of the mind in the production of which several per- sons are jointly concerned is owned by them as follows : 1. If the product is single, in equal proportions; 2. If it is not single, in proportion to the contri- bution of each. § 982. The owner of any product of the mind, or of any representation or expression thereof, may transfer his property in the same. § 983. If the owner of a product of the mind intentionally makes it public, a copy or reproduc- tion may be made public by any person, without responsibility to the owner, so far as the law of this State is concerned. §§ 984-991 OTHER KINDS OP PERSONAL PROPERTY. 260 § 984. If the owner of a product of the mind does not make it public, any other person subse- quently and originally producing the same thing has the same right therein as the prior author, which is exclusive to the same extent against all persons except the prior author, or those claiming under him. § 985. Letters and other private communica- tions in writing belong to the person to whom they are addressed and delivered; but they can- not be published against the will of the writer, ex- cept by authority of law. CHAPTER IV. OTHER KINDS OF PERSONAL PROPERTY. § 991. Trade-marks. § 992. Goodwill of business. § 993. Same. § 994, Title deeds. § 991. One who produces or deals in a particu- lar thing, or conducts a particular business, may appropriate to his exclusive use, as a trademark, any form, symbol, or name, which has not been so appropriated by another, to designate the ori- gin or ownership thereof; but he cannot exclusive- ly appropriate any designation, or part of a desig- nation, which relates only to the name, quality, or the description of the thing or business, or the place where the thing is produced, or the business is carried on. [Amendment approved March 30, 1874; Amendments 1873-4, p. 224. In effect July 1, 1874.] As to trademarks, see Polit. Code, sees. 3196- 3198; Penal Code, sees. 350-354. Act to protect trademarks, see post. Appendix, p. 835. 261 OTHER KINDS OF PERSONAL PROPERTY. §§ 992-994 § 992. The good will of a business is the ex- pectation of continued public patronage, but it does not include a right to use the name of any person from whom it was acquired. Good will; See post, sec. 1674. § 993. The good will of a business is property, transferable like any other. § 994. Instruments essential to the title of real property, and which are not kept in a public office as a record, pursuant to law, belong to the person in whom, for the time being, such title may be vested, and pass with the title. PART IV. ACQUISITION OF PROPERTY. Title I. Modes in which Property may be Ac- quired, §§ 1000-1001. II. Occupancy, §§ 1006-1007. III. Accession, §§ 1013-1033. IV. Transfer, §§ 1039-1231. V. Homesteads, §§ 1237-1269. VI. Wills, §§ 1270-1377. VII. Succession, §§ 1383-1408. VIII. Water Rights, §§ 1410-1422. TITLE I. MODES IN WHICH PROPERTY MAY BE ACQUIRED. § 1000. Property, how acquired. § 1001. Acquisition of property by exercise of eminent do- main. § 1000. Property is acquired by: 1. Occupancy; 2. Accession; 3. Transfer; 4. Will; or. 5. Succession. § 1001. Any person may, without further legis- lative action, acquire private property for any use specified in section 1238 of the Code of Civil Pro- cedure, either by consent of the owner or by pro- ceedings had under the provisions of Title VII, 263 OCCUPANCY. §§ 1006, 1007 Part III, of the Code of Civil Procedure; and any person seeking to acquire property for any of tlie uses mentioned in such title is "an agent of the State," or a "person in charge of such use." with- in the meaning of those terms as used in such title. This section shall be in force from and after the fourth day of April, eighteen hundred and seventy-two. Eminent domain: See Code Civ. Proc, sees. 1237- 1260. TITLE II. OCCUPANCY. § 1006. Simple occupancy. I 1007. Prescription. § 1006. Occupancy for any period confers a ti- tle sufficient against all except the State and those who have title by prescription, accession, trans- fer, will, or succession. § 1007. Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all. Adverse possession passing title: See Code Civ. Proc, sec. 321. §§ 1013-1015 ACCESSION. 264 TITLE III. ACCESSION. Chapter I. To Real Property, §§ 1013-1019. II. To Personal Property, §§ 1025-1033. CHAPTER I. ACCESSION TO REAL PROPERTY. "" § 1013. Fixtures. § 1014. Alluvion. § 1015. Sudden removal of bank. § 1016. Islands, in navigable streams. § 1017. In unnavigable streams. § 1018. Islands formed by division of stream. § 1019. Wtiat fixtures tenant may remove. § 1013. When a person affixes his property to the land of another, without an agreement permit- ting him to remove it, the thing affixed, except as provided in section ten hundred and nineteen, be- longs to the owner of the land, unless he chooses to require the former to remove it. [Amendment approved March 80, 1874; Amendments 1873-4, p. 224. In effect July 1, 1874.] Fixtures: See ante, sec. 668. § 1014. Where, from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the rescission of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank. § 1015. If a river or stream, navigable or not navigable, carries away, by sudden violence, a considerable and distinguishable part of a bank, and bears it to the opposite bank, or to another 265 ACCESSION. §§ 1016-101& part of the same bank, the owner of the part car- ried away may reclaim it within a year after the owner of the land to which it has been united takes possession thereof. § 1016. Islands and accumulations of land, formed in the beds of streams which are naviga- ble, belong to the State, if there is no title or pre- scription to the contrary. § 1017. An island, or an accumulation of land, formed in a stream which is not navigable, be- longs to the owner of the shore on that side where the island or accumulation is formed; or, if not formed on one side only, to the owners of the shore on the two sides, divided by an imaginary line drawn through the middle of the river. § 1018. If a stream, navigable or not naviga- ble, in forming itself a new arm, divides itself and surrounds land belonging to the owner of the shore, and thereby forms an island, the island be- longs to such owner. § 1019. A tenant may remove from the demis- ed premises any time during the continuance of his term, anything affixed thereto for purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises. [New section approved March 30, 1874; Amendments 187.3-4, p. 224. In effect July 1. 1874.] Civ. Code.— 23. S§ 1025-1028 ACCESSION. 236 CHAPTER II. ACCESSION TO PERSONAL. PROPERTY. § 1025. Accession by uniting several things. § 1026. Principal part, what. § 1027. Same. § 1028. Uniting materials and workmanship. § 1029. Inseparable materials. § 1030. Materials of several owners. ^ 1031. Willtul trespassers. § 1032. Owner may elect between the thing and its value. § 1033. Wrongdoer liable in damages. § 1025. When things belonging to different owners have been united so as to form a single thing, and cannot be separated without injury, the whole belongs to the owner of the thing which forms the principal part; who must, however, re- imburse the value of the residue to the other own- er, or surrender the whole to him. § 1026. That part is to be deemed the principal to which the other has been united only for the use, ornament, or completion of the former, unless the latter is the more valuable, and has been unit- ed without the l^nowledge of its owner, who may, in the latter case, require it to be separated and returned to him, although some injury should re- sult to the thing to Avhich it has been united. § 1027. If neither part can be considered the principal, within the rule prescribed by the last section, the more valuable, or, if the values are nearly equal, the more considerable in bulk, is to be deemed the principal part. § 1028. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workman- ship, unless the value of the workmanship exceeds the value of the materials, in which case the thing 267 ACCESSION. §§ 1029-1032 belongs to the maker, on reimbursing the value of the materials. § 1029. Where one has made use of materials which in part belong to him and in part to an- other, in order to form a thing of a new descrip- tion, without having destroyed any of the materials, but in such a way that they cannot be separated without inconvenience, the thing formed is com- mon to both proprietors; in proportion, as respects the one, of the materials belonging to him, and as respects the other, of the materials belonging to him and the price of his worl^manship. § 1030. When a thing has been formed by the admixture of several materials of different own- ers, and neither can be considered the principal substance, an owner without whose consent the admixture was made may require a separation, if the materials can be separated without inconven- ience. If they cannot be thus separated, the own- ers acquire the thing in common, in proportion to the quantity, quality, and value of their mate- rials; but if the materials of one were far superior to those of the others, both in quantity and value, he may claim the thing on reimbursing to the others the value of their materials. § 1031. The foregoing sections of this article are not applicable to cases in which one willfully uses the materials of another without his consent; but, in such cases, the product belongs to the own- er of the material, if its identity can be traced. § 1032. In all cases where one whose material has been used without his l^nowledge, in order to form a product of a different description, can claim an interest in such product, he has an op- tion to demand either restitution of his material in kind, in the same quantity, weight, measure, §§ 1033-1039 TRANSFER. 268 and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. § 1033. One who wrongfully employs materials belonging to another is liable to him in damages, as well as under the foregoing provisions of this chapter. TITLE IV. TRANSFER. Chapter I. Transfer in General, §§ 1039-1085. II. Transfer of Real Property, §§ 1091- 1115. III. Transfer of Personal Property, §§ 1135-1153. IV. Recording Transfers of Real Prop- erty, §§ 1158-1217. V. Unlawful Transfers, §§ 1227-1231. CHAPTER I. TRANSFERS IN GENERAL. Article I. Definition of Transfer, §§ 1039-1040. II. What may be Transferred. §§ 1044-47. III. Mode of Transfer, §§ 1052-1060. IV. Interpretation of Grants, §§ 1066-1072. V. Effect of Transfer, 1083-1085. ARTICLE I. DEFINITION OF TRANSFER. § 1039. Transfer, what. § 1040. Voluntary transfer. § 1039. Transfer is an act of the parties, or of the law by which the title to property is conveyed from one living person to another. 269 TRANSFER. §§ 1040-1047 § 1040. A voluntary transfer is an executed contract, subject to all rules of law concerning contracts in general; except that a consideration is not necessary to its validity. Gifts: See sees, 1146, post, et seq. ARTICLE II. WHAT MAY BE TRANSFERRED. § 1044. What may be transferred. § 1045. Possibility. § 1043. Right of re-entry can be transferred. § 1047. Owner ousted of possession may transfer. § 1044. Property of any kind may be transfer- red, except as otherwise provided by this article. § 1045. A mere possibility, not coupled with an interest, cannot be transferred. § 1046. A right of re-entry, or of repossession for breach of condition subsequent, can be trans- ferred. § 1047. Any person claiming title to real prop- erty in the adverse possession of another may transfer it with the same effect as if in actual possession. See post, sec, 2921. 5§ 1052-1055 TRANSFER. 270 ARTICLE 111. * MODE OF TRANSFER. § 1052. When oral. § 1053. Grant, what. § 10o4. Delivery necessary. § 1055. Date. § 1056. Delivery to grantee Is necessarily absolute. § 105/. Delivery in escrow. § 1058. Surrendering or canceling grant does not reconvey. § 1059. Constructive delivery. 5 1060. Gratuitous grants take effect immediately; excep- tion. (Repealed.) § 1052. A transfer may be made without writ- ing, in every case in which a writing is not ex- pressly required by statute. What contracts must be in writing: See sec. 1624, post. Unhiwful transfers: See sees. 1227 et seq. Fraudulent instruments and transfers: See sees. 3439 et seq., post. § 1053. A transfer in writing is called a grant, or conveyance, or bill of sale. The term "grant," in this and the next two articles, includes all these instruments, unless it is specially applied to real property. [Amendment approved March 30, 1874; Amendments 1873-4, p. 225. In effect July 1, 1874.] Covenants applied from a "grant" of realty: See sec. 1113, post. § 1054. A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor. Constructive delivery: See sec. 1059, infra. Contract in writing tal^es effect only from de- livery: See post, sec. 1626. § 1055. A grant duly executed is presumed to have been delivered at its date. 271 TRANSFER. §§ 1056-1060 S 1056. A graiit cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument talies effect thereupon, discharged of any condition on which the delivery was made. § 1057. A grant may be deposited by the grant- or with a third person, to be delivered on perform- ance of a condition, and, on delivery by the de- positary, it will take effect. While in the posses- sion of the third person, and subject to condition, it is called an escrow. § 1058. Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title. Requisites of transfer of estates in real prop- erty: See sec. 1091, post. § 1059. Though a grant be not actually deliv- ered into the possession of the grantee, it is yet to be deemed constructively delivered in the fol- lowing cases: 1. Where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery; or, 2. Where it is delivered to a stranger for the benefit of the grantee, a*Qd his assent is shown, or may be presumed. § 1060. [Repealed March 30, 1874; Amend- ments 1873-4, 225. In effect July 1, 1874.] §§ 1066-1071 TRANSFER. 272 ARTICLE IV. INTERPRETATION OP GRANTS. § 1066. Grants, how interpreted. § 1067. Limitations, how controlled. § 1068. Recitals, when resorted to. § 1069. Interpretation against grantor. § 1070. Irreconcilable provisions. § 1071. Meaning of "heirs" and "issue," in certain remain- ders. § 1072. Words of inheritance unnecessary. § 1066. Grants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided in this article. Interpretation of contracts: See post, sees. 1636, 1641. § 1067. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct. § 1068. If the operative words of a grant are doubtful, recourse may be had to its recitals to assist the construction. § 1069. A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party is to be interpreted in favor of the grantor. § 1070. If several parts of a grant are absolute- ly irreconcilable, the former part prevails. § 1071. Where a future interest is limited by a grant to take effect on the death of any person without heirs, or heirs of his body, or without is- sue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor. 273 TRANSFER. §§ 1072-1085 § 1072, Words of inheritance or succession are not requisite to transfer a fee in real property. Words of inlieritance unnecessary: Stats. 1855, 171, sec. 3. A fee-simple is presumed to be intended to be conveyed, unless the contrary appears from the grant: See sec. 1105, post. Devise of fee.— Word "heirs" not necessary: Sec. 1329, post. What estate a fee: See sec. 762, ante. ARTICLE V. EFFECT OF TRANSFERS. § 1083. What title passes. § 1084. Incidents. § 10S5. Grant may inure to benefit of stranger. § 1083. A transfer vests in the transferee all the actual title to the thing transferred which the transferrer then has unless a different intention is expressed or is necessarily implied. § 1084. The transfer of a thing transfers also all its incidents, unless expressly excepted; but the transfer of an incident to a thing does not trans- fer the thing itself. See sees. 1104, 3540, post. § 1085. A present interest, and the benefit of a condition or covenant respecting property, may be talien by any natural person under a grant, although not named a party thereto. §§ 1091, 1092 TRANSFER. 274 CHAPTER II. TRANSFER OP REAL PROPERTY. Article I. Mode of Transfer, §§ 1091-1095. II. Effect of Transfer, §§ 1104-1115. ARTICLE I. MODE OF TRANSFER. § 1091. Requisites for transfer of certain estates. § 1092. Form of grant. § 1093. Grant by married women, how acknowledged. § 1094. Power of attorney of married woman, how acknowl- edged. § 1095. Attorney in fact, how must execute for principal. § 1091. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent there- unto authorized by writing. Transfer of realty: Code Civ. Proc, sees. 1971- 1974. Requisites of transfer of real property: See cor- responding section in Code of Civil Procedure, sec. 1971. See further sec. 1624, subd. 5. Conveyances by person whose name changed: See post, Appendix, p. 765. § 1092. A grant of an estate in real property may be made in substance as follows: "I, A B, grant to C D all that real property sit- uated in (insert name of county) County, State of California, bounded (or described) as follows: (here insert description, or if the land sought to be conveyed has a descriptive name, it may be de- scribed by the name, as, for instance, 'The Norris Ranch.') "Witness my hand this (insert day) day of (in- sert month), 18 — . "A B." 275 TRANSFER. §§ 1093-1095 See Act of March 11, 1874, Conveyancing by per- son who has changed his or her name, Appendix, p. 479. See sec. 1614, post. § 1093. A grant or conveyance of real proper- ty made by a married woman may be made, exe- cuted, and acknowledged in the same manner and has the same effect as if she were unmarried. [Amendment approved March 14, 1895; Stats. 1895, p. 47. In effect immediately.] Conveyance by married women: See sees. 1186, 1187, and 1191, post. § 1094. A married woman may mal^e, execute, and revolie powers of attorney for the sale, con- veyance, or incumbrance of her real or personal estate, which shall have the same effect as if she were unmarried, and may be aclinowledged in the same manner as a grant of real property. I Amendment approved March 9, 1895; Stats. 1895. p. 35. In effect in sixty days.] § 1095. When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, ;ind his own name as attorney in fact. §§ 1104-U06 TRANSFER. 276 ARTICJ.E II. EFFECT OF TRANSFER. § 1104. What easements pass witti property. § 1105. When fee simple title is presumed to pass. § 1106. Subsequently acquired title passes by operation of law. § 1107. Grant, how far conclusive on purchasers. § 1108. Conveyances by owner for life or for years. § 1109. Grant made on condition subsequent. § 1110. Grant on condition precedent. § 1111. Grant of rents, reversions, and remainders. § 1112. Boundary by highway, what passes. § 1113. Implied covenants. § 1114. What the term "incumbrances" embraces. § 1115. Lineal and collateral warranties abolished. § 1104. A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the per- son whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. Transfer carries easements: See the general sub- ject of easements, sec. 801, ante. Transfer of a thing carries its incidents: Sec. 1084, ante. § 1105. A fee simple title is presumed to be intended to pass by a grant of real property, un- less it appears from the grant that a lesser estate was intended. See sec. 1072, ante. § 1106. Where a person purports by proper in- strument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors. 277 TRANSFER. §§ U07-1111 § 1107. Every grant of an estate in real prop- erty is conclusive against the grantor, also against every one subsequently claiming under liim, ex- cept a purchaser or incumbrancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that is first duly re- corded. § 1108. A grant made by the owner of an es- tate for life or years, purporting to transfer a greater estate than he could lawfully transfer, does not worli a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer. § 1109. Where a grant is made upon condition subsequent, and is subsequently defeated by the nonperformance of the condition, the person oth- erwise entitled to hold under the grant must re- convey the property to the grantor or his succes- sors, by grant, duly acknowledged for record. Conditions: See sees. 707 et seq. Recording instruments: See sec. 1158, post. Unrecorded deed void as to subsequent bona fide purchasers: Sec. 1214, post; sec. 1107, ante. § 1110. An instrument purporting to be a grant of real property, to take effect upon condition precedent, passes the estate upon the performance of the condition. [Amendment approved March 30, 1874; Amendments 1873-4, p. 225. In effect July 1, 1874.] § 1111. Grants of rents or of reversions or of remainders are good and effectual without attorn- ments of the tenants; but no tenant who, before notice of the grant, shall have paid rent to the grantor, must suffer any damage thereby. See ante, sec. 821. Civ. Code.— 24. §§ 1112-1115 TRANSFER. 278 § 1112. A transfer of land, bounded by a high- way, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent ap- pears from the grant. [Amendment approved March 30, 1874; Amendments 1873-4, p. 225. In ef- fect July 1, 1874.] See ante. sec. 831. § 1113. From the use of the word "grant" in any conveyance by which an estate of inheritance or fee simple is to be passed, the following cove- nants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless restrained by ex- press terms contained in such conveyance: 1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; 2. That such estate is at the time of the exe- cution of such conveyance free from incumbrances done, made, or suffered by the grantor, or any per- son claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance. Stats. 1855, 171, sec. 9. Covenants running with land: See sees. 1460- 1407, post. The "usual covenants": See sec. 1733, post. § 1114. The term "incumbrances" includes taxes, assessments, and all liens upon real prop- erty. [Amendment approved March 30, 1874; Amendments 1873-4, p. 225. In effect July 1, 1874.] § 1115. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and 279 TRANSFER. §§ 1135-1140 devisees of every person who has made any cov- enant or agreement in reference to the title of, in, or to any real property, are answerable upon such covenant or agreement to the extent of the land descended or devised to them, in the cases and in the manner prescribed by law. CHAPTER III. TRANSFER OF PERSONAL PROPERTY. Article I. Mode of Transfer, §§ 1135-1136. II. What operates as a Transfer, §§ 1140-1142. III. Gifts, §§ 1146-1153. ARTICLE I. MODE OF TRANSFER. § 1135. When must be in writing. § 1136. Transfer by sale, &c. § 1135. An interest in a ship, or in an existing trust, can be transferred only by operation of law, or by a written instrument, subscribed by the person making the transfer, or by his agent. See sec. 3440, post. § 1136. The mode of transferring other per- sonal property by sale is regulated by the title on that subject, in Division third of this Code. Transfer of obligations: See sees. 1457 et seq. Sales of property generally: See sees. 1721, post, et sea. ARTICLE II. WHAT OPERATES AS A TRANSFER. § 1140. Transfer of title under sale. § 1141. Transfer of title under executory agreement for sale. § 1142. When buyer acquires better title than seller has. § 1140. The title to personal property, sold or exchanged passes to the buyer whenever the par §§ U41, 1142 TRANSFER. 280 ties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not. Validity of sale of personal property: See sees. 1739, post et seq.; and sec. 1G24, post. Delivery: See sees. 1753 et seq., and sec. 1054, ante. Agreement to sell and buy defined: See sec. 1729, post. § 1141. Title is transferred by an executory agreement for the sale or exchange of personal property only when the buyer has accepted the thing, or when the seller has completed it, pre- pared it for delivery, and offered it to the buyer, with intent to transfer the title thereto, in the manner prescribed by the chapter upon Offer of Performance. Offer of performance: See sees. 1485, post, et seq. § 1142. Where the possession of personal prop- erty, together with a power to dispose thereof, is transferred by its owner to another person, an executed sale by the latter, while in possession, to a buyer in good faith and in the ordinary course of business, for value, transfers to such buyer the title of the former owner, though he may be entitled to rescind, and does rescind, the transfer made by him. Sales by factor: See post, sec. 2369. 281 TRANSFER. §§ U46-1151 ARTICLE III. GIFTS. § 1146. Gifts defined. § 1147. Gift, how made. § 1148. Gift not revocable. § 1149. Gift in view of death, what. § 1150. "^hen gift presumed to be in view of death. § 1151. Revocation of gift in view of death. § 1152. Effect of will upon gift. § 1153. When treated as legacy. § 1146. A gift is a transfer of personal prop- erty, made voluntarily, and without consideration. § 1147. A verbal gift is not valid, unless the means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee. § 1148. A gift, other than a gift in view of death, cannot be revoked by the giver. Revoking gifts mortis causa: Sec. 1151, infra. § 1149. A gift in view of death is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only in case of the death of the giver. Revoking gift in view of death: See sec. 1151, infra, § 1150. A gift made during the last illness of the giver, or under circumstances which would naturally impress him with an expectation of speedy death, is presumed to be a gift in view of death! § 1151. A gift in view of death may be re- voked by the giver at any time, and is revoked by his recoverv from the illness, or escape from the §§ 1152, 1153 TRANSFER. 282 peril, under the presence of which it was made, or by the occurrence of any event which would operate as a revocation of a will made at the same time; but when the gift has been delivered to the donee, the rights of a bona fide purchaser from the donee before the revocation, shall not be af- fected by the revocation. [Amendment approved March 30, 1874; Amendments 1873-4, p. 226. In effect July 1, 1874.] Revoking gift causa mortis: See for the various conditions which will defeat a gift made in view of death, the note to sec. 1149, supra. Gift inter vivos not revocable: See sec. 1148, supra. § 1152. A gift in view of death is not affected by a previous will; nor by a subsequent will, un- less it expresses an intention to revoke the gift. § 1153. A gift in view of death must be treat- ed as a legacy, so far as relates only to the cred- itors of the giver. 2ivJ TRANSFER- S USS CHAPTER IV. RECORDING TRANSFERS. Article I. What may be recorded, §§ U58-1165. II. Mode of Recording, §§ 1169-1173. III. Proof and Acknowledgments of Instruments, §§ 1180-1207. IV. Effect of Recording or of the Want thereof, §§ 1213-1217. ARTICLE I. WHAT MAY BE RECORDED. § 1158. What may be recorded. § 1159. Judgm.ents may be recorded without acknowledg- ment. I 1160. Letters patent may be recorded without ac- knowledgment. 5 1161. Instruments must be acknowledged, except, &c. .? 1162. Same. ^ 1163. Instruments executed under power of attorney not to be recorded until power is filed. (Repealed.) § 1154. Transfers in trust, &c. § 1165. Fees of recorder to be indorsed. § 1158. Any instrument or judgment affecting the title to or possession of real property may be recorded under this chapter. Recording of conveyance by one whose name changed: See post, Appendix, p. Compare with section 1215. as indicating what may be recorded. Place of recording: See sec. 1169, post. Execution of instrument and acknowledgment to entitle to be recorded: See sec. 1161, infra, and sees. IISO et sea. Proceedings to correct imperfect acknowledg- ment: Sees. 1202. 1203, post. Bona fide purchasers without notice whose deeds are first recorded take precedence over prior grantee: Sec. 1107, ante; sec. 1214, post. §§ U59, 1160 TRANSFER. 284 Instrument, when deemed recorded: See sec. 1170, post. Effect of recording, or want thereof: See sees. 1213, post, et seq. § 1159. Judgments affecting the title to or pos- session of real property authenticated by the cer- tificate of the clerli of the court in which such judgments were rendered (and notices of location of mining claims), may be recorded without ac- knowledgment, certificate of acknowledgment, or further proof. The record of all notices of loca- tion of mining claims heretofore made in the proper office without acknowledgment, or certifi- cate of aclvuowledgment, or other proof shall have the same force and effect for all purposes as if the same had been duly acknowledged, or proved and certified as required by law. Affida- vits showing work or posting of notices upon mining claims may also be recorded in the Re- corder's office of the county, where such mining claims are situated. [Amendment approved March 9, 1892; Stats. 1892, ch. XCIV.] Recorder must file judgments: Polit. Code, sec. 4238. § 1160. Letters patent from the United States or from the State of California, executed and au- thenticated pursuant to existing law, may be re- corded without acknowledgment or further proof; and where letters patent have been lost, or are beyond the control of any party deraigning title therefrom, or for any reason they remain unre- corded, any person claiming title thereunder may cause a transcript of the copy of such letters pat- ent kept by the government issuing the same, duly certified by the officer or individual having lawful custody of such copy, to be recorded in lieu of the original; and such recorded copy shall have prima 2So TRANSFER. §§ U61-1164 facie the same force and effect as the original, for title or for evidence, until said original letters pat- ent be recorded, [Amendment approved April 1, 1878; Amendments 1877-8, p. 85. In effect sixtieth day after passage.] § 1161. Before an instrument can be recorded, unless it belongs to the class provided for in either sections eleven hundred and fifty-nine, eleven hun- dred and sixty, twelve hundred and two, or twelve hundred and three, its execution must be acknowl- edged by the person executing it, or if executed by a corporation, by its president or secretary, or proved by a subscribing witness, or as provided in sections eleven hundred and ninety-eight and eleven hundred and ninety-nine, and the acknowl- edgment or proof certified in the manner prescrib- ed by Article III of this chapter. [Amendment ap- proved March 30, 1874; Amendments 1873-4, p. 226. In effect July 1, 1874.] § 1162. An instrument, proved and certified pursuant to sections 1198 and 1199, may be re- corded in the proper office if the original is at the same time deposited therein to remain for public inspection, but not otherwise. § 1163. [Repealed March 30, 1874; Amend- ments 1873-4, 226. In effect July 1, 1874.] § 1164. Transfers of property in trust for the benefit of creditors, and transfers or liens on prop- erty by way of mortgage, are required to be re- corded in the cases specified in the titles on the special relation of Debtor and Creditor, and the chapter on Mortgages respectively. Special relations of debtor and creditor: See post, sees. 3429 et sea. Mortgages: See sees. 2920 et seq. §§ 1165-1172 TRANSFER. 286 § 1165. The recorder must in all cases indorse the amount of his fee for recordation on the in- strument recorded. [New section approved March 11, 1874; Amendments 1873-4, p. 274. In effect sixty days after passage.] Recorders: Polit. Code, sees. 4235 et seq. ARTICLE II. MODE OF RECORDING. § 1169. In what office. § 1170. Instrument, when deemed recorded. § 1171. Books of record. § 1172. Duties of recorder. § 1173. Transfer of vessels. § 1169, Instruments entitled to be recorded must be recorded by the county recorder of th« county in which the real property affected there- by is situated. § 1170. An instrument is deemed to be record- ed, when, being duly acl^nowledged or proved, and certified, it is deposited in the recorder's office with the proper officer for record. [Amendment approved March 30, 1874; Amendments 1873-4, p. 226. In effect July 1, 1874.] Recording: See, for general consideration of the subject, sec. 1158, ante, § 1171. Grants, absolute in terms, are to be re- corded in one set of boolis, and mortgages in an- other. § 1172. The duties of county recorders, in re- spect to recording instruments, are prescribed by the Political Code, Recorders: See Polit, Code, sees, 4235 et seq. 287 TRANSFER §§ 1173-U80 § 1173. The mode of recoiding transfers of ships registered under the laws of the United States is regulated by acts of Congress. See U. S. Rev. Stats., sees. 4131 et seq. ARTICLE III. PROOF AND ACKNOWLEDGMENT OF INSTRUMENTS. § 1180. By whom acknowledgments may be taken in this State. § llSl. Same. § 1182. By whom taken without the State. § 1183. By whom taken without the United States. .§ 1184. Deputy can take acknowledgment. § 1185. Requisites for acknowledgment. § 1186. Acknowledgment by married women. § 1187. Conveyance by married woman. § 1188. Officer must indorse certificate. § 1189. General form of certificate. § 1190. Form of acknowledgment by corporation, § 1191. Form of certificate of acknowledgment by married women. § 1192. Form of certificate of acknowledgment by attorney in fact. § 1193. Officers must affix their signatures. § 1194. Certificate of authority of justices in certain cases. § 1195. Proof of execution, how made. § 1196. Witness must be personally known to officer. § 1197. Witness must prove, what. § 1198. Handwriting may be proved, when. § 1199. Evidence must prove, what. § 1200. Certificate of proof. § 1201. Officers authorized to do certain things. § 1202. When instrument is improperly certified, party may have action to correct error. § 1203. In certain cases parties interested may obtain judg- ment of proof of an instrument. § 1204. Effect of judgment in such action. § 1205. Conveyances heretofore made to be governed by then existing laws. § 1206. Recording, and as evidence, to be governed by then existing laws. § 1207, Certified copies as evidence. Records, what notice deemed from, § 1180, The proof or acknowledgment of an in- strument may be made at any place witliin this State before a justice or clerk of the Supreme §§ 1181-1183 TRANSFER. 288 Court or a judge of the Superior Court. [Amend- ment approved April 3, 1880; Amendments 1880, p. 2. In effect immediately.] Act legalizing defective aclinowledgments: See post, Appendix, pp. 702 et seq. Act to legalize acliuowledgments taken by court commissioners: See post, Appendix, p. 702. § 1181. The proof or acl^nowledgment of an in- strument may be made in this state, within the city, city and county, county, or district for which the officer was elected or appointed, before either, 1. A clerk of a court of record; or, 2. A county recorder; or, 3. A court commissioner; or, 4. A notary public; or, 5. A justice of the peace. [Amendment approv- ed March 31, 1891; Stats. 1891, p. 214.] Act to legalize acknowledgments taken by court commissioners: See post. Appendix, p. Acknowledgment by deputy: See sec. 1184, post. § 1182. The proof or acknowledgment of an instrument may be made without this State, but within the United States, and within the jurisdic- tion of the officer, before either: 1. A justice, judge, or clerk of any court of record of the United States; or, 2. A justice, judge, or clerk of any court of rec- ord of any State; or, 3. A commissioner appointed by the governor of this State for that purpose; or, 4. A notary public; or, 5. Any other officer of the State where the ac- knowledgment is made authorized by its laws to talve such proof or acknowledgment. The word "state" includes "territory": See sec. 14, subd. 12. § 1183. The proof or acknowledgment of an 289 TRANSFER. §§ 1184, 1185 instrument may be made without the United States, before either: 1. A minister, commissioner, or charge d'affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made; or. 2. A consul, vice-consul, or consular agent of the United States, resident in the country where the proof or acknowledgment is made; or, 3. A judge of a court of record of the country where the proof or acknowledgment is made; or, 4. Commissioners appointed for such purposes by the governor of the State, pursuant to special statutes; or. 5. A notary public. [Amendment approved March 30, 1874; Amendment 1873-4, p. 227. In ef- fect July 1, 1874.] § 1184. When any of the officers mentioned in the four preceding sections are authorized by law to appoint a deputy, the acknowledgment or proof may be taken by such deputy, in the name of his principal. § 1185. The acknowledgment of an instru- ment must not be taken, unless the officer taking it knows, or has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the indi- vidual who is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation. Acknowledgments of married women: See next section. The official character of the certifying officer should appear from the certificate: Sec. 1188, post. Authentication of signature: See sec. 1193. post. Correcting certificate: See sec. 1202. post. Civ. Code.— 25. §§ 1186-11S9 TRANEFER. 290 § 1186. The acknowledgment of a married wo- man to an instrument purporting to be executed by her, must not be talien, unless she is made acquainted by the officer witli the contents of the instrument on an examination without the hear- ing of her husi3and; nor certified, unless she there- upon aclcuowledges to the officer that she executed the instrument and that she does not wish to re- tract such execution. § 1187. A conveyance by a married woman has the same effect as if she were unmarried, and may be acliuowledged in the same manner. [Amend- ment, approved March 19, 1891; Stats. 1891, p. 137. In effect immediatel5\] § 1188. An officer taking the acknowledgment of an instrument must indorse thereon, or attach thereto, a certificate substantially in the forms hereinafter prescribed. [Amendment approved March 30, 1874; Amendments 1873-4. p. 227. In effect July 1, 1874.] Official character: See Code Civ. Proc, sec. 1963. § 1189. The certificate of acknowledgment, un- less it is otherwise in this article provided, must be substantially in the following form: "State of . County of . ss. On this day of , in the year , before me (here insert name and quality of the officer), per- sonally appeared , known to me (or proved to me on the oath of ) to be the person whose name is subscribed to the within instm- ment, and acl^nowledged that he (she or they) ex- ecuted the same." Provided, however, that any acknowledgment taken without this State in ac- cordance with the laws of the place where the ac- L'91 TRANSFER. §§ 1190-U92 knowledgment is made, shall be sufficient in this State; and provided further, that the certificate of the clerk of a court of record of the county or district where such acknowledgment is taken, that the officer certifying to the same is authorized by law so to do, and that the signature of the said officer to such certificate is his true and gen- uine signature, and that such acknowledgment is taken in accordance with the laws of the place where the same is made, shall be prima facie evi- dence of the facts stated in the certificate of said clerk. [Approved February 26, 1897, ch. XL VI.] This section was also amended in March, 1891; Stats. 1891, p. 137. § 1190. The certificate of acknowledgment of an instrument executed by a corporation must be substantially in the following forin: State of , County of On this day of , in the year , before me [here insert the name and quality of the offi- cer], personally appeared , known to me [or proved to me on the oath of ] to be the presi- dent [or the secretary] of the corporation that exe- cuted the within instrument, and acknowledged to me that such corporation executed the same. § 1191. [Repealed March 19, 1891; Stats. 1891, p. 137. In effect immediately.] § 1192. The certificate of acknowledgment by an attorney in fact must be substantially in the following form: State of . 1 County of . f On this day of , in the year , before me [here insert the name and quality of the offi- cer], personally appeared , known to me [or §§ 11!)3-1196 TRANSFER. 292 proved to me on the oath of ] to be the per- son whose name is subscribed to the within instru- ment as*the attorney in fact of , and aclinowl- edged to me that he subscribed the name of thereto as principal, and his own name as attor- ney- in fact. ^ 1193. Officers talking and certifying ac- Ivnowlodgments or proof of instruments for re- cord, must authenticate their certificates by af- fixing thereto their signatures, followed by the names of their offices: also, their seals of office, if by the laws of the State or country where the ackno^^ ledgment or proof is taken, or by author- ity of which they are acting, they are required to have official seals. § 1194. The certificate of proof or acl^nowledg- meut, if made before a justice of the peace, when used in any county other than that in which he resides, must be accompanied by a certificate un- der the hand and seal of the clerk of the county in which the justice resides, setting forth that such justice, at the time of taking such proof or acknowledgment, Avas authorized to take the same, and that the clerk is acquainted with his hand- writing, and believes that the signature to the original certificate is genuine. § 1195. Proof of the execution of an instru- ment, when not acknowledged, may be made either: 1. By the party executing it, or either of them; or. 2. By a subscribing Avitness; or. 3. By other witnesses, in cases mentioned in section 1198. § 1196. If by a subscribing witness, such wit- ness must be personally known to the officer tak- 2S3 TRANSFER. §§ U97-U&9 ing the proof to be the person whose name is subscribed to the instrument as a witness or must be proved to be such by the oath of a "Credible witness. § 1197. The subscribing witness must prove that the person whose name is subscribed to the instrument as a party is the person described in it, and that such person executed it, and that the witness subscribed his name thereto as a witness. § 1198. The execution of an instrument may be established by proof of the handwriting of the party and of a subscribing witness, if there is one. in the following cases: 1. When the parties and all the subscribing Avitnesses are dead; or. 2. AYhen the parties and all the subscribing witnesses are nonresidents of the State; or, 3. When the place of their residence is un- known to the party desiring the proof, and can- not be ascertained by the exercise of due dili- gence; or, 4. When the subscribing witness conceals him- self, or cannot be found by the officer by the ex- ercise of due diligence in attempting to serve the subpoena or attachment; or, 5. In case of the continued failure or refusal of the witness to testify, for the space of one hour after his appearance. § 1199. The evidence taken under the preced- ing section must satisfactorily prove to the offi- cer the following facts: 1. The existence of one or more of the condi- tions mentioned therein; and, 2. That the witness testifying knew the person whose name purports to be subscribed to the in- strument as a party, and is well acquainted with liis signature, and that it is genuine: and. §§ 1200-1203 TRANSFER. 294 3. That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signa- ture, and that it is genuine; and, 4. The place of residence of the witness. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 227. In efCect July 1, 1874.] Proving handwriting, generally: See Code Civ. Proc, sees. 1315, 1943-1946. § 1200. An officer taking proof of the execution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the mat- ters required by law to be done or known by him, or proved before him on the proceeding, together with the names of all the witnesses examined be- fore him. their places of residence respectively, and the substance of their testimony. § 1201. Officers authorized to take the proof of instruments nre authorized in such proceed- ings: 1. To administer oaths or affirmations, as pre- scribed in section 2093, Code of Civil Procedure; 2. To employ and swear interpreters; 3. To issue subpoena, as prescribed in section 1980, Code of Civil Procedure;^ 4. To punish for contempt, as prescribed in sec- tions 1991, 1993, 1994, Code of Civil Procedure. The civil damages and forfeiture to the party aggrieved are prescribed in section 1992, Code of Civil Procedure. § 1202. When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the District Court to obtain a judgment correcting the certificate. § 1203. Any person interested under an instru- 295 TRANSFER. §§ 1204-1207 ment entitled to be proved for record may insti- tute an action in the District Court against the proper parties to obtain a judgment proving such instrument. § 1204. A certified copy of the judgment in a proceeding instituted under either of the two pre- ceding sections, showing the proof of the instru- ment, and attached thereto, entitles such instru- ment to record, with lil^e effect as if acl^nowl- edged. § 1205. The legality of the execution, acknowl- edgment, proof, form, or record of any conveyance or other instrument made before this Code goes into effect, executed, acknowledged, proved, or recorded is not affected by anything contained in this chapter, but depends for its validity and le- gality upon the laws in force when the act was performed. § 1206. All conveyances of real property made before this Code goes into effect, and acknowl- edged or proved according to the laws in force at the time of such mai^:ing and acknowledgment or proof, have the same force as evidence, and may be recorded, in the same manner and with the like effect, as -conveyances executed and ac- knowledged in pursuance of this chapter. § 1207. Any instrument affecting real property, which was, previous to the first day of January, one thousand eight hundred and ninety-seven, copied into the proper boolc of record, kept in the office of any County Recorder, shall be deemed to impart, after that date, notice of its contents to subsequent purchasers and incumbrancers, not- withstanding any defect, omission, or informality in the execution of the instrument, or in the cer- tificate of acknowledgment thereof, or the ab- §§ 1213, 1214 TRANSFER. 2»6 sence of any such certificate; but nothing herein shall be deemed to affect the rights of purchasers or incumbrancers previous to that date. Duly certified copies of the record of any such instru- ment may be read in evidence with like effect as copies of an instrument duly acknowledged and recorded; provided, it be first shown that the original instrument was genuine. [Amendment approved March 4, 1897, chapter LXXIV. The original of this section was a new section ap- proved March 30, 1874; Amendments 1873-4, p. 228. ARTICLE IV. EFFECT OF RECORDING OR THE WANT THEREOF. § 1213. Record, where and to whom notice. § 1214. Conveyances to be recorded, or are void, &c. § 1215. Conveyance defined. § 1216. Powers of attorney, how revoked. § 1217. Unrecorded instrument valid between the parties. § 1213. Every conveyance of real property, ac- knowledged or proved, and certified, and record- ed, as prescribed by law, from the time it is filed with the Recorder for record, is constructive no- tice of the contents thereof to subsequent pur- chasers and mortgagees; and a certified copy of any such recorded conveyance may be recorded in any other county, and when so recorded the record thereof shall have the same force and ef- fect as though it was of the original conveyance. [Amendment approved March 3, 1897; Stats. 1897, 0 S 1250. Same. § 1251. Same. § 1252. Same. § 1253. Same. § 1254. Same. § 1255. Same. § 1256. Same. § 1257. After sale, money equal to homestead exemption protected. § 1258. Compensation of appraisers. § 1259. Costs. § 1260. Who may select homestead, value of. § 1261. Head of family defined. § 1237. The homestead consists of the dwell- iug-house in which the claimant resides, and the hind on which the same is situated, selected as in This title provided. [Amendment approved March IM). 1874; Amendments 1873-4, p. 228. In effect July 1, 1874.] Homesteads— Constitutional protection: See art. 17. sec. 1. Selection of homestead: Sec. 12G2, post. Exemption of homestead: Sees. 1240, 1241, infra. Setting- apart homestead for decedent's family: Cdde Civ, Proc, sees. 14G5, et seq. Ahnndonment of homestead: Sec. 1243, infra. >j 1238. If the claimant be married, the uome- stead may be selected from the community prop- erty, or the separate property of the husband, or. with the consent of the wife, from her separate i)roperty. When the claimant is not married, but is the head of a family, within the meaning of section one thousand two hundred and sixty-one. the homestead may be selected from any of his or lier property. [Amendment approved March 30. 1874; Amendments 1873-4, p. 229. In effect July 1. 1874.] S 1239. The homestead cannot be selected from the separate property of the wife without lier consy her makina'. or joinintr in 301 HOMESTEADS. §§ 1240-1243 making, the declaration of homestead. [Amend- ment approved Mai'ch 30, 1874; Amendments 1873- 4, p. 229. In effect July 1, 1874.] § 1240. The homestead is exempt from exe- cution or forced sale, except as in this title pro- vided. § 1241. The homestead is subject to execution or forced sale in satisfaction of judgments ob- tained: 1. Before the declaration of homestead was filed for record, and which constitute liens upon the premises; 2. On debts secured by mechanics, contractors, subcontractors, artisans, architects, builders, la- borers of every class, materialmen's or vendors' liens upon the premises; 3. On debts secured by mortgages on the prem- ises, executed and acknowledged by the husband and wife, or by an unmarried claimant; 4. On debts secured by mortgages on the prem- ises, executed and recorded before the declara- tion of homestead was filed for record. [Amend- ment approved March 9, 1887; Stats. 1887, p. 81. In effect immediately.] Mortgage of: See next section. § 1242. The homestead of a married person cannot be conveyed or incumbered, unless the in- strument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife. See section 1241, subd. 3, 4. Act enabling parties to alienate and incumber homesteads: See post, Appendix, p. 771. § 1243. A homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged: Civ. Code.— 26. §§ 1244-1249 HOMESTEADS. 302 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried. § 1244. A declaration of abandonment is ef- fectual only from the time it is filed in the office in which the homestead was recorded. § 1245. When an execution for the enforce- ment of a judgment obtained in a case not within the classes enumerated in section 1241, is levied upon the homestead, the judgment creditor may apply to the Superior Court of the county in which the homestead is situated for the appoint- ment of persons to appraise the value thereof. [Amendment approved April 6, 1880; Amend- ments 1880, p. 7. In effect immediately.] Value of homestead: See sec. 12G3. § 1246. The application must be made upon a verified petition, showing: 1. The fact that an execution has been levied upon the homestead; 2. I'he name of the claimant; 3. That the value of the homestead exceeds the amount of the homestead exemption. § 1247. The petition must be filed with the clerk of the Superior Court. [Amendment ap- proved April C), 1880; Amendments, 1880, p. 8. In effect immediately.] § 1248. A copy of the petition, with a notice of the time and place of hearing, must be served upon the claimant, at least two days before the hearing. § 1249. At the hearing the judge may, upon proof of the service of a copy of the petition and notice, and of the facts stated in the peti- 303 HOMESTEADS. §§ 1250-1256 tion, appoint three disinterested residents of the county to appraise the value of the homestead. § 1250. The persons appointed, before entering upon the performance of their duties, must talie an oath to faithfully perform the same. § 1251. They must view the premises and ap- praise the value thereof, and if the appraised value exceeds the homestead exemption they must determine whether the land claimed can be divided without material injury. § 1252. Within fifteen days after their appoint- ment they must mnke to the judge a report in writing, which report must show the appraised value and their determination upon the matter of a division of the land claimed. § 1253. If, from the report, it appears to the judge that the land claimed can be divided with- out material injury, he must, by an order, direct the appraisers to set off to the claimant so much of the land, including the residence, as will amount in value to the homestead exemption, and the execution may be enforced against the re- mainder of the land. § 1254. If, from the report, it appears to the judge that the land claimed exceeds in value the amount of the homestead exemption, and that it cannot be divided, he must make an order direct- ing its sale under the execution. § 1255. At such sale no bid must be received, unless it exceeds the amount of the homestead exemption. § 1256. If the sale is made, the proceeds there- of, to the amount of the homestead exemption. * U 1257-1231 HOMESTEADS. 304 must be paid to the claimant, and the balance ap- plied to the satisfaction of the execution. § 1257, The money paid to the claimant is en- titled, for the period of six months thereafter, to the same protection against legal process and the voluntary disposition of the husband which the law gives to the homestead. [Amendment ap- proved March 30, 1874; Amendments 1873-4. In effect immediately.] § 1258. The court must fix the compensation of the appraisers, not to exceed five dollars per day each for the time actually engaged. § 1259. The execution creditor must pay the costs of these proceedings in the first instance; but in the cases provided for in sections 1253 and 1254 the amount so paid must be added as costs on execution, and collected accordingly. § 1260. Homesteads may be selected and claimed: 1. Of not exceeding five thousand dollars in value by any head of a family; 2. Of not exceeding one thousand dollars in value by any other person. Estimate of value: See sec. 1263, infra. Place of recording: See sec. 12G4, infra. § 1261. The phrase "head of a family," as used in this title, includes within its meaning,— 1. The husband, when the claimant is a mar- ried person; 2. Every person who has residing on the prem- ises with him or her, and under his or her care and maintenance, either: (1) his or her minor child, or minor grandchild, or the minor child of his or her deceased wife or husband; (2) a minor i 305 HOMESTEADS. §§ 1262-1263 brother or sister, or the minor child of a deceased brother or sister; 3. A father, mother, grandfather, or grand- mother; 4. The father, mother, grandfather, or grand- mother of a deceased husband or wife; 5. An unmarried sister, or any other of the rel- atives mentioned in this section, who have at- tained the age of majority, and are unable to take care of or support themselves. [Amendment ap- proved March 9. 1893: Stats. 1893, p. 123. In effect immediately.] Property exempt from execution to be set apart for family: Code Civ. Proc. sees. 1465-1470. CHAPTER II. HOMESTEAD OF THE HEAD OF A FAMILY. § 1262. Mode of selection. § 1263. Declaration of homestead. § 1264. Declaration must be recorded. § 1265. Tenure by which homestead is held. § 1262. In order to select a homestead, the hus- band or other head of a family, or in case the husband has not made such selection, the wife must execute and acknowledge, in the same man- ner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record. [Amendment approved March 30, 1874; Amendments 1873-4, p. 230. In effect July 1. 1874- ] Declaration of homestead: See next section. Selection by wife: See sees. 1238, 1239, ante. Place of recording: See sec. 1264, infra. § 1263. The declaration of homestead must contain: 1. A statement, showing that the person mak- ing it Is the head of a family; or. when the declar- §§ 1264, 1265 HOMESTEADS. 306 ation is made by the wife, showing that her hus- band has not made such declaration, and that she therefore malies the declaration for their joint benefit; 2. A statement that the person making it is re- siding on the premises, and claims them as a homestead; 3. A description of the premises; 4. An estimate of their actual cash value. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 231. In effect July 1, 1874.] Head of a family: See sec. 12G1, ante. Tiesidence necessary: See sec. 1237. § 1264. The declaration must be recorded in the office of the recorder of the county in which the land is situated. Duty of recorder: See Polit. Code, sec. 4235. § 1265. From and after the time the declar- ation is filed for record, the premises therein de- scribed constitute a homestead. If the selection was made by a married person from the communi- ty property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this title; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the Superior Court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner, ex- cept as provided in this title. [Amendment ap- proved April G. 1880; Amendments 1880, p. 8. In effect immediately.] Descent of homestead: See Code Civ. Proc, sees. 1470. 1474. Homestead set apart by Probate Court: Codr* Civ. Proc, sees. 1474-1478. HOMESTEAD— WILLS. §§ 1266-1269 CHAPTER HI. HOMESTEAD OF OTHER PERSONS. § 1266. Mode of selection. § 1267. Declaration of homestead. § 1268. Declaration must be recorded. .§ 1269. Effect of filing for record the declaration of home- stead. § 1266. Any person other than the head of a family, in the selection of a homestead, must exe- cute and acknowledge, in the same manner as a grant of real property is aclinoTvledged, a "Declar- ation of Homestead." § 1267. The declaration must contain every- thing required by the second, third, and fourth subdivisions of section 1263. § 1268. The declaration must be recorded in the ofSce of the county recorder of the county in which the land is situated. Duty of recorder: See Polit. Code, sec. 4235. § 1269. From and after the time the declara tion is filed for record, the land described therein is a homestead. TITLE VI. WILLS. Chapter I. Execution and Revocation of Wills, §§ 1270-1313. II. Interpretation of Wills, §§ 1317-1351 III. General Provisions relating to Wills, §§ 1357-1377. WILLS. 308 CHAPTER I. EXECUTION AND REVOCATION OF WILLS. § 1270. Who may make a wiJl. § 1271. Monomaniac incompetent. (Repealed.) § 1272. Will, or part thereof, procured by fraud. § 1273. Separate property of married women. § 1274. What may pass by will. § 1275. Who may take by will. § 1276. Written will, how to be executed. § 1277. Definition of an olographic will. § 1278. Witness to add residence. § 1279. Mutual will. § 1280. Competency of subscribing witness. § 1281. Conditional will. § 1282. Gifts to subscribing witnesses void. Creditors com- petent witnesses. § 1283. Witness who is a devisee, and who would be entitled to share of testator's estate if no will, entitled to share to amount of devise. § 1284. Will made out of this State. (Repealed.) § 1285. Will not duly executed, void. § 1286. Subsequent change of domicile. (Repealed.) § 1287. Republication by codicil. § 1288. Nuncupative will, how to be executed. § 1289. Requisites of a valid nuncupative will. § 1290. Proof of nuncupative wills. § 1291. Probate of nuncupative wills. § 1292. Written will, how revoked. § 1293. Evidence of revocation. § 1294. Revocation by obliteration on face of will. (Re- pealed.) § 1295. Revocation of duplicate. § 1296. Revocation by subsequent, will. § 1297. Antecedent not revived by revocation of subsequent will. § 1298. Revocation by marriage and birth of issue. § 1299. Effect of marriage of a man on his will. § 1300. Effect of a marriage of a woman on her will. 5 1301. Contract of sale not a revocation. § 1302. Mortgage not a revocation of will. § 1303. Conveyance, when not a revocation. § 1304. When it is a revocation. § 1305. Revocation of codicils. § 1306. Afterborn child, unprovided for, to succeed. § 1307. Children or issue of children of testator unprovided for by his will. § 1308. Share of afterborn child, out of what part of estate to be paid. .09 WILLS. §§ 1270-1273 I 1309. Advancement during lifetime of testator. § 1310. Death of devisee, being relation of testator, in life- time of testator, leaving lineal descendants. § 1311. Devises of land, how construed. § 1312. Will to pass rights acquired after the making there- of. § 1313. Restriction to devise for charitable uses. § 1270. Every person over the age of eighteen rears, of sound mind, may, by last will, dispose of all his estate, real and personal, and such es- tate not disposed of by will is succeeded to as provided in Title Til. of this part, being charge- able in both cases with the payment of all the decedent's debts, as provided in the Code of Civil Procedure. Stats. 1850, p. 177, sec. 1. Wills of married women: See sec. 1273. Wills of unmarried women revoked by mar- riage: Sec. 1300, infra. Validity of will: See sections on execution of wills, sees. 1276, 1376. § 1271. [Repealed March 30, 1874; Amend- ments 1873-4, 232. In effect July 1, 1874.] § 1272. A will, or a part of a will, procured to be made by duress, menace, fraud, or undue influ- ence, may be denied probate; and a revocation, procured by the same means, may be declared void. Contest of will: See Code Civ. Proc. sec. 1312. Undue influence as affecting contracts: See post, sec. 1575. Revocation of will: Sec. 1292, post. Contesting probate of will: Code Civ. Proc. sees. 1312 Gt sea. § 1273. A married woman may dispose of all her separate estate by will, without the consent §§ 1274-1276 WILLS. 310 of her husband, and may alter or revoke the will in like manner as if she were single. Her will must be executed and proved in like manner as other wills. [Amendment approved March 30, 1874; Amendments 1873-4, p. 232. In effect July 1, 1874.] § 1274. Every estate and interest in real or personal property, to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will, except as otherwise provided in sections 1401 and 1402. § 1275. A testamentary disposition may be made to any person capable by law of taking the property so disposed of, except corporations other than those formed for scientific, literary, or solely educational purposes, cannot take under a will, unless expressly authorized by statute. [Amend- ment approved January 29, 1874; Amendments 1873-4, p. 275. In effect immediately.] Charitable uses valid: See sec. 847, ante. Corporations existing before the code: See sec. 2S8. § 1276. Every will, other than a nuncupative will, must be in writing; and every will, other than an olographic will, and a nuncupative will, must be executed and attested as follows: 1. It must be subscribed at the end thereof by the testator iiimself, or some person in his pres- ence and by his direction must subscribe his name thereto; 2. The subscription must be made in the pres- ence of the attesting witnesses, or be acknowl- edged by the testator to them, to have been made by him or by his authority; 3. The testator must, at the time of subscribing or acknowledging the same, declare to the attest- ing witnesses that the instrument is his will; and, 3U WILLS. §§ 1277-1281 ■i. There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator's request, and in his presence. See sec. 1278, infra. Execution of foreign will: See sec. 1367, post. Olographic will: See sec. 1277, infra. Conjoint or mutual will: See sec. 1279, infra. Nuncupative will: See sees. 1288-1291. § 1277. An olographic will is one that is en- tirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this State, and need not be witnessed. May be proven in same manner as other private writings: Code Civ. Proc, sec. 1309. § 1278. A witness to a written will must write, with his name, his place of residence; and a per- son who subscribes the testator's name, by his di- rection, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will. § 1279. A conjoint or mutual will is valid, but it may be revolted by any of the testators, in like manner with any other will. § 1280. If the subscribing witneses to a will are competent at the time of attesting its execu- tion, their subsequent incompetency, from what- ever cause it may arise, does not prevent the pro- bate and allowance of the will, if it is otherwise satisfactorily proved. § 1281. A will, the validity of which is made by its own terms conditional, may be denied pro- bate, according to the event, with reference to the condition. §§ 1282-1286 WILLS. 312 Conditional devises and bequests: See sees. 1344 et seq., post. § 1282. All beneficial devises, legacies, au<' gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same; but a mere charge on the estate of tli testator for the payment of debts does not pre- vent his creditors from being competent witnesses to his will. § 1283. If a witness, to whom any beneficial devise, legacy, or gift, void by the preceding sec- tion, is made, would have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of the share as would be distributed to him, not exceeding the devise or bequest made to him in the will, and he may recover the same of the other devisees or legatees named in the will, in proportion to and out of the parts devised or be- queathed to them. [Amendment approved March 30, 1874; Amendments 1873-4, p. 232. In effect July 1, 1874.] § 1284. [Repealed March 30, 1874; Amend- ments 1873-4, 242. In effect July 1, 1874.] § 1285. No will made out of this State is valid as a will in this State, unless executed according to the provisions of this chapter. [Amendment approved INIarch 30, 1874; Amendments 1873-4, p. 232. In effect July 1, 1874.] Probate of foreign wills: Code Civ. Proc, sec. 1322. § 1286. [Repealed March 30, 1874; Amend- ments 1873-4, 232. In effect July 1, 1874.] 313 WILLS. §§ 1287-1280 § 1287. The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil. § 1288. A nuncupative will is not required to be in writing, nor to be declared or attested with any formalities. How admitted to probate: Code Civ. Proc, sec. 1344. Probating nuncupative wills: See sees. 1290. 1291, infra. § 1289. To make a nuncupative will valid, and to entitle it to be admitted to probate, the fol- lowing requisites must be observed: 1. The estate bequeathed must not exceed in value the sum of one thousand dollars; 2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time to bear witness that such was his will, or to that effect; 3. The decedent must, at the time, have been in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear, or peril of death; or the decedent must have been, at the time, in ex- pectation of immediate death from an injury re- ceived the same day. [Amendment approved March 80, 1874; Amendments 1873-4, p. 233. In effect July 1. 1874.] § 1290. No proof must be received of any nun- cupative will unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken. Probate of nuncupative wills: See Code Civ. Proc, sec. 1344. Civ. Code.— 27. §§ 1291-1296 WILLS. 314 § 1291. No probate of any nuncupative will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first commit- ted to writing, and process issued to call in the widow, or other persons interested, to contest the probate of such will, if they think proper. Time of probate: See Code Civ. Proc, sec. 1345. § 1292. Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: 1. By a written will, or other w^riting of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, 2. By being burnt, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direc- tion. Code applies to what wills: See sec. 1374, post. § 1293. When a will is cancelled or destroyed by any other person than the testator, the direc- tion of the testator and the fact of such injury or destruction, must be proved by two witnesses. § 1294. [Repealed March 30, 1874; Amend- ments 1873-4, 233. In effect July 1, 1874.] § 1295. The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. § 1296. A prior will is not revoked by a subse- quent will, unless the latter contains an express revocation, or provisions wholly inconsistent with 315 WILI.S. §§ 1297-1301 the terms of the former will; but in other cases the prior will remains effectual so far as consist- ent with the provisions of the subsequent will. § 1297. If, after mailing a will, the testator duly makes and executes a second will, the de- struction, cancellation, or revocation of such sec- ond will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation, or revocation, the first will is dul> republished. § 1298. If, after having made a will, the tes- tator marries, and has issue of such marriage, born either in his lifetime or after his death, and the wife or issue survives him, the will is re- voked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way men- tioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation can be received. § 1299. If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is pro- vided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the pre- sumption of revocation must be received. § 1300. A will, executed by an unmarried wom- an, is revoked by her subsequent marriage, and is not revived by the death of her husband. § 1301. An agreement made by a testator, for the sale or transfer of property disposed of by §§ 1302-1305 WILLS. 316 a will previously made, does not revoke such dis- posal; but the property passes by the will, sub- ject to the same remedies on the testator's agree- ment, for a specific performance or otherwise against the devisees or legatees, as might be had against the testators successors, if the same ha-4, 288. In effect immediately.] § 1402. T^pon the death of the husband, one- half of the commuuitj' property goes to the sur- §§ 1403-1405 SUCCESSION. 340 viving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his de- scendants, equally, if such descendants are in the same degree of kindred to the decedent; other- wise, according to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of ad- ministration. Community property defined: Sees. 163, 164, ante. § 1403. Inheritance or succession "by right of representation" talies place when the descendants of any deceased heir talve the same share or right in the estate of another person that their parents would have talcen if living. Posthumous chil- dren are considered as living at the death of their parents. See sec. 1310, ante. § 1404. Resident aliens may tal^e in all cases by succession as citizens; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any relative; but no nonresident for- eigner can talie by succession unless he appears and claims such succession within five years after the death of the decedent to whom he claims suc- cession. Aliens may talie by succession: See sees. 671, 072, ante. i^ 1405. When succession is not claimed as pro- vided in the preceding section, the district court. ;:;41 SUCCESSION. §§ 1406-1408 ou information, must direct the Attorney General to reduce tlie property to his or the possession of the State, or to cause the same to be sold, and the same or the proceeds thereof to be deposited in the State treasury for the benefit of such non- resident foreigner, or his legal representative, to be paid to him whenever, within five years after such deposit, proof to the satisfaction of the State Comptroller and Treasurer is produced that he is entitled to succeed thereto. § 1406. When so claimed, the evidence and the joint order of the Comptroller and Treasurer must be filed by the Treasurer as his voucher, and tne property delivered or the proceeds paid to the claimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent devolves and escheats to the people of the State, and is placed by the State Treasurer to the credit of the school fund. § 1407. Real property passing to the Stafe un- der the last section, whether held by the State or its officers, is subject to the same charges and trusts to which it would have been subject if it had passed by succession, and is also subject to all the provisions of Title YIII., Part III., of the Code of Civil Procedure. [Sees. 1269-1272.] § 1408. Those who succeed to the property of a decedent are liable for his obligations in the eases and to the extent prescribed by the Code of Civil Procedure. [§§ 1298-1809.] S§ 1410-1412 WATER RIGHTS. 342 TITLE VIII. WATER RIGHTS. § 1410. Rights to water may be acquired by appropriation. S 1411. Appropriation must be for a useful purpose. § 1412. Point of diversion may be changed. § 1413. Water may be turned into natural channels. § 1414. First in time, first in right. § 1415. Notice of appropriation. § 1416. Diligence in appropriating. § 1417. Completion defined. § 1418. Doctrine of relation applied. § 1419. Forfeiture. § 1420. Rights of present claimant. § 1421. Recorder to keep book in which to record notices. § 1422. Prior title not to affect rights of riparian proprie- tors. § 1410. The right to the use of running water flowing in a river or stream, or down a canyon or lavine, may be acquired by appropriation. See Polit Code, sec. 3446. Acts relating to irrigation: vStatutes in force, ti- tle, Irrigation. Rights of appropriators as between themselves: See sec. 1414. Riparian rights atfected by appropriation: See sec. 1422. Posting notice: Sees. 1415 et seq. § 1411. The appropriation must be for some useful or beneficial purpose, and when the appro- priator or his successor in interest ceases to use it for such a purpose, the right ceases. Appropriation must be evidenced by physical acts: See sec. 1416. Amount of property appropriated: See sec. 1415. § 1412. The person entitled to the use may <'hange the place of diversion, if others are not 343 WATER RIGHTS. §§ 1413-1416 injured by such change, and may extend the ditch ilume, pipe, or aqueduct by which the diversion is made to places beyond that where the first use was made. S 1413. The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed; but in reclaim- ing it the water already appropriated by another must not be diminished. § 1414. As between appropriators, the one first in time is the first in right. When right begins: See sec. 1418. Use of water, nature of: See sec. 1411. Change of use: See sec. 1412. Rights of appropriators as against the govern- ment and its grantees: See sec. 1410. § 1415. A person desiring to appropriate water must post a notice, in writing, in a conspicuous place at the point of intended diversion, stating therein: 1. That he claims the water there flowing to the extent of (giving the number) inches, measured under a four-inch pressure; 2. The purposes for which he claims it, and the place of intended use; 3. The means by which he intends to divert it. and the size of the flume, ditch, pipe, or aque- duct in which he intends to divert it; A copy of the notice must, within ten days after it is posted, be recorded in the office of the record- er of the county in which it is posted. § 1416. Within sixty days after the notice is posted the claimant must commence the excava- tion or construction of the worlis in which he in- tends to divert the water, and must prosecute the §§ 1417-1422 WATER RIGHTS. 344 work diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain; provided, that if the erection of a dam has been recommended by the California Debris Commis- sion at or near the place where it is intended to divert the water, the claimant shall have sixty days after the completion of such dam in which to commence the excavation or construction of the works in which he intends to divert the water. [Amendment approved March 23, 1895; Stats. 1895, 55. In effect immediately.] Time from which right of appropriation becomes vested: See sec. 1118. § 1417. By "completion" is meant conducting the waters to the place of intended use. § 1418. By a compliance with the above rules the claimant's right to the use of the water relates back to the time the notice was posted. § 1419. A failure to comply with such rules de- prives the claimants of the right to the use of the water as against a subsequent claimant who com- plies therewith. § 1420. Persons Avho have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some useful purpose, must, after this title takes effect, and within twenty days thereafter, proceed as in this title provided, or their right ceases. § 1421. The recorder of each county must keep a book, in which he must record the notices pro- vided for in this title. § 1422. [Repealed March 15, 1887.] Acts relating to irrigation: See Statutes in force, title, Irrigation. 345 HYDRAULIC MINING. §§ 1424-1425 TITLE IX. HYDRAULIC MINING. The Civil Code of the State of California is here- by amended by adding thereto a new title, to be known as title nine, of part four, of division two, of said Code, to read as follows: [Act approved March 24, 1893; Stats. 1893, 333.] § 1424. Where hydraulic mining can be carried on. § 1425. Meaning of hydraulic mining. § 1424. The business of hydraulic mining may be carried on within the State of California wher- ever and whenever the same can be carried on without material injury to the navigable streams, or the lands adjacent thereto. § 1425. Hydraulic mining, within the meaning of this title, is mining by means of the applica- tion of water, under pressure, through a nozzle, against a natural bank. DIVISION THIRD. Part I. Obligations in General, §§ 1427- 1543. 11. Contracts, §§ 1549-1701. III. Obligations Imposed by Law, §§ 1708-1715. IV. Obligations Arising from Par- ticular Transactions, §§ 1721- 3268. PART I. OBLIGATIONS IN GENERAL. Title I. Definition of Obligations, §§ 1427-1428. II. Interpretation of Obligations, §§ 1429- 1451. III. Transfer of Obligations, §§ 1457-1467. IV. Extinction of Obligations, §§ 1473-1543. TITLE I. DEFINITION OF OBLIGATIONS. § 1-427. Obligation, what. § 1428. How created and enforced. § 1427. An obligation is a legal duty, by which a person is bound to do or not to do a certain thing. § 1428. An obligation arises either from: 1. The contract of the parties; or, 2. The operation of law. An obligation arising from operation of law may be enforced in the manner provided by law, or by civil action, or proceeding. [Amendment approv- ed March 30, 1874; Amendments 1873-4, 239. In effect July 1, 1874.] Civ. Code.— 20. §§ 1429, 1430 INTERPRETATION OF OBLIGATIONS. 350 TITLE II. INTERPRETATION OF OBLIGATIONS. Chapter I. General Rules of Interpretation, § 1429. II. Joint or Several Obligations, §§ 1430- 1432. III. Conditional Obligations, §§ 1434-1442. IV. Alternative Obligations, §§ 1448-1451. CHAPTER I. GENERAL RULES OP INTERPRETATION. § 1429. General rules. § 1429. Tlie rules which govern the interpreta- tion of contracts are prescribed by Part II. of this division. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted. Interpretation of contracts: See sees. 1635-1661. CHAPTER II. JOINT OR SEVERAL OBLIGATIONS. § 1430. Obligations, joint or several, &c. § 1431. When joint. § 1432. Contribution between joint parties. § 1430. An obligation imposed upon several persons, or a right created in fftvor of several per- sons, may be: 1. Joint; 2. Several; or. .'i. Joint and several. 351 INTERPRETATION OF OBLIGATIONS. §§ 1431-1435 § 1431. An obligation imposed upon several persons, or a right created in favor of several per- sons, is presumed to be joint, and not several, ex- cept in the special cases mentioned in the Title on the Interpretation of Contracts. This presump- tion, in the case of a right, can be overcome only by express words to the contrary. Promise united in by several, all of whom re- ceive some benefit, is presumed to be joint and several: See sec. 1659, post. Promise in the singular, but executed by several, is presumed to be joint and several: Sec. 1660, post. § 1432. A party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him. See sec. 2848, post. CHAPTER HI. CONDITIONAL OBLIGATIONS. § 1434. Obligation, when conditional. § 1435. Conditions, kinds of. § 1436. Conditions precedent. § 1437. Conditions concurrent. § 1438. Condition subsequent. § 1439. Performance, &c., of conditions, when essential. § 1440. When performance, &c., excused. § 1441. Impossible or unlawful conditions void. § 1442. Conditions involving forfeiture, how construed. § 1434. An obligation is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. § 1435. Conditions may be precedent, concur- rent, or subsequent. Conditions of ownersliip: See sees. 707. 708, ante. S§ 1436-1440 INTERPRETATION OF OBLIGATIONS. 352 Conditional legacies: See ante, sees. 1345, 1346. Conditions precedent: See next section. Conditions concurrent: See sec. 1437, infra. Conditions subsequent: See sec. 1438, infra. § 1436. A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. See sees. 707, 708, ante. Unlawful condition precedent: See sec. 709, ante. § 1437. Conditions concurrent are those which are mutually dependent, and are to be performed at the same time. § 1438. A condition subsequent is one referring to a future event, upon the liappening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. See ante, sees. 707, 708. § 1439. Before any party to an obligation can require another party to perform any act under it, he must fulfill all conditions precedent thereto imposed upon himself; and must be able and of- fer to fulfill all conditions concurrent so imposed upon him on the lil^e fulfillment by the other par- ty, except as provided by the next section. § 1440. If a party to an obligation gives notice to another before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to per- 353 INTERPRETATION OF OBLIGATIONS. §§1441-1449 I'orin any conditions upon his part in favor of the former party. Refusal to accept performance before the time to perform is equivalent to an offer of perform- ance and refusal: Sec 1515, post. § 1441. A condition in a contract, the fulfil- ment of ■^\'hich is impossible or unlawful, within the meaning of the Article on the Object of Con- tracts, or which is repugnant to the nature of the interest created by the contract, is void. Object of contracts: See sees. 1595, post, et seq. Unlawful conditions: See sees, 709, ante, et seq. Conditions, when impossible, within the mean- ing of above section: See sees. 1595, post, et seq. § 1442. A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. CHAPTER IV. ALTERNATIVE OBLIGATIONS. § 1448. Who has the right of selection, § 1449. Right of selection, how lost. § 1450. Alternatives indivisible. § 1451. Nullity of one or more of alternative obligations. § 1448. If an obligation requires the perform- ance of one of two acts in the alternative, the party required to perform has the right of selec- tion, unless it is otherwise provided by the terms of the obligation. § 1449. If the party having the right of selec- tion between alternative acts does not give no- tice of his selection to the other party within the time, if any, fixed by the obligation for that pur- pose, or, if none is so fixed, before the time at §§ 1450-1458 INTERPRETATION OF OBLIGATIONS. 354 which the obligation ought to be performed, the right of selection passes to the other party. ^ 1450. The party having the right of selection between alternative acts must select one of them in its entirety, and cannot select part of one and part of another without the consent of the other party. § 1451. If one of the alternative acts required by an obligation is such as the law will not en- force, or becomes unlawful or impossible of per- formance, the obligation is to be interpreted as though the other stood alone. TITLE III. TRANSFER OF OBLIGATIONS. § 1457. Burden of obligation not transferable. § 1458. Rights arising out of obligation transferable. § 1459. Non-negotiable instruments may be transferred. § 1460. Covenants running with land, what. § 1461. What covenants run with land. § 1462. Same. § 1463. Same. § 1464. What covenants run with land when assigns are named. § 1465. Who are bound by covenants. § 1466. Who are not. § 1467. Apportionment of covenants. § 1457. The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise, except as pro- vided by section 1466. § 1458. A right arising out of an obligation is the property of the person to whom it is due, and may be transferred as such. Assignment of things in action: See sees. 953. 954, ante. 355 TRANSFER OF OBLIGATIONS. §§ 1459-1456 § 1459. A iion-negotiable written contract for the payment of money or personal property may be transferred by indorsement, in like manner with negotiable instruments. Such indorsement shall transfer all the rights of the assignor under the instrument to the assignee, subject to all equities and defenses existing in favor of the mak- er at the time of the indorsement. Negotiable instruments, what are: See sees. 3087, post, et seq. § 1460. Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land. Implied covenants: See ante, sec. 1113. Covenants running with land: See the succeed- ing sections of this title, especially sees. 1462, 1464. § 1461. The only covenants which run with the land are those specified in this title, and those which are incidental thereto. § 1462. Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land. Effect of transfers generally: See ante, sees. 1< .S3 et sea. ^ 1463. The last section includes covenants "of warranty,'' "for quiet enjoyment," or for further assurance on the part of a grantor, and covenants for the payment of rent, or of taxes or assessments upon tlie land, on the part of a grantee. §§ 1464-1467 TRANSFER OF OBLIGATIONS. 356 Damages for the breach of the above covenants: See sec. 3304, post. Letter of real property to secure quiet posses- sion of the hirer: See sec. 1927, post. § 1464. A covenant for the addition of some new thing to real property, or for the direct bene- fit of some part of the property not then in exist- ence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with land so far only as the assigns thus mentioned are concerned. See ante, sec. 14G2. § 1465. A covenant running with the land binds those only who acquire the whole estate of the covenantor in some part of the property. § 1466. No one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the coven- ant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits. § 1467. Where several persons, holding by sev- eral titles, are subject to the burden or entitled to the benefit of a covenant running with the land, it must be apportioned among them according to the value of the property subject to it held by them respectively, if such value can be ascer- tained, and if not, then according to their respec- tive interests in point of quantity. 357 EXTINCTION OF ObLIGATIONS. §§ 1473-1476 TITLE IV. EXTINCTION OF OBLIGATIONS. Chapter I. Performauce, §§ 1473-1479. II. Offer of Performance, §§ 1485-1505. III. Prevention of Performance or Offer, §§ 1511-1515. IV. Accord and Satisfaction, §§ 1521-1524. V. Novation, §§ 1530-1533. VI. Release, §§ 1541-1543. CHAPTER I. PERFORMANCE. § 1473. Obligation extinguished by performance. § 1474. Performance by one of several joint debtors. § 1475. Performance to one of joint creditors. § 1476. Effect of directions by creditors. § 1477. Partial performance. § 1478. Payment, what. § 1479. Application of general performance. § 1473. Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it. § 1474. Performance of an obligation, by one of several persons who are jointly liable under it, extinguishes the liability of all. § 1475. An obligation in favor of several per- sons is extinguished by performance rendered to any of them, except in the case of a deposit made by owners in common, or in joint ownership, which is regulated by the Title on Deposit. § 1476. If a creditor, or any one of two or more joint creditors, at any time directs the debtor §§ 1477-1479 EXTINCTION OF OBLIGATIONS. 358 to perform bis obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance. § 1477. A partial performance of an indivis- ible obligation extinguishes a corresponding pro- portion thereof, if the benefit of such perform- ance is voluntarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor cannot avoid re- taining it without injuring his own property, his retention thereof is not presumed to be voluntary. § 1478. Performance of an obligation for the delivery of money only is called payment. § 1479. Where a debtor, under several obliga- tions to another, does an act, by way of perform- ance, in Avhole or in part, which is equally appli- cable to two or more of such obligations, such per- formance must be applied as follows: 1. If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particu- lar obligation, be manifested to the creditor, it must be so applied; 2. If no such application be then made, the creditor, within a reasonable time after such per- formance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such perform- ance; except that if similar obligations were due to him, both individually and as a trustee, he must, unless otherwise directed by the debtor, ap- ply the performance to the extinction of all such obligations in equal proportion; and an application once made by the creditor cannot be rescinded without the consent of [the] debtor; EXTINCTION OF OBLIGATIONS. § 1485 n. If neitlier party makes such application with- in the time prescribed herein, the performance must be applied to the extinction of obligations in rlio following order; and, if there be more than OHO obligation of a particular class, to the extinc- liou of all in that class, ratably: '1). Of interest due at the time of the perform- ance; (2). Of principal due at that time; (3). Of the obligation earliest in date of ma- turity; (i). Of an obligation not secured by a lien or collateral undertaliing; (5.) Of an obligation secured by a lien or col- lateral undertaliing. [Amendment approved March 30, 1874; Amendments 1S73-4, 239. In ef- fect July 1, 1874.] CHAPTER II. OFFER OF PERFORMANCE. ;; 1485. Obligation extinguished by offer of performance. § 1483. Offer of partial performance. § 1487. By whom to be made. § 1488. To whom to be made. § 1489. Where offer may be made. § 1490. When offer must be made. S 1491. Same. § 1492. Compensation after delay in performance. § 1493. Offer to be made in good faith. S 1494. Conditional offer. § 1495. Ability and willingness essential. § 1496. Production of thing to be delivered not necessary. § 1497. Thing offered to be kept separate. § 1498. Performance of condition precedent. § 1499. Written receipts. § 1500. Extinction of pecuniary obligation. § 1501. Objections to mode of offer. § 1502. Title to thing offered. § 1503. Custody of thing offered. § 1504. Effect of offer on accessories of obligation. § 1.505. Creditor's retention of thing which he refuses to accept. § 1485. An obligation is extinguished by an offer of performance, made in conformity to the §§ 148G-1489 EXTINCTION OF OBLIGATIONS. 360 rules herein prescribed, and with intent to extin- jiuish the obligation. Tender of payment: See sees. 1500, 1504, infra. Tender of article passes title: Sec. 1502, Infra; and see sec. 1504. Duties of person making tender: See sec. 1504. § 1486. An offer of partial performance is of no effect. § 1487. An offer of performance must be made by the debtor, or by some person on his behalf and with his assent. § 1488. An offer of performance must be made to the creditor, or to any one of two or more joint creditors, or to a person authorized by one or more of them to receive or collect what is due un- der the obligation, if such creditor or authorized person is present at the place where the offer may be made; and, if not, wherever the creditor may be found. [Amendment approved March 30, 1874; Amendments 1873-4, 240. In effect July 1, 1874.] See next section. § 1489. In the absence of an express provision to the contrary, an offer of performance may be made, at the option of the debtor: 1. At any place appointed by the creditor; or, 2. Wherever the person to whom the offer ought to be made can be found; or, 3. If such person cannot, with reasonable dili- gence, be found Avithin this State, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can, with reasonable diligence, be found within the State; or, 4. If this cannot be done, then at any place within this State. 361 EXTINCTION OF OBLIGATIONS. §§ 1490-1493 Delivery of personalty: See post, sees. 1753 et seq. § 1490. vriiere an obligation fixes a time for its performance, an offer of performance must be made at that time, within reasonable hours, and not before nor afterwards. § 1491. "VMiere an obligation does not fix the time for its performance, an offer of performance may be made at any time before the debtor, upon a reasonable demand, has refused to perform. See post, sec. 1756, as to giving notice of time of delivery on sales of personalty. § 1492. Where delay in performance is capable of exact and entire compensation, and time has not been expressly declared to be of the essence of the obligation, an offer of performance, accom- panied with an offer of such compensation, may be made at any time after it is due, but without prejudice to any rights acquired by the creditor, or by any other person, in the mean time. § 1493. An offer of performance must be made in good faith, and in such manner as is most like- ly, under the circumstances, to benefit the creditor. § 1494. An offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform. Offer of performance upon condition: See post, sees. 1498, 1499. § 1495. An offer of performance is of no effect if the person making it is not able and willing to perform according to the offer. § 1496. The thing to be delivered, if any, need not in any case be actually produced, upon an offer of performance unless the offer is accepted. Civ. Coc!e.-31. §§ 1497-1502 EXTINCTION OF OBLIGATIONS. 362 § 1497. A thiug. wlieu offered by way of per- formance must not be mixed with other things from which it cannot be separated immediately and without difficulty. Vendor of personalty must put in condition for delivery: Sec. 1753, post." $ 1498. When a debtor is entitled to the per- formance of a condition precedent to, or concur- rent with, performance on his part, he may make his offer to depend upon the due performance of such condition. Conditions precedent: See ante, sec. 1439. § 1499. A debtor has a right to require from his creditor a written receipt for any property de- livered in performance of his obligation. See also Code Civ. Proc, sec. 2075. § 1500. An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the njime of the creditor, with some bank of deposit within this State, of good repute, and notice there- of is given to the creditor. Tender stopping interest: See sec. ir»04. § 1501. All objections to the mode of an offer of performance, which the creditor has an oppor- tunity to state at the time of the person mak- ing tlie otfer, and which could be then obviated by him. are ^^:aived by the creditor if not then stated. Similar provision, although more specific in its reiiuirements: Code Civ. Proc. sec. 207G. S 1502. The title to a thing duly offered in per- formance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect. t;3 EXTINCTION OF OBLIGATIONS. §§ 1503-1505 S 1503. The person offering a thing, other than money, by way of performance, must, if he means TO treat it as belonging to the creditor, retain it as a depositary for hire, until the creditor accepts it, ' or until he has given reasonable notice to the creditor that he will retain it no longer, and, if with reasonable diligence he can find a suitable depositary therefor, until he has deposited it with such person. Depositary for hire: See sec. 1852, post. § 1504. An offer of payment or other perform- ance, duly made, though the title to the thing of- fered be not transferred to the creditor, stops the running of interest on the obligation and has the same effect upon all its incidents as a perform- ance thereof. Tender transfers title: See sec. 1502, supra. Tender bars costs: Code Civ. Proc, sec. 1030. Eft'ect of offer in writing is the same as ten- der: Code Civ. Proc, sec. 2074. S 1505. If anytliing is given to a creditor by way of performance, which he refuses to accept as such, he is not bound to return it without de- mand; but if he retains it. he is a gratuitous de- positary thereof. Costs when tender is made before suit brought: Code Civ. Proc. 1030. Gratuitous depositary: See sees. 1844. post, et seq. §§ ir.11-1512 EXTINCTION OF OBLIGATIONS. 364 CIIAPTEK III. PREVENTION OF PERFORMANCE OR OFFER. § 1511. What excuses performance, &c. § 1512. Effect of prevention of performance. § 1513. Same. (Repealed.) § 1514. Same. § 1515. Effect of refusal to accept performance before offer. § 1511. The want of performance of an obliga- tion, or of an offer of performance, in whole or in part, or any delay therein, is excused by the fol- lowing causes, to the extent to which they oper- ate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; 2. When it is prevented or delayed by an irre- sistible, superhuman cause, or by the act of pub- lic enemies of this State or of the United States, unless the parties have expressly agreed to the contrary; or, 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect done at or before the time at which such performance or offer may be made, and not rescinded before that time. Want of performance excused.— Prevention of performance by one party seems to be regarded by the Code in some instances as equivalent to performance as to the other: See sec. 1512, infra. Subd. 2. See the maxim, section 3526, "No man is responsible for that which no man can con- trol." § 1512. If the performance of an obligation be prevented by the creditor, the debtor is entitled 365 EXTINCTION OF OBLIGATIONS. §§ 1513-1521 to all the benefits which he would have obtained if it had been performed by both parties. [Amend- ment approved March 30, 1874; Amendments 1873- 4, 240. In effect July 1, 1874.] Prevention by creditor: See supra, note to sec. 1511. § 1513. [Eepealed March 30, 1874; Amend- ments 1873-4, 240. In effect July 1, 1874.] § 1514. If performance of an obligation is pre- vented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to which he would have been entitled upon full per- formance, according to the benefit which the credi- tor receives from the actual performance. § 1515. A refusal by a creditor to accept per- formance, made before an offer thereof, is equiva- lent to an offer and refusal, unless, before per- formance is actually due, he gives notice to the debtor of his willingness to accept it. Refusal to perform entitles the other party to en- force the obligation without performance on his part: See sec. 1440, ante. CHAPTER IV. ACCORD AND SATISFACTION. § 1521. Accord, what. § 1522. Effect of accord. § 1523. Satisfaction, what. § 1524. Accord of liquidated debt. § 1521. An accord is an agreement to accept in extinction of an obligation, something different from or less than that to which the person agree- ing to accept is entitled. [Amendment approved S§ 1522-1530 EXTINCTION OF OBLIGATIONS. 366 March 30, 1874; Ameudmeiits 1873-4, 240. In ef- fect Jul J- 1, 1874.] See sec. 1543, post. Substituting- a new obligation for the existing one is a novation: See post, sec. 1530 et seq. Order on third person, effect of: See sec. 1533. post. § 1522. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed. § 1523. Acceptance, by the creditor, of the con- sideration of an accord extinguishes the obliga- tion, and is called satisfaction. See next section. Withdrawing acceptance: See sec. 1522. § 1524. Part performance of an obligation, t'ither before or after a breach thereof, when ex- pressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agree- ment in writing, for that purpose, though with- out any new consideration, extinguishes the obli- gation. [Amendment approved March 30, 1874; Amendments 1873-4, 241. In effect July 1, 1874.] CHAPTER V. NOVATION. S 1530. Novation, what. S 1531. Modes of novation. S 1532. Novation a contract. S 1533. Rescission of novation. § 1530. Novation is the substitution of a new obligation for an existing one. See sec. 1532. infra. Right to sue on contract made for one's bene- fit: See post, sec. 1559. . ,: EXTINCTION OF OBLIGATIONS. §§ 1531-1541 § 1531. Novation is made: 1. By the substitution of a new obligation be- tween the same parties, with intent to extinguish the old obligation; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. § 1532. Novation is made by contract, and is subject to all the rules concerning contracts in general. § 1533. When the obligation of a third person, or an order upon such person, is accepted in satis- faction, the creditor may rescind such acceptance if the debtor prevents such person from comply- ing with the order, or from fulfilling the obliga- tion; or if, at the time the obligation or order is received, such person is insolvent, and this fact is unknown to the creditor; or if, before the credi- tor can with reasonable diligence present the order to the person upon vx'hom it is given, he becomes insolvent. [Amendment approved March 30, 1874; Amendments 1873-1. 241. In effect July 1, 1874.] CHAPTER VI. RELEASE. § 1541. Obligation extinguished by release. § 1542. Certain claims not affected by general release. § 1543. Release of several joint debtors. § 1541. An obligation is extinguished by a re- lease therefrom given to the debtor by the credi- tor, upon a new consideration, or in writing, with or without new consideration. Writing imports n consideration: Sec. 1614. post. §§ 1542, 1543 EXTINCTION OF OBLIGATIONS. 368 § 1542. A general release does not extend to claims which the creditor does not linow or sus- pect to exist in his favor at the time of executing the release, which if linown bj^ him must have ma- terially affected his settlement with the debtor. [Amendment approved March 30, 1874; Amend- ments 1873-4, 241. In effect July 1, 1874.] § 1543. A release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution from him. Guarantor's liability discharged: See sec. 2819. post. Rights of sureties: See post. sec. 2844. PART II. CONTRACTS. Title I. Nature of a Contract, §§ 1549-1615. II. Manner of creating Contracts, §§ 1619- 1629. III. Interpretation of Contracts, §§ 1635-1661. IV. Unlawful Contracts, §§ 1667-1676. V. Extinction of Contracts, §§ 1682-1701. TITLE I. NATURE OF A CONTRACT. Chapter I. Definition, §§ 1549-1550. II. Parties. §§ 1556-1559. III. Consent, §§ 1565-1589. IV. Object, §§ 1595-1599. V. Consideration, §§ 1605-1615. CHAPTER I. DEFINITION. § 1549. Contract, what. § 1550. Essential elements of contract. § 1549. A contract is an agreement to do or not to do a certain thing. § 1550. It is essential to the existence of a con- tract that there should be: §§ 1556-1559 NATURE OF CONTRACT. 370 1. rarties capable of coutracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. Consent: See sees. 1565 et seq. Unlawful contracts: See sec. 1667, post. Consideration: See sees. 1605 et seq., post. CHAPTER II. PARTIES. § 1556. Who may contract. § 1557. Minors, &c. § 1558. Identification of parties necessary. § 1559. When contract for benefit of third person may be enforced. § 1556. All persons are capable of contracting, except minors, persons of unsound mind, and per- sons deprived of civil rights. Contracts of infants: See ante, sees. 33 et seq. Contracts of persons of unsound mind: See ante, sees. 38 et seq. Contracts of married women: See ante, sees. 158, 159, 167. § 1557. Minors and persons of unsound mind have only such capacity as is defined by Part I. of Division I. of this Code. See ante, sees. 83 et seq. {^ 1558. It is essential to the validity of a con- tract, not only that the parties should exist, but that it should be possible to identify them. § 1559. A contract, made expressly for the benefit of a third person may be enforced by him at any time before tlie i)arties thereto rescind it. 371 NATURE OF CONTRACT. §§ 1565, 1566 CHAPTER III. CONSENT. § 1565. Essentials of consent. § 1566. Consent, when voidable. § 1567. Apparent consent, when not free. § 1568. When deemed to have been obtained by fraud, &c. S 1569. Duress, what. § 1570. Menace, what. S 1571. Fraud, actual or constructive. § 1572. Actual fraud, what. § 1573. Constructive fraud. § 1574. Actual fraud a question of fact. S 1575. Undue influence, what. § 1576. Mistake, what. § 1577. Mistake of fact. § 1578. Mistake of law. § 1579. Mistake of foreign laws. § 1580. Mutuality of consent. S 1581. Communication of consent. § 1582. Mode of communicating acceptance of proposal. § 1583. When communication deemed complete. § 1584. Acceptance by performance of conditions. § 1585. Acceptance must be absolute. § 1586. Revocation of proposal. § 1587. Revocation, how made. § 1588. Ratification of contract, void for want of consent. § 1589. Assumption of obligation by acceptance of benefits. § 1565. The couseut of the parties to a contract must be: 1. Free; 2. Mutual; and, 3. Communicated by each to the other. Consent, when not free, and effect: Sees. 1566, 1567, infra. Consent, when not mutual: See sec. 1580. Consent, how communicated: See infra, sees. 1581 et sea. § 1566. A consent which is not free is never- theless not absolutely void, but may be rescinded by the parties in the manner prescribed by the Chapter on Rescission. §§1567-1570 NATURE OF CONTRACT. 372 Rescission of contracts: See post, sees. 1688 et seq. § 1567. An apparent consent is not real or free when obtained through: 1. Duress; 2. Menace; 3. Fraud; 4. Undue influence; or, 5. Mistake. Duress defined: Sec. 1569. Menace defined: Sec. 1570. Fraud defined: Sec. 1571. Undue influence defined: Sec. 1575. Mistake defined: Sees. 1576, 1577. § 1568. Consent is deemed to have been ob- tained tlirouiih one of the causes mentioned in the last section only Avhen it would not have been sriven had such cause not existed. § 1569. Duress consists in: 1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; 2. Unlawful detention of the property of any such person; or, 3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive. The unlawful imprisonment of an adopted child as duress is said by the Code Commissioners to be a "new provision, but in accordance with the title on adoption": See ante, sec. 221 et seq. § 1570. Menace consists in a threat: 1. Of such duress as is specified in subdivisions 1 and 3 of the last section; 373 NATURE OF CONTRACT. §§ 1571-1573 2. Of unlawful and violent injury to the person or property of any such person as is specified in the last section; or, 3. Of injury to the character of any such per- son, § 1571. Fraud is either actual or constructive. § 1572. Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the con- tract: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion in a manner not war- ranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive. Fraudulent conveyance a misdemeanor: Penal Code, sec. 531. Fraudulent instruments and transfers: See sec. 3439, post. Rescission of contracts for fraud: See post, sec. 1688. Deceit: See post, sees. 1709, 1710. § 1573. Constructive fraud consists: 1. In any breach of duty which, without an ac- tually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, Civ. Code. -32. 5!§ 1574-157.S NATURE OF CONTRACT. 374 2. In any such act or omission as the law spe- cially declares to be fraudulent, without respect to actual fraud. § 1574. Actual fraud is always a question of fact. § 1575. Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or appar- ent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2. In talcing an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair ad- vantage of another's necessities or distress. Undue influence vitiating will: See sec. 1272, ante. Undue influence as affecting validity of wills: See ante, sec. 1272. Rescission of contracts: See post, sec. 1G89. § 1576. Mistake may be either of fact or law. § 1577. Mistake of fact is a mistake, not caus- ed by the neglect of a legal duty on the part of the person making the mistake, and consisting in: 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or. 2. Belief in the present existence of a thing ma- terial to the contract, which does not exist, or in the past existence of such a thing, which has not existed. § 1578. Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from: 1. A misapprehension of the law by all parties. 375 NATURE OP^ CONTRACT. §§ 1579-1584 all supposing- that they knew aud understood it, and all making substantiallj' the same mistake as to the law; or, 2. A misapprehension of the law by one party, of which the others are aware at the time of con- tracting, but which they do not rectify. § 1579. Mistake of foreign laws is a mistake of fact. P^oreign laws, how proved: See Code Civ. Proc, sees. 1900, 1901. § 1580. Consent is not mutual, unless the par- ties all agree upon the same thing in the same sense. But in certain cases defined by the Chap- ter on Interpretation, they are to be deemed so to agree without regard to the fact. Interpretation of contracts: See post. sees. 1635 et sea. § 1581. Consent can be communicated with ef- fect only by some act or omission of the party con- tracting, by which he intends to communicate it, or which necessarily tends to such communication. § 1582. If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are con- formed to; but in other cases any reasonable and usual mode may be adopted. S 1583. Consent is deemed to be fully commu- nicated betAveen the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conform- ity to the last section. § 1584. Performance of the conditions of a pro- posal, or the acceptance of the consideration of- fered with a proposal, is an acceptance of the pro- posal. §§ 1585-1589 NATURE OF CONTRACT. 376 § 1585. An acceptance must be absolute and unqualified, or must include in itself an accept- ance of that character which the proposer can separate from the rest, and which will conclude the person accepting. A qualified acceptance is a new proposal. § 1586. A proposal may be revoked at any- time before its acceptance is communicated to the proposer, but not afterwards. § 1587. A proposal is revoked: 1. By the communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections 1581 and 1583, before his acceptance has been communicated to the former; 2. By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time with- out communication of the acceptance. 3. By the failure of the acceptor to fulfill a con- dition precedent to acceptance; or, 4. By the death or insanity of the proposer. § 1588, A contract which is voidable solely for want of due consent may be ratified by a subse- quent consent, § 1589. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. 377 NATURE OF CONTRACT. §§ 1595-1599 CHAPTER IV. OBJECT OF A CONTRACT. § 1595. Object, what. § 1596. Requisites of object. § 1597. Impossibility, what. § 1598. When contract wholly void. § 1599. When contract partially void. § 1595. Tlie object of a contract is the thing which it is agreed, on the part of the party re- ceiving the consideration, to do or not to do. L'nlawful contracts: See next section, and sees. 1667 et seq., post. Unlawful conditions: See ante, sec. 1441. § 1596. The object of a contract must be law- ful when the contract is made, and possible and ascertainable by the time the contract is to be per- formed. See post, sees. 1667 et seq. § 1597. Everything is deemed possible except that which is impossible in the nature of things. § 1598. Where a contract has but a single ob- ject, and such object is unlawful, whether in whole or in part, or wholly impossible of perform- ance, or so vaguely expressed as to be wholly un- ascertainable, the entire contract is void. § 1599. Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the con- tract is void as to the latter and valid as to the rest. §S 1605-1308 NATURE OF CONTRACT. 378 CHAPTPJR V. CONSIDERATION. § 1605. Good consideration, what. § 1606. How far legal or moral obligation is a good consid- eration. § 1607. Consideration lawful. § 1608. Effect of illegality. § 1609. Consideration executed or executory. § 1610. Executory consideration. § 1611. How ascertained. § 1612. Effect of impossibility of ascertaining consideration. § 1613. Same. § 1614. Written instrument presumptive evidence of consid- eration. § 1615. Burden of proof to invalidate suflBcient considera- tion. § 1605. Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promiser is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an in- ducement to the promisor, is a good consideration for a i)romise. § 1606. An existing legal obligation resting up- on the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to ah extent corres- ponding with the extent of the obligation, but no further or otherwise. § 1607. The consideration of a contract must be lawful within the meaning of section 1667. Illegal consideration: See unlawful contracts, see 1667, post. § 1608. If any part of a single consideration for one or more objects, or of several considern- 379 NATURE OF CONTRACT. §§ 1609-1615 tions for a single object, is iiulawfiil. the entire contract is void. S 1609. A consideration may be executed or executory in whole or in part. In so far as it is executory it is subject to the provisions of Chapter IV. of this title. § 1610. When a consideration is executory, it is not indispensable that the contract should spec- ify its amount or the means of ascertaining it. It may be left to the decision of a third person, or regulated by any specified standard. § 1611. When a contract does not determine tlie amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amoimt thereof to the discretion of an inter- ested party, the consideration must be so much money as the object of the contract is reasonably worth. See following sections. ij 1612. Where a contract provides an exclu- sive method by which its consideration is to be ascertained, wliich method is on its face impossi- ble of execution, the entire contract is void. s 1613. Where a contract provides an exclusive method by which its consideration is to be ascer- tained, which method appears possible on its face, but in fact is, or becomes impossible of execution, such provision only is void. S 1614. A written instrument is presumptive evidence of a consideration. Distinction between sealed and unsealed instru- ments abolished: See post, sec. 1629. § 1615. The burden of showing a want of con- sideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it. §§ 1619-1623 MANNER OF CREATING CONTRACTS. 380 TITLE 11. MANNER OF CREATING CONTRACTS. § 1619. Contracts, express or implied. § 1620. Express contract, what. § 1621. Implied contract, what. § 1622. What contracts may be oral. § 1623. Contract not in writing through fraud, may be en- forced against fraudulent party. § 1624. What contracts must be written. § 1625. Effect of writing. § 1626. Contract in writing,- takes effect when. § 1627. Provisions of chapter on transfers of real property. § 1628. Corporate seal, how affixed. § 1329. Provisions abolishing seals made applicable. § 1619. A contract is either express or implied. § 1620. xVn express contract is one, the terms of which are stated in words. § 1621. An implied contract is one, the exist- ence and terms of which are manifested by con- duct. Obligatio s imposed by hnv: Sec. 1708, post. § 1622. All contracts may be oral, except such as are specially required by statute to be in writ- ing. Contracts, when to be in writing: See infra sees. 1(323, 1624; Code Civ. Proc, sees. 1971-1974. § 1623. Where a contract, which is required by law to be in writing, is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts upon such belief to liis prejudice, may enforce it against the fraudu- lent party. Code Civ. Proc. sees. 1971-1974. 381 MANNER OF CREATING CONTRACTS. § 1624 § 1624. The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the par- ty to be charged, or by his agent: 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, de- fault, or miscarriage of another, except in the cases provided for in section twenty-seven hun- dred and ninety-four of this Code; 3. An agrement made upon consideration of marriage other than a mutual promise to marry; 4. An agreement for the sale of goods, chat- tels, or things in action, at a price not less than two hundred dollars, unless the buyer accept or receive part of such goods and chattels, or the evidences, or some of them, of such things in ac- tion, or pay at the time some part of the purchase- money; but when a sale is made at auction, an en- try by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of the sale, the price, and the names of the pur- chaser and person on whose account the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real prop- erty, or of an interest therein; and such agree- ment, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged; P). An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission, [Amendment ap- proved March 9, 1878; Amendments 1877-8. In ef- fect sixty days after passage,] Code Civ, Troc, sees, 1971-1974, See post, sec, 1798. Guaranty: See post, sec. 2793. Sales of personalty: See sec, 1739, post. §§ 1625-1629 MANNER OF CREATING CONTRACTS. 382 Agent, how appointed: See post, sec. 1741. Fraudulent transfers: See post. sees. 3439 et seq. Sales of personalty: See post, sees. 1739 et seq. Guaranty: See post, sees. 2787, 2793 et seq. I'art performance taking case out of statute: See post, sec. 1741. § 1625. The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter Tvhich preceded or accom- panied the execution of the instrument. Code Civ. Proc, sees. 1971-1974. Writing supersedes oral stipulations: See post, sec. 1639. § 1626. A contract in writing takes effect upon its delivery to the party in Avhose favor it is made, or to his agent. Delivery of transfers in writing: See, generally, ante, sec. 1054. § 1627. The provisions of the Chapter on Transfers in General, concerning the delivery of grants, absolute and conditional, apply to all writ- ten contracts. See ante, sees. 1052 et seq. § 1628. A corporate or official seal may be affixed to an instrument by a mere impression upon the paper or other material on which such instrument is written. See Code Civ. I*roc., sec. 14; Polit. Code, sec. 14. § 1629. All distinctions between sealed and un- sealed instruments are abolished. v; INTERPRETATION OF CONTRACTS. §§ 1635-1637 TITLE III. INTERPRETATION OF CONTRACTS. § 1635. Uniformity of interpretation. § 1636. Contracts, how to be interpreted. § 1637. Intention of parties, how ascertained. § 1638. Intention to be ascertained from language. § 1639. Interpretation of written contracts. § 1640. Writing, when disregarded. § 1641. Effect to be given to every part of contract. § 1642. Several contracts, when taken together. !} 1643. Interpretation in favor of contract. § 1644. Words to be understood in usual sense. § 1645. Technical words. § 1646. Law of place. § 1647. Contracts explained by circumstances. § 1648. Contract restricted to its evident object. § 1649. Interpretation in sense in which promisor believed promisee to rely. § 16.50. Particular clause subordinate to general intent. § 1>51. Contract, partly written and partly printed. J 1652. Repugnancies, how reconciled. § 16.53. Inconsistent words rejected. $ 1654. Words to be taken most strongly against whom. § 16.55. Reasonable stipulations, when implied. 5 1656. Necessary incidents implied. ? 16-57. Time of performance of contract. .5 1658. Time, when of essence. (Repealed.) § 16.59. When joint and several. ^ 1660. Same. § 1661. Executed and executory contracts, what. § 1635. All contracts whether public or priv- ate, are to be interpreted by the same rules, ex- cept as otherwise provided by this Code. § 1636. A contract must be so interpreted as to give effect to the mutual intention of the par- ties as it existed at the time of contracting, so far as the same is ascertainable and lawfuf. Parol evidence to prove intention: See Code Civ. Proc, sees. 1855 et seq. § 1637. For the purpose of ascertaining- the in- tention of the parties to a contract, if otherwise §§ 1638-1644 INTERPRETATION OF CONTRACTS. 384 doubtful, the rules given in this chapter are to be applied. Parol evidence with respect to writings: See Code Civ. Proc, sees. 1855, 1856, et seq. § 1638. The language of a contract is to gov- ern its interpretation, if the language is clear and explicit, and does not involve an absurdity. § 1639. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, how- ever, to the other provisions of this title. Parol evidence in construing writings: See Code Civ. Proc, sees. 1855 et seq. See also post, sec. 1689. § 1640. When, through fraud, mistake, or ac- cident, a written contract fails to express the real intention of the parties, such intention is to be re- garded, and the erroneous parts of the writing disregarded. See Code Civ. Proc, sec. 1856. § 1641. The whole of a contract is to be taken together, so as to give effect to every part, if rea- sonably practicable, each clause helping to inter- pret the other. § 1642. Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together. § 1643. A contract must receive such an inter- pretation as will make it lawful, operative, defi- nite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. § 1644. The words of a contract are to be un- 385 INTERPRETATION OF CONTRACTS. §§ 1645-1651 derstood in their ordinary and popular sense, rath- er than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. § 1645. Technical words are to be interpreted as usually understood by persons in the profes- sion or business to which they relate, unless clear- ly used in a different sense. § 1646. A contract is to be interpreted accord- ing to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made. Code Civ. Proc, sec. 1870, subd. 12. § 1647. A contract may be explained by refer- ence to the circumstances under which it was made, and the matter to which it relates. § 1648. However broad may be the terms of a contract, it extends only to those things concern- ing which it appears that the parties intended to contract. Code Civ. Proc, sec. 1864. § 1649. If the terms of a promise are in any respect ambiguous or uncertain, it must be inter- preted in the sense in which the promisor believ- ed, at the time of making it, that the promisee understood it. Which construction preferred: Code Civ. Proc, sec. 1864. § 1650. Particular clauses of a contract are subordinate to its general intent. See infra, sees. 1652, 1653. § 1651. Where a contract is partly written and Civ. Code.— 33. §§ 1652-1653 INTERPRETATION OP CONTRACTS. 386 partly printed, or where part of it is written or printed under tlie special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally pre- pared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are cojiied from a form. And if the two are nbsolutely repugnant, the latter must be so far disregarded. § 1652. liepugnancy in a contract must be rec- onciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of The whole contract. i^ 1653. Words in a contract which are wholly inconsistent with its nature, or with the main in- tention of the parties, are to be rejected. § 1654. In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party; except in a contract between a public officer or body, as such, and a private party, in which it is presumed that all uncertainty was caused by the private party. § 1655. Stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concern- ing which the contract manifests no contrary in- tention. § 1656. All things that in law or usage are con- sidered as incidental to a contract, or as necessary to carry it into effect are implied therefrom, un- 387 INTERPRETATION OF CONTRACTS. §§ 1657-1661 less some of them are expressly mentioned there- in, when all other things of the same class are deemed to be excluded. § 1657. If no time is specified for the perform- ance of an act required to be performed, a rea- sonable time is allowed. If the act is in its nature capable of being done instantly,— as, for example, if it consists in the payment of money only,— it must be performed immediately upon the thing to be done being exactly ascertained. § 1658. [Repealed March 30, 1874; Amend- ments 1873-4, 242. In effect July 1, 1874.] § 1659. Where all the parties who unite in a promise receive some benefit from the considera- tion, whether past or present, their promise is pre- sumed to be joint and several. Contracts, joint and several: See ante, sees. 1430 et seq. § 1660. A promise, made in the singular num- ber, but executed by several persons, is presumed to be joint and several. § 1661. An executed contract is one, the object of which is fully performed. All others are ex- ecutory. §§ 16K7-1670 UNLAWFUL CONTRACTS. 388 TITLE IV. UNLAWFUL CONTRACTS. § 1667. What is unlawful. § 1668. Certain contracts unlawful. § 1639. Penalties void. (Repealed.) § 1670. Contract fixing damages, void. § 1671. Exception. § 1672. Restraints upon legal proceedings. (Repealed.) § 1673. Contract in restraint of trade, void. § 1674. Exception in favor of sale of good will. § 1675. Exception in favor of partnership arrangements. § 1676. Contract in restraint of marriage, void. § 1667. That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals. Act to prevent combinations to obstruct the sale of livestock: See post, Appendix, p. Contracts in restraint of trade: See sec. 1673, infra. Contracts in restraint of marriage: See sec. 1676, infra. Conditions, when void: See ante, sees. 709, 710, 711. § 1668. All contracts which have for their ob- ject, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law. whether willful or negligent, are against the policy of the law. § 1669. [Repealed March 30,1874; Amendments 1873-4, 242. In effect July 1, 1874.] § 1670. Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, ex- cept as expressly provided in the next section. 389 UNLAWFUL CONTRACTS. §§ 1671-1676 § 1671. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. § 1672. [Repealed March 30, 1874; Amend- ments 1873-4, 242. In effect July 1, 1874.] § 1673. EveiT contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that ex- tent void. § 1674. One who sells the good will of a busi- ness may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the good will from him, carries on a like business therein. Good will of a business defined: Sec. 992, ante. Good will of a business is property: Sec. 993, ante. Sale of good will, implied warranty not to draw away customers: Sec. 1776, post. Partner cannot dispose of good will: See post, sec. 2430, subd. 2. § 1675. Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partner- ship business has been transacted, or within a specified part thereof. § 1676. Every contract in restraint of the mar- riage of any person, other than a minor, is void. Conditions in restraint of marriage: See ante, sec. 710. §§ 1682-1689 EXTTNCTION OF CONTRACTS. 390 TITLE V. EXTINCTION OF CONTRACTS. Chapter I. Contracts. How Extinguished, § 1682. II. Rescission, §§ 1688-1091. III. Alteration and Cancellation, §§ 1697- 1701. CHAPTER I. CONTRACTS, HOW EXTINGUISHED. § 1682. Contract, how extinguished. § 1682. A contract may be extinguished in like manner with any other obligation, and also in the manner prescribed by this title. CHAPTER II. RESCISSION. § 1688. Rescission extinguishes contract. § 1689. When party may rescind. § 1690. When stipulations against right to rescind do not defeat it. § 1691. Rescission, how effected. § 1688. A contract is extinguished by its rescission. § 1689. A party to a contract may rescind the same in the following cases only: 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he 391 EXTINCTION OF CONTRACTS. §§ 1690. 1691 rescinds, or of any other party to the contract jointly interested with such party; 2. If, through the fault of the party as to whom he rescinds the consideration for his obligation fails, in whole or in part; 3. If such consideration becomes entirely void from any cause; 4. If such consideration, before it is rendered to him, fails in a material respect, from any cause; or, 5. By consent of all the other parties. See post, sees. 3406 et seq., on rescission. Grounds of rescission as a counterclaim: See Code Civ. Proc, sees. 438, 439. Rescinding sale of personalty for nonpayment of price: See post, sec. 1748. § 1690. A stipulation that errors of description shall not avoid a contract, or shall be the subject of compensation, or both, does not talie away the right of rescission for fraud, nor for mistake, where such mistal^e is in a matter essential to the inducement of the contract, and is not capable of exact and entire compensation. § 1691. Rescission, when not effected by con- sent, can be accomplished only by the use, on the part of the party rescinding, of reasonable dili- gence to comply with the following rules: 1. He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disabil- ity, and is aware of his right to rescind; and, 2. He must restore to the other party every- thing of value which he has received from him under the contract; or must offer to restore the same, upon condition that such party shall do like- wise, unless the latter is unable or positively re- fuses to do so. See sees. 3406-3408, post. §§ 1697-1700 EXTINCTION OF CONTRACTS. 392 CHAPTER III. ALTERATION AND CANCELLATION. § 1697. Alteration of verbal contract. § 1398. Sealed contracts, how modified. § 1699. Extinction by cancellation, etc. § 1700. E.xtinction by unauthorized alteration. § 1701. Alteration of duplicate, not to prejudice. § 1697. A contract not in writing may be alter- ed in any respect by consent of the parties, in writing, without a new consideration, and is extin- guished thereby to the extent of the new altera- tion. [Amendment approved March 30, 1874; Amendments 1873-4, p. 242. In effect July 1, 1874.] Alterations in written instrument to be ac- counted for by the party producing it in evidence: Code Civ. Proc. sec. 1982. § 1698. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise. [Amendment ap- proved March 30, 1874; Amendments 1873-4, p. 242. In effect July 1, 1874.] Parol evidence to alter writings: See Code Civ. Proc, sec. 1856; and see ante, sec. 1G39. § 1699. The destruction or cancellation of a written contract, or of the signature of the par- ties liable thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. § 1700. The intentional destruction, cancella- tion, or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act. 393 EXTINCTION OF CONTRACTS. _ § 1701 § 1701. Where a contract is executed in dupli- cate, an alteration or destruction of one copy, while the other exists, is not within the provi- sions of the last section. PAKT III. OBLIGATIONS IMPOSED BY LAW. § 1708. Abstinence from injury. § 1709. Fraudulent deceit. § 1710. Deceit, what. § 1711. Deceit upon the public, etc. § 1712. Restoration of thing wrongfully acquired, § 1713. When demand necessary. § 1714. Responsibility for willful acts, negligence, etc. § 1715. Other obligations. § 1708. Every person is bound, without con- tract, to abstain from injuring the person or prop- erty of another, or infringing upon any of his rights. As to what injuries are criminal: See Penal Code, sees. 346-349. § 1709. One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. § 1710. A deceit, within the meaning of the last section, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of 395 OBLIGATIONS IMPOSED BY LAW. §§ 1711-1715 Other facts which are likely to mislead for want of communication of that fact; or, 4. A promise, made without any intention of performing it. Fraud actual and constructive: See sees. 1571 et seq. § 1711. One who practices a deceit with intent to defraud the public, or a particular class of per- sons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit. S 1712. One who obtains a thing without the consent of its owner, or by a consent afterward rescinded, or by an unlawful exaction which the owner could not at the time prudently refuse, must restore it to the person from whom it was thus obtained, unless he has acquired a title thereto superior to that of such other person, or unless the transaction was corrupt and unlawful on both sides. § 1713. The restoration required by the last section must be made without demand, except where a thing is obtained by mutual mistake, in which case the party obtaining the thing is not bound to return it until he has notice of the mis- take. § 1714. Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or per- son, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief. Compensatory relief: See post, sees. 3281 et seq. § 1715. Other obligations are prescribed by Divisions I and II of this Code. PART IV. OBLIGAriONS ARISING FROM PARTICULAR TRANSACTIONS. Title I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. Sale, §§ 1721-1798. Exchange, §§ 1804-1807. Deposit, §§ 1813-1878. Loan, §§ 1884-1920. Hiring, §§ 1925-1959. Service, §§ 19G5-2079. Carriage, §§ 2085-2209. Trust, §§ 2215-2289. Agency, §§ 2295-2389. Partnership, §§ 2395-2520. Insurance, §§ 2527-2766. Indemnity, §§ 2772-2781. Guaranty, §§ 2787-2866. Lien, §§ 2872-3080. Negotiable Instruments, §§ 3086-3262. General Provisions, § 3268. Chapter I. II. III. IV. TITLE L SALE. General Provisions, §§ 1721-1741. Rights and Obligations of the Seller, §§ 1748-1778. Rights and Obligations of the Buyer, §§ 1784-1786. Sale by Auction, §§ 1792-1798. 397 SALE. §§ 1721-1726 CHAPTER I. GENERAL PROVISIONS. Article I. Sale, §§ 1721-1722. II. Agreements for Sale, §§ 1726-1734. III. Form of the Contract, §§ 1739-1741. ARTICLE I. SALE. § 1721. Sale, what. § 1722. Subject of sale. § 1721. Sale is a contract by which, for a pe- cuniary consideration, called a price, one transfers to another an interest in property. § 1722. The subject of sale must be property, the title to which can be immediately transferred from the seller to the buyer. ARTICLE II. AGREEMENTS FOR SALE. § 1726. Agreement for sale. § 1727. Agreement to sell. § 1728. Agreement to buy. § 1729. Agreement to sell and buy. § 1730. What may be the subject of the contract. § 1731. Agreement to sell real property. § 1732, Form of grant required by such contract. (Re- pealed.) § 1733. Usual common law covenants required by such con- tracts, when. § 1734. Form of such covenants. § 1726. An agreement for sale is either: 1. An agreement to sell; Civ. Code.— 34. §§ 1727-1734 SALE. 398 2. All agreement to buy; or, 3. A mutual agreement to sell and buy. § 1727. An agreement to sell is a contract by which one engages, for a price, to transfer to an- other the title to a certain thing. § 1728. An agreement to buy is a contract by which one engages to accept from another, and pay a price for the title to a certain thing. § 1729. An agreement to sell and buy is a con- tract by which one engages to transfer the title to a certain thing to another, who engages to ac- cept the same from him and to pay a price there- for. § 1730. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not. § 1731. An agreement to sell real property binds the seller to execute a conveyance in form suffi- cient to pass the title to the property. [Amend- ment approved March 30, 1874; Amendments 1873- 4, p. 243. In effect July 1, 1874.] § 1732. [Repealed March 30, 1874; Amend- ments 1873-4, 243. In effect July 1, 1874.] § 1733. An agreement on the part of a seller of real property to give the usual covenants, binds him to insert in the grant covenants of "seisin," •'quiet enjoyment." "further assurance," "gen- oral warranty." and "against incumbrances." § 1734. The covenants mentioned in the last section must be in substance as follows: "The party of the first part covenants with the party of the second part, that the former is now seized j.,;. SALE. §§ 1739-1740 iu fee simple of the property granted; that the latter shall enjoy the same without any lawful disturbance; that the same is free from all in- cumbrances; that the party of the first part, and all persons acquiring any interest in the same through or for him, will, on demand, execute and deliver to the party of the second part, at the ex- pense of the latter, any further assurance of the same that may be reasonably required; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same." AKTICLE III. FORM OF THE CONTRACT. § 1739. Contract for sale of personal property. § 1740. Contract to manufacture. § 1741. Contract for sale of real property. § 1739. Xo sale of personal property, or agree- ment to buy or sell it for a price of two hundred dollars or more, is valid, unless: 1. The agreement or some note or memoran- dum thereof be in writing, and subscribed by the party to be charged, or by his agent; or, 2. The buyer accepts and receives part of the thing sold, or when it consists of a thing in ac- tion, part of the evidences thereof, or some of them; or, 3. The buyer, at the time of sale, pays a part of the price. [Amendment approved March 30, 1874; Amendments 1873-4, p. 243. In effect July 1. 1874.] Code Civ. Proc, sees. 1971-1974. § 1740. An agreement to manufacture a thing, from materials furnished by the manufacturer, or §§ 1741-1749 SALE. 400 by another person, is not within the provisions of the last section. § 1741. No agreement for the sale of real prop- erty, or of an interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charg- ed, or his agent, thereunto authorized, in writing; but this does not abridge the power of any court to compel the specific performance of any agree- ment for the sale of real property in case of part performance thereof, [Amendment approved March 30, 1874; Amendments 1873-4, p. 243. In ef- fect July 1, 1874.] Code Civ. Proc, sees. 1971-1974. CHAPTER II. RIGHTS AND OBLIGATIONS OP THE SELLER. Article I. Rights and Duties before Delivery, §§ 1748, 1749. II. Delivery, §^ liu3-17oS. III. Warranty, §§ 1763-1778. ARTICLE I. RIGHTS AND DUTIES BEFORE DELIVERY. § 1748. When seller must act as depositary. § 1749. When seller may resell. § 1748. After personal property has been sold, and until the delivery is completed, the seller has the riglits and obligations of a depositary for hire, except that he must l^eep the property, without charge, until the buyer has had a reasonable op- portunity to remove it. § 1749. If a buyer of personal property does not pay for it according to contract, and it remains 4ul SALE. §§ 1753-1750 in the possession of the seller after payment is due, the seller may rescind the sale or may en- force his lien for the price, in the manner prescrib- ed by the Title on Liens. Rescission of contracts, generally: See ante, sec. 16SS et sea- Rescission of contract for sale by buyer: See post, sees. 1785, 178(3. Liens: See post sees. 2872 et seq. ARTICLE 11. DELIVERY. § 1753. Delivery on deraaud. § 1754. Delivery, where made. § 1755. Expense of transportation. § 1756. Notice of election as to delivery. § 1757. Buyer's directions as to manner of sending thing sold. § 1758. Delivery to be within reasonable hours. § 1753, One who sells personal property, whether it was in his possession at the time of sale or not, must put it into a condition fit for delivery, and deliver it to the buyer within a rea- sonable time after demand, unless he has a lien thereon. Performance generally: See ante, sees. 1473, 1485, et seq. Delivery sufficient as to third persons: See sec. 3440, post. § 1754. Personal property sold is deliverable at the place where it is at the time of the sale or agreement to sell, or if it is not then in existence, it is deliverable at the place where it is produced. § 1755. One who sells personal property must bring it to his own door, or other convenient place, for its acceptance by the buyer, but further trans- portation is at the risk and expense of the buyer. §§ 1753-1763 SALE. 402 § 1756. When either party to a contract of sale has an option as to the time, place, or manner of delivery, he must give the other party reasonable notice of his choice; and if he does not give such notice within a reasonable time, his right of op- tion is waived. § 1757. If a seller agrees to send the thing sold to the buyer, he must follow the directions of the latter as to the manner of sending, or it will be at his own risk during its transportation. If he fol- lows such directions, or if, in the absence of spe- cial directions, he uses ordinary care in forward- ing the thing, it is at the risk of the buyer. § 1758. The delivery of a thing sold can be offered or demanded only within reasonable hours of the day. ARTICLE III. WARRANTY. § 1763. Warranty, what. § 1764. No implied warranty in mere contract of sale. § 1765. Warranty of title to personal property. § 1766. Warranty on sale by sample. § 1767. When seller knows that buyer relies on his state- ments, etc. § 1768. Merchandise not in existence. § 1769. Manufacturer's warranty against latent defects. § 1770. Thing bought for particular purpose. § 1771. W^hen thing cannot be examined by buyer. S 1772. Trade-marks. § 1773. Other marks. § 1774. Warranty on sale of written instrument. § 1775. Warranty of provisions for domestic use. § 1776. Warranty on sale of good-will. § 1777. Warranty upon judicial sale. § 1778. Effect of general warranty. § 1763. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, pres- ent, or future. 403 SALE. §§ 1764-1770 § 1764. Except as prescribed by this article, a raere contract of sale or agreement to sell does not imply a warranty. Warranty of genuineness on exchange of money: Sec. 1807, post. § 1765. One who sells or agrees to sell per- sonal property as his own, thereby warrants that he has a good and unincumbered title thereto. § 1766. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sample. § 1767. One who sells or agrees to sell per- sonal property, knowing that the buyer relies up- on his advice or judgment thereby warrants to the buyer that neither the seller, nor any agent em- ployed by him in the transaction, knows the exist- ence of any fact concerning the thing sold which would to his knowledge destroy the buyer's in- ducement to buy. § 1768. One who agrees to sell merchandise not then in existence, thereby warrants that it shall be sound and merchantable at the place of production contemplated by the parties, and as nearly so, at the place of delivery, as can be se- cured by reasonable care. § 1769. One who sells or agrees to sell an arti- cle of his own manufacture, thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufac- ture, and also that neither he nor his agent in such manufacture has knowingly used improper mate- rials therein. § 1770. One who manufactures an article un- der an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose. §§ 1771-1777 SALE. 404 § 1771. One who sells or agrees to sell mer- chandise inaccessible to the examination of the buyer, thereby warrants that it is sound and mer- chantable. § 1772. One who sells or agrees to sell any arti- cle to which there is affixed or attached a trade- mark, thereby warrants that mark to be genuine and lawfully used. Selling goods with counterfeit trademark: See Penal Code, sec. 351. § 1773. One who sells or agrees to sell any ar- ticle to which there is affixed or attached a state- ment or mark to express the quantity or quality thereof, or the place where it was, in whole or in part, produced, manufactured, or prepared, there- by warrants the truth thereof. Owner of trademark: Polit. Code, sec. 3199. § 1774. One who sells or agrees to sell an in- strument purporting to bind any one to the per- formance of an act, thereby warrants that he has no knowledge of any facts which tend to prove it wortliless, such as the insolvency of any of the parties thereto, where that is material, the ex- tinction of its obligations, or its invalidity for any cause. [Amendment approved March 30, 1874; Amendments 1873-4. p. 244. In effect July 1, 1874.] § 1775. One who makes a business of selling provisions for domestic use warrants by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome. § 1776. One who sells the good will of a bus- iness, thereby warrants that he will not endeavor to draw off any of the customers. § 1777. Upon a judicial sale, the only warran- 405 SALE. §§ 1778-1786 ty implied is that the seller does not know that the sale will not pass a good title to the prop- erty. § 1778. A general warranty does not extend to defects inconsistent therewith of which the buyer was then aware, or which were then easily dis- cernible by him without the exercise of peculiar skill; but it extends to all other defects. CHAPTER III. RIGHTS AND OBLIGATIONS OF THE BUYER. § 1784. Price, when to be paid. § 1785. Right to inspect goods. § 1786. Rights in case of breach of -warranty. § 1784. A buyer must pay the price of the thing sold on its delivery, and must take it away within a reasonable time after the seller offers to deliver it. When seller must act as bailee: See ante, sec. 1748. § 1785. On an agreement for sale, with war- ranty, the buyer has a right to inspect the thing sold, at a reasonable time, before accepting it; and may rescind the contract if the seller refuses to permit him to do so. Rescission of contract by seller: See ante, sec. 1749. Rescission by buyer for breach of warranty: See next section. § 1786. The breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, unless the warranty was intend- ed by the parties to operate as a condition. §§ 1792-1796 SALE. 406 CHAPTER IV. SALE BY AUCTION. § 1792. Sale by auction, what. § 1793, Sale, when complete. § 1794. Withdrawal of bid. § 1795. Sale under written conditions. § 1796. Rights of buyer upon sale without reserve. § 1797. By bidding. § 1798. Auctioneer's memorandum of sale. § 1792. A sale by auction is a sale by public- outcry to the highest bidder on the spot. Auctioneers, authority of, generally: See sees. 2362, 2303. See regulations in Polit. Code, sec. 3284 et seq., respecting auctioneers' bonds, license, etc. § 1793. A sale by auction is complete when the auctioneer publicly announces, by the fall of his hammer, or in any other customary manner, that the thing is sold. § 1794. Until the announcement mentioned in the Inst section has been made, any bidder may withdraw his bid, if he does so in a manner rea- sonably sufficient to bring it to the notice of the auctioneer. § 1795. When a sale by auction is made upon written or printed conditions, such conditions can- not be modified by any oral declaration of the auctioneer, except so far as thej are for his own benefit. S 1796. If. at a sale by auction, the auctioneer, liaving authority to do so, publicly announces that the sale will be Avithout reserve, or makes any nnnouncement equivalent thereto, the highest bidder in good faith has an absolute right to the 407 EXCHANGE. §§ 1797-1805 completion of the sale to him; and, upon such a sale, bids by the seller, or any agent for him, are void. § 1797* The employment by a seller of any per- son to bid at a sale by auction, without the knowl- edge of the buyer, without an intention on the part of such bidder to buy, and on the part of the seller to enforce his bid, is a fraud upon the buyer which entitles him to rescind his pur- chase. § 1798. When property is sold by auction, an entry made by the auctioneer, in his sale-booli, at the time of the sale, specifying the name of the person for whom he sells, the thing sold, the price, the terms of sale, and the name of the buy- er, binds both the parties in the same manner as if made by themselves. [Amendment approved March 30. 1874; Amendments 1873-4, p. 244. In effect July 1, 1874.] Auctioneer agent to make memorandum: See ante, sec. 1624. TITLE II. EXCHANGE. § 1804. Exchange, what. § 1805. Form of contract. § 1806. Parties have rights and obligations of sellers and buyers. § 1807. Warranty of money. § 1804. Exchange is a contract by which the parties mutually give, or agree to give, one thing for another, neither thing, or both things, being money only. § 1805. The provisions of section 1739 apply to all exchanges in which the value of the thing to be given by either party is two hundred dollars or more. §§ 1806-1813 DEPOSIT. 408 § 1806. The provisions of the Title on Sale ap- ply to exchanges. Each party has the rights and obligations of a seller as to the thing which he gives, and of a buyer as to that v^-hich he takes. § 1807. On an exchange of money, each party thereby warrants the genuineness of the money given by him. TITLE III. DEPOSIT. Chapter I. Deposit in General, §§ 1813-1827. II. Deposit for Keeping, §§ 1833-1872. III. Deposit for Exchange, § 1878. CHAl'TKU 1. DEPOSIT IN GENERAL. Article I. Nature and creation of deposit, §§ 1813-1818. II. Obligations of the Depositary, §§ 1822-1827. ARTICLE T. NATURE AND CREATION OF DEPOSIT. § 1813. Deposit, kinds of. § 1814. Voluntary deposit, how made. § 1815. Involuntary deposit, how made. § 1816. Same. § 1817. Deposit for keeping, what. § 1818. Deposit for exchange, what. § 1813. A deposit may be voluntary or invol- untary; and for safe keeping or for exchange. Deposit for keeping: Sees. 1833, post, et seq. Gratuitous deposit, and incidents: Sees. 1844. post, et seq. Deposit for hire: Sees. 1851, post, et seq. 409 DEPOSIT. §§ 1814-1817 Deposit for exchange: Sec. 1858, post. Loan for use: Sees. 1884 et seq.; loan for ex- change: Sec. 1902; loan of money: Sec. 1912. Hiring: See sees. 1925, post, et seq. Innkeepers: Sees. 1859, post, et seq. Common carriers: Sees. 2085 et seq. Pledge: Sees. 2986, post, et seq. § 1814. A voluntary deposit is made by one giving to another, with his consent, the possession of personal property to keep for the benefit of the former, or of a third party. The person giving is called the depositor, and the person receiving the depositary. Finder of lost article: See sees. 1864, post, et seq. Obligations of the depositary: See sees. 1822 et seq. § 1815. An involuntary deposit is made: 1. By the accidental leaving or placing of per- sonal property in the possession of any person, without negligence on the part of its owner; or, 2. In cases of fire, shipwreck, inundation, insur- rection, riot, or like extraordinary emergencies, by the owner of personal property committing it, out of necessity, to the care of any person. Involuntary deposit in cases of emergency must be accepted: See next section. Involuntary deposit is gratuitous: See sec. 1845, post. Degree of care requisite: See post, sec. 1846. Duties of depositary, when cease: See post, sec. 1847. § 1816. The person with whom a thing is de- posited in the manner described in the last sec- tion is bound to take charge of it, if able to do so. § 1817. A deposit for keeping is one in which Civ. Code.— 35. §§ 1818-1823 DEPOSIT. 410 the depositary is bound to return the identical' thing deposited. Deposit for l^eeping: See post, sees. 1833 et seq. § 1818. A deposit for exchange is one in which the depositary is only bound to return a thing corresponding in kind to that which is deposited. Deposit for exchange transfers title: Sec. 1878, post. Loan for exchange: See post, sees. 1902 et seq. ARTICLE XL OBLIGATIONS OF THE DEPOSITARY. § 1822. Depositary must deliver on demand. § 1823. No obligation to deliver without demand. § 1824. Place of delivery. § 1825. Notice to owner of adverse claim. § 1826. Notice to owner of thing wrongfully detained. § 1827. Delivery of thing owned jointly, &c. § 1822. A depositary must deliver the thing to the person for whose benefit it was deposited, on demand, whether the deposit was made for a specified time or not, unless he has a lien upon the thing deposited, or has been forbidden or prevented from doing so by the real owner thereof, or by the act of the law, and has given the notice re- quired by section 1825. See sees. 1823, 1826. Care required of depositary: See sec. 1852, post. Depositary's lien: Consult section 3051 for a general lien upon personalty dependent on pos- session, arising from service done to owner in re- spect thereto. Notice of adverse proceedings: Sec. 1825. Lien of innlveepers: See sees. 1861 et seq. § 1823. A depositary is not bound to deliver a 411 DEPOSIT. §§ 1824-1827 thing deposited without demand, even where the deposit is made for a specified time. § 1824. A depositary must deliver the thing de- posited at his residence or place of business, as may be most convenient for him. Delivery in sales: See sees. 1753 et seq. § 1825. A depositary must give prompt notice to the person for whose benefit the deposit was made, of any proceedings tali.en adversely to his interest in the thing deposited, which may tend to excuse the depositary from delivering the thing to him. Sec. 1822, supra. § 1826. A depositary, who believes that a thing deposited with him is wrongfully detained from its true owner, may give him notice of the deposit; and if within a reasonable time afterward he does not claim it, and sufiiciently establish his right thereto, and indemnify the depositary against the claim of the depositor, the depositary is exoner- ated from liability to the person to whom he gave the notice, upon returning the thing to the depos- itor, or assuming, in good faith, a new obligation changing his position in respect to the thing, to his prejudice. § 1827. If a thing deposited is owned jointly or in common by persons who cannot agree upon the manner of its delivery, the depositary may deliver to each his proper share thereof, if it can ]»e done without injury to the thing. |§ 1833-1835 DEPOSIT. 412 CHAPTER II. DEPOSIT FOR KEEPING. Article I. General Provisions, §§ 1833-1840. II. Gratuitous Deposit. §§ 1844-1847. III. Storage, §§ 1851-1855. IV. Innkeepers, §§ 1859-1863. V. Finding, §§ 1864-1872. ARTICLE I. GENERAL PROVISIONS. § 1833. Depositor must indemnify depositary. § 1834. Obligation of depositary of animals. § 1835. Obligations as to use of thing deposited. § 1836. Liability for damage arising from wrongful use. § 1837. Sale of thing in danger of perishing. § 1838. Injury to, or loss of thing deposited. § 1839. Service rendered by depositary. § 1840. Extent of his liability for negligence. § 1833. A depositor must indemnify the de- positary : 1. For all damage caused to him by the defects or vices of the thing- deposited; and, 2. For all expenses necessarily incurred by him about the thing, other than such as are involved in the nature of the undertal^ing. Lender's liability for defects of articles borrow- ed: See sec. 1894. § 1834. A depositary of living animals must provide them vrith suitable food and shelter, and treat them liindly. Lien of keepers of livestock: See post, sec. 3051. § 1835. A depositary may not use the thing deposited, or permit it to be used, for any pur pose, without the consent of the depositor. He may not, if it is purposely fastened by the depos- 413 DEPOSIT. §§ 1836-1840 itor, Open it without the consent of the latter, ex- cept in case of necessity. See next section. Hiring: See post, sees. 1925 et seq. § 1836. A depositary is liable for any damage happening to the thing deposited, during his Avrongful use thereof, unless such damage must inevitably have happened though the property had not been thus used, § 1837. If a thing deposited is in actual dan- ger of perishing before instructions can be ob- tained from the depositor, the depositary may sell it for the best price obtainable, and retain the proceeds as a deposit, giving immediate notice of his proceedings to the depositor. § 1838. If a thing is lost or injured during its deposit, and the depositary refuses to inform the depositor of Jhe circumstances under which the loss or injury occurred, so far as he has informa- tion concerning them, or willfully misrepresents the circumstances to him, the depositary is pre- sumed to have willfully, or by gross negligence, permitted the loss or injury to occur. § 1839. So far as any service is rendered by a depositary, or required from him. his duties and liabilities are prescribed by the Title on Employ- ment and Service. See post, sees. 1965 et seq. § 1840. The liability of a depositary for negli- gence cannot exceed the amount which he is in- formed by the depositor, or has reason to suppose, the thing deposited to be worth. [Amendment approved March 30, 1874; Amendments 1873-4, p. 244. In effect July 1. 1874.] §§ 1844-1847 DEPOSIT. 414 ARTICLE II. GRATUITOUS DEPOSIT. § 1844. Gratuitous deposit, what. § 1845. Nature of involuntary deposit. § 1846. Degree of care required of gratuitous depositary. § 1847. His duties cease, when. § 1844. Gratuitous deposit is a deposit for which the depositary receives uo consideration be- yond the mere possession of the thing deposited. Degree of care necessary: See next section. If this bailment correspond to the mandatum as gen- erally understood, requiring on the part of the bailee some service to be performed with respect to the deposit, then sections 1S39, supra, and sec- tions 1975, 1976, 1977, post, must be read together with section 1840, in determining the degree of care which this bailee must use. § 1845. An involuntary deposit is gratuitous, the depositary being entitled to no reward. Involuntary deposit defined: See ante, sec. 1815. § 1846. A gratuitous depositary must use, at least, slight care for the preservation of the thing deposited. Degree of care requisite: See note to sees. 1844, supra. § 1847. The duties of a gratuitous depositary cease: 1. Upon his restoring the thing deposited to its owner; or, 2. Upon his giving reasonable notice to the owner to remove it, and the owner failing to do so within a reasonable time. But an involuntary depositary, under subdivision 2 of section 1815, 415 DEPOSIT. §§ 1851-1854 cannot give such notice until the emergency which gave rise to the deposit is past. ARTICLE III. STORAGE. 5 1851. Deposit for hire. § 1852. Degree of care required of depositary for hire. S 1853. Rate of compensation for fraction of a week, etc. § 1854. Termination of deposit. § 1855. Same. § 1856. Lien for storage claarged. § 1857. Storage property to be sold. § 1851. A deposit not gratuitous is called stor- age, 'i'he depositarj^ in such case is called a de- positary for hire. lieceipts of warehousemen and wharfingers, act in relation to: See post, Appendix, p. 839. Hiring in general: See post, sec. 1925. § 1852. A depositary for hire must use at least ordinary care for the preservation of the thing de- posited. Liability of innl^eepers: See sec. 1859. Common carriers: Sees. 2100, 2114, 2194. Liability of warehouseman: See post. sees. 2120, 2121. S 1853. In the absence of a different agree- ment or usage, a depositary for hire is entitled to one week's hire for the sustenance and shelter of living animals during any fraction of a week, and to half a month's hire for the storage of any other property during any fraction of a half month. § 1854. In the absence of an agreement as to the length of time during which a deposit is to continue, it may be terminated by the depositor at any time, and by the depositary upon reasonable notice. §§ 1855-185T DEPOSIT. 416 Termination by depositor: Compare the preced- ing and the next sections. Section 1853 must re- fer to a deposit where no length of time is speci- fied; section 1855, to a case Avhere there is such an understanding. § 1855. Notwithstanding an agreement re- specting the length of time during which a depos- it is to continue, it may be terminated by the de- positor on paying all that would become due to the depositary in case of the deposit so continu- ing. § 1856. A depo^^itary for hire has a lien for storage charges, which is regulated by the title on liens. [New section added March 31, 1891: Stats. 1891, p. 470. In effect immediately.] § 1857. If, from any cause other than want of ordinary care and diligence on his part, a deposi- tary for hire is unable to deliver perishable prop- erty, baggage, or luggage received by him for stor- age, or to collect his charges for storage due there- on, he may cause such property to be sold, in open market, to satisfy his lien for storage; provided, that no property except perishable property shall be sold, under the provisions of this section, up- on which storage charges shall not be due and unpaid for one year at the time of such sale. [New section added March 31, 1891; Stats. 1891, ]). 470. In effect immediately.] 417 DEPOSIT. §§ 1859-1860 AllTICLE IV. INNKEEPERS. ? 1859. Innkeeper's liability. § 1860. How exempted from liability. § 1861. Lien of boarding and lodging-house keepers. § 1S62. Sale of baggage by boarding or lodging-house keep- ers. § 1863. Notices in hotels and boarding-houses. § 1859. The liability of an innkeeper, hotel- keeper, boarding and lodging-house keeper, for losses of or injuries to personal property, other than money, placed by his guests, boarders, or lodgers under his care, is that of a depositary for hire; provided, however, that in no case shall such liability exceed the sum of one hundred dol- lars for each trunk and its contents, fifty dol- lars for each valise or traveling bag and contents, and ten dollars for each box, bun- dle, or package and contents, so placed under his care, unless he shall have consented in writ- ing with the owner thereof to assume a greater liability. [Amendment approved March 12, 1895; Stats. 1895, p. 44. In effect on approval.] See next section. Refusing to receive and entertain guests a mis- demeanor: Penal Code, sec. 3G5. Cubic air law: See post, Appendix, p. 801. § 1860. If an innkeeper, hotel-keeper, board- ing-house or lodging-house keeper, keeps a fire- proof safe, and gives notice to a guest, boarder, or lodger, either personally or by putting up n printed notice in a prominent place in the office or the room occupied by the guest, boarder, or lodger, that he keeps such a safe and will not be liable for money, jewelry, documents, or other ar- ticles of unusual value and small compass, un- less placed therein, he is not liable, except so far |§ 1861, 1862 DEPOSIT. 418 as his own acts shall contribute thereto, for any loss of or injury to such articles, if not deposited with him to be placed therein, nor in any case more than the sum of two hundred and fifty dol lars for any or all such property of any individ- ual guest, boarder, or lodger, unless he shall have given a receipt in writing therefor to such guest, boarder, or lodger. [Amendment approved March 12, 1895; Stats. 1895, p. 44. In efeect on approval.! § 1861. Hotel men, boarding-house and lodg ing-house keepers, shall have a lien upon the bag- gage and other property of value of their guests, or boarders, or lodgers, brought into such hotel, inn, or boarding or lodging-house by such guests, or boarders, or lodgers, for the proper charges due from such guests, or boarders, or lodgers, for their accommodation, board and lodging, and room rent, and such extras as are furnished at their request, with the right to the possession of such baggage, or other property of value, until all such charges are paid. [New section approved April 1, 1876; Amendments 1875-G, p. 78. In effect April 1, 187G.1 Obtaining accommodations with intent to de- fraud: See Penal Code, sec. 537. § 1862. Whenever any trunlv, carpet bag, va- lise, box, bundle, or other baggage has hereto- fore come, or shall hereafter come, into the pos- session of the keeper of any hotel, inn, board- ing, or lodging-house, as such, and has remained, or shall remain, unclaimed for the period of six months, such keeper may proceed to sell the same at public auction, and out of the proceeds of such sale may retain the charges for storage, if any, and the expense of advertising and sale thereof; but no such sale shall be made until the expira- tion of four weeks from the first publication of no- tice of such sale in a newspaper published in or nearest the city, town, village, or place in which 119 DEPOSIT. § 1863 said hotel, inn, boarding or lodging house is situ- ated. Said notice shall be published once a week, for four successive weeks, in some newspaper, daily or weekly, of general circulation, and shall contain a description of each trunk, carpet bag, valise, box, bundle, or other baggage, as near as may be; the name of the owner, if known; the name of said keeper, and the time and place of sale; and the expenses incurred for advertising shall be a lien upon such trunk, carpet bag, va- lise, box, bundle, or other baggage, in a ratable proportion, according to the value of such piece of property, or thing, or article sold; and in case any balance arising from such sale shall not be claimed by the rightful owner within one week from the day of said sale, the same shall be paid into the treasury of the county in which such sale took place; and if the same be not claimed by the owner thereof, or his legal representatives, within one year thereafter, the same shall be paid into the general fund of said county. [New sec- tion approved April 1, 1876; Amendments 1875-6, p. 78. In effect April 1, 1876.] § 1863. Every keeper of a hotel, inn, boarding or lodging house, shall post, in conspicuous place, in the office, or public room, and in every bedroom of said hotel, boarding-house, inn, or lodging-house, a printed copy of this section, and a statement of charge, or rate of charges, by the day, and for meals or items furnished, and for lodging. No charge or sum shall be collected or received by any such person for any service not actually rendered, or for any item not actually delivered, or for any greater or other sum than he is entitled to by the general rules and regula- tions of said hotel, inn, boarding or lodging house. For any violation of this or any provision herein contained, the offender shall forfeit to the injured §§ 1864-1866 DEPOSIT. 420 party three times the amount of the sum charged in excess of what he is entitled to. [New section approved April ], 18TG; Amendments 1875-6, p. 78. In effect April 1, 1876.] ARTICLE y. FINDING. § 1864. Obligation of finder. § 1865. Finder to notify owner. § 1866. Claimant to prove ownership. § 1867. Reward, etc., to finder. § 1868. Finder may put thing found on storage. § 1869. When finder may sell the thing found. § 1870. How sale is to be made. § 1871. Surrender of thing to the finder. § 1872. Thing abandoned. § 1864. One who finds a thing lost is not bound to take charge of it, hut if he does so he is thence- forward a depositary for the owner, with the rights and obligations of a depositary for hire. Depositary for hire: See ante, sec. 1851 et seq. § 1865. If the finder of a thing knows or sus- pects who is the owner, he must, with reasonable diligence, give him notice of the finding; and if he fails to do so, he is liable in damages to the owner, and has no claim to any reward offered by him for the recovery of the thing, or to any compensation for his trouble or expenses. Note.— If owner is not known finder must re- port to justice of the peace and advertise. If he fails to do so he forfeits double the value thereof to the owner: Polit. Code, sees. 3136-3142; Penal Code, sec. 485. § 1866. The finder of a thing may, in good faith, before giving it up, require reasonable proof of ownership from any person claiming it. 421 DEPOSIT. §§ 1867-1872 Lost monej- and goods: See Folit. Code, sees. 3136-3142. § 1867. The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation and for any other ser- vice necessarily performed by him about it, and to a reasonable reward for keeping it. § 1868. The finder of a thing may exonerate himself from liability at any time by placing it on storage with any responsible person of good character, at a reasonable expense. a thing which is commonly the subject of sale, when the owner cannot, with reasonable diligence, be found, or being found, refuses, upon demand, to pay the lawful charges of the finder, in the following cases: 1. When the thing is in danger of perishing, or of losing the greater part of its value; or, 2. When the lawful charges of the finder amount to two-thirds of its value. Lost money and goods: See Polit. Code, sees. 3136-3142. § 1870. A sale under the provisions of the last section must be made in the same manner as the sale of a thing pledged. Sale of pledge: See sees. 3000, post, et seq. § 1871. The owner of a thing found may exon- erate himself from the claims of the finder by surrendering it to him in satisfaction thereof. § 1872. The provisions of this article have no application to things which have been intention- ally abandoned by their owners. Civ. Code.— 36. 5§ 1878, 1884 LOAN. CHAPTER III. DEPOSIT FOR EXCHANGE. § 1878. Relations of the parties. § 1878. A deposit for exchange transfers to the depositary, the title to the thing deposited, and creates between him and the depositor the rela- tion of debtor and creditor merely. Deposit for exchange defined: Sec. 1818, ante. Loan for exchange: See post, sec. 1902. TITLE IV- LOAN. Chapter 1. Loan for Use, sees. 1884-1896. II. Loan for Exchange, sees. 1902-1906. III. Loan of Money, sees. 1912-1920. CHAPTER I. LOAN FOR USE. § 1884. Loan, what. § 1885. Title to property lent. § 1886. Care required of borrower. § 1887. Same. § 1888. Degree of skill. § 1889. Borrower, when to repair injuries. § 1890. Use of thing lent. § 1891. Relending forbidden. § 1892. Borrower, when to bear expenses. § 1893. Lender liable for defects. § 1894. Lender may require return of thing lent. § 1895. When returnable without demand. § 1896. Place of return. § 1884. A loan for use is a contract by which one gives to another the temporary possession and use of personal property, and the latter agrees to return the same thing to him at a future time, without reward for its use. t 423 LOAN. §§ 1885-1892 § 1885. A loan for use does not transfer the ti- tle to the thing; and all its increase during the period of the loan belongs to the lender. § 1886. A borro^Yer for use must use great care for the preservation in safety and in good condition of the thing lent. § 1887. One who borrows a living animal for use must treat it with great kindness, and pro- vide everything necessary and suitable for it. Depositary of living animals for keeping: See ante, sec. 1834. § 1888. A borrower for use is bound to have and to exercise such skill in the care of the thing lent as he causes the lender to believe him to pos- sess. Compare with sec. 1976. § 1889. A borrower for use must repair all de- teriorations or injuries to the thing lent, which are occasioned by his negligence, however slight. § 1890. The borrower of a thing for use may use it for such purposes only as the lender might reasonably anticipate at the time of lending. See next section. § 1891. The borrower of a thing for use mast not part with it to a third person, without the consent of the lender. § 1892. The borrower of a thing for use must bear all its expenses during the loan, except such as are necessarily incurred by him to preserve it from unexpected and unusual injury. For such expenses he is entitled to compensation from ».he lender, who, may. however, exonerate himself by surrendering the thing to the borrower. §§ 1893-1896 LOAN. 424 § 1893. The lender of a thing for use muse in- demnify the borrower for damage caused by de- fects or vices in it, which he I^new at the cime of lending, and concealed from the borrower. See also ante, see. 1833. Loan for exchange: See post, sees. 1902, 1906. § 1894. The lender of a thing for use may at any time require its return, even though he lent it for a specified time or purpose. But, if, on the faith of such an agreement, the borrower has made such arrangements that a return of the thing before the period agreed upon would cause him loss, exceeding the benefit derived by him from the loan, the lender must indemnify him for such loss, if he compels such return, the borrower not having in any manner violated his duty. § 1895. If a thing is lent for use for a specified time or purpose, it must be returned to the lender without demand, as soon as the time has expired, or the purpose has been accomplished. In other cases it need not be returned until demanded. § 1896. The borrower of a thing for use must return it to the lender, at the place contemplated by the parties at the time of lending; or if no par- ticular place was so contemplated by them, then at the place where it was at that time. 425 LOAN. §§ 1902-1806 CHAPTER II. LOAN FOR EXCHANGE. § 1902. Loan for exchange, what. § 1903. Same. § 1904. Title to property lent. § 1905. Contract cannot bo modified by lender. § 1906. Certain sections applicable. § 1902. A loan for exchange is a contract by which one delivers personal property to another, and the latter agrees to return to the lender a similar thing at a future time, without reward for its use. Loan of money as a loan for exchange: See sec. 1912. § 1903. A loan, which the borrower is allowed by the lender to treat as a loan for use, or for ex- change, at his option, is subject to all the pro- visions of this chapter. § 1904. By a loan for exchange the title to the thing lent is transferred to the borrower, and he must bear all its expenses, and is entitled to all its increase. § 1905. A lender for exchange cannot require the borrower to fulfill his obligations at a time, or in a manner, different from that which was originally agreed upon. § 1906. Sections 1893, 1895, and 1896, apply to a loan for exchange. §§ 1912-1915 LOAN. 423 CHAPTER III. LOAN OF MONEY. § 1912. Loan of money. § 1913. Loan to be repaid In current money. § 1914. Loan presumed to be on interest. § 1915. Interest, what. § 1916. Annual rate. § 1917. Legal interest. § 1918. Same. § 1919. Interest becomes part of principle, when. § 1920. Interest on judgment. § 1912. A loan of money is a contract by whicli one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borrowed. A loan for mere use is governed by the Chapter on Loan for Use. Interest: See sees. 1914 et seq. § 1913. A borrower of money, unless there is an express contract to the contrary, must pay the amount due in such money as is current at the time when the loan becomes due, whether such money is worth more or less than tlie actual money lent. See sec. 200; see, also, sec. 3302, post. § 1914. Whenever a loan of money is made, it is presumed to be made upon interest, unless it is otherwise expressly stipulated at the time in writ- ing. [Amendment approved March 30, 1874; Amendments 1873-4, p. 245. In effect July 1, 1874.] § 1915. Interest is the compensation allowed by law or fixed by the parties for the use. or for- bearance, or detention of money. [Amendment approved March 30, 1874; Amendments 1873-4, p. 245. In effect July 1, 1874.] 427 LOAN. §§ 1916-1920 § 1916. When a rate of interest is prescribed by a law or contract, without specifying the pe- riod of time by which such rate is to be calculated, it is to be deemed an annual rate. § 1917. Unless there is an express contract in writing, fixing a different rate, interest is payable on all moneys at the rate of seven per cent, per annum, after they become due on any instrument of writing, except a judgment, and on moneys lent or due on any settlement of accounts, from the day on which the balance is ascertained, and on moneys received to the use of another and de- tained from him. In the computation of interest for a period less than a year, three hundred and sixty days are deemed to constitute a year. [Amendment approved February 15, 1878; Amend- ments 1877-8, p. 87. In effect April 16, 1878.] Interest on judgments: See infra, sec. 1920. Compounding interest: See infra, sec. 1019. 5 1918. Parties may agree in writing for the payment of any rate of interest, and it shall be allowed, according to the terms of the agreement, until the entry of judgment. Stats. 1808, 553, sec. 2: Stats. 1870, 699, sec. 1. ^ 1919. The parties may, in any contract in writing whereby any debt is secured to be paid, airree that if the interest on such debt is not punctually paid, it shall become a part of the principal, and thereafter bear the same rate of interest as the principal debt. § 1920. Interest is payable on judgments re- covered in the courts of this State, at the rate of seven per cent, per annum, and no greater rate, but such interest must not be compounded in any manner or form. [Amendment approved March §§ 1925-1927 HIRING. 428 30, 1874; Amendments 1873-4, p. 245. In effect July 1, 1874.1 Interest as damages: See post, sec. 3287. TITLE IV. HIRING. Chapter I. Hiring in General, §§ 1925-1935. II. Hiring of Real Property, §§ 1941-1950. III. Hiring of Personal Property, §§ 1955- 1959. CHAPTER I. HIRING IN GENERAL. § 1925. Hiring, what. § 1926. Products of thing. § 1927. Quiet possession. § 1928. Degree of care, etc., on part of hirer. § 1929. Must repair injuries, etc. § 1930. Thing let for a particular purpose. § 1931. \vhen letter may terminate the hiring. § 1932. When hirer may terminate the hiring. § 1933. When hiring terminates. § 1934. When terminated by death, etc., of party. § 1935. Apportionment of hire. § 1925. Hiring is a contract by which one gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time. Hiring personalty: See post, sees. 1955 et seq. § 1926. The products of a thing hired, during the hiring, belong to the hirer. § 1927. An agreemeni: to let upon hire binds the letter to secure to the hirer the quiet posses- sion of the thing hired during the term of the 429 HIRING. §§ 1928-1932 hiring, against all persons lawfully claiming the same. Duty of letter of building in this respect: See post, sec. 1941. Duty of letter of personalty likewise: See post, sec. 1955. § 1928. The hirer of a thing must use ordinary care for its preservation in safety and in good condition. § 1929. The hirer of a thing must repair all deteriorations or injuries thereto occasioned by his ordinary negligence. Repairs.— This requirement results from the rule of the previous section, and the same rule applies to realty: See post, sec. 1941. With respect to the consequence of not complying with its provisions, see sec. 1931, infra. § 1930. When a thing is let for a particular purpose the hirer must not use it for any other purpose: and if he does, the letter may hold him responsible for its safety during such use in all events, or may treat the contract as thereby re- scinded. § 1931. The letter of a thing may terminate the hiring and reclaim the thing before the end of the term agreed upon: 1. When the hirer uses or permits a use of the thing hired in a manner contrary to the agree- ment of the parties; or, 2. When the hirer does not, within a reasonable time after request, make such repairs as he is bound to make. § 1932. The hirer of a thing may terminate the hiring before the end of the term agreed upon: 1. When the letter does not, within a reason- §§ 1933-1935 HIRING. 430 able time after request, fulfill his obligations, if any, as to placing- and securing the hirer in the quiet possession of the thing hired, or putting it into good condition, or repairing; or, 2. When the greater part of the thing hired, or that part which was and Avhich the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the ordinary negligence of the hirer. § 1933. The hiring of a thing terminates: 1. At the end of the term agreed upon; 2. By the mutual consent of the parties; 3. By the hirer acquiring a title to the thing hired superior to that of the letter; or, 4. By the destruction of the thing hired. § 1934. If the hiring of a thing is terminable at the pleasure of one of the parties, it is termi- nated by notice to the other of his death or in- capacity to contract. In other cases it is not ter- minated thereby. § 1935. When the hiring of a thing is ter- minated before the time originally agreed upon, the hirer must i)ny the due proportion of the hire for such use as he has actually made of the thing, unless such use is merely nominal, and of no ben- efit to him. For the compensation to which a depositary for hire is entitled upon a termination of the deposit, see ante, sees. 1853-1855. 431 HIRING. §§ 1941-1943 CHAPTER II. HIRING OF REAL PROPERTY. § 1941. Lessor to make dwelling-house fit for its purpose. § 1942. \v hen lessee may make repairs, etc. § 1943. Term of hiring when no limit is fixed. § 1944. Hiring of lodgings for indefinite term. § 1945. Renewal of lease by lessee's continued possession. § 1943. Notice to quit. § 1947. Rent, when payable. § 1948. Attornment of a tenant to a stranger. § 1949. Tenant must deliver notice served on him. 5 1950. Letting parts of rooms forbidden. § 1941. The lessor of a building intended for the occupation of human beings must, in the ab- sence of an agreement to the contrary, put it into a condition lit for such occupation, and repair all subsequent dilapidations thereof, which- render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 245. In effect July 1, 1874.] § 1942. If within a reasonable time after no- tice to the lessor, of dilapidations which he ought to repair, he neglects to do so, the lessee may re- pair the same himself, where the costs of such re- pairs do not require an expenditure greater than one month's rent of the premises, and deduct the expenses of such repairs from the rent, or the lessee may vacate the premises, in which case he shall be discharged from further payment of rent, or performance of other conditions. [Amend- ment approved March 30, 1874; Amendments 1873- 4, p, 246. In effect July 1, 1874.] § 1943. A hiring of real property, other than lodgings and dwelling-houses, in places where there is no usage on the subject, is presumed to §§ 1944-194S HIRING. 432 be for one year from its commencement, unless other^yise expressed in the hiring. § 1944. A hiring of lodgings or a dwelling- house for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hir- ing at a monthly rate of rent is presumed to be for one month. In the absence of any agreement respecting the length of time or the rent, the hir- ing is presumed to be monthly. § 1945. If a lessee of real property remains in possession thereof after the expiration of the hir- ing, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time not ex- ceeding one month when the rent is payable monthly, nor in any case one year. § 1946. A hiring of real property, for a term not specified by the parties is deemed to be re- newed as stated in the last section, at the end of the term implied by law, unless one of the par- ties gives notice to the other of his intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding one month. Termination of estates at will: See ante, sees. 789 et sea. § 1947. When there is no usage or contract to the contrary, rents are payable at the termina- tion of the holding, when it does not exceed one year. If the holding is by the day, week, month, quarter, or year, rent is payable at the termina- tion of the respective periods, as it successively becomes due. § 1948. The attornment of a tenant to a stranger is void, unless it is made with the consent 433 HIRING. §§ 1949, 13&0 of the landlord, or in consequence of a judgment of a court of competent jurisdiction. Grants of rents or reversions: See ante, sec. 111. Eights of lessor and lessee, on transfer of realty: See ante, sees. 821 et sea. § 1949. Every tenant vrho receives notice of any proceeding to recover the real property occu- pied by him, or the possession thereof, must im- mediately inform his landlord of the same, and also deliver to the landlord the notice, if in writ- ing, and is responsible to the landlord for all dam- ages which he may sustain by reason of any omission to inform him of the notice, or to deliver it to him if in writing. [Amendment approved March 30, 1874; Amendments 1873-4, p. 246. In effect July 1, 1874.] § 1950. One who hires part of a room for a dwelling is entitled to the whole of the room, not- withstanding any agreement to the contrary; and if a landlord lets a room as a dwelling for more than one family, the person to whom he first lets any part of it is entitled to the possession of the whole room for the term agreed upon, and every tenant in the building, under the same landlord, is relieved from all obligation to pay rent to him while such double letting of any room continues. Cubic air law: See post, Appendix, p. 801. Civ. Code— 37 §§ 1855-1959 HIRING. 434 CHAPTER III. HIRING OF PERSONAL PROPERTY. § 1955. Obligations of letter of personal property. § 1956. Ordinary expenses. § 1957. Extraordinary expenses. § 1958. Return of thing hired. § 1959. Charter-party, what. § 1955. One ^'lio lets personal property must deliver it to the hirer, secure his quiet enjoyment thereof against all lawful claimants, put it into a condition fit for the purpose for which he lets it, and repair all deteriorations thereof not occa- sioned by the fault of the hirer and not the natural result of its use. Quiet enjoyment: See sec. 1927 ante. § 1956. A hirer of personal property must bear all such expenses concerning it as might naturally be foreseen to attend it during its use by him. All other expenses must be borne by the letter. § 1957. If a letter fails to fulfill his obligations, as prescribed by section 1955, the hirer, after giv- ing him notice to do so, if such notice can con- veniently be given, may expend any reasonable amount necessary to make good the letter's de- fault, and may recover such amount from him. § 1958. At the expiration of the term for which personal property is hired, the hirer must return it to the letter at the place contemplated by the parties at the time of hiring; or, if no particular place was so contemplated by them, at the place at which it was at that time. § 1959. The contract by which a ship is let is termed a charter party. By it the owner may either let the capacity or burden of the ship, con- 435 SERVICE. § 1965 tinuing the employuient of the owner's master, crew, and equipments, or may surrender the entire ship to the charterer, who then provides them himself. The master or a part owner may be a charterer. See ante. sec. 965. TITLE VI. SERVICE. Chapter I. Service with Employment, sees. 1965- 2003. II. Particular Employments, sees. 2009- 2072. III. Service without Employment, sees. 2U78-2079. CHAPTER I. SERVICE WITH EMPLOYMENT. Article I. Definition of Employment, § 1965. II. Obligations of the Employer, §§ 1969-1871. III. Obligations of the Employer, §§ 1975-1992. IV. Termination of Employment, §§ 1996-2003. DEFINITION OF EMPLOYMENT. ARTICLE I. § 1965. Emplojrment, what. § 1965. The contract of employment is a con tract by which one, who is called the employpr, engatres another, who is called the employee, to ecomes charged with any duty, adverse to the interest of his beneficiary in the subject of the trust, he must immediately inform the latter there- of, and may be at once removed, § 2234, Every violation of the provisions of the preceding sections of this article is a fraud against the beneficiary of the trust, § 2235. All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee re- mains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without suflScient consideration, and under undue iufltience. § 2236. A trustee who willfully and tmu(;ces- sarily mingles the trust property with his own, so as to constittite himself in appearance its absolute owner, is liable for its safety in all events. § 2237. A trustee who uses or disposes of the 481 TRUST. §§ 2238-2244: trust property, coutrary to section 222[), may, at the option of the beueticiary, be required to ac- count for all profits so made, or to pay the value of its use, and, if he has disposed thereof, to re- place it, with its fruits, or to account for its pro- ceeds, with interest. Liability for noninvestment of funds: See sec. 2262, post. Degree of diligence requisite: Sec. 2259, post. § 2238. A trustee who uses or disposes of th^ trust property in any manner not authorized by the trust, but in good faith, and with intent to serve the interests of the beneficiary, is liable only to make good whatever is lost to the beneficiary by his error. § 2239. A trustee is responsible for the wrong- ful acts of a cotrustee to which he consented, or which, by his negligence, he enabled the latter to commit, but for no others. Compare also this section with sections 2368 and 2288. ARTICLE III. OBLIGATIONS OP THIRD PERSONS. § 2243. Third person, when involuntary trustee. § 2244. When third person must see to application of trust property. § 2243. Every one to whom property is trans- ferred in violation of a trust, holds the same as an involuntary trustee under such trust, unless he purchased it in good faith, and for a valuable con- sideration. § 2244. One who actually and in good faith Civ. Code. -41. §§ 2250-2251 TRUST. 482 transfers any money or other property to a trus- tee, as such, is not bound to see to the application thereof, and his rights can in no way be prejudiced by a misapplication thereof by the trustee. Other persons must, at their peril, see to the proper ap- plication of money or other property paid or de- livered by them. CHAPTER II. TRUSTS FOR THE BENEFIT OF THIRD PERSONS. Article I. Nature and Creation of the Trust, §§ 2250-2254. II. Obligations of Trustees, §§ 2258-2263. III. Powers of Trustees, §§ 2267-2269. IV. Rights of Trustees, §§ 2273-2275. V. Termination of the Trust, §§ 2279-2283. VI. Succession or Appointment of New Trustees, §§ 2287-2289. AliTICLE I. NATURE AND CREATION OF THE TRUST. § 2250. Who are trustees within scope of this chapter. § 2251. Creation of trust. § 2252. Trustees appointed by court. § 2253. Declaration of trust. § 2254. Same. § 2250. The provisions of this chapter apply only to express trusts, created for the benefit of another than the trustor, and in which the title to the trust property is vested in the trustee; not in- cluding, however, those of executors, administra- tors, and guardians, as such. § 2251. The mutual consent of a trustor and trustee creates a trust of which the beneficiary may take advantage at any time prior to its re- scission. Revoking trust, beneficiary's consent necessary: See sec. 2280. 483 TRUST. §§ 2252-2259 Promise for beuetit of tliird person: See ante, sec. 1559. § 2252. When a trustee is appointed by a court or public otllcer, as sucli, sucli court or officer is ilie trustor, within the meaning of the last section. § 2253. The nature, extent, and object of a trust are expressed in the declaration of trust. S 2254. All declarations of a trustor to his trus- tees, in relation to the trust, before its acceptance by the trustees, or any of them, are to be deemed l)art of the declaration of the trust, except that when a declaration of trust is made in writing, all previous declarations by the same trustor are merged thereon. articlp: II. OBLIGATIONS OF TRUSTEES. ? 2258. Trustees must obey declaration of trust. .$ 2259. Degree of care and diligence in execution of trust. § 2260. Duty of trustee as to appointment of successor. 5 2261. Investment of money by trustee. S 2262. Interest, simple or compound, on omission to in- vest trust moneys. § 2263. Purchase by trustee of claims against trust fund. § 2258. A trustee must fulfill the purpose of The trust, as declared at its creation, and must fol- low all the directions of the trustor given at that rime, except as modified by the consent of all par- ties interested, in the same manner, and to the same extent, as an employee. Trustee must follow declaration of trust: Cora- pare with the duty of employee, sec. 19S1, ante. Authority of trustee, generally: Se^see. 2267, post. i5 2259. A trustee, whether he receives any compensation or not, must use at least ordinary care and diligence in the execution of his trust. §§ 2260-2263 TRUST. 484 Obligations of trustees: See, generally, ante, sees. 2228 et seq. § 2260. If a trustee procures or assents to his discharge from his office, before his trust is fully executed, he must use at least ordinary care and diligence to secure the appointment of a trust- worthy successor before accepting his own final discharge. Succession or appointment of new trustees: See post, sec. 2287. § 2261. A trustee must invest money received by him under the trust, as fast as he collects a sufficient amount, in such manner as to afford rea- sonable security and interest for the same. § 2262. If a trustee omits to invest the trust moneys according to the last section, he must pay simple interest thereon, if such omission is neg- ligent merely, and compound interest if it is will- ful. "^Trustee's liability for interest: Compare with sec. 2237, ante. § 2263. A trustee cannot enforce any claim against the trust property which he purchases af- ter or in contemplation of his appointment as trus- tee; but he may be allowed, by any competent court, to charge to the trust property what he has in good faith paid for the claim, upon discharging the same. Purchasing debts agninst tlio trust ostnto pro- liibiterl: See sec. 22.30. ante. 485 TRUST. §§ 2267-2269 AKTICLE III. POWERS OF TRUSTEES. § 2267. Trustee's powers as agent. § 2268. All must act. § 2269. Discretionary powers. § 2267. A trustee is a geueral agent for the trust property. His autliority is such as is con- ferred upon him by the declaration of trust and l)y this chapter, and none other. His acts, within the scope of his authority, bind the trust property to the same extent as the acts of an agent bind his principal. Powers to two or more trustees: See sec. 2288, post, and sec. 860, ante. Agent's acts binding principal: See sees. 2330- 2339, post. For what purposes trusts may be created: See sec. 857. ante. § 2268. Where there are several cotrustees, all must unite in any act to bind the trust property, unless the declaration of trust otherwise provides. Survival of trust: See post, sec. 2288. Liability for acts of cotrustee: See ante, sec. 2239. Executors, when one or majority may act: See rode Civ. Proc. sec. 1355. § 2269. A discretionary power conferred upon a trustee is presumed not to be left to his arbi- trary discretion, btit may be controlled by the l»roper court if not reasonably exercised, unless an absolute discretion is clearly conferred by the dec- laration of trust. 2273-2275 TRUST. ARTICLE IV. RIGHTS OF TRUSTEES. § 2273. Indemnification of trustee. § 2274. Compensation of trustee. § 2275. Involuntary trustee. § 2273. A trustee is entitled to tlie repayment, out of tlie trust property, of all expenses actually and properly incurred by liim in the performance of his trust. He is entitled to the repayment of even unlaAvful expenditures, if they were produc- tive of actual benefit to the estate. § 2274. Except as provided in section 1700 of the Code of Civil Procedure, Avhen a declaration of trust is silent upon the subject of compensa- tion the trustee is entitled to the same compensa- tion as an executor. If it specifies the amount of his compensation, he is entitled to the amount thus specified and no more. If it directs that he shall be allowed a compensation, but does not specify the rate or amount, he is entitled to such compensation as may be reasonable under the cir- cumstances. [Amendment approved March 19. 1889; Stats. 1889. 334. In effect March 19, 1889.] Compensation of trustees the same as that of executor where the declaration of trust is silent: See sec. 1618. Code Civ. Proc. Involuntary trustee entitled to no compensation, wnen: see sec. 227o. § 2275. An involuntary trustee, who becomes such through his own fault, has none of the rights mentioned in this article. Involuntary trustee defined: Sees. 2217. 222:^>. 2224. ante. TRUST. S§ 2279-2282 ARTICLE V. TERMINATION OF THE TRUST. § 2279. Trust, how extinguished. § 2280. Not revocable. § 2281. Trustee's office, how vacated. § 2282. Trustee, how discharged. § 2283. Removal by District Court. § 2279. A trust is extiugiiislied by the entire fiiltillmeut of its object, or by such object becom- iug possible or nulawfiil. § 2280. A trust cauuot be revoked by the trus- tor after its acceptance, actual or presumed, by tlie trustee and beneficiaries, except by the con- sent of all the beneficiaries, unless the declaration of trust reserves a power of revocation to the trustor, and in that case the power must be strict- ly pursued. ^ 2281. The ottice of a trustee is vacated: 1. By his death; or, •J. By his discharge. § 2282. A trustee can be discharged from his trust only as follows: 1. By the extinction of the trust: 2. By the completion of his duties under the Trust: o. By such means as may be prescribed T)y the ileclaration of trust: 4. By the consent of the beneficiary, if he had capacity to contract: .'. By the judgment of a competent tribunal, in a direct proceeding for that purpose, that he is of unsound mind: or. 6. By the Superior Court. [Amendment ap- proved' Feb. 1.5. 1883: Statutes 1883. 3. In effect February 15. 1883.1 §§ 2283-2289 TRUST. 488 § 2283. The Superior Court may remove any trustee who has violated or is unfit to execute the trust; or may accept the resignation of a trustee. [Amendment, approved April 6, 1880; Amen«lments 1880, 8. In effect April 5, 1880.] ARTICLE VI. SUCCESSION OR APPOINTMENT OF NEW TRUSTEES. § 2287. Vacant trusteeship filled by court. § 2288. Survivorship between co-trustees. § 2289. District Court as trustee. § 2287. The Superior Court may appoint a trustee whenever there is a vacancy, and the dec- laration of trust does not provide a practicable method of appointment. [Amendment, approved April 6, 1880; Amendments 1880, 8. In effect April 5, 1880.] § 2288. On the death, renunciation, or dis- charge of one of several cotrustees, the trust sur- vives to the others. This section is consistent with section 860; see also sec. 2268, ante. Survival of guardianship: See sec. 252, ante. § 2289. When a trust exists without any ap- pointed trustee, or where all the trustees renounce, die. or are discharged, the Superior Court of the county where the trust property, or some portion thereof, is situated must appoint another trustee, and direct the execution of the trust. The court may, in its discretion, appoint the original num- ber, or any less number of trustees. [Amend- ment, approved April 6. 1880; Amendments 1880. 8. In effect April 5, 1880.] 489 AGENCY. §§ 2295, 2296 TITLE IX. AGENCY. (^'bapter 1. II. Agency iu General. §§ 2295-2356. Particular Agencies, §§ 2362-2389. Article I. II. III. IV. V. VI. CHAPTER I. AGENCY IN GENERAL. Definition of Agency, §§ 2295-2300. Authority of Agents, §§ 2304-2326, Mutual Obligations of Principals and Third Per- sons, §§ 2330-2339. Obligations of Agents to Third Persons, §§ 2342- 2345. Delegation of Agency, §§ 2349-2351. Termination of Agency, §§ 2355-2356. AKTICLE I. DEFINITION OP AGENCY. § 2295. Agency, what. § 2296. Who may appoint, and who may be an agent. § 2297. Agents, general or special. § 2298. Agency, actual or ostensible. § 2299. Actual agency. § 2300. Ostensible agency. § 2295. An agent is one who represents an- other, called the principal, in dealings with third persons. Such representation is called agency. Master and servant: See sees. 2009 et seq. Factors: See sees. 2026 et seq. Agents: See sees. 2019-2022. § 2296. Any person having capacity to con- tract may appoint an agent, and any person may be an agent. §§ 2297-2300 AGENCY. 490 § 2297. An ageut for a particular act or traus- actiou is called a special agent. All others are general agents. § 2298. An agency is either actual or osten- sible. Actual agent's authority: Sees. 2315, 2316, 2318. 2319. Ostensible agent's authority: Sees. 2315, 2317- 2319, 2334. § 2299. An agency is actual when the agent is really employed by the principal. § 2300. An agency is ostensible when the prin- cipal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. See sec. 2317. ARTICLE II. AUTHORITY OP AGENTS. § 2304. What authority may be conferred. § 2305. Agent may perform acts required of principal by Code. § 2306. Agent cannot have authority to defraud principal. 07. Creation of agency. § 2308. Consideration unnecessary. § 2309. Form of authority. § 2310. Ratification of agent's act. § 2311. Ratification of part of a transaction. § 2312. When ratification void. § 2313. Ratification not to work injury to third persons. S 2314. Rescission of ratification. § 2315. Measure of agent's authority. § 2316. Actual authority, what. § 2317. Ostensible authority, what. § 2318. Agent's authority as to persons having notice of restrictions upon it. § 2319. Agent's necessary authority. § 2320. Agent's power to disobey instructions. § 2321. Authority to be construed by its specific rather than by its general terms. 491 AGENCY. §§ 2304-2309 § 2322. Exceptions to general authority. § 2323. What included in authority to sell personal prop- erty. § 2324. What included in authority to sell real property. § 2325. Authority of general agent to receive price of prop- erty. § 2326. Authority of special agent to receive price. § 2304. Au ageut may he authorized to do any acts which liis principal miglit do, except those to which the latter is bound to give his personal attention. Delegation of antliority l)y agent: Sees. 2849- li.-'.ol. § 2305. Every act which, according to this ("ode, may be done by or to any person, may be done by or to the agent of such person for that ]iurpose. unless a contrary intention clearly ap- l>cars. § 2306. An agent can never have authority, either actual or ostensible, to do an act which is, and is linown or suspected by the person with whom he deals to be, a fraud upon the principal. § 2307. An agency may be created, and an au- ihority may be conferred, by a precedent author- ization or a subsequent ratification, § 2308. A consideration is not necessary to malie an authority, whether precedent or subse- cxccnrc mortgage: Sit so<-. 2083. post. §§ 2310-2317 AGENCY. 492 § 2310. A ratiticatiou cau be made only iu the manuer that would have been necessary to con- fer an original authority for the act ratified, or Avhere an oral authorization would suffice, by ac- cepting or retaining the benetit of the act, with notice thereof. A ratification is not binding, and may be re- scinded, if made without full knowledge of the facts: See sec. 2314, post. Ratification of part: See sec. 2311. § 2311. Ratification of part of an indivisible transaction is a ratification of the whole. See sec. 2323, post. § 2312. A ratification is not valid unless, at the time of ratifying the act done, the principal has power to confer authority for such an act. § 2313. No unauthorized act can be made valid, retroactively, to the prejudice of third per- sons, without their consent. § 2314. A ratification may be rescinded when made without such consent as is required in a con- tract, or with an imperfect knowledge of the ma- terial facts of the transaction ratified, but not otherwise. § 2315. An agent has such authority as the principal, actually or ostensibly, confers upon him. See infra. 2319. Actual agent defined: Sec. 2299. § 2316. Actual authority is such as a principal intentionally confers upon the agent, or inten- tionally, or by want of ordinary care, allows the agent to believe himself to possess. § 2317. Ostensible authority is such as a prin- cipal, intentionally or by want of ordinary care, i93 AGENCY. §§ 2318-2321 causes or allows a third person to believe the agent to possess. Ostensible agent defined: Sec. 2300. Estoppel. — This is a statement of the familiar principle that the agent's authority extends as far as he has been held out to the world as possessing the power which he uses. The whole principle of implied agency is really an application of the doc- trine of estoppel in pais. Estoppel from a subsequent ratification: See sees. 2307, 2310, 2312-2314, ante. § 2318. Every agent has actually such author- ity as is defined by this title, unless specially de- prived thereof by his principal, and has even then such authority ostensibly, except as to persons who have actual or constructive notice of the re- striction upon his authority. § 2319. An agent has authority: 1. To do every thing necessary or proper and usual, in the ordinary course of business, for ef- fecting the purpose of his agency; and, 2. To make a representation respecting any matter of fact, not including the terms of his au- thority, but upon which his right to use his au- thority depends, and the truth of which cannot be determined by the use of reasonable diligence on the part of the person to whom the representation is made. § 2320. An agent has power to disobey in- structions in dealing with the subject of the agency, in cases where it is clearly for the inter- est of his principal that he should do so, and there- is not time to communicate with the principal. § 2321. When an authority is given partly in general and partly in specific terms, the general authority gives no higher powers than those spe- cifically mentioned. Civ. Code.-42. §§ 2322-2326 AGENCY. 494 § 2322. Au authority expressed in general terms, however broad, does uot authorize au agent: 1. To act in his own name, unless it is the usual course of business to do so; 2. To define the scope of his agency; or, 3. To do any act which a trustee is forbidden to do by Article II., Chapter I., of the last Title. Defining scope of agency: See sec. 2319, subd. 2, ante. Obligation of trustees: Sees. 2228-2239, ante. § 2323. An authority to sell personal property includes authority to warrant the title of the prin- cipal, and the quality and quantity of the prop- erty. Auctioneers: See sec. 2362, subd. 3, post. § 2324. An authority to sell and convey real property includes authority to give the usual cove- nants of warranty. § 2325. A general agent to sell, who is intrust- ed by the principal with the possession of the thing sold, has authority to receive the price. Agent to collect: Ante, sec. 2021. § 2326. A special agent to sell has authority to receive the price on delivery of the thing sold, but not afterwards. 495 AGENCY. §§ 2330-2333 ARTICLE III. MUTUAL OBLIGATIONS OF PRINCIPALS AND THIRD PERSONS. § 2330. Principal, how affected by acts of agent within the scope of his authority. § 2331. Principal, when bound by incomplete execution of authority. § 2332. Notice to agent when notice to principal. § 2333. Obligation of principal when agent exceeds his au- thority. § 2334. For acts done under a merely ostensible authority. § 2335. When exclusive credit is given to agent. § 2336. Rights of person who deals with agent without knowledge of agency. § 2337. Instrument intended to bind principal does bind him. § 2338. Principal's responsibility for agent's negligence or omission. § 2339. Principal's responsibility for wrongs willfully com- mitted by the agent. § 2330. An agent represents his principal for all purposes within the scope of his actual or os- tensible authority, and all the rights and liabili- ties which would accrue to the agent from trans- actions within such limit, if they had been entered into on his own account, accrue to the principal: See sec. 2322, subd. 3. ante. § 2331. A principal is bound by an incomplete execution of an authority, when it is consistent with the whole purpose and scope thereof, but not otherwise. § 2332. As against a. principal, both principal and agent are deemed to hare notice of whatever either has notice of, and ought, in good faith, and the exercise of ordinary care and diligence, to communicate to the other. § 2333. When an agent exceeds his authority, his principal is bound by his authorized acts so far §§ 2334-2339 AGENCY. 496 only as tliey can be plainly separated from those which are unauthorized. § 2334. A principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without ordinary negligence, incurred a liability or parted with value, upon the faith thereof: See sec. 2317, ante. § 2335. If exclusive credit is given to an agent by the person dealing with him, his principal is exonerated by payment or other satisfaction made by him to his agent in good faith, before receiv- ing notice of the creditor's election to hold him responsible. § 2336. One who deals with an agent without knowing or having reason to believe that the agent nets as such in the transaction, may set off against any claim of the principal arising out of the same, all claims which he might have set off against the agent before notice of the agency. § 2337. An instrument within the scope of his authority, by which an agent intends to bind his principal, does bind him if such intent is plainly inferable from the instrument itself. § 2338. Unless required by or under the au- thority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfil the obligations of the principal: See sec. 2384, post, and see sec. 2343, subd. 3, post. § 2339. A principal is responsible for no other wrongs committed by his agent than those men- tioned in the last section, unless he has authorized 497 AGENCY. §§ 2342-2344 or ratiiied them, even though they are committed while the agent is engaged in his service. ARTICLE IV. OBLIGATIONS OF AGENTS TO THIRD PERSONS. § 2342. Warranty of authority. § 2343. Agent's responsibility to third persons. § 2344. Obligation of agent to surrender property to third person. § 2345. Agent not having capacity to contract. § 2342. One who assumes to act as an agent thereby warrants, to all who deal with him in that capacity, that he has the authority which he as- sumes. Damages for breach of warrant of authority: Sec. 3318, post. § 2343. One who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency, in any of the following cases, and in no others: 1. When, with his consent, credit is given to him personally in a transaction; 2. When he enters into a written contract in the name of his principal, without believing, in good faith, that he has authority to do so; or, 3. When his acts are wrongful in their nature. Master of ship personally liable: Sec. 2382, post. § 2344. If an agent receives anything for the benefit of his principal, to the possession of which another person is entitled, he must, on demand, surrender it to such person, or so much of it as he has under his control at the time of demand, on being indemnified for any advance which he has made to his principal, in good faith, on account of the same: and is responsible therefor, if, after ■^ •234»-2351 AGENCY. 498 notice from the owuer, lie delivers it to his prin- cipal. Compare with sections on deposit, sees. 1822, 1825, 1826, ante. § 2345. The provisions of this article are sub- ject to the provisions of Part I, Division First, of this Code. [§§ 25-42.] AKTICLE V. ■ DELEGATION OF AGENCY. § 2349. Agent's delegation of his powers. § 2350. Agent's unauthorized employment of sub-agent. § 2351. Sub-agent rightfully appointed, represents prin- cipal. § 2349. An agent, unless specially forbidden by his principal to do so, can delegate his powers to another person in any of the following cases, and in no others: 1. When the act to be done is purely mechan- ical; 2. When it is such as the agent cannot himself, and the subagent can lawfully perform; ;l When it is the usage of the place to delegate such powers; or. 4. AVhen such delegation is specially authorized by the principal. § 2350. If an agent employs a subagent with- out authority, the former is a principal and the latter his agent, and the principal of the former has no connection witli the latter. See sec. 2022, ante. § 2351. A subagent. lawfully appointed, repre- sents tlie principal in like manner with the orig- inal agent: and the original agent is not responsi- ble to third persons for the nets of the subagent. 499 AGENCY. §§ 2355-2362 ARTICLE VI. TERMINATION OF AGENCY. § 2355. Termination of Agency. § 2356. Same. § 2355. An agency is terminated, as to every pc-rson baYin?>- notice thereof, by: 1. The expiration of its term; 2. The extinction of its subject; 0. The death of the agent; 4. His renunciation of the agency, or, r>. The incapacity of the agency to act as such. As to duty of gratuitous employee: See sec. 1975, ante. § 2356. Unless the power of an agent is cou- pled with an interest in the subject of the agency, it is terminated, as to every person having notice thereof, by: 1. Its revocation by the principal; o His death: or. 3. His incapacity to contract. CHAPTER II. PARTICULAR AGENCIES. Article I. Auctioneers, §5 2362-2363. II. Factors, §§ 2367-2369. III. Shipmasters and Pilots, §§ 2373-2385. IV. Ships' Managers, §§ 2388-2389. ARTICLE I. AUCTIONEERS. § 2362. Auctioneer's authority from the seller. ? 2363. Auctioneer's authority from the bidder. § 2362. An auctioneer, in the absence ')f spec- ial authorization or usage to the contrary, has au- rhoritv from the seller onlv as follows: §§ 2363-2368 AGENCY. 500 1. To sell by public auction to the highest bid- der; 2. To sell for cash only, except such articlis as are usually sold on credit at auction; 3. To warrant, in like manner with other agents to sell according to section 2323; 4. To prescribe reasonable rules and terms of sale; 5. To deliver the thing sold, upon payment of the price; 6. To collect the price; and, 7. To do whatever else is necessary, or proper and usual, in the ordinary course of business, for effecting these purposes. See Polit. Code, sees. 3284 et seq. § 2363. An auctioneer has authority from a bidder at the auction, as well as from the seller, to bind both by a memorandum of the contract, as prescribed in the Title on Sale. Concerning auctioneers: Polit. Code, sees. 3284- 3324. See sec. 1798, ante; and see generally the chap- ter on "Sale by Auction." sees. 1792-1798, ante. ARTICLE II. FACTORS. § 2367. Factor, what. § 2368. Actual authority of factor. § 2369. Ostensible authority. § 2367. A factor is an agent, as defined by sec- tion 2026. § 2368. In addition to the authority of agents in general, a factor has actual authority from his principal, unless specially restricted; 1. To insure property consigned to him unin- sured; 501 AGENCY. § 2369-2374 2. To sell, on credit, anything intrusted to him for sale, except such things as it is contrary to usage to sell on credit; but not to pledge, mort- gage, or barter the same; and, 3. To delegate his authority to his partner or servant, but not to any person in an independent employment. See sec. 2991, post. § 2369. A factor has ostensible authority to deal with the property of his principal as his own, in transactions with persons not having notice of the actual ownership. ARTICLE III. SHIPMASTERS AND PILOTS. § 2373. Authority of shipmaster on behalf of shipowner. § 2374. Authority to borrow. § 2375. Authority on behalf of owners of cargo. § 2376. Power to make contracts. § 2377. Power to hypothecate. § 2378. Master's power to sell ship. § 2379. Master's power to sell cargo. § 2380. Authority to ransom ship. § 2381. Abandonment terminates master's power, § 2382, Personal liability for contracts concerning the ship. § 2383. Liability for acts of persons employed upon the ship. § 2384. Responsibility for negligence of pilot. § 2385. Obligations of shipowner to owner of cargo. § 2373. The master of a ship is a general agent for its owner in all matters concerning the same. Note.— This article is chiefly confined to defining the authority of ship-masters. His duties wllr bel found in sees. 2034-2044, ante. § 2374. The master of a ship has authority to borrow money on the credit of its owner, if it is necessary to enable him to complete the voyage. §§ 2375-237S AGENCY. 502 and if neither the owner nor his proper agent for such matters can be consulted without injurious delay. § 2375. The master of a ship, during a voyage, is a general agent for each of the owners of the cargo, and has authority to do whatever they might do for the preservation of their respective interests, but he cannot sell or hypothecate the cargo, except in the cases mentioned in this arti- cle. [Amendment approved March 30, 1874; Amendments 1873-4, 251. In effect July 1, 1874.] § 2376. The master of a ship may procure all its necessary repairs and supplies, may engage cargo and passengers for carriage, and, in a for- eign port, may enter into a charter party; and his contracts for these purposes bind the owner to the full amount of the value of the ship and freight- age. § 2377. The master of a ship may hypothecate the ship, freightage, and cargo, and sell part of the cargo, in the cases prescribed by the chapters on bottomry and respondentia, and in no others, ex- cept that the master may also sell the cargo or any part of it, short of the port of destination, if found to be of such perishable nature, or in such damaged condition that, if left on board or reshipped. it would be entirely lost, or would seri- ously endanger the interests of its owners. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 252. In effect July 1, 1874.] See sees. 2320, ante, and 3017 et seq. § 2378. When a ship, whether foreign or do- mestic, is seriously injured, or the voyage is other- w-ise broken up, beyond the possibility of pursu- ing it, the master, in case of necessity, may sell the ship without instructions from the owners, unless bv the earliest use of ordinary means of 5«J3 AGENCY. §§ 2379-2384 eommuuicatioii he eau iuforrn the owners, and await their instructions. ^ 2379. The master of a ship may sell the car- ^^o, if the voyage is broken up beyond the possi- bility of ptirsiiing- it, and no other ship can be ob- tained to carry it to its destination, and the sale is otherwise absolutely necessary. Compare post sec. 2707. § 2380. The master of a ship, in case of its capture, may engage to pay a ransom for it, in money or in part of the cargo, and his engagement Avill bind the ship, freightage, and cargo. § 2381. The power of the master of a ship to bind its owner, or the owners of the cargo, ceases tipon the abandonment of the ship and freightage to insurers. ;^ 2382. Unless otherwise expressly agreed, or unless the contracting parties give exclusive credit to the owner, the master of a ship is personally lia- ble upon his contracts relative thereto even when the owner is also liable. Personal liability of agent: See ante. sec. 2343. >j 2383. The master of a ship is liable to third persons for the acts or negligence of persons em- ployed in its navigation, whether appointed by him or not. to the same extent as the owner of the ship. § 2384. The owner or master of a ship is not responsible for the negligence of a pilot whom he is bound by law to employ: but if he is allowed an option between pilots, some of whom are compe- tent, or is required only to pay compensation to a pilot, whether he employs him or not. he is so re- sponsible to third persons. See sec. 2338, ante. §§ 2385-2389 PARTNERSHIP. 604 § 2385. The owner of a ship is bound to pay to the owner of her cargo the market value at the time of arrival of the ship at the port of her des- tination, of that portion of her cargo which has been sold to enable the master to pay the neces- sary repairs and supplies of the ship. [New sec- tion, approved March 30, 1874; Amendments 1873- 4, 252. In effect July 1, 1874.] ARTICLE IV. SHIPS' MANAGERS. § 2388. What powers manager has. § 2389. What powers he has not. § 2388. A ship's manager has power to make contracts requisite for the performance of his du- ties as such; to enter into charter-parties, or make contracts for carriage; and to settle for freightage and adjust averages. See sees. 2070-2072. § 2389. Without special authority, a ship's manager cannot borrow money or give up the lien for freightage, or purchase a cargo, or bind the owners of the ship to an insurance. TITLE X. PARTNERSHIP. Chapter I. Partnership in General, §§ 2395-2418. II. General Partnership, §§ 2424-2471. III. Special Partnership, §§ 2477-2510. IV. Mining Partnership, §§ 2511-2520. 505 PARTNERSHIP. §§ 2395-2397 CHAPTER I. PARTNERSHIP IN GENERAL. Article I. What Constitutes a Partnership, §§ 2395-2397. II. Partnership Property, §§ 2401-2406. HI. Mutual Obligations of Partners, §§ 2410-2418. IV. Renunciation of Partnership, §§ 2417-2418. ARTICLE I. WHAT CONSTITUTES A PARTNERSHIP. § 2395. Partnership, what. § 2396. Shipowners. § 2397. Formation of partnership. § 2395. Partnership is the association of two or more persons, for the purpose of carrying on business together, and dividing its profits between them. See section 2445, where the above question as to division of profits evidencing partnership is set- tled. Dividing profits implies division of losses: Sec. 2404, post. § 2396. Part owners of a ship do not, by sim- ply using it in a joint enterprise, become partners as to the ship. § 2397. A partnership can be formed only by the consent of all the parties thereto, and there- fore, no new partner can be admitted into a part- nership without the consent of every existing member thereof. See sec. 2516, post. Civ. Code.-43. §§ 2401-2405 PARTNERSHIP. ^ 506 AirncLE II. PARTNERSHIP PROPERTY. § 2401. Partnership property, what. § 2402. Partner's interest in partnership property, § 2403. Partner's share in profits and losses. § 2.04. When division of losses implied. § 2405. Partner may require application of partnership property to payment of debts. § 2403. v» hat property is partnership property by presump- tion. § 2401. The property of a partnership coiisists of all that is coutribiitecl to the common stoeli at the formation of the partnership, and all that is subsequently acquired thereby. § 2402. The interest of each member of a part- uersliip extends tp every portion of its property. § 2403. In the absence of any agreement on the subject, the shares of partners in the profit or loss of the business are equal, and the share of each in the partnership property is the value of his original contribution, increased or diminished by his share of profit or loss. Mining partnerships.— Here each member shares in the profit and loss proportionately to the inter- est he holds: Sec. 2513, post. § 2404. An agreement to divide the profits of a business implies an agreement for a correspond- ing division of its losses, unless it is otherwise expressly stipulated. § 2405. Each member of a partnership may re- quire its property to be applied to the discharge of its debts, and has a lien upon the shares of the other partners for this purpose, and for the pay- ment of the general balance if any due to liini. See sees. 262, 263. 507 PARTNERSHIP. §§ 2406-2413 ?; 2406. Property, whether real or personal, ac- quired with partnership funds, is presumed to be I>artnership property. ARTICLE III. MUTUAL OBLIGATION OF PARTNERS. § 2410. Partners trustees for each other. § 2411. Good faith to be observed between them. § 2412. Mutual liability of partners to account. § 2413. No compensation for services to firm. § 2410. The relations of partners are confiden- tial. They are trustees for each other within the meaning of chapter I of the Title on Trusts, and their obligations as such trustees are deQned by that chapter. § 2411. In all proceedings connected with the formation, conduct, dissolution, and liquidation of a partnership, every partner is bound to act in the highest good faith toward his copartners. He may not obtain any advantage over them in the partnership affairs by the slightest misrepresen- tation, concealment, threat, or adverse pressure of any kind. See sec. 2435. post, sec. 2406. ante. § 2412. Each member of a partnership must account to it for everything that he receives on account thereof, and is entitled to reimbursement therefrom for everything that he properly ex- pends for the benefit thereof, and to be indemni- fied thereby for all losses and risks which he nec- essarily incurs on its behalf. Partners' acts bind firm: Sec. 2429. post. § 2413. A partner is not entitled to any compen- sation for services rendered by him to the part- nership. §§ 2-117-2418 PARTNERSHIP. 608 AKTICLE IV. RENUNCIATION OF PARTNERSHIP. § 2417. Renunciation of future profits exonerates from lia- bility. § 2418. Effect of renunciation. § 2417. A partner may exonerate himself from all future liability to a third person, on account of the partnership, by renouncing, in good faith, all participation in its future prolits, and giving notice to such third person, and to his own co- partners, that he has made such renunciation, and that, so far as maj^ be in his power, he dissolves the partnership and does not intend to be liable on account thereof for the future. Dissolution of partnership: See sees. 2449 et seq. § 2418. After a partner has given notice of his renunciation of the partnership, he cannot claim any of its subsequent profits, and his co- partners may proceed to dissolve the partnership. CHAPTER II. GENERAL PARTNERSHIP. Article I. AVhat is a General Partnership!^ § 2424. II. Powers and Authority of Partners. §§ 2428-2431. III. Mutual Obligations of Partners, §§ 2435-2438. IV. Liability of Partners, §§ 2442-2445. V. Termination of Partnership, §§ 2449-2454. VI. Liquidation. §§ 2458-2432. VII. Of the Use of Fictitious Names, §§ 2466-2471. f.09 PARTNERSHIP. §§ 2424-2430 ARTICLE I. WHAT IS A GENERAL PARTNERSHIP. § 2424. General partnership what. § 2424. Every partnership that is not formed in accordance with the law concerning special or mining- partnerships, and every special partnership so lar only as the general partners are concerned, is a general partnership. Special partnerships: See sees. 24T7-.2510, post. Mining partnerships: See sees. 2511-2520, post. ARTICLE II. POWERS AND AUTHORITY OF PARTNERS. § 2428. Power of majority of partners. § 2429. Authority of individual partner. § 2430. What authority partner has not. § 2431. Partner's acts in bad faith, when ineffectual. § 2428. Unless otherwise expressly stipulated, the decision of the majority of the members of a general partnership binds it in the conduct of its lousiness. Mining partnerships: Sec. 2520, post. § 2429. Every general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his copartners by an agree- ment in writing. Common liability for losses: See sec. 2412. § 2430. A partner, as such, has not authority to do any of the following acts, unless his copart- §§ 2431-243G PARTNERSHIP. 510 ners have wholly abaudoued the business to hiui, or are incapable of acting: 1. To malce an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust for tlie beuelit of a creditor or of all creditors; 2. To dispose of the goodwill of the business; 3. To dispose of the whole of the partnership property at once, unless it consists entirely of merchandise; 4. To do any act which would make it impossi- ble to carry on the ordinary business of the part- nership; 5. To confess a judgment; 6. To submit a partnership claim to arbitration; 7. To do any other act not within the scope of I ho preceding section. Subd. 7. Want of authority in general. See sec. 242!). ante. >5 2431. A partn(>r is not bound by any act of a copnrtner in bad faith towaid him, though with- in the scope of the partner's powers, except in favor of i)ersons who have in good faith parted with value in reliance upon such act. Good faith, duty to observe: See sec. 2111, ante, sec. 2403, ante. ARTICLE III. MUTUAL OBLIGATIONS OF PARTNERS. § 2435, Profits of individual partner. § 2436. In what business partner may not engage. § 2437, In what he may engage. § 2438. Must account to firm for profits. § 2435. All profits made by a general partner, in the course of any business usually carried on by the partnership, belong to the firm. § 2436. A general partner, who agrees to give 5U PARTNERSHIP. §§ 2437-2414 Uis personal atteutiou to the business of the pnrt- uersliip, may not engage in any business which gives liim an interest adverse to that of tlie part- nership, or which prevents liim from giving to such business all the attention which would be advantageous to it. See sec. 2438, post. § 2437. A partner may engage in any separate business, except as otherwise provided by the last two sections. § 2438. A general partner transacting business contrary to the provisions of this article may be required by any copartner to account to the part- nership for the profits of such business. ARTICLE IV. LIABILITY OP PARTNERS. § 2442. Liability of partners to third persons. § 2443. Liability for each other's acts as agents. § 2444. Liability of one held out as partner. if 2445. No one liable as partner unless held out as such. § 2442. Every general partner is liable to third persons for all the obligations of the partnership, jointly with his copartners. § 2443. The liability of general partners for (^ach other's acts is defined by the Title on Agen- cy. See sees. 2429, 2430, ante. § 2444. Any one permitting himself to be rep- resented as a partner, general or special, is liable, as such to third persons to whom such represen- tation is communicated, and who, on the faith thereof, give credit to the partnership. §§ 2445-2451 PARTNERSHIP. 612 § 2445. No one is liable as a partner who is not HUL-ii in fact, except as provided in the last sec- tion. ARTICLE y. TERMINATION OF PARTNERSHIP. § 2449. Duration of partnership. § 2450. Total dissolution of partnership. § 2451. Partial dissolution. § 2452. Partner entitled to dissolution. § 2453. Notice of termination. § 2454. Notice by change of name. § 2449. If no term is prescribed by agreement for its duration, a general partnership continues until dissolved by a partner or by operation of law. Dissolution of special partnership: See sec. 2509, post. § 2450. A general partnership is dissolved as to nil the partners: 1. By lapse of the time prescribed by agree- ment for its duration; 2. By the expressed will of any partner, if there is no such agreement; 3. By the death of a partner; 4. By tlie transfer to a person, not a partner, of the interest of any partner in the partnership property; 5. By war, or the prohibition of commercial in- ter'course between the country in which one part- ner resides and that in which another resides; or, 6. By a judgment of dissolution. Partner's power after dissolution of firm: See sees. 2458 et seq., post. § 2451. A general partnership may be dis- solved, as to himself only, by the expressed will of any partner, notwithstanding his agreement 513 PARTNERSHIP. §§ 2452-2454 for its continuance, subject, however, to liability to bis copartners for any damage caused to them thereby, unless the circumstances are such as en- title him to a judgment of dissolution. § 2452. A general partner is entitled to a judg- ment of dissolution: 1. When he, or another partner, becomes le- gally incapable of contracting; 2. Wlien another partner fails to perform his duties under the agreement of partnership, or is guilty of serious misconduct; or, 3. When the busines of the partnership can be carried on only at a permanent loss. § 2453. The liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of per- sons who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dissolution; and in favor of other persons until such dissolution has been advertised in a newspaper published in every county where the partnership, at the time of its dissolution, had a place of business, if a newspaper is there published, to the extent in either case to which such persons part with val- ue in good faith, and in the belief that such part- ner is still a member of the firm. Compare sec. 2509, post, where "by act of the partners" is the qualifying phrase used. § 2454, A change of the partnership name, which plainly indicates the withdrawal of a part- ner is sufficient notice of the fact of such with- drawal to all persons to whom it is communicated; but a change in the name, which does not con- tain such an indication is not notice of the wiiu- drawal of any partner. |§ 2458-2462 PARTNERSHIP. 514 ARTICLE VI. LIQUIDATION. § 2458. Powers of partners after dissolution. § 2459. Who may act in liquidation. § 24C0. Who may not act in liquidation. § 2461. Powers of partners in liquidation. { 2462. What partner may do in liquidation. § 2458. After the dissolution of a partner- ship, the powers and authority of the partners are such only as are prescribed by this article. § 2459. Any member of a general partnership may act in liquidation of its affairs, except as pro- vided by the next section. § 2460. If the liquidation of a partnership is committed, by consent of all the partners, to one or more of them, the others have no right to act therein; but their acts are valid in favor of per- sons parting witli value, in good faith, upon credit thereof. § 2461. A partner authorized to act in liquida- tion may collect, compromise, or release any debts due to the partnership, pay or compromise any claims against it, and dispose of the partnership property. § 2462. A partner authorized to act in liquida- lion may indorse, in the name of the firm, promis- sory- notes, or other obligations held by the part- nership, for the purpose of collecting the same, but he cannot create any new obligation in its name, or revive a debt against the firm, by an acknowledgment when an action thereon is bar- red under the provisions of the Code of Civil Pro- cedure. [Amendment, approved March 30, 1874: •Vraendments 1873-4, 252. In effect July 1. 1874.] 515 PARTNERSHIP. §§ 2466-2468 ARTICLE VII. OF THE USE OF FICTITIOUS NAMES. j 2466. Fictitious name, j 2467. Style of foreign partnership. ^ 246S. Certificate, when to be filed. § 2463. New certificates on change of partner. § 2470. Register of such firms to be kept by county clerk. § 2471. Certified copies of register, and proof of publi- cation, to be evidence. § 2466. Except as otherwise provided in the next section every partnership transacting busi- ness in this State under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the county in which its principal place of business is situated a certificate stating the names in full of all the members of such part- nership and their places of residence, and publish the same once a week, for four successive weeks, in a new.spaper publii^hed in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county. [Amendment, approved March 30, 1874; Amend- ments 1873-74, 253. In effect July 1, 1874.] § 2467. A commercial or banking partnership, established and transacting business in a place without the United States, may, without filing the certificate, or making the publication prescribed in the last section, use in this State the partner- ship name used by it there, although it be ficti- tious, or do not show the names of the persons in- terested as partners in such business. [Amend- ment approved March 30. 1874; Amendments 1873- 74. 253. In effect July 1. 1874.] § 2468. The certificate filed with the clerk, as provided in section twentv-four hundred and six- 5§ 2469, 2470 PARTNERSHIP. 51«> ty-six, must be signed by the partners, and ac- knowledged before some officer authorized to take the acknowledgment of conveyances of real prop- erty. Where the partnership is hereafter formed, the certificate must be filed, and the publication designated in that section must be made within one month after the formation of the partnership, or within one month from the time designated in the agreement of its members for the commence- ment of the partntrsliip: where the partnership has been heretofore formed, the certificate must be filed, and the publication made witliin six months after the passage of this act. Persons doing business as i^artners contrary to the provisions of this arti- cle shall not maintain any action upon or on ac- count of any contracts made or transactions had in their partnersliip name, in any court of this State, until th(\v have first filed the certificate and made the publication herein required. [Amend- ment, approved March 30. 1874; Amendments 1873-74, 2.j3. In effect July 1, 1874.] § 2469. On every change in the members of a partnership transacting business in this State un- f'er a fictitious name, or a designation which does not sh 530 § 2549. A mere coutiugeut or expectaut inter- est in anything, not founded on an actual right to the thing, nor upon any valid contract for it, is not insurable. § 2550. The measure of an insurable interest in property is the extent to Avhich the insured might be damnified by loss or injury thereof. See also next section. Measure of indemnity in marine insurance: See post, sec. 2736. § 2551. The sole object of insurance is the in- demnity of the insured, and if he has no insurable interest the contract is void. § 2552, An interest insured must exist when the insurance takes eft'ect, and when the loss oc- curs, but need not exist in the meantime. § 2553. Except in the cases specified in the next four sections, and in the cases of life, acci- dent, and health insurance, a change of interest in any part of a thing insured, unaccompanied by a corresponding change of interest in the insur- ance, suspends the insurance to an equivalent ex- tent, until the interest in the thing and the inter- est in the insurance are vested in the same per- son. Transfer by partner: See sec. 2557, infra. LiauMt'i- [)y operation of law: Sec. 2556, infra. Transfer of thing insured does not transfer pol- icy: See post, sec. 2593. Transfer of life insurance policy: See sec. 2764, post. , ] § 2554. A change of interest in a thing insured, after the occurrence of an injury which results in a loss, does not affect the right of the insured to indemnity for the loss. 531 INSURANCE. §§ 2555-2558 § 2555. A change of interest in one or more of several distinct tilings, separately insured by one policy, does not avoid the insurance as to the otliers. § 2556. A change of intei-est, by will or suc- cession, or the death of the insured, does not avoid an insurance: and his interest in the insur- ance passes to the person taking his interest in tile thing insured. § 2557. A transfer of interest by one of sev- eral partners, joint owners, or owners in com- mon, who are jointly insured, to the others, does not avoid an insurance, even though it has been agreed that the insurance shall cease upon an alienation of the thing insured. Insurance by partner of cotenant: See post, sec. 2590. § 2558. Every stipulation in a policy of insur- ance for the payment of loss, whether the person Insured has or has not any interest in the prop- erty insured, or that the policy shall be received as proof of such interest, and every policy exe- cuted by way of gaming or wagerins', is void. [New spption. anproved March 30. 1*^74: Amend- ments 1873-4. 255. In effect July 1. 1874.] §§ 2561-2563 INSURANCE. 532 ARTICLE V. CONCEALMENT AND REPRESENTATIONS. § 2561. Concealment, what. § 2562. Effect of concealment. § 2563. What must be disclosed. § 2564. Matters which need not be communicated without inquiry. § 2565. Test of materiality. § 25G6. Matters which each is bound to know. § 2567. Waiver of communication. § 2568. Interest of insured. § 2569. Fraudulent warranty. § 2570. Matters of opinion. § 2571. Representation, what. § 2572. When made. § 2573. How interpreted. § 2574. Representations as to future. § 2575. How may affect policy. § 2576. When may be withdrawn. § 2577. Time intended by representation. § 2578. Representing information. § 2579. Falsity. § 2580. Effect of falsity. § 2581. Materiality. § 2582. Application of provisions of this article. § 2583. Right to rescind. § 2561. A neglect to communicate that which a party l^nows, and ought to communicate, is called a concealment. Concealment.— "Party" refers to either party to the contract: See sec. 25G3, infra. Concealment in marine insurance: See post, sees. 2GG9 et seq. § 2562. A concealment, whether intentional or unintentional, entitles the injured party to rescind a contract of insurance. § 2563. Each party to a contract of insurance must communicate to the other, in good faith, all facts within his knowledge which are or wliich he believes to be material to the contract, and which 533 INSURANCE. §§ 2564-2567 tlie other has not the means of ascertaining, and as to which he makes no warranty. § 2564. Neither party to a contract of insur- ance is bound to communicate information of the matters following, except in answer to the in- quiries of the other: 1. Those which the other knows; 2. Those which, in the exercise of ordinary care, the other ought to know, and of which the former has no reason to suppose him ignorant; 3. Those of which the other waives commun- ication; 4. Those which prove or tend to prove the ex- istence of a risk excluded by a warranty, and which are not otherwise material; and, 5. Those which relate to a risk excepted from the policy, and which are not otherwise material. Waiver of communication: See infra, sec. 2507. Facts covered by warranty: See infra, sec. 2569. § 2565. Materiality is to be determined not by the event, but solely by the probable and reason- able influence of the facts upon the party to whom the communication is due, in forming his estimate of the disadvantages of the proposed con- tract, or in making his inquiries. Materiality of representation: See infra, sec. 2581. § 2566. Each party to a contract of insurance is bound to know all the general causes which are open to his inquiry, equally vrith that of the oth- er, and which may affect either the political or material perils contemplated; and all general us- ages of trade. § 2567. The right to information of material facts may be waived, either by the terms of insur- §§ 2568-2575 INSURANCE. 534 auce or by neglect to make inquiries as to such facts, Avliere tliey are distinctly implied in otlier facts of which information is communicated. § 2568. Information of the nature or amount of the interest of one insured need not be com- municate unless in answer to an inquiry, except as prescribed by section 2587. § 2569. An intentional and fraudulent omis- sion, on the part of one insured, to communicate information of matters proving or tending to prove the falsity of a warranty, entitles the in- surer to rescind. § 2570. Neither party to a contract of insur- ance is bound to communicate, even upon in- quiry, information of his own judgment upon the matters in question. , § 2571. A representation may be oral or writ- ten. Representations in marine insurance: Sec. 2676, post. § 2572. A representation may be made at the same time with issuing the policy, or before it. Warranties: See sees. 2603, 2604, post. § 2573. The language of a representation is to be interpreted by the same rules as the language of contracts in general. Interpretation of contracts: See ante, sec. 1635. § 2574. A representation as to the future is to be deemed a promise, unless it appears that it was merely a statement of belief or expectation. § 2575. A representation cannot be allowed to qualify an express provision in a contract of in- surance; but it may qualify an implied warranty. 335 INSURANCE. §§ 2576-2583 § 2576. A representation may be altered or withdrawn before tlie insurance is effected, but not afterwards. § 2577. The completion of the contract of in- surance is the time to which a representation must be presumed to refer. § 2578. When a person insured has no per- sonal knowledge of a fact, he may nevertheless repeat information which he has upon the sub- ject, and which he believes to be true, with the explanation that he does so on the information of others, or he may submit the information, in its whole extent, to the insurer; and in neither case is he responsible for its truth, unless it pro- ceeds from an agent of the insured whose duty it is to give the intelligence. § 2579. A representation is to be deemed false when the facts fail to correspond with its asser- tions or stipulations. § 2580. If a representation is false in a ma- terial point whether afhrmative or promissory, the injured party is entitled to rescind the con- tract from the time when the representation be- comes false. § 2581. The materiality of a representation is determined by the same rule as the materiality of a concealment. Materiality of representation, how determined: See ante, sec. 25G5. § 2582. The provisions of this article apply as well to a modification of a contract of insurance as to its original formation. § 2583. Whenever a right to rescind a contract of insurance is given to the insurer by any pro- §§ 2586-2588 INSURANCE. 536 vision of this chapter, such right may be exer- cised at any time previous to the commencement of an action on the contract. [New section, ap- proved March 30. 1874; Amendments 1878-4, p. 255. In effect July 1, 1874.] See sec. 2G09, post. ARTICLE VI. THE POLICY. § 25S6. Policy, what. § 2587. \vhat must be specified in a policy. § 2o88. Whose interest is covered. § 25S9. Insurance by agent or trustee. § 2590. Insurance by part owner. § 25^1, General terms. § 2592. Successive owners. § 2593. Transfer of the thing insured. § 2594. Open and valued policies. § 2595. Open policy, what. § 2596. Valued policy. § 2597. Running policy, what. § 2598. Effect of receipt. § 2599. Agreement not to transfer. § 2586. The written instrument, in which a contract of insurance is set forth, is called a pol- icy of insurance. § 2587. A policy of insurance must specify: 1. The parties between whom the contract is made; 2. The rate of premium; 3. The property or life insured; 4. The interest of the insured in property in- sured, if he is not the absolute owner thereof; 5. The rislvs insured against; and, G. The period during which the insurance is to continue. Compare with sec. 2568. § 2588. When the name of the person intend- 537 INSURANCE. §§ 2589-25S4 ed to be insured is specified in a policy, it can be applied only to his own proper interest. Stating interest of insured: See ante, sec. 2568. Insurable interest generally: See ante, sec. 2.540. § 2589. When an insurance is made by an agent or trustee, the fact that liis principal or beneficiary is the person really insured may be indicated by describing him as agent or trustee, or by other general words in the policy. § 2590. To render an insurance, effected by one partner or part owner, applicable to the in- terest of his copartners, or of other part owners, it is necessary that the terms of the policy should be such as are applicable to the joint or common interest. Transfer of policy from one partner to another: See ante, sec. 2557. § 2591. When the description of the insured in a policy is so general that it may comprehend any person or any class of persons, he only can claim the benefit of the policy who can show that it was intended to include him. § 2598. A policy may be so framed that it will enure to the benefit of whomsoever, during the continuance of the risk, may become the owner of the interest insured. § 2593. The mere transfer of a thing insured does not transfer the policy, but suspends it until the same person becomes the owner of both the policy and the thing insured. Transfer of interest: See generally, on aliena- tion of interest, sees. 25.53, et seq. § 2594. A policy is either open or valued. §§ 2595-2599 INSURANCE. 538 § 2595. An open policy is one in which the value of the thing- insured is not agreed upon, but is left to be ascertained in case of loss. § 2596. A valued policy is one which express- es on its face an agreement that the thing insured shall be valued at a specified sum. Valuation in marine insurance: See post, sec. 273G. § 2597. A running policy is one which con- templates successive insurances, and which pro- vides that the ob.ioct of the policy may be from time to time defined, especially as to the sub- jects of insurance, by additional statements or indorsements. § 2598. An aclvuowledgment in a policy of the receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwithstanding any stipulation therein that it shall not be binding until the premium is actu- ally paid. Premiums in general: See sec. 2616 et seq., post. § 2599. An agreement made before a loss, not to transfer the claim of a person insured against the insurer, after the loss has happened, is void. 539 INSURANCE. §§ 2G03-2008 ARTICLE VII. WARRANTIES. § 2603. Warranty, express or implied. S 2t;04. Form. § 2e05. Warranty, in what contained. § 2t)06. Past, present, and future warranties. § 26u7. Warranty as to past or present. § 260S. Warranty as to the future. § 2609. Performance excused. § 2610. What acts avoid the policy. § 2611. Policy may provide for avoidance. § 2612. Breach without fraud. § 2603. A warranty is either express or im- plied. See sec. 2G05, infra. Implied warranties in marine insurance: See sees. 2681 et seq., post. § 2604. No particular form of words is neces- sary to create a -svarranty. § 2605. Every express warranty, made at or before the execution of a policy, must be con- tained in the policy itself, or in another instru- ment signed by the insured, and referred to in the policy, as mali:ing- a part of it. [Amendment, ap- proved March 30, 1874; Amendments 1873-4, p. 255. In effect July 1, 1874.] See sees. 2571, ante, et seq. § 2606. A warranty may relate to the past, the present, the future, or to any or all of these. Promissory warranties: See sec. 2608. § 2607. A statement in a policy, of a matter relating to the person or thing insured, or to the risk, as a fact, is an express warranty thereof. § 2608. A statement in a policy, which Imports §§ 2609-2612 INSURANCE. 540 that it is intonded to do or not to do a tliiug which materially affects the risk, is a warranty that such act or omission shall take place. § 2609. When before the time arrives for the performance of a warranty relating to the future, a loss insured against happens, or performance becomes unlawful at the place of the contract, or impossible, the omission to fulfill the warranty does not avoid the policy. [Amendment, ap- proved March 30, 1874; Amendments 1873-4, p. 255. In effect July 1, 1874.] Rescinding contract of insurance: See sec. 2583, supra, as to the time when the right to rescind may be exercised. § 2610. The violation of a material warranty, or other material provision of a policy, on the part of either party thereto, entitles the other to rescind. This section distinguishes between material and immaterial warranties. Heretofore all war- ranties were deemed material. The insurer can, however, protect himself, under section 2G11, in- fra, by declaring in the policy that violation of an immaterial warranty will avoid the contract. § 2611. A policy may declare that a violation of specific provisions thereof shall avoid it, other- wise the breach of an immaterial provision does not avoid the policy. § 2612. A breach of warranty, without fraud, merely exonerates an insurer from the time that it occurs, or where it is broken in its inception pre- vents the policy from attaching to the risk. Breach of warranty without fraud.— If the war- ranty was broken at its inception without any fraud on the part of the insured, he is entitled to a return of the premium: See sec. 2619, post. 541 INSURANCE. §§ 2616-2618 ARTICLE VIII. PREMIUM. § 2616. When premium is earned. § 2617. Return of premium. § 2618. Wneu none allowed. § 2619. Return for fraud. '_ § 2620. Over-insurance by several Insurers. § 2621. Contribution. § 2622. Proportionate contribution. § 2616. An insurer is entitled to payment of the premium as soon as tlie thing insured is ex- posed to the peril insured against. Receipt in policy, how far conclusive of pay- ment: See sec. 2598, ante. § 2617. A person insured is entitled to a return of premium, as follows: 1. To the whole premium if no part of his in- terest in the thing insured be exposed to any of the perils insured against; 2. Where the insurance is made for a definite period of time, and the insured surrenders his pol- icy, to such proportion of the premium as corres- ponds with the unexpired time, after deducting from the whole premium any claim for loss or damage under the policy which has previously ac- crued. [Amendment, approved March 30, 1874; Amendments 1873-4, p. 256. In effect .July 1, 1874.] Return for fraud: See sec. 2619, infra. § 2618. If a peril insured against has existed, and the insurer has been liable for any period, however short, the insured is not entitled to re- turn of premiums, so far as that particular risk is concerned. [Amendment, approved March 30, 1874; Amendments 1873-4, p. 256. In effect Julv 1, 1874.] Civ. Code. -46. §§ 2319-2622 INSURANCE. 542 § 2619. A person insured is entitled to a re- turn of the premium wlien the contract is void- able, on account of the fraud or misrepresenta- tion of the insurer, or on account of facts, of the existence of which the insured was ignorant with- out his fault; or when, by any default of the in- sured other than actual fraud, the insurer never incurred any liability under the policy. § 2620. In case of an over-insurance by sever- al insurers, the insured is entitled to a ratable re- turn of the premium, proportioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the thing at risk. Double insurance defined: See post, sec. 2641. § 2621. AVhen an over-insurance is effected by simultaneous policies, the insurers contribute to the premium to be returned in proportion to the amount insured by their respective policies. Contribution in cases of double insurance: See post, sec. 2642. § 2622. When an over-insurance is effected by successive policies, those only contribute to a re- turn of the premium who are exonerated by prior insurances from the liability assumed by them, and in proportion as the sum for which the pre- mium was paid exceeds the amount for which, on account of prior insurance, they could be made liable. 543 INSURANCE. §§ 2626-2628 ARTICLE IX. LOSS. § 2626. Perils, remote and proximate. § 2627. Loss incurred in rescue from peril. § 2J28. Excepted perils. § 2629. Negligence and fraud. § 2626. Au insurer is liable for a loss of which a peril insured against was the proximate cause; although a peril not contemplated by the contract may have been a remote cause of the loss; but he is not liable for a loss of which the peril insured against was only a remote cause. Negligence of insured: See sec. 2629, infra. Perils of the sea, what included in this expres- sion: See an enumeration of what are the sources of "perils at sea," in the case of common carriers, sec. 2199, ante. § 2627. An insurer is liable where the thing insured is rescued from a peril insured against, that would otherwise have caused a loss, if in the course of such rescue the thing is exposed to a peril not insured against, which permanently deprives the insured of its possession, in whole or in part; or where a loss is caused by efforts to rescue the thing insured from a peril insured against. § 2628. Where a peril is specially excepted in a contract of insurance, a loss, which would not have occurred but for such peril, is thereby except- ed; although the immediate cause of the loss was a peril which was not excepted. §§ 2629-2636 INSURANCE. 544 § 2629. An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by the negligence of the insured, or of his agents or others. [Amendment, ap- proved March 30, 1874; Amendments 1873-4, p. 25G. In effect July 1, 1874.] ARTICLE X. NOTICE OF LOSS. § 2633. Notice of loss. § 2634. Preliminary proofs. § 2635. Waivers of defects in notice, &c. § 2636. Waiver of delay. § 2637. Certificate, when dispensed with. § 2633. In case of loss upon an insurance against tire, an insurer is exonerated, if notice thereof be not given to him by some person in- sured, or entitled to the benefit of the insurance, Avithout unnecessary delay. [Amendment ap- proved April 30, 1874; Amendments 1873-4, p. 256. In effect July 1, 1874.] § 2634. When preliminary proof of loss is re- quired by a policy, the insured is not bound to give such proof as would be necessary in a court of justice; but it is sufficient for him to give the best evidence which he has in his power at the time. § 2635. All defects in a notice of loss, or in preliminary proof thereof which the insured might remedy, and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived. § 2636. Delay in the presentation to an insurer of notice or proof of loss is waived, if caused by 545 INSURANCE. §§ 2637-2642 any act of his, or if lie omits to make objection promptly and specifically upon that ground. § 2637. If a policy requires, by way of prelim- inary' proof of loss, the certificate or testimony of a person other than the insured, it is sufficient for the insured to use reasonable diligence to procure it, and in case of the refusal of such per- son to give it, then to furnish reasonable evi- dence to the insurer that such refusal was not in- duced by any just grounds of disbelief in the facts necessary to be certified. Presenting false proofs for policies: Penal Code, sec. 549. ARTICLE XI. DOUBLE INSURANCE. § 2641. Double insurance. § 2642. Contribution in case of double insurance. § 2641. A double insurance exists where the same person is insured by several insurers sepa- rately in respect to the same subject and inter- est. § 2642, In case of double insurance, the sever- al insurers are liable to pay losses thereon as fol- lows: 1. In fire insurance, each insurer must contrib- ute ratably towards the loss, without regard to the dates of the several policies; 2. In marine insurance, the liability of the sev- eral insurers for a total loss, whether actual or constructive, where the policies are not simultan- eous, is in the order of the dates of the several policies: no liability attaching to a second or oth- er subsequent policy except as to the excess of the loss over the amount of all previous policies on the same interest. If two or more policies bear §§ 2646-2649 INSURANCE. 546 date upon the same day, they are deemed to be simultaueous, and the liability of insurers on simultaneous policies is to contribute ratably with each other. The insolvency of any of the insurers does not affect the proportionate liability of the other insurers. The liability of all insurers on the same marine interest for a partial or average loss is to contribute ratably. [Amendment, ap- proved March 30, 1873-4; Amendments 1873-4, p. 257. In effect July 1, 1874.] Return of i^remium by successive insurers: See sec. 2622, ante. ARTICLE XII. REINSURANCE. § 2646. Reinsurance, what. § 2647. Disclosures required. § 2648. Reinsurance presumed to be against liability. § 2649. Original insured has no interest. § 2646. A contract of reinsurance is one by which an insurer procures a third person to insure him against loss or liability by reason of such or- iginal insurance. § 2647. Where an insurer obtains reinsurance, lie must communicate all the representations of the original insured, and also all the knowledge and information he possesses, whether previously ov subsequently acquired, which are material to the risk. § 2648. A reinsurance is presumed to be a con- tract of indemnity against liability, and not mere- ly against damage. § 2649. The original insured has no interest in M contract of reinsurance. 547 INSURANCE. §§ 2655-2659 CHAPTER II. MARINE INSURANCE. Article I. Definition of Marine Insurance, § 2655. II. Insurable Interest, §§ 2359-2665. III. Concealment, §§ 2869-2672. IV. Representations, §§ 2676-2677. V. Implied Warranties, §§ 2681-26S8. VI. The Voyage, and Deviation, §§ 2692-2697. VII. Loss, §§ 2701-2712. VIII. Abandonment, §§ 2716-2732. IX. Measure of Indemnity, §§ 2736-2746. ARTICLE I. DEFINITION OP MARINE INSURANCE. § 2655. Marine insurance, what. § 2655. Marine insurance is an insurance again.st risks connected with navigation, to which a ship, cargo, freightage, profits, or other insur- able interest in movable property, may be ex- posed during a certain voyage or a fixed period of time. Insurable interest: See ante. sees. 2546-2557. ARTICLE II. INSURABLE INTEREST. § 23-59. Insurable interest in a ship. § 2630. Interest reduced by bottomry. § 2661. Freightage, what. § 2662. Expected freightage. § 2F63. Interest in expected freiehtage, what. § 2664. Insurable interest In profits. § 2665. Insurable interest of charterer. § 2659. The owner of a ship has in all cases an insurable interest in it, even when it has been §§ 2660-2365 INSURANCE. g48 chartered by one who covenants to pay him its value in case of loss. Bottomry defined: See post, sec. 3017. § 2660. The insurable interest of the owner of a ship hypothecated by bottomry is only the ex- cess of its value over the amount secured by bot- tomry. Insurable interest generally: See sees. 2546 et seq. § 2661. Freightage, in the sense of a policy of marine insurance, signifies all the benefit derived by the owner either from the chartering of the ship or its employment for the carriage of his own goods or those of others. See sec. 2G55. § 2662. The owner of a ship has an insurable interest in expected freightage which he would have certainly earned but for the interven- tion of a peril insured against. § 2663. The interest mentioned in the last sec- tion exists, in the case of a charter party, when the ship has broken ground on the chartered voy- age, and if a price is to be paid for the carriage of goods when they are actually on board, or there is some contract for putting them on board, and both ship and goods are ready for the speci- fied voyage. § 2664. One who has an interest in the thing from which profits are expected to proceed, has an insurable interest in the profits. § 2665. The charterer of a ship has an insur- able interest in it, to the extent that he is liable to be damnified bv its loss. 549 INSURANCE. §§ 2669-2672 ARTICLE III. CONCEALMENT. § 2669. Information must be communicated. § 2670. Material information. § 2671. Presumption of knowledge of loss. § 2672. Concealments which only affect the risk in ques- tion. § 2669. In marine insurance each party is bound to communicate, in addition to what is re- quired by section 2563, all the information which he possesses, material to the risli, except such as is mentioned in section 2564, and to state the ex- act and whole truth in relation to all matters that he represents, or upon inquiry assumes to dis- close. Concealment in insurance generally: See sees. 2561 et seq., and sec. 2672. § 2670. In marine insurance, information of the belief or expectation of a third person, in ref- erence to a material fact, is material. Representation of expectation avoids contract, "When: See sec. 2677. § 2671. A person insured by a contract of ma- rine insurance is presumed to have had knowl- edge, at the time of insuring, of a prior loss, if the information might possibly have reached him in the usual mode of transmission, and at the usual rate of communication. § 2672. A concealment in a marine insurance, in respect to any of the following matters, does not vitiate the entire contract, but merely exon- erates the insurer from a loss resulting from the risk concealed: 1. The national character of the insured: §§ 2670, 2677 INSURANCE. 550 2. The liability of the thing insured to capture and detention; 3. The liability to seizure from breach of for- eign laws of trade; 4. The want of necessary documents; and, 5. The use of false and simulated papers. ARTICLE IV. REPRESENTATIONS. § 2376, Effect of intentional falsity. § 2677. Representation of expectation. § 2676. If a representation, by a person in- sured by a contract of marine insurance, is inten- tionally false in any respect, whether material or ii material, the insurer may rescind the entire contract. Representations generally: See ante, sees. 2571 et seq. § 2677. The eventual falsity of a representation as to expectation does not, in the absence of fraud, avoid a contract of insurance. Expectation of a third person, material: Sec. 2671. 551 INSURANCE. §| 2681-2683 ARTICLE V. IMPLIED WARRANTIES. § 2681. Warranty of seaworthiness. § 2682. Seaworthiness, what. § 26S3. At what time seaworthiness must exist. § 2684. What things are required to constitute seaworthi- ness. § 26S5. Different degrees of seaworthiness at different stages of the voyage. § 2686. Unseaworthiness during the voyage. § 2687. Seaworthiness for purposes of insurance on cargo. § 2688. Neutral papers. § 2681. In every marine insurance upon a ship or freiglit, or freightage, or upon anything which is the subject of marine insurance, a war- ranty is implied that the ship is seaworthy. [Amendment, approved March 30, 1874; Amend- ments 1873-4, p. 2.57. In effect July 1, 1874.] The original section confined the implied war- ranty of seaworthiness to insurances on the property of the ship-owner, for the reason, as the commissioners state, that the former law imply- ing such a warranty in every case — the law as re- enacted by the amendment of 1874 — "is not found- ed upon reason. Insurers know the quality of vessels much better than shippers." Seaworthiness defined: See next section. § 2682. A ship is seaworthy, when reasonably fit to perform the services, and to encounter the ordinary perils of the voyage, contemplated by the parties to the policy. Seaworthiness defined: Consult sees. 2683-2685. § 2683. An implied wari'anty of seaworthi- ness is complied with if the ship be seaworthy at the time of the commencement of the risk, except in the following cases: §§ 2684-2687 INSURANCE, 552 1. When the insurance is made for a specified length of time, the implied warranty is not com- plied with unless the ship be seaworthy at the commencement of every voyage she may under- take during that time; and, 2. When the insurance is upon the cargo, which, by the terms of the policy, or the descrip- tion of the voyage, or the established custom of trade, is to be transshipped at an intermediate port, the implied warranty is not complied with, unless each vessel upon which the cargo is ship- ped or transshipped be seaworthy at the com- mencement of its particular voyage. [Amend- ment, approved March 30, 187-1; Amendments 1873-4, p. 257. In effect July 1, 1874.] § 2684. A warranty of seaworthiness extends not only to the condition of the structure of the ship itself, but requires that it be properly laden, and provided with a competent master, a sufii- cient number of competent officers and seamen, and the requisite appurtenances and equipments, such as ballast, cables, and anchors, cordage and sails, food, water, fuel, and lights, and other nec- essary or proper stores and implements for the voyage. § 2685. Where different portions of the voyage contemplated by a policy differ in respect to the things requisite to make the ship seaworthy there- for, a warranty of seaworthiness is complied with if, at the commencement of each portion, the ship is seaworthy with reference to that portion. § 2686. W^hen a ship becomes unseaworthy during the voyage to which an insurance relates, an unreasonable delay in repairing the defect ex- onerates the insurer from liability from any loss arising therefrom, § 2687. A ship which is seaworthy for the pur- 553 INSURANCE. §§ 2688-2696 pose of au iusurauce upon the ship may neverthe- less, by reason of being unfitted to receive the cargo, be unseaworthy for the purpose of insur- ance upon the cargo. § 2688. Where the nationality or neutrality of a ship or cargo is expressly warranted, it is im- plied that the ship will carry the requisite docu- ments to show such nationality or neutrality, and that it will not carry any documents which cast reasonable suspicion thereon. ARTICLE VI. THE VOYAGE AND DEVIATION. § 2692. Voyage insured, how determined. § 2693. Course of sailing, how determined. § 2694. Deviation, what. § 2695. When proper. § 2696. When improper. § 2697. Deviation exonerates the insurer. § 2692. When the voyage contemplated by a policy is described by the places of beginning and ending, the voyage insured is one which conforms to the course of sailing fixed by mercantile us- age between those places. § 2693. If the course of sailing is not fixed by mercantile usage, the voyage insured by a policy is the way between the places specified which, to a master of ordinary skill and discretion, would seem the most natural, direct, and advantageous. § 2694. Deviation is a departure from the course of the voyage insured, mentioned in the last two sections, or an unreasonable delay in pur- suing the voyage, or the commencement of an en- tirely different voyage. § 2695. A deviation is proper: Civ. Code.— 47. §§ 2696-2701 INSURANCE. 554 1. A\'lieu caused by circumstances over which neither the master nor the owner of the ship has any control; 2. When necessary to comply with a warranty, or to avoid a peril, whether insured against or not; y. When made in good faith, and upon reason- able grounds of belief in its necessity to avoid a 13eril; or, 4. When made in good faith, for the purpose of saving human life, or relieving another vessel in distress. § 2696. Every deviation not specified in the last section is improper. § 2697. An insurer is not liable for any loss happening to a thing insured subsequently to an improper deviation. AKTICLE VII. LOSS. § 2701. Total and partial loss. § 2702. Partial loss. § 2703. Actual and constructive total loss. § 2704. Actual total loss, what. § 2705. Constructive total loss. § 2706. Presumed actual loss. § 2707. Insurance on cargo, &c., when voyage is broken up. § 2708. Cost of reshipment, &c. § 2709. When insured is entitled to payment. § 2710. Abandonment of goods on insurance of profits. § 2711. Average loss. § 2712. Insurance against total loss. § 2701. A loss may be either total or partial. Total loss either actual or constructive: See sec. 2703. Actual total loss defined: See 2704. Constructive total loss defined: See sec. 2705. 555 INSURANCE. §§ 2702-2707 § 2702. Even lu.ss which is uot total is par- tial. Liability ou partial loss: Sec. 2737. One-third new for old: Sec. 2740. § 2703. A total loss may be either actual or coustriictive. Actual total loss defined: See. 2704. Actual loss, when presumed: Sec. 2706. Constructive loss defined: Sec. 2705. § 2704. An actual total loss is caused by: 1. A total destruction of the thing insured; 2. The loss of the thing by sinking, or by being broken up; 3. Any damage to the thing which renders it valueless to the owner for the purposes for which he held it; or, 4. Any other event which entirely deprives the owner of the possession, at the port of destination, of the thing insured. § 2705. A constructive total loss is one which gives to a person insured a right to abandon, un- der section 2717. Abandonment for constructive total loss: Sees. 2716 et seq. § 2706. An actual loss may be presumed from the continued absence of a ship without being heard of; and the length of time which is suffi- cient to raise this presumption depends on the cir- cumstances of the case. § 2707. When a ship is prevented, at an inter- mediate port, from completing the voyage, by the perils insured against, the master must make ev- ery exertion to proctire, in the same or a contig- uous port, another ship, for the purpose of con- veying the cargo to its destination; and the liabil- §§ 2708-2712 INSURANCE. 553 ity of a marine insurer tliereon continues after they are thus reshipped. [Amendment, approved March 30, 1874; Amendments 1873-4, 258. In effect July 1, 1874.] Constructive total loss of cargo: See sees. 2717, post, subd. 4. § 2708. In addition to the liability mentioned in the last section, a marine insurer is bound for damages, expenses of discharging, storage, reship- ment, extra freightage, and all other expenses in- curred in saving cargo reshipped pursuant to the last section, up to the amount insured. § 2709. Upon an actual total loss, a person in- sured is entitled to payment without notice of abandonment. § 2710. Repealed. [March 30, 1874; Amend- ments 1874, 258. In effect July 1, 1874.] § 2711. Where it has been agreed that an in- surance upon a particular thing or class of things shall be free from particular average, a marine insurer is not liable for any particular average loss not depriving the insured of the possession, at the port of destination, of the whole of such thing, or class of things, even though it become entirely worthless, but he is liable for his pro- portion of all general average loss assessed upon the thing insured. [Amendment, approved March 30, 1874; Amendments 1873-4, p. 258. In effect July 1, 1874.] § 2712. An insurance confined in terms to an actual total loss does not cover a constructive total loss, but covers any loss which neces- sarily results in depriving the insured of the pos- session, at the port of destination, of the entire thing insured. [Amendment, approved March 30, 557 INSURANCE. §§ 2716, 2717 1874; Amendments 1873-4, p. 259. In effect Ju]v 1, 1874.] ARTICLE VIII. ABANDONMENT. § 2716. Abandonment, what. § 2717. When insured may abandon. § 2718. Must be unqualified. § 2719. When may be made. § 2720. Abandonment may be defeated. § 2721. How made. § 2722. Requisites of notice. § 272.3. No other cause can be relied on. g 2724. Effect. § 2725. Waiver of formal abandonment. § 2723. Agents of the insured become agents of the in- surer. § 2727. Acceptance not necessary. § 2728. Acceptance conclusive. § 2729. Accepted abandonment, irrevocable. § 2730. Freightage, how affected by abandonment of ship. § 2731. Refusal to accept. § 2732. Omission to abandon. § 2716. Abandonment is the act by which, af- ter a constructive total loss, a person insured by contract of marine insurance declares to the in- surer that he relinquishes to him his interest in the thins: insured. Abandonment, requisites of: See sees. 2718-2723. Constructive total loss defined: Sec. 2705. § 2717. A person insured by a contract of ma- rine insurance may abandon the thine: insured, or any particular portion thereof separately valued by the policy, or otherwise separately insured, and recover for a total loss thereof, when the cause of the loss is a peril insured a.aainst: 1. If more than half thereof in value is actu- ally lost, or would have to be expended to recover it from the peril: §§ 2718-2722 INSURANCE. 558 2. If it is injured to such au xteut as to reduce its value more than one-half; 3. If the thing- insured, being a ship, the con- templated voyage cannot be lawfully performed without incurring an expense to the insured of more than half the value of the thing abandoned, or without incurring a risk which a prudent man would not take under the circumstances; or, 4. If the thing insured, being cargo or freight- age, the voyage cannot be performed nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cargo, without incurring the like expense or risk. But freightage cannot in any case be aban- doned, unless the ship is also abandoned. Freightage, how affected by abandonment: See sec. 2730. § 2718. An abandonment must be neither par- tial nor conditional. § 2719. An abandonment must be made within a reasonable time after the information of the loss, and after the commencement of the voyage, and before the party abandoning has information of its completion. Omitting to abandon, insured may still recover for his actual loss: Sec. 2732, post. § 2720. Where the information upon which an abandonment has been made proves incorrect, or the thing insured was so far restored when the abandonment was made that there was then in fact no total loss, the abandonment becomes inef- fectual. § 2721. Abandonment is made by giving notice thereof to the insurer, which may be done orally, or in writing. § 2722. A notice of abandonment must be ex- I ^59 INSURANCE. §§ 2723-2729 plicit, and must specify the particular cause of the abaudoument, but need state only enough to show that there is probable cause therefor, and need not be accompanied with proof of interest or of loss. See sec. 2723. § 2723. An abandonment can be sustained only upon the cause specified in the notice thereof. § 2724. An abandonment is equivalent to a transfer, by the insured, of his interest, to the in- surer, with all the chances of recovery and in- demnitj'. Subrogation of insurer: See sec. 2745. § 2725. If a marine insurer pays for a loss as if it were an actual total loss, he is entitled to whatever may remain of the thing insured, or its proceeds or salvage, as if there had been a formal abandonment. § 2726. Upon an abandonment, acts done in good faith by those who were agents of the in- sured in respect to the thing insured, subsequent to the loss, are at the risk of the insurer, and for his benefit. § 2727. An acceptance of an abandonment is not necessary to the rights of the insured, and is iiot to be presumed from the mere silence of the insurer upon his receiving notice of abandon- ment. Compare with sec. 2731, infra. § 2728. The acceptance of an abandonment, whether express or implied, is conclusive upon the parties, and admits the loss and the sufficiency of the abandonment. >^ 2729. An abandonment once made and ac- §§ 2730-2736 INSURANCE. 560 cepted is irrevocable, unless the ground upon which it was made proves to be unfounded. § 2730. On an accepted abandonment of a ship, freightage earned previous to the loss be- longs in the insurer thereof; but freightage subse- quently earned belongs to the insurer of the ship. Abandonment of freightage: See sec. 2017, subd. 4. § 2731. If an insurer refuses to accept a valid abandonment, he is liable as upon an actual total loss, deducting from the amount any proceeds of the thing insured which may have come to the hands of the insured. Acceptance not presumed from silence: Sec. 2727. § 2732. If a person insured omits to aban- don, he may nevertheless recover his actual loss. ARTICLE IX. MEASURE OP INDEMNITY. § 2736. Valuation, when conclusive. § 2737. Partial loss. § 2738. Profits. § 2739. Valuation apportioned. § 2740. Valuation applied to profits. § 2741. Estimating loss under an open policy. § 2742. Arrival of thing damaged. § 2743. Labor and expenses. § 2744. General average. § 2745. Contribution, § 2746. One third new for old. § 2736. A valuation in a policy of marine in- surance is conclusive between the parties thereto in the adjustment of either a partial or total loss, 561 INSURANCE. §§ 2737-2740 if the insured has some interest at risk, and there is no fraud on his part; except that when a thing has been hypothecated by bottomry or responden- tia, before its insurance, and without the l^nowl- edge of the person actually procuring the insur- ance, he may show the real value. But a valua- tion fraudulent in fact entitles the insurer to re- scind the contract. Valued policies: See ante, sec. 2596. Valued policy on freightage or cargo: See sec. 2739, infra. Valuation of profits: See sec. 2740. Valued policy of fire insurance: See sec. 2756, post. § 2737. A marine insurer is liable upon a par- tial loss, only for such proportion of the amount insured by him as the loss bears to the value of the whole interest of the insured in the property insured. Compare with section 2756, stating the measure of indemnity in case of fire insurance. § 2738. Where profits are separately insured in a contract of marine insurance, the insured is entitled to recover in case of loss, a proportion of such profits equivalent to the proportion which the value of the property lost bears to the value of the whole. See infra, sec. 2740. § 2739. In case of a valued policy of marine insurance on freightage or cargo, if a part only of the subject is exposed to risk, the valuation ap- plies only in proportion to such part. § 2740. When profits are valued and insured by a contract of marine insurance, a loss of them is conclusively presumed from a loss of the prop- §§ 2741-2743 INSURANCE. 562 erty out of wliicli tliey were expected to arise, aud the valiiatiou fixes their amouut. Harmonizes with sec. 2738. § 2741. In estimating a loss under an open policy of marine insurance, the following rules are to be observed: 1. The value of a ship is its value at the begin- ning of the risk, including all articles or charges which add to its permanent value, or which are necessary to prepare it for the voyage insured; 2. The value of cargo is its actual cost to the insured, when laden on board, or where that cost cannot be ascertained, its market value at the time and place of lading, adding the charges in- curred in purchasing and placing it on board, but without reference to any losses incurred in rais- ing money for its purchase, or to any drawback on its exportation, or to the fluctuations of the market at the port of destination, or to expenses incurred on the way or on arrival; 3. The value of freightage is the gross freight- age, exclusive of primage, without reference to the cost of earning it: and, 4. The cost of insurance is in each case to be added to the value thus estimated. Partial loss of ship: Sec. 2746. § 2742. If cargo insured against partial loss ar- rives at the port of destination in a damaged con- dition, the loss of the insured is deemed to be the same proportion of the value which the market price at that port, of the thing so damaged, bears to the market price it woiUd have brought if sound. § 2743. A marine insurer is liable for all the expense attendant upon a loss which forces the ship into port to be repaired; and where it is 563 INSURANCE. §§ 2744-2746 agreed that the insured may hibor for the recov- ery of the property, the insurer is liable for the expense incurred thereby, such expense, in either case, being in addition to a total loss, if that after- wards occurs. § 2744. A marine insurer is liable for a loss falling upon the insured, through a contribution in respect to the thing insured, required to be made by him towards a general average loss called for by a peril insured against. General average generally: See sees. 2152 et seq. § 2745. Where a person insured by a contract of marine insurance has a demand against others for contribution, he may claim the whole loss from the insurer, subrogating him to his own right to contribution. But no such claim can be made up- on the insurer after the separation of the interests liable to contribution, nor when the insured, hav- ing the right and opporttinity to enforce contribu- tion from others, has neglected or waived the ex- ercise of that right. [Amendment approved March .30. 1874; Amendments 187.3-4, 2.59. In effect July 1, 1874.] Subrogation of insurer: See sec. 2724. § 2746. In the case of a partial loss of a ship or its equipments, the old materials are to be ap- plied towards payment for the new, and whether the ship is new or old, a marine instirer is liable for only two-thirds of the remaining cost of the repairs, except that he must pay for anchors and cannon in full, and for sheathing metal at a depre- ciation of only two and one-half per cent for each month that it has been fastened to the ship. Sale of wrecked or damaged vessels: See Polit. Code, sec. 2507. §§ 2752-2755 INSURANCE. 564 CHAPTER III. FIRE INSURANCE. § 2752. False representations. (Repealed.) § 2753. Alteration increasing risk. § 2754. Alteration not increasing risk. § 2755. Acts of the insured. § 2756. Measure of indemnity. § 2752. Repealed. [March 30, 1874; Amend- ments 1873-4, 259. In effect July 1, 1874.] § 2753. An alteration in the use or condition of a thing- insured from that to which it is limited by the policy, made without the consent of the in- surer, by means within the control of the insured, and increasing the risk, entitles an insurer to re- scind a contract of fire insurance. § 2754. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the rislv, does not affect a contract of fire insurance. Alteration not increasing risk.— The phraseology of this section is somewhat ambiguous. "Lim- ited" cannot mean "stipulated," in the sense that if the policy stipulates for the use of the premises in a particular way and against any other use, a violation of this stipulation will not affect the con- tract unless the violation increases the risk. The extent of the alteration in such case is not mate- rial, as it is shown in the note to the preceding section. Probably "limited" is to be taken as a term of description merely. § 2755. A contract of fire insurance is not af- fected by any act of the insured subsequent to the execution of the policy, which does not violate its provisions, even though it increases the risk and is the cause of the loss. 565 INSURANCE. §§ 2756-2763 § 2756. If there is no valuation in the policy, the measure of indemnity in an insurance against fire is the expense, at the time that the loss is pay- able, of replacing the thing lost or injured in the condition in which it was at the time of the in- jury; but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine insurance. Valued policy in marine insurance: See ante, sec. 2736. CHAPTER IV. LIFE AND HEALTH INSURANCE. § 2762. Insurance upon life, when payable. § 2763. Insurable interest. § 2764. Assignee, &c., of life policy need have no Interest. § 2765. Notice of transfer. § 2766. Measure of indemnity. § 2762. An insurance upon life may be made payable on the death of the person, or on his sur- viving a specified period, or periodically so long as he shall live, or otherwise contingently on the continuance or determination of life. Mutual life, health, and accident insurance cor- porations: See ante, sec. 437; post. Appendix, p. 770. Fraternal societies not insurance companies: See ante, sec. 451. § 2763. Every person has an insurable interest in the life and health: 1. Of himself; 2. Of any person on whom he depends wholly or in part for education or support; 3. Of any person under a legal obligation to him for the payment of money, or respecting prop- erty or services, of Avhich death or illness might delay or prevent the performance: and, 4. Of any person upon whose life any estate or interest vested in him depends. Civ. Code.— 48. §§ 27Ji-2772 INDEMNITY. 566 Insurable interest generally: See sees. 2546 et seq. § 2764. A policy of insurance upon life or health may pass by transfer, will, or succession to any person, whether he has an insurable interest or not, and such person may recover upon it what- ever the insured might have recovered. Compare with section 2553, ante. § 2765. Notice to an insurer of a transfer or bequest thereof is not necessary to preserve the validity of a policy of insurance upon life or health, unless thereby expressly required. § 2766. Unless the interest of a person insured is susceptible of exact pecuniary measurement, the measure of indemnity under a policy of insur- ance upon life or health is the sum fixed in the pol- icy. Act relating to life, health, accident and annuity or endowment insurance: See post. Appendix, p. 770. TITLE XII. INDEMNITY. § 2772. Indemnity, what. § 2773. Indemnity for a future wrongful act void. § 2774. Indemnity for a past wrongful act valid. § 277.5. Indemnity extends to acts of agents. § 2776. Indemnity to several. § 2777. Person indemnifying liable jointly or severally with persons indemnified. § 2778. Rules for interpreting agreement of indemnity. § 2779. When person indemnifying is a surety. § 2780. Bail, what. § 2781. How regulated. § 2772. Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person. 567 INDEMNITY. §§ 2773-2778 § 2773. Au agreement to indemnify a person against an act thereafter to be done is void, if the act be known by such person, at the time of doing it, to be unlawful. [Amendment, approved March 80, 1874; Amendments 1873-4, 259. In effect July 1, 1874.] § 2774. An agreement to indemnify a person against an act already done is valid, even though the act was known to be wrongful, unless it was a felony. § 2775. An agreement to indemnify against the acts of a certain person applies not only to his acts and their consequences, but also to those of his agents. § 2776. An agreement to indemnify several per- sons applies to each, unless a contrary intention appears. § 2777. One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately to ev- ery person injured by such act. § 2778. In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears. 1. Upon an indemnity against liability, express- ly, or in other equivalent terms, the person indem- nified is entitled to recover upon becoming liable; 2. Upon an indemnity against claims, or de- mands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not en- titled to recover without payment thereof; 3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defence against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion; §§ 2779-2781 INDEMNITY. 568 4. The person iudemnifying is bound, on re- quest of the person indemnified, to defend actions or proceedings brought against the latter in re- spect to the matters embraced by the indemnity, but the person indemnified has the right to con- duct such defences, if he chooses to do so; 5. If, after request, the person indemnifying ne- glects to defend the person indemnified, a recov- ery against the latter, suffered by him in good faith, is conclusive in his favor against the for- mer; (3. If the person indemnifying, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defence, judgment against the latter is only presumptive evidence against the former; 7. A stipulation that a judgment against the person indemnified shall be conclusive upon the person indemnifying, is inapplicable if he had a good defence upon the merits, which by want of ordinary care he failed to establish in the action. § 2779. Where one, at the request of another, engages to answer in damages, whether liquidat- ed or unliquidated, for any violation of duty on the part of the latter, he is entitled to be reimbursed in the same manner as a surety, for whatever he may pay. § 2780. Upon those contracts of indemnity which are taken in legal proceedings as security for the performance of an obligation imposed or declared by the tribunals, and linown as under- takings or recognizances, the sureties are called bail. § 2781. The obligations of bail are governed by the statutes specially applicable thereto. 569 GUARANTY. §§ 2787-2792 TITLE XIII. GUARANTY. Chapter I. II. Guaranty iu General, §§ 2787-2825. Siiretysliip, §§ 2831-2866. CHAPTER I. GUARANTY IN GENERAL. Article I. Definition of Guaranty, §§ 2787-2788. II. Creation of Guaranty, §§ 2792-2795. III. Interpretation of Guaranty, §§ 2799-2802. IV. Liability of Guarantors. §§ 2806-2810. V. Continuing Guaranty, §§ 2814-2815. VI. Exoneration of Guarantors, §§ 2819-2825. ARTICLE I. DEFINITION OF GUARANTY. § 2787. Guaranty, what. § 2788. Knowledge of principal not necessary to creation of guaranty. § 2787. A guaranty is a promise to answer for the debt, default, or miscarriage of another per- son: Stats. 1850, 266, sec. 12. § 2788. A person may become guarantor even without the knowledge or consent of the principal. ARTICLE II. CREATION OF GUARANTY. § 2792. Necessity of a consideration. § 2793. Guaranty to be in writing, &c. I 2794. Engagement to answer for obligation of another, when deemed original. § 2795. Acceptance of guaranty. § 2792. Where a guaranty is entered into at the same time with the original obligation, or with §§2793,2794 GUARANTY. 570 the acceptance of the hitter by the guarantee, and forms with that oblis'atiou a part of the considera- tion to him, no other consideration need exist. In all other cases there must be a consideration dis- tinct from that of the original obligation. § 2793. Except as prescribed by the next sec- tion, a guaranty must be in writing, and signed by the guarantor; but the writing need not ex- press a consideration. § 2794. A promise to answer for the obligation of another, in any of the following cases, is deem- ed an original obligation of the promisor, and need not be in writing: 1. Where the promise is made by one who has received property of another upon an undertak- ing to apply it pursuant to such promise; or by one who has received a discharge from an obliga- tion in whole or in part, in consideration of such promise; 2. Where the creditor parts with value, or en- ters into an obligation, in consideration of the ob- ligation, in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debt- or, and the person in whose behalf it is made, his surety ; 3. AVhere the promise, being for an antecedent obligation of another, is made upon the considera- tion that the party receiving it cancels the ante- cedent obligation, accepting the new promise as a substitute therefor: or upon the consideration that the party receiving it releases the property of another from a levy, or his person from imprison- ment under an execution on a judgment obtained upon the antecedent obligation, or upon a consider- ation beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person; .^71 GUARANTY §§ 2795-2801 4. Wliere a factor undertakes, for a commis- sion, to sell merchandise and guaranty the sale; 5. AY here the holder of an instrument for the payment of money, upon which a third person is or may become liable to him, transfers it in pay- ment of a precedent debt of his own, or for a new consideration, and in connection with such trans- fer enters into a promise respecting such instru- ment. § 2795. A mere offer to guaranty is not bind- ing, until notice of its acceptance is communicated by the guarantee to the guarantor; but an absolute guaranty is binding upon the guarantor without notice of acceptance. Absolute guaranty: See sec. 280G, post. ARTICLE III. INTERPRETATION OF GUARANTY. I 2799. Guaranty of incomplete contract. § 2800. Guaranty that an obligation is good or collectible. § 2801. Recovery upon such guaranty. § 2S02. Guarantor's liability upon such guaranty. § 2799. In a guaranty of a contract, the terms of which are not then settled, it is implied that its terms shall be such as will not expose the guarantor to greater risks than he would incur under those terms which are most common in similar contracts at the place where the principal contract is to be performed. § 2800. A guaranty to the effect that an obli- gation is good, or is collectible, imports that the debtor is solvent, and that the demand is collec- tible by the usual legal proceedings, if taken with reasonable diligence. § 2801. A guaranty, such as is mentioned in §§ 2802-2808 GUARANTY. 572 the last section, is not discharged by an omission to take proceedings upon the principal debt, or upon any collateral security for its payment, if no part of the debt could have been collected there- by. § 2802. In the cases mentioned in section 2800, the removal of the principal from the State, leav- ing no property therein from which the obligation might be satisfied, is equivalent to the insolvency of the principal in its effect upon the rights and obligations of the guarantor. ARTICLE IV. LIABILITY OF GUARANTORS. § 2806. Guaranty, how construed. § 2807. Liability upon guaranty of payment or perform- ance. § 2808. Liability upon guaranty of a conditional obligation. § 2809. Obligation of guarantor cannot exceed that of the principal. § 2810. Guarantor not liable on an illegal contract. § 2806. A guaranty is to be deemed uncondi- tional unless its terms import some condition pre- cedent to the liabilitj'- of the guarantor. § 2807. A guarantor of payment or perform- ance is liable to the guarantee immediately upon the default of the principal, and without demand or notice. § 2808. Where one guarantees a conditional ob- ligation, his liability is commensurate with that of the principal, and he is not entitled to notice of the default of the principal, unless he is unable, by the exercise of reasonable diligence, to acquire in- formation of such default, and the creditor has actual notice thereof. :>-?. GUARANTY. §§ 2809-2815 § 2809. The obligation of a guarantor must be neither larger in amount nor in other respects more burdensome than that of the principal; and if in its terms it exceeds it, it is reducible in pro- portion to the principal obligation. § 2810. A guarantor is not liable if the con- tract of the principal is unlawful; but he is liable notwithstanding any mere personal disability of the principal, though the disability be such as to mal^e the contract void against the principal. ARTICLE V. CONTINUING GUARANTY. § 2814. Continuing guaranty, what. § 2815. Revocation. § 2814. A guaranty relating to a future liabil- ity of the principal, under successive transactions, which either continue his liability or from time to time renew it after it has been satisfied, is call- ed a continuing guaranty. § 2815. A continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions, unless there is a continuing consider- ation as to such transactions which he does not re- nounce: Sec. 1629, ante. §§ 2819-2821 GUARANTY. 574 ARTICLE VI. EXONERATION OF GUARANTORS. § 2819. What dealings with debtor exonerate guarantor. § 2820. Void promises. § 2821. Rescission of alteration. § 2822. Part performance. § 2823. Delay of creditor does not discharge guarantor. § 2824. Guarantor indemnified by the debtor, not exoner- ated. § 2825. Discharge of principal by act of law does not dis- charge guarantor. § 2819. A guarantor is exonerated, except so far as he may be indemnified by the principal, if by anj' act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way Impaired or sus- pended. See sees. 2S0G et seq. Rights of creditor where security given: See sec. 2854, post. Forbearance will not discharge: Sec. 2823. Neglect or refusal to sue after request will dis- charge: Sec. 2845, post. Who are sureties: See sec. 2832, post. Discharge of surety by alteration of principal's contract: See sec. 2821. § 2820. A promise by a creditor, which for any cause is void, or voidable by him at his option, does not alter the obligation or suspend or impair the remedy, within the meaning of the last sec- tion. § 2821. The rescission of an agreement alter- ing the original obligation of a debtor, or impair- ing the remedy of a creditor, does not restore the .-j75 guaranty. §§ 2822-2825 liability of a guarantor who has been exonerated by such agreement. § 2822. The acceptance, by a creditor, of any- thing iu partial satisfaction of an obligation, re- duces the obligation of a guarantor thereof, in the same measure as that of the principal, but does not otherwise affect it. Note.— Part performance of the obligation, ex- pressly accepted by the creditor in writing, would extinguish the obligation of the debtor, and there- fore that of the surety: See sees. 1523, 1524. § 2823. Mere delay on the part of a creditor to proceed against the principal, or to enforce any other remedy, does not exonerate a guarantor. Notice to creditor to sue: See post, see. 2845. § 2824. A guarantor, who has been Indemnified by the principal, is liable to the creditor to the extent of the indemnity, notwithstanding that the creditor, without the assent of the guarantor, may have modified the contract or released the princi- pal. See sec. 2819 and sec. 2794, subd. 1, ante. § 2825. A guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the credi- tor. CHAPTER II. SURETYSHIP. Article I. Who are Sureties, §§ 2831-2832. II. Liability of Sureties, §§ 2836-2840. III. Rights of Sureties, §§ 2844-28-50. rv. Rights of Creditors, § 28-54. V. Letter of Credit. §§ 2859-2866. §§ 2831-2837 GUARANTY. 576 ARTICLE I. WHO ARE SURETIES. § 2831. Surety, what. § 2832. Apparent principal may show that he is surety. § 2831. A surety is one who at the request of another aud for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third per- son, or hypothecates property as security therefor. Distinction between sureties and guarantors: See sees. 2807. 2S08. § 2832. One who appears to be a principal, whether by the terms of a written instrument or otherwise, may show that he is in fact a surety, except as against persons who have acted on the faith of his apparent character of principal. ARTICLE II. LIABILITY OP SURETIES. § 2836. Limit of surety's obligation. § 2837. Rules of interpretation. § 2838. Judgment against surety does not alter the re- lation. § 2839. Surety exonerated by performance or offer of per- formance. § 2840. Surety discharged by certain acts of the creditor. § 2836. A surety cannot be held beyond the express terms of his contract, and if such con- tract prescribes a penalty for its breach, he can- not in any case be liable for more than the pen- alty. § 2837. In interpreting the terms of a contract 577 GUARANTY. §§ 2838-2840 of suretyship, the same rules are to be observed as in 'the case of other contracts. § 2838. Notwithstanding- the recovery of judg- ment by a creditor against a surety, the latter still occupies the relation of surety. § 2839. Performance of the principal obliga- tion, or an offer of such performance, duly made as provided in this Code, exonerates a surety. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 260. In effect July 1, 1874.] See sees. 1485-1505, ante. § 2840. A surety is exonerated: 1. In like manner with a guarantor; 2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or in- consistent with his rights, or which lessens his security; or, 3. To Che extent to which he is prejudiced by an omission of the creditor to do anything, when required by the surety which it is his duty to do. Subd. 1: See sec. 2819. Subd. 3: See sec. 2845. Civ. Code.— 49. §§ 2844-2847 GUARANTY. 578 AltTlCLE III. RIGHTS *0F SURETIES. § 2844. Surety has rights of guarantor. § 2845. Surety may require the creditor to proceed against the principal. § 2846. Surety may compel principal to perform obliga- tions, when due. § 2847. A principal bound to reimburse his surety. § 2848. The surety acquires the right of the creditor. § 2849. Surety entitled to benefit of securities held by creditor. S 2850. The property of principal to be taken first. § 2844. A surety lias all the rights of a guar- autor. whether he become personally responsible or not. See sees. 28U8-2810. § 2845. A surety may require his creditor to proceed against the principal, or to pursue any other remedy in his power which the surety can- not himself pursue, and which would lighten his burden: and if in such case the creditor neglects to do so. the surety is exonerated to the extent to which he is thereby prejudiced. Mere delay by the creditor to pursue the prin- cipal does not discharge the surety, is the rule recognized by section 2823: See sec. 284U, subd. 1. § 2846. A surety may compel his principal to perform the obligation when due. The action under this section is provided for in section 1050, Code of Civil Procedure. Section 2845, ante, may be considered as con- taining another substitute for the equitable ac- tion. § 2847. If a surety satisfies the principal obli- gation or any part thereof, whether with or with- 67y GUARANTY. SS 2848-2854 out legal proceediu!4-8. the priuciyal is bound to re- imburse what he has disbursed, includiug neces- sary costs and expenses; but the surety has no claim for reimbtirsement against other persons, though they may have been benefited by his act, except as prescribed by the next section. ^ 2848, A surety, tipon satisfying the obliga- tion of the principal, is entitled to enforce every remedy which the creditor then has against the principal to the extent of reimbursing what he has expended, and also to reqtiire all his co-sure- ties to contribute thereto, without regard to the order of time in which they became such. § 2849. A surety is entitled to the benefit of every security for the performance of the princi- pal obligation held by the creditor, or by a co- surety at the time of entering into the contract of suretyship, or acquired by him afterwards, wheth- er the surety was aware of the security or not. § 2850. Whenever property of a surety is hy- pothecated with property of the principal, the surety is entitled to have the property of the prin- cipal first applied to the discharge of the obliga- tion. ARTICLE IV. RIGHTS OF CREDITORS. $ 2854. Creditor entitled to benefit of securities held by surety. S 2854. A creditor is entitled to the benefit of everything which a surety has received from the debtor by way of security for the performance of the obligation, and may, upon the maturity of the obligation, compel the application of such security To its satisfaction. §§ 2858-2863 GUARANTY. 580 ARTICLE V. LETTER OF CREDIT. § 2858. Letter of credit, what. § 2859. How addressed. § 2830. Liability of the writer. § 2861. Letters of credit, either general or special. § 2862. Nature of general letter of credit. § 2863. Extent of general letter of credit. § 2864. A letter of credit may be a continuing guaranty. § 2865. When notice to the writer necessary. § 2866. The credit given must agree with the terms of the letter. § 2858. A letter of credit is a written instru- ment, addressed by one person to another, re- questing the latter to give credit to the person in whose favor it is drawn. S 2859. A letter of credit may be addressed to several persons in succession. § 2860. The writer of a letter of credit is, upon the default of the debtor, liable to those who gave credit in compliance with its terms. § 2861. A letter of credit is either general or special. When the request for credit in a letter is addressed to specified persons by name or descrip- tion, the letter is special. All other letters of credit are general. Credit to correspond witli terms of the letter: See sec. 2866, post. § 2862. A general letter of credit gives any person to whom it may be shown authority to comply with its request, and by his so doing it be- comes, as to him, of the same effect as if ad- dressed to him by name. § 2863. Several persons may successively give credit upon a general letter. 581 I.IBN. 2864-2866 § 2864. If the parties to a letter of credit ap- pear, by its terms, to contemplate a course of fu- ture dealing between the parties, it is not ex- hausted by giving a credit, even to the amount limited by the letter, which is subsequently re- duced or satisfied by payments made by the debt- or, but is to be deemed a continuing guaranty. § 2865. The writer of a letter of credit is liable for credit given upon it without notice to him, un- less its terms express or imply the necessity of giving notice. § 2866. If a letter of credit prescribes the per- sons by whom, or the mode in which, the credit is to be given, or the term of credit, or limits the amount thereof, the writer is not bound except for transactions which, in these respects, con- form strictlv to the terms of the letter. TITLE XIV. LIEN. Chapter I. Liens in General, §$ 2872-2913. II. Mortgage, §§ 2920-2971. III. Pledge, §§ 2986-3011. IV. Bottomry, §§ 3017-3029. V. Respondentia, §§ 3036-3040. VI. Other Liens, §§ 3046-3060. VII. Stoppage in Transit, §§ 3076-8080. CHAPTER I. LIENS IN GENERAL. Article I. Definition of Liens, 5§ 2872-2877. II, Creation of Liens, §§ 2S81-2SS4. III. Effect of Liens, §§ 2SSS-2S92. IV. Priority of Liens, §§ 2S97-2899. V. Redemption from Liens, §§ 2903-2905. VI. Extinction of Liens, §§ 2909-2913. §§ 2872-2876 T^IEN. 582 AKTICLE I. DEFINITION OF LIEN8 S 2872. Lien, what. § 2873. Liens, general or special. § 2874. General lien, what. S 2875. Special lien, what. § 2876. Prior liens. § 2877. Contracts subject to provisions of this chapter. § 2872. A lien is a charge imposed in some mode other than by a transfer in trust upon spe- cific property, by which it is made security for the performance of an act. [Amendment approved February 15, 1878; Amendments 1877-8, 88. In effect April 16, 1878.] Compare Code Civ. Proc, sec. 1180. § 2873. Liens are either general or special. § 2874. A general lien is one which the holder thereof is entitled to enforce as a security for the performance of all the obligations, or all of a particular class of obligations, which exist in his favor against the owner of the property. Factors. — Usage of trade usually gives factors a general lien, which is establislied in this State by section 3053, post. Banker: Sec. 3054, post. Master of ship: Sec. 3055, post. Mate and seamen: Sec. 3056, post; post, also. Appendix, pp, 743 et seq.; 790. Lien for services: See sec. 3051, post. § 2875. A special lien is one which the holder thereof can enforce only as security for the per- formance of a particular act or obligation, and of such obligations as may be incidental thereto. Incidental thereto: See next section. S 2876. Wliere the holder of a special lien is 583 LIEN. §5 2877-28S4 compelled to satisfy a prior lien for his own pro- tection, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists. S 2877. Contracts of mortgage, pledge, bot- tomry, or respondentia, are subject to all the pr*^ visions of this chapter. ARTICLE II. CREATION OF LIENS. ? 2881. Lien, how created. I 2882. No lien for claim not due. S 2883. Lien on future interest. § 2884. Lien may be created by contract. s^ 288 1. A lien is created: 1. By contract of the parties; or, 2. By operation of law. § 2882. No lien arises by mere operation of law until the time at which the act to be secured Thereby ought to be performed. § 2883. An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it ac- quires an interest in the thing, to the extent of such interest. ^ 2884. A lieu may be created by contract, to take immediate effect, as security for the per- formance of obligations not then in existence. Retention of possession no evidence of fraud: See note sec. 2920. §§ 2888-2892 LIEN. 584 ARTICLE III. EFFECT OF LIENS. § 2888. Lien, or contract for lien, transfers no title. § 2889. Certain contracts void. § 2890. Creation of lien does not imply personal obligation. § 2891. Extent of lien. § 2892. Holder of lien not entitled to compensation. § 2888. Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, trans- fers no title to the property subject to the lien. Sees. 2927, 2929, 2936, post. § 2889. All contracts for the forfeiture of prop- erty subject to a lien, in satisfaction of the obli- gation secured thereby, and all contracts in re- straint of the right of redemption from a lien, are void. § 2890. The creation of a lien does not of itself imply that any person is bound to perform the act for which the lien is a security. See sees. 2909, 2928, 3000, post. § 2891. The existence of a lien upon property does not of itself entitle the person in whose favor it exists to a lien upon the same property for the performance of any other obligation than that which the lien originally secured. § 2892. One who holds proi^erty by virtue of a lien thereon, is not entitled to compensation from the owner thereof for any trouble or expense which he incurs respecting it, except to the same extent as a borrower, under sections 1892 and 1893. 585 LIEN. §§ 2897-2899 ARTICLE IV. PRIORITY OF LIENS. I 2897. Priority of liens. § 2898. Priority of mortgage for price. I 2899. Order of resort to different funds. § 2897. Other things being equal, different liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia. § 2898. A mortgage given for the price of real property, at the time of its conveyance, has prior- ity over all other liens created against the pur- chaser, subject to the operation of the recording laws. § 2899. Where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lieu, if he can do so without risk of loss to himself, or of injustice to other persons, must resort to the prop- erty in the following order on the demand of any party interested: 1. To the things upon which he has an exclusive lien; 2. To the things which are subject to the few- est subordinate liens; 3. In like manner inversely to the number of subordinate liens upon the same thing; and, 4. When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had:— (1.) To the things which have not been trans- ferred since the prior lien was created; (2.) To the things which have been so trans- ferred without a valuable consideration; and. §§ 2903-2905 LIEN. 586 ^3.) To the things which have been so trans- ferred for a valuable consideration in the inverse order of the transfer. ARTICLE Y. REDEMPTION FROM LIEN. § 2903. Right to redeem. § 2904. Rights of inferior lienor. § 2905. Redemption from lien, how made. § 2903. Every person, having an interest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed. Redemptioners from execution sale: See Code Civ. Proc, sees. 701 et seq. Pledgor's right of redemption may be foreclosed: Sec. 3011, post; see Code Civ. Proc, sees. 701-707, 346, 347. § 2904. One who has a lien inferior to another, upon the same property, has n right; 1. To redeem the property in the same manner as its owner might, from the superior lien; and. 2. To be subrogated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby. § 2905. Redemption from a lien is made by performing or offering to perform, the act for the performance of which it is a security, and paying or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay. See sec. 1490, ante. 587 LIEN. §§ 2909-2913 ARTICLE. VI. EXTINCTION OF LIENS. § 2909. Lien deemed accessory to the act whose perform- ance it secures. § 2910. Extinction by sale or conversion. § 2911. Lien extinguished by lapse of time under Statute of Limitations. S 2912. Apportionment of lien. § 2913. When restoration extinguishes lien. § 2909. A lien is to be deemed aec^ssary to the act for the performance of which it is a security, whether any person is bound for such perform- ance or not, and is extinguishable in like manner with any other accessory obligation. Assignment of debt: See sec. 2936, post. $ 2910. The sale of any property on which there is a lien, in satisfaction of the claim secured thereby, or in case of personal property, its wrong- ful conversion by the person holding the lien, ex- tinguishes the lien thereon. § 2911. A lien is extinguished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation. See sec 2922. post. Code Civ. Proc. sees. 335- 347. § 2912. The partial performance of an act se- cured by a lien does not extinguish the lien upon any part of the property subject thereto, even if it is divisible. S 2913. The voluntary restoration of property to its owner by the holder of a lien thereon, de- pendent upon possession, extinguishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it. notwithstanding any § 2920 LIEN. 588 such agreemeut, as to creditors of the owner and persons, subsequently acquiring a title to the prop- erty, or a lien thereon, in good faith, and for a good consideration. [Amendment approved March 30, 1874; Amendments 1873-4, 260. In effect July 1, 1874.] A third person may act as pledge-holder: Sees. 2997, 2998, post. CHAPTER II. MORTGAGE. Article I. Mortgages in General, §§ 2920-2942. II. Mortgages of Real Property, §§ 2947-2952. III. Mortgages of Personal Property, §§ 2955-2971. ARTICLE I. § 2920. Mortgage, what. § 2921. Property adversely held may be mortgaged. § 2922. To be in writing. § 2923. Lien of a mortgage, when special. § 2924. Transfer of interest, when deemed a mortgage. § 2925. Transfer made subject to defeasance may be proved.. § 2926. Mortgage on what a lien. § 2927. Mortgage does not entitle mortgagee to possession. § 2928. Mortgage not a personal obligation. § 2929. Waste. § 2930. Subsequently acquired title enures to mortgagee. § 2931. Foreclosure. § 2932. Power of sale. § 2933. Power of attorney to execute. § 2934. Recording assignment of mortgage. § 2935. Recording assignment of mortgage not notice to mortgagor. § 2936. Mortgage passes by assignment of debt. § 2937. Time allowed for filing mortgage for record. (Re- pealed.) § 2938. Mortgage, how discharged. § 2939. Same. § 29391/^. Discharge by foreign executors. § 2940. Certificate and record of discharge. § 2941. Duty of mortgagee on satisfaction of mortgage. § 2942. Provisions of this chapter do not affect bottomry or respondentia. § 2920. Mortgage is a contract by which spe- cific property is hypothecated for the performance 5S9 LIEN. §§ 2921-2925 uf au act, without the necessity of a change of possession. Note.— The Code substitutes, instead of the actu- al possession previously requisite, the recording provisioQS of sees. 2957, 2959, 2962, 2963, 2965, and 2966. Actual transfer of possession of personalty would change it into a pledge: See 2924, post. § 2921. A mortgage may be created upon prop- erty held adversely to the mortgagor. This provision is a logical sequence of section 2947, post, and section 1047, ante. § 2922. A mortgage can be created, renewed, or extended, only by writing, executed with the formalities required in the case of a grant of real property. See sec. 2948, post. § 2923. The lien of a mortgage is special, un- less otherwise expressly agreed, and is independ- ent of possession. Special lien.— For definition, see sec. 2875. § 2924, Every transfer of an interest in prop- erty, other than in trust, made only as a security for the performance of another act, is to be deem- ed a mortgage, except when in the case of per- sonal property it is accompanied by actiial change of possession, in which case it is deemed a pledge. [Amendment approved March 30, 1874; Amend- ments 1873-4, 260. In effect July 1, 1874.] Deed absolute on its face, when a mortgage: See sees. 2924, 2950. § 2925. The fact that a transfer was made sub- ject to defeasance on a condition, may, for the purpose of showing such transfer to be a mort- gage, be proved (except as against a subsequent Civ. Code.— 50. SS 2926-293U LIEN. 590 purchaser or iucumbrancer for value aud without notice), though the fact does not appear by the terms of the instrument. Deed absolute on its face a mortgage: See sees. 2924, 2950. Recording defeasance: See sec, 2950, post. § 2926. A mortgage is a lien upon everything that would pass by a grant of the property. Fixtures generally: See ante, sec. 660. Growing crops: See sees. 2955, 2972. § 2927. A mortgage does not entitle the mort- gagee to the possession of the property, unless au- thorized by the express terms of the mortgage; but after the execution of the mortgage the mort- gagor may agree to such change of possession without a new consideration. Mortgagee's possession: See sees. 2920, 2923. § 2928. A mortgage does not bind the mortga- gor personally to perform the act for the perform- ance of which it is a security, unless there is an express covenant therein to that effect. § 2929. No person whose interest is subject to the lien of a mortgage may do any act which will substantially impair the mortgagee's security. Damages are recoverable by the purchaser at the sale, for injuries to the property by the tenant between such sale and the delivery of the deed, by section 746 of the Code of Civil Procedure. § 2930. Title acquired by the mortgagor subse- quent to the execution of the mortgage enures to the mortgagee as security for the debt, in like manner as if acquired before the execution. [Amendment approved March 30. 1874: Amend- ments 1873-4, p, 260. In effect July 1. 1874.] Sec. 1106. ante. 591 LIK:X. §§ 2931-2935 § 2931. A mortgagee may foreclose the right of redemption of the mortgagor in the manner pre- scribed by the Code of Civil Procedure. Foreclosure of mortgage.— Place of trial: Code Civ. Proc, sec. 392: receiver may be appointed: Id., sec. 564; proceedings in actions for foreclosure: Id., sec. 726; remedy exclusive: Id., sec, 744; sur- plus, how disposed of: Id., sec. 727; installment loans: Id., sec, 728; actions against estates: Id., sec. 1500. S 2932. A power of sale may be conferred by a mortgage upon the mortgagee or any other per- son, to be exercised after a breach of the obliga- tion for which the mortgage is a security. Power of sale assignable.— Power of sale is a part of the security and passes by assignment of the debt: Sec, 858, ante, § 2933. A power of attorney to execute a mort- gage must be in writing, subscribed, acknowl- edged, or proved, certified, and recorded in lil^e manner as powers of attorney for grants of real property. Authorizations generally: See sec. 2309, ante. § 2934. An assignment of a mortgage may be recorded in like manner as a mortgage, and such record operates as notice to all persons subse- quently deriving title to the mortgage from the assignor. [Amendment approved March 30. 1874: Amendments 1873-4. p. 261. In effect July 1. 1874.] S 2935. When the mortgage is executed as se- curity for money due. or to become due. on a promissory note, bond, or other instrument, desig- nated in the mortgage, the record of the assign- ment of the mortgage is not. of itself, notice to a mortgagor, his heirs, or personal representatives. 1§ 2936-2939^^ LIEN. 592 SO as to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument. [Amendment approv- ed March 30, 1874: Amendments 1873-4, p. 261. In effect July 1, 1874.] § 2936. The assignment of a debt secured by mortgage carries with it the security. § 2937. [Repealed March 30, 1874; Amend- ments 1873-4, 261. In effect July 1, 1874.] See sec. 858, ante. § 2938. A recorded mortgage may be discharg- ed by an entry in the margin of the record there- of, signed by the mortgagee, or his personal rep- resentative or assignee, acknowledging the satis- faction of the mortgage in the presence of the recorder, who must certify the aclvuowledgment in form substantially as follows: "Signed and ac- knowledged before me, this day of , in the year . A B, Recorder." § 2939. A recorded mortgage, if not discharged as provided in the preceding section, must be dis- charged upon the record by the officer having cus- tody thereof, on the presentation to him of a cer- tificate signed by the mortgagee, his personal rep- resentatives, or assigns, acknowledged or proved and certified as prescribed by the Chapter on Re- cording Transfers, stating that the mortgage has been paid, satisfied, or discharged. § 2939^/1). Foreign executors and administra- tors may satisfy mortgages upon the records of any county in this State, upon producing and record- ing in the office of the County Recorder of the county in which such mortgage is recorded, a duly certified and authenticated copy of their letters testamentary or of administration, and which cer- :.03 LIEN. §§ 2940-2942 tificate yhall also recite that said letters have not been revolted. [New section approved March 8, 1S95; States. 1895, p. 20. In effect immediately.] § 2940. A certificate of the discharge of a mort- gage, and the proof or acknowledgment thereof, must be recorded at length, and a reference made in the record to the book and page where the mort- gage is recorded, and in the minute of the dis- charge made upon the record of the mortgage to the book and page where the discharge is re- corded. § 2941. When any mortgage has been satisfied, the mortgagee or his assignee must immediately, on demand of the mortgagor, execute, acknowl- edge, and deliver to him a certificate of the dis- charge thereof, so as to entitle it to be recorded, or he must enter satisfaction, or cause satisfaction of such mortgage to be entered of record, and any mortgagee, or assignee of such mortgage, who re- fuses to execute, acknowledge, and deliver to the mortgagor the certificate of discharge, or to enter satisfaction or cause satisfaction of the mortgage to be entered, as provided in this chapter, is lia- ble to the mortgagor, or his grantee or heirs, for all damages which he or they may sustain by rea- son of such refusal, and shall also forfeit to him or them the sum of one hundred dollars. [Amend- ment approved April 1.5, ISSO; Amendments 1880, p. 10. In effect April 15, 1880.] § 2942. Contracts of bottomry or respondentia, although in the nature of mortgages, are not af- fected by any of the provisions of this chapter. Bottomry: See sec. 3017, post. Respondentia: See sec. 3036, post. §S 2947-29o0 LIEN. 504 AKTICLE 11. MORTGAGE OF REAL PROPERTY. § 2947. What real property may be mortgaged. .^ 2948. Form of mortgage. .^ 2949. What must be recorded as a mortgage. (Repealed.) S 2950. Defeasance, to affect grant absolute on its face, must be recorded. ^ 2951. By whom paid after property passes by succession or will. (.Repealed.) 5 2952. May be recorded. § 2947. Any interest in real property which is capable of being transferred may be mortgaged. See see. 1045, ante. § 2948. A mortgage of real property may be made in substantially the following form: "This mortgage, made the day of , in the year , by A B, of , mortgagor, to C D, of , mortgagee, witnesseth: "That the mortgagor mortgages to the mortga- gee [here describe the property], as security for the payment to him of dollars, on [or before] the day of , in the year , with interest thereon [or as security for the payment of an obli- gation, describing it, etc.] A B." Deed absolute in form construed as a mortgage: See sec. 2924. ante. § 2949. [Repealed March 30, 1874; Amend- ments 1873-4, 2b2. In effect July 1, 1874. S 2950. AVhen a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain con- ditions, such grant is not defeated or affected as against any person other than the grantee or his heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed LIEN. Sj 2lt31. 2952 .iiid ackuowledjied. shall have been recorded in the office of the county recorder of the county ^\ here the property is situated. See sec. 1217, ante. Deed absolute on its face, when a mortgage: See sees. 2924. 2925. 2950. Compare with sec. 2925, ante. s^ 2951. [Repealed March 30. 1874: Amend- ments 1873-4. 262. In effect July 1, 1874.] S 2952. Mortgages of real property may be acknowledged or proved, certified and recorded, in like manner and with like effect as grants there- of. [Amendment approved March 30, 1874; Amendments 1873-4. p. 262. In effect July 1. 1S74.] See sees. 11(59-1172 and 1213-1217, ante. Fees for acknowledgment and recording: Polit. ("ode. sees. 798, 4235, 4245. Mortgages recorded in separate set of books: Sec. 1171, ante. § 2955 LIEN. 596 ARTICLE III. MORTGAGE OF PERSONAL PROPERTY. § 2955. What personal property may be mortgaged. § 2956. Form of personal mortgage, § 2957. When void as to third persons. § 2958. Mortgage of ships, when void as to third persons. § 2959. Where recorded. § 2960. Property in transit, where to be recorded. § 2961. Property of a common carrier, where to be recorded. § 2962. Recorded in different places. § 2963. Personal mortgage may be recorded. § 2964. Certified copies may be recorded, when. § 2965. Property exempt from effect of mortgage, when. § 2966. May be taken by mortgagee as a pledge, when. § 2967. How foreclosed. § 2908. Mortgage property may be levied upon. § 2969. Limitations on right of levy. § 2970. Distribution of proceeds of sale under process. § 2971. Sections not applicable to mortgage of certain ships. § 2972. Lien of a mortgage on growing crop. § 2955. Mortgages may be made upon the fol- lowing personal property, and none other: First— Locomotives, engines, and other rolling- stock of a railroad. Second— Steamboat machinery, the maclynery used by machinist foundrymen and mechanics. Third— Steam engines and boilers. Fourth— Mining machinery. Fifth— Printing presses and material. Sixth— Professional libraries. Seventh— Instruments of surveyors, physicians, and dentists. Eighth— Upholstery, furniture, and household goods. Ninth— Oil paintings, pictures, and works of art. Tenth— All growing crops, including grapes and fruit. Eleventh— Vessels of more than five tons bur- den. Twelth— Instruments, negatives, furniture, and fixtures of a photograph gallery. 597 LIEN. § 2936 Thirteenth— The machinery, qasks, pipes, tubes, and utensils used in the manufacture or storage of wine, fruit brandy, fniit syrups, or sugar, also Nvines, fruit brandy, fruit syrup, or sugar, with the cooperage in which the same are contained. Fourteenth— Pianos and organs. Fifteenth— Iron and steel safes. Sixteenth— Neat cattle, horses, mules, swine, sheep, and goats, and the increase thereof. Seventeenth — Harvesters, threshing outfits, hay presses, wagons, farming implements, and the equipments of a livery stable, including buggies, carriages, harness, robes. Eighteenth— Abstract systems, books, maps, papers, and slips of searchers of records. Nineteenth— Raisins and dried fruits, cured or in process of being cured. Also, all boxes, fruit- graders, drying-trays, and fruit-ladders. [Amend- ment approved March 9, 1897; Stats. 1897, ch. XCI.J This section was also amended in 1895, Stats. 1895, p. 48. Removal of property from mortgaged premises, when larceny : See Penal Code, sec. 502i^. Further chattel is larceny: See Penal Code, sec. 538. § 2956. A mortgage of personal property may be made in substantially the following form: "This mortgage, made the day of , in the year , by A B, of , by occupation a , mortgagor, to C D, of , by occupation a , mortgagee, witnesseth: "That the mortgagor mortgages to the mort- gagee [here describe the property], as security for the payment to him of dollars on [or before] the • day of , in the year , with interest thereon [or, as security for the payment of a note or obligation, describing it, etc.]. A B." S§ 2957-2961 LIEN. 59S ^ 2957. A mortgage of personal propei*ty is void as against creditors of tlie mortgagor and subsequent purcliasers and incumbrancers of tlie jiroperty in good faith and for value, unless: 1. It is accompanied by the aftidavit of all the parties thereto that it is made in good faith and without any design to hinder, delay, or defraud creditors ; 2. It is aclvuowledged or proved, certified and recorded, in like manner as grants of real prop- erty. Recording: See sees. 2959, 2961-2965, post. § 2958. A mortgage of any vessel or part of any vessel under the flag of the United States is void as against any person (other than the moit- gagor, his heirs, and devisee, and persons having actual notice thereof), unless the mortgage is re- corded in the oflice of the collector of customs where such vessel is registered or enrolled. § 2959. A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mortgagor resides, and also of the county in which the property mortgag- ed is situated, or to which it may be removed. Duty of recorder: See Polit. Code, sec. 4235. riecorcl in different places: See sec. 2962. § 2960. For the purposes of this article, proper- ty in transit from the possession of the mortgagee to the countj' of the residence of the mortgagor, or to a location for use, is, during a reasonable time for such transportation, to be taken as sit- uated in the county in which the mortgagor re- sides, or where it is intended to be used. See sec. 2965, subd. 1. § 2961. For a like purpose, personal property used in conducting the business of a common car- ■.90 LIEN. §S 2962-2935 rier is to be taken as situated in the county in ^vllich tlie principal office or place of ])usiness of tiio carrier is located. § 2962. A single mortgage of personal prop- erty, embracing several things of such character or so situated that by the provisions of this arti- cle separate mortgages upon them would be re- quired to be recorded in different places, is only valid in respect to the things as to which it is duly recorded. County where property is situated: Sec. 2959. § 2983. Except as it is otherwise in this article provided, mortgages of personal property may be acknowledged, or proved and certified, recorded in like manner and with lilvc effect as grants of real property; but they must be recorded in books kept for personal mortgages exclusively. See sees. 1169-1171 and 1213-1217. ante. i^ 2964. A certified copy of a mortgage of per- sonal property once recorded may be recorded in any other county, and when so recorded the rec- ord thereof has the same force and effect as Though it was of the original mortgage. <^ 2965. When personal property mortgaged is thereafter by the mortgagor removed from the county in which it is situated, it is, except as be- tween the parties to the mortgage, exempted from the operation thereof, unless either: 1. The mortgagee, within thirty days after such removal, causes the mortgage to be recorded in the county to which the property has been remov- ed; or, 2. The mortgagee, within tliirty days after such removal, takes possession of the ])roperty, as pre- scribed in the next section. §§ 2966-2970 LIEN. 600 § 2966. If the mortgagor voluntarily removes or permits the removal of the mortgaged property from the county in which it was situated at the time it was mortgaged, the mortgagee may take possession and dispose of the property as a pledge for the payment of the debt, though the debt is not due. § 2967. A mortgagee of personal property, when the debt to secure which the mortgage was executed becomes due, may foreclose the mortga- gor's right of redemption by a sale of the prop- erty, made in the manner and upon the notice prescribed by the Title on Pledge, or by proceed- ings under the Code of Civil Procedure. Sale of pledge: See sees. 3000 et seq., post. Actual notice required: Sec. 3002, post. Foreclosure: Code Civ. Proc, sees. 726-728. § 2968. P^ersonal property mortgaged may be taken under attachment or execution issued at the suit of a creditor of the mortgagor. § 2969. Before the property is so taken, the of- ficer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mort- gagee. Measure of special owner's damage for conver- sion: See, post, sec. 3338. § 2970. When the property thus taken is sold under process, the officer must apply the proceeds of the sale as follows: 1. To the repayment of the sum paid to the mortgagee, with interest from the date of such payment; and, 2. The balance, if any, in like manner as the 601 LIEN. §§ 2971-2972 proceeds of sales under execution are applied in other cases. § 2971. Sections 2957, 2959, 2960, 29G1, 2962 2903, 2964, 2965, and 2966 do not apply to any mortgage of a ship or part of a ship under the flag of the United States. § 2972. The lien of a mortgage on a growing crop continues on the crop after severance, wheth- er remaining in its original state or converted into another product, so long as the same remains on the land of mortgagor. [New section approved April 1, 18TS; Amendments 1877-8, p. 89. In ef- fect April 1, 1878.] CHAPTER HI. PLEDGE. § 2986. Pledge, what. § 2987. When contract is to be deemed a pledge. § 2988. Delivery esentlal to validity of pledge. § 2989. Increase of thing. § 2990. Lienor may pledge property to extent of his lien. § 2991. Real owner cannot defeat pledge of property trans- ferred to apparent owner for the purpose of pledge. § 2992. Pledge lender, what. § 2993. Pledge holder, what. § 2994. When pledge lender may withdraw property pledged. § 2995. Obligations of pledge holder. § 2996. Pledge holder must enforce rights of pledgee. § 2997. Obligation of pledgee and pledge holder, for re- ward. § 2998. Gratuitous pledge holder. § 2999. Debtor's misrepresentation of value of pledge. § 3000. ^\ hen pledgee may sell. § 3001. When pledgee must demand performance. § 3002. Notice of sale to pledgor. § 3003. Waiver of notice of sale. § 3004. Waiver of demand. § 30O5. Sale must be by auction. § 3006. Pledgee's sale of securities. Civ. Code— 51 §§ 2986-2990 LIEN. 602 § 3007. Sale on the demand of the pledgor. § 3008. Surplus to be paid to pledgor, § 3009. Same. § 3010. Pledgee's purchase of property pledged. § 3011. Pledgee may foreclose right of redemption. § 2986. Pledge is a deposit of personal prop- erty by way of security for the performance of anotlier act. See sec. 3006, post. Increase of property pledged: Sec. 2989, infra. Note.— Much difficulty has arisen in determin- ing whether a certain transaction is a pledge or a chattel mortgage, the question generally be- ing whether the title has passed or not. In this State, it has been seen, title never passes in case of property conveyed or deposited as security: Sec. 2S88, ante. And, also, whenever the posses- sion of personal property is transferred as secur- ity only, it is to be treated as a pledge: Sec. 2987, post. And even a chattel mortgage, when the possession of the property mortgaged is trans- ferred becomes a pledge: Sec. 2924, and sec. 2987. The question is, therefore, much simplified, pos- session being the criterion. § 2987. Every contract by which the posses- sion of personal property is transferred, as secur- ity only, is to be deemed a pledge. § 2988. The lien of a pledge is dependent on possession, and no pledge is valid until the prop- erty pledged is delivered to the pledgee, or to a pledge holder, as hereafter prescribed. § 2989. The increase of property pledged is pledged with the property. § 2990. One who has a lien upon property may pledge it to the extent of his lien. tj03 LIEN. §§ 2991-2996 Lienor's action for damages: See sec. 3338, post. Compare next section. § 2991. One -svho bas allowed another to as- sume the apparent ownership of property for the purpose of making any transfer of it, cannot set up his own title to defeat a pledge of the prop- erty, made by the other to a pledgee who received the property in good faith, in the ordinary course of business, and for value. § 2992. Property may be pledged as security for the obligation of another person than the own- er, and in so doing the owner has all the rights of a pledgor for himself, except as hereinafter stated. § 2993. A pledgor and pledgee may agree upon a third person with whom to deposit the property pledged, who, if he accepts the deposit, is called a pledge holder. § 2994. One who pledges property as security for the obligation of another, cannot withdraw the property pledged otherwise than as a pledgor for himself might, and if he receives from the debtor a consideration for the pledge he cannot Avithdraw it without his consent. § 2995. A pledge holder for reward cannot ex- onerate himself from his undertaking; and a gra- tuitous pledge holder can do so only by giving reasonable notice to the pledgor and pledgee to appoint a new pledge holder, and in case of their failure to agree, by depositing the property pledg- ed with some impartial person, who will then be entitled to a reasonable compensation for his care of the same. S 2996. A pledge holder must enforce all the rights of the pledgee, unless authorized by him to waive them. §§ 2997 3002 LIEN. 604 § 2997. A pledgee, or a pledge holder for re- ward, assumes the duties and liabilities of a de- positary for reward. Depositary on reward: See sec. 1852, ante. See see. 3007, post. § 2998. A gratuitous pledge holder assumes the duties and liabilities of a gratuitous deposi- tary. See sees. 1845 and 2995. § 2999. Where a debtor has obtained credit, or an extension of time, by a fraudulent misrepre- sentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value represented; and in default thereof may recover his debt immediately, though it be not actually due. § 3000. When performance of the act for which a pledge is given is due, in whole or in part, the pledgee may collect what is due to him by a sale of property pledged, subject to the rules and exceptions hereinafter prescribed. Tlie fourth remedy is provided by sec. 3011, post. And sale is restricted in case of most choses in ac- tion by sec. 3006, post. See also sec. 2890, ante. Foreclosure of pledge: Sec. 3011. § 3001. Before property pledged can be sold, and after performance of the act for which it is security is due, the pledgee must demand perform- ance thereof from the debtor, if the debtor can be found. [Amendment approved March 30, 1874; Amendments 1873-4, p. 202. In effect July 1, 1874.] § 3002. A pledgee must give actual notice to the pledgor of the time and place at which the property pledged will be sold, at such a reasona- 605 LIEX. §§ 3003-300& ble time before the sale as will enable the pledgor to attend. § 3003. Notice of sale may be waived by a pledgor at any time; but is not waived by a mere waiver of demand of performance. § 3004. A debtor or pledgor waives a demand of performance as a condition precedent to a sale of the property pledged, by a positive refusal to perform, after performance is due; but cannot waive it in any other manner except by contract. § 3005. The sale by a pledgee, of property pledged, must be made by public auction, in the manner and upon the notice to the public usual at the place of sale, in respect to auction sales of similar property; and must be for the highest ob- tainable price. § 3006. A pledgee cannot sell any evidence of debt pledged to him, except the obligations of gov- ernments, states, or corporations; but he may col- lect the same when due. § 3007. Whenever property pledged can be sold for a price sufficient to satisfy the claim of the pledgee, the pledgor may require it to be sold, and its proceeds to be applied to such satisfaction,, when due. See sec. 3009, infra. § 3008. After a pledgee has lawfully sold prop- erty pledged, or otherwise collected its proceeds, he may deduct therefrom the amount due under the principal obligation, and the necessary ex- penses of sale and collection, and must pay the surplus to the pledgor, on demand. § 3009. When property pledged is sold by or- der of the pledgor before the claim of the pledgee 5§ 3010-3017 LIEN. 606 is due, the latter may retain out of the proceeds all that can possibly become due under his claim until it becomes due. LAmendment approved March 30, 1874; Amendments 1873-4, p. 262. In effect July 1. 1874.] § 3010. Whenever property pledged is sold at public auction, in the manner provided by section three thousand and five of this Code, the pledgee or pledge-holder may purchase said property at such sale. [Amendment approved March 8, 1895; Stats. 1895, p. 25. In effect immediately.] § 3011. Instead of selling property pledged, as hereinbefore provided, a pledgee may foreclose the right of redemption by a judicial sale, under the direction of a competent court; and in that case may be authorized by the court to purchase at the sale. Pawnbroliers: Penal Code, sees. 338-343. CHAPTER IV. BOTTOMRY. § 3017. Bottomry, what. § 3018. Owner of ship may hypothecate. § 3019. When master may hypothecate ship. § 3020. Same. § 3021. When master may hypothecate freight money. § 3022. Rate of interest. § 3023. Rights of lender, when no necessity for bottomry existed. § 3024. Stipulation for personal liability void. § 3025. When money loaned is to be repaid. § 3026. When bottomry loan becomes due. 8 3027. Bottomry lien, how lost. § 3028. Preference of bottomry lien over other liens. § 3029. Priority of bottomry liens. § 3017. Bottomry is a contract by which a ship or its freightage is hypothecated as security for a loan, which is to be repaid only in case the ship survives a particular risk, voyage, or period. 607 LIEN. §§ 3018-3023 It is independent of possession: Sec. 3027, post, and cases cited. Insurance by owner: See sec. 2660, ante. § 3018. The owner of a ship may hypothecate it or its freightage, upon bottomry, for any lawful purpose, and at any time and place. § 3019. The master of a ship may hypothecate it upon bottomry only for the purpose of procur- ing repairs or supplies which are necessary for ac- complishing the objects of the voyage, or for se- curing the safety of the ship. Freightage, the authority of the master extends to: Sec. 3021. § 3020. The master of a ship can hypothecate it upon bottomry only when he cannot otherwise relieve the necessities of the ship, and is unable to reach adequate funds of the owner, or to ob- tain any upon the personal credit of the owner, and when previous communication with him is precluded by the urgent necessity of the case. May sell ship and cargo: See sees. 2377-2379, ante. § 3021. The master of a ship may hypothecate freightage upon bottomry, under the same cir- cumstances as those which authorize an hypothe- cation of the ship by him. § 3022. rpon a contract of bottomry, the par- ties may lawfully stipulate for a rate of interest higher than that allowed by the law upon other contracts. But a competent court may reduce the rate stipulated when it appears unjustifiable and exorbitant. I 3023. A lender upon a contract of bottomry, made by the master of a ship, as such, may en- force the contract, though the circumstances nee- §§ 3024-3029 LIEN. ; 608 essary to authorize the master to hypothecate the ship did not in fact exist, if, after due diligence and inquiry, the lender had reasonable grounds to believe, and did in good faith believe, in the ex- istence of such circumstances. § 3024. A stipulation in a contract of bottomry, imposing any liability for the loan independent of the maritime risks, is void. § 3025. In case of a total loss of the thing hy- pothecated, from a risk to which the loan was subject, the lender upon bottomry can recover nothing; in case of a partial loss, he can recover only to the extent of the net value to the owner of the part saved. § 3026. Unless it is otherwise expressly agreed, a bottomry loan becomes due immediately upon the termination of the risk, although a term of credit is specified in the contract. § 3027. A bottomry lien is independent of pos- session, and is lost by omission to enforce it with- in a reasonable time. § 3028. A bottomry lien, if created out of a real or apparent necessity, in good faith, is pre- ferred to every other lien or claim upon the same thing, excepting only a lien for seamen's wages, a subsequent lien of materialmen for supplies or repairs indispensable to the safety of the ship, and a subsequent lien for salvage. Seamen's wages: See sees. 2048-2066. § 3029. Of two or more bottomry liens on the same subject, the latter in date has preference, if created out of necessity. 609 LIEN. §§ 3036-3040 CHAPTER V. RESPONDENTIA. § 3036. Respondentia, what. § 3037. Respondentia by owner. § 303S. Respondentia by master. § 3039. Rate of interest. § 3040.. Obligations of ship owner. § 3036. Respondentia is a contract by which a cargo, or some part thereof, is hypothecated as security for a loan, the repayment of which is de- pendent on maritime rislis. § 3037. The owner of cargo may hypothecate it upon respondentia, at any time and place, and for any lawful purpose. § 3038. The master of a ship may hypothecate its cargo upon respondentia only in a case in which he would be authorized to hypothecate the ship and freightage, but is unable to borrow suffi- cient money thereon for repairs or supplies which are necessary for the successful accomplishment of the voyage; and he cannot do so, even in such case, if there is no reasonable prospect of benefit- ing the cargo thereb3^ The same rule of necessity applies here as in the case of bottomry. Master may sell cargo: Sec. 2379, ante. § 3039. The provisions of sections 3022 to 3029 apply equally to loans on respondentia. § 3040. The owner of a ship is bound to repay to the owner of its cargo all which the latter is compelled to pay under a contract of respondentia made by the master, in order to discharge its lien. See sec. 2385, ante. Master personally responsible: Sec. 2383. ante. §§ 3046-3048 LIEN. 610 CHAPTER VI. OTHER LIENS. § 3046. Lien of seller of real property. § 3047. When transfer of contract waives lien. § 3048. Extent of seller's lien. § 3049. Lien of seller of personal property. § 3050. Purchaser's lien on real property. § 3051. Lien for service. § 3052. Liens on personal property. § 3053. Lien of factor. § 3054. Banker's lien. § 3055. Shipmaster's lien. § 3056. Seamen's lien. § 3057. Officers' lien. § 3058. Judgment lien. § 3059. Mechanic's lien. § 3060. Lien on ships. § 3046. One who sells real property has a ven- dor's lien thereon, independent of possession, for so much of the price as remains unpaid and un- secured otherwise than by the personal obligation of the buyer. A transfer of personal security waives the lien: Sec. 3047, infra. Transfer by vendee to bona fide purchaser or incumbrancer discharges lien: Sec. 3048, infra. § 3047. Where a buyer of real property gives to the seller a written contract for payment of all or part of the price, an absolute transfer of such contract by the seller waives his lien to the extent of the sum payable under the contract; but a transfer of such contract in trust to pay debts, and return the surplus, is not a waiver of the lien. § 3048. The liens defined in sections 3046 and 3050 are valid against every one claiming under the debtor, except a purchaser or incumbrancer in good faith and for value. See sec. 19, ante. 611 LIEN. §§ 3049-3052 § 3049. One who sells personal property has a special lieu thereon, dependent on possession, for its price, if it is in his possession when the price becomes payable, and may enforce his lien in like manner as if the property was pledged to him for the price. See sec. 3002, ante. § 3050. One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover bacii, in case of a failure of consideration. § 3051. Every person who, while lawfully in possession of an article of personal property, ren- ders any service to the owner thereof by labor or skill employed for the protection, improvement, safe keeping, or carriage thereof, has a special lien thereon, dependent on possession, for the com- pensation, if any, which is due to him from the owner for such service. And livery or boarding or feed stable proprietors and persons pasturing horses or stock have a lien dependent on posses- sion for their compensation in caring for, board- ing, feeding, or pasturing such horses or stock. [Amendment approved March 29, 1878; Amend- ments 1877-8, p. 89. In effect May 28, 1878.] Carriers' lien: Sees. 2144, 2191. § 3052. A person who makes, alters, or repairs any article of personal property, at the request of the owner, or legal possessor of the property, has a lien on the same for his reasonable charges for work done and materials furnished, and may re- tain possession of the same until the charges are paid. If not paid within two months after the work is done, the person may proceed to sell the property at public auction, by giving ten days' §§ 3053-3057 LIEN. 612 public notice of the sale by advertising in some newspaper published in the county in which the worli was done; or, if there be no newspaper pub- lished in the county, then by posting up notices of the sale in three of the most public places in the town where the work was done, for ten days previous to the sale. The proceeds of the sale must be applied to the discharge of the lien and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof. Lien in favor of owner of propagating animal: See post, Appendix, p. 795. § 3053. A factor has a general lien, dependent on possession, for all that is due to him as such, upon all articles of commercial value that are in- trusted to him by the same principal. Power of pledging: See sees. 2874, 2991. Factors' enforcement of lien: Sec. 2027. § 3054. A banker has a general lien, dependent on possession, upon all property in his hands be- longing to a customer, for the balance due to him j from such customer in the course of the business. § 3055. The master of a ship has a general lien, independent of possession, upon the ship and freightage, for advances necessarily made or lia- bilities necessarily incurred by him for the benefit of the ship, but has no lien for his wages. § 3056. The mate and seamen of a ship have a general lien, independent of possession, upon the ship and freightage, for their wages, which is su- perior to every other lien. § 3057. An officer who levies an attachment or execution upon personal property acquires a special lien, dependent on possession, upon such 613 LIEN. §§3058-3076 property, which authorizes him to hold it until the process is discharged or satisfied, or a judicial sale of the property is had. Attachment and execution: See Code Civ. Proc, sees. 542, 688, and 682. § 3058. The lien of a judgment is regulated by the Code of Civil Procedure. Judgment lien: See Code Civ. Proc, sees. 671, 674. and services upon real property, are regulated by the Code of Civil Procedure. [Sees. 1183-1199.] See also sec. 3052, ante; post, Appendix, p. 742. § 3060. Debts amounting to at least fifty dol- lars, contracted for the benefit of ships, are liens in the cases provided by the Code of Civil Proce- dure. [Sec. 813.] Lien of innkeepers and boarding-house keepers: See sees. 1861-1863 of this Code. Liens for wages, etc.: Code Civ. Proc, sees. 1204-1206. CHAPTER VIL STOPPAGE IN TRANSIT. § 3076. When consignor may stop goods. § 3077. What is insolvency of consignee. § 3078. Transit, when ended. § 3079. Stoppage, how effected. § 3080. Effect of stoppage. § 3076. A seller or consignor of property, whose claim for its price or proceeds has not been extinguished, may, upon the insolvency of the buy- er or consignee becoming known to him after part- ing with the property, stop it while on its transit to the buyer or consignee, and resume possession thereof. Civ. Code- 52 §§ 3077-3080 NEGOTIABLE INSTRUMENTS. 614 That bills of lading are negotiable: See sees. 2127, 2128, ante. § 3077, A person is insolvent, within the mean- ing of the last section, when he ceases to pay his debts in the manner usual with persons of his business, or when he declares his inability or un- willingness to do so. § 3078. The transit of property is at an end when it comes into the possession of the consignee, or into that of his agent, unless such agent is em- ployed merely to forward the property to the con- signee. § 3079. Stoppage in transit can be effected only by notice to the carrier or depositary of the property, or by talcing actual possession thereof. § 3080. Stoppage in transit does not, of itself, rescind a sale, but is a means of enforcing the lien of the seller. TITLE XV. Chapter I. Negotiable Instruments in General, §§ 308C-31G5. II. Bills of Exchange, §§ 3171-3238. III. Promissory Notes, §§ 3244-3248. IV. Checks, §§ 3254-32.55. V. Banli Notes and Certificates of De- posit, §§ 3261-3262. CHAPTER I. NEGOTIABLE INSTRUMENTS IN GENERAL. Article I. General Definitions, §§ 3086-3095. II. Interpretation, §§ 3099-3104. III. Indorsement, §§ 3108-3125. IV. Presentment for Payment, §§ 3130-3137. V. Dishonor, §§ 3141-3151. VI. Fxruse of Presentment and Notice, §§ 3155-3160. VII. Extinction, §§ 3164-3165. 615 NEGOTIABLE INSTRUMENTS. §§ 3086-3090 ARTICLE I. GENERAL DEFINITIONS. § 3086. To what instruments this title is applicable. § 3087. Negotiable instrument, what. § 3088. Must be for unconditional payment of money. 5< 30S9. Payee. § 3090. Instrument may be in alternative. § 3091. Date, etc. § 3092. May contain a pledge, etc. § 3093. What it must not contain. § 3094. Date. § 3095. Different classes of negotiable instruments. § 3086. The provisions of this title apply only to negotiable instruments, as defined in this ar- ticle. § 3087. A negotiable instrument is a written promise or reqnest for the payment of a certain sum of money to order or bearer, in conformity to the provisions of this article. Fictitious payee: See sees. 3102, 3103. § 3088. A negotiable instrument must be made payable in money only, and without any condition not certain of fulfillment. Other contract in instrument: See infra, sec. 8093. § 3089. The person to whose order a negotiable instrument is made payable must be ascertainable at the time the instrument is made. Fictitious payee: See sees. 3102, 3103. Indorsement in blank: See sec. 3125. § 3090. A negotiable instrument may give to the paj-ee an option between the payment of the sum specified therein and the performance of an- other act; but as to the latter, the instrument is not within the provisions of this title. §§ 3091-3095 NEGOTIABLE INSTRUMENTS. 616 § 3091. A negotiable instrument may be with or witliout date, and with or without designation of the time or place of payment. Antedating: See sec. 3094. Time of payment: See sec. 3248, post. Place of payment: See sees. 3100, 3130, 3131, subd. 4. § 3092. A negotiable instrument may contain a pledge of collateral security, with authority to dis- pose thereof. § 3093. A negotiable instrument must not con- tain any other contract than such as is specified in this article. § 3094. Any date may be inserted by the mak- er of a negotiable instrument, whether past, pres- ent, or future, and the instrument is not invali- dated by his death or incapacity at the time of the nominal date. § 3095. There are six classes of negotiable in- struments, namely: 1. Bills of exchange; 2. Promissory notes; 3. Bank notes; 4. Checks; 5. Bonds; G. Certificates of deposit. Bills of lading: Sec. 2127, ante. Certificates of stock are not negotiable instru- ments: See ante, sec. 324. Bills of exchange: See sees. 3171 et seq. Promissory notes: See sees. 3244 et seq. Bank notes, bonds, and certificates of deposit: See sec. 8261. Checks: See sees. 3254 et seq. 617 NEGOTIABLE INSTRUMENTS. §.^ 3099-3102 AKTICLE II. INTERPRETATION OF NEGOTIABLE INSTRUMENTS. § 3099. Time and place of payment. § 3100. Place of payment not specified. § 3101. Instruments payable to a person or his order, how construed. § 3102. Unindorsed note, when negotiable. § 3103. Fictitious payee. § 3104. Presumption of consideration. § 3099. A negotiable instrument which does not specify the time of payment is payable imme- diately. Time of payment: See sec. 3091, ante. § 3100. A negotiable instrument which does not specify a place of payment is payable at the residence or place of business of the maker, or wherever he may be found. [Amendment approv- ed March 30, 1874; Amendments 1873-4, p. 202. In effect July 1, 1874.] Place of payment.— Where no place of payment is expressed in a bill, the drawee's i^lace of resi- dence is understood: Sec. 3131, subd, 4, post. § 3101. An instrument, otherwise negotiable in form, payable to a person named, but with the words added, "or to his order," or "to bearer," or words equivalent thereto, is in the former case payable to the written order of such person, and in the latter case payable to the bearer. § 3102. A negotiable instrument, made paya- ble to the order of the maker, or of a fictitious per- son, if issued by the maker for a valid considera- tion, without indorsement, has the same effect against him and all other persons having notice of the facts as if payable to the bearer. §§ 3103-3109 NEGOTIABLE INSTRUMENTS. 618 Fictitious paj-ee: See next section. Payee generally: See sec. 3089. § 3103. A negotiable instrument, made paya- ble to the order of a person obviously fictitious, is payable to the bearer. § 3104. The signature of every drawer, ac- ceptor, and indorser of a negotiable instrument is presumed to have been made for a valuable con- sideration, before the maturity of the instrument, and in the ordinary course of business. ARTICLE III. INDORSEMENT. § 3108. Indorsement, what. § 3109. Agreement to indorse. § 3110. When may be made on separate paper. § 3111. Kinds of indorsement. ? 3112. Geneifl indoi st'moin. what. _ § 3113. Special indorsement, what. § 3114. General indorsement, how made special. § 3115. Destruction of negotiability by indorser. § 3116. Implied warranty of indorser. § 3117. Indorser, when liable to payee. § 3118. Indorsement without recourse. § 3119. Same. ♦ § 3120. Indorsee privy to contract. § 3121. Rights of accommodation indorser. (Repealed.) § 3122. Effect of want of consideration. § 3123. Indorsee in due course, what. § 3124. Rights of indorsee in due course. § 3125. Instrument left blank. § 3108. One who writes his name upon a ne- gotiable instrument, otherwise than as a maker or acceptor, and delivers it with his name thereon, to another person, is called an indorser, and his act is called indorsement. Indorser before delivery: See sec. 3117. § 3109. One who agrees to indorse a negotiable ♦>19 NEGOTIABLE INSTRUMENTS. §§ 3U0-3116 instrument is boimd to write his signature upon the baclv of the instrument, if there is sufficient space thereon for that purpose. § 3110. When there is not room for a signature upon the back of a negotiable instrument, a sig- nature equivalent to an indorsement thereof may be made upon a paper annexed thereto. § 3111. An indorsement may be general or special. § 3112. A general indorsement is one by which no indorsee is named. § 3113. A special indorsement specifies the in- dorsee. § 3114. A negotiable instrument bearing a gen- eral indorsement cannot be afterward specially indorsed; but any lawful holder may turn a gen- eral indorsement into a special one, by writing above it a direction for payment to a particular Dersor*. § 3115. A special indorsement may. by express words for that purpose, but not otherwise, be so made as to render the instrument not negotiable. § 3116. Every indorser of a negotiable instru- ment, unless his indorsement is qualified, war- rants to every subsequent holder thereof, who is not liable thereon to him: 1. That it is in all respects what it purports to be: 2. That he has a good title to it; 3. That the signatures of all prior parties are binding upon them; 4. That if the instrument is dishonored, the in- dorser will, upon notice thereof duly given to him, or without notice, where it is excused by law, pay §§ 3U7-3119 NEGOTIABLE INSTRUMENTS. 620 the same with interest, unless exonerated under the provisions of sections thirty-one hundred and eighty-nine, thirty-two hundred and thirteen, thir- ty-two hundred and forty-eight, or thirty-two hun- dred and liftj'-five. [Amendment approved March 30, 1874; Amendments 1873-4, p. 203. In effect July 1, 1874.] Note.— Between the engagements of mali:er and acceptor and of drawer and indorser this dis- tinction exists, that the contract of the maimer and acceptor is absolute to pay at maturity, and no presentment is necessary to charge them: See. 3130, post; while the contract of the drawer and indorser is conditional, being contingent upon the true presentment at maturity, and due notice in case it is not paid: Sees. 3141-3151, post; unless a sufficient cause intervene excusing the holder from the performance of this duty: Sees. 3155- 3160, post. Want or failure of consideration: See sec. 3122, and note. Acceptance of bill of exchange admits genuine- ness of drawer's signature: See sec. 3199. Drawer of bill of exchange on acceptance has rights of a first indorser: See sec. 3177. § 3117. One who indorses a negotiable instru- ment before it is delivered to the payee is liable to the payee thereon, as an indorser. Indorser defined: Sec. 3108. § 3118. An indorser may qualify his indorse- ment with the words, "without recourse," or equivalent words; and upon such indorsement, he is responsible only to the same extent as in the case of a transfer without indorsement. § 3119. Except as otherwise prescribed by the last section, an indorsement, without recourse, has the same effect as any other indorsement. S21 NEGOTIABLE INSTRUMENTS. §§ 3120-3124 § 3120. Au indorsee of a negotiable instru- ment has the same rights against every prior par- ty thereto that he would have had if the contract had been made directly between them in the first Instance. Collateral security, etc.: Sees. 2936, 2939, ante. § 3121. [Repealed March 30, 1874; Amend- ments 1ST3-4, 2G3. In effect July 1, 1874.] § 3122. The want of consideration for the uu- dertaliing of a maimer, acceptor, or indorser, of a negotiable instrument does not exonerate him from liability thereon to an indorsee in good faith for a consideration. Writing imports consideration: Sec. 1614. § 3123. An indorsee in due course is one who, in good faith, in the ordinary course of business, and for value, before its apparent maturity or presumptive dishonor, and Avithout knowledge of its actual dishonor, acquires a negotiable instru- ment duly indorsed to him, or indorsed generally, or payable to the bearer. Presumptive dishonor: See sec. 3133. Checlis are an exception to the rule of "after maturity": Sec. 32.5.5, subd. 2. Demand and notice: See sec. 3116. § 3124. An indorsee of a negotiable instru- ment, in due course, acquires an absolute title thereto, so that it is valid in his hands, notwith- standing any provision of law making it generally void or voidable, and notwithstanding any defect in the title of the person from whom he acquired it. Assignment, effect on defense: See Code Civ. Proc, sec. 368. §§ 3125-3131 NEGOTIABLE INSTRUMENTS. 622 Non-negotiable instruments, assignments of: Sec. 1459. Actions by assignee or indorsee: See Code Civ. Proc, sec. 368. § 3125. One wlio makes himself a party to an '.nstrument intended to be negotiable, but whicn is left wholly or partly in blank, for the purpose of idling afterward, is liable upon the instrument to an indorsee thereof in due course, in whatever manner and at whatever time it may be filled, so long as it remains negotiable in form. AKTICLE lY. PRESENTMENT FOR PAYMENT. § 3130. Effect of want of demand on principal debtor. § 3131. Presentment, how made. § 3132. Apparent maturity, when. § 3133. Presumptive dishonor of bill, payable after sight. § 3134. Apparent maturity of bill, payable at sight. § 3135. Apparent maturity of note. § 3136. Same. § 3137. Surrender of instrument, when a condition of pay- ment. § 3130. It is not necessary to make a demand of payment upon the principal debtor in a negotia- ble instrument in order to charge him; but if the instrument is by its terms payable at a specified place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to an offer of payment upon his part. Presentment of bill of exchange for acceptance: Sees. 3185 et seq. Presentment of bill of exchange for payment: Sees. 3211 et seq. Presentment in case of acceptance for honor: Sees. 3200, 3207. § 3131. Presentment of a negotiable iustru- tT23 NEGOTIABLE INSTRUMENTS. § 3131 merit for payment, when necessary, must be made as follows, as nearly as by reasonable diligence it is practicable: 1. The instrument must be presented by the holder; 2. The instrument must be presented to the principal debtor, if he can be found at the place where presentment should be made; and if not, then it must be presented to some other person having charge thereof, or employed therein, if one can be found there; 3. An instrument which specifies a place for its payment must be presented there; and if the place specified includes more than one house, then at the place of residence or business of the prin- cipal debtor, if it can be found therein; 4. An instrument which does not specify a place for its payment must be presented at the place of residence or business of the principal debtor, or wherever he may be found, at the op- tion of the presenter; and, 5. The instrument must be presented upon the day of its maturity, or, if it be payable on demand, it may be presented upon any day. It must be presented within reasonable hours; and, if it be payable at a banking house, within the usual banking hours of the vicinity, but, by the con- sent of the person to whom it should be presented, it may be presented at any hour of the day; 6. If the principal debtor have no place of busi- ness, or if his place of business or residence can* not, with reasonable diligence, be ascertained, pre- sentment for payment is excused. [Amendment approved March 30, 1874; Amendments 1873-4, p. 263. In effect July 1, 1874.] See sec. 3132, infra. Payable on demand: See sees. 3134, 3135, infra. Presentment of bills of exchange for accept- ance: See sees. 3185 et seq. &§ 3132-3135 NEGOTIABLE INSTRUMENTS. 624 Presentment of bills of exchange for payment: See sees. 3211 et seq. Bills of exchange, where payable: See sec. 3176. Reasonable diligence: Sec. 3158. § 3132. The apparent maturity of a negotiable instrument, payable at a particular time, is the day on which, by its terms, it becomes due, or when that is a holiday, the next business day. See sec. 3164, post. § 3133. A bill of exchange, payable at a cer- tain time after sight, which is not accepted within ten days after its date, in addition to the time which would suffice, with ordinary diligence, to forward it for acceptance, is presumed to have been dishonored. § 3134. The apparent maturity of a bill of ex- change payable at sight or on demand, is: 1. If it bears interest, one year after its date; or 2. If it does not bear interest, ten days after its date, in addition to the time which would suf- fice, with ordinary diligence to forward it for ac- ceptance. Mere delay in presentment does not exonerate: Sec. 3214, post. Presentment not made within the time, and not excused, exonerates drawer and in- dorsers: Id. Rule modified in case of checks: Sec. 3255, post. § 3135. The apparent maturity of a promis- sory note payable at sight or on demand, is: 1. If it bears interest, one year after its date; or, 2. If it does not bear interest, six months after its date. Section 3214. post, applies also to promissory notes: See sec. 3247. 625 NEGOTIABLP: instruments. §§ 3136-3141 Presentment not made within the time, and not excused, exonerates the indorsers: Sec. 3248, post. § 3136. Where a promissory note is payable at a certain time after sight or demand, such time is to be added to the periods mentioned in the last section. § 3137. A party to a negotiable instrument may require, as a condition concurrent to its payment by him: 1. That the instrument be surrendered to him, unless it is lost or destroyed, or the holder has other claims upon it; or, 2. If the holder has a right to retain the instru- ment and does retain it, then that a receipt for the amount paid, or an exoneration of the party pay- ing, be written thereon; or, 3. If the instrument is lost or destroyed, then that the holder give to him a bond, executed by himself and two sufficient sureties, to indemnify him against any lawful claim thereon. ARTICLE V. DISHONOR OP NEGOTIABLE INSTRUMENTS. § 3141. Dishonor, what. § 3142. Notice, by whom given. § 3143. Form of notice. § 3144. Notice, how served. § 3145. Notice, how served after indorser's death. § 3146. Notice given in ignorance of death, valid. § 3147. Notice, when to be given. § 3148. Notice of dishonor, when to be mailed. § 3149. Notice, how given by agent. S 3150. Additional time for notice by indorser. § 3151. Effect of notice of dishonor. § 3141. A negotiable instrument is dishonored, when it is either not paid, or not accepted, ac- cording to its tenor, on presentment for the pur- Civ. Code— 53 §§ 3142-3144 NEGOTIABLE INSTRUMENTS. 626 pose, or without presentment, where that is ex- cused. Presentment for payment: See sec. 3186. Dishonor of bill by nonacceptance: Sees. 3187, 3188, 3194. Damages allowed on dishonor of foreign bills* of exchange: See sees. 3234-3238. § 3142. Notice of the dishonor of a negotiable instrument may be given: 1. By a holder thereof; or, 2. By any party to the instrument who might be compelled to pay it to the holder, and who would, upon tailing it up, have a right to reim- bursement from the party to whom the notice is given. Protest of bill of exchange: See post, sec. 3225. Notice of protest: See sec. 3231, post. Notice of dishonor to acceptor for honor: See sees. 3206. 3207. § 3143. A notice of dishonor may be given in any form Avhich describes the instrument with reasonable certainty, and substantially informs the party receiving it that the instrument has been dishonored. Notice of dishonor of foreign bills of exchange: Sec. 3225. § 3144, A notice of dishonor may be given: 1. By delivering it to the party to be charged, personally at any place; or, 2. By delivering it to some person of discretion at the place of residence or business of such party, apparently acting for him; or, 3. By properly folding the' notice, directing it to the party to be charged, at his place of residence, according to the best information that the person giving the notice can obtain, depositing it in the postoffice most conveniently accessible from the 0^7 NEGOTIABLE INSTRUMENTS. §§ 3145-3149 place where the presentment was made, and pay- ing the postage thereon. Notary's protest as evidence: See cases supra, and Polit. Code, sec. 795. Foreign bills of exchange, notice of dishonor, how given: See sec. 3231. § 3145. In case of the death of a party to whom notice of dishonor should otherwise be given, the notice must be given to one of his per- sonal representatives; or, if there are none, then to any member of his family who resided with him at his death; or, if there is none, then it must be mailed to his last place of residence, as prescribed by subdivision 3 of the last section. § 3146. A notice of dishonor sent to a party af- ter his death, but in ignorance thereof, and in good faith, is valid. § 3147. Notice of dishonor, when given by the holder of an instrument or his agent, otherwise than by mail, must be given on the day of dis- honor, or on the next business day thereafter.- § 3148. When notice of dishonor is given by mail, it must be deposited in the postoffice in t.im" for the first mail which closes after noon or tne first business day succeeding the dishonor, and which leaves the place where the instrument was dishonored, for the place to which the notice should be sent. § 3149. When the holder of a negotiable in- strument, at the time of its dishonor, is a mere agent for the owner, it is suflicient for him to give notice to his principal in the same manner as to an indorser, and his principal may give notice to any other party to be charged, as if he were himself an indorser. And if an agent of the owner employs a sub-agent, it is sufRcieut for each sue- §§ 3150-3155 NEGOTIABLE INSTRUMENTS. 628 cessive agent or sub-agent to give notice in lilve manner to his own principal. § 3150. Every party to a negotiable instru- ment, receiving notice of its dishonor, has the lilie time thereafter to give similar notice to prior parties as the original holder had after its dis- honor. But this additional time is available only to the particular party entitled thereto. § 3151. A notice of the dishonor of a negotia- ble instrument, if valid in favor of the party giv- ing it, enures to the benefit of all other parties thereto whose right to give the lil^e notice has not then been lost. ARTICLE TI. EXCUSE OF PRESENTMENT AND NOTICE. § 3155. Notice of dishonor, when excused. § 3156. Presentment and notice, when excused. § 3157. Same. ii 3158. Delay, when excused. § 3159. Waiver of presentment and notice. S 3160. Waiver of protest. § 3155. Notice of dishonor is excused: 1. When the party by whom it should be given cannot, with reasonable diligence, ascertain either the place of residence or business of the party to be charged; or, 2. When there is no postoffice communication between the town of the party by whom the notice should be given and the town in which the place of residence or business of the party to be charged is situated; or, 3. When the party to be charged is the same person who dishonors the instrument; or, 4. When the notice is waived by the party en- titled thereto. See sec. 3130, ante; sec. 3159, post. o29 NEGOTIABLE INSTRUMENTS. §§ 3156-3160 Subd. 1. Reasonable diligence: See sec. 3131, subd. 6, wherein presentment is excused for the same reason. Subd. 2. Notice by mail.— It is generally held that the notice should be addressed to the post- office at or nearest to the party's residence or place of business: See sec. 3144, subd. 3. AVaiver of protest of foreign bill: Sec. 3232, post. Excuse of presentment of bill of exchange and notice: Sec. 3220. § 3156. Presentment and notice are excused as to any party to a negotiable instrument who , informs the holder, within ten days before its ma- turity, that it will be dishonored. § 3157. If, before or after the maturity of an instrument, an indorser has received full security for the amount thereof or the maimer has assigned all his estate to him as such security, presentment and notice to him are excused. § 3158. Delay in presentment, or in giving no- tice of dishonor, is excused when caused by cir- cumstances which the party delaying could not have avoided by the exercise of reasonable care and diligence. Delay in presentment for acceptance: See sec. 3219. post. Delay in presenting bill for payment: Sees. 3213. 3214. Eeasonable diligence: See sees. 3131, 3155, and note; sec. 3213. § 3159. A waiver of presentment waives notice of dishonor also, unless the contrary is expressly stipulated; but a waiver of notice does not waive presentment. § 3160. A waiver of protest on any negotiable li 3164-3165 NEGOTIABLE INSTRUMENTS. 630 instrument other than a foreign bill of exchange waives presentment and notice. Protest of foreign bills: See sees. 322.5, et seq. ARTICLE yil. EXTINCTION OF NEGOTIABLE INSTRUMENTS. § 3164. Obligation of party, when extinguished. § 3165. Revival of obligation. (Repealed.) § 3164. The obligation of a party to a nogotia ble instrument is extinguished: 1. In lil^e manner with that of parties to con- tracts in general; or, 2. By payment of the amount due upon the in- strument, at or after its maturity, in good faith and in the ordinary course of business, to any person having actual possession thereof and en- titled by its terms to payment. Extinction of obligations in general: See ante, sees. 1473 et seq. § 3165. [Repealed March 30, 1874; Amend- ments 1873-4, 264. In effect July 1, 1874.] See, however. Code Civ. Proc, sec. 440. CHAPTER II. BILLS OF EXCHANGE. Article I. Form and Interpretation, §§ 3171-3177. II. Days of Grace, § 3181. III. Presentment for Acceptance, §§ 3185-3189. IV. Acceptance, §§ 3193-3199. V. Acceptance or Payment for Honor, §§ 3203-3207. VI. Presentment for Paj'-ment, §§ 3211-3214. VII. Excuse of Presentment and Notice, §§ 3218-3220. VIII. Foreign Bills, §§ 3224-3238. '>>1 NEGOTIABLE INSTRUMENTS. §§ 3171-3175 AirncLE I. FORM AND INTERPRETATION OP A BILL. § 3171. Bill of exchange, what. J 3172. Drawee, in case of need. § 3173. Bill in parts of a set. § 3174. When must be in a set. § 3175. Presentment, etc., of part of set. § 3176. Bill, where payable. § 3177. Rights and obligations of drawer. § 3171. A bill of exchange is an instrument, negotiable in form, by which one, who is called the drawer, requests another, called the drawee, to pay a specified sum of money. § 3172. A bill of exchange may give the name of any person in addition to the drawee, to be re- sorted to in case of need. Acceptance or payment for honor: See sees. 3203 et seq. Presentment to drawee in case of need: Sec. 3188. § 3173. A bill of exchange may be drawn in any number of parts, each part stating the exist- ence of the others, and all forming one set. Damages for nonpayment of foreign bill drawn in parts: See sec. 3234. § 3174. An agreement to draw a bill of ex- change binds the drawer to execute it in three parts, if the other party to the agreement desires it. § 3175. Presentment, acceptance, or payment, of a single part in a set of a bill of exchange, is sufficient for the whole. Presentment for acceptance: See sec. 3186. Presentment to joint drawees: See sec. 3187. §§ 3173-3177 NEGOTIABLE INSTRUMENTS. 632 § 3176. A bill of exchange is payable: 1. At the place where, by its terms, it is made payable; or, 2. If it specify no place of payment, then at the place to which it is addressed; or, 3. If it be not addressed to any place, then at the place of residence or business of the drawee, or wherever he may be found. If the drawee has no place of business, or if his place of business or residence [cannot] with rea- sonable diligence be ascertained, presentment for payment is excused, and the bill may be protested for nonpayment. L Amendment approved March 30, 1874; Amendments 1873-4, p. 2(54. In effect July 1, 1874.] Negotiable instrument specifying place of pay- ment: See sees. 3130 et seq. § 3177. The rights and obligations of the drawer of a bill of exchange are the same as those of the first indorser of any other negotiable in- strument. Rights of indorser: See ante, sees. 3108 et seq., 3130 et seq., and 3141 et seq. Contract of indorser: Sec. 311 G. 633 NEGOTIABLE INSTRUMENTS. §§ 3181-3186 ARTICLE II. DAYS OF GRACE. ^ 3181. Days of grace are not allowed. § 31S1. Days of grace. ARTICLE IIL PRESENTMENT FOR ACCEPTANCE. § 3185. When a bill may be presented. § 3186. Presentment, how made. § 31S7. Presentment to joint drawees. § 31S8. When presentment to be made to drawee in case of need. 5 31S9. Presentment, when must be made. § 3185. At any time before a bill of exebauge is payable tbe bolder may present it to tbe drawee for acceptance, and if acceptance is refused, tbe bill is dislionored. Acceptance, bow made: Sees. 3193 et seq. Presentment in case of acceptance for bonor: Sees. 320(). 3207. § 3186. Presentment for acceptance must be made in tbe following manner, as nearly as by reasonable diligence it is practicable: 1. Tbe bill must be presented by tbe bolder or bis agent; 2. It must be presented on a business day. and witbin reasonable bours: 3. It must be presented to tbe drawee, or, if be be absent from bis place of residence or business, to some person baving cbarge tbereof, or employed tberein; and, 4. Tbe drawee, on sucb presentment, may post- pone bis acceptance or refusal until the next day. If tbe drawee bave no place of b^sine^5s. or if bis §§ 3187-3193 NEGOTIABLE INSTRUMENTS. 634 place of business or residence cannot, with rea- sonable diligence, be ascertained, presentment for acceptance is excused, and the bill may be pro- tested for nonacceptance. [Amendment approved March 30, 1874; Amendments 1873-4, p. 265. In effect July 1, 1874.] Presentment of part of set: See sec. 3175. Presentment for payment, generally: See sees. 3130 et seq. Presentment of bill of exchange for payment: See sees. 3211 et seq. § 3187. Presentment for acceptance to one of several joint drawees, and refusal by him, dis- penses with presentment to the others. § 3188. A bill of exchange which specifies a drawee in case of need, must be presented to him for acceptance or payment, as the case may be. before it can be treated as dishonored. Drawee in case of need: Sec. 3172. § 3189. When a bill of exchange is payable at a specified time after sight, the drawer and in- dorsers are exonerated if it is not presented for acceptance within ten days after the time which would suffice, with ordinary diligence, to forward it for acceptance, unless presentment is excused. ARTICLE IV. . ACCEPTANCE. § 3193. Acceptance, how made. § 3194. Holder entitled to acceptance on face of bill. § 3195. What acceptance sufficient with consent of holder. § 3196. Acceptance by separate instrument. § 3197. Promise to accept, when equivalent to acceptance. § 3198. Cancellation of acceptance. § 3199. What is admitted by acceptance. § 3193. An acceptance of a bill must be made in writing, by the drawee or by an acceptor for 635 NEGOTIABLE INSTRUMENTS. §§ 3194-3197 honor, and may be made by the acceptor writing his name across the face of the bill, with or with- out other words. Acceptance for honor: See sec. 3203. § 3194. The holder of a bill of exchange, if en- titled to an acceptance thereof, may treat the bill as dishonored if the drawee refuses to write across its face an unqualified acceptance. Acceptance on separate paper: See sees. 3194, 3195. § 3195. The holder of a bill of exchange may, without prejudice to his rights against prior par- ties, receive and treat as a sufficient acceptance: 1. An acceptance written upon any part of the bill, or upon a separate paper; 2. An acceptance qualified so far only as to make the bill payable at a particular place within the city or town In which, if the acceptance was unqualified, it would be payable; or, 3. A refusal by the drawee to return the bill to the holder after presentment, in which case the bill is payable immediately, without regard to its terms. Acceptance on separate paper: See, also, next section. Acceptance, generally: Sec. 3193. § 3196. The acceptance of a bill of exchange, by a separate instrument, binds the acce])tor to one, who, upon the faith thereof, has the bill for value or other good consideration. § 3197. An unconditional promise, in writing, to accept a bill of exchange, is a sufficient accept- ance thereof, in favor of every person who upon the faith thereof has taken the bill for value or other good consideration. §§ 3198-3204 NEGOTIABLE INSTRUMENTS. 636 § 3198. The acceptor of a bill of exchange may cancel his acceptance at any time before deliver- ing the bill to the holder, and before the holder has, with the consent of the acceptor, transferred his title to another person who has given value for it upon the faith of such acceptance. § 3199. The acceptance of a bill of exchange admits the signature of a drawer, but does not admit the signature of any indorser to be genuine. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 2G5. In effect July 1, 1874.] Genuineness of signature warranted by indorser: See sec. 3116. subd. 3. ARTICLE V. ACCEPTANCE OR PAYMENT FOR HONOR. § 3203. When bill may be accepted or paid for honor. § 3204. Holder of bill of exchange bound to accept payment for honor. § 3205. Acceptance for honor, how made. § 3206. How enforced. § 3207. Notice of dishonor not excused by acceptance for honor, § 3203. On the dishonor of a bill of exchange by the drawee, and, in case of a foreign bill, after it has been duly protested, it may be accepted or paid by any person, for the honor of any party thereto. Drawee in case of need: See sec. 3172. Payment of foreign bill for honor: See sec. 3233. Acceptor for honor is in effect the maker of a promissory note: Sec. 3246. § 3204. The holder of a bill of exchange is not bound to allow it to be accepted for honor, but is bound to accept payment for honor. Acceptance, how made: See sees. 3193 et seq. Acceptance for honor, how made: Sec. 3205. 637 NEGOTIABLE INSTRUMENTS. §§ 3205-3207 § 3205. An acceptor or payor for honor must write a memorandum upon the bill, stating therein for Tvhose honor lie accepts or pays, and must give notice to such parties, with reasonable dili- gence, of the fact of such acceptance or payment. Having done so, he is entitled to reimbursement from such parties, and from all parties prior to them. Acceptance, how made generally: See sees. 3193 et sea- Reimbursement.— In case of foreign bills of ex- change, the one who pays for honor must declare in the presence of a person authorized to malie protest for whose honor he pays the same: Sec. 3283. § 3206. A bill of exchange which has been ac- cepted for honor must be presented at its maturity to the drawee for payment, and notice of its dis- honor by him must be given to the acceptor for honor, in like manner as to an indorser, after which the acceptor for honor must pay the bill. Presentment for acceptance: See sec. 3186. Presentment of bill of exchange for payment: See sees. 3211 et sea. Presentment of negotiable instruments general- ly: Sees. 3130 et sea. Notice of dishonor of foreign bill: See sees. 3225 et sea. Notice of dishonor generally: See sees. 3142 et seq. § 3207. The acceptance of a bill of exchange for honor does not excuse the holder from giv- ing notice of its dishonor by the drawee. Presentment of bill of exchange and notice, when excused: See sees. 3218-3220. Excuse of presentment and notice generally: Sees. 3155 et sea. Civ. Code— 54 §§ 3211-3213 NEGOTIABLE INSTRUMENTS. 638 Notice of dishonor: See see. 3231 for the giving notice of protest, and sections 3142 et seq. for the manner of giving notice of dishonor generally. ARTICLE YI. PRESENTMENT FOR PAYMENT. § 3211. Presentment, when bill not accepted, where made. § 3212. Presentment of bill, payable at particular place. § 3213. Effect of delay in presentment, in certain cases. § 3214. Effect in other cases. § 3211. If a bill of exchange is by its terms payable at a particular place, and is not accepted on presentment, it must be presented at the same place for payment, when presentment for pay- ment is necessary. Presentment of negotiable instruments for pay- ment: See sees. 3130 et sea. Presentment for acceptance: See sees. 3186 et sea. § 3212. A bill of exchange, accepted payable at a particular i)lace, must be presented at that place for payment, when presentment for payment is necessary, and need not be presented elsewhere. Place of payment, presentment at: See sec. 3131, subd. 3. § 3213. If a bill of exchange, payable at sight or on demand, without interest, is not duly pre- sented for payment within ten days after the time in which it could, with reasonable diligence, be transmitted to the proper place for such pre- sentment, the drawer and indorsers are exoner- ated, unless such presentment is excused. See, also, generally sees. 3131, 3155. Apparent maturity of bill of exchange: See sec. 3134, ante. 639 NEGOTIABLE INSTRUMENTS. §§ 3214-3220 § 3214. Mere delay in presenting a bill of ex- change payable with interest, at sight or on de- mand, does not exonerate any party thereto. Delay, when excused: See sec. 3158, ante, and sec. 3219. post. ARTICLE YII. EXCUSE OF PRESENTMENT AND NOTICE. § 3218. Presentment, when excused. § 3219. Delay, when excused. § 3220. Presentment and notice, when excused. § 3218. The presentment of a bill of exchange for acceptance is excused if the drawee has not capacity to accept it. Excuse of presentment and notice, generally: See sees. 3155 et sea., ante. Delay in presentment of check: Sec. 3255. § 3219. Delay in the presentment of a bill of exchange for acceptance is excused, when caused by circumstances over which the holder has no control. Delay, when excused: See sees. 3158, 3214, ante. § 3220. Presentment of a bill of exchange for acceptance or payment, and notice of its dishonor, are excused as to the drawer, if he forbids the drawee to accept, or the acceptor to pay the bill; or, if, at the time of drawing, he had no reason to believe that the drawee would accept or pay the same. §§ 3224-3227 NEGOTIABLE INSTRUMENTS. 640 ARTICLE VIII. FOREIGN BILLS. I 3224. Definitions. § 3225. Protest necessary. § 3226. Protest, by whom made. § 3227. Protest, how made. § 3228, Protest, where made. § 3229. Protest, when to be made. § 3230. Protest, when excused. § 3231. Notice of protest, how given. § 3232. Waiver of protest. § 3233. Declaration before payment for honor. § 3234. Damages allowed on dishonor of foreign bill. § 3235. Rate of damages. § 3236. Interest on amount of protested bill. § 3237. Damages, how estimated. § 3238. Same. § 3224. An inland bill of exchange is one dra^'n and payable within this State. All others are foreign. Form and interpretation of bills of exchange: See sec. 3171. § 3225. Notice of the dishonor of a foreign bill of exchange can be given only by notice of its protest. Dishonor of negotiable instruments generally: See sees. 3141 et seq., ante. Waiver of protest does not waive presentment and notice in the case of a foreign bill of ex- change: Sec. 3160, ante. § 3226. Protest must be made by a notary pub- lic, if with reasonable diligence one can be ob- tained; and if not, then by any reputable person in the presence of two witnesses. § 3227. Protest must be made by an instru- ment in writing, giving a literal copy of the bill of exchange, with all that is written thereon, or 641 NEGOTIABLE INSTRUMENTS. §§ 3228-3232 annexing- the original; stating the presentment, and the manner in whicli it was made; the pres- ence or absence of the drawee or acceptor, as the case may be; the refusal to accept or to pay, or the inability of the drawee to give a binding ac- ceptance; and in case of refusal, the reason as- signed, if any; and, finally, protesting against all the parties to be charged. § 3228. A protest for nonacceptance must be made in the city or town in wliich the bill is pre- sented for acceptance, and a protest for nonpay- ment in the city or town in which it is presented for payment. § 3229. A protest must be noted on the day of presentment, or on the next business day; but it may be wi'itten out at any time thereafter. § 3230. The want of a protest of a foreign bill of exchange, or delay in mailing the same, is ex- cused in lil^e cases with the want or delay of pre- sentment. Excuse of presentment and notice: See sees. 3218 Gt sea., 3214. § 3231. Notice of protest must be given in the same manner as notice of dishonor, except that it may be given by the notarv who makes the pro- test. Notice of dishonor, how given: See ante, sees. 3142 et sea. Notice of dishonor, by whom given: Sec. 3142, ante. § 3232. If a foreign bill of exchange on its face waives protest, notice of dishonor may be given to any party thereto, in lilce manner as of an in- land bill; except that if any indorser of such a bill expressly requires protest to be made, bv §§ 3233-3235 NEGOTIABLE INSTRUMENTS. 642 a direction written on the bill at or before his indorsement, protest must be made, and notice thereof given to him and to all subsequent in- dorsers. Notice of dishonor: See sees. 3142 et seq. Waiver of notice: See sec. 3155, subd. 4. § 3233. One who pays a foreign bill of ex- change for honor must declare, before payment, in the presence of a person authorized to malie pro- test, for whose honor he pays the same, in order to entitle him to reimbursement. Payment for honor: See sec. 3203. § 3234. Damages are allowed as hereinafter prescribed, as a full compensation for interest ac- crued before notice of dishonor, re-exchange, ex- penses, and all other damages, in favor of holders for value only, upon bills of exchange drawn or negotiated within this State, and protested for nonacceptance or nonpayment. § 3235. Damages are allowed under the last section upon bills drawn upon any person: 1. If drawn upon any person in this State, two dollars upon each one hundred dollars of the prin- cipal sum specified in the bill; 2. If drawn upon any person out of this State, but in any of the other States west of the Rocky Mountains, five dollars upon each hundred dollars of the principal sum specified in the bill; 3. If drawn upon any person in any of the United States east of the Rocky Mountains, ten dollars upon each hundred dollars of the principal sum specified in the bill; 4. If drawn upon any person in any place in a foreign countrj^ fifteen dollars upon each hun- dred dollars of the principal sum specified in the bill. 643 NEGOTIABLE INSTRUMENTS. §§ 3236-3245 § 3236. P'rom the time of notice of dishonor and demand of payment, lawful interest must be allowed upon the aggregate amount of the princi- pal sum specified in the bill, and the damages mentioned in the preceding section. § 3237. If the amount of a protested bill of ex- change is expressed in money of the United States, damages are estimated upon such amount without regard to the rate of exchange. § 3238. If the amount of a protested bill of ex- change is expressed in foreign money, damages are estimated upon the value of a similar bill at the time of protest, in the place nearest to the place where the bill was negotiated and where such bills are currently sold. CHAPTER III. PROMISSORY NOTES. § 3244. Promissory note, what. § 3245. Certain instrum'ents promissory notes. § 3246. Bill of exchange, when converted into a note. § 3247. Certain sections applicable to notes. § 3248. Effect of delay in presentment. § 3244. A promissory note is an Instrument, negotiable in form, whereby the signer promises to pay a specified sum of money. Place of payment not specified: See ante, sec. 3100. Interpretation of negotiable instruments gener- ally: See sees. 3099 et sea. § 3245. An instrument in the form of a bill of exchange, but drawn upon and accepted by the drawer himself, is to be deemed a promissory note. Negotiable instrument payable to order of maker: See ante, sec. 8102. §§ 3246-3255 NEGOTIABLE INSTRUMENTS. 644 § 3246. A bill of excliange, if accepted, with the consent of the owner, by a person other than the drawee, or an acceptor for honor, becomes in effect the promissory note of such person, and all prior parties thereto are exonerated. Acceptor for honor: See sees. 3203 et seq. § 3247. Chapter I. of this title, and sections 3181 and 3214 of this Code, apply to promissory notes. Chapter I of this title: See sees. 3086-3165. § 3248. If a promissory note, payable on de- mand, or at sight, without interest, is not duly presented for payment within six months from its date, the indorsers thereof are exonerated, un- less such presentment is excused. Apparent maturity of a promissory note: See sec. 3135. Presentment, when excused: See, generally, sees. 3155 et sea. CHAPTER lY. CHECKS. § 3254. Check, what. § 3255. Rules applicable to checks. § 3254. A check is a bill of exchange drawn upon a banli or banker, or a person described as such upon the face thereof, and payable on de- mand, without interest. § 3255. A check is subject to all the provisions of this Code concerning bills of exchange, except that: 1. The drawer and indorsers are exonerated by delay in presentment, only to the extent of the in- jury which they suffer thereby; 2. An indorsee, after its apparent maturity, but t)1.5 GENERAL PROVISIONS. §§ 3261-3268 without actual notice of its dishonor, acquires a title equal to that of an indorsee before such period. Delay in presentment of bills of exchange: See sees. 3218-3220. Indorsee in due course: Sec. 3123, ante. CHAPTER V. BONDS, BANK NOTES, AND CERTIFICATES OF DE- POSIT. § 3261. Bank note negotiable after payment. § 3262. Title acquired by indorsee. (Repealed.) § 3261. A bank note remains negotiable, even after it has been paid by the maker. § 3262. [Repealed March 30, 1874: Amend- ments 1873-4, 265. In effect July 1, 1874.] TITLE XVI. GENERAL PROVISIONS. § 3268. Parties may waive provisions of Code. § 3268. Except where it is otherwise declared, the provisions of the foregoing fifteen titles of this part, in respect to the rights and obligations of parties to contracts, are subordinate to the inten- tion of the parties, when ascertained in the man- ner prescribed by the Chapter on the Interpreta- tion of Contracts; and the benefit thereof may be waived by any party entitled thereto, unless such waiver would be against public policy. Interpretation of contracts: See ante. sec. MVAr^ ontract: Sees. 3300 et seq. § 3282. Detriment is a loss or harm suffered in person or property. § 3283. Damages may be awarded, in a judi- cial proceeding, for detriment resulting after the commencement thereof or certain to result in the future. ARTICLE IL INTEREST AS DAMAGES. § 3287. Person entitled to recover damages may recover interest ttiereon. § 3288. In actions other than contract. § 3289. Limit of rate by contract. § 3290. Acceptance of principal waives claim to interest. § 3287. Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, ex- cept during such time as the debtor is prevented by law, or by the act of the creditor, from pay- ing the debt. As to what is legal rate: See sec. 1917, ante. Interest in actions for conversion: See sec. 3336. § 3288. In an action for the breach of an obli- gation not arising from contract, and in every case §§ 3289-3294. COMPENSATORY RELIEF. 6.52 of oppression, fraud, or malice, interest may be given, in the discretion of the jury. Interest in trover and conversion: See sec. 3336. § 3289. Any legal rate of Interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is super- seded by a verdict or other new obligation. § 3290. Accepting payment of the whole prin- cipal, as such, waives all claim to interest. ARTICLE HI. EXEMPLARY DAMAGES. § 3294. Exemplary damages, in what cases allowed. § 3294. In any action for the breach of an obli- gation not arising from contract, where the de- fendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the de- fendant. Damages for wrongs, generally: See sees. 3333, post, et seq. Penal damages: See post, sees. 3344 et seq. 653 COMPENSATORY RELIEF. § 3300 CHAPTEll II. MEASURE OF DAilAGES. Article I. Damages for Breach of Contract, §§ 3300-3319. II. Damages for Wronprs, §§ 3333-3340. III. Penal Damages, §§ 3'344-3248. IV. General Provisions, §§ 3353-3360. ARTICLE I. DAMAGES FOR BREACPI OF CONTRACT. § 3300. Measure of damages for breach or contract. § 3301. Damages must be certain. § 3302. Breach of contract to pay liquidated sum. § 3303. Dishonor of foreign bills of exchange. § 3304. Detriment caused by breach of covenant of seisin, &c., what is. § 3305. Detriment caused by breach of covenant against in- cumbrances, is what. § 3306. Breach of agreement to convey real property. f 3307. Breach of agreement to buy real property. § 3308. Breach of agreement to sell personal property not paid for. § 3309. Breach of agreement to sell personal property paid for. § 3310. Breach of agreement to pay for personal property sold. § 3311. Breach of agreement to buy personal property. § 3312. Breach of warranty of title to personal property. § 3313. Breach of warranty of quality of personal property. § 3314. Breach of warranty of quality for special purpose. § 3315. Breach of carrier's obligation to receive goods, &c. § 3316. Breach of carrier's obligation to deliver. § 3317. Carrier's delay. § 3318. Breach of warranty of authority. § 3319. Breach of promise of marriage. § 3300. For the breach of an obligation arising from contract, the measure of damages, except where otherAvise expressly provided by this Code, is the amount which will compensate the party ag- grieved for all the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom. §§ 3301-3304 COMPENSATORY RELIEF. 654 [Amendment approved March 30, 1874; Amend- ments 1ST3-4, p. 265. In effect July 1, 1874.] Note.— Original section contained this qualifying clause, introduced after "thereby:" "Which the I)arty in fault had notice, at the time of entering into the contract, or at any time before the breach and while it was in his power to perform the con- tract upon his part, would be lil^ely to result from such breach." This clause, omitted by the code examiners, distinguished the measure of damages in cases of breach of contract from that adopted in actions for torts in the particular of knowledge of the damage that would result: See sec. 3333. As to damages revoking submission to arbitra- tion, see sec. 1290, Code Civ. Proc. § 3301. No damages can be recovered for a ^ breach of contract which are not clearly ascer- tainable in both their nature and origin. § 3302. The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon. § 3303. For the dishonor of foreign bills of ex- change the damages are prescribed by sections 3235, 3237, and 3238. § 3304. The detriment caused by the breach of a covenant of "seizin," of "right to convey," of "warranty," or of "quiet enjoyment," in a grant of an estate in real property, is deemed to be: 1. The price paid to the grantor; or, if the breach is partial onlj% such proportion of the price as the value of the property affected by the breach bore at the time of the grant to the value of the Avhole property'; 2. Interest thereon for the time during which 655 COMPENSATORY RELIEF. §§ 3305-330S the grautee derived uo beuelit from the property, not exceeding five years: 3. Any expenses properly incurred by the cove- nantee in defending his possession. § 3305. The detriment caused by the breach of a covenant against encumbrances, in a grant of an estate in real property, is deemed to be the amount which has been actually expended by the covenantee in extinguishing either the principal or interest thereof, not exceeding in the former case a proportion of the price paid to the grantor equivalent to the relative value at the time of the grant of the property affected by the breach, as compared with the whole, or, in the latter case, interest on a like amount. § 3306. The detriment caused by the breach of an agreement to convey an estate in real prop- erty is deemed to be the price paid, and the ex- penses properly incurred in examining the title and preparing the necessary papers, with interest thereon; but adding thereto, in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses prop- erly incurred in preparing to enter upon the land. § 3307. a'he detriment caused by the breach of an agreement to purchase an estate in real prop- erty is deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him. § 3308. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has not been fully paid in ad- vance, is deemed to be the excess, if any, of the vrdue of the property to the buyer, over the §§ 3309-3313 COMPENSATORY RELIEF. 656 amount wliicli would have been due to the seller under the contract, if it had been fulfilled. § 3309. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has been fully paid to him in advance, is deemed to be the same as in case of wrongful conversion. Conversion, measure of damages for: Sec. 3336. § 3310. The detriment caused by the breach of a buyer's agreement to accept and pay for per- sonal property, the title of which is vested in him, is deemed to be the contract price. § 3311. The detriment caused by the breach of a buyer's agreement to accept and pay for per- sonal property, the title to which is not vested in him, is deemed to be: 1. If the property has been resold, pursuant to section 3049, the excess, if any, of the amount due from the buyer, under the contract, over the net proceeds of the resale; or. 2. If the property has not been resold in the manner prescribed by section 3049, the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller, together with the excess, if any, of the expenses properly incurred in carrying the property to marl^et, over those which would have been incurred for the carriage thereof, if the buyer had accepted it. § 3312. The detriment caused by the breach of a warranty of the title of personal property sold is deemed to be the value thereof to the buyer, when lie is deprived of its possession, together with any costs which he has become liable to pay in an ac- tion brought for the property by the true owner. § 3313. The detriment caused by the breach of 657 COMPENSATORY RELIEF. §§ 3314-3317 a Trarranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been <3omplied with, over its actual value at that time. § 3314. The detriment caused by the breach of a warranty of the fitness of an article of personal property for a particular purpose is deemed to be that which is defined by the last section, together with a fair compensation for the loss incurred by an effort in good faith to use it for such pur- pose. § 3315. The detriment caused by the breach of a carrier's obligation to accept freight, rnessages, or passengers is deemed to be the difference be- tween the amount which he had a right to charge for the carriage and the amount which it would be necessary to pay for the same service when it ought to be performed. Obligation to receive freight: Sec. 2169. § 3316. The detriment caused by the breach of a carrier's obligation to deliver freight, where he has not converted it to his own use, is deemed to be the value thereof at the place and on the day at which it should have been delivered, de- ducting the freightage to which he would have been entitled if he had completed the delivery. Delivery of property by carrier: See ante, sees. 2118, 2119. Stoppage in transitu: See ante, sees. 3076 et seq. § 3317. The detriment caused by a carrier's de- lay in the delivery of freight is deemed to be the depreciation in the intrinsic value of the freight during the delay, and also the depreciation, if any, in the marliet value thereof, otherwise than by reason of a depreciation in its intrinsic value, at §§ 3318-3333 COMPENSATORY RELIEF. 658 the place where it ought to have been delivered, and between the day at which it ought to have been delivered and the day of its actual delivery. Carrier's liability for delay: See ante, sec. 2196. § 3318. The detriment caused by the breach of a warranty of an agent's authority is deemed to be the amount which could have been recovered and collected from his principal if the warranty had been complied with, and the reasonable ex- penses of legal proceedings taken, in good faith, to enforce the act of the agent against his prin- cipal. Warranty of authority by one assuming to act as agent: See ante, sec. 2342. § 3319. The damages for the breach of a prom- ise of marriage rest in the sound discretion of the jury. ARTICLE II. DAMAGES FOR WRONGS. § 3333. Breach of obligation other than contract. § 3334. Wrongful occupation of real property. § 3335. Willful holding over. § 3333. Conversion of personal property. § 3337. Same. § 3338. Damages of lienor. § 3339. Seduction. § 3340. Injuries to animals. § 3341. Same. § 3333. For the breach of an obligation not arising from contract, the measure of damages, ex- cept where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. Sec. 1840, ante. Officer seizing mortgaged chattel: See sec. 29G9. 659 COMPENSATORY RELIEF. §§ 3334-3337 § 3334. The detriment caused by the wrongful occupation of real property, in cases not embraced in sections 3335, 3344, and 3345 of this Code, or section 1174 of the Code of Civil Procedure, is deemed to he the value of the use of the property for the time of such occupation, not exceeding five years next preceding the commencement of the action or proceeding to enforce the right to damages, and the costs, if any, of recovering the possession. § 3335. For willfully holding over real prop- erty, by a person who entered upon the same, as guardian or trustee for an infant, or by right of an estate terminable with any life or lives, after the termination of the trust or particular estate, with- otit the consent of the party immediately entitled after such termination, the measure of damages is the value of the profits received during such liolding over. Termination of trustees' estate: See sec. 871. § 3336. The detriment caused by the wrongful conversion of personal property is presumed to be: 1. The value of the property at the time of the conversion, with the interest from that time; or, where the action has been prosecuted with reason- able diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and, 2. A fair compensation for the time and money properly expended in pursuit of the property. [Amendment approved January 22, 1878; Amend- ments 1877-§, p. 89. In effect January 22, 1878.] Nondelivery of chattel sold and paid for a con- version: Sec. 3309. § 3337. The presumption declared by the last section can not be repelled, in favor of one whose §§ 3338-3341 COMPENSATORY RELIEF. 660 possession was wrongful from the beginning, by his subsequent application of the property to the benefit of the owner, without his consent. § 3338. One having a mere lien on personal property cannot recover greater damages for its conversion, from one having a right thereto su- perior to his, after his lien is discharged, than the amount secured by the lien, and the compen- sation allowed by section 3336 for loss of time and expenses. Damage for conversion of personalty, generally: Sec. 3336. Levy on mortgaged chattel: See as to duty of officer, sec. 2969. ante. § 3339. The damages for seduction rest in the sound discretion of the jury. Seduction, action by unmarried female: Code Civ. Proc. sec. 374. Seduction, actions by parent or guardian: Code Civ. Proc sec. 375. § 3340. For Avrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard or humanity, exem- plary damages may be given. Dogs are Property, Penal Code, sec. 491; Injury to. Penal Code, sec. 597. Exemplary damages, generally: See sec. 3294. § 3341. The owner, possessor, or harborer of any dog or other animal that shall kill, worry, or wound any sheep, Angora or Cashmere goats, shall be liable to the owner of the same for the damages and costs of suit, to be reco'^ered before any court of competent jurisdiction: 1. In the prosecution of actions under the provisions of this chapter, it shall not be necessary for the plaintiff to show that the owner, possessor. 661 COMPENSATORY RELIEF. §§ 3344-3345 or harborer of such dog or other animal had knowledge of the fact that such dog or other ani- mal Tvould kill or wound sheep or goats. 2. Any person on finding any dog or dogs not on the premises of its owner or possessor worry- ing, wounding, or killing any sheep, Angora, or Cashmere goats, may, at the time of so finding said dog or dogs, kill the same, and the owner or owners thereof shall sustain no action for dam- ages against any person so li:illing such dog or dogs. [New section approved March 13, 1883; Stats. 1883, p. 283. Approved March 13, 1883.] ARTICLE III. PENAL DAMAGES. § 3344. Failure to quit, after notice. § 3345. Tenant willfully holding over. § 3346. Injuries to trees, fcc. § 3347. Injuries inflicted iu a duel. 5 3348. Same. § 3344. If any tenant give notice of his inten- tion to quit the premises, and does not deliver up the possession at the time specified in the no- tice, he must pay to the landlord treble rent dur- ing the time he continues in possession after such notice. Service of notice: Code Civ. Proc, sec. 1162. § 3345. If any tenant, or any person in collu- sion Avith the tenant, holds over any lands or ten- ements after demand made and one month's no- tice, in writing given, requiring the possession thereof, such person holding over must pay to the landlord treble rent during the time he continues in possession after such notice. Damages for unlawful detainer: See Code Civ. Proc, sees. 1174 et seq.; Id., sec. 735. Civ. Code— 56 §§ 3346-3348 COMPENSATORY RELIEF. 662 § 3346. For wrongful injuries to timber, trees, or underwood upon the land of another, or re- moval thereof, the measure of damages is three times such a sum as would compensate for the ac- tual detriment, except where the trespass was casual and involuntary, or committed under the belief that the land belonged to the trespasser, or where the wood was fallen by the authority of highway officers for the purposes of a highway; in which cases the damages are a sum equal to the actual detriment. Trespass for cutting down and carrying away trees: See, also, sec. 735, Code Civ. Proc. § 3347. If any ilerson slays or permanently disables another person in a duel in this State, tlie slayer must provide for the maintenance of the widow or wife of the person slain or perma- nently disabled, and for the minor children, in such manner and at such cost, either by aggre- gate compensation in damages to each, or by a monthly, quarterly, or annual allowance, to be determined by the court. Duels and Challenges: See Penal Code, sees. 225- 232. Note.— Section is based on Stats. 1855, p. 152. Article 20, section 2. of our State constitution, pro- hibits any one who fights, or acts as second, or knowingly aids or assists one who fights a duel or sends a challenge to fight a duel, from holding any office of profit or trust: See, also, Pen. Code, sees. 225. 232. § 3348. If any person slays or permanently disables another person in a duel in this State, the slayer is liable for and must pay all debts of the person slain or permanently disabled. 663 COMPENSATORY RELIEF. §§ 3353-3355 ARTICLE IV. GENERAL PROVISIONS. § 3353. Value, how estimated in favor of seller. § 3354. Value, how estimated in favor of buyer. § 3355. Property of peculiar value. § 3356. Value of thing in action. § 3357. Damages allowed in this chapter, exclusive of others. § 3358. Limitation of damages. § 3359. Damages to be reasonable. § 3360. Nominal damages. § 3353. In estimating damages, the value of property to a seller thereof is deemed to be the price Tvbich he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would hare sufficed, with reasonable diligence, for the seller to effect a resale. § 3354. In estimating damages, except as pro- vided by sections 3355 and 33.56, the value of prop- erty, to a buyer or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded as would suffice, with reasonable diligence, for him to make such a purchase. § 3355. Where certain property has a peculiar value to a person recovering damages for depriva- tiou thereof, or injury thereto, that may be deem- ed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer. §§ 3356-3360 COMPENSATORY RELIEF. 664 § 3356. For the purpose of estimating dam- ages, tlie value of an instrument in writing is pre- sumed to be equal to that of the property to which it entitles its owner. [Amendment approved March 30, 1874; Amendments 1873-4, p. 266. In effect July 1, 1874.] § 3357. The damages prescribed by this chap- ter are exclusive of exemplary damages and in- terest, except where those are expressly men- tioned. Exemplary damages: See sec. 3294.— Interest, see sees. 3287-3290. § 3358. Notwithstanding the provisions of this chapter, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases specified in the articles on Exemplary Damages and Penal Damages, and in sections 3319, 3339, and 3340. Exemplary damages: Sec. 3294. Penal damages: Sees. 3344-3348. able, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial jus- tice, no more than reasonable damages can be recovered. Liquidated damages and penalty: See sees. 1670, 1671, ante. § 3360. When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages. fi65 SPECIFIC AND PREVENTIVE RELIEF. §§ 3336, 3367 TITLE III. SPECIFIC AND PREVENTIVE RELIEF. Chapter I. General PriDciples, §§ 33G6-3369. II. Specific Relief. §§ 3375-3414. III. PreventiTe Relief, §§ 3420-3423. CHAPTER I. GENERAL PRINCIPLES. § 3366. Specific relief, &o., when allowed. § 3367. Specific relief, how given. § 3368. Preventive relief, how given. § 33^69. Not to enforce penalty, &c. § 3366. Specific or preventive relief may be given in the cases specified in this title and in no others. Possession of real property: Sees. 3375 et seq. Possession of personal property: Sees. 3379 et sea. Specific performance of obligations: Sees. 3384 et seq. Revision of contracts: Sees. 3399 et seq. Rescission of contracts: Sees. 3406 et seq. Cancellation of instruments: Sees. 3412 et seq. Injunctions: See sees. 4320 et seq. § 3367. Specific relief is given: 1. By taking possession of a thing, and deliver- ing it to a claimant; 2. By compelling a party himself to do that which ought to be done; or, 3. By declaring and determining the rights of parties, otherwise than by an award of damages. Note.— What is knoAvn as the specific-contract act in this State (embodied in section 667 [sec. 200], Code Civ. Proc. Cal.^ has given rise to so many §§ 3:6S, 3369 SPECIFIC AND PREVENTIVE RELIEF. 665 actions and decisions of our supreme court on the subject of specific relief, wherein the Avhole ques- tion is discussed, that it is unnecessary to refer to other authorities: See sees, 1083-1097, writ of mandate. Code Civ. Proc; see also titles "Lien," "Contesting- Elections," "Discharge of Persons Imprisoned on Civil Process," "Forcible Entry and Detainer," "Proceedings Supplementary to Execu- tion," etc.. Code Civ. Proc. Cal. See sees. 3375 et seq., for classification of the instances in which specific relief is given. § 3368. Preventive relief is given by prohibit- ing a party from doing that which ought not to be done. Injunction: See sees. 525-533, Code Civ. Proc. , I'rohlbition: See sees. 1102-1105, Code Civ. Proc. Preventive relief generally: See sec. 3420, et seq. post. AYhile sec. 3420 says that "preventive relief is granted by injunction, provisional or final," the Code Commissioners say, citing that section, that "the Code of Civil Procedure provides other reme- dies," and refers to writs of prohibition, certiorari, and proceedings for contempt. Certiorari: See sec. 1072, Code Civ. Proc. Contempt: See sees. 1209-1222, Code Civ. Proc. § 3369. Neither specific nor preventive relief can be granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or for- feiture in any case. »J67 SPECIFIC AND PREVENTIVE RELIEF. §§ 3375, 3379 CHAPTER 11. SPECIFIC RELIEF. Article I. Possession of Real Property, § 3375. II. Possession of Personal Property, §§ 3379-3380. III. Specific Performance of Obligations, §§ 3384-3395. IV. Revision of Contracts, §§ 33&9-3402. V. Rescission of Contracts, §§ 3403-3408. VI. Cancellation of Instruments, §§ 3412-3414. ARTICLE I. POSSESSION OF REAL PROPERTY. § 3375. Judgment for possession or title. § 3375. A person entitled to specific real prop- erty, by reason eitlier of a perfected title or of a claim to title Ti'bich ought to be perfected, may recover the same in the manner prescribed by the Code of Civil Procedure, either by a judgment for its possession, to be executed by the sheriff, or by a judgment requiring the other party to perfect the title and to deliver possession of the property. Actions concerning real estate: See Code Civ. Proc, sees. 738-748. Writ of restitution: See Code Civ. Proc. sec. 0.1)7. Specific enforcement of contract to convey realty: See sec. 3384. ARTICLE II. POSSESSION OF PERSONAL PROPERTY. § 3379. Judgment for delivery. § 3380. When holder may be compelled to deliver. § 3379. A person entitled to the immediate pos- session of specific personal property may recover §§ 3380, 3384 SPECIFIC AND PREVENTIVE RELIEF. 668 the same in the manner provided by the Code of Civil Procedure. Claim and delivery: Code Civ. Proc, sees. 509- 520. Breach of agreement to transfer personalty may be compensated in damages: See sec. 3387. § 3380. Any person having the possession or control of a particular article of personal property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession. [Amendment approved March 30, 1874; Amendments 1873-4, 266. In effect July 1. 1874.] Breach of agreement to transfer personalty: See sec. 3387. ARTICLE III. SPECIFIC PERFORMANCE OF OBLIGATIONS. § 3384. In what cases compelled. § 3385. Remedy mutual. (Repealed.) § 3386. No remedy unless mutual. § 3387. Distinction between real and personal property. § 3388. Contract signed by one party only may be enforced by other. § 3389. Liquidation of damages not a bar to specific per- formance. § 3390. What cannot be specifically enforced. § 3391. What parties cannot be compelled to perform. § 3392. What parties cannot have specific performance in their favor. § 3393. Specific performance not required when oppressive. (Repealed.) § 3394. Agreement to sell property by one who has no title. § 3395. Relief against parties claiming under person bound to perform. § 3384. Except as otherwise provided in this article, specific performance of an obligation may be compelled. [Amendment approved March 30, 1874; Amendments 1873-4, 266. In effect July 1, 1874.] 669 SPECIFIC AND PREVENTIVE RELIEF. §§ 3385-3390 See sec. 3390, subd. 6, and sec. 3392, post. Specifically enforcing revised contract: See sec. 3402. § 3385. [Repealed. In effect .July 1, 1874.] § 3386. Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compel- lable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance. Performance by parties seeliing execution: Com- pare also with sec. 3302. § 3387. It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation, and that the breach of an agreement to transfer personal property can be thus relieved. § 3388. A party who has signed a written con- tract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part, and the case is otherwise proper for en- forcing specific performance. § 3389. A contract otherwise proper to be spe- cifically enforced may be thus enforced, though a penalty is imposed, or the damages are liqui- dated for its breach, and the party in default is willing to pay the same. § 3390. The following obligations cannot be specifically enforced : 1. An obligation to render personal service; 2. An obligation to employ another in personal service; §§ 3391, 3392 SPECIFIC AND PREVENTIVE RELIEF. b70 3. An agreement to submit a controversy to ar- bitration; 4. An agreement to perform an act which the party has not power lawfully to perform when required to do so; 5. An agreement to procure the act or consent of the wife of the contracting party, or of any other third person; or, 6. An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable. § 3391. Specific performance cannot be en- forced against a party to a contract in any of the following cases: 1. If he has not received an adequate consider- ation for the contract; 2. If it is not, as to him, just and reasonable; 3. If his assent was obtained by the misrepre- sentation, concealment, circumvention, or unfair practices of any party to whom performance would become due under the contract, or by any promise of such party which has not been substan- tially fulfilled; or. 4. If his assent was given under the influence of mistake, misapprehension, or surprise, except that where the contract provides for compensa- tion in case of mistake, a mistake within the scope of such provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced. § 3392. Specific performance cannot be en- forced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, ex- cept where his failure to perform is only partial, and either entirely immaterial or capable of being fully compensated, in which case specific perform- 671 SPECIFIC AND PREVENTIVE RELIEF. §§ 3393-339» auce may be compelled, upou full compensation being made for the default. § 3393. [Kepealed March 30, 1874; Amend- ments 1S73-4, 2G7. In effect July 1, 1874.] § 3394. An agreement for tke sale of property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from rea- sonable doubt. § 3395. Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in lilie man- ner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by con- veying all his estate to the person entitled to en- force the obligation. ■J ARTICLE IV. REVISION OF CONTRACTS. § 3399. When contract may be revised. § 3400. Presumption as to intent of parties. § 3401. Principles of revision. § 3402. Enforcement of revised contract. § 3399. When, through fraud or a mutual mis- take of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the inten- tion of the parties, it may be revised on the ap- plication of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. Revised to express intention: See sec. 3401. §§ 3400-3403 SPECIFIC AND PREVENTIVE RELIEF. 672 § 3400. For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement. § 3401. In revising a written instrument, the court may inquire What the instrument was in- tended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be. § 3402. A contract may be first revised and then specifically enforced. ARTICLE V. RESCISSION OP CONTRACTS. § 3406. When rescission may be adjudged. § 3407. Rescission for mistake. § 3408. Court may require party rescinding to do equity. § 3406. The rescission of a written contract may be adjudged, on the application of a party aggrieved : 1. In any of the cases mentioned in section 1689; or. 2. Where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault; or, 3. When the public interest will be prejudiced by permitting it to stand. Rescission of contracts by party thereto: Sec. 1689. ante. Rescission against consent, how effected: Sec. 1601, ante. Cancellation of instruments: See sees. 3412 et SGQ- Rescission, how effected: See sec. 1691, and note. 673 SPECIFIC AND PREVENTIVE RELIEF. §§ 3407-3413 § 3407. Rescission cannot be adjudged for mere mistal^e, unless the party against wliom it is adjudged can be restored to substantially the same position as if the contract had not been made. Restoring party in statu quo: See sec. 1691. § 3408. On adjudging the rescission of a con- tract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require. ARTICLE VI. CANCELLATION OF INSTRUMENTS. § 3412. When cancellation may be ordered. § 3413. Instrument obviously void. § 3414. Cancellation in part. § 3412. A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or cancelled. Rescission of contracts: See ante, sees. 3406 et sen. Removing cloud on title: See sec. 738, Code Civ. Proc. Cancellation and alteration of instruments by parties thereto: See sees. 1607 et seq. § 3413. An instrument, the invalidity of which is apparent upon its face, or upon the face of an- other instrument which is necessary to the use of the former in evidence, is not to be deemed capa- ble of causing injury, within the provisions of the last section. Civ. Code— 57 §§ 3414-3423 SPECIFIC AND PREVENTIVE RELIEF. 674 § 3414. Where an instrument is evidence of different riglits or obligations, it may be cancelled in part, and allowed to stand for the residue. CHAPTER III. PREVENTIVE RELIEF. § 3420. Preventive relief, how granted. § 3421. Provisional injunctions. § 3422. Injunction, when allowed. . § 3423. Injunction, when not allowed. § 3420. Preventive relief is granted by injunc- tion, provisional or final. Proceedings in other courts: See sec. 3423. Mortgage.— Injunction to restrain party in pos- session from waste during foreclosure suit: Sec. 745, Code Civ. Proc. Code Civ. Proc, sec. 731 et seq., and sec. 3493. § 3421. Provisional injunctions are regulated by the Code of Civil Procedure. [§§ 525-533.] § 3422. Except where otherwise provided by this title, a final injunction may be granted to pre- vent the breach of an obligation existing in favor of the applicant; 1. Where pecuniary compensation would not af- ford adequate relief; 2. Where it would be extremely difficult to as- certain the amount of compensation which would afford adequate relief; 3. A^'here the restraint is necessary to prevent a multiplicity of judicial proceedings; or, 4. "S^'here the obligation arises from a trust. Injunction generally: See sec. 3420. § 3423. An injunction cannot be granted: 1. To stay a judicial proceeding pending at the commencement of the action in which the injunc- 675 SPECIFIC AND PREVENTIVE RELIEF^. § 3428 tion is demanded, unless such restraint is neces- sary to prevent a multiplicity of such proceed- ings; 2. To stay proceedings in a court of the United SUtes; 3. To stay proceedings in another State upon a judgment of a court of that State; 4. To prevent the execution of a public statute by officers of the law, for the public benefit; f). To prevent the breach of a contract, the per- formance of which would not be specifically en- forced ; 6. To prevent the exercise of a public or private office, in a lawful manner, by the person in pos- session; 7. To prevent a legislative act by a municipal corporation. [Amendment approved March 30, 1874; Amendments 1878-4, 267. In effect July 1, 1874.] PART 11. SPECIAL RELATIONS OF DEBTOR AND CREDITOR. Title I. General Principles, §§ 3420-3433. II. Fraudulent Instruments and Transfers, §§ 3439-3442. III. Assignments for the Benefit of Credit- ors"; §§ 3449-3473. TITLE I. GENERAL PRINCIPLES. § 3429. Who is a debtor. § 3430. Who is a creditor. § 3431. Contracts of debtor are valid. § 3432, Payments in preference. § 3433. Relative rights of different creditors. § 3429. A debtor, within the meaning of this title, is one who, by reason of an existing obliga- tion, is or may become liable to pay money to an- other, whether such liability is certain or contin- gent. § 3430. A creditor, within the meaning of this title, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money. § 3431. In the absence of fraud, every contract of a debtor is valid against all his creditors, exist- 677 FRAUDULENT INSTRUMENTS, ETC. §§ 3432-3439 ing or subsequent, who have not acquired a lien on the property affected by such contract. § 3432. A debtor may pay one creditor in pref- erence to another, or may give to one creditor se- curity for the payment of his demand in prefer- ence to another. Assign preferring creditor: See sec. 3457, subd. 1. § 3433. Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in,, or is entitled as a creditor to resort to some, but not all of them, the latter may require the former to seeli satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to com- plete satisfaction, and without doing injustice to third persons. TITLE II. FRAUDULENT INSTRUMENTS AND TRANSFERS. § 3439. Transfers, &c., with intent to defraud creditors. § 3440. Certain transfers presumed fraudulent. § 3441. Creditor's right must be judicially ascertained. § 3442. Question of fraud, how determined. § 3439. Every transfer of property or charge thereon made, every obligation incurred, and every judicial proceeding tal^en, with intent to delay or defraud any creditor or other person of his de- mands, is void against all creditors of the debtor, and their successors in interest, and against any person upon whom the estate of the debtor de- volves in trust for the benefit of others than the debtor. Arrest: See Code Civ. Proc, sec. 479. Fraudulent conveyance: See Penal Code, sees. 154, 531. §§ 3-140-3441 FRAUDULENT INSTRUMENTS. ETC. 678 § 3440. Everj'^ transfer of personal property, other than a thing in action, or a ship or cargo at sea or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclu- sively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate de- volves in trust for the benefit of others than him- self, and against purchasers or encumbrancers in good faith subsequent to the transfer; provided, however, that the provisions of this section shall not apply to the transfers of wines in the wineries or wine cellars of the makers or owners thereof, or other persons having possession, care, and control of the same, and the pipes, caslis, and tanks in which the said wines are contained, which transfers shall be made in writing, and cer- tified and acknowledged and verified in the same form as provided for chattel mortgages and which shall be recorded in the book of miscellaneous records in the office of the county recorder of the county in which the same are situated. [Amend- ment approved March 12, 1895; Stats. 1895, 43. In effect in sixty days.] Chattel mortgage. — Change of possession not necessary; it must be recorded: Sec. 2959, ante. Chattel mortgage, when void as to creditors and purchasers: Sec. 2957. § 3441. A creditor can avoid the act or obliga- tion of his debtor for fraud only where the fraud obstructs the enforcement, by legal process, of his J €79 FRAUDULENT INSTRUMENTS, ETC. § 3442 right to take the property affected l)y the transfer or obligation, § 3442. In all eases arising under section twelve hundred and twenty-seven, or under the provisions of this title, except as otherwise pro- vided in section thirty-four hundred and forty, the question of fraudulent intent is one of fact and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration; pro- vided, however, that any transfer or incumbrance of property- made or given voluntarily, or without a valuable consideration, by a party while insol- vent or in contemplation of insolvency, shall be fraudulent, and void as to existing creditors. [Amendment approved March 26, 1895; Stats. 1895, 115. In effect in sixty days.] §3449 ASSIGNMENTS. 6S0 TITLE III. ASSIGNMENTS FOR THE BENEFIT OP CREDITORS. S 3449. When debtor may execute assignment. § 3450. Insolvency, what. § 3451. Certain transfers not affected. § 3452. What debts may be secured. § 3453. What preferences may be given. (Repealed.) § 3454. Preference must be absolute. (Repealed.) § 3455. Certain rights not affected by preferences in assign- ment. (Repealed.) § 3456. Joint and separate debts. (Repealed.) § 3457. Assignment, when void. § 3458. The instrument of assignment. § 3459. Compliance with provisions of last section necessary to validity of assignment. § 3460. Assignee takes, subject to rights of third parties. § 3461. Inventory required. § 3462. Verification of inventory. § 3463. Recording assignment and filing inventory. § 3464. Same. § 3465. Effect of omitting to record. § 3466. Assignment of real property. § 3467. Bond of assignees. § 3468. Conditions of disposal and conversion. § 3439. Accountings. § 3470. Property exempt. § 3471. Compensation. § 3472. Assignees protected for acts done in good faith. § 3473. Assent of creditor necessary to modification of as- signment. § 3449. An insolvent debtor may in good faith execute an assignment of property in trust for the satisfaction of his creditors, in conformity to the provisions of this chapter; subject, however, to the provisions of this Code relative to trusts and fraudulent transfers, and to the restrictions im- posed by law upon assignments by special part- nerships, by corporations, or by other specific classes or persons. Every such assignment shall contain a list of the names of the creditors of the assignor, and their places of residence and amounts of their respective demands, and the amounts and nature of any security therefor, and 681 ASSIGNMENTS. § 3449 shall, subject to the other provisions of this sec- tion, be made to the sheriff of the county, or city and county, wherein the assi;;,^nor resides, if the assignor resides within this State; or in case the assignor resides out of this State, then to the sher- iff of the county, or city and county, wherein the property assigned, or some of it, is situated; but when the assignor resides out of the State, an as- signment made as herein provided may, by its terms, transfer any property of the assignor in this State. The sheriff shall forthwith take pos- session of all the property so assigned to him, and keep the same till delivered by him, as herein- after provided. When the assignment has been made, as herein provided, the sheriff shall immedi- ately, by mail, notify the creditors named in the assignment, at their places of residence as given therein, to meet at his office on a day and hour to be appointed by him, of not less than eight nor more than ten days from the date of the delivery of the assignment to him, for the purpose of elect- ing one or more assignees, as they may deter- mine, in the place and stead of the said sheriff ic the premises, and shall also publish a notice oi such meeting, and the purpose thereof, at least once before such meeting, in some newspaper pub- lished in his county, or city and county. The no- tice so to be mailed shall also contain a statement of the amount of the demand of the creditor, and the amount and nature of any security therefor, as set forth in the assignment; and if any creditor shall not find the amount of his claim to be cor- rectly so stated, he may file with said sheriff, at or before such meeting, a statement, under oath, of his demand, and such statement shall, for the purpose of voting as hereinafter provided, be accepted by said sheriff as correct; and when no such statement is filed, the statement of amount as set forth in the assignment shall be § 3449 ASSIGNMENTS, 682 accepted by the sheriff as correct. No creditor having a mortgage or pledge of real or personal property of the debtor, or lien thereon, for secur- ing the payment of a debt owing to him from the debtor, shall be allowed to vote any part of his claim at snch meeting of creditors, unless he shall have first conveyed, released, or delivered up his said security to said sheriff, for the benefit of all creditors of said assignor. At such meeting the sheriff shall preside, and a majority in amount of demands present or represented by proxy shall control all questions and decisions. The creditors may adjourn such meeting from time to time, and may vote on all questions either in person or by proxy signed and acl^nowledged before any oflicer authorized to take acknowledgments, and filed with the sheriff. At such a meeting, or any ad- journment thereof, the creditors may elect one or more assignees from their own number, in the place and stead of the sheriff, and the person or persons so elected shall afterwards be the as- signee or assignees under the provisions of this title; and the sheriff, by transfer in writing, acknowledged as required by sec- tion three thousand four hundred and fifty- eight, shall at once assign to such elected assignee or assignees, upon the trusts in this title provided, all the property so assigned to him, and deliver possession thereof. All recitals in such assignment by said sheriff of notices of such meet- ing, and the holding thereof, and of the due elec- tion of such assignee or assignees, shall be prima facie proof of the facts recited. The sheriff shall, before the delivery of such assignment, be paid the expenses inciu'red by him, and fees in such amount as would by law be collectible if the prop- erty assigned had been levied upon and safely kept under attachment. Thereupon, and after the record of such last named assignment, as in this 683 ASSIGNMENTS. §§ 3450-345S title provided, such elected assignee or assignees shall take, and hold, and dispose of all such prop- erty and its proceeds, upon the trusts and condi- tions and for the purposes in this title provided. [Amendment approved March 26, 1895; Stats. 1895. 62. In effect in sixty days.] See sec. 2430, subd. 1, ante; sec. 3473, post. Insolvency act: See Code Civ. Proc, Appendix, pp. 817 et seq. § 3450. A debtor is insolvent, within the mean- ing of this title, when he is unable to pay his debts from his own means as they become due. § 3451. The provisions of this title do not pre- vent a person residing in another State or coun- try from making there, in good faith, and without intent to evade the laws of this State, a transfer of property situated within it; but such person cannot make a general assignment of property situated in this State for the satisfaction of all his creditors, except as in this title provided; nor da the provisions of this title atfect the power of a person, although insolvent, and whether residing within or without this State, to transfer property in this State, in good faith, to a particular credit- or, for the purpose of paying or securing the whole or a part of a debt owing to such creditor, wheth- er in his own right or otherwise. [Amendment approved March 7, 1889; Stats. 1889, 82. In ef- fect March 7, 1889.] § 3452. An assignment for the benefit of credit- ors may provide for any subsisting liability of the assignor which he might lawfully pay, whether absolute or contingent. § 3453. [Repealed March 30, 1874; Amend- ments 1873-4, 267. In effect July 1, 1874.] §§ 3454-3458 ASSIGNMENTS. 684 § 3454. [Kepealed March 30, 1874; Ameno ments 1873-4, 267. In effect July 1, 1874.] § 3455. [Kepealed March 30, 1874; Amend- ments 1873-4, 267. In effect July 1, 1874.] § 3456. [Repealed March 30, 1874; Amend- ments 1873-4, 267. In effect July 1, 1874.] § 3457. An assignment for the benefit of credit- ors is void against any creditor of the assignor not assenting thereto, in the following cases: 1. If it give a preference of one debt or class of debts over another; 2. If it tend to coerce any creditor to release or compromise his demand; 3. If it provide for the payment of any claim known to the assignor to be false or fraudulent, or for the payment of more upon any claim than is linown to be justly due from the assignor; 4. If it reserve any interest in the assigned property, or in any part thereof, to the assignor, or for his benefit before all his existing debts are paid; 5. If it confer upon the assignee any power which, if exercised, might prevent or delay the immediate conversion of the assigned property to the purposes of the trust; 6. If it exempt him from liability for neglect of duty or misconduct. [Amendment approved March 30, 1874; Amendments 1873-4, 267. In ef- fect July 1, 1874.] Assignment, when void: Subd. 1. Preferences: See sec. 3432. Preferences by special partnerships: See sec. 2496. § 3458. An assignment for the benefit of cred- itors must be in writing, subscribed by the as- signor, or by his agent thereto authorized in writ- ing, and tlie transfer by the sheriff must also be in writing, subscribed by the sheriff in his official i 685 ASSIGNMENTS. §§ 3459-3461 capacity. Both such assignment and such trans- fer must be aclinowledged, or proved and certified, in the mode prescribed by the chapter on record- ing transfers of real property, and be recorded as required by sections thirty-four hundred and sixty- three and thirty-four hundred and sixty-four; but recording in one county constitutes a compliance with the following section. [Amendment approved March 7, 1889; Stats. 1889, 82. In effect March 7, 1889.] § 3459. Unless the provisions of the last sec- tion are complied with, an assignment for the benefit of creditors is void against every creditor of the assignor not assenting thereto. § 3460. An assignee for the benefit of creditors is not to be regarded as a purchaser for value, and has no greater rights than his assignor had, in respect to things in action transferred by the assignment. § 3461. Within twenty days after an assign- ment is made for the benefit of creditors, the as- signor must malie and file, in the manner prescrib- ed by section 3463, a full and true inventory, showing: 1. All the creditors of the assignor; 2. The place of residence of each creditor, if Ivnown to the assignor; or if not known, that fact must be stated; -3. The sum owing to each creditor and the nature of each debt or liability, whether arising on written security, account, or otherwise; 4. The true consideration of the liability in each case, and the place where it arose; 5. Every existing judgment, mortgage, or other security for the payment of any debt or liability of the assignor; G. All property of the assignor at the date of Civ. Code— 58 § 3462 ASSIGNMENTS. 686 the assignmeut, which is exempt by law from execution; and, 7. All of the assignor s property at the date of the assignment, both real and personal, of every kind, not so exempt and the incumbrances exist- ing thereon, and all vouchers and securities relat- ing thereto, and the value of such property ac- cording to the best linowledge of the assignor. § 3462. An affidavit must be made by every assignor executing an assignment for the benefit of creditors, to be annexed to and filed with the inventory mentioned in the last section, to the effect that the same is in all respects just and true according to the best of such assignor's Ivuowledge and belief. If the assignor neglects or refuses to make and file such inventory and afli- davit within said twenty days, the assignment shall not, for that reason, be affected in any way, but in that event the assignee or assignees elected by the creditors shall within twenty days there- after make and tile, in the office of the County Recorder where the assignment is first recorded, a verified inventory of all assets received by them; and such assignee or assignees may at any time, or from time to time, after the transfer to them by the sheriff, by petition to the Superior Court of the county, or city and county, where the as- signment is first recorded, cause the assignor, by order or citation, to appear before said court, or a commissioner or referee to be appointed by .it, at a time and place within the county, or city and county, to be designated in the order or citation, to be examined touching the matters mentioned in section three thousand four hundred and sixty- one, and any other matters relative to the as- signment, and to have with him all books of ac- count, vouchers, and papers relating to the as- signed property; and such court may by its order 687 ASSIGNMENTS. §§ 3463-3466 require the surrender to such assignee or assignees of such books, vouchers, and papers, to be by them retained until their trust is fully completed and performed. [Amendment approved March 7, 1889; Stats. 1889, 82. In effect March 7. 1889.1 § 3463. An assignment for the benefit of cred- itors must be recorded, and the inventory required by section 34G1 filed with the county recorder of the county in which the assignor resided at the date of the assignment; or, if he did not then re- side in this State, with the recorder of the county in which his principal place of business was then situated; or if he had not then a residence or place of business in this State, with the recorder of the county in which the principal part of the assigned property was then situated. § 3464. If an assignment for the benefit of creditors is executed by more than one assignor, it may be recorded, and a copy of the inventory, required by section 3461, may be filed with the re- corder of the county in which any of the assignors resided at its date, or in which any of them, not then residing in this State, had then a place of business. § 3465. An assignment for the benefit of cred- itors is void against creditors of the assignor and against purchasers, and encumbrancers in good faith, and for value, unless it is recorded as pro- vided in this title, and unless either the inven- tory required by section 3461, or the inventory re- quired of the assignee or assignees by section 3462. is filed in the manner provided in this title and within the time designated. [Amendment ap- proved March 7, 1889; Stats. 1889, S3. In effect March 7, 1889.] § 3466. Where an assignment for the benefit of creditors embraces real property, it is subject §§ 3467, 3468 ASSIGNMENTS. 688 to the provisions of Article IV. of the Chapter on Eecording Transfers, as well as to those of this title. [Sees. 1158-1217.] § 3467. No bond shall be given by the sheriff, but he shall be liable on his official bond for the care and custody of the property while in his possession. Within forty days after date of the transfer by the sheriff, the assignee must enter into a bond to the people of this State in such amount as may be fixed by a judge of the Superior Court of the county, or city and county, in which an inventory in accordance with the provisions of this title is filed, with sufficient sureties to be ap- proved by such judge, and conditioned for the faithful discharge of the trust and the due ac- counting for all moneys received by the assignee, which bond must be filed in the same office with the inventory; and any assignee failing to comply with the provisions of this section may be re- moved by the above named Superior Court on pe- tition of the assignor or any creditor, and his successor appointed by such court. [Amendment approved March 7, 1889; Stats. 1889, 83. In effect March 7. 1889.] § 3468, Until a verified inventory has been made and filed, either by the assignor or assignee, as required by the provisions of this title, and the assignee has given the bond required by the last section, such assignee has no authority to dispose of the property of the estate, or any part of it (except in the case of perishable property, which in his discretion he may dispose of at any time, and receive the proceeds of sale thereof); nor has he power to convert the property, or the proceeds of any sale of perishable property, to the purposes of the trust. Within ten days after the filing of his bond, the assignee must commence 689 ASSIGNMENTS. § 3468 the publication (and such publication shall con- tinue at least once a weeli: for four weelis), in some newspaper published in the county, or city and county, where the inventory is filed, of a no- tice to creditors of the assignor, stating the fact and date of the assignment, and requiring all per- sons having claims against the assignor to exhibit them, with the necessary vouchers, and verified by the oath of the creditor, to the assignee, at his place of residence or business, to be specified in the notice; and he shall also, within ten days after the first publication of said notice, mail a copy of such notice to each creditor whose name is given in the instrument of assignment, at the address therein given. After such notice is given, a copy thereof, with affidavit of due publication and mailing, must be filed with the County Recorder with whom the inventory has been filed, which afiidavit shall be prima facie evidence of the facts stated therein. At any time, or from time to time, after the expiration of thirty days from the first publication of said notice (provided, the same shall also have been mailed as in this section provided), the assignee may, in his discretion, de- clare and pay dividends to the creditors whose claims have been presented and allowed. No divi- dend already declared shall be disturbed by rea- son of claims being subsequently presented and allowed; but the creditor presenting such claim shall be entitled to a dividend equal to the per cent already declared and paid, before any further dividend is made; provided, however, that there be assets sufficient for that purpose, and pro- vided, that the failure to present such claim shall not have resulted from his own neglect, and he shall attach to such claim a statement, under oath, showing fully why the same was not be- fore presented. When a creditor has a mortgage (»r pledge of real or personal property of the debt- § 3469 ASSIGNMENTS. 690 or, or a lien thereon, for securing the payment of a debt owing to him from the debtor, and shall not have conveyed, released, or delivered up sucli security to the sheriff, as provided for bj^ section three thousand four hundred and forty-nine of this Code, he shall be admitted as a creditor only foi the balance of the debt after deducting the value of such mortgage, pledge, or lien, to be ascer- tained by agreement between him and the as- signee, or by a sale thereof, to be made in sucli manner as the Superior Court of the county in which the assignment is made shall direct; or the creditor may release or convey his claim to the assignee upon such property, and be admitted to prove his whole debt. If the value of the prop- erty exceeds the sum for which it is so held as security, the assignee may release to the creditor the debtor's right of redemption thereon on re- ceiving such excess; or he may sell the property, subject to the claim of the creditor thereon; and in either case the assignee and creditor, respec- tively, shall execute all deeds and writings neces- sary or proper to consummate the transaction. If the property is not sold or released, and delivered up, the creditor shall not bo allowed to prove any part of his debt. [Amendment approved March 26, 1895; Stats. 1895, 03. In effect in sixty days.] § 3469. After six months from the date of an assignment for the benefit of creditors, the assignee may be required, on the petition of any creditor to account before the Su- perior Court of the county where the ac- companying inventory was filed, in the manner prescribed by the insolvent laws of this State. [Amendment approved February 15, 1883; Stats. 1883-4, p. 000. In effect February 15, 1883.] Polit. Code. sec. 19, subd. 24, continues in force. Act of May 4, 1862. 691 ASSIGNMENTS. §§ 3470-3472 § 3470. Property exempt Horn execution and insurance upon the life of the assignor, do not pass to tlie assignee by a general assignment for the benefit of creditors, unless the instrument spe- cially mentions them, and declares an intention that they should pass thereby. § 3471. The elected assignee or assignees for the benefit of creditors shall be entitled to the same commissions on assignments heretofore and hereafter made as are allowed by law to the as- signees in insolvency, and the assignment cannot grant more. Such assignee or assignees shall also be entitled to all necessary expenses in the man- agement of their trust. [Amendment approved March 7, 1889; Amendments 1889, 84. In effect March 7, 1889.] § 3472. An assignee for the benefit of credit- ors is not to be held liable for his acts, done in good faith, in the execution of the trust, merely for the reason that the assignment is afterward adjudged void. § 3473. An assignment for the benefit of credit- ors which has been executed and recorded so as to transfer the property to the sheriff, or a trans- fer by the sheriff to the elected assignee or as- signees which has been executed and recorded, cannot afterwards be modified or canceled by the parties without the consent of the assignor and of every creditor affected thereby. [Amendment approved March 7, 1889; Stats. 1889, 84. In ef- fect March 7, 1SS9.] PART III. NUISANCE. Title I. General Principles, i II. Public Nuisances, §§ 3490-3495. III. Private Nuisances, §§ 3501-3503. TITLE I. GENERAL PRINCIPLES. § 3479, Nuisance, what. § 3480. Public nuisance. § 3481. Private nuisance. § 3482. What is not deemed a nuisance. § 3483. Successive owners. § 3484. Abatement does not preclude action. § 3479. Anything Avhich is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free pas- sage or use, in the customary manner, of any navigable lal^e, or river, bay, stream, canal, or basin, or any public parl^, square, street, or high- way, is a nuisance. [Amendment approved March 30, 1874; Amendments 1873-4, 2G8. In effect July 1. 1874.] Nuisances, what are, and remedies for: See Code Civ. Proc, sec. 731; Penal Code, sees. 370- 371. Artesian well not capped so as to prevent waste is: See Penal Code, Appendix. § 3480. A public nuisance is one which affects 693 NUISANCE. §§ 3481-3484 at the same time an entire community or neigh- borhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. [Amendment approved March 30, 1874; Amend- ments 1873-4, 208. In effect July 1, 1874.] Abating public nuisance: Sees. 3494, 3495. Public nuisance not legalized by lapse of time: Sec. 3490. § 3481. Every nuisance not included in the de- finition of the last section is private. § 3482. Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. § 3483. Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by a form- er owner, is liable therefor in the same manner as the one who first created it. Nuisances, what are, and actions for: See Code Civ. Proc. sec. 731. § 3484. The abatement of a nuisance does not prejudice the right of any person to recover dam- ages for its past existence. Nuisance: Penal Code, sees. 370-374. §§ 3490-3495 PUBLIC NUISANCES. 694 TITLE II. PUBLIC NUISANCES. § 3490. Lapse of time does not legalize. § 3491. Abatement. § 3492. When notice is required. § 3493. Remedies for public nuisance. § 3494. Action. § 3495. How abated. § 3490. No lapse of time can legalize a public nnisauce, amounting to an actual obstruction of public light. Public nuisance defined: See sec. 3480. § 3491. The remedies against a public nuisance are: 1. Indictment or information; 2. A civil action; or, 3. Abatement. [Amendment approved March 2, 1880; Amendments 1880, 1. In effect March 2, 1880.] § 3492. The remedy by indictment or informa- tion is regulated by the Penal Code. [Amend- ment approved March 2, 1880; Amendments, 1880, p. 1.] Punishment for nuisance: Penal Code, sees. 370- 374. § 3493. A private person may maintain an ac- tion for a public nuisance, if it is specially injuri- ous to himself, but not otherwise. § 3494. A public nuisance may be abated by any public body or officer authorized thereto by lavp". § 3495. Any person may abate a public nuis- ance which is specially injurious to him by remov- 595 PRIVATE NUISANCES. §§ 3501-3503 ing, or, if necessary, destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. TITLE III. PRIVATE NUISANCES. § 3501. Remedies for private nuisance. § 3502, Abatement, when allowed. § 3503. When notice is required. § 3501. The remedies against a private nuis- ance are: 1. A civil action; or, 2. Abatement. Civil action for nuisance: See, generally, sec. 3493. § 3502. A person injured by a private nuisance may abate it by removing, or, if necessary, de- stroying the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary injury. Abating public nuisance: See sees. 3494, 3495. § 3503. Where a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon his land, reasonable notice must be given to him before entering to abate it. PART IV. MAXIMS OF JURISPRUDENCE. § 3509. The maxims of jurisprudence herein- after set forth are intended not to qualify any of the foregoing provisions of this Code, but to aid in their just application. § 3510. When the reason of a rule ceases, so should the rule itself. § 3511. Where the reason is the same, the rule should be the same. § 3512. One must not change his purpose to the injury of another. § 3513. Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contra- vened by a private agreement. § 3514. One must so use his own rights as not to infringe upon the rights of another. § 3515. He who consents to an act is not wronged by it. § 3516. Acquiescence in error takes away the right of objecting to it. § 3517. No one can take advantage of his own wrong. § 3518. He who has fraudulently dispossessed \ 6S7 MAXIMS OF JURISPRUDENCE. §§ 3519-3530 himself of a thing may be treated as if he still had possession. § 3519. He who can and does not forbid that which is done on his behalf is deemed to have bidden it. § 3520. No one should suffer by the act of an- other. § 3521. He who takes the benefit must bear the burden. § 3522. One who grants a thing is presumed to grant also whatever is essential to its use. § 3523. For every wrong there is a remedy. § 3524. Between those who are equally in the right, or equally in the wrong, the law does not interpose. § 3525. Between rights otherwise equal the earliest is preferred. § 3526. No man is responsible for that which no man can control. § 3527. The law helps the vigilant, before those Avho sleep on their rights. § 3528. The law respects form less than sub- stance. § 3529. That which ought to have been done is to be regarded as done, in favor of him to whom and against him from whom, performance is due. ;j 3530. That which does not appear to exist is to be regarded as if it did not exist. Civ. Code— 59 §§ 3531-3543 MAXIMS OF JURISPRUDENCE. 698 § 3531. The law never requires impossibilities. § 3532. The law neither does nor requires idle acts. § 3533. The law disregards trifles. § 3534. Particular expressions qualify those which are general. § 3535. Contemporaneous exposition is in gen- eral the best. § 3536. The greater contains the less. § 3537. Superfluity does not vitiate. § 3538. That is certain which can be made cer- tain. § 3539. Time does not confirm a void act. § 3540. The incident follows the principal, and not the principal the incident. § 3541. An interpretation which gives effect is preferred to one which malies void. § 3542. Interpretation must be reasonable. § 3543. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened must be the sufferer. Approved, March 21, 1872. NEWTON BOOTH, Governor. CIVJL CODE. 699 The amendments which took effect July 1. 1874, and are so marked at the end of each section, were passed by Act of March 30. 1874. the closing para- graph of which is as follows: — "All provisions of law inconsistent with the pro- visions of this act are hereby repealed, but no rights acquired or proceedings taken under the provisions repealed, shall be impaired or in any manner affected by this repeal; and whenever a limitation or period of time is prescribed by such repealed provisions for acquiring a right or bar- ring a remedy, or for any other purpose, has be- gun to run before this act takes effect, and the same or any other limitation, is prescribed by this act, the time of limitation which shall have run when this act takes effect shall be deemed part of the time prescribed by this act. '•AYith relation to the laws passed at the present session of the legislature, this act must be con- strued as though it had been passed at the first day of the present session, if the provisions of any law passed at the present session of the legisla- ture contravenes or is inconsistent with the pro- visions of this act, the provisions of such law must prevail. "This act shall take effect on the first day of July, one thousand eight hundred and seventy- four. "Approved, March 30, 1874." APPENDIX. APPENDIX ACKNOWLEDGMENTS. An Act to legalize certain acknowledgments. [Approved March 2, 1891; Stats. 1891, 20.] Section 1. All acknowledgments of deeds and other instruments of writing, whereby real estate, or any interest therein, is conveyed or may be af- fected, heretofore taken before court commission- ers, and by them certified in the usual legal form, shall, from and after the passage of this act, have the same force and effect for all purposes as though such acknowledgments had been taken be- fore and certified by a clerk of a court of record, or a county recorder, or a notary public; and the rec- ords of such deeds or instruments, if the same shall have been admitted for record, shall here- after impart notice to the same extent as though such acknowledgments had been taken before and certified by any one of the above-named otficers; provided, nothing in this act shall be so construed as in any manner to affect the rights of any sub- sequent purchaser in good faith. Sec. 2. This act shall take effect from and after its passage. 704 APPENDIX. An Act to legalize acknowledgments of certificates in writing required by section two of an act entitled "An Act to provide for the formation of chambers of commerce, boards of trade, me- chanic institutes, and other l^indred protective associations," approved March thirty-first, eighteen hundred and sixty-six, heretofore made or talien, and to legalize all certificates heretofore made, signed, and acl^nowledged, and filed under section two of said act. [Approved March 10, 1885; 1885, 55.] Section 1. All acknowledgments heretofore made or taken to the certificate in writing required by section two of an act entitled "An act to provide for the formation of chambers of commerce, boards of trade, mechanic institutes, and other kindred protective associations," approved March thirty-first, eighteen hundred and sixty-six, wheth- er proven by a witness or otherwise, and all cer- tificates in writing heretofore made, signed, and acknowledged, and filed under section two of said act, though said certificates and acknowledgments be defective or irregular, are hereby legalized and made valid. Sec. 2. This act shall take effect and be in force from and after its passage. An Act to legalize certain acknowledgments. [Approved February 25, 1897.] The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. All acknowledgments of deeds and other instruments of writing, whereby real estate, APPENDIX. 705 or any interest therein, is conveyed or may be af- fected, Iieretofore taken before court commission- ers or a county clerk, and by them or bim certi- fied in the usual legal form, shall, from and after the passage of this act, have the same force and effect for all purposes, as though such acknowledg- ments had been taken before and certified by a clerk of a court of record, or a county recorder, or a notary public; and the record of such deeds or instruments, if the same shall have been admitted to record, shall hereafter impart notice to the same extent as though such acknowledgments had been taken before and certified by any one of the above- named officers, and said records and duly certified copies thereof, shall have the same effect in evi- dence as though said deeds or instruments had been originally acknowledged and certified before, and by duly authorized officers; provided, nothing in this act shall be so construed as in any manner to affect the rights of any subsequent purchaser in good faith and for value. Sec. 2. This act shall take effect from and after its passage. ANIMALS. An Act to prevent combinations to obstruct the sale of livestock in the State of California. [Approved February 27, 1893; Stats. 1893, 30.] § 1. Combinations to prevent buying live stock prohib- ited. § 2. Corporations prohibited. § 3. By-lav.-s of corporations. § 4. Trusts, comtinatlons or conspiracies. § 5. Selling live stock at any market. § 3. Punishment. Section 1. It shall be unlawful for any two or more persons or corporations to combine or agree 706 APPENDIX. together to do any act which will, in any respect, prevent any person from buying livestock at any place in this State from any person having the same for sale, either for himself or as the repre- sentative or agent of the owner of the same. Sec. 2. It shall be unlawful for any corporation organized under the laws of this State, or any board of directors or trustees, or stocliholders, or agents, or officers of any corporation, to have, pass, or enforce any rule, by-law, or regulation whereby any officer, stoclj;holder, member, share- holder, agent, servant thereof, or any other person in any way interested in or connected with such corp: ration, shall in any respect be prohibited, pre- vented, or enjoined from buying livestocli from any other person having such livestocli for sale, either as owner thereof, or as the agent, represen- tative, or assistant of such owner, in any market in this State, where livestock is brought to be sold. Sec. 3. Every rule, regulation, or by-law of any corporation doing business in this State, which has for its purpose, or which, directly or indirectly, tends to prevent its members or stockholders from freely purchasing livestock from any person law- fully having the same for sale, upon any livestock market of this State, are hereby declared to be contrary to the public policy of this State, and un- lawful and void; and any person or persons who shall attempt, directly or indirectly, to enforce any such rule, regulation or by-law, shall be deemed guilty of a misdemeanor, and in addition to the penalties prescribed by this act shall be personally liable for all damages which may arise from the enforcement of such rule, regulation, or by-law, to any person damaged thereby. Sec. 4. No trusts, combinations, or conspiracies shall be organized or exist in this State, to prevent any person or persons, or corporation, from selling livestock on commission, for such an amount of APPENDIX. 707 commission as any person engaged in the business may see fit to cliarge; and all rules, regulations, by-laws, or agreements of any corporation, asso- ciation, society, or combination of persons, where- by any such corporation, society, association, or combination of individuals are required to charge not less than a given sum for commissions, or whereby any person or commission merchant is, in any respect, restrained from charging less than a certain fixed sum for his services as such com- mission merchant in the sale of livestocl^, are hereby declared to be contrary to the public policy of this State, and unlawful; and any person who shall enter into any such trust, combination, or conspiracy, or who shall enforce or aid, abet, as- sist, or encourage the enforcement of any such rule, regulation, by-law, or agreement, shall be lia- ble to the penalties prescribed by this act, and also shall be personally liable to any person, individual, society, or corporation who may be injured in his property or business thereby, to the full extent of the injury resulting therefrom. Sec. 5. Whoever shall, directly or indirectly, be a party to any combination, conspiracy, or associa- tion, which attempts, directly or indirectly, to pre- vent any other person from freely selling livestock at any market in this State for such persons as see fit to engage his services, or shall endeavor to com- pel, directly or indirectly, any person to charge not less than a fixed minimum sum for services in the sale of livestock, or shall, in any way, hinder or prevent another from lawfully selling livestock for another, for such rate of commission as may be agreed upon by the owner of the livestock and the commission merchant, shall be deemed guilty of a misdemeanor, and suffer the penalties pre- scribed by this act, and shall be personally liable to any one aggrieved thereby, for the full amount of any damage sustained by such person. 10^ APPENDIX. Sec. 6. Any one who shall violate the provisions of this act shall be punished by a fine in any sum not less than five hundred dollars, and not more than five thousand dollars, or by imprisonment in the county jail not exceeding one year, or by either or both, in the discretion of the court, and shall be liable, in civil action, to any person ag- grieved, in such damages as he or she may have sustained by the violation of this act. Sec. 7. This act shall take effect and be in force- from and after its passage. APPRENTICES. An Act relative to apprentices and masters. [Approved April 3, 187G; 1875-6, 842.] § 1. Minors may be apprenticed. § 2. By whom. § 3. Consent of minor necessary. § 4. Indentures. § 5. Idem. ^ 6. Idem— What to be decided before they take effect. § 7. Executor may bind. § 8. Superior court may bind. § 9. Obligations of master. § 10. Money consideration and clothes. § 11. Treatment of apprentices. § 12. Age to be stated. § 13. Court to hear complaints, § 14. Court may discharge apprentice. § 15. Liability of master. § 16. Action against apprentice for neglect, misdemeanor, etc. § 17. Court may dissolve apprenticeship. § 18. Liability of parties to indenture. § 19. Misdemeanor. § 20. When master removes from this State. Minors may be apprenticed. Section 1. All minors, at the age of fourteen years, may be bound by covenant or indenture, in APPENDIX. 709 conformity witli the stipulations herein specified, to any mechanical trade or art, or the occupation of farming, as apprentices; males to the age of twenty-one years, nnd females to the age of eighteen. Minors may be apprenticed, by Avhom. Sec. 2. Minors, at or above the age of fourteen yeai-s, may be bound by the father, or in case of his death, incompetency, or where he shall have willfully abandoned his family for one year, with- out making suital>le provision for their support, or has become an habitual drunkard, vagrant, etc., then by their mother, or by their legal guardian; and if illegitimate, they may be bound by their mother; and if they have no parent competent to act, and no guardian, they may bind themselves, with the approbation of the superior court of the county where they reside; but the power of a moth- er to bind her children, whether legitimate or ille- gitimate, shall cease upon her subsequent mar- riage, and shall not be exercised by herself or her husband, at any time during her marriage, with- out the approval of the Superior Court of the county wherein she or he resides. [Amendment approved April 9, 1880; Amendments 1880, 28 (Ban. ed. 177). Took effect immediately.] See post sees, 6, 7, 8. Consent of minor necessary. Sec. 3. In all cases the consent of the minor, personally, is required as a party to the covenant, and should be so expressed in the indenture, and testified by his or her signing the same. Indentures. Sec. 4. Indenttires shall be signed, sealed, and delivered, in duplicate copies, in the presence of all the parties concerned; and when made with the approbation of the Superior Court, or the judge thereof, in vacation, such approbation shall be certified in writing, indorsed upon each copy of Civ. Code— 60 710 APPENDIX. the indenture. One copy of the indenture shall be kept for the use of the minor by his parent or guardian (when executed by them respectively), but when made with the approbation of the court, it shall be deposited in the safekeeping of the clerk of said court for the use of the minor. The other copy shall be held by the master, and de- livered up by him to the apprentice at the expira- tion of his term of service. [Amendment approved April 9, 1880; Amendments 1880, 28 (Ban. ed. 178). Took effect immediately.] Sp-ine. Sec. 5. No indenture of apprentice, made in pursuance of this act, shall bind the minor after the death of his master; but the apprenticeship shall be thenceforth discharged, and the minor may be bound out anew. Same. Sec. 6. Facts of incapacity, desertion, drunk- enness, vagrancy, etc., shall be decided in the said court by a jury, before the indenture shall take effect, and an indorsement on the indenture, under seal of the court, that the charge or charges are proved, shall be sutticieut evidence of the mother's power to give such consent; but if the jury do not find the charge or charges to be true, the per- son at Avhose instance such proceedings may have been had shall pay all costs attending the same. [Amendment approved April 9, 1880; Amendments 1880, 28 (Ban. ed. 178.) Took effect immediately.] Executor may bind. Sec. 7. The executor, who by the will of a father is directed to bring up his child to a trade or calling, shall have power to bind such by in- denture in like manner as the father, if living, might have done. Superior court may bind. Sec. 8. When any minor who is poor, home- less, chargeable to the county, or an outcast, has APPENDIX. 711 no visible means of obtaining an honest liveli- hood, it shall be lawful for the said court to bind such apprentice until, if a male, he arrives at the age of twenty-one, and if a female, to the age of eighteen. [Amendment approved April 9, 1880; Amendments 1880, 28 (Ban. ed. 178). Took effect immediately.] Obligations of masters. Sec. 0. It shall be unlawful for any master to remove an apprentice out of this State; and in all indentures by the said court for binding out an orphan, or homeless minor, as an apprentice, there shall be inserted, among other covenants, a clause to the following effect: That the master to whom such minor shall be bound shall cause the same to be taught to read and write, and the ground rules of arithmetic, and the ratio and proportion, and shall give him requisite instruction in the dif- ferent branches of his trade or calling, and at the expiration of his term of service shall give him two full new suits of clothes and the sum of fifty dollars, gold; and if a female, she shall have two tine new suits of clothes and the sum of fifty dollars, gold; the two new suits in either case to be worth at least sixty dollars, gold. [Amend- ment, approved April 9, 1880; Amendments 1880, 29 (Ban. ed. ITS). Took effect immediately.] Money considerations and clothes the property of apprentice. Sec. 10. All considerations of money or clothes paid or allowed by the master, in conformity with the foregoing section, are the sole property of the apprentice, and to whom the master is accounta- ble for the same, and he shall pay or donate into the hand of the apprentice alone. Treatment of apprentices. Sec. 11. Parents and guardians and the said court shall, from time to time, inquire into the treatment of the children bound by them, respect- 712 APPENDIX. ively, or with their approbation; and the judges of the said courts shall be responsible for the charge of indentured apprentices bound by the ap- probation of their predecessors in oflice, and de- fend them from all cruelty, neglect, breach of contract, or misconduct on the part of their mas- ters. [Amendment approved April 9, 1880; Amendments 1880, 29 (Ban. ed. 178). Took effect immediately.] Age to be stated. Sec. 12. The age of every apprentice shall be inserted in the indenture; and all indentures en- tered into otherwise than as is herein provided shall be, as to all apprentices under age, utterly void. Court to hear complaints. Sec. 13. The Superior Court shall hear the complaints of apprentices, who reside within the county, against their masters, alleging undeserved or immoderate correction, insutficient allowance of food, raiment, or lodging, want of instruction in the different branches of their trade or calling, or that they are in danger of being removed out of the State, or any violation of the indenture of ap- prenticeship; and the court may hear and deter- mine such cases, and mal^e such order therein as will relieve the party in the future. [Amend- ment approved April 9, 1880; Amendments 1880, 29 (Ban. ed. 179). Tooli effect immediately.] Court may discharge apprentice. Sec. 14. The Superior Court shall have power, where circumstances require it, to discharge an apprentice from his apprenticeship, and in case any money, or other thing, has been paid or con- tracted to be paid by either party in relation to such apprenticeship, the court shall make such order concerning the same as shall seem just and reasonable. If the apprentice so discharged sliall have been originally bound by the Superior Court, APPENDIX. 713 it shall be the duty of th^ court, if found neces- sary, again to bind such apprentice, if under age. [Amendment approved April 9, 1880; Amend- ments 1880, 29 (Ban. ed. 179). Took effect imme- diately.] Liability of master. Sec. 15. Every master shall be liable to an ac- tion on the indenture for the breach of any coven- ant on his part therein contained; and all damages recovered in such action, after deducting the nec- essary charges in prosecuting the same, shall be the property of the minor, and shall be applied and appropriated to his use by the person who shall recover the same, and shall be paid to the minor, if a male, at the age of tAveuty-oue years, and if a female, at the age of eighteen years. If such action is not brought during the minority of such apprentice, it may be commenced in his own name at any time within six months after coming of age, but not later than two years. Action against apprentice for neglect, misde- meanor, etc. Sec. 16. An apprentice who shall be guilty of any gross misbehavior, or refusal to do his duty,^ or willful neglect thereof, shall render himself lia- ble to the complaint of the master in the Superior Court of the county wherein he resides, which complaint shall set forth the circumstances of the case; and to said complaint shall be attached a citation, signed by the cleric; of said court, requir- ing the apprentice, and all persons who have cov- enanted in his behalf, to appear and answer ta such complaint, which complaint and citation shall be served on them in the usual manner of serving^ civil process. [Amendment approved April 9, ISSO; Amendments 1880, 29 (Ban. ed. 179). Took effect immediately.] Court may dissolve apprenticeship. Sec. 17. The court shall proceed to hear and 714 APPENDIX. determine the cause, and after a full hearing of the parties, or if the adverse party shall neglect to appear after due notice, the court may render judgment or decree that the master be discharged from the contract of apprenticeship, and for the costs of suit; such costs to be recovered of the parent or guardian of the minor, if there be any who signed the indenture, and execution therefor issued accordingly; and if there be no parent or guardian liable for such costs, execution may be issued therefor against the minor, or the amount thereof may be recovered in an action against him after he shall arrive at full age. Liability of parties to indenture. Sec. 18. The parties to an indenture shall also be liable to the master in an action on the in- denture, for the breach of any covenant on their part therein contained, committed before the. mas- ter Avas so discharged from such indenture. Misdemeanor. Sec. 19. It shall be unlawful for any person to entice, counsel, or persuade to run away any ap- prentice, or employ, harbor, or conceal such, know- ing said apprentice to be a runaway; and the par- ties so offending shall be guilty of a misdemeanor, and be subject to tine of not less than fifty and not more than one hundred dollars, to be recovered by the master in any court having jurisdiction thereof. When master removes from this State. Sec. 20. Whenever any master of an apprentice shall wish to remove out of this State, or to quit his trade or business, he shall appear with his apprentice before the Superior Court of the proper county, and if the court be satisfied that the mas- ter has done justice to the said apprentice for the time he has had charge of the same, such court shall have power to discharge such apprentice from the service of such master, and again bind him, APPENDIX. 715 if necessary, to some other person. [Amendment approved April 9, 18S0; Amendments 1880, 30 (Ban. ed. 179). Tooli etfect immediately'.] Sec. 21. All acts and parts of acts in conflict with the provisions of this act are hereby re- Dealed. Sec. 22. This act shall take effect and be in force from and after its passage. BANKS AND BANKING. [See Acts relating" to this subject in Volume of General Laws, title, Banks and Banking.] An Act to repeal an Act entitled "An Act con- cerning corporations and persons engaged in the business of banking," approved April 1, 187G. [Approved March 26, 1895; Stats. 1895, p. 77.] The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. That an Act entitled "An Act con- cerning corporations and persons engaged in the business of banking." approved April first, eighteen hundred and seventy-six, be and the same is hereby repealed. Sec. 2. This Act shall take effect and be in force from and after its passage. APPENDIX. An Act to compel savings banks to publish a sworn statement of all unclaimed deposits. [Approved March 23, 1893; Stats. 1893, p. 183.] Section 1. The cashier or secretary of every savings banli, savings and loan society, and every institution in which deposits of money are made and interest paid thereon, shall, within fifteen days after the first day of December, in the year one thousand eight hundred and ninety-three, and within fifteen days of the first day of December of each and every second succeeding year there- after, return to the board of banli commissioners a sworn statement, showing the amount standing to his credit, the last known place of residence or postofiice address, and the fact of death, if known to said cashier or secretary, of every depositor who shall not have made a deposit therein, ur withdrawn therefrom any part of his deposit, or any part of the interest thereon, for a period of more than ten years next preceding; and the cash- iers or secretaries of such savings banks, savings and loan societies, and institutions for deposit of savings, shall give notice of these deposits in one or more newspapers published in or nearest to the city, city and county, or town where such banks are situated, at least once a week for four suc- cessive weeks, the cost of such publications to be paid pro rata out of said unclaimed deposits; pro- vided, however, that this act shall not apply to or affect the deposit made by or in the name of any person known to the said cashier, or secretary to be living, any deposit which, with the accumula- tions thereon, shall be less than fifty dollars. Sec. 2. The board of bank commissioners shall incorporate in their subsequent report each re- APPENDIX. 71? turn ^vhicli shall have been made to them, as pro- vided in section one of this act. Sec. 3. Any cashier or secretary of either of the banliing institutions mentioned in section one of this act nej^lecting or refusing to make the sworn statement required by said section one, shall be miilty of a misdemeanor. An Act to compel all depositaries of money and commercial banlis to publish a sworn state- ment of all unclaimed deposits. [Approved February 25, 1897.] § 1. Sworn statement, duty to file. § 2. Bank commissioners to report. § 3. Misdemeanor. The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. The president, cashier, or secretary of every banlv, depositary, society, or institution of every kind or character which receive money on deposit, or in which deposits of money are made, and upon which deposits no interest is paid, shall, within fifteen days after the first day of June in the year one thousand eight hundred and nine- ty-seven, and within fifteen days of the first day of June of each and every second succeeding year thereafter, return to the Board of Bank Commis- sioners, a sworn statement showing the amount standing to his credit, the last known place of residence or postoffice address, and the fact of death, if known to said president, cashier, or sec- retary, of every depositor of such bank, depos- itary, society, or institution, who shall not have made a deposit therein, or withdrawn therefrom any part of his deposit or funds to his credit there- 718 APPENDIX. in, for a period of more than ten years next pre- ceding; and the presidents, easliieus, or secretaries, of all such banlvs, depositaries, societies, and insti- tutions, which receive money on deposit or in which deposits of money is made, shall give no- tice of these deposits, in one or more newspapers published in or nearest to the city, city and coun- ty, or town where such banks, depositaries, soci- eties, or institutions are situated, at least once a weelv for four successive weeks, the cost of such publications to be paid pro rata out of said un- claimed deposits; provided, however, that this Act shall not apply to or affect the deposit made by or in the name of any person known to the said presidents, cashiers, or secretaries, to belong, or any deposit which, with the accumulations there- on, shall be less than fifty dollars. Sec. 2, The board of bank commissioners shall incorporate in their subsequent report each return which shall have been made to them, as provided in section one of this Act. Sec. 3. Any president, cashier, or secretary of either of the banks, depositaries, societies, or in- stitutions named in section one of this Act, neg- lecting or refusing to make the sworn statement required by said section one. shall be guilty of a misdemeanor. APPeJNDIX. < 719 An Act to amend an Act entitled, "An Act to pro- vide for the Formation of Corporations for the Accumulation and Investment of Funds and Savings," approved April eleventh, eighteen hundred and sixty-two. [Stats. 1871-2, pp. 132-3.] [Enacting clause.] § 1. Acts not lawful. § 2. Increase of capital stock. § 3. Idem. Section 1. Section eighteen of an act entitled "An act to provide for the formation of corpora- tions for the accumulation and investment of funds and savings,'' approved April eleventh, eighteen hundred and sixty-two, is hereby amend- ed so as to read as follows: Sec. 18. It shall not be lawful for the directors to divide, withdraw, or in any way pay to the stocliholders, or any of them, any part of the cap- ital stock, nor to reduce the amount of the same, except as hereinafter provided. Sec. 2. Section nineteen of the act mentioned in the first section of this act is hereby amended so as to read as follows: Sec. 19. Whenever it is desired to increase the amount of capital stock, and in cases where the capital stock is partly, but not all taken and paid in it is desired to reduce the same to not less than the amount paid in, a meeting of stockholders may be called, by a notice signed by at least a ma- jority of the directors, and published at least sixty days in every issue of some newspaper pub- lished in the county where the principal place of business of the company, is located, which notice shall specify the object of the meeting, the time and place where it is to be held, and the amount 720 APPENDIX. to which it is proposed to increase or reduce the capital stock, as the case may be; and a vote of two-thirds of all the shares of stock represented at the meeting shall be necessary to an increase or decrease of the amount of capital stock; pro- vided, that nothing in this act contained shall be held to authorize the release of any subscription to the capital stock, or the reduction of the amount of capital stock below the full amount that shall have been subscribed thereto. Sec. 3. Section twenty of the act mentioned in the first section of this act is hereby amended so as to read as follows: Sec. 20. If at any meeting so called a sufficient number of votes has been given in favor of in- creasing or reducing the amount of capital stock, a certificate of the proceedings, showing a com- pliance with these provisions, the amount of the capital actually paid in, and the amount to which the capital stock is to be increased or reduced, shall be made out, signed, and verified by the affi- davit of the chairman and secretary of the meet- ing, certified by a majority of the directors, and filed as required by the second section of this act. When so filed the capital stock of the corpora- tion shall be increased or reduced to the amount specified in the certificate. Sec. 4. This act shall take effect from and after its passage. [Approved February 21, 1872.] The original act, of which this is an amend- ment, is incorporated in the provisions of the code relating to savings and loan corporations. APPENDIX. 721 An Act providing for the dissolution and winding up of savings banl^s, trust companies, and banks of deposit, and providing for tlie dispo- sition of all funds deposited therein and not claimed within five years after such banlvs have ceased to do business, or after the com- mencement of proceedings to dissolve. [Approved March 31, 1891; Stats. 1891, p. 271.] § 1. Right to dissolve savings banks, etc. § 2. Dissolved savings bank fund. , § 3. How drawn upon. § 4. When same escheats. § 5. Attorney general empowered to bring actions. § 6. Investment of funds. § 7. Bonds purchased. § 8. To sell bonds to meet payments. Section 1. That any savings bank or tru.st com- pany or bank of deposit heretofore created or which may be hereafter created shall have the right, on application to the stockholders or mem- bers to the Superior Court of the county wherein its principal place of business is situated, to dis- solve said corporation in the manner provided for in title six, part three, of the Code of Civil Pro- cedure. Sec. 2. It is hereby made the duty of every per- son or corporation holding funds of any savings bank or trust company or bank of deposit, at the end of five years from and after such bank has ceased to receive deposits or do business, to pay the same into the State treasury, which money shall be held in the State treasury in a fund which is hereby designated as "The Dissolved Savings Bank Fund"; and at the same time it shall be the duty of such person or corporation to furnish to the State controller a list of the names of all de- Civ. Code— 61 722 APPENDIX. positors to wliom mud moneys beloug or to wliom said bauk owes the same. Sec. o. The mouej' in said "The Dissolved Sav- ings Banli Fund" may be drawn out on the war- rants of the State controller, issued on proofs of ownership, approved and allowed by the State board of examiners. Sec. 4. All moni^ys paid into the said "The Dis- solved Savings Bank Fund" uncalled for within five years after being paid in shall escheat to the State, and thereafter only drawn out in such man- ner as now provided for hy law for the estates of deceased persons escheated to this State. Sec. 5. That any person or corporation failing to comply with the provisions of this act shall be liable to the State of California for the amount of money so retained by tliem contrary to the pro- visions of the first four sections of this act; and the attorney general of this State is hereby au- thorized, empowered, and directed to bring action, in the name of the people of the State of Califor- nia, in such manner and upon the same terms as now provided for escheated estates, to recover judgment for said money, and when so recovered, to be paid into the State treasury and held subject to the provisions of this act; provided, that said fund shall be liable for the expense of the recovery of the same, to be paid out upon demands audited bv the State board of examiners. Sec. 6. Whenever and as often as there is in the State treasury to the credit of the said "The Dis- solved Savings Bank Fund" the sum of ten thou- sand dollars, the State board of examiners must invest the same in civil ftinded bonds of this State, or in bonds of the Ignited States, or in bonds of the several cotmties of this State; the investments to be made in such manner and upon such terms as the board shall deem for the best interests of the said "The Dissolved Savings Bank Fund"; pro- APPENDIX. 723 vided, that no bonds of any counties shall be pur- chased of which the debt, debts, or liabilities at the time exceed fifteen per cent, of the assessed value of the taxable property of said county. Sec. 7. All bonds purchased by the board under the provisions of this act must be delivered to the State treasurer, who shall l^eep them as a portion of said "The Dissolved Savings Banli Fund," the interest upon such bonds to be placed by him to the credit of said fund. Sec. 8. Whenever the moneys on hand in the State treasury, to the credit of the said "The Dis- solved Savings Bank Fund" is not sufficient to pay the claims allowed by the State board of ex- uniiners against said fund, it shall be the duty of said board to sell such bonds belonging to said fund as they may deem proper, for the purpose of providing funds for the payment of such claims so allowed by them. Sec. 9. This act shall talie effect from and after its passage. BENEFIT SOCIETIES. An Act relating to mutual beneficial and relief associations. [Approved March 28, 1874; 1873-4, 745.] § 1. Mutual beneficial and relief associations. § 2. How formed. § 3. Powers. § 4. Idem. § 5. By-laws. § 6. Old associations. Mutual beneficial and relief associations. Section 1. Associations may be formed for the purpose of paying to the nominee of any member a sum upon the death of said member, not exceed- ing three dollars for each member of such asso- 724 APPENDIX. elation. No such association shall exceed in num- ber one thousand persons. How formed. Sec. 2. Such association shall be formed by fil- ing a verified certificate in the office of the clerk of the county in which the principal place of busi- ness shall be situated, and filing a like certificate in the office of the secretary of the State; such certificate shall state the general objects of the association, its principal place of business, and the names of the officers selected to hold office for the first three months, and shall be signed by said officers, and verified by at least three of them. Powers. Sec. 3. Said associations, upon the death of each member, may levy an assessment upon each member living at the time of the death, not ex- ceeding three dollars for each member, and collect the same, and pay the same to the nominee of such deceased: and may also provide the payment of such annual payments of members as may be deemed best. Such annual assessment upon any one member not to be raised above the annual assessment established at the time such member joins such association. Same. Sec. 4. Such association, by its name, may sue and be sued, and may loan such funds as it may have on hand, and may own sufficient real estate for its business purposes, and such other real es- tate as it may be necessary to purchase on fore- closure of its mortgages; provided, such real es- tate so obtained through foreclosure shall be sold and conveyed within five years from the day title is obtained, unless the Superior Court of the proper county shall, upon petition and good cause shown, extend the time. [Amendment approved April G. 18S0; Amendments 1880. 2.5 (Ban. ed. 128). Took effect immediately.] APPENDIX. 725 By-laws. Sec. 5. Such association may make such by- laws, not inconsistent with the laws of this State, as may be necessary for its goyernment, and for the transaction of its business, and shall not be subject to the provisions of the general insurance laws. Old associations. Sec. 6. All associations heretofore formed for the objects contemplated by this act, and now in operation, may avail themselves of its provisions by filing the certificate provided for in section one: provided, that such society shall not have greater membership than three thousand. Sec. 7. This act shall take effect immediately. BOARDS OF TRADE: See post, p. 730. BONDS. An Act to facilitate the giving of bonds required by law. [Approved March 12, 1SS5; 1885, 114.] § 1. Incorporation for giving bonds. § 2. W'hen corporation not accepted. § 3. Duty of insurance commissioner. Incorporations for giving bonds. Section 1. Whenever any person who now or hereafter may be required or permitted by law to make, execute, and give a bond or undertaking, with one or more sureties, conditioned for the faithful performance of any duty, or for the doing or not doing of anything in said bond or under- taking specified, any head of department, board, court, judge, officer, or other person who is now or shall hereafter be required to approve the suffi- 726 APPENDIX. cieney of any sucli boud or imdertakiug, or the sureties thereon, may accept as sole and suthcient suretj' on such boud or undertaking, any corpora- tion incorporated under the hiws of any State of The United States for the purpose of making or guaranteeing bonds and undertakings required by law, and which shall have complied with all the requirements of the laws of this State regulating the admission of such corporation to transact such business in this State; and all such corporations are hereby vested with full power and authority to make and guarantee such bonds and undertak- ings, and shall be subject to all the liabilities ami entitled to all the rights of natural persons sure- ties. When corporation not accepted. Sec. 2. It is further provided that the guaranty of any such company shall not be accepted by heads of departments or others, as provided in section one of this act, whenever its liabilities shall exceed its assets, as ascertained in the man- ner provided in section three of this act. Duty of insurance commissioner. Sec. 3. Whenever the liabilities of any such company shall exceed its assets, the insurance commissioner shall require the deficiency to be paid up within sixty days, and if it is not so paid up, then he shall issue a certificate showing the extent of such deficiency, and he shall publish the same once a week for three weeks in a daily San Francisco paper, and thenceforth, and until such deficiency is paid up. such company shall not do business under the provisions of this act. And in estimating the condition of any such company, under the provisions of this act, the commissioner shall allow as assets only such as are author- ized under existing laws at the time, and shall charge as liabilities, in addition to eighty per cent. of the capital stock, all outstanding indebtedness APPENDIX. 727 I'i the compauy. and a premium reserve equal to lilty per eeutum of the premiums charged by said company on all risks then in force. Nothing herein contained shall apply to bonds given in criminal cases. »Sec. 4. This act shall take effect immediately. BUILDING AND LOAN ASSOCIATIONS. An Act creating a board of commissioners of the building and loan associations and prescribing their duties and powers. [Approved March 23, 1893; Stats. 1893, p. 229.] § 1. Board of commissioners. § 2. Salaries. § 3. Office, rent, stationery, etc. § 4. Bond. § 5. Duties of— Report. § 6. Visiting associations. § 7. Duties of associations. § 8. Powers of. § 9. Duty of attorney general— Receivers. § 10. Failure to report to attorney general. § 11. Scliedule of property. § 12. Examining accounts of receivers. § 13. Investigation of affairs. § 14. Violation laws relating to corporations. § 15. Associations to pay assessment. § 16. How collections maj^ be enforced. § 17. Licenses. § 18. Report to commissioners. § 19. Withdrawal of stockholders. § 20. "Building and loan association." what includes. Section 1. All building and loan associations heretofore or hereafter incorporated under the laws of this State, or any other State or territory, or those of any foreign country, and doing busi- ness in this State, shall be subject to the exam- ination and supervision of a board of commis- sioners of loan associations, which board shall consist of two commissioners, each of whom shall 728 APPENDIX. be an expert of accounts, and shall be appointed by the governor, within thirty days after the passage of this act, to hold office for the period of four years, and until their successors are ap- pointed and qualified. Sec. 2. The commissioners shall each receive a salary of twenty-four hundred dollars per annum and necessary traveling expenses, not to exceed for the two commissioners and their secretary, the sum of seven hundred dollars per annum. Said commissioners are hereby authorized to appoint a secretary at a salary not to exceed twelve hun- dred dollars per annum, who shall have power to examine the books and affairs of the associations, the same as the commissioners. All said salaries and traveling expenses shall be audited by the State controller and paid in the same manner as the salaries of other State officers. [Amend- ment approved March 26, 1895; Stats. 1895, p. 103.] Sec. 3. The commissioners shall have their of- fice in San Francisco, which office shall be kept open for business every business day, and during such hours as are commonly observed by the banks of that city as banking hours. They shall procure rooms for their office at a monthly rental not exceeding forty dollars. They may also provide fuel, stationery, printing, and other necessary conveniences connected with their of- fice, not to exceed an aggregate cost of four hun- dred dollars per annum. All expenses authorized in this section shall be audited and paid in the same manner as the salary of the commissioners. [Amendment approved March 26, 1895; Stats. 1895, p. 103.] Sec. 4. The commissioners, before entering up- on the duties of their office, must each execute an official bond in the sum of five thousand dollars, nnd take the oath of of?iCe as prescribed by the Political Code for State officers in general. The APPENDIX. 729 secretary appointed by said commissioners shall execute a boud in the sum of two thousand dol- lars, and take the oath of office as prescribed by said Political Code. [Amendment approved March 20, 1895; Stats. 1895, p. 103.] Sec. 5. The duties of the commissioners of building and loan associations shall be to furnish all corporations legally authorized to transact the business of a building and loan association within This State a license authorizing them to transact the business of a building and loan association for one year from the date of said license; to re- ceive and place on file in their office the annual reports required to be made by building and loan associations by this act; to supply each associa- tion with blanli forms and such statements as the commissioners may require; to make, on or before the first day of October of each year, a tabulated report to the governor of this State, showing the condition of all institutions examined by them. Avith such recommendations as they may deem proper, accompanied by a detailed statement, veri- fied by oath, of all moneys received and expended by them since their last report. [Amendment ap- proved March 20, 1895; Stats. 1895. p. 10.3.] Sec. 6, The commissioners shall visit, once in every year, and as much oftener as they may rleem expedient, every building and loan associa- tion doing business in this State. At such visits, they shall have free access to the vaults, books, and papers, and shall thoroughly inspect and ex- amine all the affairs of each of said corporations, and make such inquiries ns may be necessary to ascertain its condition and ability to fulfill all Its f'ngagements, and whether it has complied with the provisions of law governing such associations: they shall preserve in a permanent form a full record of their proceedings, including a statement of the condition of each of said corporations. 730 APPENDIX. which shall be open to the iuspectiou of the public during their office hours. Sec. 7. To facilitate the examinations of the commissioners, as specified in the foregoing sec- tion, every association shall keep a book of rec- ords, written in ink, showing the appraised values of the real estate security held in connection with each loan, and signed in each case by the ap- praiser or officer or committee of the association making such estimate value. The commissioners shall have power to order a revaluation of the se- curities of any building and loan association when they deem it necessary, and may, for that purpose, appoint local appraisers at the expense of such association, the total expense of such appraise- ment not to exceed two dollars and fifty cents for each property examined and appraised. Each appraiser shall make a sworn report to the com- missioners of the appraised values of all property examined. [Amendment approved March 20, 1895; Stats. 1895, p. 103.] Sec. 8. Either of the commissioners may sum- mon all trustees, officers, or agents of any such corporation, and such other witnesses as he thinks proper, in relation to the affairs, transactions, and condition of the corporation, and for that purpose may administer oaths; and whoever refuses, with- out justifiable cause, to appear and testify, when thereto required, or obstructs a commissioner in the discharge of his dtity, shall be punished by a fine not exceeding one thousand dollars, or im- prisonment not exceeding one year, or by both such fine and imprisonment. Sec. 9. If the commissioners, upon examina- tion of any corporation under their supervision, find that such corporation has been violating the provisions of law governing such associations, or is conducting its business in an unsafe manner, such as to render its further proceeding hazar- APPENDIX. 731 dous to tbe public or to those having funds in its '•ustody, they shall notify the attorney general of such facts, and the attorney general, in his discre- tion, maj^ apply to the judge of the Superior Court of the county in which such corporation is doing I'usiness to issue an injunction restraining such 'jorporation, in whole or in part, from further pro- ceeding with its business until a hearing can be liad. Such judge may, in such application, issue such injunction, and, after a full hearing, may dissolve or modify it, or mal^e it perpetual, and may make such orders and decrees, according to The course of proceedings in eqtiity, to restrain or ]>rohibit the further prosecution of the business of the corporation, as maybe needful in the premises; and may appoint one or more receivers to take possession of its property and effects, subject to -iich direc lions as may from time to time be pre- ' L'ibed by the court. Sec. 10. And if either of the commissioners, having knowledge of the insolvent condition, or any violation of law, or unsafe practice of any association under their stipervision, such as ren- ders, in their opinion, the conduct of its business hazardous to its shareholders or depositors, and -hall fail to report the same in writing to the at- torney general, as required by this act, then such 'ommissioner, on conviction thereof, shall be pun- ished by a fine of not less than five thousand dol- lars nor more than ten thousand dollars, or by im- prisonment in the county jail not less than one year nor more than two years, or by both such fine and imprisonment; and his office shall be de- •"■lared vacant by the governor, and a successor appointed to fill his unexpired term. Sec. 11. When receivers are so appointed, the secretary of the corporation shall make a schedule of all its property, and its secretary, board of in- vestment, and other officers transferring its prop- 732 APPENDIX. eity to the receivers, shall make oath that said schedule sets forth all the property which the cor- poration owns, or is entitled to. The secretary • shall deliver said schedule to the receivers, and a copy thereof to the commissioners, who may at any time examine, under oath, such secretary,, board of investment, or other officers, in order to determine whether or not all the property which the corporation owns, or is entitled to, has been transferred to the receivers. Sec. 12. The commissioners, or one of them, shall, at least once in each year, and as much oftener as they may deem expedient, examine the accounts and doings of all such receivers, and shall carefully examine and report upon all ac- counts and reports of receivers made to the proper court and referred to the commissioners by the court, and, for the purposes of this section, shall have free access to the books and papers relating to the transactions of such receivers, and may ex- amine them under oath relative to such trans- actions. Sec. 13. Upon the certificate, under oath, of any five or more officers, trustees, creditors, sharehold- ers, or depositors of any such corporation, setting forth their interest and the reasons for making such examination, directed to the commissioners, and requesting them to examine such corporation, they shall forthwith make a full investigation of its affairs, in the manner provided. Sec. 14. The commissioners, if in their opinion any such corporation or its officers or trustees have violated any law in relation to such corpora- tions, shall forthwith report the same, with such remarks as they deem expedient, to the attorney general, who shall forthwith institute a prosecu- tion for such violation, in behalf of the people of the State. Sec. 15. To meet the expenses provided by this APPENDIX. 733 Act, every building aud loan association, or corpo- ration or association doing business on the build- ing and loan plan, shall pay, in advance, to the commissioners, its pro rata amount of such ex- penses, to be determined by an assessment levied on the shares of each of such associations in force on the thirty-first day of December, eighteen hun- dred and ninety-two, pro rata, according to the par value of such shares; and annually thereafter the said commissioners shall levy, in a like manner, and collect in advance, a lil^e assessment on the shares of all such associations in force as per re- port, herein provided for, to be made to said com- missioners, of the condition at the close of business (m December thirty-first of each year; provided, however, that no association shall pay less than ten dollars per annum; and all associations here- after organized shall each pay to the commission- ers for their licenses not less than one dollar per month for the term expiring December thirty-first succeeding, dating from the time of application for license. [Amendment approved March 2G, 1895; Stats. 1895, p. 103.] Sec. 16. The collection of all moneys assessed, as herein provided, for the annual expenses, or for- feitable as fines for failure to mal^e reports as herein specified, and due from any corporation or association coming within the provisions of this act, may be enforced by an action instituted in any court of competent jurisdiction, and all moneys collected or received by the said commis- sioners under this act shall be deposited with the State treasurer, to the credit of a fund to be Ivnown and designated as the "Building and Loan Association Inspection Fund." Sec. IT. No association shall transact business in this State without first procuring from the com- missioners of building and loan associations a cer- tificate of authoritj' or license to do so. To pro- Civ. Code— 62 734 APPENDIX. cure such authority it must file with the said com- missioners a certified copy of its articles of incor- poration, constitution, and by-laws, and all other printed rules and regulations relating to its meth- ods of conducting business, and of all subsequent amendments or changes thereto, and otherwise comply with all requirements of law. No associa- tion, after the expiration of the term for which a license has been granted to it by the commission- ers of building and loan associations, shall con- tinue to transact the business of a building and loan association without first procuring from said commissioners a renewal of such license on the terms provided for in this Act; and any corpora- tion violating this provision shall forfeit the sum of ten dollars per day during the continuance of the offense; and any violation of this section by any officer of such association shall be a misde- meanor. The commissioners are authorized and empowered to revoke the license of any associa- tion under their supervision, the solvency whereof is imperiled by losses or irregularities; and the commissioners immediately upon revoking such li- cense shall report the facts to the attorney gen- eral, who shall thereupon take such proceedings as is provided by section nine of this Act, [Amendment approved March 20. 1S9.">: Stats. 1895, p, 103,] Sec, 18, Every building and loan association doing business in this State shall, once in every year, to-wit, within thirty days after the expiration of its annual fiscal term, make a report, in writing, to the Commissioners of Building and Loan Associations, verified by the oath of its president and secretary show- ing accurately the financial condition of such association at the close of said term. The report shall be in such form as the Commissioners shall l>rescribe. upon blanks by thorn furnished for that APPENDIX. 785 purpose, and shall specify the following particu- lars, namely: Name of the corporation, place where located, authorized capital stock, amount of stock paid in, the names of the directors, the amount of capital stock held by each, the amount due to shareholders, the amount and character of all other liabilities, cash on hand, and the number and value of shares in each and every series of stock issued by the association. All money re- ceived or disbursed by such association shall he duly accounted for. Any association failing to lile the annual report within the time specified herein, shall be subject to a penalty of ten dollars per day for each and every day such report shall be delayed or withheld. [Amendment approved March 26, 1895; Stats. 1895, 103.] Sec. 19. Stockholders desiring to withdraw from any association, or to surrender a part or all of their stoclv, shall have power to do so by giving thirty days' notice in writing of such intention to withdraw. On the expiration of such notice, the stockholder so withdraAving shall be entitled to receive the full amount paid in by him or her, to- gether with such proportion of the earnings there- on as the by-laAvs may provide, or as may have been fixed by the board of directors; provided, that not more than one-half of the monthly re- ceipts in any one month shall be applied to with- drawals for that month, without the consent of the board of directors, and no shareholder shall be permitted to withdraw, whose stock is pledged as security to the association for a loan until such loan is fully paid. Such withdrawals shall be paid in succession, in the order that the notices are given. Sec. 20. The name "Building and Loan Associ- ation," and all reference to the same as "associa- tion" or "associations," as used in this act, shall include all corporations, societies, or organizations. 736 APPENDIX. investment companies, or associations, whether or- ganized in this State or represented by agents, doing a savings and loan or investment business, and which are not under the direct supervision of the Banlj: Commissioners or the Insurance Com- missioner, and whether issuing certificates of stock which mature at a time fixed in advance or not, and shall also include any association or com- pany which is based on the plan of building and loan associations, and which contains features similar to such associations; and said Commis- sioners are hereby vested with the power of de- termining whether such association or associations contain such features as are based on plans simi- lar to those of building andjoan associations, and whether they properly come within the purview of this act. [Amendment approved March 26, 1895; Stats. 1895, 103.] Sec. 21. All acts or parts of acts in conflict with the provisions of this act are hereby repealed. Sec. 22. This act shall take effect and be in force from and after its passage. CEMETERIES. Act authorizing incorporation of rural cemetery corporations: See act of April 28, 1859; Stats. 1859. p. 267; and Amendments 1863-4, p. 12; 1891, p. 264. APPENDIX. 737 CHAMBERS OF COMMERCE. A.n Act to provide for the formation of cb ambers of commerce, boards of trade, mechanic insti- tutes, and other liindred protective associa- tions. [Approved March 31, 1866; 1865-6, 469.] § 1. Corporations may be formed. § 2. Certificate of incorporation. § 3. Certified copy shall be evidence. § 4. Corporations, rights and powers. § 5. Stock and certificates. § 6. Trustees, etc. § 7. Real and personal estate. § 8. By-laws. § 9. Meetings. § 10. Power to levy assessments. § 11. Existing corporations. Corporations may be formed. Section 1. That corporations for the formation and organization of chambers of commerce, boards of trade, mechanic institutes, and other associa- tions for the extension and promotion of trade and commerce, or the advancement, protection, and improvement of tlie mechanic arts and sciences, may be formed and organized according to the provisions of this act, and such corporations and the members thereof shall be subject to the liabil- ities herein imposed, and to none other. Certificate of incorporation. Sec. 2. Any twenty or more persons who may desire to form a corporation for either of the pur- poses specified in the preceding section shall make, sign, and acknowledge, before some officer conipe- petent to take acknowledgment of deeds, and file in the otlice of the county clerk of the county in which the principal place of business of the com- pany is intended to be located, and a certified 738 APPENDIX. copy thereof in the office of the Secretary of State, a certificate iu writing, in which shall be stated the corporate name of the corporation, the object for which the corporation shall be formed, the time of its existence, not to exceed fifty years, and the name of the city or town, and county, in which the principal place of business of the cor- poration is to be located. Certified copy shall be evidence. Sec. 3. A copj^ of any certificate of incorpora- tion filed in pursuance of this act, and certified by the County Cleric: of the county in which it is filed, or his deputy, or by the Secretary of State, shall be received in all courts, actions, proceed- ings and places, as presumptive evidence of the facts therein stated. Corporation — liights and powers. Sec. 4. When the certificate provided for in sec- tion two of this act shall have been filed as there- in provided, the persons who shall have signed and aclinowledged the same, and such persons as shall thereafter become their associates or suc- cessors, shall be a body politic and corporate, and by their corporate name have succession for the period limited and power: 1. To sue and be sued iu any court; 2. To malie and use a common seal, and to alter the same at pleasure; 3. To lease, purchase, hold, sell, mortgage, con- vey in trust, convey, release from trust or mort- gage, such real and personal estate as hereinafter provided in this act; 4. To elect or appoint such officers, agents, and servants as the business of the corporation shall require; 5. To make by-laws, not inconsistent with the laws of this State, providing for the organization of the corporation and the management of its af- fairs. APPENDIX. 739 Stock and certificates. Sec. 5. Corporations formed under this act may have a capital stocli, and may issue certificates to represent shares of such capital stocl^; provided, that the certificate directed in the second section of this act to be executed and tiled shall contain a statement of the amount of such capital stock and the number of shares into which it is divided; and provided, further, that the rights and privi- leges to be accorded to stockholders, as distinct from those to be accorded to members at large of the corporation, and the obligations to be imposed upon stockholders in the same relation, shall be fixed and established in the by-laws of each of such corporations. Trustees, etc. Sec. G. Corporations formed under this act may confer upon a board of trustees or directors, or upon a body to be styled the executive committee of the corporation, the right to exercise all or any portion of the corporate powers of the corporation; provided, that the certificate directed by the sec- ond section of this act to be executed and filed in those cases in which the right to exercise the cor- porate powers is confined to a board of trustees or directors, or to a body to be styled the executive committee of the corporation, shall state the fact, and also whether the right is limited or otherwise: and in such corporations the said certificate shall also state the number of such trustees or directors. or committee, and the names of those who shall have been selected to manage the affairs of the corporations for the first six months. Real and personal estate. Sec. 7. Corporations formed under the provi- sions of this act shall be capable in law to lease, purchase, have, hold, use, take possession of. and enjoy, in fee simple or otherwise, any personal or real estate within this State necessary for the uses and purposes of such corporation, and the 740 APPENDIX. same to sell, lease, deed in trust, alien, and dis- pose of at their pleasure. All real estate owned by tlie corporation shall be held in the name of the same, and al conveyances made by such corpo- ration shall be signed by the president and secre- tary, and attested by the corporate seal; provided, that no corporation formed under this act shall engage in any mercantile, commercial, or mechani- cal business. [Amendment approved March 10, 1S85; Statutes and Amendments 1885, 7G; took ef- fect from passage; repealed conflicting acts.] Act to defective acknowledgments taken under this act: See ante. Appendix, title Acknowledg- ments. By-laws. Sec. 8. The by-laws of all corporations formed under the provisions of this act without capital stock shall prescribe how members of the corpo- ration shall be admitted, and how expelled, and how officers, agents, and servants shall be elected or appointed; and such provisions in the by-laws of any such corporation shall have full force and effect as between private parties and said corpo- ration. Meetings. Sec. 9. Corporations formed under the provi- sions of this act shall determine by their by-laws the manner of calling and conducting their meet- ings, the number of members that shall constitute a quorum, the manner of levying and collecting assessments, the officers of the same, and the man- ner of their election or appointment, and their tenure of office; and may prescribe suitable pen- alties for the violation of their by-laws, not ex- ceeding in any case one hundred dollars for any one offense. Power to levy assessments. Sec. 10. Corporations formed under the provi- sions of this act having no board of trustees, or I APPENDIX. 741 directors, or exec-utive committee, shall have pow- er to levy aud collect from the members thereof, for the purpose of paying the proper and legal ex- penses of such corporation, assessments in the manner which may be prescribed by the by-laws of such corporation, and not otherwise. Existing corporations may tal^e benefit of this act. Sec. 11. Any existing corporation, association, or institution formed for either of the purposes contemplated by this act, may, by a vote of a ma- jority of the members voting at a meeting called specially for the purpose, become entitled to the benefit of this act on filing the certificate required by this act; provided, a notice of the meeting and its object shall be published in a paper of general circulation in the county in which the principal place of business of such corporation, association, or institution is located, for at least ten days pre- vious to the day on which such meeting is to be held; and provided further, that the certificate herein provided to be filed shall be signed and ac- linowledged by at least five of the members of such corporation, association, or institution, and contain a list of the members who desire to be- come members of the corporation. And upon the filing of such certificate as provided by this act, the persons signing and acknowledging the same, and those named therein, and such persons as shall thereafter become their associates or suc- cessors, shall be a body politic and corporate, with all the powers and privileges conferred by this act. and shall thereupon succeed and become entitled to all the rights, franchises, and property of such corporation, association, or institution. Effect. Sec. 12. This act shall be in force from and after its passage; and all corporations formed under it are hereby exempted from the operation 742 APPENDIX. of all laws and parts of laws iucousisteut with its provisions. Section 7 of tlie above act contained a proviso originally limiting the amount of realty that could be held by incorporations under this statute to two hundred and fifty thousand dollars. This sec- tion was amended in 1868 by an act approved Jan- uary 14, 1868, enlarging the amount to three hun- dred and fifty thousand dollars. The amendment of 1885 removes the limit altogether. OO-OPERATIVE ASSOCIATIONS. An Act to provide for incorporation, operation, and management of co-operative associations. [Approved March 27, 1895; Stats. 1895, 221.] § 1. How formed. § 2. Rights and liabilities of members. § 3. Articles of association. § 4. By-laws, meetings, elections. § 5. By-laws to be recorded. § 6. Property is subject to execution. § 7. Business may be changed. § 8. Profits, how divided. § 9. Powers of associations. § 10. Associations may be consolidated. § 11. Associations may be dissolved. § 12. Rights of attorney general to bring suit. § 13. Act to be liberally construed. The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. It shall be lawful for five or more persons to form a co-operative association for the purpose of transacting any lawful business. Such associations shall not have or issue any capital stock, but shall issue membership certificates to each member thereof, and such membership cer- I APPENDIX. 743 tificates cannot be assigned so that the transferee thereof can by such transfer become a member of the association except by the resolution of the board of directors of the association. But by the resolution of consent of the board of directors, such certificates may be transferred, so that the transferee may become a member in lieu of the last former holder thereof. Sec. 2. In such association the rights and in- terest of all members shall be equal, and no mem- ber can have or acquire a greater interest therein than any other member has. At every election held pursuant to the by-laws each member shall be entitled to cast one vote and no more. All per- sons above the age of eighteen years, regardless of sex, shall be eligible to membership, if otherwise (lualified and elected as the by-laws may provide. The by-laws shall provide for the amount of the indebtedness which such association may incur. And no member shall be responsible individually, or personally liable, for any of the debts or lia- bilities of the association in excess of his propor- tion of such indebtedness; but in case of the fail- ure and insolvency of such association, may be re- quired to pay any unpaid dues or installments which have, before such insolvency, become due from such member to the association, pursuant to its by-laws. Sec. 3. Every association formed under this act shall prepare articles of association, in writ- ing, which shall set forth: The name of the as- sociation, the purpose for which it is formed, the place where its principal business is to be trans- acted, the term for which it is to exist (not to ex- ceed fifty years), the number of the directors thereof, and the names and residences of those selected for the first year, the amount which each member is to pay upon admission as membership fee, and that each member signing the articles has 744 APPENDIX. 1 actually paid in such sum, and that the interest and right of each member therein is to be equal. Such articles of association must be subscribed by the original associates or members, and acknowl- edged by each before some person competent to take an acknowledgment of a deed in this State. Such articles so subscribed and acknowledged shall be filed in the office of the Secretary of State, who shall furnish a certified copy thereof, which shall be filed in the office of the County Clerk of the county where the principal business of such association is to be transacted; and from the time of such filing in the office of said County Clerk the association shall be complete, and shall have and exercise all the powers for which it was formed. Sec. 4. Every association formed under this Act must, within forty days after it shall so become an association, adopt a code of by-laws for the government and management of the association, not inconsistent with this Act. A majority of all the associates shall be necessary to the adoption of such by-laws, and the same must be written in a book, and subscribed by the members adopting the same: and the same cannot be amended or modified except by the vote of a majority of all the members, after notice of the proposed amend- ment shall be given, as the by-laws may provide. Such association may, by its code of by-laws, pro- vide for the time, place, and manner of calling and conducting its meetings; the number of direc- tors, the time of their election, their term of office, the mode and manner of their removal, the mode and manner of filling vacancies in the board caused by death, resignation, removal, or other- wise, and the power and authority of such direc- tors, and how many thereof shall be necessary to the exercise of the powers of such directors, which must be at least a majority; the compensation of APPENDIX. 74& any of the directors, or of any officer; the uum- l>er of the officers, if any, other than the directors, and their term of office; the mode of removal, and the method of tilling a vacancy; the mode and manner of conducting business; the mode and manner of conducting elections, and may provide for voting by ballots forwarded by mail or other- wise; provided, the method shall secure the se- crecy of the ballot; the mode and manner of suc- cession of membership, and the qualifications for membership, and on what conditions, and when membership shall cease, and the mode and man- ner of expulsion of a member subject to the right that an expelled member shall have a right to have the board of directors appraise his interest in the association in either money, property, or labor, as the directors shall deem best, and to have the money, property, or labor so awarded him paid or delivered, or performed within forty days after expulsion; the amount of membership fee, and the dues, installments, or labor which each mem- ber shall be required to pay or perform, if any. and the manner of collection or enforcement, and for forfeiting or selling of membership interest for nonpayment or nonperformance; the method, time, and manner of permitting the withdrawal of a member, if at all, and how his interest shall be ascertained, either in money or property, and with- in what time the same shall be paid or delivered to such member; the mode and manner of ascertain- ing the interest of a member at his death, if his legal representatives or none of them desire to succeed to the membership, and whether the same shall be paid to his legal representatives in money, or property, or labor, and within what time the same shall be paid, or delivered, or performed: such other things as may be proper to carry out the purpose for which the association was formed. Sec. 5. The by-laws and all amendments must Civ. Code-63 74ij APPENDIX. be recorded in a book uud kept iu the office of the association, and a copy, certified by the directors, must be filed in the office of the County Clerk where the principal business is transacted. Sec. 6. The property of such association shall be subject to judgment and execution for the law- ful debts of the association. The interest of a member in such association, if sold upon execution or any judicial or governmental order whatever, cannot authorize the purchaser to have any right except to succeed, as a member iu the association, with the consent of the directors, to the rights of the member who&e interest is thus sold. If the directors shall choose to pay or settle the mat- ter after such sale, they may either cancel the membership, and add the interest thus sold to the assets or common property of the association, or re-issue the share or right to a new member upon proper payment therefor, as the directors may de- termine. Sec. T. The purpose of the business may be altered, changed, modified, enlarged, or dimin- ished by a vote of two-thirds of all the members, at a special election to be called for such purpose, of which notice must be given the same as the by- laAVS shall provide for election of directors. Sec. 8. The by-laws shall provide for the time and manner in which profits shall be divided be- tween the members, and what proportion of the profits, if any, shall be added to the common prop- erty or funds of the association. But the by-laws may provide that the directors may suspend or pass the payment of any such profit, or install- ment of earnings, at their discretion. Sec. 9. Every association formed under this act shall have power of succession by its associate name for fifty years; to, in such name, sue and be sued in any court; to make and use a common seal, and alter the same at pleasure: to receive by APPENDIX. 747 gift, devise, or yurchaye, bold, and convey n-al and personal property, as the purposes of the as- sociation may require; to appoint such subordi- nate agents or otticers as the business may re- quire; to admit associates or members, and to sell or forfeit their interest in the association for de- fault of installments, or dues, or work, or labor required, as provided by the by-laws; to enter into any and all lawful contracts or obligations essen- tial to the transaction of its affairs, for the pur- pose for which it was formed, and to borrow money, and issue all such notes, bills, or evidences of indebtedness or mortgage as its by-laws may provide for; to trade, barter, buy, sell, exchange, and to do all other things proper to be done for the purpose of carrying into effect the objects for which the association is formed. Sec. 10. Two or more associations formed and existing under this act may be consolidated to- gether, upon such terms and for such puriwses, and by such name, as may be agreed upon, in writing, signed by tAVO-thirds of the members of each such association. Such agreement must also state all the matters necessary to articles of asso- ciation, and must be acknowledged by the signers before an officer competent to take an acknowledg- ment of deeds in this State, and be filed in the of- fice of the Secretary of State, and a certified copy thereof be filed in the office of the County Clerk of the county where its principal business is to be transacted; and from and after the filing of such certified copy, the former associations comprising the component parts shall cease to exist, and the consolidated association shall succeed to all the rights, duties, and powers of the component as- sociations, and be possessed of all the rights, du- ties, and powers prescribed in the agreement of consolidated association not inconsistent with this act, and shall be subject to nil the liabilities .ind 748 APPENDIX. obligations of the former component associations, and succeed to all the property and interests there- of, and may make by-laws and do all things per- mitted by this act. Sec. 11. Any association formed or consolidated under this act may be dissolved and its affairs wound up voluntarily by the written request of two-thirds of the members. Such request shall be addressed to the directors, and shall specify rea- sons why the winding up of the affairs of the as- sociation is deemed -advisable, and shall name three persons who are members to act in liquida- tion and in winding up the affairs of the associa- tion, a majority of whom shall thereupon have full power to do all things necessary to liquida- tion; and upon the filing of such request with the directors, and a copy thereof in the office of the County Clerk of the county where the principal business is transacted, all power of the directors shall cease and the persons appointed shall pro- ceed to wind up the association, and realize upon its assets, and pay its debts, and divide the resi- due of its money among the members, share and share alike, within a time to be named in said written request, or such further time as may be granted them by two-thirds of the members, in writing, filed in the office of said County Clerk; and upon the completion of such liquidation the said association shall be deemed dissolved. No receiver of any such association, or of any prop- erty thereof, or of any right therein, can be ap- pointed by any court, upon the application of any member, save after judgment of dissolution for usurping franchises at the suit of the State of California by its Attorney General. Sec. 12. The right of any association claiming to be organized under this act to do business may be inquired into by quo warranto, at the suit of APPENDIX. 749 the Attorney Genenil of this State, but not other- Arise. Sec. 13. This act being passed to promote asso- ciation for mutual welfare, the words "lawful business*' shall extend to every kind of lawful ef- fort for business, educational, industrial, benevo- lent, social, or political purposes, whether con- ducted for profit or not, and this act shall not be strictly construed, but its provisions must at all times be liberally construed, Avith a view to efifect its object and to promote its purposes. Sec. 14. This act shall tal^e effect immediately. An Act to define co-operative business corpora- tions and to provide for the organization and government thereof. [Aproved April 1, 1878; 1877, 883.] Co-operative business corporation defineil. Section 1. A co-operative business corporati ante, p. 719, title Bonds. An Act to provide for the payment of the wages of mechanics and laborers employed by corpora- tions, § 1. Wages paid monthly, § 2. Nonpayment, rights on. Section 1, Every corporation doing business in this State shall pay the mechanics and laborers employed by it the wages earned by and due them Aveelvly or monthly, on such day in each week or month as shall be selected by said corporation. Sec, 2. A violation of the provisions of section one of this act shall entitle each of the said me- chanics and laborers to a lien on all the property of said corporation for the amount of their wages, which lieu shall take preference over all other liens, except duly recorded mortgages or deeds of trust; and in any action to recover the amount of such wages or to enforce said lien, the plaintiff shall be entitled to a reasonable attorney's fee, to be fixed by the court, and which shall form part of the judgment in said action, and shall also be entitled to an attachment against said property, f A]>proved March 31. 1891; Stats. 1891, 195,] APPENDIX. All Act requiring every corporatiuu doiug business in this State to pay their employes, and each of them, at least once in each and every mouth, the wages earned by such employe; to limit the defenses which may be set up by such corporation to assignments of wages, set-off or counter claims, or the absence of such em- ploye at the time of malting payment, and in case of such absence the wages are payable upon demand; to prohibit assignments of wages for the purpose of evading the provi- sions of this act and agreements to accept wages at longer periods than as herein pro- vided as a condition of employment; to fix a penalty for this violation of the provisions of this act by such corporation, and to provide for the disposition of any fines recovered from corporations violating the same. [Approved March 29, ISO"; Stats. 1897, c. 170.] § 1. Corporation must pay wages monthly. S 2. Lien in case of failure. § 3. Defenses. § 4. Assignment of wages. § 5. Agreement as to wages. § 6. In what money wages payable. § 7. Penalty. The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. Every corporation doing business in this State shall pay, at least once a month, each and every employe employed by such corporation, in transacting or carrying on its business, or in the performance of labor for it, the wages earned by such employe during the preceding mouth; pro- vided, however, that if at the time of payment any employe shall be absent, or not engagen. and as hereinafter provided. [Amendment, approve*! April 1. 1897; Stats. 1S07. c. 2G5.] Sec. 8. Any such corporation, having a paid-up capital in excess of two hundred and fifty thous- ;»nd dollars, may be permitted by the Board of Civ. Code— 54 758 APPENDIX. Bank Commissioners to mortgage any improved and productive real estate owned by it, in excess of said amount, to tlie Treasurer of State, for such sum as tlie said board may determine; and such mortgage may be deposited with said Treas- urer, and, when so deposited, it shall be included in the amount of securities, hereinabove required to be deposited with said Treasurer for the benefit of the creditors of said corporation. Sec. 9. So long as the corporation so depositing shall continue solvent, such corporation shall be permitted to receive from said Treasurer the in- terest or dividends on said deposit; provided, how- ever, that when it shall appear to the Board of Bank Commissioners, from the semi-annual re- port of any such corporation, that the value of the personal property and cash held and possessed by such corporation, by virtue of the provisions of this act and any amendment thereof, exceeds ten times the amount of the deposit aforesaid, said iDoard shall require said corporation to forthwith increase its said deposit to the sum of five hun- dred thousand dollars in such securities. And whenever it shall appear to said board that the amount of personal property and cash so held by SiJij such corporation has been reduced below ten times the value of its original deposit above pro- vided for, and said corporation is not in any de- fault in its duties and obligations hereunder, they shall allow such corporation to reduce its said de- posit to the sum of two hundred thousand dollars, by the withdrawal of such additional deposit, until such time as an increase in its holdings shall again require an additional deposit, as hereinbefore pro- vided. Sec. 10. When any part of such deposit is made in bonds and mortgages, it shall be accompanied by full abstracts of titles and searches, and shall be examined and approved by or under the direc- APPENDIX. :.-,•» tion of the said board. The fees for an examina- tion of title by counsel, to be paid by the corpora- tion malving the deposit, shall not exceed twenty v by dtily authorized deptity, shall have the pow- er of examination into the alfairs of any domes- tic corporation doing business or claiming to do business under this act, at any time, in his discre- rion, and shall mal^e such examination at least Muce a year. Sec. 10. If the insurance commissioner, after examination of the affairs of a corporation, shall liud that such corporation is not doing its busi- ness in conformity to this act. or that it is doing a fraudulent or unlawful business, or that it is not carrying out its terms of contract, or that it can- not within three months from the date of notice of - taining such subscription, or any subscriptions to capital stock afterward authorized, must open books therefor, giving public notice thereof. 786 APPENDIX if deemed necessary by tliern in some news- paper of general circulation in the county in which the principal office of the com- pany is located; such books shall, in either case, be kept open until the amount of capital stock required shall have been subscribed. If more than the requisite amount is subscribed, the stock shall be distributed pro rata among the subscrib- ers. Any subscription may be rejected by the board of directors, or the committee thereof, or by either, as to the whole or any part thereof, and shall be, so far as rejected, without effect. [Amendment approved April 26, 1880; 1880, 229 (Ban. ed. 552). Took effect from passage; affects only corporations formed before 1873.] Return of guarantee notes. Sec. 9. Any corporation formed or existing un- der this act may, at any time, return to the mak- ers, their assigns or heirs, the guarantee notes held by said corporation; and from and after such return, or the offer thereof, made in good faith, the corporation shall not be subject to any of the obligations or burdens imposed by section ten of said act upon said corporation and in favor of the malvers of such notes. [Amendment approved April 26, 1880; 1880, 230 (Ban. ed. 523). Took ef- fect from passage; affects only corporations form- ed before 1873.] Impaired capital— Assessment. Sec. 10. Whenever, at any time, the capital of any corporation formed or existing under this act shall become impaired, it shall be the duty of the board of directors at once to levy such an assess- ment upon the capital stock, whether paid up or not, as may be necessary to make good such im- pairment; and such assessment, except as to the amoimt thereof, shall be levied and collected in the manner prescribed by sections three hundred and thirty-one to three hundred and forty-nine, in- <,'lusive, of the Civil Code of this State. Every such APPENDIX. 787 corporation may increase or diminish its capital stock in the mode and manner prescribed by sec- tion three hundred and fifty-nine of said Civil Code. [Amendment approved April 2G, 1880; 1880, 230 (Ban. ed. 52.3). Tooli effect from passage; af- fects only corporations formed before 1873.] The act of April 20, 1880, from which the fore- going three amendments were taken, contained the following- additional section: Construction of act. Sec. 4. Nothing in this act shall be construed to affect any corporation formed after twelve o'clock noon on the day upon which the Civil Code of California took effect, nor shall anything in this act be construed to revive or put in force any part of the act of which it is amendatory, be- yond what was intended should be in force by the provisions of section two hundred and eighty-eight of the Civil Code of California. An Act to provide for the organization and man- agement of county fire insurance companies. [Approved April 1, 1897; Stats. 1897, c. 271.] § 1. Incorporation of. § 2. Articles of incorporation— Certificate. § 3. Directors. § 4. Officers. § 5. Bonds. § 6. Powers— By-laws. § 7. Membership. § 8. Risks. § 9. Classifying risks. § 10. Property outside of county. § 11. Losses. § 12. Idem.— Assessments. § 13. Notice of assessments. § 14. Action of assessment. § 15. Annual statement. § 16. Withdrawal. § 17. Report of officers. § 18. Dissolution. 788 APPENDIX. The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. Any number of persons not less than twenty-five, residing in any county in this State, owning insurable property aggregating not less than fifty thousand dollars in value, which they desire to have insured, may incorporate for the purpose of mutual insurance against loss or dam- age by fire. Sec. 2. Such persons shall file with the insur- ance commissioner a declaration of their inten- tion to incorporate for the purposes expressed in section one of this Act, which declaration shall be signed by all of the incorporators, and shall con- tain a copy of the articles of incorporation pro- posed to be adopted. The insurance commissioner shall examine the proposed articles of incorpora- tion, and, if they conform to this Act, he shall de- liver to such persons a certificate permitting them to incorporate as such insurance company. Such certificate shall be directed to the clerk of the county in which such corporation is proposed to be organized, and shall contain a copy of the pro- posed articles of incorporation. Upon filing with the secretary of state, the certified copies of the duly executed articles of incorporation, as re- quired by section two hundred and ninety of the Civil Code of the State of California, and of the certificate above provided for, the secretary of state shall thereupon issue a certificate of incor- poration to such county insurance company, and, upon organizing under such articles of incorpora- tion, such county fire insurance company may carry on a fire insurance business as hereinafter provided. The articles of incorporation and the charter or certificate obtained by any county fire insurance company operating under the provisions of this Act, shall be subject to the control and modification by the legislature of the State of California, The by-laws and all amendments APPENDIX. 789 thereto shall be filed with the insurance commis- sioner within ^xty (60) days after their adoption. Sec. 3. The number of directors shall not be less than (7) seven, nor more than eleven (11), a majority of whom shall constitute a quorum to do business. These directors shall be elected from the members of the association by ballot, and shall hold office for one year, or until their suc- cessors are elected and qualified. The annual meeting of the members of the company shall be on the second Monday in January of each year. In the election of the first board of directors each member shall be entitled to one vote. At every subsequent election, every person insured shall be entitled to as many votes as there are directors to be elected, and an equal additional number for every risk or risks he holds in the company, and he may cast the same in person or by proxy, dis- tributing them among the directors to be elected, or among a less number of directors, or cumu- lating them upon one candidate, as he shall see fit. Sec. 4. The directors shall elect, from their own number, a president and a vice-president, and shall also elect a treasurer and a secretary, who may or may not be members of the company. All of such officers hold their office for one year from the date of their election, and until their succes- sors are elected and qualified. Sec. 5. The treasurer and secretary shall give bonds to the company for the faithful perform- ance of their duties, in such amounts as shall bo prescribed by the board of directors. Sec. G. Such corporation and its directors shall possess the usual powers, and be subject to the usual duties of corporations and directors thereof, and may make such by-laws, not inconsistent with the constitution and the laws of this State, as may be deemed necessary for the management of its 790 APPENDIX. affairs, in accordance with the provisions of this Act. Also to prescribe the duties of its officers and to fix their compensation, and to alter and amend its by-laws, when necessary. Sec. 7. Any person owning property in the county for which any such company is formed may become a member of such, company by in- suring therein, and shall be entitled to all the rights and privileges appertaining thereto, and no person not residing in the county in which the company is formed shall become a director of such company. Sec. 8. Such company may issue policies only on detached dwellings, schoolhouses, churches, barns (except livery barn and hotel barns), and other farm buildings, and such property as may be contained therein; also, other property on the premises owned by the insured; hay and grain in stack or in the field, and live stocli on the premises of the insured, anywhere in the county, for any time not exceeding five years, and not to extend beyond the time limited for the existence of the charter, and for an amount not to exceed four thousand five hundred dollars on any one risk; provided, that no company which has been or- ganized more than six months shall write insur- ance subject to one fire exceeding three per cent of the amount at risk upon the books of such company. All persons so insured shall give their obligation to the company, binding themselves, their heirs and assigns, to pay their pro rata share to the company of the necessary expense and of loss by fire which may be sustained by any mem- ber thereof during the time for which their re- spective policies are Avritten, and they shall also at the time of effecting the insurance pay such a percentage in cash, and such other charges, as may be required by the rules or by-laws of the company. APPENDIX. 7»1 Sec. 9. All such companies must classify tlie property insured tlierein at the time of issuing policies thereon under different rates, correspond- ing as nearly as may be to the greater or less risk from fire loss which may be attached to the sev- eral kinds of property insured. Sec. 10. No such company shall insure any property beyond the limits of the county within which the company is organized, nor shall any company issue policies of insurance on any prop- erty within the limits of any city containing over six thousand inhabitants at the time of the or- ganization of such company; provided, that no dwelling shall be insured within the corporate limits of any city or town exposed by any other building within one hundred feet, or by any other risk other than a dwelling or private barn, within two hundred feet of the risk assumed; provided, that the amount of insurance shall not exceed seventy-five per cent of the value of the property and that no additional insurance shall be allowed. Sec. 11. Every member of such company who may sustain loss or damage by fire shall imme- diately notify the president, or in his absence, the secretary thereof, stating the amount of damages or loss sustained or claimed, and if not more than two hundred dollars, then the president and secre- tary shall proceed to ascertain the amount of such loss or damage, and adjust the same. If the claim for damage or loss be an amount greater tlian two hundred dollars, then the president of such com- pany, or in his absence, the vice-president, or in the absence of both, the secretary thereof, shall forthwith convene the board of directors of such company, whose duty it shall be when convened to appoint a committee, of not less than three disinterested members of such company, to ascer- tain the amount of such damage or loss. If in either case there is a failure of the parties to agree 792 APPENDIX. upon the amount of such damage or loss, they shall submit the question of the amount of such loss to arbitration. The president of the company shall appoint one disinterested person to act as an arbitrator, and the claimant or insured shall ap- point another, and if such two arbitrators fail to agree upon the amount of such loss, then they shall select a third disinterested person to act with them. Such arbitrators so appointed shall have full authority to examine w^itnesses, and to do all other things necessary to the proper determina- tion of the amount of loss sustained by the claim- ant, and shall make their award in writing to the president of such company, and such award so as aforesaid made shall be final as to the amount of the loss sustained. The pay of the said committee shall be three ($3.00) dollars per day for each day's services so rendered, and five cents for each mile necessarily traveled in the discharge of their duties, which shall be paid by the claimant, unless the award of such committee shall exceed the sum offered by the company in liquidation of such loss or damage, in which case such expense shall be paid by the company. Sec. 12. When the amount of any loss shall have been ascertained, which exceeds in amount the cash funds of the company, the president shall convene the directors of said company, who shall make an assessment upon all the property to tlie amount for which each several piece of property is insured, taken in connection with the rate of premium under which it may be classified. Sec. 13. It shall be the duty of the secretai-y, whenever such an assessment shall have been made, to immediately notify every person holding a risk in such company, personally, by an agent. or by letter directed to his usual postoffice address, of the amount of such loss, and the sum due from APPENDIX. 79:? liim, as his share thereof, and of the time and to whom such payment is to be made; but such time shall not be less than thirty days, nor more than ninety days, from the date of such notice. Sec. 14. An action may be brought a^Minst any member of such company who shall neglect or re- fuse to pay any assessment made upon him by the provisions of this act, or other liabilities due the company, and the directors of any company so formed who shall willfully refuse or neglect to perform the duties imposed upon them by law or by the by-laws of the company, shall be liable in their individual capacity to the person sustaining such loss. An action may also be brought and maintained against any such company by mem- bers thereof for losses sustained if payment is withheld after the amount of such losses have been determined, and is due by the terms of the policy. Sec. 15. It shall be the duty of the secretary to prepare an annual statement showing the con- dition of such company on the thirty-tirst day of December, and present the same at the annual meeting. Sec. 16. Any member of such company may withdraw therefrom by surrendering his policy for cancellation at any time while the organization continues the business for Avhich it was organized, by giving notice in writing to the secretary there- of, and paying his share of all claims that may exist against such company; provided, that the company shall have power to cancel or terminate any policy by giving the insured tive days' writ- ten notice to that effect, and returning to him any excess of premium he may have paid during the term of the policy, over the cost of his insurance, as measured by the rates of standard lire insur- ance companies doing business in this State. Sec. 17. It shall be the duty of the president Civ. Code— 67 794 APPENDIX. jiQd secretary, within thirty days after the first (hiy of January in each year, to prepare, under their own oath, and transmit to the insurance commissioner, a statement of the condition of the company on the last day of the month next pre- ceding the annual meeting. If, upon examination, the insiu-ance commissioner finds that such com- pany is doing business correctly, in accordance with the provisions of this act, he shall thereupon furnish the company his certificate, which shall be deemed authority to continue business during the ensuing year, subject, however, to the pro- visions of this act. For such examination and certificate the company shall pay one dollar. Each company shall pay, at the time of organization, five dollars to the insurance commissioner, for all services which he shall render in the matter of organization. Sec. 18. Any such company may be proceeded ^against and dissolved in the manner and upon the same conditions as provided in case of other in- surance companies incorporated in this State. Sec. 19. All acts and parts of acts in conflict with this act are hereby repealed. IRRIGATION. Laws relating to. see General Laws, title Irri- gation. APPENDIX. 7^ LIENS. Servants' lien, where wages not paid, see ante, title Corporations, pp. 743, 744. An Act creating a lien in favor of owners or those in charge of stallions, jacks, and bulls used for propagating purposes, and providing for the operation of such lien. [Approved March 11, 1891; Stats. 1891, p. 90. J § 1. Claim to be filed— False representations. § 2. Suits to foreclose. § 3. Attachment. § 4. Duty of sheriff. § 6. Sections of Code of Civil Procedure. Section 1. An j- owner or person having in charge a stallion, jacli, or bull used for propagating pur- poses, shall have a lien for the agreed price for the service of such stallion, jaclc.or bull upon any mare or cow served for pay by any such stallion, jack, or bull, and upon the offspring of such service; provided, that the owner or person having in charge such stallion, jack, or bull shall, within ninety days after such service, file in the office of the county recorder of the county where such mare or cow is served or kept, a verified claim containing a particular description of the mare or cow so served, the date and place of serving, the name of the owner or reputed owner of the mare or cow so served, a proper description, by name or otherwise, of the stallion or jack or bull per- forming such service, the name of the owner or person in charge thereof, and the amount of the lien claimed, which claim, when filed as aforesaid, shall operate as notice to subsequent purchasers and incumbrancers of such mare or cow for the 796 APPENDIX. term of one year from the date of the filing of sucli claim; and, provided, that any willfully false representations concerning the breeding or pedi- gree of such stallion, jack, or bull made or pub- lished by the owner or person in charge of such stallion, jack, or bull, or by any one else at the request or instigation of such owner or person in charge, shall invalidate any lien claimed under or hj virtue of the provisions of this act. Sec. 2. Suit to foreclose any lien created here- under may be brought in any county where said mare, cow, or offspring from such service may be found, and the plaintiff, at the time of issuing summons, or at any time afterwards prior to the rendition of judgment therein, may have the mare or cow upon which said lien subsists, and the said offspring, attached as further security for the pay- ment of any judgment he may recover, unless the defendant or person in possession of such mare, cow, or offspring give him good and sufficient se- curity to pay such judgment, in which event the mare, cow, or offspring shall be forthwith dis- charged by the sheriff' from such attachment, and from the lien hereunder created. Sec. 3. The clerk of the court must issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, showing,— First.— That the defendant is indebted to the plaintiff upon a demand for services rendered by the stallion, jack, or bull, belonging to or under charge of plaintiff, upon the mare or cow of de- fendant, for which his claim has been duly filed, in accordance with section one of this act. Second. — That the sum for which the attach- ment is asked is an actual, bona fide existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought and the ac- tion is not prosecuted to hinder, delay, or defraud any creditor or creditors of the defendant. APPENDIX. 797 Sec. 4. The writ must be directed to the sherilf of the county in which suit is brought, and must require him to attach the mare or cow specified in such lien, and the offspring of sucli service, unless the defendant or person in possession of such mare, cow, or offspring give good and suffi- cient security as provided in this act, in which case, to take such security and discharge any at- tachment he may have made, and to deliver up such mare, cow, or offspring to defendant or to the person from whom he has fallen the same, who shall receive the same free from the lien upon which such suit is brought. Sec. 5. Sections five hundred and thirty-nine, eleven hundred and eighty-nine, eleven hundred and ninety-eight, and eleven hundred and ninety- nine of the Code of Civil Procedure are hereby made applicable to this act. Sec. G. This act shall take effect from and af- ter its passage. An Act giving a lien to loggers and laborers, em- ployed in logging camps, upon the logs cut and hauled by the persons who employ them. [Approved March 30, 1878; 1877-8, 747.] ^ 1. Labor with logs, lien upon. § 2. Lien to cease, how and when. J 3. Suits to be commenced in proper courts. § 4. Plaintiff to have lumber attached. § 5. Clerk to issue writ. § 6. Sheriff to attach logs. § 7. Sections made applicable. § 8. Attachment, how made. § 9. Where lien shall extend. Labor with logs, lien upon. Section 1. A person who labors at cutting, hauling, rafting, or driving logs or lumber, or who 798 APPENDIX. performs any labor in or about a logging camp necessary for the getting out or transportation of logs or lumber, shall have a lien thereon for the amount due for his personal services, which shall take precedence of all other claims to continue for thirty days after the logs or lumber an-ive at the place of destination, for sale or manufacture; ex- cept as hereinafter provided. [Amendment ap- proved April 12, 1880; 1880, 38 (Ban. ed. 191). Took effect from passage.] Lien to cease, how and when. Sec. 2. The lien hereby created shall cease and determine unless the claimant thereof shall, with- in twenty days from the time such labor shall have been completed, file and record in the ofiice of the county recorder of the county where such labor was performed a verified claim, containing a statement: 1. Of his demand, after deducting all just cred- its and offsets; 2. The time within which labor was done; 3. The name of the person or persons for which the same was done; 4. The place where the logs or timber upon which such lien is claimed are believed to be sit- uated, and tlie marks upon the same; 5. The reputed owner thereof; and, 6. The reputed owner of the land from which the same were cut and hauled. Suits to be commenced in proper courts. Sec. 3. All liens hereby provided for shall cease and determine unless suit to foreclose the same shall be commenced in the proper court within twenty-five days from the time the same are filed. [Amendment approved April 12, 1880; Amend- ments 1880, 39 (Ban. ed. 191). Took effect from passage.] APPENDIX. 719 Plaiutiff to liavo lumber attacLed. Sec. 4. The plaintilf in any such suit, at the time of issuing the summons, or at any time after- ward, may have the logs or timber upon whicli such lien subsists attached, as further security for the payment of any judgment he may recover, un- less defendant give him good and suthcient secu- rity to pay such judgment, in which event such logs shall be forthwith discharged by the sheriff from such attachment, and from the lien hereby created. Clerk to issue writ. Sec. 5. The clerk of the coiu-t must issue tlie writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, showing: 1. That defendant is indebted to the plaintiff upon a demand for labor, for which his claim has been duly filed in accordance with section two of this act; 2. That the sum for which the attachment is asked is an actual bona fide existing debt, due and owing from the defendant to the plnintitf, and that the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor or creditors of the defendant. Sheriff to attach logs. Sec. 6. The writ must be directed to the sheriff of the county, and must require him to attach and safely keep the logs and timber spocitied In such lien, or so much thereof as may be sufficient to satisfy plaintiff's demand, unless the defend- ant give good and sufticient security, as provided in this act, in which case, to take such security and discharge any attachment he may have made, and to deliver up such logs to the defendant, who shall receive the same free from the lien upon which such suit is brought. 800 APPENDIX. Sections made applicable. Sec. 7. Sections five hundred and thirty-nine, eleven hundred and eighty-nine, eleven hundred and ninety-five, eleven hundred and ninety-seven, eleven hundred and ninety-eight, and eleven hun- dred and ninety-nine of the Code of Civil Pro- cedure are hereby made applicable to this act. [Amendment approved March 8, 1887; Stats. 1887, p. 53.] Attachment, how made. Sec. 8. Such attachment shall be made by tak- ing such logs into possession, and the sheriff shall make an inventory and return of his proceedings as directed in Chapter lY., Title VII., of the Code of Civil Procedure. Where lien shall extend. Sec. 9. The lien provided for by this act shall in no case extend beyond the limits of the county in V7hich the logs or timber in controversy were cut. Sec. 10. This act shall take effect and be in force from and after its passage. An Act to secure the wages of persons employed as laborers on threshing machines. [Approved March 12, 1885; 1885, 109.] Section 1. Every person performing work or la- bor of iiuy kind in, with, about, or upon any thresh- ing machine, the engine, horse-power, wagons, or appurtenances thereof, while engaged in threshing, shall have a lieu upon the same to the extent of the value of his services. Sec. 2. The lien herein given shall extend for ten days after the person has ceased such worlv or labor. APPENDIX. 801 Sec. 3. If judgment shall be recovered iu any action to recover for said services for work or labor performed, and said property shall be sold, the proceeds of such sale shall be distributed pro rata to all judgment creditors who have, within ten days, begun suits to recover judgments for the amount due them for such work. Sec. 4. The lien shall expire unless a suit to re- cover the amount of the claim is brought within ten days after the party ceases work. LODGINGHOUSES. An Act concerning lodginghouses and sleeping apartments within the limits of incorporated cities. [Approved April 3, 1876; 1875-6, 759.] § 1. Number of cubic feet. § 2. Misdemeanor. § 3. Buildings excepted. Number of cubic feet for each person. Section 1. Every person who owns, leases, lets, or hires, to any person, or persons, any room or apartment in any building, house, or other structure within tlie limits of any in- corporated city, or city and county, with- in the State of California, for the purpose of a lodging or sleeping apartment, which room or apartment contains less than five hundred cubic feet of space, in the clear, for each person so oc- cupying such room or apartment, shall be deemed guilty of a misdemeanor, and shall, upon con- viction thereof, be punished by a fine of not less than fifty (50) dollars or more than five hundred (500) dollars, or by imprisonment in the county jail, or by both such fine or imprisonment. 802 APPENDIX. Misdemeanor. Sec. 2. Any person or persons found sleeping or lodging, or who hires or uses for the purpose of sleeping in or lodging in any room or apartment which contains less than five hundred (500) cubic feet of space, in the clear, for each person so occu- pying such room or apartment, shall be deemed guilty of a misdemeanor, and shall, upon con- viction, be punished by a fine of not less than ten (10) or more than fifty (50) dollars, or by both such fine and imprisonment. Buildings excepted. Sec. 3. It shall be the duty of the chief of police (or such other person to whom the police powers of a city are delegated) to detail a competent and qualified officer or officers of the regular force to examine into any violation of any of the pro- visions of this act, and to arrest any person guilty of any such violation. Sec. 4. The provisions of this act shall not be construed to apply to hospitals, jails, prisons, in- sane asylums, or other public institutions. Sec. 5. All acts or parts of acts in conflict with the provisions of this act are hereby repealed. Sec. 6. This act shall talie effect and be in force from and after its passage. I MECHANICS' INSTITUTES. See ante, p. 737. MINES AND MINING. An Act for the protection of miners. [Stats. 1871-72, p. 413. Enacting clause.] § 1. Protection of miners. § 2. Escape shaft. § 3. Liabilities. Damages. APPENDIX. 803 Section 1. It shall not be lawful for any corpo- ration, association, owner, or owners of any quartz mining claims within the State of Califor- nia, where such corporation, association, owner, or owners employ twelve men daily, to sinlv down into such mine or mines any perpendicular shaft or incline beyond a depth from the surface of three hundred feet without providing a second mode of egress from such mine, by shaft or tun- nel, to connect with the main shaft at a depth of not less than one hundred feet from the surface. Sec. 2. It shall be the duty of each corporation, association, owner, or owners of any quartz mine or mines in this State, where it becomes necessary to work such mines beyond the depth of three hundred feet, and where the number of men em- ployed therein daily shall be twelve or more, to proceed to sink another shaft or construct a tunnel so as to connect with the main working shaft of such mine as a mode of escape from underground accident or otherwise. And all corporations, asso- ciations, owner, or owners of mines as aforesaid, working at a greater depth than three hundred feet, not having any other mode of egress than from the main shaft, shall proceed as herein pro- vided. Sec. 3. When any corporation, association, own- er, or owners of any quartz mine in this State, shall fail to provide for the proper egress as here- in contemplated, and where any accident shall oc- cur, or any miner working therein shall be hurt or injured and from such injury miglit have es- caped if the second mode of egress had existed, such corporation, association, owner, or owners of the mine where the injuries shall have occurred shall be liable to the person injured in all dam- ages that may accrue by reason thereof; and an action at law in a court of competent jurisdiction may be maintained against the owner or owners of such mine, which owners shall be jointly or 804 APPENDIX. severally liable for such damages. And where death shall ensue from injuries received from any negligence on the part of the owners thereof by reason of their failure to comply with any of the provisions of this act, the heirs or relatives sur- viving the deceased may commence an action for the recovery of such damages as provided by an act entitled an act requiring compensation for causing death by wrongful act, neglect, or default, approved April twenty-sixth, eighteen hundred and sixty-two. Sec. 4. This act shall talie effect and be in force six months from and after its passage. [Approved March 16, 1872.] An Act supplemental to an act entitled "An Act concerning corporations," passed the twenty- second of April, one thousand eight hundred and fifty. [Approved March 21, 1872; 1871-2, 443.] § 1. Petition for removal of officers. S 2. Organization of meeting. § 3. Ballot to supply vacancies. § 4. Certificate of election. , § 5. Fees of county clerk. Petition for removal of officers. Section 1. On petition of the majority of the shareholders of any corporation formed for the purpose of mining to the county judge of the coun- ty where said corporation has its principal place of business, verified by the signers, to the effect that they are severally the holders on the books of the company of the number of shares set oppo- site their signatures to the foregoing petition, the county judge shall issue his notice to the share- holders of said company that a meeting of the shareholders Avill be held, stating the time, not APPENDIX. 805 less than five nor more than ten days after the first publication of such notice, and the place of meeting- within said county, and the object to be to take into consideration the removal of officers of said company; which notice, si.srnod by the saienal sum therein named shall betaken and deemed APPENDIX. 817 to be liquidated damages, and shall be recoverable from the principal and sureties upon said bond, no award of any such franchise shall l)e made upon such bid, although the same may be the highest, but such franchise may be awarded to the next highest bidder, who shall have complied with this proviso, or, in the discretion of such board, or other governing or legislative body, all bids may be set aside and rejected, and new bids adver- tised for. Sec. 2. No franchise now existing, or which may hereafter be granted, shall be renewed by the board of supervisors, board of trustees, com- mon council, or other governing or legislative body above described, nor shall the extension or re- newal of the same be advertised or offered for sale by such governing or legislative body until within one year prior to the date of the exi)ira- tion of the existing franchise, unless the existing franchise is first surrendered by the holders there- of; provided, no franchise can be surrendered without the consent of tlie board of supervisors, board of trustees, common council, or otlier gov- erning or legislative body of the city and county, city, or town, granting such franchise. And pro- vided further, that on the application of the mayor, or a majority of the board of supervisors, board of trustees, common council, or otlier gov- erning or legislative body above described, it sliall be the duty of the attorney general to sue for a forfeiture of any franchise granted by such gov- erning or legislative body, alleging in such suit noncompliance with the terms of the franchise. Sec. 3. Any member of any board of super- visors, common council, or other governing or leg- islative body of any city and county, city, or town, of this State, who, by his vote, violates or at- tempts to violate the provisions of this act. or any of them, shall be guilty of a misdemeanor and of Civ. Code— 69 818 APPENDIX. malfeasance in office, and be deprived of his office by the decree of a court of competent jurisdiction, after trial and conviction. Sec. 4. All acts and parts of acts in conflict with this act are hereby repealed. An Act to confirm, ratify, and make valid or- dinances heretofore passed by the trustees, council, or other body intrusted with the gov- ernment of any incorporated city, city and county, or town, giving authority and permis- sion to propel cars upon railroad traclvs laid through the streets and public highways of such incorporated city, city and county, or town, by electricity. [Approved February 25, 1891; Stats. 1891, p. 12.] Section 1. In all cases where, prior to the pass- age of this act, authority to lay railroad traclis through streets or public highways of any incor- porated city, city and county, or town, has been obtained for a term of years, not exceeding fifty, from the trustees, council, or other body to whom was intrusted the government of the city, city and county, or town, and permission has been granted by such governing body to propel cars upon such traclvs by electricity, such authority and permission shall be, and shall be held and deemed, as valid and legal as the same would have been if, at the time of the obtaining thereof, section four hundred and ninety-seven of the Civil Code had expressly declared that permission might be given to propel cars upon such tracks by electricity, as well as by horses, mules, or wire ropes running under the streets and propelled by stationary steam engines; provided, that all such i APPENDIX. 819 permissions or franchises heretofore granted shall be subject to the provisions of the laws of this State applicable to street railroads in general, and subject to the same regulations from city, city and county, and town authorities as if the said franchises were hereafter granted. Sec. 2. This act shall take effect and be in force from and after its passage. An Act to enable railroad companies to complete their railroads. [Approved April 1, 1878; 1877-8, 944.] Authorizing construction of railroads. Section 1. Every railroad company heret«»iore organized under the laws of this State, and which has completed a portion of its road prior to the passage of this act, is hereby authorized and om- povrered to complete its road as described in its articles of incorporation, notwithstanding it may not have begun the construction of its road within two years after filing its original articles of in- corporation, and notwithstanding it may not have completed and put in operation five miles of its road each year thereafter. Sec. 2. This act shall take effect from and nftcr its passage. 820 APPENDIX. An Act permitting and autliorizing railway and other corporations, organized under tlie laws of this State, or of any State or territory of the United States of America, or any act of Con- gress of the United States of America, to do business in this State on equal terms. [Approved April 3, 1880; 1880, 21 (Ban. ed. 114).] Equal terms for all railway corporations. Section 1. That every railway corporation, and every corporation organized for the purpose of carrying freights or passengers, which lias or may be created or organized under or by virtue of any of the laws of any State or territory of the United States of America, or any act of Congress of the United States of America, may hereafter build railways, exercise the right of eminent domain, and do or transact any other business which such corporation might, if the same had been created or organized under or by virtue of the laws of this State, having the same rights, privileges, and im- munities, and subject to the same laws, penalties, and obligations, and burdens, as though said cor- porations had been created by or organized under the laws of the State of California, Railroad corporations may contract with one an- other. Sec. 2. Railroad corporations doing business in this State and organized under any law of this State, or the United States, or of any State or territory thereof, have power to enter into con- tracts with one another, whereby the one may lease of the other the whole or any part of its railroad, or may acquire of the other the right to use, in common with it, the whole or any part of its railroad. Sec. 3. All laws inconsistent with this act are^ hereby repealed. APPENDIX. 821 An Act to provide for the management and opera- tion of railroads above certain elevations. [Approved February 9, 1897.] The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. All railroads operated in this State whose lines of road are wholly constructed at an elevation of five thousand feet, or more, above the level of the sea, shall only be required to maintain and operate their roads, or to run passenger or freight cars thereon, between the fifteenth day of May, and the fifteenth day of October in each year. An Act to compel railroad corporations, or indi- viduals owning railroads, to operate their roads. [Approved April 15, 1880; 1880, 43 (Ban. ed. 2u5».J Operation of railroads, or forfeiture. Section 1. From and after the completion of any railroad, or the completion of sucli portion thereof capable of being operated, it shall be the duty of the corporation, or individual owning the same, to operate it; and upon the failure of said corporation or individual so owning said road to keep tlie same, or any part thereof, in full t>pera- tion for the period of six months, its or his right to operate the same in whole or in part, as the case may be, shall be forfeited: and the lands occupietl for the purposes of its or his road, so far as the same shall not be operated, shall revert to the original owners, or their successors in interest. A 822 APPENDIX. railroad shall be deemed to be in full operation when one passenger train, or one mixed train, is run over it once each day in each direction, and a sutficient number cf freight trains to accommodate the traffic on said road. Prevention of operation. Sec. 2. This act shall not be construed to apply- to a case where the operation of the road is pre- vented by the act of God, nor to a case where the operation of said road, together with its branch or trunk lines, does not yield income sufficient to de- fray the expenses of maintaining and operating the same in connection with its said branch or trunk lines. Duty of railroad commissioners. Sec. 3. The railroad commissioners of the State of California shall have the power to examine and determine the question whether said road, to- gether with its said branch and trunk lines, does or does not yield income sufficient to operate the same. Sec. 4. This act shall take effect immediately. An Act to create the office of commissioner of transportation, and to define its powers and duties; to fix the maximum charges for trans- porting passengers and freights on certain rail- roads; and to prevent extortion and unjust dis- crimination thereon. [Approved April 1, 1878; 1877-8, 969.] This act, which repealed the previous act of sim- ilar character of April 3, 1876, Stats. 1875-6, 783, was superseded by the operation of the constitu- tion adopted in May, 1879. The following act of APPENDIX. 823 1880 was intended to put the provisions of the constitution in reference to the subject into opera- tion. An Act to organize and define the powers of the board of railroad commissioners. [Approved April 15, 1880; 1880, 45 (Ban. ed. 207).] § 1. Board of railroad commissioners. § 2. Salaries — Expenses. § 3. Free passes. § 4. Duty of attorney general and district attorney. § 5. Location of office — Sessions of board. ^ H. Seal. § 7. Powers of board. § S. Powers of officers § 9. When may sue. § 10. Complaints. § 11. Rates. § 12. Jurisdiction. IJ 13. Demands from companies. ^ 14. Definition. J 15. Salaries, how paid. "'Board of railroad commissioners." Section 1. The three persons elected railroad commissioners, pursuant to the provisions of sec- tion twenty-two of article twelve of the constitu- tion of this State, constitute, and shall bo kn«)wn and desiiinated as. the "Board of Kailroad Tom- missioners of the State of California." They shall have power to elect one of their number president of said board, to appoint a secretary, to appoint a bailiff, who shall perform the duties of janitor: also, to employ a steno.m-apher. whenever they may deem it expedient. Salaries— Expenses. Sec. 2. The salary of each commissioner shall be four thousand dollars per annum: the salary of the secretary shall be twenty-four hundred dollars per annum; the salary of the bailiff shall be twelve 824 APPENDIX. hundred dollars per annum, such salaries to be paid by the State of California in the same man- ner as the salaries of State officers are paid. The stenographer shall receive a reasonable compensa- tion for his services, the amount to be fixed by the State Board of Examiners, and paid by the State. Said commissioners, and the persons in their ofli- cial employment when traveling in the perform- ance of their official duties, shall have their travel- ing expenses other than transportation paid, the amounts to be passed on by the State Board of Ex- aminers, and paid by the State. Said Board of Railroad Commissioners shall be allowed one hun- dred dollars per month for office rent, and fifty dollars per month for fuel, lights, postage, express- age, subscription to publications upon the subject of transportation, and other incidental expenses, to be paid by the State; provided, that all moneys remaining unexpended at the expiration of each fiscal year shall be returned to the State treasury. Said board is further authorized to expend not to exceed four hundred dollars for office furniture and fixtures, to be paid by the State. The State shall furnish said board with all necessary station- ery and printing, upon requisitions signed by the president of said board. Free passes. Sec. 3. Said commissioners, and the persons in their official employment, shall, when in the per- formance of their official duties, have the right to pass free of -charge on all railroads, steamers, ships, vessels, and boats, and on all vehicles em- ployed in or by any railroad or other transporta- tion company engaged in the transportation of freight and passengers within this State. Duties of Attorney General and District Attorney. Sec. 4. It shall be the duty of the Attorney Gen- eral, and the District Attorney in every county, on APPENDIX. 825 request of said board, to institute and prosecute. ciiid to appear and to defend for said board, in any and all suits and proceedings wbicti tbey or either (if them shall be requested by said board to insti- tute and prosecute, and to appear in all suits and proceedings to which the board is a party, shall have precedence over all other business except criminal business; provided, that said board shall have the power to employ additional counsel to as- sist said Attorney General, or said District Attor- ney, or otherwise, when in their judgment the exi- gencies of the case may so require. The fees and expenses of said additional counsel to be deter- mined by the State Board of Examiners, and paid by the State. Location of office— Sessions of board. Sec. 5. The office of said board shall be in the city of San Francisco. Said office shall always be open (legal holidays and nonjudicial daj's ex- cepted). The board shall hold its sessions at least once a month in said city of San Francisco, and at such other times and such other places within this State as may be expedient. The sessions of said board shall be public, and when held at a place other than the office in the city of San Francisco, notice thereof shall be published once a week for two successive weelis before the commencement of such session, in a newspaper published in the county, where such session is to be held; and if no newspaper is published in such county, then in a newspaper i)ublished in an ad- jacent county. Such publication to be paid by the State in the manner as other publications author- ized by law are paid. Seal. Sec. 6. The board shall have a seal, to be de- vised by its members, or a majority thereof. Such seal shall have the following inscription surround- 826 APPENDIX. ing it: "Railroad Commission, State of Califor- nia." The seal shall be affixed only to, first, writs; second, authentications of a copy of a record or other proceeding, or copy of a document on file in the office of said commission. Powers of board. Sec. 7. The process issued by said board shall extend to all parts of the State. The board shall have power to issue writs of summons and of sub- poena in lilie manner as courts of record. The summons shall direct the defendant to appear and answer within fifteen days from the day of ser- vice. The ru^cessary piocess issued by the board may be served in any county in this State by the bailiff of the board, or by any person authorized to serve process of courts of record. Powers of officers. Sec. 8. The secretary of said board shall issue all process and notices required to be issued, and do and perform such other duties as the board may prescribe. The bailiff shall preserve order during the sessions of said board, and shall have authority to malve arrests for disturbances. He shall also have authority, and it shall be his duty, to serve all process, orders, and notices issued by said board, when directed by the president, and malve return of the same. Complaints and decisions to be in writing. Sec. 9. All complaints before said board shall be in writing and under oath. All decisions of said board shall be given in writing, and the grounds of the decisions shall be stated. A record of the proceedings of said board shall be kept, and the evidence of persons appearing before said board shall be preserved. When may sue. Sec. 10. Whenever the board shall render any decision within the purview and pursuant to the APPENDIX. 82^ authority vested iu said board by section twenty- two of article twelve of the constitution, said board, or the person, copartnership, company, or corporation maliing- the complaint upon which such decision was rendered, is authorized to sue upon such decision in any court of competent jur- isdiction in this State. Kates. Sec. 11. Whenever said board, in the discharge of its duties, shall establish or adopt rates of charges for the transportation of passengers and freight, pursuant to the provisions of the consti- tution, said board shall serve a printed schedule of such rates, and of any changes that may be made in such rates, upon the person, copartnership, com- pany, or corporation affected thereby; and upon such service, it shall be the duty of such person, copartnership, company, or corporation to imme- diately cause copies of the same to be posted in all its oflices, stationhouses, warehouses, and landing offices affected by such rates, or change of rates, in such manner as to be accessible to public in- spection during usual business hours. Said board I shall also make such further publication thereof as they shall deem proper and necessary for the public good. If the party to be served, as herein- 1 before provided, be a corporation, such service may be made upon the president, vice-president, secretary, or managing agent thereof, and if a co- partnership, upon any partner thereof. The rates of charges established or adopted by said board, pursuant to the constitution and this act. shall go into force and effect on the twentieth day after service of said schedule of rates, or changes in rates, upon the person, copartnership, company, or corporation affected thereby, as hereinbefore pro- vided. 828 APPENDIX. Jurisdiction. Sec. 12. When jurisdiction is, by the constitu- tion, conferred on tlie Board of Railroad Commis- sioners, all the means necessary to carry it into effect are also conferred on said board, and when in the exercise of jurisdiction within the purview of the authority conferred on said board by the constitution the course of proceeding be not spe- cifically pointed out, any suitable process or mode of proceeding may be adopted by the board which may appear most conformable to the spirit of the constitution. Demand from transportation commissioner, under act of April 1, 1878. Sec. 13. The said board shall, immediately after entering upon the performance of its duties, de- mand and receive from the transportation commis- sioner, appointed under an act approved April first, eighteen hundred and seventy-eight, section nine, chapter one, all public property belonging to the office of said transportation commissioner, in his possession, or under his control, and it is here- by made his duty to deliver the same to the said board. Definition of term "transportation companies." Sec. 14. The term "transportation companies" shall be deemed to mean and include: 1. All companies owning and operating rail- roads (other than street railroads) within this State; 2. All companies owning and operating steam- ships engaged in the transportation of freight or passengers from and to ports within this State; 3. All companies owming and operating steam- boats used in transporting freight or passengers upon the rivers or inland waters of this State. The word "company," as used in this act, shall be deemed to mean and include corporations, asso- APPENDIX. 829 ciations, partnerships, trustees, agents, assignees, and individuals. Whenever any railroad company owns and operates in connection with its road, and for the purpose of transporting its cars, freight, or passengers, any steamer or other water-craft, such steamer or other water-craft shall be deemed part of its said road. Whenever any steamship or steamboat company owns and operates any barge, canalboat, steamer, tug, ferryboat, or lighter, in connection with its ships or boats, the thing so owned and operated shall be deemed to be part of its main line. Salaries, how paid. Sec. 15. The salaries of the commissioners, sec- retary, bailiff, and all other officers and attaches in any manner employed by the Board of Commis- sioners, and all expenses of every kind created under this act, shall be paid out of any money in the general fund not otherwise appropriated, and the Controller of State is hereby authorized and directed to draw his warrants from time to time for such purposes, and the State Treasurer is here- by authorized and directed to pay the same. Sec. 16. This act shall take effect immediatelv. An Act to limit and fix the rates of fares on street railroads in cities and towns of more than one hundred thousand inhabitants. [Approved January 1, 1878; 1877-8, 18.] Kates of fare of street railroads. Section 1. No street railroad in any city or town of this State with more tlian one hundred thou- sand inhabitants shall be allowed to charge or col- lect a higher rate of fare than five cents for each passenger per trip of any distance in one direction. Civ. Code— 70 830 APPENDIX. either goiug or coming, along- any part of tlie Avliole length of the road or its connections. violation and forfeiture. Sec. 2. Every violation of the provisions of sec- tion one of this act shall subject the owner or own- ers of the street railroad violating the same to a forfeiture to the person so unlawfully charged, or paying more than is therein allowed to be charged, the sum of two hundred and fifty dollars for each and every instance when such unlawful charge is made or collected, to be recovered by suit in any court of competent .iurisdiction; such causes of action shall be assignable, and the action may be maintained by the assignee in his own name, and several causes of action arising out of unlawful charges or collections from different persons may lye vested in the assignee and united in the same action. Sec. 3. This act shall be in force from its pas- sage. An Act relating to the operation of railroads. [Approved :March 23, 1893; Stats. 1893, 208.] Section 1. Every railroad company now or here- after engaged in the business of operating a rail- road or railroads, by steam motive power, in the State of California, is hereby authorized and em- powered to use electricity or steam, or both elec- tricity and steam, for the purpose of propelling j cars or trains on such railroad or railroads, or up- on any portion thereof; provided, that in incorpo- rated cities and towns having more than five thousand inhabitants, authority must first be ob- tained from the legislative authority of such city or town in the same manner in which franchises are granted. APPENDIX. 83] Sec. 2. All acts and parts of acts iu conflict witl: this act are hereby repealed. Sec. 3. This act shall take effect immediately. An Act to limit the time within which franchises or privileges for the construction, extension, or operation of street railroads may bf^ granted by boards of supervisors of the several coun- ties, and cities and counties of this State. [Approved February 24, 1893; Stats. 1893, 29.] Section 1. It shall be unlawful for the board of supervisors of any county or city and county, within the ninety days next preceding the date of holding a general election, and within the sev- enty days next immediately following, including the day of holding such general election, to au- thorize or pass any ordinance, order, or resolution granting to any person or persons, or association of persons, or corporation whatsoever, any privi- lege or franchise for the construction, extension, or operation of any street railroad, or extension of time for the construction or operation of any sti'eet railroad, over or upon any or part of any street, road, highway, squares, or park within the county or city and county. Sec, 2, Any franchise or privilege granted, or attempted to be granted, in violation of, or con- trary to. the provisions of this act shall be al3So- lutely void and of no effect. Sec. 3. All acts or parts of acts in conflict with this act are hereby repealed. Sec, 4. This act shall take eff'ect and be in force from and after its passage. APPENDIX. All Act requiring- city, city and county, or town authorities to exact and require from persons or corporations seeliing permission and author- ity to lay raih'oad tracks through streets or public highways of any incorporated city, city and county, or town, a satisfactory promise and undertaking to permit and allow mail car- riers in the employ of the United States gov- ernment at all times, while engaged in the ac- tual discharge of duty, to ride on the cars of such railroad without paying fare; and to make such promise and undertaking a condition pre- cedent to the granting of such permission and authority hy such governing board. [Approved February 27, 1893; Stats. 1893, 44.] Section 1. In all cases hereafter, where applica- tion is made to the city, city and county, or town authorities, or to the trustees, council, or other body to whom is intrusted the government of the city, city and county, or town, for permission and authority to lay railroad tracks through streets or public highways of any incorporated city, city and county, or town, such authorities, before granting such permission and authority, in addition to the terms and restrictions which they are now, by law, authorized to impose, must exact and require from the persons or corporation asking or seeking such permission and authority, a satisfactory promise and undertaking to permit and allow mail carriers in the employ of the United States gov- ernment, at all times while engaged in the actual discharge of duty, to ride on the cars of such rail- road without paying any sum of money whatever for fare or otherwise; and such governing body of city, city and county, or town authorities must APPENDIX. 833 make such promise and undertaking on the part of such persons or corporations a condition precedent to the granting of such permission and authority to lay raih-oad tracks through streets or public highways of such city, city and county, or town: provided, that all such permissions and franchises shall be subject to all other provisions of the laws of this State applicable to street railroads in gen- eral, and subject to regulations from city, city and county, and town authorities. Sec. 2. This act shall take effect and be in full force from and after its passage. TAXATION. An Act imposing a tax on the issue of certificates of stock corporations. (Repealed: See note at end of statute.) [Approved April 1, 1878; 1877-8, 955.] § 1. Fee allowed. § 2. Duty 01 secretary. § 3. Examination of secretary and books. § 4. Perjury. § 5. Disposal of moneys collected. Fee allowed. Section 1. It shall be lawful for the secretary of every corporation in the State of California to demand and receive of any person requiring tne issue to him of any certificate of stock in such corporation, a fee of ten cents in coin for each cer- tificate, whether such certificate be the original is- sue or an issue on transfer, and such certificate shall not be delivered by the secretary until such fee shall be paid. Duty of secretary. Sec. 2. It shall be the duty of the secretary of every such corporation, on the first Monday in 834 APPENDIX. Janu.iry, April. July, and October, of each year, to make returns, under oath, to the tax collector, or officer citing as tax collector, of the number of certificates issued by the corporation of Avhich he is secretary, during the quarter preceding, and pay to such tax collector the sum of ten cents in coin for each and every certificate so issued by said corporation, except that in the city and county of San Francisco such returns and payments shall be made to the license collector, or officer engaged in the collection of licenses in said city and county. Examination of secretary and books. Sec. 3. Such tax collector, or license collector, is hereby authorized and empowered to examine such secretary, under oath, as to the truth of said re- turns, and to examine, if necessary, the books of such corporation, so far as they relate to the trans- fer of stock, or issue of certificates, and if the returns are not correct, then he is authorized to commence an action against such corporation in any court of competent jurisdiction in the name of the people of the State of California, for a pen- alty of one hundred dollars for each certificate is- sued by such corporation and not so returned un- der oath, and several penalties may be joined in such action. Perjury. Sec. 4. Any persons violating the provisions of section two of this act shall be deemed guilty of a misdemeanor, and false swearing to any return provided in section two shall be deemed perjury. Disposal of moneys collected. Sec. 5. All moneys collected under the provi- sions of this act shall be paid by such tax collector, or license collector, into the county treasury, and shall become a part of the general fund, or if there shall in any county be no general fund, then the APPENDIX. 835 same shall become a part of such fimd as the board of supervisors may direct. Sec. G. This act shall take effect on the first Monday in April, 1878. This act was repealed by act approved March 31, 1897; Stats., c. 18U. TELEGRAPH COMPANIES. Act granting franchise for telegraph company between .Isia and America, see Stats. 1871-2, 97. TRADEMARKS. An Act to protect the owners of bottles, boxes, siphons, and kegs used in the sale of soda wa- ters, mineral or aerated waters, porter, ale. cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer, or other bev- erages. [Approved March 31. 1891; Stats. 1891, 217.] § 1. Description to be filed with county clerk. § 2. Unlawful acts. § 3. Use presumptively unlawful. § 4. Issue of search-warrants— Punishment. § 5. Refiling of marks not required. Section 1. Any and all persons engaged in man- ufacturing, bottling, or selling soda waters, min- eral or aerated waters, porter, ale. beer, cider, gin- ger ale, milk, cream, small beer, lager beer, weiss beer, white beer, or other beverages in bottles, siphons, or kegs, with his, her, its. or their name or names, or other marks or devices branded, stamped, engraved, etched, and blown, impressed, or otherwise produced upon such bottles, siphons, or kegs, or the boxes used by him, her, it, or them. 836 APPENDIX. may file in the office of the Clerk of the county in which his, her, its, or their principal place of busi- ness is situated, and also in the office of the Secre- tary of State, a description of the name or names, marks or devices, so used by him, her, it, or them, respectively, and cause such description to be printed once in each week for three weeks suc- cessively, in a newspaper published in the county in which said notice may have been filed as afore- said. Sec. 2. It is hereby declared to be unlawful for any person or persons, corporation or corporations,. to fill with soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or with medicine, compounds, or mixtures, any bottle, box, siphon, or keg, so marked or distinguished, as aforesaid, with or by any name, mark, or device, of which a description shall have been filed and published, as provided in section one of this act, or deface, erase, obliterate, cover up, or otherwise remove or conceal any such name, mark or device thereon, or to sell, buy, give^ take, or otherwise dispose of or traffic in the same, without the written consent of, or unless the same shall have been purchased from the person or per- sons, corporation or corporations, whose marli or device shall be or shall have been in or upon the bottle, box, siphon, or keg so filled, trafficked in, used, or handled as aforesaid. Any person or per- sons or corporation offending against the provi- sions of this section shall be deemed guilty of a misdemeanor, and shall be punished for the first offense by imprisonment not less than ten days nor more than six months, or by a fine of fifty cents for each and every such bottle, box, siphon, or keg so filled, sold, used, disposed of, bought, or traf- ficked in, or by both such fine and imprisonment; and for each subsequent offense by imprisonment APPENDIX. 837 not less thau twenty days nor more than one year, or by a fine of not less than one dollar nor more than five dollars, for each and every bottle, box, siphon, and keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, in the discretion of the magistrate before whom the oft'ense shall be tried. Sec. 3. The use by any person other than the person or persons, corporation or corporations, whose device, name or mark shall be or shall have been upon the same, without such written consent or purchase, as aforesaid, of any such mark or distinguished bottle, box, siphon, or keg, a de- scription of the name, mark, or device whereon shall have been filed and published, as herein pro- vided, for the sale therein of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or any article of merchandise, medicines, compounds, or prepara- tions, or for the furnishing of such or similar bev- erages to customers, or the buying, selling, using, disposing of, or traflicking in of any such bottles, boxes, siphons, or kegs, by any person other than said persons or corporations having a name, mark, or device thereon, or such owner without such written consent, or the having by any junk dealer, or dealer in second-hand articles, possession of any such bottles, boxes, siphons, or kegs, a description of the marks, names, or devices wherein shall have been so filed and published as aforesaid, without such written consent, shall and is hereby declared to be presumptive evidence of the said unlawful use, purchase, or traflic in of such bottles, boxes, siphons, or kegs. Sec. 4. AYhenever any person, persons, or corpo- rations, mentioned in section one of this act, or his her, its, or their agent, shall make oath before any magistrate that he, she, or it has reason to believe, 838 APPENDIX. and does believe, tbat any of his, her, or their bot- tles, boxes, siphons or Ivegs, a description of the names, marlvs, or devices whereon has been so filed and published, as aforesaid, are being unlawfully used or filled, or had by any person or corporation manufacturing or selling soda, mineral, or aerated waters, porter, ale, eider, ginger ale, millv, cream, small beer, lager beer, weiss beer, white beer, and other beverages, or that anj^ junk dealer, or dealer in second-hand articles, vender of bottles, or any other person or corporation, has any such bottles, boxes, siphons, or kegs, in his, her, or its posses- sion, or secreted in any place, the said magistrate must thereupon issue a search warrant to discover and obtain the same, and may also cause to be brought before him the person in Avhose possession such bottles, boxes, siphons, or kegs may be found, and then inquire into the circumstances of such possession; and if said magistrate finds that such person has been guilty of a violation of section two of this act, he must impose the punishment therein prescribed, and he shall also award pos- session of the property taken upon such search- warrant to the owner thereof. Sec. 5. Any person or persons, corporation or corporations, that has or have heretofore filed in the oftices mentioned in section one of this act a description of the name or names, marks or de- vices, upon his, her, their, or its property therein mentioned, and has caused the same to be pub- lished according to the laws existing at the time of such filing and publication, sliall not be re- quired to again file and publish such description to be entitled to the benefits of this act. Sec. 6, All acts and parts of acts inconsistent herewith are, for the purposes of this act, hereby repealed. APPENDIX. UXIXCORPOKATED SOCIETIES. See ante, Co-operative Associations. WAKEHOUSES AND WHARFINGERS. An Act in relation to waretiouse and wharfinger receipts, and other matters pertaining thereto. [Approved April 1, 1878; 1877-8, 949.] § I. Issuance of receipts for goods. § 2. Issuing of receipt upon goods as security. § 3. Second receipts, issuance of. § 4. Removal of goods when receipt issued. § 5. Receipts classed. § 6. Receipts to be indorsed. § 7. No delivery except on order. § 8. Non-negotiable receipts, how marked. § 9. Loss by fire. § 10. Felony. Issuance of receipt for goods. Section 1. That no warehouseman, wharfinger, or other person doing a storage business, shall is- sue any receipt or voucher for any goods, wares, merchandise, grain, or other produce or commod- ity, to any person or persons purporting to be the owner or owners thereof, unless such goods, wares, merchandise, grain, or other produce or commod- ity, shall have been bona fide received into store by such warehouseman, wharfinger, or other per- son, and shall be in store and under his control at the time of issuing such receipt. Issuing of receipt upon goods as security for money loaned. Sec. 2. That no warehouseman, wharfinger, or other person engaged in the storage business shall issue any receipt or other voucher upon any goods, 840 APPENDIX. wares, merchandise, grain, or other produce or commodity, to any person or persons, as security for any money loaned, or other indebtedness, un- less such goods, wares, merchandise, grain, or other produce or commodity, shall be, at the time of issuing such receipt, the property of such ware- houseman, wharfinger, or other person, shall be in store and under control at the time of issuing such receipt or voucher as aforesaid. Second receipts not to be issued, except, etc. Sec. 3. That no warehouseman, wharfinger, or other person as aforesaid, shall issue any second receipt for any goods, wares, merchandise, grain, or other produce or commodity, while any former receipt for any such goods or chattels as aforesaid,, or any part thereof, shall be outstanding and un- canceled. Removal of goods when receipt is issued. Sec. 4. That no warehouseman, wharfinger, or other person as aforesaid, shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control, any goods, wares, merchan- dise, grain, or other produce or commodity for which a receipt shall have been given as aforesaid, without the written assent of the person or per- sons holding such receipt or receipts plainly in- dorsed thereon in inlv. Receipts classed. Sec. 5. Warehouse receipts for property stored shall be of two classes: 1. Transferable or nego- tiable; and, 2. Nontransferable or non-negotiable. Under the first of these classes, all property shall be transferable by the indorsement of the party to whose order such receipt may be issued, and such indorsement of the party shall be deemed a valid transfer of the property represented by such re- ceipt, and may be in blank or to the or- der of another. All warehouse receipts for ArPEXDIX. 841- property stored shall distiuctly state on their fact for what they are issued, as also the brands and distinsriiishing marlis; and in the case of grain, the number of sacks, and number of pounds, and kind of grain; also the rate of storage per month or season charged for storing the same. Receipt to be indorsed. Sec. 6. No Tvarehouseman, or other person or persons, giving or issuing negotiable receipts for goods, grain, or other property on storage, shall de- liver said property, or any part thereof, without in- dorsing upon the back of said receipt or receipts, in ink. the amount and date of the deliveries. Nor shall he or they be allowed to make any offset, claim, or demand other than is expressed on the face of the receipt or receipts issued for the same, when called upon to deliver said goods, merchan- dise, grain, or other property. No delivery except on order. Sec. 7. No warehouseman, or person or persons doing a general storage business, giving or issu- ing non-negotiable or nontransferable receipts for goods, grain, or other property on storage, shall deliver said property, or any part thereof, except upon the written order of the person or persons to whom the receipt or receipts were issued. Non-negotiable receipts, how marked. Sec. 8. All receipts issued by any warehouse- man or other person under this act, other than negotiable, shall have printed across their face, in bold, distinct letters, in red ink, the words "non- negotiable." Loss by fire. Sec. 9. No warehouseman, person or persons do- ing a general storage business, shall be responsible for any loss or damage to property by fire while in his or their custody, provided reasonable care and Civ. Code-71 842 APPENDIX. vigilance be exercised to protect and preserve the same. Felony. Sec. 10. Any warehouseman, wharfinger, person or persons, who shall violate any •f the foregoing provisions of this act, is guilty of felony, shall be subject to indictment, and upon conviction, shall be fined in a sum not exceeding five thousand dol- lars ($5,000), or imprisonment in the State prison of this State not exceeding five years, or both. And all and every person aggrieved by the viola- tion of any of the provisions of this act may have and maintain an action against the person or per- sons violating any of the foregoing provisions of this act, to recover all damages, immediate or con- sequent, which he or they may have sustained by reason of any such violation as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted under the act or not. APPENDIX. 843 WATER COMPANIES. Irrigation: See General Laws, title Irrigation. An Act to regulate and control the sale, rental, and distribution of appr.jpiiated water in this State, other than in any city, city and county, or town therein, and to secure the rights of way for the conveyance of such water to the places of use. [Approved :March 12, 1885; 1885, 95.] § 1. Use of appropriated public water. § 2. Supervisors may fix rates. § 3. Petition for fixing rates. 15 4. Hearing of petition— Value of waterworks. § 5. Rules to be observed in fixing rates. § 6. Changing rates. § 7. Record of rates to be published. § 8. Water to be furnished at rates fixed. § 9. Penalty for excessive charges. § 10. To sell to all persons. § 11. Condemning land for right of way. § 11%. Contracts in eistence how affected. Use of appropriated water public. Section 1. The use of all water now appropri- ated, or that may hereafter be appropriated, for irrigation, sale, rental, or distribution, is a public use, and the right to collect rates or compensation for use of such water is a franchise, and except when so furnished to any city, city and county, or town, or the inhabitants thereof, shall be regu- lated and controlled in the counties of this State by the several boards of supervisors thereof, in the manner prescribed in this act. Supervisors may fix rates. Sec. 2. The several boards of supervisors of this State, on petition and notice as provided in sec- tion three of this act, are hereby authorized and -844 APPENDIX. required to fix and regulate the maximum rates at which any person, company, association, or cor- poration, having or to have appropriated water for sale, rental, or distribution in each of such coun- ties, may and shall sell, rent, or distribute the same. Petition for fixing rates. Sec. 3. Whenever a petition of not less than twenty-five inhabitants, who are tax-payers of any county of this State, shall, in writing, petition the board of supervisors thereof, to be filed with the clerk of said board, to regulate and control the rates and compensation to be collected by any per- son, company, association, or corporation, for the sale, rental, or distribution of any appropriated water, to any of the inhabitants of such county, and shall in such petition specify the persons, com- panies, associations, or corporations, or any one or more of them, whose water rates are therein peti- tioned to be regulated or controlled, the cleric of such board shall immediately cause such petition, together with a notice of the time and place of hearing thereof, to be published in one or more newspapers published in such county; and if no newspaper be published therein, then shall cause copies of such petition and notice to be posted in not less than three public places in such counties, and such publication and notice shall be for not less than four weeks next before the hearing of said petition by said board; such notice to be at- tached to said petition shall specify a day of the next regular term of the session of the said board not less than thirty days after the first publica- tion or posting thereof, for the hearing of said pe- tition, which shall impart notice to all such per- sons, companies, associations, and corporations mentioned in such petition, and all persons inter- ested in the matters of such petition and notice. Such board may also cause citations to issue to APPENDIX. 845 any person or persons Tvithin such county to at- tend and give evidence at the hearing of such peti- tion, and may compel such attendance by attach- ment. Hearing of petition— Value of Avater ^orl^s. Sec. 4. At the hearing of said petition the board of supervisors shall estimate, as near as may be. the value of the canals, ditches, flumes, water- chutes, and all other property actually used and useful to the appropriation and furnishing of such water, belonging to and possessed by each person, association, company, or corporation, whose fran- chise shall be so regulated and controlled; and shall in like manner estimate as to each of such persons, companies, associations, and corporations, their annual reasonable expenses, including the cost of repairs, management, and operating such worlds; and, for the purpose of such ascertainment, may require the attendance of persons to give evi- dence, and the production of papers, books, and accounts, and may compel the attendance of such persons and the production of papers, books, and accounts, by attachments, if within their respect- ive counties. Ilules to be observed in fixing rates. Sec. 5. In the regulation and control of such water rates for each of such persons, companies, associations, and corporations, such board of su- pervisors may establish different rates at which water may and shall be sold, rented, or distributed, as the case may be; and may also establish differ- ent rates and compensation for such water so to be furnished for the several different uses, such as mining, irrigating, mechanical, manufacturing, and domestic, for which such water shall be sup- plied to such inhabitants, but such rates as to each class shall be equal and uniform. Said boards of supervisors, in fixing such rates, shall, as near as. 846 APPENDIX. may be, so adjust them that the net annual re- ceipts and profits thereof to the said persons, com- panies, associations, and corporations so furnish- ing such water to such inhabitants shall be not less than six nor more than eighteen per cent upon the said value of the canals, ditches, flumes, chutes, and all other property actually used and useful to the appropriation and furnishing of such water of each of such persons, companies, associa- tions, and corporations; but in estimating such net receipts and profits, the cost of any extensions, en- largements, or other permanent improvements of such water rights or water worlds shall not be in- cluded as part of the said expenses of manage- ment, repairs, and operating of such works, but when accomplished, may and shall be included in the present cost and cash value of such worlv. In fixing said rates, within the limits aforesaid, at which water shall be so furnished as to each of such persons, companies, associations, and corpo- rations, each of said board of supervisors may liliewise take into estimation any and all other facts, circumstances, and conditions pertinent thereto, to the end and purpose that said rates shall be equal, reasonable, and just, both to such persons, companies, associations, and corporations, and to said inhabitants. The said rates, when so fixed by such board, shall be binding and conclu- sive for not less than one year next after their establishment, and until established anew or abrogated by such board of supervisors, as herein- after provided. And until such rates shall be so established, or after they sliall have been abro- gated by such board of supervisors as in this act provided, the actual rates established and collected by each of the persons, companies, associations, and corporations now furnishing, or that shall hereafter furnish, appropriated waters for sale, rental, or distribution to the inhabitants of any I APPENDIX. 847 of the counties of this State, shall be deemed and accepted as the legally established rates thereof. Changing rates. Sec. 6. At any time after the establishment of .'^uch water rates by any board of supervisors of this State, the same may be established anew, or abrogated in whole or in part by such board, to talvG effect not less than one year next after such first establishment, but subject to said limitation of one year, to take effect immediately in the fol- lowing manner. Upon the written petition of in- habitants as hereinbefore provided, or upon the written petition of any of the persons, companies, associations or corporations, the rates and compen- sations of whose appropriated waters have already been fixed and regulated, and are still subject to such regulation by any board of supervisors of this State, as in this act provided; and upon the lil^e publication or posting of such petition and notice, and for the lil^e period of time as hereinbefore pro- vided, such board of supervisors shall proceed anew, in the manner hereinbefore provided, to fix and establish the water rates for such person, com- pany, association, or corporation, or any number of them, in the same manner as if such rates had not been previously established, and may, upon the petition of such inhabitants, but not otherwise, abrogate any and all existing rates theretofore established by such board. All water rates, when fixed aud establislied as herein provided shall be in force and eft'ect until established anew or abro- gated, as provided in this act. Record of rates to be ptiblished. Sec. 7. Each board of supervisors of this State, when fixing and establishing, or fixing and estab- lishing anew, or abolishing any previously estab- lislied water rates, as hereinbefore provided, shall cause a record to be made thereof in the records 848 APPENDIX. of such board, and cause the same to be published or posted in the manner and for the time required for the publication or posting of said petitions and notices. Water to be furnished at rates fixed. Sec. 8. Any and all persons, companies, associa- tions, or corporations, furnishing for sale, rental, or distribution, any appropriated waters to the in- habitants of any county or counties of this State (other than to the inhabitants of any city, city and county, or town, therein), shall so sell, rent, or dis- tribute such waters at rates not exceeding the es- tablished rates fixed and regulated therefor by the boards of supervisors of such counties, or as fixed and established by such person, company, associa- tion, or corporation, as provided in this act. Penalty for excessive charges. Sec. 9. If any person, company, association, or corporation, whose water rates for any county of this State have been fixed and regulated by a board of supervisors, as in this act provided, and while such rates are in force, shall collect, for any appropriated water, furnished to any inhabitant of such county water rates in excess of such estab- lished rates, shall be liable, in an action by any such inhabitant so aggrieved, to a recovery of the whole rate so collected, together with actual dam- ages sustained by such inhabitant, with costs of suit. To sell to all persons. Sec. 10. Every person, company, association^ and corporation, having in any county in the State (other than in any city, city and county, or town therein) appropriated waters for sale, rental, or distribution, to the inhabitants of such county, up- on demand therefor, and tender in money of such established water rates, shall be obliged to sell, rent, or distribute such water to such inhabitants APPENDIX. 849 at the established rates regulated and fixed there- for, as in this act provided, whether so fixed by the board of supervisors or otherwise, to the ex- tent of the actual supply of such appropriated wa- ters of such person, company, association, or cor- poration, for such purposes. If any person, com- pany, association, or corporation, having water for such use, shall refuse compliance with such de- mand, or shall neglect, for the period of five days after such demand, to comply therewith to the extent of his or its reasonable ability so to do, shall be liable in damages to the extent of the ac- tual injury sustained by the person or party mak- ing such demand and tender, to be recovered, with costs. Condemning land for right of way. Sec. 11. Whenever any person, company, asso- ciation, or corporation shall have acquired the right to appropriate water, or shall have acquired the right to appropriate such water in this State, such person, company, association, or corporation, may proceed to condemn the lands and premises necessary to such right of way, under the pro- visions of Title YII. of Part III. of the Code of Civil Procedure of this State, and amendments made and to be made thereto, and all the provi- sions of said Code, so far as the same can be made applicable, relating to the condemnation and tak- ing of property for public uses, shall be applicable to the provisions of this act. Contracts in existence, how affected. Sec. 11^^. Nothing in this act contained shall be construed to prohibit or invalidate any contract already made, or which shall hereafter be made, by or with any of the persons, companies, associa- tions, or corporations described in section two of this act, relating to the sale, rental, or distribu- tion of water, or to the sale or rental of easements and servitudes of the right to the flow and use of 850 APPENDIX. water; nor to prohibit or intorfere with the vesting of riiihts tmder any such contract. [New section, added March 2, 1897: Stats. 1897, c. 54.] Sec. 12. This act shall take effect and be in force from and after its passage. An Act authorizing the boards of supervisors oi the counties in which water is sold for the pur- pose of irrigation to fix the rates at which water shall be sold. [Approved March 26, 1880; 1880, 16 (Ban. ed. 59).] § 1. Supervisors to fix rates. § 2. Forfeiture of franchise. § 3. Action to enforce forfeiture. § 4. To compel performance of duties of supervisors. § 5. Control of use of water prohibited. Supervisors to fix rates. Section 1. The boards of supervisors of the sev- eral counties of this State in which water is ap- propriated, furnished, and sold principally for the purposes of irrigation, are hereby atithorized and required to fix the maximum rates at which such water shall be furnished and sold, at a meeting to be held in the month of February of each \ear; provided, that in the year eighteen hundred and eighty such rates shall be fixed at The first meet- ing after the passage of this act. The rates so fixed and established shall be in to-rce from and after the first day of July, after the date of fixing said rates, and shall continue in forr^e for the period of one year; provided, that nothmg iii this section shall apply to water furnished within the limits of any incorporated city and county, city, or town. Forfeiture of franchise. Sec. 2. Any person, company, or corporation col- lecting rates for water furnished for irrigation m APPENDIX. 851 any coimty iu this State iu excess oH the rates as provided iu section one of this act shall forfeit for the public use the franchise and Avater works of such person, company, or corporation to the county in which such excessive rates were charged. Action to enforce forfeiture. Sec. 3. Upon affidavit being made by any inter- ested party, setting foith that any such compan\'. person, or corporation has charged rates for water furnished for irrigating purposes in excess of the rates established by the board of supervisors, the said board of supervisors shall cause the District Attorney to commence an action in the Superior Court of the county, Avithin thirty days from the receipt by them of such affidavit, to enforce the forfeiture of the franchise and water works of such person, company, or corporation. To compel the performance of the dtities of super- visors. Sec. 4. If the board of supervisors fail or neglect to fix the rates, as provided in section one of this act, or if the board of supervisors fail or neglect to commence the action provided for ir. section three of this act, as therein provided, any inter- ested person may commence proceedings to com- pel the performance of such duties. Control of use of water prohibited. Sec. 5. No person, company, or corporation sell- ing water for irrigation shall be permitted to ex- ercise any control as to the use of the water after its delivery to the purchaser. Sec. 6. This act shall take effect immediately. INDEX. ABANDONED GOODS, finder of thing not bound to keep it for owner, § 1871. ABANDONMENT, of husband, relieves from duty of support. § 17.5. of child, evidence of relinquishment of control, § 197. of homestead, §§ 124.3, 1244. of ship by ship-master, § 2940. of ship, duties of ship-master on, § 2941. in marine insurance. See Insurance, Marine. ABATEMENT, of legacies, § 1.362. of nuisances, claim for damages, § 3484. of public nuisance, by whom, § 3494. of public nuisance, how, § 349.5. of private nuisance, when, § 3-502. ABDUCTION, forbidden. § 49. ABLE AND WILLING. See Performance. ABSENCE, effect on marriage, §§ 61, 97, 98. temporary, when desertion. § 100. missing persons, act relating to See vol. of General Laws, title, Missing Persons. ACCEPTANCE, of accord, satisfaction, § 1523. of benefit of transaction, effect, § 1.589. of partial performance, § 1741. of rent, renews lease, when, § 1945. of guaranty, notice when necessary, § 2795. of principal, waives interest, when,"^ § 3290. of abandonment. See Insurance. of bill of exchange. See Bill of Exchange. of proposal to contract. See Contract. ACCESSION, property may be acquired by, § 1000. To Real Propertv. by fixtures, § 1013. by alluvion, § 1024. ownership of deposits, § 1014. by removal of bank, § 1015. by accumulation of earth, § 1016. by change of river's course, >< iui9. To Personal Property, bv union of several things, § 1025. by admixture of materials, § 1028. by formation of new things, § 1029. by workmanship, § 1030. Civ. Code.— 72 «54 INDEX. ACCESSION— Continued. To Personal Property. by willful trespass, § 1031. ACCESSOlvY, passes by transfer of principal thing, §§ 1084, 3540. lien is, § 2909. ACCIDENT, error in contract caused by, to be disregarded, § 1640. deposit by, must be accepted, § 181G. thing gained by, held in trust, § 2224. See Mistake. ACCORD, defined, § 1521. effect, § 1522. acceptance of, satisfaction, § 1523. of liquidated debt, § 1524. ACCOUNT, employee must render, § 1986. of voluntary interferer Mith property, § 2078. of trust, § 2237. partners to. § 2412. partner to, for certain profits, § 2438. ACCRETION. See Accession. ACCUMULATIONS, disposition of, § 722. void, when, § 723. certain allowed, § 724. directions concerning, void Avhen. § 725. surplus in trust, when liable to creditors, § 859. allowances made out of, § 726. income. See Income. ACKNOWLEDGMENTS, declaration of maiTiage, § 77. inventory of separate property of wife, § 165. marriage-settlement contracts, § 178. contract of apprenticeship of alien minors, §275. articles of incorporation, § 292. execution of power by married woman, § 898. consent to execution of power, § 907. instruments for record, § 1158. instruments evidencing judgment title for record, § 1159. letters patent recorded without. § 1160. who may take, in state, §§ 1180, 1181. deputy may take, § 1184. requisites, § 1185. foreign, who may take, in other states, § 1182. foreign, who may take, out of United States, § 1183. foreign, certificate of clerk to, effect of, § 1189. foreign, acknoAvledgmeut taken without the state, form of, § il89. INDEX. 855 ACKX()WLP:I xniEXTS— Coiitiimed. married woman, acknowledament bv. §§ 1093, 1189. married women, ackuowledament bv. bow ex- ecuted. § 1093. ofReer to indorse certilioate, § 1188. certificate of. bv corporation. § 1190. form of certificate, §§ 1189-1192. certificate of. by attorney in fact, § 1192. seals and sisrnatures. § 1193. certificate of officer on, S§ 1193. 1200. certificate of county clerk, where taken by jus- tice of the peace, § 1194. subscribing witness to be personally known, § 1196. witness to prove what. § 1197. handwriting- proved, when. § 1198. evidence must prove what. § 1199. interpreter may be employed, § 1201. otficers may punish for contempt, § 1201. action to correct error in certifying, § 1202, acts legalizing defective acknowledgments, pp. 703 et seq. action to obtain, § 1203. instruments heretofore made. § 1205. instruments affecting homesteads, § 1242. homestead declaration, § 1262. certificate of change of name in partnership, § 2469. certificate of special partnership, § 2480. mortgages, § 2952. personal mortgages. § 2963. assignment for benefit of creditors. § 3458. ACQUIESCENCE, removes objections, § 3516. ACT, title of establishing the Civil Code, § 1. how cited, § 21. ACTIONS, particular action. See Particular Title. commenced previous to taking effect of Code, not affected. § 20. ACTS OF GOD, injure no one, § 3526. excuses non-performance. § 1511. innkeeper not responsible for, § 1859. carrier not responsil)le for. § 2194. no one responsible for, § 3526. ADEMPTION. See Wills. of legacy, advancement or gift when deemed, § 1351. ADMINISTRATORS. See Executors and Admin- istrators. •856 INDEX. ADOPTION, of child. § 221. who may adopt, § 222. consent of wife, when necessary, § 223. consent of child's parents necessary, § 224. consent of child, when necessary, § 225. adoption of child from asylum without consent, § 224. proceedinj?s, § 226. jnd^-e's order, § 227. effect, § 228. effect on former relations of child, § 229. of illegitimate child, § 20. authorizing orphan asylums to consent to, § 224. ADULTERY, divorce granted for, § 92. defined, § 93. legitimacy of issue of marriage divorced on ac- count of, §§ 144, 145. disposition of community property on divorce for, § 147. ADULTS, who are, § 27. compensation for support of adult child, § 210. ADVANCEMENTS, effect, § 1309. when deemed ademption, § 1351. constitutes part of distributive share, § 1395. when in excess or insufficient, effect, § 1396. what deemed, § 1397. value, how determined, § 1398. effect of, § 1309. effect when person advanced to dies before tes- tator, § 1399. ADVANTAGE, unfair, when fraudulent, § 1575. unfair, when evidence of undue influence, § 1575. trustee not to use influence to obtain, §§ 2228, 2231. partner must not obtain over copartners, § 1411. ADVERSE CLAIM, depositary to give notice to depositor of, § 1825. trustee to give notice to beneficiary of his ac- quisition of, § 2233. ADVERSE POSSESSION, owner of property in, may transfer his right, § 1297, property in, may be mortgaged, § 2041. AFFIDAVITS, of officers on filing articles of in- corporation, § 295. of publication of notice of sale of delinquent stock, § 348. INDEX. 857 AFFIDAVITS— Continued. of publication of notice of change of partner- ship name, § 2471. of publication of notice of special partnership, § 2484. of truth of inventory by assignor for benefit of creditors, § 3462. AGE, of majority. See Majority, Age of; Minors. AGENCY. See Attorney in Fact; Subagent. who may appoint, and who may be an, defined, § 2295. parties to, defined, § 2295. agents, general or special, § 2297. ; agency, actual or ostensible, § 2298. actual, § 2299. ostensible, § 2300. what authority may be conferred, § 2304. agent may perform acts required of principal by Code, § 2305. agent cannot have authority to defraud prin- cipal, § 2306. creation of, § 2307. consideration unnecessary, § 2308. form of authority, § 2309. agent to conform to his authority, § 2019, must Iveep his principal informed, § 2020. collecting agent, § 2021. responsibility of subagent, § 2022. measure of agent's authority, § 2315. actual authority, what, § 2316. ostensible authority, what. § 2317. agent's authority as to persons having notice of restrictions upon it, § 2318. agent's necessary authority, § 2319. declarations of, when admissible, § 2319. declarations as to terms of authority, § 2319. agent's power to disobey instructions, § 2320, authority construed by specific rather than gen- eral terms, § 2321. exceptions to general authority, § 2322. what included in authority to sell personal property, § 2323. what included in authority to sell real prop- erty, §2324. authority of general agent to receive price of property, § 2325. authority of special agent to receive price, § 2326. 858 INDEX. AGENX^Y— Coiitinned. principal, liow affected by acts of agent within scope of autliority, § 2830. principal, when bound by incomplete execution of autliority. § 2881. notice to agent, when notice to principal, § 2832. obligation of principal when agent exceeds au- thority. § 2883. for acts done under merely ostensible author- ity, § 2334. when exclusive credit is given to agent, § 2335. rights of person who deals with agent without knowledge of agency. § 283G. Instrument intended to bind principal, § 2387. principal's responsil)ility for agent's negligence or omission. § 2388. principal's responsibility for wrongs willfully committed by agent, § 2389. warranty of authority, § 2842. damages for breach of Avarrantv of authority of, § 8318. indemnity extends to acts of. § 2775. notice of dishonor, how given under, § 3149. ratification of agent's act. § 2810. ratification of part of transaction, § 2811. Avhen ratification void, §2312. rescission of ratification, S 2814. agent's responsibility to third persons, § 2343. obligation of agent to surrender property to third person, § 2844. agent not having capacity to contract, § 2345. agent's delegation of powers, § 2849. agent's unauthorized employment of subagent, § 2850. subagent rightfully appointed, represents prin- cipal, § 2851. termination of, § 2355. termination where agent has no interest, § 2850. of auctioneer, § 2302. of factor, § 2807. of ship-master, § 2878. of ship's manager, § 2888. ship's manauer cannot borrow money without special authority, § 2889. of general partner, § 2429. of partner in mines, autliority, § 2519. agent's acts for insurer on abandonment, § 2720. INDEX. 869 AGREEMENT. See Contract. AGRICULTURAL FAIR CORPORATION. See Corporations. AGRICULTURAL LAND, limitation on leases of, § 717. ALIENATION, restraints on, when void, §§ 711, 716. how long* poAver of, may be suspended, § 715. disposition of income during suspension of power of. § 733. of intermediate interest does not defeat future interest, § 742. suspension of power of. § 770. suspension of ])ower of, by trust. § 771. ALIENS, minor, apprenticeship of. § 274. may hold property. § 671. inheriting-, when must claim or be barred, §672. resident, may talve by succession, § 1404. ALIMONY, when court mav grant, §§ 137-139. security for, § 140. when may not be granted. § 142. out of what property granted, § 141. ALLUVION. See Accession. ALTERATION. See Revision. how contract may be altered, §§ 1697, 1698. of interests disposed of bv will, when revoca- tion of will, §§ 1303. 1304. of contract by consent, § 1697. of contract in writing. § 1698. contract extinguished by, § 1699. unauthorized, of contract, effect. § 1770. of contract in duplicate, effect, § 1701. of thing covered by fire insurance, increasing risk, effect, § 2753. of thing insured, not increasing risk, effect, § 2754. of representation in insurance, § 2576. of obligation exonerates guarantor. § 2821. AI>TERNATIVE, future interest may be in, § 696. obligation, right of selection under. § 1448. o])lioation, right of selection under, how lost, S 1449. o])ligation, selection under, how made. § 1450. oblisration, effect of nuUitv of one branch of, § 1451. negotiable instrument mav be in, § 3090. AMBIGUITY, in wills, how construed, § 1323. in contracts, how construed, § 1349. 8oO INDEX. AMENDMENTS TO CODES, to Civil Code, effect of those of 1874, § 5. ANIMALS, corporations for insuring domestic^ §286. corporations for improving breed, § 286. domestic, subject of ownership, § 655. wild, how far subject of ownership, § 656. depositary of, must use what care, § 1834. compensation of depositary of, § 1853. borrower for use, must use great kindness, § 1887. protection of sheep against dogs, § 3341. lien in favor of owner of animal for propagat- ing purposes, p. 795, Stat. act to prevent combinations to obstruct sale of livestock, p. 705, Stat. ANNUITY, defined, § 1357. when due, § 1368. ANNULMENT, of indentures of apprenticeship, causes for, § 276. of marriage. See Divorce. APPEALS, from order distributing property on divorce, § 148. APPOINTMENT, of guardian by the court, §§ 243-244. of guardian by the court supersedes parent, §204. no person guardian of estate without, § 242. effect of power of, § 781. of trustee, how made, § 2287. of successor to trustee, duty of trustee con- cerning, § 2260. APPGIITIONMENT of burden of servitude on par- tition of dominant tenement, § 807. of losses occasioned by collision of vessels, § 973. of covenants, § 1467. of consideration in case of prevention of per- formance, § 1514. of hire, § 1935. of freightage, by contract, §§ 2140, 2141. of freightage, according to distance, § 2142. of lien. § 2912. APPRAISERS, petition for appointment of, to ap- praise homestead, § 1245. petition to contain what, § 1246. appointment of, to assess value of homestead, § 1249. oath, § 1250. INDEX. 861 APPRAISERS— Continued. duties, § 1251. return, § 1252. fees, § 1258. APPRENTICESHIP, ^vbo may enter into, § 2&i. minors may be apprenticed, p. 708 et seq., Stat. minors, by whom may be apprenticed, p. 708 et seq., Stat. executors may bind to, § 267. supervisors may bind to, § 268. town officers may bind paupers to. § 269. whose consent necessary to, and bow given, § 265. consent to, to be in writing, § 266. consent of minor necessary, p. 709, § 3, Stat. age of apprentice, p. 712, § 12, Stat. indentures, p. 709, § 4 et seq., Stat. wliat must be stated in indentures. § 270. conditions in indentures, §§ 271, 272. deposit of indentures, § 27.3. of alien minors, how affected, §§ 274, 275. obligations of masters, p. 711, § 9 et seq.. Stat. liability of master, p. 711 et seq., Stat. money and clothes for apprentice, p. 711, § 10, Stat. complaint of apprentice against master, p. 712, § 13, Stat. treatment of apprentices, p. 711, § 10, Stat. liability of apprentice for neglect or miscon- duct, p. 711, § 11, p. 713, § 16, Stat. enticing apprentice to run away or harboring him a misdemeanor, p. 714, § 19, Stat. dissolution of apprenticeship by court, p. 713, § 17, Stat. discharge of apprentice, p. 712, § 14, Stat. removal of master from state, discharge of ap- prentice, p. 714, § 20, Stat. master quitting trade or business, discharge of apprentice, p. 712, § 14, Stat. costs, payment of on dissolution of apprentice- ship, p. 713, § 17, Stat. APPURTENANCES pass by transfer of land, §§ 476, 1084, 3540. defined, § 662. certain, deemed fixtures, § 661. to land, what, § 662. to ship, what, § 961. 862 INDEX. ^ APPURTENANCES -Continued. iiTiuation corporation, stocl?; in as an appurte- nance. § 824. ARBITRATION, partner cannot submit firm claim to. § 24.30. aa'reement for. cannot be specifically enforced, ^§ 3390. ASSESSMENT. See Corporations. bv benefit societies, p. 724. § 3. Stat. ASSIGNMENTS FOR THE BENEFIT OF CRED- ITORS, who may make. § 3449. partner has no authority to malve. § 2430. assi.ffnment must be written. § 34.^)8. assijrnment. what to contain, § 3449. books and vouchers, surrender of. § 3462. must be recorded where. §§ 2463, 2464. void if not recorded, § 2465. dutv to record assignment and effect of fail- ure, § 3465. assignment to be made to sheriff. § 3449. where assignor resides out of state, §§ 3449, 3451. assignment when void, § 3465, affidavit to assignment, § 3462. assignment, modification or cancellation of. § 3473. gives no rights greater than debtor had, § 3460. inventory to accompany, §3461. void against creditor, when, §§ 3457, 3459. inventory, form of, § 34.58. inventory what to contain. § 3449. inventory, failure to make, effect of, §§ 3462, 3465, 3468. inventory, acknowledgment of. § 34.58. inventory accompanving, must be filed where, § 3463. of real property, subject to certain provisions, § 3466. property exempt from execution does not pass by, § 3470. life insurances do not pass by, § 3470. meetings of creditors, § 3449. meeting of creditors, notice of, § 3449. meeting of creditors, adjournment of. § 3449. meeting of creditors, secured claim, holder of, not to vote at election of assignee. § 3449. meeting of creditors, voting in person or by proxy, § .3449. sheriff, assignment by to elected assignee, § 3449. INDEX. 863 ASSIGNMENTS, etc.— Coiitiuiied. sheriff, duties of, ^ 8449. sheriff, fees of. § 3449. assiuiiee. election of. § 8449. assi.snee, duties of, § 3449. assignee, powers and duties of. § 3468. assignees, commissions of. § 3471. assignee, rights of where property to secure debt exceeds debt, § 34(38. assignee, when to make inventoi-y, § 3462. assignee under, may be required to account, § 3469. assignee not liable for acts in good faith, thougli void. § 3472. assignor, citation and examination of, § 3462. bond, duty of assignee to file, § 3467. bond, failure of assignee to file, effect of, § 3467, 3468. bond, sheriff" liable on official bond, § 3467. bond, sheriff not required to give, § 3467. notice to creditors, mailing of. § 3468. notice to creditors, publication of, § 3468. notice to creditors, filing copy with recorder. § 3468. claims, what debts may be secured by, § 3452. claims, statement of, § 3449. secured creditor, rights where security given up, § 3468. secured creditor, rights where security not given up, § 3468. preference to creditor, § 3451. assignment to particular creditor. § 3451. dividends, payment of. § 3468. ASSIGNMENTS OF CONTRACTS, of mortgage, effect of recording. § 2935. of debt secured bv mortgage carries the secur- ity with it, § 2936. general, by maker of negotiable instrument to indorser.' excuses notice of dishonor, § 3157. by lessor, liability of assignee, § 822. non-negotiable contract in writing may pass by. § 1459. of partnership property, partner cannot make, § 2430. of mortgage mav be recorded. § 2984. ASSOCIATIONS. See Corporations, co-operative. See post, p. 742, Stat, protective. See post, p. 737, Stat. ASSURANCE, executory contract for sale, binds seller to insert covenant of further, § 1733. S64 INDEX. ASYLUM, who may be placed in lunatic, and how, §258. orphans in orphan, may be apprenticed how, § 265. corporations may be formed for maintenance of, § 286. ATTORNEY-GENERAL may inquire into affairs of corporations, § 382. duty of, when alien heir does not claim inherit- ance, § 1405. duty where business of building society dan- gerously conducted, pp.730, 731, §§9, 10, Stat, duty to prosecute and defend suits for railroad commissioners, p. 824, § 4, Stat. ATTORNEY IN FACT. See Agency. how must execute certain instruments, § 1095. form of certificate of acknowledgment by, § 1191. power of, how revolted, § 1216. ATTORNEYS, advertising to procure divorce or annul marriage is a misdemeanor. See Penal Code, § 159yo. ATTORNMENT, by tenant to landlord, unneces- sary, § 1111. by tenant to stranger, void, § 1948. AUCTION, sale of delinquent stock by, § 341. sale by, defined. § 1792. sale by, when complete. § 1793. withdrawal of bid at sale by, § 1794. written conditions of sale by, not to be modi- fied, § 1795. rights of bidder at, § 1796. by-bidding prohibited, § 1797. memorandum of sale, by whom made, § 1798. sale of pledged property to be by, § 3005. pledgee may purchase pledges sold, § 3010. AUCTIONEER, authority of, from seller, § 2362. authority of, from bidder, § 2363. AUTHOR, of product of the mind, exclusive own- er thereof, § 980. rights of subsequent. § 984. AUTHORITY, construction of words giving joint, § 12. abuse of, renders contract voidable, § 1566. of agent. See Agency, of auctioneer. See Auctioneer, of executor. See Executors, of factors. See Factors. iXDEX. 865 AUTHOHITY— Continued. of parent. See Parent. of ship-master. See Sliippinsi:. of ship's mauagf'i-. See Shipping. of trustee. See Trusts. AVERAGE, general, defined, § 2148. general, how adjusted, § 2152. general, value, how ascertained for purpose of, § 21.>3. general, owner of goods stowed on deck, when entitled to benefit of, § 2154. ship-master has power to adjust § 2388. insurance free from, effect of, § 2711. general, marine insurer liable for, §§ 2712, 2744. AVULSION, owner may reclaim land carried away by, § 1015. AWARD. See Arbitration. BAGGAGE. See Luggage. BAIL defined, § 2780. how regulated, § 2781. BAILMENT. See Deposit; Depositary: Hiring; Loan: Pledsre. BANKS AND BANKING, banking, book and no- tice of directors and stockholders. § 321. change of principal place of business of cor- poration, § 321. business corporation not to carry on, § 356. special partnership cannot carry on, § 2477. lien of banker, § 3054. pass-book not negotiable. § 32G2. capital stock, act prohibiting dividing, with- drawing or reducing, p. 719, § IS, Stat. capital stock, increasing or reducing, p. 719, §§ 19, 20, Stat. act authorizing next of kin of deceased to col- lect deposit under three hundred. See Code of Civil Procedure, Appendix, p. 814, Stat. act relating to banking corporations, repeal of, p. 715, Stat. savings banks, publishing statement of un- claimed deposits, p. 716, Stat. act compelling all depositaries of money to ptiblish statement of unclaimed deposits, p. 717, Stat. act compelling commercial banks to pub- lish statement of unclaimed deposits, pp. 716, 717, Stat. BANK NOTE, negotiable after payment, § 326L Civ. Code.— 7a. 866 INDEX. See Check; Negotiable Instrument, BASTARD. See Legitimacy. BENEFICIARY in real property has no interest therein, when, § 863. when may dispose of his interest, § 863. when cannot dispose of his interest, § 867. of trust. See Trust. BENEFIT, consent of party entitled to, necessary to transfer of burden, § 1457. voluntary acceptance of, is assumption of, § 1589. he who takes, must bear burden, § 3521. BENEFIT SOCIETIES, right to form, p. 723, § 1, Stat. how formed, p. 724, § 2, Stat, formation of old associations under statute, p. 725, § 6, Stat, powers of, p. 724, § 3, Stat, burial plots, power to dispose of, § 598. by-laws, p. 725, §5, Stat, assessments, p. 724, § 3, Stat, actions by and against, p. 724, § 4, Stat, cumulative voting in, § 307. BENEVOLENCE. See Charitable Uses. corporations for purposes of. See Corpora- tions. BICYCLES, as luggage, § 2181. BIDDERS. See Auctions. BIGAMY, ground for nullifying marriage, § 82. BILLS OF EXCHANGE, CHECKS, NEGO TIABLE INSTRUMENTS, PROMISSORY NOTES, defined, § 3171. may give name of second drawee in case of need, § 3172. may be in set, § 3173. Avhen must be in set, § 3174. presentment of one of set sufficient, § 3175. ^vhere payable, § 3176. draAver of, has same obligations, etc., as in dorser, § 3177. days of grace not allowed on, § 3181. apparent maturity of, § 3134. Acceptance— agent for collection must present for, § 2021. how made, § 3193. must be in writing, § 3194. how made, by consent of holder, § 3195. by refusal to return, § 3195. by separate instrument, § 3196. INDEX. 867 BILLS OF EXCHANGE, etc.— Contiiiuerl. Acceptance — promise to accept, when equivalent to, § 3197. may be canceled, when, § 3198. what is admitted by, § 3199. for honor, when allowed, § 3203. for honor, holder not bound to receive, § 3204, for honor, how made, § 3205. for honor, how enforced, § 3206. bill drawn on drawer and accepted is promis- sory note. § 325.5. for honor, notice for dishonor not excused by, § 3207. payment, for honor, must be received bv hold- er, § 3204. for honor, how made, § 3205. presumptive dishonor of. pavable after sisrht, § 3133. Presentment— for acceptance, when made, §§ 3185, 3189. for acceptance, by whom made. § 3186. for acceptance to joint drawees. § 3187. for acceptance to drawee in case of need, § 3188. for pavment, where made, §§ 3211, 3212. for payment, effect of delay in, §§ 3213, 3214. for acceptance, when excused, §§ 3218, 3219. drawer actino- fraudulently not entitled to no- tice. § 3220. Foreign— defined, § 3224. notice of dishonor, how given, § 3225. protest, by whom made. § 3226. protest, how made, § 3227. protest, where made, § 3228. protest, when made, § 3229. protest, when excused, § 3230. notice of protest, how given. § 3231. notice of protest may be waived, § 3232 how paid for honor, § 32.33. damages for dishonor, ^ 3234, 3235. interest as damages for dishonor, § 3236. damages for dishonor, how estimated in fed- eral money, § 323 1. damages for dishonor, how estimated in for- eiirn money, § 32.38. BILL OF LADING defined. § 2126. ne-otiable, §§ 2127, 2128. effect of, on carrier. § 2129. consignor entitled to, § 2130. 868 INDEX. BILL OF LADING— Contiuued. effect of refusal to give, § 2130. delivery to holder of, sutRcient, § 2131. carrier may require surrender on delivery, § 2132. effect of accepting, from carrier, § 21 < 6. BOARUIISG-HOUSE KEEPERS, lien on baggage, § 1861. sale of unclaimed baggage for storage, etc., § 1862. posting of statement of charges by, § 1863. BOARDS OF TRADE, act providing for forma- tion of, p. 737, Stat. BONA FIDE PURCHASER, presumption in favor of on purchase of property from husband or wife, § 164. prioritv between and judgment creditor, § 1214. rishts as against unrecorded instruments, §§ 1214, 1217. rights as against implied or resulting trust, § 856. BONDS, incorporations for giving, p. 725, Stat, restricting issue of by corporations, § 359. negotiable, remains so after dishonor, § 3262. religious societies may issue bonds, § 598. corporation formed to act as security, p. 725, Stat. BORROWER, For Use. ' does not acquire title, § 1885. must use what care, § 1886. of animals, obligations of, § 1887. must use what skill, § 1888. must repair negligent injuries, § 1889 may use thing, for what purpose, § 1890. must not relend, § 1891. must bear what expenses, § 1892. when lender must indemnify, §§ 1893, 1894. must return thing borrowed, without demand, § 1895. must return thing borrowed, where, § 1896. For Exchange, acquires title, § 1904. must bear all expenses, § 1904. cannot be required to return loan before what time, § 1905. Of Money, must repay in current money, § 1913. See Loan. INDEX. 869 BOTTOMRY. See Respondentia. defined, § 3017. extent of insurable interest of ship hypothe- cated by, § 260. owner may hypothecate upon, in any case, § 3018. shipmaster may hypothecate upon, when, §§ 3019-3021. rate of interest upon, § 3022. rights of lender upon, when not necessary, § 3023. stipulation for personal liability under, void, § 3021. loan upon, when due, §§ 3025, 3026. lien of, how lost, §302(. lien of, takes priority over other liens, when, § 3028. priority of several liens of, § 3029. See Lien. BOUNDARIES, by water, § 830. by way, §831. coterminous owners bound to maintain, § 841. BRIDGE CORPORATIONS. See Corporations. BROKERS, authority to be in writing, § 1624. BUILDING AND LOAN ASSOCIATIONS, defini- tion of building and loan associations, p. 735, §20, Stat. act imposing tax on stoclis not applicable to, § 64812. annual report. § 644. arrears in payments, § 639. articles of incorporation, § 033. borrow money. § 641. "building and loan association," term, what in- cludes. § 648. capital stock. § 634. certificates of stock, § 634. definition of, § 648. entrance and transfer fee, § 634. existing associations mav elect to continue bus- iness. § 646. licenses, p. 733, § 17. Stat. license, revocation of. p. 733, § 17, Stat. license, failure of association to take out is a misdemeanor, p. 733, § 17, Stat. fines. § 634. forfeiture, § 639. foreign corporations doing business, deposit bv, § 633. formation of, § 633. free shares may be retired. § 635. J-70 INDEX, BUILDING ETC. ASSOCIATIONS— Continued, loan and interest, when may be repaid, § 638. matured value, § 636. maturity of stoclv, § 636. may buy real estate, § 640. membership, § 643. money to be loaned, § 637. one-third of receipts only applicable to pay- ment of matured shares, § 636. profits and losses, § 642. rate of interest, § 638. retirement of shares, § 635. withdrawal of stockholders, p. 735, § 19, Stat, six montlis' arrears and two months' notice worli a forfeiture, § 639. subject to tlie provisions relating to the bank commissioners, § 647. foreign, claim against, § 645. duty to keep record of transactions, p. 730, § 7, Stat, board of commissioners of, p 727, § 1, Stat, subject to supervision and examination of commissioners, p. 727, § 1, Stat, commissioners, duties of, p. 728, § 4, et seq., Stat, board of commissioners, their duties and pow- ers, p. 727, Stat, commissioners of, qualification of, p. 728, § 4, Stat, commissioners of, salary, p. 728, § 2, Stat, commissioners, secretary of, p. 728, § 2, Stat, commissioners, rent, stationery, fuel, etc., p. 728, § 3, Stat, commissioners, office, where kept, p. 728, § 3, Stat, commissioners, refusal of trustees to be sworn, p. 730, § 8, Stat, commissioners, swearing of trustees by, p. 730. § 8, Stat, commissioners, assessment to pay expenses of. p. 732, § 15, Stat, commissioners, powers of, p. 730, § 8, et seq., Stat, commissioners, duty of to report to attorney general, p. 731. § 10, Stat, commissioners, failure to report to attorney general, punishment of, p. 731, § 10, Stat, annual report of association to commissioners, p. 734, s- 18, Stat, appraisers to appraise value of assets, p. 780, §7, Stat. INDEX. 871 BUILDING ETC. ASSOCIATIONS— Coutiimed. commissioners, examining into affairs of, p. 732. § 12, Stat. appraisement of value of securities, p. 730, § 7, Stat. proceedings against where conducting hazard- ous business, p. 730, § 9, Stat. attorney general, duty of where business is be- ing conducted hazardously, p. 730, § 9, Stat. assessment, how collected, p. 733, § 16, Stat. receiver, appointment of, p. 730, § 9, Stat. receiver, examinius- into acts and conduct, of, p. 730, § 9, et seq., Stat. schedule of assets on appointment of receiver, p. 731, § 11. Stat. BURDEN, consent of party entitled to benefit nec- essary to transfer of, § 1457. voluntary acceptance of benefit is assumption of, § 1589. he who talves benefit must bear. § 3521. BURDE> OF PROOF, on whom to prove want of consideration in writing. § 1615. BURIAL, lot inalienable "after burial therein, § 613. risht of, as easement. § 801. rio-ht of, as servitude. § 802. BUSINESS days, what are, § 9. right of transacting, on land, an easement, § 801. good-will of, subject of ownership, § 665. good-will of, transferable. § 993. good-will of, defined. § 992. contract not to pursue, how far void, § 1673. general partner must not engage in separate, §§ 2436, 2437. liabilitv of partner engaging in separate, § 2438. co-operative business corporations, p. 749, § 1, Stat. BUYER. See Sale. BY-BIDDING at auction, a fraud. § 1797. BY-LAWS. See Corporations. of benefit society, p. 725, § 5. Stat. CANAL CORPORATIONS. See Corporations. CANCELLATION of grant of real property does not revest title. § 1058. of will, when operates as revocation, § 1292. of will, proof, how made, § 1293. of written contract, § 1699. of ncceptance by acceptor, when allowed, § 3198. 872 INDEX. CANCELLATION— Continued. of written instrument, adjudged, when, § 3412. of written instrument, void on face not al- lowed, § 3413. of written instrument, partial, may be adjudg- ed, § 3414. CARE. See Negligence; Skill. Slight, gratuitous depositary to use, § 1846. gratuitous employee, § 1975. gratuitous carrier of property, § 2114. Ordinary, depositary for hire to use, § 1852. hirer, § 1928. employee for reward, § 1978. voluntary agent, § 2078. gratuitous carrier of persons, § 2096. carrier of property for reward, § 2114. trustee, § 2259. Great, borrower to use, § 1886. employee for his own benefit, § 1979. shipmaster, § 2043. carrier of messages for reward, § 2162. utmost, carrier of persons for reward to use, § 2100. carrier of messages bv telegrapli, § 2162. CARELESSNESS. See Care; Negligence. CARGO, sacrifice may be made for safety of, § 2148. such sacrifice must be borne ratably, § 2151. how valued on general average, § 21.53. shipmaster agent for owners of, § 2375. ship's manager has not power to purchase, § 2389. seaworthiness of ship for purpose of insuring, § 2687. insurance on, when voyage is brolcen up, § 2707. shipmaster may sell, when, § 2379. shipmaster may hypothecate, when, §§ 2377, 3038. hypothecation of. under respondentia, §§ 3036- 3038. owner of, entitled to repayment from ship- owner of amount paid under respondentia, § 3040. See General Average; Respondentia. CARRIERS. See Freight and Freightage; Rail- roads. defined, § 2168. contract of carriage, defined, § 2085. different liinds of, § 2086. marine and inland carriers defined. § 2087. INDEX. 873 ARRIERS— Continued. must accept what is offered, § 2169. when must not give preference. § 2170. may give preference to government, § 2171. must start when, § 2172. compensation of, § 2173. obligations of. how modified by agreement or no^tice, § 2174. cannot be relieved from certain liabilities, § 2175. effect of written contract of, § 217G. mortgage of property of, where to be recorded. § 2961. duties of carriers by sea, § 2088. gratuitous, obligations of, §§ 2089, 2090. has insurable interest, § 2548. consignment. See Consignment. 'Freightage, defined, § 2110. when payable, § 2136. consignor, when liable for, § 2137. consignee, when liable for, § 21.38. on what chargeable, § 2189. when apportioned, §§2140-2142. in case of extra i3erformauce, § 214?. lien for, § 2144. of messages, by telegraph, must transmit in what order, § 2207. in other cases, must transmit in what order, § 2208. liability for improper delay, § 2207. must deliver, how, § 2161. degree of care and diligence required of, § 2162. Of persons, must carry luggage, § 2180. luggage. See Luggage. liability of, for luggage. § 2181. must deliver luggage, when, § 2183. bicycles as luggage, § 2181. gratuitous, obligations of, § 2096. for reward, must use utmost care, § 2100. for reward, must provide safe vehicles, § 2101. for reward, must not overload vehicles, §§ 2102, 2185. for reward, must afford reasonable accommo- dation, § 2103. for reward, must travel without delay, § 2104. passengers. See Passengers. refusal to sell ticket to emigrant, when a mis- demeanor. See Penal Code, Appendix, title Emigrants. for reward, must i^rovide sufficient accom- modation, § 2185. 874 INDEX. CARRIERS— Continued. for re^vard, must provide vehicles, § 2184. for reward, regulations for conducting busi- ness, § 2186. for reward, contributory negligence of passen- ger, § 2186 n. for reward, may demand fare, when, § 2187. for reward, may eject passenger for nonpay- ment of fare, §§ 2188, 2189. for reward, cannot demand payment after ejec- tion, § 2190. for reward, has lien on luggage, § 2191. of property, for reward, must use ordinary care, § 2114. gratuitous, must use slight care, § 2114. must obey directions, § 2115. duties of, in case of conflicting orders, § 2116. must not stow freight on deck, § 2117. must not deviate, § 2117. must not vitiate insurance on freight, § 2117. must deliver freight where, §§ 2118, 2119. must give notice of arrival when, § 2120. may terminate liability how, § 2121. may place in warehouse when, § 2122. must give bills of lading, § 2126. may deliver freight to holder of bill of lad- ing, § 2130. when may demand surrender of bill of lading, § 2131. may throw freight overboard, when, § 2148. notice must be given to, to efCect stoppage in transit, § 3079. duties of, in respect to freight going beyond its raute, § 2201. must give evidence of cause of loss, § 2202. obligations of, in other respects, § 2203. liability of, for loss, §§ 2194, 2200. liability of, for delay, § 2196. liability of, for negligence. § 2195. marine, liability of, §§ 2197, 2198. CEMETERIES, cemetery corporations. See Cor- porations. power of benevolent or religious society to dis- pose of burial plot, § 598. disinterment or transportation of dead bodies, see Penal Code, Appendix, title Public Health. pernut to remove dead bodies, see Penal Code, Appendix, title Public Health. cemetery corporations, acts relating to, p. 736, Stat. INDEX. 875 CERTIFICATE of indentures of apprenticeship, § 275. false, by officer of corporation, § 316. for continuing corporate existence of corpora- tion, § 405. of ship-master as to exertion of seamen to save ship, § 2059. of names of partners, § 24G8. of proof of loss under insurance, when dis- pensed with, § 2037. of discharge of mortgage to be filed with re- corder, §§ 2939, 29-40. of acknowledgment. See Acknowledgment, of incorporation. See Corporations, of marriage. See Marriage, of partnership. See Partnership, of stock. See Corporations, act legalizing defective acknowledgments, p. 703 et seq., Stat. CHAMBERS OF COMMERCE, act to provide for, p. 737, Stat. CHARITABLE USES, what valid, §847. restriction on power to devise to, § 1313. CHARTER PARTY defined and regulated, § 1959. shipmaster may enter into, in foreign port, § 2376. ship's manager may enter into, § 2388. certain insurable interest exists under, § 2663. insurable interest of charterer. § 2665. CHASTITY, want of personal, avoids promise to marry made in ignorance of fact, § 62. CHATTEL INTEREST defined, § 765. CHATTEL MORTGAGE. See Mortgage. CHATTEL REAL defined, § 675. when estate for life of third person becomes, § 766. limitation of, § 770. CHECK, a negotiable instrument. § 3095. defined. § 3254. etfect of delay in presentment of, § 3255. title of indorsee to, without notice of dishonor, § 3255. CHILD. See Parent and Child. en ventre sa mere, rights of, § 29. CHOSES IX ACTION defined, § 953. transfer of and survivorship in, § 954. value of, how determined in assessing dam- ages, § 356. CHURCH, right to seat in, as easement, § 801. right to seat in, as servitude, § 802. 876 INDEX. CHURCH— Continued. corporations for maintenance of, § 286. CmCUMVENTION. See Fraud. contract obtained by not enforced, § 3391. CITIES, grant of lands of state in, for railroad purposes, § 475. lease of lots, void when, § 718. CIVIL CODE. See Code, Civil. CLERK OP COUNTY, duty of, regarding mar- riage licenses, § 69. articles of incorporation to be filed with, § 296. of court of record may take aclvnowledgment, § 1181. duty of, where acknowledgment is taken by justice of peace, § 1194. petition for appraisement of homestead to be filed with, § 1247. must keep register of partnership names, § 2470. certificate of formation of special partnership to be filed with, § 2480. notice of dissolution of special partnership to be filed with, § 2509. CODE, CIVIL, title of, § 1. when takes effect, § 2. not retroactive unless so declared, § 3. construction of, §§4, 5. affects no action commenced or right accrued before its taking effect, § 6. effect on existing statutes, § 20. how cited, § 21. effect of amendments of 1874 to, § 5, note. CODICIL, included in term "will." § 14. execution of. republishes will, § 1287. revocation of will revokes, § 1305. COHABITATION, when prevents nullifying mar- riaa-e, § 82. COLLATERAL AVARRANTIES abolished, § 1115. COLLECTION, agent for, duties of, § 2021. partner acting in liquidation may make, § 2461. effect of warranty of, § 2800. COLLEGES, corporations for maintenance of, § 286. formation of corporation, § 649. powers of trustees, § 650. transfer of property to, § 651. consolidation of, effect of, § 653. consolidation of, transfer of property, § 653. authorized to consolidate, § 652. - - - - " 652. 1 INDEX. 87T COLLISION, rules for avoiding, § 970. from breach of rules of navigation, § 971. from breach of rules of navigation implies willful default, § 972. loss by, how apportioned, § 973. COLLUSION, divorce must be denied on showing, § 111. defined, § 114. presumption of, established by lapse of time, § 125. COMBINATIONS, act to prevent In sale of live- stock of, p. 705, et seq. COMMERCIAL PAPER. See Bills of Exchange; Checks; Negotiable Instruments; Promissory Notes. COMMISSIONER OF DEEDS. See Acknowledg- ments. COMMON CARRIERS. See Carriers. COMMON LAW, rule of, consti'uction of statutes in derogation of, not applicable to Code, § 4. rule of decision. Civil Code considered continuation of, § 5. COMMUNICATION, privileged, § 47. private, in -writing, ownership of, § 985. of consent, essential to contract, § 1565. of consent to contract, how made. §§ 1581. 1582. of consent to contract, when complete, § 1583. upon insurance, what must be made, § 2563. upon insurance, what need not be made, § 2564. upon insurance, of nature, etc., of interest not required, wheij, § 2568. upon insurance, on matters of judgment, un- necessary, § 2570. upon reinsurance, what required, § 2647. upon marine insurance, what required, § 2669. of acceptance of offer to guarantee, necessary, § 2795. COMMUNITY PROPERTY. See Husband and Wife. COMPENSATION of appraisers of homestead, § 1258. of depositarv for hire, § 1853. of finder, § 1867. borrower entitled to certain, §§ 1892, 1894. for loan called interest, § 1915. duties of employee for, § 1978. in case contract of service is continued beyond two years, § 1980. Civ. C' de— 74 878 INDEX. I COMPENSATION— Continued. continuing services alter death of employer, § 1998. of employee dismissed for fault, § 2002. of employee quitting for cause, § 2003. managing owner of sliip not entitled to, § 2072. of voluntary depositary, § 2078. of common carrier, § 2173. of trustees, §§ 2273, 2274. partner not entitled to, § 2413. lienor not entitled to, § 2892. generally given by law, § 3275. for mistake, when allowed, § 3391. for partial failure to perform, § 3392. may be required on rescission, when, § 3408, of assignee for benefit of creditors, § 3471. COMPOUND INTEREST. See Interest. COMPUTATION of time, §§ 10, 14. of term of suspension of power of alienation, § 912. of period of minority, § 26. CONCEALMENT. See Fraud, avoiding condonation, § 120. by trustee when fraudulent, §§ 2228, 2234. partner not to obtain advantage by, § 2411. in insurance. See Insurance. CONDITION in indentures of apprenticeship, §§ 271, 272. of ownership, § 707. kinds of, of ownership, § 708. of ownership, when void, § 709. restraining marriage, when void, § 710. restraining alienation, when void, § 711. delivery of grant to grantee on, void, § 1056. grant may be deposited with third person, to be delivered on performance of, § 1057. tenant without notice not liable for breach of, of lease, § 1111. kinds of, in obligations, § 1434. performance of, when excused, § 1440. impossible or unlawful, void, § 1441. offer of performance must be free from what, § 1494. of proposal, must be fulfilled by acceptance, § 1582. of proposal, performance of, is acceptance, § 1584. failure to perform revokes proposal, § 1587. written, governing auction sale, not to be modified orally, § 1795. I INDEX. 879 CONDITION— Continued. ConcuiTent, in obligations, what, § 1437. what may depend on performance of, § 1498. Precedent, grant on, only an executory con- tract, § 1110. in will, what, § 1346. in will, effect of, § 1347. in will, when deemed performed, § 1348. in obligations, what, § 1436. when must be performed, § 1439. what may depend on performance of, § 1498. Subsequent, condonation implies certain, § 1117. right of re-entry for breach of, transferable, § 1046. property to be reconveyed on nonperformance of, § 1109. in will, what, § 1349. in obligations, what, § 1438. CONDONATION. See Divorce. CONFINEMENT, unlawful or fraudulent, avoids contract, § 1569. master of ship may subject seamen to, § 2037. master of ship may subject passengers to, § 2038; See Duress. CONFUSION OF GOODS. See Accession. ownership of things, formed by, §§ 1025-10.32. CONNIVANCE, divorce must be denied on show- insr, § 111. defined, § 112. how manifested, § 113. presumption of, in certain cases, § 125. contract obtained through, voidable, § 1689. CONSENT, of parties necessary to marriage, § 55. alone does not constitute marriage, § 55. who are capable of giving, to marriage, § 56. to marriage, how manifested and proved, § 57. incapacity to, when ground for annulling mar- riage, § 82. separation by, not desertion, § 99. to separation, a revocable act, § 101. corrupt, § 112. corrupt, how manifested, § 113. mutual, sufficient consideration for agreement to separate, § 160, of husband not required for transfer of wife's separate property, § 162. written, of mother, necessary to transfer cus- tody of child, § 197. of wife, necessarv for married man to adopt child, § 223. 880 INDEX. CONSENT— Continued. of child's parents necessary to adopt child, § 224. of child, when necessary for its adoption, § 225. for apprenticeship of child, §§265, 266. of party entitled to benefit necessary to trans- fer of burden, § 1457. contract may be rescinded by mutual, § 1689. thing obtained without, of owner, to be re- stored, § 1712. of depositor necessary to use of deposit by depositary, § 1835. of landlord necessary to attornment to stran- ger, § 1948. of principal, necessary to release of factor, § 2030. voluntary interference with property without, § 2078. •of beneficiary, necessary to allow trustee to hold adverse interest, § 2233. mutual, necessary to create trust, § 2251. not necessary to rescission of ratification, § 2314. of all, necessary to creation of partnership, § 2397. unanimous, necessary to admission of new partner, § 2397. not necessary to create guaranty, § 2788. to contract. See Contract. CONSIDERATION, valuable, defined, § 14. minor must restore, on disaSirmance of con- tract, § 35. mutual consent to separation sufficient, § 160. effect of transfer where paid by third party. § 853. not necessary to validity of voluntary trans- fer, §§ 1040, 1146. old obligation extinguished by new, § 1541. written instrument prima facie imports, § 1614. on whom falls burden of proof to show want of sufiicient, § 1615. good, defined, § 1605. how far moral obligation is good, § 1606. must be lawful, § 1607. effect of illegality of, § 1608. may be executed or executory, § 1609. executory, need not be specified, § 1610. executory, how ascertained, § 1611. effect of impossibility of ascertaining, §§ 1612, 1613. contract may be altered without new, § 1697. INDEX. 881 CONSIDERATION— Continued. not necessary to create agency, § 2308. necessary to guaranty, when, § 2792. need not be expressed in written guaranty, § 2793. presumption of, in negotiable instruments, § 3104. effect of want of, in negotiable instruments, § 3122. of contract. See Contract. CONSIGNMENT, defined, §2110. carrier must obey consignee, when, § 2116. when carrier must obey consignor, § 2116. storage of freight on decli, § 2117. freight to be delivered to consignee, §§ 2118, 2119. notice of arrival of freight to be given to con- signee, § 2120. when consignee refuses to accept, freight may be stored, § 2121. consignee liable for freightage, when, §§ 2137, 2138. effect of acceptance of part performance, § 2141. assent of consignee to special contract, how proved, § 2176. consignor may stop goods in transit on insol- vencj' of consignee, § 3076, what is insolvency of consignee, § 3077. CONSTRUCTION. See Contract— Interpretation. CONSTRUCTIVE notice defined, §§ 18, 19. delivery, § 1059. fraud, defined, § 1573. CONSUL of United States may take acl^nowledg- ments, § 1183. CONTEMPT, ofiicer taking acknowledgment may punish for, § 1201. CONTINGENT INTEREST, defined, § 695. not void because improbable, § 697. CONTINGENT REMAINDER on prior remainder in fee, § 772. how credited, § 773. on term of years, § 776. CONTINUANCE of existence of corporations, §§ 287, 401, CONTINUING GUARANTY, See Guaranty. CONTRACTS. See Obligations, alteration. See Alteration, conditional alternative. See Alternative, cancellation. See Cancellation. 882 INDEX. CONTRACTS— Coutiniied. rescission. See Kescission. parties, wlio may be, § 155G. when minors, etc., may be parties, § 1557. must be capable of ideutiUcation, § 1558. for benefit of third person may be enforced by him, § 1559. minor may mals;e, subject to disaffirmance, § 34. of minor, when and how disaffirmed, § 35. minor or insane person cannot disaffirm for necessaries, § 36. person entirely without understanding cannot make, § 38. when person of unsound mind may make, § 39. when person of unsound mind cannot make, §40. husband and wife may make, § 58. Creation, by express words, § 1620. by implication. § 1621. orally, §1622. by writing, §§ 1623, 1624. by writing supersedes oral negotiations, § 1625. by writing, when takes effect, § 1626. by writing, delivery necessary to, § 1627. provisions abolishing seals, § 1629. proposal and acceptance. See Proposal. Consideration, good defined, § 1605. how far moral obligation is good, § 1606. must be lawful, § 1607. effect of illegality of, § 1608. may be executed or executory, § 1609. executory, need not be specified, § 1610. executory, how ascertained, § 1611. effect of impossibility of ascertaining, §§ 1612, 1613. contract may be altered without new, § 1697. consideration. See Consideration. Validity, defined, § 1667. certain contracts declared, § 1668. fixing damages, § 1670. exception, § 1671. restraining trade, when void, § 1673. restraining trade, when not. §§ 1674. 1675. restraining marriage, § 1676. what must be in writing, § 1624. illegality of object renders wholly void, when, § 1598. seamen not to be deprived of wages or lien by, § 2052. I INDEX. 883 CONTRACTS— Contiiiiie.l. with seamen, restrictions on. § 2053. Validity— duress or undue influence renders con- tract voidable. §§ 1567, 1575. Consent, wlien deemed mutual. § 1580. when deemed communicated. §§ 1581, 1582. when deemed complete. § 1583. proposal of, when deemed accepted, § 1584. acceptance of proposal must be absolute, § 1585. revocation of proposal, § 1586. rev(tcation. how made. § 1587. voidable, may be ratified. § 1588. acceptance of benefit, when deemed, § 1589. may be rescinded. § 1689. essential elements of, § 1565. when not free, not void but voidable, § 1566. apparent, when not free, § 1567. when deemed obtained throucrh fraud, § 1568. duress in obtaining, defined, § 1569. menace in obtaining, defined, § 1570. fraud in obtaining, defined, § 1571. actual fraud in obtaining, defined, § 1572. constructive fratid in obtaining, defined, § 1573. undue influence in obtaining defined, § 1575. mistalie in obtaining, defined, § 1576. mistake of fact in obtaining, defined. § 1577. mistalve of law in obtaining, defined, § 1578. mistalve of foreign law in obtaining, defined, § 1579. restraint of trade. See Restraint of Trade. Interpretation and effect to be uniform, § 1635. to effectuate mutual intention, § 1636. to ascertain intention, § 1637. to be governed by language used, § 1638. to be governed by written words, § 1639. exception in cases of fraud, § 1640. entire contract to be considered in, § 1641. several contracts to be fallen together in, § 1642. to be favorable to validity, § 1643. according to ordinary sense of words, § 1644. technical words. § 1645. what law governs, § 1646. by surrounding circumstances, § 1647. subject-matter to be considered in. § 1647. to be restrained by its object, § 1648. uncertainty in, to be construed against, when, §§ 1649, 1654. 884 INDEX. CONTRACTS— Continued. general intent to prevail in, § 1650. oriiiinal and -u^ritten parts in, to prevail, § 1651. i Interpretation— repugnances in, § 1652. | repugnances in, § 1652. I inconsistent words to be rejected in, § 1653. what stipulation implied in, § 1655. incidents to contract implied in, § 16-56. in respect to time of performance, § 1657. when presumed to be joint and several, §§ 1659, 1660. executed and executory, § 1661. of sale not revocation of will. § 1301. executed, voluntary transfer is, § 1040. executory, grant on condition precedent is, § 1110. conditional obligation, involving forfeiture, how construed. § 1442. non-negotiable written, transferable, § 1459. Object, defined, § 1595. must be lawful, possible, and ascertainable, § 1596. when deemed possible, § 1697. when illeirality of, renders contract wholly void, § 1598. Extinction and performance and alteration in general, § 1682. by rescission, § 1688. by rescission, in what cases, § 1689. certain stipulations do not prevent rescission, § 1690. by rescission, how effected, § 1691. by alteration, § 1697. sealed, how modified, § 1698. by cancellation and destruction. § 1699. by unauthorized alteration, § 1700. alteration of duplicate not prejudice, § 1701. impossibility. See Impossibility. time, when of essence of, § 165S. place of performance. See Place of Perform- ance. offer of performance. See Offer of Perform- ance. part performance. See Part Performance. performance. See Performance. prevention of performance. See Prevention of Performance. to marry, how parties may be released from, §62. conditional, delivery cannot be made, § 1056. INDEX. 885 CONTRACTS— Coiitiniiefl. failure of, when .uroimd for rescission, § 1689. Extinction— conditional obligation, prerequisites to enforcing. § 1439. conditional obligation, performance of, when excused. § 1440. conditional offer of performance, when valid, § 1494. alteration. See Alteration. contract in writing, when may be altered by, § 1698. damages for breach. See Damages. to convey real property, damages for breach of, § 3306. to purchase real property, damages for breach of, § 3307. to sell personal property, damages for breach of, §§ 3308, 3309. to buy personal property, damages for breach of, § 3311. Particular contracts. See also particular title. of a])prenticeship of alien minor, § 274. to relieve directors from liability, § 327. to sell personal property, §§ 1140, 1739. novation, § 1532. novatiou, definition of, § 1549, novation, essential elements of, § 1550. novatiou for benefit of third person may be en- forced bv him, § 1559. for sale, what, § 1726. to sell, defined, § 1727. to buy, defined, § 1728. to sell or buy, defined, § 1729. to sell, what may be subiect of, § 1730. to sell real property, §§ 1731, 1741. to sell real property binds seller to insert cer- tain covenauts, § 1733. form of such covenants, § 1734. to manufacture from materials furnished by m.anufacturer, § 1740. of sale with warranty entitles buyer to inspect goods, § 1785. of sale mav be rescinded for breach of war- ranty, § 1786. certain, with common carrier, void, § 2175. obligations of common carrier can be altered onlv by, § 2174. effect of written, with common carrier, § 2176. express, not necessary to create mining part- nership, § 2512. 886 INDEX. CONTRACTS— ContiiuiecL not to transfer insured interest, wlien void, § 2599. Particular Contracts — of indemnity, § 2772. certain, affecting liens void, § 2889. what not allowed in negotiable instrument, § 3093. marriage a personal relation arising out of civil, § 55. of separation by husband and wife, § 159. husband and wife cannot alter their legal re- lation by, except, § 159. consideration of such contract, § 160. for payment of money by wife, § 167. marriage settlement, how executed, § 178. marriage settlement must be acknowledged and recorded, § 179. effect of recording or non-recording marriage settlement, § 180. minor may make marriage settlement, § 181. in indentures of apprenticeship, § 272. conditional obligation, § 1434. conditional obligation, liability of guarantor on, § 2808. CONTRIBUTION, joint debtor may require, when, § 1432. release of joint debtors does not affect rights. of others to. § 1543. to general-average loss, § 2152. between insurers, in case of over-insurance, § 2621. between insurers, in case of double insurance, § 2642. in case of loss under marine insurance, § 2745. between co-sureties, § 2848. CONTRIBUTORY NEGLIGENCE. See Negli- gence. CONTROLLER OF STATE, corporation to trans- mit selection of right of way to, § 478. duty where property escheats to state, § 1406. CONTROVERSY between ship-owners, how de- termined. § 694. CONVERSION, directed bv will, when takes efifecL § 1338. extinction of lien by. § 2910. of personal propertv, damages for wronsrful. §§3336, 3338. " CONVEYANCES. See Conditions; Covenants; Transfer, minor may make, subject to disaffirmance, §34. INDEX. 887 CONVEYANCES— Continued. when person of unsound mind may make, § 39. when person of unsound mind cannot mal^e, § 40. of rents and reversions, rights of grantee, §821. grantor of trust may grant reversion, § 864. interest in grantor of express trust, § 866. deed, ownership of title, § 994. a transfer in writing, § 1053. when talies effect, § 1054. date, § 1055. delivery of, must be absolute, § 1056. subject to condition, and in possession of third person, § 1057. surrendering or canceling does not operate as retransfer, § 1058. words of inheritance not necessarv to pass a fee, § 1072. what title passes by, § 1083. by married woman void, unless acknowledged, Loav, § 1093. fee-simple title presumed to pass, § 1105. in fee-simple carries with it subsequently ac- quired title, § 1106. how far conclusive against grantor, § 1107. how far conclusive on purchaser, § 1107. by owner for life or years, § 1108. on condition subsequent, § 1109. on condition precedent, § 1110. valid without attornment of tenant, § 1111. of title to highway, § 1112. what covenants included in, § 1113. by married woman, § 1187. by heirs where will not probated, § 1364. defined, § 1215. conveyances by persons whose names chang- ed, p. 765, § 1, Stat. priority between bona tide purchaser and judg- ment creditor, § 1214. delivery, necessary, § 1054. date, presumption of time of, 1055. to grantee is necessarily absolute, § 1056. in escrow. § 1057. surrendering or canceling grant does not re- convey, § 10.58. constructive. § 1059. gratuitous grants take effect immediatelv; ex- ception, § 1060. tax deeds. See Taxes. Form, simple, § 1092. 888 INDEX. CON VEYANCE S— Continued. by married woman, § 1093, Form— by attorney in fact, §§ 1094, 1095. acknowledgment. See Acknowledgment, recording. See Recording, recording of record of conveyances by public officers, p. 766, § 2, Stat, record of conveyances by persons whose names changed, p. 766, § 3, Stat. Interpretation, how made, § 1066. of limitations. § 1067. by aid of recitals, § 1068. against grantor, § 1069. of irreconcilable provisions, § 1070. of "heirs," "issue," etc., § 1071. CONVICTION of felony, ground for divorce, § 92. when divorce for, must be commenced, § 124. CO-OPEKATIVE BUSINESS CORPORATIONS, act defining, p. 749, Stat. CO-OPERATIVE SOCIETIES. See Corporations, Kinds of— Religions, Social, and Benevolent, not insurance companies, § 451. how formed, p. 742, § 1, Stat, rights and interests of all members equal, p. 743, § 2, Stat, liability of members, p. 743, § 2, Stat, articles of association, p. 745, § 3, Stat, by-laws, p. 744, § 4, Stat, by-laAvs must be recorded, p. 745, § 5, Stat, property is subject to execution, p. 746, § 6, Stat, business may be changed, p. 746, § 7, Stat, profits, how divided, p. 746, § 8, Stat, powers of association, p. 746, § 9, Stat, associations may be consolidated, p. 747, § 10, Stat, associations may be dissolved, p. 748, § 11, Stat. attorney-general to bring suit, p. 748, § 12, Stat, act to be liberally construed, p. 749, § 13, Stat. COPARTNERSHIP. See Partnership. CORPORATIONS. See also Corporations, Kinds of, defined, § 283. what are public and private, § 284. how formed, § 285. for what purposes formed, § 286. how may continue their existence, § 287. certain, not affected by the code, § 288. name of instrument creating, § 289. INDEX. 889 CORPORATIONS— Continued. term of existence, § 290. wlio members and who stockliolders, § 298. change of principal place of business of, § 321. to tile certified copy of articles in county where it holds property, § 209. misnomer not to invalidate instrument, § 357. dealers with, cannot question existence, § 358. where proceedings under execution may be had against, S 393. how maj extend corporate existence, § 401. examination of books of, § 587. acknowledgment of instrument by, § 1161. requisites of such, § 1185. certificate of such acknowledgment, § 1190. other than for profit, how formed, § 593. lien of servants where wages not paid, p. 752, § 2, Stat, liens of mechanics and laborers on nonpay- ment, p. 750, § 2, Stat. division of property among stockholders, § 309. IDaymenc of wages of mechanics and laborers, p. 752, Stat. act allowing corporations to do business on equal terms, p. 827. Stat. Articles of incorporation, defined, § 289. what to contain, §§ 290, 291. prerequisites to filing, §§ 294, 295. must be subscribed by whom, § 296. certificate to issue after filing, § 296. certified copy of, prima facie evidence of facts therein, § 297. to be filed in county where corporation holds property, § 299. misnomer in, does not invalidate, § 367. amendment to articles or certificate of, § 362. certified copy of certificate prima facie evi- dence of contents, § 297. articles of incorporation, what to contain, § 290. certain, to state what additional facts in arti- cles, §291. corporators, qualifications and acknowledg- ment by, § 292. prerequisite to filing articles of incorporation of certain, §§ 293, 294. oath and payment of subscription, § 295. articles of incorporation of, where filed and cer- tificate, §§ 296, 299. erroneous filing of articles of incorporation, cor- rection of, § 363. Civ. Code— To 890 INDEX. CORPORATIONS— Continued. name to be stated in articles of incorporation, § 290. error of, in articles of incorporation, not to in- validate, § 357. Assessment of stoclv, directors may levy, § 331. limit of, §§332, 333. order for levying, § 334. j notice of, and form, § 335. ' publication and service of notice, § 336. delinquent notice, its form and contents, §§ 337, 338. publication of delinquent notice, § 339. sale of stock to pay, § 341. not to be invalidated, § 346. action to recover stock sold for delinquent, §347. By-laws, adoption of. when, how, and by whom made, § 301. may provide for annual election of directors, §302. may be made for certain purposes, § 303. to be recorded. § 304. how amended, § 304. to be adopted at first meeting, § 306. by-laws of corporations formed other than for profits, what may provide, § 599. Debts, not to be created beyond actual sub- scribed stock, § 309. when oflicer becomes liable for, § 316. liability of stockholder for, § 322. Dividends, how made, and how not made, § 309. on shares of married women, how paid, § 325. Dissolution, by forfeiture for non-user, § 358. where provided for, § 399. directors to be trustees for creditors upon, §400. Elections oC directors. § 302. how conducted, § 307. majority of stock to be represented, § 312. who may vote, § 313. may be postponed, § 314. complaints and quo warrantor, etc., regarding, §315. Examination, how and by whom made, § 382. made by legislature, § 383. Foreign, to designate person upon whom process to be served, § 403; p. 764, Stat. penalty for failure, § 403. deposit before doing business, § 645. INDEX. 891 CORPORATIOXS— Continued. doing business before malting a deposit a mis- demeanor, § 645. insurance companies doing business on assess- ment plan, requirement of, p. 780, § 6, Stat. Franchise, levy upon and sale of, § 388. rights and duties of purchaser of, at sale, §§388, 389. corporate powers after sale of, § 391. redemption, § 392. place of sale of, under execution, § 398. renewal of, act relating to, p. 817, § 2, Stat. Meetings, when first to be called, § 301. time, manner, and place to be specified in by- laws. § 303. by-laA\ s only to be amended at special, § 304. officers to be removed only at general, § 310. justice of peace may order, § 311. majority must be present, § 312. who may vote, § 313. by consent to be valid, § 317. proceedings at, to be binding, § 318. where held, § 319. special, how called in certain cases, § 320. for extension and continuation of corporate ex- istence, § 401. Officers, married women may become, § 285. oath of, on filing articles of incorporation, § 295. by-laws to regulate compensation and duties, §303. directors to elect president, treasurer, and sec- retary, § 308. proceedings for removal of, § 310. liability of, making false certificate, etc., § 316. proceedings for removal of, § 587. civil proceedings by and against, for removal of officers, § 587. fraud or misrepresentation by officers of, p. 762, Stat, act punishing false report by officer of. See Penal Code, Appendix, title Corporations, directors, how many, and qualifications of, § 305. directors, vacancy in office, how filled, § 305. directors, election, how made, when, and by whom, § 307. directors, organization of board, § 308. directors, must malce dividends, how, § 309. directors, liability of, in certain cases to credi- tors. § 309. 892 INDEX. CORPORATIONS- Continued. Officers— directors, removal of, § 310. directors may postpone election, when, § 314. directors, boolj and notice of, by banks. § 321. directors may levy assessments, § 331. directors on dissolution, to be trustees for creditors, § 400. directors, contracts to relieve directors from liability, §327. directors, what actions against never barred, §309. Organization, dissolution for want of. § 360. within what time to be effected. § 360. Powers, defined and prescribed, § 354. limitation of, § 355. banking expressly prohibited, § 356. when forfeited for non-user, § 358. to increase or diminish capital stock, § 359. to acquire real property, § 360. not affected by sale of franchise, § 391. of corporations not formed for profit, § 599. may acquire real estate. §§ 265, 595. cannot take by will. § 1275. may own and improve lot and house to carry on business in, § 360. acquiring lot and building where business car- ried on, §.363; p. 763, Stat. act to prevent combinations to obstruct sale of livestock, p. 705, Stat, act authorizing corporation to act as executor, p. 754. Stat. Records, how kept and what to contain, § 377. "stock and transfer" book, § 378. Stock, amount to be subscribed before incorpo- rating, § 293. oath of officer to subscription, § 295. capital stock of banking, § 300. majority of stibscribed necessary to adoption of by-laws, § 301. two-thirds of stibscribed, necessary to amend by-laws, § 304. majority of subscribed, necessary to election, § 307. dividends not to be made from capital, § 309. debts not to be incurred beyond subscribed, § 309. capital must not be increased or diminished except, §§ 309, 359. on dissoltitiou, may be divided, § 309. INDEX. 893 CORPORATIONS— Continued. Stock— two-thirds of subscribed, necessary to re- moval of officers, § 310. majority of subscribed, constitutes quorum, §312. bool^ and notice of, by banks, § 321. certificates of, liow issued, § 323. transfer of shares of, § 324. transfer of shares of married women, 325. transfer of shares of non-residents, § 326. act imposing tax on issue of certificate, § 326. hypothecated shares, how voted, S 322. when acquires jurisdiction over certain, § 340. sale of delinquent, § 341. may buy its own, when, § 343. disposition of, where corporation is purchaser, §344. action for recovery of, sold for delinquent assessments, § 347. capital stock, act prohibiting dividing, with- drawing, or reducing, p. 719, § 18, Stat, capital stock, increasing or reducing of, pp. 719, 720, §§ 19, 20, Stat. act imposing tax on issue of certificates of stock corporations, p. 833, Stat. Stockholders, defined, § 298. entitled to how many votes, § 301. notice to be given to, of meetings, § 310. act to protect, § 321. who has hypothecated stock, § 322. llabilitv of. for debts of corporation, § 322. CORPORATIONS, KINDS OF. Agricultural fair, may acquire and hold how much real estate, § 620. not to contract debts in excess of amount on hand, except, §623. not for profit, § 622. may fix fee, etc., for membership, § 622. Banking, capital stock of, § 300. publishing statements, pp. 716. 717, Stats. Beneficial, how formed, p. 723, Stat. Benev< lent, not insurance companies. §451. See Infra, Religious. Solcial, and Benevolent. may issue bonds, § 598. Boards of trade may be formed, p. 737, Stat. Bridge, ferry, wharf, chute, and pier, to obtain license from board of supervisors, § 528. in what contingencies corporate existence ceas- es, § 529. g94 INDEX. CORPORATIONS— Continued. Bridge, ferry, etc., annual report of, § 530. damages, for failure to report, § 530. this title applies to bridge, etc., owned by nat- ural persons, § 531. Building. See Building and Loan Associations. Canal. See Water and Canal. Cemetery, how much land may be held, and how much disposed of, § 608. who members eligible to vote and hold oflace, § 609. may hold what personal property, § 610. .such surplus, how disposed of, § 610. may issue bonds to pay for grounds, § 611. proceeds, how disposed of, § 611. may talie and hold property or use income thereof, how, § 612. interments in lot and effect thereof, § 613. transfer of right made how, § 613. lotowners previous to purchase to be mem- bers, § 614. burial plots, power to dispose of, § 598. may sell land, § 615. manner of sale of land, § 615. cemetery, manner of execution of deeds by, p. 763, Stat, cemetery corporation, practice on sale of, land by, §615. cemetery corporation, acts relating to, p. 736, Stat. Chambers of commerce may be formed, p. 737, Stat. Colleges, incorporation, and power of trustees of, §§ 649-651. Co-operative business, defined, p. 749, § 1, Stat. formation, of, p. 742, § 1, p. 749, § 1, Stat. Children, act for incorporation of societies for prevention of cruelty to children. See Penal Code, Appendix, title Infancy. Docli. See Bridge, etc. Educational, married women may become cor- porators, § 285. corporation and powers of trustees of, §§ 649- 651. Ferry. See Bridge, Ferry, etc. Foreign, to designate person upon whom pro- cess may be served, § 403. Gas, to obtain privilege from city or town, § 628. to supply gas on written application, § 629. damages for refusal, § 629. INDEX. 895 CORPORATIONS— Continued. Gas, when may refuse to supply, § 630. agent of may inspect meters, § 631. when persons neglect to pay, gas may be shut off, § 632. Homestead, time of corporate existence, § 557, p. 773, Stat, by-laws to specify what, § 558. bV-laws to be furnished members on demand, § 558. advertisement and sale of delinquent shares, § 559. may borrow and loan funds, and for what time, § 560. minors and married women may hold stock, § 561. limitation of speculation in lands, § 562. forfeiture for speculation beyond certain ex- tent, § 562. when corporate existence terminates, § 563. payment of premiums, § 564. annual report, § 565. publication, where made, § 566. extension of time for, and how existence con- tinued, p. 773. Stat. Insurance in general, corporation may be form- ed, § 286. subscription to capital stock, § 414. purchase and conveyance of real estate, § 415. policies, how issued and by whom signed, §416. dividends, of what and when declared, § 417. directors liable for loss in certain cases, § 418. capital stock, §419. mutual protective associations not, § 451. same. § 420. Insurance, fire and marine, pavment of stibscrip- tion, § 424. certificate of paid-up capital stock to be filed, § 425. funds may be invested, how. § 427. fire and marine, propertv which mav be insured, § 426. rate of risk, § 428. amounts to be reserved before making divi- dends. §§429, 430. power to equip and employ men as fire patrol. § 430. privileges of fire-patrol corps, § 430. 896 INDEX. CORPORATIONS— Continued. Insurance — costs and expenses of maintaining organization how assessed, § 430. dividends, §§429, 4ol. county fire insurance companies, organization and management of, p. 787, Stat. mutual life, health, and accident, capital stock may be invested, how, § 427. dividends of, companies, § 429. capital stoclj, §§419, 437. guarantee fund, § 437. of what guarantee fund to consist, § 438. what constitutes, § 439. deficiency in capital stock, § 439. declaration of fixed capital to be filed, § 440. guarantee notes and interest, how disposed of, §441. insured to be entitled to vote, § 442. may invest in what securities, § 443. number of directors may be altered, how, §444. limitation to holding of stock, § 445. premiums, how payable, § 446. to furnish insurance commissioner certain facts, §447. no stamp required on contract of accident in- surance, § 448. valuation of policies, § 449. policy to contain what evidence, § 450. payment and cancellation, § 451. act for incorporation of mutual insurance com- panies, p. 785, Stat. insurance, annuity or endowment, on assess- ment plan, p. 777, Stat. insurance, life insurance on assessment plan, act relating to, p. 777, Stat. insurance, health insurance on assessment plan, act relating to, p. 777, Stat. insurance, accident insurance on assessment plan, act relating to, p. 777, Stat. insurance, title — assets, title insurance compa- nies, plant considered as part of, § 427. Irrigation, stock in as an appurtenance, § 324. shares of stock located on land, transfer of, § 324. transfer of stock in, § 324. Mechanics' institute may be formed, p. 737, Stat Mining, penalty for issuinf false prospectus, p. 762, Stat. 1 INDEX. 897 CORPORATIONS— Continued. Mining— consolidation of, § 361 removal of principal office provided for, § 584. directors to file certificate of ^'hat, where, § 585. transfer agencies, § 586. stoclv issued at transfer agencies, § 587. power of directors to sell, lease, mortgage, or dispose of property, p. 811, Stat, act providing for removal of officers, p. 804 §1, Stat, act for better protection of stockholders in, p 807, Stat, duty to lieep and post accounts, vouchers, etc., and penalty for failure, p. 8U7, § 1 et seq., Stat, duty to keep books of accounts, p. 807, § 1 Stat, right of stockholders to examine grounds, p 809. § 2, Stat. Mutual, beneficial, and relief, how formed, p 723, Stat, not insurance companies, § 451. Pier. See Bridge, Ferry, etc. Railroad, articles of incorporation must state what, § 291. prerequisites to filing articles. §§ 294, 295. directors to be elected, when, § 454. additional provision in assessment and trans- fer of stock, § 455. may borrow money and issue bonds, § 4.56. to provide sinking fund to pay bonds, § 457. capital stock to be fixed, § 458. certificate of pavment of fixed capital stock, §459. enumeration of powers, § 465. map and profile to be filed. § 466. may change line of, § 467. forfeiture of franchise, § 468. crossings and intersections, §§ 465 n., 469. condemnation, § 469. not to use public streets, etc.. except, § 470. not to charge fare to and from points in a city, §471. when crossing hisrhwavs, etc.. how acquires right of way, § 472. may consolidate. § 473. proceedings to consolidate, § 473. state lands granted for use of, § 474. 898 INDEX. CORPORATIONS— Continued. Railroad— such grant not to embrace town lots, §475. certain fixtures may be taken from realty, §476. lands to revert to state, when, § 477. requisites on selection of right of way, § 478. checli to be affixed to all baggage, § 479. damage for refusing so to do, § 479. annual report to be verified, § 480. form of report, § 480. duties of, § 481. to pay damages for refusing transportation, §482. to furnish accommodations for passengers, § 483. to post regulations, § 484. not responsible for injuries incurred by violat- ing rules, § 484. to pay damages, § 485. not liable in certain cases, § 485. may recover damages, when, § 485. regulations of trains, § 486. penalty for violating such, § 486. conductor may eject passengers, when, § 487. officers to wear badge, § 488. rates of charges, § 489. passenger tickets, how issued, and good for six months, § 490. character of iron to be used, § 491. freights and fares bill, p. 822, Stat, commissioners and their duties, p. 822, Stat, extortion and discrimination, p. 822, Stat, stop-over tickets, § 491. may complete road, p. 819, Stat. equal terms for all railway companies, p. 820. Stat, act compelling the operating of roads, p. 821, Stat, constructed over certain elevation exempted from running roads at certain periods, p. 821, Stat. street, may be formed, § 286. articles of inco^-poration to state what, § 291. prerequisites to filing articles, § 294. authority to lay track, § 497. restrictions as to granting right of way, § 498. two may use same street, when, § 499. rate of fare, p. 829, Stat. INDEX. 899 CORPORATIONS— Continued. Railroad— rate of speed, § 501. construction and requisites of conveyances, §501. must commence construction of road when, § 502. effect of failing to do so, § 502. cities and towns may mal^e rules to govern, §503. penalty for overcharging, § 504. street, to provide and furnish passenger tick- ets, § 505. penalty, § 505. trial, proof, and limitation,§ 506. city or town to preserve certain rights, § 507. license to be paid, § 508. tracli for grading purposes, § 509. general provisions applicable, §§ 510, 511. Relief, how formed, § 601. not insurance companies, § 451. Religious, social, and benevolent, man-led women may become corporators, § 285. not insurance companies, § 451. how formed, § 593. articles of incorporation to state what, § 594. may hold what amount of property, § 595. orphan asylums may hold how much property, § 595. Masons, Odd Fellows, Pioneers, etc., may hold how much, § 596. annual report, § 597. mav, by order of court, sell or mortgage prop- erty, § 598. proceedings thereon, § 598. may provide what in by-laws, § 599. members admitted after incorporation, § 600. membership not transferable, § 601. religious, requiring administration of temporal- ities, § 602. act relating to mutual, beneficial, and relief, § 602. religious societies may incorporate, § 603. incorporation of religious societies, § 604. articles of incorporation, § 604. by-laws of, § 604. election of directors, § 604. powers of, §§ 602. 604. religious corporations may issue bonds, § 598. burial plots, power to disp /se of, § 598. administration of funds, § 604. 900 INDEX. CORPORATIONS— Continued. Religious, social, and benevolent— religious cor- porations, powers of, § 602. bonds, religious societies may issue, § 598. incorporation of, powers of corporation, § 604. cumulative voting in, § 307. Road, articles of iu corporation must state what, § 291. prerequisites to filing articles, § 294. Savings and loan, booli and notice of directors and stockholders, § 321. may loan money, on what terms, § 571. capital stocli and rights and privileges thereof, §572. dividends to be from surplus, § 573. to contract no liability except for deposits, § 573. property which may be owned by, and disposal of such, § 574. restrictions on purchasers, § 574. married women and minors may own stocli in, §575. special certificates, § 576. may issue transferable certificates of deposit, §576. to provide reserve fund for payment of losses, §577. prohibition on officer of, and what vacates of- fice, § 578. construction of phrase "create debts," § 579. Social. See Religious, Social, and Benevolent. Stocli-raising, may be formed, § 286. Street railroads. See Railroads, Street. Surety, incorporations for giving bonds, p. 725, §1, Stat. corporation formed to act as, p. 725, Stat. corporation acting as, duty of insurance com- missioner, p. 726, § 3, Stat. corporation acting as, assets of, p. 726, § 3, Stat. Telegraph, articles of incorporation must state what, § 291. prerequisites to filing articles, § 294. right of way along water, roads, and highways, §536. liability for injuring telegraph property, § 537. liability for malicious injury to property, § 538. conditions on which damages to subaqueous cable may be recovered, § 539. duty to send dispatch, § 540. INDEX. 901 CORPORATIONS— Continued. Telegraph— may dispose of certain rights, § 541. rates of charges to be fixed and published, §542. Wauon-road, articles of incorporation must state what, § 291. prerequisites to filing articles, § 294. three commissioners to act with surveyors, § 512. survey and map to be filed and approved, § 513. tolls, etc., to be collected, § 514. penalty for taking unlawful tolls, § 514. no toll to be charged on public highways, § 515. rates of toll to be posted over gate, § 516. toll gatherer may detain person until toll paid, S 517. toll gatherer not to detain person unnecessar- ily, § 518. penalty for avoiding tolls, § 519. penalty for trespass on property of, § 520. when capital repaid, tolls to be reduced, § 521. may mortgage and hypothecate property, § 522. this title to apply to roads owned by natural persons, § 523. Water and canal, may obtain contract to supply city or town, § 548. supervisors fixing rates for water supplied for irrigation, p. 850, Stat, duties, § 549. rates to be fixed by commissioners, § 549. right of way, § 550. to build and keep bridges in repair, § 551. right to water to irrigate lands sold by water or irrigating company, § 552. act regulating sale and control of water, p. 843, Stat. Water companies. See Water Companies. Wharf. See Bridge, Ferry, etc. COSTS of action for divorce, § 137. of appraisement of homestead, § 1259. of transportation of personal property to place of delivery, § 1755. depositor must indemnify depositary for cer- tain, § 1833. borrower to bear certain, § 1892. Civ. Code— 76. 902 INDEX. COSTS— Continued. hirer to bear certain, § 1956. voluntary depositary may deduct for certain, § 2078. trustee entitled to repayment for certain, § 2273. partner to be indemnified for certain, § 2412. insurer liable for certain, §§ 2708, 2743. indemnity against, § 2778. apprenticeship, payment of costs on dissolu- tion of, p. 713, § 17, Stat, liability of parties to indenture, p. 710, § 6, Stat. ' CO-SUKETIES. See Surety. CO-TENA>s'TS. See Tenants in Common. COTERMINOUS OAVaEKS, rights of, to lateral and subjacent support, § 832. rights of, to line trees, § 834. mutual obligations, of, § 841. CO-TKUSTEE. See Trusts and Trustees. COUNTY CLERK. See Clerk. COUNTY, marriage settlement to be recorded in what, § 179. mortgage of personal property to be recorded in what, § 2959. mortgage property in transit deemed located in wliat, § 29(30. property of common carrier deemed to be in what, § 2961. COUNTY RECORDER. See Recorders. COURTESY, estate by, abolished, § 173. COURTS, SUPERIOR, action to atfirm unsolem- nized marriage, § 78. to whom to aAvard custody of child of annul- led marriage, § 85. where divorce denied, may grant relief for wife, §§ 136, 137. may award custody of child, § 138. may allow wife alimony, when, § 139. may require security for alimony, § 140. shall resort to what property in providing 'for wife, § 141. when may withhold allowance, § 142. to determine legitimacy of child, when, § 145. to malve order for division of property on di- vorce, § 146. may award exclusive control of child to either parent, on proper showing, § 199. INDEX. 903 COURTS, SUPERIOR— Continued. may direct allowance for support of child, § 201. appointment of guardian by, §§ 243, 244. jurisdiction of, appointinii- guardian, § 245. rules in appointing guardian, § 24(3. guardian under direction of, § 2r»l. consenting to apprenticeship of child, § 265. judge of, may hear and determine complaints of corporation elections, § 315. action in, to recover possession of property, § 793. to settle controversy between shipowners, § 964. attornment of tenant to stranger by judgment of, valid, § 1948. when trustor, § 2252. mav allow satisfaction of trustee's adverse claim, § 2263. discretionarv power of trustee controlled bv, § 2269. trustee may be discharged by, §§ 2282, 2283. when may appoint trustee. § 2287. when becomes trustee, § 2289. mav reduce rate of interest on bottomrv, when, §§ 3022-3039. COYEXANTS. none implied in any arant, except, § 1113. when run with land, § 1460. what run with land, §§ 1461-1463. what run with land, when assigns named, § 1464. who bound by, § 1465. who not bound by, § 1466. apportionment of, § 1467. what required by executory contract of sale, § 1733. for quiet possession implied in hiring of prop- erty, §§ 1927, 1955'. authority to agent to sell and convey includes, § 2324. damages for breach of certain, § 3304. CREDIT, sales by factor. § 2028. to agent exonerates principal, when, § 2335. asrent accepting personal, liable as principal, § 2343. auctioneer not to give, except when usual, § 2362. 904 INDEX. GREDIT—Continued. factor may give, except when unusual, § 2368. of ship-owner, master may borrow on, § 2374. ship's manager cannot borrow on, § 2389. CREDITOR. See Assignment for the Benefit of Creditors; Debtor, trusts for benefit of, § 857. trust fund, how far liable to, § 859. trust, when absolute, in favor of subsequent, § 869. gift causa mortis treated as legacy, when, § 1153. transfer for benefit of, to be recorded, § 1164. appraisement of homestead on petition of judgment, § 1245. when to pay expenses of appraisement of homestead, § 1259. competent witness to will, § 1281. acceptance by, necessary to satisfaction, § 1473. performance of obligation of one of several joint, § 1475. performance in manner directed by, § 1476. application of performance by, § 1479. offer of performance to, § 1488. offer of performance at place appointed by, § 1489. offer of performance so as to benefit, § 1493. receipt by, § 1499. objections to offer of performance, § 1501. title of thing offered passes to, when, § 1502. obligation of, as to thing offered, § 1505. performance excused if prevented by, § 1511. effect of prevention of performance by, § 1512. effect of refusal to accept performance, § 1515. acceptance of accord, § 1523. acceptance of part performance, § 1524. novation, how, § 1531.' may rescind novation, when, § 1534. release by, § 1541. release by, effect of, § 1542. partner cannot malvc assignment for benefit of, § 2430. liability of partner after dissolution to, § 2453. special partner may be, § 2491. special partner postponed to other, § 2491. preference to, in insolvency, void, § 2496. INDEX. 905 CKEDITOR— Continued. special, when liable as general partner to, § 2502. guarantor, liable to, when, § 2807. guarantor, when exonerated, § 2819. guarantor not exonerated by voidable prom- ise of, § 2820. guarantor, when partially exonerated, § 2822. guarantor not exonerated by mere delay of, § 2823. guarantor with indemnity, when not exoner- ated, § 2824. guarantor not exonerated by discharge of debtor without act of, § 282.5. surety, how far liable, § 2838. surety exonerated by what act or omission of, § 2840. surety exonerated by refusal to sue, when, § 2845. surety may enforce remedies of, when, § 2845. surety entitled to securities held by, when, § 2849. entitled to benefit of surety's securities, § 2854. must resort to different funds, in what order, § 2899. lien void against, when, § 2913. mortgage of personal property, when void against, § 2957. of mortgagor, remedy of, § 2968. of mortgagee, remedy of, § 2968. contracts of debtor valid against, when, § 3431. debtor may prefer, when, § 3432. certain transfers of debtor void against, §§ 34.39. 3440. can avoid act of debtor, when, § 3441. transfer without value, not necessarily void against, § 3442. assignment for benefit of, § 3449. failing to record assignment, § 3465. assignment void against, when, § 34.57. may require assignee to account, § 3469. CRIMINAL LAW, misdemeanor, foreign corpora- tion doing business before malting a deposit, § 645. CRUELTY, extreme, ground for divorce, § 92. defined, § 94. in case husband or Avife leave on account of, who commits desertion. § 98. 906 INDEX. CRUELTY— Continued. disposition ot common property in divorces granted for, § 147. ground for annulling indenture of apprentice- sliip, § 276. CUSTODY OF CHILD. See Parent and Child. CUIiATIYE ACTS, act legalizing defective ac- knowledgments, p. 703, et seq., Stat. action to recover property conveyed by mar- ried woman, when barred, § 164. act validating record of notices of location of mining claims, § 1159. instruments atfecting realty recorded before 1897 made notice, § 1207. DAMAGES. See Exemplary Damages; Penal Damages. minors and persons of unsound mind not liable, § 41. railroad corporations liable for certain, § 485. when owner of ship cannot sue for, for collis- ion, § 971. willful trespasser liable for, § 1033. contract fixing, void, § 1670. may be liquidated, when, § 1671. depositors must indemnify depositarv for cer- tain, § 1833. liability" of depositary, § 1836. liability of tinder of lost property, § 1865. liability of lender for certain, § 1893. indemnity against, § 2778. for refusal to satisfy mortgage, § 2941. on dishonor of foreign bilC §§ 3234, 3237. defined, § 3281. may cover future loss, when, § 3283. interest by way of, §§ 3287-3290. exemplary, § 3294. must be clearly ascertainable, § 3301. for payment of money, § 3302. for breach of covenant, § 3304. for breach of agreement to convey real prop- erty, § 3306. for breach of agreement to purchase real prop- erty, § 3307. for breach of agreement to sell personal prop- erty, §§ 3308, 3309. for brench of agreement to pay for personal property, § 3310. for breach of agreement to buy personal prop- erty, § 3311. INDEX. 907 DAMAGES— Continued. for breach of warranty of title to personal property, § 3312. for breach of warranty of quality of personal property, § 3313. for breach of carrier to accept freight, § 3315. for breach of carrier to deliver freight, § 3316. for breach of carrier to deliver messages, § 2209. for breach of warranty of agent's authority, § 3318. for breach of promise of marriage, § 3319. for wrongs in general, § 3333. for wrongful occupation of real property, § 3334. for holding over real property, § 3335. for conversion of personal property, § 3336. for conversion in favor of lienor, § 3338. for seduction, § 3339. for injuries to animals, § 3340. for injury to sheep by dogs, § 3341. for tenant's failure to quit after notice, § 3344. for tenant holding over, § 3345. for injuries to trees, S 3346. for injuries inflicted in duel, §§ 3347, 3348. value of property, in favor of seller, § 3358. value of property in favor of buyer, § 3354. value of property, peculiar, when allowed, § 3355. value of thing in action, § 3356. to be reasonable, § 3358. nominal, § 3360. for delay, must be paid on redemption from lien, § 2905. dithculty of ascertaining, ground for specific relief, § 3380. inadequacy of, ground for specific relief, §§ 3380, 3384. DATE, of delivery of grant, presumption of, § 1055. not necessary, in negotiable instrument, § 3091. DAUGHTER, right of protection against seduc- tion of, § 49. DAYS, what, holidays, §§ 7, 8. what, business, § 9. what, counted in computing time, § 10, fractions of, when disregarded, § 14. of grace, not allowed, § 181. 908 INDEX. DEATH of minor, personal representatives may disaffirm contract, § 35. dissolves marriaft-e, § 90. of parent, leaving child unprovided, effect of, § 205. of joint guardian, § 252. without heirs, etc., defined, § 1071. gift in view of, defined, § 1049. gift, when presumed in view of, § 1150. gift in view of, revocation. § 1151. gift in view of, effect of will upon, §§ 1152. gift in view of, when treated as legacy, § 1158. of husband and wife, effect on homestead, § 1265. of devisee or legatee before testator, effect of. §§ 1310, 1343. of devisee before testator, § 1344. of heir advanced to, before devisor, § 1399. distribution of common property on, of wife, § 1401. distribution of common property on, of hus- band, § 1402. of seamen, who entitled to wages, § 2062. of maimer of instrument bearing nominal date, § 3094. notice of dishonor in ignorance of, of indorser, § 3146. DEBTOR. See Assignment for the Benefit of Creritors; Creditors; Debts; Insolvency, performance must be made by or for, § 1473. performance by joint, § 1474. effect of directions to, as to performance, by creditors, § 1476. application of general performance by, § 1479. offer of performance by or for, § 1487. may require receipt, § 1499. rights of, upon prevention of performance, §§ 1512-1514. novation by substituting new for old, how made, § 1531. release of, by creditor, § 1541. release of, by creditor, effect, § 1542. joint, release of several, § 1543. fraudulent misrepresentation of, as to pledge, § 2999. may pav or secure one creditor in preference 1o another, § 3432. INDEX. 909 CREDITOR— Continued. certain transfers void against creditors, § 3431. when creditor can avoid act of, § 3441. insolvent, may assign for benefit of creditors, when, § 3449. insolvent, defined, § 3450. DEBTS, earnings of wife not liable for, of hus- band, § 168. husband not liable for antenuptial, of wife, § 170. separate property of wife not liable for, of husband, § 171. separate property of wife liable for her own, § 171. corporations not to create, beyond actual sub- scribed stock, § 309. when officer of corporation liable for, § 316. liability of stockholder for, of corporation, § 322. included in word "incumbrances," § 1114. homestead liable for certain, § 1241. property of intestate, how disposed of in pay- ment of, § 1358. property of testator, how disposed of in pay- ment of, § 1359. legacies, how charged with, §§ 1360, 1.361. liability of beneficiaries for testator's, § 1377. how extinguished by offer of payment, § 1500. accord of liquidated, § 1524. agreement to answer for, of another, § 1624. partner may require partnership property to be applied to payment of, §§ 2405. partner acting in liquidation may collect, com- promise, etc., § 2461. liability of contribution of special partner for, § 2501. special partner not personally liable, when. § 2501. pledgee cannot sell certain pledged evidences of, § 3006. DECEIT renders contract voidable, § 1567. an essential element of fraud, § 1572. when actionable, §§ 1709, 1710. upon the public, § 1711. DECK, freight not to be stowed on, § 2117. things stowed on, when entitled to general av- eraire, § 2154. DECLARATIONS of marriage, how made, § 76. of marriage, to be acknowledged and record- ed, § 77. 910 INDEX. DECLARATIONS— Continued. of marriage, action to compel, § 78. of trust, effect of omitting- in grant, § 869. of trust, act in contravention to, void, § 870. of abandonment of homestead, § 1243. of abandonment of homestead, from what time effectual, § 1244. of homestead, how acknowledged, §§ 1262, 1266. of homestead, what to contain, §§1263, 1267. of homestead, to be recorded, §§ 1264, 1268. of homestead, effect of filing for record, §§ 1265, 1269. such to be recorded, § 1268. of trust, defined, § 2253. of trust, trustee must obey, § 2258. DEEDS as conveyances. See Conveyances. DEFAMATION, right of protection from, § 43. how effected, §44. DEFAUT/r, divorce not to be granted by, § 130. collision from breach of rules implies willful, § 972. agreement to answer for, of another, must be in writing, § 1624. DEFECTS in certificate of acknowledgment, ac- tion to remedy, § 1202. in description in will, effect, § 1340. implied warranty of manufacturer against la- tent, § 1769. depositor must indemnify depositary for dam- ages arising out of, § 1833. lender must indemnify borrower for damages arising out of, § 1893. in notice of loss under insurance, how waived, § 2635. DEFINITIONS, abandonment, § 27x6. acceptance of offer, § 1584. acceptance of bill, § 3193. accord, § 1521. adult, § 27. adultery, § 93. advancement, § ,397. agency, 2295. actual, § 2299. ostensible, § 2300. agent, § 2295. special, § 2297. agent, general, § 2297. agreement for sale, § 1726. to sell, § 1727. INDEX. 911 D EFINITIONS— Continued, agreement to buy, § 1728. to sell and buy, § 1729. allonge, § 3310. - annuity, § 1357. appurtenances, § 662. articles of incorporation, § 289. auction, § 1792. autliority, actual, § 2316. ostensible, § 2317. average, general, § 2148. bail, § 2780. beneficiary, § 2218. z bill of exchange, § 3171. inland, § 3224. foreign, § 3224. bill of lading, § 2126. bottomry, § 3017. building and loan associations, § 648, p. 785, § 20, Stat, business days, § 9. carrier, marine, § 2085. inland, § 2087. common, § 2168. charter-party, § 1959. chattel, real, § 765. interest, § 765. .... check, § 3254. collusion, § 114. common carrier, § 2168. community property, §§ 164, 687. companies, p. 828, § 14, Stat, concealment, § 2561. condition precedent, § 1346. '^-''- subsequent, § 1349. i s -^ r concurrent, § 1437. conditional devise or legacy, § 1345. obligation, § 1434. condonation, § 115. connivance, § 112. consideration, good, § 1605. consignee, § 2110. consignor, § 2110. contract, § 1549. executed, § 1661. executory, § 1661. express, § 1620. implied, § 1621. conveyance, § 1215. corporation, § 283. 912 INDEX. DEFINITIONS— Continued, corporation, public, § 284. private, § 284. articles of incorporation, § 289. creditor, § 3430. cruelty, extreme, § 94. damas:es, § 3281. debtor, §§ 14, 3429. deceit, § 1710. declaration of trust, § 2258. delivery, constructive, § 1059. deposit, § 1813. voluntary, § 1814. involuntary, § 1815. for keeping, § 1817. for exchange, § 1818. gratuitous, § 1844. for hire, § 1851. depositary, § 1814. depositor, § 1814. desertion, §§ 95, 96. detriment, § 32s2. deviation, § 2694. discrimination, unjust ^y railroad, § 491. dishonor, § 3141. divorce, § 491. dominant tenement, § 803. drawee, § 3171. drawer, § 3171. duress, § 1569. easements, § 801. employee, § 1965. employer, § 1965. employment, § 1965. escrow, § 1057. estates in real property, § 761. in fee, § 762. of freehold, § 765. exchange, § 1804. extortion by railroad, § 491. factor, §§ 2026, 2367. fixtures, § 660. fraud, actual, § 1572. constructive, § 1573. freeholds, § 765. freight, § 2110. freightage, § 2110. gift, § 1146. in view of death, § 1149. good-will, § 992. INDEX. 915 DEFINITIONS— Continued, grant, § 1053. guaranty, § 2787. continuing, § 2814. guardian. § 236. general, § 239. special, § 240. head of the family, § 1261. habitual Intemperance, § 106. hiring. § 1925. holidays, § 7. homestead, § 1237. hydraulic mining, § 1425. impossibility, § 1597. income, § 748. incumbrances. § 1114. indemnity, § 2772. indorsee in due course, § 3123. indorsement, § 3108. general, § 3112. indorsement, special, § 3113. indorser, § 3108. insolvency, § 3450. insurable interest, § 2546. insurance, § 2527. double, § 2641. marine, § 2655. insured, § 2538. insurer, § 2538. intemperance, habitual, § 106. interest of money, § 1915. compound, § 14. interests, joint, § 683. partnership, § 684. in common. § 685, present, § 689. future, § 690. perpetual, § 691. limited, § 692. vested, § 694. issue, $ 1071. contingent, § 695. iettison, § 2148. land, § 659. lapse of time. § 125. legacy, specific, § 1357. demonstrative, § 1357. residuary, § 1357. general, § 1357. Civ. Code, 77. 914 INDEX. DEFINITIONS— Continued, letter of credit. § 2858. special, § 28(U. general, § 28G1. libel, §45. lien, § 2872. general, § 2874. special, § 2875. loan for use, S 1884. for exchange, § 1902. of money, § 1912. loss, total, §2703. loss, partial, § 2702. actual total, § 2704. constructive total, § 2705. luggage, §2181. manager of ship, § 2170. managing owner, § 2170. marriage, § 55. master, §2009. mate, §2048. maturity, apparent, § 3132. menace, § 1570. minor, § 25. mistalvc, § 1576. of fact, § 1577. of law, § 1578. of foreign law, § 1579. month, § 14. mortgage, § 2920. mutual consent, § 1580. navigation, foreign, § 962. domestic, § 962. neglect, willful, § 105. negotiable instrument, § 3087. notice, actual, § 18. constructive, § 18. novation, § 1530. nuisance, § 3479. public, § 3480. private, § 3481. oath, § 14. object of contract, § 1595. obligation, S 1427. conditional, § 1434. ownership, § 654. absolute, § 679. qualified, § 680. several, § 682. INDEX. 915 DEFIXITIONS— Continupd. ownership, joint, § 683. partnership, § 684. in common, § 68.5. partnership. § 2395. jreneral, § 2424. ; special, § 2478. partnership property, § 2401. payment, § 1478. perils of the sea, § 2199. person, § 14. personal property, §§ 14, 663. pled^-e, § 2986. pledge-holder, § 2993. policy of insurance, § 2586. open, § 2595. valued, § 2596. runninsr, § 2597. possibility, § 1597. preventive relief, § 3368. principal. § 2295. price. § 1721. privileged communication, § 47. privileged publication. § 47. promissory note. § 3244. property. §§ 14, 654. real. § 14. personal. §§ 14, 663. recrimination, § 122. reinsurance. § 2646. remainder, § 769. respondentia, § 3036. reversion, S 768. sale, § 1721. sale by auction, § 1792. satisfaction, § 1523. seal, § 14. seamen, § 2049. seaworthiness, § 2682, servant. § 2009. servient tenement, § 803. servitudes, § 802. several. § 14. ship, § 960. appurtenances of, § 961. domestic, §963. foreign, § 963. ship's manager, S 2170. signature, § 14. :S!16 INDEX. DEFINITIONS— Continued. slander, §46. specific relief, §3367. storage, § 1851. succession, § 1333. surety, § 2831. thing in action, § 953, trademarli, § 991. transfer, § 1039. transportation companies, p. 828, § 14, Stat. trust, § 2215. voluntary, § 2215. involuntary, § 2217. trustee, § 2218. trustor, §2218. undue influence, § 1575. unlawful, § 1667. vessel, § 17. ward, § 236. warranty, § 1763. will, olographic, § 1277. writing, § 14. DEGREES of kindred, how established, § 13S0. DELAY, reasonable grounds for, rebuts presump- tion from lapse of time, § 126. in performance compensated for, when, § 1492. how excused, § 1511. carrier of persons to travel without unreason- able, § 2104. notice of loss under insurance to be given without, § 2633. in giving notice of loss, how waived, § 2636. deemed deviation, when, 2694. of creditor does not discharge guarantor, § 2825. in presentment of notice of dishonor, how ex- cused, §3158. in presentment of bill of exchange, effect, § 3189. in presentment of bill of exchange, how ex- cused, § 3219. in presentment of promissory note, effect, § 3248. in presentment of check, effect, § 3255. in protest, how excused, § 3230. DELINQUENT assessment, sale of stock for, § 341. assessment, action to recover stock sold for, §347. INDEX. 917 DELIVERY deemed time of creation of interest, §749. of grant necessary to vest title, § 1054. presumption of time of, § 1055. to grantee, necessarily absolute, § 10.56. in escrow. § 1057. constructive, § 1059. of gift necessary to validity. § 1147. of contract in writing, provisions applicable to, § 1626. of goods sold, where, § 1754. of goods sold, expense of, § 1755. of goods sold, notice of election as to mode of, § 1756. of goods sold, buyer's directions, § 1757. of goods sold, when to be made, § 1753. thing bought, to be paid for on, § 1784. of thing deposited, on demand, § 1822. of thing deposited, demand necessary, § 1823. of thing deposited, where, § 1824. of thins: deposited, bv joint owners, § 1827. of freia-ht, to whom. § 2118. of freight, where. §2119. of freight, to holder of bill of lading suffi- cient, § 2131. essential in pledge, § 2988. DEMAND, when restoration of thing wrongfully tal^en to be upon, § 1713. goods sold to be delivered upon, § 1753. thing deposited to be delivered on, § 1822. thing deposited need not be delivered without, § 1823. thins: lent to be returned without, when, § 1895. thing lent need not be returned unless on, when, § 1895. employee, to render account without, § 1986. employee, when not bound to deliver without, § 1987. servant to deliver without, § 2014. agent to deliver to third person on, when, § 2344. upon guarantor, unnecessary, § 2807. of performance on pledgor must be before sale of pledge, S 3001. of performance, hoAV waived, § 3004. of payment of negotiable instrument, when necessary, §3130. 918 INDEX. DEPOSIT. See Depositary; Pledge; Storage; Warehousemen. in savings baulv may be collected by surviving husband or wife, when, § 579. of money in payment of debt, § 1500. kinds of, § 1813. voluntary, § 1814. involuntary, § 1815. defined, § 1817. gratuitous, § 1844. gratuitous, involuntary is, § 1845. gratuitous, obligations of depositary on, § 1846. gratuitous, duties of depositary on, when cease, § 1847. for reward, called storage, § 1851. for reward, degree of care required, § 1852. for rewaLKl, rate of compensation, § 1853. for reward, how terminated, §§ 1854, 1855. with innkeeper, §§ 1859, 1800. • of thing found, § 1804. of thing for exchange, § 1878. of thing pledged, by gratuitous pledge-holder, § 2995. sale of property to satisfy lien, §§ 1850, 1857. lien of depositary for hire, § 1850. DEPOSITARY, person offering thing in perform- ance, § 1503. gratuitous, when creditor is, § 1005. seller of personal property, when, § 1748. defined, § 1814. Avho bound to become, § 1815. duties in case of involuntary deposit, § 1816. to deliver on demand, § 1822. not bound to deliver without demand, § 1823. to deliver where, § 1824. to give notice of adverse claim, § 1825. may exonerate himself by giving notice, when, § 1826. to deliver to joint owners, how, § 1827. depositor must indemnify, when, § 1833. of animals must provide for them, § 1834. not to use deposit, § 1835. liability for wrongful use, § 1836. may sell deposit, when, § 1837. to give information of cause of loss, § 1838. duties and liabilities in respect to service, § 1839. liability for negligence, how limited, § 1840. gratuitous, must use what care, § 1846. INDEX. 919 DEPOSITARY— Continued. .aratuitoiis. duties of. Avlien cease, § 1847. for liire. defined, § 1851. for liire, must use ordinary care, § 1852. for hire, rights of, § 1853. for hire, duties, how terminated, §§ 1854, 1855. innlveeper as. liability, § 1859. for hire, finder of lost property, § 1864. for exchange. § 1878. voluntary, obligations of, § 2078. has insuraltle interest, § 2548. when pledgee for reward, § 2998. act compelling all depositaries of money to publish statement of unclaimed deposits, p. 716. Stat. depositary for hire, lien of, § 1856. DEPUTY may take acknowledgment, § 1184. DESCENTS. See Succession. DESCPII-TION, error of. in will, how remedied, § 1340. agreement to compensate for errors of, when does not prejudice right of rescission, § 1690. DESEPtTIOX, as ground of divorce. See Divorce, of seamen. See Seamen. of ship. See Shipping. DESTKUCTiOX of will is revocation. § 1292. of will, how proved, § 1293. of written contract, effect, §§ 1699, 1700. DETENTION of person or property avoids con- tract, when, § 1569. of property, damages for, § 3335. DETRIMENT. See Damages. DEVIATION, carrier must not make, § 2104. effect of, on insurance. See Insurance. DEVISE. See Will. DILIGENCE, great, by emplovee for his own ben- efit, § 1979. ship-master. § 2043. carrier of messages for reward, § 2162. utmost, by carrier of persons for reward, § 2100. Ordinary, by agent, § 2020. l>y volimtary agent, § 2. made how. § 1147. •^'hat not revocable. § 1148. in view of death, what. § 1149. in view of death, when presumed. § 1150. in view of death, revocation of, § 1151. in view of death, effect of will upon. § 1152. in view of death, when treated as legacy, § 1153. to subscribinsT witness to will, void when, § 1282. subscribing witness may take as much by, as by succession, § 1283. counties, cities, and towns, mav talve by, § 1313. certain words in will, when words of. § 1.335. ademption of legacy, when, § 1.357. in view of death, may be satisfied, § 1.361. husband cannot make gift of communitv prop- erty, § 172. GOOD FAITH. See Bona Fide Purchasers, offer of performance to be in, § 1493. trustee bound to highest, § 2228. partner bound to highest, § 2411, partner when not bound by act in. § 2431. principal bound to persons acting in, § 2334. agent not bound by act in, § 2343. agent indemnified for advance made in, when, § 2.344. incumbrance presumed acquired in, § 2944. property, §§ 655, 993. defined, § 992. seller may agree not to carry on same business in county, § 1674. implied warranty in sale of, goodwill, § 1776. GOOD WILL is property, §§ 655, 993. defined, § 992. seller of, may agree not to carry on same busi- ness in county, § 1674. 9S4 INDEX. I GOODWILL— Continued implied warranty in sale of. 1776. partner cannot dispose of. § 2430. GRACE, days of, not allowed, § 3181. GRANT. See Conveyances. GREATER contains the less. § 536. GROWING CROPS, subject to mortgage, §§ 2955, 2972. See Crops. GUARANTY. See Surety. liability of factor on sale under, commission, § 2029. detined, § 2787. knowledge of principal not necessary, § 2788. consideration, when necessary, § 2792. consideration need not be expressed, § 2792. must be in writing, § 2793. promise to answer for another, when not deem- ed, §2794. acceptance necessary to validity, when, § 2795. interpretation of guaranty of, incomplete con- tract, § 2799. that obligation is good or collectible, § 2800. that obligation is good, not discharged by harmless omission to sue, § 2801. that obligation is good, when brolien by prin- cipal leaving state, § 2802. deemed unconditional, when, § 2806. enforced without demand or notice, when, § 2807. of conditional obligation, effect, §2808. liability on, not greater than principal's, § 2809. where principal s contract void, § 2810. continuing, detined, § 2«14. continuing, revolted when, § 2815. continuing, letter of credit, when deemed, § 2864. exonerated by certain dealings with principal, § 2819. not exonerated by void promise, etc., § 2820. not restored by rescission of agreement exon- erating, § 2821. reduced by partial satisfaction of principal ob- ligation, § 2822. not exonerated by mere delay, § 2823. not exonerated by release of principal, when, § 2824. INDEX. 935 G UARANTY— Continued. not exonerated by legal discharge of principal, § 2825. surety exonerated in lilie manner with guaran- tor, § 2840. surety has all rights of guarantor, § 2844. iudorser has rights of guarantor, § 3121. GUARDIAN AND WARD, legal proceedings by minor to be conducted through guardian, §42. appointment of, supersedes parent, § 204. guardian, what, § 236. ward defined, § 237. Ivinds of guardian, § 238. general guardian, what, § 239. special guardian, what, § 240. appointment of guardian by parent, § 241. uo person can be guardian of estate without appointment, § 242. appointment of guardian, §§ 243, 244. jurisdiction of guardians, § 245. rules for appointment of general guardian, § 246. powers of guardians appointed by court, § 247. duties of guardian of person, § 248. duties of guardian of estate, § 249. relation of guardian and ward confidential, S 251. death of joint guardian, § 252. removal of guardian. § 253. appointed by parent, how superseded, § 254. appointed by court, how superseded, § 255. release by ward, § 256. discharge of guardian, § 257. of insane person, § 258. may consent to apprenticeship of ward, when, §265. GUEST, innkeeper's liability for personal prop- erty of, §§ 1859, 1860. HABITUAL INTEMPERANCE ground for di- vorce, § 92. to continue how long, § 107. HALF-BLOOD kindred inherit equally with whole blood, § 1394. HANDWRITING, execution of instrument proved by, when, § 1198. HEAD OF A iWMILY, husband is, §156. phrase, defined, § 1261. 936 INDEX. HEIRS of minor, when and liow to disaffirm con- tract, § 35. may dispute legitimacy of issue, § 195. of tenant for life, when take as purchaser, § 779. construction of word, §§ 1071, 1329. inheritance by. See Succession. HIGHWAY, transfer of land, bounded by, § 1112. HIRING. See Loan. depositary for, when person offering thing in performance is, § 1503. depositary for, when seller of personal prop- erty to act as, § 1748. defined, §1925. hirer entitled to product of thing during, § 1926. covenant for quiet possession implied in, § 1927. hirer to use ordinary care, § 1928. hirer to repair certain injuries, § 1929. hirer may use thing let, for what, § 1930. letter may terminate, when, § 1931. hirer may terminate, when, § 1932. when terminates, § 1933. when terminates by incapacity or death of par- ty, § 1934. apportionment of hire, § 1935. obligations of parties, § § 1955-1958. of ships, § 1959. HOLDER of negotiable instrument may make in- dorsement special, how, § 3114. presentment by, § 3131. to surrender on payment, when, § 3137. to give receipt, when, § 3137. to indemnify payor, when, § 3137. to give proof of loss, when, § 3137. notice of dishonor given bj', § 3142. notice of dishonor when to be mailed, § 3148. notice of dishonor by agent, § 3149. what information excuses presentment, § 3156. payment to, when suthcient, § 3164. of bill of exchange to treat it as dishonored, when, §3194. may receive qualified acceptance when, § 3195. not bound to receive acceptance for honor, § 3204. must receive payment for honor, § 3204. must give notice of dishonor, notwithstanding acceptance for honor, § 3206. 1 INDEX. 937 HOLDER— Continued. for value, entitled to certain damages, § 3234. HOLIDAYS, what are, §§7, 8. how computed in reference to performance, §§ 10, 11. H0MP:STEAD, defined, § 1237. from what property taken, § 1238. husband cannot select from separate property of wife, § 1239. exempt from execution, when, § 1240. debts from which not exempted. § 1241. conveyance of mortgages of, how executed, § 1242. how abandoned, § 1243. declarati«/n of abandonment, § 1244. proceedings when exceeds exemption, § 1245. application for appraisers, § 1246. petition tiled with county cleric, § 1247. copy of petition served on claimant, § 1248. appointment of appraisers, § 1249. oath of appraisers, § 1250. duty of appraisers, § 1251. j report of appraisers, § 1252. proceedings on report, §§ 1253-1257. fees of appraisers, § 12o8. alienation of, in case of insanity, p. 771, Stat. when title perfected, § 12G5. tenure by which held, § 1265. of other than head of family, § 1266. proceeding to obtain by other than head of family, §§ 1266-12ti9. who may acquire, and of what value, § 1260. declaration, what to contain, § 1263. "head of the family" defined, § 1261. declaration to be recorded, § 1263. HOMESTEAD COKPUliATlONS. See Corpora- tions. HOTEL-KEEPERS. See Innkeepers. HUSBAND AND WIFE. See Married Women. abduction of husband and wife, § 49. husband to select residence, § 103. wife to conform to selection of home, or she commits desertion, § 103. if unut, and wife refuses to conform, he com- mits desertion, § 104. willful neglect to provide for wife, ground for divorce, § 105. husband may be compelled to give alimony, §§ 136, 137, 139. Civ. Co(le~7&. 9S8 INDEX. HUSBAND AND WIFE— Contiued. security for alimony, § 140. property to be resorted to for alimony, § 141. when allowance may be withheld from wife, §142. legitimacy of issue when divorce granted for adultery of husband, § 144. legitimacy of issue, where divorce granted for adultery of wife, § 145. mutual obligations of, § 155. husband is head of family, § 156. interest separate in certain respects, § 157. wife may make contracts, § 158. how far may impair their legal obligations, §159. mutual consent to separation, sufficient con- sideration, § 160. may be joint tenants or tenants in common, §161. separate property of wife, § 162. wife may dispose of separate property with- out consent of husband, § 162. separate property of wife, § 163. common property of, §§ 164, 687. inventory of separate property of wife, § 165. effect of recording inventory of separate prop- erty of, § 166. wife may contract for payment of money, § 167. not liable for debts of husband, § 168. earnings of wife living separate, separate property, § 169. husband not liable for debts of wife contract- ed before marriage, § 170. wife not liable for debts of husband, § 171. property of wife liable for her own debts, § 171. power of husband over common property, § 172. husband not allowed estate by courtesy, § 173. wife not allowed estate in dower, § 173. husband liable for support of wife, § 174. husband not liable, if wife abandons, § 175. when wile to support husband, § 176. property rights of wife, how governed, § 177. marriage settlements of, how executed, § 178. living separate, neither has superior right to custody of child, § 198. husbana not bound to support stepchildren, § 2Ul). INDEX. - 939 HUSBAND AND WIFE— Continued. consent of wife necessary for husband to adopt child. § 228. surviving husband or wife may collect depos- its in savings banli, when, § 579. husband cannot select homestead from sepa- rate property of wife, § 1239. wife must join in conveyance of homestead, ij 1242. wife when head of family, § 1261. joint tenancy in homestead, § 1205. consent of husband not necessary to wife's will, §1273. inheritance between, § 1400. distribution of common property on death of wife, § 1401. distribution of common property on death of husband, § 1402. disposition of common property on death of husband, § 1402. contract obtained from wife by duress of hus- band voidable, § 1569. contract obtained from wife by menace void- able, § 1570. community' or separate propertj', presumption as to, § 164. community property, gift of, power to make, §172. community property, conveyance of, action to recover when barred, § 164. presumption as to property conveyed married woman and others, § 164. separate property, presumption that property conveyed wife is, § 164. action to recover property conveyed by mar- ried woman, when barred, § 164. conveyance by married woman, limitation of action by husband or heirs to recover, § 164. IDENTIFICATION of contracting parties, § 1558. IDIOTS. See Persons of Unsound Mind. IDLE ACTS, law does not reqtiire, § 3532. IGNORANCE, mistali:e of fact through, renders contract voidable, §§1567, 15 < 7. ILLEGITIMACY. !See Legitimacy- who may raise question of, § 195. proved, how, § 195. mother entitled to custodv of illegitimate child, § 200. 940 • INDEX. ILLEGITIMACY— Continued. effect of subsequent marriage of parents, § 215. consent of mother necessary to adoption, § 224. effect of adoption, § 230. appointment of guardian for child. § 241. child, when takes by succession, § 1387. mother succeeds to property of intestate. § 1388. IMPOSSIBILITY, condition void on account of, § 1441. of ascertaining object of contract, § 1596. defined. § 1597. of performance, when avoids contract, § 1598. of ascertaining consideration, §§ 1612, 1613. law does not require, § 3531. IMPROBABILITY of contingency does not ren- der future interest void, § 697. INCAP.^CITY, to contract, §§39, 40. to consent ground for nullity of marriage, § 82. physical ground for annulling marriage, § 82. terminates hiring, § 1934. terminates agency, § 2355. INCEST defined, § 59. judicial determination of marriage in case of, §80. INCIDENT passes with principal, §§ 1084, 1656, 3540. INCOME defined, § 748. disposition of, governed how, § 722. accumulation of, allowed when, § 724. accumulation of, directions for, void when, §§ 723, 725. allowance out of, § 726. undisposed of, Avho entitled to, § 733. INCOKPOKATION. See Corporations. INCREASE. See Accession. of property belongs to owner, § 732. of property lent belongs to lender, § 1885. of property hired belongs to hirer, § 1926. freightage not charged for natural, of freight, § 2139. of property pledged, is pledged, § 2989. INCUMBRANCER, resulting trust not to preju- dice, §856. grant, how far conclusive as to, § 1107. incumbrance defined, § 1114. instruments, when void against, § 1227. instruments, when not void against, § 1228. INDEX. 941 INCUMBRANCER— Continued. grant as revocation in favor of, when, § 1229. Incumbrance imposed on devised property, § 1302. rights of. under devisee, when not impaired by his conveyance. § 1.364. vrhen personal mortgage void against subse- quent. § 3048. lien of seller or buyer not valid against subse- quent. § 2957. covenant against all, damages for breach, § 8305. obligation respecting real property not enforced against subsequent, § 3395. certain transfers void against, § .3440. INDEMNITY by depositor, § 1833. when eraplovee entitled to, §§ 1969, 1971. to trustee, § 2273. to partner, § 2412. measure of, under marine insurance. § 2736. measure of, under tire insurance, § 2756. measure of, under life and health insurance § 2766. insurance a contract of, § 2551. defined, § 2772. for future wrongful act, void, § 2773. for past wrongful act, valid, § 2774. extends to acts of agent, § 2775. to several applies to each, § 2776. joint liability with person indemnified, when, § 2777. interpretation, § 2778. when person giving, has right of surety, § 2779. in legal proceedings, § 2780. in leual proceedings, by what rules governed, § 2781. guarantor indemnified liable to extent of, § 2824. INDENT lKES of apprenticeship, §§270-272. deposit of such, § 273. causes for annulling, § 276. of apprentices. See Apprenticeship. INDORfc.EMENT, marriage certificate, § 73. indentures of apprenticeship, §§ 266, 375. necessary- to transfer shares of stoclv, § 324. of surveyor-general, on plat of right of way, §478. non-negotiable contract transferred by, § 1449. of bill of lading, ettect of, § 2271. 842 INDEX. INDORSEMENT— Continued. of check, rig-hts of indorsee, § 3255. Of negotiable instilment defined, § 3108. how made, §3109. on separate paper, when, § 3110. general, defined, § 3112. special, defined, § 3113. general, how made special, § 3114. special, how may destroy negotiability, § 3115. implied warranty of, § 3116. before delivery to payee, § 3117. without recourse, S§ 3118, 3119. gives privity to contract, § 3120. for accommodation, rights of party making, § 3122. without consideration binding, when, § 3123. in due course defined, § 312-1. in due course, rights conferred by, § 3125. in due course, of instrument in blank, § 3126. rights of indorsee, § 3129. notice of dishonor, how served after death of iudorser, § 3145. of bill of exchange, when indorser exonerated by delay of presentment, § 3189. INFANT. See Minors. en ventre sa mere, rights of, § 29. INLUENCE, UNDUE. See Undue Influence. INFORMATION, to be given on insurance, § 2563. to be given on marine insurance, §§ 2609, 2670. what need not be given on insurance, § 2570. waiver of rights to, on insurance, § 2568. fraudulent omission to communicate on insur- ance, § 2569. in insurance by one without, § 2578. INHERITANCE, words of, not necessary to pass fee, § 1072. from decedents. See Succession. INJUNCTIONS, preventive relief by, § 3420. provisions concerning, § 3421. when allowed, § 3422. when not allowed, § 3423. INJURIES, right of protection from, § 43. right to defend person and property from, § 50. by tenant for life to real property, § 818. who may sue for, to real property, § 826. threat of, renders contract voidable, §§ 1569, 1570. INDEX. 943 INJURIES— Continued. contract for exemption from liability for, void, § 1G68. obligation to abstain from, § 1708. liability for, by neglect. §§ 1714, 1838. innkeeper, when not liable for, to guest's prop- erty, § 1860. borrower, when to repair, § 1889. hirer, when to repair, § 1929. to ship, liabilities of seamen for, § 2063. liabilities of inland carrier for, § 2194. liabilities of marine carrier for, § 2197. INNKEEPERS. See Lodging-houses. liability as depositary, § 1859. exempted from liability, how, § 1860. lien of. on baggage. §1861. sale of unclaimed baggage for storage, etc., § 1862. posting of statement of charges, etc., § 1868. liability of hotel-keeper, limitation of, §§ 1859, 1860. liability of innkeeper, limitation of, §§ 1859, 1860. INSAMTY. See Persons of Unsound Mind. children of marriages annulled for, § 84. alienation of homestead, in cases of, p. 771, Stat. INSOLVENCY defined, §3450. of special partnership, § 2491. of special partnership, preferential assign- ments forbidden, § 2496. of principal in guaranty, § 2802. of consignee, § 8077. consignor may stop goods in transit on, of con- signee, § 8080. See Code of Civil Proceedure, Appendix, title Insolvency. INSPECTION of things sold with warranty, § 1785. INSTRUMENTS, containing •condition wrong per se, void, § 709. affecting title to real property, ownership of, §994. by married women, acknowledged, how, § 1093. by attorney in fact, executed, how, § 1094. evidencing title declared by judgment, how proved by record, § 1159. what not to be recorded, § 1161. proved by other than subscribing witness, how recorded, § 1162. 944 INDEX. INSTRUMENTS— Continued. execution of, proof of, bow made, §§ 1185, 1198. subsequent recording of prior, void as to sub- sequent, § 1203. unrecorded, valid as between parties with no- tice, § 1217. certain non-negotiable written, transferable, § 1459. in writing prima facie import consideration, § 1614. burden of proof, showing want of considera- tion, § 1G15. distinction between sealed and unsealed abol- ished, § 1G29. Fraudulent, when void against purchasers, § 1227, when not void against purchasers, § 1228. power to revolve, when executed, §§ 1229, 1230. provisions concerning, § 1231. void against creditors, when, § 3439. valid in favor of purchaser, when, § 3441. a^ oided by judgment creditor only, 3442. Unrecorded, valid as between parties and privies, § 1217. INSULT, right of protection from, § 43. INSURANCE. See Contribution; Loss; Sea- worthiness. iusuiance corporations. See Insurance — Kinds of. special partnership cannot carry on, § 2477. defined, § 2527. what subject to, § 2531. lottery or lottery prize not subject to, § 2532. usual liiuds, § 2533. parties defined, § 2538. parties who may be, §§ 2539, 2540. by mortgagor in favor of mortgagee, § 2541. transfer of, to mortgagee, § 2542. in general defined, § 2o4(j. may consist in what, § 2547. by carrier or depositary, § 2548. mere contingency or expectancy not subject of, § 2549. measure of interest, § 2550. Void if insured has no interest, § 2551. when interest must exist, § 2552. change of interest suspends, § 2553. after loss does not suspend, § 2554. INDEX. 945 INSURANCE— Continued. in thinsc separately insured does not suspend, § 2555. by succession does not avoid, § 2556. from one ioiut owner to another does not avoid. § 2557. gamin? and wasrerins: policies, § 2558. concealments in. defined, § 2561. ground for rescission, § 2562. vrhat must be communicated in. § 2563. what need not be. 2564. what deemed material, § 2565. what parties bound to know, § 2566. right to information in. how waived. § 2567. wliat information not necessary, § 2568. fraudulent concealment of facts concerning warranty, avoids. § 2569. parties not bound to state matters of opinion, § 2570. representation, oral or written. § 2571. representation, when made. § 2527. how interpreted, § 2573. when deemed promise. § 2574. how affects policy, § 2575. may be withdrawn, when, § 2576. refers to what time, § 2577. upon belief. § 2578. when deemed false, § 2579. false, ,2Tound for rescission, § 2580. materiality how determined, § 2581. policy of. when void, § 2558. policy of, riaht to rescind, § 2583. policy of, defined, § 2586. must specify what, § 2587. whose interest covered by, § 2588. in favor of agent, § 2589. in favor of partner, § 2590. general description in, to whom applicable, § 2591. for benefit of successive owners, § 2592. not transferred by transfer of thing insured, § 2593. policy of, open, defined, § 2595. valued, defined, § 2596. running, defined, § 2597. efiect of receipt in, § 2598. agreement not to transfer claim under, void, § 2599. warranty in, defined, § 2603. 946 INDEX. INSURANCE-Contin-aed. form of warranty in, § 2604. policy may provide for avoidance, § 2611. express warranty must be in policy, § 2G05. warranty may relate to past, present, or fu- ture, § 2606. express warranty, defined, § 2607. as to future, defined, § 2608. performance of, wtien excused, § 2609. breach of material warranty ground for recis- sion, § 2610. breacli of immaterial warranty does not avoid, § 2611. breach of warranty without fraud, effect, § 2612. premium, how payable, § 446. premium, rate of, must be specified in policy, § 2r387. premium, effect of receipt of policy, § 2598. premium, when earned, § 2616. return of, when due, § 2617. fire patrol. See Fire Patrol. foreign companies doing business on assess- ment plan, requirements of, p. 780, § 6, Stat. when none allowed, § 2618. return of, when not due, § 2619. in case of over-insurance, § 2620. contribution to, §§ 2621, 2622. perils insured against, what may be, § 2531. perils, what covered, § 2626. perils, loss incurred by rescue from, covered by, § 2627. perils excepted, § 2628. caused by fraud, when not covered, § 2629. notice of loss, § 2633. proof of loss under, § 2634. notice of defects or delay, how waived, § 2635. proof of defects or delay in notice of loss, how waived, § 2636. proof of loss by certificate, when excused, § 2637. double, defined, § 2641. contribution under, {j 2642. reinsurance, defined, § 2646. what must be communicated on, § 2647. presumed to be against liability, § 2648. original insurer has no interest in, § 2649. Fire, enect of alteration in thing, §§ 2753, 2754. how affected by acts of insured, § 2755. INDEX. 947 INSURANCE- Contnued. Fire, measure of indemnity, § 2756. investments of, § 427. report of investments, § 42. county lire insurance companies, organization and management of, p. 787, Stat. Life and liealtb, valuation of policies, § 449. policy, what evidence to contain, § 450. payment and cancellation of policy, § 4.51. cajDital stock of mutual insurance company, p. 785, § 8, Stat. when payable, § 2762. who insured by,f§ 2763. may be transferred, etc., to person having no interest, § 2764. notice of transfer not necessary, § 2765. measure of indemnity, § 2766. return of guarantee notes, p. 786, § 9, Stat. • does not pass to assignee for benefit of credit- ors, § 3470. valuation of policies, § 447. health, on assessment plan, act relating to, p. 777, Stat. annuity or endowment, on assessment plan, act relating to, p. 777, Stat. life, on assessment plan, act relating to, p. 777, Stat. Marine, insurer not liable for damages by perils of the sea, § 2197. perils of the sea defined, § 2199. defined, § 2655. insurable interest under, § 2659. owner of ship has insurable interest, § 2660. insurable freightage, § 2661. expected freightage, when insurable, § 2662. insurable interest under charter-party, § 2663. insurable interest in profits, § 2664. of charter of ship, § 2665. ship's manager cannot bind owners to, § 2389. what must be communicated, § 2669. what information material, § 2670. when persons insured presumed to have infor- mation, § 2671. effect of concealments upon, § 2672. representation willfully false, avoids, § 2676. eventually false, does not avoid, § 2677. warranty of seawortliiness implied, § 2681. meaning of "seaworthy," §S 2682, 2684. 948 INDEX. INSURANCE— Continued. warranty of setworthiness, when complied witb, §2083. warranty of seaworthiness, effect of, § 2684. different degrees of seaworthiness, §§ 2685, 2686. warranty of neutrality, § 2688. voyase covered by, how determined, §§ 2692, 2693. deviation defined, § 2694. deviation, when proper, § 2695. deviation, when improper, § 2696. deviation, effect of, § 2697. loss under, total or partial, §§ 2701, 2702. actual or constructive loss, § 2703. actual total loss, § 2704. constructive total loss, § 2705. actual loss, when presumed, § 2706. on cargo, when voyage brol^eu up, § 2707. covers expenses of reshipment, when, § 2708. abandonment unnecessary upon actual total loss, § 2709. free of average, effect of, § 2711. against total loss only, effect of, § 2712. abandonment, § 2716. insured may abandon, when, § 2717. thing insured belongs to insurer, when, §§ 2724, 2725. agents of insured are agents of insurer after abandonment, § 2726. abandonment not necessary, § 2727. abandonment, effect of, § 2728. abandonment, irrevocable, § 2729. abandonment, eft'ect of insurer's refusing, § 2731. insured not obliged to abandon, § 2732. valuation in policy, when conclusive, § 2736. valuation in policy, when applicable to partial loss, § 2737. insured may recover proportion of profits, when, § 2738. valuation in policy, apportioned, § 2739. valuation in policy, of profits, § 2740. measure of indemnity under open policy, § 2741. in case of damage, § 2742. where expenses incurred, § 2743. for general average, § 2744. where insured entitled to contribution, § 2745. INDEX. 94» INSURANCE— Continued. in case of partial loss of ship, etc., § 2746. investments of. § 427. report of investments, § 427. Accident. act for incorporation of mutual insurance com- panies, p. 785, Stat. an assessment plan, act relatins: to, p. 777, Stat. Title. accumulating surplus fund, § 432. dividends, §§ 420. 430. plant of company considered as part of assets, § 427. INSURANCE COMMISSIONER, corporation act- insi: as surety, duty of insurance commission- er, p. 726, § 3, Stat. duties as toward county insurance companies, p. 787, Stat. duty of, and rights as towards insurance com- panies on assessment plan, pp. 783, 784, §§ 10, 13, Stat. INSURANCE CORPORATIONS. See Corpora- tions. INTEMPERANCE, habitual, ground for divorce, § 92. as ground for divorce, to exist, how long, § 107. INTENTION to desert, not always coexistent with separation, § 100. of grantor in ambiguous grant, § 1069. of testator, §§ 1317, 1370. of testator, huw ascertained, § 1318. overrules grammatical construction, § 1324. overrules technical meaning, § 1327. substantial compliance with, sulhcient, § 1348. to make ademption, must be in writing, § 1351. to extinguish old obligation, necessary in no- vation, § 1531. presumed, when, § 1533. to deceive, an essential element of fraud, § 1572. to govern interpretation of contract, § 1636. how ascertained, § 1637. when ascertained by the language, § 1638. when ascertained by the writing alone, § 1639. superior to terms or written contract, when, § 1640. general terms restricted by main, § 1648. Civ. Code— so. 950 INDEX. INTENTION— Continued. particular clauses subordinate to general, § 1050. words inconsistent witli, rejected, § 1653. presumption of, to destroy or cancel contract, § 1699. of trustor, necessary to creation of trust, § 2221. revision of contract so as to conform to, § 3399. how ascertained in revision, § 3401. fraudulent, question of fact, § 3443. INTEREST, in bequest of money, when accrues, § 1366. on legacies, § 1369. application of payments to. § 1479. estopped by offer of performance, § 1504. loan of monev presumed to be upon, § 1914. defined, § 19i5. annual rate of, § 1916. legal rate of, §§ 1917. 1918. when becomes part of principal, § 1919. on judgment, § 1920. when trustee required to pay, §§ 2237, 2262. rate on bottomry, § 3022. rate on respondentia, § 3039. rate on protested foreign bill, § 3236. as damages, § 3287. as damages in actions other than contract, § 3288. as damages, limit of rate of, by contract, § 3289. acceptance of principal waives, § 3290. INTERESTS IN PROPERTY absolute, § 679. qualified, § 680. .ioint, § 683. partnership, § 684. in common, § 685. present, § 689. future, § 690. perpetual, § 691. limited, § 692. future vested, § 694. future contingent, § 695. future contingent, may be alternative, § 696. future contingent, not void because improb- able, § 697. future right of posthumous children, § 698. INDEX. 951 IXTERESTvS IN PROPERTY— Continued. future, pass by transfer, § G99. mere possibility of, not transferable, § 700. denominated estates, § 701. classification. § 702. future, none, unless specified, § 703. when void for suspendins: alienation, § 716. future, how defeated. §§ 739, 740. future, when not defeated, §§ 741. 742. time of creation of, § 749. chattel, § 70.5. meruer of. destroys servitude. § 811. what affected by transfer, § 1083. certain, in remainder, not affected by death of devisee, § 11.34. in ship, how transferred, § 1135. in existing trust, how transferred, § 1135. trustee must crive beneficiary notice of acquisi- tion of, § 2233. transfer of. when mortgage, § 2921. INTERPRETATIOX, representation in insurance, § 2573. agreement to indemnify, § 2778. of codes. See Codes, of contracts. See Contracts, of conveyances. See Conveyances, of Definitions. See Definitions, of guaranty. See Guaranty, of negotiable instrument. See Negotiable In- strument, of obligations. See Obligations, of suretyship. See Surety, of wills. See Wills, of words and phrases. See Words, of writings. See AYritings. INTERPRETER, officer talking acknowledgment may employ, § 12ul. INTESTACY, will interpreted to avoid, if possible, § 1320. disposition of property in case of, § 1384. succession in case of. See Succession. INUNDATION, voluntary deposit in case of, § 1815. duty of depositary, § 1816. INA'ENTOR. See Product of Mind. INYENTORY of separate property of wife, § 165. effect of filing, § 166. specific legatee must make and deliver, § 1365. 952 INDEX. INVENTORY— Continued. assiijnor for benefit of creditors must make, §§ 3401, 34(;2. INVESTMENT of trust money, § 2261. of tiuardians. See Guardian and Ward. INVOLUNTAllY DEPOSIT. See Deposit. IRRIGATION, act regulating sale, rental, and dis- tribution of waters for, p. 843, Stat. act authorizing supervisors to fix rates at which water sold. p. 850, Stat. act providing for securing rights of way for conveyance of water, p. 843, Stat. statutes relating to generally. See General Laws, title Irrigation. ISLANDS in navigable streams, § 1016. in unnavigable streams, § 1017. formed by division of stream, § 1018. ISSUE, construction of word, § 1071. JETTISON defined, § 2148. in what order made, § 2149. by whom, § 2150. loss, how borne, § 2151. loss by, called general average loss, § 2152. loss of cargo stowed on declv, § 2154. application of rules concerning, § 2155. JOINT authority, construction of words, § 12. ownership, § 683. interest defined, § 683. authorship, § 981. and several obligation, § 1427. obligation, § 1428. obligation, contribution, § 1429. contribution of parties, §1429. debtor, effect of performance by one, § 1474. creditor, performance to one, § 1475. creditor, directions by one, § 1476. debtors, effect of release of one, § 1543. and several, contract when presumed, § 1659. owners, delivery of deposit to, how made, § 1827. service, how performed after death of joint employee, § 1991. interest, change in, does not affect insurance, § 2557. drawees, presentment to, § 3187. JUDGES AND JUDICIAL OFFICERS may sol- emnize marriage, § 70. may take acknowledgments, § 1181. proceedings before, for adoption of child, § 226. INDEX. 95t JUDGES, ETC.— Continued. duty in sueti case, § 227. duty on examination of insane person, § 258. application for appraisement on execution a,2:ainst homestead, § 1245. duty on homestead petition, § 1249. duty on return of appraisers, §§ 1253, 1254, 1258. approval of bond of assignee for benefit of creditors, § 3467. may require assignee to account, when, § 2469. may consent to apprenticeship of child, when, § 265. JUDGMENT, annulling marriage. § 86. instruments evidencing title declared by. ac- knowledged how, §§ 1159, 1204. interest on, § 1920. attornment to stranger by virtue of. § 1948. on dissolution of partnership, § 2452. on indemnity, § 2778. by creditor against surety, effect of, § 2839. lien, § 3067. of rescission, § 3406. of cancellation, § 3412. priority, bona fide purchaser, judgment credit- or, § 1214. JUDICIAL SALP:, implied warranty on, § 1777. ])ledgee may foreclose redemption by, § 3011. JUSTICE OF THE PEACE may solemnize mar- riage, § 70. consent to apprenticing child, § 265. order meeting of corporations, when, § 311. may talie acknowledgment, § 1181. certificate of County Clerk thereupon, § 1194. KINDRED, degree of, how established, § 1389. series of degrees of. § 1391. direct line of, § 1392. collateral line of, *5 1393. of half-blood inherit equally, § 1394. KNOWLEDGE. See Notice. of principal not necessary to create guaranty, § 2788. necessary to ratification, § 3314. LADING. See Bill of Lading. LAND defined, § 659. state, and appuitenance thereto, when granted to corporation, §§ 474-476. when such reverts to State, § 477. is real property, § 658. 954 INDEX. LAND— Continued, defined, § 059. limitation on leases of aj?ricailtural, § 717. burdens and servitudes, §§ 801, 802. rijibt of flooding, an easement, § 801. riglits of owner, § 829. as real property. See Property. LAND AND BUILDING CORPORATION. See Corporations. Kinds of. LANDLORD AND TENANT. See Lease; Rent; Repair, tenant for life, heirs of, when take as purchas- ers, § 779. relation of, how terminated at will, § 789. tenant at will, how required to quit, § 789. when landlord may re-enter on property, § 790. tenant for life, rights of, § 818. tenant for years or at will, rights of, §§ 819, S20. tenant may remove what fixtures, § 1019. attornment by tenant, when unnecessary, § lllL landlord must repair, when, § 1941. tenant may repair at expense of landlord, when, § 1942. acceptance of rent by landlord renews lease, § 1945. continued possession, when renews lease, § 1945. attornment by tenant, when void, § 1948. tenant must give notice to landlord of adverse proceeding, § 1948. when rent payable by tenant, § 1947. tenant of part room entitled to whole, § 1949. tenant must inform landlord of adverse pro- ceedings, § 1949. tenant released from rent by letting room in parts, § 1950. landlord must not let room in parts, § 1950. number of cubic feet required for each person, p. 801, Stat, damages for Avillful holding over, §§ 3344, 3345. LAI*SP] OF TIME, divorce denied on showing what, § 111. defined, § 125. presumptions arising; from may be rebutted, § 12a. proposal to contract, when revolted by, § 1587. INDEX. IBB LAPSE OF TIME— Continued. partnership dissolved by, § 2450. does not extinenisb lien, § 2911. extinguishes bottomry lien, § 3027. does not legalize nuisance, § 3490. as limitation. See Limitations. LATEILVL SUPPORT, easement of. §§ 801. 832. LAWFUL, object of contract must be, § 1596. consideration must be, § IGOT. contract interpreted so as to be, § 1643. LAWS, effect of Code on, § 20. LEASE. See Landlord and Tenant; Rent, of agricultural lands, limitation, § 717. of town or city lots, limitation, § 718. remedies of lessor against lessee and assigns for breach, § 822. remedies of lessee against assigns of lessor for breach, § 823. for life, rent, how recovered, § 824. tenant may remove what fixtures, § 1019. lessor upon hire must secure quiet possession, § 1927. remedies of lessor against lessee misusing property. § 1930. lessor may terminate, when, § 1931. Of personal property, letter must deliver to hirer, § 1955. secure hirer in quiet enjoyment, § 1955. put in proper condition, § 1955. repair, when, § 1955. bear extraordinary expenses, when. § 1956. liable to hirer for certain expenditures, § 1958. Of real property, lessor must put in proper con- dition, when, § 1941. lessor must repair, when, § 1941. lessor liable for certain expenditures, § 1942. term, when no limit fixed, § 1943. of lodgings for indefinite term. § 1944. when presumed renewed, § 1945. notice, when necessary to terminate, § 1946. rent for, when payable, § 1947. tenant must inform lessor of adverse proceed- ings, § 1949. in subdivisions of rooms, forbidden, § 1950. LEi^ACY. See Ademption; Wills. LEGISLATION, cannot be restrained by injunc- tion, § 3423. LE0ITI:MACY. see Illegitimacy. " " 84. 956 INDEX. LEGITIMACY— Continued. of children of divorced marriages, §§ 144, 145. presumption of, § 193. of children born out of wedlock, § 194. who may dispute, § 195. LESSEE. See Lease. LESSOR. See Lease. LETTER OF CREDIT defined, § 2858. may be addressed to Avhom, § 2859. writer liable to whom, § 2860. special defined. § 2801. general defined, § 2862. general, any person may give credit under, § 2862. general, several persons may give credit under, § 2863. when deemed continuing guaranty, § 2864. writer liable without notice, when, § 2865. writer liable only for credit duly given, § 2866. credit given must agree with terms, § 2866. LETTERS, ownership of private, § 985. containing valuables, when common carrier not liable for loss of, § 2177. LIABILITIES of minors and persons non compos for wrongs, § 41. husband for support of wife, § 174. depositary, for damage from wrongful use of deposit, § 1835. depositary, for damage from negligence, § 1840. of innlcepers, § 1859. inkeepers, Avhen excused from, § 1860. finder of lost property, § 1S65. factor to principal, <^ 2029. factor cannot relieve himself from, § 2030. of ship-master on abandonment of ship, § 2041. carrier may terminate his, how, § 2121. of inland carrier for loss, § 2194. marine carrier for loss, §§ 2197, 2198. trustee mingling trust funds, § 2236. trustee, for breach of trust, §§ 2237, 2238. partners, §§ 2442. 2443. one held out as partner, §§ 2444, 2445. indemnity against, § 2778. LIBEL, defamation by, § 44. defined, § 45. LICENSE, marriage, § 69. person solemnizing marriage must require pro- duction of, § 72. INDEX. 957 LICENSE— Continued. raarriase, original to be filed with recorder, § 74. copy given to parties, § 74. to take tolls on bridges, wharf, ferry, § 528. building and loan associations, licenses for, p. 733, § 17, Stat. LIEN of hotel, inn, boarding-house, and lodging- house lieepers. § ISGl. homestead liable for certain, § 1241. does not revolve prior will. § 1301. seaman not to lose his, by agreement, § 2052, of carrier for freightage, § 2144. carrier for fare, § 2190. for freightage, ship's manager cannot give up, § 2389. of partner upon partnership property, § 2405. of mining partner, § 2514. of mining partner, purchaser of interest takes subject to, §§ 2517, 2518. accessory to some obligation, § 2909. defined, § 2872. general, defined, § 2S74. special, defined, § 2875. right of holder of in certain case, § 2876. 2. of factor, § 3053. banlier, § 3054. ship-master, § 3055. mates and seamen, § 3056, sheriffs and similar officers, § 3057. of iudgment, § 3058. of mechanic, § 30.59. upon ships for debts, § 3060. stoppage in transit as mode of enforcement, § 3076. damages for conversion of property subject to, § 3338. servants, liens of, where wages not paid by corporation, p. 750 et seq., Stat, loggers and laborers' liens, act giving, p. 797, Stat. act to secure wages of employees on thresh- ing .machine, p. 800, Stat, mechanics and laborers hired by corporation, lien of, p. 750, Stat, animals, lieu in favor of owner of animal tor propagating purposes, p. 795. Stat, depositary for hire, lien of, § 1856. depositary's, sale of property to satisfy, § 1857. mechanics'. See Mechanics' Liens. LIENS, MECHANICS'. See Mechanics' Liens. LIFE INSURANCE. See Insurance. Life. LIMITATIONS for divorce, §§ 124, 127. of claim of aliens to inherited property, § 672. of leases of certain real property, §§ 717, 718. INDEX. 959 LIMITATIONS— Continued. of successive estate for life, § 774. clear and distinct, in grant, not controlled by other words, § 1066. words of in will, § 1335. directors, what actions against never ban-ed, § 309. conveyance by married women, action to re- cover property when barred. § 164. action by husband to recover property convey- ed bv wife, limitation of. § 164. LINEAL WARKANTIES abolished, § 1115. LIQUIDATED DAMAGES, when contract may fix. for breach, §§ 1670, 1671. LIQUIDATION. See Partnership. LITERAKY CORPORATIONS. See Corporations, Kinds of. LITERARY PROPERTY. See Products of Mind. LIVESTOCK, act to prevent combinations to ob- struct sale of livestock, p. 705, Stat. LOAN. See Hiring. ship-master may bon-ow. on credit of owner, § 2374. ship's manager has no power to borrow on cargo or ship. § 23S9. rights of lender under bottomry, §§ 3023, 3025. For exchanae defined, §§ 1902, 1903. transfers title, § 1904. contract cannot be modified by lender, § 1905. provisions applicable to, § 1906. For use defined, § 1SS4. does not transfer title, § 1885. borrower of animals, obligations of, § 1887. borrower under, must use what care, § 1886. borrower must use what sljill. § 1888. when to repair injuries. § 1889. how must use thing lent, § 1890. must not relend, § 1891. when to bear expense, § 1892. lender liable for defect, § 1893. may require return of thing lent, § 1894. when may terminate, § 1895. duties of, on termination of, § 1896. Of money defined, § 1912. to be repaid in current money, § 1913. for rewai-d, § 1914. reward for, called interest. § 1915. annual rate of interest, § 1916. legal interest, §§ 1917, 1918. 960 INDEX. LOAN— Continned. interest, when becomes part of, § 1919. interest on judc:ment, § 1920. Under bottomry defined, § 3017. rate of interest, § 3022. risbts of lender, § 3023. when due, § 302G. LODGING-HOUSE KEEPERS, lien on baggage, § 1861. sale of unclaimed baggage by, § 1862. posting of statement of charges by, § 1863. number of cubic feet required for each person, p. 801, Stat. act concerning lodging-houses and sleeping apartments in cities, p. 801, Stat, misdemeanor, violation of cubic air law, p. 802, § 2, Stat. See Lodgings. LODGINGS, for what term presumed hired, § 1944. rent, when payable, § 1947. LOSS, by collision of ships, how apportioned, § 1973. of thing deposited, obligation of depositary, § 1838. innkeeper, when not liable for, § 1860. employer must indemnify employee for, caused by negligence of former, § 1971. by jettison, how borne, §§ 2151, 2152. liability of inland carrier for, § 2194. of marine carrier for, § 2197. in partnership, share of partners in, § 2403. in partnership, agreement for division of, when implied, § 2404. partner to be indemnified for certain, § 2412. insurer liable, for what, § 2626. liable when incurred in rescue from peril, § 2627. insurer not liable for. when caused by peril not insured against, § 2628. not liable when caused by fraud of insured, § 2629. when caused by negligence, § 2629. notice of, must be given, § 2633. defects in notice, how waived, § 2635. delay in notice of, how waived, § 2636. In marine insurance, total or partial, § 2701. when partial, § 2702. total, may be actual or constructive, § 2703. ■I' INDEX. 961 LOSS— Continned. total actual, defined, § 2704. total consti-uctive, defined, § 2705. actual, when presumed, § 2706. notice of abandonment not necessary on, § 2709. free of average, defined, § 2711. insurance confined to, does not cover construc- tive loss, § 2712. how estimated, under open policy, § 2741. effect of total, on contract of bottomry, § 3025. LOST PROPERTY. See Finder. LUGGAGE, lien of hotel, inn, boarding-house, and lodging-house keepers on, § 18G1. sale of unclaimed, for storage, etc., § 1862. defined, § 2181. common carrier of persons must carry, when, § 2180. common carrier of persons, how must carry, § 2181. liability of common carrier for, § 2182. common carrier must deliver, where, § 2183. common carrier has lien upon, for fare, § 2190. LUNATICS. See Persons of Unsound Mind. MAIL, notice of dishonor by, § 3144. notice of dishonor sent by, when, § 3148. notice of dishonor excused when there is none, § 3155. act permitting mail carriers to ride free, p. 832, Stat. MAJORITY, words giving joint authority gives such to, § 12. of members of mining partnership control busi- ness, § 2520. MA.TORITY, AGE OF, what is, § 25. period of minority, how calculated, § 26. MALES under twenty-two, minors, § 25. of eighteen and upwards capable of marrying, § 56. MALICE, when not inferred from publication, § 47. interest as damages in case of, § 3288. exemplary damages for, § 3294. MANUFACTURE, agreement to, need not be in writing, § 1740. implied warranty on sale of goods, §§1769,1770. MARLNE CARRIERS. See CaiTiage; Carrier. Common. Civ. Code— 81. ^^ INDEX. MARINE INSURANCE. See Insurance. MARKS on goods sold, implied warranty of gen uineuess, § 1773. MARKS, TRADE. See Trademarks. MARRIAGE, defined, § 55. who capable of, § 5G. proof of, how made, § 57. when voidable from incapacity, § 58. when voidable from fraud or force, § 58. incestuous, § 59. between whites and negroes, etc., void, § 60. subsequent, when void, § 61. promise, when neither party held by, § 62. contracted without state, § 63. consent alone will not constitute, § 55. declaration of, time of filing of, § 79V2, declaration of, failure to file penalty for, § 79i^. must be solemnized, § 55. liow solemnized, § 68. license, § 69. by Avhom solemnized, § 70. no particular form for solemnization, § 71. ■ substantial requisites for solemnization, § 72. certificate, § 73. certificate to parties and county recorder, § 74. registry of, § 74. declaration, how made, § 76. declaration to be recorded, § 77. action to aflirm unsolemnized, § 78. action where party denies, § 78. duty of recorder as to registry, § 79. judicial determination of void, § 80. when annulled, § 82. action to annul, when and by whom commenc- ed, § 83. children of annulled, § 84. custody of children of annulled, § 85. effect of judgment of nullity, § 86. dissolution, § 90. husband not liable for debts of wife contracted before, § 170. legitimacy of issue after dissolution, § 194. releases from parental authority. § 204. of ward, supersedes guardian, § 254. restraint upon, when void, §§ 710, 1676. effect of, upon will made previous, §§ 1298- 1300. damages for breach of promise of, § 3819. INDEX. 96^ ^[ARRI AGE— Continued. advertisinc: to annul is a misdemeanor. See Penal Code, § loOVo. between members of peculiar reli.ffious denom- inations, how licensed and solemnized, § T9i/^. divorced persons cannot marry within one year, § 01. MARRIAGE SETTLEMENTS, how executed, § ITS. acknowled2:ed and recorded. § 179. effect of recording or nonrecording, § 180. minor may make. § 181. MARRIED WOMEN may become corporators, of- ficers, and members of certain corporations, § 285. stock of, how transferred. § 32.5. dividends payable to, § 325. mav hold stock in homestead corporations, § 561. in savings and loan corporations, § 575. grant by. acknowledged how, § 1093. power of attorney acknowledged how, § 1094, effect of conveyance by, § 1187. mav dispose of separate propertv by will, § 1273. acknowledgment by, §§ 1186 et sep. acknowledgment by. how executed. § 1093. power of attornev of. how executed. § 1094. MARSHALING ASSETS, order of, §§ 2899, 3433. MASCULINE GENDER, includes feminine and neuter, § 14. MASONIC FRATERNITY, may hold what real estate. § 596. MASTER AND SERVANT. defined, § 2009. employment. See Employment. services. See Services. wages. See Wages. mutual right of protection between, §§ 49, 50. abduction or enticement of servant forbidden, § 49. injury to servant forbidden. § 49. relation of master and servant. § 264. contract of apprenticeship, § 264. act of April 3. 1876. as to apprenticeship, § 276. who may bind. § 276. liabilities and obligations, § 276. relation in general, § 2009. ^64 INDEX. MASTER AND SERVANT— Continuerl. term of birinj?, §§ 2010, 2011. renewal ol relation between, § 2012. time of service, § 2013. servant to deliver over to master without de- mand, § 2014. master may discharge servant, § 2015. relation, how terminated, § 2015. coercion of employee not to join union is a mis- demeanor. See Penal Code, § 079. act regulating hours of labor and employment of minors, p. 775. payment of wages of mechanics and laborers of corporation, p. 750 et seq. act to secure lien wages of employees on threshing machine, p. 800, stat. loggers and laborers' liens, act giving, p. 797, Stat. lieu of servant where wages not paid by cor- poration, p. 752, § 2, Stat. liens of mechanics and laborers hired by cor- poration, p. 750, Stat. MASTER, SHIP'S. See Ships and Shipping. MATE, power of master of ship over, § 2037. defined, §2048. how engaged and discharged, § 2050. when wages of begin, § 2055. if vessel unseaworthy, may refuse to serve, § 2051. wrongfully discharged, may recover wages, § 2057. disabled on voyage, entitled to wages, § 2062. cannot ship goods on his own account, § 2064. MATP]RIAL1TY of concealment in insurance, § 2565. of representation in insurance, how determin- ed, §2581. MATERIALS, ownership of thing formed out of, of another, § 1028. of thing formed by uniting inseparable, § 1029. of personal property by uniting, of several own- ers, § 1030. agreement to manufacture, where manufactur- er owns, § 1740. MATURITY, apparent, defined, § 3132. of bill payable at sight, § 3134. of promissory note paj'able at sight, § 3135. MAXIMS of jurisprudence, § 3509. MAYOR may solemnize marriage, § 70. INDEX. 96& MAYOR— Continued. may take proof and acknowledgment of instru- ments, § 1182. MEASURE OF DAMAGES. See Damages. MECHANICS' LIENS, where regulated, § 3059. MECHANICS' INSTITUTES, act providing for formation of, p. 737. MEETINGS, public, reports of are privileged com- munications, §§47, 48. MEMORANDUM on contract for sale of personal property, § 1739. on contract for sale of real property, § 1741. of auctioneer binding on parties, § 1798. of auctioneer to contain what, § 1798. MERCHANDISE, implied warranty as to quality of. §§ 17G8-1771. MERGER of interests, when destroys servitude, § 811. of interests, when destroys hiring, § 1933. of declarations of trust, S 22.54. MESSAGES, CARRIERS OF. See Carriage; Car- riers; Telegraph. MIND. See Product of Mind. MINES, protection of stockholders in, §§ 321, 587. act for protection of miners, p. consolidation of, § 361. what appurtenances to. deemed fixtures, § G61. partnership in. defined, § 2.511. partnership, how formed, § 2512. lights of partner in, § 2513, 2.514. when partnership property, § 2515. partner may convey interest. § 2516. effect of purchasing partnership interest, §§ 2517, 2518. power of partner as agent, § 2519. majority of members to conduct business. § 2.520. hydraulic mining, what is, § 1425. hydvatilic mining, where can be carried on, § 142. act validating record of notices of location of mining claims, § 1159. affidavits showing work or posting of notices may be recorded, § 1159. duty of mining corporation to keep books, p. 807, § 1, Stat. power of directors to sell, lease, mortgage, or dispose of property, p. 810, Stat. 966 INDEX. MINES— Continued. ri^ht of stockholder to examine grounds, p. 809, § 2, Stat. duty of officers of mining corporation to post accounts, vouchers, etc., and penalty for fail- ure, p. 807, § 1 et seq., Stat. act providing for removal of officers, p. 804. escape shaft, duty of mine owner or corpora- tion to provide, p. 803, § 2. Stat. escape shaft, failure to provide, liability for damages, p. 803, § 3, Stat. second mode of egress to be provided for min- ers, p. 803, § 1, Stat. MINING COIIPOKATIONS. See Corporations. MINING PARTNERSHIPS. See Partnerships. MINORS, posthumous children. See Posthumous Children. who are, § 25. period of minority, how calculated, § 26. custody, § 32. cannot give delegation of power, § 33. cannot make contract respecting real estate, when, § 33. contracts subject to disaffirmance, § 34. when may disaffirm, § 35. cannot disaffirm contract for necessaries, § 36. cannot disaffirm certain obligations, § 37. liable for wrongs, § 41. not for exemplary damages, § 41. jiow may enforce rights, § 42. when capable of marriage, § 56. wife entitled to earnings of, living with her apart from husband, § 196. capable of marriage, may make marriage set- tlement, § 181. when wages may be paid to, § 212. may apprentice themselves, § 264. act of April 3, 1876, as to apprenticeships of, §276. stock of, may be represented at meeting of cor- poration. § 313. stock in homestead corporations, § 561. stock in savings and loan corporations, § 575. restraints upon marriage of, allowed, §§ 710, 1676. allowance out of fund for support of, § 726. may contract, to what extent, § 1557. sale of tobacco to minor under sixteen, § 308. INDEX. 967 MINORS— Continued. guardian of children in orpbun asylums, p. 776, Stat, act regulating hours of labor and employment of minors, p. 775. Adoption of children. See Adoption. MISDEMEANOR, supervisor violating statute as to sale of franchise, p. 814, § 2 Stat, violation of right of trademark, p. 836, § 2, Stat. MISREPRESENTATION by depositary, when renders him liable, § 1838. trustee must not benefit by, § 2228. partner must not benefit by, § 2411. fraudulent, by debtor, as to value of pledge, § 2999. contract through, not specifically enforced, § 3391. MISTAKE in will, how corrected, § 1340. consent to contract given by, voidable, § 1566. of fact or law, § 1576. of fact defined, § 1577. of law defined, § 1578. of foreign law. mistake of fact, § 1579. in written contract disresrarded, § 1640. right to rescind for, § 1690. thing obtained through, restored when, §§ 1712. 1713. thing gained by, held in trust, § 2224. MINTURE of trust fund by trustee, § 2236. of goods. See Confusion of Goods. MOCK AUCTIONS. See Auctions. MONEY, performance in respect to payment, § 1478. oft'er to pay, how made, § 1500. f'xcliange of, § 1804. implied warranty on exchange, § 1807. investment of trust. § 2261. negotiable instrument must be pavable in, § 3088. MONTH defined, § 14. MONOPOLIES, act to prevent combinations to ob- struct sale of livestock, p. 705. MONUMENTS, coterminous owners bound to maintain, § 841. MO UAL OBLIGATION, how far good considera- tion, § 1006. 968 INDEX. MORALS, contract contrary to good, unlawful, § 1667. MORTGAGES, power to sell in, deemed part of security, § 858. to be recorded, § 1164. separate book for recording, § 1171. homestead liable for, § 1241. husband and wife must acknowledge, of home- stead, § 1242. on property not a revocation of will, § 1302. insurance by mortgagor for benefit of mortga- gee, § 2541. insurance, effect of mortgagor's action, § 2542. lien discharged by lapse of time, § 2911. defined, § 2921. on what created, § 2921. how only created, renewed, or extended, § 2922. a special lien, § 2923. what deemed, § 2924. absolute transfer shown to be, when, § 2925. on Avhat lien, § 2926. does not entitle mortgagee to possession, § 2927. mortgagee may acquire possession by new agreement, § 2927. not a personal obligation, § 2928. person bound by, may not impair security. § 2929. title acquired subsequent to, inures to mort- gagee, § 2930. may be foreclosed, § 2931. power of sale given by, § 2932. power of attorney to execute, how made, § 2933. recording assignment, § 2934. recording assignment, when not notice, § 2935. asigument of debt secured by carrier's secur- ity, § 2936. how discharged, §§ 2938-2940. penalty for not acknowledging satisfaction, § 2041. bottomry and respondentia not governed by law of, § 2942. what subject to, § 2947. form of, for real property, § 2948. what must be recorded as. § 2949. conveyance with mortgage under cover, how defeated, § 2950. of real property, how acknowledged, recorded, etc., §2952. INDEX. 969 MORTGAGES— ContinnecL proceedings on foreclosure. See Foreclosure. satisfaction of, hj foreign executor or admin- istrator, § 2939V2. bona fide mortga.i2:ee. rights as against judg- ment creditor, § 1214. Of personal property, on what may be made, § 2955. form, § 2956. when void against creditors and incumbranc- ers. § 2957. of ship, when void, § 2958. where recorded. § 2959. of property in transit, § 2960. of property of common carrier, § 2961. recording in different places, § 2962. how aclinowledged, recorded, etc., § 2963. certified copy recorded in other county, § 2964. property, when exempt from operation of, § 2965. may be foreclosed, § 2967. property in, may be attached, § 2968. proceedings when property in attached, §§ 2969, 2970. provisions concernimr, do not applv to ship, § 2971. on growing crops, §§ 2955, 2972. MOTHER of illegitimate unmarried minor entitled to custody, § 200. father cannot transfer custody of child without writen consent of, § 197. illegitimate child cannot be adopted without consent of, § 224. consent, when necessary to apprenticeship, § 265. of illegitimate child succeeds to his propertv. § 1388. MUTrALITY of consent, § 1580. of intention, contract interpreted to give, § 1036. NAME of adopted child, § 228. of corporations to be stated in articles, § 290. error in articles of incorporation does not inval- idate, § 357. notice of change of partnership sufficient notice of dissolution, § 2454. fictitious, when may be used, §§ 2466, 2467. 970 INDEX, NAME— Continued. , • + k^ ^i^^ certificate of change of partnership to be filed and published, § 24G9. county clerk to keep register of partnership, § 24*70. conveyances bv persons whose names changed, p. 765, § 1, Stat, record of conveyances by persons whose names changed, p. 766, § 3, Stat. NAVIGATION, domestic, § 962. foreign, §962. rules of, § 970. collision from breach of rules, §§ 971, 972. NECESSARIES, minors and persons of unsound mind cannot disaffirm contract for, § 36. neglect of husband to provide, ground for di- vorce, § 105. furnished to wife at cost of husband, § 174. promise of adult child to pay for, furnished parent, valid, § 206. furnished to child, when parent liable, § 207. furnished to child, when parent not liable, §208. NEGLIGENCE. See Care; Contributory Negli- gence; Delay; Skill, willful, § 105. willful, of husband, ground for divorce, § 92. willful, ground for annulling indentures of ap- prenticeship, § 276. must continue how long to constitute ground for divorce. § 107. liability for, § 1714. libility of depositary for, §§ 1838, 1840. liability of innkeeper for, § 1859. borrower to repair injuries caused by, §1889. hirer to repair injuries caused by, § 1929. employer must indemnify employee for loss caused by, § 1971. responsibility of employee for. § 1990. carrier cannot exonerate himself from antici- pated liability to be caused by future, § 2175. person claiming under ostensible authority must be free from, § 2.334. of agent, principal responsible, when, § 2338. shipmaster, when responsible for, of employees, § 2383. ., ^ shipmaster, when responsible for, of pilot, §2384. II INDEX. 971 NEGLIGENCE— Continued. insurer, wlien liable for loss throusrb, § 2629 delay, liability of carrier f(.r. § 216g. NEGOTIABLE INSTRUMENT. See Bills of Ex- change ; Checks; Holders; Indorsement; No- tice; Promissory Notes. defined, § 3087. to be for unconditional payment of money, §3088. payee must be ascertainable, when, § 3989. in alternalive, § 3090. date, § 3091. may contain pledge, § 3092. must not contain other contract, § 3093. may bear any date, § 3094. different species, § 3095. interpretation of, as to time of payment, § 3099. as to place of payment, § 3100. when payable to order. § 3101. when issued unindorsed, § 3102. when payable to fictitious person, § 3103. when and for what presumed to be made, §3104. indorsement of, defined, § 3108. how to be made, § 3109. may be made on separate paper, when, § 3110. ueneral, defined. § 3112. special, defined. §3113. general, how made special, § 3114. special, how may destroy negotiability, § 8115. implied warranty, § 3116. before delivery to pavee, effect. § 3117. without recourse, eft'ect, §§ 3118, 3119. gives privity to contract, § 3120. without consideration, when binding, § 3122. in due course, defined, § 3123. in due course, rights conferred by, § 3124. in due course, of instrument in blank, § 3125. presentment for payment, not necessary to charge principal, § 3130. how made, § 3131. Apparent maturity of, defined, § 3132. surrender or proof of loss, may be required on payment, § .3137. dishonor defined, § 3141. notice of dishonor, by whom given, § 3142. form of dishonor, § 3143. notice of dishonor, how served, § 3144. 972 INDEX. XEGOT ABLE IX 1^ TKUMENT— Continued. liow served after death of party notified, § 3145. given in ignorance of death, valid, § 3146. at what time given, § 3147. when to be mailed, § 3148. agent need only give principal, § 3149. time allowed party receiving to give, § 3150. taiies effect in whose favor, § 3151. when excused, § 3155. presentment and notice of dishonor, when excused, §§3156, 3157. delay in, when excused, § 3158. how waived, § 3159. how extinguished, § 3164. implied warranty on sale of, § 1774. duties of agent employed to collect, § 2021. NEUTER GENDER, included in masculine, § 14. NEUTRAL PAPERS, implied warranty, in ma- rine insurance, § 2688. NEWSPAPERS, reports of public meetings are privileged, §§ 47, 48. NOMINAL DAMAGES, when allowed, § 3360. NONRESIDENT, stock of, how transferred, § 326. alien inheriting, when must make claim, § 672. NOTARIES PUBLIC, may take acknowledg- ment or proof in State, § 1181. acknowledgment or proof out of state, § 1182. acknowledgment or proof out of United States, § 1183. offer of performance made to, when, § 1488. negotiable instrument presented to, when, § 3131. bill of exchange payable at office of, when, § 3176. bill presented to, Avhen, § 3186. bill protested by, when, § 3226. protest, how made, § 3227. making protest, may give notice, § 3231. NOTE, PROMISSORY. See Promissory Note- NOTICE, actual, defined, § 18. constructive, defined, § 18, 19. filing inventory of wife's property, as, § 166. to stockholders of meeting to continue corpo- rate existence, § 287. of meeting of corporation, § 302. INDEX. 973 NOTICE— Continued. of directors and stockholders to be given by banks, § 321. assessment of stock, § 335. delinquent assessment. § 337-339. to tenant at will to quit, § 789. effect of such, § 790. of intention to re-enter, § 791. not necessary before action, § 793. rishts of purchaser for value without, §§ 856, 8G9. record of conveyance, as, § 1207. record of instrument as, § 1213. instruments affectino: realty recorded before 1897 as notice, § 1207. unrecorded instrument valid as between par- ties with, § 1217. instruments not avoided against purchaser with, § 1228. of appropriation of water, § 1415, 1416. of selection of one of several alternatives, § 1449. of selection of place of delivery, of adverse claim to deposit, to depositor, § 1825. depositary must give, of deposit to real owner, § 1826. of sale of deposit in danger of perishing, § 1837. dutv of gratuitous depositary ceases upon, § 1847. innkeeper exempted by giving certain, § 1860. of thing found, § 1865. hiring terminated by what, § 1934. tenant must give landlord, of adverse proceed- ing, § 1949. hirer of real property may repair after. § 1942. of personal property may repair after, § 1957. certain, terminates employment, §§ 1996, 1999. of arrival of freight, to consignee, when, § 2120. of storage of freight, to consignee, when, § 2121. bv trustee, of acquisition of adverse interests, § 2233. to principal or agent, when deemed to other, § 2332. of renunciation of partnership, relieves partner, § 2417. Civ. Code-S2. 974 INDEX. NOTICE— Continued. personal, of dissolution of partnership, when necessary, § 2453. by change of name sufRcient, § 2454. of dissolution of special partnership, § 2509. of loss under insurance, § 2633. of loss under insurance, defects in, how waiv- ed, § 2635. delay in, how waived, § 2636. abaudonruent of ship to insurer by, § 2721. requisites of such, § 2722. of transfer of life insurance policy, not neces- sary, when, § 2765. of principal's default, guarantor not entitled to, §2808. to writer of letter of credit, when necessary, § 2S65. recording assignment of mortgage operates as, § 2935. to be given before sale of pledged property, § 3002. of sale of pledged property may be waived, § 3003. to carrier of depositarj^ necessary to stoppage in transit, § 3079. of dishonor, to be given to indorser, § 3116. of dishonor, by whom given, § 3142. form, § 3143. how served, § 3144. how served after death of indorser, etc., § 3145. given in ignorance of death, valid, § 3146. at what time given, § 3147. when to be mailed, § 3148. of dishonor by agent, need only be given to principal, 3149. of dishonor by party charged with, time al- lowed for, § 3150. of dishonor, inures to benefit of other parties, § 3151. of dishonor, when excused, §§ 3155, 3220. delay in, when excused, § 3158. may be waived, § 3159. acceptor for honor entitled to, § 3206. aceptance for honor does not excuse, § 3207. before abatement of nuisance, when nec- essary, § 3503. INDEX. 975 NOVATION, defined. § 15-30. how made. § 1531. a contract. § 1532. rescission of, § 1533. NUISANCE. See Abatement, defined, § 3479. nothins: authorized by statute to be deemed, § 3482. liability of successive owners, § 3483. abatement does not prejudice claim for dam- ages, § 3484. Public, defined. § 3480. not lecralized by lapse of time. § 3490. remedies against, § 3491. indictment against, how regulated. § 3492. when private person may sue, § .3493. abated, bv whom and how, §§,3494. 3495. Private, defined, § 3481. remedies against, § 3501. abated by whom and how, § 3502. onlv upon notice, when, § 3503. NULLITY OF MARRIAGE, causes for, § 82. action to obtain decree of, § 83. effect of, on children, §§ 84, 85. effect of judgment, § 8G. NUNCUPATIVE WILL need not be in writing, § 1276. how executed, § 1288. requisites to make valid. § 1289. proof of. § 1290. probate, § 1291. OATH defined, § 14. person solemnizing marriage may administer, § 72. person taking acknowledgment authorized to administer, § 1201. OB.JECTIONS to offer of performance, where made, § 1501. OBLIGATION, minor cannot disaffirm certain, §37. general rules for interpretation of. § 1423. defined, § 1427. how arise, § 1428. rules for interpretation, § 1429. kinds, § 1430. when joint. § 1431. contribution between joint parties, § 1432. 976 INDEX. OBLIGATION-Continued. when couditional, § 1434. coiiditiouai, species of, § 1436. conditional, what done before enforcing, § 1439. conditional, when performance excused, § 1440. Avhen conditions Toid, § 1441. involving forfeiture, how interpreted, § 1442. subject of ownership, § 1655. how far good consideration, § 1606. implied warranty on sale of written execu- tory, § 1774. not implied from creation of lien, § 2891. specific performance, § 2384. transfer of burden, § 1457. transfer of right, § 1458. alternative, who has right of selection, § 1448. right of selection, how lost, § 1449. jilternative, indivisible, § 1450. alternative, effect of nullity of one or more, § 1451. Extinction of, by performance, § 1473. offer of performance, § 1485. of pecuniary obligation, § 1500. by prevention of performance, § 1511. when part performance operates as, § 1524. by accord. § 1521. satisfaction, § 1523. novation, § 1530. release. § 1542. by rescission, § 1688. Imposed by law, to abstain from injury, § 1708. compensate for deceit, § 1709. restore thing wrongfully acquired, § 1712. restore thing upon demand, § 1713. restore thing without demand, § 1713. compensate for negligence, § 1714. OCCUPANCY, property acquired by, § 1000. title by, § 1006. OCCUl'ATiON. See Possession. ODD FELLOWS' ASSOCIATION may hold how much real estate, § 596. OFFER to contract, acceptance, how made, § 1582. to contract, what deemed, § 1584. must be absolute, § 1585. revolted, when, § 1586. how revolted, § 1587. of guaranty, not binding, § 2795. INDEX. 977 OFFER OF PERFORM A NCE passes title to personal property under executory agreement of sale, § 1141. extinguishes obligation, § 1485. extinguishes obligations for payment of mon- ey, when. § 1500. partial, § 14SG. by whom made, § 1487. to whom made, § 1488. where made, § 1489. when made, § 14G9, 1491. with compensation for delay, § 1492. to be in good faith, §1493. must be unconditional, § 1494. unconditional, except as to certain cases, § 1498. party must be able to perform, § 1495. receipt may be required upon, § 1499. objections to mode, when waived. § 1501. thing offered need not be produced, § 1496. thing offered to be kept separate, § 1497. thing offered, vests in creditor, § 1502. how to be kept by debtor. § 1503. effect of, on accessories of obligation, § 1504. what excuses, § 1511, effect of refusal to accept performance made before. § 1515. lien redeemed by, § 2905. ability and willingness, when equivalent to, § 3130. of concurrent conditions, when necessary, § 1439. when excused, § 1440. bv anv person exonerates suretv, § 2839. OFFICES AND OFFICERS, office, exercise of, not restrained by injunction. § 3423. record of conveyances by public officers, p. 766, § 2, Stat, corporation acting as surety, p. 725. OLOGRAPHIC WILL defined, § 1277. need not be in writing, § 127G. OPINION, information as to matters of, need not be given on insurance, § 2570. OPPRESSION, avoids contract, when, §§ 1567, 15G9. exemplary damages in case of. § 3294. interest as damages in case of, § 3288. 978 INDEX. OPTION, of owner in confusion of goods, as to value or tliino- itself, § 1032. selection between alternatives, §§ 1448-1450. as to place of offering- performance, § 1489. as to delivery, notice of. must be given, § 1756. bow waived, § 1750. of beneficiary, in breach of trust by trustee, § 2237. of payee, as to payment of negotiable instru- ment, § 3090. ORAL STATEMENTS. See Writings. transfer, when may be oral, § 1052. nuncupative will, § 1276. what contracts ma^^ be by parol, § 1622. negotiations superseded by writing. § 1625. contract in writing, altered by, § 1698. representation in insurance, § 2571. declarations of auctioneer cannot modify writ- ten conditions of sale, § 1795. ORPHANS. See Corporations, kinds of— Religious, etc. in asylums, apprenticed, how, § 265. corporations for maintaining asylums, § 286. adoption of child from orphan asylum with- out consent, § 224. ostensible agency. See Agency. OVERINSUFvANCE, return of premium on, how made, § 2620. effected by simultaneous policies, § 2621. by successive policies, § 2622. OWNERSHIP, defined, §654. Avhat subject of, § 655. wild animals, when subject of, § 656. all property has an owner, § 669. of what the State is owner, § 670. who may be owner, § 671. aliens inheriting, when must claim, § 672. modification of, § 678. absolute, § 679. qualified, § 680. several, § 681. joint, § 683. in partnership, § 684. in common, §§ 685, 686. conditions of, § 707. rights, ^^ 732. owner of thing, owns products, § 732. disposition of income during suspension of, § 733. INDEX. 979 OWNERSHIP— Continued, termination. § 7H1). suspension of absolute, of term of years. § 770. of I'ntiire estnte may use easement, when, § 808. owner of dominant tenement mav enforse ease- ment. § 809. owner of servient tenement may recover land subject to easement, § 810. ovrner of life estate, bow may be used, § 818. owner of estate for vears or at will, rights, §§ 819, 820. remedies of owner for injurv to inberitance, § 82G. owner of real property. ri.£:bts of. § 829. in renl nronertv riclits as to boundaries, §§ S.S0. 831. ' in real property, risrbts to lateral and sub- jncent siipnort. § 882. in real ])ropertv. ricrlits to trees. § 833. duties of. § 840. mutual obligation of coterminous owners. § 841, controversv as to, of ship, § 9()4. of product' of mind. §§980. 981. of trademarks and signs. § 991. good-will of business, § 992. title-deeds, § 994. fixtures, § 1013. alluvion, § 1014. laud formed by sudden removal of bank, § 101.5. islands in navigable streams, § 1016. islands in unnavigable streams, § 1017. islands formed b.y division of stream, § 1018. things formed by uniting property of several owners, §§ 102.j, 1030. thing formed by one with materials of an- other, §§ 1028. of thing formed by uniting materials. § 1029. for life or years, effect of conveyance by, in excess of estate, §§ 1108. water, how acquired, § 1410. thing obtained without consent to be restored, § 1712. notice to, of thing deposited, § 1826. delivery of deposit to joint, how made, § 1827. finder of lost property to give notice, § 1805. tinder of lost property may require proof of, § 1866. ;)80 INDEX. OWNERSHIP— Coutinned. of property found, may exonerate himself from claim of finder, § 1871. effect of insurance by part, § 2590. titlo. See Title. PARENT AND CHILD, term "children" includes what, § 14. unborn child, for what purpose deemed exist- ing, §29. abduction of parent or child, § 49. marriage between, incestuous, § 59. child of annulled marriage, how may suc- ceed, § 84. child of annulled marriage, custody, § 85. child of divorced parents, custody, § 138. child of divorced parents, support, § 139. liability of community property or support of child, § 143. child of divorced parents, legitimacy, §§ 145. parents, on separating, may malve provision for support of child, § 159. legitimacy of child born in wedlocli, § 193. legitimacy of child born out of wedlock, § 194. who may dispute legitimacy, § 195. obligation for support and education of child, § 190. custody of legitimate child, § 197. when neither parent has superior right to custody of child, § 198. when parent may bring action for exclusive control of child, § 199. custody of illegitimate child, § 200. allowance to parent for support and edu- cation of child, § 201. parent cannot control property of child, § 202. action for abuse of parental authority, § 203. when parental authority ceases, § 204. remedy when parent dies without providing for support of child, § 205. reciprocal duties of, as regards maintenance, §206. when iDarent liable for necessaries supplied child, § 207. when parent not liable for necessaries supplied child, § 208. husband not bound to support wife's child by former marriage, § 209. INDEX. 981 PARFNT AND CHILD— Continued. compensation and support of adnlt child, § 210, parent mar relinquish cnstodv and services of child, § 211. abandonment by parent, § 211, Tvasres of minor, § 212, ri.cht of parent as to residence of child, § 213, action for exclusive control of child, § 214. illesritimate child legitimated by marriage of parents, § 215. consent necessary to adoption of child, § 224. appointment of guardian, § 241. con'^ent to apprenticeship of child, § 265, risht of posthumous child to take property, § 698. birth of posthumous child defeats certain fu- ture interests, § 7.39, child born after T^^ill takes by succession, § 1306, grandchild of testator unprovided for by will, when succeeds, § 1307. share of child born after will, out of what property taken, § 1308. duress of child avoids contract of parent, when, §§ 1569, 1570. advancement to child during lifetime of tes- tator, unprovided for by will, § 1309. adoption of children. See Adoption. adoption of child from asylum, without con- sent, § 224. PAKOL. See Oral Statements, PARTIAL PERFORMANCE. See Performance; Specific Performance, effect of, § 1477, offer of, void, § 1486. when extinguishes obligation, § 1.524. makes oral contract of sale valid, when, § 1741. effect on guarantor of principal's accepting, § 2822, does not extinauish lien, § 2912. PARTIES. See Third Persons. consent necessary to marriage, § 55. to marriage, who, § 56. to marriage, who may not be, § 59. to contract, who. § 1556, to contract, when minors, etc., may be. § 1557. to contract, must be capable of identitication, § 1558. 982 INDEX. PARTIES— Continued. to loan, may agree to any rate of interest, § 1918. to loan, may agree to compound interest, § 1919. PARTNERSHIP, interest, what, § 684. defined, § 2395. partner may agree not to carry on same busi- ness in city or toAvn after dissolution, § 1675. joint use of ship does not create, § 2396. formation. § 2397. property defined. § 2401. property, partners' interest in, § 2402. property applied to partnership debts, § 2405. lien of partner on property, § 2405. property, Avhat presumed to be, § 2406. profits and losses, how divided, § 2403. when aareement for division of losses im- plied, §2404. obligations of parties, § 2410. parties must act in good faith, § 2411. to account, § 2412. to serve without compensation. § 2413. renunciation of, § 2417. effect of renunciation, § 2418. certificate and publication of name of partner, § 2466. General, defined, § 2424. i bound by decision of majority, § 2428. each partner agent, § 2429. authority of partners, § 2430. acts in bad faith do not bind, § 2431. profits of partners belong to, § 2435. partner not to engage in certain business, § 2436. partner may engage in what, § 2437. must account for certain profits, § 2438. liability to third persons, § 2442. liability for acts of copartner, § 2443. liability of one held out as, § 2444. who liable. § 2445. duration of. § 2449. total dissolution, § 2450. partial dissolution, § 2451. partner entitled to dissolution, § 2452. notice of termination, § 2453. notice of withdrawal, when sutHcieut to dissolve, § 2454. notice of change of name, § 2454. INDEX. 983 PARTNERSHIP— Continued. powers after dissolution, § 2458. liquidation, who may act in, § 2459. who may not act in, § 246U. powers o'f partners acting in, §§ 2461, 2462. use of fictitious name in, § 2466. certificate and publication of names of part- ners, § 2466. name of foreign, § 2467. name of foreign, bow continued, § 2468. certificates of use of foreign name to be filed, §§ 2469-2471. change of interest of, does not avoid insurance, § 2557. effect of insurance by one of several, § 2590. Mining, how formed, §§ 2511, 2512. rights of members, §§ 2-513-2515. how affected by purchase of interest, §§ 2516- 2518. majority of control, § 2520. Special, how formed, § 2477. of what to consist, § 2478. certificate must be made, § 2479. certificate, acknowledged and recorded, § 2480. liability of partners in making false certifi- cate. § 2481. affidavit as to sums contributed, § 2480. requisites for forming. § 2482. certificate published, § 2483. aflidavit of publication filed, § 2484. renewal of, § 2485. who may transact business, § 2489. special partner may investigate and advise, § 2490. may lend to and recover from, § 2491. general parties may sue and be sued alone, § 2492. special partner must not withdraw capital from. §§ 2493, 2495. may receive profits from, § 2494. transfer of. with intent to prefer creditors, void, §2496. | ^ liability of general partner in, § 2500. of special partner, S 2501. of special partner for unintentional act, § 2502. who may question existence of, § 2503. how made general. § 2507. Special, how new special partners admitted, § 2508. * PSt INDEX. PARTNERSHIP— Continued, dissolution. § 2509. name of special partner not used, when, § 2510. PASSENGERS, power of shipmaster over, § 2038. reasonable accommodation for, §§ 2103, 2180, 21S4. carrier must carry lug-gasre, § 2180. liability for luggage, § 2182. carrier must deliver luggage, § 2183. lien on luggage, § 2191. entitled to seat, § 2185. vrhen fare may be demanded, § 2187. may be ejected for nonpayment of fare, §§ 487, 2188. additional fare, when, § 2189. if ejected, fare cannot be collected. § 2190. accepting ticket assents to obligation therein, § 2176. damasres for refusing to receive, § 3315. PASTURE, right, a servitude, §801. PATENTS, recorded without acknowledgment. § 1160. 1»AYVX. See Pledge. PAWNPROKERS. See Pledge. PAYA'ENT, defired §1478, current money, borrower must repay in, § 1013. application of general, § 1479. application by debtor, § 1479. application by creditor. § 1479. application by law, §1479. obligation, how extinguished by offer of, § 1500. effect of offer of, on accessory of obligation, § 1504. of less than liquidated debt, § 1524. to agent, § 2335. when necessary to claim on indemnity, § 2778. of negotiable instrument, made to whom, § 3164. pavee of negotiable instrument must be ascer- tainable. §"^3089. payee's option as to class of, § 3090. of negotinble instrument payable to fictitious person, §3103. indorser, when liable for, to payee, § 3117. for honor, made when, § 3203. lor honor, how made, § 3205. unisJt be accepted, § 3204. INDEX. 98& PAYMENT— Continued. how made in case of foreiffn bill, § 3233. time and place, §§ 3099, 3100. as performance. See Performance. PENAL DAMAGES, for failure to quit, after notice, § 3.344. willful liolding over by tenant, § 3345. injuries to trees, etc., § 3346. injuries infiicted in duel. §§ 3347, 3348. PENAL LAW. specific relief not granted to en- force. § .5369. PENALTY. See Liquidated Damages. surety not liable beyond, § 2830. specific relief not granted to enforce, § 3369. contract with, may be specifically enforced, § 3389. failure of officers of mining corporation to post accounts, p. 810. § 3, Stat. PERFORMAXCE. See Partial Performance. when time for falls on holiday, § 11. of precedent conditions, § 1110. of condition precedent, when necessary, § 1439» when excused, § 1440. of obligation, § 1473. by one joint debtor extinguishes liability of all, § 1474. to one joint creditor, § 1475. in mode directed by creditor, sufficient, § 1476. partial, § 1477. when called payment, § 1478. application of general, § 1479. how excused, § 1511. effect of prevention, §§ 1512, 1514. refusal to accept, before offer, § 1515. of conditions of proposal, acceptance, § 1584. of contract, time of, § 1057. extension of time, how effected, § 1698. party offering performance to be able and will- ing, !> 1495. need not offer payment, when, § 3130. surety may compel, by principal. § 2846. when pledgee must demand, S 3001. offer of. See Offer of Performance. PERILS. See Insurance. PERILS OF THE SEA, defined, § 2199. PERISHABLE PROPERTY, sale of, for freight- age, when, § 2204. Civ. Code— S3. 986 INDEX. PERPETUITIES. See Accommodations; Aliena- tion; Trusts. PERSON, delined, § 14. PERSONAL PROPERTY. See Property. PERSONAL RELATIONS. See Relatives. PERSONAL REPRESENTATIVES. See Execu- tors. of minor, when may disaffirm contract, § 35. property of intestate passes to, § 1384. to distribute property, how, § 1384. possession of leii'acy obtainable only from, § 1363. inventory by legatee for life, when delivered to, § 1365. of seamen, Avhen entitled to wages, § 2062. by succession. See Succession. bv will. See Wills. PERSONAL RIGHTS, defined and regulated, § 43. PERSONS, defined, § 14. third persons. See Third Persons. PERSONS OF UNSOUND MIND, term includes what, § 14. custody, §32. cannot disaffirm contract for necessaries, § 36. when cannot contract, § 38. when may contract, § 39. contracts subject to rescission, § 39. powers of. when incapacity adjudged, § 40. when civilly liable for wrongs, § 41. not liable in exemplary damages, § 41. guardianship, § 258. See Insanity. PETITION of judgment creditor to have home- stead appraised, § 1245. such to be verified, § 1246. filed with county cleric, § 1247, copy served on claimant, § 1248. PEW, as easement. § 801. as servitude, § 802. PIONEER ASSOCIATION may hold how much real estate, § 596. PLACE of performance, § 1489. where goods sold, delivered, § 1755. where goods sold, delivered, option, § 1756. notice of option as to, § 1756. where thing borrowed, delivered, § 1896. where thing deposited, delivered, § 1824. INDEX. 987 PLACE— Continued. of payment need not be stated in negotiable instrument. § H09I. at which negotiable instrument presented, §§ 3131. 3180. 3211. at which bill of exchnnge payable, § 3212. at which protest made, § 3228. of payment of negotiable instrument, § 3099, 3100. PLEDGE. See Deposit; Depositary, defined, § 2986. what deemed. § 2987. lien dependent on possession, § 2988. covers increase of property, § 2989. lienor mav, § 2990. factor may not. § 2368. pledgor must deliver possession to pledgee, § 2988. when valid a^rainst real owner, § 2991. lender definedT § 2992. holder defined, «§ 2993. lender may withdraw, when, § 2994. holder, obligations, § 2995. holder must enforce all rights of pledgee, § 2996. pledgee liable as depositary for reward, § 2997. holder, gratuitous, liable as gratuitous depos- itary, § 2998. further, when required, § 2999. sale, when, § 3000. sale not until demand made, § 3001. notice of time and place necessary, § 3002. notice, when waived, § 3003. demand, waived, how, § 3004. auction, § 3005. pledgor may compel sale, § 3007. evidences of debt under sale, § 3006. pledgor entitled to surplus, § 3dOS. what pledgee may retain. § 3009. when pledgee may purchase, § 3010. foreclosure of, § 3011. mav be contained in negotiable instru- ment, § 3092. PLURAL XUMBEll includes singular, § 14. included in singular, § 14. POLICY OF INSriiAXCE. See Insurance. POSSESSION, summary proceedings for, § 794. owner of in-operty in adverse, may transfer his title, § 1047. 988 INDEX. POSSESSION— Continued. means of obtainin.a-. necessary to gift, § 1147. of legacies, 1iot\' obtained, § 1363. damages for unlawful, of real property, § 3334. covenant of, implied in hiring, §§ 1927, 1955. lease, when renewed by continued, § 1945. mortgagee not entitled to, § 2927. mortgagee, when may tal^e. of personal prop- erty, § 29G6. change of, necessary in pledge, § 2988. transferred for security deemed pledged, § 2987. bottomry independent of, § 3027. vendor's lien independent of, § 3046. seller of personal property, lien dependent on, § 3049. purchnser of real property, lien independent of, § 3050. lien for services dependent on, § 3051. factor's lien dependent on, § 3053. banker's lien dependent on, § 3054. shipmaster's lien independent of, § 3055. seaman's lien independent of, § 3056. officer's lien dependent on, § 3057. POSSIBLE, object of contract must be, § 1596. wliat is deemed, § 1597. POSSIBILITY, mere, cannot be transferred, § 1045. POSTHUMOUS CHILD, when talces by succes- sion, §§ 698, 1339. birth of, defeats certain future interests, § 739. deemed living at death of parent, § 1403. POST-OFFICES, act permitting mail carriers to ride free, p. 832, Stat. POWER OF ATTORNEY. See Agency. by married women, aclvnowledged, how, § 1094. instruments executed under, § 1095. how revoked, § 6216. duties of gratuitous employee accepting, § 1977. to execute mortgage, requisites, § 2933. married woman, power of attorney of, how executed, § 1094. POTrERS, minor cannot give, § 33. person of unsound mind cannot give, § 40. married women may be vested with, § 714. power to sell in mortgage a part of security and passes on assignment, § 858. INDEX. «S9 POWERS— Continued. execution of power to several, where some dead, § SCO. of revocation when deemed executed, §§ 1229, 1230. to devise, how executed by terms of will, § 1330. to executor, to appoint executor, void, § 1372. of revocation of trust, mav be reserved bv trustor, § 2280. of sale may be confeiTed by mortc:a,<^e, § 2932. PREFERENCE, common carrier of messages except to government, §§ 2207, 2208. giving to creditor, § 3432. PREMIUM. See Insurance. PRESCRIPTION, title by, § 1007. PRESI'MPTIOX. bv lapse of time in divorce, § 12.J. such rebutted, § 126. of residence in divorce, § 129. of legitimacy. § 193. of relinquishment of control of child, § 211. in case of collision from breach of rules, § 972. of time of delivery of grant, §1055. that fee-simple title passes. § 1105. that gift made in view of death. § 11.50. that obligation joint, and not several, § 1431. of intent to extinguish contract, when can- celed, § 1699. term of hiring servant, §§ 2010, 2011. undue influence on part of trustee. § 2235. certain property partnership. § 2406. repi'esentntion in insurance refers to time of completing contract, § 2577. insured has knowleclae of prior loss, § 2671. of actual loss of ship.^ § 2706. consideration in negotiable instrument, § 3104. bills of exchange dishonored. § 3133. creditor's retention of part performance not voluntary, § 1477. written instrument imports consideration. § 1614. origin of uncertainty in contcact, §§ 1649. 1654. depositary in fault in certain cases. § 1838. term for which real property hired, § 1943. hiring of real property renewed. § 1945. 990 INDEX. PRESUMPTION— Continued. certificate of sliiij-niaster in favor of sailor true, § 2039. mauagiuu- o^'uer of ship has no compen- sation, § 2072. damages caused by conversion, § 3336. adequacy of damage as relief, § 3387. in revising contract, that parties intended a fair agreement, § 3400. certain transfers, without possession, fraudu- lent, § 3440. of fraud, how repelled, § 3441. wife, presumption that property conveyed to, is separate property, § 164. community or separate property, presumption as to, §164. maiTied woman and others, presumption as to propertv convoyed to. § 164. PREVENTION OF PERFORMANCE, when ex- cuses performance, § 1511. rights of debtor in case of, §§ 1512, 1514. of reduction of contract to writing, § 1623. PREVENTIVE RELIEF, only in special eases, §§ 3275, 3366. how given, § 3368. bv iuiunction. See Injunction. PRICE defined, § 1721. on failure to pay, seller may resell or rescind, § 1749. when paid, § 1784. when agent may receive, §§ 2325, 2326. of real property, priority of mortgage for, § 2898. of real property, lien, § 3046. of personal property, lien, § 3049. PRINCIPAL, incident passes by transfer, §§ 1084, 3540. attorney in fact to subscribe name of, § 1095. factor must follow directions of, § 2027. consent necessary to release factor from lia- bility, §2030. in guaranty. See Guaranty. PRINCIPAL AND AGENT. See Agency. PRINCIPAL AND SURETY. See Surety. PRINTING, included in word "writing," § 14. PRIORITY of record priority of right, § 1214. of liens according to date, § 289T. mortgage for price of land has, § 2898. INDEX. 991 PRIORITY— Continued. lien upon sinale fund over lien upon several funds, § 2S99. of different employments, § 1988. of surety's property over principal's, § 2850. of bottomry liens, § 3029. bona fide purchaser or mortgagee and judg- ment creditor, prioritv between. § 1214. PRIVILEGED COMMUNICATIONS enumerated, §47. reports of public meeting are privileged com- munications, §§ 47, 48. PR0CEP:I)1NGS, c mmeu- ed prior to taking effect of Code not att'ected by it. § 6. PROCESS, defined. § 14. serving on foreian corporation, § 403. PRODUCTS OF LAND, owner entitled to. § 732. tenant for years, or at will, entitled to, § 819. PRODUCT OF MIND, subject of ownership. § 655. to what degree, § 980. joint authorship. § 981. transfer of, § 982. effect of publication, § 983. rights of subsequent authors, § 984. private writinas. § 985. PROFIT AND LOSS, shares of partners in, § 2403. PROFITS. See Community Property. by partner belongs to firm, when, § 2435. special partner may draw share of, § 2494. renunciation of future partnership exonerates partner, S 2417. insurable interest in, § 2664. measure of indemnity for loss of, under insur- ance, § 2738. loss of, under insurance, when presumed, § 2440. PROMLSE OF MARRIAGE, when neither bound, § G2. damages for breach of, § 3319. PROMISE. See Contracts. of adult to pay necessaries furnished parent, § 206. false, when fraudulent, §§ 1572, 1710. representation in insurance as to future, § 2574. to answer for third person, § 2794. to accept bill of exchange, when acceptance, § 3197. PROMISSORY NOTE. See Negotiable Instru- ments; Protest. 992 INDEX. PKOMISSORY NOTE— Continued, defined, § 3244. apparent maturity, § 3182. bill of exchange, when deemed, § 3245. bill of exchange, when converted into, § 3246. provisions applicable to, § 3247. delay in presentment, §3248. PROOF of consent to marriage, § 57. of illegitimacy, § 195. of nuncupative will, § 1289. of destruction or cancellation of will, § 1292. of ownership, finder may require, § 1866. of loss of freight, § 2202. of instruments for record. See Acli;nowledg- ments. of loss under insurance. See Insurance. PROPEIITY. See Products of Mind, the word "property" defined, § 14. of husband and wife, may be used to support children. § 143. of husband and wife, contracts concerning, § 158. of husband and wife, in joint tenancy, etc., § 161. of husband and wife, rights of, § 177. community, defined, § 164, 687. community, resort to for alimony, § 141. power of husband over, § 172. disposition of, on divorce, §§ 146-148. distribution on death of wife, § 1401. distribution on death of husband, § 1402. separate, may be used for support of child, § 143. of husband, when liable for alimony, § 141. separate, of husband, defined, § 163. of husband, when not liable for wife's debts, § 170. separate, of wife, defined, § 162. wife may dispose of without consent of hus- band. § 162. when liable for support of husband. § 176. not liable for husband's debts, § 171. of wife, husband cannot select homestead out of. § 1239. of child, parent no control over, § 202. when liable for parent's support, § 201. corporations may acquire, § 360. in general. § 654. INDEX. 993 PROPERTY— CoDtimied. nature of, § G54. ownership in, §§ 655, 678. either real or personal, § 657. real, § 658. personal, § 663. always has owner, § 669. whati^ owned by state, § 670. who may ovrn, § 671. aliens inheriting-, when must assert claim, § 672. interest in, § 678. interests in, §§ 701, 702. interests absolute, § 679. qualified, § 680. several, § 681. joint, § 683. partnership, § 684. in common. §§ 685, 686. present, § 689. future interests, § 690. perpetual interest, § 691. rights of posthumous children in, § 698. future interests pass by transfer, §§ 699, 700. future interests none, unless specified, § 703. future interests, how defeated, §§ 739, 740. when not defeated, §§ 741, 742. future interests. Tested, § 694. future interests, contingent, § 695. future interests, contingent, may be alterna- tive, § 696. future interests, contingent, not void because improbable, § 697. interests, perpetual, § 691. interest, limited, § 692. conditional ownership, § 707. restraints upon alienation, §§ 711, 715, 716. accumulations of income, § 722. income of, defined. § 748. what disposed of by will, i^§ 1270, 1274. acquisition of. §§ luuo, lOOi. Personal, define,!, §§ 14, 663. interests in, are estates, S 701. recording inventory of wife's, § 165. transferring contract for delivery of. § 1459. sale of, § 1739. seller's lien, § 3019. real property, when deemed, § 1338. 994 INDEX. PROPERTY— Continued. sale of unclaimed baggage for storage, charges, etc., §18G2. Real, term includes what, § 14. what contracts respecting, minor cannot make, § 33. defined, § 658. interests, how denominated, § 701. application of interests in, to personal prop- erty, § 702. limitation on leases of certain, §§ 717, 718. general provisions concerning, § 755. estates in, § 761. estates of inheritance in, § 762. fee-simple estates in, § 762. fee-tail abolished, § 763. contingent remainders, § 764. freehold, § 765. chattels real, or estates for years, § 765. chattel interests, or estates at will, § 765. estates for life of third person, § 766. future estates, § 767. estates in reversion, § 768. estates in remainder, § 769. creation of remainders, future and contingent, §773. limitation of successive estates for life, § 774. remainders on estate, §§ 775, 776. estate for life, remainder of, § 777. burdens and servitudes, §§ 801, 802. rights of owners, § 829. rights, in respect to water, §§ 818, 830. how used by tenant for life, § 818. how used by tenant for years or at will, §§ 819, 820. remedies of grantees for rents and reversions of, § 821. remedies of lessor against assigns of lessee, § 822. of lessee against assigns of lessor, § 823. on leases for life, for rent, § 824. rent, how recovered, §§ 824, 825. injury to inheritance in. § 826. boundaries by water, § 830. boundaries by ways, § 831. lateral and subjacent support, § 832. trees, § 833. obligations of owners, § 840. INDEX. 996 PROPERTY— Continued. tenant for life, duties, § 840. coterminous owner, rights, § 841. uses and trusts in, § 847. Avhen beneficiary has no interest in, § 863. when beneficiary may dispose of his interest, § 803. when beneficiary cannot dispose of his interest, § 8GT. powers in relation to, § 876. ownership of instruments affecting title, § 994. tenant may remove what fixtures, § 1019. words of inheritance not necessary to pass fee, § 1072. fee-simple title when presumed to pass, § 1105. subsequently acquired title passes by operation of law, § 1106. hen of seller, § 3040. lien of purchaser, § 3050. when deemed personal, after testator's death, § 1338. agreement for sale of, §§ 1731-1741. agreement for sale, what covenants required, § 1733. form of such covenants, § 1734. PROPOSAL, to contract, acceptance, § 1582. to contract, acceptance must be absolute, § 1585. what is deemed acceptance, § 1584. qualified acceptance, § 1585. revocation of, § 1586. revocation, how made, § 1587. PROTECTION, against restraint and injury, etc., § 43. to personal relations, § 49. what force used in seel^ing, § 50. PROTECTIVE ASSOCIATIONS, act for forma- tion of, § 2903. PROTESTS of bill of exchange. notice of dishonor of foreign bill only bv notice of, § 3225. by whom, § 3226. how made. § 3227. where, § 3228. when, § 3229. how excused, § 3230. 996 INDEX. PROTESTS— Continued notice of, liow given, 3231. effect of waiver, § 3232. PKO VISIONS, implied warranty on sale of, § 1775. riiOXY, voting by, at corporate meetings, § 312. PUBLIC, grant interpreted against grantee, § 1009. contracts interpreted against private party, § 1654. deceit upon, § 1711. nuisance, § 3480. PUBLICATION, libel by unprivileged, § 45. privileged, defined, § 47. of assessment notice, § 336. delinquent assessments, § 339. produce of mind, effect of, § 983. notice of dissolution of partnership, § 2453. of names of partners, when, § 2466. change of name of partnership, § 2469. certificate of special partnership, § 2483. aflidavit of, § 2484. notice of dissolution of special partnership, § 2509. PUBLIC ENEMY. See Enemy, Public. PUBLIC MEETINGS, reports of, are privileged communications, §§ 47, 48. PUFFING at auction a fraud, § 1797. PUKCHASE, buyer at auction may rescind, when pulfing practiced, § 1797. trustee cannot enforce claim adverse to trust, obtained by, § 2263. certificates of. See Certificates. at sales. See Sales. PURCHASE MONEY, priority of mortgage for, § 2898. lien for, § 3046. PURCHASER. See Sales. at auction sale of delinquent stock, § 342. when corporation may be, § 343. of franchise of corporations, powers and du- ties, §§ 389, 390. heirs of teuant for life, when take as, § 779. resulting trust not to prejudice, § 856. omission to declare trust in conveyance, § 8G9. grant, how far coucltisive, § 1107. instruments void against subsequent, § 1227. instruments not void against subsequent, § 1228. INDEX. 99T rURCHASER— Continued. grant, by person having power of revocation oi)erates as revocation, wlien, § 1229. rights of, from devisee, § 13G4. when sale of personal property void against, § 3440. •when mortgage of personal property void against subsequent, § 3440. pledgee cannot be, from pledgor, except by di- rect dealing, § 3010. of real property, lien, § 3050. transfers void against, § 3440. lien of seller or buyer not valid against subse- quent, § 3048. QUALITY, implied warranty of goods sold by sample, § 17G6. implied warranty on executory sale, § 17G7. implied warranty by manufacturer, §§ 1TG8- 1770. of goods inaccessible to buyer, § 1771. general warranty of, § 1773. domestic provisions, § 1776. damaces for breach of warranty of, § 3313. QUANTITY, implied M'arranty as to, § 1773. QUESTIONS OF LAW AND FACT, actual fraud, a (luestion of fact, § 1574. QUIET ENJOYMENT, covenant runs with land. § 1463. executory contract of sale binds seller to insert covenant of, § 1733 implied in hiring, §§ 1927, 1955. RAILROADS, may borrow money and issue bonds, § 4.56. act to enable completion of roads, p. 819, Stat, foreign may operate in this State, p. 820, Stat, corporations to operate roads, when, p. 821, Stat, rates of fare on street, p. 829, Stat, time for commencement and completion of work, § 502. time for completion, extension of, § 502. act limiting time within which extension to railroad may be granted, p. 831, Stat, act authorizing railroad to use electricity or steam, p. 830, Stat. act providing for sale of franchises to highest bidder, p. 812-814, Stat. Civ. Code— 84. 998 INDEX. RAILROADS— Continued. act permitting mail carriers to ride free, p. 832, Stat, act allowing all railway corporations to do bus- iness on equal terms, p. 820, Stat, act limiting time within which franchise may be granted, p. 831, Stat, act validating grant of franchises to propel cars by electricity, p. 818, § 1, Stat, authorizing railroad to lease its road to an- other corporation, p. 820, § 2, Stat, act compelling railroads to operate roads, p. 821. Stat, railroad, when deemed in operation, p. 821, § 1, Stat, prevention of operation, p. 822, § 2, Stat, operation of roads over certain elevation, p. 821. Stat. RAILROAD COMMISSIONERS, act creating, p. 823, Stat, board, what constitutes, p. 823, § 1, Stat. sessions of board, p. 825, § 5, Stat, secretary and bailiff, powers of, p. 826, § 8, Stat, secretary and bailiff, salaries of, p. 829, § 15, Stat, expenses and salaries, p. 823, § 2, p. 829, § 15, Stat, location of office, p. 825, § 5,Stat. commissions, duty to examine as to Avhether income sufficient to operate, p. 822, § 3 Stat. act to organize and define powers of board, p. 823. Stat. extra counsel, power to hire, p. 824, § 4, Stat. rates, p. 827. § 11, Stat, power to carry acts into effect, p. 828, § 12, Stat, process and subpoenas, issuance of, p. 826, § 7, Stat, suit upon decision, when may be brought, p. 826, 5 10, Stat, transportation companies, definition of, p. 828, § 14. Stat, companies, p. 828, § 14, Stat, complaints and decisions, p. 826, § 9, Stat, demand from transportation commissioner, p. 828, 5 13, Stat, duty of Attorney General and District Attor- ney, p. 824, § 4. INDEX. 999 RAILROAD COMMISSIONERS— Continued, free passes, p. 824, § 3. seal. p. 825. § 6. Stat. RAILROAD CORPORATIONS. See Corpora- tions. RANSOM of ship and cargo. § 2380. RATE OF INTEREST, street railroad, § 501. supervisors to fix water, for irrigation, § 1422. annual. § 191G. legal, §§ 1917, 1918. on judgments. § 1920. bottomry, § 3022. respondentia, § 3039. RATIFICATION of voidable contract, vrhen void^ §§ 1588. 2310. partial, when total, § 2311. when void, § 2.312. to prejudice of third person forbidden, § 2313. rescission, § 2314. REAL ESTATE, defined. S 14. brokers' authority. § 1624. as property. See Property. REASON ceasing, rule should cease. § 3510. being the same, rule the same. § 3511. RECEIPTS, partv performing obligation entitled to written, § 1499. In policy of insurance. § 2598. warehouse and wharfingers, act concerning, § 1855- RECEIVER to enforce alimony, § 140. RECONVEYANCE, cancellation or redelivery of grant, no, § 1058. by grantee on nonperformance of conditions subsequent. § 1109. RECORDER, certificate of marriage filed with, § 74. declaration of marriage filed with, § 77. inventory of wife's property filed with, § 165. to keep books for recording semi-annual state-^ ments of banks. § 321. fees for recording bank statements, § 321. selection of right of way by corporation trans- mitted to, § 371. city or county, may take acknowledgment of instruments, § 1181. instruments recorded in office of county, § 1169. duties of county. § 1172. 1000 INDEX. RECORDER— Continued. certitieate of formation of special partnership filed with, § 2480. notice of di?:solution of special partnership filed with, § 2509. entry of satisfaction of mortgage made in pres- ence of, § 2940. personal mortgaj?e recorded with what, § 2959. RECORDING, marriage certificate, § 74. marriage declaration, § 75. inventory of wife's separate property, § 165. effect of, § 166. marriaue settlements, § 179. effect of, § 180. by-laws of corporation, § 304. of semi-annual statements of banks, § 321. of conveyances made by public officers, § 1095. what subject to, § 1158. judgments subject to without acknowledging, §§ 1159, 1204. letters patent without acknowledgment, § 1160. prerequisites, § 1161. how effected, § 1102. transfers in trust for benefit of creditors, § 1164. in what oflice made, § 1169. when complete, § 1170. hooks, § 1171. duties of otficer, § 1172. transfers of ships, § 1173. legality of prior, not affected, § 1205. as evidence, § 1206. as notice, § 1207. where and to whom notice, § 1213. priority of. establishes priority of right, § 1214. of revocation of power, § 1216. effect of Avant of, § 1217. instruments affecting homesteads, § 1244. homestead declaration, §§ 1264, 1268. notice of appropriation of water, §§ 1415. certificate of formation- of special partnership, § 2480. renewal of special partnership, § 2485. dissolution of special partnership, § 2509. power of attorney to execute mortgage, § 2933. assignment of mortgage, § 2934. effect, § 2935. satisfaction of mortgage, §§ 2940, 2941. INDEX. 1001 RECORDING— ContimiPd. mortgages in jreneral, §§ 2952, 2903. mort,2:a,2:e of personal property, § 2959. morteage of property of common carrier, § 29()1. single mortgages of personal property, § 29G2. mortgage of property in transit, § 29(30. bona fide purchaser of mortgagee, rights as against judgment creditor, § 1214. recra-d of conveyances bv persons whose names changed, p. 766, § 3, Stat, record of conveyances by public officers, p. 765, § 2, Stat, affidavits sliowiug work or posting of notices on miuinu- claims may be recorded. § 1159. act validating record of notices of location of mining claims, § 1159. instruments affectinc: realty recorded before 1897 as notice, § 1207. certified copy of recorded instruments may be recorded in other counties, § 1213. eertitied copv, record of is notice, § 1213. RECORDS of bank statements, § 321. RECRIMINATION. See Divorce. REDELIVERY of grant does not retransfer, § 1058. REDEMPTION of franchise by corporation. § 392. of person having interest in property subject to lien, § 2903. of inferior lienor, § 2904. how made, § 2905. contract in restraint of, void, § 2889. riglit of foreclosed, §§ 2931, 2907. RE-ENTRY right, Avhen and how exercised, §§ 790, 791. right, transferable, § 1040. REFEREE, testimony in divorce cases before, § 130. REFORMATION OF CONTRACT. See Revision. REGISTRATION. See Recording. REINSURANCE defined, § 2040. what communicated on. § 2047. presumed against liability, § 2048. oriiiinal insured no interest in, § 2049. RELATIONSHIP. See Kindred Relatives. husband and wife cannot impair legal, § 159. degrees, how computed, §§ lo89-lo93. 1002 INDEX. KELATIONSHIP— Continued. of half-blood, ri.c;ht to succeed, § 1394. succession throuiih illej2:itimate, when. 1388. KELATIV^ES, right of defense of, §§ 43, 50. may protect child from parental abuse, § 203. legacies to, when chargeable with debts of tes- tator. § 13()1. when illegitimate, taken by succession, § 1388. of half-blood succeed alike with whole blood, § 1394. alienage of, does not affect right of succession, § 1404. RELEASE of future interests, § G99. of debtor by substitution, § 1531. by creditor, how made, § 1541. effect of general, § 1542. of joint debtors, § 1543. RELIEF. See Damages; Injunctions. in general, § 3274. compensatory, § 3274. specific, and preventive, limited to special cases, § 33G9. from forfeiture, § 3369. RELIGIOUS, SOCIAL AND BENEVOLENT CORrORATlONS. See Corporations, Kinds of. marriage between persons of particular reli- gious belief, how solemnized, § 79i/>. RE:mAINDEKS. See Reversion. defined, § 7(39. certain, valid, § 7G4. contingent, on prior remainder in fee, § 772. when created, § 7<3. upon successive estates for life, § 775. on term of years, § 77G. for life upon term of years, § 777. upon contingency, § 778. what title vests under, § 779. construction, § 780. owner may sue for injury to inheritance, § 828. death of devisee before testator, § 1344. REMOVAL, of guardian, § 253. officer of corporation, § 310. thing bought, after delivery, § 1784, of trustee for holding adverse interests, § 2232. of principal in guaranty from State, § 2802. of mortgaged personal property, §§ 29G5, 2966. INDEX. 1008 RENT. See Landlord and Tenant. riffht of taking, as servitude, § 802. remedies for recovery of, § 821. remedies by assiirnees, §§ 822, 823. under lease for life, § 824. dependent on life, when recoverable. § 825. payment to grantor, when binding on grantee, § 1111. covenant for payment rnns witli land. § 14G3. term of hiring indicated by, § 1944. acceptance, when renewal of lease, § 1945. when payable, § 1947. forfeited" bv lettini? room in parts, § 1950. RENUNCIATION, of partnership exonerates part- ner, when. § 2417. of partnership, effect, § 2418. REPAIR, owner of estate for life to, § 840. tenant for life to, fence, § 840. coterminous owners to, fence, § 841. owner for voyage to, ship, § 9()."). borrower, when to repair, § 1889. hirer to repair, when, § 1929. landlord, when, § 1941. tenant, at expense of landlord, when, § 1942. lettpr of personal property, § 1955. hirer of personal propertv, at expense of letter, § 1956. ship-master. § 2376. REPEAL, of former statutes, § 20. by implication, § 5, note. REPORTS, official proceedings, privileged, § 47. of railroad companies, § 491. appraisers of homestead, § 1252. REPRESENTATION, who succeed by right of, § 1403. authority of agent to make, § 2319. in insurance. See Insurance. RESCISSION, by minor, § 35. by person not entirely without understanding, § 39. of novation, § 1533. third person may enforce contract before, 8 1559. consent not free, subject to, § 1506. extinguishes contract, § 1688. of contract, in wliat cases allowed, § 1689. not barred by stipulation. § 1690. how effected, § 1691. of sale for nonpayment of price, § 1749. 1004 INDEX. KESCISSION— Continnefl. by buyer, if seller refuses inspection, § 1785, by bnyer, on brench of Trarranty, § 1786. by bnyer at auction, when, § 1797. of ratification, § 2314. of insurance for concealment, when, §§ 2562, 2569. of insurance for false representation, when, § 2580. of insurance, when exercised, § 2.583. for violation of warranty, etc., § 2608. for fraudulent valuation, § 2736. for alteration increasing risk, § 2753. of alteration of obligation does not restore guaranty, § 2821. stoppage in transit is not, § 3080. of contracts, when adjudged, § 3406. for mistake, § 3407. requirements on adjudging, § 3408. RESIDENCE, husband to select, §§ 103, 156. if husband selects unfit, wife not bound, § 104. guardian to select, § 248. requisites in regard to, in divorce, § 128. proof of actual, required in divorce, § 129. right of parent as regards, of child, § 213. RESIDUE, remainder on, § 775 of testator's estate, devise of, § 1832. of testator's estate, bequest of, § 1333. RESrONDENTIA. See Bottomry. defined, § 3036. owner may hypothecate by, § 3037. master may hypothecate, when, § 3038. law of bottomry applicable to, § 3039. obligation imposed upon shipowner by, § 3040. RESTORATION, necessary on rescission of con- tract, § 1691. of thing wrongfully obtained, §§ 1712, 1713. of deposit, terminates duties of depositary, § 1847. of thing found, § 1871. lien extinguished by, § 2913. RESTRAINT, right of protection from bodily, § 43. of marriage, when void, §§ 710, 1676. of alienation, when void, §§ 711, 716. i of trade, contract when void, § 1673. -; of trade, on sale of goodwill, § 1674. of trade, on dissolution of partnership, § 1675. INDEX. 1005 RESTRAINT- Continued. of ricrlit of redemption from lien, not allowed, § 2889. RETROACTIVE, Codes not. §§ 3, 6. RETURN, of appraisers of homestead, § 1252. when excused. § 2G18. of preminiii of insurance, when, §§ 2617, 2621. REVERSION. See Remainder. of land granted to corporations, § 477. estate in, defined, § 768. owner may sue for injury to inheritance, § 826. REVISION, of contracts, when may be revived, § 8309. presumption as to intent of parties, § 3400. principles of, § 3401. specific enforcement after, § 3402. REVOCATION, consent to separation subject to, § 101. of condonation, § 121. of gift in view of death, § 1151. of power of attorney, § 1216. power of, M'hen deemed executed, §§ 1229, 1230. of propos.nl to contract, § 1586. of proposal to contract, when, § 1587. of trust, § 2280. of continuing m of wills. See Wills. RIGHT OF WAY, granted to corporations, § 474. limitation, § 475. selection, how certified to, § 478. as easement, § 801. as servitude, § 802. RIGHTS, accrued prior to Code not affected, § 620. person of unsound mind cannot waive, § 40. minor may enforce by civil action, § 42. of personal relation, § 49. subject of ownership, § 655. in water, § 1410. may be waived, § 3513. must not be used injuriously, § 3514. RIOT, involuntary deposit in case of, § 1815. duty of depositary, § 1816. RISKS, insured against, to be stated, § 2587. altering thing covered by lire insurance, in- creasing. § 2753. altering thing not increasing, § 2754. what insured against in marine insurance, § 2655. 1006 INDEX. RISKS— Continned. stipulation of personal liability under bottomry independent of. void, § 3024. RIVERS, navigable. See Water. SAILORS. See Seamen. SALE. See Price; Purchaser; Transfer, stock for delinquent assessments. § 341. when corporations may purchase stock, § 343. franchise of corporations under executions, § 388. sale of franchise not to affect powers of, of cor- porations, § 391. transfer of personal property by, § 1136. title to personal property passes by, §§ 1140, 1142. of homestead on execution, §§ 1254, 1256. seller of goodwill may agree not to carry on j?ame business, § 1674. defined, § 1721. subject of. must be what, § 1722. sellor in executory contract to insert certain covenants, § 1734. rights and obligations of seller, § 1748. seller as depositary before delivery. § 1748. in respect to resale or rescission, § 1749. when buyer to pay price. § 1784. when buyer to remove thing, § 1784. right of buyer to inspect warranted goods, § 1785. right of buyer on breach of warranty, § 1786. of deposit in dansrer of perishing, § 1837. of thing found, §§ 1809, 1870. by factor for reimbursement, § 2027. on credit by factor, § 2028. liability of factor upon, under guaranty com- mission, § 2029. of perishable property for freightage, § 2204. of delinquent mining property, § 2520. extinction of lien by. § 2910. power conferred by mortgage, § 2926. power under mortgage, how executed, § 2927. of pledged property by pledaee, §§ 3000-3002. of pledged property by auction, § 3005. on demand of pledgor, § 3007, surplus, to whom paid. S§ 3008, 3009. judicial, of pledged property, § 3011. of real property, lien of vendor, § 3047. when deemed waived, § 3047. INDEX. 1007 SALE— Continued. extent of lien of vendor of real property, § 3049. seller of personal property, § 3049. rescission of, not affected bj'" stoppage in tran- sit. § 3080. Ascreement for. defined, § 1726. to sell, § 1727. to buy, § 1728. To sell and buy. § 1729. ^vhat subject of, § 1730. of real property, §§ 1731. 1733, 1734, 1741. of personal property, § 1739. to be in writing or partially performed, § 1741. not revocation of will. § 1301. By auction defined, § 1792. when complete. § 1793. withdrawal of bid, § 1794. written conditions not to be modified, § 1795. when absolute, § 179G. by-bidding a fraud, § 1797. auctioneer's memorandum binding, § 1798. authority of auctioneer from seller, § 2362. Delivery on demand, § 1753. where made, § 1754. expense of transportation, § 1755. when made, § 1758. notice of election, § 1756. must follow directions of buyer, § 1757. Delivery, of personal property, § 1759. change of possession not necessary on sale of wine in winery, § 3440. transfer of wines in winery, how made, § 3440. Warranty defined, § 1763. not implied, § 1704. of title to personal property, § 1765. on sale by sample, § 17G(). of merchandise not in existence, § 1768. of manufacture against latent defects, § 1769. of manufacture for particular purposes, § 1770. when thing cannot be examined by buyer, § 1771. of trademarks, § 1772. other marlvs, § 1773. on sale of written instrument, § 1774. of provisions for domestic use, § 1775. on sale ol goodwill, § 1776. 1008 INDEX. SALE— Continned. on .indicia! sale, § 1777. effect of .c:eneral warranty, § 1778. SALVAGE, in case of captnre, deduction from sea- men's T^^ases for, § 20G(). who entitled to, §§ 2079. 2725. SA^rPLE, sales by, § 1766. SATISP\1CTI0N. See Accord. of .indsment a.a-aiust corporations, § 388. of 'jiid2:ment against homestead, 1241. of iesacies and gifts, § 1367. what operates as, §§ 1523. 1524. of recorded mortgage, §§ 2938. 2941. penalty for refusing, of mortcrage. § 2941. SAVINGS AND LOAN CORPORATIONS. See Corporations, Kinds of. SAVINGS BANK, deposits in, may be collected by surviving husband, or wife, when, § 579. SCHOOLS. See Colleges. SEA, perils of, defined, § 2199. carrier not liable for damages caused by perils of, § 2107. SEAL of officer taking proof or acknowledgment, § 1193. corporate, or official, how affixed, § 1628. private, abolished, § 1629. SEAMEN. See Ships and Shipping. may make nuncupative will, Avhen, § 1289. power of shipmaster over, § 2037. defined, § 2049. how engaged, § 2050. how discharged, § 2050. cannot be compelled to ship on unseaworthy vessel, § 2051. wages of, not lost by agreement, § 2051. restrictions on contracts M'ith, § 2053. wages, when depend on freightage, § 2054. wages, when begin, § 2055. where voyage broken up, § 2056. when wrongfully discharged, 2057. wages, when do not depend on freightage, § not lost by wreck, § 2058. when prevented from rendering service, § 2060. must be provided for in sickness, § 2061. when personal representatives take, § 2062. when forfeited, § 2063. liability of, for injury to ship, § 2063. INDEX. 1009 SEAMEN— Continued. must not ship goods on own account, § 2064. lieu of, § 3056. SEAWORTHINESS, seamen not bound to sail when reasonable doubt as to, § 2051. defined, § 26S2. implied warranty of, in insurance. § 2681. at what time must exist, under insurance, § 2683. what required to constitute, § 2684. degrees of, during voyage, § 26S5. for purpose of insuring cargo, § 2687. SECRETARY OF STATE, proceedings for contin- uance of corporations, § 287. prerequisites before issuing certificate of incor- poration, § 295. when must issue certificate of incorporation, § 296. SECURITY for alimony, § 140. power to sell in mortgage deemed part of, § 858. contracts of, when called bail, § 2780. held by creditor or cosurety, surety entitled to benefit of, § 2849. held by surety, creditor entitled to benefit of, § 2854. by way of lien (see also Lien), § 2872. for what lien may be, § 2884. for obligatioti, does not prevent direct enforce- ment, § 2890. of mortgagee not impaired by person bound, § 2929. by way of pledge. See Pledge. for third person, pledge as, § 2992. by way of bottomry (see also Bottomry), § 3017. by way of respondentia (see also Respondentia) § 3U36. indorser having, not entitled to notice of dis- honor, § 3157. by assignee, for benefit of creditors, § 3467. SEDUCTION, protection from, § 49. damages for, § 3339. SELECTION. See Option. SELF-DEFENSE, right of, § 43. SELLER. See Sales. SEPARATION, by consent, not desertion, § 99. and intent to desert, not always coexist, § 100. consent to, revocable, § 101. Civ. Code— b5. 1010 IXDEX. SEPARATION— Continued. husband and wile may asjree to immediate, § 159. mutnal oons-ent sufficient consideration, § 160. custody of child in case of. § 214. SERYANT. See :\Inster and Servant. SERVICES. See Waces. of leiiitimate unmarried minor, father entitled to. § 197. of illegitimate unmarried minor, mother en- titled to, § 200. parent may relinquish, of child, § 211. when apprentice mav recover for, § 276. of depositary, § 1839. employee in .uratuitous duties, § 1975. gratuitous, when relin(iuished, § 1976. without employment, §§ 2028, 2079. of carrier, other than carriage, § 2203. contract for, cannot be specifically enforced, § 3390. SERVIENT TENEMENT. See Easements and Servitudes. SERVITUDES. See Easements and Servitudes. SEVERAL defined, § 14. ownership, § 081. SHERIFFS. See Assignments for the Benefit of Creditors, § 3449. SHIPS AND SHIPPING. See Average; Bottom- ry; Navigation; Carriage; Common Carri- ers; Respondentia; Seamen; Seaworthiness; Wrecl^s. seamen. See Seamen, defined, § 960. appurtenances of, § 961. foreign, § 962. domestic, § 9(53. controversy between part owners, § 964. who responsible for repair and supplies, § 965. registry, enrollment, and license, § 966. collision from breach of rules, § 971. losses caused by collision, how apportioned, § 973. transfer of interest in, in writing, § 1135. recording transfer, where provided for, § 1173. charter-party defined and regulated, § 1959. when not seaworthy, seamen need not sail, § 2051. INDEX. 1011 SHIPS AND SHIPPIX(^— Continnetl. ship-master may procure repairs and supplies, ij 2376. ship-master may hypothecate, when, § 2377. ship-master may sell. T^'hen, § 2378. abandonment terminates master's power, § 2381. ship-master personally liable for what con- tracts. § 2382. liability ot master for neslisrence of persons employed, § 2383. obligation of ship-owner to owner of cargo. § 2385. part owner not partner, § 2396. seaworthiness defined, § 2682. . laws of mortgage do not apply to. § 2978. hypothecation under bottomry, § 3017. lien on, § 3069. mates. See Mates, act to protect buoys and beacons. See Penal Code, Appendix, title Buoys and Beacons. Cargo, sacrifice for safety of. § 2148. sacrifice borne ratably, § 2151. jettison. See Jettison, how yalued on general average. § 2153. ship-master agent for owners, § 2375. obligation of owner to owner of, § 2385. ship's manager not power to purchase, § 2389. seaworthiness for purpose of insuring. § 2687. insurance on, when yoyage broken up, § 2707. ship-master may sell, when, § 2379. cariro, ship-master may hypothecate, when, §§ 2377, 3038. hy])othecation under respondentia, §§ 3036- 3038. owner entitled to repayment from ship-owner under respondentia, § 3040. insurance. See Insurance, freight. See Freight jmd Freightage. Manager, defined, § 20 <0. duties, § 2071. not entitled to compensation, when, § 2072. powers, § 2388. limitation of powers, § 2389. Master, may be charterer, § 1959. how appointed, § 2034. must be on board, when, § 2035. 1012 INDEX. SHIPS AND SHIPPING— Continued. ' ""=^'^^^"=""^' Master— take pilot, when, § 2036. power over seamen, § 2037. power over passengers, § 2038. power to impress private stores, § 2039. must not abandon sliip witliout advice, § 204(>. duties on abandoning ship, § 2041. when not trade on own account, § 2042. care and diligence, § 2043. authority to malve jettison, § 2150. general agent for owner, § 2373. may borrow on credit of owner, § 2374. on behalf of owner of cargo, § 2375. power to malve contracts, § 2376. to hypothecate, § 2377. to sell ship, § 2378. to sell cargo, § 2379. authority to ransom ship, § 2380. power terminates on abandonment of ship, § 2381. personal liability for contract, § 2382. liability for acts of persons employed, § 2383. responsibility for negligence of pilot, § 2384. when may hypothecate ship under bottomry, S§ 3019, 3020. when may hypothecate freightage under bot- tomry, § 3021. lien of, § 3055. mates, See Mates. Owners, controversy between, how determined, § 962. master appointed by, § 2035. when manager, called what, § 2070. when manager, not entitled to compensation, § 2072. ship-master general agent for, § 2373. ship-master may borrow on credit of, § 2374. contracts of ship-master bind, § 2376. ship-master may sell ship without instructions, when, § 2378. contract to ransom ship, by ship-master, binds, § 2380. power to bind, ceases, when, § 2381. responsible for negligence of ship, when, § 2384. obligation of, to owner of cargo, § 2385. ship's manager cannot bind, to insurance, § 2389. has insurable interest, § 2659. INDEX. 1013 SHIPS AND SHIPPING— Continued. Owners— value of insurable interest, § 2661. insurable interest in expected freight, § 2662, may hypothecate ship upon bottomry, >? 3018. when repjiy owner of cargo under responden- tia, § 3040. Voyage, owner of ship for, liable for repairs and supplies, § 965. power of ship-master during, §§ 2037, 2040. insured, how determined, § 2692. deviation, defined, § 2693. when proper, § 2695. when improper, § 2696. effect of on insurance, § 2697. SIGNATURE defined, § 14. of officer taking acknowledgment, § 1193. in indorsement of negotiable instrument, §§ 3109, 3110. SINGULAR NUMBER, includes plural, § 14. SKILL. See Care. injury arising from want of ordinary, § 1714. borrower for use must exercise what. § 1888. employee must use reasonable, § 1983. employee must use all he possesses, § 1984. voluntary depositary must use reasonable, § 2078. carrier of persons for reward must use reason- able, § 2100. SLANDER, defamation effected by, § 44. defined, § 46. SOCIETIES. See Corporations. SOLDIER may make nuncupative will, § 1289. SOLEMNIZATION OF MARRIAGE. See Mar- riage. SPECIFIC PERFORMANCE of obligations com- pelled when, § 3384. not unless mutual, 3386. presumption in favor of, as to real property, § 3387. presumption against, as to personal property, § 8388. enforced in favor of party not bound, when. § 3388. enforced, notwithstanding penalty in contract, § 3389. not enforced for personal service. § 3390. contract to accept arbitration, § 3390. act which party cannot perform, § 3390, 1014 INDEX. SPECIFIC PERFORMANCE— Continued. agreement to prccnre act of third person, § 3390. indefinite contract, § 3390. party not having' adequate consideration, § 3391. party as to wliom contract is not fair, § 3391. party not freely consenting, § 3391. party in default, § 3392. of agreement to buy. not enforced when title doubtful, § 3394. persons claiming under party bound to per- form, § 3395. may be enforced after revision, § 3402. SPECIFIC liELIEF, only in special cases, § 3366. hoAy given, § 3367. not given to enforce penalties, § 3369. SPEED, carrier must travel at what rate, § 2104. SPORTS, rights of conducting lawful, on land as easement, § 801. STATEMENT OF BANKS, what to be published and recorded, § 321. STATFTE OF FRAUDS. See Oral Statements. what couti'acts to be in writing, § 1624. sales of personalty, § 1739. sale of realty, § 1741. agent's authority, when to be in writing, § 2309. STATUTE OF LIMITATIONS. See Limitations. STATUTES in derogation of common law, how construed, § 4. effect of Code on, §§5, 20. minor cannot disaffirm contract made by au- thority of special, § 37. insane person cannot make contract without express authority of, § 38. righis granted by, subject of ownership, § 655. STOCK, amount subscribed before incorporating, § 293. oath of officer to subscription of, § 295. holder of, defined, § 298. entitled to how many votes, § 301. majority necessary to adoption of by-laws, § majority necessary to election, § 307. two-thirds necessary to amend by-laws, § 304. two-thirds necessary to removal of officers. § 310. INDEX. 1015 STOCK— Coiitiiiiicrl. maiority constitutes qiiornm. § 812. dividends not ninde from capital. § 309. debts not beyond subscribed. § 309. capital not increased or diminished, except, §§ 309, 3r>9. on dissolution, divided. § 309. boolv and notice of, hy banlcs. § 321. certificates of, bow issued, § 323. transfer of, § 324. transfer of, held by married women, § 325. transfer of, of nonresidents, § 326. hypothecated, how voted, § 322. sale of delinquent, § 341. jurisdiction over, § 340. may buy its own. when, § 343. disposition of, where corporation purchaser, § 344. action for recovery of, sold for delinquent as- sessments, § 347. STOCKHOLI^EKS. See Corporations. STOPPAGE IN TliAXSIT, who may exercise the right, § 3070. transit when ended, § 3078. how effected, § 3079. does not rescind sale, § 3080. STOPtAGE. See Deposit; Warehousemen. defined, § 1851. degree of care required, § 1852. compensation, § 1853. how terminated, §§ 1854, 1855. sale of unclaimed baggage for, § 1802. finder may put thing on, § 1808. when carrier may place freight on, § 2121. STKAXGEK, attornment to, void, § 1948. as third person. See Third Person. ST1^EAMS. See Water. ownership of land newly formed by, § 1014. land newly formed in navigable, § 1010. land newly formed in uunavigable, § 1017. islands formed bv division ot, § 1018. STKEAMS, XA\TGABEE. See Watt'r. STREET KAILKOAD COlil'OKATlONS. See Corporaiions. SUB AGENT. See Agency. not responsible to principal, § 2022. when agent responsible for, § 2350. when not, § 2351. 1016 INDEX. SUBPOENA, acknowledgment by officer, § 1201. SUBROGATION, right of inferior lienor to, § 2204. SUBSEQUENTLY ACQUIRED TITLE passes by operation of law, § 1106. passes by will, § 1312. SUBSTITUTES, responsibility of employee for,. § 1989. SUCCESSION, rights of children of annulled mar> riage, § 84. alien, taking by, when to assert claim, § 672. posthumous children, § 698. future interest, § 699. property acquired by, § 1000. words of, unnecessary to pass fee, § 1072. liability of persons acquiring property by, § 1115. child of testator born after will takes by, § 1300. child of testator unprovided for by will takes by, when, § 1307. property of intestate, how disposed of, § 1358. defined, § 1383. real and personal property pass by, § 1384. to whom property passes by, § 1384. distribution of property received by, § 1386. illegitimate child takes what, § 1387. mother of illegitimate child to take by, § 1388. computation of degrees in determining, §§ 1389, 1393. exclusion from by advancement, § 1395. relatives of half-blood, when take, § 1394. husband takes common property on death of wife, § 1401. husband and wife, divorced and in fault, not to take by, § 1401. wife takes one-half common property on death of husband, § 1402. by representation, § 1403. aliens may take by, § 1404. w^hen state takes by, §§ 1405, 1406. w^hen State takes by, subject to charges, § 1407» persons taking by, liable for debts of decedent, § 1408. change of interest by, does not affect insur- ance, § 1556. See Successors. SUCCESSORS, of decedent may dispute legiti- macy of issue, § 195. liable for obligations of decedent, § 1403. INDEX. 1017 SUCCESSORS— Contiuued. in e(iiial degree take equally, § 1394. of employer, when must compensate employee, § 1998. duty of trustee as to appointment of, § 2260. SUGGESTIONS, false, when fraudulent, §§ 1572, 1710. SUMMONS, foreign corporations, designation of person upon whom process may be served, p. 7G4, Stat. SUNDAY, a holiday, §§ 7, 8. SUPERFLUITY, does not vitiate, § 3537. SUPERVISORS, action in behalf of child, for pa- rental abuse, § 203. provision for support of orphan out of property of intestate parent, § 205. consent to apprenticeship, when, § 265. may bind out apprentices, § 268. act authorizing supervisors to fix rates of wa- ter sold for irrigation, p. 843, § 2, Stat. act limiting time witliin which extension to railroad may be granted, p. 831, Stat. misdemeanor, supervisor violating statute as to sale of franchise, p. 814, § 2, Stat. act limiting time within which franchise may be granted, p. 831, Stat. franchise for underground or elevated railroad, petition for, § 492. may srant franchise for uuderirround or ele- vated railroad, § 492. SUPPORT TO LAND, right of more than naturaJ. as easement, § 801. right to lateral and subjacent, S 832. SURETY. See Security. contribution. See Contribution. Incorporations for giving bonds, p. 725, Stat. release of principal, releases, §§ 1543, 2819. indemnitor, how far entitled to rights of, § 2779. when person indemnifying is, § 2779. defined, § 2831. apparent principal may show he is, § 2832. liability cannot exceed terms of contract, § 2836. not altered by judgment against principal, § 2838. discharged by offer to perform principal obli- gation, § 2839. 1018 INDEX. SUPERVISORS— Continiiecl. interpretation of contract, § 2837. how exonerated, §§ 2838, 2845. rights of, same as guarantor's, § 2844. right to compel creditors to sue, § 2845. to compel principal to perform, § 2846. to compel principal to repay him, § 2847. to compel cosureties to contribute, § 2848. to enforce remedies of creditor against princi- pal, § 2848. to benefit of securities held by creditor or co- surety, § 2849. to have principal's property taken first, § 2850. rights of creditor against, § 2855. indorser for accommodation has rights of, § 3122. corporation acting as surety, p. 725, Stat. corporation, acting as surety, assets of, p. 726. Stat. corporation acting as, duty of insurance com- missioner, p. 726, Stat. SURPLUS, conveyance in excess, by owner of life estate, § 1108. of advancement by testator during lifetime, effect of, § 1396. execution by agent in excess of authority, when binds, § 2333. SURPRISE, contract made by, not specifically enforced, § 3390. SURVEYOR-GENERAL, selection of right of way by corporations sent to, § 478. SUSPENSION, of power of alienation, §§ 715, 733. of ownership of term of years, § 770. of power to alienate subject of trust, § 771. of policy of insurance by transfer of thing, § 2593. TAIL, estates in, abolished, § 763. to what extent valid, § 764. TAXES, owner of life estate must pay, § 840. covenant for payment of, runs with land, § 1463. building and loan associations, tax on, § 648i/^. act imposing tax on issue of certificates of stoclv corporations, p. 833, Stat. TECHNICAL WORDS. See Definitions; Words. how construed, §§ 13, 1327, 1328. TELEGRAPH, obligations of carrier by, §2161. carrier by, must use utmost care, § 2162. INDEX. 1019 TELEGRAPH— Contimiecl. eommoD carrier by, must transmit in what or- der, §§ 2207, 2208. penalty for refusing or postponing message, § 2209. TELEGliAPH COMPANIES. See Corporations, act granting franchise for telegraph company between Asia and America, p. 835, Stat, act providing for sale of franchise to highest bidder, p. 814, Stat. TELEPHONE COMPANIES, act providing for sale of franchise to highest bidder, p. 814, Stat. TENANT. See Landlord and Tenant. TENANTS IN COMMON, husband and wife may hold as, § 161. when several devisees take as, § 1350. TENDER. See Offer of Performance. TESTAMENT. See Wills. TESTATOR. See Wills. TESTIMONY. See Evidence. THING IN ACTION. See Chose in Action. THIRD PERSON, when may recover for necessa- ries furnished wife, § 174. necessaries furnished child, § 208. when not recover for necessaries furnished child, § 209. contracts for benefit of, § 1559. estates for life of, § 7(36. remainder on estates for life of, §§ 775, 776. eff'ect of transfer where consideration paid by, • § 853. delivery in escrow made to, § 1057. grant may inure to benefit of, § 1085. may enforce contract made for own benefit, § 1559. when voluntary trustee, § 2243. when must see to application of trust property §2244. ''' trusts for benefit of, § 2250. ratification to prejudice of. not allowed, § 2313. responsibility of agent to, § 2343. agent must deliver to, when, § 2344. liability of partner to, § 2442. who liable as partner to, § 2444. information of belief of, material in marine in- surance, § 2670. 1020 INDEX. THIRD PERSON— Continued. contract to procure act by, not specifically en- forceable, § 3390. not to be prejudiced by revision of contract, when, §3399. act of, not to prejudice, § 3520. who must suffer by act of, § 3543. THREATS, desertion caused by, as ground of divorce, § 98. will procured by, void, § 1272. consent to contract obtained through, voidable, §§ 1567, 1689. menace, defined, § 1570. by trustee to obtain advantage, § 2228. by partner to obtain advantage, § 2411. TICKET. See Fare. failure of corporation to provide, § 490. TIDE-WATER, owner of land bounded by, § 830. TIME, computing, §§ 10, 14. of period of minority, § 26. of commencing action for nullity of marriage, §83. as to certain causes for divorce, § 107. of commencing actions for divorce, § 127. of creation of interest, what, § 749. in which alien nonresident must assert claim to take by succession, § 672. of delivery of grant, presumption, § 1055. words in will, relate to what, § 1336. at which obligation performed, §§ 1490, 1491. not of essence, unless expressly declared, § 1492. of performance of contract, § 1657. of performance, may be extended, § 1698. entire, of servant, belongs to master, § 2013. to which representation in insurance refers, § 2577. does not confirm void act, § 3539. lapse of. See Lapse of Time. TITLE, inventory of wife's property as notice of, §166. ownership of instruments, § 994. of property, how acquired, §§ 1000, 1001. by occupancy, §§ 1006, 1007. by accession, § 1013. by transfer, § 1039. redelivery of grant does not revest, § 1058. INDEX. 1021 TITLE— Continued. fee-simple, when presumed to pass, § 1105. subsequently acquired, passes by operation of law, § 1106. subsequently acquired, passes by will, § 1312. what, passes by transfer, §§ 1083, 1105. to highway, passes by transfer, § 1112. to personal property, what passes by transfer, § 1140. under executory agreement of sale, § 1141. when buyer acquires better, than settler has, § 1142. instruments evidencing, declared by judgment, how proved for record, §§ 1159. 1204. by homestead declaration, § 1205. to homestead, how recorded, § 1268. by devise, § 1311. by specific devise or legacy, § 13G3. to thing in performance, when passes to cred- itor, § 1502. warranty of, to personal property, § 1765. loan for use does not transfer, § 1885. loan for exchange transfers, § 1904. to freight, by transfer of bill of lading, §§ 2127, 2128. implied warranty of, to personal property, au- thority to agent to sell, § 2323. lien does not transfer, § 2888. property. See Property. ownership. See Ownership. TITLE DEEDS, ownership of, § 994. TITLE INSURANCE COMPANIES, plant consid- ered as part of assets of, § 427. dividends by, i;§ 429, 430. accumulating surplus fund, § 432. TOLLS, by wagonroad corporations, § 514. penalty for talking unlawful, § 514. not on public highways, § 515. rates to be posted over gate, § 516. toll gatherer may detain person until paid, § 517. not to detain person unnecessarily, § 518. penalty for avoiding, § 519. right of taking as servitude, § 802. TORTS. See Wrongs. TRADE, contracts in restraint of, §§ 1073-1675. Civ. Code— 86. 1022 INDEX. TRADEMARKS, subjects of ownership, § 655. what may be appropriated as, § 991. implied warranty, § 1772. act to protect owners of bottles, boxes, siphons, and liegs user! in sale of waters, beverages, or beer, p. 835, Stat. misdemeanor, use of bottles, kegs, boxes, or si- phons protected by trademark, p. 836, § 2, Stat. TRANSFER, of services and custody of child, §197. of stock, how, § 324. of stock of married woman, § 325. of stoclv of noniesident, § 326. future interests may pass by, § 699. effect of, Mhere consideration paid by third person, § 853. omitting to declare trust in, § 809. thing in action subject to, § 954. product of mind subject to, § 982. goodwill subject to, § 993. property acquired by, § 1000. defined, § 1039. voluntary, defined, § 1040. voluntary, consideration not necessary to val- idity, § 1040. what subject of, § 1044. mere possibility not subject of, § 1045. right of re-entry subject of, § 1046. adverse claim, § 1047. agreement not to transfer insured interest, when void, § 2599. of life insurance policy, § 2564. of thing insured does not transfer policy, § 2593. of interest in partnership property dissolves partnership. § 2450. Mode of, oral, § 1052. by grant, § 1053. Effect of, to vest title, § 1083. upon incidents of thing transferred, § 1084. in favor of stranger, § 1085. of personal property by sale, § 1140. Unlawful and fraudulent, instruments void against purchasers, § 1227. not void against purchasers having notice, un- less fraud mutual, § 1228. INDEX. 1023 TRANSFER— Continued. Unlawful and fraudulent power to revoke, when executed, §§ 1229, 1230. other ijrovi>^ions concerning, § 1231. presumed, Avhen, § 3440. when creditor can avoid, § 3441. question of fraud in respect to, a question of fact, § 3442. Of obligations, burden, when transferable. § 1457. right arising out of obligation, § 1458. of obligation running with land, § 1460. Of per.soual property, when in writing, § 1135, by sale, § 1130. of title under sale, § 1140. under executory agreement, § 1141. effect of, under sale, § 1142. TRANSIT, mort2:a2:ed property in, where deemed located, § 29(37. stoppage in, § 307G. stoppage in, liow effected, § 3079. stoppacce in, effect of, § 3080. TREASURE-TKOVE. See Finder. TREES, ownership of. §§ 833, 834. damages for injuries to, § 3346. TRESPASS, personal property acquired by § 1031. on personal property, liability of trespasser, § 1030. TRIFLES, law disregards, § 3533. TRIvSTS. suspension of power to alienate subject of. § 771. limited to those specified, § 847. must be in writing, § 852. resulting, limited. § 853. resulting, not to prejudice purchasers, § 856. express, for what purposes alloAved, § 857. when liable to creditors, § 859. vest Avhole estate in trustees, § 863. author of, may prescribe to whom estate shall belong, § 864. estate of grantee subject to, § 865. estate left in author of, § 866. powers over, of beneficiaries, § 867. omilting to declare in conveyance, § 869. expressed in creation of estate, acts in breach of. void, § 879. when to cease, § 871. 1024 INDEX. TRUSTS— Continued. interest in, liow transferred, § 1135. transfer of property in, wlien recorded, § 1164. voluntary, defined, § 2216. Involuntary, § 2217. parties to, § 2218. for what object created, § 2220. who deemed trustee under, § 2219. voluntary, how created as to trustor, § 2221. how created as to trustee, § 2222. obi ligations of trustee. See Trustees. obligations of trustor. See Trustees. obligations of third persons in respect to, § 2243. third person, when bound to see to application of property in, § 2244. defined, § 2250. how created, § 2251. when court is trustor under, § 2252. how declared, §§ 2253, 2254. termination, § 2279. not revocable, § 2280. trustee may be discharged, when, § 2282. effect of extinction of, § 2282. declaration of must be obeyed, § 2558. accumulations. See Accumulations. act to prevent combinations to obstruct sale of live stock, p. 705, Stat. See Trustees TRUSTEES, on dissolution of corporations, § 400. A^hole estate vests in, when, § 863. when grant to, deemed absolute, § 869. acts of, in breach of expressed trust, void, § 870. estate, when ceases, § 871. defined, § 2218. what constitutes, § 2219. beneficiary must be indicated by trust, § 2221. trust, how created as to, § 2222. involuntary, wrongful holder, § 2223. involuntary, fraudulent gainer, § 2224. must act in best faith, § 2228. not to use property for own funds, § 2229. not to talvc part in transactions adverse to ben- eficiary, § 2230. not to take advantage of beneficiary, § 2231. not to assume trust adverse to interest of bene- ficiary, § 2232. INDEX. 1025 TRUSTEES— Continued. mnst disclose adverse interest to beneficiary, § 2233. when .i2:uilty of fraud, § 2234. presumption a.irainst, § 223.5. mixing funds witli o^Yn, bow far liable, § 2236. measure of liability for breach of trust, §§ 2237, 2238. responsible for acts of co-trustee, when, § 2239. when third person becomes involuntary. § 2243. payment to, when sufficient, § 2244. when person acquiring trust property becomes, § 22.50. assent of trustor and, creates trust, § 2251. appointed by court, court is trustor, § 2252. declaration of trust by trustor, §§ 22-53, 2254. must fulfill purpose of trust, § 22.58. use ordinary care and diligence, § 2259. procure trustworthy successor on discharge, § 2260. invest trust fund, how. § 2261. pay interest, when, § 2262. cannot enforce claim against trust fund. § 2263. powers of, as agent, § 2267. cannot act without assent of co-trustee, § 2268. discretionary power of, how controlled, § 2269. involuutaiy rights of, § 2275. trustor cannot revolve trust, when, § 2280. office, how vacated, § 2281. how discharged, § 2282. how removable, § 2283. nppointraent of new, § 2287. survivorship. § 2288. superior court, Mhen to appoint, § 2289. declaration of trust must be obeyed, § 2558. insurance b^'. how made, § 2589. UNCERTAINTY in will, how interpreted, § 1272. UNDUE INFLUENCE, will procured by, void, § 1272. contract obtained through, voidable, §§ 1567, 1689. defined, § 1575. thing gained by, lield in trust, § 2224. presumption of, against trustee, § 2235. 1026 INDEX. UNFAIR ADVANTAGE. See AdVcanta^e. -UNINCORPORATED ASSOCIATIONS. See Building: and Loan Associations; Co-opera- tive Associations, co-operative business corporations. See Cor- porations, kinds of, 742, Stat, chambers of commerce, formation of, p. 737, Stat, mechanics' institutes, formation of, p. 737. Stat, boards of trade, formation of, p. 737, Stat, consolidation of college, effect of, § G53. consolidation of colleges, manner of, § 652. colleges authorized to consolidate, § 652. consolidation of colleges, transfer of property, § 653. cumulative voting in, § 307. UNLAWFUL condition in instrument renders void, § 709. condition in obligation void, § 1442. alternative in contract, effect of, § 1451. contracts. See Contracts, transfers. See Transfers. UNRECORDED INSTRUMENTS. See Bona Fide Purchasers, valid as between parties and those having no- tice, § 1217. UNSOUND MIND. See Persons of Unsound Mind. USAGE, meaning of words fixed by, § 1644. employee to conform to, § 1982. agent to conform to, § 2349. USES AND TRUSTS. See Charitable Uses; Trusts. USURY. See Interest. VALUABLE CONSIDERATION. See Considera- tion. VENDOR, lien of, § 3046. vendee's lien, § 3050. when deemed to waive lien, § 3047. extent of lien, § 3048. vendor and vendee. See Conveyances; Pur- chaser. VESTED INTEREST, future, defined, § 694. VIGILANT, preference given to the, § 3527. VOLUNTARY TRANSFER, defined, § 1040. consideration not necessary, § 1040. VOYAGE. See Shipping. INDEX. 1027 WAGES. See Services. of minor, when paid to him, § 212. of seamen, when begin, § 20.55. depend on freightage, when, § 2054. depend on freightage, wlien not, § 2058. wlien voyage brol^en np. § 205G. when wrongfully discharged, etc.. § 2057. when prevented from rendering service, § 2060. when personal representatives entitled to, § 20G2. not lost by special agreement, § 2052. of seamen, lien for, § 305G. WAGON ROAD COliPORATIONS. See Corpora- tions. WAIVER, person of unsound mind cannot lose rights by, § 40. of objections to offer of performance. § 1501. of option as to delivery of goods. § 17.56. of communication in insurance, § 2568. of notice of sale of pledged property, § 3003. of demand by pledgor or debtor, § 3004. of presentment and notice. § 31.59. of protest. § 3160. of provisions of Civil Code by stipulation be- tween parties. § 3268. WAR dissolves partnership, § 2450. WARD. See Guardian and Ward. WAREHOrSEMAX. See Storage. act concerning receipt of, p. 839. carrier's liability as. § 2120. cai'rier's liability ceasing on delivery to, § 2121. fire, warehouseman not liable for loss by, without neglect, p. 841, § 9, Stat. act relating to issue of receipts, p. 839, Stat. warehouseman violating statute relating to re- ceipts guiltv of felony, p. 842, § 10, Stat. WARRANTIES, lineal and collateral, abolished, § 1115. WARRANTY. See Quality; Quantity. covenant of, runs Avith land, § 1463. executory contract binds seller to insert, § 1733. defined, § 1763. none implied in sale, except, § 1764. of title to personal property, § 1765. on sale by sample, § 1766. where buyer relies on seller's judgment, § 1767. by manufacturer, §§ 1768-1770. 1028 INDEX. WARRANTY— Continued. of goods inaccessible to buyer, § 1771. of tradeniarlvs, § 1772. of other marlcs on goods, § 1773. on sale of written instrument, § 1774. of provisions for domestic use, § 1775. on sale of good-will, § 1776. on judicial sale, § 1777. effect of general, § 1778. right of buyer to inspect goods on sale with. § 1785. right of buyer to rescind in case of breach of, § 17S6. implied, of money exchanged, § 1807. implied, in authority to agent to sell personal property, § 2323. implied in negotiable instrument, § 8116. of authority, § 2342. agent has power to give, § 2323. auctioneer has power to give, § 2362. damages on, of quality of personal property, § 3313. damages on, of title to personal property, § 3312. damages on, of agent's authority, § 3318. in insurance. See Insurance. WATER. See Streams. easement in, where furnished to land sold by company, § 552. right of taking, as easement, § 801. right of receiving and discharging on land, as easement. § 801. boundaries by, § 830. rights to, how acquired, § 1410. rights of appropriation, § 1410. appropriation must be for use, § 1411. point of diversion may be changed, § 1412. clianging the use. § 1412. may be turned into natural channels, § 1413. priority of right to, § 1414. notice of appropriation, § 1415. diligence in appropriation, § 1416. "completion" defined, § 1417. doctrine of relation applied to, § 1418. forfeiture of right to, § 1419. rights of present claimant, § 1420. act regulating sale of water, p. 843, Stat. INDEX. 1028 WATER— Continued. appropriation, riglits to water may be acquired by, § 1410. such to be for useful purpose, § 1411. priority of such establislies priority of right, § 1414. notice of such, § 1415. diligence in prosecuting such. § 1416. appropriation of, act tsecuring rights of way for conveyance of water to place of use, p. 843, Stat. appropriation, time for construction of worlds where dam recommended by debris commis- sioners, § 1416. appropriation of, act regulating sale, rental, and control of appropriated water, p. 843, Stat. appropriation of, act providing for rights of way for convej'ance of. p. 843, Stat. WATER COMMISSIONERS, act to promote irri- gation, § 1422. WATER COMPANIES. See Corporations, kinds of. appropriation of, act regulating sale, rental, and distribution of, p. 843, Stat. act regulating sale, rental, and distribution of water other than in cities, p. 843, Stat. irrigation corporation, duty to supply water, § 324. duty to supply water, § 324. irrigation corporation, transfer of shares of stocli in, § 324. irrigation corporation, transfer of stock in, § 324. irrigation corporation, stock located on land, transfer of, § 324. irrigation corporation, stock in, as appurte- nance to land, § 324. corporation to sell water for irrigation, sale to stockholders only, § 324. act regulating sale, rental, and control of ap- propriated water, p. 843, Stat. act securing rights of way for conveyance of water to places of use, p. 843, Stat. act providing for securing rights of way for conveyance of water. p.''S43T Stat. WAY, RIGHT OF. See Riglit of Way. 1030 INDEX. WAYS, boundaries by, § 831. WEAKNESS OF MIND. See Persons of Un- sound Mind, unfair advantage of, renders contract voidable, §§ 1507. 1575. AVHARF CORPORATIONS. See CoiiDorations, Kinds of. WHARFIMGER, act concerning receipts of, p. 839, Stat. WIDOW, legacy to. when chargeable with debts of testator, § 1361. Interest on legacy to, when accrues, § 1369. inlieritance bv. See Succession. WIFE. See Husband and Wife. WILLS. succession. See Succession. include codicils, § 14. when person of unsound mind may make, § 40. devisee may dispute legitimacy of issue, § 196. future interest may pass by, § 699. power may be acquired by. § 1000. liability of persons acquiring property by, § 1115. effect of, upon gift, § 1152. gift when treated as legacy, § 1153. who may malce, § 1270. procured bv fraud, may be denied probate, § 1272. revocation, obtained by fraud, void, § 1272. married woman may dispose of separate prop- erty by, § 1273. what may pass by, § 1274. who talie by, § 1275. written, how executed, § 1276. olographic will defined, § 1277. witness must state residence, § 1278. conjoint or mutual, § 1279. competency of subscribing witness, § 1280. conditional, § 1281. gift, to subscribing witness, when void, § 1282. creditors competent witnesses, § 1282. witness, Avhen entitled to devise by, § 1283. void, unless duly executed, § 1285. effect of codicil, § 1287. power to devise, how executed by terms of, § 1330. INDEX. 1031 WILLS— Continued. execution nnd f'(»nstruction of prior, not affect ed by Code, § 1375 mort.uage on property devised, how satisfied, f 2040. child born after, tal^es share, § 130G. share of child born after, out of what taken, § 1308. children unprovided for, when succeed. § 1307. death of devisee before testator, §§ 1309, 1343, 1344. when devise does not lapse by death of dev- isee, § 1310. devises, how construed, § 1311. subsequently acquired title passes by, § 1312. , restriction on power to devise to charitable use, § 1313. change of interest by, does not affect insur- ance, § 255G. conditional will, when may be denied probate, § 1281. conditional devise or bequest, what, § 1345. conditional devise or bequest, when vests, § 1347. advancements. See Advancements. Interpretation and effect of, accoi'ding to inten- tion, § 1317. confined to written will, § 1318. rules to be observed, § 1319. several, to be taken together, § 1320. all parts considered in, § 1321. latter part controls, § 1321. distinct clause not affected by indistinct, § 1322. am Dignity or doubt, § 1323. words taken in ordinary sense, § 1324. words to receive operative construction, § 1325. to avoid intestacy, § 132G. technical words, § 1327. technical words not necessary, § 1328. word '"heirs" not necessary to pass fee, § 1329. power to devise, how executed by terms of will, § 1330. of devise of real property, § 1331. of devise of residue of real property, § 1332. of devise, as referring to time of death, § 1333. 1032 INDEX. WILLS— Continued. "heirs," "reiatives," "issue," "descendants," etc., § 1334. of Yv^ords of donation and limitation, § 1335. to wliat time words refer, § 1336. of devise or bequest to a class. § 1337. of directions or conversion, § 1338 when posthumous child takes under will, § 1339. mistakes and omissions, § 1340. when devises and bequests vest, § 1341. when cannot be divested, § 1342. death of devisee or legatee, § 1343. interests in remainder not affected, § 1344. conditional devises and bequests, § 1345. condition precedent, what, §1346. conditions precedent, when performed, § 1348. effect of condition precedent, § 1347. conditions subsequent, what, § 1349. devisees, etc., talvc as tenants in common, § 1349. advancements when ademptions, § 1351. by what law governed, § 1376. executor according to the tenor, § 1371. power to appoint is invalid, § 1372. executor not to act till qualified, § 1373. execution and construction of prior wills, § 1375. the law of what place applies, § 1376. Legacies and general provisions, nature and der- ivation of legacies, § 1357. specific, § 1357. demonstrative, § 1357. annuit3% § 1357. residuary, § 1357. general, § 1357. ademptions, § 1351. order of sale in case of intestate, § 1358. property, how applied to payment of, § 1359. how applied to payment of debts, § 1360, to kindred, chargeable only after others, § 1861. abatement of, § 1362. specific, title passes by, 1363. possession of, how obtained, §§ 1363, 1865. heirs' conveyance good when, § 1364. for life, inventory to be given, § 1365. of income, when accrues, § 1366. INDEX. 1033 WILLS— Continued. may be satislied. § 13G7. when due, § 1308. interest on, § 1369. construction of rhese rules, § 1370. liability or* letj^atees for testator's debts, § 1377. Revocation of, procured by fraud may be annull- ed, § 1272. of mutual will may be effected, § 1279. void, unless duly executed, § 1285. of Ayritten will, § 1292. eyidence, § 1293. of duplicate, § 1295. by subsequent will, § 1296. subsequent, does not reyive prior will. § 1297. by marriage and birth of issue, § 1298. by marriaue of testator, § 1299. by marriaue of testatrix, § 1300. contract to sell property disposed of. § 1301. incumbrance on property disposed of, § 1302. conyeyance, when not, § 1303. couyeyance, when, § 1304. reyokes codicils, § 1305. after-born child, unproyided for, to succeed, § 1306. children unproyided for, § 1307. share of unproyided for child, § 1308. advancement to child, § 1309. death of devisee, being a relative, during testa- tor's lifetime, § 1310. provisions relating to, apply to what wills, § 1374. Nuncupative, need not be in writing, § 1276. how executed, § 1288. requisites to make valid, § 1289. proof, § 1290. probate, § 1291. WITNESSES. See Evidence. testimony, when privileged, § 47. recording of instruments proved by other than subscribing, § 1198. oatii of credible, necessary in taking acknowl- edgments, § 1185. subscribing, to be personally known to officer talviug i)roof, § 1196. to prove, what, § 1197. handwriting of, when proved, § 1198. Civ. Code— 87. 1034 INDEX. WITNESSES— Continued. siibseribins:, to prove, what, § 1199. lo will, necessary, §§ 1276, 1289. to will. § 1278. to will, cannot take under will, § 1282. when may take as much under will as by suc- cession, § 1283. not necessary to oloorapliic will, § 1277. AYOMEN. See Female. WORDS. See Delinitions; Technical Words. giving joint authority, how construed, § 12. construction of, § 13. of inheritance, not necessary to pass fee, § 1072. Interpretation of, doubtful, §§ 1068, 1654. taken in ordinary sense, §§ 1321, 1644. technical, not necessary in will, § 1328. to receive operative construction in will, § 1325. technical, how construed, §§ 1327, 1645. to be given some meaning if possible, § 1326. in will, to what time refer, § 1336. of donation and limitation in will, § 1335. used in codes. See Codes. WORKMANSHIP, ownership of property formed by materials and. § 1028. W^RECKS AND AA'RECKED TROPERTY, invol- untary deposit in case of shipwreck, § 1815. duty of depositary in such case, § 1816. wages of seamen not lost by shipwreck, § 2058. WRITING. See Oral Statements. marriage settlement, § 178. consent to apprenticeship, § 266. trusts in real property, § 852. ownership of private communications in, § 991. transfer without, when, § 1052, transfer in, called grant, § 1053. transfer of real property to be in, § 1091. instruments in, prima facie import considera- tion, § 1096. transfer of what personal property to be in, § 1135. will, § 1276. nuncupative will need not be in, § 1288. non -negotiable instrument in. transferable, § 1459. debtor, on payment, entitled to receipt in, § 1499. INDEX. 1035 WRITING— Continued. release in. § 1541. contract prevented by fraud from being put in, enforced when, § 1G23. wliat contracts to be in, § 1624. supersedes oral negotiations concerning con- tract. § 1625. contract in. talces effect when, § 1626. how far disregarded when erroneous, § 1640. intention of parries wlien ascertained from, § 1639. in contract controls printed parts, § 1651. contract in, liow altered, § 169S. implied warranty on sale of executory instru- ment in, § 1774. carrier's obligations not altered except by, § 2174. guaranty, when to be in, § 2793. power of attorney to execute personal mort- gage, § 29.59. WROXG, minors and persons of unsound mind liable foi-, S 41. he who consents, suffers no, § 3515. no one can be permitted to take advantage of his own, § 3517. remedy for every, § 3523. law does not interpose between parties equally in, § 3524. YEAR, defined, §§ 14, 1917. 4 i % oJ acio B 000 018 974 6