^OFCAIIFO/?^ AWEUNIVERV^ ^oxwnm-^ ^lOSANr.FIF vKlOSANCELf; o ^ o ^V3l-lAlir-Uh'^ UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY AWEUNIVER5'/a , , ^ o ^ ,A;OFCAllFnp, tv ■^om ^OFCAIIFO% ^OAHvaaiH^ \ \WEUNIVERS//) O \ ^WUNIVtKVA 8 ^^ — -^ ^VllBRARY6k ^IIIBRARYQ^ '^^ ^X3 '^' \ME UNIVERS//- '/- 1^1 i -^ -/■/ -< ^OFCAIIFO/?^ ^OFCAIIFO/?^ '^^CAavaalH^^^ ^^Advaani^^ f\U IlkilV'CDf •^JMJi'^Y iur'* -n «-) O mL ■in \ ^ , ^WE UNIVERI//, vvlOSANCElfj> ^TilJOKYSm^ . ^ME UNIVERS/A >- vj,lOSANCElfj> ^TilJOKVSOl"^'^ ^ 1 l<— ^ ^ *" "^(i/OJIW^ JO ^OFCA •3^ r»» 5: ^ ^5^lllBRARY6'/ ^^^^lllBRARY6>^ \WEUNIVER% .^ THE CODES OF CALIFORNIA AS AMENDED AND IN FORCE AT THE CLOSE OF THE THIRTY-EIGHTH SESSION OF THE LEGISLATURE, 1909 IN FOUR VOLUMES POCKET EDITION ANNOTATED BY JAMES M. KEKR VOLUME TWO CIVIL (ODE BAN I^^RANCJSCO BENDER - MOSIS COMPA \ ^' LAW ITIU.r.SIIERS AND BOOKSELLEKS 1909 Copyright, 1909 By Bender-Moss Company FOREWORD, In putting forth this edition of the Civil Code the editor desires to call the attention of the younger members of the profession, and of those who are about to enter upon the practice of the law, to the value and the excellence of our Civil Code. It comprises the body of substantive law in all civil matters, the same as the Code of Civil Procedure con- tains the law regulating the procedure and practice in all civil causes and proceedings in all the courts of the state. These two codes supplement each other; one embodies the body of the substantive, the other the adjective law of the state. The Civil Code supersedes and supplants all Civil Law and all Common Law doctrines and rules, and, where it speaks, is supreme. Hence the importance of a close study of and thorough knowledge of its provisions. After the Code itself are the application of and interpretation of its provisions by our state courts and the Federal courts. All these applica- tions and interpretations are collected in Kerr's Cyclopedic Codes — and nowhere else, together with a great deal of perti- nent matter drawn from all the courts of all the states of the Union, to fully enforce and illustrate a principle in all its various applications, or to show that a doctrine announced is out of harmony with the general trend of authority, or con- trary to the weight of decision in this country. The annotations sui)plied to the Pocket Edition do not duplicate, but merely supplement, the annotations found in the Cyclopedic Codes — the great and only body of pertinent and exhaustive annotations of our Codes. A word of explanation as to the method of annotation in this volume may not be out of place. It is sought to make the volume a complete index to valuable collections of authori- ties. Of course the Century Digest and Decennial Digest furnish the only complete collection — applicable and inappli- iii FOREWORD. cable to our Codes — of American authorities upon any subje* of the law; but there are many valuable collections — thoug incomplete — along particular lines, elaborating a distinct legai point, with a thread of discussion thrown in, and sometimes showing the history of the development of a particular doc- trine. All these are more or less valuable, according to the ability and experience and sound legal judgment of the persons who prepare them. All are assistful to the practi- tion'^1' References have been made to all of these annota- tions or monographic notes, as well as numerous specific references to the Century and Decennial Digests, making this volume a complete index, — on the more important topics of substantive law, — to all valuable collections of authorities to be found in the various series of selected and annotated cases, supplemented by general and specific references to the great body of exhaustive annotations to be found in Kerr's Cyclo- pedic Codes of California, — the greatest body of exhaustive and pertinent annotation to be found anywhere. Believing that a complete and systematic treatment of a topic in one note is more assistful than the same matter dis- persed throughout the entire subject as presented in the Code, it has been the aim to keep the matter on a particular subject as much in one place as practicable. Thus, in the title Corpo- rations, those matters common to all corporations will be found collected under § 283 ; matters peculiar to insurance companies generally, will be found under §414; matters pe- culiar to railroads and street-railroads, under § 454 and § 497 respectively; bridge, ferry, etc., corporations, under § 528; telegraph and telephone companies, under §536; water com- panies, under § 548, and so on. In the title Carriers, all that pertains to carriers generally, and affects all classes of car- riers, will be found collected under § 2085 and the sections immediately following; matters pertaining to carriers of per- sons, and carriers of goods and livestock, under § 2100 and § 2114 respectively. This method of annotation is new, and it is hoped the pro- fession will find it to be as assistful and convenient as the editor believes it will be. iv FOREWORD. The index is prepared on the same general plan as the index to Kerr's Annotated Pocket Code of Civil Procedure, and it is expected that it will prove to be as highly satisfactory as did the one to the Pocket Procedure. In the preparation of this volume the editor has received valuable assistance from Mr. W. S. Church, of the San Francisco Bar. JAMES M. KERR. San Francisco, August 12, 1909. I CONTKNTS. ERRORS IN CALIFORNIA REPORTS IN CITATION ABBREVIATIONS IN POCKET CODES TITLE OF THE ACT PRELIMINARY PROVISIONS Pap:es. xxi-xxx Sections. 1 1-21 DIVISION FIRST. (Sees. 25-653zb.) PART I. PERSONS 2.i-lL' II. PERSONAL RIGHTS 4.'.-r.1 III. PERSONAL RELATIONS 55-276 Title I. Marriage 55-181 Chapter I. The Contract of Marriage 55-80 Article I. Validity of MarriaRe 5.5-63 II. Authentication of Marrlapte 6S-79a 11 r, .Judicial Determination of Void Marriage SO Chapter II. Divorce 82-148 Article I. Nullity 82-86 II. Dissolution of Marriase 90-107 III. Causes for Denying Divorce 111-1:12 IV. C.enoral Provisions 136-118 Chapter 111. llnshand and Wifr 155-181 Title II. Parent and Child. Chapter 1. Hy Hirth II. Hy .Vdoption 193-2;'.0 i;t:;-2i5 L' 2 1-230 Title III. Guardian and Ward J36-258 IV. Master and Apprentice 264-276 vli CONTENTS. Sections. PART IV. CORPORATIONS 283-653zb Title I. General Provisions Applicable to All Cor- porations 283-410 Chapter I. Formation of Corporations 283-321b Article I. Corporations Defined and How Organized 283-300a II. By-Laws, Directors, Electors, and Meet- ings 301-321b Chap+prll. Corporate Stock 322-349 Article I. Stock and Stockholders 322-329 II. Assessment of Stock 331-349 Chapter III. Corporate Powers 354-393 Article I. General Powers 354-365 II. Records 377, 378 III. Examination of Corporations, etc 382-384 IV. Judgment Against and Sale of Corporate Property 388-393 Chapter IV. Extension and Dissolution of Corpora- tions 399-403 V. General Provisions Affecting Corporations ^. .... 403[a],404 VI. Foreign Corporations 405-410 Title II. Insurance Corporations 414-453p Chapter I. General Provisions 414-421 [a] II. Fire, Marine, and Title Insurance Com- panies 424-432 III. Mutual Life; Health, and Accident Insur- ance Corporations 437-452 IV. Mutual Benefit and Life Associations. . . . 452a, 453 V. Corporations to Discover Fire and Save Property and Human Life from Destruc- tion Thereby 453a-453c VI. Life, Health, Accident, and Annuity or Endowment Insurance on the Assess- ment Plan 453d-453p viii CONTENTS. Sections. Title ill. Railroad Corporations 454-494 Chapter I. Officers and Corporate Stock 454-459 II. Enumeration of Powers 465-478 III. Business, how Conducted 479-494 Title IV. Street-Railroad Corporations 497-511 V. Wagon-Road Corporations 512-524 VI. Bridges, Ferry, Wharf, Chute, and Pier Corporations 528-531 VII. Telegraph and Telephone Corporations.. 536-540 •VIII. Water and Canal Corporations 548-552 IX. Homestead Corporations 557-566 X. Savings and Loan Corporations 571-583b XI. Mining Corporations 586-590 XIa. Corporations for the Formation of Cham- bers of Commerce, Boards of Trade, IVIechanics' Institutes, and other Kin- dred Associations 591-592e XII. Religious, Social, and Benevolent Corpo- rations ■ 593-605 XI la. Societies for the Prevention of Cruelty to Children and Animals 607-607g XIII. Cemetery Corporations 608-616 XIV. Agricultural Fair Corporations 620-622 XV. Corporations to Furnish Light for Public Use 629-632 XVI. Building and Loan Associations 633-648a XVII. Colleges and Seminaries of Learning.... 649-651 XVIII. Consolidation of Colleges and Institutions of Higher Education 652,653 XIX. Co-operative Business Corporations 653a XX. Co-operative Business Associations 653b-653I XXI. Non-Profit Co-operative Agricultural, Viti- cultural and Horticultural Associations 653m-653s XXII. Non-Profit Co-operative Corporations. .. .653t-653zb ix CONTENTS. Sections. DIVISION SECOND. (Sec. 654-1425.) 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 Ownership 678-726 Article I. Interest in Property 678-703 II. Conditions of Ownership 707-711 III. Resraints upon Alienation 715-718 IV. Accumulations 722-726 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 11. Termination of Estates 789-793 III. Servitudes 801-811 Title III. Rights and Obligations of Owners 818-843 Chapter I. Rights of Owners 818-834 Article I. Incidents of Ownership 818-827 II. Boundaries 829-834 Chapter II. Obligations of Owners 840-843 Title IV. Uses and Trusts 847-871 V. Powers (repealed) 878-940 PART III. PERSONAL OR MOVABLE PROPERTY. 946-995 Title I. Personal Property in General 946,947 11. Particular Kinds of Personal Property... 953-995 X CONTEXT>^. Sections. Chapter 1. Things in Action 953, 954 II. Shipping 960-973 Article I. General Provisions 960-966 II. Rules of Navigation 970-973 Chapter III. Products of the Mind 980-985 IV. Other Kinds of Personal Property 991-995 PART IV. ACQUISITION OF PROPERTY 1000-1426S Title I. Modes in Which Property May Be Ac- quired 1000, 1001 II. Occupancy 1006, 1007 III. Accession 1013-1033 Chapter I. Accession to Real Property 1013-1019 II. Accession to Personal Property 1025-1033 Title IV. Transfer 1039-1231 Chapter I. Transfers in General 1039-1085 Article I. Definition of Transfer 1039, 1040 II. What May Be Transferred 1044-1047 III. Mode of Transfer 1052-1060 IV. Interpretation of Grants 1066-1072 V. p:ffect of Transfer 1083-1085 Chapter II. Transfer of Real Property 1091-1115 Article I. Mode of Transfer .' 1091-1096 II. Effect of Transfer 1104-1115 Chapter III. Transfer of Personal Property 1135-1153 Article I. Mode of Transfer 1135, 1136 II. What Operates as a Transfer 1140-1142 III. Gifts 1146-1153 Chapter IV. Recording Transfers 1158-1218 Article I. What May Be Recorded 1158-1 165 • II. Mode of Recording 1169-1173 III. Proof and Acknowledgment of Instru- ments 1180-1207 IV. Effect of Recording, or the Want Thereof .1213-1218 Chapter V. Unlawful Transfers 1227-1231 xi CONTENTS. Sections. Title V. Homesteads 1237-1269c Chapter I. General Provisions 1237-1261 II. Homestead of the Head of a Family 1262-1265 III. Homestead of Other Persons 1266-1269 IV. Alienation of Homesteads of Insane Per- sons 1269a-1269c Title VI. Wills 1270-1377 Chapter I. Execution and Revocation of Wills 1270-1313 IT. Interpretation of Wills, and Effect of Vari- ous Provisions 1317-1351 III. General Provisions 1357-1377 Title VII. Succession 1383-1409 VIII. Water-Rights 1410-1422 IX. Hydraulic Mining 1424,1425 X. Locating Mining Claims, Tunnel Rights, Mill Sites, etc 1426-1426s DIVISION THIRD. (Sees. 1427-3268.) PARTI. OBLIGATIONS IN GENERAL 1427-1543 Title I. Definition of Obligations 1427, 1428 II. Interpretation of Obligations 1429-1451 Chapter I. General Rules of Interpretation 1429 II. Joint or Several Obligations 1430-1432 III. Conditional Obligations 1434-1442 IV. Alternative Obligations 1448-1451 Title III. Transfer of Obligations 1457-1468 IV. Extinction of Obligations 1473-1543 Chapter I. Performance 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 xii CONTENTS. S.-ctions. PART II. CONTRACTS 1549-1701 Title I. Nature of a Contract 1549-1615 Chapter I. Definition 1549, 1550 II. Parties 1556-1559 III. Consent 1565-1589 IV. Object of a Contract 1595-1599 V. Consideration 1605-1615 Title II. Manner of Creating Contracts 1619-1629 III. Interpretation of Contracts 1635-1661 IV. Unlawful Contracts 1667-1676 V. Extinction of Contracts 1682-1701 Chapter I. Contracts, How Extinguished 1682 II. Rescission 16S8-1691 III. Alteration and Cancelation 1697-1701 PART III. OBLIGATIONS IMPOSED BY LAW 1708-1715 IV. OBLIGATIONS ARISING FROM PAR- TICULAR TRANSACTIONS 1721-3268 Title I. Sale 1721-179S Chapter I. General Provisions 1721-1741 Article I. Sale 1721, 1722 II. Agreement for Sale 1726-1734 III. Form of the Contract 1739-1741 Chapter II. Rights and Obligations of the Seller 1748-1778 Article I. Rights and Duties Before Delivery 1748, 1749 II. Delivery 1753-1758 III. Warranty 1763-1778 Chapter III. Rights and Obligations of the Buyer 1784-1786 IV. Sale by Auction 1792-1798 Title II. Exchange 1804-1807 III. Deposit 1813-1878 Chapter I. Deposit in General 1813-1828 Article I. Nature and Creation of Deposit 1813-1818 II. Obligations of the Depof?|tary ., 1822-1828 xiii CONTENTS. Sections. Chapter II. Deposit for Keeping 1833-1872 Article I. General Provisions 1833-1840 II. Gratuitous Deposit 1844-1847 III. Storage 1851-1857 Ilia. Warehousemen 1858-1858f IV. Innkeepers 1859-1863 V. Finding 1864-1872 Chapter III. Deposit for Exchange 1878 Title IV. Loan 1884-1920 Chapter I. Loan for Use 1884-1896 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 Property 1955-1959 Title VI. Service 1965-2079 Chapter I. Service of Employment 1965-2003 Article I. Definition of Employment 1965 II. Obligations of the Employer 1969-1971 m. Obligations of the Employee 1975-1992 IV. Termination of Employment 1996-2003 Chapter II. Particular Employment 2009-2072 Article I. Master and Servant .2009-2015 II. Agents 2019-2022 III. Factors 2026-2030 IV. Shipmasters 2034-2044 V. Mates and Seamen 2048-2066 VI. Ship's Managers 2070-2072 Chapter III. Service Without Employment 2078, 2079 Title VII. Carriage 2085-2209 Chapter I. Carriage in General 2085-2090 II. Carriage of Persons 2096-2104 Article I. Gratuitous Carriage of Persons 2096 II. Carriage for Reward 2100-2104 xiv CONTENTS. Sections. Chapter III. Carriage of Property 2110-2155 Article I. General Definitions 2110 II. Obligations of the Carrier 2114-2122 III. Bill of Lading 2126-2132 IV. Freightage 2136-2144 V. General Average 2148-2155 Chapter IV. Carriers of Messages 2161, 2162 V. Common Carriers 2168-2209 Article I. Common Carriers in General 2168-2177 II. Common Carriers of Persons 2180-2191 III. Common Carriers of Property 2194-2204 IV. Common Carriers of Messages 2207-2209 Title VIII. Trusts 2215-2289 Chapter I. Trusts in General 2215-2244 Article I. Nature and Creation of a Trust 2215-2224 n. Obligations of Trustees 2228-2239 III. Obligations of Third Persons 2243, 2244 Chapter II. Trusts for the Benefit of Third Persons. .2250-2289 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 Trus- tees 2287-2289 Title IX. Agency 2295-2389 Chapter I. Agency in General 2295-2356 Article I. Definition of Agency 2295-2300 II. Authority of Agents 2304-2326 III. Mutual Obligations of Principals and Third Persons 2330-2339 IV. Obligations of Agents to Third Persons. .2342-2345 V. Delegation of Agency 2349-2351 VI. Termination of Agency 2355, 2356 XV CONTENTS. Sections. Chapter II. Particular Agencies 2362-2389 Article I. Auctioneers 2362, 2363 II. Factors 2367-2369 III. Shipmasters and Pilots 2373-2385 IV. Ships' Managers 2388, 2389 Title X. Partnership 2395-2520 Chapter I. Partnership in General 2395-2418 Article I. What Constitutes a Partnership 2395-2397 II, r-a rtnership Property 2401-2406 III. Mutual Obligation of Partners 2410-2413 IV. Renunciation of Partnership 2417, 2418 Chapter II. General Partnership 2424-2472 Aritcle I. What 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 2458-2462 VII. Of the Use of Fictitious Names 2466-2472 Chapter III. Special Partnership 2477-2510 Article I. Formation of Partnership 2477-2485 II. Powers, Rights, and Duties of the Part- ners 2489-2496 III. Liability of Partners 2500-2503 IV. Alteration and Dissolution 2507-2510 Chapter IV. Mining Partnership 2511-2520 Title XI. Insurance 2527-2766 Chapter I. Insurance in General 2527-2649 Article I. Definition of Insurance 2527 II. What May Be Insured 2531-2534 III. Parties to the Contract 2538-2542 IV. Insurable Interest 2546-2558 V. Concealment and Representation 2561-2583 VI. The Policy 2586-2599 VII. Warranties 2603-2612 VIII. Premium 2616-2622 xvi CONTENTS. Article. Sections. IX. Loss 2626-2629 X. Notice of Loss 2633-2637 XL Double Insurance 2641, 2642 XIL Reinsurance 2646-2649 Chapter IL Marine Insurance 2655-2746 Article I. Definition of Marine Insurance 2655 II. Insurable Interest 2659-2665 III. Concealment 2669-2672 IV. Representations 2676, 2677 V. Implied Warranties 2681-2688 VI. The Voyage and Deviation 2692-2697 VII. Loss 2701-2712 VIII. Abandonment 2716-2732 IX. Measure of Indemnity 2736-2746 Chapter III. Fire Insurance 2752-2757 IV. Life and Health Insurance 2762-27-66 Title XII. Indemnity 2772-2781 XIII. Guaranty 2787-2866 Chapter I. Guaranty in General 2787-2825 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 Chapter II. Suretyship 2831-2866 Article I. Who Are Sureties 2831, 2832 II. Liability of Sureties 2836-2840 III. Rights of Sureties 2844-2850 IV. Rights of Creditors 2854 V. Letter of Credit 2858-2866 Title XIV. Lien 2872-3080 Chapter I. Liens in General 2872-2913 Article I. Definition of Lien 2872-2877 TI. Creation of Liens 2881-2884 III. Effect of Liens 2888-2892 xvii Articlo. IV. V. VI. Chapter II. Article I. II. III. Chapter III. TV. V. VI. VII. Title XV. Chapter I. Article I. II. III. IV. V. VI. VII. Chapter II. Article I. II. HI. IV. V. VI. VII. VIII. Chapter III. IV. V. Title XVI. CONTENTS. Sections. Priority of Liens 2897-2899 Redemption from Lien 2903-2905 Extinction of Liens 2909-2913 Mortgage 2920-2973 Mortgages in General 2920-2942 Mortgages of Real Property 2947-2952 Mortgage of Personal Property 2955-2973 Pledge 2986-3011 Bottomry 3017-3029 Respondentia 3036-3040 Other Liens 3046-3065 Stoppage in Transit 3076-3080 Negotiable Instruments 3086-3262 Negotiaijle Instruments in General. ..... .3086-3165 General Definitions 3086-3095 Interpretation of Negotiable Instruments. 3099-3104 Indorsement 3108-3125 Presentment for Payment 3130-3137 Dishonor of Negotiable Instruments 3141-3151 Excuse of Presentment and Notice 3155-3160 Extinction of Negotiable Instruments.. . .3164, 3165 Bills of Exchange 3171-3238 Form and Interpretation of a Bill 3171-3177 Days of Grace 3181 Presentment for Acceptance 3185-3189 Acceptance 3193-3199 Acceptance or Payment for Honor 3203-3207 Presentment for Payment 3211-3214 Excuse of Presentment and Notice 3218-3220 Foreign Bills 3224-3238 Promissory Notes 3244-3248 Checks 3254, 3255 Bonds, Bank-Notes, and Certificates of Deposit 3261, 3262 General Provisions 3268 CONTENTvS. DIVISION FOURTH. (Sees. 3274-3543.) PART I. RELIEF 3274-3423 Title I. Relief in General 3274, 3275 II. Compensatory Relief 3281-3360 Chapter I. Damages in General 3281-3294 Article I. General Principles 3281-3283 II. Interest as Damages 3287-3290 III. Exemplary Damages 3294 Chapter II. Measure of Damages 3300-3360 Article I. Damages for Breach of Contract 3300-3319 II. Damages for Wrongs 3333-3341 III. Penal Damages 3344-3348 IV. General Provisions 3353-3360 Title III. Specific and Preventive Relief 3366-3423 Chapter I. General Principles 3366-3369 II. Specific Relief 3375-3415 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 3399-3402 V. Rescission of Contracts 3406-3408 VI. Cancelation of Instruments 3412-3415 Chapter III. Preventive Relief 3420-3423 PART II. SPECIAL RELATIONS OF DEBTOR AND CREDITOR 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 3501-350*3 PART IV. MAXIMS OF JURISPRUDENCE 3509-3543 xix TABLE OF ERRORS IN CALIFORNIA REPORTS IN CITATION OF CODE SECTIONS. CIVIL CODE. § 14 erroneously cited as § 172, 137 C. 354, 356, correct cita- tion, 70 P. 459. § 29 erroneously cited for § 2910, 87 C. 15, 21, correct cita- tion, 25 P. 161, 162. § 43 erroneously cited for § 46, 124 C. 193, 199, correct citation, 56 P. 878, 880. § 46 erroneously cited as § 43, 124 C. 193, 199, correct citation, 56 P. 878, 880. § 82 erroneously cited for § 852, 88 C. 560, 565, correct citation, 26 P. 367, 368. § 132 erroneously cited for § 137, 79 C. 336, 339, correct cita- tion, 21 P. 838, 839. § 137 erroneously cited as § 132, 79 C. 336, 339, correct citation, 21 P. 838, 839. § 137 erroneously cited as § 137 C. C. P., 98 C. 320, 321, correct citation, 33 P. 114, 115. § 155 erroneously cited for § 156, 92 C. 653, 655, correct cita- tion, 28 P. 787. § 156 erroneously cited as § 155, 92 C. 653, 655, correct citation, 28 P. 787. § 167 erroneously cited as § 170, 137 C. 273, 276, same error, 92 A. S. 160, correct citation, 70 P. 21, 22, and 58 L. 941. § 170 erroneously cited for § 167, 137 C. 273, 276, same error, 92 A. S. 160, correct citation, 70 P. 21, 22, and 58 L. 941. § 170 erroneously cited for § 171, 70 C. 282, 285, same error, 11 P. 719, 720, 721. xxi TABLE OF ERRORS. § 170 erroneously cited for § 172, 71 C. 418, 422, same error, 12 P. 347, 348. § 171 erroneously cited as § 170, 70 C. 282, 285, same error, 11 P. 719, 720, 721. § 171 erroneously cited as § 172, 70 C. 282, 285, same error, 11 P. 719, 720, 721. § 172 erroneously cited for § 14, 137 C. 354, 356, correct cita- tion, 70 P. 459. § 172 erroneously cited as § 170, 71 C. 418, 422, same error, 12 P. 347, 348. § 172 erroneously cited for § 171, 70 C. 282, 285, same error, 11 P. 719, 720, 721. § 188 erroneously cited for § 188 Pen. C, 1" C. A. 246, 248, cor- rect citation, 81 P. 1087. (There is no § 188 C. C.) § 191 erroneously cited for § 291, 53 C. 123, 128. § 257 erroneously cited as § 257 C. C. P., 121 C. 468, 475, cor- rect citation, 53 P. 936, 939. § 291 erroneously cited as § 191, 53 C. 123, 128. § 292 erroneously cited for § 2927, 80 C. 348, 353, correct cita- tion, 22 P. 200, 201. § 305 erroneously cited as § 305 C. C. P., 127 C. 600, 637, cor- rect citation, 60 P. 424, 426. (There is no § 305 C. C. P.) § 308 erroneously cited as § 308 C. C. P., 127 C. 630, 631, 637, correct citation, 60 P. 424, 426. § 312 erroneously cited as C. C. P., 54 C. 149, 150. § 322 erroneously cited as C. C. P., 5 F. 403, 410, 412. § 327 erroneously cited for § 3275, 84 C. 420, 422, correct cita- tion, 24 P. 316, 317. § 331 erroneously cited as § 537, 82 C. 600, 602, correct cita- tion, 23 P. 134, 135. § 338 erroneously cited as § 388, 3 C. A. 109, 110, correct cita- tion, 84 P. 432, 433. § 349 erroneously cited as C. C. P., 5 F. 403, 408, 409, 410, 429. § 353 erroneously cited for § 355, 59 C. 22, 24. § 353 erroneously cited for § 853, 15 P. 439, 442. § 355 erroneously cited as § 353, 59 C. 22, 24. § 377 erroneously cited for C. C. P., 63 C. 483, 484. xxii TABLE OF ERRORS. § 388 erroneously cited for § 338, 3 C. A. 109, 110, correct cita- tion, 84 P. 432, 433. § 478 erroneously referred to as § 478 C. C. P., 101 C. 333, 334, correct citation, 35 P. 993. § 514 erroneously cited as § 2799, 80 C. 338, 341, correct cita- tion, 22 P. 254, 255. § 537 erroneously cited for § 331, 82 C. 600, 602, correct cita- tion, 23 P. 134, 135. § 593 erroneously cited as § 595, 119 C. 477, 483, same error, 51 P. 841, 843. § 595 erroneously cited as § 593, 119 C. 477, 483, same error, 51 P. 841, 843. § 648 erroneously cited for § 648 C. C. P., 127: C. 37, 39, cor- rect citation, 59 P. 206. § 648 erroneously cited in dis. op. for § 864, 64 P. 1000, 1007. § 656 erroneously cited for § 656 C. C. P., 108 C. 240, 244, cor; rect citation, 41 P. 299. § 700 erroneously cited for § 700 C. C. P., 70 C. 282, 286, same error, 11 P. 719, 721. § 731 erroneously cited for § 3479, 66 C. 171, 174, same error, 4 P. 1162, 1164. § 779 erroneously cited for § 779 C. C. P., 70 C. 553, 559, erro- neously cited in 12 P. 45"1, 454 for § 709 C. C. P. § 801 erroneously cited as § 811, 4 C. A. 18, 24, same error, 87 P. 213. § 811 erroneously cited as § 811 Pol. C, 81 C. 122, 125, correct citation, 22 P. 393, 394. § 811 erroneously cited for § 801, 4 C. A. 18, 24, same error, 87 P. 213. § 830 erroneously cited as § 880, 108 C. 179, 185, same error, 49 A. S. 76, 79, correct citation, 41 P. 289, 290. § 846 erroneously cited in dis. op. for § 864, 132 C. 523, 558. (There is no § 846 C. C.) § 852 erroneously cited as § 853, 80 C. 514, 518, correct cita- tion, 22 P. 294, 295. § 852 erroneously cited as § 82, 88 C. 560, 565, correct citation, 26 P. 367, 368. § 853 erroneously cited as § 353, 15 P. 439, 442. xxiii TABLE OF ERRORS. § 853 erroneously cited for § 852, 80 C. 514, 518, correct cita- tion, 22 P. 294, 295. § 863 erroneously cited as § 863 C. C. P., 95 C. 63, 74, correct citation, 30 P. 301, 303. § 863 erroneously cited as § 863 C. C. P., 144 C. 314, 321, cor- rect citation, 77 P. 942, 944. § 864 erroneously cited in dis. op. as § 846, 132 C. 523, 558, and in 64 P. 1000, 1007, as § 648. (There is no § 846 C. C.) § 870 erroneously cited as § 871, 133 C. 51, 52, same error, 65 I', 130 § 871 erroneously cited for § 870, 133 C. 51, 52, same error, 65 P. 130. § 880 erroneously cited for § 830, 108 C. 179, 185, same error, 49 A. S. 76, 79, correct citation, 41 P. 289, 290. § 952 erroneously cited for § 952 Pen. C, 138 C. 145, 147, same error, 70 P. 1089, 1090. (There is no § 952 C. C.) § 1033 erroneously cited for § 1053, 106 C. 203, 205, same error, 39 P. 531, 532. § 1040 erroneously cited as § 1040 C. C. P., 95 C. 63, 74, correct citation, 30 P. 301, 303. (There is no § 1040 C. C. P.) § 1052 erroneously cited for § 1053, 128 C. 627, 633, same error, 61 P. 371, 372. § 1053 erroneously cited as ^ 1033, 106 C. 203, 205, same error, 39 P. 531, 532. § 1053 erroneously cited at § 1052, 128 C. 627, 633, same error, 61 P. 371, 372. § 1105 erroneously cited as § 1105 C. C. P., 88 C. 263, 267, same error, 26 P. 106, 108. § 1114 erroneously cited for § 1141, 106 C. 441, 446, correct citation, 39 P. 853, 855. § 1141 erroneously cited as § 1114, 106 C. 441, 446, correct cita- tion, 39 P. 853, 855. § 1167 erroneously cited for § 1667, 81 C. 507, 509, correct citation, 22 P. 883. § 1185 erroneously cited as § 1189, 131 C. 504, 507, feame error, 82 A. S. 374, 377, same error, 63 P. 840, 841. § 1186 erroneously cited as § 1186 C. C. P., 80 C. 65, 67, cor- rect citation, 22 P. 69, 70. xxiv TABLE OF ERRORS. § 1187 erroneously cited as § 1189, 98 C. 465, 468, same error, 35 A. S. 192, 195, correct citation, 20 L. 702, 33 P. 480, 481. § 1189 erroneously cited for § 1185, 131 C. 504, 507, same error, 82 A. S. 374, 377, same error, 63 P. 840, 841. § 1189 erroneously cited for § 1187, 98 C. 465, 468, same error, 35 A. S. 192, 195, correct citation, 20 L. 702, 33 P. 480, 481. § 1191 erroneously cited as § 1191 C. C. P., 80 C. 65, 67, cor- rect citation, 22 P. 69, 70. § 1196 erroneously cited for § 1996, 89 C. 547, 550, correct cita- tion, 26 P. 1095, 1096. § 1197 erroneously cited for § 1997, 89 C. 547, 550, correct citation, 26 P. 1095, 1096. § 1223 erroneously cited for § 1629, 101 C. 528, same error, 40 A. S. 73, correct citation, 36 P. 18. § 1223 erroneously cited for § 1629, 32 P. 885, 887. § 1253 erroneously cited for § 1263, 52 C. 629, 630. § 1263 erroneously cited as § 1253, 52 C. 629, 630. § 1265 erroneously cited as § 1365, 1 P. 479, 480. § 1265 erroneously cited as 1265 C. C. P., 80 C. 208, 209, same error, 13 A. S. 116, 117, correct citation, 22 P. 141, 142; also erroneously cited as §1265 C. C. in 111 C. 484, 487, indefinitely cited, 44 P. 167. (There is no § 1265 C. C. P.) § 1273 erroneously cited for § 1277, 70 C. 140, 142, same error, 11 P. 587, 588. § 1277 erroneously cited as § 1273, 70 C. 140, 142, same error, 11 P. 587, 588. § 1307 erroneously cited for § 1307 C. C. P., 148 C. 233, 236, same error, 82 P. 962, same error, 113 A. S. 231, 233. § 1312 erroneously cited for § 1312 C. C. P., 148 C. 233, 236, same error, 82 P. 962, same error, 113 A. S. 231, 233. § 1313 erroneously cited for § 1313 C. C. P., 148 C. 233, 236, same error, 82 P. 962, same error, 113 A. S. 231, 233. §1314 erroneously cited for § 1314 C. C. P., 148 C. 233, 236, same error, 82 P. 962, same error, 113 A. S. 231, 233. § 1359 erroneously cited as § 1360, 142 C. 453, 456, correct cita- tion, 76 P. 41, 42. XXV TABLE OP ERRORS. § 1360 erroneously cited for § 1359, 142 C. 453, 456, correct citation, 76 P. 41, 42. § 1365 erroneously cited for § 1265, 1 P. 479, 480. § 1369 erroneously cited as § 1569, 107 C. 303, 308, correct cita- tion, 40 P. 558, 560. § 1386 omitted from opinion, 132 C. 523, 563, printed in 60 P. 442, 443. § 1386 erroneously cited as § 1386 C. C. P., 152 C. 201, 207, correct citation, 92 P. 184, 186. § 1405 erroneously cited as § 1445, 18 P. 409. § 1421 erroneously cited as § 1721, 149 C. 496, 499, correct cita- tion, 86 P. 1081, 1082. § 1445 erroneously cited for § 1405, 18 P. 409. § 1473 erroneously cited as § 1473 C. C. P., 86 C. 184, 187, same error, 24 P. 1005. § 1487 erroneously referred to in dis. op., 63 C. 129, 139. § 1542 erroneously cited for § 2617, 86 C. 248, 253, same error, 21 A. S. 33, 35, 36, same error, 24 P. 1018, 1019. § 1569 erroneously cited for § 1369, 107 C. 303, 308, correct citation, 40 P. 558, 560. § 1543 erroneously cited for § 2618, 86 C. 248, 253, same error, 21 A. S. 33, 35, 36, same error, 24 P. 1018, 1019. § 1544 erroneously cited for § 2619, 86 C. 248, 253, same error, 21 A. S. 33, 35, 36, same error, 24 P. 1018, 1019. § 1572 erroneously cited as § 1752, 152 C. 148, 157, correct cita- tion, 92 P. 78, 82. § 1623 erroneously cited for § 1624, subd. 5, 88 C. 434, 436, correct citation, 26 P. 360, 361. § 1624 erroneously cited as § 1624 C. C. P., 80 C. 90, 97, same error, 13 A. S. 101, 107, correct citation, 22 P. 57, 59. § 1624 erroneously cited as § 1623, 88 C. 434, 436, correct cita- tion, 26 P. 360, 361. § 1624 erroneously cited as § 1624 C. C. P., 119 C. 239, 241, same error, 51 P. 333, 334. § 1624 erroneously cited as § 1624 C. C. P., 4 C. A. 109, 112, correct citation, 87 P. 255. § 1629 erroneously cited as § 1223, 32 P. 885, 887. § 1629 erroneously cited as § 1223, 101 C. 522, 528, same error, 40 A. S. 73, correct citation, 36 P. 18. xxvi TABLE OF TOllP.OKS. § 1667 erroneously cited as § 1167, 81 C. 507, 509, correct cita- tion, 22 P. 883. § 1697 erroneously cited as § 1697 C. C. P., 129 C. 301, 305, correct citation, 61 P. 937. § 1721 erroneously cited for § 1421, 149 C. 496, 499, correct citation, 86 P. 1081, 1082. § 1752 erroneously cited for § 1572, 152 C. 148, 157, correct citation, 92 P. 78, 82. § 1828 erroneously cited as "Civ. Code p. 779," 1 C. A. 488, 491, same error, 82 P. 686. S 1858 erroneously cited as "Civ. Code p. 779," 1 C. A. 488, 491, same error, 82 P. 686. § 1913 erroneously cited for § 1913 C. C. P., 114 C. 258, 261, same error, 55 A. S. 66, correct citation, 46 P. 82, 83, 35 L. 492. § 1942 erroneously cited as § 1942 C. C. P., 13 P. 866, 868. § 1957 erroneously cited for § 2957, 106 C. 673, 680, correct citation, 39 P. 1071. 1073. § 1996 erroneously cited as § 1196, 89 C. 547, 550, correct cita- tion, 26 P. 1095, 1096. § 1997 erroneously cited as § 1197, 89 C. 547, 550, correct cita- tion, 26 P. 1095, 1096. § 2101 erroneously cited for § 2201, 118 C. 648, 653, correct citation, 50 P. 775, 40 L. 78, 79. § 2117 erroneously cited for § 3117, 125 C. 684, 685, correct citation, 58 P. 297, 296. § 2201 erroneously cited as § 2101, 118 C. 648, 653, correct cita- tion, 50 P. 775, 40 L. 78, 79. § 2216 erroneously cited as § 2216 C. C. P., 95 C. 63, 74, cor- rect citation, 30 P. 301, 303. (There is no § 2216 C. C. P.) § 2290 erroneously cited for § 2219, 125 C. 227, 230. correct citation, 57 P. 894. S 2219 erroneously cited as § 2290, 125 C. 227, 230. correct cita- tion, 57 P. 894. § 2220 erroneously cited as § 2320. 70 C. 449. 453, correct cita- tion, 11 P. 659. 661. § 2229 erroneously cited as § 2239. 142 C. 638, 641, same error. 76 P. 486, 487. XXV ii TABLE OF ERRORS. § 2235 erroneously cited for § 2395, 54 C. 439, 440. § 2237 erroneously cited as § 2237 C. C. P., 5 C. A. 228, 235, correct citation, 90 P. 39, 42. (There is no § 2237 C. C. P.) § 2239 erroneously cited for § 2229, 142 C. 638, 641, same error, 76 P. 486, 487. § 2306 erroneously cited as § 2306 C. C. P., 87 C. 256, 262, same error, 22 A. S. 243, 246, correct citation, 25 P. 407. 408. § 2320 erroneously cited for § 2220, 70 C. 449, 453, correct citation, 11 P. 659, 661. § 2358 erroneously cited for § 2368, 61 C. 405, 429. § 2368 erroneously cited as § 2358, 61 C. 405, 429. § 2395 erroneously cited as § 2235, 54 C. 439, 440. § 2617 erroneously cited as § 1542, 86 C. 248, 253, same error, 21 A. S. 33, 35, 36, same error, 24 P. 1018, 1019. § 2618 erroneously cited as § 1543, 86 C. 248, 253, same error, 21 A. S. 33, 35, 36, same error, 24 P. 1018, 1019. § 2619 erroneously cited as § 1544, 86 C. 248, 253, same error, 21 A. S. 33, 35, 36, same error, 24 P. 1018, 1019. § 2711 erroneously cited for § 2911, 92 C. 382, 387, correct cita- tion, 28 P. 573, 575. § 2799 erroneously cited for § 514, 80 C. 338, 341, correct cita- tion, 22 P. 254, 255. § 2809 erroneously cited for § 2899, 61 C. 396, 399. § 2887 erroneously cited for § 2997, 125 C. 596, 599, correct citation, 58 P. 186, 187. (There is no § 2887 C. C.) § 2899 erroneously cited as § 2809, 61 C. 396, 399. § 2903 erroneously cited for § 2993, 61 C. 405, 429. § 2910 erroneously cited as § 29, 87 C. 15, 21, correct citation, 25 P. 161, 162. § 2911 erroneously cited as § 2711, 92 C. 382, 387, correct cita- tion, 28 P. 573, 575. § 2922 erroneously referred to, 58 C. 147, 152. § 2927 erroneously cited as § 292, 80 C. 348, 353, correct cita- tion, 22 P. 200, 201. § 2941 erroneously cited as § 2951, 64 C. 273, 274, same error, 30 P. 818. xxviii TABLE OF ERRORS. § 2951 erroneously cited for § 2941, 64 C. 273, 274, same error, 30 P. 818. § 2957 erroneously cited as § 1957, 106 C. 673, 679, 680, correct citation, 39 P. 1071, 1073. § 2986 erroneously cited as § 2986 C. C. P., 123 C. 643, 648, correct citation, 56 P. 468, 470. (There is no § 2986 C. C. P.) § 2987 erroneously cited as § 2987 C. C. P., 123 C. 643, 648, correct citation, 56 P. 468, 470. (There is no § 2987 C. C. P.) § 2988 erroneously cited as § 3988, 101 C. 445, 453, correct cita- tion, 35 P. 1035, 1038. § 2993 erroneously cited as § 2903, 61 C. 405, 429. § 2997 erroneously cited as § 2887, 125 C. 596, 599, correct citation, 58 P. 186, 187. § 3117 erroneously cited as § 2117, 125 C. 684, 685, correct citation, 58 P. 297, 298. § 3124 erroneously cited as § 3134, 68 C. 545, 548, correct cita- tion, 9 P. 942, 944. § 3134 erroneously cited for § 3124, 68 C. 545, 548, correct cita- tion, 9 P. 942, 944. § 3275 erroneously cited as § 327, 84 C. 420, 422, correct cita- tion, 24 P. 316, 317. § 3278 erroneously cited for § 3287, 3 C. A. 263, 266, same error, 84 P. 159. (There is no § 3278 C. C.) § 3287 erroneously cited as § 3278, 3 C. A. 263, 266, same error, 84 P. 159. § 3300 erroneously cited as § 3330, 130 C. 309, 314, citation of § 3300 omitted, 62 P. 562, 563. § 3330 erroneously cited for § 3300, 130 C. 309, 314, citation of § 3300 omitted, 62 P. 562, 563. § 3340 erroneously cited for § 3440, 93 C. 393, 394, same error, 29 P. 70. § 3440 erroneously cited as § 3340, 93 C. 393, 394, same error. 29 P. 70. §3479 erroneously cited as §731, 66 C. 171, 174, same error. 4 P. 1162, 1164. § 3502 erroneously cited for § 3532, 126 C. 413, 417, correct citation, 58 P. 914, 915. xxix TABLE OF ERRORS. § 3532 erroneously cited as § 3502, 126 C. 413, 417, correct cita- tion, 58 P. 914, 915. § 3543 erroneously cited as § 3543 C. C. P., 54 C. 140, 143. (There is no § 3543 C. C. P.) § 3988 erroneously cited for § 2988, 101 C. 445, 453, correct citation, 35 P. 1035, 1038. (There is no § 3988 C. C.) "Civ. Code p. 779" erroneously cited for § 1858, 1 C. A. 488, 491, same error, 82 P. 686. ABBREVIATIONS IN POCKET CODE. (Other than the usual.) A. C. — American and English Annotated Cases. A. D. — Americai. Decisions. A. R. — American Reports. A. S. — American State Reports. C. — California Reports. C. A. — California Appellate Reports. C. A. D. — California Appellate Decisions. C. D. — California Decisions. Cent. Dig. — Century Digest. Cyc. — Cyclopedia of Law and Procedure. Decn. Dig'. — Decennial Digest. Encyc. L. — American and English Encyclopedia of Law (2nd ed.). Encyc. P. — Encyclopedia of Pleading and Practice. F. S. A.- — Federal Statutes Annotated. L. — Lawyers' Reports Annotated. L. ed. — Lawyers' edition of United States Reports. L. N. S. — Lawyers' Reports Annotated, New Series. Obiter Dig. — Obiter Digest of the U. S. Supreme Court Reports. P. — Pacific Reporter. W. & P. — Words and Phrases Judicially Defined. CIVIL CODE. AN ACT TO ESTABLISH A CIVIL CODE. [Approved March 21, 1872.] The people of the state of California, represented in the sen- ate 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 divisions, as follows: I. The first relating to persons. II. The second to property. III. The third to obligations. IV. The fourth contains general provisions relating to the three preceding divisions. HlMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. Cited, referred to, and amended how. — See post, § 21. Krrr's C. C. 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 [repealed]. § 9. Business days. § 10. Computation of time. § 11. Certain acts not to be done on holidays. § 12. Joint autliority construed. § 13. Words and phrases, how construed. § 14. Certain terms defined. § 15. Good faith, what constitutes [repealed]. § 16. Degrees of care and negligence [repealed]. § 17. Degrees of negligence [repealed]. § 18. Notice, actual and constructive. § 19. Constructive notice [wlien deemed]. § 20. Effect of repeal. § 21. Tliis act, how cited. § 2. >VHE\ THIS (ODE TAKES EFFECT. This code takes effect at twelve o'cloclc noon on the first day of January, eighteen hundred and seventy-three. HiNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. Effect of codes generally, and their proper construction — As to, see Kerr's Cyc. Pol. C. §§ 4478 et seq. and notes. Effect of Civil Code — As to, see Kerr's Cyc. C. C. §§3-19 and notes. See Kerr's Cyc. Pol. C. § 4478 and note pars. 2-4, and § 1-179. and note par. 2. Same — Codes considered passed on first day of session of legislature at the term at which adopted. — See Kerr's Cyc. Pol. C. § 4478 and note pars. 2-4, and § 3891 and note. Similar provisions in the otlier codes — As to, see § 2 of the respective codes. Publication of the codes — As to, see Kerr's Cyc. Pol. C. $ 4 494 and note pars. 1, 2. 3 §1 3, 4 CIVIL CODE. §3. NOT RETROACTIYE. No part of it is retroactive, unless expressly so declared. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 59 C. 288, 289 (applied); 63 C. 261, 263 (applied); 95 C. 184, 201, 30 P. 213, 27 P. 30, 16 L. 646 (construed in dis. op.); 106 C. 673, 680, 39 P. 1071 (construed); 133 C. 524, 527, 65 P. 1034 (applied). Discussion of constitutional question. — See 16 L. 646. Impairing- vf^ted rights — As to, see Kerr's Cyc. Pol. C. § 8 and note. Law enlarging- period of limitation upon existing contracts, as to efEect of, see 16 L. 646; also Kerr's Cyc. C. C. P. § 312 note pars. 126-130. When code is silent the common law governs. — See Kerr's Cyc. C. C. § 4 note pars. 19, 20. § 4. EULES OF CONSTRUCTION. 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 to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice. History: Enacted March 21, 1872; amended by the Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 332; amendment declared unconstitutional, 134 Cal. 291, 86 A. S. 257, 66 P. 478, 55 L. 833. See Code Civ. Proc, Pt. I, introductory note. , See Kerr's Cyc. C. C. for 27 pars, annotation. 51 C. 255, 257, 258 (applied); 54 C. 616, 619 (applied); 66 C. 432, 434, 6 P. 7, 9 (cited as controlling); 67 C. 385, 386, 7 .P. 766 (referred to); 69 C. 255, 370, 10 P. 674 (applied); 74 C. 586, 590, 16 P. 493 (applied); 75 C. 1, 56, 16 P. 345, 370 (cited in dis. op. as controlling); 96 C. 532, 576, 31 P. 915, 922, 19 L. 40 (applied); 98 C. 531, 551, 33 P. 460, 21 L. 380 (construed); 104 C. 298, 299, 302, 37 P. 1049, 1050 (applied as controlling); 105 C. 526, 558, 38 P. 94, 722, 28 L. 773 (applied); 107 C. 1, 4, 40 P. 15, 28 L. 414 (cited); 123 C. 198, 201, 55 P. 902 (cited); 124 C. 389, 397, 57 P. 227, 45 L. 793 (cited); 125 C. 65, 68, 57 P. 677 (cited with other sections); 127 C. 122, 126, 59 P. 394, 396 (applied); 136 C. 138, 142, 89 A. S. 120, 68 P. 587 (cited with other sections); 145 C. 713, 715, 79 P. 425, 426 (applied); 146 C. 245. 247, 79 P. 891, 106 A. S. 23 (applied); 146 C. 455, 465, 4 EXISTING LAWS— ACTIONS. §§ 5, 6 80 P. 700, 106 A. S. 53, 2 A. C. 726 (applied); 54 F. 320, 331 (applied as to survival of action for injuries to estate of dece- dent). §5. PKOVISIONS SIMILAR TO EXISTING LAWS, IIOW CONSTRUED. The provisions of this code, so far as they are substantially the same as existing statutes or the com- mon law, must be construed as continuatious thereof, and not as new enactments. History: Enacted March 21, 1872; amended March 16, 1901, Stats, and Amdts. 1900-1, p. 332; unconstitutipnal, see history, § 4 ante. See Kerr's Cyc. C. C. for G pars, annotation. 75 C. 1, 69, 16 P. 345 (erroneously cited for §4); 87 C. 643, 647, 25 P. 922, 923 (applied); 96 C. 490, 492, 493, 31 P. 560 (con- strued); 98 C. 30, 33, 32 P. 807 (applied); 104 C. 570, 584, 38 P. 414, 32 L. 595 (referred to by the court as in harmony with construction given); 120 C. 488, 491, 493, 494, 52 P. 843, 40 L. 476 (construed, contention of counsel not sustained); 121 C. 244. 246, 53 P. 656 (cited); 130 C. 380, 382, 62 P. 613 (construed); 136 C. 138, 142, 89 A. S. 120, 68 P. 587 (cited in connection with other sections); 57 F. 845, 848 (construed). Repeal does not revive pre-existing law. — See Kerr's Cyc. Pol. C. §18 and note; 44 Cent. Dig. col. 2794, §§246, 247; 26 Encyc. of L. 744-758. Same — Effect of repeal after judgment. — 1 A. C. 220; 26 Encyc. of L, 748. §6. ACTIONS, ETC., NOT AFFECTED. No action or pro- ceeding commenced before this code takes effect, and no right accrued, is affected by its provisions. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 95 C. 184, 202, 30 P. 213, 216, 16 L. 646 (referred to). Similar provisions in other codes — As to, see Kerr's Cyc. Pol. C. § 8 and note; Kerr's Cyc. C. C P. § 8 and note. Accrued rights — Effect of codes on. — See Kerr's Cyc. Pol. C. § 8 and note. Claim barred by statute of limitation, legislature cannot revive. — See Kerr's Cyc. Pol. C. § 8 and note; also Kerr's Cyc. C. C. P. § 8 and note par. IS. Code rules applicable, when, as to, see Kerr's Cyc. C. C. § 6 and note par. 12. 5 § 7 CIVIL CODE. Effect of codes on pending actions and accrued rights. — See Kerr's Cyc. Pol. C. § 8 and note; Kerr's Cyc. C. C. P. § 8 note pars. 7-9. Legislature — Revival of claim barred by statute of limita- tions is not permissible. — See Kerr's Cyc. Pol. C. § 8 and note; Kerr's Cyc. C. C. P. § 8 and note. Limitation of actions — Power of legislature over, — as to, see Kerr's Cyc. Pol. C. § 9 and note; Kerr's Cyc. C. C. P. § 8 and note pars. 13-22. Remedial rights, as to change or modification of by legisla- ture. — See note to Kerr's Cyc. C. C. P. § 8 pars. 12 et seq. When vested, etc. — As to, see Kerr's Cyc. Pol. C. § 8 and note; Kerr's Cyc, C. C. P. § 8 note pars. 7-11. § 7. HOLIDAYS. 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 in September, the twelfth day of October to be known as "Discovery Day," 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 this state for a public fast, thanksgiv- ing 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, the twelfth day of Octo- ber or the twenty-fifth day of December fall upon a Sunday, the Monday following Is a holiday. Every Saturday from twelve o'clock noon until twelve o'clock midnight is a holiday as regards the transaction of business in the public offices of this state, and also in politi- cal divisions thereof where laws, ordinances or charters pro- vide that public offices may be closed on holidays; provided, this shall not be construed to prevent or invalidate the issu- ance, filing, service, execution or recording of any legal pro- cess or written instrument whatever on such Saturday after- noons. Hlstorr: Enacted March 21, 1872; amended 1880, Code Amdts. 1880 (C. C. pt.), p. 9, 1899, Stats, and Amdts. 1889, p. 47; 1893, Stats, and Amdts. 1893, p. 186; 1897, Stats, and Amdts. 1897, p. 14; March 18, 1907, Stats, and Amdts. 1907. p. 565; February 19, 1909. Stats, and Amdts, 1909, p. 23. 6 ni'SINESS DAYS— COMPUTING TIME. §§ g-lQ Son Kerr's Cyc. C. C. for 4 pars, annotation. Holidays — Exclusion and Inclu.sion In computing tinif. — Soo Kerr's Cyc. C. C. § 10 and note; Kerr's Cyc. Pol. C. SS 7. 8. 11 and notes; Kerr's Cyc. C. C. P. SS 10-13 and notes. Same — PuMlcatlon of notice on — As to validity of, see Kerr's Cyc. C. C. I 10 note par. 11; Kerr's Cyc. C. C. P. 15 10-13 and notes. Same — Service of legal process on — As to validity of, see Kerr's Cyc. C. C. { 10 note par, 12; Kerr's Cyc. C. C. P. {S 10-13 and notes. Special holidays declared by governor are Invalid. — Sr.>: EruKteil March 21. 1872. Kerr's Cyc. C. C V. fur r. 1 pars. nnnotatl — As («> ffrnerally, 8«'e Ken $ 10 and note; Kto. Sanie — Fractions of a day consldereil when. — See Kerr's Cyc. C. C. I 10 n«tf pars. 27. 28; Kirr's Cyc. C. C. V. I 12 note par. 11. S.'inii — Inclusive and exclusive method. — .See Kerr's Cyc. C C P. S 12 and note; Kerr's Cyc. C. C. i 10 note pars. 3-9. Same — Holidays not counted. — See Kerr's Cyc. C. C. I 10 note pars. 13-20. 7 §§ 11-13 CIVIL CODE. Tear, week, and day, — as to, see Kerr's Cyc. Pol. C. § 3255 and note; Kerr's Cyc. C. C. P. § 17 and note pars. 18, 19, 21; also 2 W. & P. 1832; 8 W. & P. 7427, 7551. § 11. CERTAIN ACTS HOT TO BE DONE ON HOLIDAYS. Wherever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be perfc-T^ed 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 110 C. 547, 551, 42 P. 1079 (applied); 136 C. 185, 193, 68 P. 601 (applied); 136 C. 253, 256, 68 P. 707, 70S (applied). § 12. JOINT AUTHORITY CONSTRUED. Words giving a joint authority to three or more public officers or other per- sons are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 100 C. 121, 132, 34 P. 630 (applied); 2 C. A. 453, 459, 83 P. 580, 582 (applied). § 13. WORDS AND PHRASES, HOW CONSTRUED. Words and phrases are construed accordiug to tlie context and the approved usage of the language; but teclmical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in the suc- ceeding section, are to be construed according to sucli pecul- iar and appropriate meaning or definition. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 75 C. 1, 73, 16 P. 345, 370, 378 (applied); 131 C. 433, 435, 65 P. 729 (referred to in discussion); 136 C. 460, 464, 69 P. 83 (applied); 138 C. 364, 366, 71 P. 446 (applied); 145 C. 82, 84, 78 DEFINITION OF TERMS. § 14 P. 340, 341, 104 A. S. 17 (applied); 145 C. 407, 409, 78 P. 964, 965, 104 A. S. 58 (applied); 146 C. 728, 733, 81 P. 119, 121 (applied). Contracts, as to, see Kerr's Cyc. C. C. §§ 1644, 1645 and notes; Kerr's Cyc. C. C. P. § 1861 and note. §14. CERTAIN TERMS DEFINED. Words used in this code in the present tense include the future as well as the present; Mords used in the masculine gender include the feminine and neuter; the singular number includes the plu- ral, and the plural the singular; the word person includes a corporation as well as a natural person; county includes city and county; writing includes printing and typewriting; oath includes affirmation or declaration; and ["testify"] eyery mode of oral statement, under oath or affirmation, is embraced by the term "testify," and ["depose"] every written one in the term "depose"; signature or subscription includes mark, when the person cannot write, [1] his name being written near it, [2] by a person who writes his own name as a witness; provided, that when a signature is by mark it must, in order that the same may be acknowledged or may serve as the signature to any swoi'ii statement, [1] be witnessed by two persons, [2] who must subscribe their own names as witnesses thereto. The following words have in this code the signifi- cation attached to them in this section, unless otherwise apparent from the context: 1. The word "property" includes property, real and per- sonal ; 2. The words "real property" are coextensive with lands, tenements, and hereditaments; 3. The words "personal proi)erty" include money, goods, chattels, things in action, and evidences of debt: 4. The word "month" means a calendar month, unless other- wise expressed; 6. The word "will" includes codicil; 6. The word "section," wherever hereinafter employed, refers to a section of this code, unless some other code or statute is expressly mentioned. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 181; Code Commission amendment,' Act 9 §§ 15-18 CIVIL CODE. March 19, 1901, Stats, and Anidts. 1900-1, p. 332; unconstitutional, see history, § 4, ante; amended March 25, 1903, Stats, and Amdts. 1903, p. 407. See 'Kerr's Cyc. C. C. for 78 pars, annotation. 54 C. 107, 109 (construction of subd. 28 of feection as origi- nally passed, — repealed by amendments 1873-4); 58 C. 373, 375' (construction of subd. 5 as originally enacted; substantially same as present provision); 62 C. 182, 184 (applied); 72 C. 55, 57, 12 P. 49, 50 (applied); 73 C. 320, 322, 14 P. 876, 877 (applied); 91 C. i!3«, 248, 27 P. 604, 606 (construed and applied); 96 C. 598, 600, 31 P. 553, 22 L. 370 (applied); 110 C. 387, 396, 52 A. S. 104, 42 P. 815, 30 L. 460 (construed); 113 C. 345, 353 45 P. 680 (construed and applied); 131 C. 590, 591, 594, 63 P. 1013 (con- strued and applied); 133 C. 69, 71, 65 P. 142 (cited with other sections); 134 C. 287, 289, 66 P. 324 (referred to); 135 C. 167, 172, 67 P. 52 (referred to); 137 C. 354, 356 (erroneously cited as §172), 70 P. 459 (correct citation); 140 C. 406, 409, 73 P. 1086 (applied); 141 C. 113, 115, 74 P. 773 (construed and applied); 142 C. 529, 539, 76 P. 243 (applied). Boundaries — Words used in, — as to, see Kerr's Cyc. Pol. C. §§ 3903-3907 and notes. § 15. GOOD FAITH, >VHAT CONSTITUTES (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 182. § 16. DEGREES OF CARE AND NEGLIGENCE (repealed). History: Enacted March 21, 1872; repealed' March 30, 1874, Code Amdts. 1873-4, p. 182. See Kerr's Cyc. C. C. for 3 pars, annotation. §17. DEGREES OF NEGLIGENCE (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 182. See Kerr's Cyc. C. C. for 2 pars, annotation. 66 C. 579, 590, 5 P. 637, 645, 56 A. R. 119 (repeal of section referred to). § 18. NOTICE, ACTUAL AND CONSTRUCTIVE. Notice is: 1. Actual — which consists in express information of a fact; or, 2. Constructive — which is imputed by law. History: Enacted March 21, 1872. 10 ACTUAL NOTICE. § 18 See Kerr's Cyc. C. C. for 11 pars, annotation. 97 C. 575, 584, 33 A. S. 209, 32 P. 579, 581, 21 K 33 (referred to); 118 C. 258, 260, 50 P. 380 (applied): 119 C. 447, 451, 51 P. 693 (applied); 131 C. 582, 587, 589, 63 P. 915 (applied). ACTUAL NOTICE. As to generally.— See 21 Encyc. of L. 582; 37 Cent. Dig. 1465, § 1. Acts of agents of government. — See 37 Cent. Dig. col. 1471, § 8. Advertisements and publications of facts. — See 62 A. D. 320; 37 Cent. Dig. col. 1471, §9; see also "Publications authorized by law," this note. Agent, notice to — Principal charged witli, when. — See 3 A. C. 441; 39 A. R. 322; 24 A. S. 228; 2 Obiter Dig. 352; 1 L. 217; 1 L. 563; 2 L. 734; 10 L. 705; 21 L. 342; 32 L. 62. Same — Sub-agent, notice to — Effect of. — See 21 L. 340. Attorney, notice to — Notice to client. — 3 A. C. 441; see also "Agent," this note. - Cestui que trust, charged with notice to trustee. — See 2 Obiter Dig. 352. Corporation — Charged with notice to director, wlien. — See 39 A. R. 84. Same — Charged with notice to officer or agent, when. — 6 A. C. 679; 36 A. D. 188. Evidence — Competency and sufficiency of. — See 21 Encyc. of L,. 589; 37 Cent. Dig. col. 1490, §§ 39, 40. Same — Memory of facts constituting notice. — See Moore on Facts, §§ 795, 796, 831. Same — Of unrecorded deed, degree of proof. — See Moore on Facts, § 44. Same — Proof under averment of due notice. — Sec 14 PL & Pr. 1070. Same— Questions for jury. — Sec 21 Encyc. of L. 589; 37 Cent. Dig. col. 1492, § 41. Judicial proceedings. — See 37 Cent. Dig. col. 1471, § 10. Knowledge — Of facts and circumstances. — See tit. "Facts and circumstances," note § 19, post. Same — Of unrecorded deed. — See 13 A. D. 705. Same — Or express notice. — See 37 Cent. Dig. col. 1466. § 2. Necessity of notice — As a condition of due process. — See 6 L. 657; 11 L. 225. Same — As to generally. — See 37 Cent. Dig. col. 1472, § 13. Same — Facts within knowledge of party. — See 37 Cent. Dig. col. 1473, i 14. Same — Waiver of notice. — See 37 Cent. Dig. col. 1473. § 15. Pleading — Allegation of notice, necessary when. — See 14 PI. & Pr. 1066-1069; 37 Cent. Dig. col. 1489, §37. Same— Same— Alder by verdict.— See 37 Cent. Dig. col. 1490, §38. 11 § 19 CIVIL CODE. Same — Averment of excuse or waiver. — See 14 PI. & Pr. 1069. Same — Manner of alleging- notice. — See 14 PI. & Pr. 1071. Same — Answer denying notice. — See 14 PI. & Pr. 1072. Possession, by actual. — See 2 L. 201; 2 L. 734; 4 L. 222; 8 L. 211; 11 L. 661; 37 Cent. Dig. col. 1472, §11; see also tit. "Pos- session of land," etc., note § 19, post. Principal charged with notice to agent, when. — See "Agent," this note. Public statutes.— See 21 Encyc. of L. 588; 37 Cent. Dig. col. 1472, § 12. Publications authorized by law. — See 62 A. D. 320; 37 Cent. Dig. col. 1471; § 9; see also "Advertisement," etc., this note. Same — In foreign language. — See 14 L. 64. Question of fact when, question of law when. — See 21 Encyc. of L. 589. Requisites and sufficiency of formal notice. — See 21 Encyc. of L. 582-589; 37 Cent. Dig. col. 1474, §§16-21. Service of formal notice — Method and sufficiency of. — See 37 Cent. Dig. col. 1476, §§ 22-36. Signing notice by proxy. — See 22 L. 298. Sub-agent — Notice to, effect of. — See 21 L. 340; see also "Agent," this note. Telephone — Notice by, insufficient when. — See 37 Cent. Dig. col. 1476, § 21. Time of — First and last days in computing. — See 49 L. 221. "Trustee" — Word in written instrument, whether imparts notice. — See 82 A. S. 513. Waiver of notice. — See 37 Cent. Dig. col. 1473, § 15. § 19. CONSTRUCTIVE NOTICE [AVHEN DEE3IED]. Every person who has had actual notice of circumstances sufficient to put a prudent man upon 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 182. See Kerr's Cyc. C. C. for 104 pars, annotation. 77 C. 449, 456, 19 P. 820, 823 (referred to); 82 C. 621, 626, 23 P. 193, 195 (applied); 97 C. 575, 584, 32 P. 579, 581, 33 A. S. 209, 21 L. 33 (referred to); 118 C. 258, 260, 50 P. 380, 381 (quoted); 119 C. 447, 451, 51 P. 693, 695 (applied); 120 C. 282, 284, 52 P. 585, 586 (applied); 122 C. 98, 101, 54 P. 528, 529 (applied); 122 C. 517, 521, 55 P. 401, 402 (applied); 123 C. 163, 166, 55 P. 759, 760 (referred to as an equitable rule) ; 128 C. 221, 224, 60 P. 679, 681 12 CONSTRUCTIVE NOTICE. § 20 (quoted); 131 C. 582, B8Z, 63 P. 915, 917 (referred to); 139 C. 246, 257, 72 P. 997, 1001 (applied in dis. op.); 140 C. 34. 46, 73 P. 803, 806 (applied); 150 C. 289, 318, 88 P. 356, 358, 8 L. N. S. 692 (applied); 151 C. 242, 253, 90 P. 538, 543 (applied). CONSTRUCTIVE NOTICE. As to what is, and nature — Generally. — See 21 Encyc. of L. 582; 45 A. R. 184; 1 L. 192; 2 L. 734; 4 L. 717; 37 Cent. Dig. col. 1466, § 3. Same — Is mere evidence of notice. — See 2 Obiter 'Dig. 351. Corporate by-law, as. — See 25 L. 48. Facts or circumstances putting on inquiry — As to generally. — Sec 23 A. D. 47; 34 A. S. 399; 21 Encyc. of L. 584-588; 37 Cent. Dig. col. 1468, §4; 2 Obiter Dig. 351. Same — Failure to inquire, effect of. — See 37 Cent. Dig. col. 1470, § 6. Same — Presumption of notice. — See 37 Cent. Dig. col. 1470, §8. Same — Rumors. — See 37 Cent. Dig. col. 1470, § 5. Facts within knowledge of party. — See 37 Cent. Dig. col. 1473,. § 14; see also "Knowledge," note § 18, ante. Newspaper articles and publications authorized by law. — See 62 A. D. 320; 37 Cent. Dig. col. 1471, §9; see also tit. "Publlca- 'tions," etc., note § 18, ante. Paper expressly referring to another paper — Gives notice of contents of latter, when. — See 16 A. D. 754; 2 Obiter Dig. 351. Pleading — Necessity for — Form and sufficiency of. — See tit. "Pleading," note § 18, ante. Possession of land, as notice. — See Kerr's Cyc. C. C. § 19, note pars. 53 et seq.; § 1217 and note; see also tit. "Possession," etc., note § 18, ante. Recital in deed or other writing. — See 16 A. D. 754; 1 L. 191; 7 L. 840; 2 Obiter Dig. 351. Record — Unauthorized, as notice. — See 1 L. 192. Recordation — Notice by. — See Kerr's Cyc. C. C. §§ 1158, 1213 and notes. Recorded instrument — Recitals in — Notice to parties. — See Kerr's Cyc. C. C. § 1217 and note. Sufficiency of.— See 2 Obiter Dig. 351. Unrecorded deed — Facts sufficient to put party on inquiry, when. — See Kerr's Cyc. C. C. § 19, note par. 42. §20. EFFECT OF KEPE.VL. 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 pro- 13 § 21 CIVIL CODE. visions of this code, unless expressly continued in force by it, are repealed or abrogated. This repeal or abrogation does not revire any former law heretofore repealed, nor does it affect any right already exist- ing or accrued, or any action or proceeding already taken, except as in this code provided. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 333, held unconstitutional ; see history, § 4, ante. See Kerr's Cyc. C. C. for 25 pars, annotation. 68 C. 294, 298, 303, 58 A. R. 12, 9 P. 139, 144 (construed and commented on); 96 C. 490, 492, 493, 31 P. 560, 561 (not applic- able); 109 C. 571, 580, 42 P. 225 (applied); 121 C. 362, 364, 53 P. 842 (construed and applied). § 21. THIS ACT, HOW CITED. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as "The Civil Code," adding, when necessary, the num- ber of the section. History: Enacted March 21, 1872. 31 P. 620, 622 (cited). 14 DIVISION FIRST. Fart I. Persons, §§ 25-42. XL Personal Rights, §§ 43-54. III. Personal Relations. §§ 55-276. IV. Corporations, §§ 283-653zb. 15 i PART I. PERSONS. § 25. Minors, who are. § 26. 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 [repealed]. § 31. Minors by the law of other state or country, how consid- ered in this state [repealed]. § 32. Custody of minors. § 33. Minors cannot give a delegation of power. § 34. Contracts of minors made; disaffirmance. § 35. When minor may disaffirm. § 36. Cannot disaffirm contract for necessaries. § 37. Nor certain obligations. § 38. Contracts of persons without understanding. § 39. By persons of unsound mind. § 40. Power of persons whose incapacity has been adjudged. § 41. Minors liable for wrongs, but not liable for exemplary damages. § 42. Minors may enforce their rights. §25. MINORS^ ^VHO ARE. Minors are: 1. Males under twenty-one years of age; 2. Females under eigliteen years of age. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 119 C. 599, 601, 51 P. 962 (applied); 5 P. 80 (applied with §26). §26. PERIODS OF MINORITY, HOW CALCULATED. The periods specified in ttie preceding section must be calcu- lated from the first minute of the day on ivhich persons are born to the same minute of the corresponding day completing the period of minority. History: Enacted March 21, 1872; amended Code Commission, Act March 8, 1901, Stats, and Amdts. 1900-1, p. 333, held uncon- stitutional; see history, § 4, ante. 17 §§ 27-31 CIVIL CODE. [Div. I. See Kerr's Cyc. C. C. for 7 pars, annotation. 5 P. 80 (applied with § 25). § 27. ADULTS, WHO ARE. All other persons are adults. History: Enacted March 21, 1872. §28. STATUS OF MINORS, HOW CHANGED (repealed). Hi.story: Enacted March 21, 1872; repealed March 30, 1874, Code Anidts. 1873-4, p. 182. Statutes 1858 (p. 108) embraced only females; the original section extended the privilege to males. §29. UNBORN CHILD. A child conceived, 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 134 pars, annotation. 87 C. 15, 21, 25 P. 161 (erroneously cited for §2913); 132 C. 523, 580, 60 P. 442, 64 P. 1000 (applied); 139 C. 480, 483, 96 A. S. 154, 69 P. 297, 73 P. 244, 245 (unborn child not protected by this section where mother, etc., has brought suit and there has been a compromise or recovery without its existence having been known to defendant). As to unborn children, in addition to the very full annota- tion in Kerr's Cyclopedic Civil Code, § 29, see 29 Encyc. of L. 93; 49 Cent. Dig. col. 1235, §1086; and col. 2270, §§1511-1513; 2 A. C. 866; 7 A. C. 134; 11 L. 391; 44 L. 489. §30. PERSONS MADE ADULTS BY OTHER STATES, CONSIDERED AS SUCH IN THIS STATE, WHEN DOMI- CILED HEREIN (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1S73-4, p. 182. §31. MINORS BY THE LAWS OF OTHER STATE OR COUNTRY, HOW CONSIDERED IN THIS STATE (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 182. 18 I Pt. I.] CONTRACTS BY MINORS. §§ 32-35 § 32. CUSTODY OF MINORS. The custody of minors and persons of unsound mind is regulated by Part III of this division. History: Enacted March 21, 1872. §33. MINORS CANNOT GIVE A DELEGATION OF POWER. A minor cannot [1] give a delegation of power, nor under the age of eighteen, [2] make a contract relating to [a] real property, or [b] any interest therein, or [c] relating to any personal property not in his immediate possession or control. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 182. See Kerr's Cyc. C. C. for 7 pars, annotation. 74 C. 52, 56, 15 P. 364, 367 (discussed; not applicable); 115 C. 143, 151, 44 P. 336, 46 P. 922 (construed). §34. CONTRACTS BY MINORS MADE; DISAFFIRM- ANCE. A minor may make any other contract than as above specified, in the same manner as an adult, subject only [1] to his power of disaffirmance under the provisions of this title, and subject [2] to the provisions of the titles on [a] marriage, and on [b] master and servant. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 183; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 333, unconstitutional; see history, § 4, ante. See Kerr's Cyc. C. C. for 2 pars, annotation. As to contracts of infants — Avoidance, confirmation, etc., see 16 Encyc. of L. 271-307; 27 Cent. Dig. col. 1108, §§ 98-160; 3 A. C. 593; 4 A. C. 422; 5 A. C. 131; 8 A. C. 131. §35. WHEN MINORS MAY DISAFFIRM. 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 [1] by the minor him- self, either before his majority or within a reasonable time afterwards; or, in case of his death within that period, [2] by his heirs or personal representatives; and if the contract 19 §§36,37 CIVIL CODE. [Div. I. be made by the minor whilst he is over the age of eighteen, it may be disaffirmed in like manner upon restoring the con- sideration to the party from whom it was received, or paying its equivalent. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 183. See Kerr's Cyc. C. C. for 48 pars, annotation. 66 C. 336, 337, 5 P. 515 (erroneously cited by counsel); (C. Nov. 19, 1885), 8 P. 597, 598 (construed); 89 C. 575, 581, 26 P. 1108, 1109 (disaffirmance under this section not necessary wliere relation of trust and confidence is shown and conveyance rests on implied trust); 123 C. 634, 639, 640, 641, 69 A. S. 90, 97, 56 P. 436 (construed and applied). As to disaffirmance and avoidance of contracts by minors, in addition to annotations in Kerr's Cyc. C. C. § 35, see 16 Encyc. of L. 287-299; 27 Cent. Dig. col. 1160, §§149-160. §36. CANJVOT DISAFFIRM CONTRACT FOR NECESSA- RIES. A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary [1] for his support, or [2] 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 183. See Kerr's Cyc. C. C. for S3 pars, annotation. 123 C. 634, 640, 69 A. S. 90, 56 P. 436 (referred to by court in discussion, but class of contract not involved in case). As to contracts for necessaries being binding upon infant, see 16 Encyc. of L. 275-281; 27 Cent. Dig. col. 1123, §§ 114-127. As to apprenticeship, generally, see Kerr's Cyc. C. C. §§ 264 et sea- and notes. Same — Contract of, binding upon infant. — See 16 Encyc. of L. 275. §37. NOR CERTAIN OBLIGATIONS. A minor cannot disaffirm an obligation, otherwise valid, entered into by him under the express authority or direction of a statute. History: Enacted March 21, 1872. 123 C. 634, 640, 56 P. 436, 439, 69 A. S. 90 (applied with § 36). 20 I Pt. I.] CONTRACTS OF INCOMPETENTS. §§38,39 §38. COIVTEACTS OF PEllSONS IVITHOUT UNDER- STANDIlVGr. 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 [1] his support or [2] the support of his family. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 183. See Kerr's Cyc. C. C. for 31 pars, annotation. 85 C. 177, 190, 29 A. S. 128, 24 P. 729, 733 (construed and ap- plied); 110 C. 292, 296, 52 A. S. 84, 42 P. 804 (construed and applied); 134 C. 567, 568, 66 P. 729 (construed and applied); 139 C. 507, 511, 73 P. 247 (construed and applied); 149 C. 667, 673, 674, 87 P. 276, 279 (construed and applied with §39); 150 C. 272, 273, 275, 88 P. 909, 910 (cited); 1 C. A. 690, 693, 82 P. 1052, 1053 (explained with § 39). Drunkenness — Complete drunkenness as a defense to action on contract. — See Kerr's Cyc. C. C. § 39 note pars. 18-23; 11 Cent. Dig. col. 370, §§ 412, 414. §39. BY PERSONS OF UNSOUND MIND. A conveyance or other contract of person of unsound mind but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission, as provided in the chapter on rescission of this code. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 184. See Kerr's Cyc. C. C. for 60 pars, annotation. 85 C. 177, 190, 29 A. S. 128, 24 P. 729, 733 (applied); 110 C. 292, 296, 52 A. S. 84, 42 P. 80.4 (explained and applied); 140 C. 141, 152, 73 P. 820 (applied); 149 C. 667, 673, 87 P. 276, 279 (construed and applied); 150 C. 272, 274, 275, 276, 88 P. 909 (construed and applied with §38); 1 C. A. 690. 693, 694, 695, 82 P. 1052 (cited and explained). As to recission of contracts entered into by persons of un- sound mind, see 18 PI. & Pr. 765; 11 Cent. Dig-, col. 369, §411; 5 Decen. Dig. p. 103, §92; 4 L. 637; 13 L. 797. As to validity and effect of negotiable note signed or indorsed by an insane person, see 4 A. C. 539. Same — In hands of bona fide holder. — See 13 L. 797. As to validity of deed by insane person, see 19 L. 490; 57 L. 340. As to validity of judgment against an insane person, see 39 L. 775. 21 § 39 CIVIL CODE. [Div. I. As to validity of will by believer in spiritualism and witch- craft, see 16 L. 677. Contracts of insane persons. — See 71 A. S. 425; 16 L. 610; 4 L. 637; 13 L. 707; 34 L. 274; 35 L. 161; 35 L. 258; 49 L. 371; 3 L. N. S. 174. Same — When and how may be avoided.- — See 15 A. D. 361. Same — When void. — 21 A. R. 29. As to who deemed to be insane, see 29 A. D. 38; 27 Cent. Dig-, col. 2455, § 1. Civi? liability of insane person for torts and negligence. — See 42 A. S. 753; 26 L. 153; 27 Cent. Dig-, col. 2622, §§ 142, 143. Deed of insane person — As to generally, see 27 Cent. Dig. col. 2573, §§ 94-99. Same — Belief in spiritualism, witchcraft, etc., as affecting capacity to make. — See 16 L. 677. Same — In partition. — See 57 L. 340. Same — Validity of.— See 19 L. 489. Disabilities of, in general.— See 27 Cent. Dig. col. 2455, §§ 1-14. Divorce of insane person. — See 34 L. 161; 39 L. 264. Due process of law, as applied to insane persons, what is. — See 43 A. S. 351. Effect of insanity on failure to pay insurance premiuna when due.— See 12 L. N. S. 319. Effect of judgment of insanity and imprisonment on aban- donment of homestead. — See 3 L. N. S. 515. Expert evidence to establish or disprove. — See note § 40, post; 6 A. D. 59; 66 A. D. 238. Same — Conclusiveness of.- — See 42 L. 767. Hereditary insanity, evidence of. — See 6 A. C. 29; 97 A. D. 174. Hypnotism, law in reference to. — See 40 L. 269. Insane delusions — What are, and their effect on competency. —See 63 A. S. 80; 37 L. 261. Insanity as act of God.— See 4 L. N. S. 898. Insanity of husband as affecting wife's disability of covert- ure.— See 34 L. 223. Insanity of servant executing release on benefit of relief funds.— See 11 L. N. S. 201. Inquisition of insanity — Effect of as evidence. — See note § 40, post. Lucid intervals. — See 15 A. D. 116. Marriage of insane persons. — See 79 A. S. 376; 40 L. 737. Morphine habit and other addictions affecting responsibility and capacity. — 39 L. 262. Presumption — As to continuance of insanity. — See Kerr's Pocket C. C. P. § 1823, note; 4 A. C. 491; 35 L. 117. Right of insane person to remove from state. — See 58 L. 931. Statute of limitations does not operate against when. — See 36 A. D. 71. 22 ^ Pt. I.] LUNACY PROCEEDINGS. § 40 Validity of judgment against insane person. — See 39 L.. 775. Validity and effect of negotiable paper signed or endorsed by insane person. — See 4 A. C. 539. § 40. POIVEBS OF PERSONS WHOSE IJfCAPACITY HAS BEEN ADJUDGrED. After his incapacity has been judicially determined, a person of insane mind can make no conveyance or other contract, nor delegate any power or waive any right, until his restoration to capacity. But a certificate from the medical superintendent or resident physician of the insane asylum to which such person may have been committed, showing that such person had been discharged therefrom, cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such dis- charge. History: Enacted March 21, 1872; amended March 30, 1878, Code Amdts. 1877-8, p. 75; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, pp. 333-334, held uncon- stitutional; see history, § 4 ante. See Kerr's Cyc. C. C. for 6 pars, annotation. 57 C. 529, 531 (section as amended 1878 not applicable); 87 C. 192, 198, 25 P. 677, 679, 12 L. 104 (construed and applied); 33 P. 920, 923 (cited); 110 C. 292, 296, 52 A. S. 84, 86, 42 P. 804 (applied). LUNACY PROCEEDINGS. As to generally, see 27 Cent. Dig. col. 2475, §§ 15-42. Claims and liabilities after lunacy found, as- to generally, see 27 Cent. Dig. col. 2583, §§ 106-109. Collateral attack on, for want of notice. — See 23 L. 737; 12 L. N. S. 895. Conveyance by after lunacy adjudged — In general. — See 27 Cent. Dig. col. 2571, §§ 93-99. Same — "Affirmance and disaffirmance. — See 27 Cent. Dig. col. 2580, §§ 100-105. Custody and support after lunacy adjudged. — See 27 Cent. Dig. col. 2551, §§ 73-90. Effect of as evidence. — See 18 A. D. 241. Effect of finding and imprisonment as abandonment of homestead. — .See 3 L. N. S. 315. Equity jurisdiction over estates of lunatics. — 1 L. 610. Evidence of insanity — Admissibility of evidence of insanity of ancestor or kindred. — See 6 A. C. 29; 97 A. D. 124. Same — Burden of proof and presumptions. — See Kerr's Pocket 23 §§ 41, 42 CIVIL CODE. [Div. I. C. C. P. §1823, note; 10 L. 576; 17 L. 494; 36 L. 64, 721; 37 L. 426; 38 L. 721; 39 L. 226, 305, 715; 40 L. 742; 42 L. 766. Same — Expert evidence to establish or disprove, conclusive- ness of. — See note § 39, ante. Examination and confinement. — See 9 L. 193. Guardianship — As to generally, see 1 Church's New Probate Law and Practice 230-260; 27 Cent. Dig. col. 2517, §§ 43-72. Incapacity justifying appointment of guardian. — See 13 L. 757. Notice of proceedings necessary. — See 23 L. 737-744. Same — .Collateral attack for want of. — See 23 L. 737; 12 L. N. S. 895. § 41. MINORS LIABLE FOR WRONGS, BUT NOT LIABLE FOR EXEMPLARY DAMAGES. A minor, or person of unsound mind, of whatever degree, is ciTilly liable for a wrong- done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful. History: Enacted March 21, 1872. Liability of infants for torts, etc. — See 33 A. D. 197; 37 A. R. 413; 42 A. S. 753; 57 L. 673-688; 27 Cent. Dig. col. 1200, §183. § 42. MINORS MAY ENFORCE THEIR RIGHTS. A minor may enforce his rights by civil action, or other legal pro- ceedings, in the same manner as a person of full age, except that a guardian must conduct the same. 'History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 74 C. 52, 55, 15 P. 364, 366 (construed). Action by infants — As to generally, see 27 Cent. Dig. col. 1196, §§ 178-185. Same — Jurisdiction and powers of court. — See 27 Cent. Dig. col. 1202, §§ 186, 187. Same — Parties. — See 27 Cent. Dig. col. 1204, §§ 188-191. Same — Representation by guardian or next friend. — See 27 Cent. Dig. col. 1211, §§192-252. Admissions of infant. — See 10 Encyc. P. 590. Appointment of attorney for in probate proceedings. — See 2 Cliureli's New Pi-obate Law and Practice 1802; 10 Encyc. P. 597. Arbitration of infant's cause of action.— See 70 L. 171-176. Avoidance of contract by infant. — See "contract," this note. Conduct of suits by infants. — See 10 Encyc. P. 594. 24 Pt. I.] ACTIONS BY MINORS. § 42 Contracts of infants — As to generally, see 18 A. S. 573. Same — Avoidance of. — See 13 A. D. 131. Same — DisafHrmance of, when must be accompanied by restoration of consideration. — See 62 A. D. 734; 46 A. R. 317. Disabilities of infants. — See 10 Encyc. P. 594. Election of infants. — See 10 Encyc. P. 590. Employment of attorney to conduct cause. — See 10 Encyc. P. 598. Estoppel — In pais, doctrine does not apply to infants. — See 4 A. C. 532; 44 A. D. 285. Same — ^By misrepresentation as to age. — See 4 A. C. 535; 9 L,. N. S. 1117; 16 Encyc. L. 291, 292. Same — By misrepresentation or concealment of facts. — See 11 Encyc. L. 440. Infants en ventre sa mere — Actions by. — See 4 Encyc. L. 719; 11 Encyc. L. 20; 16 Encyc. L. 258. Judgment in favor of infant, satisfaction of by attorney. — See 3 L. N. S. 72. Laches not imputable to infant. — See 10 Encyc. P. 590. Negligence of infant, as bar to recovery for personal in- juries. — See 14 A. S. 590; compare 1 A. C. 889; 4 A. C. 248. Same — Imputing another's negligence to. — 8 L. N. S. 664, 669. Statute of limitations does not operate against. — See 36 A. D. 68. Submission by infant of agreed controversy under statute. — See 10 Encyc. P. 591. Wlien infant real party in interest, by whom action must be brought. — See 64 L. 610. 25 § 43 CIVIL CODE. [Div. I. PART II. PERSONAL RIGHTS. § 43. CJeneral personal rights. § 44. Defamation, what. § 45. Libel, what. § 46. Slander, what. § 47. Privileged publication, what is. § 48. Malice not inferred. § 49. Protection of personal relations. § 50. Right to use force. § 51. Rights of citizens in places of public accommodation or amusement. § 52. Damages recoverable for violation of preceding section. § 53. Wrongful refusal to admit person to places of public amusement. § 54. Damages recoverable for such refusal. §43. GENERAL PERSOIVAL RIGHTS. Besides the per- sonal rights mentioned or recognized in the Political Code, every person has, subject to the qualifications and restric- tions provided by law, the right of protection [1] from bodily restraint or harm, [2] from personal insult, [3] from defama- tion, and [4] from injury to his personal relations. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 209 pars, annotation. Ill C. 39, 45, 52 A. S. 146, 43 P. 398, 31 L. 220 (cited in dis- cussion); 119 C. 599, 601, 51 P. 962 (applied to contract in restraint of personal liberty of daughter); 122 C. 253, 256, 54 P. 847 (construed; provisions distinguished from those in §49 post); 124 C. 193, 199 (cited by error for §46; 56 P. 878, 880 correct citation). As to implied warranty by manufacturer, see Kerr's Cyc. C. C. § 1769 and note. As to implied warranty by maker or manufacturer, and extent of that warranty, see Kerr's Cyc. C. C. § 1769 and note. As to right of surviving partner to recover damages for the malicious prosecution of a civil action against the firm, see Kerr's Cyc. C. C. § 2461 and note. Unwholesome food for stock, as to liability for furnishing, see Kerr's Cyc. C. C. § 1708 and note. 26 pt II ] DEFAMATION — ^LIBEL. §§44,45 §44. DEFAMATION, "WHAT. Defamation is effected by: 1. Libel; 2. Slander. Flistory: Enacted March 21, 1872. 70 C. 135, 136, 11 P. 564 (applied). As to defamation, generally, see 2 W. & P. 1927. As to slander of title, see Kerr's Cyc. C. C. § 44, note. §45. LIBEL, WHAT. Libel is a false and unprivileged publication by writing, printing, picture, efflgy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 210 pars, annotation. 69 C. 527, 528, 529, 11 P. 179, 180 (construed and applied): 70 C. 270, 274, 275, 11 P. 713, 716 (construed and applied); 70 C. 135, 136, 11 P. 564 (applied); 114 C. 266, 271, 272, 46 P. 103 (construed and applied); 132 C. 224, 227. 228, 229, 230, 64 P. 290 (construed and applied); 146 C. 616, 620, 80 P. 1084 (applied). As to falsifying admission of crime charged in alleged libel, see Code Civ. Proc. § 1962 and note. As to impressions of witnesses being admissible in evidence, see cases pro and con in note* to 4 A. D. 352-354; see also Kerr's Cyc. C. C. § 45 note par. 113. As to pleading generally in actions of libel and slander, see Code Civ. Proc. § 461 and note. Allegation of language charging libel, — as to, see Code Civ. Proc. § 460 and note. iAUVA.. As criminal offense, see 5 A. C. 109; 5 W. & P. 4121. As personal injury, see 6 W. & P. 5343. Affecting a class of individuals. — See 70 A. S. 754. Attorney — Utterances of in conducting prosecution, how far privileged. — See "privileged communication," this note. Blacklisting dealer as. — See 8 L. N. S. 783. Business — Words affecting. — See "trade, business or profes- sion," this note. Candidate for office, of. — See 86 A. D. 88. Character of plaintiff — Evidence of admissible, when. — See 13 A. D. 499. 27 § 45 CIVIL CODE. [Div. I. Charging immorality or crime. — See 2 L. N. S. 691; 4 L. N. S. 560. Charging official with graft in public contract. — See 5 L. N. S. 498. Charging public official witli accepting bribe. — See 3 L. N. S. 1139. Color. — See "race and color," this note. Comment and criticism — On book. — See "literary criticism," this note. Same — On public officer. — See 1 A. C. 326, 330; 3 A. C. 647; 6 A. C. 135. Complaint should set out exact language. — See 9 A. C 495. Concerning property.- — See 16 L. 243; 16 L. 625; also "slander of title," this note. Construction of language. — See 5 W. & P. 4121. Corporation, right to maintain action for slander of prop- erty.— See 52 L. 526; 2 L. N. S. 741; also 5 A. C. 550. Credit, words affecting. — See 8 A. C. 213; 8 A. C. 841; 8 A. C. 844. Damages as an element of. — See 1 A. C. 196; 2 A. C. 561; 3 A. C. 482; 3 A. C. 526; 3 A. C. 546; 3 A. C. 921; 6 A. C. 765; 8 A. C. 212; 8 A. C. 809; 8 A. C. 841; 10 A. C. 270; 72 A. D. 421. Defamation of real property. — See 9 A. C. 818; also "slander of title," this note. Defense defendant did not originate but merely repeated the defamation charged.- — See 55 A. S. 611. Definition — General. — See 5 W. & P. 4116-4119. Same— Statutory.— See 5 W. & P. 4119. Disparagement of property or manufactured article. — See 8 A. C. 810. Evidence — As to generally, see 5 A. C. 854; 6 A. C. 135; 7 A. C. 1156. Same— Admissibility.— See 3 A. C. 526; 3 A. C. 546; 5 A. C. 854; 6 A. C. 765; 7 A. C. 610. Same — Burden of proof. — See 7 A. C. 840, 844; 10 A. C. 1148. Same — Of pecuniary circumstances of defendant. — See 33 A. R. 377. Same — Of plaintiff's character, when. — See 13 A. D. 499. Same — Of plaintiff's domestic relations, social standing, and pecuniary condition. — See 6 A. C. 768. Same — Of provocation, in mitigation of damages, — See 4 A. C. 923. Same — Special plea as. — See 11 A. D. 129. Same — Quantum of, to establish plea of justification. — See 7 A. C. 1158. Functions of court and jury in. — See 3 A. C. 647; 5 A. C. 855; 7 A. C. 840; 10 A. C. 152; 10 A. C. 1148; 13 A. S. 652. General abuse — Terms of. — See 5 W. & P. 4120. 28 pt. II.] LIBET.,— INTENT AND MALICE. § 45 Imputation — Applicable to a class of individuals. — 1 "U'. '2s. Liability— Joint, for, 1 A. C. 875; 3 A. C. 312. Same — Of corporation for. — See 9 A. C. 443. Same — Of editor for. — See 7 A. C. 457. Same — Of manager. — See 7 A. C. 457. Same — Of telegraph company for r<(iiviiig and sending libil- Dus message. — See 9 A. C. 697. Literary criticism, in.— See 1 A. C. 826, 330; 6 A. C. 135; 28 L. 667. Malice. — See Kerr's Cyc. C. C. § 48. note; 3 A. C. 546. 547; 9 A. C. 693; 5 W. & P. 4126. Morality — Words affecting as libel. — See 1 A. C. 1"' ' ^ '' S55; 7 A. C. 110; 9 A. C. SG4; 10 A. C. 1148. Newspaper libel.— See 15 A. S. 333; 101 A. S. 7.-)3. Officers, when not privileged. — 57 A. R. 223. Pleading as libelous, charge of commission of act in fini ign jurisdiction. — See 1 A. C. 199. I'resumptions as to. — See 3 A. C. 482; 7 A. C. 840. 29 § 45 CIVIL CODE. [Div. I. Privileged communication — Generally. — See Kerr's Cyc. C. C. §47, note; 3 A. C. 647; 7 A. C. 192; 7 A. C. 840, 841; 10 A. C. 270; 10 A. C. 1148; 2 A. D. 431; 104 A. S. 110; 2 L. 131; 3 L. 417; 6 L. 33. Same — Same — By or between stockholders of corporations. — See 10 A. C. 272. Same — Same — Criticism of public person. — See 6 L. 680; 8 L. 193; 13 L. 97. Same — Same — Falsity of charge against public officer as affecting privilege. — See 3 A. C. 649. Same — Same — Statement to mercantile agency. — See 2 L. 405. Same — Same — Publication in discharge of private duty. — See 4 L. 280. Same — Same — Question of law or fact.— See 10 A. C. 152. Same — In respect to judicial proceedings — Generally. — See 1 A. C. 697; 3 A. C. 124; 4 A. C. 431; 7 A. C. 110; 7 A. C. 528; 7 A. C. 601. Same — Same — Communication to peace or prosecuting offi- cer concerning commission of crime. — See 7 A. C. 113. Same — Same — Pertinent and material matter. — See 3 L. 417. Same — Same — Privilege of attorney — As to words spoken on trial. — See 17 A. D. 194. Same — Same — Same — ^Utterances of in conducting trial for libel.— See 7 A. C. 603. Same — Same — Privilege of utterances of judge. — See 4 A. C. 433. Same — Same — Privilege of witness — As to detaining testi- mony. — See 2 A. C. 825; 22 L. 386. Same — Same — Same — As to utterances made before or after testifying.— See 3 A. C. 127. Same — In respect to legislative proceedings. — See 6 A. C. 802. Profession— Words affecting one in his. — See "trade, business or profession," this note. Property — Words affecting. — See 9 A. C. 916; also "slander of« title," this note. Province of court and jury. — See "functions of court and jury," this note. Provocation — Evidence of in naitigation of damages. — See 4 A. C. 923. Publication — ^By addressing letter to person defamed. — See 1 A. C. 190. Same — By dictation to stenographer. — See 1 A. C. 103. Publication of person's photograph as that of another. — See 9 A. C. 866. Race and color — Words affecting. — See 4 A. C. 685. Right of corporation to sue for. — See 5 A. C. 550. Right of one of a class of persons affected to sue for. — See 8 A. C. 135. 30 pt. II.] LIBELr— SLANDER, WHAT. § 46 Robbery — Charge of as libel. — See 5 A. C. 855. Slander, distinguished. — 5 W. & P. 4124. Slander of title, as a. — See 13 L. 707, Same — Action for by corporation. — See 52 L. 526. Same — Defamation of real property. — See 9 A. C. 818. Speaking of a white person as a negro. — 4 A. C. 689. Statement non-trader owes debts and refuses to pay. — See 8 A. C. 844. Trade, business or profession — Words affecting. — See 5 A. C. 549; 8 A. C. 213; 8 A. C. 809; 8 A. C. 841; 8 A. C. 844; 5 L. 643; 8 L. 193; 9 L. 621; 49 L. 612; 52 L. 526; 3 L. N. S. 339; 4 L. N. S. 973, 977; 5 L. N. S. 480; 8 L. N. S. 783. Variance in action for. — See 12 A. D. 246. Venue in actions for. — See 15 A. D. 224. Veracity — ^Words affecting. — See 2 A. C. 561; 3 A. C. 646, 647; 8 A. C. 481. What words are per so. — See 1 A. C. 196; 9 A. C. 864; 1 A. D. 448: 12 A. D. 39; 41 A. R. 590; 116 A. S. 802. Witness — Statements made in giving testimony. — See 6 A. S. 825. Same — Utterances before and after testifying. — See 3 A. C. 127; 6 A. C. 807. §46. SLANDEH, AVIIAT. Slander is a false and unprivi- leged publication other than libel, which: 1. Charges any person with crime, or with having been indicted, convicted, or ])unished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, pro- fession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit; 4. Imputes to him impotence or a want of chastity: or, 5. Which, by natural consequence, causes actual damage. HiNtory: Enacted March 21, IS"'.'. See Kerr's Cyc. C C. for 19 pars, annotation. 67 C. 79. 80, 7 P. 136, 137 (applied); 68 C. 192, 193. 8 P. 857 (applied): 70 C. 135, 136, 11 P. 564 (applied); 70 C. 216, 218. 219, 11 P. 641. 642 (applied): 82 C. 523, 526, 23 P. 48. 49 (applied); 84 C. 177. 180. 24 P. 114 (applied): 91 C. 107. 110, 111. 112. 27 P. 533. 534 (applied); 105 C. 314, 320 38 P. 899 (cited): 122 C. 31 § 47 CIVIL CODE. [Div. I. 58. CI. 54 P. 3S9 (applied); 123 C. 157, 159, 55 P. 786 (construed and applied); 124 C. 193, 199 (erroneously cited as §43), 56 P. 878, 880 (correct citation); 137 C. 339, 343, 70 P. 216 (con- strued and applied); 1 C. A. 556, 557, 82 P. 571 (applied); 51 F. 424, 425 (cited, what necessary to constitute words action- able per se). As to malice generally, see Kerr's Cyc. C. C. § 48 and note. As to slander generally, see full annotation of subject, Kerr's Cyc. C. C. § 45 and note; also ante § 45, note. §47. PKIVILEGED PUBLICATIOIV, IS WHAT. A privi- leged 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 inter- ested therein, [1] by one who is also interested, or [2] by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or [3] 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 pro- ceeding, or of anything said in the course thereof, or of a verified charge or complaint made by any person to a public official, upon which complaint a warrant shall have been issued. 5. By a fair and true report, without malice, of the pro- ceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or the publication of the matter complained of was for the public benefit. HlNtory: En.-vcted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4. p. 184; March 26, 1895, Stats, and Amdts. 1895, p. 167; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 334, held unconstitutional; see his- tory, § 4 ante. See Kerr's Cyc. C. C. for 115 pars, annotation. 69 C. 527. 529, 530, 11 P. 179, 180 (applied in connection with 8 46): 69 C. 625, 627, 630, 58 A. R. 574, 11 P. 248. 249, 250, (con- strued and applied); (G. Dec. 1888). 19 P. 686, 687 (applied); 70 32 pt. II,] MALICE NOT INFKUKED. fiS -IS. 49 C. 185. 186: 11 V. 564 (applied); 78 C. 486. 487. 488. 12 A. S. 76. 21 P. 185. 3 L. 653 (applied); 91 C. 107. 112. 27 P. 533, 534 (con- strued and appllod); 93 C. 59, 70. 28 P. 845, 848 (appll.-d); 93 C. 222, 236, 27 A. S. 174, 28 P. 937, 941 (applied): 111 C. 606. 611, 612. 44 P. 241 (applied): 132 C. 224. 229. 64 P. 290 (construed and applied): 137 C. 339. 349. 350. 70 P. 216 (applh-d); 146 C. 616, 620, 80 P. 1084 (applied); 148 C. 422, 423. 83 P. 444. 7 A. C. 601 (cited concerning: privileged communications); 72 F. 808. 811 (referred to). As to complaint without probable cause, see Kerr's Cyc. C. C. I 47 and note pars. 13-15. As to defuinntiiry slatcnu-nt.s in ans\v»r not lunstltutlnff defense, see 51 I>. 930. As to law of newspaper libel, see 15 A. S. 333: 16 A. S. 544. Adultery charRcd In cross-bill for divorce. — See 53 L. 445. Chairman committee of political party, letter of uttaclcinK Kovernor's appointment to particular office. — See 55 !>. 732. Mode of proof. — See Kerr's Cyc. C. C. S 48 and note. Publications of r«'asons for discharge of employee, by rail- road. — See 60 I* 4 70. School board, in requestlne: revocation of teacher's license. — See 52 L. 852. Unjust derogatory statements as to character in answer to inquiries by Inti-restod party. — See 56 I.,. 296. 5 48. MALICE >0T INFKHKKI). In the cases provided for In 8ul)divl.slons three, four, and Ave. of the preceding sec- tion, mall'" \^ ""• inferred fr,,t., t»... (■..•lununication or 'xi'.h- ration. IliHloryi I'ifinrted Mnrili Jl, Ihi.;. nm<-nded March 2b. ISI'5. Stats, and Atndts. 1893. p. 168. In force March 26. 1S9r<. See Kerr's Cyc. C. C. for 36 pars, annntntln- 70 r. 135. 136, 11 P. 564 (referred to); 19 P. • >.. ..>. i-it.-.i.. 93 C, S9. 70. 28 P. 845. S4S (referred to In application of |47); 132 C. 224. 229. 1^4 P. 290 (construed and applied). 146 C. 616. 620, SO P. 10K4 (appllod). As to evidence of gonfrnl r'>rt« In mltlKntl-n of .lim.T»«»». SDC 13 A. I>. 499. As to insanity as a ibf) i. ' Kerr's Cy< '\I IJUMImvs. The ripht.s of pcr.'^oii.'il relations forbid: 1. The abduction of a husband from his wife, or of a parent from his child. Kerr's C. C— 2 33 §§ 50, 51 CIVIL CODE. Div. I. 2. The abduction or enticement of a wife from her hus- band, or a child from a parent, or from a guardian entitled to its custody. 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. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 334, held unconstitutional; see history, § 4 ante; amended March 7, 1905, Stats, and Amdts. 1905, p. 68. See Kerr's Cyc. C. C. for 14 pars, annotation. 98 C. 578, 582, 33 P. 492, 21 L. 233 (applied); 122 C. 253, 256, 257, 259, 54 P. 847 (construed and applied). As a criminal offense, see Kerr's Cyc. Pen. C. §§ 266, 268 and notes. Limitation of actions for, see Kerr's Cyc. C. C. P. § 340, note par. 34 and § 352 and note. § 50. RIGHT TO USE FORCE. Any necessary force may be used to protect from wrongful injury the person or prop- erty of oneself [one's self], or of a wife, husband, child, par- ent, or other relative, or member of one's family, or of a ward, servant, master, or guest. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 184. §51. RIGHTS OF CITIZENS IN PLACES OF PUBLIC ACCOMMODATION OR AMUSEMENT. All citizens within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities, and privileges of inns, restaurants, hotels, eating-houses, barber-shops, bath-houses, theaters, skating-rinks, and all other places of public accom- modation or amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens. Hi.stor>'s Added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 334, held unconstitutional; see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 553. 34 Pt. II.] DAMAGES RECOVERABLE. §§52,53 74 C. 266, 267, 15 P. 831, 832 (erroneously cited for § 24 of the insolvent act of 1852), 5 A. S. 440. §52. DAMAGES RECOVERABLE FOR VIOLATIOX OF PRECEDING SECTION. Whoever violates any of the provis- ions of the last preceding section, [1] by denying to any citi- zen, except for reasons applicable alike to every race or color, the full accommodations, advantages, facilities, and privi- leges in said section enumerated, or [2] by aiding or incit- ing such denial, or whoever [3] makes any discrimination, dis- tinction, or restriction on account of color or race, or except for good cause, applicable alike to all citizens of every color or race whatever, in respect to the admission of any citizen to, or his treatment in, any inn, hotel, restaurant, eating- house, barber-shop, bath-house, theater, skating-rink, or other public place of amusement or accommodation, whether such place is licensed or not, or whoever aids or ineites sncli dis- crimination, distinction, or restriction, for each and every such offense is liable in damages in an amount not less than fifty dollars, which may be recovered in an action at law brought for that purpose. IliNtory: Added by Code Commission, Act March 16, 1901, Stats, and Anidts. 1900-1, p. 334, held unconstitutional; see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Anidts. 1905, pp. 553-554. §:>S. AVHOXJFII, iniFlSAI- TO ADMCr FFHSON TO PLA( ES (»F rCHLU A.>U SEMEXT. It is unlawful for any corporation, person, or association, or the proprietor, lessee, or the agents of either, of any opera house, theater, melodeon, museum, circus, caravan, race-coiuse, fair, or other place of public amusement or entertainment, to refuse admittance to any person over the age of twenty-one years, who presents a ticket of admission acquired by purchase, or who tenders the price thereof for such ticket, and who demands admission to such place. [Who may he exeliided.] Any person under the influence of liquor, or who is guilty of boisterous conduct, or any per- 35 § 54 CIVIL CODE. [Div. I. son of lewd or immoral character, may be excluded from any such place of amusement. History: Added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 335, held unconstitutional; see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 554. §51. DAMAGES EECOYERABLE FOR SUCH REFUSAL. Any person who is refused admission to any place of amuse- ment contrary to the provisions of the last preceding section, is entitled to recover from the proprietor, lessee, or their agents, or from any such person, corporation, or association, or the directors thereof, his actual damages, and one hundred dollars in addition thereto. History: Added by Code Comission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 335, held unconstitutional; see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 554. 36 PART III. PERSONAL RELATIONS. Title I. Marriage, §§ 55-181. II. Parent and child, §§ 193-230. III. Guardian and Ward, §§ 236-258. IV. Master and Apprentice, §§ 264-276. Chapter I. 11. III. TITLE I. MARRIAGE. The Contract of Marriage, §§ 55-80. Divorce, §§ 82-148. Husband and Wife, §§ 155-181. CHAPTER I. THE CONTRACT OF MARRIAGE. Article I. Validity of Marriage, §§ 55-63. II. Authentication of Marriage, §§ 68-79a. III. Judicial Determination of Void Marriages, § 80. ARTICLE I. VALIDITY OF MARRIAGE. 55. What constitutes marriage. 56. Minors capable of contracting marriage. 57. Marriage, liow manifested and proved. 58. Voidable marriages [repealed]. 59. Incompetency of parties to. 60. Of white and negroes or mulattoes, void. 61. Subsequent marriage, when illegal and void. 62. Released from marriage contract, when. 63. Marriages contracted without the state. 37 §§55,56 CIVIL CODE. [Div.I.Pt.III. §55. WHAT CONSTITUTES MARRIAGE. Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making the contract is neces- sary. Consent alone will not constitute marriage; it must be followed by a solemnization authorized by this code. History: Enacted March 21, 1872; amended March 26, 1895, Stats, and Amdts. 1895, p. 121. See Kerr's Cyc. C. C. for 84 pars, annotation. 67 C. 185, 212, 7 P. 456, 635, 8 P. 709 (dis. op., construed and applied); 75 C. 1 (construed and applied on pp. 8, 11, 12, 13, 15, 16, 17, 29, 50, 51), (construed on pp. 19, 21, 22, 23, 24, 25), (in dis. op. construed and applied on pp. 57, 58, 59, 72, 73, 74, 76), (re- ferred to on pp. 9, 14, 18), 16 P. 345, 348, 349, 350, 351, 352, 353, 354, 355, 358, 371, 378, 379; 79 C. 633, 634 (applied on pp. 634, 644, 651, 661, 667, 684, 686, construed and applied on 669), 22 P. 26, 31, 41; 81 C. 182, 189, 22 P. 648 (construed and applied); 82 C. 413, 416, 417, 22 P. 1140, 1141 (construed and applied); 89 C. 46, 49, 50, 23 A. S. 447, 26 P. 636 (construed and applied); 31 P. 620, 622 (applied); 99 C. 286, 288, 289, 33 P. 844 (construed and applied); 104 C. 260, 261, 37 P. 944 (applied); 104 C. 631, 633, 634, 38 P. 422 (construed and applied); 105 C. 357, 360, 38 P. 735', 736; 116 C. 304, 48 P. 127 (applied without citation); 121 C. 620, 624, 628, 629, 66 A. S. 74, 54 P. 143, 42 L. 343 (applied); 128 C. 308, 310, 60 P. 932 (applied); 133 C. 524, 527, 65 P. 1034 (ap- plied); 137 C. 129, 146; 69 P. 900, 906. As to conditions precedent and subsequent, see Kerr's Cyc. C. C. §§ 1436, 1438 and notes. As to assumption of marital rights, duties, and obligations, see Kerr's Cyc. C. C. § 55, note pars. 36, 39, 55 et seq. As to by whom solemnized, see Kerr's Cyc. C. C. § 70 and note. As to form of solemnization, see Kerr's Cyc. C. C. § 71 and note. As to requirements by person solemnizing marriage, see •Kerr's Cyc. C. C. § 72 and note. As to solemnization, see Kerr's Cyc. C. C. § 55, note pars. 35 et seq. Mode of proof. — ^See post § 57 and note. Prosecutions for bigamy. — See Kerr's Cyc. Pen. C. § 1106 and note. game — Declaration of marriage solemnization of which is not recorded. — See Kerr's Cyc. C. C. § 76 and note. § 56. MINORS CAPABLE OF CONTRACTING MARRIAGE. Any unmarried male of the age of eighteen years or upwards, 38 Tit.I,ch.I,art.I.] MARRIAGE. §§ 57-59 and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of con- senting to and consummating marriage. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 75 C. 1, 14 (cited), 16 (construed), 59. 16 P. 345, 351, 79 C. 633, 667, 22 P. 26, 131 (referred to); 123 C. 224, 226, 69 A. S. 52, 55 P. 911 (construed and held not applicable). §57. MARRIAGE, HOW MANIFESTED AND PROVED. Consent to marriage and solemnization thereof may be proved under the same general rules of evidence as facts are proved in other cases. History: Enacted March 21, 1872; amended March 26, 1895, Stats, and Amdts. 1895, p. 121. See Kerr's Cyc. C. C. for 31 pars, annotation. 75 C. 1, 15 (cited), 16 (construed), 51, 52, 59, 63, 76 (construed and applied), 67, 16 P. 345, 351, 368, 373, 379; 79 C. 633, 666, 667, 686 (construed), 636, 694 (construed and applied), 22 P. 26, 44, 131; 116 C. 304, 313, 48 P. 127 (construed and applied); 133 C. 524, 527, 65 P. 1034 (applied). §58. VOIDABLE MARRIAGES (repealed). HLstory: Enacted March 21, 1872; anaended March 30, 1874, Code Amdts. 1873-4, p. 185; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 335, held unconsti- tutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 554. See Kerr's Cyc. C. C. for 21 pars, annotation. (C. Nov. 30, 1892), 31 P. 571, 573, 574 (construed and held not applicable); 138 C. 546, 549, 71 P. 458 (erroneously cited for §158). §59. INCOMPETENCY OE PARTIES TO. 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, aiid between uncles and nieces or aunts and nephews, are incestuous, and void from the begin- ning, whether the relationship is legitimate or illegitimate. History: Enacted March 21, 1872. 39 §§ 60, 61 CIVIL CODE. [Div.I,Pt.III. §60. OF WHITES AND NEGROES OR MULATTOES, VOID. All marriages of white persons with negroes, mongo- lians, or mulattoes are illegal and void. History: Enacted March 21, 1872; amended by Code Commis- sion (by adding' word "mongolian"), Act March 16, 1901, Stats. and Amdts. 1900-1, p. 335, held unconstitutional; see history, § 4 ante; amended March 21, 1905, p. 554. See Kerr's Cyc. C. C. for 12 pars, annotation. 137 C. 129, 135, 69 P. 900 (referred to). §61. SUBSEQUENT MARRIAGE, WHEN ILLEGAL AND VOID. A subsequent marriage contracted by any person dur- ing 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. In no case can a marriage of either of the parties during the life of the other, be valid in this state, if contracted within one year after the entry of an interlocutory decree in a pro- ceeding for divorce. 2. Unless such former husband or wife is [1] absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent mar- riage, or [2] is generally reputed or believed by such person to be dead at the time such subsequent marriage was con- tracted. In either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 185; Feb. 25, 1897, Stats, and Amdts. 1897, p. 34; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 335, unconstitutional; see history, § 4 ante; amended March 16, 1903, Stats, and Amdts. 1903, p. 176. See Kerr's Cyc. C. C. for 66 pars, annotation. 94 C. 446, 459, 464, 29 P. 957, 960 (construed and applied); 133 C. 524, 527, 65 P. 1034 (not applicable); 137 C. 129, 131, 132, 133, 134, 135, 137 (construed); 138 (amendment of 1897 to section not applicable); 139 (construed and applied), 142, 144 (applied), 69 P. 900, 139 C. 630, 632, 73 P. 466, 467 (construed and applied); 140 C. 244, 247, 248, 249 (construed and applied); 73 P. 1000; 140 C. 476, 485 (construed), 488 (applied), 74 P. 28; 146 C. 245, 40 Tlt.I,Ch.I,art.I.] RELEASE FROM MARRIAGE. §§ 62, 63 247, 249, 252, 79 P. 891, 106 A. S. 23 (referred to); 6 C. A. 420, 423, 92 P. 329 (referred to). Presumption of death from absence. — See Kerr's Cyc. C. C. P. § 1963 and note. §62. RELEASE FROM MARRIAGE CONTRACT, AVIIEX. Neither party to a contract to marry is bound by 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. Hi8tory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 185. See Kerr's Cyc. C. C. for 12 pars, annotation. As to breach of promise, see 63 A. D. 532-548. §63. MARRIAGES (ONTUACTED WITHOUT THE STATE. All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. (By error of reporter cited in headlines of official volume Norman vs. Thompson), 121 C. 620, 624, 66 A. S. 74, 54 P. 143, 42 L. 343 (construed and held not applicable); 137 C. 129, 135, 136, 137. 138, 139 (applied), 145 (comment), 147 (held not applicable), 69 P. 900. 41 §§ 68, 69 CIVIL CODE. [Div.I.Pt.III. ARTICLE II. AUTHENTICATION OF MARRIAGE. § 68. Procedure required. § 69. Marriage license. § 69a Oprtificate of registry of marriage. § 70. By whom marriages may be celebrated. § 71. No particular form of solemnization. § 72. Requirements by persons solemnizing marriage. § 73. Certificates of marriage. § 74. Certificate to parties and recorder. § 75. Declaration of marriage, how made [repealed]. § 76. Declaration where there is no record. § 77. To be acknowledged and recorded. § 78. Either party may proceed to test validity of marriage. § 79. Marriage without license. § 79a. Recording declaration of marriage. § 68. PEOCEDUEE EEQUIEED. Marriage must be licensed, solemnized, authenticated, and recorded as provided in this article; but non-compliance with its provisions by others than a party to a marriage does not invalidate it. History: Enacted March 21, 1872; amended March 26, 1895, Slats, and Amdts. 1895, p. -121; March 21, 1905, Stats, and Amdts. 1905, p. 554. See Kerr's Cyc. C. C. for 12 pars, annotation. 104 C. 260, 261, 37 P. 944 (applied with other sections); 116 C. 304, 311, 48 P. 127 (cited with other sections); 121 C. 620, 628, 629, 66 A. S. 74, 54 P. 143, 42 L. 343 (applied); 133 C. 524, 527, 65 P. 1034 (amendment of 1895 lield not applicable). §69. MAEEIAGE LICENSES. All persons about to be joined in marriage must first obtain a license therefor, from the county clerk of the county in which the marriage is to be celebrated, which license must show: 1. The identity of the parties. 2. Their real and full names, and places of residence. 3. Their ages; and 4. Whether white, mongolian, negro or mulatto. [License not to issue, when.] No license must be granted 42 1 Tit.I,ch.F,ait.II.] LICENSE— REGISTRY. § 69a when either of the parties, applicants therefor, is an imbe- cile, or insane, or who at the time of making the application, or proofs herein required, for said license, is under the influence of any intoxicating liquor or naroctic drug; no license must be issued authorizing the marriage of a white person with a negro, mulatto, or mongolian: If the male is under the age of twenty-one years, or the female is under the age of eighteen years, and such person has not been pre- viously married, no license must be issued by the county clerk unless the consent in writing of the parents of the per- son under age, or one of such parents, or of his or her guard- ian, is presented to him, duly verified by such parents, or l)iirent. or guardian; and such consent must be filed by the clerk, and he must state such facts in the license. [Kxnininalioii on ontli.] For the purpose of ascertaining all the facts mentioned or required in this section, the clerk, at the time the license is api)lied for, may, if he deems it necessary in order to satisfy himself as to matters in this sec- tion enumerated, examine the male applicant for a license on oath, which examination shall be reduced to writing by the clerk, and subscribed by him. [In clYecl, hIu'H.] Sec. 2. This act shall be in force and take effect fioni and after its passage. HiNtoryi Enacted March 21, 1872; amended March 30, 1874, Codo Anults. 1873-4, p. 186; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 3; amended by Code CommLsslon, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 336. lield unconstitutional; see his- tory, S 4 ante; amended March 18. 1905, Stats, and Amdts. 190R. p. 182; amended March 15. 1907. Stats, and Amdts. 1907. p. 305. Kerr's Stats, and Amdts. 1906-7, p. 399. See Kerr's Cyc. C. C. for 4 pars, annotation. .■^9 C. 372. 374, 379 (referred to); 116 C. 304, 311, 48 P. 127 Kited with other sections); 121 C. 620, 629. 66 A. S. 74, 54 P. 143. 42 I.. 343 (applied); 123 C. 224. 226. 69 A. S. 52. 55 P. 911 (not applicable). Marriage by contract, see Kerr's Cyc. C. C. $§ 55. 68 and notes. §«S)a. CEHTIFK ATE OF REGISTRY OF MARRI.VGE. .Ml persons about to be joined in marriage must obtain from the 43 § 70 CIVIL CODE. [Dlv.I,Pt.III. county clerk of the county in which the marriage is to be celebrated, in addition to the license therefor provided for in section sixty-nine of the Civil Code, a certificate of registry as provided in section three thousand and seventy-six of the Political Code which shall contain among other matters as near as can be ascertained, the race, color, age, name and surname, birthplace, residence of the parties to be married, number of marriage and condition of each, whethe'r single, widowed, or divorced, the occupation of the parties, maiden name of the female, if previously married, the names and birthplaces of the parents of each, and the maiden name of the mother of each, which said certificate of registry shall be filled out as herein provided in the presence of the county clerk issuing the marriage license and shall then be pre- sented to the person performing the ceremony and shall be filed by him with the county recorder within three days after the ceremony. Hi.xtory: Enacted April 26, 1909, Stats, and Amdts, 1909, p. 1093. §70. BY WHOM MAKItlAGES MAT BE CELEBRATED. Marriage may be solemnized by either a justice of the supreme court, justice of the district courts of appeal, judge of the superior court, justice of the peace, judge of any police court, city recorder, priest or minister of the gospel of any denomination. [Repealing clause.] Sec. 2. All acts and parts of acts in conflict with the provisions of this act are hereby repealed. HI.-ftory: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 4; ameaded by Code Commission, Act March IC, 1901, Stats, and Amdts. 1900-1, p. 336, held uncon- stitutional; see history, § 4 ante; amended March 20, 1903, Stats, and Amdts. 1903, p. 255; amended Marcli 1, 1907, Stats, and Amdts. 1907, p. 80, Kerr's Stats, and Amdts. 1906-7, p. 400. In effect immediately. See Kerr's Cyc. C. C. for 4 pars, annotation. 75 C. 1, 12, 16 P. 345, 350 (applied); 116 C. 304, 311, 48 P. 127 (cited in connection with other sections); 121 C. 620, 628, 629, 66 A. S. 74, 54 P. 143, 42 L. 343 (applied); 140 C. 213, 221, 73 P. 1006 (referred to); 26 F. 337, 339 (referred to). 44 Tlt.I.ch.I.art.ir.] SOLEMNIZATION. 5S 71-74 Solomnizatlon on high seas by captain of vessel, — as to validity, sec Kerr's Cyc. C. C. 8 68, note pars. 11, 12. §71. NO P.VKTKTLAR ViUiM OF SOLEMNIZATION. No particular form for the ceremony of marriage Is required, but the parties must declare, in the presence of the person solemnizing the marriage, that they take each other as hus- band and wife. IIlMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. (Dla. op,), 75 C. 1, 12, 60. 77 (applied). 66 (referred to;, !•; P. 345, 350: 79 C. 633, 651, 22 P. 26, 131 (applied); 104 C. 260, 261, 37 P. 944 (applied): 116 C. 304, 311, 48 P. 127 (cited with other sections): 121 C. 620, 628, 66 A. S. 74, 54 P. 143, 42 L. 343 (applied); 133 C. 524. 527. 6.'. P. 1034 (this, and « 55. luld not retroactive). § 72. KKQl'IKEMEMS BY PKKSONS SOLE.MNIZINfi MAUKIAdiE. The person solemnizing a marriage must first require the presentation of the marriage license; and if he has any reason to doubt the correctness of its statement of facts, he must first satisfy himself of its correctness, and for that purpose he may administer oaths and examine the par- ties and witnesses In like manner as the county clerk does before issuing the license. HlNtoryi Enacted March 21, 1872; amended March 30, 1874, Code Amdt.'». 1S73-4. p. 1S6. ■ § 7:{. ( EUTIFIC'ATLS OF MAKKIAGK. The person solemn- izing a marriage must make, sign, and Indorse upon, or attach to. the license, a certificate, showing: 1. Ibe fact, time, and place of solemnization; and. 2. The names and places of residence of one or more wit- nesses to the ceremony. Ilintnryi Enacted March 21, 1S72: nnwndcd March 30. 1S74. C.ide Amdts. 1873-4. p. 187. §74. CERTIFHATE TO I'AHTIF.S AND RKfORDER, He must, at the request of, and fnr cithor party, make a certified 45 §§ 75-77 CIVIL CODE. [Div.I,Pt.III. copy of the license and certificate, and file the originals with the county recorder within thirty days after the marriage. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 336, held unconstitutional; see history, § 4 ante. Recordation provided for in Kerr's Pocket Pol. C. § 4235, § 69a, ante, and § 77, post. §75. DECLARATIOJf OF MARRIAGE, HOW MADE (repealed). History: Enacted March 21, 1872; repealed March 26, 1895, Stats, and Amdts. 1895, p. 121. See Kerr's Cyc. C. C. for 6 pars, annotation. 75 C. 1, 60 (applied), 66, 77 (referred to in dis. op.), 16 P. 345, 372, 375, 380; 79 C. 633, 651, 22 P. 26, 131 (referred to); 104 C. 260, 261, 37 P. .944 (construed); 116 C. 304, 311, 48 P. 127 (re- ferred to); 121 C. 620, 628, 54 P. 143, 66 A. S. 74, 42 L. 343 (ap- plied); 133 C. 524, 526, 527, 65 P. 1034 (applied); 26 F. 337, 406 (cited as to necessity of acknowledgment, and applied). §76. DECLARATION WHERE THERE IS NO RECORD. If no record of the solemnization of a marriage heretofore contracted, be known to exist, the parties may join in a writ- ten declaration of such marriage, substantially showing: 1. The names, ages, and residences of the parties. 2. The fact of marriage. 3. That no record of such marriage is known to exist. Such declaration must be subscribed by the parties and attested by at least three witnesses. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 187. See Kerr's Cyc. C. C. for 3 pars, annotation. * 116 C. 304, 310, 311 (cited with other sections), 312 (held not applicable), 48 P. 127; 121 C. 620, 629, 66 A. S. 74, 54 P. 143, 42 L. 343 (applied). § 77. TO BE ACKNOWLEDGED AND RECORDED. Decla- rations of marriage must be acknowledged and recorded In like manner as grants of real property. History: Enacted March 21, 1872. 46 Tit.I,ch.I,art.II.] testing— recording. §§ 78-79a See Kerr's Cyc. C. C. for 3 pars, annotation. (Dis. op.), 75 C. 1, 77, 16 P. 345, 380 (applied); 116 C. 304, 311 (referred to). 314 (held not applicable), 48 P. 127; 121 C. 620, 629, 66 A. S. 74, 54 P. 143, 42 L. 343 (referred to); 26 F. 337, 406, 409 (cited to point that declarations of marriage must he acknowledged and recorded). § 78. EITHER PARTY MAY PRO( EED TO TEST VALID- ITY OF MARRIAGE. If either party to any marriage denies the same, or refuses to join in a declaration thereof, the other may proceed, ])y action in the superior court, to have the validity of the marriage determined and declared. History: Enacted March 21, 1872; amended to make it con- form to new constitution, Feb. 15, 1883, Stats, and Amdts. 1883, p. 4. See Kerr's Cyc. C. C. for 4 pars, annotation, 67 C. 185, 194, 195, 7 P. 456, 635, 8 P. 709 (applied); 75 C. 1, 12, 16 P. 345, .350 (erroneously cited for §68); 121 C. 620. 623. 66 A. S. 74. 75, 54 P. 143. 42 L. 343 (applied). § 79. 3IARRIA(;E WITHOUT LICEXSE. When unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergj- man. A certificate of such marriage must, by the clergj'man, be made and delivered to the parties, and recorded upon the records of the church of which the clergyman is a repre- sentative. No other record need be made. HlDturyt Enacted Feb. 3, 1878, Code Amdts. 1S77-S, p. 75-6. 104 C. 260, 261, 37 P. 944 (applied). As to whether signing and recording declaration constitutes solemnization, see Kerr's Cyc. C. C. S 79, note. § 71>a. RE((M{I)I\(i DEILARATION (H .>IARRIAs. I 83. Actions tlierefor, wlien commenced. I 84. Children of annulled marriage. f 85. Custody of children. S 86. Effect of Judgment of nullity. §82. CAISKS FOK A>M M>I>G MAKKIACJKS. A mar- riage may lie annulled for any of the following causes, exist- ing 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 contracted without the consent of his or her parents or guardian, or person having charge of him 49 § 82 CIVIL CODE. [Div.I,Pt.III. 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, unless such party, after coming to reason, freely cohabit with the other as husband or wife. 4. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife. 5. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife. 6. That either party was, at the time of marriage-, physically incapable of entering into the marriage state, and such inca- pacity continues, and appears to be incurable. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 187-188. See Kerr's Cyc. C. C. for 47 pars, annotation. 88 C. 557, 560, 564, 565 (erroneously cited for § 852), 26 P. 366 (correctly cited); 94 C. 446, 464, 29 P. 957, 960 (applied); (C. Nov. 30, 1892), 31 P. 571, 573, 574, 575 (applied) ; 99 C. 286, 287, 33 P. 844 (applied in construction relative to status of parties in voidable marriage); 137 C. 26, 27, 69 P. 616 (construed and applied); 6 C. A. 420, 421, 92 P. 329 (construed with §83, subd. 2). As to pregnancy by another, see Kerr's Cyc. C. C. § 58, note pars. 11-16. As to who are to be deemed non compos mentis, — -see 29 A. D. 38; 44 A. D. 55. Below age of consent — Ceremony performed by ship's captain on high seas, — as to validity, see Kerr's Cyc. C. C. § 79i/^ and note. Fraud — as to generally, see Kerr's Cyc. C. C. § 58, note pars. 11-18. Pregnancy physical defect, as to whether is within meaning of this section. — See Kerr's Cyc. C. C. § 58 and note. 50 I Tit.I.ch.II.art.I.] annulment— children. §§ 83, 84 §83. ACTIONS THEREFOK. WHEX (O^HIENCED. An action to obtain a decree of nullity of nuirria.^e, for causes mentioned in the preceding section, must be commenced within the periods and by the parties, as follows: 1. For causes mentioned in subdivision one: by the party to the marriage who was married under the age of legal consent, within four years after arriving at the age of con- sent; 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: liy 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 marriage. HiMtory: Enacted March 21, 1S72; aiiK-ndrd March 30, 1S74. Code Amdts. 1873-4, pp. 188-189. 6 C. A. 420, 422, 92 P. 329 (construod witli § 82). §84. ( IIILDHKN OF ANNULLED .MAHIMA(iE. A judg- ment of nullity of marriage does not affect the legitimacy of children begotten before the judgment. IllNtory: Enacted March 21, 1872; amended by Code Coinniis- sion, Act March 16, 1901. Stat.«». and Amdts. 1900-1. p. 337. held unconstitutional; see history, $ 4 ante; amended March 21, 1905, p. 555. See Kerr's Cyc. C. C. for 3 pars, annotation. 57 C. 484, 491 (referred to on question of legitimacy). 61 If §§ 85, 86 CIVIL CODE. [Div.I,Pt.III. §85. CUSTODY OF CHILDREN. 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. History: Enacted March 21, 1872. § 86. EFFECT OF JUDGMENT OF NULLITY. A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them. History: Enacted March 21, 1872. 52 Tit.I,ch.II,art.II.] DISSOLUTION. §§90,91 ARTICLE II. DISSOLUTION OF MARRIAGE. § 90. Marriage, how dissolved. § 91. Effect of divorce. § 92. Causes for divorce. § 93. Adultery defined. § 94. Extreme cruelty, what. § 95. Desertion, what. § 96. Desertion, how manifested. § 97. In case of stratagem or fraud, who commits desertion. § 98. In case of cruelty, where one party leaves the other, who commits desertion. § 99. Separation by consent, not desertion. § 100. Absence becomes desertion, when. § 101. Consent to separate revocable. § 102. Desertion, how cured. § 103. Wife must abide by husband's selection of home, or it is desertion on her part. §10-}. If the place is unfit, and wife refuses to conform, it is desertion by the husband. § 105. Wilful neglect, what. § 106. Habitual intemperance, what. § 107. Habitual intemperance for one year. §90. MARUIAGE, HOW DISSOLVED. Marriage is dis- solved only: 1. By death of one of the parties; or, 2. By the judgment of a court of competent jurisdiction decreeing a divorce of the parties. HlMtory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 189. See Kerr's Cyc. C. C. for 9 pars, annotation. 137 C. 26, 27, 69 P. 616 (referred to); 137 C. 129, 134, 137, 138, 139, 144, 69 P. 900 (applied). §91. EFFECT OF DIVORCE. The effect of a judgment decreeing a divorce, is to restore the parties to tlie state of unmarried persons. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 189. 53 § 92 CIVIL CODE. [Div.I,Pt.III. See Kerr's Cyc. C. C. for 3 pars, annotation. 137 C. 129, 133, 134, 137, 138, 139, 144 (applied), 69 P. 900; 140 C. 476, 488, 98 A. S. 73, 74 P. 28 (referred to). § 92. CAUSES FOR DIYORCE. Divorces may be granted for anj^ of the following causes: 1. Adultery. 2. Extreme cruelty. 3. Wilful desertion. 4. Wilful neglect. 5. Habitual intemperance. 6. Conviction of felony. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 189. See Kerr's Cyc. C. C. for 71 pars, annotation. 51 C. 543, 544 (applied); 74 C. 489, 492, 5 A. S. 460, 16 P. 248, 249 (applied); 85 C. 251, 255, 256, 24 P. 649, 650, 9 L. 487 (con- strued and applied); 126 C. 123, 128, 58 P. 456 (referred to); 135 C. 397, 399, 87 A. S. 118, 67 P. 506 (applied); 153 C. 56, 58, 94 P. 244 (cited as to wilful neglect); 153 C. 254, 255, 256, 257, 258, 259, 260, 94 P. 1044, 1045, 1046, 1047 (discussed, with other sec- tions, concerning non-resident wife's right to sue for main- tenance). As to recrimination, see Kerr's Cyc. C. C. § 122 and note, § 622 and note. Alimony, — as to, see Kerr's Cyc. C. C. §§ 136, 137 and notes. Assigning to wife on divorce for extreme cruelty. — See Kerr's Cyc. C. C. §§ 94, 146 and notes. Counsel fees and costs, — as to, see Kerr's Cyc. C. C. § 137 and note. Default — Judgment on, — as to, see Kerr's Cyc. C. C. § 130 and note. Disposition after divorce. — See Kerr's Cyc. C. C. §§ 146, 147 and notes. Evidence — Corroboration, — as to necessity for, see Kerr's Cyc. C. C. § 130 and note. Insanity — As defense to action for divorce on tlie ground of adultery, see Kerr's Cyc. C. C. § 93, note pars. 7-9. Residence — Allegation and proof of necessary — Complaint and cross-complaint. — See Kerr's Cyc. C. C. § 92, note pars. 53-55. Stipulation as to division of, — as to force and effect of, see Kerr's Cyc. C. C. § 146 and note. Summons — Service of. — as to, see Kerr's Cyc. C. C. P. §411 and note. 54 TIt.I,ch.II,art.II.] adultery— cruelty. §§ 93. 94 §93. ADULTEUY DKFINKU. Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's liusbaud or wife. HlMtorr: Enacted Marcli 21, 1872. See Korrs Cyc. C. C. for 34 pars, annotation. 51 C. 543, 544 (referred to witli otlier sections and held not iipplioable). As to Insanity in divorce casi-s, see Kerr's Cyc. C. C. § 92, note pars. 41, 42. Admission and confessions of defendant — C<>mpet<'ncy — Siif- nclency.— See Kerr's Cyc. C. C. § 130 and note; K.-rr's Cyc. C. C. 1'. i 2079 and note. Di.spositlon of coinnuinity ijroperty on divorce for adultery. — See post I 146, sub. 1 and note. Recrimination, — as to generally, see Kerr's Cyc. C. C. J 122 and note. Second marriage pending appeal — Bigamy. — See Kerr's Cyc. C. C. § 61 and note. Second marriage before llnal decree — Bigamy. — See Kerr's Cyc. C. C. § 61 and note. §94. EXTHKMK ( lU'ELTY, >VH AT. Hxtreme cruelty is the wronjiful inlliction of grievous [1] luidily Injury, or griev- ous [2] mental suffering, upon the other by one parly to the marriage. lllMtoryt Knact<'d Marcb 21, 1872: amcMided by Code Commi.s- slon. Act Marcb 16, lOni. Stats, and Amdts. 1900-1. j). 337, hold uiicon.stltutional ; see liistory. i 4 aiiti-; .■iniiiidetl M.ircli 7. 190."). Slats, and Amdts. 1905, p. 75. See Kerr's Cyc. C. C. for 45 pars, annotation. 61 C. 643. 544 (referred to with other sections ami bold not applicable): 85 C. 251, 265, 256 (construed and applied); 267, 268. 269 (cited and construed, dis. op.), 24 V. 649, 650, 654, 858, 9 L. 487; 86 C. 219, 224, 24 P. 996 (construed and appllod with other sections); 95 C. 171. 17fi, 177. 30 P. 298. 16 L. 660 (construed and applied): 124 C. 651. 652. 57 P. 673 (construed and applied); 148 ('. 239, 244, 82 P. 967 (cited as to extreme cruelty). .\s to findings, generally, see Kerr's Cyc. C C. S 92, note pars. 1-36. Refusal to permit — as amounting to desertion, see Kerrs Cyc. C. C. S 95 and note pars. 10-12, §96, note pars. 3-6. 66 §§ 95-97 CIVIL CODE. [Div.I,Pt.III. § 95. DESERTIOJf, WHAT. Wilful desertion is the volun- tary separation of one of the married parties from the other with intent to desert. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 19 pars, annotation. 51 C. 543, 544 (referred to with other sections); 65 C. 629, 632. 4 P. 6-69, 670 (applied with § 103); 122 C. 253, 255, 256, 54 P. 847 (applied with other sections); 130 C. 574, 577, 62 P. 1064 (re- ferred to witli "wilful" as used in wilful shooting by officer) ; 134 C. 88, 89, 66 P. 73 (applied with other sections); 142 C. 519, 523, 77 P. 1106 (applied). As to refusal of marital and sexual intercourse, — see Kerr's Cyc. C. C. §94, note pars. 43, 44; post §36, note pars. 4, 5. Condonation, — as to, see Kerr's Cyc. C. C. § 117 and note. §96. DESERTION, HOW MANIEESTED. Persistent refusal [1] to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not malce such refusal reasonably necessary, or [2] 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 51 C. 543, 544 (referred to); 136 C, 195, 196, 68 P. 694 (ap- plied); 137 C. 559, 560, 70 P. 628 (construed and applied); 144 C. 625, 627, 78 P. 19 (applied). § 97. IN CASE OF STRATAGEM OR FRAUD, WHO COM- MITS DESERTION. When one party is induced, by the strat- agem 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. History: Enacted March 21, 1872. 51 C. 543, 544 (referred to); 74 C. 608, 613, 16 P. 518, 520 (ap- plied with other sections). 56 h Tit.I,ch.II,art.II.] separation— DESERTION. §§ 98-100 §98. m CASE OF CRUELTY, WHERE ONE PARTY LEAVES THE OTHER, >VHO COMMITS DESERTION. Departure or absence of one party from the family dwelling- place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is deser- tion by the other party. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 51 C. 543, 544 (section sets^ forth state of facts which may manifest desertion); 74 C. 608, 613, 16 P. 518, 520 (applied with other sections); 86 C. 219, 224, 24 P. 996 (distinguished from §94); 122 C. 395, 397, 398, 55 P. 152 (applied); 134 C. 205, 207, 66 P. 208 (applied). §99. SEPARATION BY CONSENT NOT DESERTION. Separation by consent, with or without the understanding that one of tlie parties will apply for a divorce, is not deser- tion. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 74 C. 608, 613, 16 P. 518, 520 (applied with other sections); 106 C. 541, 544, 39 P. 931 (applied with other sections); 140 C. 112, 115, 73 P. 808 (applied with other sections). Consent — Corrupt connivance, by, — as to, see Kerr's Cyc. C. C. § 113 and notes. Husband may select home — Duty of wife to abide. — See Kerr's Cyc. C. C. § 103 and note. § 100. ABSENCE BECOMES DESERTION, WHEN. Absence or separalion, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separa- tion. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 189. 106 C. 541, 544, 39 P. 031 (referred to). As to when desertion commences, see Kerr's Cyc. C. C. § 100, note. 57 §§ 101-103 CIVIL CODE. [Div.I,Pt.III. §101. CONSENT TO SEPAIUTE REVOCABLE. Consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restora- tion, but the other refuses it, such refusal is desertion. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 106 C. 541, 544, 39 P, 931 (construed and applied); 134 C. 346, 347, 66 P. 367 (applied); 140 C. 112, 115, 117 (construed and applied), 125 (applied), 71 P. 108, 110 (cited), 73 P. 808, 813 (cited in dis. op.); 147 C. 175, 177, 81 P. 413, 414 (applied). § 102. DESERTION, HOW CURED. If one party deserts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfil the marriage contract, and solicits condonation, the desertion is cured. If the other party refuse such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal. History: Enacted March' 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 190. See Kerr's Cyc. C. C. for 10 pars, annotation. 65 C. 629, 632, 4 P. 669 (construed and applied); 123 C. 653, 654, 656, 56 P. 554 (applied and held that period in which recon- ciliation may be made does not apply to offer during pendency of suit for maintenance); 126 C. 123, 128, 58 P. 456 (construed and applied with other sections); 71 P. 108, 110 (cited); 147 C. 52, 54, 81 P. 297 (construed). S 103. WIEE MUST ABIDE BY HUSBAND'S SELECTION OF HOME, OR IT IS DESERTION ON HER PART. 'The hus- band may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 136 C. 195, 203, 68 P. 694 (applied); 6 C. A. 657, 662, 92 P. 1037 (referred to). Difference between husband and wife as to place of future abode, — as to, see Kerr's Cyc. C. C. § 99, note par. 9. 58 I I J Tit.I.ch.II.art.H.] wilful NEGLECT. §§104-107 §10*. II TIIK I'LA(K IS IMIT, AM) WIFi: KKHSKS TO tO>FOK.M, IT IS DLStlMlO.N UV THE JILSHAM). If the place or mode of living selected by the husband is unrea- sonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him. HlNtor>-: Enacted Marcli 21, 1872. See Kerr's Cyo. C. C. for 2 pars, annotation. 74 C. 608, 613, 16 P. 518, 520 (referred to witli otlier sections in discussion). § 105. WILFIL >E(;LI:( T, »TIAT. Wilful neglect is [1] the neglect of the husband to provide for his wife the com- mon necessaries of life, he having the ability to do so; or it is [2] the failure to do so by reason of idleness, profligacy, or dissipation. lll.H; 130 C. 574, 577, 62 P. 1064 ("wil- ful ni-plect" in section ddini'dt. § 107. HAurrr.VL inthmtkhaxe fok one yeak. [1] Wilful desertion, [2] wilful neglect, or [51] habitual intem- 59 § 107 CIVIL CODE. [Div.I,Pt.III. perance must coutiuue for one year before either is a ground for divorce. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 74 C. 608, 613, 16 P. 518, 520 (cited with other sections); 122 C. 253, 255, 256, 54 P. 847 (applied); 123 C. 653, 654, 56 P. 554 (sec- tion does not apply to offer of reconciliation made at time of suit for maintenance); 135 C. 397, 87 A. S. 118, 67 P. 506 (ap- plied); 153 C. 56, 58, 94 P. 244 (cited). I GU Tit.I,ch.ir,art.III.] DIVORCE denied. §111 ARTICLE III. CAUSES FOR DENYING DIVORCE. § 111. Divorces denied, on showing what. § 112. Connivance, wliat. S 113. Corrupt consent, how manifested. § 114. Collusion, what. § 115. Condonation, what. § 116. Requisites to condonation. § 117. Condonation implies what. I 118. Evidence of condonation. § 119, Can only be made, when. § 120. Concealment of facts in certain cases makes condonation void. § 121. Condonation, how revoked. § 122. Recrimination, what. S 123. Condonation, when to bar defense. § 124. Divorce, when denied. § 125. Lapse of time establishes certain presumption. § 126. Presumption may be rebutted. § 127. Limitation of time. § 128. Actions in divorce case. — [Plaintiff must be resident.] § 129. Proof of actual residence required — Presumptions do not apply. § 130. Divorce by default, etc. — [Not granted.] § 131. Interlocutory judgment. § 132. Final judgment, after one year. §111. DIVORCES DENIED, ON SHO^YING WHAT. Divorces must be denied upon showing: 1. Connivance; or, 2. Collusion; or, 3. Condonation; or, 4. Recrimination; or, 5. Limitation and lapse of time. History: Enacted March 21, 1872. 74 C. 608, 612, 613, 16 P. 518, 519, 520 (cited with other sec- tions). Wife living separate from husband. — Without cause or just ground for divorce, — as to whether a wife, under such circum- stances, is entitled to maintenance from her husband, see Kerr's Cyc. C. C. § 136 and note. 61 §§ 112-115 CIVIL CODE. [Div.I.Pt.III. §112. CONNIVANCE, WHAT. Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. History: Enacted March 21, 1872. 121 C. 11, 12, 53 P. 403 (applied). Connivance and collusion imply consent. — See Kerr's Cyc. C. C. $112, note. §113. CORKUPT CONSENT, HOW MANIFESTED. Cor- rupt consent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of. History: Enacted March 21, 1872. §114. COLLUSION, WHAT. Collusion is [1] an agreement between husband and wife that one of them sliall commit, or [2] appear to have committed, or to [3] be represented in court as having committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 65 C. 354, 355, 4 P. 229 (construed and applied with other sec- tions); 1-21 C. 11, 12, 53 P. 403 (construed and applied with other sections). § 115. CONDONATION, WHAT. Condonation is the condi- tional forgiveness of a matrimonial offense constituting a cause of divorce. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 102 C. 433, 438, 36 P. 767, 1037 (applied); 123 C. 653, 656, 56 P. 554 (applied); 147 C. 52, 54, 81 P. 297 (construed with other sec- tions); 1 C. A. 309, 310, 82 P. 90 (applied with § 116). As to condonation of recriminatory defense, see Kerr's Cyc. C. C. § 123 and note. As to validity of contracts for separation, see Kerr's Cyc. C. C. § 159 and note pars. 2-14, particularly par. 2. Revocation of condonation. — See Kerr's Cyc. C. C. § 121 and note. 62 Tit.I,ch.II,art.III.] CONDONATION. §§116-119 § 116. REQUISITES TO CONDONATION. The following requirements are necessary 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 95 C. 444, 446, 30 P. 590 (applied); 102 C. 433, 438, 36 P. 767. 11137 (applied); 147 C. 52, 54, 81 P. 297 (construed with other .-.ctlons); 1 C. A. 309, 310, 82 P. 90 (applied with §115). § 117. ( ONDONATION IMPLIES WHAT. Condonation implies a condition subsequent; that the forgiving party must be treated with conjugal kindness. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. (C. Jan. 26, 1894), 35 P. 637, 638 (applied); 117 C. 443, 446. 49 P. 557 (applied): 120 C. 184, 189, 52 P. 298 (applied); 147 C. 52, r>J,'81 p. 297 (construed with other sections). §11S. EVIDENCE OF CONDONATION. Where the cause of divorce consists [1] of a course of offensive conduct, or [2] arises, in cases of cruelty, from excessive acts of ill-tr'^at- ment which may, aggregately, constitute the offense, [a] cohabitation, or [b] passive endurance, or [c] conjugal kind- ness, shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone. HlMtoryi Enacted Marcli 21, 1S72: annnd.^d March 3n, 1S7I, Code Amdts. 1873-4, p. 190. See Kerr's Cyc. C. C. for 6 i>ars. annotation. (C. Jan. 26, 1894), 35 P. 637. 638 (applud): 117 C. 44:!. 447. I'.) P. 557 (applied): 119 C. 183, 188. 192, 4S P. 730, 51 P. 183 ^■.l\>■ plied); 132 C. 473. 476, 65 P. 772 (applied). § 119. CAN ONLY HE MADE, AVIIKN. In cases mentioned in the last section, condonation can be made only after the 63 §§ 120-123 CIVIL CODE. [Div.I.Pt.III. cause of divorce has become complete, as to the acts com- plained of. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 190. §120. CONCEALMENT OF FACTS IN CERTAIN CASES MAKES CONDONATION VOID. A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condonation. History: Enacted March 21, 1872. § 121. CONDONATION, HOW REVOKED. Condonation is revoked and the original cause of divorce revived: 1. When the condonee commits acts constituting a like or other cause of divorce ; or, 2. When the condonee is guilty of great conjugal unkind- ness, 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. (C. Oct. 20, 1892), 31 P. 258, 259 (applied); 120 C. 184, 189, 52 P. 298 (applied); 121 C. 11, 12, 53 P. 403 (applied). § 122. RECRIMINATION, WHAT. Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 63 C. 352, 353 (applied); 74 C. 489, 492, 5 A. S. 460, 16 P. 248, 249 (applied); 119 C. 183, 189, 48 P. 730, 51 P. 183 (applied); 137 C. xix, 70 P. 304, 305 (applied); 148 C. 239, 245, 82 P. 967, 970 (cited). § 123. CONDONATION, WHEN TO BAR DEFENSE. Con- donation of a cause of divorce, shown in the answer as a recriminatory defense, is a bar to such defense, unless the 64 Tit.I.ch.II.art.TIL] DIVORCE DENIED. §§124,125 condonation be revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the condona- tion, and before the accruing or completion of the cause of divorce against which the recrimination is shown. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 190-191. § 124. DIVOltCE, WHEN DENIED. A divorce must be denied: 1. When the cause is adultery and the action is not com- menced within two years after the commission of the act of adultery, or after its discovery by the injured party; or, 2. When the cause is conviction of felony, and 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 unreasonable lapse of time before the commencement of the action. HiNtory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 191. See Kerr's Cyc. C. C. for 3 pars, annotation. 74 C. 608, 613, 16 P. 518, 520 (cited witli other sections); 104 C. 293, 296, 37 P. 935 (applied); 121 C. 11, 12, 53 P. 403 (applied); 140 C. 112, 117, 118, 73 P. 808 (applied); 153 C. 56, 58, 94 P. 244, 245 (cited with S 125, as not applicable). § 12.-). LAPSE OF TIME ESTAllEISHES ( ERTAIX PKE- SUMPTIONS. Unreasonable lapse of time is such a delay in commencing the action as establishes the presumption that there has been connivance, collusion, or condonation of the offense, or full acquiescence in the same, with intent to con- tinue the marriage relationsf.] notwithstanding the commis- sion of such offense. IliMtory: lOnactcd Marcli 21. 1S72. See Kerr's Cjc. C. C. for 3 pars, annotation. 121 C. 11, 12, 53 P. 403 (applied); 140 C. 112. 117. 118 (applii^dt; 73 P. 808, 153 C. 56, 58, 94 P. 244, 245 (cited with § 124, as not applicable). Kerr's C. C. — 3 65 §§ 126-129 CIVIL, CODE. [Div.I,Pt.III. § 126. PRESUMPTIONS MAY BE REBUTTED. The pre- sumptions arising from lapse of time may be rebutted by- showing reasonable grounds for the delay in commencing the action. History: Enacted March 21. 1872. §127. LIMITATION OF TIME, There are no limitations of time for commencing actions for divorce, except such as are contained in section one hundred and twenty-four. History: Enacted March 21, 1872. For commissioners' comment on this section, see Kerr's Cyc. C. C. § 127, note. §128. ACTIONS IN DIVORCE CASES— [PLAINTIFF MUST BE RESIDENT]. 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 commencement of the action. History: Enacted March 21, 1872; amended March 10, 1891, Stats, and Amdts. 1891, p. 52. See Kerr's Cyc. C. C. for 11 pars, annotation. 74 C. 608, 613, 16 P. 518, 520 (cited with other sections): 96 C. 4, 6, 30 P. 803, 805 (cited): 100 C. 11, 13, 15, 17, 34 P. 523 (con- strued and applied with other sections); 128 C. 330, 332, 333, 60 P. 854 (referred to in determining whether sheriff's return upon subpoena is proof of residence); 140 C. 476, 483, 98 A. S. 73, 74 P. 28 (determining constitutionality of this and other sec- tions): 153 C. 254, 255, 256, 258, 259, 260, 94 P. 1044, 1045, 1046, 1047 (discussed with otlier sections with respect to non-resident wife's right to sue for maintenance). Residence — Of plaintiff within state and county for statutory period essential to right to maintain action. ^ — See Kerr's Cyc. C. C. § 92 and note. §129. PROOF OF ACTUAL RESIDENCE REQUIRED- PRESUMPTIONS DO NOT APPLY. In actions for divorce the presumption of law, that the domicile of the husband is the domicile of the wife, does not apply. After separation, each may have a separate domicile, depending for proof upon actual residence, and not upon legal presumptions, . History: Enacted March 21, 1872. 66 Tit.I.ch.II.art.III.] NO default. §§ 130, 131 See Kerr's Cyc. C. C. for 7 pars, annotation. G6 C. 309, 310, 5 P. 516 (erroneously cited for §137); 128 C. L'TO, 274, 60 P. 867, 49 L. 138 (applied); 132 C. 85, 92. 84 A. S. uu, 64 P. 103 (construed and applied). § 130. DIVOIU E BY DEFAULT, ETC.— [>0T GRANTED]. No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission, or testi- mony of the parties, or upon any statement or finding of fact made by referee; but the court must, in addition to any state- ment or finding of the referee, require proof of the facts alleged, and such proof, if not taken before the court, must be upon written questions and answers. HiMtory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 191. See Kerr's Cyc. C. C. for 15 pars, annotation. 49 C. 94 (applied); 63 C. 578, 580 (construed and applied): 65 C. 354, 355, 4 P. 229 (construed and applied); (C. May 28, 1887). 14 P. 92, 95 (applied); 67 C. 24, 7 P. 3 (applied); 74 C. 608, 614. 16 P. 518, 520 (applied); 86 C. 219, 221, 24 P. 996 (applied): 88 C. 45, 48, 25 P. 1062 (con.'^trued and ajjplied); 94 C. 225, 227, 29 P. 499 (construed and applied); 120 C. 33, 37, 65 A. S. 147, 52 P. 122 (construed and applied); 120 C. 184, 186, 52 P. 298 (con- strued and applied); 124 C. 57, 58, 56 P. 629 (applied); 140 C. 112, 119, 73 P. 808 (construed and applied); 140 C. 476, 483, 74 P. 28 (referred to in discussing constitutionality of §§ 131 and 132); 145 C. 784. 787. 79 P. 531 (applied): 148 C. 239, 242, 243. 82 P. 967 (cited as to corroboration and purpose of section stated); 1 C. A. 309. 310, 82 P. 90 (referred to); 6 C. A. 657, 659. 92 P. 1037 (applied). § i:n. I>TEHI,(M ITOHV Jl D(;.MK>T, In actions for divorce, the court must file its decision and conclusions of law as in other cases, and if it determines that no divorce shall be granted, final judgment must thereupon be entered accordingly. If it determines that the divorce ought to be granted, an interlocutory judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce, and from such interlocutory judgment an appeal may be -taken within six months after its entry, in the same manner and with like effect as if the judgment were final. After the entry of the interlocutory judgment, neither 67 § 132 CIVIL CODE. [Div.I.Pt.III. party shall have the right to dismiss the action without the consent of the other. HLstory: Enacted March 2, 1903, Stats, and Amdts. 1903, p. 75, amended April 16, 1909, Stats, and Amdts. 1909, p. 941. See Kerr's Cyc. C. C. for 6 pars, annotation. 140 C. 476, 479, 480 (applied), 488 (constitutionality upheld), 98 A, S. 73, 74 P. 28; 143 C. 630, 631, 77 P. 647, 648 (referred to): 146 C. 245, 247, 249, 252, 79 P. 891, 106 A. S. 23 (purpose of this section and §132 stated); 146 C. 257, 259, 79 P. 897 (cited as to duty of court in entering- judgment); 147 C. 336, 337, 82 P. 79 (construed with §132); 5 C. A. 262, 263, 90 P. 53 (section con- templates what). § 132. FINAL JUDGMENT, AFTEK ONE TEAR. When one year has expired after the entry of such interlocutory judg- ment, the court on motion of either party, or upon its own motion, may enter the final judgment granting [1] the divorce, and such final judgment shall [2] restore them to the status of single persons, and [3] permit either to marry after the entry thereof; and [4] such other and further relief as may be necessary to complete disposition of the action, but If any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed. The death of either party after the entry of the interloc- utory judgment does not impair the power of the court to enter final judgment as hereinbefore provided; but such entry shall not validate any marriage contracted by either party before the entry of such final judgment, nor constitute any defense of any criminal prosecution made against either. History: Enacted March 2, 1903, Stats, and Amdts. 1903, p. 76. See Kerr's Cyc. C. C. for 4 pars, annotation. 79 C. 336, 339 (erroneously cited for § 137), 21 P. 838, 839 (cor- rect citation); 140 C. 476, 480 (applied), 488 (bonstitutionality upheld), 98 A. S. 73, 74 P. 28; 143 C. 630, 631, 77 P. 647, 648 (re- ferred to); 146 C. 245, 247, 249, 252, 79 P. 891, 106 A. S. 23 (pur- pose of this section and §132 stated); 147 C. 336, 337,' 82 P. 79 (construed with §131); 5 C. A. 262, 264, 265, 90 P. 53 (cited, as to effect of plaintiff's death). 68 Tit.I.ch.II.art.IV.] RELIEF— EXPENSES. §§136.137 ARTICLE] IV. GENEUAI. PIK J VISIONS. S 13G. Relief may bf adjudsod in some cases, wlioro si'paration is denied. § 137. Expenses of action for divorce- [alimony]. $ 138. Orders respecting custody of children. S 139. Support of wife and children on divorce or separation grapted to wife. § 140. Security for maintenance and alimony. § 141. Court shall resort to what, in executing certain sections. §142. If wife has sufficient for hor support, court may with- hold allowance. § 143. Community and sei)arate property may be sul)jected to support and educate children. 5 144. Legitimacy of issui — [Divorce for .ulull ■•i\- "il" )iii>ii.:i n.l i. H 145. Sanu — [I'"or adultery of wife]. § 146. Disposition of community propt-rty. § 147. Same — [Duty of court to dispose of]. I 148. Saint — [Subji-ct to rcvi.sion on appeal], §!:{(;. KKIJKF MAY HK AD.HIK;!- I) IN MKME ( ASES, WIIKKK SKrAHATM>N IS DEMKI). Though judgment of divorce is denied, the court may, in an action for divorce, pro- vide for the maintenance l)y the husband, of the wife and children of the niarriafjo, or any of them. IIlMt<-ry: Enact»>d March L'l, 1S72; amended by Code Comml.s- sion. Act March 1 G, 1001. Stats, and Amdts. 1900-1, p, 337, held unconstitutional; see history. S 4 ante: amnuli-d March 21, IDO.'i, Stats, and Amdts. 1905, p. f)34. See Kerr's Cyc. C. C. for 24 pars, annotation. 68 C. 588. 589. 590, 9 P. 842 (construed and appli.d); 74 C. 608, 611. 612. 614. 16 P. 518. 519. 520 (construed and applied): 79 C. 336. 338. 339. 21 P. 838. 839 (construed and applied): (C. Oct. 2. 1889), 22 P. 284 (applied): 124 C. 48. 53. 54. 55. 71 A. S. 17. 56 P. 630. 631. 57 P. 81 (construed and applied): 126 C. 123. 126. 127. 129. 58 P. 456 (construed and applied with other sec- tions): 147 C. 175. 176. 81 P. 413. 414 (referred to). s i:J7. expenses oi V(TI(>\ I ok nivoiM E. [AM. M().\Y.] When an action for divorce is pending, tlie court 69 § 137 CIVIL CODE. [Div.I,Pt.III. may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and her children, or to prosecute or defend the action. [Permanent support.] When the husband wilfully deserts the wife or when the husband wilfully fails to provide for the wife or when the wife has any cause of action for divorce as provided in section ninety-two of this code, she may, with- out applying for a divorce, maintain in the superior 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 husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, and execution 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 order or orders may be varied, altered, or revoked at the discretion of the court. [In effect when.] Sec. 2. This act shall take effect and be in force immediately upon its passage and approval. History: Enacted March 21, 1872; amended March 20, 1878, Code Amdts. 1877-8, p. 76; April 6, 1880, Code Amdts. (C. C. pt.) p. 4; March 18, 1905, Stats, and Amdts. 1905, c. CCXVI, p. 205; amended March 1, 1907, Stats, and Amdts. 1907, p. 82, Kerr's Stats, and Amdts. 1906-7, p. 400. See Kerr's Cyc. C. C. for 126 pars, annotation. 55 C. 316, 319, 320 (applied); 67 C. 176, 177, 178, 7 P. 480 (ap- plied); 67 C. 185, 201, 203, 7 P. 456, 635, 8 P. 709 (applied and construed with other sections); 75 C. 1, 38, 16 P. 345, 362 (con- strued and applied); 79 C. 336, 339 (erroneously cited as §132 and applied), 21 P. 838 (correct citation); 80 C. 141, 144, 22 P. 72 (construed and applied); 83 C. 460, 463, 17 A. S. 266, 23 P. 395 (construed and applied); 91 C. 428, 431, 27 P. 732, 31 P. 258, 259 (construed, power to grant alimony is not exhausted upon rendition of judgment); 95 C. 339, 342, 30 P. 548 (scope of sec- tion stated); 97 C. 125, 126, 127, 31 P. 906 (construed, showing' basis of action); 98 C. 320, 321 (construed and applied — er- roneously cited as §137 C. C. P.), 33 P. 114, 115 (correct cita- tion); 99 C. 621, 34 P. 339 (construed and applied); 100 C. 493, 494, 495, 35 P. 87 (construed and applied); 104 C. 45, 47, 43 A. S. 70 Tlt.I,Ch.II,art.IV.] CUSTODY OF children. § 138 70, 37 p. 770 (applied with other sections); 104 C. 293, 297, 37 P. 935 (referred to); 108 C. 45, 46, 40 P. 1056 (construed and applied ■Without citing); 109 C. 544, 545, 42 P. 452 (construed and ap- ,, plied); 109 C. 643, 648, 649, 42 P. 428 (referred to in discussion): J 113 C. 268, 271, 45 P. 332 (applied); 115 C. 266, 273, 275. 56 A. S. 97, 47 P. 37, 37 L. 626 (applied with other sections); 117 C. 633, 634, 49 P. 836, 38 L. 175 (referred to in discussion); 122 C. 395. 397, 398. 55 P. 152 (applied); 123^. 653, 654, 56 P. 554 (applied); 124 C. 389, 395, 396, 397, 71 A. S. 82, 57 P. 227, 45 L. 793 (con- strued and applied); 126 C. 123, 125, 126, 127, 128, 129, 58 P. 456 (construed and applied with other sections); 135 C. 121, 125, 67 P. 20 (applied); 136 C. 302, 304, 68 P. 971 (applied); 137 C. 225, 226, 69 P. 1061 (construed and applied); 143 C. 630, 633, 77 P. 647 (referred to with other sections); 144 C. 322, 326, 78 P. 16, 17 (referred to); 146 C. 237, 242, 79 P. 885, 887 (cited in discussing allowance for future support); 147 C. 57, 59, 60, 81 P. 295 (construed witli § 140); 147 C. 143. 147, 81 P. 411, 413 (construed); 147 C. 175, 176. 81 P. 413, 414 (referred to); 148 C. 239. 240. 82 P. 967, 968 (referred to); 150 C. 6, 7, 8, 87 P. 1020 (construed witli §140 as to appointment of receiver); 153 C. 254, 255, 256, 257. 258, 259. 260. 261. 94 P. 1044. 1045. 1046. 1047 (construed with other sections as to right of non-resident wife to maintain action for maintenance); 1 C. A. 152. 155, 81 P. 1023, 1024 (cited); 4 C. A. 604, 609, 88 P. 734, 735 (object of section stated). Alimony allowed — Cannot be attaclied to satisfy previous debts of wife. — See Kerr's Cyc. C. C. § 139, note. Allowance for wife and children in grant of divorce or sep:i- ration to wife, see Kerr's Cyc. C C. § 139 and note. Fund out of which alimony or maintenance payable. — See Kerr's Cyc. C. C. § 139 and note. § 13S. OKDKKS KESPKCTIXJ ( I'STODY OF ( HII,I)HE>. In actions for divorce the court may, [I] (hnini; the pend- ency of the action, or [2] at the final hearing or [3] at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, edu- cation, maintenance and support of sucli minor children as may seem necessary or proper, and may at any time modify or vacate the same. Illnlory! Fnacted March 21, 1S72; amended March 3, 1905, Stilts, and Amdt's. 1905, p. 43. See Kerr's Cyc. C. C. for 71 pars, annotation. 95 C. 374, 377, 30 P. 561 (applied); 104 C. 45, 4S. t:^ A. S Tf*. 71 § 139 CIVIL CODE. [Div.I,Pt.III. 37 P. 770 (applied); 105 C. 258, 261, 38 P. 729 (construed and applied); 106 C. 377, 380, 39 P. 779 (construed and applied with other sections); 114 C. 542, 545, 55 A. S. 86, 46 P. 609 (construed and applied); 118 C. 18, 21, 50 P. 9 (applied); 120 C. 143, 146, 147, 52 P. 147, 40 L. 585 (construed and applied); 125 C. 65, 68, 69, 70, 72, 57 P. 677 (construed and applied); 135 C. 192, 193, 67 P. 45 (construed and applied); 137 C. 493, 495, 70 P. 473 (construed and applied with other sections); 149 C. 224, 226, 86 P. 505, 506 (cited, power of court to modify decree); 4 C. A. 264, 266, 87 P. 561 (power of court to vacate or modify decree). As to obligation of parents for support and education of children, see Kerr's Cyc. C. C. § 196 and note. § 139. SUPPORT OF WIFE AND CHILDREN ON DIVORCE OR SEPARATION GRANTED TO WIFE. Where a divorce is granted for an offense of the husband, the court may compel him [1] to provide for the maintenance of the children of the marriage, and [2] to make such suitable allowance to the wife for her support, [a] 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 83 pars, annotation. 52 C. 383, 384 (construed and applied); 59 C. 417, 418 (applied); 75 C. 1, 46, 16 P. 345, 365 (referred to in discussion); 79 C. 511, 515, 21 P. 1095, 1096 (construed and applied); 79 C. 600, 602, 603, 21 P. 954, 955 (applied with §1007 Code Civ. Proc); 82 C. 110, 112, 113, 23 P. 37 (construed and applied with other sections) ; 83 C. 460, 463, 465, 17 A. S. 266, 23 P. 395 (construed and applied); 94 C. 254, 255, 29 P. 774 (applied); 95 C. 374, 377, 30 P. 561 (applied with other sections); 102 C. 433, 440, 36 P. 767, 1037 (applied); 104 C. 45, 47, 43 A. S. 70, 37 P. 770 (construed and held not ap- plicable) ; 105 C. 258, 261, 38 P. 729 (construed and applied); 114 C. 542, 545, 547, 55 A. S. 86, 46 P. 609 (construed and applied with other sections); 124 C. 583, 588, 57 P. 582 (construed and ap- plied); 125 C. 65, 68, 57 P. 677 (construed with other sections); 144 C. 322, 326, 78 P. 16, 17 (construed with § 140); 147 C. 57, 59, 60, 81 P. 295, 296 (construed with §137); 150 C. 99, 103, 88 P. 267, 268 (cited as to power of court to modify orders); 4 C. A. 97, 100, 102, 87 P. 205 (construed and applied). As to circumstances of defendant being taken into considera- tion in fixing allowance, see Kerr's Cyc. C. C. § 137 note par. 83. As to suit by wife for maintenance without prayer for divorce, see Kerr's Cyc. C. C. § 137, note pars. 74 et seq. 72 Tit.T.ch.II.art.IV.] MAINTENANCE. ETC. §§140.141 §140. SECriHTY VOK .H AIMENWCE AM) ALl.>r(»\Y. The court may require the husband to give reasonable secur- , ity for providing [1] maintenance or [2] making any pay- I ments required under the provisions of this chapter, and may > enforce the same [a] by the api)ointment of a receiver, or [b] by any other remedy applicable to the case. HiNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 32 {lars. annotation. 67 C. 185, 202, 8 P. 709 (applied); 111 C. 488, 495. 44 P. 177 (con- strued and applied); 114 C. 542, 546, 55 A. S. 86. 46 P. 609 (con* strued and applied): 115 C. 266, 274, 275, 56 A. S. 97, 47 P. 37. 37 L. 626 (construed and applied); 116 C. 47, 51, 47 P. 869, 48 P. 121 (construed and applied); 123 C. 196, 200. 55 P. 902 (applied and held to be the only statutory power giv-en upon subject of enforcement of alimony); 124 C. 48. 55, 71 A. S. 17, 56 P. 630. 57 P. 81 (applied); 124 C. 583, 588, 589. 57 P. 582 (applied); 126 C. 123, 129. 58 P. 456 (applied); 144 C. 322, 325. 326. 78 P. 16 (con- strued with S139); 147 C. 57, 59, 61, 81 P. 295 (construed with § 137); 150 C. 6, 8, 87 P. 1020 (construed with S 137 as to appoint- ment of receiver). As to enforcement by contempt proceedings, see Kerr's C.\c. C. C. 8 140 par. 2, and §137 note par. 106 et seq.; S 139 note pars. 26-32. Wife creditor of husband to extent of allowance made. — See Kerr's Cyc. C. C. § 139 note. Sin. (OIHT SI1AI,I, KKSOHT TO WHAT, IN EXEC IT- 1\D AND WIFE MAY MAKE ((»TRACTS. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respect- ing property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on trusts. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 137 pars, annotation. 52 C. 334. 335 (construed and applied); 53 C. 456, 459, 460, 461 (construed and applied) ; 54 C. 178, 179 (construed) ; 55 C. 52, 58, 59 (referred to); 59 C. 507, 513, 516 (referred to); 64 C. 397, 398, 399, 1 P. 479 (construed and applied); 67 C- 293, 294, 7 P. 705 (con- strued and applied); 67 C. 536, 540, 8 P. 63 (construed and ap- plied); 70 C. 250, 252, 11 P. 643 (construed and applied); 70 C. 282, 285, 11 P. 719, 720, 721 (construed and applied); 73 C. 583, 585, 2 A. S. 829, 15 P. 287 (construed and applied); 74 C. 345, 348, 349, 16 P. 189 (construed and applied); 75 C. 525, 528, 7 A. S. 189, 17 P. 689 (construed and applied); 78 C. 310, 312, 12 A. S. 58, 20 P. 715, 3 L. 781 (construed and applied); 83 C. 274, 278, 23 P. 348 (construed and applied); 87 C. 643, 649, 650. 25 P. 922 (cited); 94 C. 446, 461, 29 P. 957 (construed and applied); 96 C. 433, 439, 31 P. 358 (construed and applied); 96 C. 609, 610, 611. 31 P. 618 (construed and applied); 97 C. 131, 134, 31 P. 908 (construed and applied); 97 C. 259, 262, 32 P. 171 (cited); 98 C. 454, 460. 33 P. 335 (construed and applied); 100 C. 276. 279, 280, 38 A. S. 287. 34 P. 775 (construed and applied); 103 C. 97, 100, 101, 37 P. 189 (construed and applied); 106 C. 453, 455, 39 P. 756 (applied); 114 C. 566, 568, 55 A. S. 90, 46 P. 667 (construed and applied); 115 C. 663, 672, 47 P. 691 (construed and applied); 49 P. 129, 130 (dis- cussed with other sections); 120 C. 322, 323, 324 (applied witii other sections), 326 (referred to in dis. op. as difficult of con- struction), 52 P. 723, 725; 121 C. 92, 94, 95, 53 P. 362 (construed and applied); 122 C. 364, 366, 55 P. 9 (referred to with § 159); 123 C. 491, 496, 56 P. 254 (referred to with other sections); 126 C. 30, 33, 58 P. 324 (construed and applied); 129 C. 283, 289, 61 P. 907, 50 L. 548 (construed); 130 C. 392, 393, 80 A. S. 138, 62 P. 615 79 § 158 CIVIL CODE. [Div.I.Pt.III. (construed); 134 C. 170, 172, 173, 174, 175, 66 P. 231 (construed and applied); 134 C. 603, 606, 65 P. 321, 66 P. 860 (construed and applied); 134 C. 170, 172, 173, 175, 66 P. 231 (cited) ; 135 C. 316, 317, 318, 67 P. 778 (construed); 137 C. 685, 693, 695, 697, 70 P. 771 (construed and applied); 139 C. 246, 253, 72 P. 997 (construed and applied); 142 C. 119, 124, 75 P. 670 (cited); 143 C. 646, 649, 77 P. 657 (cited as to vesting of title under deed from husband to wife); 145 C. 596, 599, 79 P. 272 (construed with § 159); 2 C. A. 479, 483, 84 P. 326 (applied); 28 F. 599, 602 (applied). As to acknowledgment by married woman, see Kerr's Cyc. C. C. § 178 and note. As to adoption by husband of wife's void acts in her own behalf, see Kerr's Cyc. C. C. § 158 note par. 67. As to adoption by husband of wife's void contract, see Kerr's Cyc. C. C. § 158 note par. 67. As to agency of husband, see Kerr's Cyc. C. C. § 158 note pars. 111-122. As to capacity of all persons to contract, except ininors, insane persons, and persons deprived of civil rights, see Kerr's Cyc. C. C. §§ 33-40 and notes, and Kerr's Cyc. C. C. §§ 1556, 1557 and notes. As to champertous contract by wife with stranger, see Kerr's Cyc. C. C, § 158, note par. 74. As to conflict of laws concerning power of wife to convey separate property, see Kerr's Cyc. C. C. § 162 and note par. 70. As to contract abandoning homestead, see Kerr's Cyc. C. C. §§ 159, 1243 and notes. As to contracts concerning separate property of husband and wife and community property, see Kerr's Cyc. C. C. § 162 and note pars. 40-65, § 163 and note pars. 16-37; and § 172 and note pars. 41-85. As to contracts of separation and for support, see Kerr's Cyc. C. C. §§ 159, 160 and notes. As to conveyance of separate property by wife, see Kerr's Cyc. C. C. § 162 and note pars. 42-65. As to conveyance and encumbrance of separate property by wife, see Kerr's Cyc. C. C. § 162 and note pars. 42-65. As to conveyance by husband of homestead after divorce, see Kerr's Cyc. C. C. § 172 and note par. 60. As to delivery of chattels sold, see Kerr's Cyc. C. C. §§ 1753, 1754, 1756, 1758 and notes. As to delivery of deed in escrow, see Kerr's Cyc. C. C, § 158, note pars. 25-27. As to duress exerted by one spouse upon other, see Kerr's Cyc. C. C. § 158, note pars. 54, 55. As to effect of conveyance of commvinity property to wife, see Kerr's Cyc. C. C. § 164 and note par. 156. 80 Tit.I.Ch.III.] CONTRACTS HRTWKICN SPOUSES. § 158 As to effect of conveyance of liusbawd's separate property to wife, see Kerr's Cyc. C. C. S164 and note par. 157. As to gift by husband to wife of her earnings, see Kerr's Cyc. C. C. S 164 and note par. 164. As to husband's liability for necessaries when abandoned liy wife, see Kerr's Cyc. C. C. § 175 and note. As to husband's liability for wife's necessaries upon neglect to provide, see Kerr's Cyc. C. C. § 174 and note. As to married women becoming sole traders, rights, liaV)ili- ties, etc., see Kerr's Cyc. C. C. P. §§ 811-821 and notes. As to mortgage and note by wife, see Kerr's Cyc. C. C. § 162 pars. 79-89.. As to mortgages executed bj- hu.sband. see Kerr's Cyc. C. C. S 163 and note par. 20. As to mortgages execuli'd by wife, see Kerr's Cyc. C. C. § 162 and note pars. 79-101. As to mortgages given by wife as surety, see Kerr's Cyc. C. C. § 162 and note par. 79. As to mortgages on community property, see Kerr's Cyc. C C. Ji 172 and note par. 62. As to necessity for delivery as against creditors, see Kerr's Cyc. C. C. § 3440 and note. As to reformation, see Kerr'.s Cyc. C. C. S 162 and note pars. 145, 146. As to reformation of unacknowledged deed, see Kerr's Cyc. C. C. SS 1202-1204 and notes. As to rescission of contracts of si-paration, see Ki-rr's Cyc. C. C. $ 159 and note pars. 42-.'.5. As to sales by husband to wif^^ see Kirr's Cye. C. C. § 158, note pars. 44-46 this note. As to specific performance of unacknowledged deeds and con- tracts, see Kerr's Cyc. C. C. 88 1093, 1187 and nott-s. As to statute of frauds, see Kerr's Cyc. C. C. S 1624 and note. and Kerr's Cyc. C. C. 8 15S, note par. 93. As to undue inlluence, s<-e Kerr's Cyc. C. C. 8 1">S. note pars. 60-66. As to validity of oral promise to answer for debt, default. or miscarriage of another, see Kerr's Cyc. C. C. 8 1624 subd. 2 and note. Alimony — Validity ni" agr.'rnuiit a.'^ to. — Si'c K<'rrs Cyc. C. C. $ 146 and note. Alterations of legal relations as to property. — See Kerr's Cyc. C. C. 8 159 and note pars. 15-22. Antenuptial contracts and marriage settlements. — See Kerrs Cyc. C. C. § 178 and note. Common and joint property — contracts concerning. — See Kerr's Cvc. C. C. § 161 and note par. 3. 81 § 159 - CIVIL CODE. [Dlv.I,Pt.III. Conveyance from one spouse to other — Community prop- erty. — See Kerr's Cyc. C. C. § 172 and note pars. 59-61. Description of property in contract between husband and wife.- — See Kerr's Cyc. C. C. § 159 and note par. 16. Husband's separate property. — See Kerr's Cyc. C. C. § 163 and note pars. 21-37. Wife's separate property. — See Kerr's Cyc. C. C. § 162 and note par. 64. §159. HOW FAR MAY ALTER THEIR LEGAL RELA- TIONS. A husband and wife cannot, by any contract with each other, alter their legal relations, except [1] as to prop- erty, and except that [2] they may agree, in writing, to an immediate separation, and may [3] make provision for the support of [a] either of them and of [b] their children during such separation. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 193. See Kerr's Cyc. C. C. for 55 pars, annotation. 53 C. 456, 459 (construed) ; 54 C. 178 (referred to with other sec- tions) ; 64 C. 397, 399, 1 P. 479 (referred to); 73 C. 583, 585, 2 A. S. 829, 15 P. 287 (construed and applied); 96 C. 433. 439, 31 P. 358 (construed and applied); 100 C. 276, 379, 38 A. S. 287, 34 P. 775 (referred to with §158); 106 C. 453, 455, 39 P. 756 (construed and applied); 106 C. 541, 545, 39 P. 931 (construed and applied); 118 C. 499, 501, 62 A. S. 251, 50 P. 766 (construed and applied); 121 C. 92, 94, 53 P. 362 (construed and applied); ]22 C. 364, 366, 55 P. 9 (referred to); 126 C. 30, 33, 58 P. 324 (construed and applied); 145 C. 596, 599, 79 P. 272 (construed with §158); 149 C. 224, 225, 86 P. 505, 506 (referred to). As to acknowledgment of grant by married woman, see Kerr's Cyc. C. C. §§ 1093, 1191 and notes. As to capacity of husband and wife to contract inter se, see Kerr's Cyc. C. C. § 158 and note pars. 16-43. As to community property, see Kerr's Cyc. C. C. §164 and note par. 156. As to contracts between husband and wife, see Kerr's Cyc. C. C. § 158 and note pars. 16-43; As to contracts generally between husband and wife, see Kerr's Cyc. C. C. § 158 and note pars. 16-43. As to enforceability of provision for separation, see Kerr's Cyc. C. C. § 159, note par. 39. As to necessity of recording conveyances of real property, see Kerr's Cyc. C. C. §§ 1214, 1215 and notes. 82 I Tit.I,Ch.III.] SEPARATION— TEN-ANCY. §§ 160, 161 As to reasonableness of antenuptial contracts, see Kerr's Cyc. C. C. § 178 and note. As to right to custody of children, see Kerr's Cyc. C. C. §§ 197- 200 and notes. §160. COXSIDERATIOX FOR AGREEMENT OF SEPA- RATION. The mutual consent of the parties is a sufficient consideration for such an agreement as is mentioned in the last section. Hi-story: Enacted March 21, 1872. §161. MAY BE JOINT TENANTS, ETC. A husband and wife may hold property as joint tenants, tenants in common, or as community property. History: Enacted March 21, 1872: amended by Code Commis- sioners, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 338; held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 13 pars, annotation. 53 C. 456, 459, 460 (referred to in discussion); 70 C. 282, 285, 11 P. 719, 720, 721 (construed and applied); 116 C. 339, 341, 342, 343. 58 A. S. 170, 48 P. 228, 36 L. 497 (construed); 131 C. 64, 67, 63 P. 133 (construed and applied); 139 C. 559, 560, 562, 73 P. 433 (applied); 145 C. 477, 480, 78 P. 1045 (applied with §384, C. C. P.). As to abatement and survival of actions, see Kerr's Cyc. C. C. P. § 385 and note. As to actions for partition, generally, see Kerr's Cyc. C. C. P. ch. IV, pt. II, tit. X. As to disposal of community property by decree of divorce, see Kerr's Cyc. C. C. §§ 146-148 and notes. As to effect of partitioning land in which husband and wife have community interest, see post §164 and note par. 14. As to effect of purchasing land with separate and community funds, see Kerr's Cyc. C. C. § 164 and note pars. 135, 137, 184- 187. As to husband being agent of wife, see Kerr's Cyc. C. C. §158 and note pars. 111-122. As to husband being wife's agent, see Kerr's Cyc. C. C. § 158 and note pars. 111-122. As to ownership of, and title to, community property, see Kerr's Cyc. C. C. § 172 and note pars. 5-24. As to procedure, generally, in an action for partition, see 15 Encyc. P. 769. As to what constitutes joint tenancy and tenancy in com- mon, see, respectively, Kerr's Cyc. C. C. §§ 683, 685 and notes. 83 § 162 CIVIL CODE. [Div.I,Pt.III. § 162. SEPARATE PKOPERTY OF THE WIFE. All prop- erty of the wife, [1] owned by her before marriage, and that [2] acquired afterwards by gift, bequest, devise, or descent, with [3] the rents, issues, and profits thereof, is her separate property. The wife may, without the consent of her hus- band, convey her separate property. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 149 pars, annotation. 49 C. 189, 192 (referred to); 53 C. 456, 459 (referred to); 54 C. 178 (applying § 167 of original code, forbidding a wife to make a contract to pay money); 55 C. 52, 56, 58 (construed and applied); 70 C. 282, 284, 11 P. 719 (applied); 70 C. 424, 426, 427, 12 P. 392, 393 (construed with reference to §169); 80 C. 65, 67, 22 P. 69 (referred to and held inapplicable); 87 C. 464, 468, 25 P. 681, 11 L. 252 (referred to); 94 C. 425, 429, 29 P. 954 (referred to); 95 C. 343, 352, 28 P. 265 (applied); 105 C. 680, 691, 39 P. 56 (referred to); 106 C. 608, 612 39 P. 939 (referred to); 109 C. 53, 59, 41 P. 819 (construed and applied); 110 C. 423, 425, 42 P. 908 (applied); 132 C. 320, 323, 64 P. 410 (applied); 134 C. 603, 604, 606. 65 P. 321 (applied); 143 C. 292, 295, 76 P. 1108 (cited); 147 C. 514, 515, 522, 82 P. 39, 40 (cited in dis. op. and applied in department opinion, affirmed by court in bank); 5 C. A. 690, 692, 91 P. 173 (construed with §§163, 164): 111 F. 134, 135 (cited). As to acknowledgment by married woman, see Kerr's Cyc. C. C. §§ 1093, 1185 and notes. As to acknowledgments by married woman, see Kerr's Cyc. C. C. § 1187 and note. As to conflict of laws concerning wliat constitutes separate or community property, see Kerr's Cyc. C. C. § 164 and note pars. 26-35. As to deed to husband procured by wife, see Kerr's Cyc. C. C. § 164 and note pars. 146, 147. As to effect of commingling funds generally, see Kerr's Cyc. C. C. § 164 and note pars. 181-191. As to effect of gift by wife to husband, see Kerr's Cyc. C. C. § 164 and note par. 158. As to effect of wife's deed, see Kerr's Cyc. C. C. § 1187 and note. As to evidence to overcome presumption that property is community property, see Kerr's Cyc. C. C. § 164 and note pars. 84-107. As to insurance policy assigned to wife by stranger, see Kerr's Cyc. C. C. § 164 and note par. 12. 84 Tit.I.ch.III.] PROPERTY OF HUSRANM). §163 As to necessity for delivery upon gift or sale by husband to wife, see Kerr's Cyc. C. C. § 158 and note pars. 36-40. As to property purchased with separate funds, see Kerr's Cyc. C. C. § 164 and note pars. 206, 208-211. As to reformation of unacknowledged deeds, see Kerr's Cyc. C. C. §§ 1202-1204 and note. As to remedies by and against wife on contracts, see Kerr's Cyc. C. C. § 158 and note pars. 41-43, 54-56, 86-106. As to rights of action growing out of contracts lietween husband and wife, see Kerrs Cyc. C. C. § 158 and note jjars. 42, 43, 54-56, 60-66. As to specific performance of unacknowledged deeds and contracts, see Kerr's Cyc. C. C. §§ 1093, 1187 and notes. As to validity of wife's deed where statute is not complied with, see Kerr's Cyc. C. C. S 162, note pars. 43-53, 65, 66-68. 70. 75, 76. As to wife as party plaintiff in action agaijist her husband, see Kerr's Cyc. C. C. § 370 subd. 2 and note. Conflict of laws as to what constitutes separate or com- munity property. — See Kerr's Cyc. C. C. §164 and note pars. 26-35. Improvements on separate property of wife. — See Kerr's Cyc. C. C. §164 and note pars. 192-195. § 1«3. SKTAIJATK rHOTKHTY OF TIIK HISBWD. All property [1] owned by the luusband before marriage, and that [2] acquired afterwards by gift, bequest, devise, or descent, with [3] the rents, issues, and profits thereof, is Iiis separate proijertj. lllNlory: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 45 pars, annotation. 70 C. 282, 284, 11 P. 719, 720 (referred to); 79 C. 304, 310, 21 P. 759 (referred to); 87 C. 464, 468, 25 P. 681. 682. 11 L. 252 (referred to); 94 C. 425, 429, 29 P. 954 (referred to): 106 C. 608, 612. 3^ P. 939 (referred to); 109 C.- 53. 59, 41 P. 819 (referred to); 132 C. 320, 323, 64 P. 410 (referred to); 134 C. 603, 604. 65 P. 321. 66 P. 860 (referred to); 142 C. 1, 5. 6. 75 P. 324 (cited): 147 C. 514, 515. 82 P. 39, 41 (Vbere married women have convejed, or shall hereafter convey, real property which they acquired prior to May nine- teenth, eighteen hundred and eighty-nine, the husbands, or their heirs or assigns, of such married women, shall be barred from commencing or maintaining any action to show that said real property was community property, or to recover said real property,, as follows: [1] As to conveyances heretofore made, from and after one year from the date of the taking effect of this act; and [2] as to conveyances hereafter made, from and after one year from the filing for record in the recorder's office of such conveyances, respectively. Hi.«*torr: Enacted March 21, 1872; amended March 19, 1889, Stats, and Amdts. 1889, p. 328; March 3. 1893, Stats, and Amdts. 1893, p. 71; March 4, 1897, Stats, and Amdts. 1897, p. 63; by Code Commissioners, Act March 16, 1900-1, p. 193; held unconstitu- tional, see history, § 4 ante. See Kerr's Cyc. C. C. for 215 pars, annotation. 70 C. 282, 284, 11 P. 719, 720 (referred to); 70 C. 424, 426. 12 P. 392, 393 (construed and applied); 80 C. 46, 48, 13 A. S. 96, 22 P. 67 (applied); 83 C. 521, 529, 23 P. 695 (construed); 87 C. 464, 468, 25 P. 681. 11 L. 252 (construed and applied); 94 C. 425, 429, 29 P. 954 (construed and applied); 98 C. 264, 267, 33 P. 95 (applied); 101 C. 563, 565, 36 P. 103 (construed and applied); 105 C. 680, 691, 39 P. 56 (construed and applied); 106 C. 355, 361, 39 P. 793 (construed and applied); 106 C. 608. 612. 39 P. 939 (cited); 109 C. 53. 59. 60. 41 P. 819 (construed and applied); (C. Jan. 31, 1896). 43 P. 599, 601, 602 (construed); 122 C. 358, 360, 361, 55 P. 132 - property for debts. — See 19 Encyc. L. 233. Marriage settlements as affecting community property. — See 26 Cent. Dig. col. 2597, §§ 881-885. Nature and existence of community property, laws govern- ing, etc. — See 26 Cent. Dig. col. 2591, §§878-880; 6 Encyc. L. 296. Ordinary commercial partnership between the spouses. — See 6 Encyc. L. 349. Parties in actions against community jiroperty. — See 10 Encyc. P. 254. Partition of homestead in community property. — See 4 L. N. S. 797. Pensions paid by the government, not community property. — See 26 Cent. Dig. col. 2610, § 891. 89 § 164 CIVIL CODE. [Div.I.Pt.III. Presumption that debt is common debt. — See 19 L. 235. Presumptions in relation to community property. — See 6 Encyc. L. 325; 2j6 Cent. Dig. col. 2640. Proceeds of insurance as community property. — See 26 Cent. Dig. col. 2609, § 890. Property acquired by spouse through devised bequest or in- heritance, not community property. — See 26 Cent. Dig. col. 2610, § 893, 2612, § 894. Property acquired during- marriage. — See 26 Cent. Dig. col. 2607, §§ 889-892. Property held at time of marriage. — See 26 Cent. Dig. col. 2606, § 888. Property purchased — Separate and community funds. — See 26 Cent. Dig. col. 2619, §§ 897-903. Property which is community property. — See 86 A. D. 628; 6 Encyc. L. 307-325; 26 Cent. Dig. col. 2604, §§886-916. Public lands acquired by grant or entry, as to whether com- munity property. — See 26 Cent. Dig. col. 2613, § 895. Purchase on credit, as asset of community. — See 6 Encyc. L. 312. Registry laws, as affecting community property. — See 6 Encyc. L. 348. Rents, profits, products, improvements and proceeds of sa*le of separate property. — See 6 Encyc. L. 320; 26 Cent. Dig. col. 2634, §§ 904-910. Right of husband to become creditor of the community. — See 19 L. 235. Right of wife to hold separate property. — See 26 Cent. Dig. col. 2605, § 887. Rights and liabilities of survivor of spouses and heirs. — See 26 Cent. Dig. col. 2768, §§ 1008-1031. Rights and powers of the surviving spouse. — See 6 Encyc. L. 341-345. Same — Rule in California. — See 6 Encyc. L. 345. Rights and remedies of creditors during the community. — See 6 Encyc. L. 338. Rights of heirs in community property. — See 6 L. 347. Rights of spouses during existence of the community. — See 26 Cent. Dig. col. 2651, §§ 917-924. Sales, conveyances and incumbrances — Community and sepa- rate property.— See 26 Cent. Dig. col. 2673, §§ 929-952. Separate estate of members of the community. — See 6 Encyc. L. 300-304. Specific performance, in relation to community property. — See 6 Encyc. L. 349. Taxation of community property. — See Kerr's Cyc. C. C. § 172 and note par. 10. 90 1 Tit.I,ch.III.] INVENTORY— NOTICE. §§165,166 Testamentary capacity of liusband as to community property. —See Kerr's Cyc. C. C. § 172 and note. Wliat is, and whether presumptions tliat property is com- munity property may be rebutted. — See 86 A. D. 628. Widow's election between right to community property and benefits of a will. — See 92 A. S. 695. Wife having separate interest should be joined in suit con- cerning community property. — See 10 Encyc. P. 254. Wife may sue concerning community property where aban- doned by husband. — See 10 Encyc. P. 222. Wife's funds disposed with or collected by husband, not com- munity property. — See 26 Cent. Dig. col. 2610, § 892. § 165. INVENTORY OF SEPARATE PROPERTY OF WIFE. A full and complete inventory of the separate personal prop- erty of the wife may be made out and signed by her, acknowl- edged or proved in the manner required by law for the acknowledgment or proof of a grant of real property by an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. 67 C. 458, 459, 8 P. 12 (construed and applied); 81 C. 93, 95, .96, 15 A. S. 34, 22 P. 331, 5 L. 579 (construed); 83 C. 274, 278, 23 P. 348 (construed and applied); 102 C. 547, 551, 552, 41 A. S. 200, ^6 P. 857 (construed); 124 C. 200, 202, 203, 204, 71 A. S. 42, 56 P. 880 (cited). As to admissibility of parol evidence to identify properly, see Kerr's Cyc. C. C. § 166 note par. 5. As to community property, generally, see note § 164, ante. As to constitutional origin of wife's separate property, see Kerr's Cyc. C. C. § 162 and note pars. 6-10. As to effect of recording inventory, see Kerr's Cyc. C. C. § 166 and note par. 2. § 166. FILING INVENTORY NOTICE OF WIFE'S TITLE, ETC. The filing of the inventory in the recorder's office is notice and prima facie evidence of the title of the wife. Hi.story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 193. See Kerr's Cyc. C. C. for 6 pars, annotation. 67 C. 458, 459, 8 P. 12 (referred to); 81 C. 93, 95, 96, 15 A. S. 91 §§167,168 CIVIL CODE. [Div.I,Pt.III. 34, 22 P. 331, 5 L. 579 (cited with §166); 83 C. 274, 278, 23 P. 348 (cited); 124 C. 200, 202, 71 A. S. 42, 56 P. 880 (referred to). As to community property generally, see note § 164, ante. As to requisites and svifficiency of delivery and change of possession, see Kerr's Cyc. C. C. §158 and note pars. 36-40; § 3440 and note. § 167. COMMLMTl PROPERTY, COXTRACTS BY WIFE. 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. Hi-story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 193. See Kerr's Cyc. C. C. for 14 pars, annotation. 53 C. 456, 459 (orig-inally, a wife could not contract for the payment of money); 54 C. 178, 179 (before this section was amended, a wife could not make a contract in reference to money); 54 C. 620, 623 (referred to); 58 C. 115, 119 (cited); 62 C. 623, 639 (chang-e of section referred to); 96 C. 609, 611, 31 P. 618 (construed and applied); 112 C. 387, 398, 44 P. 734 (con- strued); 116 C. 339, 342, 58 A. S. 170, 48 P. 228, 36 L. 497 (re- ferred to); 111 F. 134, 135 (cited). As to capacity of married woinen to luake contracts, see Kerr's Cyc. C. C. § 158 and note. As to community property generally, see note § 164, ante. Debts — What are. — See Kerr's Cyc. C. C. § 168 and note par. 2. For cases applying, construing, and referring to section 167 of the original code, forbidding married women from making contracts, which was repealed by Act March 30, 1874, § 38, see 53 C. 456, 459 (referred to); 54 C. 178, 179 (construed and applied); 62 C. 623, 639 (applied). Payment of community debts after death of spouse out of community property. — See Kerr's Cyc. C. C. P. § 1643 and note. § 16S. EARMXGS OF WIFE NOT LIABLE FOR DEBTS OF HUSBAXD. The earnings of the wife are not liable for the debts of the husband. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 53 C. 456, 459 (referred to); 63 C. 390, 391 (applied); 70 C. 424, 426, 12 P. 392, 393 (referred to); 116 C. 339, 342, 58 A. S. 170, 48 P. 228, 36 L. 497 (referred to); 121 C. 16, 25, 53 P. 416 (referred to in construing "debt"). 92 1 lb Tit.I.ch.TII.] EARNINGS OF WIFE. §§169,170 As to community property generally, see note § 164, anti-. As to earnings of wife being separate or community i)rop- erty, see Kerr's Cyc. C. C. § 1G4, pars. 162-164. As to sole traders, see Kerr's Cyc. C. C. P. SS 1811-1821 and notes. §!()}). EAHMXilS i)V ^VIFE, >VHE> LIVING SEPAK.VTE, SEl'AUATE rUOFEUTV. The [1] earnings and accunuila- tions of the wife and [2] of her minor children living with her or in" her custody, while she is living separate frnni hpr husband, are the separate property of the wife. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 53 C. 456, 459 (referred to); 70 C. 424, 426, 12 P. 392, 393 (re- ferred to in construing S 164); 71 C. 418, 426, 12 P. 347, 349 (re- ferred to); 79 C. 200, 202, 21 P. 651, 652 (construed and applied); 87 C. 464, 468, 25 P. 681, 682, 11 L. 252 (referred to with other sections); 94 C. 425, 429, 29 P. 954 (referred to with other sec- tions); 116 C. 339, 342, 58 A. S. 170, 48 P. 228, 36 L. 497 (re- ferred to). As to character of wife's earnings wiiile living with hus- band, see Kerr's Cyc. C. C. §164 pars. 162-164, also ante §164, note. As to community prupi'rty generally, see note § 164, ante. §170. IJAHILITV FOR OEKTS (»K WIFE ( ONTH A( TED BEFORE .)IAKK1A(«E. The separate property of the husband is not liable for the debts of the wife contracted before the marriage. HiNtory: lOiiaeted March 21, 1872: amended by Code Commis- sioners, Act MarcJi 16, 1901. Stats, and Aindls. 1900-1. p. 193: held unconstitutional, see liistory, § 4 ante. See Kerr's Cyc. C. C. for pars, annotation. 53 C. 456, 460 (referred to); 70 C. 282, 285. 11 P. 719, 720, 721 (erroneously cited for §171): 71 C. 418. 422, 12 P. 347. 34S (erroneously cited for §172): 121 C. 16. 25, 53 P. 416 (referred to with other sections): 137 C. 273. 276. 92 A. S. 160 (erroneously reciting provision of 8 170). 70 P. 21. 22. 58 L. 941 (erroneously stating provision of § 167 cited for § 170). "Debts" — Wli.it ;ir.-. — Se.. K.Tr's (-xc < '. «". §1''^ .in.l n.'t.- par. 2. 93 §§ 171, 172 CIVIL CODE. [Div.I.Pt.III. § 171. WIFE'S PROPERTY NOT LIABLE FOR DEBTS OF THE HUSBAND, BUT LIABLE FOR HER OWIV DEBTS. The separate property of the wife is liable for her own debts con- tracted before or after her marriage, but is not liable for heu husband's debts; provided, that such property is liable for the payment of debts contracted by the husband or wife for the necessaries of life furnished to them or either of them while they are living together. Provided, that the provisions of this act shall not apply to the separate property of the wife held by her at the time of her marriage or acquired by her by devise or succession after marriage. History: Enacted March 21, 1872; amended March 18, 1905, Stats, and Amdts. 1905, p. 206. See Kerr's Cyc. C. C. for 18 pars, annotation. 53 C. 456, 460, 461 (applied); 54 C. 178 (construed and held in- applicable); 121 C. 16, 25, 53 P. 416 (referred to and "debts" construed); 3 C. A. 651, 656, 86 P. 978, 979 (cited, wife's sepa- rate property is not subject to attachment for husband's debts); 111 F. 134, 135 (cited). As to duty of depositary to give notice of adverse proceed- ings, see 'Kerr's Cyc. C. C. §§ 1822, 1825 and notes. As to liability of wife's separate property in equity under Act 1850, see Kerr's Cyc. C. C. § 158 and note. As to liability when wife's separate property is put into business of husband and wife, see Kerr's Cyc. C. C. § 158 and note. As to rents, issues, profits, etc., of separate property, see Kerr's Cyc. C. C. § 162 and note par. 9. "Debts" — What are. — See Kerr's Cyc. C. C. § 168 and note par. 2. § 172. MANAGEMENT, CONTROL, AND DISPOSITION OF COMMUNITY PROPERTY. The husband has the manage- ment and control of the community property, with the like absolute power of disposition, other than testamentary, as he has of his separate estate; provided, however, that he cannot make a gift of such community property, or convey the same without a -valuable consideration, unless the wife, in writing, consent thereto; and provided also, that no sale, conveyance or encumbrance of the furniture, furnishings and fittings of 94 1 1 Tit.T,ch.III.] MANAGEMENT, ETC. § 172 the home, or of the clothing and wearing apparel of the wife or minor children, which is community property shall be made without the written consent of the wife. History: Enacted March 21, 1872; amended March 31, 1891, Stats, and Amdts. 1891, p. 425; March 23, 1901, Stats, and Amdts. 1900-1, p. 598. See Kerr's Cyc. C. C. for 85 pars, annotation. 58 C. 115, 119, 120 (construed and applied); 70 C. 282, 285, 11 P. 119, 720, 721 (erroneously cited for § 171); 70 C. 242, 245, 11 P. 648 (construed and applied); 71 C. 418, 422, 12 P. 347, 348 (erroneously cited as §170); 81 C. 240, 242, 22 P. 655 (construed and applied); 85 C. 280, 283, 24 P. 743, 744 (applied); 25 P. 415, 416, 417 (construed and applied); 87 C. 464, 468, 25 P. 681, 11 L. 252 (referred to in discussion); 112 C. 387, 397, 44 P. 734 (construed and applied): 116 C. 339, 340, 342, 344, 345, 350, 58 A. S. 170, 48 P. 228, 36 L. 497 (construed and applied): 135 C. 121, 125, 67 P. 20 (referred to in discussion); 137 C. 354, 356 (erroneously cited for §14), 70 P. 459 (correct citation): 139 C. 559, 563, 73 P. 433 (construed); 142 C. 519, 522, 77 P. 1106 (construed); 145 C. 596, 599, 79 P. 272, 273 (purpose of section stated); 3 C. A. 651. 655, 86 P. 978 (applied); 6 C. A. 404, 405, 92 P. 310 (effect of amendment to section). As to community property generally, see note § 164, ante. As to community property given to wife becoming her sepa- rate property, see Kerr's Cyc. C. C. § 164 and note par. 156. As to competency of wife as witness in an action by husband to recover for her services, see Kerr's Cyc. C. C. P. § 1880 and note. As to disposition of community property upon divorce, see Kerr's Cyc. C. C. §§146-148 and notes. As to division of community property by contract of sepa- ration, see Kerr's Cyc. C. C. § 159 and note. As to nature of wife's interest, see Kerr's Cyc. C. C. § 172. notes- 13-24. As to presentation of claims against decedent, see Kerr's Cyc. C. C. P. §§ 1490 et seq. and notes. As to presumption that land conveyed to spouse during coverture is community property, see Kerr's Cyc. C. C. § 164 pars. 46-66. As to proper party plaintiff in action involving commiinitj- property, see Kerr's Cyc. C. C. P. § 370 and note. As to wife's earnings being community property, see Kerr's Cyc. C. C. § 164 and note pars. 162-164. Contract between husband and wife concerning. — See Kerr's Cyc. C. C. §159 and note pars. 15-22. 95 §§ 173-175 CIVIL CODE. [Div.I.Pt.III. Descent and distribution of community property. — See Kerr's Cyc. C. C. §§ 1401, 1402 and notes. Divorce — Disposition of community property upon. — See Kerr's Cyc. C. C. §§ 146-148 and notes. Sole trader — Wife as, may invest community property in business. — See Kerr's Cyc. C. C. P. § 1814 and note. Wife has not management and control. — See Kerr's Cyc. C. C. § 172, note pars. 25-38. § 173. I'OIRTEST A>D DO AVER NOT ALLOWED. No estate is allowed the husband as tenant by courtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. Hi-story: Enacted March 21, 1872. The Act of April 17, 1850, § 10 (Stats. 1850, ch. 103, p. 254), contained the same provision. — See 6 C. 252, 756, 63 A. D. 125; 1 C. 488, 513. See Kerr's Cyc. C. C. for 5 pars, annotation. 74 C. 98, 103, 15 P. 445, 447 (referred to). As to cominunity property generally, see note § 164, ante. § 174. SUPPORT OF WIFE. If the husband neglect to make adequate 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 193. See Kerr's Cyc. C. C. for 15 pars, annotation. 69 C. 521, 522, 523, 11 P. 29, 30 (construed and applied); 100 C. 345, 346, 34 P. 825 (construed and applied); 129 C. 17, 20, 61 P. 476 (construed and applied); 129 C. 20, 23, 61 P. 477 (con- strued and applied); 2 C. A. 120, 121, 122, 83 P. 85 (necessaries furnished to wife); 2 C. A. 684, 686, 84 P. 260, 261 (goods not necessaries when). As to community property generally, see note § 164, ante. As to estoppel by judgment, see Kerr's Cyc. C. C. P. §§ 1908- 1915 and notes. As to agency of wife to purchase necessaries, see Kerr's Cyc. C. C. § 158 and note pars. 91-93. § 175. SAME— AVHEX SEPARATE FROM HUSBAND. A husband abandoned by his wife is not liable for her support 96 Tit.I,ch.III.] INTER-IilGHTS OF SPOUSES. §§ 176-178 until she offers to return, unless she was justified, by his mis- conduct, in abandoning him; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement. Histor}-: Enacted March 21, 1S72; amended March 30, 1S74, Code Amdts. 1873-4, p. 193. See Kerr's Cyc. C. C. for 4 pars, annotation. 54 C. 396, 397 (construed and applied); 2 C. A. 509, 512, S3 P. 257, 258 (construed with other sections); 2 C. A. 684, 686, 84 P. 260 (necessaries, what are not). As to community property generally, see note § 164, ante. § 176. WIFE TO SUPPORT HUSBAND, >VHE\. The wife must support the husband, when he has not deserted her, out of her separate propertj', when he has no separate prop- erty, and there is no community property, and he is unable, from infirmity, to support himself. Hifitury: Enacted March 21, 1872; amended Marcli 30, 1874, Code Amdts. 1873-4, p. 194. See Kerr's Cyc. C. C. for 5 pars, annotation. 117 C. 633, 634, 635, 636. 49 P. 836, 38 L. 175 (construed and applied); 51 P. 859; 150 C. 667. 671, 89 P. 1083, 1084 (construed with § 206, as to equitable action). As to community property, etc., generally, see note § 164, ante. As to obligation of husband to support wife, see Kerr's Cyc. C. C. § 155 and note. S 177. KKJHTS iiV IIISHAM) AND WIFE «OVEK>KD KY \\ HAT. The property rights of husband and wife are gov- oriuMl hy this chai)ter, unless there is a marriage settlement rf)ntaiiiing stipulations contrary thereto. HiMtory: Enacted March 21. 1872. ST CJ. (;43, 647, 25 V. 922. 923 (referred to in discu.-.-.u^ . ...u^,.; of "marriage contracts" to "marriage settlements"). S I7S. MAKHIAGE SETTLE.MENT CONTK.CCTS. MOW EXKCIITED. All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like Kerr's C. C— 4 97 §§ 179-181 CIVIL CODE. [Div.I.Pt.III. manner as a grant of land is required to be executed and acknowledged or proved. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 39 pars, annotation. 75 C. 298, 300, 17 P. 213 (referred to); 87 C. 643, 647, 25 P. 922 (referred to). As to community property, etc., see note § 164, ante. As to gifts from husband to wife, see Kerr's Cyc. C. C. § 163 and note; and § 172 note par. 21. As to intervention generally, see Kerr's Cyc. C. C. P. §§ 386, 387 and notes. As to reasonableness of marriage settlements, see Kerr's Cyc. C. C. § 178, note pars. 16-19 this note. As to revocation of will by subsequent marriage unless mar- riage contract is made, see Kerr's Cyc. C. C. § 1299 and note. § 179. TO BE ACKNOWLEDGED AND RECORDED. When such contract is acknowledged or proved, it must be recorded in the office of the recorder of every county in which any real estate may be situated which is granted or affected by such contract. History: Enacted March 21, 1872. 87 C. 643, 647, 25 P. 922, 923 (referred to in discussing change of "marriage contracts" to "marriage settlements"). § 180. EFFECT OF RECORDING. The recording or non- recording of such contract has a like effect as the recording or non-recording of a grant of real property. History: Enacted March 21, 1872. 87 C. 643, 647, 25 P. 922, 923 (referred to in discussing change of "marriage contracts" to "marriage settlements"). § 181. MINORS MAT MAKE MARRIAGE SETTLEMENTS. A minor capable of contracting marriage may make a valid marriage settlement. History: Enacted March 21, 1872. 87 C. 643, 647, 25 P. 922, 923 (referred to in discussing change of "marriage contracts" to "marriage settlements"). 98 Tit.II.Ch.I.] CHILDREN BY BIRTH. §193 TITLE II. PARENT AND CHILD. Chapter I. Children by Birth, §§ 193-215. IL By Adoption, §§ 221-230. CHAPTER I. CHILDREN BY BIRTH. § 193. Legitimacy of cliildren born in wedlock. § 194. Cliildren after dissolution of marriage. § 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. § 199. When husband or wife may bring action for the exclu- sive control of children — Decree in such cases. § 200. Custody of an illegitimate child. § 201. Allowance to parent. § 202. Parent cannot control the property of child. § 203. Remedy for parental abuse. § 204. 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 maintaining 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. S 209. Husband not bound for the support of his wife's children by a former marriage. § 210. Compensation and support of adult cliild. § 211. Parent may relituiuish services and custody of cliild. § 212. Wages of minors. S 213. Right of parent to determine the residence of cliild. § 214. Wife in certain cases may obtain custody of minor chil- dren. § 215. When child becomes legitimate. 99 § 193 CIVIL. CODE. [Div.I.Pt.III. § 193. LEGITIMACY OF CHILDREN BOKX IN WEDLOCK. All children born in wedlock are presumed to be legitimate. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 26, 1901, Stats, and Amdts. 1900-1, p. 339, held unconstitutional; see history, § 4 ante. See Kerr's Cyc. C. C. for 2 pars, annotation. 75 e. 379, 381, 17 P. 434 (applied); 137 C. 298, 300, 70 P. 91, 92 A. S. 175 (referred to); 145 C. 713, 715, 79 P. 425, 426 (referred to in connection with other sections). Acknowledgment by father — ^Legitimizing- effect, — as to, see Kerr's Cyc. C. C. § 230 and note; also § 1387 and note. Adultery — Legitimacy of children, — as to, see Kerr's Cyc. C. C. §§ 144, 145 and notes. Born in wedlock, legitimacy of. — See 2 Chiirch's New Probate Law and Practice, 1799. "Children," as a word of purchase or of limitation. — See 5 Encyc. L. 1092, 1093; 30 Encyc. L. 754; 2 L. 457; 12 L. N. S. 283. Descent on death of unmarried minors. — See 1 Church's New Probate Law and Practice, 48. Illegitimate child — Acknowledgment by the father — As to effect of, see Kerr's Cyc. C. C. §§ 230, 1387 and notes. Same=— Custody of, mother entitled to. — See Kerr's Cyc. C. C. § 200 and note. Same — Earnings of — As to, see Kerr's Cyc. C. C. § 200 and note. Same— Heir of— As to, see Kerr's Cyc. C. C. §§ 1387, 1388 and notes. Marriage of parents — Effect on legitimacy of illegitimate children — As to, see Kerr's Cyc. C. C. § 215 and note. Nullified marriage — Effect on legitimacy of children, born or conceived during status — As to, see Kerr's Cyc. C. C. § 84 and note. Posthumous children. — See 2 Church's New Probate Law and Practice, 1800. Presumption as to legitimacy of children. — See 1 Church's New Probate Law and Practice, 56; 56 A. D. 210-223; 72 A. D. 649-654. Same — R&butting — As to, see Kerr's Cyc. C. C. §§ 194, 195 and notes. Right of inheritance of. — See 1 Church's New Probate Law and Practice, 46-48. Stepchildren.— See 5 Ency. L. 1098, 1099. Succession by children to community property. — See 2 Church's New Probate Law and Practice, 1735; see note § 164 ante. ' 100 II Tit.II,ch.I.] DISPUTING LEGITIMACY. §§ 194, 195 § 194. CHILDREN AFTER DISSOLUTION OF MARRIAGE. All children of a woman who has been married, born witliin ten moutlis after the dissolution of the marriage, are pre- sumed to be tegitimate children of that marriage. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 194. See Kerr's Cyc. C. C. for 4 pars, annotation. 75 C. 379, 381, 17 P. 434 (cited with other sections); 137 C. 129, 133, 134, 69 P. 900 (construed and applied). Born after dissolution of marriage. — See 2 Church's New Pro- bate Law and Practice, 1800. Children of annulled marriage. — See 2 Church's New Probate Law and Practice, 1801. . Custody and maintenance of children on divorce. — See 7 Encyc. P. 84, 129. Maintenance of children on divorce. — See 7 Ency. P. 84, 129. Same — Amount allowed for. — See 7 Encyc. P. 131. Same — Appeals from orders as to. — See 7 Encyc. P. 136. Same- — Decrees containing no provision for. — See 7 Encyc. P. 131. Same — During suit for divorce. — See 7 Encyc. P. 130. Same — Order for maintenance. — See 7 Encyc. P. 130, 131. Same — Party about to leave state. — See 7 Encyc. P. 130. Same — Selection of custodian. — See 7 Encyc. P. 130. Same — Where divorce is refused. — See 7 Encyc. P. 130. §195. WHO MAY DISPUTE THE LEGITIMACY OF A CHILD. The presumption of legitimacy can be disputed only by the [1] husband or [2] wife, or the [3] descendant of one or both of them. Illegitimacy, in such case, may be proved like any other fact. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 75 C. 379, 381, 17 P. 434 (cited with other sections); 137 C. 298, 303, 92 A. S. 175, 70 P. 91 (applied). As to method of proof of illegitimacy and sufficiency of evi- dence, — see notes 60 A. D. 687; 72 A. D. 649. Birth in lawful wedlock, legitimacy presumed. — See 1 Church's New Probate Law and Practice, 56; 56 A. D. 210-223; 72 A. D. 649-654; also note § 193, ante. Who may dispute legitimacy of child. — See 2 Church's New Probate Law and Practice, 1800. 101 §§ 196, 197 CIVIL CODE. [Div.I.Pt.III. §196. OBLIGATION OF PARENTS FOR THE SUPPORT AND EDUCATION OF THEIR CHILDREN. The parent enti- tled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to givt' are iandequate, the mother must assist him to the extent of her ability. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 71 C. 495, 497, 12 P. 508, 509 (applied); 95 C. 374, 377, 378, 30 P. 561 (applied); 109 C. 643, 648, 42 P. 428 (construed and applied); 130 C. 380, 382 (construed and applied); 62 P. 613; 134 C. 114, 116, 66 P. 18*7 (applied); 145 C. 713, 716, 79 P. 425 (construed with other sections); 4 C. A. 264, 267, 87 P. 561, 562 (when parent is no longer liable for support). Care and custody of child — Right of parent to. — See Kerr's Cyc. C. C. § 197 note pars. 2-5. Children entitled to family allowance. — See 1 Church's New Probate Law and Practice, 574. Desertion of child by parent — Felony. — See Kerr's Cyc. Pen. C. § 271 and note. Disposing of child for mendicity — Misdemeanor. — See Kerr's Cyc. Pen. C. § 272 and note. Injury to child — Action for. — See Kerr's Cyc. C. C. P. § 376 and note. Necessaries for children — Supplied by third person,- — as to, see Kerr's Cyc. C. C. §§ 207, 208 and notes. Paternal authority — Abuse of, — as to control by court, see Kerr's Cyc. C. C. § 203 and note. Poor relative — Duty to support.- — See Kerr's Cyc. C. C. § 206 and note. § 197. CUSTODY OF LEGITIMATE CHILD. 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 written consent, unless she has deserted him, or is living separate from him by agreement. If the father [1] be dead, or [2] be unable, or [3] refuse to take the custody, or [4] has abandoned his family, the mother is entitled thereto. 102 Tit.II.ch.I.] PARENTS SEPARATED. § igg History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 194. See Kerr's Cyc. C. C. for 16 pars, annotation. 95 C. 3.74, 377, 378, 30 P. 561 (cited with other sections); 130 C. 380, 382, 62 P. 613 (construed and applied); 134 C. 114, 116, 66 P. 187 (cited in discussion); 137 C. 273, 276, 92 A. S. 160, 70 P. 21, 58 L. 941 (applied); 142 C. 423, 426, 76 P. 37 (applied); 3 C. A. 286, 290, 85 P. 130 (cited). Appointment of general guardian for. — See 1 Church's New Probate Law and Practice, 78. Emancipation — Relinquishment of earnings — As to, see Kerr's Cyc. C. C. § 211 and note. Commitment of infants. — See 1 Church's New Probate Law and Practice, 88. Custody of — Awarding. — See 1 Churcli's New Probate Law and Practice, 78. Same — Habeas corpus for. — See 1 Church's New Probate Law and Practice, 92-98. Guardian for minor — Appointment of — As to, see Kerr's Cyc. C. C. § 421 and note. Minors and their custody, guardian, commitment, and habeas corpus. — See 1 Church's New Probate Law and Practice, 85-98. Property of child — Parent's control over — As to, see Kerr's Cyc. C. C. § 202 and note. Petition for writ of habeas corpus for detention of child. — See 1 Cliurch's New Probate Law and Practice, 79. Relinquishment of riglit to earnings — As to, see Kerr's Cyc. C. C. § 214 and note. §198. IIISBAXD AM) WIFE LIVING SEPARATE, NEITHER TO HAVE SUPERIOR RIGHT TO CUSTODY OF CHILDREN. The husband and father, as such, has no right superior to those of the wife and mother, in regard to the care, custody, education, and control of the children of tlie marriage, while such huHl)and and wife live separate and apart from each other. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 137 C. 273, 276, 92 A. S. 160, 70 P. 21, 58 L. 941 (applied); 142 C. 423, 426, 76 P. 37 (applied). As to custody of child in divorce, see Kerr's Cyc. C. C. § 138 and note. 103 §§ 199-201 CIVIL CODE. [Div.I.Pt.III. § 199. WHEN HUSBAND OR WIFE MAT BRING ACTION FOR THE EXCLUSIVE CONTROL OF CHILDREN— DECREE IN SUCH CASES. 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, [1] during the pendency of such action, or [2] at the final hearing thereof, or [3] afterwards, make such order or decree in regard to the support, care, custody, education, and con- trol of the children of the marriage, as may be just, and in accordance with the natural rights of the parents and the best interests of the children, and may [4] at any time there- after amend, vary, or modify such order or decree, as the natural rights and the interests of the parties, including the children, may require. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 109 C. 643, 649, 42 P. 428, 429 (referred to). As to when wife is entitled to custody of child, see Kerr's Cyc. C. C. § 214 and note. Awarding custody — Considerations governing court in, — as to, see Kerr's Cyc. C. C. § 200 note par. 4; also §246 and note. Depriving parent of custody pending action — Court has au- thority to. 109 C. 643, 649, 42 P. 428. §200. CUSTODY OF AN ILLEGITIMATE CHILD. The mother of an illegitimate unmarried minor is entitled to its custody, services, and earnings. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. Estate of illegitimate child, dying intestate, goes to mother. — See Kerr's Cyc. C. C. § 1387 and note. Mother's duty to support. — See Kerr's Cyc. C. C. § 196 and note. § 201. ALLOWANCE TO PARENT. The proper court may direct an allowance to be made to the parent of a child, out of its property, for its past or future support and education, 104 II Tit.ir.ch.I.] PARENTAL ABUSE. §§202-204 on such conditions as may be proper, whenever such direc- tion is for its benefit. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. §202. PATIENT CANNOT CONTROL PROPERTY OF CHILD. The parent, as such, has no control over the prop- erty of the child. History: Enacted March 21, 1872. As to appointment of guardian by parent, see Kerr's Cyc. C. C. § 241 and note. Guardian alone can control infant's property. — See Kerr's Cyc. C. C. § 242 and note. §203. REMEDY FOR PARENTAL ABUSE. The abuse of parental authority is the subject of judicial coariiizaiice in a civil action brought [1] by the child, or [2] by its relative within the third degree, or [3] by the supervisors of the county where the child resides; and when the abuse is estab- lished, the child may be freed from the dominion of the parent, and the duty of support and education enforced. History: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 103 C. 355, 356, 357, 37 P. 206 (applied): 109 C. 643, 647, 648. 649 (construed and applied); 650, 651, 653, 654. 656, 657, 659 (cited in dis. op.), 653, 654 (held not applicable irt dls. op.), G55, 660, 661 (construed in dis. op.), 42 P. 428; 124 C. 677, 678, 57 P. 674 (applied); 143 C. 402, 404, 405, 77 P. 156 (construed, applied, and object stated; also what was said of section in 103 C. 355, 356, 37 P. 206, considered not to be law). Desertion of child by parent — Felony. — See Kerr's Cyc. Pen. C. § 271 and note. Failure to supply child witli necessaries — Misdemeanor, where wilful.^ — See Kerr's Cyc. Pen. C. § 270 and note. iil Parental duty — ^As to, see Kerr's Cyc. C. C. § 196 and note. §204. WHEN PARENTAL ATTHORITY CEASES. The authority of a parent ceases: 1. Upon the appointment, by a court, of a guardian of the person of a child; 105 §§ 205, 206 CIVIL CODE. [Div.I,Pt.III. 2. Upon the marriage of the child; or, 3. Upon its attaining majority. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 109 C. 643, 649, 42 P. 428 (referred to); 119 C. 599, 601, 51 P. 962 (applied); 142 C. 423, 426, 76 P. 37; 143 C. 402, 403, 77 P. 156 (cited). §205. REMEDY WHEN A PARENT DIES WITHOUT PROVIDING FOR THE SUPPORT OF HIS CHILD. If a parent chargeable with the support of a child dies, [1] leav- ing it chargeable to the county, and [2] leaving an estate sufficient for its support, the supervisors of the county may claim provision 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 estate, and against the heirs, devisees, and next of kin of the parent. History: Enacted March 21, 1872. 109 C. 643, 649, 42 P. 428 (referred to). Maintenance of minors out of income of his own property. — - See 1 Church's New Probate Law and Practice, 115. Property set apart for support of family, how apportioned between widow and children. — See 1 Church's New Probate Law and Practice, 557. Right and title of children to antemortem homestead. — See 1 Church's New Probate Law and Practice, 608. Right of cliildren in estate less than $1500 in value. — See 1 Church's New Probate Law and Practice, 585. Right of minor child to probate homestead. — See 1 Church's New Probate Law and Practice, 633. When all property other than homestead goes to children. — See 1 Church's New Probate Law and Practice, 563. §206. RECIPROCAL DUTIES OF PARENTS AND CHIL- DREN IN MAINTAINING EACH OTHER. It is the duty of the [1] father, the [2] mother, and the [8] children of any poor person who is unable to maintain himself by work, 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. History: Enacted March 21, 1872. 106 Tit.II,ch.I.] nf:cessaries and support. §§ 207-209 See Kerr's Cyc. C. C. for 3 pars, annotation. 124 C. 48, 54, 55, 71 A. S. 17, 56 P. 630, 631, 57 P. 81 (construed and applied); 149 C. 140, 142, 84 P. 838, 117 A. S. 125, 4 L. N. S. 1159, 9 A. C. 1018 (referred to as a meager provision); 150 C. 667, 669, 670 (inadequacy of section in providing procedure or ma- chinery for enforcing its provisions alluded to) 671, 672, 673, 89 P. 1083 (construed and applied, holding that duty and right established by section may be enforced by an action in equity). To mother — Out of allowance of child's estate — Past sup- port. — See Kerr's Cyc. C. C. § 201 and notes. § 207. ^VHEN A PARE>T IS LIABLE FOR NECESSARIES SUPPLIED TO A CHILD. If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person maj' in good faith supply such necessaries, and recover the reasonable value thereof from the parent. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 109 C. 643, 649. 42 P. 428 (referred to); 145 C. 713, 716, 717, 79 P. 425 (construed with otlier sections). Liability of infant for necessaries furnished, when. — See Kerr's Cyc. C. C. § 36 and note. Same — Furnished for purpose of business. — See Kerr's Cyc. C. C. § 36 note pars. 32, 3C. §208. >VHE\ A PA HEM" LS NOT LIABLE FOR SUPPORT FURMSIIED HIS CHIl-D. A parent is not bound to com- pensate [1] the other parent, or [2] a relative, for the volun- tary supi)ort of his child, without an agreement for com- pensation, nor [3] (d compensate a stranger for the support of a child who has abandoned the parent without just cause. HlNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 jiars. annnt.ition. 125 C. 65, 72, 57 P. 677 (applied). §209. HUSBAND NOT BOT >D FOI{ THE SUPP4HJT OF HIS >VIFi:'S ( HII.DBKN BY A FORMER MAHHUV^K. A husband is not l)OUud to maintain his wife's children by a former husband; but if he receives them into his family and 107 §§ 210-213 CIVIL CODE. [Div.I,Pt.III. 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 services. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 74 C. 320, 321, 322, 16 P. 5, 6 (applied); 125 C. 65, 70, 57 P. 677 (applied). §210. COMPENSATION AND SUPPORT OF ADULT CHILD. Where a child, after attaining majority, continues to serve and to be supported by the parent, neither party is entitled to compensation, in the absence of an agreement therefor. History: Enacted March 21, 1872. §21L PARENT MAY RELINQUISH SERVICES AND CUSTODY OF CHILD. The parent, whether solvent or insol- vent, may relinquish to the child the right of controlling him and receiving his earnings. Abandonment by the parent is presumptive evidence of such relinquishment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 115 C. 143, 151, 44 P. 336, 46 P. 922 (referred to). § 212. WAGES OF MINOR. The wages of a minor employed in service may be paid to him, until the parent or guardian entitled thereto gives the employer notice that he claims such wages. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 194. 3 C. A. 286, 290, 85 P. 130, 132 (applied). § 213. RIGHT OF PARENT TO DETERMINE THE RESI- DENCE OF CHILD. 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 removal which would prejudice the rights or welfare of the child. History: Enacted March 21, 1872. 108 Tit.II,ch.I.] CUSTODY BY WIFE. §§ 214, 215 Residence of children — Fatlier may determine what shall be. — 92 C. 653, 655, 28 P. 787. See also Kerr's Cyc. C. C. §156 and note. §214. WIFE m CERTAIN CASES MAY OBTAIN CUS- TODY OF MINOR CHILDREN. When a husband and wife live in a state of separation, without being divorced, any court of competent jurisdiction, upon application of either, if an inhabitant of this state, may inquire into the custody of any unmarried minor child of the marriage, and may award the custody of such child to either, for such time and under such regulations as the case may require. The decision of the court must be guided by the rules prescribed in section two hundred and forty-six. HLstory: Enacted March 21, 1872. Action for control without prayer for divorce. — See Kerr's Cyc. C. C. § 199 and note. Custody pending divorce proceedings. — See Kerr's Cyc. C. C. §§ 138, 139 and notes. §2ir,. WHEN CHILI) BEC03IES LEGITIMATE. A child born before wedlock becomes legitimate by the subsequent marriage of its parents. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 195. See Kerr's Cyc. C. C. for 4 pars, annotation. 57 C. 484, 491 (construed and applied); 96 C. 532, 563, 570, 572, 31 P. 915, 917, 919, 920, 921, 19 L. 40 (applied). Acknowledgment of child. — See 27 Encyc. L. 350. 109 §§ 221, 222 CIVIL CODE. [Div.I,Pt.III. CHAPTER II. ADOPTION. § 221. Child may be adopted. § 222. Who may adopt. § 223. Consent to adoption [by wife]. § 224. Adoption of cliildren; consent necessary. Orphans and abandoned children. § 225. Consent of child. § 226. Proceedings on adoption. § 227. Judge's order in adoption proceedings. § 228. Effect of adoption. § 229. Effect on former relations of child. § 230. Adoption of illegitimate child. § 221. CHILD MAT BE ADOPTED. Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 75 C. 379, 381, 17 P. 434, 436 (applied); 81 C. 408, 441, 446, 21 P. 976, 979, 980, 22 P. 742, 1028, 6 L. 594 (cited and applied — compared with statutes of 1869-70), 446 (construed); 102 C. 70, 79, 41 A. S. 163, 36 P. 407 (construed). Adoption of children — As to generally, see 1 Cent. Dig. col. 1952, §1-6; 1 Church's New Probate Law and Practice, 21; 10 Encyc. P. 845-850. Same — By deed or agreement. — See 1 Cent. Dig. col. 1956, §§ 11-14; 1 Decen. Dig. p. 402, § 8. Same — By judicial proceedings. — See 1 Cent. Dig. col. 1959, §§15-26. Same — Persons who may be adopted. — See 1 Decen. Dig. p. 399, § 5. Same — Review and revocation of. — See 1 Decen. Dig. p. 1963, ■§§ 27, 28. Agreement to adopt. — See 1 Decen. Dig. p. 400, § 6. § 222. WHO MAY ADOPT. The person adopting the child must be at least ten years older than the person adopted. Hi-story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 195. 110 J h Tit.II.Ch.II.] ADOPTION— CONSENT. §§ 223, 224 See Kerr's Cyc. C. C. for 5 pars, annotation. 81 C. 408, 441, 446, 21 P. 976, 22 P. 742, 1028, 6 L. 594 (cited and applied); 98 C. 531, 537, 33 P. 460, 21 L. 380 (referred to with other sections). Persons who may adopt. — See 1 Decen. Dig. p. 399, § 4. § 223. CONSENT TO ADOPTION [BY WIFE]. 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 consenting, is capable of giving such consent. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 195. 81 C. 408, 441, 446, 21 P. 976, 22 P. 742, 1028, 6 L. 594 (cited and applied); 98 C. 531, 536-537, 33 P. 460, 21 L. 380 (construed); 102 C. 70, 79, 41 A. S. 163, 36 P. 407 (construed). Consent of parties. — See 1 Cent. Dig. col. 1954, §§ 7-10; 1 Decen. Dig. p. 401, § 7. §224. ADOPTION OF CIIILDKEN; CONSENT NECES- SAKY. OKPHANS AND ABANDONED CHILDREN. A legiti- mate child cannot be adopted without the consent of its parents, if living; nor an illegitimate child without the con- sent of its mother, if living; except, that consent is not neces- sary from a father or mother [1] deprived of civil rights, or [2] adjudged guilty of adultery, or [3] cruelty, and for either cause divorced, or [4] adjudged to be habitually intemperate in the use of intoxicants, or [5] who has been judicially deprived of the custody of the child on account of [a] cruelty or [b] neglect. [Abandoned children, consent not necessary.] Neither is consent of any parent necessary in case of any abandoned child; provided, however, that any such child, being a half- orphan, and kept and maintained in any orphan asylum in this state for more than two years, may be adopted, with the consent of the manager of such orphan's home without the consent of the parent unless such parent has paid toward the expenses of maintenance of such half-orphan at least a reasonable sum during the said time, if able to do so. Ill §§ 225, 226 CIVIL CODE. [Div.I.Pt.ITI. [Deserted child.] Any child [1] deserted by both parents or [2] left in the care and custody of another by its parent or parents, [a] without any agreement or provision for its support, [b] for the period of one year, is deemed to be an abandoned child within the meaning of this section and where the parent is a non-resident of this state such child may be adopted with the consent of the managers of such home whenever it has been left in such home for more than one year; or any abandoned child, within the meaning of this section, if left in the care and custody of another person for one year or more, may, with the consent of the district attorney of the county wherein the person applying to adopt such child is a resident, be adopted by such person. History: Enacted March 21, 1872; amended March 2, 1891, Stats, and Amdts. 1891, p. 24; March 9, 1893, Stats, and Amdts. 1893, p. 112; March 9, 1895, Stats, and Amdts. 1895, p. 39; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 339, held unconstitutional; see history, § 4 ante; amended March 10, 1903, Stats, and Amdts. 1903, p. 114; amended March 16, 1907, Stats, and Amdts. 1907, p. 331, Kerr's Stats, aftd Amdts. 1906-7, p. 400. See Kerr's Cyc. C. C. for 3 pars, annotation. 57 C. 484, 491 (construed); 81 C. 408, 441, 446, 21 P. 976, 22 P. 742, 1028, 6 L. 594 (cited and applied); 98 C. 531, 536-537, 33 P. 460, 21 L. 380 (referred to with other sections); 102 C. 70, 8l, 41 A. S. 163, 36 P. 407 (construed); 106 C. 377 (applied), 379 (referred to with §381), 39 P. 779. §225. CONSENT OF CHILD. The consent of a child, if over the age of twelve years, is necessary to its adoption. History: Enacted March 21, 1872. 81 C. 408, 441, 446, 21 P. 976, 22 P. 742, 1028, 6 L. 594 (cited and applied); 98 C. 531, 537, 33 P. 460, 21 L. 380 (referred to witli other sections). § 226. PROCEEDINGS ON ADOPTION. Any person desir- ing to adopt a child may, for that purpose, petition the supe- rior court of the county in which the petitioner resides. The [1] person adopting a child, and [2] the child adopted, and [3] the other persons, if within or residents of said county, 112 Illf Tit.TT.ch.TT.] PROCEEDINGS — ORDER. §227 whose consent is necessary, must appear before the eonrt, and [4] the necessary consent must thereupon be signed and [5] an agreement 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 persons whose consent is necessary are not within or are not residents of said county, then [6] their written consent, duly proved or acknowledged, according to sections eleven hundred and eighty-two and eleven hundred and eightj'-three [7] must be filed in said superior court at the time of the application for adoption. History: Enacted March 21, 1S72; amended Feb. 9, 1876, Code Anidts. 1875-6, p. 70; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 4; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 339, held unconstitutional; see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 555; amended March 16, 1907, Stats, and Amdts. 1907, p. 329, Kerr's Stats, and Amdts. 1906-7, p. 401. In effect immediately. See Kerr's Cyc. C. C. for 13 pars, annotation. 81 C. 408. 441, 446, 21 P. 976, 22 P. 742, 1028, 6 L. 594 (cited and applied); 87 C. 638, 640, 25 P. 967 (construed); 96 C. 532, 567, 31 P. 915, 19 L. 40 (referred to in discussion); 98 C. 531 (cited), 537 (referred to with other sections dis. op.), 547 (con- strued dis. op.), 552, 33 P. 460, 21 L. 380; 102 C. 70, 77, 41 A. S. 163, 36 P. 407 (construed). Collateral attack on proceedings of. — See 10 Eilcyc. P. 850. Evidence on adoption. — See 1 Decen. Dig. p. 406, § 17. Hearing and determination of application. — See 10 Encyc. P. 848; 1 Decen. Dig. p. 403, § 13. Jurisdiction — Proceedings to conform to statute. — See 10 Encyc. P, 846; 1 Decen. Dig. p. 402, § 10. Nature of proceedings. — See 1 Decen. Dig. p. 398, § 1. Notice of proceedings. — See 10 Encyc. P. S48; 1 Decen. Dig. p. 403, § 12. Order or decree on. — See 1 Decen. Dig. p. 404, § 14. Petition for. — See 10 Encyc. P. 487; 1 Decen. Dig. p. 403, § 11. Review and revocation. — See 10 Encyc. P. SI9; 1 Decen. Dig. p. 405, §§ 15, 16. §227. JUDGE'S OKDER I> .VDOPTION rUOCEEDIXGS. The court must [1] examine all persons appearing before it pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adop- 113 § 228 CIVIL CODE. [Div.I,Pt.III. tion, it must [2] make an order declaring that tlie child shall thenceforth be regarded and treated in all respects as the child of the person adopting. The petition, agreement, con- sent, and order must be filed and registered in the office of the county clerk in the same manner as papers in other special proceedings. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 340, held unconstitutional; see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 556. See Kerr's Cyc. C. C. for 19 pars, annotation. 57 C. 484, 491 (cited and discussed); 75 C. 213, 218-219, 7 A. S. 146, 16 P. 887, 888 (construed); 81 C. 408, 441, 446, 21 P. 976, 22 P. 742, 1028, 6 L. 594 (cited and applied); 98 C. 531, 536 (con- strued with other sections), 537, 538, 547 (construed dis. op.), 33 P. 460, 21 L. 380 (construed); 102 C. 70, 77, 80, 41 A. S. 163, 36 P. 407 (construed and applied); 106 C. 562, 564, 565, 566, 39 P. 860 (construed); 131 C. 469, 470, 471, 82 A. S. 371, 63 P. 736 (construed and applied); 140 C. 468, 469, 74 P. 10 (referred to); 141 C. 403, 406, 99 A. S. 80, 74 P. 1039 (construed and applied). ' § 228. EFFECT OF ADOPTION. A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation. Hi-story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 195. See Kerr's Cyc. C. C. for 8 pars, annotation. 57 C. 484, 491 (construed); 75 C. 213, 219, 7 A. S. 146, 16 P. 887, 888 (construed); 81 C. 408, 441, 446, 21 P. 976, 22 P. 742, 1028, 6 L. 594 (cited and applied); 106 C. 377, 379, 380, 39 P. 779 (construed); 131 C. 180, 182, 63 P. 345 (construed); 140 C. 468, 469, 74 P. 10 (referred to). As to effect of adoption, see Kerr's Cyc. C. C. § 193 and note. Adopted children, right to inherit. — See 118 A. S. 684. Adoption of children, effect on kindred of tlie person adopt- ing-. — See 109 A. S. 674. Effect of adoption of children on property rights of sur- viving spouse. — See 1 Cent. Dig. col. 1974, §§43, 44; 1 Decen. Dig. p. 409, § 24. Inheritance by adopted children. — See 1 Decen. Dig. col. 1966, §§35-40; 1 Decen. Dig. p. 407, §21. 114 mi Titll.ch.II.] ILLEGITIMATE CHILD. §§229,230 Inheritance from or through adopted children. — See 1 Cent. Dig. col. 1972, §§41, 42; 1 Decen. Dig. p. 409, §22. Rights, duties and liabilities created by adoption. — See 1 Cent. Dig. col. 1964, §§ 29-44. Status after adoption. — See 1 Decen. Dig. p. 406, § 18. §229. EFFECT ON FORMER RELATIONS OF CHILD. The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it. History: Enacted March 21, 1872. 81 C. 408, 441, 446, 21 P. 976, 22 P. 742, 1028, 6 L. 594 (cited and applied); 106 C. 377, 378, 379, 39 P. 779 (quoted in discussion declaring status changed by adoption proceedings). § 230. ADOPTION OF ILLEGITIMATE CHILD. The father of an illegitimate child, by [1] publicly acknowledging it as his own, [2] receiving its as such, [3] with the consent of his wife, if he is married, [4] into his family, and [5] otherwise treating it as if it were a legitimate child, thereby adopts it as siicli; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provi- sions of this chapter do not apply to such an adoption. HlNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 37 pars, annotation. 52 C. 84, 85, 86, 87 (construed); 56 C. 413, 416, 419 (referred to); 57 C. 484, 491. 492 (construed); 75 C. 379. 381, 382, 17 P. 434. 436 (applied); 81 C. 408, 421. 422. 432, 434. 441. 442. 443, 444, 445. 446, 447. 457. 458, 21 P. 976. 22 P. 742, 6 L. 594 (con- strued and applied); 96 C. 532, 557, 558, 559, 560. 572. 573, 576. 582. 591. 592. 594. 595. 31 P. 915. 19 L. 40 (construed and applied); 64 P. 1076 (construed); 102 C. 254. 262, 36 P. 522 (referred to); 127 C. 431, 434, 59 P. 787 same case on writ of error, ISO U. S. 333. 335. 336. 45 L. ed. 557. 558. 559 (referred to with other sec- tions); 64 P. 1076 (applied); 135 C. 385. 386 (cited in discussion), 388 (admissible to prove legitimation), 67 P. 321; 136 C. 394. 395. 396. 68 P. 1026 (defining family); 137 C. 298, 299. 300. 92 A. S. 175. 70 P. 91 (referred to with other sections); 73 P. 186 (construed and applied); 142 C. 158. 160 (cited), 168, 169 (con- strued, and former decisions reviewed and reconciled). 170. 171. 172 (dis. op.), 75 P. 790; 180 U. S. 333. 335. 336. 45 L. ed. 557. 558. 559, same case below, 127 C. 431, 434. 59 P. 787 (referred to with other sections). 115 § 236 CIVIL CODE. [Div.I,Pt.III. TITLE III. GUARDIAN AND WARD. [Under this head the Code Commissioners placed not only the provisions relating to the guardianship of the person and estate of minors, but also those relating to the custody and care of the person and property of persons of unsound mind. "Com- mittee" of a lunatic is termed "guardian."] § 236. Guardian, what. § 237. Ward, what. § 238. Kinds of guardians. § 239. General guardian, what. § 240. Special guardian, what. § 241. Guardian appointment by will, etc. § 242. No person guardian of estate without appointment [repealed]. § 243. Appointment of guardian by court [repealed]. § 244. Rules for awarding custody [repealed]. § 245. Jurisdiction [repealed]. § 246. Rules for awarding the custody, or appointing a general guardian of minors. § 247. Powers of guardian appointed by court [repealed]. § 248. Duties of guardians of the person [repealed]. § 249. Duties of guardian of estate [repealed]. § 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. Suspension of power of guardian-. § 256. Release by ward. § 257. Guardian's discharge. § 258. Insane persons [repealed]. §236. GUAEDIAIV, WHAT. A guardian is a person appointed to take care of the person or property of another. History: Enacted March 21, 1872. 117 C. 640, 644, 49 P. 983, 59 A. S. 220 (applied). GUARDIAN AND WARD. Accounting and settlement of guardians, — See 1 Church's New Probate Law and Practice 198-213. 116 « I Tit.III.] GUARDIAN AND WARD. | 236 Alienation of affections by guardian, liability. — See 8 A. C. 812, 813. Appointment of guardian. — See 1 Cburch's New Probate Law and Practice 164-169. Authority of guardian, as to control over person of married • ward.— See 3 A. C. 1050. r&t^> Bond of guardian — Liability thereon. — See 1 Church's New Probate Law and Practice 221-226; 45 L. 339: 48 L. 589; 52 L. 187; 55 L. 392; 58 L. 86. Same — Necessity of to make acts valid. — See 33 L. 759-764. Deceased guardian, method of compelling settlement of ac- counts by. — See 8 A. S. 684. Duty of guardian as to control of property, support, main- tenance and custody of ward. — See 1 Church's Now Probate Law and Practice 170-172. Duties and powers of guardians. — See 1 Church's New Pro- bate Law and Practice 172-174. Embezzlement by guardian. — See 8 A. C. 19-0; 1 Church's New Probate Law and Practice 216. Expenditure in excess of income of ward authorized when. — See 49 A. D. 657. Garnishment of guardian for debt of ward. — See 11 L. N. S. 706. Guardian as interested witness in suit involving ward's estate.— See 4 A. C. 1064, 1068. Guardians by nature. — See 11 L. 440. Guardianship of Indians. — See 1 Church's New Proliato Law and Practice 169. Guardianship of natural child. — See 6 L. 705. Investments by guardians. — See 1 Church's New Probate Law and Practice 178-180. Lease and demise of ward's property. — See 1 Cliurch's New Probate Law and Practice 193. Lease executed by guardian to ward, when voidable. — See 25 A. R. 728. Liability of guardian. — See 1 Church's New Probate Law and Practice 214-216. Same — For misappropriation of ward's funds by attorney. — See 5 L. N. S. 575. Liability of sureties on bond of guardian. — See 4 A. C. 314, 345. Limitation of actions against guardians. — See 1 Church's New Probate Law and Practice 226. Maintenance of ward. — See 1 L. 304. Mortgage of ward's property. — See 1 Church's New Probate Law and Practice 194-196. Non-resident guardians and wards. ^-See 1 Church's NeK Pro- bate Law and Practice 196-198. 117 §§ 237-239 CIVIL. CODE. [Div.I.Pt.III. Non-resident minors, proceedings to transmit their property to foreign guardians.- — See 95 A. D. 666. Personal liability of guardians. — See 75 A. D. 447. Powers of guardians — As to generally, see 1 Church's New Probate Law and Practice, 174-178; 1 L. 270; 1 L. 304; 16 L. 254, 507; 17 L. 297; 18 L. 789; 32 L. 671, 683; 58 L. 931. Same — Common law powers. — See 89 A. S. 257. Same — In chancery and at common law. — See 18 A. D. 689. Same — Transfer of personal property to ward. — See 5 A. C. 581. Process — ^Waiver by guardian of service on minor. — See 95 A. D. 461. Removal of guardians. — See 1 Church's New Probate Law and Practice 217. Rights and liabilities of ward. — See 1 Church's New Probate Law and Practice, 218-221. Rights and powers of guardians. — See 1 Church's New Pro- bate Law and Practice, 174-178; also "Powers of Guardians," this note. Sale of lands by guardians. — See 1 Church's New Probate Law and Practice 180-193. Same — Notice of application for, as affecting validity of. — See 120 A. D. 148; 8 L. N. S. 1215. State guardianship of child. — See 15 L. 593. Testamentary guardians and their powers. — See 29 A. D. 712. § 237. WARD, "WHAT. The person over whom or over whose property a guardian is appointed, is called his ward. History: Enacted March 21, 1872. §238.- KINDS OF GUARDIANS. Guardians are either: 1. General; or, 2. Special. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 117 C. 640, 643, 59 A. S. 220, 49 P. 983. As to many miscellaneous matters in guardianship, see note § 236, ante. Testamentary guardian, — as to, see Kerr's Cyc. C. C. § 241 and note pars. 3-8; 29 A. D. 712. § 239. GENERAL GUARDIAN, WHAT. A general guardian is a guardian of the person or of all the property of the ward within this state, or of both. History: Enacted March 21, 1872. 118 lb Tit.III.] APPOINTMENT BY WII.L. §§ 240-243 §240. SPECIAL GUARDIAN, >VHAT. Every other is a special guardian. History: Enacted Marcli 21, 1872. §241. GUARDIAN APrOINTMENT BY WILL, ETC. A guardian of the person or estate, or of both, of a child born, or likely 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 consent. 2. If the cliild he illegitimate, by the mother. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 195, 196. See Kerr's Cyc. C. C. for 13 pars, annotation. 84 C. 592, 596, 597, 24 P. 310 (construed); 109 C. 643. 646. 647 (referred to with other sections); 128 C. 214, 218, 79 A. S. 43, 60 P. 762 (referred to witli other sections); 130 C. 380, 383 (con- strued), 62 P. 613. As to many miscellaneous matters in guardianship, see note § 236, ante. As to testamentary guardians and their powers, see 1 Clnirch's New Probate Law and Practice 90, 2 Id. 1446; 29 A. D. 712. §242. X) PERSON GUARDIAN OE ESTATE WITIKKIT APPOINTMENT (repealed). History: Enacted Marcli 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 340. held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905. Stats, and Amdts., p. 728. Control of estate without guardianship, — as to, see Kerr's Cyc. C. C. § 202 and note. Power of guardian appointed by court. — as to. see Kerr's Cyc. C. C. § 247 and note. §24:i. APPOINTMENT OF (iUARDlW HV ((HIM (re- pealed). History: Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 196; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 4; repealed by Code Commission, Act March 16. 1901, 119 §§ 244-246 CIVIL CODE. [Div.I,Pt.III Stats, and Amdts. 1900-1, p. 340, held unconstitutional; see his- tory, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 728. See Kerr's Cj'c. C. C. for 12 pars, annotation. 84 C. 592, 596, 24 P. 310 (construed); 109 C. 646, 647, 649, 42 P. 428 (referred to with other sections); 128 C. 214, 218, 79 A. S. 43, 60 P. 762 (referred to with other sections); 130 C. 381, 383, .62 P. C13 (referred to in discussion). §244. RULES FOR AWARDING CUSTODY (repealed). History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 4; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 340, held unconstitu- tional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 728. Non-resident — Appointment of guardian over property situ- ated in this state of non-resident infant. See Kerr's Cyc. C. C. §§ 1793 et seq. and notes. §245. JURISDICTION (repealed). History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 340, held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 728. Maintenance^Failure, neglect, or refusal of guardian to sup- ply ward with suitable and necessary maintenance, etc., court may compel. See Kerr's Cyc. C. C. P. § 1771 and note. §246. RULES FOR AWARDING THE CUSTODY, OR APPOINTING A GENERAL GUARDIAN OF MINORS. In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following considerations : 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 is of a sufficient age to form an intelligent preference, the court may consider that preference in deter- mining the question; 2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right; but 120 •J lb Tit.III.] AWARDING CUSTODY. § 246 other things being equal, if the child is of tender shears, it should be given to the mother; if it is of an age to require education and preparation for labor and business, then to the father; 3. Of two persons equally entitled to the custody 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. 4. Any parent who [1] knowingly or wilfully al)andons, or [2] having the ability so to do, [3] fails to maintain his minor child under the age of fourteen years, forfeits the truanlian- ship of such child; and any parent or guardian who [1] know- ingly permits his child or ward to remain for the space of one year in any orphan asylum of this state, wherein such child is supported by charity, and who, [2] during such period, fails to give notice in writing to the managers or officers of such asylum that he is such parent or guardian, .abandons and forever forfeits all rifyht to the i;nardiansliip, care, cus- tody, and control of such child. The officers and managers of any orphan asylum having any such abandoned child in its care have the preferred right to the guardianship of such child. HlMtory: Enacted March 21, 1872; amended Marcli 30, 1874, Code Anidts. 1873-4, p. 196; amended bj' Code Commission, Act March Ifi, 1901, Stats, and Amdts. 1900-1, p. 340, held unconstitu- tional; see history, § 4 ante; amendment re-enacted ^arch 21, 1905. Stats, and Amdts., pp. 728-729. See Kerr's Cyc. C. C. for 7 pars, annotation. 109 C. 643, 661, 42 P. 428 (referred to in discussion); 130 C. 380, 381, 382, 62 P. 013 (construed); 142 C. 423, 426, 76 P. 37 (construed); 1 C. A. 529, 531, 82 P. 558 (applied). As to custody, etc., of minors, see note § 197. ante. As to guardianship of minors, see note § 236. ante. As to many miscellaneous matters of guardianship, see note § 236. ante. 121 §§ 247-249 CIVIL CODE. [Div.I.Pt.III. § 247. POWERS OF GUARDIA?f APPOINTED BY COURT (repealed). History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 729. See Kerr's Cyc. C. C. for 11 pars, annotation. 117 C. 640, 644, 49 P. 983, 59 A. S. 220, 49 P. 983 (applied); 143 C. 402, 403, 77 P. 156 (guardian's authority superior to that of parent). Right of testamentary guardian to custody of ward's person, — as to, see Kerr's Cyc. C. C. § 241 note par. 13. _j §248. DUTIES OF GUARDIANS OF THE PERSON (repealed). History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 729. See Kerr's Cyc. C. C. for 2 pars, annotation. 128 C. 214, 218, 79 A. S. 43, 60 P. 762 (referred to with other sections); 142 C. 423, 426, 76 P. 37 (referred to with other sec- tions); 143 C. 402, 403, 77 P. 156 (guardian's authority superior to that of parent); 2 C. A. 70, 87, 83 P. 89 (reference to decision resting upon express prohibition of section). Custody of ward's person — As to, see Kerr's Cyc. C. C. § 197 and note, § 247 note pars. 3, 4; also note § 697, ante. §249. DUTY OF GUARDIAN OF ESTATE (repealed). Hi.story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 197; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 5; repealed by Code Commission, Act March 16, 1901, Stats, and' Amdts. 1900-1, p. 341, held unconstitutional; see his- tory, § 4 ante; re-repealed March 21,- 1905, Stats, and Amdts. 1905, p. 729. See Kerr's Cyc. C. C. for 8 pars, annotation. 116 C. 386, 388, 47 P. 320; 116 C. 386, 388, 48 P. 326; 117 C. 640, 644, 59 A. S. 220, 49 P. 983 (applied with other sections); 121 C. 468, 472, 53 P. 936 (referred to in discussion); 124 C. 154, 157, 56 P. 896 (quoted in opinion); 134 C. 114, 116, 66 P. 187 (con- strued). As to many miscellaneous matters of guardianship, see note § 236, ante. 122 Tit.III.] DEATH, ETC., OF GUARDIAN. §§ 250-253 §250. RELATION CONFIDENTIAL. The relation of guard- ian and ward is confidential, and is subject to the' provisions of the title on Trust. Ili.slory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 116 C. 386, 391, 48 P. 326. As to trusts, generally, see Kerr's Cyc. C. C. §§ 2215-2250 and notes. §251. GUARDIAN UNDER DIRECTION OF COURT. In the management and disposition of the person or property committed to him, a guardian may be regulated and controlled by the court. History: Enacted March 21, 1872. 6 C. A. 597, 599, 92 P. 671 (cited). §252. DEATH OF A JOINT GUARDIAN. On the death of one of two or more joint guardians, the power continues to the survivor until a further appointment is made by the court. IliNtory: Enacted March 21, 1872. Supervisorship between cotrustees, — as to, see Kerr's Cyc. C. C. § 2288 and note. §253. REMOVAL OF GUARDIAN. A guardian may bo removed by the superior court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform its [his] duties; 3. For incapacity to perform its [his] duties; 4. For gross immorality; 5. For having an interest adverse to the faithful perform- ance of his duties; 6. For removal from the state; 7. In the case of a guardian of the property, for insol- vency; or, 123 §§ 254, 255 CIVIL CODE. [Div.I.Pt.III. 8. When it is no longer proper that the ward should be under guardianship. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 5. See Kerr's Cyc. C. C. for 7 pars, annotation. 143 C. 402, 409, 77 P. 156 (cited). As to many miscellaneous matters of guardianship, see note § 236, ante. Removal and resignation of guardian, — as to, see Kerr's Cyc. C. C. P. § 1801 and note; 1 Church's New Probate Law and Practice 217. §254. GUARDIAN APPOINTED BY PARENT, HOW SUPERSEDED. The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by section two hundred and fifty-three; 2. By the solemnized marriage of the ward; or, 3. By the ward's attaining majority. Hi.story: Enacted March 21, 1872. 121 C. 468, 474, 53 P. 936 (miscited for § 255 in connection with Code Civ. Proc. § 1753). As to many miscellaneous matters of guardiansliip, see note § 236, ante. §255. SUSPENSION OF POWER OF GUARDIAN. 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. Hi.story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 197; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitu- tional; see history, § 4 ante. 143 C. 221, 230, 234, 77 P. 65 (cited, effect of ward's marriage). As to many miscellaneous matters of guardianship, see note § 236, ante. 124 II Tit.ITL] RELEASE, DISCHARGE. §§.256-258 §256. RELEASE BY ^VAKD. After a ward has come to his majority, he may settle accounts with his guardian, and give him a" release, which is valid if obtained fairly and without undue influence. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 143 C. 221, 229, 77 P. 65 (construed with § 257). As to many miscellaneous matters of guardiansliip, see note § 236, ante. §257. GUARDIA>''S DISCHARGE. A guardian appointed by a court is not entitled to his discharge until one year after the ward's majority. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 121 C. 468, 475 (applied, but erroneously cited as C. C. P.), 53 P. 936, 939 (correct citation); 143 C. 221, 229, 234, 77 P. 65 (construed with § 256). Discharge of guardian of insane person on sliowing, on appli- cation of ward or otlierwise, that guardiansliip is no longer necessary. — See Kerr's Cyc. C. C. P. § 1802 and note. Marriage of minor ward terminates guardianship. — See Kerr's Cyc. C. C. P. § 1802 and note. §258. IJfSANE PERSONS (repealed). History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 5; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconsti- tutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 729. Guardianship of insane person and incompetent person, when and how made, hearing.and examination, etc., — as to, see Kerr's Cyc. C. C. P. §§ 1763-1767 and notes. 125 § 264 CIVIL CODE. [Div.I,Pt.III. TITLE IV. MASTER AND APPRENTICE. § 264. Minors, when and to whom may be bound as appren- tices. § 265. Persons who may bind minor with liis consent. § 266. Indenture of apprenticeship, liow to be executed and what to contain. § 267. Jury trial as to facts of incapacity, etc., of parent. § 268. Apprenticing of poor and liomeless minors. § 269. Master to keep apprentice within the state, to deliver him money and other property therein. § 270. Duty to inquire into the treatment of minor appren- tices. § 271. Hearing of complaints of apprentices. § 272. Power of court to discharge apprentice from appren- ticeship. § 273. Liability of master for breach of his covenant. § 274. Liability of, and proceedings against, apprentices guilty of gross misbehavior. § 275. Enticing away apprentices and liability for. § 276. Release of master moving out of state or quitting business. § 264. MIIVOKS, WHEN AND TO WHOM MAY BE BOUND AS APPRENTICES. Every minor of the age of fourteen years or upwards may be bound by indenture as an apprentice to any mechanical trade or art or tlie occupation of farming to the age of eighteen, if a female, or to the age of twenty- one years, if a male. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Anidts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 560. See Kerr's Cyc. C. C. for 26 pars, annotation. As to assignments of contracts of apprenticeship, see 25 A. D. 180. As to contract of apprenticeship and the power of an infant to bind himself thereby, see 23 A. D. 659, 34 A. D. 588, 32 A. R. 155, 18 A. S. 619-627. 126 I Tit. TV.] WHO MAY BIND MINOR. §§ 265, 266 As to the effect of part performance of contract for services by infants, see 24 L. 231-235. As to right of an infant to repudiate contract for services and sue on quantum meruit, see 15 L. 211. As to right of infant to disaffirm or rescind contract, see Kerr's Cyc. C. C. § 235 and note. §265. PERSONS >VIIO MAI BIND MINOR WITH HIS CONSENT. A minor, with his consent, may be bound by [1] his father, or, in case of his [a] death or [b] incompetency, or where he has [c] wilfully abandoned his family for one year without making suitable provision for their support, or [d] is habitually intemperate in the use of intoxicants, or [c] is a vagrant, then by [2] his mother or [3] legal guardian. An [4] executor who, by the will of the father, is directed to bring up a child to a trade or calling, has power to bind by indenture in like manner as the father might have done, if living. If a child is iilotfitiinate, the mother alone has power to bind him. If a minor has no parent or guardian competent to act for him, he may bind himself, with the api)roval of the superior court of the county wherein he resides. [Mother marrying!:.] If the mother of a minor, whether legitimate or illegitimate, marries after his birth, she cannot bind him without the approval of such superior court. IliMtorys Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 5; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconsti- tutional; see history, § 4 ante; amendment re-enacted March 21, 1905. Stats, and Amdts. 1905, p. 561. See Kerr's Cyc. C. C. for 25 pars, annotation. As to indorsement of consent on indentur<\ sio Korr's Cyc. C. C. § 266 and note. §2«(5. INDENTrRE OF Vri'REXTK ESUir, HO>V TO BE EXE( UTEI) AND WHAT 'n> ( ONTAIX. Every indenture of apprenticeship [1] must be executed in dui)licate, [2] must state the age of the minor, and, except as hereinafter pro- vided, [3] must show that he consented thereto, [4] must be signed by him and the person binding and the master, and when made with the approval of the snperior court, [5] a 127 § 267 CIVIL CODE. [Div.I,Pt.III. certified copy of the order of approval must be attached to the indenture. One copy of the indenture [6] must be deliv- ered to the master and [7] the other kept for the use of the minor by his parent or guardian w^hen executed by him, or, when made w^ith the approval of the court, [8] it must be filed and deposited with the clerk for safekeeping for the use of the minor. No indenture binds the minor after tlie deatli of the master, but thereafter the minor may be bound anew. Every indenture entered into otherwise than as herein provided is, as against the apprentice, absolutely void. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 561. See Kerr's Cyc. C. C. for 23 pars, annotation. As to conseTit in general, see Kerr's Cyc. C. C. § 265 and note. As to evidence of consent, see 2 Encyc. L. 492; 3 Cyc. 548. As to form and validity of indenture of apprenticeship, see 3 Cyc. 543. As to necessity of inserting- age of minor in deed, see 2 Encyc. L. 496; 3 Cyc. 550. As to signature, see Kerr's Cyc. C. C. § 265 note par. 23. As to validity of instrument not fully complying with statute, see 2 Encyc. L. 497. §267. JURY TRIAL AS TO FACTS OF INCAPACITY, ETC., OF PARENT. Facts of incapacity, desertion, habitual intemperance, and vagrancy must be decided in said court by a jury, before the indenture can take effect, and an indorse- ment on the indenture, under seal of the court, that the charge or charges are proved, is sufficient evidence of the mother's power to give such consent; but if the jury does not find the charge or charges to be true, the person at whose instance such proceedings may have been had must pay all costs attending the same. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 561. As to power of mother to consent to bind minor, see Kerr's Cyc. C. C. § 365 note pars. 10-14. 128 r lllli Tit.IV.] APPRENTICING HOMELESS. §§268,269 §268. APPBEXTICIIfG OF POOR A>D HOMELESS MINOE. When a minor is poor, homeless, chargeable to the county or state, or an outcast, who has no visible means of 'obtaining an honest livelihood, the superior court may, with his consent, bind him as an apprentice during his minority. Proceedings therefor may he instituted by any citizen, and no fee must be charged by any officer for any act in con- nection therewith. In all indentures by the court for binding out an orphan or homeless minor as an apprentice there must be inserted among other things, [1] a clause to the following effect: that the master to whom such minor is bound must cause him to be taught to read and write and the ground rules of arithmetic, ratio and proportion, and must give him the requisite instruction in the different branches of his trade or calling, and, [2] at the expiration of his term of service, must give him or her fifty dollars in gold, and [3] two whole new suits of clothes, to be worth in the aggregate at least sixty dollars gold. History: Enacted March 21, 1872; amended by Code Comniis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 342, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, pp. 561, 562. See Kerr's Cyc. C. C. for 24 pars, annotation. As to binding by overseers of poor, etc., see 2 Encyc. L. 492. As to consent, execution, and approval of apprenticeship deed, see 3 Cyc. 548. As to duty to furnish medical aid to apprentice, see 28 L. 546. 555. As to necessity of providing for education of child, see 2 Encyc. L. 496, 513. As to necessity of providing for instruction in some trade or business, see 3 Cyc. 549. As to necessity of signature of master, see 11 Encyc. L. 495. As to notification, see 3 Cyc. 546. As to presence of Infant in court, see 3 Cyc. 546. As to proceedings for apprenticing, see 3 Cyc. 546. As to tJie mode of binding apprentices, see 2 Encyc. L. 489. §2ID WHAT PRIVATE CORPORATIONS. Corporations are either public or private. Public corporations are formed or organized for the government of a portion of the state; all other corpora- tions are private. Historyj Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 197. 147 §§ 285, 286 CIVIL CODE. [Div.I.Pt.lV. See Kerr's Cyc. C. C. for 29 pars, annotation. 51 C. 406, 409 (applied to levy districts); 117 C. 114, 121, 48 P. 1016 (applied to reclamation districts); 134 C. 477, 478, 66 P. 668 (applied to reclamation districts); 144 C. 329, 334, 77 P. 937 (section must be taken as definition of a public or municipal corporation); 151 C. 797, 805, 91 P. 740, 744 (what is not essential to a public corporation). As to many miscellaneous matters relating to corporations generally, see note § 283, ante. §285. PRIVATE, HOW FORMED. Private corporations may be formed by the voluntary association of any three or more persons in the manner prescribed in this article. A majority of such -persons must be residents of this state. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 198; March 20, 1905, Stats, and Amdts. 1905, p. 502. See Kerr's Cyc. C. C. for 27 pars, annotation. 128 C. 257, 260, 60 P. 865 (referred to in construing other sec- tions). As to corporations de facto, see 19 A. D. 67; 33 A. S. 181. As to defective formation of corporation by reason of failure to comply with statute, see Kerr's Cyc. C. C. § 290 note pars. 33 et seq.; also 33 A. S. 176-186. As to many miscellaneous matters relating to corporations generally, see note § 283, ante. As to requisites for valid incorporation de jure, see Kerr's Cyc. C. C. § 290 note pars. 6-32. As to substantial compliance being sufficient to form de facto corporation, see Kerr's Cj'C. C. C. § 290 note pars. 4, 5. § 286. [SAME]— FOR WHAT PURPOSE. Private corpora- tions may be formed for anj"- purpose for which individuals may lawfully associate themselves. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 198. 52 C. 53, 60, 28 A. R. 629 (policy of exercise of enlarged powers by corporations is bej'-ond reach of the courts); 109 C. 571, 590, 42 P. 225 (it is infra vires, when, to purchase, hold, and sell stock in other corporations); 113 C. 526, 531, 45 P. 820 (cited); 144 C. 578, 594, 77 P. 1113 (construed with §360, as to power of corporation to acquire title by i^rescription). As to many miscellaneous matters affecting corporations gen- 148 Tit.I,cli.I,art.I.] PURPOSES OF private. § 286 erally, see note § 283, ante. An enumeration of seventeen pur- poses for which corporations might be formed, was contained in the original section, which prohibited all other purposes. Bonds may be given by private corporations, where required by law (Stats. 1885, p. 114; 1893, p. 476), see Hen. G. L., tit. Bonds Required by Law, and note; also tit. Libel and Slander. See also Kerr'.s Pocket Pol. C. § 955 subd. 6; and Kerr'.s Pocket C. C. P. §§ 1056, 1057. Cemetery associations, act authorizing incorporation of rural, see Hen. G. L. tit. Cemeteries. Chambers of Commerce.— See Kerr's Cyc. C. C. § 286, note. Co-operative associations, act providing for incorporation and management of (Stats. 1895), see Hen. G. L., tit. Corpora- tions. Corporations, acts protecting stockholders and persons deal- ing with company, see Hen. G. L., tit. Corporations. Deed by corporation, manner of executing. — See Hen. G. L. (Stats. 1895, p. 75), tit. Cemeteries. Fire insurance companies, organization and management. — • See Hen. G. L. (Stats. 1865-6, p. 743), tit. Corporations; for county fire insurance companies (Stats. 1897, p. 439), see Id. tit. Corporations. Foreign corporations, acts relating to. — See Hen. G. L., tit. Corporations. Same — Certified copy of certificate to be filed with secretary of state (Stats. 1901, p. 108). — See Hen. G. L., tit. Corporations. Surety corporations, for statutes providing that corporations may act as surety where bond is required by law. — See Hen. G. L., tit. Corporations. Homestead corporations, act atithorizing formation of.— See Hen. G. L., note to tit. Corporations. Insurance in assessment plan, act relating to, and regulating conduct of business (Stats. 1873-4, p. 745; Stats. 1891, p. 126). — See Hen. G. L., tit. Corporations. Irrigation, as to act relating, see Hen. G. L., tit. Irrigation. Mutual insurance companies, as to (Stats. 1873-4, p. 745). — See Hen. G. L., tit. Corporations. Acts April 2, 1866, p. 752; 1868, p. 330, 661; 1880, p. 239, incor- porated in Civil Code. Railroads, for acts requiring safeguarding, sale of franchise, management and operation (other than "special" acts). — See Hen. G. L., tits. Commissioner of Transportation; Railroads. Telegraph Companies, as to granting franchise, etc. (Stats. 1862, p. 288), see Hen. G. L., tit. Telegraph. This statute was thoroughly codified except as to §§ 11, 14, 15, which may possibly have some vitality; but see Hen. G. L., tit. Telegraph, note. 149 § 287 CIVIL CODE. [Div.I.Pt.IV. §287. EXISTENCE, HOW CONTINUED [UNDER CODE]. Any corporation existing on the first daj' of January, one thousand eight hundred and seventy-three, 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 [1] by the unanimous vote of all its directors, or such election may be made [2] at any annual meeting of the stockholders, or members, or [3] at any meeting called by the directors expressly for considering the subject, if voted by stockholders representing a majority of the capital stock, or by a majority of the members, or [4] may be made by the directors upon the written consent of that number of such stockholders or members. [Certificate to be filed.] A certificate of the action of the directors, signed by them and their secretary, when the election is made by their unanimous vote, or upon the written consent of the stockholders or members, or a certificate of the proceedings of the meeting of the stockholders or mem- bers, when such election is made at any such meeting, signed by the chairman and secretary of the meeting and a majority of the directors, must be filed in the office of the clerk of the county where the original articles of corporation are filed, and a certified copy thereof must be filed in the office of the secretary of state; and thereafter the corporation shall continue its existence under the provisions of this code which are applicable thereto, and shall possess all the rights and powers, and be subject to all the obligations, restrictions, and limitations prescribed thereby. HLsfory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 198-199. See Kerr's Cyc. C. C. for 5 pars, annotation. 57 C. 532, 533 (construed and applied); 105 C. 526, 552, 38 P. 94, 109, 722, 28 L,. 773 (referred to); 109 C. 571, 579, 580, 586, 42 P. 225 (referred to); 111 C. 57, 65, 52 A. S. R. 149, 43 P. 418 (referred to); 119 C. 334, 342, 51 P. 317 (referred to); 122 C. 335, 336, 337, 339, 55 P. 10 (cited). As to many miscellaneous matters affecting' corporations gen- erally, see note § 283, ante. 150 Tit.I,ch.I,art.I.] instrument creating. §§288-290 As to validating act, passed before Code (April 1, 1864, Stats. 1863-4, p. 303), as to corporations theretofore deficiently incor- porated, see 56 C. 345, 348. Building and loan associations — Election to continue in btisi- ness. — See Kerr's Cyc. C. C. § 646 and note. §288. EXISTING CORPOEATIOXS ^OT AFFECTED. No corporation formed or existing before twelve o'clock, noon, of the day upon which this code takes effect, is affected by the provisions of Part IV of Division First of this code, unless such corporation elects to continue its existence under it as provided in section 287; but the laws under which such corporations were formed and exist are applicable to all such corporations, and are repealed, subject to the provisions of this section. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 52 C. 132, 141 (referred to in construing other sections); 60 C. 308, 310 (construed); 105 C. 526, 550, 552, 553, 38 P. 94, 109, 722, 28 L. 773 (construed and applied); 109 C. 571, 579, 580, 581, 582, 583, 42 P. 225 (construed); 111 C. 57, 65, 52 A. S. 149, 43 P. 418 (applied to pre-existing bank); 119 C. 334, 341, 342, 51 P. 317 (applied to pre-existing bank); 122 C. 335, 337, 55 P. 10 (con- strued). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §289. NAME OF INSTRUxMENT CREATING CORPORA- TION. The instrument by which a private corporation is formed is called "articles of incorporation." History: Enacted March 21, 1872. 128 C. 257, 260, 60 P. 865 (referred to). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §290. ARTICLES OF INCORPORATION. WHAT THEY MUST SET FORTH. Articles of incorporation must be pre- pared, setting forth: 1. The name of the corporation. 2. The purpose for which it is formed. 3. The place where its principal business is to be transacted. 151 § 290 CIVIL CODE. [Div.I,Pt.IV. 4. The term for which it is to exist, not exceeding fifty years. 5. [Number of directors — Lodges.] The number of its directors or trustees, which shall not be less than three, and the names and residences of those who are appointed for the first year; provided, that the corporate powers, business, and property of corporations formed, or to be formed, for the purpose of erecting and managing halls and buildings for the meetings and accommodations of sev- eral lodges or societies of any benevolent or charitable order or organization, and in connection therewith the leasing of stores and offices in such building or buildings for other pur- poses, may be conducted, exercised, and controlled by a board of not less than three or more than fifty directors, to be chosen from among the stockholders of such corporation, or among the members of such order or organization; [Number of directors may be changed.] And provided, also, that at any time during the existence of corporations for profit, other than those of the character last hereinabove provided for, the number of the directors may, by a majority of the stockholders of the corporation, be increased, or dimin- ished to any number not less than three, 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 arti- cles of incorporation; [Corporations for social purposes.] 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, conducted, 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 number 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 constitution or by-laws, shall act for 152 Tit.I,ch.I,art.I.] articles, etc. §290 any specified length of time, or otherwise, as shall be in the constitution or by-laws set forth. 6. [Capital Stock.] The amount of its capital stock, and the number of shares into which it is divided. Corporations formed for profit, pursuant to the provisions of this code, may, by their articles of incorporation, provide for the classifi- cation of their capital stock into preferred and common stock. In the event that the articles of incorporation shall provide for such classification the same must contain a statement of the number of shares of stock to which preference is granted, and the number of shares of stock to which no preference is granted. The articles of incorporation shall also state, in clear and succinct manner, the nature and extent of the preference granted, and except as to the matters and things so stated, no distinction shall exist between said classes of stock or the owners thereof; [Classes or stock — Distinctions.] Provided, however, that no preference shall be granted nor shall any distinction be made between the classes of stock either as to voting power or as to the statutory or constitutional liability of the holders thereof to the creditors of the corporation. 7. [Amount subscribed.] If there is a capital stock, the amount actually subscribed, and by whom. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 199; April 1, 1876, Code Amdts. 1875-6, p. 70; April 16, 1880, Code Amdts. 1880 (C. C. pt.), p. 11; March 31, 1891, Stats, and Amdts. 1891, p. 285; March 20, 1905, Stats, and Amdts. 1905, pp. 502-503; amended March 18, 1907, Stats, and Amdts. 1907, p. 347, Kerr's Stats, and Amdts. 1906-7, p. 401. See Kerr's Cyc. C. C. for 38 pars, annotation. 53 C. 123, 128 (applied to railroads); 64 C. 49, 52, 28 P. 495 (construed with §419 and applied to insurance companies); 65 C. 600, 601, 4 P. 641 (construed and applied); 89 C. 52, 54, 26 P. 605 (construed with other sections); 102 C. 55, 64, 41 A. S. 151, 36 P. 368 (construed and applied); 106 C. 302, 309, 39 P. 617 (giving history of section); 127 C. 261, 267, 268 (construed and applied), 269 (construed with §305), 59 P. 563; 128 C. 257, 260 (construed), 261, 262 (applied to social corporations), 60 P. 865; 130 C. 27, 39, 62 P. 386 (referred to with other sections); 146 C. 219, 222, 79 P. 889 (subd. 5 of this section construed with § 302, as to exercise of powers by directors named in articles 153 § 290a CIVIL CODE. [Div.I.Pt.IV. of incorporation); 148 C. 313, 314, 328, 83 P. 54, 5 L. N. S. 174, 7 A. C. 511 (cited as to place of principal business); 2 C. A. 540, 542, 544, 84 P. 296 (cited, as to diminution of directors), 5 F. 403, 409 (articles of incorporation of railroad, telegraph, and wagon-road associations must state what facts). Amendment of 1874 did not require statement in articles of number of shares subscribed, or by whom; but amendment of 1876 did (see People v. Leonard, 106 C. 302, 309, 39 P. 617); so did amendments of 1880 and 1891. Code commissioner has need- less'lj' bungled and confused by incorporating in paragraph 5 what is provided in better shape in § 305 post. As to acknowledgment prerequisite to valid incorporation, see Kerr's Cyc. C. C. § 292 and note. Acknowledgment and verification are essential. — See 130 C. 27, 40, 62 P. 386. As to articles of railroads, wagon-road, and telegraph com- panies, see Kerr's Cyc. C. C. § 291 and note. As to collateral attack, see 19 A. D. 67. As to defective formation of corporations, see 33 A. S. 176-186. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Subscription, proper, requisite to a valid incorporation. — See Kerr's Cyc. C. C. § 292 and note. §290a. MINIMUM CAPITAL REQUIRED TO BE PAID IN. Before the secretary of state issues any certificate of incor- poration or certificate of authority to transact business in this state, to any corporation, authorized in its articles of incor- poration to act as executor, administrator, guardian, assignee, receiver, depositary or trustee, there must be filed in his office the affidavit of the persons named in said articles as the first directors of the corporation, that at least two hundred thousand dollars of the capital stock, has actually been sub- scribed, and paid in to a person named in such affidavit, for the benefit of the corporation and before he issues any certifi- cate of incorporation, or certificate of authority to transact business in this state, to any corporation, authorized in its articles of incorporation to engage in the business of bank- ing, or of receiving the money of others on deposit, there must in like manner be filed the affidavit provided herein that at least twenty-five thousand dollars of the capital stock, has actually been subscribed, and paid in to a person named in such affidavit, for the benefit of the corporation. 154 Tit.I,ch.I,art.I.] FURTHER FACTS. §§ 290y2, 291 History: Enacted March 21, 1907, Stats, and Amdts. 1907, p. 482, Kerr's Stats, and Amdts. 1906-7, p. 402; amended March 13, 1909, Stats, and Amdts. 1909, p. 300. § 2905^. "TEUST" AND "TEUSTEE," WHEN MAI BE PAET OF COEPOEATE NAME. No corporation hereafter formed shall use the word "trust" or "trustee" as a part of its corporate name unless it shall be authorized by its arti- cles of incorporation to act as executor, administrator, guard- ian, assignee, receiver, depositary or trustee, nor shall any corporation hereafter formed accept or execute any trust unless it shall have complied with all the provisions of "An act authorizing certain corporations to act as executor, and in other capacities, and to provide for and regulate the administration of trusts by such corporation," approved April ' sixth, eighteen hundred and ninety-one, and the amendment thereto approved April first, eighteen hundred and ninety- seven. History: Enacted March IS, 1905, Stats, and Amdts. 1905, p. 251. §291. CEETAIN COEPOEATIONS TO STATE FUETHEE FACTS IN AETICLES. The articles of incorporation of any railroad, wagon-road, or telegraph organization must also state : 1. The kind 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. The 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 treasurer of the intended corporation. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 53 C. 123, 128 (erroneously cited as §191); 142 C. 222, 227, 75 P. 575 (cited in discussion); 2 C. A. 546, 553, 555, 557, 84 P. 298 (applied as to power of corporation to condemn rights of way for lines of road not stated in its articles); 5 F. 403, 409 (articles of incorporation of railroad, telegraph, and wagon-road asso- ciations must state what facts). 155 §§ 292, 293 CIVIL CODE. [Div.I.Pt.IV. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 292. HOW EXECUTED — [SlBSt RIPTION AND AC- KN()>VLED(t!3IENT]. The articles of incorporation must be subscribed by three or more persons, a majority of whom must be residents of this state, and acknowledged by each before some officer authorized to take and certify acknowledg- ments or conveyances of real property. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 199; March 20, 1905, Stats, and Amdts. 1905, p. 503. See Kerr's Cyc. C. C. for 11 pars, annotation. 80 C. 348, 353, 22 P. 200 (miscited for §2927 post); 97 C. 276, 278, 280, 33 A. S. 172, 32 P. 236 (construed and applied); 128 C. 257, 260, 261, 263, 60 P. 865 (construed and applied to benevolent and social organizations); 130 C. 27, 39, 62 P. 386 (construed and applied to benevolent associations); 5 F. 403, 409 (articles of incorporation of railroad, telegraph, and wagon-road asso- ciations must state wliat facts). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 2»3. PREREQUISITE TO FILING ARTICLES— AMOUNTS TO BE Sl^BSCRIBED TO BE FIXED. Each intended corpo- ration named in section two hundred and ninety-one, before filing articles of incorporation, must have actually subscribed to its capital stock, for each mile of the contemplated work, the following 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 2 C. A. 546, 550; 84 P. 298 (erroneously cited by court as re- quiring affidavit); 5 F. 403, 409 (articles of incorporation of railroad, telegraph, and wagon-road associations must state what facts). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Amount subscribed and by whom must be fully set forth In 156 Tit.I,ch.I,art.I.] piling articles. §§ 294-296 articles of incorporation of railroads. — Monterey & S. V. R. Co. vs. Hildreth, 53 Cal. 123, 128, 129. See Kerr's Cyc. C. C. § 290 note pars. 26, 27. § 294. PREREQUISITE TO FILING ARTICLES OF IXCOR- PORATIONS FOR PROFIT. Before the articles of incorpora- tion of any corporation referred to in the preceding" section are filed, there must be paid for the benefit of the corpora- tion, to a treasurer elected by the subscribers, ten per cent of the amount subscribed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 2 C. A. 546, 550; 84 P. 298 (erroneously cited by court as re- quiring- afRdavit); 5 P. 403, 409 (articles of incorporation of railroad, telegraph, and wagon-road associations must state ■ what facts). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 295. OATH OF OFFICER TO SUBSCRIPTION OF STOCK AND PAYMENT OF TEN PER CENT. 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 stock thereof has been actually subscribed, and ten per cent thereof actually paid to a treasurer for the benefit of the corporation. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 2 C. A. 546, 550; 84 P. 298 (cited as to requirement of affi- davit). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §296. ARTICLES OF INCORPORATION — CORPORATE NAMES ]»IUST NOT BE DUPLICATED NOR CLOSELY IMI- TATED. Upon filing [1] the articles of incorporation in the office of the county clerk of the county in which the principal business of the company is to be transacted, and [2] a copy 157 § 297 CIVIL CODE. [Div.I,Pt.IV. thereof certified by the county clerk with the secretary of state, and [3] 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 containing the required statement of facts has been filed in his office, and thereupon the persons signing the articles and their associates and successors 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 incorporation, otherwise stated, or in this code otherwise specially provided; [When certificate not to issue — Keseinblauce in name.] Provided, however, that the secretary of state shall not file any copy of the copy of any articles, or issue any certificate of incorporation to any corporation, which articles set forth the corporate name of any corporation heretofore organized in this state, or file any copy of any articles, or issue any certificate of incorporation to any corporation existing at the time of filing said articles, which articles set forth a name so closely resembling the name of such corporation as will tend to deceive. History: Enacted March 21, 1872; amended March 30, 1874, .Code Amdts. 1873-4, pp. 199-200; March 23, 1901, Stats, and Amdts. 1900-1, p. 629. In effect March 23, 1901. See Kerr's Cyc. C. C. for 11 pars, annotation. 72 C. 379, 382, 14 P. 37, 39 (referred to in construing §297); 93 C. 34, 39, 28 P. 792, 793, 15 L. R. A. 106 (referred to with other sections); 102 C. 55, 62, 41 A. S. 151, 33 P. 368 (construed); 111 C. 133, 135, 136, 43 P. 525 (construed); 128 C. 257, 262, 60 P. 865 (construed with other sections); 130 C. 27, 38, 62 P. 386 (construed); 142 C. 276, 281, 100 A. S. 130, 75 P. 832 (referred to in discussion); 146 C. 219, 222; 79 P. 889 (cited, as to how cor- poration is brought into existence); 2 C. A. 546, 550; 84 P. 298 (cited as to necessity of certificate of secretary of state). As to fees for filing, see Kerr's Pocket Pol. C, § 416. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 297. €Ori OF ARTICLES PRIMA FACIE EVIDENCE. A copy of any articles of incorporation filed in pursuance of this 158 Tit.I,ch.I,art.I.] lost articles. §§ 297a, 298 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 evidence of the facts therein stated. History: , Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 200; March 8, 1895, Stats, and Amdts. 1895, p. 30. In effect March 8, 1895. See Kerr's Cyc. C. C. for 7 pars, annotation. 67 C. 485, 488, 8 P. 22, 24 (construed and applied); 72 C. 379, 382, 14 P. 37, 38 (construed and applied); 2 C. A. 546, 555, 84 P. 298 (articles of incorporation as evidence). As to many miscellaneous matters affecting corporations generally, see note § 283, ante. Company in good faith doing business as a corporation. — See. Kerr's Cyc. C. C. §290 note pars. 33, 34; §358 and note. §297a. RESTORATIOX OF LOST ORItllXAL ARTICLES OF IIVCORPORATION. Whenever the articles of incorpora- tion of any corporation have been, or may hereafter be, destroyed by conflagration or other public calamity, a copy of the certified copy of the articles of incorporation of such corporation filed in the office of the secretary of state pursu- ant to the provisions of section two hundred ninety-six of this code, duly certified by such secretary of state, may be filed in the office of the county clerk of the county where such articles of incorporation were on file at the time of their loss or destruction. Any such copy filed pursuant to this section shall have the same force and effect as the document so lost or destroyed. History: Enacted June 16, 1906, Stats, and Amdts. 1906, p. 83, Kerr's Stats, and Amdts. 1906-7, p. 403. In effect immediately. § 298. >VHO ARE MEMBERS AND WHO STOCKHOLDERS OF A CORPORATION. The owners of shares in a corporation which has a capital stock are called stockholders. If a cor- poration has no capital stock, the corporators and their suc- cessors are called members. History: Enacted March 21, 1872. 159 §§299, 299[a] CIVIL CODE. [Div.I.Pt.IV. See Kerr's Cyc. C. C. for 19 pars, annotation. 109 C. 571, 588, 590, 42 P. 225 (referred to with other sections); 115 C. 584, 593, 56 A. S. 119, 47 P. 582, 35 L. 309 (construed and applied). As to becoming stockholders by subscription, see 26 A. S. 658, 49 A. D. 604. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to voting trust, see Kerr's Cyc. C. C. §§ 307, 312 and notes. §299. WHEN MEMKEKS DIE SUCCESSORS TO BE ELECTED (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 200. §299 [a]. COPIES OF ARTICLES MUST BE FILED IPf EVERY COUNTY WHEREIN THE CORPORATION AC- QUIRED PROPERTY, ETC. No corporation hereafter formed must purchase, locate, or hold property, in any county in this state, other than the county in which its original articles of incorporation are filed, 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, within 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 acquires 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 filed with the several county clerks, and certified copies thereof, have the same force and effect in evidence as the originals. Any cori>oration fail- ing to comply >vith the provisions of this section cannot 160 Tit.I,ch.I,art.I.] filing COPIES. §299 [a] 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 certified copy of the copy of its articles of incorporation, are filed at the places directed by the general law and this section; provided, that all corpora- tions are 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 sec- tion; 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. History: Enacted April 3, 1876, Code Amdts. 1875-6, p. 71;- amended March 23, 1878, Code Amdts. 1877-8, p. 76; April 23, 18.80, Code Amdts. 1880 (C. C. pt.), p. 13; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 344, held unconstitutional; see history, § 4 ante; amendment re-en- acted March 21, 1905, Stats, and Amdts. 1905, pp. 556-557. See Kerr's Cyc. C. C. for 21 pars, annotation. 67 C. 485, 487, 8 P. 22, 24 (certified copy of certified copy of articles of incorporation as evidence); 73 C. 599, 601, 602, 15 P. 302, 303 (pleading', by defendant corporation, that articles of incorporation have been filed, is unnecessary); 77 C. 69, 72, 18 P. 886, 888 (construed with § 2468 as to necessity of pleading- that articles of incorporation have not been filed by plaintiff corporation); 80 C. 68, 69, 71, 22 P. 66, 67 (complaint may state a cause of action, though it fails to show that plaintiff corpo- ration has complied with this section); 80 C. 333, 335, 336, 22 P. 222, 223 (failure by plaintiff corporation to coinply with section must be specially pleaded in answer); 83 C. 12, 17, 23 P. 63, 64 (section does not apply to what religioiis corporations); 97 C. 270, 274, 32 P. 231 (objection that corporation has not filed copy of its articles is waived if not objected to at trial); 108 C. 88, 90, 91, 40 P. 1061 (effect on corporation of its failure to comply with this section); 111 C. 133, 135, 137, 138, 43 P. 525 (effect of compliance, or non-compliance, with section); 120 C. 177, 178, 179, 180, 181, 52 P. 305 (failure to comply with section affects actions by or against corporation, but does not forbid them from acquiring property); 146 C. 644, 649, 651, 652, 80 P. 1080 (section is inapplicable to what corporate transaction); 147 C. 747, 753, 82 P. 426 (cited as making a distinction between the commencement of an action and its maintenance) ; 148 C. 252, Kerr's C. C. — 6 161 § 300 CIVIL CODE. [Div.I.Pt.IV. 253, 82 P. 1049 (not applicable to corporation whose original certificate of incorporation was filed prior to enactment of section); 2 A. 546, 556; 84 P. 298 (cases arising under this sec- tion distinguished. Provisions of section may be waived how). As to compliance with requirements of statute, see Kerr's Cyc. C. C. § 290 and note pars. 3-32. As to many miscellaneous iriatters affecting corporations gen- erally, see note § 283, ante. §300. CAPITAL STOCK OF BA>KING} CORPORATIONS — DIVIDENDS. Every corporation that has been or may be created under the general laws of this state, doing a banking business therein, and which has no capital stock, may elect to have a capital stock, and may issue certificates of stock therefor, in the same manner as corporations formed under the provisions of chapter one, article one, of the civil code, relating to the formation of corporations; provided, that no such corporation shall use or convert any moneys or funds theretofore belonging to it, or under its control, into capital stock; but such funds or moneys must be held and managed only for the purposes and in the manner for which they were created. Before such change is made, a majority of the members of such corporation present at a meeting called for the purpose of considering the proposition whether it is best to have a capital stock, its amount, and the number of shares into which it shall be divided, must [1] vote in favor of having a capital stock, [2] fix the amount thereof, and [3] the number of shares into which it shall be divided. Notice [a] of the time and place of holding such meeting, and [b] its object, must be given by the president of such corporation, by publication in some newspaper printed and published in the county, or city and county, in which the principal place of business of the corporation is situated, at least once a week for three successive weeks prior to the holding of the meeting. A copy of the proceedings of this meeting, giving the num- ber of persons present, the votes taken, the notice calling the meeting, the proof of its publication, the amount of capi- tal actually subscribed, and by whom, all duly certified by the president and secretary of the corporation, must be filed 162 Tit.I,ch.I,art.I.] COPY OF DECREE. § 300a in the offices of the secretary of state and clerk of the county where the articles of incorporation are filed. There- after such corporation is possessed of all the rights and powers, and is subject to all the obligations, restrictions, and limitations, as if it had been originally created with a capital stock; and provided further, that no bank in this state shall ever pay any dividend upon so-called guaranty notes, nor upon any stock, except upon the amount actually paid in money into said capital upon such stock, and any payment made in violation of this provision shall render all officers and directors consenting to the same jointly and severally liable to the depositors to the extent thereof. History: Enacted March 29, 1878, Code Amdts. 1877-8, pp. 77-78. See Kerr's Cyc. C. C. for 3 pars, annotation. 56 C. 345, 349 (referred to); 74 C. 598, 600, 602, 16 P. 497, 499 (construed and applied). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 300a. COPY OF DECREE TO BE FILED WITH SECRE- TARY OF STATE. Every corporation which has changed its name under the provisions of sections one thousand two hun- dred and seventy-five, one thousand two hundred and seventy- six, one thousand two hundred and seventy-seven, one thou- sand two hundred seventy-eight, and one thousand two hun- dred and seventy-nine of the Code of Civil Procedure, must file in the office of secretary of state and in the office of the county clerk of each county in which the original articles or certified copies thereof are required by law to be filed, a certified copy of the decree of the court changing such name. History: Enacted March 20, 1903, Stats, and Amdts. 1903, p. 256, in force March 20, 1903; amended April 16, 1909, Stats, and Amdts. 1909, p. 973. As to many niiscellaneous matters affecting corporations gen- erally, see note § 283, ante. 163 § 301 CIVIL CODE. [Div.T,Pt.IV. ARTICLE II. BY-LAWS, DIRECTORS, ELECTORS, AND MEETINGS. § 301. By-laws — [Adoption of, when, how, and by whom]. § 302. Directors, election of, etc. — [Notice]. § 303. By-laws, for what may provide. § 304. By-laws recorded and how amended. § 305. Corporate powers and business exercised by board of directors— Quorum. § 306. Election of directors and adoption of by-laws [repealed]. § 307. Election of directors, how conducted — Cumulative voting shall not be denied. § 308. Organization of board of directors, etc. — [Quorum]. § 309. Dividends from surplus profits — Penalty for violation of tliis section — Distribution of land, water, etc. § 310. Removal from office of directors, etc. § 311. Justice of peace may order meeting of corporation, when. § 312. Majority of stock must be represented at elections. § 312 [a]. [Same] — Corporations other than for profit. § 313. Stock, how represented. § 314. Election may be postponed. § 315. Complaints, quo warranto and proceedings tliereon, regarding elections — [Notice]. § 316. Damages for false entries, etc. § 317. Meeting by consent to be valid. [Written waiver.] § 318. Proceedings at meeting to be binding. § 319. Meetings, where held. § 320. When no provision in by-laws for regular meetings, spe- cial meetings, how called — [Notice]. § 321. Certain books to be open for inspection. § 321a. Cliange of principal place of business, procedure. § 321b. Stockholders' meeting, who may vote at — Proxies, void when; maximum period of; revocable. §301. BY-LAWS— [ADOPTION OF, WHEN, HOW, AND BY WHOM]. Every corporation formed under this title must, within one month after filing articles of incorporation, adopt a code of by-laws for its government not inconsistent with the constitution and laws of this state. The assent of stock- holders representing a majority of all the subscribed capital 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 164 h Tit.I,ch.I,art.II.] ELECTIONS— NOTICE. § 302 meeting called for that purpose; and in the event of such meeting being called, two weeks' notice of the same by adver- tisement 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 effectual to adopt a code of by-laws without a meeting for that purpose. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 200-201; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 344^ held uncon- stitutional; see history, § 4 ante. See Kerr's Cyc. C. C. for 46 pars, annotation. 74 C. 571, 574, 16 P. 397, 398 (construed and applied); 109 C. 571, 588, 42 P. 225 (referred to with other sections); 116 C. 410, 414, 415, 48 P. 375, 376 (construed and applied); 117 C. 157, 162, 59 A. S. 162, 48 P. 1090, 37 L. 619 (construed and applied); 145 C. 696, 702, 79 P. 441 (restriction on adoption of by-laws). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to power to adopt or make by-laws, see Kerr's Cyc. C. C. § 301, note pars. 37-42. As to reasonableness and validity of municipal ordinances, see 16 A. D. 191-198; 34 A. D. 627-643; 35 A. R. 702-703; 69 A. S. 304; 32 N. T. 261 (Ann. Ed. N. Y. Rep.); 21 Encyc. L. 976-995. As to what bj^-law may provide, see Kerr's Cyc. C. C. § 303 and note. By-law — Distinguished from ordinance. — See Kerr's Cyc. C. C. § 301, note pars. 18-22. § 302. DIRECTORS, ELECTION OF, ETC. [NOTICE.] 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 as prescribed in section three hundred one, unless all of the stockholders waive such notice in writing. Hi-story: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 345, act 165 § 303 CIVIL CODE. [Div.I,Pt.IV. held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 557; amended February 22, 1909, Stats, and Amdts. 1909, p. 48. See Kerr's Cyc. C. C. for 6 pars, annotation. 93 C. 34, 36, 28 P. 792, 29 P. 51, 15 L. 106 (referred to with other sections); 146 C. 219, 222, 79 P. 889 (construed with § 290). As to many miscellaneous matters affecting- corporations gen- erally, see note § 283, ante. As to validity, scope, effect, and construction of by-laws, see Kerr's Cyc. C. G. § 304 note par. 2. Mode of electing directors, and number of votes allowed each stockholder. — See Kerr's Cyc. C. C. § 307 and note. Postponing election. — See Kerr's Cyc. C. C. §§ 312. 314 and notes. § 303. BY-LAWS, FOR WHAT MAY PROVIDE. A corpora- tion may, bj^ its by-laws, where no otlier provision is spe- cially made, provide for: 1. The time, place, and 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, and also the time of their annual election, and the mode and manner of giving notice thereof. 5. The compensation and duties of officers. 6. The manner of election and tenure of office of all officers other than the directors; and, 7. Suitable penalties for violations of by-laws, not exceed- ing 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 adjoining county; provided, that when the by-laws prescribe the newspaper in which said publication shall be made, if from any cause at the time 166 Tit.I,ch.I,art.II.] BY-LAWS. § 303 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 records 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 201; March 19, 1889, Stats, and Amdts. 1889, p. 365; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 345, held unconstitutional; see his- tory, § 4 ante. See Kerr's Cyc. C. C. for 45 pars, annotation. 93 C. 34, 38, 39, 28 P. 792, 793, 29 P. 51, 15 L. 106 (construed and applied to election of officers); 96 C. 73, 82, 30 P. 1024, 1026 (construed and applied to directors' meetings); 104 C. 649, 653, 654, 43 A. S. 147, 38 P. 452, 29 L. 844 (construed and applied to voting- by proxy); 109 C. 571, 599, 42 P. 225, 226 (construed and applied to vote by proxy); 121 C. 202, 208, 53 P. 634 (referred to with other sections); 130 C. 345, 347, 80 A. S. 132, 62 P. 552 (referred to with other sections); 1 C. A. 189, 195, 196, 81 P. 1029 (power of corporation to enact by-laws). As to adoption of by-laws, see Kerr's Cyc. C. C. § 301 and note. As to amendment of by-laws, see Kerr's Cyc. C. C. § 304 and note. As to by-laws of benevolent corporations, see Kerr's Cyc. C. C. § 599 and note. As to lien of corporation on stock, see 11 A. D. 581; 40 A. S. 405; 43 A. S. 153; 57 A. S. 388, 25 L. 48. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to mode of filling a vacancy in the board of directors, see Kerr's Cyc. C. C. § 305 and note. As to proxies, their form, provision, as to validity, and the like, see 29 L. 844-849. As to reasonableness of amendatory or repealing by-law, see Kerr's Cyc. C. C. § 304 note par. 29. As to recording by-laws, see Kerr's Cyc. C. C. § 304 and note. As to repeal of by-laws, see Kerr's Cyc. C. C. § 304 and note. As to right to provide for issuing' stock certificates prior to their full payment, see Kerr's Cyc. C. C. § 323 and note. As to right to provide for disposition of its own stock held by the corporation, see Kerr's Cyc. C. C. § 344 and note. As to validity, scope, effect, and construction of by-law, see 85 A. D. 617-622; 43 A. S. 152-158. 167 § 304 CIVIL, CODE. [Div.I.Pt.IV. As to voting by proxy, see Kerr's Cyc. C. C. § 312 and note. Newspapers for purpose of publishing notice of meeting to adopt by-laws, see Kerr's Cyc. C. C. § 301 and note. § 304. BY-LAWS KECOKDED AND HOW AMENDED. All by-laws adopted must be [1] certified by a majority of the directors and secretary of the corporation, and [2] copied in a legible hand, in some book kept in the office of the corpora- tion, to be known as the "book of by-laws," and [3] the book must then be open to the inspection of the public during office hours each day except holidays. The by-laws may be repealed or amended, or new by-laws may be adopted, [1] at the annual meeting, or [2] at any other meeting of the stockholders or members, called for that purpose by the directors, by a vote representing two-thirds of the subscribed ^tock, or by two-thirds of the members. The written assent of the holders of two-thirds of the stock, or two-thirds of the members if there is no capital stock, is effectual to repeal or amend any by-law, or to adopt addi- tional bj^-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 similar written assent, be delegated to the board of directors. The power, when delegated, 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 must be copied in the book of by-laws with the original by-laws, and immediately after them. If any by-law is repealed, the fact of repeal, with the date of the meeting at which the repeal was enacted, or written assent was filed, must be stated in said book. Until copied or stated as herein- before required, no by-law, nor any amendment or repeal thereof, can be enforced against any person, other than the corporation, not having actual notice thereof. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 201; March 14, 1885, Stats, and Amdts. 1885, pp. 130-131; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 345, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 557. 168 Tit.I,cli.I,art.II.] CORPORATE POWERS. §305 See Kerr's Cyc. C. C. for 34 pars, annotation. 89 C. 52, 54, 26 P. 605 (referred to with other sections); (C. March 24, 1900), 60 P. 776, 777 (referred to with other sections). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to preferred stock, see Kerr's Cj'c. C. C. § 323 note pars. 4-9. §305. CORPORATE POWERS AND BUSINESS EXER- CISED BY BOARD OF DIRECTORS— QUORUJffi. The corpo- rate powers, business, and property of all corporations formed under this title must be exercised, conducted, and controlled by a board of not less than three directors, to be elected from among the holders of stock; or where there is no capital stock, then from the members of such corporations; except that corporations formed or to be formed for the purpose of- erecting and maiiagiug halls and buildings for the meetings and accommodation of several lodges or societies of any benevolent or charitable order or organization, and in connec- tion therewith, the leasing of stores and offices in such build- ing 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 three or more than fifty directors, to be chosen from among the stockhold- ers of such corporation or from among the members of such order or organization. A majority of the directors must be in all cases residents of this state. Directors of corporations for profit must be holders of stock therein to 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 per- formed 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 appointee of the board. History: Enacted March 21, 1872; amended January 20, 1876, Code Arndts. 1875-6, p. 71; March 15, 1901, Stats, and Amdts. 1900-1, pp. 308-309; amended by Code Commission, Act March 20, 1905, Stats, and Amdts. 1905, p. 503, by changing number of directors from five to three (and negligently omitting an "of"). 169 §§ 306, 307 CIVIL CODE. [Div.T,Pt.TV. See Kerr's Cyc. C. C. for 17 pars, annotation. 78 C. 629, 632, 21 P. 373, 374 (referred to with other sections); 81 C. 231, 234, 22 P. 654 (referred to in discussion); 93 C. 34, 36, 39, 28 P. 792, 793, 29 P. 51, 15 L. 106 (referred to with other sections); 94 C. 546, 549, 29 P. 1105, 1106 (construed and ap- plied); 111 C. 114, 116, 43 P. 585 (construed and applied); 118 C. 131, 138, 50 P. 269 (referred to with other sections); 121 C. 202, 208, 53 P. 634 (construed and applied); 126 C. 413, 417, 58 P. 914 (construed and applied): 127 C. 261, 267. 269, 270, 59 P. 563 (construed and applied); 127 C. 630, 636, 637 (construed and applied— erroneously cited as C. C. P.); 60 P. 424, 426 (cor- rectly cited); 130 C. 345, 347, 349, 351, 80 A. S. 132, 62 P. 552, 553 (construed and applied); 132 C. 637, 652, 61 P. 791, 64 P. 1082, 52 L. 611 (construed and applied in dis. op.); 146 C. 219, 222, 79 P. 889 (what construction would set at naught many pro- visions of the code); 45 F. 518, 526 (referred to with other sec- tions). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Code Commission has needlessly bungled and confused by introducing in a very disjointed shape the main provisions in this section into par. 5, § 290 ante. §306. ELECTION OF IHKECTOKS AM) ADOPTION OF BY-LAWS (repealed). History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 202; repealed March 19, 1889, Stats, and Amdts. 1889, p. 365. § 307. ELECTIONS OF DIRECTORS, HOW CONDUCTED— CUMULATIVE VOTING SHALL NOT BE DENIED. All elec- tions must be by ballot, and every stockholder 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 mul- tiplied 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 think fit. The provisions of this sec- tion, so far as it relates to cumulative voting, shall apply to all corporations and associations doing business in this state, having a capital stock or shares of stock, and electing direc- 170 Tit.I,ch.I,art.II.] ORGANIZING BOARD. §308 tors by a meeting of stockholders held in this state, whether such corporations or associations are organized under the laws of this state or not, and no election for directors of any corporation or association, doing business in this state, and electing directors in this state, shall be valid, if the right of a stockholder to cumulate his shares as herein provided shall be denied. In corporations 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 the candidates. In any case the director receiving the highest number of votes shall be declared elected. [Cumulative voting not applicable, when.] The provisions of this section, so far as it relates to cumulative voting, shall not apply to literary, religious, scientific, social or benevolent societies, having no capital stock or shares unless it shall be so provided in their by-laws or rules. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 202; Feb. 1, 1878, Code Amdts. 1877-8, p. 78; March 10, 1887, Stats, and Amdts. 1887, p. 95; March 20, 1903, Stats, and Amdts. 1903, p. 253. See Kerr's Cyc. C. C. for 14 pars, annotation. 93 C. 34, 36, 37, 28 P. 792, 29 P. 51, 15 L. 106 (construing- term "election"); 103 C. 357, 363, 35 P. 1045, 37 P. 207 (construed and applied); 109 C. 571, 589, 42 P. 225 (construed and applied), 597 (has no application to vote, under § 359, for creation of bonded indebtedness); 115 C. 584, 590, 609 (construed with §312), 609 (construed in dissenting- opinion), 56 A. S. 119, 47 P. 582, 35 L. 309; 127 C. 681, 683, 60 P. 438 (construed with §312). As to many miscellaneous matters affecting- corporations gen- erally, see note § 283, ante. Voting trust. — See Kerr's Cyc. C. C. § 312 and note par. 16. §308. ORGAMZATION OF BOARD OF DIRECTORS, etc.— [QUORUM.] Immediately after their election, the directors must organize by the election of a president, who must be one of their number, a secretary, and treasurer. They must perform the duties enjoined on them by law and the by-laws of the corporation. 171 § 309 CIVIL CODE. [Div.I.Pt.IV. [Quorum.] A majority of the directors is a sufficient num- ber to form a board for the transaction of business, and every decision of a majority of the directors forming such board, made when duly assembled, is valid as a corporate act. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 78 C, 289, 292, 12 A. S. 53, 20 P. 677 (construed and applied): 78 C. 629, 632, 21 P. 373 (construed); 93 C. 34, 38 (construed). 39 (referred to with other sections), 28 P. 792, 793, 29 P. 51, 15 L. 106; 94 C. 546, 549, 29 P. 1105, 1106 (construed); 96 C. 73, 82, 30 P. 1024, 1026 (construed); 103 C. 357, 363, 35 P. 1045, 37 P. 207 (referred to with other sections); 121 C. 202, 208, 53 P. 634 (construed and applied to president); 127 C. 261, 267, 268, 59 P. 563 (construed and applied); 127 C. 630, 631, 637 (applied — erro- neously cited as C. C. P. § 305, concerning the filling of vacan- cies in board of directors), 60 P. 424, 426 (correct citation); 60 P. 776, 778, Cal., March 24, 1900 (construed and applied); 61 P. 791, 795, Cal., July 2, 1900 (vote essential to adoption of reso- lution); 130 C. 345, 348, 349, 80 A. S. 132, 62 P. 552 (construction of this section and §305, how limited); 131 C. 656, 659, 63 P. 1011 (referred to with other sections); 145 C. 352, 364, 104 A. S. 42, 78 P. 550 (president of corporation is necessarily a director thereof); 45 F. 526. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Authority of officers. — See Kerr's Cyc. C. C. § 305 and note. Quorum of directors. — See Kerr's Cyc. C. C. § 305 and note. §309. DIVIDENDS FROM SURPLUS PROFITS— PEN- ALTY FOR VIOLATION OF THIS SECTION— DISTRIBU- TION OF LAND, WATER, ETC. The directors of corpora- tions [1] must not make dividends, except from the surplus profits arising from the business thereof; [2] nor must they create any debts beyond their subscribed capital stock; [3] nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock, except as here- inafter provided, [4] nor reduce or increase the capital stock, except as herein specially provided. For a Tiolatioii of the provisions of this section, the direc- tors under whose administration the same may have hap- pened (except those who may have caused their dissent there- from to be entered at large on the minutes of the directors at 172 i Tit.I,ch.I,art.II.] dividends from surplus. § 309 the time, or were not present when the same did happen) are, in their individual or private capacity, jointly and severally liable to the corporation, and to the creditors thereof, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt contracted; and no statute of limita- tion is a bar to any suit against such directors for any sums for which they are liable by this section; [Land and water companies.] Provided, however, that where a corporation has been heretofore or may hereafter be formed for the 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 stock- holders representing two-thirds of the capital stock thereof, given at a meeting called for that purpose, divide among, the stockholders the land, water, or water rights so by such corporation held, in the proportions to which their holdings of such stock at the time of such division entitle them. All conveyances made by the corporation in pursuance of this section must be made and received subject to the debts of such corporation existing at the date of the conveyance thereof. Nothing herein prohibits a division and distribution of the capital stock of any corporation which remains after the payment of all its debts, upon its dissolution, or the expi- ration of its term of existence. History: Enacted March 21, 1872; amended March 31, 1891, Stats, and Amdts. 1891, p. 468; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 346, held uncon- stitutional; see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 558. See Kerr's Cyc. C. C. for 27 pars, annotation. 57 C. 594, 602 (referred to with other sections); 81 C. 378, 384, 387, 396, 397 (construed), 389 (referred to), 390 (construed in dis. op.), 20 P. 401, 403, 22 P. 689. 693, 6 L. 520; 90 C. 131, 135, 136, 139, 140 (construed and applied to surplus), 141, 142 (ap- plied to mines), 27 P. 44, 46; 93 C. 300, 309, 310, 311, 28 P. 1049, 1051 (construed and applied); 109 C. 571, 596, 42 P. 225 (con- strued and applied); 116 C. 410, 415, 48 P. 375, 376 (construed and applied); 51 P. 710, 714 (validity of bonds issued in viola- tion of section), 723, 724, in opinion for reversal (proper use of phrase, "subscribed capital stock"); 124 C. 147, 149, 71 A. S. 173 § 310 CIVIL CODE. [Div.I.Pt.IV. 36, 56 P; 787, 788, 45 L. 863 (construed); 125 C. 407, 412, 58 P. 85 (construed with otlier sections); 127 C. 669, 674, 60 P. 439, 49 L. 647 (referred to with other sections); 135 C. 472, 482, 63 P. 1025, 67 P. 759 (construed and applied); 151 C. 118, 122, 90 P. 521 (corporation may make a sale to a stockholder); 152 C. 454, 462, 92 P. 1030 (application of section to the making of dividends). As to many miscellaneous matters affecting corporations gen- erally, foe note § 283, ante. Definition of phrase "create debts," within moaning of tliis section, is discussed, Kerr's Cyc. C. C. § 579 and note, also, 2 W. & P. 1708. §310. REMOVAL FROM OFFICE OF DIRE( TORS, ETC. The board of directors may be removed from office by a vote of two-thirds of the members, or of stockholders holding two- thirds of the capital stock, at a general meeting held after previous notice of the time and place, and of the intention to propose such removal. Meetings of stockholders for this pur- pose 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 meeting, and by whose order it is called. If the secretary refuses 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 notice, in which case it must specify the time and place of meeting. The notice must be given in the manner provided in section three hundred and one of this title, unless other express provision has been made therefor in the by-laws. In case the board of directors is so removed, a new board may be elected at the same meeting. History: Enacted March 21, 1872: amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 347, held unconstitutional; see history, § 4 ante: amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, pp. 558, 559. See Kerr's Cyc. C. C. for 5 pars, annotation. 97 C. 610, 630, 32 P. 600, 605 (cited in discussion). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 174 Tit.I,ch.I,art.II.] ORDERING election. §§ 311, 312 §311. JUSTICE OF PEACE MAY ORDER MEETING OF CORFORATIOX, WHEN. Whenever, from any cause, there is no person authorized to call or to preside at a meeting 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, direct- ing 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 officer present legally authorized to preside thereat. The application of a number of stockholders less than three, but holding a major- ity of the capital stock, has the same effect as an application by three or more stockholders or members. History: Enacted March 21, 1872; amended by Code Commis- sion, Act. March 16, 1901, Stats, and Amdts. 1900-1, p. 347, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 559. §312. MAJORITY OF STOCK MUST BE REPRESENTED AT ELECTIONS. At all elections or votes had for any pur- pose in corporations formed for profit there must be a major- ity of the subscribed capital stock or of the members repre- sented, either in person or by proxy in writing; provided, that in all instances of corporations formed for purposes other than profit the by-laws shall provide the number of members or stockholders that shall constitute a quorum for the transaction of business. Every person acting therein, in person or by proxy or representative, must be a member thereof or a 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 accord- ance with the provisions of this article is voidable at the instance of absent or any stockholders or members, and may be set aside by petition to the superior court of the county where the same is held. [Meeting may adjourn from day to day.] Any regular or 175 §312[a] CIVIL CODE. [Div.I,Pt.IV. called meeting of the stockholders or members may adjourn from day to day, or from time to time, if for any reason there is not present a majority of the subscribed stock or members, or no election had, such adjournment and the reasons therefor being recorded in the journal of proceedings of the board of directors. History: Enacted March 21, 1872; amended April 1, 1878, Code Amdts. 1877-8, p. 79; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 347, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, c. CDXVI, p. 559. A further amendment by the Legislature of 1905, on following day (March 22), appears in "note" below; amendment enacted March 18, 1907, Stats, and Amdts. 1907, p. 596, Kerr's Stats, and Amdts. 1906-7, p. 403. Note: Section 312 was amended March 21, 1905, and also on March 22, 1905, numbered respectively § 312 and § 312[a] in this Code. The Legislature of 1907 repealed § 312 as amended March 21, 1905, and amended § 312[a] as above, and numbered it §312. See Kerr's Cyc. C. C. for 16 pars, annotation. 54 C. 149, 150 (erroneously cited as C. C. P.); 67 C. 532, 533, 534, 536, 8 P. 70 (construed and applied); 93 C. 34, 36, 39, 28 P. 792, 29 P. 51, 15 L. 106 (construed and applied); 103 C. 357, 363, 35 P. 1045, 37 P. 207 (referred to with other sections); 104 C. 649, 651, 652, 43 A. S. 147, 38 P. 452, 29 L. 844 (construed and applied); 109 C. 571, 588, 599, 42 P. 225, 226 (construed and applied); 112 C. 53, 63, 44 P. 333, 33 L. 788 (construed and ap- plied); 115 C. 584, 589, 590, 594, 609, 56 A. S. 119, 47 P. 582, 35 L. 309 (construed and applied); 127 C. 681, 683, 60 P. 438 (con- strued with §307); 133 C. 42, 47, 65 P. 131, 576 (miscited) ; 146 C. 219, 224, 79 P. 889 (criterion under section for determining amount of stock held by any person, and for which he is en- titled to cast a vote); 23 Nev. 437, 49 P. 41, 47 (voidable election under this section is valid in another state until declared void by the courts of California). As to adjournment of meetings, see post § 314. As to many miscellaneous luatters affecting corporations gen- erally, see note § 283, ante. §312[a]. [SAME]— CORPORATIONS OTHER THAN FOR PROFIT. At all elections or votes had for any purpose in corporations formed for profit there must be a majority of the subscribed capital stock or of the members represented, 176 Tit.I,ch.I,art.II.] REPRESENTING STOCK. §§313,314 either in person or by proxy in writing; provided, that in all instances of corporations formed for purposes other than profit the by-laws shall provide the number of members or stockholders that shall constitute a quorum for the transac- tion of business. 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 instance of absent (or any) stockholders or members, and may be set aside by petition to the superior court of the county where the same was held. Any regular or called meeting of the stockholders or members may adjourn from day to day, or from time to time, if for any reason there is not present a majority of the subscribed stock or members, or no election had, such adjournment and the reasons therefor being recorded in the journal of proceedings of the board of direc- tors. History: Enactments and amendments recited in section above. This amendment, March 22, 1905, Stats, and Amdts. 1905, p. 787. See history and "note" to § 312. § 313. STOCK, HOW EEPRESEXTED. The shares of stock of an estate of a minor, or insane person, may be represented by his guardian, and of a deceased person by his executor or administrator. History: Enacted March 21, 1872; amended March 31, 1874, Code Amdts. 1873-4, p. 203. See Kerr's Cyc. C. C. for 2 pars, annotation. 109 C. 571, 590, 42 P. 225, 226 (construed and applied); 115 C. 584, 590, 591, 56 A. S. 119, 47 P. 582, 35 L. 309 (construed and applied). As to many miscellaneous matters affecting- corporations gen- erally, see note § 283, ante. §314. ELECTION MAT BE POSTPONED. If from any cause an election does not take place on the day appointed by law or the by-laws, or otherwise, it may be held on any 177 § 315 CIVIL CODE. [Div.I.Pt.IV. day thereafter as is provided for in such by-laws, or to which such election may be adjourned or ordered by the directors. If an election has not been held at the appointed 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 three hundred and ten. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 348, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 559. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §315. COMPLAINTS, QUO WAKIUNTO AND PROCEED- INGS THEREON, REGARDING ELECTIONS— [NOTICE]. Upon the application of any person or body corporate aggrieved by any election held by any corporate body, the superior court of the county 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 com- plaint, and thereupon confirm the election, order a new one, or direct such other relief in the premises as accords with right and justice. [Notice.] Upon filing the petition, and before any further proceedings 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 party, or those to be affected thereby. History: Enacted March 21, 1872; amended April 1, 1878, Code Amdts. 1877-8, p. 79; amended by Code Commission, Act -March 16, 1901, Stats, and Amdts. 1900-1, p. 248, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 560. See Kerr's Cyc. C. C. for 11 pars, annotation. 93 C. 34, 35, 36, 39, 28 P. 792, 793, 29 P. 51, 15 L. 106 (con- strued and applied); 93 C. 41, 42, 28 P. 793 (applied); 98 C. 304, 305, 306, 33 P. 123 (applied); 103 C. 357, 360, 364, 35 P. 1045, 37 P. 207 (construed and applied); 115 C. 279, 281, 47 P. 58 (re- ferred to); 115 C. 584, 587 (referred to in statement of facts), 178 Tit.I,ch.I,art.II.] MEETING BY CONSENT. §§316,317 594 (referred to in discussion), 609 (referred to in dis. op.), 56 A. S. 119, 47 P. 582, 35 L. 309; 126 C. 67, 72, 58 P. 376 (con- strued); 23 Nev. 437, 49 P. 41, 47 (applicability of §§312, 315, to mining- corporations, and remedy under latter section is avail- able only when a vote or election has been had). As to many miscellaneous matters affecting- corporations generally, see note § 283, ante. § 316. DAMAGES FOR FALSE ENTRIES, ETC. Any officer of a corporation who wilfully gives [1] a certificate, or [2] wilfully makes an official report, [3] public notice, or [4] entry in any of the records or books of the corporation, con- cerning 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 sev- erally liable. History: Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 203. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Penal liability of ofHcers. — See Kerr's Cyc. Pen. C. §§ 558, 564 and notes. §317. MEETING BY CONSENT TO BE VALID. [WRIT- TEN WAIVER.] When all the stockholders or members of a corporation are present at any meeting however called or notified, and sign a written consent thereto on the records of such meetings, or if those not present sign in writing a waiver of notice of such meeting, which waiver is presented and made a part of the records of such meeting, the doings of such meeting are as valid as if had at a meeting legally called and noticed. History: Enacted March 21, 1872; amended February 22, 1909, Stats, and Amdts. 1909, p. 49. 51 P. 710, 713, Cal., Dec. 28, 1897 (cited, as to what constitutes a valid meeting of stockholders). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 179 §§ 318-320 CIVIL CODE. [Div.I,Pt.IV. § 318. PROCEEDINGS AT MEETING TO BE BINDING. The stockholders or members of such corporation, when so assem- bled, may elect officers to fill all vacancies then existing, and may act upon such other business as might lawfully be trans- acted at regular meetings of the corporation. History: Enacted Marcli 21, 1872. As to many nii.scellaneous matters affecting- corporations gen- erally, see note § 283, ante. §319. MEETINGS, WHERE HELD. The meetings of the stockholders and board of directors of a corporation must be held at its office or principal place of business. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Change of place of business. — See Kerr's Cyc. C. C. § 321a and note. §320. WHEN NO PROVISION IN BY-LAWS FOR REGU- LAR MEETINGS, SPECIAL MEETINGS, HOW CALLED. When no provision is made in the by-laws for regular meet- ings 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 order of the president, or if there be none, on the order of two directors. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 59 C. 678, 681, 682 (construed and applied); 76 C. 153, 154, 9 A. S. 187, 18 P. 153 (applied to adjourned meeting); 96 C. 73, 79, 82, 30 P. 1024 (construed and applied); 109 C. 1, 9, 10, 41 P. 809 (construed and applied); 130 C. 345, 347, 80 A. S. 132, 62 P. 552 (construed and applied); 134 C. 175, 177, 66 P. 220 (con- strued and applied); 146 C. 699, 705; 81 P. 17 (sufficiency of written notice for special meeting). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 180 Tit.I,ch.I,art.II.] BOOKS, INSPECTION. §§321, 321a § 321. CERTAIN BOOKS TO BE OPEN FOR INSPECTION. Every corporation doing a banking business in this state must keep in its office, in a place accessible to the stockhold- ers, depositors, and creditors thereof, and for their use, a book containing a list of all stockholders in such corporation, and the number of shares of stock held by each, and every such corporation must keep posted in its office, in a conspicu- ous place, accessible to the public generally, a notice, signed by the president or secretary, showing: 1. The names of the directors of such corporation. 2. The number and value of shares of stock held by each director. The entries on such book and such notice 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 apply to all bank- ing 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 such time. History: Enacted Jan. 29, 1876, Code Amdts. 1875-6, p. 72. See Kerr's Cyc. C. C. for 3 pars, annotation. 63 C. 261, 267 (cited in dis. op.); 89 C. 52, 54, 26 P. 605 (referred to); 140 C. 103, 105, 98 A. S. 17, 73 P. 734 (construed and ap- plied). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §321a. CHANGE OF PRINCIPAL PLACE OF BUSINESS, PROCEDURE. Every corporation that has been or may be created under the general laws of this state may change its principal place of business from one place to another in the same county, or from one city or county to another city or county within this state. Before such change is made, the Consent in writing, of the holders of two-thirds of the cap- ital stock of the corporation must be obtained and filed in its office. When such consent is obtained and filed, notice of the intended renioyal or change must be published, at least once 181 § 321b CIVIL CODE. [Div.I,Pt.IV. a week, for three successive weeks, in some newspaper pub- lished in the county wherein said principal place of business is situated, if there is one published therein; if not, in a newspaper of an adjoining county, giving the name of the county or city where it is situated and that to which it is intended to remove it. [Copy of resolution, etc., to be filed.] Whenever any such change is made, a copy of the resolution or action of the board of directors authorizing the same together with a copy of an affidavit of the publication above required, all duly cer- tified by the president and secretary of the corporation with the corporate seal affixed shall be filed in each office where the original articles of incorporation are, or any copy thereof is required to be filed. [Removal of location in same town.] This section shall not be construed to require such consent, notice or publica- tion in the case of any such removal from one location to another in the same city, town or village. HLstory: Enacted April 3, 1876 (as § 321), Code Amdts. 1875-6, p. 73; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 348, held unconstitutional; see history, § 4 ante; re-enacted March 20, 1903, Stats, and Amdts. 1903, p. 254. 89 C. 52, 54, 26 P. 605. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Corporation can not change its citizenship or residence. — See Kerr's Cyc. C. C. § 321a, note. §321b. STOCKHOLDERS' MEETINGS, WHO MAY VOTE AT— PROXIES, VOID WHEN; MAXI3IUM PERIOD OF, REVOCABLE. At all meetings of stockholders of corpora- tions organized under the laws of this state, or in the case of corporations having no capital stock, then at all meetings of the members of such corporation, only the stockholders or members actually present shall be entitled to vote on any proposition, including the election of directors and other officers of the corporation, unless proxies from absent or non- attending stockholders or members shall be held by some per- 182 Tit.I,Cll.I,art.II.] VOTING— PROXIES. § 321b son or persons present at such meeting and shall be executed in accordance with the provisions of this section. [Essentials to Talidity of proxy.] Every such proxy must be executed in writing by the member or stockholder himself, or by his duly authorized attorney. No proxy heretofore given or made shall be valid after the expiration of eleven months from the passage of this act, unless the member or stock- holder executing it shall have specified therein the length of time for which such proxy is to continue in force, which must be for some limited period, and in no case exceed seven years from the date of the execution of such proxy. No proxy hereafter to be given or made shall be valid after the expiration of eleven months from the date of its execution, unless the member or stockholder executing it shall have specified therein the length of time for which such proxy is to continue in force, which must be for some limited period, and in no case to exceed seven years from the date of the execution of such proxy. , Erery proxy shall be revocable at the pleasure of the per- son executing it; but a corporation having no capital stock may prescribe in its by-laws the persons who may act as proxies for members, and the length of time for which such proxies may be executed. History: Enacted Feb. 27, 1905, Stats, and Amdts. 1905, p. 22. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 183 § 322 CIVIL CODE. [Div.I,Pt.IV. CHAPTER II. CORPORATE STOCK. Article I. Stock and Stockholders, §§ 322-329. II. Assessment of Stock, §§ 331-349. ARTICLE I. STOCK AND STOCKHOLDERS. §322. Liability of stockholders; released when; how deter- mined; trust fund not liable; stock held as collateral. § 323. Certificates of stock, how issued. § 324. Shares of stock, personal property — How transferred — [Water companies — Stock appurtenant to land]. § 325. Married woman may transfer stock; dividends paid to her; her proxy. § 326. Affidavit or bond may be required before transfer. § 327. Contracts to relieve directors from liabilities fixed by constitution void. § 328. Lost, etc., certificate; action for new certificate; parties; procedure. § 329. Burned bonds, procedure to obtain duplicates. §322. LIABILITY OF STOCKHOLDERS; RELEASED WHEN; HOW DETER.IIINEH; TRIST FUXD >0T LIABLE; STOCK HELD AS COLLATERAL. Each stockholder of a corporation is individually and personally liable for such proportion of all its debts and liabilities contracted or incur- red during the time he was a stockholder as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation. Any creditor of the corporation may institute joint or sev- eral actions against any of its stockholders, for the propor- tion of his claim payable by each, and in such action the court must [1] ascertain the proportion of the claim or debt for which each defendant is liable, and [2] a several judgment must be rendered against each, in conformity therewith. If any stockholder pays his proi>ortion of any debt due from the corporation, incurred while he was such stockholder, 184 Tit.I,ch.II,art.I.] STOCKHOLDERS. § 322 he is relieved from any further personal liability for such debt, and if an action has been brought against him upon such debt, it must be dismissed, as to him, upon his paying the costs, or such proportion thereof as may be properly chargeable against him. The liability of each stockholder is deterniiued 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, applies not only to such persons as appear by the books of the corpora- tion to be such, but also to every equitable owner of stock, although the same appears on the books in the "name of another; and also to every person who has advanced the instalments or purchase money of stock in the name of a minor, so long as the latter remains a minor; and also to every guardian, or other trustee, who voluntarily invests any trust funds in the stock. Trust funds in the hands of a guardian, or trustee, are not liable under the provisions of this section, by reason of any such investment; nor must the person for whose benefit the investment is made be responsible in respect to the stock until he becomes -competent and able to control the same; but the responsibility of the guardian or trustee making the investment continues until that period. Stock held as collateral security, or by a trustee, or in any other representative capacity, does not 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 proportion of the debts or liabilities of the corpo- ration; but the pledgeor, or person or estate represented, is to be deemed the stockholder, as respects such liability. In a corporation having no capital stock, each member is individually and personally liable for an equal share of its debts and liabilities, and similar actions may be brought against him, either alone or jointly with other members, to enforce such liability as by this section may be brought 185 § 322 CIVIL CODE. [Div.I.Pt.IV. against one or more stockholders, and similar judgments may be rendered. [Foreign corporations — Liability of stockliolders.] The liability of each stockholder of a corporation formed vmder the laws of any other state or territory of the United States, or of any foreign country, and doing business within this state, is the same as the liability of a stockholder of a corpo- ration created under the constitution and laws of this state. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 203; March 15, 1876, Code Amdts. 1875-6, p. 73; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 349, held unconstitutional; see history, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 396. See Kerr's Cyc. C. C. for 118 pars, annotation. 59 C. 107, 109, 110 (construed and applied); 59 C. 285, 286 (construed and applied); 62 C. 448, 461 (construed and applied); 64 C. 117, 121, 28 P. 110, 112 (construed and applied); 64 C. 287, 288, 289, 30 P. 820 (construed and applied); 65 C. 193, 210, 3 P. 661, 802 (referred to); 87 C. 29, 31 (cited), 32 (construed), 25 P. 752, 753, 95 C. 578, 580, 30 P. 777 (construed); 95 C. 581. 589, 29 A. S. 158, 27 P. 674, 675, 30 P. 776 (construed and ap- plied); 97 C. 93, 95, 33 A. S. 163, 31 P. 846, 847 (construed and applied); 32 P. 756, 758 (stockholder's individual liability, under the California statute, may be enforced by a common-law ac- •tion in the courts of Oregon, when); 99 C. 89, 92, 37 A. S. 32, 33 P. 737 (construed and applied); 107 C. 378, 381, 40 P. 495 (construed); 107 C. 446, 447, 48 A. S. 145, 40 P. 557 (construed and applied); 108 C. 1, 4, 5, 40 P. 1077 (construed and applied): 109 C. 571, 588, 42 P. 225 (referred to); 111 C. 57, 63 (referred to), 66 (construed and applied), 52 A. S. 149, 43 P. 418; 113 C. 21, 25, 45 P. 12 (referred to); 115 C. 380, 381, 47 P. 108 (construed and applied); 115 C. 584, 594, 56 A. S. 119, 47 P. 582, 35 L. 309 (referred to with other sections); 116 C. 382, 384, 48 P. 322 (quoted); 118 C. 274, 276, 50 P. 430 (construed and applied); 122 C. 669, 672, 673, 674, 55 P. 689, 691 (construed and applied); 124 C. 147, 150, 71 A. S. 36, 56 P. 787, 45 L. 863 (construed and applied); 125 C. 6, 8, 73 A. S. 17, 57 P. 664 (construed and ap- plied); 125 C. 407, 412, 58 P. 85 (construed); 127 C. 72, 82, 59 P. 319 (construed); 127 C. 669, 675, 60 P. 439, 49 L. 647 (con- strued and applied); 130 C. 272, 274, 62 P. 510 (applied); 133 C. 506, 507, 65 P. 1039 (applied); 136 C. 510, 513, 69 P. 257 (ap- plied); 140 C. 103, 104, 105-107, 98 A. S. 17, 73 P. 734 (construed and applied to pledgees); 141 C. 221, 227, 74 P. 754 (applied to 186 « Tit.I,ch.II,art.I.] certificates. § 323 expenses of water system); 142 C. 383, 384, 77 P. 939 (stock- holder's individual liability is created by the constitution); 145 C. 696, 710, 79 P. 441 (what payments to creditors cannot be considered as payments made upon capital stock); 147 C. 571, 575, 82 P. 248 (construed, who is liable as a stockholder, where his name appears on the books as such); 2 C. A. 122, 131 (case f distinguishable from that of statutory liability of stockholder), 134, 138, 139 (creditor's right to maintain action, both at law and in equity), 83 P. 62, 2 C. A. 445, 447, 84 P. 329 (section deals with what liability only); 4 C. A. 291, 293, 87 P. 630 (complaint against stockholders is fatally defective when) ; 4 C. A. 690, 693, 88 P. 1098 (section has no application to action by corpo- ration to recover assessments); 5 F. 403, 410, 412 (cited as to limit of liability of stockholders — erroneously cited as C. C. P.); 37 F. 394, 404, 405 (construed with other sections, and with § 36 of the old constitution, as to personal liability of stock- holders) ; 46 F. 357, affirmed in 50 F. 260 (applied to a bill of exchange drawn by the corporation); 69 F. 25, 44 (has no ap- plication to contracts made before its passage); 183 U. S. 144, 146, 46 L. ed. 125 (referred to). As to amount claimed determining jurisdiction, see 1 Encyc. P. 703, tit. "Amount in controversy." As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Limitations of actions. — See Kerr's Cyc. C. C. P. § 338 subd. 1, § 359 and notes. Limitation of action to enforce stockholder's liability. — See Kerr's Cyc. C. C. P. § 338 subd. 1, and § 359 and notes. §323. CERTIFICATES OF STOCK, HOW ISSUED. 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 full payment, under such restrictions and for such purposes as their by-laws may provide, but any certificate issued prior to full payment must show on its face what amount has been paid thereon. All certificates of stock issued by corporations authorized by their articles of incorporation to issue stocks of different classes, shall express upon their face the char- acter of stock represented by said certificates. The said cer- tificates shall also state the number of shares of stock of each class which said corporation is authorized to issue, and the said certificates shall also contain a statement of the nature and extent of the preference granted to the preferred stock. 187 § 324 CIVIL CODE. [Div.I.Pt.TV. History: Enacted 1S72; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 350, held unconstitu- tional; see history, § 4 ante; amendment re-enacted March 20, 1905, Stats. Amdts. 1905, p. 397; amended March 18, 1907, Stats, and Amdts. 1907, p. 348, Kerr's Stats, and Amdts. 1906-7, p. 403. See Kerr's Cyc. C. C. for 10 pars, annotation. 82 C. 600, 602, 603, 23 P. 134, 135 (construed and applied); 9G C. 322, 329, 330, 31 P. 100, 102 (construed and applied); 101 C. 70, 79, 35 P. 349 (construed and applied); 135 C. 579, 583, 87 A. S. 143, 67 P. 1057, 56 L. 728 (cited in discussion); 2 C. A. 122, 130 (what agreement indicates tliat stock was issued as paid- up stock), 131 (case distinguished from that of statutory lia- bility of stockholder), 83 P. 62. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §324. SHAKES OF STOCK PERSONAL PROPERTY; HOW TRANSFERRED. Whenever the capital stock of any corporation is divided into shares, and certificates therefor are issued, such shares of stock, except as liereiuafter pro- vided, are personal property, and may be transferred by indorsement by signature of the proprietor, his agent, attor- ney, or legal representative, and the delivery of the certifi- cate; but such transfer is not valid, except as to the parties 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 designation of the shares, and the date of the transfer ; [Water companies — Stock appurtenant to land.] Provided, however, that any corporation organized for, or engaged in the business of selling, distributing, supplying, or delivering water for irrigation purposes or for domestic use, may in its by-laws provide that water shall only be sold, distributed, supplied, or delivered to owners of its capital stock, and that such stock shall be appurtenant to certain lands when the same are described 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 188 Tit.I,Cll.II,art.I.] SHARES OF STOCK. § 324 stock so located on any land shall only be transferred with said lands, and shall pass as an appurtenance thereto. When- ever any officer of any corporation shall refuse to make entries upon the books thereof, or to transfer stock therein, or to issue a certificate or certificates therefor to the trans- feree as provided by this and the next preceding section, such officer shall be subject to a penalty of four hundred dollars, to be recovered as liquidated damages, in an action brought against him by the person aggrieved. History: Enacted March 21, 1872; amended March 26, 1895, Stats, and Amdts. 1895, p. 118; amended March 22, 1907, Stats, and Amdts. 1907, p. 854, Kerr's Stats, and Amdts. 1906-7, p. 404. This section traceable to Act April 22, 1850, § 12, (5 C. 186, 187, 63 A. D. 117; 53 C. 428, 431); the Act of 1853 did not substantially alter § 12 (6 C. 425, 429); as to effect of amendatory act of 1854 (p. 84) see 9 C. 112, 114. Wisconsin adopted their statute from tlais section of tlie code. —See 51 Wis. 519, 8 N. W. 419, 420, 421. See Kerr's Cyc. C. C. for 98 pars, annotation. 53 C. 428, 431, 432 (applied and construed); 58 C. 426, 428 (construed and applied); 63 C. 359, 364 (construed and applied); 72 C. 5, 9, 1 A. S. 17, 12 P. 801, 802 (cited in discussion); 79 C. 323, 331, 12 A. S. 145, 21 P. 852, 855, 5 L. 233 (construed and ap- plied); 82 C. 600, 603, 23 P. 134, 136 (referred to in discussion); 84 C. 131, 137, 18 A. S. 166, 24 P. 436, 437, 11 L. 125 (applied and construed); 108 C. 490, 493, 41 P. 487 (erroneously referred to instead of §334); 109 C. 630, 632, 42 P. 298 (applied); 113 C. 272, 273, 276, 277, 278, 54 A. S. 348, 45 P. 329, 33 L>. 459 (construed and applied); 126 C. 531, 534, 59 P. 30 (construed and applied); 134 C. 408, 410, 411, 66 P. 494 (construed and applied); 136 C. 510, 513, 69 P. 257 (referred to with other sections); 141 C. 13, 16, 74 P. 299 (provision as to entry of transfer on books is not applicable when); 147 C. 236, 240, 242, 81 P. 539 (construed and applied to shares in a water company); 150 C. 106, 108, 109, 110, 88 P. 280 (construed and applied, showing that liability is limited to registered owner); 2 C. A. 122, 131, S3 P. 62 (cited, directors thougli trustees, may act in double capacity when); 37 F. 394, 407 (cited, as to wlio naust be deemed owner of stock). As to lost certificate and procediire to secure issuance of a new one, see post § 328. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Bond may be required of non-resident stockholder by corpo- 189 §§ 325, 326 CIVIL CODE. [Div.I.Pt.IV. ration before entering- transfer of shares on its books. — See •Kei-r's Cyc. C. C. § 326 and note. By-laws providing- for lien upon stock. — See Kerr's Cyc. C. C. § 354 and note. Gift of corporate stock. — See Kerr's Cyc. C. C. § 1146 and note. § 325. MARKIED WOMAN MAY TRANSFER STOCK; DIV- IDENDS PAID TO HER; HER PROXY. Shares of stock in corporations standing on the books of the corporation in the name of a married woman may be transferred by her, her agent or attorney, without the signature of her husband, and in the same manner as if such married woman were a feme sole. All dividends payable upon any of such shares of stock may be paid to her, her agent or attorney, in the same man- ner as if she were unmarried; and any proxy or power given by her, touching any of such shares, is valid and binding, and neither it nor any receipt for dividends need be signed by her husband. History: Enacted Marcli 21, 1S72; amended by Code Commis- sion, Act. March 16, 1901, Stats, and Amdts. 1900-1, p. 350, held unconstitutional; see history, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 397. As to contracts by married woman, see Kerr's Cyc. C. C. § 158 and note. As to many miscellaneous matters affecting- corporations gen- erally, see note § 283, ante. §326. AFFIDAVIT OR BOND MAY BE REQUIRED BEFORE TRANSFER. When the shares of stock in a corpo- ration are owned by parties residing- out of the state, the president, secretary, or directors of the corporation, before entering any transfer of the shares on its books, or issuing a certificate therefor to the transferee, may require from the attorney or agent of the non-resident owner, or from the person claiming under the transfer, [1] an affidavit or other evidence that the non-resident owner was alive at the date of the transfer, and if such affidavit or other satisfactory evi- dence be not furnished, may require from the attorney, agent, or claimant, [2] a bond of indemnity, with two sureties, satis- 190 Tit.I,ch.II,art.I.] DIRECTORS' liability. §§327,328 factory to the officers of the corporation; or, if not so satis- factory, then [3] one approved by a judge, of the superior court of the county in which the principal office of the corpo- ration is situated, conditioned to protect the corporation against any liability 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 trans- fer on the books of the corporation. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 205; Feb. 16, 1883, Stats, and Amdts. 1883, ■ p. 4. In force Feb. 16, 1883. 58 C. 426, 428 (referred to). As to many miscellaneous matters affecting coi'porations gen- erally, see note § 283, ante. As to whether bond must be demanded, see Kerr's Cyc. C. C. § 326, note. §327. CONTRACTS TO RELIEVE DIRECTORS FROM LIABILITIES FIXED BY COJVSTITUTIOIV YOID. Any con- tract or contracts, verbal or written, hereafter made, whereby it is sought directly or indirectly to relieve any director or trustee of any corporation or joint stock association from any liability imposed by section three, of article twelve, of the constitution of California, are hereby declared to be and shall be null and void. History: Enacted April 12, 1880, Code Amdts. 1880, p. 9. In force April 12, 1880. 84 C. 420, 422 (erroneously cited for §3275), 24 P. 316, 317 (correct citation). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §328. LOST, ETC., CERTIFICATE; ACTION FOR NEW CERTIFICATE; PARTIES; PROCEDURE. Whenever a cer- tificate of stock or of shares in a corporation organized under the laws of this state has been lost, destroyed or wrongfully withheld, the owner thereof may bring an action against such 191 § 328 CIVIL CODE. [Div.I,Pt.IV. corporation in the superior court of the county in Avhich is located its principal place of business, for the purpose of obtaining a new or duplicate certificate. If by the books of the corporation the stock stands in the name of a person other than the plaintiff, or if by such books it appears that some other person claims or has some rights, title, or interest in, or lien upon, such stock, all such persons must be made parties defendant with the corporation. [Summons and notice.] Summons must be issued and served as in other civil actions, and in addition thereto, the court must direct its clerk to issue and cause to be published, at least once a week for four successive weeks, in some news- paper published in the county, a notice setting forth the pend- ency of the action, the names of the parties thereto, the court in which it is pending, the name of the corporation issuing the stock, the number of the certificate and the number of the shares, the name of the person mentioned as stockholder in the certificate, and notifying all persons claiming said shares, or any of them, or any interest or lien therein or thereupon, to be and appear before the court at a time and place to be designated in the notice not less than thirty days from the first publication thereof, then and there to show cause why a new certificate should not be directed to be issued to the plaintiff, and to set forth their rights in or claim to such shares. [Proceeding on answer — Judgment.] If any one appears and answers or intervenes in the action, it must proceed to trial as in other civil cases, and the court must enter judg- ment as from the facts established may be proper; but if no one appears within the time designated in such notice, nor within the time allowed by law after the service of such summons, the court must hear such evidence as may be offered in support of the allegations of the complaint, and make and file its decision thereon, and thereupon may enter its judgment canceling the lost, destroyed or wrongfully with- held certificate and directing the corporation, upon payment to it of all costs incurred by it in the premises and without 192 Tit.I,ch.II,art.I.] BURNED bonds. §329 costs against the corporation, to issue to the plaintiff a new or duplicate certificate. After the issuing of a new certificate by the corporation pursuant to any judgment in such action, no action can ever be maintained by any person against the corporation in ref- erence to said lost or destroyed certificate or the shares repre- sented thereby, and thereafter any such action is forever barred as against the corporation. History: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 500, 501. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §329. BURNED BONDS, PEOCEDURE TO OBTAIN DUPLICATES. Whenever a bond or bonds of a corporation organized under the laws of this state or of any other state, or any territory of the United States has or have been lost or destroyed in this state by fire, earthquake, or other calam- ity, the owner thereof may bring an action against such cor- poration and the trustee or mortgagee of such bonded indebt- edness in the superior court of the county in which such bond or bonds were lost or destroyed, or in which owner resides, or in which is located the principal place of business of such corporation for the purpose of obtaining a new or duplicate bond or bonds. If said bond or bonds stand in the name of, or are registered in the name of a person other than the plaintiff, or if it appears by the books of the corporation that any other person claims or has some right, title, interest in, or lien upon such bond or bonds, all such persons must be made parties defendant with the corporation and the trustee and mortgagee. [Form of summons.] Summons must be issued and served as in other civil actions and in addition thereto the court must direct its clerk to issue and cause to be published at least once a week, for four successive weeks, in some news- paper published in the county a notice setting forth the pend- ency of the action, the names of the parties thereto, the court in which it is pending, the name of the corporation which had Kerr's C. C— 7 193 § 329 CIVIL CODE. [Div.I.Pt.IV. issued the bond or bonds, the number of said bond or bonds, if any, and the amount thereof, and the person in whose name the same stands or is registered, and notifying all persons claiming said bond or bonds, or any of them or any interest or lien therein or thereupon, to be and appear before the court at a time and place to be designated in the notice, not less than thirty days from the first publication thereof, then and there to show cause why a new bond or bonds should not be directed to be issued to the plaintiff and to set forth their rights in, or claims to such bond or bonds. If any one appears and answers or intervenes in the action it must pro- ceed to trial as in other civil cases and the court must enter judgment as from the facts established may be proper; but if no one appears within the time designated in said notice, nor within the time allowed by law after the service of such summons, the court must hear such evidence as may be offered in support of the allegations of the complaint and make and file its decision thereon. [Entry of judgment — Indemnity.] And thereupon may enter its judgment canceling the lost or destroyed bond or bonds and directing such corporation, upon payment to it of all costs incurred by it in the premises, and upon payment to it of the money required and necessary to re-issue new bond or bonds and without costs against the corporation or other defendant, mortgagee or trustee; to issue to the plain- tiff a new or duplicate bond or bonds upon the said plaintiff giving proper indemnity to the said corporation and the said mortgagee or trustee. Hl-Htory: Enacted March 6, 1907, Stats, and Amdts. 1907, p. 116, Kerr's Stats, and Amdts. 1906-7, p. 404. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 194 Tit.I,ch.II,art.II.] ASSESSMENT OF STOCK. §331 ARTICLE II. ASSESSMENT -OF STOCK. § 331. Assessments, how levied. § 332. Limitation — How levied. § 333. Levy of assessment — Old assessment remaining- unpaid. § 334. Wliat order sliall contain. § 335. Notice of Assessment — ^Form. § 336. Publication and service of notice. § 337. Delinquent notice — Form. § 338. Contents of notice. § 339. How published. § 340. Jurisdiction acquired, how. § 341. Sale to be by public auction. § 342. Highest bidder to be purchaser. § 343. In default of bidders, corporation may purchase. § 344. Disposition of stock purchased by corporation. § 345. Extension of time of delinquent sale [notice]. § 346. Assessments shall not be invalidated. § 347. Action for recovery of stock, and limitation thereof. § 348. Proofs of publication and sale. § 349. Waiver of sale — Action to recover assessment. §331. ASSESSMENTS, HOW LEVIED. The directors of any corporation formed or existing under the laws of this state, after one-fourth of its capital stock has been subscribed, may, for the purpose [1] of paying expenses, [2] conducting business, or [3] paying debts, levj' and collect assessments upon the subscribed capital stock thereof, in the manner and form and to the extent provided herein. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 206. See Kerr's Cyc. C. C. for 73 pars, annotation. 65 C. 193, 194 (construed), 195, 196 (construed with §§ 332, 333), 200 (applied), 209 (referred to in dis. op.), 210 (construed in dis. op.), 3 P. 661, 662, 666, 802; 80 C. 375, 377, 22 P. 189, 190 (construed and applied); 82 C. 600, 602 (erroneously cited), and in 23 P. 134, 135 is erroneously cited to take place of § 537. A corporation may give credit for its stock as well as for any other property sold by it, but there is no lien, in this state, in favor of a corporation, for unpaid instalments of subscriptions 195 § 331 CIVIL CODE. [Div.I.Pt.IV. for stock; 92 C. 47, 50, 27 A. S. 91, 28 P. 54, 55 (construed with §5 art. 6 constitution); 101 C. 70, 80, 35 P. 349, 350 (construed); 108 C. 490, 492, 41 P. 487 (construed and applied); 109 C. 571, 588, 42 P. 225 (construed with other sections); 116 C. 260, 263, 48 P. 65 (construed and applied); 126 C. 582, 586, 59 P. 136 (applied); 127 C. 72, 82, 59 P. 319 (referred to); 129 C. 293, 296, 61 P. 939 (referred to in discussion); 133 C. 64, 66, 65 P. 143 (construed); 135 C. 628, 632, 67 P. 1084 (applied); 141 C. 221, 227, 74 P. 754 (applied to expenses of water system); 145 C. 696, 700, 701, 702, 79 P. 441 (applied to assessment levied by directors of a savings bank); 146 C. 699, 706, 81 P. 17 (provision that one fourth of the capital stock must be subscribed, how satisfied); 2 C. A. 122, 136, 83 P. 62 (construed with other sec- tions as constituting- terms of contract); 4 C. A. 505, 507, 88 P. 506 (what is essential to recovery of judgment for assess- ment); 5 F. 403, 410 (cited). As to assessments on paid-up stock, see 26 Encyc. L. 923; also 45 L. 647; 76 A. S. 132-135. As to assessment of stock Issued as paid up, see 76 A. S. 134-136. As to assessments to pay instalments on subscription to cor- poration stock, see 81 A. D. 393-395. As to assessments under statute on paid-up stock and the construction of such statutes, see 26 Encyc. L. 923. As to definition of assessment of stock, see 76 A. S. 126. As to difference between assessments of stock and calls upon stock, see 76 A. S. 127. As to effect of assessment on stockholders made under order of the court in another state, see 34 L. 694. As to effect of nominal payment for shares on bonus stock, see 38 L. 490. As to enforcement of assessment by action against stock- holder, see Kerr's Cyc. C. C. § 349 and note. As to enforcement of assessment by means of sale, see Kerr's Cyc. C. C. § 334 and note. As to existence of lien as restraint upon alienation, see 57 A. S. 393-396. As to liability of stockholders to assessments, see 4 L. 232. As to lien, see Kerr's Cyc. C. C. § 331, note pars. 67-73 this note. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to power of corporations to assess their stockholders, see 76 A. S. 126-136. As to power of courts to compel levy of assessments for pay- ment of subscriptions, see 100 A. D. 552-557. As to power to sell stock to procure payment of assessment, see Kerr's Cyc. C. C. § 334 and note. 196 .Tit.I,ch.II,art.II.] limitation. §332 As to right of action to enforce collection of assessment, see Kerr's Cyc. C. C. § 349 and note. As to sole right of director to make assessments of stock, see 76 A. S. 127, 128. As to validity of agreement not to levy for assessment of un- paid subscription, see 57 A. S. 67. §332. LIMITATION— HOW LEVIED. No one assessment must exceed ten per cent of the amount of the capital stock named in 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 sufficient, then it may be for such a percentage as will raise that amount; 2. The directors of railroad corporations may assess the capital stock in instalments of not more than ten per cent per month, unless in the articles of incorporation it is other- wise provided; 3. The directors of fire or marine insurance corporations may assess such a percentage of the capital stock as they deem proper. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 65 C. 193, 194, 195, 196 (construed with §331), 199 (referred to in discussion), 200 (construed in dis. op.), 201 (construed with §323 in dis. op.), 202, 209, 210 (referred to in dis. op.), 3 P. 661, 802; 93 C. 538, 549, 550, 27 A. S. 215, 29 P. 126 (con- strued as not applying); 99 C. 9, 14, 33 P. 741, 742 (construed); 107 C. 447, 450, 40 P. 542 (applied); 129 C. 293, 296, 61 P. 939 (construed and applied with §§331-349); 145 C. 696, 701, 702, 707, 709, 710, 79 P. 441 (applied to assessment levied by directors of savings bank); 2 C. A. 122, 136, 83 P. 62 (construed with other sections as constituting terms of contract); 2 C. A. 445, 448, 84 P. 329 (validity of "call," by directors, for unpaid por- tion of capital stock). As to its construction with § 331, see Kerr's Cyc. C. C. § 331 pars. 22-25. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to purposes for which assessments are allowed, see 26 Encyc. L. 924; 10 Cyc. 484; and ante § 331, note part IV. 197 §§ 333, 334 CIVIL CODE. [Div.I.Pt.IV. §333. LEVY OF ASSESSMENT— OLD ASSESSMENT REMAINING} UNPAID. No assessment must be levied while any portion of a previous one remains unpaid, unless: 1. The power of the corporation has been exercised in accordance with the provisions of this article 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 subdivision of section 332. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 65 C. 193, 194, 195, 196 (construed as limiting § 332), 201 (con- strued with § 332 in dis. op.), 3 P. 661, 667, 802; 129 C. 293, 296, 61 P. 939 (construed with other sections); 66 P. 660, 662 (construed and applied). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §334. WHAT ORDER SHALL CONTAIN. Every order levying an assessment must [1] specify the amount thereof, when, to whom, and where payable; [2] 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 lev>'ing the assessment; and [3] 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 129 C. 293, 296, 61 P. 939 (construed with other sections); 108 C. 490, 493, 41 P. 487 (construed and applied, erroneously cited as §324); 6 C. A. 356, 358, 92 P. 194 (section is part of charter of corporation, and the order levying the assessment must spe- cify where the assessment is payable). As to action to recover stock, see Kerr's Cyc. C. C. § 347 and note. As to construction of this section along with § 331, see Kerr's Cyc. C. C. § 331 and note. As to effect of forfeiture of stock and non-payment of assess- ments, see 26 Encyc. L. 930; 10 Cyc. 503. 198 Tit.I,Ch.II,art.II.] ASSESSMENT NOTICE. §§ 335, 336 As to forfeiture of stock, see 26 Encyc. L. 927-929; 10 Cyc. 499; 68 A. D. 83; 27 L. 305-321; 45 L>. 365. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to payment and time and place of payment of assess- i ments, see 26 Encyc. L. 925; 10 Cyc. 486. § 335. NOTICE OF ASSESSMENT— FORM. Upon the mak- ing of the order, the secretary shall cause to be published a notice thereof, in the following form: (Name of corporation in full. Location of principal 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 corpora- tion, payable (when, to whom, and where). Any stock upon which this assessment shall remain unpaid on the (day fixed) will be delinquent and advertised for sale at public auction, and, unless payment is made before, will be sold on the (day appointed), to pay the delinquent assessment, together with costs of advertising and expenses of sale. (Signature of secretary, with location of office.) HLstory: Enacted March 21, 1872. See Kerr's Cj'c. C. C. for 6 pars, annotation. 101 C. 70, 81, 35 P. 349, 350 (construed and applied); 129 C. 293, 296, 61 P. 939 (construed with other sections). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to notice not being a prerequisite to section, see 81 A. D. 394. §336. PUBLICATIOX AND SERVICE OF NOTICE. The notice must [1] be personally served upon each stockholder, or, in lieu of personal service, must [2] be sent through the mail, [a] addressed to each stockholder at his place of resi- dence, if known, and if not known, at the place where the principal office of the corporation is situated, and [b] be pub- lished once a week, for four successive weeks, in [c] some newspaper of general circulation and devoted to the publica- tion of general news, published at the place designated in the articles of incorporation as the principal place of busi- 199 § 337 CIVIL CODE. [Div.I.Pt.IV. ness, and also [d] 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 territory of the United States, pub- lication in a paper of the place where they are situated is not necessary. If there be no newspaper published at the place designated as the principal place of business of the corpora- tion, then the publication must be made in some other news- paper of the county, if there be one, and if there be none, then in a newspaper published in an adjoining 'county. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 206. See Kerr's Cyc. C. C. for 2 pars, annotation. 129 C. 293, 296, 61 P. 939 (construed with other sections). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to notice of assessment, see Kerr's Cyc. C. C. §§ 333, 334 and note, § 337 and note. §337. DJILINQUENT NOTICE— FORM. If any portion of the assessment mentioned in the notice remains unpaid on the day specified therein for declaring the stock delinquent, the secretary must, unless otherwise ordered by the board of directors, cause to be published in the same papers in which the notice hereinbefore provided for shall have been published, a notice substantially in the following^ form : (Name in full. Location of the principal place of busi- ness.) Notice. — There is delinquent upon the following described stock, on account of assessment levied on the (date), (and assessments levied previous thereto, if any), the several amounts set opposite the names of the respect- ive shareholders, as follows: (Names, number of cer- tificate, number of shares, amount.) And in accordance 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- 200 Tit.I,ch.II,art.II.] CONTENTS OF NOTICE. §§338,339 ments thereon, together with costs of advertising and expenses of the sale. (Name of the secretary, with location of office.) History: Enacted March 21, 1872, founded upon § 2 Act April 4, 1864, Stats. 1863-4, pp. 492-493. See Kerr's Cyc. C. C. for 7 pars, annotation. 101 C. 70, 76, 35 P. 349 (construed with other sections); 108 C. 490, 493, 41 P. 487 (construed with other sections); 109 C. 1, 8, 41 P. 809 (construed and applied); 129 C. 293, 296, 61 P. 939 (construed with other sections). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §338. CONTENTS OF NOTICE. The notice must specify [1] every certificate of stock, [2] the number of shares it represents, and [3] the amount due thereon, except where certificates may not liaye been issued to parties entitled thereto, in which case [1] the number of shares and [2] amount due thereon, together with [3] the fact that the cer- tificates for such shares have not been issued, must be stated. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 101 C. 70, 76, 35 P. 349 (construed with other sections); 129 C. 293, 296, 61 P. 939 (referred to with other sections). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 339. HOW PUBLISHED. The notice, wlien published in a daily paper, must be published for ten days, excluding Sun- days and holidays, previous to the day of sale. When pub- lished in a weekly paper, it must be published in each issue for two weeks previous to the day of sale. The first publica- tion of all delinquent sales must be at least fifteen days prior to the day of sale. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 101 C. 70, 76, 35 P. 249 (construed with other sections); 108 C. 490, 493, 41 P. 487 (construed with other sections); 129 C. 293, 296, 61 P. 939 (referred to with other sections). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 201 §§ 340-343 CIVIL CODE. [Div.I,Pt.IV. § 340. JURISDICTION ACQUIRED, HOW. By the publica- tion of the notice, the corporation 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 assess- ment 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. HLstory: Enacted March 21, 1872, As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 341. SALE TO BE BY PUBLIC AUCTION. 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 bid- der 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 required to pay the actual cost of advertising, in addition to the assessment. History: Enacted March 21, 1872. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 342. HIGHEST BIDDER TO BE THE PURCHASER. 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 bidder, and the stock purchased must be trans- ferred to him on the stock-books of the corporation, on paj''- ment of the assessment and costs. History: Enacted March 21, 1872. §343. IN DEFAULT OF BIDDERS, CORPORATION MAY PURCHASE. If, at the sale of stock, no bidder offers the amount of the assessments and costs and charges due, the same may be [1] bid in and purchased by the corporation, 202 Tit.I,ch.II,art.II.] purchase OF stock. §§344,345 through the secretary, president, or any director thereof, [2] at the amount of the assessments, costs, and charges due; and [3] the amount of tlie assessments, costs, and charges must be credited as paid in full on the books of the corporation, and [4] entry of the transfer of the stock to the corporation must be made on the books thereof. While 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. History: Enacted March 21, 1872. 57 C. 396, 398 (cited in holding- that neither allegations nor evidence proved ownership of stock, or that disposition thereof by sale was authorized by by-laws, or by vote of stockholders). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §344. DISPOSITION OF STOCK PURCHASED BY COR- PORATION. 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 may 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 cor- poration is held by the corporation by purchase, a majority of the remaining shares is a majority of the stock for all pur- poses of election or voting on any question at a stockholders' meeting. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation 57 C. 396, 398 (cited); 72 C. 32, 33, 34, 13 P. 65 (construed and applied); 109 C. 571, 588, 42 P. 225 (construed and applied with other sections). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §345. EXTENSION OF TIME OF DELINQUENT SALE— [NOTICE]. The dates fixed in any notice of assessment or notice of delinquent sale, published according to the pro- 203 §§346,347 CIVIL CODE. [Div.I,Pt.IV. visions hereof, may be [1] 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 in any notice is effectual unless [2] notice of such extension or postponement is appended to and published with the notice to which the order relates. History: Enacted March 21, 1872. 4 C. A. 505, 508, 88 P. 506 (construed as limiting right of ex- tension of time for sale to thirty days in the aggregate). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §34G. ASSESSMENTS SHALL NOT BE INVALIDATED. No assessment is invalidated by a failure to make publica- tion of the notices hereinbefore provided for, nor by the non- performance of any act required in order to enforce the pay- ment of the same; but in the case of any substantial error or omission in the course of proceedings for collection, all previous proceedings, except the levying of the assessment, are void, and publication must be begun anew. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 76 C. 26, 28, 17 P. 939, 940 (construed and applied); 108 C. 490, 495, 41 P. 487 (construed and applied with §349); 109 C. 1, 8, 41 P. 809 (construed and applied). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 347. ACTION FOR RECOVERY OF STOCK, AND LIMI- TATION THEREOF. No action must be sustained to recover stock sold for delinquent assessments, upon the ground of [1] irregularity in the assessment, [2] irregularity or [3] defect of the notice of sale, or [4] defect or irregularity in the sale, unless the party seeking to maintain such action first pays or tenders to the corporation, or the party holding the stock sold, [1] the sum for which the same was sold, together with [2] all subsequent assessments which may have been paid thereon and [3] interest on such sums from 204 Tit.I,ch.II,art.II.] PROOF— waiver. §§ 348, 349 the time they were paid; and no such action must be sus- tained unless the same is [4] commenced by the filing of a complaint and the issuing of a summons thereon within six months after such sale was made. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 76 G. 26, 28, 17 P. 939, 940 (construed and applied); 133 C. 64, 66, 65 P. 143 (construed and applied). As to many miscellaneous matters affecting' corporations gen- erally, see note § 283, ante. § 348. PROOFS OF PUBLICATION AND SALE. The pub- lication of notice required by this article may be proved by the affidavit of [1] the printer, [2] foreman, or [3] principal clerk of the newspaper in which the same was published; and the affidavit of tlie secretary or auctioneer is prima facie evidence of [1] the time and place of sale, or [2] the quantity and particular description of the stock sold, and [3] to whom, and [4] for what price, and [5] of the fact of the purchase money being paid. The affidavits 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 secretary and under the seal of the corporation, are prima facie evidence of the contents thereof. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 207. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §349. WAIVER OF SALE. ACTION TO RECOVER ASSESSMENT. On the day specified for declaring the stock delinquent, or at any time subsequent thereto and before the sale of the delinquent stock, the board of directors may elect to waive further proceedings under this chapter for the collection of delinquent assessments, or any part or portion thereof, and may elect to proceed by action to recover the 205 § 349 CIVIL CODE. [Div.I,Pt.IV. amount of the assessment and the costs and expenses already incurred, or any part or portion thereof. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 36 pars, annotation. 101 C. 70, 76, 77, 35 P. 349 (construed and applied); 108 C. 490, 493, 495, 41 P. 487 (construed and applied); 109 C. 1, 5, 41 P. 809 (cited in discussion); 110 C. 632. 635, 52 A. S. 136. 43 P. 10 (construed and applied); (C. March 24, 1900), 60 P. 776, 778 (applied and construed); 129 C. 293, 296, 61 P. 939 (referred to in other sections); 145 C. 696, 700, 701, 79 P. 441 (amount of as- sessment may be recovered by suit in name of the corpora- tion); 2 C. A. 122. 136, 83 P. 62 (construed with other sections as forming terms of contract); 4 C. A. 505, 507, 88 P. 506 (what is essential to recovery of judgment for assessment); 5 F. 403, 408, 409, 410, 429 (construed and applied, though erroneously cited as C. C. P.). As to actions and remedies for amounts due on assessments, see 26 Encyc. L. 926; 10 Cyc. 510. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to power of court to compel payment of calls of assess- ments, see 100 A. D. 552. As to prerequisites of action for assessments of stock, see 26 Encyc. L. 926; 10 Cyc. 511. As to right to proceed in equity to compel payment, see 100 A. D. 553. As to right to sue upon contract for subscription before issuing certificate, see 81 A. D. 394. 206 Tit.I,ch.III,art.I.] CORPORATE POWERS. §354 CHAPTER III. CORPORATE POWERS. Article I. General Powers, §§ 354-365. II. Records, §§ 377, 378. III. Examinations of corporations, etc., §§ 382-384. IV. Judgment Against and Sale of Corporate Property, §§ 388-393. ARTICLE I. GENERAL POWERS. § 354. Powers of corporations. § 355. Limitation of powers. § 356. Banking expressly prohibited. § 357 Misnomer does not invalidate instrument. § 358'. Corporations, time in which must be organized, and con- tinuance of business. 8 359 Increasing and diminishing capital stock. [Fictitious increase of stock void.] Bonded Indebtedness, how created or increased. § 360 Corporations may acquire real property, and how much. § 36L Consolidation of mining companies owning adjoining claims [repealed]. § 361a. Transfer of franchise of corporation not valid without consent of the stockholders. §362. Amendment of articles or certificate of incorporation- Filing, penalty. § 363. Corporations to own their own lots and buildings [re- pealed]. . . §363[a]. Correction of erroneous filing of incorporation-Peti- tion, nature of — Action of court. § 364 Corporation may transfer foreign concessions. § 365. Restoration of lost records, certificates of stock, etc. § 354. POWERS OF COKPORATIONS. Every corporation, as such, has power: 1. Of succession, by its corporate name, for the period lim- ited; and when no period is limited, perpetually; 2 To sue and be sued, in any court; 207 § 354 CIVIL CODE. [Div.T.Pt.IV. 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 assessments or instal- ments; 8. To enter into any obligations or contracts essential to the transaction of its ordinary affairs, or for the purposes of the corporation. History: Enacted March 21, 1872. See Kerr's Cj^c. C. C. for 118 pars, annotation. 52 C. 53, 59, 28 A. R. 629 (referred to); 56 C. 61, 63 (construed and applied); 62 C. 69, 104 (referred to); 63 C. 359, 363, 364 (con- strued and applied); 93 C. 300, 309, 28 P. 1049, 1051 (construed with other sections); 108 C. 549, 558, 41 P. 495, 29 L. 839 (ap- plied); 109 C. 160, 163, 41 P. 855 (construed and applied); 116 C. 410, 414, 415, 48 P. 375 (construed with other sections); 117 C. 168, 177, 48 P. 1075 (construed and applied); 118 C. 131, 138, 50 P. 269 (construed and applied); 126 C. 413, 416, 417, 58 P. 914 (construed and applied); 144 C. 578, 594, 77 P. 1113 (section ex- pressly authorizes corporation to "hold" land); 1 C. A. 189, 195, 81 P. 1029 (cited as to power of corporation to make by-laws); 2 C. A. 624, 627, 84 P. 271 (cited as to power of corporations to make by-laws). As to business being conducted by board of directors, see Kerr's Cyc. C. C. § 305 and note. As to compensation of directors, see Kerr's Cj'C. C. C. § 305 and note. As to many miscellaneous matters affecting- corporations gen- erally, see note § 283, ante. As to provisions of by-laws, see Kerr's Cyc. C. C. § 303 and note. Railroad companies — Power to acquire real estate. — See Kerr's Cyc. C. C. § 465 subds. 2, 3, 7, §§ 474, 477. 208 Tit.I,ch.III,art.I.] LIMIT OF POWER. §§ 355-357 Recording, amending-, and repeal of by-laws. — See Kerr's Cyc. C. C. § 304 and note. Sale of stock for non-payment of assessments. — See Kerr's Cyc. C. C. § 331 and note. §355. LIMITATION OF POWERS. In addition to the powers enumerated in the preceding section, and to those expressly given in that title of this part under which it is incorporated, no corporation shall possess or exercise any corporate powers, except such as are necessary to the exer- cise of the powers so enumerated and given. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 59 C. 22, 24 (cited as to power of agent of company to raise money for it and to pay debts); 62 C. 69, 104 (referred to in connection with § 354). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §356. BANKING EXPRESSLY PROHIBITED. No corpo- ration shall create or issue bills, notes, or other evidences of debt, upon loans or otherwise, for circulation as mone3\ History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to powers of corporation, see Kerr's Cj^c. C. C. § 354 and note. For Commissioners' comment on this section see Kerr's Cyc. C. C. § 356, note. §357. MISNOMER DOES NOT INVALIDATE INSTRU- MENT. The misnomer of a corporation in any written instru- ment does not invalidate the instrument, if it can be reason- ably ascertained from it what corporation is intended. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 93 C. 300, 314, 28 P. 1049, 1052 (applied); 138 C. 183, 194, 94 A. S. 28, 71 P. 93 (applied); 2 C. A. 436, 441, 83 P. 1077 (applied). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 209 § 358 CIVIL CODE. [Div.LPt.IV. §358. CORPOKATIONS, TIME IN WHICH MUST BE ORGANIZED, AND CONTINUANCE OF BUSINESS. If a cor- poration does not organize and [1] commence the transaction of its business, or [2] the construction of its works within one year from the date of its incorporation, or if, after its organization and commencement of its business, it [3] shall lose or dispose of all its property, and [-I] shall fail for a period of two years to elect officers and transact, in regular order, the business of said corporation, its corporate powers sliaH cease, and the said corporation may be dissolved at the instance of any creditor of the said corporation, at the suit of the state, on the information of the attorney-general, but the resumption of Its business in good faith by such cor- poration prior to the commencement thereof shall be a bar to such suit. [Collateral attack not allowed.] 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 de facto corporation may be a party; but such inquiry may be had at the suit of the state on information of the attorney-general; provided, however, as to any company claiming in good faith to be, and which has been doing business for ten consecutive years as a cor- poration, no such inquiry shall be made either by the state or by any person whatsoever. History: Enacted March 21, 1S72; amended March 23, 1901, Stats, and Amdts. 1900-1, p. 632. See Kerr's Cyc. C. C. for 21 pars, annotation. 64 C. 69, 72, 28 P. 496, 497 (applied); 77 C. 360, 372, 18 P. 85, 86, 19 P. 693, 2 L. 92 (cited in discussion); 80 C. 181, 186, 22 P. 76 (applied); 82 C. 184, 186, 23 P. 45, 46 (applied); 97 C. 276, 277, 33 A. S. 172, 32 P. 236 (applied); 102 C. 55, 64, 65, 66 (construed and applied), 67 (cited), 41 A. S. 151, 36 P. 368; 106 C. 302, 310, 39 P. 617 (applied); 109 C. 571, 601, 42 P. 225, 226 (referred to in dis. op.); 126 C. 541, 545, 58 P. 1049 (applied); 131 C. 153, 154, 63 P. 163 (applied); 151 C. 504, 507, 508, 91 P. 258 (concluding clause of section, as amended in 1901, construed and applied to 210 Tit.I,ch.III,art.I.] increasing capital. §359 a corporation which had been in existence for more than ten years prior to such amendment). As to many miscellaneous matters affecting- corporations gen- erally, see note § 283, ante. §359. IXCEEASING AND DIMINISHING CAPITAL STOCK. [FICTITIOUS INCREASE OF STOCK VOID.] BONDED INDEBTEDNESS, HOW CREATED OR INCREASED. No corporation shall issue stocks oi' bonds except for money paid, labor done or property actually received, and all ficti- tious increase of stock or indebtedness is void. Every corpo- ration may increase or diminish its capital stock, and every corporation, or two or more corporations, may create or increase its or their bonded indebtedness, subject to the fol- lowing provisions: 1. [How capital stock may be increased or diminished.] The capital stock of a corporation may be increased or dimin- ished at a meeting of the stockholders by a vote representing at least two-thirds of the subscribed or issued capital stock, or in the manner otherwise in this section provided; when by meeting as aforesaid, then such meeting must be called by the board of directors or trustees, and notice must be given by publication in a newspaper published in the county or city and county where the principal place of business of the corporation is located, or if there be none published in said county or city and county, then in a newspaper published in an adjoining county, or city and county, such paper to be designated by the board of directors or trustees in the order calling for the meeting; provided, however, that where the articles of incorporation provide for two or moi-e kinds of capital stock, no increase or reduction of capital stock shall be made without the assent of two-thirds of all the sub- scribed stock, and in making such increase or reduction, the assent shall identify the particular class or classes of stock to be increased or reduced, and the amounts apportioned to each. 2. [What notice must specify.] 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 211 §359 CIVIL CODE. [Div.I.PtlV. place of holding the meeting, which latter must be at the principal place of business of the corporation and at the building where the board of directors or trustees usually meet. The notice herein provided must be published once a week for at least sixty days. The capital stock cannot be diminished to an amount less than the indebtedness of the corpoiation. 3. [How bonded indebtedness may be created or increased.] The bonded indebtedness of a corporation may be created or increased by a vote of the stockholders representing at least two-thirds of the subscribed or issued capital stock at a meeting called by the board of directors or trustees, and after notice of the time and place of the meeting published in the same manner and for the time prescribed, which notice shall state the amount of the bonded indebtedness which it is pro- posed to create, or the amount to which it is proposed to increase such indebtedness, and shall in all other respects contain the same matters as are above provided and set forth in the notice of meeting to increase or diminish the capital stock; or such original creation of bonded indebtedness may be made as otherwise in this section provided. 4. [Notification to stockholders.] In addition to the notice by publication, when proceedings are to be had hereunder at a meeting of stockholders, 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 addressed or identified, at his place of residence, if known, and if not known, then at the place in which the principal place of business of the corporation is situate, which notice shall be so mailed to such stockholders at least thirty days before the day appointed for such meeting. 5. [Directors may diminish stock and create indebted- ness.] In lieu of such call for meeting of stockholders and of such notice and publication of the same and of a stock- holders' meeting held in pursuance thereof and of said vote thereat representing at least two-thirds of the subscribed capital stock, any corporation may diminish its capital stock and also originally create its bonded indebtedness by a reso- 212 Tit.I,ch.III,art.I.] increasing capital. §359 lution adopted by the unanimous vote of its board of direc- tors or trustees at a regular meeting or at a special meeting called for that purpose and approved by the written assent or assents of the stockholders holding two-thirds of the sub- scribed or issued capital stock, which assent or assents must be filed with the secretary of the corporation; but the secre- tary of the corporation must address by mail, postage fully prepaid, a copy of such resolution to each of the stockholders whose names appear upon the company's books as sufficiently addressed or identified, at his place of residence, if known, and if not known, then at the place in which the principal place of business of the corporation is situate, which notice shall be so mailed to such stockholders at least thirty days before the certificate hereinafter provided is made and signed or filed, as hereinafter provided, and within that time any stockholder may file with such secretary his dissent in writ- ing; but it is further provided, that if at any time within said thirty days such written assent or assents of the stock- holders holding all of the subscribed or issued capital stock be so filed with said secretary, then and at once and without further delay the certificate hereinafter provided for may be so made, signed and filed as hereinafter provided and with the same effect. [Limit of diminution.] But such capital stock cannot be diminished to an amount less than the indebtedness of the corporation, and no increase of capital stock or bonded indebtedness can be made, except at a meeting of stockholders as in this section provided. 6. [Consolidated indebtedness.] Any two or more corpora- tions may by a separate compliance by each corporation with the provisions of this section applicable in the premises in respect to creating or increasing bonded indebtedness, create or increase a consolidated bonded indebtedness of such cor- porations, to be binding jointly and severally on such corpo- rations, and which may be secured by a consolidated mort- gage or deed of trust executed by all such corporations, mortgaging or conveying in trust all or any of the properties of all such corporations, acquired or to be acquired. 213 § 359 CIVIL CODE. [Div.I,Pt.IV. 7. [Certificate of increase or (liminution.] Upon such increase or diminution of the capital stock or creation or increase of the bonded indebtedness being made in accord- ance with the provisions of this section there shall be made, if proceedings are had under subdivisions first, second, third and fourth above, a certificate under the corporate seal and signed by the president and secretary of the corporation or of each corporation acting in the premises and a majority of the directors or trustees of such corporation, or each cor- poration so acting, showing a compliance by such corpora- tion, or each corporation so acting, with the requirements of said last-named subdivisions and the amount to which the capital stock has been increased or diminished or tlie amount of the bonded indebtedness created, or to which the bonded indebtedness may liave been increased, and the amount of stock represented at the meeting and the total vote in the affirmative by which the same was accomplished and the total vote in the negative; or if such proceedings be had and taken under subdivision fifth of this section as to diminution of capital stock or original creation of bonded indebtedness a like certificate shall be made and sealed and signed, as aforesaid, showing a compliance by such corporation, and by each corporation acting in the premises, with the require- ments of said subdivision fifth, and the amount to which the capital stock has been diminished or the amount of bonded indebtedness so originally created, and the total amount of the stock represented by the said written assent or assents so filed with the secretary and the total amount of stock represented by the said written dissent or dissents so filed. In case of a consolidated bond of indebtedness each corporation which is a party thereto shall cause to be made and signed and sealed and verified and filed, as in this sec- tion provided, a separate certificate. 8. [What certificate shall state.] In all cases the certifi- cates shall state the total number of subscribed or issued shares of the capital stock of the corporation, or of each corporation respectively acting in the premises, and shall 214 Tit.I,cli.III,art.I.] INCREASING CAPITAL. § 359 be verified by the oath of the said president and secretary, or of the said respective presidents and secretaries. Such consolidated bonded indebtedness may be created or increased to an amount equal to the par or face value of the aggre- gate amount of the subscribed or issued capital stock of said two or more corporations, but shall not exceed such aggre- gate amount. [Where filed.] In each and every case the certificate must be filed in the office of the clerk in the county or city and county where the original articles of incorporation of the corporation or corporations acting hereunder are filed and a certified copy thereof, certified by such clerk, shall be filed in the office of the secretary of state; and thereupon the capital stock shall be so increased or diminished, or the. bonded indebtedness or consolidated bonded indebtedness shall be created or increased accordingly, and such certifi- cate or certificates so filed shall be, when said certified copy or copies are so filed, conclusive proof of such increase or diminution of capital stock or such creation or increase of bonded or consolidated bonded indebtedness and the validity of each thereof. [Publication of notices.] When the by-laws of a corpora- tion prescribe the paper in which notices of meetings of directors or trustees or stockholders are to be published the notices of publication herein provided for shall be published in such paper, unless publication thereof shall have ceased. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 207; March 3, 1883, Stats, and Amdts. 1883, p. 31; March 18. 1885, Stats, and Amdts. 1885, p. 141; March 19, 1889. Stats, and Amdts. 1889, p. 364; March 23, 1893, Stats, and Amdts. 1893, p. 191; March 21, 1903, Stats, and Amdts. 1903, p. 347; amended March 18, 1907, Stats, and Amdts. 1907, pp. 439- 452, Kerr's Stats, and Amdts. 1906-7, pp. 405-408. See Kerr's Cyc. C. C. for 27 pars, annotation. 56 C. 649, 651, 653, 655 (held unconstitutional); 65 C. 616, 617, 4 P. 662, 663 (applied); 96 C. 160, 161, 31 P. 14 (referred to); 103 C 624 630, 37 P. 638 (construed); 109 C. 571, 594 (construed), 597, 600 (referred to), 42 P. 225; 112 C. 208, 213, 44 P. 476 (re- ferred to); 116 C. 416, 424, 48 P. 377 (construed and applied); 125 C. 453, 454, 455, 58 P. 64 (construed and applied); (C. Dec. 215 § 360 CIVIL CODE. [Div.I,Pt.IV. 19, 1900) 63 P. 74, 77 (construed); 135 C. 579, 583, 87 A. S. 143, 67 P. 1057, 56 L. 728 (referred to); 147 C. 581, 582, 109 A. S. 176, 82 P. 247 (proceedings for increase of capital stock are invalid unless the public notice required by statute was given); 2 C. A. 122, 130, 83 P. 62 (what agreement indicates that stock was issued as paid-up stock); 45 F. 518, 528 (construed as to in- debtedness for which bonds may be issued); 79 F. 842, 846 (neither this section nor art. XII, § 11, of the constitution, says anytliiiitf about the "sale" or "pledge" of stocks or bonds. A corporation is not prohibited from pledging its bonds as col- lateral security). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Limitations on power to increase capital stock. — See Kerr's Cyc. C. C. § 309 and note. Limitations on power to reduce capital stock, see Kerr's Cyc. C. C. § 309 and note. §360. CORPOEATIONS MAY ACQUIRE REAL PROP- ERTY, AND HOW MUCH. No corporation shall acquire or hold any more real property than may be reasonably neces- sary [1] for the transaction of its business, or [2] the con- struction of its works, [3] except as otherwise specially pro- vided. A corporation may acquire real property, as pro- vided in title seven, part tliree, of the Code ot Civil Procedure, when needed for any of the uses and purposes mentioned in said title. 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 [1] acquire and hold the land and building on and in which its business is carried on, and may [2] improve the same to any extent required for the convenient transaction of its business. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 208; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 351, held unconstitu- tional, see history, § 4 ante; amendment re-enacted March 22, 1905, Stats, and Amdts. 1905, p. 774. See Kerr's Cyc. C. C. for 32 pars, annotation. 144 C. 578, 594, 77 P. 1113 (construed with § 286, as to power of corporation to acquire title by prescription). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 216 Tit.T,ch.III,art.I.] TRANSFER OF FRANCHISE. §§ 361, 361a Equitable interest cannot be acquired by corporation when it cannot hold in its own name.-See Kerr's Cyc. C. C. § 354 and ""TnsTrlnTe companies-Power to hold land.-See Kerr's Cyc. C C. § 415 and note. r^ n Presumption as to power to hold land.— See Kerr s Cyc. C. C. § 354 and note par. 39. t.-^,.^'., c^m Turnpike companies-Power to hold land.-See Kerr s Cyc. C. C. § 354 and note pars. 62, 63. § 361. CONSOLIDATION OF MINING COMPANIES OWN- ING ADJOINING CLAIMS (repealed). History: Enacted March 21, 1872; amended March 20. 1876, Code Amdts. 1875-6, p. 75; repealed by Code Commission, Act March 18, 1901, Stats, and Amdts. 1900-1, p. 351, \\eld unconsti- tutional, see history, § 4 ante; re-repealed March 22, 1905, Stats, and Amdts. 1905, p. 775. 147 C. 663, 666. 82 P. 319 (effect of consolidation of mining corporations). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. § 361a. TRANSFER OF FRANCHISE OF CORPORATION NOT YALID WITHOUT CONSENT OF STOCKHOLDERS. No sale, lease, assignment, transfer or conveyance of the business, franchise and property, as a whole, of any corpora- tion now existing, or hereafter to be formed in this state, shall be valid without the consent of stockholders thereof, holding of record at least two-thirds of the issued capital stock of such corporation; such consent to be either expressed in [1] writing, executed and acknowledged by such stock- holders, and attached to such sale, lease, assignment, trans- fer or conveyance, or [2] by a vote at a stockholders' meet- ing of such corporation called for that purpose; but with such assent, so expressed, such sale, lease, assignment, trans- fer or conveyance shall be valid; provided, however, that nothing herein contained shall be construed to limit the power of the directors of such corporation to make sales, leases, assignments, transfers or conveyances of corporate property other than those hereinabove set forth. 217 § 362 CIVIL CODE. [Div.I,Pt.TV. History: Enacted March 24, 1903, Stats, and Amdts. 1903, p. 396. 152 C. 579, 584, 586, 587, 588, 93 P. 490 (construed and applied). As to many miscellaneous matters affecting- corporations gen- erally, see note § 283, ante. §362. AMENDMENT OF ARTICLES OR CERTIFICATE OF INCORPORATION— FILING}, PENALTY. Any corporation may amend its articles of incorporation [1] by a majority vote of its board of directors or trustees, and [2] by a vote or written assent of the stockholders representing at least two-thirds of the subscribed capital stock of such corpora- tion, or [3] the written assent of the majority of the mem- bers if there is no capital stock; and a copy of the said articles of incorporation, as thus amended, duly certified to be correct by the president and secretary of the board of directors or trustees of such corporation, [4] shall be filed in the office where the original articles of incorporation are filed, and [5] a certified copy thereof, duly certified by such county clerk, [shall be filed] in the office of the secretary of state. A copy of such articles of incorporation, so amended, duly certified by the secretary of state, must be filed in the office of the county clerk of every county in which such corpora- tion has or holds property, except only the county in which the original amended articles of incorporation have been filed. Any corporation which shall amend its articles of incorporation and shall fail to file copies of its amended arti- cles, as required by the preceding sentence, shall be subject to the penalties and liabilities provided in section two hun- dred and ninety-nine for a failure of corporations to file copies of their articles of incorporation in the offices of the county clerks of the counties in which they shall purchase, hold, or locate property, and from the time of so filing such copy of the amended articles of incorporation, such corpora- tion shall have the same powers, and the stockholders thereof shall thereafter be subject to the same liabilities, as if such amendment, had been embraced in the original articles of incorporation. 218 Tit.I,ch.III,art.I.] AMENDING ARTICLES. §363 Such original and amended articles of incorporation shall together contain all the matters and things required by the laws under which the original articles of incorporation were executed and filed. Nothing contained in this section must be construed to cure or amend any defect existing in the original articles of incorporation heretofore filed, in that such articles did not set forth the matters required to make the same valid at the time of filing. If the assent of two-thirds of said stocliholders, or of the majority of members where there is no capital stock, to such amendment has not been obtained, a notice of the intention to make such amendment must first be advertised for thirty days in some newspaper published in the town, city, county, or city and county in which the principal place of business' of the corporation is located, before the filing of the proposed amendment. Nothing in this section shall be construed to authorize any corporation to increase or diminish its capital stock, change its name, extend its corporate existence, or Increase or diminish the number of its directors, without complying with the special provisions of this code applicable thereto. History: Enacted March 21, 1872; amended March 12, 1885, Stats, and Amdts. 1885, p. 91; March 11, 1893, Stats, and Amdts. 1893, p. 131; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 351, held unconstitutional, see his- tory, § 4 ante; March 25, 1903, Stats, and Amdts. 1903, p. 411; March 22, 1905, p. 775. See Kerr's Cyc. C. C. for 3 pars, annotation. 99 C. 392, 396, 34 P. 103 (construed); 124 C. 112, 115, 56 P. 779 (applied); 2 C. A. 546, 552, 84 P. 298 (notice of intention to make am.endment is required only when). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §363. CORPORATIONS TO OWN THEIR OWN LOTS AND BUILDINGS (repealed). History: Enacted March 5, 1889, Stats, and Amdts. 1S89, p. 67. At the same session another section numbered § 363 was enacted by the same legislature on March 19 (Stats, and Amdts. 1889, p. 332). The Act of March 5 was repealed by Code Com- 219 §363[a] CIVIL CODE. [Div.I,Pt.IV. mission, Act of March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante, and the act was re-repealed March 22, 1905, Stats, and Amdts. 1905, p. 776. See Kerr's Cyc. C. C. § 360 and note. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §363[a]. CORRECTION OF ERRONEOUS FILING OF INCORPORATION— PETITION, NATURE OF— ACTION OF COURT. When articles of incorporation have been prepared, subscribed, and executed in accordance with the provisions of section 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 trans- acted, and the secretary of state shall have issued a certifi- cate of incorporation based on a certified copy of such origi- nal articles of incorporation, any stockholder or director of such corporation may petition the superior court of the county in which said original articles of incorporation were filed for an order to withdraw such original articles of incor- poration, and file in place thereof a certified copy of the copy thereof on file in the office of the secretary of state. Such petition must [1] be verified, and must [2] state clearly the facts, showing that such articles of incorporation were filed by inadvertence and mistake; and [3] notice of the hearing of said petition must be given for at least ten days before the day of hearing, [4] by publication in a newspaper pub- lished in the county where such petition is filed. [Hearing and proceedings on order.] Upon the day set for hearing the petition the superior court may [1] grant an order allowing such original articles of incorporation to be withdrawn, and [2] a certified copy of the copy in the office of the secretary of state in the place thereof filed; and [3] the original articles of incorporation must be filed within ten days thereafter in the county in which the principal place of [where] business is to be transacted, as stated in such articles of incorporation, and [4] a certified copy of the 220 Tit.I,ch.III,art.I.] FOREIGN concession. §§364,365 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 private corporation, and the title to any property it may have previously acquired shall not be affected by reason of the failure to file the original articles of incorporation in the first instance. History: Enacted March 19, 1889, Stats, and Amdts. 1889, p. 332. In force March 19, 1889. § 364. CORPORATIONS MAT TRANSFER FOREIGN CON- CESSIONS. Any corporation of this state owning grants, concessions, franchises, and properties, or any thereof, in anj' foreign country, may sell and convey the same to the govern- ment of such foreign country, or to any person or persons, or any corporation or corporations, or association or associa- tions, created by or existing under the laws of this or any other state of the United States, or any foreign government; provided, however, that the powers hereby granted shall only be exercised by a majority of the entire board of directors of such corporation of this state, with the concurrence in writing of the holders of two-thirds in amount of the capital stock thereof. History: Became law, under unconstitutional provision, witli- out governor's approval, March 13, 1899. §365. RESTORATION OF LOST RECORDS, CERTIFI- CATES OF STOCK, ETC. Whenever it shall appear that the minutes, records, seal, assessment book, stock journal, stock ledger, certificate book, certificate of stock or bonds or other papers or records of any corporation, municipal, quasi or otherwise, in this state, shall have been or shall hereafter be lost or destroyed by conflagration or other public calamity, such corporation, by a vote of its board of directors, or any stockholder or bondholder of such corporation, may petition the superior court of the county, or city and county, in which the principal place of business of such corporation is located, to restore such lost, destroyed, or injured minutes, records, 221 § 365 CIVIL CODE. [Div.LPt.IV. seal, assessment book, stock journal, stock ledger, certificate book, certificate of stock or bonds or other papers or records. Such petition shall state the loss, destruction or injury to any such records or documents or certificates of stock or bonds, or other papers or records, or any part or portion thereof, giving the cause of such loss, injury or destruction. [Petition filed with court.] On the filing of such petition, duly verified, said superior court shall make an order, fixing a time and place for the hearing of the same, and directing the clerk of the court to give notice of such a hearing by publication of a notice stating the time and place of the hearing of said petition and the purpose thereof, which time shall not be less than twenty-five nor more than thirty days from the completion of such publication. [Publicatiou of notice of hearing.] Notice of such hearing shall be given by publication in some newspaper of general circulation, printed and published in such county, or city and county, where the principal place of business of said corporation is located, and if there be no such newspaper published in said county, or city and county, then in some adjoining county, to be designated by the court or judge thereof, which publication shall be daily (except Sundays) for a period of at least three successive weeks. In case there is no daily newspaper published in either of said counties then such notice shall be published once a week for three successive weeks in a weekly newspaper published in such county. [Service of notice.] A copy of said notice shall also be personally served upon all persons affected thereby residing in the state of California, whose place of residence or place of business is known to the corporation or any of its officers, if such person can be found within the state, which service may be made at any time during said period of publication. If the place of business or place of residence of any persons affected by said petition or proceeding is unknown to the corporation or any of its officers, within forty-eight hours after the filing of said petition, a copy of said notice shall 222 Tit.I,cll.III,art.I.] RESTORING RECORDS. §365 be mailed to each of the persons affected by said petition or proceeding whose place of residence or place of business is unknown to said corporation or any of its officers, addressed to them, postage prepaid, at the county seat of the county, or county and city, where the place of business of said corporation is located. In addition to the notice by publication, the petitioner shall address a copy of said notice to each of the stockholders of said corporation, and also to each of the persons affected by said petition, whose names and places of residence or business are known to the corpo- ration or any of its officers, at his place of business or resi- dence, postage prepaid, which notice shall be mailed to such stockholders or persons within forty-eight hours after the filing of said petition. [Proof required of publication and service of notice.] The court before proceeding to hear the case, shall require proof to be made that notice has been published and given as here- inbefore required and service of such notice personally if the same has been so served and if the same has not been so served, an affidavit of the petitioner stating the reasons why such personal service has not been made, shall also be then filed. [Jurisdiction of court — Judgment and decree.] Upon the completion of said publication, said court shall have jurisdic- tion to inquire into and determine the loss, injury or destruc- tion of such minutes, records, seal, assessment book, stock journal, stock ledger, certificate book, certificates of stock or bonds, or other papers and documents, and to fix and determine by its judgment or decree, the ownership of said certificates of stock or bonds and the persons entitled thereto, and to direct such corporation to restore its records, seal, assessment book, stock journal, stock ledger, certificate book, certificates of stock or bonds or any other paper or record so lost, injured or destroyed, and to issue new bonds or cer- tificates of stock or other paper or document to any person or persons to whom the same may belong or who may be entitled thereto, as determined by the judgment of the court. 223 § 365 CIVIL CODE. [Div.I.Pt.IV. [Unknown owners — Sale of stock for delinquent assess- ments.] Any stock, bond or other paper, the ownership of which cannot be determined, shall be found by the court, by its judgment; to belong to unknown owners, and in all pro- ceedings of such corporation, including proceedings for assessment of stock, and the collection of such assessment, and the payment of dividends, and notice of sale and sale for delinquent assessments, said stock or dividends shall be so designated as belonging to unknown owners, without giv- ing the name of the owner thereof or the number of the certificate or series or issue. History: Enacted June 18, 1906, Stats, and Amdts. 1906, pp. 84-86, Kerr's Stats, and Amdts. 1906-7, pp. 408, 409. In effect immediately. 224 Tit.I,ch.III,art.II.] RECORDS, KEEPING. §377 ARTICLE II. RECORDS. § 377. Records — Of what, and how kept. [Record must embrace what.] § 378. Other records to be kept by corporations for profit, and others. § 377. RECORDS— OF WHAT, AND HOW KEPT. All cor- porations for profit are required to keep a record of all their business transactions; a journal of all meetings of their directors, menabers, or stockholders, with the [1] time and place of holding the same, [2] whether regular or special, and if special, [3] its object, [4] how authorized, and [5] the notice thereof given. The record must embrace [1] every act done or ordered to be done; [2] who were present, and [3] who absent; and, if requested by any director, member, or stockholder, [4] the time shall be noted when he entered the meeting or obtained leave of absence therefrom. On a similar request, [5] the ayes arid noes must be taken on any proposition, and a record thereof made. On similar request, [6] 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, stockholder, or creditor of the corporation. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 63 C. 483, 484 (miscited); 76 C. 24, 25, 26, 17 P. 940, 941 (ap- plied); 78 C. 629, 633, 21 P. 373, 374 (referred to); 94 C. 546, 549, 29 P. 1105, 1106 (applied); 107 C. 629, 636, 40 P. 1047 (cited, cor- porations for profit must keep journal of all meeting's); 135 C. 624, 625, 87 A. S. 156, 67 P. 1050 (construed and applied); 146 C. 219, 223, 79 P. 889, 890 (construed); 5 C. A. 614, 621, 91 P. 109 (exhibits and records of corporation are admissible in evi- dence); 45 F. 518, 526 (referred to); 138 U. S. 483, 484, 34 L. ed. 1031, 1032 (applied). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Kerr's C. C. — 8 225 § 378 CIVIL CODE. [Div.I.Pt.IV. §378. OTHER RECORDS TO BE KEPT BY CORPORA- TIOIVS FOR PROFIT, AND OTHERS. In addition to the recoi-ds required to be kept by the preceding section, corpo- rations for profit must keep a book, to be known as the "Stock and Transfer Book," in which must be kept [1] a record of all stocks; [2] the names of the stockholders or members, alphabetically arranged; [3] instalments paid or unpaid; [4] assessments levied and paid or unpaid; [5] a statement of every alienation, sale, or transfer of stock made, the date thereof, and by and to whom; and [6] all such other records as the by-laws prescribe. Corporations for relig-ions and bonevolent purposes must provide in their by-laws for such records to be kept as may be necessary. Such stock and transfer book must be kept open to the inspection of any stockholder, member, or creditor. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 107 C. 447, 453, 40 P. 542 (referred to); 107 C. 629, 636. 40 P. 1047 (construed and applied); 146 C. 219, 223, 79 P. 889, 890 (referred to); 2 C. A. 638, 639, 84 P. 270 (construed and applied, in connection with §14, art. XII, of the constitution, and held to authorize an inspection of thfe books of the corporation). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 226 Tit.I,ch.III,art.III.] EXAMINING AFFAIRS. §§ 382, 383 ARTICLE III. EXAMINATION OF CORPORATIONS, ETC. [This article was taken from the Stautes of 1850, §§ 29, 30, p. 350.] § 382. Examination into affairs of corporation, how made by officers of state. § 383. Examination made by legislature. § 384. Chapter and article may be repealed [repealed]. §382. EXAMINATION INTO AFFAIRS OF CORPORA- TION, HOW MADE BY OFFICERS OF STATE. The attorney- general or district attorney, whenever and as often as required by the governor, must examine into the affairs and condition of any corporation in this state, and report such examination, in writing, together witli a detailed statement of facts, to the governor, who must lay the same before the legislature; and for that purpose the attorney-general or district attorney may administer all necessary oaths to the directors and officers of any corporation, and may examine them on oath in relation to the affairs and condition thereof, and may examine the books, papers, and documents belong- ing to such corporation, or appertaining to its affairs and condition. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 72 C. 21, 23, 13 P. 48, 49 (referred to in discussion). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §383. EXAMINATION MADE BY THE LEGISLATURE. 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 committee appointed by the legislature, or either branch thereof, may administer all necessary oaths to the directors, officers, and stockholders of such corporation, and may examine them on oath in rela- tion to the affairs and condition thereof; and may examine 227 § 384 CIVIL CODE. [Div.I,Pt.IV. the safes, books, papers, and documents belonging to such corporation, or pertaining to its affairs and condition, and compel the production of all keys, books, papers, and docu- ments 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. History: Enacted March 21, 1872. 1 C. A. 61, 67, 81 P. 748 (cited as to legislative power of ex- amination). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §384. CHAPTER A?fD AKTK LE MAY BE REPEALED. [REPEALED.] Section three hundred and eighty-four of the Civil Code is hereby repealed; provided however, that this shall not be deemed to repeal or otherwise affect section four hundred and four of said code; and provided further that no rights acquired under the provisions of said section three hundred and eighty-four shall be affected hereby, but the same shall be continued in force under the provisions of said section four hundred and four. History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, lield unconstitutional, see history, § 4 ante; repealed Marcli 18, 1907, Stats, and Amdts. 1907, p. 578, 'Kerr's Stats, and Amdts. 1906-7, p. 410. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. 228 Tit.I,ch.III,art.IV.] FRANCHISE, SALE OF. §§ 388, 389 ARTICLE IV. JUDGMENT AGAINST AND SALE OF CORPORATE PROPERTY. S 388. Franchise sold under execution. § 3S9. Purchaser to transact business of corporation. § 390. Purchaser may recover penalties, etc. § 391. Liabilities same as before sale. § 392. Redemption. § 393. Sale, when made. § 388. FRANCHISE SOLD UNDER EXECUTION. For the satisfaction of any judgment against any person, company, or corporation having any franchise other than the franchise of being a corporation, such franchise, and all the rights and privileges thereof, may be levied upon and sold under execu- tion, in the same manner, and with the same effect, as any other property. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 208; Feb. 23, 1897, Stats, and Amdts. 1897, p. 16; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 409. See Kerr's Cyc. C. C. for 8 pars, annotation. 80 C. 338, 341, 22 P. 254, 255 (applied); 86 C. 279, 283, 24 P. 1032, 1033 (referred to); 98 C. 311, 313, 33 P. 199 (construed and applied). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §389. PURCHASER TO TRANSACT BUSINESS OF COR- PORATION. The purchaser at the sale must receive a cer- tificate of purchase of the franchise, and be immediately let into the possession of all property necessary for the exercise of the powers and the receipt of the proceeds thereof, and must threafter conduct the business of such corporation, with all its powers and privileges, and subject to all its liabilities, until the redemption of the same, as hereinafter provided. History: Enacted March 21, 1872. 229 §§ 390-393 CIVIL CODE. [Div.I.Pt.IV. §390. PURCHASER MAY RECOVER PENALTIES, ETC. The purchasei' or his assignee is entitled to recover any pen- alties imposed by law and recoverable 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 corporation for the purpose of any action necessary to recover the same. A recovery for damages or any penalties thus had is a bar to any subsequent action by or on- behalf of the corporation for the same. Hi.story: Enacted Marcli 21, 1872. § 391. LIABILITIES SAME AS BEFORE SALE. The per- son, company, or corporation whose franchise is sold, as in this article provided, in all other respects retains the same powers, is bound to the discharge of the same duties, and is liable to the same penalties and forfeitures, as before such sale. Hi-story: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 409. §392. REDEMPTION. Redemption from any such sale may be had as provided in the Code of Civil Procedure in the case of redemptions from sales of real estate on execu- tion. History: Enacted Marcli 21, 1872, amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see liistory, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 409. As to many miscellaneous matters affecting- corporations gen- erally, see note § 283, ante. §393. SALE, WHERE MADE. The sale of any franchise under execution 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, is situated. 230 Tit.I.ch.IV.] EXTENSION, DISSOLUTION. §§399,400 History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 209; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante; amendment re-enacted Marcli 20, 1905, Stats, and Amdts. 1905, p. 409. CHAPTER IV. EXTENSION AND DISSOLUTION OF CORPORATIONS. § 399. Proceedings on disincorporation [repealed]. § 400. Corporations, directors trustees of creditors, when dis- solved, except. § 401. Extension of corporate existence, how made— Certificate and certified copy, filing of. § 402. How corporations may continue their existence [re- pealed]. § 403. Title I to apply to all Corporations, with certain excep- tions [repealed]. §399. PROCEEDINGS ON DISINCORPOBATION (re- pealed). Hi.story: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante; repeal re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 563. See Kerr's Cyc. C. C. for 6 pars, annotation. 84 C. 327, 365, 366, 367, 18 A. S. 192, 24 P. 121, 129, 130, 10 L. 627 (referred to); 108 C. 431, 436, 41 P. 477 (referred to). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §400. CORPORATIONS, DIRECTORS TRUSTEES OF CREDITORS, WHEN DISSOLVED, EXCEPT. Unless other persons are appointed by the court, the directors or managers of the affairs of a corporation at the time of its dissolution are trustees of the creditors and stockholders or members of the corporation dissolved, and have full power to settle the affairs of the corporation. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held vinconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 563. 231 § 401 CIVIL CODE. [Div.T.Pt.TV. See Kerr's Cyc. C. C. for 7 pars, annotation. 84 C. 327, 358 (referred to), 365 (cited), 366, 367 (construed), 369, 370 (referred to), 374 (construed with section 564 C. C. P.), 380 (referred to), 18 A. S. 192, 24 P. 121, 127, 129, 130, 131, 132, 134, 10 L. 627; 100 C. 105, 119, 34 P. 492 (referred to); 101 C. 135, 147, 148, 149, 35 P. 549 (construed and applied); 150 C. 575, 580, 581, 89 P. 335 (this provision is applicable in all cases of dissolution, wliether voluntary or involuntary). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §401. EXTENSION OF CORPORATE EXISTENCE, HOW MADE. Every corporation heretofore or hereafter formed, and existing under the laws of this state, 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 the date of such extension. Such extension may be made at any meeting of the stockholders, or members, called by the directors especially for considering the subject, if voted for by stockholders representing two-thirds of the capital stock; or by two-thirds of the members where there is no capital stock; or may be made upon the written assent of two-thirds of the members or of stockholders representing two-thirds of the capital stock. [Certificate filed witli county clerk and secretary of state.] A certificate of such vote or assent shall be signed and sworn to by the president and secretary and by a majority of the directors of the corporation, and filed in the office of the county clerk where the original articles of incorporation were filed, and a copy certified by such clerk shall be filed in the office of the secretary of state, and thereupon the term of existence of the corporation shall be extended for the period specified in such certificate. The fees for certifying such cer- tificate and filing the same and the certified copy thereof, shall be the same as those prescribed by law for certifying and filing articles of incorporation in such cases. [Franchises.] In no event shall such extension be con- strued to prolong or extend the duration of any franchise or privilege heretofore granted to any coi'poratlon or joint stock company by special legislative act, or by the munici- pal authorities of any county, city, city and county, town, or 232 Tit.I.ch.IV.l EXTENSION, HOW MADE. §§402,403 Other political subdivision of this state, beyond the term fixed by the provisions of the act, ordinance or resolution conferring such privilege or franchise, or beyond the term fixed for the maximum period of existence of such corpora- tion or joint stock company by laws in force and governmg the formation and organization thereof at the time such corporation or joint stock company was formed or organized. History: Enacted March 21, 1872; amended March 30. 1874 Code Amdts. 1873-4, p. 209; by Code Commission, Act March 16 1901, Stats, and Amdts. 1900-1, p. 353, ^eld unconstitutiona^. see history § 4 ante; amendments re-enacted March 21, 1905 Stats and Imdts. 1905. p. 564; amended March 18, 1907, Stats and Imdtt 1907, p. 344, Kerr's Stats, and Amdts. 1906-7, p. 410. In effect immediately. See Kerr's Cyc. C. C. for 2 pars, annotation. ., 109 C. 571, 582, 42 P. 225 (construed and applied), 122 C. 66a. .^39 55 P. 10 (referred to). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. ^. ^ r^f Ex^;nsion of corporate existence not to exceed a term of fifty years, provided for by the amendment to above section by act o^Ma^ch 18, 1907, held in conflict with Art. XII, § 7 of the constitution and therefore void, in Boca Mill Co. vs. Curry, 97 P. 1117. §402. HOW CORPORATIONS MAT CONTINUE THEIR EXISTENCE (repealed). History: Enacted March 21. 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 209. See Kerr's Cyc. C. C. for 2 pars, annotation. 122 C. 335, 336, 339, 55 P. 10 (construed). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §403. TITLE I TO APPLY TO ALL CORPORATIONS, WITH CERTAIN EXCEPTIONS (repealed). History: Enacted March 21, 1872; repealed March 20, 1905. Stats, and Amdts. 1905, p. 410. See Kerr's Cyc. C. C. for 3 pars, annotation 109 C. 571, 582, 42 P. 225 (referred to); 122 C. 335, 339. 55 ^ AS t^o^many miscellaneous matters affecting corporations gen- erally, see note § 283. ante. 233 §§403[a],404 CIVIL CODE. [Div.I.Pt.IV. CHAPTER V. GENERAL PROVISIONS AFFECTING CORPORATIONS. S 40.3 [a]. General provisions apply, when — Special provision.s apply, when. § 404. Legislature may amend, etc., corporation laws and dis- solve corporations. §403[a]. GENERAL THOVISIONS APPLY, WHEN SPE- CIAL PROVISIONS APPLY, WHEN. The provisions of this title are applicaljle to every corporation, unless such corpo- ration is excepted from its operation, or unless a special pro- vision is made in relation thereto inconsistent with some provisions in this title, in which case the special provision prevails. Hi.«ttory: Enacted Marcli 21. 1905, Stats, and Amdts. 1905, p. 410. §404. LEGISLATURE MAY AMEND, ETC., CORPORA- TION LAWS AND DISSOLVE CORPORATIONS. The legis- lature may at any time amend or repeal this part, or any title, chapter, article, or section thereof, and dissolve all corporations created thereunder; but such amendment or repeal does not, nor does the dissolution of any such corpo- ration, take away or impair any remedy given against any such corporation, its stockholders or officers, for any liability which has been previously incurred. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 353, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 410. See Kerr's Cyc. C. C. for 15 pars, annotation. As to dissolution of corporation, see 2 L. 549, 8 L. 858, 9 L. 33, 34; 12 A. D. 239-243, 40 A. D. 737-740. As to effect of dissolution of corporation, whether by repeal of its charter or otherwise, see 7 A. S. 717-726. As to effect of proceedings, by dissolution, upon rights of action, see 15 L. 627-629. 234 Tit.I,ch.VI.] FOREIGN CORPORATIONS. § 405 As to equitable jurisdiction, see 9 L. 650. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to restraining exercise of corporate franchise, see 9 L. 273. CHAPTER VI. FOREIGN CORPORATIONS. [This chapter is a codification, Act April 3, 1880 (Stats. 1880, p. 21), and Act March 17, 1899 (Stats, and Amdts. 1899, p. Ill), amending Act April 1, 1872, Stats. 1871-2, p. 826. See 120 C. 156, 47 P. 874, 52 P. 302, 40 L. 350.] § 405. Designation of person on whom process may be served — Service on the secretary of state, when valid. § 406. Foreign corporations, statute of limitations in favor of — Proof of corporate existence — Change of designation. § 407. Foreign railroads, rights in this state. § 408. Foreign corporations to file certified copies of articles of incorporation. § 409. Foreign corporations, fees to be paid by, on filing certi- fied copies of articles of incorporation. § 410. Foreign corporations, penalty for failure to file certified copies of articles of incorporation. §405. DESIGNATION OF PERSON ON >VHOM PROCESS MAY BE SERVED. SERVICE ON SECRETARY OF STATE VALID, WHEN. Every corporation other than those created by or under the laws of this state must, at the time of filing the certified copy of its articles of incorporation, file in the office of the secretary of state a designation of some person residing within the state upon whom process issued by authority of or under any law of this state may be served. A copy of such designation, duly certified by the secretary of state, is sufficient evidence of such appointment. Such process may be served on the person so designated, or, in the event that no such person is designated, then on the secretary of state, and the service is a valid service on such corporation. History: Added by Code Commission, Act March 21, 1901, Stats, and Amdts. 1900-1, p. 353, held unconstitutional; see his- 235 § 406 CIVIL CODE. • [Div.I.Pt.lV. tory, § 4 ante; re-enacted March 21, 1905, Stats, and Anidts. 1905, p. 630. A codification of § 1 Act March 17, 1899; see introductory note to this chapter; amended March 18, 1907, Stats, and Amdts. 1907, p. 558, Kerr's Stats, and Amdts. 1906-7, p. 410. See Kerr's Cyc. C. C. for 21 pars, annotation. As to distinction between words "writ" and "process," sec Kerr's Cyc. C. C. P. § 17 par. 6 and note. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. §406. FOREKiX (OKrOKATlON, STATUTE ()F LIMITA- TIONS IN FAVOR OF— PROOF OF CORPORATE EXIST- ENCE—CHANGE OF DESIGNATION. Every corporation which complies with the provisions of this chapter is there- after entitled to the benefit of the laws of this state limiting the time for the commencement of civil actions, but no cor- poration not created by or under the laws of this state is entitled to the benefit thereof, nor can any such corporation maintain or defend any action or proceeding in any court of this state until the corporation has complied with the pro- visions of the preceding section. [Proof of foreign corporation.] In any action or proceed- ing instituted against any body styled as a corporation, but not created by nor under the laws of this state, evidence that such body has acted as a corporation, or employed methods usually employed by corporations, must be received by the court for the purpose of proving the existence of such corporation, the sufficiency of such evidence to be determined by the court with like effect as in other cases. [Designation for service — Revocation, etc. — New designa- tion.] Every corporation which has complied with the laws then in force, requiring it to make and file a designation of the person upon whom process against it may be served, need not make or file any further designation. Any designation heretofore or hereafter made may be revoked by the filing by the corporation with the secretary of state of a writing stating such revocation. Within forty days after the death or removal from the state of any person designated by the corporation, or after the revocation of the designation, the 236 Tit.I.Ch.VI.] FOREIGN RAILROADS. § 407 corporation must make a new designation, or be subject to the provisions and penalties of this chapter. Historj-: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 353, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, pp. 630-631; see introductory note to this chapter. See Kerr's Cyc. C. C. for 11 pars, annotation. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Construction of statute is strict. — See Kerr's Cyc. C. C. § 405 and note par. 12. Interstate commerce — Interference with not permitted. — See Kerr's Cyc. C. C. § 405 and note par. 15. Limitations — How pleaded. — See 'Kerr's Cyc. C. C. P. § 458 and note. § 407. FOREIGN RAILROADS, RIGHTS IN THIS STATE. Every railway or other corporation organized for the pur- pose of carrying freight or passengers under or by virtue of the laws of the United States, or of any state or territory thereof, may build railroads, exercise the right of eminent domain, and transact any other business which it might do if it were created and organized under or by virtue of the laws of this state, and has the same rights, privileges, and immunities, and is subject to the same laws, penalties, obli- gations, and burdens as if created or organized under and by virtue of the laws of this state. Nothing contained in this section shall be construed to exempt any corporation from any duty or liability imposed upon it by any of the provisions of this chapter. History: Enacted by Code Commisison, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 354, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 631; see the introductory note to this chapter. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to statute conferring right of eminent domain on foreign corporation, see Kerr's Cyc. C. C. § 407, note. 237 §§408,409 CIVIL CODE. [Div.I.Pt.IV. §408. FOREIGN (OKPORATION MUST FILE CERTI- FIED COPY OF ARTKLES OF INTORPORATIOX [IX OFFICE OF SECRETARY OF STATE]. Every corporation organized under the laws of another state, territory, or of a foreign country, which [1] is now doing business in this state, or [2] is maintaining an office herein, or [3] which shall hereafter do business in this state, or [4] maintain an office herein, or [5] which shall enter this state for the purpose of doing business herein, must file in tlio office of the secre- tary of state of the state of California [1] a certified copy of its articles of incorporation, or [2] of its charter, or [3] of the statute or statutes, or [4] legislative, or executive, or governmental act or acts creating it, in cases where it has been created by charter, or statute, or legislative, or execu- tive, or governmental act, duly certified by the secretary of state, or other officer authorized by the law of the jurisdic- tion under which such corporation is formed to certify such copy, and [5] a certified copy thereof, duly certified by the secretary of state of this state, [a] in the office of the county clerk of the county where its principal place of business is located, and [b] also where such corporation owns property. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 631; amended March 18, 1907, Stats, and Amdts. 1907, p. 559, Kerr's Stats, and Amdts. 1906-7, p. 411. See Kerr's Cyc. C. C. for 2 pars, annotation. As to failure to designate agent, see Kerr's Cyc. C. C. § 405 and note pars. 2, 3. As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. Business — What constitutes doing. — See Kerr's Cyc. C. C. § 405 and note par. 5. §409. FOREIGN CORPORATIONS, FEES TO BE PAID BY, 0> FILING (ERTIFIEI) COPIES OF ARTKLES OF INCORPORATION. For filing and issuing a certified copy as required in section four hundred and eight of this code, corporations formed under the laws of another state, or of a territory, or of a foreign country, must pay the same fees 238 Tit.I.ch.VI.] FAILURE TO FILE COPIES. § 410 as are paid by corporations formed under the laws of this state. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 631; see introductory note to this chapter. As to many miscellaneous matters relating to corporations, see note, § 283, ante. Doing business — As to wliat constitutes. — See Kerr's Cyc. C. C. § 405 and note par. 5; 3 W. & P. 2155. Same — Single or isolated transaction by foreign corporation does not constitute. — See 10 L. N. S. 693; 3 W. & P. 2155. § 410. FOREIGX CORPORATIOXS, PENALTY FOR FAIL- URE TO FILE CERTIFIED COPIES OF ARTICLES OF INCORPORATION^. Every corporation organized under the laws of another state, territory, or of a foreign country, which shall neglect or fail, within ninety days from the tak- ing effect of this section, to comply with the conditions of sections four hundred and eight and four hundred and nine of this code, shall be subject to a tine of not less than five hundred dollars, to be recovered in any court of competent jurisdiction; and it is hereby made the duty of the secretary of state, as he may be advised that corporations are doing business in contravention of sections four hundred and eight and four hundred and nine of this code, to report the fact to the governor, who shall instruct [1] the district attorney of the county wherein sucli corporation has its principal place of business, or [2] the attorney-general of the state, or both, as soon as practicable, to institute proceedings to recover the fine provided for in this section, and the amount so recovered must be paid into the state treasury to the credit of the general fund of the state; [Further penalty, inability to maintain suits.] In addition to which penalty, no foreign corporation which shall fail to comply with sections four hundred and eight and four hun- dred and nine of this code can maintain any suit or action in any of the courts of this state until it has complied with said sections; provided, that any such corporation which, prior to the eighth day of March, nineteen hundred and one, 239 § 410 CIVIL CODE. [Div.I,Pt.IV. shall have complied with the provisions of the act entitled "An act to amend 'An act in relation to foreign corporations,' approved April first, eighteen hundred and seventy-two," approved March seventeenth, eighteen hundred and ninety- nine, is exempted from the provisions of this section and the two sections next preceding. History: Enacted March 21, 1905, Slats, and Amdts. 1905, pp. 631, 632; see introductory note to this chapter. 240 Tit.II.ch.I.] INSURANCE COMPANIES. § 414 TITLE II. INSURANCE CORPORATIONS. Chapter I. General Provisions, §§ 414-421[a]. II. Fire, Marine, and Title Insurance Companies, §§ 424-432. III. Mutual Life, Health, and Accident Insurance Cor- porations, §§437-452. IV. Mutual Benefit and Life Associations, §§ 452a, 453. V. Corporations to Discover Fire and Save Property and Human Life from Destruction Thereby, §§ 453a-453c. VI. Life, Health, Accident, and Annuity or Endow-' ment Insurance on the Assessment Plan, §§ 453d-453p. CHAPTER I. GENERAL PROVISIONS. § 414. Subscription to capital stock opened, and how collected. § 415. Purchase and conveyance of real estate. [What property may be held; what must be sold within Ave years.] § 416. Policies, ho^v issued and by whom signed. § 417. Dividends, of what and when declared. § 418. Directors liable for loss on insurance in certain cases. § 419. Certain insurance companies to have capital stock of two hundred thousand dollars [repealed]. § 420. Certain insurance companies to have capital stock of one hundred thousand dollars [repealed]. § 421. Investment of capital and accumulations of certain cor- porations — Report of officers [repealed]. § 421 [a]. Same— Same. §414. SUBSCEIPTIONS TO CAPITAL STOCK OPENED, AND HOW COLLECTED. After the secretary of state issues the certificate of incorporation, as provided in article one, chapter one, title one, of this part, the directors named in the articles of incorporation must proceed in the manner 241 § 414 CIVIL CODE. [Div.I,Pt.IV. specified, or in their by-laws, or if none, then in such man- ner as they may by order adopt, to open books of sub- scription to the capital stock then lyisubscribed, and to secure subscriptions to the full amount of the fixed capital; to levy assessments and instalments thereon, and to collect the same, as in chapter two of title one provided. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 354, held unconstitutional, see history, § 4 ante. INSURANCE — GENERALLY. As to insurance in general, see Kerr's Cyc. C. C. §§ 2527-2766 and notes. Accident, death, evidence of cause of. — See 50 A. S. 441. Accident policy — Cause of loss or death under. — See 3 L. 443; 9 L. 371; 9 L. 687; 13 L. 263; 17 L. 753; 30 L. 211. Same — What constitutes an accident within an accident pol- icy.— See 30 L. 206-211. Accidental means, what is injury or death by. — See 54 A. R. 302; 8 A. S. 763. Action on contract of — As to generally. — See 4 A. C. 1045; 5 A. C. 402; 7 A. C. 809; 10 A. C. 821; 4 L. N. S. 870; 5 L. N. S. 88; 10 L. N. S. 264; 12 L. N. S. 907; also "Loss and its adjust- ment," this note. Same — Constitutionality of statute providing- damages or penalty for refusal or failure of insurance company to pay loss. — See 5 A. C. 405. Same — Defense of ultra vires by insurance company in an action on a policy. — See 4 A. C. 1046. Same — Right of noncomplying foreign insurance company to enforce domestic contract. — See 9 A. C. 338. Same — Submission to arbitration as condition precedent to suit on insurance contract, when. — See 8 A. C. 171; also "Arbi- tration clause," this note. Acts and declarations of agent — Liability of principal for. — See 2 A. C. 99; see also 1 A. C. 723; 3 A. C. 980; 3 A. C. 1145; 10 A. C. 92; 10 A. C. 732; see also "Authority of insurance agent," this note. Adjustments of, when may be opened. — See 35 A. R. 775. Against fire. — See "Fire" Insurance," this note. Agents — Notice to. — See notes §§ 18, 19, ante. Same — Stipulations that persons procuring policies must be deemed agents of the assured. — See 53 A. R. 201. Same — Waiver or estoppel by. — See 9 L. N. S. 1084; also "Estoppel and waiver" this note. 242 Tit.II,ch.I.] INSURANCE, GENERALLY. § 414 Alienation, recovery by insurer, retaining a lien or insurable interest after. — See 59 A. D. 304. Arbitration clause — Agreements to submit disputes respecting to.— See 2 A. S. 565. Same — Effect of failure to arbitrate. — See 4 L. N. S. 288; also "Action on Contract," this note. Same — Submission to as a condition precedent. — .See 10 L. 558; 11 L. 598. Assessrnents and premiums. — See "Premiums and assess- ments," this note. Assignment of, when valid and wliat constitutes. — See 56 A. D. 747. Autliority of insurance agents. — See "Acts and declarations of agent," this note. Same — As to generally, see 2 A. C. 299; 1 L. 217; 1 L. 482; 1 L. 563; 7 L. 217; 8 L. 72; 10 L. 60*9; 11 L. 341; 20 L. 277; 21 L. 342. Same — Effect of limitations on agent's authority to waive conditions in insurance policy. — See 2 A. C. 112; 9 A. C. 380. Same — Employment of clerk by. — See 10 L. 69. Same — Insurance agent is agent of the assured when. — See 20 L. 277. Same — ^Knowledge of agent — Imputed to company when. — See 1 L. 217. Same — Same — For notice to company when. — See 1 L. 563; also 21 L. 342. Same — Liability of agent to insurance company for loss oc- casioned by disobedience of Instructions. — See 8 L. 72. Same — Right of insurance agent to commissions on renewal premiums after termination of agency. — See 7 A. C. 1169. Same — Subagent, effect of notice to. — See 21 L. 342. Beneficiary— Power of insured to destroy rights of. — See 49 L. 737-753. Same — Change of. — See 5 L. 95; 15 L. 350; 63 L. 862. Benefit association, as an insurance company. — See 38 L. 33-54. Blood relative, insurable interest in life of. — See "Insurable interest," this note. By-laws — As to, generally, 1 L. N. S. 1065; 8 L. N. S. 521; 12 L. N. S. 504. Cancellation of policy or contract. — See 3 L. N. S. 114; 7 L. N. S. 1163; 12 L. N. S. 881. Cause of loss or death. — As to, generally, 3 L. 486; 6 L. 495; 9 L. 685; 13 L. 838; 26 L. 267; 68 L. 282. Same — Explosion. — See 19 L. 594-598; 29 L. 359. Certificate of magistrate, necessity for, and waiver of. — See 23 A. S. 258. Child, insurable interest in life of. — See "Insurable interest," this note. 243 § 414 CIVIL CODE. [Div.I.Pt.IV. Concealment or misrepresentations, when avoids policy. — See 35 A. R. 629. Conclusiveness of proof of loss or death, as against insured or beneficiary. — See 44 L. 846-860. Condition — As to keeping and producing books and papers. — See 51 L.. 699-713. Same — Against keeping petroleum or other inflammable fluids, when violated. — See 37 A. R. 650. Same — Requiring payment before delivery of policy, waiver of.— See 57 A. R. 514. Consent of person whose life is insured as a condition prece- dent.— See 56 L. 586-591. Constructive total loss of insured building. — See 56 L. 784- 792. Contract of insurance — Irt general, see 2 A. C. 17; 2 A. C. 99; 9 A. C. 916. Same — Divisibility of insurance contracts. — See 2 A. C. 22. Same — Validity of oral contract of insurance. — See 6 A. C. 624. Same — When contract of insurance is complete. — See 9 A. C. 220; 69 A. S. 143. "Cyclone," meaning of in insurance policy. — See 8 L. N. S. 308; 2 V7. & P. 1809. Death, proof of. — See "Loss and its adjustment," this note. Description of insured property, mistakes in. — See 16 A. D. 462. Determination as to, by tribunals of association. — See 49 L. 363, 372. Distribution of assets of insolvent insurance company — As to who are distributees. — See 38 L. 97-100. Same — Contract right. — See 38 L. 110. Same — Priorities. — See 38 L. 103-107. Same — Special funds, reinsurance and stockholder's liabil- ity. — See 38 L. 108-110. Same — Valuation and adjustment of claims. — See 38 L. 100- 102. Distribution of surplus upon dissolution of mutual insurance company. — See 3 L. N. S. 653. Divorce as affecting wife's right to insurance upon husband's life.— See 50 L. 552-554. Duty of insured to submit to examination and furnish in- formation. — See 52 L. 424-427, Effect of extra hazards. — See 11 L. 299. Effect of receipt of insurance money. — To mitigate damages for personal injuries. — See 67 L. 87. Same — To mitigate damages for wrongful death. — See 67 L. 92. 244 Tit.II.ch.I.] INSURANCE, GENERALLY. § 414 Effect of stipulations seeking to niake agent of insurer agent of the assured. — See 77 A. D. 724. Entirety of, policy void as to part of property wliether void in toto. — See 74 A. D. 498; 38 A. R. 230. Estoppel -and waiver — As to generally, see 1 L. 217; 1 L. 222; 1 L. 256; 1 L. 563; 7 L. 81; 8 L. 74; 9 L. 317; 10 L. 558-560; 11 L. 599; 2 L. N. S. 548; 3 L. N. S. 444; 4 L. N. S. 421; 4 L. N. S. 607; 4 L. N. S. 758; 10 L. N. S. 136; 10 L. N. S. 1064-1089. Same — Knowledge of fraud of insurance agent. — See 5 L. 646; 16 L. 33-38. Same — Rendition of policy as waiver of mistake or fraud of insurer or its agent. — See 67 L. 705-744. Estoppel by application made out by agents. — See 9 A. S. 229. Explosion, as cause of loss or death. — See 19 L. 594-598: 29 L. 359. Expulsion from society, effect of on insurance. — See 25 L. 149. Extra hazards, effect of on policy of insurance. — See 11 L. 299. "Extrahazardous," meaning of in insurance policy. — See 97 A. D. 798, 3 W. & P. 2624. Extrinsic evidence to control or vary policy. — See 2 A. D. 364. False representations as to previous application for insurance, effect on policy. — See 55 L. 122-138. Fidelity, nature of, and rules governing. — See 100 A. S. 774. Fire Insurance — Alterations in premises, when avoid policy. — See 26 A. S. 407. Same — Change of title, sale by one partner to another, whether amounts to. — See 49 A. R. 22; 52 A. R. 442. Same — Conditions as to use of premises, construction of.- — - See 30 A. S. 731. Same — Conditions requiring notice of other insurance to be indorsed on the policy. — See 64 A. D. 221. Same — Forfeiture, hazard, increase of, what results in. — See 66 A. S. 691. Same — Insurable interest must exist under policj', when. — See 52 L. 330-341. Same — Loss by, what included in. — See 45 A. D. 657. Same — Same— Total, what is. — See 59 A. S. 810. Same — On property illegally used, validity of. — See 40 L. 845- 848. Same — Overvaluation of insured property, effect of. — See 29 A. D. 616; 25 A. R. 74. Same — Prohibited risks, conditions against, when broken. — See 33 A. R. 781. Same — Right of insurer to rebuild or repair. — See 11 A. R. 57. 245 § 414 CIVIL CODE. [Div.I,Pt.IV. Same — Subsequent insurance, when avoids. — See 20 A. R. 319. Same — -Use or keeping of forbidden materials, when avoids policy. — See 24 A. R. 150. Same — Warranties, answers concerning- watchmen, when deemed to be. — See 33 A. R. 832. Same — What property included within policies respecting. — See 22 A. R. 253. Same — When remains in force after removal of property. — See 33 A. R. 147. First and last days in computing time on. — See 49 L. 208. "For whom it may concern." — See 16 A. D. 323. Foreign companies — Restriction on business of, etc. — See 20 L. 405-409; 24 L. 298-312. - Same — Revocation of license of on account of removal of action to Federal court. — See 1 L. N. S. 1019. Same — Suits by or on behalf of — Effect of location of insured property within the state to prevent action by foreign insur- ance company on contract made in another state. — See 9 L. N. S. 417. Forfeiture of policy — As to generally, see 2 A. C. 99; 8 A. C. 497. Same — Acts and knowledge of agents, when prevent. — See 9 A. S. 236. Same — And suspensions — As to, generally. — See 1 L. 256; 2 L. 118; 4 L. 538; 5 L. 806: 9 L. 189; 9 L. 317; 14 L. 283; 26 L. 112; 49 L. 208; 50 L. 111. Same — By assignor's acts, effect on assignee. — See 18 L. 136. Same — Discontinuance of cause of, whether revives. — See 80 A. S. 305. Same — Estoppel to insist upon because of knowledge of agent. — See 26 A. R. 370. Same — Paid-up and non-forfeited policy of life insurance. — See 15 L. 449-455. Same — Silence or failure to act by insurer after notice of breach of condition in policy, as waiver of forfeiture for breach. — See 8 A. C. 500. Funds against foreign company. — See 20 L. 409. Habits and occupation as affecting policy or contract. — See 5 L. N. S. 283. "Hazardous" and "extrahazardous," nneaning of in insurance policy. — See 97 A. D. 798; 3 W. & P. 2624; 4 W. & P. 3224. Same — Same — Prohibited articles kept in the ordinary course of business. — See 24 A. R. 150. Incontestable clause, as to generally, see 42 L. 247-261; 2 L. N. S. 821; 5 L. N. S. 747; 6 L. N. S. 1039; 6 L. N. S. 1064. Increase of risk by change of companies of person. — See 10 L. 383. 246 Tit.II.ch.L] INSURANCE, GENERALLY. § 414 Incumbrances, conditions ag-ainst.^ — See 1 L. 218; 4 L. 538; 8 L. 73; 20 L. 400. Indemnity insurance — As to, generally, 7 L. N. S. 958; 9 L. N. S. 654; 11 L. N. S. 194; 12 L. N. S. 478. Same — Loss and settlement.— See 6 L. N. S. 562-565; 9 L. N. S. 478. Infants as members of co-operative or assessment company. — See 17 L. 547. Innocent misrepresentations as to health, effect on policy. — See 53 L. 193-205. Insurable interest — In life — As to generally, see 1 L. 238; 2 L. 844; 6 L. 136; 7 L. 217; 12 L>409; 13 L. 434; 19 L. 187. Same — Same — Assig'nment to one within insurable interest. — See "Transfer of policy or interest," this note. Same— Same— Consent of person whose life is insured as a condition precedent.- — See 56 L. 586-591. Same — Same — Defense of want of as affected by incontestable clause.— See 5 L. N. S. 747. Same^Same — "Dependent," who may be considered as a, within restrictions as to benefit of mutual benefit associa- tions. — See 2 L. N. S. 653. • Same — Same — "Family," who is a member of, within contract of benefit society. — See 3 L. N. S. 334. Sam.e — Same — In the life of another, and necessity of. — See 57 A. D. 93; 46 A. R. 189; 52 A. R. 135; 58 A. R. S52. Same — Same — In life of parent or child or otlier blood rela- tive. — See 54 L. 225-233. Same — Same — Insurable interest of creditor in life of debtor. — See 2 L. 844. Same — Same — Right to take life insurance for benefit of stranger. — See 25 L. 627-630. Same — Same — Validity of life insurance for benefit of be- trothed wife. — See 19 L. 187; 53 L. 825. Same — Same — Wife's right to insure life of husband.— See 53 L. 817-825. Same — Same — Same — Promised marriage and irregular mar- riages. — See 52 L. 825. Same — Same — Wager policy on life. — See 6 L. 137; 7 L. 217; 12 L. 409; 13 L. 434. Same — In property — Generally, see 11 L. 598; 43 L. 664; 66 L. 657-662. Same — Same — Of one secondarily liable on obligation where property is primarily charged. — See 9 L. N. S. 490. Same — Same — What is. — See 7 A. D. 42; 20 A. D. 510. Same — Same — -When must exist under fire policies. — See 52 L. 330-341. Insurer — Right to change from assessment to level premium plan.— See 4 A. C. 361; 1 L. N. S. 623. ' 247 § 414 CIVIL CODE. [Div.I.Pt.IV. Interest in proceeds^ — As to, generally, 3 L. N. S. 478; 3 L. N. S. 727; 3 U N. S. 904; 4 L. N. S. 456; 4 L. N. S. 939; 6 L. N. S. 448; 7 L. N. S. 393; 8 L. N. S. 923; 10 L. N. S. 1066; 11 L. N. S. 143; 11 L. N. S. 234; 12 L. N. S. 1206. Knowledge of fraud of insurer's agent, as estoppel or waiver. — See 5 L. 646; 16 L. 33-38. Liability — Of funds held by mutiial benefit societies to the claims of their creditors. — See 6 L. N. S. 235. Same — Of members of mutual fire insurance company — As to generally, see 32 L. 481-508. Same — Of officers of mutual company to members for permit- ting division of funds. — See 2 L. N. S. 165. Life insurance — Agents accepting insurance when they know answers in tlie application are false. — See 7 A. R. 128. Same — Assignee, whether must have an insurable interest. — See 27 A. R. 327. Same — Assignment of policies of. — See 87 A. S. 484. Same — Same — To one having no interest in the life insured. — See 16 A. S. 906. Same — Beneficiary, results of the death of before that of the person whc^e life is insured. — See 11 A. S. 721. Same — Same — When not entitled to sue for. — See 19 A. R. 331. Same — Conflict of laws respecting nonforfeiture of policy. — See 104 A. S. 483. Same- — Death by voluntary exposure to unnecessary danger, hazard, or perilous adventure, what is. — See 12 A. S. 272. Same — Same — In known violation of law. — See 60 A. S. 160. Same — Same — Resulting from a criminal act. — See 21 A. R. 542. Same — Disease existing at time of application, when avoids policy of. — See 3 A. S. 634. Same — Fraud on creditors, whether results from withdrawal by debtor of moneys for procuring. — See 88 A. D. 530. Same — Fraudulent as to creditors, when. — See 29 A. S. 360. Same — Good health, what is within the meaning of the law of.— See 10 A. S. 242. Same — Insurable interest, whether policy may be made pay- able to a person having none. — See 58 A. R. 852. Same — Same— When exists. — See 57 A. D. 93; 52 A. R. 135; 46 A. R. 189. Same — Premiums, nonpayment of due to war. — See 19 A. R. 512. Same — Suicide as a defense. — See 59 A. D. 487; 3 A. R. 454; .19 A. R. 628; 84 A. S. 539; 17 L. 89; 42 L. 253; 63 L. 867; 7 L. N. S. 223; 8 L. N. S. 1124. Same — Same — Insanity as affecting condition in policy as to suicide. — See 35 L. 258-266. Same — To secure debt of insurer, validity of. — See 53 L. 462. 248 Tit.IT,ch.I.] INSURANCE, GENERALLY. § 414 Sam.e— Warranty of sober and temperate habits, what con- stitutes breach of. — See 38 A. R. 615. Same — When regarded as wagering contract becaiise of the small insurable interest. — See 60 A. R. 729. Limitation of actions on policies of — As to generally, see 28 A. S. 583. Same — Effect of clause in policy.- — See 1 L. 847; 3 L. 344; 8 L. 48; 49 L. 208; 63 L. 204; 63 L. 868. Same — When time begins to run. — See 47 L. 697-711. Lloyd's insurance policies — Action on. — See 55 L. 193-203. Location of movable property. — See 26 L. 237-242; 26 L. 26-7. Loss and its adjustment — Actions, enforcing payment — As to generally, see 2 L. 788; 3 L. 525; 20 L. 669; 25 L. 274; 52 L. 721; 61 L. 537, 545; 63 L. 863; 64 L. 615; 66 L. 200-234; 4 L. N. S. 870; 5 L. N. S. 88; 10 L. N. S. 264; 12 L. N. S. 907. Same — Saine — Action on Lloyd policy. — See 55 L. 193-203. Same — Same — Contractional limitation of time. — See 1 L. 487; 3 L. 344; 8 L. 48; 49 L. 208; 63 L. 204; 63 L. 868. Same — Same — Same — When begins to run. — See 47 L. 697- 711. Same — Arbitration. — See 4 L. N. S. 288; 10 L. 558-560: 11 L. 598. Same- — By fire, what included within. — See 23 A. S. 915. Same — ^Cause of loss or death — As to generally, see 3 L. 486; 6 L. 495; 9 L. 685; 13 L. 838; 26 L. 267; 68 L. 288. Same — Same — Explosion. — See 9 L. 594-598; 29 L. 359. Same — Saine — Suicide as a defense. — See 17 L. 89; 42 L. 253; 63 L. 687; 7 L. N. S. 223; 8 L. N. S. 1124. Same — Same — Saine — Insanity as affecting condition as to suicide. — See 35 L. 258-266. Same — Same^Under accident policy. — See 3 L. 443; 9 L. 371; 9 L. 687; 13 L. 263; 17 L. 753; 30 L. 211. Same — Same — Same — What constitutes an accident within ac- cident policy. — See 30 L. 206-211. Same — Same — Voluntary exposure to unnecessary damage. — See 40 L. 432-448. Same — Extent of injury, loss or recovery — Generally. — See 2 L. 845; 15 L. 127; 26 L. 107; 63 L. 866. Same — Same — Constructive total loss of insured building. — See 56 L. 784-792. Sam.e — Same — Insurer's option to rebuild. — See 3 L. 170; 26 L. 853-857. Same — game — Marine insurance. — See 9 L. 831; 20 L. 839. Same — Same — What constitutes total disability. — See 38 L. 529-539. Same — For which insurer is liable. — See 36 A. S. 852. Same — Interest in proceeds — -As to generally, see 3 L. 426; 13 L. 434; 17 L. 438; 19 L. 34; 63 L. 862; 3 L. N. S. 478; 3 L. N. S. 249 § 414 CIVIL CODE. [Div.I,Pt.IV. 727; 3 L. N. S. 904; 4 L. N. S. 456; 4 L. N. S. 939; 6 L. N. S. 448; 7 L. N. S. 393; 8 L. N. S. 923; 10 L. N. S. 1166; 11 L. N. S. 143; 11 L. N. S. 234; 12 L. N. S. 1206. Same — Same — Divorce as affecting wife's right to insurance on husband's life.— See 50 L. 552. Same — Same — "Heirs," wlio are within life policy. — See 30 L. 593-596; 63 L. 856. Same — Same — Legal representative, who are within life pol- icy. — See 30 L. 609. Same — Same — Life insurance as assets of bankrupt or insol- vent.— See 50 L. 33-4 6. Same — Same — Rights of mortgagee. — See 19 L. 321; 25 L. 305; 25 L. 679. Same — Same — Rights of vendor and vendee to proceeds. — See 37 L. 150. Sam.e — Proof of loss or death — As to generally, see 1 L. 217; 3 L. 426; 7 L. 72; 7 L. 81; 8 L. 77; 18 L. 85; 9 L. N. S. 485. Same — Same — Conclusiveness of as against insured or bene- ficiary. — See 44 L. 846-860. Same — Same — Duty of insured to submit to examination and furnish information. — See 52 L. 424-427. Same — Risk and causes of dearth or injury to person. — See 1 L. N. S. 422; 2 L. N. S. 168; 4 L. N. S. 636; 5 L. N. S. 657; 5 L. N. S. 926; 6 L. N. S. 609; 8 L. N. S. 970; 8 L. N. S. 1014; 10 L. N. S. 957. Same- — Risk and causes of loss or injury to property. — See 1 L. N. S. 1095-1098; 8 L. N. S. 308. Same — Submission to arbitration. — See 10 L. 558-560; 11 L. 598; 4 L. N. S. 288. Same— Subrogation. — See 2 L. N. S. 922; 3 L. N. S. 79. Same — Suicide. — See "Cause of loss or death," this title. Loss of status of incorporation as limitation upon powers of insurance company. — See 63 L. 853. Marine Insurance — Collisions, liability for injuries caused by to another vessel by the insured vessel. — See 54 A. D. 787. Same — Deviation by necessity, effect of upon policy. — See 58 A. D. 673. Same — Deviation of vessel, what is and effect of. — See 33 A. D. 60. Same — Goods stowed on deck and jettisoned, M'hen covered by policJ^ — See 86 A. D. 500. Same — Liability for injuries caused by another vessel through collision with the insured vessel. — See 54 A. D. 787. Sam.e — Loss due to neglect to employ a pilot. — See 33 A. D. 599. Same — "Perils of the sea," what are. — See 41 A. D. 281. Same — Seaworthiness, implied wai-ranty of. — See 58 A. D. 671. 250 Tit.IT,ch.T.] INSURANCE, GENERALLY. § 414 Same — Seaworthiness, what is within the meaning of the law. — See 33 A. D. 33. Same — Warranty of seamansliip, what einbraced in. — See 1 A. D. 165. Minor, policy of insurance on life of. — See 57 L. 496-504. Mortgagees — Forfeiture of, as against, for breaches of con- dition. — See 58 A. S. 667. Same — Rights of under an insurance on the mortgaged prop- erty.— See 54 A. D. 693. Mortgagor, right to proceedings. — See 19 L. 321; 25 L. 305; 25 L. 659. Mutual or membership, life or accident, features of law spe- cially applicable to. — See 52 A. S. 543. Notice — Of assessment. — See 2 L. 118; 5 L. 106; 49 L. 208; 63 L. 862. Same — To agents. — See notes §§ 18, 19, ante. Of bicycles.— See 47 L. 307. On mortgaged premises, application of proceeds of. — See 118' A. S. 968. On movable property including livestock, and the effect of removal. — See 95 A. D. 751. Option of insurer to rebuild. — See 3 L. 170; 26 L. 853-857. Oral contract of insurance, validity of. — See 22 L. 768-773. Other insurance, effect on policy. — See 10 L. 359; 49 L. 208. "Other," what constitutes. — See 43 A. R. 221. Overinsurance, waiver of conditions against. — See 27 A. R. 597. Overvaluation, effect of. — See 35 A. R. 74. Paid-up insurance. — See 8 L. N. S. 193. Parent, insurable interest in life of.— See "Insurable inter- est," this note. Policy or contract — As to generally, see 5 L. N. S. 407; 5 L. N. S. 739; 8 L. N. S. 916; 10 L. N. S. 198; 10 L. N. S. 1089; 12 L. N. S. 421; 12 L. N. S. 612. Same — By-laws, effect of on — See 1 L. N. S. 1065: 8 L. N. S. 521; 12 L. N. S. 504. Same — Cancellation of. — See 3 L. N. S. 114; 7 L. N. S. 1163; 12 L. N. S. 881. Same — Conditions, title and increase of risk — As to generally, see 1 L. 222; 1 L. 563; 4 L. 538; 8 L. 74; 9 L. 81; 13 L. 263. Same — Same- — Change of title or interest. — See 4 L. 539-541; 9 L. 627; 11 L. 293; 18 L. 481; 38 L. 562-565. Same — Same — Conditions against encumbrance. — See 1 L. 218; 4 L. 538; 8 L. 73; 20 L. 400. Same — Same — Conditions as to keeping and producing books and papers. — See 51 L. 699-713. Same — Same — Location of movable property. — See 26 L. 237- 242; 26 L. 267. 251 § 414 CIVIL CODE. [Div.I.Pt.IV. Same — Same — Other insurance, increase of risk. — See 4 L. 84S; 10 L. 359; 10 L. 383; 11 L. 299; 49 L. 208. Same — Construction of — As to generally, see 5 L. 96; 5 L. 799; 5 L. 808; 7 L. 217; 8 L. 113; 8 L. 834; 11 L. 340; 12 L. 210; 13 L. 263; 26 L. 267; 30 L. 636; 47 L. 681; 49 I.. 208; 63 L. 856. Same — Same — Separability of insurance in same policy. — Soo 19 Lr. 212-218. Same — Effect of expulsion for society. — See 25 L. 149. Sam/^ — Forfeitures and suspensions — As to generally, see 1 L. 256; 2 L. 118; 4 L. 538; 5 L. 806; 9 L. 189; 9 L. 317; 14 L. 283; 26 L. 112; 49 L. 208; 50 L. 111. Same — Same — Paid up and nonforfeiting policy of life insur- ance. — See 15 L. 449-455. Same — Incontestability of. — See 42 L. 247-261. Same — On life of minor. — See 57 L. 496-504. Same — Paid-up insurance. — See 8 L. N. S. 193. Same — Premiums and assessments — Generally, see 1 L. 46; 2 L. 786; 8 L. 114; 14 L. 283; 20 L. 407; 23 L. 435; 57 L. 69. Sam.e— Same— Notice.— See 2 L. 118; 5 L. 806; 49 L. 208; 63 L. 862. Same — Reformation of. — See 2 L. 64; 3 I... 189; 5 L. 712; 6 L. 200; 6 L. 838; 2 L. N. S. 548; 11 L. N. S. 357; 12 L. N. S. 907. Same — Representations and warranties — As to generally. — See 1 L. 564; 7 L. 217; 8 L. 72; 10 L. 666; 13 L. 265; 39 L. 265; 63 L>. 864. Same — Same — False representation as to previous applica- tion for insurance. — See 55 L. 122-138. Same — Same — Innocent misrepresentation as to health. — See 53 L. 193-205. Same — Termination of.— See 8 L. 719; 10 L. 144; 30 L. 69. Same— Validity— Generally. — See 63 L. 833-896. Same — Same — Of fire insurance on property irregularly used. — See 40 L. 845-848. Same — Same — Of life insurance to secure debt of insurer. — See 53 L. 462. Same — Same — Of oral contract of insurance. — See 22 L. 768- 773. Same — Warranties, representations, conditions, and incon- testability. — As to, generally, 8 L. N. S. 938; 10 L. N. S. 736; 11 L. N. S. 92; 12 L. N. S. 484. Same — Sam.e — Habits and occupation. — See 5 L. N. S. 283. S{ime — Same — Incontestable clause. — See 2 L. N. S. 821; 5 L. N. S. 747; 6 L. N. S. 1039; 6 L. N. S. 1064. Same — Same — Premiums and assessments. — See 1 L. N. S. 914; 2 L. N. S. 1051; 3 L. N. S. 1014; 6 L. N. S. 1039; 7 L. N. S. 238; 7 L. N. S. 253; 7 L. N. S. 1154; 8 L. N. S. 848; 12 L. N. S. 319. Same — Same — Previous rejection, and other insurance. — See 4 L. N. S. 347; 5 L. N. S. 759. 252 Tit.II.ch.L] INSURANCE, GENERALLY. * § 415 Same — Same — Title and ownership. — See 2 L. N. S. 512; 3 L. N. S. 107; 7 L. N. S. 627; 8 L. N. S. 903. Same— Same — Vacancy.— See 2 L. 517; 3 L. 966; 4 L. 1137; 12 L. 456. Powers of members of benefit societies. — See 2 L. 163. Premiums and assessments — As to, generally, 1 L. 146; 2 L. 786; 8 L. 114; 14 L. 283; 20 L. 407; 23 L. 435; 57 L. 69; 1 L. N. S. 914; 2 L. N. S. 1051; 3 L. N. S. 114; 6 L. N. S. 1039; 7 L. N. S. 238; 7 L. N. S. 253; 7 L. N. S. 1154; 8 L. N. S. 884; 12 L. N. S. 319. Same — Notice. — See 2 L. 118; 5 L. 806; 49 L. 208; 63 L. 862. Same — Waiver of paj'ment of, what amounts to. — See 29 A. R. 777. Previous rejection and other insurance, effect on contract or policy.— See 4 L. N. S. 247; 5 L. N. S. 759. Privileged communications, statement of physicians, exact- ing in and respecting proofs of death. — See 52 A. R. 4. Proof of loss — As to, generally, 9 L. N. S. 485; also "Loss and its adjustment," this note. Proximate cause of loss, what is. — See 36 A. S. 852. Reformation of contract or policy. — See 65 A. S. 514; 2 L. N. S. 548; 11 L. N. S. 357. Same — Action on as bar to reformation.- — See 12 L. N. S. 907. Reinsurance — As to, generally, see 10 L. 423; 38 L. 110: 8 L. N. S. 844-862. Same- — And the remedies of the parties thereunder. — See 45 A. S. 442. Representations and warranties. — See 16 A. D. 462. Restrictions on insurance by unincorporated associations or individuals. — See 25 L. 238. Retention of policy as waiver of mistake or fraud of in- surer or his agent. — See 67 L. 705-744. Right of assessment company to change plan or class of policies.— See 4 A. C. 361; 1 L. N. S. 623. Right of policy holder to inspect books of insurance com- pany. — See 11 L. N. S. 189. Right to proceeds, "heirs," who entitled as. — See 44 A. S. 404. Risks and cause of death or injury to person. — See 1 L. N. S. 422; 2 L. N. S. 168; 4 L. N. S. 636; 5 L. N. S. 657; 5 L. N. S. 926; 6 L. N. S. 609; 8 L. N. S. 970; 8 L. N. S. 1014; 10 L. N. S. 957. Risk and causes of loss or injury to property. — See 1 L. N. S. 1095-1098; 8 L. N. S. 308. Sale or alienation of property, when avoids. — See 28 A. D. 154. Set-ofE in case of bankruptcy. — See 55 L. 49. Severability of insurance in same policy. — See 19 L. 212-218. Situs of insurance for purposes of administration. — See 24 L. 687. 253 § 414 CIVIL CODE. [Div.I.Pt.IV. Stranger, right to take life insurance for benefit. — See 25 L. 627-630. Subrogation — And right to. — See 2 L. N. S. 922; 3 L. N. S. 79. Same — Insurer's right to. — See 44 A. S. 731. Successive insurers, liability of. — See 28 A. D. 121. Suicide — As a defense to action on policy. — See 59 A. D. 487; 3 A. R. 454; 19 A. R. 628; 84 A. S. 539; 17 K 89; 42 L. 253; 63 L. 867; 7 L. N. S. 223; 8 L. N. S. 1124. Same — Effect on enforcement of policy. — See 7 L. N. S. 223; 8 L. N. S. 1124. Same — Insanity as affecting condition in policy as to suicide. —See 35 L. 258-266. Surplus assets. — See 38 L. 110. Suspension and forfeitures. — See "Forfeitures and suspen- sions," this title. Title and ownership — As to generally. — See 2 L. N. S. 512; 3 L. N. S. 107; 7 L. N. S. 627; 8 L. N. S. 903. Same — Change of or interest, effect on policy of insurance. — See 4 L. 451; 4 L. 539; 9 L. 627; 11 L. 293; 18 L. 481; 38 L. 562- 565. Temporary removal of property, effect of. — See 43 A. R. 34. "Tornado," meaning of in insurance policy. — See 8 L. N. S. 308; 8 W. & P. 7006. Total disability, what constitutes. — See 35 L. 529-539. Transfer of policy — and interest therein — As to, generally, 3 L. N. S. 935-952; 6 L. N. S. 128; 12 L. N. S. 1206. Same — Beneficiary — Power of insured to destroy rights of. — See 49 L. 737-753. Same — Same — Change of. — See 5 L. 95; 15 L. 350; 63 L. 862. Same — Or interest of beneficiary — ^As to generally, see 9 L. 660; 10 L. 259; 32 L. 482; 63 L. 858. Same — Same— Change of beneficiary. — See 5 L. 95; 15 L. 350; 63 L. 862. Same — Same — Effect on assignee of assignor's act of for- feiture. — See 18 L. 136. Same — Same — Power of insured to destroy right of bene- ficiary.— See 49 L. 737-753. Same — Significance of these and like expressions. — See 10 A. S. 390; 8 W. & P. 7198-7205. "Vacant" or "unoccupied" — As affecting validity of Insurance. — See 2 L. N. S. 517; 3 L. N. S. 966; 4 L. N. S. 1137: 12 L,. N. S. 456. Vendor and vendee — Respective rights in when part of the purchase price has been paid. — See 84 A. D. 429. Same — Right to proceeds. — See 37 L. 150-153. Voluntary exposure to unnecessary dangers, effect of on policy. — See 40 L. 432-448. 254 Ii Tit.II,ch.I.] PURCHASE OF REALTY. §415 Waiver — And estoppel.- — See "Estoppel and waiver," this note. Sanie — By requiring further proofs of loss. — See 9 A. S. 236. Same — Of conditions against other insurance. — See 27 A. R. 601. Saine — Of conditions in insurance policy by insurer's failure to inquire into existing facts. — See 9 A. C. 994. Same — Of conditions requiring waivers to be indorsed in writing.— See 42 A. R. 621; 107 A. S. 99. Same — Constitutionality of statutes providing damages or penalty for refusal or failure of insurance company to pay loss.— See 5 A. C. 405. Same — Misrepresentations. — See 2 A. C. 99; 3 A. C. 821. Same — Same — Validity of statute providing that insurance contract shall not be avoided for immaterial or false war- ranty. — See 7 A. C. 1107. Same — Validity of parol assignment of insurance policy. — See 5 A. C. 410. Warranties and representations and their effect. — See 16 A. D. 462; 59 A. R. 816. Wife — Divorce as affecting right to insure upon husband's life. — See 50 L. 552-554. Same — Right to insure life of husband. — See 53 L. 817-825. §415. PURCHASE A>D CO^fVEYANCE OF BEAL ESTATE. [WHAT PROPERTY MAY BE HELD; WHAT MUST BE SOLD WITHIN FIVE YEABS.] No insurance cor- poration may purchase, hold or convey real estate, except as hereinafter set forth, to wit: 1. The building in which it has its principal office and the land upon which it stands. 2. Also, such as may be requisite for its accommodation in the convenient transaction of its business. 3. Also, such as may be conveyed to it, or to any person for it, by way of mortgage, or in trust or otherwise, to secure or provide for the payment of loans previously contracted or for moneys due. 4. Also such as may be purchased at sales upon deeds of trust, or judgments obtained or made, for such loans or debts. 5. Also such as may be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. All such real estate, mentioned in subdivisions three, four, and five, so acquired, which is not requisite for the accom- 255 §§416,417 CIVIL CODE. [Div.I,Pt.IV. modation of such corporation in the transaction of its busi- ness, must be sold and disposed of within five years after such corporation acquired title to the same. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 354, held unconstitutional, see history, § 4 ante; amendment re-enacted Feb. 24, 1905, Stats, and Amdts. 1905, p. 21. § 416. POLICIES, HOW ISSUED A>D BY WHOM SIGNED. All policies made by insurance corporations must be sub- scribed by [1] the president or vice president, or in case of the death, absence, or disability of those officers, by [2] any two of the directors, and [3] 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. As to power of corporations generally to contract without seal, see Kerr's Cyc. C. C. § 354, subd. S and note. As to validity of oral insurance contract, see 22 L. 768-773. Conditional delivery of insurance policy. — See 2 L. 150. Powers of insurance agents in respect to assured. — See- 16 Encyc. L. 914-918. § 417. DIVIDENDS, OF WHAT, AND WHEN DECLARED. The directors of every insurance corporation, at such times as their by-laws provide, must make, declare, and pay to the stockholders 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 received and notes taken for premium on risks which are undetermined and out- standing at the time of making the dividend must not be treated as profits, nor divided, except as provided in chapter two of this title. History: Enacted March 21, 1872, founded upon § 21 Act April 2, 1866, Stats. 1865-6, p. 748; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 355, held unconstitu- tional, see historj', § 4 ante. 256 Tit.II,ch.I.] INSURANCE COMPANIES. §§ 418-420 As to many miscellaneous matters of insurance, see note § 414, ante. Dividends — When and from what declared, — as to, see Kerr's Cyc. C. C. § 309 and note. § 418. DIRECTORS LIABLE FOR LOSS ON I>SURANCE IX CERTAIN CASES. If any insurance corporation is under liabilities for losses to an amount equal to its capital stock, and the president or directors, after knowing the same, make any new or further insurance, the estates of all who make such insurance, or assent thereto, are severally and jointly liable for the amount of any loss which takes place under such insurance. History: Enacted March 21, 1872, founded upon Act April 2, 1866, Stats. 1865-6, p. 747; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 355, held unconstitu- tional, see history, § 4 ante. §419. CERTAIN INSURANCE COMPANIES TO HAVE A CAPITAL STOCK OF TWO HUNDRED THOUSAND DOL- LARS (repealed). History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 269; April 1, 1878, Code Amdts. 1877-8, p. 80; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 355, held unconstitutional, see history, § 4 ante; repealed March 8, 1907, Stats, and Amdts. 1907, p. 141. Kerr's Stats, and Amdts. 1906-7, p. 411. In effect immediately. Incorporated in Article XVI, of Ch. Ill, Part III, Title I, of the Political Code. See Pol. C. § 594. See Kerr's Cyc. C. C. for 2 pars, annotation. 64 C. 49, 52, 28 P. 495 (construed). As to many miscellaneous matters of insurance, see note § 414, ante. §420. CERTAIN INSURANCE COMPANIES TO HAVE A CAPITAL STOCK OF ONE HUNDRED THOUSAND DOL- LARS (repealed). History: Enacted April 1, 1878, Code Amdts. 1877-8, p. 80; repealed March 8, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 411. In effect immediately. Incor- porated in Pol. C. as noted in last section. Kerr's C. C. — 9 257 §§421, 421[a] CIVIL CODE. [Div.I.Pt.IV. §421. INVESTMENT OF CAPITAL AND ACCUMULA- TIONS OF CERTAIN CORPORATIONS— REPORT OF OFFI- CERS [repealed]. [Repeal.] Sec. 1. Section four hundred and twenty-one of the Civil Code, as approved March 3, 1905, is hereby repealed. [Saving' clause.] Sec. 2. Nothing herein contained shall be deemed to repeal any of the provisions of section four hundred and twenty-one of said code, as approved March 21, 1905, and any rights acquired under said section four hun- dred and twenty-one, as approved March 3, 1905, shall be preserved under the provisions of said section four hundred and twenty-one, as approved March 21, 1905. History: Added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, pp. 355-357, lield unconstitutional, see history, § 4 ante; re-enacted March 3, 1905, Stats, and Amdts. 1905, pp. 34-36. Also re-enacted on March 21, 1905, with slight variations, which latter enactment is given below as §421 [a]; repeal enacted March 18, 1907, Stats, and Amdts. 1907, p. 597, Kerr's Stats, and Amdts. 1906-7, p. 411. Note: The section 421 approved March 21, 1905, and which is retained, is numbered § 421[a] herein and amended March 22, 1907. See next section. §421 [a]. INSURANCE CORPORATIONS, HOW CAPITAL MAY BE INVESTED. Companies organized under the laws of this state for the transaction of business in any kind of insurance, may invest their capital and accumulations in the following named securities: 1. [Seeurities in ^vliioli may be invested.] In the purchase of, or loans upon interest-bearing bonds of the United States government. 2. In tlie 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 Incorporated cities and towns and duly organized school districts of any state or territory of the United States not in default for interest on such bonds. 258 Tit.II.ch.L] INVESTMENT OF CAPITAL. § 421[a] 4. In loans upon unencumbered real property, no loan to exceed sixty per cent of the market value of any piece of real estate to be taken as security. 5. [Title insurance companies.] Corporations engaged in the business of insuring titles to real estate may, after the investment of one hundred thousand 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 capital stock, in the preparation or purchase of the materials or plant necessary to enable them to engage in such business; and such material or plant shall be deemed an asset valued at the actual cost thereof, in all statements and proceedings required by law for the ascertainment and determination of the condition of such corporations. 6. [Fire, life, health, accident and marine insurance com- panies.] Companies organized for and engaged in the busi- ness of fire, life, health, accident and marine insurance, may, after the investment of two hundred thousand dollars, and companies duly formed or organized for the transaction of business in any other kind of insurance may, after the investment of one hundred thousand dollars, in the manner provided in subdivisions one, two, three and four of this section, invest the balance of their capital and any accumu- lations in the purchase of or loans upon the stock of any corporation (except mining companies) organized and carry- ing on business under the laws of the state of California which have at the time of investment a market value of not less than their paid-in value, and which are rated as first- class securities, or in interest-bearing bonds of any corpora- tion of any state or territory of the United States not in default of interest; provided, that a two-thirds vote of all the directors of such corporations shall approve such invest- ment. It shall be the duty of the officers of such corpora- tion to report quarterly during the months of January, April, July and October of each year to the insurance commissioner a list of such investments so made by them, and the insur- ance commissioner may, if such investments, or any of them, 259 §421[a] CIVIL CODE. [Div.I,Pt.IV. seem injudicious to him, require ttie sale of ttie 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 market value of such securities, at the date of such investment. 7. Life insurance companies may loan upon their own poli- cies provided that the amount so loaned upon each policy shall not exceed the reserve against said policy at the time said loan is made; provided further, that no policy loans whatever shall ever be used as security which may be depos- ited with the insurance commissioner under section six hun- dred and thirty-four of the Political Code; and provided further, that whenever any such loan in any amount is made on a policy registered with the insurance commissioner under said section six hundred and thirty-four of the Political Code, such registration shall be forthwith canceled. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, pp. 355-357, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, pp. 628-629. Also re-enacted March 3, 1905 (see ante § 421); amended March 22, 1907, Stats, and Amdts. 1907, p. 890, Kerr's Stats, and Amdts. 1906-7, p. 412. The section amended is numbered 421[a] herein and is especially preserved in the repeal of March 18, 1907. See note to preceding section. See Kerr's Cyc. C. C. for 19 pars, annotation. As to authority of corporations to hold shares in other cor- porations, see 10 Cyc. 1107. As to authority of corporation to take and hold land, see 2 Lr. 255; 13 Encyc. L. 851. As to many miscellaneous matters of insurance, see note § 414, ante. As to power of corporation to deal in stock of other corpo- rations or its own, see 18 L. 252. As to power of corporation to lend out funds, see 10 Cyc. 1105. As to right to acquire mortgages, see 13 Encyc. L. 854. As to right of corporation to purchase its own stock, see 61. L. 621-633. 260 Tit.II,ch.II.] PAYMENT OF CAPITAL. §§ 424, 425 CHAPTER II. FIRE, MARINE, AND TITLE INSURANCE COMPANIES. § 424. Paj'inent 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. § 427. Funds may be invested how [repealed]. § 428. Corporations, fire and marine; amount of risk to be taken. § 429. [Reserve before dividends] — Corporations formed subse- quent to April 1, 1878. § 430. Amount to be reserved by companies witli less than $200,000. § 431. Amount to be reserved by life insiirance conapanies [repealed]. § 432. Accumulate surplus fund. §424. PAYMENT OF SUBSCRIPTIONS— CAPITAL TO BE ALL PAID IN TWELVE MONTHS. The entire capital stock of every fire or marine insurance corporation must be paid up in casli within twelve months from the filing of the articles of incorporation, and no policy of insurance must be issued or risk taken until twenty-five per cent of the whole capital stock is paid up. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. Fire insurance, — as to, see Kerr's Cyc. C. C. §§ 2752-2757 and notes; also note § 414, ante. Same — County fire insurance companies, as to act providing for, see Hen. G. L., tits. Corporations and Insurance. Marine insurance, — as to, see Kerr's Cyc. C. C. §§ 2655-2746 and notes; also note § 414, ante. § 425. CERTIFICATE OF CAPITAL STOCK PAID UP TO BE FILED, AND WHEN. The president and a majority of the directors must, [1] within thirty days after the payment of the twenty-five per cent of the capital stock, and also [2] 261 §§ 426-428 CIVIL CODE. [Div.I,Pt.IV. within tliirty days after the payment of the last instalment or assessment of the capital stock limited and fixed, [3] prepare, subscribe, and swear to [4] a certificate setting forth the amount of the fixed capital and [5] the amount thereof paid up at the times respectively in this section named, and [6] file the same in the office of the county clerk of the county where the principal place of business of the corporation is located, and [7] a duplicate thereof, similarly executed, with the insurance commissioner. History: Enacted March 21, 1872. §426. PROPERTY ^VHICH MAY BE INSURED. Every corporation formed for fire or marine insurance, or both, may [1] make insurance on all insurable interests witliln the scope of its articles of incorporation, and [2] may cause itself to be reinsured. History: Enacted March 21, 1872. §427. FUNDS MAY BE INVESTED, HOW (repealed). History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 210; April 1, 1878, Code Amdts. 1877-8, p. 81; March 5, 1887, Stats, and Amdts. 1887, p. 22; March 6. 1899, Stats, and Amdts. 1899, pp. 66-68 (became law, under constitu- tional provision, witliout governor's approval); repealed March 3. 1905, Stats, and Amdts. 1905, p. 34; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 628. See Kerr's Cyc. C. C. for 3 pars, annotation. 123 C. 196, 203, 55 P. 902 (referred to). As to many miscellaneous matters of insurance, see note § 414, ante. Insurable interest, — as to what is, see Kerr's Cyc. C. C. § 2546 and note. §428. CORPORATIONS, FIRE AND MARINE; AMOUNT OF RISK TO BE TAKEN. Fire and marine insurance cor- porations must never take, on any one risk, whether it is a mai'ine insurance or an insurance against fire, a sum exceed- ing one-tenth part of their capital actually paid in, and intact 262 Tit.II,ch.II.] RESERVE AND DIVIDENDS. § 429 at the time of taking such risk, without at once reinsuring the excess above one-tenth. History: Enacted March 21, 1S72; amended March 30, 1874, Code Aindts. 1873-4, p. 210; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 357, held unconstitu- tional, see history, § 4 ante; re-amended Marcli 21, 1905, p. 570. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. As to waiver of condition against over-insurance, see 27 A. R. 597. Power of state to regulate and limit insurance companies. — See 16 Encyc. L. 884-886. §429. [BESEKVE BEFOEE DIVIDENDS.] CORPORA- TIONS FORMED SUBSEQUENT TO APRIL 1, 1878. No cor- poration formed subsequent to April first, eighteen hundred and seventy-eight, under the laws of this state, and trans- acting fire, 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 prop- erty, must make any dividends except from profits remaining on hand after retaining 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 premium?* 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 expenses and taxes. History: Enacted March 21, 1872; amended April 1, 1878, Code Amdts. 1877-8, p. 81; March 5, 1887, Stats, and Amdts. 1887, p. 23. As to many miscellaneous matters of insurance, see note § 414, ante. Declaring dividends — When and from what, by insurance companies. — As to, see Kerr's Cyc. C. C. § 309 and note; § 417 and note; also 99 A. D. 761. 263 §§ 430-432 CIVIL CODE. [Div.I,Pt.IV. § 430. AMOUNT TO BE ESERYED BY COMPAINIES WITH LESS THAN $200,000. No fire or marine insurance corpora- tion, with a subscribed capital of less than two hundred thou- sand dollars, must declare any dividends, except from profits remaining on hand after reserving: 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 in course of settlement, and all liabilities for expenses and taxes. History: Enacted March 21, 1872. As to many miscellaneous matters of insurance, see note § 414, ante. §431. AMOUNT TO BE RESERVED BY LIFE INSUR- ANCE COMPANIES (repealed). History: Enacted April 1, 1878, Code Amdts. 1877-8, p. 81; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 357, held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 571. As to life and health insurance corporations and insurance, see Kerr's Cyc. C. C. §§ 2762 et seq. and notes. As to many miscellaneous matters of insurance, see note § 414, ante. §432. ACCUMULATE SURPLUS FUND. Corporations transacting business in insuring titles to real estate, shall annually set apart a sum equal to twenty-five per cent of their premiums 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 subscribed capital stock. Such fund shall be maintained as a further security to policy holders, and shall be known as the surplus fund; [Impairment of surplus fund — Restoration.] And if at any 264 TitJI.Ch.II.] SURPLUS FUND. §432 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 provided for its accumulation. The reporting of a loss shall be deemed an impairment of such fund for the purposes of this section. [DiYideuds— From what made— ReserTatious.] Such cor- poration must not make any dividends except from profits remaining on hand after retaining unimpaired: 1. The entire subscribed capital stock. 2. The amount owing to the surplus fund, under the pro- visions 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 expenses and taxes. Hi-story: Enacted March 5, 1887, Stats, and Amdts. 1887, p. 23. In effect March 5, 1887; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 357, held unconstitutional; see history, § 4 ante. 265 § 437 CIVIL CODE. [Div.I.Pt.IV. CHAPTER III. MUTUAL LIFE, HEALTH, AND ACCIDENT INSURANCE COR- PORATIONS. § 437. Capital stock — Guarantee fund. § 438. Of what guarantee fund shall consist [repealed]. § 439. What constitutes, and deficiency in fixed capital. § 440. Declaration of fixed capital to be filed. § 441. Guarantee notes and interest. [Commission and interest allowed.] § 442. Insured entitled to vote, when. § 443. Number of directors, how altered. § 444. Investment of capital stock [repealed]. § 445. Limitation to the holding of stock, etc., may be provided for in by-laws. § 446. Premiums, how payable. § 447. Insurance companies to furnish data to insurance com- missioner — Employment of actuary [repealed]. § 448. No stamps required on accident insiirance contract [re- pealed]. § 449. [Valuation of policies.] Retaliatory clause [repealed]. § 450. Policies issued within state. § 451. Certain orders not insurance companies [repealed]. § 452. Corporations, life insurance — Dividends, how made. §437. CAPITAL STOCK— GUARANTEE FUND. Every corporation formed for .the purpose 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 two hundred thousand dollars. It must not make ar,y 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 more than the requisite amount is subscribed, the stock must be distributed pro rata among the subscribers. 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 266 TiUI,Cb.ni.] FIXED CAPITAU ETC. H 438-440 etteot. nothing in this section shall be deemed to «-;™-- any ot the provisions of section tour hundred and fitty-one. n>.U,ry: Enactecl March 21, 1872; ™.nded 1,y Code Commis- sion. Act Marc, 16. 1901 Sta,. -d Amdt . «0-^l,^P.J^57._. ^^^ unconstitutional, see history, S * anLe, 1905, Stats, and Amdts. 1905, pp. 183-184. See Kerr's Cyc. C. C. for 2 pars, annotation l-n C 317 320, 321, 324, 53 P. 901 (construed). A^ to life and accident insurance, see note § 414, ante. fs to ^n.anT nicellaneous n.atters of insurance, see note § 414, ante. §438. OF WHAT GUARANTEE FUND SHALL CONSIST (repealed). History: Enacted March 21, 1872; repealed March 21, 1905, Stats, and Amdts. 1905, p. 571. AS to debts for which guarantee fund liable, under former ^^rt^^maS; mi'lnln^ufmatters of insurance, see note § 414, ante. §439 WHAT CONSTITUTES, AND DEFICIENCY IN FIXED CAPITAL. The sum accumulated as provided m 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 deamg with it, or to be expended in any manner otherwise than [as] may be required in payment of the corporation's debts and actual expenses, until the business of the ^^owov^'ion js closed, its debts paid, and its outstanding policies and ob iga- tions of every kind canceled or provided for; and if from any cause a deficiency at any time occurs in such fixed capi- tal, no further division of profits must take place until such deficiency has been made up. History: Enacted March 21, 1872. §440. DECLARATION OF FIXED CAPITAL TO BE FILED. Whenever the fixed capital of the corporation is obtained as hereinbefore provided, [1] the president of the 267 § 441 CIVIL CODE. [Div.I,Pt.IV. corporation and its actuary, or its secretary, if there is no actuary, must [2] make a declaration in writing, [3] sworn to before some notary public, of the amount of such fixed capital, and of [4] the particular kinds of property composing the same, with [»5] the nature and amount of each kind, which [6] must be filed with the original articles of incorporation, and [7] a copy, certified by the county clerk, must be pub- lished for at least four successive weeks, in a newspaper published in the county where the principal business of the corporation is situated. Upon the filing of such declaration the guarantee fund is discharged of its obligations, and all notes of the fund remaining in the control of the corporation, and not affected by any lien thei-eon, or claim of that nature, must be surrendered by it to the makers thereof, respectively, or other parties entitled to receive the same. History: Enacted March 21, 1872. § 441. GUARANTEE XOTES A>D INTEREST. [COMMIS- SION AND INTEREST ALLOWED.] Until the guarantee fund is discharged from its obligations, as provided in the preceding section, no note must be withdrawn from the fund, unless another note of equal solvency is substituted therefor, with the approval of the board of directors. The corporation must allow [1] a commission, not exceeding five per cent per annum, on all such guarantee notes while outstanding, and also [2] 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 interest is different from this amount, in which case the rate payable may, from time to time, at intervals of not less than one year, be increased or reduced by the board of directors, so as to conform to the current rate. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 210. 268 Tit.II,ch.III.] LIMITING HOLDING. §§442-446 §442. INSURED TO BE ENTITLED TO VOTE, WHEN. After the filing of the declaration of the fixed capital, as in this article provided, the holders of policies of life insurance for the term of life, on which the premiums are not in default, may vote at the election of directors, and have one vote for each one thousand dollars insured by their policies, respect- ively. History: Enacted March 21, 1872. As to many miscellaneous matters of insurance, see note § 414, ante. §443. NUMBER OF DIRECTORS, HOW ALTERED. The number of directors specified in the articles of incorporation may be altered from time to time during the existence of the corporation by resolution, at the annual meeting of a majority of those enitled to vote at the election of directors, but the number must never be reduced below five. History: Enacted March 21, 1872. §444. INVESTMENT OF CAPITAL STOCK (repealed). History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 211; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 357, held unconstitu- tional; see history, § 4 ante; repealed March 22, 1907, Stats, and Amdts. 1907, p. 889, Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. §445. LIMITATIONS TO THE HOLDING OF STOCK, ETC., MAY BE PROVIDED FOR IN BY-LAWS. The corpora- tion may, by its by-laws, limit the number of shares which may be held by any one person, and make such other pro- visions for the protection of the stockholders and the better security of those dealing with it as to a majority of the stockholders may seem proper, not inconsistent with the pro- visions of this title or part. Hi.story: Enacted March 21, 1872, § 446. PREMIUMS, HOW PAYABLE. All premiums must be payable wholly in cash, or one-half or a greater proportion 269 §§ 447-450 CIVIL CODE. [Div.I,Pt.IV. in cash, and the remainder in promissory notes bearing inter- est, as may be provided for by the by-laws. Agrreenients and policies of insurance made 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. Hi.story: Enacted March 2], 1872. § 447. INSURAX E (OMPAMES TO FURMSH DATA TO INSURANCE C03I.1IISSI0NER. E.MPLOYMENT OF ACT- UARY (repealed). History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 211; Feb. 2.=), 1889, Stats, and Amdts. 1889, p. 36; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 357, held unconstitutional, see history, § 4 ante; repealed March 18, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. Incorporated in Political Code as noted under § 419. See Pol. C. § 625. §448. NO STAMPS REQUIRED ON ACCIDENT INSUR- ANCE CONTRACT (repealed). History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 358, held unconstitutional, see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 571; re-repealed March 8, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. §449. [VALUATION OF POLK lES.] RETALIATORY CLAUSE (repealed). History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 271; amended by Code Commission, Act March 16, 1901, Stats, arid Amdts. 1900-1, p. 358, held unconstitutional, see history, § 4 ante; repealed March 8, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. Incor- porated in Political Code as noted under § 419 ante. See Pol. C. § 618. §450. POLICIES ISSUED IVITHIN STATE. Every con- tract or policy of insurance hereafter made by any person or 270 Tit.II.ch.III.] POLICIES IN STATE. §450 corporation organized [1] under the laws of this state, or [2] 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 insurance, a stipulation that when, after three full annual premiums shall have been paid on such policy, it shall cease or become void solely by the non-payment 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 policy, shall be applied by such company as a single pre- mium, 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 purchase of non-participating term insur- ance for the full amount insured by such policy, or upon the written application by the owner of such policy, and the sur- render thereof to such company within three months from such non-payment of premium, to the purchase of a non- participating paid-up policy, payable at the time the original policy would be payable if continued in force; both kinds of insurance to be subject to the same conditions, except as to payment of premiums, as those of the original policy. [Proof of death within year.] It may be provided, however, in such stipulation, that no part of such term insurance thall [shall] be due or payable, unless satisfactory proofs of death be furnished to the insuring company within one year after death, and that, if death shall occur within three years after such non-payment of premium, and during such term of insur- ance, 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 endowment policies he more than enough to purchase temporary insurance, as aforesaid, to the end of the endowment term, the excess shall be applied to the pur- chase of pure endowment insurance, payable at the end of the term, if the insured be then living. 271 §451 CIVIL CODE. [Div.I.Pt.IV. [Penalty for failure to comply with above provisions.] If any life insurance corporation or company shall deliver to any person in this state a policy of insurance upon the life of any person residing in this state, not in conformity with the provisions of this section, the right of such corporation or company to transact business in this state shall thereupon and thereby cease and terminate, and the insurance commis- sioner shall immediately revoke the certificate of such corpora- tion or company authorizing it to do business in this state, and publish such revocation, daily, for the period of two weeks, in two daily newspapers, one published in the city of San Francisco, and the other in the city of Sacramento. HlHtory: Enacted March 30, 1874, Code Amdts. 1873-4. p. 271; amended April 1, 1878, Code Amdts. 1877-8. p. 82; April 26. 1880. Code Amdts. 1880 (Pol. Code pt.). pp. 91-92; amended by Code Commission, Act March 16. 1901, Stats, and Amdts. 1900-1. p. 358, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 6 pars, annotation. 123 C. 677, 679, 680, 56 P. 546 (construed and applied); 129 C. 459, 460, 62 P. 48 (construed and applied); 139 C. 332, 335. 96 A. S. 146. 73 P. 168 (reference to New York statute, similar in many respects). As to many miscellaneous matters of insurance, see note § 414, ante. §451. CERTAIN ORDERS NOT INSURANCE COMPA- NIES (repealed). History: Enacted March 30, 1874, Code Amdts. 1873-4. p. 271; amended April 7, 1878, Code Amdts. 1877-8. p. 82, repealed April 26, 1880, Code Amdts. 1880 (Pol. Code pt.), p. 92; re-enacted March 23, 1885, Stats, and Amdts. 1885, p. 221; repealed March 8, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. See Kerr's Cyc. C. C. for 3 pars, annotation. 121 C. 317, 321, 53 P. 901 (referred to); 133 C. 686, 690, 691. 66 P. 25 (referred to); 148 C. 470. 478. 113 A. S. 291. 83 P. 804. 805. 4 L. N. S. 247, 7 A. C. 672 (associations like the "United Mod- erns," not conducted for profit, are not regular insurance com- panies). As to many miscellaneous matters of insurance, see note § 414, ante. 272 Tit.II,cil.III,] DIVIDENDS, HOW MADE. § 452 As to statutory provisions g-overning- mutual benefit and life associations, see Kerr's Cyc. C. C. §§ 452a, 453, 453d-453p and notes. Fraternal and secret societies — What constitute. — See Kerr's Cyc. C. C. § 453p and note; also 3 Encyc. L. 1041; 14 Id. 11. Special rules applicable to mutual or memtaersliip life or ac- cident insurance. — See 52 A. S. 543-578. § 452. COEPORATIOAS, LIFE INSURANCE— DIVIDENDS, HOW MADE. No corporation formed under the laws of this state, and transacting life insurance business, must make any dividends, except from profits 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 expenses and taxes; 3. A sum sufficient to reinsure all outstanding policies, as ascertained and determined upon the basis of the American experience table of mortality, and interest at the rate of four and one-half per cent per annum. History: New section added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 359, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 571. Original section 452, regulating determina- tion of net valuation of policy at expiration' of term, was enacted April 1, 1878 (Code Amdts. 1877-8, p, 83), and repealed April 26, 1880, Code Amdts. 1880 (Pol. C. pt.), p. 92. 273 § 452a CIVIL CODE. [Div.I.Pt.IV. CHAPTER IV. MUTUAL BENEFIT AND LIFE ASSOCIATIONS. [This chapter was added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 360, held unconstitutional, see history. § 4 ante; re-enacted March 20, 1905.] § 452a. Formation of tl:e association. [Mutual benefit and life.] § 453. Levying of assessments — By-laws which may be made. §452a. FORMATION OF THE ASSOCIATION— [MUTUAL BENEFIT AND LIFE.] Associations of not exceeding one thousand persons may be formed for the purpose of paying to the nominee of any member a sum, upon the death of the member, not exceeding three dollars for each member of the association. Such association may be formed by Filiue: articles of incorporation in the oftice of the clerk of the connty in which the principal place of business is situated and a certified copy of such articles of incorporation, duly certified by the county clerk, in the office of the secretary of state. [What articles must sho^v.] Such articles must state the name of the corporation, its general purposes, its principal place of business, its term of existence, not exceeding fifty years, the names and residences of the directors selected or appointed to serve for the first year, and must be signed and verified as required by sections two hundred and ninety- two and five hundred and ninety-four. History: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 410-411; See introductory note to this chapter. See Kerr's Cyc. C. C. for 26 pars, annotation. As to definitions and distinctions between benevolent and beneficial associations, see 3 Encyc. L. 1043. As to features of law specially applicable, see 52 A. S. 543. As to many miscellaneous matters of insurance, see note § 414, ante. As to mutual benefit associations, see 14 A. S. 526; 19 A. S. 781-791; 3 Encyc. L. 1045. As to what are benevolent associations and their purposes and position as insurance companies, see 2 L. 420. 274 Tit.II,ch.IV.] ASSESSMENTS— BY-LAWS. § 453 §453. LEVimG OF ASSESSMENTS— BY-LAWS WHICH MAY BE MADE. Each association provided for in this chap- ter may, on the death of a member, levy an assessment on the surviving members of not exceeding three dollars for each member, and collect and pay the same to the nominee of such decedent, and may also provide for the payment of such annual payments by members as may be deemed just, but no member must be subject to any annual assessment in excess of that established when he joined the association. The asso- ciation may make such by-laves not inconsistent with the laws of the state as may be necessary for its government and the transaction of its business; may, by its name, sue and be sued; [Loaning funds and purchasing real estate.] Loan such funds as it may have on hand ; and own sufficient real estate for its business purposes and such as it may be necessary to purchase on foreclosure of its mortgages. History: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 410-411. See Kerr's Cyc. C. C. for 115 pars, annotation. As to assignment of interest of beneficiaries, see 87 A. S. 541. As to conclusiveness and review of decisions of tribunals of benevolent societies, see 49 L. 353-401. As to effect of changes of by-laws as against pre-existing members, see 83 A. S. 706. As to effect of decisions of tribunals of benevolent associa- tions, see 13 L. 625. As to enlarged powers conferred upon benevolent associa- tions by statute, see 4 L. 382. As to law of benevolent societies, determining rights of members, see 5 L. 96. As to many miscellaneous matters of insurance, see note § 414, ante. As to power to make by-laws and amend and repeal same, see 3 L. 409. As to property rights in benevolent societies, see 2 L. 841. As to remedies of members of benevolent associations, see 59 A. S. 198. As to result of death of beneficiary before insured, see 11 A. S. 721-724. As to unborn child's rights generally, see Kerr's Cyc. C. C. § 29 and note. As to when insurance paj^able to heirs, see 44 A. S. 404-409. 275 § 453a CIVIL CODE. [Div.I.Pt.IV. CHAPTER V. CORPORATIONS TO DISCOVER FIRE AND SAVE PROPERTY AND HUMAN LIFE FROM DESTRUCTION THEREBY. [This chapter was added at recommendation of Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, pp. 360-362, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905. A codification of Act April 1, 1876, Stats. 1875-6, pp. 689-690, as amended by Act March 29, 1897, Stats, and Amdts. 1897, pp. 223-225.] § 453a. Powers of the corporation. [Underwriters]. § 453b. Right of way of corporation and its officers when run- ning to fires. § 453c. Yearly meeting's of corporation, notice to be given thereof, and proceedings which may be authorized thereat. §453a. POWERS OF THE fORPO RATION. [UNDER- IVRITERS.] Any corporation of underwriters heretofore organized and now existing, or which may be hereafter organized under the laws of this state, for the purpose of discovering and preventing fires and of saving property and human life from conflagration, and doing business within any municipal corporation of this state, has power, at its own proper cost and expense, to maintain a corps of men, with proper ofRcers, equipped with the necessary machinery and apparatus therefor, whose duty it is, so far as practicable, to discover and prevent fires and save property and human life from conflagration; and for the effective discharge of such duties, authority is hereby granted such corps to enter any building on fire, or in which property is on fire, or which such corps or any officer thereof deems to be immediately exposed to any existing fire, or in danger of taking fire from a burning building, and to remove or otherwise save and pro- tect from conflagration or damage by water any property, during and immediately after such fire. [Not to interfere with fire departments.] Nothing in this chapter must be so construed as in any degree to lessen, 276 Tit.II.ch.IV.] RUNNING TO FIRES. § 453b impair, or interfere with tlie powers, privileges, duties, or autliority of tlie regular five department of such municipality; nor can any act of such corps justify any owner of any build- ing, or property in abandoning such building or property. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 571-572; see introductory note to this chapter. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. §453b. RIGHT OF WAY OF CORPORATION AND ITS OFFICERS WHEN RUNNING TO FIRES. Such corporation, with its officers and corps, when running to a fire with its horses, vehicles, and salvage apparatus, has the same right' of way as is or may be bestowed by any ordinance of the municipality or law of this state upon the regular fire depart- ment of the municipality wherein such corporation is acting; but the rights of such fire department must always be para- mount to the rights of such corporation. [Certain laws and ordinances governing fire departments to govern.] All ordinances now existing or which may here- after be passed by the municipal authorities of any city and county, or of any incorporated city or town wherein such a corporation may carry on business, and all laws of this state applicable to such city and county, or city or town, for the conviction or punishment of any person or persons wilfully or carelessly obstructing the progress of the apparatus of the fire department of such city and county, or city or town, while going to a fire, or of any person or persons wilfully or care- lessly injuring any animal or property of said fire department, are equally applicable to any person or persons wilfully or carelessly obstructing the progress of the apparatus of such corporation while going to a fire, and to any person or per- sons who wilfully or carelessly injures any animal or prop- erty of such corporation; and said laws and ordinances, and their penalties, may be enfo-rced in the same courts and in the same manner, and with equal force and effect, as in the case of the fire department. 277 § 453c CIVIL CODE. [Div.I.Pt.IV. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 572; see introductory note to this chapter. § 453c. YEARLY MEETINGS OF COEPORATION, NOTICE THEREOF, PROCEEDINGS WHICH MAY BE AUTHORIZED THEREAT. [WHO MAY VOTE.] In the month of July, in every year, there must be held a meeting of all corporations created for the purposes specified in this chapter; of which ten days' previous notice must be inserted in at least one daily newspaper published in the municipality where said corporation is organized or established, at which meeting each insurance company, corporation, association, under- writer, agent, person, or persons doing a fire insurance busi- ness in said municipality, whether members of said corpora- tion or not, shall have a right to be represented, and shall be entitled to one vote. [Power of majority i)reseut — Fixing: expenses.] A majority of the whole number so represented has power to decide upon the question of sustaining the fire patrol organized by corpo- rations heretofore created, or that may be hereafter created, and fixing the maximum amount of expenses which may be incurred therefor during the fiscal year next to ensue, which amount must in no case exceed two per centum of the aggre- gate premiums returned as received, as provided in this sec- tion, and the whole of such amount, or so much thereof as may be necessary, may be assessed upon all insurance com- panies, corporations, associations, underwriters, agents, per- son, or persons who assume risks and accept premiums for fire insurance in said municipality, as hereinbefore mentioned, in proportion to the several amounts of premiums returned, as received by each, as hereinafter provided, and [Assessments, how coHeeted.] Such assessment is collect- able by and in the name of said corporation, in any court of law in the state of California having jurisdiction, in such man- ner and at such time or times as said corporation may deter- mine. [Pciyment of employees, etc., how provided for.] In order to provide for the payment of persons employed by said cor- poration, and to maintain suitable rooms, and apparatus for 278 Tit.II.ch.V.] YEARLY MEETINGS. § 453c saving life and property contemplated, said corporation is empowered to require a statement to be furnished, semi- annually, by all insurance companies, corporations, associa- tions, underwriters, agents, or persons, of the aggregate amount of premiums received for insuring property in the municipality where said corporation is organized or estab- lished, for and during the six months next preceding the first day of July and the first day of January of each year, which statement must be sworn to by the president or secretary of the corporation or association, or by the agent or person so acting or effecting such insurance in said municipality, and must be handed to the secretary of said corporation hereto- fore created or hereafter to be created under the provisions of this chapter within ten days after the first day of July and the first day of January of each year. Said secretary must, within the ten days aforesaid, by written or printed demand signed by him, require from every insurance company, corpo- ration, association, underwriter, agent, or person engaged in the business of fire insurance in the municipality where said corporation is organized or established, the statement here- inbefore provided for. Such demand may be delivered per- sonally at the office of such insurance company, corporation, association, underwriter, agent, or person within said munici- pality, and every officer of such insurance company, corpora- tion, association, and every such underwriter, agent, or per- son, who, for fifteen days after said demand, neglects to ren- der the statement herein provided for, forfeits fifty dollars for the use of said corporation, and also forfeits for its use twenty-five dollars in addition for every day he so neglects after the expiration of the said fifteen days, and such addi- tional penalty may be computed and collected up to the time of the trial of any action brought for the recovery thereof. The penalty herein provided for may be sued for and col- lected, with costs, in any court of law within the state of California having jurisdiction, by and in the name of said corporation. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 572-574; see introductory note to this chapter. 279 § 453d CIVIL CODE. [Div.T,Pt.IV. CHAPTER VI. LIFE, HEALTH, ACCIDENT, AND ANNUITY OR ENDOWMENT INSURANCE ON THE ASSESSMENT PLAN. [This chapter was added at the recommendation of Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, pp. 359- 366, lield unconstitutional, see history § 4 ante; re-enacted at instance Code Commissioner Marcli 20, 1905, Stats, and Amdts. 905, c. CCCLIII, p. 418. A codification of Act March 19, 1891, Stats, and Amdts. 1891, p. 126. In connection with that Act see 123 C. 107, 110, 55 P. 708; 129 C. 628, 633, 62 P. 191.] § 453d. Contracts which may be made by, defined. § 453e. Formation of corporations; issuing of contracts; invest- ments. § 453f. Pre-existing corporations, right of to reincorporate. § 453g. Contracts of insurance; contents and effects of. § 453h. Reserve and emergency fund. § 453i. Foreign corporations. Conditions precedent to doing business in tliis state. § 453j. Limitations upon riglit to issue contracts of insurance. § 453k. Exemptions from attachment and execution. § 4531. Statements to be filed with the insurance commissioner; proceedings to be taken by him thereon. § 453m. Lapsing of policies. When forbidden. § 453n. Fees and penalties. § 453o. Insurance commissioner to present bills for certain expenses. S 453p. Exemption of fraternal societies from this chapter. §453d. CONTRACTS WHICH MAT BE MADE BY, DEFINED. Every contract whereby a benefit may accrue to a party or parties therein named upon the death or physical disability of a person insured thereunder, or for the payment of any sums of money dependent in any degree upon the col- lection of assessments or dues from persons holding similar contracts, is deemed a contract of mutual insurance upon the assessment plan. Such contracts must show that the liabili- ties of the insured thereunder are not limited to fixed pre- miums. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 418. See introductory note to this chapter. A codification of § 1, Act March 19, 1891, Stats, and Amdts. 1891, p. 126. 280 Tit.II,ch.VI.] ISSUING CONTRATS. § 453e See Kerr's Cyc. C. C. for 9 pars, annotation. As to life, accident, etc., insurance, see note § 414, ante. As to many miscellaneous matters of insurance, see note § 414, ante. Special features of law applicable to. — See 52 A. S. 543-579. When complete. — See 69 A. S. 143-153. § 453e. FORMATION OF CORPO RATIONS; ISSUING COX- TRACTS; INVESTMENTS. Corporations may be formed to carry on the business of mutual Insurance upon the assess- ment plan, and are subject only to the provisions of this chapter. [Membership before contracts issued.] No such corpora- tion must issue contracts of insurance until at least two hun- dred persons have applied, in writing, for membership or- insurance therein, and have paid to the treasurer of such corporation the sum of five thousand dollars. Tin's sum must be invested in bonds or securities, approved by the insurance commissioner of this state, or deposited in some bank in this state where it will earn interest. [Deposit with state treasurer.] Said bonds or securities, or evidences of such deposit, must be placed, through the insur- ance commissioner of this state, with the state treasurer, and the principal sum must be held in trust for the contract- holders of such corporation, with the right in the corporation to exchange said bonds, securities, or evidence of bank deposit for others of like value. Such corporation must also, as a condition precedent to issuing any contracts of insurance, obtain the written certificate of the insurance commissioner that it has complied with the requirements of this chapter; and that the name of the corporation is not the same as that of any other corporation of this or other states, as indicated by the insurance department reports in his office; nor must the commissioner approve any name or title so closely resem- bling another as to mislead the public. [No legal existence for one year, unless, etc.] No corpora- tion formed hereunder has legal existence after one year from the date of its articles, unless its organization has been completed and business commenced; nor must any corpora- 281 §§453f, 453g CIVIL CODE. [Div.I,Pt.IV. tion or individual solicit, or cause to be solicited, any busi- ness, until such corporation has complied with the provisions of section six hundred and thirty-three of the Political Code. [Constriictiou.] Nothing contained in this chapter shall be construed to exempt any corporation from the provisions of section two hundred and ninety-six and two hundred and ninety-nine of this code. History: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 418-419. See introductory note to this chapter. A codification of § 2 Act March 19, 1891, Stats, and Amdts. 1891, pp. 126-127. See Kerr's Cyc. C. C. for 8 pars, annotation. As to general requisites of articles of incorporation, see Kerr's Cyc. C. C. § 290 and note. As to many niiscellaneous matters of insurance, " see note § 414, ante. Capital required of insurance companies generally. — See Kerr's Cyc. C. C. § 419 and note. Division of reserve fund. — See Kerr's Cyc. C. C. §453h and note pars. 2, 3. Emergency — Cessation of business. — See Kerr's Cyc. C. C. § 453h and note par. 4. Insolvency and failure to make up capital — Proceedings. — See Kerr's Cyc. Pol. C. §§ 600-602 and notes. §453f. PRE-EXISTIXG CORrORATIO>, RIGHT OF TO REINCORPORATE. Any existing corporation engaged in the business of life, health, accident, or endowment insurance on the assessment plan may reincorporate under the provisions of this code and chapter, but is not obliged to do so, and may, without such reincorporation, exercise the rights, pow- ers, and privileges conferred by this chapter. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 419. See introductory note to this chapter. A codification of § 3 Act March 19, 1891, Stats, and Amdts. 1891, p. 127. As to many miscellaneous matters of insurance, see note § 414, ante. Continuance of existence under provisions of code. — See Kerr's Cyc. C. C. § 287 and note. §453^. t CONTRACTS OF INSURANCE; CONTENTS AND EFFECTS OF. Every contract of insurance issued by such 282 Tit.II,ch.VI.] CONTRACTS, CONTENTS. § 453h corporation must specify the sum or sums to be paid upon the happening of the contingency insured against, and when such payments must be made. Unless the contract is invali- dated by fraud or by breach of its conditions, the corporation is obligated [1] to pay the beneficiary the amount or amounts specified in its contract at the time or times therein named, and [2] such indebtedness is a lien upon all the property of such corporation, with priority over all indebtedness there- after incurred, [3] except as hereinafter provided in case of insolvency. [Forfeiture of right to do business by failure to pay.] Fail- ure to make such payment, within thirty days after notice, at the home office, by mail, as provided by law, of a final judgment, unless waiver is made by the beneficiary, consti- ' tutes a forfeiture of the right to do business. History: Enacted March 20, 1905, Stats, and Anidts. 1905, p. 419. See introductory note to this cliapter. A codification of § 4 Act March 19, 1891, Stats, and Amdts. 1S91, p. 127. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. Insolvency — Failure to naake payment within thirty days.— See Kerr's Cyc. C. C. § 4531 note par. 7. Lien — None on emergency fund. — See Kerr's Cyc. C. C. § 4531i and note par. 4. § 45311. RESEEVATIOJf AND EMERGENCY FUND. Every domestic corporation, organized to do or doing business of insurance on the assessment plan, must accumulate a reserve or emergency fund, which must, at all times, be not less than the largest benefit contracted to be paid by it to any one person. Every corporation organized under the provisions of this chapter must accumulate such fund within a year from the date of its certificate of incorporation. [Investment of reserve or emergency fund.] Such fund, to the extent of the largest amount contracted to be paid by any such corporation to any one person, must be invested and deposited, as provided in section four hundred and fifty-three 283 § 453i CIVIL CODE. [Div.I.Pt.IV. e, with the right in the corporation to exchange any such securities for others of equal value. [Deposit part of fund.] The deposit required by section four hundred and fifty-three e constitutes a part of the reserve required by this action, at the option of such corporation. When any such corporation discontinues -business, this fund must be returned to such corporation, oi; disposed of as may be determined by the superior court of the county in which is its principal place of business. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 418. See introductory note to this chapter. A codification of § 5 Act March 19, 1891, Stats, and Amdts. 1891, pp. 127-128. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. Capital required of insurance companies generally.— See Kerr's Cyc. C. C. § 419 and note. § 4531. FOREIGN CORPORATIONS. CONDITIONS PREC- EDENT TO DO BUSINESS IN THIS STATE. Corporations organized under the laws of any other state or country to transact the business of mutual assessment insurance must, as a condition precedent to transacting business in this state, [1] comply with the provisions of sections four hundred and five and four hundred and eight of this code, and [2] deposit with the insurance commissioner of this state a certified copy of its charter or other instrument required by its home authorities; [3] a statement under oath, of [a] its president or [I)] secretary, of its business for the preceding year, in such form as may be required by the insurance commissioner of this state; [I] an appointment of a general agent, service upon whom binds the corporation; [5] a certificate that for the next preceding twelve months it has paid in full the maximum amount named in its contract of insurance; [6] a certificate from the proper officer of its state or government that like corporations of this state are legally entitled to do business in such state or country; [7] copies of its contracts of insurance and applications, which must show that the 284 Tit.II.ch.VI.] CONDITIONS PRECEDENT. § 453} liabilities of its members are not limited to fixed premiums; and [8] evidence, satisfactory to the insurance commissioner, that the corporation has accumulated a fund equal to that required of like corporations in this state, constituting a reserye or surplus fund, held in trust for the benefit of its contract-holders, and so invested and held as required by the laws of the state or government under which such corpo- ration was organized. [License, issuance, renei^al, and revocation.] The insur- ance commissioner must thereupon issue a license to such corporation to do business in this state. This license must be renewed annually, and may be revoked whenever it is ascertained that the statements required to be made by this section are not true. Upon such revocation, notice thereof must be given by the insurance commissioner by publication in some newspaper published in the city and county of San Francisco, for two weeks, daily, and no new contracts must be made by such company in this state. [License, fees, taxes, and penalties.] When any other state or country imposes any additional license, fees, taxes, or penalties upon any corporation organized or doing busi- ness under this chapter, like license, fees, taxes, or penalties are imposed upon corporations of the same kind and their agents of such state or country doing business in this state. History: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 419-420. See introductory note to this chapter. A codification of § 6 Act March 19, 1891, Stats, and Amdts. 1891, p. 128. As to appointment of agent upon whom service may be made, see Act April 1, 1872, Stats. 1871-2, p. 826. See Kerr's Cyc. C. C. for 15 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. Agent upon whom process may be served. — See Kerr's Cyc. Pol. C. § 616 and note. Conditions prescribed upon foreign companies. — See Kerr's Cyc. Pol. C. §§ 622-624 and notes. Securities required to be deposited. — See Kerr's Cyc. Pol. C. § 618 and note. 285 §§453j,453k CIVIL CODE. [Div.I.Pt.IV. §453j. LIMITATIONS UPON RIGHT TO ISSUE CON- TRACTS OF INSURANCE. No corporation doing business under this cliapter, except accident or casualty corporations, must issue a contract of insurance upon tlie life of any per- son under fifteen nor over sixty-one years of age. Every such contract of insurance must be founded upon written application therefor, and, except where the application is for health, accident, or casualty insurance only, or for one hun- dred dollars life insurance or less, such application must be accompanied by the report of a reputable physician, contain- ing a detailed statement of his examination of the applicant, showing the applicant to be in good health, and recommend- ing the issuance of a contract of insurance. [False or fraudulent statement by solicitor, etc.] Any solicitor, agent, employee, examining physician, or other per- son, making a false or fraudulent statement to any corpora- tion doing business under this chapter, with reference to any application for insurance, or for the purpose of obtaining any money or benefit fi'om such corporation, is guilty of a misde- meanor; and any person who makes a false statement of any material fact or thing in a sworn statement as to the death or disability of a contract-holder, in any such corpora- tion for the purpose of procuring or aiding the beneficiary or beneficiaries or contract-holder in procuring the payment of a benefit named in the contract, is guilty of perjury. History: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 420-421. See introductory note to this chapter. A codification of Act Marcli 19, 1891, Stats, and Amdts. 1891, pp. 128-129. §453k. EXEMPTIONS FROM ATTACHMENT AND EXE- CUTION. The money, benefit, annuity, endowment, charity, relief, or aid to be paid as provided by the contracts issued by any corporation doing business under this chapter, is not liable to attachment or other process, nor to be seized, taken, appropriated, or applied by any legal or equitable process, nor by operation of law, to pay any debts or liability of the contract-holder or any beneficiary named thereunder. 286 Titll.ch.VI.] STATEMENT. § 4531 History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 421. See introductory note to this chapter. A codification of § 8 Act March 19, 1891, Stats, and Amdts. 1891, p. 129. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. §4531. STATEMEIVT TO BE FILED WITH THE INSUR- ANCE COMMISSIONER; PROCEEDINGS TO BE TAKEN BY HIM THEREON. Every corporation, whether domestic or for- eign, doing the business of effecting insurance on the assess- ment plan must, annually, on or before the first day of Feb- ruary, file with the insurance commissioner, in such form as he may prescribe, a statement of its affairs for the year end- ing on the preceding thirty-first day of December. The insur- ance commissioner, in person or by duly authorized deputy, has the power of examination into the affairs of any domestic corporation doing business or claiming to do business imder this chapter, at any time, in his discretion, and must make such examination at least once a year. [Revoking authority to do business; i)rocedure.] If he, after an examination of the affairs of a corporation, finds that it is not doing its business in conformity to this chapter, or that it is doing a fraudulent or unlawful business, or that it is not carrying out its terms of contract, or that it cannot, within three months from the date of notice of default, pay its obligations, he must cite the president, secretary, man- ager, or general agent of the corporation, or all of them, to appear before him, stating the time and place, to show cause why the authority of the corporation to do business should not be revoked, and if cause is not shown, then he must report the facts to the attorney-general of the state, who must commence proceedings in the proper court to restrain the corporation from doing any further business. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 421. See introductory note to this chapter. A codification of §§ 9 and 10 Act March 19, 1891, Stats, and Amdts. 1891, p. 129. Compare Act 1856, Stats. 1856, p. 752. See 81 C. 364, 22 P. 869; 129 C. 628, 633, 62 P. 191. 287 §§453m, 453n. CIVIL CODE. [Div.I.Pt.IV. See Kerr's Cyc. C. C. for 12 pars, annotation. As to directors being trustees upon dissolution of corpora- tion, see Kerr's Cyc. C. C. § 400 and note. As to many miscellaneous matters of insurance, see note § 414, ante. Insolvency and failure to make up capital — Proceedings. — See Kerr's Cyc. Pol. C. §§ 600-602 and notes. §453111. LAPSING OF POLICIES. WHEN FORBIDDEN. No policy or certificate issued by any corporation or associa- tion doing business under tlie provisions of this chapter lapses for the non-payment of any assessments, dues, or premiums, unless the corporation or association has first mailed to the insured under such policy or certificate, at his or her last given post-office address, a notice setting forth the amount to be paid, and the time the same is due and payable; and such notice must be mailed at least fifteen days before the assess- ment is due; provided, that such corporations doing business under this chapter as collect specific amounts at specific dates, as contained in the contract, are not compelled to send such notices; and an aftida\it made by the officer, bookkeeper, or clerk of any such corporation having charge of the mailing of notices, setting forth the facts as they appear on the records in the office of the said corporation, showing that such notice was mailed and the date of mailing, is conclusive evidence of the mailing of such notice. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 421-422. See introductory note to this chapter. A codification of § 11 Act March 19, 1891, Stats, and Amdts. 1891, pp. 129-130. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters of insurance, see note § 414, ante. § 453n. FEES AND PENALTIES. The fees for filing state- ments, certificates, or other documents required by this chap- ter, or for any sei'vice or act of the insurance commissioner, and the penalties for any violation of this chapter, must, except as otherwise provided herein, be the same as provided in the laws of this state relating to life insurance companies, and must be disposed of as provided by such laws. 288 Titll.ch.VL] BILLS FOR EXPENSES. §§ 453o, 453p History: Enacted March 20, 1905. Stats, and Amdts. 1905. p^ History. J^^i'd. PhaDter A codification of 422. See introductory note to t^"%^^^P^'^^„„.'^^ 130 I 12 Act March 19. 1891, Stats, and Amdts. 1891. p. 1^0- §4530. INSURANCE COMMISSIONER TO PRESENT BILLS FOR CERTAIN EXPENSES. For all lawful expenses under this chapter, or by reason of any of its provisions, m the prosecution of any suit or proceeding, or otherwise, for the enforcement of the provisions of this chapter the insur- ance commissioner must present bills, duly certified by him, and accompanied with vouchers, to the state board of exam- iners, who may allow the same, and direct payment thereof to be made; and the state controller must draw warrants therefor on the state treasurer for the payment of the same to the insurance commissioner, out of the general fund, m addition to the ordinary contingent expense. History Enacted March 20. 1905. Stats, and Anndts. 1905, p. History. ji,ud.i-i.c<^ rhanter A codification of 422. See introductory note to ^Ins chapter. ^ § 13 Act of March 19. 1891, Stats, and Amdts. 1891, p. 130. §4531). EXEMPTION OF FRATERNAL SOCIETIES FROM THIS CHAPTER. The provisions of this chapter do not apply to secret or fraternal societies, lodges, o^' co^"^;!^' which conduct their business and secure membership on the lodges system exclusively, having ritualistic work and cere- monies in their societies, lodges, or councils, nor to any mutual or benefit association organized or formed and com- posed of members of any such society, lodge, or council exclusively. «■ *«^,-. T^nacted March 20, 1905, Stats, and Amdts. 1905. p. Historj: Enactea marci , ehanter A codification of 422. See introductory note to tl^j^/^'^f;'^^„„.'^„ ^30 § 14 Act March 19, 1S91, Stats, and Amdts. 1891, p. 130. AS to many miscellaneous matters of insurance, see note 'Ts'Twi^at constitutes a secret society, see Kerr's Cyc. C. C. I 453p. note. Kerr's C. C— 10 289 § 454 CIVIL CODE. [DiV.I,Pt.IV. TITLE III. RAILROAD CORPORATIONS. Chapter I. Officers and Corporate Stock, §§ 454-459. II. Enumeration of Powers. §§ 465-478. III. Business, How Conducted, §§479-494. CHAPTER I. OFFICERS AND CORPORATE STOCK. § 454. Directors to be elected, when. § 4.55. Additional provisions in assessment and transfer of stock. § 456. Railroad corporations may borrow money and issue bonds, etc. [Interest — 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 TO BE ELECTED, WHEK. Directors of railroad corporations may be elected at a meeting of the stocliholders other than the annual meeting, as a majorit}^ of the fixed capital stock may determine, or as the by-laws may provide; notice thereof to be given as provided for notices of meetings to adopt by-laws in article two, chapter one, title one, of this part. History: Enacted March 21, 1872. 132 C. 677, 678, 64 P. 1085 (referred to). As to many miscellaneous matters as to corporations, gen- erally, see note § 283 ante. RAILROADS — GENERALLY. Accident as evidence of negligence of. — See 20 A. S. 490. Additional servitude upon highway. — See 1 A. C. 861. Adverse possession of riglit of way. — See 2 A. C. 715; 10 A. C. 992; 2 L. N. S. 272. Aid in construction. — See 5 L. 726; 14 L. 479; 27 L. 696. Alighting from moving train, passenger's contributory negli- gence in. — See 17 A. S. 422. Animals — Duty towards and injuries to, liability. — See 1 L. 290 Tit.III.ch.I.] RAILROADS, GENERALLY. § 454 148; 1 L. 449; 8 L. 135; 11 L. 426; 11 L. 460; 14 L. 841; 15 L. 39; 18 L. 450; 25 L. 162; 25 L. 291; 37 L. 659. Same — On the track, duty of to. — See 49 A. D. 261; 20 A. S. 161. Appliances, improved, duty of to furnisli. — See 65 A. S. 738. Assessment of riglit of way for street improvement. — See 2 A. C. 587; also "Taxation and Assessment," this note. Attachment — Against cars of foreign railroad. — See 2 A. C. 349. Same — ^Liability of cars of foreign railroad to. — See 2 A. C. 349. Business may conduct as incidental to main business. — See 4 A. C. 910. Change of location — Power to make. — See 7 A. C. 1032; 36 L. 510. Charter rights of subject to legislative control.— See 9 L. 754. Child — Care required of railroad in operating turn tables in respect to. — See 5 A. C. 377. Same — Righl: of persons in charge of train to presume will get out of danger. — See 6 L. N. S. 283. Same — Trespassing on track — Duty of railroad to anticipate presence of.- — See 4 A. C. 680. Collisions on roads where the "block system" is used. — See 5 A. C. 444. Combinations — Authority of railroad in respect to. — See 5 L. 726. Same — Between to prevent competition. — See 74 A. S. 250. Same — Constitutional and statutory restraints upon. — See 1 L. 849. Same — Liability of consolidating company for debts of prede- cessors. — See 23 L. 231. Same — Restriction on consolidation of parallel or competing roads. — See 45 L. 271. Compelling — Operation of and increase of facilities, etc. — See 24 L. 564. Same — Roads to light their tracks in cit5'. — See 41 L. 422. Compensation for interest acquired by telegraph company in right of way. — See 1 A. C. 741. Completion of road, compelling. — See 24 L. 564. Condemnation of right of way of for telegraph line. — See 1 A. C. 517; 1 A. C. 533. Same — Compensation for. — See 1 A. C. 741. Connecting lines of and powers of carriers to contract for transportation beyond and to limit tlieir liability of their own routes. — See 72 A. D. 230. Consignee may rightfully demand delivery of goods without payment of freight when. — See 7 A. C. 790; 9 A. C. 794. 291 § 454 CIVIL CODE. [Div.I,Pt.IV. Consolidation of and its effect on pre-existing debts and liens. — See 59 A. S. 554. Constitutionality of statutes imposing- double damages for killing stock. — See 52 A. R. 375. Construction of fences. — See 3 A. C. 181, 182; 7 A. C. 987; also "Fences," this note. Contracts — For location of stations, when invalid as against public policy. — See 36 A. R. 44. Same— Which may not extort from shippers, and their effect when extorted. — See 13 A. S. 782. Contributory negligence — As affecting liability of railroad company.— See 3 L. N. S. 196; 4 L. N. S. 344; 11 L. N. S. 963; 12 L. N. S. 359. Same — Of driver of vehicle, applicable to occupant. — See 5 A. C. 163. Criminal offenses against and liability therefor. — See 25 Jj. 345; 36 L. 208; 61 L. 281; 63 L. 378. Crossings — Care which must exercise at. — See 26 A. R. 207. Same — Countrj^ — Speed at as negligence. — See 3 L. N. S. 798. Same — Duty and liability — To give signals at. — See 15 L. 426; 21 L. 723. Same — Same — To give signals at other than grade. — See 3 A. C. 361. Same — Same — To keep flagman or other person at to give warning of approaching trains or cars. — See 2 A. C. 294; 100 A. D. 412; 37 A. R. 443. Same — Same — To maintain flagman at in absence of statute. — See 2 A. C. 294; 100 A. D. 412; 37 A. R. 443. Same — Same — To maintain and operate gates at. — See 2 A. C. 449. Same — Same — Toward person going upon track to pass around a train blocking. — See 5 L. N. S. 775. Same — Duty to stop, look and listen at where flagman situ- ated. — See 10 A. C. 418; also "Duty to stop, look, and listen," this note. Same — Flagman at, liability of for injuries due to absence of.— See 2 A. C. 294; 100 A. D. 412; 17 A. R. 363; 37 A. R. 443. Same — Injury by trains at and liability therefor. — See 3 L. 594; 3 L. 683; 3 L. 745; 7 L. 317; 9 L. 57; 18 L. 63; 47 L. 301. Same — Negligence in allowing view at to be obstructed by trees, etc., on its right of way. — See 10 A. C. 485. Same — Negligence in permitting obstructions on right of way which obscure view of track from. — See 12 L. N. S. 1067. Same — New highway — Statute requiring railroad to construct. —See 8 A. C. 1056. Same — Overhead — Duty as to signals by locomotives on ap- proaching. — See 1 L. N. S. 307. 292 Tit.III.ch.I.] RAILROADS, GENERALLY. § 4^4 Same — Power of municipality to require gates at. — See 3 L. N. S. 141. Same — Rig-lits and duties at. — See 5 L. 813; 7 L. 121; 18 L. 154; 26 L. 92; 29 L. 485. Same — Validity of statute requiring- railroad to construct and maintain at new highways without compensation.— See 8 A. C. 1056. Culverts — Necessity of notice to purchasing road to construct, when. — See 12 L. N. S. 571. Damages to property for which liable after acquiring rights of way by eminent domain proceedings. — See 5 A. S. 537. Demurrage, right of to collect for detention of cars by consignees. — See 44 A. S. 921. Depot — Failure to erect under contract for — Measure of dam- ages. — See 4 A. C. 99. Depot grounds — What are, within the meaning of fence laws. — See 7 L. N. S. 203; also 3 W. & P. 2005. Discrimination by, when reasonable and lawful, and when not.— See 11 A. S. 647. Distinction between street-railroads and commercial rail- roads. — See 4 A. C. 449. Dogs — Duty of railroad company with respect to on track. — ■ See 6 L. N. S. 911; also "Trespassers," this note. Dominion of stations and grounds.- — See 8 L. 753. Draining district — Taking railroad lands for. — See 2 L. N. S. 227. Duty — And liability toward one who goes upon its property to pass around a train blocking the crossing. — See 5 L. N. S. 775. Same — As to signals by locomotives approaching overhead crossings. — See 1 L. N. S. 307. Same — Of train-men on observing object on track, character of which is unknown but which is a trespasser helpless. — See 2 L. N. S. 498. Same — Of traveler on highways to use his senses of sight, hearing, etc., to avoid dangers at crossings.— See 90 A. D. 780. Same — Owed to one who, with company's permission, uses private crossing constructed by it. — See 7 L. N. S. 597. Same — To anticipate presence of trespassing children on track. — See 4 A. C. 680. Same — To furnish employees with safe means and appliances with which to work. — See 92 A. D. 218. Same — To give signals at other than grade crossings. — See 3 A. C. 361. Same — To keep lookout for animals on track or fenced roads or where no duty to fence exists. — See 3 A. C. 891. Same — To keep lookout for trespassers on track. — See 8 L. N. S. 1069-1083. 293 § 454 CIVIL CODE. [Div.I,Pt.IV. Same — To maintain and operate gates at crossings. — See 3 A. C. 449. Same — To maintain flagman at crossings in absence of stat- ute. — See 4 A. C. 294. Same — To maintain looltout on railroad train.— See 25 L. 287- 291; 55 L,. 418. Same — To moderate speed of train where trespassers are to be anticipated. — See 11 L. N. S. 352. Same- — To stop, look, and listen — At railroad crossings where flagman is situated. — See 10 A. C. 418. Same — Same — Duty of driver of fire apparatus to. — See 7 A. C. 352. Same — Same — Failure of railroad company to give statu- tory signals as excusing. — See 6 A. C. 708. Same — Same — Presence of gates at crossings as excusing traveler from. — See 7 A. C. 801. Same — Same — Reasonable belief that no train is approaching as relieving traveler of imputation of negligence per se. — See 9 A. C. 216. Same — With respect to dogs on track. — See 6 L. N. S. 911. Electricity — Right to use as motive power. — See 5 A. C. 553. Elevated, damages for operating in the public streets. — See 26 A. S. 500. Emission of smoke, soot, cinders and coal dust as a nui- sance. — See 9 L. 712. Employees, when chargeable with knowledge of tlie condi- tion of the road. — See 47 A. R. 430. Estate or interest acquired in land purchased for riglit of way.— See 6 A. C. 242. Exclusive privileges on depot grounds. — See 2 A. C. 190. Fence — Corporations need not erect unless required by stat- ute. — See 7 A. R. 47. Same — Duty to construct. — See 5 L. 737; 8 L. 135; 11 L. 426; 12 L. 180; 25 L. 320. Same — Gates, duty to keep in. — See 49 L. 625. Same — Measure of care of company to maintain after con- struction. — See 11 L. N. S. 228. Same — On depot grounds. — See 5 L,. 737. Fence laws — What are depot grounds within the meaning of.— See 7 L. N. S. 203; also 3 W. & P. 2005. Fires — ^Duty to avoid and liability for. — See 1 L. N. S. 533; 5 L. N. S. 99; 10 L. N. S. 175; 12 L. N. S. 382; 12 L. N. S. 472; 12 L. N. S. 526; 12 L. N. S. 624. Same — Liability for when caused by coals or sparks from locomotives. — See 38 A. D. 70; 78 A. D. 185; 6 A. R. 597. Same — Liability of company for setting out. — See 1 L. 625; 294 Titlll.ch.L] RAILROADS, GENERALLY. § 454 3 L. 639; 5 L. 591; 9 L. 750; 9 L. 824; 11 L. 506; 18 L. 449; 21 L. 262. Same — Same — Constitutionality of statute imposing absolute liability for.— See 25 L. 161. Same — Same — Presumption as to negligence in case of. — See 15 L. 40. Same — Statute imposing liability for, whether constitutional. —See 42 A. S. 538. Fire apparatus — Duty of driver of to stop, look, and listen at crossings. — See 7 A. C. 352. Flagman — Duty of railroad to maintain at crossings in ab- sence of statute. — See 2 A. C. 449; also "Crossings," this note. Flying switch — Making, as negligence. — See 10 A. C. 1015. Foreign railroad — Liability to attachment or garnishment of cars. — See 2 A. C. 349. Same — Rights of in state. — See 24 L. 313. Franchises and property of, power of to transfer. — See 75 A. ■ D. 548. Free passes, risks assumed by acceptors of. — See 57 A. R. 388. Frightening horses — Liability of company for personal in- juries caused by. — See 3 A. C. 1070; 10 A. C. 302. Same — On highway by engine, etc., on or near crossing, lia- bility for. — See 3 L. N. S. 111. Garnishment — Liability of foreign railroad to. — See 2 A. C. 349. Same — Of cars of foreign railroad company. — See 2 A. C. 347, 349; 9 A. C. 437. Gates — At crossings — Duty of railroad company to maintain and operate. — See 2 A. C. 449. Same — Duty to keep in fences. — See 9 L. 625. Saine — Power of municipality to require at crossings. — See 3 L. N. S. 141. Implied power of railroad to engage in or guarantee enter- prise other than transportation of goods or passengers. — See 2 L. N. S. 887. Imputation of contributory negligence of driver to occupant of vehicle. — See 5 A. C. 163. In highways — Liability to abutting owner for mutilating trees, etc. — See 12 L. N. S. 1125. Injunction against, as nuisances, in suit by municipality. — See 44 L. 565. Injuries — By train at crossing. — See "Crossings," this note. Same — Caused by objects thrown from moving train, liability of railroad company for. — See 6 L. N. S. 581. Same — Which wrongful acts of are deemed the proximate cause of. — See 41 A. R. 53. Same — To animals. — See "Animals," this note. 295 § 454 CIVIL CODE. [Div.I,Pt.IV. Same — To property and interference with rights of others.— See 2 L. 542; 3 L.. 565; 9 L. 712; 17 L. 221; 40 L. 593; 59 L. 863; 70 L. 585. Joint traffic arrangements, power of the states to compel the entering into. — See 89 A. S. 527. Land-owner's right to damages for obstruction of street or highway by railroad adjacent to his property. — See 9 L. N. S 496. Lateral railroad — What within charter-power to build. — See 12 L. N. S. 326. Lease as affecting liabilities of. — See 7 L. 344; 10 L. 794. Leasing their property, liability of afterward. — See 48 A. R. 580. Legalization of nuisances injuriously affecting private prop- erty. — See 1 A. C. 625. Legislative control — Charter rights of subject to. — See 9 L. 754. Lessee of railroad — Liability of lessor for negligent or illegal operation by. — See 2 A. C. 861; 10 A. C. 350. Same — Proper pleading in action against railroads for dam- ages caused by its lessee. — See 9 A. C. 682. Lessor — Liability of to persons other than lessees. — See 58 A. S. 147. Liability — For assaults made by their employees on passen- gers. — See 41 A. R. 340. Same — For conducting surface water through to embank- ments and on to the property of an adjoining owner.- — See 12 L. N. S. 680. Same — For frightening horses on highway by engine, etc., on or near crossing. — See 3 L. N. S. 111. Same — For injuries inflicted in removing trespassers from train. — See 1 A. C. 775. Same — For injury or loss of baggage. — See 7 A. C. 57; 9 A. C. 199. Same^ — For injury to animals. — See 3 A. C. 274; 3 A. C. 590; 8 A. C. 417. Same — For killing dog. — See 3 A. C. 275. Same — For personal injuries by objects thrown from moving train. — See 6 L. N. S. 581. Same — For personal injuries caused by frightening of horses by train or cars. — See 3 A. C. 1070; 10 A. C. 302. Same — For personal injuries due to employees. — See 60 A. R. 880. Same — For physicians and siirgeons attending injured ena- ployees. — See 1 A. S. 199. Same — For private nuisance. — See 1 L. N. S. 62. Same — For torts of their lessees. — See 71 A. D. 295. 296 Tit.III.ch.I.] RAILROADS, GENERALLY. § 454 Same — Of cars of foreign railroads to attachment or garnish- ment. — See 2 A. C. 349. Same — Of lessee or licensee to its servants for condition of track. — See 6 L. N. S. 787. Same — Of lessor of railroad — For injuries caused by negli- gence of lessee or licensee. — See 44 L. 737. Same — Same — For negligent or illegal operation by lessee. — See 2 A. C. 861; 10 A. C. 350. Same — Same — Proper pleading in action against railroad to recover damages caused by lessee. — See 9 A. C. 682. Same — Of purchaser of railroad on personal contracts of old corporations. — See 6 A. C. 85. Same — Of right of way to assessment for local improvements. —See 12 L. N. S. 112. Same — Of sleeping car company for loss of passenger's prop- erty left by him in berth while temporarily absent therefrom. — See 10 A. C. 895. Same — Rimning train in violation of speed law for injury to trespassers. — See 5 A. C. 1007. Same — To persons with whom they have no contract rela- tions but who are lawfully on their tracks, cars, or premises. — See 90 A. D. 55. Same — While in the hands of trustees or receivers. — See 5 A. S. 313. Lien — For charges on goods tortiously delivered to it. — See 3 A. C. 1095. Same — For demurrage. — See 3 A. C. 1092; 4 A. C. 12, 15; 5 A. C. 387, 388; 7 A. C. 960; 9 A. C. 790. Low bridges, liability of for injuries to employees by. — See 53 A. R. 699. Making flying switch as negligence. — See 10 A. C. 1015. Mandamus to compel to perform public duty required by its charter.— See 37 A. S. 321; 12 L. 180. "Materials," construction of word as used in statute given mechanics' lien for materials furnished for railroad construc- tion.— See 9 A. C. 309; also 5 W. & P. 4409-4412. Measure — Of care of to maintain fence once constructed. — See 11 L. N. S. 223. Same — Of damages for breach of contract by railroad to erect depot.— See 4 A. C. 99. Mechanics' lien laws, applicable to railroads. — See 5 A. C. 433; 7 A. C. 267, 269; 10 A. C. 372, 374. Mortgages — After-acquired property which is covered by. — See 99 A. S. 252. Same — Of propertj' — What included, foreclosure. — See 1 L. 334; 5 L. 566; 6 L. 44; 9 L. 140; 32 L. 208; 69 L. 682. Same — Subsequent claims which take precedence of. — See 54 A. S. 400. 297 § 454 CIVIL CODE. [Div.T.Pt.IV. Same — What included within. — See 38 A. R. 353. Motive power tliat may be used by. — See 2 L. N. S. 138. Same — Electricity as a. — See 5 A. C. 53. Municipal ordinances, requiring railroad to maintain gates or flagman at crossings, validity of. — See 5 A. C. 301. Negligence — Contributory — Of passengers in riding on plat- forms, etc.— See 37 A. R. 710; 41 A. R. 347. Same — Same — Of passenger in jumping from moving train. — See 56 A. R. 842. Same — Same — Of persons not looking for approach of cars. — See 51 A. R. 360. Same — In allowing view at crossings to be obstructed by trees, etc., on its right of way. — See 10 A. C. 485. Same — In permitting obstructions on right of way which ob- scure view of track from highway crossing. — See 12 L. N. S. 1067. Same — Speed of train as evidence of. — See 53 A. R. 52. Negligent construction. — See 3 A. C. 201; 3 A. C. 1065. New highways — Validity of statute requiring railroad to con- struct and maintain crossings at without compensation. — See 8 A. C. 1056. Notice to purchasing railroad company to construct culverts where road originally constrvicted without them, necessity for. — See 12 L. N. S. 571. Nuisance — Emission of smoke, soot, cinders, etc., as a. — See 9 L. 712. Same — In injunction against as a, in suit by municipality. — See 44 L. 565. Same — Injuriously affecting private property — Legalization of. —See 1 A. C. 625. Same — Liability for private. — See 1 L. N. S. 62. Same — Statutory authority to commit by construction and operation. — See 70 L. 585. Ordinance — As to operation — Violation of as ground for pri- vate action. — See 5 L. N. S. 186. Passenger — ^Alighting from trains, right of and duties to. — See 50 A. R. 277. Same — Duty of to ascertain whether train stops at their sta- tion. — See 50 A. R. 527. Same — Employees, riding on, when not deemed to be. — See 52 A. R. 280. Same — Negligence of in projecting a member of his body out of a car window. — See 116 A. S. 721. Same — Obligation to stop for at the times advertised. — See 66 A. D. 603. Same — When not guilty of contributory negligence in not remaining in their seats. — See 58 A. R. 113. Same — Who is a, and when becomes such. — See 61 A. S. 75. 298 Tit.III,ch.I.] RAILROADS, GENERALLY. § 454 Persons loading or unloading not simply licensees. — See 1 A. C. 601. Power to change its location. — See 7 A. C. 1032. Prescriptive right to maintain. — See 53 L. 900. Presence of gates at railroad crossings as excusing traveler from duty to look and listen. — See 7 A. C. 801. Priority of claims against property of, in hands of receiver over recorded liens. — See 2 L. N. S. 1015. Private action — For violation of statute imposing duties on railroads.— See 9 L. N. S. 347. Same — Violating ordinance as to operation, as ground for. — See 5 L. N. S. 186. Private crossing — General nature of duty owed by railroad to one using with perinission.— See 7 L. N. S. 597. Privileges, right of to grant exclusive to hackmen and other solicitors. — See 22 A. S. 699. Property of, exempt from execution. — See 5 A. C. 511. Railroad bridge over navigable stream.— See 2 L. 542; 59 L. 863. Reasonable belief that no train is approaching crossings as relief of negligence per se in failing to stop, look, and listen. — See 9 A. C. 216. Requisites of averment in complaint as to casual connection between violation of law or ordinance by railroad company and injury. — See 8 L. N. S. 987. Right- — Of persons in charge of train to presume that cliild will get out of danger. — See 6 L. N. S. 283. Same — Of way, as encumbrance. — See 4 L. N. S. 318. Same — To change location of railroad. — See 36 L. 510. Same — To condemn land for spur to private establishment. — See 7 A. C. 835. Same — -To grant exclusive privileges on depot grounds. — See 2 A. C. 190. Same — To use electricity as motive power. — See 5 A. C. 553. Rules and regulations which may make respecting passengers and others not employees. — See 41 A. D. 471. Sick, aged, and feeble passengers, care and duty with respect to. — See 97 A. D. 499. Signals by locomotives — Duty as to approaching overhead crossings. — See 1 L. N. S. 307. Speed — At country crossings as negligence. — See 3 L. N. S. 778. Same — Excessive as negligence. — See 3 L. 594; 3 L. 6S3; 4 L. 776; 7 L. 317; 9 L. 160; 11 L. 434. Same — Of railroad train as negligence in absence of pro- hibitory statute. — See 7 A. C. 988. Spur to private establishment — Right to condemn land for. — See 7 A. C. 835. 299 § 454 CIVIL CODE. [Div.I,Pt.IV. State regulation of railroads — As an interference with inter- state commerce. — See 7 A. C. 5. Same — Validity of requirement that railroad construct and maintain crossings at new highways without compensation. — See 8 A. C. 1056. Stations — And grounds, dominion of. — See 8 L. 753. Same — Duty of to keep safe for passengers and others. — See 29 A. S. 55. Statutory signals — Failure of railroad company to give on approaching crossings as excuse for traveler's contributory negligence. — See 6 A. C. 78. Stop, look and listen — Duty of at crossings where gates are open. — See 4 L. N. S. 521. Same — Duty of traveler to on approaching overhead or underground railroad crossing. — See 6 L. N. S. 150. Same — Failure in duty to, contributory negligence. — See 7 L. 316; 9 L. 161; 11 L. 385. Same — Failure to give customary signals as excusing from. —See 3 L. N. S. 391. Stop-over privileges and tickets, rules which may be en- forced respecting. — See 45 A. D. 192. Street improvements — Assessment of railroad riglit of way for. — See 2 A. C. 587; 28 L. 249; 12 L. N. S. 112. Street-railroads. — See note § 497, post. Streets and highways, constitute additional servitudes upon. —See 28 A. R. 267; 37 A. R. 224. Taking railroad lands for draining district. — See 2 L. N. S. 227. Taxation of — As to generally. — See 10 A. C. 354, 355; 15 L. 298; 57 L. 64; 60 L. 687; 66 L. 51; 69 L. 445. Same — Assessment of. right of way for street improvements. — See 2 A. C. 587; 28 L. 249. Same — Exemption from taxation. — See 4 A. C. 1195, 1203; 1 L. 426. Tickets of, limitations upon and of right to stopover.— See 24 A. R. 22. Train-dispatcher's record as evidence. — See 3 L. N. S. 1190. Trespasser — Child — Right of persons in charge of train to presume will get out of danger. — See 6 L. N. S. 283. Same — Duty of railroad company toward person going upon property to pass around a train blocking crossing. — See 5 L. N. S. 775. Same — Duty to keep lookout for. — See 8 L. N. S. 1069-1083. Same — ^Duty to moderate speed where to be anticipated. — See 11 L. N. S. 532. Same — Duty with respect to dogs. — See 6 L. N. S. 911. 300 Tit.III,ch.I.] ASSESSMENTS, ETC., STOCK. § 455 Same — Helpless on track, duty of train-men upon observ- ing-. — See 2 L. N. S. 498. Same — Injury to — Children on tracks. — See 4 A. C. 680. Same — ^Same — In running train in violation of speed law. — • See 5 A. C. 1007. Same — Same- — ^Traveling along railroad right of way. — See 2 A. C. 548. Same — On track — Duty toward and liability for injuries to. — See 30 A. S. 53; 6 L. 242; 10 L. 139; 11 L. 385; 13 L. 248; 16 L. 634; 25 L. 287; 25 L. 784-791; 55 L. 418; 66 L. 587; 69 L. 523. Same- — Removal from trains — Authority of brakeman. — See 2 A. C. 624. Same — Same — Liabilities for injuries inflicted in. — See 1 A. C. 775. Same — Upon cars, liability for injuries to. — See 55 A. R. 42. Trespassing — By traveling along railroad right of way. — See 2 A. C. 548. Sam.e — Animals, liability of for negligently or willfully kill- ing. — See 96 A. D. 681. Turntables — And other dangerous appliances, liability to trespassers injured by. — See 59 A. R. 23. Same — Care required of railroad in operation of in respect to children. — See 5 A. C. 377. Validity of contract to pay an officer of a railroad company for his own benefit for specific location of road or depot. — See 6 L. N. S. 524. Violating ordinance as to operation as ground for private action. — See 5 L. N. S. 186. Violation by servant of rule adopted by company for pro- tection of public, as evidence of negligence toward a member of the public. — See 8 L. N. S. 1063. Waiver of carrier's lien to consignor's agent on promise to retain goods until payment of freight charges. — See 7 A. C. 961. § 455. ADDITIONAL PROVISIONS IN ASSESSMENT AND TRANSFER OF STOCK. No stock in any railroad corporation is transferable until all the previous calls or instalments thereon have been fully paid in; [Transfer not \alid, except.] Nor is any such transfer valid, except as between the parties thereto, unless at least twenty per cent has been paid thereon and certificates issued therefor, and the transfer approved by the board of direc- tors. History: Enacted March 21, 1872. SOX § 456 CIVIL CODE. [Div.I,Pt.IV. §456. RAILROAD CORPORATIONS MAY BORROW MONEY AND ISSUE BONDS, ETC.— [INTEREST— LIMITA- TION OF AMOUNT]. Railroad corporations may borrow, on the credit of the corporation and under such regulations and restrictions as the board of directors thereof, by unanimous concurrence, may impose, such sums of money as may be necessary [1] for constructing and completing their railroad with its equipment, and [2] for the purchase of all necessary rolling stock and [3] all else relative thereto, and may [4] issue promissory notes therefor, or [5] may issue and dispose of bonds to raise moneys necessary to pay therefor, at a rate of interest not exceeding ten per cent per annum; and may [6] also issue bonds, or promissory notes, at the same rate of interest in payment of any debts or contracts for construct- ing and completing their road, with ifs equipments and roll- ing stock, and all else relative thereto, and [7] for the pur- chase of railroads and other property within the purpose of the corporation. The amount of bonds, or promissory notes, issued for such purposes [1] must not exceed in all the amount of their capi- tal stock; and to secure the payment of such bonds, or notes, they [2] may mortgage their corporate property and fran- chises, or [3] may secure the payments of such bonds, or notes, by deed of trust of their corporate property and fran- chises. [4] 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 trusiees in such deed of trust. History: Enacted March 21, 1872; amended April 15, 1880, Code Amdts. 1880 (C. C. pt.), p. 10; March 9, 1897, Stats, and Amdts. 1897, p. 73; March 4, 1899, Stats, and Amdts. 1899, pp. 57-58 (became a law, under constitutional provision, without Governor's approval). See Kerr's Cyc. C. C. for 11 pars, annotation. 109 C. 571, 595, 42 P. 225 (referred to); 124 C. 321, 328, 329, 71 A. S. 68, 57 P. 76 (construed and applied); 125 C. 407, 409, 410, 58 P. 85 (referred to); 125 C. 453, 454, 455, 58 P. 64 (construed with §359); 64 F. 450, 452 (construed and applied). 302 Tit.III.Ch.L] BONDS, SINKING FUND. §§ 457, 458 As to many miscellaneous matters as to corporations g-ener- allj', see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. §457. TO PROVIDE SINKING FUND TO PAT BONDS. The directors must provide a sinking fund, to be speciallj^ applied to the redemption of such bonds on or before their maturity, and may also confer on any holder of any bond or note so issued, for money borrowed or in payment of any debt or contract for the construction and equipment of such road, the right to convert the principal due or owing thereon into stock of such corporation, at any time within eight years from the date of such bonds, under such regulations as the directors may adopt. History: Enacted March 21, 1872. This section is founded upon § 15 Act May 20, 1861 (Stats. 1861, § 15, p. 607), as amended by § 1 Act May 4, 1862 (Stats. 1862, § 1, p. 547). See Kerr's Cyc. C. C. for 2 pars, annotation. 125 C. 453, 454, 58 P. 64 (applied). As to construction of section original act, see 69 C. 606, 609, 6 P. 748. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. §458. CAPITAL STOCK TO BE FIXED. When, at any time after filing the articles 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 [s] vote of the stockholders 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. History: Enacted March 21, 1872. 65 C. 193, 209, 3 P. 661, 802 (referred to in discussing con- tention not material to decision). As to many miscellaneous inatters as to corporations gen- erally, see note § 283, ante. 303 § 459 CIVIL CODE. [Div.I,Pt.IV. As to many miscellaneous matters as to railroads, see note § 454, ante. § 459. ( EIiriFICATE OF PAYMENT OF FIXED CAPITAL STOCK. Within thirty days after the payment of the last instalment of the fixed capital stock of any railroad corpora- tion organized under this title and part, the [1] president and secretary and [2] a majority of the directors thereof must [3] make, subscribe, and file in the office of the secretary of state a [4] certificate, stating [a] the amount of the fixed capital stock, and [b] that the whole thereof has been paid in. The certificate must [5] be verified by the affidavit of the president and secretary. History: Enacted March 21, 1872. 304 Tit.III.Ch.II.] RAILROAD'S POWERS. § 465 CHAPTER II. ENUMERATION OF POWERS. § 465. Powers of railroad corporations. 1. May make survey for road — May enter upon lands for that' purpose. 2. May accept real estate. 3. May acquire real estate. 4. May lay out roads, how wide. 5. May construct road, where. 6. May cross, etc., other roads. 7. May purchase lands, timber, stone, etc. 8. May carry persons and freight. 9. May erect buildings. 10. May regulate time and tolls, subject to legislation. . 11. May establish rules for management of business. 12. May purchase other roads not in competition. § 465a. What motive power may be used. Authority must be obtained. § 466. Map and profile to be filed. § 467. May change line of road. § 468. Forfeiture of franchise. [Failure to operate, reverter.] § 469. Crossings and intersections. Condemnation. § 470. Not to use streets, alleys, or water, in cities or towns, except by a two-third[s] vote of the city or town authorities. § 471. Convej'ance of passengers within city limits [repealed]. § 472. When crossing railroads or highways, how other lands acquired. § 473. Consolidation of railroad corporations. Proceedings nec- essary thereto. § 473a. Right to lease or use another road in common. § 474. State lands granted for use of corporations. § 475. Grant not to embrace town lots. § 476. Wood, stone and earth may be taken from state lands. § 477. Lands to revert to state, when. § 478. Selections made, how proved and certified to. §465. POWERS OF RAILROAD CORPORATIONS. Every railroad corporation has power: 1. [To make suney for road.] To cause such examinatlou and surveys to be made as may be necessary to the selection of the most advantageous route for the railroad; and for 305 § 465 CIVIL CODE. [Div.I,Pt.IV. such purposes their officers, agents and employees may enter upon the lands or waters of any person, subject to liability for all damages which they may do thereto; 2. [To accept real estate.] To receive, hold, take, and con- vey, by deed or otherwise, as a natural person, such voluntary grants and donations of real estate and other property, which may be made to it to aid and encourage the construction, maintenance and accommodation of such railroad; 3. [To acquire real estate.] To purchase, or by voluntary grants or donations to receive, enter, take possession of, hold and use all such real estate and other property as may be absolutely necessary for the construction and maintenance of such railroads, and for all stations, depots and other purposes necessary to successfully work and conduct the business of the road; 4. To lay out its road, not exceeding ten rods wide, and to construct and maintain the same, with one or more tracks, and with such appendages and adjuncts as may be necessary for the convenient use of the same; 5. To construct their roads across, along or upon any stream of water, watercourse, roadstead, bay, navigable stream, street, avenue or highway, or across any 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 thus intersected to its former state of usefulness as near as may be, or so that the railroad shall not unnecessarily impair its usefulness or injure its franchise; 6. To cross, intersect, join, or unite its railroad witli any other railroad, either before or after construction, at any point upon its route, and upon the grounds of such other railroad corporation, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the objects of its connections; and every corporation whose railroad is, or shall be hereafter intersected by any new railroad, shall unite with the owners of such new railroad in forming such 306 Tit.III.ch.II.] ENUMERATED POWERS. § 465 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, intersections and connections, the same sliall be ascertained and determined as is provided in title seven, part three, Code of Civil Procedure (sees. 1237- 1263); 7. To purchase lauds, tiiuber, stone, gravel or otlier mate- rials to be used in the construction and maintenance of its road, and all necessary appendanges and adjuncts, or acquire them in the manner provided in title seven, part three. Code of Civil Procedure, 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 here- inafter; but no such change must vary the general route of such road, as contemplated in its articles of incorporation; 8. To carry persous and property on their railroad, and to receive tolls or compensation therefor; 9. To erect and maintain all necessary and conyeuient buildings, stations, depots, fixtures and machinery for the accommodation and use of their passengers, freight and busi- ness; 10. To regulate the time and manner in which passengers and property shall be transported, and the tolls and co"mpeu- sation to be paid therefor within 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 employed on their roads, and to establish, execute and enforce all needful and proper rules and regulations for the management of its busi- ness transactions usual and proper for railroad corporations; 12. [To purchase other roads.] To purchase, lease or acquire the franchises, rights and property, or any part thereof, of any railroad corporation, leasing or owning any railroad outside of the state of California, and to operate the same, and to use the franchises of any such road, and to build and operate extensions thereof; 307 § 465 CIVIL CODE. [Div.I,Pt.IV. [Restrictions.] Provided that nothing herein shall author- ize any corporation to purchase the franchises, rights, and propert}^ of any railroad operated in competition with it; and to purchase, acquire and hold the stocks, bonds or other secu- rities of any railroad corporation organized under the laws of this state or of any other state or territory, with full power to sell the same; provided that nothing herein will author- ize any corporation to purchase the stock of any railroad cor- poration operated in competition with it. [In effect, -when.] Sec. 2. This act shall take effect imme- diately. History: Enacted March 21, 1872, founded upon and is a sub- stantial re-enactment of § 17 of Act May 20, 1861, Stats. 1861, pp. 614-616; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p.' 367, held unconstitutional, see his- tory, § 4 ante; amendment re-enacted, and paragraph 12 added, March 20, 1903, Stats, and Amdts. 1903, pp. 245-246; amended March 4, 1907, Stats, and Amdts. 1907, p. 99, Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. See Kerr's Cyc. C. C. for 94 pars, annotation. 53 C. 223, 227, 228 (construed and applied); 67 C. 429, 431, 432, 7 P. 814, 815 (power of railroad company to acquire advan- tageous right of way); 69 C. 202, 206, 10 P. 510, 513 (construed and applied); 91 C. 449, 452, 25 A. S. 201, 27 P. 768, 769, 13 L. 754 (referred to); 92 C. 639, 645, 28 P. 676, 677 (construed and applied); 93 C. 263, 265, 28 P. 828, 829, 18 L. 510 (referred to); 111 C. 221, 227, 43 P. 602 (construed); 129 C. 8, 10, 11, 61 P. 947 (construed and applied); 134 C. 412, 414, 415 (referred to), 66 P. 473; 142 C. 391, 392, 75 P. 1086 (referred to); 149 C. 83, 91, 92, 84 P. 771 (section gives power to lay out a roadway, but does not make "appendages" and "adjuncts" a part of the roadway itself); 152 C. 303, 308, 92 P. 849 (power of eminent domain conferred upon railroad companies, should include not only the actual right of way but all necessary "appendages and adjuncts"); 1 C. A. 441, 443, 82 P. 640 (construed with other sections, as to effect of consent of city authorities, to use streets for railroad purposes, upon liability of company for damages); 2 C. A. 546, 559, 84 P. 298 (what branch road is not an "appendage or adjunct" of the main line). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. 308 I Tit.III.ch.IL] MOTIVE POWER. §§ 465a, 466 All railroad corporations are governed by the provisions of this section. See 91 C. 449, 452, 25 A. S. 201, 27 P. 768, 13 L. 754. Authority from municipal corporation to occupy street. — See Kerr's Cyc. C. C. § 470 and note. Changing location of route. — See Kerr's Cyc. C. C. § 467 and note. Duties with respect to time-tables, stopping at stations, etc. — See Kerr's Cyc. C. C. § 481 and note. Elevated railroads — Appropriation of easement by. — See 20 Encyc. P. 840-846. Middle of street — Location of track in. — See Kerr's C. C. § 498 and note. Quantity of land which corporation may acquire. — See Kerr's Cyc. C. C. §360 and note; also 465, note par. 33. Rates of charges for transportation of passengers and freight. — See Const. 1879, art. XII, § 22, Hen. G. L. p. xcvi; see also Kerr's Cyc. C. C. § 489 and note. §465a. WHAT MOTIVE POWER MAY BE USED. AUTHORITY MUST BE OBTAINED. Every person or cor- poration now or hereafter authorized to operate a railroad by steam motive power, is also authorized to use electricity or compressed air, or both, either with or without such steam, for the purpose of propelling cars or trains on such railroads or upon anj^ portion thereof. In incorporated cities, towns, or cities and counties having more than five thousand inhabitants, authority must be obtained from the legislative authority thereof. Hi-story: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 368, held unconstitutional, see his- tory, §4 ante; re-enacted March- 21, 1905, Stats, and Amdts. 1905, p. 574. A codification of § 1 Act March 23, 1893, Stats, and Amdts. 1893, p. 208. §468. MAP AND PROFILE TO BE FILED. Every rail- road corporation in this state must, [1] within a reasonable time after its road is finally located, [2] cause to be made a map and pi-ofile thereof, and [3] of the land acquired for the use thereof, and [4] the boundaries of the several counties through which the road may run, and [5] file the same in the office of the secretary of state; and also [6] like maps of the parts thereof located in different counties, and file the same 309 § 467 CIVIL CODE. [Div.I,Pt.IV. in the office of the clerk of the county in which such parts of the road are, there to remain of record forever. The maps and profiles must be certified by [1] the chief engineer, [2] the acting president and secretary of such com- pany, and copies of the same, so certified and filed, [3] be kept in the office of the secretary of the corporation, subject to examination by all parties interested. History; Enacted March 21, 1872, founded iipon § 43 Act May 20, 1861, Stats. 1861, pp. 623-624. 67 C. 429, 432, 7 P. 814 (referred to in discussion in connec- tion with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. §407. MAY CHAMiE LI>E OF ROAD. If, at any time after the location of the line of the railroad and the filing of the maps and profiles thereof, as provided in the preceding section, it appears that the location can be improved, the directors may, as pi'ovided in subdivision seven, section four hundred and sixty-five, [1] alter or change the same, and [2] cause new maps and profiles to be filed, showing such changes, in the same offices where the originals are of file, and [3] may proceed, in the same manner as the original location was acquired, to acquire and take possession of such new line, and [4] must sell or relinquish the lands owned by them for the original location,- within five years after such change. [HoAV new location to be run.] No new location, as herein provided, must be so run as to avoid any points named in their articles of incorporation. History: Enacted March 21, 1872, founded upon § 18 Act May 20, 1861, Stats. 1861, p. 616. See Kerr's Cyc. C. C. for 4 pars, annotation. 67 C. 429, 432, 7 P. 814, 816 (construed with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. 310 TitIII,ch.II.] FORFEITING FRANCHISE. §468 S46S FORFEITURE OF FRAIVCHISE. [FAILURE TO OPERATE REYERTER.] Every railroad corporation must, Wbeu cmnpleted must be oi.eiated-Forielture of r,gl.t to „„e™'e.] A er the eompletioa ot any railroad, or any part thereof capable o( being operated, its owner must operate ■ ^TZToX U as tbe case may be, ^^^^^f^^^^^ I -eabo^r --»''— 'rT::s::r rr Lrreoarert^e «— ot 0.ober ot any year ■■ T ^c r^^^oQ Tint Yield income sufficient to aeiia-y l'e::*se: o'man\a"l and operating it in connection tlie expenbeb ul i^ railroad commissioners ficient to operate the same. HLstorr: Enacted Marcl. 21. 1^72 founded upon § 5^ Aet May 20, 1861, Stats. 1861, p. ^^Y" cZcLt^LZ A^ March 21. 1869-70. P. ^^^-/"rdt: 1900 1 ;. 6^^^^^^^^^ unconstitutional; 1901, Stats, and Amdts. IJUU i, p §§469,470 CIVIL CODE. [Div.I,Pt.IV. see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 574. See Kerr's Cyc. C. C. for 4 pars, annotation. 92 C. 639, 646, 28 P. 676, 677, 678 (construed and applied); 3 C. A. 668, 678, 87 P. 27 (construed and applied with reference to road less than one mile in length). As to inany miscellaneous matters as to corporations gen- erally, ^see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Misuser and non-user — Forfeiture for. — See 8 A. S. 179-202. Time when corporation must organize. — See Kerr's Cyc. C. C. § 358 and note. §469. (ROSSIXGS AND INTERSECTIONS. CONDEMNA- TION. Whenever the track of one railroad intersects or crosses the track of another railroad, whether the same be a street railroad, wholly within the limits of a city or town, or other railroad, the rails of either or each road must be so cut and adjusted as to permit the passage of the cars on each road with as little obstruction as possible; and, in case the persons or corporations owning the railroads cannot agree as to the compensation 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 proceedings under title seven, part three. Code of Civil Procedure, and the damages assessed and the right of way granted as in other cases. History: Enacted March 21, 1872, founded upon § 2 Act May 6, 1862, Stats. 1862, p. 498. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Eminent domain — Nature of right and procedure. — See Kerr's Cyc. C. C. P. §§ 1237-1263 and notes. .Joint use of railroad property. — See Kerr's Cyc. C. C. § 465 sub. 6 and note. § 470. NOT TO USE STREETS, ALLEYS, OR WATER, IN (ITIES OR TOWNS, EXCEPT BY A TW0-TH1RD[S] VOTE OF THE CITY OR TOWN AUTHORITIES. No railroad corpo- 312 Tit.III,ch.II.] CROSSINGS, OTHER LANDS. §§471,472 ration must use any street, alley, or highway, or any of the land or water, within any incorporated city or town, unless the right to so use the same is granted by a two-third [s] vote of the town or city authority from which the right must emanate. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 6 pars, annotation. 69 C. 202, 206, 10 P. 510, 513 (referred to); 92 C. 639, 645, 28 P. 676 (construed with §465); 105 C. 87, 94, 95, 38 P. 530 (con- strued and applied); 109 C. 315, 319, 41 P. 1093 (construed with other sections). As to many miscellaneous matters affecting corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Abutting owner's right to compensation. — See Kerr's Cyc. C. C. § 465 and note. §471. CONVEYANCE OF PASSENGERS WITHIN CITY LIMITS (repealed). History: Enacted March 21, 1872, founded upon § 21 Act 1861, Stats. 1861, p. 618; amended April 1, 1876, Code Amdts. 1875-6, p. 76; repealed April 1, 1878, Code Amdts. 1S77-S, p. 84. §472. WHEN CROSSING RAILROADS OR HIGHWAYS, HOW OTHER LANDS ARE ACQUIRED. Whenever the track of such railroad crosses a railroad or highway, such railroad or highway may be carried under, over, or on a level with the track, as may be most expedient; and in cases where an embankment or cutting necessitates a change in the line of such railroad or highway, the corporation may take such additional lands and material as are necessary for the con- struction of such road or highway on such new line. If such other necessary lands cannot be had otherwise, they may be condemned as provided in title seven, part three. Code of Civil Procedure; and when compensation is made therefor, the same becomes the property of the corporation. History: Enacted March 21, 1872, founded upon § 19 Act May 20, 1861, Stats. 1861, pp. 616-617. 313 § 473 CIVIL CODE. [Div.I,Pt.IV. See Kerr's Cyc. C. C. for 10 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Eminent domain — Nature of right and procedure. — See Kerr's Cyc. C. C. P. §§ 1237-1263 and notes. §473. CONSOLIDATION OF RAILROAD CORPORATION. PROCEEDINGS NECESSARY THERETO. Any railroad cor- poration incorporated under the laws of this state may con- solidate with one or more railroad corporations incorporated under the laws of this state, or under the laws of any other state or territory of the United States, its capital stock, prop- erties, roads, equipments, adjuncts, franchises, claims, demands, contracts, agreements, obligations, debts, liabilities and assets of every kind and description, upon such terms and in such manner as may be agreed upon by their respective boards or directors; provided. No such consolidation shall take effect until the same shall hare been ratified and coufinned in writing by stockholders of the respective corporations representing three-fourths of the subscribed capital stock of their respective corporations. In case of such consolidation "Articles of incorporation and consolidation" must be pre- pared, setting forth: 1. The name of the new corporation; 2. The purpose for which it is formed; 3. The place where its principal business is to be trans- acted; 4. The term for which it is to exist, which shall not exceed fifty years; 5. The number of its directors (which shall not be less than five, nor more than thirteen) and the names and residences of the persons appointed to act as such until their successors are elected and qualified; 6. The amount of its capital stock (which shall not exceed the amount actually required for the purposes of the new corporation, as estimated by competent engineers), and. the number of shares into which it is divided; 314 Tit.III,ch.IT.] CONSOLIDATION. § 473 7. The amount of stock actually subscribed, and by whom; 8. The termini of its road or roads and branches; 9. The estimated length of its road or roads and branches; 10. The names of the constituent corporations, and the terms and conditions of consolidation in full. [Signing- articles; method of — Memorandum of ratification.] Said articles of incorporation and consolidation must be signed and countersigned by the presidents and secretaries of the several constituent corporations and sealed wtih their corporate seals. There must be annexed thereto memoranda of the ratification and confirmation thereof by the stockhold- ers of each constituent corporation, which must be respect- ively signed by stockholders representing at least three- fourths of the capital stock of their respective corporations. When completed as aforesaid said Articles must be filed in the office of the county clerk of [1] the county in which the original articles of incorporation of either of the consolidating corporations are filed, and [2] a copy of the articles of incorporation and consolidation certified by such county clerk must be filed in the office of the secretary of state, and thereupon the constituent corpora- tions named therein must be deemed and held to have become extinct in all courts and places, and said new corporation must be deemed and held in all courts and places to have succeeded to all their several capital stocks, properties, roads, equipments, adjuncts, franchises, claims, demands, contracts, agreements, assets, choses and rights in action of everj' kind and description, both at law and in equity, and to be entitled to possess, enjoy, and enforce the same and every thereof, as fully and completely as either and every of its constituents might have done had no consolidation taken place. [New corporation subrogated to constituents.] Said con- solidated or new corporation must also, in all courts and places, be deemed and held to have become subrogated to its several constituents and each thereof, in respect to all their contracts and agreements with other parties, and all their debts, obligations, and liabilities, of every kind and nature, 315 § 473a CIVIL CODE. [Div.I.Pt.IV. to any persons, corporations, or bodies politic, wlaomsoever, or whatsoever, and said new corporation must sue and be sued in its own name in any and every case in which any or either of its constituents might have sued or might have been sued at law or in equity had no such consolidation been made. Nothing in this section contained shall be construed to impair the obligation of any contract to which any of such constituents were parties at the date of such consolidation. All such contracts may be enforced by action or suit, as the case may be, against the consolidated corporation, and satis- faction obtained out of the property which, at the date of the consolidation, belonged to the constituent which was a party to the contract in action or suit, as well as out of any other property belonging to the consolidated corporation. Hi-story: Enacted March 21, 1S72, founded upon § 40 Act May 20, 1861, Stats. 1861, pp. 622-623; amended March 16, 1901, Stats, and Amdts. 1900-1, pp. 327-328 (became a law, under constitu- tional provision, without g-overnor's approval). In effect March 16, 1901. See Kerr's Cyc. C. C. for 11 pars, annotation. 67 C. 59, 61, 7 P. 123 (construed); 76 C. 404, 405, 407, 18 P. 599, 600 (referred to); 98 C. 210, 216, 33 P. 53 (applied); 109 C. 571, 577 (referred to), 583 (quoted), 584 (construed and applied), 586 (quoted), 593, 601 (construed and applied), 42 P. 225, 226, 119 C. 334, 343, 51 P. 317 (the provisions of this section in rela- tion to consolidation are substantially the same as those in tlie statute of 1861); 147 C. 663, 666, 82 P. 319 (applied — distinction between consolidation of railroad corporations and of mining corporations). As to many miscellaneous matters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. § 473a. RIGHT TO LEASE OB USE ANOTHER ROAD IN COMMON. 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 contracts with one another, whereby the one may lease of the other the whole or any pai't of its railroad, or 316 Tit.III.ch.II.] CxRANT OF STATE LANDS. §§474-476 may acquire of the other the right to use, in common with it, the whole or any part of its railroad. Hi.story: Added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 369; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 575. A codification of § 2 Act April 3, 1880, Stats. 1880, p. 21. §474. STATE LANDS GKANTED FOR USE OF COEPO- EATIONS. There is granted to every railroad corporation the right of way for the location, construction, 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. Hi-story: Enacted March 21, 1872; this and following sections of chapter founded upon §§ 20-22 Act May 20, 1861, Stats. 1861, pp. 617-618. §475. GRANT NOT TO EMBRACE TOWN LOTS. 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. History: Enacted March 21, 1872; this, the preceding section, and following sections of chapter founded upon §§ 20-22 Act May 20, 1861, Stats. 1861, pp. 617-618. §476. WOOD, STONE, AND EARTH MAY BE TAKEN FROM STATE LANDS. 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 may be necessarj' and convenient for the original construction of its works and adjuncts, is granted to such corporations. History: Enacted March 21, 1872; this and following sections of chapter founded upon §§ 20-22 Act May 20, 1861, Stats. 1861. pp. 617-618. 317 §§ 477, 478 CIVIL CODE. [Div.I.Pt.IV. §477. LANDS TO llEVERT TO STATE, WHEN. If any corporation receiving state lands or appurtenances there- under is dissolved, ceases to exist, is discontinued, or the route or line ol: its works is so changed as not to cover or cross the lands selected, or the use of the lands selected is abandoned, such selected lands revert, and the title thereto is reinvested in the state or its grantees, free from all such uses. History: Enacted March 21, 1872; this and following section of chapter founded upon §§ 20-22 Act May 20, 1861, Stats. 1861, pp. 617-618. § 478. SELECTIONS MADE, HOW PROVED AND CERTI- FIED TO. When any selection of the right of way, or land for an adjunct to the works of a railroad corporation, is made by any corporation, the secretary thereof must transmit to the surveyor-general, controller 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 cor- rect; and, if approved, 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. History: Enacted March 21, 1872; this and preceding four sections founded on §§ 20-22 Act May 20, 1861, Stats. 1861, pp. 617-618. See Kerr's Cyc. C. C. for 3 pars, annotation. 101 C. 333, 336, 337, 35 P. 993 (construed and applied). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. 318 I Tit.III,ch.III.l BAGGAGE, CHECKS TO. §479 CHAPTER III. BUSINESS. HOW CONDUCTED. § 479. Checks to be affixed to all baggage. [Damages.] § 480. Annual report to be verified. Form of report. § 481. Duties of corporation. [Time of running to be fixed by public notice. Sufficient accommodations to be fur- nished.] § 482. Corporation to pay damages for refusal. § 483. Furnish room inside passenger cars, and be responsible for damages occurring on freight and other cars. § 484. Corporations to post printed regulations, and not respon- sible for damages in violation of rules. § 485. To pay damages. Not liable in certain cases. Corpora- tion may recover damages, when. § 486. Regulations of trains. Penalty. § 487. Passenger refusing to pay fare. § 488. Officers to wear badge. § 489. Rate of charges established by railroad commissioners. Notice served. § 490. Railroad tickets entitle purchaser to what. Penalty for failure to provide such tickets. § 491. Quality of rail to be used. § 492. Elevated or underground railroads. Who may grant franchise. § 493. To what above section applies. § 494. Railroad corporations may sell property and franchises to other railroads. §479. CHECKS TO BE AFFIXED TO ALL BAGGAGE. [DAMAGES.] A check must be affixed to every package or parcel of baggage when taken for transportation by any agent or employee of such railroad corporation, and a dupli- cate thereof given to the passenger or person delivering the same in his behalf; and if such check is refused on demand, the railroad corporation must pay to such passenger the sum of twenty dollars, to be recovered in an action for damages; and no fare or toll must be collected or received from such passenger, and if such passenger has paid his fare, the same must be returned by the conductor in charge of the train ; and on producing the check, if his baggage is not delivered 319 § 480 CIVIL CODE. [Div.I.Pt.IV. to him by the agent or employee of the railroad corporation, he may recover the value thereof from the corporation. History: Enacted March 21, 1872, founded upon § 42 Act May 20, 1861, Stats. 1861, p. 623. See Kerr's Cyc. C. C. for 28 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. "Bagg-ag-e" and "luggage." — See Kerr's Cyc. C. C. §§ 2180-2183 and notes. Baggage-car — Baggage must be carried in. — See Kerr's Cyc. C. C. § 2183 and note. Common carrier's liability for baggage. — See post § 2182. Duty to carry baggage. — See post § 2180. Lien on baggage for fare. — See Kerr's Cyc. C. C. § 2191 and note. Ijimitation in ticket of liability for baggage. — See Kerr's Cyc. C. C. § 2176 and note. "Luggage" defined. — See Kerr's Cyc. C. C. § 2182 and note; 5 W. & P. 4257. Notice limiting liability. — See Kerr's Cyc. C. C. 2174 and note. Weight of baggage — Limitation by statute. — See Kerr's Cyc. C. C. § 2180 and note. §480. ANNUAL REPORT TO BE VERIFIED. FOR^I OF REPORT. Every railroad corporation must make an annual report to the secretary of state, or other officer designated by law, of its operations for each year, ending on the thirty- first day of December, 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 February, 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 buildings, and for engines and cars, respectively; 3. The amount and nature of its indebtedness, and the amount due the corporation; 320 Tit.III,ch.III.] DUTIES OF— RUNNING. § 481 4. The amount received from the transportation of passen- gers, property, mails, and express matter, and from other sources; 5. The amount of freight, specifying the quantity 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; 8. The number of engine-houses and shops, of engines and cars, and their character. History: Enacted March 21, 1872, founded upon § 44 Act May 20. 1861, Stats. 1861, pp. 624-625. As to many miscellaneous matters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. §481. DUTIES OF CORPORATION. [TIME OF RUN- NING TO BE FIXED BY PUBLIC NOTICE. SUFFICIENT ACCOMMODATIONS TO BE FURNISHED.] Every such cor- poration must start and run its cars, for the transportation of persons and property, at such regular times as it shall fix by public notice, and must furnish sufficient accommoda- tions for the transportation of all such passengers and prop- erty as, within a reasonable time previous thereto, offer or are offered for transportation, at the place of starting, at the junction of other railroads, and at siding and stopping- places established for receiving and discharging way passen- gers and freight; and must take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of tolls, freight, or fare therefor. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 369, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 575. See Kerr's Cyc. C. C. for 79 pars, annotation. 134 C. 412, 414, 66 P. 473 (cited with other sections); 142 C. 391, 392, 75 P. 1086 (referred to with other sections); 3 C. A. 668, 683, 87 P. 27 (referred to). Kerr's C. C— 11 321 § 481 CIVIL CODE. [DiV.I,Pt.IV. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Baggage-checks must be affixed. — See Kerr's Cyc. C. C. § 479 and note. Common carriers — What constitute. — See Kerr's Cyc. C. C. § 2168 and note. Contract — Expressed in ticket, bill of lading, etc. — See Kerr's Cyc. C. C. § 2176 and note. Definition of baggage. — See Kerr's Cyc. C. C. § 2181 and note; 1 W. & P. 663-670. Delay — Liability for want of ordinary care. — See Kerr's Cyc. C. C. § 2196 and note. Ejection of passengers for non-payment. — See Kerr's Cyc. C. C. § 2188 and note. Liability for baggage. — See Kerr's Cyc. C. C. § 2182 and note. Mode of carrying and delivery. — See Kerr's Cyc. C. C. § 2183 and note. Obligation to carry.- — See 'Kerr's Cyc. C. C. § 2180 and note. Obligation to provide. — See Kerr's Cyc. C. C. § 481, note pars. 21, 22; § 2184 and note. Passengers — Civility and proper attention n\iist be accorded to. — See Kerr's Cyc. C. C. § 2103 and note. Payment on train — Additional charge. — See Kerr's Cyc. C. C. § 2189 and note. Penalty for failure to provide — Rights under. — See Kerr's Cyc. C. C. § 490 and note. Preference as to time, price, etc. — Must not be given. — See Kerr's Cyc. C. C. § 2170 and note. Release from negligence, fraud, etc., not permissible. — See Kerr's Cyc. C. C. § 2175 and note. Rules for government of passengers may be made. — See Kerr's Cyc. C. C. § 2186 and note. Seats for passengers necessary— Overcrowding not permitted. — See Kerr's Cyc. C. C. § 2185 and note. Stop-over — Right of passenger to. — See Kerr's Cyc. C. C. § 490 and note pars. 7-9. United States and state may be given preference. — See Kerr's Cyc. C. C. § 2171 and note. Warehouseman — When corporation liable as. — See Kerr's Cyc. C. C. § 2120 and note. When payable — See Kerr's Cyc. C. C. § 2187 and note. Kditorinl Note: — Section founded upon Act May 20, 1861, § 45 (Stats. 1861, p. 625). The language of the section as it now stands amended is almost a verbatim copy of that section of the Act of 1861 which is construed in 23 C. 323, 328. North Carolina statute (N. C. Code § 1963) is almost word for word 322 Tit.III.ch.IIL] RESPONSIBILITY FOR DAMAGES. §§ 482, 483 the same as this section, and is construed in 108 N. C. 414, 12 S. E. Rep. 954, 12 L. 113. Oklahoma statute (§ 1036) is identical with this section, and is construed in 5 Okla. 616, 49 P. 940. § 482. CORPORATION TO PAY DAMAGES FOR REFUSAL. 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 which are sus- tained thereby, with costs of suit. History: Enacted March 21, 1872, founded u]ion § 46 Act May 20, 1861, Stats. 1861, p. 624. See Kerr's Cyc. C. C. for 4 pars, annotation. 134 C. 412, 414, 66 P. 473 (cited with other sections); 142 C. 391, 392, 75 P. 1086 (referred to); 3 C. A. 668, 683, 87 P. 27 (referred to). As to many miscellaneous matters as to corporations, see note § 283, ante. As to niany miscellaneous matters as to railroads, see note § 454, ante. §483. FURNISH ROOM INSIDE PASSENGER-CARS, AND BE RESPONSIBLE. FOR DAMAGES OCCURRING ON FREIGHT AND OTHER CARS. Every railroad corporation must furnish, on the inside of the passenger-cars, sufficient room and accommodations for all passengers to whom tick- ets are sold for any one trip and for all persons presenting tickets entitling them to travel thereon; and when fare is taken for transporting passengers on any baggage, wood, gravel, or freight car, the same care must be taken and the same responsibility is assumed by the corporation as for pas- sengers on passenger-cars. History: Enacted March 21, 1872, founded upon §§ 45, 46 Act May 20, 1861, Stats. 1861, p. 624. See Kerr's Cyc. C. C. P. for 15 pars, annotation. 1 C. A. 343, 347; 82 P. 226. As to inany miscellaneous matters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante/ Accommodations must be furnished. — See Kerr's Cyc. C. C. § 481 and note. 323 §§484,485 CIVIL CODE. [Div.I.Pt.IV. §484. CORPORATIONS TO POST PRINTED REGULA- TIONS, AND NOT RESPONSIBLE FOR DAMAGES IN VIO- LATION OF RULES. Every railroad corporation must have printed and conspicuously posted on the inside of its passen- ger-cars its rules and regulations regarding fare and conduct of its passengers; and in case any passenger is injured on or from the platform of a ear, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of positive verbal instructions or injunctions given to such passenger in person by any officer of the train, the corporation is not responsible for damages for such injuries, unless the corporation failed to comply with the provisions of the preceding section. History: Enacted March 21, 1872, founded upon § 48 Act May 20, 1861, Stats. 1861, p. 625. See Kerr's Cyc. C. C. for 21 pars, annotation. 78 C. 360, 364, 20 P. 740, 742 (applied); 87 C. 62, 73, 25 P. 245, 11 L. 130 (construed and applied); 1 C. A. 343, 348, 82 P. 226 (right to eject passengers who are in duty bound to leave the train). As to many miscellaneous matters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Provisions of this section are made applicable to street rail- road companies by § 510 post. §485. TO PAY DAMAGES. NOT LIABLE IN CERTAIN CASES. CORPORATION MAY RECOVER DAMAGES, WHEN. 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 cars 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 ani- mals a fair market price for the same, unless it occurred through the neglect or fault of the owner of the animal so killed or maimed. 324 Tit.III,ch.III.] REGULATION OF TRAINS. § 486 [Not liable in damages for killing stock, when.] Railroad 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 arising out of the killing or maiming any ani- mals of persons who thus fail to construct and maintain such fence; [Damages recoverable by company, when.] And the own- ers of such animals are responsible for any damages or loss which may accrue to such corporation from such animals being upon their railroad track, resulting from the non-con- • struction of such fence, unless it is shown that such loss or damage occurred through the negligence or fault of the cor- poration, its officers, agents, or employees. History: Enacted March 21, 1872, founded upon § 40 Act May 20, 1861, Stats. 1861, p. 623. See Kerr's Cyc. C. C. for 21 pars, annotation. 64 C. 110, 113, 29 P. 511, 512 (applied); 65 C. 316, 318, 4 P. 28 (construed and applied); 86 C. 279, 284, 24 P. 1032, 1033 (re- ferred to); 94 C. 568, 570, 29 P. 1110 (cited as to duty to fence); 104 C. 20, 28, 37 P. 859 (construed with Code Civ. Proc. §1248); 110 C. 455, 456, 42 P. 975 (construed and applied); 114 C. 501, 508, 46 P. 604, 605 (construed and applied): 126 C. 516, 518, 58 P. 1055 (the whole provision seems to be in interest of owner); 126 C. 571, 573, 58 P. 1046 (construed and applied); 141 C. 288, 289, 74 P. 840 (applied); 31 Mont. 238, 78 P. 303, 304 (adoption of section from California. No such section appears in the New York code). As to many miscellaneous matters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. §486. REGULATIONS OF TRAINS. PENALTY. [1] A bell, of at least twenty pounds weight, must be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad crosses any street, road, or highway, and be kept ringing until it has 325 § 487 CIVIL CODE. [Div.I,Pt.IV. crossed such street, road, or highway; or [2] a steam 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, und6r [3] a penalty of one hundred dollars for every neglect, to be paid by the corporation operating the railroad, [4] which may be recovered in an action prosecuted by the district attorney of the proper county, for the use of the state. [Liability in damages.] The corporation is also liable for all damages sustained by any person, and caused by its loco- motives, train, or cars, when the provisions of this section are not complied with. History: Enacted March 21, 1872, founded upon § 41 Act May 20, 1861, Stats. 1861, p. 623. See Kerr's Cyc. C. C. for 16 pars, annotation. 52 C. 602, 604 (construed); 61 C. 326, 328 (construed and ap- plied); 85 C. 291, 296, 297, 24 P. 661, 662 (construed); 86 C. 374, 378, 380, 24 P. 1074, 10 L. 139 (construed and applied); 98 C. 309, 311, 33 P. 119 (construed and applied);^ 122 C. 563, 567, 55 P. 577 (cited as to how bell shall be rung);'l32 C. 254, 256, 64 P. 255 (referred to); 147 C. 624, 627, 82 P. 306 (this section is not limited to a case where a railroad crosses a liighway at grade — upon the same level as the highway); 150 C. 701, 703, 89 P. 1093 (this section does not abrogate the doctrine of contribu- tory negligence). As to many miscellaneous inatters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. §487. PASSENGER REFUSING TO PAT FARE. If any passenger refuses to pay his fare, or to exhibit or surrender his ticket, when reasonably requested so to do, the conductor and employees of the corporation may put him and his bag- gage out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling-house, on stopping the train. History: Enacted March 21, 1872, founded upon § 49 Act' May 20, 1861, Stats. 1861, p. 625. 326 Jl Tit.III.ch.III.] BADGES FOR OFFICERS. § 488 See Kerr's Cyc. C. C. for 2S pars, annotation. 65 C. 626, 628, 4 P. 672 (construed and applied); 78 C. 360, 365, 20 P. 740, 741, 743 (citing erroneously § 497 instead of this section); 97 C. 1, 5, 6, 33 A. S. 157, 31 P. 1112, 1113 (construed and applied); 145 C. 441, 452, 79 P. 420, 68 L. 393 (applied in case of retention of limited ticket by conductor) ; 1 C. A. 343, 348, 82 P. 226 (right to eject passengers who are in duty bound to leave the train). As to duty to use reasonable care in ejecting passenger, see 2 A. S. 546. As to ejectment of passenger for failure to show or surren- der ticket, see 41 A. l!>. 476. As to many miscellaneous matters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Ejection of passenger for non-payment of fare is author- ized. — See Kerr's Cyc. C. C. § 487, note pars. 3, 14; also § 2188 and note. Fare — When payable. — See Kerr's Cyc. C. C. § 2187 and note. Seat — Right of passenger to. — See Kerr's Cyc. C. C. § 483 and note. §488. OFFICERS TO WEAR BADGE. Every conductor, baggage-master, engineer, brakeraan, or other employee of any railroad 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 oflfice or station, and the initial letters of the name of the corporation by which he is employed. No col- lector or conductor, without such badge, is authorized to demand or to receive from any passenger any fare, toll, or ticket, or exercise any of the powers of his office or station; and no other officer or employee, without such badge, has any authority to meddle or interfere with any passenger or prop- erty. History: Enacted March 21, 1872, founded upon § 50 Act May 20, 1861, Stats. 1861, p. 625. See Kerr's Cyc. C. C. for 3 pars, annotation. 109 C. 100, 104, 105, 41 P. 794 (construed and applied); 1 C. A. 343, 348, 82 P. 226 (cited as to proper payment of fare). As to many miscellaneous matters as to corporations, see note § 283, ante. 327 § 489 CIVIL CODE. [Div.I.Pt.IV. As to many miscellaneous matters as to railroads, see note § 454, ante. § 489. RATE OF CHARGES ESTABLISHED BY RAILROAD COMMISSIONERS. NOTICE SERVED. Whenever the board of railroad commissioners, in the discharge of its duties, establishes or adopts rates of charges for the transportation of passengers and freight, pursuant to the provisions of the constitution, said board must serve a printed schedule of such rates, and of any changes that may be made in such rates, upon the person, copartnership, company, or corpora- tion affected thereby; and [Copies of rates to be posted, where and by whom.] Upon such service it is the duty of such person, copartnership, company, or corporation to immediately cause copies of the same to be posted in all its offices, station-houses, warehouses, and landing offices affected by such rates, or change of rates, in such manner as to be accessible to public inspection dur- ing usual business hours. Said board [of railroad commissioners] nmst also m.akc such further publication thereof as it deems proper and nec- essary for the public good. If the party to be served is a corporation, such service may be made upon the president, vice-president, secretary, or managing agent thereof, and if a copartnership, upon any partner thereof. [Rates go into effect, when.] The rates of charges estab- lished or adopted by said board, pursuant to the constitution and the laws of this state, must go into force and effect on the twentieth day after service of such schedule of rates, or changes in rates, upon the person, copartnership, company, or corporation affected thereby. History: Enacted March 21, 1872, founded upon § 51 Act May 20, 1861, Stats. 1861, p. 625; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 370, held uncon- stitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, pp. 575-576. See Kerr's Cyc. C. C. for 5 pars, annotation. 105 C. 526, 544, 545 (cited in discussion), 546-549, 555 (con- strued with § 490), 38 P. 94, 109, 722, 28 L. 773. 328 A Tit.III,Ch.III.] TICKETS, RIGHTS UNDER. § 49O As to many miscellaneous matters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Street railroads — Rates of charges on. — See Kerr's Cyc. C. C. § 501 and note. Tolls and compensation may be collected. — See Kerr's Cyc. C. C. § 465 subd. 8 and note. §490. RAILROAD TICKETS ENTITLE PURCHASER TO WHAT. PENALTY FOR FAILURE TO PROVIDE SUCH TICKETS. Every railroad corporation must provide, and on being tendered the fare therefor fixed, as provided in the pre- ceding section, furnish to every person desiring a passage on their passenger-cars a ticket, which entitles the purchaser to a ride, and to the accommodations provided on their cars, from the depot or station where the same is purchased to any other depot or station on the line of their road. Every such ticket entitles the holder 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 refused all actual damages caused thereby, with reasonable counsel fees expended in recovering same. History: Enacted March 21, 1872; amended March 23, 1901, Stats, and Amdts. 1900-1, p. 600. See Kerr's Cyc. C. C. for 9 pars, annotation. 105 C. 526, 537 (construed and applied), 540 (referred to in dis. op.), 542-556 (construed together with §489), 38 P. 94, 109, 722. 28 L. 773; 132 C. 408, 411, 413, 416, 418, 420, 64 P. 572 (con- strued and applied); 144 C. 182, 188, 77 P. 894 (construed with reference to rates and limited tickets). As to many miscellaneous matters as to corporations, see note. § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. Scalper's Ticket. — 45 A. R. 380; see 5 Encyc. L. 490, to the effect that ordinary scalper's ticket is good. 329 §§ 491-493 CIVIL CODE3. [Div.I.Pt.IV. §491. QUALITY OF RAIL TO BE USED. All railroads, other than street railroads and those used exclusively for carrying freight or for mining purposes, built by corporations organized under this chapter, must be constructed of the best quality of iron or steel rail, known as T or H rail, or other pattern of equal utility. History: Enacted March 21, 1872, founded upon § 57 Act May 20, 1861, Stats. 1861, p. 627; amended March 30, 1874, Code Amdts. 1873-4, p. 212. 132 C. 677, 678, 64 P. 1065 (referred to by the court in con- nection with other sections). See Kerr's Cyc. C. C. § 481 and note par. 15. As to many miscellaneous matters as to corporations, see note § 283, ante. As to many miscellaneous matters as to railroads, see note § 454, ante. §492. ELEVATED OR UNDERGROUND RAILROADS. WHO MAY GRANT FRANCHISE. The legislative or other body to whom is intrusted the government of the county, city and county, city, or town, under [1] such regulations, restric- tions, and limitations, and [2] 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 construc- tion of elevated or underground railroad tracks over, aci-oss, or under the streets and public highways Of any such county, city and county, city, or town, for the term not exceeding fifty years; [Petition — By whom signed.] Provided, that before grant- ing such franchise there shall be presented to such legislative or other body a petition signed by the owners of a majority of the landed property, other than public property, on the line of said elevated portion applied for. History: Enacted March 27, 1895, Stats, and Amdts. 1895, p. 241; repealed by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 370, held unconstitutional, see history, § 4 ante. §493. TO WHAT ABOVE SECTION APPLIES. The pro- visions of section four hundred and ninety-two shall apply 330 Tit.III,cll.III.] SALE OF FRANCHISE. § 494 to any railwaj' corporation heretofore or hereafter incorpo- rated. History: Enacted March 27, 1895, Stats, and Amdts. 1895, p. 242; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 370, held unconstitutional, see history, § 4 ante; amended March 21, 1905, Stats, and Amdts. 1905, p. 576. §494. RAILROAD CORPORATIONS MAY SELL PROP- ERTY AND FRANCHISES TO OTHER RAILROADS. Any railroad corporation, person or persons, firm or corporation, owning any railroad in this state, may sell, convey, and trans- fer its property and franchises, or any part thereof, to any other railroad corporation, whether organized under the laws • of this state or of any other state or territory, or under any act of congress; and any other such railroad corporation receiving such conveyance may hold and operate such rail- road franchises and property within this state, build and operate extensions and branches thereof, and thereunto exer- cise the right of eminent domain, and do any other business in connection therewith, as fully and effectually to all intents and purposes as if such corporation were organized under the laws of this state; [Terms and conditions of sale.] Provided, that before such sale, conveyance, or transfer shall become operative, an ■ agreement in writing must be executed by the parties thereto, containing the terms and conditions of the purchase and sale, and its execution must be authorized by the board of direc- tors and ratified by three-fourths of the stockholders of each of the railroad companies that are parties to such conveyance and transfer, and said agreement or conveyance shall be recorded in each county through which said road or roads pass in this state; and [Not relieved from debts inenrred.] Provided further, that no sale, conveyances, or transfer under this act shall relieve the franchise or property sold, conveyed, or transferred, from the liability of the grantor contracted or incurred in the oper- ation, use, or enjoyment of such franchise or any of its priv- ileges; 331 § 494 CIVIL CODE. [Div.I.Pt.IV. [Competing roads shall not be purchased.] Provided, that this section shall not authorize any corporation to purchase any railroad property operated in competition with it; [Fares and toll shall not be increased. When lowered can- not be raised.] And provided further, that any or all estab- lished rates for fares and tolls for carrying passengers or freight between any points upon any railroad purchased under the provisions of this act, shall not be increased without the consent of the governmental authority in which is vested by law the power to regulate fares and freights; and provided further, that whenever a railroad corporation, which has purchased any line of road under this act, shall for the pur- poses of competing with any other common carrier lower its rates for transportation of passengers or freight from one point to another upon such line purchased, such reduced rates shall not be again raised or increased from such standard without the consent of the governmental authority in which shall be vested the power to regulate fares and freights; and [Penalty for violation. Duty of attorney-general.] Pro- vided further, that for every violation of the provisions of this act on the part of directors or governing officers of said corporation, the state shall be entitled to recover from such offending railroad company the sum of ten thousand dollars. It is hereby declared to be the duty of the attorney-general of the state, in the event of any such violation, to demand and collect from such company the said penalty; and he is hereby authorized and empowered to prosecute all the necessary actions in the name of the people of the state of California against such company in the courts of the state. All money so collected shall be paid into the general fund of this state. History: Enacted Feb. 27, 1903, Stats, and Amdts. 1903, pp. 50-51. 3 C. A. 668, 680, 87 P. 27 (this section relates exclusiyely to sales and transfers of property of one railroad company to another railroad company). As to many miscellaneous matters as to corporations, see note § 283, ante. 332, Tit.III,ch.III.] SALE OF FRANCHISE. § 494 As to many miscellaneous matters as to railroads, see note § 454, ante. Prior legislation covering- the same ground, with same num- ber to section, in almost the same language, was enafcted March 22, 1899; the latter enactment made no reference to the former; to remedy this anomalous condition the last session of the legislature passed an act repealing the former of these two sections 494 in the following terms: "Section four hundred and ninety-four of the Civil Code, as approved March 22, 1899, is hereby repealed; provided, that nothing in this act contained shall be deemed to repeal any of the provisions of section 494 of said code as approved February 27, 1903." See Stats, and Amdts. 1905, p. 576. 333 § 497 CIVIL CODE. [Div.I,Pt.IV. TITLE IV. STREET RAILROAD CORPORATIONS. § 497. Railway tracks. How authority is obtained to lay. Pro- pelling- pow'er. Limitations and restrictions. § 498. Limitations and restrictions. Manner of laying tracks. § 499. Two lines of street railway may use same tracks. § 500. Crossing tracks. Obstructions. § 501. Rates of fare on street-cars. [Manner of construction of street-cars.] Penalty. § 502. Time allowed for commencing and completing work. Penalty. Extension of time. § 503. May make further regulations and rules. § 504. Penalty for overcharging. § 505. Street railroads must furnish tickets. Penalty. § 506. Proof of agency. § 507. Reserved rights. § 508. License to be paid to city or town. § 509. Track for grading purposes. [Time may remain.] § 510. Law governing street railroads. § 511. Title applicable to natural persons alike with corpora- tions. §497. RAILWAY TRACKS. HOW AUTHORITY IS OBTAINED TO LAY. PROPELLING POWER. LIMITA- TIONS AND RESTRICTIONS. Authority to lay railroad tracks through the streets and public highways of any incor- porated city, city and county, or town, may be obtained 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 town, under such restrictions and limitations, and upon such terms and payment of license tax, as the city, city and county, or town authority may provide. [Motive power.] In no case must permission be granted to propel cars upon such tracks otherwise than by electricity, horses, mules, or by wire ropes running under the streets and moved by stationary engines, unless for special reasons in this title hereinafter mentioned; provided, however, 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 have power to impose such terms, restrictions, 334 Tit. IV.] LAYING TRACKS— POWER. § 497 and limitations as to the use of streets and the construction and mode of operating such electric and other roads as may, by such board or body, be deemed for the public safety or _ welfare. History: Enacted March 21, 1872, founded upon § 1 Act March 29, 1870, Stats. 1869-70, p. 481; amended March 3, 1876, Code •Amdts. 1875-6, p. 76; Feb. 25, 1891, Stats, and Amdts. 1891, p. 12; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 370, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 81 pars, annotation. 57 C. 160, 167 (construed and applied), 175 (construed), 176 (construed), 177 (construed with §499); 78 C. 360, 365, 20 P. 740 (miscited for §487); 90 C. 37, 38, 39, 27 P. 61 (construed and applied); 91 C. 338, 340, 27 P. 673, 674 (construed); 91 C. 449, 454, 25 A. S. 201, 27 P. 768, 770, 13 L. 754 (construed and applied); 105 C. 87, 92-94, 38 P. 530 (construed and applied); 117 C. 604, 611 (construed and applied), 616 (cited in dis. op.), 49 P. 736; 132 C. 677, 678, 64 P. 1065 (cited by error for §797); 142 C. 222, 228, 75 P. 575 (a franchise can be obtained only throug-h action of the council or g-overning- body of the. mu- nicipality). As to how far street-railroad company is . entitled to right of way over other vehicles, see 25 A. S. 477. As to license tax, see Kerr's Cyc. C. C. § 5»8 and note. As to many miscellaneous matters as to corporations, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. As to municipal power to impose conditions on giving con- sent to street railroads, see 36 L. 33-36. As to nature of interest of street-railway company in streets, see 25 A. S. 476. As to right of elevated railroad in street, see 25 A. S^ 479. As to railroad company's rights in streets, see 34 A. S. 684. As to right to adopt new improvements, see 25 A. S. 479. As to right to construct railway in street without compen- sation to abutting landowners, see 25 A. S. 478. As to right to maintain switches and turnouts, see 25 A. S. 478. As to street-railroad being an additional servitude, see 30 A. S. 775. As to street-railroad corporations, rig-hts, duties, and obli- gations with respect to streets, see 25 A. S. 475. As to street railroads being subject to municipal regulations, see 25 A. S. 479. As to what extent street railroads are public highways, see 25 A. S. 476. 335 § 497 CIVIL CODE. [Div.I,Pt,IV. STREET-RAILROADS — GENERALLY. Abutting owner — Remedy of as affected by his consent to construction.— See 7 L. N. S. 991. Same — ^Right as affected by track close to sidewalk. — See 1 L. N. S. 981. Acquiring right of way. — See 2 L. 255. Additional servitude in street — What constitutes. — See 2 A. C. 535; 28 A. S. 235; 47 A. S. 272; 4 L. N. S. 202. Allegations of negligence of, generally, sufliciency of. — See 59 L. 238. Authority to use streets. — See 1 L. 493. Baggage — Street-railway as carrier of passenger's effects. — See 9 A. C. 201. Cable line, care in operation of required. — See 7 L. 819. Child — What acts of, in attempting to cross street-car tracks, are negligence, as matter of law. — See 11 L. N. S. 166. Compelling operation of. — See 24 L. 564. Construction of electric road, appropriation of right of way. — See 8 L. 173. Contributory negligence — As affecting liability of. — See 34 L. 486; 9 L. N. S. 244; 11 L>. N. S. 166; 5 L. N. S. 1081. Same — As matter of law, in walking with due care upon track laid in public street. — See 9 L. N. S. 244. Crossing railroad without compensation. — See 29 L. 485. Differences of degree of care required of persons crossing electric or street-«ailroad tracks in city or country districts. — See 10 A. C. 336. Distinction between street-railroads and commercial rail- roads. — See 4 A. S. 449. Dogs on track, duties of company as to. — See 6 L. N. S. 911. Driver of vehicle has right to assume that motorman will give him time to cross track. — See 5 L. N. S. 1081. Duty — And liability — As carriers of baggage. — See 9 A. C. 201. Same — Same — As to vehicle moving along its tracks. — See 7 A. C. 1127. Same — Same — Of in reference to placing signal lights on cars. — See 10 A. C. 605. Same — Of pedestrian to stop, look and listen before crossing street-railroad tracks. — See 3 A. C. 334; also note § 454, ante. Same — ^Of, with respect to dogs on track. — See 6 L. N. S. 911. Same — Rights and obligations of with respect to streets. — See 25 A. S. 475. Same — To avoid children on track. — See 25 L. 663. Same — To avoid interference with extinguishment of fires. — See 12 L. N. S. 382. Same — To keep in repair portion of street occupied by its 336 Tit. IV.] STREET-RAILWAYS— GENERALLY. § 497 right of way in absence of contract or statutory requirement. — See 7. A. C. 381. Franchise, nature and extent of. — See 9 A. C. 683. Frightening of horses — ^By street cars, generally. — See 34 L. 482. Same — By bells, gongs and whistles. — See 34 L. 485. Headlights on street-cars, necessity of. — See 26 L. 300. Injuries — By collision with vehicle or horses. — See 25 L. 508. Same — To children, as to liability for. — See 7 A. C. 241. Liability of — For defect in track or street. — See 52 L. 448-463. Same — For injury by negligence of servant in charge of cars. — See 'lO L. N. S. 390. Same — For paving assessment. — See 46 L. 193. Same — For unskillfulness or negligence in constructing road in street. — See 3 L. 176. Motive power that may be used. — See 8 L. 539; 10 L. 176; 2 L. N. S. 138. Municipal control over — As a nuisance. — See 39 L. 609. Same — As to fares. — See 19 L. 570. Same — Effect of ordinance concerning liability for injury to pedestrian. — See 13 L. 74. Same — Ordinances — Concerning liability for injury to pedes- trians, effect of. — See 13 L. 74. Same — Same — Requiring conductor, validity of. — See 15 L. 604. Same — Power to compel change of grade in street. — See 70 L. 850. Same — Power to impose conditions when giving consent to railroad in street. — See 36 L. 33. Same — Power to make and enforce regulations respecting the protection of the public. — See 104 A. S. 636. Same — Regulation of carriage of passengers by. — See 19 L. 570. Nature and extent of franchise.— See 9 A. C. 683. Operation of cars in violation of luunieipal ordinances as neg- ligence per se. — See 9 A. C. 840. Organization of. — See 9 A. C. 683. Passengers, duties and liabilities of to. — See 118 A. S. 461. Power of municipality — To compel cliange of grade of rail- way in street. — See 70 L. 850. Same — To impose conditions when giving consent to railroad in street. — See 36 L. 33. Privilege of using street, as a contract within provision against impairing obligations. — See 50 L. 143. Regulation and control of. — See 10 A. C. 601. Remedy of abutting owners as affected by consent to con- struction. — See 7 L. N. S. 991. 337 § 498 CIVIL CODE. [Div.I.PtlV. Removal of obstruction from tracks, right to make. — See 1 A. C. 217, 219. Right — Of abutting owners as affected by track close to side- walk.— See 1 L. N. S. 981. Same — Of motorman to assume that no one will attempt to cross track so close in front of car as to render collision prob- able.— See 5 L. N. S. 1059. Same — To construct, as a franchise. — See 2 L. 55. Same- — To use electricity as motive power. — See 5 A. C. 53. Rules and regulations, right to make and enforce. — See 10 A. C. 273. Running car at speed in excess of that prescribed by ordi- nance, as negligence. — See 8 L. N. S. 1093. Street-car transfer — As to right of company to limit time or point of transfer. — See 8 L. N. S. 287. Same — Rights and duties of passengers receiving defective. — See 7 L,'. N. S. 97; 9 L. N. S. 851. Same — Validity of regulation of, requiring passenger to pay fare in case of dispute. — See 2 L. N. S. 695. Street improvement — Liability for paving assessment. — See 46 L. 193. Ultra vires, defense of is not available of in favor of, in ac- tion for negligence. — See 52 A. R. 358. Violating ordinance as to operation, as ground for private action. — See 5 L. N. S. 186. Walking on track of, as contributory negligence. — See 10 A. C. 947. §498. LIMITATIONS AND RESTRICTIONS. MANNER OF LAYING TRACKS. The city or town authorities, in granting the right of way to street-railroad corporations, 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 railways. In such cases, said railway shall be required to be constructed in such a manner as will present the least obstruction to the freedom of the streets on which it may be erected, when allowed by the granting power: 1. To construct their tracks on those portions of streets designated in the ordinance granting the right, which must be as nearly as possible in the middle thereof. 2. To plank, pave, or macadamize the entire length of the street, used by their track, between the rails, and for two 338 Tit. IV.] TWO LINES ON ONE TRACK. § 499 feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and with good crossings. 3. That the tracks must not be more than five feet wide within the rails, and must have a space between them suffi- cient to allow the cars to pass each other freely. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 212; April 3, 1876, Code Amdts. 1875-6, p. 77; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 371, held unconstitutional, see history, § 4 ante. See Kerr's Cvc. C. C. for 20 pars, annotation. 57 C. 515, 518 (construed); 87 C. 597, 599, 25 P. 765 (con- • strued and applied); 89 C. 304, 309, 26 P. 885, 887 (construed); 91 C. 449, 454, 25 A. S. 201, 27 P. 768, 770, 13 L. 754 (referred to with other sections); 146 C. 635, 638, SO P. 1076 (a resolu- tion of intention to improve a street is not invalid because it excepts such portion of the street, occupied by a railroad com- pany, as the law requires the company to keep in order at its own expense). As to duty of company to keep tracks in repair, remove snow, and exercise care over and pave streets, see 25 A. S. 477-482. As to liability of street-railway company for defects in track or street, see 52 L. 448-463. . As to liability of street railway company for paving assess- ment, see 46 L. 193-203. As to many miscellaneous matters — As to corporations gen- erally, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 497, ante. As to prismoidal railways, see Kerr's Cyc. C. C. I 498, intro- ductory note. §499. TWO LINES OF STKEET RAILWAY MAY USE SAME TRACK. Two or more lines of street railway, operated under different managements, may by lease or contract, use the same street or tracks upon such terms as may have been agreed upon between the companies operating such railways; and two lines of street railway operated under different man- agements may be permitted to use the same street or tracks for a distance of five blocks without such lease or contract, 339 §499 CIVIL CODE. [Div.I.Pt.IV. upon payment of an equal portion for the construction of the tracks and appurtenances used by such railways jointly; [Extent to i^hich may be used.] But in no case shall a company owning or operating one line of street railway be permitted to condemn the right to occupy and use the same street or tracks for a distance of more than five blocks con- secutively. [Lines of different gage.] Where such portion of such street shall be occupied by a track or tracks of a different gage from the track or tracks proposed to be constructed thereon by a line of street railway under a different manage- ment, such last-mentioned line of street railway may never- theless construct its track or tracks, subject to the limitation before prescribed, over the same ground as may be occupied by such prior track or tracks, provided the same can be so constructed as not to interfere with the operation of such prior track or tracks beyond such necessary interference therewith as shall be incident to such construction with rea- sonable skill, care and diligence. HLstory: Enacted March 21, 1872; amended Feb. 25, 1891, Stats, and Amdts. 1891, p. 13; amended March 21, 1907, Stats, and Amdts. 1907, p. 837, Kerr's Stats, and Amdts. 1906-7, p. 415. In effect immediately. See Kerr's Cyc. C. C. for 23 pars, annotation. 54 C. 74, 75 (construed and applied); 57 C. 160, 168 (construed and applied), 170, 177 (cited in dis. op.); 91 C. 449, 452, 454, 25 A. S. 201, 27 P. 768, 13 L. 754 (construed and applied); 115 C. 285, 297, 47 P. 60 (cited in discussion); 129 C. 180, 182, 183, 61 P. 912 (construed and applied); 135 C. 654, 659, 67 P. 1086 (referred to in discussion); 156 F. 455, 457 (construed as to power of city to grant to two companies, having railway tracks of different width, the right to operate their cars on the same street for the distance limited). As to joint use of tracks, see 27 Encyc. L. 26. As to many miscellaneous matters — As to corporations gen- erally, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 597, ante. As to right of one street-railway company to use tracks of another, see 25 A. S. 477. 340 Tit. IV.] CROSSING TRACKS — FARE. §§ 50O, 501 §500. CROSSIIVG TRACKS. OBSTRUCTIOINS. Any pro- posed railroad track may be permitted to cross any track already constructed, the crossing being made as provided in chapter two, title three, 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. As to crossing- other railroads, see 27 Encyc. L. 24, 25. Same — Without compensation, see 29 L. 367, 29 L. 485, 30 L. 508; 34 L. 572, 36 L. 839; 44 L. 269. As to many miscellaneous matters — As to corporations gen- erally, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 497, ante. §501. RATES OF FARE OlV STREET CARS. [MANNER OF CONSTRUCTION OF STREET CARS.] PENALTY. The rates of fare on the cars must not exceed ten cents for one fare for any distance under three miles, and in municipal cor- porations of the first class must not exceed five cents for each passenger per trip of any distance in one direction either going or coming, along any part of "the whole length of the road or its connections. The cars niust be of the most approved construction for the comfort and convenience of passengers, and provided with brakes to stop the same, when required. [Fine for yiolation.] A violation of the provisions of this section subjects the corporation to a fine of one hundred dollars for each offense. HLstory: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 371, held unconstitutional, see history, § 4 ante; amendment re- enacted March 16, 1903, Stats, and Amdts. 1903, pp. 172-173. See Kerr's Cyc. C. C. for 8 pars, annotation. 97 C. 553, 563, 33 A. S. 203, 32 P. 591 (cited, but thought not to apply since amendment of 1903); 134 C. 482, 485, 66 P. 734 (cited, but thought not to apply since amendment of 1903), 341 § 502 CIVIL CODE. [Div.I.Pt.IV. As to many miscellaneous matters — As to corporations gen- erally, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 497, ante. As to ordinance as evidence of speed, see 16 A. S. 247. As to speed of street-railroads, see 25 L. 663, 57 A. S. 735, 60 A. S. 591; 27 Encyc. L. 49. §502. TIME ALLOWED FOR COMMENCING AND COM- PLETING ^WUK. PENALTY. EXTENSION OF TIME. Work to construct the railroad must be commenced in good faith within not more than one year from the date of the taking effect of the ordinance granting the right of way, and said work must be completed within not more than three years after the taking effect of such ordinance; 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 ooinmeucing or completion, or both, of said work; not, however, to a time less than six months for commencing, and not less than eighteen months for completing the same. [Failure to comply — Forfeiture.] A failure to comply with either of the foregoing provisions of this section, or with either of the provisions of the ordinance granting said right of way, works a forfeiture of the right of way, and also of the franchise, unless the uncompleted portion is abandoned by the person or corporation to whom said right of way is granted, with the consent of the authorities granting the right of way, such abandonment and consent to be in writing. [Extension — Who may grant — When and for what term.] The authority granting the right of way shall have the power 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 com- pletion of the same. All extensions of time shall be in writ- ing, and made a matter of record in the municipality. Pro- 342 Tit. IV.] REGULATIONS, ETC.— OVER'CHARGES. §§ 503, 504 vided further, that this act shall not in any way affect any francliise or right of way granted before its passage. Hi.story: Enacted March 21, 1872; amended Feb. 25, 1895, Stats, and Amdts. 1895, p. 17. In effect Feb. 25, 1895. See Kerr's Cyc. C. C. for 46 pars, annotation. 57 C. 160, 178 (construed and applied); 91 C. 338, 341, 342, 27 P. 673, 674 (construed and applied); 101 C. 333, 337, 35 P. 993 (cited in discussion); (C. Jan. 6, 1895), 38 P. 986, 988, 990 (con- strued and applied); 117 C. 604, 611, 612, 616 (cited in dis. op.). 49 P. 736 (construed and applied); 152 C. 242, 244, 245, 92 P. 490 (the statute forms a part of the contract, and forfeiture is complete upon a failure to comply with the conditions granting- a franchise). As to forfeiture of franchise of railroad companies, see 30 A. S. 774. As to many miscellaneous matters — As to corporations gen- erally, see note §283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 497, ante. As to necessity of judicial act declaring forfeiture, see 5 A. S. 803-807. As to non-performance of condition in grant of franchise, see 5 A. S. 803-807. §503. MAT MAKE FURTHER REGULATIONS AND RULES. Cities and towns in or tlirough which street-rail- roads run may make such further regulations for the govern- ment of such street-railroads as may he necessary to a full enjoyment of the franchise and the enforcement of the condi- tions provided herein. History: Enacted March 21, 1872, founded upon §10 Act March 29, 1870, Stats. 1869-70, p. 483. See Kerr's Cyc. C. C. for 11 pars, annotation. 128 C. 431, 436, 437, 79 A. S. 47, 61 P. 68, 50 L. 55 (applied). As to many miscellaneous matters — As to corporations, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 497, ante. §504. PENALTY FOR OVERCHARGING. Any corpora- tion, or agent or employee thereof, demanding or charging a greater sum of money for fare on the cars of such street 343 §§ 505, 506 CIVIL CODE. [Div.I.Pt.IV. railroad than 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 hundred dollars, to be recovered in a civil action, in any justice's court having jurisdiction thereof, against the corporation. History: Enacted March 21, 1872, founded upon § 1 Act April 14, 1863, Stats. 1863, p. 296; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 371, held unconsti- tutional, see history, § 4 ante. §505. STREET lUILKOADS MUST FURNISH TICKETS. PENALTY. Every street-railroad corporation must provide, and, on request, furnish to all persons desiring a passage on its cars, any required quantity of passenger tickets or checks, each to be good for one ride. [Penalty for failure to comply.] Any corporation failing to provide and furnish tickets or checks to any person desiring to purchase the same at not exceeding the rate hereinbefore described, shall forfeit to such person the sum of two hun- dred dollars, to be recovered as provided in the preceding section; provided, that the provisions of this section shall not apply to such street-railroad corporations as charge but five cents fare. History: Enacted March 21, 1872, founded upon § 1 Act April 14, 1S63, Stats. 1863, p. 297; amended March 30, 1874, Code Amdts. 1873-4, p. 213; March 13, 1883, Stats, and Amdts. 1883, p. 84. In force March 13, 1883. §506. PROOF OF AGENCY. 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 money 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 office of the corporation, or vehicle belonging to the corporation, shall be prima facie evidence that such person was the agent, servant,* or employee of the corpora- tion, to receive the money, and give the ticket or check men- tioned. 344 Tit. IV.] RESERVED RIGHTS — LICENSE. §§ 507-509 History: Enacted March 21, 1872, founded upon § 3 Act April 14, 1863, Stats. 1863, p. 297; amended March 30, 1874, Code Amdts. 1873-4, p. 213. §507. RESERYED EIGHTS. In every grant to construct street railroads, the right to grade, sewer, pave, macadamize, 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. History: Enacted March 21, 1872, founded upon § 9 Act 1870, Stats. 1869-70, p. 483; amended March 30, 1874, Code Amdts. 1873-4, p. 214; amended by Code Commission, Act March 16,- 1901, Stats, and Amdts. 1900-1, p. 372, held unconstitutional, see history, § 4 ante. § 508. LICENSE TO BE PAID TO CITY OR TOWN. 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 cities or towns. Where any street railroad connects or runs through two or more cities or towns, a proportionate 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 the same is paid to any city or town authority. History: Enacted March 21, 1872, founded upon § 10 of Act March 29, 1870, Stats. 1869-70, p. 483. See Kerr's Cyc. C. C. for 6 pars, annotation. As to many miscellaneous matters — As to corporations gen- erally, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 497, ante. As to railroads in streets, right of municipal corporation to authorize same, see 98 A. D. 247. §509. TRACK FOR GRADING PURPOSES. [TIME MAY REMAIN.] The right to lay down a track for grading pur- 345 §§510,511 CIVIL CODE. [Div.I.Pt.IV. poses, 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 track 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. [Motive power.] The corporate authorities 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 on such grading track, 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. History: Enacted March 21, 1872, founded upon § 11 of Act March 29, 1870, Stats. 1869-70, p. 483. §510. LAW GOVERNING STREET RAILROADS. Street railroads are governed by the provisions of title three of this part, so far as they are applicable, unless such railroads are therein specially excepted. History: Enacted March 21, 1872; amended Marcli 30, 1874, Code Amdts. 1873-4, p. 214. See Kerr's Cyc. C. C. for 5 pars, annotation. 109 C. 571, 577 (construed and applied), 583, 584 (construed), 42 P. 225, 226; 125 C. 453, 454, 58 P. 64 (construed and applied). As to many miscellaneous matters — As to corporations gen- erally, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 497, ante. §511. TITLE APPLICABLE TO NATURAL PERSONS ALIKE WITH CORPORATIONS. When a street railroad is constructed, owned, or operated by any natural person, this title is applicable to such person in like manner as it is ai)plicable to corporations. History: Enacted March 21, 1872. 346 il Tit. v.] WAGON ROADS— COMMISSIONERS. § 512 See Kerr's Cyc. C. C. for 9 pars, annotation. 98 C. 311, 314, 33 P. 199, 200 (construed with otlier sections); 132 C. 677, 678, 64 P. 1065 (construed witli other sections). As to many miscellaneous matters — As to corporations gen- erally, see note § 283, ante. Same — As to railroads generally, see note § 454, ante. Same — As to street-railroads, see note § 497, ante. TITLE V. WAGON ROAD CORPORATIONS. § 512. Three commissioners to act with surveyor. § 513. Survey and map to be filed and approved. § 514. Bridges or ferries on line. Tolls, limits of. Franchise- forfeited, when. § 515. No tolls to be charged on highways or public roads. § 516. Rates of toll must be posted. § 517. Persons detained until toll is paid. § 518. Persons unnecessarily detained or overcharged, damages. § 519. Persons avoiding tolls to pay five dollars. § 520. Penalties for trespasses on property of corporation. § 521. Revenue, how appropriated. [Reduction of tolls, when.] § 522. Property may be mortgaged or hypothecated. § 523. This title applies to natural persons as well as corpora- tions. § 524. Franchises granted for construction of roads for use of horseless vehicles. §512. THREE COMMISSIONERS TO ACT WITH SUR- VEYOR. Where a corpoi'ation is formed for the construc- tion and maintenance of a wagon road, the road must be laid out as follows: Three commissioners must act in conjunc- tion with the sui'veyor of the corporation, two to be appointed by the board of supervisors of the county through which the road is to run, and one by the corporation, who must [1] lay out the proposed road and [2] report their proceedings, together [3] with the map of the road, to the supervisors, as provided in the succeeding section. History: Enacted March 21, 1872, founded on § 2 Act April 22, 1853, Stats. 1853, p. 114; amended March 30, 1874, Code Amdts. 1873-4, p. 214. 347 § 513 CIVIL CODE. [Div.I,Pt.IV. See Kerr's Cyc. C. C. for 37 pars, annotation. 95 C. 78, 86, 30 P. 129, 131 (construed). As to many miscellaneous matters as to corporations gren- erally, see note § 283, ante. Facts necessary to be stated in articles of incorporation of wagon road company. — See Kerr's Cyc. C. C. § 291 and note. Provisions relating to toll roads in general, their construc- tion, use, obstruction, inspection and repair. — See Kerr's Cyc. Pol. C.^8§ 2779, 2832 and notes. Right to sell franchise of toll road under execution. — See Kerr's Cyc. C. C. § 388 and note. Subscribed capital stock required of wagon road companies. — See Kerr's Cyc. C. C. § 293 subd. 3. §513. SURVEY AND MAP TO BE FILED AND AP- PItOVED. When the route is surveyed a map thereof must be submitted to and filed with the board of supervisors of each county through 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 hun- dred feet, and the supervisors must either approve or reject the survey. If approved, it must be entered of record on the journal of the board, and such approval authorizes the use of all public lands and highways over which the survey runs; but the board of supervisors must require the corporation, at its own expense, and the corporation must so change and open the highways so taken and used as to make the same as good as before the appropriation thereof; and must so con- struct all crossings of public highways over and by its road and toll-gates, as not to hinder or obstruct the use of the same. History: Enacted March 21, 1872, founded on § 1 Act 1854, Stats. 1854, p. 74; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 372, held unconstitutional, see history, §4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 577. See Kerr's Cyc. C. C. for 43 pars, annotation. As to franchise being subject to execution, see 27 A, R. 84. As to grant not preventing subsequent grant, see 26 A.. R. 294. As to judicial sale of franchise, see 20 L. 737-740. As to location and construction of turnpike and toll roads, see 29 Encyc. L. 8-13. 348 Tit. v.] BRIDGES AND FERRIES— TOLLS. § 514 As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to nature and powers of turnpike and toll roads, see 29 Encyc. L. 3-7. § 514. BRIDGES OR FERRIES ON LINE. TOLLS, LIMIT OF. FRANCHISE FORFEITED, WHEN. 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 super- visors of the proper county through which the road passes, or in which the ferry or bridge is situate. [Amount of toHs permissible.] But in no case must the tolls be more than sufficient 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 attending to the roads, bridges, or ferries. [Penalty for yiolation.] If tolls, other than as herein pro- vided, are charged or demanded, the corporation forfeits its franchise, and must pay to the party so charged one hundred dollars as liquidated damages. Hi.story: Enacted March 21, 1872, founded on § 1 Act 1857, Stats. 1857, p. 280; amended March 28, 1874, Code Amdts. 1873-4, p. 272; March 30, 1874, Code Amdts. 1873-4, pp. 214-215; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 372, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905; p. 577. See Kerr's Cyc. C. C. for 61 pars, annotation. 80 C. 338, 341 (applied — forfeiture of franchise for toll road by collecting illegal toll; erroneously cited as § 2799), 22 P. 254, 255 (correct citation); 88 C. 632, 633, 26 P. 513 (construed and applied); 122 C. 335, 338, 55 P. 10 (applied). As to inspection of public toll-books, see 27 L. 82-85. As to legislative regulation of toll, see 20 L. 177-189. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to rights over existing public highways and fixing of toll thereon, see Kerr's Cyc. C. C. § 515 and note. As to right to take tolls without franchise, see 37 L. 711-719. As to toll roads, see Kerr's Cyc. Pol. C. §§ 2779-2832 and notes. 349 §§ 515-517 CIVIL CODE. [Div.I,Pt.IV. §515. NO TOLLS TO BE CHARGED ON HIGHWAYS OR PUBLIC ROADS. When any highway or public road is taken and used by any wagon 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 highway or public road by team- sters, travelers, drovers, or any one transporting property over the same. History: Enacted March 21, 1872, founded upon § 3 Act April 22, 1853, p. 115. See Kerr's Cyc. C. C. for 8 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 516. RATES OF TOLL MUST BE POSTED. The corpo- tion must affix and keep up, at or over each gate, or in some conspicuous place, so as to be conveniently read, a printed list showing, first, the date when the franchise or privilege under which the right to collect tolls is claimed, was granted and the term of duration of said franchise; second, the date upon which rates of tolls were last fixed by the board of supervisors; and, third, the rates of tolls levied and demanded. Failure to comply with the provisions of this act shall work an immediate forfeiture of franchise. History: Enacted March 21, 1872, founded upon § 30 Act May 12, 1853, Stats. 1853, p. 176 amended Feb. 14, 1901, Stats, and Amdts. 1900-1, p. 5. In force Feb. 14, 1901. § 517. PERSONS DETAINED UNTIL TOLL IS PAID. Each toll-gatherer may prevent from passing through his gate any person, animal, or vehicle, subject to toll, until the toll author- ized to be collected for such passing has been paid. History: Enacted March 17, 1872, founded on § 29 Act May 12, 1853, Stats. 1853, p. 176; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 372, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 577. 57 C. 594, 602 (cited with other sections, apparently by error). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 350 I Tit. v.] DETENTION— AVOIDING TOLLS. §§.518-520 §518. PERSONS UNNECESSARILY DETAINED OR OVERCHARGED, DAMAGES. Every toll-gatherer who, at any gate, unreasonably hinders or delays any traveler or passenger or any vehicle or animal liable to the payment of toll, or demands or receives from any person more than he is author- ized to collect, for each offense forfeits the sum of twenty-five dollars to the person aggrieved. History: Enacted March 21, 1872, founded upon § 31 Act May 12, 1853, Stats. 1853, p. 176; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 372, held unconstitu- tional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts., 1905, p. 578. See Kerr's Cyc. C. C. for 7 pars, annotation. ' 51 C. 489, 490 (construed and applied). As to many miscellaneous matters as to corporations gen- erally, see note 283, ante. § 519. PERSONS AVOIDING TOLLS TO PAY FIVE DOL- LARS. 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 theveon on ground adjacent thereto, and again enters upon such road, for each offense forfeits the sum of five dollars to the corporation injured. History: Enacted March 21, 1872, founded upon § 33 Act May 12, 1853, Stats. 1853, p. 176. § 520. PENALTIES FOR TRESPASSES ON PROPERTY OF CORPORATION. Every -person who: 1. Wilfully breaks, cuts down, defaces, or injures any mile- stone or post on any wagon, turnpike, or plank road; or, 2. Wilfully 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 with- out having paid the legal toll; For each offense forfeits to the corporation injured the 351 §§521,522 CIVIL CODE. [Div.I,Pt.IV. sum of twenty-five dollars, in addition to the damages result- ing from his wrongful act. History: Enacted March 21, 1872, founded on § 32 Act May 12, 1853, Stats. 1853, p. 176. As to breaking down toll-gate on road out of repair, see Kerr's Cyc. C. C. § 520, note. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 521. REVENUE, HOW APPROPRIATED. [REDUCTIOI^ OF TOLLS, WHEN.] The entire revenue derived from the road shall be appropriated: first, to repayment to the corpo- ration of the costs of its construction, together with the inci- dental 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 hundred and fourteen. When the repayment of the cost of construc- tion is completed, the tolls must be so reduced as to raise no more than an amount sufficient to pay said dividend, and incidental expenses, and to keep the road in good repair. History: Enacted March 21, 1872, founded on § 4 Act April 22, 1853, p. 115; amended Marcli 30, 1874, Code Amdts. 1873-4, p. 215. §522. PROPERTY MAT BE MORTGAGED OR HYPOTH- ECATED. The corporation may mortgage or hypothecate its road and other property for funds with which to construct or repair its road, but no mortgage or hypothecation is valid or binding unless at least twenty-five per cent of the capital stock subscribed has been paid in and invested in the con- struction of the road and appurtenances, and then only after an affirmative vote of two-thirds of the capital stock sub- scribed. Hi.story: Enacted March 21, 1872, founded on § 19 Act May 12, 1853, Stats. 1853, p. 173; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 373, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 578. 352 I Tit. v.] FRANCHISES— HORSELESS VEHICLES. §§523,524 See Kerr's C^'C. C. C. for 7 pars, annotation. SO C. 338, 341, 22 P. 254, 255 (construed and applied). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §523. THIS TITLE APPLIES TO NATURAL PERSOIVS AS WELL AS CORPORATIONS. When a wagon, turnpike, or plank road is constructed, owned, or operated by any natural person this title is applicable to such person in like manner as it is applicable to corporations. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 79 C. 166, 168, 21 P. 538 (construed and applied); 80 C. 338, 341, 22 P. 254, 255 (applied); 98 C. 311, 313, 33 P. 199, 200 (referred' to in discussion). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §524. FRANCHISES GRANTED FOR CONSTRUCTION OF ROADS FOR USE OF HORSELESS VEHICLES. The leg- islative or other body to whom is intrusted the government of any county, city and county, city, or town, may, under such regulations, restrictions, and limitations as it may provide, subject to existing laws, grant franchises for the construction of paths and roads, either on the surface, elevated, or depressed, on, over, across, or under the streets and public highways of any such county, city, or town, for the use of bicycles, tricycles, motorcycles, and other like horseless vehi- cles, for a term not exceeding fifty years. Ill incorporated eities no francliise must be granted for the purpose herein expressed, unless the consent in writing of the owners of a majot-ity of the frontage upon the road or street along which said path or road is sought to be con- structed, is first had and obtained, and iiled with such legisla- tive or governing body. History: Enacted by Code Commission, Act. March 16, 1901, Stats, and Amdts. 1900-1, p. 373, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 578. Kerr's C. C. — 12 353 § 528 CIVIL CODE. [Div.I,Pt.IV. TITLE VI. BRIDGES, FERRY, WHARF, CHUTE, AND PIER CORPO- RATIONS. § 528. Toll not to be collected without authority. § 529. Corporate existence ceases, when. § 530. President and secretary to make annual report to super- visors; what report must contain. Damages for failure to report. § 531. This title to apply to natural persons alike with corpo- rations. §528. TOLL NOT TO BE COLLECTED WITHOUT AUTHORITY. No corporation must construct, or take tolls on, a bridge, ferry, wharf, chute, or pier until authority is granted therefor by the supervisors, or other governing body having authority in that behalf. History: Enacted March 21, 1872, founded upon § 1 Act April 8, 1858, Stats. 1858, p. 120, as amended by § 1 Act 1870, Stats. 1869-70, p. 526; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 373, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 579. See Kerr's Cyc. C. C. for 6 pars, annotation. 136 C. 36, 49, 68 P. 308 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Public ferries and toll-bridges — General provisions governing. —See Kerr's Cyc. Pol. C. §§ 2843-2858, 2870-2881, 2892-2895 and notes. Wharves, chutes and piers — General provisions governing. — S^e Kerr's Cyc. Pol. C. §§ 2906-2921 and notes. FERRIES — GENERALLY. Assignability of. — See 23 Cent. Dig. col. 902, § 43. Boats, buildings and landings. — See 23 Cent. Dig. col. 920, § 67-69. Contracts of. — See 59 L. 543-545. Establishment — And maintenance of. — See 23 Cent. Dig. col. 863, §§ 1-73. Sam,e — Regulation and protection of. — See 59 L. 513-555. Exclusiveness of right. — See 59 L. 538-540. Extent and exclusiveness of franchise. — See 23 Cent. Dig. col. 896, §§ 38-40. 354 ) Tit. VI.] FERRIES— GENERALLY. § 528 Exting-uishment of, by abandonment and other means. — See 59 L. 554, 555. Ferries between states. — See 1 A. C. 110; 27 A. S. 555. Ferryman — As common carrier. — See 68 L. 153-160. Same — Rights and duties of. — See 59 L. 546-553. Same — Same — Right to tolls. — See 59 L. 546. Forfeiture of purpose for infringement. — See 23 Cent. Dig. col. 908, § 52. Franchises and privileg-es of. — See .23 Cent. Dig', col. 871, §§9-66. Grant or leave by public authority. — See 23 Cent. Dig-, col. 892, §§ 34-37. Imputing carrier's negligence to passenger on. — See 8 L. N. S. 622. Infringement and disturbance of rights. — See 23 Cent. Dig. col. 904, §§ 46-59. Injunction against infringement of or injury to rights. — See 23 Cent. Dig. col. 912, § 59. Injuries to ferry property. — See 23 Cent. Dig. col. 927, § 72. Landings — Acquisition and rig^ht to use. — See 59 L. 535. Legislative regulation of rates of toll. — See 33 L. 180. Mode of transfer of. — See 23 Cent. Dig. col. 903, § 44. Nature — And construction of franchise of. — See 23 Cent. Dig. col. 871, §§ 9, 10. Same — And extent of right of franchises. — See 1 A. C. 104. Necessity of franchises for. — See 37 L. 712. Offenses in maintaining or discontinuing. — See 23 Cent. Dig. col. 927, § 73. Over interstate streams, state grant of franchises for. — See 2 A. C. 691; 27 A. S. 555. Persons who may acquire franchise. — See 59 L. 528; 23 Cent. Dig. col. 879, §§ 18-21. Power to grant franchise for. — See 23 Cent. Dig. col. 874, §§ 11-17. Same — Of municipality. — See 59 L. 521. Prescription. — See 23 Cent. Dig. col. 883, § 22. Proceedings to acquire franchise for. — See 23 Cent. Dig. col. 884, §§ 23-33. Regulation — And operation of.— See 23 Cent. Dig. col. 925, §§ 74-95. Same — And supervision of. — See 59 L. 542. Rights — And duties of ferrymen. — See 59 L. 546. Same — And liabilities of transferee of. — See 23 Cent. Dig. col. 903, § 45. Same — Of landing and embarking. — See 23 Cent. Dig. col. 900, § 41. Sale and transfer of. — See 23 Cent. Dig. col. 921, 922, §§ 70, 71. 355 §§ 529, 530 CIVIL, CODE. [Div.I.Pt.IV. Termination and removal of. — See 23 Cent. Dig. col. 915, §§60-66. Tolls — Right to. — See 59 L. 546. Transferability and descendibility of ferry franchises or licenses. — See 2 A. C. 693; 59 L. 543. Transfer of. — As to generally, see 23 Cent. Dig. col. 902, §§ 42-45. Same — Method of making.— See 2 A. C. 691. Same-^— Of contracts of. — See 59 L. 543. Who are customers. — See 23 Cent. Dig. col. 906, § 49. Who entitled to receive franchise. — See 59 L. 528. Who may grant.— See 59 L. 521-526. § 529. CORPORATE EXISTENCE CEASES, WHEN. Every such corporation ceases to be a body corporate : 1. If, within six months from filing its articles of incorpo- ration, it has not obtained such authority from the board of supervisors, or other governing body having authority in that behalf; and if, within one year thereafter, it has not com- menced 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 articles of incor- poration, the bridge, wharf, chute, or pier is not completed; 3. If, when the bridge, wharf, chute, or pier of the corpo- ration is destroyed, it is not reconstructed 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 is obtained to establish it, or if at any time thereafter it ceases for a like term consecutively to perform the duties imposed by law. History: Enacted March 21, 1872, founded upon § 169 Act April 22, 1850, Stats. 1850, p. 373; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 373, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 579. §530. PRESIDENT AND SECRETARY TO MAKE ANNUAL REPORT TO SUPERVISORS; WHAT REPORT TO CONTAIN. DAMAGES FOR FAILURE TO REPORT. The president and secretary of every bridge, ferry, wharf, chute, 356 Tit. VI.] ANNUAL REPORT. § 53O or pier corporation must annually, under oath, report to the board of supervisors, or other governing body having author- ity in that behalf, of the county in which the articles of incor- poration are filed: 1. The cost of constructing and providing all necessary appendages and appurtenances for its 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 its 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 separately; 5. The a,mount of dividends made, and the indebtedness of the corporation, specifying for what it was incurred; 6. Such other facts and particulars respecting the business of the corporation, as the board of supervisors or other gov- erning body having authority in that behalf may require. [Publication of report.] This report the president and secretary must cause to be published 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 or other governing body having authority in that behalf. A failure to make such report subjects the corporation to a penalty of two hundred dollars, and for every week per- mitted to elapse after such failure an additional penalty of fifty dollars, payable in each case to the county from which the authority of the corporation was derived. [Duty of district attorney or city attorney.] All such cases must be reported by the board of supervisors, or other governing body having authority in that behalf, to the dis- trict attorney or city attorney, who must commence an action therefor. History: Enacted March 21, 1872, founded upon §§ 170-173 Act April 22, 1850, Stats. 1850, p. 373; amended by Code Com- mission, Act March 6, 1901, Stats, and Amdts. 1900-1, p. 374, held unconstitutional, see history, § 4 ante; amendment re- enacted March 25, 1905, Stats, and Amdts. 1905, pp. 579-580. 357 § 531 CIVIL CODE. [Div.I,Pt.IV. §531. THIS TITLE TO APPLY TO NATUK AL PERSONS ALIKE WITH CORPORATIONS. When a bridge, ferry, wharf, chute, or pier is constructed, operated, or owned by a natural person, this title is applicable to such person in like manner as it is applicable to corporations. IliMtury: Enacted March 21, 1872. 98 C. 311, -314, 33 P. 199, 200 (referred to in connection with § 511 in discussion). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 358 Tit. VII.] TELEGRAPH, ETC. — USE OF WAY. § 535 TITLE VII. TELEGRAPH AND TELEPHONE CORPORATIONS. [The former Title VII, including §§ 536-541, was repealed by- Act March 20, 1905, and the following sections substituted there- for. Stats, and Amdts. 1905, p. 491. Prior legislation upon which original Title VII was founded will be found in Stats. 1850, p. 347, § 152; 1857, p. 117, § 2; 1862, p. 290, § 8.] § 536. May use right of way along waters, roads, and highways. § 537. Liability for damaging telegraph or telephone property. § 538. Penalty for wilfully or maliciously injuring telegraph or telephone property. § 539. Conditions on which damage to subaqueous cable may be . recovered. § 540. May dispose of certain rights. §536. MAY USE RIGHT OF WAY ALO^G WATERS, ROADS, AND HIGHWAYS. Telegraph or telephone corpora- tions may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this state, and may erect poles, posts, piers, or abutments for supporting the insulators, 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 highway or interrupt the navigation of the waters. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 492; see introductory note to this title. See Kerr's Cyc. C. C. for 20 pars, annotation. 149 C. 744, 750, 87 P. 1023 (cited, with act of Congress, as to right of telegraph company). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Common carriers — Telegraph and telephone companies as. — See Kerr's Cyc. C. C. §§ 2207-2209 and notes. Compensation — Abutting owner. — See 28 A. S. 229-236. TELEGRAPH AND TELEPHONE COMPANIES — GENERALLY. Abutting owners entitled to compensation for additional servitude. — See 28 A. S. 329-336. Additional servitudes, poles and wire of, whether constitutes 359 § 536 CIVIL CODE. [Div.I,Pt.IV. on the public streets and highways. — See 49 A. R. 14; 54 A. R. 290; 3 L. N. S. 323; 7 L. N. S. 87. As common carriers. — See Kerr's Cyc. C. C. §§ 2207-2209 and notes; 10 A. C. 855. Are agents of the party employing, and he must suffer for mistakes in transmission. — See 39 A. R. 359. Blanks, conditions in limiting liability for damages. — See 11 A. R. 168. Character of telegraph property. — See 9 A. C. 1190. Cipher messages, liability for mistakes in transmitting. — See 46 A. R. 731. Compensation to abutting owners. — See 28 A. S. 329-336. Conditions — As to repeating messages, mistakes, delays, etc., when valid. — See 45 A. R. 488. Same — Exempting company from liability for errors in trans- mission unless messages are repeated. — See 24 A. R. 283. Same — Which may impose on senders of messages. — See 71 A. D. 463. Contingency of possible action of sendee, or of some third person, as affecting liability for failure properly to transmit and deliver telegram. — See 12 L. N. S. 748. Contract by telegraph, and the admissibility of telegrams as evidence. — See 110 A. S. 742. Contract in blank telegram — Conflict of law as to. — See 63 L. 532. Same — For presentation of claim. — See 3 L. 224. Same — For claiming damages. — See 11 L. 102. Same — Limiting liability, reasonableness of. — See 2 L. 601; 4 L. 611; 13 L. 510. Damages, what are proper elements of in action for failure to deliver messages. — See 10 A. S. 778; 117 A. S. 286. Delay in applying for injunction against maintenance of, in highway. — See 8 L. N. S. 1091. Discrimination, duty of to serve the public without. — See 59 A. R. 172. Duty of telegraph company — And liability of, as to delivery of message addressed to person "in care of another." — See 7 A. C. 734. Same — To ascertain identity or authority of sender of mes- sage.^See 4 L. N. S. 181. Same — To find the person addressed. — See 27 A. S. 923. Same — To notify sender of message where it can not be promptly transmitted or delivered. — See 67 L. 153. Evidence — Admissibility of telegram in behalf of person re- ceiving same in reply to another. — See 44 L. 438. Same — Of conversation by telephone. — See 1 A. C. 802; 8 A. C. 447; 17 L. 440. 360 Tit. VII.] TELEGRAPHS AND TELEPHONES. § 536 Same — Same — Necessity and sufficiency of identification as foundation for admission of conversation or communication by teleplione. — See 6 L. N. S. 1180. Same — Telegrams left for transmission or message delivered, as primary or best. — See 8 A. C. 270. General duties and liabilities of. — See 81 A. D. 613. Imposing license fee for use of streets. — See 1 L. N. S. 581. Injunctions against poles and wires as public nuisance. — See 44 L. 577. Injury to feelings as element of damages for failure to trans- mit or deliver message. — See 2 L. 767; 9 L. 669; 13 L. 859. Law governing liability of telegraph company. — See 5 L. N. S. 751. Law of the telephone. — See 10 A. S. 128. Liability of telegraph company — For delivery of false, forged or fraudulent message. — See 1 A. C. 578. Same — For failure to transmit telegram. — See 10 L. 515. Same — For frauds of fraudulent messages. — See 1 A. C. 573; 5 A. C. 515. Same — For neglect to deliver telegram. — See 10 L. 515. Same — For receiving and sending libelous message. — See 9 A. C. 695; 9 L. N. S. 140. Same — For receiving and transmitting libelous message. — See 9 A. C. 697. Same — For transmission or delivery of forged message. — See 65 L. 803. Same — Sending message to office after closing hours. — See 53 L. 732. Same — To undisclosed principal of sendee. — See 4 L. N. S. 678. Limits for delivery of telegrams. — See 34 L. 431. Loss or profits as element of damage for breach of contract, as to. — See 53 L. 91. Mandamus to compel performance of duties of. — See 38 A. R. 587; 44 A. R. 241. Measure of damage for negligence — As to, generally, 1 A. C. 346; 1 A. C. 359. Same — Failure to transmit money — As to, generally, 7 A. C. 531. Same — Same — ^Measure of damages recoverable against com- pany for. — See 7 A. C. 535. Same — Liability of telegraph company for erroneous trans- mission of message announcing prices of market. — See 3 A. C. 429. Same— Loss of professional fees. — See 5 A. C. 730. Same — Mental anguish^-Doctrine of in telegraph cases. — See 1 A. C. 355. Same- — Same — Conflict of laws as to recovery of. — See 7 A. C. 1068. 361 § 536 CIVIL CODE. [Div.I.Pt.IV. Same — Necessity that damages for failure to ti'ansmit but contemplated. — See 1 A. C. 361; 10 A. C. 479. Same — Right of person whose name or interest does not appear on face of telegram or otherwise to recover damages for.— See 10 A. C. 648. Same — Same — Evidence of mental suffering. — See 2 A. C. 55; 10 A. C. 476. Same — Same — Excessive damages for. — 'See 1 A. C. 346. Same — Telegram quoting selling price or offering bid. — See 3 A. C. 424; 3 A. C. 712. Same — To deliver message. — See 7 L. 581; 9 L. 669; 10 L. 515; 53 L. 738; 63 L. 532. Municipal regulations of. — See 1 A. C. 110. Necessity and sufficiency of identification as a foundation for the admission of the conversation or communication by tele- phone.— See 6 L. N. S. 1180. Notices limiting liability of unless the message is repeated. — See 9 A. R. 149. Poles and wires — As additional burden in highway. — See 17 L. 480; 24 L. 721. Same — As nuisance in street subject to municipal control. — See 39 L. 619. Same — As personalty or realty. — See 9 A. C. 1192. Same — Injunction against as public nuisance. — See 44 L. 577. Same — In streets and highways and across private property. — See 28 A. S. 229. Privilege of using streets for as contract within provision impairing obligations. — See 5 L. 146. Right of addressee of telegram to sue for failure to deliver same. — See 2 A. C. 398. Right of person not mentioned in telegram whose interest is not communicated to the company, to recover for mental an- guish.— See 8 L. N. S. 249. Right of way of. — See 2 A. C. 152; 10 A. C. 464. Right to damage against telegraph company for mental anguish on account of business affairs.- — See 12 L. N. S. 886. Right to transfer or mortgage privilege to use street for purposes of. — See 47 L. 87. Servitudes, additional, when constitute. — See 106 A. S. 260. Statutes penalize negligent handling of telegrams, as regula- tion of interstate commerce. — See 2 A. C. 513. Statutory penalty for neglect to receive or transmit mes- sage. — See 7 L. 584. Stipulations in blanks, whether bind receivers of messages. — See 61 A. S. 214. Sufficiency of message to charge with notice of importance. — See 10 L. 515. 362 Tit. VII.] TELEGRAPHS AND TELEPHONES. § 536 Telegrams— Admissibility of in evidence on behalf of person receiving in reply to another. — See 44 L. 438. Same — Given by telephone. — See 56 L. 745. Same — In writing- to make contract within statute of frauds. — See 50 L. 240. Same — Interstate as interstate commerce. — See 24 L. 161. Same — Not written on company's blank. — See 56 L. 741. Same — Validity of notice sent by. — See 61 L. 933. Telephone companies — As to legislative control of. — See 2 L. 278; 5 L. 161; 24 L. 161. Same — Same — Of rates of. — See 33 L. 181. Same — As a common carrier, discriminations. — See 5 L. 161. Same — Compulsory service. — See 15 L. 321. Same — Control over — Foreign company. — See 13 L. 454; 15 L. 322; 24 L. 161; 24 L. 311, 327; 33 L. 181. Same — Evidence of conversation by. — See 17 L. 440. Same — Franchise, right in street, poles and wires. — See 7 L. 200; 17 L. 480; 24 L. 721; 39 L. 619; 47 L. 87; 50 L. 146; 66 L. 56. Same — Same — As additional burden on easement. — See 7 L. 200. Same — Same — Injvmction against poles and wires as public nuisance. — See 44 L. 577. Same — Poles and wires— As nuisance in street subject to municipal control. — See 39 L. 619. Same — Same — As additional burden in highway. — See 17 L. 480; 24 L. 721. Same — Same- — Injunction against as such nuisance. — See 44 L. 577. Same — Privilege of using street for telephone line, as con- tract within provision impairing obligations. — See 50 L. 146. Same — Rights of. — See 1 L. 799. Same — Same — To transfer or mortgage privilege to street for purposes of. — See 47 L. 87. Same — Statutes regulating prices and requiring service on equal terms to all. — See 31 L. 807. Same — Telegrams given by. — See 56 L. 745. Same — Validity of notice sent by. — See 61 L. 933. Time and place of consummation of contract when offer by letter is accepted by telegram, or vice versa. — See 6 L. N. S. 1016. Transmission and delivery of messages — Duty of company. — See 8 A. C. 469; 10 A. C. 855. Same — Duty and liability of telegraph company as to delivery of message addressed to person "in care of another." — See 5 A. C. 734. Same — Place of performance. — See 7 A. C. 1065. Same — Time of delivery.-— See 8 A. C. 469. 363 §§ 537, 538 CIVIL CODE. [Div.I,Pt.IV. Same — To hold delivery must be made. — See 5 A. C. 730, 734. Same — Who may recover for failure to deliver. — See 2 A. C. 396. Validity of limitation of liability of telegraph company for unrepeated messages. — See 11 L. N. S. 560. Validity of stipulation on telegraph blank — Requiring claim for damages or statutory penalty to be presented within cer- tain time. — See 4 A. C. 613. Same-T-Limiting liability of company unless message is re- peated. — See 10 A. C. 857. Whether are common carrier. — See 45 A. R. 487. Who may recover damages for delay in delivering telegram. — See 9 L. 669. §537. LIABILITY FOR DAMAGING TELEGRAPH OR TELEPHONE PROPERTY. Any person who injures or destroys, through want of proper care, any necessary or use- ful fixture of any telegraph or telephone corporation, is liable to the corporation for all damages sustained thereby. Any vessel which, by dragging its anchor, or otherwise, breaks, injures, or destroys the subaqueous cable of a telegraph or telephone corporation, subjects its owner to the damages hereinbefore specified. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 492; see introductory note to this title. 82 C. 600, 602, erroneously cited, and in 23 P. 134, 135, § 331 is erroneously cited to take the place of § 537. A corporation may give credit for its stock as well as for any other prop- erty sold by it, but there is no lien, in this state, in favor of a corporation, for unpaid instalments of subscriptions for stock. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Criminal prosecution for malicious injury to telegraph lines, etc. — See Kerr's Cyc. Pen. C. §591 and note where the authorities will be found fully collected. §538. PENALTY FOR WILFULLY OR MALICIOUSLY INJURING TELEGRAPH OR TELEPHONE PROPERTY. Any person who wilfully and maliciously does any injury to any telegraph or telephone property, mentioned in the pre- ceding section, is liable to the corporation for one hundred 364 rpi^. VII.] DAMAGES TO CABLE. §§539,540 times the amount of actual damages sustained thereby, to be recovered in any court of competent jurisdiction. History: Enacted March 20, 1905, Stats, and Amdt.s. 190.5, p. 492; see introductory note to this title. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Criminal prosecution for malicious injury to telegraph lines, etc. See Kerr's Cyc. Pen. C. § 591 and note where the authori- ties will be found fully collected. §539. CONDITIONS ON WHICH DAMAGES TO SUBA- QUEOUS CABLE MAY BE RECOVEKED. No telegraph or telephone corporation can recover damages for the breaking or injuring of any subaqueous telegraph or telephone cable, unless such corporation has previously erected on either bank of the waters under which the cable is placed, a monument, 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 the purpose of the monuments, and the general course, landings, and termini of the cable. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 492; see introductory note to this title. §540. MAY DISPOSE OF CERTAIN RIGHTS. Any tele- graph or telepl^one 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, privileges, franchise, or property of the corpora- tion, except its corporate franchise. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 492; see introductory note to this title. 865 § 548 CIVIL CODE. [Div.I,Pt.IV. TITLE VIII. WATER AND CANAL CORPORATIONS. § 548. Corporation may obtain contract to supplj- city or town. § 549. Must furnish water for family use upon demand. Rules may be prescribed. §550. Right to use streets, ways, alloys, and roads [repealed]. § 551. Construction of canal, etc. Construction and repair of bridges. Supervisors may constrvict bridges and recover therefor. § 552. Right of purchasers to use water for irrigating. §548. CORPOKATION MAY OBTAIN COXTRACT TO SUPPLY CITY OR TOWX. 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 authori- ties thereof, or unless it is done in conformity with a con- tract entered into between the city, city and countJ^ or town and the corporation. [Reiriilatiiif; rates — Term of g:rant.] Contracts so made are valid and binding in law, but do not take from the city, city and county, or town the right to regulate the rates for water, nor must any exclusive right be granted. No contract or grant must be made for a term exceeding fifty years. History: Enacted March 21, 1872, founded upon § 3 Act May 3, 1852, Stats. 1852, p. 171. See Kerr's Cyc. C. C. for 16 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. WATER COMPANIES IN GENERAL. Acquisition of water supply by right of eminent domain. — See 58 L. 240. As appurtenances. — See 15 L. 653. Compelling property owner to pay for water furnished to former occupant of premises. — See 1 L. N. S. 771. Compulsory service. — See 15 L. 322. Consumer's right to maintain suit to compel water company to furnish water at rates stipulated in contract with municipal- ity.— See 1 L. N. S, 956. 366 II Tit. VIII.] WATER COMPANIES. § 548 Effect of limitation of municipal indebtedness upon the acquisition of water supply. — See 59 L. 604. Establishment and regulation of municipal water supply. — See 61 L. 34-119. Exclusiveness of right of water company. — See 9 L. 195. Injunction by municipality against water company for main- taining nusiance. — See 42 L. 821. Laying water mains at expense of abutting property. — See 3 L. N. S. 817. Legislative regulation of rates. — See 33 L. 181. Liability — Of landlord — As to water pipes and water supply on leased premises. — See 23 L. 160. Same — Same — For injuries caused by water brought upon premises. — See 7 A. C. 1015. Same — Same — Tenant for injuries caused by water brought upon premises. — See 10 A. C. 257. Same — Of municipality — For change of street grade, in absence of statute allowing compensation, but under constitu- tional provisions against "damaging" property. — See 10 A. C. 849. Same — Same — ^For failure to organize and regulate water works. — See 11 L. 729. Same — Same — To water company for interfering with pipe in making public improvements. — See 6 A. C. 388; 8 A. C. 1021. Liability — For loss by Are due to the lack of adequate water supply.— See 23 L. 147. Same — In tort for loss to one sustaining no contract relation with it, by its failure to comply with its contract with the municipality. — See 6 L. N. S. 1171. Same — Under contract with municipality for fire loss sus- tained by private citizens. — See 2 A. C. 579; 9 A. C. 1070. Mandamus to compel water company to supply individual applicant with water at reasonable rates. — See 1 L. N. S. 963. Municipal regulation of water pipes in highway. — See 10 A. C. 1098, 1100. Pipe-line as additional servitude upon highway. — See 9 A. C. 1030, 1033; 17 L. 480. Privilege of laying water pipes and mains in streets as a contract within provision against impairing obligation of con- tract. — See 50 L. 145. Property of company as real estate for purposes of taxation. — See 15 L. 299. Right of private consumer to enforce contract of munici- pality with water company. — See 5 A. C. 507. Right of water company as against municipality interfering with pipes in making public improvements. — See 6 A. C. 390. Right to stop supply of water for default of payment. — See 14 L. 669. 367 § 549 CIVIL CODE. [Div.I.Pt.IV. Statutory protection for water used for supplying munici- pality.— See 41 L. 177. Taxation of water company belonging to municipality. — See 1 L. N. S. 766. Validity of statute holding property owner liable for water furnished tenant. — ^See 6 L. N. S. 198. Validity of statute, ordinance or regulation making owner of premises liable for water furnished to tenant or former owner.— See 7 A. C. 1017. Water-rates — As taxes. — See 21 L. 519. Same — As taxes or rates w^itliin meaning of covenant in lease. —See 8 A. C. 111. Same — Grant of franchise upon condition as to price at which water shall be supplied not exceeding a specific rate, valid. — See 5 A. C. 504; 8 A. C. 1130. What are dwellings within the meaning of the water com- pany's obligation to supply water at specified rates for dwelling. —See 11 L. N. S. 613. What may be covered by contract of water supply. — See 15 L. 268. §549. MUST FIKMSH WATER FOR FA3IIL\ USE UPON DEMAND. RULES 3IAY BE PRESCRIBED. All corpora- tions 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 with- out 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 board of supervisors, or the proper city or town authorities, may prescribe proper rules relating to the delivery of water, not inconsistent with the laws of the state. History: Enacted March 21, 1872, founded upon § 4 Act April 22, 1858, Stats. 1858, p. 219; amended March 30, 1874, Code Amdts. 1873-4, p. 216; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 375, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 580. See Kerr's Cyc. C. C. for 117 pars, annotation. 52 C. 13-2, 134 (cited in discussion), 141 (construed and applied); 152 C. 579, 588, 93 P. 490, 491 (persons to whose use water is appropriated or dedicated are vested with a right to have the supply continued). 368 I Tit VITI.] CONSTRUCTION OF CANAL. §§550,551 As to assumption of public duty by water company, see 63 A. S. 844. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to right of irrigation company to refuse to supply and shut off water, see Kerr's Cyc. C. C. § 552 and note. As to right of water company to enforce rules, see 63 A. S. 844. § 550. RIGHT TO USE STREETS, WAYS, ALLEYS, AND ROADS (repealed). History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 375, held unconstitutional, see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 580. See Kerr's Cyc. C. C. for 12 pars, annotation. 152 C. 579, 588, 93 P. 490, 491 (persons to whose use water is appropriated or dedicated are vested with a right to have the supply continued). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §55L CONSTRUCTION OF CANAL, ETC. CONSTRUC- TION AND REPAIR OF BRIDGES. SUPERVISORS MAY CONSTRUCT BRIDGES AND RECOVER THEREFOR. No canal, flume, or other appliance for the conducting of water must be so laid, constructed, or maintained as to obstruct any public highway; and every person or corporation owning, maintaining, operating, or using any such canal, flume, or appliance, crossing or running along any public highway, must construct, maintain, and keep in repair such bridges across the same as may be necessary to the safe and conven- ient use of such highway by the public; and on failure so to do, the board of supervisors of the county, after seven days' notice in writing to said person or corporation, may construct or repair such bridge or bridges, and recover of such person or corporation the amount of the expenditure made in so doing. , History: Enacted March 21, 1872, founded upon § 4 Act May 14, 1862, Stats. 1862, p. 541; amended March 21, 1905, Stats, and Amdts. 1905, pp. 580-581. 369 § 552 CIVIL CODE. [Div.I.Pt.IV. See Kerr's Cyc. C. C. for 10 pars, annotation. 68 C. 359, 360, 9 P. 309 (has not been repealed by § 2737 Pol. C); 98 C. 179, 183, 32 P. 943 (cited in discussion); 152 C. 579, 588, 93 P. 490, 491 (persons to whose use water is appro- priated or dedicated are vested with a right to have the supply continued). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §552. KK^HT OF rURCHASERS TO USE WATER FOR IRRIGATING. 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 sold, at such rates and terms as may be established by said corporation in pursuance of law. [Person funiisbin^ water entitled to continuance, when.] And whenever any person who is cultivating land on the line and within the flow of any ditch owned by such corpora- tion, 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 pur- chased their land of the corporation. History: Enacted April 3, 1876, Code Amdts. 1875-6, p. 77. In effect April 3, 1876. See Kerr's Cyc. C. C. for 29 pars, annotation. 56 C. 431, 440, 441 (construed and applied); 90 C. 27a, 286, 27 P. 216, 219 (construed and applied with §801); 112 C. 426, 434, 435, 436, 44 P. 720 (construed and applied); 129 C. 437, 448, 62 P. 87 (construed); 130 C. 309, 313, 62 P. 562, 1058 (cited as to duty of irrigation company to supply water to previous cus- tomers); 2 C. A. 404, 413, 84 P. 342 (what conditions must exist before companies can be compelled to supply water); 152 C. 579, 588, 93 P. 490, 491 (persons to whose use water is appropriated or dedicated are vested with a right to have the supply con- tinued); 152 C. 596, 597, 93 P. 498 (right to receive water is appurtenant to land when); 86 F. 975, 976 (no land is appur- tenant to water rights, when); 97 F. 394, 396, 398 (applied where appellee had acquired a public use to water necessary to irrigate his lands). As to contract as to rates, see Kerr's Cyc. C. C. § 552 note pars. 19-22. 370 I Tit. VIII.] PURCHASE AND USE OF WATER. | 552 As to duty of company to furnish water for irrigation, see 81 A. S. 488, 492. As to entire diversion for irrigation purposes, see 98 A. D. 543. As to many miscellaneous inatters as to corporations gen- erally, see note § 283, ante. As to irrigation, see 17 Encyc. L. 485. As to liability of company for failure to supply, see 81 A. S. 488-492. As to mandamus to compel furnishing of water for irrigation, see 81 A. S. 488. As to necessity of written contract, see Kerr's Cyc. C. C. § 552, note pars. 13, 14. As to right of riparian proprietor to divert for irrigation purposes, see 98 A. D. 543. As to right to contract as to rates, see Kerr's Cyc. C. C. § 552, note pars. 19-22. Parties entitled to use, see Kerr's Cyc. C. C. § 552, note par. 16 this note. Purchaser. — .See Kerr's Cyc. C. C. § 552, note pars. 22, 25 this note. As to what is reasonable use for irrigation purposes, see 98 A. D. 543. 371 §§ 557, 558 CIVIL CODE. [Div.I.Pt.IV. TITLE IX. HOMESTEAD CORPORATIONS. § 557. Time of corporate existence. § 558. By-laws must specify time for and amount of payment of instalments, and penalty for failure to pay. By- laws to be furnislied to any member on demand. § 559. Advertisement 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 exceeding two hundred thousand dollars. § 563. When corporation is terminated, and how. § 564. Payment of premiums. § 565. Annual report to be published. § 566. Publication in certain cases. § 557. TIME OF t OKPORATE EXISTENCE. Corporations organized for the purpose of acquiring lands in large tracts, paying off encumbrances thereon, improving and subdividing them into homestead lots or parcels, and distributing 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. History: Enacted March 21, 1872, founded upon §§ 1, 3, Act May 20, 1861, Stats. 1861, p. 567; § 1 Act March 30, 1868, Stats. 1867-8, p. 539. §558. BY-LAWS MUST SPECIFY TIME FOR AND AMOUNT OF PAYMENT OF INSTALMENTS, AND PENALTY FOR FAILURE TO PAY. BY-LAWS TO BE FURNISHED TO ANY MEMBER ON DEMAND. Such corporations must specify in their by-laws the time when the instalments of the capital stock are payable, the amount thereof, and the fines, penalties, or forfeitures incurred in case of default. A 372 Tit. IX.] DELINQUENT, ETC., SHARES. §§ 559^ 56O printed copy of the articles of incorporation and by-laws must be furnished to any shareholder on demand. History: Enacted March 21, 1872. §559. ADVERTISEMENT AND SALE OF DELINQUENT AND FORFEITED SHARES. Whenever any shares of stock are declared forfeited by resolution of the board of directors, the directors may advertise the same for sale, giving 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 newspaper of general circulation in the city, town, or county where the principal place of business of such corpo- ration is located. Such sale must be made at auction, under the direction of the secretary of the company. The corpora- tion may be a bidder, and the shares must be disposed of to the highest bidder for cash. No defect, informality, or irreg- ularity in the proceedings respecting the sale invalidates it, if notice is given as herein provided. After the sale is made the secretary must, on receipt of the purchase money, trans- fer to the purchaser the shares sold, and after deducting from the proceeds of such sale all instalments then due, and all expenses and charges of sale, must hold the residue subject to the order of the delinquent subscriber. History: Enacted March 21, 1872, founded upon § 4 Act May 20, 1861, Stats. 18fil, p. 268, as amended April 4, 1864, Stats. 1863-4, p. 492, as amended by § 2 Act March 30, 1868, Stats. 1867-8, p. 540. §560. MAY BORROW AND LOAN FUNDS, HOW, AND FOR WHAT TIME. Homestead corporations may borrow money for the purposes of the corporation, not exceeding at any one time one-fourth of the aggregate amount of the shares or parts of shares actually 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 distrib- uted, they may borrow on the security of their shares on the land thus purchased, or that owned by the corporation at the 373 §§ 561, 562 CIVIL CODE. [Div.I.Pt.IV. 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 must be made to the corpora- tion for a term extending beyond that of its existence. History: Enacted March 21, 1872, founded upon § 5 Act May 20, 1861, Stats. 1861, p. 569, as amended Act March 29, 1870, Stats. 1869-70, p. 474. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §561. MI\<)1{ nilLDKEX, WAKDS, A>D MARRIED >y()ME>' MAY ()»■>■ STOCK. Such shares of stock in home- stead cor])orations as may be acquired by children, the cost of which, and the deposits and assessments on which are paid from the personal earnings of the children, or with gifts from persons other than their male parents, may be taken and held for them by their parents or guardians. Married woiMon may hold such shares as they acquire with their per- sonal earninjjs, or those of their children, voluntarily bestowed therefor, or from property bequeathed or given to them by persons other than their husbands. Hi.«itory: Enacted March 21, 1872, founded upon § 6 Act May 20, 1861, Stats. 1861, p. 567. §562. FORFEITIRE FOR SPECILATING I> OR OWN- ING LANDS EXCEEDING! TWO HUNDRED THOUSAND DOLLARS. Homestead corporations must not purchase and sell, or otherwise acquire and dispose of real property, or any interest therein, or any personal property, for the sole pur- pose of speculation or profit. Nor 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. [Penalty for violation.] For any violation of the provis- ions of this section, corporations forfeit their corporate rights 374 I rpj^jX] TERMINATION— PREMIUMS. §§563,564 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. History: Enacted March 21, 1872. §563. >VHEN COKPORATIOX IS TERMINATED, AND HOW. Except for the purpose of winding up and settling its affairs, every homestead corporation must terminate at the expiration of the time fixed for its existence in the arti- cles of incorporation, or when dissolved as provided in this part. No dividend of funds must be made on termination of its corporate existence, until its debts and liabilities are paid; and upon the final settlement of the affairs of the corpora-, tion, or upon the termination of its corporate existence, the directors, in such manner as they may determine, must divide its property among- its shareholders in proportion to their respective interests, or, upon the application of a majority in interest of the stockholders, must sell and dispose of any or all of the real estate of the corporation upon such terms as may be most conducive to the interests of all the stock- holders, and must convey the same to the purchaser, and dis- tribute the proceeds among the shareholders, or may at any time when best for the interests of all the shareholders, cause the lands of the corporation to be subdivided into lots and distributed, by sale for premiums, at auction or other- wise, among the shareholders. HUtorr: Enacted March 21, 1872, founded upon § 7 Act May 20, 1861. Stats. 1861, p. 569; § 1 Act March 29, 1870, Stats. 1869--0. p. 474. § 564. PAYMENT OF PREMIUMS. 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 immediately offer the same for sale again. If made payable at a future day. and any shareholder fails to pay 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 375 §§ 565, 566 CIVIL CODE. [Div.T,Pt.IV. in the by-laws for the sale of shares on account of delinquent instalments and premiums. History: Enacted March 21, 1872, founded upon § 1 Act March 29, 1870, Stats. 1869-70, p. 474. §565. ANNUAL KEPOKT TO BE PUBLISHED. The act- ual financial condition of all homestead corporations must, by the directors thereof, be published annually in the [a] newspaper published at the principal place of business of the corporation, for four weeks, if published in a weekly, 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. History: Enacted March 21, 1872, founded upon § 8 Act May 20, 1861, Stats. 1861. p. 569. §566. PUBLICATION IN CERTAIN CASES. In any case in which a publication is required, and no newspaper is pub- lished at the principal place of business, the publication may be made in a paper published in an adjoining county. History: Eaacted March 21, 1872. 376 d Tit. X.] SAVINGS AND LOAN. § 571 TITLE X. SAVINGS AND LOAN CORPORATIONS. § 571. May loan money, on what terms, how, and to whom, and how long. § 572. Capital stock, and rights and privileges thereof. § 573. No dividends, except from surplus profits. To contract no liability, except for deposits. § 574. Property which may be owned by corporation. What may not hold, etc. § 575. Married women and minors may own stock in their own right. § 576. May issue transferable certificates of deposit. Special certificates. § 577. To provide a reserve fiind for the payment of losses. § 578. Prohibition on director and officer, and what vacates office. • § 579. Definition of phrase "create debts." § 580. Banks, amount of capital stock required [repealed]. § 581. Restrictions on savings banks. § 582. True names of persons engaged in banking business must be shown. § 583. Dividends. Surplus funds. § 583a. Capital actually paid up must be published. § 583b. Biennial report to bank commissioners of unclaimed deposits. § 571. MAT LOAN MONET, ON WHAT TERMS, HOW, AND TO WHOM, AND HOW LONG. Corporations organized for the purpose of accumulating and loaning the funds of their members, stockholders, 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 without interest. No such corporation must loan money, except on adequate security on real or personal prop- erty, and such loan must not be for a longer period than ten years. History: Enacted March 21, 1872, founded upon §§ 4, 5 Act April 11, 1862, Stats. 1862, p. 199, as amended Act April 12, 1864, Stats. 1863-4, p. 158; amended March 15, 1901, Stats, and Amdts. 1900-1, p. 295. In force March 15, 1901. 377 / §§572,573 CIVIL CODE. [Div.I,Pt.IV. See Kerr's Cyc. C. C. for 14 pars, annotation. 64 C. 117, 123, 28 P. 110, 112 (referred to); 97 C. 214, 222, 32 P. 3 (section expressly authorizes what); 126 C. 413, 415, 58 P. 914 (distinction between "loan" and "invest"); 136 C. 432, 442, 89 A. S. 153, 64 P. 692, 69 P. 77 (loans must be on adequate security). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 572. CAPITAL STOCK, AND RIGHTS AND PRIVILEGES THEREOF. When savings and loan corporations have a capital stock specified in their articles of incorporation, cer- tificates of the ownership of shares may be issued; and the rights and privileges 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 jn the by-laws. History: Enacted March 21, 1872, founded upon § 17 Act April 11, 1862, Stats. 1862, p. 203. See Kerr's Cyc. C. C. for 6 pars, annotation. 64 C. 117, 123, 28 P. 110, 112 (referred to); 109 C. 396, 401, 42 P. 149 (construed and applied); 117 C. 157, 160, 162, 59 A. S. 162 48 P. 1090, 37 L. 619 (referred to in discussion). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 573. NO DIVIDENDS, EXCEPT FROM SURPLUS PROF- ITS. TO CONTRACT NO LIABILITY, EXCEPT FOR DEPOS- ITS. The directors of savings and loan corporations may, at such times and in such manner as the by-laws prescribe, declare and pay dividends of so much of the profits of the corporation, 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 corporation for any purpose whatever, except for depos- its. The capital stock and the assets of the corporation are a security to depositors and stockholders, depositors having the priority of security over the stockholders, but the by-laws 378 Tit. X.] PROPERTY MAY OWN AND HOLD. § 574 may provide that the same security shall extend to deposits made by stockholders. History: Enacted March 21, 1872, founded upon § 10, Act April 11, 1862, Stats. 1862, p. 201, as amended Act March 4, 1870, Stats. 1869-70, p. 130. See Kerr's Cyc. C. C. for 9 pars, annotation. 64 C. 117, 123, 28 P. 110, 112 (referred to with other sections); 109 C. 396, 401, 42 P. 149 (construed and applied); 117 C. 157, 160, 59 A. S. 162, 48 P. 1090, 37 L. 619 (referred to with other sections); 119 C. 334, 343, 51 P. 317 (construed). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 574. PROPERTY >VHICH MAY BE 0>Y>ED BY CORPO- RATION. WHAT MAY NOT HOLD, ETC. Savings and loan corporations may purchase, hold and convey real and personal property as follows: 1. The lot and building iu which the business of the corpo- ration is carried on, the cost of which must not exceed one' hundred thousand dollars; except, on a vote of two-thirds of the stockholders the corporation may increase the sum to an amount not exceeding two hundred and fifty thousand dol- lars ; 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 regular 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 satisfaction 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 subdivision three of this section must be sold by the corporation within ten years after the title thereto is vested in it by purchase or otherwise; 5. No such corporation must purchase, oivn, or sell per- sonal property, except such as may be requisite for its imme- diate accommodation for the convenient transaction of its business, mortgages on real estate, bonds, securities or evi- 379 § 575 CIVIL CODE. [Div.I.Pt.IV. dences of indebtedness, public or private, gold and silver bullion and United States mint certificates of ascertained value and evidences of debt issued by the United States; 6. No such corporation must purchase, hold or convey bonds, securities or evidences of indebtedness, public or pri- vate, except bonds of the United States, of the state of Cali- fornia, and of the counties, cities, or cities and counties, or towns, or school districts of the state of California, or bonds of railroad or street-railroad corporations owning property and having their principal place of business in the state of California, unless such corporation has a capital stock or reserve fund paid in of not less than one hundred thousand dollars. History: Enacted March 21, 1872, founded upon § 13 Act April n, 1862, Stats. 1862, p. 202, as amended by Act March 12, 1864, Stats. 1863-4, p. 158, and by Act March 31, 1866, Stats. 1865-6, p. 626; amended March 30, 1874, Code Amdts. 1873-4, p. .273; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 375, held unconstitutional, see history, § 4 ante; amended March 23, 1901, Stats, and Amdts. 1900-1, p. 659. In force March 23, 1901. See Kerr's Cyc. C. C. for 5 pars, annotation. 64 C. 117, 123, 28 P. 110, 112 (referred to with other sections); 109 C. 396, 401, 42 P. 149 (referred to with other sections); 117 C. 157, 160, 59 A. S. 162, 48 P. 1090, 37 L. 619 (referred to with other sections); 126 C. 413, 416, 417, 58 P. 914 (subds. 4, 5 con- strued and applied); 133 C. 611, 613, 85 A. S. 225, 65 P. 1078 (subds. 3, 4 construed); 136 C. 432, 442, 89 A. S. 153, 64 P. 692, 69 P. 77 (subd. 6 construed with §571); 149 C. 122, 124, 84 P. 835 (subd. 4 of section applied); 3 C. A. 706, 710, 86 P. 991 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §575. MAERIED WOMEN AND MINORS MAY OWN STOCK IN THEIR OWN RIGHT. Married women and min- ors may, in their own right, make and draw deposits and draw dividends, and give valid receipts therefor. History: Enacted March 21, 1872, founded upon §§ 14, 15 Act April 11, 1862, Stats. 1862, p. 202, as amended Act March 12, 1864, Stats. 1863-4, p. 160, and amendatory Act March 4, 1870, Stats. 1869-70, p. 132. 380 Tit. X.] CERTIFICATES — RESERVE. §§576,577 See Kerr's Cyc. C. C. for 2 pars, annotation. 64 C. 117, 123, 28 P. 110, 112 (referred to with other sections); 117 C. 157, 16.0, 59 A. S. 162, 48 P. 1090, 37 L. 619 (referred to with other sections); 134 C. 403, 405, 66 P. 569 (construed and applied). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Separate property of wife in deposits. — See Kerr's Cyc. C. C. § 164 and note pars. 18-20. § 576. MAY ISSUE TRA^fSFERABLE CERTIFICATES OF DEPOSIT. SPECIAL CERTIFICATES. Savings and loan corporations may issue general certificates of deposit, which are transferable, as in other cases, by indorsement and deliv- ery; may issue, when requested by the depositor, special certificates, acknowledging the deposit 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 books of the corporation; payment thereafter made by the corporation to the depositor named in such certificate, or to his assignee named upon the books 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, discharges the corporation from all further liability on account of the moneys so paid. History: Enacted March 21, 1872, founded upon § 1 Act March 28, 1868, Stats. 1867-8, p. 459. See Kerr's Cyc. C. C. for 3 pars, annotation. 64 C. 117, 123, 28 P. 110, 112 (referred to with other sections); 109 C. 396, 403, 42 P. 149 (construed and applied); 117 C. 157, 160, 59 A. S. 162, 48 P. 1090, 37 L. 619 (referred to with other sec- tions); 119 C. 334, 341, 51 P. 317 (construed and applied); 136 C. 510, 512, 69 P. 257 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §577. TO PROVIDE RESERVE FUND FOR THE PAT- MEKT OF LOSSES. Savings and loau corporations may pre- scribe by their by-laws the time and conditions on which repayment is to be made to depositors; but whenever there 381 § 578 CIVIL CODE. [Div.I.Pt.IV. is any call by depositors for repayment of a greater amount than the corporation may have disposable for that purpose, the directors or officers thereof must not make any new loans or investments of the funds of the depositors, or of the earnings thereof, until such excess of call has ceased. [Corporations without capital — Keserve fund.] The direc- tors of any such corporation having no capital stock must retain, on each dividend day, at least five per cent of the net profits of the corporation, to constitute a reserve 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. [Excess of reserve fund — Disposition on dissolution.] 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 corporation, of the reserve fund, or of the remainder thereof, after payment of losses. History: Enacted March 21, 1872, founded upon § 11 Act April 11, 1862, Stats. 1862, p. 201; Acts March 31 and April 4, 1870, Stats. 1869-70, pp. 523, 822. See Kerr's Cyc. C. C. for 2 pars, annotation. 57 C. 594, 602 (applied); 64 C. 117, 123, 28 P. 110 (referred to with other sections); 109 C. 396, 401, 42 P. 149 (referred to with other sections). As to many miscellaneous matters as to corporations gen- erally,- see note § 283, ante. Deposits and net profits — Trust funds. — See Kerr's Cyc. C. C. § 573 and note. § 578. PROHIBITION ON DIRECTOR AND OFFICER, AND WHAT VACATES OFFICE. No director or officer of any savings and loan corporation must, directly or indirectly, for himself or as the partner or agent of others, borrow 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 382 I ' Tit. X.] "CREATE DEBTS," DEFINITION OF. §§ 579^ 58O who acts in contravention of the provisions of this section immediately thereupon becomes vacant. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 64 C. 117, 123, 28 P. 110, 112 (referred to with other sections); 104 C. 473, 476, 480, 38 P. 102 (construed and applied); 117 C. 157, 160, 59 A. S. 162, 48 P. 1090, 37 L. 619 (referred to with other sections); 124 C. 282, 291. 71 A. S. 58, 57 P. 84, 85 (construed and applied); 130 C. 245, 257, 62 P. 466, 467, 600 (referred to with other sections); 136 C. 432, 442, 89 A. S. 153, 64 P. 692, 69 P. 77 (applied). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §579. DEFINITION OF PHRASE "CREATE DEBTS." Receiving deposits, issuing certificates of deposit, checlts, and bills of exchange and the like, in the transaction of the busi- ness 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. HLstory: Enacted March 21, 1872. 57 C. 594, 602 (referred to with other sections); 64 C. 117, 123, 28 P. 110, 112 (referred to with other sections); 117 C. 157, 160, 59 A. S. 162, 48 P. 1090, 37 L. 619 (referred to with other sections); 17 Nev. 146, 30 P. 703, 705 (there is no such statute in Nevada. In that state the relation of debtor and creditor does exist between general depositors and banks). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 580. BANKS, AMOUNT OF CAPITAL STOCK REQUIRED (repealed). History: Original section enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 376, held unconsti- tutional, see history, § 4 ante; an entirely different provision with sectional number enacted March 5, 1903, Stats, and Amdts. 1903, p. 87; re-enacted almost verbatim March 20, 1905, Stats, and Amdts. 1905, p. 507; repealed March 18, 1907, Stats, and Amdts. 1907, p. 576, Kerr's Stats, and Amdts. 1906-7, p. 415. 383 §§ 581-583 CIVIL CODE. [Div.I.Pt.IV. § 581. RESTRICTIONS ON SAVINGS BANKS. No savings bank shall lend to exceed sixty per cent of the market value of any piece of real estate to be taken as security, except for the purpose of facilitating the sale of property owned by the corporation. And it shall be unlawful for any sav- ings and loan society, or savings bank, to purchase, invest, or loan its capital, or the money of its depositors, or any part of either, in mining shares or stocks. Any president or managing officer who knowingly consents to a violation of the above provision shall be deemed guilty of a felony. History: Enacted Marcli 21, 1903, Stats, and Amdts. 1903, p. 352. In force March 21, 1903. § 582. TRUE NAMES OF PERSONS ENGAGED IN BANK- ING BUSINESS MUST BE SHOWN. Every person or num- ber of persons not being incorporated, engaged in the busi- ness of banking, or publicly receiving money on deposit must conduct such business under a name which shows the true names of all persons engaged therein, unless such person or persons have complied with the provisions of article seven of chapter two of title ten of part four of division third of said Civil Code. [Penalty for violatioii.] Every person violating any of the provisions of this section is guilty of a misdemeanor, and is punishable by imprisonment in the county jail for not less than ninety days nor more than six months, or by fine of not less than one hundred dollars nor more than five hundred dollars, or by both such fine and imprisonment. HLstory: Enacted March 21, 1903, Stats, and Amdts. 1903, pp. 352-353. In force March 21, 1903. § 583. DIVIDENDS. SURPLUS FUNDS. The directors of any savings bank, bank, or banking corporation having a capital stock, may semi-annually declare a dividend of so much of the net profits of the stockholders as they shall judge expedient; but every such corporation shall, before the declaration of such dividend, carry at least one-tenth (1-10) part of the net profits of the stockholders for the preceding 384 Tit. X.] PAID IN CAPITAL— REPORT. §§ 583a, 583b half year to its surplus or reserve fund until the same shall amount to twenty-five per centum of its paid-up capital stock. But the whole or any part of such surplus or reserve fund, if held as the exclusive property of stockholders, may at any time be converted into paid-up capital stock, in which event such surplus or reserve fund shall be restored in man- ner as above provided until it amounts to twenty-five per centum of the aggregate paid-up capital stock. A larger surplus or reserve fund may be created, and nothing herein contained shall be construed as prohibitory thereof. History: Enacted March 21, 1903, Stats, and Amdts. 1903, p. 353. In effect March 21, 1903. 134 C. 603, 605, 65 P. 321, 66 P. 860 (miscited for § 853). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §583a. CAPITAL ACTUALLY PAID UP MUST BE PUB- LISHED. No banker, nor officer of any bank or corporation doing a banking business, shall advertise in any manner, or publish any statement of the capital stock authorized or subscribed, unless he advertise and publish in connection therewith, the amount of capital actually paid up. Any officer, or the officers of any bank or corporation doing a banking business, advertising in any manner, or publishing, a state- ment of the capital stock of such bank or banking corpora- tion, authorized or subscribed, without the statement in con- nection therewith of the stock actually paid up, shall be guilty of a misdemeanor. History: Enacted March 21, 1903, Stats, and Amdts. 1903, p. 353. In effect March 21, 1903. § 5S3b. BIENNIAL REPORT TO BANK COMMISSIONERS OF UNCLAIMED DEPOSITS. The president of every savings bank, savings and loan society, and every other bank, deposi- tory, society, or institution in which deposits of money are made, whether any interest or dividend is paid, or agreed to be paid, thereon or not, must, within fifteen days after the first day of January of every odd-numbered year, return Kerr's C. C. — 13 385 § 583b CIVIL CODE. [Div.I,Pt.IV. to the board of bank commissioners a sworn statement show- ing the amount placed to his credit, the last known place of residence or post-office address, and the fact of death, if known to such president, of every depositor who has not made a deposit therein or withdrawn therefrom any part of his deposit, or any part of the interest or dividends thereon, for a period of more than ten years next preceding. Such president must give notice of these deposits in one or more newspapers published in or nearest the town, city, or city and county where such bank, society, or other insti- tution is situated or has its principal place of business, at least once a week for four successive weeks, the cost of such publication to be paid pro rata out of such unclaimed deposits. This section does not apply to any deposit made by or in the name of a person known to the president to be living, or which, with the accumulation thereon is less than fifty dollars. The board of bank commissioners must incorporate in their subsequent report each return made to them as provided in this section. Any president of any of the institutions mentioned in this section who neglects or refuses to make the sworn statement required thereby is guilty of a misdemeanor. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 580-581. The act contains two repealing sections as follows: §2. The act entitled "An act to compel savings hanks to pub- lish a sworn statement of all unclaimed deposits," approved March 23, 1893, is hereby repealed. § 3. The act entitled "An act to compel all depositories of money and commercial banks to publish a sworn statement of all unclaimed deposits," ap- proved February 25, 1897, is hereby repealed. See Kerr's Cyc. C. C. for 3 pars, annotation. Bank Commissioners. — See Hen. G. L. p. 65, and note p. 72. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 386 Tit. XI.]- MINING COMPANIES— AGENCIES. § 586 TITLE XI. MINING CORPORATIONS. [The original Title XI, embracing' §§ 584-587, repealed March 21, 1905, and a new Title XI substituted therefor, embracing §§ 586-590, Stats, and Amdts. 1905, pp. 584-587, and is substantially the codification of Act 1880 (Stats. 1880, p. 134), as amended by Act 1897 (Stats, and Amdts. 1897, p. 38), and amendments pro- posed by Code Commission, Act March 16, 1901 (Stats, and Amdts. 1900-1, p. 377), held unconstitutional, see history, § 4 ante.] § 586. Transfer agencies. [May establish in other states.] § 587. Stock issued at transfer agencies. [Surrender of cer-- tificate.] § 587a. Consolidation of mining corporations. [Written consent of stockholders.] § 588. Books and balance-sheet to be kept by secretary. Stock- holders' right to inspect. § 589. Right of stockholder to visit mine with expert. [Duty of superintendent.] § 590. Liability of president and directors. [Refusal to per- mit examination; damages.] §586. TRANSFER AGENCIES. [MAY ESTABLISH IN OTHER STATES.] Any corporation organized in tliis state for tlie 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 witli the provi- sions of its by-laws, is valid and binding as fully and effectually for all purposes as if made upon the books of such corporation at its principal office within this state. The agencies must be governed by the by-laws and the directors of the corporation. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 584-585; see introductory note to this title. See Kerr's Cyc. C. C. for 2 pars, annotation. 142 C. 391, 392, 75 P. 1086 (referred to with other sections). 387 §§ 587, 587a CIVIL CODE. [Div.I.Pt.IV. As to locating mining claims, tunnel riglits, mill sites, etc., see post §§ 1426-1426S. As to many niiscellaneous matters of corporations generally, see note § 283, ante. § 587. STOCK ISSUED AT TRANSFER AGENCIES. [SUR- RENDER OF CERTIFICATE.] All stock of any such corpora- tion, Issued at a transfer agency, must be signed by the president and secretary of the corporation, and countersigned at the time of its issue by the agent having charge of the transfer agency. No stock must be issued at a transfer agency unless the certificate of stock, in lieu of which the same is issued, is at the time surrendered for cancelation. HLstory: Enacted March 21, 1905, Stats, and Anulls. lltos, p. 585; see introductory note to this title. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Consolidation of railroad corporations. — See Kerr's Cyc. C. C. § 473 and note. §587a. CONSOLIDATION OF MINING CORPORATIONS. [WRITTEN CONSENT OF STOCKHOLDERS.] It is lawful for two or more corporations formed, or that may hereafter be formed, under the laws of this state, for mining pur- poses, which own or possess mining claims or lands adjoin- ing each other, or lying in the same vicinity, to consolidate their capital stock, debts, property, assets, and franchises, in such manner and upon such terms as may be agreed upon by the respective boards of directors or trustees of such corporations so desiring to consolidate their interests; but No such consolidation must take place without the written consent of the stockholders representing two-thirds of the capital stock of each corporation, and no such consolidation can, in any way, relieve such corporations, or the stock- holders thereof, from any and all just liabilities; and in case of such consolidation. Due notice of the same must be given, by advertising, for 388 Tit. XL] BOOKS AND BALANCE-SHEETS. § 588 one month, in at least one newspaper in the county where the said mining property is situated, if there is one pub- lished therein, and also in one newspaper published in the county where the principal place of business of any of said corporation is. [Certificate of consolidation — Filed, where.] And when the consolidation is completed, a certificate thereof, containing the manner and terms of such consolidation, must be filed in the office of the county clerk of the county in which the original certificate of incorporation of each of said corpora- tions is filed, and a copy thereof must be filed in the office of the secretary of state. [Same] — To be signed by boards — Calling meeting of stockholders — Notice.] Such certificate must be signed by a majority of each board of trustees or directors of the origi- nal corporations, and it is their duty to call, within thirty days after the filing of such certificate, a meeting of the stockholders of all of said corporations so consolidated, to elect a board of trustees or directors for the consolidated corporation, for the year thence next ensuing; and to cause notice of the time and place fixed for such meeting to be mailed to each stockholder of each of such corporations at his last known place of residence or business at least ten days before the time fixed for such meeting. The said cer- tificate must also contain all the requirements prescribed by section two hundred and ninety. Bistory: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 585; see introductory note to this title. §588. BOOKS AND BALANCE-SHEET TO BE KEPT BY SECRETARY. STOCKHOLDERS' RIGHT TO INSPECT. It is the duty of the secretary of every corporation formed for the purpose of mining, or conducting mining in California, whether such corporation be formed and organized under the laws of the state of California or of any other state, territory, or foreign country, to keep at some place within the state of California an office and in such office to keep 889 § 588 CIVIL CODE. [Div.I,Pt.IV. a complete set of books showing all receipts and expendi- tures of such corporation, the sources of such receipts, and the objects of such expenditures, and also all transfers of stock. All books and papers must, at all times during busi- ness hours, be open to the inspection of any stockholder. He is ^titled to be accompanied by an expert, and to make copies or extracts from any such books or papers. [Stockholder may examine mining property.] He may, at reasonable hours, examine such mining property, accom- panied by an expert, take samples, and make such other examination as he may deem necessary. [Xontlily ))alance-slieet — Verified by oath, of whom.] It is the duty of the directors, on the second Monday of each and every month, to cause to be made an itemized account or balance-sheet for the previous month, embracing a full and complete statement of all disbursements and receipts, show- ing from what sources such receipts were derived, and to whom and for what object or purposes such disbursements or payments were made; also all indebtedness or liabilities incurred or existing at the time, and for what the same were incurred, and the balance of money, if any, on hand. Such account or balance-sheet must be verified under oath by the president and secretary, and posted in some conspicuous place in the office of the company. [Superintendent to file monthly account; what must show.] It is the duty of the superintendent, on the first Monday of each month, to file with the secretary an itemized account, verified under oath, showing all receipts and disbursements made by him for the previous month, and for what said dis- bursements were made. Such account must also contain a verified statement showing the number of men employed under him, and for what purpose, and the rate of wages paid to each. [Same — Report attached to account — Open to Inspection.] He must attach to such account a full and complete report, under oath, of the work done in said mine, the amount of ore extracted, from what part of mine taken, the amount 390 I Tit. XI.] VISITING MINE— EXPERT. § 589 sent to mill for reduction, its assay value, the amount of bullion received, the amount of bullion shipped to the office of the company or elsewhere, and the amount, if any, retained by the superintendent. It is his duty to forward to the office of the company a full report, under oath, of all discoveries of ores or mineral-bearing quartz made in said mine, whether by boring, drifting, sinking, or otherwise, together with the assay value thereof. All accounts, reports, and correspond- ence from the superintendent must be kept in some conspicu- ous place in the office of said company, open to the inspec- tion of all stockholders. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp.. 585-586; see introductory note to this title. See Kerr's Cyc. C. C. for 15 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 589. RIGHT OF STOCKHOLDER TO VISIT MINE WITH EXPERT. [DUTY OF SUPERIIVTEXDEiVT.] Any stock- holder of a corporation formed under the laws of this state for the purpose of mining, is entitled to visit, accompanied by his expert, and examine the mine or mines owned by such corporation, and every part thereof, at any time he may see fit; and when such stockholder applies to the president of such corporation, he must immediately cause the secretary thereof to issue and deliver to such applicant an order, under the seal of the corporation, directed to the superin- tendent, commanding him to show and exhibit such parts of said mine or mines as the party named in said order may desire to visit and examine. It is the duty of the superiiiteudent, on receiving such order, to furnish such stockholder every facility for making a full and complete inspection of said mine or mines, and of the workings therein, and to accompany said stockholder either in person, or to furnish some person familiar with said mine or mines to accompany him in his visit to and through such mine or mines, and every part thereof. [Failure of superintendent to obey orders— Removal.] If 391 § 590 CIVIL CODE. [Div.I,Pt.IV. the superintendent fails to obey such order, such stockholder is entitled to recover, in any court of competent jurisdiction, against the corporation, a sum of one thousand dollars, and traveling expenses to and from the mine, as liquidated dam- ages, together with costs of suit. In case of such refusal, it is the duty of the directors of the corporation forthwith to remove the officer so refusing, and thereafter he must not be employed directly or indirectly by the corporation, nor must any salary be paid to him. History; Enacted March 21, 1905, pp. 586-587; see introduc- tory note to this title. §590. LIABILITY OF PRESIDENT AND DIRECTORS. [REFUSAL TO PERMIT EXAMINATION; DAMAGES.] In case of the refusal or neglect of the president to cause to be issued by the secretary the order mentioned in section five hundred and eighty-nine, such stockholder is entitled to recover against said president the sum of one thousand dol- lars and costs, as provided in the last section. If the directors fail to have the reports and accounts cur- rent made and posted as provided in section five hundred and eighty-eight, they are liable, either severally or jointly, to an action by any stockholder complaining thereof, and on proof of such refusal or failure, he may recover judgment for actual damages sustained by him, with costs of suit. [Removal of directors.] Each of such defaulting directors is also liable to removal for such neglect. History: Enacted March 21, 1905, p. 587; see introductory note to this title. See Kerr's C5'c. C. C. for 13 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 392 1 Tit. XIa.] CHAMBERS OF COMMERCE, ETC. § 591 TITLE XIa. CORPORATIONS FOR THE FORMATION OF CHAMBERS OF COMMERCE. BOARDS OF TRADE, MECHANICS' INSTI- TUTES, AND OTHER KINDRED ASSOCIATIONS. [This title was added by Act March 21, 1905, Stats, and Amdts. 1905, pp. 587-589; verbatim re-enactment of similarly numbered sections of the Code Commission, Act March 16, 1901 (Stats, and Amdts. 1900-1, pp. 380, 381), held unconstitutional, see history, § 4 ante. This added title is a codification of Act 1866 (Stats. 1865-6, p. 469, as amended by Act 1868 (Stats. 1867-8, p. 15), and Act 1885 (Stats, and Amdts. 1885, p. 76). See Stats, and Amdts. 1900-1, p. 429.] § 591. Formation, organization and powers of. § 592. Capital stock and certificates of. § 592a. Power which may be conferred on the trustees, direc- tors, or the executive committee. § 592b. Power to acquire, sell, possess, and use property. § 592c. The by-laws. [Meeting-s, how called and conducted.] § 592d. Power to levy and collect assessments. § 592e. Pre-existing corporations may become entitled to the benefit of this title. §591. FORArATIO, ORGANIZATION AND POWER OF. Corporations for tlie formation and organization of cliambers of commerce, boards of trade, mechanics' institutes, and other associations formed for the extension and promotion of trade and commerce, or the advancement, protection, and improvement of the mechanic arts, may be formed by twenty or more persons, who must execute' and file articles of incor- poration as prescribed in chapter one of title one of part four of this code. Upon receiving from the secretary of state a certificate of the filing with him of a certified copy of its articles of incorporation, such corporation becomes a body corporate, and by its corporate name has succession for the period limited in its articles, and power: (1) To sue and be sued in any court; (2) to make and use a common seal, and alter it at pleasure; (3) to lease, purchase, hold, sell, mortgage, convey in trust, convey, release from trust or 393 § 592 CIVIL CODE. [Div.I.Pt.IV. mortgage, such real and personal property as hereinafter provided; (4) to elect and appoint such officers, agents, and servants as the business of the corporation may require; and (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 affairs. [Business.] No corporation formed under this title must engage in any mercantile, commercial, or mechanical busi- ness. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 588. See Kerr's Cyc. C. C. for 133 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to arbitration clause and jurisdiction of arljitration com- mittee, see 26 Encyc. L. 805. As to conclusiveness of decisions of tribunals of association or corporations, see 49 L. 353-401. As to remedy of members, see 59 A. S. 198-209. As to right to resort to courts, see 53 A. S. 319, 48 A. S. 316, 18 A. S. 301. As to rules and regulations of exchanges, boards of trade, (•hambers of commerce and commercial associations, see 26 Encyc. L. 803. As to stock and produce exchanges, see 26 Encyc. L. 788. As to validity of constitution, by-laws and proceedings of voluntary associations, see 69 A. D. 670-678. Arbitration clause. — See 26 Encyc. L. 805. §592. CAPITAL STOCK A>D CERTIFICATES OF. Every corporation formed under this title may have a capital stock and issue certificates to represent the shares thereof, if the articles of incorporation contain a statement of the amount of its capital stock and the number of shares into which it is divided. [Rights and privileges of stockholders.] The rights and privileges to be accorded to stockholders are distinct from those to be accorded to members at large of the corpora- tion, and the obligations to be imposed upon stockholders 394 Tit. XIa.] POWERS— BY-LAWS. §§ 592a-592c in the same relation must be fixed and established in the by-laws of the corporation. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 588. § 592a. POWER WHICH 3IAY BE CONFERRED OX THE TRUSTEES, DIRECTORS, OR THE EXECUTIYE COMMIT- TEE. The corporation may confer upon a board of trustees or directors, or upon a body to be styled the executive com- mittee of the corporation, the right to exercise all or any of the corporate powers, if the articles of incorporation state that the right to exercise the corporate powers is to be con- fided to such board of trustees or directors or to such execu-. tive committee, and the number of trustees, directors, or committee, and the names of those selected to take charge of the affairs of the corporation for the first six months. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 588-589. See Kerr's Cyc. C. C. § 591 note pars. 67-71. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §592b. POWER TO ACQUIRE, SELL, AND USE PROP- ERTY. Every corporation formed under this title may lease, purchase, have, hold, use, take possession of, and enjoy in fee simple or otherwise any personal or real property within the state necessary for the uses and purposes of the corpora- tion, and may sell, lease, deed in trust, alien, or dispose of the same at its pleasure. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 589. §592c. THE BY-LAWS. [MEETINGS, HOW CALLED AND CONDUCTED.] The by-laws of any corporation formed under this title without capital stock must prescribe how members of the corporation shall be admitted and how ex- pelled, and how officers, agents, and servants shall be 395 §§ 592d, 592e CIVIL CODE. [Div.I,Pt.IV. appointed. Such provisions in the by-laws have force and effect as between private parties and the corporation. [3Iaiiiicr of calling and conducting meetings.] All corpora- tions formed under the provisions of this title must deter- mine, by their by-laws, the manner of calling and conducting their meetings, the number of members that constitute a quorum, the manner of levying and collecting assessments, the officers of the corporation, the manner of their election or appointment and their tenure of office, and may prescribe suitable penalties for the violation of such by-laws, not exceeding in any case one hundred dollars for any one offense. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 589. See Kerr's Cyc. C. C. § 691 note pars. 80-109. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §592d. POWER TO LEVY AND COLLECT ASSESS- MENTS. Every corporation formed under the provisions of this title has power to levy and collect, from the members thereof, for the purpose of paying the proper and legal expenses of the corporation, assessments in such manner as may be prescribed by its by-laws, but not otherwise. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 589. §592e. PRE-EXISTING CORPORATIONS MAY BECOME ENTITLED TO THE BENEFIT OF THIS TITLE. Every cor- poration, association, or institution formed prior to the enact- ment of this title, for any of the purposes contemplated thereby, may, by a vote of the majority of its members vot- ing at a meeting called for that purpose,- become entitled to the benefit thereof on filing the certificate hereinafter required. Notice of such meeting and of its object mnst be published in a newspaper of general circulation in the county in which 396 I Tit. XIa.] CERTIFICATE — CONTENTS. § 592e the principal place of business of the corporation, associa- tion, or institution is located, for at least two weeks before the day on which the meeting is to be held. [Certificate, execution and contents.] Such certificate must be signed and acknowledged by at least five members of the corporation, association, or institution, must contain a list of the members who desire to become members, and must be filed with the county clerk of such county, and a copy thereof, certified by him, must be filed with the secretary of state. Thereupon such corporation, association, or institu- tion possesses all the powers and privileges conferred by this title. Hi.story: Enacted March 21, 1905, Stats, and Amdts. 1905,. p. 589. 397 § 593 CIVIL CODE. [Div.I,Pt.IV. TITLE XII. RELIGIOUS, SOCIAL, AND BENEVOLENT CORPORATIONS. § 593. [Corporations not for profit.] Number of directors. § 594. Additional facts articles of incorporation to set out. § 595. -"Amount of real estate to be owned by such corporations. § 596. How much land friendly, etc., societies may hold. § 597. Directors to make verified report annually. § 598. Sale, mortgage, and bond of real property. § 599. What by-laws, etc., may provide for. § 600. Members admitted after incorporation. § 601. No member to transfer membership, etc. § 602. Religious society may become a corporation sole. § 602a. Corporation sole, continuous existence. § 603. Religious society may elect directors and incorporate. Procedure. § 604. Same. § 605. Consolidation of corporations. § 593. [COKPO RATIONS NOT FOR PROFIT.] NUMBER OF DIRECTORS. Any number of persons associated together 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 the association, elect directors, the number thereof to be not less than three nor more than twenty-one, and may incorporate themselves as provided in this title. History: Enacted March 21, 1872, founded upon Stats. 1869- 70, p. 46, and p. 420, § 1; amended April 3, 1880, Code Amdts. 1880 (C. C. pt.), p. 6; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 381, held unconstitutional, see history, § 4 ante; amendment re-enacted March 18, 1905, Stats, and Amdts. 1905, p. 113; amended March 18, 1907, Stats. and Amdts. 1907, p. 579. Kerr's Stats, and Amdts. 1906-7, p. 415. See Kerr's Cyc. C. C. for 5 pars, annotation. 114 C. 295, 300 (referred to with other sections, 301 (construed with other sections), 46 P. 2; 119 C. 477, 483 (applied, but er- roneously cited as §595), 51 P. 841, 843 (same error); 121 C. 317, 321, 53 P. 901 (referred to); 128 C. 257, 260, 262, 60 P. 865 (construed). 398 Tit. XII.] ADDITIONAL FACTS— REAL ESTATE. §§ 594, 595 As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Expulsion and suspension of members. — See Kerr's Cyc. C. C. §■ 599 and note. Insurance laws — Exemption of fraternal societies from. — See Kerr's Cyc. C. C. § 451 and note. Jurisdiction of courts over. — See Kerr's Cyc. C. C. § 599 and note. § 594. ADDITIONAL FA( TS ARTICLES OF INCORPORA- TIOIV TO SET OUT. In addition to the requirements of sec- tion two hundred and ninety, the articles of incorporation of any association mentioned in the preceding section must set forth the holding of the election for directors in accordance with a resolution adopted at the last prior regular meeting, the time and place where the same was held, and that notice of such meeting was given to the members of said associa- tion; that a majority of the members of such association who were present voted at such election, and the result thereof; which facts must be verified by the officers conducting the election. History: Enacted March 21, 1872, founded upon § 176, Act April 22, 1850, Stats. 1850, p. 374, as amended Act April 8, 1862, Stats. 1862, p. 125; amended March 19, 1909, Stats, and Amdts. 1909, p. 467. See Kerr's Cyc. C. C. for 4 pars, annotation. 52 C. 331, 333 (construed and applied); 128 C. 257, 260, 261, 262, 60 P. 865 (construed and applied); 130 C. 27, 39, 62 P. 386, 390 (construed — requirement as to verification is mandatory). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §595. AMOUNT OF REAL ESTATE TO BE OWNED BY SUCH CORPORATIONS. All such corporations may hold all the property of the association owned prior to incorporation, or acquired thereafter in any manner, and transact all busi- ness relative thereto; but no such corporation must own or hold more real estate than may be necessary for the business and objects of the association, and providing burial-grounds for its deceased members, not to exceed six (6) whole lots in any city or town, nor more than fifty (50) acres in the country, the annual increase, income or profit, whereof must 399 § 595 CIVIL CODE. [Div.T,Pt.IV. not exceed fifty thousand ($50,000) dollars; provided, that any such corporation now or hereafter having, and having had continuously, for the next preceding three (3) years, the care, custody, control, and maintenance each year, upon an annual average of not less than one hundred (100) orphans, half orphans, 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 (160) acres of land in the country, outside of any incorporated city or town, and the annual income or profit of which does not exceed fifty thousand ($50,000) dollars; and provided further, that the limitations herein provided for shall not apply to corporations formed, or to be formed, under section six hundred and two (602) of the Civil Code, when the land is held or used for churches, hospitals, schools, colleges, orphan asylums, parsonages, or cemetery purposes or to corporations organized for social purposes and pur- poses of recreation and not for profit; and provided further, that the limitations herein provided for shall not apply to corporations organized other than for profit, when the land is timber land, and not exceeding one hundred and sixty (160) acres in extent, and is held or used for the purposes of the organizations, in which case said land shall be subject to all laws regulating the preservation of forests. History: Enacted March 21, 1872, founded upon § 182, Act April 22, 1850, Stats. 1850, p. 374; amended Act May 3, 1852, Stats. 1852, p. 168; Act May 3, 1853, Stats. 1853, pp. 140-141; Act March 6, 1863, Stats. 1863, p. 34; amended April 6, 1881, Stats, and Amdts. 1881, p. 9; April 19, 1899, Stats, and Amdts. 1899, p. 10; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 382, held unconstitutional, see history, § 4 ante; amendment re-enacted substantially in form passed in 1901, March 13, 1903, Stats, and Amdts. 1903, p. 136; amended February 21, 1905, Stats, and Amdts. 1905, p. 18. See Kerr's Cj'c. C. C. for 2 pars, annotation. 114 C. 295, 300, 301, 46 P. 2 (referred to with other sections); 119 C. 477, 483 (erroneously cited for §593), 51 P. 841, 843 (same error). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 400 Tit. XII.] HOLDING — REPORT— SALE. §§ 596-598 §596. HOW MUCH LAND FRIENDLY, ETC., SOCIETIES MAY HOLD. In addition to that provided for in the preced- ing section, friendly societies and pioneer associations may liold such real estate as may be necessary to carry out their charitable purposes, or for the establishment and endowment of institutions of learning connected therewith. In case any such corporation is the owner, by donation or purchase, of more lands than herein or in preceding section provided for, such surplus must be sold and conveyed by the corpora- tion within five years after its acquisition. Such sale may be made without the order or decree of the superior court as hereinafter provided. History: Enacted March 21, 1872; amended Act Jan. 25, 1878,- Code Amdts. 1877-8, p. 84; Act April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 6. §597. DIRECTORS TO MAKE VERIFIED REPORT AN- NUALLY. The directors must annually make a full report of all property, real and personal, held in trust for their corporation by them, and of the condition thereof, to the members of the association for which they are acting. History: Enacted March 21, 1872, founded upon § 183, Act April 22, 1850, Stats. 1850, p. 374; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 382, held un- constitutional, see liistory, § 4 ante. §598. SALE, MORTGAGE, AND BOND OF REAL PROP- ERTY. Corporations of the character mentioned in section five hundred and ninety-three may mortgage or sell the real property held by them, and may secure the payment of indebt- edness by deed of trust or mortgage upon their real property, upon obtaining an order for that purpose from the superior court held in the county in which the property is situated. The corporations above mentioned may also issue bonds, payable at any time within twenty years, as evidence of the indebtedness secured by mortgage or deed of trust. [Notice by publication.] Before making the order, proof must be made to the satisfaction of the court that notice 401 § 599 CIVIL CODE. [Div.I,Pt.IV. of the application for leave to sell or mortgage or execute a deed of trust has been given, by publication in such man- ner and for such time as the court or the judge has directed, and that it is to the interest of the corporation that leave should be granted as prayed for. The application must be made by petition, and any member of the corporation may oppose the granting of the order, by affidavit or otherwise. [Not to apply to burial plots.] But nothing herein con- tained shall prohibit or prevent the trustees or directors of such corporation, under such rules and regulations as they may adopt, from disposing of burial plots situated in grounds of such corporation dedicated for burial purposes, without making such application to or obtaining an order from court. History: Enacted March 21, 1872, founded upon § 179, Act April 22, 1850, Stats. 1850, p. 374, a.s amended March 7, 1859, Stats. 1859, p. 87; amended March 30, 1874, Code Amdts. 1873-4, p. 216; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 6; March 16, 1889, Stats, and Amdts. 1889, p. 230; March 20, 1891, Stats, and Amdts. 1891, p. 179. In force March 20, 1891. § 599. AVHAT BY-LAWS, ETC., MAT PROVIDE FOR. Cor- porations now organized or that may hereafter be organized for purposes other than profit, may, either in their by-laws, ordinances, constitutions, or articles of incorporation, pro- vide for: 1. The qualification of members, mode of election or appointment, and terms of admission to membership; 2. The fees of admission and dues to be paid to their treasury by members: 3. The number of persons that shall constitute a quorum at any meeting of the corporation, and that an election of officers of the corporation by a meeting so constituted, or the appointment or selection of such officers, or any of them, in any manner required by the rules, regulations, or discipline of any specified religious denomination, society, or church, shall be as valid as if made at an election at which a major- ity of the members of the corporation were present and voted; 4. The expulsion and suspension of members for miscon- 402 Tit. XII.] MEMBERS — TRANSFER. §§ 600, 601 duct or non-payment of dues, also for restoration to mem- bership ; 5. A special method of organizing the board of directors, and a special method of increasing or diminishing the num- ber of directors within the limits as to number prescribed by section five hundred and ninety-three of this code: 6. Contracting, securing, paying, and limiting the amount of their indebtedness; 7. That the rules, regulations, or discipline, for the time being, of any specified religious denomination, society, or church, shall always be a part of their by-laws, ordinances, constitutions, or articles of incorporation; 8. Other regulations not repugnant to the constitution or. laws of the state and consonant with the objects of the cor- poration. History: Enacted March 21, 1872, founded upon §§ 8, 9, Act April 27, 1863, Stats. 1863, p. 627; amended March 14, 1885, Stats, and Amdts. 1885, p. 136: March 31, 1897, Stats, and Amdts. 1897, pp. 246, 247. See Kerr's Cyc. C. C. for 44 pars, annotation. 90 C. 240, 243, 244, 27 P. 191, 192 (applied); 142 C. 489, 495, 76 P. 238 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. By-laws of ordinary corporations. — See Kerr's Cyc. C. C. § 303 and note. §600. ME^IBEKS ADMITTED AFTER I>C()RPORATIO>. Members admitted after incorporation have all the rights and privileges, and are subject to the same responsibilities, as members of the association prior thereto. m.story: Enacted Marcli 21, 1872, founded upon § 8, Act April 27, 1863, Stats. 1863, p. 627. § 601. NO MEMBER TO TRANSFER 3IE3mERSniP, ETC. 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 provided. History: Enacted March 21, 1872. 403 § 602 CIVIL, CODE. [Div.I.Pt.IV. §602. RELIGIOUS SOCIETY MAY BECOME A CORPO- RATION SOLE. Whenever the rules, regulations, or disci- pline of any religious denomination, society, or church so require, for the administration of the temporalities thereof, and the management of the estate and property thereof, it shall be lawful for the bishop, chief priest, or presiding elder of such religious denomination, society, or church to become a sole corporation, in the manner prescribed 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 for religious incorporations, and subject to all the conditions, limitations, and provisions in said title prescribed. [Powers.] 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 matters and proceedings whatever, and shall have author- ity 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 bequests and devises for its own use or upon trusts to the same extent as natural per- sons may; and to appoint attorneys in fact. [Articles of ineorporation to set forth, what.] The articles of incorporation to be filed shall set forth the facts author- izing such incorporation, and declare the manner in which any vacancy occurring in the incumbency of such bishop, chief priest, or presiding elder is required by the rules, regu- lations, or discipline of such denomination, society, or church to be filled, which statement shall be verified by affidavit, and for proof of the appointment or election of such bishop, chief priest, or presiding elder, or of any succeeding incum- bent 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 originals or a copy of his 404 il Tit. XII.] CORPORATION SOLE. § 602a commission, or certificate, or letters of election or appoint- ment, duly attested; provided, all property held by such bishop, chief priest, or presiding elder shall be in trust for the use, purpose, and behoof of his religious denomination, society, or church. [Certain limitation does not apply.] The limitation in sec- tion five hundred and ninety-five shall not apply to corpora- tions 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. [Continuation of corporation sole.] Any corporation sole heretofore organized and existing under the laws of this state may elect to continue its existence under this title by filing a certificate to that effect, under its corporate seal and the hand of its incumbent, or amended articles of incorpora- tion, 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 provisions in this title expressed. History: Enacted March 30, 1878, Code Amdts. 1877-8, p. 84; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 6; March 11, 1897, Stats, and Amdts. 1897, pp. 101, 102. See Kerr's Cyc. C. C. for 5 pars, annotation. 94 C. 159, 161, 29 P. 623, 624 (applied). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §602a. CORPORATIOX SOLE, CONTINUOUS EXIST- ENCE. Every corporation sole shall have continued succes- sion and continuous existence during the term for which it is organized to exist, notwithstanding vacancies in the incum- bency thereof, and during the period of any such vacancy such corporation sole shall have the same capacity and right 405 § 603 CIVIL CODE. [Div.I.PtJV. to receive and take any gift, bequest, devise or conveyance of property, either as grantee for its own use, or as trustee, and to be or be made the beneficiary of a trust, as though there were no vacancy. No agency created by a corporation sole by a written instrument which in express terms provides that the agency thereby created shall not be terminated by a vacancy in the incumbency of such corporation, shall be terminated or affected by the death of the incumbent of such corporation or by a vacancy in the incumbency thereof, how- ever caused. History: Enacted March 21, 1907, Stats, and Amdts. 1907, p. 836, Korr's Stats, and Amdts. 1906-7, p. 415. In effect imme- diately. §603. RELIGIOUS S0( lETY MAY ELECT DIRECTORS AND INCORPORATE. PROCEDURE. Whenever the regula- tions, rules, or discipline of any church or religious society require, for the administration of the temporalities thereof, or for the management of the property or estate thereof, any diocese, synod, or district organization of such church or religious society may elect directors and become an incorpo- ration in the manner prescribed in this title, and with all the powers 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 provisions in said title prescribed, except as otherwise provided in this section ; [Convention, etc., to elect directors.] Provided, that direct- ors of such incorporation may be elected, and that the by- laws for its government may be made and amended by the convention, synod, or other representative body of such church or religious society, in and for such district, in accordance with the constitution, by-laws, discipline, or regu- lation thereof, at any regular meeting, or special meeting called for that purpose; and. [Certificates of incori»oration to be filed.] Provided, the certificate of incorporation and of the election of directors to be filed shall be sufficiently signed and attested by the 406 'I J Tit. XII.] INCORPORATING CHURCH, ETC. § 604 signature of the presiding officer and secretary of tlie repre- sentative convention, synod, or otlier sucli body, in which such election is held; and, [Property in trust for the society — Section 595 not to apply to these corporations.] Provided, all property held by such incorporation shall be in trust for the use, benefit, and pur- pose 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 organized or constituent part; and that the limitation in section five hundred and ninety- five shall not apply to corporations formed under this sec- tion, when the land is held or used for churches, hospitals, schools, colleges, asylums, parsonages, or cemetery purposes. History: Enacted March 12, 1885, Stats, and Amdts. 1885, pp. 109, 110. It is thought the legislature sought to repeal this provision by the act given in next section, but it is manifestly inadequate for that purpose. See Kerr's Cyc. C. C. for 5 pars, annotation. 114 C. 295, 300, 301, 46 P. 2 (referred to with other sections); 128 C. 257, 262, 60 P. 865 (held not applicable). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 604. SAME. Any church or other religious association in this state, composed of two or more constituent parishes, missions, congregations, or societies, having a common con- vention, synod, council, or other representative legislative body, may be incorporated by such representative body under this part and subject to the provisions of this title, except as otherwise provided in this section. [Name; purpose, term, etc.] The representative body of such religious association electing to incorporate the same, shall determine 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 directors, and shall elect its directors for the first year. [Signed by secretary and president.] The articles of incor- poration need only be signed and acknowledged by the 407 § 604 CIVIL CODE. [Div.T.Pt.IV. presiding officer and secretary of such representative body, and in addition to the requirements of section two hundred 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, canons, rules, or regulations governing the other proceedings of said repre- sentative body, and the time and place thereof. [Election of directors.] The directors of such corporation shall be elected annually by the representative body of the association. [liy-laws; repeal, aniendnient, etc.] The representative body providing for such incorporation shall frame by-laws for the corporation, and such by-laws may be repealed or amended, or new by-laws may be adopted by any subsequent representative body in accordance with the constitution, canons, rules, or regulations governing the other proceedings of such representative body. Such corporation may hold and administer not only the common property, funds, and money of such association, but also the property, funds, and money of any constituent parish, mission, congregation, or society. The limitation in section 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, col- leges, asylums, parsonages, or cemetery purposes. History: Enacted March 11, 1887, Stats, and Amdts. 1887, p. 104-105. In force March 11, 1887. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Kditorial Note: It was manifestly the intention of legislature, in passing the above act, to repeal the act given in § 603 ante; but the effort is manifestly insufficient for that purpose; the repealing clause l)eing: "An act entitled 'An act to amend an act entitled "An act to establish a Civil Code," approved March twenty-first, eighteen hundred and seventy-two, by adding a new section thereto, to be known as six hundred and four, relating to the formation of religious incorporations for hold- ing and administering church property,' approved March twelfth, eighteen hundred and eighty-fiv^e, being inconsistent herewith, is hereby repealed." 408 Tit. XII.] CONSOLIDATION. § 605 §605. CONSOLIDATION OF CORPORATIONS. Any cor- poration now or hereafter organized for purposes other than profit, may consolidate with any other like association or associations, or corporation or corporations, created either under the laws of the State of California, or under the laws of any other state or territory, so as to form a new or con- solidated corporation, in such manner as may be author- ized by the respective boards of directors or trustees of such associations or corporations by resolution adopted at meet- ings of the respective boards called for that purpose. The resolution to be adopted by each of the respective boards shall state the names of all the corporations or asso- ciations to be united by the consolidation, the name of the' state or territory under the laws of which they are created or organized, and the dates of their respective incorporation, the name by which the new or consolidated corporation is to be called or known, the purposes for which it is to be formed, the place where its principal business is to be transacted, the term for which it is to exist, the number of its directors or trustees, and the names and residences of those who are appointed to act as such for the first year, and shall designate three or more persons by whom articles of incorporation of the new or consolidated corporation shall be subscribed and filed in compliance with this section. Articles of incorporation of the new or consolidated cor- poration shall be subscribed and acknoweldged by the persons so designated as last aforesaid in the manner required by section two hundred and ninety-two of this code. Said articles shall contain and set forth all the matters required by section two hundred and ninety of this code, and in addition thereto there shall be attached to said articles copies of the afore- said resolution of the several associations or corporations uniting in the consolidation, certified by the respective secre- taries of such associations or corporations under the corpo- rate seals thereof; and the said articles of incorporation shall in the body thereof refer to the said resolutions and to the certified copies thereof so attached, and by such reference make the said certified copies a part of the said articles. 409 § 605 CIVIL CODE. [Div.I.Pt.IV. The said articles of incorporation shall be filed in the office of the county clerk of the county where the principal business of the new or consolidated corporation is to be transacted, and a certified copy thereof in the office of the secretary of state, in the manner required by this code for the filing of original articles of incorporation; and thereupon the secretary of state shall issue to the corporation, over the great seal of the state, a certificate in manner and form as provided by section two hundred and ninety-six of this code. Fronfc and after the filing of such certified copy of the articles of incorporation with the secretary of state the former associations or corporations uniting in the consolidation and comprising the component parts of the new or consolidated corporation shall cease to exist, and the new or consolidated corporation shall succeed to all the rights, duties and powers of the component associations or corporations, and shall be possessed of all the rights, duties and powers set forth in its articles of incorporation not inconsistent with this title, and shall be subject to all the liabilities and obligations of the former component associations or corporations, and shall suc- ceed to and become vested with all the property thereof, both real and personal, of every name and nature, and may make by-laws and do all things permitted by this title. History: Original section providing for consolidation of debts, enacted Marcti 20, 1903, ' Stats, and Amdts. 1903, p. 252; present section enacted as an amendment April 26, 1909, Stats, and Amdts. 1909, p. 1094. 410 II Tit. Xlla.] HUMANE SOCIETIES. § 607 TITLE Xlla. SOCIETIES FOR THE PREVENTION OF CRUELTY TO CHIL- DREN AND ANIMALS. [This is a new title added by Act Marcli 21, 1905 (Stats, and Amdts. 1905, pp. 590-592), and is a re-enactment of a new title added by Code Commission, Act Marcli 16, 1901 (Stats, and Amdts. 1900-1, pp. 382-384, 429), whicli was held unconsti- tutional, see history, § 4 ante. The title is a codification of Act 1874, Stats. 1873-4, p. 499, and Act 1876, Stats. 1875-6, p. 830.] § 607. Formation of [humane] corporations. § 607a. Power to receive and dispense of property. [Amount.] § 607b. Complaints for violating any law relating to children or aniinals. § 607c. Magistrates and police officers to aid the corporation and its officers. § 607d. Pre-existing corporations. [Title extends to.] § 607e. Fines, penalties, and forfeitures, and the disposition to be made thereof. § 607f. Members and agents may be authorized to act as police officers. § 607g. Children who may be arrested and brought before a court or magistrate for examination. §607. FORMATION OF [HUMANE] CORPORATIONS. Corporations may be formed by any number of persons not less than five, a majority of whom must be citizens and resi- dents of this state, under the general provisions of this code, for the purpose of the prevention of cruelty to children or animals, or both. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductory note to this title. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Formation of corporations — General provisions governing. — See Kerr's C. C. §§ 285-321a and notes. Juvenile courts. — See Hen. G. L., tit. Juvenile Court and notes. Killing, maiming, or torturing animals — Penal provisions. — See Kerr's Cyc. Pen. C. § 597 and notes. 411 §§ 607a-607d CIVIL CODE. [Div.I.Pt.IV. § 607a. POWER TO RECEIVE AND DISPOSE OF PROP- ERTY. [AMOUNT.] Every such corporation may take and hold, by gift, purchase, devise, or bequest, any property, real or personal, and dispose of the same at its pleasure; but it must not hold real property the annual income of which exceed*. fifty' thousand dollars. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductory note to this title. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Powers of corporations in general. — See Kerr's Cyc. C. C. § 354 and note. §607b. COMPLAINTS FOR VIOLATING ANY LAW RE- LATING TO CHILDREN OR ANIMALS. Any such corpora- tion, or any member or officer thereof, may prefer a com- plaint against any person or persons, before any court or magistrate having jurisdiction, for the violation of any law relating to or affecting children or animals, and may aid in the prosecution of any such offender before such court or magistrate in any proceeding taken. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductory note to this title. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Arrest without warrant. — See post § 607f. §(U)7c. MAGISTRATES AND POLICE OFFICERS TO AID THE CORPORATION AND ITS OFFICERS. All magis- trates, constables, sheriffs, and officers of police must, as occasion may require, aid any such corporation, its officers, members, and agents, in the enforcement of all laws which are now or may be hereafter enacted relating to or affecting children or animals. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductory note to this title. §607d. PRE-EXISTING CORPORATIONS. [TITLE EX- TENDS TO.] The provisions of this title extend to all cor- 412 Tit. Xlla.] FINES, ETC.— DISPOSITION OF. § 607e porations heretofore formed and existing for the prevention of cruelty to children or animals, but do not extend or apply- to any association, society, or corporation which uses or specifies a name or style the same, or substantially the same, as that of any previously existing society or corpora- tion in this state organized for a like purpose. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductorj^ note to this title. § 607e. FINES, PEIVALTIES, AND FORFEITURES AND THE DISPOSITION TO BE MADE THEREOF. All fines, pen- alties and forfeitures imposed and collected in any city or. county, or city and county, of this state under the provisions of any law of this state, now or hereafter enacted, relating to or affecting children or animals, in every case where the prosecution was instituted, aided, or conducted by any cor- poration or society now or hereafter existing, incorporated or organized for the prevention of cruelty to animals or to chil- dren must, except where otherwise provided, inure to such corporation or society in aid of the purposes for which it was incorporated or organized. [Compensation from city or county. Amonnt.] In addition to said fines, penalties and forfeiture, every such society incor- porated and organized for the prevention of cruelty to ani- mals, or for the prevention of cruelty to children, may, in each city, or city and county or county where such society exists, while actively engaged in enforcing the provisions of the laws of this state, now or hereafter enacted, for the pre- vention of cruelty to animals or children, or arresting, or prosecuting offenders thereunder, or preventing cruelty to animals or children be paid, as compensation therefor, from the county, or city and county general fund by the board of supervisors, a sum not exceeding one hundred and fifty dol- lars per month, in the same manner as other claims against said county, or city and county, are paid. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 591; amended March 20, 1909, Stats and Amdts. 1909, p. 574. 413 §§607f, 607g CIVIL CODE. [Div.I.Pt.IV. § 607f. MEMBERS AND AGENTS MAY BE AUTHORIZED TO ACT AS POLICE OFFICERS. All members and agents, and all officers of each or any of such corporations or socie- ties, as may by the trustees thereof be duly authorized in writing, approved by a judge of the superior court of the county?- in which such corporation or society was organized, and sworn in the same manner as are constables or peace officers, have power lawfully to interfere to prevent the per- petration of any act of cruelty upon any child or dumb animal, and may use such force as is necessary to prevent the same, and to that end may summon to their aid any bystander. [Make arrests. Weapons and badge.] They may make ar- rests for the violation of any penal law relating to or affect- ing children or animals in the same manner as a constable or other peace officer; and may carry the same or similar weapons that such officers are authorized to carry; provided, however, that in cities of the first class no such member, officer or agent of such societies shall carry such weapon until permission in writing has been first granted to him so to do by the board of police commissioners of said city or cities. All such members and agents must, when making such arrests, exhibit and expose a suitable badge to be adopted by such corporation or society. [Resisting. Penalty.] All persons resisting such specially appointed officers, when performing any duty under this sec- tion, are guilty of a misdemeanor. HLstory: Enacted March 21, 1905, Stats, and Amdts. 1905, p 591; amended February 20, 1909, Stats, and Amdts. 1909, p. 33. §607g. CHILDREN >VHO MAY BE ARRESTED AND BROUGHT BEFORE A COURT OR MAGISTRATE FOR EX- AMINATION. Any child under the age of sixteen years that comes within any of the following descriptions named: 1. Who is found begging or receiving or gathering alms (whether actually begging, or under the pretext of selling or offering for sale anything), or being in any street, road, 414 J Tit. Xlla.] AUTHORITY— POLICE POWER. § 607g or public place for the purpose of so begging, gathering, or receiving alms; 2. "VYlio is found wandering and not having any home or settled place of abode, or proper guardianship, or visible means of subsistence; 3. Who is found destitute, either being an orphan, or hav- ing a vicious parent who is undergoing penal servitude or imprisonment; 4. Who frequents the company of reputed thieres or pros- titutes, or houses of prostitution or assignation, or dance- houses, concerts, saloons, theaters, or variety halls, or other places of amusement where spirituous, malt, or vinous liquors, are sold, without parent or guardian; 5. Who is engaged or used for or in any business, exhibi- tion, vocation, or purpose, in violation of any law of this state; — Must be arrested and brought before a court or magistrate, and when, upon examination before such court or magistrate, it appears that any such child has been engaged in any of the aforesaid acts, or comes within any of the aforesaid descriptions; or when, upon the examination or conviction of any person having the custody of a child, of a criminal assault upon it, the court or magistrate before whom such examination or conviction is had deems it desirable for the welfare of such child that the person so examined or con- victed should be deprived of its custody thereafter; [Order of court upon examination — Commitment of child.] Such court or magistrate, when it deems it expedient for the welfare of such child, may commit such child to an orphan asylum, corporation, or society for the prevention of cruelty to children, charitable or other institution, or make such other disposition thereof as now is or hereafter may be provided by law in cases of vagrant, truant, disorderly, pauper, or desti- tute children. [Power to institute proceedings.] Any corporation, organ- ized under this title, or now existing, for the prevention of cruelty to children, or any officer or member thereof, may 415 § 608 CIVIL CODE. [Div.I,Pt.IV. institute proceedings under this section for the welfare of any such child. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 591-592; see introductory note to this title. See Kerr's" Cyc. C. C. for 6 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, Bee note § 283, ante. TITLE XIII. CEMETERY CORPORATIONS. § 608. How much land may be held and how disposed of. § 609. Who are members eligible to vote and hold office. § 610. May hold personal property, to what amount. How dis- posed of. §611. May issue bonds to pay for grounds. Proceeds of sale, how disposed of. § 612. May take and hold title to what, and how. § 613. When burial lot inalienable. Who may not be buried in lot. § 614. Lot-owners previous to purchase to be members of the corporation. § 615. May sell lands, when. § 616. May take and hold property in trust. Application of income. §608. HOW MUCH LAND MAY BE HELD AND HOW DISPOSED OF. Corporations organized to establish and maintain cemeteries may take, by purchase, donation, or devise, land, not ftxcee(lin^ three Inindred and twenty acres in extent, [1] in the county wherein their articles of incorpo- ration are filed, or [2] in an adjoining county, and [3] 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 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. 416 Tit. XIII.] VOTING — PERSONAL PROPERTY. §§609,610 [Sale, conditions, and restrictions.] Thereafter, upon such terms and subject to such conditions and restrictions, to be inserted in the conveyances, as the by-laws or directors may prescribe, the directors may sell and convey the lots or plats to purchasers. HLstory: Enacted March 21, 1872, founded upon § 4, Act April 18, 1859, Stats. 1859, p. 282; amended March 20, 1891. Stats, and Amdts. 1891, p. 180. In effect March 20, 1891. See Kerr's Cyc. C. C. for 8 pars, annotation. 140 C. 226, 232, 73 P. 987 (construed and applied). As to devise of burial lot, see 67 L. 121. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §609. WHO AEE MEMBERS ELIGIBLE TO VOTE AND HOLD OFFICE. Every person of full age who is proprietor of a lot or plat in the cemetery of the corporation, containing not less than two hundred square feet of land, or, if there be more than one proprietor of any such lot, then such of the proprietors as the majority of joint proprietors designate, may, in person or by proxy, cast one vote at all elections had by the corporation for directors or any other purpose, and is eligible to any office of the corporation. At each annual meeting or election, the directors mnst make a report to the proprietors of all their doings, and of the management and condition of the property and concerns of the corporation. History: Enacted March 21, 1872, founded upon § 5, Act April 18, 1859, Stats. 1859, pp. 282-283. 140 C. 226, 232, 73 P. 987 (referred to with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §610. MAY HOLD PERSONAL PROPERTY, TO WHAT AMOUNT. HOW DISPOSED OF. Such corporations rtiay 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 suc- ceeding section. Such surplus must be disposed of in the improvement, embellishment, and preservation of the ceme- Kerr's C. C— 14 417 § 611 CIVIL CODE. [Div.I,Pt.IV. tery, and paying incidental expenses of the corporation, and in no other manner. History: Enacted March 21, 1872, founded upon § 4, Act April 18, 1859, Stats. 1859, p. 282. 140 C. 226, 232, 73 P. 987 (referred to with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 611. MAY ISSUE BONDS TO PAT FOR GROUNDS. PRO- CEEDS OF SALE, HOW DISPOSED OF. Such corporations may issue their bonds, bearing interest not exceeding twelve per cent per annum, for the purchase of lands for their ceme- teries, payable out of the proceeds of the cemetery 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 payment of the bonds and interest. Such corporations may also agree with the person or persons from whom ceme- tery lands shall be purchased, to pay for such lands, as the purchase price thereof, any specified share or portion, not exceeding one-half, of the proceeds of all sales of lots or plats made for such lands; such payment to be made at such inter- vals 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, the prices for lots or plats specified in the by-laws, rules, or regulations first adopted by such asso- ciation, or prescribed in the agreement between the cemetery and the person or persons from whom the cemetery lands were purchaser, shall not be changed without the written con- sent of a majority in interest of the persons from whom such lands were purchased, their heirs, representatives, or assigns. History: Enacted March 21, 1872, founded upon § 7, Act April 18, 1859, Stats. 1859, p. 281, as amended Act January 13, 1864, Stats. 1863-4, p. 12, and Act April 16, 1880, Code Amdts. 1880 (C. C. pt.), p. 12. In effect April 16, 1880. See Kerr's Cyc. C. C. for 2 pars, annotation. 140 C. 226, 232, 73 P. 987 (referred to with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 418 Tit. XIII.] BURIAL LOT INALIENABLE. § 613 §612. MAY TAKE AND HOLD TITLE TO WHAT, AND HOW. Any corporation organized to establisli and maintain, or to improve, a cemetery, may take and hold title to any cemetery lot, plot or grave, devised or given to it in trust for the specific purpose of perpetually caring for the same. History: Enacted March 21, 1872, founded upon § 9, Act April 18, 1859, Stats. 1859, p. 284; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 384, held unconstitutional, see history, § 4 ante; amended March 26, 1901, Stats, and Amdts. 1900-1, p. 814. 140 C. 226, 232, 73 P. 987 (referred to with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §613. WHEN BURIAL LOT INALIENABLE. WHO MAY NOT BE BURIED IN LOT. Whenever an interment is made in any lot or plat transferred to individual owners by the corporation, the same thereby becomes forever inalienable, and descends in regular line of succession 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 who is not a relative of such owner, or of his wife, except by consent of all jointly interested; [Alienability revived, how.] Provided, however, 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 lawful 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 purchaser, any law to the contrary thereof notwithstanding. History: Enacted March 21, 1872, founded upon § 11, Act April IS, 1859, Stats. 1859, p. 284; amended February 10, 1885, Code Amdts. 1885, pp. 1-2; amended by Code Commission, Act 419 §§ 614, 615 CIVIL CODE. [Div.I.Pt.IV. March' 16, 1901, Stats, and Amdts. 1900-1, p. 385, held uncon- stitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 2 pars, annotation. 115 C. 372, 375, 47 P. 55, 36 L. 618 (construed and applied); 140 C. 226, 232, 73 P. 987 (referred to with other sections). As to character of estate or property of owner in burial lot, see 67 L. 118-126. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §614. L()T-OW>ERS PREVIOUS TO PURCHASE TO BE MEMBERS OF THE CORPORATION. When grounds pur- chased or otherwise acquired for cemetery purposes have been previously used as a burial-ground, those who are lot-owners at the time of the purchase continue to own the same, and are members of the corporation, with all the privileges a purchase of a lot from the corporation confers. History: Enacted March 21, 1872, founded upon § 12, Act April 18, 1859, Stats. 1859, p. 285. 140 C. 226, 232, 73 P. 987 (referred to with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 615. MAY SELL LANDS, WHEN. Cemetery corporations may sell lands held by them upon obtaining an order for that purpose from the superior court of the county where the lands are situated. Before making the order, proof must be made to the satisfaction of the court that notice of the appli- cation for leave to sell has been given by publication in such manner and for 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 granting of the order by affidavit or otherwise. History: Enacted March 4, 1889, Stats, and Amdts. 1889, p. 61. In effect March 4, 1889. 140 C. 226, 232, 73 P. 987 (referred to with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 420 Tit. XIII.] PROPERTY IN TRUST— INCOME. § 616 §616. MAY TAKE A>D HOLD PROPERTY IX TRUST. APPLICATION OF INCOME. Any corporation organized to establish and maintain, or to improve, a cemetery, may take and hold any property bequeathed, granted, or given to it in trust, to apply the proceeds or income thereof to any and all of the following purposes: [Purposes for which may hold.] To [1] the improvement or embellishment of such cemetery or of any lot therein; or to [2] the erection, renewal, repair, or preservation of any monument, fence, or other structure in such cemetery; or to [3] the planting or cultivation of trees, shrubs, or plants in or around such cemetery, or any lot therein; or to [4] the improving, ornamenting, or embellishing of such cemetery, or any lot therein, in any other mode or manner not incon- sistent with the purposes for which such cemetery was estab- lished or is being maintained. [Inyestmeut of proceeds and income, in what.] Such prop- erty and the proceeds or income thereof shall be invested and reinvested in bonds of the United States, or of this state, or of any municipality of this state or in first mortgages on real, estate, or in centrally located income-producing improved real estate in any city, or city and county in this state, if such investment is not repugnant to the terms of the bequest, grant or gift. History: Enacted March 26, 1895, Stats, and Amdts. 1895, p. 162; amended March 25, 1901, Stats, and Amdts. 1900-1, p. 814. See Kerr's Cyc. C. C. for 2 pars, annotation. 138 C. 552, 557, 94. A. S. 70, 71 P. 707 (construed and applied); 140 C. 226, 232, 73 P. 987 (referred to with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 421 §§ 620-622 CIVIL CODE. [Div.I,Pt.IV. TITLE XIV. AGRICULTURAL FAIR CORPORATIONS. § 620. May acquire and hold real estate, how much. § 621. Shall not contract debts or liabilities exceeding amount in treasury. § 622. Not for profit. May fix fee, etc., for membership. § 620. MAY ACQUIRE AND HOLD REAL ESTATE, HOW MUCH. Agricultural fair corporations may purchase, hold, or lease any quantity of land, not exceeding in the aggregate one hundred and sixty acres, with such buildings and improve- ments as may be erected thereon, and may sell, lease, or other- wise dispose of the same, at pleasure. This real estate must be held for the purpose of erecting buildings and other improve- ments thereon, to promote and encourage agriculture, horti- culture, mechanics, manufactures, stockraising, and general domestic industry. History: Enacted March 21, 1872, founded upon § 2, Act March 12, 1859, Stats. 1859, p. 105. § 621. SHALL NOT CONTRACT DEBTS OR LIABILITIES EXCEEDING AMOUNT IN TREASURY. Such corporation must not contract any debts or liabilities in excess of the amount of money in the treasury at the time of contract, except for the purchase of real property, for which they may create a debt not exceeding five thousand dollars, secured by mortgage on the property of the corporation. The directors who vote therefor are personally liable for any debt con- tracted or incurred in violation of this section. History: Enacted March 21, 1872, founded upon § 5, Act March 12, 1859, Stats. 1859, p. 105. §622. NOT FOR PROFIT. MAY FIX FEE, ETC., FOR MEMBERSHIP. Agricultural fair corporations are not con- ducted for profit, and have no capital stock or income other than that derived from charges to exhibitors and fees for 422 Tit. XIV.] PROFIT — MEMBERSHIP FEE. § 622 membership, which charges, together with the term of mem- bership 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 debt for the real estate and the improvements thereon, and to defray the cur- rent expenses of fairs. History: Enacted March 21, 1872, founded upon § 4, Act March 12, 1859, Stats. 1859, p. 105. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 428 § 629 CIVIL CODE. tDiv.T,Pt.IV. TITLE XV. CORPORATIONS TO FURNISH LIGHT FOR PUBLIC USE. [Title XV. was repealed by Act March 21, 1905 (Stats, and Amdts. 1905, p. 592), and a new title substituted therefor, Stats, and Amdts. 1905, pp. 593-594. This substituted title is an exact reproduction, with the addition of § 630a, of the substitution by the Code Commission, Act March 16, 1901 (Stats, and Amdts. 1900-1, pp. 385-386, 429), held unconstitutional, see history, %4 ante.] § 629. Duty to furnish gas or electricity. § 630. When corporations may refuse to supply gas. § 630a. When corporations may refuse to supply electric current for light. § 631. Right to enter buildings for inspection. § 632. Right to shut off supply of gas or electricity. §629. DUTY TO FURNISH GAS OR ELECTRICITY. Upon the application in writing of the owner or occupant of any building or premises distant not more than one hundred feet from any main, or direct or primary wire, of the corpora- tion, and payment by the applicant of all money due from him, the corporation must supply gas or electricity as required for such building or premises, and cannot refuse on the ground of any indebtedness of any former owner or occupant thereof, unless the applicant has undertaken to pay the same. If, for the space of ten days after such application, the corpo- ration refuses or neglects to supply the gas or electricity required, it must pay to the applicant the sum of fifty dollars as liquidated damages, and five dollars per day as liquidated damages for every day such refusal or neglect continues thereafter. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 593; see introductory note to this title. See Kerr's Cyc. C. C. for 48 pars, annotation. 109 C. 140, 144, 41 P. 869, 29 L. 463 (construed and applied); 132 C. 209, 211, 212, 64 P. 258, 54 L. 769 (construed and applied); 141 C. 699, 706, 75 P. 329 (referred to with other sections); 141 C. 710, 711. 712, 75 P. 342 (construed and applied). 424 Tit. XV.] LIGHTING COMPANIES — ELECTRIC. § 629 As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. LIGHTIXG COMPAIVIES — GENERALLY. As to right of municipality to confine gas-works within designated district. — See Kerr's Cyc. Pol. C. §19 par. 20; and Hen. G. L., tit. Gas Companies, act April 4, 1870. Inspector of gas meters — ^Appointment by governor. — See Kerr's Cyc. Pol. C. § 368 par. 1 and note. Same — Provisions as to duties, compensation, etc. — See Kerr's Cyc. Pol. C. §§»577-584 and notes. Same — Term of office.^ — See Kerr's Cyc. Pol. C. § 369 and note. Liability of municipal corporations — In operation of electric lighting plant.— See 9 A. C. 850; 5 L. N. S. 536. Same — To gas company for interfering with pipes in making public improvements. — See 6 A. C. 388. Municipal corporation — Power of to own and operate lighting plant. — See 10 L. 194; 14 L. 268. Nature of business. — See 10 A. C. 667. Regulation of business, light furnished at reasonable rate. — See 9 A. C. 819. 1. Electric Ligliting Company. Control and regulation of — As to, generally, 24 L. 163; 31 L. 798-802; 39 L. 609-621; 44 L. 577. Damages for injury or destruction of trees. — See 2 A. C. 639, 642. Degree of care required. — See 31 L. 568. Duty and liability of — As to generally, see 100 A. S. 515; 31 L. 566-589; 32 L. 351; 32 L. 400. Same — In reference to children. — See 10 A. C. 925. Same — In stringing wires to guard against danger to chil- dren. — See 11 L. N. S. 449. Ejectment to remove wires of. — See 11 L. N. S. 920. Exercise of right of eminent domain by. — See 4 A. C. 987; 5 A. C. 526, 531; 7 A. C. 748; 7 A. C. 1182; 10 A. C. 1055. Grant of franchise to electrical subway company. — See 34 L. 369. Liability — As to wires charged with lighting. — See 31 L. 588. Same — For broken, fallen or sagging wire. — See 31 L. 573. Same — For failure to guard wires from fallen wires of an- i other owner. — See 31 L. 582. Same — For injuries by wire in highways. — See 31 L. 366. Same — To traveler on liighway coming in contact with live wire. — See 4 A. C. 709. Measure of duty of company maintaining wires on another's premises, toward trespasser or licensee on such premises. — See 3 L. N. S. 988. 425 § 629 CIVIL CODE. [Div.I,Pt.lV. Municipal corporation operating lig-liting plant liable for neg- ligence.— See 9 A. C. 850; 5 L. N. S. 536. Negligence — As to wire on or in building. — See 32 L. 400. Same — In removing or repairing broken, fallen or sagging wires. — See 31 L. 579. Poles — And wires of, as personalty or realty. — See 9 A. C. 1192. Same. — As additional burden on highwaj'. — See 24 L. 721: also 17 L. 480. Power house of electric light company as nuisance. — See 8 A. C. 558, 567. Power of city to own plant and manufacture* electricity for lighting purposes. — See 10 L. 194; 14 L. 268. Privilege of using street for poles and wires as contract within provision impairing obligations. — See 50 L. 147. Right to place electric conduits under streets under general charter, authority to enter upon same. — See 9 L. N. S. 407. Stringing electric wires above ground as negligence. — See 9 A. C. 751. Violating ordinance as to electric wires as ground for private action. — See 5 L. N. S. 260. Wires as additional servitude on highway. — See 10 L. 497. 2. Gas Llg^litingr CompnnieN. As manufacturer. — See 10 A. C. 668. Compulsory service by. — See 15 L. 322. Gas pipes in street — As additional burden on easement. — See 17 L. 480; 7 L. N. S. 506. Same — As a nuisance. — See 39 L,. 680. Same — 'Injunction to restraining laying. — See 8 L. 488. Same — Nature of right, generally, 8 L. 487. Same — Privilege of laying, as a contract within provisions against impairing obligation. — See 50 L. 146. Injunction by municipality against for maintaining nuisance. —See 42 L. 821. Legislative regulation of rates charged by. — See 33 L. 181. Liability — For injury to trees by gas escaping from pipes on mains. — See 10 L. N. S. 890. Same — For negligence in escape and explosion. — See 29 L. 337-359. Same — Not insurer of safety of lighting company, what con- stitutes negligence on part of gas company. — See 1 A. C. 66. Same — To, of municipality for change of street grade, in absence of statute allowing compensation, but under constitu- tional provisions against "damaging property." — See 10 A. C. 849. Period covered by contract to supply municipality with gas. — See 20 L. 726. Pipe lines for gas as additional servitude on highways. — See 9 A. C. 1030, 1033. 426 Tit. XV.] REFUSE TO SUPPLY. WHEN. §§ 630, 631 Property as real estate for purposes of taxation. — See 15 L. 299. Rights — Against municipality interfering with pipes in mak- ing public improvements. — See 6 A. C. 390. Same — To stop supply of gas for default payment. — ^See 14 L. 669. § 630. ^VHEJf COKPOEATIOKS MAT REFUSE TO SUPPLY GAS. No corporation is required to lay service pipe where serious obstacles exist to laying it, unless the applicant, if required, deposits in advance, with the corporation, a sum of money sufficient to pay the cost of laying such service pipe, or his proportion thereof. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 593; see introductory note to this title. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to security for gas to be consumed, see Kerr's Cyc. C. C. § 630, note. §630a. WHEN CORPORATIONS MAT REFUSE TO SUP- PLT ELECTRIC CURRENT FOR LIGHT. No corporation is required to construct lines for the supply of electric current for light where serious obstacles exist, nor shall such corpo- ration be I'equired to supply such current from a direct wire at a distance too remote from the generating station, to insure a sufficient supply; nor is such corporation required to supply electric current for light from a primary wire carrying cur- rent of high voltage, unless the applicant deposit, in advance, a sum of money sufficient to pay the actual costs of such con- struction and for the appliances required to supply electric current with safety at the proper voltage. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 593; see introductory note to this title. § 631. RIGHT TO ENTER BUILDINGS FOR INSPECTION. Any owner, manager or superintendent of gas or electric light works, or agent of such owner, manager, or superintendent, exhibiting written authority, signed by such owner, manager 427 § 632 CIVIL CODE. [Div.I.Pt.IV. or superintendent, or any agent of a gas or electric light cor- poration exhibiting written authority signed by the president or secretary thereof for such purpose, may enter any building or premises lighted with gas or electricity supplied by such owner or corporation, to inspect the gas meters or electric meters therein to ascertain the quantity of gas or electricity supplied or consumed. Every owner or occupant of such building who hinders or prevents such entry or inspection must pay to the owner or corporation the sum of fifty dollars as liquidated damages. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 593; see introductory note to this title. As to constitutionality of above section, see Kerr's Cyc. C. C. § 631, note. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 632. RIGHT TO SHIT OFF SUPPLY OF GAS OR ELEC- TRICITY. All gas or electric light corporations may shut off the supply of gas or electricity from any person who neglects or refuses to pay for the gas or electricity supplied, or the rent of any meter, pipes, wires, fittings or appliances, pro- vided by the corporation, as required by his contract; and for the purpose of shutting off the gas or electricity in such case any employee of the corporation may enter the building or premises of such person, between the hours of eight o'clock in the forenoon and six o'clock in the afternoon, of any day and remove therefrom any property of the corporation used in supplying gas or electricity. History: Enacted March 21, 1905, Stats, and Amdts.- 1905, p. 594; see introductory note to this title. See Kerr's Cyc. C. C. for 13 pars, annotation. 132 C. 209, 212, 64 P. 258, 54 L. 769 (cited); 141 C. 699, 706 (referred to with other sections), 708 (construed and applied), 75 P. 329. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 428 Tit. XVI.] BUILDING AND LOAN — POWERS. § 633 TITLE XVI. BUILDING AND LOAN ASSOCIATIONS. [Title XVI, of Part IV, of Division I, of the Civil Code of the state of California, and each and every part and section thereof, is liereby repealed, and a new title XVI is hereby enacted and substituted to take the place thereof in said code, to read as follows:] § 633. Formation, powers, and organization. § 634. Capital stock. [Dues, shares, etc.] § 635. Retiring' free shares. § 636. Maturity of stock. § 637. Loans — Prohibitions — Penalties. § 638. Interest- — Securities — Repayment of loans. § 638a. Witlidrawal or surrender of stock, notice [repealed]. § 639. Arrears in payments — Defaults — Forfeitures. § 640. Purchase of real estate. § 641. Profits and losses. § 642. Withdrawals. § 643. Membership. § 644. State supervision and control. § 645. Annual report. § 646. Foreign corporations— Deposit by. § 647. Investment in and loans upon bonds. § 648. Building and loan association. Definition of term. § 648%. Taxation of. Act taxing stocks not applicable [repealed]. § 648a. Building and loan association. Formation with or with- out guarantee. §633. FORMATION, POWERS, AXD ORGANIZATION. Building and loan associations as hereinafter in this title defined, shall have power to receive money and accumulate funds to be loaned, and to loan the same to their shareholders, investors and others; to permit shareholders and investors to withdraw part or all of their payments, investments or stock deposits, and to prescribe the terms and conditions of such withdrawal; to cancel shares of stock, the payments on which have been withdrawn; to receive deposits of money and to execute certificates therefor, which must specify the date, amount, rate of interest, and when the principal and interest 429 § 633 CIVIL CODE. [Div.I,Pt.IV. are payable, and also the withdrawal value thereof at the end of each year; to borrow money for the purpose of making loans and of paying withdrawals and maturities; and shall have such further powers as may be specifically set forth under this title. [Wliut articles of incorporation must state.] Every such corporation hereafter formed, in setting forth the purposes for which it is formed, shall state, in its articles of incorpora- tion, that it is formed to encourage industry, frugality, home building, and savings among its shareholders and members; the accumulation of savings; the loaning to its shareholders and members of the moneys or funds so accumulated, with the profits and earnings thereon, and the repayment to each, of his savings and profits, whenever they have accumulated to the full par value of the shares, or at any time when he shall desire the same or when the corporation shall desire to repay the same, as may be provided in the by-laws; and shall also state that it is formed for all the purposes specified in this title. History: Original section enacted March 31, 1891, Stats, and Amdts. 189], pp. 252-253; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 923, Kerr's Stats, and Amdts. 1906-7, p. 416. In effect after July 1, 1907. Repealing clause post § 648. See Kerr's Cyc. C. C. for 8 pars, annotation. Former section. — 136 C. 525, 69 P. 225 (referred to). As to estoppel generally to deny corporate existence, see Kerr's Cyc. C. C. § 285 and note. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to provisions of Stats. 1893, see Hen. G. L., tit. Building and Loan Associations. Commissioners of Building and Loan Associations — Powers and duties of. — See Hen. G. L., Tit. Building and Loan Asso- ciations. BUIIiDING AND L,OAN ASSOCIATIONS — GENERALLY. As to province of statute of 1893. — See Hen. G. L. tit. Building and Loan Association, As a co-partnership. — See 1 W. & P. 901. As a savings institution. — See 1 TV. & P. 901. Borrowing members, withdrawal of. — See 35 L. 296. 430 Tit. XVI.] BUILDING AND LOAN— GENERALLY. § 633 Building and loan stock, what is. — See 1 W. & P. 901. Commissioners of Building and Loan Association. — Powers and duties. — See Hen. G. L. tit. Building and Loan Association. Conflict of laws as to usury in contracts of. — See 62 L. 64. Constitutionality of statute exempting from usury laws. — See 2 A. C. 996. Contracts of, whether and when usurious.^See 83 A. D. 612. Definition of building and loan association. — See Kerr's Cyc. C. C. § 648 and note; 1 W. & P. 899. Fines — As to generally, see 35 L. 215-224. Same — Amount and reasonableness of. — See 35 L. 217. Same — Cumulative and successive. — See 35 L. 219. Same — Fines and interest on. — See 35 L. 220. Same — Nature and validity o-f. — See 35 L. 215. Fixed premiums or fixed minimums of premiums in building and loan association. — See 35 L. 244. History, objects and powers of, and membership and its rights and obligations. — See 69 A. D. 158. Insolvency of, effect of upon the riglits and liabilities of members. — See 61 A. S. 24. Liability of advanced member of building and loan associa- tion to assessments for losses. — See 29 L. 177. Loans — How far usurious. — See 18 L. 129. Membership in, what constitutes. — See 1 A. C. 796. Mode of settlement with borrowing members upon premature dissolution. — See 4 A. C. 1080; 10 A. C. 391. Power — To borrow money. — See 11 L. 847. Same — To issue negotiable paper. — See 43 L. 419. Priorities in payment of withdrawals. — See 35 L. 294. Receivers for, when may be appointed. — See 72 A. S. 47. Recovery of usury voluntarily paid. — See 1 A. C. 421. Right to apply payments made on stock upon mortgage given for a loan by the same member. — See 29 L. 120. Savings and loan corporations. — See Kerr's Cyc. C. C. §§ 571- 580 and notes. Status of present contracts. — See post § 648. Termination of liability by withdrawal. — See 35 L. 300. Usury — Conflict of laws as to in contracts of. — See 62 L. 64. Same- — Constitutionality of statutes exempting from. — See 2 A. C. 996. Same^ — How far loans are usurious. — See 18 L. 129. Same — Law governing contracts of. — See 1 A. C. 241. Same — Recovery of voluntarily paid. — See 1 A. C. 421. Waiver by, of by-laws specifying person to whom and time and place at which dues are to be paid. — See 3 A. C. 731. Withdrawal — As to generally. — See 35 L. 289-296. 431 § 634 CIVIL CODE. [Div.I.Pt.IV. Same — Right to, from. — See 8 A. C. 835. Same — When association is insolvent or being wound up. — See 35 L. 298. §634. CAPITAL STOCK. [DUES, SHARES, ETC.] The capital stock of every such corporation shall be divided into shares 'of the matured or par value of one hundred or two hundred dollars each, as provided by the articles of incorpora- tion, and shall be paid in by the stockholders in the manner provided by the by-laws. All such payments shall be called dues. The shares shall be issued in such amounts and at such times as the board of directors shall determine, and certificates of stock shall be issued to each shareholder on the first pay- ment of dues by him. Shares pledged as security for the repayment of a loan shall be called pledged shares, and all others, free shares. All stock matured and surrendered or canceled, shall become the property of the corporation and may be re-issued. The capital stock shall consist of the accu- mulated dues together with the apportioned profits of the cor- poration. [Finos.] Any such corporation shall have power, by its by-laws, to impose and collect a fine from each stockholder, not exceeding five per cent of the defaulted amount, for every neglect or refusal to make his payment when payable. Such fines shall not be cumulative. [Foes.] Every such corporation shall also have power, by its by-laws, to charge an entrance or withdrawal fee, for each share of stock it may issue, not exceeding one dollar on each share, and also to charge a transfer fee, not exceeding ten cents on each share, all of which fees shall be accounted for by the corporation like other funds of the association. No other fee, charge or deduction shall ever be made, or per- mitted to be made against any shareholder, or against any of his shares hereafter issued, or the dues paid in thereon for the purpose of creating a fund to be used in the payment of current or running expenses. [Forms of stock.] The capital stock may be issued in any or all of the following forms: instalment stock, paid-up stock, and guarantee stock. 432 I Tit XVI.] STOCK— INSTALLMENT, PAID UP. § 634 Instalment stock shall be stock on which the member or holder must pay to the corporation on each share held by him, dues in such amounts and at such times as the by-laws may provide and on which the payment of dues must continue on each share until, with the profits allotted thereto, it reaches its matured value or is withdrawn or canceled. Such stock may be issued in series, and when so issued, payment of dues on shares in each series shall commence with the issue of shares in such series. No share of a prior series shall be issued after the issue of shares of a new series, except by way of transfer. Paid-up stock shall be stock for and upon which the owner shall have paid to the corporation, the full par value thereof in cash at the time of subscription therefor, and upon which he shall be entitled either to full participation in the net profits of the corporation, or to an agreed rate of interest or dividend to be specified in the stock certificate, but not to exceed six per cent per annum. All such stock shall be issued under such regulations as may be provided in the by- . laws and fully set forth in each certificate. Guarantee stock shall be stock, provided by the by-laws, to be set apart and sold as a fixed, permanent or guarantee capi- tal. When any such stock has been once so set apart, sold and issued, it shall thereafter remain as a fixed, permanent and guarantee capital, and shall be subject to all the condi- tions and liabilities attaching to the paid-in capital stock of other classes of corporations. Such guarantee stock shall pro- tect and guarantee all other stockholders and creditors against any loss, and when once paid it must be kept unim- paired. [Directors from holders of guarantee stock, when.] Corpo- rations specified in this title, issuing guarantee stock, may provide in their by-laws that a- majority of the board of directors shall be selected from the holders of such stock. History: Original section enacted Marcli 21, 1891, Stats, and Amdts. 1891, pp. 253-254; see introductory note to this title; former section repealed and present enacted March 23, 1907, 433 §§ 635, 636 CIVIL CODE. [Div.I,Pt.IV. Stats, and Amdts. 1907, p. 924, Kerr's Stats, and Amdts. 1906-7, p. 417. In effect after July 1, 1907. Repealing clause post § 648. See Kerr's Cyc. C. C. for 6 pars, annotation. Former section. — 136 C. 525, 69 P. 225 (referred to); 143 C. 253, 258, 76 P. 1034 (what charge is not an "entrance fee"). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status- of present contracts, see post §648. §635. RETIRING FREE SHARES. The directors may in their discretion, under the regulations prescribed by the by- laws, retire any free shares of stock, other than those of the guarantee stock, by enforcing the withdrawal thereof, but whenever the withdrawal of any shares is to be enforced, the holders thereof must be paid the amount actually paid in, and the full amount of earnings at the date of retirement; pro- vided that shares of instalment stock shall not be forced out until after they shall have become four years old. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 254; see introductory note to this title; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 386, held unconstitutional, see history, § 4 ante; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 925, Kerr's Stats, and Amdts. 1906-7, p. 418. In effect after July 1, 1907. Repealing clause post § 648. Former .section. — 136 C. 525, 69 P. 225 (referred to in general way in connection with other sections). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. § 636. MATURITY OF STOCK. When any stock shall have reached its matured value, payment of dues thereon shall cease. Borrowing stockholders whose loans are fully paid shall have their securities released and returned to them. Holders of free shares of stock shall be paid the matured value thereof out of the funds of the corporation, with inter- est at such rate as the by-laws shall provide, from the time the board of directors shall declare such shares to have been matured, until paid; but at no time shall more than one-half 434 Tit. XVI.] LOANS, ETC. — PENALTIES. § 637 of the receipts of the corporation be applicable to the pay- ment of matured shares without the consent of said board. The order of the payment of matured shares, if not otherwise determined by the by-laws, shall be in the numerical order of issuance. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 254; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 925, Kerr's Stats, and Amdts. 1906-7, p. 418. In effect after July 1, 1907. Repealing- clause post § 648. See Kerr's Cyc. C. C. for 9 pars, annotation. Former section. — 136 C. 525, 526, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to power to make, repeal, and amend by-laws, see Kerr's Cj'c. C. C. §§ 301, 303, 304 and notes. Status of present contracts, see post § 648. § 637. LOANS— PROHIBITIONS— PENALTIES. Loans may be made on such terms and conditions as may be prescribed by the board of directors or the by-laws. Loans may be made for a definite time on the instalment plan. The number of instalments in which a loan with agreed interest is to be repaid, must be stated in the note or obligation evidencing the loan, and when the payments have been made in accord- ance with the contract, the borrower shall receive a release of the security given by him. [Unlawful borrowings.] It shall be unlawful for any director or officer of any corporation governed by this title, directly or indirectly, for himself, or as a partner or agent for others, to borrow any of the funds of such corporation, and any officer or director violating the provisions of this section shall be guilty of a felony. Any officer or director of any such corporation who consents on behalf of such corpora- tion to make a loan to any officer or director of such corpora- tion shall be guilty of a felony, and shall also be personally liable to the corporation for the full amount thereof. [Unlawful to loan on own guarantee stock.] It shall be unlawful for any building and loan association to loan any 435 § 638 CIVIL CODE. [Div.I.Pt.IV. of its funds upon any of its own guarantee stock as security. Any officer or director of an association who shall make any such loan for and on behalf of any such association shall be personally liable to the corporation for the full amount thereof, and shall also be deemed guilty of a felony. [Unlawful to invest in or loan funds on mines.] It shall be unlawful for any such corporation to invest any of its funds in, or loan any of its funds upon, any mining shares or min- ing stocks or the stocks or bonds of any corporation, except as in this title provided. Every officer or director who, on behalf of any such corporation shall make any such invest- ment or loan, or who shall consent thereto, shall be person- ally liable to the corporation for the whole amount expended by the corporation in such investment or upon such loan, and shall also be deemed guilty of a felony. HLstory: Orig-inal section enacted March 31, 1891, Stats, and Amdts. 1891, pp. 254-255; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 926, Kerr's Stats, and Amdts. 1906-7, p. 418. In effect after .July 1, 1907. Repealing clause post § 648. See Kerr's Cyc. C. C. for 10 pars, annotation. PoniuT sectiou. — 136 C. 525, 526, 69 P. 225 (construed and held not applicable). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. § 638. INTEREST — SECURITIES — REPAYMENT OF LOANS. The board of directors may fix from time to time the rate of interest on loans. For every loan made, a note or obligation, secured by a first mortgage or deed of trust upon unencumbered real estate, shall be given, accompanied by a pledge to the association of shares of stock, as collateral security for the repayment of the loan, the matured value of which shall equal the amount of the loan, except that there need be no such pledge in loans made to others than mem- bers; or, in lieu of a mortgage or deed of trust, there may be pledged to the association, for the payment of the loan, free shares, but any such loan must not exceed ninety per cent 436 Tit. XVI.] ARREARS, ETC. — ^FORFEITURE. §§ 638a, 639 of the withdrawal value of such shares under the by-laws, at the time of such borrowing. [Repaynient.] At the discretion of the board of directors, a borrower may repay, at any time, the loan with all interest and arrears thereon, upon the surrender of the shares pledged to secure the loan. HLstory: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 255; amended February 25, 1897, Stats, and Amdts. 1897, p. 30; March 11, 1901, Stats, and Amdts. 1900-1, p. 268; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 926, Kerr's Stats, and Amdts. 1906-7, p. 419. In effect after July 1, 1907. Repealing- clause post § 648. See Kerr's Cyc. C. C. for 3 pars, annotation. Former »$eotioii. — 136 C. 525, 69 P. 225 (referred to). As to illegality of usurious rate of interest, see 34 L. 201; 35 L. 244. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Interest — General provisions as to. — See Kerr's Cyc. C. C. §§ 1914-1920 and notes. Usurious rate of interest. — See 4 Encyc. L. 1071-1074. Status of present contracts, see post § 648. §638.1. WITHDRAWAL OK SURRENDER OF STOCK, NOTICE (repealed). History: Original section enacted March 22, 1905, Stats, and Amdts. 1905, p. 753; repealed March 23, 1907, Stats, and Amdts. 1907, p. 923. In effect July 1, 1907. §639. ARREARS IN PAYMENT— DEFAULTS— FORFEIT- URES. Whenever any non-borrowing member shall be six months in arrears in the payment of his dues upon free shares, the secretary may give him notice thereof in writing, and a statement of his arrearages, by mailing the same to him at his last post-office address given by him to the associa- tion; and if he shall not pay all arrearages within two months thereafter, the board of directors may, at 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 withdraw the 437 § 640 CIVIL CODE. [Div.I,Pt.IV. same without interest, upon such notice as shall be required of a withdrawing shareholder. Whenever a borrower shall be three months in arrears in the payment of his dues or interest or loan instalments, 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 associa- tion. The withdrawal value, at the time of exercising such option, of all shares pledged as collateral security, shall be applied to the payment of the loan, and said shares from that time shall be deemed surrendei'ed to the association and canceled. Hi-story: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 255; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 927, Kerr's Stats, and Amdts. 1906-7, p. 419. In effect after July 1, 1907. Repealing clause post § 648. See Kerr's Cyc. C. C. for 13 pars, annotation. Former section. — 93 C. 300, 306, 28 P. 1049, 1050 (referred to); 116 C. 410, 414, 48 P. 375 (construed); 131 C. 336, 341, 63 P. 670 (referring to §639, as it stood originally); 136 C. 525, 526, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. § 640. PURCHASE OF REAL ESTATE. Any such associa- tion may purchase at any sale, public or private, any real estate upon which it may have a mortgage, judgment, lien, or other encumbrance, or in which it may have an interest, and may sell, convey, lease, or mortgage the same at pleasure to any person or persons. Hliiitory: Original section enacted March 31, 1891, Stats, and Anidts. 1891, p. 255; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 927, Kerr's Stats, and Amdts. 1906-7, p. 420. Repealing clause post § 648. Former section. — 93 C. 300, 309, 28 P. 1049, 1050, 1051 (referred to); 116 C. 410, 414, 48 P. 375 (referred to): 131 C. 336, 341, 63 P. 670 (referring to §640, as it stood originally); 136 C. 525, 69 P. 225 (referred to), 438 Tit. XVI.] PROFIT AND LOSS — DIVIDENDS. § 641 As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. § 641. PKOFITS A?fD LOSSES. Profits and losses shall be apportioned at least annually, and shall he apportioned to all shares in each class at the time of such apportionment, accord- ing to the actual or book value thereof. If the guarantee capi- tal herein provided for, if any there be, together with the reserve fund, or if the reserve fund, where there be no guar- antee capital, shall not equal five per cent of the out- standing loans at the time of each apportionment of profits, the directors shall set aside, as a reserve fund, not less than, five per cent of the net profits accruing since the last prior apportionment, and shall continue so to do until said fund shall amount to at least five per cent of the loans in force, at which figure said fund shall thereafter be maintained. Said reserve fund shall at all times be available to meet losses arising from any source not heretofore provided to be assumed by the guarantee capital. [Dividend fund — Reserve.] Every such corporation having a paid-in guarantee capital stock, may provide in their by-laws, that an amount not exceeding one per cent per annum on the average loans in force, shall be set aside from and out of the net profits, at each annual distribution thereof, — or a proportionate amount at each semi-annual distribution, — from which to declare dividends on and provide a reserve fund that shall be specially applicable thereto. At least one- tenth of the amount so set aside shall be carried to such reserve fund until the same shall amount to at least fifty per cent of the paid-in guarantee stock. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 255; see introductory note to this title; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 387, held unconstitutional, see liistory, § 4 ante; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 927, Kerr's Stats, and Amdts. 1906-7, p. 420. In effect after July 1, 1907. Repealing clause post § 648. 439 § 642 CIVIL CODE. [Div.I.Pt.IV. See Kerr's Cyc. C. C. for 2 pars, annotation. Former Meetion. — 93 C. 300, 306, 28 P. 1049, 1050 (referred to); 116 C. 410, 414, 48 P. 375 (referred to); 131 C. 336, 341, 63 P. 670 (referring- to §641, as it stood originally); 136 C. 525, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. StatiMB. of present contracts, see post § 648. § 642. ^VITHDRAWALS. A stockholder or investor, desir- ing to withdraw from any such corporation or to surrender a part or all of his stock, or investment certificate, may do so by giving thirty days notice, in writing, of his intention or desire so to do. On the expiration of such notice, he is enti- tled to receive the full amount paid in upon the stock or investment certificate surrendered, exclusive of the entrance or withdrawal fee, together with such proportion of the earn- ings thereon as the by-laws may provide, or as may be fixed by the board of directors; but not more than one-half of the monthly receipts in any one month must be applied to with- drawals for that month, without the consent of the board of .directors, and no stockholder must be permitted to withdraw whose stock is pledged to the corporation as security for a loan, until such loan is fully paid. All withdrawals must be paid in succession in the order that the notices of intention are given. Whenever the demands of withdrawing stock- holders or investors exceed the money applicable to their pay- ment, the notices of intention to withdraw must be registered in the order of filing and payments thereon must be made in succession, in the order that such notices were filed and registered. The board of directors may permit the with- drawal of a part of the accumulations to the credit of a stock- holder or member, on shares of instalment stock not issued in serial form, without thereby reducing the number of shares held by him. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, pp. 255-256; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 927, Kerr's Stats, and Amdts. 1906-7, p. 421. In effect after July 1, 1907. Repealing- clause post § 648. 440 Tit. XVI.] MEMBERSHIP— SUPERVISION. §§ 643, 644 Former section. — 93 C. 300, 306, 28 P. 1049, 1050 (referred to); 116 C. 410, 414, 48 P. 375 (held not applicable); 131 C. 336, 342, 63 P. 670 (referring to §642, as it stood originally); 136 C. 525, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. § 643. MEMBERSHIP. Any person of full age and sound mind may become a member of an association by taking one or more shares therein and subscribing to the by-laws, and annexing to his signature his post-ofRce address. A minor may hold shares in the name of a parent, guardian, or next friend, as trustee. The shares of stock in any such corporation held by any person, to the extent of one thousand dollars, shall be exempt from execution. Hiistory: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 256; see introductory note to this title; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 387, held unconstitutional, see history, § 4 ante; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 928, Kerr's Stats, and Amdts. 1906-7, p. 421. In effect after July 1, 1907. Repealing clause post § 648. Former section. — 93 C. 300, 306, 28 P. 1049, 1050 (referred to); 116 C. 410, 414, 48 P. 375 (held not applicable); 131 C. 336, 341, 342, 63 P. 670 (referring to §643, as it stood originally); 136 C. 525, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. § 644. STATE SUPERVISION AND CONTROL. All build- ing and loan associations, as in this title defined, doing busi- ness in this state, shall be under the supervision and control of such official or officials as are by law vested therewith; and except in the manner provided in this title, no corpora- tion, firm, or association shall conduct or carry on the busi- ness of accumulating the savings of its shareholders, mem- bers, or investors, and loaning such accumulations to them, in the manner of building and loan associations. 441 § 645 CIVIL CODE. [Div.LPt.IV. History: Original section enacted March 31, 1891, Stats, and Amrlts. 1891, p. 256; see introductory note to tills title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 928. In effect after Julj' 1, 1907. Repealing clause post § 648. Former section. — 93 C. 300, 306, 28 P. 1049, 1050 (referred to); 116 C. 410. 414, 48 P. 375 (held not applicable): 131 C. 336, 341, 342, 344, 63 P. 670 (referring to § 644, as it stood originally); 136 C. 525, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. §645. ANNUAL REPORT. Every association organized under the provisions of this title, and every other association doing a similar business, shall annually make a full report, in writing, of the affairs and condition of such corporation, within thirty days after its annual meeting, to the official or officials vested with powers of state supervision and license. Such reports shall be verified by the oath of the officers mak- ing the same, and a copy of the same shall be delivered to every stockholder, from the office of the corporation, who may call for such report. [Further reports.] Every association shall make any fur- ther reports which the said officials may require, and in such form and as to such matters relating to the conduct of the business of the association as such official or officials may designate. [False statements iu reports perjury, when.] Any wilfully false statement in making and verifying said report shall be perjury. Any such association which shall fail to furnish the said official or officials 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 treasurer of this state, who shall pay the same into such fund as may be pro- vided by law, for the purposes of the official or officials vested with power of supervision and license. 442 Tit. XVI.] FOREIGN — DEPOSIT BY. § 646 History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, pp. 256-257; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 928, Kerr's Stats, and Amdts. 1906-7, p. 421. In force after July 1, 1907. Repealing clause post § 648. See Kerr's Cyc. C. C. for 2 pars, annotation. Former section. — 93 C. 300, 306, 28 P. 1049, 1050 (referred to); 116 C. 410, 414, 48 P. 375 (held not applicable); 131 C. 336, 341, 342, 63 P. 670 (referring to §645, as it stood originally); 136 C. 525, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. §646. FOREIGN CORPORATION— DEPOSIT BY. No building and loan association, oi- company, association, or cor- poration, organized under the laws of any otlier state or ter- ritory, to carry on a business of a like character to that authorized by this title, shall be allowed to do business, or to sell their stock in this state, without first having deposited with the state controller or treasurer the sum of fifty thousand dollars in money, or in United States bonds or municipal bonds of this state, or in mortgages upon real estate located within this state, as a guarantee fund for the protection and indem- nity of residents of the State of California, with whom such companies, associations, or corporations shall do business; the fund so deposited to be paid by the custodian thereof, to the residents of California only, and not then until proof of claim by final judgment has been filed with the custodian of said fund against such foreign company, association, or cor- poration. Any of the securities so deposited may be with- drawn at any time upon others herein provided for, of like amount, being substituted therefor. [Agents of foreign corporations.] 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 misdemeanor, and upon conviction shall be punished by a fine not exceeding one thousand dollars, or by imprisonment in the county jail, 443 §§ 647, 648 CIVIL CODE. [Div.I.Pt.IV. not exceeding twelve months, or by both such fine and impris- onment. History: Original section enacted Marcli 31, 1891, Stats, and Amdts. 1891, p. 257; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 929, Kerr's Stats, and Amdts. 1906-7, p. 422. In effect after July 1, 1907. Repealing clause post § 648. See Kerr's Cyc. C. C. for 2 pars, annotation. Former section. — 93 C. 300, 306, 28 P. 1049, 1050 (referred to); 116 C. 410, 414, 48 P. 375 (held not applicable); 131 C. 336, 339, 341, 342, 63 P. 670 (construed and applied); 136 C. 525, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. § 647. IlVYESTIttENT IN AND LOANS UPON BONDS. Any building and loan association may invest in or loan upon bonds of the United States, of the State of California, or of the coun- ties or municipalities or school districts of said state, but not to exceed twenty-five per cent of its capital. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 257; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 929, Kerr's Stats, and Amdts. 1906-7, p. 423. In effect after July 1, 1907. Repealing clause post § 648. Former seetiou. — 93 C. 300, 306, 28 P. 1049, 1050 (referred to); 116 C. 410, 414, 48 P. 375 (held not applicable); 131 C. 336, 341, 342, 63 P. 670 (referring to § 647, as it stood originally); 136 C. 525, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Status of present contracts, see post § 648. §648. BUILDING AND LOAN ASSOCIATION. DEFINI- TION OF TERM. The name "building and loan association" as used in this title shall include: — First. Corporations formed for the purpose of receiving money from, and loaning money to, their members Only. Second. Corporations, associations, companies, copartner- ships, and individuals transacting the business of issuing or 444 Tit. XVI.] FORMATION — GUARANTEE. §§ 6481/^, 648a selling bonds, debentures, certificates, shares of stock, or other papers, by whatever names said instruments may be designated, whether said instruments are issued for money paid in advance or for money to be paid in installments, but with an intent, either implied or expressed, that the proceeds or accumulated installments thereof and thereon are to be withdrawable or repayable, with accumulated profits, at some future fixed, or indefinite date of maturity; provided always, that this section does not include persons, copartnerships or corporations engaged in any kind of banking business. [In effect when.] Sec. 2. This act shall take effect and be in force from and after its passage. Hi.story: Enacted March 31, 1891, Stats, and Amdts. 1891, p 257; former section repealed and present section enacted March 23, 1907, Stats, and Amdts. 1907, p. 929, Kerr's Stats, and Amdts. 1906-7, p. 423; amended March 22, 1909, Stats, and Amdts. 1909, p. 609. See Kerr's Cyc. C. C. for 2 pars, annotation. Former isectiun. — '127 C. 37, 39 (erroneously cited for § 648 C. C. P.), 59 P. 206 (correct citation); 131 C. 336, 342, 63 P. 670 (referring to §648 of original code as liaving been repealed); 64 P. 1000, 1007 (erroneously cited in dis. op. of Temple, J., for § 864); 136 C. 525, 69 P. 225 (referred to). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. Definition of building and loan association. — See 1 W. & P. 899-901. §648^^. TAXATION OF. ACT TAXING STOCKS NOT APPLICABLE (repealed). History: Enacted March 31, 1891, Stats, and Amdts. 1891, pp. 257-258; see introductory note to this title; repealed March 22, 1905, Stats, and Amdts. 1905, p. 759. 136 C. 525, 69 P. 225 (referred to with other sections in gen- eral way). As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. § 648a. BUILDING AND LOAN ASSOCIATIONS. FORMA- TION WITH OR WITHOUT GUARANTEE. Building and loan associations may be formed under this title with or without 445 § 648a CIVIL CODE. [Div.I.Pt.IV. guarantee or other capital stock, with all the rights, powers and privileges and subject to all the restrictions and lia- bilities set forth in this title. If formed without any capital stock or with guarantee capital stock only, the working capi- tal may be accumulated by the issue of membership shares, units or certificates having a paid up or ultimate matured installment value of one hundred or two hundred dollars each, and entitled to all the rights, powers and privileges and subject to all the restrictions and liabilities provided in this title for shares of authorized capital stock of a similar class. Any building and loan association heretofore formed may re-incorporate under the provisions of this section and may substitute membership shares, units or certificates of similar classes for its outstanding or authorized shares of capital stock, other than guarantee capital stock, by the unanimous vote of its board of directors and by a vote or written assent of the stockholders representing at least two- thirds of the subscribed capital stock and by filing amended articles of incorporation with the county clerk of the county in which the corporation's principal place of business is located and a copy of said amended articles, certified by such county clerk, in the office of the secretary of state. Hi.st«»ry: Enacted March 25, 1909, Stats, and Amdts. 1909, p. 721. 446 Tit. XVII.] COLLEGES AND SEMINARIES. §§649,6-50 TITLE XVII. COLLEGES AND SEMINARIES OF LEARNING. [This is a new title added by Act March 14, 1885, Stats, and Amdts. 1885, p. 132.] § 649. Articles of incorporation. Contents of. § 650. Board of trustees; term; quorum; powers. § 651. Existing- corporations may reincorporate under this act. § 649. ARTICLES OF I>C(>RPORATIO>. ( OXTEXTS OF. Any number of persons who may desire to establish a col- lege or seminary of learning may incorporate themselves as provided in this part, except that in lieu of the requirements of section two hundred ninety, the articles of incorporation shall contain: 1. The name of the corporation. 2. The purpose for which it is organized. 3. The place where the college or seminary is to be con- ducted. 4. The number of its trustees, which shall not be less than five nor more than twenty-five, and the names and residences of the trustees. The term for which the trustees named and their successors are to hold office may also be stated. If it is desired that the trustees, or any portion of them, shall belong to any organization, society, or church, such limita- tion shall be stated. 5. The names of those who hare subscribed money or prop- erty to assist in founding the seminary or college, together with the amount of money and description of property .sub- scribed. History: Enacted March 14, 1885, Stats, and Amdts. 1885, p. 133; amended February 20, 1909, Stats, and Amdts. 1909, p. 30. §650. BOARD OF TRUSTEES; TERM; QU0RU3I; POW- ERS. Unless otherwise provided in the articles of incorpora- tion the board of trustees shall, as soon as organized, so classify themselves that one-fifth of their number shall go 447 § 650 CIVIL CODE. [Div.I.Pt.IV. out of ofBce every year, and thereafter the trustees shall hold office for five years. [Quorum.] A majority of the trustees shall constitute a quorum for the transaction of business, and the office of the corporation shall be at the college or seminary. [Powers of trustees.] The trustees shall have power: 1. [To elect i)resl(leiit.] To elect, by ballot, annually one of their number as president of the board. 2. [To fill vacancies.] 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 own motion appoint others. 3. To elect additional trustees; provided, the whole number elected shall never exceed twenty-five 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 hold i>roi>erty.] To receive and hold, by purchase, gift, devise, bequest, or grant, real or personal property for educational purposes connected with the corporation, or for the benefit of the institution. 6. To sell, niortg:age, lease and otherwise use and dispose of the property of the corporation in such manner as they shall deem most conducive to the prosperity of the corpora- tion. 7. To direct and prescribe the course of study and disci- pline to be observed in the college or seminary. 8. To appoint a president of the college or seminary, who shall hold his office during the pleasure of the trustees. 9. To a|)p<»int sucli jtrofessors, tutors, and other officers as they shall deem necessary, who shall hold their offices during the pleasure of the trustees. 10. To grant such literary honors as are usually granted by any university, college, or seminary of learning in the 448 Tit.XVII.] REINCORPORATING. § 651 United States and in testimony thereof to give suitable diplomas under their seal, and the signature of such officers of the corporation and the institution as they shall deem expedient. 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 necessary and proper to carry into effect the preceding powers and neces- sary to advance the interests of the college or seminary; provided, that no by-laws or ordinances shall conflict with the constitution or laws of the United States, or of this state. History: Enacted March 14, 1885, Stats, and Amdts. 1885, p. 133; amended March 20, 1909, Stats, and Amdts. 1909, p. 588. §651. EXISTING CORPORATIONS MAY REINCORPO- RATE UNDER THIS ACT. Any educational corporation, or body claiming to be such, now existing, may, by a unanimous vote of those of its trustees present at a special meeting called for that purpose, and of which due notice shall be given to each trustee, convey all its property, rights, and franchises, to a corporation organized under this title. The fact that due notice of the meeting was given to each trustee shall be con- clusively proven by the entries in the minutes of the corpora- tion or body making the conveyance. Said minutes shall be certified to be correct by the president and secretary. History: Enacted March 14, 1885, Stats, and Amdts. 1885, p. 134. In effect March 14, 1885; amended March 20, 1909, Stats, and Amdts. 1909, p. 588. Kerr's C. C. — 15 449 § 652 CIVIL CODE. [Div.I.Pt.IV. TITLE XVIII. CONSOLIDATION OF COLLEGES AND INSTITUTIONS OF HIGHER EDUCATION. § 652. Societies and organizations autliorized to consolidate. § 653. Specific grants, etc., must not be diverted. §652, SOCIETIES AND ORGANIZATIONS AUTHORIZED TO CONSOLIDATE. Whenever any benevolent, religious or fraternal organization or society, having a grand lodge, assem- bly, conference or other legislative or representative head in the State of California, having two or more colleges or insti- tutions of higher education under its patronage, shall, for the purpose of greater efficiency and simplicity in the administra- tion of its educational interests, desire to consolidate such institutions under one management, such organization or society shall be and is hereby authorized to consolidate such institutions under one management by complying with the following provisions: [New Corporation — Trustees — Term of office.] Such grand lodge, assembly, conference or other legislative or representa- tive 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 consist of the persons constituting the boards of trustees of the several institutions, respectively thus consolidating, and others; provided the number of trustees shall not exceed forty-five. The board of trustees shall be so classified that the term of office of one- third of its number shall expire each year; the successors of such trustees, as their terms expire, shall be elected by such grand lodge, assembly, conference or other legislative or rep- resentative head, at its annual meeting. The said hoard of trustees shall report annually to the grand lodge, conference, assembly or other legislative or representa- tive head controlling it, the condition of affairs of such cor- poration, and the amount and manner of its receipts and expenditures. 450 Tit.XVIII.] GRANTS— DIVIDING. § 653 [Reduction of board of trustees— Limitation.] After the two or more colleges or institutions of higher education under the patronage of any benevolent, religious or fraternal organiza- tion or society, having a grand lodge, assembly, conference or other legislative or representative head in the State of California shall have become consolidated as hereinabove directed or specified, the board of trustees of the new corpora- tion, consisting at first of the persons constituting the boards of trustees of the several institutions, respectively thus con- solidated, may be reduced in number after said board of trus- tees shall have transacted the business of said corporation for a period of five years after such consolidation. Said num- ber shall be reduced by the grand lodge, assembly, conference or other legislative or representative head of said colleges or institutions of higher education in the following manner, viz.: At any annual session of such grand lodge, assembly, confer- ence or other legislative or representative head, there shall be dropped from the number of trustees to be elected at that ses- sion of such grand lodge, assembly, conference or other legis- lative or representative head such a number of trustees as those present at such session shall determine, provided how- ever, that at no time shall the number of trustees composing such board be less than fifteen. History: Enacted Feb. 23, 1893, Stats, and Amdts. 1893, p. 4; amended March 9, 1895, Stats, and Amdts. 1895, p. 40; March 15, 1909, Stats, and Amdts. 1909, p. 385. §653. SPECIFIC GRAKTS, ETC., MUST NOT BE DIVERTED. The several boards of trustees of the institu- tions thus consolidated shall be and are hereby authorized and directed to transfer all property, real and personal, held by them, to the new corporation, 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 receiving such property shall assume all indebtedness and liabilities of such institutions as are thus consolidated, but shall not transfer such property from one location to another, except by an 451 § 653 CIVIL CODE. [Div.I.Pt.IV. affirmative vote of not less than three-fourths of the said board of trustees of the new corporation, nor divert 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 personal, of the various institutions to the new corporation, as hereinabove provided, and the same has been accepted by the said new corporation, then the franchises held by the corporations thus consolidating shall cease, and the said corporations shall be thereby dissolved. History: Enacted Feb. 23, 1893, Stats, and Amdts. 1893, p. 4; amended March 9, 1895, Stats, and Amdts. 1895, p. 40. 452 II Tit.XIX.] CO-OPERATIVE CORPORATIONS. § 653a TITLE XIX. CO-OPERATIVE BUSINESS CORPORATIONS. [A new title added by Act March 21, 1905, Stats, and Amdts. 1905, p. 594.] § 653a. Purposes for which may be formed. §653a. PURPOSES FOR WHICH MAY BE FORMED. Co-operative business corporations may be formed for doing any lawful business, and dividing a portion of their profits among persons other than their stockholders. Each of such corporations may, in its by-laws, in addition to the matters specified in section three hundred and three, provide the amount of profits which must be divided among persons other than its stockholders, and the manner in which and the per- sons among whom such division maj' be made. Hi-story: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 594. See Kerr's Cyc. C. C. for 15 pars, annotation. As to how private corporations may be formed, see Kerr's Cyc. C. C. § 285 and note. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to purposes for which private corporations may be formed, see Kerr's Cyc. C. C. § 286 and note. Amount due member of co-operative bank subject to trustee process. — See 3 L. 416. 453 § 653b CIVIL CODE. [Div.I,Pt.IV. TITLE XX. CO-OPERATIVE BUSINESS ASSOCIATIONS. [A new title added by Act March 21, 1905, Stats, and Amdts. 1905, pp. 595-599.] § 653b. Formation and purposes of. § 653c. Rights, interests, and liabilities of members. § 653d. Tlie articles of association. § 653e. Tlie by-laws. § 653f. Execution against the association or its members. § 653g. Purpose of the association, how may be altered. § 653h. Powers of the association. § 653i. Consolidation of associations. § 653j. Dissolution and winding up of association. § 653k. Quo warranto to inquire into the right of an association to do business. § 6531. What corporations or associations are not affected by this title. §6531). FOKMATION AND PURPOSE OF. Five or more persons may form a co-operative association for the transac- tion of any lawful business, whether for profit or not, or for the promotion of any educational, industrial, benevolent, social, or political purpose. Such association must not have any capital stock, but must issue membership certificates to each member. [Certificate of meiiibcrship — Transfer.] Such certificate cannot be assigned, so that the assignee can, by its transfer, become a member of the association, but, by a resolution of its board of directors, such certificate may be transferred, and the transferee made a member in lieu of the last former holder. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 595. See Kerr's Cyc. C. C. for 8 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. 454 II Tit.XX.] RIGHTS AND LIABILITIES. §§ 653c, 653d § 653c. RIGHTS, IJfTEEESTS, AND LIABILITY OF MEM- BERS. In such association the rights and interests of all members are equal, and no member can have or acquire a greater interest therein than any other member has. At every election held pursuant to the by-laws each member must be entitled to cast one vote and no more. [Who are eligible to membersliip.] All persons above the age of eighteen years, regardless of sex, are eligible to mem- bership, if otherwise qualified and elected as the by-laws may provide. The by-laws must provide for the amount of the indebtedness which such association may incur. [Liability of members.] And no member shall be respon- sible individually, or personally liable, for any of the debts' or liabilities of the association in excess of his proportion of such indebtedness; but in case of the failure and insolvency of such association, may be required to pay any unpaid dues or instalments which have, before such insolvency, become due from such member to the association, pursuant to its by-laws. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 595. See Kerr's Cyc. C. C. for 6 pars, annotation. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. §653(1. THE ARTICLES OF ASSOCIATION. Every asso- ciation formed under this title must prepare articles of asso- ciation, in writing, stating: The name of the association, 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, not to exceed fifty years, the number of the directors thereof, and the names and residences of those selected for the first year, the amovmt which each member is to pay upon admis- sion as membership fee, and that each member signing the articles has actually paid in such sum, and that the interest and right of each member therein is to be equal. [Subscription and acknowledgment; filing.] Such articles of association must be subscribed by the original associates 455 § 653e CIVIL CODE. [DivJ.Pt.IV. or members, and acknowledged by each before some person competent to take an acknowledgment of a deed in this state. Such articles so subscribed and acknowledged must be filed in the office of the clerk of the county wherein the principal business of the association is to be transacted, and a copy thereof certified by such clerk, with the secretary of state, who must thereupon issue his certificate in the form, and having the effect prescribed in section two hundred and ninety-six. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 595-596. As to articles of association, what they must set forth, and number of directors, see Kerr's Cyc. C. C. P. § 290 and note. As to filing articles of incorporation in the office of the clerk in tlie county in which the principal office is to be located, see Kerr's Cyc. C. C. P. § 294 and note. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to subscription and acknowledgment of articles of incor- poration, see Kerr's Cyc. C. C. P. § 292 and note. § 653o. THE BY-LAWS. Every association formed under this title must, within forty days after it so becomes an asso- ciation, adopt a code of by-laws for the government and management of the association, not inconsistent with this title. A inajoritj of all the associates is 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 amendment, given as the by-laws may provide. [What by-laws may i>rovide — Number, terms, and compen- sation of officers.] Such association may, by its by-laws, pro- vide for the time, place, and manner of calling and conducting its meetings; the number of directors, the time of their elec- tion, 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 otherwise, and the power and authority of such directors, and how many 456 I Tit.XX.] BY-LAWS— PROVISIONS OF. § 653e thereof are necessary to the exercise of the powers of such directors, which must be at least a majority; the compensa- tion of any of the directors, or of any officer; the number of the officers, if any, other than the directors, and their term of office; the mode of removal, and the method of filling 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 otherwise; [Manner of conducting election; qualifications and succes- sion; expulsion.] Provided the method secures the secrecy of the ballot; the mode and manner of succession of mem- bership, and the qualifications for membership, and on what conditions, and when membership must cease, and the mode' and manner of expulsion of a member, subject to the right of an expelled member to have the board of directors appraise his interest in the association in either money, property, or labor, as the directors may deem best, and to have the money, property, or labor so awarded him paid, or delivered, or per- formed within forty days after expulsion; [Amount of membership fees, dues, etc.] The amount of membership fee, and the dues, instalments, or labor which each member must be required to pay or perform, if any, and the manner of collection or enforcement, and for forfeiting or selling of membership interest for non-payment or non- performance; [Withdrawal; ascertainment of interest.] The method, time, and manner of permitting the withdrawal of a member, if at all, and how his interest must be ascertained, either in money or property, and within what time the same must be paid or delivered to such member; the mode and manner of ascertaining the interest of a member at his death, if his legal representatives or none of them desire to succeed to the mem- bership, and whether the same must be paid to his legal rep- resentatives in money, or property, or labor, and within what time the same must be paid, or delivered, or performed; such other things as may be proper to carry out the purpose for which the association was formed. 457 § 653f CIVIL CODE. [Div.I,Pt.IV. [Division of profits.] The by-laws must provide for the time and manner in whicli profits must be divided among the members, and what proportion of the profits, if any, must be added to the common property 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 instalment of earn- ings, at their discretion. [Recording and filing by-laws.] The by-laws and all amendments must be recorded in a book and kept in 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. History; Enacted March 21, 1905, Stats, and Amdts. 1905, p. 596-597. As to by-laws, adoption of, etc., see Kerr's Cyc. Pol. C. § 301 and note. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to recording and amending by-laws, see Kerr's Cyc. C. C. P. § 304 and note. As to what by-laws may be adopted, see 85 A. D. 617-622. As to what by-laws may provide for, see Kerr's Cyc. C. C. P. § 303 and note. §653f. EXECUTION AGAINST THE ASSOCIATION OR ITS MEMBERS. The property of such association is subject to attachment and execution for its lawful debts. 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 mem- ber in the association, with the consent of the directors to the rights of the member whose interest is thus sold. If the directors choose to pay or settle the matter 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 reissue the share or right to a new member upon proper payment therefor, as the directors may determine. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 597. 458 Tit.XX.] PURPOSE AND POWERS. §§ 653g-653i § 653g:. PURPOSE OF THE ASSOCIATION, HOW MAY BE ALTERED. The purpose of the business may be altered, changed, modified, enlarged, or diminished bj' 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-laws provide for the election of directors. History: Enacted March 21, 1905, Stats, and Amdts. 1905 p. 597. § 653h. POWERS OF THE ASSOCIATION. Every associa- tion formed under this title has power of succession by its associate name for fifty years; in such name to sue and be sued in any court; to make and use a common seal, and alter the same at pleasure; to receive by gift, devise, or purchase, hold, and convey real and personal property, as the purposes of the association may require; to appoint such subordinate agents or officers as the business may require; to admit asso- ciates or members, and to sell or forfeit their interest in the association for default of instalments, or dues, or work, or labor required, as provided by the by-laws; to enter into any and all lawful contracts or obligations essential to the trans- action of its affairs, for the purpose for which it was formed, and to borrow money, and issue all such notes, bills, or evi- dences of indebtedness or mortgage as its by-laws may pro- vide 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. HLstory: Enacted March 21, 1905, Stats, and Amdts. 1905 pp. 597-598. As to many miscellaneous matters as to corporations gen- erally, see note § 283, ante. As to powers of association, see Kerr's Cyc. C. C. § 305 and note. §6o3i. CONSOLIDATION OF ASSOCIATIONS. Two or more associations formed and existing under this title, or under any pre-existing law authorizing their formation for the same purposes, may be consolidated, upon such terms, and 459 § 653j CIVIL CODE. [Div.I,Pt.IV. for such purposes, and by such name, as may be agreed upon, in writing, signed by two-thirds of the members of each such association. [What agreement must state; filing:; fee.] 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 acknowledgment of deeds in this state, and be filed in the office of the county clerk of the county wherein the principal business of the association is to be transacted, and a certified copy thereof in the office of the secretary of state, and pay the same fees for filing and recording as required by this code for the filing and recording of the certified copy of the original articles of asso- ciation; and from and after the filing of such certified copy, the former associations comprising the component parts cease to exist, and the consolidated association succeeds to all the rights, duties, and powers of the component associa- tions, and is possessed of all the rights, duties, and powers prescribed in the agreement of consolidated association not inconsistent with this title, and is subject to all the liabilities and obligations of the former component associations, and succeeds to all the property and interests thereof, and may make by-laws and do all things permitted by this title. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 598. §653j. DISSOLUTION AND WINDING UP OF ASSOCIA- TION. Any association formed or consolidated under this title may be dissolved and its affairs wound up voluntarily by the written request of two-thirds of the members. Such request must be addressed to the directors, and must specify reasons why the winding up of the affairs of the association is deemed advisable, and must name three persons who are members to act in liquidation and in winding up the affairs of the association, a majority of whom must thereupon have full power to do all things necessary to liquidation; 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 460 Tit.XX.] QUO WARRANTO. §§ 653k, 6531 the principal business is transacted, all power of the directors ceases and the persons appointed must proceed to wind up the association, and realize upon its assets, and pay its debts, and divide the residue 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 must be deemed dissolved. No receiver of any such association, or of any property thereof, or of any right therein, can be appointed by any court, upon the appli- cation of any member, save after judgment of dissolution for usurping franchises at the suit of the state of California by its attorney-general. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 598. § 653k. QUO WARRANTO TO IIVQITIRE INTO THE RIGHT OF AN ASSOCIATION TO DO BUSINESS. The right of any association claiming to be organized under this title to do business may be inquired into by quo warranto, at the suit of the attorney-general of this state, but not otherwise. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 599. § 6531. WHAT CORPORATIONS OR ASSOCIATIONS ARE NOT AFFECTED BY THIS TITLE. This title is not appli- cable to railroads, telegraph, telephone, banking, insurance, building and loan, or any other corporation, unless the special provisions of this code, applicable thereto, are complied with. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 599. 461 §§ 653m, 653n CIVIL CODE. [Div.I.Pt.IV. TITLE XXI. NON-PROFIT CO-OPERATIVE AGRICULTURAL, VITICULT- URAL AND HORTICULTURAL ASSOCIATIONS. [A new title to be XXI of part IV of division First added by Act February 12, 1909, to read as follows:] § 653m. Formation and Purposes of. § 653n. Membership. § 653o. Articles of Incorporation. § 653p. By-laws. § 653q. Powers of Association. § 653r. Amendment to Articles of Incorporation. S 653s. Quo Warranto. § 653111. FOKMATIO> AND PURPOSES OF. Three or more persons engaged in the production, preserving, drying, pack- ing, shipping, or marketing of agricultural, viticultural or horticultural products, or all of them, may form a non- profit co-operative association under the provisions of this title, to carry on said business, and such association shall have, and may exercise, the powers authorized by this title, and the powers necessarily incidental thereto, and all other powers granted to private corporations by the laws of this state, except such powers as are inconsistent with those granted by this title. Hlstfjry: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 16. § 65311. MEMBERSHIP. Such association shall not have a capital stock, and its business shall not be carried on for profit. Any person or any number of persons, in addition to the original incorporators, may become members of such association, upon such terms and conditions as to member- ship, and subject to such rules and regulations as to their, and each of their, contract and other rights and liabilities between it and the member, as the said association shall pro- vide in its by-laws. 462 II Tit.XXI.] MEMBERSHIP — ARTICLES. § 653o [Certificate of memhersliip. Right of succession.] The association sliall issue a certificate of membership to each member, but the said membership, or the said certificate thereof, shall not be assigned by a member to any other person, nor shall the assigns thereof be entitled to member- ship in the association, or to any property rights or interest therein. Nor shall a purchaser at execution sale, or any other person who may succeed, by operation of law or other- wise to the property interests of a member, be entitled to membership, or become a member of the association by vir- tue of such transfer. The board of directors may, however, by motion duly adopted by it, consent to such assignment or transfer and to the acceptance of the assignee or transferee as a member of the association, but the association shall have the right, by its by-laws, to provide for or against the transfer of membership and for or against the assignment of membership certificates, and also the terms and conditions upon which any such transfer or assignment shall be allowed. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 17. §6530. ARTICLES OF INCORPORATION. Each associa- tion formed under this title must prepare and file articles of incorporation setting forth: 1. The name of the association. 2. The purpose for which it is formed. 3. The place where its principal business will be transacted. 4. The term for which it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted office. 6. Whether the voting power and the property rights and interest of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules 463 § 653p CIVIL CODE. [Div.I.Pt.IV. applicable to all members by which the voting power and the property rights and interests, respectively, of each mem- ber may and shall be determined and fixed, but the associa- tion shall have power to admit new members who shall be entitled to vote and to share in the property of the associa- tion with the old members, in accordance with such general rule. This provision of the articles of incorporation shall not be altered, amended, or repealed except by the unani- mous written consent or the vote of all the members. 7. Said articles must be subscribed by the original mem- bers and acknowledged by one of them before an officer authorized by the law of this state, to take and certify acknowledgments of deeds of conveyance, and shall be filed in accordance with the provisions of section two hundred and ninety-six of this code, and when so filed the said articles of incorporation or certified copies thereof shall be received in all the courts of this state, and other places, as prima facie evidence of the facts contained therein. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 17. § GSSp. BY-LAWS. Each association incorporated under this title must, within thirty days after its incorporation, adopt a code of by-laws for its government and management not inconsistent with the provisions of this title. A majority vote of the members or the written assent of members rep- resenting a majority of the votes, is necessary to adopt such by-laws. The provisions of sections three hundred and three and three hundred and four of this code, which are not inconsistent with the provisions of this title, shall apply to the by-laws of the corporations provided for in this title. Each association may also, by its by-laws adopted as afore- said, provide for the following matters: 1. The manner of removal of any one or more of its directors and for filling any and all vacancies in the board of directors. 464 TitXXI.] BY-LAWS— PROVISIONS. § 653q 2. The number of directors and the number of members or votes thei-eof constituting a quorum. 3. The conditions upon which and the time when mem- bership of any member in the association shall cease; the mode, manner and effect of expulsion of a member, subject to the right of the expelled member to have the board of directors equitably appraise his property interests in the association and to fix the amount thereof in money, and to have the money paid to him within sixty days after such expulsion. 4. The amount of membership fee, if any, and the amount which each member shall be required to pay annually, or from time to time, if at all, to carry on the business of the association, and also the compensation, if any, to be paid by each member for any services rendered by the associa- tion to him, and the time of payment and the manner of collecting the same, and for forfeiture of the interest of the member in the association for non-payment of the same. 5. The number and qualifications of members of the asso- ciation and the conditions precedent to membership and the method, time and manner of permitting members to With- draw, and providing for the assignment and transfer of the interest of members, and the manner of determining the value of such interest and providing for the purchase of such interest by the association upon the death, withdrawal or expulsion of a member or upon the forfeiture of his membership, at the option of the association. 6. Permitting members to vote by their proxies, and deter- mining the conditions, manner, form and effect thereof. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 18. §653q. POWERS OF ASSOCIATIOIV. Each association Incorporated under this title shall have the powers granted by the provisions of this code and other laws of California relating to private corporations, and shall also have the following powers: 465 § 653q CIVIL CODE. [Div.I,Pt.IV. 1. To appoint such agents and officers as its business may require, and such appointed agents may be either persons or corporations; to admit persons to membership in the association, and to expel any member pursuant to the pro- visions of its by-laws; to forfeit the membership of any member for violation of any agreement between him and the association, or for his violation of its by-laws. 2. To purchase or otherwise acquire, hold, own, sell and otherwise dispose of any and every kind or kinds of real and personal property necessary to carry on its business, and to acquire by purchase or otherwise the interest of any member in the property of the association. 3. Upon the written assent or by a vote of members repre- senting two-thirds of the total votes of all members to co- operate with any other co-operative corporation or corpora- tions for the co-operative and moi-e economical carrying on of their respective business, by consolidation as provided in section six hundred and fifty-three i of this code, whereupon the effect of such consolidation shall be the same as declared in said section; or upon resolution, adopted by its board of directors, to enter into all necessary and proper con- tracts and agreements, and to make all necessary and proper stipulations and arrangements with any other co-operative corporation or corporations for the co-operative and more economical carrying on of its business, or any part or parts thereof; or any two or more co-operative corporations organ- ized under this title, upon resolutions, adopted by their respective board of directors, may, for the purpose of more economically carrying on their respective businesses, by agreement between them, unite in employing and using, or several associations may separately employ and use, the same methods, means and agencies, for carrying on and conducting their respective businesses. 4. Any association formed or consolidated under this title may be dissolved and its affairs wound up voluntarily by the written request of members representing two-thirds of the total votes, in the manner and with the effect provided 466 Tit.XXI.] AMENDED ARTICLES. § 653r in section six hundred and fifty-three j of this code, except that the moneys remaining after liquidation shall be divided among the members in proportion to their property interests therein. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 19. §6o3r. AME>DME>T TO ARTICLES OF INCORPORA- TION. Any corporation, whether stock or membership, here- tofore incorporated under the laws of this state for the pur- pose of engaging in and carrying on the business specified in section six hundred and fifty-three in of this title, the stockholders or members of which would be entitled to- incorporate under the provisions of this title, may, by the unanimous written assent or vote of all the stockholders or members, amend its articles of incorporation to conform to the provisions of this title in the manner and with the effect provided in section three hundred and sixty-two of the Civil Code, and from the time of filing the amended articles, such corporation shall have the same powers as if it had originally incorporated under the provisions of this title; provided, however, that the debts, obligations, and other liabilities against such corporation or against the members or the stockholders thereof, existing at the time of such amendment, shall not be discharged or their collection or enforcement otherwise impaired; and provided further that the respective property interests of the several stock- holders by virtue of their ownership of shares of stock therein, or the several members by virtue of their membership therein, and also the voting power of each of them, shall be determined and fixed by the amended articles of incorpora- tion in accordance with the provisions of subdivision six of section six hundred and fifty-three o, but which rights shall be subject to the right of the association to admit new members. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 19. 467 § 653s CIVIL CODE. [Div.I,Pt.IV. § 6o3s. QUO WARRANTO. The right of an association claiming to be organized and incorporated and carrying on its business under this title, to do and to continue its busi- ness, may be inquired into by quo warranto at the suit of the attorney general, but not otherwise. History: Enacted February 12, 1909. Stats, and Amdts. 1909, p. 20. 468 Tit.XXII.] NON-PROFIT CORPORATIONS. §§ 653t, 653u TITLE XXII. NON-PROFIT CO-OPERATIVE CORPORATIONS. [A new title to be known a.s title XXII of part IV of division first is hereby added, to read as follows:] § 653t. Formation and purposes of. § 653u. Membership. § 653v. Articles of incorporation. § 653w. By-laws. § 653x. Powers of corporation. § 653y. Amendments of articles of incorporation. § 653z. Quo warranto. § 653za. Particular corporations. § 653zb. Voting-. §653t. FOEMATION AND PURPOSE OF. Non-profit co- operative corporations may be formed by the voluntary asso- ciation of any tliree or more persons in the manner prescribed in this title. A majority of such persons must be residents of this state, and such corporation shall have and may exer- cise the powers authorized by this title, and the powers neces- sarily incident thereto, and also all other powers granted to private corporations by the laws of this state, excepting such powers as are inconsistent with those granted by this title. History: Enacted April 13, 1909, Stats, and Amdts. 1909. p. 854. §653n. MEMBEKSHIP. Such corporation shall not have a capital stock, and its business shall not be carried on for profit. Any person or any number of persons including and in addition to the original incorporators, may become mem- bers of such corporation upon such terms and conditions as to membership, and subject to such rules and regulations as to their, and each of their, contract and other rights and liabilities between it and the member, as the said corporation shall prescribe in its by-laws. The corporation shall issue a certificate of membership to each member, but the said mem- bership, or the said certificate thereof, shall not, except as herein provided, be assigned by any member to any other per- 469 § 653v CIVIL CODE. [Div.I.Pt.IV. son, nor shall the assigns thereof be entitled to membership in the corporation, or to any property rights or interest therein, nor shall a purchaser at execution sale, or any other person who may succeed, by operation of law or otherwise, to the property interests of a member, be entitled to membership, or become a member of the corporation by virtue of such transfer. The board of directors may, however, by motion duly adopted by it, consent to such assignment or transfer, and to the acceptance of the assignee or transferee as a member of the corporation. The corporation shall also have the right, by its by-laws, to provide for or against the transfer of member- ship and for or against the assignment of membership certifi- cates, and also the terms and conditions upon which any such transfer or assignment shall be allowed. History: Enacted April 13, 1909, Stats, and Amdt.s. 1909, p. 854. §653v. ARTICLES OF IXORPORATION. Each corpora- tion formed under this title must prepare and file articles of incorporation in writing setting forth: 1. The name of the corporation. 2. The purpose for which it is formed. 3. The place where its principal business will be transacted. 4. The term for which it is to exist, not exceeding fifty years. .5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted office. 6. Whether the voting power and the property rights and interest of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules applicable to all members by which the voting power and the property rights and interests, respectively, of each mem- ber may and shall be determined and fixed, but the corpora- tion shall have power to admit new members who shall be entitled to vote and to share in the property of the corpora- 470 TltXXII.] BY-LAWS— PROVISIONS. § 653w tion with the old members, in accordance with such general rule. 7. Said articles of incorporation shall be subscribed by three or more of the original members, a majority of whom must be residents of this state, and acknowledged by each before some officer authorized to take and certify acknowledg- ments of conveyances of real property, and shall be filed in all respects in accordance with the provisions of section two hundred and ninety-six of this code, and thereupon the secre- tary of state shall 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 signing the articles and their associates and successors shall be a body politic and corporate by the name stated in the certificate. When so filed, the said articles of incorporation or certified copies thereof shall be received in all the courts of this state, and other places, as prima facie evidence of the facts contained therein. History: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 855. § 653w. BY-LA">VS. Each corporation incorporated under this title must, within one month after filing articles of incor- poration, adopt a code of by-laws for its government and management not inconsistent with the provisions of this title. A majority vote of the members or the written assent of mem- bers representing a majority of the votes is necessary to adopt such by-laws. The provisions of section three hundred and three and three hundred and four of this code, which are not inconsistent with the provisions of this title, shall apply to the by-laws of the corporation provided for in this title. Each corporation organized hereunder may also, by its by-laws adopted as aforesaid, provide for the following matters: 1. The manner of removal of any one or more of its direc- tors and of filling any and all vacancies in the board of direc- tors. 2. The conditions upon which and the time when member- 471 § 653x CIVIL CODE. [Div.I.Pt.IV. ship of any member in the corporation shall cease; the mode, manner and effect of expulsion of a member, subject to the right of the expelled member to have the board of directors equitably appraise his property interests in the corporation and to fix the amount thereof in money, and to have the money paid to him within sixty days after such expulsion. 3. The amount of membership fee, if any, and the amount which 6ach member shall be required to pay annually, or from time to time, if at all, to carry on the business of the corpora- tion, and also the compensation, if any, to be paid by each member for any services rendered by the corporation to him, and the time of payment and the manner of collecting the same, and may provide for forfeiture of the interest of the member in the corporation for non-payment of the same. 4. The number and qualifications of members of the cor- poration and the conditions precedent to membership and the method, time and manner of permitting members to withdraw, and providing for the assignment and transfer of the interest of members, and the manner of determining the value of such interest and providing for the purchase of such interest by the corporation upon the death, withdrawal or expulsion of a member or upon the forfeiture of his membership, at the option of the corporation. History: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 855. §653x. POWEKS OF CORPORATION. Each corporation incorporated under this title shall have the powers granted by the provisions of this code and other laws of California, relating to private corporations, which are not inconsistent with those granted by this title, and shall also have the fol- lowing powers: 1. To appoint such agents and officers as its business may require, and such appointed agents may be either persons or corporations; to admit persons and corporations to mem- bership in the corporation, and to expel any member pursuant to the provisions of its by-laws; to forfeit the membership of any member for violation of any agreement between him and the corporation or for his violation of its by-laws. 472 Tit.XXII.] POWERS— LAWS. § 653x 2. To purchase, lease or otherwise acquire, hold, own and enjoy, to sell, lease, mortgage and otherwise encumber and dispose of any and all and every kind or kinds of real and personal property, also to carry on any and all operations necessary or convenient in connection with the transaction of any of its business. 3. Upon the written assent of two-thirds of all the members or by a vote of members representing two-thirds of the total votes of all members of each of two or more such non-profit co-operative corporations to co-operate with each other for the more economical carrying on of their respective businesses by consolidation as provided in section six hundred and fifty- three i of this code, such consolidation shall be effected, and thereupon the effect of such consolidation shall be the same as declared in said section. Any such corporation upon reso- lution, adopted by its board of directors, shall have the power to enter into contracts and agreements, and to make stipula- tions and arrangements with any other corporation or cor- porations for the co-operative and more economical carrying on of its business, or any part or parts thereof; or any two or more co-operative corporations organized under this title, upon resolutions adopted by their respective boards of direc- tors, may, for the purpose of more economically carrying on their respective businesses, by agreement, unite in adopting, employing and using, or several such corporations may sep- arately adopt, employ and use the same methods, policy, means, agents, agencies and terms of marketing for carrying on and conducting their respective businesses. 4. Any corporation formed or consolidated under this title may be dissolved, and its affairs wound up voluntarily by the written consent of members representing two-thirds of the total votes, in the manner and with the effect provided in sec- tion six hundred and fifty three j of this code, except that any property remaining after liquidation shall be divided among the members in proportion to their respective property inter- ests therein. History: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 856. 473 §§ 653y-653zb CIVIL CODE. [Div.I.Pt.IV. §653y. AMENDMENT OF ARTICLES OF INCORPORA- TIOX. Any such corporation may amend its articles of incor- poration in any manner not inconsistent with the provisions of this title, in the manner provided for by section three hun- dred and sixty-two of the Civil Code of this state. History: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 857. §653z. QUO WARRAJiTO. The right of a corporation claiming to be organized and incorporated and carrying on its business under this title, to do and to continue its busi- ness, may be inquired into by quo warranto proceedings at the suit of the attorney-general, but not otherwise. IIi.««tury: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 857. §653za. PARTICULAR CORPORATIONS. This title is not applicable to railroads, telegraph, telephone, banking, insur- ance, building and loan, or any other corporation, unless the special provisions of this code applicable thereto are com- plied with. History: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 857. § 653zl). VOTING. In the event the by-laws shall provide for unequal voting power, or unequal property rights of the several members, or both, the provisions of this title with reference to a majority, a two-thirds, or other vote of the members, shall not apply, and in lieu thereof, there shall be substituted a majority, or a two-thirds of the votes of the interests represented by the several members, or otherwise as the case may be. History: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 857. 474 DIVISION SECOND. Part I. Property in General, §§ 654-749. II. Real or Immovable Property, §§ 755-940. III. Personal or Movable Property, §§ 946-995. IV. Acquisition of Property, §§ 1000-1425. 475 Tit.I.] PROPERTY— NATURE OP. § 554 PART I. PROPERTY IN GENERAL. Title I. Nature of Property, §§ 654-663. II. Ownership, §§ 669-742. III. General Definitions, §§ 748, 749. TITLE I. NATURE OP PROPERTY. § 654. Property, what. § 655. In what property may exist. § 656. Wild animals. § 657. Real and personal. § 658. Real property. § 659. Land. § 660. Fixtures. § 661. Fixtures attached to mines. § 662. Appurtenances. § 663. Personal property. § 654. PROPERTY, WHAT. The ownership of a thing 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for IS pars, annotation. 109 C. 29, 37, 39, 41 P. 1024 (construed and applied); 116 C 339, 343, 58 A. S. 170, 48 P. 228, 36 L. 497 (referred to in discus- sion); 126 C. 112. 119, 58 P. 462, 45 L. 788 (construed and applied); 131 C. 294, 307, 308, 63 P. 470 (construed and applied); 1 C. A. 511, 513, 82 P. 562 (cited). Alienation of, restraint upon. — See 57 A. D. 488. As to mine being- real property, see Kerr's Cyc. C C « 1091 and note par. 10. As to nature of right of property.— See 40 Cent. Dig. col. ^"17, § 1. Assault in recapture of. — See 14 L. 317. Conditions and restrictions respecting use, validity of.— See "5 A. S. 214. 477 § 655 CIVIL CODE. [Div.II.Pt.I. Consent to transfer of. — See 5 L. 340. ]:>eflnition of property. — See 6 W. & P. 593. Franchise as property, and sale under execution. — See Kerr's Cyc. C. C. § 388 and note. Gambling device as property within constitutional protec- tion. — See 12 L. N. S. 394. Good will of business. — See 6 W. & P. 5710. Gross-receipts of railroad. — See 6 W. & P. 5711. Human life not included. — See 6 W. & P. 5712. In product of skill and labor, distinction between common law rig-ht and copy rig-ht. — See 11 L. 267. In secret. — See 13 L. 652. Invention and patent right. — See 6 W. & P. 5713. Knowledge as. — See 6 W. & P. 5714. Labor as. — See 6 W. & P. 5715. Limitation of right to use one's own property. — See 9 L. 711. Loss of right of. — See 40 Cent. Dig. col. 2926, § 10. Ownership of and incidence thereof. — See 40 Cent. Dig. col. 2924, § 9. "Property" as used in the fifteenth amendment to the con- stitution is a representative term and with the terms "life," "liberty," covers every right to which a member of the body politic is entitled under the law. — See 50 A. S. 443; 29 L. 257; 6 W. & P. 5693. Property is numen generalissimum and extends to every species of valuable right and interest, including real and per- sonal property, easements, franchises, and incorporeal heredita- ments. — See 6 W. & P. 5693. Property right in market quotations. — See 7 L. N. S. 889. Real property — As to what constitutes, see Kerr's Cyc. C. C. § 658 and note; 7 W. & P. 5939-5951. Ilight to use and improve. — See 6 L. 449; 8 L. 808. Stolen title acquired by bona fide purchaser. — See 13 A. S. 977. What law governs. — See 40 Cent. Dig. col. 2919, § 3. "When passes in vessel or other article to be built or manu- factured. — See 62 A. D. 65. §655. IN WHAT PKOPERTY MAY EXIST. There may be ownership of all luauimate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the good-will of a business, trade- marks and signs, and of rights created or granted by statute. History: Enacted March 21, 1872. 478 II Tit.L] WILD ANIMALS. § 656 See Kerr's Cyc. C. C. for 35 pars, annotation. 126 C. 112, 119, 58 P. 462, 45 L. 788 (applied); 133 C. 69, 71, 65 P. 142 (referred to); 149 C. 575, 598, 87 P. 102 (cited in'con. op. of Henshaw, J. — g-ood will of business as property); 1 C. A. 511, 513, 82 P. 562 (cited). As to disinterment. — See 42 L. 721-738. As to larceny of dogs. — See Kerr's Cyc. Pen. C. § 484 and note. As to rig'ht of burial. — See 14 L. 85. As to right of control and disposition of dead bodies. — See 14 L. 85. Good will as property, and what it includes. — See Kerr's Cyc. C. C. § 993 and note. In what property may exist — As to generally. — See 40 Cent. Dig. col. 2918, § 2. Same — Buildings and other structures. — See 40 Cent. Dig. col. 922, § 5. Same — Pews. — See 40 Cent. Dig. col. 922, § 6. Mining claims as property. — See Kerr's Cyc. C. C. § 654 and note pars. 5, 11. Products of mind, how far subjects of property or ownership. — See Kerr's Cyc. C. C. § 980 and note. Trade-marks as property, and how far may be appropriated. — See Kerr's Cyc. C. C. § 991 and note; Kerr's Pocket Pol. C. § 3196. Wild animals — As subjects of property, and as to when private proprietary rights attach.- — See Kerr's Cyc. C. C. § 656 and note; 2 Cent. Dig. col. 425, §§ 3, 4. § 656. WILD ANIMALS. 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 possession, or disabled and immediately pursued. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 30 pars, annotation. 108 C. 240, 244 (erroneously cited for § 656 C. C. P.), 41 P. 299 (correct citation); 114 C. 378, 388, 55 A. S. 74, 46 P. 166 (con- strued and applied); 119 C. 315, 321, 322, 51 P. 684 (construed and applied); 136 C. 527, 531, 89 A. S. 177, 69 P. 261 (construed). As to fish and the right to fish. — See 60 L. 481-521. As to right to hunt, and ownership of game killed or taken on such land.— See 13 A. S. 416-420; 23 A. S. 641. As to wild animals and bees, see 2 Cent. Dig. col. 425. §§ 3, 4. Game laws — As to. — See 42 A. S. 138, 144. Same — As affecting interstate commerce. — See 13 L. 804. Piscatory rights, as to. — See 60 L. 481-525. 479 § 657 CIVIL CODE. [Div.II.PtJ. §657. REAL AND PERSONAL. Property is either: 1. Real or immovable; or, 2. Personal or movable. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 113 C. 345, 353, 45 P. 680 (construed); 142 C. 529, 539, 76 P. 243 (distinction between freehold estates and estates for years). Crops as real or personal property. — See 15 Cent. Dig. col. 1120, §§ 2-4. Distinction between^ real and personal property — As to gener- ally, see 40 Cent. Dig. col. 2920, § 4. Same — Buildings and other structures. — See 40 Cent. Dig. col. 2922, § 5. Same — Conversion or change of form. — See 40 Cent. Dig. col. 2923, § 7. Same — Effect of severance of trees. — See 40 Cent. Dig. col. 2923, § 8. Same — Pews. — See 40 Cent. Dig. col. 2922, § 6. Estate for years as personal property. — See 32 Cent. Dig. col. 232, § 215. Incorporeal chattel. — See 4 W. & P. 3514. Nature of property — As bringing contract within statute of frauds.— See 23 Cent. Dig. col. 2086, §§116-118; col. 2135, §§143- 146. Same — In corporate stocks. — See 12 Cent. Dig. col. 268, § 166. Same — In minerals. — See 34 Cent. Dig. col. 3068, § 134. Personal property — As to what constitutes, and rights, see Kerr's Cyc. C. C. §§ 633, 953-990 and notes; 75 A. D. 592; 4 A. R. 81; 59 A. R. 400; 57 A. S. 347; 62 A. S. 436; 75 A. S. 168; 2 L. 350; 7 L. 448; 16 L. 729; 37 L. 384; 42 L. 826; 60 L. 476; 6 W. & P. 5346-5358. Same — Choses in action. — See 6 W. & P. 5352. Same — Claim ex contractu or ex delicto. — See 6 W. & P. 5352. Same — Claim for land taken under eminent domain. — See 6 W. & P. 5352. Same — Contents of safe. — See 6 W. & P. 5352. Same — Corporation stocks. — See 23 A. R. 460; 75 A. S. 168; 6 W. & P. 5352. Same — Credits. — See 6 W. & P. 5353. Same— Crops. — See 75 A. D. 592; 49 A. R. 821; 6 W. & P. 5353. Same — Deposit in bank. — See 6 W. & P. 5354. Same — Domestic animals, dog and hen. — See 6 W. & P. 5354. Same — Insurance policy. — See 6 W. & P. 5355. Same — Land certificate. — See 6 W. & P. 5355. Same — Land is when. — See 6 W. & P. 5355. 480 II \i Tit.I.] REAL PROPERTY, WHAT IS. § 658 Same^Leasehold estate for term of years. — See 6 W. & P. 5355. Same — Liquor tax certificate. — See 6 W. & P. 5356. Same — Membersliip in newspaper association. — See 6 W. & P. 5356. Same — Money. — See 29 A. R. 707; 37 L. 442; 6 W. & P. 5356. Same — Promissory note. — See 6 W. & P. 5356. Same — Property attached to realty. — See 6 W. & P. 5357. Same — Railroad track and superstructures. — See 6 W. & P. 5357. Same — Right to work. — See 6 W. & P. 5357. Same — Seat in stock exchang-e.— See 6 W. & P. 5357. Same— Ship. — See 96 A. S. 1000; 6 W. & P. 5357. Same — ^Timber is when. — See 6 W. & P. 5358. Same— Water mains and telegraph wires.— See 16 L. 506; 6 W. & P. 5358. Rule of descent dependent on whether property is personal or real. — See 16 Cent. Dig. col. 1376, § 79. What constitutes personal property available for payment of debts of decedent's estate. — See 2 Church's New Probate Law and Practice, §§1262, et seq.; 22 Cent. Dig. col. 1497, §1056. §658. KEAL PKOPERTY. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 60 C. 408, 410 (applied); 62 C. 182, 184 (applied); 77 C. 399, 402, 19 P. 689, 690 (applied); 80 C. 245, 250, 22 P. 184, 185 (applied): 86 C. 335, 338, 24 P. 993, 994 (applied); 109 C. 29, 36, 41 P. 1024 (continuous flow of water on land is real property); 118 C. 635, 636, 50 P. 683 (applied); 126 C. 600, 605, 59 P. 130 (applied); 138 C. 583, 586, 72 P. 171 (applied); 140 C. 183, 187, 73 P. 826. 827 (applied); 142 C. 529, 539, 76 P. 243 (distinction between freehold estates and estates for years); 144 C. 450, 454, 77 P. 1032 (water as real property); 147 C. 1, 7, 109 A. S. 107, 81 P. 121 (timber as part of realty); 147 C. 351, 354, 81 P. 1012, 1 L. N. S. 1192, 3 A. C. 330 (fixtures attached by lessee to leasehold property as part of realty). Appurtenances as to. — See Kerr's Cyc. C. C. § 662 and note; also note § 662 post. Kerr's C. C— 16 481 § 658 Civil. CODE. [Div.II.Pt.I. Fixtures, as to what are. — See note § 660 post. Incorporeal hereditaments. — See 4 W. & P. 3514. Incorporeal real property. — See 4 W. & P. 3515. Land, as to what is. — See note § 659 post. Real property — Any interest in land. — See 7 W. & P. 5947. Same — Buildings as. — See 7 W. & P. 5944. Same — Chattels real. — See 7 W. & P. 5945. Same — Coal before mining. — See 7 W. & P. 5945. Same — Dams and waterways. — See 7 W. & P. 5945. Same— Definition of. — See 7 W. & P. 5939. Same — Electric light wires and poles. — See 7 W. & P. 5945. Same — Equitable interest. — See 7 W. & P. 5945. Same — Equity of redemption. — See 7 W. & P. 5946. Same — Estate for years. — See 7 W. & P. 5945. Same — Fee simple title. — See 7 W. & P. 5946. Same — Fixtures. — See note § 660, post. Same — Franchise of corporation not. — See 7 W. & P. 5947. Same — Ground rents. — See 7 W. & P. 5947. Same — ^Growing trees. — See 7 W. & P. 5947. Same — Improvements. — See 7 W. & P. 5947. Same — Incorporeal hereditaments. — See 7 W. & P. 5947. Same — Interest of purchaser at execution sale. — See 7 W. & P. 5946. Same — Lands synonymous with. — See 7 W. & P. 5948. Same — Manure. — See 7 W. & P. 5948. Same — ^Mining claims. — See 7 W. & P. 5948. Same — Pier. — See 7 W. & P. 5948. Same — Pipe line. — See 7 W. & P. 5948. Same — Railwaj' property, houses, lands, etc. — See 7 W. & P. 5948. Same — Railway road bed. — See 7 W. & P. 5948. Same — Remainder. — See 7 W. & P. 5948. Same — Right of navigation not. — See 7 W. & P. 5950. Same— Room as. — See 31 A. D. 232; 7 W. & P. 5950. Same — Several tracks. — See 7 W. & P. 5950. Same — Street railway track. — See 7 W. & P. 5950. Same — Toll bridge.— See 7 W. & P. 5950. Same — Unlocated land certificates are not. — See 7 W. & P. 5950. Same — Vendor's lien. — See 7 W. & P. 5950. Same— Water and ice.— See 45 A. S. 240; 21 L. 333; 7 W. & P. 5951. Same — Water pipes and hydrant. — See 35 A. S. 371; 21 L. 525; 7 W. & P. 5951. Same — Water power. — See 7 W. & P. 5951. Same — Water works plant. — See 15 L. 205; 7 W. & P. 5951. 482 Tit.L] LAND— FIXTURES. §§ 659, 660 § 659. LAJfD. Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 3 pars, annotation. 118 C. 635, 636, 50 P. 683 (referred to Avith other sections in other discussion); 140 C. 183, 187, 73 P. 826, 827 (referred to); 142 C. 529, 539, 76 P. 243 (distinction between freehold estates and estates for years). Land — Bridge as. — See 6 W. & P. 3979. Same — Building- as. — See 6 W. & P. 3979. Same — Definition of. — See 22 A. D. 236; 16 A. R. 388; 5 W. & P. 3975. Same — Easements and incorporeal hereditaments as. — See 5 W. & P. 3981. Same — Franchise of corporation as. — See 5 W. & P. 3981. Same — Water and water power included in term.- — See 5 W. & P. 3984. § 660. FIXTURES. 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 embedded in it, as in the casfe of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 148 pars, annotation. 51 C. 594 (applied); 52 C. 385, 394, 395, 396, 28 A. R. 634 (applied); 70 C. 3, 6, 11 P. 320, 321 (applied); 77 C. 190, 191, 19 P. 277, 278 (applied); 80 C. 245, 250, 251, 13 A. S. 147, 22 P. 184, 185 (applied); 86 C. 335, 338, 24 P. 993, 994 (applied); 25 P. 688, 689; 91 C. 377, 379, 27 P. 750, 751, 13 L. 680 (construed); 118 C. 635, 636, 50 P. 683 (cited); 126 C. 600, 605, 59 P. 130 (applied); 138 C. 583, 586, 72 P. 171 (referred to in discussion); 139 C. 165, 167, 72 P. 905 (applied — wharf structures become vested in city when); 140 C. 183, 187, 73 P. 826, 827 (referred to with other sections); 142 C. 529, 539, 76 P. 243 (distinction between freehold estates and estates for years); 147 C. 1, 7, 109 A. S. 107, 81 P. 121 (timber as part of realty); 147 C. 351, 354, 81 P. 1012, 1 L. N. S. 1192, 3 A. C. 330 (fixtures attached by lessee to lease- hold property as part of realty). 483 § 660 CIVIL CODE. [Div.II.Pt.I. FIXTURES — GENERALLY. As to buildings being real estate. — See 16 L. 306. * As to character of estate in mining claim. — See Kerr's Cyc. C. C. § 654, note pars. 5-11. As to intention governing. — See 51 A. S. 633; 10 L. 722. As to mortgage on building on leased premises. — See 21 L,. 347. As to right of removal, as to generally. — See 21 A. R. 80; 13 L. 680;.- 38 L. 628. Same — By mortgagor. — See Kerr's Cyc. C. C. § 660, note pars. 46, 47. Same — By tenant. — See Kerr's Cyc. C. C. § 660, pars. 35-38. Same — By vendee. — See Kerr's Cyc. C. C. § 660, note pars. 57-59. As to what are, see 14 A. D. 303; 17 A. D. 686; 24 A. D. 726, 5 K 150; 5 L. 594; 6 L. 249; 10 L. 722. Agreement to prevent fixtures from becoming part of realty. — See 19 L. 441. Annexation. — See 11 L. 510; 3 W. & P. 2833. As betvpeen — Landlord and tenant. — See 10 L. 723. Same — Mortgagor and mortgagee. — See 1 L. 350; 10 L. 725. Same — Representatives and heirs. — See 10 L. 721. Same — Vendor and vendee. — See 10 L. 724. Belonging to soil, as to. — See 11 L. 727. Character as fixtures or personalty, before annexation, of articles brought on premises to be annexed. — See 4 A. C. 1160. Cistern as.— See 3 W. & P. 2841. Consent of owner to remove. — See 3 W. & P. 2836. Definition of. — See 69 L. 892; 3 W. «fe P. 2832-2846. Design or intention. — See 93 A. D. 299; 3 W. & P. 2836. Effect of renewing tenancy without reservation of riglit to remove.— See 1 L. N. S. 1192. Efficacy of chattel mortgage on. — See 15 L. 56. Engine as fixture when placed upon land by owner of realty. — See 8 L. N. S. 376. Fastened to building, as to method and effect of. — See 44 L. 559. Fixing character of property as realty or personalty by agree- ment. — See 1 A. C. 312. Floating dock not a. — See 3 W. & P. 2841. Furniture is when.— See 92 A. D. 766; 3 W. & P. 2842. Gas — Fittings and mirrors, are when. — See 29 A. R. 403; 37 A. R. 472. Same — Pipes and other appliances when are. — See 34 A. R. 354; 37 A. R. 472. Intention as criterion. — See 3 L. 34. Machinery — Becomes when. — See 11 A. R. 314. Same— Is when.— See 10 L. 724; 3 W^. & P. 2843. 484 II i Tit.I.] APPURTENANCES. |§ 661, 662 Manure as. — See 14 A. D. 397. Mirrors as personalty or realty. — See 1 A. C. 6S7. Mortgagee's right of action against third person removing. — See 13 A. S. 153. ■ New lease — As affecting right to remove. — See 3 A. C. 331. i^ Same — As implied surrender of right to remove fixtures under I old lease. — See 1 L. N. S. 1193. Removal by tenant in violation of covenant to leaving prem- ises in good condition. — See 64 L. 662. Right — As between life tenant and remainderman. — See 2 A. C. 405. Same — Of lessee under mining lease to remove machinery and other appliances. — See 2 A. C. 738. Same — Of person claiming under tenant as to time for removal of fixtures. — See 10 A. C. 109. Tenant may remove when. — See 11 A. D. 241. Tenant's right as to. — See 1 L. N. S. 1192; 3 L. N. S. 69. Trade fixtures and removal of. — See 3 W. & P. 2845. When and against whom may retain the character of personal property. — See 84 A. S. 877. Whether personal property. — See 29 A. R. 407. § 661. FIXTURES ATTACHED TO MIIVES. Sluice boxes, flumes, hose, pipes, railway tracks, cars, blacksmith-shops, mills, and all other machinery or tools used in working or developing a mine, are to be deemed affixed to the mine. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 76 C. 578, 582, 583, 585, 18 P. 772, 774 (applied, cited, and con- strued) ; 80 C. 510, 512, 22 P. 217, 218 (applied— lien in favor of material-man); 102 C. 134, 142, 34 P. 702, 36 P. 388 (applied and construed); 118 C. 148, 153, 50 P. 378 (construed); 118 C. 635, 636, 50 P. 683 (cited); 142 C. 529. 539, 76 P. 243 (distinction between freehold estates and estates for years). § 662. APPURTEIVANCES. A thing is deemed to be inci- dental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or water- course, or of a passage for light, air, or heat from or across the land of another. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 53 pars, annotation. 52 C. 385, 395, 396, 28 A. R. 634 (applied); 56 C. 11, 13 (applied); 485 § 663 CIVIL CODE. [Div.II.Pt.I. 62 C. 182, 184, 185, 186, 45 A. R. 659 (applied); 67 C. 493, 497, 8 P. 29 (applied); 77 C. 399, 402, 403, 19 P. 689 (applied); 79 C. 587, 590, 21 P. 1099, 1100 (applied) ; 80 C. 310, 315, 316, 22 P. 178, 179 (applied); 86 C. 335. 338, 24 P. 993, 994 (cited in discussion); 91 C. 146, 155, 27 P. 543, 546 (applied); 91 C. 187, 190, 27 P. 587, 588 (applied); 93 C. 365, 368, 370, 28 P. 953, 954 (construed); 109 C. 29, 36, 41 P. 1024 (applied — continuous flow of water on land is real property); 110 C. 582, 585, 42 P. 1091 (construed); 43 P. 611, 612 (construed); 120 C. 488, 490, 493. 52 P. 843, 40 L. 476 (applied); 140 C. 183, 187, 73 P. 826, 827 (referred to); 142 C. 529, 539, 76 P. 243 (distinction between freehold estates and estates for years); 146 C. 398, 400, 81 P. 542 (cited — appurtenance is question of fact — shares of stock as appurtenance); 146 C. 435, 440, 80 P. 623 (applied — extension of ditch as appurtenance); 150 C. 426, 432, 88 P. 1094 (applied to water-right); 4 C. A. 18, 24, 87 P. 213 (applied — water ditch-easement). Appurtenant easements. — See 2 L. 285; 14 L. 300. Articles that will pass as appurtenances upon sale of chattels. — See 8 L. N. S. 793. Corporeal appurtenances to realty. — See 15 L. 652. Land-owner's right to percolating waters. — See 99 A. S. 66-75; 64 L. 236-239. What are appurtenances. — See 13 A. D. 657; 40 A. R. 381; 81 A. S. 764. What articles will pass as appurtenances upon sale of chattels. —See 8 L. N. S. 793. §663. PERSONAL PROPERTY. Every kind of property that is not real is personal. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 57 C. 254, 255 (construed and applied); 113 C. 345, 353, 45 P. 680 (referred to); 142 C. 529, 539, 76 P. 243 (distinction between freehold estates and estates for years); 1 C. A. 511, 513, 82 P. 562 (cited). As to fructus industriales, see 1 Kerr's Benjamine on Sales 111, note 2. As to right of landlord where rent received in part of crop, see 37 A. D. 321; 14 A. S. 166. As to what constitutes personal property, see Kerr's Cyc. C. C. §14 subd. 3 and note; also Kerr's Cyc. Pol. C. §3617 and note; 6 W. & P. 5346-5358. 486 Titll.ch.I.] PROPERTY OP STATE. §§ 669, 670 TITLE II. OWNERSHIP. Chapter I. Owners, §§ 669-672. II. Modifications of Ownership, §§ 678-726. III. Rights of Ownership, §§ 732, 733. IV. Termination of Ownership, §§ 739-742. CHAPTER I. OWNERS. § 669. Owner. § 670. Property of the state. § 671. Wlio may own property. § 672. Aliens inheriting must claim within five years. § 669. OWNER. All property has an owner, whether that owner Is the state, and the property public, or the owner an individual, and the property private. The state may also hold property as a private proprietor. History: Enacted March 21, 1872. 73 C. 99, 102, 14 P. 394, 396 (cited in discussion with other sections). Definition of owner. — See 91 A. S. 331; 8 L. 147; 15 K 263; 6 W. & P. 5134. §670. PROPERTY OF THE STATE. The state is the owner of all land below tide-water, and below ordinary high- water mark, bordering upon tide-water within the state; of all land below the water of a navigable lake or stream; of all property lawfully appropriated by it to its own use; of all property dedicated to the state; and of all property of which there is no other owner. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 217. See Kerr's Cyc. C. C. for 6 pars, annotation. 62 C. 250, 259 (applied); 69 C. 122, 126, 127, 10 P. 323, 326 487 §§ 671, 672 CIVIL CODE. [Div.II.Pt.I. (applied); 70 C. 206, 209, 11 P. 695, 696 (applied); 138 C. 552, 558, 94 A. S. 70, 71 P. 707 (applied); 148 C. 55, 56, 82 P. 672, 2 L. N. S. 643 (applied — non-resident aliens — contest, by state, of probate of will); 147 U. S. 695, 698, 37 L. ed. 335, 336 (erroneously cited for § 670 C. C. P.). § 671. WHO MAY OWN PEOPERTY. Any person, whether citizen or alien, may take, hold, and dispose of property, real or personal, within this state. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 218. See Kerr's Cyc. C. C. for 23 pars, annotation. 65 C. 593, 594, 595, 4 P. 639, 640 (construed and applied); 67 C. 380, 382, 7 P. 763 (applied); 67 C. 385, 386, 7 P. 766 (applied); 70 C. 153, 155, 156, 12 P. 121, 123 (cited); 76 C. 294, 296, 18 P. 407, 408 (cited); 127 C. 431, 434, 435, 436, 437. 59 P. 787 (applied); 180 U. S. 333, 336, 45 L. ed. 557, 560 (cited). As to right of alien to inherit. — See Kerr's Cyc. C. C. § 1404 and note; 1 Church's New Probate Law and Practice 38, 52; also note § 672, post. .§672. ALIENS INHERITING MUST CLAIM WITHIN FIVE YEARS. If a non-resident alien takes by succession, he must appear and claim the property within five years from the time of succession, or be barred. The property in such case is disposed of as provided in title eight, part three, Code of Civil Procedure. History: Enacted March 21, 1872; repealed by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 391, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 9 pars, annotation. 65 C. 593, 594, 4 P. 639, 640 (cited); 67 C. 380, 383, 384, 7 P. 763, 764 (construed and applied); 67 C. 385, 386, 7 P. 766 (construed); 70 C. 153, 156, 157, 12 P. 121, 123 (construed); 143 C. 135, 140, 76 P. 962 (property of non-resident aliens, how disposed of); 143 C. 194, 197, 198, 76 P. 968 (property of non-resident aliens, how disposed of); 148 C. 55, 56, 82 P. 672, 2 L. N. S. 643 (applied- contest, by state, of probate of will); 149 C. 208, 210, 85 P. 609 (applied); 180 U. S. 333, 336, 45 L. ed. 557, 560* (cited). As to inheritance by alien. — See Kerr's Cyc. C. C. § 1404 and note; 1 Church's New Probate Law and Practice 38, 52. Effect of naturalization upon alien's right to inherit. — See 31 L. 181. 488 Tit.II.ch.I.] CLAIMING BY ALIENS. §672 Effect of state statute and constitution upon inheritance through alien. — See 31 L. 146. Effect of treatise upon alien's right to inherit.— See 32 L. 177. Power of aliens to hold land. — See 14 A. D. 97. Rig-ht of alien to inherit— As to generally.— See Kerr's Cyc C. C. §1304 and note; 1 Church's New Probate Law and Prac- tice, 38, 52. Same — Right to receive or transmit. — See 12 A. S. 93; 31 L. 177. Who are aliens. — See 84 A. D. 210; 1 W. & P. 299. 489 § 678 CIVIL CODE. [Div.II,Pt.I. CHAPTER II. MODIFICATIONS OF OWNERSHIP. Article I. Interests in Property, §§ 678-703. II. Conditions of Ownersliip, §§ 707-711. III. Restraints upon Alienations, §§ 715-718. IV. Accumulations, §§ 722-726. ARTICLE I, INTERESTS IN PROPERTY. § 678. Ownership, absolute or qualified. § 679. When absolute. § 680. When qualified. § 681. Several ownership, what. § 682. Ownership of several persons. § 683. Joint interest, what. § 684. Partnership interest, what. § 685. Interest in common, what. § 686. What interests are in common. § 687. Community property. § 688. Interests as to time. § 689. Present interest, what. § 690. Future interest, what. § 691. Perpetual interest, what. § 692. Limited interest, what. § 693. Kinds of future interests. § 694. Vested interests. § 695. Contingent interests. § 696. Two or more future interests. § 697. Certain future interests not to be void. s 698. Posthumous children. I 699. Qualities of expectant estates. § 700. Same. [Mere possibility not an interest.] § 701. Interests in real property. § 702. Same. [Names and classification of interests.] § 703. What future interests are recognized. §678. OWNERSHIP, ABSOLUTE OR QUALIFIED. The ownersliip of property is either: 1. Absolute; or, 2. Qualified. History: Enacted March 21, 1872. 490 Tit.II,ch.II,art.I.] OWNERSHIP, qualities. §§679-682 See Kerr's Cyc. C. C. for 7 pars, annotation. 107 C. 410, 420, 40 P. 552 (construed and applied with other sections); 116 C. 339, 345, 58 A. S. 170, 48 P. 228, 36 L. 497 (con- strued and applied with other sections); 131 C. 294, 307, 63 P. 470 (applied). § 679. WHEN ABSOLUTE. The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleas- ure, subject only to general laws. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 105 C. 467, 470, 38 P. 1109 (construed and applied); 106 C. 673, 680, 39 P. 1071 (construed and applied with other sections); 109 C. 552, 555, 42 P. 448 (construed and applied); 112 C. 387, 399. 44 P. 734 (construed and applied in connection with other sec- tions); 116 C. 339, 345, 58 A. S. 170, 48 P. 228, 36 L. 497 (con- strued and applied). § 680. WHEN QUALIFIED. The ownership of property is qualified: 1. When it is shared with one or more persons; 2. When the time of enjoyment is deferred or limited; 3. When the use is restricted. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 107 C. 410, 420, 40 P. 552 (construed and applied with other sections); 112 C. 387, 399, 44 P. 734 (construed and applied with other sections); 116 C. 339, 345, 58 A. S. 170, 48 P. 228, 36 L. 497 (construed and applied); 133 C. 420, 422, 65 P. 952 (construed and applied with other sections); 150 C. 177, 178, 88 P. 706 (allegation of ownership in fee, what is). §681. SETERAL OWNERSHIP, WHAT. The ownership of property by a single person is designated as a sole or several ownership. Hi.story: Enacted March 21, 1872. § 682. OWNERSHIP OF SEVERAL PERSONS. The owner- ship of property by several persons is either: 1. Of joint interests; 491 §§ 683, 684 CIVIL CODE. [Div.II,Pt.I. 2. Of partnership interests; 3. Of interests in common; 4. Of community interest of husband and wife. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 391. held unconstitutional, see history, § 4 ante. See vKerr's Cyc. C. C. for 6 pars, annotation. 112 C. 387, 399, 44 P. 734 (construed and applied); 116 C. 339. 342, 58 A. S. 170, 48 P. 228, 36 L. 497 (construed with §687); 136 C. 460, 463, 69 P. 83 (applied). §683. JOI>'T INTEREST, WHAT. A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 391, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 36 pars, annotation. 127 C. 142, 149, 78 A. S. 35, 59 P. 390 (construed and applied); 141 C. 432, 435, 75 P. 53 (applied); 3 C. A. 583, 590, 86 P. 825 (this section applies to all kinds of property). As to deposit in bank in joint names becoming gift to survivor, see 51 A. S. 476. As to joint account in savings bank, see 31 L. 454, 455. As to what is a joint tenancy, see 22 L. 42. § 684. PARTNERSHIP INTEREST, WHAT. A partnership interest is one owned by several persons, in partnership, for partnership purposes. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 52 pars, annotation. 65 C. 46, 48, 2 P. 880 (construed and applied); 102 C. 384. 386, 36 P. 665 (construed and applied). As to mining partnerships, their nature and constitution, and who are partners therein, see 83 A. D. 104-111. As to partnership in real estate, see 47 A. D. 320. 60 A. D. 539, 98 A. D. 197, 201, 8 L. 657. As to validity of parol partnerships for dealing in land, see 16 L. 745-750. 492 Tit.II,ch.II,art.I.] interest in common. §§ 685, 686 As to when real estate will be considered partnership prop- ertj', see 27 L. 449-497. Effect of deed conveying- realty to partnership in firm name. — See 4 A. C. 604. Realty held by partnership, deceased partner's interest in. — See 27 A. D. 454. Validity of deed to partnership. — See 1 L. N. S. 157. What constitutes a partnership to deal in real estate. — See 5 L. N. S. 503. When real estate considered as partnership property — As to, generally, see 27 L. 449-496. §685. INTEEEST IN COMMON, WHAT. An interest in common is one owned by several persons, not in joint own- ership or partnership. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 284 pars, annotation. 141 C. 432, 435, 75 P. 53 (construed and applied). As to action by one cotenant against another for rents and profits, see 14 A. D. 586. As to action in assumpsit by one cotenant against another, see 14 A. D. 587. As to adverse claim by payment of taxes by cotenant. see 2 L. 172, 9 L. 740, 10 L. 101. As to exclusive possession by one cotenant, see 12 L. 261-266. As to husband and wife as cotenants, see 30 L. 305. As to liability in common to action, see 12 L. 261-266. As to liability of cotenants to account for use and occupation, and rents and profits, see 28 L. 829, 77 A. D. 665, 668. As to right of tenant in common to crops, see 9 L. 625. As to right to levy on crops owned bv cotenants, see 23 L. 258, 260-263. As to tenancy by entireties, see 30 L. 305-335. Right of tenant in common who pays mortgage debt to enforce mortgage against cotenant. — See 10 A. C. 282. § 686. WHAT INTERESTS ARE IN COMMON. Every inter- est created in favor of several persons in their own right is an interest in common, unless acquired by them in partner- ship, for partnership purposes, or unless declared in its crea- tion to be a joint interest, as provided in section six hundred and eighty-three, or unless acquired as community property. History: Enacted March .21, 1872; amended by Code Com- mission, Act March 16. 1901, Stats, and Amdts. 1900-1, p. 391, held unconstitutional, see history, § 4 ante. 493 §§ 687-690 CIVIL CODE. [Div.II.Ptl. See Kerr's Cyc. C. C. for 10 pars, annotation. 141 C. 432, 43.5, 75 P. 53 (construed with other sections); 3 C. A. 583, 591, 86 P. 825, 828 (cited); 4 C. A. 276, 281, 87 P. 553 (cited). §687. COMMUNITY PEOPERTY. Community property is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 70 C. 282, 284, 11 P. 719, 720 (construed and applied); 116 C. 339, 342, 58 A. S. 170, 48 P. 228, 36 L. N. S. 497 (cited as to definition of community property); 3 C. A. 651, 655, 86 P. 978 (community property, the moment it becomes a valid homestead, ceases to be community property). As to community property and what it includes, its acquisition and transmutation, see Kerr's Cyc. C. C. § 164 and note; 1 Church's New Probate Law and Practice, 38, 42, 1729, 1732-1740. § 688. INTERESTS AS TO TIME. In respect to the time of enjoyment, an interest in property is either: 1. Present or future; and, 2. Perpetual or limited. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 107 C. 410, 420, 40 P. 552 (construed and applied with other sections). §689. PRESENT INTEREST, "WHAT. A present interest entitles the owner to the immediate possession of the property. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 107 C. 410, 420, 40 P. 552 (construed with § 690). §690. FUTURE INTEREST, \VHAT. A future interest entitles the owner to the possession of the property only at a future period. History: Enacted March 21, 1872. 494 Tit.II,ch.II,art.I.] INTERESTS, KINDS. §§ 691-694 See Kerr's Cyc. C. C. for 9 pars, annotation. 79 C. 613, 622, 22 P. 50, 52 (construed and applied)'; 104 C. 298, 301, 37 P. 1049 (construed and applied with other sections); 107 C. 410, 420, 40 P. 552 (construed and applied); 122 C. 626, 627, 55 P. 595 (construed and applied with other sections); 133 C. 420, 422, 65 P. 952 (construed and applied with other sections). As to estates, when vested and when contingent, see 1 L. 432-538, 3 L. 690-816, 9 L. 211, 12 L. 73. As to right of remaindermen on condemnation, see 21 L. 212-223. As to rule in Shelley's case affecting remainders, see 21 L. 212. §691. PERPETUAL INTEREST, WHAT. A perpetual interest has a duration equal to that of the property. History: Enacted March 21, 1872. §692. LIMITED INTEREST, WHAT. A limited interest has a duration less than that of the property. History: Enacted March 21, 1872. § 693. KINDS OF FUTURE INTERESTS. A future interest is either: 1. Vested; or, 2. Contingent. History: Enacted March 21, 1872. 150 C. 39, 50, 87 P. 1097 (in action for waste, plaintiff's interest, is not vested where it is only contingent). §694. VESTED INTERESTS. A future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of the property, upon the ceasing of the intermediate or prece- dent interest. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 23 pars, annotation. 73 C. 99, 102, 14 P. 394, 396 (construed and applied); 122 C. 626, 627, 55 P. 595 (construed and applied); 132 C. 523, 574, 578, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed and applied); 133 C. 420, 422, 65 P. 952 (construed with other sections); 136 C. 97, 106, 68 P. 494 (construed and applied). 495 §§ 695-698 CIVIL CODE. [Div.II,Pt.I. §695. CONTINGENT INTERESTS. A future interest is contingent, whilst tlie person in whom, or the event upon which, it is limited to take effect remains uncertain. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 120 C. 79, 84, 85, 52 P. 132 (construed and applied with other sections); 150 C. 39, 50, 87 P. 1097 (in action for waste, plaintiff's interest is not vested where it is only contingent). As to contingent remainders, their definition, classification, and principles relating to generally, see 24 Encyc. L. 395, 400. As to estates when vested and when contingent, see 1 L. 432, 538; 3 L. 690, 816; 9 L. 211. As to power to cut off contingent interests, see 19 L. 247. §696. TWO OR MORE FUTURE INTERESTS. Two or more future interests maj^ be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. • As to successive remainders or future estates to take effect in the alternative and in succession, see 24 Encyc. L. 417 (5) under improper and condemnable head "Double Contingency or Con- tingency with Double Aspect." § 697. CERTAIN FUTURE INTERESTS NOT TO BE VOID. A future interest is not void merely because of the improb- ability of the contingency on which it is limited to take effect. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to remoteness of contingency, see 24 Encyc. L. 402. Common-law doctrine. — Possibility upon which remainder is to depend must be common possibility, or potentia propinqua; e. g. death, or death without issue, or coverture; for potentia est duplex, remota et propinqua. — 2 Cruise's Dig. 272. § 698. POSTHUMOUS CHILDREN. When a future interest is limited to successors, heirs, issue, or children, posthumous 496 Tit.II,ch.II,art.I.] expectant estates. §§ 699, 700 children are entitled to take in the same manner as if living at the death of their parents. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. As to rig-hts of after-born children not provided for in will, see 2 Church's New Probate Law and Practice, 1566, 1579. As to posthumous children defeating future interest, see for a full discussion and authorities, Kerr's Cyc. C. C. § 739 and note. As to posthumous children as grantees, see 44 L. 489. Child en ventre sa mere — When regarded as in being. — See 43 A. D. 472; also Kerr's Cyc. C. C. § 29, note pars. 59-63. Same — ^WVien gift to "children" includes. — See 7 A. C. 134. Same — Who is and property rights of. — See 19 A. S. 946. §699. QUALITIES OF EXPECTANT ESTATES. Future interests pass by succession, will, and transfer, in the same manner as present interests. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 28 pars, annotation. 104 C. 298, 301, 37 P. 1049 (construed and applied); 107 C. 410, 420, 40 P. 552 (construed and applied with other sections); 108 C. 627, 649, 49 A. S. 97, 41 P. 772 (construed and applied); 122 C. 626, 627, 55 P. 595 (construed and applied); 133 C. 420, 422, 65 P. 952 (construed and applied); 150 C. ' 39, 48, 87 P. 1097 (con- tingent estate is a species of property and may be transferred). As to devolution and transfer of estates in remainder, see 24 Encyc. L. 406. § 700. SAME. [MERE POSSIBILITY NOT AN INTEREST.] A mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 70 C. 282, 286, 11 P. 719, 721 (erroneously cited for § 700 C. C. P.) ; 104 C. 570, 584, 43 A. S. 134, 38 P. 414, 32 K 595 (construed with §1045 — these sections simply state common-law rule); 112 C. 387, 393, 44 P. 734 (construed and applied); 124 C. 43, 44, 56 P. 640 (construed and applied); 138 C. 355, 361, 70 P. 1076 (con- strued and applied with § 1045); 141 C. 366, 370, 74 P. 993 (con- strued and applied with § 1045). 497 §§ 701-703 CIVIL CODE. [Div.II.Pt.I. As to validity of sale of expectant estate by prospective heir, see 33 L. 266-287. As to validity of transactions between heir and his ancestor relating to the former's expectancy, see 32 L. 595, 602. § 701. INTERESTS I\ RE.VL PROPERTY.. In respect to real or immovable property, the interests mentioned in this chapter are denominated estates, and are specially named and classified in part two of this division. HiMtoryt Enacted March 21. 1872. Fur commissioners' comnifnt on the above section, see Kerr's Cyc. C. C. § 701, note. §70i>. SAME. [NAMES AND CLASSIFICATION OF IN- TERESTS.] The names and classification of interests in real property have only such application to interests in personal property as is in this division of the code expressly provided. HUtory: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 391, held unconstitutional, see history, $ 4 ante. §708. WHAT FUTURE INTERESTS ARE RECOGNIZED. No future interest in property is recognized by the law, except such as is defined in this division of the code. HtNtory: Enacted March 21, 1872; amended by Code Com- mission. Act March 16, 1901. Stats, and Amdts. 1900-1, p. 392, held unconstitutional, see history, § 4 ante. 498 Tit.II.ch.II.art.II.] CONDITIONS. §§ 707-709 ARTICLE II. CONDITIONS OF OWNERSHIP. § 707. Fixing the time of enjoyment. § 708. Conditions. § 709. Certain conditions precedent void. § 710. Conditions restraining marriage. [Void when.] § 711. Conditions restraining alienation void. § 707. FIXING TIME OF ENJOYMENT. The time when the enjoyment of property is to begin or end may be deter- mined by computation, or be made to depend on events. In the latter case, the enjoyment is said to be upon condition. HLstory: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 82 pars, annotation. 109 C. 323, 330, 50 A. S. 43, 41 P. 1089 (construed and applied). Conditions precedent and subsequent. — Vesting of, see Kerr's Cyc. C. C. § 708 and note. Precedent and subsequent. — See Kerr's Cyc. C. C. § 708 and note. Uses and trusts. — See Kerr's Cyc. C. C. §§ 847 et seq. and notes. § 708. CONDITIONS. Conditions are precedent or subse- quent. The former fix the beginning, the latter the ending, of the right. History: Enacted March 21, 1872. As to conditions precedent, see Kerr's Cyc. C. C. § 1436 and note. As to conditions subsequent, see Kerr's Cyc. C. C. § 1438 and note. § 709. CERTAIN CONDITIONS PRECEDENT VOID. If a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otherwise unlawful, the instrument takes effect and the condition is void. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 392. held unconstitutional, see history, § 4 ante. 499 §§710,711 CIVIL CODE. [Div.II,Pt.I. See Kerr's Cyc. C. C. for 4 pars, annotation. 55 C. 564, 566 (meaning of "instrument" — it does not embrace what). As to unlawful contracts, see Kerr's Cyc. C. C. § 1441 and note. §710. CONDITIONS RESTRAINING MARRIAGE. [VOID WHEN.] Conditions imposing restraints upon marriage, ex- cept upon the marriage of a minor, are void; but this does not affect limitations where the intent was not to forbid mar- riage, but only to give the use until marriage..; ,, . History! Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4. p. 218. See Kerr's Cyc. C. C. for 35 pars, annotation. 149 C. 146, 151, 85 P. 308, 9 A. C. 1143 (distinction between con- ditions in restraint of marriage, as applied to real and to per- sonal estate, abolished). As to effect of statute prohibiting remarriage of guilty party on divorce, see 24 L. 831. As to injunctions against enforcing contracts relating to marriage under marriage-brokerage contracts, see 48 L. 842- 850. As to restraint with limitation over, see Kerr's Cyc. C. C. § 710, note pars. 29-33. §711. CONDITIONS RESTRAINING ALIENATION VOID. Conditions restraining alienation, when repugnant to the interest created, are void. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 45 pars, annotation. ,64 C. 363, 366, 367, 28 P. 118, 120 (applied); 74 C. 141, 143, 15 P. 451, 452 (applied); 110 C. 423, 426, 427, 42 P. 908 (referred to); 141 C. 659, 667, 75 P. 344 (applied with §715); 149 C. 178, 188, 189, 190, 86 P. 603 (not applicable to what conveyance); 149 C. 667, 675, 87 P. 276 (construed — section declares against repug- nant conditions restraining alienation, but rule does not depend on mere form in which restraint is imposed — what covenants are avoided); 149 C. 712, 717, 87 P. 573 (instance of repugnancy to particular interest created, by will, and consequently void). As to conditions subsequent, see Kerr's Cyc. C. C. § 1438 and note. As to restraint against alienation, see note 9 A. D. 200-202; 57 A. D. 488-499; 32 A. D. 242, 243; 9 A. S. 405-408. 500 Tit.II,ch.II.art.III.l RESTRAINTS, VALIDITY. §715 ARTICLE III. RESTRAINTS UPON ALIENATION. § 715. How long it may be suspended. § 716. Future interests void, which suspend power of aliena- tion. § 717. Leases of agricultural land, for over fifteen years, void. § 718. Leases of city lots, for over fifty years, void. § 715. HOW LONG IT MAY BE SUSPENDED. The abso- lute power of alienation cannot be suspended, by any limita- tion or condition whatever, for a longer period than during the continuance of the lives of persons in being at the crea- tion of the limitation or condition, except in a single case mentioned in section seven hundred and seventy-two. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 125 pars, annotation. 58 C. 457, 473, 481, 482 (construed); 73 C. 99, 103, 14 P. 394, 396 (applied); 74 C. 141, 143, 15 P. 451, 452 (referred to in con- struing limitations of power to sell to named person): 79 C. 613, 622, 22 P. 50, 52 (applied); 105 C. 192, 197, 38 P. 636 (con- strued); 108 C. 627, 646, 647, 649 (cited), 656, 657, 658 (applied to trusts in personal property) ; 49 A. C. 97, 41 P. 772; 109 C. 323, 330, 50 A. S. 43, 41 P. 1089 (applied); 118 C. 656, 657, 658, 50 P. 753 (applied); 119 C. 139, 146, 51 P. 38 (applied); 121 C. 379, 382, 53 P. 813 (applied); 123 C. 140, 142, 55 P. 681 (construed with other sec- tions) ; 124 C. 533, 536, 57 P. 564 (applied with other sections); 133 C. 617, 620, 85 A. S. 227, 66 P. 32 (cited) ; 136 C. 138, 141, 142, 89 A. S. 120, 68 P. 587 (applied); 144 C. 121, 125, 127, 77 P. 825 (con- strued); 149 C. 200, 204, 205, 85 P. 147 (limitation or condition created only upon death of deceased, and not at time of execu- tion of will); 149 C. 712, 714, 87 P. 573 (applied); 150 C. 640, 645, 89 P. 606 (limit of trust for accumulation); 152 C. 201, 204, 92 P. 184, 185 (trust created by will, when void); 5 C. A. 188, 191, 89 P. 1065 (court has often considered and upheld this section); 86 F. 975, 976 (what deed of trust is not in violation of law). As to charitable uses and trusts, see 9 A. D. 577-588; 44 A. D. 98-101; 67 A. D. 184; 90 A. D. 101-106; 38 A. R. 300-303; 39 A. R. 738-750; 58 A. R. 599-601; 60 A. R. 230-236; 49 A. S. 117-138; 63 A. S. 248-269. As to charitable uses and trusts, with reference to the rule against perpetuities, see 5 Encyc. L. 902. 501 §§716,717 CIVIL CODE. [Div.II,Pt.L As to perpetuities in general, see 9 A. D. 577-588; 60 A. R. 230-236; 49 A. S. 117-138; 63 A. S. 248-269; 64 A. S. 755-772; 95 A. S. 214-234; 1 L. 453; 3 L. 145-149; 4 L. 140; 11 L. 85-89; 20 L. 509-517. Lease witli option to purchase — As to validity. — See Kerr's Cyc. C. C. § 715, note par. 85; § 718, note par. 5. Provision against alienation of interest of cestui que trust. — See 2 L. 113. Restraints upon alienation. — See 9 A. D. 200; 16 Cent. Dig. col. 1624, § 479. Suspension of power of alienation — As to generally, see 1 L. 453; 3 L. 145; 4 L. 110; 11 L. 85; 11 L. 87. §716. FUTURE INTERESTS VOID, WHICH SUSPEND POWER OF ALIEN.\TIO>'. Every future interest is void in its creation which, by any possibility, may suspend the abso- lute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 73 C. 99, 103, 14 P. 394, 396 (applied with §715); 79 C. 613, 622, 22 P. 50, 52 (construed); 108 C. 627, 647, 648, 49 A. S. 97, 41 P. 772 (applied with other sections); 119 C. 139, 146, 51 P. 38 (applied with other sections); 121 C. 379, 382, 53 P. 813 (construed); 123 C. 140, 143, 55 P. 681 (construed); 124 C. 533, 537, 57 P. 564 (construed with other sections); 136 C. 138, 141, 142, 89 A. S. 120, 68, P. 587, 588 (construed with other sec- tions); 149 C. 712, 714, 717, 87 P. 573 (applied); 150 C. 640, 645, 89 P. 606 (limit of trust for accumulation); 152 C. 201, 204. 92 P. 184, 185 (trust created by will, when void); 5 C. A. 188, 191, 89 P. 1065 (court has often discussed and upheld this section); 86 F. 975, 976 (referred to). As to restraint on alienation, see Kerr's Cyc. C. C. § 715 and note. §717. LEASES OF AGRICULTURAL LAND, FOR OVER FIFTEEN YEARS, VOID. No lease or grant of land for agri- cultural or horticultural purposes for a longer period than fifteen years, in which shall be reserved any rent or service of any kind, shall be valid. 502 Tit.II,cli.II.art.III.] CITY LOTS, LEASE. §718 History: Enacted March 21,' 1872; amended March 26, 1895, Stats, and Amdts. 1895, p. 75; April 19, 1909, Stats, and Amdts. 1909, p. 1000. See Kerr's Cyc. C. C. for 2 pars, annotation. 141 C. 326, 330, 74 P. 995 (construed). §718. LEASES OF CITY LOTS, FOR OVER FIFTY YEARS, VOID. No lease or grant of any town or city lot, for a longer period than fifty years, in which shall be reserved any rent or service of any kind, shall be valid; provided, that the property of any municipality, or any minor or incompe- tent person shall not be leased for a longer period than ten years. History: Enacted March 21, 1872; amended March 20, 190,3, Stats, and Amdts. 1903, p. 247. See Kerr's Cyc. C. C. for 5 pars, annotation. 136 C. 138, 141, 142, 89 A. S. 120, 68 P. 587 (applied); 141 C. 659, 667, 75 P. 344 (construed). 503 § 722 CIVIL CODE. [Div.II.Pt.I. ARTICLE IV. ACCUMULATIONS. § 722. Dispositions of Income. § 723. Accumulations, when void. § 724. Accumulation of income. § 725. Other directions, when void in part. § 726. Application of income to support, etc., of minor. §722. DISPOSITIONS OF INCOME. Dispositions of tlie income of property to accrue and to be received at any time subsequent to the execution of the instrument creating such disposition, are governed by the rules prescribed in this title in relation to future interests. History: Enacted March 21, 1872. 58 C. 457, 481 (construed with other sections); 79 C. 613, 623, 22 P. 50 (applied with other sections). See post § 724 and note. PERPETUITIES. Accumulations — -During- life or lives. — See 39 Cent. Dig. col. 893, §71. Same — During minority. — See 39 Cent. Dig. col. 890, § 70. Same — Effect of invalid provision for. — See 39 Cent. Dig. col. 898, § 73. Same — For definite period of time. — See 39 Cent. Dig. col. 888, § 69. Same — Purpose of. — See 39 Cent. Dig. col. 896, § 72. Same — Restrictions on. — See 39 Cent. Dig. col. 884, § 67. Same — What constitutes trusts for. — See 39 Cent. Dig. col. 885, § 68. Circumstances under which rule against is applicable. — See 49 A. S. 117; 2 Obiter Dig. 462. Conflict of laws as to. — See 2 L. N. S. 432. Constitutional and statutory provisions against. — See 39 Cent. Dig. col. 730, § 3. Contract for indefinite option, or indefinite renewal of option, as a perpetuity. — See 9 L. N. S. 913. Definition of. — See 2 Obiter Dig. 461; 6 W. & P. 5319. Devise — Of life estate to unborn children of living persons, as contravening rule against. — See 6 L. N. S. 330. Same — To a class, some of whom may not take within a pre- scribed period. — See 2 Obiter Dig. 462. 504 Tit.II,ch.II,art.IV.] PERPETUITIES. § 723 Effect of — Invalidity. — See 39 Cent. Dig. col. 838, |§ 43, 44. Same — On other interests. — See 5 A. D. 427. Same — On prior takers on the failure of a gift clause in violation of rule against. — See 20 L. 509. Same — Upon contemporaneous interests. — See 5 A. D. 431. Limitation of estate upon probate of will, as a violation of the rule against. — See 10 L. N. S. 564. Origin — And nature of rule against. — See 39 Cent. Dig. col. 727, § 1. Same — Of rule against. — See 2 Obiter Dig. 461. Provisions for in violation of the law. — See 1 L. 453. Remainder — And executory devises. — See 39 Cent. Dig. col. 742, §§ 9-30. Same — Void for remoteness, effect on particular estate. — See 3 L. N. S. 639. Remoteness of gifts to charity.— See 39 Cent. Dig. col. ■ 868, §§57-66. Restrictions as to remoteness in general. — See 39 Cent. Dig. col. 732, §§ 4-8. Rule against has reference to time. — See 2 Obiter Dig. 461. Severability of perpetuities. — See 64 A. S. 634. Suspension of absolute ownership too remote when. — See 11 D. 87. Suspension of absolute power of alienation^Invalidity. — See 39 Cent. Dig. col. 847, §§ 45-56. Trust for accumulation. — See 8 A. D. 917. Trusts for charitable uses. — See 1 L. 419; 3 L. 145; 5 L. 34; 11 L. 86; 6 W. & P. 5321. Trust — In respect to personal property. — See 3 L. 145; 11 L. 89. Unlawful suspension of power of sale. — See 11 L. 88. Uses, trusts and powers — As to, generally, see 39 Cent. Dig. col. 803, §§ 31-39. Validity of restraints on the alienation of a fee simple during a limited time. — See 3 L. N. S. 68-676. What are forbidden in the United States. — See 90 A. D. 101. When vesting of estate depends on contingency. — See 11 L. 85. § 723. ACeUMTTLATIONS, ^VHEX VOID. All directions for the accumulation of the income of property, except such as are allowed by this title, are void. History: Enacted March 21, 1872. 58 C. 457. 481 (construed with other sections); 136 C. 97. 103, 68 P. 494 (construed); 136 C. 138, 142, 89 A. S. 120, 68 P. 587 (referred to); 144 C. 121, 127, 77 P. 825 (it is only "directions" for accumulation of income that statute makes void); 150 C. 640, 644, 89 P. 606 (applied). See Kerr's Cyc. C. C. § 724 and note. 505 §§ 724, 725 CIVIL CODE. [Div.II.Pt.I. § 724. ACCUMULATION OF INCOME. An accumulation of the income of property, for the benefit of one or more per- sons, may be directed by any will or transfer in writing sufficient to pass the property out of which the fund is to arise, as follows: 1. If such accumulation is directed to commence on the creation of the interest out of which the income is to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority; or, 2. If such accumulation is directed to commence at any time subsequent to the creation of the interest out of which the income is to arise, it must commence within the time in this title permitted for the vesting of future interests, and during the minority of the beneficiaries, and terminate at the expiration of such minority. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 58 C. 457, 480, 481, 482 (construed and applied); 79 C. 613, 623, 624, 22 P. 50, 52 (construed and applied); 136 C. 138, 142, 89 A. S. 120, 68 P. 587 (referred to); 150 C. 640, 644, 645, 89 P. 606 (construed — direction for accumulation valid when). As to accumulations, see 49 A. S. 117, 127, 138; 73 A. S. 413, 440; 1 L. 453, 454; 3 L. 145-149; 4 L. 140, 141; 11 L. 85-89. Same — Liability for debts, — as to, see Kerr's Cyc. C. C. § 859 and note. Same — Ownership of undisposed of, — as to, see Kerr's Cyc. C. C. § 733 and note. Same — Provision for, in will, see 2 Church's New Probate Law and Practice, 1589, 1601. As to trust in respect to personal property, see 3 L. 145-149; 11 L. 85-89. Annuities, — as to, see Kerr's Cyc. C. C. §§ 1357, 1366 and notes. Beneficiary's interest. — As to restraint upon disposition of, see Kerr's Cyc. C. C. § 859 and note. Income. — As to bequest of, see Kerr's Cyc. C. C. §§ 1357, 1366 and notes. § 725. OTHEK DIRECTIONS, WHEN VOID IN PART. If in either of the cases mentioned in the last section the direc- tion for an accumulation is for a longer term than during the minority of the beneficiaries, the direction only, whether 506 Tit.II,Ch.II,art.IV.] INCOME FOR SUPPORT. § 726 separable or not from other provisions of the instrument, is void as respects the time beyond such minority. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. lor 2 pars, annotation. 58 C. 457. 481 (construed); 150 C. 640, 645, 89 P. 606 (construed — direction for accumulation valid when). §726. APPLICATION OF OCOJIE TO SUPPORT, ETC., OF MINOK. When a minor for whose benefit an accumula- tion has been directed is destitute of other sufficient means of support and education, the propert court, upon applica- tion, may direct a suitable sum to be applied thereto out of the fund. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 58 C. 457, 481. See Kerr's Cyc. C. C. P. §§ 1771, 1792 and notes. 507 §§ 732-739 CIVIL CODE. [Div.II.Pt.I. CHAPTER III. RIGHTS OF OWNERS. § 732. Increase of property. § 733. In certain cases, who entitled to income of property. § 732. INCREASE OF PROPERTY. The owner of a thing owns also all its products and accessions. History: Enacted March 21, 1872. § 783. I> CERTAIN CASES, WHO ENTITLED TO INCOME OF PROPERTY. When, in consequence of a valid limitation of a future interest, there is a suspension of the power of alienation or of the ownership during the continuation of which the income is undisposed of, and no valid direction for its accumulation is given, such income belongs to the persons presumptively entitled to the next eventual interest. History: li^nacted March 21, 1872. 139 C. 682, 689, 73 P. 606 (applied — where will contained no direction concerning accumulations of income). CHAPTER IV. TERMINATION OF OWNERSHIP. § 739. Future interests, when defeated. § 740. Same. [How defeated.] § 741. Future interests, when not defeated. § 742. Same. [Contingency happening, how future interest takes effect.] § 739. FUTURE INTERESTS, WHEN DEFEATED. A future interest, depending on the contingency of the death of any person without successors, heirs, issue, or children, is defeated bj the birth of a posthumous child of such person, capable of taking by succession. History: Enacted March 21, 1872. 508 Titll.ch.IV.] FUTURE INTEREST. §§ 740-742 § 740. SAME. [HOW DEFEATED.] A future interest may be defeated in any manner or by any act or means which the party creating sucli interest provided for or autliorized in the creation thereof; nor is a future interest, thus liable to be defeated, to be on that ground adjudged void in its creation. History: Enacted March 21, 1872. §741. FUTURE INTERESTS, WHEN NOT DEFEATED. No future interest can be defeated or barred by any aliena- tion or other act of the owner of the intermediate or prece- dent interest, nor by any destruction of such precedent inter- est by forfeiture, surrender, merger, or otherwise, except as provided by the next section, or where a forfeiture is imposed by statute as a penalty for the violation thereof. History: Enacted March 21, 1872. 147 C. 554, 559, 109 A. S. 162, 82 P. 202 (section simply declares what was always the law). §742. SAME. [CONTINGENCY HAPPENING, HOW FUTURE INTEREST TAKES EFFECT.] No future interest, valid in its creation, is defeated by the determination of the precedent interest before the happening of the contingency on which the future interest is limited to take effect; but should such contingency afterwards happen, the future interest takes effect in the same manner and to the same extent as if the precedent interest had continued to the same period. History: Enacted March 21, 1872. 509 §§ 748, 749 CIVIL CODE. [Div.II,Pt.I. TITLE III. GENERAL DEFINITIONS. § 748. Income, what. § 749. Time of creation, what. § 748. INCOME, WHAT. The income of property, as the term is used in this part of the code, includes the rents and profits of real property, the interest of money, dividends upon stock, and other produce of personal property. HLstory: Enacted March 21, 1872. § 749. TIME OF CREATION, WHAT. The delivery of the grant, where a limitation, condition, or future interest is cre- ated by grant, and the death of the testator, where it is cre- ated by will, is to be deemed the time of the creation of the limitation, condition, or interest, within the meaning of this part of the code. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 79 C. 613. 622, 22 P. 50, 52 (cited); 108 C. 627, 647, 49 A. S. 97, 41 P. 772 (cited); 123 C. 140, 142, 143, 55 P. 681 (referred to); 124 C. 533, 537, 57 P. 564 (cited as to time of creation of limitation where trust is created by will); 86 F. 975, 976 (referred to). Suspension of power of alienation. — See Kerr's Cyc. C. C. § 715 and note. 510 II i Pt.II,Tit.I.] REAL PROPERTY. § 755 PART II. REAL OR IMMOVABLE PROPERTY. Title I. General Provisions. § 755. IL Estates in Real Property, §§ 761-811. IIL Rights and Obligations of Owners, §§ 818-843. IV. Uses and Trusts, §§ 847-871. V. Powers, §§ 878-940. [Repealed.] TITLE I. GENERAL PROVISIONS. § 755. Real property, how governed. § 755. REAL PROPERTY, HOW GOVERNED. Real prop- erty within this state is governed by the law of this state, except where the title is in the United States. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 218. See Kerr's Cyc. C. C. for 4 pars, annotation. 85 C. 280, 282, 24 P. 743, 744 (cited). Declaratory of common law. — See 22 Encyc. L. 1321. Territorial jurisdiction — Limitation on. — See Kerr's Pocket. Pol. C. §§ 33, 34. 511 § 761 CIVIL CODE. [Div.II,Pt.I. TITLE II. ESTATES IN REAL, PROPERTY. Chapter I. Estates in General, §§ 761-781. II. Termination of Estates, §§ 789-793. IIL Servitudes, §§ 801-811. CHAPTER I. ESTATES IN GENERAL. § 761. Enumeration of estates. § 762. What estate a fee simple. § 763. Conditional fees and estates tail abolished. § 764. Certain remainders valid. § 765. Freeholds. Chattels real. Chattel interests. § 766. Estate for life of a third person, when a freehold, etc. § 767. Future estates, what. § 768. Reversions. § 769. Remainders. § 770. Suspended ownership. § 771. Suspension by trust. § 772. Contingent remainder in fee. § 773. Remainders, future and contingent estates, how created. § 774. Limitation of successive estates for life. § 775. Remainder upon 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 purchasers. § 780. Construction of certain remainders. § 781. Effect of power of appointment. §761. E?fUMERAT10.\ OF ESTATES. Estates in real property, in respect to the duration of their enjoyment, are either: 1. Estates of inheritance or perpetual estates; 2. Estates for life; 3. Estates for years; or, 4. Estates at will. History: Enacted March 21, 1872. 512 II Tit.II.ch.I.] FEB SIMPLE— ESTATES TAIL. §§ 7g2, 763 See Kerr's Cyc. C. C. for 5 pars, annotation. 79 C. 442, 443, 21 P. 861, 862 (applied); 142 C. 529, 538, 76 P. 243 (referred to); 150 C. 177, 178, 88 P. 706 (allegation of owner- ship in fee, what is); 150 C. 392, 394, 88 P. 1090 (nature of estate created by privilege to temporarily use tide lands of state). Tenancy at will. — See Kerr's Cyc. C. C. § 761 and note. "Estate" — In testamentary gift restricted to personalty. — See 3 A. C. 420. Same — Interest in property with power to dispose of when does and wlien does not amount to an estate in fee. — See 49 A. D. 115. Same — Merger of, as dependent upon intention of parties. — See 7 A. C. 700. Estates-tail, creation, nature and destruction. — See 7 A. S. 428. Lease is an estate in real property. — See 79 C. 442; 21 P. 861. Tenancy at will. — See Kerr's Cyc. C. C. § 761 and note. § 762. WHAT ESTATE A FEE SIMPLE. Every estate of inheritance is a fee, and every such estate, when not defeas- ible or conditional, is a fee simple or an absolute fee. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 218; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 322, held uncon- stitutional, see history, § 4 ante. . : -, : 4?; See Kerr's Cyc. C. C. for 3 pars, annotation. 150 C. 177, 178, 88 P. 706 (allegation of ownership in fee, what is): 3 C. A. 633, 640, 86 P. 985 (referred to). Words of inlieritance not essential. — See Kerr's Cyc. C. C. § 1072 and note. §763. COXDITIONAL FEES A>D ESTATES TAIL ABOLISHED. Estates tail are abolished, and every estate which would be at common law adjudged to be a fee tail is a fee simple; and if no valid remainder is limited thereon, is a fee simple absolute. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 104 C. 298, 302, 37 P. 1049 (construed). Shelley's case — Rule in. — See 25 Encyc. L. 639. Kerr's C. C. — 17 513 §§ 764-766 CIVIL CODE. [Div.II,Pt.II. § 764. CERTAIN REMAINDERS VALID. Where a remainder in fee is limited upon 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 pos- session on the death of the first taker, without issue living at the time of his death. History: Enacted March 21, 1872. As to remainders, conversions, and executory interest, see 24 Encyc. L. 374. §765. FREEHOLDS. CHATTELS REAL. CHATTEL INTERESTS. Estates of inheritance and for life are called estates of freehold; estates for years are chattels real; and estates at will are chattel interests, but are not liable as such to sale on execution. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 113 C. 345, 353, 45 P. 680 (applied); 142 C. 529, 538, 539, 76 P. 243 (cited). § 766. ESTATE FOR LIFE OF THIRD PERSON, >VHEN A FREEHOLD, ETC. An estate during the life of a third per- son, whether limited to heirs or otherwise, is a freehold. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 218. See Kerr's Cyc. C. C. for 2 pars, annotation. ESTATES FOR LIFE, Adverse possession of, during- life tenancy. — See 19 L. 839. Debts of life tenant as affecting property. — See 1 L. 545. Dividends — Respective rights of life tenant and remainder- man to. — See 45 L. 394. Same — Right to, as between remainderman and life tenant. — See 12 L. N. S. 768-812. Dividends on stock, wlien go to tenant of. — See 24 A. R. 169; 54 A. R. 264. Duty of life tenant to pay taxes. — See 32 L. 744-757. Effect upon rule in Shelley's Case in express proliibition against conveyance or encumbrance of property by life ten- ant.— See 7 L. N. S. 1109. Emblements, right of tenant to. — See 69 A. D. 511. 514 Tit.II,ch.I.] FUTURE STATES. § 767 Estovers, right of tenant for, to. — See 64 A. D. 367. Improvements, allowance to life tenant for. — See 81 A. S. 183. In personal property. — See 67 A. D. 453. Public improvement — Must life tenant or remainderman bear expenses of. — See 10 L. 342. Reservation of, as illustrating grantor's intention in deliver- ing deed to third person. — See 54 L. 884. Right — As between life tenant and remainderman, in distribu- tion made by corporations. — See 12 L. N. S. 762-812. Same — On condemnation of property. — See 21 L. 212. Same — To crop on death of life tenant. — See 1 L. 427; 11 L. 800. Same — To increase stock and stock dividends, as between owners of capital and income. — See 16 L. 461. Right of estate of one entitled by will or statute to allow- ance for support and maintenance to accumulations undrawn and unexpended at time of her death. — See 9 L. N. S. 997. Right of lessee of life tenant to possession and emblement upon death of his lessor. — See 11 L. 688. Right of life tenant in moneys and life estate. — See 57 A. D. 587. Rights and remedies of tenants of. — See 14 A. S. 630. Taxes, duty of life tenant to pay. — See 114 A. S. 448. Tax sale of land. — See 32 L. 805. Same — Effect on reversion of remainder.- — See 33 L. 688. Title to increase of animals as between life tenant and remainderman. — See 17 L. 21. When created, and of the rule in Shelley's Case. — See 11 A. S. 99. When right to use of income commences. — See 2 L. 113. § 767. FUTURE ESTATES, WHAT. 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 created at the same time. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 49 C. 369, 374 (referred to as authorizing creation of freehold to commence in futuro — deed granting land in fee with reserva- tion that grantor is first to have use, enjoyment, and possession of the property during his natural life is void at common law) ; 98 C. 446, 451, 35 A. S. 186, 33 P. 338, 340 (applied); 136 C. 138, 141, 89 A. S. 120, 68 P. 587 (cited); 146 C. 444, 447, 80 P. 705 (applied- — free hold to commence in futuro may be created); 149 C. 667, 674, 87 P. 276 (this section removes any objection to 515 §§ 768-771 CIVIL CODE. [Div.II.Pt.II. wliich deeds creating- estates to commence in future may have been subject at common law). Defeat of future interest by act of owner, forfeiture, sur- render, merger, not permitted. — See Kerr's Cyc. C. C. § 741 and note. § 768. REVERSIONS. A reversion is the residue of au estate left by operation of law in the grantor or his succes- sors, Off in the successors of a testator, commencing in pos- session on the determination of a particular estate granted or devised. IIlNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 134 C. 320, 322, 66 P. 370 (referred to). § 769. RE]!ffAINDERS. When a future estate, other than a reversion, is dependent on a precedent estate, it may be called a remainder, and may be created and transferred by that name. IIi.Htory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 120 C. 79, 84, 52 P. 132 (applied with other sections). Defeat of future Interest — How effected. — See Kerr's Cyc. C. C. §§ 739-741 and notes. § 770. SUSPENDED OWNERSHIP. The absolute owner- ship of a term of years cannot be suspended for a longer period than the absolute power of alienation can be sus- pended in respect to a fee. History: Enacted March 21, 1!S72; amended March 30, 1874, Code Amdts. 1873-4, p. 218. As to restraint on alienation. — See Kerr's Cyc. C. C. § 715 and note. §771. SUSPENSION BY TRUST. The suspension of all power to alienate the subject of a trust, other than a power to exchange 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 seven hundred and fifteen. History: Enacted March 21. 1872. 516 Tit.II,ch.I.] REMAINDERS. §§ 772, 773 See Kerr's Cyc. C. C. for 7 pars, annotation, 58 C. 457, 481 (construed); 108 C. 627, 647, 648, 656, 49 A. S. 97, 41 P. 772 (construed and applied); 121. C. 379, 382, 53 P. 813 (cited); 124 C. 533, 537, 57 P. 533 (referred to); 86 F. 975, 976 (referred to). Distinction between trusts in personal and real property. — See Kerr's Cyc. C. C. §§ 852, 857, 2220, 2222 and notes. § 772. CONTINGENT REMAINDER IN FEE. 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 years, or upon any other contingency by which the estate of such persons may be determined before they attain majority. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 58 C. 457, 474, 476, 480 (construed and applied); 79 C. 613, 622, 22 P. 50, 52 (referred to in applying § 715); 119 C. 139, 146, 51 P. 38 (construed); 124 C. 533, 537, 57 P. 564 (cited); 128 C. 1, 9, 60 P. 471 (cited); 149 C. 200, 204, 85 P. 147 (referred to in applying §715). After-born children born during testator's life. — See Kerr's Cyc. C. C. § 29 and note, § 1337 and note. §773. REMAINDERS, FUTURE AND CONTINGENT ESTATES, HOW CREATED. Subject to the rules of this title, and of part one 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 thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created, expectant on the determination of a term of years; and a fee may be limited on a fee, upon a contingency, which, if it should occur, must happen within the period prescribed in this title. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 120 C. 79, 84, 52 P. 132 (applied); 128 C. 1, 9, 60 P. 471 (referred to); 136 C. 138, 141, 89 A. S. 120, 68 P. 587, 588 (construed and applied). 517 §§ 774-776 CIVIL CODE. [Div.II.Pt.II. Future estate dependent upon precedent estate. — See Kerr's Cyc. C. C. § 695 and note. Remainder limited on contingency. — See Kerr's Cyc. C. C. § 778 and note. §774. LIMITATIOIS OF SUCCESSIVE ESTATES FOB LIFE. Successive estates for life cannot be limited, 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, takes effect in the same manner as if no other life estate had been created. HiHtoryi Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 219. 128 C. 1, 9, 60 P. 471 (referred to); 149 C. 200, 205, 85 P. 147 (inapplicable to what trust created by will). S 77.'). KE.>rAIM)ER I P0> ESTATES FOR LIFE OF THIRD PERSON. No remainder can be created upon succes- sive estates for life, provided for in the preceding section, unless such remainder is in fee; nor can a remainder be cre- ated upon such estate in a term for years, unless it is for the whole residue of such term. History: Enacted March 21, 1872; amended March 30, 1874, (V,de Anidts. 1873-4, p. 219. 128 C. 1, 9, 60 P. 471 (referred to). §77fi. CONTINGENT REMAINDER ON A TERM OF YEARS. A contingent remainder cannot be created 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 being at the creation of such remainder. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 128 C. 1, 9, 60 P. 471 (referred to); 136 C. 138, 141, 89 A. S. 120, 68 P. 587 (cited and construed). 518 Tit.II.ch.I.] REMAINDER, CONSTRUCTION. §§777-780 § 777. EEMAINDER OF ESTATES FOR LIFE. No estate for life can be limited as a remainder on a term of years, except to a person in being at the creation of such estate. History: Enacted March 21, 1872. 128 C. 1, 9, 60 P. 471 (referred to). § 778. RE]ffAI^DER UPOJf A CONTIXGEXCT. A remainder may be limited on a contingency which, in case it should happen, will operate to abridge or determine the precedent estate; and every such remainder is to be deemed a condi- tional limitation. Hifstory: Enacted March 21, 1872. 120 C. 79, 84, 52 P. 132 (referred to); 128 C. 1, 9, 60 P. 471 (referred to). § 779. HEIRS OF A TENANT FOR LIFE, WHEN TO TAKE AS PURCHASERS. When a remainder is limited to the heirs, or heirs of the body, of a person to whom a life estate in the same property is given, the persons who, on the termination of the life estate, are the successors or heirs of the body of the owner for life, are entitled to take by virtue of the remainder so limited to them, and not as mere successors of the owner for life. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 70 C. 553, 559 (erroneously cited for § 709 C. C. P.); 104 C. 298, 299, 301, 302, 37 P. 1049 (construed and applied); 128 C. 1, 9, 60 P. 471 (referred to). §780. CONSTRUCTION OF CERTAIN REMAINDERS. When a remainder on an estate for life or for years is not limited on a contingency defeating or avoiding such prece- dent estate, it is to be deemed intended to take effect only on the death of the first taker; or the expiration, by lapse of time, of such term of years. History: Enacted March 21, 1872. 128 C. 1, 9, 60 P. 471 (referred to). 519 § 781 CIVIL CODE. [Div.II.Pt.II. § 781. EFFECT OF POWER OF APPOFNTMENT. A gen- eral or special power of appointment does not prevent the vesting of a future estate limited to take effect in case such power is not executed. HiHtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 128 Or 1, 9, 60 P. 471 (referred to); 132 C. 523, 558, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed); 147 C. 95, 102, 81 P. 315 (this section seemed to contemplate validity of provisions of will in case at bar, but question was not definitely determined). 520 Tit.II.Ch.II.] TERMINATING TENANCY. § 739 CHAPTER II. TERMINATION OF ESTATES. § 789. Tenancy at will may be terminated by notice. § 790. Effect of notice. § 791. Re-entry, when and how to be made. § 792. Summary proceedings in certain cases provided for. § 793. Notice not necessary before action. §789. TENANCY AT WILL MAY BE TERMINATED BY NOTICE. A tenancy or other estate at will, however created, may be terminated by the landlord's giving notice in writing to the tenant, in the manner prescribed by section eleven hundred and sixty-two 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. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 56 C. 128, 129 (applied); 66 C. 446. 447, 6 P. 84 (applied); 67 C. 471, 8 P. 39, 69 (referred to); 33 P. 447, 448 (applied in action to recover possession); 101 C. 425, 428, 35 P. 1021 (applied); 105 C. 15, 19, 38 P. 510 (applied); 113 C. 15, 19, 45 P. 14 (applied); 113 C. 532, 540, 45 P. 816 (held not applicable); 140 C. 164 167 73 P. 818 (applied). TERMINATING TENANCY. Appeal in summary proceedings. — See 9 L. 801. Constructive ejection resulting from positive overt act of landlord. — See 7 A. C. 593. Damages recoverable by tenant in action for wrongful evic- tion. — See 6 A. C. 460. Death of lessor or lessee, effect of. — See 23 L. 707. Demand before commencing action. — See Kerr's Cyc. C. C. § 791 and note. Designation of time of termination of tenancy at will in notice to quit. — See 4 A. C. 628. Emblements, right of tenant to. — See Kerr's Cyc. C. C. § 819 and note. First and last days in computing time. — See 49 L. 210; 49 1^, 239. Liability for wrongful ejection of tenant. — See 16 L. 798. 521 §§ 790-792 CIVIL CODE. [Div.II,Pt.II. Same — For evicting sick tenant, lodger or other occupant. — See 55 L. 258. Notice to quit, ejection to tenant. — See 8 L. 221. Stipulation that vendee or mortgagee shall on default become a tenant, as affecting right to recover possession of premises. — See 49 L. 438. Sufficiency of service of notice to quit by landlord. — See 8 A. C. 1144. Summary proceedings to oust tenants — Notice in. — See 9 L. 798. § 790. EFFECT OF NOTICE. After such notice has been served, and the period specified by such notice has expired, but not before, the landlord may re-enter, or proceed accord- ing to law to recover possession. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 66 C. 446, 447, 6 P. 84 (referred to); 140 C. 164, 167, 73 P. 818 (applied). Effect of notice — Tenant holds over. — See Kerr's Cyc. C. C. § 789 and note par. 5. Unlawful detainer — When commences. — See Kerr's Cyc. C. C. § 789 and note par. 16. § 791. RE-ENTRY, WHEN AND HOW TO BE MADE. When- ever the right of re-entry is given to a grantor or lessor in any grant or lease, or otherwise, such re-entry may be made at any time after the right has accrued, upon three days' notice, as provided in sections eleven hundred and sixty-one and eleven hundred and sixty-two. Code of Civil Procedure. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 56 C. 128, 129, 130 (applied); 63 C. 51, 52 (applied); 66 C. 446, 447, 6 P. 84 (referred to); 138 C. 76, 79, 70 P. 1073 (construed and applied). Re-entry on forfeiture — Erection of remedies. — See 8 L. 759. §792. SUMMARY PROCEEDINGS IN CERTAIN CASES PROVIDED FOR. Summary proceedings for obtaining pos- session of real property forcibly entered, or forcibly and unlawfully detained, are provided for in sections eleven hun- 522 Tit.II,ch.II.] NOTICE TO QUIT NECESSARY. § 793 dred and fifty-nine to eleven hundred and seventy-five, both inclusive, of the Code of Civil Procedure. History: Enacted March 21, 1872. § 793. NOTICE KOT NECESSARY BEFORE ACTION. An action for the possession of real property leased or granted, with a right of re-entry, may be maintained at any time, after the right to re-enter has accrued, without the notice pre- sci-ibed in section seven hundred and ninety-one. HLstory: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 392, held unconstitutional, see history, § 4 ante: amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 599. See Kerr's Cyc. C. C. for 6 pars, annotation. 11 P. 246, 247 (applied); 98 C. 422, 425, 33 P. 729, 730 (applied).. 523 § 801 CIVIL CODE. [Div.II.Pt.II. CHAPTER III. SERVITUDES. § 801. Servitudes attached to land. § 802. Servitudes not attached to land. § 803. Designation of estates. § 804. By vv'liom grantable. § 805. By whom held. § 806. Extent of servitudes. § 807. Apportioning easements. § 808. Rights of owner of future estate. § 809. Actions by owner and occupant of dominant tenement. § 810. Actions by owner of servient tenement. § 811. How extinguished. § 801. SERVITUDES ATTACHED TO LAND. The follow- ing land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements: 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; 4. The right of way; 5. The right of taking 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 discharging 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 affixed thereto; 14. The right of having the whole of a division fence main- tained by a coterminous owner; 524 II Tit.II,cll.III.] SERVITUDES. § 801 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. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 392, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 74 pars, annotation. 56 C. 11, 13 (applied); 69 C. 217, 221, 58 A. R. 558, 10 P. 409, 411 (right in and of receiving water passes by deed when); 69 C. 255, 293, 10 P. 674, 693 (construed and applied); 22 P. 216, 217 (subds. 9 and 11 applied); 83 C. 515, 517, 518, 23 P. 795, 796, 8 L. 575 (construed and applied); 90 C. 279, 286, 27 P. 216, 219 (what contract will create servitude or easement in ditch property); 91 C. 74, 84, 27 P. 539, 542 (construed and applied); 120 C. 488, 490, 493, 52 P. 843, 40 L. 476 (construed and applied); 132 C. 234, 236, 64 P. 287 (referred to); 136 C. 36, 48, 50, 68 P. 308 (construed and applied); 146 C. 435, 440, 80 P. 623 (ease- ment of right to receive water or to discharge it upon another's land); 148 C. 313, 321, 83 P. 54, 5 L. N. S. 174, 7 A. C. 511 (subds. 4 and 6 applied — right of electric light company to lay pipes, etc., in streets of city); 152 C. 596, 597, 93 P. 498, 499 (right to receive water, wlien appurtenant to land); 4 C. A. 18, 24 (subds. 4 and 9 applied, but section erroneously cited as §811); 87 P. 213 (same error). SERVITUDES. Acquisition of. — See 10 Encyc. L. 409-427. Additional, in streets and highwaj'S. — See 106 A. S. 232. Adverse possession, acquisition of. by. — See 11 A. D. 663. Ancient lights. — See 46 A. D. 583. By necessity, when exist. — See 36 A. R. 415. Cotenant's power to create. — See 21 A. S. 593. Continuance of on the severance of a heritage. — See 57 A. D. 759. Definition of. — See 10 Encyc. L. 398; 25 Encyc. L. 481; 7 W. & P. 6434; 7 W. & P. 6435. "Easement" used interchangeably with. — See 25 Encyc. L. 482. Easement and servitude distinguished. — See 25 Encyc. L. 482, note. Essential qualities of. — See 10 Encyc. L. 1099. Extinguishment of — By merger or release. — See 10 Encyc. L. 432, 433. Grant of by implication. — See 23 A. R. 446. Implied grant of by severance and sale of property. — See 34 A. S. 708. 525 § 802 CIVIL CODE. [Div.II,Pt.II. In gross. — See 7 W. & P. 6435. Kinds of. — See 10 Encyc. L. 403. Lateral support — Presumption of grant of right of. — See 29 A. R. 399. Same — Right to. — See 33 A. S. 446. Limitations, statute of, extinguishment of by. — See 14 A. S. 278. Of drain. — See 7 W. & P. 6435. Of drip.— See 7 W. & P. 6435. Of ligbt— See 7 W. & P. 6435. Of light and air. — See 7 A. D. 49; 32 A. D. 412. Same — From public streets. — See 41 A. S. 323. Of view. — See 7 W. & P. 6435. Riglits and liabilities of parties under. — See 10 Encyc. I^. 428- 430. Rights in nature of easements distinguished. — See 10 Encyc. L. 406. To receive the flow of water. — See 32 A. D. 123. Ways, and the rights and remedies of the parties entitled thereto.— See 88 A. D. 279; 100 A. D. 115; 50 A. R. 64. Ways of necessity. — See 13 A. D. 746; 35 A. D. 464; 85 A. D. 675. Ways, private, rights and obligations of parties to. — See 95 A. S. 318. When pass by implication in conveyances. — See 40 A. R. 537. When revocable. — See 43 A. R. 195. §802. SERVITUDES NOT ATTACHED TO LAND. The following land burdens, or servitudes upon land, may be granted and held, though not attached to land: 1. The right to pasture, and of fishing and taking game. 2. The right of a seat in church. 3. The right of burial. 4. The right of taking rents and tolls. 5. The right of way. 6. The right of taking water, wood, minerals, or other things. HLstory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 219. See Kerr's Cyc. C. C. for 11 pars, annotation. 65 C. 46. 48, 2 P. 880, 881 (applied); 69 C. 255. 323. 10 P. 674 (cited); 91 C. 74, 84, 27 P. 539. 542 (cited); 99 C. 210. 212. 33 P. 885, 886 (applied); 109 C. 29, 37. 41 P. 1024 (applied); 110 C. 582, 585, 42 P. 1091 (construed); 148 C. 313, 322. 83 P. 54, 5 L. N. S. 174, 7 A. C. 511 (subds. 4 and 6 applied — right of electric light company to use of streets for transmission of illumlnants). 526 Tit.II.ch.III.] GRANTING, ETC., EXTENT OF. §§ 803-806 §803. DESIGNATIOIV OF ESTATES. The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement. Hi-story: Enacted March 21, 1872. 65 C. 46, 48, 2 P. 880, 881 (referred to); 117 C. 604, 616, 49 P. 736 (right of way is not involved in franchise to street railway corporation wlien). § 804. BY WHOM GKANTABLE. A servitude can be cre- ated only by one who has a vested estate in the servient tene- ment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 65 C. 46, 48, 2 P. 880, 881 (referred to). §805. BY WHOM HELD. A servitude thereon cannot be held by the owner of the servient tenement. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 65 C. 46, 48, 2 P. 880, 881 (referred to); 110 C. 582, 585, 42 P. 1091 (applied). Extinguishing-, how. — See 1 L. 214, brief 10 L. 569. § 806. EXTENT OF SERVITUDES. The extent of a servi- tude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 65 C. 46, 48, 2 P. 880, 881 (cited); 81 C. 122, 125, 22 P. 393 (cited); 92 C. 138, 141, 142, 28 P. 215, 216, 15 L. 93 (construed and applied); 108 C. 589, 596, 41 P. 448 (referred to); 146 C. 203, 211, 79 P. 880 (applied to water rights); 148 C. 723, 725, 113 A. S. 349, 84 P. 191, 5 L. N. S. 851, 7 A. C. 851 (if easement or servitude is acquired by grant, its terms must determine extent); 148 C. 759, 766, 84 P. 162 (applied to water rights); 151 C. 403, 406, 90 P. 1052 (oral grant of right of way, having become fixed and complete, does not include right to make changes); 151 C. 425, 429, 90 P. 1053 (servitude cannot be enlarged when, without con- sent of parties); 4 C. A. 18, 25, 87 P. 213 (applied to water ditch). 527 §§ 807-810 CIVIL CODE. [Div.II,Pt.II. §807. APPORTIONING EASEMENTS. In case of parti- tion of the dominant tenement 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. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 2 pars, annotation. § 808. RIGHTS OF OWNER OF FUTURE ESTATE. The owner of a future estate in a dominant tenement may use easements attached thereto for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is occupied by a tenant. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation, § 809. ACTIONS BY OWNER AND OCCUPANT OF DOMI- NANT TENEMENT. The owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 146 C. 203, 211. 79 P. 880 (cited — covenant concerning (low of water construed). § 810. ACTIONS BY OWNER OF SERVIENT TENEMENT. The owner in fee of a servient tenement may maintain an action for the possession of the land, against any one unlaw- fully possessed thereof, though a servitude exists thereon in favor of the public. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. G9 C. 217, 221, 58 A. R. 558, 10 P. 409 (referred to). Trespass upon servient tenement cannot be committed by owner of easement. — See Kerr's Cyc. C. C. § 808 and note par. 9. 528 Titll.ch.III.] EXTINGUISHMENT. § gll §811. HOW EXTINGUISHED. A servitude is extin- guished: 1. By the vesting of the right to the servitude and the right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incom- patible with its nature or exercise; or, 4. When the servitude was acquired by enjoyment, by dis- use thereof by the owner of the servitude for the period pre- scribed for acquiring title by enjoyment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 69 C. 255, 292, 294, 10 P. 674, 692 (applied); 81 C. 122, 125 (con-, strued with §§ 2619, 2621 Pol. C, but erroneously cited as § 811 Pol. C.) 22 P. 393, 394 (correct citation); 93 C. 206, 213, 28 P. 944, 945 (construed and applied); 110 C. 122, 126, 42 P. 453 (con- strued and applied); 110 C. 582, 585, 42 P. 1091 (applied); 125 C. 420, 425, 58 P. 69 (construed and applied); 146 C. 640, 644, 80 P. 1078 (subd. 4 applied — right to use of road not lost by disuse); 4 C. A. 18, 24 (erroneously cited for § 801), 87 P. 213 (same error). Owner of servient tenement cannot hold servitude. — ^See ante. §805. Same — As to servitudes generally. — See note § 801, ante. 529 § 818 CIVIL CODE. [Div.II.Pt.II. TITLE III. RIGHTS AND OBLIGATIONS OF OWNERS. Chapter I. Rights of Owners, §§ 818-834. II. Obligations of Owners, §§ 840-843. CHAPTER I. RIGHTS OF OWNERS. Article I. Incidents of Ownership, §§ 818-827. IL Boundaries, §§ 829-834. ARTICLE I. INCIDENTS OF OWNERSHIP. § 818. Rights of tenant for life. § 819. Rights of tenant for years, etc. . § 820. Same. § 821. Rights of grantees of rents and reversion. § 822. Assignee of lessee, remedies of lessor against. § 823. Rights of lessees and their assignees, etc. § 824. Remedy on leases for life. § 825. Rent dependent on life. § 826. Remedy of reversioners, etc. § 827. Leases, change of terms. [Notice.] § 818. BIGHTS OF TENANT FOE LIFE. The owner of a life estate may use the land in the same manner as the owner of a fee simple, except that he must do no act to the injury of the inheritance. Hiiiitory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. Procedure to have life estate declared terminated by death. — See Kerr's Cyc. C. C. P. § 1723 and note. Treble damages recoverable for. — See Kerr's Cyc. C. C. P. § 732 and note. 530 Tit.III,ch.I,art.I.] TENANT FOR TEARS. §§ 819-821 § 819. RIGHTS OF TENANT FOR YEARS, ETC. A tenant for years or at will, unless he is a wrong-doer by holding over, may occupy the buildings, take the annual products of the soil, work mines and quarries open at the commencement of his tenancy. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 101 C. 425, 428, 35 P. 1021 (referred to): 115 C. 622, 625, 47 P. 597 (construed and applied); 150 C. 39, 41, 87 P. 1097 (lease of going mine or qviarry is exception to general doctrine applicable to rights of tenant for years); 5 C. A. 603, 613, 91 P. 117, 121 (right of tenants for years to graze stock upon land). Life tenants — Rights of. — See Kerr's Cyc. C. C. § 818 and note. Waste — Treble damages recoverable for. — See Kerr's Cyc. C. C. P. § 732 and note. § 820. SAME. A tenant for years or at will has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired, or by the last section. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 86 C. 335, 339, 24 P. 993, 994 (applied). As to removal of buildings. — See Kerr's Cyc. C. C. § 660, note pars. 65-79. § 821. RIGHTS OF GRANTEES OF RENTS AND REVER- SION. A person to whom 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 non-performance of any of the terms of the lease, or for any waste or cause of forfeiture, as his grantor or devisor might have had. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 79 C. 442, 443, 21 P. 861, 862 (applied); 2 C. A. 470, 475, 84 P. 317 (construed with §§ 1452, 1663, 1664 C. C. P. — rights and powers of testamentary trustee who is a devisee); 5 C. A. 475, 481, 90 531 §§ 822-825 CIVIL CODE. [Div.II.Ptll. P. 962, 965 (section is applicable when, though landlord has not directly conveyed). Notice to tenant of grant of rent, etc., necessary. — See Kerr's Cyc. C. C. § 1111 and note. §822. ASSIGNEE OF LESSEE, REMEDIES OF LESSOR AGAINST. Whatever remedies the lessor of any real prop- erty has against his immediate lessee for the breach of any agreeiaent in the lease, or for recovery of the possession, he has against the assignees of the lessee, for any cause of action accruing while they are such assignees, except where the assignment is made by way of security for a loan, and is not accompanied by possession of the premises. Hi-story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 220; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 393, held uncon- stitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 599. See Kerr's Cyc. C. C. for 3 pars, annotation. 63 C. 369, 370 (applied); 144 C. 155, 160, 77 P. 889 (applied to trustee in bankruptcy, who succeeded to interest of lessee). §823. RIGHTS OF LESSEES AND THEIR ASSIGNEES, ETC. 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 encum- brances or relating to the title or possession of the premises. History: Enacted March 21, 1872. 66 C. 416, 421, 5 P. 910 (applied). § 824. REMEDY ON LEASES FOR LIFE. Rent due upon a lease for life may be recovered in the same manner as upon a lease for years. History: Enacted March 21, 1872. § 825. RENT DEPENDENT ON LIFE. Rent dependent on 532 Tit.III,ch.I,art.I.] REVERSIONERS— LEASE. §§ 826, 827 the life of a person maj' be recovered after as well as before his death. ~ History: Enacted March 21, 1872. §826. REMEDY OF RETERSIOXERS, ETC. A person having an estate in fee, in remainder or reversion, may main- tain an action for any injury done to the inheritance, not- withstanding an intervening estate for life or years, and although, after its commission, his estate is transferred, and he has no interest in the property at the commencement of the action. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 75 C. 117, 121, 17 P. 65, 67 (applied). §827. LEASE, CHANGE OF TERM. [NOTICE.] In all leases of lands or tenements, or of any interest therein, from month to month, the landlord may, upon giving notice in writ- ing at least thirtj'' days before the expiration of the month, change the terms of the lease to take effect at the expiration of the month. The notice, when served upon the tenant, shall of itself operate and be effectual to create and establish, as a part of the lease, the terms, rent, and conditions specified in the notice, if the tenant shall continue to hold the premises after the expiration of the month. [In effect, -when.] Sec. 2. This act shall take effect and be in force immediately after its passage. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 220; amended February 26, 1907, Stats, and Amdts. 1907, p. 58, Kerr's Stats, and Amdts. 1906-7, p. 423. See Kerr's Cyc. C. C. for 2 pars, annotation. 86 C. 433, 439, 25 P. 7, 9 (referred to); 105 C. 15, 19, 20, 38 P. 510 (applied); 4 C. A. 272, 275, 87 P. 559, 560 (cited — terms of lease, how chang-ed); 4 C. A. 422, 425, 88 P. 374 (section is confined, by its terms, to leases from month to month — case at bar was not such lease). Presumption of notice. — See Kerr's Cyc. C. C. § 19 and note; § 789 and note. 533 § g29 CIVIL, CODE. [DiV.II.Pt.II. ARTICLE II. BOUNDARIES. § 829. Rights of owner. § 830. Boundaries by water. § 831. Boundaries by ways. § 832. I^ateral and subjacent support. § 833. Trees whose trunks are wholly on land of one. § 834. Line trees. § 829. RIGHTS OF OWNER. The owner of land in fee has the right to the surface and to everything permanently sit- uated beneath or above it. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. BOITIN DAUIES — GENERALLY. Acquiescence in boundary line, effect of. — See 8 A. C. 81; 69 A. D. 711; 27 A. R. 239; 4 L. 643. Adverse possession in case of ignorance or mistake, as to. — See 21 L. 829. Agreement — Establishment by. — See 8 A. C. 81; 69 A. D. 711; 27 A. R. 239; 1 L. 214. Same — Relating to, as affecting statute of frauds.— See 8 A. C. 81. Bounding land on street or alley as covenant that street or alley exists, where grantor does not own fee thereof. — See 10 L. N. S. 964. Compromise agreement locating division line at place known not to be true boundary line, effect of. — See 10 L. N. S. 610. Conclusiveness of established. — See 110 A. S. 677. Same — Proceedings to fix upon title to land. — See 3 A. C. 1064. Same— Survey.— See 3 A. C. 140; 110 A. S. 677. Confusion of, equity jurisdiction in case of. — See 15 A. D. 745. Construction of.— See 22 A. S. 34; 30 A. S. 453. Construction of "beginning at the side of a road."— See 39 A. R. 305. Declarations— Of deceased persons as evidence of.— See 94 A. S. 678. , Same — What admissible to prove. — See 36 A. R. 749. Description, rules governing inconsistent or uncertain.— See 30 A. D. 734. 534 Tit.III,ch.I,art.II.] boundaries, generally. § 829 Domicile or residence where boundary line runs through dwelling.— See 10 L. N. S. 874. Effect of taking- possession on disputed boundaries. — See 3 L. N. S. 805. Establishment of and description. — See 1 L. 214; 1 L. 522; 4 L. 643; 13 L. 142. Fixing by estoppel. — See 1 L. 522. Fraud in declaration of opinion as to. — See 35 L. 419. Hearsay evidence regarding. — See 15 A. D. 628. Improvements by abutting owner with reference to what is mistakingly supposed to be street boundary line, estoppel of municipality from asserting true line. — See 7 L. N. S. 243. Judicial notice of. — See 82 A. S. 439. Limitations of actions founded on mistakes in. — See 62 A. D. 527. Location of by acquiescence or agreement. — See 8 A. C. 81; 69 A. D. 711; 27 A. R. 239; 4 L. 643. Map as affecting description. — See 13 L. 142. Natural monuments as. — See 8 A. C. 81. Navigable rivers as. — See 10 A. D. 385. Of mining claim. — See 7 L. N. S. 851. Of state or other municipalities — Upon waters. — See 15 L. 187; 23 L. 520; 45 L. 243; 65 L. 953. On highways, as to. — See 4 L. 624. On waters — As to, generally, 8 L. 579; 42 L. 502; 51 L. 178. Same — Change of by sudden submerging of land. — See 38 L. 850. Same — Effect of bounding grant on river or tide water. — See 42 L. 502. Parole agreement establishing boundary line, as affected by statute of frauds. — See 8 A. C. 83. Possession taken and held beyond through mistake or igno- rance.— See 24 A. S. 388. Proof of by declarations and other hearsay testimony. — See 60 A. R. 589. Property right in trees on. — See 82 A. D. 330; 21 L. 729. Right to inspect public records as to. — See 27 L. 84. Right to rely upon representations as to. — See 37 L. 610. Same — Effect of fraud in representation. — See 35 L. 419. Settlement of — By agreement or acquiescence, effect of. — See 8 A. C. 81; 69 A. D. 711; 27 A. R. 239; 4 L. 643. Same— By parol.— See 13 A. D. 224. Same — Disputed by an express or Implied agreement. — See 27 A. D. 121. Streets or highways, when included within. — ^See 54 A. D. 797. Suits to ascertain and declare. — See 119 A. S. 66. Surplusage, what may be rejected as. — See 40 A. D. 109. 535 §§ 830, 831 CIVIL CODE. [Div.II.Pt.II. Surveys, construction of, and establishing lost corners. — See 22 A. S. 34. Trees growing on or near, rights of adjoining proprietors to. — See 82 A. D. 330; 21 L. 729. Water lots, running side lines of. — See 23 A. D. 536. Waters and watercourses as. — See 30 A. D. 286; 27 A. S. 56. §830. BOUNDARIES BY WATER. Except where the 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 high-water mark; when it borders upon a navi- gable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark; when it borders upon any other water, the owner takes to the mid- dle of the lake or stream. Hl.story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 220; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 393, held uncon- stitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 43 pars, annotation. 69 C. 122, 127, 10 P. 323, 326 (this and § 670 are but declara- tion of pre-existing law); 99 C. 303, 308, 33 P. 1099 (conveyance by state of lands bounding upon sea, or upon bay or navigable stream, would extend to high-water mark); 108 C. 179, 185 (erroneously cited as § 880), 49 A. S. 76, 41 P. 289 (correct citation); 138 C. 423, 425, 71 P. 496 (whether or not this sec- tion is applicable to case depends upon evidence). Bridges over navigable streams — How must be construed. — See Kerr's Cyc. Pol. C. § 2875 and note. Flotation of logs — Test of navigability — Enumeration of streams. — See Kerr's Cyc. Pol. C. § 2349 and note. Public ferries and toll-bridges. — See Kerr's Cyc. Pol. C. §§ 2843-2895 and notes. §831. BOUNDARIES BY WAYS. An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 69 C. 202, 206, 10 P. 510, 512 (construed and applied); 70 C. 534, 540, 12 P. 530, 533 (applied); 95 C. 661, 665, 30 P. 793, 794 (applied); 41 P. 14 (applied); 131 C. 96, 99, 63 P. 143 (cited); 536 Tit.III,ch.I,art.II.] lateral support. §§832,833 151 C. 425, 431, 90 P. 1053 (applied to strip of land granted as a highway). Waters as boundaries. — See Kerr's Cyc. C. C. § 830 and note. §832. LATERAL AND SUBJACENT SUPPORT. Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction, on using ordinary care and skill, and taking reasonable precautions to sustain the land of the other, and giving previous reasonable notice to the other of his intention to make such excavations. History: Enacted March 21, 1872; amended March 30, 1874,' Code Amdts. 1873-4, p. 221. This section as originally enacted was taken from proposed Civil Code of New York.- — 98 C. 346, 348, 33 P. 209, 20 L. 730. South Dakota Comp. Laws, § 2784, an exact copy of this section.— See 9 S. D. 412, 69 N. W. 585. Utah Comp. Laws, § 2784, is substantially the same as this section, except that it omits the words "in its natural con- dition" and also the words "when improved." — 2 S. D. 285, 49 N. W. 1054. See Kerr's Cyc. C. C. for 64 pars, annotation. 63 C. 269, 271, 272, 273, 274, 276 (construed and applied); 92 C. 96, 98, 28 P. 97, 98 (applied); 92 C. 600, 603, 604, 28 P. 809, 810 (construed); 95 C. 494, 499, 30 P. 762 (construed); 98 C. 346, 348, 349, 33 P. 209, 20 L. 730 (construed and applied); 105 C. 52, 57, 45 A. S. 25, 38 P. 539, 540 (applied); 128 C. 501, 503, 61 P. 96, 97 (applied); 147 C. 609, 611, 109 A. S. 178, 82 P. 241, 2 L. N. S. 796 (what ordinance is not in conflict with this section). Party-wall— Rig-ht to use.— See Kerr's Cyc C. C. § 801, subd. 12 and note. Respective rights and liabilities of adjoining- owners in respect to party-walls. — See 19 L. 240. Right by prescription for lateral support of buildings. — See 20 L. 730, 731; 66 A. D. 648. § 833. TREES WHOSE TRUNKS ARE WHOLLY ON LAND OF ONE. Trees whose trunks stand wholly upon the land 537 § 834 CIVIL CODE. [Div.II,Pt.II. of one owner belong exclusively to him, although their roots grow into the land of another. HlMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. Ownership of soil upwards usque ad coelum. — See Kerr's Cyc. C. C. § 829 and note. Rights of adjoining proprietor where tree grows on or near boundary line. — See 82 A. D. 330, 331. § 834. LINE TREES. Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common. HlNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars annotation. 7 C. A. 39. 40, 93 P. 383 (cited). Overhanging branches — Fruit belongs to owner of tree. — See Kerr's Cyc. C. C. § 832, note par. 2. Rights of adjoining proprietor wliere tree grows on or near boundary line. — See 82 A. D. 330. 331. 538 Tit.III,ch.II.] MONUMENTS AND FENCES. §§ 840, 841 CHAPTER II. OBLIGATIONS OF OWNERS. § 840. Duties of tenant for life. § 841. Monuments and fences. § 842. Owners of ditches, flumes, etc. Liability to each other. § 843. Neglect to pay proportion of expenses; liability in action. § 840. DUTIES OF TENA^NT FOR LIFE. 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, and a just proportion of extraordinary assessments benefiting the whole inheritance. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 136 C. 514, 518. 69 P. 146 (applied). Improvements — Allowance to life tenant for. — See 81 A. S. 182. Rights of tenant for life. — ^See Kerr's Cyc. C. C. § 818 and note. Termination of life estate by death — Decree declaring-. — See Kerr's Cyc. C. C. P. § 1723 and note. Waste — Definition of. — See Kerr's Cyc. C. C. § 818 and note par. 13. Same — Treble damages recoverable. — See Kerr's Cyc. C. C. P. § 732 and note. §841. MONUMENTS AND FENCES. Coterminous owners are mutually bound equally to maintain: 1. The boundaries and monuments between them; 2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he after- wards incloses it, he must refund to the other a just propor- tion of the value, at that time, of any division fence made by the latter. History: Enacted March 21, 1872. This secti'on is apparently based on 1 Rev. St. N. Y. 350, § 30. — See 9 How. Pr. (N. Y.) 453, 455. As to lawful fence in counties named, see Act 1850, as amended by Act April 3, 1860 (Stats. 1860, p. 141). — Gonzales vs. Wasson, 51 Cal. 295, 297. See Hen. G. L. tit. Fences. See Kerr's Cyc. C. C. for 40 pars, annotation. 51 C. 295, 297, 298 (construed); 67 C. 591, 593, 8 P. 311 (con- strued); 103 C. 43, 45, 36 P. 1029 (construed and applied); 103 539 § 841 CIVIL CODE. [DiV.II.Pt.II. C. Ill, 117, 37 P. 192 (provision for division fences — constitu- tionality of act concerning); 119 C. 526, 527, 51 P. 848 (con- strued and applied). As to fences generally, see 12 Encyc. L. 1035. Constittitionallty of statute giving fence viewers power to assign division fences between owners to maintain. — See 8 A. C. 426. Covenants to build fences, whether run with the land. — See 56 A. R. 161. Division of partition fences between land owners. — See 23 Cent. Dig. col. 818, §§18-28; 9 Decen. Dig. p. 1013, §§11-13. Duty to erect and maintain partition fences. — See 23 Cent. Dig. col. 799, §1; col. 805; §§1-17; 9 Decen. Dig. p. 1011, § 1; 9 Decen. Dig. p. 1012, §§5-10; see "Partition fences," this note. Failure to erect or maintain partition fence. — See 23 Cent. Dig. col. 817, § 16; col. 837, § 39; 9 Decen. Dig. p. 1016, § 17. Fencing* material, not actually attached to land as fixttire. — See 69 L. 901. Injunction to compel or prevent the erection, maintenance, or removal of fences. — See 7 L. N. S. 49. Lack of division fences as affecting liability for damages by trespassing cattle. — See 9 A. C. 1095; 22 L. 60. Lawful fence — What constitutes under act April 3, 1860 (Stats. 1860, p. 141, amendatory of act April 27, 1885). — See Hen. G. L. tit. Fences. Liability for permitting another's livestock to escape from pasture by failure to keep proper division fence, extent of. — See 20 L. 479; 12 L. N. S. 912. Partition fences. — See 68 A. D. 626. game^Definition of. — See 68 A. D. 626; 6 W. & P. 5190. Same—Duty to erect and maintain. — See "Duty to erect," etc., this note. Same — Liability for injuries arising from defects in. — See 54 A. S. 513. Same — Proceedings to compel erection thereof. — See "Pro- ceedings," etc., this note. Party walls — Provisions as to. — See 'Kerr's Cyc. C. C. § 801 and note. Prescriptive right to maintain fence. — See 53 L. 901. Proceedings to compel erection of partition fence or con- tribution thereto. — See 23 Cent. Dig. coL 1826, §§29-44; 9 Decen. Dig. p. 1014, §§ 14-16. Railroad fences. — See note § 454, ante; 3 A. C. 182. Right of tenant to cut wood for fence. — See 68 L. 641. Right to enjoin adjoining land owner from maliciously erect- ing or maintaining fence of unusual height. — See 9 A. C. 734; see also 40 L. 177. Statutes formerly in force preserved. — See Kerr's Cyc. Pol. C. § 19 subd. 23 and note. 540 Tit.III,ch.II.] DITCHES, ETC.— EXPENSE. §§ 842, 843 Statutory provisions concerning rights of adjoining owners. — See 12 L. 601. Sufficiency of fences. — See 22 L>. 105. Unlawful removal of fence. — See 12 L. 601. Same — Liability for consequential injuries from. — See 53 L. 629. Waters as boundaries. — See Kerr's Cyc. C. C. § 830 and note. Ways as boundaries. — See Kerr's Cyc. C. C. § 831 and note. §842. OWNERS OF DITCHES, FLUMES, ETC. LIABIL- ITT TO EACH OTHER. When two or more persons are asso- ciated by agreement in the use of a ditch, flume, pipe-line or other conduit for the conveyance of water, or who are using such ditch, flume, pipe-line or other conduit, or any part thereof, for the irrigation of land or for any other lawful purpose, to the construction of which they or their grantors have contributed, he is liable to the others for the i-easonable expenses of maintaining and repairing the same, and of dis- tributing such water in proportion to the share to which he is entitled in the use of the water. History: Proposed by Code Commission and enacted March 16, 1901, Stats. Amdts. 1900-1, p. 393, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 600. §843. NEGLECT TO PAY PROPORTION OF EXPENSES; LIABILITY IN ACTION. If any one of them neglects, after demand in writing, to pay his proportion of such expenses, he is liable therefor in an action for contribution, and in any judgment obtained against him interest from the time of such demand must be included. The action authorized by this sec- tion must be brought by any or all of the parties who have contributed more than his or their just proportion of such expenses, and may be joint or several, and therein plaintiff may recover as costs, reasonable counsel fees, to be fixed by the court. History: Proposed by Code Commission and enacted Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 393, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 600. 541 § 847 CIVIL CODE. [Div.II.Pt.II. TITLE IV. USES AND TRUSTS. § 847. What uses and trusts may exist. § 848. Right to possession of land creates legal ownership [repealed]. § 849. Certain trusts unaffected [repealed]. § 850. Trustees of estate for use of another take no interest [repealed]. § 851. Preceding sections qualified [repealed], § 852. Trust must be in writing. § 853. Transfer to one for money paid by another. [Trust presumed.] § 854. Rights of creditors [repealed]. § 855. Section eight hundred and fifty-three qualified [repealed]. § 856. Purchasers protected. § 857. For what purposes express trusts may be created. § 858. Vesting of mortgage powers. § 859. Profits of land liable to creditors in certain cases. § 860. Exercise of vested power. § 861. Creation of certain powers not prohibited [repealed]. § 862. Land, etc., to descend to persons entitled [repealed]. § 863. Trustees of express trusts to have whole estate. § 864. Author of trust may devise, etc. § 865. Title of grantor of trust property. § 866. Interests remaining in grantor of express trust. § 867. Restraining disposition of trusts. § 868. Powers over trust of party interested [repealed]. § 869. Effect of omitting trust in conveyance. § 870. Certain sales, etc., by trustees, void. § 871. When estate of trustee to cease. §847. WHAT USES AND TRUSTS MAY EXIST. Uses and trusts in relation to real property are those onlj'^ which are specified in this title. History: .Enacted March 21, 1872. See history to § 857 post. See Kerr's Cyc. C. C. for 46 pars, annotation. 58 C. 457, 478, 481 (construed and applied in connection with §857); 80 C. 237, 242, 22 P. 167, 169 (applied); 107 C. 587, 595, 40 P. 810 (applied in connection with other sections) ; 116 C. 405, 409, 48 P. 622 (construed with § 857 — express trust can- not be created to sell realty for benefit of legatees); 124 C. 418, 542 Tit. IV.] USES AND TRUSTS. § §47 421, 57 P. 219 (applied); 132 C. 523, 527, 551, 557, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed and applied in connection with §857); 139 C. 682, 684, 73 P. 604, 606 (applied in connection with §857); 140 C. 48, 51, 73 P. 748 (construed and applied In con- nection with §857); 3 C. A. 741, 747, 86 P. 1108 (referred to — competency of Masonic lodge to accept trust imposed upon it by terms of decree of distribution); 11 F. 253, 261 (applied with other sections to conveyance in trust to secure railway mort- gage bonds). USES AND TRUSTS. As to certainty of charitable trusts, necessity, see 64 A. S. 756, 762; 4 L. 699. As to charitable trusts in general, see 4 L. 699; brief and note 6 L. 511. As to charitable uses and trusts, see Kerr's Cyc. C. C. § 711 and note part III. As to definition of passive and special trusts, see 98 A. D. 355; 6 W. & P. 5227; 7 W. & P. 6594. As to evidence to establish trust, see 6 L. 47. As to necessity of writing to create a charitable trust, see Kerr's Cyc. C. C. § 852 and note. As to restraints upon alienation, see Kerr's Cyc. C. C. §§ 715-718 and notes; also ante § 715 and note. As to restrictions on power to devise to charitable institu- tions, see Kerr's Cyc. C. C. § 1313 and note. As to secret trusts for charity, see 20 L. 465-477. Ae to secret trusts to use of masses. — See 25 L. 360; 40 L. 717-722. As to simple effect of a trust, see 98 A. D. 356. As to trusts for religious purposes, see 65 A. S. 118, 121; 3 L. 145, 149; 5 L. 104-109. As to trusts for the accumulation of income, see Kerr's Cyc. C. C. §§ 722-726 and notes; also § 722 ante. As to trusts under will, see 2 Church's New Probate Law and Practice 1427, 1433. As to validity of bequests for superstitious or religious uses, see 39 A. R. 738-750. Same — Validity of trust to propagate a particular religious belief, see 6 L. N. S. 320-323. As to what are public charities, see 1 L. 417; 3 L. 145; 5 L. 33; 5 L. 104; 6 L. 84; 12 L. 414; 6 W. & P. 5778-5780. As to when devises and bequests for charity are valid or void for uncertainty, see 1 A. S. 415; 4 L. 699. Accounting of trustees under will and distribution of prop- erty.— See 8 A. C. 1176; 7 L. 570; 27 L. 821; 2 Church's New Probate Law and Practice 1433-1454; 2 Obiter Dig. 886. Applicability of rule in Shelley's Case to executory trusts. — See 2 L. 458. ' 543 § 847 CIVIL CODE. [Div.II.Pt.II. Care-taker of trustee to sell real estate. — See 3 L. N. S. 415. Chang-e of trustees. — See 2 Obiter Dig. 888. Classification of trusts. — See 100 A. S. 586; 8 L. 647; 8 W. 6 P. 7121. Constructive trust in deed of homestead by husband to wife, with proviso attempting to derogate from her right of survivor- ship. — See 1 L. N. S. 312. Conveyance by trustee and its effect. — See 64 A. D. 199. Corporation as trustee. — See 11 L. 715. Creation of trust by use of words "upon condition" in will or conveyance of real property. — See 9 L. N. S. 758. Dealing with trust or cestui que trust — Right and liabilities of trustee.— See 5 L. 166; 6 L. 369; 9 L. 792; 13 L. 491; 37 L. 613. Debt distinguished. — See 2 W. & P. 1885. Definition of trust. — See 2 Obiter Dig. 879, 8 W. & P. 7019. Discretion of trustee, control of by courts of equity. — See 6 A. S. 885. Distinction between executory and executed trusts. — See 2 Obiter Dig. 879, 880. Duty — Of purchaser from life tenant, trustee, or other donee of power to sell, to see to application of purchase money. — See 4 A. C. 376. Same — Of trustee. — See 8 A. C. 1176. Effect — Of investment by husband in his own name of wife's separate property in real estate, to create a trust in her favor. — See 6 L. N. S. 381. Same — Effect of statute of limitations on sucli trust. — See 12 L. N. S. 493. Same — Of notice to trustees in trust deeds of fraudulent intent of grantor. — See 31 L. 642. Same — Of specifying use of real estate in devising to religious society, as creating a trust. — See 1 L. N. S. 512; 1 L. N. S. 520; 7 L. N. S. 1119. Same — Upon trust of death of donor without exercising power of revocation. — See 6 A. C. 189. Embracing share of heir, devisee or legatee with constructive trust cause of is a fraud in frustrating decedent's intention to give the property to a third person. — See 8 L. N. S. 628. Enjoining unlawful share of church property by trustee. — See 2 L,. N. S. 828; 3 L. N. S. 860. Equitable — Control by court of discretion vested in trustee. — See 8 L. N. S. 398. Same — Enforcement of, as affected by statute of frauds. — See 5 L. N. S. 112. Essentials of trusts. — See 31 A. S. 637; 15 L. 470; 8 W. & P. 7121. Establishment of stale interests. — See 2 Obiter Dig. 888. 544 Tit. IV.] USES AND TRUSTS. § 847 Executory trusts, applicability of rule in Shelley's Case to. — See 2 L. 458. Failure — For want of trustee. — See 2 Obiter Dig-. 882. Same — Of object of purposes of.- — See 2 Obiter Dig-. 882. Fiduciary relation of trxistee and beneficiary. — See 16 A. D. 616. Foreig-n— .Corporation as trustee. — See 24 L. 291. Same — Security company, power to act as trustee. — See 48 L. 593. Implied constructive and resulting- trusts — As to, see 2 L. 146; 5 L. 189; 10 L. 401; 20 L. 109; 27 L. 468; 58 L. 115. Injunction against execution sale of trust property. — See 31 L. 119. Insurable interest of husband, as trustee, in wife's property. — See 66 L. 659. Intention to create a trust necessary. — See 15 A. S. 351. Judgment against trustees, conclusiveness of upon benefi- ciaries. — See 34 A. D. 722; 73 A. S. 164. Jurisdiction and province of equity over. — See 2 Obiter Dig. 887. Laches as a bar to enforcement of trust as against one who knowingly purchased trust property in violation of the terms of an express trust. — See 7 L. N. S. 370. Legal right and use in same party, effect of. — See 2 Obiter Dig. 879. Liability- — 'Of beneficial interest to creditors. — See 1 Obiter Dig. 881. Same — Of one co-trustee for the acts and defaults of another. —See 42 A. D. 288. Same — Of trustee. — See 2 Obiter Dig. 886. Liens against trust estate in favor of creditors or trustees. — See 19 A. S. 67. Majority of trustees may act when. — See 11 A. D. 674. Necessity of beneficiary's knowledge of trust. — See 10 L. N. S. 616. No particular form of words necessary to create. — 'See 2 Obiter Dig. 879. Parol — Creation of trust in land. — See 115 A. S. 775. Same — Trust, how far within statute of frauds. — See 10 L. 401. Particular words unnecessary to create trust. — See 1 A. R. 34; 8 W. ■& P. 7122. Party dealing with trustee, duty of. — -See 2 Obiter Dig 885. Power distinguished. — See 8 W. & P. 2123. Power of court — To change number of trustees designated in trust instrument. — See 1 L. N. S. 802. Same — To increase or diminish number of trustees appointed by grantor of trusts. — See 6 A. C. 598. Same — To remove trustee who becomes unsuitable for execu- tion of trust. — See 6 A. C. 596. Kerr's C. C. — 18 545 § 847 CIVIL CODE. [Div.II.Pt.II. Power of corporation to act as trustee of charitable trust. — See 8 A. C. 1181. Power of married woman to act as trustee of express trust. — See 7 A. C. 1082. Power of trustees of. — See 2 Obiter Dig. 882-884. Same — An express trust to sue without joining beneficiaries — Scope of statutory provisions as to. — See 6 L. N. S. 275. Same — To convey trust property without consent of co-trustees. — See 4 A. C. 953. Same— To expend principal of trust fund. — See 8 A. C. 1176. Same — To mortgage trust estate for purposes of improve- ments so as to render the estate productive. — See L. N. S. 263. Same — To mortgage trust property. — See 1 A. C. 942; 9 A. C. 643; 10 A. C. 245. Same — Under control to make a ninety-year lease of the trust realty. — See 2 A. C. 787. Powers, duties and liabilities of trustees, generally, see 4 L. 529; 7 L. 570; 9 L. 279; 13 L. 212; 27 L. 821; 29 L. 622; 51 L. 486; 57 L. 688; 63 L. 227. Precatory trusts, when created. — See 44 A. D. 372; 106 A. S. 499; 6 L. 353; 7 L. 394; 7 L. 519; 13 L. 563. Provision against alienation of cestui que trust. — See 2 L. 113. Revocation of deed of trust, power of. — See 20 A. S. 858. Rights — Of beneficiaries. — See 2 Obiter Dig, 884, 885. Same — Of cestui que trust as to trust property mingled with that of insolvent trustee. — See 7 A. C. 553. Same — Of trustee — Compensation and indemnity. — See 2 Obiter Dig. 884. Sales and conveyances by trustees. — See 19 A. S. 266. Same — Under powers in trust deeds to secure money. — See 92 A. S. 573. Same — When power of vests in trustee by implication. — See 87 A. D. 209. Severability of trusts from perpetuities and forbidden trusts. — See 64 A. S. 634. Statute — Of limitations as affecting. — See 27 A. S. 473; 2 Obiter Dig. 882; 8 W. & P. 7124. Same — Regulating uses and trusts. — See 4 L. 140. Sufficiency of declaration to establish voluntary trust where legal title is retained by trustor. — See 12 L. N. S. 547; Suitability of trustees. — See 2 Obiter Dig. 888. Taxation of trust property, place of. — See 20 L. 151. Termination and revocation of. — See 1 L. 319; 1 L. 328; 8 L. 480; 18 L. 745. Same — Power to revoke or set aside voluntary. — See 15 L. 75. Termination of trust and presumption of conveyance by trustee to beneficiary. — See 58 A. D. 472. To whom property passes on trustee's death. — See 1 L. 334. 546 Tit. IV.] USES AND TRUSTS. §§ 848-850 Trustee ex maleflcio.— See 2 Obiter Dig. 881. Trusts — For absent persons and those not in being. — See 2 Obiter Dig. 881. Same — Within the rule against perpetuities. — See 49 A. S. 128. Use distinguished. — See 8 W. & P. 7123. Uses and trusts, statute regulating. — See 4 L. 140. Validity of acknowledgment of deed of, taken by trustee. — See 16 L. 719. Voluntary trusts arising from the declaration of trustor.— See 34 A. S. 189. When legal estate vests in beneficiary under the statute of uses. — See 78 A. D. 416. Where trustee's sale to be made. — See 33 L. 96. Who are or may be trustees and removal thereof. — See 1 L. 79; 8 L. 648; 11 L. 715; 14 L. 69; 16 L. 695; 24 L. 291; 48 L. 593. Who may be appointed trustee by donee of power to appoint. —See 4 A. C. 405. §848. RIGHT TO POSSESSION OF LAND CREATES LEGAL OWNERSHIP (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. 132 C. 523, 535, 84 A. S. 70, 60 P. 442, 64 P. 1000 (repealed — wording of section). As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427-1433. As to uses and trusts generally, see note § 847 ante. §849. CERTAIN TRUSTS UNAFFECTED (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. 132 C. 523, 535, 84 A. S. 70, 60 P. 442, 64 P. 1000 (repealed — referred to same subject as § 848.) As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427-1433. As to uses and trusts generally, see note § 847, ante. § 850. TRUSTEES OF ESTATE FOR USE OF ANOTHER TAKE NO INTEREST (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. 132 C. 523, 535, 84 A. S. 70, 60 P. 442, 64 P. 1000 (repealed — referred to same subject as § 848.) 547 §§851,852 CIVIL CODE. [Div.II.Pt.II. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427-1433. As to uses and trusts generally, see note § 847, ante. §851. PRECEDING SECTIONS QUALIFIED (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. 182 d'"523, 535, 84 A. S. 70, 60 P. 442, 64 P. 1000 (repealed — referred to same subject as § 848). As to trusts under wills see 2 Church's New Probate Law and Practice, 1427-1433. As to uses and trusts generally, see note § 847, ante. § 852. TRUST MUST BE IN WRITING. No trust in rela- tion 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 affected; or, 3. By operation of law. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 411 pars, annotation. 58 C. 457, 483 (construed and applied); 70 C. 449, 452, 11 P. 659, 661 (construed and applied in connection with other sec- tions); 16 P. 535, 537 (construed and applied); 75 C. 525, 526, 7 A. S. 189, 17 P. 689, 690 (construed and applied); 76 C. 469, 471, 9 A. S. 242, 18 P. 429, 430 (construed and applied in connection with other sections); 80 C. 514, 518 (applied but miscited as §853), 22 P. 294, 295 (correct citation); 85 C. 436, 446, 25 P. 22, 23, 24 (construed and applied with § 853); 88 C. 560, 565 (applied but erroneously cited as §82), 26 P. 367, 368 (correct citation); 90 C. 603, 607, 27 P. 516, 517 (construed and applied); 94 C. 69, 72. 29 P. 487 (construed); 31 P. 355, 357 (construed and applied); 97 C, 259, 261, 32 P. 171 (construed and applied in connection with other sections); 99 C. 311, 314, 33 P. 929 (applied); 108 C. 627, 656, 49 A. S. 97, 41 P. 772 (referred to in discussion); 110 C. 1, 5, 42 P. 300 (referred to); 112 C. 279, 284, 44 P. 565 (con- strued and applied); 118 C. 102, 107, 50 P. 386 (applied); 122 C, 19, 25, 54 P. 370 (referred to — trust in personal property need not be in writing — ^No set form of words is necessary to create trust); 122 C. 426, 427, 55 P. 143 (applied); 124 C. 418, 421, 57 P. 219 (construed and applied with other sections); 126 C. 189, 192, 58 P. 543 (construed and applied); 132 C. 21, 27, 63 P. 1071 548 II Tit. IV.] CREATION OP TRUST. § 852 (construed and applied); 135 C. 277, 279, 67 P. 129 (referred to in discussion); 136 C. 92, 96, 68 P. 482 (construed and applied); 136 C. 153, 155, 68 P. 579 (applied); 136 C. 631, 634, 69 P. 428 (construed); 147 C. 384, 389, 81 P. 1077 (referred to — what ex- press trusts are not mortg-ages) ; 150 C. 710, 713, 89 P. 971 (lias no application to resulting trusts — they may be estalilished by parol); 127 U. S. 300, 312, 32 L. ed. 138, 143 (this and various other sections construed tog'ether as merely declaratory of pre- existing law). As to acceptance of trust by beneficiary, see 46 A. D. 81; 34 A. S. 214; 28 Encyc. L. 895. As to admissibility of parol evidence in express or resulting trusts, see 10 L. 401; 24 A. D. 413-417; 26 A. D. 60; 36 A. D. 182; 38 A. D. 182; 43 A. D. 624; 63 A. D. 42; 70 A. D. 258; 90 A. D. 270; 82 A. S. 517. As to certainty in the subject-matter of precatory trusts, see 44 A. D. 372, 376. As to certainty of the objects or persons to be benefited by precatory words, see 44 A. D. 372, 377. As to creation of express trusts, see 1 L. 327; 11 L. 456; 12 L. 667; 31 A. R. 453-455; 34 A. S. 216; 82 A. S. 513. As to the creation of resulting trusts, see 2 L. 146. As to declarations of trusts, see Kerr's Cyc. C. C. § 2253 and note. As to designation of beneficiaries, see 61 A. S. 623. As to effect of depositing' money in bank in trust for third person, see 32 L. 373-375; 33 L. 700; 39 L. 800; 44 L. 205. As to how far parol trusts are within the statute of frauds, see 10 L. 401. As to intention in the creation of precatory trusts, see Kerr's Cyc. C. C. § 852, note pars. 254-259. See post § 2221 note pars. 25-28. As to letters admitted to prove trust, see Kerr's Cyc. C. C. § 852, note pars. 146, 147 this note. As to letters not sufficient to create, see Kerr's Cyc. C. C. § 852, note par. 211. As to manifestation of fact of creation and of nature of trust by writing, see Kerr's Cyc. C. C. § 852, note pars. 144, 145; also §§ 2215-2217 and notes. As to necessity of consideration in creation of trusts, see 11 L. 456. As to notification of beneficiaries, see 28 Encyc. L. 895. As to parol trust and requirement of writing', see 28 Encj'c. L. 869, 877. As to parol trust of in land, see Kerr's Cj'c. C. C. § 852, note pars. 100-112. As to resulting trusts arising from fraud, undue influence, etc., see Kerr's Cyc. C. C. § 2224 and note. 549 § 852 CIVIL CODE. [Div.II.Pt.II. As to resulting trusts in favor of purchaser or person pay- ing purcliase money, see Kerr's Cyc. C. C. § 1853 and note. As to right to follow trust fund, see Kerr's Cyc. C. C. §§ 2229. 2236 and notes. As to right to use of trust property as his own, and mingling with his own, see Kerr's Cyc. C. C. §§ 2229, 2236 and notes. As to trust in deposit in insolvent bank, see 34 L. 532-537. As to trust in favor of party paying purchase money, see Kerr's ^Cyc. C. C. §853 and note. As to trust in partnership real estate, see Kerr's Cyc. C. C. § 853 and note. As to trusts arising from fraud, etc., see Kerr's Cyc. C. C. § 2224 and note. As to trusts created by fraud, etc., see Kerr's Cj'c. C. C. § 2224 and note. As to trusts created in favor of party paying purchase money, see Kerr's Cyc. C. C. § 853 and note. As to trusts created through fraud, etc., see Kerr's Cyc. C. C. § 2224 and note. As to trusts implied to effectuate the purpose of a contract when its terms cannot be given effect to, see 58 L.. 115. As to trusts in favor of party advancing purchase money, see Kerr's Cyc. C. C. § 853 and note. As to trusts in partnership real estate, see Kerr's Cyc. C. C. § 853 and note. As to trusts obtained by fraud, etc., see Kerr's Cyc. C. C. § 2224 and note. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427-1433. As to trusts where one has more than his share, see Kerr's Cyc. C. C. § 853 and note. As to uses and trusts generally, see note § 847, ante. As to what constitutes declaration of trxist, see Kerr's Cyc. C. C. § 2253 and note. As to what words do or do not create precatory trust, see 44 A. D. 372, 379; 33 A. R. 293; 48 A. R. 494, 499; 6 L. 354. As to when constructive trusts arise, see 5 L. 189. As to when precatory trust arises in favor of children, see 48 A. R. 494, 499. As to when real estate will be considered partnership prop- erty and as to when resulting and implied trusts are created in the purchase of such property, see 27 L. 449-497. For the earlier American cases on the subject of precatory trusts, see 44 A. D. 372, 377. For the later American and Englisli cases on precatory trusts, see 44 A. D. 372, 379. 550 II Tit. IV.] TRUST PRESUMED, WHEN. § 353 §8o3. TRANSFER TO OJfE FOR MONET PAID BY ANOTHER. [TRUST PRESUMED.] When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 221. See Kerr's Cyc. C. C. for 118 pars, annotation. 67 C. 255, 256, 7 P. 676, 677 (applied); 67 C. 325, 327, 7 P. 741 (construed and applied); 68 C. 116, 120, 122, 8 P. 804 (ap- plied); 74 C. 85, 91, 15 P. 439, 442 (applied but miscited as §353); 75 C. 166, 170, 16 P. 766, 768 (applied); 77 C. 330, 338, 19 P. 513, 516 (applied); 80 C. 514, 518 (erroneously cited fof §852), 22 P. 294, 295 (correct citation); 85 C. 436, 446, 25 P. 22, 23, 24 (construed and applied); 92 C. 9, 13, 28 P. 50, 51 (applied); 122 C. 114, 116, 54 P. 536 (applied); 127 C. 245, 247, 59 P. 699 (construed and applied); 132 C. 21, 28, 63 P. 1071 (applied); 134 C. 603, 605, 65 P. 321, 66 P. 860 (applied); 136 C. 92, 95, 96, 68 P. 482 (construed and applied); 136 C. 460, 463, 69 P. 83 (applied with other sections); 138 C. 564, 569, 72 P. 178 (payment of purchase price by one and transfer to another establishes a "resulting trust"); 142 C. 59, 69, 75 P. 649 (referred to); 144 C. 329, 334, 77 P. 937 (applied); 144 C. 528, 533, 534, 78 P. 25 (construed and applied); 146 C. 134, 137, 79 P. 843 (establishment of resulting trust by parol not- withstanding recital of money consideration — cases where trusts sought to be established were in favor of grantor dis- tinguished) ; 2 C. A. 479, 483, 84 P. 326 (applied); 3 C. A. 493, 495, 86 P. 618 (applied — constructive trust arising from fraud); 7 C. A. 429, 431, 94 P. 591 (referred to— gifts to another man's wife). As to agreement to purchase on joint account and enforce- ment of trust in favor of party paying purchase money, see note 2 John. Ch. (N. Y.) 405, bk. 1 L. ed. 428. As to disproving payment of consideration to create result- ing trust in favor of grantor, see 90 A. D. 277. As to exception of implied trust from statute of frauds, see 9 A. S. 530. As to nature of evidence to prove resulting trust, see 98 A. D. 311. As to parol evidence to prove resulting trust, see note 2 John. Ch. (N. T.) 404, bk. 1 L. ed. 426. As to parol evidence to show resulting trust, see 65 A. D. 182. 551 §§ 854-856 CIVIL CODE. [Div.II.Pt.II. As to presumption arising from paymont of purcViase money, see 50 A. D. 624, 51 A. D. 753. As to resulting trust from purcliase agent, see note 2 John. Ch. (N. Y.) 404, bk. 1 L. ed. 426. As to resulting trust from purchase in name of wife or son, see 51 A. D. 754. As to resulting trust in land purchased by anotlier, see note 2 John. Ch. (N. Y.) 404, bk. 1 L. ed. 426. As to resulting trust in purchase with partnership funds, see note 2 John. Ch. (N. Y.) 404, bk. 1 L. ed. 426; and 27 L. 449-497. As to resulting trusts arising from purchase by partner of real estate in his own name with partnership funds, see 27 L. 449-497. As to resulting trusts from advancing purchase money, con- vej'^ance without consideration or part payment of considera- tion, see 51 A. D. 752-758. As to resulting trusts in general, see Kerr's Cyc. C. C. § 852 and note. As to resulting trusts where land is purchased by an agent and deed taken in his own name, see 9 A. S. 530. As to resulting trusts where several persons furnish pur- chase money, see 50 A. D. 724. See Kerr's Cyc. C. C. § 2217 and note. As to trusts under wills, see 2 Churcli's New Probate Law and Practice, 1427-1433. As to uses and trusts generally, see note § 487, ante. §854. RIGHTS OF CREDITORS (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. See Kerr's Cyc. C. C. for 2 pars, annotewtion. As to uses and trusts generally, see note § 847, ante. §855. SECTION EIGHT HUNDRED AND FIFTY-THREE QUALIFIED (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. § 856. PURCHASERS PROTECTED. No implied or result- ing trust can prejudice the rights of a purchaser or encum- brancer of real property for value and without notice of the trust. History: Enacted March 21, 1872. 552 A '!> Tit. IV.] EXPRESS TRUST, PURPOSES. § 857 See Kerr's Cyc. C. C. for 83 pars, annotation. 74 C. 85, 91, 15 P. 439, 442 (construed and applied); 96 C. 298, 307, 31 A. S. 209, 31 P. 166 (construed and applied with other sections); 115 C. 330, 335, 42 P. 418, 47 P. 52 (construed and applied); 128 C. 362, 365, 60 P. 925, 926 (construed and applied). As to application of maxim caveat emptor, see 61 A. D. 353, 90 A. D. 424. As to constructive notice, see Kerr's Cyc. C. C. § 19 and note. As to conveyajice by trustee and its effect, see 64 A. D. 199. As to duty to make inquiry, see Kerr's Cyc. C. C. § 19 and note pars. 10-27. As to how far bona fide purchaser from trustee is pro- tected, see 47 A. D. 637. As to position of purchasers from trustees with or without notice of trust, see 63 A. S. 469, and Kerr's Cyc. C. C. § 869 and note. As to receiving trust property with notice, see 2 L. 481. As to sales and conveyances by trustees, see 19 A. S. 266. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427-1433. As to uses and trusts generally, see note § 487, ante. As to when purchaser of trust property is chargeable with trust, see 32 A. D. 705, 40 A. D. 210, 212. As to when sales or transfers bj^ trustee are void, see Kerr's Cyc. C. C. § 870 and note. §857. FOR WHAT PURPOSES EXPRESS TRUSTS MAY BE CREATED. Express trusts may be created for any of the following purposes: 1. To sell real property, and apply or dispose of the pro- ceeds in accordance with the instrument creating the trust. 2. To mortgage or lease real property for the benefit of annuitants or other legatees, or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of real property, and pay them to or apply them to the use of any person, whether ascertained at the time of the creation of the trust or not, for himself or for his family, during the life of such person, or for any shorter term, subject to the rules of title two of this part; or, 4. To recelye the rents and profits of real property, and to 553 § 857 CIVIL CODE. [Div.II.Pt.TI. accumulate the same for purposes and within the limits pre- scribed by the same title. HlHtory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 221-222. See Kerr's Cyc. C. C. for 63 pars, annotation. 58 C. 457, 478, 481, 483 (construed and applied witli otlier section^: — ^express trusts are put In opposition to resulting: trusts); 76 C. 136, 144, 9 A. S. 177. 18 P. 146.' 150 (construed and applied); 79 C. 65, 67, 21 P. 545 (applied — express trust to collect and apply rents of real estate); 80 C. 237. 242, 22 P. 167, 169 (construed and applied): 85 C. 488, 506, 24 P. 930. 934 (applied with other sections); 107 C. 587, 595. 596, 40 P. 810 (construed and applied with other sections); 108 C. 627, 644, 646. 648. 656. 49 A. S. 97. 41 P. 772 (applied with other sec- tions); 109 C. 323, 330, 50 A. S. 43. 41 P. 1089 (applied with other sections); 116 C. 405. 409, 48 P. 622 (no trust can be created to sell realty for benefit of legatees); 121 C. 379. 382, 385, 53 P. 813 (applied with other sections — trust deeds with power of sale, as security, are authorized by this section); 123 C. 140. 144, 55 P. 681 (applied); 124 C. 418. 420. 421, 57 P. 219 (applied with other sections); 124 C. 495. 497. 57 P. 381 (referred to in discussion); 130 C. 128. 134. 135. 62 P. 401 (con- strued and applied); 132 C. 523. 527, 528. 559. 564. 567. 84 A. S. 70, 60 P. 442. 64 P. 1000 (construed and applied with other sections); 132 C. 621, 623. 624. 625. 626. 84 A. S. 118, 64 P. 997, 998 (various subdivisions construed and applied — trust not authorized by this section, such as one by deed to hold for use of grantor, is void); 133 C. 420. 423, 65 V. 952 (construed and applied); 135 C. 277. 279. 67 P. 129 (construed and applied with other sections); 136 C. 97. 102, 103, 68 P. 494 (construed and applied); 136 C. 153. 155. 68 P. 579 (construed and applied with other sections); 139 C. 682. 685. 73 P. 604, 606 (construed and applied); 140 C. 48. 52. 73 P. 748 (trust In will to transfer and convey, is void as to real property); 146 C. 745, 747, 81 P. 138 (trust to lease property, collect rents, and to pay over rentals is valid); 147 C. 95, 102. 103, 81 P. 315 (subd. 3 applied); 147 C. 384, 389, 81 P. 1077 (referred to — what express trusts are not mortgages); 148 C. 184, 187. 189. 190, 193, 82 P. 755 (power conferred upon trustees to "manage" trust property does not violate this section); 149 C. 200. 205. 85 P. 147 (what trust created by will Is within section); 149 C. 667. 675. 87 P. 276 (referred to); 150 C. 214, 227, 88 P. 920 (referred to); 3 C. A. 741. 747, 86 P. 1108 (subd. 3 referred to — competency of Masonic lodge to take as trustee); 4 C. A. 593, 596. 88 P. 646 (applied- trust Invalid for want of certainty); 11 F. 253, 261 (.npplie.l 654 Tit. IV.] MORTGAGE POWERS— PROFITS. §§858,859 with other sections to conveyance in trust to secure railway mortgage bonds); 86 F. 975, 976 (subd. 1 applied). As to trusts for accumulation of income, see Kerr's Cyc. C. C. § 724 and note. As to trusts for creditors, see 34 A. S. 219. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally', see note § 847, ante. §858. VESTING OF MORTGAGE POWERS. Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the pay- ment of money, the power is to be deemed a part of the security, and vests in any person who, by assignment, becomes entitled to the money so secured to be paid, and may be executed by him whenever the assignment is duly acknowledged and recorded. History: Enacted March 21, 1872; original provision repealed and above provision substituted therefor by Act March 30, 1874, Code Amdts. 1873-4, p. 222. The above section a re-enact- ment of section 895 post (repealed). — See 132 C. 523, 557, 84 A. a. 70, 60 P. 442, 64 P. 1000. See Kerr's Cyc. C. C. for 17 pars, annotation. 121 C. 379, 384, 53 P. 813 (construed and applied with other sections); 132 C. 523, 557, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed and applied in dis. op. with other sections) ; 7 C. A. 413, 416, 417, 94 P. 400 (rights of transferee of negotiable promissory note, payment of which is secured by deed of trust whereby title to property and power of sale in case of default is vested in third party as trustee). As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. §859. PROFITS OF LAND LIABLE TO CREDITORS IN CERTAIN CASES. 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 the education and support of the person for whose benefit the trust is created, is liable to the claims of the creditors of such person, in the 555 § 860 CIVIL CODE. [Div.II.Pt.II. same manner as personal property which cannot be reached by execution. History: Enacted March 21, 1872; amended by Code Com- mission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 394, held unconstitutional, see history, § 4 ante. This section is taken from 1 N. Y. Rev. Stats. 729, § 57, which has received construction in 42 Hun (N. Y.) 636. See 139 C. 640, 642, 73 P. 585. ■ ■ See Kerr's Cyc. C. C. for 15 pars, annotation. 139 C. 640, 641, 73 P. 585 (construed and applied). As to inalienability of trust estates, see note 1 Barb. Ch. (N. Y.) 34, bk. 5 L. ed. 288. As to power of married woman to charge separate estate created for her benefit, see note 1 Barb. Ch. (N. Y.) 34 bk. 5 L. ed. 288. As to right of creditor to her surplus income of judgment debtor, see note 2 Barb. Ch. (N. Y.) 79, bk. 5 L. ed. 564. As to trusts under wills, see 2 Cliurch's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. As to validity of trusts to pay over rents and profits and rights of creditors to reach same, see note 8 Paige Ch. (N. Y.) 83, bk. 4 L. ed. 353. § 860. EXERCISE OF VESTED POWER. Where a power is vested in several persons, all must unite in its execution; but, in case any one or more of them is dead, the power may be executed by the survivor or survivors, unless otherwise prescribed by the terms of the power. History: Enacted March 21, 1872; original section repealed and above provision substituted therefor by Act March 30, 1874, Code Amdts. 1873-4, p. 222. The above section a verbatim re-enactment of section 900 post (repealed). See 132 C. 523, 557, 84 A. S. 70, 60 P. 442, 64 P. 1000. See Kerr's Cyc. C. C. for 5 pars, annotation. 132 C. 523, 537, 552, 557, 558, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed with other sections). As to conveyance by one of several, see 64 A. D. 201. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. As to when majority of trustees may act, see 11 A. D. 674. 556 A Tit. IV.] EXPRESS TRUST — ESTATE. §§ 861-863 § 861. CEEATIOX OF CERTAIN POWERS NOT PROHIB- ITED (repealed). History: Enacted March 21, 1872; repealed March. 30, 1874, Code Amdts. 1873-4, p. 222. 132 C. 523, 552, 84 A. S. 70, 60 P. 442, 64 P. 1000 (reasons for, and effect of, repeal of section). As to trusts under wills, see 2 Church's New Prohate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. §862. LAND, ETC., TO DESCEND TO PERSONS ENTI- TLED (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 222. 132 C. 523, 552, 84 A. S. 70, 60 P. 442, 64 P. 1000 (reasons for, and effect of, repeal of section). As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. §863. TRUSTEES OF EXPRESS TRUSTS TO HAVE WHOLE ESTATE. Except as hereinafter otherwise provided, every express trust in real property, valid as such in its crea- tion, vests the whole estate in the trustees, subject only to the execution of the trust. The beneficiaries take no estate or interest in the property, but may enforce the performance of the trust. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 173, pars, annotation. 70 C. 236, 241, 11 P. 656, 658 (this section is modified by §§ 864, 865, and 1006, so that trustor of express trust, except as to his trustee and those holding under him, is treated as holder of legal title); 70 C. 326, 331, 11 P. 728, 730 (applied with other sections); 79 C. 65, 68, 21 P. 545, 546 (applied); 85 C. 488, 506, 24 P. 930, 934 (construed and applied); 25 P. 427, 428 (trust on ground of fraud is not established when — insuffi- ciency of complaint); 87 C. 453, 456, 25 P. 675, 676 (construed and applied with other sections); 95 C. 63, 74 (applied with other sections but erroneously cited as § 863 C. C. P.) 30 P. 301 (correct citation); 107 C. 410, 419, 40 P. 552 (applied); 107 C. 587, 596, 40 P. 810, 811 (construed and applied); 108 C. 627, 557 § 864 CIVIL CODE. [Div.II.Ptll. 648, 49 A. S. 97, 41 P. 772 (construed and applied with other sections); 111 C. 628, 636, 637, 638, 44 P. 225 (applied); 56 P. 550, 552 (applied with other sections); 124 C. 533, 537, 538, 57 P. 564 (cited in discussion); 128 C. 1, 9, 60 P. 471 (applied); 132 C. 523, 536, 539, 576, 577, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed and applied); 133 C. 420, 422, 65 P. 952 (construed and applied); 143 C. 265, 271, 101 A. S. 118, 76 P. 1020 (referred to — what is merely formal and barren title, without estate or interest^Jn land or right to its possession); 144 C. 314, 321 (erroneously cited as C. C. P.), 77 P. 942, 944 (correct citation); 148 C. 184, 188, 82 P. 755 (when trust is created, whole estate is vested in trustee); 153 C. 245, 250, 94 P. 1047 (what is im- plied in term "trust"); 11 F. 253, 260 (applied with other sec- tions to conveyance in trust to secure railway mortgage bonds) ; 54 F. 55, 59, 60 (this section does not deprive federal court, sitting in equity, in California, of jurisdiction of suit by beneficiaries to remove cloud from legal title). As to enforcement of voluntary executory trust, see 11 L. 456. As to equitable jurisdiction over trusts, see 66 A. D. 502; 67 A. D. 100; 73 A. D. 558. As to garnishment of claim of cestui que trust against trustee, see 59 L. 385-387. As to right to enforce trust against property with which it has been mingled by trustee, see Kerr's Cyc. C. C. § 2236 and note. As to statute of limitations in its application to trusts, see 34 A. D. 725; 42 A. D. 447; 44 A. D. 159; 60 A. D. 212; 8 L. 480, 647; 8 Prob. Rep. Anno. 436-439. As to when legal title vests in beneficiaries, see 86 A. D. 512, 518. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. As to whom property passes on trustee's death, see 1 L. 334. § 864. AUTHOR OF TRUST MAY DEVISE, ETC. Notwith- standing anything contained in the last section, the author of a trust may, in its creation, prescribe to whom the real prop- erty 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 70 C. 236, 240, 11 P. 656, 658 (construed and applied with 558 Tit. IV.] TITLE — ^INTBREST IN GRANTOR. §§ ggs^ 866 other sections); 70 C. 326, 331, 332, 11 P. 728, 730 (construed and applied with other sections); 87 C. 453, 456, 25 P. 675, 676 (construed and applied with other sections); 111 C. 628, 638, 44 P. 225 (construed and applied with other sections); 121 C. 379, 383, 53 P. 813 (construed and applied with other sections); 132 C. 523, 547, 553, 558 (construed and applied but erroneously cited in dis. op. of Temple, J., as § 846), 563, 576, 64 P. 1000, 1007 (erroneously cited as §648); 60 P. 442, 451 (construed and applied — concurring opinion not officially reported); 136 C. 97, 105, 68 P. 494 (construed and applied); 146 C. 745, 749, 81 P. 138 (every estate not einbraced in trust is left how) ; 152 C. 753, 759, 93 P. 1012, 1013 (applied with other sections). As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. § 865. TITLE OF GRANTOR OF TRUST PROPERTY. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 70 C. 236, 240, 11 P. 656, 658 (applied); 121 C. 379, 383, 53 P. 813 (applied with other sections); 146 C. 745, 749, 81 P. 138 (every estate not embraced in trust is left how) ; 152 C. 753, 759, 93 P. 1012, 1013 (applied with other sections). As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. §866. INTERESTS REMAINING IN GRANTOR OF EXPRESS TRUST. Where an express trust is created in rela- tion 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 70 C. 326, 331, 11 P. 728, 730 (construed and applied with other sections); 109 C. 323, 331, 50 A. S. 43, 41 P. 1089 (con- strued and applied with other sections); 124 C. 418, 420, 57 P. 219 (construed and applied with other sections); 132 C. 523, 576, 84 A. S. 70, 60 P. 442 (construed and applied with other sections); 136 C. 97, 105, 68 P. 494 (construed and applied); 559 §§ 867-869 CIVIL COTDE. [Div.II.Pt.II. 142 C. 15, 16, 17, 100 A. S. 99, 75 P. 566 (construed and applied); 146 C. 745, 749, 81 P. 138 (every estate not embraced in trust is left how); 3 C. A. 741, 747, 86 P. 1108 (competency of Masonic lodge to take as trustee). As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see § 847, ante. §867. RESTRAIMX; DISPOSITION OF TRUSTS. 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. HiNtory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 223. See Kerr's Cyc. C. C. for 8 pars, annotation. Ill C. 628, 637, 44 P. 225 (construed and applied with other sections); 133 C. 420, 422, 65 P. 952 (construed and applied with otlier sections); 142 C. 15, 17, 100 A. S. 99, 75 P. 566 (construed and applied). As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. §808. POWERS OVER TRUST OF PARTY INTERESTED (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 223. § 869. EFFECT OF OMITTING TRUST IN CONVEYANCE. Where an express trust is created in relation to real prop- erty, but is not contained or declared in the grant to the trus- tee, or in an instrument 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 valuable consideration. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 223. See Kerr's Cyc. C. C. for 3 pars, annotation. 125 C. 9, 12, 57 P. 690; 83 F. 48, 52 (construed with § 2243 and 560 A Tit. IV.] SALES BY TRUSTEE, VOID. §§870,871 applied — enforcement of trust — ^who is a purchaser without notice). As to conveyance by trustee and wlien same void and void- able, see 19 A. S. 266. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. As to using- proceeds of trust property in own business, see 51 L. 90. §870. CERTAIN SALES, ETC., BY TRUSTEES, VOID. Where a trust in relation to real property is expressed in the instrument creating tlie estate every transfer or other act of the trustees, in contravention of the trust, is absolutely void. Hi.story: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 394, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 18 pars, annotation. 70 C. 326, 331, 11 P. 728, 730 (cited in applying and constru- ing other sections); 13 P. 860, 862 (construed and applied); 106 C. 514, 534, 39 P. 922 (construed and applied with other sec- tions); 108 C. 627, 649, 49 A. S. 97, 41 P. 772 (construed and applied); 124 C. 418, 57 P. 219 (applied without citation); 134 C. 641, 645, 657, 58 P. 298, 60 P. 974, 66 P. 982 (construed and applied): 133 C. 51, 52 (applied, but erroneously cited as §871), 65 P. 130 (same error); 71 P. 104, 107 (construed and applied); 139 C. 593, 594, 73 P. 452 (referred to); 145 C. 157, 164, 78 P. 544 (construed and applied). As to conveyances by trustees and the circumstances making same void or voidable, see 19 A. S. 266; also Kerr's Cyc. C. C. § 2243 and note. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427, 1433. As to uses and trusts generally, see note § 847, ante. §871. WHEN ESTATE OF TRUSTEE TO CEASE. When the purpose for which an express trust was created ceases, the estate of the trustee also ceases. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 58 C. 63, 72 (construed and applied in dis. op.); 70 C. 326, 331 333, 11 P. 728, 730 (construed and applied with other sections); 561 §§ 878-940 CIVIL CODE. [Div.II.Ptll. 119 C. 406, 409, 51 P. 629 (cited and referred to); 121 C. 379, 384, 53 P. 813 (construed and applied with other sections); 124 C. 418, 420, 57 P. 219 (construed and applied with other sections); 132 C. 523, 575, 84 A. S. 70, 60 P. 442 (applied); 133 C. 51, 52, 65 P. 130 (erroneously cited for §870); 136 C. 97, 105, 68 P. 494 (construed and applied); 145 C. 157, 163, 78 P. 544 (construed and applied); 11 F. 253, 262 (applied with other sections to conveyance in trust to secure railway mortgage bonds). As ta. bequests held void for uncertainty as to purposes of trust and beneliciraies, see 3 L. R. A. 145-149. As to extinguishment of trusts by reason of failure in part, see post § 2279 and note. As to trusts under wills, see 2 Church's New Probate Law and Practice, 1427-1433. As to uses and trusts generally, see note § 847, ante. As to when trust is extinguished, see post § 2279 and note. TITLE V. POWERS. [This title, embracing sections 878 to and including 940 of the original code, was repealed by Act March 30, 1874, Code Amdts. 1873-4, p. 223.] 1. Citations of code section.s, tlioiieli repealed. — 3 C. A. 727, 729, 86 P. 994 (effect of deed wliile former provisions of code as to powers were in force). 2. Purpose of title. — This title was intended to limit and restrict the power of the owners of real property. — See 132 C. 523, 557, 84 A. S. 70, 60 P. 442, 64 P. 1000. 3. Codes authorize creation of power. — Notwithstanding repeal of title in regard to powers, "in one respect the creation of a power is still authorized by the codes." — See 121 C. 379, 384, 53 P. 813. 562 Pt.III.Tit.I.] PERSONAL PROPERTY. § 945 PART III. PERSONAL AND MOVABLE PROPERTY. Title L Personal Property in General, §§ 946, 947. II. Particulars Kinds of Personal Property, §§ 953-995. TITLE I. PERSONAL PROPERTY IN GENERAL. § 946. By what law g-overned. § 947. Future interests in perishable property, how protected [repealed]. §946. BY WHAT LAW GOVERNED. If there is no law to the contrary, in the place where personal property is sit- uated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. History: Enacted March 21, 1S72; repealed March 30, 1874, Code Amdts. 1873-4, p. 223; re-enacted as above March 9, 1876, Code Amdts. 1875-6, p. 78. See Kerr's Cyc. C. C. for 6 pars, annotation. 105 C. 192, 199, 201, 38 P. 636 (cited). PERSONAL. PROPERTY — GENERALLY. As to generally. — See note § 657, ante. As to fixtures. — See note § 660, ante. Abandonment of. — See 4 L. N. S. 573; 1 Cent. Dig. col. 3, §§1-11;-1 Decen. Dig. p. 21, §§1-7. Accession to. — See note § 1025, post. Administration and distribution of, of decedent. — See 1 Church's New Probate Law and Practice 797, 801-804, 897. Adverse possession. — See 1 Cent. Dig. col. 2034, § 6; col. 2094, §87; col. 2134, §130[f]; col. 2139, §§138[a, b]; col. 2163, §193[c]; col. 2353, §414; col. 2411, §490; col. 2414, §493; col. 2536, §§619- 623. Alien ownership of. — See 2 Cent. Dig. col. 161, §59; 1 Decen. Dig. p. 633, § 14. Choses in action as. — See 60 A. R. 413; 62 A. S. 436; 16 L. 729; 37 L. 384; 6 W. & P. 5352. 563 § 947 CIVIL CODE. [Div.II.Pt.III. Claim ex contractu or ex delicto as. — See 6 W. & P. 5352. Confusion of. — See 10 Cent. Dig. col. 1075, §§1-16; 4 Decen. Dig. p. 487, §§ 1-15. Conversion of, acts constituting and liability therefor. — See 47 Cent. Dig. col. 6, §§ 1-102. Definition and distinctions. — See 22 Encye. L. 747; 6 W. & P. 5346-5351. Delivery and acceptance, as accord and satisfaction. — See 1 Cent. Dig. col. 512, §119[d]. Growing crops as. — See 5 A. C. 480. Growing fruit as. — See 16 L. 103. Independent situs of. — See 2 Obiter Dig. 463, 464. I-iaw governing distribution of. — See 2 Obiter Dig. 464. Law governing management and disposition of — Generally. — See 2 Obiter Dig. 464. Liability for wrongs relating to. — See 22 Encyc. L. 756. Loss of and finding thereof. — See 23 Cent. Dig. col. 954, §§ 1-10; 9 Decen. Dig. col. 66, §§ 1-11. Mobilia sequntur personam, origin of rule. — See 2 Obiter Dig. 462, 463. Mode of passing title — Deed unnecessary. — See 2 Obiter Dig. 462. Mortgage of, or agreement to mortgage crops to be planted, validity of. — See 5 A. C. 400. Ownership and attributes of. — See 22 Encyc. L. 751. Partition of.— See 38 Cent. Dig. col. 72, §59; col. 82, §67; col. 120, §59; col. 131, §110; col. 448, §456. Right to plead inconsistent defenses in actions relating to. — See 48 L. 197. Specific performance of contracts in reference to. — See 5 A. C. 269; 10 A. C. 934; 44 Cent. Dig. col. 1313, § 65. Tenancy by entireties in. — See 22 L. 94; 30 L. 317. Title to and methods of acquiring. — See 22 Encyc. L. 752-755. What constitutes — Claim and compensation. — See 2 Obiter Dig. 462. §947. FUTURE INTERESTS IN PERISHABLE PROP- ERTY, 110 >V PROTECTED (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 223. 564 Tit.II.ch.L] THINGS IN ACTION. §§953,954 TITLE II. PARTICULAR KINDS OF PERSONAL, PROPERTY. Chapter I. Things in Action, §§ 953, 954. II. Shipping, §§ 960-973. III. Products of the Mind, §§ 980,-985. IV. Other Kinds of Personal Property, §§ 991-995. CHAPTER I. THINGS IN ACTION. § 953. Things in action defined. § 954. Transfer and survivorship. §953. THi:\GS IN ACTION DEFINED. A thing in action is a right to recover money or other personal property by a judicial proceeding. History: Enacted Marcli 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 224. See Kerr's Cyc. C. C. for 18 pars, annotation. 123 C. 157, 161, 55 P. 786 (construed and applied); 143 C. 528. 534, 77 P. 471 (cited — a chose in action, while not capable of manual delivery, is a subject of gift); 144 C. 631, 633, 78 P. 22 (certificate of stock may be transferred or assigned); 54 F. 320, 331 (construed with § 954 — what right of action survives to administrator as assets in his hands). As to many miscellaneous matters of personal property, see note § 946, ante. Delivery of possession, etc., not necessary. — See Kerr's Cyc. C. C. § 3440 and note. Survivorship. — See Kerr's Cyc. C. C. § 954 and note. Transfer of chose in action. — See Kerr's Cyc. C. C. § 954 and note. §954. TRANSFER AND SURVIVORSHIP. A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. Upon the death of the owner it passes to his personal representa- 565 § 954 CIVIL CODE. [Div.II.Ptlll. tives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office. History: Enacted March 21, 1872. See Practice Act 1851, § 4, and other statutes referred to in brief in 9 C. 325, 327; Act May 15, 1854, §4, and Act May 7, 1855, 6 C. 247, 248; Acts 1851, 1854, 1855, and 1864, referred to in 32 C. 590, 593. South Dakota Coinp. Laws, § 2S77 is identical. — 3 S. D. 434, 53 N. W.. 857. See Kerr's Cyc. C. C. for 94 pars, annotation. 144 C. 256, 260, 79 P. 451, 1 A. C. 850 (applied to obligation arising out of contract); 144 C. 631, 633, 78 P. 22 (certificate of stock may be transferred or assigned); 3 C. A. 561, 568, 86 P. 820 (what may be assigned); 7 C. A. 248, 254, 94 P. 252, 253 (right of action is property and is transferable); 54 F. 320, 331 (construed with § 954 — what right of action survives to admin- istrator as assets in his hands). As to duty of attorneys to maintain respect due to courts of justice, etc., see Kerr's Pocket C. C. P. § 282. As to law governing personal property, see Kerr's Cyc. C. C. § 946 and note. As to many miscellaneous matters as to personal property, see note § 946, ante. As to party plaintiff in actions for infringement of patent, see 16 Encyc. P. 65-69. Assignability of cause of action for personal injury. — See 44 L. 77-88. Attorneys — Purchase of claim for purpose of suit constitutes misdemeanor. — See Kerr's Cyc. Pen. C. § 161 and note. Counterclaim not barred by assignment. — See Kerr's Cyc. C. C. P. § 440 and note. Defense not prejudiced by. — See Kerr's Cyc. C. C. P. § 368 and note. Definition of "obligation." — See Kerr's Cyc. C. C. § 1458 and note par. 2. General rules governing assignment of choses in action. — See 34 A. S. 210-212. Lien waived by transfer of contract. — See Kerr's Cyc. C. C. § 3047 and note. Notice of assignment to obligor — Necessity for and requisites of.— See 2 Encyc. L. 1076-1079; 36 A. D. 475-477. Optional contract is assignable. — See Kerr's Cyc. C. C. §1459 and note pars. 55-57. Patents for inventions — Assignment of. — See Rev. Stats. U. S. § 4921; 5 F. S. A. 577 and note. Pendente lite assignment — Authority to make. — See Kerr's Cyc. C. C. § 1459 and note par. 3. 566 Tit.II,ch.II,art.I.] ships and shipping. §960 Revival of action— Substitution of parties.— See Kerr's Cyc. C. C. P. § 385 and note. Waiver of lien by transfer of contract for payment of price. — See Kerr's Cyc. C. C. § 3047 and note. Warrants— Assignability of.— See Kerr's Cyc. C. C. § 1459 and note pars. 49-53. CHAPTER 11. SHIPPING. Article I. General Provisions, §§ 960-966. II. Rules of Navigation, §§ 970-973. ARTICLE I. GENERAL, PROVISIONS. § 960. Definition of a ship. § 961. Appurtenances and equipments. § 962. Foreign and domestic navigation. § 963. Foreign and domestic ships distinguished. § 964. Several owners. § 965. Owner for voyage. § 966. Registry, etc. § 960. DEFINITION OF A SHIP. The term "ship or ship- ping," 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 transportation of merchandise or persons. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 224. See Kerr's Cyc. C. C. for 23 pars, annotation. As to many miscellaneous matters as to personal property, see note § 946, ante. As to what is a vessel within the maritime lien laws, see 1 L. 505. SHIPS AND SHIPPING — GENERALLY. As to insurance of vessel and cargo, see note § 2655, post. As to what are vessels.— See 1 L. 505; 8 W. & P. 7297-7301. Collision at sea, when deemed acts of God. — See 46 A. D. 592. 567 § 960 CIVIL CODE. [Div.II,Pt.III. Collision of vessels, liability for damages caused by. — See 45 A. D. 51; 7 L. 56. Crew of chartered vessel, servants of whom. — See 37 L. 54. Damages.— Caused by collision. — See 7 L. 56. Same — For loss of vessel caused by collision. — See 6 A. C. 129. Same — For personal injuries. — See 7 L. 57. Definition of ships. — -See 7 W. & P. 6485. Definition of vessel. — See 8 W. & P. 7297. Demise of vessel by charter party. — See 5 A. C. 623. Demutrag-e. — See 30 A. S. 634. Duty of ship owners to seamen. — See 1 A. S. 812. Duty of steamer to avoid imperiling of small boat by swells. —See 7 L. N. S. 920. Duty of vessel to land at wharf to permit visitor to depart. — See 10 L. N. S. 969. Duty to furnish medical aid to seamen. — See 28 L. .^49. Effect of strike on. — See 35 L. 630. Express provision in charter party against demurrage in case of strike, effect and construction of. — See 5 L. N. S. 126. Fellow servants in ship's crew, who are part from statute, where no question as to vice-principal arises. — See 50 L. 438. General average — As to generally, see 2 A. D. 207. Same — Liability of effects of passengers to contribute in. — See 2 L. 287. Same — Voluntary sacrifice essential to. — See 14 A. D. 613. Hired vessels, liability of owners of. — See 13 A. D. 87. Home port of vessel, what is for purposes of taxation. — See 2 L. N. S. 197. Jurisdiction and power of consul. — See 45 L. 486-500. Jurisdiction of ships at sea. — See 46 L. 264. Liability — Of effects of passengers, to contribute in general average. — See 2 L. 287. Liability for failure to forward bonded merchandise. — See 4 L. N. S. 1060. Liability for failure to furnish passenger with berth. — See 5 L. N. S. 1012. Liability of owner for costs of removing vessel sunk in har- bor.— See 3 L. N. S. 1120. Liability of owners to seamen for acts of officers and em- ployees. — See 31 A. S. 805. Liability of shippers of goods for injviries to seamen. — See 46 L. 104. Liability of vessels of owners. — See 2 L. 173; 39 L. 177; 46 L. 73; 51 L. 555; 61 L. 282; 64 L. 977. Lien of carriers by water for demurrage. — See 5 A. C. 388. Limitation of liability — As to generally, see 7 L. 55; 10 L. 420. Same — Of vessel as to goods shipped. — See 7 A. C. 283; 7 A. C. 471; 9 A. C. 17. 568 Tit.II,ch.II,art.I.] ships and shipping. §960 Limit of liability for passenger's bag-gage. — See 9 A. C. 909. Loss by fire, liability. — See 7 L. 56. Loss by perils of the sea. — See 3 L. 426. Loss of profits as an element of damages for breach of char- ter or rental of vessel. — See 53 L. 105. Loss or destruction of cargo, right of carrier to recover for. — See 2 L. 174. "Loss," what is within meaning of statute terminating sea- men's wages upon, of vessel. — See 6 A. C. 68. Master's liability for injury done by servant of third person in use of water craft placed in his custody. — See 10 L. N. S. 389. Master's power to sell vessel and to hypothecate it and the freight and cargo. — See 63 A. D. 638. Mechanics' lien on vessels — Creation of by state. — See 1 L. 505. Ownership of derelict. — See 18 L. 695. Part owners of vessels. — See 88 A. D. 364; 90 A. S. 355. Private action for violation of law and rules of navigation and water carriage. — See 9 L. N. S. 375. Prospective profits as element of damage for recovery of total loss of vessel by collision. — See 6 A. C. 131. Protest of master as evidence.- — See 13 A. D. 735. Regulations of generally. — See 2 L. 380; 4 L. 125; 26 L. 484; 27 L. 414. Relative duties of steamers and small crafts propelled by oars on rivers and in narrow channels. — See 5 L. N. S. 303. Relative rights and duties of master of vessel and pilot. — See 10 A. C. 382. Right of cargo owner to treat contract of affreightment as ended by abandonment of vessel. — See 4 A. C. 412. Right of carrier to recovery for loss or destruction of cargo. —See 2 L. 174. Rights of seamen as salvors. — See 64 L. 193. Seamen — Assignment of future wages of. — See 14 L. 127. Same — Duty of ship owner to. — See 7 A. C. 202; 1 A. S. 812. Same — Same — Sick and disabled. — See 7 A. C. 203. Same — Duty to furnish medical aid to. — See 28 L. 549. Same — End of voyage — What constitutes. — See 9 A. C. 505. Same — Exemption of wages of. — See 18 L. 310. Same — Liability of owners of vessels for injuries received by seamen from the officers. — See 31 A. S. 805. Same — Liability of shippers of goods for injuries to. — See 46 L. 104. Same — Maritime lien under contract. — See 70 L. 377. Same — Right of — As salvors. — See 64 L. 193. Same — Same — Under contract of service for ordinary voyage, to refuse to proceed to belligerent port without relinquishing right to wages. — See 7 A. C. 347. 569 § 961 CIVIL CODE. [Div.II,Pt.III. Same — Wages of. — See 6 A. C. 65; 7 A. C. 434; 9 A. C. 536. Same — Same — Right of seamen, under contract of services for ordinary voyage to refuse to proceed to belligerent port without relinquishing right of wages. — See 7 A. C. 347. Same — Same — What constitutes loss within meaning of statute termination seamen's wages upon loss of vessel. — See 6 A. C. 68. Seaworthiness, what constitutes. — See 58 A. D. 671. Shipowner and master's duties toward sick or disabled sea- men. — See 7 A. C. 203. Ship owner's duty to seamen. — See 7 A. C. 202. Ship's husband — Right of to maritime lien for advances. — See 70 L. 416. Situs of vessel for purposes of taxation. — See 3 A. C. 1103; 6 A. C. 205; 7 A. C. 443; 69 L. 447; 2 L. N. S. 197. Strike — Effect of on unloading cargo. — See 35 K 630. Supercargoes, who are and their rights, duties, and liabilities. — See 66 A. D. 325. Taxation of receipts of steamship companies. — See 57 L. 64. Towed vessels, liability for injury caused to. — See 25 A. D. 354. Unloading cargo. — See 6 L. 172. Validity and effect of stipulation in ocean steamship ticket limiting liability for passenger's baggage. — See 9 A. C. 913. Vessels at sea. — See 12 A. D. 511. Vessels — Contracts to build, whether are maritime contracts. —See 13 A. R. 273. Same — Rights and duties of not based upon contract. — See 75 A. D. 601. "Vessel" synonymous with ship. — See 7 W. & P. 6487. What constitutes appurtenances of ship. — See 5 A. C. ~652. What constitutes end of voyage. — See 9 A. C. 505. When vessel is engaged in interstate commerce. — See 2 L. 381. Where ships and vessels are taxable. — See 37 L. 518. § 961. APPURTE>ANCES AXD EQUIPMENTS. 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 deemed its appurtenances. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. As to many miscellaneous matters as to ships and shipping, see note § 960, ante. 570 Tit.II,ch.II,art.I.] navigation, foreign, etc. §§962-966 §962. FOREIGN AND DOMESTIC NAVIGATION. 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 navi- gation, when passing" from place to place within the United States. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to ships and shipping, see note § 960, ante. §963. FOREIGN AND DOMESTIC SHIPS DISTIN- GUISHED. A ship in a port of the state to which it belongs is called a domestic ship; in another port it is called a foreign' ship. History: Enacted March 21, 1872. §964. SEVERAL OWNERS. If a ship belongs 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. History: Enacted March 21, 1872. §965. OWNER FOR VOYAGE. If the owner of a ship commits its possession and navigation to another, that other, and not the owner, is responsible for its repairs and supplies. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. As to many miscellaneous matters as to sliips and shipping, see note § 960, ante. §966. REGISTRY, ETC. The registry, enrolment, and license of ships are regulated by acts of Congress. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. As to many miscellaneous matters as to ships and shipping, see note § 960, ante. 571 § 970 CIVIL CODE. [Div.II.Pt.TII. ARTICLE II. RUIJ-:S 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. [Pass on starboard side.] 5. Rules for steam vessels on different courses. 6. Meeting of steamers. § 971. Collision from breach of rules. S 972. Breaches of such rules to imply wilful default. § 973. Loss, how apportioned. § {)7(>. COLLISIONS. In the case of ships meeting, the following rules must be observed, in addition to those pre- scribed by that part of the Political Code which relates to navigation : 1. Kulos as to ships ineotiuj? each other. Whenever any ship, whether a steamer or sailing ship, proceeding in one direction, meets another ship, whether a steamer or sailing ship, proceeding in another direction, so that if both ships were to continue their respective courses they would pass so near as to involve the risk of a collision, the helms of beth 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 neces- sary in order to avoid immediate danger, and subject also to a due regard to the dangers of navigation, and, as regards sailing ships on the starboard tack close-hauled, to the keep- ing such ships under command ; 2. Kules for sailing' vessels. 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, passing each other on the larboard hand. 572 J TitII,ch.II,art.II.] COLLISIONS. § 970 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 vessels must be regarded as vessels navigating with a fair wind, and should give way to sailing vessels on a wind of either tack; 3. Eules for steamers in narrow channels. A steamer navi- gating a narrow channel must, whenever it is safe and prac- ticable, keep to that side of the fairway or mid channel which lies on the starboard side of the steamer; 4. Same. [Pass on starboard side.] A steamer when pass- ing another steamer in such channel, must always leave the other upon the larboard side; 5. Eules for steam vessels on different courses. When steamers must inevitably or necessarily cross so near that by continuing their respective courses, there would be a risk of collision, each vessel must put her helm to port, so as always to pass on the larboard side of each other; 6. Meeting of steamers. 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 steamers approaching each other within the sound of the steam-whistle, or by the regulations concerning lights upon steamers, pre- scribed by or under authority of the laws of the United States. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 394, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, pp. 600-601. ■ See Kerr's Cyc. C. C. for 8 pars, annotation. As to duty of sailing- vessel to hold her course, see 75 A. D. 601-604. As to duty of steamer and sailing- vessel when approaching each other, see 45 A. D. 55. As to duty of vessel overtaking another, see 75 A. D. 601-604. As to many miscellaneous matters as to ships and shipping, see note § 960, ante. As to rights and duties of vessels in navigation, see 75 A. D. 601-612. 573 §§971-973 CIVIL CODE. [Div.II.Pt.III. §971. COLLISION FROM BREACH OF RULES. If it appears that a collision was occasioned by failure to observe any rule of the. foregoing section, the owner of the ship by which such rule is infringed cannot recover compensation for damages sustained bj^ the ship in such collision, unless it appears that the circumstances of the case made a departure from the rule necessary. HiMlory: Enacted March 21, 1872. § 972. BREACHES OF SUCH RULES TO IMPLY WILFUL DEFAULT. Damage to person or property arising from the failure of a ship to observe any rule of section nine hundred and seventy, must be deemed to have been occasioned by the wilful default of the person in charge of the deck of such ship at the time, unless it appears that the circumstances of the case made a departure from the rule necessary. HLstory: Enacted March 21, 1872. §973. LOSS, HOW APPORTIONED. Losses caused by col- lision are to be borne as follows: 1. If oitlier iJarty was exelusivelj in fault he must bear his own loss, and compensate the other for any loss he has sus- tained ; 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 34 pars, annotation. As to burden of proof in case of collision, see 4r> A. D. 54. As to collision of vessels and the liability of tug and tow, see 3 L. 234. As to duty to exhibit lights, see 45 A. D. 55; 75 A. D. 601-610, 611. As to inevitable accident or inscrutable fault, see 45 A. D. 51. As to liability for Injury caused by towed vessel, see 25 A. D. 354. 574 A Tit.II.Ch.III.] AUTHORSHIP— OWNERSHIP. §§980,981 As to liability of vessels and others for damages caused by collisions, see 45 A. D. 51-60. As to many miscellaneous matters as to ships and shipping,, see note § 960, ante. As to rule where both parties are in fault, see 45 A. D. 52. As to rule where one vessel only is in fault, see 45 A. D. 53. As to when collisions at sea are deemed the acts of God, see 46 A. D. 592. CHAPTER III. PRODUCTS OF THE MIND. § 980. How far the subject of ownership. § 981. Joint authorship. § 982. Transfer. § 983. Effect of publication. § 984. Subsequent inventor, author, etc. § 985. Private writings. § 980. HOW FAR THE SUBJECT OF OW?fERSHIP. The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representation, has an exclu- sive ownership tlierein, and in the representation or expres- sion thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his possession. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 27 pars, annotation. As to many miscellaneous matters as to personal property, see note § 946, ante. Trade-marks. — See Kerr's Cyc. C. C. § 991 and note. §981. JOINT AUTHORSHIP. 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 contribution of each. Hi.story: Enacted March 21, 1872. As to many miscellaneous matters as to personal property, see note § 946, ante. 575 §§ 982-985 CIVIL CODE. [Div.II,Pt.III. §982. TRAlVSrER. The owner of any product of the mind, or of any representation or expression thereof, may transfer his property in the same. History: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. As to many miscellaneous matters as to personal property, see note § 9%^, ante. §983. EFFECT OF PUBLICATION. If the owner of a product of the mind intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner, so far as the law of this state is concerned. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. As to many miscellaneous matters as to personal property,. see note § 946, ante. § 984. SUBSEQUENT INVENTOR, AUTHOR, ETC. If the owner of a product of the mind does not make it public, any other person subsequently 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. History: Enacted March 21, 1872. §985. PRIVATE WRITINGS. Letters and other private communications in writing belong to the person to whom they are addressed and delivered; but they cannot be published against the will of the writer, except by authority of law. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. As to many miscellaneous matters as to personal property, see note § 946, ante. Letters — Property rights in — As between sender and receiver. — See 57 A. S. 619. Same — Same — Common-law rights in respect to. — See 51 L. 360. Same — Same — Injunction to protect. — See 5 A. D. 725. 576 Titll.ch.IV.] TRADE-MARKS. § 991 CHAPTER IV. OTHER KINDS OF PERSONAL PROPERTY. § 991. Trade-marks and signs. § 992. Good-will of business. § 993. Good-will and name, transfer of. § 994. Title deeds. § 995. "Tare" on baled hops. § 991. TEADE-MARKS AND SIGNS. One who produces or deals in a particular thing, or conducts a particular business, may appropriate to his exclusive use, as a trade-mark, any form, symbol, or name which has not been so appropriated by another, to designate the origin or ownership thereof; but he cannot exclusively appropriate any designation, or part of a designation, 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. History: Enacted March 21, 1872; amended March 30, 1874, Code"Amdts. 1873-4, p. 224. See Act 1863; 29 C. 292, 294, 87 A. D. 170. See Kerr's Cyc. C. C. for 214 pars, annotation. 63 C. 445, 446, 49 A. R. 96 (applied to business sign); 100 C. 672, 677, 35 P. 623, 22 L. 790 (applied to name); 103 C. 71, 73, 37 P. 210 (applied to tea labels— .distinction) ; 136 C. 351, 352, 68 P. 1014 (applied to use of name or word); 150 C. 180, 182, 88 P. 704 (applied to words "Old Homestead" stamped on loaves of bread). As to discretion of court in granting injunction, see 10 Bncyc. P. 983-994. As to good-wills, see Kerr's Cyc. C. C. «§ 992, 993 and notes. As to labels adopted by trade unions, etc., see Kerr's Cyc. Pol. C. §§ 3200, 3201 and notes. As to many miscellaneous matters as to personal property, see note § 946, ante. As to matters which may and which may not be adopted as trade-marks, see 12 Fed. 704-706. As to right of corporation to have name, see Kerr's Cyc. C. C. § 354 subd. 1 and note. As to violation of covenants Involving good-will, see Kerr's Cyc. C. C. § 992 and note. Kerr's C. C. — 19 577 §§992,993 CIVIL CODE. [Div.II.Pt.III. As to what constitutes infringement of trade-mark, see 47 A. D. 284-299. As to when injunction will lie against infringement of trade- mark, see note bk. 24 L. ed. U. S. Reps. 828-830. Criminal prosecution for violation of trade-mark. — See Kerr's Cyc. Pen. C. §§ 350-354% and notes. Damages for infringement of patents, copyrights, or trade- marks, as affected by loss of profits. — See 51 L. 801-825. Deception as bar to relief for infringement of trade-mark. — See note bk. 47 L. ed. U. S. Rep. 282-286. Definition and general characteristics of trade-mark. — See 47 A. D. 284-286. For other definitions, see Kerr's Cyc. Pen. C. § 353 and note; and Kerr's Cyc. Pol. C. § 3196 and note. Infringement — Criterion of. — See 9 L. 150, 151. Infringement — Simulation is necessary. — See 9 L. 151. Origin or ownership must be indicated to make trade-mark valid.— See 47 A. D. 287, 288. §992. GOOD-^VILL OF BUSINESS. The good-will of a business is the expectation of continued public patronage, but it does not include a right to use the name of any person from whom it was acquired. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 71 C. 142, 148, 11 P. 856, 859 (cited); 31 P. 155 (cited); 114 C. 635, 664, 46 P. 742, 34 L. 265 (applied); 124 C. 429. 431, 71 A. S. 94, 57 P. 468, 46 L. 142 (referred to); 145 C. 380, 388, 78 P. 879 (trading corporation's expectation of continued public patronage constitutes good-will of its business); 149 C. 575, 598, 87 P. 102 (franchise of corporation is good-will of its business, see con. op. of Henshaw, J.); 3 C. A. 291, 292, 85 P. 132 (contract con- strued as being, in effect, transfer of good-will of business). As to many miscellaneous matters as to personal property, see note § 946, ante. §993. GOOD-^VILL A>D NAME, TRANSFER OF. The good-will of a business is property, transferable like any other, and the person transferring it may transfer with it the right of using the name under which the business is con- ducted. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 395, 578 Titll.ch.IV.] TITLE DEEDS— "TARE." §§ 994, 995 held unconstitutional, see .history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 602. See Kerr's Cyc. C. C. for 58 pars, annotation. 71 C. 142, 148, 11 P. 856, 859 (referred to); 31 P. 155 (referred to); 114 C. 635, 664, 46 P. 742, 34 L. 265 (cited); 124 C. 429, 431, 71 A. S. 94, 57 P. 468, 46 L. 142 (referred to); 149 C. 575, 598, 87 P. 102 (con. op. of Henshaw, J. — franchise of corporation is good-will of its business). As to judicial sale of trade-mark, see Kerr's Cyc. C. C. § 991 and note par. 126. As to many miscellaneous matters as to personal property, see note § 946, ante. Analogy between good-will and trade-mark. — See Kerr's Cyc. C. C. § 991 and note. Dissolution of partnership — Agreement not to carry on simi- lar business. — See Kerr's Cyc. C. C. P. § 1675 and note. Partner has no authority to dispose of good-will. — See Kerr's Cyc. C. C. § 2430 subd. 2 and note. Warranty on sale of good-will. — See Kerr's Cyc. C. C. § 1776 and note. § 994. TITLE DEEDS. 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. Hi.story: Enacted March 21, 1872. 55 C. 564, 566 (meaning of "instrument" — it does not embrace what). As to many miscellaneous matters as to personal propert5^ see note § 946, ante. § 995. "TARE" OX BALED HOPS. There shall be allowed on baled hops a tare at the rate of two per centum of the weight of the bale for the cloth and other material used in baling; that is, the tare shall be at the rate of two pounds per hundred on the weight of the bale. HLstory Enacted March 21, 1907, Stats, and Amdts. 1907, p. 845, Kerr's Stats, and Amdts. 1906-7, p. 423. 579 §§ 1000, 1001 CIVIL CODE. [Div.II.Pt.IV. PART IV. ACQUISITION OF PROPERTY. Title I. Modes in which Property May Be Acquired, §§ 1000, 1001. II. Occupancy, §§ 1006, 1007. III. Accession, §§ 1013-1033. IV. Transfer, §§ 1039-1231. V. Homesteads, §§ 1237-1269c. VI. Wills, §§ 1270-1377. VII. Succession, §§ 1383-1409. VIII. Water Rights, §§ 1410-1422. IX. Hydraulic Mining, §§ 1424, 1425. X. Locating Mining Claims, Tunnel Rights, Mill Sites, etc., §§ 1426-1426S. TITLE I. MODES IN WHICH PROPERTY MAY BE ACQUIRED. § 1000. Property, how acquired. § 1001. Acquisition of property by exercise of eminent domain. §1000. PROPERTY, HOW ACQUIRED. Property is acquired by: 1. Occupancy; 2. Accession; 3. Transfer; 4. Will; or, 5. Succession. History: Enacted March 21, 1872. 112 C. 387, 394, 44 P. 734 (referred to). § 1001. ACQUISITION OF PROPERTY BY EXERCISE OF EMINENT DOMAIN. Any person may, without further legis- lative action, acquire private property for any use specified in section twelve hundred and thirty-eight of the Code of Civil 580 Tit, I.] EMINENT DOMAIN. § 1001 Procedure either by consent of the owner or by proceedings had under the provisions of title seven, part three, of the Code of Civil Procedure; and any person seeking to acquire property for any of the uses mentioned in such title is "an agent of the state," or a "person in charge of such use," within 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 62 C. 182, 183, 45 A. R. 659 (applied); 69 C. 255, 301, 10 P. 674, 698 (construed and applied); 79 C. 159, 162, 21 P. 547, 548 (construed and applied); 79 C. 549, 550, 21 P. 958 (applied); 91 C. 238, 248, 27 P. 604, 606 (construed and applied); 95 C. 105, 111, 112, 30 P. 197 (applied); 99 C. 210, 213, 33 P. 885. 886 (referred to); 119 C. 164, 165, 51 P. 34 (referred to); 129 C. 8, 11, 61 P. 947 (construed); 137 C. 619, 632, 92 A. S. 188, 67 P. 1040. 70 P. 1083, 59 L. 581 (referred to in dis. op.); 2 C. A. 546, 558, 84 P. 298 (limitation of charter of corporation cannot be cir- cumscribed by this section, nor by §§1238 or 1242 C. C. P.); 46 F. 709, 711 (applied — waters of running streams may be con- demned for purpose of supplying town witli water — waters of non-navigable running streams may be acquired by appropria- tion for purposes authorized by law). As to corporation being person, see Kerr's Cyc. C. C. § 14 and note. Complaint in condemnation proceedings. — See Kerr's Cyc. C. C. P. § 1244 and note. Constitutionality of statute. — See Kerr's Cyc. C. C. P. § 1238 and note. Estates and riglits in land which may be taken. — See Kerr's Cyc. C. C. P. § 1239 and note. Necessity must exist to justify taking. — See Kerr's Cyc. C. C. P. § 1241 and note. Private property which may be taken — Classes enumerated. — See Kerr's Cyc. C. C. P. § 1240 and note. Public uses — Statutory enumeration of. — See Kerr's Cyc. C. C. P. § 1238 and note. Railroad corporations— Exercise of power of eminent domain by. — See Kerr's Cyc. C. C. §§ 465, 467, 469, 472 and notes. 581 § 1006 CIVIL CODE. [Div.TI.Pt.IV. TITLE II. OCCUPANCY. § 1006. Simple occupancy. § 1007. Prescription. § 100«. SIMPLE OCCUPANCY. Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 44 pars, annotation. 65 C. 334, 4 P. 191 (cited); 70 C. 236, 240, 11 P. 656, 658 (con- strued with other sections); 83 C. 279, 288, 23 P. 386, 388 (cited witli other sections in discussion); 91 C. 383, 385, 27 P. 746 (applied); (C. July 24, 1901), 65 P. 875, 876 (applied); 133 C. 634, 636, 85 A. S. 233, 66 P. 12 (applied and construed); 138 C 517, 520, 71 P. 624 (applied); 1 C. A. 121, 123, 124, 81 P. 713 (applied to mineral deposits on mill-site); 3 C. A. 633, 639, 86 P. 985 (applied to water ditch). OCCUPANCY — IN GENERAL. As to occupancy under conditions of insurance policy, see note § 2527, post, titles "Occupancy" and "Vacancy." Actual occupancy or residence. — See 63 A. D. 457; 76 A. D. 432; 82 A. D. 112; 6 W. & P. 4898. Constructive possession. — See 6 W. & P. 4899. Cultivation as affecting-. — See 6 W. & P. 4900. Definition of occupancy. — See 37 L. ed. 533; 6 W. & P. 4898. Occupancy by mistake. — See 6 W. & P. 4900. Same — By servant. — See 6 W. & P. 4900. Same — By tenant. — See 6 W. & P. 4901. Same — Distinguished from adverse possession. — See 1 W. & P. 233. Same — Distinguished from residence. — See 7 W. & P. 6158. Same — Is synonymous with possession. — See 21 Encyc. L. 767. Same— Of license.— See 6 W. & P. 4901. Prescription. Acquisition of easement by. — See 10 L. 484; 11 L. 55. Creation of prescriptive right in real property. — See 1 L. 485. Creation of title by.— See 14 A. D. 67; 95 A. S. 671. Dedication of highway by user. — See 3 A. C. 142. 582 Tit. II.] PRESCRIPTION. § 1007 Prescriptive right — As to fishing-, see 60 L. 496. Same — To obstruct stream. — See 53 L. 895, 903. Same — Same — As to artificial condition of a body of water, see 50 L. 839. Same — Of way on shore. — See 4 L. N. S. 880. Same — ^Riglits to subterranean waters. — See 19 L,. 94. Same — To dam back water of stream. — See 59 L. 838. Same — To obstruct navigable stream. — See 59 L. 79. Same — To pollute water course. — See 3 A. C. 24. Title to abandon highway by. — See 26 L. 451. § 1007. PRESCRIPTION. Occupancy for the period pre- scribed 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. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 75 pars, annotation. 56 C. 73, 75, 76 (applied and construed); 71 C. 456, 458, 12 P. 491, 492 (construed and applied); 83 C. 279, 289, 23 P. 386, 389 (applied); 97 C. 270, 273, 32 P. 231, 232 (construed and applied); 98 C. 346, 349, 350, 33 P. 209, 20 L. 730 (construed); 102 C. 675, 684, 34 P. 120 (applied); 106 C. 690, 695, 40 P. 18 (construed and applied); 109 C. 12, 18, 41 P. 781 (construed and applied); 128 C. 181, 187, 60 P. 677 (applied); 136 C. 292, 293, 68 P. 817 (construed and applied); 139 C. 521, 525, 73 P. 429 (applied); 140 C. 385, 388, 73 P. 1079 (applied); 141 C. 497, 501, 70 P. 298, 75 P. 58 (applied); 144 C. 19, 27, 77 P. 712 (applied); 144 C. 339, 344, 77 P. 929 (applied by analogy); 144 C. 578, 594, 77 P. 1113 (applied); 148 C. 759, 764, 84 P. 162 (applied to diversion of water); 152 C. 731, 733, 93 P. 878, 879 (not applicable to what tide lands); 3 C. A. 282, 283, 85 P. 129 (applied to adverse possession of land — prescriptive title against city and county of San Francisco); 3 C. A. 633, 639, 86 P. 985 (applied to water ditch); 4 C. A. 276, 282, 87 P. 553 (applied to water ditch); 18 F. 753, 787 (code is meager on prescription — what constitutes prescription must be determined by common law). Adverse possession- — ^What constitutes. — See 4 L. 321; 6 L. 833; 53 L. 941. Occupation under written instrument or judgment when deemed adverse. — See Kerr's Cyc. C. C. P. § 322 and note. Possession, when presumed. — Occupation deemed under legal title unless adverse. — See Kerr's Cyc. C. C. P. § 321 and note. Premises actually occupied under claim of title deemed to be held adversely. — See Kerr's Cyc. C. C. P. § 324 and note. 583 § 1007 CIVIL CODE. [Div.II,Pt.IV. Relation of landlord and tenant as affecting adverse posses- sion. — See Kerr's Cyc. C. C. P. § 326 and note. Right of possession not affected by descent cast. — See Kerr's Cyc. C. C. P. § 327 and note. Seizin within five years when necessary in action for real property. — See Kerr's Cyc. C. C. P. § 318 and note. Time of commencing actions for the recovery of real prop- erty. — See Kerr's Cyc. C. C. P. § 315 and note. What constitutes adverse possession under a claim of title not written. — See Kerr's Cyc. C. C. P. § 325 and note. What constitutes adverse possession under written instru- ment or judgment. — See Kerr's Cyc. C. C. P. § 323 and note. When actions by the people or their grantees are fo be brought within five years. — See Kerr's Cyc. C. C. P. § 317 and note. When action cannot be brought by grantee from the state. — See Kerr's Cyc. C. C. P. § 316 and note. 584 Tit.III,ch.I.] ACCESSION— FIXTURES. §§ 1013, 1014 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. [Islands.] In unnavigable streams. § 1018. Islands formed by division of stream. § 1019. Fixtures, removal of by tenant. § 1013. FIXTURES. When a person affixes his property to the land of another, without an agreement permitting him to remove it, the thing affixed, except as provided in section ten hundred and nineteen, belongs to the owner of the land, unless he chooses to require the former to remove it. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 224. See Kerr's Cyc. C. C. for 5 pars, annotation. 86 C. 335, 339, 24 P. 993, 994 (referred to); 31 P. 360, 362 (applied); 118 C. 635, 636, 50 P. 683 (applied). Appurtenances — As to, generally, see Kerr's Cyc. C. C. § 662 and note. Same — As to of ship, see note § 960, ante. Fixtures — What constitutes. — See Kerr's Cyc. C. C. § 660 and note; also note § 660, ante. Mines — Fixtures attached to. — See Kerr's Cyc. C. C. § 661 and note. Tenant's right to remove fixtures. — See Kerr's Cyc. C. C. § 1019 and note; also note § 660, ante. § 1014. ALLUVION. Where, from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation 585 § 1015 CIVIL CODE. [Div.II.Pt.IV. of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 395, held unconstitutional, see history, § 4 ante. r- See Kerr's Cyc. C. C. for 14 pars, annotation. 78 C. 634, 636, 21 P. 536, 537 (construed and applied). As to accretions to land caused by obstructions in river, see 16 A. R. 526. As to some features of tlie law of accretion applicaVile to Islands and navigable rivers, see 72 A. S. 280, 286. As to subjects of accretion and alluvion, see 35 A. S. 308-313. As to the difference between accretion and reliction, see 33 A. D. 820; also 72 A. S. 493; 78 A. S. 274; 5 L. 684; 12 L. 637; 7 W. & P. 6062. As to the title to alluvion artificially formed, see 33 A. D. 270, 276. Aerolite falling on land and imbedded therein becomes part of the soil. — See Kerr's Cyc. C. C. § 659, note pars. 2, 3. Alluvion and accretion. — See 35 A. S. 307; 51 1,. 425; 12 L. N. S. 687. Same— Definitions of.— See 22 A. S. 202; 1 W. & P. 99, 349. Alluvion and reliction, title acquired thereby. — See 33 A. D. 276. Right to follow accretions across division line previously submerged by the action of the water. — See 51 L. 425. The law of accretion to shore lands. — See 58 L.. 193-210. §1015. SUDDEN REMOVAL OF BANK. If a river or stream, navigable or not navigable, carries away, bj' sudden violence, a considerable and distinguishable part of a bank, and bears it to the opposite bank, or to another part of the same bank, the owner of the part carried away may reclaim it within a year after the owner of the land to which it has been united takes possession thereof. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. Change of boundary by submersion. — See 38 L. 850. Effect of sudden submersion upon title to land. — See 38 L. 849. Erosion or submersion, transfer of title by. — See 5 L. 688. Reclamation of submerged land. — See 5 L. 689. 586 Tit.III,ch.I.] ISLANDS— FIXTURES. §§ 1016-1019 §1016. ISLANDS, m MVIGABLE STREAMS. Islands and accumulations of land, formed in the beds of streams which are navigable, belong to the state, if there is no title or prescription to the contrary. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 99 C. 303, 309, 33 P. 1099 (applied); 135 C. 54V, 550, 67 P. 964 (applied); 149 C. 511, 513, 87 P. 200 (applied to accretions to island in navigable river as distinguished from accretions to ranch on mainland). As to islands and the title thereto, see 33 A. D. 281; 53 A. R. 215-221; 35 A. S. 312; 53 A. S. 289; 72 A. S. 280-286; 5 L. 684; 12 L. 632; 58 L. 673-678. Right to island attached to shore by accretion. — See 35 A. S.. 308; 72 A. S. 280; 6 L. N. S. 194. §1017. [ISLANDS], O U> NAVIGABLE STREAMS. An island, or an accumulation of land, formed in a stream which is not navigable, belongs 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 thf-ough the middle of the river. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 395, held unconstitutional, see history, § 4 ante. §1018. ISLANDS FORMED BY DIVISION OF STREAM. If a stream, navigable or not navigable, 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 belongs to such owner. History: Enacted March 21, 1872. § 1019. FIXTURES, REMOVAL OF BY TENANT. A tenant may remove from the demised 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 587 § 1019 CIVIL CODE. [Div.II.Pt.IV. the thing has, by the manner in which it is affixed, become an integral part of the premises. HiMtory: Original section, relating to abandonment of bed of stream, enacted March 21, 1872, was repealed and the above provision substituted therefor by Act March 30, 1874, Code Amdts. 1873-4, p. 225. See Kerr's Cyc. C. C. for 23 pars, annotation. 86 C. 3^5, 339, 24 P. 993, 994 (construed and applied); 31 P. 360, 362 (referred to in applying S1013); 99 C. 636, 639, 34 P. 321 (applied); 105 C. 15, 19. 38 P. 510 (applied); 118 C. 635, 636. 639, ,50 P. 683 (applied and cited); 2 C. A. 602, 604, 84 P. 279 (section includes everything that tenant may have affixed to premises for purposes therein designated). As to fixtures generally, see Kerr's Cyc. C. C. § 660 and note. As to appurtenances, see Kerr's Cyc. C. C. S 1013 and note. 588 Tit.III,ch.II.] PERSONALTY, ACCESSIONS. § 1025 CHAPTER II. ACCESSION TO PERSONAL PROPERTY. § 1025. Accession by uniting- several things. § 1026. Principal part, what. § 1027. Same. [The more valuable or bulky.] § 1028. Uniting materials and workmanship. § 1029. Inseparable materials. § 1030. Materials of several owners. § 1031. Wilful trespassers. § 1032. Owner may elect between the thing and its value. § 1033. Wrong-doer liable in damages. §1025. ACCESSION BY UNITING SEVERAL THINGS. 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, reimburse the value of the residue to the other owner, or surrender the whole to him. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 130 C. 316, 320, 80 A. S. 127, 62 P. 559 (applied). As to accession to personal property, see 1 Cent. Dig. col. 437, §§1-10; 1 Decen. Dig. p. 103, §§1, 2. As to title by accession to crop, fruit, and timber wrongfully severed, see 54 A. D. 583-597: 32 L. 422-434. As to title by labor bestowed on personal property, see 26 A. R. 525; 1 Encyc. L. 249. As to* whether title by accession to personal property taken by one not the owner can be acquired, see 44 A. S. 444-448. Accession of logs in boom, see 3 L. 408. Alterations in the form of property which do not affect the title.— See 4 A. D. 369; 5 A. D. 205. Application of the doctrine of accession to personal property. — See 1 Encyc. L. 248-251. Same — When annexed to realty. — See 1 Encyc. L. 255. Personal property taken by one not the owner as to whether title to accession may be acquired by. — See 44 A. S. 444. Title by accession — General doctrine. — See 32 L. 422-433. Same — To crops, fruit and timber wrongfully severed. — See 32 L. 422. 589 §§ 1026-1029 CIVIL CODE. [Div.TI.Pt.IV. § 1026. PRIIVCIPAL PART, WHAT. 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 united without the knowledge of its owner, who may, in the latter case, require it to be separated and returned to him, although some injury should result to the thing to which it has been united! History: Enacted March 21, 1872. As to accession generally, see note § 1025, ante. As to what is principal part, see Kerr's Cyc. C. C. § 1026, note. §1027. SAME. [THE MORE VALUABLE OR BULKY.] If neither 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 prinicpal part. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to accession generally, see note § 1025, ante. As to test and proportion of values, see 1 Encyc. L. 251; 1 Cyc. 224. See also Kerr's Cyc. C. C. § 1025 and note. §1028. UNITING MATERIALS A'ND WORKMANSHIP. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workmanship, unless the value of the workmanship exceeds the value of the materials, in which case tha thing belongs to the maker, on reimbursing the value of the mate- rials. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. As to accession generally, see note § 1025, ante. § 1029. INSEPARABLE MATERIALS. Where one has made use of materials which in part belong to him and in part to another, in order to form a thing of a new description, without having destroyed any of the materials, but in such a 590 Tit.III,ch.II.] MATERIALS— TRESPASS. §§1030,1031 way that they cannot be separated without inconvenience, the thing formed is common to both proprietors; in propor- tion, 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 workmanship. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to accession generally, see note § 1025, ante. §1030. MATERIALS OF SEVERAL OWNERS. When a thing has been formed by the admixture of several materials of different owners, and neither can be considered the prin- cipal substance, an owner without whose consent the admixt- ure was made may require a separation, if the materials can be separated without inconvenience. If they cannot be thus separated, the owners acquire the thing in common, in pro- portion to the quantity, quality, and value of their materials; 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 128 C. 637, 641, 61 P. 283 (applied). As to accession generally, see note § 102.'j, ante. As to confusion of goods and rights of owner, see 6 Encyc. L. 592, 593; 8 Cyc. 571, 572. As to confusion of goods, what is, and effect of, see 54 A. D. 589 et seq. § 1031. WILFUL TRESPASSERS. The foregoing sections of this article are not applicable to cases in which one wil- fully uses the materials of another without his consent; but, in such cases, the product belongs to the owner of the mate- rial, if its identity can be traced. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to accession generally, see note § 1025, ante. 591 §§ 1032, 1033 CIVIL CODE. [Div.II,Pt.IV. §1032. OWNER MAT ELECT BETWEEN THE THING AND ITS VALUE. In all cases where one whose material has been used without his knowledge, in order to form a product of a different description, can claim an interest in such product, he has an option to demand either restitution of his material in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. History: Enacted March 21, 1872. § 1033. WRONG-DOER LIABLE IN DAMAGES. One who wrongfully employs materials belonging to another is liable to him in damages, as well as under the foregoing provisions of this chapter. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 106 C. 202, 205 (erroneously cited for § 1053), 39 P. 531, 532 (same error). As to accession generally, see note § 1025, ante. 592 Tit.IV.ch.I.art.I.] TRANSFER, WHAT. §1039 TITLE IV. TRANSFER. [For Commissioners' comment on this title, see Kerr's Cyc. C. C] 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 Property, §§1158-1218. V. Unlawful Transfers, §§ 1227-1231. Article I. II. III. IV. V. CHAPTER I. TRANSFERS IN GENERAL. Delnition of Transfer, §§ 1030, 1040. What May Be Transferred, §§ 1044-1041 Mode of Transfer, §§ 1052-1060. Interpretation of Grants, §§ 1066-1072. Effect of Transfer, §§ 1083-1085. ARTICLE I. DEFINITION OF TRANSFER. § 1039. Transfer, what. § 1040. Voluntary transfer. § 1039. TRANSFER, WHAT. Transfer is an act of the parties, or of the law, by which the title to property is con- veyed from one living person to another. Hit^tory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 58 C. 11, 15 (cited); 58 C. 457, 484 (cited); 106 C. 202, 205,-39 P. 531 (cited); 145 C. 431, 434, 78 P. 962 (applied); 1 C. A. 659, 664, 82 P. 1075 (not applicable to promissory notes descended from dead persons to living persons — change of position of parties effected by law). As to effect of transfer of bill of lading as passing title, see 55 A. D. 299. 593 §§1040,1044 CIVIL CODE. [Div.II.Pt.IV. § 1040. VOLUNTARY TRANSFER. A voluntary transfer is an executed contract, subject to all rules of law concerning contracts in general; except that a consideration is not neces- sary to its validity. ]liK<<»r.v: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 45 pars, annotation. 75 C. 525, 532, 7 A. S. 189. 17 P. 689. 692 (applied*; 79 C. 525. 5.30, 12 A. S. 162. 21 P. 984, 986. 4 L. 826 (construed); 95 C. 63, 74 (applied but erroneously cited as § 1040 C. C. P.), 30 P. 301, 303 (correct citation); 122 C. 426. 428, 55 P. 143 (applied); 143 C. 528, 533, 77 P. 471, 473 (applied); 145 C. 431, 434, 78 P. 962 (applied). As to voluntary conveyances, see 14 A. D. 703-709; 14 A. S. 739-754; 65 A. S. 798-801. ARTICLE II. WHAT MAY BE TRANSFERRED. § 1044. What may be transferred. § 1045. Possibility. § 1046. Right of re-entry can be transferred. § 1047. Owner ousted of possession may transfer. § 1044. WHAT MAY RE TRANSFERRED. Property of any kind may be transferred, except as otherwise provided by this article. HI.«rtory! Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 74 C. 619, 623, 5 A. S. 479, 16 P. 501, 503 (cited); 84 C. 281, 283, 18 A. S. 179, 24 P. 42, 43 (construed); 109 C. 29, 37, 41 P. 1024 (construed); 145 C. 431, 434, 78 P. 962 (referred to); 151 C. 479. 483, 91 P. 152 (title to property, after wrongful conversion may be transferred); 1 C. A. 587, 591, 82 P. 542 (charter party and contract may be transferred without consent of owners); 7 C. A. 248, 253, 94 P. 252, 253 (cited). Adverse possession — Transferability of title claimed by. — See Kerr's Cyc. C. C. § 1047 and note. Burden of obligation not transferable. — See post § 1457 and note. Chose in action is assignable. — See Kerr's Cyc. C. C. § 954 and note. 594 i Tit.IV,ch.I,art.II.] RIGHT OP ENTRY. §§1045-1047 Non-neg-otiable instruments may be transferred. — See Kerr's Cyc. C. C. § 1459 and note. Possibility not transferable. — See Kerr's Cyc. C. C. § 1045 and note. Right arising- out of obligation is transferable. — See Kerr's Cyc. C. C. § 1458 and note pars. 3, 4. Right of re-entry or of repossession is transferable. — See Kerr's Cyc. C. C. § 1046 and note. Servitudes— Grant of.— See Kerr's Cyc. C. C. § 802 and note. § 1045. POSSIBILITY. A mere possibility, not coupled with an interest, cannot be transferred. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 74 C. 619, 623, 5 A. S. 479, 16 P. 501, 503 (referred to); 104 C. 570, 584, 43 A. S. 134, 38 P. 414, 32 L. 595 (construed); 138 C. 355! 361, 70 P. 1076 (applied); 141 C. 366, 370, 74 P. 993 (con- strued and applied); 7 C. A. 248, 253, 94 P. 252, 253 (cited). Possibility is not interest of any kind. — See Kerr's Cyc. C. C. § 700 and note. § 1046. EIGHT OF RE-ENTKY CAN BE TRANSFERRED. A right of re-entry, or of repossession for breach of condi- tion subsequent, can be transferred. History: Enacted March 21, 1872. 74 C. 619, 623, 5 A. S. 479, 16 P. 501, 503 (landowner may make valid lease before former leases have expired and tenants have surrendered back possession). § 1047. OWNER OUSTED OF POSSESSION MAY TRANS- FER. Any person claiming title to real property in the adverse possession of another may transfer it with the same effect as if in actual possession. History: Enacted March 21, 1872. 55 C. 126, 128 (cited); 74 C. 619, 623, 5 A. S. 479, 16 P. 501, 503 (cited); 151 C. 479, 483, 91 P. 152 (title to property, after wrongful conversion, may be transferred). 595 §§ 1052, 1053 CIVIL CODE. [Div.II.Pt.'IV. ARTICLE III. MODE OF TRANSFER. § 1052. When oral. § 1053. Grant, what. § 1054. Delivery necessary. § 1055. Date. § 1056. Delivery to grantee is necessarily absolute. § 1057. Delivery in escrow. § 1058. Surrendering- or canceling grant does not reconvey. § 1059. Constructive delivery. § 1060. Gratuitous grants take effect immediately; exception [repealed]. § 1052. WHEN ORAL. A transfer may be made without writing, in every case in which a writing is not expressly required by statute. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 70 C. 449, 452, 11 P. 659, 661 (applied); 121 C. 376, 377, 53 P. 821 (construed and applied); 128 C. 527, 530, 61 P. 77 (construed and applied); 128 C. 627, 633 (erroneously citing this section instead of §1053), 61 P. 371 (same error); 144 C. 681, 691, 78 P. 270 (applied); 153 C. 245, 250, 94 P. 1047 (valid trust in personal property may be created by parol). Frauds — Statute of — -Contracts which must be in writing. — See Kerr's Cyc. C. C. § 1624 and note. Trusts in real property must be in writing. — See Kerr's Cyc. C. C. §§ 852, 853 and notes. § 1053. GRANT, WHAT. 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 225. See Kerr's Cyc. C. C. for 36 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what); 58 C. 11, 15 (referred to); 67 C. 547, 556, 56 A. R. 726, 4 P. 473, 478, 8 P. 46 (referred to); 93 C. 664, 668, 29 596 Tit.IV,ch.I,art.III.] DELIVERY, NECESSITY OF. § i054 P. 256, 257 (cited); 101 C. 238, 240, 35 P. 772 (referred to); 106 C. 202, 205 (erroneously cited as §1033), 39 P. 531, 532 (same error); 128 C. 627, 633 (erroneously citing §1052 instead of this section), 61 P. 371 (same error); 134 C. 603, 605, 65 P. 321, 66 P. 860 (cited); 143 C. 528, 536, 77 P. 471 (cited); 143 C. 646! 649, 77 P. 657 (deed of conveyance, what is and effect of); 6 C. A. 144, 146, 91 P. 658, 659 (construed with other sections- gift before death of savings-bank pass-book with written order for payment). Conclusive on purchaser — To what extent grant is. — See Kerr's Cyc. C. C. § 1107 and note. Condition precedent — Grant on. — See Kerr's Cyc. C. C. §1110 and note. Condition subsequent — Grant on. — See Kerr's Cyc. C. C. § 1109 and note. Construction of grants. — See Kerr's Cyc. C. C. §§ 1066-1072 and notes. Deed — Presumption as to time of delivery. — See Kerr's Cyc. C. C. § 1055 and note. Delivery necessary. — See Kerr's Cyc. C. C. § 1054 and note. Form of grant. — See Kerr's Cyc. C. C. § 1092 and note. Fee simple presumed to pass by grant. — See Kerr's Cyc. C. C. § 1105 and note. Homestead — Grant of. — See post § 1243 and note. Implied Covenants — Effect of use of word "grant." — See post § 1113 and note. "Instrument" defined. — See Kerr's Cyc. C. C. §§ 709, 994, 1056, 1059, 1091, 1093-1095, 1106. 1107, 1110, 1135, 1158. 1161, 1162, 1165, 1170, 1172, 1180-1183, 1185, 1186, 1188, ' 1190. 1193, 1195-1205, 1207, 1215, 1216, 1227-1229, 1451, 1629, 3087, 3413, 3414 and notes. Rents, reversions, and remainders — Grant of. — See Kerr's Cyc. C. C. § 1111 and note. Surrendering or canceling grant — Effect of redelivery. — See Kerr's Cyc. C. C. § 1058 and note. Transfer — What constitutes. — See Kerr's Cyc. C. C. § 1039 and note. § 1054. DELIVERY NECESSARY. A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 57 pars, annotation. 51 C. 73, 74 (not applicable to grants made by or under authority of the United States); 67 C. 547, 556. 56 A. R. 726. 4 P. 473, 478, 8 P. 46 (applied with other sections*: lOl r. '.-ns. 597 §§ 1055, 1056 CIVIL CODE. [Div.II,Pt.IV. 240, 35 P. 772 (applied); 127 C. 464, 467, 59 P. 897 (applied); 143 C. 528, 536, 77 P. 471 (cited); 6 C. A. 144, 146, 91 P. 658, 659 (construed with other sections — gift before death of savings- bank pass-book with written order for payment). C. O. D. — Duty of buyer to t»ay price. — See Kerr's Cyc. C. C. § 1784 and note. Constructive delivery. — See Kerr's Cyc. C. C. § 1059 and note. Contract takes effect upon delivery. — See Kerr's Cyc. C. C § 1626 and note. Date — Grant presumed to have been delivered at its date. — See Kerr's Cyc. C. C. § 1055 and note. Dominion or control over instrument must be parted with by grantor in order to constitute delivery. — See 63 A. D. 244, 245. Escrow. — See Kerr's Cyc. C. C. § 1057 and note. Frauds, statute of — Delivery of part of goods sold. — See Kerr's Cyc. C. C. § 1624 par. 4 and note. Gift — 'Necessity for delivery. — See Kerr's Cyc. C. C. § 1147 and note. Limitation, condition, or interest — Delivery determines time. — See Kerr's Cyc. C. C. § 749 and note. Pledge and collateral security — Delivery necessary. — See Kerr's Cyc. C. C. § 2988 and note. Tenants in common and joint tenants — Delivery of shares by depositary.^ — See 'Kerr's Cyc. C. C. § 1827 and note. § 1055. DATE. A grant duly executed is presumed to have been delivered at its date. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 61 C. 148 (applied); 75 C. 240, 243, 7 A. S. 151, 17 P. 193, 194 (construed and applied); 101 C. 238, 240, 35 P. 772 (referred to); 108 C. 264, 268, 41 P. 301 (applied); 50 P. 434, 436 (cited); 120 C. 311, 315, 49 P. 563, 52 P. 586 (cited); 122 C. 358, 362, 55 P. 132 (construed and applied); 135 C. 312, 314, 67 P. 279 (applied); 135 C. 316, 319, 67 P. 778 (cited); 2 C. A. 351, 352, 354, 83 P. 455 (pre- sumption is not conclusive — it may be controverted by other evidence); 4 C. A. 647, 649, 88 P. 806 (satisfactory evidence to overcome presumption of delivery is required when). §1056. DELIVERY TO GRANTEE IS NECESSARILY ABSOLUTE. A grant cannot be delivered to the grantee con- ditionally. Delivery to him, or to his agent as such, is neces- sarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made. History: Enacted March 21, 1872. 598 TitlV.ch.I.art.III.] ESCROW. § 1057 See Kerr's Cyc. C. C. for 3 pars, annotation. 55 C. 564, 565 (meaning- of "instrument" — it does not embrace wliat); 101 C. 238, 240, 35 P. 772 (referred to); 137 C. 527, 5:51. 70 P. 556 (referred to). Party or agent as depositary of escrow. — See K'Mt's Cyc. C. C. § 1057 and note. § 1057. DELIVERY IX ESCKOW. A grant may be depos- ited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depos- itary, it will take effect. While in possession of the third per- son, and subject to condition, it is called an escrow. History: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 55 pars, annotation. 101 C. 238, 240, 35 P. 772 (referred to); 125 C. 146, 149, 57 P. 772 (lield not applicable); 147 C. 702, 705, 82 P. 304 (what is not effectual delivery of deed, or passage of title); 151 C. 550. 552, 91 P. 329 (effect of delivery of deed to third person for delivery to grantee upon grantor's death). DELIVERY IN ESCROW. As to delivery of deed to third person, generally, see 9 L. N. S. 224; 9 L. N. S. 317. Deeds delivered in — Generally, see 53 A. S. 555. Same — Conditions and contingencies. — See 3 A. P. 415: 7 A. D. 375; 3 W. & P. 2465. Same — Depositories. — See 21 A. R. 356; 21 A. R. 4 10; 3 W. & P. 2466. Same — Learning in escrow and when deemed pres.-ntly operative.— See 28 A. D. 408. Duty and obligation of depository. — See 10 L. 471. Effect of. — See 5 L>. 697. Same— Delivery of deed— As further security for mortgage debt.— See 2 L. N. S. 628. Same— Same— In escrow as to bona fide purchaser from grantee who has wrongfully obtained and recorded the deed.— See 17 L. 511. Same — To bona tide purchaser from grantee wlio lias wrong- fully obtained and recorded deed. — See 17 L. 511. Same — Upon of the imposition of conditions in violation of vendor's contract. — See 11 L. N. S. 1183. Escrow defined.— ^ee 5 L. 696; 10 L. 469; 3 W. & P. 2464. Necessity of delivery to third person. — See 5 L. 696; 12 L. 175. Revocation of deed.— See 10 L. 471, 12 L. 175. Right of grantor to revoke deed delivered in to stranger, to 599 §§ 1058, 1059 CIVIL CODE. [Div.II.Pt.IV. be delivered by the latter to grantee after grantor's death. — See 4 L. N. S. 816. Testamentary deed — Deposit to take effect on death of grantor. — See Kerr's Cyc. C. C. § 1057, note pars. 17, 18. To third party to be delivered upon grantors death. — See 1 A. C. 864. To whom may be delivered.- — See 5 L. 696; 12 L. 175. When escrow takes effect. — See 5 L. 697. When second delivery ineffectual. — See 5 L. 697. When title passes to grantee. — See 10 L. 470. § 1058. SURRENDERING OR CANCELING GRANT DOES NOT RECONYEY. Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 147 C. 702, 705, 82 P. 304 (applied — deed in favor of creditor of grantor delivered in escrow); 151 C. 550, 552, 91 P. 329 (effect of delivery of deed to third person for delivery to grantee upon grantor's deatli). § 1059. CONSTRUCTIYE DELIYERY. Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases: 1. Where the instrument is, by the agreement of the par- ties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to imme- diate delivery; or, 2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what); 67 C. 547, 556, 557, 56 A. R. 726, 4 P. 473, 478, 8 P. 46 (construed); 128 C. 531, 546, 58 P. 180, 61 P. 99 (construed with § 1059 — rule as to delivery of written instruments is same as in regard to grants — delivery of life insurance police — delivery is matter solely of intention). Gift — Necessity for actual or symbolical delivery. — See Kerr's Cyc. C. C. § 1147 and note. 600 Tit.IV,ch.I,art.IV.] interpretation. §§1060,1066 Instrument defined. — See Kerr's Cyc. C. C. §§709, 1053. 1056. post §§1091, 1093-10-95, 1106, 1107, 1110, 1135, 1158, 1161,' II62' 1165, 1170, 1172, 1180-1183, 1185, 1186, 1188, 1190. II93' 1195-1205, 1207, 1215, 1216, 1227-1229, 1629, 3087, 3413, 3414 and notes. Question for jury as to delivery. — See Kerr's Cyc. C. C. § 1054 and note. § 1060. GRATUITOUS GRWTS TAKE EFFECT L>r:»IEDI. ATELY; EXCEPTION (repealed). History: Enacted March 21, 1872; repealed Marcli 30, 1874, Code Amdts. 1873-4, p. 225. 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 r.ni.i in.l.rs. § 1072. Words of inheritance unnecessary. § 1066. GRANTS, HOW INTERPRETED. Grants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided in this article. HLstory: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 97 pars, annotation. 103 C. 516. 518, 37 P. 465 (cited); 104 C. 298, 300, 37 P. 1049 (construed and applied); 150 C. 39, 45, 87 P. 1097 (applied to deed of quarry). As to after-acquired title, when passes to grantee, see 58 A. D. 583. As to construction of conditions precedent and subsequent in deeds, see 70 A. S. 829, 832. As to construction of conditions subsequent in deeds, see 57 A. R. 63; 31 A. S. 46; 79 A. S. 747. As to construction of deeds in general, see 13 L. 31S. As to effect of quitclaim deeds, see 53 A. R. 749. As to interpretation of contracts, see post §§ 1635 et seq. 601 §§ 1067-1069 CIVIL CODE. [Div.II,Pt.IV. As to when words of present grant do not convey title, see 48 A. D. 45. As to words sufficient to constitute conveyance, see 31 A. S. 26. § 1067. LIMITATIONS, HOW CONTROLLED. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 395, lield unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 18 pars, annotation. 86 C. 500, 521, 522, 24 P. 172, 25 P. 64 (construed and applied). § 1068. RECITALS, WHEN RESORTED TO. If the oper- ative words of a grant are doubtful, recourse may be had to its recitals to assist the construction. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. As to notice by recitals in deed, see 16 A. D. 754; also notes §§ 18, 19, ante. § 1069. INTERPRETATION AGAINST GRANTOR. A grant is to be interpreted in favor of the grantee, except that a resei-vation 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 83 C. 56, 63, 23 P. 222, 224 (construed and applied); 94 C. 195, 203, 29 P. 491 (applied); 108 C. 38, 44, 41 P. 330 (applied); 118 C. 160, 175, 50 P. 277 (applied); 128 C. 285, 288, 60 P. 855 (referred to with §1442 in construing a deed to lots); 137 C. 401, 70 P. 282 (applied without citation); 138 C. 583, 586, 72 P. 171 (applied); 144 C. 19, Sa, 77 P. 712, 69 P. 228 (construed and applied); 150 C. 39, 45, 87 P. 1097 (applied to deed of quarry); 3 C. A. 727, 730, 86 P. 994 (applied to deed executed while provisions as to powers were in force); 4 C. A. 219, 223, 88 P. 290 (applied — construction of lease in favor of lessee); 7 C. A. 55, 69, 93 P. 391, 396 (this section must be read in connection with §1654); 7 C. A. 106, 111, 93 P. 900, 903 (restric- tion on presumption as to easement). 602 Tit.IV,ch.I,art.IV.] "HEIRS" AND "ISSUE." §§ 1070-1072 § 1070. 1HKE( 0N( ILABLE PROVISIONS. If several parts of a grant are absolutely irreconcilable, the former part pre- vails. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 94 C. 195, 203, 29 P. 491 (applied); 103 C. 516, 518, 37 P. 465 (construed); 104 C. 298, 300, 37 P. 1049 (applied); 150 C. 39, 45, 87 P. 1097 (applied to deed of quarry); 7 C. A. 55. 69, 93 P. 391, 396 (referred to in construing §§ 1069 and 1654). §1071. MEANING OF "HEIRS" AND ^'ISSLE" IN CER- TAIN REMAINDERS. 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 issue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor. History: Enacted March 21, 1872, founded upon § 2, Act 1855. Stats. 1855, p. 171. See Kerr's Cyc. C. C. for 4 pars, annotation. As to phrase "dying without issue," meaning and doflnition of. see 55 A. R. 774. §1072. >VORDS OF INHERITANCE UNNECESSARY. Words of inheritance or succession are not requisite to trans- fer a fee in real property. History: Enacted March 21, 1872, founded upon § 3. Act 1S55. Stats. 1855, p. 171. See Kerr's Cyc. C. C. for 8 pars, annotation. 68 C. 559, 561, 10 P. 197, 198 (applied witli § 1106 to grant from hushand to wife); 91 C. 74. 81, 27 P. 539. 540, 541 (con- strued and applied); 104 C. 298, 301, 37 P. 1049 (construed and applied); 138 C. 583, 586, 72 P. 171 (applied). 603 §§ 10S3-1085 CIVIL CODE. [Div.II.Pt.IV. ARTICLE V. EFFECT OF TRANSFER. § 1083. What title passes. § 1084. Incidents. § 1085. Grant may inure to benefit of stranger. § 1083. WHAT TITLE PASSES. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 92 C. 514, 524, 27 A. S. 158, 28 P. 593, 596 (referred to); 143 C. 528, 536, 77 P. 471, 474 (applied with other sections); 145 C. 431, 434, 78 P. 962 (applied to assignment of judgment); 6 C. A. 144, 146, 91 P. 658 (construed with other sections — gift before death of savings-bank pass-book with written order for payment). § 1084. INCIDENTS. The transfer of a thing transfers also all its incidents, unless expressly excepted; but the trans- fer of an incident to a thing does not transfer the thing itself. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 38 pars, annotation. 69 C. 217, 221, 58 A. R. 558, 10 P. 409, 411 (construed and applied); 80 C. 310, 313, 22 P. 178, 179 (applied): 92 C. 514, 524, 27 A. S. 158, 28 P. 593, 596 (cited); 104 C. 10, 12, 37 P. 626 (construed and applied); 120 C. 488, 490, 493, 52 P. 843, 40 L. 476 (cited and applied); 138 C. 405, 411, 71 P. 506 (cited); 145 C. 431, 434, 78 P. 962 (applied to assignment of judgment). For further illustrations of the doctrine, see Kerr's Cyc. C. C. P. § 662 and note. Franchise passes under § 388 ante. — See Kerr's Cyc. C. C. P. § 662 note pars 13-15. 1085. GRANT MAY INURE TO BENEFIT OF STRANGER. A present interest, and the benefit of a condition or covenant 604 Tit.IV.ch.II.art.I.] tiiansfeh. Rr-:QrisiTi:s. g |091 respecting property, may be taken by any natural person under a grant, although not named a party thereto. IliNtory: Enactid March 21. 1872. As to cominl.ssloners' comment on above section, seo Ki-rr'« Cyc. C. C. S 1085, note. CHAPTER II. TRANSFER OF REAL PROPERTY. Article I. Mode of Transfer, SS 1091-1096. II. Effect of Transfer, S5 1104-1 1 ir>. ARTICLE I. MODE OF TRANSFER. § 1091. Requisites for transfer of certain estatts. § 1092. Form of grant. § 1093. Grant by married woman, how acknowledged. § 1094. Power of attorney of married woman, how acknowl- edged. S 1095. Attorney in fact, liow must execute for prin( ipal. § 1096. Conveyance of real estate wlien name of person haJ» been changed. §101)1. HE(aiSI'IKS F0|{ TK.VNSFKK (H (IIMVIN ESTATES. An estate in r(>al property, other than an estate at will or for a term not exceeding one year, can he trans- ferred only by operation of law. or by an instrument In writ- ing, subscribed by the party dispo.sjng of the same, or by his agent thereunto authorized by writing. IliHtoryi Enacted March 21. 1S72. See Kerr's Cyc. C. C. for 26 pars, annotation. 51 C. 258, 260 (applied); 55 C. 564. 565 (meaning of •InBtrii- ment" — It does not embrace what): 13 C. 541. 544. 15 P. 98. 95 (applied): 81 C. 205. 207, 208. 22 P. 550, 551 (applied): 101 C. 405, 408, 40 A. S. 65. 35 P. 1019 (construed and applied): 108 C. 670, 674, 41 P. 806 (construed and applied): 122 C. 41S. 4?0. 55 J>. 145 (cited): 130 C. 4."i5. 457. 62 P. 738 (referred t-" 605 §§ 1092, 1093 CIVIL CODE. [Div.II,Pt.IV. C. 320, 322, 64 P. 410 (construed); 134 C. 282, 284, 66 P. 485 (construed and applied). As to power of attorney, and deed executed under, see 81 A. D. 776. Written instrument as indispensable evidence of transfer. — See Kerr's Cyc. C. C. P. § 1971 and note. § 1092. FORM OF GRANT. 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 situated 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 described by the name, as for instance, 'The Norris Ranch'). "Witness my hand this (insert day) day of (insert month), 18... "A. B." History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 44 C. 132, 138 (applied); 67 C. 536, 539, 8 P. 63, 65 (applied); 72 C. 78, 82, 13 P. 152, 154 (applied); 83 C. 187, 193, 23 P. 361, 362, 364 (construed and applied); 91 C. 74, 81, 27 P. 539, 540, 541 (cited); 105 C. 173, 183, 38 P. 715 (applied); 120 C. 311, 315, 49 P. 563, 52 P. 586 (applied); 122 C. 413, 420, 55 P. 145 (cited); 1 C. A. 159, 162, 81 P. 1015 (general description of land is sufficient). Construction of descriptive part of conveyance of real estate. — As to, see Kerr's Cyc. C. C. P. § 2077 and note. § 1093. GRANT BY MARRIED WOMAN, HOW ACKNOWL- EDGED. A grant or conveyance of real property made by a married woman may be made, executed, and acknowledged in the same manner and has the same effect as if she were unmarried. History: Enacted Marcli 21, 1872; amended March 14, 1895, Stats, and Amdts. 1895, p. 53. See Kerr's Cyc. C. C. for 29 pars, annotation. 53 C. 456, 460 (applied); 55 C. 52, 56, 57 (applied); 55 C. 564, 565 (meaning of "instrument" — it does not embrace what) ; 59 C. 507, 513, 514 (applied); 68 C. 135, 140, 58 A. R. 5, 8 P. 705 (applied in dis. op.); 74 C. 345, 350, 16 P. 189, 192 (applied); 80 C. 65, 67, 22 P. 69, 70 (applied); 83 C. 521, 536, 537, 23 P. 695,, 699 606 Tit.IV,ch.II,art.I.] POWER OF ATTORNEY. §§ 1094, 1095 (applied); 91 C. 606, 607, 608, 610, 27 P. 934, 935, 936 (applied); 101 C. 532, 535, 40 A. S. 81. 35 P. 1054, 1055 (applied — certificate of acknowledgment is not conclusive); 102 C. 202, 207, 36 P. 358 (applied); 122 C. 341, 348, 349, 68 A. S. 35, 55 P. 3 (applied): 123 C. 491, 494, 495, 497, 56 P. 254 (applied). Acknowledgment of deeds by married woman. — See 108 A. S. 529, 561; 3 L. 826; 11 L. 193. Assent of husband to conveyance by wife. — See Kerr's Cyc. C. C. § 162 and note. Certificate of acknowledgment, conclusiveness of. — See Kerr's Cyc. C. C. § 1185 and note. Deed of purchase by, effect of. — See 57 A. D. 194. Defectively acknowledged deed of, power of equity to enforce. —See 19 A. D. 230. Form and sufficiency of acknowledgment, generally. — See Kerr's Cyc. C. C. § 1185-1187 and notes. § 1094. POWER OF ATTORNEY OF MARRIED WOMAX, HOW ACKNOWLEDGED. A married woman may make, execute, and revoke powers of attorney for the sale, convey- ance, or encumbrance of her real or personal estate, which shall have the same effect as if she were unmarried, and may be acknowledged in the same manner as a grant of real property. History: Enacted March 21, 1872, founded upon S 1, Act April 3, 1863, Stats. 1863, p. 165; amended March 9, 1895. Stats, an.l Amdts. 1895, p. 39. See Kerr's Cyc. C. C. for 10 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what). §109r>. ATTORNEY IN FACT, HOW xMLST EXECUTE FOR PRINCIPAL. When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it. and his own name as attorney in fact. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what). 607 §§ 1096, 1104 CIVIL CODE. [Div.II,Pt.IV. § 1096. CONVEYANCE OF REAL ESTATE WHEN NAME OF PERSON HAS BEEN CHANGED. Any person in whom the title of real estate is vested, who shall afterwards, from any cause, have his or her name changed, must, in any conveyance of said real estate so held, set forth the name in which he or she derived title to said real estate. History: Enacted, on recommendation of Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 396, held uncon- stitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 602; a codification of § 1, Act March 11, 1874, Stats. 1873-4, p. 345. Misnomer in grantor — "Redman" instead of "Redmond," effect of. — See Kerr's Cyc. C. C. § 1096, note. ARTICLE II. EFFECT OP TRANSFER. § 1104. What easements pass with 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. Grants on condition, when absolute. § 1111. Grant of rents, reversions, and remainders. § 1112. Boundary by highway, what passes. § 1113. Implied covenants. § 1114. What the term "encumbrances embraces. § 1115. Lineal and collateral warranties abolished. § 1104. WHAT EASEMENTS PASS WITH PROPERTY. 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 person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. History: Enacted March 21, 1872. 608 Tit.IV,ch.II,art.II.] SUBSEQUENT TITLE. §§1105,1106 See Kerr's Cyc. C. C. for 19 pars, annotation. 53 C. 135 (construed and applied); 69 C. 217, 221, 58 A. R. 558, 10 P. 409, 411 (applied); 73 C. 550, 554, 15 P. 131, 134 (cited); 102 C. 362, 367, 41 A. S. 188, 36 P. 778 (construed and applied); 116 C. 689, 698, 48 P. 58 (cited); 120 C. 488, 490, 491, 492, 493, 52 P. 843, 40 L. 476 (cited); 138 C. 405, 411, 414, 71 P. 506 (con- strued and applied); 138 C. 517, 520, 521, 71 P. 624 (construed and applied); 146 C. 435, 440, 80 P. 623 (applied to deed to water company); 153 C. 152, 156, 94 P. 613 (tract of land impressed with easement of water ditch for irrigating- purposes, in favor of other tracts); 7 C. A. 106, 111, 93 P. 900, 901 (conveyance of lot carries right to use stairway when). §1105. TVHEX FEE SIMPLE TITLE IS PRESUMED TO PASS. A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 58 C. 11, 15 (cited); 68 C. 559, 561, 10 P. 197, 198 (construed and applied); 84 C. 611, 614, 615, 22 P. 1142, 24 P. 313 (construed and applied); 88 C. 263, 267, 26 P. 106 (erroneously cited as C. C. P.); 91 C. 74, 81, 27 P. 539, 540, 541 (cited); 103 C. 516, 51S. 37 P. 465 (construed as not applicable); 104 C. 298, 299. 37 P. 1049 (applied); 105 C. 173, 182, 38 P. 715 (construed and applied); 149 C. 178, 190, 86 P. 603 (rule of common law, limit- ing and qualifying effect and meaning of granting clause of deed is part of the code). As to effect of quitclaim deed to convey title, see 53 A. R. 749. After-acquired title — When will pass, — as to, see Kerr's Cyc. C. C. § 1106 and note. § 1106. SUBSEQUENTLY ACQUIRED TITLE PASSES BY OPERATION OF LAW. Where a person purports by proper instrument to grant real property in fee simple, and subse- quently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901. Stats, and Amdts. 1900-1, p. 396, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 27 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace What); 68 C. 559, 561, 10 P. 197, 198 (construed and applied with Kerr's C. C— 20 609 §§ 1107, 1108 CIVIL CODE. [Div.II,Pt.IV. §1072 to grant from husband to wife); 84 C. 611, 614, 22 P. 1142, 24 P. 313 (cited); 96 C. 206, 209, 31 P. 37 (applied and con- strued); 103 C. 108, 110, 37 P. 188 (applied); 141 C. 366, 371, 74 P. 993 (construed and applied). §1107. GRANT, HOW FAR COJfCLUSIVE ON PUR- CHASER. Every grant of an estate in real property is con- clusive against the grantor, also against every one subse- quently claiming under him, except a purchaser or encum- brancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that is first duly recorded. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 55 C. 564, 565, 566 (meaning of "instrument" — it does not embrace what); 75 C. 552, 555, 557, 558, 17 P. 680, 681, 682, 683 (construed and applied); 96 C. 298, 306, 31 A. S. 209, 31 P. 166 (construed and applied); 97 C. 270, 273, 32 P. 231 (cited); 97 C. 575, 582, 583, 33 A. S. 209, 32 P. 579, 21 L. 33 (construed and applied); 100 C. 590, 591, 35 P. 170 (applied); 109 C. 42, 48, 49, 41 P. 799 (construed); 113 C. 153, 158, 159, 45 P. 267 (construed and applied); 120 C. 488, 490, 52 P. 843, 40 L. 476 (cited); 122 C. 509, 513, 68 A. S. 61, 55 P. 390 (cited); 126 C. 600, 604, 59 P. 130 (applied). As to sheriff's certificate of sale, see Kerr's Cyc. C. C. § 1107, note par. 12 this note. As to writ of attachment, see Kerr's Cyc. C. C. § 1107, note pars. 16, 17 this note. Good faith, — as to, see Kerr's Cyc. C. C. § 1214 and note. Prior recordation, — as to, see Kerr's Cyc. C. C. § 1214 and note. Rule prior to adoption of code was changed by such adoption. — See 55 C. 564. Valuable consideration, — as to, see Kerr's Cyc. C. C. § 1214 and note. § 1108. CONVEYANCES BY OWNER FOR LIFE OR FOR YEARS. A grant made by the owner of an estate for life or years, purporting to transfer a greater estate than he could lawfully transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 610 Tit.IV,ch.II,art.II.] CONDITION. §§1109,1110 § 1109. GRANT MADE ON CONDITION SUBSEQUENT. Where a grant is made upon condition subsequent, and is subsequently defeated by the nou-perforniance of the condi- tion, the person otherwise entitled to hold under the grant must reconvey the property to the grantor or his successors, by grant, duly acknowledged for record. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 43 pars, annotation. 56 C. 242, 248 (applied); (dis. op.), 58 C. 63, 73 (applltMl); 86 C. 591, 592, 25 P. 54 (cited); 97 C. 647, 657, 32 P. 702 (applied); 128 C. 285, 291, 60 P. 855 (applied). As to ejectment, see Kerr's Cyc. C. C. P. §§ 738 et seq. As to notice generally, see Kerr's Cyc. C. C. P. § 19 and parS. 93 et seq. As to waiver generally, see Kerr's Cyc. C. C. P. § 1440 and note. Conditions subsequent. — Generally, — as to, see Kerr's Cyc. C C. P. § 1438 and note. Excuse for non-performance, — as to, see Kerr's Cyc. C. C. P. §§ 1440, 1441 and note. Impossible conditions, generally, — as to, see Kerr's C> P. § 1441 and note. Interpretation of condition involving forfeiture, — as to, sec Kerr's Cyc. C. C. P. § 1442 and note. Performance — When essential, — as to, see Kerr's Cyc. C. C. P. § 1439 and note. Unlawful conditions subsequent, — as to, see Kerr's Cyc. C. C. P. § 1441 and note. § 1110. GRANTS ON CONDITION, WHEN AHSOLUTE. An instrument puri)orting to be a grant of real property, to take effect upon condition precedent, passes the estate upon the performance of the condition. HlMtory: Enacted March 21. 1S72: aimndcd Mar. Code Anidts. 1873-4, p. 225. See Kerr's Cyc. C. C. for 14 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — It does not embrace what). Condition precedent — Generally. — as to, see Kerr's Cyc. C. C. § 1436 and note. Excuse for non-iierformance, — as to, see Kerr's Cyc. C. C. § 1440 and note. Performance — When essential. — See Kerr's Cyc. C. C. i 14^9 and note. 611 §§ 1111-1113 CIVIL CODE. [Div.II,Pt.IV. § 1111. GRANT OF RENTS, REVERSIONS, AND REMAIN- DERS. Grants of rents or of reversions or of remainders are good and effectual without attornments of the tenants; but no tenant who, before notice of the grant, shall have paid rent to the grantor, must suffer any damage therebj'. History: Enacted March 21, 1872; founded upon § 6, Act 1855, Stats. 1855, p. 171. See Kerr's Cyc. C. C. for 19 pars, annotation. 79 C. 442, 443, 21 P. 861, 862 (construed and applied); 82 C. 621, 626, 627, 628, 23 P. 193, 195 (construed and applied);' 97 C. 292, 294, 33 A. S. 187, 32 P. 246 (construed and applied); 150 C. 650, 655, 89 P. 600 (applied); 5 C. A. 475, 481, 90 P. 962, 965 (this section is for protection of tenant). As to constructive notice by record of instrument, see Kerr's Cyc. C. C. § 1213 and note. §1112. BOUNDARY BY HIGHWAY, WHAT PASSES. A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front of the center thereof, unless a different intent appears from the grant. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 225. See Kerr's Cyc. C. C. for 25 pars, annotation. 69 C. 202, 206, 10 P. 510, 513 (applied); 70 C. 534, 540, 12 P. 530, 533 (applied); 95 C. 661, 665, 30 P. 793 (applied); 104 C. 186, 188, 43 A. S. 89, 37 P. 786, 25 L. 654 (applied); 131 C. 96, 99, 63 P. 143 (applied). Bounding land on street or alley as covenant that the street or alley exists, where grantor does not in fact own the fee thereof. — See 10 L. 964. "Conveyance" along highway, what passes. — See 4 L. 624. Interpretation of description — Generally, — as to, see Kerr's Cyc. C. C. § 2077 and note. Meander line as boundary. — See 63 L. 157. Waters as boundaries. — See Kerr's Cyc. C. C. § 830 and note. §1113. IMPLIED COVENANTS. From the use of the word "grant" in any conveyance by which an estate of inher- itance or fee simple is to be passed, the following covenants, 612 Tit.IV,ch.II,art.II.] COVENANTS. §1113 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 express terms contained in such convey- ance: 1. That previous to the time of the execution of such con- veyance, 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 execution of such conveyance free from encumbrances done, made, or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance. History: Enacted March 21, 1872, founded upon § 9. Act isfif., Stats. 1855, p. 171. See Kerr's Cyc. C. C. for 21 pars, annotation. 56 C. 616, 619 (applied): 74 C. 266, 267, 268. 5 A. S. 440, 15 P. 831, 832 (applied); 109 C. 417, 424, 42 P. 139 (cited); 113 C. 345, 352, 45 P. 680 (construed and applied): 119 C. 283. 294, 63 A. S. 108. 51 P. 2. 51 P. 542 (construed and applied); 131 C. 109. Ill, 82 A. S. 335, 63 P. 179 (applied); 133 C. 436. 458. 65 P. 968 (construed and applied); 134 C. 417, 418. 66 P. 472 (con- strued and applied); 138 C. 618. 624. 72 P. 173 (no considera- tion for implied covenant in deed of gift, when); 6 C. A. 646. 648, 92 P. 875. 876 (lease is encumbrance, and is within cove- nants implied from use of word "grant" in conveyance of estate in fee simple); 7 C. A. 515. 516. 94 P. 856 (use of word "grant" in deed of gift does not imply covenant against encum- brance of mortgage when). Apportionment of covenants, as to. — Sit- Kerr's Cyc. C. C. § 1467 and note. "Grant", as effectual to convey estate in incorporeal hored- iments. — See Kerr's Cyc. C. C. § 1053 and note. Implied covenant — Defined. — See 9 A. D. 157; IS T.. 34.'?: 4 W. & P. 3431. Same — For title other than statutory. — See 32 A. D. 353. Same — In lease as to fitness of property for the purpose intended. — See 33 L. 449. Recitals in deed as basis of implied covenants of title. — See 18 L. 343. 613 §§1114,1115 CIVIL CODE. [Div.II,Pt.IV. §1114. WHAT THE TERM "ENCUMBRANCES" EM- BRACES. The term "encumbrances" includes taxes, assess- ments, and all liens upon real property. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 226. See Kerr's Cyc. C. C. for 7 pars, annotation. 106 C. 441, 446 (erroneously cited for § 1141), 39 P. 853, 855 (correct citation); 149 C. 316, 320, 86 P. 706 (construed with other sections — deed of trust is not an encumbrance). As to eviction under covenant, see note 6 L. 107. §1115. LINEAL AND COLLATERAL WARRANTIES ABOLISHED. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who has made any covenant or agreement in refer- ence to the title of, in, or to any real property, are answer- able 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. History: Enacted March 21, 1872, founded upon § 8, Act 1855, Stats. 1855, p. 171. 614 I Tit.IV,ch.III,art.I.] TRANSFER by SALE. §§1135,1136 CHAPTER III. TRANSFER OF PERSONAL. PROPERTY. Article L Mode of Transfer. §§1135, 1136. II. What Operates as a Transfer, §§ 1140-1142. IIL Gifts, §§ 1146-11.53. ARTICLE I. MODE OF TRANSFER. I 1135. When must be in writing. § 1136. Transfer by sale, etc. § 1135. >VHEN MUST BE IN TTRITIXG. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what). As to mortgage of vessel at sea. see Kerr's Cyc. C. C. { 1135 note par. 9. As to sale of vessel at sea, see Kerr's Cyc. C. C. i 1135, note par. 12. Transfer of obligations, — as to, see Kerr's Cyc. C. C. §$ 1457 et seq. Transfer of personal property by sale — Generally, — as to. see Kerr's Cyc. C. C. §§ 1721 et seq. Same — Delivery, — as to, see Kerr's Cyc. C. C. H 1753 et seq. Same — Auction, — as to, see Kerr's Cyc. C. C. S§ 1792 et seq. § 1136. TRANSFER BY S.\LE, ETC. The mode of trans- ferring other personal property by sale is regulated by ihe title on that subject, in division third of this code. History: Enacted March 21. 1872. As to sale of property — Generally, see Kerr's C\ r <". C. §S 1721 et seq.. and notes. As to transfer of obligations, see Kerr's Cyc. C. C. 5J1457 et seq., and notes. 615 §§1140,1141 CIVIL CODE. [Div.II.Pt.IV. 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. TRAJrSFER OF TITLE UNDER SALE. The title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 49 pars, annotation. 76 C. 212, 218, 9 A. S. 199, 18 P. 248, 251 (construed and applied); 86 C. 459, 463, 25 P. 12, 13 (applied); 107 C. 348, 357, 40 P. 530, 534 (applied); 145 C. 514, 523, 78 P. 1040 (delivery simultaneously with payment is necessarily essence of transfer) ; 147 C. 313, 322, 81 P. 964 (applied — title vests regardless of delivery); 3 C. A. 519, 524, 86 P. 615 (applied — title to prop- erty sold is in buyer). As to delivery generally, including when necessary and what is sufficient, see Kerr's Cyc. C. C. §§ 1753 et seq. and notes. As to assignment for creditors generally, see Kerr's Cyc. C. C. §§ 3449 et seq. As to specific performance, see 26 A. D. 661-671. Conditional sales. — See Kerr's Cyc. C. C. § 1721 and note. Constructive delivery of bulky articles, — as to, see Kerr's Cyc. C. C. § 1140, note pars. 43-46; 75 A. D. 443. Putting in condition for. — See Kerr's Cyc. C. C. § 1141 and note. § 1141. TRANSFER OF TITLE UNDER EXECUTORY AGREEMENT FOR SALE. Title is transferred by an execu- tory agreement for the sale or exchange of personal prop- erty only when the buyer has accepted the thing, or when the seller has completed it, prepared 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. Hi-story: Enacted March 21, 1872. 616 Tit.IV,ch.III,art.II.] BUYER'S TITLE. §1142 See Kerr's Cyc. C. C. for 14 pars, annotation. 63 C. 575, 576 (applied); 77 C. 139, 144, 12 A. S. 63, 19 P. 260. 261 (applied); 93 C. 532, 534, 29 P. 225, 226 (referred to); 106 C. 441, 446 (erroneously cited as § 1114), 39 P. 853, 855 (correct citation); 146 C. 50, 55, 79 P. 592 (applied to sale of oranj?es on trees); 3 C. A. 519, 524, 86 P. 615 (applied — title to property sold is in buyer. Offer to perform, — as to, see Kerr's Cyc. C. C. § 1485 and note. § 1142. WHEN BUYER ACQUIRES BETTER TITLE THAN SELLER HAS. Where the possession of personal property, together with a power to dispose thereof, is transferred bj- its owner to another person, an executed sale by the latter, while in possession, to a buyer in good faith and in the ordinj^ry 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 123 C. 625, 632, 56 P. 776 (applied to sale of goods in ware- house — the "possession" mentioned does not necessarily nuan actual, exclusive, manual possession — the right of possos.sion may be transferred though property is in hands of hallee, subject to latter's lien). As to factor's power to pledge, see 22 Encyc. L. 848, note ."i: also 36 A. D. 716; 58 A. D. 164; 59 A. D. 297; 70 A. D. 797; 92 A. D. 537; 95 A. D. 406; 97 A. D. 374; 42 A. S. 48. Agent with power to ship, sell, and receive payment from purchaser, has no power to affect property consigned to him for those purposes by tortiously soiling it. or mortgaging or pledging it as satisfaction or security for his own debt. The utmost that he could do, in that respect, would be to mortgage or pledge it to extent of any lien whicli he might have upon it.— 19 C. 64, 76, 79 A. D. 196; 55 C. 421. 424, 36 A. R. 43; 56 C. 477. See 9 L. 270; bk. 13 L. ed. 667; bk. 30 L. ed. 573. 23 Fed. Cas. 853. 617 § 1146 CIVIL CODE. [Div.II.PtlV. ARTICLE III. GIFTS. § 1146. Gifts defined. § 1147. Gifts, how made. § 1148. Gift not revocable. § 1149. Gift in view of death, what. § 1150. When 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. GIFTS DEFINED. A gift is a transfer of personal propertj', made voluntarily, and without consideration. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 27 pars, annotation. 83 C. 264, 265, 23 P. 369 (construed and applied);. 99 C. 17, 21, 37 A. S. 17, 33 P. 753, 754, 21 L. 474 (applied in construction^ of gifts prohibited by constitution); 121 C. 674, 678, 54 P." 267 (construed and applied in connection with other sections); 126 C. 531, 534, 59 P. 30 (construed and applied); 131 C. 64, 66, 67, 63 P. 133 (applied); 134 C. 603, 605, 65 P. 321, 66 P. 860 (applied in connection with other sections); 138 C. 169, 170, 94 A. S. 19, 71 P. 83 (construed and applied in connection with other sections); 143 C. 528, 536, 77 P. 471 (construed and applied in connection with other sections); 144 C. 289, 294, 296, 77 P. 945 (construed — gift by decedent of debt due him is not valid when); 146 C. 225, 230, 79 P. 883, 2 A. C. 1001 (gift of shares of stock, when invalid for want of delivery during lifetime of deceased giver); 153 C. 174, 176, 94 P. 766 (what is essential to validity of verbal gift); 3 C. A. 115, 120, 84 P. 435 (impossibility of gift under circumstances — inadmissible evidence); 3 C. A. 213, 217, 84 P. 841 (what gift passes title to money and is not revocable); 3 C. A. 501, 502, 86 P. 617 (doctrine of donatio causa mortis applies only to personal property); 6 C. A. 144, 146, 91 P. 658 (construed with other sections — valid gift of savings-bank pass-book). GIFTS — GENERALLY. Acceptance necessary to completion. — See 92 A. S. 321; 4 W. & P. 3084. Between husband and wife, validity of.— See 2 L. 716; 5 L,. 579; 21 L. 623; 69 L. 355. 618 Tit.IV,ch.III,art.III.] GIFTS, GENERALLY. § ^q By assignment of a fund or by check on bank. — St-e "6 A R 684. By husband, whether fraudulent as against wife See M A. S. 490. By implication. — See 1 L. 551; 11 L. 6S4. By promissory note. — See 26 L. 305. Bj' wife to husband, when inferable by use by him of the income of real property. — See 58 A. R. 261. Causa mortis — As to generally, see Kerr's Cyc. C. C. § 1149 and note; 10 A. C. 473; 10 A. C. 1051; 99 A. S. 890; 3 L. 230; 7 L. 439; 11 L. 684; 4 W. & P. 3087-3091. Same — As a conditional gift. — 35 A. S. 17; 4 W. & P. 3088. Same — By promissory note. — See 26 L. 305. Same — Constructive delivery, sufficiency of to sustain. — See 18 L. 170. Same — Death by existing disorder. — See 4 "W. & P. 3089. Same — Delivered to third person constitutes a, when. — See 2 A. C. 1003. Same — Delivery of property to third preson held insufficient as a. — See 2 A. C. 1001. Same — Delivery sufficient to support. — See 23 A. D. 597; 50 .\. R. 178; 74 A. S. 442; 27 L. ed. 500; 4 W. & P. 3089. Same — Expectation of death necessary to valid. — See 74 A. S. 442; 4 W. & P. 3090. Same — Intention to make. — See 54 A. R. 819; 4 W. & P. 3090. Same — Gift inter vivos distinguished. — See 27 L. 507: 4 W. & P. 3090. Same — Gift of check as a valid. — See 10 A. C. 475. Same — Legacy distinguished. — See 56 A. R. 543; 27 L. ed. 500; 4 W. & P. 3091. Same — Necessity of delivering, to validity of. — See 2 A. C. 1001. Same — Of money deposited in .savings bank. — See 26 A. R. 684; 48 A. R. 506. Same — Of notes and choses in action payable to ord--- ■-' -^ 23 A. D. 600; 25 A. D. 389. Same — Requisites of. — See 6 L. 367. Same — Revocation of. — See Kerr's Cyc. C. C. 5 1151 and note. Same — What is. — See 11 L. 684. Character of presumption as to undue influence in gift to mistress. — See 11 L. N. S. 554. Conveyance which must be regarded as. — See 65 A. S. 79S. Definition of. — See 6 L. 403; 4 W. & P. 3084. Degree of proof necessary to establish parol gift of real estate. — See 9 L. N. S. 508. Delivery necessary to validity of. — See 9 A. S. 83; 15 A. S. 531; 17 A. S. 638; 92 A. S. 231; 93 A. S. 827; 1 L. 535; 6 L. 403; 11 L. 684; 18 L. 170; 56 L. 596; 4 W. & P. 3085. Delivery sufficient to support. — See 50 A. R, 178, 619 § 1146 CIVIL CODE. [Div.II.Pt.IV. Deposit in bank for otlier person as a. — See 1 L. N. S. 790. Deposit in bank, when amounts to. — See 23 A. R. 451. Deposit in joint name as gift to co-depositor. — See 12 L. N. S. 355. Disting-uislied from advancement. — See 12 L. 567. Effect of mere agreement to make. — See 11 L. 685. Effect of mere intention to make. — See 11 L. 685. Effect of receipt of gratuity to mitigate damages for personal injury. — See 67 L. 90. Forfeiture of. — See 13 L. 698. Fraud and undue influence — As to generally, see Kerr's Cyc. C. C. §§ 1709, 1710 and notes. Gift of or by deposit, as to generally. — See 1 L. 536; 5 L. 72; 5 L. 405; 6 L. 405; 11 L. 685. Gift to wife before and in consideration of marriage — Mis- conduct of as affecting. — See 6 L. N. S. 785. Intent to make a gift necessary to validity. — See 94 A. S. 19; 1 L. 535; 4 W. & P. 3087. Inter vivos — As to generally, see 3 A. C. 863; 4 A. C. 529; 6 A. C. 430. Same — By promissory note. — See 26 L. 305. Same — Complete execution by deposit of money in bank to credit of another. — See 3 A. C. 865. Same — Revocability of completed, by parent to child. — See 6 A. C. 432. Same — What constitutes. — See 6 L. 515. Kinds of. — See 4 W. & P. 3084. No particular formula or set phrase is necessary. — See 73 C. 614; 15 P. 354, 355. Of check, as to generally. — See 18 L. 855. Of choses in action. — See 11 L. 686. Of corporate stocks, necessity of writing. — See 2 L. N. S. 806. Of deposit of money in the bank in the name of another. — See 39 A. R. 310. Of husband's personal property in fraud of wife. — See 3 L. N. S. 774. Of real property — As basis of adverse possession. — See 35 L. 835. Same — By parol. — See 67 L. 461. Same — -Right in respect to compensation for improvements on land, made in good faith, under a parol contract or gift. — See 53 L. 337. Same — Specific performance of parol. — See 5 L. 327. Parol gift of land — Degree of proof necessary to establish. — See 9 L. N. S. 508. Power of municipality to donate property for worthy purpose. — See 11 L. 124. Povi^er to sell as authorizing gift. — See 3 L. 754. 620 TitlV.ch.III.art.III.] HOW MADE. §§1147,1148 Right of married woman to make gift of personal property without consent of liusband. — See 3 L. N. S. 769. Revocability of. — See 11 L. 687; 2 L. N. S. 28.'.. Specific performance of. — See 23 A. D. 429. Subsequent lunacy of donor as affecting, incoinpi. t.-. — S.-e 34 L. 297. To a class, who entitled to take. — See 73 A. S. 413. What necessary to complete. — See 5 L. 71; 6 L. 367. § 1147. GIFT, HOAV MADE. 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. Hititory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 81 pars, annotation. 106 C. 651, 657, 40 P. 8 (applied); 113 C. 490, 497. 45 P. 867 (construed and applied); 121 C. 426, 429, 53 P. 931 (construed and applied); 121 C. 674, 679, 681, 54 P. 267 (construed and applied in connection with other sections); 131 C. 64, 66, 63 P. 133 (referred to); 138 C. 169, 170, 14 A. S. 19, 71 P. 83 (construed and applied); 143 C. 528, 532, 534, 77 P. 471 (construed and applied i; 144 C. 289, 296, 77 P. 945 (construed — gift by decedent of debt due him is not valid when); 153 C. 174. 176, 94 P. 766, 767 (what is essential to validity of verbal gift); 3 C. A. 115, 120. 84 F. 435, 437 (impossibility of gift under circumstances — Inadmis- sible evidence); 3 C. A. 213, 217. 84 P. 841 (what gift pas.'^o.i title to money and is not revocable). As to gifts generally, see note § 1146, ante. Execution of deed by mark — As to, see Kerr's Cyc. C. C. | 14 note pars. 19, 20, 56-64. Gift causa mortis. — See Kerr's Cyc. C. C. I 1149 and note, also note § 1146. ante. Gift — Generally. — See Kerr's Cyc. C. C. 8 1146 and note, also note § 1146, ante. Law applies to shares of national bank. — See 46 A. D. 332; 76 A. D. 445. Revocation of gift rausn m.^rtis. — ;i« t... «.••> K'rr« r-v.- n c. § 1151 and note. § 114S. GIFT NOT REVO( VULE. A gift, other than a gift in view of death, cannot be revoked by the giver. History: Enacted March 21. 1S72. See Kerr's Cyc. C. C. for 4 pars, annotation. 3 C. A. 213. 217. 84 P. 841 (what gift passes title to money and is not revocable). 621 §§ 1149-1151 CIVIL CODE. [Div.II,Pt.IV. As to many miscellaneous matters as to gifts, see note § 1146, ante. Fraudulent conveyances — Gift as. — See Kerr's Cyc. C. C. §§ 3439 et seq. and notes. Revocation of gift causa mortis — As to, see Kerr's Cyc. C. C. § 1151 and note. § 1140. GIFT IN VIEW OF DEATH, WHAT. 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. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 396, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 16 pars, annotation. 105 C. 143, 147, 38 P. 640 (construed and applied); 3 C. A. 501, 502, 86 P. 617 (doctrine of donatio causa mortis applies only to personal property). As to many miscellaneous matters as to gifts, see note § 1146, ante. § 1150. WHEN GIFT PRESUMED TO BE IN VIEW OF DEATH. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, anotation. 121 C. 674, 677, 54 P. 267 (construed and applied). As to many miscellaneous matters as to gifts, see note § 1146, ante. §1151. REVOCATION OF GIFT IN VIEW OF DEATH. A gift in view of death may be revoked by the giver at any time, and is revoked by his recovery from the illness, or escape from the 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 622 ! Tit.IV,ch.III,art.III.] WILI^-legacy. §§ ^-^gg, 1153 fide purchaser from the donee before the revocation, shall not be affected by the revocation. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 226. See Kerr's Cyc. C. C. for 9 pars, annotation. 99 C. 311, 315, 33 P. 929, 930 (applied); 132 C. 164, 166, 64 P. 283 (construed and applied). As to many miscellaneous matters as to gifts, see note § 1146, ante. § 1152. EFFECT OF WILL UPON GIFT. A gift in view of death is not affected by a previous will; nor by a subse- quent will, unless it expresses an intention to revoke the gift. History: Enacted March 21, 1872. 132 C. 164, 166, 64 P. 283 (cited). As to many miscellaneous matters as to gifts, see note § 1146, ante. § 1153. WHEN TREATED AS LEGACY. A gift in view of death must be treated as a legacy, so far as relates only to the creditors of the giver. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to gifts, see note § 1146, ante. 623 §§ 1158, 1159 CIVIL CODE. [Div.II.Pt.IV. CHAPTER IV. RECORDING TRANSFERS. Article I. What May Be Recorded, §§ 1158-1165. II. Mode of Recording, §§ 1169-1173. III. Proof and^ Acknowledgments of Instruments, §§ 1180- 1207. IV. Effect of Recording, or of the Want Thereof, §§ 1213- 1218. ARTICLE I. WHAT MAY BE RECORDED. § 1158. What may be recorded. § 1159. Judgments may be recorded without acknowledgment. [Location of mining claim.] § 1160. Letters patent may be recorded without acknowledg- ment. § 1161. Instruments must be acknowledged, except, etc. § 1162. Same. [Certified instruments recorded, when.] § 1163. Certificate of residence filed witli recorder showing where service of summons may be made. § 1164. Transfers in trust, etc. § 1165. Recorder's fees to be indorsed. § 1158. WHAT MAY BE RECORDED. Any instrument or judgment affecting the title to or possession of real property may be recorded under this chapter. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. 55 C. 564, 565, 566 (meaning of "instrument" — it does not embrace what); 67 C. 57, 58, 7 P. 47 (construed and applied); 76 C. 136, 140, 9 A. S. 177, 18 P. 146, 148 (applied); 108 C. 250, 256, 49 A. S. 84, 39 P. 783, 41 P. 472 (cited and applied); 108 C. 546, 549, 41 P. 450 (applied); 146 C. 3, 8, 79 P. 527 (cited). Enumeration of "instruments" and "conveyances." — See Kerr's Cyc. C. C. § 1215 and note. §1159. JUDGMENTS MAT BE RECORDED WITHOUT ACKNOWLEDGMENT. [LOCATION OF MINING CLAIM.] Judgments affecting the title to or possession of real property, 624 Tit.IV,cli.IV,art.I.] letters patent. §1160 authenticated by the certificate of the clerk of the court in which such judgments were rendered (and notices of location of mining claims), may be recorded without acknowledgment, certificate of acknowledgment, or further proof. [Work upon niiuiiig- claims.] The record of all notices of location of mining claims heretofore made in the proper office without acknowledgment, or certificate of acknowledg- ment, 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. Affidavits show- ing work or posting of notices upon mining claims may also be recorded in the recorder's office of the county where such mining claims are situated. History: Enacted March 21, 1872; amended March 9, 1897, Stats, and Amdts. 1897, pp. 97, 98. In effect March 9, 1897. See Kerr's Cyc. C. C. for 3 pars, artnotation. 129 C. 361, 362, 363, 61 P. 1124 (applied); 5 C. A. 175, 183, 89 P. 1001, 1004 (copy of notice of appropriation of water, though not in the excepted classes, may be recorded without acknowledg- ment). § 1160. LETTEKS PATENT MAY BE RECORDED WITH- OUT ACKNOWLEDGMENT. Letters patent from the United States, or from the state of California, executed and authenti- cated pursuant to existing law, may be recorded without acknowledgment or further proof, and where letters patent have been lost, or' are beyond the control of any party deraign- ing title therefrom, or for any reason they remain unrecorded, any person claiming title thereunder may cause a transcript of the copy of such letters patent 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 facie, the same force and effect as the original, for title or for evidence, until said original letters patent be recorded. History: Enacted March 21, 1872; amended April 1, 1878, Code Amdts. 1877-8, p. 86. 625 §§1161,1162 CIVIL CODE. [Div.II,Pt.IV. See Kerr's Cyc. C. C. for 2 pars, annotation. 84 C. 567, 569, 24 P. 106, 107 (construed as not applicable); 5 C. A. 175, 183, 89 P. 1001, 1004 (copy of notice of apropriation of water, though not in the excepted classes, may be recorded with- out acknowledgment); 5 C. A. 485, 489, 90 P. 965, 967 (applied to copj' of United States patent). §1161. IIVSTEUMENTS MUST BE ACKNOWLEDGED, EXCEPT, ETC. Before an instrument can be recorded, unless it belongs to the class provided for in either section eleven hundred and fifty-nine, eleven hundred and sixty, twelve hun- dred and two, or twelve hundred and three, its execution must be acknowledged by the person executing it, or if executed by a corporation, by its president or secretary, or other per- son executing the same on behalf of the corporation, or proved by a subscribing witness, or as provided in sections eleven hundred and ninety-eight and eleven hundred and ninety-nine, and the acknowledgment or proof certified in the manner prescribed by article three of this chapter. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 226; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 396, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 602. See Kerr's Cyc. C. C. for 6 pars, annotation. 55 C. 564, 565 (meaning- of "instrument" — it does not embrace what); 56 C. 128, 129 (cited); 74 C. 425, 429, 16 P. 231, 232 (referred to); 90 C. 444, 477, 27 P. 356, 366 (cited); 5 C. A. 175, 183, 89 P. 1001, 1004 (copy of notice of appropriation of water, though not in the excepted classes, may be recorded without acknowledgment); 83 F. 48, 56 (instrument creating trusts in lands, though unacknowledged, may be recorded, upon proof of its execution). § 1162. SAME. [CERTIFIED INSTRUMENTS RECORDED, WHEN.] An instrument proved and certified pursuant to sec- tions eleven hundred and ninety-eight and eleven hundred and ninety-nine may be recorded in the proper office if the origi- nal is at the same time deposited therein to remain for public inspection, but not otherwise. History: Enacted March 21, 1872. 626 Tit.IV,ch.IV,art.I.] RESIDENCE. §§1163. 11«;4 55 C. 564, 565 (meaning' of "instrumont" — it does not embrace what). § 1163. CERTIFICATE OF RESIDENCE FILED WITH RECORDER SHOWIXG WHERE SERVICE OF SIMMONS MAY BE MADE. Any person, firm, or corporation, may- record in the office of the county recorder of any county in the state of California a certificate setting forth the name of said person, firm, or corporation, and the place of residence of said person, firm, or corporation, and the place where service of summons may be made upon said person, firm, or corporation. The said certificate must be verified by the oath of the person, or of a member of the firm, or officer of the corporation making the same, and may be recorded without acknowledgment. Such person, firm or corporation may upon a change of place of residence file affidavit as herein provided and such last affidavit filed shall be the place designated as the place where service of summons may be made as herein provided. Tlie fee of the recorder for reeordini; said eertltioale shall be fifty cents; and the recorder shall keep in his office an index entitled "Index to Certificates of Residence," in which must be entered the name of the person, firm, or corporation in whose behalf said certificate was filed. Hlwtory; Original .section, providing that instruments executed under power of attorney sliould not be recorded until the power of attorney was filed, was repealed March 30, 1873-4. p. 226. The above section is a new provision added, under old section number, March 18, 1905, Stats, and Amdts. 1905. pp. 139. 140. § 1164. TRANSFER IN TRUST, ETC. Transfers of prop- erty in trust for the benefit of creditors, and transfers or liens on property by way of mortgage, are required to be recorded in the cases specified in the titles on the special relation of debtor and creditor, and the chapter on mortgages, respect- ively. History: Enacted March 21, 1S72. 627 §§ 1165-1170 CIVIL CODE. [Div.II.PtlV. See Kerr's Cyc. C. C. for 2 pars, annotation. 108 C. 250, 256, 49 A. S. 84, 39 P. 783, 41 P. 472 (construed). Assignments for benefit of creditors, — as to, see Kerr's Cyc. C. C. §§ 3449 et seq. and note. Debtor and creditor— Special relation of. — See Kerr's Cyc. C. C. §§ 3429 et seq. and notes. Fraudulent instruments and transfers.- — See Kerr's Cyc. C. C. §§ 3439 et seq. and notes. Mortg-ag-es,- — as to, see Kerr's Cyc. C. C. §§ 2920 et seq. and notes. § 1165. RECORDER'S FEES TO BE INDORSED. The recorder must, in all cases, indorse the amount of his fee for recordation on the instrument recorded. History: Enacted March 11, 1874, Code Amdts. 1873-4, p. 275. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what). 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. IN WHAT OFFICE. Instruments entitled to be recorded must be recorded by the county recorder of the county in which the real property affected thereby is situated. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 103 C. 108, 110, 111, 37 P. 188 (applied). § 1170. INSTRUMENT, WHEN DEEMED RECORDED. An instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the recorder's office, with the proper officer, for record. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4. p. 227. 628 Tit.IV,ch.IV,art.II.] RECORDS. §§1171-1173 See Kerr's Cyc. C. C. for 20 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what): 57 C. 399, 401, 402 (applied); 67 C. 57, 58, 7 P. 47 (con- strued and applied); 90 C. 444, 447, 27 P. 356, 366 (cited); 93 C. 395, 399, 29 P. 58 (applied); 35 P. 646, 647 (construed and applied); 102 C. 493, 498, 37 P. 755 (cited); 104 C. 395, 400, 38 P. 53 (construed and applied); 121 C. 254, 256, 53 P. 796 (con- strued and applied); 131 C. 552, 555, 556, 557, 558, 82 A. S. 391. 63 P. 844 (construed and applied with other sections). Indorsement of fees by recorder. — See post § 1165. § 1171. KOOKS OF RECORD. Grants, absolute in terms, are to be recorded in one set of books, and mortgages in another. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 131 C. 552, 558, 82 A. S. 391, 63 P. 844 (cited) 146 C. 3, 10. 79 P. 527 (what instrument must not be recorded aniongr mort- gages). § 1172. DUTIES OF RECORDER. The duties of comvy recorders, in respect to recording instruments, are prescribed by the Political Code. History: Enacted March 21, 1872. 55 C. 564, 565 (meaning of "instrument" — it does not em- brace what). Duties of recorder — Generally. — See Kerr's Cyc. Pol. C. SS 4235 et seq. and notes. § 1173. TR.V>'SFER OF VESSELS. The mode of record- ing transfers of ships registered under the laws of the I'nited States is regulated by acts of Congress. History: Enacted March 21, 1872. Recording transfer of vessels. — See U. S. Rev. Stats. $§4131 et seq., 5 F. S. A. 395. 629 § 1180 CIVIL CODE. [Div.II.Pt.IV. ARTICLE III. PROOF AND ACKNOWLEDGMENT OF INSTRUMENTS. § 1180. By whom acknowledgments may be taken in this state. § 1181. ^ame. § 1182. By whom taken without the state. § 1183. By whom taken without the United States. § 1184. Deputy can take acknowledgment. § 1185. Requisites for acknowledgements. § 1186. Acknowledgment by married women [repealed]. § 1187. Conveyance by married woman. Acknowledgment. § 1188. [Same.] Certificate. § 1189. General form of certificate. [Outside of state.] § 1190. Form of acknowledgment by corporation. § 1191. Form of certificate of acknowledgment by married women [repealed]. § 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 of handwriting must prove, what. § 1200. Certificate of proof. § 1201. Officers authorized to do certain things. § 1202. Instrument improperly certified, how corrected. § 1203. Judgment proving 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. Validating defectively executed instruments. Record imparts notice. Certified copies. § 1180. BY WHOM ACKNOWLEDGEMENTS MAT BE TAKEN IN THIS STATE. The proof or acknowledgment of an instrument may be made at any place within this state before a justice or clerk of the supreme court, or judge of a superior court. 630 Tit.IV.ch.IV.art.III.] ACKNOWLEDGEMENT. § HgQ Hlstorj-: Enacted March 21, 1872; amender ni.rr- gagor. — See 2 A. C. 990. Same — Impeachment of, generally, see 7 A. C. 245. Same — Same — Evidence requisite to. — See 7 A. C. 249. Same — Necessity that certificate should state that it wa.s taken within officer's jurisdiction. — See 10 A. C. 129. Same — Requisites, generally, see 5 A. C. 459, 10 A. C. 128. Conclusiveness of certificate of. — See 1 A. D. 81; 54 A. S. 150. "Conveyance" — As to instruments included in, see Kerr's Cyc. C. C. P. § 1215 and note. Disqualification of officer taking, effect of. — See 32 A. D. 757: 58 A. S. 707. Effect of grammatical defects in certificate of. — See 11 I- N. S. 643. Informality, how cured. — See 10 L. 857. Instruments included in the term "conveyance." — See Kerr's Cyc. C. C. § 1215 and note. Interest of officer in transaction disqualifies liim from tak- ing.— See 56 A. S. 798; 33 L. 332. Leaving blank for name of party in certificate of acknowl- edgment, effect of. — See 19 L. 279. Of deeds, certificate defective, when fatal and when not. — See 108 A. S. 525. Omission in, does not invalidate. — See 10 L. S57. Power of con.sul to take aiknowledgment. — See 45 L. 4;>y. Power of deputy taking acknowlcdgnunt. — See 2 A. C. 299. Presumption as to official character of justice of the peace. — See 10 L. 857. Right of interested person to take acknowledgment. — See 56 A. S. 798; 33 L. 332. Substantial compliance with statute sufficient. — See 10 L. S57. Sufficiency of evidence to impeach certificate of. of deod.— See 6 L. N. S. 442. 631 § 1181, 1182 CIVIL CODE. [Div.II,Pt.IV. Validity of acknowledgment — Of deed of trust taken by trus- tee.— See 16 L. 719. Same — Taken by officer whose right to office has ceased. — See 5 A. C. 461. When fatally defective and when not. — See 41 A. D. 168; 108 A. S. 525. § 1181. SAME. The proof or acknowledgment of an instru- ment may be made in this state, within the city, county, city and county, or township for which the officer was elected or appointed, before either: 1. A clerk of a court of record; 2. A county recorder; 3. A court commissioner; 4. A notary public; 5. A justice of the peace. History: Enacted March 21, 1872; amended April 3, 1880, Code Am.dts. 1880 (C. C. pt.), p. 2; March 31, 1891, Stats, and Amdts. 1891, p. 214; by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 396, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 603. See Kerr's Cyc. C. C. for 15 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what); 64 C. 267, 268, 269, 30 P. 816, 817 (construed and ap- plied); 90 C. 444, 448, 27 P. 356, 367 (applied); 90 C. 444, 478, 27 P. 356 (cited); 104 C. 680, 682, 683, 38 P. 516 (construed); 130 C. 442, 447, 62 P. 739 (cited). As to many miscellaneous matters as to acknowledgment of instruments, see note § 1180, ante. Presumption of identity of persons from identity of name. — See, generally, Kerr's Cyc. C. C. P. § 1963 subd. 25 and note. § 1182. BY WHOM TAKEN WITHOUT THE STATE. The proof or acknowledgment of an instrument may be made without this state, but within the United States, and with the jurisdiction 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 record of any state ; or, 632 Tit.IV,ch.IV,art.III.] BY WHOM taken. §§1183,1181 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 acknowledg- ment is made authorized by its laws to take such proof or acknowledgment. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 4 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what). As to many miscellaneous matters as to acknowledgment of instruments, see note § 1180, ante. §1183. BY WHOM TAKEX WITHOUT THE IMTEI) STATES. The proof or acknowledgment of an 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 acknowl- edgment is made; or, 3. A judge of a court of record of the country whore the proof or acknowledgment is made; or, 4. Commissioners appointed for such purposes by the gov- ernor of the state, pursuant to special statutes; or, 5. A notary public. History! Enacted March 21. 1872: am.iid.-d March 30. 1S74. Code Amdts. 1873-4, p. 227. See Kerr's Cyc. C. C. for 3 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — It does not embrace what); 110 C. 243, 245, 42 P. 810 (referred to); 83 F. 48. 56 (instrument creating trust in lands, though unacknowledged, may be recorded upon proof of its execution). As to many miscellaneous matters as to tlie arkno\vl.>djr- ment of instruments, see note § 1180, ante. § 1184. DEPUTY CAN TAKE ACK>OWLED(iMENT. When any of the officers mentioned in the four preceding sections 633 §§1185,1186 CIVIL CODE. [Div.II.Pt.IV. are authorized by law to appoint a deputy, the acknowledg- ment or proof may be taken by such deputy, in the name of his principal. History: Enacted March 21, 1872. §1185. REQUISITES FOR ACKJfOWLEDGIffENT. The acknowledgment of an instrument 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 individual who is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledg- ment is the president or secretary of such corporation, or other person who executed it on its behalf. History: Enacted March 21, 1872; amended hy Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 396, held unconstitutional, see liistory, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 603. See Kerr's Cyc. C. C. for 13 pars, annotation. 55 C. 564, 565 (meaning' of "instrument" — it does not embrace what); 96 C. 649, 651, 31 P. 622 (cited); 97 C. 208, 212, 31 P. 1131, 1132 (construed and applied); 101 C. 532, 539, 40 A. S. 81, 35 P. 1054 (cited); 131 C. 504, 507, 82 A. S. 374, 63 P. 840 (con- strued and applied but erroneously cited as § 1189). As to general form of certificate, see Kerr's Cyc. C. C. § 1189 and note. As to many miscellaneous matters as to the acknowledg- ment of instruments, see note § 1180, ante. § 1186. ACKNOWLEDGMENT BY MARRIED WOMEN (repealed). History: Enacted March 21, 1872; repealed March 19, 1891, Stats, and Amdts. 1891, p. 137. See Kerr's Cyc. C. C. for 5 pars, annotation. 55 C. 52, 56 (construed); 56 C. 564, 565 (meaning of "instru- ment" — it does not embrace what); 55 C. 52, 56 (construed and applied); 59 C. 507, 513 (cited); 60 C. 358, 360 (construed and applied); 63 C. 286, 288 (applied); 65 C. 327, 330, 4 P. 106, 108 (construed and applied); 68 C. 135, 140, 58 A. R. 5, 8 P. 705; 634 Tit.IV,ch.IV,art.III.] MARRIED WOMAN. gUS; 74 C. 345, 346, 347, 348, 349, 350, 16 P. 189, 190, 191, 192 (con- strued and applied): 76 C. 527, 529, 530, 18 P. 650, 651 (con- strued and applied); 80 C. 65, 67, 22 P. 69, 70 (construed and applied); 83 C. 521, 536, 23 P. 695, 699 (applied); 91 C. 606. 607. 27 P. 934, 935 (referred to); 98 C. 143. 148. 32 P. 941, 942 (con- strued and applied); 101 C. 532, 535, 539, 40 A. S. 81. 35 P. 1054 (construed and applied); 102 C. 202, 207, 36 P. 358 (construed and applied); 113 C. 129, 139, 142, 45 P. 270, 35 L. 269 (construed and applied); 122 C. 341, 349, 68 A. S. 35, 55 P. 3 (construt-d as not applicable); 123 C. 491, 493, 494, 495, 56 P. 254 (cited). As to many miscellaneous matters as to the acknowledgment of instruments, see note § 1180, ante. Deeds by married women. — See Kerr's Cyc. C. C. § 162 and note. §1187. CONYEYANCE BY MAKKlEl) WOMAN. M- KNOWLEDGMENT. A conveyance by a married woman has the same effect as if she were unmarried, and may be acknowledged in the same manner. History: Enacted March 21, 1872; amended March 19, ISUl. Stats, and Amdts. 1891, p. 137. See Kerr's Cyc. C. C. for 18 pars, annotation. 55 C. 52, 59 (cited); 55 C. 564, 565 (cited); 59 C. 507, 513 (con- strued and applied); 60 C. 358, 360 (cited); 68 C. 13.-., 140, oS A. R. 5. 8 P. 705 (cited); 74 C. 345, 349, 16 P. 189, 191 (cited): 74 C. 432, 434, 16 P. 235 (cited): 83 C. 270. 272, 17 A. S. 248, 23 P. 318, 319 (cited); 91 C. 606, 607, 610, 27 P. 934. 935 (cited and applied); 98 C. 465, 468 (applied — erroneously cited as §1189). 35 A. S. 192, 195, same error, 33 P. 480, 481, 20 L. 702 (correct citation): 101 C. 532, 535, 40 A. S. 81. 35 P. 1054 (cited): 123 C. 491. 493, 494, 495, 497, 56 P. 254 (construed and cited). As to many miscellaneous matters as to the acknowledgment of instruments, see note § 1180, ante. As to rescission of wife's contracts and deeds, see Kerr's Cyc. C. C. §§ 158, 162 and notes. Conclusiveness of acknowledgment. — See Kerr's Cyc. C. C. § 1185 and note. Deeds by married women. — See Kerr's Cyc. C. C. § 162 and note. Powers of attorney by married women. — See Kerr's Cyc. C. C § 162 and note. Separate examination of married women under § 1186, which was repealed by Act March 19, 1891 (Stats. 1891, p. 137).— See Kerr's Cyc. C. C. § 1186 and note. 635 §§1188,1189 CIVIL CODE. [Div.II.Pt.IV. § 1188. [SAME.] CERTIFICATE. An officer taking the acknowledgment of an instrument must indorse thereon or attach thereto a certificate substantially in the forms here- inafter prescribed. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 227. See Kerr's Cyc. C. C. for 2 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what); 90 C. 444, 445, 478, 27 P. 356, 357, 367 (applied); 91 C. 606, 610, 27 P. 934, 936 (construed and applied). As to many miscellaneous matters as to the acknowledgment of instruments, see note § 1180, ante. § 1189. GENERAL FORM OF CERTIFICATE. The certifi- cate of acknowledgment, unless 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), personally appeared , known to me (or proved to me on the oath of ) to be the person whose name is subscribed to the within instru- ment, and acknowledged that he (she or they) executed the same." [Outside of state — Certificate of clerk of court.] Provided, however, that any acknowledgment taken without this state in accordance with the laws of the place where the acknowl- edgment is made, shall be sufficient in this state; and pro- vided 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 genuine 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 37; February 26, 1897, Stats, and Amdts. 636 Tit.IV,ch.IV,ait.III.] CORPORATION. 5 1190 1897, p. 43; amended by Code Commission, Act Marrli 16, 1901, Stats, and Amdts. 1900-1, p. 397, held unconstitutional, see liiH- tory, § 4 ante. See Kerr's Cyc. C. C. for 19 pars, annotation. 90 C. 444, 478, 27 P. 356, 357, 367 (applied): 98 C. 465, 468. 35 A. S. 192, 20 L. 702 (erroneously cited for § 1187), 33 P. 480, 481 (correct citation); 101 C. 532, 539, 40 A. S. 81, 35 P. 1054 (cited); 130 C. 124, 125, 62 P. 412 (cited and applied): 131 C. 504, 608. 82 A. S. 374, 63 P. 840 (erroneously cited: should he { 1185). As to many miscellaneous matters as to the ackii0>VLEI)(;MEM BV (OHlMHa- TION. The certificate of acknowledgment of an instrument executed by a corporation must be substantially in the fol- lowing form: "State of , Igg "County of I "On this day of , in the year before me (here insert the name and quality of the officer). personally appeared known to me (or proved to me on the oath of ) to be the president (or the sec- retary) of the corporation that executed the within Instru- ment (where, however, the instrument is executed in behalf of the corporation by some one other than the president or secretary) insert: known to me (or proved to nie on the oath of ) to be the i)erson who executed the within Instru- tnent on behalf of the corporation therein named, and acknowledged to me that such corporation executed the same. IIlNtory: Enacted March 21, 1S72: amond.-d by Cod.- 1'. ■■v,,^ sion. Act March 16, 1900. Stats, and Amdts. 1900-1. p. unconstitutional, sec history, § 4 ante; amfnilinciit i March 21, 1905, Stats, and Amdts. 1905, p. 603. 55 C. 564, 565 (meaning of "Instrument" — It docs not embrace what); 101 C. 532, 539, 40 A. S. 81. 35 P. 1054 (cited). As to many miscellaneous matters as to the acknowledgrment of Instruments, see note S 1180, ante. 637 §§ 1191, 1192 CIVIL CODE. [Div.II.Pt.IV. §11»1. FORM OF CERTIFICATE OF ACKNOWLEDG- MENT BY MARRIED WOMAN (repealed). History: Enacted March 21, 1872; repealed March 19, 1891, Stats, and Amdts. 1891, p. 137. See Kerr's Cyc. C. C. for 5 pars, annotation. 53 C. 456, 460 (construed); 55 C. 52, 56 (construed and ap- plied); 59 C. 507, 513 (referred to); 63 C. 286, 288 (cited) 65 C. 327, 330, 4 P. 106, 108 (construed and applied); 68 C. 135, 140, 58 A. R. 5, 8 P. 705 (applied); 74 C. 345, 346, 347, 348, 350, 16 P. 189, 190, 192 (applied); 77 C. 54, 57, 11 A. S. 235, 18 P. 808, 809 (construed and applied); 80 C. 65, 67, 22 P. 69, 70 (applied); 83 C. 521, 536, 23 P. 695, 699 (cited); 91 C. 606, 607, 27 P. 934, 935 (construed and applied); 101 C. 532, 535, 539, 40 A. S. 81, 35 P. 1054 (applied); 102 C. 202, 207, 36 P. 358 (cited); 122 C. 341, 349, 68 A. S. 35, 55 P. 3 (held not applicable); 123 C. 491, 493, 494, 496, 56 P. 254 (applied, cited, construed, and referred to). As to many miscellaneous matters as to acknowledgment of instruments, see note § 1180, ante. § 1192. FORM OF CERTIFICATE OF ACKNOWLEDG- MENT BY ATTORNEY IN FACT. The certificate of acknowl- edgment by an attorney in fact must be substantially in the following form: State of , ) ^ss. County of j On this day of , in the year , before me [here insert the name and quality of the officer] personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name of thereto as principal, and his own name as attorney in fact. History? Enacted March 21, 1872. As to approved form of acknowledgment, see Kerr's Cyc. C. C. § 1192, note. As to many miscellaneous matters as to acknowledgment of instruments, see note § 1180, ante. 638 Tit.IV.ch.IV.art.III.] SIGNATURES. §§ 1193-1195 § 1193. OFFICEKS MUST AFFIX THEIR SIGNATURES. Officers taking and certifying acknowledgments or proof of instruments for record, must authenticate their certificates by affixing 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 acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 397, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 5 pars, annotation. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what); 90 C. 444. 478, 27 P. 356, 367 (construed and applied): 150 C. 520, 534, 89 P. 338 ("Notary Public," after one's signa- ture to certificate of acknowledgment, is sufficient statement of "name of office"). As to many miscellaneous matters as to acknowledgment of instruments, see note § 1180, ante. § 1194. CERTIFICATE OF AUTHORITY OF JUSTK ES IX CERTAIN CASES. The certificate of proof or acknowl- edgment, 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 under the hand and seal of the clerk of the county in which the justice resides, setting forth that sucli justice, at the time of taking such proof or acknowl- edgment, was authorized to take the same, and that the clerk is acquainted with his handwriting, and believes that the signature to the original certificate is genuine. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 135 C. 173, 176, 67 P. 768 (applied). As to many miscellaneous matters as to the acknowledgment of instruments, see note SllSO. ante. § 1195. I'ROOF OF EXEC UTIO>, HOW 3IAI)E. Proof of the execution of an instrument, when not acknowledged, maj* be made either: 639 §§ 1196, 1197 CIVIL CODE. [Div.II,Pt.IV. 1. By the party executing it, or either of them; or, 2. By a subscribing witness; or, 3. By other wi-tnesses, in cases mentioned in section eleven hundred and ninety-eight. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 55 C. 564, 565, 566 (meaning' of "instrument" — It does not em- brace what); 64 C. 267, 271, 30 P. 816, 817 (applied); 83 F. 48, 56 (instrument creating trust in lands, though unacknowledged, may be recorded, upon proof of its execution). As to many miscellaneous matters as to the acknowledgment of instruments, see note § 1180, ante. §1196. T^ITNESS MUST BE PERSONALLY KNOWN TO OFFICER. If by a subscribing witness, such witness must be personally known to the officer taking 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. History: .T^nacted March 21, 1872. 55 C. 564, 565 (meaning of "instrument" — -it does not embrace what); 89 C. 547, 550 (erroneously cited for §1996), 26 P. 1095, 1096 (correct citation). As to many miscellaneous matters as to the acknowledg- ment of instruments, see note § 1180, ante. §1197. WITNESS MUST PROVE, WHAT. The subscrib- ing witness must prove that the person whose name is sub- scribed 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. History: Enacted March 21, 1872. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what); 89 C. 547, 550 (erroneously cited for §1997), 26 P. 1095, 1096 (correct citation). As to many miscellaneous matters as to the acknowledgment of instruments, see note § 1180, ante. 640 Tit.IV,ch.IV,art.III.] HANDWRITING. §§ 1198, 1199 § 1198. HAADWRITING MAY BE PROVED, WHEN. 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 witnesses are dead; or, 2. When the parties and all the subscribing witnesses are non-residents of the state; or, 3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or, 4. When the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due dili- gence in attempting to serve the subpoena or attach- ment; or, 5. In case of the continued failure or refusal of the wit- ness to testify, for the space of one hour, after his appear- ance. History: Enacted March 21, 187:!. See Kerr's Cyc. C. C. for 3 pars, annotation. 55 C. 564, 565 (meaning of "instrument"— it does not embrace what); 64 C. 267, 271, 30 P. 816 (cited); 83 F. 48, 56 (instru- ment creating trust in lands, though unacknowledged, may be recorded, upon proof of its execution). As to many miscellaneous matters as to the acknovvledgmont of instruments, see note §1180, ante. §1199. EVIDEXE OF HANDWRITING MUST PROVE, WHAT. The evidence taken under the preceding section must satisfactorily prove to the officer the following facts: 1. The existence of one or more of the conditions men- tioned therein; and, 2. That the witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signature, and that it is genu- ine; and, 3. That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well Kerr-s C. C— 21 641 §§ 1200, 1201 CIVIL CODE. [Div.II.Pt.IV. acquainted with his signature, and that it is genuine; and, 4. The place of residence of the witness. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 227, 228. 55 C. 564, 565 (meaning of "instrument" — it does not embrace what); 83 F. 48, 56 (instrument creating trust in lands, though unackiMiwledged, may be recorded, upon proof of its execu- tion). As to many miscellaneous matters as to the acknowledgment of instruments, see note §1180, ante. § 1200. CERTIFICATE OF PROOF. An officer taking proof of tlie execution of any instrument must, in his cer- tificate indorsed thereon or attached thereto, set forth all the matters 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 before him, their places of residence respectively, and the substance of their testi- mony. History: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 55 C. 564, 565 (meaning of "instrument"— it does not embrace what). As to many miscellaneous matters as to the acknowh'dgment of instruments, see note § 1180, ante. §1201. OFFICERS AUTHORIZED TO DO CERTAIN THINGS. Officers authorized to take the proof of instruments are authorized in such proocedings: 1. To administer oaths or affirmations, as prescribed in section two thousand and ninety-three, Code of Civil Pro- cedure; 2. To employ and swear interpreters; 3. To issue subpoena, as prescribed in section nineteen hundred and eighty-six. Code of Civil Procedure; 4. To punish for contempt, as prescribed in sections nine- teen hundred and ninety-one, nineteen hundred and ninety- three, nineteen hundred and ninety-four, Code of Civil Pro- cedure. 642 Tit.IV,ch.IV,art.III.] CERTIFICATION. §§ 1202, 1203 The civil damages and forfeiture to the party aggrieved are prescribed in section nineteen hundred and ninety-two, Code of Civil Procedure. Hi.-itory: Enacted March 21, 1872. 55 C. 564, 565 (meaning- of "instrument" — it does not embrace what). As to many miscellaneous matters as to tlie acknowledgment of instruments, see note § 1180, ante. §1202. IXSTRIMEM IMPROPERLY CERTIFIED, HOW CORRECTED. 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 superior court to obtain a judgment correcting the certificate. History; Enacted Marcli 21, 1872: amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 397, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 604. See Kerr's Cyc. C. C. for 9 pars, annotation. 53 C. 482, 485, 486, 487 (held not applicable): 55 C. 564, 565 (meaning of "instrument" — it does not embrace wliat): 59 C. 507, 514 (applied); 63 C. 286. 288 (construed and applied): 73 C. 452, 454, 2 A. S. 823, 15 P. 82, 83 (construed and applied); 116 C. 375, 376, 48 P. 325 (construed and applied); 5 C. A. 175, 183, 89 P. 1001, 1004 (copy of notice of appropriation of water, thougli not In the excepted classes, may be recorded without acknowledgment). As to deeds by married woman, see Kerr's Cyc. C. C. § 162 and note. As to many miscellaneous matters as to tlie acknowledgment of instruments, see note §1180, ante. § 1203. JUDG}ME>T PROVING INSTRl AIE>T. Any per- son interested under an instrument entitled to be proved for record, may institute an action in the superior court against the proper parties to obtain a judgment proving such instru- ment. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901. Stats, and Amdts. 1900-1, p. 398, held unconstitutional, see history, S 4 ante: amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 604. 643 §§ 1204-1206 CIVIL CODE. [Div.II.Pt.IV. 53 C. 482, 485, 486, 487 (construed as not applicable); 55 C. 564, 565, 566 (meaning- of "instrument"- — it does not embrace what); 5 C. A. 175, 183, 89 P. 1001, 1004 (copy of notice of appropriation of water, though not in the excepted classes, may be recorded without acknowledgrnent). As to many miscellaneous matters as to the acknowledgment of instruments, see note § 1180, ante. §1204. EFFECT OF JUDGMENT IN SUCH ACTION. A certified copy of the judgment in a proceeding instituted under either of the two preceding sections, showing the proof of the instrument, and attached thereto, entitles such instru- ment to record, with like effect as if acknowledged. History: Enacted March 21, 1872. 55 C. 564, 565, 566 (meaning of "instrument" — -it does not em- brace what). As to many miscellaneous matters as to the acknowledgment of instruments, see note § 1180, ante. §1205. CONVEYANCE HEKETOFORE MADE TO BE GOVERNED BY THEN EXISTING LAWS. The legality of the execution, acknowledgment, 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 legality upon the laws in force when the act was performed. History: Enacted March -21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 53 C. 482, 486, 487 (construed); 55 C. 564, 565, 566 (meaning of "instrument" — it does not embrace what). As to many miscellaneous matters as to the acknowledgment of instruments, see note § 1180, ante. § 1206. RECORDING, AND AS EVIDENCE, TO BE GOV- ERNED BY THEN EXISTING LAWS. All conveyances of real property made before this code goes into effect, and acknowledged or proved according to the laws in force at the time of such making and acknowledgment or proof, have the same force as evidence, and may be recorded in the 644 TIt.lV.ch.IV.art.m.l valii>atiN(; iNSTurMHNT. § i207 same manner and with the like effect, as convej'ances exe- cuted and acknowledged in pursuance of this chapter. IllMtory: Knactt^d March 'Jl. IS"!'. §1207. VAL1I>ATI>(J DKFECTIVKLV KXKdTKD I>- STIUHENTS. HKCOHI) IMIVVHTS XHK E. (EHTIKIED COI'IES. Any instrument affecting the title to real properly, which was, previous to the first day of January, one thou- sand nine hundred nine, copied into the proper hook of record, kept in the office of any county recorder, imparts, after that date, notice of its contents to suhsequent pur- chasers and incumbrancers, notwithstanding any defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, or the ab- sence of any such certificate; but nothing herein afltects the rights of purchasers or incumbrances previous to that date. [rcrtifled copies ;is ovldcnoo.] Duly certified copies of the record of any such in.strunient may be read in evidence with like effect as copies of an instrument duly acknowledged and recorded; provided, when such copying in the proper book of record occurred within fifteen years prior to the trial of the action, it is first shown that the original instru- ment was genuine. [In olYcct, wlien.] Sec. 2. This act shall take effect on and be in fttrce from and after July first, nineteen hundred nine. IliMtory: Knactod Marc!) 30, 1S74, Code Amdts. IST.'l-J. p. •J2S: ariu-n.lid Marrh 4. 1897, Stats, and Amdts. 1897. p. 641: by Code Comnii.sslon. Act Marcli 1 (•. 1901, Stats, and Anults. 1900-1. p. 39S. act lu'ld unconslitiitlonal. s^ee hl.itory, $ 4 ante; aniendnient re-enacted Marcli 9. 1903, Stats, and Anidf.q. 1903, p. 108: amended February 22. 1909. Stats, and Aindfs. 19it9. p. 4.*;. See Kerr's Cyc. C. C. for ."> par.*", annota tlun. .'.5 C. 564, .'iGB, 566 (mennInK of "Instrument" — It docs not em- brace what): (C. Dec. 1, 1891 t. 2S P. 216, 218 (conslru.-d and applied). As to many miscellaneous matters as to tlie ai-knowledg'nient of iTistrunients. see note 5 11'*". rin(i>. 645 § 1213 CIVIL CODE. [Div.II.Pt.IV. ARTICLE IV. EFFECT OF RECORDING, OR THE WANT THEREOF. [For Commissioners' comment on tliis article, see Kerr's Cyc. C. C] § 1213. Conveyance filed with recorder is constructive notice, etc. § 1214. Conveyances to be recorded, or are void, etc. § 1215. Conveyance defined. § 1216. Powers of attorney, how revoked. § 1217. Unrecorded instrument valid between the parties. § 1218. Recording certified copy of recorded instrument. § 1213. CONVEYANCE FILED WITH RECORDER IS CON- STRUCTIVE NOTICE, ETC. Every conveyance of real prop- erty acknowledged or proved and certified and recorded as prescribed by law from the time it is filed with the recorder for record is constructive notice of the contents thereof to subsequent purchasers 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 effect as though it was of the original convey- ance and where such original conveyance has been recorded in any county wherein the property therein mentioned is not situated a certified copy of such recorded conveyance may be recorded in the county where such property is situated with the same force and effect as if the original conveyance had been recorded in such county. Hi.storj-: Enacted March 21, 1872; amended March 3, 1897, Stats, and Amdts. 1897, p. 59; March 10, 1909, Stats, and Amdts. 1909, p. 278. See Kerr's Cyc. C. C. for 36 pars, annotation. 46 C. 603, 606, 607, 608, 609 (construed and applied — §§ 1213, 1214, and 1215 prevail over §2937); 55 C. 525, 528 (construed); 63 C. 312, 316 (construed); 70 C. 23, 25, 11 P. 391, 392 (held not applicable); 74 C. 217, 218, 15 P. 746 (cited); 90 C. 444, 477, 27 P. 356, 366 (construed and applied); 96 C. 298, 306, 307, 31 A. S. 209, 31 P. 166, 168 (construed and applied); 98 C. 514, 518, 33 P. 486, 488 (mortgag-e is not conveyance); 32 P. 885 (cited); 646 Tit.IV,ch.IV,art.IV.] RECORDING. § 1214 104 C. 395, 398, 399, 400, 38 P. 53 (referred to): 109 C. 186, 189, 50 A. S. 29, 41 P. 1010 (applied); 128 C. 627, 632, 61 P. 371 (ap- plied); 131 C. 552, 556, 557, 82 A. S. 391, 63 P. 844 (construed and applied with other sections); 134 C. 441, 447, 66 P. 587 (cited dis. op); 144 C. 19, 35, 77 P. 712 (construed — "conveyance" embraces what instruments); 146 C. 3, 8, 79 P. 527 (applied with other sections to contract to secure purchase money of land). §1214. COWEYAXES TO BE KECORDEI), OH .\KE VOID, ETC. Every conveyance of real property, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same prop- erty, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless such con- veyance shall have been duly recorded prior to the record of notice of action. History: Enacted March 21. 1872: amended Maroli 12. 1S05, Stats, and Amdts. 1895. p. 50. See Kerr's Cyc. C. C. for 87 pars, annotation. 46 C. 603, 606, 608, 609 (construed and applied — §§1213. 1214. and 1215 prevail over §2937): 63 C. 312, 316 (construed): 65 C. 158, 159, 3 P. 659 (construed and applied); 74 C. 217, 218. 15 P. 746 (cited): 74 C. 444, 446, 16 P. 242 (construed): 75 C. 552. 554, 17 P. 680, 681 (cited): 77 C. 534, 538, 20 P. 62, 64 (cited): 82 C. 621, 624, 625, 23 P. 193, 194 (construed and applied): 85 C. 270, 272, 24 P. 713, 714 (cited): 96 C. 298. 306, 307. 31 A. S. 209, 31 P. 166. 168 (cited): 97 C. 575, 582, 31 A. S. 209. 32 P. 579. 21 L. 33 (cited): 98 C. 514, 518, 33 P. 486, 487 (cited — mean- ing of "conveyance"): 100 C. 590, 591. 35 P. 170 (construed a.s not applicable): 104 C. 395. 398, 399, 38 P. 53 (applied): 109 C. 186, 189, 50 A. S. 29, 41 P. 1010 (applied): 113 C. 526, 531. 532, 45 P. 820 (held not applicable); 119 C. 61, 63, 64, 51 P. 11 (held not applicable); 124 C. 577. 579. 57 P. 463 (held not applicable); 126 C. 600. 604. 606, 59 P. 130 (applied): 130 C. 455, 458, 62 P. 738 (cited): 131 C. 552. 558, 559. 560. 82 A. S. 391, 63 P. 844 (applied): 134 C. 441, 443, 66 P. 587 (applied): 69 P. 228, 231 (cited): 144 C. 19, 31. 35, 77 P. 712 (cotistrued— "conveyance" embraces what instruments): 145 C 410, 413, 104 A. S. 61, 78 P. 957 (construed with §1217 and applied): 7 C. A. 140, 146, 93 P. 894, 895 (who is not subsequent purchaser in good faith for valuable consideration). 647 §§ 1215, 1216 CIVIL CODE. [Div.II.Pt.IV. §1215. CONVEYANCE DEFINED. The term "convey- ance," as used in sections twelve hundred and thirteen and twelve hundred and fourteen, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to any real property may be affected, except wills. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 46 C. 603, 607, 608, 609 (construed and applied — §§1213, 1214, and 1215 prevail over § 2937) ; 55 C. 525, 528 (cited) ; 55 C. 564, 566 (mean- ing of "instrument" — it does not embrace what) ; 74 C. 217, 218, 15 P. 746 (construed — "conveyance" includes mortgage) ; 74 C. 345, 349, 16 P. 189, 191 (construed); 96 C. 298, 307, 31 A. S. 209, 31 P. 166, 168 (construed); 98 C. 514, 518, 33 P. 486, 487 (con- strued); 98 C. 527, 529, 33 P. 458, 459 (construed); 104 C. 395, 398, 38 P. 53 (cited with other sections in discussion); 120 C. 177, 179, 52 P. 305 (construed); 126 C. 600, 603, 606, 59 P. 130 (applied); 144 C. 19, 35, 77 P. 712 (applied — "conveyance" embraces what instruments); 146 C. 3, 8, 79 P. 527 (applied with other sections to contract to secure purchase money of land, recorded in book of "covenants"). Sections of code construed together. — See Kerr's Cyc. C. C. § 1158 and note. §1216. POWERS OF ATTORNEY, HOW REVOKED. No instrument containing a power to convey or execute instru- ments affecting real property, which has been recorded, is revoked by any act of the party by whom it was executed, unless the instrument containing" such revocation is also acknowledged or proved, certified and recorded, in the same office in which the instrument containing the power was recorded. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 55 C. 564, 565, 566 (meaning of "instruinent" — it does not em- brace what). Power of attorney— As to revocation of.— See 110 A. S. 854. Same — Construction of — ^Whether limited to property then owned by the principal. — See 35 A. S. 593. Same— Covering several tracts of land — Judgment of cancel- lation and removal from one tract in proceedings to remove 648 Tit.IV,ch.IV,art.IV.] UNRECORDED DEED. § 1217 cloud from title does not affect the power as to the other tracts. — See 9 A. C. 874. Same — Effect of provision in declaring that it shall not be revoked by death. — See 6 L. N. S. 855. Same — Given to two or more — Construction of. — See 22 A. S. 726. Same — How revoked. — See 47 A. D. 343-348. Same — Notice of revocation of. — See 1 L. N. S. 577. Power to give option included in power of attorney to sell real estate. — See 10 L. N. S. 867. §1217. UMiECOKDED I>STRUME>T VALID BETWEEN THE PARTIES. An unrecorded instrument is valid as be- tween the parties thereto and those who have notice thereof. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 82 C. 621, 626, 23 P. 193, 195 (applied); 85 C. 270, 272, 24 P. 713, 714 (construed and applied); 96 C. 298, 305, 306, 31 A. S. 209, 31 P. 166, 168 (construed and applied); 100 C. 590, 591, 35 P. 170 (construed and applied); 37 P. 914, 916 (construed and applied); 104 C. 395, 398, 38 P. 53 (cited with other sections in discussion); 108 C. 250, 252, 253, 255, 256, 49 A. S. 84, 30 P. 783. 41 P. 472 (cited); 118 C. 258, 260, 50 P. 380 (construed); 119 C. 61, 63, 51 P. 11 (applied); 119 C. 364, 371, 51 P. 549, 51 P. 955 (construed and held not applicable); 124 C. 577, 579, 57 P. 463 (applied); 130 C. 455, 457, 62 P. 738 (construed and applied); 69 P. 228, 231 (referred to); 144 C. 19, 31, 77 P. 712 (referred to); 145 C. 410, 413, 104 A. S. 61, 78 P. 957 (construed with §1214 and applied); 146 C. 3, 9, 79 P. 527. 530 (applied to contract to secure purchase money of land, recorded in book of "Covenants"): 151 C. 118, 122, 90 P. 521 (purchaser with notice of another's claim cannot take advantage of fact that conveyance under which the other claims was not recorded); 150 F. 546, 548 (effect, in bankruptcy proceedings, of failure to record deed or mortgage given as security, until after grantor becomes bankrupt). Judicial sale of homesteads, — as to, see generally Kerr's Cyc. C. C. § 1241 and note. Knowledge of unrecorded deed. — See Kerr's Cyc. C. C. § 1214 and note. Possession puts purchaser on inquiry. — See Kerr's Cyc. C. C. § 1214 and note. Recitals in instruments constituting chain of title. — See Kerr's Cyc. C. C. § 18 and note pars. 30-42. Recordation — Effect of. — See Kerr's Cyc. C. C. § 1213 and note. 649 § 1218 CIVIL CODE. [Div.II.Pt.IV. § 1218. RECOKDING CERTIFIED COPY OF RECORDED INSTRUMENT. A certified copy of an instrument affecting the title to real property once recorded may be recorded in any other county, and, when so recorded, the record thereof has the same force and effect as though it was of the original instrument. History; Enacted at instance of Code Commision, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 398; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 604. G50 Tit.IV.ch.V.] TRANSFERS, VOID. § 1227 CHAPTER V. UNLAWFUL TRANSFERS. § 1227. Certain Instruments void against purchasers, etc. § 1228. Not void against purchaser having notice, unless fraud is mutual. § 1229. Power to revoke, when deemed executed. § 1230. Same. [Deemed executed when entitled to execute.] § 1231. Other provisions. §1227. CERTAIN I>STROIE>TS VOID AGAINST PUR- CHASERS, ETC. Every instrument, other than a will, affect- ing an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or encum- brancers thereon, is void as against every purchaser or en- cumbrancer, for value, of the same property, or the rents or profits thereof. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 55 C. 564, 566 (meaning of '"instrument" — it does not embrace what); 25 P. 404 (question of intent is one of fact); 114 C. 526. 535, 43 P. 613, 46 P. 460 (discussed in connection with § 1589 C. C. P. and other sections); 117 C. 140, 146, 48 P. 1025 (dis- cussed with otlier sections). As to exempt property, there can be none. — See 20 A. R. 150. Bona fide purchaser from fraudulent vendee, as to, see 28 A. D. 688; 28 A. D. 734. Declarations of vendor as evidence against hi.s vendee to show fraud. — See 42 A. D. 631. Fraud in conveyance of real estate, as to, generally, see 2 A. D. 77-81. Fraudulent transfer — As to creditors. — See Kerr's Cyc. C. C. § 3439 and note. Interest of party question of fact for jury. — See Kerr's Cyc. C. C. § 3442 and note. Knowledge of vendee as affecting validity of. — See 15 A. S. 695; 20 A. S. 632; 34 A. S. 395-402. Voluntary conveyance fraudulent, when. — See 28 A. S. 618. What are— as to, see 7 A. D. 703; 28 A. R. 721; 14 A. S. 739. What will avoid conveyance. — See 55 A. D. 411-415. 651 §§ 1228-1230 CIVIL CODE. [Div.II,Pt.IV. §1228. NOT VOID AGAINST PURCHASER HAVING NOTICE, UNLESS FRAUD IS MUTUAL. No instrument is to be avoided under the last section, in favor of a subsequent purchaser or encumbrancer having notice thereof at the time liis purchase vv'as made, or his lien acquired, unless the per- son in w^hose favor the instrument was made was privy to the fraud intended. History: Enacted March 21, 1872, founded upon § 2, Act April 19, 1850, Stats. 1850, p. 266. See Kerr's Cyc. C. C. for 3 pars, annotation. 55 C. 564, 566 (meaning of "instrument" — it does not embrace what). Fraudulent conveyance — Knowledge of grantee. — See Kerr's Cyc. C. C. § 1227 note par. 9. Trust deed — Revocation of, — as to, see 20 A. S. 858-864. § 1229. POWER TO REVOKE, IVHEN DEEMED EXE- CUTED. Where a power to revoke or modify an instrument affecting the title to, or the enjoyment of, an estate in real property; is reserved to the grantor, or given to any other person, a subsequent grant of, or charge upon, the estate, by the person having the power of revocation, in favor of a purchaser or encumbrancer for value, operates as a revoca- tion of the original instrument, to the extent of the power, in favor of such purchaser or encumbrancer. History: Enacted March 21, 1872, founded upon § 4, Act April 19, 1850, Stats. 1850, p. 266. 55 C. 564, 566 (meaning of "instrument" — it does not embrace what); 132 C. 523, 558 (section refers to case where power to modify or revoke instrument affecting real property is reserved to grantor, or given to another — it assumes right to create such power, and states its effect in certain cases), 84 A. S. 70, 60 P. 442, 64 P. 1000, 1007. § 1230. SAME. [DEEMED EXECUTED lYHEN ENTITLED TO EXECUTE.] Where a person having a power of revoca- tion, within the provisions of the last section, is not entitled to execute it until after the time at which he makes such a grant or charge as is described in that section, the power 652 I Tit.IV,ch.IV.] OTHER PROVISIOXS. § 1231 is deemed to be executed as soon as he is entitled to exe- cute it. History: Enacted March 21, 1872, founded upon § 6, Act April 19, 1850, Stats. 1850, p. 267. § 1231. OTHER PROVISIOXS. Other provisions concern- ing unlawful transfers are contained in part two, division fourth, of this code, concerning the special relations of debtor and creditor. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. §§ 3439 et seq. and notes. 653 § 1237 CIVIL CODE. [Div.II.Pt IV. TITLE V. HOMESTEADS. Chapter I. General Provisions, §§ 1237-1261. 11. Homestead of the Head of a Family, §§ 1262-1265. m. Homestead of Other Persons, §§ 1266-1269. IV. Alienation of Homesteads of Insane Persons, §§ 1269a-1269c. CHAPTER I. GENERAL PROVISIONS. § 1237. Homestead, of what it consists. § 1238. From what may be selected. § 1239. From what not. § 1240. Exempt from forced sale. § 1241. Sale on execution, when. § 1242. How conveyed or encumbered. § 1243. How abandoned. § 1244. Same. [Effectual from when.] § 1245. Proceedings on execution against homestead. § 1246. Same. [Application, how made.] § 1247. Same. [Petition, where filed.] § 1248. Same. [Notice of hearing, service.] § 1249. Same. [Appointing appraisers.] § 1250. Same. [Appraisers to be sworn.] § 1251. Same. [Determining value and divisibility.] § 1252. Same. [Report of appraisers, contents.] § 1253. Same. [Setting off homestead exemption.] § 1254. Same. [Order directing sale, when.] § 1255. Same. [What bid may be received.] § 1256. Same. [Application of proceeds of sale.] § 1257. After sale, money equal to homestead exemption pro- tected. § 1258. Compensation of appraisers. § 1259. Costs. [How paid and collected.] § 1260. Who may select homestead, value of. § 1261. Head of a family defined. §1237. HOMESTEAD, OF WHAT IT CONSISTS. The homestead consists of the dwelling-house in which the claim- 654 Tit.V.ch.I.] HOMESTEADS. § li;37 ant resides, and the land on which the same is situated, selected as in this title provided. History: Enacted March •21, 1S72: aniendcd Marcli 30. 1874, Code Amdts. 1873-4, p. 228; amended by Code Conimision, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 398, held unconstitu- tional, see liistory, § 4 ante. See Kerr's Cyc. C. C. for 63 pars, annotation. 52 C. 629, 630 (construed and applied); 62 C. 125, 134 (cited); 62 C. 286, 289 (construed and applied); 4 P. 1177, 1178 (cited); 69 C. 195, 198, 10 P. 406, 407 (referred to); 70 C. 236, 239, 11 P. 656. 657 (referred to); 71 C. 300, 302, 303, 12 P. 230, 231 (referred to); 73 C. 590, 592, 2 A. S. 834, 15 P. 290, 292 (construed and applied); 75 C. 422, 424, 7 A. S. 180, 17 P. 539 (construed and- applied); 76 C. 639, 643, 18 P. 805, 807 (referred to in dis. op.); 78 C. 310, 312, 12 A. S. 58, 20 P. 715. 716, 3 L. 781 (referred to); 79 C. 608, 610, 12 A. S. 180, 21 P. 973 (referred to); 80 C. 71, 73, 22 P. 79 (cited); 82 C. 226, 228, 233, 237, 16 A. S. 108, 22 P. 1145, 1146, 1147 (referred to); 92 C. 514, 519. 27 A. S. 158, 28 P. 593, 594 (referred to); 98 C. 472, 478, 33 P. 484, 485 (referred to); 117 C. 352, 353, 355, 59 A. S. 190, 49 P. 211 (construed and applied); 125 C. 320, 325, 57 P. 1070 (construed and applied); 126 C. 527, 528, 77 A. S. 206, 58 P. 1063 (construed and applied); 141 C. 646, 649. 99 A. S. 92, 75 P. 301 (construed — what is meant by "dwelling house"); 146 C. 426, 429, 106 A. S. 47. 80 P. 620 (construed — no limit of area of homestead); 149 C. 687, 689. 87 P. 577 (referred to). HOMESTEA l)S — I N <;K.\ EH A I,. Abandonment of — As to generally, see Kerr's Cyc. C. C. §§ 1243, 1244 and notes. Same — Absence from by reason of conviction and confinement in penitentiary, not a. — See 8 A. C. 678; 3 L. N. S. 515. Same — By child or children, — See 56 L. 84. Same — By husband deserting and leaving family, effect on rights. — See 11 A. C. 423. Same — By stepfather or stepmotiier. — See 56 L. 84. Same — By surviving parent. — See 56 L. 81. Same — Departure from fft APPRAISERS.] 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 petition, appoint three disinterested residents of the county to appraise the value of the homestead. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 4 pars, annotation. 62 C. 125, 138, 45 A. R. 654 (referred to with other sections); 82 C. 226, 230, 16 A. S. 108, 22 P. 1145, 1147 (referred to with other sections); 85 C. 71, 74, 24 P. 594, 595 (referred to in con- nection with other sections); 144 C. 659, 663, 79 P. 379 (creditor's process for reaching' excess in value): 145 C. 529, 533, 78 P. 1038 (construed); 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraisement and division or sale of prop- erty); 146 C. 739, 740 (referred to), 743 (§§1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79, 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to many miscellaneous matters as to homesteads, see note § 1237, ante. Exclusive mode prescribed.— See Kerr's Cyc. C. C. § 1245 and note par. 5. § 1250. SAME. [APPRAISERS TO BE SWORN.] The per- sons appointed, before entering upon the performance of their duties, must take an oath to faithfully perform the same. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 62 C. 125, 138, 45 A. R. 654 (referred with other sections); 82 C. 226, 230, 16 A. S. 108, 22 P. 1145, 1147 (referred to with other sections); 85 C. 71, 74, 24 P. 594, 595 (cited): 144 C. 659. 663, 79 P. 379 (creditor's process for reaching excess in value): 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraisement and division or sale of property); 146 C. 739, 740 (referred to), 743 (§§ 1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79. 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to many miscellaneous matters as to homesteads, see note § 1237, ante. Exclusive mode prescribed. — See Kerr's Cyc. C. C. § 1245 and note par. 5. 669 §§ 1251, 1252 CIVIL CODE. [Div.II.Pt.lV. § 1251. SAME. [DETERMINIJfG VALUE AND DIVISI- BILITY.] They must view the premises and appraise the value thereof, and if the appraised value exceeds the home- stead exemption they must determine wliether the land claimed can be divided without material injury. Hisstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 62 C. 125, 138, 45 A. R. 654 (referred to with other sections); 79 C. 608, 610, 12 A. S. 180, 21 P. 973 (construed and applied with other sections); 82 C. 226, 230, 16 A. S. 108, 22 P. 1145, 1147 (referred to with other sections); 85 C. 71, 74, 24 P. 594, 595 (cited); 144 C. 659, 663, 79 P. 379 (creditor's process for reaching excess in value); 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraisement and division or sale of prop- erty); 146 C. 739, 740 (referred to), 743 (§§1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79, 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to inany miscellaneous matters as to homesteads, see note § 1237, ante. Exclusive mode prescribed. — See Kerr's Cyc. C. C. § 1245 and note par. 5. § 1252. SAME. [REPORT OF APPRAISERS, CONTENTS.] Within fifteen days after their appointment they must make to the judge a report in writing, which report must show the appraised value and their determination upon the mat- ter of a division of the land claimed. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 4 pars, annotation. 62 C. 125. 138, 45 A. R. 654 (referred to with other sections); 82 C. 226, 230, 16 A. S. 108, 22 P. 1145, 1147 (referred to with other sections); 85 C. 71, 74, 24 P. 594, 595 (cited); 144 C. 659, 663, 79 P. 379 (creditor's process for reaching excess in value); 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraisement and division or sale of property); 146 C. 739, 740 (referred to), 743 (§§ 1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79, 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to many miscellaneous matters as to homesteads, see note § 1237, ante. Exclusive mode prescribed. — See Kerr's Cyc. C. C. § 1245 and note par. 5. 670 Tit.V.ch.I.] SETTING OFF EXEMPTION. §§ 1253, "1254 § 1253. SAME. [SETTIXG OFF HOMESTEAD EXEMP- TION.] If, from the report, it appears to the judge that the land claimed can be divided without 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 remainder of the land. Hifstory: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 400. held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for .5 pars, annotation. 52 C. 629, 630 (citing this section erroneously instead of §1263); 62 C. 125, 138. 45 A. R. 654 (referred to with other sec- tions); 75 C. 163, 165, 16 P. 760, 761 (cited), 79 C. 608, 610, 12 A. S. 180, 21 P. 973 (cited); 82 C. 226. 230. 16 A. S. 108, 22 P. 1145, 1147 (referred to with other sections) ; '85 C. 71, 74, 24 P. 594, 595 (cited); 144 C. 659, 663, 79 P. 379 (creditor's process for reaching- excess in value); 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraisement and division or sale of property); 146 C. 739, 740 (referred to), 743 (§§1245-1261 pro- vide plan for subjecting excess in value of homestead to execu- tion), 106 A. S. 79, 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to many miscellaneous matters as to homesteads, see note § 1237, ante. As to title of homesteader, see Kerr's Cyc. C. C. § 1238 and note. Divisibility of property. — See Kerr's Cyc. C. C. § 1251 and note pars. 2, 4. Exclusive mode prescribed. — See Kerr's Cyc. C. C. § 1245 and note par. 5. §1254. SAME. [(MJDEK DIRECTING SALE, WHE>.] If. from the report, it appears to the judge that the land claimed exceeds in value the amount of the homestead exemi)tion, and that it cannot be divided, he must make an order direct- ing its sale under the execution. History: Enacted March 21. 1872: amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 400, held unconstitutional, see history, § 4 ante. 671 §§1255,1256 CIVIL CODE. [Div.II,Pt.IV. See Kerr's Cyc. C. C. for 2 pars, annotation. 62 C. 125, 138, 45 A. R. 654 (referred to); 79 C. 460, 461, 21 P. 863 (referred to and discussed with other sections); 82 C. 226, 230, 22 P. 1145, 1147, 16 A. S. 108 (referred to with other sec- tions); 85 C. 71, 74, 24 P. 594, 595 (cited); 144 C. 659, 663, 79 P. 379 (creditor's process for reaching excess in value) ; 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraisement and division or sale of property) ; 146 C. 739, 740 (referred to), 743 (§§ 1245-1261 provide plan for subjecting excess in value of homestead to execution), 1254 (cited — no notice of hearing of report of appraisers required), 106 A. S. 79, 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to many miscellaneous matters as to homesteads, see note § 1237, ante. Exclusive mode prescribed. — See Kerr's Cyc. C. C. § 1245 and note par. 5. §1255. SAME. [WHAT BID MAY BE EECEIVED.] At such sale no bid must be received, unless it exceeds the amount of the homestead exemption. Hi-story: Enacted March 21, 1872. 62 C. 125, 138, 45 A. R. 654 (referred to); 82 C. 226, 230, 16 A. S. 108, 22 P. 1145, 1147 (referred to with other sections); 85 C. 71, 74, 24 P. 594, 595 (cited); 144 C. 659, 663, 79 P. 379 (creditor's process for reaching excess in value); 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraise- ment and division or sale of property); 146 C. 739, 740 (referred to), 743 (§§1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79, 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to many miscellaneous matters as to homesteads, see note § 1237, ante. Exclusive mode prescribed. — See Kerr's Cyc. C. C. § 1245 and note par. 5. § 1256. SAME. [APPLICATION OF PROCEEDS OF SALE.] If the sale is made, tlie proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see historJ^ § 4 ante. 672 TitV,ch.I.J EXEMPTION OF MONEY. §§1257,1258 See Kerr's Cvc. C. C. for 2 pars, annotation. 62 C 125 138, 45 A. R. 654 (referred to); 82 C. 226. 230, 16 A. S 108 22 P. 1145, 1147 (referred to with other sections); 85 C. 71 74' 24 P. 594 (referred to and discussed with §1260); 144 C. 659 663 79 P. 379 (creditor's process for reaching excess in value)- 'l46 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraisement and division or sale of Property) , 146 C 739, 740 (referred to), 743 (§1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A S 79 89 P 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to' many miscellaneous matters as to homesteads, see note 5 1237 ante Exclusive mode prescribed.— See Kerr's Cyc. C. C. § 1245 and note par. 5. § 1257. AFTER SALE, MONEY EQUAL TO HOMESTEAD EXEMPTION PROTECTED. The money paid to the claimant is entitled, 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 home- stead. History: Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 230. 62 C. 125 138, 45 A. R. 654 (referred to); 82 C. 226, 230, 16 A S 108 22 P. 1145, 1147 (referred to with other sections): 144 C 659 663, 79 P. 379 (creditor's process for reaching excess in value);' 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of proceedings for appraisement and division or sale of property) . 146 C 739 740 (referred to), 743 (§1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S 79 81 P 128- 152 C. 246, 247, 92 P. 485, 486 (referred to). ' As' to many miscellaneous matters as to homesteads, see note § 1237, ante. §1258. COMPENSATION OF APPRAISERS. The court must fix the compensation of the appraisers, not to exceed five dollars per day each for the time actually engaged. History: Enacted March 21, 1S72. 6' C r^^ 131 138, 45 A. R. 654 (referred to): 82 C. 226, 230, 16 A S 108 22 P. 1145, 1147 (referred to with other sections); 144 C; 659 663, 79 P. 379 (creditor's process for reaching excess in va'lue);' 146 C. 426, 429, 106 A. S. 47. 80 P. 620 (necessity of ■Kerr's C. C— 22 673 §§ 1259, 1260 CIVIL CODE. [Div.II,Pt.IV. proceedings for appraisement and division or sale of property); 146 C. 739, 740 (referred to), 743 (§§1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79, 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to many miscellaneous matters as to homesteads, see note § 1237, ante. §1259. COSTS. [HOW PAID AND COLLECTED.] The execution creditor must pay the costs of these proceedings in the first instance; but in the cases provided for in sec- tions twelve hundred and fifty-three and twelve hundred and fifty-four the amount so paid must be added as costs on execution, and collected accordingly. History: Enacted March 21, 1872. 62 C. 125, 138, 45 A. R. 654 (referred to); 82 C. 226, 230, 16 A. S. 108, 22 P. 1145, 1147 (referred to with other sections); 144 C. 659, 663, 79 P. 379 (creditor's process for reaching excess in value); 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (necessity of pro- ceedings for appraisement and division or sale of property) ; 146 C. 739, 743 (§§ 1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79, 81 P. 128; 152 C. 246, 247, 92 P. 485, 486 (referred to). As to many miscellaneous matters as to homesteads, see note § 1237, ante. §1260. WHO MAY SELECT HOMESTEAD, VALUE OF. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 62 C. 125, 135, 136-138, 45 A. R. 654 (construed); 76 C. 639, 644, 18 P. 805, 807 (construed); 85 C. 71, 74, 24 P. 594 (cited); 86 C. 134, 141, 24 P. 853, 855 (referred to); 108 C. 214, 219, 41 P. 467 (referred to); 121 C. 582, 585, 54 P. 87 (referred to); 126 C. 527, 528, 77 A. S. 206, 58 P. 1063 (referred to); 146 C. 426, 429, 106 A. S. 47, 80 P. 620 (homestead may embrace what area- value); 146 C. 739, 743 (§§1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79, 81 P. 128. 674 Tit.V.Ch.I.] HEAD OF FAMILY. § 1261 As to many miscellaneous matters as to homesteads, see note § 1237, ante. Several lots not exceeding statutory value. — See Kerr's Cyc. C. C. §1238 and note par. 19. §1261. HEAD OF A FAMILY DEFINED. The phrase "head of a family," as used in this title, includes within its meaning: 1. The husband, when the claimant is a married person. 2. Every person who has residing on the premises 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 brother or sister, or the minor child of a' deceased brother or sister. 3. A father, mother, grandfather, or grandmother. 4. The father, mother, grandfather, or grandmother of a deceased husband or wife. 5. ^n unmarried sister, or any other of the relatives mentioned in this section, who have attained the age of majority, and are unable to take care of or support them- selves. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 230; March 9, 1893, Stats, and Amdts. 1893, pp. 123, 124. In force March 9, 1893. See Kerr's Cyc. C. C. for 11 pars, annotation. 86 C. 134, 138, 141, 24 P. 853, 854. 855 (construed and applied); 108 C. 214, 219, 41 P. 467 (referred to); 118 C. 299, 301, 50 P. 649 (referred to); 121 C. 582, 585, 54 P. 87 (construed and applied); 146 C. 739, 743 (§§ 1245-1261 provide plan for subjecting excess in value of homestead to execution), 106 A. S. 79, 81 P. 128; 148 C. 157, 158, 82 P. 768 (invalid declaration of homestead by married woman living with her husband). As to many miscellaneous matters as to homesteads, see note § 1237, ante. Others than heads of families — Mode of selection by. — See Kerr's Cyc. C. C. § 1266 and note. Statement in declaration as to declarant being head of family. — See Kerr's Cyc. C. C. § 1263 and note. Wife has no right independent of husband. — See Kerr's Cyc. C. C. § 1237 and note. 675 §§ 1262, 1263 CIVIL CODE. [Div.II.Pt.IV. CHAPTER II. HOMESTEAD OF THE HEAD OP A FAMILY. § 1262. Mode of selection. § 1263. Declaration of homestead. [Must contain what.] § 1264. iDeclaration must be recorded. § 126.5. Tenure by which homestead held. § 1262. MODE OF SELECTION. In order to select a home- stead, the husband 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 manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record. HLstory: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 230. See Kerr's Cyc. C. C. for 20 pars, annotation. 62 C. 125, 134 (referred to), 137 (construed), 138 (construed and applied), 45 A. R. 654; 66 C. 457, 458, 6 P. 92 (referred to); 76 C. 527, 529, IS P. 650, 651 (applied); 76 C. 639, 644, 18 P. 805, 807 (cited dis. op.); 79 C. 203, 205, 21 P. 737, 738 (construed and applied); 98 C. 143, 148, 32 P. 941, 942 (cited); 108 C. 214, 219, 41 P. 467 (applied and cited); 110 C. 198, 203, 42 P. 640 (cited); 121 C. 582, 585, 54 P. 87 (referred to); 126 C. 527, 528, 77 A. S. 206, 58 P. 1063 (referred to); 148 C. 157, 158, 159, 82 P. 768 (state- ments necessary to valid declaration of homestead) ; 3 C. A. 525, 526, 86 P. 723 (construed — declaration of homestead is properly admitted in evidence, when). As to many miscellaneous matters as to homesteads, see note § 1237, ante. As to recording, see Kerr's Cyc. C. C. § 1264 and note. As to residence, necessity for, and what constitutes, see Kerr's Cyc. C. C. § 1237 and note. As to selection by wife, see Kerr's Cyc. C. C. §§ 1238, 1239 and notes. As to what declaration miist contain, see Kerr's Cyc. C. C. § 1263 and note. As to who is "head of family,' see Kerr's Cyc C. C. §1261 and note. §1263. DECLvlRATION OF HOMESTEAD. [MUST CON- TAIJV WHAT.] The declaration of homestead must contain: 1. A statement, showing that the person making it is the 676 Tit.V.ch.II.] DECLARATION OF. § 1264 head of a family, and, if the claimant is married, the name of the spouse; or, when the declaration is made bj' the wife, showing that her husband has not made such declaration, and that she therefore makes the declaration for their joint benefit; 2. A statement that the person making it is residing on the premises, and claims them as a homestead; 3. A description of the premises; 4. An estimate of their actual cash value. HLstory: Enacted March 21, 1872; amended March 30. 1874, Code Amdts. 1873-4, p. 231; amended by Code Coniniission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21,' 1905, Stats, and Amdts. 1905, p. 400. See Kerr's Cyc. C. C. for 34 pars, annotation. 52 C. 629, 630 (§1253 erroneously cited instead of §1263); 52 C. 630, 635 (cited); 54 C. 616, 617, 618 (cited), 620 (construed): 55 C. 136 (construed and applied); 56 C. 524, 527 (applied); 62 C. 125, 135 (cited), 136 (cited with § 1260), 137 (cited with § 1262), 138 (construed), 45 A. R. 654; 65 C. 343, 4 P. Ill (construed and applied); 66 C. 457, 458, 6 P. 92, 93 (construed and applied); 69 C. 195, 198, 10 P. 406, 407 (cited); 71 C. 300, 303, 304, 12 P. 230, 231 (construed and applied); 76 C. 524, 525, 18 P. 436, 437 (cited); 76 C. 639, 644, 18 P. 805, 807 (referred to in dis. op.); 79 C. 203, 205, 21 P. 737, 738 (construed); 82 C. 226, 228, 16 A. S. 108, 22 P. 1145 (cited); 21 P. 961 (construed); 83 C. 319, 320, 23 P. 301, 302 (referred to); 92 C. 1, 4, 27 P. 1094 (referred to); 98 C. 143, 148, 32 P. 941, 942 (referred to); 108 C. 214, 219, 41 P. 467 (cited); 110 C. 198, 203, 42 P. 640 (cited with other sections); 121 C. 582, 585, 54 P. 87 (applied); 122 C. Ill, 113. 68 A. S. 27, 54 P. 535 (construed and applied); 126 C. 527. 528, 77 A. S. 206. 58 P. 1063 (construed and applied); 141 C. 497, 500 (cited), 70 P. 298, 75 P. 58, 59; 148 C. 157, 158, 159, 82 P. 768 (construed— statements necessary to valid declaration of homestead); 149 C. 687, 689, 691, 87 P. 577 (referred to); 3 C. A. 525, 526. 86 P. 723, 724 (declaration of liomestead is properly admitted in evidence, when). As to many miscellaneous matters as to homesteads, see note § 1237, ante. § 12(J4. DECLARATION MIST BE RECORDED. The declaration must be recorded in the office of the recorder of the county in which the land is situated. Hiistory: Enacted March 21, 1872. 677 § 1265 CIVIL CODE. [Div.II,Pt.IV. See Kerr's Cyc. C. C. for 11 pars, annotation. 98 C. 143, 148, 32 P. 941, 942 (referred to); 110 C. 198, 203, 42 P. 640 (referred to); 3 C. A. 525, 526, 86 P. 723, 724 (declaration of homestead is properly admitted in evidence, wlien). As to many miscellaneous matters as to homesteads, see note § 1237, ante. As to sufficiency of filing for record without actual record- ation, see Kerr's Cyc. C. C. § 1265 and note. § 1265. TENURE BY ^VHICH HOMESTEAD HELD. From and after the time the declaration is filed for record, the premises therein described constitute a homestead. If the selection was made by a married person from the community property, or from the separate property of the spouse making the selection or joining therein, the land so selected on the death of either spouse, 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 the 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, except as provided in this title. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 231; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 8; April 16, 1909, Stats, and Amdts". 1909, p. 972. See Kerr's Cyc. C. C. for 30 pars, annotation. 50 C. 539, 543 (cited); 52 C. 294, 296-298 (construed); 54 C. 496, 501 (construed); 64 C. 397, 398 (construed), 1 P. 479, 480 (erroneously cited as §1365); 76 C. 527, 531, 18 P. 650, 652 (construed and applied); 76 C. 639, 644, 18 P. 805, 807 (construed and applied); 78 C. 310, 312, 12 A. S. 58, 20 P. 715, 716, 3 L. 781 (cited with other sections); 78 C. 470, 474, 21 P. 116, 117 (con- strued); 79 C. 203, 205, 21 P. 737, 738 (cited and construed); 80 C. 208, 209, 13 A. S. 116 (construed but erroneously cited as §1265 C. C. P.), 22 P. 141, 142 (correct citation); 81 C. 217, 219, 15 A. S. 47, 22 P. 551 (cited and construed); 81 C. 240, 243, 22 P. 655, 657 (law of title by survivorship applies to what homestead only); 82 C. 7, 10, 22 P. 938 (referred to); 83 C. 440, 442, 23 P. 376, 377 (applied); 85 C. 71, 74, 24 P. 594 (applied); 85 C. 619, 621, 24 P. 1071 (applied); 86 C. 134, 138, 139, 24 P. 853 (construed and applied); 86 C. 119, 120, 21 A. S. 26, 24 P. 852, 853, 854 (effect of husband's death, on homestead); 86 C. 678 Tit.V.ch.II.] TENURE HELD BY. § 1265 151, 153, 24 P. 850, 851 (referred to); 92 C. 370, 371, 28 P. 570, 571 (cited with C. C. P. §§1168, 1474); 92 C. 514, 519, 27 A. S. 158, 28 P. 593, 594 (referred to); 98 C. 143, 148, 32 P. 941, 942 (referred to); 98 C. 472, 478, 33 P. 484, 485 (referred to); 100 C. 446, 451, 34 P. 1085 (applied); 102 C. 338, 341, 36 P. 655 (referred to with §146 and C. C. P. §1474); 108 C. 627, 654, 48 A. S. 97, 41 P. 772 (construed with C. C. P. §1474); 111 C. 482, 483, 44 P. 168 (applied); 111 C. 484, 487 (applied but erroneously cited as §1265 C. C. P.), 44 P. 167 (correct citation); 113 C. 26, 30, 54 A. S. 321, 45 P. 15 (construed and applied); 118 C. 299, 300 (referred to), 301 (construed with §1261), 50 P. 649; 121 C. 267, 269, 53 P. 800 (construed with § 1468 in answering question, what is effect of order of probate court setting- apart, for a limited period, separate property of a decedent to the surviving spouse, which has already been devised to another person and upon which no antemortem homestead has been filed?). 121 C. 276, 53 P. 705 (applied without citation); 121 C. 647, 653, 54 P. 254 (construed with § 1465 C. C. P. — latter section controls); 132 C. 609, 611, 64 P. 995 (cited in con- nection with C. C. P. § 1474); 139 C. 71, 72, 72 P. 632 (referred to with C. C. P. §§1465, 1469, 1474); 139 C. 149, 151, 72 P. 909 (dis- tinct difference between this section and §§ 1468 and 1474 C. C. P. pointed out and commented vipon); 144 C. 144, 147, 77 P. 885 (what provision of this section is not contained in § 1465 C. C. P.); 6 C. A. 774, 778, 779, 93 P. 295 (construed with §1465 C. C. P. — latter section controls); 7 C. A. 199, 201, 93 P. 1047, 1048 (the provisions of this section must be read into § 1474 C. C. P.). As to debts for which homestead can be taken, see Kerr's Cyc. C. C. § 1241 and note, and particularly pars. 13 et seq. As to many miscellaneous matters as to homesteads, see note § 1237, ante. As to title of homestead, see Kerr's Cyc. C. C. § 1238 and note pars. 24-29. Descent and devise of homestead. — See Kerr's Cyc. C. C. §§ 1386, 1402 and notes: and see Kerr's Cyc. C. C. P. §§ 1474, 1475 and notes. Husband and wife may be joint tenants or tenants in com- mon, etc. — See Kerr's Cyc. C. C. §161 and note. Recordation — Time of filing. — See Kerr's Cyc. C. C. § 1'.' note par. 10. Setting apart homestead to survivor of minor children. — See Kerr's Cyc. C. C. P. § 1465 and note. 679 §§ 1266-1268 CIVIL CODE. [Div.II.Pt.IV. CHAPTER III. 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 liomestead. § 1266. MODE OF SELECTION. Any person other than the head of a family, in the selection of a homestead, must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a "declaration of homestead." History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see history, § 4 ante. 86 C. 134, 141, 24 P. 853, 855 (good declaration for any person other than head of family); 148 C. 157, 159, 82 P. 768 (§§1266- 1269 refer to what persons). As to constitutionality of statute, see Kerr's Cyc. C. C. § 1266, note. As to many miscellaneous matters as to homesteads, see note § 1237, ante. § 1267. DECLARATION OF HOMESTEAD. The declara- tion must contain everything required by the second, third, and fourth subdivisions of section twelve hundred and sixty- three. History: Enacted March 21, 1872. 86 C. 134, 141, 24 P. 853, 855 (referred to in concurring opinion of Beatty, C. J., in discussing sufficiency of declaration); 148 C. 157, 159, 82 P. 768 (§§ 1266-1269 refer to what persons). As to many miscellaneous matters as to homesteads, see note § 1237, ante. § 1268. DECLARATION MUST BE RECORDED. The decla- ration must be recorded in the office of the county recorder of the county in which the land is situated. Hi.st(KM.VM.\( IN((KMrKTE>T (repealedl. Hi.«VHAT MAY PASS BY AVILL. Every estate and interest* in real or personal property, to which heirs, hus- band widow, or next of kin might succeed, may be disposed of by will, exceiit as othenvise provided in sections fourteen hundred and one and fourteen hundred and two. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 6 pars, annotation, lion "^R? ^95 44 P. 734 (construed). is S eicuti'on revocation, and classes of wills, see note § mo. ante! 2 Church's New Probate Law and Practice. 1514. ''As'^to^'testamentary power of husband and wife over com- munity property, see Kerr's Cyc. C. C. § 1402 and note. § 1*75 WHO MAY TAKE BY WILL. A testamentary dis- position may be made to any person capable by law of taking the property so disposed of, except that corporations other than counties, municipal . corporations, and corporations formed for scientific, literary, or solely educational or hospi- tal purposes, cannot take under a will, unless expressly authorized by statute; subject, however, to the provisions of section thirteen hundred and thirteen. HIstorv: Enacted March 21. 1872; amended March 29, 1874 roToArndts 1873-4, p. 275; amended by Code Comna.ss.on, Act Code Amais. loio t, t- unconsti- March 16, 1901, Stats, and Amdts. 1900-1, p. '*";' j'^'!; . rt- 1 c^^ history § 4 ante; amendment substantially re en ITd Ma h 'o 1903' Stats, and Amdts. 1903. p. ^58. me e 1, ^mSinTthe words "counties, "--icipal -rporation. and t^^^^ amendment of the Code Commission '"^f ^J^^' ^^^ "^"'''"JJs omitted words. March 21. 1905, Stats, and Amdts. 1905. p. 6O0. See Kerr's Cyc. C. C. for 23 pars, ^""^tftion 59 C. 131 (construed and «PP'f ..^^^'V^ 6 1 fcons^rued and C. 308. 309 (construed and appUed) . 3 C. 6^-0.^6.1 i^ ^ ^^^ applied with §1313). 1-3 ^- „^' ^ Mvrick's Prob. Rep. 134. 135 strued and ^PP^^^^^'^f J-.V^^'Vafs "Mvrick's Prob. Rep. 213 (construed and applied with §131,i). .vijrit«.o (construed and applied). 691 § 1276 CIVIL CODE. [Div.II,Pt.IV. As to capacity of corporation to take by devise, see 2 Prob. Rep. Ann. 674-679. As to capacity of corporation to take title to real estate, see 94 A. D. 381-387. As to collateral attack upon right of corporation to take by devise, see 2 Prob. Rep. Ann. 674-679. As to devise to charitable uses, see 80 A. D. 315. As to devise to corporations, see 18 A. D. 541; 80 A. D. 315. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to extrinsic evidence as applied to wills, see 4 Prob. Rep. Ann. 467-476. As to gifts by will designating no donee, see 80 A. D. 314. As to misnomer in gife to legatee, see 4 Prob. Rep. Ann. 81. As to position of municipal corporations as legatees or devisees, see 4 Prob. Rep. Ann. 113-116. As to right of private persons to contest power of corpora- tion to take or hold property, see 2 L. 387; 13 L. 293-297. As to whether heirs of a testator may assail a devise or bequest to a corporation, see 60 A. S. 318- 321. § 1276. WRITTEN WILL, HOW TO BE EXECUTED. Every will, other than a nuncupative will, must be in writing; and every will, other than an olographic [holographic] will, and a nuncupative will, must be executed and attested as follows: 1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto; 2. The subsei iptioii must be made iu the presence of the attesting- witnesses, or be acknowledged 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 acknowl- edging the same, declare to the attesting witnesses that the instrument is his will; and, 4. There must be two attesting witnesses, each of whom must sign the same as a witness, at the end of the will, at the testator's request and in his presence. History: Enacted March 21, 1872, founded upon § 3 Act April 10, 1850, Stats. 1850, p. 177; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 402, held unconsti- 692 Tit.VI.ch.I.] HOLOGRAPHIC WILLS. .^_j281 tutional. see history. § 4 ante: amendment re-enacted Mart. ^^ 1905. Stats, and Amdts. 190.5, p. 605. ^ See Kerr's Cyc. C. C. for 145 pars, annotation. 54 C. 509. 517. 518, 35 A. R. 83 (construed and ''^PP''^**> -/^J;- 519 520, 521. 9 P. 554 (construed and applied); 96 C. o98, 600, 601 31 P 553. 22 L. 370 (construed and applied; 107 C. 1, 6. 40 P. 15 *28 L. 414 (construed and applied): 110 C. 387, 390, 391. 393. 52 A.'s. 104. 42 P. 815, 30 L. 460 (construed and applied); ^C. Nov. 4. 1897) 50 P. 927 (construed and applied); 142 C. 373. 375. 7.1 P. 1086 "(construed and applied); 145 C. 407, 409. 78 P. 964 (con- strued and applied with § 1277 and §1309 of C. C P): (C- ;Vprn 3 1905) 80 P 700. 702. 704 (construed and applied). M> ricK s Prob Rep. 210. 211 (construed and applied); Myrick's Prob. Rep. 140 (construed and applied with |1277): 146 C. 455^460 461 (source of section— constructive). 465 (application by Beatty. C. J., in con. op.), 80 P. 700. 106 A. S. 53, 2 A. C.j26. As to attestation by mark, see 22 L. 370-373. As to acknowledgment by testator, and attestation of wit- nesses, see 5 L. ed. N. Y. Ch. Rep. 855. ,.,,„, As to execution, publication, and attestation of will, and sufficiency thereof, see 37 A. D. 260; 40 A D. 231; 45 A. d. 442: 52 A D. 105; 76 A. D. 677; 80 A. D. 242; 1 L. 161. 491; 8 L. 822. As to execution, revocation, and classes of wills, see note §1270. ante; 2 Church's New Probate Law and Practice, l.ol4. 1535-1553. ,., o<- * r. -jk: As to how far an unexecuted will is valid, see 36 A. D. i\h- 322. As to law concerning signing of wills, see 42 A. D. 571. As to mere want of recollection of witness to signing and attestation, see 37 A. D. 260; 45 A. D. 443. , ^, ,. nu As to proof of due execution of will, see 5 L. ed. N. \. cn. As to' publication of will and the necessity and sufficiency thereof, see 37 A. D. 260. . As to requisites of statutes to be complied with in exec nil. .n and proof of wills, see 5 L. ed. N. Y. Ch. Rep^. 85r,. As to signature by mark, see 22 L. 370-373. As to signature of witnesses before testator, see 14 '" ""'• As to what is a signature or subscription, see Kerr s Cyc. c. C. §14 note pars. 67-77. As to what is sufficient attestation to a will, see 9- A. P. 6.», 30 A. S. 882. , As to what is sufficient execution of will, see 30 A. b. hS- §1277. DEFIMTION OF AX [HIOLOORAIMIK >VIM.. An [h]olograi)hic will is one that is entirely written, dated, and signed bv the hand of the testator himself. It is subject 693 § 1276 CIVIL CODE. [Div.II,Pt.IV. ■^^ ^ -m, and may be made in or out of this state, Re' CO -3 ^ -^ 3 witnessed. 'story: Enacted March 21, 1872. \C. C. for 58 pars, annotation. ,u i.construed and applied); 61 C. 468, 475, 44 A. R. .construed and applied); 64 C. 427, 1 P. 701 (construed and applied) ;-"70 C. 140 (referred to but erroneously cited as § 1273), 143 (applied), 11 P. 587, 588 (erroneously cited as §1273); 100 C. 202, 207, 208, 38 A. S. 279, 34 P. 614 (construed and applied); 112 C. 513, 518, 519, 44 P. 1028 (construed and applied); 135 C. 28, 29, 87 A. S. 96, 66 P. 961 (construed and applied); 145 C. 82, 83, 78 P. 340 (construed and applied); 145-407, 409, 78 P. 964 (construed and applied with other sections); 151 C. 77, 79, 90 P. 192 (what is invalid as a holographic will and, standing alone, not entitled to probate); Myr. Prob. Rep. 140 (construed and applied with § 1276). As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to meaning of term holographic, see 52 A. D. 591. As to necessity of attestation of holographic will, see 52 A. D. 593. As to necessity of mentioning place of execution, see 52 A. D. 592. As to necessity of mentioning place where holographic will may be deposited or found, see 52 A. D. 593. As to what constitutes signing of holographic will, see 52 A. D. 592. For definition of date as used in holographic will, see 52 A. D. 592. § 1278. WITNESS TO ADD RESIDENCE. A witness to a written will must write, with his name, his place of resi- dence ; and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the valid- ity of the will. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 54 C. 509, 518, 35 A. R. 83 (referred to). As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. 694 Tit.VI.ch.I.] MUTUAL, CONDITIONAL. §§ 1279-1281 § 1279. MUTUAL AVILL. A conjoint or mutual will is valid, but it may be revoked by any of the testators, in like manner with any other will. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to validity of joint wills, see 68 A. D. 407, 410; 73 A. D. 754; 82 A. D. 485. Upon the subject of joint wills, see 68 A. D. 407-410. §1280. COMPETENCY OF SUBSCRIBIXG WITNESS. If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent incompe- tency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise satis- factorily proved. History: Enacted March 21, 1872, founded upon § 4 Act April 10, 1850, Stats. 1850, P- 177. See Kerr's Cyc. C. C. for 7 pars, annotation. As to competency of witnesses, see 30 A. S. 882; 51 A. S. 134; 77 A. S. 459. As to effect of pardon of a witness, see 47 A. S. 915. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to meaning of words "credible" and "competent" when used with reference to witnesses, see 20 A. D. 488. §1281. CONDITIONAL WILL. A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the con- dition. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. As to conditional wills, see 59 A. R. 46, 48; 2 A. S. 617. As to conditions precedent, subsequent, conditional devises, operation, effect, and enforcement of, see 1 L. 837; 9 L. 165. As to distinction between words of limitation and condition in wills, see 9 L. 165. 695 §§ 1282, 1283 CIVIL CODE. [Div.II.Pt.lV. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to interpretation and effect of conditional wills, see Kerr's Cyc. C. C. §§ 1345-1349 and notes. § 1282. GIFTS TO SUBSCRIBING WITNESSES VOID. CREDITOR COMPETENT WITNESS. All beneficial devises, legacies, and gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent siihscribiug- witnesses to the same; but a mere charge on the estate of the testator for the payment of debts does not prevent his creditors from being competent witnesses to his will. Hi.story! Enacted March 21, 1872, founded upon § 5 Act April 10, 1850, Stats. 1850, p. 177. See Kerr's Cyc. C. C. for 16 pars, annotation. 120 C. 311, 315, 49 P. 563, 52 P. 586 (referred to); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty). As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. § 1283. W ITNESS WHO IS A DEVISEE, ENTITLED TO SHARE TO AMOUNT OF DEVISE, WHEN. If a witness, to whom any beneficial devise, legacy, or gift, void by the pre- ceding section, 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 bequeathed to them. History: Enacted March 21, 1872, founded upon § 6 Act April 10, 1850, Stats. 1850, p. 177; amended March 30, 1874, Code Amdts. 1873-4, p. 232. 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty). 696 Tit.VI,ch.I.] WILL OUT OF STATE. §§ 1284, 1285 As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. § 1284. WILL MADE OUT OF THIS STATE (repealed). History: Enacted March 21, 1S72, founded upon § 23 Act April 10, 1850, Stats. 1850, p. 179; repealed March 30, 1874, Code Amdts. 1873-4, p. 232. §1285. WILL MADE OUT OF STATE NOT VALID, IX- LESS. No will made out of this state is valid as a will in this state, unless executed according to the provisions of this chapter, except that a will made in a state or countrj^ in which the testator is domiciled at the time of his death, and valid as a will under the laws of said state or country, is valid in this state so far as the same relates to personal property, subject, however, to the provisions of section thir- teen hundred and thirteen. History: Enacted March 21, 1872, amended March 30, 1874, Code Amdts. 1873-4, p. 232; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 402, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 606. See Kerr's Cyc. C. C. for 22 pars, annotation. As to conflict of laws and probate of will made prior to passing of probate act, see 65 A. D. 547. As to conflict of laws, and testator's domicile controlling as to personal estate, see 2 A. D. 454. As to effect of probate in another state, see 48 L. 130-153. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Chvirch's New Probate Law and Practice, 1514, 1535-1553. As to interstate comity and conflict of laws, see 3 Prob. Rep. Ann. 267-271. As to legislative intent governing in construction of statutes, see 74 A. D. 534. As to statutes regarding prol)ate of copy of will in other states, see 73 A. D. 56-62. As to trust in personal property, see 8 Paige Ch. (N. Y. ) 4 L. ed. 434-436. As to what laws govern execution of will, see 43 A. D. 519; 51 A. D. 574. As to what law governs in cases of foreign wills of real and personal estate, see 5 Prob. Rep. Ann. 206-208. 697 §§ 1286-1288 CIVIL CODE. [Div.II.Pt.IV. § 1286. SUBSEQUENT CHANGE OF DOMICILE (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 232. § 1287. REPUBLICATION BY CODICIL. The execution of a codicil,, referring to a previous will, has the effect to republish the will, as modified by the codicil. Hi-story: Enacted March 21, 1872. See Kerr's. Cyc. C. C. for 25 pars, annotation. 94 C. 670, 673, 30 P. 99, 100 (construed and applied with other sections); 138 C. 432, 434, 435, 436, 438, 71 P. 512 (construed and applied); 151 C. 77, 79, 90 P. 192 (adoption in will or codicil of existing- paper by reference); 152 C. 753, 759, 93 P. 1012, 1013 (will not to be disturbed by codicil further than to give it effect). As to construction and effect of a codicil, see 55 A. D. 126-129. As to effect of destruction of codicil upon a will, see 55 A. D. 126-129. As to effect of unattested codicil, see 55 A. D. 126-129. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to revival and republication of will, see 7 L. 485-488. As to revocation of will by subsequent will and revival of former by destruction of the latter, 37 L. 561-579. Holographic will. — As to effect of codicil to holographic will, see Kerr's Cyc. C. C. § 1277 and note. § 1288. NUNCUPATIVE WILL, HOW TO BE EXECUTED. A nuncupative will is not required to be in writing, nor to be declared or attested with any formalities. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 19 pars, annotation. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to nuncupative wills, see 8 L. 39-41; 9 L. 829. As to probate of nuncupative will, see Kerr's Cyc. C. C. P. § 1344 and note. As to what is necessary to make a valid nuncupative will, see 74 A. D. 431. 698 Tit.VI.ch.L] NUNCUPATIVE WILL. §§ 1289, 1290 § 1289. KEQUISITES OF A VALID >U>CUPATIVE WILL. To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed: 1. The estate bequeathed must not exceed in \alne the sum of one thousand dollars. 2. It must be proied by two witnesses who were present at the making thereof, one of whom was asked by the testa- tor, at the time, to bear witness that such was his will, or tu that effect. 3. The decedent must, at the time, have been in actual mili- tary 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 expect- ation of immediate death from an injury received the same day. History: Enacted March 21, 1872, founded upon § 7 Act April 10, 1850, Stats. 1850, p. 177; amended March 30,. 1874, Code Amdts. 1873-4, p. 233. See Kerr's Cyc. C. C. for 49 pars, annotation. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to necessity of witnesses to nuncupative wills, see 81 A. D. 230. As to nuncupative wills, see 18 A. D. 512; 20 A. D. 44-48; G7 A. S. 572-579; 30 Encyc. L. 560-571. § 1290. VnOOY OF >L>tUPATIVE WILLS. [WHE\ TO HE OFFEllED.] No proof must be received of any nuncu- pative will, unless it is offered within six months after speak- ing the testamentarj^ words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken. History: Enacted March 21, 1872, founded upon § 8 Act April 10, 1850, Stats. 1850, p. 178. See Kerr's Cyc. C. C. for 5 pars, annotation. See Kerr's Cyc. C. C. P. §§ 1344-1346 and notes; also Kerr's Cyc. C. C. P. §§ 1288, 1289 and notes. 699 §§ 1291, 1292 CIVIL CODE. [Div.II,Pt.IV. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. § 1291. PEOBATE OF MINCUPATIYE WILLS. 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 committed to writing, and process issued to call in the widow, or other persons inter- ested, to contest the probate of such will, if they think proper. Htstory: Enacted March 21, 1872, founded upon § 9 Act April 10, 1S50, Stats. 1850, p. 178. See Kerr's Cyc. C. C. for 2 pars, annotation. See Kerr's Cyc. C. C. §§ 1288, 1289, 1291 and notes. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. Probate of nuncupative wills. — See Kerr's Cyc. C. C. P. §§ 1344- 1346. § 1292. WRITTEX WILL, HOW REVOKED. 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 writing of the test.ator, declar- ing 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, canceled, obliterated, or destroyed, with the intent and for purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction. Hi!st<,»ry: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 37 pars, annotation. 50 C. 595, 601 (construed and applied with § 1970 Code Civ. Proc); (C. Dec. 7, 1892), 31 P. 563 (construed and applied); 101 C. 609, 614, 38 P. 118 (construed and applied); 107 C. 1, 5, 6, 8, 40 P. 15, 16, 28 L. 414 (construed and applied with other sections); 108 C. 688, 690, 41 P. 771 (construed); 122 C. 224, 229, 700 Tit.VT.ch.I.] REVOCATION. §§ 1293-1295 233, 54 P. 745 (applied); 138 C. 432, 436, 71 P. 512 (construed with other sections); 148 C. 642, 644, 84 P. 212 (cited). As to admissihility of parol evidence to prove non-revocation of will by mistake, see 48 A. S. 198-202. As to declarations as evidence of will, see 45 A. R. .'?27-34 1; 28 A. S. 361. As to effect of cancelation by mistake, see 48 A. S. 198-202. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to implied revocation of will, see 15 A. D. 659-661. As to revocation by mistake, see 48 A. S. 198-202. As to revocation by obliteration, see 45 A. R. 327-342. As to revocation by third party, see Kerr's Cyc. C. C. § 1293 and note. As to revocation of will, and what acts amount to, see 12 A. D. 377-380; 45 A. R. 327-338; 22 A. S. 344. 362. As to revocation upcjn erroneous assumption of fact, see 48 A. S. 198-202. § 1293. EVITtEXCE OF HEV(M ATI(»\. When a will is canceled or destroyed by any other person than the testator, the direction of the testator, and the fact of such injury or destruction, must be proved by two witnesses. HiMtory: Enacted March 21, 1872, foundt-d upon § 10 Act April 10, 1850, Stats. 1850, p. 178. See Kerr's Cyc. C. C. for 7 pars, annotation. As to execution, revocation, and classes of wills, see note S1270, ante; 2 Church's New Probate Law and Practice, 1514. 1535-1553. As to revocation of will liy third party, si-e 30 Encyc. L. 630. S l'ii»4. HEVOCATION l\\ OllLITEK.VTI(»\ 0\ V Ml. Ol WILL (repealed). IliNlory; Enact.-d Mnrcli 21, 1S72, n-pealed March 30. 1S74. Code Anult.'i. 1S73-4. p. 233. § 1295. «EV(K AT1()\ OF DITLU'ATE. The revocation of a will, executed in duplicate, may be made by revokinir one of the duplicates. History: Enacted March 21. 1S72. 701 §§ 1296-1298 CIVIL CODE. [Div.II,Pt.IV. See Kerr's Cyc. C. C. for 7 pars, annotation. As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Churcli's New Probate Law and Practice, 1514, 1535-1553. § 1296. KEVOCATION BY SUBSEQUENT WILL. A prior will is not revoked by a subsequent will, unless the latter con- tains an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 104 C. 554, 568, 38 P. 543 (construed and applied with other sections). As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. § 1297. AiVTECEDEM NOT REVIVED BY REVOCATION OF SUBSEQUENT WILL. If, after making a will, the testa- tor duly makes and executes a second will, the destruction, cancelation, or revocation of such second will does not revive the first will, unless it appears by the terms of such revoca- tion that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancelation, or revocation, the first will is duly republished. Hi.story: Enacted March 21, 1872, founded upon § 11 Act April 10, 1850, Stats. 1850, p. 178. See Kerr's Cyc. C. C. for 21 pars, annotation. 108 C. 688, 690, 41 P. 771 (construed and applied). As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to revival of one will by revocation of another, see 76 A. D. 652-656. As to revocation of will by subsequent will, and revival of former by destruction of latter, see 37 L. 561-579. §1298. REVOCATION BY MARRIACJE AND BIRTH OF ISSUE. If, after having made a will, the testator marries, 702 Tit.VI,Ch.I.] MARRIAGE AFTER WILL. § 1299 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 revoked, unless [1] provision has been made for such issue by some settlement, or [2] unless such issue are pro- vided for in the will, or [3] in such way mentioned 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. History: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 65 C. 50, 52, 2 P. 741 (construed and applied); 107 C. 1, 7, 40 P. 15, 16, 28 L. 414 (construed and applied). As to execution, revocation, and classes of wills, see note § 1270, ante; 2 Church's New Probate Law and Practice, 1514, 1535-1553. As to revocation of will by marriage and birth of issue, see 15 A. D. 659-661, 28 A. D. 516. 518, 2 Prob. Rep. Ann. 288: 5 L. 346, 7 L. 485, 10 L. 57; see also Kerr's Cyc. C. C. § 1299 and note. §1299. EFFECT OF MAKKIAGE OF A 3IAX ON HIS WILL. If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless [1] provision has been made for her by marriage contract, or [2] unless she is provided for in the will, or [3] in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation must be received. HlHtory: Enacted March 21, 1S72, foundotl upon j 1- AG VARIOUS PARTS. All the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 58 C 387 404 (cited); 94 C. 670, 674, 30 P. 99 (applied); 132 C. 666, 668,' 61 P. 964, 64 P. 1071 (cited); 138 C. 432, 435, 71 P. 512 (cited); 149 C. 200, 206, 85 P. 187 (applied); 1 C. A. 80, 82, 81 P. 752, 753 (applied with other sections); 21 F. 594, 598 (applied — no precatory .trust created when); 127 U. S. 300, 311. 32 L. ed. 138, 8 Sup. Ct. Rep. 1164 (referred to with other SGctions) As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. §1322. IN WHAT CASE DEVISE NOT AFFECTED. A clear and distinct devise or bequest canflot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or refer- ence to its contents in another part of the will. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 73 C 99 103, 14 P. 394, 397 (cited in discussion); 127 C. 90, 97 59 P. 315 (applied); 132 C. 666, 672, 61 P. 964, 64 P. 1071 (con- strued and applied); 140 C. ?82, 289, 73 P. 976, 978 ("devise- denotes a testamentary disposition of land— "legacy" a like dis- position of personalty); 142 C. 1, 7, 75 P. 324 (applied with other sections)- 21 F. 594, .^98 (applied— no precatory trust created when); 127 U. S. 300, 311, 312, 32 L. ed. 138, 8 Sup. Ct. Rep. 1164 (referred to with other sections). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As' to intention of testator, see Kerr's Cyc. C. C. §§ 1317 et seq. and notes. 717 §§ 1323-1325 CIVIL CODE. [Div.II.Pt.IV. § 1323. WHEN AMBIGUOUS OR DOUBTFUL. Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to bequests void for uncertainty, see 44 A. D. 94, 98, 101; 54 A. R. 213, 222. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to extrinsic evidence to explain will, see 50 A. S. 279-284. § 1324. WORDS TAKEN IN ORDINARY SENSE. The words of a will are to be taken in their ordinary and gram- matical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 19 pars, annotation. 58 C. 387, 404 (cited with other section in discussion); 74 C. 365, 368, 16 P. 13, 14 (applied); 123 C. 140, 143, 55 P. 681 (applied); 132 C. 666, 671, 61 P. 964, 64 P. 1071 (construed and applied); 141 C. 295, 300, 74 P. 846 (applied — earlier English rule stated); 1 C. A. 524, 527, 82 P. 549 (applied with § 1325); 4 C. A. 162, 165, 87 P. 417 (applied with other sections); 21 F. 594, 598 (applied — no precatory trust created when); 127 U. S. 300, -311, 312, 32 L. ed. 138, 143, 8 Sup. Ct. Rep. 1164 (referred to with other sections). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to construction of words and expressions in wills, see 8 L. 740; 10 L. 816. As to what property passes by the word "goods," see 1 A. D. 294. As to what words vest an estate in married woman to exclu- sion of husband, see 39 A. D. 773. As to what words will pass real estate, see 14 A. D. 576. §1325. WORDS TO RECEIVE AN OPERATITE CON- STRUCTION. The words of a will are to receive an interpre- tation which will give to every expression some effect, rather than one which will render any of the expressions inopera- tive. Jlistorys ^n^-cted March 21, 1872. 718 Tit.VI.ch.II.] INTESTACY— AVOIDING. §§ 1326. 1327 See Kerr's Cyc. C. C. for 5 pars, annotation. 58 C. 387, 404 (cited with other sections in discussion); 99 C. 645, 648, 34 P. 513 (applied); 132 C. 173, 177, 64 P. 268 (applied); 142 C. 373, 375. 75 P. 1086 (applied with other sections); 1 C. A. 80, 82, 81 P. 752 (applied with other sections — certain uses of words seem to be beyond absolute and unvarying definition — among: these are precatory words); 1 C. A. 524, 527, 528, 82 P. 549 (applied with other sections); 4 C. A. 162. 165, 87 P. 417 (applied with other sections); 127 U. S. 300. 311, 312, 32 L. ed. 138. 143. 8 Sup. Ct. Rep. 1164 (referred to with other sections). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. § 1326. IMESTACY TO BE AVOIDED. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy. Hitttory: Enacted March 21, 1872; amended by Code Commis- sion. Act Marcli 16, 1901, Stats, and Amdts. 1900-1. p. 403, held unconstitutional, see history. § 4 ante. See Kerr's Cyc. C. C. for 7 pars, annotation. 104 C. 554. 568. 38 P. 643 (applied); 123 C. 140, 143, 55 P. 681 (applied); 123 C. 337, 343, 344, 55 P. 1011 (applied); 132 C. 523, 566, 60 P. 442, 64 P. 1000 (applied); 139 C. 682, 686, 73 P. 606 (applied with other sections); 142 C. 373. 375. 75 P. 1086 (effect of false description of land in will); 145 C. 82, 86, 10 A. S. 17, 78 P. 340 (applied to holographic will); 147 C. 148, 153. 81 P. 406 (applied to residuary clauses). As to construction and interpretation of wills, see note $ 1317, ante; 2 Church's New Probate Law and Practice. 1554, 1566-1579. §1327. EFFECT OF TE( IIMCAL WORDS. Technical woi'd.s in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such techni- cal sense. HlMtory: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 403, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905. p. 606. See Kerr's Cyc. C. C. for 2 pars, annotation. 74 C. 365, 368, 16 P. 13. 14 (applied). As to construction and interpretation of wills, see note § 1317. ante; 2 Church's New Probate Law and Practice. 1554, 1566-1579. 719 §§ 1328-1330 CIVIL CODE. [Div.II,Pt.IV. § 1328. TECHNICAL WOEDS NOT NECESSARY. Techni- cal words are not necessary to give effect to any species of disposition by a will. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for- 2 pars, annotation. 127 U. S. 300, 311, 312, 32 L. ed. 138, 143, 8 Sup. Ct. Rep. 1164 (referred to with other sections). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. § 1329. CERTAIN WORDS NOT NECESSARY TO PASS A FEE. The term "heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. Hi-story: Enacted March 21, 1872. 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testament- ary disposition of land — "legacy" a like disposition of personalty). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to meaning of "children," see 8 L. 740. As to meaning of "issue," see notes 4 L. 117; 11 L. 305. As to meaning of "next of kin," see 15 L. 300. As to meaning of word "heirs," see 2 L. 457; 8 L. 740; 12 L. 721. Construction of word "heirs." — See post § 1334. Words of inheritance or succession not necessary to pass a fee. — See ante § 1072. §1330. POWER TO DEVISE, HOW EXECUTED BY TERMS OF WILL. Real or personal property embraced in a power to devise, passes by a will purporting to devise all the real or personal property of the testator. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 107 C. 587, 598, 40 P. 810 (applied); 132 C. 523, 558, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed and applied); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty); 145 C. 344, 346, 78 P. 874 (referred to). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. 720 Tit.VI.Ch.TI.] DEVISE OR BEQUEST. §§ 1.031^ 1332 §1331. DEVISE OR KEQUEST OF ALL REAL OR ALL PERSONAL PROPERTY, OR BOTH. A devise or bequest of all the testators' real or personal property, in express terms, or in any other terms denoting his intent to dispose of all his real or personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. HlHtory: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 7 pars, annotation. 81 C. 240, 242, 22 P. 655, 656, (applied); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary di.sposition of land— "legacy" a like disposition of personalty); 188 U. S. 291, 296» 47 L. ed. 480, 482 (repeal of section referred to). As to general and specific legacies, see Kerr's Cyc. C. C. § 1357 and note. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. Effect of conveyance of property previously disposed of by will. — See Kerr's Cyc. C. C. § 1303 and note. Estate passing by devise of land. — See Kerr's Cyc. C. C. § 1311 and note. Passing of after-acquired title, — See Kerr's Cyc. C. C. §1312 and note. § 1332. RESIDUARY CLAUSES. A devise of the residue of the testator's real property passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 234. See Kerr's Cyc. C. C. for 11 pars, annotation. 107 C. 410, 416, 40 P. 552 (applied); 127 C. 90, 92, 59 P. 315 (construed and applied); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty); 142 C. 1, 7, 75 P. 324 (residuary clauses to be given a broad interpretation); 147 C. 148, 152, 81 P. 406 (not limited how); 150 C. 498, 505, 89 P. 98 (construed with § 1312 — statute makes will speak as of time of testator's death, and has effect of permitting devises to be general, at least as to after-acquired property); 150 C. 604, 605, 89 P. 345 (this section abrogates earlier common-law-rule which made a dis- 721 §§ 1333, 1334 CIVIL CODE. [Div.II.Pt.IV. tinction between devises of real property and , bequests of per- sonal property). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to what passes under residuary clause, see notes, 5 L. 104; 9 L. 200. Residuary legacy defined. — See Kerr's Cyc. C. C. § 1357 subd. 4 and note. §1333. SAME. [BEQUEST OF RESIDUE, EFFECT.] A bequest of the residue of the testator's personal property, passes all the personal property which he was entitled to bequeath at the time of his death, not otherwise effectually bequeathed by his will. History: Enacted March 21, 1872, amended March 30, 1874, Code Amdts. 1873-4, p. 234. 107 C. 410, 416, 40 P. 552 (cited); 127 C. 90, 92, 59 P. 315 (con- strued in connection with §1333); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty) ; 142 C. 1, 6, 7, 75 P. 324 (construed and applied, with other sections, to separate property of testator). See Kerr's Cyc. C. C. § 1332 and note. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. §1334. "HEIRS," "RELATIVES," "ISSUE," "DESCEND- ANTS," ETC. A testamentary disposition to "heirs," "rela- tions," "nearest relations," "representatives," "legal repre- sentatives," or "personal representatives," or "family," "issue," "descendants," "nearest" or "next of kin," of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person, according to the provisions of the title on succession, in this code. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. 40 P. 35 (applied). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. 722 Tit.VI,ch.[I.] WORDS OF DONATION. ETC. §§1335-1337 §1335. WOKDS OF I)0\ATIO\ AM> OF LIMFTATIO.V. The terms mentioned in the last section are used as words of donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualifica- tion of an estate given to the ancestor of such person. IllMlory: Knactod Marcli 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's Now Probate Law and Practice, 1554, 1566-1579. § 1336. TO >VHAT TIME WORDS REFEK. Words in a will referring to death or survivorship, simply, relate to the time of the testator's death, unless possession is actually postponed, when they must be referred to the time of posses- sion. IILstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 114 C. 186, 190, 45 P. 1063 (construed and applied): 149 C. 146, 150, 85 P. 308, 9 A. C. 1143 (same rule exists irrespective of statute); 152 C. 753, 759, 93 P. 1012. 1015 (applied). As to construction and interpretation of wills, see note § 1317, ante; 2 Churcli's New Probate .Law and Practice, 1554. 1566-1579. As to time to whicli bequest relates, see 9 L. 211. § 1337. DEVISE OR REQUEST TO A (LASS. A testa- mentary disposition to a class includes every person answer- ing the description at the testator's death; but when the pos- session is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed. lllMtory: Enacted Marcli 21. 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. As to construction and interpretation of wills, see note S 1317. ante; 2 Church's New Probate Law and Practice, 1554, 1666-1579. 79 C. 613, 625, 22 P. 50 (applied); 119 C. 406, 410, 51 P. 629 (applied); 132 C. 523. 578. 60 P. 442. 64 P. 1000 (applied). As to posthumous children, see Kerr's Cyc. C. C. $ 1339 and note. 723 §§ 1338-1340 CIVIL CODE. [Div.II.Pt.IV. §1338. WHEN CONVEESION TAKES EFFECT. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal prop- erty from the time of the testator's death. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. Ill C. 628, 638, 44 P. 225 (section does not stand in way of action for partition of land distributed to trustees) ; 143 C. 265, 270, 101 A. S. 118, 76 P. 1020 (construed and applied); 144 C. 121, 127, 77 P. 825 (construed and applied). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. §1339. WHEN CHILD BORN AFTER TESTATOR'S DEATH TAKES UNDER WILL. A child conceived before, but not born until after a testator's death, or any other period when a disposition to a class vests in right or in pos- session, takes, if answering to the description of the class. History: Enacted March 21, 1872. See Kerr's Cyc. C. G. for 3 pars, annotation. 132 C. 523, 580, 84 A. S. 70, 60 P. 442, 64 P. 1000 (cited with § 29 in discussion). As to construction and interpretg.tion of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to provision in will for after-born children, see 15 A. S. 592. Rights of child born after making will. — See Kerr's Cyc. C. C. § 1306 and note. Rights of child conceived but not yet born. — See Kerr's Cyc. C. C. § 29 and note. §1340. MISTAKES AND OMISSIONS. When, applying a will, it is found that there is an imperfect description, or that no person or pi-operty exactly answers the description, mis- takes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the testator as to his inten- tions cannot be received. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 108 C. 627, 659, 49 A. S. 97, 41 P. 772 (cited with § 1318 in 724 TitVI.Ch.II.] DEVISE VESTS WHEN. § 1341 discussion); 119 C. 571, 575, 51 P. 860, 39 L. 689 (construed and applied); 123 C. 337, 340, 341, 55 P. 1011 (applied); 127 C. 90, 94, 59 P. 315 (applied); 142 C. 373, 374, 376, 75 P. 1086 (extrinsic evidence cannot aid will which is hopelessly uncertain); 151 C. 181, 184, 185, 90 P. 448 (distinction as to intention — testator's positive instructions to his attorney, in the very performance of testamentary act, may be received in evidence without violating this section). As to admissibility of declarations of testator, see 59 A. R. 399. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to correction of mistakes in wills, see 40 A. R. 292. As to parol evidence to explain or identify subject of beneficiary will, see 8 A. R. 669-673. When will lost, spoliated, or destroyed after death. — See 5 Prob. Rep. Ann. 553. § 1341. WIIEX DEVISES AND HEQIESTS VEST. Testa- mentary dispositions, including devises and bequests to a per- son on attaining majority, are presumed to vest at the testa- tor's death. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 23 pars, annotation. 73 C. 99, 102, 14 P. 394, 396 (applied); 122 C. 626. 627. 55 P. 595 (applied); 132 C. 523, 578, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed and applied); 137 C. 354, 355, 70 P. 459 (applied); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty); 149 C. 712, 717, 87 P. 573 (property of decedent vests wlien and how); 2 C. A. 468, 475, 83 P. 577 (trustee under will takes at death of testator). As to construction and interiirolation of wills, .see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to vesting of estates under wills, see 1 L. 551; 3 L. 816; 9 L. 211. As to vesting of legacy notwitlistanding failure to perforin conditions, see 78 A. D. 234. As to vesting of legacies — When vested and when contingent. —See 10 A. S. 471. As to when legacies are vested and contingent, see 37 A. S. 147. Future estate not defeated by determination of precedent estate. — See ante § 742. Limitations which may be put upon future estates. — See Kerr's Cyc. C. C. § 767 and note. Rights of child conceived before but born after testator's death. — See Kerr's Cyc. C. C. § 1339 and note. 725 §§ 1342-1344 CIVIL CODE. [Div.II,Pt.IV. Rig-hts of children born after making of will. — See Kerr's Cyc. C. C. § 1306 and note, and § 29 and note. Vesting of devise or legacy depending on condition precedent. — See Kerr's Cyc. C. C. § 1347 and note. § 1342. >VHEX CANNOT BE DEVESTED. A testamentary disposition, when vested, cannot be devested unless upon the occurrence of the precise contingency prescribed by the testa- tor for that purpose. History: Enacted March 21, 1872. § 1343. DEATH OF DEVISEE OB LEGATEE. If a devisee or legatee dies during the lifetime of the testator, the testa- mentary disposition to him fails, unless an intention appears to substitute some other in his place, except as provided in section thirteen hundred and ten. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 234; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 403, held unconstitu- tional, see history, § 4 ante. See Kerr's Cyc. C. C. for 7 pars, annotation. 98 C. 603, 606, 33 P. 451, 453 (applied); 134 C. 320, 324, 66 P. 370 (construed); 139 C. 87, 89, 72 P. 827 (construed); 140 C. 282, 289, 290, 73 P. 976, 978 (construed — comments upon use of terms "devise", "legatee", etc.). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to effect of death of devisees before testator, see 94 A. D. 156. As to lapse of devise or bequest by death of beneficiary before testator, see 28 A. S. 360. § 1344. INTERESTS IN REMAINDER ARE NOT AF- FECTED. The death of a devisee or legatee of a limited interest before the testator's (Jeath does not defeat the inter- ests of persons in remainder, who survive the testator. History: Enacted March 21, 1872. See Kerr's Cj'c. C. C. for 2 pars, annotation. 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty). 726 Tit.VI.ch.II.] CONDITIONS. §§ 1345-1347 As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice. 1554, 1566-1579. § 1345. CONDITIONAL DEVISES AND BEQUESTS. A con- ditional disposition is one which depends upon the occurrence of some uncertain event, by whicli it is either to take effect or be defeated. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 5 pars, annotation. 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty). As to conditions in will preventing legatee from contesting will upon pain of forfeiture, see 60 A. D. 113. As to conditional obligation, see Kerr's Cyc. C. C. §§ 1434 et seq. and notes. As to conditions of ownership, see Kerr's Cyc. C. C. §§ 707 et seq. and notes. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to distinction between words of limitation and condition, see 9 L. 165. As to occurrences of contingencies, see 10 L. 816. As to validity of conditions in devises and bequests, see Kerr's Cyc. C. C. § 1281 and note. § 1346. CONDITION PRECEDENT, ^VHAT. A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect. History: Enacted March 21, 1872. As to certain conditions precedent being void, see Kerr's Cyc. C. C. § 709 and note. As to conditions precedent, see 1 L. 837; 9 L. 165. As to construction and interpretation of wills, see note § 1317. ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. § 1347. EFFECT OF CONDITION PRECEDENT. Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where such fulfilment is impossible, in which case the disposition vests, unless the condition was the sole motive thereof, and 727 §§ 1348-1350 CIVIL CODE. [Div.II,Pt.IV. the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will. History: Enacted March 21, 1S72. As to conditions precedent and subsequent in wills, and impossibility of performance, see 70 A. S. 833 et seq. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. §1348. CONDITIONS PRECEDENT, WHEN DEEMED PERFORMED. A condition precedent in a will is to be deemed performed when the testator's intention has been sub- stantially, though not literally, complied with. History: Enacted March 21, 1872. § 1349. CONDITIONS SUBSEQUENT, WHAT. A condition subsequent is where an estate or interest is so given as to vest immediately, subject only to be devested by some subse- quent act or event. History:. Enacted March 21, 1872. As to conditions subsequent, see 1 L. 837; 9 L. 165. As to conditions subsequent in will; impossibility of per- formance, see Kerr's Cyc. C. C. §§ 707, 708 and notes; 70 A. S. 833 et seq. As to conditions in wills in restraint of marriage, see 1 L. 837. As to devise during widowhood, see 1 L. 432; 9 L. 573. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. § 1350. DEVISEES, ETC., TAKE AS TENANTS IN COM- MON. A devise or legacy given to more than one person vests in them as owners in common. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty); 141 C. 432, 434, 75 P. 53 (construed and applied). As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. As to estates in common, see Kerr's Cyc. C. C. §§ 685, 686 and notes. 728 Tit.VI,ch.II.] ADVANCEMENTS. § 1351 §1351. ADVANCEMENTS, WHEN ADEMPTIONS. Ad- vancements or gifts are not to be taken as ademptions of gen- eral legacies, unless such intention is expressed by the testa- tor in writing. History: Enacted March 21, 1872. . See Kerr's Cyc. C. C. for G pars, annotation. As to ademption by advancement, see 95 A. S. 344. As to ademption of legacies, see 11 A. D. 470; 37 A. D. 667; 1 L. 203. As to advancement in cases of intestacy, see Kerr's Cyc. C. C. §§ 1395-1399 and notes. As to construction and interpretation of wills, see note § 1317, ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579. 729 § 1357 CIVIL CODE. [Div.II.Pt.IV. CHAPTER III. GENERAL PROVISIONS. § 1357. Nature and designations of legacies: ,..1. Specific. [Legacy.] 2. Demonstrative. [Legacy.] 3. Annuities. 4. Residuary. [Legacy.] 5. General. [Legacy.] § 1358. Estates chargeable. § 1359. Order of resort to estate for debts. § 1360. Same. [For legacies.] § 1361. Same. fLegacies to kindred.] § 1362. Abatement. § 1363. Specific devises and legacies. § 1364. Heir's conveyance good, unless will is proved within four years. § 1365. Possession of legatees. § 1366. Bequest of interest. § 1367. Satisfaction. § 1368. Legacies, when due. § 1369. Interest. § 1370. Construction of these rules. § 1371. Executor according to the tenor. § 1372. Power to appoint is invalid. § 1373. Executor not to act till qualified. § 1374. Provisions as to revocations. § 1375. Execution and construction of prior wills not affected. § 1376. Law governing validity and interpretation of wills. § 1377. Liability of beneficiaries for testator's obligations. §1357. NATURE AND DESIGNATION OF LEGACIES. Legacies are distinguished and designated, according to tlieir nature, as follows: 1. [Specific legacy.] A legacy of a particular thing, speci- fied and distinguished from all others of the same kind belong- ing to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator; 2. [Demonstratire lej^acj.] A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or property 730 Tit.VI.Ch.III.] PASSING AND VESTING. § 1357 fails, in whole or in part, resort may be had to the general assets, as in case of a general legacy; 3. [Aniniities.] An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy; 4. [Residuary legacy.] A residuary legacy embraces only that which remains after all the bequests of the will are dis- charged ; 5. [General legacy.] All other legacies are general lega- cies. HLstory: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 31 pars, annotation. 66 C. 330, 331, 332, 5 P. 507, 508 (cited); 66 C. 432, 437, 439, 440, 6 P. 7, 11, 12, 13 (construed); 107 C. 303, 308, 40 P. 558 (con- strued); 112 C. 521, 526, 53 A. S. 224, 44 P. 808 (construed); 119 C. 131, 136, 51 P. 44 (cited); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like dis- position of personalty); 143 C. 450, 453, 77 P. 160 (cited); 145 C. lis, 121, 78 P. 369 (referred to); 150 C. 498, 503, 504, 505, 89 P. 98 (construed with §§ 1358, 1359, 1360, 1362 — specific devises and specific legacies are free from any contribution to payment of general legacies — question wliether testamentary gift is specific or general, how determined). PROPERTY PASSING BY WILL — VESTING OF INTEREST. As to generally, see 2 Churcli's New Probate I^aw and Practice 1580, 1588-1610. Abatement — Of legacies, order of as between demonstrative legacies and specific legacies, to pay debts. — See 4 L. N. S. 922. Same — Same — In case of deficiency of assets. — See 8 A. S. 720. Accumulations. — See Kerr's Cyc. C. C. §§ 722-726 and notes; 2 Church's New Probate Law and Practice 1601; also note §722, ante. Advancements to heirs, doctrine of. — See 12 L. 566. After-acquired property passes with will. — See Kerr's Cyc. C. C. § 1312 and note; 2 Churcli's New Probate Law and Prac- tice 1602. Annuities. — See Kerr's Cyc. C. C. § 1368 and note; 2 Church's New Probate Law and Practice 1601 Beneficiaries — Liable for testator's obligations. — See Kerr's Cyc. C. C. § 1377 and note. Same — Of benefit certificate. — See 2 Church's New Probate Law and Practice 1601. 731 § 1357 CIVIL CODE. [Div.II,Pt.IV. Bequest — As to, generally, see "Devises and bequests", this note. Same — Of interest or income of a certain fund, income accru- ing- thereon from testator's death. — See Kerr's Cyc. C. C. § 1366 and note. Same — Of stocks, bonds or notes, general or specific. — See 11 L. N. S. 49-87. Same-^To class — As to generally, see 'Kerr's Cyc. C. C. § 1337 and note. Same — Same — As including persons dead before making of will. — See 5 A. C. 243. Same — Same — Riglit of representatives of pre-deceased child to share in. — See 2 A. C. 643. Capacity to take by will. — See Kerr's Cyc. C. C. § 1275 and note. Class — Bequest to as including persons dead before making of will.— See 5 A. C. 243. Same — Devise or bequest to— As to generally, see Kerr's Cyc. C. C. §1337 and note. Common law distinctions abrogated. — See 2 Church's New Probate Law and Practice 1591. Community property — Extent to which may be disposed of by will. — See 2 Church's New Probate Law and Practice 1602. Condition subsequent in will. — See Kerr's Cyc. C. C. § 1349 and notes; 70 A. S. 83; 9 L. 165; 9 L. 573; 31 L. 432; 31 L. 837. Conditional and contingent devises — As to, generally, see Kerr's Cyc. C. C. §§1346-1348 and notes, §1345 and note; 2 Church's New Probate Law and Practice 1600; 8 A. C. 1150. Same — Words merely declaratory of purpose or consideration of devises as creating. — See 3 A. C. 38. Construction, validity and effect of devises and legacies. — See 2 L. 175; 10 L. 816; 11 L. 185; also note § 1317 ante. Contribution among legatees to pay debts. — See Kerr's Cyc. C. C. § 1364 and note. Conversion — Of property. — See 2 Obiter Dig. 984. Same — Of real property into money, effect of, when directed to be made by the will. — See Kerr's Cyc. C. C. § 1338 and note. Corporation — Capacity to take by will. — See 18 A. D. 541; 80 A. D. 315; 2 Prob. Rep. Ann. 674; see also "Municipal corpora- tions", this note. Same — Right to contest power to take and hold. — See 60 A. S. 318, 321; 32 L. 293. Same — Same — In excess of charter authority. — See 9 L. N. S. 689. Creditor as legatee. — See 2 Church's New Probate Law and Practice 1600. Cumulative legacies. — See 2 Church's New Probate Law and Practice 1593. 732 Tit. VI, Ch. III.] PASSING AND VESTING. §1357 Debts of decedent — Contribution among legatees to pay. — See Kerr's Cyc. C. C. § 1364 and note. Same — Entire estate chargeable with, except otherwise pro- vided. — See Kerr's Cyc. C. C. § 1358 and note. Same — Liability of beneficiaries for. — See Kerr's Cyc. C. C. §1377 and note. Same — Order of resort to estate for. — See Kerr's Cyc. C. C. § 1359 and note. Same — Provision by will for payment of, effect of, when insuf- ficient. — See Kerr's Cyc. C. C. § 1362 and note. Demonstrative legacies. — See 2 Church's New Probate Law and Practice 1593. Devise — Or bequest of all real or personal property, or both — What passes by. — See Kerr's Cyc. C. C. § 1331 and note. Same — Over, of life estate with power of disposition, validity and effect of. — See 7 A. C. 953. Same — To unnamed he^rs. — See 2 Church's New Probate I^aw and Practice 1592; 80 A. D. 314. Devisee of life estate — Power to sell. — See 2 Church's New Probate Law and Practice 1595; 7 A. C. 953. Devises and bequests — As to generally, see 2 Church's New Probate Law and Practice 1589. Same — As to tlie meaning of certain words used in devise or bequest. — See Kerr's Cyc. C. C. §1329 and note; 2 Church's New Probate Law and Practice 1590; 3 A. C. 420. Same — As to wills, legacies, and devises generally, see note § 1270, ante. Same — Advancements to heirs. — See 12 L. 566, 570. Same — Bequest to a class, as including persons dead before making of w^ill. — See 5 A. C. 243. Same — Capacity — Of corporation to take by will. — See 18 A. D. 541. 80 A. D. 315; 60 A. S. 318; 32 L. 293; 9 L. N. S. GS9; 2 Prob. Rep. Ann. 674-679. Same — Same — To take by will. — See Kerr's Cyc. C. C. §1275 and note. Same — Class, devise or bequest to. — See Kerr's Cyc. C. C. § 1337 and note. Same — Common law distinctions abrogated. — See 2 Oluircli's New Probate Law and Practice 1591. Same — Construction, validity and effect of devise and legacies. — See 2 L. 175; 10 L. 816; 11 L. 185; also note § 1317 ante. Same — Conversion of real proi)erty into money, effect of when directed to be made by the will. — See Kerr's Cyc. C. C. § 1338 and note. Same — Devise of land, profits, income, etc. — Estate passes by. —See 9 A. C. 247. Same — Devise or bequest of real or personal property, or both — What passes by. — See Kerr's Cyc. C. C. §1331 and note. 733 § 1357 CIVIL CODE. [Div.II,Pt.IV. Same — Devise to corporation. — ^See 18 A. D. 541; 80 A. D. 315. Same — Devises to unnamed heir. — See 2 Church's New Probate Law and Practice 1592; 80 A. D. 314. Same — Executor may purchase legacy. — See 2 Cliurcli's New Probate Law and Practice 1591. Same — Land, devise of, how construed,— See Kerr's Cyc. C. C. § 1311 and note; also note § 1317, ante. Same— -Legacies — Controlled by testator's intention. — See Kerr's Cyc. C. C. § 1370 and note. Same — Same — Specific, demonstrative, annuities, residuary and general — As to, see Kerr's Cyc. C. C. § 1357 and note. Same — Municipal corporation as devisee or legatee. — See 4 Prob. Rep. Ann. 113. Same — Particular description as a limitation. — See 2 Church's New Probate Law and Practice 1591. Same — Power to devise, how executed under the will. — See Kerr's Cyc. C. C. § 1330 and note. Same — Shares of stock appurtenant to land. — See 2 Church's New Probate Law and Practice 1592. Same — Substitution of land for legacy, election. — See Kerr's Cyc. C. C. § 1338 and note; 2 Church's New Probate Law and Practice 1591. Same — Witnesses as devisees, when gift to void. — See Kerr's Cyc. C. C. §§ 1282, 1283 and notes. Distinction between annuity and legacy for life, as respects commencement. — See Kerr's Cyc. C. C. § 1368 and note. Election by widow — As to, generally, see 2 Church's New Probate Law and Practice 1603. Same — By acceptance of devise. — See 2 Church's New Probate Law and Practice 1605. Same — By acts in pais. — -See 2 Church's New Probate Law and Practice 1605. Same — Death of before, effect of. — See 2 L. N. S. 959. Same — Effect of. — See 2 Church's New Probate Law and Prac- tice 1604. Same — Same — On administration. — See 4 L. N. S. 1065. Same — Right of creditors of personal representatives to make or control for or against will, or between different provisions of will or statute. — See 11 L. N. S. 379. Same — Rule as to, between inconsistent rights. — See 12 L. 227. Same — Taking bond by descent and under will. — See 2 Church's New Probate Law and Practice 1604. Same — To take under will. — ^See 7 L. 454. Same — Under mistake and misapprehension. — See 2 Church's New Probate Law and Practice 1605. Estate of testator cliargeable with debts, except where other- wise provided. — See Kerr's Cyc. C. C. § 1356 and note. 734 Tit.VI.ch.III.] PASSING AND VESTING. § 1357 General legacies. — See 2 Church's New ProVjate Law and Practice 1592. Gifts — When payable out of residuum. — See 2 Church's New Probate Law and Practice 1597. Gifts causa mortis — Altered circumstances. — See 2 Church's New Probate Law and Practice 1609. Same — Contingent remainder. — See 2 Church's New Probate Law and Practice 1608. Same — Distinguished. — See Kerr's Cyc. C. C. § 1367 and note; also note § 1270 ante; 2 Church's New Probate Law and Prac- tice 1607. Same — Lapsed legacies and devises. — See Kerr's Cyc. C. C. § 1343 and notes; 2 Church's New Probate Law and Practice 1608. Intestacy as to residuum. — See 2 Church's New Probate Law and Practice 1596. Lands — Devises of, how construed. — See Kerr's Cyc. C. C. S 1311 and note; also note § 1317 ante. Same — Profits, income, etc, of land — Estate passing l>y dovise of.— See 9 A. C. 247. Legacies — Abatement of in case of deficiency of assets. — See 8 A. S. 720. Same — Application of to payment of debts. — See 2 Church's New Probate Law and Practice 1599. Same — Same — Order of abatement, as between demonstrative legacies and specific legacies. — See 4 L. N. S. 922. Same — Control by testator's intention. — See Kerr's Cyc. C. C. § 1370 and note; also § 1317 ante. Same — Specific, demonstrative. annuities, residuary and general — As to. — See Kerr's Cyc. C. C. S 1357 and note. Life estates — As to, generally, see 2 Cliurch's New Probate I^w and Practice 1594. Same — Life tenant purchasing outstanding title. — See 2 Church's New Probate Law and Practice 1594. Same — Power of devisee to sell. — See 2 Church's New Probate Law and Practice 1595; 7 A. C. 953. Same — Residuary devise of. — See 2 Church's NfW Probate Law and Practice 1596. Life tenant purchasing outstanding title, elTcct of. — See 2 Cliurch's New Prol)ato Law and I'ractice 1594. Meaning of certain words used in wills. — See Kerr's Cyc. C. C. § 1329 and note; 2 Church's New Probate Law and Practice 1590; 4 A. C. 420. Municipal corporations as legatees or devisees. — See 4 Prob. Hop. Ann. 113; see also "Corporations", this note. Operation of wills. — See 2 Obiter Dig. 963. Particular description as a limitation. — Sec 2 Cliurch's New Probate Law and Practice 1591. 735 § 1357 CIVIL CODE. [Div.II.Pt.IV. Payment of legacies — As to, generally, see 2 Church's New Probate Law and Practice 1597. Same — Ademption and abatement of. — See Kerr's Cyc. C. C. § 1351 and note; 2 Church's New Probate Law and Practice 1599; 37 A. D. 667; 95 A. S. 342. Same — Same — Of any one of a class. — See Kerr's Cyc. C. C. § 1632 and note. Same-T-rBond by legatee. — See 2 Church's New Probate Law and Practice 1599. Same — Interest on. — See Kerr's Cyc. C. C. § 1369 and note; 2 Church's New Probate Law and Practice 1598; 53 A. S. 224. Same — Order of resort to property of testator for payment of. —See Kerr's Cyc. C. C. §§ 1360, 1361 and notes. Same — Out of residuum. — See 2 Church's New Probate Law and Practice 1597. Same — When due and deliverable. — See Kerr's Cyc. C. C. § 1368 and note. Power to devise, how executed under the will. — See Kerr's Cyc. C. C. § 1330 and note; also note § 1270, ante. Predeceased child — Right of representative of to share in remainder given to children as a class. — See 2 A. C. 645. Preferred legacies. — See 2 Church's New Probate Law and Practice 1600. Residuary clauses in wills. — See Kerr's Cyc. C. C. §§ 1332, 1333 and notes. Residuary devise of estate for life. — See 2 Church's New Pro- bate Law and Practice 1596. Residuary legacies — As to, generally, see Kerr's Cyc. C. C. §§1332, 1333; 2 Church's New Probate Law and Practice 1595; 2 A. C. 645. Same — Gifts, when payable out of residuum. — See 2 Church's New Probate Law and Practice 1597. Same — Intestacy as to residuant. — See 2 Church's New Pro- bate Law and Practice 1596. Same — Residuary devise of life estate. — See 2 Church's New Probate Law and Practice 1596. Same — Residuum of lands under undelivered deeds. — See 2 Church's New Probate Law and Practice 1597. Same — Revocation of by gift of particular estate of interest. —See 5 A. C. 789. Same — Where life estate is specifically bequeathed. — See 2 Church's New Probate Law and Practice 1597. Revocation of testamentary gift of particular estate or inter- est as a revocation of remainder or limitation over. — See 5 A. C. 789. Specific legacies — As to, generally, see 2 Church's New Pro- bate Law and Practice 1592., Same — For life, delivery of inventory of property to second legatee. — See Kerr's Cyc. C. C. § 1365 and note. 736 Tit.VI.Ch.lll.] CHARGES— RESORT. §§1358,1359 Substitution of land for legacy, election. — See 2 Cliurclis Now Probate I>aw and Practice 1591. Title to specific devises and legacies passes by will, possession only in personal representative. — See Kerr's Cyc. C. C. § 1363 and note. Vesting and divesting of estates — As to, generally, see 2 Church's New Probate I^aw and Practice 1606. Same — As to expectancies, see 2 Church's New Probate l^w and Practice 1607. Same — Gifts inter vivos distinguished. — See 2 Churths New Probate Law and Practice 1607. Witnesses as devisees, when gift to void. — See Kcrrs Cyc. C. C. §S 1282, 1283 and notes. § 1358. ESTATES CHARGE.VBLK. When a person dies intestate, all his property, real and personal, without any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in this code and the Code of Civil Procedure. IliMtory: Enacted March 21. 1872; amended March 30, 1871. Code Amdts. 1873-4, p. 234. See Kerr's Cyc. C. C. for 17 pars, annotation. 66 C 432, 439. 6 P. 7 (cited): 67 C. 637, 639. S P. 497 (cit.d in connection with C. C. P. § 1516): 150 C. 498, 505, 89 P. 98 (cited). As to property passing by will, and vesting of interests, see note §1357, ante: 2 Church's New Probate Law and Practice. 1580, 1588-1610. "Debts" — What constitute.— See Kerr's Cyc. C. C. P. SS144S. 1467, 1494, 1497, ir>10, 1643 and notes. § 1359. OHDKH 01 IJKSOUT TO ESTATE FOH DEBTS. The property of a testator, except as otherwise specially pro- vided in this code and the Code of Civil Procedure, must be resorted to for the payment of debts, in the following order: 1. The property which is expressly api)ropriated by the will for the payment of the debts; 2. Property not disposed of by the will; 3. Property which is devised or bequeathed (n a residiiary legatee ; 4. Property which is not si)ecilically dcxi^-fii .n luMiueatlied ; and, 5. All other property ratably. Before any debts are paid, Kerr's C. C. — 24 "737 § 1360 CIVIL CODE. [Div.II,Pt.IV. the expenses of the administration, and the allowance to the family, must be paid or provided for. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 234-235. See Kerr's Cyc. C. C. for 17 pars, annotation. 66 C. 330,' 331, 5 P. 507 (referred to); 66 C. 432, 439, 440, 6 P. 7 (cited); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testa- mentary disposition of land — "legacy" a like disposition of per- sonalty) ; 142 C. 453, 456 (citing- § 1360 erroneously instead of this section), 76 P. 41 (citing this section); 145 C. 508, 509, 510, 78 P. 1058 (referred to); 150 C. 498, 504, 505, 89 P. 98 (liability of property of decedents for payment of debts and legacies) ; 1 C. A. 524, 525, 527, 528, 82 P. 549 (construed with § 1360— order of resort to property for payment of expenses of administration, debts, or legacies). As to property passing by will, and vesting of Interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. Abatement between legacies and devises. — See Kerr's Cyc. C. C. § 1362 and note. Direction in will for payment of debts. — See Kerr's Cyc. C. C. § 1377 and note. Election of widow not to take under will. — See Kerr's Cyc. C. C. § 1377 and note par. 5: also 11 Encyc. L. 81. § 1360. SAME. [FOR LEGACIES.] The property of a tes- tator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of legacies, in the following order: 1. The property which is expressly appropriated by the will for the payment of the legacies. 2. Property not disposed of by the will. 3. Property which is devised or bequeathed to a residuary legatee. 4. Property which is specifically devised or bequeathed. Htstory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 235. See Kerr's Cyc. C. C. for 20 pars, annotation. 66 C. 330, 331, 332, 5 P. 507, 508 (construed); 66 C. 432, 438, 439, 440, 6 P. 7 (referred to); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty); 142 C. 453, 456 (citing this 738 Tit.VI.ch.III.] ORDER OF RESORT. §§ 13G1, 1362 section erroneously instead of §1359), 76 P. 41 (citing §1359; 149 C. 552, 554, 86 P. 1107 (unconditional legacy, payable gener- ally, must be paid how); 150 C. 498, 504, 505, 89 P. 98 (liability of property of decedents for payment of debts); 1 C. A. 524, 525, 527, 528, 82 P. 549 (construed with §1359 — order of resort to property for payment of expenses of administration, debts, or legacies). As to charging devisee witli compound interest, see Kerr's Cyc. C. C. § 1369 and note par. 5. As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. As to residuary legacies, see Kerr's Cyc. C. C. § 1357 and note pars. 24, 25. Abatement between legacies and devises. — See Kerr's Cj'C. C. C. § 1362 and note. "Residuary clause" defined. — See Kerr's Cyc. C. C. § 1359 and note par. 14. Sale of assets for payment of legacies. — See Kerr's Cyc. C. C. § 1377 and note par. 10. § 1361. SAME. [LEGACIES TO KINDRED.] Legacies to husband, widow, or kindred of any class are cliargeable only after legacies to persons not related to the testator. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 66 C. 432, 438, 439, 441, 6 P. 7 (construed). As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. § 1362. ABATEMENT. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. History : Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 66 C. 330, 331, 5 P. 507, 508 (construed and appliid); 66 C. 432, 437, 438, 439, 440, 6 P. 7, 11, 12, 13 (referred to); 150 C. 49S. 504, 89 P. 98 (construed with §§ 1357 and 1359 — specific devises and specific legacies are free from any contribution to payment of general legacies). As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. 739 §§ 1363, 1364 CIVIL CODE. [Div.II,Pt.IV. Abatement of legacies in case of deficiency of assets of estate. — See note § 1357, ante; 8 A. S. 720-725. After-born child — Contribution for share of. — See Kerr's Cyc. C. C. § 1308 and note. § 1363. SPECIFIC DEVISES AND LEGACIES. In a spe- cific devise,, pr legacy, the title passes by the will, but posses- sion can only be obtained from the personal representative; and he may be authorized by the superior court to sell the property devised and bequeathed in the cases herein pro- vided. HLstory: Enacted March 21, 1872; amended April 6, 1S80. Code Amdts. 1880 (C. C. pt.), p. 8. See Kerr's Cyc. C. C. for 49 pars, annotation. 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty). As to procedure where testator indebted to partnership wills interest in assets to surviving partner, see Kerr's Cyc. C. C. § 1360 and note par. 12. As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. Postponement to future period — Devise or legacy to class. — See Kerr's Cyc. C. C. § 1337 and note. Power given executor to sell without probate. — See Kerr's Cyc. C. C. § 1373 and note par. 5. Time when legacies and annuities become due.. — See Kerr's Cyc. C. C. § 1368 and note. § 1364. HEIR'S CONVEYANCE GOOD, UNLESS WILL IS PROVED WITHIN FOUR YEARS. The rights of a purchaser or encumbrancer of real property, in good faith and for value, derived from any person claiming the same by succession, are not impaired by any devise made by the decedent from whom succession is claimed, unless within four years after the devisor's death, the instrument containing such devise is duly proved as a will, and recorded in the office of the clerk of the superior court having jurisdiction thereof, or written notice of such devise is filed with the clerk of the county where the real property is situated. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 8; amended by Code Commission, 740 Tit.VI.ch.III.] POSSESSION OF LEGATEES. §§ 1365, 1366 Act March 16, 1901, Stats, and Amdts. 1900-1, p. 404, held uncon- stitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, pp. 606, 607. See Kerr's Cyc. C. C. for 13 pars, annotation. 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a life disposition of personalty). As to property passing by will, and vesting of interests, see note § 1357. ante; 2 Church's New Probate Law and Practice. 1580, 1588-1610. Mortgage executed by heirs — Foreclosure before sotth.-mcnt of estate. — See Kerr's Cyc. C. C. § 1377. § 1365. POSSESSION OF LEGATEES. Where specific leg- acies are for life only, the first legatee must sign and deliver to the second legatee, or, if there is none, to the personal representative, an Inventory of the property, expressing that the same is in his custody for life only, and that, on his decease, it is to be delivered and to remain to the use and for the benefit of the second legatee, or to the personal rep- resentative, as the case may be. HiNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 1 P. 479, 480 (erroneously cited for § 1265); 108 C. 463, 470, 38 P. 628, 41 P. 485 (cited). As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Cluirtli's New Probate Law and Practice, 1580, 1588-1610. § 13({«. BEQUEST OF INTEREST. In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death. HLstory: Enacted March 21. 1S72. See Kerr's Cyc. C. C. for 4 pars, annotation. 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary disposition of land — "legacy" a like disposition of personalty*. 143 C. 450, 454, 77 P. 160 (construed and lield inapplicable). As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. Accumulation.s.— See Kerr's Cyc. C. C. §§ 722-726 and notes; also note § 722, ante. 741 §§1367,1368 CIVIL CODE. [Div.II.Pt.IV. Annuities commence at testator's decease. — See Kerr's Cyc. C. C. § 1368 and note. § 1367. SATISFACTION. A legacy, or a gift in contempla- tion, fear, or peril of death, may be satisfied before death. Hi-story: . Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 235. See Kerr's Cyc. C. C. for 3 pars, annotation. As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. Contemplation, fear, or peril of death. — See Kerr's Cyc. C. C. § 1149 and note. Nuncupative wills. — See Kerr's Cyc. C. C. § 1288 subd. 3 and note. Revocation of gift causa mortis. — See Kerr's Cyc. C. C. § 1151 and note; also note § 1270, ante. § 1368. LEGACIES, WHEN DUE. Legacies are due and deliverable at the expiration of one year after the testator's decease. Annuities commence at the testator's decease. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 50 C. 244, 246, 247 (referred to); 107 C. 303, 309, 40 P. 558 (cited); 112 C. 521, 524, 527, 53 A. S. 224, 44 P. 808 (cited); 119 C. 131, 135, 51 P. 44 (cited); 143 C. 450, 456, 77 P. 160 (construed in department opinion not upheld in bank). As to appointment by will, see Kerr's Cyc. C. C. § 1369 and note par. 3. As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. As to time when legacy vests when direction is to pay in future or upon condition, see Kerr's Cyc. C. C. § 1363 and note pars. 36, 40-43. Discretionary power given to executor as to time of payment. — See Kerr's Cyc. C. C. § 1369 and note par. 11. Inability of executor to pay at end of year. — See Kerr's Cyc. C. C. § 1369 and note. "Legacy for maintenance" — Interest from testator's decease to date of distribution. — See Kerr's Cyc. C. C. § 1369 and note par. 30. Partial distribution before final settlement. — See Kerr's Cyc. C. C. P. §§ 1658-1663 and notes. 742 Tit.VI.ch.III.] INTEREST— TENOR. §§ 1369-1371 Restitution upon reversal of decree of distribution. — See Kerr's Cyc. C. C. § 1363 and note. Trust fund — Income does not accrue from testator's death. — See Kerr's Cyc. C. C. § 1366 and note. § 1369. INTEREST. Legacies bear interest from the time when they are due and payable, except that legacies for main- tenance, or to the testator's widow, bear interest from the testator's decease. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 30 pars, annotation. 50 C. 244. 247 (construed); 107 C. 303, 308, 309 (construed but erroneously cited as §1569), 40 P. 558, 560 (correct citation); 112 C. 521, 524, 527, 53 A. S. 224, 44 P. 808 (construed and ap- plied); 137 C. 429, 431, 70 P. 303 (construed and applied); 143 C. 450, 454 (referred to), 456, 457 (construed in department in opinion not upheld in bank), 77 P. 160. As to appointment pursuant to power contained in prior will, see Kerr's Cyc. C. C. § 1368 and note par. 5. As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. Annuity — Distinction between annuity and legacy for life. — See Kerr's Cyc. C. C. §1368 and note" par. 3. §1370. CONSTRUCTION OF THESE RULES. The four preceding sections are in all cases to be controlled by a testa- tor's express intention. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 112 C. 521, 524, 53 A. S. 224, 44 P. 808 (construed and applied). As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. Interest may be controlled by testator. — See Kerr's Cyc. C. C. §1369 and note pars. 18-21. Order in which legacies sliall be paid controllnblo by testator. —See Kerr's Cyc. C. C. § 1360 and note pars. 10. 11. Power given to executor to sell without probate. — See Kerr's Cyc. C. C. § 1373, note par. 5. § 1371. EXECUTOR ACCORDING TO THE TENOR. Where it appears, by the terms of a will, that it was the intention 743 §§ 1372-1374 CIVIL CODE. [Div.II.Pt.IV. of the testator to commit the execution thereof and the administration of his estate to any person as executor, such person, although not named executor, is entitled to letters testamentary in like manner as if he had been named exec- utor. HLstory: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 5 pars, annotation. 101 C. 381, 386, 40 A. S. 61, 35 P. 900 (construed); 107 C. 587, 591, 40 P. 810 (referred to); 124 C. 45, 47, 56 P. 781 (applied). As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. § 1372. POWER TO APPOINT IS INVALID. An authority to an executor to appoint an executor is void. History: Enacted March 21, 1872. As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. § 1373. EXECUTOR NOT TO ACT TILL QUALIFIED. No person has any power, as an executor, until he qualifies, except that, before letters have been issued, he may pay funeral charges and take necessary measures for the preser- vation of the estate. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. §1374. PROVISIONS AS TO REVOCATIONS. The pro- visions of this title in relation to the revocation of wills apply to all wills made by any testator living at the expira- tion of one year from the time it takes effect. History: Enacted March 21, 1872. As to property passing by will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate Law and Practice, 1580, 1588-1610. 744 Tit.VI.Ch.III.] VALIDITY. ETC., OF WILLS. §§ 1370-1377 § 1375. EXECUTION AND CONSTRUCTION OF PIJIOH WILLS NOT AFFECTED. The provisions of this title do not impair the validity of the execution of any will made before it takes ejfect, or affect the construction of any such will. Hi-story: Enacted March '21, 1S72. As to property passing by wiU, and vesting of interests, see note § 13.57, ante; 2 Church's New Probate Law and Practice. 1580, 1588-1610. § 137(5. LAW GOVERNING VALIDITY AND INTERPRE- TATIO>' OF WILLS. The validity and interpretation of wil.ls. wherever made, are governed, when relating to property within this state, by the law of this state, except as provided in section twelve hundred and eighty-five. HLstory: Enacted March 21, 1872; amended March" 30, 1S74. Code Amdts. 1873-4, p. 235; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 404, held unconstitu- tional, see history, § 4 ante; amendment re-onactod Marcli 2L 1905, Stats, and Amdts. 1905, p. 607. See Kerr's Cyc. C. C. for 3 pars, annotation. As to property passing- by wiU. and vesting of interests, see note § 1357, ante; 2 Cliurcb's New Probate Law and Practice, 1580, 1588-1610. Statute not retroactive. — See Kerr's Cyc. C. C. § 1375 and note. § 1377. LI VmLlTV OF RENEFK I.VRIES FOR TEST.V- TOR'S OBLIGATIONS. Those to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the Code of Civil Procedure. History: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 140 C. 282, 289, 73 P. 976 (in the whole title on wills "devise" is used with reference to a testamentary disposition of land, and "legacy" with reference to a like disposition of personalty). As to property passiiig b.v will, and vesting of interests, see note § 1357, ante; 2 Church's New Probate I^aw and Practice. 1580, 1588-1610. Common-law rule. — See Kerr's Cyc. C. C. §1358 and note par. 5. 745 § 1383 CIVIL CODE. [Div.II,Pt.IV. "Debts" — What constitute. — See Kerr's Cyc. C. C. § 1358- and note pars. 6, 7. Intestate's property liable for debts. — See Kerr's Cyc. C. C. § 1358 and note. Maturity of debt after distribution to heirs. — See Kerr's Cyc. C. C. § 1358 and note par. 10. Order of resort to propertj^ for payment of debt. — See Kerr's Cyc. C. C. § 1359 and note. TITLE VII. SUCCESSION, § 1383. Succession defined. § 1384. Intestate's estate, to whom passes. §1385. Personal representatives [repealed]. § 1386. Succession and distribution of property of deceased person. § 1387. Illegitimate children to inherit in certain events. § 1388. Property of illegitimate child is succeeded to, when and how. § 1389. Degrees of kindred, how computed. § 1390. Same. [Collateral line.] § 1391. Same. [Ascending and descending direct line.] § 1392. Same. [Degrees in direct line.] s 1393. Same. [Degrees in collateral line.] § 1394. Relatives of the half-blood. § 1395. Advancements constitute part of distributive share. § 1396. Advancements, when too much, or not enough. I 1397. What are advancements. § 1398. Value of advancements, how determined. § 1399. When heir, advanced to, dies before decedent. § 1400. Inheritance of husband and wife from each other. § 1401. Distribution of community property on death of wife. § 1402. Distribution of common property on death of the husband. § 1403. Inheritance by representation. § 1404. Aliens may inherit, when, and how. § 1405. Succession not claimed, attorney-general to cause to be sold, and proceeds deposited with state treasurer. § 1406. When the property and estate escheat to the state. § 1407. Property escheated subject to charges as other prop- erty. § 1408. Successor liable for decedent's obligations. § 1409. Persons convicted of murder of decedent, not to suc- ceed. 746 Tit. VII.] SUCCESSION, GENERALLY. §1383 § 1383. SUCCESSIOX DEFINED. Succession is the com- ing in of another to take the property of one who dies without disposing of it by will. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 52 C. 294, 298 (cited); 88 C. 582, 586, 22 A. S. 336, 26 P. 521. 522, 12 L. 46 (cited); 40 P. 35, 36 (cited): 112 C. 387, 394, 399, 44 P. 734 (construed and applied); 132 C. 609, 612, 64 P. 995 (cited); 136 C. 110, 112, 68 P. 499 (cited); 143 C. 194, 198, 76 P. 968 (cited). SUCCESSION — GE1VERAI.L.Y. Acknowledgment of illegitimate child, sufficiency of. — See Kerr's Cyc. C. C. §1387, note par. 27; 1 Church's New Probffte Law and Practice 55; 11 L. N. S. 1052. Adopted children — As to inheritance by. — See "Inheritance by adopted children," this note. Same— Inheritance from. — See 17 L. 437. Same — Right to inherit property from a relative of adoptive parent. — See 8 L. N. S. 117. Aliens — Effect of naturalization on right to inherit. — See 31 L. 181. Same — Effect of state statutes and constitutions upon right to inherit.— See 31 L. 85; 31 L. 146. Same — Effect of treatise upon right to inherit. — See 32 L. 177. Same — Inheritance by. — See Kerr's Cyc. C. C. §S 672, 1404 and notes; 1 Church's New Probate Law and Practice 52; 12 A. S. 93; 31 L..177. Same — Nonresident illegitimate, rights of inheritance of. — See 1 Church's New Probate Law and Practice 57. Children's right of inheritance — As to generally. — See 1 Church's New Probate Law and Practice 46. Same— Heirs of half-blood.— See Kerr's Cyc. C. C. §§ 1386. 1394 and notes; 1 Church's New Probate Law and Practice 47; 61 A. D. 655; 29 L. 451. Community property — Distribution of — On death of husband. — See Kerr's Cyc. C. C. 8 1402 and note. Same — Same — On death of wife. — See Kerr's Cyc. C. C. §1101 and note. Construction of statutes. — See 1 Church's New Probate Law and Practice 46. Deflection of descent. — See 1 Church's New Probate Law and Practice 40. Degrees of consanguinity and afflnity. how computed. — See Kerr's Cyc. C. C. §§ 1389-1393 and notes; 56 A. D. 293. Descent — Deflection' of. — See 1 Church's New Probate Law and Practice 40. 747 § 1383 CIVIL CODE. [Div.II,Pt.IV. Same — Of unpatented mining claim. — See 4 L. N. S. 919. Descent and distribution among kindred of half-blood. — See 29 L. 541-567. Descent and distribution, law governing-. — See 10 L. 766. Descent of title to personal property. — See 112 A. S. 727. Descent on death of unmarried minor. — See 1 Church's New Probate Law and Practice 48. Descent to father. — See Kerr's Cyc. C. C. § 1386, note par. 44; 1 Church's New Probate Law and Practice 50. Descent to grandparents. — See 1 Church's New Probate Law and Practice 50. Distribution of community property on — Death of husband. — See Kerr's Cyc. C. C. § 104 and note. Same — Death of wife. — See Kerr's Cyc. C. C. § 1401 and note. Election of widow to take under will. — See 1 Church's New Probate Law and Practice 46. Homesteads — Taking by descent. — See 1 Church's New Pro- bate Law and Practice 43. Illegitimacy, how inferred. — See 1 Church's New Probate Law and Practice 57. Illegitimate children — Acknowledgment of, effect upon right to inherit. — See 1 Church's New Probate Law and Practice 54. Same — Inheritance by or through, as to generally. — See Kerr's Cyc. C. C. §1387 and note; §1388, note par. 2; 1 Church's New Probate Law and Practice 16, 54-56. Same — Nonresident alien. — See 1 Church's New Probate Law and Practice 57. Same — Presumption of legitimacy. — See 1 Church's New Pro- bate Law and Practice 56. Same — Pretermitted illegitimate child. — See 1 Church's New Probate Law and Practice 58. Same — Succession of estate where not acknowledged. — See 1 Church's New Probate Law and Practice 55. Same — Sufficiency of acknowledgment. — See Kerr's Cyc. C. C. § 1387, note par. 27; 1 Church's New Probate Law and Practice 55; 11 L. N. S. 1502. Same — What law governs. — See 1 Church's New Probate Law and Practice 58. Indians — Inheritance by. — See 1 Church's New Probate Law and Practice 53. Inheritance by adopted children. — See Kerr's Cyc. C. C. § 1386, note par. 2; 1 Church's New Probate Law and Practice 20, 48; 118 A. S. 684; see "Adopted Children," this note. Inheritance by aliens. — See "Aliens," this note. Inheritance by convict. — See Kerr's Cyc. C. C. § 1409 and note; 1 Church's New Probate Law and Practice 51; 2 A. C. 658; 7 A. C. 976; 5 L. 344. 748 Tit. VII.] SUCCESSION, GENERALLY. § 1383 Inlieritance by Indians. — See 1 Church's New Probate Law and Practice 53. Inheritance by wife. — See Kerr's Cyc. C. C. § 1386 and note par. 57. Law governing descent and distribution. — See 10 L. 766. Minor, unmarried, descent on death of. — See 1 Church's New Probate Law and Practice 48. Murderer of decedent — Not entitled to succeed. — See Kerr's Cyc. C. C. § 1409 and note; 2 A. C. 658; 7 A. C. 976; 3 L. 726; 5 L. 344. "Next of kin," wlio are. — See 15 L. 300. Personal property, descent of title to. — See 112 A. S. 727. Presumption as to legitimacy of child born out of wedlock. — See 1 Church's New Probate Law and Practice 56. Pretermitted illegitimate child, inheritance by. — See 1 Church's New Probate Law and Practice 58. Procedure where succession is not claimed. — See Kerr's Cyc. C. C. § 1405 and note. Relatives of the half-blood — Taking by descent. — See Kerr's Cyc. C. C. §§ 1386, 1394 and notes; 51 A. D. 655; 29 L. 541-567. Right to take property by inheritance of will, as a natural right protected by the constitution. — See 9 A. C. 726. Rights of widow — As to generally, see 1 Church's New Pro- bate Law and Practice 44. Same — As survivor. — See 1 Church's New Probate Law and Practice 45. Same — Construction of statutes. — See 1 Church's New Probate Law and Practice 46. Same — Election to take under will. — See 1 Church's New Pro- bate Law and Practice 46; see also "Election," this note. Same — Inheritance by. — See Kerr's Cyc. C. C. § 1386 and note par. 57. Same — Under agreements. — See 1 Church's New Probate Law and Practice 45. Succession to estate of illegitimate child not acknowledged or adopted. — See 1 Church's New Probate Law and Practice 55. Succession to estate of intestate. — See 12 A. S. 81-113. Taking by contract and not by succession. — See 1 Church's New Probate Law and Practice 54. Taking by descent — In general. — See Kerr's Cyc. C. C. §§ 1.j89- 1393 and note; 1 Church's New Probate Law and Practice 38; 56 A. D. 293. Same — Deflection of descent. — See 1 Church's New Probate Law and Practice 40. Same — Degrees of consanguinity and affinity, how computed on. — See Kerr's Cyc. C. C. §§ 1389, 1393 and notes: 56 A. D. 293. Same — In cases of intestacy. — See 12 A. S. 81-113. 749 § 1384 CIVIL CODE. [Div.II.Pt.IV. Same — Law governing descent and distribution. — See 10 L. 766. Same — Personal property. — See 112 A. S. 727. Same — Procedure where succession is not claimed. — See Kerr's Cyc. C. C. § 104 and note. Same — Right to take by inheritance or will as a natural right protected by the constitution. — See 9 A. S. 726. Same — Tiite. passes how. — See 1 Church's New Probate Law and Practice 40. Same- — Who are "next of kin." — See 15 L. 300. Timber-culture claims — Taking by descent. — See 1 Church's New Probate Law and Practice 44. Title passes how. — See 1 Church's New Probate Law and Practice 40. What property descends — As to generally, see 1 Church's New Probate Law and Practice 40. Same — Community property. — See Kerr's Cyc. C. C. §§ 1401, 1402 and notes; 1 Church's New Probate Law and Practice 42. Same — ^Homesteads. — See 1 Church's New Probate Law and Practice 43. Same — Timber-culture claims. — See 1 Church's New Probate Law and Practice 44. Same — Unpatented mining claim. — See 4 L. N. S. 919. Who can inherit.- — See 1 Church's New Probate Law and Practice 51. § 1384. INTESTATE'S ESTATE, TO WHOM PASSES. The property, both real and personal, of one who dies without disposing of It by will, passes to the heirs of the intestate, subject to the control of the probate court, and to the posses- sion of any administrator appointed by that court, for the purposes of administration. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 236. See Kerr's Cyc. C. C. for 25 pars, annotation. 86 C. 500, 527, 24 P. 172, 180, 25 P. 64 (construed); 88 C. 582, 586, 588, 22 A. S. 336, 26 P. 521, 522, 12 L. 46 (construed); 100 C. 158, 164, 34 P. 667 (construed); 105 C. 173, 183, 38 P. 715 (con- strued); 40 P. 35 (applied); 109 C. 417, 422, 42 P. 139 (applied); 114 C. 526, 528, 43 P. 613, 46 P. 460 (applied); 123 C. 681, 687, 56 P. 547 (cited); 137 C. 172, 174, 69 P. 968 (applied); 143 C. 194, 198, 76 P. 968 (cited); 149 C. 208, 210, 85 P. 609 (title to estate of intestate vests in heirs, whether known or unknown, imme- diately upon his death); 149 C. 521, 529, 86 P. 1084, 8 L. N. S. 1210 (intestate's estate, upon his death, descends to and vests 750 Tit. VII.] SUCCESSION AND DISTRIBUTION. §§1385,1386 in his heirs, subject to what); 149 C. 712, 717, 87 P. 573 (property of decedent vests immediately upon his death, either in his heirs or in the devisees and legatees); 152 C. 760. 763, 93 P. 1010, 1011 (passing of title to heirs, devisees, or legatees is subject to what control); 128 U. S. 53, 54, 32 L,. ed. 415, 418 (cited). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. Absence of heirs, to whom intestate's estate passes. — See Kerr's Cyc. C. C. § 1386, subd. 10 and note; Kerr's Cyc. C. C. P. §§ 1452, 1581 and note; Kerr's Cyc. Pol. C. § 474 and note. Administrator and executor are entitled to possession. — See Kerr's Cyc. C. C. P. § 1452 and notes. Determination of heirship, by whom made. — See Kerr's Cyc. C. C. P. § 1664 and notes. §1385. PEESONAL EEPRESENTATIVES (repealed). History: Enacted March 21, 1872, repealed March 30, 1874, Code Amdts. 1873-4, p. 236. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. §1386. SUCCESSION AND DISTRIBUTION OF PROP- ERTY OF DECEASED PERSON. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing thereof by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this code and the Code of Civil Procedure, subject to the payment of his debts, in the following manner: 1. If the decedent leaves a siirviviiijr Iiiisbaud or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one- third to the surviving husband or wife, and the remainder in equal shares to his children and to the lawful issue of any deceased child, by right of representation; but if there is no child of decedent living at his death, the remainder goes to all of his lineal descendants; and if all of the descendants are in the same degree of kindred to the decedent, they share 751 § 1386 CIVIL CODE. [Div.II.Pt.IV. equally, otherwise they take according to the right of repre- sentation. If the decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living and the lawful issue of one of more deceased children, then the estate goes in equal shares to the children living, or to the child living and the issue of the deceased child or children by right of representation; 2. If the decedent leaves no issue, the estate goes one-half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either is dead the whole of said half goes to the other. If there is no father or mother, then one-half goes in equal shares to the brothers and sisters of decedent and to the children or grand- children of any deceased brother or sister by right of repre- sentation. If the decedent leaves no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either is dead then to the other; 3. If there is neitlier issue, husband, wife, father, nor mother then in equal shares to the brothers and sisters of decedent and to the children or grandchildren of any deceased brother or sister, by right of representation; 4. If the decedent leaves a surviving husband or wife, and neither issue, father, mother, brother, sister, nor the children or grandchildren of a deceased brother or sister, the whole estate goes to the surviving husband or wife; 5. If the decedent leaves neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that, when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote; 6. If the decedent leaves several children, or one child and the issue of one or more children, and any such surviving child dies under age and not having been married, all the estate that came to the deceased child by inheritance from 752 Tit. VII.] SUCCESSION, ON DEATH. § 1386 such decedent descends in equal shares to the other children of the same parent and to the issue of any such other children who are dead, by right of representation; 7. If, at the death of such child, ^ho dies under age, not having been married, all the other children of his parents are also dead, and any of them has left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation; 8. If the deceased is a widow, or widower, and leaves no issue, and the estate, or any portion thereof, was common property of such decedent and his or her deceased spouse, while such spouse was living, such pi'operty goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one-half of such common property goes to the father and mother of such decedent in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such decedent and to the descendants of any deceased brother or sister by right of representation, and the other half goes to the father and mother of such deceased spouse in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such deceased spouse and to the descendants of any deceased brother or sis- ter by right of representation. If the estate, or any ]><»rtion thereof, was separate property of such deceased spouse, while living, and came to such decedent from such spouse by descent, devise, or bequest, such property goes in equal shares to the children of such spouse and to the descendants of any deceased child by right of representation, and if none, then to the father and mother of such spouse, in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such spouse and to the descend- 753 § 1386 CIVIL CODE. [Div.II.Pt.IV. ants of any deceased brother or sister by right of represen- tation. 9. If the decedent leaves no husband, wife, or kindred, and there are no heirs to take his estate or any portion thereof, under subdivision eight of this section, the same escheats to the state for the support of the common schools. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 236; April 23, 1880, Code Amdts. 1880 (C. C. pt.), p. 14; by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 404, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, pp. 607, 608; amended March 18, 1907, Stats, and Amdts. 1907, pp. 567-569, Kerr's Stats, and Amdts. 1906-7, pp. 424, 425. See Kerr's Cyc. C. C. for 67 pars, annotation. 63 C. 414, 416, 417 (construed); 75 C. 213, 219, 16 P. 887, 888, 7 A. S. 146 (construed with §§ 227, 228 — right of adopted child to succeed by inheritance); 76 C. 527, 531, 18 P. 650, 652 (applied); 78 C. 586, 587 (construing subd. 5), 588 (construing subd. 2), 12 A. S. 80, 21 P. 435; 81 C. 408, 438, 21 P. 976, 978, 22 P. 742, 1028, 6 L. 594 (construed and applied); 84 C. 489, 495, 24 P. 269, 270 (subd. 2 construed and applied); 88 C. 582, 586, 22 A. S. 336, 26 P. 521, 522, 12 L. 46 (construed with other sections); 88 C. 616, 620, 26 P. 373, 374 (construing subd. 5); 110 C. 524, 526, 527 (con- strued with §1394), 42 P. 950 (subd. 6 construed and applied); 114 C. 464, 465, 46 P. 380 (subds. 2 and 3 construed); 117 C. 281, 285, 286, 49 P. 181 (construed and applied); 123 C. 681, 687, 688, 56 P. 547 (referred to — 'meaning of "heirs" in . instrument of conveyance); 124 C. 128, 129, 56 P. 789 (subd. 5 construed); 130 C. 316, 322, 80 A. S. 127, 62 P. 559 (applied); 131 C. 433, 434, 435, 82 A. S. 358, 63 P. 729 (construed); 132 C. 214, 215, 217, 64 P. 284 (subd. 5 applied — right of brothers and sisters of half-blood to inherit); 132 C. 523, 526, 84 A. S. 70, 60 P. 442, 64 P. 1000 (referred to); 132 C. 609, 612, 613, 64 P. 995 (applied); 136 C. 110, 112, 68 P. 499 (cited); 138 C. 546, 548 (referred to), 549 (subd. 9 construed and applied), 550, 551 (construed and applied), 71 P. 458; 140 C. 468, 469, 74 P. 10 (construed — sense in which word "issue" is used — right of adopted child to succeed to estate of adoptive parents); 143 C. 194, 197 (construed), 198 (construed), 202, 205, 207 (cited in dis. op.), 76 P. 968; 146 C. 577, 579, 80 P. 860 (subds. 2 and 7 applied); 147 C. 606, 607, 82 P. 246 (subd. 9 applied); 149 C. 208, 212, 85 P. 609 (subd. 9 applied- pleading); 149 C. 702, 703, 87 P. 384 (former law — rule of prop- erty — nephews and nieces do not succeed when); 150 C. 682-689, 89 P. 833 (construed with §§1387 and 1388 — what rule as to succession from illegitimates must prevail over this section); 754 Y Tit. VII.] LEGITIMATE CHILDREN. § 1387 152 C. 201, 207 (applied, but erroneously cited as § 1386 C. C. P.), 92 P. 184, 186 (correct citation); 92 P. 210, 211 (referred to); 128 U. S. 53, 54, 32 L. ed. 415, 418 (cited). As to inheritance by kindred of half-blood, see Kerr's Cyc. C. C. § 1394 and note. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. As to rights of succession of pretermitted children, see Kerr's Cyc. C. C. § 1307 and note. As to who entitled to succeed to estates of inheritance, see 12 A. S. 81-113. As to who are "heirs" and meaning of word, see 8 L. 732, 747; 12 L. 721; 13 L. 46. Same — Within meaning of insurance policy, see 30 L. 593. §1387. ILLEGITIMATE CHILDREN TO IJfHERIT IN CERTAIN EVENTS. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a com- petent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowl- edges him as his child, or adopts him into his family; in which case such child and all the legitimate children are con- sidered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 405, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 40 pars, annotation. 52 C. 84, 87 (applied); 57 C. 484, 491, 492 (applied); 63 C. 414, 755 §§ 1388, 1389 CIVIL CODE. [Div.II.Pt.IV. 415, 416, 417 (construed and applied); 81 C. 408, 421, 422, 442, 447, 21 P. 976, 979, 980. 981, 22 P. 742, 745. 1028, 6 L. 594 (con- strued and applied); 96 C. 532, 557, 581, 582, 588, 591, 593, 594, 31 P. 915, 19 L. 40 (construed); 102 C. 254. 262, 263, 36 P. 522 (construed); 40 P. 35 (referred to); 112 C. 689, 693, 45 P. 6 (con- strued); 127 C. 431, 434, 59 P. 787 (applied); 142 C. 158, 168, 170, 171, 75 P. 790 (applied in case of legitimation by adoption); 150 C. 682,r684, 685, 686, 687, 689, 89 P. 833 (construed with §§ 1386, 1388 — right of illegitimate half-sister of illegitimate to inherit); 173 U. S. 501, 504, 43 L. ed. 783, 784, 785 (referred to); 180 U. S. 333, 334, 335, 45 L. ed. 557, 558, 21 Sup. Ct. Rep. 390 (referred to). As to succession by or througli illegitimate children, see note § 1383, ante; and 12 A. S. 101. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. Illegitimate children. — See Kerrs Cyc. C. C. §§ 84, 215, 224, 227, 228, 230 and notes. § 1388. PROPEKTY OF ILLEGITIMATE CHILD IS SUC- CEEDED TO, WHEN A>D HOW. The estate of an illegiti- mate child, who has been legitimated by the subsequent mar- riage of its parents, or adopted by the father as provided by section two hundred and thirty, and who dies intestate, is suc- ceeded to as if he were born in lawful wedlock. If such child has not been so legitimated or adopted, his estate goes to his lawful issue, or, if he leaves no issue, to his mother, or in case of her decease, to her heirs at law. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 406, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 609. See Kerr's Cyc. C. C. for 3 pars, annotation. 63 C. 414, 415, 417 (applied); 40 P. 35, 36 (referred to with other sections in discussion); 150 C. 682, 684, 686, 687, 688, 689, 89 P. 833 (construed with §§ 1386, 1387 applied). As to law of succession, see note § 1383, ante; 1 Cliurch's New Probate Law and Practice, 22, 38-58. §1389. DEGREE OF KINDRED, HOW COMPITED. The degree of kindred' is established by the number of generations, and eacli generation is called a degree. History: Enacted March 21, 1872. 756 Tit. VII.] COLLATERAL LINE. §§1390-1392 See Kerr's Cyc. C. C. for 5 pars, annotation. (C. April 2, 1895), 40 P. 35, 36 (referred to with other sections in discussion). As to law of succession, see note § 1383, ante; 1 Ciiurch's New Probate Law and Practice, 22, 38-58. As to degrees of consanguinity and affinity — How computed for purposes of succession, see 56 A. D. 293. As to who are next of kin, see 12 A. S. 107; 15 L. 300. §1390. SAME. [COLLATEBAL LINE.] The series of degrees forms the line; the series of degrees between per- sons who descend from one another is called direct or lineal consanguinity; and the series of degrees between persons who do not descend from one another, but spring from a common ancestor, is called the collateral line, or collateral consan- guinity. History: Enacted March 21, 1872, founded upon Louisiana Civil Code, art. 886. 40 P. 35, 36 (referred to with other sections in discussion). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. § 1391. SAME. [ASCENDING AND DESCENDING DIRECT LINE.] The direct line is divided into a direct line descend- ing and a direct line ascending. The first is that which con- nects the ancestors with those who descend from him. The second is that which connects a person with those from whom he descends. History: Enacted March 21, 1872, founded upon Louisiana Civil Code, art. 886. 40 P. 35, 36 (referred to with other sections in discussion). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. §1392. SAME. [DEGREES IN DIRECT LINE.] In the direct line there are as many degrees as there are generations. Thus, the son is, with regard to the father, in the first degree; the grandson in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons. History: Enacted March 21, 1872, founded upon Louisiana Civil Code, art. 887. 757 §§ 1393-1395 CIVIL CODE. [Div.II,Pt.IV. 40 P. 35, 36 (referred to with other sections in discussion). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. § 1393. SAME. [DEGREES IN COLLATERAL LINE.] In the collateral line the degrees are counted by generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excluded, the relative included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins german in the fourth, and so on. Hi.story: Enacted March 21, 1872, founded upon Louisiana Civil Code, art. 888; Mon-tesq. Esprit des Lois, liv. 27. See Kerr's Cyc. C. C. for 3 pars, annotation. 105 C. 526, 557, 558, 38 P. 94, 722, 28 L. 773 (construed); 40 P. 35, 36 (referred to with other sections in discussion). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. § 1394. RELATIVES OF THE HALF-BLOOD. Kindred of the half-blood inherit equally with those of the whole-blood in the same degree, unless the inheritance come to the intes- tate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance. History: Enacted March 21, 1872, founded upon § 4 Act April 13, 1850, Stats. 1850, p. 221. See Kerr's Cyc. C. C. for 13 pars, annotation. 40 P. 35, 36^ (referred to with other sections in discussion); 110 C. 524, 527 (construed and applied), 42 P. 960; 131 C. 433, 434, 435, 436, 82 A. S. 358 (construed and applied), 63 P. 729; 132 C. 214, 216 (applied), 217 (applied), 64 P. 284. As to inheritance by half-blood, see 61 A. D. 655; 29 L. 541, 567. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. Kindred of half-blood as administrators. — See Kerr's Pocket C. C. P. § 1366. §1395. ADVANCEMEIVTS CONSTITUTE PART OF DIS- TRIBUTIVE SHARE. Any estate, real or personal, given by 758 Tit. VII.] ADVANCEMENTS. §§ 1396, 1397 the decedent in his lifetime as an advancement to any child, or other heir, is a part of the estate of the decedent for the purposes of division and distribution thereof among his heirs, and must be taken by such child, or other heir, toward his share of the estate of the decedent. Hi-story: Enacted March 21, 1872, founded upon § 5 Act April 13, 18.50, Stats. 1850, p. 221; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 406, held unconstitu- tional, see history, § 4 ante; amendment re-enacted March 21, 1905, p. 609. See Kerr's Cyc. C. C. for 3 pars, annotation. 74 C. 125, 132, 15 P. 455, 457 (cited in discussion); 40 P. 35, 36 (referred to in discussion). As to doctrine of advancements to heirs, see 12 L. 566. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. §1396. ADVANCEMENTS, WHEN TOO MXTH, OR NOT ENOUGH. If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. History: Enacted March 21, 1872, founded upon § 6 Act April 13, 1850, Stats. 1850, p. 221. 40 P. 35, 36 (referred to in discussion); 74 C. 125. 132, 15 P. 455 (cited with other sections in discussion). See Kerr's Cyc. C. C. §§ 1395, 1397 and notes. As to interest on advancements to equalize, see note 14 Ij. 716. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. As to valuation of, see 80 A. D. 564. §1397. ^YHAT ARE ADVANCEMENTS. All gifts and grants are made as advancements, if expressed in the gift or grant to be so made; or if charged in writing by the decedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir. 759 §§ 1398, 1399 CIVIL CODE. [Div.II.Pt.IV. History: Enacted March 21, 1872, founded upon § 7 Act April 13, 1850, Stats. 1850, p. 221. See Kerr's Cyc. C. C. for 4 pars, annotation. 40 P. 35, 36 (referred to in discussion); 74 C. 125, 132, 15 P. 455 (cited with other sections in discussion). As to advancements, wliat constitute, see 80 A. D. 559. As to law of succession, see note § 1383, ante; 1 Cliurch's New Probate Law and Practice, 22, 38-58. §1398. VALUE OF ADVANCEMENTS, HOW DETER- MINED. If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the dece- dent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained. History: Enacted March 21, 1872, founded upon § 8 Act April 13, 1850, Stats. 1850, p. 221. 40 P. 35, 36 (referred to in discussion); 74 C. 125, 132, 15 P. 455 (cited with other sections in discussion). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. § 1399. WHEN HEIR, ADVANCED TO, DIES BEFORE DECEDENT. If any child, or other heir receiving advance- ment, dies before the decedent, leaving heirs, the advancement must be taken into consideration in the division and distribu- tion of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them. History: Enacted March 21, 1872, founded upon § 9 Act April 13, 1850, Stats. 1850, p. 221; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 406, held unconstitu- tional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 609. 74 C. 125, 132, 15 P. 455 (cited with other sections in discus- sion); 40 P. 35, 36 (referred to in discussion). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. "Advancements." — See Kerr's Cyc. C. C. §§ 1309, 1351 and 1395 and notes. 760 Tit. VII.] COMMUNITY PROPERTY. §§1400,1401 § 1400. IIVHERITANCE OF HI SBA>D AND ^VIFE FROU EACH OTHER. The provisions of the preceding sections of this title, as to the inheritance of the husband and wife from each other, apply only to the separate property of the dece- dents. History: Enacted March 21, 1872, founded upon § 10 Act April 13, 1850, Stats. 1850, p. 221. See Kerr's Cyc. C. C. for 7 pars, annotation. 40 P. 35, 36 (cited); 112 C. 387, 394, 44 P. 734 (construed); 150 C. 682, 689, 89 P. 833 (referred to). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. As to succession of husband and wife to each otlier, see 12 A. S. 82. § 1401. DISTRIBUTION OF COMMUNITY PROPERTY ON DEATH OF WIFE. Upon the death of the wife, the entire community property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her by judicial decree, for her support and maintenance, which portion is subject to her testamentary disposition, and in the absence of such disposition, goes to her descendants, or heirs, exclusive of her husband. History: Enacted March 21, 1872, founded upon § 1 Act April 17, 1850, Stats. 1850, p. 255, as amended April 4. 1864. Stats. 1863-4, p. 363; amended April 30, 1874, Code Anidts. 1873-4, p. 238. See Kerr's Cyc. C. C. for 17 pars, annotation. 63 C. 12, 14 (cited in discussion); 74 C. 523, 525, 5 A. S. 464. 16 P. 315, 316 (construed and applied); 80 C. 208, 209, 13 A. S. 116, 22 P. 141, 142 (applied); 88 C. 283, 287, 26 P. 91, 92 (applied); 40 P. 35 (cited); 110 C. 277, 290, 42 P. 822 (held not applicable^; 112 C. 387, 395, 44 P. 734 (construed); 126 C. 30, 33. 58 P. 324 (applied); 143 C. 292, 295, 76 P. 1108 (applied); 148 C. 695, 698, 84 P. 175 (applied); 149 C. 200, 206, 85 P. 147 (applied); 150 C. 682, 689, 89 P. 833 (referred to). As to law of succession, see note § 1383, ante: 1 Church's New Probate Law and Practice, 22, 38-58. As to succession to community property, see 12 A. S. 90. 761 §§ 1402, 1403 CIVIL CODE. [Div.II.PtJV. §1402. DISTRIBUTION OF COMMON PROPERTY ON DEATH or THE HUSBAND. Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary dispo- sition of the husband, and in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same degree of kindred to the decedent; otherwise, accord- ing to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribu- tion 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 administration. History: Enacted March 21, 1872, founded upon § 11 Act ♦April 17, 1850, Stats. 1850, p. 255, as amended April 4, 1864, Stats. 1863-4, p. 363. See Kerr's Cyc. C. C. for 67 pars, annotation. 77 C. 313. 314, 19 P. 527, 528 (applied); 81 C. 240, 242, 243 (applied), 22 P. 655, 656, 657; 88 C. 582, 586 (cited with other sections in discussion), 588 (applied), 22 A. S. 336, 26 P. 521, 522, 12 L. 46; 100 C. 158, 163 (cited in discussion), 164 (applied), 34 P. 667; 106 C. 608, 612, 39 P. 939 (applied); (C. April 2, 1895), 40 P. 35, 36 (applied); 112 C. 387, 395 (construed and applied), 396 (cited), 399 (construed and applied), 44 P. 734; 113 C. 682, 688, 45 P. 858 (applied); 117 C. 509, 515, 49 P. 463 (applied); 120 C. 89, 92, 52 P. 134, 586 (applied); 148 C. 102, 106, 82 P. 668 (con- strued — ^rule applicable in absence of descendants); 149 C. 200, 206, 85 P. 147 (applied); 150 C. 682, 689, 89 P. 833 (referred to); 128 U. S. 53, 54, 32 L. ed. 415, 418 (cited). As to husband or wife's power of testamentary disposition of community property, see Kerr's Cyc. C. C. § 172 and note. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. As to succession to community property, see 12 A. S. 90. Community property defined. — See Kerr's Cyc. C, C. §§ 162 and 164 and notes; also §1401 and note. Wife takes cominunity as heir on death of husband. — See Kerr's Cyc. C. C. § 1334 and note. § 1403. INHERITANCE BY REPRESENTATION. Inher- itance or succession "by right of representation" takes place 762 Tit. VII.] ALIENS MAY INHERIT. §1404 when the descendants of any deceased heir take the same share or right in the estate of another person that their par- ents would have taken if living. Posthumous children are considered as living at the death of their parents. Ili.story: Enacted March 21, 1872, founded upon § 11 Art April 13, 1850, Stats. 1850, p. 221. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. §1404. ALIEJfS MAT INHERIT, ^VHEX, AND HOW. Resident aliens may take in all cases by succession as citi- zens; and no person capable of succeeding under the provis- ions of this title is precluded from such succession by reason of the alienage of any relative; but no non-resident foreigner can take by succession unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession. History: Enacted March 21, 1872, founded upon Const. 1849, art. I, § 17, and § 1 Act April 19, 1856, Stats. 1856, p. 137. See Kerr's Cyc. C. C. for 22 pars, annotation. 65 C. 593, 594, 4 P. 639, 640 (construed with other sections). 67 C. 380, 383, 7 P. 763, 764 (construed with otlier sections): 129 C. 86, 90, 79 A. S. 78, 61 P. 659 (cited): 143 C. 135, 140, 76 P. 962 (applied); 148 C. 55, 56, 82 P. 672, 2 L. N. S. 643 (state has no right to contest probate of will of one dying witiiout iielrs therein, where it shows no interest): 149 C. 208, 210, 85 P. 609 (bar of non-resident alien's title). As to alien's right to inherit, seo 31 L. 177. As to effect of state constitutions and statutes upon (luostion of inlieritance by or from an alien, see 31 L. 85, 146. As to effect of treaties upon an alien's riglits to inlierlt, see 32 L. 177-189. As to law of succession, see note § 1383, ante; 1 Churcli's New Probate Law and Practice, 22, 38-58. As to rights of aliens to transmit or receive an inlieritance. see 12 A. S. 93. As to who are aliens, see 84 A. D. 210. Aliens may take by succession. — See Kerr's Cyc. C. C. §| 671 and 672 and notes; also §§ 1405, 1406 and notes. 763 §§ 1405, 1406 CIVIL CODE. [Div.II.Pt.IV. - §1405. SUCCESSION NOT CLAIMED, ATTORNEY-GEN- ERAL TO CAUSE TO BE SOLD, AND PROCEEDS DEPOS- ITED IVITH STATE TREASURER. When succession is not claimed as provided in the preceding section, the superior court, on information, must direct the attorney-general to reduce the property to his possession or that of the state, or to cause it to be sold, and it or its proceeds to be deposited in the state treasury for the benefit of the person entitled thereto, to be paid to him, if, within five years after such deposit, he appears in the court in which such information was filed and asks for a judgment or order entitling him thereto. History: Enacted March 21, 1872, founded upon § 1 Act April 19, 1856, Stats. 1856, p. 137; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 406, held unconstitu- tional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 609. See Kerr's Cyc. C. C. for 3 pars, annotation. 76 C. 294, 297 (presumption that intestate has left heir), 298 (construed), 18 P. 407, 409 (erroneously cited as §1445); 129 C. 86, 90, 79 A. S. 78, 61 P. 659 (cited). As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. When property escheats. — See Kerr's Cyc. C. C. § 1386 subd. 10, post § 1406; 1 Church's New Probate Law and Practice, 59, 68-74. § 1406. WHEN THE PROPERTY AND ESTATE ESCHEAT TO THE STATE. When such judgment or order is obtained, a certified copy thereof must be filed with the state treasurer as his voucher. Thereupon the property must be 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 must be placed by the state treasurer to the credit of the school fund. History: Enacted March 21, 1872, founded upon § 1 Act April 19, 1856, Stats. 1856, p. 137: amended by Code Commission, Act March 16, 1901, Stats, and. Amdts. 1900-1, p. 407, held unconsti- 764 Tit. VII.] ESCHEATED PROPERTY. §§ 1407, 1408 tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 610. See Kerr's Cyc. C. C. for 6 pars, annotation. 76 C. 294, 297 (cited), 298 (construed and applied), 18 P. 407. 409; 129 C. 86, 90, 79 A. S. 78, 61 P. 659 (cited). As to law of succession, see note § 1383, ante; 1 Cliurcli's New Probate Law and Practice, 22, 38-58. § 1407. PROPERTY ESCHEATED SUBJECT TO CHARGE AS OTHER PROPERTY. Real property passing to the state under 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 eight, part three, of the Code of Civil Procedure. Hi.story: Enacted March 21, 1872, founded upon Act April 30, 1855, Stats. 1855, pp. 221, 222, as amended by Act February 16, 1870, Stats. 1869-70, pp. 72, 73. See Kerr's Cyc. C. C. for 2 pars, annotation. 76 C. 294, 297 (cited in discussion), 298 (cited), 299 (title 8. part 3, of the C. C. P. referred to in this section makes no pro- vision for the payment of funeral expenses, expenses of last sickness, or the debts of decedent), 18 P. 407, 409. As to law of succession, see note § 1383, ante; 1 Churcli's New Probate Law and Practice, 22, 38-58. § 1408. SUCCESSOR LIABLE FOR DECEDENT'S OBLI- GATIONS. Those who succeed to the property of a decedent are liable for his obligations in the cases and to the extent prescribed by the Code of Civil Procedure. History: Enacted March 21, 1872. As to debts being- paid before distribution, see 8 Prob. Rep. 194. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. As to liability of heirs for debts of ancestor, see 48 A. D. 395; 21 L. 89. 765 § 1409 CIVIL CODE. [Div.II.Pt.IV. §1409. PERSON CONVICTED OF MURDER OF DECE- DENT, NOT TO SUCCEED. No person who has been con- victed of the murder of the decedent shall be entitled to suc- ceed to any portion of his estate; but the portion thereof to which he would otherwise be entitled to succeed descends to the other persons entitled thereto under the provisions of this title. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 610. See Kerr's Cyc. C. C. for 5 pars, annotation. As to how far statutes will be regarded as having abrogated the maxim that one cannot profit by liis own wrong, see 25 L. 564-573. As to law of succession, see note § 1383, ante; 1 Church's New Probate Law and Practice, 22, 38-58. As to right of murderer to take by descent, see 5 L. 340- 34G; 1 Church's New Probate Law and Practice, 52. 766 Tit. VIII.] APPROPRIATION. § 1410 TITLE VIII. WATER-RIGHTS. § 1410. Rifflits to water may be acquired by appropriation. § 1411. Appropriation must be for a useful purpose. §1412. Point of diversion may be clianged. § 1413. Water may be turned into natural clianncls. §1414. First in time, first in right. § 1415. Notice of appropriation of water; contents. Recording. § 1416. Diligence in appropriation of water. §1417. Completion defined. §1418. Doctrine of relation applied. § 1419. Forfeiture. § 1420. Riglits of present claimant. § 1421. Recorder to keep book in wliich to record notices. § 1422. Time witliin whlcli to commence excavation on public reservations. § 1410. RIGHTS TO WATER MAY BE ACQUIRED BY APPROPRIATION. The right to the use of running water flowing in a river or stream or down a canyon or ravine may be acquired by appropriation. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 180 pars, annotation. 4 P. 919, 924, 925 (applied), 936 (dis. op., construed and applied); 69 C. 2r35, 368 (applied). 370 (referred to). 371, 372 (construed), 427, 452 (applied). 10 P. 674. 739. 775; 91 C. 187. 190. 27 P. 587, 588 (construed); 95 C. 615. 61G, 30 P. 783, 19 L. 92 (applied); 101 C. 107, 112, 35 P. 432 (construed and applied); 122 C. 152, 158, 54 P. 726 (applied); 5 C. A. 175, 180, 89 P. 1001 (water flowing from springs upon public lands is subject to appropria- tion): 75 F. 379, 381 (construed and applied — abandonment of right to use of water). IHRIGATION AND WATEK-RIOHTS. As to abandonment of wator-riglits. — See Kerr's Cyc. C. C. § 1411 and note. As to acquisition of water-rights by prescription or adverse enjoyment. — See Kerr's Cyc. C. C. §§315, 328 and note. As to acts relating to irrigation. — See Hen. G. L. tit. "Irriga- tion." As to appropriation of percolating waters on public lands. — See 30 L. 186. 767 § 1410 CIVIL. CODE. [Div.II.Pt.IV. As to drainag-e. — See Hen. G. L. tit. "Drainage"; and Kerr's Cyc. Pol. C. § 3446 and note. As to duty of owners or users of any canal, flume, etc., cross- ing highway to construct and keep in repair bridges across same. — See Kerr's Cyc. C. C. § 551 and note. As to general subject of right of prior appropriation of water. — See 30 L. 665. A§..to periodical appropriation of water. — See 46 L. 175. As to posting notice. — See Kerr's Cyc. C. C. §§ 1415 et seq. and notes. As to relative rights of prior and subsequent appropriators. — See Kerr's Cyc. C. C. § 1414 and note. As to water commissioners. — See Hen. G. L. tit. "Water com- missioners"; 48 Cent. Dig. col. 2744, § 306. Abandonment or loss of rights of prior appropriators. — See 30 L. 265-267. Appropriation of irrigation water by town. — See 1 L. 466. Appropriation of waste water not in channel. — See 6 L. N. S. 1104. Appropriation of waters for irrigation purposes — As to right of. — See 98 A. D. 542; 17 Bncyc. L. 494-505. Same — Doctrine of riparian rights. — See 17 Encyc. L. 491. Same — What constitutes. — See 60 A. S. 799; 17 Encyc. L. 494- 505. Appropriator — Right to enter upon land of an upper appro- priator to clean out ditch. — See 43 L. 130. Appropriators and riparian owners— Respective riglits of. — See 43 A. D. 269. Assessments and lien for enforcement thereof. — See 48 Cent. Dig. col. 2763, § 320. Bonds and other securities of irrigation districts. — See 48 Cent. Dig. col. 2760, § 319. Canals, ditches, flumes, etc. — As to generally, see 48 Cent. Dig. col. 2746, § 309. Care necessary to avoid waste in diverting waters from stream under right of appropriation. — See 15 L. N. S. 238. Change of vise of channel of water appropriated. — See 30 L. 384-390. Condemnation proceedings — As to generally, see 11 Encyc. P. 590. Same — Parties to action. — See 11 Encyc. P. 591. Dams — Rights and liabilities of owners of. — See 57 A. D. 684. Ditcli companies — Franchises, privileges, and powers of. — See 48 Cent. Dig. col. 2765, § 322. Diverting waters from stream for irrigation purposes, right of.— See 41 L. 741. Injunction and mandamus. — See 11 Encyc. P. 596. 768 Tit. VIII.] WATER RIGHTS. § 1410 Injuries incident to supply, use of and action for, as to gen- erally, see 48 Cent. Dig. col. 2765, §§ 323, 324. Irrigation — As to generally, see 48 Cent. Dig. col. 2743, §§ 304- 314. Same — As to in irate states, generally, see 17 Encyc. D. 489. Same — At common law. — See 17 Encyc. L. 487. Same — Companies formed for purposes of. — See 17 Encyc. L. 521-527. Same — Constitutional and statutory provisions relating to, generally. — See 48 Cent. Dig. col. 2743, § 305. Same — ^Definition of. — See 17 Encyc. L. 487; 4 W. & P. 3776. Same — Riparian appropriator's right to use of water for. — See 20 A. S. 225. Same — State control of. — See 17 Encyc. L. 490. Same — Storage of water for purposes of. — See 13 Encyc. L. 514. Irrigation companies — As to generally, see 17 Encyc. L. 521- 527. Irrigation districts, as to generally, see 11 Encyc. P. 589: 48 Cent. Dig. col. 2756, §§315-320; 5 W. & P. 4625. Irrigation ditches — As to generally, see 48 Cent. Dig. col. 2764, §§ 321, 322. Same — As to right to construct, use of and property in. — See 17 Encyc. L. 509-513. Same — Franchises, privileges, and powers of. — See 48 Cent. Dig. col. 2765, § 322. Same — Stock and stockholders. — See 48 Cent. Dig. col. 2764, § 321. Liability for injury caused by escape of water stored on one's premises. — See 15 L. N. S. 541. Liability for withdrawing water from reservoir. — See 62 L. 579. Liens for materials and construction. — See 48 Cent. Dig. col. 2747,. § 310; see also Kerr's Cyc. C. C. P. §§ 1183-1203 and notes. Loss of rights of prior appropriators. — See 30 L. 265. Mandamus and injunction. — See 11 Encyc. P. 596. Periodical appropriation. — See 46 L. 175. Percolating waters — On public lands — Appropriation of. — See 30 L. 186. Power to condemn riparian rights apart from land to which they are appurtenant. — See 17 L. N. S. 1005. Prior appropriation — Rule of. — See 10 L. 487. Prior appropriator — Abandonment or loss of rights. — See 30 L. 265. Same — Right of. — See 30 L. 665-679. Priority of appropriation, doctrine of. — See 17 Encyc. L. 505, Proceedings to establish water-rights. — See 48 Cent. Dig. col. 2755, § 314.' Kerr's C. C— 25 769 § 1411 CIVIL CODE. [Div.II.Pt.IV. Public use under law of eminent domain. — See 1 A. C. 304; 4 A. C. 1171; 50 A. S. 585; 29 L. 853; 6 W. & P. 5816, 5834. Reciprocal easement as to water rights. — See 17 L. N. S. 945. Right of appropriation of waters for irrigation purposes. — See 98 A. D. 542. Right of prior appropriator of water. — See 30 L. 665-679. Right of way and otlier interest in land. — ^See 48 Cent. Dig. col. 2745, § 307. Right-, of way for irrigation ditch — Right of fee-owner to cross. — See 3 L. N. S. 1148. Right to divert waters from stream for irrigation purposes. — See 41 L. 741. Right to store appropriated water. — See 46 L. 322; 17 L. N. S. 329. Riparian owners and appropriators — Respective rights of. — See 43 A. D. 269. Riparian rights — Doctrine in appropriation of water for use on land. — See 17 Encyc. L. 491. Sale of water and supply and use thereof for irrigation pur- poses. — See 48 Cent. Dig. col. 2749, § 311. State control of irrigation. — See 17 Encyc. L. 490. State regulation of rates of irrigation company. — See 12 L. N. S. 711. State regulation of tolls for use of appropriated waters. — See 33 L. 180. Stock and stockholders of. — See 48 Cent. Dig. col. 2764, § 321. Storage of water and reservoirs therefor. — See 48 Cent. Dig. col. 2745, § 307. Storage of water for purposes of irrigation. — See 17 Encyc. L. 514. Tolls and other charges for water — As to generally, see 48 Cent. Dig. col. 2753, § 312. Transfer of right to use water for irrigation. — See 65 L. 407-412. Use of natural stream to convey appropriated waters. — See 51 L. 930. Waste — Care necessary to avoid in diverting waters from stream under right of appropriation. — See 15 L. N. S. 238. Water commissioners, as to generally, see 48 Cent. Dig. col. 2744, §306; also Hen. G. L. tit. "Water Commissioners." Water-rights considered as property. — See 17 Encyc. L. 514-521. Water-riglits used in connection witli land mortgaged prior to its acquirement — Does it pass on foreclosure. — See 15 L. N. S. 359. §1411. APPROPRIATION MtTST BE FOR A USEFUL PURPOSE. The appropriation must be for some useful or 770 Tit. VIII.] POINT OF DIVERSION. §1412 beneficial purpose, and when the appropriator or his succes- sor in interest ceases to use it for such a purpose, the right ceases. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 57 pars, annotation. 4 P. 919, 936 (cited in dis op.); 69 C. 255, 307 (cited), 369. 452 (dis. op.), 10 P. 674, 701, 739 (cited with other sections); 79 C. 572, 574, 21 P. 967 (applied); (C. Aug. 6, 1892), 30 P. 768 (applied); 98 C. 63, 66, 32 P. 811, 812 (applied); 110 C. 122, 126. 127, 42 P. 453 (construed and applied); 120 C. 86, 87, 52 P. 139 (construed and applied); 150 C. 520, 533, 89 P. 338 (right extends only to water actually taken and used — it ceases witli disuse); 75 F. 379, 381 (construed and applied — abandonment of riglit to use of water). As to irrigation and water-riglits generally, see note §1410, ante. As to appropriation of water for mining purposes, see 24 L. 66. As to abandonment of water-rights, see 45 C. C. A. Rep. 190. As to abandonment or loss of rights of prior appropriators of water, see 30 L. 265. As to amount of property appropriated and notice of appro- priation, see Kerr's Cyc. C. C. § 415 and note. As to for what purpose appropriation of water is permissible, see 30 L. 674. As to necessary physical acts to complete appropriation, see Kerr's Cyc. C. C. § 1416 and note. As to right of appropriation of water for irrigation purposes, see 98 A. D. 543. §1412. rOIM OF DIVEKSION MAY BE ( H.VXJED. The person entitled to the use may change the place of diversion, if others are not injured by such change, and may extend the ditch, flume, pipe, or aqueduct by which the diversion is made to places beyond that where the first use was made. IIiNtor> : Enacted March 21, 1872. See Kerr's Cyc. C. C. for 24 pars, annotation. 4 P. 919, 936 (cited in dis. op.), 69 C. 255. 369, 452 (dis. op.), (cited with other sections), 10 P. 674, 740; 96 C. 214. 217. 31 P. 41, 42 (applied); 98 C. 332, 340, 33 P. 119, 122 (construed and applied); 106 C. 660, 665, 668, 39 P. 1060, 30 L. 384 (applied); 108 C. 72, 81, 41 P. 18. 30 L. 390 (applied); 117 C. 168, 183. 184. 48 P. 1075 (applied); 134 C. 553. 555, 66 P. 732 (applied); 138 C. 716, 721, 722, 72 P. 349 (efficient means of diversion in lieu of dam — changing place of diversion); 147 C. 401, 410, 81 P. 771 §§ 1413-1415 CIVIL CODE. [Div.II.Pt.IV. 1107 (place of use may be changed at will of owner when); 49 F. 430, 435 (design of Idaho statute, in aiming to adopt this section, and in permitting prior appropriator to change place of use, as against a subsequent appropriator). As to changing channels of artificial bodies of water, see 50 L. 844. As to change of use of cliannel of water appropriated, see 30 L. 384. .. As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. §1413. WATER MAY BE TURNED INTO NATURAL CHANNELS. The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed; but in reclaiming it the water already appropriated by another must not be diminished. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 4 P. 919, 936 (cited in dis. op.); 69 C 255, 369, 453. 10 P. 674, 740 (dis. op.), (cited with other sections); 134 C. 553, 555, 66 P. 732 (applied). As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. § 1414. FIRST IN TIME, FIRST IN RIGHT. As between ai)propriators, the one first in time is the first in right. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 53 pars, annotation. 4 P. 919, 936 (cited in dis. op.); 69 C. 255, 453, 469, 10 P. 674, 740 (cited with other sections). As to determination of priorities, see note 30 L. 677. As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. As to nature of use of water, see ante § 1411 and note. As to when right begins, see post § 1418. §1415. NOTICE OF APPROPRIATION OF WATER; CON- TENTS. RECORDING. 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 772 I Tit. VIII.] ■ NOTICES, ETC.— CONTENTS. § 1416 (giving the numbei-) inches, measured under a four-inch pressure; 2. The purpose 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 aqueduct in which he intends to divert it. [Notice must be recorded.] A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted. After filing such copy for record, the place of intended diversion or the place of intended use or the means by which it is intended to divert the water, may be changed by the person posting said notice or his assigns, if others are not injured by such change. This provision applies to notices already filed as well as to notices hereafter filed. History: Enacted March 21, 1872; amended March 21, 1903, Stats, and Amdts. 1903, p. 361. In effect March 21, 1903. See Kerr's Cyc. C. C. for 10 pars, annotation. 69 C. 255, 369, 10 P. 674, 740 (cited with other sections); SO C. 397. 398, 400, 401, 407, 20 P. 563, 565, 22 P. 198, 199 (applied); 82 C. 564, 566, 567, 568, 569, 23 P. 146, 147 (applied with other sections); 86 C. 1, 11, 26 P. 523 (applied); 29 P. 780, 782 (what is proper rule of measurement — square inches, not cubic inches); 99 C. 583, 584, 586, 587, 34 P. 324 (construed and applied with other sections); 103 C. 421, 423, 37 P. 408 (construed and applied); 149 C. 496, 499, 86 P. 1081, 1082 (what is not necessary to valid appropriation); 5 C. A. 175, 183, 184, 89 P. 1001 (copy of notice, not notice itself, to be recorded); 115 F. 543, 547 (applied — validity of appropriation depends upon requisite steps bavins been taken). As to change of place of diversion, see ante § 1412. As to extent of use, see ante § 1414 and note. As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. As to necessity of compliance with code, see post §1419 and note. As to what constitutes an appropriation of water, see 60 A. S. 799. §1416. DILIGENCE IN APPROPRIATION OF WATER. Within sixty days after the notice is posted, the claimant 773 § 1416 CIVIL CODE. • [Div.II.Pt.IV. must commence the excavation or construction of the works in which he intends to divert the water, or the survey, road or trail building, necessarily incident thereto, and must prose- cute the work diligently aud 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 commission 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; ^ [When legal proceedings delay work, time extended for diversion.] And provided further, that if it shall be neces- sary, by proceedings in eminent domain, to acquire water- rights held by adverse riparian owners or to acquire sites for dams or power plants at the point of intended diversion or the point of intended use, as described in the notice of appropriation of said water, or if there shall be conflicting claims to the waters so appropriated, then the party so appropriating, or his assigns, shall have sixty days after the determination of legal proceedings by final judgment in which to commence to excavate or construct the works in which he intends to divert the water as provided in this section: [When suits must be commenced.] And provided further, that if suits for such purpose are not already pending at the date of the passage of this act, they shall be commenced within sixty days after this act takes effect, and as to future appropriations of water, within sixty days after notice of such appropriation is posted as required by law, and such proceedings shall be prosecuted diligently to final judgment; but nothing in this act shall be construed to revive or renew appropriations of water heretofore made which have been abandoned and lost, as against subsequent claimants who have complied with this act. History: Enacted March 21, 1872; amended March 23, 1895, Stats, and Amdts. 1895, p. 70; March 24, 1903, Stats, and Amdts. 1903, p. 396; amended March 21, 1907, Stats, and Amdts. 1907, p. 780, Kerr's Stats, and Amdts. 1906-7, p. 425. 774 Tit. VIII.] COMPLETION— RELATION. §§ 1417, 1418 See Kerr's Cyc. C. C. for 10 pars, annotation. 69 C. 255, 369, 10 P. 674, 740 (cited with otlier sections); 75 C 464 486, 17 P. 246, 253 (cited with other sections); 80 C. 397, 400 4()1 4()3. 20 P. 563, 22 P. 198, 199 (cited with other sections); 82 C. 564, 566, 568, 569, 23 P. 146, 147 (cited with other sections); 99 C. 583, 587, 34 P. 324 (cited with other sections); 149 C. 496, 499 86 P.' 1081, 1082 (what is not necessary to valid appropria- tioA)- 5 C. A. 175, 181, 184, 89 P. 1001 (mere posting of notice is not appropriation, but that followed by construction of means of diversion is— recording of copy of notice); 115 F. 543, 547 (applied— validity of appropriation depends upon requisite steps having been taken). As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. As to time from which right of appropriation becomes vested, see Kerr's Cyc. C. C. § 1418 and note. § 1417. COMPLETION DEFINED. By "completion ' is meant conducting the waters to the place of intended use. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 69 C. 255, 369, 10 P. 674, 740 (cited with other sections); 75 C. 464,' 487,' 17 P. 246, 253 (cited with other sections); 149 C. 496 499 86* P. 1081, 1082 (what is not necessary to valid appro- priation); 115 F. 543, 547 (applied— validity of appropriation depends upon requisite steps having been taken). As to many miscellaneous matters as to irrigation and water- rights, see note §1410, ante. § 1418. DOCTRINE OF RELATION APPLIED. By a com- pliance with the above rules the claimant's right to the use of the water relates back to the time the notice was posted. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 69 C 255 370 10 P. 674, 740 (cited with other sections); 80 C. 397 401 4()7 408, 20 P. 563, 565, 22 P. 198, 199 (construed and applied 'with' other sections); 82 C. 564, 569, 23 P. 146, 147 (con- strued and applied with other sections); 99 C. 583. 586. 58 r. 34 P. 324 (construed and applied with other sections); 149 C. 496 499 86 P. 1081, 1082 (what is not necessary to valid appro- priation); 5 C. A. 175, 182. 89 P. 1001 (applied); 115 F. 543, 547 (applied— validity of appropriation depends upon requisite steps having been taken). As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. 775 §§ 1419-1421 CIVIL CODE. [Div.II,Pt.IV. § 1419. rOFEITURE. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies therewith. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 26 pars, annotation. 69 C. 255, 370, 10 P. 674, 740 (cited with other sections); 80 C. 397, 401, 403, 407, 408, 20 P. 563, 565, 22 P. 198, 199 (construed and applied with other sections); 82 C. 564, 569, 23 P. 146, 147 (construed and applied); 99 C. 583, 586, 587, 34 P. 324 (construed With other sections); 149 C. 496, 499, 86 P. 1081, 1082 (what is not necessary to valid appropriation). As to abandonment, see Kerr's Cyc. C. C. § 1411 and note. As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. § 1420. RIGHTS OF PBESEXT CLAIMANT. Persons who 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 there- after, proceed as in this title provided, or their right ceases. History: Enacted March 21, 1872. 4 P. 919, 924 (applied with other sections), 936 (cited in dis. op.); 69 C. 255, 370, 453, 10 P. 674, 740 (dis. op., cited with other sections); 75 C. 464, 487, 17 P. 246, 253 (cited with other sections); 149 C. 496, 499, 86 P. 1081, 1082 (what is not necessary to valid appropriation). As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. §1421. RECORDER TO KEEP BOOK O WHICH TO RECORD NOTICES. The recorder of each county must keep a book, in which he must record the notices provided for in this title. HLstory: Enacted March 21, 1872. 69 C. 255, 370, 10 P. 674, 740 (cited with other sections); 149 C. 496, 499 (what is not necessary to valid appropriation — erro- neously cited as § 1721), 86 P. 1081, 1082 (correct citation). As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. 776 Tit. VIII.] COMMENCING WORK. § 1422 § 1422. TIME WITHIN WHICH TO COMMENCE EXCAVA- TION ON PUBLIC RESERVATIONS. If the place of intended diversion or any part of the route of intended conveyance of water so claimed, be within, and a part of, any national park, forest reservation, or other public reservation, and be so shown in the notice of appropriation of said water, then the claimant shall have sixty days, after the grant of author- ity to occupy and use such park or reservation for such in- tended purpose, within which to commence the excavation or construction of said works; provided, that within sixty days after the posting of said notice of appropriation, as provided in section fourteen hundred and fifteen of the Civil Code, the claimant shall in good faith commence (and there- after diligently and continuously, except when temporarily interrupted by snow or rain, prosecute to completion) such surveys and other work as under the regulations govern- ing such park or reservation, may be required as prelimi- nary to, or for use with, an application for such authority; and provided also that the claimant shall in good faith on completion of said survey and preliminary work, apply to the officer, board, or body, having charge of such park or reservation, for such authority, and shall thereafter, prose- cute said application with reasonable diligence. History: Enacted March 21, 1872; repealed March 15, 1SS7. Stats, and Amdts. 1887, p. 114; present act, which is entirely new, passed March 24, 1903, Stats, and Amdts. 1903, p. 397. For statutes on subject of irrigation, see Hen. G. L. tit. Irrigation. See Kerr's Cyc. C. C. for 20 pars, annotation. 4 P. 919, 924, 925, 935 (dis. op.), 936 (dis. op.) (construed and applied with other sections); 69 C. 255, 300. 368, 370-376, 378. 379, 426-428, 439, 451 (dis. op.), 453 (dis. op.), 10 P. 674, 697. 740, 774, 775, 783 (construed and applied with other sections): 108 C. 72, 78, 41 P. 18, 30 L. 390 (applied). As to acts relating to irrigation, see Hen. G. I^. tit. "Irriga- tion." As to many miscellaneous matters as to irrigation and water- rights, see note § 1410, ante. As to respective rights of appropriators and riparian owners, see 43 A. D. 269. The annotations to tliis section are to the section as it orginally stood before its repeal, and not to the present section. 777 §§ 1424, 1425 CIVIL CODE. [Div.II.Pt.IV. TITLE IX. HYDRAULIC MINING. § 1424. Where hydraulic mining- can be carried on. § 1425. Meaning of hydraulic mining. § 1424. WHERE HYDRAULIC MINING CAN BE CARRIED ON. The business of hydraulic mining may be carried on within the state of California wherever an(i whenever the same can be carried on without material injury to the navi- gable streams, or the lands adjacent thereto. History: Enacted March 24, 1893, Stats, and Amdts. 1893, p. 337. See Kerr's Cyc. C. C. for 7 pars, annotation. HYDRAULIC MINING. Authority to commence, revocation, etc. by debris commission. — See Martin's Mines and Mining- Law § 523; 5 F. S. A. 65. California debris commission and regulation of — As to generally, see 5 F. S. A. 61-68. Same — Commissioner's act under direction of secretary of war. — See 5 F. S. A. 61 note. Same — ^Constitutionality of statute. — See 5 F. S. A. 61 note. Same — Injunction — By Federal court. — See 5 F. S. A. 61 note. Same — Same — ^By state court. — See 5 F. S. A. 61 note. Same — Injury to navigable stream. — See 5 F. S. A. 65 note. Definition of.— See Martin's Mines and Mining Law §513; 5 F. S. A. 63; 4 W. & P. 3376. Wilful injury to works, penalty. — See Martin's Mines and Mining- Law § 527. Without impounding- works. — See Martin's Mines and Min- ing Law § 518; F. S. A. Supp. 1907, p. 379. §1425. MEANING OE HYDRAULIC MINING. Hydraulic mining, within the meaning of this title, is mining by means of the application of water, under pressure, through a nozzle, against a natural bank. History: Enacted March 24, 1893, Stats, and Amdts. 1893, p. 337. See Kerr's Cyc. C. for 16 pars, annotation. Ill C. 571, 576, 44 P. 243 (applied). 778 ,j,j^ X.] LOCATING MINING CLAIM. § 1426 TITLE X. LOCATING MINING CLAIMS. TUNNEL RIGHTS. MILL SITES, ETC. [A new title added by Act of legislature March 13, 1909. to take effect and be in force on and after July 1, 1909.] § 1426. Who may locate mining claim, etc. Manner of loca- tion. § 1426a. Locator must define boundaries, how. § 1426b. Recording copy of notice. Fee of recorder. § 1426c. Location of placer claim. How made. § 1426d. Same. Recording copy of notice. Fee of recorder. § 1426e. Locator of tunnel right. Posting notice. Contents of notice. § 1426f. Boundary lines of tunnel. How established. § 1426g. Recording notice of tunnel location. Recorder's fee. § 1426h. Amended notice of location. Not to interfere with existing rights of others. § 1426i. Boundaries established by mineral surveyor. § 1426J. Mill site location. By proprietor of vein, etc. Amount of land and manner of making. § 1426k. Same. Recording copy of location notice. Fee of recorder. § 14261. Annual work or improvements. Amount required. § 1426m. Same. Affidavit, contents of. Certified copy of evi- dence of performance. § 1426n. Same. Recording affidavit. Fee for. § 14260. Co-owner. Notice to delinquent co-owner. Proof ot service § 1426p. Record of location. Evidence of same force as orig- § 1426q. Record of instruments. Certified copies admissible as evidence. |1426r. Mining district rules and regulations. Not affected by act. § 1426s. Development work. Failure or neglect to perform in manner and time required. Effect of. Sec. 2. Repealing clause. §U2(J. WHO MAY LOCATE MIMMJ CLAIM, KT(. MAN- NEK OF LOCATION. Any person, a citizen of the United States, or wlio has declared his intention to become such, who discovers a vein or lode of quartz, or other rock in place, 779 §§ 1426a, 1426b CIVIL CODE. [Div.II.Pt.IV. bearing gold, silver, cinnabar, lead, tin, copper, or other valu- able deposit, may locate a claim upon such vein or lode, by defining the boundaries of the claim, in the manner herein- after described, and by posting a notice of such location, at the point of discovery, which notice must contain: First — The name of the lode or claim. Second — The name of the locator or locators. Third — The number of linear feet claimed in length along the course of the vein, each way from the point of discovery, with the width on each side of the center of the claim, and the general course of the vein or lode, as near as may be. Fourth — The date of location. Fifth — Such a description of the claim by reference to some natural object, or permanent monument, as will identify the claim located. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 313. As to who may locate mining claims, etc., see Martin's Mining Law and Land Offlce Procedure, pp. 66-71. § 1426a. LOCATOR MUST DEFINE BOUNDARIES, HOW. The locator must define the boundaries of his claim so that they may be readily traced, and in no case shall the claim extend more than fifteen hundred feet along the course of the vein or lode, nor more than three hundred feet on either side thereof, measured from the center line of the vein at the surface. HLstory: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. As to marking boundaries, see Martin's Mining Law and Land Offlce Procedure, pp. 98-110. As to tunnel-sites, see Martin's Mining Law and Land Office Procedure, pp. 56-60. As to mill-sites, see Martin's Mining Law and Land Office Procedure, pp. 61-65. §14261). RECORDING COPY OF NOTICE. FEE OF RECORDER. Within thirty days after the posting of his notice of location upon a lode mining claim, the locator shall record a true copy thereof in the office of the county recorder 780 Tit. X.] PLACER CLAIM. §§ 1426c-1426e of the couiitj^ in which such claim is situated, for which service the county recorder shall receive a fee of one dollar. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. As to notices of location, recording, etc., see Martin's Mining- Law and Land Office Procedure, pp. 111-119, 682, 689, 694. § 1426c. LOCATION OF PLACER CLAIM. HOW UADE. The location of a placer claim shall be made in the following manner: By posting thereon, upon a tree, rock in place, stone, post or monument, a notice of location, containing the name of the claim, name of locator or locators, date of loca- tion, number of feet or acreage claimed, such a description of the claim by reference to some natural object or jiermanent monument as will identify the claim located, and by marking the boundaries so that they may be readily traced; provided, that where the United States survey has been extended over the land embraced in the location, the claim may be taken by legal subdivisions and no other reference than those of said survey shall be required and the boundaries of the claim so located and described need not be staked or monumented. The description by legal subdivisions shall be deemed the equivalent of marking. History: Enacted Marcli 13, 1909, Stats, and Amdts. 1909. p. 314. As to location of placer claim, see Martin's Mining Law and Land Office Procedure, pp. 44-55. §1426d. SAME. RE{(M{I)I>G COPY OF NOTICE. FEE OF RECOKDEK. Within thirty days after the posting of the notice of location of a placer claim, the locator shall record a true copy thereof in the office of the county recorder of the county in which sucli claim is situated, for which service the recorder shall receive a fee of one dollar. History: Enacted March 13, 1909, Stats, and Amdts. 1909. p. 314. §1426e. LOCATOR OF TUNNEL RIGHT. POSTING NOTICE. CONTENTS OF NOTICE. The locator of a tunnel right or location, shall locate his tunnel right or location by 781 §§ 1426f-1426h CIVIL CODE. [Div.II.,Pt.IV. posting a notice of location at the face or point of commence- ment of the tunnel, which must contain: First — The name of the locator or locators. Second — The date of the location. Third — The proposed course or direction of the tunnel. Fourth — A description of the tunnel, with reference to some natural object or permanent monument as shall identify the claim or tunnel right. History: Enacted March 13, 1909, Stats, and Amdts. *1909, p. 314. As to tunnel rights, location, etc., see Martin's Mining Law and Land Office Procedure, pp. 56-60. § 1426f. BOUNDARY LINES OF TUNNEL. HOW ESTAB- LISHED. The boundary lines of the tunnel shall be estab- lished by stakes or monuments placed along the lines at an interval of not more than six hundred feet from the face or point of- commencement of the tunnel to the terminus of three thousand feet therefrom. HLstory: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. As to marking boundaries of tunnel, see Martin's Mining Law and Land Office Procedure, § 86. §1426g. RECORDING} NOTICE OF TUNNEL LOCATION. RECORDER'S FEE. Within thirty days after the posting the notice of location of the tunnel right or location, the locator shall record a true copy thereof, in the office of the county recorder of the county in which such claim is situated, for which service the recorder shall receive a fee of one dollar. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. As to recording notice of location, see ante § 1426b, note. §142611. AMENDED NOTICE OF LOCATION. NOT TO INTERFERE WITH EXISTING RIGHTS OF OTHERS. If at any time the locator of any mining claim heretofore or here- after located, or his assigns, shall apprehend that his original location notice was defective, erroneous, or that the require- ments of the law had not been complied with before filing; or in case the original notice was made prior to the pas- 782 Tit. X.] BOUNDARIES— MILL-SITE. §§ 14261, 1426J sage of this act, and he shall be desirous of securing the benefit of this act, such locator, or his assigns, may file an additional otice, subject to the provisions of this act; pro- vided, that such amended location notice does not interfere with the existing rights of others at the time of posting and filing such amended location notice, and no such amended location notice or the record thereof, shall preclude the claimant, or claimants from proving any such title as he or they may have held under previous locations. HiMtory: Enacted Marcli 13, 1909, Stats, and Amdts. 1909, p. 315. As to amended notice of location, see Martin's Mining Law and Land Office Procedure, pp. 118, 414, 533, 761. §1426i. BOUNDARIES ESTABLISHED BY MINERAL SURVEYOR. Where a locator, or his assigns, has the bound- aries and corners of his claim established by a United States deputy mineral survey, or a licensed surveyor of this state, and his claim connected with the corner of the public or minor surveys of an established initial point, and in cor- porates into the record of the claim, the field notes of such survey, and attaches to and files with such location notice, a certificate of the surveyor, setting forth: First, that said survey was actually made by him, giving the date thereof; Second, the name of the claim surveyed and the location thereof; Third, that the description incorporated in the declaratory statement is sufficient to identify; such survey and certificate becomes a part of the record, and such record is prima facie evidence of the facts therein contained. History: Enacted Marcli 13, 1909, Stats, and Amdts. 19o9. i). 315. §1426j. MILL-SITE LOCATION. BY PROPRIETOR OF VEIN, ETC. A.MOUNT OF LAND AND MANNER OF 3IAK. ING. The proprietor of a vein or lode claim or mine, or the owner of a quartz mill or reduction works, or any person qualified by the laws of the United States, may locate not more than five acres of non-mineral land as a mill-site. Such 783 §§ 1426k, 1426m CIVIL CODE. [Div.II.Pt.IV. location shall be made in the same manner as hereinbefore required for locating placer claims. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 315. As to mill-site location, see Martin's Mining- Law and Land Office Procedure, pp. 61-65. § 1426k. SAarE. EECORDIXG COPY OF LOCATION NOTICE. FEE OF RECORDER. The locator of a mill site claim or location shall, within thirty days from the date of his location, record a true copy of his location notice with the county recorder of the county in which such location is situated, for which service the recorder shall receive a fee of one dollar. HLstory: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 315. § 14261. ANNUAL WORK OR I^IPROVEMENTS. AMOUNT REQUIRED. The amount of work done or improvements made during each year to hold possession of a mining claim shall be that prescribed by the laws of the United States, to-wit: One hundred dollars annually. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 315. As to annual work or improvement, see Martin's Mining- Law and Land Office Procedure, pp. 132-143. §1426ni. SAME. AFFIDAVIT, CONTENTS OF. CER- TIFIED COPY EVIDENCE OF PERFORMANCE. Whenever mine owner, company, or corporation shall have performed the labor and made the improvements required by law upon any mining claim, the person in whose behalf such labor was performed or improvements made, or some one in his behalf, shall within thirty days after the time limited for performing such labor or making such improvements make and have recorded by the county recorder, in books kept for that pur- pose, in the county in which such mining claim is situated, an affidavit setting forth the value of labor or improvements made, the name of the claim, and the name of the owner or claimant of said claim at whose expense the same was made 784 Tit. X.] CO-OWNER— NOTICE TO. §§ 1426n, 1426o or performed. Such affidavit, or a copy thereof, duly cer- tified by the county recorder, shall be prima facie evidence of the performance of such labor or the making of such improvements, or both. History: Enacted March 13, 1909, Stats, and Amdts. 1909. p. 315. As to form of affidavit of annual work, improvement, etc., see Martin's Mining Law and Land Office Procedure, pp. 534, 578, 579, 587, 770, 771, 772, 773. §U26ii. SAME. RECORDING AFFIDAVIT. FEE FOR. For recording the affidavit herein required, the county recorder shall receive a fee of fifty cents. History: Enacted Marcli 13, 1909, Stats, and Amdts. 1909, p. 316. §14260. CO-OWNER. NOTICE TO DELINQUENT CO-OWNER. PROOF OF SERVICE. Whenever a co-owner or co-owners of a mining claim shall give to a delinquent co-owner or co-owners the notice in writing or notice by pub- lication provided for in section twenty-three hundred and twenty-four. Revised Statutes of the United States, an affida- vit of the person giving such notice, stating the time, place, manner of service, and by whom and upon whom such service was made, shall be attached to a true copy of such notice, and such notice and alfHdavit nnist be recorded in the office of the county recorder, in books kept for that purpose, in the county in which the claim is situated, within ninety days, after the giving of such notice; for the recording of which said recorder shall receive the same fees as are now allowed by law for recording deeds; [Notice by publication— Proof of service.] Or if such notice is given by publication in a newspaper, there shall be attached to a printed copy of such notice an affidavit of the printer or his foreman, or principal clerk of such paper, stating the date of the first, last and each insertion of such notice therein, and where the newspaper was published during that time, and the name of such newspaper. Such affidavit and notice 785 § 14260 CIVIL CODE. [Div.II.Pt.IV. shall be recorded as aforesaid, within one hundred and eighty days after the first publication thereof. [Notice and certified copj — Prima facie eyideiice.] The original of such notice and affidavit, or a duly certified copy of the record thereof, shall be prima facie evidence that the delinquent mentioned in section twenty-three hundred and twenty-four has failed or refused to contribute his propor- tion of the expenditure required by that section, and of the service of publication of said notice; provided, the writing or affidavit hereinafter provided for is not of record. [Contribution by co-owner — Payment of costs — Receipt to delinquent.] If such delinquent shall, within the ninety days required by section twenty-three hundred and twenty-four, aforesaid, contribute to his co-owner or co-owners, his pro- portion of such expenditures, and also all costs of service of the notice required by this section, whether incurred for publication charges, or otherwise, such co-owner or co-owners shall sign and deliver to the delinquent or delinquents a writing, stating that the delinquent or delinquents by name has within the time required by section twenty-three hundred and twenty-four aforesaid, contributed his share for the year , upon the mine, and further stating therein the district, county and state wherein the same is situated, and the book and page where the location notice is recorded, if said mine was located under the provisions of this act; [Receipt to co-owner to be recorded — Fees.] Such writing shall be recorded in the office of the county recorder of said county, for which he shall receive the same fees as are now allowed by law for recording deeds. [Failure to give co-owner receipt^ — Penalty.] If such co-owner or co-owners shall fail to sign and deliver such writing to the delinquent or delinquents within twenty days after such contribution, the co-owner or co-owners so failing as aforesaid shall be liable to the penalty of one hundred dollars to be recovered by any person for the use of the delinquent or delinquents in any court of competent jurisdic- tion. [Failure to give receipt — Affidayit of contribution.] If such 786 ,j,j^ X.] RECORD OF LOCATION. §§ 1426p-1426r co-owner or co-owners fail to deliver such writing within said twenty days, the delinquent, with two disinterested persons having personal knowledge of such contribution, may make affidavit setting forth in what manner, the amount of, to whom, and upon what mine, such contribution was made. Such affidavit, or a record thereof, in the office of the county recorder, of the county in which such mine is situated, shall be prima facie evidence of such contribution. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. As to notice to delinquent co-owner, see Martin's Mining Law and Land Office Procedure, §§ 182-185. § 14261). RECORD OF LOCATION. EVIDENCE OF SAME 'force as original notice. The record of any location of a mining claim, mill site or tunnel right, in the office of the county recorder, as herein provided shall be received in evidence, and have the same force and effect in the courts of the state as the original notice. History: Enacted March 13, 1909, Stats, and Amdts. 1909. p. 317 As to record as evidence, see Martin's Mining Law and Land Office Procedure, § 166. §1426q. RECORD OF INSTRUMENTS. CERTIFIED COPIES ADMISSIBLE AS EVIDENCE. Copies of the records of all instruments required to be recorded by the provisions of this act, duly certified by the recorder, in whose custody such records are, may be read in evidence, under the same circumstances and rules as are now, or may be hereafter provided by law, for using copies of instruments relating to real estate, duly executed or acknowledged or proved and recorded. History: Enacted March 13, 1909, Stats, and Amdts. 1909. p. 317. § 1426r. MINING DISTRICT RULES AND REGULATIONS. NOT AFFECTED BY ACT. The provisions of this act shall not in any manner be construed as affecting or abolishing any 787 § 1426s CIVIL CODE. [Div.II,Pt.IV. mining district or the rules and regulations thereof within the State of California. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 317. As to miners' rules and regulations, see Martin's Mining Law and Land OfRce Procedure, pp. 8-17. § 1426s. DEVELOPMENT WORK. FAILURE OR NEGLECT TO PERFORM IN MANNER AND TIME REQUIRED. EFFECT OF. The failure or neglect of any locator of a mining claim to perform development work of the character, in the manner and within the time required by the laws of the United States, shall disqualify such locators from relocat- ing the ground embraced in the original location or mining, claim or any part thereof under the mining laws, within three years after the date of his original location and any attempted re-location thereof by any of the original locators shall render such location void. [Repealing clause.] Sec. 2. All acts and parts of acts in conflict with this act, are hereby repealed. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 317. As to development work, amount required, sufficiency, etc., see Martin's Mining- Law and Land Office Procedure, pp. 132-143. Defect in Act — Effect on validity of section. Tlie above sec- tion is enumerated in tlie title to tlie Act, but is not set out in the seratim enumeration of the new sections to be added to the code, contained in the introductory part of section one of the Act; yet tlie above new section purports to be a part of said section one of the Act. Wliat the effect of this omis- sion will be raises a novel question, which question is for tlie courts to determine. 788 DIYISIOX THIRD. Part I. Obligations in General §§ 1427-1543. II. Contracts, §§ 1549-1701. III. Obligations Imposed by Law, §§ 1708-1715. IV. Obligations Arising from Particular Transac- tions, §§ 1721-3268. 789 I I DiV.III,Pt.I,Tit.I.] INCURRING OF, ETC. §§ 1427, 1428 PART I. OBLIGATIONS IN GENERAL. Title I. Definition of Obligations, §§ 1427, 1428. II. Interpretation of Obligations, §§ 1429-1451. III. Transfer of Obligations, §§ 1457-1468. IV. Extinction of Obligations, §§ 1473-1543. TITLE I. DEFINITION OF OBLIGATIONS. § 1427. Obligation, what. § 1428. How incurred and enforced. § 1427. OBLIGATION, WHAT. An obligation is a legal duty, by which a person is bound to do or not to do a certain thing. History: Enacted March 21, 1872. 56 C. 217, 218 (construed with other sections); 134 C. 586, 588. 66 P. 856 (referred to); 54 F. 320, 331 (applied, with other sections, to cause of action surviving to administrator as assets in his hands). Obligation. — See Kerr's Cyc. C. C. § 1428 and note. Same — Damages for breach. — See Kerr's Cyc. C. C. § 1427 and note. §1428. now INCURRED AND ENFORCED. An obliga- tion arises either from: 1. The contract of the parties; or, 2. The operation of law. An obligation arising from operation of law may be en- forced in the manner provided by law or by civil action or proceeding. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 239. 791 § 1428 CIVIL CODE. [Div.III.Pt.I. See Kerr's Cyc. C. C. for 5 pars, annotation. 56 C. 217, 218 (construed with other sections); 110 C. 374, 385, 42 P. 896 (applied); 134 C. 586, 588, 66 P. 856 (referred to); 150 C. 667, 670, 89 P. 1083 (crystallizing principle that where right is given by statute without any prescribed remedy, it may be enforced by any appropriate method recognized by general law of procedure); 54 F. 320, 331 (applied, with other sections, to cause of action surviving administrator as assets in his hands). Obligation of contracts — Changing charter of corporation as impairing.— See 8 A. C. 614; also 3 A. C. 86, 88; 4 A. C. 93; 9 A. C. 1121; 10 Cent. Dig. col. 1619 §§271 et seq.; 4 Decen. Dig. p. 1679, §§ 113 et seq. 792 Tit.II.chs.I.IL] JOINT AND SEVERAL. \ § 1432 TITLE II. INTERPRETATION OF OBLIGATIONS Chapter I. General Rules of Interpretation, § 1429. II. Joint and Several Obligations, §§ 1430-14 III Conditional Obligations, §§ 1431-1442. IV. Alternative Obligations, §§ 1448-1451. CHAPTER I. GENERAL RULES OF INTERPRETATION. § 1429. General rules. § 1429. GENERAL RULES. The rules which govern the interpretation of contracts are prescribed by part two of this division. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted. History: Enacted March 21. 1872. CHAPTER II. JOINT OR SEVERAL OBLIGATIONS. § 1430. Obligations, joint or several, etc. § 1431. When joint. § 1432. Contribution between joint parties. §1430. OBLIGATIONS, JOINT OR SEVERAL, ETC. An obligation imposed upon several persons, or a right created in favor of several persons, may be : 1. Joint; 2. Several; or, 3. Joint and several. Hlstorj-: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 69 C. 616, 620, 11 P. 456, 458 (applied); 129 C. 239. 241, 243, 61 P. 1088 (construed and applied). 793 § 142R CIVIL CODE. [Div.III.Ptl. § 1431. WHEN JOINT. An obligation imposed upon sev- eral persons, or a right created in favor of several persons, is presumed to be joint, and not several, except in the special cases mentioned in the title on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 30 pars, annotation. 69 C. 616, 620, 11 P. 456, 458 (applied); 127 C. 142, 150, 78 A. S. 35, 42, 59 P. 390 (cited); 129 C. 239, 243, 61 P. 1088 (cited); (C. Dec. 26, 1902), 70 P. 1071 (construed witli other sections); 140 C. 535, 537, 74 P. 26 (cited); 3 C. A. 583, 589, 590, 591, 86 P. 825 (construed^section does not purport to determine rights of parties as between themselves — presumption may be rebutted). JOINT DEBTORS. Accord and satisfaction by one or more. — See 1 Cent. Dig. col. 461, § 24; col. 473, § 50 [d, e] ; col. 474, § 55. Act of joint debtor not a co-partner as ground for adjudica- tion in bankruptcy against the other. — See 6 Cent. Dig. col 167, §63. Action — For damages for joint tort. — See 6 L. 630. Same — May be brought against by whom. — See 64 L. 604. Attachment against. — 'See 5 Cent. Dig. col. 246, §51; col. 494, §279. Character of the liability of several persons whose independ- ent wrongs of the same kind contribute to enhance the degree or extent of the injury. — See 10 L. N. S. 167. Contribution between. — See 11 Cent. Dig. col. 2185, §§ 3, 4. Curing separate verdict rendered in action for joint tort. — See 10 L. N. S. 191. Due process in service on. — See 50 L. 595. Effect of transfer by one joint debtor, without indorsement, of worthless check or note to third person. — See 10 L. N. S. 549. Joint liability of master and servant — For negligence or nonfeasance of servant. — See 28 L. 441. Same — For tort of servant. — See 12 L. N. S. 669. Judgment against — As to generally, see 30 Cent. Dig. col. 582, §§ 415-426. Same — Two, service being on only one. — See 1 K 311. Part payment by one joint debtor as preventing bar of statute of limitations. — See 33 Cent. Dig. col. 1159. §§ 624-626. Release — Effect of judgment against one joint tort-feasor upon liability of the others. — See 58 L. 410. Same — Effect of judgment in favor of one defendant charged 794 Tit.II,clx.II.] CONTRIBUTION. § 1432 with negligence on liability, of co-defendant. — See 2 L. N. S. 764. Same — Effect of release of one joint tort-feasor on liability of others. — See 58 L. 293. Same — Effect of verdict for servant in action against master and servant for servant's misfeasance. — See 9 L. N. S. 880. Same — Effect on pre-existing judginents of statutes permitting release of one joint judgment debtor without affecting the others. — See 9 L,. N. S. 1066. Same — Judgment in action against part of joint obligators, effect to release or limit liability of other obligators. — See 43 L. 161. Same — rOf one joint debtor, effect on others. — See 5 L. 596. Same — Payment by one joint debtor, effect to distinct debt. — See 68 L. 514. Same — Previous release of joint tort-feasor by servant executing release on accepting benefits of relief fund. — See 11 L. N. S. 201. Same — Where prior proceedings affect subsequent proceedings in the same action. — See 43 L. 164. Same — Where some of debtors are non-residents. — See 43 L. 162. Same — Where the common-law rule is affected by statute. — See 43 L. 162. Removal of cause, because of separable controversy, of action based upon joint or joint and several liability. — See 5 L. N. S. 91. Service of process on. — See 40 Cent. Dig. col. 2575, § 49. § 1432. CONTRIBUTIOIf BETWEEN JOINT PARTIES. 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. History: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 84 pars, annotation. 117 C. 195, 202, 49 P. 8 (construed); 130 C. 245, 254, 62 P. 466, 600 (applied with other sections); 132 C. 480, 482, 64 P. 853 (applied); 135 C. 91, 93, 67 P. 7 (applied with §709); 6 C. A, 686, 688, 92 P. 1035 (applied to cosureties — contribution — sub- rogation). As to joint debtors generally, see note § 1431, ante. 795 §§ 1434, 1435 CIVIL CODE. [Div.III.Pt.I. CHAPTER III. CONDITIONAL. OBLIGATIONS. § 1434. Obligation, when conditional. § 1435. Conditions, kinds of. § 1436. Conditions precedent. § 1437. Conditions concurrent. § 1438. Condition subsequent. § 1439. Performance, etc., of conditions, when essential. § 1440. When performance, etc., excused. § 1441. Impossible or unlawful conditions void. § 1442. Conditions involving forfeiture, how construed. § 1434. OBLIGATION, >VHEN CONDITIONAL. An obliga- tion is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to condition concurrent, precedent, and subsequent, see Kerr's Cyc. C. C. §§1436, 1437, 1438 and notes; also note §1435, post. §1435. CONDITIONS, KINDS OF. Conditions may be precedent, concurrent or subsequent. Hi-story: Enacted March 21, 1872. CONDITIONS — GENERALLY. As to conditions concurrent, see Kerr's Cyc. C. C. § 1437 and note. As to conditional legacies, see Kerr's Cyc. C. C. §§ 1345, 1346 and notes. As to conditions of ownership, see Kerr's Cyc. C. C. §§ 707, 708 and notes. As to conditions precedent, see Kerr's Cyc. C. C. §§ 1346, 1436 and notes. As to conditions subsequent, see Kerr's Cyc. C. C. § 1438 and note. As to various kinds of conditions, see 8 Cyc. 558. Breach of — Who may take advantage of. — See 6 Encyc. L. 506. Conditional limitations. — See 6 Encyc. L. 514. Conditions against contesting will. — See 6 Encyc. L. 512. 796 Titll.ch.IIL] CONDITIONS, GENERALLY. §1435 Conditions subsequent— General nature.— See 6 Encyc. L. 504^ Same— As to what are— Effect of on a succeeding law or act of God preventing performance.— See 5 L. 422; 21 L. o8. Creation and construction of conditions precedent.— See . W & P. 1402. Distinctions as to conditions.— See 6 Encyc. L. 503. Exemptions and reservations.- See 6 Encyc. L. oId. E.xpress and implied conditions.— See 6 Encyc^ L. 500. Form and construction of conditions.— See 6 Encyc^ L. 501. In deeds— Conditions— As to generally, see 4 L. 3^3. Same— Same— Covenants distinguished from.— See 1 L. 380. ' Same-Same-Equitable relief against forfeiture for breach of —See 69 L. 836, 841. 842. Same-Same-Forbidding sale of intoxicating liquors upon premises. — See 4 L. 373. Same— Same— Forefeiture of estate for breach of— As manu- facture or sale of liquors.— See 2 L. 526; 5 L. 423. Same— Same— Liability of grantee upon, in deed poll.— See OO T ^96 Same— Same— Limited to use of land for a specified charitable or quasi public purpose. — See 19 L. 262. Same— Same— Riglit of re-entry for.— See 5 L. 4l4. Same— Same— Rule that must be express and certain.- bee ^%ame— Same— Transferability of right of entry for. broken.— See 60 L. 750-764. Same— Conditions and restrictions, validity of.— See 95 a. 'same— Conditions precedent and subsequent, impossibility of performance. — See 70 A. S. 289. ^ Same— Conditions precedent, what are.— See 102 A. S. 366; - Same— Conditions subsequent— As to generally, see 31 A. b. 46; 2 W. & P. 1402. ., tx- x. p Same— Same— Creation and construction of.— See . \\ . ^ ^- 1404 Same— Same— Distinguished from conditions precedent.— vSee 2 W. & P. 1401. Same— Same— Mode of taking advantage of breaches of.— bee 93 A. S. 372. ., . T? «•?- 79 Same— Same— What language creates.— See 57 A. K. b.i. "same-^Same— When and at whose instance may be avoided for breach of. — See 44 A. D. 743. Same— Same— Condition of payment of money^Equitable relief against forfeiture for breach of. — See 69 L. 842. 797 §§ 1436, 1437 CIVIL CODE. [Div.III.Pt.I. Same — Same — Conditions for support — Equitable relief against forfeiture for breach of. — See 69 L. 841. In wills — Conditions in restraint of marriage. — See 1 L. 387. Same — Same — Meaning of words "Unmarried," and "Without having been married", in will. — See 15 L. 292. In wills — Condition precedent, condition subsequent, and con- ditional devises — Operation and effect. — See 9 L. 165. In wills — Conditions precedent — What are. — See 102 A. S. 366. Same-^^Conditions providing forfeiture by contesting, validity. — See 68 L. 447-457. Same — Enforcement of condition. — See 9 L. 165. Same — Devise during widowhood. — See 1 L. 432; 9 L. 573. Same — Distinction between words of limitation and condition. — See 9 L. 165. Same — Occurrence of contingencies. — See 10 L. 816. Performance of conditions — As to generally, see 6 Encyc. L. 504. Restraint on alienation. — See 6 Encyc. L. 509. Restraint on marriage. — See 6 Encyc. L. 512. § 1436. CONDITIONS PRECEDENT. A condition prece- dent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 65 pars, annotation. 98 C. 433, 440, 33 P. 332, 334 (applied). As to conditions generally, see note § 1435, ante. As to conditions precedent, see 38 A. D. 54; 62 A. D. 54; 70 A. S. 829-837. As to impairment of state contracts, see 13 L. 170. As to impairment of vested rights, see 10 L. 405. As to waiver of condition precedent, see notes and briefs 6 L. 342; 60 L. 18. § 1437. CONDITIONS CONCURRENT. Conditions concur- rent are those which are mutually dependent, and are to be performed at the same time. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 53 C. 721, 723 (applied); 87 C. 49, 59, 25 P. 249, 252 (applied). As to conditions generally, see note § 1435, ante. 798 Tit.II,ch.III.] PERFORMANCE. §§ 1438, 1439 § 1438. CONDITION SUBSEQUENT. A condition subse- quent is one referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 44 pars, annotation. As to conditions generally, see note § 1435, ante. As to conditions subsequent in deeds, see Kerr's Cyc. C. C. §1109 and note pars. 10-13. As to construction of conditions subsequent, see Kerr's Cyc. C. C. §1438, note pt. IV; also 75 A. D. 171-173; 80 A. D. 189; 79 A. S. 747, 769. As to what words will or will not create condition subsequent, see 44 A. D. 741-759; 57 A. R. 63-68; 79 A. S. 747-769. §1439. PERFORMANCE, ETC., OF CONDITIONS, WHEN ESSENTIAL. Before any party to an obligation can require another party to perform any act under it, he must [1] fulfil all conditions precedent thereto imposed upon himself; and must [2] be able and offer to fulfil all conditions concurrent so Imposed upon him on the like fulfilment by the other party, except as provided by the next section. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 209 pars, annotation. 87 C. 49, 59, 25 P. 249, 252 (applied); 98 C. 377, 381, 33 P. 266 (construed); 107 C. 55, 65, 40 P. 45 (applied); 117 C. 669. 671, 49 P. 840 (applied); 133 C. 456, 458, 65 P. 968 (applied): 146 C. 580, 584, 80 P. 929 (he who seeks to enforce a contract must show that he lias complied with conditions and agreements of contract on his part to be performed); 153 C. 234, 240, 94 P. 889 (no right of redeinption of pledge arises until when); 4 C. A. 361, 367, 88 P. 287 (obligation of contract is not condition precedent unless made so, how). As to admissibility of evidence of waiver or in excuse of per- formance, see 62 A. D. 54. As to averment of performance of conditions, see Kerr's Cyc. C. C. § 1439, note pars. 35-45. As to avoidance of deed on breacli of condition subsequent, see 44 A. D. 743, 759. As to conditions generally, see note § 1435, ante. As to dependent and independent covenants and conditions, see 5 L. ed. 600. 799 § 1440 CIVIL CODE. [Div.III.Pt.I. As to duration of condition subsequent and who bound by, see 44 A. D. 745. As to effect of breach of condition subsequent, see 44 A. D. 754, 755. As to evidence of waiver or in excuse of performance, see 62 A. D. 55. As to excuses for non-performance, see Kerr's Cyc. C. C. § 1441 and note. As to forfeiture of a corporate franchise, see Kerr's Cyc. C. C. § 1439, note par. 75. As to impossibility of performance, see Kerr's Cyc. C. C. § 1441 and note. As to improvements. — See Kerr's Cyc. C. C. § 1439, note par. 146. As to independent conditions, see 5 L. ed. 600. As to performance and time in wliich condition must be per- formed, see 44 A. D. 748. As to performance of conditions precedent, see 62 A. D. 54. As to refusal to perform and its effect, see Kerr's Cyc. C. C. § 1439, note pars. 29-34. As to relief in equity against forfeiture, see 68 A. D. 85-88. As to substantial compliance, see 9 L. 52. As to time being of the essence of the contract, see note 2 Edw. Ch. (N. Y.) 78, 6 L. ed. 315. As to vesting of legacy upon failure to perform conditions subsequent, see 78 A. D. 234-336. As to waiver and excuse of performance, see 44 A. D. 745. As to waiver and excuse for non-performance, see 44 A. D. 745-748. As to what constitutes breach of condition subsequent, see 44 A. D. 749. As to when entire performance is necesary and where recovery can be had for past performance, see 72 A. D. 454. As to when equity will relieve, though time is of essence of contract, see note 2 Edw. Ch. (N. Y.) 78, 6 L. ed. 315. Architects' certificates, see Kerr's Cyc. C. C. § 1439, note pars. 8, 9, 10, 203-209 this note. §1440. WHEN PERFORMANCE, ETC., EXCUSED. 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, sucli other party is entitled to enforce the obligation without previously per- 800 Tit.II.Ch.III.] CONDITIONS VOID. § 1441 forming or offering to perform any conditions upon his part in favor of the former party. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 88 C. 537, 541, 26 P. 355, 356 (applied); 54 C. 587 (applied); 128 C. 250, 253, 60 P. 860 (applied); 144 C. 397, 401, 77 P. 996 (If party declares himself not bound by contract, he cannot set up failure in either demand or tender); 148 C. 357, 360, 83 P. 151, 113 A. S. 276, 3 L. N. S. 908, 7 A. C. 541 (section has no applica- tion to cases where performance is not yet due upon part of party who has previously given notice that he will not perform when performance is due); 3 C. A. 190, 192, 85 P. 665 (cause of action accrues when defendants refuse to perform); 7 C. A. 241, 243, 94 P. 82, 83 (applied). As to conditions generally, see note § 1435, ante. As to demand and notice to perform, see Kerr's Cyc. C. C. § 1439, note pars. 156 et seq. As to right of party discharged by refusal to recover, see Kerr's Cyc. C. C. § 1440, note par. 9. § 1441. DIPOSSIBLE OR UJVLAWFUL CONDITIONS VOID. A condition in a contract, the fulfilment of which is [1] im- possible or [2] unlawful, within the meaning of the article on the object of contracts, or [3] which is repugnant to the nature of the interest created by the contract, is void. Hiistory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 69 pars, annotation. As to act of party himself causing impossibility, sec Kerr's Cyc. C. C. § 1441, note pars. 24, 25. As to conditions generally, see note § 1435, ante. As to constitutionality of statutes limiting the right to con- tract, see 46 A. S. 334. As to constitutionality of statutes restricting contract and business, see 21 L. 789. As to the effect of a succeeding law or act of God upon a condition subsequent, as preventing its perform.ance, see 21 L. 58. As to impossibility of performance of conditions precedent and subsequent, see 62 A. D. 54, 70 A. S. 829-837. As to imprisonment causing impossibility, see Kerr's Cvc. C. C. § 1441, note par. 28. As to liability upon breach of condition by reason of its impos- sibility, see 31 A. R. 100, 70 A. S. 829-837. Kerr's C. C— 26 801 § 1442 CIVIL CODE. [Div.III.Pt.I. As to relief against forfeiture on conditions precedent and subsequent, see Kerr's Cyc. C. C. § 1439 note pars. 121-137. As to statutory restriction upon contracts between master and servant, see 14 L. 325. Act of God as an impossibility of performance, see Kerr's Cyc. C. C. § 1441, note par. 26. §1442. CONDITIONS INVOLVING FORFEITURE, HOW CONSTRUED. A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 78 C. 49, 56, 20 P. 41, 44 (applied); 87 C. 34, 37, 25 P. 153, 154 (construed); 92 C. 514, 522, 27 A. S. 158, 28 P. 593, 595 (applied); 110 C. 590, 595, 42 P. 976 (applied); 128 C. 285, 288, 60 P. 855 (applied); 130 C. 16, 19, 62 P. 295 (applied); 145 C. 181, 184, 78 P. 638 (conditions providing- for forfeiture of estate are to be construed liberally in favor of holder of estate, and strictly against enforcement of forfeiture); 148 C. 223, 227, 82 P. 964, 113 A. S. 223, 7 A. C. 396 (applied to insurer who prepared policy of fire insurance). As to conditions generally, see note § 1435, ante. As to relief in case of forfeiture, see Kerr's Cyc. C. C. § 3275. As to relief against forfeiture in equity, see 68 A. D. 85-88; also Kerr's Cyc. C. C. § 1439 and note. 802 Tit.II.ch.IV.] OBLIGATIONS. §§ 1448-1450 CHAPTER IV. ALTERNATIVE OBLIGATIONS. § 144S. 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. >VHO HAS THE RIGHT OF SELECTION. If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms -of the obligation. HlHt«i.ry: Enacted March 21, 1872. See Kerr's Cyc. C. C for 2 pars, annotation. 119 C. 599, 601, 51 P. 962. § 1449. RIGHT OF SELECTION, HOW LOST. If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose, or, if none is so fixed, before the time at which the obligation ought to be performed, the right of selection passes to the other party. History: Enacted March ill, 1872. Contract in alternative, failure to elect, effect of. — See Kerr's Cyc. C. C. § 1449 and note. §14o0. ALTERNATIVES INDIVISIBLE. The party hav- ing 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. History: Enacted March 21, 1872. See Kerr's Cyc C. C. for 2 pars, annotation. 82 C. 46, 50, 22 P. 1131 (applied). 803 § 1451 CIVIL CODE. [Div.III,Pt.I. § 1451. NULLITY OF ONE OB MORE OF ALTERNATIVE OBLIGrATlONS. If one of the alternative acts required by an obligation is such as the law will not enforce, or becomes unlawful or impossible of performance, the obligation is to be interpreted as though the other stood alone. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 55 C. 564, 566 (meaning of "instrument" — It does not embrace what); 123 C. 240, 243, 55 P. 804. 804 rpij. jjj "I BURDEN— RIGHTS. §§ 1407, 1458 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. [Covenant for benefit of property.] § 1463. Same. [Covenants to pay rent, etc.] § 1464. What covenants run with land when assigns are named. § 1465. Who are bound by covenants. § 1466. Who are not. § 1467. Apportionment of covenants. §1468. Transfer of obligations; covenants to run with land. §1457. BUKDEN OF OBLIGATION NOT TRANSFER- ABLE. The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not other- wise, except as provided by section fourteen hundred and sixty-six. History: Enacted Mircli 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 84 C 281 ''89 18 A. S. 179, 24 P. 42, 45 (cited and construed): 86 C 574 576, 577, 21 A. S. 63, 25 P. 52, 53 10 L. 369 (applied and construed); 96 C. 404, 407, 408. 31 P. 266 (construed); (C.^Oct. 3, 1894) 38 P. 39, 40 (applied and construed); 124 C. 255. 257. 56 P. 1109 "(applied and construed); 135 C. 636, 643, 68 P. 92 (applied and cited); 1 C. A. 587, 591, 82 P. 542 (applied to assignment of charter party); 1 C. A. 659, 664, 82 P. 1075 (party dead cannot consent— heir is entitled to benefit of obligations descending to him). § 1458. RIGHT ARISING OUT OF OBLIGATION TRANS- FERABLE. A right arising out of an obligation is the prop- erty of the person to whom it is due and may be transferred as such. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 84 C 281. 283, 288. 18 A. S. 179. 24 P. 42. 43. 44 (applied and construed with §§1044 and 1059); (C. Dec. 22. 1900). 63 P. 168. 806 § 1459 CIVIL CODE. [Div.III.Pt.I. 169, 170 (applied and cited with §954); 144 C. 256, 260, 79 P. 451, 1 A. C. 850 (applied to contract granting exclusive option to purchase land); 3 C. A. 561, 568, 86 P. 820 (rights and things arising out of agreement concerning shipment of wheat, includ- ing profits, are capable of assignment); 54 F. 320, 331 (applied, with other sections, to cause of action surviving to administra- tor as assets in his hands). As to action by assignee, see Kerr's Cyc. C. C. P. § 368 and note. As to assignment by heir, see 'Kerr's Cyc. C. C. § 2909. As to assignment of non-negotiable written contracts for payment of money or personal property, see Kerr's Cyc. C. C. § 1459 and note. As to assignment of things in action generally, other than those arising out of breach of written contracts, see Kerr's Cyc. C. C. § 954 and note. §1459. NON-NEGOTIABLE INSTRUMENTS MAT BE TRANSFERRED. A non-negotiable written contract for the payment of monej^ 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 maker at the time of the indorsement. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 73 pars, annotation. 55 C. 126, 129 (applied with C. C. P. §368); 55 C. 564, 566 (referred to with other sections); 84 C. 281, 283, 18 A. S. 179, 24 P. 42, 43 (referred to with §§1044, 1458); 86 C. 574, 576, 21 A. S. 63, 25 P. 52, 53, 10 L. 369 (construed); 94 C. 141, 145, 29 P. 866, 867 (construed); 101 C. 286, 288, 35 P. 876 (construed With C. C. P. §368); 107 C. 55, 62, 40 P. 45 (construed with C. C. P. §§368, 440); 108 C. 25, 29, 41 P. 24 (applied); 129 C. 409, 412, 62 P. 36 (applied with C. C. P. §1184); 132 C. 582, 584, 64 P. 1097 (applied); 133 C. 681, 685, 65 P. 1110 (applied with C. C. P. §368); 134 C. 408, 410, 66 P. 494 (applied with §324); 69 P. 228, 232 (applied); 144 C. 19, 35, 77 P. 712, 713 (applied — assignment of mortgage); 1 C. A. 587, 591, 592, 82 P. 542 (charter party and contract may be transferred). As to assignment of judgment at common law, form of trans- fer, validity and effect, and rights of assignee, see 54 A. D. 366, 369. As to city, county, and state warrants, see Kerr's Cyc. C. C. § 1549, note pars. 45, 49. 806 Tit. III.] COVENANTS. §§1460,1461 As to liability of assignor as indorser, see Kerr's Cyc. C. C. § 1549, note par. 25. As to parties — Assignee is proper party to sue. — See Kerr's Cyc. C. C. P. § 367 and note. Counterclaim not barred by assignment, when. — See Kerr's Cyc. C. C. P. § 440 and note. Notice to party liable is necessary upon assignment of chose in action, when. — See Kerr's Cyc. C. C. § 954 and note. §1460. COTENANTS RUNNING WITH LAND, WHAT. 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. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 80 C. 114, 118, 13 A. S. 112, 22 P. 53, 54 (referred to in discus- sion); 80 C. 530, 534, 538. 22 P. 275, 276, 277, 278 (referred to in discussion); 119 C. 283, 294, 63 A. S. 108, 51 P. 2, 542 (referred to with §1113); 1 C. A. 701, 704, 82 P. 1082 (what covenants affect title to land). As to liability of heirs and assigns, see Kerr's Cyc. C. C. §§ 1465, 1466 and notes. Privity of estate between grantor and grantee's assigns. — See 10 A. S. 557-565. § 1461. WHAT COVENANTS RUN WITH LAND. The only covenants which run with the land are those specified in this title, and those which are incidental thereto. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 80 C. 114, 118, 13 A. S. 112, 22 P. 53, 54 (referred to in discus- sion); 80 C. 530, 534, 22 P. 275 (referred to in discussion with §§1460 and 1462-1466); 120 C. 571, 573, 65 A. S. 203, 52 P. 813 (referred to with following sections); 136 C. 36, 42, 68 P. 308 (referred to with § 1462); 1 C. A. 701, 704, 82 P. 1082 (what cov- enants affect title to land). As to covenants running with land, see Kerr's Cyc. C. C. P. §§ 1460, 1462-1464 and notes; also 47 A. D. 577. 807 §§ 1462-1464 CIVIL CODE. [Div.III.Pt.I. §1462. SAME. [COYENANT FOR BENEFIT OF PROP- ERTY.] 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 80 C. 114, 118, 13 A. S. 112, 22 P. 53, 54 (construed and applied); 80 C. 530, 534, 22 P. 275 (construed and applied); 92 C. 93, 95, 28 P. 103 (construed); 136 C. 36, 41, 42, 68 P. 308 (construed and applied); 152 C. 618, 627, 93 P. 881 (what covenants only run with land); 1 C. A. 701, 704, 82 P. 1082 (what covenants affect title to land). § 1463. SAME. [COYENAJ^TS TO PAY RENT, ETC.] The last section includes covenants "of warranty," "for quiet en- joyment," or for further assurance on the part of a grantor, and covenants for the payment of rent, or of taxes or assess- ments upon the land, on the part of a grantee. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 152 C. 618, 627, 93 P. 881 (what covenants only run with land); 5 C. A. 475, 480, 90 P. 962 (covenant to pay rent runs with land). §1464. WHAT COYENANTS RUN WITH LAND WHEN ASSIGNS ARE NAMED. A covenant for the addition of some new thing to real property, or for the direct benefit of some part of the property not then in existence 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 66 C. 416, 420, 5 P. 910 (construed and applied); 80 C. 530, 534, 22 P. 275 (referred to with §§60-63, 65, 66); 152 C. 618, 627, 93 P. 881 (what covenants only run with land). As to covenants for direct benefit of property, see Kerr's Cyc. C. C. § 1462 and note. rpj^. jjj -J WHO BOUND BY. §§ 1465-1467 § 1465. WHO ARE BOUND BY COYEXANTS. A covenant running with tlie land binds those only who acquire the whole estate of the covenantor in some part of the property. History: Enacted March 21, 1872. 80 C. 530, 534, 22 P. 275 (referred to by the court in the dis- cussion with §§ 1460-1464 and 1466). See Kerr's Cyc. C. C. § 1461 and note par. 8. § U66. WHO ARE NOT. No one, merely by reason of hav- ing acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits. Hi.slory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 66 C. 416, 421, 5 P. 910 (referred to in discussion); 80 C. 530, 534, 22 P. 275, 276, 277 (referred to with §§1460-1465); 96 C. 404. 407', 31 P. 266 (referred to as part of §1457); 116 C. 84, 88, 58 A. S. 135, 47 P. 935 (construed and applied). § 1467. APPORTIONMENT OF COYENANTS. Where sev- eral persons, holding by several titles, are suljject 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 respect- ively, if such value can be ascertained, and if not, then according to their respective interests in point of quantity. History: Enacted March 21, 1872. As to apportionment on partial destruction of leased premises, see Kerr's Cyc. C. C. §§ 1467, 1514 and notes; also 30 L. 716; 36 L. 424; 61 A. S. 570-573. As to apportionment of rent notes not duo at life tenant's death, see 48 L. 735. Apportionment of loss between tenant and remainderman.— See 35 L. 790. For general decision of doctrine of apportionment of rent, see 18 Encyc. L. 289. 809 § 1468 CIVIL CODE. [Div.III,Pt.I. §1468. TRANSFER OF OBLIGATIONS; COVENANTS TO RUN WITH LAND. A covenant made by the owner of land with the owner of other land to do or refrain from doing some act on his own land, which doing or refraining is expressed to be for the benefit of the land of the covenantee, and which is made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with both of such parcels of land. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 610. 810 Tit IV ch.L] PERFORMANCE. § 1473 TITLE IV. EXTINCTION OF OBLIGATIONS. Chapter I. Performance, §§ 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. OBLIGATION EXTINGUISHED BY PERFORM- ANCE. 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, extin- guishes it. HLstorr: Enacted March 21, 1872; amended by Code Commis- sion, Act April 16, 1901, Stats, and Amdts. 1900-1, p. 407. held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 128 pars, annotation. ^. . _ ^ 76 C. 465, 468, IS P. 645, 646 (construed and applied), 8b <^. 184 187 (applied but erroneously cited as §1473 C. C. P.) P 1005 (same error); 62 P. 68, 69 (applied to indorser s pay- ment of corporation note, and who took an assignment thereof from payee); 133 C. 574, 577, 579-582, 6^P,-1094 (construed and applied)- 134 C. 580, 582, 66 P. 785 (applied); 1 C. A. 251, 253, 81 P 1115 (construed with other sections and applied to payment 811 §§1474,1475 CIVIL CODE. [Div.III.Pt.I. by surety, of note on which he appealed as co-maker; 1 C. A. &59, 664, 82 P. 1075 (promissory notes — distinction between "suc- cession" and "transfer of obligation"). As to accord and satisfaction, see post §§ 1521-1524 and notes; see also note §1521 post; and 20 L. 785-812. As to burden of proof when note, check, etc., are taken for debt, see Kerr's Cyc. C. C. § 1478 and note. As to estoppel by acceptance to object to performance, see Kerr's Cyc. C. C. § 1477 and note par. 9. As to extinguishment of negotiable instruments by payment, see Kerr's Cyc. C. C. P. § 1473, note, par. 2, and § 3164 and note. As to payment of negotiable instrument to payee after trans- fer to bona fide holder, see Kerr's Cyc. C. C. § 3164 and note. As to place where negotiable instrument must be paid, see Kerr's Cyc. C. C. § 3100 and note. As to plea of satisfaction, see Kerr's Cyc. C. C. § 1523 and note. As to question of fact where note, check, or like is taken for debt, see Kerr's Cyc. C. C. § 1478 note par. 35. As to railroad fare — Payment and tender of, see Kerr's Cyc. C. C. §§ 2187-2190 and notes. As to surrender of negotiable instrument on payment, see Kerr's Cyc. C. C. § 3137 and note. As to tender under protest against liability, see Kerr's Cyc. C. C. § 1494 and note. Mortgage discharged by payment of debt. — See 76 A. D. 76; 51 A. S. 689; 54 A. S. 300. Surety discharged by payment by principal. — See Kerr's Cyc. C. C. § 2839 and note. §1474. PERFORHTANCE BY O^E OF SEVERAL JOI?fT DEBTORS. Performance of an obligation, by one of several persons who are jointly liable under it, extinguishes the lia- bility of all. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 1 C. A. 659, 664, 82 P. 1075 (cited); 2 C. A. 659, 660, 84 P. 466, 468 (extinguishment of judgment). As to release and discharge, see Kerr's Cyc. C. C. §§ 1541- 1543 and notes. As to waiver in performance by one, see Kerr's Cyc. C. C. § 1474, note par. 7. § 1475. PERFORMANCE TO ONE OF JOINT CREDITORS. An obligation in favor of several persons is extinguished by 812 I Tit.IV,ch.I.] PARTIAL PERFORMANCE. §| 1476, 1477 performance rendered to any of them, except in the case of a deposit made by owners in common, or in joint ownership, wliich is regulated by the title on deposit. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 96 C. 275, 278, 31 A. S. 201, 31 P. 290 (applied); 131 C. 421, 425, 63 P. 732 (applied). § U76. EFFECT OF DI«E('TIO\S BY ( KEDITORS. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particu- lar manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 76 C. 639, 644, 18 P. 805, 806, 807 (indefinite citation— it refers to § 1476 C. C. P.). §1477. PARTIAL TERFORMA.Nt E. A partial perform- ance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is vol- untarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor cannot avoid retaining it without injuring his own property, his retention thereof is not presumed to be voluntary. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 88 C. 543, 552, 26 P. 515, 518 (applied): 4 C. A. 361, 368, 88 P. 287 (partial breach of contract — forfeiture of plaintiff's cor- responding right — relief in equity); 4 C. A. 527, 532, 88 P. 493 (applied to contract to furnish pumping plant of specified capacity). As to entirety of contract — Complete performance, when essential to cause of action ex contractu. — See 59 A. S. 277-295. As to impossibility of performance, see Kerr's Cyc. C. C. § 1511 and note. As to offer of partial performance, see Kerr's Cyc. C. C. § 1486 and note; also 100 A. S. 390 et seq. 813 §§ 1478, 1479 CIVIL CODE. [Div.III,Pt.I. As to partial payment by one of joint obligors, see Kerr's Cyc. C. C. § 1474 and note par. 4. As to prevention of performance, see Kerr's Cyc. C. C. § 1512 and note. As to prevention of full performance, see Kerr's Cyc. C. C. § 1511 and note. Answer — Admission of partial performance. — See Kerr's Cyc. C. C. § 1473 and note pars. 39 et seq. § 1478. PAYMENT, WHAT. Performance of an obligation for the delivery of money only, is called payment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 47 pars, annotation. 99 C. 89, 94, 37 A. S. 32, 33 P. 737, 739 (referred to); 69 P. 481, 482 (cited); 1 C. A. 659, 664, 82 P. 1075 (cited with other sections). As to payment by check, see note 7 L. 442, 443. Partial payment.- — See Kerr's Cyc. C. C. § 1477 and note pars. 16 et seq. §1479. APPLICATION OF GENERAL PERFORMANCE. Where a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally applicable to two or more of such obligations, such performance 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 particular 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 performance, 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 other- wise directed by the debtor, apply 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. 3. If neither party makes such application within the time 814 Tit.IV.ch.I.] APPLICATION. § 1479 prescribed herein, the performance must be applied to the extinction of obligations in the following order; and, if there be more than one obligation of a particular class, to the extinction of all in that class, ratably: 1. Of interest due at the time of the performance. 2. Of principal due at that time. 3. Of the obligation earliest in date of maturit}'. 4. Of an obligation not secured by a lien or collateral undertaking. 5. Of an obligation secured by a lien or collateral under- taking. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 239, 240; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 407, held uncon- stitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 58 pars, annotation. 69 C. 120, 121, 10 P. 321, 322 (applied); 81 C. 56, 58, 22 P. 297 (applied); 81 C. 398, 406, 22 P. 871, 873 (referred to); 88 C. 384. 391, 392, 26 P. 601, 603 (construed); 96 C. 441. 443, 31 P. 457 (construed and applied); 97 C. 290, 292, 32 P. 248 (applied); 114 C. 620, 625, 46 P. 613 (cited); 119 C. 283, 302, 63 A. S. 108, 51 P. 2, 542 (referred to); 125 C. 472, 488, 73 A. S. 64, 58 P. 164 (subd. 3 applied to deposits made by corporation); 141 C. 335, 338, 74 P. 999 (applied); 144 C. 776, 782, 78 P. 254 (referred to); 145 C. 30, 34. 78 P. 245 (defendant is equitably bound, when, to apply money to payment of debt); 2 C. A. 47, 48, 83 P. 70 (debtor's right to direct application of payments); 4 C. A. 470, 473, 474, 88 P. 497 (application of payment ratably where various items of account belong to one class). As to application on several notes or barred note, see 14 L. 208. Application of payments. — See 13 A. D. 505; 14 A. D. 694: 96 A. S. 44-82; 12 L. 712. 815 § 1485 CIVIL CODE. [Div.III,Pt.I. CHAPTER II. OFFER OF PERFORMANCE. § 1485. Obligation extinguished by offer of performance. § 1486. 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. § 1491. Same. [When obligation does not fix time.] § 1492. Compensation after delay in performance. § 1493. Offer to be made in good faith. § 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. § 1505. Creditor's retention of thing which he refuses to accept. §1485. OBLIGATION EXTOGUISHED BY OFFER OF PERFORMAIVCE. An obligation is extinguished by an offer of performance, made in conformity to the rules herein pre- scribed, and with intent to extinguish the obligation. History: Enacted March 21, 1872. ' See Kerr's Cyc. C. C. for 66 pars, annotation. 11 P. 782 (applied); 83 C. 246, 259, 23 P. 869, 873, 17 A. S. 233 (applied to tender of payment of premium on policy of fire insurance); 98 C. 377, 382, 33 P. 266, 267 (applied); 80 F. 54, 62 (mode of offering performance applies to what offers). As to concurrent and dependent acts, see Kerr's Cyc. C. C. § 1511 and note. As to necessity of giving indemnity in such case, see 13 A. D. 481; 24 A. S. 566. As to payment by note, etc., see Kerr's Cyc. C. C. § 1478 and note par. 15. 816 Tit.IV.ch.II.] BY WHOM MADE. §§ i486, 1487 As to penalty — Offer to pay being insufficient. — See Kerr's Cyc. C. C. § 1486 and note par. 10. As to sufficiency and effect of tender, see 77 A. D. 470-491. Ability and willingness to perform essential. — See Kerr's Cyc. C. C. § 1495 and note. Assessment for reclamation of swampland — Tender of war- rant. — See Kerr's Cyc. Pol. C. § 3465 and note. Compromise — Offer of. — See Kerr's Cyc. C. C. P. §§ 997, 2078 and notes. Conditional offer. — See Kerr's Cyc. C. C. § 1494 and note. Cost not recoverable when tender made before action, if suffi- cient. — See Kerr's Cyc. C. C. P. § 1030 and note. Good faith necessary. — See Kerr's Cyc. C. C. § 1493 and note. Indemnity for lost instrument — Costs. — See 45 A. D. 307; 53 A. D. 513. Partial performance — Offer of insufficient. — See Kerr's Cyc. C. C. § 1486 and note. Production of thing unnecessary unless offer accepted. — See Kerr's Cyc. C. C. § 1496 and note. Railroad fare — Tender and payment of. — See Kerr's Cyc. C. C. §§ 2187-2190 and notes. Surety discharged by tender by principal where sufficient. — See Kerr's Cyc. C. C. § 2839 and note. Time when offer must be made. — See Kerr's Cyc. C. C. §§ 1490, 1491 and notes. Written offer equivalent to payment. — Sec Kerr's Cyc. C. C. P. § 2074 and note. § 14S6. OFFER OF PARTIAL PERFORMANCE. An offer of partial performance is of no effect. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 127 C. 480, 483, 59 P. 901 (referred to as inapplicable): 80 F. 54, 62 (mode of offering performance applies to what offers). Waiver of obj(!Ction to amount. — Sro Kim'i's (""ye. C C\ ? I'lOl note. § 14S7. IJY >VnO>r TO BE MADE.- An offer of perform- ance must be made by the debtor, or by some person on his behalf and with his assent. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 63 C. 129, 139, 49 A. R. 83 (referred to erroneously in dis. op. — see §1093 C. C); 119 C. 283, 303. 63 A. S. 108, 51 P. 2, 542 (re- 817 §§1488,1489 CIVIL CODE. [Div.III.Pt.I. ferred to); 80 F. 54, 62 (mode of offering performance applies to what offers). As to duty of debtor to seek creditor and make tender of amount due, see 86 A. D. 520, 521. § 1488. TO ^VHOar TO BE MADE. An offer of perform- ance 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 under 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. Hi-story: Enacted March 21, 1872; amended March 30, 1874, Stats, and Amdts. 1873-4, p. 240. See Kerr's Cyc. C. C. for 9 pars, annotation. 125 C. 687, 690, 58 P. 308 (applied); 141 C. 314, 316, 74 P. 855. 65 L. 90 (promise to repay money advanced by bank is a prom- ise to pay at the bank); 80 F. 54, 62 (mode of offering perform- ance applies to what offers). As to place where tender should be made, see Kerr's Cyc. C. C. § 1489 and note; also 77 A. D. 479. § 1489. WHERE OFFER MAY BE MADE. In the absence of an express provision to the contrary, an offer of perform- ance 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 diligence, be found within 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 98 C. 406, 407, 33 P. 273 (referred to); 113 C. 21, 24, 45 P. 12 (cited); 125 C. 215, 219, 57 P. 989 (cited); 141 C. 314, 316, 74 P. 855, 65 L. 90 (promise to repay money advanced by bank is 818 Tit.IV.ch.II.] WHEN OFFER MADE. §§ 1490-1492 a promise to pay at the bank); 80 F. 54, 62 (mode of offering performance applies to what offers). As to place of tender, see Kerr's Cyc. C. C. § 1488 note pars. 8, 9, and 26 A. D. 546. Sale of goods — Place of delivery. — See Kerr's Cyc. C. C. § 1754 and note. § 1490. WHEN OFFER MUST BE MADE. Where an obli- gation fixes a time for its performance, an offer of perform- ance must be made at that time, within reasonable hours, and not before nor afterwards. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 23 pars, annotation. 74 C. 250, 255, 5 A. S. 435, 14 P. 369, 371, 15 P. 773 (referred to); 86 C. 367, 373, 24 P. 1072, 1073 (referred to as inapplicable); 123 C. 1, 20, 69 A. S. 17, 55 P. 713, 43 L. 199 (applied); 127 C. 114, 117, 59 P. 290 (referred to); 80 F. 54, 62 (mode of offering performance applies to what offers). As to computation of time, see Kerr's Cyc. C. C. § 10 and note. As to holidays and Sundays, see Kerr's Cyc. C. C. §§7, 10 and notes. §1491. SAME. [WHEX OBLIGATION DOES NOT FIX TIME.] Where 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 74 C. 250, 255, 5 A. S. 435, 14 P. 369, 371, 15 P. 773 (applied); 80 F. 54, 62 (mode of offering performance applies to what offers). "As soon as practicable." — See Kerr's Cyc. C. C. § 1490 and note par. 4. Negotiable instrument which does not specify time of pay- ment, when due. — See Kerr's Cyc. C. C. § 3099 and note. Notice of election as to delivery of goods sold. — See Kerr's Cyc. C. C. § 1753 and note. §1492. COMPENSATION AFTER DELAY IN PERFORM- ANCE. Where delay in performance is capable of exact and entire compensation, and time has not been expressly de- 819 §§ 1493, 1494 CIVIL CODE. [Div.III,Pt.I. Glared to be of the essence of the obligation, an offer of per- formance, accompanied with an offer of such compensation, may be made at any time after it is due, but without preju- dice to any rights acquired by the creditor, or by any other person, in the meantime. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 74 C. 250, 256, 5 A. S. 435, 14 P. 369, 371, 15 P. 773 (construed and applied); 92 C. 131, 133, 28 P. 104, 105 (construed and ap- plied); 93 C. 139, 142, 28 P. 813, 814 (construed and applied); 96 C. 339, 343, 344, 31 P. 161, 162 (construed and applied); 123 C. 1, 10, 20, 69 A. S. 17, 55 P. 713, 43 L. 199 (construed and lield inapplicable); 133 C. 441, 445, 65 P. 894 (referred to); 80 F. 54, 62 (mode of offering performance applies to what offers). Time as essence of contract. — See 50 A. D. 597-600. § 1493. OFFER TO BE MADE IN GOOD FAITH. An offer of performance must be made in good faith, and in such man- ner as is most likely, under the circumstances, to benefit the creditor. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 130 C. 142, 143, 62 P. 400 (applied); 152 C. 17, 21, 23, 91 P. 1001 (cited and applied with other sections); 80 F. 54, 62 (mode of offering' performance applies to wliat offers). Ability and willingness essential. — See Kerr's Cyc. C. C. § 1495 and note. Burden of proof on tenderer. — See Kerr's Cyc. C. C. § 1495 note par. 2. § 1494. CONDITIONAL OFFER. An offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 71 C. 498, 503, 12 P. 505, 507 (applied); 122 C. 314, 320, 54 P. 1115 (referred to); 38 P. 39, 41 (construed); 125 C. 687, 690, 58 P. 308 (construed); 126 C. 657, 668, 59 P. 146, 47 L. 334 (referred to); 80 F. 54, 62 (mode of offering performance applies to what offers). 820 Tit.IV.ch.II.] ABILITY, ETC., NECESSARY. §§ 1495-1497 Answer alleging conditional tender. — See Kerr's Cyc. C. C. § 1485 and note. Condition precedent — Riglit to demand performance of, and effect of failure to comply. — See Kerr's Cyc. C. C. § 1*498 and note. Receipt may be required. — See Kerr's Cyc. C. C. § 1499 and note par. 5. Waiver of conditions annexed to tender. — See Kerr's Cyc. C. C. § 1501 and note par. 4. §1495. ABILITY AND WILLINGNESS ESSENTIAL. An offer of performance is of no effect if the person making it is not able and willing to perform according to the offer. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 74 C. 250, 256, 5 A. S. 435, 14 P. 369, 372, 15 P. 773 (applied); 109 C. 630, 633, 42 P. 298 (applied); 152 C. 17, 22. 23, 91 P. 1001, 1003 (cited and applied with other sections); 80 F. 54. 62 (mode of offering performance applies to what offers). Readiness and willingness to pay alone not sufficient. — See Kerr's Cyc. C. C. § 1493 and note par. 2. § 1496. PRODUCTION OF THING TO BE DELIVERED NOT NECESSARY. The thing to he delivered, if any, need not in any case he actually produced, upon an offer of per- formance, unless the offer is accepted. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 97 C. 147, 151, 31 P. 928 (construed and applied); 36 P. 1026, 1027, 1028 (applied); 137 C. 286, 288, 70 P. 82, 83 (applied); 152 C. 17, 22, 91 P. 1001 (construed with § 2074 C. C. P. as not dis- pensing with requirements of §§1493, 1495 C. C); 3 C. A. 190, 192, 85 P. 665 (applied to sale of horses); 80 F. 54, 62 (mode of offering performance applies to what offers). § 1497. THING OFFERED TO BE KEPT SEPARATE. A thing, when offered hy way of performance, must not be mixed with other things from which it cannot be separated immediately and without difficulty. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 80 F. 54, 62 (mode of offering performance applies to what offers). 821 §§ 1498-1500 CIVIL CODE. [Div.III,Pt.I. As to duty of seller of chattel to put it in condition fit for delivery, see Kerr's Cyc. C. C. § 1753 and note. § 1498. PERFOBMANCE OF CONDITION PRECEDENT. When a debtor is entitled to the performance of a condition precedent to, or concurrent with, performance on liis part, he may make liis offer to depend upon the due performance of such condition. HKstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 49 C. 18, 25 (referred to in construing antenuptial contract); 74 C. 250, 255, 5 A. S. 435, 14 P. 369, 371, 15 P. 773 (applied and construed); 87 C. 49, 59, 25 P. 249, 252 (cited); 122 C. 314, 321, 54 P. 1115 (applied); 123 C. 535, 543, 56 P. 453 (cited); 125 C. 687, 690, 58 P. 308^(cited with § 1499); 137 C. 286, 289, 70 P. 82, 83, (applied); 149 C 627, 642, 87 P. 93 (applied — right to have recon- veyance of mortgaged property delivered upon payment of mort- gage debt); 152 C. 17, 22, 91 P. 1001 (not applicable to what case); 4 C. A. 361, 367, 88 P. 287 (obligation of contract is not condition precedent unless made so how) ; 80 F. 54, 62 (mode of offering performance applies to what offers). Receipt may be demanded. — See Kerr's Cyc. C. C. § 1499 and note par. 5. § 1499. ^VRITTEN RECEIPTS. A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 49 C. 18, 25 (referred to in construing antenuptial contract); 125 C. 687, 690, 58 P. 308 (construed and applied); 80 F. 54, 62 (mode of offering performance applies to what offers). As to general rule, to which this section is exception, that offer must be unconditional, see Kerr's Cyc. C. C. § 1494 and note. Evidence — Receipt as. — See Kerr's Cyc. C. C. § 1473 and note. Surrender of negotiable instrument on payment. — See Kerr's Cyc. C. C. § 3137 and note. § 1500. EXTINCTION OF PECUNIARY OBLIGATION. An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in 822 Tit.IV.ch.II.] OBJECTIONS TO MODE. §§ 1501, 1502 the name of the creditor, with some bank of deposit within this state, of good repute, and notice thereof is given to the creditor. HLstory: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 16 pars, annotation. 82 C. 46, 51, 22 P. 1131 (cited); 98 C. 390, 395, 399, 33 P. 433, 436 (construed with §2839); 11 P. 781, 782 (cited); 107 C. 107, 115, 40 P. Ill (applied); 112 C. 31, 37, 53 A. S. 155, 44 P. 305 (construed); 119 C. 538, 544, 51 P. 863 (cited); 119 C. 545, 550, 51 P. 853, 52 P. 44 (construed); 123 C. 535, 543, 56 P. 453, 454 (construed); 137 C. 376, 382, 70 P. 225, 226 (cited); 141 C. 710. 712, 713, 75 P. 342 (construed); 151 C. 553, 555, 557, 91 P. 385 (applied — what acts constitute payment); 2 C. A. 622, 623, 84 P. 274 (deposit of amount of rent in bank is not extinguish- ment of rent when); 3 C. A. 399, 402, 86 P. 736 (what tender will stop interest though money is not deposited in bank); 4 C. A. 361, 367, 88 P. 287 (obligation for payment of money is not extinguished by tender, unless money is deposited in bank); 5 C. A. 249, 251, 90 P. 50 (deposit must be unconditional — owner- ship of deposit); 80 F. 54, 62 (mode of offering performance applies to what offers). Interest stopped by tender. — See Kerr's Cyc. C. C. § 1504 and note pars. 3-7. § 1501. OBJECTIONS TO MODE OF OFFER. All objections to the mode of an offer of performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could be then obviated by him, are waived by the creditor, if not then stated. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation.' 73 C. 526, 530, 15 P. 89, 91 (applied); 79 C. 34, 43, 21 P. 357. 359 (applied); 87 C. 49, 59, 25 P. 249, 252 (cited); 36 P. 1026, 1027, 1028 (applied); 109 C. 558, 564, 42 P. 39 (applied): 122 C. 314, 320, 321, 322, 54 P. 1115 (construed and applied); (C. June 15, 1900), 61 P. 472, 474 (applied); 137 C. 286, 288, 70 P. 82 (applied); 137 C. 376, 382, 70 P. 225, 226 (referred to); 80 F. 54, 62 (mode of offering performance applies to what offers). Specification of objections to tender. — See Kerr's Cyc. C. C. P. § 2076 and note. § 1502. TITLE TO THING OFFERED. The title to a thing duly offered in performance of an obligation passes to the 823 §§ 1503, 1504 CIVIL CODE. [Div.III.Pt.I. creditor, if the debtor at the time signifies his intention to that effect. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 98 C. 390, 399, 33 P. 433 (referred to); 106 C. 441, 446, 39 P. 853 (applied); 80 F. 54, 62 (mode of offering performance applies to what offers). § 1503. CUSTODY OF THING OFFERED. 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 dili- gence he can find a suitable depositary therefor, until he has deposited it with such person. History: Enacted laarch 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 3 C. A. 190, 192, 85 P. 665 (applied to horses sold); 80 F. 54, 62 (mode of offering performance applies to what offers). Depositary for hire. — See Kerr's Cyc. C. C. §§ 1851, 1852 and notes. § 1504. EFFECT OF OFFER ON ACCESSORIES OF OBLI- GtATION. An offer of payment or other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obliga- tion, and has the same effect upon all its incidents as a performance thereof. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 50 C. 650, 651 (referred to); 74 C. 250, 256, 5 A. S. 435, 14 P. 369, 372, 15 P. 773 (construed and applied); 98 C. 390, 399. 33 P. 433, 436 (referred to); 113 C. 656, 662, 45 P. 872 (applied); 123 C. 535, 543, 56 P. 453 (cited); 143 C. 663, 667. 670, 77 P. 653 (construed and applied); 149 C. 627, 642, 87 P. 93 (tender stops interest); 151 C. 553, 557, 91 P. 385 (offer of payment, without deposit in bank, effect of); 152 C. 426, 432. 93 P. 110 (not ap- plicable to mere option to redeem); 3 C. A. 399. 402, 86 P. 736 tender stops interest) ; 80 F. 54, 62 (referred to in discussing acts 824 Tit.IV.ch.IL] RETENTION, EFFECT. § 1505 L excusing tender— mode of offering performance applies to what offers) As to undetermined sum due, see Kerr's Cyc. C. C. § 1504, note '^^Costs— Effect of tender upon.— See Kerr's Cyc. C. C. P. § 1030 and note. , ,-, r^ r> & len^ Deposit in court not necessary.— See Kerr s Cyc. C. C. § 1504 note par. 5. § 1505. CREDITOR'S RETEiVTIOX OF THI>0 WHICH HE REFUSES TO ACCEPT. If anything is given to a creditor by way of performance, which he refuses to accept as such, he is not bound to return it without demand; but if he retains it, he is a gratuitous depositary thereof. Hi.story: Enacted March 21, 1872. See Kerr's Cvc. C. C. for 2 pars, annotation. 3 C A 583 588, 86 P. 825 (not applicable if there is no refusal to accept-duty of creditor to return draft unless it is refused): 80 F. 54, 62 (mode of offering performance applies to 'n hat off prs") Common-law rule declared by above section.— See Kerr's Cyc. C. C. §1505 note par. 1. ,„._ j Gratuitous deposit—See Kerr's Cyc. C. C. §§1844, 184< and notes. 825 § 1511 CIVIL CODE. [Div.III.Pt.I. CHAPTER III. PREVENTION OF PERFORMANCE OR OFFER. § 1511. What excuses performance, etc. § 1512. Effect of prevention of performance. § 1513. Same [repealed]. § 1514. Same. [Ratable portion of consideration, when.] § 1515. Effect of refusal to accept performance before offer. §1511. WHAT EXCUSES PERFOBMANCE, ETC. The want of performance of an obligation, or of an offer of per- formance in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: 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 irresistible, super- human cause, or by the act of public 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 28 pars, annotation. 95 C. 353, 357, 30 P. 555 (construed); 96 C. 349, 352, 31 P. 244 (construed); 98 C. 390, 399, 33 P. 433, 436 (referred to); 34 P. 216, 218 (construed); 119 C. 99, 102, 51 P. 27 (construed); 129 C. 222, 227, 61 P. 1085 (construed); 144 C. 397, 401, 77 P. 996 (applied to agreement to repurchase bonds); 149 C. 108, 113, 84 P. 993 (applied to sale under deed of trust); 153 C. 234, 241, 94 P. 889 (what is not an act described in this section); 2 C. A. 534, 535, 84 P. 305 (issuance of injunction does not excuse per- formance of contract — it is not delay caused by "operation of law"); 4 C. A. 379, 381, 88 P. 292 (valid ordinance excuses per- formance of contract, — it is performance prevented "by opera- 826 Tit.IV.ch.III.] PREVENTION. §§ 1512-1514 tion of law"); 80 F. 54, 62, 63 (construed in discussing acts ex- cusing' tender). As to deposit in bank when tender is evaded, see Kerr's Cj'C. C. C. § 1500 and note par. 7. Same — Deed delivered as escrow. — See Kerr's Cyc. C. C. $ 1057 and note. Evasion of tender. — See Kerr's Cyc. C. C. § 1512 and note par. 15. § 1512. EFFECT OF PKEVENTIOX OF PEKFOHM.VX E. If the performance of au obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained if it had been performed by both parties. Hlntory: Enacted March 21, 1872; amended March 30. T^T). Code Amdts. 1873-4, p. 240. See Kerr's Cyc. C. C. for 24 pars, annotation. 86 C. 605, 614. 25 P. 137, 139, 487 (applied); 92 C. 176, 182, 28 P. 222, 223 (applied); 105 C. 514, 520, 45 A. S. 87, 39 P. 200 (con- strued); 1 C. A. 587, 592, 82 P. 542 (applied to contract respecting lumber): 3 C. A. 399, 402, 86 P. 736 (refusal to accept money renders formal tender unnecessary); 80 F. 54, 62, 63 (referred to as inapplicable — acts excusing tender). §1513. SAME (repealed). Hlntory: Enacted March 21, 1872, repealed March 30, 1S74. Code Amdts. 1873-4, p. 240. § 1514. SAME. [HATAHLE rOlMlO.V OF { O.NSIDEKA- TION, >VHE>'.] If performance of an obligation is prevented 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 performance, according to the benefit which the creditor receives from the actual performance. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. Apportionment of covenants, — As to, see Kerr's Cyc. C. C. § 1467 and note. Assumpsit lies after part performance. — See Kerr's Cyc. C. C. § 1511 and note par. 2. 827 § 1515 CIVIL CODE. [Div.III.Pt.I. Entire contract — Effect of preventing performance. — See Kerr's Cyc. C. C. § 1512 and note pars. 14, 15. §1515. EFFECT OF EEFUSAL TO ACCEPT PERFORM- ANCE BEFORE OFFER. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually due, he gives notice to the debtor of his willingness to accept it. History Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 98 C. 390, 399, 33 P. 433, 436 (referred to); 153 C. 234, 241, 94 P. 889 (what is not act described in this section); 3 C. A. 387, 395, 86 P. 729 (refusal to recognize plaintiff's riglit to redeem obviates necessity of formal tender); 3 C. A. 399, 402, 86 P. 736 (refusal to accept money renders formal tender unnecessary); 80 F. 54, 62, 63 (referred to as inapplicable — acts excusing ten- der). As to what will excuse offer, see Kerr's Cyc. C. C. § 1511 and note. Notifying other party of intention not to perform. — See Kerr's Cyc. C. C. § 1440 and note. 828 Tit.IV.ch.IV.] ACCORD. WHAT. § 1321 CHAPTER IV. ACCORD AND SATISFACTION. § 1521. Accord, what. § 1522. Effect of accord. § 1523. Satisfaction, what. § 1524. Part performance. § 1521. ACCORD, ^VHAT. An accord is an agreement to accept, in extinction of an obligation, something different from or less tlian that to which the person agreeing to accept is entitled. History: Enacted March 21, 1872: amended March 30. 1874. Code Amdts. 1873-4, p. 240. See Kerr's Cyc. C. C. for 16 pars, annotation. 92 C. 33. 37. 27 P. 1098, 1099 (cited): 119 C. 463, 466. 51 P. 704 (applied); 142 C. 34, 41, 75 P. 569 (cited). ACCORD AND SATISFACTION — GENERALLY. As to law of. — See 100 A. S. 390. Definition of. — See 11 L. 712; 1 W. & P. 81. Distinction between novation and accord executory. — See]2L. 1134. Executed accord must l)e pleaded. — See Kerr's Cyc. C. C. § 1522 and note par. 3. Necessity of new consideration — See 11 L. 711. Novation as an. — See Kerr's Cyc. C. C. §§ 1530-1533 and notes. Part payment — As satisfaction of disputed claim. — See 1 A. C. 801; 11 L. 1018; 20 L. 785-811. Same — Of whole debt due. — See note 20 L. 785-812. Same — With receipt in full as satisfaction of lid and undisputed debt. — See 5 A. C. 525. Payment — Of a less sum than due. when inforcible as. — See 1 A. C. 796; 5 A. C. 521; 64 A. D. 138; 28 A. R. 293. Same — Of debt by a volunteer or stranger to the original undertaking, effect of. — See 23 L. 120. Promise accepted in satisfaction of debt, as an executed accord. — See 6 A. C. 564. Receipt of a sum less than full amount, amounts to when. — See 28 A. R. 293: also 64 A. D. 138. Release and discharge. — See Kerr's Cyc. C. C. §§ 1541-1.t43 and notes. Satisfaction necessary. — See Kerr's Cyc. C. C. § 1523 and note par. 5. 829 §§ 1522-1524 CIVIL CODE. [Div.III.Pt.I. With one joint tort-feasor, effect on liability of others.- — See 58 L. 300. § 1522. EFFECT OF ACCORD. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 92 C. 33, 37, 27 P. 1098. 1099 (cited); 142 C. 34, 41, 75 P. 569 (cited). As to accord and satisfaction generally, see note § 1521, ante. § 1523. SATISFACTION, WHAT. Acceptance, by the cred- itor, of the consideration of an accord extinguishes the obli- gation, and is called satisfaction. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 56 C. 493, 495 (applied); 92 C. 33, 37, 27 P. 1098, 1099 (cited); 142 C. 34, 41, 75 P. 569 (cited). As to accord and satisfaction generally, see note § 1521, ante. Executed accord must be pleaded. — See Kerr's Cyc. C. C. § 1522 and note par. 3. § 1524. PART PERFORMANCE. Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfac- tion, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 241. See Kerr's Cyc. C. C. for 3 pars, annotation. 56 C. 493, 495 (cited); 88 C. 543, 552, 26 P. 515, 518 (referred to); 92 C. 33, 37, 27 P. 1098, 1099 (cited); 1 C. A. 659, 665, 82 P. 1075 (applied to promissory notes — death of original payee without having received payment); 4 C. A. 527, 532, 88 P. 493 (applied to contract to furnish pumping plant of specified capacity); 178 U. S. 353, 366, 44 L. ed. 1099, 1106 (referred to as establishing contrary rule respecting payment of less sum of money in full satisfaction). As to accord and satisfaction generally, see note § 1521, ante. Part payment. — See Kerr's Cyc. C. C. § 1521 and note pars. 9-11. 830 Tit.IV,ch.V.] NOVATION, GENERALLY. § 1530 CHAPTER V. NOVATION. § 1530. Novation, what. § 1531. Modes of novation. § 1532. Novation a contract. § 1533. Rescission of novation. § 1530. >'OVATIO>% "^VHAT. Novation is the substitution of a new obligation for an existing one. IliNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 49 C. 49, 50 (applied); 60 C. 387, 395 (applied); 22 P. 673, 675 (applied to execution, by indorser, of his own note given and accepted in full payment of note on which he was indorser): 6S P. 484, 485 (applied); 3 C. A. 561, 567, 86 P. 820 (instance of valid contract, though not negotiable, having all earmarks of a novation). NOVATION. Action by a third person on a promise made for his benefit. — See 39 A. S. 531. As a contract. — See 5 W. & P. 4849. By substitution of debtor.— See 10 L. 369; 5 W. & P. 4850. Continuance of one debtor's liability on release of co-obli- gators.— See 5 W. & P. 4850. Contract, is a.— See Kerr's Cyc. C. C. § 1532 and note. Same — An irrevocable one. — See Kerr's Cyc. C. C. § 1533. note. Definition of.— See 10 L. 369; 5 W. & P. 4848. Distinction between novation and accord executory. — See 12 L. N. S. 1134. Effect of judgment against garnishee to merge or satisfy liability of principal debtor. — See 47 L. 131. Extinguishment of old debt. — See 5 W. & P. 4850. Fraud, statute of, inapplicable. — See Kerr's Cyc. C. C. § 1532, note par. 7. Intervention of new creditor. — See 32 A. S. 704; 18 L. 120; 5 W. & P. 4849. Intervention of new debtor.— See 10 L. 369; 5 W. & P. 4S50. Liability of consolidated railroad company for debts of prede- cessors. — See 23 L. 231. Modes of, and illu.strations. — See Kerr's Cyc. C. C. § 1531 and note. Presumption of not indulged. — See 5 W. & P. 4851. 831 §§ 1531-1533 CIVIL CODE. [Div.III.Pt.I. Recession of novation.— See Kerr's Cyc. C. C. § 1533 and note. Substituted obligation.— See 10 L. 369. What constitutes a. — See 5 L. 414; 6 L. 688. §1531. MODES OF NOVATION. Novation is made: 1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; 2. By the siibstitutiou 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. History; Enacted March 21, 1872. See Kerr's Cyc. C. C. for 21 pars, annotation. 60 C. 387, 395 (referred to); 63 C. 501, 502 (referred to); 72 C. 549, 551, 14 P. 513, 514 (construed); 22 P. 673, 675 (applied to execution, by indorser, of his own note given and accepted in full payment of note on which he was indorser); 86 C. 574, 576, 21 A. S. 63, 25 P. 52, 53, 10 L. 369 (referred to); 110 C. 259, 263, 42 P. 820 (cited); 131 C. 495, 497, 63 P. 778 (construed); 143 C. 4, 7, 76 P. 647 (construed and applied); 1 C. A. 189, 195, 81 P. 1029 (subd. 2 applied to transfer of shaues of capital stock and acceptance of certificates); 3 C. A. 561, 567, 86 P. 820 (instance of valid contract, though not negotiable, having all earmarks of a novation). As to novation generally, see note § 1530, ante. Frauds, statute of, inapplicable. — See Kerr's Cyc. C. C. § 1532 and note par. 7. § 1532. NOVATION A CONTRACT. Novation is made by contract, and is subject to all the rules concerning contracts in general. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 54 C. 333, 338 (applied); 60 C. 387, 395 (referred to); 109 C. 571, 596, 42 P. 225 (applied); 3 C. A. 561, 567, 86 P. 820 (instance of valid contract, though not negotiable, having all earmarks of a novation). As to novation generally, see note 1530, ante. § 1533. RESCISSION OF NOVATION. When the obliga- tion of a third person, or an order upon such person, is 832 Tit.IV.Ch.VI.] RELEASE. § 1541 accepted in satisfaction, the creditor may rescind such accept- ance if the debtor prevents such person from complying with the order, or from fulfilling the obligation; 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 creditor can with reasonable diligence present the order to the person upon whom it is given, he becomes insolvent. HiNtory: Enacted March 21, 1872; amendod March 30. 1871, Code Amdts. 1873-4, p. 241. As to novation generally, see note 1530, ante. CHAPTER VI. RELEASE. § 1541. Obligation extinguished by release. § 1542. Certain claims not affected by general release. § 1543. Release of [one of] several joint debtors. § l.')*!. (M{I>IGATI()> EXTI>GriSIlED BY RELEASE. An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. IliMtory: Knactrd March 21, 1872. Sec Kerr's Cyc. C. C. for 10 pars, annotation. 57 C. 49, 51 (referred to as inapplicable); 78 C. 552. 555, 21 P. 304, 305 (construed); 49 P. 719 (construed and applied); 121 C. 247. 253. 53 P. 648 (construed); 1 C. A. 659. 664, 82 P. 1075 (applied to promissory notes — death of original payee without having received payment). ui!:m!:ase:. Action between joint tort-feasors on claim satisllod by and assigned to one of them. — See 9 A. C 519. As a conveyance. — See 7 W. & P. 6059. As affecting right of action for death. — See 3 J L. 790. As constituting a legacy. — See 7 W. & P. 6060. As termination of interest. — See 7 W. & P. 6061. As to an off(>r of partial performance. — See Kerr's Cyc. < ". > '. § 1486 and note. As waiver of relin(|uishnient. — See 37 L. 305; 7 W. & P. 6061. Kerrs C. C. — 27 833 § 1541 " CIVIL CODE. [Div.III,Pt.L By infant of cause of action ex delicto, avoidance. — See 11 L. N. S. 690. By servant after injury lias been received and without refer- ence to a prior contract with a relief association. — See 11 L. N. S. 194. Covenant not to sue is not such a release as will discharge .co-trespasser. — See 66 C. 163; 4 P. 1165. Definition of. — See 8 A. C. 344; 7 W. & P. 6058. Effect of, of claim for personal injuries upon right to recover unknown or subsequently developed injury. — See 4 A. C. 548. Effect of release of a join tort-feasor. — See 1 A. C. 63. Effect of release of joint tort-feasor not actually liable.— See 8 A. C. 1042. Effect of release of one joint tort-feasor on liability of the other. — See 58 L. 293. Effect of releasor's mental incapacity upon release of claim for personal injuries. — See 3 A. C. 574. Effect of servant's discharge froin personal liability upon master's liability for servant's act. — See 9 A. C. 660. Effect of specification of particular claim to limit import of general release. — See 8 L. N. S. 1034. Extinguishment distinguished. — See 75 A. D. 243; 7 W. & P. 6060. Law governing release of claim for damages for death or bodily injury.— See 56 L. 223. Misrepresentations or undue influence by physician — Effect of to avoid release. — See 5 L. N. S. 663. Necessity of returning to or tendering consideration upon repudiation upon release of damages for personal injuries pro- cured by fraud. — See 4 A. C. 655; 10 A. C. 739. Of damages for construction of railroad in highway — Does it include damages for elevation of grade. — See 10 L. N. S. 1202. Of drawer and indorser by certification of check. — See 9 L. N. S. 698. Of interest in estate by one receiving advancement — Effect on right to share in after-acquired property. — See 65 L. 578. Of joint debtors, effect of. — See 5 L. 596. Of one joint tort-feasor as affecting the liability of the others. — See 92 A. S. 872. Of one of several tort-feasors, effect of as to the others. — See 11 A. S. 906; 111 A. S. 281; also note § 1521, ante. Offer of part performance — As to effect of, see Kerr's Cyc. C. C. § 1486 and note. Presumption of. — See 1 L. 191. Receipt distinguished from. — See 7 W. & P. 6060. Release by decedent as affecting riglit to recover for death by wrongful act. — See 1 A. C. 232. 834 I Tit.IV.ch.VI.] RELEASE OF ONE. §§1542.1543 RiKlit to reinstatement of mortgage wlierc released by mis- take.— See 58 L. 788. Stipulation making execution of tlie lease frt»m liability for damages a condition precedent to payment of benefits out of relief fund.— See 11 I.. N. S. 194. § ir)42. (Einvix (LA13IS xn affected hy gen- eral RELEASE. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. History: Enacted March 21, 1872; amended March 30, lS7-f, Code Amdts. 1873-4, p. 241. See Kerr's Cyc. C. C. for 2 pars, annotation. 86 C. 248, 253, 254 (erroneously cited for § 2617), 21 A. S. 33 (same error), 24 P. 1018, 1019 (same error): 119 C. 463. 469. 51 P. 704 (construed); 134 C. 547, 548, 86 A. S. 294, 6G P. 730 (referred to). As to release generally, see note § 1541, ante. § 1543. RELEASE OF [ONE OF] SEVERAL JOINT DERT- ORS. 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. IliNtory: Enacted Marcli 21. 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 63 C. 157, 158 (construed obiter): 68 C. 82, SO, 90. 8 P. 679 (referred to); 70 C. 108. 114, 9 P. 180. 11 P. 599 (applied); 76 C. 6, 7, 18 P. 81. 82 (applied); 86 C. 248, 253 (erroneously cited for §2618), 21 A. S. 33 (same error), 24 P. 1018, 1019 (same error); 122 C. 651. 654, 55 P. 592 (referred to); 125 C. 508, 512, 58 P. 154 (cited); 130 C. 245. 254. 62 P. 466, 600 (applied); 133 C. 110. 113, 65 P. 125 (cited); 145 C. 529. 533. 78 P. 1038 (principle that release of principal will discharge obligation as to surety can- not be applied in what cases); 146 C. 168. 171. 79 P. 866 (this section includes all releases); 1 C. A. 659, 665. 666. 82 P. 1075 (cited and applied). As to release generally, see note § 1541. ante. Guarantor exonerated, how. — See Kerr's Cyc. C. C. § 2819 and note. 835 §1549 CIVIL CODE. [Div.III.Pt.II. 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. i § 1549. CONTRACT, WHAT. A contract is an agreement to do or not to do a certain thing. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. 78 C. 529, 536, 21 P. 179, 181 (construed and applied); 2 C. A. 55, 58, 83 P. 77 (transfer is executed contract, and no longer a contract as defined In this section). CONTRACTS — GENERALLY. As to location of public building-. — See 4 L. N. S. 589. As to location of railroad or depot. — See 6 L. N. S. 524. 836 ff Tit.I.ch.I.] CONTRACTS, GENERALLY. § 1549 Abandonment and rescission of contract— As to, generally, see 1 L. 827; 9 L. 608; 17 L. 779; 24 L. 231. Abandonment or countermanding of one partj-. — See 94 A. S. 119. Acceptance of chattel before agreement as to purchase price as an assent to seller's price. — See 11 L. N. S. 254. Acceptance of proposal must be unequivocal. — See 3 L. 94. Admissibility of opinion evidence as to mental capacity of person to execute contract or deed. — See 4 A. C. 888. Agreement to comply with lease, as a consideration. — See 34 Agreement to comply with marriage contract, as a considera- tion.— See 34 L. 37. Agreement to g^ve property by will— Effect of upon right to change will. — See 14 L. 861. Same— Effect on right to transfer property during life. — Sec 14 L. 861. Same — Validity of. — See 14 L. 860. Agreement to induce public officer to do illegal act, or neglect duty, invalid. — See 4 L. 682. Agreement to pay money after death of promisor, validity of. —See 14 L. 860. Agreement to transfer future-acquired property in considera- tion of maintenance. — See 70 L. 435. Alimony after husband's death as affected by. — See 2 L. N. S. 241. Alleged fraudulent grantee— Right to show judgment against grantor was based on an immoral consideration. — See 67 L. 602. Antenuptial agreements, required to be in writing. — See - L. 373; 3 L. 339. Architects' certificates and engineers' estimates, effect of when provided for in. — See 56 A. S. 312. Assent to seller's price by acceptance of chattel before agree- ment as to purchase price. — See 11 L. N. S. 254. Assignment of lease of land, to be in writing. — See 15 L. 754. Attorneys— Contracts between and their clients, when valid and enforceable. — See 83 A. S. 159. Same — What contracts of are void as against public policy. See 13 A. S. 297. Award upon claim arising out of illegal transaction.— See sjS L. 181. Bank book, entries in as. — See 24 L. 737. Benefit to promisor and detriment to promisee, as a sufficient consideration. — See 12 L. 65. Bill of lading as. — See 4 L. 244. Bona fide purchaser, within statute of frauds, who is. — See 31 L. 612. 837 § 1549 CIVIL CODE. [Div.TII,Pt.II. Books of account — Admissibility to prove performance or breach of contract. — See 52 L. 714. Breacli of — Abandonment or rescission cause of otlier party's fault. — See 11 L. 196; 30 L. 33-69. Breach of — Action against third persons for inducing. — See 97 A. S. 923. Same-^Anticipatory, or prevention of performance, remedies of parties to contract. — See 12 A. C. 1108. Same — Conflict of laws as to measure of damages. — See 6 L. 856; 10 L. 826; 21 L. 233; 56 L. 301, 303; 59 L. 359; 62 L. 678. Same— Damages for — As to, generally, see 3 L. 587; 6 L. 230; 26 L. 384; 47 L. 33; 56 L. 301; 61 L. 555. Same — Same — Compensatory. — See 1 L. 656; ^2 L. 766; 2 L. 786; 3 L. 587; 4 L. 670; 5 L. 275; 9 L. 451; 10 L. 185; 15 L. 134; 18 L. 385; 32 L. 545; 37 L. 233; 43 L. 768; 52 L. 108. Same — Same — Enhanced, minimizing. — See 1 L. 76; 6 L. 454; 16 L. 268. Same — Same — Exemplary. — See 9 L. 445; 11 L. 43; 13 L. 600; 17 L. 71; 26 L. 779. Same — Same — Liquidated, penalty. — See 6 L. 551; 10 L. 826: 13 L. 671; 55 L. 137; 55 L. 381. Same — Excuse for non-performance. — See 12 L. 571; 14 L. 215; 16 L. 858; 23 L. 707. Bribery and corruption, contracts tainted by, invalid. — See 3 L. 632; 4 L. 682;' 5 L. 217; 12 L. 120. Broker's contract — Performance — Broker's presence at sale by principal. — See 44 L. 617. Same — Same — By real estate broker to find purchaser or effect an exchange. — See 44 L. 593. Same — Same — Necessity of a vrritten contract. — See 44 L. 601. Same — Same — Time of performance. — See 44 L. 608. Building contract — Construction of. — See 10 L. 826. Same — Performance of. — See 5 L. 270. Same — Substantial performance of. — See 30 A. S. 616. Burden of proof of consideration, for transfer by husband to wife. — See 56 L. 828. By telegraph, and the admissibility of telegrams, as evidence. —See 93 A. D. 514; 110 A. S. 742. "By the elements," damages — What constitutes. — See 53 L. 763. Capacity to make, as affected by mental conditions. — See 3 L. N. S. 174. Change or extinguishment of contract — Fraud as ground of equitable relief. — See 3 L. 806; 5 L. 153; 6 L. 836. Same — Mistake as ground for equitable relief. — See 4 L. 483; 5 L. 153; 6 L. 835; 11 L. 857; 12 L. 273. Same — Same — Mistake as to incidental or collateral matter. — See 4 L. 483. 838 Tit.I.ch.I.] CONTRACTS, GENERALLY. § I549 Same — Same — Mistake as to legal right, effect of instrument. —See 6 L. 837. Same — Same — Mistake of fact. — See i L. 836. Same — Same — Mistake of law or of legal right. — See 5 L. 154; 6 L. 386. Same — Modification by agreement. — See 6 L. 551; 12 L. 274; 13 L. 633. Same — Same — Necessity that mistake be material and void from culpable negligence. — See 4 L. 483: 6 L. 835. Same — Reformation of — Burden of proof on. — See 5 L. 159. Same — Same — Enforcement of corrected agreement. — See 5 L. 159. Same — Same — Equity jurisdiction. — See 3 L. 189; 5 L. 156; 12 L. 273. Same — Same — Evidence on and character of required. — See 2 L. 190; 5 L. 159. Same — Same — Of deed. — See 5 L. 158; 12 L. 274. Same — Same — Same — In the description. — See 12 L. 274. Same — Same — Of insurance contracts. — See 2 L. 64; 3 L. 189: 5 L. 712; 6 L. 200; 6 L. 838. Same — Release and abandonment — As to, generally, see 1 L. 827; 6 I.,. 503; 9 L. 608; 11 L. 196; 17 L. 779; 24 L. 231; 33 L. 721. Same — Right to rescind or abandon cause of other party's fault — As to, generally, see 11 L. 196; 30 L. 33-69. Check, gift of, necessity of consideration. — See 18 L. 855. Civil liability for interference with contract relations. — See 2 A. C. 441. Collateral oral agreement supplementing written contract by proof of. — See 2 A. C. 148. Commission to purchase personal property, to be Ijindins. must be in writing. — See 11 L. N. S. 650. Completion of contract in disregard of notice to desist riglits on. — See 16 L. 655. Completion of invalid contract as consideration for a promiso. —See 5 L. N. S. 725. Compliance with obligation to deliver papers or propfrt>'. a.*; a consideration. — See 34 L. 35. Computing time on contracts, first and last days in. — See 49 L. 205. Concurrent promises, as sufficient consideration. — Si-e 12 L. 463. Conditional execution of — As to generally, see 45 L. 321-348. Conflict of laws as to statute of frauds. — See 64 L. 119. Consideration — As to generally, see 2 L. 530: 12 L. S46: 67 L. 602. Same — Additional for completing executory contract other than a contract for the payment of money. — See 11 L. N. S. 789. Same — Completion of invalid contract as. — See 5 L. N. S. 725. 839 § 1549 CIVIL CODE. [Div.III.Pt.II. Same — Failure of — As to generally, see 1 L. 594; 31 L. 747; 32 L. 492; 47 L. 760; 67 L. 603. Same — Same — As a defense. — See 13 A. D. 378. Same — ^Husband's express promise to pay debts contracted by ■wife.— See 7 L. N. S. 1048. Same — Inadequacy of as a defense. — See 56 A. R. 332. Same — Moral, when will sustain an express promise. — See 39 A. S. 735. Same — Moral obligation arising from relationship as sufficient to support a promise to become responsible for another's debt. —See 3 L. N. S. 436. Same — Necessity of. — See 12 L. 463; 13 L. 640; 18 L. 855; 21 L. 129; 26 L. 305; 29 L. 305. Same — New promise by wife after discoverture to pay debt incurred during coverture. — See 7 L. N. S. 1053. Same- — Payment of part of liquidated and undisputed debt as, for the discharge of the whole. — See 11 L. N. S. 1018. Same — Proof of, recitals as to. — See 3 L. 804; 5 L. 596; 18 L. 845; 20 L. 101; 56 L. 828; 68 L. 925. Same — Sufficiency of — As to generally, see 2 L. 372; 2 L. 530; 3 L. 466; 3 L. 468; 3 L. 761; 3 L. 836; 5 L. 856; 12 L,. 46; 12 L. 463, 464; 12 L. 465; 13 L. 581; 13 L. 640; 33 L. 305; 35 L. 515; 36 L. 161; 36 L. 346; 70 L. 485. Same — Same — Moral obligation as a. — See 53 L. 353-375. Same — Same — Performance of existing obligations as a con- sideration. — See 34 L. 33-43. Same — ^When and how must be expressed. — See 60 A. S. 432. Consideration for which is partly illegal or has partly failed. — See 117 A. S. 493. Consideration for which is the stifling of a criminal prosecu- tion. — See 31 A. D. 600; 22 A. R. 121; 49 A. R. 48. Consideration of new contract based on compromise of illegal contract, validity of. — See 9 L. N. S. 568. Consideration tending to obstruct the administration of jus- tice. — See 37 A. R. 203. Constitutionality of statute legalizing contract. — See 22 L. 379; 27 L. 696. Construction and effect of — As to, generally, see 1 L. 826; 3 L. 579; 3 L. 761; 3 L. 859; 4 L. 202; 4 L. 204; 4 L. 392; 10 L. 785; 10 L. 826; 12 L. 375; 13 L. 671; 14 L. 861; 46 L. 54; 49 L. 205: 70 L. 106. Same — Agreement to give property by will — Effect of on right to transfer property during life. — See 14 L. 861. Same — Same- — Effect of upon right to change will. — See 14 L. 861. Construction of — Aiding, of building contract, by extrinsic documents or examples. — See 9 L. N. S. 1007. Same— Building contracts, of. — See 10 L. 826. 840 L. Tit I Ch.l.] CONTRACTS, GENERM.T.V. § 1549 Same— Contract exempting from liability to servants of another party, effect of.— See 46 L. 54. Same— Damages— "By the elements." as to what constitutes. — See 53 L. 673. Same— Distinction between executory and executed contracts. —See 3 L. 761. Same— "Effects" in a written instrument, as to whether real estate passes under. — See 12 L. N. S. 661. Same— First and last days in computation of time on.— See 49 Same— "Forfeiture," effect of use of term.— See 10 L. 827. Same— Ignorance of contents of extraneous paper, effect of parties, upon attempt to incorporate it into contract by refer- ence. — See 70 L. 106. Same— Intent of parties to adopt standard instead of solar time.— See 1 L. N. S. 364. , t c-o Same — Interpretation of words in contract. — See 3 !>.. !>;>». Same— Law, usage and custom as part of.— See 3 L. 860; 4 L. 392; 10 L. 785. , v. , o Same— Liquidated damages and penalty distinguished.— See 13 L. 761. Same— Parol evidence, when admissilile to aid.— See n A. K. 241. , Same — Province of court and jury. — See 2 L. 376; 4 L. -04. Same— Repugnant clauses in, which shall prevail.— See 60 A. S. 93. Same— Retention of title to personal property until p:iynu'nt of purchase price, effect to characterize sale as executory.— See 5 L. N. S. 475. Same— Rule that when terms of agreement have been intended in a different sense by the party, that sense is to prevail, against the other party in which he had reason to suppose the otiier party understood it. — See 8 L. N. S. 1140. Same— Separate instruments construed together.— See 3 L. 579 Same— Stipulation for payment in case of default, whether to be considered a penalty or liquidated damages.— See 10 L. 820. Same— Subscription contract— As to, generally.— See — L. IsO. Same Terms of art or business, meaning of for jury. — See 12 L. 376. Same— When primary meaning of word.s to prevail over tecb- nical.— See 12 L. 375. Same— Whether contract entire or severable.— See 1 L. s-b. Contract as to realty— Agreement of vendee to divide profits of resale with vendor, as affected by statute of frauds.— See S L. N. S. 1137. ,, .^ ^.^. Same— Authority of agent to purchase or sell. necessit> that 841 § 1549 CIVIL CODE. [Div.III,Pt.II. it be in writing to enable him to recover compensation for services. — See 9 L. N. S. 933; 12 L. N. S. 707. Same — Legal remedy for breach of contract to purchase for and in the name of another — Statute of frauds as affecting. — See 5 L. N. S. 123. Same — Memorandum for sale of real property disclosing that one party acted for undisclosed principal, as to satisfying stat- ute of frauds. — See 8 L. N. S. 733. Same — 'Oral agreement to assume or assign land contract, validity of. — See 3 L. N. S. 147. Same — Part performance, effect of. — See 3 L. N. S. 790; 3 L. N. S. 852; 11 L. N. S. 1116. Same — Power of legislature to prohibit offering of another's real estate for sale without written authority. — See 12 L. N. S. 707. Same — Right to equitable relief against one who has pur- chased land in his own name, in violation of his agreement to purchase for another, statute of frauds, as affecting right to equitable relief against. — See 5 L. N. S. 112. Contract against a public policy — As to, generally, see 3 L. 631. Same — Attempt to ratify. — See 12 L. 121. Contract exempting from liability to servants of other party, effect of. — See 46 L. 54. Contract extending over a series of years must be in writing. —See 3 L. 338. Contract for a year — Future commencement of. — See 2 L. N. S. 738. Same — To commence on a future day to be in writing. — See 3 L. 338. Contract for permanent employment — Sufficiency of considera- tion. — See 35 L. 515. Same — To be in writing. — See 35 L. 514. Contract for services to procure litigation, invalid. — See 30 L. 737-742. Contract for work and labor, as affected by statute of frauds. —See 1 L. 507. Contract in restraint of trade — Invalid when. — See 8 L. 469; 11 L. 437; 11 L. 503; 22 L. 673; 64 L. 689. Same — Restrictions as to territory. — See 11 L. 503. Same — Restrictions as to time. — See 1 L. 457; 8 L. 469. Same — Restrictions as to use of trade secrets. — See 13 L. 652. Contract made by public officer — Liability of officer on. — See 15 L. 509. Same — Power to bind successor. — See 16 L. 257. Same — "With body or municipality he represents.- — See 15 L. 520. Contract made on a holiday or Sunday, validity of. — See 1 L, 842 Tit I.ch.I.] CONTRACTS. GENERALLY. §1549 63; 3 L. 244; 4 L. 680; 7 L. 498; 19 L. 317; 4 L. N. S. 1151; f, L. N. ^'contract not to be performed within one year-Effect of future performance on one side.— See 3 L. 3.?8. Contract not to engage in certain business, effe^^ "^ incor- poration of business by covenantees.— See 9 L N. S. 9.9. Contract to procure testimony, invalid.— See 19 L. 3/1. Contract void in part. — See 3 L. 468. Sst^m to grant an exception to written contract, admissi- bility of evidence of.— See 3 L. N. S. 248. ^ -o t c-t Damages -by the elements," what constitutes.-bee :,3 I. 6.3. Death of contractor, enforcement of after.— bee 2- A. b._ Ml. Death of master, termination of employment by.— bee d i.. .>• ^"Dea'th of party after mailing, but bef..re the re-ipt. of his letter accepting an offer, effect of. -See IL L. N^ S 439 Debt or default of another, contract to answer f oi , to b. in writing.-See 5 L. 617; 25 L. 264; 33 L. 359; 39 L. 3.8. Decedents, continuing force against, and how may in- asserted.— See 68 A. D. 758. ., Definition of contract.— See 9 Cyc 240-242; . Lnc>c. L. JO. . W. & P. 1513-1534. , , ^ Denial of allegation of persons of condition precedent.— b. . ' Denial of remedy on contract illegal, immoral ^J ''^'^:']^'''\''' public policy-As to generally, see 3 L. 631; b L. 218. 6 L. d88. 8 L. 476; 8 L. 497; 8 L. 501. Same— Injunction against enforcing illegal contract.— bee 4N ^' Same— Parties in pari delicto.— vSee 2 L. 817; 6 L. 458; 8 L. ''^Sa.lie-ReHef to less guilty parly to illegal contract.-See 17 ^■Destruction of subject-matter of contract as excuse for non- performance. — See 1 A. C. 466. Di.satnrmance of by Infants.— See 18 A. S. 65J. Discontinuance of bastardy proceedings as consideration foi. ~DTst?nfti^n between a definite proposal or acceptance and a M.ere preliminary step in the negotiation of a contract.-feee 4 L. N. S. 1077. , , , i« not —See Duress sufficient to invalidat.-, what is. and XNhat is not.— cc "^'^ecUoror appointment to office, contracts tending to influ- ence. Invalid.— See 12 L. 120. Enforcement of outside of the jurisdiction where made.— See 55 A. S. 774. .. . <,(>- Enforcement of unilateral contract.-See 1 L. »o4. b U 8U.. S43 § 1549 CIVIL CODE. [Div.III,Pt.II. Entirety of — As to generally, see 54 A. R. 624. Same — Complete performance, when essential to a cause of action ex contractu. — See 59 A. S. 277. Same — When for services of other work. — See 38 A. R. 208. Entry in bank book as. — See 24 L. 737. Estoppel of party to deny terms of written contract. — See 3 L. 308. Evidence, stipulations as to rules of, whether binding on the courts. — See 8 A. S. 921. Exchange of lands — Verbal contract for, enforcibility of. — See 5 L. 245. Excuses for non-performance — Effect of destruction of build- ing upon building contract. — See 2 A. C. 812; 12 L. 571. Same — 'Effect of intervening impossibility to perform. — See 14 L. 215. Same — Effect on contract of the death of party. — See 16 L. 858; 23 L. 707. Same — Recovery for services interrupted by sickness or death. —See 16 L. 858; 23 L. 707. Same — Waiver of provisions. — See 6 L. 551. Same — When party entitled to relief from forfeiture. — See 10 Lr. 828. Executory and executed contracts, distinction between. — See 3 L. 761. Exeinplary damages in action on contract or time contract to marry. — See 3 A. C. 413. Exonerating master in advance from liability for negligent injuries to servant. — See 7 L. N. S. 537. Expectancy, transaction between heir and ancestor relating to, to be in writing. — See 32 L. 597. Failure of consideration — As defense to action and assessment by mutual fire insurance company.- — See 32 L. 492. Same — As defense to bill or note. — See 1 L. 594. Same — Same — When paper transferred after maturity. — See 46 L. 760. Same — As ground for injunction against judgment. — See 31 L. 747. Same — Right of alleged fraudulent grantee to show, of con- sideration of contract on which judgment against grantor was based. — See 67 L. 603. False representations as to consideration, effect of. — See 10 L. 676. Federal question, questions relating to as a. — See 62 L. 537. First and last days in computing time on contracts. — See 49 L. 205. Forebearance to sue — As consideration for a promise. — See 60 A. D. 524. Same — Effect of agreement for. — See 36 A. S. 145. 844 TitT.ch.I.] CONTRACTS, GENERAIJA'. §1549 Foreign corporation which has not compiled with statutory conditions conferring right to do business, validity of contract by.— See 24 L. 315. '•Forfeiture," effect of use of term in contract.— See 10 L. ^"Forfeiture under contract— When party entitled to relief from. —See 10 I.. 828. Formalities of— Effect of omission of internal revenue stamps. —See 40 L. 305. Same— Signing by mark.— See 22 L. 372. Same— Signing by proxy— See 22 L. 970. For the benefit of a third person, when may he sue thereon.— See 39 A. S. 531; 71 A. S. 176. „ , , t^ For the production or discovery of evidence.— See 94 A. u, 375; 97 A. S. 145. », , ,^ "For value received"— Effect of absence of in negotiable instrument. — See 12 L. 846. ^_ Fraud— Use of statute of frauds as a protection to.— See -;> i.. 569. ,. , o 1 Fraud in contract— As ground for equitable relief.— See S L. 806; 5 L. 153; 6 L. 836. Same— Circumvention and deceit, neglect of precaution, suf- ficiency of proof of fraud. — See 10 L. 606. Same— Effect of.— See 2 L. 817. Future-acquired property, validity of agreement for transfer of in consideration of maintenance. — See 70 L. 485. Future commencement of a contract for a year.— Sec 2 L. N. Future delivery of property, contract for, valid when.— See 4 L. 398; 5 L. 201; 12 L. 776. "Futures"— Purchase or sale of, validity of.— See 1 2 L. 121. Same— Right of broker to recover for services or losses in dealing in. — See 1 L.. 141. Grammatical construction of. — See 6 A. C. 55. Heir and ancestor, transactions between relating to expect- ancy, to be in writing.— See 32 L. 597. Holidav, validity of contract executed on.— See 1 L. 63: 3 T.. 244; 4 L.680; 7 L. 493; 19 L. 317; 4 L. N. S. 1151; 5 L. N. S. -9;.. How far contract is invalidated by Intoxication.— See 2 I.. "W CJ ft A R '■Husband and wife— Contract between to compromise ponding or contemplated divorce suit. — See 60 L. 406. Same— Validity of agreement between, renouncing mnrltal rights.— See 12 L. N. S. 848. Husband's express promise to pay debt contracted b> ^ ire. validity of.— See 7 L. N. S. 1048. „.,,tl^9 Ignorance of contents of extraneous paper, effect of parties 845 § 1549 CIVIL CODE. [Div.III.Pt.II. upon attempt to incorporate it into contract by reference. — See 70 L. 106. Ignorance or carelessness as affecting right to equitable relief from a contract in which one has been overreached. — See 5 L. N. S. 799. Illegal business, notes given on settlement of is valid. — See 30 A. R. 106. Illegal — Actions upon. — See S A. D. 691. Same — Recovery of money paid under. — See 12 A. D. 385. Same — Rights of parties to. — See 67 A. D. 153. Illegal, immoral or opposed to public policy — ^Validity of. — See 3 L. 631; 4 L. 682; 9 L. 506; 9 L. 657; 12 L. 121; 27 L. 56; 35 L. 513; 48 L. 842; 58 L. 181; 60 L. 406; 70 L. 485. Same — Injunction against enforcing. — See 48 L. 842. Immoral consideration — Right of alleged fraudulent grantee to show that judgment against grantor was based on. — See 67 L. 602. Implied agreement to pay for services rendered by relative or member of household. — See 11 L. N. S. 873-913. Implied contracts — -As to generally. — See 4 L. 202; 6 L. 702; 50 L. 397; 4 W. & P. 3428. Same — As implied in fact. — See 50 A. R. 321; 12 A. S. 145; 5 L. 233; 13 L. 210; 4 W. & P. 3429. Same — As implied in law. — See 36 A. D. 985; 47 A. R. 64; 75 A. S. 935; 4 W. & P. 3430. Same — As quasi contract.— See 10 A. D. 179; 4 W. & P. 3431. Same — Compared with express contracts. — See 54 A. S. 505; 4 W. & P. 3429. Same — Consent required. — See 33 A. R. 396; 21 L. 714; 4 W. 6 P. 3428. Implied contracts or obligations imposed by law. — See 29 L. 522. Implied contracts to pay for services to relative not living as part of same family. — See 1 L. N. S. 819. Implied power to incorporate in contract for public work or in contractor's bond, a requirement that the contractor shall pay laborers and materialmen. — See 11 L. N. S. 1028. Indefiniteness and uncertainty of contract for permanent employment, effect on validity. — See 35 L. 515. Injunction against enforcing illegal contract. — See 48 L. 842. Injunction to restrain breach of contract not capable of being specifically enforced. — See 3 A. C. 976. In restraint of trade — As to generally, see 5 L. N. S. 136; 6 L. N. S. 847; 6 L. N. S. 892; 9 L. N. S. 446; 9 L. N. S. 501; 11 L. N. S. 368. Same— Validity of.— See 92 A. D. 751; 35 A. R. 269; 74 A. S. 235. 846 Tit.I.ch.I.] CONTRACTS. GENERALT.Y. § 1549 Interference witli contract relations, civil liability for. — See 11 A. C. 337. Interpretation of words in — As to generally, see 3 L. 859. Same — Primary meaning prevails over technical, when. — See 12 L. 375. Same — Province of court and jury in. generally, see 4 L. 204; 12 L. 376. Same — Terms of art or business, meaning of for jury. — See 12 L. 376. Intoxicated person, validity of contract made with. — See 107 A. S. 536: 54 L. 440; 2 L. N. S. 666. Into.xication, how far contract is invalidated by. — See 2 L. N. S. 666. Joint, agency existing in one contractor to act fur and biiwl another. — See 65 A. S. 683. •loint, survivorship of liability after the death of one of the obligors. — See 30 A. R. 56. 1-a.borers and materialmen, implied power to incorporate in contract for public work, or in contractor's bond, a requirement for the payment of. — See 11 L. N. S. 1028. Law, usage and custom as a part of the interpretation of con- tracts. — See 3 L. 860; 4 L. 390; 10 L. 785. Lease for more than one year — To be in writing. — S«i 7 1.. 671. Same — What is lease for one year. — See 10 L. 7 2i">. Lease to commence at future tinu — What is lease for one year. — See 10 L. 726. Letters and telegrams, unconditional offer and complete acceptance by — When contract takes effect. — See 6 A. C. 378. Liability of obligors on original contract as affected by renewal or substituted contract which Is void. — See 33 L. 628. Liability of trade-union for wrongful conduct of its agents. — See 5 A. C. 601. Limiting liability, as to.— See 7 L. N. S. 1041; 11 L. N. S. 4.12: 11 L. N. S. 560. Liquidated damages and penalty — Distinguished. — Sec 13 L. 671. Sann — Effect of u.se of tirni 'forfeiture". — See 10 L. S27. Same — Whether stipulation for payment in case of default is. — See 10 L. 826. Lowest bidder, rights of, on public contract. — See 26 L. 707. "Margin," deposit by way of, validity of. — See 3 L. 680. Marriage agreement to comply with contract as consideratioa — See 34 L. 37. Marriage as a sufficient consideration. — See 2 L. 372; 12 L. 464 Marriage-brokerage contracts. — See 104 A. S. 919. Master's contract with third person exempting latter from 847 § 1549 CIVIL CODE. [Div.III,Pt.II. liability to servants, effect of upon servant's rights.— See 46 L. 54. Matter following- signature as part of contract. — See 5 L. N. S. 436. Memorandum — Sufficiency of under statute of frauds.— See 2 L. 212; 11 L. 97. Same^-Telegrams as. — See 50 L. 240. Same — Undelivered deed as. — See 22 L. 273. Memorandum of sale of goods, requisites of. — See 11 L. 143. Merger of. — As to generally, see 15 A. D. 81. Same — Estoppel of party to deny terms of written contract. — • See 3 L. 308. Same — Preliminary negotiations merged in written contract. — See 3 L. 308. Mistake as a ground of equitable relief — As to generally, see 5 L. 153; 11 L. 857; 12 L. 273. Same — Burden of proof as to. — See 5 L. 159. Same — Evidence and character of necessary to establish. — See 5 L. 159. Same — -Mistake as to incidental or collateral matters. — See 4 L. 483. Same — Mistake as to legal effect of instrument.— See 6 L. 837. Same — Mistake of fact. — See 6 L. 836. Same- — Mistake of law or of legal right. — See 5 L. 154; 6 L. 836. Same — Must be material and void from culpable negligence. — See 4 L. 483; 6 L. 835. Same — Parol evidence to establish. — See 5 L. 158; 6 L. 838. Same— Showing of by parol evidence. — See 5 L. 158; 6 L. 838. Same — What is mistake in sense of court of equity. — See 5 L. 153; 6 L. 835; 5 W. & P. 4539. Mistake in computation by contractor as ground for relief. — See 10 L. N. S. 114. Mistake of fact, avoiding for. — See 45 A. D. 631. Modification of contract by agreement. — See 6 L. 551; 12 L. 274; 13 L. 633. Moral obligation arising from relationship, as to whether a sufficient consideration to support a promise to become respon- sible for another's debt. — See 3 L. N. S. 436. Moral obligation as a consideration — As to generally, see 53 L. 353-359. Same — Exceptions to the rule. — See 53 L. 361-375. Mortgage or sale of crops, to be in writing. — See 23 L. 450. Municipal board or committee, power to employ one of its own members as counsel or to render any other special services. —See 3 L. N. S. 849. Municipal contract— Statute legalizing invalid. — See 27 L. 696. Mutuality of — Effect upon servant's right of master's con- 848 Tit.I.ch.I.] CONTRACTS. GENERALLY. § 1549 tract with third person exempting hittor from lial>ility t<> servants. — See 46 L. 54. Same — Enforcemi-nt of unt-quivocal contract. — Sc-e, 1 L. r>.'>4; 6 L. 807. Same — For permanent employment, consideration in. — See 35 L. 515. Same — Lack of as affecting right to specific performance. — See 6 L. N. S. 391; 6 L. N. S. 403. Same — Necessity of that acceptance of pr. 581. New promise by woman after discoverture to pay debt incurred during coverture, validity of. — See 7 I^. N. S. 1053. Newspapers, public policy, contract with, when against. — Stse 93 A. S. 905. Non-performance, what excuses. — See IS A. H. 452. Not to protest against application for patent to public lands, invalid.- See 9 L. N. S. 529. Offer and acceptance — Acceptance must be une. 516. Same — Option as to performance, election. — See 12 L. 690. Same — Rights of one who completed in disregard of notice to desist. — See 16 L. 655. Same — Time of performance — As essence of contract. — See 10 L. 828: 12 L. 239-241. Same — Same — Extension of when last day of p. 477; 32 L. 597; 53 L. 337. Receipt by carrier, as to sufficiency of to satisfy statute of frauds. — See 22 L. 426. Recital in receipt of consideration. — See 3 L. 804. 853 § 1549 CIVIL CODE. [Div.III.Pt.II. Recital of money consideration in deed as contractual. — See 68 L. 925. Recovery of profits as damage for breach of contract to sell on commission. — See 10 A. C. 654. Recovery on contract by party guilty of wilful default. — See 5 A. C. &18. Reformation of — As to general jurisdiction of court of equity. — See 2 L. 64; 3 L. 189; 5 L. 156; 6 L. 200; 6 L. 838; 12 L. 273. Same — By suits in equity. — See 65 A. S. 481. "Refusal", rights conferred by. — See 21 L. 127; 7 W. & P. 6032. Relinquishment of security as sufficient consideration for deed.— See 2 L. 530. Remedies of party to contract upon anticipatory breach thereof or prevention of performance. — See 1 A. C. 427. Representative, contract made by, ratification. — See 15 L. 520; 16 L. 254; 20 L. 136; 33 L. 788. Rescinding in equity where there is no actual fraud, accident, or mistake. — See 15 A. D. 572. Rescission and abandonment — As to generally, see 1 L. 827; 9 L. 608; 17 L. 779; 24 L. 231. Same — Duty to restore or tender back what has been received. —See 1 L. N. S. 379. Same — Right to rescind by taking of worthless papers. — See 10 L. N. S. 552. Same — Right to rescind on abandonment cause of other party's fault. — See 11 L. 196; 30 L. 33-69. Rescission, how and within what time right of must be exer- cised. — See 74 A. D. 657. Rescission of, when, how, and by whom may be made. — See 50 A. D. 672. Right conferred by "refusal" or "option". — See 21 L. 127. Right of party to proceed to execute after his adversary declines to do so. — See 33 A. S. 791. Right to duplicate portrait or photograph without consent of the person under contract with whom the original was produced. —See 7 L. N. S. 362. Right to rescind by taking of worthless papers. — See 10 L. N. S. 562. Right to sue for damages for anticipatory breach of life insurance contract. — See 9 A. C. 655. Sale of office, contract of, invalid. — See 5 L. 217. Sale of property for unlawful use, invalid and price cannot be recovered. — See 15 L. 834; 61 L. 417. Sale or mortgage of crops to be in writing. — See 23 L. 450. Secret promise for individual advantage of promoter of enterprise, validity of. — See 12 L. 123. 854 Tit.I.ch.I.] CONTRACTS, GENERALLY. § 1549 Separate instruments constitute contract construed tog'ether. —See 3 L. 579. Scliool district, ratification by of unautliorized contracts. — See 20 L. 136. Shares of corporate stock, necessity of writing to make trans- fer of. — See 2 L. N. S. 804. Signing contract by mark, sufficiency of. — See 22 L. 372. Signing contract by proxy, sufficiency of. — See 22 L. 329. Stamps, internal revenue, omission of from. — See 94 A. S. 185. Standing timber, effect of contract respecting, to pass title to same. — See 6 L. N. S. 469. State's evidence, validity of agreements concerning. — See 40 A. S. 767. Statute leagalizing contract, constitutionality of. — See 22 L. 379; 27 L. 696. Statute of frauds — As affecting, conflict of laws as to. — See 64 L. 119. Same — As affecting right to assume debts on dissolution of partnership. — See 9 L. N. S. 54. Same — Agreement concerning realty, as to generally, see 2 L. 662; 3 L. 337; 5 L. 245; 7 L. 671; 10 L. 726; 12 L. 67; 15 L. 754; 16 L. 745; 19 L. 721; 20 L. 36; 23 L. 450; 26 L. 799; 27 L. 477; 32 L. 597; 53 L. 337. Same — Agreement to give property by will. — See 8 I.,. 414; 14 L. 862. Same — Contract for sale of goods, as to generally, so.> 1 1,. 507; 11 L. 143; 14 L. 230; 22 L. 426; 70 L. 320. Same — Contract for work and labor. — See 1 L. 507. Same — <:;ontract not to be performed within a year, as to generally, see 2 L. 373; 3 L. 337; 7 L. 784; 11 L. 621; 35 L. 514. Same — Contract to answer for debt or default of anotlier. — See 5 L. 617; 25 L. 26-f; 33 L. 359; 39 L. 378. Same — Contract void in part. — See 3 L. 468. Same — Effect of part performance to take contract o\it of. — See 12 L. 123. Same — Non-negotiability of contracts in violation of. — Sel* 12 L. 123. Same — Sufficiency of writing — As to generally, see 2 L. 212: 11 L. 97; 11 L. 143: 22 L. 273; 50 L. 202; 50 L. 240. Same — Same — In several writings. — See 2 L. 212. Same — Same — Memorandum, essentials of. — See 2 T>. 212; 11 L. 97, 143. Same — Same — Telegrams as writings, sufficiency of. — See 50 L. 240. Same — Same — Undelivered deed as memorandum, sufficiency of. — See 22 L. 273. Same — Symbolical delivery by sample, sufficiency of, to satisfy. — See 70 L. 321. 855 § 1549 CIVIL CODE. [Div.III,Pt.II. Same — Use as a protection to fraud. — See 25 L. 569. Same — Validity of oral insurance contract. — See 22 L. 768. Same — Validity of parol promise to accept order or bill of exchange. — See 26 L. 620. Same — Validity of promissory note given as a forfeit or as collateral to an invalid oral agreement, within. — See 18 L. 142. Same — Who is bona fide purchaser within. — See 31 L. 612. Statute of limitations— Applicability of, to action to enforce an implied promise arising from acceptance or devise charged with payment of legacy. — See 8 L. N. S. 393. Statutory liability. — See 4 W. & P. 3431. Stipulation to give satisfaction, effect of. — See 17 L. 207. Strike, existence of as excuse for nonperformance of con- tract in absence of special stipulation relating thereto. — See 12 A. C. 313. Subscription contract — Is it joint or several. — See 22 L. 880. Subscription to common object, sufficiency of consideration. — See 3 L. 468. Successive actions for breach of contract performable in installments. — See 6 A. C. 63. Sufficiency of consideration. — See "Consideration", this note. Same — ^As to generally, see 3 L. 760; 5 L. 856; 12 L. 46. Same — Benefit to promiser and detriment to promisee. — See 12 L. 465. Same — Concurrent promises. — See 12 L. 463. Same — For contract for permanent employment. — See 35 L. 515. Same — For new contract. — See 13 L. 581. Same — For subscription to common object. — See 3 L. 868. Same — For transfer by creditor in satisfaction of debt. — See 36 L. 346. Same — Marriage as. — See 2 L. 372; 12 L. 464. Same — Pre-existing debt — As a, for bona fide purchaser of property not negotiable. — See 36 L. 161. Same — Same — ^As a, for chattle mortgage as against other creditors or equities. — See 33 L. 305. Same — Promise to support person.- — See 3 L. 836; 13 L. 640. Same — Relinquishment of security as consideration for deed. — See 2 L. 530. Same — Validity of agreement to transfer future-acquired property in consideration of maintenance. — See 7 L. 485. Same — Valuable when. — See 2 L. 530. Same — Waiver of legal right. — See 3 L. 466; 12 L. 466. Sunday, extension of time when last day of performance falls on. — See 14 L. 120. Sunday, validity of contract made on. — See 3 L. 244; 4 L. 680; 7 L. 498; 11 L. 63; also "Holiday", this note. Sunday or holiday, validity of contract made on. — See 4 L. N. S. 1151; 5 L. N. S. 295; also "Holiday", this note. 856 Tit.I,ch.I.] CONTRACTS, GENERAT.T.Y. § 1549 Symbolical delivery by sample, as to sufficiency of to satisfy statute of frauds. — See 70 L. 321. Third persons, promises for the benefit of. — See 3 A. D. 305; 9 A. D. 155; 35 A. S. 331; 71 A. S. 178. Time and place of consummation of contract where offer by letter is accepted by telegram or vice versa. — See 6 L. N. S. 1016. Time of performance of contract — As essence of contract. — See 10 L. 828; 12 L. 239, 241. Same — Extension of when last day of performance falls on Sunday.— See 14 L. 120. Same — First and last days in computing. — See 49 L. 205. Same — Implied agreement as to. — See 11 L. 526. Same — Making time of the essence by demand or notice. — See 15 L. 737. Time, when contract consisting of letters or telegrams show- ing offer and unconditional acceptance is completed. — See 6 A. C. 378. Time, when of the essence of, in contracts for the sale of land. — See 104 A. S. 265. Time, when stipulations show it is made the essence of. — See 50 A. D. 597. To assign future invention upon sale of patent Invalid as against public policy. — See 2 L. N. S. 1094. To deal in futures or margins, when invalid. — See 10 A. S. 33. To do acts for the doing of which a penalty is imposed by law. — See 25 A. R. 674. To employ union labor only. — See 2 L. N. S. 292. To forbear to sue, effect of. — See 36 A. S. 145. To pay an officer of a railroad company for his own benefit, conditioned on a specified location of the road or tlie depot. — See 6 L. N. S. 524. To pay thief for return of stolon property. — See 7 Jj. N. S. 17.">. To perform work to the satisfaction of another. — See 33 A. R. 353; 54 A. S. 711. To prevent competition in trade. — See 7 A. D. 743. Trade secrets, contract restraining use of, validity. — See 13 L. 652. Transfer of property priferring creditor, void wlion. — See 3ti L. 346. Trusts, what are unlawful. — See 74 A. S. 235. Ultra vires, of corporation.s. — See 70 A. S. 156. Unconscionable, what are and whether may be bold voji). — See 33 A. R. 182; 81 A. S. 663. Unconscionable with expectant heirs and others. — Soo 41 A. R. 713. Unilateral contract, enforcement of. — See 1 I.,. 554; 6 I^. 807. Unlawful or illegal, when constitute defense against In action to recover moneys collected. — See 99 A. D. 61. 857 § 1549 CIVIL CODE. [Div.III,Pt.II. Unlicensed person, right to recover for services rendered by licensed person. — See 2 L. N. S. 392. Use of statute of frauds as a protection to fraud. — See 25 L. 569. Validity of agreement between husband and wife renouncing marital rights. — See 12 L. N. S. 848. Validity of contract — As to, generally, see 14 L. 860; 16 L. 423; 22 L. 379; 24 L. 315; 27 L. 696; 33 L. 628. Saine— Definiteness and certainty required. — See 15 L. 218; 35 L. 515; 53 L. 288-299. Same — Contract made on holiday, as to validity of. — See 3 L. 224; 4 L. 680; 7 L. 498; 11 L. 63; 19 L. 317; also "Holiday," this note. Same — Fraud or unfair advantage. — See 2 L. 817; 6 L. 498, 501; 10 L. 606; 12 L. 123; 54 L. 440-453. Same — Illegal, immoral or opposed to public policy — As to, generally, see 3 L. 631; 4 L. 682; 9 L. 506; 9 L. 657; 12 L. 121; 35 L. 513; 48 L. 822; 58 L. 181; 60 L. 406; 70 L. 485. Same — Same — Bribery or corruption. — See 3 L. 632; 4 L. 682; 5 L. 217; 12 L. 120. . » Same — Same — Denial of remedy. — See 2 L. 817; 3 L. 631; 6 L. 218; 6 L. 458; 6 L. 588; 8 L. 476; 8 L. 497; 8 L. 501; 8 L. 511; 12 L. 121; 17 L. 113; 48 L. 882. Same — Same — For services to procure legislation. — See 30 L. 737-742. Same — Same — Restraint of trade. — See 1 L. 457; 8 L. 469; 11 L. 437; 11 L. 503; 13 L. 652; 22 L. 673; 35 L. 516; 64 L. 689. Same — Same — To procure testimony. — See 19 L. 371. Same — Same^Wagering contracts. — See 1 L. 140; 1 L. 656; 3 L. 679; 3 L. 784; 4 L. 398; 5 L. 200; 6 L. 137; 7 L. 705; 12 L. 121; 12 L. 776; 64 L. 160. Same — Same — Where property sold for unlawful use, recov- ery of price. — See 15 L. 834; 16 L. 417. Same — Made by representative, ratification. — See 15 L. 520; 16 L. 257; 20 L. 136; 33 L. 788. Same — Special, and obligation to pay in gold or silver. — See 29 L. 512-523. Validity of contract for material patented or held in monopoly where a public letting to the lowest bidder is required. — See 5 L. N. S. 680. Validity of contract in a business, which it is a misdemeanor to contract. — See 12 L. N. S. 575-623. Validity of contract relinquishing rights in intended hus- band's estate, signed by intended wife in ignorance of her legal rights. — See 9 L. N. S. 953. Validity of contract when made in business carried on with- out a license, where a license is required. — See 1 L. N. S. 1159. Validity of to procure legislative action. — See 4 L. N. S. 213. 858 Tit.I.ch.I.] ESSENTIALS OF CONTRACT. § I5r,0 "Valuable consideration" — As affected by inadequacy. — See 8 W. & P. 7273. Same — Acts to be separately performed. — See 40 L. ed. 960; 8 W. & P. 7273. Same — Agreement to forbear. — See 8 W. & P. 7273. Same — Agreement to pay debt of another. — See 8 W. & V. 7273. Same — Cancelation of pre-existing- debt. — See 74 C. 444, 16 P. 242; 7 W. & P. 2773. Same — Dismissal of condemnation proceedings. — See 8 W. & P. 7273. Same — Term in deed construed. — See 2 L. 530; 8 W. & P. 7271. Verbal chattel mortgage, validity of. — See 7 L. N. S. 418. Verbal contracts for exchangi- of land, enforcibility of. — See. 5 L. 245. Voluntary deed, validity of. — See 13 L. 640. Wagering contract, as to validity of, see 1 L. 140; 1 I^. ii.')C; 3 L. 679; 3 L. 784; 4 L. 398; 5 I.. 200; 6 L. 137; 7 L. 705; 12 L. 121; 12 L. 776. Wagering policy of insurance, validity of. — See 6 L. 137. Waiver of legal right, as sufficient consideration. — See 3 L. 466; 12 L. 463. Warranty, parol evidence to siiow, notwithstanding written contract. — See 5 A. S. 197. Whether stipulated forfeiture for breach of contract is a penalty for liquidated damages. — See 1 A. C. 244; 10 A. C. 225. Will, agreement to give property Ijy. to be in writing. — Si e 8 L. 414; 14 L. 862. Witlidrawal of order given agent before acceptance by jirin- cipal, right of.— See 10 L. N. S. 1138. Written contract — Piiliminary negotiations are merged in. — See 3 L. 308. Wi-itings within statute nf frauiLs — Telegrams as. — See 50 L. 240. § 1 :>:.(). ESSEM'I.VL ELKMKXTS OF ('(»>TK.V(T. It is essential to the existence of a contract that there should l)e: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A stiflicient cause or consideration. IliMlory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 36 pars, annotation. 64 C. 108, 110, 28 P. 63 (construed and applied); 85 C. 1 1 , 30. 20 A. S. 197, 24 P. 707, 711. 9 L. 376 (construed and applied); 859 § 1550 CIVIL CODE. [Div.III,Pt.II. 115 C. 512, 515, 47 P. 250 (construed with other sections); 135 C. 561, 563, 67 P. 1054 (construed and applied); 68 P. 484 (con- strued); 139 C. 507, 512, 73 P. 247 (construed and applied); 145 C. 497, 498, 499, 78 P. 1056 (referred to). As to consent, see Kerr's Cyc. C. C. §§ 1565, 1585 and notes. As to consideration, necessity of, and what constitutes, see Kerr's Cyc. C. C. §§ 1605, 1615 and notes. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to parties, see Kerr's Cyc. C. C. §§ 1556 et seq. and notes. As to subject-matter, see Kerr's Cyc. C. C. §§ 1665, 1569 and notes. As to telegrams as writings to constitute contract within statute of frauds, see 50 L. -240, 254. As to unlawful contracts, see Kerr's Cyc. C. C. §| 1667, 1676 and notes. 860 Tit.I.ch.II.] WHO MAY MAKE. §§ 1556, 1557 CHAPTER II. PARTIES. § 1556. Who may contract. § 1557. Minors, etc. § 1558. Identification of parties necessary. § 1559. When contract for benefit of third person may be enforced. § 1556. ^VHO MAY CONTRACT. All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 54 C. 178 (construed and applied with other sections). As to contracts by persons of unsound mind, see Kerr's Cyc. C. C. §§ 38, 39, 40 and notes. As construed of infants, see Kerr's Cyc. C. C. §§ 33-37 and notes. As to contract by married women, see Kerr's Cyc. C. C. §§ 15S, 159, 167 and notes. As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1557. MINORS, ETC. Minors and persons of unsound mind, have only such capacity as is defined by part one of division one of this code. History: Enacted March 21, 1872. As to acts which infant.s would have been compelled by law to do, see 18 A. S. 641. As to contracts entered into by infants pursuant to statutfS. see 18 A. S. 638. As to contracts for necessaries, sco Kerr's Cyc. C. C. § 36 and note; 18 A. S. 643-661. As to contracts of infants, see Kerr's Cyc. C. C. §§ 33-3" and notes; 18 A. S. 573-724. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to trading contracts of infants, see Kerr's Cyc. C. C. § 36 note pars. 32, 34, 36, 37. 50. 62, 63, 70, 73. 75, 76, and note 18 A. S. 598-605. 861 §§ 1558, 1559 CIVIL CODE. [Div.III.Pt.II. § 1558. IDENTIFICATION OF PARTIES NECESSARY. It is essential to the validity of a contract not only that the parties should exist, but that it should be possible to identify them. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. ' As to many miscellaneous matters as to contracts, see note § 1549, ante. §1559. WHEN CONTRACT FOR BENEFIT OF THIRD PERSON MAY BE ENFORCED. A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 32 pars, annotation. 68 C. 383, 389, 9 P. 723 (construed and applied); 73 C. 522, 525, 15 P. 100, 101 (construed and applied); 94 C. 82, 84, 29 P. 336 (construed and applied); 95 C. 160, 168, 27 P. 160, 162, 30 P. 196 (construed and applied); 35 P. 304 (construed and ap- plied); 106 C. 547, 553, 40 P. 27 (construed and applied); 109 C. 133, 136, 41 P. 868 (construed and applied); 110 C. 339, 346, 52 A. S. 88, 42 P. 900, 31 L. 862 (construed and applied); 112 C. 255, 258, 44 P. 466 (construed and applied); 120 C. 571, 574, 65 A. S. 203, 52 P. 813 (construed and applied); 142 C. 702, 708, 76 P. 654, 655 (construed and applied); 1 C. A. 239, 240, 81 P. 1117 (applied); 2 C. A. 703, 708, 84 P. 244 (applied to release); 6 C. A. 101, 102, 91 P. 422 (applied to maker's transfer of his business). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to promise for benefit of third person, and right to sue thereon, see 3 A. D. 305; 9 A. D. 155-157; 39 A. S. 531-535; 71 A. S. 176-207. As to right of third party to sue upon contract made for his benefit, see 25 L. 257-280. 862 Tit.I.ch.III.] CONSENT, ESSENTIALS. § 1565 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, etc. § 1569. Duress, what. § 1570. Menace, what. § 1571. Fraud, actual or constructive. § 1572. Actual fraud, what. § 1573. Constructive fraud. § 1574.. Actual fraud a question of fact. § 1575. Undue influence, what. § 1576. Mistake, what. § 1577. Mistake of fact. § 1578. Mistake of law. § 1579. Mistake of foreign laws. § 1580. Mutuality of consent. § 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. ESSEMIALS OF CONSENT. The consent of the parties to a contract must be: 1. Free; 2. Mutual; and, 3. Communicated by each to the other. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 82 C. 351, 398. 16 A. S. 137, 23 P. 16 (construed and applied with other sections); 85 C. 11, 30, 20 A. S. 197, 24 P. 707. 9 L. 376 (construed and applied with other sections); 53 P. 703 (construed and applied): 123 C. 428, 431, 56 P. 103 (referred to); 125 C. 472, 481, 73 A. S. 64, 58 P. 164 (construed and 863 § 1566 CIVIL CODE. [Div.III,Pt.II. applied); 135 C. 561, 563, 67 P. 1054 (construed and applied with §1550); 139 C. 507, 512, 73 P. 247 (construed and applied with §1550); 140 C. 157, 162, 73 P. 840 (construed and applied); 151 C. 630, 635, 91 P. 536 (consent — ^contract cannot be rescinded when); 4 C. A. 371, 376, 88 P. 294 (instance of consent as result of mistake). As to acceptance of proposal consummating the contract, see 21 A. D. 305. As to communication of consent, see Kerr's Cyc. C. C. §§ 1581, 1582 and notes. As to effect of uncertainty in any particular, see 32 A. R. 51. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to meeting- of minds and acceptance, see 3 L. 94. As to mode of communicating consent. See Kerr's Cyc. C. C. § 1582 and note. As to mutuality of acceptance, see Kerr's Cyc. G. C. § 1580 and note; also 7 A. D. 492. As to necessity of acceptance in accordance with terms of offer, see 32 A. R. 51. As to necessity of acceptance within a reasonable time, see 32 A. R. 52. As to rescission of contract, see Kerr's Cyc. C. C. § 1689 and note. As to sufficiency of contract by offer and acceptance with- out execution of contemplated formal agreement, see 29 L. 431-437. As to where consent obtained by fraud, etc., see Kerr's Cyc. C. C. §§ 1568-1575 and notes. §1566. COIVSEIVT, WHEJf VOIDABLE. A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties, in the manner prescribed by the chapter on rescission. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 71 C. 428, 440, 12 P. 454, 460 (construed and applied with other sections); 82 C. 351, 399, 16 A. S. 137, 23 P. 16 (construed and applied with other sections); 85 C. 11, 30, 20 A. S. 197, 24 P. 707, 9 Tj. 376 (construed and applied with other sections); 95 C. 636, 639, 30 P. 787 (cited); 40 P. 488 (cited); 110 C. 374, 379, 42 P. 896 (construed and applied with §1691); 126 C. 498, 504, 58 P. 1053 (applied to application for life insurance policy); 129 C. 68, 82, 84, 85, 58 P. 92, 61 P. 667 (construed and applied with other sections); 68 P. 484 (construed with §1578); 150 864 1 Tit.T.ch.TIT.] APPARENT CONSENT. § 1557 C. 370, 373, 89 P. 109 (consent given through mistake is subject to rescission); 151 C. 630, 635, 91 P. 526 (consent — contract can- not be rescinded when); 7 C. A. 49, 55, 93 P. 400, 402 (applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to rescission of contract, see Kerr's Cyc. C. C. §§ 16S8- 1691 and notes. § 1567. APPARENT CONSENT, WHEN NOT FREE. Au apparent conseut is not real or free when obtained through: 1. Duress; 2. Menace; 3. Fraud; 4. Undue Influence; or, 5. Mistake. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 71 C. 428, 440, 12 P. 454, 460 (construed and applied witli other sections); 82 C. 351, 399, 16 A. S. 137, 23 P. 16, 28 (construed and applied with other sections); 85 C. 11, 30, 20 A. S. 197, 24 P. 707, 711, 9 L. 376 (construed and applied with other sec- tions); 40 P. 488, 489 (construed and applied with §1570); 129 C. 68, 85, 58 P. 92, 61 P. 667 (construed and applied with other sections); 134 C. 547, 548, 86 A. S. 294, 66 P. 730 (construed with other sections); 141 C. 56, 62, 74 P. 433 (construed and applied); 150 C. 370, 373, 89 P. 109 (consent given through mis- take is subject to rescission); 151 C. 630, 635, 91 P. 526 (consent — contract cannot be rescinded when); 4 C. A. 371, 376, SS P. 294 (subds. 3-5 applied — illustration of deed having been ob- tained by undue Influence); 7 C. A. 49, 53, 93 P. 400, 402 (applied); 94 P. 419, 421 (referred to). As to carelessness as a bar to relief, see 32 A. S. 384-388. As to duress, see Kerr's Cyc. C. C. § 1569 ajid note. As to fraud, see Kerr's Cyc. C. C. §§ 1571, 1574 and notes. As to many niiscellanenus matters as to contracts, src^ note § 1549. ante. As to menace, see Kerr's C.vc. C. C. S 1570 and noti^ As to misreprc.seiitatiiins, see Kerr's Cyc. C. C. § 1568 and note. As to mistake, see Kerr's Cyc. C. C. § 1576-1579 and notes. As to rescission of contract, see Kerr's Cyc. C. C. 8 1689 and note. As to undue iiitUunce, see Kerr's Cyc. C. C. § 1575 and note. Kerr's C. C. — 28 865 §§ 1568, 1569 CIVIL, CODE. [Div.III,Pt.II. § 1568. WHEN DEEMED TO HAVE BEEN OBTAINED BY FRAUD, ETC. Consent is "deemed to have been obtained tbrougb one of the causes mentioned in the last section only when it would not have been given had such cause not existed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 92 pars, annotation. 82 C. 351, 399, 16 A. S. 137, 23 P. 16, 28 (construed and applied with other sections); 85 C. 11, 30, 20 A. S. 197, 24 P. 707, 711, 9 Li. 376 (construed and applied with other sections); 130 C. 194, 198, 62 P. 398 (construed and applied with other sections); 138 C. 668, 671, 72 P. 149, 150 (construed and applied with other sections); 145 C. 441, 448, 79 P. 420 (referred to); 147 C. 439, 444, 82 P. 45 (referred to in considering contract to exchange land for oil stock); 151 C. 630, 635, 91 P. 526 (consent — contract cannot be rescinded when). As to action to recover for false representations, see 18 A. S. 555, 563. As to instruction of jury on questions of misrepresentation, see Kerr's Cyc. C. C. § 1574 and note. As to expression of opinion as fraud, see 35 L. 417, 441. As to knowledge of insolvency and non-disclosure of same affecting contract, see 33 A. D. 707. As to liability for misrepresentations made directly to com- plaining party, see 85 A. S. 368. As to liability for recommendations for credit, see 25 A. S. 447, 451. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to right of action for false representations, see 1 L. 774; 2 L. 743; 4 L. 158; 6 L. 219; 11 L. 196. As to right to rely upon representations made to affect con- tract as a basis for a charge of fraud, see 37 L. 593, 615. As to suppression of facts, see Kerr's Cyc. C. C. § 1710 and note. As to what statements made at time of contract do not amount to misrepresentation, see 15 A. R. 382. §1569. DURESS, WHAT. Duress consists in: 1. Unlawful confiueiiieut of the person of the party, or of the husband or wife of such party, or of an ancestor, descend- ant, or adopted child of such party, husband, or wife; 2. Unlawful detention of the property of any such person; or, 866 I Tit.r.ch.rri.] menace, what is. 51570 3. ('oiitiiH-iiiciit of Mich person, Isn^fiil in form, but frandu- leutly obtained, or fraudulently iiuidt' unjustly hiiiassinii or oppressive. Ili-Htory: Enacted :Maroh 21, 1S7L'. Set' Kerr's Cyc. C. C. for 51 pars, annotation. 93 C. 452. 455. 27 A. S. 207. 28 P. 1068. 1069 (construed and applied with §1670); 98 C. 557. 575, 33 P. 633 (construed and applied): 107 C. 303, 308 (erroneously cited for S1369), 40 P. 558. 560 (correct citation); 130 C. 194. 198. 62 P. 398 (construed and applied with other sections); 7 C. A. 49, 53, 93 P. 400, 402 (applied); 13 F. 789, 791 (payment under valid assessment is not payment under duress). As to contracts secured by throats of prosecution of relative, see 26 L. 48, 66. As to duress by threat or menace, see Kerr's Cyc. C. C. S 1570 and note. As to duress sufficient to avoid marriage contract, see note 43 L. 814-819; 40 A. S. 174. As to equitable relief against contract obtained by duress, see C L. 491. As to many miscellaneous matters as to contracts, see note S 1549, ante. As to menace, see Kerr's Cyc. C. C. S 1570 and note. As to recovery of money paid under contract obtained by duress, see 6 L. 491. As to rescission of contract on groimd of duress, see Kerr's Cyc. C. C. i 1689 and note; 6 L. 491. As to what constitutes duriss. see 7 L. 551; 9 !>. 631; 26 A. D. 374, 378. As to when duress is sufficient to avoid contract of wife, see 32 A. S. 185. § 1570. MENACE, >ViIAT. Menace consists in a threat; 1. Of such duress as is specified in subdivisions one and three of the last section ; 2. Of unlawful and violent injury to the person or property of any such person as is si)ecified in the last section; or. 3. Of injury to the character of any such person. illHtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 40 pars, annotation. 93 C. 452. 455. 27 A. S. 207, 28 P. 1068. 1069 (construed and applied with other sections); (C. May 8. 189.5), 40 P. 488. 489 (constrtied and applied); 130 C. 194, 198, 62 P. 398 (construed and apiiliid with other sections). 867 §§ 1571, 1572 CIVIL CODE. [Div.III,Pt.II. As to contract procured by threat of prosecution of a rela- tive, see 26 L. 48-66. As to contracts obtained by duress other than duress by threat or menace, see Kerr's Cyc. C. C. § 1569 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1571. FRAUD, ACTUAL OR CONSTRUCTIVE. Fraud is either actual or constructive. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 78 C. 221, 225, 20 P. 404 (referred to); 82 C. 351, 383, 16 A. S. 137, 23 P. 16, 23 (construed and applied); 85 C. 11, 30, 20 A. S. 197, 24 P. 707, 711, 9 L. 376 (construed and applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1572. ACTUAL. FRAUD, WHAT. 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 con- nivance, with intent to deceive another party thereto, or to induce him to enter into the contract:' 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 warranted 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 105 pars, annotation. 56 C. 350, 365 (construed with § 1573); 65 C. 397, 402, 4 P. 385, 388 (construed and applied with §1573); 75 C. 525, 527, 7 A. S. 189, 17 P. 689, 690 (construed and applied); 77 C. 22, 26, 18 P. 791, 793 (construed and applied with §1710); 78 C. 126, 131, 12 A. S. 29, 20 P. 382, 384 (construed and applied); 78 C. 221, 225, 20 P. 404 (construed and applied with § 1571); 79 C. 313, 316, 21 P. 758 (construed and applied); 82 C. 351, 383, 16 A, S. 137, 23 868 Tit.I.ch.III.] ACTUAL FitArn. 5 157L' p. 16, 113 (construed and applied); 84 C. 646, 649. 24 P. 597. 598 (construed and ai)plled); S8 C. 473. 477. U6 P. 35'J. 353 (constru<'d and applied); 88 C, 660, 565. 26 P. 367. 368 (construed and ap- * plied): 93 C. 329. 359. 28 P. 1053. 1059 (construed ami api)ll.'d): 96 C. 433. 440. 31 P. 35.S. 360 (construed and applied witli i 1710); 103 C. 37. 42. 36 P. 1036 (construed and applied i; 122 C 5so. 581. 68 A. S. 70. 55 P. 406 (con.strued and applied »: 127 C. 632. 535. 78 A. S. 81. 59 P. 991 ( innstru.d and aijplled): 131 C. 472. 477. 178, 63 P. 775 (construed and applie. 92. As to fraud to defeat d..w. r. see S U SI 4. As to Imprisonment for debt in case of fraud, se.' 3 4 \^ 634-642. 671. As to Intent In concealment of Insolvency as ground of fraud. see 14 L. 264. As to liability of corporation ottii .rs f.ir •ompany's fraud, see 28 L. 421-427. 869 § 1573 CIVIL CODE. [Div.III,Pt.II. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to misrepresentations, see Kerr's Cyc. C. C. § 1568 and note. As to necessity of moral turpitude in legal fraud, see brief 61 L. 178. As to recovery of judgment on note and mortgage as bar to action for fraud in obtaining loan, see "effect of election of remedies in case of fraudulent purchase," 15 L. 89, 90. As to recriminatory fraud as defense, see 31 A. S. 727. As to relief from judgment rendered on publication of proc- ess, see 16 L. 361. As to replevin for property obtained by fraudulent purchase, see 21 L.. 206-209. As to representations to commercial agencies, see 14 L. 264. As to rescinding contract on ground of fraud, see 2 L. 153. As to right to rely upon representations made to effect con- tract as basis for charge of fraud, see 37 L. 593-615. As to right to recover injuries suffered from acting upon false representations, see 88 A. D. 442. As to rights of parties to fraudulent or illegal transaction, see 34 A. D. 735. As to silence when deemed fraudulent, see 1 L. 742. As to what constitutes actionable deceit, see brief 61 L. 305. As to what constitutes fraud, see 4 L. 158; 6 L. 149. As to what is sufficient proof of fraud, see 65 A. D. 157. As to when deed is void for fraud at law, see 93 A. D. 596. Insolvency, see Kerr's Cyc. C. C. § 1568 and note. § 1573. CONSTRUCTIVE FRAUD. Constructive fraud con- sists: 1. In any breach of duty which, without an actually fraudu- lent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his preju- dice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 10 pars, annotation. 56 C. 350, 365 (construed with §1572); 65 C. 397, 402, 4 P. 385, 388 (construed and applied with §1572); 91 C. 15, 18, 27 P. 599, 600 (construed and applied); 134 C. 662, 663, 66 P. 847 (construed and applied). As to constructive fraud, see 4 L. 158. 870 Tit.I,ch.III.] UNDUE INFLUENCE. §§ 1574, I575 As to many miscellaneous matters as to contracts, see note § 1549, ante. As to misrepresentations, see Kerr's Cyc. C. C. ^1568 and note. As to parol evidence to prove constructive fraud, see Kerr's Cyc. C. C. § 1572 and note. § 1574. ACTUAL FRAUD A QUESTION OF FACT. Actual fraud is always a question of fact. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 35 pars, annotation. 119 C. 429, 434, 51 P. 630, 632 (construed and applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1575. UNDUE INFLUENCE, WHAT. Undue Influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 66 pars, annotation. 56 C. 89, 93 (construed and applied); 79 C. 313, 316, 21 P. 758 (construed and applied); 90 C. 323, 336, 27 P. 186, 190 (con- strued and applied); 94 C. 642, 646, 30 P. 4 (construed and applied with other sections); 97 C. 259, 262, 32 P. 171 (con- strued and applied with other sections); 103 C. 97, 102, 37 P. 189 (construed and applied with other sections); 134 C. 170, 174, 66 P. 231 (construed and applied); 135 C. 316, 318, 67 P. 778 (construed and applied); 141 C. 56, 62, 74 P. 433 (construed and applied with other sections); 4 C. A. 371, 376, 88 P. 294 (instance of deed obtained by undue influence. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to undue influence in wills, see Kerr's Cyc. C. C. § 1272 and note. As to what is undue influence and its effect, see 2 L. 668; 8 L. 261. 871 §§1576,1577 CIVIL CODE. [Div.III,Pt.II. § 1576. MISTAKE, WHAT. Mistake may be either of fact or law. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 87 pars, annotation. 96 C. (i55, 659. 31 A. S. 247, 31 P. 623, 624 (construed and applied with § 473 C. C. P.). As to avoidance of contracts on ground of mutual mistake of facts, see 45 A. D. 631-634. As to carelessness as bar to relief, see 32 A. S. 384-388. As to change of decision of state court as an unconstitutional impairment of contract, see 16 L. 646. As to correction of clerical errors, see 9 Paige Ch. (N. Y.) 4 L. ed. 661. As to ignorance of right as ground for relief, see 55 A. S. 494-520. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to mistake generally, see 6 L. 835-838. As to mistake as ground for injunction against judgment, see 30 L. 786-802. As to mistake as ground for relief in equity, see 4 L. 483; 5 L. 152; 12 L. 273. As to possession taken and held through ignorance or mis- take, see 24 A. S. 388-390. As to power of court of equity to reform contracts upon ground of mistake, see 13 F. 256-259. As to reformation of contracts upon ground of mistake, etc., see 65 A. S. 481-522. As to relief against judgment obtained by default through mistake of attorney, see 36 A. S. 635. As to relief on ground, of mistake or fraud, see 7 A. D. 567. As to reformation of instruments for mistake, see 55 A. S. 590. As to rescission of contracts in equity for mistake of fact, see 55 A. S. 590. As to want of evidence to prove mistake and reform instru- ments, see 55 A. S. 590. § 1577. MISTAKE OF FACT. Mistake of fact is a mistake, not caused 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 material to the 872 Tit.I.ch.III.] MISTAKE OF LAW. § 1578 contract, which does not exist, or in the past existence of such a thing, which has not existed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 19 pars, annotation. 68 C. 611, 616, 10 P. 179, 182 (referred to); 119 C. 429, 435, 436, 51 P. 630, 632 (construed and applied); 119 C. 463, 468, 51 P. 704 (construed and applied with other sections) ; 54 P. 80, 83 (construed and applied); 122 C. 98, 100, 54 P. 528 (construed and applied); 131 C. 635, 639, 63 P. 1005 (construed and applied); 134 C. 381, 384, 66 P. 474 (construed and applied); 138 C. 668, 671, 72 P. 149, 150 (construed and applied with other sections); 144 C. 104, 110, 77 P. 828 (construed and applied); 150 C. 21, 27, 87 P. 1029 (applied — carelessness in failing to read deed); 150 C. 370, 373, 89 P. 109 (distinction between "unconscious ignorance" of fact of loss and "belief" in present existence of property insured, when not material); 4 C. A. 371, 376, 88 P. 294 (instance of deed obtained by undue influence). As to avoidence of contract for mutual mistake of facts, see 45 A. D. 631-634. As to carelessness as bar to relief, see 32 A. S. 384-388. As to ignorance of fact as defense, see note 30 A. R. 617- 620; 55 A. S. 512-514. As to ignorance or mistake of facts and equitable relief, see 55 A. S. 504. As to innocence of .mistake of facts, see 55 A. S. 504-507. As to many miscellaneous inatters as to contracts, see note § 1549, ante. § 1578. MISTAKE OF LAW. Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from: 1. A inisapprehonsioii of the law hj all parties, all suppos- ing that they knew and understood it, and all making substan- tially the same mistake as to the law; or, 2. A misappreliensiou of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 60 pars, annotation. 95 C. 63, 74, 30 P. 301 (construed and applied); 119 C. 463, 468, 469, 51 P. 704 (construed and applied); 127 C. 532, 537, 78 A. S. 81, 59 P. 991 (construed and applied); 129 C. 475, 478, 62 873 §§ 1579, 1580 CIVIL CODE. [Div.III.Pt.II. P. 72 (construed and applied); 130 C. 478, 479, 62 P. 734 (con- strued and applied); 134 C. 547, 548, 86 A. S. 294, 66 P. 730 (construed and applied); 68 P. 484, 486 (construed and applied); 138 C. 668, 671, 72 P. 149 (construed and applied with other sections); 3 C. A. 422, 426, 89 P. 358 (subd. 2 applied — defend- ant's mif^take of law). As to carelessness as bar to relief, see 32 A. S. 384. As to distinction existing between ignorance and mistake of law, see 23 A. D. 164. As to ignorance of law, see 10 A. D. 323-328; 15 A. R. 171- 384; 12 A. S. 130; 55 A. S. 497; 5 L. 152; 6 L. 35; 9 Paige Cli. (N. Y.) 4 L. ed. 661-663. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to mistake in contracts and equitable relief for same, see 14 A. S. 440. As to mistake in law, and when relieved against in equity, see 76 A. D. 550. As to negligence as bar to relief against judgments, see 53 A. S. 444-453. 900. As to relief against deeds in judicial sales, see 65 A. S. 514. As to relief against guaranty or suretyship, see 65 A. S. 521. As to relief against leases and releases on ground of mis- take, see 65 A. S. 520. As to reformation of contracts on ground of mistake, see 65 A. S. 481, 507, 514. As to relief against note on ground of mistake, see 65 A. S. 519. As to relief against voluntary conveyance on ground of mis- take, see 65 A. S. 521. As to relief froni mortgage on ground of mistake, see 65 A. S. 517-519. As to relief in insurance policies, see 65 A. S. 514-517. §1579. MISTAKE OF FOREIGN LAWS. Mistake of for- eign laws is a mistake of fact. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to proof of foreign laws, see Kerr's Cyc. C. C. P. §§ 1900, 1901 and notes; 25 L. 449-468. §1580. mJTUALITY OF CONSENT. Consent is not mutual, unless the parties all agree upon the same thing in 874 Tit.I.ch.III.] CONSENT, ACCEPTANCE. §§ 1581, 1582 the same sense. But in certain cases defined by the' chapter on interpretation, they are to be deemed so to agree without regard to the fact. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 54 pars, annotation. 60 C. 387, 392 (construed with §2832); 137 C. 685, 692, 70 P. 771 (construed with §2832); 1 C. A. 749, 751, 752, 82 P. 1055 (no contract by letters when, for lack of mutual consent). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to option contract, see 24 A. S. 24. As to rights conferred by a refusal of option, see 21 L. 12.7- 133. § 1581. COMirUMCATION OF CONSENT. Consent can be communicated with effect, only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such communication. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 140 C. 157, 162, 73 P. 840 (necessity of parties to contract communicating consent, to whom, and how). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1582. MODE OF COMMUNICATING ACCEPTANCE OF PROPOSAL. If a proposal prescribes any conditions concern- ing the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 115 C. 512, 515, 47 P. 250 (construed and applied with other sections); 123 C. 428, 431, 56 P. 103 (construed and applied with other sections). As to conditional execution of contract under parol agree- ment that it shall not take effect until others have signed it, see note 45 L. 321-348. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to necessity of acceptance being unconditional, see note 32 A. R. 51. 875 §§ 1583, 1584 CIVIL CODE. [Div.III,Pt.II. As to when immaterial addition to acceptance does not avoid it, see note 32 A. R. 51, 52. §1583. WHEN COMMUMCATIOIV DEEMED COMPLETE. Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in confer'^ ity to the last section. History: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 14 pars, annotation. 123 C. 428, 4"1, 56 P. 103 (construed and applied with other sec- tions). As to acceptance by letter, see 72 A. D. 38; 93 A. D. 515; 32 A. R. 52. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to when letter and telegram do not constitute an accept- ance, see 48 A. R. 519. §1584. ACCEPTANCE BY PERFORMANCE OF CONDI- TIONS. Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 29 pars, annotation. 141 C. 699, 706, 75 P. 329 (construed and applied with § 1589). As to claims against state for rewards, see 42 L. 33, 54, 63, 72. As to contract and offer of reward, see 14 A. S. 69. As to gift of promissory note given for subscription, see 26 L. 305-307, 308. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to necessity of notice of acceptance, see 73 A. D. 638. As to offer of reward for finding property, see 37 L. 111-126. As to reward for arrest, see 11 L. 398. As to right to recover subscription, see 13 A. D. 458; 58 A. D. 714; 82 A. D. 121. As to subscription for erection of church, see 79 A. D. 511. As to subscription to common object, see 3 L. 468. As to time for which reward is operative, see 26 A. R. 10. As to validity of subscription to church made on Sunday, see 59 A. D. 713; 32 A. R. 560; 38 A. R. 165. As to what is general offer of reward, see 26 A. R, 8. 876 I Tit.T.ch.IIT.] ACCEPTANCE— REVOCATION. §§ 1585-1587 As to what is performance of offer of reward, see 73 A. D. 639; 26 A. R. 7-9. As to when advertisement offering reward may become con- tract, see 73 A. D. 638, 639. As to when finder of lost property is entitled to, see 26 A. R. 9. As to when information leading to arrest entitles party to reward, see 26 A. R. 7-9. As to whether subscription contract is joint or several, see 22 L. 80-83. Subscriptions.— As to forfeiture of subscription contract on breach of condition, see 13 L. 698. §1585. ACCEPANCE MUST BE ABSOLUTE. An accept- ance must be absolute and unqualified, or must include in itself an acceptance 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 82 C. 84, 87, 22 P. 1136, 1137 (construed and applied); 140 C. 157, 161, 73 P. 840 (construed and applied); 145 C. 623, 625, 79 P. 366 (construed and applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1586. REVOCATION OF PROPOSAL. A proposal may be revoked at any time before its acceptance is communicated to the proposer, but not afterwards. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 82 C. 84, 87, 22 P. 1136, 1137 (construed and applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1587. REVOCATION, HOW MADE. A proposal is revoked : 1. By the communication of notice of revocation by the pro- poser to the other party, in the manner prescribed by sections fifteen hundred and eighty-one and fifteen hundred and eighty- three, before his acceptance has been communicated to the former ; 2. By the lapse of the time prescribed in such proposal for 877 §§ 1588, 1589 CIVIL CODE. [Div.III,Pt.II. its acceptance, or if no time is so prescribed, the lapse of a reasonable time without communication of the acceptance; 3. By the failure of the acceptor to fulfil a condition prece- dent to acceptance; or, 4. By the death or insanity of the proposer. History: Enacted March 21, 1872. See Kcii'o Gyc. C. C. for 17 pars, annotation. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to responsibility of personal representatives for proposal of a decedent, see 22 A. S. 815. § 1588. RATIFICATION OF CONTRACT, VOID FOR WANT OF CONSENT. A contract which is voidable solely for want of due consent, may be ratified by a subsequent consent. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 130 C. 431, 433, 62 P. 749 (construed and applied with § 1589). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1589. ASSUMPTION OF OBLIGATION BY ACCEPT- ANCE OF BENEFITS. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obliga- tions arising from it, so far as the facts are known, or ought to be known, to the person accepting. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 86 C. 574, 577, 21 A. S. 63, 25 P. 52, 53, 10 L. 369 (construed and applied); 100 C. 67, 72, 34 P. 527 (construed and applied): 105 C. 292, 296, 297, 298, 38 P. 726 (construed and applied); 113 C. 221, 231, 236, 41 P. 1017, 45 P. 252 (construed and ap- plied with other sections); 113 C. 558, 561, 45 P. 838 (con- strued and applied); 120 C. 571, 574, 65 A. S. 203, 52 P. 813 (construed); 130 C. 431, 433, 62 P. 749 (construed and applied with §1588); 137 C. 22, 25, 69 P. 698 (construed and applied); 141 C. 699, 706, 75 P. 329 (construed and applied); 144 C. 104, 112, 77 P. 828 (construed and applied with other sections); 2 C. A. 393, 397, 84 P. 324 (applied to contract, by mining- cor- poration, employing- superintendent). As to many miscellaneous matters as to contracts, see note § 1549, ante. 878 Tit.I.ch.IV.] OBJECT OF, WHAT. §§ 15^5-1597 CHAPTER IV. OBJECT OF A CONTRACT. § 1595. Object, what. § 1596. Requisites of object. § 1597. Impossibility, v/hat. § 159S. When contract wholly void. § 1599. When contract partially void. § 1595. OBJECT, 'WHAT. The object of a contract is the thing which it is agreed, on the part of the party receiving the consideration, to do or not to do. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 126 C. 591, 598, 77 A. S. 209, 59 P. 36 (construed with other sections). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1596. REQUISITES OF OBJECT. The object of a con- tract must be lawful when the contract is made, and possible and ascertainable by the time the contract is to be performed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1597. IMPOSSIBILITY, WHAT. Everything is deemed possible except that which is impossible in the nature of things. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 28 pars, annotation. (C. Dec. 23, 1885), 9 P. 106 (construed and applied). As to act of God, see Kerr's Cyc. C. C. § 1511 pars. 2-11, note: and § 1714 note par. 5. As to impossibility arising from act of God, see Kerr's Cyc. C. C. § 1511 note pars. 2-11; § 1714 note par. 5. 879 1598,1599 CIVIL CODE. [Div.III.Pt.II. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to what excuses performance, see Kerr's Cyc. C. C. § 1511 and note. §1598. WHEN CONTEACT WHOLLY VOID. Where a contract has but a single object, and such object is unlawful, whether in whole or in part, or wholly impossible of per- formauce, oi sc vaguely expressed as to be wholly unascer- tainable, the entire contract is void. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 132 C. 63, 65, 64 P. 131, 469 (construed and applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1599. WHEN CONTRACT PARTIALLY YOID. 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 contract is void as to the latter and valid as to the rest. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 47 pars, annotation. 59 C. 678, 682 (construed and applied); 34 P. 700 (construed and applied); 136 C.-656, 660, 69 P. 495 (construed and applied). As to building and analogous contracts and their entirety, see 59 A. S. 285-289. As to divisibility of contracts in restraint of trade, see 92 A. D. 764, 765. As to entirety of contract for personal services, see 59 A. S. 289-291. As to entirety of contracts and when complete performance is essential to cause of action, see 59 A. S. 277-295. As to full performance of entire contracts, generally, see 59 A. S. 281-283. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to right to recover on a quantum meruit, see 1 L. 827. As to right to rescind contract, see 1 L. 826. As to what contracts are divisible, see 59 A. S. 279-281. As to what is an entire contract, see 59 A. S. 277-279. As to whether contract is entire or severable, see 1 L. 826, 827. 880 Tit.I,ch.V.] GOOD CONSIDERATION. § 1605 CHAPTER V. CONSIDERATION. § 1605. Good consideration, what. § 160G. How far legal or moral obligation is a good consideration. § 1607. Consideration lawful. § 160S. Effect of its illegality. § 1609. Consideration executed or executory. § 1610. Executory consideration. § 1611. How ascertained. § 1612. Effect of impossibility of ascertaining consideration. § 1613. Same. [Possible of execution on face.] § 1614. Written instrument presumptive evidence of consideration. § 1615. Burden of proof to invalidate sufficient consideration. § 1605. GOOD CONSIDERATION, WHAT. Any benefit con- ferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor 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 law- fully bound to suffer, as an inducement to the promisor, is a good consideration for a promise. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 168 pars, annotation. 89 C. 643, 654, 27 P. 65, 66 (construed and applied); 104 C. 239, 242, 37 P. 904 (construed and applied); 40 P. 39, 40 (con- strued and applied); 126 C. 591, 598, 77 A. S. 209, 59 P. 36 (con- strued and applied with other sections); 68 P. 484, 485 (con- strued and applied); 139 C. 165, 168, 72 P. 905 (construed and applied); 145 C. 497, 500, 78 P. 1056 (construed and applied); 2 C. A. 715, 719, 84 P. 249 (delivery of insurance policy to one entitled to it is not sufficient consideration for what promise) ; 3 C. A. 246, 248, 84 P. 1000 (applied — what agreement is suffi- cient consideration); 3 C. A. 414, 416, 86 P. 824 (applied); 3 C. A. 561, 567, 86 P. 820 (distinct benefit conferred is sufficient consideration). As to additional promises on both sides, see 34 L. 33-37. As to agreement to comply with lease as consideration for new promise, see 34 L. 33-36. As to compliance with obligation to deliver property, see 34 L. 33-35. 881 § 1606 CIVIL CODE. [Div.III.Pt.II. As to consideration in contract for permanent employment, and similar agreements, see 35 L. 512-515, 517. As to consideration in subscription contract to common object, see 3 L. 468. As to contract consideration of which contravenes statutes, see 35 A. S. 806. As to forbearance to sue as consideration to support prom- ise, see.fiO A. D. 524-527; 36 A. S. 145-147. As to many iiiiscellaneous matters as to contracts, see note § 1549, ante. As to marriage as valuable consideration, see 12 L. 463. As to meritorious consideration, see 34 A. S. 191-193. As to mutual or concurrent promises, see 12 L. 463. As to necessity and sufficiency of consideration, see 3 L. 468, 761; 5 L. 856; 12 L. 463; 13 L. 581. As to payment of existing debt as consideration, see 34 L. 33-44. As to performance of an act which party has agreed to do as the consideration to support, contract with third party, see 34 L. 33-43. As to performance of existing contract obligation as consid- eration for new promise, see 34 L. 33-44. As to position of party taking negotiable paper as collateral security without new consideration, see 71 A. D. 499; 73 A. D. 88; 84 A. D. 405. As to promise not to sue, see 34 L. 33-35. As to promise to do duty as consideration, see 34 L. 33-37. As to promise to release joint debtor, see 34 L. 35. As to promises of additional compensation for completing contract, see 34 L. 33-38. As to pre-existing debt as valuable consideration, see 9 A. D. 272, 273; 12 A. D. 136; 68 A. D. 321; 89 A. D. 411; 33 A. R. 46; 8 A. S. 841; 14 A. S. 583; 32 A. S. 711, 712. As to validity of chattel mortgages to secure pre-existing debts, see 29 A. S. 483. As to voluntary payment of another's debt, as consideration, see 8 A. S. 841. As to when consideration is valuable, see 2 L. 530. Marriage contract, as to agreement to comply with, see 34 L. 33-37. § 1606. HOW FAK LEGAL OR MORAL OBLIGATION IS A GOOD CONSIDERATION. An existing legal obligation rest- ing upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suf- fered by the promisee, is also a good consideration for a 882 Tit.I,ch.V.] LAWFUL CONSIDERATION. § igOT promise, to an extent corresponding with the extent of the obligation, but no further or otherwise. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 48 pars, annotation. 112 C. 197, 205, 44 P. 557 (construed and applied); 3 C. A. 561, 567, 86 P. 820, 822 (applied to order to pay money to become due). As to cause of action on new promise to pay debt barred by statute of limitations, see 95 A. D. 175. As to consideration of promise by widow to pay debt con- tracted during coverture, see 39 A. S. 742, 743. As to consideration of promise to pay after debt released, see 39 A. S. 736-739. As to consideration of promise to pay debt barred by statute of limitations, see 39 A. S. 739, 740. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to mere moral obligation as consideration to uphold an express promise, see 39 A. S. 735-746. As to moral obligation imposed upon wife to pay husband's debts, see Kerr's Cyc. C. C. § 1605 and note. As to past act or transaction not being sufficient considera- tion, see 39 A. S. 740-742. As to promise to pay debt discliarged in bankruptcy, see 27 A. D. 287, 289. As to what is sufficient to take case out of statute of limita- tions, see 57 A. R. 334-336. As to wife's promise to pay husband's pre-existing debt barred by statute of limitations, see Kerr's Cyc. C. C. § 1605 and note. §1607. CONSIDERATION LA^YFUL. The consideration of a contract must be lawful within the meaning of section sixteen hundred and sixty-seven. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 31 pars, annotation. 68 C. 29, 30, 8 P. 614, 615 (construed and applied with other sections); 82 C. 642, 643, 23 P. 273, 274 (construed and applied with §1608); 83 C. 173, 177, 23 P. 286, 288 (construed and applied with other sections); 125 C. 119, 122, 73 A. S. 31, 57 P. 777, 45 L. 420 (construed and applied with other sections); 150 C. 159, 161, 88 P. 708 (consideration of notes given for gambling debt is contra bonos mores); 46 F. 564, 567 (applied with §§ 1608, 1615, and 1667 — mere want of consideration distin- guished from illegal consideration — prima facie case of notice). 883 § lg08 CIVIL, CODE. [Div.III,Pt.II. As to action upon contract forbidden by law or subject to penalty, see 73 A. S. 39. As to application of the maxims ex turpi contractu non oritur actio and in pari delicto potior est conditio defendentis, see 30 A. R. 106-112. As to cohabitation as consideration, see 12 A. D. 676, 677. As to compounding of felony and dismissal of prosecution for as valuable consideration, see 49 A. R. 49-51. As tc- ^o'-.tract<^ consideration of which is agreement to com- pound or stifle criminal prosecutions, see 31 A. D. 600-604. As to illegal contracts, see Kerr's Cyc. C. C. § 1667 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1608. EFFECT OF ITS ILLEGALITY. If any ^part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 44 pars, annotation. 68 C. 29, 30, 8 P. 614, 615 (construed and applied with other sections); 82 C. 642, 643, 23 P. 273, 274 (construed and applied with §1607); 83 C. 173, 177, 23 P. 286, 288 (construed and applied with other sections); 96 C. 106, 112, 31 A. S. 192, 30 P. 1022, 1024 (construed and applied); 125 C. 119, 122, 73 A. S. 31, 57 P. 777, 45 L. 420 (construed and applied with other sections); 131 C. 379, 384, 63 P. 692 (construed and applied); 136 C. 63, 67, 68 P. 324 (construed and applied); 149 C. 667, 676, 87 P. 276 (whatever may be effect of this section as to contracts which are executory in whole or in part, it cannot be construed so as to permit grantor of property who has received and retained consideration for his conveyance to recover the property upon the sole ground that the considera- tion was unlawful in part); 46 F. 564, 567 (applied with §§1607, 1615, and 1667 — mere want of consideration distinguished from illegal consideration — prima facie case of notice). As to actions upon illegal contracts, see 8 A. D. 691. As to effect of illegality, see 9 Cyc. 546-576. As to consideration tending to obstruct the administration of justice, see 37 A. D. 203. As to consideration which is the stifling of a criminal prose- cution, see 31 A. D. 600; 22 A. R. 121; 49 A. R. 48. As to illegal consideration, see 6 Encyc. L. 757; 9 Cyc. 564- 566. As to legality of wagers and betting and right to recover, see 18 L. 859. 884 Tit.I,ch.V.] EXECUTED AND EXECUTORY. §§1609-1611 As to many miscellaneous matters as to contracts, see note § 1549, ante. As to note founded on two distinct considerations, one valid and the other invalid, see 25 A. D. 390. As to rig-ht to recover money paid under an illegal contract, see 12 A. D. 385; 67 A. D. 153. §1609. CONSIDERATION EXECUTED OR EXECUTORY. A consideration may be executed or executory, in whole or in part. In so far as it is executory it is subject to the provis- ions of chapter four of this title. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 90 C. 373, 375. 27 P. 294 (referred to with other sections); 3 C. A. 246, 248, 84 P. 1000 (applied). As to- many miscellaneous matters as to contracts, see note § 1549, ante. As to offer of reward, see Kerr's Cyc. C. C. § 1584, note par. 4. As to option contract, see Kerr's Cyc. C. C. § 1580, note pars. 23 et seq. . c , As to subscription contract, see Kerr's Cyc. C. C. ^ lu84, note pars. 21 et seq. § 1610. EXECUTORY CONSIDERATION. When a consid- eration is executory, it is not indispensable that the contract should specify 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 74 C. 287, 296, 15 P. 839, 843 (construed and applied); 90 C. 373, 375, 27 P. 294 (referred to with other sections). See post §§ 1611. 1613 and notes. As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1611. HOAV ASCERTAINED. When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the considera- 885 §§ 1612-1614 CIVIL CODE. [Div.III,Pt.II. tion must be so much money as the object of the contract is reasonably worth. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 90 C. 373, 375, 27 P. 294 (referred to with other sections). See post §§1612, 1613 and note. As tti' ■ -^-'iv P^i'jcellaneous matters as to contracts, see note § 1549, anlL. § 1612. EFFECT OF IMPOSSIBILITY OF ASCERTAINmG CONSIDERATiOlV. Where a contract provides an exclusive method by which its consideration is to be ascertained, which method is on its face impossible of execution, the entire con- tract is void. History: Enacted March 21, 1872. § 1613. SAME. [POSSIBLE OF EXECUTION ON FACE.] "Where a contract provides an exclusive method by which its consideration is to be ascertained, which method appears pos- sible on its face, but in fact is, or becomes, impossible of execution, such provision only is void. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1614. WRITTEN INSTRUMENT PRESUMPTIVE EVI- DENCE OF CONSIDERATION. A written instrument is pre- sumptive evidence of a consideration. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 70 pars, annotation. 62 C. 623, 638 (construed and applied); 67 C. 536, 539, 8 P. 63, 65 (construed and applied); 68 C. 611, 617, 10 P. 179, 182 (con- sti:ued and applied); 69 C. 611, 614, 11 P. 484 (construed and applied with §1615); 75 C. 513, 518, 17 P. 675, 677 (construed and applied with § 1615); 79 C. 606, 607, 21 P. 965 (construed and applied); 85 C. 322, 327, 24 P. 636, 637 (construed and applied); 86 C. 639, 642, 25 P. 130, 131 (construed and applied); 88 C. 79, 82, 25 P. 962, 963 (construed and applied with §1615); 96 C. 106, 110, 31 A. S. 192, 30 P. 1022, 1023 (referred to); 100 C. 429, 886 Tit.T.ch.V.] BURDEN OF PROOF. § 1615 432, 433, 34 P. 1089 (construed and applied); 103 C. 97, 101, 37 P. 189 (construed and applied with other sections); 106 C. 651, 655, 40 P. 8 (construed and applied with other sections) ; 43 P. 755 (construed and applied); 111 C. 281, 284, 43 P. 899 (construed and applied); 49 P. 719, 721 (construed and applied); 120 C. 680, 682, 53 P. 266 (construed and applied); 124 C. 577, 579, 57 P. 463 (cited with other sections); 129 C. 301, 306, 61 P. 937 (construed and applied); 131 C. 379, 383, 63 P. 692 (construed and applied with other sections); 143 C. 528, 533, 77 P. 471 (construed and applied with other sections); 147 C. 596, 603, 82 P. 257 (applied); 3 C. A. 727, 730, 86 P. 994 (applied); 6 C. A. 163, 166, 91 P. 677 (applied to note). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1615. BURDE> OF PROOF TO INVALIDATE SUFFI- CIEN'T CONSIDERATION. The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it. History: Enacted March 21, 1872. Said to be "not quite clear" whether this section applies to an illegal consideration, 83 C. 173, 177, 23 P. 286. See Kerr's Cyc. C. C. for 10 pars, annotation. 68 C. 611, 617, 10 P. 179. 182 (construed and applied with §1614); 69 C. 611, 614, 11 P. 484; 486 (construed and applied with § 1614); 75 C. 513, 518, 17 P. 675, 677 (construed and applied with §1614); 79 C. 606, 607, 21 P. 965 (construed and applied with §1614); 83 C. 173, 177, 23 P. 286, 288 (referred to); 85 C. 322, 327, 24 P. 636, 637 (referred to in dis. op.); 88 C. 79, 82, 25 P. 962, 963 (construed and applied with §1614); 96 C. 106, 110, 31 A. S. 192, 30 P. 1022, 1023 (referred to with other sections); 103 C. 97, 101, 37 P. 189 (construed and applied with other sec- tions); 111 C. 281, 284, 43 P. 899 (construed and applied); 120 C. 680, 682, 53 P. 266 (construed and applied); 124 C. 577, 579, 57 P. 463 (referred to); 129 C. 301, 306, 61 P. 937 (construed and applied); 131 C. 379, 383, 63 P. 693 (construed and applied with §1614); 143 C. 528, 533, 77 P. 471 (applied); 2 C. A. 703. 708, 84 P. 244 (applied to release); 3 C. A. 561, 567, 86 P. 820 (applied); 6 C. A. 163, 166, 91 P. 677 (applied); 46 F. 564, 567 (construed and applied with other sections to notes given for gambling debts). As to burden of proof, see 6 Encyc. L. 763. As to many miscellaneous matters as to contracts, see note § 1549, ante. 887 SS 1619-1621 CIVIL CODE. [Div.III,PUI. TITLE II. MANNER OF CREATING CONTRACTS. § 1619. Contracts, express or implied. § 1620. Express contract, what. § 1621. 'Ti..'pUf^d rontract, what. § 1622. What contracts may be oral. § 1623. Contract not in writing through fraud, may be enforced against fraudulent party. § 1624. What contracts must be in writing. § 1625. Effect of written contracts. § 1626. Contract in writing, takes effect when. § 1627. Provisions of chapter on transfers of real property. § 1628. Corporate seal, how affixed. § 1629. Provisions abolishing seals' made applicable. § 1619. CONTRACTS, EXPRESS OR IMPLIED. A con- tract is either express or implied. History: Enacted March 21, 1872. 3 C. A. .561, 567, 86 P. 820 (ambiguously cited). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1620. EXPRESS CONTRACT, WHAT. An express con- tract is one, the terms of which are stated in words. History: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 3 pars, annotation. 135 C. 561, 563, 67 P. 1054 (construed). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1621. IMPLIED CONTRACT, WHAT. An implied con- tract is one, the existence and terms of which are manifested by conduct. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 79 C. 323, 326, 12 A. S. 145, 21 P. 852, 5 L. 233 (construed and applied). Tit. II.] ORAL CONTRACTS. §§ 1622-1624 As to many miscellaneous matters as to contracts, see note § 1549, ante. As to obligation imposed by law, see Kerr's Cyc. C. C. §§ 1708 et seq. and notes. §1622. WHAT CONTRACTS MAY BE ORAL. All con- tracts may be oral, except such as are specially required by statute to be in writing. . History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 90 C. 346, 359, 27 P. 289, 292 (applied); 93 C. 493, 495, 27 A. S. 212, 29 P. 119 (applied); 115 C. 512, 515, 47 P. 250 (construed): 137 C. 239, 243, 70 P. 13 (no statute requires the contract known as an account stated to be in writing — it may therefore be oral). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to when contract should be in writing, see Kerr's Cyc. C. C. § 1623 and note: see Kerr's Cyc. C. C. P. §§ 1971-1974 and notes. §1623. CONTRACT NOT IN WRITING THROUGH FRAUD, MAY BE ENFORCED AGAINST FRAUDULENT PARTY. 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 his prejudice, may enforce it against the fraudulent party. History: Enacted March 21, 1872. 88 C. 434, 436 (erroneously cited for § 1624, subd. 5), 26 P. 360, 361 (correct citation). See Kerr's Cyc. C. C. P. §§ 1971-1974 and notes. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1624. WHAT CONTRACTS MUST BE IN WRITING. The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and sub- scribed by the party 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; 889 § 1624 ■ CIVIL CODE. [Div.III,Pt.II. 2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section twenty-seven hundred and ninety-four; 3. An agreement made upon consideration of marriage other than a mutual promise to marry; 4. An agreement for the sale of goods, chattels, or things in actioii, at a price not less than two hundred dollars, unless the buyer accepts or receives part of such goods and chat- tels or the evidences, or some of them, of sucli things in action, or pays at the time some part of the purchase money; but when a sale is made at auction, an entry by the auc- tioneer 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 purchaser and person on whose account the sale is made, is a sufHcient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged; 6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission; 7. An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any provision for any person by will. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 241; March 9, 1878, Code Amdts, 1877-8, p. 86; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 408, held unconstitutional, see history, § 4 ante; am.endment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 611. See Kerr's Cyc. C. C. for 232 pars, annotation.. 62 C. 299, 302 (applied); 67 C. 93, 7 P. 195 (referred to); 67 C. 657, 659, 8 P. 523, 524 (applied): 71 C. 46, 47, 11 P. 813, 814 (cited); 72 C. 133, 144, 13 P. 315, 320 (applied); 75 C. 166, 169, 16 P. 766, 767 (applied); 75 C. 298, 300, 17 P. 213, 214 (referred 890 Tit. II.] MUST BE IN WRITING, WHEN. § 1624 to); 75 C. 509, 511, 17 P. 642, 643 (applied); 75 C. 525, 526, 7 A. S. 189, 17 P. 689, 690 (applied); 77 C. 279, 282, 19 P. 499, 500 (applied); 77 C. 383, 388, 11 A. S. 288, 19 P. 641, 642, 644 (referred to); 80 C. 90, 97 (applied but erroneously cited as §1624 C. C. P.); 13 A. S. 101 (same error), 22 P. 57, 59 (correct citation); 81 C. 205, 207, 22 P. 550, 551 (referred to); 81 C. 280, 288, 22 P. 856, 857, 858 (applied); 82 C. 533, 546, 23 P. 217, 220 (applied); 24 P. 377 (applied); 85 C. 598, 24 P. 784 (applied); 86 C. 639, 641, 25 P. 130, 131 (applied); 87 C. 115, 116, 25 P. 266 (applied); 88 C. 434, 436 (subd. 5 erroneously cited as § 1623), 26 P. 360, 361 (correct citation); 26 P. 831, 832 (referred to — contract not within statute of frauds); 89 C. 564, 569, 570, 26 P. 1093, 1094 (construed); 90 C. 346, 358, 27 P. 289, 292 (construed); 91 C. 669, 671, 27 P. 1080, 1081, 14 L. 230 (referred to); 93 C. 493, 495, 27 A. S. 212, 29 P. 119 (construed); 96 C. 106, 109, 31 A. S. 192, 30 P. 1022, 1023 (referred to); 33 P. 884, 885 (applied); 100 -C. 26, 28 (referred to), 29 (applied), 34 P. 636; 34 P. 700, 701 (applied); 103 C. 157, 160, 37 P. 199 (applied); 106 C. 594, 600, 39 P. 946 (applied); 111 C. 281, 285, 43 P. 899 (referred to); 112 C. 634, 635, 44 P. 1060 (construed); 113 C. 432, 434, 54 A. S. 361, 45 P. 812 (construed); 117 C. 587, 591, 592, 593, 49 P. 710 (con- strued and applied); 119 C. 239, 241 (what memorandum in writ- ing, disclosing terms of ordinary contract for commissions, is sufficient to satisfy statute of frauds — erroneously cited as §1624 C. C. P.), 51 P. 333, 334 (same error); 59 P. 987, 988 (referred to): 128 C. 156, 158, 79 A. S. 36, 60 P. 764 (construed); 61 P. 578, 579 (what promise is within subd. 2); 129 C. 389, 390, 62 P. 58 (applied); 129 C. 488, 489, 62 P. 92 (applied); 130 C. 352, 356, 62 P. 555 (cited); 130 C. 411, 413, 62 P.- 611 (applied); 133 C. 475, 478, 65 P. 976 (applied); 134 C. 227, 229, 66 P. 218 (referred to); 140 C. 687, 689, 74 P. 291 (applied); 141 C. 109, 111, 74 P. 695 (referred to); 142 C. 399, 403, 76 P. 53 (applied); 143 C. 363, 366, 77 P. 71 (applied); 1 C. A. 159, 161, 81 P. 1015 (subd. 6 applied — insufficiency of memorandum as pleading'); 1 C. A. 560, 563, 564, 82 P. 568 (construed with § 2794 — exceptions to general rule); 3 C. A. 414, 416, 86 P. 824 (construed with §2794, subd. 2 — what promise is not void under subd. 2, §1624); 3 C. A. 554, 559, 86 P. 610 (authority to agent to sell real estate must be in writing- — subd. 6 erroneously cited as "subd. 69"); 4 C. A. 109, 112 (erroneously cited as §1624 C. C. P.), 87 P. 255 (correct citation); 4 C. A. 154, 155, 87 P. 285 (referred to); 4 C. A. 358, 359, 360, 88 P. 285 (subd. 6 applied — oral contract invalid); 4 C. A. 403, 405, 88 P. 378 (what contract is not invalid under subd. 4); 6 C. A. 152, 158, 91 P. 667 (referred to in con- struing contract to will property). As to acceptance and delivery of goods to satisfy statute of frauds, see 49 A. D. 325; 37 A. R. 16; 96 A. S. 215. 891 § 1624 CIVIL CODE. [Div.III,Pt.II. As to alteration of contract by subsequent verbal agreement being within statute, see 100 A. D. 169. As to appointment of agent to be in writing, see Kerr's Cyc. C. C. § 1741 and note. As to conflict of laws as to statute of frauds, see 64 L. 119. As to contract for sale of real property, see Kerr's Cyc. C. C. § 1741 and note. As to contract to manufacture, see Kerr's Cyc. C. C. § 1740 and note. As to couicact.v being in several writings, see 2 L. 212. As to contracts for exchange of land, or to transfer interest in realty, as affected by statute, see 5 L. 245. As to contracts for sale of personalty, see Kerr's Cyc. C. C. § 1739 and note. As to contracts for special orders; manufacture of ordinary articles not according to special directions; and finishing articles in existence; as affected by statute, see 14 L. 231, 233. As to contracts not to be performed within one year — Effect of statute, see 3 L. 337, 339; 7 L. 784; 35 L>. 514. As to contracts relating to real estate — Effect of statute, see 17 A. D. 58. As to distinction between sales of personalty and agreements for work and labor, under statute of frauds, see 14 L. 230. As to effect of statute of frauds upon contract between sureties to fix their shares of liability, see 39 L. 378. As to effect of statute on agreement to hold land purchased on execution for defendant, see 40 A. D. 207. As to enforcement of contracts within statute because of part performance, see 32 A. D. 129. As to fraudulent transfers, see Kerr's Cyc. C. C. §§ 3439 et seq. and notes. As to guaranty, see Kerr's Cyc. C. C. §§ 2793 et seq. and notes. As to leases for more than one year, or to commence at a future time, see 7 L. 671; 10 L. 726. As to marriage settlement contracts, see Kerr's Cyc. C. C. § 178 and note. As to memorandum by auctioneer, see Kerr's Cyc. C. C. § 1798 and note. As to meiiTorandum of contract to satisfy statute, see 2 L. 212; 11 L. 97, 143; 22 L. 273. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to part performance taking case out of statute, see Kerr's Cyc. C. C. § 1741 and note. As to promise to answer for debt or default of another, see 5 L. 617. As to promise to pay debt of another, when need and when need not be in writing, see 95 A. D. 251, 46 A. R. 296 892 I Tit. II.] WRITTEN CONTRACT, EFFECT. § 1625 As to promise to pay third person being within statute, see 25 L. 264. As to sufficiency of auctioneer's memorandum to satisfy statute, see 13 A. D. 398. As to statute of frauds, see Kerr's Cyc. C. C. P. §§ 1971-1974 and notes. As to statute of frauds as affecting sale or mortgage or crojis, see 14 L. 233; 23 L. 449. As to what acts may constitute part performance within statute, see 53 A. D. 539. As to wliat constitutes memoranda witliin statute, and l)y whom must be signed, see 47 A. R. 532. As to when consideration of contract is sufficiently expressed, see 60 A. S. 432. As to when contracts are within statute because not to be performed within one year, see 93 A. D. 86; 43 A. R. 42. As to wlien writing constitutes memorandum within statute, see 7 A. D. 288, 42 A. R. 347. As to whether contracts of indemnity are within statute, see 42 A. S. 186. As to whetlier contracts for the purchase of property not then in existence are within statute, see 54 A. R. 164. As to writing of memorandum in any kind of letters and in pencil, see 7 A. D. 288. § 1625. EFFECT OF WRITTEN CONTRACTS. The execu- tion of a contract in wi-iting, whetlier the law requires it to be written or not, supersedes all the negotiations or stipula- tions concerning its matter which preceded or accompanied the execution of the instrument. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 408, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 611. See Kerr's Cyc. C. C. for 19 pars, annotation. 81 C. 1, 7, 22 P. 515, 516, 6 L. 219 (applied) ; -82 C. 474, 478, 23 P. 118, 119 (applied); 82 C. 533. 546, 23 P. 217, 220 (applied); 86 C. 335, 340, 24 P. 993, 994 (applied); 89 C. 617, 621, 26 P. 1101, 1102 (applied); 95 C. 568, 570, 30 P. 773 (cited); 30 P. 841, 842 (applied); 96 C. 106, 109 (referred to), 110 (construed), 31 A. S. 192, 30 P. 1022, 1023; 36 P. 121, 122 (applied); 112 C. 46, 51, 44 P. 354 (referred to); 113 C. 437, 440, 45 P. 702 (applied); 117 C. 204, 211, 48 P. 1083 (cited); 141 C. 221, 228, 74 P. 754 (applied); 141 C. 728, 731, 734, 99 A. S. 98, 75 P. 310 (cited); 146 C. 91, 97, 70 P. 850 (this section has no application until after the con- 893 §§ 1626-1628 CIVIL CODE. [Div.III,Pt.II. tract has been executed); 79 P. 850, 851 (referred to); 150 C. 650, 654, 89 P. 600 (applied to written contract for sale and purchase of real estate); 5 C. A. 525, 532, 90 P. 948 (construed with § 1860 C. C. P.). As to manj^ miscellaneous matters as to contracts, see note § 1549, ante. As to writing- superceding oral stipulations, see Kerr's Cyc. C. C. § 1639 and note. §1626. iO^TRACT IN WRITING, TAKES EFFECT IVHEIV. A contract in writing takes effect upon its deliv- ery to the party in whose favor it is made, or to his agent. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 115 C. 196, 202, 46 P. 926 (applied); 129 C. 251, 253, 61 P. 1112 (applied). As to delivery of written grant, see Kerr's Cyc. C. C. § 1054 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1627. PROVISIONS OF CHAPTER ON TRANSFERS OF REAL PROPERTY. The provisions of the chapter on trans- fers in general, concerning the delivery of grants, absolute and conditional, apply to all written contracts. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 128 C. 531, 546, 51 P. 180, 61 P. 99, 548 (construed). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to oral transfers, see Kerr's Cyc. C. C. §§ 1052 et seq. and notes. § 1628. CORPORATE SEAL, HOW AFFIXED. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 64 C. 9, 11, 27 P. 789, 790 (applied). 894 II Tit 11] SEALS ABOLISHED. §§ 1629 As to many miscellaneous matters as to contracts, see note § 1549, ante. As to seals, see Kerr's Cyc. C. C. P. § 14 and note; see Kerr's Cyc. Pol. C. § 14 and note. §1629. PROVISIOIVS ABOLISHING SEALS MADE AP- PLICABLE. All distinctions between sealed and unsealed instruments are abolished. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 55 C. 564, 566 (meaning of "instrument" — it does not embrace what)- 67 C. 447, 448, 8 P. 49, 50 (referred to); 32 P. 885, 887 (applied but erroneously cited as §1223); 100 C. 617, 622, 35 P. 328 (cited); 101 C. 522, 528 (applied but erroneously cited as §1223) 40 A. S. 73 (same error), 36 P. 18, 20 (correct citation); lis C. '654, 656, 50 P. 757 (construed); 129 C. 384, 389, 62 P. 64 (cited). As to many miscellaneous matters as to contracts, see note § 1549, ante. 895 § 1635 CIVIL CODE. [Div.III,Pt.II. TITLE III. INTERPRETATION OF CONTRACTS. § 1635. Uniformity of interpretation. § 1636. Contracts, how to be interpreted. § 1637. Intention of parties, how ascertained. § 1638. -Ti t-ntion 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. § 1449. Interpretation in sense in which promisor believed promisee to rely. § 1650. Particular clauses subordinate to general intent. § 1651. Contract, partly written and partly printed. § 1652. Repugnancies, how reconciled. § 1653. Inconsistent words rejected. § 1654. Words to be taken most strongly against whom. § 1655. Reasonable stipulations, when implied. § 1656. Necessary incidents implied. § 1657. Time of -performance of contract. S 1658. Time, when of essence [repealed]. § 1659. When joint and several. § 1660. Same. [In singular number.] § 1661. Executed and executory contracts, what. §1635. UMFOEMITY OF INTERPRETATION. All con- tracts, whether public or private, are to be interpreted by the same rules, except as otherwise provided by this code. IILslory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 132 C. 18, 19, 84 A. S. 17, 63 P. 1074 (applied). As to contracts of guaranty and interpretation thereof, see Kerr's Cyc. C. C. §§ 2787 et seq. and notes. As to insurance and insurance contracts and policies, see Kerr's Cyc. C. C. §§ 2527 et seq. and notes. 896 H Tit. III.] INTERPRETATION. § 1636 As to interpretation of contracts generally, see Kerr's Cyc. C. C. § 1636 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1636. CONTRACTS, HOW TO BE INTERPRETED. A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 54 pars, annotation. 57 C. 476, 479 (applied); 81 C. 528, 532, 22 P. 920, 922 (cited); 27 P. 286, 287 (meaning may be proved on trial to enable court to interpret words); 95 C. 134, 138, 29 A. S. 101, 30 P. 202 (applied); 104 C. 298, 300, 37 P. 1049 (cited); 111 C. 503, 508, 44 P. 189, 34 L. 857 (cited); 119 C. 249, 257, 47 P. 124, 51 P. 340 (cited); 126 C. 467, 469, 77 A. S. 192, 58 P. 907 (cited) ; 132 C. 18, 19, 84 A. S. 17, 63 P. 1074 (applied) ; 135 C. 28, 29, 87 A. S. 96, 66 P. 961 (applied) ; 141 C. 101, 102, 99 A. S. 33, 74 P. 699 (applied) ; 141 C. 728, 731, 75 P. 310 (applied); 149 0.178,189,86 P. 603 (primary object of all in- terpretation is to ascertain and carry out intention of parties) ; 150 C. 39, 45, 87 P. 1097 (applied to reservation or exception in grant); 3 C. A. 14, 21, 84 P. 220 (applied to private contract for street grading); 3 C. A. 294, 298, 85 P. 134 (applied to contract involving notes); 3 C. A. 591, 594, 595, 86 P. 810 (applied to contract involving two documents); 3 C. A. 696, 700, 86 P.- 981 (applied to contract of suretyship where "collateral" was given). As to construction of building contracts, see 5 L. 270; 10 L. 826. As to construction of contracts in general, see 1 L. 655; 3 L. 859; 12 L. 375. As to construction of contracts of guaranty, see Kerr's Cyc. C. C. §§ 2787 et seq. and notes. As to construction of life insurance policies, see Kerr's Cyc. C. C. §§ 2527 et seq. and notes. As to construction of mortgages, see Kerr's Cyc. C. C. §§ 2920 et seq. and notes. As to entirety of contracts, see 54 A. R. 624. As to entirety of contracts and when complete performance necessary, see 59 A. S. 277. As to entirety of contracts for services or other work, see 38 A. R. 208. As to forfeitures, see Kerr's Cyc. C. C. § 1643 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. Kerr's C. C— 29 897 §§ 1637-1639 CIVIL CDDE. [Div.III.Pt.II. As to parol evidence to prove intention, see Kerr's Cyc. C. C. P. §§ 1855 et seq. and notes. As to time being of essence of contract, see Kerr's Cyc. C. C. § 1657 and note. § 1637. INTENTION OF PARTIES, HOW ASCERTAINED. For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied. rii.siory: Enacted March 21, 1872. 141 C. 101, 102. 99 A. S. 33, 74 P. 699 (applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to parol evidence vsrith respect to writings, see Kerr's Cyc. C. C. P. §§ 1855, 1856 and notes. §1638. INTENTION TO BE ASCERTAINED FROM LAN- GUAGE. The language of a contract is to govern its inter- pretation, if the language is clear and explicit, and does not involve an absurdity. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 44 P. 662 (applied); 123 C. 97, 100, 55 P. 788 (applied); 141 C. 221; 228, 74 P. 754 (applied); 141 C. 728, 734, 99 A. S. 98, 75 P. 310 (cited, dis. op.); 3 C. A. 14, 21, 84 P. 220 (applied to private contract for grading). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1639. INTERPRETATION OF WRITTEN CONTRACTS. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if pos- sible; subject, however, to the other provisions of this title. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 62 C. 623, 631 (cited); 31 P. 367, 369 (applied); 141 C. 221, 228. 74 P. 754 (applied); 141 C. 728, 734, 99 A. S. 98, 75 P. 310 (cited); 146 C. 690, 694, 81 P. 25 (applied); 3 C. A. 14, 21, 84 P. 220 (applied to private contract for grading); 3 C. A. 115, 120, 84 P. 435 (applied). 898 rpj^. jii -j INTERPRETATION. §§ 1640-1642 As to many miscellaneous matters as to contracts, see note § 1549, ante. , As to parol evidence in construing writings, see Kerr s Cyc. C. C. P. §§ 1855 et seq. and notes appended thereto. As to when parol evidence is admissible to aid in construc- tion of contracts, see 5 A. R. 241. § 1640. WRITING, WHEN DISREGARDED. When through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disre- garded. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 62 C 623, 631 (cited); 107 C. 348, 355, 356, 40 P. 534 (applied); 137 C. 71, 75. 69 P. 844 (applied); 149 C. 122, 126, 127, 84 P. 835 (applied to written contract for exchange of lands). As to disregarding writing, see Kerr's Cyc. C. C. P. § 1856 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1641. EFFECT TO BE GIVEN TO EVERY PART OF CONTRACT. The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 11 pars, annotation. 62 C. 623, 631, 638 (applied); 81 C. 528, 532 (cited). 533 (ap- plied) 22 P. 920, 922; 104 C. 298, 300, 37 P. 1049 (applied); 131 C. 481, 484, 63 P. 724 (applied); 149 C. 178, 189, 86 P. 603 (applied to deed); 150 C. 39, 45, 87 P. 1097 (applied to deed). As to many miscellaneous matters as to contracts, see note § 1549, ante. _ As to repugnancies and inconsistencies, see Kerr's Cyc. C. C. §§ 1652, 1653 and notes. §1642. SEVERAL CONTRACTS, WHEN TAKEN TO- GETHER. Several contracts relating to the same matters, between the same parties, and made as parts of substan- tially one transaction, are to be taken together. History: Enacted March 21, 1872. 899 § 1643 CIVIL CODE. [Div.III.Pt.II. See Kerr's Cyc. C. C. for 23 pars, annotation. 62 C. 623, 633 (applied); 84 C. 185, 189, 23 P. 1114, 1115 (ap- plied); 25 P. 753, 756 (applied — note and mortgage to read together as one contract when); 58 P. 1048 (cited), 126 C. 549, 550 (citation of section omitted); 131 C. 481, 484, 63 P. 724 (applied); 133 C. 681, 683, 65 P. 1110 (applied); 137 C. 95, 100, 69 P. 836, 1013 (applied); 142 C. 142, 144, 75 P. 785 (applied); 147 C. 115, 118, 81 P. 416, 109 A. S. 114 (checks and written agree- ments as one transaction); 149 C. 178, 189, 86 P. 603 (different instrum^rts must be construed together when); 3 C. A. 294, 297, 298, 85 P. 134 (notes and auxiliary agreements to be viewed as one contract); 3 C. A. 591, 594, 86 P. 810 (applied to several writings); 3 C. A. 696, 700, 86 P. 981 (applied to contract of suretyship where "collateral" was given). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to separate instruments construed together, see note 3 L. 579. §1643. IlfTEEPEETATIOJf IN FAVOR OF CONTRACT. A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect. If it can be done without violating the intention of the parties. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 80 C. 611, 618, 22 P. 327, 329 (applied); 83 C. 56, 62, 23 P. 222, 224 (applied); 119 C. 249, 257, 47 P. 124, 51 P. 340 (applied); 123 C. 97, 100, 55 P. 788 (applied); 132 C. 63, 65, 64 P. 131, 469 (cited); 132 C. 523, 566, 84 A. S. 70, 60 P. 442, 64 P. 1000 (applied); 141 C. 101, 102, 99 A. S. 33, 74 P. 699 (applied); 144 C. 19, 37, 77 P. 712 (applied); 149 C. 122, 127, 84 P. 835 (applied to contract for exchange of land); 2 C. A. 220, 224, 83 P. 282 (applied to archi- tect's contract of employment); 3 C. A. 294, 298, 85 P. 134 (applied with other sections to contract respecting notes); 3 C. A. 591, 594, 86 P. 810 (applied to contract involving several writings); 4 C. A. 184, 190, 87 P. 405 (applied to contract to pay one-half of endowment to plaintiff at age of seventy) ; 4 C. A. 361, 367, 88 P. 287 (applied to written contract of service in carrying newspapers). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to provision in building contract construed as penalty; "forfeiture" imports penalty; relief from forfeiture; when for- feiture considered liquidated damages; enforceable if unwise, but not if unconscionable, see 10 L. 826. 900 Tit. III.] ORDINARY WORDS— TECHNICAL. §§ 1644-1646 § 1644. WORDS TO BE UNDERSTOOD IN USUAL SENSE. The words of a contract ai-e to be understood in their ordi- nary and popular sense, rather 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. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 57 C. 476, 479 (applied); 87 C. 49, 59, 25 P. 249, 252 (applied); 27 P. 286, 287 (meaning may be proved on trial to enable court to interpret words); 95 C. 134, 138, 29 A. S. 101, 30 P. 202 (cited); 125 C. 345, 352, 58 P. 7 (applied); 132 C. 63, 65, 64 P. 131, 469 (cited); 144 C. 19, 37, 77 P. 712 (applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1645. TECHNICAL AVORDS. Technical words are to be interpreted as usually understood by persons in the profes- sion or business to which they relate, unless clearly used in a different sense. History: Enacted March 21, 1872. See Kerr's CVc C. C. for 4 pars, annotation. 57 C. 476, 479 (applied); 27 P. 286, 287 (meaning may be proved on trial to enable court to interpret words); 95 C. 134, 138, 29 A. S. 101, 30 P. 202 (cited); 31 P. 367, 369 (applied to terms "quarter scale" and "waste" used in logging contract); 99 C. 363, 372, 33 P. 916, 919 (cited); 123 C. 140, 143, 55 P. 681 (applied); 144 C. 19, 37, 77 P. 712 (applied). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1646. LAW OF PLACE. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of perform- ance, according to the law and usage of the place where it is made. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 57 C. 476, 479 (applied); 27 P. 286, 287 (meaning may be proved on trial to enable court to interpret words); 95 C. 134, 138, 29 901 §§ 1647, 1648 CIVIL CODE. [Div.III.PtJI. A. S. 101, 30 P. 202 (cited); 99 C. 363, 372, 33 P. 916, 919 (cited); 141 C. 728, 735, 99 A. S. 98, 75 P. 310 (applied). As to contract, by what law g-overned, see 20 A. D. 293, 27 A. D. 557; 30 A. S. 828; 46 A. S. 448; 55 A. S. 774. As to law, usage, and custom as part of contracts, see 3 L. 860; 4 L. 392; 10 L. 785. As to lex loci contractus, see 8 A. D. 490. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to usag-e, see Kerr's Cyc. C. C. P. § 1870 subd. 12 and note. § 1647. CONTRACTS EXPLAINED BY CIRCUMSTANCES. A contract may be explained by reference to the circum- stances under which it was made, and the matter to which it relates. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 23 pars, annotation. 77 C. 449, 457, 19 P. 820, 823 (applied); 78 C. 258, 262, 20 P. 559, 561 (applied); 83 C. 56, 63, 23 P. 222, 224 (applied); 99 C. 363, 372, 33 P. 916, 919 (cited); 126 C. 467, 469, 58 P. 907 (referred to); 132 C. 63, 65, 64 P. 131, 469 (cited); 134 C. 324, 328, 66 P. 311 (applied); 137 C. 95, 100, 69 P. 836, 1013 (cited); 141 C. 253, 261, 74 P. 856 (applied); 141 C. 728, 731, 99 A. S. 98, 75 P. 310 (cited); 149 C. 269, 273, 86 P. 509, 691 (parol evidence is admissible when — contract for services); 1 C. A. 752,. 759, 82 P. 1056 (applied to contract respecting shipment of potatoes); 2 C. A. 253, 257, 83 P. 285 (applied to modifying slip of insurance policy) ; 3 C. A. 335, 337, 85 P. 162 (applied to sale of store and its contents); 3 C. A. 591, 594, 86 P. 810 (consideration of circumstances and conditions surrounding and accompanying execution of several writings); 4 C. A. 610, 615, 88 P. 731 (how court may support condition of stay bond). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1648. CONTRACT RESTRICTED TO ITS EVIDENT OBJECT. However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 62 C. 623, 633 (applied); 141 C. 728, 731, 99 A. S. 98, 75 P. 310 (cited); 149 C. 269, 276, 86 P. 509, 691 (receipt will be limited to 902 Tit. III.] PARTICULAR CLAUSES. §§1649-1651 matter particularly expressed); 2 C. A. 253, 257, 83 P. 285 (applied to modifying slip of insurance policy); 3 C. A. 696, 700, 86 P. 981 (applied to contract of suretyship where "collateral" was given). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1649. INTERPRETATION IX SENSE IN WHICH PROM- ISOR BELIEVED PROMISEE TO RELY. If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. 74 C. 532, 534, 16 P. 325 (referred to); 32 P. 245, 246 (con- strued); 107 C. 348, 354, 40 P. 534 (applied); 109 C. 221, 228, 41 P. 876 (applied); 132 C. 63, 65, 64 P. 131, 469 (cited); 133 C. 170, 179, 65 P. 391 (applied); 1 C. A. 752, 759, 760, 82 P. 1056 (applied to contract for shipment of potatoes). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to which construction preferred, see Kerr's Cyc. C. C. P. § 1864 and note. §1650. PARTICULAR CLAUSES SUBORDINATE TO GENERAL INTENT. Particular clauses of a contract are subordinate to its general intent. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 54 C. 353, 370 (applied); 116 C. 62, 67, 47 P. 866 (applied); 54 P. 383, 384 (applied); 123 C. 97, 100, 55 P. 778 (cited); 133 C. 655, 658, 66 P. 15 (cited); 3 C. A. 696, 700, 86 P. 981 (applied to con- tract of suretyship where "collateral" was given). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to repugnancies and inconsistent words, see Kerr's Cvc. C. C. §§ 1652, 1653 and notes. §1651. CONTRACT, PARTLY WRITTEN AND PARTLY PRINTED. Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view 903 §§ 1652, 1653 CIVIL CODE. [Div.III,Pt.II. to their intention, and the remainder is copied from a form originally prepared without special reference to the particu- lar parties and the particular contract in question, the writ- ten parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 87 C. 236,'239, 25 P. 412 (applied); 111 C. 503, 509, 44 P. 189. 34 L. 857 (applied); 2 C. A. 253, 257, 83 P. 285 (applied to modify- ing slip of insurance policy); 7 C. A. 172, 174, 93 P. 1046 (applied to words "without interest" written in promissory note). As to many miscellaneous matters as to contracts, see note § 1549, ante. §1652. REPUGNANCIES, HOW RECONCILED. Repug- nancy in a contract must be reconciled, 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 123 C. 97, 100, 55 P. 788 (cited). As to construction of repugnant clauses in contract, which shall prevail, see 60 A. S. 93. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1653. INCONSISTENT WORDS REJECTED. Words in a contract which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 123 C. 97, 100, 55 P. 788 (cited); 133 C. 655, 658. 66 P. 15 (cited); 141 C. 728, 731. 99 A. S. 98, 75 P. 310 (cited). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to rejection of inconsistent clauses or words, see 77 C. 548, 554, 20 P. 77; 45 Iowa 166; 7 J. J. Marsh. (Ky.) 192- 18 N. Y. 337. 904 Tit. III.] STRONGLY AGAINST WHOM. §§ 1654, 1655 §1654. WORDS TO BE TAKEN MOST STRONGLY AGAINST WHOM. In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most stx'ongly 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 83 C. 56, 62, 23 P. 222, 224 (construed); 107 C. 348, 355, 40 P. 534 (applied); 110 C. 547, 550, 42 P. 1079 (applied); 111 C. 503, 508, 44 P. 189, 34 L. 857 (applied); 56 P. 802, 803 (referred to); 125 C. 472, 482, 73 A. S. 64, 58 P. 164 (applied); 131 C. 481, 484, 63 P. 724 (applied); 133 C. 170, 179, 65 P. 391 (referred to); 136 C. 178, 181, 68 P. 598 (applied); 141 C. 101, 102, 99 A. S. 33, 74 P. 699 (cited); 141 C. 441, 454, 66 P. 858 (applied), 75 P. 48; 148 C. 223, 227, 82 P. 964, 113 A. S. 223, 7 A. C. 396 (rule of strict con- struction against insurer who prepares policy); 3 C. A. 294, 298, 85 P. 134 (applied to contract respecting promissory notes) ; 6 C. A. 581, 585, 92 P. 652 (applied to lease — lessor as promisor); 7 C. A. 55, 69, 93 P. 391 (this section must be read with § 1069 when, in construing a grant in favor of the grantee); 7 C. A. 172, 175, 93 P. 1046, 1047 (construed and applied with § 1651 C. C. to interest clauses in note). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1655. REASONABLE STIPULATIONS, WHEN IMPLIED. Stipulations which are necessary to make a contract reason- able, or conformable to usage, are implied, in respect to mat- ters concerning which the contract manifests no contrary intention. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 4 P. 371 (applied); 99 C. 363, 372, 33 P. 916, 919 (referred to); 2 C. A. 220, 224, 83 P. 282 (applied to architect's contract of employment); 4 C. A. 361, 367, 88 P. 287 (applied to written con- tract of service in carrying newspapers). As to many iniscellaneous matters as to contracts, see note § 1549, ante. 905 §§ 1656-1658 CIVIL CODE. [Div.III.Pt.II. §1656. IVECESSART INCIDENTS IMPLIED. All things that in law or usage ai-e considered as incidental to a con- tract, or as necessarj^ to carry it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded. History: Enacted March 21, 1872. See Keii ^ Cy.- C. C. for 11 pars, annotation. 62 C. 623, 630, 637 (applied to sale under foreclosure of mort- gage); 99 C. 363, 372, 373, 33 P. 916, 919 (cited as recognizing general doctrine of usage); 126 C. 467, 469, 58 P. 907, 77 A. S. 192 (referred to); 2 C. A. 220, 224, 83 P. 282 (applied to archi- tect's contract of employment); 4 C. A. 361, 367, 88 P. 287 (applied to written contract of service in carrying newspapers). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1657. TIME OF PERFOEMANCE OF CONTRACT. If no time is specified for the performance of an act required to be performed, a reasonable 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 per- formed immediately upon the thing to be done being exactly ascertained. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 44 pars, annotation. 97 C. 518, 521, 32 P. 571, 572 (applied); 119 C. 172, 175, 51 P. 35 (referred to); 124 C. 509, 511, 57 P. 387 (applied); 143 C. 363, 366, 77 P. 71 (applied); 147 C. 313, 327, 81 P. 964 (law implies that money is to be paid on demand when) ; 1 C. A. 239, 240, 81 P. 1117 (money is payable immediately when); 3 C. A. 489, 491, 86 P. 726 (applied to contract to sell real estate — no time of payment specified). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to time as essence of contracts, see 12 L. 239. As to time of performance of implied agreement, see 11 L. 526. As to when stipulations show time is made the essence of contracts, see 50 A. D. 597. § 1658. TIME, WHEN OF ESSENCE (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 242. 906 rpj^ jjj -j JOINT AND SEVERAL. §§ 1659-1661 §1659. WHEN JOINT A>D SEVERAL. Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 129 C 239 241 (referred to), 243 (referred to), 61 P. 1088; 133 C 456 458 65 P. 968 (applied); 70 P. 1071, 1072 (applied); 140 C 535' 537' 74 P. 26 (applied); 150 C. 772, 774, 90 P. 118 (illus- tration of 'joint and several contract of service); 2 C. A. 684 687, 84 P. 260 (presumption applied to contract by husband and As to joint and several obligations, see Kerr's Cyc. C. C. §§ 1430 et seq. and notes. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to subscriptions, whether joint or several, see 22 L. 80. §1660. SAME. [IN SINGULAR NUMBER.] A promise, made in the singular number, but executed by several per- sons, is presumed to be joint and several. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 121 C. 604, 606, 53 P. 1117 (applied); 129 C. 263, 269 (applied), 61 P. 1077. ^ . As to many miscellaneous matters as to contracts, see note § 1549, ante. §1661. EXECUTED AND EXECUTORY CONTRACTS, WHAT. An executed contract is one, the object of which is fully performed. All others are executory. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. „ .- ^ a 81 C. 528, 532, 22 P. 920, 922 (cited); 126 C. 591, 598, a A. b. 209, 59 P. 36 (cited). As to many miscellaneous matters as to contracts, see note § 1549, ante. 907 5 j^ggY CIVIL CODE. [Div.III.Pt.II. TITLE IV. UNLAWFUL. CONTRACTS. § 1667. What is unlawful. § 1668. Certain contracts unlawful. § 1669. Penalties void [repealed]. § 1670. ConuacL ^^xing 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. S 1675. Exception in favor of partnership arrangements. § 1676. Contract in restraint of marriage, void. § 1667. WHAT IS UNLAWFUL. That is not lawful whicli is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not ex- pressly prohibited; or, 3. Otherwise contrary to good morals. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 312 pars, annotation. 68 C. 29, 30, 8 P. 614, 615 (construed and applied with other sections); 79 C. 633, 680, 22 P. 26, 40, 131 (construed and applied); 81 C. 370, 373, 22 P. 880, 881 (construed and applied); 81 C. 507, 509 (applied but erroneously cited as § 1167), 515, 521 (cited taut construed in dis. op. of Thornton, J., as inapplicable), 22 P. 883 (correct citation), 885, 887; 83 C. 173, 177, 23 P. 286, 288 (construed and applied with other sections); 84 C. 409, 415, 24 P. 164, 166 (construed and applied); 32 P. 938, 940 (construed and applied); 91 C. 112, 117, 27 P. 735, 736 (construed and applied); 96 C. 106, 109, 31 A. S. 192, 30 P. 1022, 1023 (referred to); 112 C. 197, 204, 44 P. 557 (construed and applied with § 602 of the Pen. C.) ; 117 C. 242, 244, 49 P. 135 (construed and applied with §§424, 426 of the Pen. C); 119 C. 599, 601, 51 P. 962 (con- strued and applied with §43); 123 C. 607, 609, 56 P. 467 (con- strued and applied); 125 C. 119, 122, 123, 73 A. S. 31, 57 P. 777, 45 L. 420 (construed and applied with other sections); 127 C. 33, 35, 59 P. 207 (construed and applied); 131 C. 481, 488, 63 P. 724 (construed and applied); 150 C. 159, 161, 88 P. 708 (subd. 3 applied to notes given as consideration for gambling debt); 46 F. 564, 565, 567 (applied with §§ 1607, 1608, and 1615 — mere want 908 Tit. IV.] UNLAWFUL CONTRACTS. § 1667 of consideration distinguished from illegal consideration — prima facie case of notice). As to actions on illegal contracts, see 8 A. D. 691; 67 A. D. 153, 154; 16 A. S. 699. As to agreement to influence actions of officers, see 66 A. D. 510. As to burden of proof in case of illegality of consideration, see Kerr's Cyc. C. C. § 1615 and note. As to confidential relation, see fiduciary relation; see Kerr's Cyc. C. C. § 1667, note pars. 85-87. As to contract in violation of express law, see 3 L. 631; 6 L. 218. As to contract for services in improperly influencing elections, see 66 A. D. 510. As to contract to indemnify for illegal act, see 4 L. 682. As to contract to secure appointment to office or place of trust, see 66 A. D. 509. As to contracts obtained by duress, see Kerr's Cyc. C. C. § 1569 and note. As to contracts obtained by undue influence, see Kerr's Cyc. C. C. § 1575 and note. As to contracts obtained through menace or threat, see Kerr's Cyc. C. C. § 1570 and note. As to contracts procuring pardons and commutation of sen- tences, see 66 A. D. 511-513. As to contracts for services void as against public policy, see 66 A. D. 506. As to contracts relating to legal services with respect to lobbying, see 66 A. D. 508. As to contracts void as against public policy generally, see 3 L. 631; 6 L. 601-615; 8 L. 497; 12 L. 120. As to defense against recovery of money collected, on ground that it was on an unlawful contract or for illegal purposes, see 99 A. D. 61-68. As to effect of failure to procure license for business on validity of contracts thereon, see 16 L. 423-425. As to elements of illegal contract, see 41 A. S. 900. As to enforceability of contracts rendered void by statute, see 25 A. R. 674-678. As to equitable interference with illegal contract, see 4 N. Y, Ch. L. ed. 300. As to granting of injunction in favor of party in pari delicto against enforcement or otherwise proceeding upon illegal con- tract, see 8 L. 842-850. As to illegal contracts, see 16 A. S. 699. As to injunction against enforcement of contract of wager, see 48 L. 842-850. 909 § 1667 CIVIL CODE. [Div.III.Pt.II. As to invalidity of gambling- and wagering contracts, see 1 L. 141, 655; 3 L. 679; 5 L. 200; 7 L. 705; 12 L. 120. As to legality of wagers and liability of stakeholder, see 18 L. 859-864. As to liability of obligors on original contract as affected by renewal or substituted contract which is void, see 33 L. 628-635. As to lobbying contracts, see 66 A. D. 505-514. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to iuiscf-lla:"^ ous contracts for services, such as marriage brokerage contract, etc., see 66 A. D. 513, 514. As to perpetuities, see Kerr's Cyc. C. C. § 715 and note. As to recover:' of money paid on illegal contract, see 12 A. D. 385-387. As to recovery of price of property sold for unlawful use, see 15 L. 834-837. As to rewards for information, see Kerr's Cyc. C. C. § 184, note pars. 4 et seq. As to right of action to recover profits arising from illegal business, see 30 A. R. 106-112. As to right of expectant heir to transfer his expectancy, see Kerr's Cyc. C. C. §§ 699, 700 and notes. As to right to recovery of goods sold to smuggler, see 15 L. 534. As to sales in aid of rebellion, see 15 L. 834. As to sales in aid of lottery or gambling, see 15 L. 834-836. As to sales of liquor for illegal use, see 15 L. 836. As to services in procuring contracts for heads of depart- ments, see 66 A. D. 507. As to stock gambling contracts, see 59 A. S. 308. As to stock-jobbing acts and other statutes and contracts relating to dealing in futures, see 1 A. S. 752-756. As to validity of contract for sale of office, see 5 L. 217. As to validity of contract for transfer of parental authority or responsibility, see 27 L. 56-61. As to validity of contract to purchase office or official in- fluence, see 4 L. 682. As to validity of contracts to procure testimony, see 19 L. 371-373. As to validity of sale by expectant heir of his expectant estate, see 33 L. 266-287. As to validity of transactions between an heir and his ancestor relating to former's expectant estate, see 32 L. 595-602. As to wagering contract for sale, see 1 A. S. 758-760. As to wagers on elections, see 18 L. 859. As to when party may enforce contract promotive of illegal transactions, see 9 L. 506. 910 Tit. IV.] UNLAWFUL AND VOID. §§1668-1670 §1668. CERTAm CONTRACTS UNLAWFUL. All con- tracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or wilful injury to the person or property of another, or viola- tion of law, whether wilful or negligent, are against the policy of the law. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 93 C. 452, 457, 27 A. S. 207, 28 P. 1068, 1070 (construed and applied). As to contracts by common carrier limiting liability to pas- sengers or servants, see Kerr's Cyc. C. C. §§ 2174, 2175 and notes. As to illegality of contracts obtained under threats of prose- cution, see Kerr's Cyc. C. C. § 1584 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to validity of contracts by which employees waive right to recover from employers for injuries which may be received in the course of employment, see 58 A. R. 836-838; 3 A. S. 255- 257. §1669. PENALTIES VOID (repealed). History: Enacted March 21, 1872, repealed March 30, 1874, Code Amdts. 1873-4, p. 242. §1670. CONTRACT FIXING DAMAGES, VOID. 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, except as expressly provided in the next section. History: Ti;nacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. §1671) ; 77 C. 467, 472, 19 P. 872, 874 (construed and applied together with 1671) ; 78 C. 606, 609, 21 P. 369, 370 (construed and applied with § 1671)- 78 C. 606, 609, 21 P. 369, 370 (construed and applied with § 1671)' 87 C. 443, 450, 22 A. S. 257, 25 P. 749, 751 (construed and applied with other sections); 90 C. 78, 82, 27 P. 24, 25 (not applicable to what contract); 90 C. 110, 119, 120, 25 A. S. 102. 27 P. 36 38 (construed and applied with §1671); 98 C. 1, 4. 8. 9. 32 P. 705 (construed and applied); 100 C. 75. 78, 34 P. 622 (con- strued and applied with §1671); 114 C. 64, 66, 45 P. 1004 911 § 1671 CIVIL CODE. [Div.III,Pt.II. (referred to); 123 C. 1, 5, 21, 69- A. S. 17, 55 P. 713, 43 L. 199 (con- strued and applied with other sections); 125 C. 563, 565, 567, 58 P. 130 (construed and applied with §1671); 135 C. 401, 404, 67 P. 499 (construed and applied with § 1671); 144 C. 494, 499, 77 P. 1040 (construed and applied with §1671); 4 C. A. 288, 290, 87 P. 1101 (applied to contract for sale of personal property). As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1671. EXCEPTIOH. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 81 pars, annotation. 66 C. 536, 538, 6 P. 417 (construed and applied); 75 C. 205, 209, 16 P. 890 (construed and applied with §1670); 77 C. 467, 472, 19 P. 872, 874 (construed and applied with other sections); 78 C. 606, 609, 21 P. 369, 370 (construed and applied with § 1670); 87 C. 443, 450, 22 A. S. 257, 25 P. 749, 751 (construed and applied with other sections); 90 C. 78, 82, 27 P. 24, 25 (construed and applied with §1670); 90 C. 110, 119, 120, 27 P. 36, 38, 5 A. S. 102 (construed and applied with §1670); 98 C. 1, 4, 8, 9, 32 P. 705 (construed and applied); 100 C. 75, 78, 34 P. 622 (construed and applied); 110 C. 674, 680, 43 P. 388 (construed and applied); 123 C. 1, 5, 9, 69 A. S. 17, 55 P. 713, 43 L. 199 (construed and applied with other sections); 125 C. 563, 566, 567, 58 P. 130 (con- strued and applied); 135 C. 401, 405, 67 P. 499 (construed and applied with §1670); 144 C. 494, 499, 500, 77 P. 1040 (construed and applied with § 1670). As to distinction between liquidated damages and penalty, see 13 L. 671; also briefs 53 L. 124; 55 L. 276; 56 L. 170. As to general rules as to measure of damages on breach of contract, see 2 L. 766; 3 L. 587. As to liquidated damages, see 30 A. R. 28-36; 27 A. S. 717. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to measure of damages on breach of contract to convey and purchase, see 4 L. 670; 27 A. S. 129. As to when damages are liquidated, see 6 L. 555; 10 L. 826; 13 L. 671. As to when sum named will be deemed liquidated damages, and when penalty, see 66 A. D. 116. 912 Tit. IV.] RESTRAINT OF TRADE. §§ 1672-1674 §1672. RESTRAINTS UPON LEGAL PROCEEDINGS (repealed). History: Enacted March 21, 1872, repealed March 30, 1874, Code Amdts. 1873-4, p. 242. §1673. CONTRACT IN RESTRAINT OF TRADE, VOID. Every contract by which any one is restrained from exer- cising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent void. History: Enacted March 21, 1872. 31 P. 155 (construed and applied with other sections) ; 96 C. 510, 513, 516, 31 A. S. 242, 31 P. 581 (construed and applied with' other sections); 101 C. 295, 298, 35 P. 995 (construed and applied with §1674); 102 C. 506, 510, 36 P. 841 (construed and applied with §§1674, 1675); 110 C. 150, 153, 52 A. S. 70, 42 P. 576 (con- strued and applied with §1674); 110 C. 674, 679, 43 P. 388 (referred to); 115 C. 584, 604, 56 A. S. 119, 47 P. 482, 35 L. 309 (construed and applied); 118 C. 352, 357, 50 P. 662 (construed and applied with §§ 1674, 1675); 124 C. 429, 431, 433, 434, 71 A. S. 94, 57 P. 468, 46 L. 142 (construed and applied with §§ 1674, 1675); 126 C. 176, 180, 56 P. 249, 58 P. 466 (construed and applied with §1674); 145 C. 380, 387, 78 P. 879 (construed and applied with §1674); 147 C. 115, 118; 81 P. 416, 109 A. S. 114 (applied to contract respecting purchase of salt). See Kerr's Cyc. C. C. § 1674 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1674. EXCEPTION IN FAVOR OF SALE OF GOOD- WILL. One who sells the good-will of a business may agree with the buyer to refrain from carrying on a similar busi- ness 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, carried on a like business therein. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 114 pars, annotation. 31 P. 155, 156; 96 C. 510, 513, 31 A. S. 242, 31 P. 581 (construed and applied with other sections); 101 C. 295, 298, 35 P. 995 (con- strued and applied with §1673); 102 C. 506, 510, 36 P. 841 (con- strued and applied with §§ 1673, 1675); 106 C. 332, 336, 39 P. 628, 913 § 1675 CIVIL CODE. [Div.III,Pt.n. 629 (construed and applied); 110 C. 150, 153, 52 A. S. 70, 42 P. 576 (construed and applied with §1673); 110 C. 674, 679, 43 P. 388 (referred to); 118 C. 352, 357, 50 P. 662 (construed and applied with §§1673, 1675); 124 C. 429, 431, 433, 71 A. S. 94, 57 P. 468, 46 L. 142 (construed and applied with §§1673, 1675); 126 C. 176, 180, 181, 56 P. 249, 58 P. 466 (construed and applied with §1674); 145 C. 380, 387, 78 P. 879 (construed and applied with §1673); 147 C. 115, 118, 81 P. 416, 109 A. S. 114 (referred to in construing- illegal contract respecting purchase of salt) ; 3 C. £.: 33Pi 337 85 P. 162 (construing valid contract omitting words "similar basiness," of code). As to combination in restraint of trade, see 41 A. S. 899. As to contract in partial restraint as to time, see 1 L. 456; 4 L. 154; 8 L. 469; 11 L. 437. As to contract in restraint of trade without limitation as to territory, see 92 A. D. 755; 39 A. S. 465. As to contracts in restraint of trade, see 7 A. D. 743-746; 92 A. D. 751-763; 35 A. R. 269-272; 1 A. S. 822; 41 A. S. 899; 3 L. 632; 11 L. 503. As to contracts restraining use of secrets of trade, see 13 L. 652. As to illegality of contracts creating monopolies, or trusts generally, see 1 L. 456; 2 L. 33; 3 L. 632; 6 L. 457; 8 L. 500; 13 L. 770. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to nature of nonopolies and illegal combinations to fix prices, see 13 L. 770. As to partnerships or corporations entered into in violation of law and creating monopoly, see 48 A. S. 340. As to stipulating liquidated damages, see Kerr's Cyc. C. C. § 1671 and note. As to time, see 92 A. D. 754. As to unlawful combinations between railroads, see 1 L. 849; 9 L. 690. As to validity of contract in partial restraint of trade and restraint as to locality, see 1 L. 456; 4 L. 454; 8 L. 469; 11 L. 437-503. As to validity of contract of sale in restraint of trade without limitation of place, see 22 L. 673. As to what combinations constitute unlawful trusts, see 74 A. S. 235-273. As to when contracts in restraint of trade are reasonable and valid, see 32 A. S. 748. § 1675. EXCEPTION IX FAVOR OF PAKTXERSHIP AR- RAKCrEMENTS. Partners may, upon or in anticipation of a 914 ^j^ jy -J RESTRAINT OF MARRIAGE. § 1676 dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof. History: Enacted March 21, 1872. 10" C 506 510, 36 P. 841 (construed and applied with §§ 1673 1674)- 118 C. 352, 357, 50 P. 662 (construed and applied with 5 1673 1674)- 124 C. 429, 432. 71 A. S. 94, 57 P. 468, 46 L. ed 42 (Construed with other sections as to good will and restraint of trade); 147 C. 115. 118, 81 P. 416, 109 A. S. 114 referred to in construing illegal contract respecting purchase of salt). See Kerr's Cyc. C. C. § 1674 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1676. CONTRACT IN RESTRAINT OF MARRIAGE, VOID. Every contract in restraint of the marriage of any person, other than a minor, is void. History: Enacted March 21, 1872. As to contract in restraint of marriage, see Kerr's Cyc. CCS 710 and note. ^ .^ 'as to many miscellaneous matters as to contracts, see note § 1549, ante. 915 I 1682 CIVIL CODE. [Div.III.Pt.II. TITLE V. EXTINCTION OP CONTRACTS. Chapter I. Contracts, How Extinguished, § 1682. II. Rescission, §§ 1688-1691. III. Alteration and Cancelation, §§ 1697-1701. CHAPTER I. CONTRACTS, HOW EXTINGUISHED. § 1682. Contract, how extinguished. §1682. CONTRACT, HOW EXTINGUISHED. A contract may be extinguished in like manner with any other obliga- tion, and also in the manner prescribed by this title. History: Enacted March 21, 1872. 110 C. 259, 263, 42 P. 820 (construed and applied with other sections). As to conditions in restraint of marriage, see Kerr's Cyc. C. C. § 710 and note. As to many miscellaneous matters as to contracts, see note § 1549, ante. 916 Tit.V.ch.IL] PARTY RESCIND WHEN. §§ 1688, 1689 CHAPTER II. RESCISSION. § 16S8. Rescission extinguishes contract. § 1689. When party may rescind. § 1690. When stipulations against right to rescind do not defeat it. § 1691. Rescission, how effected. §1688. RESCISSION EXTINGUISHES CONTRACT. A contract is extinguished by its rescission. History: Enacted March 21, 1872. 66 C. 636, 639, 6 P. 737, 739 (construed and applied with § 1689)-, 93 C. 588, 595, 29 P. 226 (construed and applied); 1 C. A. 690, 694, 82 P. 1052 (basis of action to rescind contract). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to rescission of contracts, see full annotation Kerr's Cyc. C. C. §§ 3406-3408 and notes. § 1689. WHEN PARTY MAY RESCIND. A party to a con- tract may rescind the same in tlie following cases only: 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or ob- tained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he 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. History: Enacted March 21, 1872. 63 C. 575, 577 (construed and applied); 66 C. 636, 639, 6 P. 737, 739 (construed and applied with §1688); 70 C. 250, 254, 11 P. 643, 645 (construed and applied with §1691); 71 G. 428, 440, 917 § 1690 CIVIL CODE. [Div.III,Pt.II. 12 P. 454, 460 (construed and applied with otlier sections); 78 C. 126, 134, 12 A. S. 29, 20 P. 382, 385 (construed and applied); 82 C. 351, 398, 16 A. S. 137, 23 P. 16, 28 (construed and applied with other sections); 25 P'. 427, 429 (rescission can be had only in cases prescribed by this section and in manner mentioned in §1691); 83 C. 588, 594, 29 P. 226 (construed and applied); 85 C. 11, 31, 20 A. S. 197, 9 L. 376, 24 P. 707 (construed and applied with other sections); 86 C. 248, 251, 21 A. S. 33, 24 P. 1018 (con- strued and applied with other sections); 92 C. 33, 37, 27 P. 1098, JO*}*! (construed and applied with other sections); 93 C. 588, 594, 29 P. 220 (subd. 4 applied); 94 C. 362, 366, 28 A. S. 132, 29 P. 717 (construed and applied); 94 C. 642, 646, 30 P. 4, 5 (construed and applied with other sections); 98 C. 490, 499, 33 P. 550, 553 (construed and applied with §§499, 3406-3408); 114 C. 161, 167, 45 P. 1054, 46 P. 386 (construed and applied); 129 C. 68, 85, 58 P. 92, 61 P. 667 (construed and applied with other sections); 129 C. 367, 372, 62 P. 39 (construed and applied); 62 P. 600, 601, 602 (construed and applied with §1691); 131 C. 530, 546, 63 P. 850, 64 P. 253 (construed and applied); 133 C. 441, 443, 444, 65 P. 894 (construed and applied with other sec- tions); 134 C. 547, 548, 86 A. S. 294, 66 P. 730 (construed and applied); 136 C. 631, 635, 69 P. 428 (construed and applied); 137 C. 286, 290, 70 P. 82, 83 (construed and applied); 138 C. 668, 672, 72 P. 149 (subd. 2 applied— refusal to pay mortgage); 146 C. 379, 390, 80 P. 234 (cited — rescission, how "accomplished," and how enforced); 146 C. 667, 671, 80 P. 1090 (subd. 2 applied — defendant's refusal to go on with contract); 147 C. 739, 743, 82 P. 436 (subd. 1 applied — contract obtained by fraud — what promise is fraudulent); 148 C. 357, 363, 83 P. 151, 113 A. S. 276, 3. L. N. S. 908, 7 A. C. 541 (subd. 2 applied — sale on credit); 149 C. 117, 121, 85 P. 305 (applied to entire contract for partial failure of consideration); 149 C. 667, 676, 87 P. 276 (ground for rescis- sion must be alleged); 151 C. 630, 635, 91 P. 526 (applied with other sections — misrepresentation as basis for rescission must be material); 1 C. A. 690, 694, 82 P. 1052 (basis of action to rescind contract). As to many miscellaneous matters as to contracts, see note § 1549, ante. As to rescission of contracts, see full annotation Kerr's Cyc. C. C. §§ 3406-3408 and notes. §1690. WHEIV STIPULATIOIVS AGAINST RIGHT TO RESCIND DO NOT DEFEAT IT. A stipulation that errors of description shall not avoid a contract, or shall be the sub- ject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake 918 Tit.V.Ch.II.] RESCISSION, HOW MADE. § Iggi is in a matter essential to the inducement of the contract, and is not capable of exact and entire compensation. History: Enacted March 21, 1872. § 1691. RESCISSION, HOW EFFECTED. Rescission, when not effected by consent, 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 disability, and is aware of his right to rescind; and, 2. He must restore to the other party everything 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 likewise, unless the latter is unable or positively refuses to do so. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 408, held unconstitutional, see history, § 4 ante. 54 C. 189, 190 (construed and applied); 70 C. 250, 254, 11 P. 643, 645 (construed and applied with § 1689); 71 C. 226, 229, 16 P. 772, 773 (construed and applied); 78 C. 389, 396, 398, 20 P. 868, 870, 871 (construed and applied); 85 C. 11, 31, 20 A. S. 197, 9 L. 376, 24 P. 707 (construed and applied with §1689); 85 C. 177, 190, 29 A. S. 128, 24 P. 729, 733 (construed and applied); 85 C. 522, 531, 20 A. S. 239, 24 P. 837, 838 (construed and applied); 86 C. 353, 361, 24 P. 1065, 1068 (construed and applied); 87 C. 49, 60, 25 P. 249, 252 (construed and applied); 25 P. 427, 429 (rescis- sion can be had only in manner prescribed by this section); 92 C. 33, 37, 27 P. 1098, 1099 (construed and applied with other sections); 96 C. 275, 282, 31 A. S. 201, 31 P. 290 (construed and applied); 98 C. 490. 499, 33 P. 550, 553 (construed and applied with other sections); 99 C. 223, 227, 33 P. 851 (construed and applied); 99 C. 355, 357, 33 P. 1107 (construed and applied); 103 C. 287, 292, 35 P. 768, 37 P. 392 (construed and applied); 109 C. 417, 426, 42 P. 139 (construed and applied with §3407); 110 C. 374, 379, 42 P. 896 (construed and applied); 119 C. 260, 264, 51 P. 341 (construed and applied); 119 C. 646, 648, 51 P. 1083 (con- strued and applied); 123 C. 1, 16, 69 A. S. 17, 55 P. 713, 43 L. 199 (construed and applied); 123 C. 634, 642, 69 A. S. 90, 56 P. 436 (construed and applied); 124 C. 264, 268, 56 P. 1042 (con- 919 § 1691 CIVIL CODE. [Div.III,Pt.II. strued and applied with §3407); 124 C. 542, 544, 57 P. 476 (con- strued and applied); 129 C. 68, 85, 58 P. 92, 61 P. 667 (construed and applied with other sections); 61 P. 1109, 1111 (subd. 2 applied — no rescission without offer to place defendant in statu quo); 62 P. 600, 601, 602 (construed and applied with §1689); 130 C. 431, 433, 62 P. 749 (construed and applied with other sections); 132 C. 278, 280, 64 P. 292 (construed and applied); 132 C. 516, 521, 64 P. 896 (construed and applied); 133 C. 441, 444, 6fi ,P. 894 (construed and applied with §1689 — executory contract for sale of land); 142 C. 313, 320, 75 P. 899 (subd. 1 applied); 146 C. 379, 389, 390, 80 P. 234 (subd. 2 applied — ability to restore identical property — substantial equity done between parties is enough — rescission, how "accomplished," and how enforced); 146 C. 667, 672, 80 P. 1090 (refusal to return money received relieves party from necessity of offering to return or to cancel contract); 147 C. 739, 743, 82 P. 436 (subd. 1 applied); 148 C. 539, 547, 83 P. 1000 (party must "rescind promptly" though he is not required to restore that which is worthless) ; 151 C. 630, 633, 91 P. 526 (referred to); 151 C. 732, 739, 91 P. 593 (applied — exceptional case — impossibility of restitution — offer to do equity, when sufficient); 152 C. 383, 392, 92 P. 1011 (placing in statu quo, considerations governing) ; 1 C. A. 690, 694, 82 P. 1052 (basis of action to rescind contract); 2 C. A. 737, 744, 84 P. 232 (subd. 1 applied); 7 C. A. 387, 393 (placing in statu quo), 398 (no harm from delay when, in rescinding), 94 P. 393, 398. As to many miscellaneous matters as to contracts, see note § 1549, ante. As to rescission of contracts, see full annotation Kerr's Cyc. C. C. §§ 3406-3408 and notes. 920 Tit.V,Ch.III.] VERBAL AND WRITTEN, HOW. §§1697,1698 CHAPTER III. ALTERATION AND CANCELATION. § 1697. Alteration of verbal contracts. § 1698. Written contracts, how modified. § 1699. Extinction by cancelation, etc. § 1700. Extinction by unautliorized alteration. § 1701. Alteration of duplicate, not to prejudice. § 1697. ALTERATION OF TERBAL CONTRACTS. A con- tract not in writing may be altered in any respect by con- sent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of the new altera- tion. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 342. 110 C 259 263, 42 P. 820 (applied — new contract); 129 C. 301, 305 61 P 937 (erroneously cited as §1697 C. C. P.— has no application to written contracts), 61 P. 937, 939 (correct citation); 134 C. 26, 29, 66 P. 24 (cited); 69 P. 625, 628 (what change made is material alteration). As to alteration and cancelation of contracts, see full annota- tion Kerr's Cyc. C. C. §§ 3412-3414 and notes. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1698. AVRITTEN CONTRACTS, HOW MODIFIED. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 243. 66 C. 114, 115. 4 P. 1091 (construed and applied); 68 C. 27, 28, 8 P. 518, 519 (construed and applied); 77 C. 383, 388, 11 A. S. 288, 19 P 641 644 (construed and applied); 82 C. 533, 546, 23 P. 217 (construed and applied); 95 C. 630, 634, 30 P. 786 (construed and applied); 103 C. 163, 167, 37 P. 147 (construed and apphed ; 104 C 168 170 43 A. S. 81, 37 P. 900 (construed and applied); 40 P. 39, 40 (construed and applied); 112 C. 46, 52, 44 P. 354 (con- strued and applied); 112 C. 634, 635, 636, 44 P. 1060 (construed 921 §§1699,1700 CIVIL CODE. [Div.III,Pt.II. and applied); 117 C. 204, 211, 48 P. 1083 (construed and applied); 120 C. 657, 659, 53 P. 264 (construed and applied); 121 C. 167, 175, 53 P. 565 (construed and applied); 123 C. 681, 686, 56 P. 547, 548 (construed and applied); 126 C. 591, 598, 77 A. S. 209, 59 P. 36 (construed and applied); 127 C. 656, 657, 60 P. 426 (con- strued and applied); 129 C. 301, 305 (construed and applied with § 1697 C. C, erroneously cited as § 1697 C. C. P.), 61 P. 937, 939 (correct citation); 132 C. 133, 136, 64 P. 88 (construed and applied); 140 C. 57, 62, 73 P. 740 (waiver of forfeiture of policy of lifo insurance by extending time for payment of premiums may be shovvn by parol); 146 C. 196, 199, 79 P. 875 (instance of valid executed parol agreement); 146 C. 555, 560, 80 P. 711 (instance of original agreement not altered in accordance with this section); 2 C. A. 15, 17, 82 P. 1127 (executed contract modify- ing written contract in lease concerning pasturage) ; 2 C. A. 306, 309, 310, 311, 83 P. 302 (applied — payment of interest in advance does not extend time for payment of written con- tract); 3 C. A. 115, 120, 84 P. 435 (clear and precise terms of written contract cannot be varied by parol); 4 C. A. 58, 60, 87 P. 210 (oral agreement does not have to be executed at time of inception of written agreement). As to alteration and cancelation of contracts, see full annota- tion Kerr's Cyc. C. C. §§ 3412-3414 and notes. As to many miscellaneous matters as to contracts, see note § 1549, ante. § 1699. EXTINCTION BY CANCELATION, ETC. The de- struction or cancelation of a written contract, or of the sig- nature of the parties liable thereon, with intent to extin- guish the obligation thereof, extinguishes it as to all the parties consenting to the act. History: Enacted March 21, 1872. 87 C. 581, 584, 25 P. 963, 964, 966 (construed and applied). As to alteration and cancelation of contracts, see full annota- tion Kerr's Cyc. C. C. §§ 3412-3414 and notes. As to many miscellaneous matters as to contracts, see note § 1549, ante. §1700. EXTINCTION BY UNAUTHORIZED ALTERA- TION. The intentional destruction, cancelation, or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the 922 Tit.V,ch.TII.] ALTERING DUPLICATE. § 1701 executory obligations of the contract in his favor, against parties who do not consent to the act. History: Enacted March 21, 1872. S1701 ALTERATION OF DUPLICATE, NOT TO PREJU- DICE Where a contract is executed in duplicate, an altera- tion or destruction of one copy, while the other exists, is not within the provisions of the last section. History: Enacted March 21, 1872. 923 §§ 1708, 1709 CIVIL CODE. [Div. III. PART III. OBLIGATIONS IMPOSED BY LAW. § 1708. Abstinence from injury. § 1709. Fraudulent deceit. s'j.710. D'^-cit, what. § 1711. Deceit upon the public, etc. § 1712. Restoration of thing wrongfully acquired. § 1713. When demand necessary. § 1714. Responsibility for wilful acts, negligence, etc. § 1715. Other obligations. § 1708. ABSTINENCE FROM INJURY. Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 26 pars, annotation. 110 C. 374, 385, 42 P. 896 (applied with other sections); 111 C. 39, 45, 52 A. S. 146, 43 P. 398, 31 L. 220 (applied); 118 C. 315, 321, 62 A. S. 238, 50 P. 373 (applied with other sections); 123 C. 42, 44, 55 P. 706 (applied with other sections). As to fraud generally, see Kerr's Cyc. C. C. §§ 1571-1574 and notes. As to liability for bite of dog previously gentle, see 55 L. 671. As to liability of owners for acts of vicious dogs, see 10 A. R. 270; 36 A. R. 752; 27 L. 862; briefs 30 L. 608; 54 L. 420. As to liability where dog wrongfully provoked, see 61 L. 351. Animals, vicious — as to liability for damages by, see Kerr's Cyc. C. C. § 1714 note pars. 13-28, 39-49. Implied warranty in sale for known purpose is fully discussed in Kerr's Cyc. C. C. § 43 note. §1709. FRAUDULENT DECEIT. One who wilfully de- ceives another with intent to induce him to alter his posi- tion to his injury or risk, is liable for any damage which he thereby suffers. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 65 C. 326, 327, 4 P. 33 (fraudulent promise is actionable); 76 C. 192, 193, 18 P. 318, 319 (referred to with other sections); 77 924 pt jjl ] FRAUD AND DECEIT. § 1709 C. 22, 25, 18 P. 791, 793 (applied with other sections): 99 C. 179 185 33 P. 859, 862 (construed and applied); 134 C. 441, 444, 66 'p. 587 (applied with C. C. P.); 136 C. 26, 29, 68 P. 321 (applied). FRAUD AND DECEIT. As to what constitutes, see 1 A. C. 906; 2 A. C. 997; 7 A. C. 505- 8 A. C. 251; 8 A. C. 1051; 12 A. D. 64; 25 A. D. 282; 67 A. D. 775; 74 A. D. 736; 33 A. R. 641; 38 A. R. 736; 56 A. R. 31; 14 A S 7'32- 17 A. S. 482; 32 A. S. 378; 45 A. S. 514; 46 A. S. 753; 51 a'. S. 435; 62 A. S. 544; 69 A. S. 171; 89 A. S. 181; 3 L. 37; 4 L. 158- 5 L 702; 5 L. 841; 6 L. 149; 7 L. 756; 18 L. 188; 21 L. 409; 30 L 465- 33 L. 721; 34 L. 533; 34 L. 642; 43 L. 593; 45 L. 33; 51 L. 262; 52 L. 59; 53 L. 387; 54 L. 445; 57 L. 675; 62 L. 240; 69 L. 686- 69 L. 849; 1 L. N. S. 258; 1 L. N. S. 1075; 6 L. N. S. 556 7 L. N. S. 646; 8 L. N. S. 452; 10 L. N. S. 245; 10 L. N. S. 640 3 W & P. 2943-2954; 21 L. ed. 835; 23 L. ed. 363; 24 L. ed. 586 25 L. ed. 309; 28 L. ed. 76; 28 L. ed. 565; 29 L. ed. 248; 32 L. ed. 625; 32 L. ed. 878; 34 L. ed. 931; 34 L. ed. 851; 44 L. ed. 723.^ Same — As to sales of personal property. — See 1 L. 618; 2 L. 154; 4 L. 369; 14 L. 264; 17 L. 795; 21 L. 206; 64 L. 827. Same— Act involving breach of duty, trust, or confidence.— See 62 A. S. 544; 32 L. ed. 878; 3 W. «& P. 2944. Same— Actual fraud or fraud in fact. — See 14 A. R. 186; 24 L. ed. 586; 25 L. ed. 309; 28 L. ed. 565; 29 L. ed. 248; 32 L. ed. 621; 34 L. ed. 951; 44 L. ed. 723; 3 W. & P. 2944. Same — All modes of deceit comprehended. — See 59 A. D. 451; 74 A. D. 736; 44 L. ed 723; 3 W. & P. 2951. Same — As a personal thing. — See 3 W. & P. 2953. Same— As affecting judgment.— See 11 L. 160; 20 L. 679; 30 K 238; 30 L. 562; 30 L. 787; 31 L. 753. Same — As conclusion of law. — See 56 A. R. 31; 45 A. S. 514; 3 W. & P. 2945. Same — As criminal offense. — See 3 W. & P. 2946. Same— As fact to be proved.— See 32 A. S. 378; 3 W. & P. 2946. Same— As relating to signature of instruments. — See 3 W. & P. 2953. Same — As rendering conveyance void. — See 46 A. S. 753; 7 W. & P. 2953. Same — As rendering debtor liable to arrest. — See 45 A. D. 394; 3 W. & P. 2953. Same — As rendering instrument void. — See 3 W. & P. 2953. Same — As rendering judgment void. — See 3 W. & P. 2954. Same — As rendering marriage void. — See 38 A. R. 726; 3 W. & P. 2954. Same — Bad faith — Official, or official misconduct.— See 3 W, & P. 2952. Same — Same — Synonymous with. — See 3 W. & P. 2945. Same — Concealment or suppression of facts. — See 3 W. & P 2945. 925 § 1709 CIVIL CODE. [Div.III. Same— Constructive.— See 91 C. 15; 27 P. 599, 600; 31 A. R. 428; 58 A. S. 102; 35 L. 776; 2 W. & P. 1470. Same — Same — Breach of duty as a. — See 2 W. & P. 1471. Same — Same — Distinguished from actual fraud. — See 2 W. & P. 1471. Same — Damage must result from to give redress. — See 3 W. & P. 2946. Same — Effect of to entitle or to deprive one of equitable relief, as to, generally, see 1 L. 45: 2 L. 662; 3 L. 806; 5 L. 45; 5 L. 163, 6 L. 158; 6 L. 836; 8 L. 14; 11 L. 66; 17 L. 130; 19 L. 53; 19 L. 767; 22 L. 707. Same — Error or mistake as. — See 17 A. S. 482; 51 A. S. 435; 28 L. ed. 76; S W. & P. 2946. Same — Expression of opinion as fraud. — See 35 L. 417-441. Same — False swearing synonymous with. — See 51 A. S. 435; 3 W. & P. 2947. Same — Fraudulent concealment, constructive fraud, and deceit synonymous. — See 3 W. & P. 2947. Same — Gain to wrong-doer. — See 3 W. & P. 2947. Same — In fact.— See 3 A. R. 588; 3 W. & P. 2954. Same — In law. — See 3 W. & P. 2955. Same — Inequitable or unconscientious advantage. — See 3 W. 6 P. 2947. Same — Injustice distinguished. — See 3 W. & P. 2947. Same — Infecting negotiable paper. — See 36 L. 434; 46 L. 768. Same — Intention and act. — See 19 Eng. C. L. 183; 21 L. ed. 835; 3 W. & P. 2947. Same — Knowledge of falsity of representation. — See 3 W. & P. 2950. Same — Misrepresentations are when. — See 69 A. S. 171; 5 L. 841; 28 L. ed. 76; 3 W. & P. 2951. Same — Misrepresentations by vendor of price paid for prop- erty. — See 8 A. C. 1062. Same — Moral turpitude. — See 3 W. & P. 2950. Same — Official misconduct or bad faith. — See 3 W. & P. 2952. Same — Responsibility for fraud of another. — See 19 L. 331; 21 L. 741; 28 L. 104; 28 L. 421; 51 L. 479. Same — Right to rely upon representations made. — See 37 L. 593-615. Same — Set-off as defense based on fraud. — See 21 L. 324; 23 L. 338; 32 L. 491; 50 L. 508. Same — Silence and concealment where duty to speak and dis- close. — See 1 L. 742; 4 L. 159; 5 L. 428; 6 L. 799; 7 L. 826; 26 L. 430. Same — Suppression of facts. — See 3 W & P. 2945. Same — Unconscientious advantage. — See 3 W. & P. 2947. Same — Undue influence distinguished. — See 25 A. D. 282; 89 A. S. 181; 53 L. 387; 3 W. & P. 2954. 926 pt. III.] FRAUD AND DECEIT. § 1709 Same — Warranty distinguished. — See 3 W. & P. 2954. Acting upon representations, as to, generally, see 14 Encyc. L. 106-115. Action for — As to, generally, see 23 Cent. Dig. col. 1724, §§ 27- 34; 9 Decen. Dig. p. 1281, §§ 31-58. Action for price as bar to action for damages for. — See 8 L. N. S. 582. As affecting judgment. — See 11 L. 160; 20 L. 679; 30 L. 238: 30 L. 562; 30 L. 782; 31 L. 753. Burden of proof — As a bona fides of transferee of warehouse receipts for property secured by fraud. — See 10 L. N. S. 801. Same — As to payment of value by, or notice of fraud to, sub- vendee of chattels, when original seller seeks to rescind for fraud of first purchaser. — See 8 L. N. S. 448. Carelessness as a bar to relief from. — See 32 A. S. 384. Character of representation as one of fact. — See 14 Encyc. L. 33-59. Constructive fraud — Nature and elements of. — See 23 Cent. Dig. col. 1655, § 7; 9 Decen. Dig. p. 1244, §§ 5-7. Damage or prejudice necessary to recovery. — See 23 Cent. Dig. col. 1715, §24; 9 Decen. Dig. p. 1271, §25; 14 Encyc. L. 137-147. Damages for — As to, generally, see 9 Decen. Dig. p. 1312. §§ 59- 62; 14 Encyc. L. 177-189. Same — Measure of. — See "Measure of damages" this note. Deceit, in business transaction — At to what constitutes, see 74 A. D. 736; 3 A. R. 440; 49 A. S. 651; 61 A. S. 791; 23 Cent. Dig. col. 1642, §§1-26; 9 Decen. Dig. p. 1241, §§1-30; 29 L. 360; 33 L. 561; 2 W. & P. 1894, 1896. Same — Alteration of court order.^ — See 2 W. & P. 1895. Same — Cheating by false tokens. — See 2 W. & P. 1895. Same — Silence, where in dutj^ bound to speak. — See 74 A. D. 736; 3 A. R. 440; 2 W. & P. 1895. Deed, when void for at law. — See 93 A. D. 596. Effect of — And remedies for. — See 14 Encyc. L. 156-176. Same — By agent ex necessitate in making proofs of loss under fire insurance policy. — See 9 L. N. S. 480. Same — Extrinsic to trade — name or trade-mark on the right to protection against infringement. — See 12 L. N. S. 1201. Same — In proceedings for opening or extending highway, as defense to proceedings to acquiring property for that purpose. — See 7 L. N. S. 639. Same — In securing release from servant accepting benefits of relief fund. — See 11 L. N. S. 200. Same- — On decision of architect, engineer or umpire. — See 1 L. N. S. 150. Same — On right to assessment debts on dissolution of partner- ship. — See 9 L. N. S. 56. 927 § 1709 CIVIL CODE. [Div.III. Same — On right to injunction against collection of purchase money where title to land is defective. — See 7 L. N. S. 448. Same — To entitle or deprive one of equitable relief. — See 1 L. 45; 2 L. 662; 3 L. 806; 5 L. 45; 5 L. 163; 6 L. 458; 6 L. 836; 8 L. 14; 11 L. 66; 17 L. 130; 19 L. 53; 19 L. 767; 22 L. 707. Same — To estop infant misrepresenting as to age. — See 9 L. N. S. 1117. Same — To right of person on train procuring ticket by. — See 6 L. N. S. 1146. Evi(i-c;iice in action for — As to, generally, see 1 A. C. 816; 7 A. C. 276; 7 A. C. 505: 14 Encyc. L. 190-201. Same — Burden of proof as to fraud. — See 45 L. 53. Same — Same — Respecting will. — See 36 L. 737. Same — Degree of proof required to establish. — See 10 L. 606. Same — Establishment of by facts and circumstances. — See 4 L. 158. Same — Fraudulent intent as question of fact. — See 9 L. 417. Same — Inadequacy of consideration as evidence of. — See 4 L. 638. Same — Parol evidence to prove fraudulent intent as to deed. —See 4 L. 427. Same — Presumptions and burden of proof as to fraud. — See 1 A. C. 809; 1 L. 520; 4 L. 832; 36 L. 737. Same — Question of law and fact. — See "Question of law and fact," this note. Expression of opinion as fraud — As to generally, see 35 L. 417- 441. Failure to read contract as affecting right to relief on ground of.— See 6 L. N. S. 463. False representation — As to, generally, see 23 Cent. Dig. col. 1648, § 3; 14 Encyc. L. 23-32; 14 Encyc. L. 63-66. Same — Action to recover for. — See 20 A. D. 626; 18 A. S. 555. Same — Recovery for injuries suffered from acting upon. — See 88 A. D. 442. False statements in reports required by statute to be made to public officers as basis of action by individual at common law for deceit against officers and directors of corporation person- ally.— See 6 L. N. S. 872. Fraud — As a question of law or fact. — See 1 A. C. 446. Same — Definition of. — See 14 Encyc. L. 19; 3 W. & P. 2943. Same — Nature of. — See 14 Encyc. L. 19. Fraudulent concealment, effect of to void promise of marriage. —See 26 L. 430. Fraudulent intent necessary to justify injunction against unfair competition. — See 4 L. N. S. 960. Fraudulent representations — As to, generally, see 23 Cent. Dig. col. 1656, §§8-14; 9 Decen. Dig. p. 1245, §§8-13. Ignorance or carelessness as affecting right to equitable relief 928 pt. III.] FRAUD AND DECEIT. § 1709 from contract bj^ which one has been overreached. — See 5 L. N. S. 799. In sale of personal property. — See "Fraud in, as to sale of personal property," this note. In sale of real estate. — See 2 A. D. 77. Injunction against proceedings in court of law in case of fraud, accident or mistake. — See 5 A. C. 727. Infecting negotiable paper. — See 36 L. 434; 46 L. 768. Jurisdiction of equity — In case of fraud where adequate remedy exists at law. — See 3 A. C. 611. Same — To cancel instrument — Notwithstanding remedy at law.— See 5 L. N. S. 1048. Same — Same — On ground of. — See 5 L>. N. S. 1036. Same — To cancel insurance policy for fraud and enjoining action at law thereon. — See 12 L. N. S. 881. Knowledge and intent — As to generally, see 14 Encyc. L. 85- 106. ■Knowledge of defendant. — See 23 Cent. Dig. col. 1650, § 4. Life insurance, when amounts to against creditors. — See 29 A. S. 360. Limitations— ^On right to rescind fraudulent contract. — See 1 A. C. 910. Same — Statute of, when prevented from operating by. — See 60 A. D. 511. Materiality of facts represented or concealed. — See 23 Cent. Dig. col. 1687, § 16; 9 Decen. Dig. p. 1261, § 18; 14 Encyc. L. 59-62. Measure of damages for — As to, generally, see 7 A. C. 276; S A. C. 1057. Misrepresentation by vendor as to price paid for property, as actionable deceit. — See 8 A. C. 1062. Part performance, payment is not. — See 27 A. D. 745. Parties to actions for. — See 8 Encyc. P. 896. Performance of executory contract for sale of personal prop- erty after discovery of fraud, as affecting right of action for damages. — See 7 A. C. 280. Persons entitled to relief or redress for. — See 14 Encyc. L. 148-152. Persons entitled to sue. — See 23 Cent. Dig. col. 1720, §25; 9 Decen. Dig. p. 1279, § 29. Persons responsible for. — See 14 Encyc. L. 152-155. Pleadings and proof in actions for. — See 8 Encyc. P. 897-913. Power of equity to take jurisdiction of suit to cancel insur- ance policy for fraud. — See 12 L. N. S. 881. Presumptions and burden of proof as to fraud in action for. —See 1 A. C. 809. Proof of— And presumption as to. — See "Evidence in action for," this note. Same — What sufficient. — See 65 A. D. 157. Kerr's C. C. — 30 929 §1709 CIVIL. CODE. [Div.ITI Question of law and fact— As to, generally, see 1 A. C. 443; 7 A. C. 276; 14 Encyc. L. 205. Same — Fraud as a. — See 1 A. C. 446. Recriminatory, as a defense. — See 3 A. S. 727. Reliance on representations — As to, generally, see 23 Cent. Dig. col. 1690, §§17-23; 9 Decen. Dig. p. 1262, §§19-23. Relief to party defrauded by fradulent scheme, although he went into it with the intention of defrauding others. — See 5 L. N. S. 906. Remfc.3-''-« for — As to, generally, see 1 A. C. 906; 3 A. C. 608; 5 A. C. 363; 7 A. C. 276; 8 Encyc. P. 884-893. Same — Election of, necessity and effect. — See 8 Encyc. P. 894. Same — Injunction against proceedings in court of law in case of fraud, accident or mistake. — See 5 A. C. 727. Same — Jurisdiction of equity, where adequate remedy at law exists. — See 3 A. C. 611. Same — Limitations on right to rescind fraudulent contract. — See 1 A. C. 910. Same — Necessity of returning or tendering contracts vipon repudiation or release of damages for personal injuries, pro- cured by fraud. — See 10 A. C. 739. Same — Performance of executory contract for sale of property after discovery of fraud as affecting right of action for damages. —See 7 A. C. 280. Replevin by seller of property from fraudulent purchaser. — See 1 L. N. S. 474. Responsibility for another's fraud — As to, generally, see 19 L. 331; 21 L. 471; 28 L. 104; 28 L. 421; 51 L. 479. Return or tendering contracts, necessary upon repudiation of release of damages for personal injuries procured by fraud. — See 10 A. C. 739. Right — Of one partner of dissolved firm to maintain an action at law against another for fraud practiced on dissolution with respect to assets. — See 6 L. N. S. 263. Same — Of party to a fraudulent or illegal transaction. — See 34 A. D. 735. Same — Resulting from sale of trade-mark as affected by fraud. —See 1 L. N. S. 723. Same — To question judgment of court of sister state upon ground that defendant was induced by fraud to go within its jurisdiction. — See 12 L. N. S. 941. Same — ^To rely upon representations made — As to, generally, see 37 L. 593-615; 14 Encyc. L. 115-134. Set-off or defense based on. — See 21 L. 324; 23 L. 338; 23 L. 491; 50 L. 508. Silence and concealment when duty to speak and disclose. — See 23 Cent. Dig. coL 1580, §15; 9 Decen. Dig. p. 1259, §§15-17; 930 pt. III.] WHAT IS DECEIT. § 1710 14 Encye. L. 66-84; 1 L. 742; 2 L. 799; 4 L. 159; 5 L. 428; 7 L. 826; 26 L. 430. Statements recklessly made. — See 23 Cent. Dig. col. 1653, § 5. Statute of frauds — As affecting right to equitable relief against one who has purchased land in his own name, in viola- tion of his agreement to purchase for and in the name of another. — See 5 L. N. S. 112. Stockholder's subscriptions as affected by. — See 3 A. S. 824. Unfair competition — Necessity of fraudulent intent to justify injunction against. — See 4 L. N. S. 960. Waiver of fraud — As to, generally, see 4 L. 158; 67 L. 705. Same — Right of action for. — See 4 L. 158; 67 L. 705. § 1710. DECEIT, WHAT. 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 dis- close it, or who gives information of 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 65 C. 326, 327, 4 p! 33 (fraudulent promise is actionable); 76 C. 192, 193, 18 P. 318, 319 (referred to with other sections); 77 C. 22, 26, 18 P. 791, 793 (applied with other sections); 79 C. 234, 236, 238, 21 P. 736, 737 (applied); 81 C. 1, 6, 22 P. 515, 516, 6 L. 219 (applied); 82 C. 77, 82, 22 P. 979, 980 (applied); 96 C. 433, 439, 440, 31 P. 358, 360 (applied with other sections); 99 C. 179, 186, 33 P. 859, 862 (applied); 136 C. 26, 27, 28, 68 P. 321 (applied with other sections). As to admissibility of parol proof of belief, intent, and reli- ance of parties, see 53 L. 769. As to representations which are deceitful and fraudulent, see Kerr's Cyc. C. C. §§ 172, 173, 174 and notes thereto. Actionable deceit — Mere silence, — as to, see discussion and collection of authorities in note 1 L. 742, and brief 61 L. 305. But mere expression of opinion and promise for future per- formance, and statement of facts relating to future, as to, see brief 56 L. 940. 931 §§ 1711-1714 CIVIL CODE. [Div.TII. § 1711. DECEIT UPON THE PUBLIC, ETC. One who prac- tises a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit. History: Enacted March 21, 1872. §1712. KESK.'RATION OF THING WRONGFULLY AC- QUIRED. One who obtains a thing without the consent of its owner, or by a consent afterwards 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 transac- tion was corrupt and unlawful on both sides. History: Enacted March 21, 1872. § 1713. WHEN DEMAJfD NECESSARY. 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 mistake. History: Enacted March 21, 1872. §1714. RESPONSIBILITY FOR WILFUL ACTS, NEGLI- GENCE, ETC. Every one is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the man- agement of his property or person, except so far as the latter has, wilfully 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 246 pars, annotation. 66 C. 579, 586, 56 A. R. 119, 6 P. 637 (applied); 68 C. 455, 459, 9 P. 843, 845 (applied); 95 C. 279, 291, 30 P. 529, 531 (construed and applied); 118 C. 315, 321, 324, 62 A. S. 238, 50 P. 373 (applied with other sections); 123 C. 42, 44, 55 P. 706 (cited with other sections); 123 C. 643, 649, 56 P. 468 (applied); 150 C. 689, 693, 89 P. 976 (applied to operation of street railways). 932 Pt. III.] LIABILITY FOR NEGLIGENCE. § 1714 NEGLIGENCE — LIABILITY FOR A relative term. — See 49 A. D. 239; 97 A. D. 722; 20 A. R. .3.56; 46 A. R. 667; 8 A. S. 876; 29 A. S. 48; 34 A. S. 653; 91 A. S. 629; 91 A. S. 681; 15 L. 434; 17 L. 699; 18 L. 759; 39 L. 161; 55 L. 118; 5 W. & P. 4755. Accident as evidence of. — See 6 A. S. 792; 30 A. S. 736; 20 A. S. 490. Accident policy, contributory negligence as defense to suit on. —See 13 L. 266. Act of God does not excuse when. — See 95 A. D. 125; brief 52 L. 15. Actionable negligence — As to generally, see 9 A. C. 425. Same — Essential elements of. — :See 1 A. C. 206. Agent or servant of third person, liability of for his own negligence or nonfeasance. — See 28 L. 433. Agreements waiving the right to recover for future. — See 58 A. R. 836. Appeal, loss of by negligence as ground for injunction against judgment. — See 30 L. 562. As a fact. — See 26 A. R. 272; 5 W. & P. 4748. As a question of law or fact. — See 3 A. R. 515; 52 A. R. 468; 66 A. S. 39; 42 L. ed. 491; 5 W. & P. 4753. As act of commission or omission. — See 90 A. S. 564; 61 L. 277; 5 W. & P. 4743. Same — Cautious and prudent man. — See 22 L. 635; 5 W. & P. 4744. Same — Ordinarily prudent person. — See 5 W. & P. 4744. Same — Ordinary careful person. — See 5 W. & P. 4744. Same — Reasonable and prudent man. — See 91 A. D. 681; 58 A. S. 709; 26 L. 229^; 21 L. ed. 206; 5 W. & P. 4744. Same — Reasonable person.- — See 5 W. & P. 4745. Same — Reasonably prudent person. — See 5 W. & P. 4746. As affecting liability other than person or property. — See 1 L. 319; 1 L. 500; 2 L. 700; 7 L. 31; 13 L. 266; 30 L. 562; 31 L. 33; 43 L. 593; 45 L. 39; 55 L. 755. As an inference of fact. — See 5 W. & P. 4748. As an unintentional wrongful act. — See 5 W. & P. 4762. As failure of duty. — See 49 A. D. 239; 45 A. R. 628; 2 A. S. 542; 49 A. S. 516; 19 L. 563; 5 W. & P. 4748. Same— Legal duty.— See 20 A. R. 356; 5 W. & P. 4750. Same — Noncontractual duty. — See 5 W. & P. 4750. As failure to exercise care justly demanded by circumstances. —See 25 A. S. 186; 82 A. S. 425; 5 W. & P. 4750. As failure to provide against ordinary occurrences. — See 8 L. 134; 5 W. & P. 4751. As failure to use greatest care. — See 5 W. & P. 4751. As ignorance. — See 5 W. & P. 4752. 933 § 1714 CIVIL CODE. [Div.III. As the breach or omission of a legal duty. — See 54 A. R. 718; 5 W. & P. 4746. As to failure of judge to distinguish between. — See 11 L. 615. As to what a prudent man would not do. — See 5 W. & P. 4748. As to what constitutes.— See 7 A. C. 1126; 1 A. S. 526; 39 A. S. 261; 2 L. 587; 2 L. 695; 5 W. & P. 4743. As to what constitutes act of God. — See 57 L. 707. As to what is inevitable accident. — See 11 L. 616. As to who are liable for.— See 15 L. 818; 26 L. 154; 26 L. 504; 28 L. 427T^;'^ I'. 433; 37 L. 301; 39 L. 33; 51 L. 477; 63 L. 227. As want of care.— See 52 A. S. 293; 32 L. 535; 5 W. & P. 4756. Same — ^Man of ordinary and reasonable prudence. — See 5 W. & P. 4758. Same — Man of ordinary care and prudence. — See 5 W. & P. 4757. Same — Man of ordinary prudence. — See 48 A. R. 96; 66 A. S. 39; 5 W. & P. 4757. Same — Ordinarily careful and prudent person. — See 5 W. «& P. 4758. Same — Ordinarily prudent man in his own affairs. — See 5 W. & P. 4758. Same — Ordinarily prudent person. — See 5 W. & P. 4758. Same — Ordinary man. — See 5 W. & P. 4758. Same — Person of common sense and prudence. — See 37 A. S. 374; 5 W. & P. 4757. Same — Person of great care and prudence. — See 5 W. & P. 4757. Same — Prudent and just man. — See 17 A. S. 791; 5 W. & P. 4759. Same — Prudent, careful, diligent, or skillful man. — See 54 L. 402; 5 W. & P. 4759. Same — Reasonable and provident person. — See 5 W. & P. 4759. Same — Reasonable and prudent person.- — See 58 A. S. 709; 33 L. 598; 5 W. & P. 4759. Same — Reasonably prudent and cautious man. — See 5 W. & P. 4759. Same — Required by circumstances. — See 35 A. R. 748; 48 A. R. 213; 60 A. R. 346; 4 A. S. 608; 11 A. S. 541; 38 A. S. 830; 22 L. 606;. 42 L. ed. 491; 5 W. & P. 4759. Same — Required by duty. — ^See 49 A. D. 239; 58 A. S. 709; 33 L. 598; 5 W. & P. 4760. As want of care and caution. — See 7 A. S. 751; 5 W. & P. 4762. As want of care and diligence. — See 5 W. & P. 4762. As want of care and prudence. — See 5 W. & P. 4762. Same — Man of ordinary intelligence. — See 5 W. & P. 4762. As want of diligence. — See 5 W. & P. 4748. As want of ordinary and reasonable care. — See 5 W. & P. 4761. 934 \-^ Pt III.] LIABILITY FOR NEGLIGENCE. § 1714 AS want of ordinary care.-See 28 A. R. 29; 52 A. R. 468; 90 A. S. 564; 34 L. 812; 61 L. 277; 5 W. & P. 4761 As want of ordinary care and caution.— See 5 W & P. 476- As want of ordinary care and diligence.-See 5 W. & P. 4*6.. As want of ordinary care and prudence.— See 5 W. & P. 4/b-. As want of prudence.— See 5 W. & P. 4762. . ^ „ ^ 4761 As want of reasonable care.-See 59 A. D 72 5 W. & P. 4761. As wrongful conduct spring from inadvertence.— See 8 A. S. 911; 5 W. & P. 4763. Assumption of risk incident to employment-As to, see Kerr s Cvc C C. ? 1970 and note. same-Minor child's assumption of risk incident to employ- ment, whetlier questions of fact— As to.— See Kerr s Cyc. C. C. ^ 'Tttractivrnegligence." doctrine of as applied to injury from hot water or ashes. — See 3 L. N. S. 149. Bank, liability of for negligence in making collections.— See 52 L. 700. , , ^,1 a ^ a 7 Bathhouse— Liability of for loss of guests' valuables.-See 6 L. N S 828 ■game— Care required from proprietor of.— See 3 L. N. S. 982 Bills of particulars in actions for negligence.-See 3 A C^,^- Breach of warranty, personal injuries as element of damages for.— See 3 L. N. S. 1047. i a n 770 Burden of proof— As to generally, see 1 A. C. 613_; 1 A. C. 7^9. Same— Sufficiency of proof of when passenger is injured.- bee 62 A. D. 679. o a /-■ -7 Care and prudence required in general.- See 3 A. C. ot. Care due to sick or otherwise helpless person, to whom no contract relation is sustained.— See 69 L. 513-554. Care to be exercised by person injured ^^y-— See 23 A. R. -5. Carelessness synonymous with.— See 1 W. & P. 973; 5 W. & P. 4746 o 1 T Carrier, right to exempt itself from liability for.— See 1 L. ^ Causing death or injury— As to generally, see 3 L. N. S. 53; 6 L N S. 283; 6 L. N. S. 800. •same-Applicability of doctrine of J-e^/f^,,,^^^^"^'"'' ^" absence of contractual relations.— See 6 L- N. S. 800. Same— Dangerous agencies.— See 3 L. N. S. 330, 3 L. N. S. 1038; 4 L. N. S. 119. „ . tvt a aac, C. C. § 1731 and note. a q t 17" Same— Or lease as a condition sale.— See 9 L. rf.u. Copyrighted articles, restriction on sale or use of.-See 5d ^ cllporate stock, implied warranty on sale of.-See 10 AC. 168 counterclaim for- defects, effect of setting up in an action on one of a series of notes given for, or to recover an installment o^ the purchase price, upon the ri^ht to set up like counter- claim in subsequent actions.— See 10 L. N. S. <3 4. Countermanding or terminating executory contracts of b> the vendor.— See 33 A. S. 791; 94 A. S. 119. Damages-As to, generally, see "Measure of damages, this "°Same— For breach of implied warranty.— See 13 L. 385. Same— For sale of article that has no market value.— See 57 ^'same-Loss of proceeds of sale or P^rchase.-See 52 L. 209^ Same-Measure of for breach of warranty of title to goods sold.— See 7 A. C. 937. , t -sq Same— On breach by purchaser.— See 3 L. obJ. Same— On breach by seller.— See 3 L. 589. Same— Recovery of for personal injuries m action for breach of warranty.— See 5 A. C. 588. o oq t vns Death of party, effect on contract of sale.-See 23 K 708. Delivery of goods— As to. generally, see 3 A. C. 903. b a. ^' sime— Reasonableness of time for delivery of goods sold, as question of law or fact.— See 6 A. C. 245. Deposit of grain in warehouse as bailment or sale.— bee A. C. 1074. 947 g ^721 CIVIL, CODE. [Div.III.Pt.IV. -J Description, implied warranty on sale by. — ^See 14 L. 492. Differences between and bailments. — See 2 A. S. 711. Distinguished from bailment. — See 10 L. 233. Distinguished from contract to manufacture. — See 6 L. 788; 14 L. 723. Duties rights and remedies of parties — As to, generally, see 2 L. 519; 3 L. 589; 11 L. 681: 15 L. 834; 17 L. 209; 20 L. 259; 21 L. 127; 21 L. 139; 24 L. 212; 50 L. 714; 52 L. 209; 52 L. 690; 59 L. 737; 61 L. 417. San: Kffect of contract to ship f. o. b. — See 62 L. 795-805. Same — Liability of purchaser on illegal sale of intoxicating liquors.— See 24 L. 212; 61 L. 417. Same — Pre-existing debt as consideration for bona fide pur- chase of property not negotiable. — See 36 L. 161-167. Same — Rescission for fraud. — See 1 L. 618; 2 L. 153; 4 L. 368; 6 L. 151; 9 L. 611; 14 L.'264; 15 L. 189; 15 L. 795; 21 L. 135; 51 L. 484; 64 L. 827. Same — Restrictions on sale or use of property as affecting purchaser. — See 55 L. 631-639. Same — Stoppage in transitu — As to generally, see 3 L. 647; 4 L. 732; 11 L. 347. Same — Same — Waiver of by attachment or execution. — See 50 L. 714-721. Effect of, as ademption of legacy. — See 1 L. 204. Election of remedies in case of fraudulent purchase. — See 15 L. 89. Express warranty. — See "Warranty — Express," this note. Extent of liability for breach of implied warranty. — See 4 A. C. 1123. F. o. b. — Effect of contract to ship goods. — See 62 L. 795-805. Same— Meaning of.— See 9 A. S. 199; 33 L. ed. 405; 3 W. & P. 2966. Same — Which party is to furnish cars under a contract for shipment.— See 6 L. N. S. 928. Food produce, implied warranty on sale of. — See 4 A. C. 1123, 1124. Fraud, purchase by insolvent with intention not to pay. — See 53 A. R. 449. Fraudulent concealment by vendor, effect of. — See 15 A. D. 106. Fraudulent purchase, when entitles vendor to reclaim the goods. — See 33 A. D. 702. "Good," effect of representing thing sold to be. — See 15 L. 795. Goods, sale and delivery of, admissibility of books of account to prove. — See 52 L. 690. Having in view the subsequent violation of foreign or domes- tic law. — See 32 A. S. 450. Implied warranty. — See "Warranty — Implied," this note. Same — On sale of corporate stock. — See 11 A. C. 168. 948 Tit.I,ch.I,art.I.] sales, generally. § 1721 Insolvents, purchases by, when deemed fraudulent. — See 27 A. R. 504. Knowledge by vendor that the property is to be used for an unlawful purpose, whether prevents his recovery of the pur- chase price. — See 32 A. R. 122. Larceny, sale of another's property as. — See 10 L. N. S. 816. Latent defects, implied warranty that article is free from. — See 22 L. 193. Liability — ^For loss of or damage to personal property pend- ing exercise of option to buy. — See 6 L. N. S. 273. Same — Fraudulently concealing defects in article causing injury to stranger by reason of defect. — See 5 A. C. 128. Same — Of seller for injury caused by explosion. — See 5 A. C. 181. Same — Of seller of article known to be dangerous by reason of concealed defects.— See 5 A. C. 124, 128; 5 A. C. 181. Lien of vendor of personalty. — See 83 A. S. 451. Loan of intoxicating liquors as a. — See 8 L. N. S. 937. Loss during transit, who must bear. — See 26 A. S. 451. Loss of proceeds of sale or purchase as damages. — See 52 L. 209. Loss of property after but before payment, who must bear. — See 22 A. S. 866. Measure of damages — For breach of contract for sale of goods deliverable in installments. — See 6 A. C. 164, 166. Same — For breach of implied warranty. — See 18 L. 385. Same — For breach of warranty of title to goods sold. — See 7 A. C. 937. Same — On breach by purchaser. — See 3 L. 589. Same — On breach by seller. — See 3 L. 589. Same — Price at which goods are resold as affecting for breach of warranty as to quality. — See 5 L. N. S. 1151. Same — Recoverable by vendor for breach of contract to pur- chase article to be manufactured. — See 7 A. C. 1175. Misrepresentation by vendor of price paid for property, as* actionable deceit. — See 8 A. C. 1062; also note § 1709 ante. Necessity of writing to make binding commission to pur- chase personal property. — See 11 L. N. S. 650. Negatives or engraved plates, use without consent of party who has paid for same. — See 50 L. 397. Of articles to be manufactured, title, when does not pass though payment has been made. — See 40 A. R. 173. Of business, effect to carry with it good will. — See 3 L. 769. Of chattels — By sample. — See 7 A. D. 125. Same — Implied warranties arising from. — See 6 A. D. 113. Same — Not in being. — See 4 A. D. 560. Same — Possession, retention of by the vendor. — See 14 A. D. 383. 949 § ;1^721 CIVIL CODE. [Div.III,Pt.IV. Same — Quality, warranty of, what amounts to. — See 1 A. D. 84. Same — Warranty, of quality, when implied. — See 2 A. D. 220. Same — With agreement that vendor may retain possession. — See 6 A. D. 287. Of future crops. — See 23 L. 449. Of goods to be acquired. — See 4 L. 398. Of personal property to be delivered in the future, and stat- utes rut;-.;'r!ting or prohibiting. — See 1 A. S. 752. Of personalty, delivery of, when does not pass title. — See 120 A. S. 868. Of property — Manufactured to order, and remedies of the manufacturer when the purchaser refuses to accept. — See 56 A. D. 642. Same — Not in existence. — See 81 A. S. 42. Of trade-mark. — See 1 L. N. S. 704. Of unsound and noxious food, liability of the vendor for. — See 73 A. D. 165. Offer to buy or sell. — See Kerr's Cyc. C. C. § 1727 and note. Options— As to, generally, see Kerr's Cyc. C. C. §§ 1229, 1727 and notes. Same — To buy, liability for loss or damage of personal prop- erty pending exercise of. — See 6 L. N. S. 273. Oral warranty, as to, see 12 L. 694. Partnership, liability of for fraud — In purchase of property. — See 51 L.. 484. Same — In sale of property. — See 51 L. 485. Patent right, prior use and sale of invention as affecting. — See 1 L. 48. Patented articles, restriction on sale or use of. — See 55 L. 633. Payment or tender of price, as to, generally, see 3. A. C. 903; 6 A. C. 243; 7 A. C. 541. Performance of executory contract for sale of personal prop- erty after discovery of fr-aud, as affecting right to action for damages. — See 7 A. C. 280. Persons liable for breach of implied v^^arranty. — See 6 A. C. 237. Place where deemed to have been made. — See 99 A. D. 670. Possession, change of sufficient as against creditors and sub- sequent purchasers. — See 97 A. D. 340. Power of state to make invalid a purchase in a sale of gopds for resale, forbidding purchaser to handle goods of other deal- ers. — See 11 L. N. S. 968. Same — Of another's property as larceny. — See 10 L. N. S. 816. Pre-existing debt as consideration for bona fide purchase of property not negotiable. — See 36 L. 161-167. Recoupment of damages for breach of warranty. — See 1 L. 339. 950 Tit.I,cli.I,art.I.] sales, generally. § 1721 Refusal -to execute purchase money notes, effect of to give vendor an immediate right of action. — See 12 L. N. S. 180. Remedies of purcliaser — Action for breach of contract for goods deliverable in installinents. — See 6 A. C. 60-63. Same — Action for deceit — Misrepresentation by vendor of price paid for property, as. — See 8 A. C. 1062. Same — Measure of damages. — See 6 A. C. 164, 166. Same — Performance of executory contract for sale of per- sonalty after discovery of fraud, as affecting right of action for damages. — See 7 A. C. 280. Remedies of seller — Action for breacli of contract — Defenses. —See 9 A. C. 188. Same — Same — Measure of damages. — See 2 A. C. 997. Same — Same — Same — Contract for goods to be manufactured. — See 7 A. C. 1172, 1175. Same — Same — Same — Evidence. — See 2 A. C. 997. Same — Same — Same — Executory contract. — See 2 A. C. 814; 2 A. C. 997. Same — Same — Same — Fixed charges.- — See 2 A. C. 997. Same — Same — Same — Question for jury. — See 9 A. C. 1168. Same — Same — Same — Value at place of delivery. — See 9 A. C. 188. Same — Rescission of contract. — See 3 A. C. 898, 901. Remedies of vendee for breach of warranty of quality. — See 54 A. D. 146. Rescission — Bankruptcy proceedings, effect on prior actions to rescind sale for fraud. — See 8 L. N. S. 1204. Same — Burden of proof as to payment of value by, or notice of fraud to, subvendee of chattels, when original seller seeks to rescind for fraud of first purchaser. — See 8 L. N. S. 448. Same — Effect of default in payment, followed by rescission, as forfeiture of payment already made. — See 3 L. N. S. 785. Same — For breach of warranty. — See 4 L. 370; 9 L. 611. Same— For fraud.— See 1 L. 618; 2 L. 153; 14 L. 264; 64 L. 827. Same — For fraud in purchase on credit. — See 18 A. S. 362. Same — For gross ignorance or mistake respecting the value of property. — See 54 A. R. 614. Same — Notice to vendor as condition of right to refuse sub- sequent deliveries after breach as to earlier deliveries. — See 8 L. N. S. 1110. Same — Of contract for delivery of goods on account of non- payment of installment. — See 3 A. C. 901. Same — Return of goods requisite to replevin of property obtained by fraudulent purchase. — See 1 L. N. S. 474. Same — Tender as condition of for breach of warranty, cov- ers all property sold. — See 8 L. N. S. 727. Same — Waiver of fraud by coinpleting executory contract of sale after discovering the fraud. — See 8 L. N. S. 452. 951 § 1721 CIVIL CODE. [Div.III,Pt.IV. Resrictions on sale or use of property as affecting-purchaser. — See 55 L. 631-639. Return of article that does not comply with wari-anty neces- sary to a recovery for breach. — See 1 L. 646. Right of buyer to maintain separate action for non-delivery of each installment under an entire contract. — See 3 L. N. S. 142. Right to sell property while in custody of law. — See 11 L. N. S. 1055. Rights and liabilities of vendor and purchaser by conditional sale on default u*' payment. — See 32 L. 455-471. Rights and remedies of parties — As to, generally, see 1 L. N. S. 242; 10 L. N. S. 1200; 12 L. N. S. 679. Rule for measuring damages in action by vendee for breach of contract for sale of goods deliverable in installments. — See 6 A. C. 166. Rule of caveat emptor. — See 3 L. 441; 6 L. 73; 6 L. 375. Sale in bulk, statutory requirements as to. — See 2 L. N. S. 331-341; 12 L. N. S. 174. Sample, warranty on sale of goods by. — See 5 L. 702; 70 L. 653-665. "Satisfactory," effect of stipulation that goods shall be. — See 1 L. 645; 17 L. 202. Set-off, availability of breach of warranty as a. — See 10 L. 379. Stoppage in transitu — As to, generally, see 29 A. D. 384; 19 A. R. 384; 1 A. S. 312. Same — Right of, when terminates. — See 60 A. R. 51. "Strike" clause in contract of sale and delivery, effect of. — See 9 L. N. S. 1187. Successive actions for breach of contract performable in installments. — See 6 A. C. 63. Tender of property to buyer who is in default in fixing date for delivery and is not present at the agreed place. — See 2 L. N. S. 529. Title of owner not consenting to or participating in, when may be devested by. — See 25 A. D. 665; 3 A. S. 196. Title passes to buyer, when. — See Kerr's Cyc. C. C. §1140 and note. ' Title passes when — As to, generally, see 1 L. 767; 2 L. 519; 3 L. 199; 10 L. 314; 17 L. 177; 70 L. 321; 2 L. N. S. 383; 2 L. N. S. 1078; 5 L. N. S. 475; 8 L. N. S. 793; 11 L. N. S. 948. Same — By delivery to carrier. — See 22 L. 415-429. Same — Effect of attaching draft to bill of lading. — See 5 A. C. 261, 263. Same — Effect of payment of price in installments. — See 10 A. C. 137, 141. Same — On goods sold from mass. — See 9 A. C. 25, 26. Same— Where shipment C. O. D.— See 2 L. N. S. 383. 952 Tit.I,ch.I,art.I.] SALES, generally. § 1721 Title to vessel or article to be built or manufactured, when passes by. — See 62 A. D. 65. Transactions which constitute a sale and not a mortgage. — See 1 L. 241; 6 L. 643. Validity — Of a contract for purchase of indefinite quantity. — See 15 L. 218. Same — Of sale made in violation of law. — See 12 L. N. S. 595. Vendee cannot resist payment on the ground that the sale was made, to defraud creditors. — See 30 A. R. 517. Warranty — As to, generally, see 64 L. 825. Same — As to latent defects, see 3 L. 184. Same — Before or after sale. — See 13 L. 678. Same — Breach of — Availability of as a set-off. — See 10 L. 379. Same — Same — In principal contract, as defense to a surety. — See 21 L. 406. Same — Same — Measure of damages for of implied. — See 18 L. 385. Same — Same — Rescission for. — See 4 L. 370; 9 L. 611. Same — Determination of question as to breacli. — See 5 A. C. 960. Same— Effect of on sale of expectancy by prospective heir. — See 33 L. 274. Same — Effect of representing things to be good. — See 15 L. 795. Same — Effect of stipulation that goods shall be satisfactory. — See 17 L. 208; also 1 L. 645. Same — Express — As to, generally, see 6 L. 374. Same — Same — As applicable to goods not in existence. — See 6 A. C. 109, 115. Same — Same — As defense to prosecution. — See 6 A. C. 189. Same — Same — Measure of damages for breach of. — See 5 A. C. 586, 588; 7 A. C. 935, 937. Same — Implied — As to, generally, see 6 A. C. 237; 10 A. C. 168; 6 L. 374; 6 L. 392. Same — Same — By manufacturer or vendor of machinery or apparatus, not in itself defective, of fitness for use under the existing conditions. — See 6 L. N. S. 180. Same — Same — Existence of on judicial sale. — See 3 L. 440. Same — Same — Extent of liability for breach. — See 4 A. C. 1123. Warranty — Same — Of fitness of property bought for special purpose. — See 22 L. 187-197. Same — Same — Of genuineness on sale of negotiable paper. — See 36 L. 92. Same — Same — Of quality in sales by description. — See 14 L. 492. Same — Same — On a sale of chattels. — See 24 A. R. 181. Same — Same — On sale of stock. — See 53 L. 153. Same — Same — Persons liable for breach. — See 6 A. C. 237. 953 § 1722 CIVIL CODE. [Div.III,Pt.IV. Same — Same— Sale of food produce. — See 4 A. C. 1123, 1124. Same — Same — Upon sale of an article by the manufacturer. — See 24 A. R. 104. Same — Necessity to return an article that does not comply with. — See 1 L. 646. Same — Of goods by sample. — See 5 L. 702. Warranty — Of quality, when implied. — See 55 A. D. 328; 102 A. S. 607. Same — Of satisfaction. — See 1 L. 645; 17 L. 208. Same-- Of sounciness of horse. — See 3 L. 184; 12 L. 695. Same — Of sounaness, what defects constitute breaches of. — See 53 A. D. 173. Same — Of soundness, when implied. — See 43 A. D. 680. Same — Of title implied on the sale of personal property. — See 62 A. D. 460. Same — On sale by manufacturer. — See 6 L. 392. Same — On sale of goods by sample. — See 70 L. 653-665. Same — Oral, as to, generally, see 12 L. 694. Same — Parol evidence to show outside of the contract. — See 5 A. S. 197. Same — Personal injury as element of damages for breach of. —See 3 L. N. S. 1047. Same — Price at which goods are resold as affecting measure of damages as to breach of, as to quality. — See 5 L. N. S. 1151. Same — Recoupment of damages for breach of. — See 1 L. 339. Same — Rescission of contract for breach of. — See 4 L. 370; 9 L. 611. Same — Right on breach of. — See 1 L. N. S. 42; 3 L. N. S. 465; 11 L. N. S. 245; 12 L. N. S. 82. What articles pass as appurtenances upon sale of chattels. — See 8 L. N. S. 793. What constitutes. — See 94 A. S. 209. When purchaser acquires no title. — See 13 L. 717. When title passes — To article contracted for, price to be paid by installments during construction. — See 10 A. C. 141. Same — To goods sold from mass. — See 9 A. C. 26. § 1722. SUBJECT OF SALE. The subject of sale must be property, the title to which can be immediately transferred from the seller to the buyer. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 97 C. 70, 71, 31 P. 733 (construed and applied); 6 C. A. 152, 158, 91 P. 667 (what is not a sale but a contract to convey at a future period — contract to will property). 954 i Tit.I,ch.I,art.II.] AGREEMENT FOR. §§1726,1727 As to many miscellaneous matters as to sales, see note § 1721, ante. , r-i n' r^ As to permitting vendor to perfect title, see Kerr s Cyc C. C. § 1731 and note par. 189. . . Assignment by seller of contract to sell— Title authonzmg sale not conferred.— See Kerr's Cyc. C. G. § 1721 and note par. 7. Goods to be acquired— Sale of.— See 4 L. 398-400. Sale of stolen property or property obtained by fraud.— bee What property may be subject of sale.— See Kerr's Cyc. C. C. § 1730 and note. ARTICLE II. AGREEMENT 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 [repealed]. § 1733. Usual common-law covenants required by such contracts, when. § 1734. Form of such covenants. § 1726. AGREEME^^T FOR SALE. An agreement for sale is either : 1. An agreement to sell; 2. An agreement to buy; or, 3. A mutual agreement to sell and buy. History: Enacted March 21, 1872. 87 C. 49, 54, 25 P. 249, 250 (referred to); 95 C. 134, 137, 29 A. S. 101, 30 P. 202, 203 (commissioners' decision), 27 P. 286, 287 (referred to). 01-01 As to many miscellaneous matters as to sales, see note ^ l<-i. ante. § 1727. AGREEMENT TO SELL. An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing. History: Enacted March 21, 1872. 955 § 1728 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 37 pars, annotation. 74 C. 376, 379, 16 P. 194, 195 (cited); 95 C. 134, 137, 29 A. S. 101, 30 P. 202, 203 (commissioners' decision), 27 P. 286, 287 (cited); 98 C. 377, 380, 33 P. 266, 267 (construed); 147 C. 747. 749, 82 P. 426 (cited — sale, whetlier absolute or conditional). As to many miscellaneoiis matters as to sales, see note § 1721, ante. As to mode and requisites of acceptance, see Kerr's Cyc. C. C. §§ 1580--i.^Sil and notes. As to nature of contract upon call being- made, see Kerr's Cyc. C. C. § 1729 and note par. 2. As to necessity for delivery as against creditors, see Kerr's Cyc. C. § 3440 and note. As to options, see Kerr's Cyc. C. C. § 1727, note pars. 32, 36 this note. As to revocation of proposal, see Kerr's Cyc. C. C. § 1586 and note. Agreement to buy at option of seller. — See Kerr's Cyc. C. C. § 1729 and note par. 6. Assignment by seller of contract to sell — Effect of. — See Kerr's Cyc. C. C. § 1721 and note par. 7. Damages for breach of agreement to sell. — See Kerr's Cyc. C. C. §§3308, 3309. and notes. Distinction between various contracts. — See Kerr's Cyc. C. C. § 1721 and note pars. 15-37. Rescission of contract.— See Kerr's Cyc. C. C. §§ 1688-1691 and notes. Rights conferred by "refusal" or "option." — See 21 L. 127-133. § 1728. AGREEMENT TO BUY. 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. Histt.ry: Enacted March 21, 1872. 95 C. 134, 137, 29 A. S. 101, 30 P. 202, 203 (commissioners' decision), 27 P. 286, 287 (referred to). As to many miscellaneous matters as to sales, see note § 1721, ante. Countermand of order mailed by buyer. — See Kerr's Cyc. C. C. § 1727 and note par. 21. Damages for breach of agreement. — See Kerr's Cyc. C. C. §§ 3310, 3311 and notes. Options. — See Kerr's Cyc. C. C. § 1727 and note pars. 32-36. Rescission of contract. — See Kerr's Cyc. C. C. §§ 1688-1691 and notes. 956 Tit.I,ch.I,art.II.] WHAT may be sold. §§ 1729-1731 § 1729. AGREEMENT TO SELL AND BUY. An agreement to sell and buy is a contract by which one engages to trans- fer the title to a certain thing to another, who engages to accept the same from him and to pay a price therefor. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 63 C. 575, 577 (referred to); 87 C. 49, 54, 25 P. 249, 250 (cited); 95 C 134, 137, 29 A. S. 101, 30 P. 202, 203 (commissioners' deci- sion), 27'p. 286. 287 (construed); 98 C. 377, 381, 33 P. 266, 267 (cited); 7 C. A. 241, 243, 94 P. 82, 83 (instance of complete agreement to buy and sell). As to many miscellaneous matters as to sales, see note § 1721, ante. As to offers to perform, see Kerr's Cyc. C. C. § 1485 and note.- Damag-es for breach of contract.^'Kerr's Cyc. C. C. §§ 3310, 3311 and notes. Options.— See Kerr's Cyc. C. C. § 1727 and note pars. 32-36. §1730. WHAT MAY BE THE SUBJECT OF THE CON- TRACT. Any propei^ty which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 95 C. 134, 137, 29 A. S. 101, 30 P. 202, 203 (commissioners- decision), 27 P. 286, 287 (referred to). As to assignments of choses in action, see Kerr's Cyc. C. C. § 954 and note pars. 19 et seq. As to many miscellaneous matters as to sales, see note § 1721, ante. Goods to be acquired — Sale of. — See 4 L. 398-400. Irr^plied warranty of merchandise not in existence. — See Kerr's Cyc. C. C. § 1768 and note. Partnership property pending receivership and suit for ac- counting. — See Kerr's C. C. §1722 and note par. 7. Property not in existence. — See 81 A. S. 42-46. Sale or mortgage of future crops. — See 23 L. 449-476. Title requisite in seller.— See Kerr's Cyc. C. C. § 1722 and note pars. 2 et seq. §1731. AGREEMENT TO SELL REAL PROPERTY. An agreement to sell real property binds the seller to execute a 957 § 1731 CIVIL CODE. [Div.III,Pt.IV. conveyance in form sufficient to pass the title to the prop- erty. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 243. See Kerr's Cyc. C. C. for 210 pars, annotation. 109 C. 558, 563, 42 P. 39 (construed). As tc alteration of written contract by unexecuted oral agree- ment, see Kerr's Cyc. C. C. § 1698 and note. As to conditions, see Kerr's Cyc. C. C. §§ 707-711 and notes. As to conditions concurrent, see Kerr's Cyc. C. C. §§ 1437, 1439 and notes. As to conveyance of homestead, see Kerr's Cyc. C. C. § 1242 and note. As to defense to action on note given for purchase money when title fails, see Kerr's Cyc. C. C. § 1731, note par. 188. As to effect of offer of performance, see Kerr's Cyc. C. C. § 1504 and note. As to fee-simple title being presumed in case of grant of real property, see Kerr's Cyc. C. C. § 1105 and note. As to jurisdiction over non-residents, see 20 A. S. 212. As to many miscellaneous matters as to sales, see note § 1721. ante. As to mistake in quantity of land — Relief from. — See 4 L. 525, 526; 11 L. 376, 377. As to necessity to demand deed, see Kerr's Cyc. C. C. § 1731, note pars. 24-30. As to novation, see Kerr's Cyc. C. C. §§ 1530-1533 and notes. As to objections to mode of offer of performance, see Kerr's Cyc. C. C. § 1501 and note. As to property wliich passes to heirs, see Kerr's Cyc. C. C. § 1384 and note. As to rescission of contracts, see Kerr's Cyc. C. C. §§ 1G88- 1691 and notes. As to relief of vendee on ground of defective title, see 65 A. D. 608, 70 A. D. 340. As to remedy of vendee where vendor's title defective, see 20 A. S. 217; 25 A. S. 212. As to right to rescind if consideration fails, see Kerr's Cyc. C. C. § 1689 subd. 4 and note. As to sufficiency of partial performance, see Kerr's Cyc. C. C. §§ 1477, 1524 and notes. As to suits for specific performance, see Kerr's Cyc. C. C. §§ 3384-3396 and notes. As to waiver of such objection, see Kerr's Cyc. C. C. § 1731, note par. 205 this note. 95S Tit.I,ch.I,art.II.] covenants. §§ 1732, 1733 As to when time is of essence of contract, see 50 A. D. 597- 600, 676-678; 68 A. D. 87. As to yielding possession of goods sold upon failure of title, see Kerr's Cyc. C. C. § 1786 and note par. 27. Conveyance to satisfy contract. — See 11 A. D. 34-39; 26 A. D. 625, 626. Covenants required to be inserted in deed. — See Kerr's Cyc. C. C. §§ 1733, 1734 and notes. Damages for breach of agreement to convey land. — See Kerr's Cyc. C. C. § 3306 and note. Deed, duty of preparing, on whom cast.- — See 26 A. D. 625. Demand for conveyance, purchaser's duty to make. — See 16 A. D. 427, 428. Evasion of payment or tender by vendor. — See Kerr's Cyc. C. C. § 1512 and note. Executor's sale under power is not judicial sale. — See Kerr's Cyc. C. C. § 1777 and note. Executory contract to sell or sale. — See Kerr's Cyc. C. C. § 1721 and note. Form of conveyance. — See Kerr's Cyc. C. C. § 1092 and note. Lien of purchaser for money paid. — See Kerr's Cyc. C. C. § 3050 and note. Married women's contracts to convey land. — See Kerr's Cyc. C. C. § 158 and note. Nature of interest of vendor or purchaser in land contract as real or personal property. — See 57 L. 643-654. Omission of covenants. — See Kerr's Cyc. C. C. § 1733 and note. Purchaser's remedies for failure of title. — See 5 L. 45-47. Purchaser's rights upon rescission. — See 12 A. D. 312, 314. Quantity not warranted when sale is for sum in gross. — See Kerr's Cyc. C. C. § 1733 and note. Requisites for transfer of estate in land. — See Kerr's Cyc. C. C. § 1091 and note. Title deeds. — See Kerr's Cyc. C. C. § 994 and note. Vendor's lien. — See Kerr's Cyc. C. C. §§ 3046-3048 and notes. § 1732. rOBM OF GRANT REQUIRED BY SUCH COX- TRACT (repealed). Historr: Enacted March 21, 1872, repealed March 30. 1874, Code Amdts. 1873-4, p. 243. §1733. USUAL COMMON-LAW COVENANTS REQUIRED BY SUCH CONTRACTS, WHEN. 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 "seizin," "quiet enjoy- 959 § 1734 CIVIL CODE. [Div.III.Pt.IV. ment," "further assurance," "general warranty," and "against encumbrances." History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. As to waiver of objections to deed, see Kerr's Cyc. C. C. § 1731 ana not.- Covenants running with land. — See Kerr's Cyc. C. C. §§ 1460- 1468 and notes. Fraud in sale of real estate. — See 2 A. D. 77-81. Implied covenants when word "grant" is used in convey- ance.— See Kerr's Cyc. C. C. § 1113 and note. Parol evidence to show warranty outside of deed or other contract.— See 5 A. S. 199-201. Quitclaim deed — What title passes by. — See' Kerr's Cyc. C. C. § 1113 and note pars. 17, 18. §1734. FORM OF SUCH COVENANTS. 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 in fee simple of the property granted; that the latter shall enjoy the same without any lawful disturbance; that the same is free from all encumbrances; 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 expense of the latter, any further assur- ance 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 law- fully claiming the same." History: Enacted March 21, 1872. As to commissioners' comment on this section, see Kerr's Cyc. C. C. §§ 1734, note par. 1. As to many miscellaneous matters as to sale, see note § 1721; ante. Title of vendor. — See Kerr's Cyc. C. C. § 1731 and note pars. 143-201. 960 Tit.I,ch.I,art.III.] PERSONAL PROPERTY. §§ 1739, 1740 ARTICLE III. FORM OF THE CONTRACT. § 1739. Contract to sell personal property. § 1740. Contract to manufacture. § 1741. Contract for sale of real property. §1739. CONTRACT TO SELL PERSONAL PROPERTY. No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless: 1. The agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged, or by his agent; or, 2. The buyer accepts and receiyes part of the thing sold, or when it consists of a thing in action, part of the evidences thereof, or some of them; or, 3. The buyer, at the time of sale, pays a part of the price. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 243. See Kerr's Cyc. C. C. for 6 pars, annotation. 67 C. 93, 7 P. 195 (referred to as inapplicable); 68 C. 17, 8 P. 502, 503 (construed and applied); 70 C. 399, 400, 402, 11 P. 743 (construed and applied); 91 C. 669, 670, 27 P. 1080, 14 L. 230 (construed in connection with §1740); 105 C. 514, 519, 45 A. S. 87, 39 P. 200 (applied); 119 C. 545, 551, 51 P. 853, 52 P. 44 (referred to in dis. op.); 123 C. 548, 549, 56 P. 451 (cited); 2 C. A. 451, 452, 83 P. 578 (construed with § 1973 C. C. P. — what oral contract to purchase, over two hundred dollars, is not within statute of frauds). As to many miscellaneous matters as to sales, see note § 1721, ante. Exchange — Form of contract. — See Kerr's Cyc. C. C. § 1805 and note. §1740. CONTRACT TO MANUFACTURE. An agreement to manufacture a thing, from material furnished by the man- ufacturer, or by another person, is not within the provisions of the last section. History: Enacted March 21, 1872. Kerr's C. C— 31 961 § 1741 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 5 pars, annotation. 91 C. 669, 670, 27 P. 1080, 14 L. 230 (construed in connection witli § 1729). As to many miscellaneous matters as to sales, see note § 1721, ante. Contract to manufacture article. — See 9 A. D. 188-190. §1741. CONTEACT FOR SALE OF REAL PROPERTY. No agreement for the sale of real property, or of an interest thereiiiv ii? valid, unless the same, or some note or memoran- dum thereof, be in writing, and subscribed by the party to be charged, or his agent, thereunto authorized, in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 243, 244. See Kerr's Cyc. C. C. for 5 pars, annotation. 64 C. 24, 26, 28 P. 107 (cited); 78 C. 529, 534, 21 P. 179, 181 (construed and applied); 87 C. 49, 54, 25 P. 249, 250 (construed and applied); 91 C. 442, 446, 27 P. 744, 745 (applied); 93 C. 493, 495, 27 A. S. 212, 29 P. 119 (construed); 140 C. 157, 159, 73 P. 840 (applied); 142 C. 152, 156, 75 P. 777 (applied); 5 C. A. 367, 369, 90 P. 469 (applied — no decree of specific performance without part performance, and payment of purchase price alone is not part performance); 5 C. A. 665, 668, 91 P. 164 (applied — no decree of specific performance as to land not described in contract, if contract is definite, certain, and complete). As to many miscellaneous matters as to sales, see note § 1721, ante. 962 Tit.I.ch.II.art.I.] RIGHTS, OBLIGATIONS. §§ 1748, 1749 CHAPTER II. RIGHTS AND OBLIGATIONS OF THE SELLER. Article I. Rights and Duties Before Delivery, §§ 1748, 1749. II. Delivery, §§ 1753-1758. III. Warranty, §§ 1763-1778. ARTICLE I. RIGHTS AND DUTIES BEFORE DELIVERY. § 1748. When seller must act as depositary. § 1749. When seller may resell. §1748. WHEN SELLER MUST ACT AS DEPOSITARY. After personal property has been sold, and until the delivery is completed, the seller has the rights and obligations of a depositary for hire, except that he must keep the property, without charge, until the buyer has had a reasonable oppor- tunity to remove it. History: Enacted March 21, 1872. 151 C. 479, 482, 91 P. 1.52 (applied to sale of salt left in seller's possession — bailee and bailor). As to many miscellaneous matters as to sales, see note § 1721, ante. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 1748, note. § 1749. WHEN SELLER MAY RESELL. If a buyer of per- sonal property does not pay for it according to contract, and it remains in the possession of the seller after payment is due, the seller may rescind the sale, or may enforce his lien for the price, in the manner prescribed by the title on liens. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 47 pars, annotation. 58 C. 431, 435, 41 A. R. 266 (applied); 86 C. 531, 536, 25 P. 63, 64 (referred to as inapplicable); 120 C. 416, 419, 420, 52 P. 666 (construed). 963 ' § 1749 CIVIL CODE. [Div.III.Pt.IV. As to action by buyer who is undisclosed principal, see Kerr's Cyc. C. C. § 1753 and note. As to breach of contract by purchaser of land, see Kerr's Cyc. C. C. § 1731 and note. As to extinguishment of obligation by offer of performance, see Kerr's Cyc. C. C. § 1485 and note. As to many miscellaneous matters as to sales, see note § 1721, ante. Counterclaim upon breach of warranty in an action for price.— f-e Kerr's Cyc. C. C. § 1786 and note. Damages for buyer's breach of contract. — See Kerr's Cyc. C. C. §§ 3310, 3311 and notes. Duty of buyer to pay price. — See Kerr's Cyc. C. C. § 1784 and note. Excessive quantity delivered. — See Kerr's Cyc. C. C. § 1753 and note pars. 27, 29. Mechanics' and materialmen's liens. — See Kerr's Cyc. C. C. P. §§ 1183-1203 and notes. Mutual and dependent stipulations to deliver and make pay- ment. — See Kerr's Cyc. C. C. § 1753 and note. Lien of seller for price. — See Kerr's Cyc. C. C. § 3049 and note. Rescission of contract. — See Kerr's Cyc. C. C. §§ 1688-1691, 1785, 1786 and notes. Stoppage in transitu. — See Kerr's Cyc. C. C. §§ 3076-3080. and notes. Wharfage and demurrage are chargeable to buyer. — See Kerr's Cyc. C. C. § 1755 and note par. 3. 964 Tit.I.ch.II.art.IL] delivery ON demand. § 175^ ARTICLE II. DELIVERY. § 1753. Delivery on demand. § 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. DELIVERY ON DEMAND. One who sells personal property, whether it was in his possession at the time of sale or not, must put it into a conditioh fit for delivery, and deliver it to the buyer within a reasonable time after demand, unless he has a lien thereon. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 74 pars, annotation. 82 C. 474, 479, 23 P. 118, 119 (referred to as inapplicable); 147 C. 313, 319, 81 P. 964 (applied with § 1754). As to action by undisclosed seller who is principal, see Kerr's Cyc. C. C. § 1749 and note par. 46. As to duty to separate things which are mixed with others, see Kerr's Cyc. C. C. § 1497 and note. As to effect of refusal to accept performance before offer, see Kerr's Cyc. C. C. § 1515 and note. As to offer of partial performance, see Kerr's Cyc. C. C. § 14S6 and note. As to many miscellaneous matters as to sales, see note § 1721, ante. As to partial performance, see Kerr's Cyc. C. C. §14m and As to prevention of performance, see Kerr's Cyc. C. C. §§ 1511, 1512 and notes. As to resale of land, see Kerr's Cyc. C. C. § 1731 and note. As to warehouse receipts, etc., see Kerr's Cyc. C. C. § 1753, note pars. 69, 73. Acceptance and delivery of goods.— See 49 A. D. 325-340; 37 A. R. 16-22; 60 A. S. 237, 238; 96 A. S. 215-229. Complaint must allege offer or readiness to deliver, when.— See Kerr's Cyc. C. C. § 1749 and note par. 27. Damages for breach of contract by seller.— See Kerr's Cyc. C. C. §§ 3308, 3309 and notes. 965 § 1754 CIVIL CODE. [Div.III,Pt.IV. Delay in delivery — Waiver of damages by acceptance. — See 54 L. 718-721. Delivery and payment concurrent conditions. — See Kerr's Cyc. C. C. § 1784 and note pars. 14-16. Delivery — Fixes time of payment, when. — See Kerr's Cyc. C. C. § 1784 and note pars. 14, 15. Duty of buyer to take away thing sold. — See Kerr's Cyc. C. C. § 1784 and note. EfEec#.-^f contract to ship goods f. o. b. — See 62 L. 795-808. Election to return or pay for property. — See Kerr's Cyc. C. C. § 1784 and note par. 20. Excuses for non-performance. — See Kerr's Cyc. C. C. § 1511 and note. Excuses for non-performance and prevention of performance. —See Kerr's Cyc. C. C. §§ 1511, 1512 and notes. Frauds, statute of — Delivery and acceptance required by. — See Kerr's Cyc. C. C. § 1624 and note. Fraudulent transfer as against creditors and purchasers, when no delivery. — See Kerr's Cyc. C. C. § 3440 and note. Freedom from interruption in gathering fruit guaranteed. — See Kerr's Cyc. C. C. § 1763 and note par. 14. Prevention of performance. — See Kerr's Cyc. C. C. §§ 1512, 1514 and notes. Refusal to accept before offer. — See Kerr's Cyc. C. C. § 1515 and note. Requisites of delivery. — See 60 A. S. 237, 238. Sales — When complete. — See 39 A. S. 44. Stoppage in transitu.— See Kerr's Cyc. C. C. §§ 3076-3080 and notes. Title transferred, when. — See Kerr's Cyc. C. C. §§ 1140, 1141 and notes. § 1754. DELIVERY, WHERE MADE. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 84 C. 207, 213, 23 P. 1117, 1119 (cited); 147 C. 313, 319, 81 P. 964 (applied with § 1753). As to many miscellaneous matters as to sales, see note § 1721, ante. Common carrier — Delivery to. — See Kerr's Cyc. C. C. § 1753 and note. Offer of performance — Where to be made. — See Kerr's Cyc. C. C. § 1488, 1489 and n-otes. Place of delivery. — See 12 A. D. 573, 574. 966 Tit.I,ch.II,art.II.] NOTICE OF ELECTION. §§ 1755-1757 § 1755. EXPEASE OF TRANSPOETATIO. One who sells personal property must bring it to his own door, or other convenient place, for its acceptance by the buyer, but further transportation is at the risk and expense of the buyer. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. Buyer's risk. — See 75 A. S. 77-79. § 1756. NOTICE OF ELECTION AS TO DELIVERY. 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 option is waived. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 84 C. 207, 213, 23 P. 1117 (referred to). As to many miscellaneous matters as to sales, see note § 1721, ante. Option as to time for delivery. — See Kerr's Cyc. C. C. §1491 and note. § 1757. BUYER'S DIRECTIONS AS TO MANNER OF SENDING THING SOLD. 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 dur- ing its transportation. If he follows such directions, or if, in the absence of special directions, he uses ordinary care in forwarding the thing, it is at the risk of the buyer. History: Enacted March 21, 1872. 84 C. 207, 213, 23 P. 1117 (referred to). As to many miscellaneous matters as to sales, see note § 1721, ante. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 1757, note par. 2. 967 § 1758 CIVIL CODE. [Div.III.Pt.IV. §1758. DELIVERY TO BE WITHIN REASONABLE HOURS. The delivery of a thing sold can be offered or demanded only within reasonable hours of the day. History: Enacted March 21, 1872. As to many miscellaneous matters as to sales, see note § 1721, ante. For C«::;aiissioricrs' comment on this section, see Kerr's Cyc. C. C. § 1758, note par. 1. Offer of performance — When to be made. — See Kerr's Cyc. C. C. §§ 1490, 1491 and notes. Reasonable hour for delivery. — See 12 A. D. 574, 575. 968 Tit.I,ch.II,art.IIT.] what a warranty. § 1763 ARTICLE III. WARRANTY. § 176.3. 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 statements, etc. § 1768. Merchandise not in existence. § 1769. Manufacturer's warranty against latent defects. § 1770. Thing bought for particular purpose. § 1771. When thing cannot be examined by buyer. § 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. WARRANTY, WHAT. A warranty is an engage- ment by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 29 pars, annotation. 66 C. 238, 239, 5 P. 160 (cited); 4 C. A. 249, 254, 87 P. 410, 413 (cited). As to many miscellaneous matters as to sales, see note § 1721, ante. As to rebutting implied presumptions, see Kerr's Cyc. C. C. § 1765 and note par. 14. Breach of warranty — Remedies, pleading and practice. — See Kerr's Cyc. C. C. § 1786 and note pars. 21, 22. Damages for breach of warranty of quality. — See Kerr's Cyc. C. C. §§ 3313, 3314 and notes. Defects amounting to breach of warranty of soundness. — See 53 A. D. 173-179. Effect of acceptance of goods. — See 12 L. 399. Express warranty. — See 6 L. 374. Oral and written warranties. — See 12 L. 694-696. 969 §§ 1764, 1765 CIVIL CODE. [Div.III.Pt.IV. Parol evidence to show warranty outside of contract. — See 5 A. S. 197-199; 41 A. S. 606. Price paid as affecting implication of warranty. — See 43 A. D. 680. Representations as warranties. — See 15 A. R. 382-386. Set-off allowed in action for price. — See Kerr's Cyc. C. C. § 1776 and note par. 6. Soundness of horse warranted. — See 3 L>. 184; 12 L. 695. § 1764. NO IMPLIED WAERANTY IN MERE CONTRACT OF SALE. Except as prescribed by this article, a mere con- tract of sale or agreement to sell does not imply a warranty. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 65 C. 273, 274, 3 P. 889 (cited); 66 C. 238, 239, 5 P. 160 (cited); 92 C. 117,^123, 28 P. 98, 99 (applied); 47 P. 684, 686 (referred to), commissioners' decision reversed in 120 C. 228, 52 P. 496; 139 C. 564, 584, 96 A. S. 169, 73 P. 456, 457 (cited); 145 C. 272. 280, 78 P. 722 (cited); 4 C. A. 249, 255, 87 P. 410, 413 (referred to). As to application of doctrine when tliere is express warranty, see Kerr's Cyc. C. C. § 1763 and note par. 6. As to many miscellaneous matters as to sales, see note § 1721, ante. Agreement to sell — No implied warranty. — See Kerr's Cyc. C. C. § 1763 and note par. 2. Caveat emptor applies. — See 90 A. D. 424-431. Exchange of money — Warranty of genuineness. — See Kerr's Cyc. C. C. § 1807 and note. Implied warranties. — See 1 A. D. 84-86, 6 A. D. 113-115, 54 A. D. 145, 55 A. D. 328, 24 A. R. 181-183; 1 L. 645, 646; 6 L. 374, 375. Implied warranty of fitness of property bought for special purpose. — See 22 L. 187-198. §1765. WARRANTY OF TITLE TO PERSONAL PROP- ERTY. One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good and unen- cumbered title thereto. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 113 C. 345, 353, 45 P. 680 (construed and applied). As to many miscellaneous matters as to sales, see note § 1721, ante. ■• 970 Tit.I,ch.II,art.III.] ON SALE BY SAMPLE. §§1766,1767 As to yielding- possession of land, see Kerr's Cyc. C. C. § 1731 and note. As to yielding- possession upon failure of title, see Kerr's Cyc. Q. C. § 1765, note par. 9. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. § 1786 and note. Damag-es for breach of warranty of title to personal property. — See Kerr's Cyc. C. C. § 3312 and note. Warranty of title implied on sale. — See 62 A. D. 460-468; 16 A. S. 758, 759. §1766. WARRANTY ON SALE BY SAMPLE. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sample. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 145 C. 272, 278, 78 P. 722 (referred to as inapplicable); 147 C. 313, 327, 81 P. 964 (cited in dis. op.). As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. § 1786 and note. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. Sale by sample.— See 7 A. D. 125-132; 55 A. D. 328, 329. §1767. WHEN SELLER KNOWS THAT BUYER RELIES ON HIS STATEMENTS, ETC. One who sells or agrees to sell personal property, knowing that the buyer relies upon his advice or judgment, thereby warrants to the buyer that neither the seller, nor any agent employed by him in the transaction, knows the existence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer's inducement to buy. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission. — See Kerr's Cj^c. C. C. § 1786 and note. Damages for breach of warranty of quality for special pur- poses. — See Kerr's Cyc. C. C. § 3314 and note. 971 §§1768,1769 CIVIL CODE. [Div.III.Pt.IV. §1768. MERCHANDISE NOT IN EXISTENCE. One who agrees to sell merchandise not then in existence, thereby war- rants 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 secured by reasonable care. History: Enacted March 21, 1872. See Kerr s Cyc C. C. for 7 pars, annotation. 75 C. 558, 561, 17 P. 687, 688 (referred to); 76 C. 212, 214, 218, 9 A. S. 199, 18 P. 248, 249, 251 (construed and applied); 116 C. 239, 245, 48 P. 62 (construed and applied); 119 C. 442, 51 P. 689, 690 (referred to with other sections — sale of hams). As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. § 1786 and note. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. §1769. MANUFACTURER'S WARRANTY AGAINST LAT- ENT DEFECTS. One who sells or agrees to sell an article of his own manufacture thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 67 C. 610, 613, 8 P. 440, 442 (construed and applied); 75 C. 558, 561, 17 P. 687, 688 (referred to); 119 C. 442, 51 P. 689, 690 (referred to); 134 C. 324, 328, 66 P. 311 (applied); 152 C. 31, 40, 91 P. 983 (not applicable); 4 C. A. 249, 255, 256, 87 P. 410, 413 (doubtful whether prune trees are an article of defendant's own manufacture). As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. § 1786 and note. Commissioners' note cites: 78 A. D. 163. Complaint — Latent defect must be alleged as cause of injury. — See Kerr's Cyc. C. C. § 1786 and note par. 19. Damages — For breach of warranty of quality for special pur- poses. — See Kerr's Cyc. C. C. § 3314 and note. 972 Tit.I,ch.II,art.III.] particular purpose. § 1770 Same — 'For personal injuries are recoverable. — See Kerr's Cyc. C. C. § 1770 and note pars. 7, 8. Expert testimony is admissible. — See Kerr's Cyc. C. C. § 1770 and note pars. 10, 11. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. Rescission by buyer upon breach of warranty is permissible where machine sold breaks down. — See 67 C. 610, 613, 8 P. 440. Rights of buyer upon breach of warranty. — See Kerr's Cyc. C. C. § 1786 and note. Starting machine. — See Kerr's Cyc. C. C. § 1763 and note par. 27. Warranty implied upon sale of article by manufacturer. — See 24 A. R. 104-114. §1770. THING BOUGHT FOE PARTICULAR PURPOSE. One who manufactures an article under an order for a par- ticular purpose, warrants by the sale that it is reasonably fit for that purpose. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 63 C. 575, 576 (referred to); 65 C. 273, 274, 3 P. 889, 890 (con- strued); 67 C. 610, 613, 8 P. 440, 442 (construed and applied); 75 C. 558, 561, 17 P. 687, 688 (referred to); 76 C. 212, 214, 9 A. S. 199, 18 P. 248, 250 (construed); 119 C. 442, 51 P. 689, 690 (referred to); 120 C. 228, 229, 231, 52 P. 496 (construed), revers- ing commissioners' decision, 47 P. 684; 134 C. 324, 328, 66 P. 311 (applied); 152 C. 31, 40, 91 P. 983 (not applicable). As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. § 1769, note par. 9, § 1786 and note. Contract for sale of article to be manufactured and actual bargain and sale. — See Kerr's Cyc. C. G. § 1721 and note. Damages for breach of warranty of equality for special pur- poses.- — See Kerr's Cyc. C. C. § 3314 and note. Evidence that similar machines do good work. — See Kerr's Cyc. C. C. § 1786 and note par. 8. Implied warranty of article manufactured and sold for par- ticular purpose.— See 6 A. D. 115-117; 54 A. D. 145; 22 L. 189-193. Rebuttal of implied warranty is permitted. — ^See Kerr's Cyc. C. C. § 1765 and note par. 14. Satisfactoriness to buyer is necessary, when. — See Kerr's Cyc. C. C. § 1763 and note par. 24. 973 §§ 1771-1773 CIVIL CODE. [Div.III.Pt.IV. §1771. WHEN THING CANNOT BE EXAMINED BY BUYER. One who sells or agrees to sell merchandise inac- cessible to the examination of the buyer, thereby warrants that it is sound and merchantable. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 65 C. "?" 275, 3 P. 889, 890 (construed); 76 C. 212, 214, 9 A. S. 199, 18 P. 248, 250 (referred to); 119 C. 442, 51 P. 689, 690 (referred to); 145 C. 272, 280, 78 P. 722 (construed and held inapplicable); 147 C. 313, 327, 81 P. 964 (cited in dis. op.). As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. § 1786 and note. Horse feed bought without inspection. — See Kerr's Cyc. C. C. § 1767 and note par. 4. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. Rescission upon discovery of defects, etc. — See 86 A. D. 312- 314. Sale of goods by description. — See Kerr's Cyc. C. C. § 1767 and note par. 5. § 1772. TRADE-MARKS. One who sells or agrees to sell any article to which there is affixed or attached a trade-mark, thereby warrants that mark to be genuine and lawfully used. History: Enacted March 21, 1872, taken from Stats. 25 and 26 Vict. ch. 88, § 19. As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission. — Sea Kerr's Cyc. C. C. § 1786 and note. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. § 1773. OTHER MARKS. One who sells or agrees to sell any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, or the place where it was, in whole or in part, produced, manufac- tured, or prepared, thereby warrants the truth thereof. History: Enacted March 21, 1872. See Stats. 25 and 26, Vict, ch. 88. 974 Tit.I,ch.II,art.III.] WRITTEN INSTRUMENT, OF. §§ 1774, 1775 As to many miscellaneous matters as to sales, see note § 1721, ante. , Breach of warranty as ground for rescission. — See Kerr s Cyc. C. C. § 1786 and note. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. §1774. WARRANTY 0> SALE OF WRITTEN INSTRU- MENT. One who sells or agrees to sell an instrument pur- porting to bind any one to the performance of an act, thereby warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause. History: Enacted March 21, 1872; amended March 30, 1874, Code Am'dts. 1873-4, p. 244. Originally this section contained a further provision, which was stricken out in 1874, that seller warrants instrument to be what it purports to be and to be binding according to its purport upon all parties thereto. See 103 C. 319, 324, 42 A. S. 117, 37 P. 401. See Kerr's Cyc. C. C. for 9 pars, annotation. 86 C. 184, 188, 24 P. 1005, 1006 (construed); 92 C. 117, 124, 127. 128 28 P. 98, 99, 100 (construed); 96 C. 160, 161, 31 P. 14 (con- strued); 103 C. 319, 324. 42 A. S. 117, 37 P. 401 (cited with §3116); 139 C. 564, 585, 96 A. S. 169, 73 P. 456, 457 (construed and applied). As to liability of indorser of negotiable instrument, see Kerr s Cyc. C. C. § 3116 and note. As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission.— See Kerr s Cyc. C. C. § 1786 and note. Implied warranty on sale of corporate stock.— See 53 L. 153-156. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. §1775. WARRANTY OF PROVISIONS FOR DOMESTIC USE. 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. History: Enacted March 21, 1872. 975 §§1776,1777 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 7 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. As to sale of unwholesome food for stock, see Kerr's Cyc. C. C. § 1708, note pars. 10-18. As to sale of unwholesome provisions for food, see Kerr's Cyc. C. C. § 43, note pars. 64-86. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. g "'VSfi and note. Horse feed bought without inspection. — See Kerr's Cyc. C. C. § 1767 and note par. 4. Provisions sold for domestic use impliedly warranted. — See 43 A. D. 680, 681. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. § 1776. WARRANTY ON SALE OF GOOD-WILL. One who sells the good-will of a business thereby warrants that he will not endeavor to draw off any of the customers. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 71 C. 142, 148, 11 P. 856, 859 (construed and applied); 114 C. 635, 665, 667, 46 P. 742, 34 L. 265 (cited); 124 C. 429, 432, 71 A. S. 94, 57 P. 468, 46 L. 142 (cited). As to many miscellaneous matters as to sales, see note § 1721, ante. Definition of good-will. — See Kerr's Cyc. C. C. § 992 and note. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. Remedies for breach. — See Kerr's Cyc. C. C. §,1786 and note. Rescission of sale unnecessary to entitle buyer to damages for breach of warranty. — See 71 C. 142, 148, 11 P. 856. Transfer of good-will. — See Kerr's Cyc. C. C. § 993 and note pars. 45-53. §1777. WARRANTY UPON JUDICIAL SALE. Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. 976 Tit.I,ch.II,art.III.] GENERAL WARRANTY. § 1778 As to title which purchaser is entitled to, see Kerr's Cyc. C. C. § 1731 and note. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. § 1786 and note. Rebuttal of implied warranty is permitted. — See Kerr's Cyc. C. C. § 1765 and note par. 14. Void and voidable sales. — See 47 A. S. 707. § 1778. EFFECT OF GENERAL WARRANTY. A general warranty does not extend to defects inconsistent therewith of which the buyer was then aware, or which were then easily discernible by him without the exercise of peculiar skill; but it extends to all other defects. History: Enacted March 21, 1872. 4 C. A. 249, 255, 87 P. 410 (inapplicable). As to many miscellaneous matters as to sales, see note § 1721, ante. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 1778, note. 977 § 1784 CIVIL, CODE. [Div.III,Pt.IV. CHAPTER III. RIGHTS AND OBLIGATIONS OF THE BUYER. § 1784. Price, when to be paid. § 1785. Right to inspect goods. " i""r>. Rights in case of breach of warranty. § 1784. PRICE, WHEX TO BE PAID. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 39 pars, annotation. 76 C. 212, 215, 9 A. S. 199, 18 P. 248, 250 (cited); 82 C. 474, 479, 23 P. 118, 119 (construed and applied). As to check not being tenderable, see Kerr's Cyc. C. C. § 1485 and note pars. 13-16. As to many miscellaneous matters as to sales, see note § 1721, ante. Acceptance necessary — Contract for sale of article to be manufactured. — See Kerr's Cyc. C. C. § 1770 and note par. 2. Agent may bring action for price. — See Kerr's Cyc. C. C. § 1749 and note. Breach of warranty — Rights of buyer in case of. — See Kerr's Cyc. C. C. § 1786 and note. Conditional sale. — See Kerr's Cyc. C. C. § 1753 and note par. 14. Counterclaim upon breach of warranty in action for price. — See Kerr's Cyc. C. C. § 1780 and note. Culling by buyer not permissible. — See Kerr's Cyc. C. C. § 1753 and note par. 16. Damage for breach of contract by buyer. — See Kerr's Cyc. C. C. §§3310, 3311 and notes. Depositary — When seller must act as. — See Kerr's Cyc. C. C. § 1748 and note. Excessive quantity delivered. — See Kerr's Cyc. C. C. § 1753 and note pars. 27-29. Forfeiture of instalments paid. — See Kerr's Cyc. C. C. §1749 and note. Frauds, statute of — Delivery and acceptance required to satisfy.— See Kerr's Cyc. C. C. § 1624 and note. Immediate payment at time of making contract not essential to validity of sale. — See Kerr's Cyc. C. C. § 1721 and note. Inspection of goods before acceptance. — See Kerr's Cyc. C. C. § 1785 and note. 978 Tit.I,ch.IIL] RIGHT TO INSPECT. §§ 1785, 1786 Lien of seller for price.— See Kerr's Cyc. C. C. § 3049 and note. Mutual and independent stipulations to deliver and make payment. — See Kerr's Cyc. C. C. § 1753 and note pars. 41-43. Receipt and acceptance of goods distinguishable. — See Kerr's Cyc. C. C. § 1753 and note par. 56. Recovery back of payment made. — See Kerr's Cyc. C. C. § 1749 and note. Remedies of seller upon non-payment of price. — See Kerr's Cyc. C. C. § 1749 and note. Resumption of possession by seller upon non-payment of instalment. — See Kerr's Cyc. C. C. § 1749 and note. Stoppage in transitu. — See Kerr's Cyc. C. C. §§ 3076-3080 and notes. Transportation — Expense of. — See Kerr's Cyc. C. C. § 1755 and note. §1785. RIGHT TO INSPECT GOODS. On an agreement for sale, with warranty, 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. Breach of warranty as ground for rescission. — See Kerr's Cyc. C. C. § 1786 and note. § 1786. RIGHTS IN CASE OF BREACH OF WARRANTY. The breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, unless the warranty was intended by the parties to operate as a condi- tion. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 27 pars, annotation. 96 C. 84, 92, 31 A. S. 181, 30 P. 1016, 1019, 21 L. 406 (applied- breach of warranty entitles buyer to rescind). As to many miscellaneous matters as to sales, see note § 1721, ante. Acceptance of goods — Effect of. — See Kerr's Cyc. C. C. § 1784 and note pars. 18, 19. Damages for breach of warranty of quality. — See Kerr's Cyc. C. C. § 3313 and note. 979 § 1786 CIVIL CODE. [Div.III.Pt.IV. Expert testimony as to sufficiency of machine warranted. — See Kerr's Cyc. C. C. § 1770 and note pars. 10, 11. Failure of title as defense in action for price. — See Kerr's Cyc. C. C. § 1765 and note par. 11. Necessity to allege express warranty. — See Kerr's Cyc. C. C. § 1764 and note par. 3. Remedies of buyer for breach of warranty. — See 54 A. D. 146; 16 A. S. 759. Rescission of c-.n tract.— See Kerr's Cyc. C. C. §§ 1688-1691 and notes. Rescission of contract for breach of warranty. — See 4'L.. 370. Yielding possession upon failure of title. — See Kerr's Cyc. C. C. § 1765 and note par. 9. 980 Tit.I.ch.IV.] AUCTION, SALE AT. §§ 1792-1794 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. SALE BY AUCTION, WHAT. A sale by auction is a sale by public outcry to the highest bidder on the spot. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. Auctioneers — As to ag-ency of. — See Kerr's Cyc. C. C. §§ 2362, 2363 and notes. Same — Regulations concerning. — See Kerr's Cyc. Pol. C. §§ 3284-3324 and notes. Same — Unlawfully acting as. — See Kerr's Cyc. Pen. C. § 436 and note. Auctions — General provisions governing. — See 96 A. D. 264-272. Mock auctions — Penal provisions concerning. — See Kerr's Cyc. Pen. C. § 535 and note. Withdrawal of property from auction sale. — See 57 L. 784-789. § 1793. SALE, WHEN COMPLETE. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. As to opening biddings, see 17 Encyc. L. 1006-1010. § 1794. WITHDRAWAL OF BID. Until the announcement mentioned in the last section has been made, any bidder may 981 §§ 1795-1797 CIVIL CODE. [Div.III.Pt.IV. withdraw his bid, if he does so in a manner reasonably suffi- cient to bring it to the notice of the auctioneer. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. § 1795. SALE UNDER WRITTEN CONDITIONS. When a sale by auction is made upon written or printed conditions, such conditions cannot be modified by any oral declaration of the auctioneer, except so far as they are for his own benefit. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. §1796. RIGHTS OF BUYER UPON SALE WITHOUT RESERVE. If, at a sale by auction, the auctioneer, having authority to do so, publicly announces that- the sale will be without reserve, or makes any announcement equivalent thereto, the highest bidder in good faith has an absolute right to the completion of the sale to him; and, upon such a sale, bids by the seller, or any agent for him, are void. Hi.story: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. Responsible bidders, who are, and how to enforce their rights. — See 50 A. S. 489-497. § 1797. BY BIDDING. The employment by a seller of any person to bid at a sale by auction, without the knowledge 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. History: Enacted March 21, 1872. 982 Tit.I,ch.IV.] MEMORANDUM OF SALE. § 1798 See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. Effect of preventing or checking bids upon validity of sale at auction. — See 20 L. 545-553. Right of auctioneer or officer conducting sale to bid. — See 20 L. 503-508. Stifling competition — Associations of persons employing one to bid for all. — See 96 A. D. 268-270. § 1798. AUCTIONEER'S MEMORANDUM OF SALE. When property is sold by auction, an entry made by the auctioneer, in his sale book, 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 buyer, binds both the par-, ties in the same manner as if made by themselves. History: Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 244. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to sales, see note § 1721, ante. Auctioneer's authority to bind parties by memorandum. — See Kerr's Cyc. C. C. § 2363 and note. Cognate section. — Substantially same provision is contained in Kerr's Cyc. C. C. § 1624, subd. 4, in note to which, pars. 212- 219, will be found full treatment of subject. Statute must be complied with. — See Kerr's Cyc. C. C. § 1793 and note par. 2. 983 § 1804 CIVIL CODE. [Div.III.Pt.IV. TITLE II. EXCHANGE. § 1804. Exchange, what. § 1805. Form of contract. § ISOfi Parties have rights and obligations of sellers and buyers. § 1807. Wairaniy of money. § 1804. EXCHANGE, WHAT. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 71 C. 290, 292, 12 P. 172, 173 (construed with § 1806 — contract for exchange of land is contract of sale). EXCHANGE OF PROPERTY. Definition of. — See 21 Encyc. L. 569; 3 W. & P. 2546. Distinguished from a sale. — See 94 A. S. 227; 21 Encyc. L. 570; 7 W. & P. 6300. Nature of contract of, in general, see 21 Cent. Dig. col. 203 §§1, 2; 8 Decen. Dig. p. 1609, § 1. Personal property, of — In general. — See 21 Encyc. L. 575. Same — Construction of contract. — See 21 Cent. Dig. col. 224, §19; 8 Decen. Dig. p. 1622, §§9, 10. Same — Performance of contract. — See 21 Cent. Dig. col. 226, § 21. Same — Transfer of title as between parties. — See 21 Cent. Dig. col. 2226, § 23. Same — Remedies of parties. — See 21 Encyc. L. 576-578. Same — Rescission. — See 21 Cent. Dig. col. 224, §§20, 20 14; 8 Decen. Dig. p. 1622, § 11. Same — Warranties. — See 21 Cent. Dig. col. 227, §23; 8 Decen. Dig. p. 1623, § 12. Power to sell personal property in agent's possession, as implying power to exchange. — See 10 L. N. S. 1118. Real property of — Construction of contract. — See 21 Cent. Dig. col. 206, § 4; 8 Decen. Dig. p. 1613, § 4. Same — Performance of breach of contract. — See 21 Cent. Dig. col. 215, §11; 8 Decen. Dig. p. 1615, §6. Same — Remedies of parties. — See 21 Cent. Dig. col. 218, §§ IS- IS; 8 Decen. Dig. p. 1617, §§8-8(5). Same — Requisites and validity of. — See 21 Cent. Dig. col. 205, §3; 8 Decen. Dig. p. 1610, §§3-3(2); 21 Encyc. L. 571-574. 984 1 Tit. II.] CONTRACT— RIGHTS. §§ 180.5-1807 Same — Rescission of grounds for. — See 21 Cent. Dig. col. 208, §§5-10. Same — Rights and liabilities of parties. — See 21 Cent. Dig. col. 215, §§12-14; 8 Decen. Dig. p. 1116, §7. Same — Verbal contract for, enforceability of. — See 5 L. 245. Rights, liabilities and remedies of parties. — See 21 Cent. Dig. col. 228, §§25-29; 8 Decen. Dig. p. 1623, §13-13(5). Same — ^Conditional exchange. — See 21 Cent. Dig. col. 234, § 30. § 1805. FORM OF CONTRACT. The provisions of section seventeen hundred and thirty-nine apply to all exchanges in which the value of the thing to be given by either party is two hundred dollars or more. HLstory: Enacted March 21, 1872. As to difference between exchange and sale of property, see 94 A. S. 227. As to exchange of property generally, see note § 1804, ante. As to part performance taking contract out of statute of frauds, see Kerr's Cyc. C. C. § 1624, note. As to requisites of contract of exchange and authority to sign, see Kerr's C5'c. C. C. § 1624, note. As to statute of frauds and necessity of contract being in writing, see Kerr's Cyc. C. C. § 1624, note. § 1806. PARTIES HAVE RIGHTS AND OBLIGATIONS OF SELLERS AND BUYERS. The provisions of the title on sale apply to exchanges. Each party has the rights and obliga- tions of a seller as to the thing which he gives, and of a buyer as to that which he takes. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for il pars, annotation. 71 C. 290, 292, 293, 12 P. 172, 173 (construed with § 1804 — con- tract for exchange of land is contract of sale); 74 C. 376, 379. 16 P. 194 (applied). As to exchange of property generally, see note § 1804, ante. §1807. WARRANTY OF MONEY. On an exchange of money, each party thereby warrants the genuineness of the money given by him. History: Enacted March 21, 1872. 985 § 1813 CIVIL CODE. [Div.III.Pt.IV. TITLE III. DEPOSIT. Chapter I. Deposit in General, §§ 1813-1828. II. Deposit for Keeping, §§ 1833-1872. ill. L'eposit for Exchange, § 1878. CHAPTER I. DEPOSIT IN GENERAL. Article I. Nature and Creation of Deposit, §§ 1813-1818. II. Obligations of the Depositary, §§ 1822-1828. ARTICLE I. NATURE AND CREATION OF DEPOSIT. § 1813. Deposit, kinds of. § 1814. Voluntary deposit, how made. § 1815. Involuntary deposit, how made. § 1816. Same. [Duty of involuntary depositary.] § 1817. Deposit for safe-keeping, what. § 1818. Deposit for exchange, what. § 1813. DEPOSIT, KINDS OF. A deposit may be voluntary or involuntary; and for safe-keeping or for exchange. History: Enacted March 21, 1872. As to common carriers, see Kerr's Cyc. C. C. §§ 2805 et seq. and notes. As to deposit for exchange, see Kerr's Cyc. C. C. § 1858 and note. As to deposit for hiring, see Kerr's Cyc. C. C. §§ 1851 et seq. and notes. As to deposit for keeping, see Kerr's Cyc. C. C. §§ 1833 et seq. and notes. As to gratuitous deposits and incidents, see Kerr's Cyc. C. C. §§ 1844 et seq. and notes. As to hiring, see Kerr's Cyc. C. C. §§ 1925 et seq. and notes. 986 il Tit.III,ch.I,art.I.] INVOLUNTARY DEPOSIT. §§1814-1816 As to innkeepers, see Kerr's Cyc. C. C. §§ 1859 et seq. and notes. As to loan for exchange, see Kerr's Cyc. C. C. § 1902 and note. As to loan for use, see Kerr's Cyc. C. C. §§ 1884 et seq. and notes. As to loan of money, see post § 1912. As to money deposited with sheriff as indemnity, see Kerr's Cyc. C. C. § 1318, note par. 1. As to pledge, see Kerr's Cyc. C. C. §§ 2986 et seq. and notes. As to trover by bailor, see 1 A. D. 587. § 1814. VOLUNTARY DEPOSIT, HOW MADE. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to finder of lost article, see Kerr's Cyc. C. C. §§ 1864 et seq. and notes; 1 L. N. S. 477. As to obligations of depositary, see Kerr's Cyc. C. C. §§ 1822 et seq. and notes. § 1815. INVOLUNTARY DEPOSIT, HOW MADE. An invol- untary deposit is made: 1. By the accidental leaving or placing of personal property in the possession of any person, without negligence on the part of its owner; or, 2. In cases of fire, shipwreck, inundation, insurrection, riot, or like extraordinary emergencies, by the owner of personal property committing it, out of necessity, to the care of any person. History: Enacted March 21, 1872. 58 C. 115, 122 (applied). As to degree of care requisite, see post § 1846. As to involuntary deposit being gratuitous, see post § 1845. As to involuntary deposit must be accepted, see § 1816. As to when duties of depositary cease, see post § 1847. §1816. SAME. [DUTY OF INVOLUNTARY DEPOSIT- ARY.] The person with whom a thing is deposited in the 987 §§1817,1818 CIVIL CODE. [Div.III.Pt.IV. manner described in tlie last section is bound to take charge of it, if able to do so. History: Enacted March 21, 1872. § 1817. DEPOSIT FOR SAFE KEEPING, WHAT. A deposit for keeping is one in which the depositary is bound to return the i'^pritical thing deposited. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to deposit for keeping, see Kerr's Cyc. C. C. §§ 1833 et seq. and notes. § 1818. DEPOSIT FOR EXCHANGE, WHAT. A deposit for exchange is one in which the depositary is only bound to return a thing corresponding in kind to that which is depos- ited. History: Enacted March 21, .1872. As to deposit for exchange transferring title, see post § 1878. As to loan for exchange, see Kerr's Cyc. C. C. §§ 1902 et seq. and notes. For Cominissioners' comment on tliis section, see Kerr's Cyc. C. C. § 1818, note. 988 Tit.TIT,ch.I,art.II.] DELIVERY-DEMAND. §§ 1822. 1823 ARTICLE II. 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, etc. 8 1828. Joint deposit by two or more persons. § 1822. DEPOSITARY MUST DELIVER ON DEMAND. 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 required by section eighteen hun- dred and twenty-five. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 93 C 283 287, 28 P. 1045, 1046 (applied); 113 C. 97, 102, 45 P. 177 (applied); 151 C. 479, 482, 91 P. 152 (applied— duty of bailee). As to degree of care required of depositary for hiring, see Kerr's Cyc. C. C. § 1852 and note. As to lien of innkeepers, see Kerr's Cyc. C. C. §U861 et seq. and notes. §1823. NO OBLIGATION TO DELIVER ^VITHOUT DE- MAND. A depositary is not bound to deliver a thing depos- ited without demand, even where the deposit is made for a specified time. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 113 C. 97, 102, 45 P. 177 (applied); 114 C. 612, 46 P. 599 (applied without citation). t-^t-v-c As to obligation to deliver on demand generally, see Kerr s Cyc. C. C. § 1822 and note. 989 §§ 1824-1827 CIVIL CODE. [Div.III.Pt.IV. § 1824. PLACE OF DELIVERY. A depositary must deliver the thing deposited at his residence or place of business, as may be most convenient for him. History: Enacted March 21, 1872. 58 C. 115, 122 (applied). As to delivery in sales, see Kerr's Cyc. C. C. §§ 1753 et seq. and notes. As to lendei'c liability for defects of articles borrowed, see Kerr's Cyc. C. C. § 1894 and note. As to whether depositary would be considered to have lien, reimbursements or indemnity under this section, compare §§ 1839, 3051. §1825. NOTICE TO OWNER OF ADVERSE CLAIM. A depositary must give prompt notice to the person for whose benefit the deposit was made, of any proceedings taken adversely to his interest in the thing deposited, which may tend to excuse the depositary from delivering the thing to him. History: Enacted March 21, 1872. 93 C. 283, 287, 28 P. 1045, 1046 (applied). As to liability of one receiving property from one having no title thereto, see Kerr's Cyc. C. C. § 1825, note par. 2. §1826. NOTICE TO OWNER OF THING WRONGFULLY DETAINED. A depositary, who believes that a thing depos- ited with him is wrongfully detained from its true owner, may give him notice of the deposit; and if within a reason- able time afterwards he does not claim it, and sufficiently 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 depositor, or assuming, in good faith, a new obligation changing his position in respect to the thing, to his prejudice. History: Enacted March 21, 1872. §1827. DELIVERY OF THING OWNED JOINTLY, ETC. If a thing deposited is owned jointly or in common by per- 990 I Tit.III,ch.I,art.II.] JOINT deposits. §1828 sons who cannot agree upon the manner of its delivery, the depositary may deliver to each his proper share thereof, if it can be done without injury to the thing. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. § 1828. JOINT DEPOSITS BY TWO OR MORE PERSONS. When a deposit is made in the name of two or more persons, deliverable or payable to either or to their survivor or sur- vivors, such deposit or any part thereof, or increase thereof, may be delivered or paid to either of said persons or to the survivor or survivors in due course of business. History: Enacted March 4, 1907, Stats, and Amdts. 1907, p. 92, Kerr's Stats, and Amdts. 1906-7, p. 426. 991 §1833 CIVIL, CODE. [Div.III.Pt.IV. CHAPTER II. DEPOSIT FOR KEEPING. Article I. General Provisions, §§ 1833-1840. II. Gratuitous Deposit, §§ 1844-1847. 111. Storage, §§ 1851-1857. Ilia. Warehousemen, §§ 1858-1858f. 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. DEPOSITOR MUST INDEMNIFY DEPOSITARY. A depositor must indemnify the depositary: 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 undertaking. History: Enacted March 21, 1872. As to lender's liability for recalling loan, see Kerr's Cyc. C. C. § 1894 and note. For Commissioners' comment on this sect-ion, see Kerr's Cyc. C. C. § 1833, note. 992 Tit.III,ch.II,art.I.] USE, damage, injury. §§ 1834-1838 § 1834. OBLIGATION OF DEPOSITARY OF ANIMALS. A depositary of living animals must provide them with suitable food and shelter, and treat them kindly. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. As to lien for keepers of live stock, see Kerr's Cyc. C. C. § 3051 and note. As to lien for services at common law, see 37 A. D. 522. §1835. OBLIGATIONS AS TO USE OF THING DEPOS- ITED. A depositary may not use the thing deposited, or per- mit it to be used, for any purpose, without the consent of the depositor. He may not, if it is purposely fastened by the depositor, open it without the consent of the latter, except in case of necessity. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 94 C. 347, 350, 29 P. 869 (applied); 112 C. 598, 601, 53 A. S. 228, 44 P. 1063, 32 L. 479 (applied). As to hiring-, see Kerr's Cyc. C. C. §§ 1925 et seq. and notes. §1836. LIABILITY FOR DAMAGE ARISING FROM WRONGFUL USE. A depositary is liable for any damage happening to the thing deposited, during his wrongful use thereof, unless such damage must inevitably have happened though the property had not been thus used. History: Enacted March 21, 1872. §1837. SALE OF THING IN DANGER OF PERISHING. If a thing deposited is in actual danger of perishing before instructions can be obtained from the depositor, the depositary may sell it for the best price obtainable, and retain the pro- ceeds as a deposit, giving immediate notice of his proceedings to the depositor. History: Enacted March 21, 1872. § 1838. INJURY TO, OR LOSS OF THING DEPOSITED. If a thing is lost or injured during its deposit, and the depos- Kerr's C. C— 32 993 §§ 1839, 1840 CIVIL CODE. [Div.III,Pt.IV. itary refuses to inform the depositor of the circumstances under which the loss or injury occurred, so far as he has information concerning them, or wilfully misrepresents the circumstances to him, the depositary is presumed to have wilfully, or by gross negligence, permitted the loss or injury to occur. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 53 C. 735, 736 (construed). § 1839. SEEVICE EENDERED BY DEPOSITARY. So far as any service is rendered by a depositary, or required from him, his duties and liabilities are prescribed by the title on employment and service. History: Enacted March 21, 1872. As to employment, etc., see Kerr's Cyc. C. C. §§ 1965 et seq. and notes. As to service, see Kerr's Cyc. C. C. §§ 1965 et seq. and notes. § 1840. EXTEIVT OF HIS LIABILITY FOR NEGLIGENCE. The liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 244. 133 C. 534, 538, 85 A. S. 221, 65 P. 1099 (construed). For construction of above section, see Kerr's Cyc. C. C. § 1840, note par. 2. 994 Tit.III,ch.II,art.II.] GRATUITOUS DEPOSITS. §§1844-1847 ARTICLE II. GRATUITOUS DEPOSIT. § 1844. Gratuitous deposit, what. 8 1845 Nature of involuntary deposit. § 1846. Degree of care required of gratuitous depositary. § 1847. His duties cease, when. §18M. GRATUITOUS DEPOSIT, >YHAT. Gratuitous deposit is a deposit for which the depositary receives no con- sideration beyond the mere possession of the thing deposited. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 103 C. 377, 379, 37 P. 179 (cited). -jq \ S As to liability of gratuitous bailees, see 23 A. D. 3-, S>> a. ». 779. § 1845. > ATUEE OF INVOLUNTARY DEPOSIT. An invol- untary deposit is gratuitous, the depositary being entitled to no reward. History: Enacted March 21, 1872. As to definition of involuntary deposit, see ante §1815; 4 W. & P. 3762. § 1846. DEGREE OF CARE REQUIRED OF GRATUITOUS DEPOSITARY. A gratuitous depositary must use, at least, slight care for the preservation of the thing deposited. History: Enacted March 21, 1872. § 1847. HIS DUTIES CEASE, WHEN. The duties of a gra- tuitous depositary cease: 1 Upon his restoring the thing deposited to its owner; or, 2 Upon his giring reasonable notice to the owner to reniOTC it, and the owner failing to do so within a reasonable time. But an involuntary depositary, under subdivision two of sec- tion eighteen hundred and fifteen, cannot give such notice until the emergency which gave rise to the deposit is past. History: Enacted March 21, 1872. 995 §§ 1851, 1852 CIVIL CODE. [Div.III.Pt.IV. ARTICLE III. STORAGE. § 1851. Deposit for hire. § 1852. Degree of care required of depositary for hire. § 1853. Rate of compensation for fraction of a week, etc. § 1854. Termination of deposit. § 1855. Same. [On payment of charges to become due.] § 1856. Lien for storage charges [and money advanced]. § 1857. Storage property to be sold. § 1851. DEPOSIT FOR HIRE. A deposit not gratuitous is called storage. The depositary in such case is called a depos- itary for hire. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 120 C. 596, 598, 52 P. 847 (cited). As to liiring in genera), see 'Kerr's Cyc. C. C. § 1925 and note; also note § 1925, post. § 1852. DEGREE OF CARE REQUIRED OF DEPOSITARY FOR HIRE. A depositary for hire must use at least ordinary care for the preservation of the thing deposited. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 21 pars, annotation. 56 C. 484, 486 (applied); 113 C. 97, 104, 45 P. 177 (applied); 120 C. 596, 598, 52 P. 847 (cited). As to care required of bankers acting as bailees, see 38 A. S. 773, 778. As to duties and liability of warehouseman for cold storage, see 90 A. S. 295. As to legislative control over business of warehouseman; receipts; obligation to return the thing bailed; assignment and sale of property; liability for negligence, see 7 L. 529. As to liability of common carriers, see Kerr's Cyc. C. C. §§ 2100, 2114, 2194 and notes. As to liability of common carriers for ^oods left with them or stored with them, see Kerr's Cyc. C. C. §§ 2085 et seq. As to liability of common carriers as warehousemen, see Kerr's Cyc. C. C. §§ 2120, 2121. 996 Tit.III,ch.II,art.III.] COMPENSATION. §§ 1853. 1856 AS to liability of innkeepers, see Kerr's Cyc. C a §1859^ As to liability of safe deposit companies, see 72 A. b. zub. As to liability of warehouseman, see 24 A. D. 145. 8 1853 RATE OF COMPENSATION FOR FRACTION OF A WEEK ETC. In the absence of a different agreement 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. Hi!st«»ry: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. § 1854 TERMINATION OF DEPOSIT. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. §1855. SAME. [ON PAYMENT OF CHARGES TO BE- COME DUE.] Notwithstanding an agreement respecting the length of time during which a deposit is to continue, it may be terminated by the depositor on paying all that would become due to the depositary in case of the deposit so con- tinuing. History: Enacted March 21, 1S(^. §1856. LIEN FOR STORAGE CHARGES [AND MONEY ADVANCED]. A depositary for hire has a lien for storage charges and for advances and insurance incurred at the request of the bailor, and for money necessarily expended m and about the care, preservation and keeping of the property stored and he also has a lien for money advanced at the request of the bailor, to discharge a prior lien, and for the expenses of a sale where default has been made in satisfying a valid lien. The rights of the depositary for hire to such lien are regulated by the title on liens. 997 § 1857 CIVIL CODE. [Div.III.Pt.IV. History: Enacted March 31, 1891, Stats, and Amdts. 1891, p. 470; amended April 19, 1909, Stats, and Amdts. 1909, p. 1001. 125 C. 593, 595, 58 P. 175 (applied); 125 C. 596, 599, 58 P. 186 (applied — goods stored in warehouse). As to factors and factors' liens, see Kerr's Cyc. C. C. §§ 2367 et seq., § 3053 and notes. As to lien for storage, pasturage, living, service, etc., see Kerr's Cyc. C. C. § 3051 and note. § 1857. STORAGE PEOPERTY TO BE SOLD. If from any cause other than want of ordinary care and diligence on his part, a depositary for hire is unable to deliver perishable property, baggage, or luggage received by him for storage, or to collect his charges for storage due thereon, he may cause such property to be sold, in open market, to satisfy his lien for storage; provided, that no property except perish- able property shall be sold, under the provisions of this sec- tion, upon which storage charges shall not be due and unpaid for one year at the time of such sale. History: Enacted March 31, 1891, Stats, and Amdts. 1891, p. 470. See Kerr's Cyc. C. C. for 4 pars, annotation. 125 C. 593, 595, 599, 58 P. 175 (construed). As to sales of property stored to pay liens thereon, except perishable goods and baggage or luggage, see Kerr's Cyc. C. C. §§ 2827, 2898, and 3000 to 3011 and notes. 998 Tit.III.ch.II,art.IIIa.] WAREHOUSE RECEIPTS. §1858 ARTICLE Ilia. WAREHOUSEMEN. [This article, including §§ 1858-1858f was ^^^^f X^'stL^'Za mission as a part of article III. Act of March 16, 1901, Stats, and A™ 1900-l' PP. 409-411. held — "^-^^-^^l^^^.^J^^^/'^el ante- Commissioner Davis procured a re-enactment of these sec trons'Jmproperly designating them as "Chapter IHa—March 21, 1905, Stats, and Amdts. 1905, pp. 611-613.] 5 1858 Warehouse receipts, when must not be issued. 1858a. Property not to be removed without consent m writing. S 1858b Warehouse receipts, classification and effect of. n858c' indorsement on negotiable receipt of property delivered. I 1858d. Non-negotiable receipts and their effect. § 1858e. Liability for loss by fire. § 1858f. Penalties and liabilities. § 1858. WAREHOUSE RECEIPTS, WHE!S^ MIST >0T BE ISSUED. A warehouseman, wharfinger, or other person doing a storage business must not issue any receipt or voucher for any merchandise, grain, or other product or thing of value, to any person purporting to be the owner thereof, nor to any person as security for any indebtedness or for the perform- ance of any obligation, unless such merchandise, grain, or other product, commodity, or thing has been, in good faith, received by such warehouseman, wharfinger, or other person, and is in his store or under his control at the time of issuing his receipt; nor must any second receipt for any such prop- erty be issued while a former receipt for any part thereof is outstanding and uncanceled. History: Enacted March 21, 1905: see introductory note. 1 C. A. 488, 491 (erroneously cited as "p. 799"), 82 P. 686 (same ^'IT^to whether warehouseman's receipt is conclusive against him, see 100 A. D. 243. 244. T'.,-r-« Cvc C C As to who may issue warehouse receipts, see Keirs C>c. C. c. § 1858. note. 999 §§ 1858a-1858c CIVIL CODE. [Div.III,Pt.IV. § 1858a. PROPERTY NOT TO BE REMOVED WITHOUT CONSENT IN WRITING. No warehouseman, wharfinger, or other person must sell or encumber, ship, transfer, or remove beyond his immediate control any property for which a receipt has been given, without the consent in writing of the person holding such receipt plainly indorsed thereon in ink. Hi8tur> : i;r\.i;'t;d March 21, 1905; see introductory note. See Kerr's Cyc. C. C. for 2 pars, annotation. § 1858b. WAREHOUSE RECEIPTS, CLASSIFICATION AND EFFECT OF. Warehouse receipts for property stored are of two classes: first, transferable or negotiable; and sec- ond, non-transferable or non-negotiable. Under the first of these classes the property is transferable by indorsement of the party to whose order such receipt was issued, and such indorsement is a valid transfer of the property represented by the receipt, and may be in blank or to the order of another. All warehouse receipts must distinctly state on their face for what they are issued and its brands and distinguishing marks and the rate of storage per month or season, and, in the case of grain, the kind, the number of sacks, and pounds. If a receipt is not negotiable, it must have printed across its face, in red ink, in bold, distinct letters, the word "Non- negotiable." History: Enacted March 21, 1905; see introductory note. See Kerr's Cyc. C. C. for 15 pars, annotation. As to effect on warehouseman of recitals in receipts, see 19 L. 302. As to receipts of warehouseman, whether conclusive as to question of quality, see 100 A. D. 243. As to warehouse receipts, their transfer and negotiability, see 84 A. D. 752, 754, 3 A. S. 200. As to warehouseman receipts in general, see 7 L. 529. § 1858c. INDORSEMENT ON NEGOTIABLE RECEIPT OF PROPERTY DELIVERED. If a negotiable receipt is issued for any property, neither the person issuing it nor any other person into whose care or control the property comes must deliver any part thereof without indorsing on the back of the receipt in ink, the amount and date of the delivery; nor can 1000 Tit.III,ch.II,art.IIIa.] LOSS by fire. §§ I858d-1858f he be allowed to make any offset, claim, or demand other than is expressed on the face of the receipt, when called upon to deliver any property for which it was issued. History: Enacted March 21, 1905; see introductory note. As to non-negotiable warehouse receipts, see Kerr's Cyc. C. C. § 1858c, note. § 1858d. NON-NEGOTIABLE RECEIPTS AND THEIR EF- FECT. If a non-negotiable receipt is issued for any prop- erty, neither the person issuing nor any other person in whose care or control the property comes must deliver any part thereof, except upon the written order of the person to whom the receipt was issued. History: Enacted March 21, 1905; see introductory note. § 1858e. LIABILITY FOR LOSS BY FIRE. No warehouse- man or other person doing a general storage business is responsible for any loss or damage to property by fire while in his custody, if he exercises reasonable care and diligence for its protection and preservation. History: Enacted Marcli 21, 1905; see introductory note. See Kerr's Cyc. C. C. for 3 pars, annotation. Act of God, as to wliat constitutes, see Kerr's Cyc. C. C. §§1511, 2194 and notes; 1 W. & P. 118-126. §1858f. PEJfALTIES AND LIABILITIES. Every ware- houseman, wharfinger, or other person who violates any of the provisions of section eighteen hundred and fifty-eight to eighteen hundi'ed and fifty-eight e, inclusive; is guilty of a felony, and, upon conviction thereof, may be fined in a sum not exceeding five thousand dollars, or imprisoned in the state prison not exceeding five years, or both. He is also liable to any person aggrieved by such violation for all dam- ages, immediate or consequent, which he may have sustained therefrom, which damages may be recovered by a civil action in any court of competent jurisdiction, whether the offender has been convicted or not. History: Enacted March 21, 1905; see introductory note. 1001 § 1859 CIVIL CODE. [Div.III.Pt.IV. ARTICLE IV. INNKEEPERS. § 1859. Innkeeper's liability. § 1860. How exempted from liability. § 1861. Liicn for 'liarges on baggage. §1862. Unclaimed baggage may be sold at auction; notice of. § 1863. Keepers to post rates of charges. § 1859. INKEEPER'S LIABILITY. The liability of an inn- keeper, hotel keepei', boarding-house 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; [Amonnt of liability.] Provided, however, that in no case shall such liability exceed the sum of one hundred dollars for each trunk and its contents, fifty dollars for each valise or traveling-bag and contents, and ten dollars for each box, bundle, or package and contents, so placed under his care, unless he shall have consented in writing with the owner thereof to assume a greater liability. History: Enacted March 21, 1872; amended March 12, 1895, Stats, and Amdts. 1895, p. 49. See Kerr's Cyc. C. C. for 39 pars, annotation. 93 C. 253, 261, 262, 27 A. S. 198, 26 P. 1099, 1100, 1101, 28 P. 943, 16 L. 188 (construed); 96 C. 490, 492, 493, 31 P. 560 (con- strued). As to compulsory service by innkeepers, see 15 L. 321. As to contributory negligence of guest, and when relieves innkeeper from liability, see 41 A. R. 777. As to definition of inn, see 6 L. 483. As to liability of innkeepers, see 35 A. D. 125. As to liability of innkeepers for goods of their guests, see 18 A. R. 130; 99 A. S. 577. As to liability of innkeepers for loss of property; for what property; for property lost or stolen, when not liable, see 12 L. 382. As to refusing to receive guests, see 19 A. S. 584. As to responsibility of innkeeper; liability as insurer; as bailee, see 6 L. 483, 809; 12 L. 382. 1002 il Tit.III,ch.II,art.IV.] exemption— lien. §§ 1860-1861 As to sleeping-car companies as innkeepers, see 21 L. 289. As to who are guests, see 14 A. D. 258, 259; 46 A. D. 119. As to who are guests or innkeepers, and when they cease to be such, see 62 A. D. 586. As to wlio are innkeepers and their respective riglits, remedies, and obligations, see 7 A. D. 449, 458. As to what goods of guest innkeeper is liable for, see 69 A. D. 221, 226; 18 A. R. 130-136. As to what is an inn or tavern, see 35 A. D. 137. As to when relation of innkeepers and guests exists, see 6 L. 483, 809; 12 L. 382. § 1860. HOW EXEMPTED FROM LIABILITY. If an inn- keeper, hotel keeper, boarding-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 a 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 articles of unusual value and small compass, unless placed therein, he is not liable, except so far 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 dollars for any or all such property of any individual guest, boarder, or lodger, unless he shall have given a receipt in writing there- for to such guest, boarder, or lodger. History: Enacted March 21, 1872; amended March 12, 1895, Stats, and Amdts. 1895, p. 50. See Kerr's Cyc. C. C. for 3 pars, annotation. § 1861. LIE?f FOR CHARGES ON BAGGAGE. Hotel, inn, boarding-house and lodging-house keepers shall have a lien upon the baggage 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 own request, with the right to the possession of such 1003 § 1862 CIVIL CODE. [Div.III,Pt.IV. baggage or other property of value, until all such charges are paid. History: Enacted April 1, 1876, Code Amdts. 1875-6, p. 78. See Kerr's Cyc. C. C. for 3 pars, annotation. As to lien of innkeeper, see 57 A. R. 31. §1802. t UNCLAIMED BAGGAGE MAT BE SOLD AT AUCTION; NOTICE OF. Whenever any trunk, carpet-bag, valise, box, bundle, or other baggage has heretofore come, or shall hereafter come into the possession of the keeper of any hotel, inn, boarding 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 expenses of adver- tising and sale thereof; but no such sale shall be made until the expiration of four weeks from the first publication of notice of such sale in a newspaper published in or nearest the city, town, village, or place in which said hotel, inn, boarding or lodging house is situated. Said notice shall be published once a week, for four successire 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 such keeper, and the time and place of sale; and the expenses incurred for advertis- ing shall be a lien upon such trunk, carpet-bag, valise, 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 representa- tives, within one year thereafter, the same shall be paid into the general fund of said county. History: Enacted April 1, 1876, Code Amdts. 1875-6, p. 78. 1004 Tit.III,ch.II,art.lV.] posting RATES. ETC. § 1863 § 1863. KEEPERS TO POST RATES OF CHARGES. Every keeper of a hotel, inn, boarding or lodging house, shall post in [a] 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 col- lected 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 regulations of said hotel, inn, board- ing or lodging house. For any violation of this section, or any provision herein contained, the offender shall forfeit to the injured party three times the amount of the sum charged in excess of what he is entitled to. History: Enacted April 1, 1876, Code Amdts. 1875-6, p. 79; amended by Code Commission, Act March 16. 1901 Stats, and Amdts. 1900-1. p. 411, held unconstitutional, see history, S 4 ante. 1005 §§ 1864, 1865 CIVIL CODE. [Div.III.Pt.IV. ARTICLE V. FINDING. § 1864. Obligation of finder. § 1865. Finder to notify owner. Duty where owner not known. §1866. /""-limant to prove ownersliip. § 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. Property vests in finder, when. Publication in certain cases. Liability of finder to owner. § 1872. Thing abandoned. § 1864. OBLIGATIOJf OF FINDER. One who finds a thing lost is not bound to take charge of it, but if he does so he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to rights and obligations of depositary for hire, see Kerr's Cyc. C. C. §§ 1851 et seq. and notes. §1865. FINDER TO NOTIFY OWNER. DUTY WHERE OWNER NOT KNOWN. If the finder of a thing, other than a domestic animal, takes possession thereof, or if a person saves any such animal from drowning or starvation, he must, within a reasonable time, inform the owner thereof, if known, and make restitution to him upon demand, without compensation, except a reasonable charge for saving and caring therefor. If the owner is not known to such finder or saver, he must, within five days, file an affidavit with the justice of the peace of the county whose office is nearest to the place of such finding or saving, particularly describing the property and the time, place, and circumstances under which it was found or saved. Such justice must then sum- mon three disinterested persons to appraise the property. They, or a majority of them, must make two lists of the 1006 Tit.III,ch.II,art.V.] CLAIMANT— finder. §§ 1866-1869 valuation and description of the property, by them verified, and deliver one of such lists to the justice of the peace, to be kept by him on file in his office, and the other list must be delivered to such finder or saver, who must, within five days thereafter, cause it to be filed for record in the office of the county recorder of the county, who must record it in a book known as the "Estray and Lost Property Book." History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 411, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 613. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 1865, note. § 1866. CLAIMANT TO PROVE OWNERSHIP. The finder of a thing may, in good faith, before giving it up, require reasonable proof of ownership from any person claiming it. History: Enacted March 21, 1872. §1867. REWARD, ETC., TO FINDER. The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it. History: Enacted March 21, 1872. § 1868. FINDER MAY PUT THINO FOUND ON STORAGE. 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. History: Enacted March 21, 1872. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 1868, note. § 1869. WHEN FINDER MAY SELL THE THING FOUND. The finder of a thing may sell it, if it is a thing which is commonly the subject of sale, when the owner cannot, with reasonable diligence, be found, or, being found, refuses upon 1007 §§ 1870, 1871 CIVIL CODE. [Div.III.Pt.IV. demand to pay the lawful charges of the finder, in the fol- lowing 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 amonnt to two- thirds of its value. liistory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. § 1870. HOW SALE IS TO BE MADE. A sale under the provisions of the last section must be made in the same man- ner as the sale of a thing pledged. History: Enacted March 21, 1872. As to sale of pledge, see Kerr's Cyc. C. C. §§ 3000 et seq. and notes. § 1871. PROPERTY VESTS IN FINDER, WHEN. PUBLI- CATION IN CERTAIN CASES. LIABILITY OF FINDER TO OWNER. If no owner appears within six months after such finding or saving and offers reasonable proof of his owner- ship, and compensates, or in good faith offers to compensate, the finder or saver for the expense necessarily incurred by him, then such property vests in such finder or saver, unless it is of greater value than twenty dollars. If of such greater value, he must publish a copy of such verified list for three successive weeks in some newspaper of general circulation published in the county, and if the owner does not, within one year after the completion of such publication, prove the property and pay, or in good faith offer to pay, all charges thereon, the title thereto vests in such finder or saver. If the finder or saver of property does not comply with the provisions of section hundred and sixty-five, or if, though he does so comply, he refuses to surrender the property to an owner who has made reasonable proof of ownership, and paid, or in good faith offered to pay, all legal charges thereon, he is liable to the owner for double the value of the property, and the owner may exonerate himself from all liability aris- 1008 Tit.III.Ch.III.] THINGS ABANDONED. §§1872,1878 ing out of such property by surrendering, or offering to sur- render, it in satisfaction thereof. History: Enacted Marcli 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 412, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 614. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 1871, note. § 1872. THING ABANDONED. The provisions of this arti- cle have no application to things which have been inten- tionally abandoned by their owners. History: Enacted March 21, 1872. CHAPTER III. DEPOSIT FOR EXCHANGE. § 1878. Relations of the parties. §1878. RELATIONS OF THE PARTIES. A deposit for exchange transfers to the depositary the title to the thing deposited, and creates between him and the depositor the relation of debtor and creditor merely. History: Enacted March 21, 1872. As to definition of deposit for exchange, see ante § 1818. As to loan for exchange, see Kerr's Cyc. C. C. § 1902 and note. 1009 § 1884 ^ CIVIL CODE. [Div.III,Pt.IV. TITLE IV. LOAN. Chapter I. Loan for Use, §§ 1884-1896. 11. Loan for Exchange, §§ 1902-1906. m Loan of Money, §§ 1912-1920. CHAPTER I. LOAN FOR USE. § 1S84. Loan, what. § 1885. Title to property lent. § 1886. Care required of borrower. § 1887. Same. [Of animal for use.] § 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. LOAN, WHAT. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. As to difference between bailment and sale, see 10 A. D. 490; 2 A. S. 711; 94 A. S. 216. As to distinction between loan and deposit, see 19 Encyc. L. 465. As to distinction between loan and gift, see 19 Encyc. L. 462 and cases cited in notes. As to distinction between loan and hiring, see 19 Encyc. L. 463. As to distinction between loan and pledge, mandate or mutuum, see 19 Encyc. L. 464 and notes. 1010 Tit.IV.ch.L] TITLE, CARE, SKILL. §§1885-1889 § 1885. TITLE TO PltOPEKTY LENT. A loan for use does not transfer the title to the thing; and all its increase during the period of the loan belongs to the lender. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. § 1886. CARE KEQIIRED OF BORROWER. A borrower for use must use great care for the preservation in safety and in good condition of the thing lent. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. As to liability of gratuitous bailee, see 25 A. D. 598: 97 A. D. 62; 38 A. S. 779; 10 L. 481. Borrower is not responsil)le for reasonable wear and tear of what is loaned, or for its utter loss or damage without blame or neglect attributable to himself. — 5 Cyc. 188 and cases cited in notes 37, 38, and 39. Responsibility for slight neglect. — See 3 Encyc. L. 746 and cases cited in note 1; also 5 Cyc. 188. § 1887. SAME. [OF ANIMAL FOR USE.] One who bor- rows a living animal for use, must treat it with great kind- ness, and provide everything necessary and suitable for it. History: Enacted Marcli 21, 1872. As to depositary of living animals for keeping, see Kerr's Cyc. C. C. § 1834 and note. As to duty of borrower of horse witlujut compensating for its use, see Kerr's Cyc. C. C. § 1887, note. § 1888. DEGREE OF SKILL. 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 possess. History: Enacted March 21, 1872. As to performance of service, compare with § 1976, post. § 1889. BORROWER, WHEN TO REPAIR INJURIES. A borrower for use must repair all deteriorations or injuries 1011 §§ 1890-1893 CIVIL CODE. tDiv.III,Pt.IV. to the thing lent, which are occasioned by his negligence, however slight. History: Enacted March 21, 1872. § 1890. USE OF THING LENT. 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. History: Enacted March 21, 1872. As to indemnifying depositary, see ante § 1833. As to liability of bailee for misuser, see 12 A. D. 619. As to loan of money for exchange, see post §§ 1902, 1906. "Lender has right to prescribe terms and conditions," see 19 Encyc. L. 466 and cases cited in notes. §1891. RELENDING FORBIDDEN. The borrower of a thing for use must not part with it to a third person, without the consent of the lender. History: Enacted March 21, 1872. As to lender's right to prescribe terms and conditions, see 19 Encyc. L. 466 and cases cited. As to power of bailees to make sale, see 66 A. D. 758. As to purchaser from one having no authority to sell getting no title, see 3 A. D. 345; 25 A. D. 604; 32 A. D. 541; 51 A. D. 607. § 1892. BORROWER, WHEN TO BEAR EXPENSES. 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 the lender, who may, however, exonerate himself by surrendering the thing to the borrower. History: Enacted March 21, 1872. As to non-liability for depreciation in value of borrower of stock to be returned on demand, see Kerr's Cyc. C. C. § 1892, note. § 1893. LENDER LIABLE FOR DEFECTS. The lender of a thing for use must indemnify the borrower for damage 1012 « i TitlV.ch.L] RETURN, DEMAND, PLACE. §§1894-1896 caused by defects or vices in it, which he knew at the time of lending, and concealed from the borrower. Historr: Enacted March 21, 1872. AS to duty of lender to disclose 'ti. The products of a thing hired, during the hiring, belong to the hirer. History: Enacted March 21, 1872. See Kerr's Cvc. C. C. for 13 pars, annotation. As to distinction between cropping contract and lease, see Kerr's Cyc. C. C. § 1925 and note par. 24. 1023 § 1927 CIVIL CODE. [Div.III.Pt.IV. As to lien on crop for rent, see Kerr's Cyc. C. C. § 1947 and note. As to ownership of increase of animals liired, see 1 Cent. Dig. col. 442, § 10. Fixtures — To whom belong-. — See Kerr's Cyc. C. C. §§ 660, 1013, 1019 and notes. Lease of land with live stock thereon. — See Kerr's Cyc. C. C. § 1958 and note. Products and accessions to property — To whom belong. — See Kerr's Cyc. C. C. §§ 732, 1013-1033 and notes. Rights to emblements. — See 3 L. 120; 11 L. 800. § 1927. QUIET POSSESSION. An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 61 pars, annotation. 86 C. 298, 304, 24 P. 1015, 1017 (construed and applied); 117 C. 67, 70, 48 P. 984 (construed and applied). As to action by lessor of chattel for trespass committed during continuance of lease, see Kerr's Cyc. C. C. § 1955 and note. As to attornment, see Kerr's Cyc. C. C. § 1948 and note. As to lessee's right to possession of crop, see Kerr's Cyc. C. C. § 1926 and note. As to liability for rent when possession interfered with by stranger, see Kerr's Cyc. C. C. § 1947 and note par. 42. As to liability of lessor to adjoining proprietors, see Kerr's Cyc. C. C. § 1930 and note par. 5. As to recovery of rent after eviction from portion of premises, see Kerr's Cyc. C. C. § 1947 and note pars. 44, 45. As to right of re-entry to make necessary repairs, see Kerr's Cyc. C. C. § 1941 and note. As to trespass against stranger, see Kerr's Cyc. C. C. § 1927, note pars. 15, 16, 58. Acts of third parties, when justify abandonment. — See 38 A. S. 484. Counterclaim for damages in action for rent. — See Kerr's Cyc. C. C. § 1947 and note par. 34. Damages for breach of covenant of quiet enjoyment. — See Kerr's Cyc. C. C. § 3304 and note. Damages for failure to give possession and for eviction. — See 100 A. D. 428, 429; 58 A. R. 606-614. Improvements designated as part of property leased. — See Kerr's Cyc. C. C. § 1941 and note par. 22. 1024 Tit.V,ch-I.] DEGREE OP CARE. §§ 1928, 1929 Partial eviction by lessor, effect of. — See 38 A. S. 491, 492. Personal property — Right of hirer to quiet possession of. — •See Kerr's Cyc. C. C. § 1955 and note. Property in adverse possession of anotlier may be leased. — See Kerr's Cyc. C. C. § 1925 and note. Recovery back of rent paid after eviction. — See Kerr's Cyc. C. C. § 1947 and note pars. 91, 93. Replevin for skins of wild animals taken fro'm premises. — See Kerr's Cyc. C. C. § 1926 and note. Right of lessee to light and air. — See 22 L. 540-543; 23 L. 158. "Term" defined. — See Kerr's Cyc. C. C. § 1925 and note par. 61. Verbal notice of paramount title asserted by stranger. — See Kerr's Cyc. C. C. § 1949 and note. What justifies tenant in abandoning leased premises. — See 38 A. S. 476-492. § 1928. DEGREE OF CARE, ETC 05 PART OF HIRER. The hirer of a thing must use ordinary care for its preserva- tion in safety and in good condition. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 118 C. 368, 369, 50 P. 650 (referred to). As to excuses for non-performance, see Kerr's Cyc. C. C. §§ 1511, 1512 and notes. As to liability where horse is driven beyond point agreed upon, see Kerr's Cyc. C. C. § 1930 and note par. 6. Death of animal hired. — See Kerr's Cyc. C. C. § 1958 and note. Depositary for hire required to use ordinary care. — See Kerr's Cyc. C. C. §1852 and note. Escape of hired animal. — See Kerr's Cyc. C. C. § 1958 and note. Letting of horse for hire. — See 12 L. 397. Repair of injuries occasioned by hirer's want of ordinary care. — See Kerr's Cyc. C. C. § 1929 and note. Use of thing for other than particular purpose for which let. — See Kerr's Cyc. C. C. § 1930 and note. § 1929. MIST REPAIR INJURIES, ETC. The hirer of a thing must repair all deteriorations or injuries thereto occa- sioned by his want of ordinary care. Hi.story: Enacted March 21, 1S72: amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 412, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 614. Kerr's C. C. — 33 1025 §§ 1930, 1931 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C C. for 7 pars, annotation. 59 C. 563, 566 (referred to with §1941); 86 C. 298, 304, 24 P. 1015 (referred to in construing- §1941); 92 C. 548, 551, 28 P. 599, 600 (referred to with §1941); 102 C. 476, 480, 36 P. 835 (referred to with §1941); 118 C. 368, 369, 50 P. 650 (referred to). Action for damages lies. — See Kerr's Cyc. C. C. § 1922 and note par. 2. Charterer of ship liable for repairs during voyage. — See Kerr's Cyc. C. C. § 965 and note. Commissioners' note cites 2 Hil. Torts, 525, note 8b; Story Bailm. §§ i'JS, iO^-413. Dwelling-house must be put in fit condition and repaired by, whom. — See Kerr's Cyc. C. C. §§ 1941, 1942 and notes. Termination of hiring for failure of hirer to make repairs. — See Kerr's Cyc. C. C. § 1931 subd. 2 and note. §1930. THING LET FOR A PARTICULAR PURPOSE. When a thing is let for a particular purpose the hirer must not use it for any other purpose; and if he does, he is liable to the letter for all damages resulting from such use, or the letter may treat the contract as thereby rescinded. History; Enacted Marcli 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 412, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 614. See Kerr's Cyc. C. C. for 11 pars, annotation. 118 C. 368, 369, 50 P. 650 (referred to); 147 C. 659, 661, 662, 82 P. 317 (provision is applicable to hiring of real property, and why). Action for damages lies, when. — See Kerr's Cyc. C. C. § 1928 and note par. 2. Care which must be used by hirer for preservation of thing let. — See Kerr's Cyc. C. C. § 1928 and note. Letting of horse for hire. — See 12 L. 397. Negligence in use of barge. — See Kerr's Cyc. C. C. § 1928 and note par. 13. Sublessee of hirer liable. — See Kerr's Cyc. C. C. § 1928 and note par. 16. § 1931. WHEN LETTER MAY TERMINATE THE HIRING. 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 agreement of the parties; or, 1026 I Tit.V.ch.I.] TERMINATION OF HIRING. § 1932 2. When the hirer does not, within a reasonable time after request, make such repairs as he is bound to make. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. As to recovery of treble damages for waste, see Kerr's Cyc. C. C. § 1715 and note, and Kerr's Cyc. C. C. P. § 1732 and note, which sections are identical. Breach of covenant as ground of forfeiture. — See Kerr's Cyc. C. C. P. § 1161 subd. 3 and note. Deposit may be terminated by depositor, at what time. — See Kerr's Cyc. C. C. §§ 1854, 1855 and notes. Forfeiture of lease for breach of condition by lessee. — See 26 A. S. 911-913. Notice is not necessary at end of term agreed upon. — See Kerr's Cyc. C. C. § 1946 and note par. 10. Presumption that hiring continues during continuance of. hirer's possession. — See Kerr's Cyc. C. C. § 1945 and note. Re-entry after forfeiture — Election of remedies. — See 8 L. 759, 760. Unlawful detainer after default in payment of rent. — See Kerr's Cyc. C. C. P. § 1161 subd. 2 and note. Waiver of forfeiture by acceptance of rent. — See 47 A. S. 198, 199. § 1932. WHEX HIKER M.VY TEKmXATE THE HIRING. 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 reasonable time after request, fulfil his obligations, if any, as to placing and secur- ing 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 which the latter 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 want of ordinary care of the hirer. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 412, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 614. 92 C. 548, 552, 28 P. 599, 600 (subd. 1 referred to with § 1941). Abandonment of lease by lessee. — See Kerr's Cyc. C. C. § 1925 and note pars. 1-5. 1027 § 1933 CIVIL CODE. [Div.III.Pt.IV. Commissioners' note. — See Kerr's Cyc. C. C. § 1931 and note par. 2. Depositary may terminate deposit iipon reasonable notice, when. — See Kerr's Cyc. C. C. § 1854 and note. Presumption tliat liiring- continues during continuance of liirer's possession. — See Kerr's Cyc. C. C. § 1945 and note. Rescission of lease by lessee without notice to make repairs. — See Kerr's Cyc. C. C. § 1941 and note. What justifies tenant in abandoning- leased property. — See 38 A. S; iVG- 192. §1933. WHEN HIRING} TERMINATES. 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. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 41 pars, annotation. 98 C. 422, 425, 33 P. 729, 730 (construed and applied). As to covenants which run with land, see Kerr's Cyc. C. C. §§ 1460-1468 and notes. As to estoppel of lessee to deny lessor's title, see Kerr's Cyc. C. C. § 1948 and note. As to measure of damages for breach of contract, see Kerr's Cyc. C. C. §§ 3300 et seq. and notes. As to necessity for notice at end of term, see Kerr's Cyc. C. C. § 1946 and note par. 10.' As to necessity for notice to quit at expiration of the term, see Kerr's Cyc. C. C. § 1946 and note par. 10. As to unlawful detainer, see Kerr's Cyc. C. C. P. § 1161 and note. As to unlawful detainer after three days' notice to quit upon breach of covenant, see Kerr's Cyc. C. C. P. § 1161 subd. 3 and note. Abandonment of lease by lessee. — See Kerr's Cyc. C. C. § 1925 and note pars. 1-5. Breach of covenant as ground of forfeiture. — See Kerr's Cyc. C. C. P. § 1161 subd. 3 and note. Covenant of lessor to renew lease. — See Kerr's Cyc. C. C. § 1925 and note par. 22. Covenant that lease shall be terminable upon sale of premises by lessor. — See Kerr's Cyc. C. C. § 1931 and note pars. 3, 4. 1028 TitV,ch.I.] TERMINATION BY DEATH. §§ 1934, 1935 -See 64. Death of lessor terminates tenancy by sufferance or at will. —See Kerr's Cyc. C. C. § 1934 and note. Death of party— Effect of.— See 23 L. 707, 70S. Destruction of building on leased premises— Liability for rent.— See Kerr's Cyc. C. C. § 1947, note pars. 39, 40. Distinction between lease for month and one from month to month.— See Kerr's Cyc. C. C. § 1946 and note par. 7. Ejectment maintainable by lessor after expiration of term without notice or demand.— See Kerr's Cyc. C. C. § 793 and note, and Kerr's Cyc. C. C. P. § 1161 and note. Fixing time of enjoyment.- See Kerr's Cyc. C. C. §70< and note. Forcible expulsion after termination— Liability of lessor for. —See 16 L. 798, 799. Holding over— Liability of lessee for use and occupation.— See Kerr's Cyc. C. C. § 1947 and note par. 54. Lessee's duty to leave premises in good condition.- L. 648-667. Right of landlord to enter after termination of lease. — bee 69 A. D. 754-756. Rights and liabilities of lessee upon destruction of leased premises. — See 61 A. S. 566-572; 22 L. 613-616. Surrender during term.— See Kerr's Cyc. C. C. § 1925 and note pars. 58, 59. "Term" defined.— See Kerr's Cyc. C. C. § 1925 and note par. 61. Unlawful detainer after default in payment of rent.— See Kerr's Cyc. C. C. P. § 1161 subd. 2 and note. What landowner may do to take possession of his land.— See note 69 A. D. 754-756. §1934. ^VHEX TERMINATED BY DEATH, ETC., OF PARTY. If the hiring of a thing is terminable at the pleas- ure of one of the parties, it is terminated by notice to the other of his death or incapacity to contract. In other cases it is not terminated thereby. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. § 1935. ArrORTIOWENT OF HIRE. When the hiring of a thing is terminated before the time originally agreed upon, the hirer must pay 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 benefit to him. History s Enacted March 21 1029 1872. § 1941 CIVIL, CODE. [Div.III,Pt.IV. See Kerr's Cyc. C. C. for 2 pars, annotation. 4 C. A. 192, 195, 87 P. 235 (referred to — counsel contending that this section has no application to leasing of real property). Apportionment of rent. — See 37 A. R. 283. Compensation of depositary for hire during fraction of week, etc. — See Kerr's Cyc. C. C. § 1853 and note. CHAPTER II. HIRING OF REAL PROFERTY. § 1941. Lessor to make dwelling-house fit for its purpose. § 1942. 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. § 1946. Notice to quit. § 1947. Rent, when payable. § 1948. Attornment of a tenant to a stranger. § 1949. Tenant must deliver notice served on him. § 1950. Letting parts of rooms forbidden. § 1941. LESSOR TO MAKE DWELLING-HOUSE FIT FOR ITS PURPOSE. The lessor of a building intended for the occupation of human beings must, in the absence of an agree- ment to the contrary, put it into a condition fit for such occu- pation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in sec- tion nineteen hundred and twenty-nine. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 245, 246, by inserting the words "in absence .of any agreement to the contrary;" 59 C. 563, 566. See Kerr's Cyc. C. C. for 40 pars, annotation. 59 C. 563, 565, 566 (construed with reference to §1942); 66 C. 182, 4 P.- 1188 (referred to); 76 C. 173, 174, 18 P. 260, 261 (con- strued with reference to §1942); 81 C. 58, 59, 22 P. 304 (con- strued with reference to §1942); 86 C. 203, 205, 24 P. 1009 (construed with §1942); 86 C. 298, 304, 24 P. 1015, 1017 (con- strued); 92 C. 548, 551, 552, 28 P. 599, 600 (construed with reference to §1942); 31 P. 529, 530 (construed); 102 C. 476, 480, 36 P. 835 (construed); 124 C. 520, 522, 523, 57 P. 567 (construed With §1942); 128 C. 187, 190, 60 P. 687 (referred to); 4 C. A. 12, 16, 87 P. 222 (referred to). 1030 Tit V Ch.ll.] LEASES, GENERALLY. § 1941 HIRING OF REAL, PROPERTY— I.EASE. As to covenant of lessor to make repairs, see Kerr's Cyc. C. C. §1941, note pars. 11-14. As to deterioration or injuries occasioned by ordinary negli- gence of hirer, see Kerr's Cyc. C. C. § 1929 and note. As to fixtures and property on premises and rights of the parties therein.— See 5 L. 150; 9 L. 700; 10 L. 722; 19 L. 443. As to injury to goods in premises leased for storage, see Kerr's Cyc. C. C. § 1941, note pars. 6-8. As to liability of lessor and lessee for nuisance in connec- tion with leased premises, see Kerr's Cyc. C. C. § 3493 and note. As to negligence in making repairs undertaken by lessor, see Kerr's Cyc. C. C. § 1941, note par. 28. As to right of lessor to re-enter for purpose of makmg altera- tions, see Kerr's Cyc. C. C. § 1927 and note par. 3. As to what constitutes act of God, see Kerr's Cyc. C. C. § 1511 and note pars. 2-13; 1 W. & P. 118-125. As to what constitutes deceit, see Kerr's Cyc. C. C. §§1(09, 1710 and notes. Abandonment— What justifies the tenant in.— See 38 A. b. 4(b. Same— What may be done after abandonment^ by tenant and still hold him to his obligation. — See 14 A. S. 717. Acceptance— Of lease by one already in possession. — See 13 A. D. 168. Same— Of rent accruing after cause for forfeiture, with knowledge of such cause, as waiver of forfeiture.— See 12 L. N. S. 831. Actions for rent, counterclaims of tenant in. — See 46 A. R. 4 < 4. Adverse possession by tenant as against landlord.— See 12 L. N. S. 148. ^ „. Agreement for cultivation of land on the shares. — bee Si A. D. 317. Agreement to comply with lease as, consideration for new promise. — See 34 L. 36. Alteration of terms of lease, as discharge of sureties of lessee. —See 6 A. C. 359. Apportionment of rent — As to generally, see 31 A. D. 517; 37 A. R. 283. ^ ,^ ^ Same— On destruction of part of leased property.— See 31 A. D. 517: 37 A. R. 283. Assignee of lease, right to enforce option of purchase. — See 5 A. C. 914. Assignees and sublessees, remedies against. — See 15 A. D. 543. Assignment of lease — As to generally, see 7 A. C. 536; 14 L. 151; 15 L. 754; 34 L. 62. Same— Covenant against, as affected by transmission of lessee's interest upon his death. — See 12 A. C. 978. 1031 § 1941 CIVIL CODE. [Div.III.PtlV. Same — Distinction between lease and sublease. — See 7 A. C. 537. Same — Respective rights and liabilities of the lessor, assignee, and assignor.- — See 10 A. S. 557. Attornment — And its effect. — See 89 A. S. 101. Same — To mortgagee in possession. — See 8 L. 568. Breach of condition, forfeiture of lease for. — See 26 A. S. 910. Breach of covenant for quiet enjoyment, measure of damages for. — P?^ ^S A. R. 606. By the elements, what constitutes damages by, within mean- ing of lease. — See 53 L. 673. Compensation when lease invalid under statute of frauds. — See 26 L. 799-802. Construction of lease — As to, generally, see 7 A. C. 591; 10 A. C. 357; 1 L. 529. Same — Parol evidence in aid of. — See 3 L. 331. Same — "Water rents and taxes as rates within covenants of. — See 8 A. C. 111. Crops — Right of tenant to maintain his possession by means of wrongful injunction. — See 12 L. N. S. 194. Same — To be raised by tenant, reservation of lien on or title to.— See 14 A. S. 166. Counterclaims by tenant in actions for rent. — See 46 A. R. 474. Courthouse, lease of for private uses. — See 33 L. 118. Covenants — Implied on part of landlord. — See 34 A. D. 355; 43 A. R. 227. Same — Of landlord to repair or make improvements. — See 87 A. D. 237. Same — Of tenant to pay rent. — See 87 A. D. 237. Same — To pay rent and to make repairs or improvements, whether dependent or independent. — See 87 A. D. 237. Same — To repair, express or implied. — See 95 A. D. 118. Covenants and putting in possession, as to, generally, see 4 L. N. S. 466; 9 L. N. S. 1127; 9 L. N. S. 1131. Covenants for renewal, right of assignee of lease to enforce. — See 12 A. C. 969. Covenants in lease, water rents as taxes or rates within mean- ing of.— See 8 A. C. 111. Damage — "By the elements", what constitutes within mean- ing of lease. — See 3 W. & P. 2345. Same — Measure of when lessee is evicted or prevented from taking possession. — See 100 A. D. 428. Dangerous premises, liability of landlord for injuries caused by. — See 28 A. R. 32. Death of lessor or lessee, effect on lease. — See 23 L. 707. Defective and dangerous premises, liability of lessor for. — See 66 A. S. 785. Destruction of, or injuries to building, effect upon lease of part of building. — See 9 A. C. 107. 1032 Tit.V,ch.II.] LEASES, GENERALLY. § 1941 Destruction of whole or part of leased premises — Apportion- ment of rents. — See 31 A. D. 517; 37 A. R. 283. Same — Rights and liabilities of tenant upon. — See 94 A. D. 662; 61 A. S. 566; 22 L. 613. Same — When releases tenant. — See 56 A. R. 469. Distinction between a lease and a license. — See 18 L. 491. Distress — Exemption from seizure under. — See 17 A. D. 458. Same — For rent. — See 15 A. D. 585. Distress warrant, use of to enforce payment of compensation for use of property other tlian land. — See 11 L. N. S. 836. Duty and liability of landlord as to condition of premises — As to generally, see 9 L. 798; 10 L. 147; 10 L. 794; 34 L. 562; 46 L. 93; 66 L. 154. Same — As to part of premises not controlled by tenant. — See 23 L. 155; 29 L. 358. Same — For injuries from defects in portions of building remaining in his possession. — See 14 L. 238. Same — For injuries to tenant from defect in premises. — See 34 L. 824-831. Same — For injuries to tenant's guests and servants from defect in premises. — See 34 L. 609; 46 L. 86-93. Same — To third persons, for condition of premises in posses- sion of tenant. — See 26 L. 197-203. Duty of intending lessee to inspect premises. — See 38 A. S. 478, 479. Effect of express stipulations. — See 38 A. S. 481. Effect of making improvements under oral lease void under statute of frauds. — See 3 L. N. S. 852. Effect on liability of tenant's surety of surrender of lease con- taining an oijtion to purchase. — See 9 L. N. S. 557. Emblements, rights to. — See 3 L. 124; 11 L. 800. Eminent domain, rights of parties to lease on condemnation of property by. — See 21 L. 212. Entrances, right of tenant to liave kept open. — See 4 L. N. S. 565. Entry under parol agreement for lease as part performance. — See 20 L. 36. Estoppel — By tenant to deny landlord's title. — See 15 A. D. 40; 89 A. S. 62. Same — Of tenant to dispute lessor's title. — See 1 L. N. S. 1181. Equitable relief against forfeiture — For non-payment of rent. — See 69 L. 844. Same — Of estate for non-renewal of lease. — See 69 L. 846. Eviction — Actual eviction. — See 1 W. & P. 157. Same — By admitting inconsistent business into building. — See 5 L. N. S. 855. Same — Constructive eviction. — See 2 W. & P. 1470. Same — Damages to lessee on. — See 100 A. D. 428. 1033 § 1941 CIVIL CODE. [Div.III.Pt.IV. Same — Liability of landlord for forcible, after expiration of term.— See 11 L. N. S. 468. Same — So as to relieve tenant from payment of rent, by reason of the enforcement by public officials of restrictions on the use of the premises. — See 2 L. N. S. 973. Same— What may amount to.— See 17 A. R. 62; 3 W. & P. 2517. Exception in case of furnished houses hired for short period. —See 38 A. S. 479, 480. Exei^ntion — Against claim for rent. — See 24 L. 812. Same — From seizure under distress. — See 17 A. D. 458. First and last days in computing time — For proceedings to distrain for rent. — See 49 L. 239. •Same — On contract of lease. — See 49 L. 210. Fixtures — Removal of. — See note § 660 ante. Same — To whom belong. — See Kerr's Cyc. C. C. §§ 1013, 1019 and notes. Forfeiture of lease — For breach of condition. — See 26 A. S. 910. Same — Of oil or gas lease. — See 31 L. 673. Same — Positive clause of as embracing negative covenants. — See 1 A. C. 794. Same — Waiver of. — See 47 A. S. 197. Same — Same — By acceptance of rent when. — See 11 L. N. S. 831. Fraud on part of lessor. — See 38 A. S. 480, 481. Guarantor of lease, necessity of notice in order to bind. — See 20 L. 259. Holding over — By tenant under lease giving option for renewal as exercise of option. — See 6 A. C. 341. Same — When tenant guilty of. — See 70 A. S. 533. Immoral or prohibited places. — See "Lease of premises for immoral or prohibited places", this note. Implied covenant as to fitness of premises for possession intended. — See 33 L. 449, 455. Implied renewal and continuance of lease and terms for which deemed renewed. — See 91 A. D. 653. Implied trust arising from renewal of lease. — See 7 A. C. 925. Improvement-s — Tenant's right to be allowed for. — See 81 A. S. 181. Same — Under oral lease void under the statute of frauds, effect of making. — See 3 L. N. S. 852. Injunction — As to judgment by or against surety in summary proceedings, see 31 L. 63. Same — Against dispossession by summary proceedings. — See 30 L. 129. Same — Equitable relief against forfeiture of estate for renewal of lease. — See 69 L. 486. Same — To prevent improper use of leased premises. — See 59 A. D. 870. 1034 I i Tit.V,ch.II.] LEASES, GENERALLY. § 1941 Insurance — Effect on vacancy clause in policy of tenant's removal without insurer's knowledge. — See 3 L. N. S. 966. Same — Effect upon, of breach of condition by tenant. — See 12 L. N. S. 484. Same — On leased premises, tenant cannot compel application of, to repairs. — See 37 A. R. 283. Interpleader between landlord and tenant. — See 10 L. N. S. 751. Judgment against tenant — Effect of as res judicata. — See 112 A. S. 21. Same — When binding on landlord. — See 95 A. D. 473. Landlord — Liability for injuries — As to, generally, see 3 L. N. S. 316; 3 L. N. S. 1097; 4 L. N. S. 1142; 5 L. N. S. 316; 6 L. N. S. 977; 11 L. N. S. 504; 12 L. N. S. 1025. Same — Same — Resulting from condition of the premises after the execution of the lease. — See 17 A. R. 127. Same — Same — To third persons. — See 59 A. D. 733; 92 A. g. 499. Same — Power to reserve lien on crops to be raised. — See 14 A. S. 166. Same — Right to lien on tenant's property. — See 119 A. S. 122. Same — Validity of statute holding liable for water and light furnished tenant. — See 6 L. N. S. 198. Landlord's lien — As to, generally, see 12 L. 605; 12 L. 848; 30 L. 129; 49 L. 437; 59 L. 737. Same — Waiver of by attachment. — See 50 L. 717. Lease — Alteration of terms of as discharge of sureties of lessee. — See 6 A. C. 359. Same — Covenant against assignment of, as affected by trans- mission of lessee's interest upon his death. — See 12 A. C. 978. Same — Covenant for renewal in, right of assignee of lease to enforce. — See 12 A. C. 969. Same — Of courtliouse for private uses. — See 33 L. 118. Same — Of land — As conveyance. — See 11 L. N. S. 99. Same — Same — Validity of, made in violation of law. — See 12 L. N. S. 605. Same — Of mines, as to, gencrallj', see 1 L. N. S. 333; 4 L. N. S. 207; 4 L. N. S. 477; 11 L. N. S. 417. Same — Of oil lands. — See 12 L. 290. Same — Of premises — For immoral or prohibited purposes. — See 8 A. R. 140. Same — Same — Within statute of frauds, compensation for. — See 26 L. 799. Lease and sublease distinguished. — See 86 A. D. 394; 15 L. 236; 1 W. & P. 569. Lease for more than one year to be in writing. — See 7 L. 671. Lease to commence at future time, what is lease for one year. —See 10 L. 726. 1035 § 1941 CIVIL CODE. [Div.III.Pt.IV. Leasehold interest — As subject of taxation. — See 15 L. 297. Same — In real estate as partnership property. — See 27 L. 4S3. Lessee of life tenant. — See 11 L. N. S. 688. Levy on interest of parties in crops. — See 23 L. 260. Liability — For evicting- tenant. — See 16 L. 798; 55 L. 258. Same — For injuries from failure to repair demised premises. — See 95 A. D. 123-125. Same — For nuisance on leased premises. — See 15 A. R. 78; 15 A. B. 398. Same— For rtjUi of premises occupied by receiver or assignee for creditors. — See 59 L. 673-696. Same — Of assignee of leasehold for rent. — See 14 L. 151-155. Same — Of landlord — For damages for forcibly dispossessing tenant after expiration of term. — See 11 L. N. S. 468. Same — Same — For injuries resulting from condition of prem- ises after execution of lease. — See 17 A. R. 127. Same— Same — For injuries to third persons. — See 59 A. D. 733; 92 A. S. 499. Same — Same — Letting premises in defective and dangerous condition.— See 66 A. S. 785-789. Same — Of lessor — For injuries resulting from condition of premises.— See 14 L. 238-241; 23 L. 158, 159; 34 L. 609-616, 824- 832; 46 L. 83-94. Same — Same — To third person. — See 50 A. D. 779-783. Same — Of tenant's surety, effect on of surrender of lease con- taining an option of purchase. — See 9 L. N. S. 557. Lien on crops to be raised, power of landlord to reserve. —See 14 A. S. 166. Same — On tenant's property, right of landlord to. — See 119 A. S. 122. Life tenant, lessee of. — See 11 L. N. S. 688. Light furnished tenant, liability of landlord for. — See 6 L. N. S. 198. Manure — Made on farm belongs to realty. — See 28 A. R. 39; 31 L. 698. Mechanics' lien — On building erected by lessee upon lessor's land. — See 23 L. 375. Same — On landlord's interest for labor and materials furnished tenant for building or improvements removable by tenant. — See 6 L. N. S. 485. Mining lease as sale of land. — See 9 A. C. 524. Negligence of lessor in allowing overflow of water. — See Kerr's Cyc. C. C. § 1927 and note par. 38. New lease as affecting right to remove fixtures. — See 3 A. C. 331; also note ante § 660. No implied warranty that premises are suitable. — See 50 A. D. 776-779; 46 A. R. 474, 475; 55 A. R. 265-269; 38 A. S. 477, 478; note 33 L. 449-456. 1036 t I ? Tit.V.ch.II.] LEASES, GENERALLY. § 1941 Notice, necessity of in order to bind guarantor of lease. — See 20 L. 259. Notice to quit — Eviction of tenant. — See 8 L. 221. Same — ^Necessity and sufficiency of. — See 42 A. D. 125. Nuisance — In connection with leased premises — Liability of lessor and lessee. — See Kerr's Cyc. C. C. § 3493 and note. Same — Lessee's riglit to maintain suit to enjoin. — See 3 L. N. S. 448. Same — On leased premises, liability for. — See 15 A. R. 78; 15 A. R. 398. Same — Respective liabilities of landlord and tenant for. — See 50 A. D. 776; 86 A. S. 516. Same — Right of owner to recover damages to property from, not of a permanent character, ■while in possession of tenant. — See 3 L. N. S. 1060. Oil lands, lease of. — See 12 L. 290. Oil or gas lease — Lease of — Effect of assignment of. — See 3.4 L. 62. Same — Same — Forfeiture of. — See 31 L. 673. Option to purchase — As to generally, see 5 A. C. 912; 10 A. C. 357. Same — Right of assignee to enforce. — See 5 A. C. 914. Option to renew lease — As to generally, see 6 A. C. 102; 6 A. C. 339. Same — Holding over by tenant as exercise of. — See 6 A. C. 341. Parol lease within statute of frauds, effect of. — See 17 A. S. 752. Partner — Power of to make and renew lease of partnership real estate. — See 28 L. 97. Same — Right of surviving to lease firm real property. — See 28 L. 135. Premises defectively constructed or out of repair — Liability for injuries resulting therefrom. — See 59 A. D. 733-740. Priority of claims for leases and rental against property in hands of receiver over recorded liens. — See 2 L. N. S. 1030, 1044, 1060, 1066. Prohibited purposes. — See "Lease of premises for immoral or prohibited purposes," this note. Proof of claim based on lease, as fixed liability, in bank- ruptcy. — See 54 L. 374. Quiet enjoyment, measure of damages for breach of cove- nant of. — See 58 A. R. 606. Re-entry on forfeiture, election of remedies. — See 8 L. 759. Renewal and continuance of lease — Implied, and terms for which deemed renewed. — See 91 A. D. 653. Same — Right of assignee of lease to enforce covenant for. — See 12 A. C. 969. 1037 § 1941 CIVIL CODE. [Div.III.Pt.IV. Rent— As to, generally, see 11 L. 855; 14 L. 156; 17 L. 275; 22 L. 613; 26 L. 802; 33 L. 487; 40 L. 321; 49 L. 239; 49 L. 436; 54 L. 374; 55 L. 50, 54, 64; 61 L. 538; 69 L. 848. Same — Acceptance of as waiver of forfeiture, when. — See 11 L. N. S. 831. Same — Apportionment of. — See 31 A. D. 517; 37 A. R. 283. Same — Effect of partial eviction upon liability to pay. — See 17 L. 275. Same — Equitable relief against forfeiture for non-payment of. —See t>i L. Sii. Same — Guaranty of. — See 9 L. 353. Same — Liability for after desertion of premises. — See 22 L. 613. Same — Liability for on oil and gas lease. — See 33 L. 847. Rent — Liability of assignee of leasehold for. — See 14 L. 151. Same — Liability of vendee or mortgagee under stipulation to become tenant and pay on default. — See 49 L. 436. Same — Sublessee not liable on original lease. — See 11 L. 855. Reservation of lien on or title to crops raised by tenant. — See 14 A. S. 166. Restoration of destroyed or injured building — Landlord's duty as to.— See 38 A. S. 482-484. Right of entry of landlord after termination of lease. — See 69 A. D. 754. Right of surviving partner to lease Arm real property. — See 28 L. 135. Right of tenant — After expiration of lease. — See 69 A. D. 508. Same — To cut wood for fires or fences. — See 63 L. 641-649. Rights and liabilities of lessee upon destruction of leased premises. — See 61 A. S. 566-572. Rights and liabilities of parties to lease — As to, generally, see 20 L. 33; 22 L. 540; 23 L. 158; 44 L. 737; 53 L. 97; 64 L. 611; 68 L. 695. Same — Rights on condemnation of property by eminent domain. — See 21 L. 212. Rights and liabilities of tenant on destruction of leased building. — See 22 L. 613. Sale of leased premises — As to and effect of. — See 6 A. C. 356. Sale or mortgage of crops by tenant. — See 23 L. 468. Sublessees effect upon rights of, of surrender of leased premises by lessee to lessor. — See 10 A. C. 424; 7 L. N. S. 221. Same — Not liable on original lease.— See 11 L. 855. Sublessees and assignees, remedies against. — See 15 A. D. 543. Sublessor not bound to repair for sublessee, there being no difference in principle. — See 33 C. 341, 346. Subletting of leased premises. — See 117 A. S. 91. Summary proceedings to oust tenant — Appeal in. — See 9 L. SOL 1038 Tit.V.ch.II.] LEASES, GENERALLY. § 1941 Same — Notice in. — See 9 L. 798. Surrender — As to generally, see 10 A. C. 357. Same — Effect of upon riglits of sublessee of surrender by lessee to lessor. — See 10 A. C. 420, 424. Same — Effect upon liability for rent, where between rent days. —See 10 A. C. 365. Surrender of original lease, effect on rights of sublessees. — See 10 A. C. 424; 7 L. N. S. 221. Surrender of premises. — See 11 L. 498. Surviving partner, right to lease firm real property. — See 28 L. 135. Tax sale, effect to create relation of landlord and tenant between purchaser and prior lessee. — See 6 L. N. S. 260. Tenancy from year to year — Effect of payment of rent. — See 8 L. 221. Tenant — Acquisition of title by, as to, generally, see 53 L. 934-951. Same — Damages, measure of, when evicted or prevented frorri taking possession. — See 100 A. D. 428. Same — Estopped to deny landlord's title. — See 15 A. D. 40; 89 A. S. 62; 1 L. N. S. 1181. Same — Guilty of holding over when. — See 70 A. S. 533. Same — Judgment against, effect of res judicata. — See 112 A. S. 21. Same — Right to allowance for improvements. — See 81 A. S. 181. Same — Right to maintain his possession by means of wrong- ful injunction, to crops grown on the leasehold. — See 12 L. N. S. 194. Same — Sale or mortgage of crops by. — See 23 L. 468. Tenant's duty to leave premises in good condition. — See 64 L. 649-667. Termination of lease — As to generally, see 1 A. C. 790. Same — Effect upon lease of accidental destruction of or injury to part of building.— See 9 A. C. 107. Same — Positive clause of forfeiture as embracing negative covenant. — See 1 A. C. 794. Termination of tenancy — Effect of death of lessor or lessee. — See 23 L. 707. Same — First and last days in computing time. — See 49 L. 210; 49 L. 239. Same — Forfeiture of oil or gas lease. — See 31 L. 673. Same — Injunction against dispossession by summary proceed- ings. — See 30 L. 129. Same — Notice to quit, eviction of tenant. — See 8 L. 221. Same — Re-entry on forfeiture, election of remedies. — See 8 L. 759. Same — Summary proceedings to oust tenant, notice in. — See 9 L. 798. 1039 § 1942 CIVIL CODE. [Div.III.Pt.IV. Same — Same — Appeal in. — See 9 L. 801. Same — Surrender of premises. — See 11 L. 498. Time for which renewal may be had under indefinite agree- ment in lease granting option of renewal. — See 6 A. C. 102. Unliealthfulness of premises, effect of on the rights of the parties. — See 55 A. R. 265. Validity of lease made in violation of law. — See 12 L. N. S. 605. Validitj of statute holding property owner liable for water and light furnished tenant. — See 6 L. N. S. 198. Waiver of forfeiture of lease. — See 47 A. S. 197. Water and light furnished tenant, liability of landlord for. — See 8 A. C. Ill; 6 L. N. S. 198. Water rents as taxes or rates within meaning of cove- nants in lease. — See 8 A. C. Ill; 6 L. N. S. 198. When action for use and occupation for premises will lie. — See 14 L. 156; 26 L. 802. §1942. LESSEE MAY MAKE REPAIRS, ETC. If within a reasonable time after notice to the lessor, of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the cost of such repairs 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 246. This section as originally enacted provided that lessee might make repairs himself "and deduct 'the expense of such repairs from the rent, or otherwise recover it from the lessor," without providing, as it was made to read by amendment in 1874, that "where the costs of such repairs do not require an expenditure greater than one month's rent of the premises," etc., to the end of the section as it now reads; 59 C. 563, 566. See Kerr's Cyc. C. C. for la pars, annotation. 59 C. 563, 565, 566 (referred to in construing §1941); 72 C. 307, 312 (applied), 13 P. 866, 868 (erroneously cited as § 1942 C. C. P.); 76 C. 173, 174, 18 P. 260, 261 (referred to in construing § 1941); 81 C. 58, 59, 22 P. 304 (referred to in construing § 1941); 86 C. 203, 205, 24 P. 1009 (referred to in construing §1941); 92 C. 548, 550, 552, 28 P. 599, 600 (referred to in construing § 1941); 102 C. 476, 480, 481, 36 P. 835 (referred to in construing §1941); 1040 i Tit.V,ch.II.] LIMIT NOT FIXED. §§1943,1944 110 C. 219, 220, 42 P. 560 (construed); 124 C. 520, 523, 57 P. 567 (referred to in construing §1941): 128 C. 187, 190, 60 P. 687 (referred to); 4 C. A. 12, 16, 87 P. 222 (referred to). As to hiring- of real property generally, see note § 1941, ante. As to offset for repairs made by lessee, see Kerr's Cyc. C. C. § 1941 and note par. 18. Covenant to repair — Notice must be given by lessee. — See Kerr's Cyc. C. C. § 1941 and note par. 13. Fixtures — To whom belong. — See Kerr's Cyc. C. C. §§ 660, 1013, 1019 and notes. Lessee's duty to leave premises in good condition. — See 64 L. 648-667. Refusal of lessor to allow lessee to make the repairs. — See Kerr's Cyc. C. C. § 1941 and note par. 19. Rescission of lease by lessee without notice to make repairs. — See Kerr's Cyc. C. C. § 1941 and note par. 37. § 1943. TERiT OF HIRING WHEN >0 LI^TIT IS FIXED. A hiring of real property, other than lodgings and dwelling- houses, in places where there is no usage on the subject, is presumed to be for one year from its commencement, unless otherwise expressed in the hiring. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 2 C. A. 331, 333, 334, 84 P. 57 (applied to lease of premises for private hotel); 6 C. A. 618, 622, 92 P. 749 (construed with subd. 1, § 1624 as to oral lease). As to hiring of real property generally, see note § 1941, ante. Distinction between option to renew and privilege of exten- sion. — See Kerr's Cyc. C. C. § 1945 and note par. 9. Fixing time of enjoyment. — See Kerr's Cyc. C. C. § 707 and note. Forcible detainer. — See Kerr's Cyc. C. C. P. § 1160 and note. Lumbering contract construed. — See Kerr's Cyc. C. C. § 1947 and note par. 61. Option to purchase given lessee in lease. — See Kerr's Cyc. C. C. § 1731 and note. Rights of lessee after expiration of lease. — See 69 A. D. 508- 510. "Term" defined. — See Kerr's Cyc. C. C. § 1925 and note par. 61. Unlawful detainer. — See Kerr's Cyc. C. C. P. §§ 1161, 1162 and notes. § 1944. HIRING OF LODGINGS FOR INDEFINITE TERM. A hiring of lodgings or a dwelling-house for an unspecified 1041 § 1945 CIVIL CODE. [Div.III,Pt.IV. term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hiring 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 hiring is presumed to be monthly. History: Enacted March 21, 1872. As to hiring of real property generally, see note § 1941, ante. Servant discharged and notified to vacate premises. — See Kerr's Cyc. C. C. § 1946 and note par. 13. § 1945. RENEWAL OF LEASE BY LESSEE'S CONTINUED POSSESSION. If a lessee of real property remains in pos- session thereof after the expiration of the hiring, 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 exceeding one month when the rent is pay- able monthly, nor in any case one year. History: Enacted March 21, 1872, founded upon § 6 Act 1863; 42 C. 316, 323. See Kerr's Cyc. C. C. for 18 pars, annotation. 86 C. 433, 440, 25 P. 7, 9 (construed and applied); 123 C. 587, 591, 69 A. S. 84, 56 P. 422 (cited); 124 C. 244, 248, 56 P. 1032 (applied); 2 C. A. 331, 333, 334, 84 P. 57 (applied to lease of premises for private hotel). As to effect of re-entry and demand of surrender, see Kerr's Cyc. C. C. § 1933 and note par. 24. As to effect of transfer of title, see Kerr's Cyc. C. C. § 1933 and note par. 39. As to hiring of real property generally, see note § 1941, ante. Covenant of lessor to renew lease. — See Kerr's Cyc. C. C. § 1925 and note par. 22. Distinction between lease for month and one from month to month. — See Kerr's Cyc. C. C. § 1946 and note par. 7. Forcible detainer. — See Kerr's Cyc. C. C. P. § 1160 and note. Implied renewal and continuance of leases and terms for which deemed renewed. — See 91 A. D. 563, 564. Option to purchase given lessee in lease. — See Kerr's Cyc. C. C. § 1731 and note. Surrender and evacuation of premises by lessee after expira- tion of term. — See Kerr's Cyc. C. C. § 1933 and note par. 37. 1042 I i Tit.V.ch.II.] NOTICE TO QUIT. § 1946 Unlawful detainer. — See Kerr's Cyc. C. C. P. §§ 1161, 1162 and notes. Use and occupation — Liability of lessee holding over. — See Kerr's Cyc. C. C. § 1947 and note par. 54. § 1946. NOTICE TO QUIT. A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in the last section, at the end of the term implied by law, unless one of the parties 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. His/ory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 86 C. 433, 439, 25 P. 7, 9 (cited); 124 C. 244, 248, 56 P. 1032 (cited with § 1945); 2 A. C. 622, 623, 84 P. 274 (notice, under this section, in month-to-month tenancy must be for one month). As to action without notice when plaintiff has riglit of re-entry, see Kerr's Cyc. C. C. § 793 and note. As to estoppel of lessee to deny lessor's title, see Kerr's Cyc. C. C. § 1948 and note. As to hiring of real property generally, see note § 1941, ante. As to necessity for notice at end of term, see Kerr's Cyc. C. C. § 1946, note par. 10. As to termination of tenancy by denial of lessor's title, see Kerr's Cyc. C. C. § 1933 and note par. 11. Action for possession lies without notice, when. — Sec Kerr's Cyc. C. C. § 793 and note. Deposit terminated by depositary, how. — See Kerr's Cyc. C. C. §§ 1854, 1855 and notes. Exercise of option to purchase by lessee under lease. — See Kerr's Cyc. C. C. § 1945 and note par. 5. Forcible detainer. — See Kerr's Cyc. C. C. P. § 1160 and note. Notice to quit. — See 42 A. D. 125-140. Re-entry, when and how to be made. — See Kerr's Cyc. C. C. § 791 and note, and Kerr's Cyc. C. C. P. §§ 1161, 1162 and notes. Rent may be increased by lessor upon giving notice, when. — See Kerr's Cyc. C. C. § 827 and note. Right of entry of lessee against sublessee at end of term. — See Kerr's Cyc. C. C. § 1933 and note par. 21. Tenancy at will terminated by notice. — See Kerr's Cyc. C. C. §§ 789, 790 and notes. Unlawful detainer,— See Kerr's Cyc. C. C. P. §§ 1161, 1162 and notes, 1013 § 1947 CIVIL CODE. [Div.III,Pt.IV. § 1947. RENT, WHEIV PAYABLE. 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 termination of the respective periods, as it successively becomes due. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 104 pars, annotation. As to alteration of contract by parol, see Kerr's Cyc. C. C. § 1925 and note par. 12. As to amendment changing form of action, see Kerr's Cyc. C. C. S 1947, note par. 73. As to effect of destruction where porfion of building is leased, see Kerr's Cyc. C. C. § 1933 and note par. 15. As to estoppel of lessee to deny lessor's title, see Kerr's Cyc. C. C. § 1948 and note pars. 13 et seq. As to eviction being defense in action for rent, see Kerr's Cyc. C. C. § 1947, note pars. 41-43. As to computation of time, see Kerr's Cyc. C. C. § 10 and note. As to covenants which run with land, see Kerr's Cyc. C. C. §§ 1460, 1468 and notes. As to covenants running with land, see Kerr's Cyc. C. C. §§ 1460-1468 and notes. As to distinction between cropping contract and lease, see Kerr's Cyc. C. C. § 1925 and note. As to hiring of real property generally, see note § 1941, ante. As to invalidity of lease for immoral purposes, see Kerr's Cyc. C. C. § 1925 and note par. 65. As to lessor's duty to defend lessee's possession against unlawful claims, see Kerr's Cyc. C. C. § 1927 and note. As to oral agreement by lessor to repair, see Kerr's Cyc. C. C. § 1925 and note. As to payment of rent to lessor before notice of assignment by lessee, see Kerr's Cyc. C. C. § 1111 and note. As to protection of lessee who pays rent to grantor without notice of grant, see Kerr's Cyc. C. C. § 1111 and note. As to recovery back of money paid, see Kerr's Cyc. C. C. §1473 and note pars. 95-128. As to release of lessee from rent by eviction, see Kerr's Cyc. C. C. § 1947, note pars. 41-46. As to theory upon which action for rent is brought, see Kerr's Cyc. C. C. § 1947, note par. 58. As to hiring of real property generally, see note § 1941, ante. Abandonment of lease without lawful cause by lessee does not discharge from obligation to pay rent. — See 85 C. 119, 121, 24 ■ 1044 Tit.V.ch.II.] ATTORNMENT. § 1948 P. 633: 89 C. 464, 466, 26 P. 967, 23 A. S. 488, 91 C 223. 230. 27 P. 612, 14 L. 151, 157. See 22 Oreg. 566. 30 P. 430. 29 A. S. Accrual of liability for rent.— See 29 A. R. 218. 219. Action for use and occupation. — See 46 A. D. 289. 290. Agreement to reduce rent.— See Kerr's Cyc. C. C. § 192o and note par. 11. ^*:„o Contract of hiring may be upon any terms which parties choose.— See Kerr's Cyc. C. C. § 1925 and note. Destruction of leased building as affecting liability for rent.— See 22 L. 613-616. Execution sale— Rent from time of sale until redemption.— See Kerr's Cyc. C. C. P. § 707 and note. Forfeiture for breach of covenant to pay rent, and breaches of covenant generally—See Kerr's Cyc. C. C. P. § 1161 subds. 2, 3 and note. Infant's liability for rent.— See 18 A. S. 589-592. Offset for failure of lessor to make improvements and repairs. —See Kerr's Cyc. C. C. § 1941 and note pars. 14. 18. Partnership entered into between lessor and lessee.— See ■Kerr's Cyc. C. C. § 1933 and note par. 35. Property left on premises by outgoing lessee— Lessor is not liable for.— See Kerr's Cyc. C. C. § 1933 and note par. 36. Purchaser under executory contract of sale— Liability for rent.— See Kerr's Cyc. C. C. § 1925 and note pars. 45. 46. Rights and liabilities of tenant on destruction of leased build- ing._See 22 L. 613-616. Rights of grantees of rents and reversions to recover rent.— See Kerr's Cyc. C. C. § 821 and note. Sublessee's liability for rent. — See 11 L. 855. Unlawful detainer after default in payment of rent.— See Kerr's Cyc. C. C. P. § 1161 subd. 2 and note. Waiver of breach of covenant to make improvements and repairs.— See Kerr's Cyc. C. C. § 1941 and note. § 1948. A TT0R>3IE>T OF A TENAM TO A STRANGER. The attornment of a tenant to a stranger is void, unless it is made with the consent of the landlord, or in consequence of a judgment of a court of competent jurisdiction. History: Enacted March 21, 1872; founded upon Stats. 1855, p. 171, § 7. See Kerr's Cyc. C. C. for 53 pars, annotation. 58 P. 1, 3 (applied). As to hiring of real property generally, see note § 1941, ante. As to relation of landlord and tenant as affecting adverse possession, see Kerr's Cyc. C. C. P. § 326 and note. 1045 §§ 1949, 1950 CIVIL CODE. [Div.III,Pt.IV. Acceptance of lease by one in possession. — See 13 A. D. 68, 69. Acceptance of lease induced by fraud, mistake, etc. — See 13 A. D. 69. Bill of interpleader where adverse claims to rent asserted. — See Kerr's Cyc. C. C. § 1947 and note par. 29. Denial of landlord's title by tenant not permitted. — See Kerr's Cyc. C. C. P. § 1962 and note. Duration of estoppel. — See 69 A. D. 71. Estoppel to deny lessor's title. — See 13 A. D. 68-72. Grai-tj <-,f rents, reversions, and remainders without attorn- ments. — See Kerr's Cyc. C. C. § 1111 and note. Presumption of surrender and ouster from long-continued adverse holding. — See 13 A. D. 71, 72. Tenant can dispute landlord's title, when. — See 69 A. D. 510, 511. Termination of tenancy by refusal to recognize lessor as such. — See Kerr's Cyc. C. C. § 1933 and note. §1949. TENANT MUST DELIVER NOTICE SERVED ON HIM. Every tenant who receives notice of any proceeding to recover the real property occupied by him, or the posses- sion thereof, must immediately 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 damages which he may sustain by reason of any omission to inform him of the notice, or to deliver it to him [if] in writing. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 246. See Kerr's Cyc. C. C. for 3 pars, annotation. As to hiring of real property generally, see note § 1941, ante. Action against stranger to recover possession not incumbent on lessee.— See Kerr's Cyc. C. C. § 1927 and note par. 51. § 1950. LETTING PARTS OF ROOMS FORBIDDEN. One who hires part of a room for a dwelling is entitled to the whole of the room, notwithstanding 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 1046 Tit.V,Ch.III.] OBLIGATIONS OF LETTER. § 1955 the same landlord, is relieved from all obligation to pay rent to him while such double letting of any room continues. History: Enacted March 21, 1872. As to hiring of real property generally, see note § ^^^V ante. For CommiLioners- comment on this section, see Kerr s Cyc. . C. C. § 1950. note. 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. OBLIGATIONS OF LETTER OF PERSONAL PROP- ERTY. one who lets personal property must deliver it to the hirer, secure his quiet enjoyment thereof agamst all law- fu Claimants, put it into a condition fit for the purpose fo which he lets it, and repair all deterioration «^ -^^ - occasioned by the fault of the hirer and not the natuial result of its use. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. HIRE OF PERSONALTY— BAILMENTS. AS to action by bailor or ^^il^^ see 1 A^D^587. 588. ^^^^^^^^ As to trespass quare clausum ^^egit oy ^^^ entry on land during term, see Kerr s Cyc. C. C. 9 i» "Tctro'n'agai'nl't baiiee.-See 1 Obiter Dig. 200. fction alainst wrong-doer.-See 1 ObUer^J 200. ^^.^^^:'^i:^-^'^o:S^^!^ L-coid stor. age.— See 52 L. 106. c . i a p 21- 4 A C. 1083. Same— Liability for loss.— See 1 A. C. 21. 4 a. ^- lame-Same-For loss by ^-^^-^--f- ^^ ^^ ^6 . SAME. [BY SPECIAL REQUEST.] One who, by his own special request, induces another to intrust him with the performance of a service, must perform the same fully. In other cases, one who undertakes a gratuitous service may relinquish it at any time. History: Enacted March 21, 1872. 4 C. A. 598, 604, 88 P. 643 (voluntary agent must exercise good faith). As to borrower for use, degree of skill required, see ante § 1888. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 1976, note. § 1977. SAME. [UNDER WRITTEN POWER OF ATTOR- NEY.] A gratuitous employee, who accepts a written power of attorney, must act under it so long as it remains in force, or until he gives notice to his employer that he will not do so. History: Enacted March 21, 1872. § 1978. DUTIES OF EMPLOYEE FOR REWARD. One who, for a good consideration, agrees to serve another, must per- form the service, and must use ordinary care and diligence therein, so long as he is thus employed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 113 C. 97, 104, 45 P. 177 (applied). As to degree of skill required in employee, see post § 1983. As to employee's liability to employer for negligence, see post § 1990. As to skill employee must use, see post § 1984. § 1979. DUTIES OF EMPLOYEE FOR HIS OWN BENEFIT. One who is employed at his own request to do that which 1058 I Tit.VI,ch.T,art.III.] LIMIT OP CONTRACT. §§ 1980-1982 is more for his own advantage than for that of his employer, must use great care and diligence therein to protect the interest of the latter. History: Enacted March 21, 1872. §1980. CONTRACTS FOR SERVICE LIMITED TO TWO YEARS. A contract to render personal service, other than a contract of apprenticeship, as provided in the chapter on master and servant, cannot be enforced against the employee beyond the term of two years from the commencement of service under it; but if the employee voluntarily continues his service under it beyond that time, the contract may be referred to as affording a presumptive measure of the com- pensation. History: Enacted Marcli 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 413, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 3 pars, annotation. 139 C. 78, 81, 84, 70 P. 1017, 1018, 72 P. 717 (construed). As to apprenticeship, see Kerr's Cyc. C. C. §§ 264 et seq. and notes. As to master and servant, see Kerr's Cyc. C. C. §§ 2009 et seq. and notes. § 1981. EMPLOYEE 3IUST OBEY EMPLOYER. An em- ployee must substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 246. As to obedience required from factor, see Kerr's Cyc. C. C. § 2027 and note. § 1982. EMPLOYEE TO CONFORM TO USAGE. An em- ployee must perform his service in conformity to the usage of the place of performance, unless otherwise directed by his 1059 §§ 1983-1985 CIVIL CODE. [Div.III.Pt.IV. employer, or unless it is impracticable, or manifestly injuri- ous to his employer to do so. History: Enacted March 21, 1872. 99 C. 363, 371, 33 P. 916, 919 (applied). § 1983. DEGREE OF SKILL REQUIRED. An employee is bound _• exercise a reasonable degree of skill, unless his employer has notice, before employing him, of his want of skill. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 107 C. 206, 209, 40 P. 336 (applied). As to liability of agent or servant to third person for his own negligence or nonfeasance, see 28 L. 433. As to liability of agent or servant for torts under orders of his employer, see 50 L. 644. § 1984. MUST USE WHAT SKILL HE HAS. An employee is always bound to use such skill as he possesses, so far as the same is required, for the service specified. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 247. 107 C. 206, 209, 40 P. 336 (applied). As to responsibility of employee for substitute, see post § 1989. §1985. WHAT BELONGS TO EMPLOYER. Everything which an employee acquires by virtue of his employment, except the compensation, if any, which is due to him from his employer, belongs to the latter, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 138 C. 634, 638, 85 A. S. 233, 66 P. 12 (referred to); 1 C. A. 121, 124, 81 P. 713 (applied to gold found by employee in excavating mill-site). As to aerolite found on land, see Kerr's Cyc. C. C. § 659, note par. 2. As to inventions made by servant, rights of employer thereto, see 52 A. S. 820. 1060 i Tit.VI.ch.I.art.TIL] DUTY OF EMPLOYEE. §§ 1986-1989 § 1986. DUTY TO ACCOUNT. An employee must, on de- mand, render to his employer just accounts of all his trans- actions in the course of his service, as often as may be rea- sonable, and must, without demand, give prompt notice to his employer of everything which he receives for his account. History: Enacted March 21, 1872. 4 C. A. 347, 351, 87 P. 1105 (applied to contract of employment calling for equal division of all commissions on sale of real estate secured by employee). As to dishonesty of employee as affecting- right to wages, see note 13 L. 72. §1987. EMPLOYEE NOT BOUND TO DELIVER IVITH- OUT DEMAND. An employee who receives anything on' account of his employer, in any capacity other than that of a mere servant, is not bound to deliver it to him until demanded, and is not at liberty to send it to him from a distance, without demand, in any mode involving greater risk than its retention by the employee himself. History: Enacted March 21, 1872. As to duty of secretary of corporation to pay over, see Kerr's Cyc. C. C. § 1987, note. As to duty of servant to deliver to master, without demand, see post § 2014. § 1988. PREFERENCE TO BE GIVEN TO EMPLOYERS. An employee who has any business to transact on his own account, similar to that intrusted to him by his employer, must always give the latter the preference. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 247. See Kerr's Cyc. C. C. for 5 pars, annotation. § 1989. RESPONSIBILITY OF EMPLOYEE FOR SUBSTI- TUTE. An employee who is expressly authorized to employ a substitute is liable to his principal only for want of ordi- nary care in his selection. The substitute is directly responsi- ble to the principal. History: Enacted March 21, 1872. 1061 §§ 1990-1992 CIVIL CODE. [Div.III,Pt.IV. As to delegation of agent's authority, see Kerr's Cyc. C. C. §§ 2394 et seq. and notes. §1990. RESPONSIBILITY FOR NEGLIGENCE. An em- ployee who is guilty of a culpable degree of negligence is liable to his employer for the damage thereby caused to the latter; and the employer is liable to him, if the service is not gr^iaitous, for the value of such services only as are properly rendered. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 413, held unconstitutional, see history, § 4 ante. 78 C. 310, 314, 12 A. S. 58, 20 P. 715, 717, 3 L. 781. As to duties of master and servant with regard to rules pro- mulgated for the safe conduct of business, see 43 L. 305. § 1991. SURVIVING EMPLOYEE. Where service is to be rendered by two or more persons jointly, and one of them dies, the survivor must act alone, if the service to be rendered is such as he can rightly perform without the aid of the deceased person, but not otherwise. History: Enacted March 21, 1872. §1992. CONFIDENTIAL EMPLOYMENT. The obligations peculiar to confidential employments are defined in the title on trusts. History: Enacted March 21, 1872. As to trustees, etc., see title on ti-usts, Kerr's Cyc. C. C. §§ 2215 et seq. and notes. 1062 Tit.VI,ch.I,art.IV.] TERMINATION OP. §§ 1996, 1997 ARTICLE IV. TERMINATION OF EMPLOYMENT. § 1996. Termination by death, etc., of employer. § 1997. Employment, how terminated. § 1998. Continuance of service in certain cases. § 1999. Termination at will. § 2000. Termination by employer for fault. § 2001. Termination by employee for fault. § 2002. Compensation of employee dismissed for cause. § 2003. Compensation of employee leaving for cause. § 1996. TERMINATION BY DEATH, ETC., OF EMPLOYER. Every employment in which the power of the employee is not coupled with an interest in its subject is terminated by notice to him of: 1. The death of the employer; or, 2. His legal incapacity to contract. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 413, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 3 pars, annotation. 76 C. 508, 509, 18 P. 435, 436 (applied in connection with §1998); 89 C. 547, 550 (applied but erroneously cited as §1196), 26 P. 1095, 1096 (correct citation). As to termination of agency, see Kerr's Cyc. C. C. §§ 2355 et seq. and notes. As to termination of employment, see Kerr's Cyc. C. C. § 1997 and note. As to termination of employment by death of party, see 23 L. 712. § 1997. EMPLOYMENT, HOIY TERMINATED. Every em- ployment is terminated: 1. By the expiration of its appointed term; 2. By the extinction of its subject; 3. By the death of the employee; or, 4. By his legal incapacity to act as such. HLstory: Enacted March 21, 1872. 1063 §§ 1998-2t)00 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 3 pars, annotation. 89 C. 547, 550 (applied but erroneously cited as § 1197), 26 P. 1095, 1096 (correct citation); 124 C. 95, 98, 56 P. 795 (cited with other sections). As to termination of agency, see Kerr's Cyc. C. C. §§ 2355 et seq. and notes. As to termination of employment, see ante § 1996. § 199». COMfNUANCE OF SERVICE IN CERTAIN CASES. An employee, unless the term of his service has expired, or unless he has a right to discontinue it at any time without notice, must continue his service after notice of the death or incapacity of his employer, so far as is necessary to protect from serious injury the interests of the employer's successor in interest, until a reasonable time after notice of the facts has been communicated to such successor. The successor must compensate the employee for such service according to the terms of the contract of employment. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 76 C. 508, 509, 18 P. 435, 436 (applied). § 1999. TERMINATION AT WILL. An employment hav- ing no specified term may be terminated at the will of either party, on notice to the other, except where otherwise pro- vided by this title. HLsfory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 124 C. 95, 96, 56 P. 795 (referred to); 68 P. 101, 103 (agreement to give party "permanent" employment may be terminated at any time). § 2000. TERMINATION BY EMPLOYER FOR FAULT. An employment, even for a specified term, may be terminated at any time by the employer, in case of any wilful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued inca- pacity to perform it. History: Enacted March 21, 1872. 1064 I Tit.VI,ch.I,art.IV.] DISMISSAL FOR CAUSE. §§ 2001-2003 See Kerr's Cyc. C. C. for 4 pars, annotation. 69 C. 643, 646, 11 P. 581, 583 (applied). As to discliarge of employee under contract for permanent employment, see 35 L. 512. As to remedies of servant wrongfully discharged, see 43 A. D. 205; 58 A. R. 828; 51 A. S. 515. As to when seaman may be discharged, see post § 2050. As to when servant may be discharged, see post § 2015. As to wrongful discharge of seaman, see post § 2057. § 2001. TERMINATION BY EMPLOYEE FOR FAULT. An employment, even for a specified term, may be terminated by the employee at any time, in case of any wilful or permanent breach of the obligations of his employer to him as an employee. History: Enacted March 21, 1872. As to employee's compensation when he terminates employ- ment for cause, see Kerr's Cyc. C. C. § 2003 and note. §2002. COMPENSATION OF EMPLOYEE DISMISSED FOR CAUSE. An employee, dismissed by his employer for good cause, is not entitled to any compensation for services rendered since the last day upon which a payment became due to him under the contract. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 69 C. 643, 646, 11 P. 581, 583 (applied). As to when servant may be discharged, see post § 2015. §2003. COxMPENSATION OF EMPLOYEE LEAVING FOR CAUSE. An employee who quits the service of his employer for good cause is entitled to such proportion of the compensa- tion which would become due in case of full performance as the services which he has already rendered bear to the serv- ices which he was to render as full performance. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to liens for wages of persons employed as laborers on threshing machines, see Stats. 1885, p. 109, as construed in 116 C. 292, 48 P. 123. 1065 § 2009 CIVIL CODE. [Div.III.PtlV. As to right of servant to recover part performance — Entirety of contract, see 31 A. R. 100. As to right of wages on part performance of contract, see 24 L. 231. As to right to recover for services interrupted by sickness or death, see 16 L. 858. As to terminating employment by employees, see ante § 2001. CHAPTER II. PARTICULAR EMPLOYMENT. Article I. Master and Servant, §§ 2009-2015. II. Agents, §§2019-2022. III. Factors, §§ 2026-2030. IV. Shipmasters, §§ 2034-2044. V. Mates and Seamen, §§ 2048-2066. VI. Ship's Manager, §§ 2070-2072. ARTICLE I. MASTER AND SERVANT. § 2009. Servant, what. § 2010. Term of hiring. § 2011. Same. [Presumed to be monthly, when.] § 2012. Renewal of hiring. § 2013. Time of service. § 2014. Servant to pay over without demand. § 2015. When servant may be discharged. §2009. SERVANT, WHAT. A servant is one who is em- ployed to render personal service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 124 C. 95, 97 (referred to), 98 (construed), 56 P. 795; 131 C. 455, 459, 82 A. S. 366, 63 P. 721, 64 P. 106 (construed); 138 C. 116. 118, 70 P. 1065 (applied); 4 C. A. 347, 350, 87 P. 1105 (applied to contract of employment to sell real estate). 1066 TitVI,ch.II,art.I.] TERM— RENEWAI.. §§ 2010-2012 As to distinction between agent and servant, see 2 L. 192. As to fellow-servants train dispatchers, and otlier employees, see 18 A. S. 455. As to when relation of master and servant exists, see 22 A. S. 459. As to who are fellow-servants and who are not, see Kerr's Cyc. C. C. § 1970 and note. As to who are independent contractors, see Kerr's Cyc. C. C. § 1970 and note. As to who are laborers within meaning- of statutes protecting wages, see 18 L. 305. §2010. TERM OF HIRING. A servant is presumed to have been hired for such length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is- presumed to be for one year; a hiring at a daily rate, for one day; a hiring by piecework, for no specified term. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. Ill C. 313, 316, 43 P. 963 (applied); 124 C. 95, 97 (applied), 98 (construed), 56 P. 795; 127 C. 588, 592, 60 P. 45 (applied). § 2011. SAME. [PRESUMED TO BE MONTHLY, WHEN.] In the absence of any agreement or custom as to the term of service, the time of payment, or rate or value of wages, a servant is presumed to be hired by the month, at a monthly rate of reasonable wages, to be paid when the service is per- formed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. Ill C. 313, 317, 43 P. 963 (applied); 50 P. 397, 399 (court will not presume that there was no agreement when); 124 C. 95, 97 (applied), 98 (construed), 56 P. 795; 127 C. 588, 592, 60 P. 45 (applied). As to employer and employee generally, see Kerr's Cyc. C. C. §§ 1965 et seq. and notes. § 2012. RENEWAL OF HIRING. Where, after the expira- tion of an agreement respecting the wages and the term of service, the parties continue the relation of master and serv- 1067 §§ 2013-2015 CIVIL CODE. [Div.III,Pt.IV. ant, they are presumed to have renewed the agreement for the same wages and term of service. History; Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 89 C. 547, 550, 26 P. 1095, 1096 (applied); 145 C. 266, 267. 78 P. 736 (applied). § 2013. TIME OF SERVICE. The entire time of a domes- tic servant belongs to the master; and the time of other servants to such extent as is usual in the business in which they serve, not exceeding in any case ten hours in the day. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to statutory limitation of hours of labor, see note Hen. G. L., pp. 417-419; also 19 L. 141; 21 L. 796. §2014. SERVANT TO PAY OVER WITHOUT DEMAND. A servant must deliver to his master, as soon as with reason- able diligence he can find him, everything that he receives for his account, without demand; but he is not bound, without orders from his master, to send anything to .him through another person. History: Enacted March 21, 1872. As to employee not bound to deliver to employer without demand, see ante § 1987. § 2015. WHEN SERVANT MAY BE DISCHARGED. A mas- ter may discharge any servant, other than an apprentice, whether engaged for a fixed term or not: 1. If he is guilty of misconduct in the course of his service, or of gross immorality, though unconnected with the same; or, 2. If, being employed about the person of the master, or in a confidential position, the master discovers that he has been guilty of misconduct, before or after the commencement of 1068 Tit.VI,ch.II,art.II.] AGENTS, AUTHORITY. §§ 2019-2021 his service, of such a nature that, if the master had known or contemplated it, he would not have so employed him. History: Enacted March 21, 1872. As to compensation of employee dismissed for cause, see Kerr's Cyc. C. C. § 2002 and note. As to discharge of servant when justified by his absence without leave, see 55 A. R. 717. As to termination of employment, see ante § 2001. ARTICLE II. AGENTS. § 2019. Agent to conform to his authority. § 2020. Must keep his principal informed. § 2021. Collecting agent. § 2022. Responsibility of sub-agent. § 2019. AGENT TO CONFORM TO HIS AUTHORITY. An agent must not exceed the limits of his actual authority, as defined by the title on agency. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 68 C. 156, 162, 8 P. 824 (applied); 125 C. 613, 614, 58 P. 153 (applied). As to agents and agency, see Kerr's Cyc. C. C. §§ 2295 et seq. and notes, and particularly § 2330. §2020. MUST KEEP HIS PRINCIPAL INF0R3IED. An agent must use ordinary diligence to keep his principal informed of his acts in the course of the agency. History: Enacted March 21, 1,872. 71 C. 513, 532, 12 P. 570, 580 (applied to sales and conveyances of property by attorney, acting as agent). As to agents and agency, see Kerr's Cyc. C. C. §§ 2295 et seq. and notes. § 2021. COLLECTING AGENT. An agent employed to col- lect a negotiable instrument must collect it promptly, and 1069 §§ 2022-2027 CIVIL CODE. [Div.III.Pt.IV. take all measures necessary to charge the parties thereto, in case of its dishonor; and, if it is a bill of exchange, must pre- sent it for acceptance with reasonable diligence. History: Enacted March 21, 1872. As to ag-ents and agency, see Kerr's Cyc. C. C. §§ 2295 et seq. and notes. § 2022. RESPOTVSIBILITY OV SUB-AUENT. A mere agent of an agent is not responsible as such to the principal of the latter. HLstory: Enacted March 21, 1872. As to agents and agency, see Kerr's Cyc. C. C. §§ 2295 et seq. and notes. ARTICLE III. FACTORS. § 2026. Factor, what. § 2027. Obedience required from factor. § 2028. Sales on credit. § 2029. Liability of factor under guaranty commission. § 2030. Factor cannot relieve himself from liability. § 2026. FACTOR, WHAT. A factor is an agent who, in the pursuit of an independent calling, is employed by another to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser. History: Enacted March 21, 1872. 66 C. 459, 461, 6 P. 91 (construed); 22 P. 973, 974 (applied); 24 P. 120 (applied with other sections). As to factors, see Kerr's Cyc. C. C. §§ 2367-2369 and notes. As to factor's power to pledge principal's g-oods, see post §§ 2368, 2991. § 2027. OBEDIENCE REQUIRED FROM FACTOR. A fac- tor must obey the instructions of his principal to the same extent as any other employee, notwithstanding any advances he may have made to his principal upon the property con- 1070 Tit.VI,ch.II,art.III.] FACTOR, liability. §§2028-2030 signed to him, except that if the principal forbids him to sell at the market price, he may, nevertheless, sell for his reim- bursement, after giving to his principal reasonable notice of his intention to do so, and of the time and place of sale, and proceeding in all respects as a pledgee. History: Enacted March 21, 1872. 85 C. 376, 377, 24 P. 806, 807 (applied). As to factors, see Kerr's Cyc. C. C. §§ 2367-2369 and notes. As to obedience required from employees generally, see ante § 1981. §2028. SALES ON CREDIT. A factor may sell property consigned to him on such credit as is usual; but, having once^ agreed with the purchaser upon the term of credit, may not extend it. History: Enacted March 21, 1872. As to factors, see Kerr's Cyc. C. C. §§ 2367-2369 and notes. As to duty of factor to inquire into the responsibility of the purchaser, see Kerr's Cyc. C. C. § 2368 and note. §2029. LIABILITY OF FACTOR UNDER GUARANTY COMMISSION. A factor who charges his principal with a guaranty commission upon a sale, thereby assumes absolutely to pay the price when it falls due, as if it were a debt of his own, and not as a mere guarantor for the purchaser; but he does not thereby assume any additional responsibility for the safety of his remittance of the proceeds. History: Enacted March 21, 1872. 53 P. 693, 697 (factor is liable for price when it becomes due, though he was purchaser). As to factors, see Kerr's Cyc. C. C. §§ 2367-2369 and notes. §2030. FACTOR CANNOT RELIEVE HIMSELF FROM LIABILITY. A factor who receives property for sale, under a general agreement or usage to guarantee the sales or the remittance of the proceeds, cannot relieve himself from responsibility therefor without the consent of his principal. History: Enacted March 21, 1872. As to factors, see Kerr's Cyc. C. C. §§ 2367-2369 and notes. 1071 §§ 2034-2037 CIVIL CODE. [Div.III.Pt.IV. ARTICLE IV. SHIPMASTERS. § 2034. Appointment of master. § 2035. When must be on board. § -'ijao Pil'.tage. § 2037. Power of master over seamen. § 2038. Power of master over passengers. § 2039. Impressing private stores. § 2040. Wlien may abandon the ship. § 2041. Duties on abandonment. § 2042. When master cannot trade on his own account. § 2043. Care and diligence. § 2044. Authority of master. §2034. APPOINTMENT OF MASTER. The master of a ship is appointed by the owner, and holds during his pleasure. History: Enacted March 21, 1872. Master dismissed, being one of owners, right to renounce interest and demand value, see Kerr's Cyc. C. C. § 2034, note. §2035. WHEN MUST BE ON BOARD. The master of a ship is bound to be always on board when entering or leaving a port, harbor, or river. History: Enacted Marcli 21, 1872, founded upon Code de Com. art. 227. § 2036. PILOTAGE. On entering or leaving a port, harbor, or river, the master of a ship must take a pilot if one offers himself, and while the pilot is on board the navigation of the ship devolves on him. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. Pilot and pilot commissioners — Duties and regulations of. — See Kerr's Cyc. Pol. C. §§ 2429-2491, particularly § 2436. § 2037. POWER OF MASTER OVER SEAMEN. The master of a ship may enforce the obedience of the mate and seamen 1072 Tit.VI,ch.II,art.IV.] POWER OF MASTER. §§2038-2041 to his lawful commands bj' confinement and other reasonable corporal punishment, not prohibited by acts of Congress, being responsible for the abuse of his power. History: ^^nacted March 21. 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. § 2038. POWER OF MASTER OVER PASSENGERS. The master of a ship may confine any person on board, during a voyage, for wilful disobedience to his lawful commands. History: Enacted March 21, 1872. As to imprisonment of passenger by master, see Kerr's Cyc. C. C. § 2038, note. §2039. IMPRESSING PRIVATE STORES. If, during a voyage, the ship's supplies fail, the master, with the advice of the officers, may compel persons who have private sup- plies on board to surrender them for the common want, on payment of their value, or giving security therefor. History: Enacted March 21, 1872, founded upon Code de Com. art. 249. § 2040. WHEN MAY ABANDON THE SHIP. The master of a ship must not abandon it during the voyage, without the advice of the other officers. History: Enacted March 21, 1872. As to jettison, see Kerr's Cyc. C. C. §§ 2040, 2149 and notes. §2041. DUTIES ON ABANDONMENT. The master of a ship, upon abandoning it, must carry with him, so far as it is in his power, the money and the most valuable of the goods on board, under penalty of being personally responsible. If the articles thus taken are lost from causes beyond his con- trol, he is exonerated from liability. History: Enacted March 21, 1872, founded upon Code de Com. art. 241. 1073 §§ 2042-2044 CIVIL CODE. [Div.III,Pt.IV. §2042. WHEJf MASTER CANNOT TRADE ON HIS OWN ACCOUNT. The master of a ship, who engages for a com- mon profit on the cargo, must not trade on his own account, and if he does, he must account to his employer for all profits thus made by him. History: Enacted March 21, 1872. See Code de Com. arts. 239, 24U. §2043. CARE AND DILIGENCE. The master of a ship must use great care and diligence in the performance of his duties, and is responsible for all damage occasioned by his negligence, however slight. History: Enacted March 21, 1872. § 2044. AUTHORITY OF MASTER. The authority and lia- bility of the master of a ship, as an agent for the owners of the ship and cargo, are regulated by the title on agency. History: Enacted March 21, 1872. As to agency in general, see Kerr's Cyc. C. C. §§ 2295 et seq. and notes. As to authority over seamen and passengers, see Kerr's Cyc. C. C. §§ 2037, 2038 and notes. As to respondentia — Master's hypothecation upon, see Kerr's Cyc. C. C. § 3038 and note. Bottomry, hypothecation by master upon, see Kerr's Cyc. C. C. §§ 3019 et seq. and notes. 1074 Tit.VI,ch.II,art.V.] MATE, SEAMEN. §§ 2048-2050 ARTICLE V. MATES AND SEAMEN. § 2048. Mate, what. § 2049. Seamen, what. § 2050. Mate and seamen, how engaged and discharged. § 2051. Unseaworthy vessel. § 2052. Seamen not to lose wages or lien by agreement. § 2053. Special agreement with seamen. § 2054. Wages depend on freightage. § 2055. When wages, etc., begin. § 2056. Wages, where voyage is broken up before departure. § 2057. Wrongful discharge. § 2058. Wages, when not lost by wreck. § 2059. Certificate. § 2060. Disabled seamen. § 2061. Maintenance of seamen during sickness. § 2062. Death on the voyage. § 2063. Theft, etc., forfeits wages. § 2064. Seamen cannot ship goods. § 2065. Embezzlement and injuries [repealed]. § 2066. Law governing seamen. §2048, MATE, WHAT. The mate of a ship is the officer next in rank to the master, and in case of the master's dis- ability he must take his place. By so doing he does not lose any of his rights as mate. History: Enacted March 21, 1872. §2049. SEAMEN, WHAT. All persons employed in the navigation of a ship, or upon a voyage, other than the mas- ter and mate, are to be deemed seamen within the provisions of this code. History: Enacted March 21, 1872. As to mate succeeding master by virtue of his office, see Kerr's Cyc. C. C. § 2048, note. § 2050. MATE A>D SEAMEN, HOW ENGAGED AND DIS- CHARGED. The mate and seamen of a ship are engaged by the master, and may be discharged by him at any period of 1075 §§ 2051-2054 CIVIL CODE. [Div.III.Pt.IV. the voyage, for wilful and persistent disobedience or gross disqualification, but cannot otherwise be discharged before the termination of the voyage. HLstory: Enacted March 21, 1872. §2051. UNSEAWORTHY VESSEL. A mate or seaman is [are] ul/l bound to go to sea in a ship that is not seaworthy; and if there is reasonable doubt of its seaworthiness, he may refuse to proceed until a proper survey has been had. History: Enacted March 21, 1872. As to seaworthiness, see Kerr's Cyc. C. C. §§ 2051, 2682 and notes. §2052. SEAMEN NOT TO LOSE UAGES OR LIEN BY AGREEMENT. A seaman cannot, by reason of any agree- ment, be deprived of his lien upon the ship, or of any remedy for the recovery of his wages to which he would otherwise have been entitled. Any stipulation by which he consents to abandon his right to wages in case of the loss of the ship, or to abandon any right he may have or obtain in the nature of salvage, is void. HLstory: Enacted March 21, 1872. As to wag-es in case of loss of ship, see post § 2059. § 2053. SPECIAL AGREEMENT WITH SEAMEN. No spe- cial agreement entered into by a seaman can impair any of his rights, or add to any of his obligations, as defined by law, unless he fully understands the effect of the agreement, and receives a fair compensation therefor. HLstory: Enacted March 21, 1872. §2054. WAGES DEPEND ON FREIGHTAGE. Except as hereinafter provided, the wages of seamen are due when, and so far only as, freightage is earned, unless the loss of freight- age is owing to the fault of the owner or master. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 1076 Tit.VI,ch.II,art.V.] WAGES. §§ 2055-2059 §2055. WHEX WAGES, ETC., BEGI>. The right of a mate or seaman to wages and provisions begins either from the time he begins work, or from the time specified in the agreement for his beginning work, or from his presence on board, whichever first happens. History: Enacted March 21, 1872, founded upon 13 and 14 Vic, c. 93, § 56. §2056. WAGES, WHERE VOYAGE IS BROKEN UP BE- FORE DEPARTURE. Where a voyage is broken up before departure of the ship, the seamen must be paid for the time they have served, and may retain for their indemnity such advances as they have received. Hi.story: Enacted March 21, 1872, modified from Code de Com. art. 252. §2057. WRONGFUL DISCHARGE. When a mate or sea- man is wrongfully discharged, or is driven to leave the ship by the cruelty of the master on the voyage, it is then ended with respect to him, and he may thereupon recover his full wages. History: Enacted March 21, 1872. As to cruelty of master, see Kerr's Cyc. C. C. § 2057, note. § 2058. WAGES, WHEN >0T LOST BY W RECK. In case of loss or wreck of the ship, a seaman is entitled to his wages up to the time of the loss or wreck, whether freightage has been earned or not, if he exerts himself to the utmost to save the ship, cargo, and stores. History: Enacted March 21, 1872, substantially same as Stats. 7 and 8 Vic, c. 112, § 17. For Commissioners' Comment on this section, see Kerr's Cyc. C. C. § 2058, note. § 2059. CERTIFICATE. A certificate from the master or chief surviving officer of a ship, to the effect that a seaman exerted himself to the utmost to save the ship, cargo, and stores, is presumptive evidence of the fact. History: Enacted March 21, 1872. 1077 §§ 2060-2064 CIVIL CODE. [Div.III.Pt.IV. §2060. DISABLED SEAMAN. Where a mate or seaman is prevented from rendering service by illness or injury, incurred without his fault in the discharge of his duty on the voyage, or by being wrongfully discharged, or by a capture of the ship, he is entitled to wages notwithstanding; but in case of a capture, a ratable deduction for salvage is to be made. History: Enacted March 21, 1872. § 2061. MAIISTENANCE OF SEAMEX DURING SICKNESS. If a mate or seaman becomes sick or disabled during the voy- age, without his fault, the expense of furnishing him with suitable medical advice, medicine, attendance, and other pro- vision for his wants, must be borne by the ship till the close of the voyage. History: Enacted March 21, 1872. § 2062. DEATH ON THE VOYAGE. If a mate or seaman dies during the voyage, his personal representatives are enti- tled to his wages to the time of his death, if he would have been entitled to them had he lived to the end of the voyage. History: Enacted March 21, 1872. As to death during voyage of seaman on monthly wage, see Kerr's Cyc. C. C. § 2062, note. §2063. THEFT, ETC., FORFEITS WAGES. Desertion of the ship without cause, or a justifiable discharge by the mas- ter during the voyage, for misconduct, or a theft of any part of the cargo or appurtenances of the ship, or a wilful injury thereto or to the ship, forfeits all wages due for the voyage to a mate or seaman thus in fault. History: Enacted March 21, 1872. § 2064. SEAMAN CANNOT SHIP GOODS. A mate or sea- man may not, under any pretext, ship goods on his own account without permission from the master. History: Enacted March 21, 1S72, founded upon Code de Com. art. 251. 1078 Tit.VI,ch.II,art.VI-] MANAGER. §§ 2065-2072 §2065. EMBEZZLEMENT AND INJURIES (repealed). History: Enacted March 21, 1872; repealed March 30. 1874, Code Amdts. 1873-4, p. 247. §2066. LAW GOVERNING SEAMEN. The shipment of officers and seamen, and their rights and duties, are further regulated by acts of Congress. History: Enacted March 21, 1872. ARTICLE VI. SHIP'S MANAGERS. § 2070. Manager, what. § 2071. Duties of manager. § 2072. Compensation. §2070. MANAGER, WHAT. The general agent for the owners, in respect to the care of a ship and freight, is called the manager. If he is a part owner, he is also called the managing owner. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 121 C. 564, 569, 570, 66 A. S. 65, 54 P. 89 (referred to). § 2071. DUTIES OF MANAGER. Unless otherwise directed, it is the duty of the manager of a ship to provide for the com- plete seaworthiness of a ship; to take care of it in port; to see that it is provided with necessary papers, with a proper master, mate, and crew, and supplies of provisions and stores. History: Enacted March 21, 1872. 121 C. 564, 569, 66 A. S. 65, 54 P. 89 (construed with other sec- tions). § 2072. COMPENSATION. A managing owner is presumed to have no right to compensation for his own services. History: Enacted March 21, 1872. 1079 §§ 2078, 2079 CIVIL CODE. [Div.III,Pt.IV. CHAPTER III. SERVICE WITHOUT EMPLOYMENT. § 2078. Voluntary interference with property. § 2079. Salvage. §207s. VOMXTARY INTERFERENCE WITH PROP- ERTY. One who officiously, and without the consent of the real or apparent owner of a thing, takes it into his possession for the purpose of rendering a service about it, must com- plete such service, and use ordinary care, diligence, and rea- sonable skill about the same. He is not entitled to any com- pensation for his service or expenses, except that he may deduct actual and necessary expenses incurred by him about such service from any profits which his service has caused the thing to acquire for its owner, and must account to the owner for the residue. History: Enacted March 21, 1872. As to employment without reward, see Kerr's Cyc. C. C. §§ 1975 et seq. and notes. As to gratuitous carriers, see post § 2089. As to gratuitous services, and what are deemed to be such, see 53 A. D. 306. § 2079. SALVAGE. Any person, other than the master, mate, or a seaman thereof, who rescues a ship, her appurte- nances or cargo, from danger, is entitled to a reasonable com- pensation therefor, to be paid out of the property saved. He has a lien for such claim, which is regulated by the title on liens; but no claim for salvage, as such, can accrue against any vessel, or her freight, or cargo, in favor of the owners, officers, or crew of another vessel belonging to the same owners; but the actual cost[s] at the time of the services ren- dered by one such vessel to another, when in distress, are payable through a general average contribution on the prop- erty saved. HLstory: Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 247; amended by Code Commission Aqt March 16, 1901, Stats, and Amdts. 1900-1, p. 413, held unconstitu- tional, see history, § 4 ante. 1080 Tit III.ch.L] CARRIAGE, CONTRACT. § 2085 TITLE VII. CARRIAGE. 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. CHAPTER I. CARRIAGE IN GENERAL. § 2085. Contract of carriage. § 2086. Different kinds of carriers. § 2087. Marine and inland carriers, what. § 2088. Carriers by sea. § 2089. Obligations of gratuitous carriers. § 2090. Obligations of gratuitous carrier wlio has begun to carry. § 2085. COMRACT OF CARRIAGE. The contract of car- riage is a contract for the conveyance of property, persons, of messages, from one place to another. Hi-story: Enacted March 21, 1872. As to bills of lading, see Kerr's Cyc. C. C. §§ 2126 et seq. and As to carriers of messages, see Kerr's Cyc. C. C. §§2161, 2162 and notes. , As to carriage of persons witliout reward, see Kerr s Cyc. C. C. § 2096 and note. As to change of liability of carrier of property from that of carrier to warehouseman, and requirement of notice to con- signee on arrival of freight for that purpose, see Kerr's Cyc. C. C. § 2120 and note. ^ As to common carriers generally, see Kerr's Cyc. C. C. H -168- 2177 and notes. As to common carriers of persons, see Kerr's Cyc. C. C. §§ 2096, 2100, 2180-2191 and notes. As to common carriers of property, liability, etc., see Kerr s Cyc C C §§ 2114, 2168, 2194 et seq. and notes. 1081 §§ 2086, 2087 CIVIL CODE. [Div.III,Pt.IV. As to duties and obligations of carriers of persons for reward, see Kerr's Cyc. C. C. §§ 2100-2104 and notes. As to duties and obligations of carriers of property for reward, see Kerr's Cyc. C. C. §§ 2114-2121 and notes. As to freightage, liens therefor, etc., see Kerr's Cyc. C. C. §§ 2110, 2136-2144 and notes. As to general average, see Kerr's Cyc. C. C. §§ 2148-2155 and notes. As to iumud cf rriers in general, see Kerr's Cyc. C. C. §§ 2096, 2100, 2114, 2168 and notes. As to limitations of common carriers' liability, see Kerr's Cyc. C. C. §§ 2174, 2175, 2176, and 2200 and notes. As to marine carriers, see Kerr's Cyc. C. C. §§ 2088, 2100, 2168 and notes. §2086. DIFFERENT KINDS OF CARRIERS. Carriage is either: 1. Inland; or, 2. Marine. History: Enacted March 21, 1872. As to inland carriers in general, see references ante § 2085. As to marine carriers in general, see Kerr's Cyc. C. C. § 2085 and note, and post § 2088. § 2087. MARINE AND INLAND CARRIERS, WHAT. Car- riers upon the ocean and upon arms of the sea are marine carriers. All others are inland carriers. History: Enacted March 21, 1872. As to apportionment of losses caused by collision of marine carriers, see Kerr's Cyc. C. C. § 973 and note. As to bottomry contracts, see Kerr's Cyc. C. C. §§ 2017 et seq. and notes. As to bridge, ferry, wharf, chute, and pier corporations, see Kerr's Cyc. C. C. §| 528 et seq. and notes. As to carriers by land, see 47 A. D. 650. As to compensation for salvage, see Kerr's Cyc. C. C. § 2079 and note. As to duties and authority of shipmasters, see Kerr's Cyc. C. C. §§ 2034-2044 and notes. As to duties of shipmasters, see Kerr's Cyc. C. C. §§ 2034-2044 and notes. As to embezzlement of property by carriers, see Kerr's Cyc. Pen. C. § 505 and note. 1082 Tit.VII,ch.L] CARRIER BY SEA. § 2088 As to jettison and general average, see Kerr's Cyo. C. C. §§ 2048-2055 and notes. As to laws governing seamen, see Kerr's Cyc. C. C. §§ 2048- 2066, 2088 and notes. As to liability of marine carriers, see Kerr's Cyc. C. C. § 2197 and note. As to liability and duties of shipmasters and pilots, see Kerr's Cyc. C. C. §§ 2373-2385 and notes. As to marine insurance, see Kerr's Cyc. C. C. §§ 2655 et seq. and notes. As to national and state regulations in general, see Kerr's Cyc. C. C. § 2088 and note. As to navigation, foreign and domestic, definition of, see Kerr's Cyc. C. C. §§ 962, 963 and notes. As to offense by common carrier in transporting or taking game, etc., out of state, see Kerr's Cyc. Pen. C. §§ 627a, 627b and notes. As to powers, etc., of ship's manager, see Kerr's Cyc. C. C. §§ 2388, 2389 and notes. As to registry, enrolment, and license of ships, see Kerr's Cyc. C. C. § 966 and note. As to respondentia contracts, see Kerr's Cyc. C. C. § 3036 and note. As to rules of navigation, collisions, etc., see Kerr's Cyc. C. C. § 970 and notes. As to seaworthiness, definition, see Kerr's Cyc. C. C. § 2682 and note. As to ships and shipping, definition of, see ante § 960. As to ships as common carriers, see 47 A. D. 651, 652. As to ship's managers and their duties, see Kerr's Cyc. C. C. §§ 2070, 2071 and notes. As to street railroad corporations, see Kerr's Cyc. C. C. §§ 497-511 and notes. As to telegraph and telephone corporations, see Kerr's Cyc. C. C. § 536 and note. As to wagon and road corporations, see Kerr's Cyc. C. C. §§ 512 et seq. and notes. As to water and canal corporations, see Kerr's Cyc. C. C. §§ 548 et seq. and notes. §2088. CARRIERS BY SEA. Rights and duties peculiar to carriers by sea are defined by acts of Congress. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 34 pars, annotation. As to charterer of vessel, when deemed owner, see U. S. Rev. Stats. § 4286, 4 F. S. A. 851 and note. 1083 § 2088 CIVIL CODE. [Div.III.Pt.IV. As to Chinese Exclusion Acts, see act of Congress April 22, 1902, eh. 641, 32 Stats, at L. 176, 1 Fed. Stats. Ann. 755-758; act of March 3, 1901, ch. 845, 31 Stats, at L. 1093; act of November 3, 1893, ch. 14, 28 Stats, at L. 7; act of May 5, 1892, ch. 60, 27 Stats, at L. 25; act of October 1, 1888, ch. 1064, 25 Stats, at L. 504; act of September 13, 1888, ch. 1015, 25 Stats, at L. 476; act of May 6. 1882, ch. 126, 22 Stats, at L. 58, amended by act of July 5, 1884, ch. 220, 23 Stats, at L. 115, 1 F. S. A. 754-784 and notes. As to clearance and entry of vessels, see U. S. Rev. Stats. §§ 4197-4218; 7 F. S. A. 45-50 and notes. As to crimes and offenses relating to concealment or destruc- tion of invoices, evading legal duties, entry of goods upon false classification, etc., see U. S. Rev. Stats. §§5443-5445; 2 F. S. A. 773 and notes. As to customs duties, see Tariff Act July 24, 1897, ch. 11, 30 Stats, at L. 151, 2 F. S. A. 391; also generally U. S. Rev. Stats. §§ 2766-3094, and act of October 1, 1-890, ch. 1244, 26 Stats, at L. 567. As to duties of ship's managers and managing owners, see Kerr's Cyc. C. C. §§ 2070-2072 and notes. As to exemptions from liability for loss at sea, see Kerr's Cyc. C. C. § 2197 and note. As to immigration from foreign countries in general, see U. S. Rev. Stats. §§ 2158-2164, 3 F. S. A. 290. As to limitation of liability of masters, owners, etc., as car- riers, see U. S. Rev. Stats. §§ 4281-4289; also act of June 26, 1884, ch. 121, 23 Stats, at L. 57; also act of February 13, 1893, ch. 105, 27 Stats, at L. 445. As to navigation in general, see U. S. Rev. Stats. §§ 4233-4251; also act of March 3, 1897, ch. 389, 29 Stats, at L. 687. As to navigation of vessels, bills of lading, and to certain obligations, duties, and rights in connection with carriage of property, see U. S. act of February 13, 1893, ch. 105, 27 Stats, at L. 445. As to quarantine regulations, see U. S. Rev. Stats. §§ 4792-4800; also act of Congress April 29, 1878, ch. 66, 20 Stats, at L. 37; act of August 1, 1888, ch. 727, 25 Stats, at L. 355; act of March 27, 1890, ch. 51, 26 Stats, at L. 31; act of February 15, 1893, ch. 114, 27 Stats, at L. 449. As to registry and recording of vessels, see U. S. Rev. Stats. §§ 4131-4196, 7 F. S. A. 10-45 and notes. As to regulating carriage of passengers by sea, see act of August 2, 1882, ch. 374, 22 Stats, at L. 186, amended by act of March 2, 1889, and act of February 8, 1895, 28 Stats, at L. 643. As to regulation of steam vessels, see U. S. Rev. Stats. §§ 4399- 4462, 7 F. S. A. 161 et seq. As to regulation of vessels engaged in domestic commerce, see U. S. Rev. Stats. §§ 4311-4390, 7 F. S. A. 56 et seq. 1084 Tit.VII.ch.I.] GRATUITOUS CARRIERS. §§2089,2090 As to regulation of vessels engaged in foreign commerce, see U. S. Rev. Stats. §§ 4306-4310, 7 F. S. A. 53-55. As to regulation for preventing collision, see act of Congress of August 19, 1890, ch. 802, 26 Stats, at L. 320, amended act of May 28, 1894, ch. 83, 28 Stats, at L. 82, and further amended by act of June 10, 1896, 26 Stats, at L. 381. As to regulations applicable to inland waters, see act of Con- gress of June 7. 1897, ch. 4, 30 Stats, at L. 96, 2 F. S. A. 173. As to regulation of commerce with Canada and Mexico, see U. S. Rev. Stats. §§ 3095-3129, 2 F. S. A. 762-772 and notes. As to remedies against masters, owners, etc., for embezzle- ment, etc., see U. S. Rev. Stats. § 4289, 4 F. S. A. 852. As to requirement that all ofRcers of vessels of U. S. registry be citizens of United States, see U. S. Rev. Stats. § 1431, 5 F. S. A. 278. As to shipmasters, pilots and ship's managers, see Kerr's Cyc. C. C. §§ 2373-2389 and notes. As to state regulation of immigration, see Kerr's Cyc. Pol. C. §§ 2949-2969 and notes. As to transportation of nitroglycerin and other dangerous explosives or inflammable materials, and offenses related thereto, see U. S. Rev. Stats. §§ 4278, 4279, 4280, 4288, 5353, 5354. and 5355, 1 F. S. A. 719, 720. As to transportation of passengers and merchandise by marine carriers, see U. S. Rev. Stats. §§ 4463-4500, 7 F. S. A. 181-198. § 2089. OBLIG.VTIONS OF GR.VTlITOrS CARRIERS. Car- riers without reward are subject to tiie same rules as em- ployees without reward, except so far as is otherwise pro- vided bj' this title. History: Enacted March 21, 1872. As to carriers of persons without reward, see Kerr's Cyc. C. C. § 2096 and note. As to duties of employees without reward, see Kerr's Cyc. C. C. §§ 1975, 1976, 1977 and notes. As to duty of one who undertakes a service without employ- ment, see Kerr's Cyc. C. C. § 2078 and note. §2090. OBLIGATIONS OF GRATIITOIS CARRIER AVHO HAS BEGUN TO CARRY. A carrier without reward, who has begun to perform his undertaking, must complete it in like manner as if he had received a reward, unless he restores 1085 § 2096 CIVIL. CODE. [Div.III.Pt.IV. the person or thing carried to as favorable a position as before he commenced the carriage. Hifstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to duties, etc., of mere depositary without reward, see Kerr'r. Cyc. C. C. §§ 1844-1847 and notes. As to liability of gratuitous bailee for safety of property, see 53 A. D. 581. As to obligations and duties of carriers of persons for reward, see Kerr's Cyc. C. C. § 2100 and note. As to obligations and duties of carriers of property for reward, see Kerr's Cyc. C. C. § 2114 and note. CHAPTER II. CARRIAGE OF PERSONS. Article I. Gratuitous Carriage, § 2096. II. Carriage for Reward, §§ 2100-2104. ARTICLE I. GRATUITOUS CARRIAGE OF PERSONS. § 2096. Degree of care required. § 2096. DEGREE OF CARE REQUIRED. A carrier of per- sons without reward must use ordinary care and diligence for their safe carriage. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. As to degrees of negligence, see 32 A. D. 502; 7 Am. R. R. & Corp. Rep. 298, 299. As to distinction between gross negligence and slight negli- gence under our code with respect to transmission and delivery of messages, etc., see Kerr's Cyc. C. C. § 2162 and note. As to gross negligence in the carriage of persons or of prop- erty, see Kerr's Cyc. C. C. § 2175 and note. As to passengers carried gratuitously, in general, see 61 A. D. 109; 61 A. S. 87, 89; 5 L. 820, 7 Am. R. R. & Corp. Rep. 299, and note 31 C. C. A. 157, 164. 1086 i Tit.VII,ch.II,art.II.] OP PASSENGERS. § 2100 ARTICLE II. CARRIAGE FOR REWARD. I 2100. General duties of carrier. § 2101. Vehicles. § 2102. Not to overload his vehicle. § 2103. Treatment of passengers. § 2104. Rate of speed and delays. §2100. GENERAL DUTIES OF CARRIER. A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 207 pars, annotation. 63 C. 431, 433 (construed and applied); 89 C. 399, 405, 26 P. 894, 895 (construed and applied); 137 C. 280, 281, 92 A. S. 171, 174, 70 P. 169 (construed and applied); 147 C. 178, 182, 81 P. 531; 150 C. 741, 745, 746, 90 P. 125 (section, in substance, embodies pre-existing- law); 151 C. 534, 537, 91 P. 481 (what instruction is equivalent, and no more than equivalent, of rule announced by this section); 4 C. A. 745, 747, 89 P. 367 (applied). CARRIERS OF PASSENGERS. As to accidents due to "act of God," etc., and presumption relating thereto, see Kerr's Cyc. C. C. §1511, note pars. 2-13; § 2194 and note: also note § 2114, post. As to action for death of child not passenger, see Kerr's Cyc. C. C. P. §§ 376, 377 and notes. As to admission of testimony of physicians or surgeons in case of injury due to negligence of carrier, see Kerr's Cyc. C. C. P. § 1881 subd. 4 and note. As to admissions made as affecting liability for negligence, see Kerr's Cyc. C. C. P. § 1870 subd. 2 and § 2061 subd. 4 and notes. As to baggage, see note § 2180, post. As to carrier's liability for injury or death of employee, see Kerr's Cyc. C. C. §§ 1969-1971 and notes. As to carriers not liable as insurers of life or safety of pas- sengers, see 2 L. 252. As to carriers not liable for injuries resulting from inevitable accident, see 2 L. 252. 1087 § 2100 CIVIL CODE. [Div.IIl'.Pt.IV. As to children jumping on and off trains in motion, see 21 L. 355, 356. As to common carrier's liability for torts to passengers, see I L. 143; 3 L. 635, 636; 12 L. 113; 12 L. 337-339; 14 L. 737-740. As to complaint in action for damages for wrongful expulsion, see Kerr's Cyc. C. C. § 2188 and note. As to connecting lines, negligence of connecting carriers, etc., s^e Kerr's Cyc. C. C. § 2201 and note. As to damages arising from deviation from route, delays, etc., see Kerr's Cyc. C. C. § 2104 and note. As to damages for death of person not minor, and recovery thereof by personal representative, see Kerr's Cyc. C. C. P. § 377 and note. , As to damages for injuries received while waiting for train, see Kerr's Cyc. C. C. § 3333 and note. As to damages for wrongful expulsion, see Kerr's Cyc. C. C. § 2188 and note. As to damages, measure of, for death of child not passenger, see Kerr's Cyc. C. C. § 3333 and note. As to defects in vehicles, machinery, etc., see Kerr's Cyc. C. C. § 2101 and note. As to detriment caused by breach of carrier's obligation to accept passengers, etc., see Kerr's Cyc. C. C. § 3315 and note. As to discrimination against persons on account of race or color, see 11 A. S. 651. As to distinction in liability between carriers of goods and passenger carriers, see 2 L. 84 and 252. As to duty of railroads to furnish safe stations and plat- forms, see 7 L. 111. As to duty of railroads to give stop-over privileges, see Kerr's Cyc. C. C. § 490 and notes, and generally as to right of passenger to such privileges, see 28 L. 773-776. As to exemplary or vindictive damages generally, see Kerr's Cyc. C. C. § 3294 and note. As to injuries caused by want of ordinary care or skill in management of property, see Kerr's Cyc. C. C. § 1714 and note. As to liability for injuries caused by defective platform, see II L. 721. As to liability for injury to passenger alighting from train, see 7 L. 112. As to liability of carrier for false arrest or malicious prosecu- tion of passengers, see 14 L. 793-796. As to liability of carriers of passengers as affected by con- tract, see Kerr's Cyc. C. C. §§ 2174, 2175 and notes. As to liability of common carriers for injuries to passengers, generally, see 43 A. D. 355-367; 61 A. D. 109. As to measure of care required of, see 2 L. N. S. 645; 3 L. N. 1088 Tit.VII,ch.II,art.II.] PASSENGERS, GENERALLY. § 2100 S. 218; 4. L. N. S. 122; 4 L. N. S. 399; 4 L. N. S. 729; 4 L. N. S. 947; 5 L.'n. S. 721; 12 L. N. S. 197; 12 L. N. S. 840. As to negligence of carriers and injuries to persons on high- ways or streets, see Kerr's Cyc. C. C. §§ 486, 3333 and notes. As to negligence of carriers respecting injuries to person not passenger, see Kerr's Cyc. C. C. § 3333 and note. As to parol agreement to vary contract of carrier, see 56 A. S. 663. As to passengers on freight trains, special trains, etc., see 61 A. S. 95, 96; 19 L. 310, 311. As to passengers temporarily leaving vehicle before com- pletion of journey, see 2 L. 83; 15 L. 399, 400. As to railroad companies, see note § 454, ante. As to removal of trespasser from train, see Kerr's Cyc. C. C. § 2188 and note. As to riding on platform or steps, see Kerr's Cyc. C. C. § 484 note pars. 5-20. As to right of heirs or personal representatives to maintain action for damages against person causing death of another through wrongful act or neglect, see Kerr's Cyc. C. C. P. § 377 and note. As to sleeping-car companies' liabilities for negligence, .personal injuries, etc., see 21 L. 292-296. As to statute of limitations respecting actions based upon negligence, see Kerr's Cyc. C. C. P. §§ 339, 458 and notes. As to stipulations limiting time of bringing action, see 13 A. S. 785. As to street car companies, see note § 497, ante. As to sufficiency of complaint to impose upon defendant liabil- ity for entire route where he holds himself out as carrier beyond his own lines, see Kerr's Cyc. C. C. § 2174 and note. As to vehicles, see Kerr's Cyc. C. C. § 2101 and note. As to who are common carriers of passengers, see Kerr's Cyc. C. C. § 2168 and note; 47 A. D. 650, 654; 10 L. 415-420. As to who are not passengers, generally, see 61 A. S. 77. As to who are passengers, in general, see 61 A. S. 77, 78; 2 L. 166; 11 L. 720; 24 L. 521-523. Assault upon passenger — Duty to protect from. — See 43 A. S. 90. Same — Liability of for.— See 28 A. R. 112. Baggage, as to, see § 2180 post. Care and skill which must be exercised with respect to roads. —See 37 A. R. 479. Child — Riding free with parent, duty and liability of to. — See 9 A. C. 962, 963. Same — -Right of father to recover for loss, as baggage, of articles used for or by. — See 7 A. C. 61. Contributory negligence of passenger. — As to, generally, see Kerr's C. C— 35 1089 § 2100 CIVIL CODE. [Div.III,Pt.IV. 1 L. N. S. 1145; 2 L. N. S. 1191; 5 L. N. S. 274; 10 L. N, S. 352; 12 L. N. S. 359; 12 L. N. S. 381. Same — Boarding or alighting from moving train. — See 2 A. C. 936, 939. Same — Ejected from train, in walking on railroad. — See 12 L. N. S. 359. Same— In alighting.— See 1 A. C. 177, 178; 3 A. C. 1015. Same — Same — And crossing track. — See 6 A. C. 699, 705. Saitiu — In riding or standing on running board of open street car.— See 6 A. C. 666; 9 A. C. 1025. Same — Leaving seat before train or car stops. — See 4 A. C. 748, 750; 6 A. C. 721. Same — Protrusion of part of body beyond car. — See 1 A. C. 708, 710; 8 A. C. 1036; 5 L. N. S. 274. Same — Riding on platform.^See 1 A. C. 313, 315; 10 A. C. 813, 816; 12 L. N. S. 831. Same — Riding or standing on running board of street car. —See 2 L. N. S. 1191; 10 L. N. S. 352. Same — Walking on station premises in dark. — See 7 A. C. 961. Damages for refusal to carry as passenger. — See 8 A. C. 218. Drover's pass — Liability of to person riding on. — See 5 A. C. 764; 6 A. C. 799. Same — Validity of stipulation in exempting carrier from liability for negligence. — See 5 A. C. 768. Drummer's samples carried as baggage, liability of for.- — See 6 A. C. 828; see also note § 2180, post. Duty and liability of proprietor of public hack or cab to passenger. — See 5 L. N. S. 1069. Duty of— Announce station, to awake passengers. — See 2 A. C. 675, 676; 6 A. C. 675; 7 A. C. 711. Same — Degree of care required. — See 6 A. C. 793. Same — Of vessel to return to wharf to permit visitor to depart. — See 10 L. N. S. 969. Same — Persons assisting. — See 29 A. S. 54. Same — To assist infirm passenger. — See 8 L. N. S. 299. Same — To carry on freight or special trains. — See 5 A. C. 43. Same — To carry person afflicted with contagious disease. — See 8 A. C. 221. Same — To carry to point indicated by sign on car. — See 3 A. C. 1074, 1080. Same — To give information as to quarantine. — See 6 L. N. S. 1009. Same — To give information to prevent passengers exposing themselves to danger and injury. — See 7 A. S. 830. Same — To heat cars. — See 9 A. C. 553, 555. Same — To light station. — See 7 A. C. 961, 969. 1090 Tit.VII,ch.II,art.II] passengers, generally. § 21OO Same — To look after drunken passenger after he has left the train. — See 8 L. N. S. 298. Same — To one assisting passenger on train. — See 3 L. N. S. 432. Same — To one whom it permits to enter its cars upon his own business and not as a passenger. — See 8 L. N. S. 1240. Same — To passenger on overcrowded street car. — See 4 L. N. S. 399. Same— To persons attending or visiting passenger. — See 10 A. C. 161. Same — To protect passengers — From assault^ — See 32 A. S. 90. Same — Same — From cold. — See 11 L. N. S. 1142. Same — Same — From fellow passengers or third persons. — See 3 A. C. 254; 8 A. C. 222; 8 A. C. 584. Same — Same — From intoxicated person. — See 8 A. C. 222, 225. Same— Same— From servants. — See 1 A. C. 617; 6 A. C. 22; 6 A. C. 929. Same — Same — Liability of for assault on passenger. — See 3 A. C. 254. Same — To provide waiting room at station. — See 6 A. C. 569, 571. Same — To stop at passenger's destination. — See 4 A. C. 770; 6 A. C. 22. 24. Same — To supply drinking water to passengers. — See 5 A. C. 411. Same — Toward intoxicated passenger. — See 5 A. C. 72; 9 A. C. 485, 488. Same — Toward passenger boarding or alighting — Generally, see 1 A. C. 912; 9 A. C. 852; 9 A. C. 964, 965. Same — Same — Allow sufficient time to alight. — See 7 A. C. 756, 760. Same — Same — Duty to provide safe place for boarding and alighting.— See 1 A. C. 916; 9 A. C. 854. Same — Same — To assist passengers. — See 10 A. C. 366, 367. Duty of motorman, for protection of passenger, to warn one driving along highway of the approach of a car. — See 12 L. N. S. 197. Duty to passenger — Protection of, generally, see 3 L. N. S. 318; 5 L. N. S. 1012; 6 L. N. S. 1009; 10 L. N. S. 384; 10 L. N. S. 969; 11 L. N. S. 926; 11 L. N. S. 1142 Duty to receive passenger from carriage — Person Avith con- tagious or infectious disease. — See 8 A. D. 218, 221. Same — Right to designate car on train. — See 9 A. C. 84; 9 A. C. 535. Ejection of passengers — As to, generally, see 9 A. C. 84; 9 A. C. 883. Same — As to what is reasonable sum passenger may tender payment of fare avoiding writing of. — See 10 A. C. 624. 1091 s 2100 CIVIL CODE. [Div.III.Pt.IV. I 1 Same — For refusal to pay extra fare — where no opportunity to buy ticket was presented. — See 3 A. C. 887. Same — Same — Where sufficient opportunity to buy ticket was not presented. — See 10 A. C. 923. Same — Liability for made through mistake as to identity. — See 2 L. N. S. 472. Same — Mental suffering as an element of damage for wrong- ful.— See 12 L. N. S. 184. Sai>-\'^ — Right of one having a contagious disease. — See 4 L. N. S. 113. Same — Where passenger receives incorrect transfer. — See 10 A. C. 277. Same — Where passenger tenders fare after refusal to pay. — See 10 A. C. 941. Same — Where ticket invalid through its own fault. — See 9 A. C. 889. Evidence — Declarations of agent as to negligence bind principal. — See 12 A. C. 326; 54 A. D. 308; 70 A. D. 655. Exemplary damages for personal injuries. — See 9 A. C. 1114. Express messenger as passenger. — See 22 L. 796. Failure to stop at station, liability for. — See 2 L. N. S. 585; 7 L. N. S. 1177. Free pass, duty and liability of to person riding on. — See 4 A. C. 1126, 1131. Free passenger — Degree of care owed to in absence of stipula- tion.— See 5 L. N. S. 721. Same — Liability of for injuries to. — See 6 A. C. 669; 10 A. C. 870. Freight train — Duty and liabilities of to. — See 1 A. C. 447; 5 A. C. 42; 9 A. C. 535. Same — Duty of to carry passengers on. — See 5 A. C. 43. Injuries resulting from defects in vehicles and appliances, liability of for. — See 64 A. D. 521. Intending passenger actually becomes such when. — See 1 A. C. 605; 9 A. C. 1104. Intoxicated passenger — Duty of carrier to look after, after he has left the train. — See 8 L. N. S. 298. . Same — Liability of to. — See 5 A. C. 72; 9 A. C. 488. Liability of — Generally, see 34 A. R. 824. Same — As to termination of. — See 6 A. C. 1033. Same — Drummer's samples carried as baggage. — See 6 A. C. 828; see also note § 2180, post. Same — Exemption from by contract. — See 82 A. D. 290. Same — For accident through leaving vestibule door open. — See 2 L. N. S. 645. Same — For acts of servants. — See 8 A. R. 317. Same — For assaults upon passengers. — See 28 A. R. 112. 1092 [ Tit.VII,ch.II,art.II.] PASSENGERS, GENERALLY. § 2100 Same — For assistance negligently rendered passenger by employee. — See 10 L. N. S. 411. Same — For failure to supply berth. — See 5 L. N. S. 1012. Same— For injuries to, generally, see 43 A. D. 355. Same — For injuries done by strikes and mobs.- — See 97 A. S. 526. Same — For injuries received by passengers riding on platform. —See 1 A. C. 315; 10 A. C. 816. Same — For injuries resulting from defects in their vehicles and other appliances. — See 64 A. D. 521. Same — For injuries to free passenger. — See 6 A. C. 669; 10 A. C. 870. Same — For injuries to passenger — By dog or other animal. — See 4 L. N. S. 947. Same — Same — By draught or rain from open window or doors. —See 11 L. N. S. 926. Same — Same — By servant in use of dangerous agency placed in servant's control. — See 10 L. N. S. 384. Same — Same— By sportive act of servant. — See 3 L. N. S. 605. Same — Same — By wrongful act of stranger directed against cars or passengers therein. — See 3 L. N. S. 318. Same — Same — Caused by obstruction placed on track by stranger. — See 12 L. N. S. 840. Same — For injury to person wrongfully on train by collision with a train employee. — See 5 L. N. S. 1025. Same — For misdirection of passenger by ticket agent as to route.— See 2 L. N. S. 110. Same — For passenger's effects. — See 10 A. C. 893. Same — For personal injuries inflicted on passengers by third persons. — See 6 A. S. 734. Same — For stranger's assault on passenger. — See 2 L. N. S. 105. Same — For wrongful arrest by servant. — See 7 L. N. S. 162. Same — Limitation of, as to, generally, see 4 A. C. 556. Same — Loss of property left in berth while temporarily absent therefrom.— See 10 A. C. 895. Same — Of sleeping-car companies. — See 26 A. S. 331. Same — To in-toxicated passenger. — See 5 A. C. 72; 9 A. C. 488. Same — To passengers for assaults by employees and servants. — See 8 A. R. 318. Same — To persons riding on drovers or free passes. — See 48 A. R. 115. Same — To postal clerk for failure to keep account in proper condition. — See 3 L. N. S. 218. Liability of proprietor of logging railroad, or other rail- road used for a private purpose, for injury sustained by one other than an employee while being carried thereon. — See 12 L. N. S. 131. Liability of railroad conipany to persons wrongfully riding 1093 § 2100 CIVIL CODE. [Div.III.Pt.IV. on train by permission or direction of railroad employee. — See 9 a; C. 540. Limitation of liability of — As to, generally, see 4 A. C. 556. Same — As to loss of bag-gage, does it cover losses due to negligence.— See 8 L. N. S. 199; see also note § 2180, post. Same — Application of limitation to hand baggage. — See 5 L. N. S. 650. Same — ^For negligent injury to sleeping-car employers or others suistaining a similar relation to the company. — See 11 L. N. S. 432. Same — Refusal to give effect to foreign contract exempting from.— See 5 L. N. S. 425. Same — Right to stipulation against liability in consideration of reduced fare. — See 4 L. N. S. 1081. Same — Risk of negligence assumed by contract with, as including gross negligence. — See 1 L. N. S. 675. Same — Validity of stipulation — In drover's pass exempting from liability for negligence. — See 5 A. C. 763. Same — Same — In free pass as to for negligence. — See 4 A. C. 557. Same — Same — In ocean_ steamer tickets limiting liability for passenger's baggage. — See 9 A. C. 913. Locomotive, duty of to person riding on. — See 1 A. C. 447; 5 A. C. 42; 9 A. C. 535. Misdirection of passenger by ticket agent as to route, liability for.— See 2 L. N. S. 110. Mixed questions, negligence and contributory negligence. — See 48 A. S. 139. Negligence, burden and sufficiency of proof of. — See 62 A. D. 679. Newsboy or news agent, liability of to. — See 7 A. C. 525, 528. Obligation to stop for passengers at the time advertised. — See 66 A. D. 603. Pass fraudulently procured, duty of to person riding on. — See 7 A. C. 586, 587. Passenger — Express messenger as a. — See 22 L. 796. Same — On wrong car or train by his own mistake. — See 3 L. N. S. 588. Person attending or visiting passenger. — See 10 A. C. 159, 161. Person impliedly invited upon station platform. — See 9 A. C. 1096. Person intending to ride, as a passenger. — See 1 A. C. 603; 9 A. C. 1096. Person riding gratuitously. — See 6 A. C. 666, 669; 10 A. C. 869, 870. Person riding on drover's pass, liability of to. — See 5 A. C. 764; 6 A. C. 799. 1094 Tit.VII,ch.II,art.II-] PASSENGERS, GENERALLY. § 2100 Person riding on free pass, liability of to.-See 4 A. C. 1126, ''person riding on locomotive, freight or special train duty and ^'^Zr:l^::i^i^^o:':^^ ^aSd^LJl^^P^c^a, liaMl- ity of to.-See 7 A. C. 586, 587. _ ^ , . p 0.1 Person temporarily leaving tram —See 7 A. a 9bl. Postal clerk, duty and liability of ^^--See 6 A C. 863. Power of state to regulate and restrict sale of passenger tickets.— See 96 A. S. 828. Power to limit their liability, how may be exercised.-See 3. "" P^'resumption as to negligence of as to, generally see 2 K N. S. 725; 2 L. N. S. 836; 7 L. N. S. 231; 7 L. N. S. 1076, 12 L. N. b. '^Same-From collision resulting in injury to passenger.-See ' PubHc°offlcer on train in discharge of duty-As to, generally, see 9 A. C. 1121. . ^ -,190 r.™ ™.r'aS;;r:r'cfeVSs,'"uty ana >..M,U. „, to.-See ^ t?ecUo;*or "rst'^ar'assen^e. r,.M o, „>,ere he >,as a contagious disease.— See 4 L. N. S. 103. Right of-To grant exclusive privileges to hackmen and other ^^Lamr-^reject^pe'rsons having contagious diseases.-See 4 "^rngM o'f'passenger to bring action ex contractu for personal iniuries or ejection from train.— See 10 A. C. 4b^. Sleeping-cL company-Functions, duties and liabihties of.- 'lame^LiabUity of-For loss of passenger's property left by him in berth while temporarily absent therefrom.-See 10 A. C. ^^Same-Same-For theft of property of passengers.-See 56 A. "" special trains-Duty and liabilities of to.-See 1 A. C. 447; 5 A. C. 42; 9 A. C. 535. . a n .q oanie— 'Duty of to carry passengers on.— See 5 A. c. 4d. IS'on-Reasonable time to keep station open before and after trains. — See 1 L. N. S. 851. q A r Station platform, person impliedly invited upon.-See 9 A. C. '"It'ipulation-ln drover's pass exempting carrier from liability for ne°-ligence, validity of. — See 5 A. C. 768. Same-fn fr^e pass exempting from liability for negligence, validity of. — See 4 A. C. 557. 1095 § 2100 CIVIL CODE. [Div.III.Pt.IV. Same — In ocean steamship tickets limiting liability for passenger's baggage, validity of. — See 9 A. C. 913. Strikes and mobs, liability of for injuries done by. — See 97 A. S. 526. Termination of relation — As to, generally, see 2 L. N. S. 873, 876. Same — Of carrier and passenger. — See 6 A. C. 1032, 1033; 7 A. C. g"! Ticket or pass fraudulently procured, duty of railroad to person riding on. — See 7 A. C. 586, 587. Ticket procured by fraud or misrepresentation, right on train of person holding. — See 6 L. N. S. 1146. Tickets — Effect of conditions on unsigned. — See 84 A. S. 397. Same — ^Power of state to regulate and restrict sale of. — See 96 A. S. 828. What persons they may refuse to receive and transport as passengers. — See 107 A. S. 298. When person ceases to be a passenger. — See 37 A. R. 384. Who are passepgers of — As to, generally, see 1 A. C. 451. Same — And when may become such. — See 61 A. S. 75. Same — Children riding free with parent. — See 9 A. C. 962. Same — Same- — Duty and liability of carrier to. — See 9 A. C. 963. Same — Meaning of phrase "a passenger being transported" in statute defining duty and liability of. — See 4 L. N. S. 254. Same — Newsboy or agent. — See 7 A. C. 525. Same — Same — Liability of to. — See 7 A. C. 528. Same — Passenger temporarily leaving train. — See 7 A. C. 961. Same — ^Persons attending or visiting passengers. — See 10 A. C. 159. Same — Same — Duty and liability as to. — See 10 A. C. 161. Same— Person on wrong car or train by his own mistake. — See 3 L. N. S. 588. Same — Persons impliedly invited upon station platform. — See 9 A. C. 1086. Same— Persons intending to ride. — See 1 A. C. 618; 9 A. C. 1096. Same — Persons permitted to enter cars upon own business. — See 8 L. N. S. 1240. Same — Persons procuring tickets by fraud or misrepresenta- tion. — See 6 L. N. S. 1146. Same — Pei'sons riding gratuitously.-^See 6 A. C. 666; 10 A. C. 869. Same — Same — Liability of for injury to. — See 6 A. C. 669; 10 A. C. 870. Same — Persons riding on drover's pass. — See 5 A. C. 764. Same — Same — Liability of to. — See 6 A. C. 799. Same — Persons riding on free pass. — See 4 A. C. 1126. 1096 I Tit.VII,ch.II,art.II.] VEHICLES, LOAD. §§2101,2102 Same— Same— Liability of to.— See 4 A. C. 1131. Same— Persons riding on locomotive, freight or special train. —See 1 A. C. 447; 5 A. C. 42; 9 A. C. 535. Same— Persons riding on ticket or pass fraudulently procured. —See 7 A. C. 586-587. . , Same— Persons wrongfully on train, liability to for injuries by collision with a train employee. — See 5 L. N. S. 1025. Same — Postal clerk, duty of to. — See 6 A. C. 863. Same— Public officer on train in discharge of duty.— See 9 A. C. 1121. Same— Same— Liability of to.— See 9 A. C. 1123. Same— Railway mail agents or clerks.- See 6 A. C. 862, 863; 10 A. C. 789. Same — Termination of liability. — See 6 A. C. 1033. Same— Termination of relation.— See 6 A. C. 1132; 7 A. C. 961; 2 L. N. S. 873. • Same— When intending passenger actually becomes such.— bee 1 A. C. 605; 9 A. C. 1104. Who liable as. — See 47 A. D. 648. §2101. YEHICLES. A carrier of persons for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. 89 C 399 406 26 P. 894, 895 (construed and applied); 118 C. 648, 653 (cited by error for § 2201), 50 P. 775, 40 L. 78 (correct citation). As to degree of car£ required of carriers of passengers m gen- eral, see Kerr's Cyc. C. C. § 2100 note parS. 15, 16, 23. As to duty of carriers to exercise high degree of care in pro- viding necessary and safe appliances for accommodation of passengers, and as to liability of carriers for defects, etc., see 43 A. D. 362. , .o a r> As to liability for defects in vehicles in general, see 43 A. D. 362; 64 A. D. 523; 75 A. D. 265. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to responsibility for defects attributable to fault of manu- facturer, see Kerr's Cyc. C. C. § 2100 and notes, also 2 L. 86. § 2102. NOT TO OVERLOAD HIS VEHICLE. A carrier of persons for reward must not overcrowd or overload his vehicle. History: Enacted March 21, 1872. 1097 §§ 2103, 2104 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. §2103. TREATMENT OF PASSENGERS. A carrier of persons for reward must give to passengers all such accom- modati'^'^'^ as are usual and reasonable, and must treat them with civility, and give them a reasonable degree of attention. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to carrier's duty to care for safety of passengers, see 8 L. 673, 674. As to carrier's duty to protect passengers from injuries oy third person, see 6 A. S. 734, 737. As to carrier's duty to protect passengers from rudeness and insult, see 3 L. 634. As to car»ier's liability for injuries resulting from miscon- duct of servants, see Kerr's Cyc. C. C. § 2100 par. 74; § 2188 and note; also 3 L. 635. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to providing proper accommodations for passengers, see Kerr's Cyc. C. C. § 2102 and note. As to right of carrier to eject passengers, see Kerr's Cyc. C. C. § 2188 and note.. § 2104. RATE OF SPEED AND DELAYS. A carrier of per- sons for reward must travel at a reasonable rate of speed, and without any unreasonable delay, or deviation from his proper route. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to speed of street cars, see Kerr's Cyc. C. C. § 501 note par. 8; also 25 L. 663; 57 A. S. 735; 60 A. S. 591; 27 Encyc. L. 49. Deviation defined as relates to marine insurance. — See post § 2694. Deviation — Duties of railroad corporations to observe regular time schedule, etc., see Kerr's Cyc. C. C. § 481 and note. 1098 Tit.VII,ch.III,art.I.] DEFINITIONS. § 2110 CHAPTER III. CARRIAGE OF PROPERTY. Article I. General Definitions, § 2110. II. Obligations of the Carrier, §§ 2114-2122. III. Bill of Lading, §§ 2126-2132. IV. Freightage, §§ 2136-2144. V. General Average, §§ 2148-2155. ARTICLE I. GENERAL DEFINITIONS. § 2110. Freight, consignor, etc., what. §2110. FREIGHT, CONSIGNOR, ETC., IVHAT. Property carried is called freight; the reward, if any, to be paid for its carriage is called freightage; the person who delivers the freight to the carrier is called the consignor; and the person to whom it is to be delivered is called the consignee. Hi.stor>-: Enacted March 21, 1872. As to bills of lading, see Kerr's Cyc. C. C. §§2126-2132 and notes. As to carriers of property generally and their liability for damages occasioned by negligence, etc., see Kerr's Cyc. C. C. §§ 2194-2204 and notes. As to common carriers in general, see Kerr's Cyc. C. C. § 2168 and note. As to lien of carrier for freightage, see Kerr's Cyc. C. C. § 2144 and note. As to obligations of carriers of property, see Kerr's Cyc. C. C. §§ 2114-2121 and notes. As to when consignee is liable for freightage, see Kerr's Cyc. C. C. § 2138 and note. As to when consignor is liable for freightage, see Kerr's Cyc. C. C. § 2137 and note. As to when payment of freightage may be required, see Kerr's Cyc. C. C. § 2136 and note; also 60 A. D. 150. 1099 § 2114 CIVIL CODE. [Div.III.Pt.IV. ARTICLE II. OBLIGATIONS OF THE CARRIER. § 2114. Care and diligence required of carrier. § ?1T5. Carrier to obey directions. § 2116. Confli'^t of orders. § 2117. Stowage, deviation, etc. § 2118. Delivery of freiglit. § 2119. Place of delivery. § 2120. Notice when freight not delivei-ed. § 2121. When consignee does not accept. § 2122. When consignee cannot be found [repealed]. §2114. CARE AND DILIGE>CE REQUIRED OF CAR- RIERS. A carrier of property for reward must use at least ordinary care and diligence in tlie performance of all his duties. A carrier wittiout reward must use at least slight care and diligence. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 39 pars, annotation. 121 C. 564, 568, 66 A. S. 65, 54 P. 89 (construed and applied). ii CARRIERS OF PROPERTY — GENERALLY. | As to action for damages for loss of goods in general, see note J 10 L. 418. % As to burden of proof in case of loss of baggage, see Kerr's 4- Cyc. C. C. § 2182 and note. I As to carriage of property without reward, being mere bail- ment, see Kerr's Cyc. C. C. §2090 and note. V As to common carriers, who are, see Kerr's Cyc. C. C. § 2168 J and note. ; As to conversion committed by common carrier, see note 24 A. S. 815, 816. As to defense under special contract limiting liability, see Kerr's Cyc. C. C. § 2174 and note. As to defenses of "acts of God", public enemy, etc., see Kerr's Cyc. C. C. § 2194 and note; also "Act of God," this note. As to delay and losses caused thereby, see Kerr's Cyc. C. C. § 2194 and note. As to delivery, see Kerr's Cyc. C. C. §§ 2118, 2119, 2130, 2131, 2132 and notes. As to discrimination in favor of large shippers, see note 11 A. S. 650. 1100 I Tit.VII,ch.III,art.II.] CARRIERS, GENERALLY. §2114 As to detriment caused by breach of carrier's obligation to accept freight, see Kerr's Cyc. C. C. § 3315 and note. As to express companies as common carriers, see notes 47 A. D. 648-654; 61 A. S. 360-385. As to g'eneral average, see Kerr's Cyc. C. C. § 2148 and note. As to liability for acts of agents, see note 61 A. S. 381. As to liability for carrying goods in cold storage cars, see note 90 A. S. 300-302. As to liability for loss on connecting lines, see note 52 A. S. 103. As to liability for negligent loss of goods, see note 10 L. 417. As to liability of forwarders as distinguished from' that of carriers, see Kerr's Cyc. C. C. § 2174 and note. As to liability of marine carrier, when begins, etc., see Kerr's Cyc. C. C. § 2197 and note. As to liability of common carrier of property in general, see Kerr's Cyc. C. C. § 2194 and note. As to liability of express companies for goods shipped over connecting lines, see note 61 A. S. 371. As to live stock, carriage of, duty of feeding and watering, etc., see note 63 A. S. 554, 558. As to live stock, claims for damages to, see 9 L. 449-452. As to live stock, duty to prevent escape of, see note 63 A. S. 560. As to measure of care required, in general, see note 10 L. 416. As to police regulations relating to carrying cattle, etc., see Hen. G. L. pp. 154, 155, note. As to property stored in warehouse upon reaching destination, see Kerr's Cyc. C. C. §§ 2120, 2121 and notes. As to right of carrier to grant preferences, see note 11 A. S. 648. As to storage of goods not creating new contract, which must be specially pleaded, see Kerr's Cyc. C. C. § 2120 and note. As to stipulations limiting time of bringing actions, see note 13 A. S. 785. As to strikes as affecting liability of carrier, see Kerr's Cyc. C. C. § 2196 and note. As to subrogation of insurer to rights of carrier, see note 44 A. S. 734, 736. As to when declarations of agent are admissible against principal, see note 52 A. D. 312. Act of God— As affecting liability of.— See 3 A. C. 450; 4 A. C. 128; 8 A. C. 45; 8 A. C. 308. Same — As excuse, exception In contract, Inevitable accident. — See 11 L. 615. Same — As irresistible, superhuman cause. — See 27 A. S. 198; 19 L. 188; 1 W. & P. 120. Same — As to what Is within the meaning' of the law of. — See 18 A, R. 618. 1101 § 2114 CIVIL CODE. [Div.III.Pt.IV. Same — As without negligence. — See 86 A. D. 415; 95 A. D. 115; 1 W. & P. 120. Same — Climatic conditions. — See 1 W. «& P. 121. Same— Collision.— See 80 A. D. 627; 1 W. & P. 121. Same— Contagious disease.— See 38 A. R. 206; 1 W. & P. 121 Same — ^Co-operating with negligence of carrier. — See 3 A. C 453. Sam Defective appliances, materials, etc. — See 23 A. D. 131 42 A. D. 264; 1 W. & P. 121. Same— Definition of.— See 4 A. C. 128; 6 A. D. 306; 7 A. D. 2:^" 43 A. D. 444; 64 A. D. 394; 71 A. D. 582; 80 A. D. 627; 91 A. D 452; 97 A. D. 406; 19 A. R. 631; 53 A. S. 332; 35 L. 356; 41 L, ed. 1039; 1 W. & P. 118-126. Same — Earthquake. — See 1 W. & P. 122. Same— Fire.- See 74 A. D. 639; 18 A. R. 613; 1 W. & P. 122. Same — Flood.— See 71 A. D. 153; 86 A. D. 415; 95 A. D. 115; 24 A. S. 929; 53 A. S. 332; 1 L. 619; 35 L. 356; 19 L. ed. 909; 1 W. & P. 122. Same— Freezing.— See 28 A. D. 521; 97 A. D. 406; 41 A. R. 696; 1 W. & P. 123. Same— Illness.— See 37 A. D. 66; 46 A. D. 393; 47 L. 581; 33 L. ed. 458; 1 W. & P. 124. Same — Inevitable or unavoidable accident. — See 86 A. D. 292; 22 A. S. 403: 11 L. 615; 1 W. & P. 120. Same — Negligence or tortious act of insane agent or servant, liability of principal for. — See 4 A. C. 135. Same — Of obstructions at sea. — See 7 A. D. 235; 71 A. D. 532; 86 A. D. 292; 27 A. R. 28; 41 L. ed. 1039; 1 W. & P. 124. Same — Perils of the sea. — See 1 W. & P. 124. Same — Rain.— See 91 A. D. 452; 35 L. 458; 1 W. & P. 125. Same— Snow.— See 93 A. D. 315; 1 W. & P. 125. Same — Storm.— See 11 A. D. 632; 64 A. D. 394; 1 W. & P. 125. Same— Wind.— See 5 A. D. 200; 6 A. D. 306; 19 A. R. 631; 1 W. & P. 126. Action against — Allegations and proof. — See 5 A. C. 97. Same — Damages recoverable for misdelivery of stock. — See 5 A. C. 59. Same — Estoppel to plead defense of limitation of action on carrier's contract. — See 63 L. 206. Same — Questions of law and fact. — See 4 A. C. 128. Same — Who is real party in interest entitled to maintain. — See 64 L. 617. Agreements and stipulations which may extort from shippers and their effect as extorted. — See 13 A. S. 782; 46 A. S. 777. Agreements fixing the value of property shipped. — See 23 A. S. 595. Animals — Liability for injuries to during transportation. — See 67 A. D. 208; 12 A. R. 500. 1102 Tit.VII,ch.III,art.II.] CARRIERS, generally. §2114 As bailees. — See 6 L. 619; 6 L. 853. As insurer. — See 1 L. 702; 3 L. 424. Assault by employees, liability for. — See 42 A. R. 36. Baggage transfer companies — As common carriers. — See 34 L. 137-140. Bill of lading — As to generally, see note § 2126, post. By messengers — Liability of for. — See 4 A. C. 767; 5 A. C. 796. By water — Loss for which not liable. — See 41 A. D. 281. Same — Responsibility of. — See 2 L. 173. Carrier's contract — Conflict of laws as to. — See 4 A. C. 1102, 1106; 63 L. 513. Claims against, conditions limiting time within which may be presented. — See 31 A. R. 509. Cold storage or refrigerator cars, duty respecting. — See 90 'A. S. 300. Conditions limiting time within which claims against may be' presented. — See 31 A. R. 509. Connecting carriers — As to liability beyond own line, see 4 L. 545; 9 L. 833, 834; 63 L. 530. Same — Burden of proof as between to show who is at. fault for loss or injury. — See 101 A. S. 392. Same— Joint liability of. — See 4 L. 545; 9 L. 834. Same — Liability beyond own line. — See 1 L. 705; 4 L. 545; 6 L. 853; 9 L. 835; 13 L. 34. Same — Liability of first carrier for goods lost on. — See 2 A. R. 141; 1 L. 705. Same — Liability of for detaining freight on account of mis- take as to amount due. — See 6 L. N. S. 1054. Same — Liability of the receiving carrier beyond his line. — See 42 A. R. 664. Same — Refusal of to surrender freight induced by mistake as to the rate due, or as to payment of charges, as a conversion. —See 6 L. N. S. 1048. Same — Rights and liabilities of. — See 4 L. 376; 4 L. 545; 6 L. 849; 7 L. 214; 9 L. 833; 10 L. 415. Same — Statute regulating liability of as interference with interstate commerce. — See 7 L. N. S. 388. Connecting lines — Liability of initial carriers for the torts or negligence of. — See 106 A. S. 604. Consignee — Liability of to servants of carrier. — See 46 L. 97. Same— Right of as against carrier to reject consignment of freight for delay in transportation. — See 12 L. N. S. 431. Same — Right to goods without payment 6f freight, where damages equal or exceed amount of freight due.— See 9 A. C. 794. Contract — Of transportation, made by agent. — See 9 L. 833. Same — To impostor by carrier. — See 37 L. 177. 1103 § 2114 CIVIL CODE. [Div.III,Pt.IV. Same — To make at designated point. — See 10 L. 416. Same — To whom to be made under bill of lading. — See 38 L. 358-366. Conversion by — As to, generally, see 2 L. 80. Same — Effect of seizure of goods by judicial process to relieve carrier from liability. — See 9 L. 263; 13 L. 135. Same — Payment or tender of freight charges conditions precedent to action of trover. — See 21 L. 117. Sanip — Permitting unauthorized inspection as. — See 3 L. N. S. 1126. Same — Refusal of connecting carrier to surrender freight induced by a mistake as to rate due and as to payment of charges, as a. — See 6 L. N. S. 148. Same — When tender of freight money not condition of, by carrier's refusal to surrender goods. — See 6 L. N. S. 1058. Customs and usages of and their effect. — See 50 A. D. 99. Damage — Liability of for. — See "Liability of — For loss or damage," this note. Delay — In transportation, what will excuse. — See 9 L. 836. Same — In unloading caused by strike. — See 35 L. 630. Same — Liability for. — See 9 A. C. 790. Same — Measure of damages for. — See "Measure of damages," this note. Delay in transportation — Liability of railroad company for, due to inadequate facilities. — See 10 L. N. S. 432. Same — Right of consignee to reject consignments for. — See 12 L. N. S. 431. Delivery — Custom or usage at port of, as part of contract. — See 1 L. 650. Same — Effect of misdelivery. — See 6 L. 849. Same — Failure to make as prima facie evidence of negligence and liability. — See 13 L. 33. Same — Liability for wrongful. — See 6 L. 853. Same — Sufflciency of by carrier by water to terminate its liability. — See 6 A. C. 16. Same — Time of notice to warrant special damages for failure of carrier to make. — See 3 L. N. S. 1111. Same — To carrier, as delivery to purchaser. — See 62 L. 798. Same — To wrong person, liability foi-. — See 5 A. C. 97, 100. Same — What amounts to. — See 8 A. D. 214. Same — When excused by their seizure under process. — See 34 A. S. 735. Same — Who may maintain action for non. — See 22 L. 427. Delivery of goods by, to whom may be made, and liability for delivery to wrong person. — See 9 A. S. 511. Demurrage — As to generally, see "Freight", this note. Same — ^Charge for detention of caused by consignee. — See 22 L. 530. 1104 Tit.VII,cll.III,art.II.] CARRIERS, GENERALLY. § 2114 Same — Effect and construction of express provision in charter party, as to in case of strike, see 5 L. N. S. 126. Same — Liability of shipper for. — See 30 A. S. 635. Same — Lien for. — See 3 L. N. S. 327. Same — Lien of carrier by water for in absence of contract. — See 5 A. C. 388. Same — Lien of railroad company for. — See 4 A. C. 15. Same — Maritime lien for. — See 70 L. 374. Deterioration of goods caused by delivery, liability of for. — See 11 A. S. 360. Discrimination by — Between shippers as to rates.— See 1 A. C. 52, 55. Same — What are unreasonable and unlawful. — See 11 A. S. 647. Same — When improper and unlawful. — See 44 A. R. 568; 54 A. R. 862. Distinction as to liability between carriers of goods and pas- sengers. — See 2 L. 252. Domestic commerce — As to whether shipments between points in same state lose their character as, by passing out of the state delivering the cars of transportation. — See 17 L. 443. Duty of — As to damaged goods, see 13 A. D. 472. Same — As to delivery and collection of packages by express company, see 33 L. 36. Same — As affected after strike. — See 35 L. 623. Same — On adverse claim being made to goods. — See 34 A. S. 731. Same — Persons loading or unloading not bare licensees. — See 1. A. C. 601. Same — Railroad company to give equal facilities to express companies. — See 18 L. 393. Same — To furnish cars, independentlj' of contract. — See 43 L. 225; 8 L. N. S. 108. Same — To ice cars containing perishable freight. — See 10 A. C. 171. Same — To inspect cold storage or refrigerator cars. — See 90 A. S. 300. Same — To keep premises safe for shippers or consignees. — See 1 A. C. 598; 9 A. C. 988. Same — To recognize demands of strangers on property deliv- ered to it for transportation. — See 12 L. N. S. 254. Same — With respect to refrigerator cars. — See 10 L. N. S. 307. Employees, liability for assault by. — See 42 A. R. 36. Estoppel to plead defense of limitation of action on carrier's contract. — See 63 L. 206. Express companies — Duties of. — See 61 A. S. 360. Same — In delivery of C. O. D. packages may be agents of both the seller and the purchaser. — See 51 A. R. 570. Same — Relation of and of their employees to the carrier. — See 64 A. S. 513. 1105 § 2114 CIVIL CODE. [Div.III.Pt.IV. Fire, liability of for loss or injury by. — See 5 A. C. 818, 821. Forwarding merchants, who are. — See 7 A. D. 313; 3 W. & P. 2926. Freight — Excessive, payment of, when deemed voluntary and when involuntary. — See 51 A. R. 820. Same — Right to, when becomes complete. — See 60 A. D. 49. Same — ^Unreasonable charges by interstate carriers. — See 9 A. C. 1075, 1082. Garn->.'-iment of goods in transit. — See 50 A. S. 465; 69 A. S. 125. GootJs wrongfully shipped, liability for. — See 9 A. C. 677. Holding goods, after arrival at destination, at request and for convenience of consignee, liability of for. — See 10 A. G. 442. Icing cars, duty of where carrying perishable freight. — See 10 A. C. 171. Impossibilities of performance as affecting carrier's liability under contract. — See 14 L. 216. Interstate or foreign transportation, shipment within state as part of. — See 17 L. 643. Interstate transportation, of intoxicating liquors, what is sufficient. — See 11 L. N. S. 550. Intoxicating liquors, liability of carrier for transporting. — See 46 L. 417-422. Liability of — As carrier of money. — See 4 A. C. 769. Same — As warehouseman. — See 10 A. C. 437, 442. Same — Distinction as to between carriers of goods and pas- sengers.- — See 2 L. 252. Same — Extent of — Allowance of interest on damages. — See 18 L. 451. Same — Same — Conclusiveness of shipper's valuation. — See 4 L. 545. Same — Same — Conflict of laws as to. — See 63 L. 529. Same^ — Same — Loss of profits as elements of damage. — See 53 L. 83. Same — Same — Restriction of by valuation. — See 6 L. 851. Same — Same — Rule as to valuation fixed in bill of lading. — See 12 L. 799. Same — For acts of servants. — See 8 A. R. 317. Same — For assault by employees. — See 42 A. R. 36. Same — For damages caused by act of God. — See "Act of God," this note. Same — For damages caused by act of God co-operating with its own negligence. — See 3 A. C. 453. Same — For delay caused by mobs or unlawful conduct of em- ployers. — See 9 A. C. 790; 4 L. 545. Same — For delivery to wrong person. — See 5 A. C. 97, 100. Same — For discrimination between shippers as to rates. — See 1 A. C. 52, 55. Same — For failure to forward bonded merchandise. — See 4 L. N. S. 1060. 1106 i Tit.VII,ch.III,ait.II.] CARRIERS, GENERALLY. § 2114 Same— For goods wrongfully shipped.— See 9 A. C. 677. Same— For Injuries caused to shippers or consignees by unsafe premises.— See 1 A. C. 598; 9 A. C. 998. ^ o qt a Same— For injuries done by strikes and mobs.— See 97 A. Same— For injuries resulting to consignor or consignee from failure to furnish safe cars.— See 9 A. C. 990. Same— For injuries to animals during transportation.— See 67 A. D. 208; 12 A. R. 500. Same— For injuries to consignor or consignee^ or their em- ployees caused by unsafe car.— See 9 L. N. S. 857. Same— For loss occasioned partly by the act of God and partly by other means. — See 97 A. S. 409. Same— For loss of goods.— See 31 A. D. 554. ^ .-r, Same— For loss or damage— As to, generally, see o A. C. 4oU. Same-Same-By act of God.-See "Act of God," this note. Same— Same— Co-operating with on negligence.— See 3 A. C. 453. 'same- Same— For loss by fire.— See 5 A. C. 818, 821. Same— Same— Misrepresentation or concealment of nature or value of goods by shipper as affecting liability for loss or injury.— See 5 A. C. 118, 120. Same— Same— Selection of suitable car by shipper as affect- ing liability for damage by defective car.— See 4 A. C. 11 4U. Same— Same— To perishable freight.— See 3 A. C. 450, 10 A. C. 169, 171. ^ ^ ^ , a„^ 11 Same— For loss or deterioration of goods by delay.— bee ii ■game—For malicious refusal of freight agent to deliver freight.— See 7 L. N. S. 926. Same— For negligent or tortious act of insane agent or employee. — See 4 A. C. 135. Same— For property removed by, or delivered to one whom it was directed to notify.— See 4 L. N. S. 1056. Same— Impossibilities of performance as affecting under con- tract.— See 14 L. 216. . A r 767- 5 A Same— In carriage by messengers.- See 4 A. C. 7b/, i> a. 'same- Initial carriers for the torts or negligence of con- necting lines.— See 106 A. S. 406. a-o- a a Same— Limitation of— As to, generally, see 1 A. C. 6.-. 4 A. C 128- 7 A C. 281; 7 A. C. 468; 9 A. C. 15; 9 A. C. 1143. 'same— Same— Authority of agent shipping goods to enter into contract limiting liability of carrier.- See 1 A. C. 6<6. Same— Same— By notices or tickets, baggage checks, bills of lading, etc.— See 50 A. S. 719. Same— Same— Conflict of laws.— See 4 A. C. 1102, 1106. 1107 § 2114 CIVIL CODE. [Div.III.Pt.IV. Same — Same — Effect of authorized deviation by vessel on contract limiting liability for loss or damage to cargo. — See 7 A. C. 283. Same — Same — Validity and effect of contract stipulation lim- iting time to present claim. — See 9 A. C. 17. Same — Same — Validity of stipulation in bill of lading limit- ing liability of connecting carrier to its own line. — See 7 A. C. 471. Same^-Limited by bill of lading. — See 88 A. S. 74. Same — Measure of damages. — See "Measure of damages," this note. Same — On holding goods, after arrival at destination, at request and convenience of consignee. — See 10 A. C. 442. Same — Power to limit in the event of loss to a sum less than the injury suffered. — See 23 A. S. 593. Same — Power to limit, and how may be exercised. — See 32 A. D. 495. Same — Railroad for delay in transportation, due to inade- quate facilities.— See 10 L. N. S. 432. Same — Railroad for loss of registered letter. — See 5 L. N. S. 459. Same — Stipulations exempting from, when void. — See 31 A. R. 567. Same — Termination of — As to generally, see 6 A. C. 13, 16. Same — Same — As affected by its fault preventing removal of goods.— See 8 L. N. S. 235. Same — To persons loading or unloading cars. — See 1 A. C. 601. Same — When commences. — See 13 L. 33. Same — When ends, and what amounts to delivery by. — See 8 A. D. 214; 7 A. R. 595. Same — When reduced to that of warehouseman. — See 97 A. S. 84. Liens — As to, generally, see 3 A. C. 1092: 4 A. C. 12; 5 A. C. 387; 7 A. C. 790; 7 A. C. 960; 9 A. C. 790. Same— For charges. — See "Demurrage," "Freight," this note. Same — For freight. — See 4 L. 376. Same — Maritime for freight. — See 70 L. 368. Same^ — Of carrier by water for deinurrage in absence of con- tract. — See 5 A. C. 388. Same — Of railroad for demurrage charges. — See 4 A. C. 15. Same — On goods tortiously delivered to it. — See 3 A. C. 1095. Same — Right of consignee to goods without payment of freight where damages equal or exceed amount of freight due. —See 9 A. C. 794. Same — Waiver of, by attachment or execution. — See 50 L. 721. Same — Waiver of by delivery to consignor's agent on prom- ise to retain goods until payment of freight charges. — See 7 A. 0. 961. 1108 Tit.VII,ch.III,art.TI.] CARRIERS, GENERALLY. § 2114 Limitation of liability of.-See "Liability of-Limitation," this Same— Bv carrier of live stock.— See 4 A. C. 128; 5 A. C. 97. lame-By notices or tickets, baggage checks, bills of ladmg. etc.— See 5 A. S. 719. Same— By valuation.— See 6 L. 851. Same-Conflict of laws as to.-See 4 A. C. 1102 1106^63 L 525. Same— Contracts for reasonable exemptions.— See 13 L. ibz. Same— For loss by fire or flood.— See 10 L. 417. Same— In case of dangerous articles.- See 36 L. 64b. Same-Misrepresentation of value of goods by shipper^ as affecting amount of liability for loss or damage.-See 2 L. N. S 973 ■game— Of baggage transfer company.— See 34 L. 138. Same— Power to limit in case of negligence.— See 14 L iS6. Same— Right to limit common law. in absence of negligence. . ""lame-Right'to restrict common law ^^'^"^0?;. Tr'iS-'lI 1 L. 500; 3 L. 343; 3 L. 425; 6 L. 849; 7 L. 214. 10 L. 419. 13 "^"slme-Validity and effect of contract stipulation limiting time to present claim against carrier of live stock.-See 9 A. *^'slme-Validity of contract limiting time to bring suit.-See ^ Samt-Valuation of property as affecting recovery for loss by negligence. — See 1 L. N. S. 985. Samc-What constitutes damage by the elements in contiact of —See 53 L. 676; 3 W. & P. 2345. Live stock— Contract for presentation of claim for damages, reasonableness of time fixed.— See 7 L. N. S. 1041. Same— Liability of. for.— See 13 A. R. 53. Same-Respective duties of. and of the shippers of.— Sec 63 ""'t^osI'ov damage, liability for.-See "Liability of-For loss or damage," this note. Mandamus against. — See 37 A. S. 320. Maritime lien for freight.— See 70 L. 368. .0^. - Measure of damages.— As to. generally, see 3 A. C. 58-. A C 573- 5 A. C. 825; 9 A. C. 790. . 'same— For delay in transportin^g property intended for exhi- bition purposes. — See 5 A. C. 827. Misrepresentation where concealment of nature or value of goods by shipper, as affecting carrier's liability for their loss or injury. — See 5 A. C. 120. , • •*• 1 Negligence or torts of connecting lines, liability of initial carriers for. — See 106 A. S. 604. 1109 I 2114 CIVIL CODE. [Div.III.Pt.IV. Notices contained in tickets and bill of lading. — See 15 A. R. 457; 29 A. R. 166; 5 A. S. 719. Obligation of to receive goods from all persons. — See 44 A. R. 568. Of live stock — Contract limiting liability. — See 9 L. 452. Same — Duties and liabilities of — As to condition of stock pens, see 2 L. 75; 4 L. 545;' 10 L. N. S. 571. Sanifc -Same — As to fences or gates at stations. — See 4 L. 289-296. Same — Same — As to loading live stock. — See 13 L. 262. Same — Same — As to shipment of stock. — See 9 L. 449-452. Same — Same — Burden of proof of cause of injury to live stock during transportation. — See 17 L. 339. Same — Same — Extraordinary unloading of live stock in tran- sit.— See 14 L. 550. Same — Same — To furnish cars for transportation. — See 9 L. 449. Same — Same — To owner's caretaker for condition of stock pen.— See 10 L. N. S. 576. Same — Same — With reference to care of stock during trans- portation. — See 44 L. 449-456. Perishable freight — Liability of on. — See 3 A. C. 450; 10 A. C. 169, 171. Permitting unauthorized inspection as conversion. — See 3 L. N. S. 1126. Power of — To limit liability and how may be exercised — See 32 A. D. 495. Same — To limit their liability in the event of a loss to a sum less than the injury suffered. — See 23 A. S. 593. Railroad — Liability of for delay in transportation of freight, due to inadequate facilities. — See 10 L. N. S. 432. Rebates and discriminations. — See 12 L. N. S. 609. Refrigerator cars — Duty of carrier with respect to. — See 10 L. N. S. 317. Removal of goods — Act or fault of preventing, as affecting termination of liability. — See 8 L. N. S. 235. Same — What a reasonable time for, after which the liability of the carrier as such terminates. — See 8 L. N. S. 240. Right — To demand goods against owner when possession was not received from, when. — See 40 A. D. 44. Same — To deny, as against bona fide holder of bill of lading that goods were delivered to it. — See 6 L. N. S. 302. Same — To terminate its responsibility as warehouseman. — See 9 L. N. S. 577. Rights, duties and obligations of, in general, see 2 L. 102; 3 L. 342; 3 L. 424; 5 L. 587; 6 L. 849; 10 L. 415. Selection of unsuitable car by shipping, effect of on liability of.— See 4 A. C. 1140, 1144. 1110 Tit.VII,ch.III,art.II.] CARRIERS, generally. §2115 Servants, liability of for acts of. — See 8 A. R. 317. Special contracts, right to exact from shippers. — See 40 A. S. 777. Stoppage in transitu — Rig'lit of, when terminates. — See 60 A. R. 51. Same — Right of, when and by whom may be exercised. — See 29 A. D. 384; 19 A. R. 87; 1 A. S. 312. Strike — As affecting duty of railroad to furnish cars.— See 35 L. 623. Same — ^Effect of upon carrier's liability. — See 35 L. 623. Same — Express provision as to charter party against demur- rage in case of. — See 5 L. N. S. 126. Strikes and mobs, liability for injuries done by.— See 97 A. S. 526. Termination of interstate transportation of intoxicating liquors, what is sufficient. — See 11 L. N. S. 550. Termination of liability of — As to, generally, see 6 A. C. 13, 16; 17 L. 691. Same — Conflict of laws as to. — See 63 L. 531. Time of notice to warrant special damage for failure to deliver property. — See 3 L. N. S. 1111. Title, passing of to property by delivery of carrier for trans- portation. — See 22 L. 415. Torts or negligence of connecting lines, liability of initial carriers for. — See 106 A. S. 604. Unloading, delay in caused by strike. — See 35 L. 630. Unreasonable charges by interstate carriers. — See 9 A. C. 1075, 1082. Unsuitable car, selection of by shipper as affecting carrier's liability for damage to goods by defective car. — See 4 A. C. 1144. Va'lidity of contract for transportation in violation of par- ticular statute. — See 12 L. N. S. 609. Value of goods — Inquiry and representation as to. — See 13 L. 33. Same — Concealment or misrepresentation as to, effect on lia- bility for loss or damage. — See 5 A. C. 118, 120; 13 L. 33. Warehouseman — Liability as. — See 10 A. C. 437, 442. Same — Right to terminate responsibility as.— See 9 L. N. S. 577. Water, loss by, for which not liable. — See 41 A. D. 281. Wlio liable for loss or deterioration of goods caused by deliv- ery, liability of for.— See 11 A. S. 360. § 2115. CARRIER TO OBEY DIRECTIONS. A carrier must comply with the directions of the consignor or consignee to the same extent that an employee is bound to comply with those of his employer. History: Enacted March 21, 1872. 1111 §§ 2116, 2117 CIVIL CODE. [Div.III,Pt.IV. As to duty of employee to observe directions of employer, see Kerr's Cyc. C. C. § 1981 and note. As to many miscellaneous matters as to carriers of prop- erty, see note § 2114, ante. As to obligation and duty of employee to comply with direc- tions of employer, and his liability in damages for failure, see Kerr's Cyc. C. C. §§ 1978, 1979, 1981 and notes. As to right of stoppage in transitu, see Kerr's Cyc. C. C. §§ 211-S, 3076 and notes. §2116. CONFLICT OF ORDERS. When the directions of a consignor and consignee are conflicting, the carrier must comply with those of the consignor in respect to all matters except the delivery of the freight, as to which he must com- ply with the directions of the consignee, unless the consignor has specially forbidden the carrier to receive orders from the consignee inconsistent with his own. History: Enacted March 21, 1872. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to stoppage in transitu, see Kerr's Cyc. C. C. § 2118 and note, and generally as to such right, see § 3076 and note. §2117. STOWAGE, DEVIATION, ETC. A marine carrier must not stow freight upon deck during the voyage, except where it is usual to do so, nor make any improper deviation from or delay in the voyage, nor do any other unnecessai*y act which would avoid an insurance in the usual form upon the freight. History: Enacted March 21, 1872. 125 C. 684, 685 (erroneously cited for § 3117), 58 P. 297. 298 (correct citation). As to deviation affecting insurer's liability for loss, see Kerr's Cyc. C. C. § 2697 and note. As to insurable interest, see Kerr's Cyc. C. C. §§ 2659-2665 and notes. As to loss caused by delay and deviation from route, see Kerr's Cyc. C. C. § 2196 and note. As to many miscellaneous matters as to carriers of prop- erty, see note § 2114, ante. As to marine insurance, see Kerr's Cyc. C. C. § 2655 and note. As to voyage and deviation from route in general, see Kerr's Cyc. C. C. §§ 2692-2694 and notes; 44 Cent. Dig. col. 513, § 455. 1112 Tit.Vir,cll.III,art.II.] DELIVERY. - §2118 As to when deviation from route is improper, see Kerr's Cyc. C. C. § 2696 and note. As to when deviation from route is proper, see Kerr's Cyc. C. C. § 2695 and note. §2118. DELIVERY OF FKEIGHT. A carrier of property must deliver it to the consignee, at the place to which it is addressed, in the manner usual at that place. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 94 C. 166, 170, 178, 29 P. 861, 17 L. 685 (construed and applied). As to carrier's place of delivery, see 52 A. S. 103. As to custom of usag-e, see Kerr's Cyc. C. C. § 2119 and note. As to delays and damages, see Kerr's Cyc. C. C. § 2114 and note. As to delivery to consignee or his agent, see 9 A. S. 511, 512; 61 A. S. 374. As to delivery to employees,^ agents, etc., see 61 A. S. 372. As to duty and liability as to goods sent C. O. D., see 61 A. S. 379. As to effect of custom regarding- delivery of baggage by baggage transfer companies, see 34 L. 140. As to evidence of usage varying common carrier's liability, see 42 A. D. 498. As to liability for loss of letters containing money,, etc., see Kerr's Cyc. C. C. § 2177 and note. As to liability of carrier for delivery of goods to wrong persoji, see Kerr's Cyc. C. C. § 2126 and note; 52 A. S. 103. As to liability of carrier when claim of third person is set up, see' Kerr's Cyc. C. C. § 2115 and note; 34 A. S. 731, 735. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to rights and equities of bona fide assignee of bill of lad- ing for value as against vendor's lien, see Kerr's Cyc. C. C. § 2127 and note. As to seizure under legal i)rocoss as excuse for failure to deliver, see 34 A. S. 735, 736. As to strikes affecting liability of carrier for delivery of freight, see Kerr's Cyc. C. C. § 2194 and note. As to usage regulating manner of delivery, see 8 A. D. 217. As to usage varying liability of carriers, see 27 A. D. 518; 31 A. D. 302, 303. As to vendor's lien on freight during transit, see Kerr's Cyc. C. C. § 2131 and note. Right of stoppage in transitu continues. — See 11 A. S. 767; 22 A. S. 715; 34 A. S. 541. 1113 §§ 2119, 2120 CIVIL CODE. [Div.III.Pt.IV. §2119. PLACE OF DELIVERY. If there is no usage to the contrary at the place of deliverJ^ freight must be deliv- ered as follows: 1. If carried upon a railway owned or managed by the car- rier, it may be delivered at the station nearest to the place to which it is addressed; 2. If carried by sea from a foreign country, it may be deliv- ered at the wharf where the ship moors, within a reasonable distance from the place of address; or, if there is no wharf, on board a lighter alongside the ship; or, 3. In other cases, it must be delivered to the consignee or his agent, personally, if either can, with reasonable diligence, be found. History: Enacted March 21, 1872. ■ See Kerr's Cyc. C. C. for 4 pars, annotation. 56 C. 484, 486 (construed with post §2120); 94 C. 166, 178. 29 P. 861, 17 L. 685 (construed with § 2120 and other sections). As to contract to deliver at designated point, see 10 L. 416. As to custom and usage with respect to delivery, see Kerr's Cyc. C. C. § 2118 and note. As to delivery to connecting carriers, see Kerr's Cyc. C. C. § 2201 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to reason for enacting this and related sections, see Kerr's Cyc. C. C. § 2118 and note. As to usage determining manner of delivery of letters con- taining money, etc., see Kerr's Cyc. C. C. § 2177 and note. § 2120. NOTICE WHEN FREIGHT NOT DELIVERED. If, for any reason, a carrier does not deliver freight to the con- signee or his agent personally, he must give notice to the consignee of its arrival, and keep the same in safety, upon his responsibility as a warehouseman, until the consignee has had a reasonable time to remove it. If the place of residence or business of the consignee be unknown to the carrier, he may give the notice by letter dropped in the nearest post- office. History: Enacted March 21. 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 247. 1114 i Tit.VII,ch.III,art.II.] failure TO accept. §§2121.2122 See Kerr's Cyc. C. C. for 20 pars, annotation. 56 C. 484, 485, 486 (construed and applied); 94 C. 166, 170. 177, 178, 179 (construed and applied), 29 P. 861, 862, 17 L. 685; 110 C. 348, 356, 52 A. S. 94, 42 P. 918 (construed and applied). As to detriment caused by breach of carrier's obligation to deliver freight, see Kerr's Cyc. C. C. § 3316 and note. As to detriment caused by carrier's delay in delivery of freight, see Kerr's Cyc. C. C. § 3317 and note. As to liability of carrier for baggage after arrival at destina- tion, see Kerr's Cyc. C. C. § 2182 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to reason for enacting this and related sections, see Kerr's Cyc. C. C. § 2118 and note. As to when liability of railroad carrier ceases, see 17 L. 691. §2121. WHEN CONSIGNEE DOES NOT ACCEPT. If a consignee does not accept and remove freight within a rea- sonable time after the carrier has fulfilled his obligation to deliver, or duly offered to fulfil the same, the carrier may exonerate himself from further liability by placing the freight in a suitable warehouse, on storage, on account of the con- signee, and giving notice thereof to him. Hi-story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 248. See Kerr's Cyc. C. C. for 3 pars, annotation. As to burden of proof in case of loss of goods in storage, see Kerr's Cyc. C. C. § 2120 and note pars. 11-14. As to delivery in general, see Kerr's Cyc. C. C. § 2118 and note. As to delivery to person otlier than consignee, see Kerr's Cyc. C. C. § 2131 and note. As to duty of consignee to receive and take goods, see 52 A. S. 103. As to liability of warehouseman, see Kerr's Cyc. C. C. §§ 1851- 1855, 2120 and notes; also 24 A. D. 146. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to when and how liability of carrier is reduced to that of warehouseman, see Kerr's Cyc. C. C. § 2120 and note pars. 4-7. §2122. WHEN CONSIGNEE CANNOT BE FOUND (re- pealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 248. 1115 / § 2126 CIVIL CODE. [Div.III.Pt.IV. ARTICLE III. BILL OF LADING. § 2126. Bill of lading, what. § 2127. Bill of lading negotiable. § 2128. Same. [To "bearer."] § 2129. Effect of bill of lading on rights, etc., of carrier. § 2130. Bills of lading to ,be given to consignor. § 2131. Carrier exonerated by delivery according to bill of lading. § 2132. Carrier may demand surrender of bill of lading before delivery. § 2126. BILL or LADING, WHAT. A bill of lading is an instrument in writing", signed by a carrier or his agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage, and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a specified place. History: Enacted March 21, 1872. See Kerr's Cyc. C. C for 20 pars, annotation. 61 C. 405, 416 (construed and applied). BIL.I, OF LADING. As contract of carriage. — See 1 W. & P. 790. • Same — By water. — See 20 L. ed. 804; 1 W. & P. 790. As receipt. — See 35 A. R. 327; 51 A. R. 51; 20 L. ed. 779; 1 W. & P. 793. As receipt and contract. — See 56 A. D. 676; 93 A. D. 184; 11 A. R. 109; 44 A. S. 37; 44 A. S. 852; 4 L. 244; 10 L. 416; 20 L. ed. 779; 26 L. ed. 998; 30 L. ed. 1077; 1 W. & P. 794. As to bills of lading in general, see 10 L. 416; 38 A. D. 407-426. As to clauses in bill of lading to which consignor does not assent in writing as affecting liability of carrier, see Kerr's Cyc. C. C. § 2176 and note. Same — As to insurer, see Kerr's Cyc. C. C. § 2697 and note. As to delivery of goods to person other than consignee named in bill of lading, see Kerr's Cyc. C. C. §§ 2118, 2119 and notes. As to destroying or suppressing bill of lading, etc., see Kerr's Cyc. Pen. C. § 579 and note. As to false bill of lading, making of, etc., see Kerr's Cyc. Pen. C. § 541 and note. 1116 i Tit.VII,ch.III,art.III.] negotiability. § 2127 As to issuing fictitious warehouse receipts, see Kerr's Cyc. Pen. C. § 578 and note. As to limiting liability by terms in bills of lading, etc., see Kerr's Cyc. C. C. §2176 and note; 61 A. S. 364. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to offense of issuing fictitious bill of lading, see Kerr's Cyc. Pen. C. § 577 and note. As to offense of selling, etc., merchandise for wliich bill of lading has been issued, see Kerr's Cyc. Pen. C. § 581 and note. As to warehouse receipts, see 52 A. S. 103. Assignee of bill of lading with draft attached, liability of^ consignee for failure of title to or defect in goods, or failure of consideration. — See 91 A. S. 212. Assignee's rights and liabilities under.— See 105 A. S. 332. Character and effect of. — See 10 L. 416. Conclusiveness of. — See 30 A. S. 634. Contradict, right to. — See 9 L. 263. Definition and effect of. — See 38 A. D. 407; 1 W. & P. 790. For goods not delivered for shipment. — See 53 A. R. 453. Issuance without receipt of goods.— See 7 A. C. 728. Liability of carrier upon, issued without receipt of goods. — See 7 A. C. 731. Limiting liability by.— See 5 A. S. 719; 88 A. S. 74. Manifest includes. — See 1 W. & P. 791. Negotiability of.— See 7 A. C. 728; 32 A. D. 541; 93 A. D. 208; 18 A. R. 299; 9 A. S. 504; 27 A. S. 861; 54 A. S. 672; 82 A. S. 771; 1 L. «50; 20 L. ed. 779; 25 L. ed. 892; 38 L. ed. 944; 1 W. & P. 791. Restriction in. — See 6 L. 489; 10 L. 415. Right to contradict. — See 9 L. 263. Rule as to valuation fixed in. — See 12 L. 799. To whom may delivery be made under. — See 38 L. 358. Warehouse receipts, under Statutes 1877;8, p. 949. See tit. "Warehouse and Wharfinger Receipts," Stats. 1877-8, p. 949, c. CDVII in Hen. G. L. p. 1472 and note, and Stats. 1905, c. CDLII, p. 611, for statute as re-enacted and now in force. § 2127. BILL OF LADING NEGOTIABLE. All the title to the freight which the first holder of a bill of lading had when he received it, passes to every subsequent indorsee thereof in good faith and for value, in the ordinary course of business, with like effect and in like manner as in the case of a bill of exchange. History: Enacted March 21. 1872. 1117 §§ 2128, 2129 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 6 pars, annotation. 61 C. 405, 416 (construed and applied with other sections); 110 C. 348, 358, 359, 52 A. S. 94, 42 P. 918 (construed and applied with other sections); 54 F. 306, 310, 311 (construed with §2128, showing that title to goods described in bills of lading drawn to order passes by indorsement, drawn to bearer by delivery, but reversing, 47 F. 468, 471, on ground that there was no indorsement by the party in whose favor the bill was drawn). As L^ allowing- another to assume apparent ownersliip of property for purpose of making transfer of it, and as to right of transferee in good faith in ordinary course of business and for value, see Kerr's Cyc. C. C. § 2991 and note. As to bills of lading, carrier's receipts, and warehouse receipts and transfer thereof by indorsement in general, see Kerr's Cyc. C. C. § 2126 and note pars. 4-6, 12, 13 and references. As to indorsement of bill of lading and rights of indorsee thereunder, see Kerr's Cyc. C. C. § 2126 and note; 55 A. D. 219. As to many miscellaneous matters as to carriers of pas- sengers, see note § 2114, ante. §2128. SAME. [TO "BEARER."] When a bill of lading is made to "bearer," or in equivalent terms, a simple transfer thereof, by delivery, conveys the same title as an indorse- ment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 61 C. 405, 416 (construed and applied with other sections); 110 C. 348, 359, 52 A. S. 94, 42 P. 918 (construed and applied with other sections); 54 F. 306, 310 .(applied). As to bills of lading, carrier's receipts, and warehouse re- ceipts, and transfer thereof in general, see Kerr's Cyc. C. C. § 2126 and note pars. 4-6, 12, 13 and references. As to delivery of freight under bill of lading made to bearer or to any holder of bill of lading, properly indorsed, see Kerr's Cyc. C. C. § 2131 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to title passing by transfer of bill of lading, see Kerr's Cyc. C. C. §2127 and note; 55 A. D. 299, 300. § 2129. EFFECT OF BILL OF LADING ON RIGHTS, ETC., OF CARRIER. A bill of lading does not alter the rights or obligations of the carrier, as defined in this chapter, unless it is plainly inconsistent therewith. History: Enacted March 21, 1872. 1118 Tit.VII,ch.III,art.III.] DELIVERY, EFFECT. §§ 2130, 2131 61 C. 405, 416 (cited and referred to with other sections); 110 C. 348, 359, 52 A. S. 94, 42 P. 918 (cited with other sections). As to bills of lading in general, see Kerr's Cyc. C. C. § 2126 and note. As to bills of lading in general, transfer thereof, etc., see •Kerr's Cyc. C. C. §§ 2126-2128 and notes. As to conversion by carrier, see Kerr's Cyc. C. C. § 2126 note pars. 17-20; also 2 L. 80; 21 L. 117, 118. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. § 2130. BILLS OF LADING TO BE GIVEN TO CONSIGNOR. A carrier must subscribe and deliver to the consignor, on demand, any reasonable number of bills of lading, of the same tenor, expressing truly the original contract for carriage ; and. if he refuses to do so, the consignor may take the freight from him, and recover from him, besides, all damages thereby occasioned. History: Enacted March 21, 1872. 61 C. 405, 416 (cited with other sections); 110 C. 348, 359, 52 A S 94 42' P. 918 (cited and referred to with other sections). As to' duplicate bills of lading and effect thereof, see Kerr's Cyc. C. C. § 2126 and note par. 8. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to marking duplicate receipts, bills of lading, etc., with "duplicate," see Kerr's Cyc. Pen. C. § 580 and note. §2131. CARRIER EXONERATED BY DELIVERY AC- CORDING TO BILL OF LADING. A carrier is exonerated from liability for freight by delivery thereof, in good faith, to any holder of a bill of lading therefor, properly indorsed, or made in favor of the bearer. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 61 C. 405, 416 (construed and applied with, other sections); 110 C. 348,' 357 (cited as not applying), 359 (construed and applied with other sections), 52 A. S. 94, 42 P. 918. As to delivery in general, see Kerr's Cyc. Pen. C. § 2118 and note. ^^ As to delivery upon production of bill of lading, see Kerr s Cyc. Pen. C. §§ 2126-2129 and notes; also 9 A. S. 512, 513. 1119 § 2132 CIVIL CODE. [Div.III.Pt.IV. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to what is sufficient delivery to terminate carrier's lia- bility, see 8 A. D. 211; 42 A. D. 497. § 2132. CARRIER MAY DEMAND SURRENDER OF BILL OF LADING BEFORE DELIVERY. When a carrier has given a bill ot lading, or other instrument substantially equivalent thereto, he may require its surrender, or a reasonable indem- nity against claims thereon, before delivering the freight. History: Enacted March 21, 1872. 61 C. 405, 416 (referred to with other sections). As to bill of lading, presentation and surrender of, upon delivery of freight, see Kerr's Cyc. C. C. §§ 2127, 2128, 2131 and notes. As to limitations of powers of general agent, see Kerr's Cyc. C. C. § 2322 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. - 1120 Tit.VII,ch.III,art.IV.] freightage, liability. §§ 2136-2138 ARTICLE IV. FREIGHTAGE. § 2136. When freightage is to be paid. § 2137. Consignor, when liable for freightage. § 2138. Consignee, when liable. § 2139. Natural increase of freight. § 2140. Apportionment by contract. § 2141. Same. [No objection on partial delivery.] § 2142. Apportionment according to distance. § 2143. Freight carried further than agreed, etc. § 2144. Carrier's lien for freightage [and for services]. § 2136. WHEN FKEIGHTAGE IS TO BE PAID. A carrier may require his freightage to be paid upon his receiving the freight; but if he does not demand it then, he cannot until he is ready to deliver the freight to the consignee. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to freightage, when earned, etc., see 52 A. D. 286; 60 A. D. 150-152, 160; 24 A. R. 339. As to lien for freightage, see Kerr's Cyc. C. C. § 2144 and note; also note 79 A. D. 368. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. § 2137. CONSIGNOR, IVHEN LIABLE FOR FREIGHTAGE. The consignor of freight is presumed to be liable for the freightage, but if the contract between him and the carrier provides that the consignee shall pay it, and the carrier allows the consignee to take the freight, he cannot afterwards recover the freightage from the consignor. Ili.-story: Enacted March 21, 1872. 2138. CONSIGNEE, WHEN LIABLE. The consignee of freight is liable for the freightage, if he accepts the freight with notice of the intention of the consignor that he should pay it. History: Enacted March 21, 1872. Kerr's C. C. — 36 1121 §§ 2139-2141 CIVIL CODE. [Div.III.Pt.IV. As to liability of consignee for freight money, see Kerr's Cyc. C. C. § 2138 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. § 2139. NATURAL INCREASE OF FREIGHT. No freight- age can be charged upon the natural increase of freight. History: Enacted March 21, 1872. As to carriage of live stock, see Kerr's Cyc. C. C. § 2194 and note. As to live stock, carriage of, etc., see Kerr's Cyc. C. C. § 2194 and note; also note § 2114, ante. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. §2140. APPORTIONMENT BY CONTRACT. If freightage is apportioned by a bill of lading or other contract made between a consignor and carrier, the carrier is entitled to payment, according to the apportionment, for so much as he delivers. History: Enacted March 21, 1872. As to deduction for' short delivery, damage to goods, etc., see note § 2114, ante; 60 A. D. 152. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. §2141. SAME. [NO OBJECTION ON PARTIAL BELIY- ERT.] If a part of the freight is accepted by a consignee, without a specific objection that the rest is not delivered, the freightage must be apportioned and paid as to that part, though not apportioned in the original contract. HLstory: Enacted March 21, 1872. As to apportioninent of freight in general, see Kerr's Cyc. C. C. § 2142 and note. As to decay of part of cargo in transitu, see 17 L. ed. 89. As to deduction for short delivery, damage to freight, etc., see 60 A. D. 152. As to detriment caused by breach of carrier's obligation to deliver freight, see Kerr's Cyc. C. C. § 3316 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. 1122 Tit.VII,ch.III,art.IV.] APPORTIONMENT. §§ 2142-2144 §2142. APPORTIOXME]NT ACCORDOG TO DISTANCE. If a consignee voluntarily receives freight at a place short of the one appointed for deliverJ^ the carrier is entitled to a just proportion of the freightage, according to distance. If the carrier, being ready and willing, offers to complete the transit, he is entitled to the full freightage. If he does not thus offer completion, and the consignee receives the freight only from necessity, the carrier is not entitled to any freight- age. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to carrier's lien for full freightage, see Kerr's Cyc. C. C. § 2144 and note. As to freightage pro rata itineris, see 62 A. D. 153, 154. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. §2143. FREIGHT CARRIED FURTHER THAN AGREED, ETC. If freight is carried further, or more expeditiously, than was agreed upon by the parties, the carrier is not enti- tled to additional compensation, and cannot refuse to deliver it, on the demand of the consignee, at the place and time of its arrival. History: Enacted March 21, 1872. As to carrying freight farther than agreed, extra charge, see Kerr's Cyc. C. C. § 2143, note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. § 2144. CARRIER'S LIEN FOR FREIGHTAGE [AND FOR SERVICES]. A carrier has a lien for freightage and for services rendered at request of shipper or consignee in and about the transportation, care and preservation of the pro- perty, and he also has a lien for money advanced at request of shipper or consignee to discharge a prior lien. His rights to such lien are regulated by the title on liens. History: Enacted Mai-ch 21, 1872; amended April 19, 1909, Stats, and Amdts. 1909, p. 1000. 1123 § 2144 CIVIL CODE. [Div.III,Pt.IV. See Kerr's Cyc. C. C. for 4 pars, annotation. As to bottomry contracts and liens, see Kerr's Cyc. C. C. §§ 3017-3029 and notes. As to contracts of respondentia, see Kerr's Cyc. C. C. §§ 3036- 3040 and notes. As to lien of master of ship upon ship and freightage for advances, etc., see Kerr's Cyc. C. C. § 3055 and note. As to lien of mate and seaman of ship upon ship and freight- age, see Kerr's Cyc. C. C. § 3056 and note. As to lien on passengers' luggage, see Kerr's Cyc. C. C. § 2191 and note. As to lien upon vessel for materials furnished for its con- struction, repair, or equipment, see Kerr's Cyc. C. C. P. § 813 and note. As to liens in general, see Kerr's Cyc. C. C. §§ 2872 et seq. and notes. As to liens of ship-owners for freightage upon cargoes received from shipping merchants in usual course of business of shipping and selling produce, see Kerr's Cyc. C. C. §§ 2319, 2369 and notes. As to liens on cargo for salvage, see Kerr's Cyc. C. C. § 2079 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to non-authority of commission merchants to pledge goods of another, see Kerr's Cyc. C. C. § 2368 subd. 2 and note. As to seaman's lien, see Kerr's Cyc. C. C. § 3056 and note. As to stoppage in transitu as means of enforcing lien of seller, see Kerr's Cyc. C. C. §2118 and note; also post §§3076- 3080. 1124 TitVII,ch.III,art.V.] JETTISON, ETC. §2148 ARTICLE V. GENERAL AVERAGE. § 2148. Jettison and general average, what. § 2149. Order of jettison. § 2150. By whom made. § 2151. Loss, how borne. § 2152. General average loss, how adjusted. § 2153. Values, how ascertained. § 2154. Things stowed on deck. § 2155. Application of the foregoing rules. § 2148. JETTISON AND GENERAL AVERAGE, WHAT. A carrier by water may, when in case of extreme peril it is necessary for the safety o£ the ship or cargo, throw overboard, or otherwise sacrifice, any or all of the cargo or appurte- nances of the ship. Throwing property overboard for such purpose is called jettison, and the loss incurred thereby is called a general average loss. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to acts of God in general, see Kerr's Cyc. C. C. § 2194 and note. As to adjustment of loss under general average, see Kerr's Cyc. C. C. § 2153 and note. As to admeasurement of values of ship and freightage, see Kerr's Cyc. C. C. § 2153 and note. As to authority of master to hypothecate ship freightage, cargo, etc., see Kerr's Cyc. C. C. § 2377 and note. As to authority of master to sell cargo when absolutely necessary, see Kerr's Cyc. C. C. § 2379 and note. As to duty of manager of ship to provide for seaworthiness of ship, see Kerr's Cyc. C. C. § 2071 and note. As to estimating value of ship and freight to determine various contributory interests, see 2 A. D. 207, 209. As to general average, see 14 A. D. 613, 614. As to jettison at sea being act of God, see Kerr's Cyc. C. C. § 2194 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to obligations of marine carriers in general, see Kerr's Cyc. C. C. § 2114 and note. 1125 §§ 2149-2152 CIVIL CODE. [Div.III,Pt.IV. As to "perils of the sea," see Kerr's Cyc. C. C. § 2199 and note. As to stowage on deck, see Kerr's Cyc. C. C. § 2154 and note. As to voluntary sacrifice being necessary that doctrine of general average be applied, see 14 A. D. 613, 614. As to wages of crew and value of provisions as subjects of general average, see 2 A. D. 207; 29 A. D. 461. As to wages of crew, value of provisions, etc., as subjects of generai ctvorage, see 2 A. D. 207; 29 A. D. 461. §2149. OEDEE OF JETTISON. A jettison must begin with the most bulky and least valuable articles, so far as possible. History: Enacted March 21, 1872. See Code de Com. art. 411. As to jettison, see ante § 2040 and note, post § 2150. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. §2150. BY WHOM MADE. A jettison can be made only by authority of the master of a ship, except in case of his disability, or of an overruling necessity when it may be made by any other person. History: Enacted March 21, 1872. As to jettison, etc., see Kerr's Cyc. C. C. § 2148 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. § 2151. LOSS, HOW BOEXE. The loss incurred by a jetti- son, when lawfully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage, and cargo for the benefit of which the sacrifice is made, as well as by the owner of the thing sacrificed. History: Enacted March 21, 1872. As to jettison, adjustment of loss, etc., see Kerr's Cyc. C. C. § 2148 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. §2152. GENEEAL AYEEAGE LOSS, HOW ADJUSTED. The proportions in which a general average loss is to be borne must be ascertained by an adjustment, in which the 1126 TitVII,ch.III,art.V.] VALUES. §§2153,2154 owner of each separate interest is to be charged with such proportion of the value of the thing lost as the value of his part of the property affected bears to the value of the whole. But an adjustment made at the end of the voyage, if valid there, is valid everywhere. History: Enacted March 21, 1872. 58 F. 801, 803 (cited — regulating adjustment of general aver- age losses). As to general average loss, how borne and adjusted, see Kerr's Cyc. C. C. § 2148 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. §2153. VALUES, HOW ASCERTAINED. In estimating values for the purpose of a general average, the ship and appurtenances must be valued as at the end of the voyage, the freightage at one-half the amount due on delivery, and the cargo as at the time and place of its discharge; adding, in each case, the amount made good by contribution. History: Enacted March 21, 1872. 58 F. 801, 803 (the provisions of this section are conclusive as to the rule to be observed in ascertaining contributory value of freight in general average). As to estimating value of ship, cargo, etc., for purposes of general average, see Kerr's Cyc. C. C. § 2148 and note. As to many miscellaneous matters as to carriers of pas- sengers, see note § 2114, ante. §2154. THING STOWED ON DECK. The owner of things stowed on deck, in case of their jettison, is entitled to the benefit of a general average contribution only in case it is usual to stow such things on deck upon such a voyage. History: Enacted March 21, 1872. As to jettison in general, see Kerr's Cyc. C. C. § 2148 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to stowage on deck, deviation, etc., see Kerr's Cyc. C. C. § 2117 and note. 1127 § 2155 CIVIL CODE. [Div.III,Pt.IV. § 2155. APPLICATION OF THE FOREGOING RULES. The rules herein stated concerning jettison are equally applicable to every other voluntary sacrifice of property on a ship, or expense necessarily incurred, for the preservation of the ship and cargo from extraordinary perils. History: Enacted March 21, 1872. 58 F. 801, 803 (cited — regulating adjustment of general aver- age losses). As to many miscellaneous matters as to carriers of property, see note § 2114, ante. 1128 Tit.VII.ch.IV.] MESSAGES. § 2161 CHAPTER IV. CARRIERS OF MESSAGES. § 2161. Obligation of carrier of messages. § 2162. Degree of care and diligence required. §2161. OBLIGATION OF CARRIER OF MESSAGES. A carrier of messages for reward, other than by telegraph or telephone, must deliver them at the place to which they are addressed, or to the person for whom they are intended. Such carrier, by telegraph or telephone, must deliver them at such place and to such person, provided the place of address, or the person for whom they are intended, is within a distance of two miles from the main office of the carrier in the city or town to which the messages are transmitted, and the car- rier is not required, in making the delivery, to pay on his route toll or ferriage; but for any distance beyond one mile from such office, compensation may be charged for a messen- ger employed by the carrier. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 248; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 413, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 627. 66' C. 579, 586, 57 A. R. 119, 6 P. 637 (construed in dis. op.); 123 C. 428, 430, 56 P. 103 (construed and applied with § 2162). As to carrier of messages, generally, see note § 536, ante. As to carrier of messages not being common carrier, see Kerr's Cyc. C. C. § 2168 and note. As to duties, liabilities, etc., of carriers of messages, see Kerr's Cyc. C. C. § 2162 and note. As to offense committed in refusing or neglecting to send or postpone or deliver message, see Kerr's Cyc. Pen. C. § 638 and note. As to offense of agent, operator, or employee using or appro- priating information from private message to his own advan- tage or profit, see Kerr's Cyc. Pen. C. § 639 and note. As to offense of bribing or attempting to bribe telegraph operator, see Kerr's Cyc. Pen. C. § 641 and note. 1129 § 2162 CIVIL CODE. [Div.III.Pt.IV. As to offense of person who by means of machine, instrument, or contrivance, etc., reads or attempts to read message, see Kerr's Cyc. Pen. C. § 640 and note. § 2162. DEGREE OF CARE AND DILIGENCE REQUIRED. A carrier of messages for reward must use great care and dili- gence in the transmission and delivery of messages. History: Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 249. See Kerr's Cyc. C. C. for 35 pars, annotation. 66 C. 579, 581, 586 (construed in dis. op.), 56 A. R. 119, 6 P. 637, 638. See 4 P. 657, 661; 123 C. 428, 430 (construed and applied). 56 P. 103; 130 C. 657. 660 (construed and applied), 80 A. S. 153, 160, 63 P. 83, 53 L. 678; 61 Fed. 624, 625, 627, 15 U. S. App. 445, 9 C. C. A. 680 (construed with § 2168 — degree of care prescribed by statute is complied with when). As to actual damages sustained by reason of delays, errors, etc., in transmission of messages, see 10 A. S. 782-785. As to damages for injury to feeling for failure or delay in delivering messages, see 10 A. S. 788-790. As to detriment caused by breach of carrier's obligation to accept messages, see Kerr's Cyc. Pen. C. § 3315 and note. As to elements of damage in actions against telegraph com- panies for failure to send or deliver messages, see 10 A. S. 778, 782. As to knowledge of importance of message as affecting ques- tion of damages, see 10 A. S. 785, 786. As to limitation of liability of carrier of messages, see Kerr's Cyc. C. C. § 2168 and note. As to mental suffering, see Kerr's Cyc. C. C. § 2100, pars. 82, 83 note. As to message disclosing its own importance, see 10 A. S. 786, 788. As to regulation as to repeating messages, see 32 A. S. 798. Mental suffering not element of damage for delay in delivery. See 66 A. S. 873-875. Telegraph companies may stipulate for limitation of liability for errors. — See 71 A. D. 467, 469, 472, 474; 1 A. S. 358. 1130 Tit.VII,ch.V,art.I.] COMMON CARRIERS. § 2168 CHAPTER V. COMMON CARRIERS. Article I. Common Carriers in General, §§ 2168-2177. II. Common Carriers of Persons, §§ 2180-2191. III. Common Carriers of Property, §§ 2194-2204. IV. Common Carriers of Messages, §§2207-2209. ARTICLE I. COMMON CARRIERS IN GENERAL. § 2168. Common carrier, what. § 2169. Obligation to accept freight. § 2170. Common carriers not to give preference. § 2171. What preferences he must give. § 2172. Starting. § 2173. Compensation. § 2174. Obligations of carrier altered only by agreement. § 2175. Certain agreements void. § 2176. Modifications thereof. § 2177. Loss of valuable letters. § 2168. COMMON CARRIER, WHAT. Every one who offers to the public to carry persons, property, or messages, except- ing only telegraphic messages, is a common carrier of what- ever he thus offers to carry. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 249. - See Kerr's Cyc. C. C. for 33 pars, annotation. 66 C. 579, 581, 586, 56 A. R. 119, 6 P. 637, 638 (construed and applied); 61 F. 624, 625, 627 (construed with §2162 — degree of care prescribed by statute is complied with when). As to baggage transfer companies, when and when not liable as common carriers, see 34 L. 137-139. As to carriers as bailees, see 6 L. 619, 620. As to carrier's liability where a servant appropriates money received for carriage, see 56 A. D. 84. As to common carrier's responsibilities for agent's contracts, see 56 A. D. 84. 1131 § 2168 CIVIL CODE. [Div.III,Pt.IV. As to common carriers, who are, in general, see 14 A. D. 751, 752; 26 A. D. 467; 28 A. D. 657; 31 A. D. 751; 37 A. D. 467; 40 A. D. 100, 782; 42 A. D. 496, 497; 47 A. D. 648-653; 63 A. D. 138; 64 A. D. 124; 73 A. D. 176; 83 A. D. 82; 87 A. D. 720-722; 91 A. D. 66; 11 A. R. 656; 12 A. R. 501; 36 A. R. 504, 505; 4 A. S. 628; 6 L. 619; 10 L. 415, 416. As to deg-ree of care, skill, and diligence required of pas- senger carriers, see ante § 2100 and note, and see 2 L. 84. As to ferries on streams between counties, see Hen. G. L. pp. 455, 456; see also note § 528, ante. As to ferry depot at San Francisco, see Hen. G. L. pp. 456- 459. As to fires caused by engines of carriers, see Kerr's Cyc. C. C. § 3333 and note. As to inability of carrier to relieve itself from liability imposed upon it by law, see Kerr's Cyc. C. C. § 2175 and note. As to inspection of passengers for prevention of introduction of diseases into the state, see Hen. G. L. pp. 506, 507. As to interstate commerce, see act of Congress of February 4, 1887, ch. 104, 24 Stats, at L. 379, 3 F. S. A. 809; act of March 2, 1889, ch. 382, 25 Stats, at L. 855, 3 F. S. A. 852; act of March 2, 1889, ch. 411, 25 Stats, at L. 954, 3 F. S. A. 856; act of August 8, 1890, ch. 728, 26 Stats, at L. 313, 3 F. S. A. 853; act of February 11, 1893, ch. 83, 27 Stats, at L. 443, 3 F. S. A. 855. As to interstate commerce, power of Congress to regulate, etc., see 27 A. S. 547-550. As to liability of carriers at common law, see further Kerr's Cyc. C. C. § 2194 and note. As to liability of sleeping-car company, see 21 L. 289. As to marine carriers, who are, see 47 A. D. 651, 652, 653, 654. As to obligations imposed on carrier by contract, see 2 L. 85, 86. For presumption of negligence in carriage of freight, see Kerr's Cyc. C. C. §2114 and authorities there cited. As to provision for appointment of policemen on cars or boats of railroad and steamship companies, see Hen. G. L. p. 1066. As to powers and duties of railroad commissioners, see Hen. G. L. pp. 1109-1112 and note. As to quarantine of animals brought into state of California from infected districts, see Hen. G. L. pp. 1106, 1107. As to railroad companies as private carriers, drawing special cars or special trains, etc., see 30 L. 161, 162. As to rates and lowering of for purpose of competing with other common carriers, and governmental authority in such cases, see § 20 Art. XII State Constitution, Hen. G. L. p. xcvi, and Kerr's Cyc. C. C. § 2173 and note. As to regulation of freights and fares on railroads, see Kerr's Cyc. C. C. § 484 and note. 1132 Tit.VII,ch.V,art.I.] COMMON CARRIERS. §§ 2169, 2170 As to right of states to regulate charges of carriers, see 15 A. S. 483, 943, 27 A. S. 567, 568. As to sleeping-car companies' liabilities as carriers, see 21 L. 291, 292. As to state harbor commissioners, see Hen. G. L. pp. 1280-1285. As to when liability as carrier ceases, see 10 L. 417. Common carriers, who are not — Sleeping-car company. — See 21 L. 291, 292, 298. § 2169. OBLIGATION TO ACCEPT FREIGHT. A common carrier must, if able to do so, accept and carry wliatever is offered to him, at a reasonable time and place, of a kind that he undertakes or is accustomed to carry. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 70 C. 169, 178, 59 A. R. 404, 11 P. 686, 690 (common carrier of goods is not under obligation to accept and carry all personal property that may be offered); 81 C. 296, 298, 15 A. S. 61, 22 P. 859, 6 L. 336 (duty of street-railroad as common carrier to accept and carry passengers must have reasonable performance). As to carrier's right to require payment of freightage upon receipt or delivery of freight, see Kerr's Cyc. C. C. § 2136 and note. As to consignor being liable -for freightage in absence of special contract to contrary, see Kerr's Cyc. C. C. § 2137 and note. As to preferences by carriers, see Kerr's Cyc. C. C. § 2170 and note. As to refusal of railroad to carry passengers, see Kerr's Cyc. C. C. § 482 and note. As to transportation of dangerous articles under special con- tract, see Kerr's Cyc. C. C. § 2174 and note. §2170. COMIION CARBIEES NOT TO GIVE PREFER- ENCE. A common carrier must not give preference in time, price, or otherwise, to one person over another. Every com- mon carrier of passengers by railroad, or by vessel plying upon waters lying wholly within this state, shall establish a schedule time for the starting of trains or vessel [s] from their respective stations or wharves, of which public notice shall be given, and shall, weather permitting, except in case of accident or detention caused by connecting lines, start their said trains or vessel [s] at or within ten minutes after 1133 §§2171,2172 CIVIL, CODE. [Div.III.Pt.IV. the schedule time so established and notice given, under a penalty of two hundred and fifty dollars for each neglect so to do, to be recovered by action before any court of compe- tent jurisdiction, upon complaint filed by the district attorney of the tounty in the name of the people, and paid into the com- mon s-^'^iol funci of the said county. History: Enacted March 21, 1872; amended April 2, 1880, Code Amdts. 1880 (C. C. pt.), p. 2; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 414, held unconstitutional, see history, § 4 ante. See Kerr'^s Cyc. C. C. for 5 pars, annotation. 70 C. 169, 178, 59 A. R. 404, 11 P. 686, 690 (cited). As to duty of railroads to adopt time schedule and conform to same, see Kerr's Cyc. C. C. § 481 and note pars. 69-77. As to effect of lowering rates by railroad companies for pur- poses of competition, see Kerr's Cyc. C. C. § 2173 and note par. 3. As to offense of overcharging for carriage of passengers or freight, see Kerr's Cyc. Pen. C. § 525 and note. As to rates of freights and fares, see Kerr's Cyc. C. C. § 489 and note. § 2171. WHAT PREFERENCES HE MUST GIVE. A com- mon carrier must always give- a preference in time, and may give a preference in price, to the United States and to this state. History: Enacted March 21, 1872. As to compensation of common carriers, reasonableness of, and the like, see Kerr's Cyc. C. C. § 2178 and note. As to preferences, see Kerr's Cyc. C. C. § 2170 and note. As to public nature of coinirion carriers, see Kerr's Cyc. C. C. § 2168 and note. § 2172. STARTING. A common carrier must start at such time and place as he announces to the public, unless detained by accident or the elements, or in order to connect with car- riers on other lines of travel. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 249. As to duty of railroad corporation to regulate time schedule for transportation of persons and property, see Kerr's Cyc. C. C. § 481 and note. 1134 I Tit.VII,ch.V,art.I.] COMPENSATION. §§ 2173, 2174 As to liability for delay, see Kerr's Cyc. C. C. § 2196 and note. As to obligation to perform, see Kerr's Cyc. C. C. § 2170 and note. § 2173. COMPENSATION. A common carrier is entitled to a reasonable compensation and no more, which he may require to be paid in advance. If payment thereof is refused, he may refuse to carry. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to averment in complaint of discrimination or inequality not being equivalent to allegation of excessive charge, see Kerr's Cyc. C. C. § 2170 and note par. 4. As to jurisdiction of railroad commission to hear and deter- mine complaints against transportation companies, see Const. 1879 art. XII, § 22, Hen. G. L. p. xcvi. As to lien for freightage, see Kerr's Cyc. C. C. § 2144 and note. As to lien on luggage, see Kerr's Cyc. C. C. § 2191 and note. As to right of carrier to carry for favored individuals at unreasonably low rate or even gratis, see Kerr's Cyc. C. C. § 2170 note pars. 2, 3. As to state authority over railroad corporations and right to regulate fares and freights, see Const. 1879, art. XII § 20, Hen. G. L. p. xcvi. § 2174. OBLIGtATIONS OF CARRIER ALTERED ONLY BY AGREEMENT. The obligations of a common carrier cannot be limited by general notice on his part, but may be limited by special contract. History: Enacted March 21, 1872; ainended March 30, 1874, Code Amdts. 1873-4, p. 249. See Kerr's Cyc. C. C. for 16 pars, annotation. 120 C. 156, 158, 159 (applied and construed), 47 P. 874, 52 P. 302, 40 L. 350; 151 C. 763, 767, 770, 91 P. 603 (construed with § 2175 — rule of common law as to ordinary negligence has been abrogated); 2 C. A. 173, 175, 83 P. 265 (cited as to power to limit liability). As to agent's power to bind owner by contract for limiting liability, see 7 Am. R. & Corp. Rep. 308-311. As to benefits under special contract inuring to connecting carrier, see 7 Am. R. & Corp. Rep. 323-325. As to burden of proof upon contracts restricting liability, see 7 Am. R. & Corp. Rep. 327-337. 1135 § 2174 CIVIL CODE. [Div.III,Pt.IV. As to carrier's inability to exempt itself from liability for negligence, fraud, or wilful wrong, see Kerr's Cyc. C. C. § 2175 and note. As to carrier's liability in general, see Kerr's Cyc. C. C. §§ 2096, 2100, 2114, 2168 and notes. As to carrier's right to limit his common-law liability for loss not due to negligence, see 7 Am. R. & Corp. Rep. 282, 283. As to cuiiQict of laws regarding limitation of liability, see 88 A. S. 125, 129. As to consideration for agreement limiting liability, see 7 Am. R. & Corp. Rep. 311-314. As to effect of change of route or mode of carriage upon con- tract limiting liability, see 7 Am. R. & Corp. Rep. 337. As to exemption from liability, in general, see 10 L. 417. As to exceptions to common carrier's liability, see Kerr's Cyc. C. C. § 2194 and note. As to failure to read bill of lading, assent of shipper, etc., see 88 A. S. 82, 83. As to general doctrine of limitation of liability, see 32 A. D. 497-500. As to gratuitous carriage of property and limitation of lia- bility thereon, see 7 Am. R. & Corp. Rep. 299, 300. As to interstate law and law of place as applied to limitations of liability, see 7 Am. R. & Corp. Rep. 325-327. As to limitation of express companies' liability, see 61 A. S. 363. As to limitation of liability by advertisements, see 32 A. D. 505. As to limitation of liability by contract, see 10 L. 419. As to limitation of liability by express contract, see 56 A. D. 84; 85 A. D. 230; 13 A. S. 783. As to limitation of liability given by printing on backs of receipts, etc., see 32 A. D. 505. As to limitation of liability of baggage, transfer companies, see 34 L. 138, 139. As to limitation of liability of carrier of messages, see Kerr's Cyc. C. C. §§ 2161 and 2162 and notes. As to limitations of carrier's liability by acceptance of ticket, bill of lading, etc., as stated thereon, see Kerr's Cyc. C. C. § 2176 and note. As to limitations of liability requiring assent by signature, see Kerr's Cyc. C. C. § 2176 and note. As to limiting liability as to value, see 61 A. S. 366-369. As to limiting liability by notice, see 32 A. D. 502-507; 61 A. S. 366; also 32 A. D. 470; 42 A. D. 498; 56 A. D. 84; 7 Am. R. & Corp. Rep. 300-302. As to limiting liability over connecting lines, see Kerr's Cyc. C. C. § 2201 and note, and see 61 A. S. 371; 72 A. D. 231-247; 10 L. 418. 1136 Tit.VII,ch.V,art.I.] void AGREEMENTS. § 2175 As to live stock, carriage of, and contracts limiting- liatiility therefor, see 67 A. D. 216, 217. As to requirement that limitations for liability be just and reasonable, see 7 Am. R. & Corp. Rep. 316; 13 A. S. 784-787; 46 A. S. 778. As to responsibility of carrier, when terminates, etc., see 56 A. D. 84. As to restrictions on power to limit liability, see 10 L. 419. As to stipulations limiting time of bringing action, see 13 A. S. 785. As to right of carrier to exact special contract from shipper, see 46 A. S. 777, 780. As to rule that all limitations of liability are strictly con- strued against carrier, see 7 Am. R. & Corp. Rep. 316-319. As to special provisions for carriage of money, etc., by rail- road companies, see Kerr's Cyc. C. C. § 2169 and note. Forwarders are not insurers like carriers. — See 88 A. D. 418; 91 A. D. 303; 93 A. D. 106; 99 A. D. 586. §2175. CERTAIN AGREEMENTS VOID. A common car- rier cannot be exonerated, by any agreement made in antici- pation thereof, from liability for the gross negligence, fraud, or wilful wrong of himself or his servants. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. 118 C. 683, 689, 690, 691, 50 P. 847 (construed and applied); 120 C. 156, 158, 47 P. 874, 52 P. 302, 40 L. 350; 131 C. 582, 586, 587. 589, 63 P. 915 (construed and applied); 151 C. 763, 767, 768, 770 (construed — nothing is added to restrictive force of common- law rule and section should not be construed as restricting right of contract to any narrower compass than common law re- stricted it), 777 (cited in dis. op. to point that the making of a contract exonerating carrier from liability is prohibited), 91 P. 603, 604, 605, 608. As to carrier's liability for negligence and effect of special contracts relieving, or attempting to relieve therefrom, see 32 A. D. 495-507; 50 A. D. 666; 62 A. D. 128-130; 82 A. D. 290-295, 379; 88 A. D. 765; 89 A. D. 163, 164; 91 A. D. 788, 789; 92 A. D. 56, 610; 93 A. D. 73, 167; 94 A. D. 566; 97 A. D. 181, 182; 9 A. S. 795; 13 A. S. 782-787. As to competency of telegraph companies to stipulate for limitation of liability for errors arising from any cause except wilful misconduct or gross negligence, see Kerr's Cyc. C. C. § 2162 and note. As to contracts for exemption from liability for negligence by stipulations in free pass, see 1 L. 501. 1137 § 2176 CIVIL CODE. [Div.III,Pt.IV. As to contracts for exemptions not excusing carrier from exercising reasonable care, see 7 Am. R. & Corp. Rep. 319, 320. As to contracts providing for exemption from liability for negligence, see note 1 L. 500. As to distinction between negligence of carriers and negli- gence of agents and servants, see 7 Am. R. «& Corp. Rep. 293- 298. As to distinction between slight negligence, ordinary negli- gence, and gross negligence as to carriage of passengers, see ■Kerr's Cyc. C. C. § 2096 and note. As to limitation of liability for negligence, generally, see 7 Am. R. & Corp. Rep. 284-293. As to loss by negligence, doctrine that carrier cannot limit value of goods, see 88 A. S. Ill, 112. As to ordinary measure of damages for breach of carrier's obligation to deliver freight, see Kerr's Cyc. C. C. § 3316 and note. As to New York doctrine permitting carrier to make special contract to exonerate himself from effects of gross negligence, see 32 A. D. 500, 501. §2176. MOMFICATIOKS THEREOF. A passenger, con- signor, or consignee, by accepting a ticket, bill of lading, or written contract for carriage, with a knowledge of its terms, assents to the rate of hire, the time, place, and manner of delivery therein stated; and also to the limitation stated therein upon the amount of the carrier's liability in case prop- erty carried in packages, trunks, or boxes, is lost or injured, when the value of such property is not named; and also to the limitation stated therein to the carrier's liability for loss or injury to live animals carried. But his assent to any other modification of the carrier's obligations contained in such instrument can be manifested only by his signature to the same. History; Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 249-250. See Kerr's Cyc. C. C. for 22 pars, annotation. 66 C. 294, 299 (construed and applied), 44 A. R. 61, 5 P. 478, 481; 101 C. 187, 195, 35 P. 630 (construed and applied); 113 C. 329, 334, 45 P. 691, 36 L. 648 (construed and applied); 118 C. 683, 689, 691, 50 P. 847 (construed and applied); 131 C. 582, 586, 587, 589, 63 P. 915 (construed and applied). As to connecting lines and carrier's duty to tranship goods, 1138 Tit.VII,ch.V,art.L] VALUABLE LETTERS. §2177 and as to his liability under special contract, see Kerr's Cyc. C. C. § 2201 and note; also § 2174 and note. As to general right of any one to waive advantage of law intended solely for his own benefit, see Maxims of Jurisprudence, post § 3513. As to insurer's non-liability for loss of freight because of improper deviation from voyage, see Kerr's Cyc. C. C. § 2697 and note. As to live stock, carriage of, in general, see 4 L. 545; 9 L. 450. As to notices printed or stamped on tickets or checks, in gen- eral, see 32 A. D. 505, 506. As to passenger being bound by terms and conditions of ticket, see 5 L. 819. As to receipt and acceptance of, etc., as proof of assent to its terms, see 7 Am. R. & Corp. Rep. 304-308. As to when notice is efficient without assent, see 32 A. D. 506.' § 2177. LOSS OF VALUABLE LETTERS. A common car- rier is not responsible for loss or miscarriage of a letter, or package having the form of a letter, containing money or notes, bills of exchange, or other papers of value, unless he be informed at the time of its receipt of the value of its con- tents. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 250. See Kerr's Cyc. C. C. for 6 pars, annotation. As to carriage of money, etc., by railroad companies, see Kerr's Cyc. C. C. § 2169 and note. As to carriage of treasure, liability for loss, etc., see Kerr's Cyc. C. C. § 2200 and note. As to shipper estopped from saying that value of articles is greater than that on which compensation for carriage is based, see Kerr's Cyc. C. C. § 2176 and note par. IS. 1139 § 2180 CIVIL CODE. [Div.III,Pt.IV. ARTICLE II. COMMON CARRIERS OF PERSONS. § 2180. Obligation to carry luggage [baggage.] § 21S1. Luggage deflned. [Blcj-cle.] § 2182. Liability for luggage. § 2183. Luggage, how carried and delivered. § 2184. Obligation to provide vehicles. § 2185. Seats for passengers. § 2186. Regulations for conduct of business. § 2187. Fare, when payable. § 2188. Ejection of passengers. § 2189. Passenger who has not paid fare. § 2190. Fare not payable after ejection. § 2191. Carrier's lien. § 2180. OBLIGATION TO CARRY LUGGAGE [BAGGAGE]. A common carrier of persons, unless his vehicle is fitted for the reception of persons exclusively, must receive and carry a reasonable amount of baggage for each passenger without charge, except for an excess of weight over one hundred pounds to a passenger; if such carrier is a proprietor of a stage line, he need not receive and carry for each passenger by such stage line, without charge, more than sixty pounds of baggage. History: Enacted March 21, 1872; amended March 9, 1878, Code Amdts. 1877-8, p. 87; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 414, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 615. See Kerr's Cyc. C. C. for 2 pars, annotation. 70 C. 169, 172, 59 A. R. 404, 11 P. 686, 688 (construed and applied); 85 C. 329, 330, 20 A. S. 228, 24 P. 610, 9 L. 431 (cited). See note 11 L. 760. BAGGAGE OR LUGGAGE, As to baggage, what constitutes liability of carrier therefor, etc., see Kerr's Cyc. C. C. §§ 2182, 2183 and notes. As to duties and obligations of carriers of persons in general, see Kerr's Cyc. C. C. § 2100 and note. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. 1140 Tit.VII,ch.V,art.II.] BAGGAGE. § 2180 As to what is and liability for. — See 71 A. D. 159; 8 A. R. 302; 99 A. S. 343. Articles used for or by child riding free with parent, right of father to recover from carrier for loss of as baggage. — See 7 A. C. 61. Baggageman, act of in receiving articles as baggage, how far bound on carrier. — See 10 L. N. S. 1119. Bedding is not.— See 84 A. D. 646; 8 A. R. 300; 1 W. & P. 665. Bicycles as. — See 47 L. 306; 1 W. & P. 665. Books are when.— See 14 A. R. 716; 115 Eng. C. L. 321; 20 L. ed. 423; 1 W. & P. 665. Contributory negligence — Effect of to defeat action for loss or injury to. — See 11 L. 762. Definition — Of baggage. — See 51 A. D. 44; 51 A. D. 682; 56 A. D. 460; 71 A. D. 156; 8 A. R. 300; 55 A. R. 252; 59 A. R. 404; 23 A. S. 126; 58 A. S. Ill; 67 A. S. 933; 3 L. 342; 11 L. 759; 12 L. 318; 36 L. 781; 41 L. 333; 60 L. 486; 20 L. ed. 423; 25 L. ed. 531; 1 W. & P. 663. Same — Of luggage. — See 5 W. & P. 4257. Same — Of personal luggage. — See 23 A. S. 126: 12 L. 318; 25 L. ed. 531; 6 "W. & P. 5345. Delay in delivering, right to recover expenses or damages incident to. — See 7 L. N. S. 188. Drummer's samples carried as, liability of carrier for.— See 6 A. C. 826, 828; 4 L. N. S. 1033. Duty of sleeping-car company as to baggage or personal effects of passengers. — See 9 L. N. S. 407; also note § 2100, ante. Duty to carry. — See 9 A. C. 199. Guns, etc., are when. — See 1 W. & P. 666. Hand baggage — Limitation of liability for loss of baggage applicable to. — See 5 L. N. S. 650. House or furniture is not.^See 55 A. R. 252; 1 W. & P. 666. How far carrier bound by act of baggageman in receiving articles as baggage. — See 10 L. N. S. 1119. Husband's right of action for mental suffering from loss of by intended bride causing postponement of wedding. — See 3 L. N. S. 225. Implied exception in statute as to free transportation of. — See 25 L. 569. Infant traveling with parent without paying fare, loss of personal effects of, right of parent to recover for as. — See 1 L. N. S. 353. Inn-keeper's liability for, of guests. — See 2 A. C. 12, 16; 2 A. C. 345, 346; 2 A. C. 488, 491. Jewelry, etc., is when. — See 45 A. D. 654; 5 A. R. 221; 24 A. R. 268; 57 A. R. 227; 20 L. ed. 423; 1 W. & P. 666. Liability — For, after reaching destination of passenger. — See 36 L. 781-788, 1141 § 2180 CIVIL, CODE. [Div.III,Pt.IV. Same — For injury or loss of^ — As to generally. — See 7 A. C. 57; 9 A. C. 199; 3 L. 342; 11 L. 759. Same — For money stolen by employee. — See 11 L. 762. Same — For, not accompanied by passenger. — See 55 L. 650. Liability — For, termination of. — See 3 L. N. S. 183. Same — Of carrier for.— See 10 A. C. 893. Liability — Of carrier for loss of drummer's baggage. — See 4 L. N. S. 1035. Sanp,e — Of passenger carrier transporting mercliandise en- trusted to it by passenger.- — See 14 L. 515. Same — Of sleeping-car company for loss of passenger's prop- erty left by him in berth while temporarily absent therefrom. — See 10 A. C. 895. Limiting liability for — As to, generally, see 5 L. N. S. 650; 8 L. N. S. 199. Same — Application to hand baggage of limitation of liability for loss of baggage. — See 5 L. N. S. 650. Same — By provision in ticket- — As to generally. — See 9 A. C. 909. Same — Stipulation exempting carrier from liability for pas- senger's baggage, or limiting amount thereof, does it cover losses due to negligence. — See 8 L. N. S. 199. Same — Validity and effect of stipulation in ocean steamship ticket limiting liability for' passenger's baggage. — See 9 A. C. 913. Loss of, right to recover expenses and damage incident to. — See 7 L. N. S. 188. Merchandise as. — See 24 Am. L. Reg. 175, 178, 28 A. D. 653; 41 A. D. 767; 93 A. D. 140; 43 A. R. 199; 55 A. R. 252; 37 L. ed. 587; 1 W. & P. 667. Same — Liability of passenger carrier transporting entrusted to it by passenger. — See 14 L. 515. Same — Responsibility for loss when carried as. — See 11 L. 761. Money as. — See 24 A. D. 129; 32 A. D. 455; 51 A. D. 44; 71 A. D. 156; 83 A. D. 143; 5 A. R. 655; 59 A. R. 404; 20 L. ed. 423; 1 W. & P. 667. Negligence — Does stipulation exempting carrier from liability for passenger's baggage, or limiting amount thereof, cover losses due to. — See 8 L. N. S. 199. Notice to passenger of non-liability. — See 11 L. 762. Punitive damages for wanton failure to transport. — See 9 L. N. S. 1218. Recovery by parent for loss of personal effects of infant that pays no fare. — See 1 L. N. S. 353. Responsibility for loss of merchandise carried as baggage. — See 11 L. 761. Right of father to recover from carrier for loss as baggage of articles used for or by his child. — See 7 A. C. 61. 1142 Tit.VII,ch.V,art.II.] LUGGAGE, DEFINED. § 2181 Riglit to recover expenses or damage incident to loss of, or delay in delivery. — See 7 L. N. S. 188. Stipulation exempting carrier from liability for passenger's baggage, or limiting amount thereof, does it cover loss due to negligence. — See 8 L. N. S. 199. Sleeping-car company, duty of as to baggage or personal effects of passengers. — See 9 L. N. S. 407; also note § 2100, ante. Street-car company as carriers of. — See 9 A. C. 201. Termination of liability for. — See 3 L. N. S. 183. Theatrical property as. — See 23 A. S. 126; 12 L. 318; 1 W. & P. 669. Tools of trade as. — See 1 W. & P. 669. Validity and effect of stipulation in -ocean steamer tickets limiting liability for passenger's baggage. — See 9 A. C. 913. Wanton failure to transport, punitive damages for. — See 9 L. N. S. 1218. Watch and chain as. — See 8 A. R. 471; 9 A. R. 456; 57 A. R. . 227; 20 L. ed. 423; 1 W. & P. 669. Wearing apparel. — See 1 A. R. 527; 5 A. R. 655; 1 W. & P. 669. What constitutes — As to generally, see 6 A. C. 826, 828; 7 A. C. 57, 61. § 2181. LUGGAGE DEFINED. [BICYCLE.] Luggage may consist of whatever the passenger takes with him for his personal use and convenience, according to tlie habits or wants of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose of the journey. No crate, cover, or other protection shall be required for any bicycle carried as luggage, but no passenger shall be entitled to carry as luggage more than one bicycle. History: Enacted March 21, 1872; amended February 9, 1897, Stats, and Amdts. 1897, p. 4. See Kerr's Cyc. C. C. for 4 pars, annotation. 70 C. 169, 173, 59 A. R. 404, 11 P. 686, 688 (construed and applied); 85 C. 329, 330, 20 A. S. 228, 24 P. 610, 9 L-. 431 (construed and applied). See note 11 L. 760. As to baggage on railroad lines, see Kerr's Cyc. C. C. § 479 note pars. 1-7. As to checks as prima facie evidence of delivery of baggage, see Kerr's Cyc. C. C. § 479 note par. 12. As to checks required to be affixed to all baggage and lug- gage, see Kerr's Cyc. C. C. § 479 and note. 1143 § 2182 CIVIL CODE. [Div.III.Pt.IV. f. As to bag-gag-e on lines of connecting carriers, see Kerr's '^ Cyc. C. C. § 479 par. 7. ^ "Baggage" and "luggage" signify same thing. — See 59 A. R. ^ 404. ! As to many miscellaneous matters as to carriers of passengers, ■; see note § 2100, ante. §21H2. LIABILITY FOR LUGGAGE. The liability of a carrier for luggage received by him with a passenger is the same as that of a common carrier of property. History.: Enacted March 21, 1872. 70 C. 169, 173, 59 A. R. 404, 11 P. 686, 688 (construed and applied). As to baggage retained for carrier's benefit, see 36 L. 784. As to burden of proof in case of loss of baggage, see 36 L. 788. As to carrier's lien upon baggage for fare, etc., see Kerr's Cyc. C. C. § 2191 and note. As to competency of testimony of owner of trunk as to con- tents, see 56 A. D. 470. As to duty of carrier when baggage remains uncalled for, See 36 L. 785. As to effect of agreement to care for baggage, see 36 L. 785. As to liability for baggage lost by acts of God, see 11 L. 615. As to liability of baggage transfer companies for baggage, see Kerr's Cyc. C. C. § 2168 and note. As to liability of carrier as warehouseman for baggage, see 36 L. 786. As to liability of common carrier for baggage after reaching destination, see 36 L. 781. As to liability of carrier for baggage in custody of servant. See 36 L. 788. As to liability of common carrier of property, see Kerr's Cyc. C. C. §§ 2114, 2194, 2204 and notes. As to liability of passenger carrier for baggage, see 56 A. D. 470; 55 A. D. 481. As to loss of baggage of passenger on boat, see Kerr's Cyc. C. C. § 2197 and note. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to negligence of passengers in respect to baggage, see 36 L. 788. As to sleeping-car company's liability for baggage, see 21 L. 295. As to when liability of carrier for baggage terminates, see 36 L. 782-784. 1144 Tit.VII,ch.V,art.II.] VEHICLES. PROVIDING. §§2183-2185 8 2183. LUGGAGE, HOW CARRIED A?iD DELIVERED. A common carrier must deliver every passenger's luggage whether within the prescribed weight or not, immediately upon the arrival of the passenger at his destination; and unless the vehicle would be overcrowded or overloaded thereby, must carry it on the same vehicle by which he car- rl th passenger to whom it belonged, except that where uggage is transported by rail, it must be checked and carried in a regular baggage car; and whenever passengers neglect or refuse to have their luggage so checked and transported, it is carried at their risk. History: Enacted March 21. 1872; amended March 30, 1874 Code Amdts. 1873-4, p. 250. 70 C 169, 173. 59 A. R. 404, 11 P. 686, 688 (construed and ^^^:^ ZZ mlSlS^ matters as to carriers of passengers. -i:t llT.^t%.^.e, HahiHty of carrier therefor, and the like! see Kerr's Cyc. C. C. §i 2181. 2182 and notes. S2184. 0BLIGATI0> TO PROVIDE VEHICLES. A com- mon carrier of persons must provide a sufficient number of vehicles to accommodate all the passengers who can be lea- sonably expected to require carriage at any one time. History: Enacted March 21. 1872. AS to many miscellaneous matters as to carriers of passengers. ''i:t LZleZn; that carriers of P-sons furnish safe and adequate aPPHances, see Kerr's Cyc. ^JJ^ll^^^^l^^Z, ^^s- As to requirement that raiiroaa cuipuio-v ^ r> s iSl sengers sufficient accommodations, sec Kerr's Cyc. C. C. § 483 ""IsTo'rights of passengers on overcrowded cars, see Kerr's Cyc. C. C. § 2100 and note. s 'MBS SEATS FOR PASSENGERS. A common carrier of pers^ons'must provide every passenger with a seat. He niust not overload his vehicle by receiving and carrying more pas- sengers than its rated capacity allows. Historr: Enacted March 21. 1872. 1145 §§ 2186, 2187 CIVIL CODE. [Div.III,Pt.IV. As to duty to accept and carry persons and freight offered, see Kerr's Cyc. C. C. § 2169 and note. As to duty to furnish room inside passenger cars, see Kerr's Cyc. C. C. § 483 and note. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. § 21^. REGULATIONS FOR CONDUCT OF BUSINESS. A common carrier of persons may make rules for the conduct of his business, and may require passengers to conform to them, if they are lawful, public, uniform in their application, and reasonable. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 78 C. 360, 364, 20 P. 740 (language of section quoted and con- strued but section not cited); 97 C. 461, 464, 32 P. 530 (con- strued and applied); 141 C. 728, 732, 99 A. S. 98, 75 P. 310. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to passenger's exhibiting and surrendering ticket when requested, see 5 L. 818. As to power of conductor to waive rule, see 16 L. 631. As to reasonable rules for carriage of passengers, see 7 L. 111. As to rules and regulations railroad coinpanies may make, see 5 L. 817. As to tender of reasonable fare, see Kerr's Cyc. C. C. §§ 2187, 2188 and notes. § 2187. FARE, WHEN PAYABLE. A common carrier may demand the fare of passengers, either at starting or at any subsequent time. Hi.story: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 6 pars, annotation. 81 C. 296, 298, 15 A. S. 61, 22 P. 859, 6 L. 336 (construed and applied); 97 C. 461, 464, 32 P. 530 (cited and applied). As to character of ticket as receipt for passage, see ante § 2186 and note, and also 5 L. 818. As to law requiring conductors to wear badge indicating authority, see Kerr's Cyc. C. C. S 488 and note. As to lost tickets, see 5 L. 819. 1146 Tit.VII,ch.V,art.II.] EJECTION. §§ 2188, 2189 As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to offense of stealing- passenger ticket, etc., see Kerr's Cyc. Pen. C. §§ 493, 494 and notes. As to penalty ^r ov-ercharging, see Kerr's* Pocket Pen. C. §525. §2188. EJECTION OF PASSENGERS. A passenger who refuses to pay his fare or to conform to an}^ lawful regulation of the carrier, may be ejected from the vehicle by the carrier. But this must be done with as little violence as possible, and at any usual stopping place or near some dwelling-house. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 43 pars, annotation. 81 C. 296, 298, 299, 15 A. S. 61, 22 P. 859, 860, 6 L. 336 (con- strued and applied); 97 C. 461, 463, 32 P. 530 (construed and applied); 141 C. 728, 732, 99 A. S. 98, 75 P. 310 (construed and applied); 145 C. 441, 452, 79 P. 420 (construed and applied). As to duties and liability of carriers for wrongful expulsion, see Kerr's Cyc. C. C. § 2100 and note. As to ejection of custodian for non-payment of children's fare, see 38 L. 140, 141. As to expulsion for refusal to pay fare, see 5 L. 820. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to regulations of street railroads, see Kerr's Cyc. C. C. § 503 and note. As to right of carrier to eject passenger and his baggage where fare is refused, or ticket is not exhibited or surrendered, see Kerr's Cyc. C. C. § 487 and note. § 2189. PASSENGER ^VHO HAS NOT PAID FARE. A pas- senger upon a railroad train who has not paid his fare before entering the train, if he has been afforded an opportunity to do so, must, upon demand, pay ten per cent in addition to the regular rate. History: Enacted March 21, 1872. As to ejecting passenger for non-payment of fare, etc., see Kerr's Cyc. C. C. §481 note pars. 11-16, 25-28; §488 note pars. 3-16. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. 1147 §§2190,2191 CIVIL CODE. [Div.III.Pt.IV. §2190. FARE NOT PAYABLE AFTER EJECTION. After having ejected a passenger, a carrier has no right to require the payment of any part of his fare. History: Enacted March 21, 1872. As to ejecting passenger in general for nonpayment of fare, and the like, see Kerr's Cyc. C. C. § 2188. As tv> many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to passenger's right to re-enter train after ejectment, see Kerr's Cyc. C. C. § 487 note par. 18. As to passenger's right to retain ticket after being ejected from train, see Kerr's Cyc. C. C. § 487 note par. 25. §2191. CARRIER'S LIEN. A common carrier has a lien upon the luggage of a passenger for the payment of such fare as he is entitled to from him. This lien is regulated by the title on liens. History: Enacted March 21, 1872. As to liens in general on luggage of passenger carried with or for him, see Kerr's Cyc. C. C. §§ 2872-2913 and notes. As to lien on merchandise, etc., for freight, see Kerr's Cyc. C. C. § 2144 and note. As to many miscellaneous matters as to carriers of passengers, see note § 2100, ante. As to special lien on articles of personal property for car- riage, etc., see Kerr's Cyc. C. C. § 3051 and note. i 1148 Tit.VII,ch.V,art.III.] INLAND CARRIERS. § 2194 ARTICLE III. COMMON CARRIERS OF PROPERTY. § 2194. Liability of inland carriei-s for loss. § 2195. "When exemptions do not apply. § 2196. Liability for delay. § 2197. Liability of marine carriers. § 2198. Same. [Acts of Congress.] § 2199. Perils of sea, what. § 2200. Consignor of valuables to declare their nature. § 2201. Delivery of freight beyond usual route. § 2202. Proof to be given in case of loss. § 2203. Carrier's services, other than carriage and delivery. § 2204. Non-delivery— Sale, when. §2194. LIABILITY OF INLAND CARRIERS FOR LOSS. Unless the consignor accompanies the freight and retains exclusive control thereof, an inland common carrier of prop- erty is liable, from the time that he accepts until he relieves himself from liability pursuant to sections twenty-one hundred and eighteen to twenty-one hundred and twenty-two, for the loss or injury thereof from any cause whatever, except: 1. An inherent defect, vice, or weakness, or a spontaneous action, of the property itself: 2. The act of a public enemy of the United States, or of this state ; 3. The act of the law; or, 4. Any irresistible superhuman cause. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 101 C. 187, 194 (construed and applied), 35 P. 630. As to "act of God," what constitutes, see Kerr's Cyc. C. C. § 1511 note pars. 2-15; also note 11 L. 615. As to act of God as excuse for delay, see Kerr's Cyc. C. C. § 1511 note pars. 2-15; 11 A. S. 362, 364. As to burden of proof that loss is within exemption, see 88 A. S. 121, 125. As to carriage of live stock, and contracts limiting liability for loss or injury, see Kerr's Cyc. C. C. §§ 2170, 2174 and notes. As to defenses in actions for loss by carrier, see 11 L. 615, 616. As to inevitable accident, see 11 L. 616. 1149 § 2195 CIVIL CODE. [Div.III,Pt.IV. As to liability for acts resulting from negligence, acts of God, etc., see 36 A. S. 838, 840. As to liability for every loss not occasioned by act of God, or public enemies, see 27 A. D. 517. As to liability for loss caused by acts of God, see Kerr's Cyc. C. C. §1511 note pars. 2-15; 11 A. S. 362, 364. As to liability for loss or deterioration caused by delay, see Kerr's Cyc. C. C. § 2196 and note; also 11 A. S. 360, 361; 88 A. S. 104. As to liability of carrier at common law, see 7 Am. R. & Corp. Rep. 281, 282. As to liability of common carriers for losses not within exceptions to contract or arising from acts of God, public enemies, inherent defects, etc., in general, see 42 A. D. 497; 75 A. D. 497, 498; 57 A. D. 701. As to liabilitj'^ of express companies as carriers, see 61 A. S. 379, 382-385. As to limitation of carrier's liability by special contract, see Kerr's Cyc. C. C. § 2174 and note. As to limitation of liability by notice, see Kerr's Cyc. C. C. § 2174 and note. As to loss of consignment, liability for, see 61 A. S. 380. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to regulations and rules governing railroads as common carriers, see Kerr's Cyc. C. C. § 461 subd. 11, § 484 and notes. As to right of common carrier to limit liability, as insurer of property intrusted to him, see 32 A. D. 497-500. As to riots, mobs, etc., as excuse for loss, or delay in deliver5\ see 11 A. S. 365. As to stoppage of freight in transitu, see Kerr's Cyc. C. C. §§ 2118, 3076-3080 and notes. As to strikes as excuse for delay, see Kerr's Cyc. C. C. § 2196 and note. As to when injury is result of negligence and not of inevitable accident, see Kerr's Cyc. C. C. § 2100 and note. Irresistible superhuman cause, loss due to, see Kerr's Cyc. C. C. § 2194 note par. 2; 86 A. D. 297; 97 A. D. 409. § 2195. WHEN EXEMPTIOIVS DO NOT APPLY. A common carrier is liable, even in the cases excepted by the last sec- tion, if his want of ordinary care exposes the property to the cause of the loss. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 414, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 615. 1150 ! Tit.VII,ch.V,ai-t.III.] MARINE CARRIER. §§ 2196-2198 §2196. LIABILITY FOR DELAY. A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence. • History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 251. See Kerr's Cyc. C. C. for 8 pars, annotation. 101 C. 187, 193, 35 P. 630 (applied). As to delays caused by strikes, see Kerr's Cyc. C. C. § 2194 and note. As to delivery of goods to connecting carrier, or shipment beyond usual route, see Kerr's Cyc. C. C. § 2201 and note. As to duty of carrier in choice of routes, see Kerr's Cyc. C. C. § 2100 and note. As to liability for delay caused by strikes, riots, etc., see Kerr's Cyc. C. C. § 2194 and note. As to liability of common carriers for delay, see 88 A. S. 104. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. § 2197. LIABILITY OF MARIAE CARRIER. A marine car- rier is liable in like manner as an inland carrier, except for loss or injury caused by the perils of the sea or fire. History: Enacted March 21, 1872. As to cliarter party, see Kerr's Cyc. C. C. § 1959 and note. As to implied liability of marine carrier, see Kerr's Cyc. C. C. § 2197, note. As to liability of inland carriers in general, see Kerr's Cyc. C. C. §§2096, 2100, 2168, 2194 and notes. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to perils of the sea, see Kerr's Cyc. C. C. §§ 2194, 2199 and notes. § 219S. SAME. [ACTS OF CONGRESS.] The liability of a common carrier by sea is further regulated by acts of Con- gress. lli.slory: Enacted March 21, 1872. As to acts of Cunsress regulating liability of marine I'urriiM-s, see Kerr's Cyc. C. C. §§ 1511, 2088 and notes. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to "The Harter Act," providing for exemptions for liability 1151 §§ 2199, 2200 CIVIL CODE. [Div.III,Pt.IV. for damages on account of marine loss, dangers of sea, acts of God, etc., see act of February 13, 1893, § 3, 27 Stats, at L. 445. See 4 F. S. A. 857 and note. As to the restriction of liability by a statute under act of Con- gress relating to the limitation of liability of marine carriers, see 10 L. 420. §2199. PERILS OF SEA, WHAT. Perils of the sea are from: 1. Storms and waves; 2. Rocks, shoals, and rapids; 3. Other obstacles, though of human origin; 4. Changes of climate; 5. The confinement necessary at sea; 6. Animals peculiar to the sea; and, 7. All other dangers peculiar to the sea. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 76 C. 145, 147, 148, 9 A. S. 184, 18 P. 155, 156 (construed). As to acts of God, see Kerr's Cyc. C. C. § 1511 note pars. 2-15 and § 2194 and note. As to effect of particular stipulations in bills of lading quali- fying liability for injuries caused by "dangers of the sea," see 38 A. D. 424, 425. As to loss resulting from deviation from route, see Kerr's Cyc. C. C. § 2104 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to "perils of sea," see Kerr's Cyc. C. C. § 2199, note par. 4; also notes 41 A. D. 281; 9 A. S. 187; 30 A. S. 539. §2200. CONSIGNOR OF VALUABLES TO DECLARE THEIR NATURE. A common carrier of gold, silver, platina, or precious stones, or of imitations thereof, in a manufactured or unmanufactured state; of timepieces of any description; of negotiable paper of other valuable writings; of pictures, glass, or chinaware; of statuary, silk, or laces; or of plated ware of any kind, is not liable for more than fifty dollars upon the loss or injury of any one package of such articles, unless he has notice, upon his receipt thereof, by mark upon the package or otherwise, of the nature of the freight; nor is 1152 II Tit.VII,ch.V,art.III.] DELIVERY, ROUTE. §§2201,2202 such carrier liable upon any package carried for more than the value of the articles named in the receipt or the bill of lading. Hi-story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4. p. 251. See Kerr's Cyc. C. C. for 5 pars, annotation. 84 C. 311, 313, 24 P. 284, 285 (construed and applied); 118 C. 683, 689, 50 P. 847 (referred to in construction of § 2176. As to liability for loss of letters, etc., see Kerr's Cyc. C. C. § 2177 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to stipulations of value as limiting liability, see Kerr's Cyc. C. C. § 2176 and note pars. 12-19. §2201. DELIVERY OF FREIGHT BEYOXD USUAL ROUTE. If a common carrier accepts freight for a place beyond his usual route, he must, unless he stipulates other- wise, deliver it at the end of his route in that direction to some other competent carrier carrying to the place of address, or connected with those who thus carry, and his liability ceases upon making such delivery. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 57 C. 462, 463 (construed and applied); 46 P. 668, 669 (con- strued and applied), but see decision reversing department decision, 101 C. 187, 195 (construed and applied), 35 P. 630; 118 C. 648, 651, 653, cited on page 653 erroneously as § 2101 (con- strued and applied), correctly cited in 50 P. 775, 40 L. 78; 3 C. A. 106, 108, 84 P. 438 (applied — delivery to connecting carrier). As to limitation of initial carrier's liability to its own lines, see 7*Am. R. & Corp. Rep. 320-323. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to negligence of common carriers in general, see Kerr's Cyc. C. C. § 2114 and note. §2202. PR(M)F TO BE GIVEX IN CASE OF LOSS. If freight addressed to a place beyond the usual route of the com- mon carrier who first received it is lost or injured, he must within a reasonable time after demand, give satisfactory proof Kerr's C. C— 37 1153 §§ 2203, 2204 CIVIL CODE. [Div.III.Pt.IV. to the consignor that the loss or injury did not occur while it was in his charge, or he will be himself liable therefor. History: Enacted March 21, 1872. As to connecting carriers, see Kerr's Cyc. C. C. § 2201 and note. As to liability of carriers for loss of freight, see Kerr's Cyc, C. C. §?-2114, 2194 and notes. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. § 2203. CARRIER'S SERVICES, OTHER THAN CARRIAGE AND DELIVERY. In respect to any service rendered by a common carrier about freight, other than its carriage and delivery, his rights and obligations are defined by the titles on deposit and service. History: Enacted March 21, 1872. As to liability as warehousemen, see Kerr's Cyc. C. C. §§ 2120, 2121 and notes. As to nature and creation of deposit, see Kerr's Cyc. C. C. § 1813 et seq. and notes. As to many iniscellaneous matters as to carriers of property, see note § 2114, ante. As to obligations of depositary, see Kerr's Cyc. C. C. §§ 1822 et seq. and notes. As to servants, see Kerr's Cyc. C. C. §§ 1965, 1969 et seq., §§ 1975 et seq. and notes. §2204. NON-DELIVERY— SALE, WHEN. If, from any cause other than want of ordinary care and diligence on his part, a common carrier is unable to deliver perishable prop- erty transported by him, and collect his charges thereon, he may cause the property to be sold in open market to satisfy his lien for freightage. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 251. As to carrier's lien for freightage, see Kerr's Cyc. C. C. § 2144 and note. As to penalty for making overcharges, see Kerr's Cyc. Pen. C. § 525 and note. As to many miscellaneous matters as to carriers of property, see note § 2114, ante. As to sale of freight to satisfy lien for freightage in general, see 83 A. D. 632. 1154 Tit.VII.ch.V.art.IV.] telegrams. §§ 2207, 2208 ARTICLE IV. COMMON CARRIERS OF MESSAGES. § 2207. Order of transmission of telegraphic messages. § 2208. Order in other cases. § 2209. Damages when message is refused or postponed. §2207. ORDER OF TRANSMISSION OF TELEGRAPHIC MESSAGES. A carrier of messages by telegraph must, if it is practicable, transmit every such message immediately upon its receipt. But if this is not practicable, and several mes- sages accumulate upon his hands, he must transmit them in the following order: 1. Messages from public agents of the United States or of this state, on public business; 2. Messages intended in good faith for immediate publica- tion in newspapers, and not for any secret use; 3. Messages giving information relating to the sickness or death of any person; 4. Other messages in the order in which they were received. History: Enacted March 21, 1872: amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 414, held unconstitutional, see history, § 4 ante. As to penalty for neglect or refusal to send messages or unlawful postponement thereof, see Kerr's Cyc. Pen. C. § 638 and note. As to various offenses for refusing or neglecting to send telegraphic messages, postponement, etc., see Kerr's Cyc. Pen. C. §§ 638, 639, 640, 641 and notes. §2208. ORDER IN OTHER CASES. A common carrier of messages, otherwise than by telegraph, must transmit mes- sages in the order in which he receives them, except mes- sages from agents of the United States or of this state, on public business, to which he must always give priority. But he may fix upon certain times for the simultaneous transmis- sion of messages previously received. 1155 § 2209 CIVIL CODE. [Div.III.Pt.IV. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 414, held unconstitutional, see history, § 4 ante. As to liability of carrier of messages, see Kerr's Cyc. Pen. C. §§ 2161, 2162 and notes. § 220ft. DAMAGES WHEN aiESSAOE IS REFUSED OR POSTPONED. Every person whose message is refused or postponed, contrary to the provisions of this chapter, is enti- tled to recover from the carrier his actual damages, and fifty dollars in addition thereto. History: Enacted March 21, 1872. 73 F. 273, 275 (plaintiff is entitled to nominal damages when, and to penalty — -"this new provision," said the code commis- sioners, "is needed to protect the rights of parties who are seriously annoyed by delays which, nevertheless, cannot be shown to have caused them pecuniary damage"). As to liability of carriers of messages, damages for delay, refusal or failure to deliver, etc., see Kerr's Cyc. C. C. §§ 2161, 2162 and notes. IIDG Tit.VIII,ch.I,art.I.] TRUSTS, CLASSES. § 2215 TITLE VIII. TRUSTS. [For Commissioners' comment on this title, see Kerr's Cyc. C. C. uote to title, also to § 2220.] Chapter I. Trusts in General, §§ 221.5-2244. II. Trusts for the Benefit of Third Persons, §§ 2250- 2289. CHAPTER I. TRUSTS IN GENERAL. Article I. Nature and Creation of a Trust, §§ 2215-2224. II. Obligations of Trustees, §§2228-2239. III. Obligations of Third Persons, §§ 2243, 2244. ARTICLE I. NATURE AND CREATION OP A TRUST. § 2215. Tiusts classified. § 2216. Voluntary trust, what. § 2217. Involuntary trust, what. § 221S. Parties to the contract. § 2219. What constitutes one a trustee. § 2220. For what purpose a trust may be created. § 2221. Voluntary trust, how created as to truster. § 2222. How created as to trustee. § 2223. Involuntary trustee, who is. § 2224. Involuntary trust resulting from negligence, etc. §2215. TRUSTS CLASSIFIED. A trust is either: 1. Voluntary; or, 2. Involuntary. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 58 C. 437, 483 (construed and applied with oHht s.ctions); 1157 § 2215 CIVIL CODE. [Div.III,Pt.IV. 132 C. 21 26, 63 P. 1071 (construed and applied with other sections); 138 C. 606, 609, 72 P. 46 (instance of express trust or confidence). TRUSTS AND TRUSTEES. As to consideration in express trust, see Kerr's Cyc. C. C. § 852 and note pars. 22-28. As to creation of precatory trusts, see Kerr's Cyc. C. C. § 852 and note pars. 170-244. As to creation of trusts in mining operations under govern- ment grants, see Kerr's Cyc. C. C. § 852 and note pars. 366-386. As to essential elements to create express trusts, see Kerr's Cyc. C. C. §852 and note pars. 14-99; 31 A. S. 637; 15 L. 470; 8 W. & P. 7121. As to evidence to prove express or voluntary trust, see Kerr's Cyc. C. C. § 852 and note pars. 137-169. As to evidence to prove trusts by operation of law, or involuntary trusts, see Kerr's Cyc. C. C. § 852 and note pars. 387-411. As to trusts by operation of law, see Kerr's Cyc. C. C. § 852 and note pars. 264-365; also § 1816 and note. Accounting of trustees. — See 8 A. C. 176. Admissions and waivers by fiduciaries in actions, as to, see 32 L. 671, 690. Agents, trustees, when may act by. — See 93 A. S. 615. Appointment of trustee. — See "Trustee — Appointment of," this note. Beneficiaries, when bound by acts of trustees in contraven- tion of their trusts. — See 63 A. S. 467. Beneficiary's knowledge of trust necessary. — See 10 L. N. S. 616. Burial, trusts for and for keeping burial lots, whether valid. —See 58 A. R. 596. Cestui que trusts — As to. — See 7 A. C. 178; 7 A. C;. 551; 8 A. C. 917. Same — Rights of as to trust property mingled with that of insolvent trustee. — See 7 A. C. 553. Charge distinguished. — See 8 W. & P. 7123. Charitable trusts. — See note § 847, ante. Classification of. — See 100 A. D. 586; 8 L. 647; 8 W. & P. 7121. Compensation of trustees. — See 17 A. D. 266. Constructive trust — As to generally, see 2 A. C. 554; 2 A. C. 774; 7 A. C. 287. Same — Arises when. — See 5 L. 189. Same — Arising from oral agreement to hold in trust or reconvey lands conveyed under influence of confidental relations. —See 2 A. C. 777. Same — Arising from renewal of lease. — See 7 A. C. 295. 1158 Tit.VIII.ch.I.art.L] TRUSTS, TRUSTEES. § 2215 Same— Definition of.— See 7 A. S. 189; 33 A. S. 209; 54 A. S. 31; 21 L. 33; 28 L. 707; 2 W. & P. 1476. Same — Direct and express trusts distinguished. — See 2 W. & P. 1477. Same — Intention to create trusts. — See 43 L. 622; 2 W. & P. 1478; see "Intention," tliis note. Same — Liability of heir or distributee as trustee ex maleficio for failure to perform oral promise which prevented making- of will. — See 2 A. C. 556. Same — Wrongful acquisition of property. — See 48 A. S. 826; 2 W. & P. 1478. Constructive or resu"lting trust — As to, generally, see 1 L. N. S. 312; 4 L. N. S. 435; 5 L. N. S. 395; 5 D. N. S. 1172, 1179, 1193; 6 L. N. S. 381; 7 L. N. S. 1094; 8 L. N. S. 628; 12 L. N. S. 493. Conveyance by trustee and its effect. — See 64 A. D. 199. Corporation — Duty of as to transfer of stock held in trust. —See 15 L. 643. Same — Power to act as trustee. — See 11 L. 715. Same — Same — Foreign corporation. — See 24 L. 291. Same — Same — Of charitable trust. — See 8 A. C. 1151. Cotrustees, liability of one for the acts and defaults of another.— See 42 A. D. 288. Court — Power of to increase or diminisli number of trustees appointed by creator of trust. — See 6 A. C. 598. Same — Power to dissolve trust. — See 18 L. 745. Creation of trusts — As to generally, see 6 A. C. 188; 1 L. 327; 11 L. 456; 12 L. 667. Same — By writings payable to or in favor of "trustee.'" — See 82 A. S. 513. Same — Effect upon trust of death of donor without exercis- ing power of revocation. — See 6 A. C. 189. Same — Necessity of consideration for. — See 11 L. 457. Same — Parol trusts, as to generally, see 7 A. C. 1078. Same — Powers of revocation. — See 6 A. C. 188. Same — The trust estate. — See 10 A. C. 511. Same — Same — Whether life tenant or remainderman must bear loss due to depreciation of security caused by wearing away of purchase premium. — See 10 A. C. 515. Death of trustee, to whom property passes on. — See 1 L. 334. Debt distinguished. — See 2 W. & P. 1885. Declaration of trust — As to, generally, see 6 A. C. 188; 1 L. 327; 11 L. 456: 12 I.. 667. Deposit — As a direct trust. — See 8 L. 648. Same — In insolvent bank, trust arising from. — See 34 L. 532. Same — Of money for third person. — 'See 32 L. 373. Same — Priority in assets of insolvent national bank by reason of trust character of deposit. — See 25 L.. 546. Deposits in savings banks, when create trusts. — See 31 A. R. 453. 1159 § 2215 CIVIL CODE. [Div.III,Pt.IV. Direct or active trust — Wliat constitutes. — See 11 L. N. S. 331. Direct trust, deposit as a. — See 8 L. 648. Discretion of trustee, control of by courts of equity. — See 6 A. S. 885. Dissolution and termination of trusts, and decrees declaring. —See 100 A. S. 101. Donee of power to appoint, who may be appointed trustee by. —See 4 A. C. 405. Duties and liabilities of trustee.^ — See "Trustees — Duties of," and some "Powers, duties and liabilities of," this note. Enforcing trusts — Effect of executor's promise as to payment of legacy upon trust relation with legatee. — See 9 L. N. S. 214. Same — Laches as a bar to enforcement of trust as against one who knowingly purchased trust property in violation of the terms of an express trust. — See 7 L. N. S. 370. Same — Removal, because of separable controversy of actions relating to trusts. — See 5 L. N. S. 87. Same — Right of one whose interest is merely contingent, to maintain suit to establish or enforce a trust. — See 7 L. N. S. 999. Equitable enforcement of trust in case of land, as affected by statute of frauds. — See 5 L. N. S. 112. Establishment and enforcement of voluntary trusts in equity. — See 34 A. S. 194. Evidence contradicting recital of payment in the considera- tion clause of deeds, whether admissible to prove trusts in favor of grantors.— See 90 A. D. 270. Ex maleficio trustees — As affected by statute of frauds. — See 11 L. 381. Same — Devisees, heirs and legatees, when hold as. — See 106 A. S. 94. Same- — Embracing devise or bequest within trust to prevent fraud on testatory. — See 2 L. 662. Same — Gift by consent as affected by promise to testator or by secret trust. — See 20 L. 465. Same — Law of as affecting right to revoke license. — See 49 L. 497. Same — Rights of heir or distributee as. — See 2 A. C. 556. Same — When trust arises. — See 11 L. 381. Express trust — Effect of lapse of time to extinguish.— See 1 L. 328. Fiduciary relation of trustee and beneficiary. — See 16 A. D. 616. Following trust — Effect of legal remedy to defeat equit- able jurisdiction. — See 6 L. N. S. 793. Foreign coi'poration- — ^Power to act as trustee. — See 24 L. 291. Foreign surety company, power to act as trustee. — See 48 L. 593. 1160 Tit.VIII,ch.I,art.I.] trusts, trustees. § 2215 "Heirs," necessitj' of word in deed or devise in trust, to pass fee to trustee.— See 2 L. N. S. 172-183. Implied trust.— See "Constructive trusts," "Resulting trusts," this note. Same — Arising from renewal of lease. — See 7 A. C. 295. Same — As arising between legal and equitable title. — See 8 L. 647; 4 W. & P. 3437. Same — As express trust by statute. — See 4 W. & P. 3436. Same — Definition of. — See 8 L. 647; 4 W. & P. 3436. Same Express trusts distinguished. — See 4 W. & P. 3436. Same — To effectuate purpose of contract when its terms can- not be given effect. — See 58 L. 115. Insurable interest of husband, as trustee, in wife's property. — See 66 L. 659. Intent, express or implied, to create necessary to. — See 15 A. S. 531; 6 L. 403; 8 W. & P. 7122. Investments which trustees may make without becoming liable for loss. — See 40 A. D. 506. Judgments against trustees, conclusiveness of upon bene- ficiaries. — See 34 A. D. 722; 73 A. S. 164. Laches as a bar to enforcement of a trust as against one who knowingly purchased trust property in violation of the terms of an express trust. — See 7 L. N. S. 370. Lapse of time, effect of to extinguish express trust. — See 1 L. 328. Lease of trust property, power of trustee to make. — See 2 A. C. 787. Legal estate, when vests in beneficiaries under the statute of uses.^See 78 A. D. 406. Liens against trust estates in favor of creditors or trustees. — See 19 A. S. 67. Life tenant or remainderman, which must bear loss due to depreciation of securities caused by wearing away of purchase premiums. — See 10 A. C. 515. Majority of trustees, when ma5^ act. — See 11 A. D. 674. Married woman, power of to act as trustee of express trust. — See 7 A. C. 1082. Mistake, fraud, undue influenco. etc., as ground for relief from voluntary trust. — See 19 L. 767. Mortgage of trust property, power of trustees, as to. — See 1 A. C. 942; 9 A. C. 639, 643; 10 A. C. 249, 255. Negligence of servants, liability of trustee for. — See 63 L. 227. Parol, creation of trust in land by. — See 115 A. S. 774. Parol evidence — To establish resulting trust. — See 10 L. 401. Same — To establish trust in third person. — See 20 L. 109. Parol trust — As to generally, see 7 A. C. 1078. Same — How far within statute of frauds. — See 10 L. 401. 1161 § 2215 CIVIL CODE. [Div.III.Pt.IV. Particular words necessary to create trust. — See 1 A. R. 34; 8 W. & P. 7122. Perpetuities, trusts are within the rule against. — See 49 A. S. 128. Power distinguished. — See 12 L. ed. 130; 8 W. & P. 7123. Power of court to increase or diminish number of trustees appointed by creator of trust. — See 6 A. C. 598. Powers of trustee. — See "Trustees — Powers of," this note. Preca+ory trust — Creation of. — See 2 A. C. 591, 593; 44 A. D. 372; 106 A. S. 499. Same — Definition of. — See 6 W. & P. 5493. Same — Precatory words to create, effect of. — See 33 A. R. 286; 6 L. 353; 7 L. 394; 7 L. 519; 13 L. 563; 6 W. & P. 5493. Precatory words to create trust, effect of. — See "Precatory trusts" this note. Preference to trust deposit out of funds of insolvent bank. — - See 1 L. N. S. 252. Presumption as to trusts between family relatives. — See 2 L. 816. Principal of trust fund, power of trustees to expend. — See 8 A. C. 1176. Provisions directing the particular purposes to which property conveyed to or for benefit of a religious or charitable organiza- tion shall be devoted as creating a trust. — See 7 L. N. S. 1119; 11 L. N. S. 512, 520. Purchasers from trustees, as to duty of. — See 4 A. C. 371. Reclaiming funds of deposited in bank which has become insolvent. — See 86 A. S. 801. Removal of trustees, as to. — See 6 A. C. 596. Resulting trusts — Arising from purchase of lands by agent in his own name. — See 5 A. C. 255. Same — By part payment as consideration for realty taken in name of another. — See 2 A. C. 667. Same — Definition of and when created. — See 51 A. D. 751. Same — Establishment by parol evidence. — See 10 L. 401. Same — How created and what suflficient to constitute. — See 2 L. 146. Same — Lien or resulting trusts arising from payment of money for purpose of improving land. — See 9 A. C. 249. Same — Parol agreement, made with person interested in land, that promisor will buy the land at judicial sale and hold if for benefit of promisee, as implied trust enforceable in equity. — See 5 A. C. 173. Same — Rules as to, generally, see 2 A. C. 664; 5 A. C. 171; 5 A. C. 253; 5 A. C. 491; 6 A. C. 646; 9 A. C. 248; 1 L. N. S. 312; 4 L. N. S. 435; 5 L. N. S. 395; 5 L. N. S. 1172, 1179, 1193; 6 L. N. S. 381; 7 L. N. S. 1094; 8 L. N. S. 628; 12 L. N. S. 493. Revocation of deeds of, trustor's power of. — See 20 A. S. 858. 1162 TitVIII.ch.I.art.I.] trusts, trustees. § 2215 Revocation of trust — As to power of. — See 6 A. C. 188; 15 L. 75-80. Same — Effect upon trust of death of donor without exercising power of revocation. — See 6 A. C. 189. Same — Mistake, fraud, undue influence, etc., as ground for relief from a voluntary trust. — See 19 L. 767. Right to pursue and recover trust funds. — See 32 A. S. 125. Rights of creditors — To create trust to pay debts. — See 12 L. N. S. 369. Rule in Shelley's case, applicability of to executory trusts. — - See 2 L. 458. Sale of trust property — Duty of purchaser from. — See 4 A. C. 371. Same — Power of trustees to make. — See 3 A. C. 417; 3 A. C. 437; 9 A. C. 287. Sales — and conveyances by trustees. — See 10 A. S. 266. Same — Powers of, when vest in trustee by implication. — See 87 A. D. 209. Same — Under powers in trust deeds to secure money. — See 92 A. S. 573. Savings bank trusts. — See 1 A. C. 900, 901. Secret trusts — For charity. — See 24 L. 465. Same — For masses. — See 25 L. 361. Servants, torts or negligence of, liability of trustee for. — See 63 L. 227. Severability of trusts from perpetuities and forbidden trusts. —See 64 A. S. 634. Specifying use of real estate in devise to religious society, effect of as creating a trust. — See 7 L. N. S. 1119; 11 L. N. S. 512, 520. Spendthrift trusts — Conllict of laws as to validity of. — See 2 L. N. S. 4 43. Same^Sufficiency of instrument to create. — See 3 A. C. 1005, 1010. Same — Validity and effect of. — See 3 A. C. 586, 588; 2 L. 113; 11 L. 565; 13 L. 215. Spendthrifts — Definition of. — See 7 W. & P. 6609. Same — Property of, whether may be exempted from execution and creditors' suits. — See 9 A. S. 405; 24 A. S. 686. Statute of frauds — As affecting equitable enforcement of trust in land. — See 5 L. N. S. 112. Statute of limitations — Application of to termination of trust. — See 8 L. 480. Same — When begins to run in favor of trustees. — See 1 L,. 319. Suflficiency of declaration to establish voluntary trust where legal title is retained by the settlor. — See 12 L. N. S. 547. Suits for taxation of property held in trust. — See 2 A. C. 849, 850. 1163 § 2215 CIVIL CODE. [Div.III,Pt.IV. Taxation of trust property, place of. — See 20 L. 151. Termination of trust— And presumption of conveyance by the trustee to the beneficiary. — See 58 A. D. 472. Same — Application of statute of limitations to. — See 8 L. 480. Same — Effect of lapse of time to extinguish express trust.— See 1 L. 328. Same— Power of court to dissolve. — See 18 L. 745. Same — When statute of limitations begins to run in favor of trustee. — See 1 K 319. Testamentary trust for payment of debts, effect of creation of.— See 5 L. N. S. 355-370. Torts of servants, liability of trustee for. — See 63 L. 227. Trust — Fund, right to follow. — See 46 A. S. 608. Same — In partnership lands. — See 27 L. 468. Same — In proceeds of collection by insolvent bank. — See 32 I... 715. Same — In third person — Parol evidence to establish. — See 20 L. 109. Same — In vessel, admiral jurisdiction of. — See 66 L. 235. Same — Organization of by use of words "upon condition" in will or conveyance or real property. — ^See 9 L. N. S. 758. Same — Priority in assets of insolvent national bank by reason of trust character of deposit. — See 25 L. 546. Trust estate — As to generally, see 10 A. C. 511. Same — Creation of lien on. — See 7 L. 656. Same — Injunction against execution sale of. — See 30 L. 119. Same — Insurable interest of husband, as trustee in wife's property. — See 66 K 659. Same — Place of taxation of. — See 20 L. 151. Same — Provision against alienation of interest of cestui que trust. — See 2 L. 113. Same — Stock held in trust, duty of corporation as to transfer of.— See 15 L. 643. Same — To whom passes on trustee's death. — See 1 L. 334. Same — Tracing — Following trust moneys paid without notice of trust. — See 2 L. 482. Same — Same — Funds in hands of third persons, when sub- ject to obligations of trusts. — See 4 L. 746. Same — Same — General rule as to following trust funds. — See 7 L. 570. Same — Same — Lands purchased by trustee subject to trust. — See 2 L. 481. Same — Same — Liability for taking deposit of trust funds in payment of trustee's debt. — See 52 L. 790. Same — Same — Mingling of trust funds. — See 2 L. 480; 8 L. 788. Same — Same — Property converted by trustee continues sub- ject to trust. — See 2 L. 480. 1164 Tit.VIII,ch.I,art.I.] TRUSTS, trustees. § 2215 Same — Where trustee sales are to be made. — See 39 L. 96. Same — Whether life tenant or remainderman must bear loss due to depreciation of securities caused by wearing away of purchase premiums.- — See 10 A. C. 515. Trustee ex maleficio, right of heir or distributee as, for failure to perform oral promise which prevented making of will. — See 2 A. C. 556; also "Ex maleficio trustee," this note. Trustees — As to, generally, see 16 L. 719; 31 L. 642; 35 L. 678; 59 L. 385. Same — As to who may be. — See 7 A. C. 1078; 8 A. C. 1176. Same — Accounting of. — See 8 A. C. 1176. Same — Appointment of, generally, see 4 A. C. 404; 6 A. C. 596. Same — Care demanded of, to sell real estate. — See 3 L. N. S. 415. Same — Cestui que trust, rights of. — See 7 A. C. 551, 553; 7 A. C. 1078; 8 A. C. 917. Same— Dealings with trust of cestui que trusts — As to, generally, see 5 L. 166: 6 L. 369; 9 L. 792; 13 L. 491; 37 L. 613. Same — Same — Fiduciary relations as affecting reliance on fraudulent statement. — See 37 L. 613. Same — Same — Purchase of objects of trust, by trustee— Effect of.— See 13 L. 492. Same — Same — Same — Relative from svich purchase. — See 9 L. 792; 13 L. 493. Same — Same — Purchase by trustee inures to cestui que trust. — See 9 L. 793. Same — Same — ^Right to profit by trust estate. — See 9 L. 794. Same — Same — Right to purchase it on sale. — See 5 L. 166; 6 L. 369; 9 L. 792; 13 L. 491. Same — Duties of. — See 8 A. C. 1176. Same — Effect of acknowledgment of deed of triist by. — See 16 L. 719. Same — Equitable control of discretion vested in.— See 8 L. N. S. 398. Same — Ex maleficio. — See "Ex maleficio trustee," this note. Same — Exoneration of by thefts, robbery, casualty, failure of brokers and solicitors, defaults of agents, etc. — See 75 A. D. 799. Same — Injunctive relief affecting church trustees. — See 3 L. N. S. 860. Same — Power of — Corporation to act as of charitable trust. —See 8 A. C. 1181. Same — Same- — Court to change number of designated in trust instrument. — See 1 L. N. S. 802. Same — Same — Court to increase or diminish number of trustees appointed by creator of trust. — See 6 A. C. 598. Same — Same— Married woman to act as of express trust. — See 10 A. C. 782. 1165 § 2215 CIVIL CODE. [Div.III.PtlV. Same — Same — Of joint trustees. — See 4 A. C. 952; 6 A. C. 596. Same — Same — To convej' trust property without consent of co-trustees. — See 4 A. C. 953. Same — Same — To expend principal of trust fund.- — See 8 A. C. 1178. Same — Same — To lease trust property. — See 2 A. C. 787. Same — Same — To sell trust property. — See 3 A. C. 417; 3 A. C. 437; 9 A. C. 289. Same— -"^a me — To mortgage trust estate for purpose of making improvements so as to render it productive. — See 7 L. N. S. 263. Same — Same — To mortgage trust property. — See 1 A. C. 940, 942; 9 A. C. 639, 643; 10 A. C. 249, 255. Same — Powers, duties and liabilities of — Account of. — See 7 L. 570; 27 L. 821. Same — Same — Contingency of claim against sureties on bond of.— See 58 L. 86. Same- — Same — Discretion of. — See 13 L. 212. Same — Same- — Enforcement by. — See 9 L. 279. Sanie — Same — Joint liability of trustees. — See 4 L. 529. Same — Same — Joint receipt by trustees, effect of. — See 4 L. 529. Same — Same — Liability of, for compound interest. — See 29 L. 622. Same — Same— Same — For loss by bank failure. — See 14 L. 113. Same — Same — Liability of — Of partnership for fraud with respect to trust funds. — See 51 L. 486. Same — Same — Same — For torts or negligence of servants. — See 63 L. 227-234. Same — Same — Liability of infant as. — See 57 L. 688. Same — Same — Right to set-off in bankruptcy cases, claims held in trust. — See 55 L. 46. Same — Same — Stated account of. — See 27 L. 821. Same — Purchasers from. — See 4 A. C. 371. Same — Removal of. — See 6 A. C. 596. Same — Right to enjoin an unlawful sale of church property by. — See 2 L. N. S. 828. Same — Right to have property wrongfully pledged by a trustee for his individual benefit redeemed by money belonging to his insolvent estate. — See 6 L. N. S. 487. Same — Who are or may be — ^Corporation as. — See 11 L. 715. Same — Same — Executors and administrators as. — See 1 L. 79, 80; 8 L. 648. Same — Same — Foreign corporation as. — See 24 L. 291; 48 L. 593. Same — Same — Foreign surety company as. — See 48 L. 593. Same — Same — Municipal corporation as, of a charity. — See 14 L. 69; 16 L. 695. 1166 i i Tit.VIII,ch.I,art.I.] voluntary trust. §§ 22I6, 2217 Same — "Who may be appointed trustee of donee of power to appoint. — See 4 A. C. 405. Trustee's sale, where to be made. — See 33 L. 96. Unlawful, what combinations constitute. — See 74 A. S. 235. "Upon condition," creation of trust by use of words, in will or conveyance of real property. — See 9 L. N. S. 758. Use distinguished. — See 8 W. & P. 7123. Uses and trusts — As to, generally, see note § 847, ante. Same — Statutory regulation of. — See 4 L. 140. Validity of trust to propagate a particular religious belief as a charity. — See 6 L. N. S. 320, 321. Voluntary parol in personal property, how created. — See 51 A. S. 389. Voluntary trusts — Arising from the declaration of the truster. — See 34 A. S. 189. Same — Mistake, fraud, undue influence, etc., as a ground for relief from. — See 19 L. 767. Voting trusts of corporate stock. — See 15 L. 683. Who may be appointed trustee by donee of power to appoint. —See 4 A. C. 405. Words, particular necessary to create. — See 1 A. R. 34; 8 W. & P. 7122. §2216. VOLUNTARY TRUST, WHAT. A voluntary trust is an obligation arising out of a personal confidence reposed in, and voluntarily accepted by, one for the benefit of another. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 23 pars, annotation. 85 C. 436, 445, 25 P. 22, 24 (construed with other sections); 95 C. 63, 74 (applied, but erroneously cited as § 2216 C. C. P.), 30 P. 301, 303 (correct citation): 144 C. 314, 317, 77 P. 942 (cited and construed with other sections; language quoted in full, but no credit given to section of code). See Kerr's Cyc. C. C. § 2215 and note. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to trust arising from undue influence, etc., see Kerr's Cyc. C. C. § 2224 and note. §2217. INVOLUNTARY TRUST, WHAT. An involuntary trust is one which is created by operation of law. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 54 pars, annotation. 76 C. 469. 471, 9 A. S. 242. 18 P. 429, 430 (construed with § 2224); 85 C. 436, 445, 25 P. 22, 24 (effect of code as to trust in 1167 §§ 2218, 2219 CIVIL CODE. [Div.III,Pt.IV. relation to personal propertj', created before its adoption); 99 C. 587, 590, 34 P. 331 (construed and applied). As to constructive or resulting trusts in favor of party paying purchase money, see Kerr's Cyc. C. C. § 853 and note. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to trusts by operation of law, see Kerr's Cyc. C. C. § 852 note pars. 264-411. § 2218. PARTIES TO THE CONTRACT. The person whose confidence creates a trust is called the truster; the person in whom the confidence is reposed is called the trustee; and the person for whose benefit the trust is created is called the beneficiary. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 82 C. 351, 374, 16 A. S. 137, 23 P. 16, 20 (cited); 85 C. 436, 445, 25 P. 22, 24 (effect of code as to trust in relation to personal property, created before its adoption). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. § 2219. WHAT CONSTITUTES ONE A TRUSTEE. Every one who voluntarily assumes a relation of personal confidence with another is deemed a trustee, within the meaning of this chapter, not only as to the person who reposes such confi- dence, but also as to all persons of whose affairs he thus acquires information which was given to such person in the like confidence, or over whose affairs he, by such confidence, obtains any control. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 37 pars, annotation. 72 C. 556, 559, 1 A. S. 84, 14 P. 306 (construed and applied with other sections); 82 C. 351, 373, 16 A. S. 137, 23 P. 16, 20 (construed and applied with other sections); 85 C. 436, 445, 446, 25 P. 22, 24 (construed and applied with other sections); 120 C. 322, 323, 49 P. 129, 52 P. 723 (construed and aplpied with other sections); 120 C. 668, 678, 53 P. 304 (construed and applied); 125 C. 227, 230 (construed and applied but erroneously cited as § 2290), 57 P. 894, 895 (correct citation); 125 C. 674, 675, 683, 58 P. 271 (construed and applied); 130 C. 352, 357, 62 P. 555; 133 C. 489, 493, 65 P. 1044 (construed and applied with otiier 1168 Tit.VIII,ch.I,art.I.] PURPOSES. §§ 2220, 2221 sections): 141 C. 56, 57, 61, 74 P. 433 (construed and applied); 142 C. 59, 69, 75 P. 649 (construed and applied with other sections); 49 P. 129, 130 (construed and applied); 2 C. A. 479, 483, 84 P. 326 (applied to fiduciary relation in which husband stood toward his wife). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2220. FOR >VHAT PURPOSE A TRUST MAY BE CRE- ATED. A trust may be created for any purpose for which a contract may lawfully be made, except as otherwise prescribed by the titles on uses and trusts and on transfers. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 58 C. 457, 482, 483 (construed and applied); 70 C. 449, 458 (applied but erroneously cited as § 2320), 11 P. 659, 661 (correct citation); 71 C. 513, 532, 12 P. 570 (construed and applied); 85 C. 436, 446, 25 P. 22, 24 (effect of code as to trust in relation to personal 'property, created before its adoption); 108 C. 627, 656, 49 A. S. 97, 41 P. 772 (construed and applied with other sections); 123 C. 140, 144, 55 P. 681 (construed and applied). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2221. VOLTNTARY TRUST, HOW CREATED AS TO TRUSTER. Subject to the provisions of section eight hun- dred and fifty-two, a voluntary trust is created, as to the truster and beneficiary, by any words or acts of the truster, indicating with reasonable certainty: 1. An intention on the part of the truster to create a trust; and, 2. The subject, purpose, and beneficiary of the trust. HKstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 67 pars, annotation. 58 C. 457, 466, 483 (construed and applied with otlier sections); 70 C. 449, 452, 11 P. 659, 661 (construed and applied with other sections); 79 C. 613, 625, 22 P. 50, 53 (construed and applied with §2222); 85 C. 436, 446, 25 P. 22, 24 (effect of code as to trust in relation to personal property, created before its adop- tion); 95 C. 160, 167, 27 P. 160, 161, 30 P. 196 (construed and applied with §2222); 106 C. 651, 655, 40 P. 8 (trust creating no beneficiary is radically defective): 108 C. 627, 656, 49 A. S. 97, 1169 § 2222 CIVIL CODE. [Div.III,Pt.IV. 41 P. 772 (construed and applied with otlier sections); 112 C. 279, 284, 44 P. 565 (construed and applied with §852); 122 C. 19, 25, 54 P. 370 (construed and applied); 124 C. 418, 421, 57 P. 219 (construed and applied with §§852, 857); 126 C. 189, 191, 58 P. 543 (construed and applied with other sections) ; 132 C. 21, 27, 63 P. 1071 (what circumstances do not show express trust); 135 C. 361, 367, 67 P. 333 (construed and applied with §2222); 136 C. 92, 96, 68 P. 482 (construed and applied with other sections); 144 C. 314, 318, 77 P. 942 (construed and applied); 40 P. 954 (construed and applied with §2222); 127 U. S. 300, 311, 312, 32 L. ed. 138, 143 (is merely declaratory of pre-existing law). As to effect of depositing money in bank in trust for tlTird person, see 32 L. 373. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to voluntary parol trust in personal property, see 51 A. D. 756; 51 A. S. 389. As to voluntary trusts arising from declaration of the truster, see 34 A. S. 189. As to when beneficiaries must be designated in trust, see 61 A. S. 623. § 2222. HOW CREATED AS TO TRUSTEE. Subject to the provisions of section eiglit hundred and fifty two, a voluntary trust is created, as to the trustee, by any words or acts of liis indicating, witli reasonable certainty: 1. His acceptance of the trust, or his acknowledgment, made upon sufficient consideration, of its existence; and, 2. The subject, purpose, and beneficiary of the trust. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 26 pars, annotation. 77 C. 330, 339, 19 P. 513, 516 (construed and applied with §2224); 79 C. 613, 625, 22 P. 50, 53 (construed and applied with §2224); 85 C. 436, 445, 446, 25 P. 22, 24 (construed and applied with other sections); 95 C. 160, 167, 27 P. 160, 161, 30 P. 196 (construed and applied with §2221); 40 P. 954, 955 (construed and applied with §2221); 108 C. 627, 656, 49 A. S. 97, 41 P. 772 (construed and applied with other sections); 122 C. 19, 25, 54 P. 370 (construed and applied); 132 C. 21, 27, 63 P. 1071 (construed and applied with §2221); 135 C. 361, 367, 67 P. 333 (construed and applied with §2221); 136 C. 153, 155, 68 P. 579 (construed and applied with other sections); 137 C. 634, 636, 66 P. 369, 70 P. 861 (construed and applied); 148 C. 149, 154, 82 P. 679, 1 L. N. S. 312 (express trust in homestead, in favor of 1170 Tit.VIII,ch.I,art.I.] INVOLUNTARY TRUST. §§2223,2224 third person, can be created only how); 149 C. 24, 29, 84 P. 417 (oral declarations are admissible to establish trust in person- alty); 152 C. 338, 342, 92 P. 864 (distributee's mere acceptance of property under decree giving it in trust is acceptance of trust); 3 C. A. 741, 743, 86 P. 1108 (applied — what acts signify acceptance of trust). As to effect of depositing money in bank in trust for third person, see 32 L. 373. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to necessity of assent of trustee, see 39 A. D. 187. §2223. INVOLUNTARY TRUSTEE, WHO IS. One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 44 pars, annotation. 58 C. 115, 121, 122 (construed and applied); 85 C. 436. 445. 25 P. 22, 24 (construed and applied with other sections); 107 C. 373, 377, 40 P. 492 (construed and applied with §2224); 118 C. 102, 106, 50 P. 386 (construed and applied with other sections); 148 C. 558, 561, 83 P. 1076 (applied with § 2224 — involuntary trustee of mistaken deposit in bank). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to trustee commingling money, see Kerr's Cyc. C. C. § 2236 and note. As to when a trust ex maleficio arises, see 57 A. S. 203. §2224. INVOLUNTARY TRUST RESULTING FR03I NEG- .LIGE\CE, ETC. One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it. History: Knacted March 21, 1872. See Kerr's Cyc. C. C. for 124 pars, annotation. 55 C. 555, 562 (referred to with other sections in dis. op.); 58 C. 115, 122, 123 (construed and applied with other sections); 67 C. 237, 7 P. 645 (construed and applied); 71 C. 105. 110. 11 P. 853. 855 (construed and applied); 76 C. 469. 471. 9 A. S. 242, 18 P. 429, 430 (construed and applied with §2217); 77 C. 330, 339, 19 P. 513. 516 (construed and applied with § 2222); 1171 § 2224 CIVIL CODE. [Div.III,Pt.IV. 85 C. 11, 35, 20 A. S. 197, 9 L. 376, 24 P. 707, 712 (construed and applied); 85 C. 436, 445, 25 P. 22, 24 (construed and applied with other sections); 86 C. 596, 600, 25 P. 132, 133 (construed and applied): 98 C. 86, 93, 32 P. 805 (construed and applied); 103 C. 178, 183, 37 P. 216 (referred to); 107 C. 373, 377, 40 P. 492 (construed and applied with §2223); 112 C. 279, 286, 44 P. 565 (construed and applied); 118 C. 102, 106, 50 P. 386 (construed and applied with other sections); 126 C. 189, 192, 58 P. 543 (con- strued find applied); 131 C. 73. 74, 63 P. 158 (construed and applied); 132 C. 1, 5, 63 P. 1022 (construed and applied with other sections); 133 C. 489, 493, 65 P. 1044 (constructive trust — deeds procured by fraud and undue influence); 141 C. 56, 60, 62, 74 P. 433 (construed and applied); 142 C. 59, 69, 75 P. 649 (construed and applied with other sections in dis. op.); 144 C. 305, 312, 77 P. 954 (referred to with other sections); 148 C. 149, 153, 82 P. 679, 1 Li. N. S. 312 (construed and applied — no trust in home- stead when); 148 C. 558, 561, 83 P. 1076 (applied with §2223— involuntary trustee of mistaken deposit in bank); 150 C. 785, 788. 90 P. 135 (applied to property gained by violation of trust); 2 C. A. 479, 483, 84 P. 326 (applied where husband fraudulently obtained his wife's money and applied it to purchase of property in dispute); 25 F. 337, 341 (applied — wrong- fully obtaining title to land — constructive trustee); 35 F. 816, 818 (fraudulent acquisition of title to mining claim). As to admissibility of parol evidence in cases of trusts in favor of husband or wife from payment of purchase money, see Kerr's Cyc. C. C. § 852 note pars. 326, 329, 358, 365; § 853 note pars. 50-54, 99, 102, 112, 114. As to application of statute of frauds, see Kerr's Cyc. C. C. § 852 note pars. 264-267. As to application of statute of frauds to trusts arising from payment of purchase money, see Kerr's Cyc. C. C. § 853 note par. 107. As to constructive trusts arising through fraud, undue influence, etc., see 11 L. 381. As to evidence and burden of proof to establish resulting, constructive, or involuntary trusts, see Kerr's Cyc. C. C. § 852 note pars. 395, 411; §853 note pars. 81-118. As to fraud in devise or bequest impressed with trust, see 2 L. 662. As to involuntary trusts as between parent and child, see Kerr's Cyc. C. C. § 852 note pars. 340, 357, 359, 364. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to promise to leave property by will, see Kerr's Cyc. C. C. § 852 note pars. 337, 340, 341, 357. As to resulting trust from purchase by partner with part- nership funds, see Kerr's Cyc. C. C. § 853 note pars. 55-57. 1172 i Tit.VIII.ch.I.art.II.] OBLIGATION. §2228 As to resulting trust in favor of wife from husband's purchase witli her funds, see Kerr's Cyc. C. C. § 853 note pars. 50-54. As to trusts arising- from mining claims and transactions in government lands, see Kerr's Cyc. C. C. § 852 note pars. 366-386. As to trust created by purchase in own name with funds of another, see Kerr's Cyc. C. C. § 853 and note. As to when resulting trust does not arise in favor of party paying purchase money, see Kerr's Cyc. C. C. § 853 note pars. 66-80. Principal and agent. — As to resulting trvists from trans- actions between, see Kerr's Cyc. C. C. § 853 note pars. 58-65. ARTICLE II. § 2228, § 2229 § 2230 § 2231 § 2232 S 2233 § 2234 § 2235 § 2236 § 2237 § 2238 S ooog OBLIGATIONS OF TRUSTEES. Trustee's obligation to good faitli. Trustee not to use property for his own profit. Certain transactions forbidden. Trustee's influence not to be used for his advantage. Trustee not to assume a trust adverse to interest of bene- ficiary. To disclose adverse interest. Trustee guilty of fraud, when. Presumption against trustees. Trustee mingling trust property with his own. Measure of liability for breach of trust. Same. [For losses only, when.] Cotrustees, how far liable for each other. §2228. TRUSTEE'S OBLIGATION TO GOOD FAITH. In all matters connected with his trust, a trustee is bound to act in the highest good faith toward his beneficiary, and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 82 C. 351, 374, 16 A. S. 137, 23 P. 16, 20 (construed and applied with other sections); 86 C. 623, 629, 25 P. 135, 137 (construed and applied); 94 C. 642, 647, 30 P. 4 (construed and applied); 112 C. 53, 61, 44 P. 333, 33 L. 788 (referred to with other sec- tions); 50 P. 1072, 1073 (construed and applied); 133 C. 489, 1173 §§ 2229, 2230 CIVIL CODE. [Div.III.Pt.IV. 493, 65 P. 1044 (referred to); 136 C. 460, 463, 69 P. 83 (con- strued and applied with other sections); 142 C. 638, 641, 76 P. 486, 487 (construed and applied); 144 C. 603, 606, 78 P. 9 (con- strued and applied); 147 C. 725, 732, 82 P. 384 (construed and applied with other sections — constructive trust in favor of decedent's estate); 150 C. 785, 787, 90 P. 135 (applied with §2229 to option to purchase land); 4 C. A. 438, 442, 88 P. 510 (applied to joint business enterprise); 5 C. A. 228, 232, 90 P. 39, 40 (para- mount and vital principle of all agencies is good faith). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2229. TRUSTEE IVOT TO USE PROPERTY FOR HIS OWN PROFIT. A trustee may not use or deal with the trust property for his own profit, or for any other purpose uncon- nected with the trust, in any manner. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 31 pars, annotation. 82 C. 351, 374, 16 A. S. 137, 23 P. 16, 20 (construed and applied with other sections); 93 C. 17, 30, 28 P. 788, 790 (construed and applied); 97 C. 403, 410, 32 P. 441, 443 (construed and applied); 109 C. 170, 177, 41 P. 865 (construed and applied); 112 C; 53, 61, 44 P. 333, 33 L. 788 (construed and applied with other sections); 120 C. 467, 471, 52 P. 822 (construed and applied); 124 C. 175, 181, 56 P. 887 (construed and applied); 130 C. 245, 257, 62 P. 466, 467, 600 (construed and applied with other sections); 131 C. 656, 659, 63 P. 1011 (construed and applied with §2230); 133 C. 634, 639, 85 A. S. 233, 66 P. 12 (referred to); 142 C. 638, 641 (wrongfully cited as § 2239 in construing and applying provi- sions in §§ 2228, 2322), 76 P. 486, 487 (same error) ; 145 C. 352, 364, 78 P. 550 (construed and applied with other sections); 146 C. 585, 589, 80 P. 1034 (applied to pledge of bonds by bank but secretly assigned for benefit of its president); 147 C. 725, 732, 82 P. 384 (construed and applied with other sections — constructive trust in favor of decedent's estate); 150 C. 785, 787, 90 P. 135 (applied with §2228 to option to purchase land); 97 F. 696, 713 (cited — resulting trust). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to right of cestui que trust to follow trust funds, see Kerr's Cyc. C. C. § 2236 and note. § 2230. CERTAIN TRANSACTIONS FORBIDDEN. Neither a trustee nor any of his agents may take part in any transac- tion concerning the trust in which he or any one for whom 1174 Tit.VIII,ch.I,art.II.] WHAT FORBIDDEN. § 2230 he acts as agent has an interest, present or contingent, adverse to that of his beneficiary, except as follows: 1. When the beneficiarJ^ having capacity to contract, with a full knowledge of the motives of the trustee, and of all other facts concerning the transaction which might affect his own decision, and without the use of any influence on the part of the trustee, permits him to do so; 2. When the beneficiary not having capacity to contract, the proper court, upon the like information of the facts, grants the like permission; or, 3. When some of the beneficiaries having capacity to con- tract, and some not having it, the former grant permission for themselves, and the proper court for the latter, in the" manner above prescribed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 70 pars, annotation. 54 C. 103, 106 (construed and applied); 22 P. 485, 488 (agent may purchase corporate stock of his principal, if he deals fairly and honestly); 81 C. 303, 319, 323, 22 P. 665, 670 (construed and applied with §2234); 86 C. 623. 629, 25 P. 135, 137 (construed and applied); 98 C. 171, 177, 32 P. 980, 981 (construed and applied); 112 C. 53, 61, 44 P. 333, 33 L. 788 (construed and applied); 113 C. 221, 237, 41 P. 1017, 45 P. 252 (construed and applied with other sections); 121 (2. 282, 285, 287, 53 P. 699 (con- strued and applied); 130 C. 245. 257, 62 P. 466, 600 (construed and applied witii other sections); 130 C. 431, 433, 62 P. 749 (con- strued and applied with other sections); 131 C. 656, 659, 63 P. 1011 (construed and applied with other sections); 66 P. 175, 177 (construed and applied with other sections); 138 C. 81, 95, 70 P. 1008 (construed and applied); 144 C. 603, 606. 78 P. 9 (con- strued and applied); 145 C. 352, 363, 365, 78 P. 550 (construed and applied with §2229); 146 C. 407, 410, 80 P. 511 (applies to directors of corporation, but transaction between director and his corporation is not necessarily void when — transaction is to be regarded how); 147 C. 725, 732, 82 P. 384 (construed and applied with other sections — constructive trust in favor of decedent's estate); 45 F. 518, 527 (this section and §2234 are applicable to directors of corporations in their trust relations); 97 F. 696, 713 (cited — resulting trust). As to many miscellaneous iiintt<'rs as to trusts ;niil ti-nstees, see note § 2215, ante. 1175 §§ 2231-2233 CIVIL CODE. [Div.III.Pt.IV. § 2231. TRUSTEE'S INFLUENCE NOT TO BE USED FOR HIS ADVANTAGE. A trustee may not use the influence which his position gives him to obtain any advantage from his ben- eficiary. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 94 C. 446, 461, 29 P. 957 (construed and applied); 103 C. 97, 101, 3" P. 189 (construed and applied); 113 C. 221, 237, 41 P. 1017, 45 P. 252 (construed and applied with other sections); 138 C. 81, 95, 70 P. 1008 (construed and applied with other sections in dis. op.); 142 C. 59, 69, 75 P. 649 (construed and applied with other sections); 142 C. 638, 641, 76 P. 486, 487 (construed and applied with other sections). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. § 2232. TRUSTEE NOT TO ASSUME A TRUST ADVERSE TO INTEREST OF BENEFICIARY. No trustee, so long as he remains in the trust, may undertake another trust adverse in its nature to the interest of his beneficiary in the subject of tlie trust, without the consent of the latter. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 113 C. 221, 237, 41 P. 1017, 45 P. 252 (construed and applied with other sections); 121 C. 327, 328, 53 P. 702 (construed and applied with § 2234); 66 P. 175, 177 (construed and applied with other sections); 138 C. 81, 95, 70 P. 1008 (construed and applied with other sections); 142 C. 638, 641, 76 P. 48G, 487 (construed and applied with other sections). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. § 2233. TO DISCLOSE ADVERSE INTEREST. If a trustee acquires any interest, or becomes charged with any duty, adverse to the interest of his beneficiary in the subject of the trust, he must immediately inform the latter thereof, and may be at once removed. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 55 C. 555, 562 (referred to with other sections in dis. op.); 86 C. 623, 629, 25 P. 135, 137 (construed and applied with other 1176 Tit.VITI,ch.T,art.II.] FRAUD— PRBSUMPTIOUS. §§ 2234, 2235 sections); 113 C. 221, 237, 41 P. 1017, 45 P. 252 (construed and applied with other sections); 66 P. 175, 177 (construed and applied with otlier sections). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2234. TRUSTEE GUILTY OF FRAUD, WIIEX. Every violatiou of the provisions of the preceding sections of this article is a fraud against the beneficiary of a trust. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 52 C. 403, 406 (construed and applied); 81 C. 303, 319, 22 P. 665, 670 (construed and applied with §2230); 86 C. 623, 629, 25 P. 135, 137 (construed and applied with other sections); 94 C. 446, 461, 29 P. 957 (construed and applied with other sections);- 97 C. 403, 410, 32 P. 441 (construed and applied with §2229); 103 C. 97, 102, 37 P. 189 (construed and applied); 113 C. 221, 231, 237, 41 P. 1017, 45 P. 252 (construed and applied with other sections); 121 C. 327, 328, 53 P. 702 (construed and applied with other sections); 130 C. 431, 433, 62 P. 749 (construed and ap- plied); 131 C. 73, 79, 63 P. 158 (referred to in dis. op.); (C. Sept. 10, 1901), 66 P. 175, 177 (construed and applied with other sec- tions); 138 C. 81, 95, 70 P. 1008 (referred to with other' sections in dis. op.); 145 C. 352, 363, 78 P. 550 (construed and applied); 146 C. 585, 589, 80 P. 1034 (applied to pledge of bonds by bank but secretly assigned for benefit of its president); 45 F. 518, 527 (this section and § 2230 are applicable to directors of cor- porations in their trust relations); 97 F. 696, 713 (cited — result- ing trust). As to many miscellaneous matters as to trusts and trustees, see note §2215, ante. §2235. PRESUMPTION AGAINST TRUSTEES. All trans- actions l)etween a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence. UlNtory: Knacted March 21, 1S72. See Kerr's Cyc. C. C. for IS pars, annotation. 54 C. 439, 440 (cited by mistake for §2395); 72 C. 556, 559, 1 A. S. 84, 14 P. 306 (construed and applied); 73 C. 157, 161, 14 P. 576, 578 (construed and applied); 75 C. 525, 529. 7 A. S. 189. 1177 §§ 2236, 2237 CIVIL CODE. [Div.III,Pt.IV. 17 P. 689, 691 (construed and applied); 82 C. 351, 374, 16 A. S. 137, 23 P. 16, 20 (construed and applied witli other sections); 94 C. 446, 461, 29 P. 957 (construed and applied witli otlier sec- tions); 103 C. 97, 100, 101, 37 P. 189 (construed and applied with other sections); 49 P. 129, 130 (construed and applied); 120 C. 322, 323, 324, 52 P. 723 (construed and applied) ; 130 C. 352, 357, 358, 62 P. 555 (construed and applied); 66 P. 175, 177 (construed and applied with other sections); 134 C. 170, 172, 173, 66 P. 231 (construed and applied); 136 C. 460, 463, 69 P. 83 (construed and applied with other sections); 137 C. 176, 183, 69 P. 965 (referred to), 137 C. 685, 693, 695, 697, 70 P. 771 (construed); 142 C. 59, 69, 75 P. 649 (construed and applied with other sec- tions); 142 C. 638, 641, 76 P. 486, 487 (construed and applied with other sections); 147 C. 495, 508, 82 P. 57 (circumstances which, if taken alone, would raise technical implication or pre- sumption that will was procured by undue influence) ; 2 C. A. 479, 485, 84 P. 326 (applied to fraud by husband upon his wife). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2236. TRUSTEE 3II>GLI>G TRUST PROPERTY WITH HIS OWN. A trustee who wilfully and unnecessarily mingles the trust property with his own, so as to constitute himself in appearance its absolute owner, is liable for its safety in all events, and for the value of its use. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 415, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 615. See Kerr's Cyc. C. C. for 55 pars, annotation. 97 C. 196, 202, 31 P. 937 (construed and applied); 120 C. 533, 536, 537, 65 A. S. 197, 52 P. 852 (construed and applied); 142 C. 638, 641, 76 P. 486, 487 (construed and applied with other sections). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to rig-ht to follow trust funds, see 32 A. S. 125: 46 A. S. 608; 2 L. 480; 7 L. 570. §2237. MEASURE OF LIABILITY FOR BREACH OF TRUST. A trustee who uses or disposes of the trust property, contrary to section twenty-two hundred and twenty-nine, may, at the option of the beneficiary, be required to account for all profits so made, or to pay the value of its use, and, if he has 1178 Tit.VIII,ch.I,art.II.] LOSSES— COTRUSTEE. §§2238,2239 disposed thereof, to replace it, with its fruits, or to account for its proceeds, with interest. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 55 C. 555, 563 (referred to in dls. op.); 98 C. 472, 478, 33 P. 484 (mineral land may be selected as a homestead); 120 C. 467, 471, 52 P. 822 (construed and applied with §2229); 133 C. 634, 639, 85 A. S. 233, 66 P. 12 (referred to with other sections); 142 C. 638, 641, 76 P. 486, 487 (construed and applied with other sections); 5 C. A. 228, 235 (applied but erroneously cited as § 2237 C. C. P.), 90 P. 39, 42 (correct citation). As to liability of trustee for compound interest, see Kerr's Cyc. C. C. § 2262 and note. As to liability of trustee for non-investment, see Kerr's Cyc. C. C. § 2262 and note. As to liability of trustee for use of property for his own benefit, see Kerr's Cyc. C. C. §§ 2229, 2230 and notes. As to many iniscellaneous matters as to trusts and trustees, see note § 2215, ante. § 2238. SAME. [FOR LOSSES ONLY, WHEX.] A trustee who uses or disposes of the 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 136 C. 432, 445, 89 A. S. 153, 64 P. 692, 69 P. 77 (construed and applied); 142 C. 638, 641, 76 P. 486, 487 (construed and applied with other sections). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2239. COTRUSTEES, HOW FAR LL4BLE FOR EACH OTHER. A trustee is responsible for the wrongful acts of a cotrustee to which he consented, or which, by his negligence, he enabled the latter to commit, but for no others. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 87 C. 1, 6, 25 P. 157, 159, 11 L. 264 (construed and applied); 120 C. 467, 471, 52 P. 822 (construed and applied); 142 C. 638, 1179 §§ 2243, 2244 CIVIL CODE. [Div.III.Pt.IV. 641 (erroneously cited for § 2229 in construing- and applying provisions in §§ 2228, 2322), 76 P. 486, 487 (same error). As to liability of trvistees, executors, etc., for acts and defaults of their cotrustees, see 42 A. D. 288-293; 11 Paige Ch. (N. Y.) 299, 5 L,. ed. 142; 3 Sandf. Ch. (N. Y.) 99, 7 L. ed. 785; 35 U. S. (10 Pet.) 532, 562, 9 L. ed. 522. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. ARTICLE III. OBLIGATIONS OF THIRD PERSONS. § 2243. Third person, when involuntary trustee. § 2244. When third person must see to application of trust prop- erty. §2243. THIRD PEKSOX, >VHEN INVOLUNTARY TRUS- TEE. Every one to whom property is transferred in violation of a trust, holds the same as an involuntary trustee under such trust, unless he purchased it in good faitli, and for a valuable consideration. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 55 C. 555, 562 (referred to with other sections in dis. op.); 96 C. 298, 307, 31 A. S. 209, 31 P. 166 (construed and applied with §856); 105 C. 60, 64, 38 P. 519 (construed and applied); 58 P. 298, 301 (construed and applied); 134 C. 641, 657, 60 P. 974, 66 P. 982 (construed and applied with §870); 83 F. 48, 52 (construed with § 869 — corporation stock, issued in excliange for land, constitutes the corporation a purchaser for value). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. § 2244. WHEN THIRD PERSON MUST SEE TO APPLICA- TION OF TRUST PROPERTY. One who actually and in good faith transfers any money or other property to a trustee, 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. Otlier persons must, at their peril, see to the 1180 Tit.VIII.ch.Il,art.I.] NATURE-CREATION. § 2250 proper application of money or other property paid or deliv- ered by them. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 118 C. 102, 106, 50 P. 386 (construed and applied with otn<-i sections). , ^ ♦ „„ As to many miscellaneous matters as to trusts and trustees. see note § 2215, ante. CHAPTER II. TRUSTS FOR THE BENEFIT OF THIRD PERSONS. Article I. Nature and Creation of Trust, §§ 2250-22.^4. 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. ARTICLE T. NATURE AND CREATION OF THE TRUST. § 2250. Who are trustees within the scope of this chapter. § 2251. Creation of trust. § 2252. Trustees appointed by tourt. § 2253. Declaration of trust. § 2254. Same. [Declarations before acceptance.] §'.>'2:,o. >vno .VKE tuustees avithin scope ov this (^lI.VrTEK. The provisions of this chapter apply only to express trusts, created for the benefit of another than the truster, and in which the title to the trust property is vested in the trustee; not including, however, those of executors, administrators, and guardians, as such. History: ICnactrd March 21. 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 137 C. 634, 638, 66 P. 369. 70 P. 861 (construed an.l appli-d): 1181 §§ 2251-2253 CIVIL CODE. [Div.III,Pt.IV. 144 C. 121, 125, 77 P. 825 (executors, as such, are not trustees of express trust); 145 C. 646, 649, 79 P. 358 (special administra- tors are included in exception of section); 153 C. 245, 250, 94 P. 1047 (what is implied in term "trust"). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2251. CREATION OF TRUST. The mutual consent of a truster aud trustee creates a trust of which the beneficiary may take advantage at any time prior to its rescission. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 61 C. 333, 334 (construed and applied); 91 C. 191, 193, 25 A. S. 171, 27 P. 598 (construed and applied witli other sections): 95 C. 160, 168, 27 P. 160, 30 P. 196 (construed and applied)'; 110 C. 568, 576, 42 P. 1086 (construed and applied); 122 C. 19, 25, 54 P. 370 (construed and applied). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to right of beneficiary to afRrm and enforce trust, see notes 4 John. Ch. (N. Y.) 136, 1 L. ed. 791; 3 John. Ch. (N. Y.) 229, 1 L. ed. 602. §2252. TRUSTEES APPOINTED BY COURT. When a trustee is appointed by a court or public officer, as such, such court or officer is the truster, within the meaning of the last section. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 91 C. 191, 193, 25 A. S. 171, 27 P. 598, 599 (construed and applied with other sections); 142 C. 15, 16, 100 A. S. 99, 75 P. 566 (cited). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2253. DECLARATION OF TRUST. The nature, extent, and object of a trust are expressed in the declaration of trust. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. § 2254 and note. • As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. 1182 II Tit.VIII,ch.II,art.II.] OBLIGATIONS. §§ 2254-2259 §2254. SAME. [DECLARATIONS BEFORE ACCEPT- ANTE.] All declarations of a truster to his trustees, in rela- tion to the trust, before its acceptance by the trustees, or any of them, are to be deemed part of the declaration of the trust, except that when a declaration of trust is made in writing, all previous declarations by the same truster are merged therein. His^tury: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 23 pars, annotation. As to declaration of trusts, see 1 L. 327; 11 L. 456: 12 L. 667. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. ARTICLE 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. § 2261. Investment of money by trustee. § 2262. Interest, simple or compound, on omission to invest trust moneys. § 2263. Purchase by trustee of claims against trust fund. §2258. TRUSTEES MIST OIJEY DECLARATION OF TRUST. A trustee must fulfil the purpose of the trust, as declared at its creation, and must follow all the directions of the truster given at thjit time, except as modified by the con- sent of all parties interested, in the same manner, and to the same exent, as an employee. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 58 C. 339, 340 (construed and applied): 142 C. l.'>, 1»!, 100 A. S. 99, 75 P. 566 (cited). As to many miscellaneous matters as to trusts and trust.'-s. see note § 2215, ante. §2259. DEGREE OF (ARE AND DILIGENCE IN EXECU- TION OF TRUST. A trustee, whether he receives any com- 1183 §§ 2260-2262 CIVIL CODE. [Div.III,Pt.IV. pensation or not, must use at least ordinary care and dili- gence in the execution of his trust. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 14 pars, annotation. 50 P. 1072, 1073 (construed and applied). As to many miscellaneous matters as to trusts and trustees, see note -3 2215, ante. As to when trustee is charged with simple or compound interest, see Kerr's Cyc. C. C. § 2262 and note. §2260. DUTY OF TRUSTEE AS TO APPOINTMEXT OF SUCCESSOR. 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 trustworthy successor before accepting his own final discharge. History: Enacted March 21, 1872. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. Succession — As to appointment of new trustee, see Kerr's Cyc. C. C. § 2287 and note. § 2261. INVESTMENT OF MONEY BY TRUSTEE. A trus- tee must invest money received by him under the trust, as fast as he collects a sufficient amount, in such manner as to afford reasonable security and interest for the same. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 137 C. 634, 638, 66 P. 369, 70 P. 861 (construed and applied with § 2262). As to amount of care required in general of trustees in preservation and protection of trust property, see 95 A. D. 392. As to investments which trustees may make without being liable for losses, see 40 A. D. 506-518. As to latitude allowed trustees in making investments, see 57 A. R. 111-114. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2262. INTEREST, SIMPLE OR COMPOUND, ON OMIS- SION TO INVEST TRUST MONEYS. If a trustee omits to invest the trust moneys according to the last section, he must 1184 Tit.VIII,ch.II,art.II.] CLAIM AGAINST FUND. §2263 pay simple interest thereon, if such omission is negligent merely, and compound interest if it is wilful. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 27 pars, annotation. 120 C. 467, 471, 52 P. 822 (construed and applied with §2239); 124 C. 568, 573, 57 P. 561 (construed and applied); 137 C. 634, 638, 66 P. 369, 70 P. 861 (construed and applied with other sec- tions). As to liability to trustees for compound interest, see 29 L. 622-659. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. § 2263. PURCHASE BY TRUSTEE OF CLADIS AGAINST TRUST FUND. A trustee cannot enforce any claim against the trust property which he purchases after or in con- templation of his appointment as trustee; but he may be allowed, by any competent court, to charge to the trust prop- erty what he has in good faith paid for the claim, upon dis- charging the same. HLstory: Enacted March 21, 1872. See Kerr's Cj'c. C. C. for 3 pars, annotation. 62 C. 373, 376 (construed); 147 C. 725, 732, 82 P. 384 (con- strued and applied with other sections — constructive trust in favor of decedent's estate). As to proliibited transactions by trustee with trust property for his own benefit, see Kerr's Cyc. C. C. § 2229 note. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to rights of purchaser for valuable consideration witliout notice, see Kerr's Cyc. C. C. §856 note; also Perry on Trusts, § 217. err's C. C— 38 1185 §§ 2267-2269 CIVIL CODE. [Div.III,Pt.IV. ARTICLE III. POWERS OF TRUSTEES. § 2267. Trustee's powers as agent. § 2268. All must act. § 2269. Discretionary powers. § 2267. TRUSTEE'S POWEKS AS AGENT. A trustee is a general agent for the trust property. His authority is such as is conferred upon him by the declaration of trust and by 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. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 41 pars, annotation. 37 P. 180, 184 (referred to); 139 C. 593, 594, 73 P. 452 (cited); 151 C. 606, 612, 91 P. 518 (construed and applied — this section refers to trust property alone). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. § 2268. ALL MUST ACT. Where there are several cotrus- tees, all must unite in any act to bind the trust pi'operty, unless the declaration of trust otherwise provides. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to how far trustees are liable for each otlier, see Kerr's Cj^c. C. C. § 2239 note. As to many miscellaneous inatters as to trusts and trustees, see note § 2215, ante. As to survivorship between coexecutors and right of survivor to act, see Kerr's Cyc. C. C. § 22 88 note. As to when one of several executors may act, see Kerr's Cyc. C. C. P. § 1355 note. §2269. DISCEETIOINARY POWERS. A discretionary power conferred upon a trustee is presumed not to be left to his arbitrary discretion, but may be controlled by the proper 1186 Tit.VIII,ch.II,art.IV.] INDEMNIFICATION. §§ 2273, 2274 court if not reasonably exercised, unless an absolute discre- tion is clearly conferred by the declaration of trust. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 8 pars, annotation. 133 C. 645, 648, 66 P. 17, 55 L. 216 (construed and applied). As to discretionary power of trustees, see 13 L. 212, 213. As to many miscellaneous matters as to trusts and trustees, sfee note § 2215, ante. ARTICLE IV. RIGHTS OF TRUSTEES. § 2273. Indemnification of trustee. I 2274. Compensation of trustee. § 2275. Involuntary trustee. §2273. IXDEMMFICATIOX OF TRUSTEE. A trustee is entitled to the repayment, out of the trust property, of all expenses actually and properly incurred by him in the per- formance of his trust. He is entitled to the repayment of even unlawful expenditures if they were productive of actual benefit to the estate. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 24 pars, annotation. 145 C. 646, 649, 79 P. 358 (not applicable to expenses incurred hy special administrator); 149 C. 1, 16, 84 P. 145, 6 L. N. S. 275 (trustees are entitled when, to expenses, including attor- neys' fees, in bringing action). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2274. C03irE>'S.4.TIO> OF TRUSTEE. Except as pro- vided in section seventeen hundred of the Code of Civil Pro- cedure, when a declaration of trust is silent upon the subject of compensation the trustee is entitled to the same compen- sation as an executor. If it specifies the amount of his com- pensation, 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 1187 § 2275 CIVIL CODE. [Div.III.Pt.IV. such compensation as may be reasonable under the circum- stances. If there are two or more trustees the compensation shall be apportioned among the trustees according to the services rendered by them respectively. History; Enacted March 21, 1872; amended March 19, 1889, Stats, and Amdts. 1889, p. 334; March 10, 1909, Stats, and Amdts. 1909, p. 252. See K(i-rr'.s Cyc. C. C. for 13 pars, annotation. 56 C. 628 (construed and applied). As to compensation for trustees, see 21 A. D. 88; 62 A. D. 210. As to compensation of trustees, see 17 A. D. 266-274. As to forfeiture of right to compensation, see 17 A. D. 274. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to rules of compensation in different states, see 17 A. D. 274. As to trustee's right to compensation for services and when same allowed by statute and by law, see 9 Paige Ch. (N. Y.) 398, bk. 4 L. ed. 749. As to waiver of compensation, see 17 A. D. 274. §2275. INVOLUNTARY TRUSTEE. An involuntary trus- tee, who becomes such through his own fault, has none of the rights mentioned in this article. History: Enacted March 21, 1872. As to involuntary trustees, see Kerr's Cyc. C. C. § 2217, 2223, 2224 and notes. As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to resulting trusts in favor of party paying purchase money or consideration, see Kerr's Cyc. C. C. § 853 and note. Party to whom property conveyed as mere matter of con- venience not entitled to compensation or to lien upon prem- ises.— See 102 C. 224, 225, 36 P. 417. 1188 Tit.VIII,ch.II,art.V.] extinguishment. §§ 2279, 2280 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 of trustee by court. § 2279. TRUST, HOW EXTINGUISHED. A trust is extin- guished by the entire fulfilment of its object, or by such object becoming impossible or unlawful. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 36 pars, annotation. 70 C. 326, 331, 11 P. 728, 730 (construed and applied with other sections); 73 C. 17, 20, 14 P. 377, 378 (construed and applied with §2282); 84 C. 295, 297, 24 P. 171, 172 (construed and applied); 113 C. 129, 142, 45 P. 270, 35 L. 269 (construed and applied with other sections); 124 C. 418, 420, 57 P. 219 (construed and applied with other sections). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. § 2280. NOT REVOCABLE. A trust cannot be revoked by the truster after its acceptance, actual or presumed, by the trustee and beneficiaries, except by the consent of all the beneficiaries, unless the declaration of trust reserves a power of revocation to the truster, and in that case the power must be strictly pursued. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 70 C. 449, 453, 11 P. 659, 661 (construed and applied); 109 C. 323, 331, 50 A. S. 43, 41 P. 1089 (construed and applied); 113 C. 129*, 142, 45 P. 270, 35 L. 269 (construed and applied with §2279); 122 C. 19, 26, 54 P. 370 (construed and applied); 56 P. 550, 552 (power of revocation does not prevent vesting of estate in trustee); 128 C. 1, 9, 60 P. 471 (construed and applied); 60 P. 475 (applied — what trust cannot be revoked by will of grantor). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. 1189 §§ 2281-2283 CIVIL CODE. [Div.III.Pt.IV. §2281. TRUSTEE'S OFFICE, HOW VACATED. The office of a trustee is vacated: 1. By his death; or, 2. By his discharge. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. As to many miscellaneoiis matters as to trusts and trustees, see note § 2215, ante. § 2282. TRUSTEE, HOW DISCHARGED. 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; 3. By such means as may be prescribed by the declaration of trust; 4. By the consent of the beneficiary, if he have capacity to contract; 5. By the judgment of a competent tribunal, in a direct pro- ceeding for that purpose, that he is of unsound mind; or, 6. By the superior court. History: Enacted March 21, 1872; amended February 15, 1883, Stats, and Amdts. 1883, p. 3. See Kerr's Cyc. C. C. for 9 pars, annotation. 73 C. 17, 20, 14 P. 377, 378 (construed and applied with § 2279); 132 C. 523, 542, 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed and applied). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. As to resignation and removal of trustees, see note 11 Paige Ch. (N. Y.) 5 L. ed. 148. As to right of trustee to devest himself of trust without con- sent, see note 11 Paige Ch. (N. Y.) 5 L. ed. 148. §2283. REMOVAL OF TRUSTEE BY COURT. The supe- rior court may remove any trustee who has violated or is unfit to execute the trust, or may accept the resignation of a trustee. Hi.story: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 8. 1190 Tit.VIII,ch.II,art.VI.] VACANCY, SURVIVORSHIP. §§ 2287-2289 See Kerr's Cyc. C. C. for 8 pars, annotation. 103 C. 249, 250, 37 P. 223 (referred to); 111 C. 628, 635, 44 P. 225 (construed and applied with § 2289). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. ARTICLE VI. SUCCESSION OR APPOINTMENT OF NEW TRUSTEES. § 2287. Vacant trusteeship filled by court. § 2288. Survivorship between cotrustees. § 2289. Superior court as trustee. §2287. VACAM TRUSTEESHIP FILLED BY COl KT. The superior court may appoint a trustee whenever there is a vacancy, and the declaration of trust does not provide a practicable method of appointment. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. S. See Kerr's Cyc. C. C. for 24 pars, annotation. 70 C S'e 333 11 P. 728, 731 (construed and applied with other sections); 91 C. 191, 193, 25 A. S. 171, 27 P. 598, 599 (con- strued and applied). As to many miscellaneous matters as to trusts and trustees, see note § 2215, ante. §2288. SURVIVOlJSmr BETWEEN ( (n RUSTEES. On the death, renunciation, or discharge of one of several cotrus- tees the trust survives to the others. HiMtury: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 70 C. 326, 333, 11 P. 728. 731 (construed and applied with other sections); 46 P. 463, 465 (construed and api^lA-^d). As to many miscellaneous matters as to trustst^o -d trustees, see n32'' Exceptions to general authority. § 2323. What included in authority to sell personal property. § 2324 What included in authority to sell real property. § 2325. Authority of general agent to receive price of property. § 2326. Authority of special agent to receive price. §2304. WHAT AUTHORITY MAY HE (OMEKHED. \n agent niav be authorized to do any acts which his prin- cipal might do, except those to which the latter is bound to give his personal attention. IliNtory: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 74 C. 586, 589, 16 P. 493. 495 (construed and applied): 1 C. A. 349, 355, 82 P. 265 (cited). As to many miscellaneous matters as to agency generaiij , see note § 2295, ante. Certificate of partnership may be signed and filed by agent.— See Kerr's Cyc. C. C. § 2305 and note: also §§ 2349-2351 and notes. 1203 §§ 2305-2307 CIVIL CODE. [Div.III.Pt.IV. §2305. AGENT MAY PERFOBM ACTS REQUIRED OF PRIIVCIPAL BY CODE. Every act which, according to this code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a con- trary intention clearly appears. History: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 4 pars, annotation. 74 C. 586, 589, 16 P. 493, 495 (applied). As to many miscellaneous matters as to agency generally, see note § 2295, ante. §2306. AGENT CANNOT HAVE AUTHORITY TO DE- FRAUD PRINCIPAL. An agent can never have authority, either actual or ostensible, to do an act which is, and is known or suspected by the person with whom he deals, to be a fraud upon the principal. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 87 C. 256, 262 (erroneously cited as §2306 C. C. P.), 23 A. S. 243 (same error), 25 P. 407, 408 (correct citation). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Fiduciary relation between principal and agent. — See Kerr's Cyc. C. C. § 2322 and note. §2307. CREATION OF AGENCY. An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 89 C. 237, 243, 26 P. 902, 904 (cited); 119 C. 646, 650, 51 P. 1083 (cited); 124 C. 682, 685, 57 P. 574 (cited); 130 C. 431, 434, 62 P. 749 (cited); 132 C. 95, 98, 64 P. 122 (applied); 141 C. 308, 311, 99 A. S. 75, 74 P. 851 (cited); 143 C. 501, 504, 77 P. 405 (cited). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Ratification of agent's acts. — See Kerr's Cyc. C. C. §§ 2310- 2314 and notes. Maxims applicable to ostensible agency. — See Kerr's Cyc. C. C. § 2317 and note. 1204 Tit.IX,ch.I,art.II.] CONSIDERATION. §§ 2308-2310 Presumption arising from delegation of ostensible authority. —See Kerr's Cyc. C. C. P. § 1962 subd. 3 and note. Retroactive effect of ratification.— See Kerr's Cyc. C. C. § 2310 and note par. 41. §2308. CONSIDERATION UNNECESSARY. A considera- tion is not necessary to make an authority, whether prece- dent or subsequent, binding upon the principal. History: Enacted March 21, 1872. §2309. FORM OF AUTHORITY. An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an Instrument in writing. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 17 pars, annotation. 78 C 629 632 21 P. 373, 374 (cited); 81 C. 540, 541, 21 P. 533, 22 P. 750 (applied); 94 C. 546, 549, 29 P. 1105 (applied); 37 P. 646, 647 (cited); 113 C. 221. 227. 229. 41 P. 1017. 45 P. 252 (applied); 141 C. 308, 311, 99 A. S. 75, 74 P. 851 (applied); 14. C. 399, 403, 76 P. 53 (applied); 143 C. 363, 366, 77 P. 71 (authority to exchange land must be in writing); 4 C. A. 553, 555. 88 P. 596 (contract for exchange without written authority, or written ratification of exchange is not binding); J C. A. 81, 83, 93 P. 89" 893 (construed and applied with § 2310— agreement to cancel lease— acceptance and retention of benefits is no ratification). As to extent of authority, see Kerr's Cyc C. C. § 2319 and note pars. 63-73. As to many miscellaneous matters as to agency generally, see note § 2295, ante. . . As to necessity for lease for more than year to be in writing, see Kerr's Cyc. C. C. § 1624 and note. Contracts required by law to be in writing.— See Kerr s Cyc. C. C. § 1624 and note. Evidence of agency.— See Kerr's Cyc. C. C. § 2295 and note pars. 11-34. Power of attorney to execute mortgage— Requisition of.— bee Kerr's Cyc. C. C. § 2933 and note. § 2310. RATIFICATION OF AGENT'S A( T. A ratification can be made only in the manner that would have been neces- sary to confer an original authority for the act ratified, or 1205 § 2311 CIVIL CODE. [Div.III,Pt.TV. where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 49 pars, annotation. 63 C. 129, 142, 49 A. R. 83 (cited in dis. op.); 82 C. 1, 6, 22 P. 925, 927 (referred to as inapplicable); 94 C. 546, 549, 29 P. 1105 (applied): 106 C. 594, 600, 39 P. 946 (cited); 109 C. 29, 40, 41 P. 1024 (applied); 113 C. 221, 227, 230, 231, 41 P. 1017, 45 P. 252 (cited); 114 C. 458, 461, 46 P. 295 (cited); 119 C. 646, 650, 51 P. 1083 (applied); 127 C. 261, 271, 59 P. 563 (construed); 130 C. 411, 416, 62 P. 611 (applied); 130 C. 431, 434, 62 P. 749 (cited); 141 C. 308, 311, 99 A. S. 75, 74 P. 851 (cited); 142 C. 399, 403, 76 P. 53 (applied); 143 C. 363, 366, 77 P. 71 (cited — ratification); 2 C. A. 393, 398, 84 P. 324 (quoted — what constitutes ratification of appointment of mining superintendent); 4 C. A. 553, 555, 88 P. 596 (authority to enter into contract for exchange of lands- how to be ratified); 5 C. A. 388, 391, 90 P. 485 (what is no rati- fication of agent's act); 7 C. A. 81, 83, 93 P. 892, 893 (construed and applied with § 2309 — agreement to cancel lease — acceptance and retention of benefits is no ratification). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Agent's authority to ratify another agent's act. — See Kerr's Cyc. C. C. § 2319 and note par. 58. Effect of subsequent ratification. — See Kerr's Cyc. C. C. § 2307 and note pars. 4, 5. Notice of principq,rs election to enforce contract made with agent.— See 55 A. S. 920, 921. Part of transaction — Ratification of. — See Kerr's Cyc. C. C. § 2311 and note. Ratification of acts of agent. — See 2 L. 809, 810. Rescission of ratification. — See Kerr's Cyc. C. C. § 2314 and note. Stockholders' consent to act of directors. — See Kerr's Cyc. C. C. § 2307 and note par. 8. Void ratification. — See Kerr's Cyc. C. C. § 2312 and note. Voluntary acceptance of benefit of transaction — Effect of. — See Kerr's Cyc. C. C. §1589 and note; §2319 and note par. 26; 17 A. S. 407. §2311. BATIFI€ATION OF PART OF A TRANSACTION. Ratification of part of an Indivisible transaction is a ratifica- tion of the whole. History: Enacted March 21, 1872. 1206 I Tit.IX,ch.I,art.II.] RATIFICATION. §§ 2312-2314 See Kerr's Cyc. C. C. for 2 pars, annotation ,, .1 p IT? C 2''1 231 (dis. op.), 236 (opinion in department), 41 f. 1017 45* P." 252 (cited); 144 C. 104, 112, 77 P. 828 (applied to act of attorney in fact in accepting release and giving new mort- gage); 2 C. A. 393, 399, 84 P. 324 (not applicable under peculiar ^^2 to many miscellaneous matters as to agency generally, see note § 2295, ante. §'>312. ^VHEX RATIFICATION YOID. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 63 C 129 142, 49 A. R. 83 (cited in dis. op.); 106 C. 594, 600. 39 P. 946 (referred to); 107 C. 37. 41. 39 P. 1066 (applied). _ As to many miscellaneous matters as to agency generally , see note §2295, ante. ra a «fi-is fi44 Contracts which cannot be ratified.— See 59 A. S. 638-644. Criminal act of agent— Power of principal to ratify.— See o A. S. 618-621. §2313. RATIFICATION NOT TO WORK INJURY TO THIRD PERSONS. No unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation 88 C 277 281, 26 P. 105, 106 (applied); 106 C. 594. 600. 39 P. 946 (cited); 107 C. 37, 41, 39 P. 1066 (applied). As to many miscellaneous matters as to agency generallj , see note § 2295. ante. §2314. RESCISSION OF RATIFICATION. A ratification may be rescinded when made without such consent as is required in a contract, or with an imperfect knowledge of the material facts of the transaction ratified, but not other- wise. History: Enacted March 21, 18 < 2. See Kerr's Cyc. C. C. for 5 pars, annotation fi^ r 129 142 49 A. R. 83 (cited in dis. op.); 113 C. — l, -^^J. 038 41 Pi017 (Cited in department); 146 C. 91, 99, 79 P. 850 1207 §§ 2315-2317 CIVIL CODE. [Div.III.Pt.IV. (exchange of lands, right to rescind ratification, as well as original transaction, after discovering falsity of facts relied upon). As to essentials of ratification, see Kerr's Cyc. C. C. § 2310 and note. As to many miscellaneous matters as to agency generally, see note § 2295, ante. Essentials of ratification being wanting, it is of no effect and may be repudiated.— See 16 C. 591, 623-626. §2315. MEASURE OF AGENT'S AUTHORITY. An agent has such authority as the principal, actually or ostensibly, confers upon him. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 66 C. 61, 64, 4 P. 952 (referred to); 68 C. 156, 162, 8 P. 824 (applied); 77 C. 449, 453, 19 P. 820, 822 (cited). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Implied and necessary authority. — See Kerr's Cyc. C. C. § 2319 and note. Ostensible authority. — See Kerr's Cyc. C. C. § 2317 and note. §2316. ACTUAL AUTHORITY, WHAT. Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 66 C. 61, 64, 4 P. 952 (referred to); 141 C. 699, 705, 75 P. 329 (cited); 147 C. 166, 170, 81 P. 402 (cited); 3 C. A. 554, 559, 86 P. 610 (applied). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Cognate section. — See Kerr's Cyc. C. C. § 2299 and note. Implied and necessary autliority of agent. — See Kerr's Cyc. C. C. § 2319 and note. Ostensible authority. — See Kerr's Cyc. C. C. § 2317 and note. §2317. OSTENSIBLE AUTHORITY, WHAT. Ostensible authority is such as a principal, intentionally or by want 1208 Tit.IX,ch.I,art.II.] AUTHORITY, NOTICE. § 2318 of ordinary care, causes or allows a third persons to believe the agent to possess. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 47 pars, annotation. 66 C 61 64, 4 P. 952 (referred to); 66 C. 459, 461, 6 P. 91 (construed); 82 C. 1, 5. 22 P. 925, 927 (referred to as inap- plicable); 87 C. 526, 528, 25 P. 758 (cited); 95 C. 1, 14, 29 A. S. 85 30 P. 96 (cited); 108 C. 227, 230, 41 P. 298 (cited); 113 C. 119, 123 45 P. 259 (referred to); 137 C. 95, 100, 69 P. 836, 1013 (cited); 14l'c 699 705 75 P. 329 (cited); 143 C. 501, 504, 77 P. 405 (cited); 147 C. 166', 170', 81 P. 402 (cited); 4 C. A. 354, 355, 88 P. 282 (cited — ratification of agency). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Cognate section.— See Kerr's Cyc. C. C. § 2300 and note. Creation of agency.— See Kerr's Cyc. C. C. § 2307 and note. Duty of stranger dealing with agent to ascertain extent of agency.— See Kerr's Cyc. C. C. § 2334 and note. Evidence of agency.— See Kerr's Cyc. C. C. § 2295 and note pars. 11-34. ^ ^ Implied and necessary authority of agent. — See Kerr s Cyc. C. C. § 2319 and note. Instruction as to scope of agency. — See Kerr's Cyc. C. C. § 2322 and note par. 5. Liability of principal for acts done under ostensible authority. —See Kerr's Cyc. C. C. § 2334 and note. Maxims applicable to ostensible agency. — See Kerr's Cyc. C. C. §§ 3515, 3515, 3543 and notes. Presumption arising from delegation of ostensible authority. —See Kerr's Cyc. C. C. P. § 1962 subd. 3 and note. Principal estopped to deny authority of agent. — See 2 L. 808, 809, 824. Principal's liability for agent's unauthorized act within scope of authority.— See 22 A. S. 189, 190. Ratification of agent's acts.— See Kerr's Cyc. C. C. § 2310 and note. Special and general agents. — See Kerr's Cyc. C. C. § 2297 and note; also §2300 and note par. 3. §2318. A«E>rS AITIKHUTY AS T() TEKSONS H W- I>G NOTICE OF KESTKU TIO>S ll'ON IT. Every a^ent has actually such authority as is defined by this title, unless specially deprived thereof by his principal, and has even then such authority ostensibly, except as to persons who have 1209 § 2319 CIVIL CODE. [Div.III.Pt.IV. actual or constructive notice of the restriction upon his authority. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 114 C. 396, 399, 46 P. 290 (cited); 137 C. 95, 100, 69 P. 836, 1013 (referred to). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Letter showing agency. — See Kerr's Cyc. C. C. § 2317 and note par. 26. Notice of agent's authority.- — See 26 A. S. 828. Private restrictions on agent's authority not to affect third persons. — See 2 L. 823, 824. Silence of agent as to limitations on authority. — See Kerr's Cyc. C. C. § 2322 and note par. 8. Special and general agents. — See Kerr's Cyc. C. C. § 2297 and note. §2319. AGENT'S NECESSARY AUTHORITY. An agent has authority : 1. To do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency; and, 2. To make a representation respecting any matter of fact, not including the terms of his authority, but upon which his right to use his authority 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 81 pars, annotation. 55 C. 421, 424, 36 A. R. 43 (applied); 61 C. 338, 341 (construed and applied); 68 C. 156, 162, 8 P. 824 (applied); 75 C. 159, 162, 7 A. S. 138, 16 P. 762, 763 (applied); 87 C. 526, 529, 25 P. 758, 759 (construed); 95 C. 1, 12, 29 A. S. 85, 30 P. 96, 98 (construed); 130 C. 100, 104, 62 P. 267 (applied); 137 C. 95, 100, 69 P. 836, 1013 (cited); 3 C. A. 371, 379, 85 P. 657 (declarations of person claim- ing to be agent are insufficient to establish agency or terms of his authority). As to fraudulent representations as to quantity of land sold, see Kerr's Cyc. C. C. § 2324 and note. As to many miscellaneous matters as to agency generally, see note § 2295, ante. 1210 Tit.IX,ch.I,art.II.] POWER— instructions. § 2320 As to ostensible authority to give receipt for money, see Kerr's Cyc. C. C. § 3217 and note pars. 41, 42. As to ratification, see Kerr's Cyc. C. C. § 2310 and note. As to termination of agency, see Kerr's Cyc. C. C. §§ 2355, 2356 and notes. Admissions of agents as evidence against principal. — See 53 A. D. 773-778. Approval of principal re. 776- 778. §2320. A (JEM'S rOWFK TO 1)IS(H{EV INSTHK THINS. Au ageut has power to disobey instructions in dealing with 1211 §§ 2321, 2322 CIVIL CODE. [Div.III.Pt.IV. the subject of the agency, in cases where it is clearly for the interest of his principal that he should do so, and there is not time to communicate with the principal. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 70 C. 449, 453 (erroneously cited for §2220), 11 P. 659, 661 (correct citation). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Agent, when may disregard orders, owing to unexpected emergency. — See 6 A. S. 37, 38; also 1 Encyc. L. 1061, 1062, where illustrations of rule are given, and limitations thereon stated. §2321. AUTHORITY TO BE CONSTRUED BY ITS SPE- CIFIC, RATHER THAN BY ITS GENERAL TERMS. When an authority is given partly in general and partly in specific terms, the general authority gives no higher powers than those specifically mentioned. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to authority of agent to sign notes for trading corpora- tion, see 69 F. 912. As to many miscellaneous matters as to agency generally, see note § 2295, ante. Common law declared, doctrine being elementary. — See 5 C 463, 464; 7 C. 171, 174, 68 A. D. 235; 8 C. 227, 232. §2322. EXCEPTIONS TO GENERAL AUTHORITY. An authority expressed in general terms, however broad, does not authorize an 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 two, chapter one, of the last title. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 81 C. 303, 319, 22 P. 665, 670 (applied); 84 C. 311, 314, 24 P. 284, 285 (cited); 92 C. 108, 112, 28 P. 57, 58 (cited); 121 C. 327, 328, 53 P. 702 (referred to); 123 C. 379, 383, 55 P. 1064 (referred 1212 Tit.IX,ch.I,art.II.] authority to sell. §§ 2323, 2324 to); 142 C. 638, 641, 76 P. 486, 487 (applied); 145 C. 352, 363, 104 A. S. 42, 78 P. 550 (this section makes §§ 2230, 2234 apply to agent of corporation). As to fraud of agent in procuring ratification of unauthorized act, see Kerr's Cyc. C. C. § 2310 and note pars. 20, 21. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to obligations of trustees, see Kerr's Cyc. C. C. §§ 2228- 2239 and notes. Declarations of agent as evidence of agency. — See Kerr's Cyc. C. C. § 2295 and note pars. 21-24. Fiduciary relations between principal and agent. — See 30 A. S. 785, 786. Instrument binds principal, when. — See Kerr's Cyc. C. C. § 2337 and note. Responsibility of agents to third persons. — See Kerr's Cyc. C. C. § 2343 and note. §2323. WHAT INCLUDED IN AUTHOBITY TO SELL PERSONAL PROPERTY. An authority to sell personal prop- erty includes authority to warrant the title of the principal, and the quality and quantity of the property. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 5 C. A. 388, 390, 90 P. 485 (cited). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Auctioneer's authority from seller. — See Kerr's Cyc. C. C. § 2362 and note. Fraudulent representations as to quantity of land sold. — See Kerr's Cyc. C. C. § 2324 and note par. 2. §2324. WHAT INCLUDED IN AUTHORITY TO SELL REAL PROPERTY. An authority to sell and convey real property includes authority to give the usual covenants of warranty. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. Auctioneer's autliority from seller. — See Kerr's Cyc. C. C. § 2362 and note. Mortgage of property. — See Kerr's Cyc. C. C. § 2319 and note par. 40. 1213 §§2325,2326 CIVIL CODE. [Div.III,Pt.IV. § 2325. AUTHORITY OF GENERAL AGENT TO RECEIVE PRICE OF PROPERTY. A general agent to sell, who is intrusted by the principal with the possession of the thing sold, has authority to receive the price. History: Enacted March 21, 1872.- See Kerr's Cyc. C. C. for 4 pars, annotation. 125 e. 613, 614, 58 P. 153 (construed). As to many miscellaneous matters as to agency generally, see note § 2295, ante. Collecting agents — Duties of. — See Kerr's Cyc. C. C. § 2021 and note. Payment. — See Kerr's Cyc. C. C. § 2319, note par. 44. §2326. AUTHORITY OF SPECIAL AGENT TO RECEIVE PRICE. A special agent to sell has authority to receive the price on delivery of the thing sold, but not afterwards. Hi.story: Enacted March 21, 1872. As to many miscellaneous matters as to agency generally, see note § 2295, ante. Commissioners' note cites 9 A. D. 415. 1214 Tit.IX.ch.I.art.IIL] obligations. § 2330 ARTICLE III. MUTUAL OBLIGATIONS OF PRINCIPALS AND THIRD PERSONS. § 2330. Principal, how afEected by acts of agent within the scope of his autliority. § 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 author- ity. § 2334. For acts done under a merely ostensible aiithority. § 2335. When exclusive credit is given to agent. § 2336. Rights of person who deals with agent without knowl- edge of agency. § 2337. Instrument intended to bind principal does bind him. § 2338. Principal's responsibility for agent's negligence or omis- sion. § 2339. Principal's responsibility for wrongs wilfully commit- ted by the agent. §2330. PRINCIPAL, HOW AFFECTED BY ACTS OF A«E>T WITHIN THE SCOPE OF HIS AUTHORITY. An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transac- tions within such limit, if they had been entered into on his own account, accrue to the principal. Hi.s<«n-y: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 46 pars, annotation. 117 C. 417, 422, 49 P. 559 (construed with §2334); 118 C. 315, 321, 62 A. S. 238, 50 P. 373 (applied); 131 C. 6. 7, 63 P. 61 (applied); 139 C. 593, 594. 73 P. 452 (referred to); 141 C. 699, 705, 75 P. 329 (applied). As to acts agent is forbidden to do, see Kerr's Cyc. C. C. § 2322 subd. 3. As to disregard of principal's orders, wlien justified by unex- pected emergencies, see 6 A. S. 37. As to many miscellaneous matters as to agency generally, see note § 2295, ante. 1215 §§ 2331-2334 CIVIL CODE. [Div.III.Pt.IV. As to rescission of transaction by principal because of the adverse interest of the agent, see 7 A. S. 279. As to secret adverse interest in employment of agent, see 42 A. R. 387. §2331. PRINCIPAL, WHEN BOUND BY INCOMPLETE EXECUTION OF AUTHORITY. 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. History: Enacted March 21, 1872. §2332. NOTICE TO AGENT, WHEN NOTICE TO PRIN- CIPAL. As against a principal, both principal and agent are deemed to have 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 103 C. 624, 629, 37 P. 638; 141 C. 699, 705, 75 P. 329 (applied). As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to notice to principal being notice to agent, see 24 A. S. 228. Notice to one of two or more joint agents is notice to all. — See 102 C. 93, 100, 41 A. S. 172, 36 P. 374, 24 L. 197. §2333. OBLIGATION OF PRINCIPAL WHEN AGENT EXCEEDS HIS AUTHORITY. When an agent exceeds his authority, his principal is bound by his authorized acts so far only as they can be plainly separated from those which are unauthorized. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to liability of principal for unauthorized acts of agent, see 22 A. S. 189, 88 A. S. 779. As to many miscellaneous matters as to agency generally, see note § 2295, ante. § 2334. FOR ACTS DONE UNDER A MERELY OSTENSI- BLE AUTHORITY. A principal is bound by acts of his agent, 1216 Tit.IX,ch.I,art.III.] EXCLUSIVE credit. §§2335,2336 under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof. Historv: Enacted March 21. 1872; amended by Code Com- mission, "acI March 16, 1901, Stats, and Amdts. 1900-1. p. 415, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 616. See Kerr's Cyc. C. C. for 11 pars, annotation. 33 P 441 442 (authority established by ostensible ratifica- tion is" an ostensible authority in sense of this section); 117 C 417 422 49 P. 559 (construed); 130 C. 268, 269, 62 P. 511 (re- ferred to) ;' 143 C. 501, 504, 77 P. 405 (applied with other sections effect of indorsement by ostensible agent). As to many miscellaneous matters as to agency generally. see note § 2295, ante. As to what is ostensible authority, see Kerr's Cyc. C. C. § 2317 and note. §2335. WHEN EXCLUSIVE CREDIT IS GIVEN TO AGENT. If exclusive credit is given to an agent by the per- son dealing with him, his principal is exonerated by payment or other satisfaction made by him to his agent in good faith, before receiving notice of the creditor's election to hold him responsible. Historj-: Enacted March 21. 1872. See Kerr's Cyc. C. C. § 2336 note. As to many miscellaneous matters as to agency generally, see note § 2295, ante. §233(5. RIGHTS OF TEHSON WHO DEALS WITH AGENT WITHOUT KNOWLEDGE OF AGEN( Y. One who deals with an agent without knowing or having reason to believe that the agent acts 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. HiNtory: Knacted March 21, 1S72. See Kerr's Cyc. C. C. for 4 pars, annotation. 1 C. A. 349, 354, 82 P. 265 (applied — effect of purchase by agent without disclosing his principal). Kerr's C. C— 39 1217 §§2337,2338 CIVIL CODE. [Div.III,Pt.IV. As to liability of bank or other depositary or of drawee for taking deposit of agent, fiduciary, or other representative to pay his own debt, see 52 L. 790. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to undisclosed principal's liability on agent's contracts, see 2 L. 811. Same — When credit is given to agent. — See 2 L. 749. §2337. INSTRUMENT INTENDED TO BIND PRINCIPAL DOES BIND HIM. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. §2338. PRINCIPAL'S RESPONSIBILITY FOR AGENT'S NEGLIGENCE OR OMISSION. Unless required by or under the authority of law to employ that particular agent, a prin- cipal 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 wil- ful omission to fulfil the obligations of the principal. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 28 pars, annotation. 52 C. 280, 289 (applied); 118 C. 315, 321, 62 A. S. 238, 50 P. 373 (applied); 119 C. 646, 650, 51 P. 1083 (applied); 138 C. 475, 476 (construed), 478 (construed), 71 P. 516; 6 C. A. 533, 537, 92 P. 648 (principal is bound by acts of agent in transacting business of agency, though such acts are wrongful); 103 F. 841, 843 (applied — liability of telegraph company for money paid out by plaintiff upon fraudulent telegraphic order sent over defendant's wires by employee of defendant). As to agent's responsibility to third persons, see Kerr's Cyc. C. C. § 2343 and note. As to many miscellaneous matters as to agency generally, see note § 2295, ante. 1218 I Tit.IX,ch.I,art.III.] WRONGS BY AGENT. § 2339 §2339. PRINCIPAL'S RESPONSIBILITY FOR WRONGS WILFULLY COMMITTED BY THE AGENT. A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section, unless he has author- ized or ratified them, even though they are committed while the agent is engaged in his service. History: Enacted March 21, 1872. 119 C. 646, 650, 51 P. 1083 (applied). As to criminal and penal liability for act of agent, see 41 L. 650. As to fraudulent or illegal acts of agent, see 1 L. 145. As to liability of principal for misconduct of agent, see 55 A. D. 317; also Kerr's Cyc. C. C. §2338 and note. As to many miscellaneous matters as to agency generally, see note § 2295, ante. 1219 §§ 2342, 2343 CIVIL CODE. [Div.III.Pt.IV. 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. WARRANTY OF AUTHORITY. One who assumes to act as an agent thereby warrants, to all who deal with him in that capacity, that he lias the authority which he assumes. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to measure of damages for breach of agent's warrant of authority, see post § 3318. As to personal liability of agent on contract executed with- out authority, see 50 A. D. 793. As to when contracts executed in name of agents only do not bind them personally, see 57 A. R. 536. § 2343. AGENT'S RESPONSIBILITY TO THIRD PERSONS. 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 person- ally 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. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 151 C. 723, 729, 91 P. 616 (where acts of agent are lawful, and within scope of his authority, principal only, and not agent, is bound by them). 1220 Tit.IX,ch.I,art.IV.] obligation OF AGENT. §§2344,2345 As to agent's responsibility in contracts signed by liini, see 3 L. 397; 12 L. 346. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to personal liability of agent on bills and notes, see 22 A. R. 179. As to personal liability of agent on sealed and unsealed con- tracts, see 26 A. D. 524. As to liability of agent to third person for negligence or nonfeasance, see 28 L. 433. As to personal liability of agents to third persons, see 54 A. R. 233; 22 A. S. 726. As to personal liability of shipmaster, see post § 2382. As to recovery of money in agent's hands for another use, see 5 L. 531. § 2344. OBLIGATION OF AGEXT TO SI KKENDER PKOPEltTY TO THIKI) PERSON. If an agent receives any- thing lor the benefit of his principal, to the possession of which another person is entitled, he must, on demand, sur- render 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 notice from the owner, he delivers it to his prin- cipal. Ili.s4or.v: Enacted March 21, 1872. As to deposit, see Kerr's Cyc. C. C. §§ 1822, 1825, 1826. As to many miscellaneous matters as to agency generally, see note § 2295, ante. §2345. AGENT NOT HAVING ( ATAl ITY TO ( (►NTKA* T. The provisions of this article are subject to the provisions of part one, division first, of this code. Ili.Hlor.v: Enacted March 21. 1S72. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to minors and incapacitated persons, see ante §§ 25. 42. For Commissioners' comment on this section, see Kerr's Cyc. C. § 2345. note. For note on mutual relations of principal and agent, see Kerr's Cyc. C. C. § 2330 note. 1221 §§ 2349, 2350 CIVIL CODE. [Div.III,Pt.IV. ARTICLE V. DELEGATION OF AGENCY. § 2349. Agent's delegation of his powers. § 2350. Agent's unauthorized employment of subagent. § 2351. Subagent rightfully appointed represents principal. §2349. AGENT'S DELEGATION OF HIS POWERS. An agent, unless specially forbidden by his principal to do so, can delegate his powers to another person in any of the fol- lowing cases, and in no others: 1. When the act to be done is purely mechanical; 2. When it is such as the agent cannot himself, and the subagent can lawfully perf6rm; 3. When it is the usage of the place to delegate such powers; or, 4. When such delegation is specially authorized by the principal. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 92 C. 108, 113, 28 P. 57, 58 (applied); 102 C. 320, 322, 36 P. 649 (cited); 110 C. 247, 251, 42 P. 809 (construed); 124 C. 682, 684 (applied), 685 (construed), 686 (construed), 687 (construed), 57 P. 574. As to agent's necessary authority, see Kerr's Cyc. C. C. § 2319 and note. As to many miscellaneous matters as to agency generally, see note § 2295, ante. §2350. AGENT'S UNAUTHORIZED EMPLOYMENT OF SUBAGENT. If an agent employs a subagent witliout author- ity, the former is a principal and the latter his agent, and the principal of the former has no connection with the latter. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to responsibility of subagent to principal, see ante § 2022. 1222 Tit.IX,ch.I,art.V.] SUBAGENT, POWER OF. § 2351 § 2351. SUBAGENT RIGHTFULLY APPOIXTED REPRE- SENTS PRINCIPAL. A subagent, lawfully appointed, repre- sents the principal in like manner with the original agent; and the original agent is not responsible to third persons for the acts of the subagent. History: Enacted March 21, 1872. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to subagents and their relation to principal and to agent appointing them, see 50 A. S. 110. Subagent, lawfully appointed, is liable for his acts to the principal only, and not to ageat who appointed him. — 50 C. 108, 111. 1223 §§ 2355, 2356 CIVIL CODE. [Div.III.Pt.IV. ARTICLE VI. TERMINATION OF AGENCY. § 2355. Termination of agency. § 2356. Same. [Wliere coupled with an interest.] §2355. TERMINATION OF AGENCY. An agency is ter- minated, as to every person liaving notice tliereof, by: 1. Tlae expiration of its term; 2. The extinction of its subject; 3. Tlie death of the agent; 4. His renunciation of the agency; or, 5. The incapacity of the agency [agent] to act as such. History: Enacted March 21, 1872. See 'Kerr's Cyc. C. C for 4 pars, annotation. 69 C. 226, 230, 10 P. 502, 505 (cited); 121 C. 327, 328, 53 P. 702 (applied). As to duty of gratuitous employee, see ante § 1975. As to many miscellaneous matters as to agency generally, see note § 2295, ante. §2356. SAME. [WHERE COUPLED WITH AN INTER- EST.] Unless the power of an agent is coupled with an interest in the subject of tlie agency, it is terminated, as to every person having notice thereof, by: 1. Its revocation by the principal; 2. His death; or, 3. His incapacity to contract. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 70 C. 254, 258 (applied), 260 (construed), 11 P. 706, 707, 708: 75 C. 364, 368, 17 P. 427, 428 (cited); 25 P. 131, 132 (right to revoke authority of agent to procure purchaser of land); 89 C. 251, 255, 26 P. 906, 907 (construed); 92 C. 143, 144, 28 P. 219 (applied); 131 C. 321, 325, 63 P. 479 (applied). As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to validity of agent's acts after death of principal, see 39 A. D. 81. 1224 Tit.IX.ch.II,art.I.] AUCTIONEERS. § 2362 CHAPTER II. PARTICULAR AGENCIES. Article I. Auctioneers, §§ 2362, 2363. II. Factors, §§ 2367-2369. III. Shipmasters and pilots, §§ 2373-238.5. IV. Ships' managers, §§ 2388, 2389. ARTICLE I. AUCTIONEERS. § 2362. Auctioneer's authority from the seller. § 2363. Auctioneer's authority from the bidder. §2362. AUCTIONEER'S AUTHORITY FROM THE SELLER. An auctioneer, in the absence of special author- ization or usage to the contrary, has authoritj- from the seller, only as follows: 1. To sell by public auction to the highest bidder; 2. To sell for cash only, except such articles as are usually sold on credit at auction; 3. To warrant, in like manner with other agents to sell, according to section twenty-three hundred and twenty-three; 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 pur- poses. History: P^nactod March 21, 1S72. See Kerr's Cyc. C. C. for 6 pars, annotation. AUCTIONS AND AL CTIONEEIIS. As to auctioneers, see further Kerr's Cyc. Pol. C. §§ 32S4 et seq. and notes. As to custom and usage, see- Kerr's Cyc. C. C. §§ 2295. 2297, 2319 and notes. 1225 § 2363 CIVIL CODE. [Div.III,Pt.IV. As to many miscellaneous matters as to agents generally, see note § 2295, ante. As to memorandum of sale by, see 13 A. D. 398-400. Auctioneers — Delegation of municipal power as to license of. — See 20 L. 724. Same — Right of conducting sale to make bids. — See 20 L. 503. Same — Right to withdraw property from sale after it has been offered.— See 57 L. 784. Auction in street, as a nuisance, subject to city control. — See 37 L. 678. Competition, agreement by auctioneers to stifle. — See 2 A. D. 138. Delegation of municipal power as to license of auctioneers. — See 20 L. 724. Implied exception in statute as to auctions. — See 25 L. 569. Preventing or checking bids, effect of upon the validity of sales at auction.— See 20 L. 545-553. Rights of purchaser at auction sale. — See 9 L. 558. Sales at auctions by auctioneer, and their effect. — See 96 A. D. 264. §2363. AUCTIONEER'S AUTHORITY FROM THE BID- DER. An auctioneer has authority from a bidder at the auction, as well as from the seller, to bind both by a memo- randum of the contract, as prescribed in the title on sale. History: Enacted March 21, 1872. As to auctioneer's authority generally, see Kerr's Cyc. C. C. P. §§ 3284-3374 and notes. As to entry by auctioneer, see Kerr's Cyc. C. C. § 1798, also 13 A. D. 398-400. As to many miscellaneous matters as to agency generally, see note § 2295, ante. 1226 ^ Tit.IX,ch.II,art.II.] FACTORS, authority. §§ 2367-2369 ARTICLE II. FACTORS. § 2367. Factor, what. § 2368. Actual authority of factor. § 2369. Ostensible authority. § 2367. FACTOR, ^VHAT. A factor is an agent, as defined by section two thousand and twenty-six. History: Enacted March 21, 1872. As to commission of real estate broker, see Kerr's Cyc. C. C. § 2330 and note. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to produce forwarded to commission merchant to be shipped to foreign country, see Kerr's Cyc. C. C. § 2367, note. §2368. ACTUAL AITHOIUTY OF FACTOR. 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 uninsured; 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, mortgage, or barter the same; and, 3. To delegate his authority to his partner or servant, but not to any person in an independent employment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 55 C. 421, 424, 36 A. D. 43 (cited); 61 C. 405 (cited in dis. op. erroneously as §2358); 66 C. 459, 461, 6 P. 61 (applied); 3 C. A. 198, 201, 203 (subd. 2 applied with §2991 — omission of word "no" in opinion makes wrong statement of law, but cor- rect statement is given in 84 P. 778, 780). As to many miscellaneous matters as to agency generally, see note § 2295, ante. §2369. OSTENSIBLE AUTHORITY. A factor has osten- sible authority to deal with the property of his principal as 1227 §§ 2373, 2374 CIVIL CODE. [Div.III.Pt.IV. his own, in transactions with persons not having notice of the actual ownership. Hi.«ttopy: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 52 C. 586, 589 (applied); 55 C. 421, 424, 36 A. R. 43 (applied); 61 C. 405, 420 (applied); 66 C. 459, 460 (applied), 461 (ostensible authority construed), 6 P. 91. As to many miscellaneous matters as to agency generally, see note § 2295, ante. ARTICLE III. SHIPMASTERS AND PILOTS. § 2373. Authority of sliipmaster on belialf of sliip-owner. § 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 sliip. § 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. Sliip-owner's liability for cargo sold, etc. §2373. AUTHOEITY OF SHIPMASTER ON BEHALF OF SHIP-OIVNER. The master of a ship is a general agent for its owner in all matters concerning the same. History: Enacted March 21, 1872. As to duties of ship's master, see Kerr's_ Cyc. C. C. §§ 2034- 2044 and notes. As to many miscellaneous matters as to agency generally, see note § 2295, ante. § 2374. AUTHORITY TO BORROW. 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, and 1228 Tit.IX.ch.II.art.III.] POWER OF. §§ 2375-2377 if neither the owner nor his proper agent for such matters can be consulted without injurious delay. History: Enacted March 21, 1872. §2375. AUTHOKITY ON BEHALF OF OWNERS OF CAKGO. The master of a ship, during a voyage, is a general agent for each of the owners of the cargo, and has author- ity 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 article. Hi-story: Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 251. As to general average and jettison, see Kerr's Cyc. C. C. §§ 2148-2154 and notes. As to many miscellaneous matters as to agency generally, see note § 2295, ante. §2376. POWER TO MAKE COMRACTS. The master of a ship may procui-e all its necessary repairs and supplies, may engage cargo and passengers for carriage, and, in a foreign port, may enter into a charter party; and his con- tracts for these purposes bind the owner to the full amount of the value of the ship and freightage. HlNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. §2377. POWER TO lIVP(nTIECATE. The master of a ship may hypothecate the ship, freightage, and cargo, and sell part of the cargo, in the cases presrcibed by the chapters on bottomry and respondentia, and in no others, except 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 reshlpped it would be entirely lost, or would seriously endanger the interests of its owners. History: Enacted March 21. 1872: amended March 30, 1874. Code Amdts. 1873-4, p. 252. 1229 §§ 2378-2380 CIVIL CODE. [Div.III.Pt.IV. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to power of master to hypothecate ship, see Kerr's Cyc. C. C. §§ 2320, 3017 and note. § 2378. MASTER'S POWER TO SELL SHIP. When a ship, whether foreign or domestic, is seriously injured, or the voyage is otherwise broken up, beyond the possibility of pur- suing it, the master, in case of necessity, may sell the ship without instructions from the owners, unless by the earliest use of ordinarj' means of communication he can inform the owners, and await their instructions. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. § 2379. MASTER'S POW ER TO SELL CARGO. The mas- ter of a ship may sell the cargo, if the voyage is broken up beyond the possibility of pursuing it, and no other ship can be obtained to carry it to its destination, and the sale is otherwise absolutely necessary. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to sale when voyage broken, see Kerr's Cyc. C. C. § 2707 and note. §2380. AUTHORITY TO RAXSOM SHIP. 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 engage- ment will bind the ship, freightage, and cargo. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to expenses of detention being general average, see Kerr's Cyc. C. C. § 2385 note par. 2. As to many miscellaneous matters as to agency generally, see note § 2295, ante. 1230 Tit.IX.ch.II.art.IIL] ABANDONMENT. §§ 2381-2384 § 2381. ABANDONMENT TERMINATES MASTER'S POWER. The power of a master of a ship to bind its owner, or the owners of the cargo, ceases upon the abandonment of the ship and freightage to insurers. History: Enacted March 21, 1872. §2382. PERSONAL LIABILITY FOR CONTRACTS CON- CERNING THE SHIP. Unless otherwise expressly agreed, or unless the contracting parties give exclusive credit to the owner, the master of a ship is personally liable upon his contracts relative thereto, even when the owner is also liable. Hiistory: Enacted Marcli 21, 1872. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to personal liability of master for contracts made by him concerning the vessel, see Kerr's Cyc. C. C. § 2343 and note. § 2383. LIABILITY FOR ACTS OF PERSONS EMPLOYED UPON THE SHIP. The master of a ship is liable to third persons for the acts or negligence of persons employed in its navigation, whether appointed by him or not, to the same extent as the owner of the ship. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. § 2384. RESPONSIBILITY FOR NEGLIGENCE OF PILOT. 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 competent, or is required only to pay compensation to a pilot, whether he employs him or not, he is so responsible to third persons. History: Enacted March 21, 1872. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to responsibility for pilots, see Kerr's Cyc. C. C. §§ 2338, 2383 and notes. 1231 §§ 2385-2389 CIVIL CODE. [Div.III,Pt.IV. §2385. Ship-owner's liability for cargo sold, ETC. 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 destination, of that portion of her cargo which has been sold to enable the master to pay the necessary repairs and supplies of the ship. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 252. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to ransom being a general average, see Kerr's Cyc. C. C. § 2380 note par. 2. ARTICLE IV. SHIPS' MANAGERS. § 2388. What powers manager has. § 2389. What powers he has not. § 2388. WHAT POWERS MANAGER HAS. A ship's man- ager has power to make contracts requisite for the perform- ance of his duties as such; to enter into charter parties, or make contracts for carriage; and to settle for freightage and adjust averages. History: Enacted March 21, 1872. 61 C. 405, 429 (erroneously cited for § 2368). As to many miscellaneous matters as to agency generally, see note § 2295, ante. As to powers of ship's manager, see Kerr's Cyc. C. C. §§ 2020- 2072 and notes. §2389. WHAT POWERS HE HAS NOT. 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. History: Enacted March 21, 1872. 1232 Tit.X,ch.I,art.I.] PARTNERSHIP. § 2395 TITLE X. PARTNERSHIP. Chapter I. Partnership in General, §§2395-2418. II. General Partnership, §§ 2424-2472. III. Special Partnership, §§ 2424-2472. IV. Mining Partnership, §§ 2511-2520. CHAPTER I. PARTNERSHIP IN GENERAL. Article I. What Constitutes a Partnership, §§ 2395-2397. II. Partnership Property, §§ 2401-2406. III. Mutual Obligations of Partners, §§ 2410-2413. IV. Renunciation of Partnership, §§ 2417, 2418. ARTICLE I. WHAT CONSTITUTES A PARTNERSHIP. § 2395. Partnership, what. § 2396. Ship-owners. § 2397. Formation of partnership. §2395. P.VKTNEKSHIl*. >VHAT. Partnership is the asso- ciation of two or more persons, for the purpose of carrying on business together, and dividing its profits between them. History: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 73 pars, annotation. .'54 C. 439. 440 (construed and applied but erroneously cited as 8 2235); 75 C. 566, 569. 17 P. 702, 703 (construed and applied): 81 C. 14, 15. 22 P. 264, 265 (construed and applied): 31 P. 1122, 1123 (what agreement and acts of parties under it, evince partnership); 101. C. 500, 507, 35 P. 1051 (construed and ap- plied): 104 C. 302. 304, 37 P. 1048. 38 P. 109 (construed and ap- plied): 122 C. 3, 12, 54 P. 372 (construed as not applying:): 128 C 1"'0 126 60 P. 689 (cited, construed and applied): 134 C. 338, 1233 § 2395 CIVIL CODE. [Div.III,Pt.IV. 340, 66 P. 309 fconstrued and applied); 31 P. 1122, 1123 (con- strued and applied). PARTNERSHIP — GENERALLY. As to actions brought against an association by its common name. — See Kerr's Cyc. C. C. P. § 388 and note. As to agreement for interest in profits for services, not con- stituting partnership, see 58 A. R. 101; 83 A. D. 104, 105. As to agreement of minors for formation of partnership, see 18 A. E. 601, 605, As to alteration and dissolution of special partnership, see Kerr's Cyc. C. C. § 2507 and note. As to associated carriers when liable as partners, see 72 A. D. 238, 240. As to books of account as evidence of partnership to prove partnership affairs, see 52 L. 833-848. As to burden of proof in establishing partner^iip, see 22 A. S. 762. As to co-operative business associations, see Kerr's Cyc. C. C. § 653b and note. As to crop-sharing contracts, whether constituting partner- ship, see 37 A. R. 609-612; 58 A. R. 101-108. As to declarations by one partner to show partnership and as to declarations generally, see 20 L. 595, 597; 22 A. S. 762. As to declarations made in actions as to partnership, see 20 L. 599. As to declarations of partners after proof of partnership, see Kerr's Cyc. C. C. P. § 1870 subd. 5 and note. As to dormant partners, see 56 A. D. 148; 20 L. 597, 598. Same — Necessity of joining as parties to action. — See 1 L. N. S. 312. As to evidence of general reputation to prove partnership, see 48 A. D. 481; 38 A. R. 568. As to evidence to prove partnership, see 38 A. D. 482; 22 A. S. 761. 762; 13 L. 370. As to existence of partnership, when a question of law, see 43 A. S. 229-232. As to formation of special partnership, see post § 2477 and note. As to general partners in special partnership, liability of, etc., see Kerr's Cyc. C. C. § 2500 and note. As to joint interest in property essential to partnership rela- tion, see 75 A. D. 192. As to liability of partnership to employee for negligence, see Kerr's Cyc. C. C. §§ 1969, 1971 and notes. As to married women, power of to become partners, see 31 A. S. 932-936; 34 A. S. 339, 340. As to non-trading partnership, see 48 A. S. 441. 1234 i Tit.X,ch.I,art.I.] partnership. §2395 As to parol partnerships for dealing in lands, validity of, etc., see 16 L. 745-750. As to participation in losses, profits, etc., generally, when not necessary to partnership agreement, see 30 A. D. 608; 31 A. D. 382; 43 A. D. 436; 75 A. D. 191; 93 A. D. 63; 37 A. R. 609-612; 48 A. R. 256; 56 A. R. 101-108. As to partnership interest, see 17 L. 554. As to partnership liability of stockholders in cases of defect- ive or illegal incorporation, see 17 L. 549, 550. As to partnership property in real estate, see 27 L. 486, 496. As to partnerships in real estate as related to operation of statute of frauds, see 27 L. 477-480. As to powers, rights, and duties of special partners, see Kerr's Cyc. C. C. § 2489 and note. As to unincorporated society being partnership at common law, see 59 A. D. 711. As to real estate as partnership property, see Kerr's Cyc. C. C. § 2406 and note; and 13 A. D. 648; 65 A. D. 300; 98 A. D. 198. " As to religious, social, and benevolent corporations, see Kerr's Cyc. C. C. § 593 and note. As to reputation as evidence of partnership, see 22 A. S. 761. 762. As to statute of frauds in general, see Kerr's Cyc. C. C. § 1624 and note. As to stockholders in corporations, when liable as partners, see 3 A. S. 849, 850. As to voluntary associations, nature of, etc., see 7 A. S. 162- 170. As to what constitutes partnership, see 4 L. 440; 5 L. 590. As to w^hen partnership is formed for purchase and sale of real estate, see 13 A. D. 646-648; 54 A. R. 792-800; 60 A. R. 379, 380; 48 A. S. 62-74; 27 L. 481, 482. As to who are liable as partners, see Kerr's Cyc. C. C. §§ 2444, 2445 and notes. Accommodation papers, power of one partner to bind tlie firm by. — See 31 A. S. 754. Accounting by surviving partner. — See 7 L. 481. Actions — Defenses in action for debt assumed on dissolution of partnership. — See 9 L. N. S. 111. Same — Must be brought by partner or partnership as real party in interest when. — See 64 L. 612. Same — Removal of, because of separalile controversy. — See 5 L. N. S. 87. 98. Same — Right of one partner of dissolving firm to maintain action at law against another for fraud practiced upon disso- lution with respect to assets. — See 6 L. N. S. 263. Same — Right to arrest a partner in civil action or proceed- ing.— See 4 L. N. S. 130. 1235 § 2395 CIVIL CODE. [Div.III,Pt.IV. Action at law between partners — As to g-enerally, see 1 A. C. 834; 6 A. C. 107; 7 A. C. 1140; 8 A. C. 78; 8 A. C. 766; 12 A. D. 649. Same — Appointment of receiver in. — See 10 A. C. 692. Same — Arrest of partner. — See 6 A. C. 107. Same — Same — Right of partner to arrest of co-partner in civil action arising out of partnership transaction. — See 6 A. C. 109. Same — On preliminary partnership agreement. — See 1 A. C. 835. Same — Party to. — See 8 A. C. 78. Same —Right of, after dissolution and accounting, as to single unadjusted items. — See 8 A. C. 768. Actions at law between partners and third persons — Judgment — As to generally, see 8 A. C. 314. Same — Same — Against partner or partnership obligation as bar to suit against co-partner. — See 8 A. C. 315. Same — Parties — As to generally, see 8 A. C. 367. Same — Same — Necessity of joining nominal partner as party plaintiff. — See 8 A. C. 369. Adjudication of bankruptcy of partners, effect of to subject the separate estates of the partners to administration of bank- ruptcy.— See 5 L. N. S. 654. Admissibility of entries in partner's account books by absent or deceased partner. — See 52 L. 561. After death of one of the partners. — See 56 A. D. 517; 79 A. S. 709. Agreement to share profits — Effect of to create a partner- ship. — See 18 L. N. S. 963. Same- — ^Interest in profits for service, does not constitute a partnership. — See 58 A. R. 101; 83 A. D. 104, 105. Same — When do not create. — See 30 A. S. 828. Application of assets to liabilities — As to generally, see 3 A. C. 148. Same — Application of firm property to payment of individual debt by partner without consent of others. — See 3 A. C. 151. Application of partner's deposit on firm debt. — See 23 L. 11. Application of partnership assets, with the consent of all the partners, to the payment of an individual debt of a partner as a voidable preference to the bankruptcy act. — See 17 L. N. S. 1040. Arrest of partner in suit as to partnership affairs. — See 6 A. C. 107, 109. As an artificial person. — See 6 W. & P. 5193. As an association. — See 40 A. R. 465; 6 W. & P. 5193. As determined by intent of parties. — See 6 W. & P. 5194. Assignment for benefit of creditor — As to, generally, see 57 A. D. 505; 48 A. R. 359; 58 A. S. 90; 2 L. 328; 6 L. 569"; 10 L. 521. Same — Executed by one partner only. — See 48 A. R. 359. Same — Power of one partner to make. — See 28 L. 97. 1236 I Tit.X,ch.I,art.I.] PARTNERSHIP. § 2395 Assumption of firm debts. — See 25 L. 274. Attachment — Formation of and transfer of property to part- nership as ground for. — See 30 L. 487. Same — Of individual property of one partner for fraud of another partner. — See 25 L. 645. Same — Right of partnership creditors to question validity of. — See 35 L. 769. Same — Transfers and witlidrawals by partners, as grounds for. — See 30 L. 486. Bank, insolvent — Criminal liability for receiving deposit in. — See 31 L. 125. Bond required of surviving partner. — See 7 L. 794. By estoppel or holding out. — See 10 A. C. 132, 135. By parol to deal in land. — See 16 L. 745. Commercial paper executed by partner in non-trading firm. — See 11 L. 238. Community of interest in property. — See 53 A. D. 513: 63 L. 260: 6 W. & P. 5193. Compensation of partners for services — As to riglit to, see 5 A. C. 659, 664: 6 L. 72; 9 L. 424: 17 L. N. S. 385-416. Same — Waiver of. — See 17 L. N. S. 416. Constitutionality of statute authorizing personal judgment against joint debtors upon personal service upon one or more. — See 50 L. 595. Continuance of business — By surviving partner. — See 5 L. 410: 7 L. 788. Same — For benefit of heirs of deceased partner. — See 56 A. D. 517: 79 A. S. 709. Same — Under provisions of will. — See 7 L. 789. Contract of — As to. — See 3 A. C. 148: 4 A. C. 465. Same — Partnership agreement for purchase and sale of lands as within the statute of frauds. — See 7 A. C. 1142. Same — ^Validity of partnorsliip between husband and wife. — See 4 A. C. 868. Contribution between partners. — See 1 L. 313. Corporators, liabilities as partners when. — See 11 L. 515: 17 L. 549. Creditors of, rights and remedies of. — See 43 A. S. 364. Criminal liability of partnership for receiving deposit in in- solvent liank. — See 31 Ij. 125. Criminal responsibility for sale of intoxicating liquors by partner. — See 16 L. N. S. 786. Croppers, whether occupy relation of. — See 37 A. R. 609. Death of one member, effect of. — See 77 A. D. 114: 86 A. D. 600. Debt of partner, levy on partnership for. — See 4 L. 481. Deceased partner — Carrying on, by representative of. — See 86 A. D. 600: 79 A. S. 709. Same — Contingency of partner's claim for contribution as 1237 § 2395 CIVIL CODE. [Div.III,Pt.IV. affecting- presentation of claim against deceased partner's estate. — See 58 L. 89. Same — Rights of administrator of. — See 7 L. 792. Same — Riglits of estate of law partner in compensation for business unfinished at time of his death. — See 66 L. 821. Same — Rights of deceased partner's widow in, general doctrine as to, see 27 L. 340-353. Deceased partner's widow's rights in, general doctrine as to, see 27 L. 340-353. Declaration of another to show. — See 20 L. 595. Deed conveying realty to partnership in firm name, effect of. —See 4 A. C. 604. Defective or illegal incorporation, partners' liability of stock- holders. — See 17 L. 549. Definition of. — See 10 A. C. 132; 16 A. R. 192; 25 A. R. 607; 57 A. R. 552; 16 A. S. 572; 30 A. S. 97; 33 A. S. 97; 34 A. S. 334; 60 A. S. 842; 97 A. S. 335; 2 L. 343; 3 L. 430; 11 L. 149; 18 L. 515; 22 L. 276; 36 L. 282; 41 L. 362; 53 L. 904; 61 L. 756; 16 L. ed. 249; 36 L. ed. 835; 18 L. N. S. 967; 6 W. & P. 5191. Demand on firm for payment of note. — See 36 L. 704. Discharge of partnership liability in individual bankruptcy proceedings. — See 69 L. 771. Dissolution of — And accounting, right of action at law be- tween partners, as to single unadjusted items. — See 8 A. C. 768. Same— By a decree.— See 4 A. C. 459; 10 A. C. 692; 98 A. D. 260. Same — Causes sufficient for. — See 69 A. S. 410. Same — Exemption of partnership debts on — As to generally, see 9 L. N. S. 49-118. Same — Same — Defenses in action for. — See 9 L. N. S. 111. Same — How affected — By death of partner. — See 10 A. C. 956. Same — Same — By decree of court. — See 4 A. C. 459; 10 A. C. 692; 98 A. D. 260. Same — Same — Same — Fraud in formation of partnership as ground for dissolution of. — See 10 A. C. 695. Same — Same — Same — Misconduct of parties as ground for dis- solution. — See 4 A. C. 460. Same — Same — By operation of law. — See 4 A. C. 601; 10 A. C. 955. Same — Same — El¥ect of death of partner on judgment in favor of partnership. — See 10 A. C. 956. Same — Liability under continuing guarantee running to, for goods sold for credits extended after a change in the firm. — See 14 L. N. S. 1231. Same — Necessity of actual notice of retirement o£ member of firm to relieve retiring member from liability or obligation re- newed after his retirement. — See 4 L. N. S. 800. Same — Notice of, when required and what sufficient. — See 26 A. D. 290. 1238 Tit.X,ch.I,art.I.] partnership. § 2395 Same — Powers, rights, remedies, and liabilities of partners after.— See 40 A. S. 561. Same — Power to revive firm debts after. — See 15 L. 656. Same — Right to compensation. — See 5 A. C. 659, 664; 6 L. 72; 9 L. 424; 17 L. N. S. 385-416. Same — -Rights and liabilities as to estate of decedent. — See 5 A. C. 659. Same — Rights in respect to good-will on. — See 3 L. 770. Same — Rights of one partner to maintain action at law against another for fraud practiced in, with respect to assets. — See 6 L. N. S. 263. Same — Rights, powers and liabilities after dissolution — Liquidating partners. — See 5 A. C. 845. Same — Same — Surviving partner. — See 4 A. C. 177; 4 A. C. 465; 5 A. C. 659; 6 A. C. 33. Same — Same — Same — Liability of surviving partner for inter- est on share of deceased partner. — See 4 A. C. 180. Same — Same — Same — Power of surviving partner to sell or mortgage firm assets. — See 4 A. C. 472. Same — Specific performance of contract to give security to one partner against liabilities of firm.— See 6 L. N. S. 591. Does the fact that a name is signed to a bill or note below the signature of another obligor is that of a partnership raise a presumption that it is a surety only. — See 10 L. N. S. 426. Dormant or special partners — As to generally, see 56 A. D. 148, 20 L. 597, 598. Same — Necessity of joining as parties to action. — See 1 L. 312. Dormant partners, who are and their powers and liabilities. — See 56 A. D. 147, Duties of surviving partner. — See 7 L. 790. Same — When he is also executor of deceased partner. — See 7 L. 793. Engaging in unlawful business, liability of. — See 51 L. 495. Entries in account books by absent or deceased partner, admissibility of in evidence. — See 52 L. 561. Equality of contribution. — See 6 W. & P. 5194. Equitable rule as to partnership assets. — See 7 L. 791. Evidence of — As to generally, see 4 A. C. 601; 4 A. C. 814, 817; 10 A. C. 132. Same — Admissibility of entries in partner's account books by absent or deceased partner. — See 52 L. 561. Executed agreement essential to. — See 6 W. & P. 5194. Execution sale of property of, injunction against. — See 30 L. 105. Exemption — By partnership of individual debts of partners — General rule as to, see 29 L. 681-694. Same — From execution which may be claimed from property of.— See 27 A. R. 246; 1 A. S. 593. 1239 § 2395 CIVIL CODE. [Div.III,Pt.IV. Same — Of debts on dissolution of partnersliip. — See 9 L. N. S. 49-118. Existence of, what agreements establish. — See 43 A. S. 229. False imprisonment by act of co-partner, liability of partner to action for. — See 3 L. N. S. 221. Firm debt — Assumption of. — 'See 25 L. 274. Firm name, statutes as to continuing. — See 15 L. 466. For definite period, power of one partner to dissolve. — See 77 A. S. 319. For illegal purposes, accounting between members of, when compellable. — See 99 A. S. 326. For what business, and how proved. — See 13 L. 370. Formal requisites of agreement. — See 6 W. & P. 5195. Formation of and transfer of property to, as ground of attach- ment. — See 30 L. 487. Garnishment of uncertain amount due from one partner to the other.— See 59 L. 377. General assignment, right of surviving partner to make. — See 6 L. 570. General reputation to prove existence of partnership — See 4 A. C. 718. Good-will — Name as part of. — See 15 L. 462. Same — Of a partnership and the means of making it product- ive on the death of a member or the dissolution of the firm. — See 96 A. S. 610. Same — Right of partners after sale and purchase of. — See 3 L. 770. Guaranty running to firm, liability for goods sold or credits extended after a change in the firm. — See 14 L. N. S. 1231. How proved.— See 13 L. 370. Husband and wife — Right to form. — See 9 L. 593; 16 L. 526. Same- — Validity of partnership between. — See 4 A. C. 868. Individual debt — Application by one partner without the con- sent of the others of firm property to payment of. — See 3 A. C. 151. Same — Note for, what necessary to recovery upon. — See 39 A. R. 293. Same — Of member of, right of partnership, as against firm creditors, to sell or mortgage firm property, to discharge or secure.— See 1 L. N. S. 650; 2 L. N. S. 256. Infant as partner — As to generally, see 18 A. S. 601. Same — Agreement of to form partnership. — See 18 A. S. 601, 605. Same — Required to do equity.^See 1 L. 863. Injunction — Against execution sale of property of. — See 30 L. 105. Same — Against judgments by confession against partner. — See 30 L. 240. 1240 Ji Tit.X,ch.I,art.I.] PARTNERSHIP. § 2395 In real property.-See 13 A. D. 646; 27 A. R. 270: 54 A. R. 792; 48 A. S. 62. Interest— In partnership's accounting, allowance of.— See 9 ■game— When partner may be charged with.— See 45 A. D- 518- Intoxicating liquors, criminal responsibility for sale of by partner.— See 16 L. N. S. 786. . ,. o.« M Joint and several liability of partnership for torts.— See 51 "^■/oint stock company-As a.-See 4 A. C. 865; 6 W. & P. 5195. Same— Distinguished from.— See 4 W. & P. 3816. Judgment— Against joint debtors upon personal service^ upon one or more, constitutionality of statute auth-orizmg.— See 50 L 595 ■game- Against on service of process on one member only.— See 44 A. D. 570. c ri t Same— Aagainst partners, who may have set aside.— See 54 L.. '^Same— Same— Injunction against entered on confession.— See 30 L. 240. ^. . . Same— By confessions against partners, injunction against.— See 30 L. 240. Land— By parol to deal in.— See 16 L. 745. Same— Partnership agreement for purchase and sale of, as within the statute of frauds.— See 7 A. C. 1142. game — To speculate in. — See 8 L. 657. game— Whether may become partnership property without a writing.— See 98 A. D. 197; 27 A. R. 270. Law partnership— Deceased partner, rights of estate of in compensation for business unfinished at time of his death.— See 66 L. 821. ^ , j,^^ Levy on assets of under a writ against one partner onl>.— See 57 A. S. 436. ^ ^ c! „ .c Levy on partnership property for debt of partner.— bee ^6 Liability— Of corporators as partners.— See 11 L. 515; 17 L. 549. Same— Of one held out as a partner.— See 22 A. S. 757. Same— Of one partner for the tortious acts of another.— See R7 A S 32 Same— Of partner— As to third persons— Nature and termina- tion of.— See 1 A. C. 724; 8 A. C. 78; 9 A. C. 507. Same— Same— Criminal liability for receiving deposit in in- solvent bank.— See 31 L. 125. , a n Same— Same— For future acts— As to generally, see 4 A. C. 865; 9 A. C. 240. . * c .« Same— Same-For libel published wilh-.ut his consent.-See 26 L. 779. Same— Same— Joint and several.— See 51 L. 49d. 1241 § 2395 CIVIL CODE. [Div.III.Pt.IV. Same — Same — Relation of retiring partner as sureties upon dissolution of partnership. — See 1 A. C. 725. Same — Same — Sufficiency of notice of dissolution to former patrons of partnership. — See 9 A. C. 243. Same — Same — To action for false imprisonment for act of co-partner.— See 3 L. N. S. 221. Same — Of partnership for torts — As to, generally, see 51 L. 463-494. Same — Same — Engaging in unlawful business. — See 51 L. 495. Limited partnerships — Exist only under warrant of statute. — See 2 L. 43. Same — Formation of. — See 8 L. 712. Same — Liability of members of. — See 3 L. 503. Same — Removal of cause by. — See 5 L. 503. Loss of profits as elements of damages for breach of contract relating to. — See 53 L. 81. Married woman, whether may be a partner. — See 31 A. S. 934; 34 A. S. 339, 340. Mining claim, right of partner to locate. — See 7 L. N. S. 817. Misapplication of property by partner to the payment of his personal debt. — See 7 A. S. 377. Misappropriation of property of by one of the partners. — See 8 A. D. 297. Misconduct, forfeiture of right to compensation by. — See 17 L. N. S. 415. Name as part of good-will. — See 15 L. 462. Name of the partnership.— See 10 A. C. 810. Same — "What is fictitious partnership name. — See 10 A. C. 812. Non-resident partners, bound by judgment when. — See 1 L. 312. Non-trading firm — Commercial paper executed by partner in. —See 11 L. 238. Note or other commercial paper — Of individual partner as pay- ment of firm debt, which he had not previously assumed. — See 15 L. 1019. Same — Power of one partner to bind firm by, under seal. — See 17 L. N. S. 969. Same — Signed by the name of a partnership below another signature, does it raise the presuniption that it is a surety only. —See 10 L. N. S. 426. Notice of dissolution of partnership, sufficiency of to former patrons. — See 9 A. C. 243. Notice of retirement of member of firm, necessity of actual, to relieve retiring member from liability on obligation renewed after his retirement. — See 4 L. N. S. 800. Participation in profits — For services, not constuting a part- nership. — See 58 A. R. 101; 83 A. D. 104, 105. Same — In order to collect debts, effect of. — See 18 L. N. S. 1062. 1242 I Tit.X,ch.I,art.I.] PARTNERSHIP. § 2395 Same — When does and when does not create. — See 49 A. R. 255; 58 A. R. 99. Parties to an action on a partnership agreement. — See 8 A. C. 78. Partner — Or partnership as tlie real party in interest by whom action must be brought. — See 64 L. 612. Same — Right of after sale and purchase of good-will. — See 3 L. 770. Same — Right of as affected by sale of trade-mark. — See 1 L. N. S. 722. Same — Right of to locate mining claim. — See 7 L. N. S. 817. Partners' note for firm debt, effect of upon the firm liability. — See 1 A. D. 3. Partnership assets, equitable rule as to. — See 7 L. 791. Partnership books of account — As evidence. — See 52 L. 833. Same — Entries made by absent or deceased partners, admis- sibility of. — See 52 L. 561. Partnership debts — Agreement to assume, right of action by third persons on. — See 25 L. 274. Same — Property of to be applied to payment of. — See 6 L. 740. Partnership earnings of ship, admiralty jurisdiction. — See 66 L. 235. Partnersbip liability of stockholders in case of defect or illegal incorporation. — See 17 L. 549. Partnership real estate — Power of one partner to assign for benefit of creditors. — See 28 L. 97. Same — Right to purchase one partner's interest in real prop- erty, belonging to partnership without consent of other part- ners.— See 18 L. N. S. 1180. Same — Validity of deed to. — See 1 L. N. S. 157. Same — Validity of parol to deal in real property. — See 4 L. N. S. 427. Same — What constitutes partnership to deal in. — See 5 L. N. S. 503. Partnership to deal in real estate — What constitutes. — See 5 L. N. S. 503. Same — Validity of parol. — See 4 L. N. S. 427. Person as to whom ostensible partner is estopped to deny partnership relation. — See 10 A. C. 135. Power of one partner — To assign partnership real estate for benefit of creditors. — See 28 L. 97. Same — To authorize an appearance for the firm. — See 13 A. D. 726. Same — To bind firm by promissory note or bill of exchange under seal. — See 17 L. N. S. 969. Same — To limit the authority of another. — See 88 A. S. 322. Same — To obtain loan on credit of the firm. — See 48 A. S. 438. 1243 § 2395 CIVIL CODE. [Div.III.Pt.IV. Same — To sell all the goods of the firm. — See 30 A. D. 290. Power of partners to bind each other. — See 4 L. 241. Preference — As between partnership creditors of the individ- ual partners. — See 35 A. R. 306. Same — Given by to one creditor to the exclusion of all others. —See 30 A. R. 533. Same — Of firm creditor by a partner out of his own property as an act of bankruptcy by the firm. — See 16 L. N. S. 656. Preliminary partnership agreement, action between partners on. — See 1 A. C. S35. Priority of firm creditors as against levy for individual debtor. — See 46 L. 494. Proof of by general reputation. — See 38 A. D. 481. Property of — As to generally, see 4 A. C. 601; 9 A. C. 229. Same — Effect of deed conveying realty to partnership in firm name. — See 4 A. C. 604. Same— Situs of interest of deceased partner in partnership for purposes of taxation. — See 9 A. C. 692. Same — To be applied to partnership debts. — See 6 L. 740. Purchase by one of the partners of property of at a forced sale. — See 39 A. R. 461. Qualification and limits of the profit sharing rule. — See 18 L. N. S. 1009. Real estate considered as partnership property when — Gen- eral doctrine as to, see 27 L. 449-496. Realty held by, deceased partner's interest in. — See 27 A. D. 454. Receiver for — Appointment on in suits relative to the part- nership. — See 10 A. C. 692. Same — When should be appointed. — See 72 A. S. 80. Relation of retiring party as surety upon dissolution of part- nership. — See 1 A. C. 625. Removal of action, because of separable controversy, in action relating to partnership. — See 5 L. N. S. 89, 98. Right and position of creditors, purchasers, and other third partners in partnership property, as to, generally, see 28 L. 161-174. Right of partner to locate mining claim. — See 7 L. N. S. 817. Right of partners after sale and purchase of good-will. — See 3 L. 770. Right of partners to buy from and sell to each other. — See 3 L. 770. Right of partnership creditors to question validity of attach- ment. — See 35 L. 769. Right of wife to sue firm to which husband belongs. — See 6 L. 507. Right to arrest partner in civil action or proceeding. — See 4 L. N. S. 130. 1244 Tit.X,ch.I,art.I.] PARTNERSHIP. § 2395 Right to purchase one partner's interest in real property without consent of the other partners. — See 18 L. N. S. 1180. Rights and liabilities as between partners — As to, generalb', see 1 L. 313; 1 L. 863; 3 L. 770; 6 L. 72; 9 L. 424, 425; 11 L. 589; 18 L. 482; 27 L>. 820; 53 L. 81. Same — Right of subrogation of partner to pay his firm debts. — See 54 L. 614-621. Rights and liabilities of partners in sale of liquors — As to generally, see 8 A. C. 275: 10 A. C. 910. Same — Liability of partner for illegal sale of liquor by co- partner. — See 8 A. C. 276. Same — Riglits of partners under liquor license. — See 10 A. C. 910. Rights and powers of surviving partner. — See 6 L. 5G9; 7 L. 481; 7 L. 788. Rights and preferences of creditors of. — See 6 L. 740. Rights and remedies of surviving partner. — See 7 L. 792. Rights of action by third person on agreement to assume partnership debts. — See 25 L. 274. Rights of administrator of deceased partner. — See 7 L. 792. Riglits of estate of law partner in compensation for business unfinished at time of his death. — See 66 L. 821. Rights of partner as affected by sale of trade-mark. — See 1 L. N. S. 722. Rights of partners inter se in partnership property, as to generally, see 28 L. 86-109. Rights of partnership, as against firm creditors, to sell or mortgage firm property, to discharge or secure individual debt of one of its members. — See 2 K N. S. 256. Rights of surviving partner to make general assignment. — See 6 L. 570. Separate property of partners, liability of for partnership debts. — See 18 A. D. 280. Set-off in bankruptcy cases. — See 55 L. 41, 69. Share of illegal profits, liability. — See 11 L. 589. Ship, partnership earnings of admiralty jurisdiction. — See 66 L. 235. Situs of interest of deceased partner in partnership for pur- poses of taxation. — See 9 A. C. 692. Special partners, necessity of joining as parties to action. — See 1 L. 312. Specific performance of contract to give security to one part- ner against liabilities of firm. — See 6 L. N. S. 590. Statement of accounts between partners. — See 27 L. 820. Statute of frauds, partnership agreements for purchase and sale of land as being witliin. — See 7 A. C. 1142. Statutes as to continuing firm name. — See 15 L. 466. Stockliolders, partnership liability of in case of defective or illegal incorporation. — See 17 L. 549. 1245 § 2396 CIVIL CODE. [Div.III.Pt.IV. Subrogation, right of partner who pays firm debts to. — See 54 L. 614-621. Sufficiency of notice of dissolution to former patrons of part- nership. — See 9 A. C. 243. Surviving partner — Accounting by. — See 7 L. 481. Same — Bond required of. — See 7 L. 794. Same — Continuance of business by. — See 5 L. 410; 7 L. 788. Same — Duties of. — See 7 L. 790. Same — Position and power of as to partnership property. — See 28 L.. 129-137. Same — Powers and duties of. — See 65 A. D. 295. Same — Rights and powers of. — See 6 L. 569; 7 L. 481; 7 L. 788. Same — Rights and remedies of. — See 7 L. 792. Same — Right to make a general assignment. — See 6 L. 570. Surviving partner's right to compensation. — See 112 A. S. 843. Taxation, situs of interest of deceased partner in partnership for purposes of. — See 9 A. C. 692. Trade-mark, riglits of partners as affected by sale of. — See 1 L. N. S. 722. Transfer by one partner of his interest in insured property to other members of the firm, effect of as a prohibited change or alienation. — See 18 L. 482. Transfers and withdrawals by partners, as ground of attach- ment. — See 30 L. 486. Use of property of to discharge obligation of one partner. — See 1 L. N. S. 650; 2 L. N. S. 256. Waiver of compensation. — See 17 L. 416. Warranty as inducement to co-partner to enter into a con- tract as a promise to indemnify. — See 15 L. N. S. 1151. What constitutes.— See 115 A. S. 400; 8 L. 657; 18 L. N. S. 967-1103. What is a fictitious name. — See 10 A. C. 812. When associations held to be partnerships. — See 3 L. 430. Who may have judgment against partner set aside. — See 54 L. 763. Wife — Power of to enter into partnership contract. — See 2 L. 343. Same — Right of to sue firm to which husband belongs. — See 6 L. 507. §2396. SHIP-OWNERS. Part owners of a ship do not, by simply using it in a joint enterprise, become partners as to the ship. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 75 C. 566, 568, 569, 17 P. 702, 703 (applied, cited, construed). 1246 Tit.X,ch.I,art.I.] foundation of. § 2397 As to actions for accounting in general, see Kerr's Cyc. C. C. § 2412 and note. As to liabilities of part owners of vessels, see 88 A. D. 364-368. As to liability of ship-owners, see 13 A. D. 320. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to partnership between co-owners of vessels, see 90 A. S. 361-365. §2397. FORMATION OF PARTNERSHIP. A partnership can be formed onlj^ by the consent of all the parties thereto, and therefore no new partner can be admitted into a part- nership without the consent of every existing member thereof. History: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 11 pars, annotation. As to assumption of firm debt by incoming partner, see 25 L. 274, 275. As to lands owned by partner prior to partnership and posi- tion of incoming partner, see 27 L. 485, 486. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to power of partner in mining partnership to convey inter- est without dissolving partnership, see Kerr's Cyc. C. C. § 2516 and note. As to right of action upon indebtedness assumed by incom- ing partner, see 25 L. 274. 1247 §§ 2401, 2402 CIVIL CODE. [Div.III,Pt.IV. ARTICLE II. PARTNERSHIP PROPERTY. § 2401. Partnership property, what. § 2402. Partner's interest in partnership property. § 2403. Partner's sliare in profits and losses. § 2404. vVlicn division of losses implied. § 2405. Partner may require application of partnership prop- erty to payment of debts. § 2406. What property is partnership property by presumption. §2401. PARTNERSHIP PROPERTY, WHAT. The prop- erty of a partnership consists of all that is contributed to the common stock at the formation of the partnership, and all that is subsequently acquired thereby. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 104 C. 302, 305, 37 P. 1048, 38 P. 109 (construed and applied). As to exemptions of property from execution, see 1 A. S. 593-595. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to moneys loaned by partner to co-partner not being partnership transaction, see Kerr's Cyc. C. C. § 2412 and note. As to partnership interests, interests in common, etc., see Kerr's Cyc. C. C. § 682 and note. As to pledge of partnership securities, see Kerr's Cyc. C. C. §§ 2986, 2987. As to property claimed as homestead, see 70 A. S. 114, 115. As to rights of purchaser of real property owned by part- nership, but standing in name of one partner, as against equities of surviving partner, see Kerr's Cyc. C. C. § 2450 and note. As to trust funds of partnership, see 32 A. S. 129, 130, 67 A. S. 44-46. §2402. PARTNER'S INTEREST IN PARTNERSHIP PROPERTY. The interest of each member of a partnership extends to every portion of its property. History: Enacted March 21, 1872. 1248 Tit.X,ch.I,art.II.] PROFITS and loss. §§ 2403, 2404 See Kerr's Cyc. C. C. for 5 pars, annotation. 104 C. 302, 305, 37 P. 1048, 38 P. 109 (construed and applied with other sections); 123 C. 482, 487, 56 P. 251; 147 C. 546, 549, 82 P. 196 (cited). As to interest of each member of partnership, liability, etc., see 57 A. S. 436-444. As to lien of mining partner extending to partnership prop- erty and existing in favor of all partners, whether in actual possession or not, see Kerr's Cyc. C. C. § 2514 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to property qualifications of juror, see Kerr's Cyc. C. C. P. § 205 and note. §2403. PARTNER'S SHARE IX PROFITS A>D LOSSES. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 56 C. 446, 450 (construed and applied); 104 C. 302, 305, 37 P. 1048, 38 P. 109 (construed and applied with other sections). As to actions for accounting between partners and as to duty to account, see Kerr's Cyc. C. C. § 2412 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to profits and losses in mining partnerships, see Kerr's Cyc. C. C. § 2513 and note. As to profit made after dissolution, see 40 A. S. 571. §2404. WHEN DIVISION OF LOSSES IMPLIED. An agreement to divide tlie ])rofits of a business implies an agreement for a corresponding division of its losses, unless it is otherwise expressly stipulated. History: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 81 C. 14, 15, 22 P. 264, 265 (construed and applied); 89 C. 526, 534, 26 P. 1087, 1089 (construed and applied); 122 C. 3, 12. 54 P. 372 (construed as not applying). Kerr's C. C. — 40 1249 §§ 2405, 2406 CIVIL CODE. [Div.III.Pt.IV. As to lease of land providing for sharing- of profits not creat- ing partnersliip, see Kerr's Cyc. C. C. § 2395 and note par. 25. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2405. PARTNER MAY REQUIRE APPLICATION^ OF PARTNERSHIP PROPERTY TO PAYMENT OF DEBTS. Each member of a partnership may require its property to be app3-'°i to the discharge of its debts, and has a lien upon the shares of the other partners for this purpose, and for the payment of the general balance if any due to him. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 19 pars, annotation. 58 C. 449, 456 (construed and applied); 48 P. 222 (construed and applied). As to attachment of partnership property by creditors of individual partners, see 43 A. S. 371, 372; 57 A. S. 442. As to contribution between partners, see 1 L. 312, 313. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to preference in favor of partnership creditors, see 43 A. S. 371; 58 A. S. 91, 92. As to preference of partnership creditors over individual creditors, see 28 L. 165-169. As to real property of partnership, right of creditor to pur- sue remedies against, see 43 A. S. 377-380. As to rights of judgment creditors against partnership prop- erty, see 28 L. 170-172. As to separate property of partner, proceedings against, etc., see 43 A. S. 365, 368. As to subrogation against copartner by partner who pays a firm debt, see 54 L. 614-622. §2406. WHAT PROPERTY IS PARTNERSHIP PROP- ERTY BY PRESUMPTION. Property, whether real or per- sonal, acquired with partnership funds, is- presumed to be partnership property. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 415, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 7 pars, annotation. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. 1250 Tit.X,ch.I,art.III.] mutual obligations. § 2410 As to parol agreement to deal In real estate, see 48 A. S. 65. As to partnership real estate, rights of partners inter se therein, etc., see 28 L. 86-108. As to real estate acquired bj' partners before commencement of partnership, see 48 A. S. 68. As to real estate, application thereof to partnership debts, etc., see ante § 2405 and note par. 13, and 98 A. D. 198; 27 A. R. 270; 54 A. R. 798; 48 A. S. 67-75. As to resulting trust arising in favor of partnership where real estate is purchased with partnership funds, see Kerr's Cyc. C. C. § 853 and note par. 55. 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. §r2413. No compensation for services to firm. § 2410. PARTNERS TRUSTEES FOR EACH OTHER. The relations of partners are confidential. They are trustees for each other within the meaning of chapter one of the title on trusts, and their obligations as such trustees are defined by that chapter. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 48 P. 1086, 1087 (construed and applied with §2411). As to confidential relations and trusts in general, see Kerr's Cyc. C. C. §§ 2215, 2224 and notes. As to confidential relations of partners, see ante § 2219 and note post § 2411 and note; also 100 A. D. 636; 39 A. R. 461, 463. As to involuntary trustee of property transferred in viola- tion of trust, see Kerr's Cyc. C. C. § 2243 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to partner availing himself of confidential relation witli copartner in purcliasing real property, see Kerr's Cyc. C. C. § 2223 and note par. 17, § 2406 and note pars. 2-7. As to resulting trust, when arises in favor of partners, see Kerr's Cyc. C. C. § 2224 and note pars. 95-97. As to trust, when not created as between partners by deed absolute, see Kerr's Cyc. C. C. § 2224, par. 106. As to trustee's duty not to use trust property for individual profit, see Kerr's Cyc. C. C. § 2229 and note. 1251 §§2411,2412 CIVIL CODE. [Div.III,Pt.IV. §2411. GOOD FAITH TO BE OBSERVED BETWEEN THEM. 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 misrepresentation, concealment, threat, or adverse pressure of any kind. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 48 P. 1086, 1087 (construed and applied); 122 C. 456, 460, 55 P. 246 (construed and applied); 136 C. 460, 463, 69 P. 83 (con- strued and applied); 4 C. A. 438, 442, 88 P. 510 (partners will not be allowed to obtain any advantage over each other by mis- representation or concealment). As to contracts between partners in anticipation of dissolu- tion of partnership, agreeing- that none of them will carry on similar business within specified place, etc., see Kerr's Cyc. C. C. § 1675 and note. As to contracts of partners with copartner in restraint of carrying on similar business, see Kerr's Cyc. C. C. § 1674 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2412. MUTUAL LIABILITY OF PARTNERS TO AC- COUNT. 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 expends for the benefit thereof, and to be indemni- fied thereby for all losses and risks which he necessarily incurs on its behalf. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 26 pars, annotation. 78 C. 225, 231, 20 P. 547, 550 (construed and applied). As to accounting following dissolution of partnership, see Kerr's Cyc. C. C. § 2450 and note. As to allowance or disallowance of interest in partnersliip accounting, see 9 L. 425. As to duty and obligations of trustees in general, see Kerr's Cyc. C. C. §§ 2228-2239 and notes. As to duty of partner to act in highest good faith towards 1252 Tit.X,ch.I,art.III.] COMPENSATION. § 2413 copartner, and as to continuance of this duty until jli^BSolution and liquidation of partnership affairs, see Kerr s Cyc. C. C. S 2411 and note par. 4. As to general partner as agent for partnership, authority of, etc see Kerr's Cyc. C. C. § 2429 and note. As to inability of surviving partner to collect from general astets Of partne^r-s estate debt due by decedent to Partne-liip. without first ascertaining partnership assets, see Kerr s Cj c. C C P. § 1585 and note. . As to many miscellaneous matters as to partnership, gener- ally, see note § 2395, ante. As to mining partnerships in general, see Kerr s Cj c. C. C. §5 2511 et seq. and notes. ^ -^ ^f ^nrt As to right of partner to make investments outside of pait- nership affairs, see Kerr's Cyc. C. C. § 2411 and note. Ts to right of representatives of deceased partner to compel executor of last surviving partner to account upon dissolution of partnership, by reason of death of partner, see Kerr's Cyc. C. C. § 2450 and note. As to share of profits illegally acquired, generally, see 11 L. As to statements of account between partners, see 27 L. 820. As to statute of limitations in suits for accounting between partners, see 40 A. S. 574-576. r- r- P As to venue for action for accounting, see Kerr s Cyc. C. C. f. § 395 and note. §2413. m COMPENSATION FOR SERVICES TO FIRM. A partner is not entitled to any compensation for services rendered by him to the partnership. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. fs C 466, 4n. 58 A. R. 17. 9 P. 731, 734 (construed and applied); 135 C. 561, 564, 67 P. 1054 (construed and applied). AS to compensation for services to firm, when partner entitled to, etc., see 6 L. 72; 9 L. 424, 425. ks to compensation of surviving partner, generally, see 40 ^'as to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. 1253 §§ 2417, 2418 CIVIL. CODE. [Div.III.Pt.IV. ARTICLE IV. RENUNCIATION OF PARTNERSHIP. § 2417. Renunciation of future profits exonerates from liability. § 2418. Effect of renunciation. §2417. RENUNCIATION OF FUTURE PROFITS EXON- ERATES FROM LIABILITY. A partner may exonerate him- self from all future liability to a third person, on account of the partnership, by renouncing, in good faith, all partici- pation in its future profits, and giving notice to such third person, and to his own copartners, that he has made such renunciation, and that, so far as may be in his power, he dissolves the partnership and does not intend to be liable on account thereof for the future. History: Enacted March 21, 1872. As to judgment of dissolution, and when general partner entitled to, see Kerr's Cyc. C. C. § 2452 and note. As to liability of general partner, how long continues, see Kerr's Cyc. C. C. § 2453 and note. As to liquidation of general partnership, see Kerr's Cyc. C. C. §§ 2458-2462 and notes. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to notice of termination of liability, see Kerr's Cyc. C. C. § 2453 and note. As to partial dissolution of partnership, see Kerr's Cyc. C. C. § 2451 and note. As to partnership, duration of, see Kerr's Cyc. C. C. § 2449 and note. As to total dissolution of partnership, see Kerr's .Cyc. C. C. § 2450 and note. §2418. EFFECT OF RENUNCIATION. After a partner has given notice of his renunciation of the partnership, he cannot claim any of its subsequent profits, and his copart- ners may proceed to dissolve the partnership. History: Enacted March 21, 1872. As to dissolution of partnership, notice of, etc., see Kerr's Cyc. C. C. § 2453 and note. 1254 Tit.X,cll.II,art.I.] GENERAL. § 2424 As to many miscellaneous matters as to partnership gener- lly, see note § 2395, ante. As to notice of renunciat C. C. §§ 2417, 2453 and notes. nllv see note ? 2395, ante. , _ 1; to notice of renunciation, effect of. etc.. see Kerr's Cyc. CHAPTER II. GENERAL PARTNERSHIP. Article I. What 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, §§ 2458-2462. VII. * Of the Use of Fictitious Names, §§ 2466-2472. ARTICLE I. WHAT IS A GENERAL PARTNERSHIP. § 2424. General partnership, what. §2424. GENERAL PARTNERSHIP, WHAT. Every part- nership that is not formed in accordance with the law con- cerning special or mining partnerships, and every special partnership, so far only as the general partners are con- cerned, is a general partnership. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 74 C. 418, 419, 16 P. 196. As to certificates designating names of partners, etc., see Kerr's Cyc. C. C. |§ 2466-2471 and notes. ,«-.. K.^rr's As to general partners, powers and authority of. see Ktrr s Cyc. C. C. §S 2428-2431 and notes. , n .. n r ii "44'^ As to liability of general partners, see Kerr s C>c. C. C. S§ -"-. 24 45 and notes. T.-„^,..a As to limitations of authority of general partner, sec Kerr s Cvc C. C. § 2430 and note. As to liquidation of general partnership following dissolution, see K.^rr's Cyc. C. C. §§ 2458-2462 and notes. 1255 §2424 CIVIL CODE. [Div.III.Pt.IV. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to mining partnership, see Kerr's Cyc. C. C. §§ 2511, 2520 and notes. As to mutual obligations of general partners, see Kerr's Cyc. C. C. §§ 2435-2438 and notes. As to special matters, liability of, see Kerr's Cyc. C. C. §§ 2500- 2503 and notes. As to special partners, rights, powers, and duties of, etc., see Kerr's Cyc. C. C. §§ 2489-2496 and notes. As to special partnership, admission of new members therein, etc., see Kerr's Cyc. C. C. § 2508 and note. As to special partnership, dissolution of, etc., see Kerr's Cyc. C. C. § 2509 and note. As to special partnership, formation of, etc., see Kerr's Cyc. C. C. §§ 2477-2485 and notes. As to special partnership, when becomes general partnership, see Kerr's Cyc. C. C. § 2507 and note. As to termination or dissolution of general partnership, in whole or in part, see Kerr's Cyc. C. C. §§ 2449-2454 and notes. As to word "limited," use of, etc., in partnership name, see Kerr's Cyc. C. C. § 2510 and note. 1256 TitX.ch.II.art.II.] POWER OF majority. §§ 2428, 2429 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. POWER OF MAJOKITY OF PARTNERS. Unless otherwise expressly stipulated, the decision of the majority of the members of a general partnership binds it in the con- duct of its^ business. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 78 C. 225, 229, 20 P. 547, 549 (construed and applied). As to authority and powers of partner in liquidation, see Kerr's Cyc. C. C. §§ 2461, 2462 and notes. As to authority of any general partner to bind copartnership, see Kerr's Cyc. C. C. § 2429 and note. As to implied authority of partner to incur debt, see 48 A. S. 438. As to limitations upon authority of general partner to act for partnership, see Kerr's Cyc. C. C. § 2430 and note. As to many miscellaneous matters as to partnership, gener- ally, see note § 2395, ante. As to mining partnership, rule as to conduct of business, see Kerr's Cyc. C. C. § 2520 and note. As to notes signed by partners in their individual names, see 87 A. D. 535. As to partner signing note of surety, see 45 A. D. 302. As to power of one partner to bind firm, see 12 A. S. 304, 305. As to power of one partner to restrict authority of copartner, see 88 A. S. 322-324. § 2429. AUTHORITY OF INDIVIDUAL PARTNER. Every general partner is agent for the partnership in the transac- tion 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. History: Enacted March 21, 1872. 1257 § 2430 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 24 pars, annotation. 65 C. 559, 560 (applied); 4 P. 567; 71 C. 498, 502, 12 P. 505, 507 (con- strued and applied) ; 89 C. 526, 534, 26 P. 1087, 1089 (construed and applied); 3 C. A. 493, 495, 86 P. 618 (partner is agent of his copartner, as to all partnership transactions). As to authority of individual partner to dispose of firm prop- erty in g-eneral, see 7 A. S. 377, 379; 88 A. S. 323. As +0 authority of partner to execute note for partnership indebtedness, see 48 A. S. 441. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to revoking act of partner, see 88 A. S. 323, 324. §2430. WHAT AUTHORITY PARTNER HAS NOT. A partner, as such, has not authority to do any of the follow- ing acts, unless his copartners have wholly abandoned the business to him, or are incapable of acting: 1. To make an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust for the benefit of a creditor or of all creditors; 2. To dispose of the good will 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 impossible to carry on the ordinary business of the partnership; 5. To confess a judgment; 6. To submit a partnership claim to arbitration; 7. To do any other act not within the scope of the pre- ceding section. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 31 pars, annotation. 4 P. 446, 447 (construed and applied); 65 C. 559, 560, 4 P. 567 (construed and applied); 71 C. 498, 502, 12 P. 505, 507 (construed and applied); 80 C. 320, 321, 22 P. 194 (construed and applied); 81 C. 14, 17, 22 P. 264, 265 (cited, construed, and applied); 90 C. 84, 87 (applied); 27 P. 58, 59; 124 C. 429, 432 (applied); 71 A. S. 94, 57 P. 468, 46 L. 142. As to assignment by partnership for benefit of creditors, see 50 A. S. 90-92. As to general partner as agent for partnership, see Kerr's Cyc. C. C. § 2429 and note. 1258 Tit.X,ch.II,art.II.] ACTS IN BAD FAITH. § 2431 As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to sale of good-will of business and warranty that vendor will not endeavor to draw off any of customers, see Kerr's Cyc. C. C. § 1776 and note. §2431. PARTNER'S ACTS IN BAD FAITH, WHEN IN- EFFECTUAL. A partner is not bound by any act of a co- partner, in bad faith toward him, though within the scope of the partner's powers, except in favor of persons who have in good faith parted with value in reliance upon such act. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 131 C. 6, 7, 63 P. 61 (construed and applied); 3 C. A. 493, 495, 86 P. 618 (applied to breach of confidential relation and fraud in purchase of mine, by analogy, though parties were not partners). As to acts of agents in general and liability of principal there- for, see Kerr's Cyc. C. C. § 2330 and note. As to good faith of partner towards copartners, see Kerr's Cyc. C. C. § 2411 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to note made by partner in firm name for private use being good in hands of innocent holder, see Kerr's Cyc. C. C. § 2429 and note par. 9. 1259 §§ 2435, 2436 CIVIL, CODE. [Div.III.Pt.IV. ARTICLE III. MUTUAL OBLIGATIONS OF PARTNERS. § 2435. Profits of individual partner. § 2436. In what business partner may not engage. S ? '37. In what he may engage. § 2438. Must account to firm for profits. § 2435. PROFITS OF INDIVIDUAL PARTNER. All profits made by a general partner, in the course of any business usually carried on by the partnership, belong to the firm. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 109 C. 130, 132, 41 P. 859 (construed and applied with other sections). As to confidential relations between partners, see Kerr's Cyc. C. C. § 2410 and note. As to duty of general partner to account for all profits made in course of adverse business, see Kerr's Cyc. C. C. § 2438 and note. As to duty of partner to act in highest good faith toward copartners, see Kerr's Cyc. C. C. § 2411 and note. As to duty of partners to account for all profits of partner- ship business, see Kerr's Cyc. C. C. § S412 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2436. IN WHAT BUSINESS PARTNER MAT NOT EN- GAGE, A general partner, who agrees to give his personal attention to the business of the partnership, may" not engage in any business which gives him an interest adverse to that of the partnership, or which prevents him from giving to such business all the attention which would be advantageous to it. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 109 C. 130, 132, 41 P. 859 (construed and applied with other sections). As to confidential relations of partners, see Kerr's Cyc. C. C. § 2410 and note. 1260 Tit.X,ch.II,art.III.] accounting to firm. §§ 2437, 2438 As to duty of partner to exercise highest good faith towards copartners, see Kerr's Cyc. C. C. § 2411 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2137. IN WHAT HE MAY ENGAGE. A partner may engage in any separate business, except as otherwise pro- vided by the last two sections. History: Enacted March 21, 1872. 109 C. 130, 132, 41 P. 859 (construed and applied with other sections). » As to duty of general partner not to engage in business adverse to partnership, see Kerr's Cyc. C. C. § 2436 and note par. 2. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to obligation of general partner to account for profits of adverse business, see Kerr's Cyc. C. C. § 2438 and note. §2438. MUST ACCOUNT TO FIRM FOR PROFITS. A general partner transacting business contrary to the provi- sions of this article may be required by any copartner to account to the partnership for the profits of such business. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 109 C. 130, 132, 41 P. 859 (construed and applied with other sections). As to accounting to partnership for all receipts and disburse- ments in partnership business, see Kerr's Cyc. C. C. § 2412 and note. As to liability of partner to account for profits of adverse business, see Kerr's Cyc. C. C. §§ 2412, 2436 and notes. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. 1261 §2442 CIVIL CODE. [Div.IILPt.IV. ARTICLE IV. LIABILITY OF 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. § 2445. No one liable as partner unless held out as such. § 2442. LIABILITY OF PARTNERS TO THIRD PERSONS. Every general partner is liable to third persons for all the obligations of the partnership, jointly with his copartners. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 63 C. 157, 158 (construed and applied); 69 C. 616, 618, 620, 11 P. 456, 458 (construed and applied); 89 C. 367, 370. 26 P. 970, 971 (construed and applied); 89 C. 526, 534, 26 P. 1087, 1089 (con- strued and applied). As to actions against parties to joint contract or upon joint liabilitj% see Kerr's Cyc. C. C. P. § 382 and note. As to actions at option of plaintiff against persons jointly liable upon obligations, see Kerr's Cyc. C. C. P. § 338 and note. As to application by bank of individual partners' deposit on Arm debt, see 23 L. 111. As to assignment of lien for materials, etc., furnished by partnership, see Kerr's Cyc. C. C. P. § 1183 and note. As to assumption of firm debts by incoming partner, see Kerr's Cyc. C. C. § 2397 and note. As to assumption by partnership of individual debts of part- ners, see 29 L. 681-694. As to attachment of individual property of one partner for fraud of his copartner, see 25 L. 645. As to bankruptcy of partnership, see § 5 (e and h) of Bank- ruptcy Act of 1899, 30 Stats, at L. 547, 548, U. S. Comp. Stats. 1901, p. 3424, 1 F. S. A. 550, 551 and note. As to conduct of business of mining partnership by decision of members owning majority of shares or interest, see Kerr's Cyc. C. C. § 2520 and note. As to defenses of maker of partnership paper, see 46 L. 771. As to demurrers for defect of parties -plaintiff, see Kerr's Cyc. C. C. P. § 430 subd. 4 and note. As to execution by creditors, see 43 A. S. 371, 372; 57 A. S. 440, 441. 1262 » Tit.X.ch.II.art.IV.] liability for acts. § 2443 As to injunction against execution sale of partnership prop- erty, see 30 L. 98, 105, 106. As to liability of firm for fraud of one partner, see 67 A. S. 46-49. As to liability of partners as makers or indorsers of promis- sory notes, see 36 L. 703, 704. As to liability of partnership for torts, see 15 L. 463-496. As to liens claimed by partnerships for materials, etc., see Kerr's Cyc. C. C. P. § 1183 and note. As to lien of each member of mining partnership for debts due creditors and for moneys advanced by him for use of part- nership, see Kerr's Cyc. C. C. § 2514 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to partnership assignment for benefit of creditors, see As to' payment of individual debt with partnership property, see 7 A. S. 377-380. As to proceedings against joint debtors in general, see Kerr's Cyc. C. C. P. §§ 989, 994 and notes. As to release of one of two or more joint debtors not ex- tinguishing obligation of others, unless mere guarantors, etc., see Kerr's Cyc. C. C. § 1543 and note. As to rights of creditors, purchasers, and other third parties in partnership real estate, see 28 L. 161-175. As to rule that several persons contracting together with same party for one and same act shall be regarded as jointly and not individually or separately liable in absence of agreement to the contrary, see Kerr's Cyc. C. C. §§ 1430, 1431 and notes. §2443. LIABILITY FOR EACH OTHER'S ACTS AS AGrENTS. The liability of general partners for each other's acts is defined by the title on agency. History: Enacted March 21, 1872 See Kerr's Cyc. C. C. for 4 pars, annotation. 89 C. 526, 534, 26 P. 1087, 1089 (construed and applied); 114 C. 396, 399, 46 P. 290 (construed and applied); 131 C. 6, 7, 63 P. 61 (construed and applied). As to acts of partner and liability of copartners therefor within scope of actual or ostensible authority, see Kerr's Cyc. C C. §§ 2330, 2431 and notes. As to agency in general, authority of agents, etc., see Kerr s Cyc. C. C. §§ 2304-2326 and notes. As to application of rules of liability of partner for particular crimes and offenses of copartner, see 41 L. 652-661. 1263 § 2444 CIVIL, CODE. [Div.III,Pt.IV. As to evidence, presumption, and burden of proof relating to liability of partner, etc., see 41 L. 672-676. As to general partner as agent for partnership, etc., see Kerr's Cyc. C. C. P. § 2429 and note. As to general partner, limitation of authority of, see Kerr's Cyc. C. C. P. § 2430 and note. As to general rules relating to partner's liability for acts of copartner, see 41 L. 650, 651. As to Ti.^bility of partner for libelous publication by copartner, see 26 L. 781. As to liability of partnership for commercial paper executed by non-trading partner, see 11 L. 238. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to partner's liability for selling liquor to minors through copartner, agents, or servants, see 41 L. 666-668. As to partner's liability for selling liquor without license through copartner or agent or servant, see 41 L. 664, 666. As to partner's liability for violation of liquor laws by copart- ner, see 41 L. 661-676. As to restrictions upon agents, authority and effect of notice thereof, see Kerr's Cyc. C. C. § 2318 and note. As to tortious acts of partner, liability for, etc., see 37 A. D. 327; 89 A. D. 415; 35 A. D. 616; 82 A. D. 395; 98 A. D. 136. §2M4. LIABILITY OF ONE HELD OUT AS PARTNER. Any one permitting himself to be represented as a partner, general or special, is liable, as such, to third persons to whom such representation is communicated, and who, on the faith thereof, give credit to the partnership. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 122 C. 609, 613, 614, 55 P. 425, 426 (construed as not applying); 35 P. 309 (cited). As to estoppel to deny that one is partner, see 22 A. S. 757, 758. As to holding out as partner and estoppel to deny partnership relation, see 20 L. 598, 599. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to ostensible agency in general, see Kerr's Cyc. C. C. § 2300 and note. As to ostensible authority of agent, see Kerr's Cyc. C. C. § 2317 and note. 1264 Tit.X,ch.II,art.IV.] WHO LIABLE AS. § 2445 §2445. NO OXE LIABLE AS PARTNER UNLESS HELD OUT AS SUCH. No one is liable as a partner who is not such in fact, except as provided in the last section. History: Enacted March 21, 1872. 122 C. 609, 613, 614, 55 P. 425, 426 (construed and applied with other sections). As to liability of general partner to tliird persons, see Kerr's Cyc. C. C. § 2442 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to partnership, definition of, contracts creating, etc., see Kerr's Cyc. C. C. § 2395 and note. 1265 §§ 2449, 2450 CIVIL CODE. [Div.III,Pt.IV. ARTICLE V 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. DURATION OF PARTNERSHIP. If no term is prescribed by agreement for its duration, a general partner- ship continues until dissolved by a partner or by operation of law. History: Enacted March 21, 1872. As to dissolution in part of general partnership, see Kerr's Cyc. C. C. § 2451 and note. As to dissolution of general partnership, see Kerr's Cyc. C. C. § 2450 and note. As to dissolution of special partnership, see Kerr's Cyc. C. C. §§ 2507-2510 and notes. As to judgment of dissolution, when general partner entitled to, see Kerr's Cyc. C. C. § 2452 and note. As to liquidation of partnership after dissolution, see Kerr's Cyc. C. C. §§ 2458-2462 and notes. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to mining partnership not dissolved by conveyance of interest of partner, see Kerr's Cyc. C. C. § 2516 and note. As to notice of dissolution, effect of, etc., see Kerr's Cyc. C. C. § 2453 and note. §2450. TOTAL DISSOLUTION OF PARTNERSHIP. A general partnership is dissolved as to all the partners: 1. By lapse of the time prescribed by agreement 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 the transfer to a person, not a partner, of the inter- est of any partner in the partnership property; 1266 Tit.X,ch.II,art.V.] total dissolution. §2450 5. By war, or the prohibition of commercial intercourse between the country in which one partner resides and that in which another resides; or, 6. By a judgment of dissolution. History: Enacted March 21, 1872; amended by Code Com- mission, Act 'March 16, 1901, Stats, and Amdts. 1900-1, p. 415, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 40 pars, annotation. 89 C. 547, 550, 26 P. 1095 (construed and applied); 104 C. 302, 305, 37 P. 1048, 38 P. 109 (construed and applied). As to agreement of retiring partner to refrain from carrying on similar business in limited territory being valid, see Kerr's Cyc. C. C. § 1675 and note. As to authority of surviving partner to continue possession of property, etc., after death of copartner, see Kerr's Cyc. C. C. P. § 1585 and note. As to authority of surviving partner to settle affairs of part- nership, see Kerr's Cyc. C. C. P. § 1585 and note. As to compensation of partner for services after death of copartner, see Kerr's Cyc. C. C. § 2413 and note. As to continuance of partnership after death of member, see 79 A. S. 710-716. As to dissolution of partnership by death, rights of surviving partner, etc., see 7 L. 788-794; 28 L. 129-137. As to dissolution of partnership for definite period described in agreement, see 77 A. S. 319-321. As to dissolution of partnerships in general, see 69 A. S. 410- 435; 40 A. S. 571. As to inventory and appraisement of partnership interests, see Kerr's Cyc. C. C. P. §§ 1443, 1585 and notes. As to judgment of dissolution, see Kerr's Cyc. C. C. § 2452 and note. As to lien of mining partner on partnership property continu- ing after dissolution of partnership, see Kerr's Cyc. C. C § 2514 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to mining partnerships, dissolution of, see Kerr's Cyc. C. C. § 2516 and note. As to partial dissolution of general partnership, see Kerr's Cyc. C. C. § 2451 and note. As to partnership after death, see 79 A. S. 709-716. As to all partnerships being subject to dissolution, see 77 A. S. 319. As to powers and authority of partners after dissolution of general partnership, see Kerr's Cyc. C. C. §§ 2458-2462 and notes. 1267 §§ 2451, 2452 CIVIL CODE. [Div.III.Pt.IV. As to receivers of partnership, see 71 A. S. 376. As to receiverships in general, see Kerr's Cyc. C. C P. §§ 564- 569 and notes. As to sale of good-will of business of partnership, see Kerr's Cyc. C. C. § 1776 and note. As to subrogation of partner against copartner upon paying firm debt after dissolution, see Kerr's Cyc. C. C. § 2405 and note. As to transfer of interest in mining partnership, effect of, see Kerr's Cyc. C. C. § 2516 and note. §2451. PARTIAL DISSOLUTION. A general partnership may be dissolved, as to himself only, by the expressed will of any partner, notwithstanding his agreement for its con- tinuance, subject however to liability to his copartners for any damage caused to them thereby, unless the circumstances are such as entitle him to a judgment of dissolution. Hi-story: Enacted March 21, 1872. As to circumstances entitling partner to judgment of disso- lution, see Kerr's Cyc. C. C. § 2452 and note. As to liability of partners, copartners in general, see Kerr's Cyc. C. C. § 2443 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2452. PARTNER ENTITLED TO DISSOLUTION. A general partner is entitled to a judgment of dissolution: 1. When he, or another partner, becomes legally incapable of contracting; 2. "When another partner fails to perform his duties under the agreement of partnership, or is guilty of serious mis- conduct; or, 3. When the business of the partnership can be carried on only at a permanent loss. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. As to incapacity of persons to contract, see Kerr's Cyc. C. C. §§ 39, 40 and notes. As to intervention in action for dissolution, see Kerr's Cyc. C. C. P. § 387 and note. As to many miscellaneous matters as to partnership, gener- ally, see note § 2395, ante. As to receivers, appointment of powers, etc., in general, see Kerr's Cyc. C. C. P. §§ 564-568 and notes. 1268 Tit.X,ch.II,art.V.] TERMINATION. §§ 2453. 2454 8^453 NOTICE OF TERMINATION. The liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of persons who have had dealings with and given credit to the partner- ship during its existence, until they have had personalnotice of the dissolution; and in favor of other persons until such dissolution has been advertised in a newspaper published m every county where the partnership, at the time of its dis- solution, had a place of business, if a newspaper is there published, to the extent in either case to which «uch persons part with value in good faith, and in the belief that such partner is still a member of the firm. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 110 r^ QSft ■?«? -^SS 44 P. 727 (construed and applied). AS S ablHty of '/eLral partner for acts o, copartners. >n , T^„,.,.'= cvo r C F ^ 2443 and note. 'TJt nr.mr/^f pai-tneS w.Le no notice of dissolution is ^'iT'trmlny^'mlscllianeous matters as to partnership gener- ^^^sTi^'e'^^^S^ion, see 84 A. D. 354; 40 A. S. 573. S9454. NOTICE BY CHANGE OF NAME. A change of the partnership name, which plainly indicates the withdmwal • of a partner, is sufficient notice of the fact of such ^Mth- drawal to all persons to whom it is ^^^^^^^^^'^f ^^' ,^?' ^ change in the name, which does not contain such an indica- tion, is not notice of the withdrawal of any partner. History: Enacted March 21, 1872. AS to Change of partnership, see Kerr's Cyc. C. C. P. § 2453 and "I's to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. t^^.._'c Ovc C C. P. As to notice of change of partnership, see Kerr s Cyc. C. c. f § 2453 and note pars. 3-5. 1269 §§2458,2459 CIVIL CODE. [Div.III,Pt.IV. ARTICLE VI. LIQUIDATION. § 2458. Powers of partners after dissolution. § 2459. Who may act in liquidation. § 2460. Who may not act in liquidation. ,5 2461. Powers of partners in liquidation. § 2462. What partner may do in liquidation. §2458. POWERS OF PARTIVERS AFTER DISSOLUTION. After the dissolution of a pai'tnership, the powers and author- ity of the partners are such only as are prescribed by this article. History: Enacted March 21, 1872. 89 C. 547, 551, 26 P. 1095, 1097 (construed and applied with other sections). As to dissolution of partnership, see Kerr's Cyc. C. C. §§ 2449- 2454 and notes. As to extent of powers of surviving partner on dissolution of copartnership by death of copartner to retain employee of copartnership, see Kerr's Cyc. C. C. § 2462 and note par. 2. As to many miscellaneous matters as to partnership, gener- ally, see note § 2395, ante. As to powers of partner after dissolution, generally, see 15 L. 656-660. As to powers of partner in liquidation, see 40 A. S. 571, 572. As to right of surviving partner to settle affairs of partner- ship, see Kerr's Cyc. C. C. § 2450 and note. §2459. WHO MAY ACT IN LIQUIDATION. Any member of a general partnership may act in liquidation of its affairs, except as provided by the next section. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 74 C. 418, 420, 16 P. 196 (construed and applied); 81 C. 14, 18, 22 P. 264, 266 (construed and applied); 89 C. 547, 551, 26 P. 1095 (construed and applied with other sections). As to many miscellaneous matters as to partnership, gener- ally, see note § 2395, ante. As to powers of surviving partner in general, see Kerr's Cyc. C. C. § 2150 and note. 1270 Tit.X.ch.II.aft.VL] LIQUIDATION, POWERS. §§ 2460, 2461 As to powers and authority of general partner in liquidation, see Kerr's Cyc. C. C. §§ 2461, 2462 and notes. As to powers of surviving partner on dissolution of copartner- ship by death of copartner to retain employee of copartnership, see Kerr's Cyc. C. C. § 2462 and note pars. 2-6. §2460. ^VHO MAI NOT ACT IN LIQUIDATION. 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 persons parting with value, in good faith, upon credit thereof. History: Enacted March 21, 1872. 74 C. 418, 420, 16 P. 196 (construed and applied with other sec- tions); 89 C. 547, 551, 26 P. 1095 (construed and applied with other sections). As to many iniscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to power of either partner to act in liquidation where affairs are not committed to one partner by consent, see Kerr's Cyc. C. C. § 2459 and note. As to powers of general partner acting in liquidation gener- ally, see Kerr's Cyc C. C. §§ 2461, 2462 and notes. §2461. POWERS OF PARTNERS IN LIQUIDATION. A partner authorized to act in liquidation may collect, com- promise, or release any debts due to the partnership, pay or compromise any claims against it, and dispose of the part- nership property. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 415, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 8 pars, annotation. 74 C. 418, 420, 16 P. 196, 197 (construed and applied); 81 C. 14, 18, 22 P. 264, 266 (construed and applied); 84 C. 89, 92, 94. 23 P. 1112, 1113, 1114 (construed and applied); 89 C. 547, 551, 26 P. 1095 (construed and applied). As to extent of powers of surviving partner on dissolution of copartnership by death of copartner to retain employee of copartnership, see Kerr's Cyc. C. C. § 2462 and note pars. 2-5. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to right of surviving partner to continue in possession of partnership and to settle its business, etc., see Kerr's Cyc. C. C. P. § 1585 and note. 1271 § 2462 CIVIL CODE. [Div.III,Pt.IV. § 2462. >VHAT PARTNER MAY DO IN LIQUIDATION. A partner authorized to act in liquidation, may indorse, in the name of the firm, promissory notes, or other obligations held by the partnership, 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 barred under the provisions of the Code of Civil Procedure. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 252. See Kerr's Cyc. C. C. for 8 pars, annotation. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. 1272 Tit.X,ch.II,art.VII.] fictitious name. § 2466 ARTICLE VII. OF THE USE OF FICTITIOUS NAMES. § 2466. Fictitious names, duties of those using. § 2467. Style of foreign partnership. § 2468. Certificates, execution, filing, etc. § 2469. Change of membership, filing new certificate. § 2470. Register of firms to be kept by county clerk. § 2471. Certified copies of register, and proof of publication, to be evidence. § 2472. Formation of special partnership. § 2466. FICTITIOUS NAMES, DUTIES OF THOSE USIXG. Except as otherwise provided in the next section, every partr nership transacting business 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 partnership and their places of residence, and publish the same once a week for four successive weeks, in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper pub- lished in an adjoining county. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 253. See Kerr's Cyc. C. C. for 31 pars, annotation. 56 C. 159, 161 (construed and applied): 56 C. 262, 263. 264 (referred to); 64 C. 73, 74, 28 P. 61 (construed and applied); 67 C. 26, 6 P. 875, 876, (cited in connection with §§ 989-994 C. C. P.): 6 P. 688 (construed and applied); 67 C. 635. 636, 8 P. 444 (con- strued and applied); 70 C. 194, 195, 196, 11 P. 565 (construed and applied); 70 C. 398, 399, 11 P. 745 (construed and applied); 74 C. 151, 153, 156, 13 P. 313, 314, 15 P. 451 (construed and applied); 74 C. 586, 588, 16 P. 493, 495 (construed and applied); 81 C. 280, 283, 22 P. 856 (referred to); 82 C. 577, 584, 23 P. 198. 200 (re- ferring to construction in 56 C. 262); 85 C. 142, 143. 24 P. 659 (construed and applied); 88 C. 600, 601, 26 P. 596. 597 (construed and applied); 88 C. 644. 647, 26 P. 596 (construed and applied); 89 C. 101, 106, 26 P. 639, 640 (construed and applied); 92 C. 221, 226, 28 P. 935, 936 (construed and applied); 93 C. 126, 28 P. 811 1273 §§ 2467, 2468 CIVIL CODE. [Div.III.Pt.IV. (referred to); 101 C. 89, 90, 35 P. 431, 432 (construed and ap- plied); 118 C. 11, 17, 50 P. 23 (construed and applied); 123 C. 185, 186, 55 P. 783 (construed and applied); 135 C. 621, 622, 623, 67 P. 1037 (construed and applied); 6 C. A. 369, 373, 92 P. 322 (construed with § 2468 — what constitutes sufficient publication — § 2466 does not require any acknowledgment to complete certifi- cate) ; 6 C. A. 547, 92 P. 651 (referred to). As to construction of this section in reference to special pro- ceedings, see Kerr's Cyc. C. C. § 2468 and note par. 2. As to effect of this section in action to amend judgment, see Kerr's Cyc. C. C. P. §§ 989, 994 and notes. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2467. STYLE OF FOBEION PARTNERSHIP. A com- mercial 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 partnership name used by it there, although it be fictitious, or do[es] not show the names of the persons interested as partners in such business. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 253. 67 C. 635, 636, 8 P. 444 (construed and applied with §§ 2466, 2468). As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to nonsuit for failure to file certificate, see Kerr's Cyc. C. C. § 2466 and note par. 21. § 2468. CERTIFICATES, EXECUTION, FILING, ETC. The certificate filed with the clerk, as provided in section twenty- four hundred and sixty-six, must be signed by the partners, and acknowledged before some officer authorized to take the acknowledgment of conveyances of real property. 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 commencement of the partnership; where the partnership has been heretofore formed, the certifi- cate must be filed, and the publication made within six 1274 Tit.X,ch.II,art.VII.] CERTIFICATES, ETC. § 2468 months after the passage of this act. Persons doing business as partners contrarj' to the provisions of this article, shall not maintain any action upon or on account of any contracts made or transactions had in their partnership name, in any court of this state, until they have first filed the certificate and made the publication herein required. Hi.story: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 253-4; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 416, held uncon- stitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 11 pars, annotation. 56 C. 159, 161, 162 (construed and applied); 56 C. 262, 264 (referred to); 61 C. 155, 156 (construed and applied); 64 C. 73, 74, 28 P. 61 (construed and applied); 67 C. 26, 6 P. 875, 87.6 (cited in connection with §§989 to 994 C. C. P.); 67 C. 126, 7 P. 445 (construed and applied); 6 P. 688 (construed and applied); 67 C. 635, 636, 8 P. 444 (construed and applied); 70 C. 398, 399, 11 P. 745 (construed and applied); 74 C. 151, 154, 13 P. 313, 314, 15 P. 451 (construed and applied); 74 C. 586, 588, 16 P. 493, 495 (construed and applied); 77 C. 69, 72, 18 P. 886, 888 (referred to as analogous to similar provision made with reference to cor- porations in §299 C. C); 81 C. 280, 283, 22 P. 856, 857 (referred to); 89 C. 101, 106, 26 P. 639, 640 (construed and applied); 93 C. 126, 28 P. 811 (referred to); 101 C. 89, 90, 35 P. 431, 432 (con- strued and applied); 111 C. 133, 138, 43 P. 525 (referred to in construing analogous § 299 C. C. requiring corporations to file copy of articles of incorporation, etc.); 118 C. 11, 17, 50 P. 23 (construed and applied); 123 C. 185, 186, 55 P. 783 (construed and applied); 135 C. 621, 622, 623, 67 P. 1037 (construed and applied); 6 C. A. 369, 373, 92 P. 322 (construed with §2466 — statute is fully met by what publication — acknowledgment); 6 C. A. 547, 92 P. 651 (referred to). As to effect of this section in action to amend judgment, see Kerr's Cyc. C. C. P. §§ 989, 994 and notes. As to failure to file certificate and effect thereof in abating action, see Kerr's Cyc. C. C. § 2466 and note par. 21. As to failure to file certificate being matter of defense and waiver thereof when not specially set up as defense, see Kerr's Cyc. C. C. § 2466 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to when court should instruct jury that plaintiff cannot recover until provisions of publishing certificate are complied with, upon issue raised by pleadings, see Kerr's Cyc. C. C. § 2466 and note. 1275 §§ 2469-2471 CIVIL CODE. [Div.III,Pt.IV. §2469. CHANGE OF MEMBERSHIP, FILING NEW CER- TIFICATE. On every change in the members of a partner- ship transacting business in this state under a fictitious name, or a designation which does not show the names of the persons interested as partners in its business, except in the cases mentioned in section twenty-four hundred and sixty-seven, a new certificate must be filed with the county clerk, and a new publication made as required by this article on the formation of such partnership. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 254. See Kerr's Cyc. C. C. for 2 pars, annotation. 93 C. 172, 178, 28 P. 814, 815 (construed and applied). As to certificate designating names of persons interested in partnership transacting business under fictitious name, see Kerr's Cyc. C. C. § 2466 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. § 2470. REGISTER OF FIRMS TO BE KEPT BY COUNTY CLERK. Every county clerk must keep a register of the names of firms and persons mentioned in the certificates filed with him, pursuant to this article, entering in alphabetical order the name of every such partnership, and of each part- ner therein. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 254. 93 C. 172, 178, 28 P. 814, 815 (construed and applied). As to certificate designating names of persons interested in partnership transacting business under fictitious name, see Kerr's Cyc. C. C. § 2466 and note. As to certified copy of certificate provided for in § 2469, ante, being competent evidence in actions by and against firm, see Kerr's Cyc. C. C. § 2469, note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. § 2471. CERTIFIED COPIES OF REGISTER, AND PROOF OF PUBLICATION, TO BE EVIDENCE. Copies of the entries of a county clerk, as herein directed, when certified by him, 1276 Tit.X,ch.II,art.VII.] SPECIAL, FORMING. § 2472 and affidavits of publication, as herein directed, made by the printer, publisher, or chief clerk of a newspaper, are presumptive evidence of the facts therein stated. History: Enacted March 21, 1S72. 93 C. 172, 178, 28 P. 814, 815 (construed and applied). As to certificate designating names of persons interested in partnership transacting business under fictitious name, see Kerr's Cyc. C. C. § 2466 and note. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2472. FORMATION OF SPECIAL PARTNERSHIP. Every co-partnership, other than those mentioned in section twenty-four hundred and sixty-seven of this code, domiciled without this state, and having no regular place of business • within this state, must, within forty days from the time it com- mences to do business therein, file in the office of the secretary of state a designation of some person residing within the state upon whom process issued by authority of or under any law of this state, may be served. A copy of such designation, duly certified by the secretary of state, is sufficient evidence of such appointment. Such process may be served on the person so designated, or, in the event that no such person is designated, then on the secretary of state, and the service is a valid service on such co-partnership. History: Enacted March 21, 1872; amended April 22. 1909, Stats, and Amdts. 1909, p. 1065. 1277 § 2477 CIVIL CODE. [Div.lIT.Pt.lV. CHAPTER III. SPECIAL PARTNERSHIP. Article I. Formation of Partnerships, §§ 2477-2485. II. Powers, Rights, and Duties of the Partners, S§ 2489-2496. III. Liability of Partners, §§ 2500-2503. IV. Alteration and Dissolution, §§ 2507-2510. ARTICLE I. FORMATION OF PARTNERSHIP. § 2477. Formation of special partnership. § 2478. Of what to consist. § 2479. Certified statement. § 2480. Acknowledged and recorded. False statement. § 2481. Affidavit as to sums contributed. § 2482. No partnership until compliance. § 2483. Certificate to be published. § 2484. Affidavit of publication filed. § 2485. Renewal of special partnership. §2477. FORMATION OF SPECIAL PARTNERSHIP. A special partnership may be formed by two or more persons, in the manner and with the effect prescribed in this chap- ter, for the transaction of any business except banking or insurance. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 74 C. 418, 419, 16 P. 196 (construed and applied); 128 C. 120, 128, 60 P. 689 (construed and applied with other sections). As to formation of special partnership, see 2 L. 43; 8 L. 712. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to meaning of term "limited partnership," see 19 Encyc. L. 336. As to what constitutes a special partnership, see Kerr's Cyc. C. C. § 2478, note. 1278 ' Tit.X,ch.III,art.I.] statement— false. §§2478-2480 §2478. OF WHAT TO CONSIST. A special partnership may consist of one or more persons called general partners, and one or more persons called special partners. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 128 C. 120, 128, 60 P. 689 (construed and applied with other sections). As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2479. CERTIFIED STATEMENT. Persons desirous of forming a special partnership must severally sign a certifi- cate, stating: 1. The name under which the partnership is to be con- ducted; 2. The general nature of the business intended to be trans- acted ; 3. The names of all the partners, and their residences, spec- ifying which are general and which are special partners; 4. The amount of capital which each special partner has contributed to the common stock; 5. The periods at which such partnership will begin and end. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 128 C. 120, 128, 60 P. 689 (special partnership Is not disclosed when). As to conditions precedent, see ante §§ 707, 1436. As to effect of non-compliance with statute requirements, see 19 Encyc. L. 339. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2480. ACKNOAVI-EDfiED AND RECOKDED. FALSE STATEMENT. Certificates under the last section must be acknowledged by all the partners, before some officer author- ized to take acknowledgment of deeds, one to be filed in the clerk's office, and the other recorded in the ofiice of the recorder of the county in which the principal place of busi- ness of the partnership is situated, in a book to be kept for 1279 §§ 2481, 2482 CIVIL CODE. [Div.III.Pt.IV. that purpose, open to public inspection; and if the partner- ship has places of bu&iness situated in different counties, a copy of the certificate, certified by the recorder in whose office it is recorded, must be filed in the clerk's office, and recorded in like manner in the office of the recorder in every such county. If any false statement is made in any such certificate, all the persons interested in the partnership are liable, as general partners, for all the engagements thereof. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 128 C. 120, 128, 60 P. 689 (special partnership is not disclosed when). As to check not being payment under statutory requirements, see 54 A. R. 781, 782. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to what is not cash under special partnership, see 25 A. R. 161, 162. §2481. AFFIDAVIT AS TO SUMS CONTRIBUTED. An affidavit of each of the partners, stating that the sums speci- fied in the certificate of the partnership as having been con- tributed by each of the special partners, have been actually and in good faith paid, in the lawful money of the United States, must be filed in the same office with the original cer- tificate. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 128 C. 120, 128, 60 P. 689 (special partnership is not disclosed when). As to many miscellaneous inatters as to partnership gener- ally, see note § 2395, ante. §2482. NO PARTNERSHIP UNTIL COMPLIANCE. No special partnership is formed until the provisions of the last five sections are complied with. Hi.story: Enacted March 21, 1872. 128 C. 120, 128, 60 P. 689 (special partnership is not disclosed when). As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. 1280 Tit.X.ch.III.art.L] CERTIFICATE. §§ 2483-2485 §2483. CERTIFK ATE TO BE PUBLISHED. The certifi- cate mentioned in this article, or a statement of its substance, must be published in a newspaper printed in the county where the original certificate is filed, and if no newspaper is there printed, then in a newspaper in the state nearest thereto. Such publication must be made once a week for four successive weeks, beginning within one week from the time of filing the certificate. In case such publication is not so made, the partnership must be deemed general. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 128 C. 120, 128, 60 P. 689 (special partnership is not disclosed when). As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2484. AFFIDAYIT OF PUBLICATION FILED. An affi- davit of the making of the publication mentioned in the pre- ceding section, made by the printer, publisher, or chief clerk of the newsaper in which such publication is made, may be filed with the county recorder with whom the original certifi- cate was filed, and is presumptive evidence of the facts therein stated. Hi-stury: Enacted March 21, 1872. 128 C. 120, 128, 60 P. 689 (special partnership is not disclosed when). As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2485. RENEWAL OF SPECIAL PARTNERSHIP. Every renewal or continuance of a special partnership must be cer- tified, recorded, verified, and published in the same manner as upon its original formation. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 128 C. 120, 128, 60 P. 689 (construed and applied with other sections). As to many misci-llaneous matters as to partnership gener- ally, see note § 2395, ante. Kerr's C. C— 41 1281 §§ 2489-2491 CIVIL CODE. [Div.III.Pt.IV. ARTICLE II. POWERS, RIGHTS, AND DUTIES OF THE PARTNERS. § 2489. Who to do business. § 2490. Special partners may advise. § 2491. May loan money. Insolvency. § 2492. General partners may sue and be sued. § 2493. Withdrawal of capital. § 2494. Interest and profits. § 2495. Result of withdrawing- capital. § 2496. Preferential transfer void. §2489. WHO TO DO BtlSINESS. The general partners only have authority to transact the business of a special partnership. Hi.sfory: Enacted March 21, 1872, founded upon § lO, Act March 4, 1870, Stats. 1869-70, p. 124; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 816, held unconstitutional, see history, § 4 ante. §2490. SPECIAL PARTNERS MAY ADVISE. A special partner may at all times investigate the partnership affairs, and advise his partners, or their agents, as to their manage- ment. History: Enacted March 21, 1872, founded upon § 11, Act March 4, 1870, Stats. 1869-70, p. 124. See Kerr's Cyc. C. C. for 6 pars, annotation. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. As to powers of special partners, see 56 A. D. 149. §2491. MAY LOAN MONEY. INSOLVENCY. A special partner may lend money to the partnership, or advance money for it, and take from it security therefor, and as to such loans or advances has the same rights as any other creditor; but in case of the insolvency of the partnership, all other claims which he may have against it must be postponed until all other creditors are satisfied. 1282 Tit.X.ch.III.art.II.] WITHDRAWING CAPITAL. §§ 2492-2495 Hi$«tory: Enacted March 21, 1872, founded upon § 12, Act March 4, 1870, Stats. 1869-70, p. 124. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. § 2492. GE>EKAL PARTNERS MAY SUE AND BE SUED. In all matters relating to a special partnership, its general partners may sue and be sued alone, in the same manner as if there were no special partners. History: Enacted March 21, 1872, founded upon § 13, Act Marcli 4,' 1870, Stats. 1869-70, p. 124. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to partnersliip gener- ally, see note § 2395, ante. § 2493. WITHDRA^VAL OF CAPITAL. No special partner, under any pretense, may withdraw any part of the capital invested by him in the partnership, during its continuance. History: Enacted March 21, 1872, founded upon § 14, Act March 4, 1870, Stats. 1869-70, p. 124. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2494. INTEREST AND PROFITS. A special partner may receive such lawful interest and such proportion of profits as may be agreed upon, if not paid out of the capital invested in the partnership by him, or by some other special partner, and is not bound to refund the same to meet subsequent losses. History: Enacted March 21, 1872, founded upon § 15, Act March 4, 1870, Stats. 1869-70, p. 124. §2495. RESULT OF ^VITHDRAWINCS ( APITAL. If a spe- cial partner withdraws capital from the firm, contrary to the provisions of this article, he thereby becomes a general partner. History: Enacted March 21. 1872, founded upon § 16, Act March 4. 1870. Stats. 1869-70, p. 124. 1283 § 2496 CIVIL CODE. [Div.III,Pt.IV. § 2496. PREFERENTIAL TRANSFER VOID. Every trans- fer of the property of a special partnership, or of a partner therein, made after or in contemplation of the insolvency of such partnership or partner, with intent to give a prefer- ence to any creditor of such partnership or partner over any other creditor of such partnership, is void against the creditors thereof; and every judgment confessed, lien cre- ated, or security given, in like manner and with the like intent, is in like manner void. History: Enacted March 21, 1872, founded upon § 17, Act March 4, 1870, Stats. 1869-70, p. 124. S^e Kerr's Cyc. C. C. for 10 pars, annotation. As to assignment by limited partnership for benefit of credi- tors, and validity thereof, see note 9 Paige Oh. (N. T.) 577, 3 L. ed. 1109. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. 1284 Tit.X,ch.III,art.III.] liability. §§2500,2501 ARTICLE III. LIABILITY OP PARTNERS. § 2500. Liability of partners. § 2501. Of special partners. § 2502. Liability for unintentional act. § 2503. Who may question existence of special partnership. §2500. LIABILITY OF PARTNERS. The general part- ners in a special partnership are liable to the same extent as partners in a general partnership. Hi.Mtory: Enacted March 21, 1872, founded upon § IS, Act March 4, 1870, Stats. 1869-70, p. 124. As to liability of members of special partnership, see 3 L. 503. As to liability of third party contributing money for partner, see 25 A. R. 162. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2501. OF SPECIAL PARTNERS. The coutriliution of a special partner to the capital of the firm, and the increase thereof, is liable for its debts, but he is not otlierwise liable therefor, except as follows: 1. If he has wilfully made or permitted a false or materially defective statement in the certificate of -the partnership, the affidavit filed therewith, or the published announcement thereof, he is liable, as a general partner, to all creditors of the firm; 2. If he has wilfully interfered with the business of the firm, except as permitted in article two of this chapter, he is liable in like manner; or, 3. If he has wilfully joined in or assented to an act con- trary to any of the provisions of article two of this chapter, he is liable in like manner. History: Enacted March 21, 1872, founded upon § 19, Act March 4, 1870, Stats. 1869-70, p. 124. 1285 §§ 2502, 2503 CIVIL CODE. [Div.III.Pt.TV. See Kerr's Cyc. C. C. for 6 pars, annotation. As to many miscellaneous inatters as to partnership gener- ally, see note § 2395, ante. § 2502. LIABILITY FOR UNINTENTIONAL ACT. When a special partner has unintentionally done any of the acts mentioned in the last section, he is liable, as a general part- ner, to any creditor of the firm who has been actually misled thereby to his prejudice. History: Enacted March 21, 1872, founded upon § 20, Act March 4, 1870, Stats. 1869-70, p. 125. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. § 2503. WHO MAY QUESTION EXISTENCE OF SPECIAL PARTNERSHIP. One who, upon making a contract with a partnership, accepts from or gives to it a written memorandum of the contract, stating that the partnership is special, and giving the names of the special partners, cannot afterwards charge the persons thus named as general partners upon that contract, by reason of an error or defect in the proceed- ings of the creation of the special partnership, prior to the acceptance of the memorandum, if an effort has been made by the partners, in good faith, to form a special partnership in the manner required by article one of this chapter. History: Enacted March 21, 1872, founded upon § 21, Act March 4., 1870, Stats. 1869-70, p. 125. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. For Commissioners' comment on this section, see Kerr's Cyc C. C. § 2503, note. 1286 Tit.X,ch.III,art.IV.] WHEN SPECIAL. §§ 2507, 2508 ARTICLE IV. ALTERATION AND DISSOLUTION. § 2507. When special partnership becomes general. § 2508. How new special partners may be admitted. § 2509. Dissolution of special partnership. Notice. § 2510. The name of a special partner not used, unless. § 2507. WHEN SPECIAL PARTNERSHIP BEfOMES GEN- ERAL. A special partnership becomes general if, witliin ten days after any partner withdraws from it, or any new partner is received into it, or a change is made in the nature of its business or in its name, a certificate of such fact, duly verified and signed by one or more of the partners, is not filed with the county clerk and recorder with whom the original certificate of the partnership was filed, and notice thereof published as is provided in article one of this chapter for the publication of the certificate. History: Enacted March 21, 1872, founded upon § 22, Act March 4, 1870, Stats. 1869-70, p. 125. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2508. HOW NEW SPECIAL PARTNERS MAY BE AD- MITTED. New special partners may be admitted into a spe- cial partnership upon a certificate, stating the names, resi- dences, and contributions to the common stock of each of such partners, signed by each of them, and by the general partners, verified, acknowledged, or proved, according to the provisions of article one of this chapter, and filed with the county clerk and recordei- with whom the original certificate of the partnership was filed. History: Enacted March 21, 1872, founded upon § 23, Act March 4, 1870, Stats. 1869-70, p. 125. 1287 §§ 2509, 2510 CIVIL CODE. [Div.III.Pt.IV §2509. DISSOLUTION OF SPECIAL PARTNERSHIP. NOTICE. A special partnership is subject to dissolution in the same manner as a general partnership, except that no dissolution, by the act of the partners, is complete until a notice thereof has been filed and recorded in the office of the county clerk and recorder with whom the original certificate was renorded, and published once in each week, for four suc- cessive weeks, in a newspaper printed in each county where the partnership has a place of business. History: Enacted March 21, 1872, founded upon § 24, Act March 4, 1870, Stats. 1869-70, p. 125. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. §2510. THE NAME OF A SPECIAL PARTNER NOT USED, UNLESS. The name of a special partner must not be used in the firm name of partnership, unless it be accompa- nied with the word "limited." History: Enacted March 21, 1872, founded on § 25, Act March 4, 1870, Stats. 1869-70, p. 125. 1288 Tit.X.ch.IV.] MINING PARTNERSHIP. § 2511 CHAPTER IV. MINING PARTNERSHIPS. § 2511. Wlien a milling partnership exists. § 2512. Express ag-reenient not necessary to constitute. § 2513. Profits and losses, how sliared. § 2514. Lien of partners. § 2515. Mine. Partnership property. § 2516. Partnership not dissolved by sale of interest. § 2517. Purchaser takes, subject to liens, unless, etc. § 2518. Takes with notice of lien, wlien. § 2519. Contract in writing, when binding. §2520. Owners of majority of. shares govern. §2511. WHEN A MINING} PARTNERSHIP EXISTS. A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the mineral therefrom actually engage in working the same. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 35 pars, annotation. 81 C. 14, 16, 22 P. 264, 265 (referred to); 89 C. 367, 372, 26 P. 970, 971 (construed and applied with §2512); 107 C. 504, 510, 40 P. 802 (construed and applied); 121 C. 213, 215, 53 P. 557 (con- strued and applied); 127 C. 520, 521, 59 P. 937, 938 (construed and applied with §2512); 128 C. 120, 127, 60 P. 689 (construed and applied). As to many miscellaneous matters as to partnership gener- ally, see note § 2395, ante. MINING PARTNERSHIPS. As to generally, see 83 A. D. 104; 8 A. S. 488; 22 Encyc. L. 63, 226. As to application of provisions of § 2453 of C. C. to mining partnerships, see Kerr's Cyc. C. C. § 2453 and note. As to mining partnerships, see note 83 A. D. 104-110. Accounting. — See 22 Encyc. L, 230. Acquiring adverse interest. — See 22 Encyc. L. 229. Contracts between partners. — See 22 Encyc. L. 227. Defmition of. — See S3 A. D. 96; 28 A. S. 475; 26 L. ed. 266; 22 Encyc. L. 226; 5 W. & P. 4521. Differ from ordinary partnerships. — See Martin's Mining Law § 392. 1289 § 2511 CIVIL CODE. [Div.III.Pt.IV. Dissolution and winding up. — See 22 Encyc. L.. 232. Distinction between mining and ordinary partnerships. — See 4 A. C. 267; 27 Encyc. L. 227. Distinguished — From co-ownership. — See 22 Encyc. L. 228. Same — From ordinary partnerships. — See 4 A. C. 267; 22 Encyc. L. 227. Evidence of. — See 22 Encyc. L. 228. Governed by many of the rules relating to ordinary part- nerships but differs therefrom in many important particulars. — See S3 A. D. 96; 26 L. ed. 266; 29 L. ed. 126; 32 L.. ed. 764; 5 W. & P. 4521. Grub-stake contracts — As to, generally, see Martin's Mining Law §§377-390; 22 Encyc. L. 232. In order to dissolve by a decree in equity to sell the- part- nership property, bill must allege what. — See 4 A. C. 265. Liability of partner on 'firm obligations. — See 22 Encyc. L. 231. Majority interests control, in dispute as to management. — See 4 A. C. 265. Member — May deal with partnership for his own benefit. — See Martin's Mining Law § 393. Same — May sell interest without knowledge or consent of co-owners. — See 4 A. C. 265. Nature of. — See Martin's Mining Law §391; 22 Encyc. L. 226. One partner may convey interest without dissolving part- nership. — See 4 A. C. 265. Particular powers of. — See 22 Encyc. L. 230. Partition of. — See 22 Encyc. L. 230. Partner's lien. — See 22 Encyc. L. 230. Partners may locate inining claim. — See 7 L. N. S. 817. Partnership property. — See 22 Encyc. L. 232. Power of majority. — See 22 Encyc. L. 229. Power of manager. — See 22 Encyc. L. 230. Powers of members limited. — See Martin's Mining Law § 396. Power of partners to bind fii'm. — See 22 Encyc. L. 230. Priority between firm and separate creditors. — See 22 Encyc. L. 230. Profit sharing. — See 22 Encyc. L. 227. Prospecting or grub-stake contracts. — See Martin's Mining Law §§377-390; 22 Encyc. L. 232. Relation of trust and confidence. — See 22 Encyc. L. 229. Relations of the partners. — See 28 A. S. 488. Retiring partner, rights and liabilities of. — See 22 Encyc. L. 231. Rights and liabilities — As to third persons, see 22 Encyc. L. 230. Same — Inter se. — See 22 Encyc. L. 229. Same — Of retiring partner. — See 22 Encyc. L. 231. 1290 Tit.X.ch.IV.] RELATION ARISES HOW. §§ 2512-2514 Stranger may be admitted witliout dissolving. — See Martin's Mining Law § 394. Tenants in common of mine as partners. — See 22 Enoyc. L. 227. Wliat constitutes a. — See 83 A. D. 96; 26 A. g. 475; 26 L. ed.- 266; 22 Encyc. L. 226; 5 W. & P. 4521. When exists. — See Martin's Mining Law § 395. Wlien there is a dispute as to the management, those who have the majority interest control. — See 4 A. C. 265. §2512. EXPRESS AGREEMENT NOT NECESSARY TO CONSTITUTE. An express agreement to become partners or to share the profits and losses of mining is not necessary to the formation or existence of a mining partnership. The relation arises from the ownership of shares or interests in the mine and working the same for the purpose of extracting the minerals therefrom. History: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 89 C. 367, 372, 26 P. 970, 971 (construed and applied with §2511); 107 C. 504, 511, 40 P. 802 (construed and applied); 127 C. 520, 521, 59 P. 937, 938 (construed and applied with § 2511). As to many miscellaneous matters as to partnership gener- erally, see note § 2395, ante. As to ownership of shares or interests in mine as necessary element of mining partnership, see Kerr's Cyc. C. C. § 2511 and note par. 10. §251.S. PROFITS AM) LOSSES, HOW SHARED. A mem- ber of a mining partnership shares in the profits and losses thereof in the proportion which the interest or share he owns in the mine bears to the whole partnership capital or whole number of shares. HlHtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation* 89 C. 367. 371, 26 P. 970, 971 (construed). As to many miscellaneous matters as to partnorf-Iiip gen- erally, see note § 2395, ante. §2514. LIEN OF PARTNERS. Each member of a mining partnership has a lien on the partnership property for the 1291 §§ 2515-2517 CIVIL CODE. [Div.III,Pt.IV. debts due the creditors thereof, and for money advanced by him for its use. This lien exists notwithstanding there is an agreement among the partners that it must not. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 66 C. 577, 578, 6 P. 689, 690 (construed and applied); 89 C. 367, 371... 26 P. 970, 971 (construed and applied with §2520); 144 C. 771, 773, 78 P. 239 (cited). As to joint liability of mining partner for all obligations of copartnership, see Kerr's Cyc. C. C. § 2442 and note par. 6. As to many miscellaneous matters as to partnership gen- erally, see note § 2395, ante. § 2515. MINE. PARTNERSHIP PROPERTY. The mining ground owned and worked by partners in mining, whether purchased witli partnership funds or not, is partnership property. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to partnership gen- erally, see note § 2395, ante. §2516. PARTNERSHIP NOT DISSOLVED BY SALE OF INTEREST. One of the partners in a mining partnership may convey his interest in the mine and business without dissolv- ing the partnership. The purchaser, from the date of his purchase, becomes a member of the partnership. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. As to duty of partners to exercise towards copartners high- est good faith, see Kerr's Cyc. C. C. § 2411 and note. As to many miscellaneous matters as to partnership gen- erally, see note § 2395, ante. §2517. PURCHASER TAKES, SUBJECT TO LIENS, UN- LESS, ETC. A purchaser of an interest in the mining ground of a mining partnership takes it subject to the liens exist- ing in favor of the partners for debts due all creditors thereof, or advances made for the benefit of the partnership, 1292 Tit.X.ch.IV.] TAKING WITH NOTICE. §§ 2518-2520 unless he purchased in good faith, for a valuable considera- tion, without notice of such lien. History: Enacted March 21, 1872. § 2518. TAKES AVITH NOTICE OF LIEN, AVHEX. A pur- chaser of the interest of a partner in a mine when the partnership is engaged in working it, takes with notice of all liens resulting from the relation of the partners to each other and to the creditors of the partnership. History: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to partnership gen- erally, see note § 2395, ante. §2519. CONTRACT IN WRITING, WHEN BINDING. No member of a mining partnership or other agent or manager thereof can, by a contract in writing, bind the pa,rtnership, except by express authority derived from the members thereof. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. As to many miscellaneous matters as to partnership gen- erally, see note § 2395, ante. §2520. OWNERS OF MAJORITY OF SHARES GOVERN. The decision of the members owning a majority of the shares or interests in a mining partnership binds it in the conduct of its business. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 89 C. 367, 371, 26 P. 970, 971 (construed and applied). As to many miscellaneous matters as to partnership gen- erally, see note § 2395, ante. 1293 §2527 CIVIL CODE. [Div.III,Pt.IV. TITLE XI. INSURANCE. Chapter I. Insurance in General, §§ 2527-2649. II. Marine Insurance, §§ 2655-2746, ITT. Fire Insurance, §§ 2752-2757. IV. Life and Health Insurance, §§ 2762-2766. CHAPTER I. INSURANCE IN GENERAL. Article I. Definition of Insurance, § 2527. II. What May be Insured, §§ 2531-2534. III. Parties to the Contract, §§ 2538-2542. IV. Insurable Interest, §§ 2546-2558. V. Concealment and Representation, §§ 2561-2583. VI. The Policy, §§ 2586-2599. VII. Warranties, §§ 2603-2612. VIII. Premiums, §§ 2616-2622. IX. Loss, § 2626-2629. X. Notice of Loss, §§ 2633-2637. XI. Double Insurance, §§ 2641, 2642. XII. Reinsurance, §§ 2646-2649. ARTICLE I. DEFINITION OF INSURANCE. § 2527. Insurance, what. § 2527. IIVSCRANCE, .WHAT. Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability, arising from an unknown or contingent event. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 107 C. 327, 330, 48 A. S. 140, 40 P. 431, 28 L. 692 (cited); 125 1294 II Tit.XI,ch.I,art.I.] INSURANCE. GENERALLY. §2527 C. 609, 611, 58 P. 177 (cited in connection with § 2528, which is not in code); 2 C. A. 624, 629, 84 P. 271 (beneficiary certifi- cate of fraternal association is contract of insurance — rule of interpretation). INSURANCE — GENERALLY. As to many miscellaneous matters of insurance, see note § 414, ante. As to marine insurance, see note § 2655, post. As to reinsurance, see Kerr's Cyc. C. C. § 2646 and note; also note § 2646, post. Accident, death, evidence of cause of. — See 50 A. S. 441. Accident insurance — Restrictions as to occupation and em- ployment in policy of. — See 9 L. 685; see "Accident Policy," this note. Accident policy — As to what constitutes an accident within — Contact with poisonous substances as an. — See 9 L. 687. Same — Same — Definitions and general rules. — See 30 L. 206. . Same — Same — Disease as an. — See 30 L. 209. Same — Same — Drowning as an. — See 30 L. 211. Same — Contact with poisonous substances as an accident. — See 9 L. 687. Same — Contributory negligence as a defense in suit on policy. — See 13 L. 266. Same — Death while committing a public offense. — See 9 L. 686. Same — Death while traveling. — See 9 L. 686. Same — Death while violating rules of insurance company. — See 9 L. 686. Same — Drowning as an accident. — See 30 L. 211. Same — Effect of conditions in, tliat insured use due dili- gence for his personal safety and protection. — See 3 L. 443. Same — Same — Burden of proving breach of condition. — See 13 L. 263. Same — Exterior and visible marks and signs. — See 9 L. 687; 13 L. 264. Same — External, violent and accidental means. — See 9 L. 371; 13 L. 274. Same — Intentional injuries. — See 13 L. 265. Same — Proximate cause of death under. — See 17 L. 753. Same — Restrictions as to occupation and employment in pol- icy of. — See 9 L. 685. Same — Voluntary exposure — To danger. — See 9 L. 687. Same — Same — To unnecessary risk. — See 13 L. 265. Accidental means, wliat is injury or death by. — See 54 A. R. 302; 8 A. S. 763. Actions on contract or policy — As to. generally, see 4 A. C. 1045; 5 A. C. 402; 7 A. C. 809; 10 A. C. 821. 1295 §2527 CIVIL CODE. ^ [Div.III.Pt.IV. Same — Admissibility of books of account to prove amount and value of insured goods. — See 52 L. 721. Same — Constitutionality of statutes providing damages or penalty for refusal or failure of insurance company to pay losses. — See 5 A. C. 405. Same — Contractual limitation of time — Estoppel to plead de- fense of limitation. — See 63 L. 204. Same — Same — First and last days of computation of time. — See 49 L. 208. Same— Bame — Law governing. — See 63 L. 868. Same— Same — Validity of. — See 1 L. 847; 3 L. 344; 8 L. 48. . Same — Same — When begins to run. — See 47 L. 697-711. Same — Defense of ultra vires by insurance company in. — See 4 A. C. 1046. Same — Effect of admission to change burden of proof and right to open enclosed action. — See 61 L. 537. Same — Effect of provision that deficiency in assessment may be paid from reserve or emergency fund. — See 10 L. N. S. 264. Same — First and last days in computation of time is on policy. — See 15 L. N. S. 688. Same — Mortgagee to bring in name of insured. — See 3 L. 525. Same — On policy — As bar to action to reform it. — See 12 L. N-. S. 907. Same — Same — Of reinsurance. — See 10 L. 424. Same — Remedy of beneficiary upon repudiation of contract by insurer. — See 14 L. N. S. 1110. Same — Removal, because of separable controversy, of actions relating to insurance and recovery of fire losses paid by in- surer. — See 5 L. N. S. 88. Same — Right of beneficiary to sue insurer for breach of con- tract other than failure to pay indemnity. — See 4 L. N. S. 870. Same — Right of non-complying foreign insurance company to enforce domestic contract. — See 9 A. C. 338. Same — Rule of pleadings in, on certificates of benefit asso- ciation. — See 2 L. 788. Same — Submission to arbitration as condition precedent to. — See 8 A. C. 171. Same— Third party's right of. — See 25 L. 274. Same — Transitory character of. — See 63 L. 863. Same — Validity of requirement by mutual benefit associa- tions that remedies within the order must be exhausted before resort to the civil courts. — See 8 L. N. S. 916. Same — Who is real party in interest. — See 64 L. 615. Adjustments of, when may be opened. — See 35 A. R. 775. Adopted children, rights of under insurance policy. — See 17 L. 438. Against fire — Change of title, sale by one partner to an- other, whether amounts to. — See 49 A. R. 22; 52 A. R, 442. 1296 i Tit.XI,ch.I,art.I.] INSURANCE, generally. §2527 Same — Prohibited risks, conditions against, when broken. — See 33 A. R. 781. Same — Subsequent insurance, when avoids. — See 20 A. R. 319. Same — Warranties, answers concerning watchmen, when deemed to be. — See 33 A. R. 832. Same — When remains in force after removal of property. — See 33 A. R. 147. Agency, stipulations that persons procuring policies must be deemed agents of the assured. — See 53 A. R. 201. Agent of insurance company — Assignability of rights to com- missions or renewal premiums. — See 18 L. N. S. 193. Same — Bad faith of insured as affecting estoppel of insurer to set up falsity of answers in application, cause of agent's knowledge of such falsity. — See 14 L. N. S. 239. Same — Commission of, — allowance of to applicant as payment of premium. — See 8 L. N. S. 884. Same — Effect of general notification by, on arrival of policy, when the company has substituted another form of policy for. that applied for. — See 12 L. N. S. 421. Same — Effect of insertion by, in the application of false answers to questions correctly answered by the insured. — See 4 L. N. S. 607. Same — Effect of knowledge of, acting in two capacities. — See 3 L. N. S. 444. Same — Effect of mistake in designating location of prop- erty.— See 2 L. N. S. 548. Same — Employment of clerk by. — See 10 L. 609. Same — ^^Knowledge of agent imputed to insurer. — Sec 1 L. 217. Same — Knowledge of fraud of insurer's, as an estoppel of the company. — Sec 5 L. 646; 16 L. 33. Same — Liability of agent to insurance company for losses oc- casioned by disobedience of instructions. — See 8 L. 702. Same — Notice to as notice to principal. — See 1 L. 563. Same — Same — To subagent, effect of. — See 21 L. 342. Same — Power of — Of insurance to bind company by insuring property in which he is interested personally or as agont, the company having no notice of such interest. — See 9 L. N. S. 1084. Same — Same — To liind company. — See 1 L. 482; 8 L. 72; 11 L. 341. Same — Responsibility for acts of. — See 7 L. 217. Same — Waiver by. — See 1 L. 217. Same — When insurance agent is the agent of the insured. — See 20 L. 277. Alienation, recovery by insurer retaining a lien or insurable interest after. — See 59 A. D. 304. Application as part of policy. — See Kerr's Cyc. C. C. § 2605 and note pars. 2, 3. 1297 § 2527 CIVIL CODE. [Div.III.Pt.IV. Application, misrepresentation or misstatement in, law gov- erning-, effect of. — See 7 L. 217; 8 L. 70; 10 L. 666; 63 L. 864. Application or insurance policy as governing in case of va- riance. — See 11 A. C. 708. Apportionment of loss, what constitutes double insurance for purposes of. — See 15 L. 127. Arbitration — Action on award. — See 10 L. 560. Same — Agreements to submit disputes respecting to. — See 2 A. S. 565. Same — Breach of agreement to submit to, as a defense to action on policy. — See 10 L. 559. Same — Condition precedent to action on insurance policy when. — See 15 L. N. S. 1055-1077. Same — Effect of failure of. — See 4 L. N. S. 288. Same — Provision for, waiver. — See 10 L. 558. Same — Revocation of submission to. — See 10 L. 560. Same — Submission to — As a condition precedent to suit on insurance contract containing a stipulation for arbitration- — See 8 A. C. 171. Same — Same — As condition precedent to action. — See 10 L. 558. Same — Same — As waiver of notice of loss. — See 10 L. 560. Same — Same — As waiver of proof of loss. — See 10 L. 560. Same — Waiver of provision for submission to. — See 10 L. 558. Arson with respect to insured property. — See Pen. C. § 548 and note. Assessments — Failure to pay between day of accident and time of death, effect of. — See 26 L. 112. Same — Forfeiture for nonpayment of. — See 9 L. 189; see "Forfeiture," this note. Same — Liability of member of benefit society to action for. — See 23 L. 435. Same — Remedy for refusal to levy. — See 1 L. 246; 2 L. 786; 8 L. 115. Assessment company — Right to change from assessment to level policies. — See 1 L. N. S. 623. Same — Right to change to level premium. — See 4 A. C. 361. Assignability — As security for debt. — See 9 L. 662. Same — Necessity that assignee have an insurable interest in life. — See 9 L. 661. Same — Of endowment. — See 9 L. 661. Same — Of life insurance policy. — See 9 L. 660. Same — Of policy taken out by wife on husband's life. — See 9 L. 663; 10 L. 259. Same — Transferees of policy as members of mutual fire in- surance company. — See 32 L. 482. Assignment of, when valid and what constitutes. — See 56 A. D. 747. 1298 Tit.XI.ch.I.art.L] insurance, generally. § 2527 Attaching application to policy, wliat a sufficient. — See 18 L. N. S. 1190. Authority of insurance agency — As to, generally, see 2 A. C. 97. Same — Effect of limitation on agent's authority to waive con- ditions in insurance policy. — See 2 A. C. 112; 9 A. C. 380. Same — Right of insurance agent to commission on renewal premiums after termination of agency. — See 7 A. C. 1169. Bankrupt, life insurance as assets of. — See 50 L. 33. Bankruptcy or insolvency proceedings or assignment for benefit of creditors, effect of on fire insurance. — See 15 L. N. S. 827. Bawdy-house or furniture, insurance thereon. — See 18 L. N. S. 214. Beneficiary — Change of — As to generally, see 5 L. 95; 15 L. 350; 63 L. 862. Same — Same — By will. — See 4 L. N. S. 939. Same — Effect of becoming self-supporting on mutual benefit certificate. — See 7 L. N. S. 393. Same — Power of insured to destroy rights of — In case of benefit societies. — See 49 L. 749. Same — Same — In case of regular life policy. — See 49 L. 737. Same — Right to change as affected by consideration from beneficiary originally named. — See 12 L. N. S. 1206. Same — Statute permitting cliange of as affecting riglits of under policy previously issued.— See 8 L. N. S. 923. Same — Who may be considered as "dependent" within re- strictions as to, of mutual benefit associations. — See 2 L. N. S. 653. Benefit association — Certificate in — As to generally, see 2 L. 788; 5 L. 98; 8 L. 113; 12 L. 210. Same — Same — Construction of. — See 8 L. 113. Same — Conflict between by-laws and certificate. — See 47 L. 681. Same — Distinction of certificate in, and life policy. — See 5 L. 98; 12 L. 210. Same — Is it an insurance company. — See 38 L. 33-54. Same — Liability of member to action for assessment. — See 23 L. 435. Same — Power of insured to destroy rights of beneficiary. — See 49 L. 749. Same — Powers of members of. — See 2 L. 163. Same — Previous rejection by, as declination or refusal of insurance within meaning of application for life insurance. — See 4 L. N. S. 247. Same — Rights of members of as affected by by-laws. — See 5 L, 96. Same — Rules of pleading in action on certificate of. — See 2 L. 788. 1299 § 2527 CIVIL CODE. [Div.III.Pt.IV. Same — Who are members of "family" within contract of. — See 3 L. N. S. 334. Same — Who may be considered as "dependent" within restric- tions as to beneficiaries. — See 2 L. N. S. 653. Benefit certificates — Effect of adoption of by-laws by frater- nal insurance order upon those already issued. — See 1 L. N. S. 1065. Benefit insurance — Forfeiture of certificate of by default of subordinate lodge.- — See 50 L. Ill; see "Benefit association," this note. Benefits issued by company as evidence of meaning of con- tract. — See 5 L. 808. Betrothed wife — Right to insure life of promised husband. — See 53 L. 825. Same — Validity of life insurance for benefit of. — See 19 L. 187. Bicycles, of. — See 47 L. 307. Bond for title, effect of to defeat unconditional and sole owner. — See 5 L. N. S. 512. Books of account, admissibility to prove amount and value of insured goods. — See 52 L. 721. Breach, by tenant or mortgagee, effect of on policy. — See 12 L. N. S. 84; 18 L. N. S. 197. Burden of proving breach of condition under accident policy. —See 13 L. 263. By-laws — Conflict between, and certificate or policy of a mutual benefit society or insurance company. — See 47 L. 681. Same — ^Effect of adoption of by fraternal insurance order upon benefit certificates already issued. — See 1 L. N. S. 1065. Same— Of benefit society — Conflict between, and certificate or policy. — See 47 L. 681. Same — Same — Rights of members as affected by. — See 5 L. 96. Same — Reasonableness of new, as implied condition of con- sent to change of.- — See 8 L. N. S. 521. Same — Retroactive effect of, of mutual insurance company changing period during which policy may be contested for suicide. — See 12 L. N. S. 504. Same — Rights of members of benefit society as affected by. — See 5 L. 96. Cancelation of policy, authority of as to respecting. — See 10 L. 144. Carrier, subrogation of to rights against insurer. — See 3 L. 426. Cause of loss or death — Admissibility of findings of coroner to show cause of death. — See 68 L. 288. Same — By explosion. — See "Explosion," this note. Same — By lightning. — See 26 L. 267. Same — By suicide. — See "Suicide," this note. 1300 Tit.XI.ch.I.art.l.] INSURANCE, GENERALLY. § 2527 Same — By voluntary exposure to unnecessary danger. — See 40 L. 432. Same — Death by medical treatment. — See 3 L. 486. Same — Death caused l>y crime. — See 6 L. 495; 9 L. 685. Same — Death while under influence of liquor. — See 3 L. 486. Same — Death while violating- law. — See 3 L. 486; 13 L. 838. Same — Restrictions as to occupation and employment in pol- icy of insurance. — See 9 L. 685. Same — Under accident polic5-. — See "Accident policy," this note. Certificate in benefit association — As to, generally, see 8 L. 113, Same — Distinction between, and life policy. — See 5 L. 98; 12 L. 210. Same — Rules of pleading in action on. — See 2 L. 788. Certificate of magistrate, necessity for, and waiver of. — See 23 A. S. 258. Change of beneficiary. — See "Beneficiary." this note. Change of risk — Condition as to. — See 4 L. 538. Change of title or interest — Effect of on insurance, gener- ally, see 4 L. 539, 541; 9 L. 627; 11 L. 293. Same — Transfer by one partner of his interest to other mem- bers of firm as a prohibited change or alienation of interest. — See 18 L. 482. Commissioner of insurance. — See Pol. C. §§ 594-643 and notes. Concealment or misrepresentations, when avoid. — See 35 A. R. 629. Conditions of contract or policy — As to keeping and producing books and papers — Keeping books and vouchers — See 51 L. 699. Same — Same — Keeping books or vouchers in a safe or safe place. — See 51 L. 709. Same — Same — Producing liooks and papers. — See 51 L. 702. Same — Against ceasing to operate mill or machinery. — See 8 L. 81. Same — Against change of risk. — See 4 L. 538. Same — Against increase of risk. — See 10 L. 359. Same — Against incumbrance — Generally, see 1 L. 218; 4 L. 538. Same — Same — Effect of upon renewal, substitution, or altera- tion of incumbrance upon Insured property. — See 20 L. 400. Same — Same — What constitutes a breach of. — See 8 L. 73. Same — Against keeping petroleum or other inflammable fluids, when violated. — See 37 A. R. 650. Same — Against other insurance. — See 4 L. 848; 49 L. 208. Same — Against vacancy and non-occupancy. — See 8 L. 79; 9 L. 81, 82. Same — Breach of, burden of proof as to. — See 13 I>. 263. Same — Inception of policy. — See 13 L. N. S. 826-870. 1301 § 2527 CIVIL CODE. [Div.III,Pt.IV. Same — Requiring payment before delivery of policy, waiver of. — See 57 A. R. 514. Same — Taking- effect, effect of stipulations as to. — See 17 L. N. S. 1144-1156. Same — That books and inventories be kept in a safe, what books, etc., necessary to comply with the requirements of the iron-safe clause. — See 15 L. N. S. 471. Same — Waiver of conditions or defense based on. — See 1 L. 222; 1 L. 563; 8 L>. 74. Cor^i'^t of laws, as to in construction of contract of insur- ance. — See 63 L. 856. Consciousness of dangers, effect of on provision as to vol- untary exposure to unnecessary danger. — See 40 L. 434. Consent of person whose life is insured as a condition prece- dent. — See 56 L. 586. Constitutionality of statutes providing damages or penalty for refusal or failure of insura^nce company to pay losses. — See 5 A. C. 405. Construction of contract — As to, generally, see 5 L. 799, 808; 7 L. 217; 11 L. 340; 13 L. 263. Same — Certificate of benefit society, of. — See 8 L. 113. Same — Same — Distinction between and life policy. — See 5 L. 98; 12 L. 210. Same — Conflict between by-laws and certificate, or policy of mutual benefit society or insurance company. — See 47 L. 681. Same — Conflict of laws as to. — See 63 L. 856. Same — Effect of rider on slips attached to insurance poli- cies. — See 30 L. 636. Same — First and last days in computing time as to life of policy. — See 49 L. 208. Same — Nature of risk under insurance against loss by light- ning. — See 26 L. 267. Same — Pamphlets issued by company as evidence of mean- ing. — See 5 K 808. Same — Of reinsurance. — See 10 L. 423. Same — Rights of members of benefit society as affected by by- laws. — See 5 L. 96. Same — Strict, of clause operating by way of forfeiture. — See 4 L. 538. Same — When contract entire and when severable. — See 8 L. 834. Constructive total loss of insured buildings — As to, gener- ally, see 56 L. 784-792. Contract or policy of — As to, generally, see 2 A. C. 17; 2 A. C. 99; 9 A. C. 916; 24 L. 296; 63 L. 833-867. Same — Actions on. — See "Actions on contract of," this note. Same — Cancelation and forfeiture of, as to, generally, see 7 1302 Tit.XI,ch.I,art.I.] INSURANCE, GENERALLY. §2527 L. N. S. 1163; 10 L. N. S. 198; 12 L. -N. S. 881; 13 L. N. S. 805; 13 L. N. S. 889; 17 L. N. S. 246; 18 L. N. S. 902; 18 L. N. S. 1219. Same — Conditions — Against incumbrances. — See 1 L. 18; 4 L. 538; 8 L. 73; 20 L. 400. Same — Same — As to keeping and producing books and pa- pers.— See 51 L. 699. Same — Same — Location of movable property. — See 26 L. 267. Same — Same — Other insurance. — See 4 L. 848; 10 L. 359; 11 L. 299; 49 L. 208. Same — Same— Title and change of interest. — See 4 L. 539; 9 L. 627; 11 L. 293; 18 L. 481, 482; 38 L. 562-565. Same — Same — Title and increase of risk — As to generally, see 1 L. 222; 1 L. 563; 4 L. 538; 8 L. 74, 79, 81; 13 L. 263. Same — Construction of — As to generally, see "Construction," this note. Same — Damage or penalty for refusal or failure of insurance company to pay loss, constitutionality of statutes providing. — See 5 A. C. 405. Same — Divisibility of insurance companies. — See 2 A. C. 22; 11 A. C. 805. Same — Effect of general notification by agent of arrival of policy, when the company has substituted another form of policy for that applied for. — See 12 L. N. S. 421. Same — Effect of rejection of portion of application. — See 5 L. N. S. 739. Same — Entire when and when severable. — See 8 L. 834. Same — Forfeiture and suspension — As to generally, see 1 L. 256; 2 L. 118; 4 L. 538; 5 L. 806; 9 L. 189; 9 L. 317; 14 L. 283; 26 L. 112; 49 L. 208; 50 L. 111. Same — Same — Paid up and nonforfeiting policy of life in- surance. — See 15 L. 449. Same — Incontestability, provision as to, see 47 L. 247-261. Same — Insurance on bawdy-house or furniture therein. — See 18 L. N. S. 214. Same — Liability on, issued by domestic corporation upon the life of a non-resident to local transfer tax. — See 10 L. N. S. 1089. Same — On life of minor. — See 57 L. 496. Same — Paid-up insurance, surrender value, extended insur- ance. — See 8 L. N. S. 193; 13 L. N. S. 1046; 16 L. N. S. 316. Same — Parol assignment of insurance policy, validity of. — See 5 A. C. 410. Same — Premiums and assessments — As to generally, see 1 L. 146; 2 L. 786; 8 L. 115; 14 L. 283; 20 L. 407; 23 L. 435; 57 L. 69. Same— Same — Notice, as to.— See 2 L. 118; 5 L. 806; 49 L. 208; 63 L. 862. Same — Reformation of. — See 2 L. 64; 3 L. 189: 5 L. 712; 6 L. 210; 6 L. 838; 2 L. N. S. 548; 11 L. N. S. 357; 12 L. N. S. 907. 1303 § 2527 CIVIL CODE. [DiV.III.Pt.IV. Same — Same — Action on, as bar to. — See 12 L. N. S. 907. Same — Representations and warranties — As to generally, see 1 L. 564; 7 L. 217; 8 L. 70; 10 L. 666; 13 L. 263; 39 L. 265; 63 L. 864. Same — Same — False representation as to previous application for insurance.— See 55 L. 122-138. Same — Same— Innocent misrepresentation as to help, effect of. — See 53 L. 193. Same — Requisite of a present oral contract of insurance. — See 5 I-., N. S. 407. Same — Termination of — As to generally, see 8 L. 719; 10 L. 144; 30 L. 69. Same — Same — Effect of expulsion from society. — See 25 L. 149. Same — Validity of fire insurance on property illegally used. — See 40 L. 845. Same — Validity of, in violation of statute. — See 12 L. N. S. 612. Same — Validity of life insurance to secure debt of insurer. — See 53 L. 462. Same — Validity of oral. — See 6 A. C. 624; 22 L. 768-772. Same — Validity of statute providing shall not be avoided for immaterial false warranty. — See 7 A. C. 1107. Same— Waiver of conditions by insurer's failure to inquire into existing facts. — See 9 A. C. 994. Same — When complete. — See 69 A. S. 143. Same — ^When is consummated. — See 9 A. C. 220. Contract to convey, as breach of condition in insurance pol- icy against change in title or interest. — See -3 L. N. S. 107. Contributory negligence as a defense in suit under accident policy.— See 13 L. 266. Co-operative, infants as members of. — See 17 L. 547. Corporation, insurance of officer of for benefit of. — See 16 L. N. S. 1020. Cousins, have an insurable interest in a life. — See 14 L. N. S. 1172. Creditor — Insurable interest — In life of debtor. — See 2 L. 844. Same- — -Insurance in behalf of.— See 53 L. 462-465. "Cyclone," meaning of in insurance policy. — See 8 L. N. S. 308; 2 W. & P. 1809. Damages or penalty for refusal or failure of insurance com- pany to pay losses, constitutionality of statutes providing. — See 5 A. C. 405, Days of grace, in payment of premium on policy. — See 14 L. 284. Death — As a disability.— See 38 L. 537. Same — Caused by crime. — See 6 L. 495; 9 L. 685. Same — Caused by medical treatnrient. — See 3 L. 486. 1304 Tit.XI.ch.I.art.I.] INSURANCE, GENERALLY. § 2527 Same — While committing a public offense. — See 9 L. 686. Same — While traveling-. — See 9 L. 686. Same — While under influence of liquor. — See 3 L. 486. Same — While violating law. — See 3 L. 486; 13 L. 838. Same — ^While violating rules of insurance company. — See 9 L. 686. Default — Forfeiture by reason of. — See "Forfeiture," this note. Same — Of subordinate lodge, forfeiture of benefit certificate by.— See 50 L. 111. Defense — Based on conditions, waiver of. — See 1 L. 222; 1 L. 563; 8 L. 74. Delivery of policy. — See Kerr's Cyc. C. C. § 2586 and note pars. 14-18. "Dependent," who may be considered as within restrictions as to beneficiaries in mutual benefit associations. — See 2 L. N. S. 653. Description of insured property, mistakes in. — See 16 A. D.' 462. Determination as to, by tribunals of association. — See 49 L. 363, 372. Distinction between certificate in benefit society and life policy.— See 5 L. 98; 12 L. 210. Distribution of assets of insolvent insurance company — Con tract rights. — See 38 L. 110. Same — Priorities on. — See 38 L. 103. Same — Special funds. — See 38 L. 108. Same — Valuation and adjustment of claims. — See 38 L. 100 Same — Who to make. — See 38 L. 97. Distribution of surplus upon dissolution of mutual insurance company. — See 3 L. N. S. 653. Dividends, application of to interest in case of paid-up and nonforfoiting policy of life insurance. — See 15 L. 453. Divisibility of insurance contracts. — See 2 A. C. 22; 11 A. C. 805. Divorce, as affecting wife's liglit to insurance upon husband's life.— See 50 L. 552, Double insurance — Definition of. — See 88 A. D. 477; 28 A. S. 821; 15 L. 127; 1 L. ed. 867; 3 W. & P.- 2185. Same — Insurance by carrier and by owner of goods as. — See 11 A. C. 960. Same — What constitutes for purposes of apportionment of loss. — See 15 L. 127. Drowning, as an accident within accident policy. — See 30 L. 211. Duty of insured to submit to examination and furnish infor- mation. — See 52 L. 424. Duty to notify insurer of facts which develop after submis- 1305 § 2527 CIVIL CODE. [Div.III.Pt.IV. sion of application, but before delivery of policy or certifi- cate. — See 8 L. N. S. 983. Effect of condition against other insurance in same com- pany.— See 5 L. N. S. 579, Effect of limitation on agent's authority to waive conditions in insurance policy.— See 2 A. C. 112; 9 A. C. 380. Effect of receipt of insurance money — To mitigate damages for personal injuries. — See 67 L.. 87. Same — To mitigate damages for wrongful death. — See 67 L. 92. Effect of stipulations seeking to make agent of insurer agent of the assured. — See 77 A. D. 724. Effect on insurance upon building of forfeiture as to per- sonal property. — See 19 L. 217. Employment, restrictions as to in accident policy of insur- ance. — See 9 Li. 685. Entirety of, policy void as to part of property, whether void in toto.— See 74 A. D. 498; 38 A. R. 230. Estoppel. — See "Waiver," this note. Same — Bad faith of assured as affecting, of insurer to set up falsity of answers in application, because of agent's knowledge of such falsit5^ — See 14 L. N. S. 279. Same — By application made out by agents. — See 9 A. S. 229. Same — By insurer's election to rebuild. — See 26 L. 857. Same — Effect of agent's insertions in the application of false answers to the questions correctly answered by insured. — See 4 L. N. S. 607. Same — Effect of insurance agent's mistake in designating lo- cation of property. — See 2 L. N. S. 548. Same — Effect of knowledge of agent acting in two capacities. —See 3 L. N. S. 444. Same — Knowledge of fraud of insurer's agent. — See 5 L. 646; 16 L. 33. Same — Of mutual benefit society by misrepresentation as to loss of the order. — See 14 L. N. S. 540. Same — Parol evidence as to varying or contradicting written contracts as affected by the doctrine of. — See 16 L. N. S. 1165- 1264. Same — Provisions in the insurance policy in respect to va- cancy as affected by agent's representations or knowledge. — See 4 L. N. S. 758. Same — Retention of policy. — See "Waiver," this note. Exemption of proceeds of insurance. — See 19 L. 34. Explosion — ^Effect of escape and explosion of gas upon lia- bility of insurer. — See 29 L. 359. Same — Liability of insurer for loss caused by. — See 19 L. 594. Expulsion from benefit society, effect of. — See 25 L. 149. Extent of injury — Conflict of laws as to value of policy. — See 63 L. 866. 1306 Tit.XI,ch.I,art.I.] INSURANCE. GENERALLY. § 2527 Same — Constructive total loss of insured building — As to, generally, see 56 L. 784-792. Same — How far aggregate of several policies is binding as to value of insured property. — See 26 L. 107. Same — Insurer's option to rebuild. — See "Option to rebuild," this note. Same — Laws governing as to damages and interest ex mora. — See 63 L. 868. Same — Marine insurance. — See "Marine insurance," this note. Same — Measure of recovery as affected by insurable inter- est. — See 2 L. 845. Same — What constitutes double insurance for purposes of apportionment of loss. — See 15 L. 127. Same — What constitutes total disability — As to, generally, see 38 L. 529-539. Extrahazards, effect of. — See 11 L. 299. Extrinsic evidence to control or vary policy. — See 2 A. D. 364. Failure to pay assessment between day of accident and time of death, effect of. — See 26 L. 112; "Forfeiture," this note. False representations as to previous application for insur- ance.— See 55 L. 122-138. False warranty, immaterial, validity of statutes providing that insurance contract shall not be avoided for. — See 7 A. C. 1107. "Family," who are members of within contract of benefit so- ciety.— See 3 L. N. S. 334. Fidelity, nature of, and rules governing. — See 100 A. S. 774; also note § 2772, post. Fire^Alterations in premises, when avoid policy. — See 26 A. S. 407. Same — Conclusiveness of as against insured or beneficiary. — See 44 L. 856. Same — Conditions — As to use of premises, construction of. — See 30 A. S. 731. Same — Same — Requiring notice of other insurance to be in- ■ dorsed on the policy. — See 64 A. D. 221. Same — Forfeiture, hazard, increase of, what results in. — See 66 A. S. 691. Same — Loss by, what included in. — See 45 A. D. 657. Same — Loss, total, what is. — Sec 59 A. S. 810. Same — Overvaluation of insured property, effect of. — See 29 A. D. 616; 25 A. R. 74. Same — Right of insurer to rebuild or repair.— See 11 A. R. 57. Same — Use or keeping of forbidden materials, when avoids policy. — See 24 A. R. 150. Same — What property included within policies respecting. — See 22 A. R. 253. First and last days in computing time on — As to generally, see 49 L. 208. 1307 § 2527 CIVIL CODE. [DiV.III.Pt.IV. Same — As to life of policy. — See 49 L. 208. Same — Of nonpayment of premium or assessment. — See 49 L. 208. "For whom it may concern. "-^See 16 A. D. 323. Foreign insurance companies— Effect of location of insured property within the state to prevent action by foreign insur- ance company on contract made in another state. — See 9 L. N. S. 417. Same — Effect on insurance where the statutes regulating the business of, haA'e not been complied with. — See 20 L. 405-409. Same — Exclusion of. — See 24 L. 312. Same — Not complying with the law, right to enforce domes- tic contract. — See 9 A. C. 338. Same — Restriction on business of. — See 24 L. 298-303. Same — Revocation of license of on account of removal of ac- tion to Federal court. — See 1 L. N, S. 1019. Forfeiture — -As to, generally, see 2 A. C. 99; 8 A. C. 497. Same — Acts and knowledge of agents, when prevent. — See 9 A. S. 236. Same — By failure to furnish proof of loss or death within a stipulated time. — See 18 L. 85. Same — Conflict of laws as to. — See 63 L. 862. Same — Discontinuance of cause of, whether revives. — See 80 A. S. 305. Same — Effect of failure to pay assessment between day of accident and time of death.— See 26 D. 112. Same — Effect on assignee 6f assignor's act of. — See 18 L. 136. Same — Estoppel to insist upon because of knowledge of agent. — See 26 A. R. 370. Same — First and last day of computing time in case of non- payment. — See 42 L. 908. Same — For breach of a promissory warranty. — See 2 A. C. 99. Same — For nonpayment of assessment.— See 9 L. 189. Same — For nonpayment of premium. — See 5 L. 806. . Same — Same— Waiver of. — See 1 L. 256; 9 L. 317. Same — For nonpayment of premium note. — See 9 L. 317. Same — Not favored in law. — See 2 L. 118; 9 L. 199. Same — Occurring after issuance of policy and before loss. — See 10 L. N. S. 1064-1089. Same — Of benefit certificate by default of subordinate lodge. — See 50 L. 111. Same — Reinstatement.— See "Reinstatement," this note. Same — Silence or failure to act by insurer having notice of breach of condition in policy, as waiver of forfeiture for breach. — See 8 A. C. 500. Same — Strict construction of clause providing for. — See 4 L. 538. Same — Waiver of. — See 15 L. 454. 1308 Tit.XI,ch.I,art.I.] insurance, generally. § 2527 Same — Same — For nonpayment of premium. — See 1 L. 2iJG; 9 L. 317. Fraud — As to terms of policy, waiver of by retention of pol- icy. — See 67 L. 70S. Same — By agent, effect of ex necessitate in making proofs of loss under fire insurance policy. — See 9 L. N. S. 485. Same — Effect of on contract of insurance. — See 19 L. 218. Habits or occupation of insured, time covered by provision or representation with respect to. — See 5 L. N. S. 283. "Hazardous" and "extrahazardous," meaning of.^See 97 A. D. 798; also 4 W. & P. 3224. Hazardous and prohibited articles kept in the ordinary course of business. — See 24 A. R. 150. Health consultation^ — "What constitutes consultation witli, or attendance by, a physician, within ineaning of application for life insurance, — See 18 L. N. S. 362. "Heirs," who are within life policy. — See 30 L. 583; 63 L. 856. Illness — Effect of incapacitating on failure to pay insurance premium when due. — See 12 L. N. S. 319. Incontestable clause — Application of to non-payment of pre- miums. — See 6 L. N. S. 1039. Same — Defense of want of insurable interest, as affected by. — See 5 L. N. S. 747. Same — Effect of incontestable clause where insured is in poor health when policy is delivered. — See 6 L. N. S. 1064. Same — Provision as to. — See 47 L. 247-261.. Same — Validity of provision for, from specified date. — See 2 L. N. S. 821. Incontestability, provision as to, see 47 L. 247-261; see "In- contestable clause," this note. Increase of risk — By change of occupation of person. — See 10 L. 383. 388. Same — Condition against. — See "Conditions," this note. Same — Effect of extrahazards. — See 11 L. 299. Same — Provisions against. — See 10 L. 359. Indemnity insurance — Arrangements by masters with insur- ance company for indemnity of servants. — See 11 L. N. S. 194. Same — Construction of policy of contract insuring against loss of rents. — See 16 L. N. S. 1055. Same — How far docs limitation of liability in policy against liability for injuries to employees and others include expenses of litigation. — See 12 L. N. S. 478. Same — Injured employee's right to reach fund under em- ployer's liability policy. — See 7 L. N. S. 958. Same — Loss and settlement — Giving note as loss for damage with contents for contract of indemnity. — See 9 L. N. S. 478. Same — Same — Power of insurer with respect to settlement of claims. — See 6 L. N. S. 562. 1309 § 2527 CIVIL CODE. [Div.III,Pt.IV. Same — Waiver of short-limitation by efforts at compromise extending- beyond its termination. — See 9 L. N. S. 654. Infants as members of co-operative company. — See 17 L. 547. Insanity, effect of incapacitating on failure to pay insurance premium when due. — See 12 L. N. S. 319. Insolvent, life insurance as assets of. — See 50 L.. 33. Insurable interest — Defense of want of as affected by incon- testable clause of policy. — See 5 L. N. S. 747. Same — In life — As to generally. — See 1 L. 238; 2 L. 844; 6 L. 136; 7 L. 218. Same — Same — Consent of person whose life is insured as a condition. — See 54 L. 233; 56 L. 586. Same — Same — Defense of want of, as affected by incontestable clause. — See 5 L. N. S. 747. Same — Same — Designation as beneficiaries of one without in- surable interest, as affected by considerations of public policy. — • See 16 L. N. S. 555. Same — Same — Have cousins an insurable interest in life. — See 14 L. N. S. 1172. Same — Same — Insurance on life of officer of corporation for benefit of the corporation. — See 16 L. N. S. 1020. Same — Same — Of another, and necessity of. — See 57 A. D. 93; 46 A. R. 189; 52 A. R. 135; 58 A. R. 852. Same — Same — Of blood relation. — See 54 L. 225-233. Same — Same — Of creditor in life of debtor. — See 2 L. 844. Same — Same — Right to take life insurance for benefit of stranger. — See 25 L. 627. Same — Same — Validity of life insurance for benefit of be- trothed wife. — See 19 L. 187. Same — Same — Wager policy. — See 6 L. 137; 7 L. 217; 12 L. 409; 13 L. 434. Same — Same — Who is member of "family" in contract of bene- fit society. — See 3 L. N. S. 334. Same- — Same — Who may be considered as "dependent" within restrictions as to beneficiaries of mutual benefit associations. — See 2 L. N. S. 653. Same — Same — Wife's right to insure life of husband. — See 53 L. 817-825. Same — In property — By contractor in building in course of erection. — See 43 L. 664. Same — Same — In unfinished building during course of con- struction by contractor. — See 43 L. 664. Same — Same — Of husband in wife's property. — See 66 L. 657- 661. Same — Same — Of one secondarily liable on an obligation where the property is primarily chargeable with the same. — See 9 L. N. S. 490. Same— Same— What is.— See 7 A. D. 42; 20 A. D. 510; 11 L. 598. 1310 Tit.XI,ch.I,art.I.] INSURANCE, GENERALLY. § 2527 Insurance — On buildings and contents, severability of con- tract.— See 19 L. 214. Same — On several articles of personal property, severability of contract. — See 19 L. 217. Same — On several buildings, severability of contract. — See 19 L. 212. Insurance corporations. — See Kerr's Cyc. C. C. §§ 414-453p and notes. Insurer, subrogation of to rights of insured against carrier. — See 3 L. 426. Interest in proceeds — As to, generally, see 3 L. 426; 13 L. *434; 17 L. 438; 19 L. 34; 63 L. 862. Same — Adopted children, right of under insurance policy. — See 17 L. 438. Same — Divorce as affecting wife's right to insurance upon husband's life. — See 50 L. 552. Same — Exemption of. — See 19 L. 34. Same — "Heirs," who are within life policy. — Sec 30 L. 593; 63 L. 856. Same — In creditor's policy on life of debtor. — See 13 L. 434. Same — "Legal representatives," who are within life policy. — See 30 L. 609. Same — Life insurance as assets of bankrupt or insolvent. — See 50 L. 33-46. Same — Mortgagee, rights of. — See 19 L. 321; 25 L. 305; 25 L. 679. Same — Subrogation of carrier to rights against insurer. — See 3 L. 426. Same — Subrogation of insurers to rights of insured against carrier. — See 3 L. 426. Same — Vendor and vendee, rights of to proceeds. — See 37 L. 150. Interpretation of contract, as to. generally, see 13 li. 263; also "Construction of contract," this note. Iron-safe clause in insurance policy, what books and In- ventories must be kept in, to comply witli. — See 15 L. N. S. 471. I^aw of state of Incorporation as limitation upon powers of insurance company. — See 63 L. 853. "Legal representatives," who are within life policy. — S<-o 30 L. 609. Level premium, riglit of insurance company to cliango from assessmmt to. — See 4 A. C. 361. Inabilities of officers of mutual company to members for permitting diversion of funds. — See 12 L. N. S. 165. Liability of funds held by mutual benefit societies to the claims of their creditors. — See 6 L. N. S. 235. 1311 § 2527 CIVIL. CODE. [Div.III.Pt.IV. Life — Agents accepting insurance when they know answers in the application are false. — See 7 A. R. 128. Same — Assignee, whether must have an insurable interest. — See 27 A. R. 327. Same — Assignment of policies of. — See 87 A. S. 484. Same — Assignment of to one having no interest in the life insured. — See 16 A. S. 906. Same — Beneficiary— Results of the death of before that of the person whose life is insured. — See 11 A. S. 721. Same — Same — When not entitled to sue for. — See 19 A. R. 331! Same — Conclusiveness of adjustment of loss as against in- suered upon beneficiary. — See 45 L. 450. Same — Conflict of laws respecting nonforfeiture of policy. — See 104 A. S. 483. Same — Death by voluntary exposure to unnecessary danger, hazard, or perilous adventure, what is. — See 12 A. S. 272. Same — Death is known violation of law. — See 60 A. S. 160. Same — Death resulting from a criminal act. — See 21 A. R. 542. Same — Disease existing at time of application, when avoids policy of. — See 3 A. S. 634. Same — Fraud on creditors, whether results from withdrawal by debtor of moneys for procuring. — See 88 A. D. 530. Same- — Fraudulent as to creditors, when. — See 29 A. S. 360. Same — Good health, what is within the meaning of the law of.— See 10 A. S. 242. Same — Insurable interest — When exists. — See 57 A. D. 93; 46 A. R. 189; 52 A. R. 135. Same- — Same — Whether policy may be made payable to a person having none. — See 58 A. R. 852. Same — Premiums, nonpayment of due to war. — See 19 A. R. 512. Same — Suicide as a defense. — See 59 A. D. 487; 3 A. R. 454; 19 A. R. 628; 84 A. S. 539. Same — ^Warranty of sober and temperate habits, what con- stitutes breach of. — See 38 A. R. 615. Same — When regarded as wagering contract because of the small insurable interest. — See 60 A. R. 729. Lightning, insurance against loss by, nature of risk under. — See 26 L. 267. Limitation of actions on policies of. — See 28 A. S. 583. Limitation of time — Contractual, in which to bring action on policy of insurance— Validity of. — See 1 L. 847; 3 L. 344; 8 L. 48. Same — Estoppel to plead defense of limitation. — See 63 L. 204. Same- — ^Flrst and last days in computation of time. — See 49 L. 208. Same — Law governing. — See 63 L. 868. 1312 Tit.XI,ch.I,art.I.] insurance, generally. §2527 Same — When begins to run. — See 47 L. 697-711. Lloyd policies, action on. — See 55 L. 193. Location of movable property — As affecting fire insurance thereon. — See 26 L. 237-242. Same — As affecting lightning insurance. — See 22 L. 267. Loss and its adjustment — Actions on. — See "Actions," this note. Same — Arbitration. — See "Arbitration," this note. Same — Cause of loss or death. — See "Cause of loss or death," this note. Same — Conclusiveness of as against insured or beneficiary. — See 44 L. 846-860. Same — Same — In fire insurance. — See 44 L. 856. Same — Same — In life insurance. — See 44 L. 850. Same — Duty of insured to submit to examination and fur- nish information. — See 52 L. 424. Same — ^Explosion, liability of insurer for loss caused by. — See 19 L. 594. Same — Same — Effect of escape and explosion of gas upon liability to insurer. — See 29 L. 359. Same — Extent of injury. — See "Extent of injury," this note. Same — Interest in proceeds — As to generally, see 13 L. 434; 17 L. 438; 19 L. 34; 34 L. 426; 63 L. 862; also "Interest and pro- ceeds," this note. Same — Same — And change of beneficiary. — See 3 L. N. S. 478; 3 L. N. S. 727; 3 L. N. S. 907; 4 L. N. S. 456; 4 L. N. S. 939; 6 L. N. S. 448; 7 L. N. S. 393; 8 L. N. S. 923; 10 L. N. S. 1166; 11 L. N. S. 143; 11 L. N. S. 234; 12 L. N. S. 1206; 13 L. N. S. 152; 13 L. N. S. 909; 17 L. N. S. 1083. Same — Same — Divorce as affecting wife's riglits to insurance upon husband's life. — See 50 L. 552. Same — Same — Divorce, effect of on rights of beneficiary. — See 3 L. N. S. 478. Same — Same — Failure of beneficiary, disposition of fund by mutual benefit society upon. — See 17 L. N. S. 1083. Same — Same — "Heirs," who are legal to whom fund is pay- able.— See 3 L. N. S. 904. Same — Same — "Heirs," who are within life policy. — See 30 L. 593; 63 L. 856. Same — Same — Insurance company's right to recover back money paid in settlement of policy on life of one erroneously supposed to be dead. — See 11 L. N. S. 234. Same — Same — "Legal representatives," who are within life policy. — See 30 L. 609. Same — Same — Life insurance as assets of bankrupt or in- solvent. — See 50 L. 33-46. Same — Same — Mortgagee to hold proceeds of insurance and apply on indebtedness as it falls due. — See 10 L. N. S. 1166. Kerr's C. C— 42 1313 § 2527 CIVIL CODE. [Div.III.Pt.IV. Same — Same — Mortgagor's right in interest in insurance se- cured by mortgagee to protect his own interests. — See 11 L. N. S. 143. Same — Same — Murder of insured as affecting right to insur- ance. — See 3 L. N. S. 727. Same — Same — Principal's right to proceeds of insurance on policy taken out by agent in his own namt. — See 13 L. N. S. 152. Same — Same — Rights of mortgagee in proceeds. — See 19 L. 321; 25 T>. 305; 25 L. 6^79. Same— Same — Rights of vendor or vendee to proceeds. — See 37 L. 150. Same — Same — Vendor's right to proceeds of insurance policy in name of vendee. — See 13 L. N. S. 909. Same — Same — "Where loss occurs after foreclosure sale, but during period of redemption. — See 6 L. N. S. 448. Same- — -Notice and proof of loss. — See 9 L. N. S. 485; 14 L. N. S. 459; 14 L. N. S. 503; 16 L. N. S. 400; 18 L. N. S. 106, 109. Same — Proof of loss or death. — See "Proof of loss or death," this note. Same— Risks and causes — Of death or injury. — See 1 L. N. S. 422; 2 L. N. S. 168; 4 L. N. S. 636; 5 L. N. S. 657; 5 L. N. S. 926; 6 L. N. S. 609; 8 L. N. S. 970; 8 L. N. S. 1014; 10 L. N. S. 957; 13 L. N. S. 258; 14 L. N. S. 356. Same — Same — Of loss or injury to property. — See 1 L. N. S. 1095; 8 L. N. S. 308; 14 L. N. S. 1161; 17 L. N. S. 189. Same — Submission to arbitration. — See "Arbitration," this note. Same — Subrogation, as to, generally, see 2 L. N. S. 922; 3 L. N. S. 79; 18 L. N. S. 211. Same — Suicide. — See "Suicide," this note. Same — Same — As a defense. — See 17 L. 89; 33 L. 867; 42 L. 253. Same — Same — Insanity as affecting condition as to suicide. — See 35 L. 258-266. Same— Under accident policy. — See 3 L. 443; 9 L. 371; 9 L. 687; 13 L. 263, 264; 17 L. 753; 30 L. 211. Same — Same — What constitutes an accident within policy. — See 30 L. 206. Same — Validity of provision of accident or health policy re- quiring notice of accident or sickness within specified time. — See 18 L. N. S. 106. Same— Voluntary exposure to unnecessary danger, effect of. — See 43 L. 432. Loss by fire, what included within. — See 23 A. S. 915. Losses for which insurer is liable.^ — See 36 A. S. 852. Lunacy, as total disability. — See 38 L. 537. Marine insurance. — See Kerr's Cyc. C. C. §§ 2655-2746 and notes; also note § 2655, post. 1314 Tit.XI.ch.I.avt.I.] INSURANCE. GENERAI.T.Y. § 2r,27 Sanio — Effect of fraudulent exposure to peril upon liability. — See 1 L. N. S. 1095. Same— "Sue and labor," right to recover under clause In policy, for moving cargo over land. — See 14 L. N. S. 1161. Minor's life — Insurance on. — See note 57 L. 496-506. Misrepresentation — As to, generally, see 2 A. C. 299; 3 A. C. 821. Same— As to lioalth, innocent, by insured with undiscovered disease, see 53 L. 193-205. Same — As to previous application for insurance. — See 55 L. 122-138. Same — In application for insurance, law governing, as to effect of, see 7 I.. 217; 10 L. 666; 63 L. 864. Same — Made or induced by insurer's agent. — See 8 L. 70. Same — Validity of statute providing that insurance contract shall not be avoided for immaterial false warrants. — See 7 A. C. 1107. Mistake or fraud as to terms of policy, waiver of by reten- tion of policy. — See 67 L. 708. Mistakes and misrepresentations — Effect of honest mistake in answer as to health of insured, warranted by him to be true.— See 15 L. N. S. 1277. Misstatements — As to health and attendance of physician, see 10 Iv. 266. Same — As to occupation and use of premises, in adjustment of loss. — See 44 L. 858. Same — As to ownership in adjustment of loss. — See 44 L. 859. Same — In application for insurance, effect of. — See 7 L. 217; 10 L. 666. Same — Made or induced by insurer's agent. — See 8 L. 70. Morphinism of insur.^d as affecting policy of insurance. — See 39 K 2 65. Mortgage — As affecting change of title or interest in insured property.— See 38 L. 562-565. Mortgagee — Forfeiture of as against for breaches of condi- tion. — See 58 A. S. 667. Same — Right to bring suit in name of insured. — See 3 L. 525. Same — Rights of to proceeds of fire insurance policy. — See 19 L. 321; 25 L. 305; 25 I.. 679. Same — Rights of under an insurance on tiie mortgaged prop- erty.— See 54 A. D. 693. Murder of insured as affecting right to. — See 3 L. N. S. 727. Mutual benefit associations — Conflict between by-laws and certificate or policy of. — See 47 L. 681. Same — Estoppel of by misrepresentation as to loss of order. — See 14 L. N. S. 540. Same— Liability of funds held by, to tlie claims of their creditors. — See 6 L. N. S. 235. 1315 § 2527 CIVIL CODE. [Div.III.Pt.TV. Same — Right to increase rates of. — See 7 L. N. S. 1154. Same- — Who may be considered as "dependent" within re- strictions as to beneficiaries. — See 2 L. N. S. 653. Mutual fire insurance companies — Liability of members of — As to, generally, see 32 L. 481. Same — Same — Assessment. — See 32 L. 496-508. Same- — Same — Defenses against contract. — See 32 L. 490. Same — -Same — For what losses or obligations liable. — See 32 L. 487. Same- -Same — Guaranty members of. — See 32 L. 496. Same — Same — 'Notes of members. — See 32 L. 483. Same — Same — Termination, of liability.- — See 32 L. 492. Same- — Same — Who are members. — See 32 L. 482. Same^ — Transferees of policy or property as members of. — See 32 L. 482. Mutual insurance company — Distribution of surplus upon dis- solution of. — See 3 L. N. S. 653. Same — Liability of officers of to members for permitting diversion of funds. — See 12 L. N. S. 165. Same — Retroactive effect of resolution of by-laws of, chang- ing period during which policy may be contested for suicide. — See 12 L. 504. Same — When statute of limitations begins to run against unpaid balance on premium or "stock" notes of. — See 1 L. N. S. 914. Mutual or membership insurance — Life or accident, features of law specially applicable to. — See 52 A. S. 543. Same — Special features of.— See note 52 A. S. 543-579. Nature of risk under insurance against loss by lightning. — See 26 L. 267. Non-complying foreign insurance company, right to enforce domestic contract. — See 9 A. C. 338. Non-development of injury as affecting time for giving notice required by an accident insurance policy. — See 14 L. N. S. 503. Nonforfeiting policy of life insurance — As to generally, see 15 L. 449-455. Notice — And proof of loss. — See "Loss and its adjustment," this note. Same — Conflict of laws as to. — See 63 L. 862. Same — First and last days in computing time for. — See 49 L. 208. Same — Of nonpayment of premium. — See 5 L. 806. Same — Of premium due. — See 2 L. 118. Same — Of premium or assessment — Mode of proving mailing of. — See 7 L. N. S. 238. Same — Same — Necessity of. — See 7 L. N. S. 253. Same — To agent as notice to insurance company. — See 1 L. 563. 1316 Tit.XI,ch.I,ait.I.] INSURANCE, GENERATJ.V. § 2527 Same — To subagent, effect of. — See 21 L. 342. Occupancy — Condition for continuous. — See 8 L. 79; 9 K 81. Same — Wiiat constitutes. — See 9 L. 82. Occupation — Restrictions as to in accident policy of insur- ance. — See 9 L. 685. Of bicycles. — See 47 L. 307. Officer of corporation, insurance of life of fm mn.nt >>{ iIk- <-orporation. — See 16 L. N. S. 1020. (Md ago, as total disability. — See 38 L. 537. On mortgaged premises, application of proceeds of. — See 118 A. S. 968. On movable property including livestock, and the effect of removal. — See 95 A. D. 751. Option to rebuild — Construction and effect of. — See 26 L. 853. Same — Election final. — See 26 L. 855. Same — Election of insurer. — See 3 L. 170. Same — Election, right to control. — See 26 L. 856. Same — Estoppel. — See 26 L. 856. Same — E.xercise of, a matter of defense. — See 26 L. 857. Same — Insurer not liable for rent. — See 26 L. 856. Same — Right to control election. — See 26 L. 856. Same — Suit against builder. — See 26 L>. 851. Same — Time of. — See 26 L. 856, 857. Same — Waiver of. — See 26 L. 855. Oral assignment of insurance policy, validity of. — See 5 A. C. 410. Same — Contract of insurance, validity of. — See 6 A. C. 624. Oral contract of insurance, reciuisltes of present. — See 5 L. N. S. 407. Other insurance — Condition agaiiust taking out. — See 4 I^. 848. Same — First and last days in (.'tjrnpiiting time as to. — St^e 49 L. 208. "Other," what constitutes. — See 43 A. H. 221. Overinsurance, waiver of conditions against. — See 27 A. R. 597. Overvaluation, effect of. — See 35 A. R. 74. Paid-up and nonforfeiting policy of life insurance- — As to generally, see 15 I^. 449-455. Parol assignment of insurance policy, validity of. — Sec 5 A. C. 410. Parol evidence to vary or contradict written contracts, as affected by the doctrine of waiver or estoppel as applied to policies of Insurance. — See 16 L. N. S. 1165-1264. Partnership, transfer by one partner of his Interest In In- sured property to other members of firm as a prohibited change or alienation of interest. — See 18 L. 482. Pecuniary interest necessary to entitle one to take out life insurance. — See 54 L. 125. 1317 § 2527 CIVIL CODE. [Div.III.Pt.IV. Penalty for refusal or failure of insurance to pay losses, constitutionality of statutes providing. — See 5 A. C. 405. Poisonous substances, contact as an accident within acci- dent policy. — See 9 L. 687. Policies— Of life insurance. — See 15 L. 453. Same — On live stock, severability of contract. — See 19 L. 218. Same— What. — See Kerr's Cyc. C. C. § 2586 and note. Policyholder, right of to inspect books of insurance com- pany.— See 11 L. N. S. 1089. Power — Of insTired to destroy rights of beneficiary — In case of benefit societies. — See 49 L. 749. Same — Same — In case of regular life policy. — See 49 L. 737. Same — Of members of benefit associations. — See 2 L. 163. Premium — Payment of — After death, reinstatement of de- frauded policy by. — See 14 L. 283. Same — ^Same — After death to keep insurance in force. — See 14 L. 283. Same — Same — By insured. — See 8 L. 114. Same — Suit on premium notes when foreign corporation has not complied with statute as to doing business in state. — See 20 L. 407. Same — Taxes on. — See 57 L. 69. Same — Waiver of payment of, what amounts to. — See 29 A. R. 777. Premium notes — Failure to pay interest on, forfeiture for. — • See, 15 L. 452. Same — Forfeiture for nonpayment of. — See 9 L. 317; see "For- feiture," this note. Same — Payment of outstanding. — See 15 L. 452. Same — Suit on when foreign corporation has not complied with statute as to doing business in state. — See 20 L. 407. Premiums and assessments — A priority of claim for, against property in hands of receiver. — See 2 L. N. S. 1051. Same — Allowance to applicant of agent's commission at pay- ment of premium. — See 8 L. N. S. 884. Same — Effect of incapacitating illness or insanity on failure to pay when due. — See 12 L. N. S. 319. Same — Mode of proving mailing of notice of maturity of. — See 7 L. N. S. 238. Same — Necessity that notice of maturity of sent through mail be received. — See 7 L. N. S. 253. Same — Non-payment of as effected by incontestable clause. — See 6 L. N. S. 1039. Same — Return of, on benefit certificate proving void for fraud.— See 3 L. N. S. 114. Same — Right of mutual benefit society to increase rates. — See 7 L. N. S. 154. Same — When statute of limitations begins to run against 1318 Tit.XI,ch.I,art.I.] INSURANCE,' generally. §-2527 unpaid balance on premium or "stock note" of mutual insur- ance company. — See 1 L. N. S. 914. Presumptions and burden of proof as to insanity in case of death by suicide. — See 35 L. 263. Previous rejection by benefit association as declination or refusal of insurance within meaning of application for life insurance. — See 4 L. N. S. 247. Privileged communications, statement of physicians, exacting in and respecting proofs of death. — See 52 A. R. 4. Profits — Application of to payment of interest in case of paid-up and nonforfeiting policies of life insurance. — See 15 L. 453. Proof — As to insanity in case of death by suicide. — See 35 L. 264. Same — Of voluntary exposure to unnecessary danger as de- fense on an accident policy. — See 40 L. 448. Proof of loss or death — As to generally, see* "Loss and its adjustment," this note. Same — Forfeiture for failure to furnish within stipulated time. — See 18 L. 85. Same — Waiver of objections to want of. — See 1 L. 217; 7 L. 81, 83; 8 L, 77. Proximate cause of loss, what is. — See 36 A. S. 852. Real party in interest by whom action on insurance policy may be brought. — See 64 L. 615. Reference as to loss — Provision for. — See 11 L. 598. Same — Waiver of. — See 11 L. 598. Reforming policies of. — See 65 A. S. 514. Reinstatement — After death. — See 14 L. 284. Same — First and last days in computing time of payment of. —See 49 L. 208. Same — Of defrauded policy liy i)aymont of premium after death.— See 14 L. 283. 'Reinsurance. — See Kerr's Cyc. C. C. S 2646 and note; also note S 2646, post. Same — And the remedies of the p;irtios thereunder. — See 45 A. S. 442. Same — Liability of reinsurer. — See 8 L. N. S. S44-862. Relative's insurable interest in life of another. — See note 54 L. 225-234. Remedy for n-fusal to levy assessment. — See 1 1j. 146; 2 L. 786; 8 L. 115. Rent, insurer eli^cting to rebuild not liable for. — See 26 L. 857. Representation.s — By insured outside of his application as evidence against beneficiary. — See 11 L. N. S. 92. Same — Law governing, as to effect of misrepresentations in application. — See 63 L. 864. Same — Misstatements — In application, effect of. — See 7 L. 217; 10 L. 666. 1319 § 2527 CIVIL, CODE. [Div.III.Pt.IV. Same — Same — Or misrepresentations made or induced by in- surer's agent. — See 8 L. 70. Same — Morphinism of insured as affecting policy. — See 39 L. 265. Same — Statements as to health and attendance of physician. —See 10 L. 616. Same — When may statements be regarded as, although ex- pressly denominated in the policy as warranties. — See 11 L. N. S. 981. Repiv-ocntations and warranties. — See "Contract of — Con- struction," this note. Same — As to generally, see 16 A. D. 462; 1 L. 564; 7 L. 217; 8 Lr. 70; 10 L. 666; 39 L. 265; 63 L. 864. Restrictions on, by unincorporated associations or individuals, Lloyd associations. — See 25 L. 238. Results and causes of loss for injury to property — Effect of voluntary exposure to peril upon liability on marine insurance policy.— See 1 L. N. S. 1095. Same — Liability of insurance company in case of intentional destruction of property by insured. — See 17 L. N. S. 189. Same — Meaning of "cyclone," "tornado," or other kind of wind storm in an insurance policy. — See 8 L. N. S. 308; 2 W. & P. 1809; 8 W. & P. 7006. Same — Right to recover under "sue and labor" clause in marine insurance for moving cargo over land. — See 14 L. N. S. 1161. Retention of policy. — See 67 L. 708. Riders or slips attached to insurance policies, effect of. — See 30 L. 636. Right of assessment company to change from assessment to level policies. — See 1 L. N. S. 623. Right of insurance agent to commissions on renewal pre- miums after termination of agency. — See 7 A. C. 1169. ^ Right of insurance company to cease writing assessment policies and restrict itself to legal reserve insurance. — See 4 A. C. 360, 361. Right of insurer to subrogation. — See notes 30 A. D. 102; 44 A. S. 731-739. Right of policy holder to inspect books of insurance company. —See 11 L. N. S. 1089. Right to proceeds, "heirs," who entitled as. — See 44 A. S. 404. Right to rescind contract of insurance for default of other party. — See 30 L. 69. Risks incident to duty or necessity. — See 40 L. 437. Sale or alienation of property, when avoids.- — See 28 A. D. 154. Set-off in case of bankruptcy. — See 55 L. 49; 66 L. 72. Severability of contract — Effect on insurance upon buildings of forfeiture as to personal property. — See 19 L. 217. Same — Fraud. — See 19 L. 218. 1320 TitXI.ch.I.art.I.] INSURANCE, GENERALLY. §2527 Same — Insurance — On buildings and contents. — See 19 L. 214. Same — Same — On several articles of personal property. — See 19 L. 217. Same — Same — On several buildings. — See 19 L. 212. Same — Marine policies. — See 19 L. 218. Same — Policies on live stock. — See 19 L. 218. Same — When and when not severable. — See 8 L. 834. Sickness, as total disability. — See 38 L. 537. Situs for insurance for purposes of administration. — See 24 L. 687. Statute of limitations — When begins to run against unpaid balance on premium or "stock" notes of mutual insurance company. — See 1 L. N. S. 914. Stranger, right to take life insurance for benefit of. — See 25 L. 627. Subagent, notice to, effect of. — See 21 L. 342. Submission to arbitration. — See "Arbitration, subim.-.-Miii i.i, . this note. Subrogation — In action against third person who caus.il tl..' loss, when insurer has paid loss. — See 2 L. N. S. 922. Same — Insurer's right to. — See 44 A. S. 731. Same — Of carrier to rights against insurer. — See 3 L. 426. Same — Of insurer to rights of insured against carrier. — See 3 L. 426. Same — Right of life or accident insurance company to. — See 18 L, N. S. 211. Same — Rights of insurer to, to mortgagees when. — S<'e .S T>. N. S. 79. Successive insurers, liability of. — See 28 A. D. 121. Suicide — As a defense — Conflict of laws as to. — See r.3 1^. si>.. Same — Same — Effect of provision avoiding policy after death results from "sane or insane." — See 17 L. 89. Same — Same — Statutes prohibiting defense of. — See 42 L. 260. Same — Same — Under policy containing incontestable clause. — See 42 L. 253. Same — Insanity as affecting condition as to in policy — Gen- erally, see 35 L. 258. Same — Same — Degree of insanity which will excuse. — See 35 L. 259-262. Same — Same — Determination as to existence of insanity. — See 35 L, 263. Same — Same — Pleadings. — See 35 L. 263. Same — Same — Presumptions and burden of proof. — See 35 L. 263. Same — Same — Proof as to insanity. — See 35 L. 264. Same — Same — "Sane or insane." — See 35 L. 262. Same — Retroactive effect of resolution or by-laws of mutual insurance company changing period during which policy may be contested for. — See 12 L. N. S. 504. 1321 § 2527 CIVIL, CODE. [Div.III.Pt.IV. Surplus — Distribution of upon dissolution of mutual insur- ance company. — See 3 L. N. S. 653. Temporary removal of property, effect of. — See 43 A. R. 34. Title — Contract to convey, as breach of condition against cliange of title or interest. — See 3 L. N. S. 107. Same — Effect of bankruptcy or insolvency proceedings or assignment for benefit of creditors on fire insurance policy. — See 15 L. 829. Sanie: — Effect of bond for title to defeat unconditional and sole ownership. — ^See 5 L. N. S. 512. Same — Effect of change of, generally, see 4 L. 539, 541; 9 L. 627; 11 L. 293. Same — For purposes of insurance, of house on government land under homestead entry, as within sole and unconditional ownership of clause in insurance policy. — See 8 L. N. S. 903. Same — How far an undivided interest in property is a com- plete or full ownership for purposes of insurance. — See 18 L. 481. Same — Mortgage as affecting change of in insured property. —See 38 L. 562. Same — Partnership interest. — See 18 L. 482. Same — Transfer by one partner of his interest to other mem- bers of firm as a prohibited change or alienation of interest. — See 18 L. 482. Same — Vendor's lien as affecting sole and unconditional own- ership.— See 7 L. N. S. 627. "Tornado," meaning of in insurance policy. — See 8 L. N. S. 308; 8 W. & P. 7006. Total disability — As to what constitutes. — See 36 L. 529-539. Same — Ability to attend to part of business. — See 38 L. 531. Same — "Immediately," construed. — See 28 L. 538. Same — "Per week" construed. — See 38 L. 539. Transfer of policy or interest therein — As to generally, see 9 L. 660; 10 L. 259; 32 L. 482; 63 L. 858; 3 L. N. S. 935-952; 6 L. N. S. 128; 12 L. N. S. 1206. Same — Effect on assignee of assignor's act of forfeiture. — See 18 L. 136. Transferees of policy or property as members of mutual fire insurance company. — See 32 L. 482. Ultra vires, defense of by insurance company in action on a policy. — See 4 A. C. 1046. Unauthorized insurance may be ratified. — See Kerr's Cyc. O. C. § 2586 and note pars. 32, 33. Undivided interest in property — How far is a complete or full ownership for the purposes of insurance. — See 18 L. 481. Same — Partnership interest. — See 18 L. 482. Unexpected risks, effect of on provision as to voluntary ex- posure to unnecessary danger. — See 40 L. 441. Use of intoxicating liquors, scope and effect of provisions in policies of insurance forbidding use of. — See 15 L. N. S. 206. 1322 Tit.X[,ch.I,art.I.] IXSURA2. 432.. Same — Proof of. as a defense. — See 40 L. 448. Same — Risks incident to duty or necessity. — See 40 L. 437. Same — Unexpected risks. — See 40 L. 441. Same — What con.stitutes. — See 40 L. 442. Wager policy of life Insurance. — See fl L. 137: 7 L. 217; 12 L. 409; 13 L. 434. 1323 § 2527 CIVIL CODE. [Div.III,Pt.IV. Waiver— By agent. — See 1 L. 217. Same — By officer of subordinate lodge of forfeiture for non- payment of assessment. — See 4 L. N. S. 421. Same — By requiring further proof of loss. — See 9 A. S. 236. Same — By subordinate lodge of right of benefit association to insist upon forfeiture of benefit, cause of violation of the laws of the association. — See 10 L. N. S. 136. Same — Of conditions — Against other insurance. — See 27 A. R. 601 Same — Same — In insurance policy by insurer's failure to in- quire into existing facts. — See 9 A. C. 994. Same — Same — Or defenses based thereon. — See 1 L. 222; 1 Li. 563; 8 L. 74. Same — Same — Requiring waivers to be indorsed in writing. — See 42 A. R. 621; 107 A. S. 99. Same — Of forfeiture for nonpayment of premium. — See 1 L. 256; 9 L. 317; see "Forfeiture," this note. Same — Of notice and statement of loss. — See 8 L. 76; 10 L. 558. Same — Of objections to want of proof of loss or death. — See 1 L. 217; 7 L. 81, 83; 8 L. 77. Same — Of proof of loss. — See 1 L. 217; 7 L. 81; 8 L. 77. Same — Same — Of provisions for submission to arbitration. — See 10 L. 558. Same — Same — Submission to arbitration as. — See 10 L. 560. Same — Of reference as to loss. — See 11 L. 599. Same — Parol evidence, rule as to varying or contradicting written contracts, as affected by doctrine of. — See 16 L. N. S. 1165-1284. Same — Retention of policy as of mistake or fraud of insurer or its agent. — ^See 67 L. 705-744. Warranties — Admissions or statements by insured outside of his application as evidence against beneficiary. — See 11 L. N. S. 92. Same — And representations and their effect. — See 16 A. D. 462; 59 A. R. 816. Same — Effect of honest mistake in answer as to health of insured, warranted by him to be true. — See 15 L. N. S. 1277. Same— Effect of temporary condition which ceased before loss, under general provisions against increase of risk, or specific provisions against certain conditions. — See 10 L. N. S. 736. Same — Of answers in application, effect of. — See 13 L. 263. Same — What statements are. — See 1 L. 564. Same — When may statements be regarded as representations, although expressly denoininated in the policy as. — See 11 L. N. S. 981. When contract entire and when severable. — See 8 L. 834. When contract of insurance is completed. — See 9 A. C. 220. Wife's right to insure life of husband. — See 53 L. 817-825. X324 Tit.XI,ch.I,art.II.] EVENTS INSURED AGAINST. §§ 2531, 2532 ARTICLE II. WHAT MAY BE INSURED. § 2531. What events may be insured against. § 2532. Insurance of lottery or lottery pri/,<=> iin;iiitliniized. § 2533. Usual kinds of insui'ance. § 2534. All subject to this chapter. §2531. AVIIAT EVENTS MAY BE INSURED A(iAI>ST. Any contingent or unknown event, whether past or future, which may damnify a person having an insurable interest, or create a liability against him, may be insured against, sub- ject to the provisions of this chapter. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 107 C. 327, 330, 48 A. S. 140, 40 P. 431. 28 L. 692 (cited). As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Delivery of policy after loss. — See Kerr's Cyc. C. C. § 2586 and note par. 15. Insurable interest, what. — See Kerr's Cyc. C. C. § 2546 and note par. 2. Wager policies — Common law as to. — See article 32 Alb. L. J. 385, 403, reproduced as note in 52 A. R. 135-148. § 2532. INSURAM E OF LOTTERY OR LOTTERY PRIZE UNAUTHORIZED. The preceding section does not authorize an insurance for or against the drawing of any lottery, or for or against any chance or ticket in a lottery drawing a prize. Ilistor.v: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Lottery tickets, penal provisions against insuring. — See Kerr's Cyc. Pen. C. § 324 and note. 1325 §§ 2533, 2534 CIVIL CODE. [Div.III,Pt.IV. § 2533. USUAL KINDS OF INSUKANCE. The most usual kinds of insurance are: 1. Marine insurance; 2. Fire insurance; 3. Life insurance; 4. Health insurance; and, 5. Accident insurance. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Assumption of policy by another company. — See Kerr's Cyc. C. C. § 2527 and note par. 4. Fire insurance. — See Kerr's Cyc. C. C. §§ 2753-2757 and notes. Life and health insurance. — See Kerr's Cyc. C. C. §§ 2762- 2766 and notes. Marine insurance. — See Kerr's Cyc. C. C. §§ 2655-2746 and notes. What is death by accidental means. — See 23 A. S. 641. § 2534. ALL SUBJECT TO THIS CHAPTER. All kinds of insurance are subject to the provisions of this chapter. HLstory: Enacted March 21, 1872. 1326 Tit.XI.ch.I.art.III.] parties. §§2538-2540 / ARTICLE III. PARTIES TO THE CONTRACT. § 2538. Dosig-nation of parties. § 2539. Who may insure. § 2540. Who may be insured. S 2541. Assignment to mortgagee of thing insured. § 2542. New contract between insurer and assignee. §2538. 1)ESIG\AT10X OF P.VRTIES. The person who undertakes to indemnify another by a contract of insurance is called the insurer, and the person indemnified is called the insured. IliNlory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Insurance agents. — See Kerr's Cyc. C. C. § 2.")86 and note pars. 1-4. §2539. ^VHO MAY IXSI'RE. Any one capable of makinc; a contract may be an insurer, subject to the restrictions imposed by special statutes upon foreign corporations, non- residents, and others. IIlMtury: Kiiact.d Murt'h 21. 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to Insurance, see notes §§414, 2527, ante. Assumption of policy by anotlier company. — See Kerr's C.vc. C. C. § 2527 and note par. I. §2510. WHO MAY \iV INSri{KI). Any one except a i)ul.- lic enemy may be insured. HlHturyt Enacted March 21. 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous luatters as to insuraiu. . .-. v notes §§ 414, 2527, ante. Assignment of insiirnncf. policy. — .<=;iw K. rr"s Cyc. C. C. | 2599 and note. 1327 §§ 2541, 2542 CIVIL CODE. [Div.III.Pt.IV. Consent of person whose life is insured as condition of insurance. — See 56 L. 585. Insurable interest, what. — See post § 2546. Insurance on life of minor. — See 57 L. 496-506. Insurable interest in life of parent or child or other relative by blood. — See 54 L. 225-234. §2541. ASSIGNMENT TO MOETGAGEE OF THING INSUEKD. Unless the policy otherwise provides, where a mortgagor of property effects insurance in his own name pro- viding that the loss shall be payable to the mortgagee, or assigns a policy of insurance to a mortgagee, the insurance is deemed to be upon the interest of the mortgagor, who does not cease to be a party to the original contract, and any act of his, prior to the loss, which would otherwise avoid the insurance will have the same effect, although the property is in the hands of the mortgagee, but any act which, under the contract of insurance, is to be performed by the mortgagor, may be performed by the mortgagee therein named, with the same effect as if it had been performed by the mortgagor. History: Enacted March 21, 1872, amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 416, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 616; amended April 15, 1909, Stats, and Amdts. 1909, p. 914. In effect immediately. See Kerr's Cyc. C. C. for 5 pars, annotation. 128 C. 16, 19, 79 A. S. 17, 60 P. 467 (applied); 136 C. 542, 547, 19 P. 253, 615 (cited in dis. op.); 148 C. 223, 226, 82 P. 964, 113 A. S. 223, 7 A. C. 396 (any act of owner which, by terms of policy of insurance would be suflficient to avoid it as against •owner, would prevent recovery by creditor whose debt is se- cured by deed of trust of property insured, although he was not aware of violation of its terms and did not consent thereto, but this rule may be changed by clause in policy referring to interest in favor of third persons). As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Assignment of insurance, when valid, and what constitutes. — See 56 A. D. 747-755. Assignment of policy. — See Kerr's Cyc. C. C. § 2599 and note. § 2542. NEW CONTRACT BETWEEN INSURER AND AS- SIGNEE. If an insurer assents to the transfer of an insur- 1328 Tit.XI.ch.I.art.IV.] INSURABLE INTPmEST. 5 2546 ance from a inortRaKer to a mortgagee, and, at the time of his assent, inii>oses further obligations on the assi;;nee. mak- ing a new contract with him, the acts of the mortgager canuut affect his rights. HiM(or> : Eii;i( l<'(i .M;ti>ji .i, i ^ > -. Ab to ni.Tny miscollanoous matters as to insurance, see notes {| 414. 2527, ante. As to negrotial)ility of policy of Insurance, see Kerr's Cye. C. C. i 2S42, note. AiniCIJO IV. INSUUA15LK INTKREST. I 2546. Insurable interest, what. I 2547. In wliat may consist. I 2548. Interest of carrier or depusltary. I 2549. Mere expectancies. I 2550. Measure of Interest In property. i 2561. Insurance without Inti-rest, lllegul. t 2562. When Interest must exist. i 2553. PifTect of transfer. I 2554. Transfer after loss. i 2655. Excei)tlon In the case of several subjects in one policy. I 2556. In case of the death of the Insurer. I 2557. In the case of transfer between ro-tenanti«. 12558. Void Insurance stlpubiti §2ril«. nSlRAHI-K IM'KHKSr. \MI\T. Kvery interest in iM()i)prty, or any relation tlicreio, or lialiility in respt'ct tliereof, of such a nature tliat a contemplated peril might (lirerfly flamnifv the insured, is an insurable i?if<.r..te. 1329 §§ 2547, 2548 CIVIL CODE. [Div.III,Pt.IV. Husband's insurable interest in wife's property. — See 30 A. S. 806. Information as to nature of interest insured. — See Kerr's Cyc. C. C. § 2568 and note. Insurable interest in life of parent or child or other relative by blood. — See 54 L. 225-234. Insurable interest in property. — See 20 A. D. 510-518. Interest of carrier or depositary. — See Kerr's Cyc. C. C. § 2548 and note. Lessor's and lessee's insurable interest. — See 20 A. D. 514. Life and health insurance — Insurable interest. — See Kerr's Cyc. C. C. § 2763 and note. Mortgagee's insurable interest. — See 54 A. D. 693-700. Part owner — Insurance by. — See Kerr's Cyc. C. C. § 2590 and note. Policy — Specification of insurable interest in. — See Kerr's. Cyc. C. C. § 2587 and note. Purchaser's insurable interest under executory contract. — See 30 A. D. 101, 102. Sheriff's insurable interest in goods taken. — See 20 A. D. 516, 517. Trustee's insurable interest. — See 20 A. D. 515. Validity of life insurance to secure debt to insurer. — See 53 L. 462-465. Wager policies — Common law as to. — See article 32 Alb. L. J. 385, 403, reproduced as note in 52 A. R. 135-148. §2547. IN WHAT MAY COXSIST. An insurable interest in property may consist in: • 1. An existing interest; 2. An inchoate interest founded on an existing interest; or, 3. An expectancy, coupled with an existing interest in that out of which the expectancy arises. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Insurable interest — What constitutes. — See Kerr's Cyc. C. C. § 2546 and note. §2548. INTEREST OF CARRIER OR DEPOSITARY. A carrier or depositary of any kind has an insurable interest in a thing held by him as such, to the extent of its value. History: Enacted March 21, 1872. 1330 » Tit.XI.ch.l.sirt.lV.] MHUK EXPKCTAN<"Ii:s. §5 2549-2r.52 See Kerr's Cyc. C C. for 3 pars, annotation. As to many mlscpllaneous matters as to insurance, see notes li 414, 2527, ante. Insuralilc interest of consii^nee or bailee. — -Ste 2(i A. I). 515. 516. §2r>4«. .MKHE EXl'KCTAM'IES. A mere contingent or expectant interest in anything, not fotinded on an actual right to the thing, nor u|)on any valid contract for it. is not insur- able. ■ IIiNli>r>: Knacted March 21. 1S72. As to many miscellaneous matters as to insurance, see notes {{ 414, 2527. ante. Kiitiire products. — See 2ii A. 1 ». .'is. §2r>r»0. MEASIRE OF INTEKEST IN riMU'EHTV. The measure of an in.surable inlere.st in proijerty i.s liie extent to which the insured might be damnified by loss or Injtiry thereof. Illotor.t: Knacted March 21, lsT2. As to many miscellaneous matters as to in.surance, see notes II 414, 2527. ante. Purchaser's insurable int<'rest. — See Kerr'.s Cyc. C. C. I 2553 and note par. 3. Valuation In policy of marine Insurance. — See KHU(H I I MEREST, lI.EEIiAI.. The sole object of insurance is the indemnity of the Insured, and if he has no insurable Interest the contract is void. lllNiiir.'.: Hnart.d March 21. 1S72. As to many miscellaneous matti-rs ns to Insurance, see notes 11 414. 2527, ante. Invalidity of policy as to part of property insiired, whether void In toto, where It covers different kinds of property, con- tract being entire. — See 74 A. D. 498-500. §2:):i2. ^VHE>' INTEREST MIST EXIST. An interest insured must exist when the insurance takes effect, and when the loss occurs, l)ut need not exist in the mean time. HlKtorj ; Enacted March 21. '*>T2 1831 §§ 2553-2555 CIVIL CODE. [Div.in,Pt.IV. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. For Commissioners' comment on this section and authorities, see Kerr's Cyc. C. C. § 2552, note. §2553. EFFECT OF TRANSFER. Except in the cases specified in the next four sections, and in the cases of life, accident, and healtli insurance, a change of interest in any part of a thing insured, unaccompanied by a corresponding cliange of interest in the insurance, suspends the insurance to an equivalent extent, until the interest in the thing and the interest in the insurance are vested in the same person. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Alienation defeating claim for insurance. — See 28 A. D. 154- 159, 30 Id. 102. Assignment of life policy. — See Kerr's Cyc. C. C. § 2764 and note. Cognate sections. — See Kerr's Cyc. C. C. §§ 2554-2557, 2593 and notes. §2554. TRANSFER AFTER LOSS. A change of interest in a thing insured after the occurrence of an injury vi^hich results in a loss, does not affect the right of the insured to indemnity for the loss. History: Enacted March 21, 1872. §2555. EXCEPTION IN THE CASE OF SEVERAL SUB- JECTS IN ONE POLICY. A change of interest in one or more of several distinct things, separately insured by one policy, does not avoid the insurance as to the others. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §8 414, 2527, ante. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 2255, note. 1332 I Tit.XI.ch.I.art.IV.] i jkath— tkanskkk. §§2556-2558 §2.w(;. IN CASE OF THE DEATH OF THE INSIKEK. A change of interest, by will or succession, on the death of the insured, does not avoid an insurance; and his interest in the insurance passes to the person taking his interest in the thing insured. liiNtury: Enacted March 21, 1S72. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527. ante. Alienation by operation of law. — See 28 A. D. 158, 159. Assignment in bankruptcy. — See 28 A. D. 158. Death of Insured does not constitute alienation. — See 28 A. D. 158. §2557. IN THE CASE OF TKANSFEK BETWEEN ( OTE\- ANTS. A transfer of interest by one of several partners, joint owners, or owners in common, 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 aliena- tion of the thing insured. IliNtory: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Part owner — Insurance by. — See Kerr's Cyc. C. C. § 2tt'^0 and note. Transfer by partner. — See 28 A. D. 157, 158; 49 A. R. 22-25; 52 A. R. 442-443. §2r>:.s. VOID INSri{AN(E STirn.ATIONS. Every stipu- lation in a policy of insurance for ihc payment of loss whether the person insured has or has not any Interest in the property insured, or that the policy shall he received as proof of such interest, and every policy executed by way of gaming or wagering, is void. HiMtory: Enacted March 30, 1S74; Code Amdts. 1873-4, p. 255. As to many miscellaneous matters as to Insurance, sec notes §§ 414, 2527, ante. Wager policies — Common law as to. — See article 32 Alb. L. J. 385. 403, reproduced as note in 52 A. R. 135-148. 1333 § 2561 CIVIL CODE. [Div.III.Pt.IV. ARTICLE V. CONCEALMENT AND REPRESENTATION. § 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. § 2566. 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. Representation as to future. § 2575. How may affect policy. § 2576. When may be withdrawn. § 2577. Time intended by representation. § 2578. Representing- information. § 2579. Falsity. § 258(V. Effect of falsity. § 2581. Materiality. § 2582. Application of provisions of this article. § 2583. Rescission of insurance contract. §2561. CONCEALMENT, WHAT. A neglect to communi- cate that which a party knows, and ought to communicate, is called a concealment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 80 C. 440, 443, 22 P. 302, 303 (applied). As to false representations, see note § 2527, ante. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to misrepresentations, see note § 2527, ante. As to misstatements, see note § 2527, ante. As to representations, see note § 2527, ante. Application as part of policy. — See Kerr's Cyc. C. C. § 2605 and note pars. 2, 3. 1384 i\ Tit.XI,ch.I,art.V.] matters to be disclosed. §§ 2562-2564 Duty of insured to submit to examination and furnish in- formation to insurer. — See 52 L. 424-429. Enemies of insured — Failure to state existence of. — See Kerr's Cyc. C. C. §§ 2563 and note par. 3. Fraud as ground for avoidance. — See 51 A. S. 439. Innocent misrepresentations as to liealtli of insured when he has undiscovered disease. — See 53 L. 193-205. Liens and encumbrances not correctly stated. — See Kerr's Cyc. C. C. §2611 and note par. 6. Marine insurance — Concealment by insured. — See Kerr's Cyc. C. C. §§ 2669-2672 and notes. "Warranties. — See Kerr's Cyc. C. C. §§ 2603-2612 and notes. What must be disclosed. — See Kerr's Cyc. C. C. § 2563 and note. §2o()2. EFFECT OF CONCEALMENT. A concealment, whether intentional or unintentional, entitles the injured party to rescind a contract of insurance. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 80 C. 440, 443, 22 P. 302, 303 (applied). As to many miscellaneous matters as to insurance, see note.« §§ 414, 2527, ante. §2563. WHAT MUST BE l)ISCL(hSEI). Each party to a contract of insurance must communicate to the other, in good faith, all facts within his knowledge which are or which he believes to be material to the contract, and whicli the other has not the means of ascertaining, and as to which he makes no warranty. IliMtory: Enactrd March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 80 C. 440. 443, 22 P. 302, 303 (applied). As to many miscellaneous mattirs as to insurance, see notes §§ 414, 2527, ante. §25(54. MATTEKS >VHI( H NEED NOT IJE (OMMIM- CATEI) WITIKM'T INOCIKV. Neither party to a contract of insurance is l)ound to communicate information of the mat- ters following, except in answer to the inquiries of the other : 1. Those which the other knows: 2. Those which, in the exercise of ordinary care, the other 1335 §§ 2565, 2566 CIVIL CODE. [Div.III.Pt.IV. ought to know, and of which the former has no reason to suppose him ignorant; 3. Those of which the other waives communication; . 4. Those which prove or tend to prove the existence 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. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 125 C. 345, 350, 58 P. 7 (subd. 3 cited). As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to representation contained in application, see 20 A. R. 575-578; 33 A. R. 832-838; 59 A. R. 816-822. Application as part of contract. — See Kerr's Cyc. C. C. § 2605 and note par. 2. Fraudulent warranty. — See Kerr's Cyc. C. C. § 2569 and note. Matters whicli each is bound to know. — See Kerr's Cyc. C. C. § 2566 and note. Waiver of communication. — See Kerr's Cyc. C. C. § 2567 and note. §2565. TEST OF MATERIALITY. Materiality is to be determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the communication is due, in forming his estimate of the disadvantages of the proposed contract, or in making his inquiries. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Incendiary danger — Appreliension of. — See Kerr's Cyc. C. C. § 2561 and note par. 6. Representation — Materiality of. — See Kerr's Cyc. C. C. § 2581 and note. §2566. MATTERS TVHItH EACH IS BOUND TO KNOW. Each party to a contract of insurance is bound to know all the general causes which are open to his inquiry, equally 1336 TitXI.ch.I.art.V] WAIVER— FRAUD. §§ 2567-2569 with that of the other, and which may affect either the political or material perils contemplated; and all general usages of trade. IIi.s4or>: Enartiil Marfli 2\. 1S71'. §2.>67. WAIVEK OF ( OMUl'NK ATION. The right to information of material facts may be waived, either by the terms of insurance f)r by neglect to make inquiries as to such facts, where they are distinctly implied in other facts of which information is communicated. IIiN(or>: Enactod Marcli 21, 1872, See Kerr's Cyc. C. C. for 4 pars, annotation. See Kerr's Cyc. C. C. § 2566 and note. As to many miscellaneous matters as to liisiir.ince, see notes S§ 414, 2527, ante. MIsrepre.spntatiDn waived. — See Kerr's Cyc. C. C. $ 2.'.S0 and note par. 25. Violation of warranty waived. — See Kerr's Cyc. C. C. { 2610 and note pars. 42-48. §2o(>N. I.MKKKST 01 IN-SIKKD. Information of the na- ture or amount of tlie interest of one insured need not be communicated unless in answer to an inquiry, except a.s pre- scribed by section twenty-five hundred and eighty-seven. lllMtor>: Enact. d March 21, 1S72. §1V>(;!». KK.VnU l,KM »\I{|{V\IK An intentional and fraudulent omission, on the part of one insured, to communi- cate information of matters proving or tending to prove the falsity of a warranty, entitles the insurer to rescind. IllHlor.i: Enacted Murcli 21, ISTJ. S«T Kerr's Cyc. C C for 3 pars, annotation. As to many miscellaneous matters as to instjranre, »oe notes 5$ 11 4, 2,">27, ante. ElTect of false representntlon. — See Kerr's ('>•-. • 80 nnil note. Violation of materliil w.nrranty. — S.-e Kerrs Cyc. r C. f 2610 and note. §§ 2570-2573 CIVIL CODE. [Div.III.Pt.IV. §2570. MATTERS OF OPINION. Neither party to a con- tract of insurance is bound to communicate, even upon inquiry, information of his own judgment upon the matters in question. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. For Commissioners' comment, see Kerr's Cyc. C. C. § 2570, note. § 2571. EEPRESENTATION, >VHAT. A representation may be oral or written. Hi-story: Enacted March 21, 1872. 25 P. 260, 261 (cited); 89 C. 203, 23 A. S. 460, 26 P. 872 (on rehearing). As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Marine insurance — Representations of insured. — See Kerr's Cyc. C. C. §§ 2676, 2677 and notes. Warranties and representations in contracts of insurance. — See 16 A. D. 467; 54 A. D. 320, 321. § 2572. WHEN MADE. A representation may be made at the same time with issuing the policy, or before it. HLstory: Enacted March 21, 1872. 25 P. 260, 261 (cited). ; As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Application as part of contract. — See Kerr's Cyc. C. C. § 2605 and note pars. 2, 3. § 2573. HOW INTERPRETED. The language of a repre- sentation is to be interpreted by the same rules as the lan- guage of contracts in general. History: Enacted March 21, 1872. 25 P. 260, 261 (cited). As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to ownership being represented by application, see Kerr's Cyc. C. C. § 2573, note. 1338 Tit.XI.ch.I.art.V.] REPRESENTATTON. EFFECT. §§ 2r,74-2ri77 Construction of warranty. — Sfo Kerr's Cyc. C. C. § 2604 and note par. 2. Uniformity of iiiti-rpr.tation. — See Kt-rr'.s Cyc. C. C. $ 1635 and note. S2'')74. KEPKESENT.VTION AS TO FITIHE. A ippre- sentation as to the future is to be deemed a lironiise, unless it appears that it was merely a statement of belief or expecta- tion. IILstory: Enact..! Marcli 21. 1S72. 25 P. 260, 261 (cited). . As to many miscellaneous matters as to in.surance, see notes §S 414. 2527. ante. Different kinds of warranties. — See Kerr's Cyc. C. C. S 2606 and note. §2r)7.'». HOW MAY AFFECT IMU.K V. A representation cannot be allowed to qualify an exi)r<'ss provision in a con- tract of insurance; but it may qualify an implied warranty. IIiH«ory: Enacted March 21, 1S72. 25 P. 260. 261 (cited). As to many miscellaneous matters as to insur.iiice, see notes 58 414, 2527. ante. §2r>7«. >VIIEN MAY BE \YITHnKA\YX. A representation may bo altered or witiidrawii beiOre tin- insui'ance is effected, but not afterwards. IliHtoryi i:iia.t.Mi .Mardi 21. 1ST2. 25 P. 260. 261 (cited). As to many miscellaneous matters as to insurance, see notes H 414. 2527. ante. §2.>7:. Tl.ME INTEMJEO HY KETHESENTA IMJN. The completion of the contract of insurance is the time to which a representation must be presumed to refer. llUtoryt Enacted March 21, 1872. (C. Dec. 13, 1890), 25 P. 260, 261 (cited). 89 C. 203. 23 A. S. 460. 26 P. 872 (on reliearingr). Ab to many miscellaneous matters as to insurancet •©• notes §1 414. 2527. ante. 1339 §§ 2578-2580 CIVIL CODE. [Div.III.Pt.IV. § 2578. REPRESENTING INFORMATION. When a person insured has no personal knowledge of a fact, he may neverthe- less repeat information which he has upon the subject, 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. History: Enacted March 21, 1872. § 2579. FALSITY. A representation is to be deemed false when the facts fail to correspond with its assertions or stipu- lations. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for '7 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. Cancellation of prior policy by anotlier company. — See Kerr's Cyc. C. C. § 2565 and note par. 1. Chang-es of ownership — Delivery of deed is requisite. — See Kerr's Cyc. C. C. § 2610 and note pars. 7, 8. Negligence of insured. — See Kerr's Cyc. C. C. § 2629 and note. Overvaluation of property. — See Kerr's Cyc. C. C. § 2580 and note par. 16. Violation of material warranty. — See Kerr's Cyc. C. C. § 2610 and note. § 2580. EFFECT OF FALSITY. If a representation is false in a material point, whether affirmative or promissory, the injured party is entitled to rescind the contract from the time when the representation becomes false. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 86 C. 248, 251, 21 A. S. 33, 24 P. 1018 (cited); 25 P. 260, 261 (cited); 89 C. 203, 208, 23 A. S. 460, 26 P. 872, 873 (cited). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to rescission of contracts generally, see Kerr's Cyc. C. C. §§ 1688-1691 and notes. 1340 1 f Tit.XI,ch.T,art.V.] MATERTAl.TY. § 2581 Applications made out by agent. — See 82 A. D. 722-723; 9 A. S. 229-236. Burden of proving performance of conditions. — See Kerr's Cyc. C. C. § 2610 and note par. 6. Construction of warranty. — See Kerr's Cyc. C. C. § 2604 and note par. 2. Enemies of insured — Failure to state existence of. — See Kerr's Cyc. C. C. § 2563 and note par. 3. Forfeiture of life insurance by false representation with respect to previous applications for insurance. — See 55 L. 122- 139. Fraud as ground for avoidance. — See 51 A. S. 439. Husband and wife must join in rescission, when. — See Kerr's Cyc. C. C. § 2586 and note par. 19. Incendiary danger — Apprehension of. — See Kerr's Cyc. C. C. § 2561 and note par. 6. Increase of hazard need not be shown. — See Kerr's Cyc. C. C. § 2610 and note par. 17. Innocent misrepresentation as to health of insured wlien lie ■ has undiscovered disease. — See 53 L. 193-205. Knowledge of violation of warranty immaterial. — See Kerr's Cyc. C. C. § 2610 and note par. IS. Local disease concealed. — See Kerr's Cyc. C. C. § 2562 and note par. 2. Materiality of misrepresentation — Instruction. — See Kerr's Cyc. C. C. § 2581 and note pars. 3, 4. Misrepresentations — Effect of. — See 25 A. S. 680, 681. Negligence of insured. — See Kerr's Cyc. C. C. § 2629 and note. Policy may provide for avoidance. — See Kerr's Cyc. C. C. § 2611 and note. Renewal of forfeited policy. — See Kerr's Cyc. C. C. § 2586 and note par. 30. Violation of material warranty. — See Kerr's Cyc. C. C. § 2610 and note. Waiver of violation of warranty. — See Kerr's Cyc. C. C. § 2610 and note pars. 42-48. §25S1. :>rATEI{IAI,ITY. The materiality of a representa- tion is determined by the same rule as the materiality (if a concealment. HiMtory: Enacted March 21. 1S72. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Cancellation of prior policy by another company. — See Kerr's Cyc. C. C. § 2565 and note par. 1. Concealment — Materiality of. — See Kerr's Cyc. C. C. ! 2565 and note. 1341 §§ 2582, 2583 CIVIL CODE. [Div.III,Pt.IV. 1342 1 §2582. APPLICATIO^V OF PROVISIONS OF THIS ARTI- CLE. The provisions of this article apply as well to a modi- fication of a contract of insurance as to its original forma- tion. History: Enacted March 21, 1872. f § 2583. RESCISSION OF INSURANCE CONTRACT. When- ever a right to rescind a contract of insurance is given to the insurer by any provision of this chapter, such right may be exercised at any time previous to the commencement of an action on the contract. HLstory: Enacted March 30, 1874, Code Amdts. 1873-4, p. 255. 25 P. 260, 261 (cited); 89 C. 203, 208, 23 A. S. 460, 26 P. 872, 873 (cited). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Performance excused. — See Kerr's Cyc. C. C. § 2609 and note. Waiver of forfeiture. — See Kerr's Cyc. C. C. § 2610 and note pars. 42-48. i Tit.XI,ch.I,art.VI.] THE POLICV. .2586 ARTICLE VI. THE POLICY. § 2586. Policy, what. § 2587. What mu.st be specified in a policy. § 2588. Whose Interest is covered. S 2589. Insurance by agent or trustee. § J^DO. Insurance by part owner. § 2591. General terms. § 2592. Success'ive owners. § 2593. Transfer of the thing- Insured. § 2594. Open and valued policies. § 2595. Open policy, what. § 2596. Valued policy, what. S 2597. Running policy, what. § 259S. Effect of receipt. § 2599. Agreement not to transfer. §258(5. IMH.ICY, WH.VT. The written instrument, in which a contract of insurance is set forth, is called a i)olicy of insurance. lllMtor.v: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 33 pars, annotation. As to agent's misstatement in application made out by him. see Kerr's Cyc. C. C. § 2580 and note par. 2. As to construction of warranty, see Kerr's Cyc. C. C { 2603 and note par. 4. As to contract or policy of Insurance, see note $ 2527. ante. As to known restrictions upon agent's authority. — See Kerr's Cyc. C. C. § 2318 and note. As to many misccll.iiieous matters as to Insurance, see notes, SSI 411, 2527, ante. Application as part of contract. — See Kerr's Cyc. C. C. I 2605 and noti- pars. 2, 3. Assumption of policy by another company. — Sic Korr's Cyc. C. C. i 2527 and note par. 4. Authority of agent to cancel policy. — See Kerr's Cyr. C. C. 5 2611 and note par. 2. Authority of ;igent to w.TJve ctmdlt ions.— See K-rrs Cyc. C. C. i 2610 and note pars. 43, 44. Change of benelUiary. — See Kerr's Cyc. C. C. $ 2r.3S nnd note pars. 1, 2. Consent of person whose life is ln.>»nred as condition of Insur- niiie tiureon. — See 56 L. 585. 1343 § 25«7 CIVIL CODE. [Div.III,Pt.IV. Contract of bailment. — See Kerr's Cyc. C. C. § 2587 and note par. 4. ' Custom and usage. — See Kerr's Cyc. C. C. § 2604 and note par. 3. Foreign law. — See Kerr's Cyc. C. C. § 2527 and note par. 9. Insurance policy, construction of. — See 23 A. S. 641. Misrepresentations of agents. — See 14 A. S. 493. Necessary and ostensible authority of agents. — See Kerr's Cyc. C. C. §§ 2317, 2319 and notes. Policy may provide for avoidance.^See Kerr's Cyc. C. C. § 3^11 and note. Power of agent to waive conditions with respect to notice, etc. — See 31 A. S. 513, 514. Reformation of policy. — See Kerr's Cyc. C. C. § 2580 and note par. 22. §2587. WHAT MUST BE SPECIFIED IN A POLICY. A policy of insurance must specify: 1. The parties between whom the contract is made; 2. The rate of premium; 3. Tlie property or life insured; 4. The interest of the insured in property insured, if he is not the absolute owner thereof; 5. The risks insured against; and, 6. The period during which the insurance is to continue. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 98 C. 1, 7, 32 P. 705, 707 (cited); 107 C. 327, 330, 48 A. S. 140, 40 P. 431, 28 L. 692 (cited); 111 C. 409, 411, 412, 413, 43 P. 1115 (construed). As to many miscellaneous matters as to insurancfc, see notes, §§ 414, 2527, ante. Application as part of contract. — See Kerr's Cyc. C. C. § 2605 and note pars. 2, 3. Construction of policy. — See Kerr's Cyc. C. C. § 2586 and note par. 10. Custom and usage. — See Kerr's Cyc. C. C. § 2604 and note par. 3. Information as to nature of interest insured. — See Kerr's Cyc. C. C. § 2568 and note. Misdescription of insured property, what is, and the effect of. — See 30 A. D. 101. Non-forfeiture clause — Right to paid-up policy. — See Kerr's Cyc. C. C. § 450 and note. Right of one not named in policy to sue thereon. — See 35 A. D. 624. 1344 ri Tit.XI.ch.I.art.VI.] INSURANCE BY AGENT. 8§ 2588-2591 § 2588. WHOSE IM'EKEST IS COVERED. When the name of the person intended to be insured is specified in a policy, it can be applied only to his own proper interest. HiHtury: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes. §§ 414, 2527, ante. Information as to nature of interest of insured. — See Kerr's Cyc. C. C. § 2568 and note. Insurable Interest — What constitutes. — See Kerr's Cyc. C. C. § 2546 and note. * Mortgagee .as insured. — See Kerr's Cyc. C. C. § 2541 and note pars. 2, 3; 34 A. D. 691; 39 A. D. 542; 50 A. D. 593; 54 A. D. 693. §2rtS9. nSlRAXE KY .\(JE>T (H{ TIUSTEE. When an insurance is made by an agent or trustee, the fact that his 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. HlNtorj: Enacted March 21, 1872. As to many miscellaneous matters as to Insurance, see notes, n 414, 2527, ante. Agents of Insurance companies. — See Kerr's Cyc. C. C. { 2586 and note pars. 1-4. Unauthorized Insurance. — See Kerr's Cyc. C. C. S 2586 and note pars. 32, 33. §2'»!)0. [NSIHAX i: HV T \ l{ I OWM.K. To rohdor an insurance, effected ity one partner or part owner, apiillcable ,to the interest of his copartners, or of other part owners. It is necessary that the terms of the policy should be such as are ai)i)licab!e to the joint or common interest. iliNior>i Enacted March 21. 1872. As to many mlscellniu'dus inalter.s a.M tn lii.«i\irniu'e. see notes. SS 414, 2527, ante. Transfer between cotenants, etc., who are Insured. — See Kerr'n Cyc. C C. S 2557 and note. §2:.»1. UENEK.\1> TEiniS. Wlien the description of the insured in a i^oiicy la so general that it may comprehend any |)erson or any class of persons, he only can claim the Kerr's C. C. — 43 1345 §§ 2592-2595 CIVIL CODE. [Div.III,Pt.IV. benefit of the policy who can show that it was intended to include him. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 2 pars, annotation. 123 C. 222, 224, 55 P. 905 (referred to). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to mortgage as insured, see Kerr's Cyc. C. C. § 2541 and note. Change of beneficiary. — See Kerr's Cyc. C. C. § 2538 and note pars. 1, 2. "For whom it may concern" — Nature and effect of phrase. — See 16 A. D. 323, 324. Right of one not named in policy to sue thereon. — See 35 A. D. 624. § 2592. SUCCESSIVE OWNERS. A policy may be so framed that it will inure to the benefit of whomsoever, during the continuance of the risk, may become the owner of the interest insured. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Change of beneficiary. — See Kerr's Cyc. C. C. § 2538 and note pars. 1, 2. Cognate sections. — See Kerr's Cyc. C. C. §§ 2553-2557 and notes. § 259.5. TRANSFER OF THE THING INSURED. 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. History: Enacted March 21, 1872. §2594. OPEN AND VALUED POLICIES. A policy is either open or valued. History: Enacted March 21, 1872. § 2595. OPEN POLICY, WHAT. 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. History: Enacted March 21, 1872. 1346 Tit.XI,ch.I,art.VI.] valued policy. §§2596-2598 §2596. VALUED POLICY, WHAT. A valued policy is one which expresses on its face an agreement that the thing insured shall be valued at a specified sum. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 98 C. 1, 7, 32 P. 705, 707 (cited). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Overvaluation of property. — See Kerr's Cyc. C. C. § 2580 and note pars. 16, 17; 29 A. D. 616-621. Valuation in policy of marine insurance. — See Kerr's Cyc. C. C. § 2736 and note. §2597. RUNNING POLICY, "WHAT. A running policy is one which contemplates* successive insurances, and which ' provides that the object of the policy may be from time to time defined, especially as to the subjects of insurance, by additional statements or indorsements. History: Enacted Marcli 21, 1872. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to marine insurance, see Kerr's Cyc. C. C. §§ 2597, 2655-2746 and notes. §2598. EFFECT OF RECEIPT. An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwithstand- ing any stipulation therein that it shall not be binding until the premium is actually paid. History: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 83 C. 246, 255, 259, 17 A. S. 233, 23 P. 869, 872, 873 (nppli.d); 61 P. 784, 785 (effect of provision is simply to make acknowlodg- ment of receipt of premium conclusive so far as to make policy binding — before code point was disputed); 132 C. 68, 70, 72, 64 P. 97 (construed). As to effect of tender, see Kerr's Cyc. C. C. § 1485 and note. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Date when policy takes effect. — See Kerr's Cyc. C. C. § 2586 and note par. 13. 1347 ff § 2599 CIVIL CODE. [Div.III,Pt.IV. Premium — When earned. — See Kerr's Cyc. C. C. § 2616 and note. Promise to pay premium at future time. — See Kerr's Cyc. C. C. § 2586 and note par. 27. Receipt as evidence of payment. — See Kerr's Cyc. C. C. § 1473 and note pars. 74-94. § 2599. AGREEMENT NOT TO TRANSFER. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Assignment of insurance, when valid, and what constitutes. — See 56 A. D. 747-755. Neg-otiability of policy. — See Kerr's Cyc. C. C. § 2542 and note. 1348 Tit.XI.ch.I.art.VII.] WARRANTY. FORM. §§2603,2604 ARTICLE VII. WARRANTIES. § 2603. TA'arranty, express or implied. § 2604. Form. [No particular words necessary.] § 2605. Warranty must be in policy. § 2606. Past, present, and future warranties. § 2607. Warranty as to past or present. § 2608. Warranty as to the future. § 2609. Performance excused. § 2610. What acts avoid the policy. § 2611. Policy may provide for avoidance. § 2612. Breach without fraud. §2003. WARRAMY, EXPRESS OR IMPLIED. A war- ranty is either express or implied. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 122 C. 595, 599, 55 P. 417. As to many miscellaneous matters as to insurance, see notes. §§ 414, 2527, ante. As to warranties, see note, § 2527, ante. Application as part of contract. — See Kerr's Cyc. C. C. § 2605 and note pars. 2, 3. Conditions in fire policy as to keeping, preserving-, and pro- ducing papers. — See 51 L. 698-715. Exemption of insurer from liability. — See Kerrs Cyc. C. C. § 2610 and note par. 12. Marine Insurance — Implied warranties. — See Kerr's Cyc. C. C. §§ 2681-2688 and notes. Pleading — Performance of conditions. — See Kerr's Cyc. C. C. § 2610 and note pars. 22-29. Waiver of violation of warranty. — See Kerr's Cyc. C. C. § 2610 and note pars. 42-48. §2604. FORM. [>(► PARTK ILAR WORDS NECESSARY.] No particular form of words is necessary to create a war- ranty. IliMiory: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 5 pars, annotation. As to construction of policy, see Kerr's Cyc. C. C. § 2586 and note pars. 10, 11. 1349 §§ 2605-2607 CIVIL CODE. [Div.III,Pt.IV. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Application as part of contract. — See Kerr's Cyc. C. C. § 2605 and note pars. 2, 3. Construction of warranty. — See Kerr's Cyc. C. C. § 2603 and note par. 4. Parol contract as valid. — See Kerr's Cyc. C. C. § 2586 and note par. 24. § 2605. WARRANTY MUST BE IN POLICY. Every express warranty, made at or before the execution of a policy, must be contained in the policy itself, or in another instrument signed by the insured and referred to in the policy, as making a part of it. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 255. See Kerr's Cyc. C. C. for 4 pars, annotation. 25 P. 260, 261 (cited); 89 C. 203, 208, 23 A. S. 460, 26 P. 872 (cited on rehearing); 130 F. 743, 744, 65 C. C. A. 127 (cited with §§ 2607. 2608). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Policy stipulating that representation is warranty. — See Kerr's Cyc. C. C. § 2611 and note par. 14. Representations in application.— See 29 A. R. 575-578; 33 A. R. 832-838; 59 A. R. 816-822. Representation, what. — ^See Kerr's Cyc. C. C. § 2571 and note. §2606. PAST, PRESENT, AND FUTURE WARRANTIES. A warranty may relate to the past, the present, the future, or to any or all of these. History: Enacted March 21, 1872. As to different kinds of warrants, see Kerr's Cyc. C. C. §§ 2606- 2608 and notes. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. § 2607. W ARRANTY AS TO PAST OR PRESENT. A state- ment 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. History: Enacted March 21, 1872. 1350 t Tit.XI,ch.I,art.VII.] WARRANTY. §§2608.2609 See Kerr's Cyc. C. C. for 8 pars, annotation. 66 C. 361, 303. 5 P. 617, 618 (applied); 67 C. 138, 440. 7 P. 817 (applied); 88 C. 497, 504, 22 A. S. 324. 26 P. 509 (construed); 130 F. 743, 744. 65 C. C. A. 127 (cited with §§2605, 2608). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Agent's misstatement in application. — See Kerr's Cyc. C. C. § 2580 and note par. 2. Definition of warranty. — See Kerr's Cyc. C. C. § 2603 and note par. 5. New deflnitifjn of warranty not created. — See Kerr's Cyc. C. C. ji 2605 and note i)ar. 4. §260S. WARR.\>'TY AS TO THE FUTUKE. A statement in a policy, which imports that it is intended to do or not to do a thing which materially affects the risk, is a warranty that such act or omission shall take place. HlMtory: Enacted March 21. 1872. See l-Cerrs Cyc. C. C. for 7 pars, annotation. 137 C. 596, 597, 70 P. 660 (applied); 130 F. 743. 74 1. 65 C. C. A. 127 (cited with §§2605, 2607). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. Cliange of occupancy. — See Korr'.s Cyc. C. C. § 2610 and note pars. 7, 8. New definition of warranty nut created. — See Kerr's Cyc. C. C. § 2605 and note par. 4. Violation of mat. -rial warranty. — See Kerr's Cyc. C. C. 5 2610 and note. Watchman stipulated to bo kei)t. — See Kerr's Cyc. C. C. J 2610 and note. §2«0J). rEIJFOK.MANCE EXCISEI). Wlion, before the time arrives for the performance of a warranty relating; to the future, a loss insured aprainst happens, or performance becomes unlawful at the i)lace of the contract, or imiiosslhle, the omission to fulfil tho warranty does not avoid the policy. Ili.slirry: Knnctod March 21, ISTl'- nm.n.l.Mi M:ir.)i HO. ISTI. Code Amdls. 1S73-4. pp. 255-' As to many miscellaneous matti.r.s as to insurance, see notes. S§ 414, 2527, aJite. Riglit to rescind. — See Kerr's Cyc. C. C. § 2583 and note. 1.351 § 2610 CIVIL CODE. [Div.III,Pt.IV § 2610. WHAT ACTS AVOID THE POLICY. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 50 pars, annotation. 86 C. 348, 251, 21 A. S. 33, 24 P. 1018 (cited). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to negligence of insured, see Kerr's Cyc. C. C. § 2629 and note. As to rescission of contracts generally, see Kerr's Cyc. C. C. §§ 1688-1691 and notes. As to transfer of interest in partnership property, see Kerr's Cyc. C. C. § 2557 and note par. 3. Application as part of contract.- — See Kerr's Cyc. C. C. § 2605 and note pars. 2, 3. Enemies of insured — Failure to state existence of. — See Kerr's Cyc. C. C. § 2563 and note par. 3. Exclusive grounds for rescission.^ — See Kerr's Cyc. C. C. § 2580 and note par. 8. Falsit5^ of representations. — See Kerr's Cyc. C. C. § 2575 and note. Foreclosure proceedings with knowledge of insured. — See Kerr's Cyc. C. C. § 2608 and note par. 3. Forfeiture of life insurance by false representations with respect to previous applications for insurance. — See 55 L. 122- 139. Fraud — Breach of warranty without. ^See Kerr's Cyc. C. C. § 2612 and note. Hushand and wife must join in rescission, when. — See Kerr's . Cyc. C. C. § 2586 and note par. 19. Incendiary danger — Apprehension of. — See Kerr's Cyc. C. C. § 2561 and note par. 6. Innocent misrepresentations as to health of insured when he has undiscovered disease. — See 53 L. 193-205. Liens and encumbrances. — See Kerr's Cyc. C. C. § 2611 and note par. 6. Local disease concealed. — See Kerr's Cyc. C. C. § 2562 and note par. 2. Paid-up policy in lieu of original. — See Kerr's Cyc. C. C. § 2586 and note pars. 22, 23. Power of agent to waive conditions with respect to notice, etc. —See 31 A. S. 513, 514. Provision in policy for avoidance. — See Kerr's Cyc. C. C. § 2611 and note. 1352 I Tit.XI,ch.I,art.VII.] AVOIDANCE. §§2611,2612 Renewal of forfeited policy.— See Kerr's Cyc. C. G. § 2586 and note 30. Replication denying breach of warranty of title. — See Kerr's Cyc. C. C. § 2546 and note par. 6. Waiver of forfeiture. — See 53 A. S. 526. What constitutes waiver. — See 25 A. S. 681. §2611. POLICY MAY PROVIDE lOK AVOIDANCE. A policy may declare that a violation of specified provisions thereof shall avoid it, otherwise the breach of an immaterial provision does not avoid the policy. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 66 C. 361, 363, 5 P. 617, 618 (applied); 67 C. 438, 441, 7 P. 81.7 (cited); 112 C. 548, 559, 44 P. 922 (cited); 122 C. 595, 599, 55 P. 417 (referred to); 143 C. 287, 291, 77 P. 63 (applied); 46 F. 355, 356 (applied). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to waiver of forfeiture, see Kerr's Cyc. C. C. § 2610 and note par. 42. Foreclosure proceedings with knowledge of insured.— See Kerr's Cvc. C. C. § 2608 and note par. 2; 84 A. S. 20. Negligence of insured.— See Kerr's Cyc. C. C. § 2629 and note. Paid-up policy in lieu of original.— See Kerr's Cyc. C. C. § 2586 and note pars. 22, 23. Renewal of forfeited policy.— See Kerr's Cyc. C. C. § 2nS6 and note par. 30. Waiver of forfeiture.— See Kerr's Cyc. C. C. § 2610 and note pars. 42-48.- §2612. BREACH ^VITHOIT FRAUD. A breach of war- ranty, 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. HlMtory: Enacted March 21. 1S72. See Kerr's Cyc. C. C. for 5 pars, annotation. 67 C. 438, 440, 7 P. 617 (cited). As to many miscellaneous matters as to iiusurance, .see notes. §§ 414, 2527, ante. Non-forfeiture clause— Right to paid-up policy.— See Kerr s Cyc. C. C. § 450 and note. 1353 §§ 2616, 2617 CIVIL CODE. [Div.III.Pt.IV. Pleading — Performance of conditions. — See Kerr's Cyc. C. C. § 2610 and note pars. 22-29. Return of premium for fraud. — See Kerr's Cyc. C. C. § 2619 and note. Waiver of violation of warranty. — See Kerr's Cyc. C. C. § 2610 and note par. 42. ARTICLE VIII. PREMIUM. § 2616. When premium is earned. § 2617. Return of premium. § 2618. When not allowed. § 2619. Return for fraud. § 2620. Over-insurance by several insurers. § 2621. Contribution. § 2622. Proportionate contribution. §2616. WHEH PREMIUM IS EARNED. An insurer is entitled to payment of the premium as soon as the thing insured is exposed to the peril insured against. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 53 pars, annotation. 86 C. 248, 252, 21 A. S. 33, 24 P. 1018, 1019 (construed). As to assessments, see note § 2527, ante. As to forfeiture for non-payment of premium, see 1 L. 256; 9 L. 317. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to premiums, see note § 2527, ante. As to receipt in policy, how far conclusive of payment, see Kerr's Cyc. C. C. § 2598. As to waiver of conditions requiring payment before delivery of policy, see 57 A. R. 514. As to waiver of payment of premium, what amounts to, see 29 A. R, 777. § 2617. RETURN OF PREMIUM. A person insured is enti- tled to a return of premium, as follows: 1. To the whole premium, if no part of his interest in the thing insured be exposed to any of the perils insured against. 2. Where the insurance is made for a definite period of 1354 Tit.XI,ch.I,art.VIII.] KETURN— FRAUD. §§2618.2619 time, and the insured surrenders his policy, to such propor- tion of the premium as corresponds with the unexpired time, after deducting from the whole premium any claim for loss or damage under the policy which has previously accrued. HiMtory: Enacted March 21, 1S72; amendt'd Martli 30, 1S74, Code Amdts. 1873-4, p. 2.5G. See Kerr's Cyc. C. C. for 6 pars, annotation. 86 C. 248, 253, 254 (applied but erroneously cited as § 1542), 21 A. S. 33 (same error), 24 P. 1018, 1019 (same error); 150 C. 346, 354, 89 P. 93 (cited); 150 C. 510, 518, 89 P. 130 (return of premium). As to many miscellaneous matters as to insui'ance, see notes, §§ 414. 2527, ante. As to return of premium for fraud, see Kerr's Cyc. C. C. § 2619 and note. §2618. WHEN IVOT ALLOWED. If a peril insured against has existed, and the insurer has been liable for any period, however short, the insured is not entitled to return of pre- miums, so far as that particular risk is concerned. History: Enacted Marcli 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4. p. 256. See Kerr's Cyc. C. C. for 2 pars, annotation. 86 C. 248, 253 (applied but erroneously cited as § 1543), 21 A. S. 33 (same error). 24 P. 1018. 1019 (same error). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. §2619. KETrU> FOR FKAl'I). A person insured is enti- tled to a return of the ])remium when the contract is voidable, on account of the fraud or misrepresentation of the insurer, or on account of facts, of the existence of which the insured was ignorant without his fault; or when, by any default of the insured other than actual fraud, the insurer never incur- red any liability under the policy. IliNtory: Enacted Marcli 21. 1,S72. See Kerr's Cyc. C. C. for 2 pars, annotation. 86 C. 248, 253 (applied but erroneously cited as § l.">44), 21 A. S. 33 (same error), 24 P. 1018, 1019 (same error). As to many miscellaneous matters as to Insurance, see notes, §§ 414, 2527, ante. 1355 §§ 2620-2622 CIVIL CODE. [Div.III,Pt.IV. § 2620. OVER-IJfSURANCE BY SEVERAL INSURERS. In case of an over-insurance by several insurers, the insured" is entitled to a ratable return 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. HLstory: Enacted March 21, 1872. As to dnuble insurance, see Kerr's Cyc. C. C. §§ 2641, 2642 and notes. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. §2621. C;0?iTRIBUTION. When 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. History: Enacted March 21, 1872. As to contribution in cases of double insurance, see post § 2642. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. §2622. PROPORTIOIVATE CONTRIBUTION. When an over-insurance is effected by successive policies, those only contribute to a return of the premium who are exonerated by prior insurances from the liability assumed by them, and in proportion as the sum for which the premium was paid exceeds the amount for which, on account of prior insurance, they could be made liable. History: Enacted March 21, 1872. 1356 Tit.XI,ch.I,art.TX.] PERILS. §§ 2626, 2627 ARTICLE IX. LOSS. § 2626. Perils, remote and proximate. § 2627. Loss incurred in rescue from peril. § 2628. Excepted perils. § 2629. Negligence and fraud. § 2626. PERILS, 1{E3I()TE AND PR(>XL>IATE. An 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. As to loss by Are, what included within, see 23 A. S. 915. As to loss for which insurer is liable, see 36 A. S. 852. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to negligence of insured, see Kerr's Cyc. C. C. § 2629 and note. As to right to proceeds, "heirs," who entitled as, see 44 A. S. 404. As to what are "perils at sea," see Kerr's Cyc. C. C. § 2199 and note. As to when liability for loss is fixed, see 3 L. 523. §2627. LOSS I.XURHED I> RESCUE FROM PERIL. 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. History: Enacted March 21, 1872. 1357 §§ 2628, 2629 CIVIL. CODE. [Div.III.Pt.IV. §2628. EXCEPTED PERILS. Where a peril is specially excepted in a contract of insurance, a loss, which would not have occurred but for such peril, is thereby excepted; although the immediate cause of the loss was a peril which was not excepted. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to when more than three-fourths of building left standing, see Kerr's Cyc. C. C. § 2627, note. §2629. NEGLIGENCE AND FEAUD. An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of his agents or others. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 256. See Kerr's Cyc. C. C. for 9 pars, annotation. 67 C. 27, 28, 7 P. 4 (construed); 76 C. 235, 237, 18 P. 267, 268 (construed); 112 C. 548, 557 (construed), 558 559 (referred to), 44 P. 922; 25 P. 260, 261 (applied); 123 F. 820, 825 (applied — plead- ing); 133 F. 636, 647 (construction placed on the statute by the Supreme Court of California not sustainable). As to liiany miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. 1358 Tit.XI.ch.I.art.X.l NOTICE OF LOSS. §§2633,2634 ARTICLE X, NOTICE OF LOSS. § 2633. Notice of lo-ss. § 2634. Preliminary proofs. § 2635. Waivers of defects in notice, etc. § 2636. "Waiver of delay. § 2637. Certificate, when dispensed with. § 2«33. >OTICE OF LOSS. In case of loss upon an insur- ance against fire, an insurer is exonerated, if notice thereof be not given to him by some jierson insured, or entitled to the benefit of the insurance, without unnecessary delay. HiMtory: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, pp. 256-7. See Kerr's Cyc. C. C. for 12 pars, annotation. As to agreements to submit disputes to arbitration, sec 2 A. S. 565. As to many miscellaneous matters as to insurance, see notes, IS 414, 2527, ante. As to notice and proof of loss, see note § 2527, ante. As to waiver of proofs of loss, see 1 L. 216; 7 L. 81; 8 L. 77. As to when insurance adjustments may be opened, see 35 A. R. 775. §2034. PKELIMINAUY PROOFS. When preliminary proof of loss is required 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. History: Knacttd March 21, 1872. See Kerr's Cyc. C. C for 11 pars, annotation. As to conclusiveness of proof of loss as against insured or his beneficiaries, see 44 L. 846. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to proof of loss; conditions to impede or hinder; when offer of proofs would be in vain, see 7 L. 81. As to waiver by requiring further proofs of loss, see 9 A. S. 236. 1359 §§ 2635-2637 CIVIL CODE. [Div.III,Pt.IV. § 2635. WAIVERS OF DEFECTS IJf NOTICE, ETC. All de- fects in a notice of loss, or in preliminp.ry 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. History: Enacted March 21, 1872. See TTerr's Cyc. C. C. for 11 pars, annotation. 98 C. 241, 243, S3 P. 195, 196 (applied). As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. §2636. WAIVER OF DELAY. Delay in the presentation to an insurer of notice or proof of loss is waived, if caused by any act of his, or if he omits to make objection promptly and specifically upon that ground. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to forfeiture by failure to furnish proofs of loss within stipulated time, see 18 L. 85. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. §2637. CERTIFICATE, WHEN DISPENSED WITH. If a policy requires, by way of preliminary 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 person to give it, then to furnish reasonable evidence to the insurer that such refusal was not induced by any just grounds of disbe- lief in the facts necessary to be certified. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 88 C. 152, 153, 157, 26 P. 103, 105 (applied). As to false proofs for policies, see Kerr's Pocket Pen. C. § 549. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. 1360 Tit.XI,ch.I,art.XI.] double INSURANCE. §§ 2641, 2642 ARTICLE XI. DOUBLE INSURANCE. § 2641. Double insurance. § 2642. Contribution in case of double insurance. § 2641. DOUBLE INSURANCE. A double insurance exists where the same person is insured by several insurers sepa- rately in respect to the same subject and interest. History: Enacted Marcli :il, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to conditions requiring notice of other insurance to be indorsed on fire policy, see 64 A. D. 221. ^ ,— oo a As to double insurance— Definition of.— See 88 A. D. 4<.; -8 A. S 821- 15 L. 127; 1 L. ed. 867; 3 W. & P. 2185. Same— Insurance by carrier and by owner of goods as.— See 11 A. C. 960. ^ ^^^ Same— What constitutes, for purposes of apportionment.— bee 15 L. 127. ^ ^ As to many miscellaneous matters as to insurance, see notes. §§ 414, 2527, ante. . As to subsequent insurance against fire, when avoids policj. see 20 A. R. 319. „. As to waiver of conditions against other insurance, see 28 A. R. 602. .,_ As to waiver of conditions against ovennsurance, see _• A. u. 597 As to what constitutes double insurance for purpose of appor- tionment of loss, see 15 L. 127. ^ As to what constitutes other insurance, see 43 A. R. --i. §2642. COMKIIU TI(»\ I> CASE OF IMKBLE INSUR- ANCE. In case of double insurance, the several insurers are liable to pay losses thereon as follows: 1. In fire insurance, each insurer must contribute ratably towards the loss, without regard to the dates of the several policies. 2. In marine insurance, the liability of the several insurers for a total loss, whether actual or constructive, where the policies are not simultaneous, is in the order of the dates of 1361 § 2642 CIVIL CODE. [Div.III.Pt.IV. the several policies; no liability attaching to a second or other 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 date upon the same date, they are deemed to be simultaneous, 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 257. As to joining of insurers in separate policies in action for loss, see Kerr's Cyc. C. C. P. § 383 and note. As to liability of successive insurers, see 28 A. D. 121. As to many miscellaneous matters as to insurance, see notes, §§ 414, 2527, ante. As to return of premium by successive insurers, see Kerr's Cyc. C. C. § 2622. As to when insurer cannot defend against loss, see Kerr's Cyc. C. C. § 2642, note. 1362 Tit.XI,ch.I,art.Xri.] REINSURANCE. §§ 2646, 2647 ARTICLE XII. REINSURANCE. §2646. Reinsurnnce, • wliat. § 2647. Disclosurf.s required. § 2648. Reinsurance presumed to be against liability. § 2649. Original insured has no interest. §2646. REINSUKA>"('E, WHAT. A contract of reinsur- ance is one by which an insurer procures a third person to insure him against loss or liability by reason of such original insurance. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 68 C. 430, 432, 9 P. 712, 713 (applied); 107 C. 327, 330, 48 A. S. 140, 40 P. 431, 28 L. 692 (applied); 56 P. 50, 52 (instance of con- tract much broader than one of mere technical reinsurance); 127 C. 464, 470, 59 P. 897 (referred to). REINSURANCE. As to many miscellaneous matters as to insurance, see note § 2527, ante. As to the remedies of the parties tliereunder. — See 45 A. S. 442. Action on policy of. — See 10 L. 424. Construction of contract of. — See 10 L. 423. Same — Effect of reinsurance, insolvency of original insurer. — See 10 L. 432. Definition of. — See 43 A. R. 413: 10 L. 423; 7 W. & P. 6052. Liability of reinsurance in case of insolvency of original in- surer. — See 10 L. 424. Proceeds of reinsurance as special fund in case of insolvency. —See 38 L. 110. §2647. I>IS( LOSl iniS IMMH IHED. Where an insurer obtains reinsurance, he must communicate all the representa- tions of the original insured, and also all the knowledge and information he i)ossesses, whether previously or subsequently acquired, which are material to the risk. History: Enacted March 21, 1872. 1363 §§2648,2649 CIVIL CODE. [DiV.III.Pt.IV. §2648. REINSURANCE PRESUMED TO BE AGAINST LIABILITY. A reinsurance is presumed to be a contract of indemnity against liability, and not merely against damage. History: Enacted March 21, 1872. 107 C. 327, 330, 48 A. S. 140, 40 P. 431, 28 L. 692 (applied). See Kerr's Cyc. C. C. § 2646 and note. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2649. ORIGINAL INSURED HAS NO INTEREST. The original insured has no interest in a contract of reinsurance. History: Enacted March 21, 1872. 68 C. 431, 433, 9 P. 712 (applied). See Kerr's Cyc. C. C. § 2646. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. 1364 • Tit.XI,ch.II,art.I.] MARINE INSURANCE. § 2655 CHAPTER II. MARINE INSURANCE. [For Commissioners' comment on this chapter, see Kerr's Cyc. C. C] Article I. Definition of Marine Insurance, § 2655. II. Insurable Interest, §§ 2659-2665. III. Concealment, §§ 2669-2672. IV. Representations, §§ 2676, 2677. V. Implied Warranties, §§ 2681-2688. VI. The Voyage and Deviation, §§ 2692-2697. VII. Loss, §§2701-2712. VIII. Abandonment, §§ 2716-2732. IX. Measure of Indemnity, §§ 2736-2746. ARTICLE I. DEFINITION OF MARINE INSURANCE. S 2655. Marine insurance, wliat. §2«r)r). MARI>E INSURANCE, WHAT. Marine insurance is an insurance against risks connected with navigation, to which a ship, cargo, freightage, profits, or other insurable interest in movable property, may be exposed during a certain voyage or a fixed period of time. History: Enacted March 21, 1872. MARINE INSURANCE — GENERALiL-Y. As to Insurable interests, see Kerr's Cyc. C. C. 2546-2557 and notes; also note 2527, ante. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to what are perils of the sea, see 41 A. D. 281. Abandonment under. — See 9 L. 831. Collisions, liability for injuries caused by to another vessel by the insured vessel. — See 54 A. D. 787; see "Perils of the sea," this note. 1365 § 2655 CIVIL CODE. [Div.III.Pt.IV. Contractual limitation of time in which to bring action, be- gins to run when. — See 47 L. 708. Deviation by necessity, effect of upon policy. — See 58 A. D. 673. Deviation of vessel, what is and effect of. — See 33 A. D. 60. Effect of voluntary exposure to peril. — See 1 L. N. S. 1095. Foreign court of admiralty, conclusiveness of judgment of on policy of marine insurance. — See 20 L. 669. Goods stowed on deck and jettisoned, when covered by polic5\ —See 86 A. D. 500. Judgment of foreign court of admiralty on policy of, con- clusiveness of. — See 20 L. 669. Jurisdiction of admiralty — As to maritime insurance. — See 66 L. 200, 234. Same — ^Conclusiveness of judgment of foreign court of ad- miralty on policy of marine insurance. — See 20 L. 669. Same — On Lloyd policies. — See 55 L. 193. Liability for injuries caused by another vessel through col- lision with the insured vessel. — See 54 A. D. 787. Loss due to neglect to employ a pilot. — See 33 A. D. 599. Maritime lien for. — See 70 L. 389. "Perils of the sea," what are. — See 41 A. D. 281; 6 W. & P. 5295. Same — Act of God as. — See 31 A. D. 745; 46 A. D. 587; 41 L. ed. 1039; 6 W. & P. 5297. Same — Blockade as. — See 3 A. D. 319; 6 W. & P. 5298. Same — Capture as. — See 24 A. D. 716; 6 W. & P. 2598. Same— Collision as. — See 51 A. D. 128; 54 A. D. 776, 787; 10 L. ed. 371; 14 L. ed. 452; 6 W. & P. 2598. Same — Dampness and sweating as. — See 13 L. ed. 985; 21 L. ed. 719; 6 W. & P. 5299. Same — Embezzlement is not. — See 6 W. & P. 5299. Same — Entry of water through port hole as. — See 23 L. 746; 6 W. & P. 5299. Same — Escape of steam as. — See 6 W. & P. 5299. Same — Explosions as. — See 9 A. S. 184; 43 L. ed. 234; 6 W. & P. 5300. Same — Fires as. — See 18 L. ed. 172; 6 W. & P. 5300. Same — Grounding and stranding as. — See 49 A. D. 81; 6 W. & P. 5300. Same — Injury by worms as. — See 6 W. & P. 5300. Same — Jettison as. — See 15 L. ed. 58, 584; 6 W. & P. 5300. Same — Leakage as. — See 2 A. D. 493; 6 W. & P. 5301. Same — Negligent stowage of cargo as. — See 6 W. & P. 5301. Same — Ordinary wear and tear. — See 6 W. & P. 5301. Same — Sinking of ship by man-of-war as. — See 6 W. & P. 5301. Same — Stress of weather as. — See 3 L. ed. 189; 6 W, & P. 5301. 1366 Tit.XI,ch.II,art.II.] INSURABLE INTEREST. §§2659,2660 Same— Swell caused by passing steamer as.— See 6 W. & P. Same— Vermin on shipboard as.— See 6 W. & P. 5301. Same-Wetting of cargo as.-See 38 A. D. 747, 6 W. & P. 5301. Policies, severability of contract.— See 19 L. 218. Right to recover under "'sue and labor" clause in marme m- surance for moving cargo over land.— See 1^^^- N"^^" /_1/^- Seaworthiness— Implied warranty of.— See 58 A. D. bll. Same— What is within the meaning of the law of.— See 66 A. D. 33. Technical total loss.— See 9 L. 832. , » t^ icr Warranty of seamanship, what embraced m.— See 1 A. V. ibb. ARTICLE II. INSURABLE INTEREST. § 2659. Insurable interest in a ship. § 2660. Interest reduced by bottomry. § 2661. Freightage, what. § 2662. Expected freightage. § 2663. Interest in expected freightage, what. § 2664. Insurable interest in profits. § 2665. Insurable interest of charterer. § 2659. INSURABLE INTEREST IN A SHIP. The owner of a ship has in all cases an insurable interest in it, even when it has been chartered by one who covenants to pay him its value in case of loss. History: Enacted March 21, 1872. As to definition of bottomry, see Kerr's Cyc. C. C. § 3017 and note; 19 L. ed. 651; 1 W. & P. 848. As to many miscellaneous matters as to insurance, see notes SS 414, 2527, ante. ^^ , _,^„ As to rights of bottomry holder and insurer, see Kerr s Cyc. C. C. § 3025 and note. §2660. INTEREST REDUCED BY BOTTOMRY. The in- surable interest of the owner of a ship hypothecated by bot- tomry is only the excess of its value over the amount secured by bottomry. History; Enacted March 21, 1872. 1367 §§ 2661-2665 CIVIL CODE. [Div.III,Pt.IV. As to insurable interest, generally, see Kerr's Cyc. C. C. §§ 2546 et seq. and notes. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2661. FREIGHTAGE, WHAT. Freightage, in the sense of a policy of marine insurance, signifies all the benefit deriveii by the owner, either from the chartering of the ship or its employment for the carriage of his own goods or those of others. History: Enacted March 21, 1872. As to definition of marine insurance, see Kerr's Cyc. C. C. § 2655 and note; 5 W. & P. 4370. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. § 2662. EXPECTED FREIGHTAGE. The owner of a ship has an insurable interest in expected freightage which he would have certainly earned but for the intervention of a peril insured against. History: Enacted March 21, 1872. § 2663. INTEREST IN EXPECTED FREIGHTAGE, WHAT. The interest mentioned in the last section exists, in the case of a charter party, when the ship has broken ground on the chartered voyage, 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 specified voyage. History: Enacted March 21, 1872. §2664. INSURABLE INTEREST IN PROFITS. One who has an interest in the thing from which profits are expected to proceed, has an insurable interest in the profits. Hi.story: Enacted March 21, 1872. §2665. INSURABLE INTEREST OF CHARTERER. The charterer of a ship has an insurable interest in it, to the extent that he is liable to be damnified by its loss. Hi.story: Enacted March 21, 1872. 1368 Tit.XI,ch.II,art.III.] concealment. §§ 2669-2671 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 question. §2669. I>F0R3IATI0> MUST BE COMMUMCATED. In marine insurance each partj" is bound to communicate, in addition to what is required by section two thousand five hundred and sixty-three, all the information which he pos- sesses, material to the risk, except such as is mentioned in- section two thousand five hundred and sixty-four, and to state the exact and whole truth in relation to all matters that he represents, or upon inquiry assumes to disclose. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to concealment in insurance, generally, see Kerr's Cj'c. C. C. §§ 2561, 2672 and notes. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2670. MATERIAL INFORMATiOX. In marine insur- ance, information of the belief or expectation of a third per- son, in reference to a material fact, is material. Hist«fry: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to when representation of expectation avoids contract, see post § 2677. §2671. PRESrMPTK^N OF KXMVLEIHJE OF LOSS. A person insured by a contract of marine insurance is presumed to have bad knowledge, at tbe 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 commun- ication. History: Enacted March 21, 1872. 1369 §§ 2672-2677 CIVIL CODE. [Div.III,Pt.IV. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 2671, note. §2672. COINCEALMEIVTS WHICH ONLY AFFECT THE RISK IX QUESTION. A concealment in a marine insurance, in respect to any of the following matters, does not vitiate the entire contract, hut merely exonerates the insurer from a loss resulting from the risk concealed: 1. The national character of the insured; 2. The liability of the thing insured to capture and deten- tion; 3. The liability to seizure from breach of foreign laws of trade ; 4. The want of necessary documents'; and, 5. The use of false and simulated papers. Hi.story: Enacted March 21, 1872. ARTICLE IV. REPRESENTATIONS. § 2676. Effect of intentional falsity. § 2677. Representation of expectation. §2676. EFFECT OF INTENTIONAL FALSITY. If a rep- resentation, by a person insured by a contract of marine insurance, is intentionally false in any respect, whether mate- rial or immaterial, the insurer may rescind the entire con- tract. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to representation, generally, see Kerr's Cyc. C. C. §§ 2371 et seq. and notes. §2677. REPRESENTATION OF EXPECTATION. The eventual falsity of a representation as to expectation does not, in the absence of fraud, avoid a contract of insurance. History: Enacted March 21, 1872. 1370 * Tit.XI,ch.TI,art.V.] SEAWORTHINESS. §§2681,2682 ARTICLE V. IMPLIED WARRANTIES. § 26S1. Warranty of scawortliiness. § 26S2. Soawortliiness, wliat. § 2683. When complied with. [Exceptions.! § 2684. Wliat things are required to constitute seaworthiness. § 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. AVARKA>TY OF SEA>VORTHI>ESS. In every ma- rine insurance upon a ship or freight, or freightage, or upon anything which is the subject of marine insurance, a war- ranty is Implied that the ship is seaworthy. IILstory: Enacted March 21, 1872; amended Marcli 30, 1874, Code Amdts. 1873-4, p. 257. 4 F. 153, 154 (applied with § 2683 — implied warranty as to sea- worthiness). As to definition of seaworthiness, see Kerr's Cyc. C. C. §§ 2682- 2685 and notes. As to explosion of boilers on ship at sea not being peril within policy, see Kerr's Cyc. C. C. § 2681, note. As to implied warranty of seaworthiness within the meaning of law, see 33 A. D. 37. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to what is embraced in warranty of seaworthiness, whether of the ship, the freight, or the cargo, see 1 A. D. 165. §2682. SEAWOKTHI>KSS, WHAT. A ship is seaworthy when resonably fit to perform the services, and to encounter the ordinary perils of the voyage, contemplated by the par- ties to the policy. History: Enacted March 21. 1872. As to definition of siaworthiness, see Kerr's Cyc. C. C. §§ 2683- 2685 and notes; 7 W. & P. 6362. As to many miscellaneous matters as to Insurance, see notes §§ 414, 2527, ante. 1371 §§ 2683-2685 CIVIL CODE. [Div.III,Pt.IV. §2683. WHEN COMPLIED WITH. [EXCEPTIONS.] An implied warranty of seaworthiness is complied with if the ship be seaworthy at the time of the commencement of the risk, except in the following cases: 1. When the insurance is made for a specified length of time, the implied warranty is not complied with, unless the ship be seaworthy at the commencement of every voyage she may undertake during that time; and, 2. When the insurance is upon the cargo, which, by the terms of the policy, or the description of the voyage, or the established custom of the trade, is to be transhipped at an intermediate port, the implied warranty is not complied with, unless each vessel upon which the cargo is shipped, or tran- shipped, be seaworthy at the commencement of its particular voyage. History: Enacted March 21, 1872; amended March" 30, 1874, Code Amdts. 1873-4, p. 258. 4 F. 153, 154 (applied with § 2681 — implied warranty as to sea- worthiness). As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2684. WHAT THINGS ARE KEQUIKEI) TO CONSTI- TUTE SEAWORTHINESS. A warranty of seaworthiness ex- tends 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 sufficient 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 necessary or proper stores and implements for the voyage. History: Enacted March 21, 1872. § 2685. DIFEERENT DEGREES OF SEAWORTHINESS AT DIFFERENT STAGES OF THE YOYAGE. Where different portions of the voyage contemplated by a policy differ in respect to the things requisite to make the ship seaworthy therefor, a warranty of seaworthiness is complied with if, at 1372 Tit.XI,ch.II,art.V.] UNSEAWORTHINESS. §§ 2686-2688 the commencement of each portion, the ship is seaworthy with reference to that portion. Hi.story; Enacted March 21, 1872. §2686. UNSEAWORTHIXESS DUIIOG THE VOYAGE. When a ship becomes unseaworthy during the voyage to which an insurance relates, an unreasonable delay in repair- ing the defect exonerates the insurer from liability from any loss arising therefrom. History: Enacted March 21, 1872. §2687. SEAWORTHINESS FOR PURPOSES OF INSUR- ANCE ON CARGO. A ship which is seaworthy for the pur- pose of an insurance upon the ship may, nevertheless, by rea- son of being unfitted to receive the cargo, be unseaworthy for the purpose of insurance upon the cargo. History: Enacted March 21, 1872. § 2688. NEUTRAL PAPERS. Where the nationality or neu- trality of a ship or cargo is expressly warranted, it is implied that the ship will carry the requisite documents to show such nationality or neutrality, and that it will not carry any docu- ments which cast reasonable suspicion thereon. History: Enacted March 21, 1872. IZli §§ 2692-2694 CIVIL CODE. [Div.III.Pt.IV. 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 tlie insurer. §2692. VOYAGE INSURED, HOW DETERMINED. When the voyage contemplated bj' 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 usage betwen those places. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2693. COURSE OF SAILING, HOW DETERMINED. If the course of sailing is not fixed by mercantile usage, the voy- age insured by a policy is the way between the places speci- fied which, to a master of ordinary skill and discretion, would seem the most natural, direct, and advantageous. History: Enacted March 21, 1872. § 2694. DEVIATION, WHAT. Deviation is a departure from the course of the voyage insured, mentioned in the last two sections, or an unreasonable delay in pursuing the voyage, or the commencement of an entirely different voyage. Hi.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to deviation of vessel, what is, and effect of, see 33 A. D. 60. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. 1374 Tit.XI,ch.II,art.VI.] DEVIATION, PROPER. §§ 2695-2697 §2695. WHEX PROPER. A deviation is proper: 1. When caused bj' circumstances over whicli neither the master nor the owner of tlie sliip has any control ; 2. When necessary to comply with a warranty, or to avoid a peril, whether insured against or not; 3. When made in good faith, and upon reasonable grounds of belief in its necessity to avoid a peril; or, 4. W^aen made in good faith, for the purpose of saving human life, or relieving another vessel in distress. History: Enacted March 21, 1872. As to effect of deviation by necessity upon marine policy, see 58 A. D. 673. As to many miscellaneous matters as to insiirance, see notes §§ 414, 2527, ante. As to when another ship may be procured in which to for- ward cargo, and liability of underwriter continue, see Kerr's Cyc. C. C. § 2695, note. § 2696. WHEN IMPROPER. Every deviation not specified in the last section is improper. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2697. DEVIATION EXONERATES THE INSURER, An insurer is not liable for any loss happening to a thing insured subsequently to an improper deviation. History: Enacted March 21, 1872. 66 C. 294, 297, 5 P. 478 (applied). See Kerr's Cyc. C. C. § 2636 and note. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. 1375 §§ 2701-2703 CIVIL CODE. [Div.III,Pt.IV ARTICLE 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, etc., when voyage is. broken up. § 2708. Cost of reshipment, etc. § 2709. "When insured is entitled to payment. § 2710. Abandonment of goods on insurance of profits [re- pealed]. § 2711. Average loss. § 2712. Insurance against total loss. § 2701. TOTAL AND PARTIAL LOSS. A loss may be either total or partial. History: Enacted March 21, 1872. As to definition of constructive total loss, see post § 2705. As to definition of loss actual or constructive, see post § 2704. As to goods stowed on deck and jettisoned, when covered by marine policy, see 86 A. D. 500. As to liability under a marine policy for injuries caused by collision to another vessel by insured vessel, see 54 A. D. 787. As to loss due to neglect to employ a pilot, see 33 A. D. 599. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to total loss either actual or constructive, see post § 2703. § 2702. PARTIAL LOSS. Every loss which is not total is partial. Hi-story: Enacted March 21, 1872. As to liability on partial loss, see post § 2737. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to one third new for old, see post § 2746. § 2703. ACTUAL AND CONSTRUCTIVE TOTAL LOSS. A total loss may be either actual or constructive. History: Enacted March 21, 1872. 1376 Tit.XI,ch.II,art.VII.] total LOSS. §§2704-2707 As to definition of actual total loss, see post § 2704. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to when actual loss presumed, see post § 2706. §2704. ACTUAL TOTAL LOSS, WHAT. 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. History: Enacted March 21, 1872. 146 C. 279, 280, 79 P. 967 (applied — construction of contract — constructive loss — actual total loss). As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2705. CO>'STKUCTIVE TOTAL LOSS. A constructive total loss is one which gives to a person insured a right to abandon, under section two thousand seven hundred and sev- enteen. History: Enacted March 21, 1872. 133 F. 636, 643 (no case for operation of doctrine of abandon- ment). As to abandonment for constructive total loss, see post §§ 2716 et seq. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2706. PKESFMED ACTUAL LOSS. An actual loss may be presumed from the continued absence of a ship without being heard of; and the length of time which is sufficient to raise this presumption dei)ends on the circumstances of the case. Hi.s<<»ry: Enacti-d March 21, 1872. § 2707. I>SUKA>( E (►> C.VKG(K ETC., W1IE> VOYACJE IS BROKEN UP. When a ship is prevented, at an intermediate Kerr's C. C— 44 1377 §§ 2708-2711 CIVIL CODE. [Div.III.Pt.IV. port, from completing the voyage, by the perils insured against, the m'aster must make every exertion to procure, in the same or a contiguous port, another ship, for the purpose of conveying the cargo to its destination; and the liability of a marine insurer thereon continues after they are thus reshipped. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 258. As to barratry of master and marines being insured against in marine policy of insurance, see Kerr's Cyc. C. C. § 2707, note. As to constructive total loss of cargo, see ante § 2616 subd. 4. As to many miscellaneous matters as to insurance', see notes §§ 414, 2527, ante. § 2708. COST OF RESHIPMENT, ETC. 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 incurred in saving cargo reshipped pursuant to the last section, up to the amount insured. History: Enacted March 21, 1872. §2709. WHEIV INSURED IS ENTITLED TO PAYMENT. Upon an actual total loss, a person insured is entitled to pay- ment without notice of abandonment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2710. ABANDONMENT OF GOODS ON INSURANCE OF PROFITS (repealed). History: Enacted Marcli 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 258. §2711. AVERAGE LOSS. Where it has been agreed that an insurance upon a particular thing, or class of things, shall be free from particular average, a marine insurer is not 1378 Tit.XI,ch.II,art.VII.] against total loss. § 2712 liable for auy 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 proportion of all general average loss assessed upon the thing insured. Himtory: Enacted March 21. 1872; amended March 30. 1874, Code Amdts. 1873-4, p. 258. 92 C. 382, 387 (erroneously cited for § 2911), 28 P. 573, 575 (correct citation). As to many iniscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2712. INSURANCE AG.VINST TOTAL LOSS. An insur- ance 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 possession, at the port of destination, of the entire thing insured. HIMory: Enacted Marcli 21, 1872: amended Marcli 30, 1S74. Cod.' Amdts. 1873-4, p. 259. 1379 §§2716,2717 CIVIL CODE. [Div.III,Pt.IV. 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. § 2723. No otlier cause can be relied on. § 2724. Effect. § 2725. Waiver of formal abandonment. § 2726. Ag-ents of the insured become agents of the insurer. § 2727. Acceptance not necessary. § 2728. Acceptance conclusive. § 2729. Accepted abandonment, irrevocable. § 2730. Freig-htag-e, how affected by abandonment of ship. § 2731. Refusal to accept. § 2732. Omission to abandon. § 2716. ABANDONMENT, WHAT. Abandonment is the act by which, after a constructive total loss, a person insured by contract of marine insurance declares to the insurer that he relinquishes to him his interest in the thing insured. History: Enacted March 21, 1872. As to definition of constructive total loss, see ante § 2705. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to requisites of abandonment, see post §§ 2718-2723. §2717. WHEN INSURED MAY ABANDON. A person in- sured by a contract of marine insurance may abandon the thing 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 against: 1. If more than half thereof in value is actually lost, or would have to be expended to recover it from peril; 1380 Tit.XI,ch.II,art.VIII.] ABANDONMENT. §§2718.2719 2. If it is injured to such an extent as to reduce its value more than one-half; 3. If the thing insured, being a ship, the contemplated voy- age 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 pru- dent man would not take under the circumstances; or, 4. If the thing insured, being cargo or freightage, the voy- age cannot be performed nor another ship procured by the master, within a reasonable time and with reasonable dili- gence, to forward the cargo, without incurring the like expense or risk. But freightage cannot in any case be abandoned, unless the ship is also abandoned. HiMtory: Enacted March 21, 1872. 146 C. 279, 280, 79 P. 967 (subds. 3 and 4 applied — construc- tion of contract — constructive loss — actual total loss). As to how freightage affected by abandonment, see post S 2730. As to many miscellaneous matters as to Insurance, see notes §§ 414, 2527, ante. As to marine Insurance; riglit to abandon; time for abandon- ment; notice' of; revocation of; acceptance and effect of; tech- nical total loss, see 9 L. 831. As to rule of one third new for old in cases of partial loss, see post § 2746. §2718. Ml'ST BE rNQlAMFIKI). An abandonment must be neither partial nor conditional. IllNtoryt Enacted Marcli 21, 1872. §2719. >V1IE\ .MAY HE .MADE. 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. HiMtory: Enacted March 21. 1872. As to effect of omitting to abandon, see post 5 2732. As to many miscellaneous matters as to insurance, see notes S$ 414. 2527, ante. 1381 §§ 2720-2725 CIVIL CODE. [Div.III,Pt.IV. § 2720. ABANDOIVMEKT MAY BE DEFEATED. 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 ineffectual. History: Enacted March 21, 1872. §2721. HOW MADE. Abandonment is made by giving no- tice thereof to the insurer, which may be done orally, or in writing. History: Enacted March 21, 1872. §2722. REQUISITES OF NOTICE. A notice of abandon- ment must be explicit, and must specify the particular cause of the abandonment, 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. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2723. NO OTHER CAUSE CAN BE RELIED ON. An abandonment can be sustained only upon the cause specified in the notice thereof. History: Enacted March 21, 1872. § 2724. EFFECT. An abandonment is equivalent to a trans- fer, by the insured, of his interest, to the insurer, with all the chances of recovery and indemnity. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to subrogation of insurer, see post § 2745. § 2725. WAIVER OF FORMAL ABANDONMENT. If a ma- rine 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 1382 Tit.XI,ch.II,art.VIII.] ACCEPTANCE. §§ 2726-2730 its proceeds or salvage, as if there had been a formal aban- donment. History: Enacted March 21, 1872. §2726. AGEMS OF THE INSURED BECOME AGEXTS OF THE IjVSURER. Upon an abandonment, acts done in good faith by those who were agents of the insured in respect to the thing insured, subsequent to the loss, are at the risk of the insurer, and for his benefit. History: Enacted March 21, 1872. §2727. ACCEPTANCE NOT NECESSARY. An acceptance of an abandonment is not necessary to the rights of the insured, and is not to be presumed from the mere silence of the insurer, upon hig receiving notice of abandonment. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to refusal to accept abandonment, see post § 2731. §2728. ACCEPTANCE CONCLUSIVE. The acceptance of an abandonment, whether express or implied, is conclusive upon the parties, and admits the loss and the sufficiency of the abandonment. Hieitory: Enacted March 21, 1872. §2729. ACCEPTED ABANDONMENT, IRREVOCABLE. An abandonment once made and accepted is irrevocable, unless the ground upon which it was made proves to be unfounded. History: Enacted March 21, 1872. §2730. FREIGHTAGE, HOW AFFECTED BY ABANDON- MENT OF SHIP. On an accepted abandonment of a ship, freightage earned previous to the loss belongs to the insurer thereof; but freightage subsequently earned belongs to the insurer of the ship. History: Enacted March 21, 1872. 1383 1I §§ 2731, 2732 CIVIL CODE. [Div.III.Pt.IV. As to abandonment of freightage, see ante § 2017 subd. 4. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2731. REFUSAL TO ACCEPT. 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. History: Enacted March 21, 1872. As to acceptance not presumed from silence, see ante § 2727. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2732. OMISSIOJf TO ABANDON. If a person insured omits to abandon, he may nevertheless recover his actual loss. History: Enacted March 21, 1872. 1384 Tit.XI,ch.II,art.IX.] valuation— LOSS. §§ 2736, 2737 ARTICLE IX. MEASURE OF 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. VALUATIOX, WHEN CONCLISIVE. A valuation in a policy of marine insurance is conclusive between the par- ties thereto in the adjustment of either a partial or total loss, 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 respondentia, before its insurance, and with- out the knowledge of the person actually procuring the insur- ance, he may show the real value. But a valuation fraudulent in fact entitles the insurer to rescind the contract. History: Enacted March 21, 1872. 133 F. 636, 643 (what does not change binding cliaracter of valuation as fixed by terms of policy). As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to valuation of profits, see post § 2740. As to valued policy of fire insurance, see post § 2756. As to valued policy on freightage or cargo, see post § 2739. §2737. PARTIAL LOSS. A marine insurer is liable upon a partial 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. History: Enacted March 21, 1872. 1385 §§ 2738-2741 CIVIL CODE. [Div.III,Pt.IV. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to measure of indemnity in case of fire insurance, see post § 2756. § 2738. PROFITS. When 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 equiva- lent to the proportion which the value of the property lost bears to the value of the whole. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527. ante. As to valuation applied to profits, see post § 2740. § 2739. VALUATION APPORTIONED. 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 applies only in proportion to such part. History: Enacted March 21, 1872. §2740. VALUATION APPLIED TO PROFITS. When profits are valued and insured by a contract of marine insur- ance, a loss of them is conclusively presumed from a loss of the pi'operty out of which they were expected to arise, and the valuation fixes their amount. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to profits, see ante § 2738. §2741. ESTIMATING LOSS UNDER AN OPEN POLICY. In estimating a loss under an open policy of marine insur- ance, the following rules are to be observed: 1. The value of a ship is its value at the beginning of the risk, including all articles or charges which add to its per- manent 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 1386 Tit.XI,ch.II,art.IX.] ARRIVAL, DAMAGED. §§ 2742-2744 laden on board, or where that cost cannot be ascertained, its market value at the time and place of lading, adding the charges incurred in purchasing and placing it on board, but without reference to any losses incurred in raising 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 freightage, 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. Hijstory: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to partial loss of ship one third new for old, see post § 2746. § 2742. ARRIVAL OF THING DAMAGED. If cargo insured against partial loss arrives at the port of destination in a damaged condition, 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 would have brought if sound. History: Enacted March 21, 1872, § 2743. LABOR A^D EXPENSES. A marine insurer is lia- ble for all the expenses attendant upon a loss which forces the ship into port to be repaired; and where it is agreed that the insured may labor for the recovery 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. History: Enacted March 21, 1872. § 2744. GENERAL AVERAGE. 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 1387 §§2745,2746 CIVIL CODE. [Div.III.Pt.IV. towards a general average loss called for by a peril insured against. History; Enacted March 21, 1872. As to general average in general, see ante §§ 2152 et seq. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. §2745. CONTWBUTION. 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 in- surer, subrogating him to his own right to contribution. But no such claim can be made upon the insurer after the separa- tion of the interests liable to contribution, nor when the insured, having the right and opportunity to enforce contri- bution from others, has neglected or waived the (the) exer- cise of that right. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 259. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to subrogation of insurer, see ante § 2724. §2746. ONE THIRD NEW FOR OLD. In the case of a partial loss of a ship or its equipments, the old materials are to be applied towards payment for the new, and whether the ship is new or old, a marine insurer 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 depreciation of only two and one half per cent for each month that it has been fastened to the ship. History: Enacted March 21, 1872. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to wrecked or damaged vessels, see Kerr's Pocket Pol. C. § 2507. 1388 Tit.XI.ch.III.] INCREASE OF RISK. §§ 2752, 2753 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. § 2757. Value of interest in policy of insurance, how may be fixed. Total or partial loss. §2752. FALSE REPRESENTATIONS (repealed). HLstory: Enacted March 21, 1872; repealed March 30, 1874', Code Amdts. 1873-4, p. 259. §2753. ALTER.VTION INCREASINO! RISK. 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 insurer, by means within the control of the insured, and increasing the risk, entitles an insurer to rescind a contract of fire insurance. HiHtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 122 C. 595, 599, 55 P. 417 (construed). As to alienation and effect on insurance, see note § 2527, ante. As to assessments, see note § 2527, ante. As to condition against keeping of petroleum or other in- flammable fluids, when violated, see 37 A. R. 650. As to explosion, liability of insurer of loss caused by; express provisions against losses by explosions; insurance against ex- plosions; marine policies, similar cases, see 19 L. 594. As to fire insurance, see note § 2527, ante. As to hazardous and prohibited articles kept in ordinary course of business, see 24 A. R. 150. As to Increase of risk, see note § 2527, ante. As to Insurable Interest in life, see note § 2527. ante. As to loss by lightning and insurance against loss by light- ning, see 26 L. 267. As to many miscellaneous matters as to Insurance, see notes §§ 414, 2527, ante. 1389 §§ 2754, 2755 CIVIL CODE. [Div.III.Pt.IV. As to meaning of "hazardous" and "extrahazardous," see 97 A. D. 798. As to premiums, see note § 2527, ante. As to respective rights of vendor and vendee, when part of purchase price has been paid, see 84 A. D. 429. As to rights of mortgagee to benefit of insurance taken in name of mortgager, see 25 L. 305. As to title, and effect of insurance, see note § 2527, ante. As to what increase of hazard results in forfeiture of fire policy, see 66 A. S. 691. As to when alterations in premises avoid fire policy, see 26 A. S. 407. As to when insurance against fire remains in force after re- moval of property, see 33 A. R. 147. As to when use or keeping of forbidden materials avoids fire policy, see 24 A. R. 150. § 2754. ALTERATION NOT INCREASING RISK. An alter- ation in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance. History: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 5 pars, annotation. 122 C. 595, 597, 599 (referred to), 600 (construed), 55 P. 417. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. § 2755. ACTS OF THE INSURED. A contract of fire insur- ance is not affected by any act of the insured subsequent to the execution of the policy, which does not violate its pro- visions, even though it increases the risk and is the cause of a loss. History: Enacted March 21, 1872. As to assignment of policy, when valid, and what constitutes, see note 56 A. D. 747. As to effect of temporary removal of property, see note 23 A. R. 143. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to when sale or alienation of property avoids policy, see note 28 A. D. 154; also see Kerr's Cyc, C. C. §§ 2753, 2754 and notes. 1390 Tit.XI,ch.III.] INDEMNITY. §§ 2756, 2757 § 2756. MEASURE OF INDEMNITY. If there is no valua- tion in the policj', the measure of indemnity in an insurance against fire is the expense it would be to the insured at the time of the commencement of the fire to replace the thing lost or injured in the condition in which it was at the time of the injury; but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine insurance. History: Enacted March 21, 1872; amended April 15, 1909, Stats, and Amdts. 1909, p. 914. In effect immediately. See Kerr's Cyc. C. C. for 3 pars, annotation. As to constructive total loss of insured building, see 56 L. 784. As to insurer's option to rebuild, see 26 L. 853. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527. ante. As to right of insurer to rebuild or repair after fire, see 11 A. R. 58. As to valued policy in marine insurance, see ante § 2736. As to what included in loss by fire, see 45 A. D. 657. As to what is total loss by fire, see 59 A. S. 810. §2757. VALUE OF INTEKEST IN POLICY OF INSUR- ANCE, HOW MAY BE FIXED. TOTAL OR PARTIAL LOSS. Whenever the insured desires to have a valuation named in his policy, insuring any building or structure against fire, he may require such building or structure to be examined by the insurer and the value of the insured's interest therein shall be thereupon fixed by the parties. The cost of sueli examination shall be paid for by the insured. A clause shall be inserted in such policy stating substantially that the value of the insured's interest in such building or structure has been thus fixed. In the absence of any change increasing the risk without the consent of the insurer or of fraud on the part of the insured, then in case of a total loss under such policy, the whole amount so insured upon the insured's inter- est in such building or structure, as stated in the policy upon which the insurers have received a premium, shall be paid, and in case of a partial loss the full amount of the partial loss shall be so paid, and in case there are two or more 1391 § 2762 CIVIL CODE. [DiV.III.Pt.IV. policies covering the insured's interest therein, each policy shall contribute pro rata to the payment of such whole or partial loss. But in no case shall the insurer be required to pay more than the amount thus stated in such policy. This section shall not prevent the parties from stipulating in such policies concerning the repairing, rebuilding or replacing buildinp-s or structures wholly or partially damaged or de- stroyed. History: Enacted March 23, 1901, Stats, and Amdts. 1900-1, p. 572. CHAPTER IV. LIFE AND HEALTH INSURANCE. § 2762. Insvirance upon life, when payable. § 2763. Insurable interest. § 2764. Assignee, etc., of life policy need have no interest. § 2765. Notice of transfer. § 2766. Measure of indemnity. § 2762. INSURANCE UPON LIFE, WHEN PAYABLE. An insurance upon life may be made payable on the death of the person, or on his surviving a specified period, or periodic- ally so long as he shall live, or otherwise contingently on the continuance or determination of life. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. As to assessments, see note § 2527, ante. As to beneficiary of life policy, results of death of before that of the person wliose life is insured, see 11 A. S. 721. As to insurable interest in life, see note § 2527, ante. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to mutual life, health, and accident insurance corporations, see 'Kerr's Cyc. C. C. § 437, note. As to payment of life policy to whom made, see 2 L. 161. As to premiums, see note § 2527, ante. As to proximate cause of death, see 17 L. 753. As to wliat constitutes total disability of insured, see 38 L. 529. 1392 Tit.XI,ch.IV.] INSURABLE INTEREST. § 2763 As to who are "heirs" within meaning of life insurance poli- cies, see 30 L. 593. As to who are legal representatives within meaning of life insurance policies, see 30 L. 609. § 2763. INSURABLE INTEREST. Every person has an in- surable interest in the life and health: 1. Of himself; 2. Of anj^ 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 property or services, of which death or illness might delay or prevent the perform- ance ; and, 4. Of any person upon whose life any estate or interest vested in him depends. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 5 pars, annotation. 90 C. 245, 248, 25 A. S. 114, 27 P. 211, 212 (construed). As to insurable interest in general, see ante §§ 2546 et seq. As to insurable interest in life insurance, see 1 L. 238; 2 L. 844; 6 L. 136; 7 L. 217. As to insurable interest in life of another, and necessity of, see 46 A. R. 189; 52 A. R. 135; 57 A. D. 93; 58 A. R. 852. As to insurable interest in life of parent or child, or otlier relative by blood, see 54 L. 225. As to insurable interest in life insurance, whether policy may be made payable to person having none, see 58 A. R. 852. As to insurable interest of wife in husband's life, and wife's capacity to make contract of insurance, see 10 L. 259. As to insurable interest, when exists in life insurance, see 46 A. R. 189; 52 A. R. 135; 57 A. D. 93. As to insurance on life of minor, see 57 L. 496. As to life insurance to secure debt to insurer, see 53 L. 462. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. As to right to take life insurance for benefit of stranger, see 25 L. 627. As to validity of life Insurance for benefit of betrothed wife, see 19 L. 187. As to what is good health within the meaning of the law of life insurance, see 10 A. S. 242. As to whether assignee of life insurance policy must have in- surable interest, see 27 A. R. 327. 1393 §§ 2764-2766 CIVIL CODE. [Div.III.Pt.IV. § 2764. ASSIGNEE, ETC., OF LIFE POLICY NEED HAVE NO INTEREST. 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 whatever the insured might have re- covered. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 90 C. 245, 248, 251, 25 A. S. 114, 27 P. 211, 213 (applied). As to assignment of life policies, see 87 A. S. 484. As to assignment of life policy to one liaving no interest in life insured, see 16 A. S. 906. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. § 2765. NOTICE OF TEANSFER. 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. History: Enacted March 21, 1872. §2766. MEASURE OF INDEMNITY. Unless the interest of a person insured is susceptible of exact pecuniary measure- ment, the measure of indemnity under a policy of insurance upon life or health is the sum fixed in the policy. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. As to death of insured by voluntary exposure to unnecessary danger, hazard or perilous adventure, what is, see 12 A. S. 272. As to death of insured in known violation of law, see 60 A. S. 160. As to death of insured resulting from a criminal act, see 21 A. R. 542. As to many miscellaneous matters as to insurance, see notes §§ 414, 2527, ante. 1394 Tit.XII.] INDEMNITY. GENERALLY. § 2772 TITLE XII. INDEMNITY. § 2772. Indemnity, what. § 2773. Indemnity for a future wrongful act void. § 2774. Indemnity for a past wrongful act valid. § 2775. Indemnity extends to acts of agents. § 2776. Indemnity to several. § 2777. Person indemnifying liable jointly or severally with person indemnified. § 2778. Rules for interpreting agreement of indemnity. § 2779. When person indemnifying is a surety. § 2780. Bail. what. § 2781. How regulated. § 2772. INDEMNITY, >YHAT. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 65 pars, annotation. 58 C. 435, 439 (construed and applied with §2775'»: 70 C. 553, 557, 12 P. 451, 453 (construed and applied with § 2794). INDEMNITY. As to agreements for indemnity, when void because act in- demnified against is illegal, see 40 A. D. 425. As to duty and liability of officer on receiving bond of Indem- nity, see 15 A. S. 315. As to fidelity insurance, nature of, and rules governing, see 100 A. S. 774. As to liability of surety on contract of, see 1 A. D. 47. As to necessity of indemnity before bringing action on lost bond or note, see 13 A. D. 479-482. As to right of indemnity b.fore action on destroyed bills and notes, see 13 A. D. 479-482. As to right of indemnity of non-negotiable instruments In case of loss, see 13 A. D. 479-483. As to right of indemnity when note deliberately destroyed by holder, see 13 A. D. 479-482. As to sheriffs right to exact indemnity, see 86 A. S. 554. Same — While executing civil process, see 89 A. S. 413. As to when action will He upon lost bond, see 13 A. D. 479- 482. 1395 § 2772 CIVIL CODE. [Div.III,Pt.IV. As to when contract of indemnity is original undertaking, see note John. Cas. (N. Y.) 52, 1 L. ed. 435. As to when right of action accrued in contract of indemnity, see 49 A. D. 362, 363. As to when surety becomes liable on contract of indemnity, see 1 A. D. 47. As to whether contract of indemnity is within statute of frauds, see 42 A. S. 186-194. Agre*;f;ientR for, when void because the act indemnified against is illegal. — See 40 A. D. 425. Application of indemnity contract to negligence of indemni- tee.— See 10 A. C. 593. Beneficiary in — Form of judgment on. — See 62 L. 446. Same — In bond insuring fidelity of officer or employee, right to repudiate authority of person making representations in re- liance upon which bond was issued. — See 7 L. N. S. 549. Same — Liability of surety under, for defalcation subsequent to .a reappointment to the office or employment, made after ex- piration of original term, or during an indefinite term. — See 11 L. N. S. 493. Same — Penalty as limit of liability on. — See 55 L. 394. Same — Verification of accounts required by, what constitutes. — See 10 L. N. S. 323. Bond for — As to, generally, see 7 L. N. S. 549; 10 L. N. S. 323; 11 L. N. S. 493; 12 L. N. S. 247. Same — Duty of obligee to disclose prior defalcation in absence of any inquiry in regard thereto. — See 12 L. N. S. 247. Breach of contract of, time when limitation begins to run on liability for. — See 15 L. N. S. 164. Construction of contract of — As to, generally, see 3 A. C. 962; 10 A. C. 589. Contingency of claim for, as affecting time for presentation to decedent's estate. — See 58 L. 88. Duty and liability of officer on receiving a bond of. — See 15 A. S. 315. Effect on status as independent contractor of provisions in contract of that employer shall be indemnified for all losses caused by negligence of the person employed. — See 17 L. N. S. 381. Form of judgment on indemnity bond. — See 62 L. 446. Indemnity insurance, as to, see note § 2527, ante. Judgment against principals, conclusiveness against indem- nitors. — See 22 A. S. 204. Penalty as limit to. liability on indemnity bond. — See 55 L. 394. Promise to indemnify is within the statute of frauds. — See 6 A. C. 671. Right — Of action on, when accrues. — See 49 A. D. 362. 1396 Tit.XII.] FOR FUTURE "WRONGFUL ACT. §§ 2773, 2774 Same — Of municipality which has been held liable for injuries from unsafe conditions of street to recover against the owner or occupant of abutting property. — See 12 L. N. S. 949. Same — To recover from obligor under collateral contract, the damages which the obligee was compelled to pay because of his breach of contract with a third person, in consequence of the failure or delay in performance of the collateral contract. — See 18 L. N. S. 575. Sheriff's right to while executing civil process. — See 89 A. S. 413. Specific performance of contract to give, to surety. — See 6 L. N. S. 590. Statute of frauds, contracts of, whether within. — See 42 A. S. 186. Surety, when becomes liable on contract of. — See 1 A. D. 47. Time when limitation begins to run on liability for breach of contract of. — See 15 L. N. S. 164. To sheriffs — For damages suffered by them in executing civil process. — See 89 A. S. 448. Same — Right of to exact. — See 86 A. S. 554. Warranties as inducement to co-partner to enter into a con- tract, as a promise to indemnify. — See 15 L. N. S. 1151. §2773. INDEMNITY F()R A FUTCRE WRONGFUL ACT VOID. An 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. HlNtory: Enacted March 21. 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 259. See Kerr's Cyc. C. C. for 34 pars, annotation. As to agent's right to indemnity when acting in good faith, see 8 A. D. 378. As to agreement for indemnity when void by reason of acts being illegal, see 40 A. D. 425-427. As to bond of indemnity given to sheriff to induce him to perform act In plain violation of duty, see 62 A. D. 768. As to indemnity generally, see note § 2772, ante. §2774. INDE.HMTY FOR A PAST WRONGFUL A( T VALID. An agreement to indemnify a person again.'st an act already done, is valid, even though the act was known to be wrongful, unless it was a felony. History: Enacted March 21, 1872. 1397 §§ 2775-2778 CIVIL CODE. [Div.III,Pt.IV. See Kerr's Cyc. C. C. for 9 pars, annotation. 89 F. 73, 76 (applied in construing § 2777). As to indemnity generally, see note § 2772, ante. §2775. INDEMMTT EXTENDS TO ACTS OF AGENTS. An agreement to indemnify against the acts of a certain per- son, applies not only to his acts and their consequences, but also to those of his agents. History: Enacted March 21, 1872. 58 C. 435, 439 (construed and applied with § 2772). As to indemnity generallj', see note § 2772, ante. § 2776. INDEMNITY TO SEVERAL. An agreement to in- demnify several persons applies to each, unless a contrary intention appears. History; Enacted March 21, 1872. § 2777. PERSONS INDEMNIFYING LIABLE JOINTLY OR SEVERALLY WITH PERSONS INDEMNIFIED. One who in- demnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately, to every person injured by such act. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 89 F. 73, 76, 77 (section includes all cases of indemnity against future contingencies — is not limited how). As to indemnity generally, see note § 2772, ante. §2778. RULES FOR INTERPRETING AGREEMENT OF INDEMNITY. In the interpretation of a contract of indem- nity, the following, rules are to be applied, unless a contrary intention appears: 1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable; 2. Upon an indemnity against claims, or demands, or dam- ages, or costs, expressl5% or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof; 1398 Tit.XII.] INTERPRETING AGREEMENT. § 2779 3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion; 4. The person indemnifying is bound, on request of the per- son indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so; 5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter [,] suffered by him in good faith, is conclusive in his favor against the former; 6. 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 defense, judgment against the latter is only presumptive evidence against the former; 7. A stipulation that a judgment against the person indem- nified shall be conclusive upon the person indemnifying, is inapplicable if he had a good defense upon the merits, which by want of ordinary care he failed to establish in the action. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 79 pars, annotation. 57 C. 49, 50 (construed and applied); 68 C. 430, 432, 9 P. 712 (construed and applied); 81 C. 270. 273. 274, 22 P. 663, 664, 665 (construed and applied); 121 C. 515, 519, 53 P. 1119 (construed and applied); 89 F. 73, 76, 77 (subd. 2 applied In construing § 2777). As to conclusiveness of judgment against sureties on bonds in judicial proceedings, sheriffs and constables, executors and administrators, etc., see 83 A. D. 380-385. As to conclusiveness of judgment recovered against sheriff as upon party Indemnifying him, see 83 A. D. 386. As to conclusiveness of judgments, see 18 A. S. 142-144., 22 A. S. 204. As to indemnity generally, see note § 2772, ante. §2779. WHEN PERSON IM)E>IMFYI>G IS \ SURETY. Where one, at the request of another, engages to answer in 1399 §§ 2780, 2781 CIVIL CODE3. [Div.III,Pt.IV. damages, whether liquidated or unliquidated, for any viola- tion 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. History: Enacted March 21, 1872. § 2780. BAIL, WHAT. Upon those contracts of indemnity which are taken in legal proceedings as security for the per- formance of an obligation imposed or declared by the tri- bunals, and known as undertakings or recognizances, the sureties are called bail. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 416, held unconstitutional, see history, § 4 ante. §2781. HOW REGULATED. The obligations of bail are governed by the statutes specially applicable thereto. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 416, held unconstitutional, see history, § 4 ante. 1400 Tit.XIII,ch.I,art.I.] GUARANTY, generally. §2787 TITLE XIII. GUARANTY. Chapter I. Guaranty in General, §§ 2787-2825. II. Suretyship, §§ 2831-2866. CHAPTER I. GUARANTY IN GENERAL. Article I. Definition of Guaranty, §§ 2787, 2788. II. Creation of Guaranty, §§ 2792-2795. III. Interpretation of Guarantj', §§ 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. GUARAATY, WHAT. A guaranty is a promise to answer for the debt, default, or miscarriage of another person. History: Enacted March 21, 1872, founded upon § 12, Act April 19, 1850, Stats. 1850, p. 267. See Kerr's Cyc. C. C. for 19 pars, annotation. 62 C. 484, 487 (construed in connection with other sections); 77 C. 476, 477, 19 P. 882, 883 (cited); 94 C. 96, 103, 28 A. S. 94, 29 P. 415 (cited); 113 C. 432, 434, 54 A. S. 361, 45 P. 812 (applied): 119 C. 67, 70, 51 P. 14 (cited). GUARANTY. As to effect of assignment of note on contract of guaranty, see 12 L. 270. As to letter of credit a guaranty, see 98 A. D. 547. 1401 § 2787 CIVIL CODE. [DiV.III,Pt.IV. As to negotiability of guaranty, see 37 A. D. 270; 44 A. D. 308. As to transfer of guaranty by assignment of debt, see 100 A. D. 475; 64 A. S. 401. As to transfer of note by guaranty on separate paper, see 36 L. 232. As to transfer of note by indorsement in form of guaranty, see 36 L. 232. As to what constitutes contract of guaranty, see 8 L. 380. As to what constitutes guaranty, see 45 A. D. 335; brief 51 L. 758, 759. As to whether guaranty an indorsement, see 36 L. 232. Acceptance of necessary. — See 4 W. & P. 3180. Action for breach of contract of in bond. — See 3 A. C. 456; 6 A. C. 465, 467. As a collateral agreement. — See 3 A. R. 56; 54 A. S. 361; 8 L. 380; 4 W. & P. 3181. As a concurrent agreement. — See 5 A. D. 317; 4 W. & P. 3182. As an absolute agreement. — See 95 A. D. 246; 4 "W. & P. 3180. As an agreement or a promise. — See 4 W. & P. 3181. As surety. — See 4 W. & P. 3183. As warranty.— See 78 A. D. 296; 6 L. 342; 27 L. 136; 4 W. & P. 3183. Company. — See 4 W. & P. 3184. Conditional guaranty, liability of guarantor on. — See 54 A. S. 440. Consideration for. — See 4 W. & P. 3182. Construction of, rule for. — See 4 L. 268; 4 L>. 343. Continuing — ^As to, generally, see 4 L. 343; 8 L. 381. Same- — Parol evidence to show that guaranty is. — See 2 L. 183. Same — "What constitutes. — See 4 A. C. 818. Continuing liability, when created by. — See 55 A. R. 701. Contract of.— See 105 A. S. 502. Death — Of guarantor or cosurety, effect of. — See 2 L. 183; 6 L. 383. Same — Of party, effect on. — ^See 23 L. 709. Definition of.— See 83 A. D. 358; 70 A. S. 907; 8 L. 380; 4 W. & P. 3179. Discharge of guarantor for causes existing prior to his enter- ing upon contract of. — See 63 A. S. 327. Distinction between continuing and limited guaranties. — See 4 A. C. 822. Effect of purchase at tax sale, by or in the interest of mort- gagor, of mortgage indebtedness. — See 16 L. N. S. 121. Estoppel to enforce contract of released through mistake. — See 13 L. N. S. 596. Fund.— See 4 W. & P. 3184. General or special. — See 45 A. R. 204; 4 W. & P. 3182. 1402 Tit.XIII,ch.I,art.I.] GUARANTY, generally. §2787 Guaranteeing stock or bonds of another corporation, power of corporation in reference to. — See 11 A. C. 891. Guarantor of lessee. — See 9 L. 353. Implied power of railroad to guaranty enterprise other than transportation of goods or passengers. — See 2 L. N. S. 887. In reply to inquiry as to third party's financial condition. — See 1 L. N. S. 305. Indorsement distinguished. — See 4 W. & P. 3182. Indorser of note as guarantor. — See 18 L. N. S. 565. Insurance. — See 44 L. 124; 4 W. & P. 3184. Letters of credit — As to, generally, see 7 L. 209. Same — Liability on general. — See 28 A. R. 347. Liability — Of guarantor limited to strict terms of contract. — See 3 L. 160; 9 L. 353. Same — Of guarantor of note, as to being collateral. — See 45 A. D. 235. Same — Of guarantor on conditional guaranty. — See 54 A. S. 440. Same — Of guai'antor or general letter of credit. — See 28 A. R. 347. Same — On guaranty obtained by fraud. — See 21 L. 409. Same — Under continuing, running to partnership or corpora- tion, for goods sold or credits extended after change in the firm or corporation. — See 14 L. N. S. 1231. Limitation — As to time and amount. — See 4 L. 344. Same — Of liability of guarantor to terms of contract. — See 64 A. D. 549; 4 L. 680. Notice of acceptance — Necessity of. — See 4 L. 346; 4 W. & P. 3180. Same — Necessity of to bind guarantor. — See 16 L. N. S. 353- 379. Same — When necessary. — See 39 A. D. 221. Notice of default — Necessity of to bind guarantor. — See 20 L. 257-264; 4 W. &; P. 3182. Of collection. — See 64 A. R. 393; 4 W. & P. 3185. Of commercial paper, when does it cover renewals. — See 16 L. N. S. 775. Of credit extended for price of goods sold, does it cover sales to successor. — See 19 L. N. S. 901. Of dividends on corporate stock. — See 2 L. 183. Of note, as to being conditional. — See 45 A. D. 235. Of payment, distinguished from of collection. — See '^ A. S. II: 4 W. & P. 3185. Oral, by transfer of negotiable instrument, validity of. — See 2 A. C. 504, 506. Oral contract of, as to, see 9 L. N. R. 54; 15 L. N. S. 214; 15 L. N. S. 1087. 1403 § 2788 CIVIL CODE. [Div.III,Pt.IV. Parol evidence to show that guaranty is a continuing one, ad- missibility of. — See 2 L. 183. Payment voidable under bankruptcy act as discharge of guar- antor.— See 9 L. N. S. 581. Personal liability imported. — See 4 W. & P. 3182. Request to make advances to another as implying, of repay- ment.— See 15 L. N. S. 1115. Right of guarantor to have judgment against principal set aside. — See 54 L. 765. Severable contract. — See 8 L. 382. Specific performance of contract of. — See 3 A. C. 773. Statute of frauds as affecting, of the contract of a person under disability. — See 33 L. 359. Statute of limitations, does time begin to run on breach of contract of, or at the time actual damages are sustained, in con- sequence thereof. — See 15 L. N. S. 159. Suretyship distinguished. — See 48 A. S. 496; 6 L. 686; 4 W. & P. 3183. To save harmless. — See 4 W. «& P. 3184. Transfer by assignment of commercial paper. — See 12 L. 270. Transfer of title to note by indorsement in form of. — See 3 L. 232. Understanding as a. — See 8 W. & P. 7163. Unlimited as to time or amount. — See 4 L. 344. What constitutes contract of. — See 6 A. C. 465. Written contract of not required. — See 4 W. & P. 3184. §2788. KNOWLEDGE OF PRIIVCIPAL NOT NECESSARY TO CREATION OF GUARANTY. A person may become guar- antor even without the knowledge or consent of the principal. HLstory: Enacted March 21, 1872, founded upon Code Napo- leon, art. 2014. As to guaranty generally, see note § 2787, ante. Acceptance of guaranty. — See Kerr's Cyc. C. C. § 2795 and note. 1404 Tit.XIII,ch.I,art.II.] CONSIDERATION. §§2792,2793 ARTICLE II. CREATION OF GUARANTY. § 2792. Necessity of a consideration. § 2793. Guaranty to be in writing-, etc. § 2794. Engagement to answer for obligation of another, wlien deemed original. § 2795. Acceptance of guaranty. §2792. NECESSITY OF A CONSIDERATION. Where a guarantj' is entered into at the same time with the original obligation, or with the acceptance of the latter by the guar- antee, and forms with that obligation a part of the consider- ation to him, no other consideration need exist. In all other cases there must be a consideration distinct from that of the original obligation. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. 40 P. 491 (applied); J.09 C. 211. 221, 41 P. 1028 (applied); 146 C. 545, 547, 80 P. 698 (applied — subsequent indorsement of prom- issory note by third person without new consideration imposes no obligation upon indorser) ; 79 P. 404 (applied). As to guaranty generally, see note § 2787, ante. As to necessity of consideration for guaranty of collection, see 64 A. S. 401. As to sufficiency of consideration for contract of guaranty, see 32 A. D. 526; also brief 62 L. 954, 955. §2793. GUARANTY TO HE IN WRITING, ETC. Except as prescribed by the next section, a guaranty must be in writ- ing, and signed by the guarantor; but the writing need not express a consideration. Hlstoryi Enacted March 21, 1872, founded upon § 12, Act April 19, 1850, Stats. 1850, p. 267. See Kerr's Cyc. C. C. for 2 pars, annotation. Ill C. 281. 284, 43 P. 899 (applied); 113 C. 432, 434, 54 A. S. 361, 45 P. 812 (applied). As to contracts of guaranty required to be in writing under statute of frauds, see Kerr's Cyc. C. C. §1624 note pars. 129-160. 1405 § 2794 CIVIL CODE. [Div.III.Pt.IV. As to effect of statute of fi'auds on guaranty of contract of person under disability, see 45 L. 846. As to expression of consideration of contract of guaranty in writing' under statute of frauds, see Kerr's Cyc. C. C. § 1624 note pars. 138, 214-219. As to guaranty generally, see note § 2787, ante. As to necessity of consideration for guaranty being expressed in writing, see 5 A. D. 317; 75 A. D. 413. As to sufficiency of expressing consideration in guaranty, see 53 A. D. :i88; 64 A. D. 549. As to validity of parol promise to pay debt of anotlier, see 15 A. D. 393; 31 A. D. 614; 43 A. D. 739; 57 A. D. 198. §2794. ENGAGEMENT TO ANSWEK FOE OBLIGATION or ANOTHER, WHEN DEEMED ORIGINAL. A promise to answer for the obligation of anotlier, in any of the following cases, is deemed 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 undertaking to apply it pursuant to such promise; or by one who has received a discharge from an obligation in whole or in part, in consideration of such promise; 2. Where the creditor parts with value, or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the prin- cipal debtor, and the person in whose behalf it is made, his surety; 3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiv- ing it cancels the antecedent 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 imprisonment under an execu- tion on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person; 140G Tit.XIII,ch.I,ai-t.II.] acceptance. § 2795 4. Where a factor undertakes, for a commission, to sell mer- chandise and guaranty the sale; 5. Where 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 payment 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 instrument. History: Enacted March 21, 1872. . See Kerr's Cyc. C. C. for 10 pars, annotation. 59 C. 442, 444 (applied); 67 C. 293, 294, 7 P. 705, 70G (applied); 67 C. 595, 598, 8 P. 322, 323 (applied); 70 C. 553, 557, 12 P. 451, 453 (applied); 77 C. 79', 81, 19 P. 182 (referred to); 81 C. 280, 288, 22 P. 856, 857, 858 (applied with § 1624 — contract by third per- son to pay for supplies furnished to a corporation is void unless in writing); 113 C. 432, 434, 54 A. S. 361, 45 P. 812 (applied);' 117 C. 587, 591, 593, 49 P. 710 (referred to); 53 P. 693, 697 (subd. 4 cited); 123 C. 379, 383, 55 P. 1064 (applied); 128 C. 250, 253, 60 P. 860 (applied); 61 P. 578, 579 (applied); 130 C. 411, 415, 62 P. 611 (applied); 1 C. A. 560, 564, 566, 82 P. 568 (subd. 3 applied); 3 C. A. 414, 416, 86 P. 824 (subd. 2 applied with § 1605 — who is a "principal debtor"). As to guaranty generally, see note § 2787, ante. As to requirements of statute of frauds, see Kerr's Cyc. C. C. § 1624 note pars. 129-160. As to validity of parol promise to pay debt of another when based on original consideration, see 3.7 A. D. 153; 46 A. R. 296. As to whether undertaking of guarantor is original or col- lateral, see 23 A. D. 345; 59 A. D. 345. §2795. ACCEPTANCE OF GUABA>TY. A mere offer to guaranty is not binding, until notice of its acceptance is com- municated by the guarantee to the guarantor; but an absolute guaranty is binding ujion the guarantor without notice of acceptance. History: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 125 C. 472, 481, 73 A. S. 64, 58 P. 164 (construed as not affected by §1565 and applied); 128 C. 250, 253, 60 P. 860 (applied). As to guaranty generally, see note § 2787, ante. As to necessity of notice of acceptance of guaranty, see 4 L. 343, 347; note 45 A. D. 47; 53 A. D. 289; 56 A. D. 619; 39 A. R. 221; 65 L. 729. 1407 §§ 2799, 2800 CIVIL CODE. [Div.III,Pt.IV. ARTICLE III. INTERPRETATION OF GUARANTY. § 2799. Guaranty of incomplete contract. § 2800. Guaranty that an obligation is good or collectable. § 2801. Recovery upon such guaranty. § 2802. Guarantor's liability upon such guaranty. § 2799. GUARANTY OF INCOMPLETE CONTRACT. In a guaranty of a contract, the terms of which are not then set- tled, 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 con- tracts at the place where the principal contract is to be per- formed. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 80 C. 338, 341 (erroneously cited for § 514), 22 P. 254, 255 (cor- rect citation). As to construction of guaranties as to whether continuing guaranties, see Kerr's Cyc. C. C. § 2814 and note. As to guaranty generally, see note § 2787, ante. § 2800. GUARANTY THAT AN OBLIGATION IS GOOD OR COLLECTABLE. A guaranty to the effect that an obligation is good, or is collectable, imports that the debtor is solvent, and that the demand is collectable by the usual legal pro- ceedings, if taken with reasonable diligence. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. As to guaranty generally, see note § 2787, ante. As to nature of guaranty of collection, see 100 A. D. 476; 64 A. S. 393. As to necessity of consideration for guaranty, see Kerr's Cyc. C. C. § 2792 note. As to necessity of demand or notice, see Kerr's Cyc. C. C. § 2807 note. As to obligation assumed by guarantor of collection of note, see 74 A. D. 387. As to what constitutes guaranty of collection, see 64 A. S. 393. 1408 Tit.XIII.ch.I.art.III.] RECOVERY UPON. §§ 2801, 2802 § 2S01. RECOVERY UPON SUCH GUARAMY. A guaranty, such as is nieutioned in the last section, is not discharged by an ©mission 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 thereby. Hlwtory: Enacted March 21, 1872. See Kerr's Cyc. for 4 pars, annotation. As to discharge of guarantor, see Kerr's Cyc. C. C. S 2819 note. As to guaranty generally, see note § 2787, ante. As to recovery upon guaranty of collection of note, see 74 A. D. 386. As to what will discharge guarantor of collection, see 64 A. S. 399. §2802. GUARANTOR'S LIABILITY UPO> SUCH GUAR- A>'TY. In the cases mentioned in section two thousand eight hundred, the removal of the principal from the state, leaving no property therein from which the obligation might be satis- fied, is equivalent to the insolvency of the principal in its effect upon the rights and obligations of the guarantor. HiMtory: FJnacted March 21, 1872. As to guaranty generally, see note § 2787, ante. As to removal of maker of note from state, see Kerr's Cyc. C. C. i 2802, note. Kerrs C. C— 45 1409 §§ 2806, 2807 CIVIL CODE. [Div.III,Pt.IV. ARTICLE IV. LIABILITY OF GUARANTORS. § 2806. Guaranty, how construed. § 2807. Liability upon guaranty of payment or performance. § 2808. Liability upon guaranty of a conditional obligation. § 2809. Obligation of guarantor cannot exceed that of the prin- cipal. § 2810. Guarantor not liable on an illegal contract. § 2806. GUARANTY, HOW COIVSTEUED. A guaranty is to be deemed unconditional unless its terms import some condi- tion precedent to the liability of the guarantor. History: Enacted March 21, 1872. 78 C. 443, 448, 21 P. 2, 4 (construed); 128 C. 464, 470, 79 A. S. 56, 61 P. 64 (applied). As to guaranty generally, see note § 2787, ante. As to liability — Of guarantor of note being conditional, see 45 A. D. 235. Same — Of guarantor on conditional guaranty, see 54 A. S. 440. Same — Of guarantor on general letter of credit, see 28 A. R. 347. As to limitation of liability of guaranty to terms of contract, see 64 A. D. 549; 4 L. 680. § 2807. LIABILITY UPON GUARANTY OF PAYMENT OR PERFORMANCE. A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal, and without demand or notice. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 62 C. 484, 487 (construed in connection with other sections) ; 77 C. 476, 477, 478, 19 P. 882, 883 (cited); 78 C. 443, 448, 21 P. 2, 4 (construed); 86 C. 367, 373, 24 P. 1072, 1073 (applied); 94 C. 96, 103, 28 A. S. 94, 29 P. 415 (applied); 105 C. 434, 441, 39 P. 20 (applied); (Aug. 26, 1895), 41 P. 490, 491 (applied); 128 C. 464, 470, 79 A. S. 56, 61 P. 64 (applied); 128 C. 665, 668, 61 P. 369 (applied). As to guaranty generally, see note § 2787, ante. As to necessity of demand and notice to charge guarantor, see 1410 Tit.XIII,ch.r,art.IV.] LIABILITY. §§2808-2810 11 A. D. 703; 45 A. D. 245; 59 A. D. 345; 74 A. D. 386; note 20 L. 257; brief 62 L. 954, 955. As to necessity to demand or request in guaranty of collection, see 64 A. S. 401. §2808. LIABILITY 11M)> (JUARAMY OF A CO>DI. TIONAL OBLIGATION. Where one guarantees a conditional obligation, his liability is commensurate with that of the prin- cipal, 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 information of such default, and the creditor has actual notice thereof. HiHtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 121 C. 604, 606, 53 P. 1117 (applied). As to guaranty generally, see note § 2787, ante. §2809. OBLIGATIO\ OF GFARAXTOR CANNOT EXCEED THAT OF THE PRINCIPAL. 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 proportion to the principal obli- gation. HiHtory: Enacted March 21, 1S72, founded upon Code Napo- leon, art. 2013. See Kerr's Cyci C. C. for 5 pars, annotation. 61 C. 396, 399 (mlscited for § 2899). As to admissibility against guarantor of judgment against principal, see 32 A. D. 203. As to guaranty generally, see note § 2787, ante. As to liability of surety and guarantor, see 3 L. 168; 9 L. 353; brief 62 L. 954, 955. As to limitation of liability of guarantor, see 4 L. 343, 344. As to limitation of liability of guarantor by restrictions In letter of credit, see 53 A. D. 289. As to rlgiit of guarantor to maintain proceedings to set aside judgment against principal, see 54 L. 758, 765. § 2810. GUARANTOR NOT LIABLE ON AN ILLEGAL CON- TR.VCT. A guarantor is not liable if the contract of the prin- cipal is unlawful; but he is liable notwithstanding any mere 1411 §§ 2814, 2815 CIVIL CODE. [Div.III.Pt.IV. personal disability of the principal, though the disability be such as to make the contract void against the principal. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to discharge of guarantor by fraud of principal, see 65 L. 729, 731. As to effect of illegal contract on contract of guaranty, see brief 57 L. 811, 812. As to effect of usury in principal debt on contract of guar- anty, see 22 A. R. 293. As to guaranty generally, see note § 2787, ante. As to liability of guarantor or surety on fraudulent obliga- tion, see 21 L. 409. ARTICLE V. CONTINUING GUARANTY. § 2814. Continuing guaranty, what. § 2815. Revocation. § 2814. CONTINUING GUARANTY, WHAT. A guaranty re- lating to a future liability of the principal, under successive transactions, which either continue his liability or from time to time renew it after it has been satisfied, is called a con- tinuing guaranty. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 138 C. 724, 729, 72 P. 352 (cited); 141 C. 674, 677, 75 P. 296 (ap- plied). As to definition of continuing guaranty, see 56 A. D. 619. As to what constitutes continuing guaranty, see 4 L. 343; 8 L. 380; also 45 A. D. 492; 55 A. R. 701; 64 A. D. 549; 86 A. D. 53. As to guaranty generally, see note § 2787, ante. § 2815. REVOCATION. A continuing guaranty may be re- voked at any time by the guarantor, in respect to future trans- actions, unless there is a continuing consideration as to such transactions which he does not renounce. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 141 C. 674, 676, 75 P. 296 (applied). As to effect of death of guarantor, see 2 L. 183; 6 L. 383; note 23 L. 707, 709. As to guaranty generally, see note § 2787, ante. 1412 I Tit.XIII.oh.I.art.VI.] EXONERATION. §§2819.2820 ARTICLE VI. EXONERATION OF GUARANTORS. S:i819. What dealings with dobtor exonerate guarantor. § L'S20. Void promises. S 2821. Resiission of alteration. § 2822. Part performance. § 2823. Delay of creditor does not discharge guarantor. § 2824. Guarantor indemnified by the debtor, not exonerated. § 2825. Discharge of principal by act of law does not discharge guarantor. S2S1J>. ^\U\T DE.VMNiJS WITH DEBTOR EXONKHATE (ir.VH.VNTOH. A j^uarantor is exonerated, except so far as. he may be indemnified by the principal, if by any 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 suspended. IllM(i»r.v: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 51 pars, annotation. 6 P. 853. 857 (referred to); 70 C. 79. 84. 11 P. 505, 508 (applied): 77 C. 476. 477, 19 P. 882. 883 (cited); 87 C. 423. 25 P. 552. 553 (cited); 91 C. 206. 210, 27 P. 648, 649 (referred to); 110 C. 658. 665, 43 P. 202 (applied): 117 C. 491, 497. 49 P. 460 (referred to); 120 C. 495. 501.. 52 P. 848 (applied); 122 C. 65. 66. 67. 54 P. 387 (applied): 122 C. 66.'.. 668, .'.5 P. 683 (construed): 130 C. 245, 254. 62 P. 466, 600 (applied): 139 C. 416, 41S. 73 P. 179 (applied): 145 C. 241, 244, 78 P. 734 (applied); 146 C. 518. 521. SO P. 695 (ap- plied); 3 C. A. 338, 342. S.'J P. 156 (applied to building contract); t! C. A. 696. 700. S6 P. 9S1 (contract of suretyship — right to ben- efit of collateral security). As to discharge of guarantor or surety by matters existing at 'ir j>rlor to the making of contract, see 63 A. S. 327. As to discharge of guarantors or surety, see 9 1j. 353: 64 A. S. 399. As to guaranty g<-nerally. see note S 2787, ante. As to release by refusal of offer of perform.ance. see Kerr's Cyc. C. C. 8 2839 and note. § '2s-_M». V(H1» PHOMISES. A i)romise by a creditor, which for any cause is void, or voidable by him at his optiDU. does 1413 §§ 2821-2824 CIVIL CODE. [Div.III.Pt.IV. not alter the obligation or suspend or impair the remedy, within the meaning of the last section. History: Enacted March 21, 1872. §2821. RESCISSION OF ALTERATION. The rescission of an agreement altering the original obligation of a debtor, or impairing the remedy of a creditor, does not restore the lia- bility of a guarantor who has been exonerated by such agree- ment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to guaranty generally, see note § 2787, ante. §2822. PART PERFORMANCE. The acceptance, by a creditor, of anything in partial satisfaction of an obligation, reduces the obligation of a guarantor thereof, is [in] the same measure as that of the principal, but does not otherwise affect it. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 145 C. 497, 499, 78 P. 1056 (applied). As. to guaranty generally, see note § 2787, ante. §2823. DELAY OF CREDITOR DOES NOT DISCHARGE GUARANTOR. Mere delay on the part of a creditor to pro- ceed against the principal, or to enforce any other remedy, does not exonerate a guarantor. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 77 C. 54, 60, 11 A. S. 235, 18 P. 808, 811 (applied); 77 C. 476, 478, 19 P. 882, 883 (cited); 94 C. 96, 103, 28 A. S. 94, 29 P. 415 (ap- plied); 130 C. 245, 254, 62 P. 466, 600 (applied). As to discharge of guarantor by indulgence to maker, see 45 A. D. 492; 51 A. D. 302. As to exoneration of guarantor by failure to sue maker, see brief 62 L. 954, 955. As to guaranty generally, see note § 2787, ante. §2824. GUARANTOR INDEMNIFIED BY THE DEBTOR, NOT EXONERATED. A guarantor, who has been indemnified 1414 Tit.XIir.ch.I.ait.VI.] DISCHARGE. §2825 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 roleased the principal. IliHtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 117 C. 491. 497, 49 P. 460 (applied); 147 F. 95, 97 (section is from statutes of New York — it is sufficiently comprehensive to include case of rescission of contract). As to guaranty generally, see note § 27S7, ante. §2825. DISCHARfiE OF THIXirVL IJY ACT OF TAW DOKS \0T DISCHARGE (U'ARANTOR. A guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor. Hintory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to act of God, see Kerr's Cyc. C. C. § 1511 note par. 213. As to guaranty generally, sec note § 2787, ante. 1415 § 2831 CIVIL CODE. [Div.III,Pt.IV. CHAPTER II. SURETYSHIP. Article I. Who Are Sureties, §§ 2831, 2832. II. Liability of Sureties, §§ 2836-2840. IIT. Rights of Sureties, §§ 2844-2850. IV. Rights of Creditors, § 2854. V. Letter of Credit, §§ 2858-2866. ARTICLE I. WHO ARE SURETIES. § 2831. Surety, what. § 2832. Apparent principal may show that he is surety. § 2831. SURETY, WHAT. A surety is one who at the re- quest of another, and 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 person, or hypothecates prop- erty as security therefor. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 24 pars, annotation. 78 C. 443, 448, 21 P. 2, 4 (cited); 101 C. 415, 420, 35 P. 1027; 105 C. 434, 441, 39 P. 20 (applied); 109 C. 211, 221, 41 P. 1028 (ap- plied); 112 C. 31, 34, 53 A. S. 155, 44 P. 305 (applied); 119 C. 67, 70, 51 P. 14 (construed); 120 C. 495, 501, 52 P. 848 (applied); 127 C. 525, 526, 59 P. 989 (applied); 138 C. 724, 729, 72 P. 352 (ap- plied); 139 C. 246, 253, 255, 72 P. 997 (construed); 145 C. 497, 499, 78 P. 1056 (cited); 3 C. A. 115, 118, 84 P. 435 (maker of note as principal debtor as his comakers as sureties for payment of his debt); 3 C. A. 696, 700, 86 P. 981 (contract of suretyship — right to benefit of collateral security). SURETYSHIP. As to conclusiveness against surety of judgment against prin- cipal, see 32 A. D. 202; 43 A. D. 440; 56 A. D. 6. 72 A. D. 276; 83 A. D. 380; 33 A. R. 802; 69 A. S. 644; 2 L. 644; 52 L. 313; 52 L. 506. As to considerations, see Kerr's Cyc. C. C. § 2792 and note. 1416 I Tit.XIII.ch.IT.art.I.l SURETYSHIP. § 2831 As to distinction between sureties and guarantors, see Kerr's Cyc. C. C. §§ 2807, 2808 and notes. As to effect of secret agreement between principal and surety, see 76 A. D. 131. As to existence of relation of principal and surety between maker of notes and grantee who assumes and agrees to pay, see brief 40 L. 154. As to guaranty by one signing obligation as surety of genu- ineness of other signature, see 49 L. 315. As to liability of infant on contract of suretyship, see 18 A. S. 614. As to liability of surety on failure of promised cosurety to sign, see 28 A. D. 679; 52 A. D. 548; 85 A. D. 444; 25 A. R. 76; 29 A. R. 377; 54 A. R. 440; 67 A. S. 275; 67 A. S. 318; 45 L. 321; brief 37 L. 854. As to nature of contract of suretyship, see 67 A. S. 275; brief 55 L. 552. As to rights and liabilities of one who becomes surety for surety, see 21 L.. 247. As to validity of promise by third person to indemnify surety, see brief 55 L. 206. Account-books of the former, when admissible against tlie lat- ter.— See 37 A. R. 234. Actions and defenses, as to generally, see 4 A. C. 344; 7 A. C. 1061; 9 A. C. 150. Admissibility of extrinsic evidence to show relation of prin- cipal and surety between party to note. — See 20 L. 711. Alterations of instrument — Effect of on surety's liability. — See 7 L. 743. Alteration of terms of lease as discharge of sureties of lessee. —-See 6 A. C. 359. Alteration or deviation from contract as a discharge of surety. —See 2 A. C. 764; 5 A. C. 435; 8 A. C. 241; 10 A. C. 357. Amounts of liability of surety on official bond. — See 12 A. C. 436. Apparent principal, wiien may show himself to be a surety. — • See 17 A. D. 416. Application of principal and surety's rule as to creditors on assumption of debt at dissolution of partnership. — See 9 L. N. S. 88. Bond executed in blank, surety, when bound by unautliorized insertions in. — See 54 A. R. 440. Breach of promise to surety as to getting other sureties. — See 45 L. 321. Breach of warranty in the principal contract as defense. — See 21 L. 406. Conflict of laws as to capacity of married woman to become surety for her husband. — See .")7 L. 513. 1417 § 2831 CIVIL CODE. [Div.III.Pt.IV. Constitutionality of statute authorizing surety company to be- come surety on bonds required by law. — See 2 A. C. 487. Construction of contract of surety. — See 8 A. C. 241; 10 A. C. 357. Contingency of claim — Against surety on bond for title. — See 58 L. 86. Same — Effect of against estate of deceased sureties. — See 58 L. 82. Contract of. — See 10 A. C. 357. Contractor's bond — Release of surety on by premature pay- ment to principal, extension of time, discharge of surety by. — See 4 A. C. 883, 884; 5 A. C. 435, 442; 9 A. C. 259. Contribution — Between sureties and the remedies for its en- forcement.— See 10 A. S. 639; 70 A. S. 444. Same — Between cosureties. — See 9 L. 411. Creditor's duty to surety. — See 115 A. S. 85. Decree against principal, effect of and vacating or setting aside. — See 2 L. 644. Demand and notice not necessary to sustain action by latter against former. — See 13 A. D. 122. Different sets of sureties, liability as between. — See 70 A. S. 443 Discharge of surety — As discharge of security given by him. — See 12 A. C. 550; see "Release," this note. Same — Breach of promise of surety as to getting other sure- ties. — See 45 L. 321. Same — By alteration in or deviation from contract. — See 2 A. C. 764; 5 A. C. 435; 8 A. C. 24; 10 A. C. 357; 7 L. 743. Same — Same — Of terms of lease as discharge of sureties. — See 6 A. C. 359. Same — Same — On contractor's bond by premature payment of principal. — See 7 A. C. 766. Same — By alteration of instrument. — See 7 L. 743. Same — By bank's failure to apt>ly principal's deposit accounts upon note. — See 8 L. N. S. 944. Same — By creditor's acceptance of bill or note from debtor. — See 4 A. C. 884. Same — By discharge in bankruptcy when on a bond given by principal in action at law. — See 14 L. N. S. 507. Same — ^By estoppel to enforce contract of suretyship; re- lease through mistake. — See 13 L. N. S. 576. Same — By extension of time — As to generally, see 4 A. C. 883; 5 A. C. 435; 9 A. C. 259. Same — Same — For levying execution. — See 5 L. N. S. 764. Same — Same — In consideration of payment of interest. — See 5 A. C. 442. Same — Same — To grantee who. has assumed mortgage debt. — See 9 A. C. 259. 1418 Tit.XIII,ch.II,art.T.] SURETYSHIP. § 2831 Same — Same — To principal as a release to one who, on the face of the instrument is primarily liable, but is in fact a surety. — See 10 L. N. S. 129. Same — By failure of bank to apply general deposit in dis- charge of surety or indorser. — See 7 A. C. 1007. Same — By failure to enforce lialnlity of maker. — See 18 L. N. S. 530. Same — By fraud of principal. — See 2 A. C. 353. Same — By indulgence of principal. — See 5 A. C. 435. Same — By negligence of officials. — See 2 A. C. 165, 170. Same — By obligee's surrender of original obligation and ac- ceptance of another which is defective. — See 16 L. N. S. 343. Same — By payment of promissory note by maker, which proves ineffectual as a satisfaction, as affecting liability of surety.— See 13 L. N. S. 204. Same — By payment voidable under bankruptcy act. — See 9 L. N. S. 581. Same — By release of securities, extent of. — See 3 A. C. 433. Same — By surrender of security. — See 4 A. C. 431; 10 A. C. 357. Same — Change of principals to obligation as a. — See 10 L. N. S. 1160. Same — For causes existing prior to his entering upon con- tract of suretyship. — See 63 A. S. 327. Same — On building contractor's bond by making payments not authorized by contract. — See 5 L. N. S. 418. Same — On criminal bail bond by enlistment of principal in military or naval services. — See 6 A. C. 616. Same — Surrender of lease containing option to purchase, effect on liability.— See 9 L. N. S. 557. Same — What acts amount to. — See 7 L. 405; 13 L. 418. Distinguished from guaranty. — See 48 A. S. 496; 6 L. 686; 4 W. & P. 3183. Duration of liability of surety — As to generally, see 1 A. C. 379; 5 A. C. 945. Same — For default after expiration of term. — See 1 A. C. 383. Same — On bail bond, whether ends with conviction of prin- cipal or continues until execution of judgment. — See 3 A. C. 930. Same — On bond of officer appointed for definite term, but for whom the law fixes no definite term. — See 5 A. C. 949. Duty of the creditor to collect of the principal when re- quested by the surety. — See 34 A. R. 580. Effect of contingency of claim against estate of deceased surety. — See 58 L. 82. Effect of death of cosurety. — See 21 L. 184. Enjoining judgment — Against or in favor of sureties. — See 31 L. 59. 1419 § 2831 CIVIL CODE. [Div.III,Pt.IV. Execution of, formality and effect. — See 2 A. C. 219; 3 A. C. 98; 4 A. C. 344. Extension of time by the legislature, when releases the surety. — See 45 A. R. 406. Failure of one obligor to sig'n bond, when releases the others. — See 25 A. R. 706. Failure of principal to sign obligation, as affecting liability of surety. — See 2 A. C. 225. Foreign surety company, power to act as surety. — See 48 L. 592. Fraud of principal as discharge of surety. — See 2 A. C. 353. Guaranty by surety of other signatures. — See 49 L. 315. Indemnity — Given to one surety, right of another to benefit of. — See 15 A. D. 526. Same — Held by one surety, right of another to participate in. — See 43 A. D. 563. Same — Of surety. — See 13 L. 340. Indulgence to principal as discharge of surety. — See 5 A. C. 435. Infant's contract of suretyship. — See 18 A. S. 614. Injunction- — Against judgment entered on confessions against sureties. — See 30 L. 240. Same — Against principal to prevent his transferring his prop- erty to defraud his surety. — See 15 L. N. S. 484. Same — In behalf of surety against judgment. — See 30 L. 567, Intervention, right of surety, in action against principal, or principal in action against surety. — See 68 L. 736. Judgment against principal — As evidence against sureties. — See 9 A. C. 153. Same — Effect of. — See 7 A. C. 1061; 9 A. C. 150. Same — Extinction of by surety's payment. — See 68 L. 513-585. Same — Right of surety to sue to set aside. — See 54 L. 765. Judgments against the former as evidence against the latter. — See 32 A. D. 202; 83 A. D. 380. Law as to becoming surety for a surety maker. — See 21 L. 247-252. Liability of sureties — As to generally, see 8 L. N. S. 1223; 9 L. N. S. 889; 14 L. N. S. 376. Same — Actions and defenses, as to generally, see 4 A. C. 344; 6 A. C. 616; 7 A. C. 1063; 9 A. C. 150. Same — Construction of contract. — See 8 A. C. 241; 10 A. C. 357. Same — ^Duration of liability. — See 1 A. C. 379; 5 A. C. 945, 949. Same — Effect of judgment against principal. — See 7 A. C. 1061; 9 A. C. 150, 153. Same — For particular debts or acts. — See 2 A. C. 353; 4 A. C. 344; 6 A. C. 917. Same — For past defaults, or additional and substituted bonds of guardian. — See 4 A. C. 345. 1420 I Tit.Xin.ch.II.art.I.] SURETYSHIP. §2831 Same — In case of fraud of principal. — See 21 L. 409-413. Same — Not to be cxtonded by implication. — See 13 L. 418. Same — Of executor or administrator for debt of their prin- cipal to decedent. — See 2 A. C. 355. Same — On bond of public officer for act wholly outside of official duty. — See 9 A. C. 919. Same — On official bond, not affected by negligence or oml.s- sion of other officer. — See 2 A. C. 170. Same — Restriction of to agreement. — See 3 L. 168; 4 L. 680; 9 L. 353. Same — When bound by signature. — See 8 L. 735. Same — When the name of the principal or of a cosurety is forged. — See 8 A. S. 246. Limitation of actions by one surety against another. — See 61 A. D. 504. Married woman as to becoming surety for her husband. — See 57 K 513; 66 L. 632. Negligence of officers as discharge of surety. — See 2 A. C; 165. 170. Notice of default necessary to bind guarantor. — See 20 L. 257. Number of sureties. — See 9 A. C. 707. Payment — Of debt by bankrupt as a preference to a surety therefor. — See 18 L. N. S. 660. Same — Of whole debt by surety as essential to right of sub- rogation to creditors' securities. — See 6 A. C. 204. Principal and surety, admissibility of extrinsic evidence to show relation of to note. — See 20 L. 711. Priority of claims of sureties against property in hands of receiver over recorded liens. — See 2 L. N. S. 1026. Proceedings by surfty to compel principal to discharge his obligation.— See 117 A. S. 35. Qualiflrations of surety company as surety upon appeal bond. —See 3 A. C. 98. Receipts of ofllcers, when evldonce against their sureties. — See 3 A. S. 749. Relation of retiring partner as surety upon dissolution of partnership. — See 1 A. C. 725. Release — Of mortgagor as surety by mortgagee dealing with vendee who has assumed mortgage. — See 16 L. 85. Same — Of principal, wlien may not relieve surety. — See 73 A. D. 297. Release of surety — As affecting liability of principal. — See S A. C. 468; see "Discharge," this note. Same — By alteration of Instrument. — See 7 L. 743. Same — By an acceptance or other evidence of Indebtedness. — See 33 A. R. 85. Same — By changing tlie duties or obligations of the princi- pal. — See 6 A. S. 458. 1421 § 2831 CIVIL CODE. [Div.III.Pt.IV. Same — By indulgence of principal. — See 30 A. D. 257. Same — What operates as. — See 28 A. S. 691. Relief of surety in equity. — See 7 L. 84. Right of surety — As to generally, see 5 A. C. 435; 7 A. C. 78. Same — On appeal or supersedeas bond, to look to the sure- ties on a prior bond of the same principal. — See 6 L. N. S. 1021. Same — On bail bond to pursue principal into another state for the purpose of arresting him. — See 14 L. 605. Same — On payment of judgment. — See 16 L. 115. Samc-^Prior to obtaining a judgment or lien, to enjoin prin- cipal's transfer of property to defraud him when. — See 15 L. N. S. 484. Same — To control application of collaterals. — See 12 L. 131. Same — To interpose an independent cause of action in favor of the principal against the plaintiff as a defense or counter- claim. — See 18 L. N. S. 600. Same — To pay debt of principal. — See 1 L. 642. Same — To set off — Generally, see 13 L. 239. Saine — To subrogation on payment of whole debt. — See 6 A. C. 204. Same — To sue to set aside judgment against principal. — See 54 Lr. 765. Rights of creditors — Against principal — As to, generally, see 3 A. C. 465. Same — Same — Release of surety as affecting. — See 3 A. C. 468. Same — To be subrogated to security given to surety. — See 6 A. C. 395. Set-off — In bankruptcy cases. — See 55 L. 68. Same — In insolvency cases. — See 17 L. 460. Same — Rights of surety, as to generally, see 13 L. 239. Signature of name of partnership below the name of another signer, does the fact raise a presumption that it is as a surety only.— See 10 L. N. S. 426. Specific performance of contract to give indemnity to surety. — See 6 L. N. S. 590. Statute of frauds — As to contract between sureties. — See 39 L. 378. Statute of limitations — Time commences to run to bar an action against cosurety for contribution, when. — See 18 L. N. S. 585. Subrogation, as to right of by surety. — See 1 L. 642; 5 L. 282; 7 L. 84; 9 L. 277; 29 L. 240-248. Subrogation of creditor to securities held by surety. — See 5 L. 790. Successive bonds, liability of sureties upon. — See 10 A. S. 843. Surety company — Constitutionality of statute authorizing, to become surety upon bonds required by law. — See 2 A. C. 487. Same — Foreign, power to act as surety. — See 48 L. 592. 1422 I i TJt.XIII.ch.n.art.I.] APPARENT PUINCII'AI.. §2832 Same — Power to act as surety. — See 48 L. 589. Same — Qualifications of as surety upon appeal bond. — See 3 A. C. 98. Suretyship of wife under mortgage of separate property fi)r husband's debts. — See 5 A. C. 643. Surrender of security as discharge of surety. — See 3 A. C. 431; 7 A. C. 1007: 10 A. C. 357. Termination of, right of surety to bring about by notice to obligee before breach of contract. — See 11 A. C. 272. Usury in consideration for extension, effect of. — See 52 L. 312. Validity and effect of bond having a fewer than the required number of sureties. — See 9 A. C. 707. Validity of agreement with surety as to custody and control of trust funds. — See 16 L. N. S. 994. Validity of incumbrances by husband and wife of properly held by the entireties to secure the individual debt of the hus- band. — See 66 L. 632. Validity of sale to surety on executor's bond. — See 4 L. N. S. 820. Vendor as surety in respect to mortgage. — See 5 L. 277; 8 L. 317. Who may become surety. — See 2 A. C. 485, 487; 3 A. C. 98. When surety bound by signature. — See 8 L. 735. S l»s:{->. VriVVKKM THIX IIVVL .H.VV SHOW THAT HK IS M'liETV. One who aitpear.s tu he a principal, whether by the terms of a written instrument or otherwise, may show that he is in fact a surety, except as against |)er.sons who have acted on the faith of his ai)i)arent character of principal. llUliirj: i:ii:iT AGAINST SIRETV D(»ES >0T ALTER THE RELATION. Notwithstanding the recovery of judgment by a creditor against a surety, tiie latter still occu- pies the relation of surety. HIcitory: Enacted March 21, 1872. As to agreement by creditor after Judgment not to collect, see Kerr's Cyc. C. C. § 2838, note. As to continuation of relation of principal and surety after judgment, see 42 A. D. 67; 44 A. D. 384; 46 A. D. 434. As to many miscellaneous matters as to suretyship, see note $ 2831, ante. As to release of surety by extension of time after judgment, see Kerr's Cyc. C. C. 5 2819 note. §2s:}<>. SIRKTV KXONKH ATEI) HY 1»ERF(M{.MAN( E i)\i OFFER OF rERF(M{.>IAN(E. FcMlonnaiice of the priiiciiial obligation, or an offer of such performance, duly made a.s pro- vided in this code, exonerates a surety. IIlNtory: Enacted March 21, 1872; amended March 30. 1874. Code Amdts. 1873-4, p. i;GO. See Kerr's Cyc. C. C. for 13 purs, annotation. 98 C. 390, 399. 33 P. 433 (construed, not affected l>y Jir)O0>; 139 C. 416, 418, 73 P. 179 (applied). As to many miscellaneous matters as to suretyship, see note t 2831, ante. §2840. SIRETV I)IS( 11 AlUiEl) RV (ERTAIV \( |s OF THE CREDITOR. A surety is exonerated: 1. In like manner with a guarantor; 2. To the extent to wliich lie is i)rejudiced by any act of the creditor which would naturally j)rove injurious to the remedies of the surety or inconsistent with his iii:hts. or which lessens his security; or, 3. To the extent to which ho is prejudiced by aii nnnssKin 1425 § 2840 CIVIL CODE. [Div.III,Pt.IV. of the creditor to do anything, when required by the surety, which it is his duty to do. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 8 pars, annotation. 6 P. 853, 857 (cited); 77 C. 476, 477, 19 P. 882, 883 (applied); 78 C. 443, 448, 21 P. 2, 4 (referred to); 87 C. 423, 25 P. 552, 553 (cited); 91 C. 206, 210, 27 P. 648, 649 (applied); 96 C. 623, 626, 641, 29 P. 500, 503, 31 P. 588, 18 L. 465 (referred to in dis. op.); 112 C. 31, 35, 53 A. S. 155, 44 P. 305 (applied); 114 C. 620, 625, 626, 627, 46 P. 613 (construed); 120 C. 495, 501, 52 P. 848 (applied); 130 C. 245, 254, 62 P. 466, 600 (applied); 139 C. 416, 418, 73 P. 179 (applied); 144 C. 91, 96, 77 P. 765 (applied); 145 C. 241, 244, 78 P. 734 (applied); 146 C. 518, 520, 80 P. 695, 696 (applied). As to discharge of surety by concealment by obligee of default of employee, see note 54 L. 945; 13 A. D. 463; 6 A. R. 458; 33 A. R. 63; 39 A. R. 186; 62 A. S. 154; 64 A. S. 479. As to discharge of surety by change in principal's duties, see 32 A. R. 242; 60 A. S. 419. As to discharge of surety by his death, see 68 A. D. 763; 30 A. R. 56; 22 A. S. 814; 63 A. S. 63. As to discharge of surety in general, see 28 A. S. 691; see also Kerr's Cyc. C. C. §§ 2819, 2845 and notes. As to discharge of surety by act of creditor, see 12 L. 418; 29 A. D. 225; 38 A. D. 379; 90 A. D. 415; 54 A. S. 257; 43 A. D. 408; 74 A. D. 545. As to discharge of surety by matters existing at or prior to entering into contract, see 63 A. S. 327. As to discharge of surety by running of statute of limitations against principal, see 60 A. S. 208. As to exoneration of surety by concealment by employer, see 62 A. S. 926; 67 A. S. 319; 21 L. 411. As to exoneration of surety in same manner as guarantor, see Kerr's Cyc. C. C. § 2819 and note. As to liability of sureties on employee's bond as to duties in capacity indemnified though other duties are performed, see 42 A. R. 404. As to liability of surety on a new promise after discharged by statute of limitations, see 68 A. S. 516. As to many miscellaneous matters as to suretyship, see note § 2831, ante. As to release of surety by neglect of creditor to sue principal, see Kerr's Cyc. C. C. § 2823. As to release of surety by release of cosurety, see Kerr's Cyc. C. C. § 1543 and note. As to running of statute of limitations against surety, see Kerr's Cyc. C. C. P. title 11. 1426 J Tit.XIII,ch.lI,art.lI.] SURKTY'S RIGHTS. §§ 2844, 2845 ARTICLE III. RIGHTS OF 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 obligations, when due. § 2847. A prinQipal bound to reimburse his surety. § 2848. The surety acquires the right of the creditor. § 2849. Surety entitled to benefit of securities held by creditor. § 2850. The property of principal to be taken first. § 2844. SURETY HAS RIGHTS OF GUARANTOR. A surety has all the rights of a guarantor, whether he becomes per- sonally responsible or not. History: Enacted March 21, 1872. 77 C. 476, 477, 19 P. 882 (applied); 78 C. 443, 448, 21 P. 2, 4 (referred to); 105 C. 434, 441, 39 P. 20 (applied); 109 C. 211, 221. 41 P. 1028 (applied); 110 C. 658, 665, 43 P. 202 (applied); 120 C. 495, 501, 52 P. 848 (applied); 141 C. 674, 677, 75 P. 296 (applied); 145 C. 241, 244, 78 P. 734 (applied). As to indemnity of surety, see 13 L. 340. As to liability of surety on obligation obtained by fraud, see 21 L. 409. As to many miscellaneous matters as to suretyship, see note § 2831, ante. As to necessity of demand or notice, see Kerr's Cyc. C. C. § 2807 and note. As to right of surety to revoke suretj'ship of continuing lia- bility, see Kerr's Cyc. C. C. § 2815 and note. As to right of surety to take advantage of usurious transac- tions, see 22 A. R. 290, 293. §2845. SURETY MAY RE^UIKE THE CREDITOR TO PROCEED AOAI>ST THE THIXirAL. A surety may re- quire his creditor to proceed against the principal, or to pur- sue any other remedy in his power which the surety cannot 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. History: Enacted March 21, 1872. 1427 §§ 2846, 2847 CIVIL CODE. [Div.in,Pt.IV. See Kerr's Cyc. C. C. for 4 pars, annotation. 53 C. 686, 689 (construed). As to discharge of surety by failure of creditor to collect debt of principal after request by surety, see 7 A. D. 370; 11 A. D. 589; also note 7 L. 405; brief 27 L. 257. As to discharge of surety by failure of creditor to sue prin- cipal upon request, see 34 A. R. 580. As to enjoining judgment against or in favor of surety, see 31 L. 59. As to many miscellaneous matters as to suretyship, see note § 2831, ante. §2846. SIJJETY MAY COMPEL PRINCIPAL TO PER- FORM ORLIGATIOXS, WHEN DUE. A surety may compel his principal to perform the obligation when due. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 53 C. 686, 689 (construed). As to many miscellaneous matters as to suretyship, see note § 2831, ante. §2847. A PRINCIPAL BOUND TO REIMBURSE HIS SURETY. If a surety satisfies the principal obligation, or any part thereof, whether with or without legal proceedings, the principal is bound to reimburse what he has disbursed, in- cluding necessary costs and expenses; but the surety has no claim for reimbursement against other persons, though they may have been benefited by his act, except as prescribed by the next section. HlMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 53 C. 686, 689 (construed); 67 C. 238, 243, 7 P. 664 (applied); 22 P. 203, 205 (applied); 117 C. 195, 202, 49 P. 8, 9 (construed); 121 C. 419, 423, 66 A. S. 44, 53 P. 933 (applied); 122 C. 669, 673, 55 P. 689 (principal is liable to sureties); 127 C. 525, 527, 59 P. 989 (applied); 133 C. 574, 578, 65 P. 1094 (applied — payment of note by accommodation indorser, as surety for corporation). As to many miscellaneous matters as to suretyship, see note § 2831, ante. As to right of surety to maintain assumpsit against princi- pal, see 38 A. D. 44. 1428 Tlt.XIII,ch.n.ait.lII.] ACQUIHKD RIGHTS. §§2848.2849 As to riKlit of surely to sue principal before actual payment, see 24 A. D. 324; to principal, see 1 A. D. 47. As to right of surety to ."^ue principal wltliout notUe of pay- ment, see 24 A. D. 324. S2>^t^. niK siHKiv A( (M m:i:s rm; ijh.hi ok iiik CKKIHTOK. .\ surety. ui)ou satisfying the obliKatidii of the liriii(i|ial. is entitled to enforce every remedy which the creditor then has against the principal to the extent of reim- bursing what he has expended, and also to require all his cosureties to contribute thereto, without regard to the order of tin)o in which they became such. lllMtoryt Knacted March 21. 1S72. See Kerr's Cyc. C. C. for 10 pars, annotation. 53 C. 686. 6S9 (construed) 67 C. 23S. 243. 7 P. 664 (appli.-l.. -. \\ 203. 205 (applied): 51 P. 20. 21 (applied); 122 C. 669. 673, 55 P. 689 (principal Is liable to sureties); 130 C. 245. 254, 62 P. 466. 600 (api)lled); 133 C. 674. 578, 65 P. 1094 (referred to); 139 C. II. 49. 72 P. 440 (applied In dis. op.); 145 C. 497. 499, 7S P. 1056 Ited): 152 C. 443. 448. 93 P. 75 (subroKatlon to all rights and ■ inrrlli-s of Judgment . 612: 52 A. n. 641; 56 A. D. 6S; K3 A. I>. 390; 10 A. S. 639; 70 A. S. 443; 9 L. 411; 21 Is. 252; 32 A. D. 96; brief 22 I.. 444. 44$. Am Iu discharge of surety by his deittli from liability to con* tribute, see 68 A. P. 7(>4. As to effect i>f statute of frauds upon contracts between suro- tl.B to fix their liabilities, see 39 U 378. As to many miscellaneous matters as tn suretyship, s^e note I 2831. ante. As to rights . 641: 7 K. 84. As to statute of limitations In artlon between auretles. see tl A. D. 604. As to subrogation of surety of rights of creditor, see SI A. D. •1. tl A. D. 384; 90 A W 115. brief 45 L. IBt, «7. r>»'». SI IM 1\ IMITi.in TO nK>KFIT OF SF( IIU- IIFS m.l.I) in (IIIDIIOH, A .^ui.tv is .niitl.d m the 1429 § 2850 CIVIL CODE. [Div.III.Pt.IV. benefit of every security for the performance of the principal obligation held by the creditor, or by a cosurety at the time of entering into the contract of suretyship, or acquired by him afterwards, whether the surety was aware of the secur- ity or not. Ht.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 96 C. 626, 641. 29 P. 500, 503, 31 P. 588, 18 L. 465 (referred to in dis. op. by Harrison, J.); 114 C. 620, 625, 626, 627, 46 P. 613 (applied); 119 C. 67, 70, 51 P. 14 (referred to); 127 C. 365, 371, 78 A. S. 60, 59 P. 762 (applied); 133 C. 574, 578, 65 P. 1094 (referred to); 139 C. 41, 49, 50, 52, 72 P. 440 (applied in dis. op. by Shaw, J.); 1 C. A. D. 173, 174 (construed with §1473, ante); 1 C. A. 251, 253, 81 P. 1115 (construed with §§ 1473, 2848 — surety's pay- ment of obligation extinguishes it — remedy); 3 C. A. 696, 700, 86 P. 981 (contract of suretyship — right to benefit of collateral security); 6 C. A. 686, 689, 92 P. 1035 (right of cosurety to sub- rogation); 7 C. A. 124, 125, 93 P. 893, 894 (applied with §§1473, 2848 — full performance of obligation, by any person, on behalf of principal, with his assent, extinguishes obligation — remedy of surety). As to indemnity to surety, see brief, 28 L. 400. As to many miscellaneous matters as to suretyship, see note § 2831, ante. As to right of sureties to indemnity taken by cosurety, see 15 A. D. 526; 27 A. D. 720; 43 A. D. 563; 71 A. S. 906. As to right of surety to control application of collaterals, see 12 L. 131. As to right of surety to enforce judgment which he has paid, see 16 L. 115. As to right of surety to security in hands of creditor, see 34 A. D. 413; 37 A. D. 458; 7 A. S. 372; 12 A. S. 506; 5 L. 288; 9 L. 227; brief 1 L. 715. §2850. THE PKOPERTY OF PRINCIPAL TO BE TAKEN FIRST. Whenever property of a surety is hypothecated with property of the principal, the surety is entitled to have the property of the principal first applied to the discharge of the obligation. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 119 C. 67, 70, 51 P. 14 (referred to); 120 C. 495, 501, 52 P. 848 (applied). 1430 Tit.XIII.ch.lI.iirt.lV.l CREDITOR'S UIOHTS. $2854 As to many miscellaneous matters as to suretyship, see note S 2831. ante. As to rlfflit of surety to set-oflf In favor of principal, see 47 A. S. 592; also 17 L. R. A. 460. As to rlfflit of surety to s<»t up counterclaim cxlstinR in favor of Ills principal against plaintiff, see Kerr's Cyc. C. C. P. | 438 and note. AUTirLK IV. RIGHTS OF CHKDITORS. S 2.s.">4. Creditor entitled to benefit of securities hild l>y sur.^ty. ^2s:a. (kfditor entitled to kenefit of SECr- KITIES lli;i,I> IJV SI HKTV. A creditor is entitled to the benefit of everything wliich a surety has received from the- debtor by way of security for the performance of the obli- gation, and may, upon the maturity of the obligation, compel the application of such security to its satisfaction. HlMtoryi Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 109 C. 133, 133, 186. 41 V. 868 (applied). As to many miscellaneous matters as to surrty.shlp. see note I 2831, ante. As to riKht of creditor to securities In hands of surety, see 27 A. D. 720. 1431 §§ 2858-2861 CIVIL CODE. [Div.III.Pt.IV. ARTICLE V. LETTER OF CREDIT. § 2858. Letter of credit, what. § 2859. How addressed. § 2860. Liability of tlie writer. § 2861. Letters of credit eitlier 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. S 2865. When notice to the writer necessary. § 2866. The credit given must agree with the terms of the letter. §2858. LETTEE OF CREDIT, WHAT. A letter of credit is a written instrument, addressed by one person to another, requesting tlie latter to give credit to the person in whose favor it is drawn.' History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 125 C. 472, 481, 73 A. S. 64, 58 P. 164 (applied). As to many miscellaneous matters as to suretyship, see note § 2831, ante. §2859. HO>V ADDRESSED. A letter of credit may be addressed to several persons in succession. History: Enacted March 21, 1872. §28(50. LIABILITY OF THE WRITER. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 70 C. 380, 384, 59 A. R. 416, 11 P. 636 (applied). As to many miscellaneous matters as to suretyship, see note § 2831, ante. §2861. LETTERS OF CREDIT EITHER GENERAL OR SPECIAL. A letter of credit is either general or special. When the request for credit in a letter is addressed to speci- 1432 k Tlt.XIIF.fh.FI.art.V.] I.ETTER OF CREDIT. §§2862-2865 fled persons by name or descrii)tion, the letter is special. All other letters of credit are general. lllM(« (>rARA\TV. if the parties to a letter of credit appear, by its terms, to contemplate a course of future dealing be- tween the parties, it is not exhausted by giving a credit, even to the amount limited by the letter, which is subsequently reduced or satisfied by payments made by the debtor. b\it is to be deemed a continuing guaranty. lllH(..r>: Kn.ut.d March 21, 1S72. !j2s«r.. »IIE> NOTICE TO THF »RITKR NK( KSSVRY. The writer of a letter of credit is lial)]e for credit given upon it without notice to him. unless its terms express or imply the necessity of giving notice. Ilintory: Knarlo.l M:iroli 21. 1872. 1433 §2866 CIVIL CODE. .[Div.III,Pt.IV. See Kerr's Cyc. C. C. for 2 pars, annotation. 125 C. 472, 481, 73 A. S. 64, 58 P. 164 (applied). As to many miscellaneous matters as to suretyship, see note § 2831, ante. §2866. THE CREDIT GIVEN MUST AGREE WITH THE TERMS OF THE LETTER. If a letter of credit prescribes the persons 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, conform strictly to the terms of the letter. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 61 C. 405, 430 (applied in dis. op.). As to limitation of letter of credit to person addressed, see 53 A. D. 289. As to many miscellaneous matters as to suretyship, see note § 2831, ante. 1434 i Tit.XIV.ch.I.art.I.] LIENS— DEFINITION. §2872 TITL?: XIV. LI EX. [For Commissioners' comment on this title, see Kerr's Cyc. C. C] Chapter I. Liens in General, §§2872-2913. II. Mortgage, §§ 2920-2973. III. Pledge, §§ 2986-3011. IV. Bottomry, §§3017-3029. V. Respondentia, §§ 3036-3040. VI. Other Liens, §§3046-3065. VII. Stoppage in Transit, §§ 3076-3080. CHAPTER I. LIENS IN GENERAL. Article I. Definition of Liens, §§ 2872-2877. II. Creation of Liens,. §§ 2881-2884. 111. Effect of Liens, §§2888-2892. IV. Priority of Liens, §§ 2897-2899. V. Redemption from Liens, §§ 2903-2905. VI. Extinction of Liens, §§2909-2913. .\UTICLK I. DIOF^INITION OF LIEN. § 2872. Lien, wliat. 8 2873. Liens, pcncrnl or special. S 2874. General lien. what. § 2875. Special lien, what. § 2876. Prior liens. § 2877. Contracts subject to provi.slons of this chapter. § 2S72. LIE>', WHAT. .\ lien is a charge imposed in some mode other than l)y a transfer in trust upon specific prop- 1435 § 2872 CIVIL CODE. [Div.III.Pt.IV. erty by which it is made security for the performance of an act. History: Enacted March 21, 1872; amended February 15, 1878, Code Amdts. 1877-8, p. 88. See Kerr's Cyc. C. C. for 14 pars, annotation. 118 C. 413, 419, 50 P. 546 (construed and applied): 121 C. 379, 384, 53 P. 813 (construed and applied); 126 C. 467, 469, 77 A. S. 192, 58 P. 907 (construed and applied); 149 C. 316, 320, 86 P. 706 (construed and applied with other sections of the codes as to effect of deed of trust); 3 C. A. 561, 569, 86 P. 820 (no lien, legal or equitable, when); 58 F. 666, 668, 7 C. C. A. 422 (con- strued and applied with other sections). lilENS — IN GENERAL. As to actions in general to enforce liens, see 11 L. 740. As to attachment liens, see Kerr's Cyc. C. C. P. § 537 and note. As to attorneys' liens for compensation, etc., see Kerr's Cyc. C. C. §2872 and note; and Kerr's Cyc. C. C. P. §300 and note; 31 A. D. 755-760; 51 A. S. 251-281. As to bottomry liens, see Kerr's Cyc. C. C. § 3017 and note; also note § 3017, post. As to carrier's lien for freightage, see Kerr's Cyc. C. C. § 2144 and note. As to carrier's lien upon baggage for payment of fare, etc., see Kerr's Cyc. C. C. § 2191 and note. As to common-law or statutory liens, when enforceable, in equity, see 74 A. S. 383, 389. As a conveyance in fraud of lien-holders, see 61 A. D. 699. As to corporation liens upon stock, see 57 A. S. 393, 394. As to cotenant's lien on share of another, see 35 A. S. 416-422. As to crops raised by tenant, right of landlord to reserve lien thereon, etc., see 14 A. S. 166-168. As to deposits in bank, liens of bankers tliereon, see 4 A. S. 202, 204. As to equitable estate, when covered by lien, see 45 A. D. 678. As to equitable liens in general, see 4 A. S. 700, 701. As to equitable liens of partners, see 28 L. 102, 103. As to equitable liens, when arise, see 74 A. S. 387. As to general liens, see Kerr's Cyc. C. C. § 2874 and note; also note § 2872, ante. As to improvements by lessee, liens therefor, etc., see 61 A. D. 697. As to innkeepers' and boarding-house keepers' liens, see Kerr's Cyc. C. C. §§ 1861-1863 and notes. As to interests affected by liens in general, see 45 A. D. 678-680. 1436 Tit.XIV,ch.I,art.I.] I^TRNS, GENERALLY. § 2872 As to judgment liens, see Kerr's Cyc. C. C. P. §§ 671 et seq. and notes. As to laborers' lien, see 58 A. S. 303-309. As to laborers' liens, liens for salary, etc., see Kerr's Cyc. C. C. P. §§ 1204-1208. As to liens in general, see note 88 A. D. 59. As to liens for taxes, see Kerr's Cyc. Pol. C. §§3716-3718 and notes. As to liens on steamers, vessels, boats, etc., see Kerr's Cyc. C. C. P. §813 and note; 13 A. R. 273-275. As to life estate, when covered by lien, see 45 A. D. 679. As to mechanics' liens upon real property and means of en- forcement thereof, see Kerr's Cyc. C. C. P. §§ 1183-1203a and notes; also Kerr's Pocket C. C. P. §§ 1183-1203a and notes. As to mining partner's lien, see § 2514 and note. As to mortgage as lien upon everything that passes by grant of property, see Kerr's Cyc. C. C. § 2926 and note. As to mortgage liens in general, see Kerr's Cyc. C. C. §§ 2920 et seq. and notes; also note § 2920, post. As to mortgage liens on real property, see Kerr's Cyc. C. C. §§ 2947 et seq. and notes. As to mortgage liens upon real property, procedure for en- forcement thereof, etc., see Kerr's Cyc. C. C. P. § 726 and note. As to mortgage of personal property, see Kerr's Cyc. C. C. §§ 2955 et seq. and notes. As to partner's lien upon partnership property for payment of partnership debts, etc., see Kerr's Cyc. C. C. § 2405 and note. As to persons entitled to liens in general, see 32 A. R. 266, 267. As to pledge, see Kerr's Cyc. C. C. §§ 2986 et seq. and notes. As to powers of receivers to create Hens, see 83 A. S. 72-80. As to preferred stockholders not entitled to Hens on corpo- rate property, see 73 A. S. 229, 230. As to purchase price, lien on homestead therefor, etc., see 86 A. S. 174-182. As to receivers, lions against property in liands of, etc., see 71 A. S. 359, 369. As to redemption from tax liens, sec Kerr's Cyc. Pol. C. §§ 3781-3785 and notes. As to respondentia, see Kerr's Cyc. C. C. §3096 and note. As to special lions, see Kerr's Cyc. C. C. § 3875 and note. As to stoppage in transitu, see Kerr's Cyc. C. C. S 3076 and note. As to waiver of liens, see 41 A. D. 221-224. Acquired by service of notice In supplementary proceedings. — See 3 L. N. S. 123. Against trust estates in favor of creditors or trustees. — See 19 A. S. 67. 1437 § 2872 CIVIL CODE. [Div.III.Pt.IV. Agister's lien, priority of. — See 17 L. 792; 12 L. N. S. 310. Agreement for support in consideration of conveyance, as basis for equitable lien. — See 13 L. N. S. 725. Banker's not founded on contract. — See 4 A. S. 202; 111 A. S. 419. Banker's on deposit. — See 6 L. 327. Carrier's. — See 4 L. 376. Duress by, on real property. — See 16 L. 376. Equitable — As to what are and how created — See 4 L. 248. Exemption of debts on dissolution of partnership as affecting partnership lien. — See 9 L. N. S. 102. Extinguishment of, as to, generally, see 23 L. 233; 57 L. 340; 68 L. 323. For labor, priority of pre-existing mortgage. — See 2 L. N. S. 615. Garage owner, right to. — See 1 L. N. S. 240. Implied covenant of title on sale of chattels as protection against outstanding liens. — See 16 L. N. S. 410. Injunction in favor of, or against lien creditors to prevent execution sales. — See 30 L. 125. Inkeeper's. — See 21 L. 229. Jurisdiction of equity to enforce liens. — See 74 A. S. 387. Liability of different parcels in inverse order of alienation. — See 5 L. 282. Of alimony.— See 9 A. C. 89, 90; 9 A. C. 1083. Of artisans and tradesmen at the common law. — See 37 A. D. 522. Of attorneys.— See 31 A. D. 755; 51 A. S. 251. Of bank against deposit. — See 2 A. C. 206. Of carrier for demurrage. — See 3 L. N. S. 329; also note § 2114, ante. Of corporations against shares of stock. — See 3 A. C. 187, 188; 57 A. S. 393. Of factors. — See 3 A. C. 643, 644. Of innkeepers. — See 3 A. C. 625. Of judgment, as to, generally, see 3 A. C. 1146; 4 A. C. 100; 5 A. C. 204; 7 A. C. 334; 7 L. N. S. 415; 9 L. N. S. 1026. Same — Interests of estates subject thereto. — See 117 A. S. 776. Of landlord on the property of his tenant. — See 119 A. S. 122. Of mechanics and materialmen. — See Kerr's Cyc. C. C. P. §§ 1183-1203a and notes; also Kerr's Pocket C. C. P. §§ 1183-1203a and notes. Of mortgage. — See note § 2929, post. Of one cotenant on the moiety of another. — See 35 A. S. 416. Of part owner of a vessel for debts and advances. — See 90 A. S. 387. Of purchaser for purchase money on vendor's failure to com- plete contract. — See 8 A. C. 956, 958. 1438 i Tit.XIV,ch.I,art.I.] I^IENS, generat.t.y. § 2872 Of vendors — Of personal property. — See 83 A. S. 451. Same — Of real estate for unpaid purchase money. — See 4 A. S. 704; 36 A. S. 174. On abutting property for cost of sewer. — See 60 L. 230. On animals for cost of keeping-. — See 6 L. 82. On commercial paper purchased by bank after it has mingled trust money witli its own funds. — See 5 L. N. S. 1100. On property — Of bankrupt of one whose funds are wrong- fully used in purchasing it. — See 9 L. N. S. 876. Same — Of member of mutual insurance company as security for his liability. — See 32 L. 504. Power — Of courts to create and enforce to secure for the pay- ment of alimony. — See 102 A. S. 700. Same — Of partner to create, upon firm real property. — See 28 L. 97. Same — To permit receiver of private corporation to create, on its property. — See 16 L. 603. Priority of — As to, generally, see 9 L. 481. Same — Agister's to chattel mortgage. — See 17 L. 792. Same — As between lien of chattel mortgage and lien ac- quired by furnishing food or care for animals. — See 12 L. N. S. 310. Same — Implied covenant of title on sale of chattels as pro- tection against outstanding liens. — See 16 L. N. S. 410. Same — Of agister. — See 12 L. N. S. 310. Same — Of chattel mortgage filed for record as against lien acquired after execution of mortgage. — See 33 L. 163. Same — Of claims against property in hands of receiver over recorded liens. — See 2 L. N. S. 1013. Same — Of local assessment over prior lien. — See 35 L. 372. Same — Of railroad mortgage over other. — See 9 L. 143. Same — Of statutory preference of claim for labor over pre- existing mortgage. — See 2 L. N. S. 615. Priority of agister's Hen. — See 17 L. 792. Purchase subject to, as to, generally, see 25 L. 275; 59 L. 737. Receiver's power to create. — See 83 A. S. 72. Right — Of creditors of a corporation which has transferred all or substantially all of its assets to another corporation, to subject the assets so transferred to inequitable lion. — See 5 Li. N. S. 520. Same — Of lienor, as to, generally, see 4 A. C. 980. Same — Of owner of garage to. — See 1 L. N. S. 240. Same — Of trustee to create, on trust estate. — See 7 L. 656. Statute of limitations, effect of upon vendors. — See 95 A. S. 663. Taking of property by general owner for purpose of de- feating lien thereon, as larceny. — See 12 L. N. S. 94. 1439 §§ 2873-2875 CIVIL CODE. [Div.III.Pt.IV. Vendor's, for purchase price of railroad rails. — See 66 L. 44. Waiver of — By attachment or execution. — See 50 L. 714-722. Same — By refusal to surrender property. — See 63 A. D. 413. § 2873. LIENS, GENERAL OR SPECIAL. Liens are either general or special. History: Enacted March 21, 1872. As to general and special liens, see Kerr's Cyc. C. C. §§ 2872, 2874, 2875 and notes. As to general liens for services, see 37 A. D. 522. As to many miscellaneous matters as to liens in general, see note § 2872, ante. As to particular liens for services, see 37 A. D. 522, As to unclassified liens, designated as "other liens," see Kerr's Cyc. C. C. §§ 3046 to 3065 and notes. §2874. GENERAL LIEN, WHAT. 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 par- ticular class of obligations, which exist in his favor against the owner of the property. Hi-story: Enacted March 21, 1872. As to many miscellaneous matters as to liens in general, see note § 2872, ante. As to general and special liens, see Kerr's Cyc. C. C. § 2872 and note. As to general lien of mates and seamen, see Kerr's Cyc. C. C. § 3056 and note. As to general lien of shipmaster, see Kerr's Cyc. C. C. § 3055 and note. As to general liens of banker, see Kerr's Cyc. C. C. § 3054 and note. §2875. SPECIAL LIEN, WHAT. A special lien is one which the holder thereof can enforce only as security for the performance of a particular act or obligation, and of such oblitions [obligations] as may be incidental thereto. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 146 C. 555, 560, 80 P. 711, 713 (construed and applied with other sections); 152 C. 350, 352, 93 P. 67 (cited); 3 C. A. 561, 569, 86 P. 820 (no lien, legal or equitable, when). 1440 i i Tit.XIV,ch.I,art.I.] PRIOR LIENS. §§ 2876, 2877 As to lien of factor, see Kerr's Cyc. C. C. § 3053 and note. As to many miscellaneous matters as to liens In general, see note § 2872, ante. As to mortgage lien, when special, see Kerr's Cyc. C. C. S 2923 and note. As to officer's lien on attachment or execution, see Kerr's Cyc. C. C. §3057 and note; also Kerr's Cyc. C. C. P. 5§ 542 et seq. and notes §§ 682 et seq. and notes. As to special lien for services, see Kerr's Cyc. C. C. § 3051 and note. As to special lien of seller of personal property, see Kerr's Cyc. C. C. § 3049 and note. As to special lien on personal property for alterations, re- pairs, etc., see Kerr's Cyc. C. C. § 3052 and note. As to vendor's lien upon real property, see Kerr's Cyc. C. C. § 3046 and note. § 2876. PRIOR LIENS. Where the holder of a special lien is compelled to satisfy a prior lien for his own protection, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists. Ill.story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 121 C. 647, 656, 54 P. 254 (construed and applied): 14S C. 669. 675, 113 A. S. 324, 84 P. 155 (advances by mortgagee to dis- charge paramount liens are barred by statute of limitations when); 152 C. 350, 353, 93 P. 67 (construed — mortgagee has spe- cial lien — meaning of "satisfy"). As to many miscellaneous matters as to liens in general, see note 8 2872, ante. §2S77. (()>TRV(TS Sl'IUECT TO PROVISIONS OF THIS CII.VPTER. Contracts of mortgase, pledi^e. bottomry, or re- si)ondentia, are subject to all the provisions of this chapter. lllHlory: Ktia.t."MEKT OF LIE^'. The partial per- formance of an act secured by a lien does not extinguish the lien upon any part of the property subject thereto, even if it is divisible. History: Enacted March 21, 1872. 122 C. 413, 416, 418, 55 P. 145 (construed and applied with other sections). As to many miscellaneous matters as to liens in general, see note § 2872, ante. As to means prescribed by code of extinguishing liens being exclusive, see Kerr's Cyc. C. C. § 2909 and note par. 10. §2913. WHEN BESTOHVTIOX EXTINGUISHES LIEN. The voluntary restoration of property to its owner by the holder of a lien thereon dependent upon possession extin- guishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it, notwithstanding any sucli agreement, as to creditors of the owner and persons, subse- quently acquiring a title to the property, or a lien thereon, in good faith, and for value. HLstory: Enacted March 21, 1872: amended March 30, 1874, Code Amdts. 1873-4, p. 260; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, held uncon- stitional, see history, § 4 ante; amendment re-enacted Marcli 21, 1905, Stats, and Anidts. 1905, p. 617. See Kerr's Cyc. C. C. for 3 pars, annotation. 59 C. 154, 159, 168, 43 A. R. 245 (construed and applied); 99 C. 516, 518, 33 P. 1081, 1082; 122 C. 413, 416, 418, 55 P. 145 (con- strued and applied with other sections). As to many miscellaneous matters as to liens in general, see note § 2872, ante. As to means prescribed by code of extinguishing liens being exclusive, see Kerr's Cyc. C. G. §S 2909 et seq. and notes. 1453 § 2920/ CIVIL CODE. [Div.III.Pt.IV. CHAPTER II. MORTGAGE. Article I. Mortgages in General, §§ 2920-2942. II. Mortgages of Real Property, §§ 2947-2952. TIT. Mortgages of Personal Property, §§ 2955-2973. ARTICLE I. MORTGAGES IN GENERAL. § 2920. Mortgage, what. § 2921. Property adversely held may be mortgaged. § 2922. To be In writing. § 2923. Lien of a mortgage, when special. § 2924. Transfer, when mortgage, when pledge. § 2925. Transfer made subject to defeasance may be proved. § 2926. Mortgage, on wliat a lien. § 2927. Mortgage does not entitle mortgagee to possession. § 2928. Mortgage not a personal obligation. § 2929. Waste. § 2930. Subseqxiently acquired title inures to mortgagee. § 2931. Foreclosure. § 2932. Power of sale. § 2933. Power of attorney to execute. § 2934. Recording assignment of mortgage. § 2935. Not notice to mortgager. § 2936. Mortgage passes by assignment of debt. § 2937. Time allowed for filing mortgage for record [repealed]. § 2938. Mortgage, how discharged. § 2939. Same. [On certificate.] § 29391/^. Same — How foreign executors and administrators may satisfy mortgages. § 2940. Same. [Record and reference.] § 2941. Duty of mortgagee on satisfaction of naortgage. § 2942. Provisions of this chapter do not affect bottomry or respondentia. § 2920. MORTGAGE, WHAT. Mortgage is a contract by which specific property is hypothecated for the performance of an act, without the necessity of a change of possession. History: Enacted March 21, 1872. 1454 Tit.XIV.ch.II.art.I.] mortgages. § 2920 See Kerr's Cyc. C. C. for 56 pars, annotation. 58 C. 11, 15 (cited); 66 C. 97, 98, 4 P. 1062, 1063 (cited); 88 C. 437, 441, 22 A. S. 314, 26 P. 203, 204, 13 L. 137 (construed); 98 C. 514, 518, 33 P. 486, 487, 488 (cited); 107 C. 144, 148, 40 P. 37 (cited); 109 C. 360, 365, 42 P. 35 (cited); 112 C. 180, 187, 53 A. S. 201, 40 P. 104, 44 P. 484 (cited); 121 C. 487, 489, 66 A. S. 57, 53 P. 1081 (cited); 122 C. 478, 479, 55 P. 143 (referred to); 125 C. 459, 461, 58 P. 89 (cited); 128 C. 293, 300, 60 P. 769 (cited); 128 C. 489, 491, 61 P. 84 (cited); 135 C. 277, 279, 67 P. 129 (applied); 147 C. 384, 389, 81 P. 1077 (cited); 148 C. 650, 653, 84 P. 186 (cited — what is more than a mortgage); 151 C. 606, 612, 91 P. 518 (power to "mortg'age" property carries only what power); 6 C. A. 455, 458, 92 P. 393 (construed with §2927 — effect of mortgage as to title or possession); 11 F. 253, 259 (cited). MORTGAGES — GENERALLY. As to vendor's lien, see Kerr's Cyc. C. C. § 3046 and note. Absence of mortgagor from state as suspension of running' of statute of limitations against action for foreclosure. — See 8 A. C. 1173. Actions and defenses on, as to, generally, see 4 A. C. 818; 5 A. C. 515. Actions by mortgagees for removal of fixtures. — See 13 A. S. 153. Adverse possession by mortgagor or his grantee against mortgagee. ^See 1 L. N. S. 136. After-acquired personal property, effect of upon. — See 76 A. D. 723; 109 A. S. 510. After-acquired property, as to whether included in. — See 9 L. 140-142. Agreement for support in consideration of conveyance, as basis for equitable lien. — See 13 L. N. S. 725. Agreement to renew. — See Kerr's Cyc. C. C. § 2922 and note pars. 25-29. Application of insurance money extinguishes mortgage. — See 9 A. C. 58, 66. Application of proceeds of sale under deed of trust or mort- gage, effect of upon the running of limitation against the in- debtedness secured. — See 14 L. N. S. 479. Application of rents and profits in hands of mortgagee in possession. — See 3 A. C. 1132. Another debt, continuing lien after payment of to secure. — See 4 A. C. 316. Antecedent debt as consideration constituting grantee or mortgagee purchaser for value. — See 3 A. C. 395. Assignee of mortgage as to lateral security, who forecloses the same and holds tlie property, does he hold the title subject to a trust in favor of the assignor. — See 7 L. N. S. 1094. 1455 § 2920 CIVIL CODE. [Div.III,Pt.IV. Assignment of mortgage, as to generally, and effect of. — See 14 A. D. 512; 2 L. 736; 5 L. 292; 5 L. 621; 6 L. 61; 8 L. 724; 13 L. 294. Assignor of mortgage, right to enforce option to declare entire mortgage debt due for default of payments. — See 15 L. N. S. 590. Assumption of by grantees, what amounts to and tlieir lia- bility under. — See 78 A. D. 73. Bar of other remedies, effect to prevent sale under power in.— See 13 K N. S. 1210. Breach of policy of insurance by mortgagor, effect of on rights of mortgagee. — See 18 L. N. S. 197. Burial lot, right to mortgage. — See 67 L. 122. By guardian, necessity of bond to make valid. — See 33 L. 761. Chattel mortgages. — See Kerr's Cyc. C. C. §§ 2955-2973 and notes. Concurrent remedies of holders of. — See 73 A. S. 559. Consideration for, as to generally, see 10 L. 459; 33 L. 303; 55 L. 933; 62 L. 61. Contents and sufficiency of. — See 3 A. C. 393; 10 A. C. 249. Continuance of, as security notwithstanding changes in the form of the debt. — See 85 A. D. 466, 467, 471. Continuing lien of mortgage after payment to secure another debt.— See 4 A. C. 316. Contribution among persons holding lands affected by. — See 16 A. D. 141. "Conveyance" includes "mortgage." — See Kerr's Cyc. C. C. § 2952 and note par. 3. Corporation — Foreign, right to take on real property in the state. — See 24 L. 328. Same — Mortgage by in favor of, or for the benefit of, direct- ors, right of subsequent creditor to question, in absence of fraud. — See 12 L. N. S. 825. Same — Power of president and vice president of, to give. — See 14 L. 359. Same — Power of to mortgage. — See 6 L. 565; 11 L. 846. Cotenant, right of one who pays mortgage as to subrogation to the rights of mortgagee as against other cotenants or his ■privies. — See 8 L. N. S. 559. Crops and emblements, right to on foreclosure. — See 4 L. 453. Crops to be planted, validity of mortgage of, or agreement to mortgage. — See 5 A. C. 400. Debts secured, right of bondholders, as to generally, see 6 L. 566; 10 L. 508; 20 L. 535; 21 L. 550; 24 L. 800; 35 L. 536. Decree and sale on foreclosure. — See 37 L. 743. Deduction of, in computing succession tax. — See 16 L. N. S. 329. Deed — Absolute in form with agreements to reconvey. — See 17 A. D. 300. 1456 i Tit.XIV,ch.II,art.I.] MORTGAGES. § 2920 Same — Absolute on face, a mortgage when. — See 5 L. N. S. 387; 11 L. N. S. 209; 11 L. N. S. 825. Same — Delivered in escrow as further security for debt, effect of on right to redeem from sale under foreclosure. — See 2 L. N. S. 628. Deed and mortgage, effect upon one who signs but is not named in. — See 13 L. N. S. 298. Defective execution of mortgage. — See Kerr's Cyc. C. C. § 2922 and note par. 7. Deficiency, judgment and execution for. — See 4 L. 205. Description in, what title or interest passes. — See 6 L. 566; 9 Lr. 140, 141, 142; 12 L. 177; 18 L. 76; 66 L. 44. Same — Fixtures. — See "Fixtures," this note; also note § 660, ante. Description of indebtedness in. — See 49 A. S. 207. Distinction between deed of trust and mortgage. — See Kerr's Cyc. C. C. § 2932 and note pars. 5, 6. Distinction between pledge and mortgage. — See Kerr's Cyc. C. C. § 2928 and note par. 11. Distinction of liens. — See Kerr's Cyc. C. C. §§ 2909-2913 and notes. Effect of release by mortgagee of mortgaged premises to grantee or mortgagor on liability of mortgagor for mortgage debt. — See 6 A. C. 550. Ejectment by mortgagee. — See 18 L. 788. Eminent domain, remedies by and against mortgagees in proceedings in. — See 88 A. S. 363. Entry by mortgagee by virtue of an interest in the property, but not under the mortgage, effect of to enable him to hold as mortgagee in possession. — See 16 L. N. S. 151. Equitable mortgages — As to generally, see 4 A. D. 696-708. Same — Keeping alive after payment. — See 1 L. N. S. 405. Same — What constitute. — See 4 A. S. 696; 3 W. & P. 2442. Equity has jurisdiction to declare effect of instrument. — See Kerr's Cyc. C. C. § 2924 and note par. 22; § 2948 note par. 11. Equity of redemption — Contracts between mortgagor and mortgagee for the release of. — See 55 A. S. 100. Same — Terms of redemption. — See 6 A. C. 471. Same — Whether subject to execution on judgment for the mortgage debt. — See 11 A. D. 193. Same — ^Who may exercise. — See 4 A. C. 806; 4 A. C. 846; 6 A. C. 471; 8 A. C. 361. Same — Same — Married woman during life of husband. — See 6 A. C. 475. Same — Same — One improperly omitted as party. — See 4 A. C. 848. Same — Same — Tenant for years. — See 4 A. C. 807. Estate of the mortgagee at common law. — See 7 A. S. 31. 1457 § 2920 CIVIL CODE. [Div.III,Pt.IV. Estoppel created by against the mortg-agor. — See 45 A. D. 392. Execution of, formalities and validity. — See 6 L. 565; 8 L. 614; 16 L. 719; 22 L. 297. Same — Execution and acknowledgment by corporation. — See 6 L. 565. Same — Signed by proxy. — See 22 L. 97. Extension of time — As discharge. — See "Payment, discharge, and extinction," this note. Same — To grantee who has assumed mortgage debt as re- leasing personal liability of mortgagor. — See 9 A. C. 259. Extent to which bondholders are represented by trustee in mortgage or deed of trust, securing bonds. — See 16 L. N. S. 1006. Extinguishnient of mortgage — By application of insurance money. — See 9 A. C. 58, 66. Same — By payment. — See 9 A. C. 1193; 10 A. C. 278. Same — By tender. — See 7 A. C. 1061; 8 A. C. 361; 10 A. C. 278. Same — Same — By whom must be made to extinguish lien. — See 7 A. C. 1065. Same — Same — Effect of tender after maturity and before foreclosure. — See 8 A. C. 368. Failure of mortgagor to give notice of proof of loss, effect of upon right of mortgagee to recover under the policy. — See 14 L. N. S. 459. Fictitious names as affecting liability of.— See 49 L. 423. First and last days in computing time for sale under mort- gage foreclosure. — See 49 L. 233. Fixtures — As to between mortgagor and mortgagee, and pur- chaser under sale — Generally, see 1 L. 350; 7 L. 279; 10 L. 725; 15 L. 57; 19 L. 444. Same- — Right of purchaser at foreclosure sale with respect to.— See 7 L. 278. Foreclosure of — As to generally, see 4 A. C. 846; 1 L. 397; 4 L. 453; 5 L. 46; 7 L. 278; 9 L. 143; 9 L. 731; 10 L. 507; 21 L. 321; 21 L. 550; 32 L. 208; 49 L. 233; 54 L. 763; 69 L. 682. Same — As against persons not in being.— See 8 L. N. S. 70. Same — Bar of other remedies, effect of to prevent a sale of property under a power in. — See 13 L. N. S. 1210. Same — By exercise of power of sale. — See 92 A. S. 573. Same — By power of sale, strict foreclosure, as to generally, see 8 Lr. 50; 20 L. 733; 70 L. 135-145. Same — Deficiency on, judgment and execution for. — See 4 L. 205; 50 L. 583. Same — Does homestead exemption attach to the surplus upon sale under a lien paramount to the homestead right. — See 18 L. N. S. 491. Same— Does last payment on a past-due debt secured by mortgage, which debt * subsequently becomes barred, fix the period from which the limitation applicable to the mortgage is to be computed. — See 11 L. N. S. 744. 1458 Tit.XIV,ch.II,art.I.] MORTGAGES. § 2920 Same — Effect of acceleration provision in mortgage to start the statute of limitations running-. — See 12 L. N. S. 1190. Same — Effect of by taking possession before all of mortgage debt due. — See 3 L. N. S. 343. Same — Effect on of debt becoming barred by statute of lim- itations, under conveyance absolute on its face but intended as a mortgage. — See 11 L. N. S. 825. Same — Enjoining sale — Pending bankruptcy. — See 2 L. N. S. 560. Same — Same — Under power in mortgage against which the statute of limitations has run. — See 6 L. N. S. 510. Same — Entry by mortgagee by virtue of interest in the prop- erty, effect to enable him to hold as a mortgagee in posses- sion. — See 16 L. N. S. 151. Same — Litigation of paramount titles in suits for. — See 68 A. S. 354. Same — Of subsequent, effect of upon prior. — See 80 A. D. 714. Same — Power of equity, wliere mortgage does not convey" title, to impound rents and profits of mortgaged property pend- ing foreclosure. — See 7 L. N. S. 1001. Same — Proceedings on. — See 37 L. 737-759. Same — Redemption from. — See "Redemption," this note. Same — Removal, for separable controversy, of proceedings to foreclose. — See 5 L. N. S. 72. Same — Riglit of assignee to enforce option to declare entire mortgage due for default of payment. — See 15 L. N. S. 590. Same — Right of tenant in common who pays mortgage debt to enforce against cotenants. — See 10 A. C. 282. Same — Sale under. — See "Sale under foreclosure," this note. Same — Upon land in another state. — See 4 L. N. S. 986. Same — Waiver of junior lien by failure to assert in. — See 68 L. 323. Same — When right of barred. — See 7 A. C. 189; 8 A. C. 1160; 8 A. C. 1173. Same — Same — Absence of mortgagor from state suspends run- ning of limitation against foreclosure. — See 8 A. C. 1173. Same — Same — Injunction to restrain sale of property under mortgage on ground that debt secured is barred by statute. — See 7 A. C. 1189. Same — Who may enforce and parties to action. — See 1 L. 334; 5 L. 291; 24 I.. 320! 64 L. 618. Foreign corporation, rlglit to take mortgage on property In the state. — See 24 L. 328. Forfeiture, validity of contract providing for. — Sio Kerr's Cyc. C. C. § 2889 and note. Form of mortgage. — See Kerr's Cyc. C. C. § 294S and note. "Grant" defined. — See Kerr's Cyc. C. C. § 1053 and note; 4 W. & P. 3152. 1459 § 2920 CIVIL CODE. [Div.III,Pt.IV. Growing crop — Lien of mortgage on. — See Kerr's Cyc. C. C. § 2972 and note. Homestead exemption, does it attach to the surplus upon fore- closure of a lien paramount to the homestead right. — See 18 L. N. S. 491. Illegal bonus for discharge of, payment of pending foreclosure as duress. — See 2 L. N. S. 574. Impairment of value of security, rights and remedies of mortgagees against. — See 43 A. S. 432. Injunction to restrain sale of property under mortgage of trust deed on ground that action on debt secured is barred by statute of limitations. — See 7 A. C. 189. Insolvency statutes, effect of upon mortgage preferring cred- itors. — See 37 L. 465. Insurance — On mortgaged premises, application of proceeds of.— See 118 A. S. 968. Same — Secured by mortgagee to protect his own interests, interest of mortgagor in. — See 11 L. N. S. 143. Same — Proceeds of, where loss occurs after foreclosure sale but during period of redemption. — See 6 L. N. S. 448. Interest of mortgagor in insurance secured by mortgagee to protect his own interests. — See 11 L. N. S. 143. Is debt upon property purchased by municipality without assuming payment, is it part of a municipal indebtedness. — See 3 L. N. S. 684. Junior lien, waiver by failure to assert in foreclosure pro- ceedings. — See 68 L. 323. Lease assigned as security. — See Kerr's Cyc. C. C. § 2947 and note par. 10. Lien accessory to obligation to be performed. — See Kerr's Cyc. C. C. § 2909 and note. Lien of.— See 4 A. C. 314; 5 A. C. 899. Same — Continuing lien after payment to secure another debt. —See 4 A. C. 316. Same— Effect on of sale under the mortgage. — See 58 A. D. 569. Liens generally. — See Kerr's Cyc. C. C. ,§§ 2872-2813 and notes; also note § 2872, ante. Limitation of action to foreclosure. — See 10 L. 507. Limitations, statute of, effect of upon. — See 95 A. S. 664. Married woman, right to redeem mortgaged premises during life of husband.— See 6 A. C. 475. Merger of in the fee. — See 99 A. S. 160. Mistake, discharge of mortgage by, right to reinstatement. — See 55 L. 788. Mortgagee — Actions by against third persons. — See 109 A. S. 430. Same — Duty of to hold proceeds of insurance and apply to indebtedness as it falls due. — See 10 L. N. S. 1166. 1460 Tit.XIV,ch.II,art.I.] MORTGAGES. § 2920 Same— Ejectment by.— See 18 L. 788. „ . 974- T? L 290 Same— Entitled to possession when.— See 7 L. 274 13 L. 290. Same-Injunction in favor of against execution sale.-See 30 "^'sime-ln possession-Attornment of tenant tc-See 8 K 568. Same— Same— Duties and liabilities of.— See 4 A. S. 69. Same— Same— Rights of.— See 7 L. 276 277 Same-Limitation of.-See 1 L. 397; 6 L. 610. Same— Protection of rights of. — See 7 L. bil. Same— Remedy for injury to security.— See 1 L- 366 Same— Right of on condemnation of premises.— See 18 U lid. Same-Right of to benefit of insurance to take in mortgagors name.— See 25 L. 305. o t fi78 Same— Senior, rights to disbursements.— See 9 L. 678^ Same-Subrogation of junior to rights of prior.-See 5 L. ''skm'e-Who has paid taxes, right to maintain independent acUo" against mortgagor for reimbursement before or after foreclosure of mortgage.— See 10 L. N. S. 6<9. ..^li^itv Mortgages to secure future advances-Requisites and ^alidiU of See 20 A. D. 658-663. Mortgagor-Effect of stipulation that he shall become tenant. —See 49 L. 435. . t fi^n Same— In possession— Rights of.-See , L. 630. Same— Of mining claim, right to relocate same for his own 'Zlt-ll'^ll o, "'sale o. contract w,t„ re,e.e„c, to ,n„r.- p-ae-in°- nronertv free from mortgage. — See 8 L,. M. b- *"*• ^tameruight'o engage in competing business after sale of business and good-will on foreclosure.-See 19 K N. S. ^6d Name of instrument inimaterial.-See Kerr s Cyc. C. C. § -948 '"Naturr;:i-iii\y and effect of --tgage-As to generally, see 4 L 427- 7 L. 273, 275; 9 L. 544; 14 L. 55; 38 L. 562; <0 L. 317. Necessity for sales under powers to be for reasonable price.- See 103 A. S. 51. . . New, when may be enforced as a continuation of the Hen ot prior mortgages. — See 5 A. S. 705. ^ . , +• „ t^ ov<»rrise Notice of mortgagee to mortgagor of nitention to exercise power of sale in mortgage, necessity of.-See 11 A. C. 170 Of after-acquired property and of property having only a potential existence.-See 46 A. D. 712; 109 A. S. 510 Of railways, subsequent claims which take precedence of.— See ^Vtrol evidence to show absolute deeds to be.-See 15 A D. 47 Partner— Assumption of individual debts of partner b> mort gage of partnership property.— See 29 L. 692 lame— Power to give on partnership real estate.-See 28 L. 95. 146X § 2920 CIVIL CODE. [Div.III,Pt.IV. Same — Surviving-, power to give on real estate. — See 28 L. 134. Payment, discharge, and extinction, as to generally, see 9 A. C. 1193; 10 A. C. 278; 1 L. 346; 5 L. 289; 5 L. 520; 7 L. 279; 10 L. 537; 13 L. 298; 21 L. 550; 23 L>. 131; 29 L. 120; 35 L. 294; 57 L. 333, 340. Same — By extension of time when. — See 55 L. 673-688. Same — By tender, unaccepted. — See 33 L. 231-235. Same — Right to reinstatement of mortgage released or dis- charged by mistake.— See 58 L. 788-807. Payment extinguishes. — See 9 A. C. 1193; 10 A. C. 278; also "Payment, discharge and extinction," this note. Payment of illegal bonus for discharge of, pending foreclosure, as duress.— See 2 L. N. S. 574. Person improperly omitted as party to foreclosure proceed- ings, right to redeem. — See 4 A. C. 848. Personal liability for indebtedness — As to, generally, see 6 A. C. 549; 7 A. C. 364; 9 A. C. 255. Same — By extension of time to grantee who has assumed mortgage debt. — See 9 A. C. 259. Same^ — Effect on, of release by mortgag-ee of mortg-aged premises to grantee or mortgag-or. — See 6 A. C. 550. Personal property which may be mortgaged. — See Kerr's Cyc. C. C. § 2955 and note. Pledge in case possession is transferred. — See Kerr's Cyc. C. C. § 2924 and note Pledges.— See Kerr's Cyc. C. C. §§ 29S6-3011 and notes; also note § 2986, post. Possession — ^Mortgagee, by, authorized if he deems himself unsafe. — See 51 A. R. 805, 809. Same — Mortgagee not entitled to. — See Kerr's Cyc. C. C. § 2927 and note. Power of trustee to mortgage trust property. — See 9 A. C. 643; 10 A. C. 255. Pre-existing' debt as consideration for mortgage as against other creditors or equities. — See 33 L. 305-311. Preference by, as an assignment for creditors. — See 37 L. 337. Priority — Between included mortgage — And judgment. — See 10 L. 411. Same — Included mortgage — As against purchaser at judicial sale. — See 21 L. 38. Same — Of claims for labor over, under statutory provision. — See 2 L. N. S. 615. Same — Of railroad mortgage over other liens. — See 9 L. 143. Same- — Subsequent mechanic's lien. — See 14 L. 305. Purchase at tax sale by or in the interest of mortgagor, guarantor of mortgage indebtedness, or purchaser of equity of redemption, effect of. — See 16 L. N. S. 121. Purchaser of property subject to — -When becomes liable for the payment of the mortgage debt. — See 62 A. D. 141. 1462 Tit.XIV,ch.II,art.I.] MORTGAGES. § 2920 Same — When may not contest validity of. — See 22 A. R. 290. Question of fact as to what constitutes mortgage. — See Kerr's Cyc. C. C. § 2924 and note pars. 40, 41. Railroad mortgage — As to what property included in. — See 9 L. 140, 142, Same — After-acquired property which passes by. — See 99 A. S. 252. Same — Lands, income and earnings under. — See 6 L. 566; 9 L. 142. Same — Priority of over other liens. — See 9 L. 143. Same — Rails and other permanent fixtures annexed after exe- cution of. — See 66 L. 44. Railway, after-acquired property which passes by mortgage. — See 99 A. S. 252; also "Railroad mortgage," this note. Real property which may be mortgaged. — See Kerr's Cyc. C. C. § 2947 and note. Receiver — Appointment of on foreclosure of mortgage. — See 1 L. 397. Same — Mortgagee, when entitled to collect rents. — See 27 A. S. 793. Same — to take charge of mortgaged property, when may be appointed. — See 72 A. S. 74. Redemption — Allowance for improvements upon. — See 9 L. 676. Same — Equity of. — See "Equity of redemption," this note. Same — Impairment of obligation of contract by change of law as to. — See 31 L. 721. Same— From Hen. — See Kerr's Cyc. C. C. U 2903-2905 and notes. Same — Proceedings on. — See 9 L. 676. Same — Right of junior incumbrancer to redeem. — See 9 L. 677. Same — Right to redeem. — See 37 L. 752. Same — Statute of limitations, applicability to suit to redeem. — See 10 L. 511. Same — Time allowed for. — See 9 L. 677. Remedies of mortgagee to reach surplus proceeds after judicial or other sale. — See 88 A. S. 359. Remedy of one improperly omitted as party to foroclo.sure proceedings. — See 4 A. C. 848. Removal of mortgaged proix-rty into another state. — See 70 A. D. 67. Rents an income, after foreclosure decree and before pur- chaser's title is perfected, right to. — See 1 L. N. S. 1079. Rents, mortgagee, when entitled to. — See 27 A. S. 793. Revival of — Or subrogation to, discharged mortgage in favor of assignee in equity of redemption, who pays it, as against junior lien.— See 16 L. N. S. 470; also 12 A. D. 222. Same — When satisfied by mistake. — See 5 A. S. 703. Revivor of.— Sec 12 A. D. 222; 16 L. N. S. 470. Right of assignee as against subsequent bona fide purchasers 1463 § 2920 CIVIL CODE. [Div.III.Pt.IV. or incorporators relying upon apparent discharge of the mort- gage by mortgagee. — See 15 L. N. S. 1025. Right of foreclosure barred when. — See 7 A. C. 189; 8 A. C. 1160; 8 A. C. 1173. Same — Absence of mortgagor from state suspends running of statute. — See 8 A. C. 1179. Same — Injunction against sale of property under mortgage on ground that debt secured is barred by statute. — See 7 A. C. 1189. Righi of married woman to redeem mortgaged premises dur- ing life of husband. — See 6 A. D. 475. Right of one cotenant who pays mortgage to be subrogated to the rights of mortgagee as against other cotenants or his privies. — See 8 L. N. S.. 559. Right of subsequent creditors, to question corporate mortgage in favor of, or for the benefit of, director, in absence of fraud. — See 12 L. N. S. 825. Right of tenant for years to redeem premises from mortgage. — See 4 A. C. 807. Right to cut timber on mortgaged land. — See 3 L. 607. Right to mortgage privilege to use streets for quasi-public purposes. — See 47 L. 87. Rights and liabilities of mortgagee. — See 3 A. C. 1128. Same— Application of rents and profits in hands of, in posses- sion.— See 3 A. C. 1132. Rights and liabilities of parties, as to, generally, see 1 L. N. S. 1036; 8 L. N. S. 404; 10 L. N. S. 679; 10 L. N. S. 1166; 11 L. N. S. 143; 14 L. N. S. 459; 16 L. N. S. 121; 18 L. N. S. 197. Sale by mortgagor — Assumption of payment, effect of to create personal liability. — See 6 L. 611. Same — Contingency of liability as affecting presentation of claim against decedent's estate. — See 58 L. 89. Same — Debt of personal obligation of grantee. — See 8 L. 316. Same — ^Grantee estopped to deny validity of mortgage. — See 8 L. 316. Same — Land liable to mortgage debt, inverse order of aliena- tion.— See 5 L. 282, 286. Same — Liability of purchaser for mortgage debt. — See 5 L. 276, 281; 6 L. 612; 7 L. 33; 8 L. 315. Same — Mortgagee as purchaser. — See 7 L. 279. Same — Obligations of and remedies against grantee assuming payment of mortgage. — See 5 L. 279; 8 L. 315. Same — Release of grantee by mortgagor. — See 6 L. 612. Same — Right of mortgagee to maintain personal action against grantee assuming payment. — See 6 L. 611; 25 L. 275. Same — Subrogation of mortgagor on payment of debt after conveyance. — See 2 L. 289. Sale of personal property — Lien for price. — See Kerr's Cyc. C. C. § 3049 and note. 1464 ^ TitXIV.ch.II.art.I.] MORTGAGES. § 2920 Sale on foreclosure — Of property and good-will, right of mort- gagor after, to engage in competing business. — See 19 L. N. S. 765. Same — Validity and effect of. — See 37 L. 751. Sale under foreclosure of — Does water-right used in connec- tion with premises prior to its acquirement pass on foreclosure. —See 15 L. N. S. 359. Same — En masse by sheriff of directed to sale in parcels, separately mortgaged, effect of. — See 15 L. N. S. 549. Same — Right of redemption as affected by deed delivered in escrow as further security for debt. — See 2 L. N. S. 628. Same — Right of wife during husband's lifetime to redeem from mortgage on his real property. — See 3 L. N. S. 1068. Same — Right to proceeds of insurance where loss occurs after foreclosure sale but during period of redemption. — See 6 L. N. S. 448. Same — Right to rents or income after foreclosure decree and before title perfected. — See 1 L. N. S. 1079. Same — Widow's right to redeem, because of her dower inter- est.— See 4 L. N. S. 1039. Sale under mortgage containing power of sale "at court- house," proper place of sale under, where courthouse is removed or destroyed or there is more than one. — See 11 A. C. 166. Set-off in foreclosure. — See 21 L. 321. Special lien of mortgage. — See Kerr's Cyc. C. C. § 2923 and note. Specific performance of contract to give. — See 6 L. N. S. 585. Statute of limitations, absence from the state of the mort- gagor, effect of upon. — See 60 A. S. 205. Strict foreclosure, as to generally, see 8 L. 50; 20 L. 370; 70 L. 135-145. Subrogation to benefits of superior lien. — See Kerr's Cyc. C. C. § 2904 and note par. 2. Subsequent creditors, riglit of to question corporate mortgage in favor of, or for the benefit of, directors, in absence of fraud. —See 12 L. N. S. 821. Sufficiency of description in. — See 12 L. 177. Surplus or foreclosure sale, after mortgagor's death, is it to bo deemed real or personal property. — See 19 L. N. S. 723. Tacking taxes to debt. — See 5 L. 293. Taxation of, as to generally, see 2 I... 350; 2 L. 801; 16 L. 59, 60: 16 L. 730; 60 L. 102. Taxes paid by mortgagee, right to maintain independent action against mortgagor for reimbursement before or after foreclosure of mortgage. — See 10 L. N. S. 679. Tenant for years, riglit to redeem premises from mortgage. — See 4 A. C. 807. 1465 § 2920 CIVIL CODE. [Div.III,Pt.IV. Tenant in common, rig'ht of, who pays mortgage debt to enforce mortgage against cotenant. — See' 10 A. C. 822. Tender extinguishes when. — See 7 A. C. 116; 8 A. C. 361; 10 A. C. 278. Same — After maturity and before foreclosure, effect on mort- gage lien. — See 8 A. C. 363. Same — By whom must be made in order to extinguish lien. — See 7 A. C. 1065. Tendor or payment after breach of condition. — See 29 A. R. 41. Terms of redemption, as to, generally, see 6 A. C. 471. Title not conveyed by mortgage. — See Kerr's Cyc. C. C. § 2924 and note pars. 45-50. To secure future accounts. — See 10 A. D. 108. To secure future advances. — See 20 A. D. 658; 116 A. D. 690. To secure several notes, which entitled to precedence of pay- ment. — See 38 A. D. 440. Transactions, mortgages or sales, which. — See 3 A. C. 407. Transfer in trust. — See Kerr's Cyc. C. C. § 2924 and note par. 53. Trustee, power of to mortgage trust estate for purpose of making improveinents so as to render it productive. — See 7 L. N. S. 263. Validity of— As to generally, see 6 L. 565; 11 L. 846; 14 L. 359; 24 L. 328; 28 L. 95; 28 L. 134; 29 L. 692; 33 L. 761; 37 L. 337; 37 L. 465; 39 L. 423; 47 L. 87; 67 L. 122. Same — Agreement to mortgage crops to be planted. — See 5 A. C. 400. Same — Upon public land executed by claimant under the homestead act prior to patent or final proof. — See 6 L. N. S. 934. Same — Within four months before bankruptcy, pursuant to executor's agreement antedating that period. — See 17 L. N. S. 939. Vendee of mortgagee assuming mortgage debt, rights and liabilities of.— See 4 L. N. S. 666; 7 L. N. S. 1120; 10 L. N. S. 857. Water-right used in connection with land mortgaged prior to its acquirement under sale on foreclosure, does it pass with the land. — See 15 L. N. S. 359. What constitutes and validity of. — See 2 L. N. S. 628; 6 L. N. S. 934; 7 L. N. S. 263; 12 L. N. S. 825; 13 L. N. S. 298; 13 L. N. S. 725; 17 L. N. S. 939; 5 W. & P. 4596. Widow, right to redeem from mortgage because of her inter- est in estate. — See 4 L. N. S. 1029. Wife, right of to redeem from mortgage on husband's real property, during his lifetime. — See 3 L. N. S. 1068. Writing and other formalities required. — See Kerr's Cyc. C. C. § 2922 and note. 1466 Tit.XIV,ch.II,art.I.] TO be IN writing. §§2921,2922 § 2921. PROPERTY ADVERSELY HELD MAY RE MORT- GAGED. A mortgage may be created upon propertj^ held adversely to the mortgager. History: Enacted March -21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to mortg-ages, see note § 2920, ante. Owner ousted of possession may transfer. — See Kerr's Cyc. C. C. § 1047 and notes. Real property which may be mortgaged. — See Kerr's Cyc. C. C. § 2947 and notes. § 2922. TO BE IN WRITING. 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. Hi,Titory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 31 pars, annotation. 53 C. 677, 680, 65 C. 512, 516, 4 P. 531 (applied); 5 P. 101 (cited — agreement for lien on real estate must be in writing:); 56 C.'342, 344 (applied); 57 C. 467, 471 (construed); 58 C. 147. 152 (referred to erroneously); 68 C. 52, 53, 8 P. 627 (applied): 74 C. 345, 350, 16 P. 189, 191 (referred to); 75 C. 464. 488, 17 P. 246 (applied); 84 C. 201; 205, 23 P. 1081, 1082 (referred to as inapplicable); 85 C. 280, 288, 24 P. 743, 745 (referred to as inapplicable); 112 C. 355, 366, 44 P. 729 (cited); 117 C. 412, 415. 49 P. 414 (cited); 120 C. 220, 223, 224, 65 A. S. 179, 52 P. 583 (construed); 52 P. 836, 837 (what letter does not renew or extend mortgage lien); 122 C. 413, 418, 419, 420, 55 P. 145 (cited); 126 C. 467, 469, 77 A. S. 192, 58 P. 907 (cited); 128 C. 549, 551, 61 P. 666 (cited); 129 C. 415, 417, 79 A. S. 123, 61 P. 1107 (construed); 134 C. 599, 600, 66 P. 869 (cited); 137 C. 384. 389, 70 P. 223 (applied); 140 C. 687, 689, 74 P. 291 (applied); 144 C. 776, 783, 78 P. 254 (cited); 147 C. 384, 388, 81 P. 1077 (referred to); 151 C. 723, 727, 91 P. 616 (what instruments constitute renewal of note and mortgage). As to many miscellaneous matters as to mortgages, see note § 2920, ante. As to mortgagee's riglit to possession, see Kerr's Cyc. C. C. § 2927 and note. Equitable mortgages. — See 4 A. S. 696-708. Form of mortgage. — See Kerr's Cyc. C. C. § 2948 and note. Frauds, statute of. — See Kerr's Cyc. C. C. § 1624 and note. Limitations, statute of — Extinguishment of lien. — See Kerr's Cyc. C. C. § 2911 and note. 1467 §§ 2923, 2924 CIVIL CODE. [Div.III.Pt.IV. Oral mortg-ag-es. — See 1 A. S. 236, 237. "Specific property." — See Kerr's Cyc. C. C. § 2920 and note par. 50. §2923. LIEN OF jf MORTGAGE, WHEN SPECIAL. The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of possession. Hista.ry: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 11 F. 253, 259 (cited). As to many miscellaneotis matters as to mortgages, see note § 2920, ante. Accessory to obligation to be performed. — See Kerr's Cyc. C. C. § 2909 and note. Chattel interest of mortgagee.- — See Kerr's Cyc. C. C. §2924 and note par. 46. Effect of sale under mortgage upon lien. — See 58 A. D. 569- 571. Extinction of liens. — See Kerr's Cyc. C. C. §§ 2909-2913 and notes. Growing crop — Lien of mortgage on. — See Kerr's Cyc. C. C. § 2972 and note. Liens generally. — See Kerr's Cyc. C. C. §§ 2872-2913 and notes. Mortgager may give mortgagee right of possession. — See Kerr's Cyc. C. C. § 2927 and note. Possession — Mortgagee not entitled to. — See Kerr's Cyc. C. C. § 2927 and note. Primary purpose of mortgage. — See Kerr's Cyc. C. C. § 2920 and note par. 43. Prior lien — Right of holder of special lien upon payment of. — ^See Kerr's Cyc. C. C. § 2876 and note. Property to which lien attaches. — See Kerr's Cyc. C. C. § 2926 and note. Redemption from lien.- — See Kerr's Cyc. C. C. §§ 2903-2905 and notes. Special lien — What is. — See Kerr's Cyc. C. C. § 2875 and note. Special security is obtained by possession. — See Kerr's Cyc. C. C. § 2927 and note par. 18. Waste impairing lien. — See Kerr's Cyc. C. C. § 2929 and note. § 2924. TRANSFER, WHEN MORTGAGE, WHEN PLEDGE. Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of 1468 Tit.XIV,ch.II,art.r.] TRANSFER. CHARACTER. § 2924 personal property it is accompanied by actual chan.^e of pos- session, in which case it is to be deemed a pledge. Hlmtory: Enacted March 21, 1872; amended Marcli 30, 1874, Code Amdts. 1873-4. p. 260. See Kerr's Cyc. C. C. for .53 pars, annotation. 58 C. 11, 15 (cited): 59 C. 107, 112 (applied (; 1 C. 513, 514. 2 P. 399, 400 (cited): 5 P. 101 (cited — agreement for lien on real estate must be in writing): 71 C. 407, 411. 12 P. 410, 412 (cited); 74 C. 250, 254, 5 A. S. 435, 14 P. 369. 371, 15 P. 773 (cited): 80 C. 348, 352. 22 P. 200 (cited); 91 C. 458, 461, 27 P. 763, 764 (cited); 100 C. 250, 254. 34 P. 696 (cited): 105 C. 467. 469. 470, 38 P. 1107, 1109 (construed with §2955); 106 C. 673. 680. 39 P. 1071 (cited); 107 C. 144, 148, 40 P. 37 (cited); 121 C. 379. 384, 53 P. 813 (cited); 121 C. 539. 542, 54 P. 83 (cited); 123 C. 689. 694. 56 P. 604 (cited); 126 C. 600, 604, 59 P. 130 (applied); 127 C. 254, 256, 59 P. 597 (cited): 128 C. 293, 300, 60 P. 769 (cited) ;' 129 C. 160. 163. 61 P. 785 (cited); 135 C. 277, 279. 67 P. 129 (applied): 144 C. 776. 7S3. 78 P. 254 (cited); 147 C. 384. 389. 81 P. 1077 (exception refers only to what trusts); 148 C. 650, 653. 655, 84 P. 186 (what is more than a mortgage); 150 C. 185, 190, 88 P. 825 (reliance upon possession as pledge negatives con- ception of chattel mortgage). As to many miscellaneous ni;itter.«! as to mortgages, st-e note « 2920, ante. Agreement to rcconvey. — See 17 A. D. 300. .\ssignment of contract of purchase as erjultable mortgage. — See 4 A. S. 703. 704. Rurden of proof. — See 50 A. D. 196. 197. Deed absolute construed .-is mortgage, when. — See 65 A. S. 186. Deed absolute, when not <'onstrued as mortgage. — See 1 1*. 240, 241. Defeasance may be proved. — See Kerr's Cyc. C. C. S 2925 and note. D.'fectlve execution of mortgage. — See Kerr's Cyc. C. C. | 2922 and note par. 7. Delivery of defeasance necessary. — See Kerr's Cyc. C C. S 2925 and note par. 7. Distinction between deed of trust and moriirnire. — .<>.■.• Kerr's Cyc. C. C. i 2932 and note pars. 5. 6. Equitable mortgages. — See 4 A. S. 696-70S. Kstoppel to Insist upon defeasance. — See Kerr's *^y.-. •'. C $ 2925 and note par. 9. Fi)rm of instrument immaterl.il. — See Kerr's Cyc. C. C. { 2948 and note par. 7. Form of mortgage. — See Kerr's Cyc. C. C. 5 294S and note. 1469 § 2925 CIVIL CODE. [Div.III,Pt.IV. Intent of parties to be considered. — See 42 A. S. 273. Law and equity have same rule. — See 17 A. D. 302, 303. Lease assigned as security. — See Kerr's Cyc. C. C. § 2947 and note par. 10. Lien or contract for lien transfers no title. — See Kerr's Cyc. C. C. § 2888 and note. Merger of mortgage in judgment of foreclosure. — See 32 A. R. 133, 134. Morte-agee cannot recover in ejectment. ^See 34 A. D. 213. "Mortgage" does not include pledge.— See Kerr's Cyc. C. C. § 2920 and note par. 37. Mortgagee may purchase from mortgager. — See 44 A. S. 699, 700. Name of instrument immaterial. — See Kerr's Cyc. C. C. § 2920 note par. 38; § 2948 note par. 7. Parol evidence to show that deed absolute is mortgage. — See Kerr's Cyc. C. C. § 2924, note pars. 23, 36. Specific performance of contract to reconvey. — See Kerr's Cyc. C. C. § 2925 and note par. 15. §2925. TRANSFER MADE SUBJECT TO DEFEASANCE MAY BE PROVED. 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 mortgage, be proved (except as against a subsequent purchaser or encumbrancer for value and without notice), though the fact does not appear by the terms of the instrument. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 58 C. 11, 16 (cited); 64 C. 513, 514, 2 P. 399, 400 (cited); 71 C. 407, 411, 12 P. 410, 412 (cited); 88 C. 319, 325, 26 P. 180, 181 (cited); 91 C. 468, 461, 27 P. 763, 764 (cited); 119 C. 18, 21, 50 P. 925 (referred to); 123 C. 689, 694, 56 P. 604 (cited); 127 C. 254, 256, 59 P. 597 (cited); 144 C. 130, 132, 77 P. 831 (cited). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Cognate section. — See Kerr's Cyc. C. C. § 2924 and note. Deed absolute and contemporaneous defeasance constitute mortgage. — See 42 A. S. 272. Deed absolute intended as mortgage. — See Kerr's Cyc. C. C. § 2924 and note par. 5. Evidence to show that deed absolute is mortgage. — See Kerr's Cyc. C. C. § 2924 and note pars. 23-36. Question of fact as to what constitutes mortgage. — See Kerr's Cyc. C. C. § 2924 and note pars. 40, 41. 1470 Tit.XIV.ch.II.art.L] LIEN ON WHAT. § 2926 Recordation of defeasance necessary, wlien. — See Kerr's Cyc. C. C. § 2950 and note. Requisites of defeasance. — See 17 A. D. 303, 306. Several contracts taken together, when. — See Kerr's Cyc. C. C. § 1642 and note. Title not conveyed by deed absolute intended as mortgage. — See Kerr's Cyc. C. C. § 2924 and note pars. 45-50. §2926. M()I{T(iJA(;E, OX WHAT A LIEN. A mortgage is a lien upon everything that would pass by a grant of the property. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 21 pars, annotation. 80 C. 245, 252, 13 A. S. 147. 22 P. 184, 186 (applied): 80 C. 348, 352, 22 P. 200, 201 (cited); 126 C. 600, 605, 59 P. 130 (cited). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Accessory to obligation to be performed. — See Kerr's Cyc. C. C. § 2909 and note. Appurtenances. — See Kerr's Cyc. C. C. § 662 and note. Effect of sale under mortgage upon lien. — See 58 A. D. 569- 571. Extinction of liens. — See Kerr's Cyc. C. C. §§2909-2913 and notes. Growing crop — Lien of mortgage on. — See Kerr's Cyc. C. C. § 2972 and note. Liens generally. — See Kerr's Cyc. C. C. §§ 2872-2913 and notes. Limitations, statute of — Extinguishment of lien. — See Kerr's Cyc. C. C. § 2911 and note. Marshaling assets — Order of resort to different funds. — Sec Kerr's Cyc. C. C. § 2899 and note, § 3433 and note. Mortgages upon buildings on leased premises. — See 21 L. 347. 349. Possession by mortgagee authorized if he deems liimself unsafe, etc. — See 51 A. R. 805, 809. Possession — Mortgagee not entitled to. — Soo Kerr's Cyc C. C. § 2927 and note. Primary purpose of mortgage. — See Kerr's Cyc. C. C. S 2920 and note par. 43. Prior lien — Riglit of liolder of^sperial liiii upon payment of. — See Kerr's Cyc. C. C. § 2876 and note. Redemption from lien. — See Kerr's Cyc. C. C. §§ 2903-2905 and notes. Waste impairing lien. — See Kerr's Cyc. C. C. § 2929 and note. 1471 §§ 2927, 2928 CIVIL CODE. [Div.III,Pt.IV. §2927. MORTGAGE DOES NOT ENTITLE MORTGAGEE TO POSSESSION. A mortgage does not entitle the mortgagee to the possession of the property, unless authorized by the express terms of the mortgage; but after the execution of the mortgage the mortgager may agree to such change of pos- session without a new consideration. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 22 pars, annotation. 72 C. 307, 309, 13 P. 866 (cited); 80 C. 323, 326, 21 P. 4, 5, 22 P. 186, 549 (cited); 80 C. 348, 353 (applied but erroneously cited as § 292), 22 P. 200, 201 (correct citation); 88 C. 437, 440, 22 A. S. 314, 26 P. 203, 204, 13 L. 137 (cited); 96 C. 21, 32, 30 P. 957 (applied); 106 C. 673, 680, 39 P. 1071, 1072 (applied); 109 C. 360, 362, 365, 42 P. 35 (cited); 112 C. 180, 187, 53 A. S. 201, 40 P. 104; 44 P. 484 (cited); 117 C. 412, 416, 49 P. 414 (cited); 121 C. 543, 544, 54 P. 85 (cited); 127 C. 648, 652, 60 P. 434 (cited); 128 C. 489, 491, 61 P. 84 (cited); 11 F. 253, 260 (cited); 6 C. A. 455, 458, 92 P. 393 (construed with § 2920 — ^effect of mortg-age as to title or possession). As to construing deed absolute to be mortgage, see Kerr's Cyc. C. C. § 2924 and note par. 5. As to many miscellaneous matters as to mortgages, see note § 2920, ante. As to mortgagee having no title, see Kerr's Cyc. C. C. § 2924 and note par. 45. Common-law vadium vivum. — See Kerr's Cyc. C. C. § 2920 and note par. 8. Compensation of lienor for trouble and expense. — See Kerr's Cyc. C. C. § 2892 and note. Duties and liabilities of mortgagee in possession. — See 31 A. S. 180, 181. Ejectment is not maintainable by inortgagee. — See Kerr's Cyc. C. C. § 2924 and note pars. 51, 52. Growing crops. — See Kerr's Cyc. C. C. § 2926 and note par. 10. Hypothecation and mortgage of land distinguished. — See Kerr's Cyc. C. C. § 2920 and note par. 32. Possession of mortgagee authorized if he deems himself un- safe, etc. — See 51 A. S. 805, 809. Rights and liabilities of mortgagee in possession. — See 64 A. S. 289. Special lien of mortgage. — See ante § 2923. §2928. MORTGAGE NOT A PERSONAL OBLIGATION. A mortgage does not bind the mortgager personally to per- 1472 1 Tit.XlV,ch.II,art.I.] SUBSEQUENT TITLE. §§2929,2930 form the act for the performance of which it is a security, unless there is an express covenant therein to that effect. Hlwtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 19 pars, annotation. 57 C. 641, 642 (construed); 66 C. 97, 98, 4 P. 1062 (cited); 101 C. 415, 419, 35 P. 1027 (applied); 127 C. 202, 204, 59 P. 585 (cited); 137 C. 253, 255, 70 P. 89 (applied). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Amount for which mortgage given. — See Kerr's Cyc. C. C. § 2920 and note par. 4. Cognate section with reference to liens generally. — See Kerr's Cyc. C. C. § 2890 and note. Creditor entitled to benefit of securities held by surety. — See Kerr's Cyc. C. C. § 2854 and note. Enforcement of contract for benefit of third person. — See Kerr's Cyc. C. C. § 1559 and note. Independent action at law to recover debt not maintainable. — See Kerr's Cyc. C. C. P. § 726 and note. Lien accessory to obligation to be performed. — See Kerr's Cyc. C. C. § 2909 and note. § 29*29. WASTE. No person whose interest is subject to the lien of a mortgage may do any act which will substan- tially impair the mortgagee's security. HiNtory: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 6 pars, annotation. 80 C. 245, 246, 13 A. S. 147, 22 P. 184 (cited). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Damages for injuries done after foreclosure sale and before delivery of deed. — See Kerr'n Pocket C. C. P. $ 746. Injunction pendente lite. — See Kerr's Cyc. C. C. P. 5 74') and note. Rights or remedies of mortgagee against Inipnirment of security.— See 43 A. S. 432-436. §29.10. SIBSEQIEMLY A(yilKEI) TITLE IMKKS TO MORTGAGEE. Title acquired by the mortgager subsequent to the execution of the mortgage, inures to the mortgagee as K.-rr's C. C— 47 1473 § 2931 CIVIL CODE. [Div.III,Pt.IV. security for the debt, in like manner as if acquired before the execution. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 260. See Kerr's Cyc. C. C. for 15 pars, annotation. 52 C. 334, 335, 336 (applied); 67 C. 275, 279, 7 P. 693 (applied); 98 C. 514, 518, 33 P. 486, 487, 488 (cited); 138 C. 682, 683, 72 P. 343 (title to homestead, acquired by wife, after void mortgage by her, and subsequent to mortgage, does not inure to mortgagee as security for debt); 144 C. 144, 146, 77 P. 885 (applied). As to many miscellaneous matters as to mortgages, see note § 2920, ante. After-acquired property. — See Kerr's Cyc. C. C. § 2926 and note par. 2. After-acquired title. — See 76 A. D. 458; 79 A. D. 192; 89 A. D. 206, 207. Cognate section with reference to transfers generally. — See Kerr's Cyc. C. C. § 1106 and note. Encumbrances by pre-emptors and other claimants of public land. — See 52 A. S. 248, 254. Mortgage of after-acquired property. — See 46 A. D. 712. Parol evidence to indemnify after-acquired property mort- gaged. — See Kerr's Cyc. C. C. § 2947 and note. § 2931. FOEECLOSURE. A mortgagee may foreclose the right of redemption of the mortgager in the manner pre- scribed by the code of civil procedure. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 144 C. 329, 333, 77 P. 937 (cited). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Actions for foreclosure of mortgages. — See Kerr's Cyc. C. C. P. §§ 726-729 and notes. Appeal bond when judgment is for sale of mortgaged prem- ises. — See Kerr's Cyc. C. C. P. § 945 and note. Decedent's estate — Actions against. — See Kerr's Cyc. C. C. P. § 1500 and note. Effect of sale under mortgage upon lien. — See 58 A. D. 569-571. Injunction pendente lite. — See Kerr's Cyc. C. C. P. § 745 and note. Marshaling assets — Order of resort to different funds. — See Kerr's Cyc. C. C. § 2889 and note and post § 3433 and note. 1474 Tit.XIV.ch.II.art.L] POWER OF sale. §§2932,2933 Merger of mortgage in judgment of foreclosure. — See 38 A. R. 133, 134. Necessity for foreclosure and sale to entitle mortgagee to recover possession. — See Kerr's Cyc. C. C. P. § 744 and note. Receiver — Appointment in action to foreclose mortgage. — See Kerr's Cyc. C. C. P. § 564 subd. 2 and note. Reciprocal rights to foreclose and redeem. — See 94 A. D. 742. Redemption from lien. — See Kerr's Cyc. C. C. §§ 2903-2905 and notes. Right of bondholder to sue for enforcement of corporate trust deed.— See 20 L. 535-537. Subrogation to benefits of superior lien. — See Kerr's Cyc. C. C. § 2904 subd. 2 and note. Venue in action to foreclose mortgage. — See Kerr's Cyc. C. C. P. § 392 and note par. 3. §2932. POWER OF SALE. A power of sale may be con- ferred by a mortgage upon the mortgagee or any other per- son, to be exercised after a breach of the obligation for which the mortgage is a security. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 57 C. 480, 482 (cited); 101 C. 224, 227, 35 P. 761 (cited); 68 P. 1020, 1021 (cited); 138 C. 682, 683, 72 P. 343 (cited); 11 F. 253, 260 (cited). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Forfeiture — Validity of contract providing for. — See Kerr's Cyc. C. C. § 2889 and note. Power of sale in mortgage. — See 14 A. D. 473, 474. Sales and conveyances by trustees. — See 19 A. S. 266-297. Vesting of mortgage powers. — See Kerr's Cyc. C. C. § 858 and note. §2933. POWER OF ATTORNEY TO EXEt I'TE. A power of attorney to execute a mortgage must be in writing, sub- scribed, acknowledged, or proved, certified, and recorded in like manner as powers of attorney for grants of real prop- erty. History: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 144 C. 19, 35, 77 P. 712 (cited). As to many miscellaneous matters as to mortgages, see note § 2920, ante. 1475 §§ 2934, 2935 CIVIL CODE. [Div.III,Pt.IV. Cognate section as to agency, generally. — See Kerr's Cyc. C. C. § 2309 and note. Estoppel to deny authority in writing. — See Kerr's Cyc. C. C. § 2922 and note par. 9. Testamentary power to sell and dispose of property. — See 38 A. R. 343. §2934. RECORDING ASSIGNMENT OF MORTGAGE. An assignment of a mortgage maj^ be recorded in like man- ner as a mortgage, and such record operates as notice to all persons subsequently deriving title to the mortgage from the assignor. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 261. ' See Kerr's Cyc. C. C. for 3 pars, annotation. 109 C. 42, 49, 41 P. 799 (construed); 120 C. 238, 241, 242, 52 P. 483 (construed). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Assignment of mortgage, record of. — See 14 A. D. 513. Assignment of mortgage, when subject to equities. — See 14 A. D. 513, 514. Inseparability of debt and security. — See Kerr's Cyc. C. C. § 2936 and note par. 6. Severance of debt and mortgage. — See Kerr's Cyc. C. C. § 2936 and note par. 12. Statutory requirements as to chattel mortgages. — See Kerr's Cyc. C. C. § 2936 and note par. 13. Subsequent payments by mortgager. — See 65 A. S. 576. Third persons are affected by assignment of debt.- — See Kerr's Cyc. C. C. § 2936 and note par. 15. § 2935. NOT NOTICE TO MORTGAGER. When the mort- gage is executed as security for money due, or to become due, on a promissory note, bond, or other instrument, desig- nated in the mortgage, the record of the assignment of the mortgage is not, of itself, notice to a mortgager, his heirs, or personal representatives, so as to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 261. 1476 Tit.XIV,ch.II,art.I.] ASSIGNMENT— DISCHARGE. §§ 2936-2938 See Kerr's Cyc. C. C. for 6 pars, annotation. 120 C. 238, 241, 242, 52 P. 483 (construed); 136 C. 313, 316, 68 P. 975 (cited). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Inseparability of debt and security. — See Kerr's Cyc. C. C. § 2936 and note par. 6. §2986. MORTGAGE PASSES BY ASSIG>ME>T OF DEIJT. The assignment of a debt secured by mortgage carries with it the security. History: Enacted March 21, 1872; amended by Code Commis- sion, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 417, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 15 pars, annotation. 88 C. 319, 327, 26 P. 180, 182 (cited); 93 C. 114, 117, 28 P. 855, 856 (cited); 109 C. 42, 48, 41 P. 799 (applied). As to many miscellaneous matters as to mortgages, see note § 2920, ante. As to record of assignment, see Kerr's Cyc. C. C. § 2934 and note. Assignment of mortgage, notice of. — See 14 A. D. 513. Negotiability of note secured by mortgage as affected by pro- visions in mortgage. — See 35 L. 536, 537. Non-negotiable instruments may be transferred. — See Kerr's Cyc. C. C. § 1459 and note. Rights of assignee of mortgage note. — See 20 A. S. 442. 443. §2937. TIME ALLOWED FOR FILING MORTGAGE F(Ml RECORD (repealed). History: Enacted March 21, 1872; repealed March 30, 1S74. Code Amdts. 1873-4, p. 261. 46 C. 603, 607, 608, 609 (cited); 127 C. 290, 309, 53 P. 911, 59 P. 827, 46 L. 371 (cited in dis. op.). As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2938. M()RTGAGE, HOW DISlHARCiED. A recorded mortgage may be discharged by an entry in the margin of the record thereof, signed by the mortgagee, or his personal rep- resentative or assignee, acknowledging the satisfaction of 1477 §§2939, 29391^ CIVIL CODE. [Div.III.Pt.IV. the mortgage in the presence of the recorder, who must cer- tify the acknowledgment in form substantially as follows: "Signed and acknowledged before me, this day of , in the year A B, Recorder." History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 15 pars, annotation. 72 C. 451, 457, 14 P. 186, 188 (construed); 119 C. 283, 297, 63 A. S. 108, 51- P. 2 (construed). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Extinction of lien. — See Kerr's Cyc. C. C. §§ 2909-2913 and notes. Power' to release mortgage need not be recorded. — See Kerr's Cyc. C. C. § 2933 and note par. 4. Redemption from lien. — See Kerr's Cyc. C. C. §§ 2903-2905 and notes. Right to reinstatement of mortgage when released or dis- charged bj'' mistake. — See 58 L. 788-807. Subrogation to benefits of superior lien.^See Kerr's Cyc. C. C. § 2904 subd. 2 and note. Substitution of one mortgage for another. — See Kerr's Cyc. C. C. § 2941 and note par. 13. Transfer of mortgage. — See Kerr's Cyc. C. C. § 2935 and note par. 6. § 2939. SAME. [ON CERTIFICATE.] A recorded mortgage, if not discharged as provided in the preceding section, must be discharged upon the record by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified as prescribed by the chapter on "recording transfers," stating that the mortgage has been paid, satisfied, or discharged. History: Enacted March 21, 1872. As to discharge of mortgage by oral agreement, see Kerr's Cyc. C. C. § 2939, note. As to many miscellaneous matters as to mortgages, see note § 2920, ante. § 2939^^. SAME— HOW FOREIGN EXECUTORS AND AD- MINISTRATORS MAY SATISFY MORTGAGES. Foreign executors and administrators may satisfy mortgages upon the 1478 Tit.XIV,ch.II,art.I.] SATISFACTION— duty on. §§ 2940, 2941 records of any county in this state, upon producing and recording 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 admin- istration, and which certificate shall also recite that said letters have not been revoked. HlHtory: Enacted March 8, 1895, Stats, and Amdts. 1895, p. 28. §2940. SAME. [RECORD A>'P REFERENCE.] A certifi- cate of the discharge of a mortgage, 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 mortgage is recorded, and in the minute of the discharge made upon the record of the mortgage to the book and page where the discharge is recorded. Uidtory: Enacted March 21, 1872. §2941. DUTY OF MORTGAGEE ON SATISFACTION OF MORTGAGE. When any mortgage has been satisfied, the mortgagee or his assignee must immediately, on the demand of the mortgager, execute, acknowledge, and deliver to him a certificate of the discharge thereof, so as to entitle it to be recorded, or he must enter satisfaction, or cause satisfac- tion of such mortgage to be entered of record; and any mortgagee, or assignee of such mortgagee, who refuses to execute, acknowledge, and deliver to the mortgager the certificate of discharge, or to enter satisfaction, or cause satisfaction of the mortgage to be entered, as provided in this chapter, is liable to the mortgager, or his grantee or heirs, for all damages which he or they may sustain by reason of such refusal, and shall also forfeit to him or them the sum of one hundred dollars. HiNtory: Enacted Martli 21, 1S72: amended Marcli 30, 1874. Code Amdts. 1S7S-4, p. 201 : Ai)ril 15, 1880, Code Amdts. 1880 (C. C. pt.), p. 11. See Kerr's Cyc. C. C. for 10 pars, annotation. fi4 C. 273, 274 (applied hut erroneously cited as § 2951), 30 P. 818 (same error); 106 C. 199, 2Mn. 201. 39 P. 533 (cited). 1479 § 2942 CIVIL CODE. [Div.III.Pt.IV. As to many miscellaneous matters as to mortgages, see note § 2920, ante. Cancelation of release.— See Kerr's Cyc. C. C. § 2938 and note pars. 2-4. Redemption from lien. — See Kerr's Cyc. C. C. §§ 2903-2905 and notes. Subrogation to benefits of superior lien. — See Kerr's Cyc. C. C. § 2904 subd. 2 and note. §2942. PROVISIONS OF THIS CHAPTER DO NOT AF- FECT BOTTOMRY OR RESPONDENTIA. Contracts of bot- tomry or respondentia, although in the nature of mortgages, are not affected by any of the provisions of this chapter. History: Enacted March 21, 1872. As to many miscellaneous matters as to mortgages, see note § 2920, ante. Bottomry. — See Kerr's Cyc. C. C. §§3017-3029 and notes; also note § 3017, post. Respondentia. — See Kerr's Cyc. C. C. §§ 3036-3040 and notes: also note § 3036, post. 1480 Tit.XIV.ch.II.art.II.] PROPERTY THAT MAY BE. § 2947 ARTICLE II. MORTGAGES OF REAL PROPERTY. § 2947. What real property may be mortgaged. § 2948. Form of mortgage. § 2949. What must be recorded as a mortgage [repealed]. § 2950. Defeasance, to affect grant absolute on its face, must be recorded. § 2951. By whom paid after property passes by succession or- will [repealed]. § 2952. May be recorded. § 2947. WHAT REAL PROPERTY MAY BE .^lORTGAGED. Any interest in real property which is capable of being trans- ferred may be mortgaged. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 75 C. 102, 106, 16 P. 532 (cited in dis. op.); 14 P. 641, 642 (cited in dept. op.); 99 C. 546, 548, 34 P. 113 (cited); 122 C. 626, 627, 55 P. 595 (cited); 124 C. 321, 324, 329, 71 A. S. 68, 57 P. 76 (referred to); 131 C. 605, 606, 63 P. 924 (applied); 82 F. 138, 139 (cited). As to effect of subsoquontly acquired title, see Kerr's Cyc. C. C. § 2930 and note. As to many miscellaneous matters as to mortgages, see note § 2920, ante. Adverse possession of another does not preclude mortgage. — See Kerr's Cyc. C. C. § 2921 and note. Corporate property mortgaged. — See note 6 L. 565, 566. Encumbrances by pre-emptors and other claimants of pulilic land.— See 52 A. S. 249, 254. Growing crop — Lien of mortgage on. — See Kerr's Cyc. C. C. § 2972 and note. Personal property which may be mortgaged. — Sec Kerr's Cyc. C. C. § 2955 and note. Possibility — Transfer of. — See Kerr's Cyc. C. C. § 1045 and note. Purchaser procuring deed to third person. — See Kerr's Cyc. C. C. § 2924 and note par. 39. Right to mortgage property. — See Kerr's Cyc. C. C. § 2920 and note par. 47. Street railroad. — See Kerr's Cyc. C. C. § 2920 and note par. 51. Title in United States — Pre-emptor as mortgager. — See Kerr's Cyc. C. C. § 2930 and note pars. 12-14. 1481 §§ 2948, 2949 CIVIL CODE. [Div.III,Pt.IV. § 2948. FORM OF MORTGAGE. A mortgage of real prop- erty may be made in substantially the following form: This mortgage, made the day of , in the year , by A B, of , mortgager, to C D, of , mort- gagee, witnesseth: That the mortgager mortgages to the mortgagee [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 obligation, describing it, etc.]. A. B. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 67 C. 275, 7 P. 693 (referred to); 124 C. 321, 329, 71 A. S. 68, 57 P. 76 (referred to). As to many miscellaneous matters as to mortgages, see note § 2920, ante. Charges not included in mortgage. — See Kerr's Cyc. C. C. § 2920 and note pars. 5, 6. Condition of mortgage deed must give reasonable notice. — See 35 A. D. 86, 87. Consideration for mortgage. — See Kerr's Cyc. C. C. § 2920 and note pars. 9-11. Defective execution of mortgage. — See Kerr's Cyc. C. C. § 2922 and note par. 7. Description of indebtedness in mortgage. — See 49 A. S. 207- 209. Executory agreement. — See Kerr's Cyc. C. C. § 2922 and note pars. 10, 11. Fictitious naine as affecting validity of instrument. — See 39 L. 423-425. "Specific property."^See Kerr's Cyc. C. C. § 2920 and note par. 50. Sufficiency of description of mortgaged premises. — See 12 L. 177. Writing and other formalities required. — See Kerr's Cyc. C. C. § 2922 and note. § 2949. WHAT MUST BE RECORDED AS A MORTGAGE (repealed). History: Enacted March 21, 1872; repealed March 30, 1874. Code Amdts. 1873-4, p. 262. 1482 Tit.XIV,ch.II,art.II.] DEFEASANCE, RECORD OF. §§ 2950, 2951 124 C. 321, 329, 71 A. S. 68, 57 P. 76 (referred to). As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2950. DEFEASANCE, TO AFFECT GRAM ABSOLUTE OX ITS FACE, MUST BE RECORDED. When a grant of real property purports to be an absolute conveyance, but is in- tended to be defeasable 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 defeas- ance, duly executed and acknowledged, shall have been recorded in the office of the county recorder of the county where the property is situated. Hi»itory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 119 C. 18, 21, 50 P. 925 (applied); 124 C. 321, 327, 329, 71 A. S. 68, 57 P. 76 (referred to); 144 C. 130, 132, 77 P. 831 (cited). As to many miscellaneous matters as to mortgages, see note § 2920, ante. As between parties recordation unnecessary. — See Kerr's Cyc. C. C. § 1217 and note. Constructive notice. — See Korr's Cyc. C. C. § 19 and note. Notice from circumstances putting one on inquiry. — See 23 A. D. 47-53. Question of fact as to what constitutes mortgage. — See Kerr's Cyc. C. C. § 2924 and note. Recording deed intended as mortgage. — See 14 A. D. 513. Secret trust — Right of bona fide purchaser. — See 16 A. D. 512. 513. §29.">1. BY >Vll0.n I'AID AFTER PROrEIM V TASSES BY SUCCESSK^N (HI WILL (repealed). HiMtory: Enacted March 21, 1872; ropoaliMl M.nnh ;?". ls74, Code Amdts. 1873-4, p. 262. 64 C. 273, 274 (erroneously cited for §2941). 30 P. 818 (same error); 124 C. 321, 327, 329, 71 A. S. 68. 57 P. 76 (referred to); 65 P. 896 (referred to as inapplicable). As to many miscellaneous matters as to mortgages, see note § 2920, ante. 1483 § 2952 CIVIL CODE. [Div.III.Pt.IV. § 2952. MAY BE RECORDED. Mortgages of real property may be acknowledged or proved, certified and recorded, in like manner and with like effect, as grants thereof. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 262. See Kerr's Cyc. C. C. for 8 pars, annotation. 46 C. ^.03, 607, 608 (cited with §2937); 109 C. 42, 49, 41 P. 799 (referred to); 124 C. 321, 327, 329, 71 A. S. 68, 57 P. 76 (referred to). As between parties recordation unnecessary. — See Kerr's Cyc. C. C. § 1217 and note. As to many miscellaneous matters as to inortgages, see note § 2920, ante. Certified copies — Recordation in various counties. — See Kerr's Cyc. C. C. § 1213 and note. Constructive notice. — See Kerr's Cyc. C. C. § 1213 and note. Defeasance must be recorded, when. — See Kerr's Cyc. C. C. § 2950 and note. Inforination to junior creditor inust be given.- — See Kerr's Cyc. C. C. § 2948 and note par. 9. Marshaling assets — Order of resort to different funds. — See Kerr's Cyc. C. C. § 2889 and note; § 3433 and note. Notice from circumstances putting one on inquiry. — See 23 A. D. 47-53. Office in which to record mortgages. — See Kerr's Cyc. C. C. § 1169 and note. Power to release mortgage need not be recorded. — See Kerr's Cyc. C. C. § 2933 and note par. 4. Prior lien — Right of holder of special lien upon payment of. — See Kerr's Cyc. C. C. § 2876 and note. Separate book for recordation of mortgages. — See Kerr's Cyc. C. C. § 1171 and note. What may be recorded. — See Kerr's Cyc. C. C. § 1158 and note. 1484 Tit.XIV,ch.II,art.III.] MORTGAGE, PERSONALTY. § 2955 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. § 2968. Mortgaged property may be levied upon. § 2969. Limitations on right of levy. § 2970. Distribution of proceeds of sale under process. § 2971. Certain sections not applicable to mortgage of certain ships. § 2972. Continuance of lien of mortgage on corps. § 2973. Mortgages on personal property, validity of certain. §2955. WHAT PERSONAL PROPERTY MAY BE MORT- GAGED. Mortgages may be made upon all growing crops, including grapes and fruit, and upon any and all kinds of personal property, except the following: 1. Personal property not capable of manual delivery; 2. Articles of wearing apparel and personal adornment; 3. The stock in trade of a merchant. History: Enacted March 21, 1872; amended April 3. 1876, Code Amdts. 1875-6, p. 79; April 1, 1S78, Code Amdts. 1R77-8. p. 88; February 28, 1887, Stats, and Amdts. 1887, p. 5; March 7, 1893, Stats, and Amdts. 1893, p. 84; March 16. 1895. Stats, and Amdts. 1895, p. 57; March 9, 1897. Stats, and Amdts. 1897. p. 95; March 3, 1903, Stats, and Amdts. 1903, p. 78; March 3. 1905. Stats, and Amdts. 1905, p. 36; March 22, 1907, Stats. ;ind Amdts. 1907, p. 886, Kerr's Stats, and Amdts. 1906-7, p. 427; February 20, 1909, Stats, and Amdts. 1909, p. 84. See Kerr's Cyc. C. C. for 97 pars, annotation. 56 C. 631 (construed and applied); 57 C. 254, 255 (construed 1485 § 2955 CIVIL CODE. [Div.III.Pt.IV. and applied); 63 C 3, 4 (construed and applied with other sec- tions); 63 C. 332, 333 (construed and applied); 71 C. 331, 334, 12 P. 228, 229 (construed and applied); 84 C. 201, 206, 23 P. 1081, 1082 (construed and applied); 91 C. 285, 286, 25 A. S. 178, 27 P. 656 (construed and applied); 91 C. 636, 639, 27 P. 1088, 1089 (construed and applied with other sections) ; 94 C. 523, 525, 29 P. 961 (construed and applied); 101 C. 9, 10, 35 P. 641 (con- strued and applied); 104 C. 420, 426, 38 P. 92 (construed and applied); 105 C. 467, 469, 470, 38 P. 1109 (construed and applied with § 2924); 39 P. 1069, 1070, 1071, 1072 (construed and applied); 106 C. 673, 679, 39 P. 1071 (construed and applied); 107 C. 144, 147, 40 P. 37 (cited); 109 C. 197, 199, 201, 41 P. 1008 (construed and applied); 112 C. 180, 184, 53 A. S. 201, 44 P. 484 (construed and applied); 115 C. 89, 93, 47 P. 45 (construed and applied); 116 C. 81, 83, 58 A. S. 133, 47 P. 926 (construed and applied) ; 53 P. 911, 913 (construed with § 2957 — in case of articles enumerated in § 2955, recordation is substitute for delivery and change of pos- session) ; 123 C. 231, 236, 55 P. 993 (construed and applied); 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 126 C. 201, 204, 58 P. 460 (construed and ap- plied); 127 C. 290, 296, 297, 53 P. 911, 59 P. 827, 46 L. 371 (referred to); 131 C. 605, 606, 607, 63 P. 924 (construed and applied); 133 C. 496, 498, 65 P. 1030 (construed and applied); 148 C. 262, 268, 113 A. S. 236, 82 P. 956, 2 L. N. S. 813, 7 A. C. 477 (improper discrimination as to fixing- rates of interest and charges in chattel mortgages on specified kinds of personal property is violative of the constitution); 152 C. 488, 493, 92 P. 1017 (recorda- tion is substitute for delivery and change of possession) ; 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock); 51 F. 840, 851 (validity of chattel mortgage upon rolling stock of railroad); 64 F. 450, 451 (validity of chattel mortgage upon rolling stock of railroad under special provision, without complying with §§2955, 2959 — modifying 51 F. 840, 851); 83 F. 965, 973 (effect of chattel mortgage on sheep — increase). As to chattel mortgage on stock of goods, see 13 L. 390. As to effect of chattel mortgage on fixtures, see 15 L. 56-63. As to effect of mortgage of future crops as against creditors, purchasers, and others, see 23 L. 465-467. As to many miscellaneous matters as to mortgages, see note § 2920, ante. As to mortgage on chattels to be manufactured or acquired as independent articles and not as increase or fruits of existing property, see 18 L. 298-303. As to mortgage on crops generally, see 10 L. 490. As to property on which chattel mortgage may be given, see 3 L. 795. As to sale or mortgage of future crops, see 23 L. 449-477. As to what constitutes chattel mortgage, see 6 L. 641. 1486 Tit.XIV,ch.II,art.III.] FORM— VOID, WHEN. §§2956,2957 §2956. FORM OF PERSONAL MORTGAGE. A mortgage of personal property may be made in substantially the fol- lowing form: This mortgage, made the day of , in the year , by A B, of , by occupation a mortgager, to C D, of , by occupation a mortgagee, witnesseth: That the mortgager mortgages to the mortgagee [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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for IS pars, annotation. 63 C. 550, 551 (construed and applied with other sections): 91 C. 636, 639, 27 P. 1088, 1089 (construed and applied); 106 C. 673, 678, 39 P. 1071 (construed and applied); 40 P. 104, 105 (construed and applied); 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (con- strued and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock); 83 F. 964, 973 (invalidity of chattel mortgage upon growing crop unless executed as prescribed by this section). As to many miscellaneous matters as to mortgages, see note § 2920, ante. As to conveying and encumbering property by general descrip- tion, see 66 A. S. 59-62. As to indefinite description of goods in chattel mortgage, see 72 A. D. 483. As to sufficiency of description of property in chattel mort- gage, see 14 A. S. 239-217. §2957. WHEN VOID AS TO THIRD PERSONS. A mort- gage of personal property is void as against creditors of the mortgager and subsequent purchasers and encumbrancers of the property in good faith and for value, unless: 1. It is accompanied by the affidavit 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 acknowledged or proved, certified, and recorded in like manner as grants of real property. Hiiitory: Enacted March 21, 1872. 1487 § 2958 CIVIL CODE. [Div.III,Pt.IV. See Kerr's Cyc. C. C. for 72 pars, annotation. 63 C. 550, 551, 552 (construed and applied); 67 C. 32, 34, 7 P. 50, 51 (construed and applied); 67 C. 57, 58, 7 P. 47, 48 (con- strued and applied); 84 C. 554, 556, 557, 24 P. 169, 170 (construed and applied); 91 C. 636, 638, 639, 27 P. 1088, 1089 (construed and applied with other sections); 94 C. 494, 496, 29 P. 858 (construed and applied); 104 C. 420, 427, 38 P. 92 (construed and applied); 105 C. 327, 330, 332, 38 P. 889 (construed and applied); 105 C. 467, 470, 38 P. 1109 (construed and applied); 39 P. 783, 785 (con- strued and applied); 39 P. 1069, 1070, 1071 (construed and applied); 106 C. 673, 679, 680 (e»roneously cited as §1957), 39 P. 1071, 1073 (correct citation); 108 C. 250, 253, 257, 49 A. S. 84, 41 P. 472, 39 P. 783 (construed and applied); 115 C. 316, 319, 325, 47 P. 47, 1095, 36 L. 505 (construed and applied with other sec- tions) ; 121 C. 272, 274, 53 P. 801 (construed and applied); 53 P. 911, 913 (construed with § 2955 — in case of articles enumerated in § 2955, recordation is substituted for delivery and change of possession); 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied); 127 C. 290, 296, 304, 306, 308, 309, 53 P. 911, 59 P. 827, 46 L. 371 (construed and applied); 128 C. 103, 105, 60 P. 675 (construed and applied); 130 C. 474, 477, 62 P. 735 (construed and applied); 131 C. 605, 607, 63 P. 924 (construed and applied) ; 143 C. 4, 6, 76 P. 647 (construed and applied) ; 152 C. 488, 492, 92 P. 1017 (applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock); 51 P. 840, 851 (validity of chattel mortgage upon rolling stock of railroad). As to chattel mortgages, registration and filing, etc., of, see 13 L. 388-390; and note 21 A. S. 282. As to many miscellaneous matters as to mortgages, see note § 2920, ante. As to sufficiency of pre-existing debt as consideration for chattel mortgage to give right as to bona fide purchaser of the mortgagee, see 19 L. 590, and 33 L. 305, 311. As to when chattel mortgage deemed fraudulent, see 5 L. 137. §2958. MORTGAGE OF SHIPS, WHEN VOID AS TO THIRD PERSONS. 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 mortgager, his heirs, and devisee, and persons having actual notice thereof), unless the mortgage is recorded in the office of the collector of customs where such vessel is registered or enrolled. History: Enacted March 2l", 1872. 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). 1488 Tit.XIV,ch.II,art.III.] RECORDING— trust. §§ 2959, 2960 As to foreclosure of mortgage on ship, and application of proceeds, see Kerr's Cyc. C. C. § 2958, note par. 2. As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2959. WHERE RECORDED. A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mortgager resides, if the mort- gager be a resident of this state, and it shall also be recorded in the county in which the property mortgaged is situated, or to which it may be removed. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, held unconstitutional, see history, § 4 ante; amended March 22, 1907, Stats, and Amdts. 1907, p. 853. In effect immediately. See Kerr's Cyc. C. C. for 12 pars, annotation. 63 C. 550, 551 (construed and applied); 115 C. 316, 319, 321, 322, 323, 47 P. 47, 1095, 36 L. 505 (construed and applied); 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 127 C. 290, 298, 53 P. 911, 59 P. S27, 46 L. 371 (referred to); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock); 64 F. 450, 451 (validity of chattel mortgage upon rolling stock of railroad under special provision, without com- plying with §§2955, 2959 — modifying 51 P. 840, 851); 118 P. 668, 669 (construed and applied with § 2962 — invalidity of mortgage covering property in two counties, but recorded only in one). As to many miscellaneous matters as to mortgages, see note § 2920, ante, §2960. PROPERTY IN TRANSIT, WHERE TO BE RE- CORDED. For the purposes of this article, property in transit from the possession of the mortgagee to the county of the residence of the mortgager, or to a location for use, is, dur- ing a reasonable time for such transportation, to be taken as situated in the county in which the mortgager resides, or where it is intended to be used. History: Enacted March 21, 1872. 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to many miscellaneous matters as to mortgages, see note § 2920, ante. 1489 §§ 2961-2963 CIVIL CODE. [Div.III.Pt.IV. §2961. PROPERTY OF A COMHON CARRIER, WHERE TO BE RECORDED. For a like purpose, personal property- used in conducting the business of a common carrier is to be taken as situated in the county in which the principal office or place of business of the carrier is located. History: Enacted March 21, 1872. 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2962. RECORDED IN DIFFERENT PLACES. A single mortgage of personal property, embracing several things of such character or so situated that by the provisions of this article separate mortgages upon them would be required to be recorded in different places, is only valid in respect to the things as to which it is duly recorded. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 127 C. 290, 310, 53 P. 911, 59 P. 827, 46 L. 371 (construed and applied in dis. op.); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock); 118 F. 668, 669 (construed and applied with § 2959 — invalidity of mortgage covering property in two counties, but recorded only in one). As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2963. PERSONAL MORTGAGE MAT BE RECORDED. 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 like effect as grants of real property; but they must be recorded in books kept for personal mortgages exclusively. History: Enacted March 21, 1872. 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied With other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). 1490 Tit.XIV,ch.II,art.III.] PROPERTY EXEMPT. §§2964,2965 As to effect of recording or want thereof, see Kerr's Cyc. C. C. §§ 1213-1218 and notes. As to many miscellaneous matters as to mortg'ages, see note § 2920, ante. As to mode of recording, see Kerr's Cyc. C. C. §§ 1169-1173 and notes; § 2957 and note pars. 19-25. § 2964. CERTIFIED ( OPIES MAY BE RECORDED, WHE\. A certified copy of a mortgage of personal property once recorded may be recorded in any other county, and when so recorded the record thereof has the same force and effect as though it was of the original mortgage. History: Enacted March 21, 1872. 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2965. PROPERTY EXEMPT FROM EFFECT OF MORT- GAGE, WHEN. When personal property mortgaged is there- after removed from the county in which it is situated, the lien of the mortgage shall not be affected thereliy for thirty days after such removal; but, after the expiration of such thirty days, the property mortgaged is exempted from the operation of the mortgage, except as between the parties thereto, until either: 1. The mortgagee causes the mortgage to be recorded in the county to which the property has been removed; or 2. The mortgagee takes possession of the property as pre- scribed in the next section. History: Enacted March 21, 1872; amended February 22, 1909, Stats, and Amdts. 1909, p. 44. See Kerr's Cyc. C. C. for 7 pars, annotation. 115 C. 316, 319, 320, 323, 324, 47 P. 47, 1095, 36 K 505 (con- strued and applied); 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 127 C. 290. 298, 53 P. 911, 59 P. 827, 46 L. 371 (referred to): 151 C. 520, 521, 522, 523, 525, 91 P. 327 (construed — unless one of two steps specified in this section is taken during thirty days after removal, validity of mortgage ceases, except as between parties, at 1491 §§ 2966, 2967 CIVIL CODE. [Div.III,Pt.IV. expiration of thirty days); 152 C. 488, 495, 497. 92 P. 1017 (con- strued — time limit clause cannot be disregarded — -failure to record — loss of lien); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to effect of removal of mortgaged property into anotlier state, see 70 A. D. 66-72. As to many miscellaneous matters as to mortgages, see note § 2920, 3inte. § 2966. MAY BE TAKEN BY MORTGAGEE AS A PLEDGE, WHEIV. If the mortgager 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 mort- gagee may take possession and dispose of the property as a pledge for the payment of the debt, though the debt is not due. History: Enacted March 21, 1872. 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2967. HOW FORECLOSED. A mortgagee of personal property, when the debt to secure which the mortgage was executed becomes due, may foreclose the mortgager's right of redemption by a sale of the property, made in the manner and upon the notice prescribed by the title on "pledge," or by proceedings under the code of civil procedure. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 124 C. 321, 327, 330, 71 A. S. 28, 57 P. 76 (construed and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to foreclosure of mortgages, see Kerr's Cyc. C. C. P. §§ 726- 728, note. As to many miscellaneous matters as to mortgages, see note § 2920, ante. As to rights and remedies of chattel mortgagers where prop- erty has been wrongfully sold, see 16 A. S. 499-503. 1492 Tit.XlV,ch.II,art.III.] LIMITATION ON LEVY. §§ 2968, 2969 § 2968. 3I0KTGAGE PKOPERTY MAY BE LEVIED UPON. Personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor of the mortgager. History: Enacted March 21, 1872; amended by Code Com- I mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 16 pars, annotation. 56 C. 217, 218 (construed and applied); 67 C. 57, 59, 7 P. 47 (construed and applied); 71 C. 6.8, 70, 11 P. 847, 848 (referred to); 91 C. 119, 121, 27 P. 601, 602 (construed and applied with other sections); 111 C. 233, 234, 43 P. 619 (construed and applied): 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to many miscellaneous matters as to mortgages, see note § 2920, ante. § 2969. LIMITATIONS ON RIGHT OF LEVY. Before the property is so taken, the officer 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 mortgagee. History: Enacted March 21, 1872; amended by Code Com- mission. Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 8 pars, annotation. 56 C. 217, 218 (construed and applied with §2968); 63 C. 550, 551, 552 (construed and applied with other sections); 67 C. 57, 59, 7 P. 47 (construed and applied with §2968); 71 C. 68. 70. 11 P. 847, 848 (construed and applied with other sections); 91 C. 119, 121, 122, 27 P. 601, 602 (construed and applied with other sections); 111 C. 233, 234, 43 P. 619 (construed and applied witli §2968); 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 126 C. 288, 289. 290, 58 P. 691 (con- strued and applied with other sections); 131 C. 552, 556, 82 A. S. 391, 63 P. 844 (referred to); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock); 7 C. A. 465, 4fifi. 467. 94 P. 372, 373 (construed and applied with § 2970, where property secured by chattel mortgage was attached). As to many miscellaneous matters as to mortgages, see note § 2920, ante. 1493 §§ 2970-2972 CIVIL CODE. [Div.III.Pt.IV. § 2970. DISTRIBUTION OF PROCEEDS OF SALE UNDER PROCESS. When the property thus taken is sold under pro- cess, the officer must apply the proceeds of the sale as fol- lows: 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 proceeds of sales under execution are applied in other cases. History: Enacted March 21, 1872. 63 C. 550, 552 (construed and applied with §2969); 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock); 7 C. A. 465, 467, 468, 94 P. 372, 373 (con- strued and applied with § 2969 — attachment of property secured by chattel mortgage — rights and remedies of mortgagee). As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2971. CERTAIN SECTIONS NOT APPLICABLE TO MORTGAGE OF CERTAIN SHIPS. Sections twenty-nine hun- dred and fifty-seven, twenty-nine hundred and fifty-nine, twenty-nine hundred and sixty, twenty-nine hundred and sixty- one, twenty-nine hundred and sixty-two, twenty-nine hundred and sixty-three, twenty-nine hundred and sixty-four, twenty- nine hundred and sixty-five, and twenty-nine hundred and sixty-six do not apply to any mortgage of a ship or part of a ship under the flag of the United States. History: Enacted March 21, 1872. 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 4 C. A. 680, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to many miscellaneous matters as to mortgages, see note § 2920, ante. §2972. CONTINUANCE OF LIEN OF MORTGAGE ON CROP. The lien of a mortgage on a growing crop continues on the crop after severance, whether remaining in its original state or converted into another product, so long as the same remains on the land of mortgager. History: Enacted April 1, 1878, Code Amdts. 1877-8, p. 89. 1494 Tit.XIV,ch.II,art.III.] validity of certain. § 2973 See Kerr's Cyc. C. C. for 28 pars, annotation. 59 C. 142 (construed and applied); 63 C. 3, 4 (construed and applied); 70 C. 196, 197, 11 P. 608 (construed and applied); 77 C. 241, 244, 19 P. 482, 483 (construed and applied); 107 C. 27, 29, 40 P. 22 (construed and applied); 109 C. 197, 201, 41 P. 1008 (referred to in dis. op.); 117 C. 412, 416, 417, 49 P. 414 (construed and applied); 124 C. 321, 327, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections); 142 C. 529, 544, 76 P. 243, 244 (construed and applied); 3 C. A. 443, 445, 446, 85 P. 662 (lien on crop ceases upon removal of crop from land on which it grew); 4 C. A. 630, 633, 89 P. 360, 361 (validity of mortgage upon water stock). As to continuance of lien after severance- of growing crops, see 18 A. S. 770; 30 A. S. 324. As to effect of removal of property to another state on lien, see 30 A. S. 324. As to many miscellaneous matters as to mortgages, see note § 2920, ante. As to sufficiency of description of property in chattel mort- gage, see 14 A. S. 239, and 3 L. 95. As to title and right of mortgagee after condition broken, see 96 A. S. 682. As to whether lien on growing crops exists after severance, see 18 A. S. 770. § 2973. MORTGAGES OX PERSONAL PROPERTY, VALID- ITY OF CERTAIN. Mortgages of personal property, other than that mentioned in section twenty-nine hundred and fifty- five, and mortgages not made in conformity with the provi- sions of this article, are nevertheless valid between the par- ties, their heirs, legatees, and personal representatives, and persons who, before parting with value, have actual notice thereof. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 418, held unconstitutional, see his- tory, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 617. 124 C. 321, 330, 71 A. S. 68, 57 P. 76 (construed and applied with other sections of this section as enacted by Code Commis- sion in 1901, which act is verbatim et literatim that of the re- enactment of 1905). As to many miscellaneous matters as to mortgages, see note § 2920, ante. 1495 § 2986 CIVIL CODE. [Div.III,Pt.IV. CHAPTER III. PLEDGE. § 2986. Pledg-e, what. § 2987. When contract is to be deemed a pledge. § 2988. Delivery essential 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 transferred to apparent owner for 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 reward. § 2998. Gratuitous pledge-holder. § 2999. Debtor's misrepresentation of value of pledge. § 3000. When pledgee may sell. § 3001. When pledgee must demand performance. § 3002. Notice of sale to pledgeor. § 3003. Waiver of notice of sale. § 3004. Waiver of demand. § 3005. Sale must be by auction. § 3006. Pledgee's sale of securities. § 3007. Sale on the demand of the pledgeor. § 3008. Surplus to be paid to pledgeor. § 3009. Pledgee may retain. § 3010. Pledgee's purchase of property pledged. § 3011. Pledgee may foreclose right of redemption. § 2986. PLEDGE, IVHAT. Pledge is a deposit of personal property by way of security for the performance of another act. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 32 pars, annotation. 76 C. 171, 172, 18 P. 260 (applied); 113 C. 463, 466, 45 P. 840 (applied); 121 C. 515, 519, 53 P. 1119 (applied); 123 C. 643, 648 (applied but erroneously cited as § 2986 C. C. P.), 56 P. 468, 470 (correct citation); 125 C. 183, 187, 57 P. 897 (applied); 133 C. 191, 195, 65 P. 381 (applied); 144 C. 631, 633, 78 P. 22 (applied); 6 C. A. 88, 91, 91 P. 532 (what agreement is pledge of property as collateral security). 1496 Tit.XIV.ch.III.] PLEDGES, GENERALLY. §2986 PLEDGES. As to definition and nature of pledges, see 49 A. D. 730; 6 W. & P. 5412. As to extinguishment of lien of pledge by tender or other- wise, see Kerr's Cyc. C. C. § 3000, note. As to law of collateral securities, see 32 A. S. 711. As to pledge as distinguished from chattel mortgage; con- sideration redemption, see 4 L. 305. As to pledge of stock, see 12 L. 781. As to right of surety to control pledge, see 21 L. 131. As to validity of pledge by agent of principal's property, see 14 L. 235. As to waiver of pledge by attachment or execution, see 50 L. 719. Assignment of pledged property. — See 3 A. C. 723. By agent, of principal's property. — See 14 L. 234. Care required of pledgees. — See 83 A. S. 392. Collateral securities — Diligence required of one who hold.s negotiable papers as. — See 34 A. D. 451. Same — Rights and remedies of parties thereto. — Sef 32 A. S. 711. Same — The law of. — See 32 A. S. 711. Consideration for. — See 4 L. 305. Defintion and nature of. — See 49 A. D. 730; 6 W. & P. 5412. Delivery, necessity of and possession. — See 4 L. 306. Distinguished from chattel mortgage. — See 4 L. 305. Dividends, right of pledgee of stock to collect. — See 7 A. C. 725. Does assignee or mortgage as collateral security, who fore- closes the same and purchases the property, hold the title sub- ject to a trust in favor of the assignor. — See 7 L. N. S. 1094. Duties and liabilities of pledgee — As to, generally, see fi A. C. 106; 7 A. C. 394; 7 A. C. 690. Same — Liability of pledgee for loss due to depreciation in value of valuation after maturity of debt. — See 7 A. C. 395. Same — Of stock to soli at maturity of debt. — See 3 L. N. S. 1199. Effect — Of payment on security held as collateral to st.iy running of statute against principal obligation. — See 12 L. N. S. 1032. Same — Of taking ri>llateral security upon maritime lien. — See 70 L. 408. Same — Of unautiiorized sale or disposal of pledge by pl< f pledge, see 4 L. 305. 1499 §§ 2989-2991 CIVIL CODE. [Div.III,Pt.IV. As to how far pledge may be effectual of which pledgeor's agent is made depositary, see 25 L. 577. As to many miscellaneous matters as to pledges, see note § 2986, ante. §2989. INCREASE OF THING. The increase of property pledged is pledged with the property. History: Enacted March 21, 1872. As to dividend on stock pledged, see Kerr's Cyc. C. C. § 2989, note. As to many miscellaneous matters as to pledges, see note § 2986, ante. § 2990. LIENOE MAY PLEDGE PEOPERTY TO EXTENT OF HIS LIEN. One who has a lien upon property may pledge it to the extent of his lien. Hi.story: Enacted March 21, 1872. As to lienor's action for damages, see Kerr's Cyc. C. C. § 3338 and note. As to many miscellaneous matters as to pledges, see note § 2986, ante. §2991. REAL OWNER CANNOT DEFEAT PLEDGE OF PROPERTY TRANSFERRED TO APPARENT OWNER FOR PURPOSE OF PLEDGE. One who has allowed another to assume 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 property, made by the other, to a pledgee who received the property in good faith, in the ordi- nary course of business, and for value. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. 52 C. 611, 616, 28 A. R. 647 (applied); 59 C. 154, 168, 43 A. R. 245 (construed); 90 C. 10, 13, 27 P. 159, 160 (applied); 121 C. 574, 576, 54 P. 72 (construed); 124 C. 282, 289, 71 A. S. 58, 57 P. 84 (applied); 3 C. A. 198, 200, 84 P. 778 (construed with subd. 2, § 2368 — purpose of § 2991 is to protect pledgee). As to authority of factor to pledge, see Kerr's Cyc. C. C. § 2368 and note. As to many miscellaneous matters as to pledges, see note § 2986, ante. 1500 TitXIV.Ch.III.] PLEDGE— LENDER. §§ 2992-2995 §2992. PLEDGE-LENDER, WHAT. Property may be pledged as security for the obligation of another person than the owner, and in so doing the owner has all the rights of a pledgeor for himself, except as hereinafter stated. HiMtory: Enacted March 21, 1872. 133 C. 191. 195, 6.5 P. 381 (applied). As to many miscellaneous matters as to pledges, see ni)l«- § 2986, ante. , § 2993. FLEDGE-HOLDEK, >VHAT. A pledgeor 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. History: Enacted March 21, 1ST J. 61 C. 405, 429 (erroneously cited in dis. op. as §2903); 130 C. 258, 262, 62 P. 463 (referred to). As to many miscellaneous matters as to pledtr'-fi. s.i- u<>io § 2986, ante. §2994. WHEN PLEDGE-LE>DER MAY WITIIDHAW I'KOPEHTV PLElXiEI). One who pledges property as secu- rity for the obligation of another, cannot withdraw the prop- erty pledged otherwise than as a pledgeor for himself might, and if he receives from the debtor a consideration for the pledge he cannot withdraw it without his consent. History: Enacted March 21, 1872. For commissioners' comment on this section, see Kerr's Cyc. C. C. § 2994, note. As to many miscellanootis matters as to pledgres, see note 8 2986, ante. §2995. 0BI.IGAT1(»S OF rLEDGK-HOLDEli. A pledge- holder for reward cannot exonerate himself from his under- taking; and a gratuitous pledge-holder can do so only by giv- ing reasonable notice to the pledgeor and pledgee to appoint a new pledge-bolder, and in case of their failure to agree, by depositing the property pledged with some impartial person, 1501 §§ 2996-2998 CIVIL CODE. [Div.III.Pt.IV. who will then be entitled to a reasonable compensation for his care of the same. History: Enacted March 21, 1872. For commissioners' comment on this section, see Kerr's Cyc. C. C. § 2995, note. As to many miscellaneous matters as to pledges, see note § 2986, ante. §2996. PLEDGE-HOLDER MUST ENFORCE RIGHTS OF PLEDGEE. A pledge-holder must enforce all the rights of the pledgee, unless authorized by him to waive them. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 121 C. 515, 520, 53 P. 1119 (applied); 130 C. 258, 262, 62 P. 463 (construed). As to many miscellaneous matters as to pledges, see note § 2986, ante. § 2997. OBLIGATION OF PLEDGEE AND PLEDGE-HOLD- ER, FOR REWARD. A pledgee, or a pledge-holder for reward, assumes the duties and liabilities of a depositary for reward. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 24 pars, annotation. 125 C. 596, 599 (applied but erroneously cited as §2887), 58 P. 186, 187 (correct citation). As to care required of pledgees, see 83 A. S. 392. As to depositary for reward, see ante § 1852. As to diligence required of one who holds negotiable paper as collateral security, see 34 A. D. 451. As to duty of pledgee to care for tiling pledged, see 17 L. 193. As to liability of pledgee as shareholder, see 36 L. 139. As to many miscellaneous matters as to pledges, see note § 2986, ante. §2998. GRATUITOUS PLEDGE-HOLDER. A gratuitous pledge-holder assumes the duties and liabilities of a gratuitous depositary. History: Enacted March 21, 1872. 125 C. 596, 599, 58 P. 186 (construed). As to gratuitous depositary, see Kerr's Cyc. C. C. §§ 1844-1847 and note. 1502 Tit.XIV.ch.III.] MISREPRESENTATION. §§ 2999-3001 As to many miscellaneous matters as to pledges, see note § 2986, ante. As to obligations of pledge-holder, see Kerr's Cyc. C. C. § 2995 and note. § 2999. DEBTOR'S MISKEPKESEMATIOX OF VALIE OF PLEDGE. Where a debtor has obtained credit, or an exten- sion of time, by a fraudulent misrepresentation of the valup 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. HiNtory: Enacted March 21, 1872, founded upon Civ. Code I^a., art. 3141. §3000. WHEN PLEDGEE MAY SELL. 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 here- inafter prescribed. Ili.storyi Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 66 C. 97. 98, 4 P. 1062, 1063 (applied); 125 C. 59fi. 6on. .-,s P. ISO (construed); 128 C. 202, 208. 60 P. 778 (applied i; IH (\ 32r>, 333. 77 P. 937 (construed). As to effect of unaccepted tender upon pledge, s«e 33 L. 237. As to foreclosure of pU'dge, see Kerr's Cyc. C. C. §3011 and note. As to many misc»llaneous matters as to pledges, see note 8 29S6, ante. As to remedies of pledgees, see 79 A. D. 499. As to rights and reinetlies of parties to collateral securities, see 32 A. S. 711. As to sale of pledpre, see I T^. 305. §3001. WHEN PLEDCiEE MIST DE.>IA>D PEKFOKM- A>'("E. Hefore property pled.ged can be sold, and after per- formance of the act for which it is security is due. the pledgee must demand performance thereof from the debtor, If the debtor can be found. History: Enacted March 21. 1872; amended Mnrcli .".o. 1ST1. Code Amdts. 1873-4, p. 262. 1503 / §§ 3002-3004 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 5 pars, annotation. 62 C. 426, 439 (construed); 82 C. 199, 200, 22 P. 1112 (con- strued); 125 C. 596, 600, 58 P. 186 (construed); 128 C. 202, 208, 60 P. 778 (applied); 123 F. 24, 26 (construed and applied with § 3002 — effect of pledgeor's death). As to many miscellaneous matters as to pledges, see note § 2986, ante. § 3002. NOTICE OF SALE TO PLEDGEOR. A pledgee must give actual notice to the pledgeor of the time and place at which the property pledged will be sold, at such a reasonable time before the sale as will enable the pledgeor to attend. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 68 C. 522, 526, 9 P. 947 (referred to); 82 C. 199, 200, 22 P. 1112 (construed); 125 C. 596, 600, 58 P. 186 (construed); 128 C. 202, 208, 60 P. 778 (applied); 3 C. A. 387, 393, 86 P. 729 (applied with other sections); 123 F. 24, 26 (construed and applied with § 3001 — effect of pledgeor's death). As to many miscellaneous matters as to pledges, see note § 2986, ante. §3003. WAIVER OF NOTICE OF SALE. Notice of sale may be waived by a pledgeor at any time; but is not waived bj" a mere waiver of demand of performance. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 68 C. 522, 526, 9 P. 947 (referred to); 82 C. 199, 201, 22 P. 1112 (construed); 125 C. 593, 600, 58 P. 186 (construed); 3 C. A. 387, 393, 86 P. 729 (applied with other sections). As to many miscellaneous matters as to pledges, see note § 2986, ante. §3004. WAIVER OF DEMAND. A debtor or pledgeor waives a demand of performance as a condition precedent to a sale of the property pledged, by a positive refusal to per- form, after performance is due; but cannot waive it in any other manner except by contract. History: Enacted March 21, 1872. 82 C. 199, 201, 22 P. 1112 (construed); 125 C. 596, 600, 58 P. 186 (construed). As to many miscellaneous matters as to pledges, see note § 2986, ante. 1504 Tit.XIV.Ch.III.] PLEDGEE'S SALE. §§3005-3007 §3005. SALE MUST BE BY AUCTION. The sale by pledgee, of property pledged, must be made by public auction, in the manner and upon the notice of sale of personal prop- erty under execution. HIMoryt Enacted March 21. 1872; amended April Ifi. 1909. Stats, and Amdts. 1909, p. 972. See Kerr's Cyc. C. C. for 3 pars, annotation. 66 C. 97. 98, 4 P. 1062 (applied); 68 C. 522. 526, 9 P. 947 (re- ferred to); 82 C. 199, 200. 22 P. 1112 (applied); 113 C. 475. 478, 45 P. 815 (referred to); 125 C. 596, 600. 58 P. 186 (construed); 3 C. A. 387, 393, 86 P. 729 (applied with other sections). As to many miscellaneous matters as to pkilges, see note § 2986, ante. As to pledgee's conversion of pledged projxrty hy invalid sale, see 43 L. 737. §3(M)«. PLEDGEE'S SALE OF SECURITIES. A pledgee cannot sell any evidence of debt pledged to him. e.\cei)t the obligations of governments, states, or corporations; but he may collect the same when due. Hlfttorr: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 85 C. 122. 129. 24 P. 642, 643 (construed); 114 C. 126, 129. 45 P. 1068 (construed); 121 C. 515, 520. 53 P. 1119 (applied); 125 C. 596. 600. 58 P. 186 (con.«trued) : 127 C. 171. 175, 59 P. 587 (ap- plied); 134 C. 287. 289. 66 P. 324 (applied); 152 C. 419. 425. 93 r. 114 (pledgee of life Insurance policy may collect It when due); 4 C. A. 400. 402, 88 P. 373 (pledgee may sue to collect note). As to extent of recovery by pledgee on note, see 44 L. 243. As to many miscellaneous matters as to pledges, see note i 2986. ante. As to right of pli'dgoe to soil securities; negotiable Instrti- ments held as collateral; obllg.Ttlons nf pledgee; d«-mand and notice, see 4 L. 586. §3007. SALE (>> THE IIE.M VM) OF THE IMKIK.EOK. Whenever i)ro|)tMty |)l»Ml^(>d can l)e sohl for a price .sufTicient to .satisfy the claim of the pledgee, the pledgeor may require it to be sold, and its proceeds to be applied to such satisfac- tion, when due. Illntory: Enact.. I March 21, 1872. Kerr's C. C— 48 1505 §§ 3008-3010 CIVIL CODE. [Div.TII,Pt.IV. See Kerr's Cyc. C. C. for 2 pars, annotation. 125 C. 596, 600, 58 P. 186 (construed). As to many miscellaneous matters as to pledges, see note § 2986, ante. § 3008. SURPLUS TO BE PAID TO PLEDGEOR. After a pledgee has lawfully sold property pledged, or otherwise col- lected its proceeds, he may deduct therefrom the amount due under the principal obligation, and the necessary expenses of sale and collection, and must pay the surplus to the pledgeor, on demand. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 101 C. 445, 453, 35 P. 1035 (cited — transfer of note by way of pledge); 125 C. 596, 600, 58 P. 186 (construed). As to many miscellaneous inatters as to pledges, see note § 2986, ante. § 3009. PLEDGEE MAY RETAIN. When property pledged is sold by order of the pledgeor before the claim of the pledgee is due, the latter may retain out of the proceeds all that can possibly become due under his claim until it becomes due. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 262. See Kerr's Cyc. C. C. for 2 pars, annotation. 125 C. 596, 600, 58 P. 186 (construed). As to many miscellaneous matters as to pledges, see note § 2986, ante. §3010. PLEDGEE'S PURCHASE OF PROPERTY PLEDGED. Whenever property pledged is sold at public auc- tion, 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. History: Enacted March 21, 1872; amended March 8, 1895, Stats, and Amdts. 1895, p. 26. See Kerr's Cyc. C. C. for 6 pars, annotation. 62 C. 426, 439 (applied); 125 C. 596, 600, 58 P. 186 (construed); 3 C. A. 387, 393, 86 P. 729 (applied with other sections). 1506 Tit.XIV.ch.IIIl FORECLOSING REDRMPTIOX. §3011 As to many inisc-i.llaiu'ous inattt-rs as to pli-dges, see note I 2986, ante. §3011. PLEIXJKK MAY FOKEt'LOSE RKJHT (►F KEDE.Ml'- TION. Instead of sellins property pledged, as hereinbefore provided, a pledgee may foreclose the right of redemption by a judicial sale, imder the direction of a competent court; and in that case may be authorized by the court to purchase at the sale. Ili.slor.v: Enacted March 21, 1S72. See Kerr's Cye. C. C. for 11 pars, annotation. 66 C. 97, 98, 4 P. 1062 (applied): 85 C. 122. 129, 24 V. 642. 643 (applied); 125 C. 596, 60n, 58 P. 186 (construed); 127 C. 171. 175, 58 P. 587 (applied); 134 C. 287, 289, 66 P. 324 (construed). As to many miscfllaneoii.s matters as to pleilges, si'o note' ! 2986. ante. 1507 § 3017 CIVIL CODE. [Div.III.Pt.IV. CHAPTER IV. BOTTOMRY. § 3017. Bottomry, what. § 3018. Owner of ship may hypothecate. § 3019. When master may hypothecate ship. § 3020. Same. [When owner cannot be readied, etc.] § 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. § 3027. Bottomry lien, how lost. § 3028. Preference of bottomry lien over other liens. § 3029. Priority of bottomry liens. §3017. BOTTOMRY, WHAT. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 40 pars, annotation. BOTTOMRY AND RESPONDENTIA. As to bottomry bond. — See 19 L. ed. 651; 1 W. & P. 849. Same — As a negotiable instrument. — See 5 W. & P. 4768. Same — Circumstances justifying giving of. — See 2 Obiter Dig. 197. Same — Definition of bottomry bond. — See 2 Obiter Dig. 196; 1 W. & P. 849. Same — 'Distinguished from implied liens. — See 2 Obiter Dig. 196. Same — Good in part and bad in part. — See 2 Obiter Dig. 198. Same — Liberally regarded by admiralty courts. — See 2 Obiter Dig. 196. Same — Personal liability of owner. — See 2 Obiter Dig. 197. Same — Property to which attaches. — See 2 Obiter Dig. 197. Same — Rules of law as to abandonment inapplicable to. — See 2 Obiter Dig. 198. Same — "Vests no indefeasible interest. — See 2 Obiter Dig. 197. As to bottomry by owner. — See 4 Encyc. L. 740. 1508 Tit.XIV,Ch.IV.] HVPOTHECATION. §§ 3018. 3019 As to capacity or authority of master to liypotliecate or make bond. — See 44 Cent. Dig. col. 384, §362; 4 Encyc. L. 741. Same — Interest in cargo or vessel. — See 44 Cent. Dig. col. 388, §363. Same — Necessity of communicating witli owner. — See 44 Cent. Dig. col. 388, § 364. As to capacity or autliority to talte bond. — See 44 Cent. Dig. col. 389, § 365. As to definition of bottomry. — Sec 5 A. D. 404; XH A. I). 34lt; 15 L. ed. 267; 4 Encyc. L. 376; 1 W. & P. 849. As to duty of lendor to ascertain and sliow necessity. — See 44 Cent. Dig. col. 393, §368; 4 Encyc. L. 745. As to laches. — See 4 Encyc. L. 749. As to loss of vessel or cargo and lien on salvage and other proceeds. — See 44 Cent. Dig. col. 395, §371. As to nature of the contract. — See 44 Cent. Dig. col. 3S4. §361;. 4 Encyc. L. 737. As to the nature of the lien. — See 4 Encyc. L. 749. As to necessity for hypothecation and consideration for bond in general. — See 44 Cent. Dig. col. 384. S8 362-364; col. 390, §366. As to payment and satisfaction. — See 44 Cent. Dig. col. VM. §372. As to payment of advances. — See 4 Encyc. I>. 7 48. As to right of master to hypothecate vessel anil freight and cargo. — See 63 A. D. 638. As to rights of Indorsee. — See 44 Cent. Dig. col. 39T>. ( 370. As to security for pre-exrstlng debt. — See 44 C>Mit. Dig. \VM-;K of .ship .M.VV HVIMHUKC.VTK. The owner of a ship may hypothecate it or It.s freightage, upon bottomry, for any lawful purpf).se. and at any lime and i)Iaee. IliMtoryi Enact-(l March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. As to bottomry and respondentia, ace note §3017. .into. §301J). >VHK> MASIKK }\ \\ IH roTIIFC.VTK SHIT. The master of a ship may hypothecate it upon bottomry only for the purpose of procuring repairs or supplies which are neces- 1509 §§3020-3023 CIVIL CODE. [Div.III.Pt.IV. sary for accomplishing the objects of the voyage, or for secur- ing the safety of the ship. History: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 64 pars, annotation. As to bottomry and respondentia, see note § 3017, ante. § 3020. SAME. [WHEN OWNER CANNOT BE REACHED, ETC.] 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 obtain any upon the personal credit of the owner, and when previous communication with him is precluded by the urgent necessity of the case. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. § 3019 and note. As to bottomry and respondentia, see note § 3017, ante. § 3021. WHEN MASTER MAY HYPOTHECATE FREIGHT MONEY. The master of a ship may hypothecate freightage upon bottomry, under the same circumstances as those which authorize an hypothecation of the" ship by him. History: Enacted March 23, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to bottomry and respondentia, see note § 3017, ante. §3022. RATE OF INTEREST. Upon a contract of bot- tomry, the parties 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. As to bottomry and respondentia, see note § 3017, ante. § 3023. RIGHTS OF LENDER, WHEN NO NECESSITY FOR BOTTOMRY EXISTED. A lender upon a contract of bottomry, 1510 1 Tit.XI V.ch.IV.] RETURN OF LOAN— Dl'E WHEN. §g 3024-3026 made by the master of a ship, as such, may enforce the con- tract, though the circumstances necessary to authorize the master to hypothecate the ship did not in fact exist, if. after due diligence and inquiry, the lender had reasonable Krounds to believe, and did in pood faith believe, in the existence of such circumstances. IIlMturyt Enacted March 21, 187:;. See Kerr's Cyc. C. C. for 23 pars, annotation. A8 to bottomry anil respondentia, see note i 3017, ante. As to owner's liability for niastt^r's contracts, sue 16 A. D. 440. §8024. STIPULATION' FOR PERSONAL LIAHILITV VOIO. A stipulation in a contract of bottomry, imposing any lia- bility for the loan independent of the maritime rislvs, is void. IliHioryt Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 para, annotation. A« f,, l,,.ti..iiirv Mil.! r.sp..>ii|.i>i i'l «•■.■ n..fo 5?.iilT mito §:{(H».-). >V1IK> MONKV LOANKU IS TO liK KKPAIO. In ca.so of a total loss of the thing hypothecated, from a ri.-^k to which the loan was subject, the lender upon bottomry can recover nothlnp:; in case of a partial loss, he can recover only to the extent of the net value to the owner of the part saved. lllMlorv: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. As to Ixittomry and r>j«p"ndentln. nee note f 3017. ftnt«». §30l»«. >VHK> BOTTO.MKY L(»A> HL(OMKS IH K. I nless It is oIluMwI.se expressly agreed, a bottomry loan becomes due immediately upon the termination of the risk, although a term of credit Is specified in the contract Ilii«i>r>i Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. As »■> i...ii.>inry and respondentia, see note |T"'' •nto. 1511 §§ 3027-3029 CIVIL CODE. [Div.III,Pt.IV. §3027. BOTTOMRY LIEN, HOW LOST. A bottomry lien is independent of possession, and is lost by omission to en- force it within a reasonable time. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. As to bottomry and respondentia, see note § 3017, ante. §3028. PREFERENCE OF BOTTOMRY LIEN OVER OTHER LIENS. A bottomry lien, if created out of a real or apparent necessity, in good faith, is preferred 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 subse- quent lien for salvage. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to bottomry and respondentia, see note § 3017, ante. § 3029. PRIORITY OF BOTTOMRY LIEN. Of two or more bottomry liens on the same subject, the latter in date has preference, if created out of necessity. History: Enacted March 21, 1872. As to bottomry and respondentia, see note § 3017, ante. As to second bottomry bond, see Kerr's Cyc. C. C. § 3029, note; also note § 317, ante. 1512 Tit.XIV.ch.V.l HKSPONDENTIA. §§3036-3038 CHAPTER V. RESPONDENTIA. i 3036. Hfspondontla, what. 8 3037. lit'spondontia by owner. § 3038. }iTI.V, WH.VT. Respondentia is a con- tract ])}• which a cargo, or some part thereof, is hypothecated as security for a loan, the repayment of which is dependent on maritime risks. IllNtory: Enact. d March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. As to bottomry and respondentia, see note 5 3017, ante. § 8037. RESPO>'DEMI.i HY OWNER. The owner of cargo may hypothecate it ui)on respondentia, at any time and place, and for any lawful purpose. Hlatoryi Enacted March 21, 1872. As to bottomry and respondentia, see note ji 3017, ante. As to owner's rlRlits. see Kt-rr's Cyc. C C. |301S ami note. §.30.3S. KESIM»M)E>TI.V BV .MA.STEK. The master of a ship may hypothecate it.s cargo ui)i)n resp«)ndentia only in a case in which he would be authorized to hypothecate the ship and freightage, but is unable to borrow sufficient 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 benefiting the cargo thereby. Hiatorys Enacted March 21, IST.'. As to bottomr> and respondentia, see note I 3017. ante. As to master's authority, see Kerr's Cyc. C. C. If 3019, S03C and notes. 1513 §§ 3039, 3040 CIVIL CODE. [Div.III,Pt.IV. § 3039. RATE OF INTEREST. The provisions of sections three thousand and twenty-two to three thousand and twenty- nine apply equally to loans on respondentia. History: Enacted March 21, 1872. As to bottomry and respondentia, see note § 3017, ante. As to priority, see Kerr's Cyc. C. C. § 3029 and note. As to rate of interest, see Kerr's Cyc. C. C. § 3022 and note. § 3040. OBLIGATIONS OF SHIP-OWNER. 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. History: Enacted March 21, 1872. As to bottomry and respondentia, see note § 3017, ante. As to obligations of ship-owner to owner of cargo sold, see Kerr's Cyc. C. C. § 2385 and note. As to personal responsibility of master, see Kerr's Cyc. C. C. § 2383 and note. 1514 Tit.XIV.ch.VI.] VENFxurs LIEN. §3046 CHAPTER VI. OTHER LIENS. S 3046. Lien of seller of real property. I 3047. When transfer of contract waives lien. § 3048. Extent of seller's lien. S 3049. Lien of seller of personal property. g 3050. Purchaser's lien on real property. § 3051. Lien upon personal property for services performed. § 3052. Liens on personal property. [Lienholder may sell.] i 3053. Lien of factor. § 3054. Banker's lien. I 3055. Shipmaster's lien. § 3056. Seamen's lien. S 3057. Officer's lion. S 3058. Judg-ment lien. S 3059. Mechanic's Hen. 13060. Lien on ships. I 3061. Lien of workmen on thre.>iliiniQr machines, etc. I 3062. Lien of person in charge of stallion, etc. § 3063. Claimant of lien must (lie verified claim. Such claim a notice to suhsefiuent purchasers. 8 3064. Action to enforce lien. S 3065. "Logger's lien. T'pon what lien suhsists. Lion ceases, when. § S04«. MEN OF SELLER OV KEAL PRCJPEKTY. Ono who sella real property has a vendor's Hen thereon, independent of possession, for so much of the price as remains unpaid and unsecured otherwise than by the personal obllRation of the buyer. IllMtiTM EiiiHf.d March 21, 1872. See Kerr's Cyc. C. C. for 47 pars, annotation. 57 C. 467, 471 (applied); 87 C. 619. 625, 22 A. S. 272, 25 V. 91?. 920 (construed and applied) : 89 C. 89. 93, 24 P. 608. 13 I* 187 (construed): 98 C. 30, 33, 32 P. 807 (con.^trued) : 116 C 264. 259. 48 P. 73 (referred to); 119 C. 364. 372. 373. 51 P. 549. 955 (ap- plied); 123 C. 208. 212. 65 P. 791 (applied); 125 C. 357. S60. 7S A. S. 47. 58 P. 16 (applied — purpose of 15 3046. 3047. and 3018 wnn to make equity rule as to vendors' lions more clear and defi- nite). As to distinction between vendor's lien In executory con- tract of sale and after title has passed, sec 1 A. S. 256. 1516 § 3047 CIVIL CODE. [Div.III,Pt.IV. As to effect of execution sale of vendee's interest in land under contract of purchase, see 89 A. D. 370. As to enforcement of vendor's lien, see 77 A. D. 101; 7 L. 35. As to execution of vendor's lien by statute of limitations, see ante § 2911; also 73 A. D. 469; 31 A. S. 41; 95 A. S. 663. As to priority of vendor's lien on property of insolvent cor- poration, see 71 A. S. 384. As to priority of vendor's lien over dower, see 46 A. D. 69; note 4 L. 606. As to priority of vendor's lien over mortgage, see 73 A. D. 203. As to rig-ht of purchaser at sale under vendor's judgment for purchase money, see 62 A. D. 368. As to right of vendor to maintain an ejectment, see 50 A. D. 232. As to sale on execution of lien reserved for purchase money, see brief 6 L. 708. As to vendor's lien in favor of third person, see 56 A. S. 227; 86 A. S. 178; 9 L. 173. As to vendor's lien on homestead, see 86 A. S. 174. As to waiver of vendor's lien, see 12 A. D. 263; 28 A. D. 199; 39 A. D. 202; 60 A. D. 559; 81 A. D. 156. As to waiver of vendor's lien by married woman, see brief 9 L. 97. As to waiver of vendor's lien by reserving title, see 73 A. D. 196. As to waiver of vendor's lien by taking note, see 77 A. D. 101; 13 L. 187. As to waiver of vendor's lien by taking personal security, see 17 A. D. 157; 77 A. D. 101; 81 A. D. 241. § 3047. WHEIV TRANSFER OF CONTRACT WAIVES LIE?f. 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. Historys Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 74 C. 583, 585, 16 P. 504, 505 (construed); 87 C. 619, 625, 22 A. S. 272, 25 P. 919, 920 (construed and applied); 89 C. 89, 93, 24 P. 608, 13 L. 187 (construed); 123 C. 208, 212, 55 P. 791 (referred to in discussing lien of vendor of real property); 125 C. 357, 360, 73 A. S. 47, 58 P. 16 (construed — purpose of §§ 3046, 3047, 1516 Tit.XlV.ch.Vl.] LIEX OX PERSONALTY. §§3048.3049 and 3048 was to make equity rule as to venrlors' liens more clear and definite). As to assignment of note for purchase price of land where vendor reserves title, see 65 A. S. 548; brief 58 L. 700. As to assignment of vendor's lien, see 12 A. D. 263; 28 A. D. 199; 60 A. D. 559: 81 A. D. 156; 90 A. D. 300; 13 L. 188. As to assignment of vendor's lien by assignment of note, see 43 A. D. 153; 52 A. D. 435; 81 A. D. 241. As to right of assignee to vendor's lien, see 33 A. D. 130. § 3048. EXTEM OF SELLER'S LIEN. The liens defined in sections three thousand forty-six and three thousand and fifty are valid against every one claiming under the debtor, except a purchaser or encumbrancer in good faith and for value. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 125 C. 357, 360, 73 A. S. 47, 58 P. 16 (construed — purpose of §§ 3046, 3047, and 3048 was to make equity rule as to vendors' liens more clear and definite. As to notice of vendors' lien, see 60 A. D. 560. As to validity of vendor's lien against bona fide purchaser, see 17 A. D. 157; 17 A. D. 808: 43 A. D. 152. S3049. LIEN OF SELLER OF PERSONAL PROPERTY. 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. HlHtory: Enacted March 21, 1872. See Kerr's C.vc. C. C. for 6 pars, annotation. 77 C. 139, 144, 19 P. 260 (referred to in applying 8 3311t: 94 C. 5, 17, 29 P. 406, 409 (referred to in applying §3311); 106 C. 441, 445, 39 P. 853 (construed): 121 C. 244, 246, 53 P. 656 (con- strued); 143 C. 436. 438. 77 P. 144 (applied); 3 C. A. 561. 569. 86 P. 820 (referred to — no lien, legal or equitable, exists whenK As to lien of vendor of personalty, see 83 A. S. 451. As to lien on personalty, against purchaser without notice, see 59 L. 738. As to waiver of lien upon personal property by attachment or execution, see 50 L. 714. As to waiver of vendor's Hen on personalty, see 50 A. D. 760. 1517 §§3050,3051 CIVIL. CODE. [Div.III,Pt.IV. § 3050. PURCHASER'S LIEN OIV REAL PROPERTY. 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 back, in case of a failure of consideration. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 87 C. 49, 55, 25 P. 249, 250 (applied); 103 C. 287, 289, 293, 35 P. 768, 37 P. 392 (construed); 113 C. 656, 664, 45 P. 872 (con- strued); 125 C. 357, 360, 58 P. 16, 73 A. S. 47 (referred to in § 3048, quoted). As to vendee's lien for money paid on contract, see 4 L. 247. As to vendee's lien for reimbursement, see 12 A. D. 313. § 3051. LIEX UPON PERSONAL PROPERTY FOR SERV- ICES PERFORMED. Every person who, while lawfully in possession of an article of personal property, renders 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 compensation, if any, which is due to him from the owner for such service; 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 retain possession of the same until the charges are paid; and livery or boarding or feed-stable proprietors, and persons pasturing horses or stock, have a lien, dependent on possession, for their compensation in caring for, boarding, feeding, or pasturing such horses or stock; and laundry pro- prietors and persons conducting a laundry business have a general lien, dependent on possession, upon all personal prop- erty in their hands belonging to a customer, for the balance due them from such customer for laundry work; and veteri- nary proprietors and veterinary surgeons shall have a lien, dependent on possession for their compensation in caring for, boarding, feeding and medical treatment of animals. 1518 Tit.XIV.Ch.VI.] LIEN-HOLDER'S SALE. § 3052 HiMtorj-: Enacted March 21, 1872; amended March 29. 1878. Code Amdts. 1877-8, p. 89; amended March 1, 1907. Stats, and Amdts. 1907, p. 85. See Kerr's Cyc. C. C. for 12 pars, annotation. 53 C. 351, 353 (construed); 22 P. 973, 974 (applied); 100 C. 408. 410, 38 A. S. 301. 34 P. 959 (construed); 121 C. 8, 9, 66 A. S. 17. 53 P. 404, 43 L. 524 (applied); 148 C. 61. 62. 82 P. 845 (con- strued — what cannot be judicially inserted into section); 1 C. A. 79, 81 (construed); 1 C. A. 116, 119. 81 P. 661, 662 (applied- lien for unpaid labor on personal property). As* to existence of agister's Hen, see 6 L. 82; brief 44 L. 456. As to lien on personalty for services rendered, see 37 A. D. 522; 38 A. D. 668; 60 A. S. 191; 69 A. S. 300; 69 A. S. 127. As to priority of agister's lien over chattel mortgage, see 17 L. 792. As to priority of lien for services on chattels, see brii-f, 40 L. 761, 762. As to statute giving lien for damages done by estrays dam- age feasant, see Hen. G. L., p. 21. As to waiver of bailee lien, see ante § 2910; also 63 A. D. 413. As to waiver of agister's lien, see ante § 2910. As to waiver of agister's lien by attachment or execution, see 50 L. 720; brief 44 L. 461. As to who are laborers, see 32 A. R. 264; 58 A. S. 303. § 3052. LIE>S ON PEKS(» AL PK(H»KUTY. [LIE>.1H>LI>- EK MAY SELL.] If the person entitled to the lien provided for in section three thousand and fifty-one of this code be not paid the amount due and for which said lien is given, within twenty days after the same shall have become due, then such lien-holder may proceed to sell said property, or so much thereof as may be necessary to satisfy said lien and costs of sale, at public auctif)n, [Xoti'co of sale.] .And by Riving, at least ten days' previous notice of such sale l)y advertising is some newspapor pub- lished in the county in which such iiroperty is situated; or. if there be no newspaper published in such county, then by post- ing notices of the sale In three of the most public places In the town or place where such property is to be sold, for ten days previous to the date of sale. The proceeds of the sale niusl be applied to the disrharge 1519 §§ 3053-3055 CIVIL CODE. [Div.III.Pt.IV. of the lien and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 418, held unconstitutional, see history, § 4 ante; amended March 1, 1807, Stats, and Amdts. 1907, p. 86. See 'Kerr's Cyc. C. C. for 4 pars, annotation. 92 C. 656, 658, 28 P. 687, 688 (applied); 121 C. 8, 9, 66 A. S. 17, 53 P. 404, 43 L. 524 (applied); 1 C. A. 79, 81 (construed) ; .1 C. A. 116, 119, 81 P. 661, 662 (applied— lien for unpaid labor on personal property). §3053. LIEN OF FACTOR. 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 intrusted to him by the same principal. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 22 P. 973, 974 (applied). As to factor's lien, see 13 A. D. 299; 58 A. D. 167; 49 A. S. 781; 54 A. S. 100. As to waiver of lien by refusal to deliver, see Kerr's Cyc. C. C. § 2910 and note. §3054. BANKER'S LIEN. A banker has a general lien, dependent on possession, upon all property in his hands belonging to a customer, for the balance due to him from such customer in the course of the business. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 63 C. 359, 364 (construed); 4 C. A. 201, 204, 87 P. 467 (applied — lien of bank upon policy of insurance). As to banker's lien bills indorsed to them for collection, see 88 A. D. 174. As to banker's lien on deposit, see 42 A. R. 168; 4 A. S. 202. As to liens of corporation on stock, see ante §303; also 57 A. S. 393. §3055. SHIPMASTER'S LIEN. The master of a ship has a general lien, independent of possession, upon the ship and 1520 Tit.XIV.ch.VI.] OFFICER'S LIEN. §§3056-3059 freightage, for advances necessarily made or liabilities neces- sarily incurred by him for the benefit of the ship, but has no lien for his wages. HiNtory: Enacted March 21, 1872. 52 F. 652, 653, G54, 655, 656 (cffnstrued — maritiiii.> lion for master's wages — § 813 C. C. P. controls — case revir.sed in 57 F. 845); 57 F. 845, 847, 848, 849, 850 (construed — master has no lien for wages — effect given to both § 813 C. C. P. and S 3055 C. C, the latter prevailing — reversing 52 F. 652). As to Hen of master on freight for advances, see 22 A. D. 556. As to master's lien on freight for freiglitage, see Kerr's Cyc. C. C. § 2144 and note. § 3056. SEAMEN'S LIEX. The mate and seamen of a ship have a general lien, independent of possession, upon the ship and freightage, for their wages, which is superior to every other lien. IliNtory: Enacted March 21, 1872. As to liens of seamen on sl.ips, see Kerr's Cyr. C. C. P. §813. § 3057. OFFICER'S LIEN. An officer who levies an attach- ment or execution upon personal property acquires a sj>ecial lien, dependent on possession, upon such property, which authorizes him to hold it until the process is discharged or satisfied, or a judicial sale of the property Is had. lliNtt^ryt Enacted Marcli 21, 1ST2. As to attachment and executinn, see Ki^rr's Cy- , <' '' P. 88 542. 682, 6SS, 690 and notes. S305S. Jl'Dii.MKNT LIEN. The lien of a judgment is regu- lated by the code of civil procedure. IliNtory: Enacted March 21, 1872. As to lien of judgment, sec Kerr's Cyc. C. C. P. | 671 and note. §3059. MECIIAMC'S LIEN. The liens of mechanics, for materials and services upon real property, am regulated by the code of civil procedure. 1521 §§3060,3061 CIVIL CODE. [Div.III.Pt.IV. History: Enacted March 21, 1872; repealed by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 418, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 11 pars, annotation. As to lien of laborer on street railroad, see brief 11 L. 693. As to mechanic's lien, see, Kerr's Cyc. C. C. P. §§ 1183-1203 and notes. As to priority of liens of laborers on property of railroad corporation, see 54 A. S. 423. § 3060. LIEJf ON SHIPS. Debts amounting to at least fifty dollars, contracted for the benefit of ships, are liens in the cases provided by the code of civil procedure. History: Enacted March 21, 1872; repealed by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 418, held unconstitutional, see history, § 4 ante. As to liens on ships, see Kerr's Cyc. C. C. P. §§ 813 et seq. and notes. § 3061. LIEN OF WORKMEN ON THRESHING MACHINES, ETC. Every person performing work or labor in, with, about, or upon any barley crusher, threshing machine or engine, horsepower, wagon, or other appliance thereof, while engaged in crushing or threshing, has a lien thereon to the extent of the value of his services. Such lien extends for ten days after any such person ceases such work or labor; provided, within that time, an action is brought to recover the amount of the claim. If judgment is given in favor of the plaintiff in any such action, and it is further found that he is entitled to a lien under the provisions of this section, property subject thereto, or so much thereof as may be necessary, may be sold to satisfy such judgment; but if several judgments have been recovered against the same property for the enforcement of such liens, the proceeds of the sale must be divided pro rata among the judgment creditors. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 418, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 618; founded upon Act March 12, 1885, Stats, and Amdts. 1885, p. 109. 1522 Tit.XIV.Ch.VI.] FILING CLAIM OF LIEN. §§ 3062. :im:'. See Kerr's Cyc. C. C. for 7 pars, annotation. 75 C. 199, 201, 16 P. 885 (Stats. 1885. p. 109. construed); 104 C. 10. 11. 37 P. 626 (Stats. 1885, p. 109. constriud); 1 1 6 C. 292. 293. 48 P. 123 (construed); 125 C. 171,. 173, 57 P. 775 (Stats. 188.".. p. 109, construed and applied); 141 C. 93. 94. 74 P. 548 (Stats. 1885, p. 109, construed). §3062. LIEN OF PERSON IX ('n.VR(iE OF STALLION, ETC. Every owner or person having in charge any stallion, jack, or bull, used for propagating purposes, has a lien for the agreed price of its service upon any mare or cow and upon the offspring of such service, unless some wilfully false representation concerning the breeding or pedigree of such stallion, jack, or bull has been made or published by the owner or person in charge thereof, or by some other person., at the request or instigation of such owner or person in charge. IliNtory: Enacted by Code Commission, Act Maroli 16. 1901. Stats, and Amdts. 1900-1, p. 419; hold unconstitutional, see his- tory, § 4 ante; re-enacted March 21. 1905. p. 617; a codlflcatlon of § ], Act March 11. ISOl. St.its. and Amdts. 1801, p. 90. §30(53. CLAI.U.VNT iiV LIEN .MIST HIK VEHIFIEI) CLAI.n. SITH CLAOI A NOTICE TO SIBSEQIENT WW- CHASERS. Every claimant of a lien provided for in the |>ro- ceding section must, within ninety days after the service on account of which the lien is claimed, file in the office of the county recorder of the county where the mare or cow subject thereto is kei)t. a verified claim containin.g a particular description of the mare or cow. the date and place of service, the name of the owner or reputed owner of such mare or cow. a description by name, or otherwise, of the stallion, jack, or bull performin.g the service, the name of the owner or person in charge thereof, and the amount of the lien claimed. Such claim, so filed, is notice to subsequent purchasers and encum- brancers of such mare or cow and of the offspring of such service for one year after such filing. IIlMtftry: Eiiarttd by Code Commission. Act March 16. 1901. Stats, and Amdts. 1900-1. p. 419. held unconstitiitlonnl. s«^e history, | 4 ante; re-enacted March 21, 1905, State, and Amdts. 1523 §§3064,3065 CIVIL CODE. [Div.III.Pt.IV. 1905, p. 618; a codification of § 2, Act March 11, 1891, Stats, and Amdts. 1891, p. 91. § 3064. ACTIOIV TO ENFORCE LIEN. An action to enforce any lien created under section thirty hundred and sixty-two may be brought in any county wherein any of the property subject thereto may be found, and the plaintiff is entitled to the remedies provided in sections thirty hundred and forty- four and thirty hundred and sixty-five upon complying with such sections, both of which are hereby made applicable to the proceedings in such action. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 419, held unconstitutional, see liis- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 619; founded upon §§ 3, 4, Act March 11, 1891, Stats, and Amdts. 1891, p. 91. § 3065. LOGGER'S LIEN. UPON WHAT LIEN SUBSISTS. LIEN CEASES, WHEN. A person who labors at cutting, haul- ing, rafting, or drawing logs, bolts, or other timber, has a lien thereon for the amount due for his personal services, which takes precedence of all other claims, to continue for thirty days after the logs, bolts, or other timber arrive at the place of destination for sale or manufacture, while such logs, bolts, or other timber are in the county in which such labor was performed. The lien hereby created ceases and determines unless the claimant thereof, within twenty days from the time such labor is completed, brings suit to foreclose the same. The plaintiff in any such suit, at the time of issuing the summons or at any time afterwards, may have the logs, bolts, or other timber upon which such lien subsists attached, as provided in this code, upon delivering to the clerk an affi- davit by or on behalf of the plaintiff, showing that defendant is indebted to the plaintiff upon a demand for labor performed, either in the cutting, hauling, rafting, or drawing such logs, bolts, or other timber, and 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 attach- 1524 -1 |i Tit.XlV.ch.VlI.] STOPPAUK IN TRANSITU. §3076 ment is not sought, and the action is not brought, to hinder, delay, or defraud any creditor or creditors of the defendant. History: Enacted by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 419; held unconstitutionaJ, see Jiis- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 619; founded upon Act March 30, 1878, Stats. 1877-8. p. 747, as amended April 12, 1880, Stats. 1880, p. 38, and Marcli 8, 1887, Stats, and Amdts. 1887, p. 53. See Kerr's Cyc. C. C. for 4 pars, annotation. 62 C. 483, 484 (construed); 67 C. 422, 423, 7 P. 845 (construed). As to lien on logs for value of work of horse or team, see 69 A. S. 510. As to validity of statute making- purcliaser of logs subject to lien personally liable therefor, see brief 59 L. 738, 740. CHAPTER VII. 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. WHEN CO>SI(ii>OR MAY STOP (J § 2114 ante; nlso 3 L. 647; 4 \,. 732: 11 L. 347; 26 Encyc. L. 1079. As to actual possession by vendee necessary t» defeat right, see 60 A. R. 52. As to attachment during transit, effect of, see 19 A. R. 91. 1525 § 3076 CIVIL CODE. tDiv.III,Pt.IV. As. to attachment, execution, or other lien against purchaser not defeating right, see 29 A. D. 393. As to bill of lading in hands of holder as evidence of own- ership, see Kerr's Cyc. C. C. §2126 and note par. 3; 29 A. D. 392, 393; 19 A. R. 91, 92. As to carrier, when agent of vendee, see 29 A. D. 391. As to consignor's lien for unpaid purchase price of goods, see Kerr's Cyc. C. C. § 2118 and note par. 11. As to effect of vendor's taking note as security, see 29 A. D. 387. As to exercise of right by factor, see 29 A. D. 385. As to exercise of right of stoppage in transitu, who entitled to, see 29 A. D. 385; 19 A. R. 87, 88. As to note, taking of, as security, part payment, etc., see 29 A. D. 387. As to origin of right of stoppage in transitu, see 29 A. D. 388. As to part payment not defeating right, see 29 A. D. 387. As to right of consignor being favored, see 19 A. R. 87. As to right of stoppage in transitu, origin of, etc., see 29 A. D. 384. As to rights and equities of bona flde assignee of bill of lading, see Kerr's Cyc. C. C. § 2127 and note. As to rights of vendee after stoppage in transitu, see 19 A. R. 87. As to stoppage in transitu against assignee of bill of lading in good faith and in usual course of business, see Kerr's Cyc. C. C. § 2118 and note par. 10. As to stoppage in transitu in general, see 3 L. 647; 11 L. 347. As to surety not entitled to exercise right, see 29 A. D. 385. As to time in which right of stoppage in transitu may be ex- ercised, see Kerr's Cyc. C. C. § 2118 and note par. 13. As to transit, when begins, see 29 A. D. 387. As to transit, when ends, see Kerr's Cyc. C. C. § 3078 and note. As to vendor or quasi vendor being only person who may exercise right, see 29 A. D. 385, 386. As to waiver of right by attachment or execution, see Kerr's Cyc. C. C. § 3079; 50 L. 721. As to warehouse receipt, delivery or sufficient prima facie to pass title, see Kerr's Cyc. C. C. § 2128 and note par. 4. Accrual of right of— As to, generally, see 26 Encyc. L. 1084. Same — Buyer must be insolvent. — See 26 Encyc. L. 1089. Same — Goods must be in transit. — See 26 Encyc. L. 1086. Same — Goods must be unpaid for. — See 26 Encyc. L. 1084. Definition of.— See 23 A. D. 607; 77 A. D. 284; 22 A. S. 711; 75 A. S. 26; 11 L. 347; 26 Encyc. L. 1079; 7 W. & P. 6669. Effect of exercise of right of. — See 34 A. S. 531; 26 Encyc. L. 1117. 1526 Tit.XIV.Ch.Vir.] INSOLVENCY OF CONSIGNEE. § 3077 Exercise of right of. — See 77 A. D. 284; 26 Encyc. L. 1114- 1117. In consig-nment for sale. — See 43 Cent. Dig. col. 1137, §826. In insolvency of buyer — As to, generally, see 43 Cent. Dig. col. 1138, § 827. Same — Evidence of insolvency. — See 43 Cent. Dig. col. 1139, § 830. Same — Knowledge by seller of insolvency. — See 43 Cent. Dig. col. 1139, § 829. Same — Where sale is on credit. — See 43 Cent. Dig. col. 1138. § 826. In sale on credit and non-payment of price. — See 43 Cent. Dig. col. 1137, § 825. Liability of carrier — For refusal or failure to stop goods In transitu. — See 9 Cent. Dig. col. 198, § 246. Same — To consignee or purchaser from consignee. — See 9 Cent. Dig. col. 201, § 250. Limitation of right of. — See 26 Encyc. L. 1083. Loss of right of. — See 2 Obiter Dig. 755. Power of consignor to stop delivery. — See 9 Cent. Dig. col. 198, §245; 4 Decen. Dig. p. 125, §74. Right of carrier to retain goods for charges due by con- signee. — See 9 Cent. Dig. col. 199. § 247. Right of stoppage in transitu — As between seller and buyer. — See 43 Cent. Dig. col. 1136, §§824 et seq.; Decen. Dig. tit. "Sales." §§ 289-299. Same — Nature of right of, in general, see 41 A. R. 247: 43 Cent. Dig. col. 1136, §824; 26 Encyc. L. 1079; 48 L. 50. Same — When and by whom may be exercised. — See 29 A. D. 384; 19 A. R. 87; 1 A.S. 312. Same — When terminates. — See 60 A. R. 51. Right of, waiver of by attachment, etc. — See 50 L. 721. Termination of right of — As to generally, see 29 A. D. 489; 60 A. D. 188; 75 A. S. 26: 26 Encyc. L. 1091-1114; 7 W. & P. 6671. Same — Where there has been constructive delivery only. — See 33 A. D. 617. When right exists. — See 2 Obiter Dig. 754. §8077. WHAT IS INSOLVENCY OF CONSIGNEE. A per- son is insolvent, within the meaning of the last secti stoppage in tr.ansitu, see note § 3076, ante. 1629 As to ir As to --' i-t- see no3 P M_ '< § 3078 CIVIL, CODE. CDiv.III,Pt.IV. TITLE XV. riABLE INSTRUMENTS. e Instruments in General, §§ 3086-3165. Ixchange, §§ 3171-3238. T Notes, §§ 3244-3248. § 3254, 3255. V. Bank Notes, and Certificates of Deposit, §§ 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. Excuse of Presentment and Notice, §§3155-3160. VII. Extinction, §§ 3164, 3165. ARTICLE I. GENERAL DEFINITIONS. § 3086. To what instruments this title is applicable. § 3087. Negotiable insti'ument, what. § 3088. Must be for unconditional payment of money. Attor- ney's fees and costs. § 3089. 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. TO WHAT INSTRUMENTS THIS TITLE IS APPLI- CABLE. The provisions of this title apply only to negotiable instruments, as defined in this article. History: Enacted March 21, 1872. 1530 I Tit.XV,ch.I,art.I.] BILLS, BONDS. NOTES. ETC. §3086 See Kerr's Cyc. C. C. for 3 pars, annotation. 94 C. 141, 145, 29 P. 866 (construed). NEGOTIABLE INSTRUMENTS — GENERALLY. As to bills of excliang-e, see Kerr's Cyc. C. C. §§3095, 3171 i-i seq. and notes; also note § 3171, post. As to bonds, bank notes, and certificates of deposit, see Kerr's Cyc. C. C. §§ 3261 et seq. and notes. As to checks, see Kerr's Cyc. C. C. §§ 3254 et seq. and notes; also note § 3254, post. As to dislionor of negotiable instruments, see Kerr's Cyc. C. C. §§ 3141 et seq. and notes. As to excuse of presentment and notice, see Kerr's Cyc. C. C. §§ 3155 et seq. and notes. As to extinction of negotiable instruments, see Kerr's Cyc. C. C. §§ 3164 et seq. and notes. As to indorsement of negotiable instruments, see Kerr's Cyc. C. C. §§ 3108 et seq. and notes. As to interpretation of negotiable instruments, etc., see Kerr's Cyc. C. C. §§ 3099 et seq. and notes. As to presentment of negotiable instruments for payment, see Kerr's Cyc. C. C. §§ 3130 et seq. and notes. As to promissory notes in general, see Kerr's Cyc. C. C. §§ 3244 et seq. and notes; also note § 3244, post. As to what instruments in form negotiable by additional pro- visions become non-negotiable. — See 25 L. 363; 5 W. & P. 4768. Bill of lading as. — See note § 2126, ante; 32 A. D. 541; 93 A. I). 208; 9 A. S. 504; 27 A. S. 861; 54 A. S. 672; 82 A. S. 771; 1 L. 650; 50 L. 235; 20 L. ed. 779; 25 L. ed. 892; 38 L. ed. 944; 1 \V. & P. 791. Bonds issued by railroad company as. — See 1 L. 299. Bottomry bond as a. — See note §3007, ante; 5 W. & P. 4768. Certificate of deposit as a. — See 2 W. & P. 1030. Certificate of stock as a. — See 2 W. & P. 1032. Commercial law, in general. — See 2 Obiter Dig. 317. County of school warrant as a. — See 11 A. S. 327; ."i \V. AL- V. 4768. Coupons detached from bond as. — See 1 L. 299. Definition of.— See 49 A. R. 705; 74 A. S. 582; 80 -V. i^. •1»U . 21 Encyc. L. 525; 8 L. 393; 25 L. 363; 52 L. 363; 5 W. & P. 4767. Draft 'or order as a. — See 51 A. S. 402; 32 L. 590; 5 W. & P. 4768. Execution, delivery and transfer — Consideration. — See 2 Obiter Dig. 320. Same— Delivery.— See 2 Obiter Dig. 320. Same — Negotiation and transfer — As to generally, see 2 Obiter Dig. 320. Same — Same — Bona fide purchaser, who is. — See 2 Obiter Dig. 321-324. 1531 § 3086 CIVIL CODE. [Div.III.Pt.IV. Same — -Same — Presumption as to bona fide holding and when burden of proof shifts. — See 2 Obiter Dig. 324-326. Same — Parties. — See 2 Obiter Dig. 319. Form of action on. — See 14 Encyc. P. 369. Joinder of cause of actions in suits on. — See 14 Encyc. P. 585. Joinder of party plaintiff in actions on. — See 14 Encyc. P. 442-445. Letter of credit as a. — See 5 W. & P. 4768. Municipal bonds as. — ^See 25 A. R. 273; 28 L. ed. 938; 5 W. •& P. 4768. Nature of instrument. — See 2 Obiter Dig. 317-319. Negotiable words. — See 21 Encyc. L. 525. Parties defendant in actions on. — See 14 Encyc. P. 445-461. Parties plaintiff in actions on.- — See 14 Encyc. P. 380-441. Pleading and practice. — See 14 Encyc. P. 462-582; 2 Obiter Dig. 348. Pleading or answer in actions on. — See 14 Encyc. P. 588-686. Proceedings in actions on after issue joinder. — See 14 Encyc. P. 690-706. Promissory notes as. — .See note § 3244, post. Railroad bond as. — See 5 W. & P. 4769. Rights, duties and liabilities of parties — In general, see 2 Obiter Dig. 326. Same — As to payment or discharge.— See 2 Obiter Dig. 326. Same — Acceptance, relation and liability of party on. — See 2 Obiter Dig. 327-329. Same — Accommodation paper and discounting.— See 2 Obiter Dig. 332. Same — Defenses as between immediate parties. — See 2 Obiter Dig. 348. Same — Effect of negotiation and defenses. — See 2 Obiter Dig. 343-346. Same — ^On indorsement. — See 2 Obiter Dig. 329-332. Same — Papers stolen fraudulently diverted and forged. — See 2 Obiter Dig. 346-348. Same — Presentment, demand and notice — Evidence. — See 2 Obiter Dig. 342. Same — Same— Method and sufficiency of. — See 2 Obiter Dig. 336-342. Same — Same — Necessity in general. — See 2 Obiter Dig. 333- 336. Savings bank deposit pass book as. — See 45 A. R. 653; 5 W. & P. 4769. Simultaneous and successive suits on. — See 14 Encyc. P. 367. Six classes of. — See 40 A. R. 705; 5 W. & P. 4767. United States bonds or notes as. — See 22 L. ed. 609; 5 W. & P. 4769. 1532 > Tit.XV,ch.I,ait.[.] DEFINITION. §3087 Venue in actions on. — See 14 Encyc. P. 377. Warehouse receipts as. — See note § 2986, ante; 89 A. D. 350; 50 A. R. 475; 5 W. & P. 4770. §3087. NEGOTIABLE INSTRUMENT, WHAT. A nego- tiable instrument is a written promise or request for the pay- ment of a certain sum of money to order or bearer, in con- formity to the provisions of this article. History: Enacted March 21, lS7i'. See Kerr's Cyc. C. C. for 22 pars, annotation. 55 C. 564, 566 (meaning of "instrument" — it does not embrace what): 64 C. 388, 391, 49 A. R. 705. 1 P. 349, 351 (construed and applied); 68 C. 545, 548, 9 P. 942, 944 (provision in note, for pay- ment of reasonable attorney's fee, destroys its uegotialtility ) : 81 C. 303, 327, 22 P. 665, 673 (construed as not applying): 82 C. 636. 639, 23 P. 53, 54, 7 L. 224 (construed and applied witli post § 3093) ; 103 C. 319, 324, 42 A. S. 117, 37 P. 401 (construed as not applying); 131 C. 385, 386, 63 P. 694. 695 (construed as not ap- plying); 51 F. 840, 848 (what does not deprive bond of ne- gotiable quality). As to alterations in negotiable instruments, see 17 A. R. 97-106; 79 A. D. 754. As to attorney's fee, provision for in instrument, as affect- ing question of negotiability, see Kerr's Cyc. C. C. § 3088 and note par. 2. As to condition not certain of fulfilment destroying nego- tiability, see Kerr's Cyc. C. C. § 3088 and note. As to fictitious payees, see Kerr's Cyc. C. C. §§ 3102, 3103 and notes. As to indorsement in general, see Kerr's Cyc. C. C. ii 31 OS et seq. and notes. As to indorsement, etc., when persumed to be made for valu- able consideration, see Kerr's Cyc. C. C. § 3104 and note. As to indorsements of negotiable instruments. In due course for value, and before maturity, etc., see Kerr's Cyc. C. C. | 3123 and note. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ante. As to negotiable Instruments given for accommodation, see 31 A. S. 745-757. As to negotiable Instruments in general, see 14 A. D. 421-427. As to negotiable Inslrximent In blank, see Kerr's Cyc. C. C. § 3125 and note. As to negotiable Instrument made payable to order of ficti- tious person, effect of, see Kerr's Cyc. C. C. $ 31">3 and note. 1533 §§ 3088, 3089 CIVIL CODE. [Div.III,Pt.IV. As to negotiable instruments procured through fraud and misrepresentation, see 41 A. R. 607-611. As to non-negotiable notes, see Kerr's Cyc. C. C. § 1459 and note. As to notes written in pencil, see 41 A. D. 755. As to rights of indorsee of negotiable instrument in due course, see Kerr's Cyc. C. C. § 3124 and note. As to words "to order" and "to bearer," see Kerr's Cyc. C. C. § 3101 and note. §3088. MUST BE FOR UNCOJfDITIONAL PAYMENT OF MONEY. ATTORNEY'S FEES AND COSTS. A negotiable instrument must be made payable in money only and without any condition not certain of fulfilment, except that it may pro- vide for the payment of attorney's fees and costs of suit, in case suit be brought thereon to compel the payment thereof. History: Enacted March 21, 1872; amended March 10, 1905, Stats, and Amdts. 1905, p. 96, by adding exception as to attor- neys' fees and costs. See Kerr's Cyc. C. C. for 26 pars, annotation. 74 C. 593, 596, 16 P. 505, 506 (applied); 82 C. 636, 639, 23 P. 53, 54, 7 L. 224 (construed and applied); 133 C. 681, 685, 65 P. 1110 (construed and applied); 51 F. 840, 848 (what does not deprive bond of negotiable quality). As to action upon negotiable promissory note or bill of ex- change transferred in good faith, etc., before maturity, not being subject to set-off or other defense, see Kerr's Cyc. C. C. P. § 368 and note. As to assignment and transfer of note and mortgage and right of set-off or defense of assignee on non-negotiable in- struments, see Kerr's Cyc. C. C. P. § 368 and note. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. § 3089. PAYEE. The person to whose order a negotiable instrument is made payable must be ascertainable at the time the instrument is made. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 51 F. 840, 848 (what does not deprive bond of negotiable quality). As to indorsement in general, see Kerr's Cyc. C. C. §§ 3108 et seq. and notes. 1534 i Tit.XV,ch.I,art.I.] INALTERNATIVE— DATE. §§ 3090. 3091 As to indorsement wholly or partly blank, effect of, see Kerr's Cyc. C. C. § 3125 and note. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ante. As to negotiable instrument made payable to order of maker, or of fictitious person, see Kerr's Cyc. C. C. § 3102 and note. As to negotiable instruments executed in blank, seo 2 A. R. 341. 342; 11 A. S. 316-318. As to wrongfully filling blank in negotiable instrument, see 11 A. S. 316-318. §3090. INSTRUMENT MAY BE IN ALTERNATIVE. A negotiable instrument may give to the payee an option between the payment of the sum specified therein and the performance of another act; but as to the latter, the instrument is not within the provisions of this title. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ante. As to negotiable instrument, requirement that same must be made payable in money only, see Kerr's Cyc. C. C. § 3088 and note. § 3091. DATE, ETC. A negotiable instrument may be with or without date, and with or without designation of the time or place of payment. HIiHfory: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 5 pars, annotation. 51 F. 840, 848 (what does not deprive bond of n.prntlMble quality). As to antedating nc-gotialilo Instrument, soe Kerr's Cyc. C. C. § 3094 and note. As to date of negotiable instrument, whether past, pn^sont. or future, sec Kerr's Cyc. C. C. § 3094 and note. As to indorsement, liability of indorsers, etc., see Kerr's Cyc. C. C. U 3108 et seq. and note. As to many miscellaneous matters as to negotiable Instru- ments, see note S 30S6, ante. As to negotiable instrument not specifying time of payment being payable Immediately, see Korr's Cyc. C. C. § 3099 and note. 1535 §§ 3092, 3093 CIVIL CODE. [Div.III,Pt.IV. As to place of payment, see Kerr's Cyc. C. C. §§ 3100, 3130, 3131 subd. 4 and notes. As to place of payment of negotiable instruments in general, see Kerr's Cyc. C. C. §§ 3100, 3130, 3131 subd. 4 and notes. As to time of payment, see Kerr's Cyc. C. C. § 3248 and note. §3092. MAT CONTAIJf A PLEDGE, ETC. A negotiable instrument may contain a pledge of collateral security, with authority to dispose thereof. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to diligence required for collection upon collateral se- curity given with negotiable paper, see 34 A. D. 451, 452. As to foreclosure of redemption by judicial sale of pledged property, see Kerr's Cyc. C. C. § 3011 and note. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. As to pledgee's authority to sell property pledged, see Kerr's Cyc. C. C. §§ 3000-3007 and notes. As to pledgee's riglit to purchase property pledged, see Kerr's Cyc. C. C. § 3010 and note. As to power of sale conferred by mortgage upon mortgagee or any other person, and exercise thereof, see Kerr's Cyc. C. C. § 2932 and note. As to sale by order of pledgeor of pledged property before claim of pledgee is due, see Kerr's Cyc. C. C. § 3009 and note. As to surplus upon sale of pledged property, disposition of, see Kerr's Cyc. C. C. § 3008 and note. As to title of pledged property, see Kerr's Cyc. C. C. §§ 2888 and 2986 and notes. § 3093. WHAT IT MUST NOT CONTAIN. A negotiable in- strument must not contain any other contract than such as is specified in this article. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 64 C. 388, 391, 49 A. R. 705, 1 P. 349, 351 (cited); 68 C. 545, 548, 9 P. 942, 944 (provision in note, for payment of reasonable attorney's fee, destroys its negotiability); 82 C. 636, 639, 23 P. 53, 54, 7 L. 224 (construed and applied with §3087); 131 C. 385, 386, 63 P. 694 (construed and applied with §3087); 133 C. 681, 685, 65 P. 1110 (applied); 51 F. 840, 848 (what does not de- prive bond of negotiable quality). 1536 Tit.XV,ch.I,art.I.] DATE— CLASSES. §§ 3094. 3095 As to attorney's fees, stipulations in note for, etc., see Kerr's Cyc. C. C. § 3088 and note par. 2. As to many miscellaneous matters as to negotiable instru- ments, see note 8 3086, ante. As to negotiable Instruments giving payee option between payment and performance of another act, see Kerr's Cyc. C. C. § 3090 and note. § 3094. DATE. Any date may be inserted by the maker of a negotiable instrument, whether past, present, or future, and the instrument is not invalidated by his death or incapacity at the time of the nominal date. HlMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 145 C. 82, 84, 78 P. 340 (construed). As to many nil.scfllaneous matters as to negotiable instru- ments, see note § 3086, ante. § 3005. PIFFEREM (LASSES {)¥ >E(Jd»: 77 C. 63R. 641. 11 A. S. 327. 20 P. 294. 295 (construed and applied); 130 C. 542, 548, 62 P. 1059 (construed and applied). As to b.nnk-notes, see Kerr's Cyc. C. C. f 3261 and note. A.s to bills of exchange, see Kerr's Cyc. C. C. H 3171 el neq. and notes. As to bills of lading, negotiability of, sec K«rr's «'>.-. C. C. § 21 27 and note. As to bonds, see KTS rVYAHKE TU A rEHSO> OK HIS OKDKH, HOW ( ONSTIU'KH. An iiisu-uineiit. otherwise neRo- tiable 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 i)erson, and in the latter case payable to the bearer. MiNtcTy: Enuctod March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 61 C. 346. 347, 44 A. R. 553 (construed). As to many miscellaneous matters as to Tugotlahk- instru- ments, see note § 3086, ante. §3102. IMNDOHSED >OTE, WHEN NEGOTIABLE. A negotiable instrument, made jtayable to the order of the maker, or of a fictitious person, if issued by the maker for a valid consideration, without indorsement, has the same effect against him and all other persons having notice of the facts as if payable to the bearer. IIiNll^ry: Kiiacti-.l Mar. li 21, 1S72. See Kerr's Cyc. C. C. for 3 pur.s. annotation. 54 C. 110 (construed and api'lled). As to many miscellaneous matters as to negotlalOe Instru- ments, see note S 3086, ante. As to negotiable instrum<'nt pnyahlo to order of fU-tltious person, efTect of, sei- K<-rr's t'yi-. C C | 310:5 and note. As to payee of ni-Kot lal>l«' l?i«i iiini.-'ii f"'*ral. see 65 A. It. 472. 4V4. As to many miscellaneous matters as to nefcutiable Instru- ments, see note ji 3086, ante. As to payee In general, see Kerr's Cyc. C. C. i 3089 and not*. IB.*?!* § 3104 CIVIL CODE. [Div.III.PtlV. § 3104. PRESUMPTION OF CONSIDERATION. The signa- ture of every drawer, acceptor, and indorser of a negotiable instrument is presumed to have been made for a valuable consideration, before the maturity of the instrument, and in the ordinary course of business. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 64 C. 410, 413, 415, 1 P. 495, 874 (construed and applied); 106 C. 651, 655, 40 P. 8 (applied with other sections); 139 C. 665, 667, 73 P. 543 (construed and applied); 6 C. A. 88, 92, 91 P. 532 (it is presumed that notes were indorsed before maturity and for valuable consideration). As to consideration of written instruments in general being presumed, see Kerr's Cyc. C. C. § 1614 and note. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. As to want of consideration for undertaking of maker, etc., effect of, etc., see Kerr's Cyc. C. C. § 3122 and note. 1540 Tit.XV.ch.I.art.ITI.] INDORSEMENT. §3108 ARTICLE III. INDORSEMENT. §3108. Indorsement, what. § 3109. Agreement to indorse. S 3110. When may be made on separate paper. §3111. Kinds of indorsement. § 3112. General indorsement, wliat. § 3113. Special indorsement, what. S 3114. General indorsement, how made special. § 3115. Destruction of negotiability by Indorser. §3110. Implied warranties of indorser. §3117. Indorser, when lial)le to payee. §3118. Indorsement witliout recourse. § 3119. Same. [Effect of.] § 3120. Indorsee privy, to contract. §3121. Riglits of accommodation indor.«tr (i-.j.. 1 1..] > § 3122. Effect of want of consideration. §3123. Indorsee in due course, wliat. § 3124. Riglits of Indorsee in due course. §3125. Instrument left blank. §310S. INDORSEMENT, WHAT. One who writes his name upon a negotiable instrument, otherwise than as a maker or acceptor, and delivers it, with his name thereon, to an- other person, is called an indorser, and his act is called indorsement. IliNtory: Enacted March 21, 1872. Sl note. Indorser before delivery, liability to payee. — See Kerr's Cyc. C. C. § 3117 and note. Maker and indorser of note as Joint debtors. — See 66 A. S. 690. 1541 §§3109-3112 CIVID CODE. [Div.III.Pt.IV. Parol testimony respecting negotiable instruments. — See 15 A. S. 287; 56 A. S. 668. Same — To vary contract of indorsement. — See 39 A. R. 116; 9 A. D. 381-385; 7 A. S. 366. §3109. AGKEEMEJiT TO INDORSE. One who agrees to indorse a negotiable instrument is bound to write his signa- ture upon the back of tlie instrument, if tliere is sufficient space thereon for that purpose. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 87 C. 616, 617, 25 P. 918 (referred to). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. §3110. WHEN MAY BE MADE ON SEPARATE PAPER. When there is not room for a signature upon the back of a negotiable instrument, a signature equivalent to an indorse- ment thereof may be made upon a paper annexed thereto. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 87 C. 616, 617 (referred to), 25 P. 918; 126 C. 107, 110, 77 A. S. 153, 58 P. 447 (cited). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. § 3111. KINDS OF INDORSEMENT. An indorsement may be general or special. History: Enacted March 21, 1872. §3112. GENERAL INDORSEMENT, WHAT. A general indorsement is one by which no indorsee is named. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. As to indorsement of negotiable paper by one not holder or payee, see 29 A. D. 297-299; 56 A. D. 358, 359. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Indorsement in blank of non-negotiable note.^ — See 13 A. D. 55-57. 1542 Tit.XV.ch.I.art.ITI.] INDORSEMENT— WARRANTY. §§ 3113-3116 §3113. SPKdAL IXDOKSEMENT, WHAT. A special in- dorsement specifies the indorsee. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 139 C. 564, 580, 96 A. S. 169, 73 P. 456 (cltedV As to many miscellaneous matters as to negotla>)le Instru- ments, see note § 3086, ante. §3114. GENERAL INDORSEIFEM, HOW MADE SPE- CI.VL. A negotiable instrument bearing a general indorse- ment cannot be afterwards sj)ecially indorsed; but any lawful holder may turn a general indorsement into a special one, by writing above it a direction for payment to a particular per- son. III.H\ OF XEGOTIAHILITY HV IN- DORSE R. A special indorsement may, by express words for that purpose, but not otherwise, be so made as to render the instrument not negotiable. HiNtory: Enacted Marrli 21. 1S72. Sop Kerr's Cyc. C. C. for 3 pars, annotation. 139 C. 564, 580. 96 A. S. 169. 73 P. 456 (citod wifli Hji 311.1. 3115). As to many misicllaneinis matters as to nogotialilo Inntru- monts. see note 8 3086. ant.-. §3110. l.nrUEH »AKRA.M1E.S OF l.NDOR.SFH. IJvery iiidorser of a negotiable instrument, unless his Indorsement is qualified, warrants to every subsequent holder t hereof . 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 i)arties are binding upon them. 1543 § 3116 . CIVIL CODE. [Div.III.Pt.IV. 4. That if the instrument is dishonored, the indorser will, upon notice thereof duly given to him, or without notice, where it is excused by law, pay the same with interest, unless exonerated under the provisions of sections thirty-one hun- dred and eighty-nine, thirty-two hundred and thirteen, thirty- two hundred and forty-eight, or thirty-two hundred and fifty-five. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 263. See Kerr's Cyc. C. C. for 36 pars, annotation. 56 C. 442, 445 (referred to); 81 C. 507, 510, 22 P. 883, 884 (con- strued); 103 C. 319, 324, 42 A. S. 117, 37 P. 401 (construed); 132 C. 480, 482, 64 P. 853 (cited); 134 C. 237, 242, 66 P. 326 (cited); 139 C. 564, 574, 580, 584, 96 A. S. 169, 73 P. 456, 457 (cited); 147 C. 166, 170, 81 P. 402, 404 (cited); 151 C. 723, 729, 91 P. 616 (one who is at all times bound to pay a note is not entitled to recourse against one who is liable only to sub- sequent holders); 151 C. 754, 759, 81 P. 620 (cited); 1 C. A. 516. 520, 82 P. 560 (cited). As to exoneration of guarantors, see Kerr's Cyc. C. C. § 2819. As to implied warranty under indorsement "without recourse," see Kerr's Cyc. C. C. § 3118, note. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Acceptance of bill of exchange admits signature of drawer. — See Kerr's Cyc. C. C. § 3199 and note. Excuse of presentment and notice. — See Kerr's Cyc. C. C. §§ 3155-3160 and notes. Forgery of note or indorsement. — See 49 A. D. 315, 316. Indorsement — Admits and guarantees genuineness of signa- tures. — See 49 A. D. 315. Same — After maturity. — See 12 A. D. 611. Same — Procured by fraud. — See 4 A. R. 240-243. Same — "Without recourse," duties and liabilities of indorser. —See 7 A. S. 365. Rights and obligations of drawer of bill of exchange. — See Kerr's Cyc. C. C. § 3177 and note. That contract of indorser is conditional, being contingent upon true presentment at maturity, and due notice in case of non- payment, see Kerr's Cyc. C. C. §§ 3141-3151 and notes. That contract of principal debtor is absolute to pay at ma- turity, and that no presentment is necessary to charge him, see Kerr's Cyc. C. C. § 3130 and note. ' Want or failure of consideration, effect of. — See Kerr's Cyc. C. C. § 3122 and note. 1544 Tlt.XV,ch.I,art.III.] indorsement. §§3117-3119 §3117. INDORSEE, WHEN LIABLE TO PAYEE. One who indorses a negotiable instrument before it is delivered to the payee, is liable to the payee thereon, as an indorser. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 5 pars, annotation. 62 C. 484, 487 (applied); 77 C. 476, 478, 19 P. 882, 883 (construed with other sections); 87 C. 616, 617, 25 P. 918 (applied); 94 C. 96, 104, 28 A. S. 94, 29 P. 415 (construed); 120 C. 688, 689. 690. 691, 53 P. 258 (construed); 125 C. 684, 685 (applied to joinder of Indorsers as co-defendants, but erroneously cited as § 2117), 58 P. 297, 298 (correct citation); 132 C. 480, 482, 64 P. 853 (cited); 133 C. 574, 576, 65 P. 1094 (cited); 44 P. 482 (cited): 147 C. 166, 170, 81 P. 402 (applied). As to guaranty, in general, see Kerr's Cyc. C. C. §§ 2787 et seq. and notes. As to liability upon guaranty of conditional obligation, see Kerr's Cyc. C. C. § 2808 and note. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Indorsement, before delivery, by one not a party — Evidence to define liability.— See 2 A. R. 475; 27 A. R. 580-582; 29 A. D. 297- 299; 72 A. S. 676-684. Indorsc-r and indorsement defined. — See Kerr's Cyc. C. C. $ 3108 and note. §3118. IXDOKSEAIEM WITHOLI KECOLKSE. An in- dorser may qualify his indorsement with the words, "with- out recourse," or equivalent words; and upon such indorse- ment, he is responsible only to the same extent as in the case of a transfer without indorsement. IIIMoryt Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 4 pars, annotation. As to indorsement "without recourse," see 87 A. D. 389-391; 7 A. S. 365. As to many miscellaneous matters as to negotiable instru- ments, see note 5 3086, ante. §3119. SAME. [EFFECT OF.] Except as otherwise pre- scribed by the last section, an ipdorsement. without recourse, has the same effect as any other indorsement. Hlntoryi Enacted March 21. 1872. 1545 §§ 3120-3123 CIVIL CODE. [Div.III.Pt.IV. As to many niiscellaneous matters as to negotiable instru- ments, see note § 3086, ante. See Kerr's Cyc. C. C. § 3118 and note. §3120. INDORSEE PKIVY TO CONTRACT. An indorsee of a negotiable instrument has the same rights against every prior party thereto that he would Tiave had if the contract had been made directly between them in the first instance. History: Enacted March 21, 1872. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ante. Collateral security to indorser inures to benefit of creditor. — • See 27 A, D. 720. Memorandum upon bills or notes, effect of. — See 14 A. D. 232, 234. That collateral security passes with transfer of bill or note, see Kerr's Cyc. C. C. § 2936 and note. §3121. RIGHTS OF ACCOMMODATION INDORSER (re- pealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 263. §3122. EFFECT OF WANT OF CONSIDERATION. The want of consideration for the undertaking of a maker, acceptor, or indorser of a negotiable instrument does not exonerate him from liability thereon to an indorsee in good faith for a consideration. Htstory: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 17 pars, annotation. 64 C. 410, 413, 1 P. 495, 874 (cited); 83 C. 173, 175, 23 P. 286, 287 (referred to); 106 C. 651, 655, 40 P. 8 (cited). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. § 3123. INDORSEE IN DUE COURSE, WHAT. An indorsee in due course is one who, in good faith, in the ordinary course of business, and for value, before its apparent matur- rity or presumptive dishonor, and without knowledge of its 1546 Tit.XV,ch.I,art.III.] indorsement in course. §.3124 actual dishonor, acquires a negotiable instrument duly in- dorsed to him, or indorsed generally, or payable to the bearer. HLsfory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 54 C. 107. 109 (referred to); 68 C. 545, 548. 9 P. 942. 944 (cited); 69 C. 142. 144, 10 P. 331. 332 (cited): 83 C. 173. 175, 23 P. 286. 287 (cited); 106 C. 651, 655, 40 P. 8 (qited); 128 C. 313, 320, 60 P. 933 (referred to); 71 P. 87. 89 ("cited). As to apparent maturity, see ICerr's Cyc. C. C. $ 3132 and note. As to demand and notice, see Kerr's Cyc. C. C. §3116 and note. As to many miscellaneous matters as to negptlable instru- ments, see note § 3086, ante. As to presumptive dislionor, see Kerr's Cyc. C. C. § ."^ISS and note. As to rule of apparent maturity, concerning du-i-k-s. compare this section witli §§ 3134, 3255. Bona fide holders, and their rislits. — Sec 9 A. D. 272. 273; 26 A. D. 156-158; 35 A. R. 688-691. Dilig-ence as to collection required of holder of nejarotiable paper taken as collateral security. — See 34 A. D. 451. 452. Rights of holder wlio has received Instrument merely as col- l.Ttoral security. — See 47 A. D. 182; 71 A. D. 499. Uulo applical)Ie to checks. — See post § 3255. Tiiat taking of negotial)le paper, liefore maturity, in payment of, or as collateral security for pre-existing debt, is taking it for value, see cases collected in 89 A. D. 411. Writing Imports consideration. — See Kerrs Cyc. C. C. §3122 and note. ssiiM. ]{n;Mis OF indouskk in Dli: (OntSK. .\n indorsee of a negotial)le instrument, in due course, acquires ;in absolute title thereto, so that it is valid in bis hands, not- withstanding any provision of law making it generally void or voidal)le. and notwithstanding any defect in the title of the i)erson from whom bo acquired it. IIlNtory; Enacted March 21. 1872. See Kerr's Cyc. C. <^. for 35 par.«». annotation. 68 C. 545, 548 (applied I>ut erroneously cited as 1(3134). 9 P. 942, 944 (correct citation); 69 C. 142. 144, 10 P. 331. 332 (cited); 106 C. 651. 655, 40 P. 8 (cited); 128 C. 313. 320. 58 P. 322, 60 P. 933 (referred to). As to actions by asslgrnee or indorsee, see Kerrs Cyc. C. C. P. § 368 and note. 1547 § 3125 CIVIL CODE. [Div.III.Pt.IV. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. As to transfer of non-negotiable instruments, see ante § 1459 and note. As to wiietlier any defenses exist against holder in due course, see Kerr's Cyc. C. C. § 1459, and Kerr's Cyc. C. C. P. § 3368 and notes. §3125. INSTRUMENT LEFT BLANK. One who makes himself a party to an instrument intended to be negotiable, but which is left wholly or partly in blank, for the purpose of filling afterwards, 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 nego- tiable in form. HLstory: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to ascertaining name of payee, see Kerr's Cyc. C. C. § 3089 and note. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. 1548 Tit.XV.ch.I.art.IV.] demand OF payment. §§3130,3131 ARTICLE IV. PRESENTMENT FOR PAYMENT. i 3130. Effect of want of demand on principal debtor. S 3131. Presentment for payment, how made. S 3132. Apparent maturity, when. i 3133. Presumptive dishonor of bill, payable after sight. I 3134. Apparent maturity of bill, payable at sigrht. Ji 3135. Apparent maturity of note. i 3136. Same. [After .sipht or demand.] S 3137. Surrender of In.strument, when a condition of payment. §3130. EFFKCr OF AVAM OF DEM.\>D ON VUIM I I'M, DKBTOK. It Is not necessary to make a demand of payment upon the principal debtor in a negotiable Instrument in order to charge him; but if the instrument Is by its terms payable at a specified place, and lio is able and willing to pay It there at maturity, such ability aiul willingness arc equivalent to an offer of payment upon his part. HiNtoryi Enacted March 21, ISrr. See Kerr's Cyc. C. C. for 13 pars, annotation. 79 C. 224, 229. 21 P. 745. 746 (cited); 82 C. 32. 33, 22 P. 87S (construed with { 3131. which section applies to Indorsor and not to maker of note>: 131 C. 187, 191, 82 A. S. 341, f.3 P. 4fi2. 463 (cited). As to Implied warranty nf Indorser, aoo Kerr'f C\ <-. r*. f. p. fl 311f> and note. As to Mjany mlscelljineous matters as to negotlablo instru- ments, SCO note I 3086. ante. Presentment — In case of acceptance for honor. — Sec Korr'« Cyc. C. C. P. SI 3206. 3207 and notes. Same — Not necessary to charjfc drawer In a bill drawn upon himself. — See K.rr's Cyc. C. C. P. i 3I.''i.'> subd. 3 and note. Same — Of bill of exchange for acceptance. — See Kcrr't Cyc. C. C. P. H 3186 et seq. and notes. Same — Of bill of exchange for payment. — See Kerr's Cyc C C P. in 3211 ct seq, and notes. Presentment ami demand where note is paynM'' ^' < pnrll<-nl«r time and place. — See 25 A. D. 340; 28 A. D. 335. §3131. PRESENT.MKVT FOR PAYMENT. IIO>> .MAOE. Presentment of a negotiable instrument for payment, when 1549 § 3131 CIVIL CODE. [Div.III,Pt.IV. necessary, must be made as follows, as nearly as by reason- able diligence it is practicable: 1. The instrument must be presented by the holder, or his agent; 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 busi- ness, of the principal 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 busi- ness, of the principal debtor, or wherever he may be found, at the option of the presenter; 5. The instrument must be presented upon the day of its maturity, or, if it is payable on demand, it may be pre- sented upon any day. It must be presented within reason- able hours; and if it is payable at a banking house, within the usual banking hours of the vicinity, but, by the consent of the person to whom it should be presented, it may be presented at any hour of the day; 6. If the principal debtor has no place of business, or if his place of business, or residence, cannot, with reasonable dili- gence, be ascertained, presentment for payment is excused. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 263; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 420, held uncon- stitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 620. See Kerr's Cyc. C. C. for 20 pars, annotation. 64 C. 410, 422, 1 P. 495, 496, 874 (applied in main opinion, and construed on p. 422, dis. op.); 79 C. 224, 229, 21 P. 745, 746 (cited); 82 C. 32, 33, 34, 22 P. 878 (construed with other sections — § 3131 applies to indorser and not to maker, of note); 107 C. 282, 285, 40 P. 430 (applied); 151 C. 754, 758, 759, 91 P. 620 (subd. 5 cited). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. 1550 Tit.XV.ch.I.art.IV.] dishonor. §§ 3132-3134 As to place of presentment, see 15 A. D. C43, 644; 25 A. D. 340. As to reasonable diligence, see Kerr's Cyc. C. C. {§3155, 3158, 3213 and notes. Bills of exchange, where payable. — See Kerr's Cyc. C. C. { 3176, Plac# of presentment, what sufficient. — See 24 A. R. 160, 161; 15 A. U. 643. 644. Presentment of liills of exchange for acceptance. — See Kerr's Cyc. C. C. §§ 3185 et seq. and notes. Same — For payment. — See Kerr's Cyc. C. C. § 3211 et seq. and notes. §3132. APP.VKENT 3I.\TriUTY, >VHE>. The apparent maturity of a ne^otialile iiistniineiit, i)ayal)le at a particMilar time, is the daj' on which, by its terms, it becomes due. or when that is a holiday, the next business day. IliMtory: Enacted MarrJi 21. 1S72. See Kerr's Cyc. C. C. for 9 pars, annotation. 64 C. 410, 412, 1 V. 495, 874 (referred to). As to due diligence in malting demand, see 11 A. D. 217. 218. As to many misct-llaneou.s malti-r.s .-i.s tti n.oroi hiMf instru- ments, see note g 3086. ante. SSirW. PHKSr.Ml'TIVE DISIIOXHt OF HILL, PAY.VBLE AFTEK SUillT. A bill of exchange, i)ayable at a certain time after sight, which is not accepted within ten days after its date, in addition to the time which would siifhce, with ordi- nary diligence, to forward it for acceptance, 1.^ iiresumed to have been dishonored. Hiwtory: Knactod March 21. 1S72. See Kerr's Cyc. C. <'. tnr 6 pars, annotation. As to many miscellaneous matters as to negotinblo Iniitru- ments. see imte § 30St',. ante. S31.'{1. .U'PAHF.NT .MATrUITY (M HIM.. r.V\Alll.l. Ai SKilIT. The apparent maturity of a bill of exchange, pay- able at sight or on demand, is: 1. If it bears interest, one year after its date; or. L*. If it does not bear Interest, ten days after its date, in addition to the time which would sufTlce, with Drdlnary dili- gence, to forward it for acceptance. Illntory: Knactod March 21. 1872. 1551 §§ 3135-3137 CIVIL CODE. [Div.III,Pt.IV. See Kerr's Cyc. C. C. for 2 pars, annotation. 68 C. 545, 548 (erroneously cited for § 3124), 9 P. 942, 944 (cor- rect citation). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. • Presentment — Where delay in does not exonerate. — See Kerr's Cyc. C. C. § 3214 and note. Same — Rule as to checks. — See Kerr's Cyc. C. C. § 3255 subd. 1 and note. Promissory notes payable on demand. — See 80 A. D. 250-254. § 3135. APPARENT MATURITY OF NOTE. The apparent maturity of a promissory 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 rnonths after its date. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 74 C. 362, 363, 364, 16 P. 19, 20 (referred to); 79 C. 224, 229, 21 P. 745, 746 (construed with other sections); 22 P. 673, 675 (in- dorser is entitled to waive notice of dishonor when); 82 C. 32, 34, 22 P. 878 (construed with other sections — § 3135 applies to indorser and not to maker of note); 98 C. 323, 326, 35 A. S. 172, 33 P. 204, 206, 20 L. 580 (referred to); 6 C. A. 197, 201, 91 P. 759 (cited — what is necessary to charge indorsers). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Presentment not made in time, and not excused, exonerates indorsers. — See Kerr's Cyc. C. C. § 3248 and note. § 3136. SAME. [AFTER SIGHT OR DEMAND.] 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. History: Enacted March 21, 1872. § 3137. SURRENDER OF INSTRUMENT, WHEN A CONDI- TION OF PAYMENT. 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 instrument and 1552 Tit.XV,ch.I.art.V.] DISHONOR, what is. 5 3141 does retain it, then that a receipt for the amount paul, or an exoneration of the party payinc:, be written thereon; or, 3. If the instrument is lost or destroyed, then that the holder Rive to him a bond, executed by himself and two Bufflcient sureties, to indemnify him against any lawful claim tliereon. IliMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 82 C. 550, 557, 22 P. 1115, 1117. 1118 (applied;. As to many misoellanfous niallt-rs as to negotiable instru- ments, see note ( 3086, ante. ARTICLK V. DISHONOR OF NEGOTIABLE INSTRUMENTS. I 3141. Dishonor, what. I 3142. Notice, by whom jflven. §3143. Form of notice. I 3144. Notice, Jiow servod. 13145. Notice, bow scrvtd after Indorscr's death. 13146. Notice given in Ignorance of death, valid. f 3147. Notice, when to \>e glv«n. I 3148. Notice of dishonor, when to \>o ni.ill'<| I 3149. Notice, how given by agent. 13150. Additional time foiM». or without presentment, where that i8 excused. Illaturri Enacted March 31. Ifl72. See Kerr's Cyc. C. C. for 2 pars, annotation. 161 C. 754. 759. 91 P. 620 (cited). As to many misrelJaneotis matterr> inonts. SCO note f 3086. ante. Dishonor — By non-payment of Interest. — Sec 30 A. It. :u|-;*»J. 100 A. D. 196-199. Same — Of hill by nnn-acceptnnre.— S< ■ SI 3187. 3188, 8194 and notes. 15B3 §§ 3142-3144 CIVIL CODE. [Div.III.Pt.IV. Same — Of foreign bills of exchange, damages allowed. — See Kerr's Cyc. C. C. §§ 3234, 3238 and notes. Same — Payment or acceptance to prevent.— See 92 A. D. 578- 580. §3142. NOTICE, BY WHOM GIVEN. Notice of the dis- honor 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 taking it up, have a right to reimbursement from the party to whom the notice is given. Hijstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 55 C. 406, 407 (construed with otlier sections). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Bill of exchange, protest of. — See post § 3228. Notice — Of dislionor to acceptor for honor. — See post §§ 3206, 3207. Same — Of protest. — See post § 3225. § 3143. FORM OF NOTICE. A notice of dishonor may be given in any form which describes the instrument with rea- sonable certainty, and substantially informs the party receiv- ing it that the instrtiment has been dishonored. Hi-story: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 55 C. 406, 407 (construed with other sections); 57 C. 327, 330 (cited). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Dishonor of foreign bills of exchange — Notice of. — See post § 3225. § 3144. NOTICE, HOW SERVED. 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 1554 » Tit.XV.ch.I.art.V.] NoTlCH. SKliVlci-: of. §j} .'{HG. 3146 of residence or business of such party. ai>i)arently acting for him; or, 3, By properly folding tlie notice, directing it to tlie party to be charged, at his i)lace of residence, according to the best information that the person giving the notice can obtain, depositing it in the post office most conveniently accessible from the place where the presentment was made, and paying the postage thereon. IIlNtury: Knacted Manh 21. 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. T,7 C. 327. 330 (rcforred to); 62 C. 26<>. 2fi2 (r.-f.-rrcl to). f,3 C. 367. 368 (cited): 86 C. 449, 456. 25 P. 16. 17. 10 L. ^A'y (cited). As to personal notice, see 38 A. D. 607. As to many niiaci-llaneous matters as to nf(^ollald<- ln.': Hnacli-d March 21. 1S72. See Kerr's Cyc. C. C. for 5 pars, annotation. 99 C. 143. 144. 33 P. 773 (r.'ferre IN K.NonVMi; Ol Iii.AIII. V.VLIl). A notice of dishonor sent to a i)arty after his death, but in ignorance thereof, and in good faith. Is valid. Hlatoryi Ennctod March 21, 1872. 1555 §§ 3147-3150 CIVIL CODE. [Div.III,Pt.IV. §3147. NOTICE, WHEN TO BE GITEN. Notice of dis- honor, when given by the holder of an instrument or his agent, otherwise than by mail, must be given on the day of dishonor, or on the next business day thereafter. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 147;- C. 166, 170, 81 P. 402, 404 (cited); 151 C. 754, 759, 91 P. 620 (cited). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. § 3148. NOTICE OF DISHONOR, WHEN TO BE MAILED. When notice of dishonor is given by mail, it must be depos- ited in the post office in time for the first mail which closes after noon of the first business day succeeding the dishonor, and which leaves the place where the instrument was dis- honored, for the place to which the notice should be sent. History: Enacted March 21, 1872. 151 C. 754, 759, 91 P. 620 (cited). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. §3149. NOTICE, HOW GIVEN BY AGENT. When the holder of a negotiable instrument, at the time of its dishonor, is a mere agent for the owner, it is sufficient 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 subagent, it is sufficient for each successive agent or subagent to give notice in like manner to his own principal. History: Enacted March 21, 1872. § 3150. ADDITIONAL TIME FOR NOTICE BY INDORSER. Every party to a negotiable instrument, receiving notice of its dishonor, has the like time thereafter to give similar notice to prior parties as the original holder had after its dishonor, 1556 Tit.XV,ch.I,art.VI.] NOTICE OF DISHONOR. §§3151,3155 Rut this additional time is available only to the particular party entitled thereto. History: Enacted Marcli 21, 1872. § 3151. EFFECT OF NOTICE OF DISHOXOR. A notice of the dishonor of a negotiable instrument, if valid in favor of the party giving it, inures to the benefit of all other parties thereto whose right to give the like notice has not then been lost. History: Enacted March 21, 1872. ARTICLE VI. EXCUSE OF PRESENTMENT AND NOTICE. § SIS!}. Notice of dishonor, when excused. § 3156. Presentment and notice, when excused. § 3157. Same. [Full security being received.] §3158. Delay, when excused. §3159. Waiver of presentment and notice. § 3160. Waiver of protest. §3165. NOTICE OF DISHOXOK, WHEN EX( ISED. Notice of dishonor is excused: 1. When the party by whom it should be given cannot, with reasonable diligence, ascertain either the jilace of residence or business of the party to be charged; or, 2. When there is no post-office 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, ?,. When the party to be charged is the same person who dishonors the instrument; or, 4. When the notice is waived l)y the party entitled thereto. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 13 pars, annotation. 86 C. 449, 457, 25 P. 16. 17. 10 L. 545 (cited). As to diligence, and excuse of presentment fur iiaynient. see Kerr's Cyc. C. C. § 3131 and note. As to notice by mall, see Kerr's Cyc, C. C. } 3144 and note. 1557 §§ 3156-3158 CIVIL CODE. [Div.III,Pt.IV. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. As to waiving- protest of foreign bill, see Kerr's Cyc. C. C. § 3232 and note. Presentment of bill, and notice of dishonor, when excused.— See Kerr's Cyc. C. C. § 3220 and note. Protest of foreign bill, waiver of. — See Kerr's Cyc. C. C. § 3232 and note. § 3156. PRESEjVTMENT AND NOTICE, WHEN EXCUSED. Presentment and notice are excused as to any party to a negotiable instrument who informs the holder, within ten days before Its maturity, that it will be dishonored. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 420, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 3 pars, annotation. 64 C. 459, 460, 2 P. 43, 44 (applied); 101 C. 478, 482, 36 P. 197 (construed). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. §3157. SAME. [FILL SECURITY BEING RECEIVED.] If, before or after the maturity of an instrument, an indorser has received full security for the amount thereof, or the maker has assigned all his estate to him as such security, presentment and notice to him are excused. History: Enacted March 21, 1872. See 'Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to negotiable in.stru- ments, see note § 3086, ante. As to waiver of demand and notice by taking security, see 4 A. D. 49, 50; 11 A. D. 67; 39 A. D. 95-99. § 3158. DELAY, WHEN EXCUSED. Delay in presentment, or in giving notice of dishonor, is excused when caused by circumstances which the party delaying could not have avoided by the exercise of reasonable care and diligence. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. As to diligence — In presentment of bills, see Kerr's Cyc. C. C. § 3213 and note. 1558 TitXV.ch.I.art.VI.] waivkk ok PROTEST. §§3159.3160 Same — In presentinent of notes, see Kerr's Cyc. C. C. { 3131 and note. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ante. Presentment of bill — Delay In, and Its effect. — See Kerr's Cyc. C. C. §§3213, 3214 and notes. Same — For acceptance, delay in, when excused. — See Kerr's Cyc. C. C. §§ 3219, 3220 and notes. * §3159. WAIVER i)V PRESENTMENT AM) NOTICE. A waiver of presentment waives notice nf dishonor also, unless the contrary is expressly stipulated; but a waiver of notice does not waive presentment. IliNtoryt Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 7 pars, annotation. As to many miscellaneous niatti'rs as tn ni-i;i)ti.iiii<- insuu- ments, see note § 3086, ante. That waiver of right to demand and notice on part of indoracr may be proved by parol testimony, see 57 A. D. 665-667. §31«0. WAIVER OF PROTEST. A waiver of protest on any negotiable instrument otlier than a foreign bill of ex- change waives presentment and notice. IliMiory: Enacted March 21, 1872. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ante. x . / ■ i Notice of dishonor of foreign bill, how given. — See Kerr's Cyc. C. C. § 3225 and note. Notice of protest of foreign lilll. — See Kerr- '"■•• '' '"" ' ' ' ' '■ and note. 1559 §§ 3164, 3165 CIVIL CODE. [Div.III.Pt.IV. ARTICLE VII. EXTINCTION OF NEGOTIABLE INSTRUMENTS. § 3164. Obligation of party, wlien extinguished. § 3165. Revival of obligation [repealed]. § 3164. OBLIGATION OF PARTY, WHEN EXTINGUISHED/ The obligation of a party to a negotiable instrument is extin- guished: 1. In like manner with that of parties to contracts in gen- eral ; or, 2. By payment of the amount due upon the instrument, at or after its maturity, in good faith and in the ordinary course of business, to any person having actual possession thereof, and entitled by its terms to payment. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 29 pars, annotation. 1 C. A. 659, 665, 82 P. 1075 (applied with other sections). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Obligations, extinction of, in general. — See Kerr's Cyc. C. C. §§ 1473 et seq. and notes. §3165. REVIVAL OF OBLIGATION (repealed). HLstory: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 264. 1560 Tit.XV.ch.ir.art.r.] BILLS. FORM. ETC. §3171 CHAPTER IT. 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 Payment, §§ 3211-3214. VII. Excuse of Presentment and Notice, §§3218-3220. VIII. Foreign Bills, §§3224-3238. ARTICLE I. FORM AND INTERPRETATION OF A HILL. § 3171. Bill of exchange, what. { 3172. Drawee, In case of need. { 3173. Bin In parts of a set. I 3174. When must be In a set. i 3175. Presentment, etc., of part of set. ft 3176. Bill, where payable. { 3177. Rl(?lits and oblierations of drawer. §:{I7L Itll.L OF EX('H.V>'GE, WHAT. A bill of exchanRp is an instrument, negotiablo in form, by which one. who Ih called the drawer, requests auother, calbMl ilio diawfc. to n.iv a specified sum of money. IIlNtorj-t Enacted March Zl, Hi',.:. .Sec Korr's Cyc. C C. for 9 pars, annotation. As to many nil.Tellanoons mutters as to n<>Kotlnb1e Instru- mi-nts. see noto j) 30S6, ante. lllLi.s oi' i',\4 II \\(;k. Acceptance of — As to. g'enorally. see 4 Knr>- Same — By parol. — See 44 A. D. 2B3. Same — Tmpllfd and constructive. — Se<» 4 Enry( i, . i .' ."^ame — Promise to accept. — See 4 Kncyc. I>. 233. Same — Qunllfled and conditional. — See 4 Encyc. L. 22 4. 1561 § 3171 CIVIL CODE. [Div.III.Pt.IV. Same — Supra protest or for honor. — See 4 Bncyc. L. 232. Same — Verbal acceptance and promise to accept as affected by the statute of frauds. — See 4 Encyc. L. 244. Same — Written and verbal. — See 4 Encyc. L. 213. Acceptor, defenses available to. — See 1 A. S. 135. As a bank check. — See 23 L. 173; 19 L. ed. 1008; 21 L. ed. 947; 35 L. ed. 481; 1 W. & P. 786. As an equitable assignment. — See 42 A. S. 921; 25 L. 523; 31 L. ed. 42-4-; 1 W. & P. 787; 3 W. & P. 2435. As order for payment of goods. — See 42 A. R. 799; 1 W. & P. 787. As payable out of general fund. — See 1 W. & P. 787. Bill and bank check distinguished. — See 2 Obiter Dig. 317. Bills drawn in sets. — See 2 Obiter Dig. 317. Bona fide holder of — Extent of right and protection of. — See 6 L. 502; 16 L. 45; 35 L. 161; 35 L. 464-470; 36 L. 434; 54 L. 451; 61 L. 206; 10 L. N. S. 482; 13 L. N. S. 426. Same— Who is.— See 9 A. D. 272; 44 A. D. 698; 35 A. R. 688; 10 L. 677; 12 L. 41; 61 L. 202; 5 L. N. S. 628; 17 L. N. S. 747. Capacity and autliority of parties. — See 4 Encyc. L. 162. Consideration for.- — See 4 Encyc. L. 186. Same — Imported. — See 1 W. & P. 787. Definition of. — See 14 A. D. 419; 80 A. D. 83; 21 A. R. 209; 39 A. R. 308; 46 A. S. 613; 57 A. S. 245, 266; 27 L. 222; 12 L. ed. 993; 2 Obiter Dig. 317; 1 W. & P. 317. Detention of by drawee as acceptance thereof. — See 17 L. N. S. 1266. Execution and delivery — As to generally, see 3 A. C. 559; 4 A. C. 639. Same — Parol evidence in conditional delivery. — See 3 A. C. 560. Foreign and inland bills. — See 2 Obiter Dig. 317. Formal essentials of.— See 4 Encyc. L. 81. Implied warranty of genuineness upon sale of. — See 36 L. 92. Liability of person signing as officer of corporation. — See 6 A. C. 1000. Lost or destroyed, right of action at law upon. — See 16 L. 205. Necessity of notice of dishonor of. — See 6 A. C. 280. Object and elfect of marginal figures on. — See 1 A. C. 611. Orderly parts and special clauses of. — ^See 4 Encyc. L. 128. Partial failure of consideration as a defense. — See 2 A. C. 430. Power of president and secretary of corporation to execute. — See 2 A. C. 520. Presentment and demanded place named as condition prece- dent to suit against maker. — See 7 A. C. 693; 13 L. N. S. 303. Presumption — And burden of proof in action by purchaser.- — • See 17 L. 326. Same — As to place of indorsement of. — See 5 A. C. 160. 1562 I Tit.XV.ch.Tr.art.I] DRAWER— BTT.T. IN PARTS. §§3172.3173 Release of drawor or indorser by rertiflmtlon of check. — Sco 9 L. N. S. 698. Retention of, or refusal to return, as acceptance thereof. — Seo 8 A. C. 612. Rigrht of action of nominal holder. — See 1 A- C. 833. Rights of holder of, transferred after niaturity.- 753-812. Subject to legal construction. — See 2 Obiter Dig. 31.S. Synonymous with draft. — See 3 W. & P. 2195. Time and notice of dishonor — Waiver of by taking security. — See 39 A. D. 95. Same — What excuses. — See 1 A. C. 99. Title acquired by payee of, fraudulently procured from m.iker. as subject to other defenses, by purchase after transfer to innocent third person. — See 8 A. C. 626. Validity — And effect of executed or indorsed lunatic. — See 4 A. C. 539. Same — Of in hand.s of bona fide holder where void by statute between original parties. — See 4 A. C. 353. Same — Of oral guaranty by transferer of. — See 2 A. C. TtOti. Written instrument imported. — See 82 A. S. 546; 1 W. & I". 787. §:n7-->. l)ia»l-t;, J.\ ( VSt of need, a l)ill of excUanp* may sive the name of any person in addition to tlie drawee, to be resorted to in case of need. IliMtory! Knacleil March 21. 1872. .•\s to many mlscellanef ••\cb:ini,'' note $ 3121, ante. Ah to many miscellaneous matter.-^ as to negotiable instru- ments, see note § 3080, ante. Acceptance or paynn-nt fur honor. — Se<' H .12(13-3207 and notes. Time of presentment to druwee in case of n<'<»d.— S*e Korr'S Cyc. C. r. 5 :?l.s.S an.l umI. . §317». Jill, I, 1> TAIMS OF \ Si;r. A bill of e.TchBnKO may be drawn in any number of parts, each part stating the existence of tlio others, and all forming one set. illntorM Knncted March 21, 1S72. As to many miscellaneous mnttfTs ns to billn «>f oxchnngv, •ec note i 3121, ante. .\s to many mlscellnneoiis mnttors nn to nogotlnhle instru- ments, see note { 30S6, ante. 1663 §§3174-3176 CIVIL CODE. [Div.III,Pt.IV. Damages allowed on dishonor of foreign bill. — See Kerr's Cyc. C. C. § 3234 and note. §3174. WHEN MUST BE IN A SET. An agreement to draw a bill of exchange binds the drawer to execute it in three parts, if the other party to the agreement desires it. Hi-story: Enacted March 21, 1872. §3175. PRESENTMENT, ETC., OF PART OF SET. Pre- sentment, acceptance, or payment, of a single part in a set of a bill of exchange, is sufficient for the whole. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Presentment — How made. — See Kerr's Cyc. C. C. §§ 31S6, 3187 and notes. §3176. BILL, WHERE PAYABLE. A bill of exchange is payable: 1. At the place where, by its terms, it is made payable. 2. If it specifies no place of payment, then at the place to which it is addressed. 3. If it is not addressed to any place, then at the pld,ce 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 reasonable dili- gence, be ascertained, presentment for payment is excused, and the bill may be protested for non-payment. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 264; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 420, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 620. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneovis matters as to negotiable instru- ments, see note § 3086, ante. 1564 I Tit.XV,ch.II,art.II.] DAYS OF GRACE. 3177,3181 Instrument in terms payable at specified place. — See Kerr's Cyc. C. C. § 3130 and note. §3177. RIGHTS A>D OBLIGATIONS OF DRAWER. 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 instrument. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 134 C. 237, 242, 66 P. 326 (applied). As to many miscellaneous matters as to bills of excliange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Implied warranty of indorser. — See Kerr's Cyc. C. C. §3116 and note. Indorsement — What constitutes. — See Kerr's Cyc. C. C. S 3108 and note. ARTICLE II. DATS OF GRACE. § 3181. Days of grace. §.3181. DAYS OF GRACE. Days of grace are not allowed. IliMtory: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 74 C. 362, 364, 16 P. 19 (referred to); 107 C. 282, 284. 4e TCprr'* f y**. <". C. ji 3130 and note. Presentment of part of set. — See Kerr's Tiote. §:ns7. 1»I{K.SK> TMEM TO .lOIM IH{A»tK.S. Prpsent- ment for acrp])taiu'e to one of sevt>ial joint drnwoe.s. and refusal Ijv him, dispenses with presontment to the others. Illatorrt Enacted March 21. 1872. As to many miscellaneous matters as to l)IIls of exchui.., . . note H 3121, ante. As to many miscellaneous matters as to noipotlnbic Instru- ments, see note ( 3086, ante. §31SS. WHFN IMIKSKM'MKNT T(> KF MADF TO I>H.V>VFE !>■ r.VSF OF .NFFI). A l)ill of t-xchanp' which .s|)ocifies a drawee in case of need, must be presented to him for acceptance or payment, as tlie case may he, liefore It can l»e treated as dishonored. IlUtor.i ! Knaetrd March 21. IK72. As to hill of exchaiiKe naming drawei- Kerr's Cyc. C. C J 3172 anil note. As to many miscellaneous nuitt >- r ments. see note | 3086. ante. s:n**!». ri{i:sr,N I Ml N I. \niiin mini hi >i\i>i. \vh«»n a Itill of exrliaime i.s payablt' at a speriHetl litn- :hl. the drawer and indorsers are exonerated if it is !■ • .ted 1667 §§ 3193, 3194 CIVIL CODE. [Div.III.Pt.IV. for acceptance within ten days after tlie time which would sufhce, with ordinary diligence, to forward it for acceptance, unless presentment is excused. History: Enacted March 21, 1872. ARTICLE IV. ACCEPTANCE. § 3193. Acceptance, how made. § 3194. Holder entitled to acceptance on face of bill. § 3195. What acceptance sufflcient with consent of holder. § 3196. Acceptance by separate instrument. § 3197. Promise to accept, when equivalent to acceptance. § 3198. Cancelation of acceptance. § 3199. What is admitted by acceptance. § 3193. ACCEPTANCE, HOW MADE. An acceptance of a bill must be made in writing, by the drawee or by an acceptor for honor, and may be made by the acceptor writing his name across the face of the bill, with or without other words. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 12 pars, annotation. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. As to necessity to give notice of acceptance, see 39 A. R. 221- 227. Acceptance of negotiable instruments. — See 1 A. S. 135-138. Honor — Acceptance or payment for. — See Kerr's Cyc. C. C. § 3203 and note. § 3194. HOLDER ENTITLED TO ACCEPTANCE ON FACE OF BILL. The holder of a bill of exchange, if entitled to an acceptance thereof, may treat the bill as dishonored if the drawee refuses to write across its face an unqualified accept- ance. History: Enacted March 21, 1872. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. 1568 Tit.XV,ch.II,art.IV.] acckftance. §{3195.3196 As to many miscellaneous matters as tu nogotiablo Instru- ments, see note § 3086, ante. Acceptance — Sufflciency of. — See Kerr's Cyr. C. C. { 3195 and note. Conditional acceptance. — Sec Kerr's Cyc. C. C. i 2193 and note par. 12. Separate instrument — Acceptance in. — See Kerr's Cyc. C C. S 3196 and note. §31J)o. >VliAT ACCEPTAXE SUFFK lEM >\ IIH (ON- SENT OF HOLDER. The holder of a bill of exchange ina.v, without prejudice to his rights against prior p;i!fi<>s. rer-.-iv.' 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 pay- able; or, 3. A refusal by the drawee to return the bill to the holder after presentment, in which case the bill is payable imme- diately, without regard to its terms. History: Enacted March 21, 1S72. As III m.iny inlscellann.>< inatl«'r« as t<> lillls of (>xchanRr<>, ■«• note S 3121. ante. As to many mlHcellaneous matters as to noffotiable Inntru- monts, see note | 3086, ante. Conditional acceptance. — See Kerr's Cyc. C. C. 13193 and not« par. 12. Indorsement of pint payment. — See Kerr's Cyc C. C | >19J and note. Sfpar.ite In.strvmient — Acceptance may be on. — See Kerr's Cjrc r. r. J 3196 and note. V\VM\. ACrEFTAXF BY SK1V\H\TK I>STHrHF>T. Tho actH'ptunce of a bill of oxchango, by a separate instrument, bind.s the acceptor to one. who. upon the faith thereof, haa the bill for value or other good consideration. IlUlorx En.Tf-l March 21, 1872. K.rrs C. C. — 50 1^69 §§ 3197-3199 CIVIL CODE. [Div.III.Pt.IV. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. § 3197. PROMISE TO ACCEPT, WHEX EQUIYALENT TO ACCEPTANCE. An unconditional promise, in writing, to accept a bill of exchange, is a sufficient acceptance thereof, in favor of every person who upon the faith thereof has taken the bill for value. History; Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 421, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 621. See Kerr's Cyc. C. C. for 3 pars, annotation. 134 C. 189, 191, 193, 196, 66 P. 210 (applied); 147 C. 69, 75, 81 P. 275 (applied — unconditional promise to accept drafts). As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous inatters as to negotiable instru- ments, see note § 3086, ante. Acceptance — How made. — See Kerr's Cyc. C. C. § 3193 and note. §3198. CANCELATION OF ACCEPTANCE. The acceptor of a bill of exchange may cancel his acceptance at any time before delivering 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 113 C. 692, 695, 45 P. 985 (cited). As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. §3199. WHAT IS ADMITTED BY ACCEPTANCE. The acceptance of a bill of exchange admits the signature of the 1570 Tit.XV.ch.II.art.V.] ACCEPTED for iioxoit. §3203 drawer, but does not admit the signature of any indorser to be genuine. HiMtory: Enacted Marcli 21, 1872; amended March 3'i. 1ST4, Code Amdts. 1873-4, p. 265. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneou.s matters as to bills of t-xcliange, seo note § 3121, ante. As to many miscellaneous matters as to negottablf Ijistru- ments. see note § 3086, ante. Implied warranty of indorser. — See K.rrs Cyc. C. C. iSHC and note. ARTICLE V. ACCEPTANCE OR PAYMENT FOR HONOR. S 3203. When bin may be accepted or paid for honor. S 3204. Holder of hill of exchange hound to aectpt payment for honor. S 3203. Acceptance for honor, liow made. § 3206. How enforced. § 3207. Notice of dishonor not excused by acceptance for honor. §3-'03. >VIIEN BILL 3I.VV HK Ar( El'TED OK l'AM» H>K HONOH. 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. lilntory: lOnacted March 21, 1S72. As t(} arcommodation paper taken .-ifler iiKitiii; 335. 336. As to many mlscellaneon.'^ mattera n.s to hills >>t oxPhan^, see note i 3121, ante. As to many ml.scellaneous matter.^ as to neffutiable Inalru- nients, see note { 3086, ante. Rill of exchange after acceptance eijuivalont tr< promissory note. — See Kerr's Cyc. C. C. | 8246 and note. Declar.ntlon before pnyment for honor. — See Kerr's Cyc. C C. § 3233 and note. Drawee In case of need. — See Kerr's Cyc. C. C. | S172 and nOt«. Payment or acceptance to prevent dishonor. — ^»*e 92 A. D. 57S-5SO. 1571 §§ 3204-3206 CIVIL CODE. [Div.III,Pt.IV. §3204. HOLDER OF BILL OF EXCHANGE BOUND TO ACCEPT PAYMENT FOR HONOR. 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. History: Enacted March 21, 1872. As to many miscellaneous matters as to bills of exchange, see note §S121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Acceptance — How made. — See Kerr's Cyc. C. C. §.3193 and note. Honor — Acceptance for. — See Kerr's Cyc. C. C. § 3205 and note. §3205. ACCEPTANCE FOR HONOR, HOW MADE. An acceptor or payer for honor must write a memorandum upon the bill, stating therein for whose honor he 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. History: Enacted March 21, 1872. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Declaration before payment for honor.— See Kerr's Cyc. C. C. § 3233 and note. General principles as to acceptance. — See Kerr's Cyc. C. C. § 3193 and note. §3206. HOW ENFORCED. A bill of exchange which has been accepted for honor must be presented at its maturity to the drawee for payment, and notice of its dishonor 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. History: Enacted March 21, 1872. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. 1572 Tit.XV.ch.ir.art.V.] NOTICE OP DISHONOR. § 3207 Effect of want of demand on principal debtor. — S.-c K»rr"s Cyc. C. C. § 3130 and note. Notice — By wiiom given. — See Kerr's Cyc. C. C. { 3142 and note. Presentment — How made. — See Kerr's Cyc. C. C. { 3186 and note; § 3211 and note. Protest — Necessity for. — See Kerr's Cyc. C. C. $ 3225 and note. §3207. NOTICE OF DISHONOR NOT EXCl'SKI) HV A( . CEPTANCE FOR HONOR. The acceptance of a bill of ex- change for honor does not excuse the holder from giving notice of its dishonor by the drawee. HiMtory: Enacted March 21, 1872. As to many miscellaneous matters as to bills of excliango, see note § 3121, ante. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ante. Excuse of presentment and notice. — See Kerr's Cyc. C. C. §§ 3218-3220 and notes. Notice of dishonor — By whom given. — See Kerr's Cyc. C. C. § 3142 and note. Same — When excused. — See Kerr's Cyc. C. C. § 3115 and note. Protest — How notice given. — See Kerr's Cyc. C. C. { 3231 and note. 157.-? §§ 3211, 3212 CIVIL CODE. [Div.III.Pt.IV. ARTICLE VI. 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. PRESENTMENT, WHEN BILL NOT ACCEPTED, "WHERE MADE. 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 payment is necessary. History: Enacted March 21, 1S72. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Demand on principal debtor — Effect of failure to make. — See Kerr's Cyc. C. C. § 3130 and note. Presentment — How made.- — See Kerr's Cyc. C. C. § 3186 and note. Protest of non-acceptance and non-payment — Upon question wliether protest for non-acceptance and non-payment are both necessary, see 43 A. D. 223. §3212. PRESENTMENT OF BILL, PAYABLE AT PAR- TICULAR PLACE. A bill of exchange, accepted payable at a particular place, must be presented at that place for pay- ment, when presentment for payment is necessary, and need not be presented elsewhere. History: Enacted March 21, 1872. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Place at which instrument must be presented. — See Kerr's Cyc. C. C. § 3131, subd. 3 and note. 1574 Tit.XV,ch.II,art.VI.] i>KLAY IN PRESENTING. 55 3213.3214 §3213. EFFECT OF DELAY IN PKESEMMENT, I\ CER- TAIN CASES. If a bill of exchange, payable at sight or on demand, without interest, is not duly presented for payment within ten days after the time in which it could, with reason- able diligence, be transmitted to the proper place for such presentment, the drawer and indorsers are exonerated, unless such presentment is excused. Hldtory: Enacted March 21, 1S72. See Kerr'B Cyc. C. C. for 6 pars, annotation. 5 C. A. 39, 43, 89 P. 872 (is construed in tonn. . ; ...i, ,mu. » .'{255 — chocks transmitted to anotiier place fur pri-scntnient ). As to many miscellaneous matters as to bills of exchange, sco note § 3121, ante. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ante. Apparent maturity of lull payable at sight. — See Kerr's Cyc. C. C. § 3134 and note. Notice of dishonor — When excu.sed. — See Kerr's Cyc. C. C. § 3155 and note. Presentment — How made. — See Kerr's Cyc. C. C. J 3131 and note. §.3214. EFFECT 1> OTiIEK ( AM S. Mere delay In pre- senting a bill of exchange payablf with interest, at sight or on demand, does not exonerate any party thereto. HiMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 74 C. 362, 364. 16 P. 19. 20 (construed and appli.-d>. As to many niiscellanrou.*^ matters aa to bills of cxolinngf, aeo note t 3121, ante. As to many miseellan< ous niatters aa to negotiable instru- ments, see note { 3086. anti'. Cognate sections. — See Kerr's Cyc. C. C. 8 3247 and n>ii.'. 1575 §§ 3218-3220 CIVIL CODE. [Div.III.Pt.IV. ARTICLE VII. EXCUSE OF PRESENTMENT AND NOTICE. § 3218. Presentment, when excused. § 3219. Delay, when excused. § 3220. Presentment and notice, when excused. § 3218. PRESENTMENT, WHEN EXCUSED. The present- ment of a bill of exchange for acceptance is excused if the drawee has not capacity to accept it. History: Enacted March 21, 1872. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Delay in presentment of check. — See Kerr's Cyc. C. C. § 3255 and note. Notice of dishonor — When excused. — See Kerr's Cyc. C. C. § 3155 and note. § 3219. DELAY, WHEN EXCUSED. Delay in the present- ment of a bill of exchange for acceptance is excused, when caused by circumstances over which the holder has no control. Hi.story: Enacted March 21, 1872. As to many miscellaneous inatters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- inents, see note § 3086, ante. Delay — When excused. — See Kerr's Cyc. C. C. §§ 3158, 3218 and notes. Exoneration of party does not result from delay. — See Kerr's Cyc. C. C. § 3214 and note. § 3220. PRESENTMENT AND NOTICE, WHEN EXCUSED. 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 1576 Tit.XV.ch.II.art.VIII.] foukign hills. 5 3224 bill; or if, at the time of drawing, he had no reason to believe that the drawee would accept or pay the same. IliNtf>r)i Enaotod March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 90 C. 297. 303, 27 P. 283, 285 (cited). As to many miscellaneous matters as to Mils of exchange, see note § 3121, ante. As to many miscellant'ous matters as to neKottable Instru- ments, see note § 3086, ante. Presentment — When excused. — See Kerr's Cyc. C. C. | 3218 and note. ARTICLE VI 11. forp:ign hills. i 3224. Definitions. $ 3225. Protest necessary. i 3226. Protest, by whom niad"-. { 3227. Protest, how made. iS 3228. Protest, where made. H 3229. Protest, when to be made. S 3230. Protest, when excused. i 3231. Notice of protest, how fflven. I 3232. Waiver of protest. t 3233. Declaration before payment for honor. I 3231. Damages allowed r.'> I Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to bllln of .V" t.i note I 3121, anto. As to many mlsr»llaneou« matter* aa to naffottaHl* Instru- ments, see note | 30S6. ante. Bill of exchanRe— What Is. — See Kerr's Cy. and note. 1577 §§ 3225-3227 CIVIL CODE. [Div.III,Pt.TV. § 3225. PROTEST NECESSARY. Notice of the dishonor of a foreign bill of exchange can be given only by notice of its protest. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. As to many miscellaneous matters as to bills of exchange, see note^l 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Definition and object of protest. — See 43 A. D. 216, 217. Waiver of presentment and notice. — See Kerr's Cyc. C. C. § 3159 and note. Wrongful protest of commercial paper.- — See 30 A. S. 158, 159. §3226. PROTEST, BY WHOM MADE. Protest must be made by a notary public, if with reasonable diligence one can be obtained; and if not, then by any reputable person, in the presence of two witnesses. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. § 3227. PROTEST, HOW MADE. Protest must be made by an instrument in writing, giving a literal copy of the bill of exchange, with all that is written thereon, or annexing the original; stating the presentment, and the manner in which it was made; the presence 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 acceptance; and in case of refusal, the reason assigned, if any; and, finally, protesting against all the parties to be charged. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. 1578 d Tit.XV,ch.II,ait.VIII.] PHOTEST. NOTICE OF. §§3228-3231 §3228. PKOTEST. WHKHK MADE. A protest for non- acceptance must be made in the city or town In which the bill is presented for acceptance, and a protest for non-pay- ment in the city or town in which it is presented for pay- ment. IliNtory: FJnactod March 21, 1872. Set' Kerr's Cye. C. C. for 2 purs, annotation. As to many miscellaneous matters as to hills of exchange, see note $ 3121, ante. As to many miscellaneous m.ittirs as to negotiable Instru- ments, Pee note § 3086, ante. §3229. PKOTEST, >V1IE> TO HE M.VDE. A prutosi mu.^t be noted on the day of i)reseiitment, or on the next busi- ness day; but it may be written out at any time thereafter. HlHtory: Enaet.d March 21, 1S72. See K(;rr's Cyc. C. C. for 8 pars, annotation. As to many miscellaneous nuittcrs ns to hills of exchange. Boo note § 3121, ante. As to many miscellaneous matt«rs as to negotiable Instru- ments, see note 5 .TOSfi, anti-. §3230. PHOTEST, >VIIE\ E.\( ISEI). Tiio want of a pro- test of a foreign bill of e.vdiaiiK*'. or delay in mukiim the same, is excused in lil\o cases with flie \v:mt or (l<>1rtv of |)re8entment. Ili«l<>r>: i;!..i.l. .1 Al.i!.,. .,, .,.,.. A.s to many miscellaneous matters as to bills of • ^ note I 3121, ante. As to many miscellaneous mutters ns to negotiabh ments. see note I 30S6, ante Presentment — Excuse for failure or delay. — See K«rr*a Cyc r. C. IS 3218-3220 and n..t.s. §3231. NOTICE OF PHOTEST. HOW <.|\KN. .>..... ...' protest must be pivon in the same manner as notice of dis- honor, except that it may be piven by the ncitary who makes the protest. Illxtoryi Enacted March 21, 187: As to many miscellaneous matters as to bills of exohan^e, so« note { 3121, ante. 1579 §§ 3232-3234 CIVIL CODE. [Div.III,Pt.IV. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Form of notice of dishonor. — See Kerr's Cyc. C. C. § 3143 and note. Service of notice. — See Kerr's Cyc. C. C. §§ 3144, 3145, 3146 and notes. Time of giving notice. — See Kerr's Cyc. C. C. § 3158 and note. Who may give notice. — See Kerr's Cyc. C. C. § 3142 and note. §3232. WAIVER OF PROTEST. If a foreign bill of ex- change on its face waives protest, notice of dishonor may be given to any party thereto, in like manner as of an inland bill; except that if any indorser of such a bill expressly requires protest to be made, by 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 indorsers. History: Enacted March 21, 1872. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Notice of dishonor waived. — See Kerr's Cyc. C. C. § 3155 and note. § 3233. DECLARATION BEFORE PAYMENT FOR HONOR. One who pays a foreign bill of exchange for honor must declare, before payment, in the presence of a person author- ized to make protest, for whose honor he pays the same, in order to entitle him to reimbursement. History: Enacted March 21, 1872. As to many miscellaneous matters as to bills of exchange, see note § 3121, ante. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Acceptance or payment for honor. — See Kerr's Cyc. C. C. § 3203 and note. §3234. DAMAGES ALLOWED ON DISHONOR OF FOR- EIGN BILL. Damages are allowed as hereinafter prescribed, as a full compensation for interest accrued before notice 1580 Tit. XV.ch.IF.art. VIII.] DAMAGKS. 55 3235-3237 of dishonor, re-exchange, expenses, and all other damages, in favor of holders for value only, upon bills of exchange drawn or negotiated within this state, and protested for non-acceptance or non-payment. HiMforyi Enacted March 21. 1S72. As to damagis In liou of Interest, see Kerr's Cyc. C. C. S 3234. note. As to many miscellaneous inattt-rs as to Mils of exclianflre, boo note § 3121, ante. As to many miscellaneous matters as to negotiable Instru- ments, see note § 3086, ant(\ §323.1. I{.\TE ()F D.V.ir.VCiKS. Damages are allowed under the last section ui»ou bills drawn upon any person: 1. If drawn upon a person in this state, two dollars upon each one hundred dollars of the i)rincipal sum specified in the bill; 2. If drawn upon a person out of this state, five dollars upon each one hundred flullniv; ,,f the ni-iiiein.-il sum sii.M-i- ficd in the bill; ;!. If drawn upon a persuii in any ttkne in a fiirri-n cuiin- try. fifteen dollars upon each one hundred dollars of the principal sum specified in the bill. IIIntorTt Enacted Marrli 21. 1872; amended by Code C^mmln- .«r>i KiKi. t. ,1 M:ii.!i ' ' ' " " § 3_»n7. I>A.MA(JF.S, HOW KSTIMATEH. If the amount of a protested bill of exchange is expressed In money of the 1581 §§ 3238, 3244 CIVIL CODE. [Div.III,Pt.IV. United States, damages are estimated upon such amount without regard to the rate of exchange. History: Enacted March 21, 1872. §3238. SAME. [IN FOKEIGN MONEY.] If the amount of a protested bill of exchange 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. History: Enacted March 21, 1872. CHAPTER III. PROMISSORY NOTES. § 3244. Promissory note, what. § 3245. Certain instruments promissory notes. § 3246. Bill of exchange, when converted into a note. § 3247. Certain sections applicable to notes. § 3248. Effect of delay in presentment. §3244. PROMISSORY NOTE, WHAT. A promissory note is an instrument, negotiable in form, whereby the signer promises to pay a specified sum of money. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 103 C. 319, 324, 42 A. S. 117, 37 P. 401 (applied). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. PROMISSORY NOTES. As to form of. — See 1 A. C. 610; 7 A. C. 802; 9 A. C. 1193. As to what constitutes indorsement of negotiable instrument, see 'Kerr's Cyc. C. C. § 3108 and note. Accommodation — As to rights of parties under, see 2 A. C. 256. Same — Acquirer of after maturity, right of. — See 36 A. R. 335. Same — Indorsement by bank. — See 23 L. 836. Same — Liability of maker and endorser. — See 5 L. 698. Same — Power of corporation to issue, — See 9 L. N. S. 1193. 1582 Tit.XV.Ch.III.l NOTES. ORNKHAM.Y. 5 3244 Same — RIplitH and llablHtioa of makers imd Indomom.' 31 A. S. 745. Actions and defences, as to. f^encrally, sec 4 L. 19S; 22 Ij. 686: 61 L. 266. Admissibility of parol evidence to show delivery of. upon con- dition. — See 18 I.. N. S. 288. ApTont. personal liability of on. — See 9 L. 830. Agreement or memorandum not to enforce. — See 38 A. D. 346. Alteration of — After execution. — See 7 A. R. 669. Sann — By insertion of Interest clause. — See 2 !>. N. S. 217. Amount of recovery on, as to, grenerally, see 36 L. 441; 44 !>. 243-250. Assignee of legal title — As to. generally, see 1 A. C. 832. Same — Right of action tliereon of nominal holder. — See 1 A. C 833. Attorneys' fees — Stipulation In note for payment of. effect on negotiability.— See 4 A. C. 263: 1 L. 547; 3 L. Bl. Same — Validity of stipulation In note for. — See 55 A. S. 848: 7 L. 445. Authority and capacity of parties — As to. generally, see 4 A. C 537; 6 A. C. 999. Same — Executed or Indorsed by lunatic, validity and effect of. — See 4 A. C. 539. game — Ijlablllty of person signing as officer of corporatb'i. See 6 A. C. 1000. Same — Power of president and secretary of corpomtlon to execute. — See 2 A. C. 520. Hlank in. niling of after execution. — See 13 A. D. S6'.' Bona flde holder, who Is.— Sep 3 A. D. 235; 9 A. P. 27 -' u \ i' 698. Bona fide purchaser — As to, generally, see 1 A. C 21 Z . 2 A. C. 264: 2 A. C. 604; 4 A. C. 347; 5 A. C. 158; 6 A. C. 6SI. Same — Of accommodation note after nuiturlty, right of — "^■•^ 2 A. C. 256. Same — ()f over-due negoilable paper from one to whom n been Intrusted. — See 5 A. ('. 5M3. Samt — Transfer of In payment of an antecedent debt, wh«th*r Is a. — See 36 A. U. 688. Same — Validity In bunds of, of negotiable contmct void by statute between original parties. — See 4 A. C, 868. Hy parent to chlUl. may It be th.> subject of n valid Ctft l>> former to the latter. — See 7 I.. N. S. 156. Contllct of laws — As to rights and llnbllltles of partle* t- 6 A. C. 158; 61 !>. 193. Same — As to vallcllty of transfer of conun-r. I.U v ii.or» -S.^ 2 A. C. 706. Same — Concerning. — Seo 91 A. 8. 718, 733. Consideration for — As to. generally, see : ■ 260 1 L. 594; 10 I.,. 676: 12 1* 845; 18 I* 86S: 2« 1* Aw*; 4* U ',i*t. 1683 § 3244 CIVIL CODE. [Div.III,Pt.IV. Same — Partial failure of as defense to action on. — See 2 A. C. 430. Same^ — Statute requiring giving- for patent right to show, con- stitutionality. — See 5 A. C. 426. Construction together of note and contemporaneous written instrument intended to control note. — See 5 A. C. 149. Contemporaneous agreement and breach as to defense to an action on. — See 43 L. 449-469. Centjact of guaranty of, does it cover renewals. — See 16 L. N. S. 775; also note § 2787, ante. Corporations— Power to issue accommodation paper. — See 9 L. N. S. 193. Delivery — Agreement for other signatures before. — See 45 L. 343. Same — As an escrow.- — See 5 L. 697. Same — Conditional. — See 43 L. 480. Same — Necessity of.- — See 6 L. 470. Same — Takes effect from. — See 6 L. 469; 13 L. 52. Demand and notice of dishonor— Waiver of by taking security. — See 39 A. D. 95. Same — What excuses. — See 1 A. D. 99. Demand required where payable in specific articles. — See 46 A. R. 307. Demand where maker is out of the state. — See 13 A. D. 346. Discharge and payment — As to, generally, see 5 A. C. 296; 7 A. C. 364; 7 A. C. 1000. Same — Failure of bank to apply general deposit on depositor's note as discharging surety or indorser. — See 7 A. C. 1007. Same — Payment to bank where note is made payable as dis- charging maker.- — See 5 A. C. 298. Duty of one taking, to communicate the check of principal's insolvency to one assuming the obligation of surety. — See 14 L. N. S. 376. Effect of acceleration provision in note to start statute of limitations running.— See 12 L. N. S. 1190. Effect of setting up defects in articles purchased as a coun- terclaim on one of a series of notes given for, or for an instal- ment of, the purchase price, upon the right to set up like coun- terclaim in subsequent actions. — See 10 L. N. S. 734. Executed to fictitious payee, effect of. — See 55 A. R. 472. Execution and delivery — As to, generally, see 3 A. C. 559; 4 A. C. 639. Same — Parol evidence of conditional. — See 3 A. C. 560. Extrinsic evidence to show who is liable as maker of, admis- sibility of. — See 20 L. 705. Fictitious names — As affecting validity of. — See 39 L. 425. Same — Rights of bona fide holder of. — See 6 L. 625. Figures in margin of, object and effect of. — See 1 A. C. 611; 44 A. R. 690. 1584 Tit.XV.Ch.III.] NOTES, GENERAI.r.V. §3244 Forged — Liability of seller of. — See 50 A. D. 60G. Same — Liability on. — Soe 3G L. 539. Same — Right of recovery of persons receiving i-.i.- u>',>l <>{. — See 17 A. R. 313. I<"'orged indorsement — As to generally, see 49 A. D. 315. Same — Estoppel to contest. — See 37 A. R. 704. Form of, figures in the margin of, effect of. — See 44 A. H. 690. Forms of indorsement — As to, generally, see 1 L. 64S; 1 I^ 712; 6 L. 469; 12 L. 370. Same — For collection. — See 2 L. 699; 7 L. 852: 8 L. 4 2. Same — Irregular as to. — See 18 L. 33; 61 L. 200. Fraud — In inception of does not prejudice a bona tide holder. —See 11 A. S. 309. Same — In procuring the delivery of, when available ns a defense. — See 37 A. S. 458. Guaranty of collection of — As to, see note § 2787, ante. Same — Effect of and how enforced. — See 64 A. S. 393. Guaranty by surety of other signatures. — See 49 L. 315. How far wife bound by, given for family expenses. — See 3 L. N. S. 145. Implied warranty of genuineness. — See 12 L. 434; 36 L. 92-96; 49 L. 415. Indorsement — Acknowledgment by payee, in Indorstinent, of lial)ility as maker. — See 7 L. N. S. 400. Same — By one not a payee. — See 3 A. D. 571. Same — By one of two joint payees or indorsees. — See 18 I.. N. S. 630, Same — By stranger before delivery. — See 72 A. S. 676. Same — By third person before delivery. — See 39 A. U. 5.'>7. Same — Failure of bank to apply principal's deposit account upon note, effect upon indorser or surety. — See 8 I* N. S. 944. Same — In blank by person other than the payee or holder. — See 29 A. S. 297. Same — Liability of one who, after receiving relndorsement, transfers the note for value without cancelling his Indorse- ment. — See 10 L. N. S. 260. Same — Parol evidence to vary effect of. — See 7 A. S. 366. Same — Payment voidable under l»ankruptcy act as discharge of surety, guarantor or Indorser. — See 9 L, N. S. 681. Same — Right to show by parol evidence, unrestrlolcd reform, was for purpose of collection only. — See 17 L. N. 8. 838. Same — "Without recourse." — See 87 A. D. 389. Indorsement and transfer — As to. generally, see 13 I* 62; 23 L. 836: 28 L. 577; 50 L. 75: 61 L. 220. Indorser — Before delivery, liability of. — See 27 A. R. 680. Same — Before due, competency of as a witness.- — See 22 A. R. 93. Infant's note for necessary supplies, liability on. — See 6 L. 177; 12 L. 859. 1585 § 3244 CIVIL CODE. [Div.III.Pt.IV. Interpretation of negotiable instrument. — See Kerr's Cyc. C. C. §§ 3099-3104 and notes. Irregular indorsement, as to. — See 18 L. 34-36; 61 L. 200. Levy on and seizure under attachment or execution. — See 14 L. N. S. 1234. Lost or destroyed, right of action at law on. — See 16 L. 205. Lunatic, validity and effect of negotiable paper signed or in- dorsed by. — See 4 A. C. 539. Marginal letters or figures on, otherwise blank as to amount, effect of. — See 2 L. N. S. 879. Maturity of — As to, generally, see 1 L. 319; 3 L. 759; 12 L. 120; 21 L. 440; 49 L. 207; 61 L. 195. Same — Bank custom as to days of grace. — See 21 L. 442. Same— Extension of time when next day follows on Sun- day. — See 14 L. 120. Same — Of demand note. — See 5 L. 533. Memorandum on back of, at time of execution, as substan- tive part thereof. — See 15 L. N. S. 612. Memorandum upon, what deemed a part of, and effect of alter- ation of.— See 14 A. D. 232. Negotiability and transfer of — As to, generally, see 1 A. C. 384; 2 A. C. 504; 4 A. C. 261. Same — Conflict of laws as to validity of transfer of commer- cial paper. — See 2 A. C. 706. Same — Of note containing a stipulation for attorney's fees and costs of collection. — -See 4 A. C. 263. Same- — Of note payable with exchange. — See 1 A. C. 385. Negotiability of — As to, generally, see 1 L. 299; 3 L. 50; 7 L. 537; 8 L. 393; 11 L. 749; 12 L. 781; 20 L. 481; 26 L. 568; 35 L. 536; 61 L. 205. Same — Attorney's fee, effect on of provision for payment of. — See 21 A. R. 212. Same — Provision permitting extension of time, as affecting. — • See 16 L. N. S. 878. Same — Reference to account or fund as affecting. — See 8 L. N. S. 231. Same — Uncertainty as to time of maturity, as affecting. — See 1 L. N. S. 1120. Negotiable — Bona fide holders, right to recover on. — See 26 A. D. 156. Same — Demand and notice of dishonor, waiver of by promise to pay made after maturity. — See 8 A. D. 304. Same — Indorsement of by one not a holder or payee. — See 56 A. D. 359. Same — Indorsement, parol evidence to limit or vary effect of.— See 9 A. D. 381. Non-negotiable — Blank indorsement of. — See 13 A. D. 55. Same — Liability of indorser under. — See 97 A. S. 985. 1586 t Tit.XV.ch.IIL] NOTES, GENERALLY. §3244 Non-trading partners, commercial paper executed by. — See 11 L. 238. Notice of dishonor, how waived. — See 38 A. D. 607. Notice of non-acceptance, necessity of. — See 2 A. D. 619. Object and effect of marginal figures at bills and notes. — See 1 A. C. 611. Officer of corporation — Person signing as, liability of. — See 6 A. C. 1000. Same — Personal liability of on note. — See 19 L. 676. On which interest is passed to, whether to be regarded as dis- honored and subject to defenses in the hands of bona fide holders. — See 100 A. D. 196. Partial failure of consideration as a defense. — See 2 A. C. 430. Partner, power of one to bind firm by, under seal. — See 17 L. N. S. 969. Payable on demand. — See 80 A. D. 250. Payee, designation of, what a sufficient. — See 64 A. D. 156. Payment and discharge — As to authority of bank to pay where made payable at the bank. — See 9 L. 560. Same — By maker, which provision ineffectual as to satisfac- tion, as affecting tlie liability of a surety thereon. — See 13 L. N. S. 204. Same — Effect of payment by volunteer. — See 2 L. 124. Same — Where payable in foreign money. — See 20 L. 4S1. Place of payment — Effect of failure to specify. — See K>rr's Cyc. C. C. § 3100 and note. Power of — Building association to issue. — See 43 L. 419. Same — Partners to bind firm by, under seal. — See 17 I... N. S. 969. Same — Transfer or indorser. — See 4 L. 857; 14 L. 35S; 23 L. 711; 27 L. 401-407; 53 L. 857. Presentation and demand — As to, generally, see 7 A. C. 690; 21 L. 441; 61 L. 216. Same — At place named in note payable on demand as con- dition precedent to suit against maker. — See 7 A. C. 693. Same— Effect of failure or delay.— See 22 L. 785; 68 L. 482- 491. Same — Necessity of — As to. generally, see 12 L. 727: 61 L. 216, 217; 68 L. 487. Same — Same — Actual, to affect its dishonor. — See 13 L. N. S. 303. Same — Same — New consideration to support failure to protest or give notice of non-payment. — See 3 L. N. S. 1079. Same — Release of indorser l>y failure to enforci- liability of maker. — See 18 L. N. S. 530. Same — Sufficiency of — As to, generally, see 12 L. 731; 61 L. 217, 218. Same — Same — Banking custom as to demand and notice. — See 21 L. 441. 1587 § 3244 CIVIL CODE. [Div.III.Pt.IV. Same — Same — In case of death of prior obligor. — See 23 L. 711. Same — Same — Place of. — See 12 L. 727. Same — Same — Service of notice by mail. — See 12 L. 731. Same — Same — Time within which notice must be given. — See 12 L. 729. Same — Same — To whom notice and protest to be given. — See 61 L. 900. Same — Time allowed for. — See 4 L. N. S. 132. Same — Waiver. — See 29 L. 301-315; 53 L. 365; 68 L. 491. Presentment of — For payment, what a sufficient. — See 24 A. R. 160. Same — Place of. — See 50 A. D. 643. President and secretary of corporation are to execute. — See 2 A. C. 520. President or vice-president of a corporation — Power of to make. — See 14 L. 357. Presumption — And burden of proof in action by purchaser. — See 17 L. 326. Same — Of place of indorsement of negotiable instrument. — See 5 A. C. 160. Procured by fraud, rights of bona fide purchasers of. — See 41 A. R. 607. Proof of, as fixed liability under bankruptcy act. — See 54 L. 373. Protest and notice — As to, generally, see 4 A. C. 639; 5 A. C. 476; 6 A. C. 280; 6 A. C. 408. Same — As evidence. — See 96 A. D. 602. Same — Necessity of new consideration to support waiver of protest of. — See 5 A. C. 478. Same — Necessity of notice of dishonor, to fix liability of surety. — See 6 A. C. 280. Same — Purpose, mode and sufficiency of. — See 43 A. D. 216. Same — To whom to be given when indorser is insolvent or bankrupt. — See 54 A. R. 818. Same— Wrongful, liability for. — See 30 A. S. 158. Provision for exchange, as affecting negotiability. — See 27 L. 222. Public agents executing, personal liability of. — See 37 A. R. 142. Public officer, liability on negotiable paper. — See 15 L. 512. Purchaser of after default in tlie payment of interest. — See 30 A. R. 701. Purchaser with notice — As to rights of, see 6 A. C. 202; 8 A. C. 623; 9 A. C. 339. Same— Purchaser of one of series of notes having notice of defense against other notes, as innocent purchaser. — See 9 A. C. 340. 1588 Tit.XV.ch.III.] NOTES. GENERAT.LY. §3244 Recovery back of payment — As to, generally, see I'l I>. N. S. 49-73. Reformation of In eciuity. — See 65 A. S. 519. Reissue of — After payment. — See 95 A. D. 587. Same — Payment or acceptance to prevent. — See 92 A. D. 575. Renewal of note by insane person, validity of. — See 34 L. 294. Replevin or detinue for. — See 3 L. N. S. 138. Rights and liabilities of parties to. — See 7 A. C. 394. Right of action on, of nominal holder. — See 1 A. C. 833 Right of an Innocent payee to recover on a note slgn.-l iu blank and intrusted to a third person who exceeds his author- ity in filling up the blanks before delivery to the payee.— Sec 13 L. N. S. 490. Rights of holder where transferred after maturity.— See 46 L. 753-812. Right of transferee— As to, generally, see 49 L. 679; 54 I.. 673; 1 L. N. S. 242, 18 L. N. S. 1221. Same — Bona fide holders, notice of equities. — See 1 I- N. S. 188; 2 L. N. S. 525;' 5 L. N. S. 628; 17 L. N. S. 747. Same— Extent of rights and protection of bona flde purchas- ers—See 6 L. 502; 16 L. 45: 35 L. 161; 35 L. 464-470; 36 L. 434- 441; 54 L. 451: 61 L. 202; 3 L. N. S. 212; 4 L. N. S. 1042: 10 L. N. S. 842; 13 L. N. S. 426. Same— Transfer after maturity, ottoH of.— See 2 I.. N. S. 767; 11 L. N. S. 1034. Same — Transfer without indorsement. — See 10 L. N. S. 510- 553; 17 L. N. S. 1105. Same— Who protected as bona nde purchasers.— See 10 I>. 677; 12 L. 41; 61 L. 212. Right to follow as a trust. — See 34 L. 536. Right to maintain trover to recover pos.'ses.'^lon of paid.— S.-o 16 L. N. S. 1043. Seal, effect of attaching to. — See 36 L. 605. Signature of — As surety for surety. — See 21 I... 247. Same — By mark. — See 22 L. 372. Same — By proxy. — See 22 L. 297. Same — Fictitious names, as affecting validity of.- S- • 425. Same— Guaranty by surety of other signatures. — J^^ ' •'• Same— Use of Initials In. or In Indorsing. — See 14 U r.y.1. Signed through belief that there were other writings. Induced by false represeiitatlon.«<. effect of In the hands of bona fldo holders. — See 4 A. R. 240. Signed through fraudulent representations ns to character of Instrument signed. — See 11 A. R. 449. Situs of, for purposes of administration. — See 24 L. 689. 1589 § 3245 CIVIL, CODE. [Div.III,Pt.IV. Statute of limitations, effect of acceleration provision in note to start running-. — See 12 L. N. S. 1190. Title acquired by payee of instrument fraudulently procured from maker, or subject to other defenses, by purchase after transfer to innocent third party. — See 8 A. C. 626. Transfer — In violation of contract, effect of. — See 5 A. C. 148. Same — Of negotiable note as security for antecedent debt. — See 1 J^. C. 275. Transferee of accommodated party, right of after maturity as against accommodation party. — See 2 A. C. 256. Unconditional promise to pay is essential to. — See 42 A. R. 366. Validity of- — Given as a forfeit or as collateral to an invalid oral agreement within statute of frauds. — See 18 L. 142. Same — Given for money lost at play. — See 7 L. 705. Same — Given for patent rights. — See 20 L. 605. Same — Note renewed by insane person. — See 34 L. 274. Same^ — -Of stipulation for attorney's fees. — See 7 L. 445. Validity and effect of negotiable paper signed and indorsed by lunatic. — See 4 A. C. 539. Validity in hands of bona fide holder of negotiable contract void by. statute between original parties. — See 4 A. C. 353. Validity of oral guaranty by transfer of negotiable instru- ment. — See 2 A. C. 506; also note §2787 ante. Validity of statute requiring not given for patent rights to show consideration. — See 5 A. C. 426. Waiver of — Demand and notice by taking security. — See 4 A. D. 49. Same — Right to demand and notice on part of indorser, proof of by parol. — See 57 A. D. 665. Where taxable. — See 2 L. 801. Who may sue on, as to, generally, see 12 L. 683; 61 L. 222; 64 L. 599. §3245. CERTAIIV INSTRUx¥ENTS PROMISSORY XOTES. 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. History.: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 421, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. 1590 Tit.XV,ch.III.l nilJ.S of EXCIIANr.i:. §§3246-3248 §3246. HILL (»F KX("HA>(;E, »HK\ ((nVKKTKI» INTO A >OTE. A bill of exchange, 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. liiNlory: Eiuict.d March 21. 1872. As to many miscellaneous matters as to negfotlable Instru- ments, see note § 3086, ante. Acceptance or payment for honor. — See Kerr's Cyc. C. C. 8§ 3203-3207 and notes. §3247. (EKT.VIN SE(TI()\S ATrLKAULK TO NOTES. Chapter one of this title, and sections thirty-one hundred and eighty-one and thirty-two hundred and fourteen of this code, apply to promissory notes. IllNt«>ryi Knacted March 21. 1S72. 74 C. 362, 364. 16 P. 19, 20 (referred to). As to many miscellaneous matters as to negrotlable Instru- ments, see note § 3086. ante. §:i24S. EFFECT OF DELAY IN TKESENT.MENT. If a promissory note, payable on demand, or at sight, without interest, is not duly presented for payment within six months from its date, the indorsers thereof are exonerated, unless such i)resentment is excused. lIlMtoryt lOnhcled March 21. 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 74 C. 362, 364, 16 1'. 10, 20 u-.-ferred to). As to many mlscellaneoUH matters as to nefrotinl>l<- Instru- ments, see note I 3(186. ante. Apparent maturity of note. — See Korr*« Cyo. C. C. | X1S6 and note. Excuse of presenlinent and notice. — 8e« X«IT'« <" SI 3155-3160 and notes. 1591 § 3254 CIVIL CODE. [Div.III,Pt.IV. CHAPTER IV. CHECKS. § 3254. Check, what. § 3255. Rules applicable to checks. §3254. CHECK, WHAT. A check is a bill of exchange drawn upon a bank or banker, or a person described as such upon the face thereof, and payable on demand, without inter- est. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 15 pars, annotation. 134 C. 237, 241, 66 P. 326 (cited); 138 C. 183, 185, 94 A. S. 28, 71 P. 93 (cited); 4 C. A. 201, 205, 87 P. 467 (nature and nego- tiability of check). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. CHECKS. Acceptance of — Binds money after payment when. — See 25 L. 200. Same — Sufficiency of to bind drawee. — See 11 A. C. 284. Agent, power to indorse. — See 27 L. 401. As an appropriation or assignment of money. — See 64 A. D. 632; 27 A. R. 55; 42 A. S. 921; 81 A. S. 72; 88 A. S. 979; 94 A. S. 28; 21 L. ed. 424; 41 L. ed. 855; 1 W. & P. 692. As an assignment pro tanto.^ — See 5 A. C. 183, 189; 5 A. C. 937. As cash.— See 34 A. D. 228; 1 "W. & P. 995. As false token. — See 72 A. S. 758; 44 L. 266; 3 W. & P. 267. As money.— See 20 L. 223; 45 W. & P. 4560. As thing of value. — See 2 W. & P. 1112. Authority of agent to collect, to receive in payment. — See 9 A. C. 1193, 1198; 10 A. C. 420. Banking customs as to. — See 2 L. 443. Bank note distinguished. — See 1 W. & P. 692. Bill of exchange distinguished. — See 2 A. D. 126; 64 A. D. 290; 10 A. R. 681; 45 A. R. 129; 69 A. S. 495; 81 A. S. 72; 23 L. 173; 31 L. ed. 97; 35 L. ed. 481; 2 W. & P. 1110. Cashier's check distinguished. — See 95 A. S. 693; 57 L. 341; 2 W. & P. 1112. Certification of — As release of drawer or indorser. — See 9 L. N. S. 698. 1592 TitXV.ch.IV.] CHECKS. GENERai.lv. J 3254 Same — Effect of. — See 12 L. 492. Same — Same — Liability of drawee or IndorBer. — See 11 A. C 245. Same — Same — On liability of lndnr.«er. — See IG L. 510. Same — Parol. — See 7 L. 428. Corporation, power of president as to drawlnRT or payln»c. — See 14 L. 357. Creditor's neglect in presontlnff check to third person t->r payment as a discharge of the debtor. — See 5 A. C. 871. Defenses against, transferred after maturity. — See 46 I* 808. Deposit presumed. — See 2 W. & P. 1112. Drafts on bank as. — See 23 L. 173. Drawee's right to recover money paid on forged check. — S«'o 10 L. N. S. 49. Duty of bank to know signature upon. — S'>«» 27 L. fi35. Effect of. as to generally, see 7 L. 596: 9 L. 109; 11 L. 52S; 19 L. 475; 20 L. 791. ICfTtct of acceptance of check as payment. — See 9 L. 26S. Effect of giving, for an indebtedness or part thereof to toll statute of limitations upon the original indobtednesa. — See 18 L. N. S. 223. Forged — Holder, wlun antl how may recover of drawer or indorser. — Soc 17 A. S. 807. Same — Liability of person whose name is forg«'d t" - s. ■• ^a, L. 539. Same — Raised checks, as to generally, see 5 A. C. 77 i Same — Same — Liability of bank to dcposltur for paying.— 8«e 5 A. C. 774. Same — Right to recover money paid on. — Sec 10 !>. N. S. 49. Same — Rights and remedies of the several parties after pay- ment of. — See 17 A. S. 889. Same — Signature forged. — S»-e 7 A. C. 74 >. Same — Same — Unre.strlcted Indornement of clieck nn wnrrnnly that Instrument Is genuine. — See 7 A. C. 746. Gift of.— See 18 L. S.".:,. Holder, when and how niav recover of drawir or lni|i»r»er.- See 17 A. S. 807. Impostor, who to bt-ar loss where check l«»»ued or Indoracd to.— See 17 I>. N. S. r.II. Indorsement of "for deposit." — See 23 I>. 164. I.H.«ued or Indornetl to Impostor, who to bear 1os». — f*<-e S" T* 75: 17 L. N. S. 514. Liability of — Bank for refusing. wh«u It hnn fiii- dorser. — See 15 L. 13 4. Same — Creditor who accepts as payment from debtor checJi of third person wlilrh has been wrongfully procured by debtor. —See 13 K N. S. 278. Same — Drawee for accepting, from agent or fldtirlary In pay- ment of his debt. — See 62 L. 790. 1593 § 3254 CIVIL CODE. [Div.III.Pt.IV. Same — One to whom insolvent bank has paid a.— See 13 L. N. S. 185. Same — Person wliose name is forged to check. — See 36 L. 539. Limitation of actions on. — See 22 L. 110. Loss of, effect of upon right of holder to recover against maker without presentment. — See 14 L. N. S. 616. Lost, liability of maker who makes wrongful payment. — See Kerr's Cyc. C. C. § 3177 and note pars. 4, 5. Mere drawing of check on bank in which drawer has no funds or credit and presenting same as false pretenses. — See 17 L. N. S. 244. Nature of. — See 7 L. 595. Negotiability of— As to, generally, see 25 L. 568-571. Ordinary bank check as an assignment of funds to drawer. — See 5 A. C. 189. Payable on demand or presentment. — See 61 A. D. 433; 16 A. S. 718; 32 A. S. 472; 16 L. 510; 2 W. & P. 1112. Payment of debt by. — See 7 L. 442; 9 L. 263. Payment by mistake — As to effect and rights of parties. — See 1 A. C. 630. Same — Right of bank to recover money paid by mistake. — See 1 A. C. 632. Power of agent to indorse. — See 27 L. 401. Presentation — Delay in, where drawee solvent, effect of. — See 53 L. 432. Same — Forwarding for collection, as to generally, see 5 A. C. 868. Same — Same — Discharge of debtor by creditor's neglect in. — See 5 A. C. 871. Same — Mode of. — See 13 L. 43. Same — Necessity for actual, to effect its dishonor. — See 13 L. N. S. 303. Same — Necessity of. — See 7 L. 490. Same — Party residing in same place, as to. — See 10 A. C. 1119. Same — Same — Reasonable time for presentnaent. — See 10 A. C. 1121. Same — Release of indorser by. — See 22 L. 785. Same — Time for. — See 13 L. 43. Remedy of payee of, against one who has taken it on in- dorsement of unauthorized agent.- — See 13 L. N. S. 211. Right of bank as against holder of, to set off unmatured claim against insolvent depositor. — See 15 L. 711. Right to stop payment of. — See 30 L. 845. Transfer of on time allowed for presentment, effect of. — See 10 L. N. S. 1153. Transfer without indorsement of worthless check to third person, effect of. — See 10 L. N. S. 510, 536; 15 L. N. S. 510. 1594 Tit.XV.ch.IV.] RULES AS TO CHECKS. § 325r> Transferred after maturity, defense against. — Sco 4t", i.,. SUS. What are. — See 7 L. 489. Who to bear loss when check is Issued or indorsed by im- postor.— See 17 L. N. S. 514. Wrongful dishonor of, as to liability. — See 7 A. C. 818: 10 A. C. 897. Same — Admissibility in action for, of evidence of depositor's financial credit and standing. — See 10 A. C. 988. Same — Damages recoverable by depositor for. — Sot- 7 A. C. 819. §3255. KULES AITLK VHLE TO (HECKS. A check i8 subject to all the provisions of tliis codf coiiciMniim bills of exchange, except that: 1. The drawer and indorsers are f.xdin-i iU'il i..\ lielay in presentment, only to the extent of the injury which they suffer thereby; 2. An indorsee, after its apparent maturity, but withotit actual notice of its dishonor, acquires a title equal to that of an indorsee before such period. ]IiNtor> ! Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 134 C. 237, 242, 66 P. 326 (cited); 5 C. A. 39, 43. 89 P. 872 (construed in connection with § 3213 — checlts trnnsmiltod to another place for prt'scntment). As to many miscellaneous matters as to negotiable Inntrii- ments, see note § 3086, ante. Definition of check. — For definition of chock and grcnerul rules governing same, see Kerr's Cyc. C. C. { 32,'»4 and nolo: 10 A. S. 669; 56 A. S. 228; 3 U 273; 35 L. ed. 481; 2 W. & P. 1109. Excuse of presentment and notice. — See ICerr'«» Cyr. C. C U 3218-3220 and notes. Grace not allowed on chocks. — See Kerr'.s t'y. . ■ ^1 luul note. Indorsee in due course — Who Is. — See Kerr's > 3 and note. • 1595 §§ 3261-3268 CIVIL CODE. [Div.III.Pt.IV. CHAPTER V. BONDS, BANK NOTES, AND CERTIFICATES OF DEPOSIT. § 3261. Bank note negotiable after payment. § 3262. Title acquired by indorsee [repealed]. §3261. BANK NOTE NEGOTIABLE AFTER PAYMENT. A bank note remains negotiable, even after it has been paid by the maker. History: Enacted March 21, 1872. As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 3261, note. §3262. TITLE ACQUIRED BY INDORSEE (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 265. TITLE XVI. GENERAL, PROVISIONS. § 3268. Parties may waive provisions of code. §3268. PARTIES MAY WAIYE PROYISIONS OF CODE. 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 intention of the parties, when ascertained in the manner prescribed by the chapter on the interpretation of contracts; and the benefit thereof may be waived by any party entitled thereto, unless such waiver would be against public policy. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 101 C. 627, 641, 40 A. S. 96, 36 P. 113 (cited). As to many miscellaneous matters as to negotiable instru- ments, see note § 3086, ante. Interpretation of contracts. — See Kerr's Cyc. C. C. §§ 1635-1661 and notes. 1596 DIVISION FOUETH. Part I. Relief, §§ 3274-3423. II. Special Relations of Debtor and Creditor, §§ 3429-3473. III. Nuisance, §§ 3479-3503. IV. Maxims of Jurisprudence, §§ 3509-3543. 1597 ■::s h Pt.I.Tit.L] RELIEF, GENERALLY. §§3274,3275 PART I. RELIEF. Title I. Relief in General, §§ 3274, 3275. II. Compensatory Relief, §§ 3281-3360. III. Specific and Preventive Relief, §§ 3366-3423. TITLE I. RELIEF IN GENERAL. § 3274. Species of relief. § 3275. Relief in case of forfeiture. '"'§3274. SPECIES OF RELIEF. As a general rule, com- pensation is the relief or remedy provided by the law of this state for the violation of private rights, and the means of securing their observance; and specific and preventive relief jnay be given in .no other cases than those specified in this part of the civil code. HLstory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 117 C. 377, 379, 49 P. 353 (construed with other sections). §3275. RELIEF IN CASE OF FORFEITURE. Whenever, by the terms of an obligation, a party thereto incurs a for- feiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, wilful, or fraudulent breach of duty. Hi.Htory: Enait.'d Marcli 21. 1S72. See Kerr's Cyc. C. C. for 2 par.s. annotation. 84 C. 420, 422 (applied to forfeiture of lease, l.iil .noneously cited as §327), 24 P. 316, 317 (correct citation); 97 C. 647. 654, 32 P. 702, 704 (construed): 120 C. 416, 420, 52 P. fifit> (rit.d); 4 1599 §3281 CIVIL CODE. [Div.IV,Pt.I. C. A. 361, 368, 88 P. 287 (equitable relief in case of forfeiture for breach of contract); 46 F. 355, 356 (scope and purpose of section). Interpretation of condition invoking forfeiture. — See Kerr's Cyc. C. C. § 1442 and note. TITLE II. COMPENSATORY RELIEF. Chapter I. Damages in General, §§3281-3294. II. Measure of Damages, §§3300-3360. CHAPTER I. DAMAGES IN GENERAL. Article I. General Principles, §§ 3281-3283. II. Interest as Damages, §§ 3287-3290. III. Exemplary Damages, § 3294. ARTICLE I. • GENERAL PRINCIPLES. § 3281. Person suffering detriment may recover damages. § 3282. Detriment, what. § 3283. Injuries resulting or probable after suit brought. §3281. PERSON SUFFERING DETRIMENT MAT RE- COVER DAMAGES. Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 11 pars, annotation. 110 C. 311, 316, 42 P. 811 (cited); 110 C. 374, 385, 42 P. 896 (referred to); 123 C. 42, 44, 45, 55 P. 706 (referred to); 136 C. 129, 131, 68 P. 476 (applied); 1 C. A. 441, 444, 82 P. 640 (cited— damages in case of nuisance); 46 F. 355, 356 (scope and purpose of section). 1600 Tit.IT,ch.I,art.I.] DAMAGES, GENERALLY. § 3281 DAMAGES — IN GENERAL. As to damages for breach of contract, see Kerr's Cyc. C. C. §§ 3300 et seq. and notes. As to damages for torts, see Kerr's Cyc. C. C. §§ 3333 et seq. and notes. As to exemplary damages, see Kerr's Cyc. C. C. § 3294 and note. As to libel, see Kerr's Cyc. C. C. § 45 and note. As to limit of recovery of damages for breach of obligation, see Kerr's Cyc. C. C. §§ 3319, 3358 and notes. As to new trial for excessive damages, see Kerr's Cyc. C. C. P. § 657 and note. As to proxy causing, where defendant has committed tort. — See Kerr's Cyc. C. C. § 3333 and note. Actual accrual of damages after commencement of action. — See Kerr's Cyc. C. C. § 3283 and note. Against carrier — Amount of for loss of goods. — See 2 L. N. S. 773. Same — By passenger who submits to ejection to let founda- tion for action. — See 9 L. N. S. 1060. Same — Damages incident to intent to reach destination by other means as an element of recovery for failure to stop train for intending passenger. — See 8 L.. N. S. 880. Same — Expenses incidental to loss of, or delay in delivering, baggage. — See 7 L. N. S. 188. Same — Measure of liability of as to, see note § 3300, post. Same — Shipper's misrepresentation of value of goods as af- fecting extent of liability of. — See 2 L. N. S. 773. Same — Time of notice to warrant special for failure of car- rier to deliver propcrtj'. — See 3 L. N. S. 1111. Against telegraph company — As to, see "Telegram," this note. Same — For continued physical suffering of sender of message because of negligence in transmission and delivery. — See 11 L. N. S. 1149. Same — For loss of opportunity to respond to a call for pro- fessional services. — See 14 L. N. S. 533. Same — For loss sustained iipon commercial transaction In consequence of breach of duty. — See 4 L. N. S. 262. Same — For refusal to pay money to sendee of telegraphic message. — See 2 L. N. S. 1072. Agreement purporting to liquidate. — See 108 A. C. 4<>. Arbitration, damages for revoking submission to. — See Kerr's Cyc. C. C. § 1290 and note. Attorneys' fees as element of. — See 12 A. R. 199, 200; 8 A. S. 158-161. Same — On dissolution of injunction. — See 39 A. R. 13: S A. S. 161. By conditional vendor of personalty from tliird person who Kerr's C. C— 51 1601 § 3281 CIVIL CODE. [Div.IV,Pt.I. converts the same after partial payment of the purchase price. — See 10 L. N. S. 458. Carrier — Default or delay as to transportation of passenger. — See 32 L., 345. Same — Failure to transport goods. — See 9 L. 451. Compensatory — As actual damages. — See 80 A. S. 1; 49 L. 475; 2 W. & P. 1357. Same — As affected by intent. — See 49 A. R. 366; 16 A. S. 422; 2 W. & P. 1357. Same — Exemplary damages distinguished. — See 60 A. S. 874; 2 W. & P. 1357. Same — In particular torts. — See 39 A. S. 672; 18 L. 385; 2 W. & P. 1358. Same — Recovery of. — See 27 A. D. 684-689. Same — "What are. — See 27 A. R. 528; 45 A. R. 112; 64 A. S. 676; 37 L. ed. 463; 2 W. & P. 1357. Contingent.- — See "Uncertain, contingent and speculative," this note. Consequential — As to what are, see 12 A. R. 147; 2 W. & P. 1442. Same — Extent of trespasser's liability for. — See 53 L. 641. Same — Liability for. — See 36 A. R. 382. Same — Statute of limitations, in actions for. — See 38 A. D. 270-272. Duty of person whose property has been controverted or destroyed to repurchase like property to mitigate. — See 6 A. S. 364. Elements of, recoverable by child for death of mother. — See 19 L. N. S. 128. Eminent domain, what recoverable in proceedings in exercise of right of — As to, generally, see 31 A. D. 373; 88 A. D. 113; 9 A. S. 144; 19 A. S. 459; 22 A. S. 50; 85 A. S. 291; 3 W. & P. 2365. Same — Adaptability of property for uses other than that to which it is applied as an element in assisting damages. — See 15 L. N. S. 679. Same — Consequential, data necessary to warrant. — See 3 L. N. S. 333. Same — Danger of injury to owner of property or members of his family, or of his live stock, as an element of in railway right of way. — See 11 L. N. S. 1003. Same — Injury to or expense of removing personalty as an ele- ment of damage. — See 4 L. N. S. 890. Same — Obstruction of surface water as element of. — See 13 L. N. S. 237. Same — Setting off benefits against damage. — See 9 L. N. S. 781-837. Same — Special value of property for which taken as an ele- ment of damages. — See 11 L. N. S. 996. 1602 Tit.II,ch.I,art.I.] DAMAGES, GENERALLY. §3281 Same — Value of property as a part of a natural water power, right to consideration in fixing- compensation. — See 3 L. N. S. 912. Evidence admissible to show mental anguisli. — See 19 L. N. S. 409. Evidence of domestic relations of persons seeking to recover for personal injuries. — See 85 A. S. 835. Excessive damages, award of. — See Kerr's Cyc. C. C. § 3333 and note. Excessive or inadequate damages as ground for new trial. — See 5 A. C. 303. Exemplary. — See "Punitive," this note. Same — Actual damages as basis for award. — See 7 A. C. 89G. Same — As a punishment. — See 1 A. C. 191. Same — As indeterminate actual damages. — See 3 W. & P. 2579. Same — Carrier's liability for. — See 1 L. 682: 13 L. 600. Same — Compensatory damages distinguished. — See 69 A. S. 874; 3 W. P. 2578. Same — Corporation's liability for. — See 59 A. S. 589. Same — Expenses of litigation as element, or limit of. — See 4 L. N. S. 907. Same — For act punisliable criminally. — See 9 A. C. 638; 50 A. D. 771. Same — For carrying passenger beyond destination. — See 17 L. N. S. 1226. Same — For death by wrongful act. — See 6 A. C. 191, 194; 8 A. C. 746. Same — For negligence, generally, see 11 L. 43; 11 L. 690; 17 L. 72. Same — For tort, generally, see 9 L. 445; 13 L. 600. Same — Same — Necessity for actual malice to justify. — See 16 L. N. S. 440. Same — In action by passenger against carrier. — See 9 A. C. 1114. Same — In action of replevin. — See 4 A. C. 68, 71. Same — In action on contract other than contract to mari'y. — See 3 A. C. 413. Same — In cases otlier tlian for personal injuries. — See 13 L. 600. Same — Liability for, of newspaper proprietor for libel pub- lished without his knowledge or consent. — See 26 L. 779. Same — Liability of principal or master for act of his servant or agent. — See 62 A. D. 379. Same — On action arising out of a breach of contract, attended with a fraudulent act. — See 3 A. C. 407. Same — Persons liable for. — See 37 I.,, ed. 97: 3 W. & P. 2579. Same — Rules respecting the allowance of. — See 50 A. D. 767. 1603 § 3281 CIVIL CODE. [Div.IV,Pt.I. Same — Special damages distinguished. — See 3 W. & P. 2579. Same — Synonymous with punitive or vindictive damages. — See 74 A. S. 406; 16 A. R. 270; 49 A. R. 366; 3 W. & P. 2579. Same — Synonymous with "smart money."— See 37 L. ed. 97; 3 W. & P. 2579. Same — Under statutory provisions- — As to, generally, see 9 A. C. 634. Same — Same — Where act punishable as crime. — See 9 A. C. 638. Same— What are.— See 88 A. D. 141; 16 A. R. 270; 21 A. R. 757; 28 A. R. 442; 45 A. R. 12; 47 A. R. 279; 49 A. R. 366; 15 A. S. 923; 29 A. S. 827; 54 A. S. 327; 60 A. S. 874; 4 L. 500; 14 L. 798; 19 L. 710; 37 L. ed. 97; 37 L. ed. 463; 41 L>. ed. 632; 3 W. & P. 2587. Same — When allowable. — See 27 A. D. 684. Same — When master or employer is liable in, for the act of his employee or servant. — See 101 A. S. 730. Same — When may be recovered. — See 28 A. S. 870. Same— Where land conveyed as security for a loan is wrong- fully sold by grantee. — See 3 A. C. 407. Expenses of nursing and medical attendance as an element of in personal injuries. — See 11 L. 46. Failure to perform contract not valid under statute of frauds, right to recover for. — See 6 A. S. 495. Findings of court. — See Kerr's Cyc. C. C. § 3304 and note. For breach of agreement to assume debts on dissolution of partnership.- — See 9 L. N. S. 113. For breach of contract — For sale of article having no mar- ket price. — See 57 L. 193-206. Same — Of employment. — See 3 L. 137; 5 L. 759; 35 L. 516; 69 L. 126. Same — -To loan or advance money. — See 37 L. 233. For breach of covenant — As to, generally, see 3 L. 791; 13 L. 723; 18 L. 385. Same — In grant of water power. — See 67 L. 405. Same — Recoupment of for breach of warranty. — See 1 L. 339. For breach of implied warranty on contract of sale. — See 18 L. 385. For breach of promise of marriage. — See 10 L. 585. Same — Seduction as an element of. — See 10 L. 585. For causing death — ^As to, generally, see 3 L. 327; 13 L. 860; 15 L. 585; 17 L. 71-79; 18 L. 449; 56 L. 205; 56 L. 312; 67 L. 91. Same — Difference as to amount of recovery as affecting ac- tion for based on statutes of another state. — See 56 L. 205. Same — Who may maintain.— See 17 L. 76. For conversion — As to, generally, see 1 L. 306; 2 L. 449. Same — Loss of profits as element of. — See 52 L. 51. Same — Of property by invalid sale by pledgee. — See 43 L. 768. 1604 Tit.II,ch.I,art.I.] DAMAGES, GENERATE. Y. §3281 For delay in performance of contract by buyer. — See Kerr's Cyc. C. C. § 3308 and note. For dishonor of check. — See 15 L. 134. For false imprisonment. — See 1 A. C. 924. For injuries by animajs. — See 5 A. C. 874. For injuries by railroad caused by frightening- of horses. — See 3 A. C. 1065, 1070; 10 A. C. 294, 302. F.or injuries or destruction to trees. — See 2 A. C. G39, 642; 8 A. C. 812; 15 L. 612; 19 L. 653-659. For injuries to animals. — See 5 A. C. 414. For injuries to crops. — See 1 A. C. 761; 6 A. C. 946, 949. For injuries to infants — As to, generally, see 4 A. C. 248; 8 A. C. 1105. Same — Loss of time or earning capacity as an element of. — See 8 A. C. 1107. For injuries to personal property. — See 6 L. 454; 12 L. 595. For libel and slander by wife. — See 30 L. 529. For malicious prosecution. — See 4 L. 255. For mental suffering disconnected from physical injury. — See 36 A. R. 306. For miscarriage. — See 32 L. 142. Same — Off-set against damages for suffering from, of suffer- ings which would have resulted from natural parturition. — See 17 L. N. S. 398. For misconduct of employee toward passenger. — See 3 L. 735. For negligence as to collection of check, limitation to actual amount lost. — See 1 L. N. S. 246. For nuisance — By whom action for maintainable — As to, gen- erally, see 1 A. C. 270; 6 A. C. 146. Same — Same — By other than property owner. — See 1" A. C. 272. Same — Same — 'Right of landlord to recover for, existing at commencement of tenancy. — See 6 A. C. 150. Same — Persons lialde for — As to. generally, see 1 A. C. 961; 10 A. C. 767. Same — Samd — Municipality for failure to abate. — See 1 A. C. 964. For personal injuries — As to. — See 10 L. 794; 11 L. 43; 11 L. 45-50; 12 L. 698; 14 L. 677; 16 L>. 268; 32 L. 142; 34 L. 831; 53 L. 631; 56 L. 312. Same — Husband's right at common law to rocovt, r for loss of time and funeral expenses occasioned by negligent killing of wife. — See 9 L. N. S. 1193. Same — Loss of services or diminished earning c;ii>a(it>-, right of infant to recover for, during minority, in an action for per- sonal injuries. — See 6 L. N. S. 552. Same — Loss of time as affected by contingent character of compensation. — See 8 L. N. S. 1228. Same — Recovery by administrator of probable accumulations of deceased as damages for his death. — See 15 L. N. S. 451. 1605 § 3281 CIVIL CODE. [Div.IV,Pt.I. / Same — Recovery by collateral kindred for negligent killing. — See 11 L. N. S. 623. For pollution of w^-ter course.^ — ^See 9 A. C. 430-434; 7 L. 457. For refusal of benefit society to levy assessment. — See 2 L. 786. For refusing to carry passenger. — See 8 A. C. 218. For torts and negligence — As to, generally, see 3 L. 733; 4 L. 255; 11 L,. 690; 30 L. 529; .34 L. 589; 55 L. 774; 56 L. 312. For trespass on realty — As to, generally, see 4 A. C. 187; 4 A. C. 340; 6 A. C. 143. Same — ^Personal wrong as aggravation of. — See 19 L. N. S. 1034. For wrongful cancellation of policy issued on assessment plan.— See 7 L. N. S. 1163. For wrongful dishonor of check — As to, generally, see 7 A. C. 818, 819; 10 A. C. 897. Same — Admissibility, in action by depositor for damages for wrongful dishonor of check, of evidence of depositor's financial credit and standing.— See 10 A. C. 988. For wrongful ejection from car. — See 1 L. 667; 3 L. 733. For wrongful eviction of tenant. — See 6 A. C. 458, 460; 7 A. C. 591. Fraud, statute of, right to recover for failure to perform con- tract not valid under. — See 6 A. C. 495. Fright as an element of. — See 12 A. C. 741; 77 A. S. 859. General rules as to. — See 2 L. 766; 3 L. 587. Health, reputation, or feelings injured. — See Kerr's Cyc. C. C. § 3301 and note par. 3. Husband or wife, right at common law to recover for services or consortium against person negligently causing death of spouse. — See 19 L. N. S. 633. In action for conversion — As to, generally, see 3 A. C. 889; 6 A. C. 834; 10 A. C. 1123. Same— Right to show insolvency of maker of chose in action in mitigation of damages. — See 6 A. C. 841. In action on contracts — As to, generally, see 3 A. C. 407, 413. Same — Exemplary damages in action on contract other than to marry. — See 3 A. C. 413. Same — Recovery of profits as damage for breach of contract to sell on commission. — See 10 A. C. 654. In action for criminal conversation.^ — See 10 A. C. 60. In action for, on infringement of copyright. — See 5 A. C. 274, 279. In action of unlawful detainer. — See 6 A. C. 458. In condemnation of property under the law of eminent do- main — ^As to, generally, see 1 A. C. 734; 8 A. C. 689; 8 A. C. 822; 9 A. C. 470; 10 A. C. 171; 10 A. C. 283; also "Eminent domain," etc., this note. 1606 Tit.II,ch.I,art.I.] DAMAGES, GENERALLY. | 328I Same — For injury to personal property or expense of re- moving it from condemned premises. — See 8 A. C. 696; also "Eminent Domain," etc., this note. In ejectment, damages for mesne profits. — See 5 A. C. 331. In injunction cases — As to, generally, see 13 L. 312; 20 L. 752; 52 L. 58; 55 L. 389. In injury to lateral and subjacent support. — See 3 A. C. 118; 5 A. C. 216; 10 A. C. 74; 5 L. N. S. 1066. Instructions as to. — See 4 A. C. 532; 7 A. C. 114; 9 A. C. 553; 9 A. C. 1222. Interest — As damages. — See Kerr's Cyc. C. C. § 3287 and note. Same — Governing law with respect to as damages. — See 56 L. 303; 62 L. 37. Same — On amount of for negligent infliction of personal in- juries. — See 14 L. 548; 18 L. 449. Same — Right to on unliquidated damages. — See 4 L. 566. Same — Upon sum allowed as. — See 18 L. 449. Intoxicating liquor, for death from sale of. — See 3 L. 327. Jurisdiction of court of equity to award compensatory. — See 14 L. N. S. 909. Land owner, what may recover for maintaining and operating railway and like public improvements. — See 5 A. S. 537. Lateral support, removal of as constituting damage or injury within meaning of constitutional provision against taking, etc., for public use without compensation. — See 5 L. N. S. 1086; also 3 A. C. 118; 5 A. C. 216; 10 A. C. 74. Liquidated — As to, see 2 L. N. S. 210: 9 L. N. S. 1134; 10 L. N. S. 204. Same — What agreements provide for. — See 30 A. R. 28. Loss of customers as element of for obstruction of highway. — See 13 L. N. S. 253. Loss of profits — As an element of damages — As to, generally, see 30 L. 57. Same — Same — For trespass. — See 52 L. 42. Same — Same — For wrongful destruction or compensation of logs or timber. — See 18 L. N. S. 250. Same — As damages. — Sec 69 A. D. 725-727; 42 A. R. 461-465; 60 A. R. 488-496: 30 A. S. 470, 471; 53 A. S. 143; 53 A. S. 9)6. Same — For infringements of patents, copyrights or trade- marks. — See 51 L. 801-823. Same — From suspension of liuslnoss wliile moving, as an ele- ment of damages in eminent domain. — See 17 L. N. S. 124. Same — In case of conversion. — See 52 L. 51-57. Same — In case' of tort. — See 52 L. 33-66. Same — In eminent domain cases. — See "Eminent domain, etc.," tliis note. Same — Same — As to, generally, see 51 L. 320-330. Same — In use of plant as an element of damage for failure to deliver materials to manufacturer. — See 3 L. N. S. 709. 1607 § 3281 CIVIL CODE. [Div.IV.Pt.I. Same — Of profits of sale or purchase. — See 52 L. 209-260. Same — On breach of contract — Generally, see 53 L. 34-47. Same — Same — For sale and purchase. — See 53 L. 83. Same — Same — For services — By employee. — See 53 L. 48-57. Same — Same — Same — By employer or owner. — See 53 L. 57-80. Same — Same — For transmission of telegrams. — See 53 L. 91- 111; see "Telegrams," this note. Same-— Same — Partnership contracts. — See 53 L. 81. Same — On possible sales as measure of damages for breach of contract where no contingent sales have been made. — See 8 L. N. S. 255. Same — Upon refusal of vendee to take article manufactured to order.^-See 4 L. N. S. 740; 18 L. N. S. 613. Master or employer — Effect of servant or agent's malice, wantonness or personal motive on amount of damages recov- erable from, for injuries to third person due to negligence of servant or agent having custody of dangerous agency. — See 10 L. N. S. 403. Mental anguish — As to, generally, see 2 L. N. S. 898; 6 L. N. S. 883; 7 L. N. S. 518; 14 L. N. S. 1242; 15 L. N. S. 775; 16 L,. N. S. 674; 17 L. N. S. 594. Same — As element of — As to, generally, see 7 A. S. 534, 30 A. C. 711; 1 L. 677; 2 L. 767; 3 L. 327; 8 L. 765; 13 L. 859; 53 L. 632. Same — Same — For causing death. — See 13 L. 860. Same- — Same — In action for breach of contract relative to corpse. — See 19 L. N. S. 564. Same — Evidence admissible to show. — See 19 L. N. S. 409. Same — In case of carriers. — See 3 L. N. S. 225; 12 L. N. S. 184; 13 L. N. S. 159. Same — In case of death. — See 13 L. 860; also "For causing death," this note. Same — Same — Caused by sale of intoxicating liquor. — See 3 L. 327. Same — In case of ejection from car. — See 1 L. 677. Same — In case of personal injuries. — See 8 L. 765. Same — In case of telegrams. — See 6 L. 669; 13 L. 859; 63 L. 532; 8 L. N. S. 249; 11 L. N. S. 497; 12 L. N. S. 886; 14 L. N. S. 499; 14 L. N. S. 927; 15 L. N. S. 277; see "Telegrams," this note. Same — In case of trespass. — See 53 L. 632. Same— On account of another's mental or physical suffering. —See 19 L. N. S. 500. Same — Right of person not mentioned in telegram and whose interest is not communicated to the company to recover for. — See 19 L: N. S. 475. Same — Right to recover for consequence upon failure of tele- graph company to transmit money to prepare corpse for burial.— See 19 L. N. S. 575. Mental suffering as an element of in personal injury case. — See 12 L. 698; also "Mental anguish," this note. 1608 Tit.ir,ch.I,art.I.] damages, generat.t.y. §3281 Mitigation of — And reduction of, as to, generally, see 26 L. 432; 57 L. 202; 67 L. 87-95. Same — By proof tiiat an injured person was suffering from disease. — See 10 A. S. 64. Same — Duty of person whose property has been controverted or destroyed to purchase like property in. — See 6 A. S. 364. Same — Evidence of provocation as in action for assault. — See 11 L. N. S. 670. Same — Failure of person injured to remove cause of injury or damage as affecting right to recover. — See 3 L. N. S. 1092. Same — Gratuity for third person. — See 1 A. C. 210, 213: 10 A.'C. 789, 794. Same — Passenger's duty to minimize for carrier's default to- ward him.— S§e 2 L. N. S. 1087. Same — Provocation. — See 1 A. C. 896. Same — Same — For assault. — See 1 A. C. 899. Same — Right to set up Judgment in criminal action in. — See 11 L. N. S. 670. Money expended by buyer in preparing goods for shipment. — See Kerr's Cyc. C. C. | 330S and note. Necessity and degree of relationsliip essential to recover for mental anguish for failure to deliver telegram announcing death or illness.— See 19 L. N. S. 374. Necessity of actual malice to justify damages for tort. — See 16 L. N. S. 440. Nominal, rule as to effect of failure to award. — See 5 A. C. •J23, 225. Nuisance — For generally, .see 13 L. 322. Same — For pollution of stream. — See 9 A. C. 530-534; 7 J,. 457. On breach of contract — As to employment. — See 5 L.. N. S. 439; 5 L. N. S. 529; 6 L. N. S. 82, 94. Same — As to real property, as to, generally, see 2 L. N. S. 713; 16 L. N. S. 210; 16 L. N. S. 768; 17 L. N. S. 1130. On breach of contract — By purchaser. — See 3 L. 589. Same— By seller.— See 3 I.. 589. Same — Of sale of per.sonal property, as to, generally, see 3 L. N. S. 1047; 5 L. N. S. 1151; 18 I.. N. S. 613. Same — To convey. — See 4 L. 670. On contract to deliver goods. — Sec 1 L. 656. Pain and suffering as an (>lemont of In person.il Injuries. — See 11 L. 45. Personal injuries — Allowance for physical services without .vldence of value thereof. — See 19 I.. N. S. 920. Same — Consideration for 'release of claim for. — See 107 A. S. 615. Same — Evidence of domestic relations of persons seeking to recover for. — See 85 A. S. 835. Same — Physical examination, power of court to enforce. — See 3 A. S. 554. 1609 § 3281 CIVIL CODE. [Div.IV.Pt.T. Personal wrong as aggravation of for trespass on realty. — See 19 L. N. S. 1034. Physical examination of person injured, power of court to enforce. — See 3 A. S. 554. Physician's services, allowance for in actions for personal injuries without evidence of the value thereof. — See 19 L. N. S. 920. Pleading — Failure to deny inaterial allegations of complaint, effect of.— See 8 A. C. 1071. Same — ^Matters in mitigation of. — See 1 A. C. 210; 10 A. C. 218, 219. Same — Necessity of alleging special damages. — See 1 A. C. 310; 7 A. C. 114. Same — Sufficiency of complaint, as to, see 3 A. C. 407; 9 A. C. 1094. Pledgee, conversion of property by invalid sale. — See 43 L. 768. Previous disease, effect of in person injured. — See 16 L. 268. Price agreed to be paid for services. — See Kerr's Cyc. C. C. § 3302 and note. Profits — As an element of, for loss of vessel. — See 6 A. C. 129, 131; also "Loss of profits," this note. Same — ^Business, as an element of for personal injuries. — See 11 A. C. 45. Same — Loss of, when an element of. — See 60 A. R. 488. Provision for forfeiture of sums paid or retained under ex- ecutory contract, effect to prevent recovery of any other dam- ages after breach. — See 4 L. N. S. 755. Proximate and remote. — Consequences, what are. — See 36 A. S. 807. Same — Damages, what are. — See 52 A. R. 157. Punitive. — See "Exemplary," this note. Same — Expenses of litigation as element or as limit of.— See 4 L. N. S. 907. Same — Liability for, for maintaining nuisances. — See 3 L. N. S. 1119. Same — For wanton failure to transport baggage. — See 9 L. N. S. 1218. Same — Refusal of conductor to listen to passenger's explana- tion as to his contract, as to justification for expulsion. — See 17 L. N. S. 344. Real property, for injury to or detention of. — See 15 L. 615, 618; 17 L. 426; 19 L. 653-659; 24 L. 595; 43 L. 560; 52 L. 42; 67 L. 712; 68 L. 71. Rebuttal of presumption — Instruction. — See Kerr's Cyc. C. C. § 3336 and note. Recoupment of, when allowed.— See 40 A. D. 320. 1610 Tit.II,ch.I,art.I.] damages, generally. §3281 Recoverable for by building contractor on breach of con- tract. — See 5 L. 275. Remote and proximate damages. — See 69 A. D. 724, 725. Remote and sentimental consideration. — See 12 L. 699. Right of action on bond to recover interest when total sum is to be made to exceed the penalty. — See 19 L. N. S. 84. Right to recover for mental suffering on account of an- other's mental or physical suffering. — See 19 L. N. S. 500. Right to recover for services rendered beyond statutory pe- riod of limitation upon breach of parol contract to make pro- vision by will. — See 6 L. N. S. 703. Right to recover from obligor under collateral contract, the damages which the obligor was compelled to pay because of breach of contract with third person, in consequence of the failure or delay in performance of collateral contract. — See 18 L. N. S. 575. Rule for stating amount of claim for damages in complaint. — ■• See Korr'w Pocket Pol. C. § 3274. Seduction as an element of on breach of promise of marriage. —See 10 L. 585. Servant's malice, wantonness, or personal motive, effect on amount of damages recoverable from master for injuries to third person due to negligence of servant having custody of dangerous agency. — See 10 L. N. S. 403. Servant wrongfully discharged — Measure of damages. — See 43 A. D. 209-214. Special circumstances known to both parties. — See 3 L. 589. Speculative. — See "Uncertain, contingent and speculative," this note. Stipulation for forfeiture in case of breach of contract as penalty or liquidated damages. — See 1 A. C. 244; 10 A. C. 225. Telegraph companies, recovery against for failure to trans- mit or deliver message. — See 117 A. S. 286. Telegram — Delivery or non-delivery of. — See 7 L. 593: 9 L. 669; 10 L. 515; 53 L. 738. Same — Same — Injury to feeling caused l>y as element of. — See 2 L. 767; 9 L. 669; 13 L. 859. Same — Same — Loss of profit as an element of. — See .t3 L. 191. Same — Failure of company to transmit money liy, to prepare corpse for burial, right to recover for mental anguish, con- sequence upon. — See 19 I>. N. S. 575. Same — Failure to deliver announcing death or illness, neces- sity and degree of relationship essential to r<'Covery for mental anguish. — See 19 L. N. S. 374. Same — Right of person not mentioned in and whose interest is not communicated to the company to recover for mental an- guish.— See 19 L. N. S. 475. 1611 § 3282 CIVIL CODE. [Div.IV,Pt.I. That damages are exclusive of exemplary damages and in- terest, unless latter are expressly named, see post § 3357. That damages must be reasonable, see post § 3359. Trespass — Loss of profits as an element of damage for. — See 52 L. 42. Same — Extent of liability for consequential injuries. — See 53 L. 626-634. Uncertain, contingent, and specvilative — As to, generally, see 6 A. C.i-973; 10 A. C. 649. Same — Prospective as element of recovery for total loss of vessel by collision. — See 6 A. C. 131. Same — Recovery of profits as damages for breach of contract for sale on commission. — See 6 A. C. 976; 10 A. C. 654. Same — Remote and sentimental consideration. — See 12 L. 699. Unlavi^ful and negligent acts, discussion as to whether meas- ure of liability differs in regard to such acts. — See 36 A. S. 819- 821. Upon dissolution of attachment — As to, generally, see 3 A. C. 720; 4 A. C. 519; 7 A. C. 545, 547; 10 A. C. 951. ' Same — Right to recover counsel fees as. — See 10 A. C. 954. Value of time lost as an element of in personal Injuries. — See 10 L. 794; 11 L. 45. Verdict in action for — As to, generally, see 4 A. C. 125; 4 A. C. 556; 8 A. C. 746; 8 A. C. 902. Same — Excessive in suits for personal injuries. — See 14 L. 677. Same — Inadequacy of damages awarded in personal action as ground for setting aside. — See 8 A. C. 903. Same — Set aside as excessive in personal injtiry cases. — See 11 L. 47. Same— Set aside for inadequacy of in personal injury cases. — See 11 L. 50. Wealth of defendant, when may be shown to enhance, in action for libel and slander. — See 3 A. R. 377. What recoverable as. — See 69 A. D. 725. When single recovery bars all subsequent action for. — See 59 A. R. 351. Whether liquidated or a penalty. — See 1 A. D. 331. Within discretion of jury in personal injury cases. — See 11 L. 46. §3282. DETRIMENT, WHAT. Detriment is a loss or harm suffered in person or property. History: Enacted March 21, 1872. As to many miscellaneous matters as to damages generally, see note § 3281, ante. 1612 Tit.II,ch.T,art.I.] INJURIES AFTER SUIT. § 3283 As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, post. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 3282, note. §3283. INJURIES RESULTING OR PROBABLE AFTER SUIT BROUGHT. Damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 75 C. 558, 563, 17 P. 687, 689 (cited); 117 C. 305, 312, 49 P. 189 (construed); 123 C. 428. 432, 56 P. 103 (referred to); 126 C. 1, 7, 58 P. 315 (cited); 130 C. 285, 287, 62 P. 515 (applied); 136 C. 129, 130, 68 P. 476 (cited); 150 C. 624, 626, 627, 89 P. 599 (when- ever by one act a permanent injury is done, damages are as- sessed once for all); 151 C. 113, 117, 91 P. 522 (cited); 151 C. 271, 276, 90 P. 706 (what constitutes damage). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, post. 1613 § 3287 -CIVIL CODE. [Div.IV.Pt.I. ARTICLE II. INTEREST AS DAMAGES. § 3287. Person entitled to recover damages may recover inter- est thereon. § 3288. In action other than contract. § 3289. Limit of rate by contract. § 3290. Acceptance of principal waives claim to interest. §3287. PERSON ENTITLED TO RECOVER DAMAGES MAY RECOVER INTEREST THEREON. 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, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 25 pars, annotation. 57 C. 356, 357 (applied); 63 C. 371, 374 (applied); 72 C. 322, 330, 14 P. 12, 16 (cited); 72 C. 498, 509, 1 A. S. 75, 14 P. 190, 196 (cited); 89 C. 632, 635, 27 P. 67, 68 (referred to); 33 P. 1130, 1132 (applied); 103 C. 157, 162, 37 P. 199 (applied); 106 C. 224, 234, 39 P. 758 (applied); 106 C. 441, 447, 39 P. 853 (referred to); 106 C. 566, 572, 573, 39 P. 933 (applied); 110 C. 311, 316, 42 P. 811 (con- strued); 114 C. 396, 400, 46 P. 290 (applied — right to interest from time of filing complaint); 121 C. 233, 237, 240, 53 P. 689, 1092 (referred to); 126 C. 9, 15, 58 P. 312, 313 (applied); 130 C. 426, 430, 62 P. 616 (applied); 141 C. 692, 697, 75 P. 564 (applied); 146 C. 281, 285 (interest is not allowable when — mechanics' liens), 79 P. 968, 969, 970 (cited); 3 C. A. 263, 266 (applied but erroneously cited as §3278), 84 P. 159 (same error); 6 C. A. 479, 482, 92 P. 519, 520 (right to interest — goods sold). As to interest in actions for conversion, see Kerr's Cyc. C. C. § 3336 and note. As to legal rate of interest, see Kerr's Cyc. C. C. § 1917 and note. As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, post. 1614 Tit.II.ch.I.art.II.] limiting rate. §§3288-3290 §32H8. I> ACTION OTHER THAN CONTRACT. In an action for the breach of an obligation not arising from the contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 72 C. 498, 509, 1 A. S. 75, 14 P. 190 (construed); 106 C. 441, 448, 39 P. 853 (construed with other sections); 109 C. 96, 99, 41 P. 786, 29 L. 755 (referred to). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, post. § 3289. LIMIT OF RATE BY CONTRACT. Any legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. History: Enacted March 21, 1872. See Kerr's Cj'C. C. C. for 4 pars, annotation. 136 C. 368, 371, 68 P. 1032 (referred to). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to tlie measure of dam- ages, see note § 3300, post. s:j2JM). acceptance of principal waives claim TO interest. Accepting payment of the whole principal, as such, waives all claim to interest. Ili.story: Enacted March 21. 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 100 C. 18, 22, 34 P. 510 (applied); 133 C. 191, 194, 65 P. 381 (applied). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, post. 1615 § 3294 CIVIL CODE. [Div.IV.Pt.I. ARTICLE III. EXEMPLARY DAMAGES. § 3294. Exemplary damages, in what cases allowed. §3294. EXEMPLARY DAMAGES, IN WHAT CASES AL- LOWED. In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover dam- ages for the sake of example and by way of punishing the defendant. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 421, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905,' p. 621. See Kerr's Cyc, C. C. for 60 pars, annotation. 64 C. 272, 28 P. 253 (applied); 68 C. 32, 8 P. 527 (referred to); 74 C. 148, 150, 15 P. 452, 453 (applied); 75 C. 563, 566, 17 P. 685, 686 (cited); 76 C. 532, 534, 18 P. 668, 669 (cited); 77 C. 208, 212, 19 P. 382, 383 (referred to); 80 C. 135, 137, 138, 22 P. 70, 71 (con- strued); 85 C. 191, 192, 24 P. 656 (applied); 93 C. 59, 71, 28 P. 845, 848 (cited); 31 P. 263 (referred to); 97 C. 1, 6, 33 A. S. 157, 31 P. 1112 .(applied); 101 C. 411, 413, 35 P. 1024 (applied); 105 C. 284, 289, 290, 45 A. S. 40, 38 P. 903 (applied); 107 C. 262, 269, 40 P. 392 (cited) ; 44 P. 1018, 1019 (applied) ; 114 C. 447, 450, 46 P. 286 (cited); 121 C. 216, 218, 53 P. 559 (referred to); 57 P. 394, 395 (referred to); 132 C. 316, 319, 64 P. 409 (referred to); 138 C. 405, 414, 71 P. 506, 507 (construed); 139 C. 514, 518, 521, 73 P. 418 (construed with another section); 140 C. 357, 363, 364, 73 P. 1050 (construed); 142 C. 256, 260, 261, 100 A. S. 123, 71 P. 165, 75 P. 842 (cited and referred to); 151 C. 1, 15, 89 P. 1097 (assumed that "actual" means express — presumed malice is closely assimilated to implied malice of criminal law) ; 5 C. A. 126, 128, 89 P. 851 (cited — simple negligence does not justify award of punitive damages). As to damages for wrongs generally, see Kerr's Cyc. C. C. §§ 3333 et seq. and notes. As to malice, fraud, or oppression, generally, see Kerr's Cyc. C. C. § 3294, note pars. 24-25 this note. As to malice in conversion of wheat, see Kerr's Cyc. C. C. § 3294, note par. 35. 1616 TitJI.ch.I.art.IIL] EXEMPLARY. § 3294 As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, post. As to penal damages, see Kerr's Cyc. C. C. §§ 3344 et seq. and notes. Allowance of exemplary damages — In general. — See 27 A. D. 684-689; 50 A. D. 767-775; 28 A. S. 870-883. Same — Against corporations. — See 28 A. S. 876, 877; 59 A. S. 589-609. Same — Against municipal corporations. — See 59 A. S. 602. Same — For wrongful injuries to animals. — See Kerr's Cyc. C. C. § 3340 and note. Same — For wrongful or malicious attachment. — See 68 A. S. 266-280. Same — Liability of principal or master for act of agent or servant. — See 62 A. D. 379-389. Excessive damages as ground for new trial. — See Kerr's Cyc. C. C. P. § 656 note subd. 5. Libel or slander, how stated in complaint. — See Kerr's Cyc. C. C. P. § 460 and note. 1617 § 3300 CIVIL CODE. [Div.IV,Pt.I. CHAPTER II. MEASURE OF DAMAGES. Article I. Damages for Breach of Contract, §§ 3300-3319. II. Damages for Wrongs, §§ 3333-3341. III. Penal Damages, §§ 3344-3348. IV. General Provisions, §§ 3353-3360. ARTICLE I. DAMAGES FOR BREACH OP CONTRACT. § 3300. Measure of damages for breach of 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 seizin, etc. What is. § 3305. Detriment caused by breach of covenant against en- cumbrances, is what. § 3306. Breach of agreement to convey real property. § 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, etc. § 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. MEASURE OF DAMAGES FOR BREACH OF CO^'TRACT. For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proxi- 1618 Tit.II,ch.II,art.I.] MEASURE OF. § 3300 mately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 266. II > See Kerr's Cyc. C. C. for 22 pars, annotation. 67 C. 406, 408, 7 P. 810, 812 (referred to); 67 C. 464, 466, 8 P. 40, 41 (construed); 89 C. 464, 466, 23 A. S. 488, 26 P. 967 (applied); 97 C. 490, 493, 32 P. 563 (applied); 98 C. 210, 214, 33 P. 53 (construed and applied); 100 C. 93, 97, 34 P. 625 (con- strued and applied); 102 C. 55, 68, 41 A. S. 151, 36 P. 368 (cited); 103 C. 454, 458, 37 P. 466 (cited); 116 C. 239, 244, 48 P. 62 (cited); 130 C. 309, 314 (applied, but erroneously cited as § 3330), 62 P. 562, 563 (citation of §3300 omitted), 1058; 140 C. 339, 342, 73 P. 1055 (construed and applied); 148 C. 596, 600, 84 P. 43 (considered in action for breach of contract to organize cor- poration and to issue stock); 150 C. 51, 56, 87 P. 1093 (distinction between damages for breach of contract and damages for tort); 1 C. A. 429, 431, 82 P. 634 (libel — recovery of damages is not limited to such as result from injury to business); 2 C. A. 170, 173, 83 P. 175 (applied to attached oil stock, purchased for resale); 4 C. A. 488, 497, 88 P. 512 (applied to breach of lease of personal property with option to purchase); 144 F. 886, 895 (applied with other sections — contract to furnish tin cans). MEASURE OP DAMAGES. As to many miscellaneous matters as to damages generally, see note § 3281, ante. Actual damages as basis for award of exemplary damages. — • See 7 A. C. 896. Against promoter of corporation. — See 18 L. N. S. 1131. Against vendee for refusing to perform in contract to pur- chase. — See 67 A. D. 275. Conflict of laws concerning. — See 91 A. S. 714. Eminent domain, what recoverable in the exercise of the right of — Allowance of interest on value of property destroyed by negligent construction of railroads, canals, etc. — See 18 L. 454. Same — Amount recoverable by tenant and reversioner. — See 21 L. 217, 223. Same — Benefits considered. — See 7 L. 289. Same — Depreciation of neighboring property. — See S L. 330. Same — Diminution in value for operation of trains. — See 9 L. 298. Same — Effect of preserving to owner an estate, rights of ease- ment.— See 26 L. 751-758. Same — Expert testimony as to value and damages, conclusive- ness of.— See 42 L. 767. 1610 § 3300 CIVIL CODE. [Div.IV.Pt.I. Same — In pollution of water as an element of for taking rail- road right of way. — ^See 47 L. 782. Same — In taking of water. — See 58 L. 253. Same — In taking property for canal. — See 61 L. 841. Same — Inconvenience caused.- — See 2 L. 217. Same — Injury reasonably anticipated. — See 2 L. 218. Same — Injury to easement of abutting owners. — See 14 L. 381. Same — Injury to tract as a whole. — See 2 L. 218; 3 L. 84; 9 L. 98.' ■ Same — Market value. — See 3 L. 83; 11 L. 604; 12 L. 611. Same — Profit or loss as affecting. — See 51 L. 320. Same — Special damages. — See 2 L. 218. Same — Taken for railroad purposes, generally, see 2 L. 219; 7 L. 409; 8 L. 330; 9 L. 299. Same — Value of — Improvements made by one taking property. —See 16 L. 805. Same — Same— Land for its uses and purposes. — See 2 L. 219. Same — Same^ — Tract cut off. — See 2 L. 219. Same — What injuries not considered. — See 2 L. 218. Expenses of care and nursing.- — See 5 A. C. 146; 10 A. C. 285. For allowing land to become infected with weeds. — See 12 L. N. S. 88. For an unconditional trespass. — See 54 A. R. 421. For appropriation of mineral lands. — See 2 A. C. 966. For breach of an executory contract. — See 42 A. D. 48. For breach of contract — By carrier for carriage. — See 53 L. 84. Same — Preventing operation of industrial business in con- templation, but not established and in actual operation. — See 19 L. N. S. 155. Same — To furnish water for irrigation. — See 19 L. N. S. 938. For breach of contract of sale — As to, generally, see 2 A. C. 997. Same — Fixed charges. — See 2 A. C. 997. Same — On contract for goods to be manufactured. — See 7 A. C. 1172, 1175. Same — On executory contract. — See 2 A. C. 814; 2 A. C. 997. Same — Value at place of delivery. — See 9 A. C. 188. For breach of covenant for quiet enjoyment. — See 53 A. S. 116. For breach of warranty — In sales. — See 5 A. C. 586, 588; 7 A. C. 935, 937. Same — Of title. — See 24 A. S. 266. For carrier's loss of goods. — See 2 L. N. S. 773. For carrying passenger beyond destination. — See 17 L. N. S. 1226-1230. For causing death of a human being. — See 12 A. S. 375. For conversion or failure to deliver household goods. — See 3 A. C. 891. For damages to goods received for cold storage. — See 52 L. 108. 1620 Tit.ir,ch.II,art.I.] MEASURE OF. §3300 For death by wrongful act — As to, generally, see 3 A. C. 53; 6 A. C. 71. Same — For death of parent or husband. — See 3 A. C. 98, 103. Same — In suit by next of kin. — See 10 A. C. Ill, 113. For enticement of servant. — See 5 L. N. S. 1100. For fraudulent representations in the sale or exchange of real estate. — See 8 L. N. S. 804; 16 L. N. S. 818. For injury — To crops.— See 1 A. C. 761; 6 A. C. 946. Same — To lateral and subjacent support. — See 5 A. C. 219; 10 A. C. 77. Same — To or destruction of growing crops. — See 6 A. C. 949; 12 L. N. S. 267. Same — To or destruction of trees or shrubbery in the value for their timber or fire wood. — See 11 L. N. S. 930. Same — To public land before homesteader receives patent. — See 17 L. N. S. 958. For loss or destruction of manuscript, legal papers, and the like.— See 8 L. N. S. 369. For mining and carrying away coal. — See 33 A. R. 282. For negligence of telegraph company — As to, generally, see 1 A. C. 346, 359. Same — Failure to transmit money. — See 7 A. C. 531, 535. Same — Loss of professional fee. — See 5 A. C. 730. Same — Mental anguish as an element of. — See 1 A. C. 349, 355; 2 A. C. 52; 7 A. C. 1068; also "Mental pain and suffering" this note. Same — Message showing damage will result. — See 5 A. C. 52; 10 A. C. 476. Same — Necessity that damages for failure to transmit be con- tomplated.— See 1 A. C. 361; 10 A. C. 479. Same — Quoting selling price or offering bid. — See 3 A. C. 424, 429; 3 A. C. 712. Same — Where rule declared by statute. — See 2 A. C. 52. Same — Who may recover. — See 1 A. C. 35S; 10 A. C. 643, 648. For personal injuries in action for bre.Tcli of w.nrr.inty. — See 5 A. C. 586. 588; 7 A. C. 935. 937. For preventing exhibition or show by breach of contract of carriage. — See 4 L. N. S. 569. For purcliasor's refusal to accept goods speclflcnlly manu- factured for him. — See 18 L. N. S. 613. For servant's wrongful dlscliarge. — See 43 A. D. 209. For the destruction of property having no market value at the place of destruction. — See 9 A. C. 1148; 62 A. S. 791. For the occasional flooding of land. — See 3 L. N. S. 873. For wrongful cutting or destruction of standing timber. — See 18 L. N. S. 244-250. For wrongful working of mine. — See 8 A. C. 36, 43. 1621 § 3301 CIVIL CODE. [Div.IV,Pt.I. In actions for breach — Of covenant of quiet enjoyment. — See 58 A. R. 606. Same — Of covenant of seizor or good right to convey. — See 99 A. D. 73. Same — Of warranty of soundness. — See 40 A. D. 303. In actions of trespass or trover for property taken by mis- take.— See 36 A. R. 770. In eminent domain, etc. — Benefits set off against. — See 9 L. N. S. 781,-837. In trover — Wlien tlie value of the property has been enhanced by the wrong-doer. — See 24 A. D. 70. Same — ^Wliere tlie owner of a special interest is tlie plaintiff. — See 50 A. D. 678. Interest as an element of. — See 1 A. C. 761, 763; 4 A. C. 128; 6 A. C. 30; 8 A. C. 298. Loss of profit on possible sales, for breach of contract where no contingent sales have been affected. — See 8 L. N. S. 255. Loss of time and earning capacity. — See 4 A. C. 205; 8 A. C. 1107. Market value of property — As to, generally, see 5 A. C. 216; 7 A. C. 591; 9 A. C. 1143. Same — For loss or destruction of property having no market value. — See 9 A. C. 1148. Mental pain and suffering as an element of. — See 1 A. C. 346; 2 A. C. 55; 5 A. C. 578, 579; 6 A. C. 46; 7 A. C. 1068; 9 A. C. 1050, 1051; 10 A. C. 722. On breach by vendee of executory contract for sale of land. — See 4 A. C. 789. On failure of title to property sold. — See 53 A. R. 788. Pecuniary circumstances of the parties as affecting. — See 67 A. D. 562. Profits, loss of, in actions for breacli of contract to sell. — See 42 A. R. 461. Recovery . from landlord for injury to tenant for defect in premises. — See 34 L. 831. Vendee's damages in a breach of contract to convey real property.— See 106 A. S. 963. When lands are taken for public use. — See 88 A. D. 113; also "Eminent domain" amount recoverable, etc. Where lessee is prevented from taking possession where he is afterward evicted by the lessor. — See 100 A. D. 428. § 8301. DAMAGES MUST BE CERTAIN. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin. History: Enacted March 21, 1872. 1622 I i Tit.II,ch.II,art.I.] liquidated. §§3302,3303 See Kerr's Cyc. C. C. for 6 pars, annotation. 66 C. 536, 538, 6 P. 417 (construed with §1671); 101 C. 275, 280, 35 P. 865 (applied); 140 C. 339, 342, 73 P. 1055 (applied). As to many nniscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. As to mental anguish as element of damages, see Kerr's Cyc. C. C. § 3300 and note. §3302. BREACH OF tONTRACT TO PAY LIQUIDATED SUM. The detriment caused by the breach of an o1)ligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 76 C. 621, 623, 18 P. 796, 797 (cited) ; 79 C. 218, 223, 12 A. S. 139. 21 P. 743, 744 (applied) ; 89 C. 464. 466, 23 A. S. 488, 26 P. 9G7 (referred to as inapplicable); 107 C. 577, 585, 40 P. 1026 (cited); 149 C. 32. 34, 84 P. 663, 5 L. N. S. 870 (referred to — action barred under §339); 46 F. 355, 356 (scope and purpose of section). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to tlie measure of dam- ages, see note § 3300, ante. Lesee's abandonment of premises during term. — See Kt-rr's Cyc. C. C. § 3300 and note. Liquidated damages. — See 27 A. S. 717. §3303. DISHONOR OF F(M{EIG> BILLS OF EX( H VNOE. For the dishonor of foreij^n bills of exchange the damages are prescribed by sections thirty-two hundred and thirty- five, thirty-two hundred and thirty-seven, and thirty-two hun- dred and thirty-eight. HiNtory: Enacted Marcli 21, 1872. See Kerr's Cyc. C. C. § 3275 and note. As to many miscellaneous matters as to damages generally, see note § 3281. ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. 1623 §§ 3304, 3305 CIVIL CODE. [Div.IV,Pt.I. §3304. DETRIMENT CAUSED BY BREACH OF COVE- NANT OF SEIZIJf, ETC., WHAT IS. 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 only, such proportion of the price as the value of the prop- erty affected by the breach bore at the time of the grant to the value of the whole property; 2. Interest thereon for the time during which the grantee derived no benefit from the property, not exceeding five years; 3. Any expenses properly incurred by the covenantee in defending his possession. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 70 C. 79, 84, 11 P. 505, 507 (applied); 136 C. 26, 29, 68 P. 321, 322 (cited). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. Covenant for quiet enjoyment, effect and scope of covenant and damages for breach, see 53 A. S. 113-120. Damages for breach of covenant in deed. — See 1 A. D. 9, 10. §3305. DETRIMENT CAUSED BY BREACH OF COVE- NANT AGAINST ENCUMBRANCES, IS WHAT. The detri- ment caused by the breach of a covenant against encum- brances 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. History: Enacted March 21, 1872. 1624 Tit.II,ch.II,art.I.] BREACH OF AGREEMENT. §§3306.3307 §3300. BREACH OF AGREEMEXT TO COXVEY REAL PROPERTY. The detriment caused by the breach of an agreement to convey an estate in real property, is deemed to be the price paid, and the expenses 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 properly incurred in preparing to enter upon the land. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 55 C. 38, 41 (construed); 78 C. 529. 535, 21 P. 179 (referred to);- 81 C. 214, 215, 217, 2.2 P. 546, 547 (applied); 89 C. 474, 476, 26 P. 1073. 1074 (construed); 116 C. 515, 517, 48 P. 498 (construed and applied); 121 C. 42, 46. 53 P. 642 (referred to); 123 C. 1. 5, 10, 69 A. S. 17, 55 P. 713, 43 L. 199 (cited); 61 P. 472, 475 (not applicable to action to rescind contract of sale of land for fail- ure of title); 147 C. 299, 302, 305. 81 P. 958 (construed with S3386); 149 C. 122, 128, 84 P. 835 (applied — contra'ct for ex- change of lands); 4 C. A. 354. 356. 88 P. 282 (applied — effect of tender). As to many miscellaneous matters as to damages generally, see note § 3281. ante. As to many miscellaneous matters as to the measure of dam- ages, see note $ 3300, ante. Contracts for sale of land — Defective title. — Sec 20 A. S. 217. Damages recoverable on breach of warranty of title. — See 24 A. S. 266-268. Measure of damages for broach of contract to convey realty. — Sec 100 A. D. 467. 468. Presumption that breach cannot be adequately relieved by money compensation. — See Kerr's Cyc. C. C. S 3387 and note. Recovery back of purchase money where vendor falls to niak<' deed. — See Kerr's Cyc. C. C. i 1731 and note. S3307. HKi:V( II OI A(iREE.ME>T TO HIV HKAl, IMMM'- ERTY. The detriment caused by the breach of an agree- ment to i)urchase an estate in real property, is deemed to be the excess, if any. of the amount which would have been due to the seller, under the cn-:i;)n; 47 A. R. 381-387: 50 A. R. 569-574; 52 A. R. 157-166: 1 A. S. 656. Trespass upon land. — Sec Kerr's Cyc. C. C. $ 3334 and note pars. 5-7. §3334. WRinfiFl'L (KCIT.VTION l)V HFVL PHtU'EKTY. The detriment caused by tlie \vr()iii;ful occupation of real Korrs C. C. — 52 1633 § 3335 CIVIL CODE. [Div.IV,Pt.I. property, in cases not embraced in sections thirty-three hun- dred and tliirty-five, thirty-three hundred and forty-four, and thirty-three hundred and forty-five of this code, or section eleven hundred and seventy-four of the code of civil proced- ure, is deemed to be 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 recov- ering the possession. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 72 C. 322, 330, 14 P. 12, 16 (cited); 77 C. 467, 472, 19 P. 872, 874 (cited); 125 C. 563, 566, 58 P. 130 (referred to); 1 C. A. 266, 270, 82 P. 85 (applied — unlawful detainer). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. Lessee prevented from taking possession, or afterwards evicted — Measure of damages. — See 100 A. D. 428, 429; 58 A. D. 606-614. Value of improvements, set off, when. — See Kerr's Cyc. C. C. P. § 741 and note. §3335. WILFUL HOLDING OVER. For wilfully holding over real property, 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, without the consent of the party immediately entitled after such termination, the meas- ure of damages is the value of the profits received during such holding over. Hi-story: Enacted March 21, 1872. 125 C. 563, 566, 58 P. 130 (referred to). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the ineasure of dam- ages, see note § 3300, ante. "When estate! of trustee ceases.^ — See Kerr's Cyc. C. C. § 871 and note. 1634 Tit.II,ch.II,art.II.] CONVERSION. §3336 §3336. COVEKSIOX OF PERSONAL PROPERTY. The detriment caused b3^ 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 reasonable diligence, the highest mar- ket 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. History. Enacted March 21, 1872; amended Marcli 30, 1874, Code Amdts. 1873-4, p. 26G; January 22, 1878, Code Amdts. ' 1877-8, p. 90. See Kerr's Cyc. C. C. for 29 pars, annotation. 50 C. 112, 115 (cited); 53 C. 274, 278, 279, 280 (cited); 54 C. 145, 146 (cited); 54 C. 192, 194, 195 (referred to as inapplicable); 57 C. 325, 326 (cited); 58 C. 241, 242, 243 (construed): 61 C. 629, 634 (cited); 71 C. 68, 69, 11 P. 847, 848 (cited with §3338); 76 C. 60. 70, 9 A. S. 164, 18 P. 100 (cited); 77 C. 267, 279, 11 A. S. 279, 19 P. 494, 495. 499 (referred to); 79 C. 181, 183, 21 P. 729, 730 (cited); 85 C. 191, 194, 195, 24 P. 656, 657 (construed and applied); 86 C. 459, 461, 462, 25 P. 12, 13 (cited); 90 C. 10, 14, 27 P. 159 (cited); 27 P. 296 (applied); 91 C. 119, 121, 122, 27 P. 601, 602, 603 (applied); 92 C. 159, 173. 28 P. 558, 562 (re- ferred to); 96 C. 152, 154, 30 P. 1114 (referred to as inapplic- able); 112 C. 208. 214, 44 P. 476 (cited); 44 P. 1018 (cited); 115 C. 39, 49, 46 P. 892 (cited); 57 P. 394, 397 (cited — actions not improperly joined); 130 C. 190, 193, 62 P. 481 (referred to as inapplicable); 130 C. 230, 236, 62 P. 395 (cited); 131 C. 149, 151. 63 P. 157 (cited); 132 C. 316. 319. 64 P. 409 (referred to as In- applicable); 136 C. 538, 541, 69 P. 252 (cited); 1 C. A. 349. 356, 82 P. 265 (attorneys' fees are not recoverable under this sec- tion, nor as costs in action); 7 C. A. 132, 134, 93 P. 1044 (con- strued wltli § 3333 — damages for conversion of horses are lim- ited to those specified in §3336); 103 F. 841. S4S (applied— attor- neys' fees as element of compensatory damages): 109 F. 369. 370. 378. 48 C. C. A. 413. 54 L. 711 (cited). As to judgment in detinue, see Kerr's Cyc. C. C. P. S 667 and note. As to many miscellaneous matters as to damages generally, see note § 3281. ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300. ante. 1635 §§3337,3338 CIVIL CODE. [Div.IV.Pt.I. Alternative form of judgment prescribed. — See Kerr's Cyc. C. C. P. § 667 and note. Breach of covenant to deliver personal property paid for. — See Kerr's Cyc. C. C. § 3309 and note. Cognate section, providing damages in trover. — See Kerr's Cyc. C. C. § 3333 and note. Constitutionality of amendment. — See Kerr's Cyc. C. C. § 3333 and note. Conversion by officers and agents of corporations. ^See 48 A. S. 922, 923. Conversion of personal property sufficient to svistain trover. — See 24 A. S. 795-819. Damages for wrongful or malicious attachment. — See 68 A. S. 266-280. Damages recoverable in trover. — See 14 A. S. 19. Executor's nonfeasance. — See Kerr's Cyc. C. C. P. § 3333 and note par. 11. General rule is value at time of conversion and interest. — See 24 A. D. 71-73. Liability of innocent purchasers. — See 24 A. D. 85. Limitation on liability of depositary. — See Kerr's Cyc. C. C. P. § 1840 and note. Measure of damages in trover. — See 11 A. D. 526-528. Measure of damages where value enhanced by wrongdoer. — See 24 A. D. 70, 71, 73-77. Mining — Damages for wrongfully extracting ore. — See Kerr's Cyc. C. C. P. § 3334 and note. Non-existing property. — See Kerr's Cyc. C. C. P. § 3309 and note par. 3. Property converted by mistake. — See 24 A. D. 77-85; 36 A. R. 770. §3337. SAME. [APPLICATION TO BENEFIT OF OWN- ER.] The presumption declared by the last section cannot be repelled, in favor of one whose possession was wrongful from the beginning, by his subsequent application of the property to the benefit of the owner, without his consent. History: Enacted March 21, 1872. §3338. DAMAGES OF LIENOR. One having a mere lien on personal property, cannot recover greater damages for its conversion, from one having a right thereto superior to his, after his lien is discharged, than the amount secured by 1636 Tit.TI.ch.TI.art.TI.] SEDUCTION. §§3339,3340 the lien, and the compensation allowed by section thirty-three hundred and thirty-six for loss of time and expenses. IliNtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 71 C. 68, 70, 71, 11 P. 847, 848 (cited with §3336); 91 C. 119. 122, 27 P. 601, 602 (construed and applied); 126 C. 288, 290, 58 P. 691 (applied); 128 C. 221, 226, 60 P. 679, 680 (applied). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. Limitations on right to levy on mortgaged property. — See Kerr's Cyc. C. C. P. § 2969 and note. Measure of damages for conversion of collateral security. — See 32 A. S. 725, 726. Mortgaged property may be levied upon. — See Kerr's Cyc. C. C. P. § 2968 and note. §3339. SEDrCTlON. The damages for seduction rest in the sound discretion of the jury. IIlMtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. As to many miscellaneous matters as to damages generally, see note § 32S1, ante. As to many miscellaneous matters as to tlie measure of dam- ages, see note § 3300, ante. Action by unmarried female. — See Kerr's Cyc. C. C. P. $ 374. Breach of promise of marriage. — See Kerr's Cyc. C. C. V. § 3319 and note. Exemplary damages. — See Kc-rr's Cyc. C. C. § 3294 and note. Measure of damages In action for seduction. — See 44 A. D. 177, 178. Parent or guardian — Action liy. — See Kerr's Cyc. C. C. P. i 375 and note. §3340. INJIKIKS TO .VMMAI.S. l\)r wronk'ful injuries to animals hoin^ subjects of i^roiMTly. committed wilfully or by gross negligence, is disregard of humanity, exemplary damages may be given. Ilintoryi iinacted Marcli 21, 1S72. See Kerr's Cyc. C. C. for 2 pars, annotation. 93 C. 393, 394 (erroneously cited for S 3440). 29 P. TO (.same error). 1637 § 3341 CIVIL CODE. [Div.IV,Pt.I. As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. §3341. SAME. [SHEEP-KILLING DOGS.] The owner, possessor, or harborer of any dog or other animal, that shall kill, worrj', or wound any sheep, angora goat, or cashmere goat, or poultry, shall be liable to the owner of the same for the damages and costs of suit, to be recovered in 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, or harborer of such dog or other animal, had knowledge of the fact that such dog or other animal would kill, wound or worry sheep, goats, or poultry. 2. Any person on finding any dog or dogs, or other animal, not on the premises of the owner or possessor of such dog or dogs, or other animal, worrying, wounding, or killing any sheep, angora or cashmere goats, may, at the time of finding such dog or dogs, or other animal, kill the same, and the owner or owners thereof shall sustain no action for damages against any person so killing such dog or dogs, or other animal. History: Enacted March 13, 1883, Stats, and Amdts. 1883, p. 283; amended February 27, 1903, Stats, and Amdts. 1903, p. 54. See Kerr's Cyc. C. C. for 2 pars, annotation. 80 C. 545, 548, 22 P. 219, 220 (construed). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. Exemplary damages. — See Kerr's Cyc. C. C. § 3294 and note. Property in dogs.— See 26 A. S. 80S; 67 A. S. 288-299. 1638 Tit.II.ch.II.art.III.] holding over. §§3344,3345 ARTICLE III. PENAL, DAMAGES. S 3344. Failure to quit, after notice. § 3345. Tenant wilfully holding over. § 334fi. Injuries to trees, etc. § 3346a. Damages for firing woods. § 3347. Injuries inflicted in a duel. S 3348. Same. §3344. FAILURE TO QUIT, AFTER NOTICE. If any tenant give notice of his intention to quit the premises, and does not deliver up the possession at the time specified in the notice, he must pay to the landlord treble rent during the time he continues in possession after such notice. HUtory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 125 C. 563, 566, 58 P. 130 (construed and applied with other sections). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. §334.i. TENANT WILFULLY HOLDING OVER. If any tenant, or any person in collusion with the tenant, holds over any lands or tenements after demand made and one month's notice, in writing given, requiring the possession thereof, such person holding over must pay to the landlord treble rent during the lime he continues in possession after such notice. IliNtory: Enacted March 21. 1S72. See Kerr's Cyc. C. C. for 23 pars, annotation. 125 C. 563, 566, 5S P. 130 (construed and applied witii <»thor sections); 1 C. A. 259. 261. SI P. 1120 (facts stating cause of action in ejectment, witli proper prayer); 1 C. A. 266. 270, 82 P. 85 (applied — unlawful detainer). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscollaneous matters as to the measure of dam- ages, see note § 3300, ante. 1639 §§ 3346-3347 CIVIL CODE. [Div.IV,Pt.I. §3346. INJURIES TO TREES, ETC. For wrongful inju- ries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such a sum as would compensate for the actual 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 taken 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 18 pars, annotation. 108 C. 197, 207, 41 P. 293 (construed and applied with § 733 C. C. P.); 139 C. 559, 560, 73 P. 433 (construed and applied). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. § 3346a. DAMAGES FOR FIRING WOODS. Every person negligently setting fire to his own woods, or negligently suffering any fire to extend beyond his own land, is liable in treble damages to the party injured. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 421, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 621, incorporating into the C. C. the principle declared in Pol. C. § 3344. §3347. INJURIES INFLICTED IN A DUEL. If any per- son slays or permanently disables another person in a duel' in this state, the slayer must provide for the maintenance of the widow or wife of the person slain or permanently dis- abled, and for the minor children, in such manner and at such cost, either by aggregate compensation in damages to each, or by a monthly, quarterly, or annual allowance, to be determined by the court. History: Enacted March 21, 1872, based on Stats. 1855, p. 152. As to duels and challenges, see Kerr's Cyc. Pen. C. §§ 225-232 and notes. 1640 ^1 II Tit.II,ch.II,art.IV.] INJURES— VALUE. §§ 3348, 3353 As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. § 3348. SAME. If any person slays or permanently dis- ables another person in a duel in this state, the slayer is liable for and must pay all debts of the person slain or per- manently disabled. History: Enacted March 21, 1872. 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. YALUE, HOW ESTIMATED IN FAVOR OF SELLER. In estimating damages, the value of the property to a seller thereof is deemed to be the price which 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 have sufficed, with reasonable diligence, for the seller to effect a resale. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 94 C. 5, 18, 29 P. 406, 410 (construed and applied); 106 C. 441, 446, 39 P. 853 (construed and applied with other sections); 53 P. 693, 694 (construed and applied); 140 C. 624, 632, 74 P. 162 (construed and applied); 2 C. A. 312, 314, 84 P. 356 (applied with subd. 2, § 3311 — breach of contract to purchase orange crop). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. 1641 §§3354-3356 CIVIL CODE. [Div.IV,Pt.I. §3354. VALUE, HOW ESTIMATED IN FAVOR OF BUYEE. In estimating damages, except as provided by sec- tions thirty-three hundred and fifty-five and three hun- dred and fifty-six, the value of the property, to a buyer or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equiva- lent 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 dili- gence, for him to make such a purchase. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 9 pars, annotation. 67 C. 477, 479, 8 P. 17 (construed and applied with other sec- tions); 91 C. 555, 559, 27 P. 927, 928, 1091 (construed and ap- plied); 144 F. 886, 895 (applied with other sections — contract to furnish tin cans). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. As to measure of damages for delay in delivery, see 78 A. S. 360-366. §3355. PEOPERTY OF PECULIAE VALUE. Where cer- tain property has a peculiar value to a person recovering dam- ages for deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a wilful wrong-doer. History: Enacted March 21, 1872. § 3356. VALUE OF THIKG IN ACTION. For the purpose of estimating damages, the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner. History: Enacted March 21, 1872; amended April 30, 1874, Code Amdts. 1873-4, p. 266. 1642 Tit.II,ch.II,art.IV.] LIMITATION OF. §§ 3357-3359 See Kerr's Cyc. C. C. for 5 pars, annotation. As to many miscellaneous matters as to damages generally, see note § 32S1, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. §3357. DAMAGES ALLOWED O THIS .CHAPTER, EX- CLUSIVE OF OTHERS. The damages prescribed by this chapter are exclusive of exemplary damages and interest, except where those are expressly mentioned. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 106 C. 441, 447, 39 P. 853 (construed and applied with other sections). As to many miscellaneovis matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. § 3358. LIMITATION OF DAMAGES. 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 exem- plary damages and penal damages, and in section thirty-three hundred and nineteen, thirty-three hundred and thirty-nine, and thirty-three hundred and forty. History: Enacted March 21, 1872. 90 C. 515, 520, 27 P. 373, 374 (referred to). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. § 3359. DAMAGES TO BE REASONABLE. Damages must, in all cases, be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered. History: Enacted March 21, 1872. 1643 § 3360 CIVIL CODE. [Div.IV,Pt.I. As to liquidated damages and penalty, and distinction between, see Kerr's Cyc. C. C. §§ 1670, 1671 and notes. As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. §3360. NOMINAL DAMAGES. When a breach of duty has caused uo appreciable detriment to the party affected, he may yet recover nominal damages. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 19 pars, annotation. 123 C. 428, 431, 56 P. 103 (applied) ; 139 C. 514, 520, 73 P. 418 (con- strvied and applied). As to many miscellaneous matters as to damages generally, see note § 3281, ante. As to many miscellaneous matters as to the measure of dam- ages, see note § 3300, ante. 1644 Tit.III,ch.I.] SPECIFIC RELIEF. §3366 TITLE III. SPECIFIC AND PREVENTIVE RELIEF. Chapter I. General Principles, §§3366-3369. II. Specific Relief, §§3375-3415. III. Preventive Relief, §§ 3420-3423. CHAPTER I. GENERAL PRINCIPLES. § 3366. Specific relief, etc., when allowed. § 3367. Specific relief, how given. § 3368. Preventive relief, how given. § 3369. Not to enforce penalty, etc. §3366. SPECIFIC RELIEF, ETC., WHEN ALLOWED. Specific or preventive relief may be given as provided by the laws of this state. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 421. held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 622, enlarg- ing the scope of the section. See Kerr's Cyc. C. C. for 2 pars, annotation. 71 C. 68, 69, 11 P. 847 (referred to); 110 C. 638, 642, 42 P. 1084 (applied); 117 C. 377, 380 (construed), 381 (construed), 49 P. 353; 139 C. 469, 474, 73 P. 145 (applied). As to cancellation of instruments, see Kerr's Cyc. C. C. §§ 3412 et seq. and notes. As to injunctions, see Kerr's Cyc. C. C. §§ 3420 et soq. and notes. As to possession of personal property, see Kerr's Cyc. C. C. §§ 3379, 3380 and notes. As to possession of real property, see Kerr's Cyc. C. C. § 3375 and note. As to rescission of contracts, see Kerr's Cyc. C. C. §§ 3406 et seq. and notes. As to revision of contracts, see Kerr's Cyc. C. C. §§ 3399 et seq. and notes. As to specific performance of obligations, see Kerr's Cyc. C. C. §§ 3384 et seq. and notes. 1645 §§ 3367-3369 CIVIL CODE. [Div.IV,Pt.I. §3367. SPECIFIC RELIEF, HOW GIVEJf. Specific relief is given: 1. By taking possession of a thing, and delivering 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, oth- erwise than by an award of damages. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 142 C. 43, 46, 75 P. 567 (applied). As to classification of the instances in which specific relief is given, see Kerr's Cyc. C. C. § 3375 and note. § 3368. PREVENTIVE RELIEF, HOW GIVEX. Preventive relief is given by prohibiting a party from doing that which ought not to be done. History: Enacted March 21, 1872. As to certiorari, see Kerr's Pocket C. C. P. § 1072. As to contempt, see Kerr's Cyc. C. C. P. §§ 1209-1222 and notes. As to injunction, see Kerr's Cyc. C. C. P. §§ 525-533 and notes. As to preventive relief, generally, see Kerr's Cyc. C. C. §§ 3420 et seq. and notes. As to prohibition, see Kerr's Cyc. C. C. P. §§ 1102-1105 and notes. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 336, note. §3369. NOT TO ENFORCE PENALTY, ETC. Neither specific nor preventive relief can be granted to enforce a penal law, except in a case of nuisance, nor to enforce a pen- alty or forfeiture in any case. History: Enacted March 21, 1872. 138 C. 664, 665, 72 P. 144 (applied — agreement to give certain piece of property, instead of money, for failure to perform con- tract). 1646 Tit.III.ch.II.art.L] POSSESSION OR TITLE. § 3375 CHAPTER II. 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, §§ 3399-3402. V. Rescission of Contracts, §§ 3406-3408. VI. Cancelation of Instruments, §§ 3412-3415. ARTICLE I. POSSESSION QF REAL PROPERTY. § 3375. Judgment for possession or title. § 3375. JUDGMENT FOK POSSESSION OR TITLE. A per- son entitled to specific real property, by reason either of a perfected title, or of a claim to title which ought to be per- fected, may recover the same in the manner prescribed by the code of civil procedure, either by a judgment for its pos- session, 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 47 pars, annotation. As to action concerning real estate, see Kerr's Cyc. C. C. P. §§ 738 et seq. and notes. As to specific enforcement of contract to convey realty, see Kerr's Cyc. C. C. §§ 3384 et seq. and notes. As to writ of restitution, see Kerr's Cyc. C. C. P. § 957 and note. 1647 §§ 3379, 3380 CIVIL CODE. [Div.IV.Pt.I. ARTICLE II. POSSESSION OF PERSONAL PROPERTY. § 3379. Judgment for delivery. § 3380. When holder may be compelled to deliver. §3379. JTDGMEKT FOR DELIVERY. A person entitled to the immediate possession of specific personal property may recover the same in the manner provided by the code of civil procedure. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 16 pars, annotation. As to breach of agreement to transfer personalty; compensa- tion in damages, see Kerr's Cyc. C. C. § 3387 and note. As to claim and delivery, see Kerr's Cyc. C. C. P. §§ 509 et seq. and notes. §3380. WHEX HOLDER MAY BE COMPELLED TO DE- LIVER. 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. HLstory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 266. As to breach of agreement to transfer personalty, and rem- edies to enforce performance, see Kerr's Cyc. C. C. § 3387 and note. For Commissioners' comment on this section, see Kerr's Cyc. C. C. § 3380, note. 1648 Tit.III,ch.II,art.III.] PERFORMANCE. § 3384 ARTICLE III. SPECIFIC PERFORMANCE OF OBLIGATIONS. § 3384. In wliat 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 perform- ance. § 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. IN WHAT C.VSES COMPELLED. Except as other- wise provided in this article, the specific performance of an obligation may be compelled. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 266. See Kerr's Cyc. C. C. for 102 pars, annotation. 110 C. 638, 641 (construod), 642 (construed), 42 P. 1084; 123 C. 1, 6, 69 A. S. 17, 55 P. 713, 43 L. 199 (applied with other sections); 135 C. 256, 260, 67 P. 276 (applied). SPECIFIC l»KRKOUM.\NCK. As to cancellation nf iii-strumonts, see Kerr's Cyo. C. C. §§ 3412 et seq. and notes. As to conditions precedent to a necessity of tender, see 1 L. 554; 21 L. 126. As to contracts in general; nature of; manner of creation; interpretation; validity, extinction, etc., see Kerr's Cyc. C. C. §§ 1549-1701 and notes. As to discretion in granting; remedy at law, see 8 L. 625; 12 L. 239. As to doubtful title in, of contracts to convey land, effect on, see 3 L. 739. 1649 § 3384 CIVIL CODE. [Div.IV.Pt.I. As to interpretation of contracts, see Kerr's Cyc. C. C. §§ 1635- 1661 and notes. As to laches as a bar to suits for, see 54 A. D. 130. As to part performance, what acts amount to and what do not, see 53 A. D. 539. As to proceedings to compel, of contract of intestates by their executors and administrators, see Kerr's Cyc. C. C. P. §§ 1597 et seq. and notes. As to refusal of, because of the inability of the court to enforce its decree, see 68 A. S. 753. As to rescission of contracts, see Kerr's Cyc. C. C. §§ 3406 et seq. and notes. As to revision of contracts, see Kerr's Cyc. C. C. §§ 3399 et seq. and notes. As to, of revised contract, see Kerr's Cyc. C. C. § 3402 and note. As to, of contract between husband and wife to compromise pending or contemplated divorce suit, see 60 L. 406, 412. As to, of contract for corporate stock, see 12 L. 776; 50 L. 501. As to, of contract in relation to land in another state, see 1 L. 79. As to, of contract to prevent revocation of license, see 49 L. 497. As to, of contracts, see 23 A. D. 423. As to, of covenants restricting the use of land, see 21 A. S. 484. As to, of gift of or verbal contract for lands; part perform- ance, see 5 L. 323. As to, of option contracts, see 21 L. 127. As to, of oral voluntary agreements, see 11 L. 116. As to, of parol trust, see 2 L. 662. As to, where wife refuses to join in conveyance in pursuance of husband's agreement, see 89 A. D. 576. As to statute of frauds, what contracts are void thereunder and what enforceable thereunder, see Kerr's Cyc. C. C. § 1624 and note. Certainty and definiteness of contract necessary. — See 1 L. 381; 26 A. D. 661. Conditions precedent to; necessity of tender. — See 1 L. 554. Consideration, inadequacy of as ground for refusing. — See 15 A. D. 299. Damages in lieu of. — See 20 L. 752. Discretion as to granting, remedy at law.- — See 3 A. C. 1032; 9 A. C. 595; 10 A. C. 164; 8 L. 625; 12 L. 239. Doubtful title, in case of. — See 3 L. 739. Effect of denial of the contract. — See 4. L. N. S. 410. Effect of incapacity to perform.^ — See 12 L. 240. Equitable enforcement for limited time to prevent public 1650 Tit.III,ch.II,art.III.] PERFORMANCE. § 3384 inconvenience, of contract which is against public policy. — See 1 L. N. S. 1032. For performance of continuous acts. — See 3 L. N. S. 828. Forfeiture clause in contract; time, when of essence. — See 12 L. 239. Fraudulent expression of opinion as a defense.- — See 35 L. 433. Ground of relief — As to, generally, see 10 A. C. 931. Same — Inadequacj^ of damage recoverable as warrant, of partly performed oral contract. — See 1 A. C. 999. Inability of defendant to — Effect of upon chancery jurisdic- tion. — See 16 L. 614-616. Same — Where wife refuses to unite in conveyance. — See 24 L. 763-766. Inadequacy of consideration — As ground for denying. — See 12 A. C. 122. Same — Effect of on action for. — See 1 4 L. N. S. 317. Injunction in aid of performance. — See 5 A. C. 265. Judicial discretion, as to, rule of. — See 3 A. C. 1032; 9 A. C. 595; 10 A. C. 164; 8 L. 625; 12 L. 239. Jurisdiction of equity to decree, of contract affecting real estate in another country. — See 69 L. 681. Laches as a bar to suits for. — See 54 A. D. 132. I>iquidated damages, effect of provision in contract for sale of land.— See 2 L. N. S. 210. Mandatory injunction to compel a contract for services. — See 20 L. 167. Mistake, effect of on action for.— See 15 L. N. S. 81. Mutuality of contract or obligation necessary. — See 7 A. C. 492; 6 L. N. S. 391. 397. Same — Remedy, necessity of, and what is. — Sec 27 A. S. 173; 5 W. & P. 4565. Same— Right. — See 1 L. 554; 12 L. 244. Of agreement — To reconvey property fraudulently conveyed. — See 3 A. C. 942. Same — To submit to arbitration. — See 15 L. 142. Of antenuptial contracts — As to, generally, see 9 A. C. 595. Same — Right of party to marriage, of antenuptial contract by third person. — See 9 A. C. 603. Of contract — As to, generally, see 23 A. D. 423. Same — As to disposition of property at death. — Sec 8 L. X. S. 1130; 9 L. N. S. 157; 12 L. N. S. 218; 15 L. N. S. 466. Same — Between husband and wife to compromise divorce suit. — See 60 L. 412. Same — For municipal water supply. — See 61 L. 91. Same — For personal services. — See 6 L. 653. Same — For sale of corporate stock. — See 50 L. 501-512. Same — In relation to personal property. — See 5 A. C. 265, 269; 10 A. C. 931, 934. 1651 § 3384 CIVIL CODE. [Div.IV.Pt.I. Same — In relation to real property, certainty required. — See 2 A. C./286. Same— Saine — Contract to sale by one having part interest in premises.^See 10 A. C. 560, 562. Same — Same — -Decree providing for mortgage to secure de- ferred payments. — See 9 A. C. 1058. Same — Same — Evidence on. — See 2 A. C. 286; 9 A. C. 770. Same — Same — Land sold to third party.- — See 6 A. C. 189. Sam'e- — Same — Necessity of tender of purchase price. — See 4 A. C. 849, 852. Same — Same — Provisions in contract for liquidated damages, effect of. — See 8 A. C. 357. Same — Same — Title to be conveyed. — See 8 A. C. 357. Same — Same- — -Where contract price to be affixed by appraisers. —See 8 A. C. 660, 664. Same — Of guaranty.- — See 3 A. C. 773. Same — Of services. — See 6 L. N. S. 1115-1144. Same — Signed by beneflciarj^ but not by holder of legal title. — See 2 L. N. S. 884. Same- — To construct, erect, or repair.— See 9 A. C. 159, 160; 10 A. C. 227, 230. Same- — To convey homestead. — See 8 A. C. 357. Same — To establish or maintain railway station. — See 16 L. N. S. 307. Same — To give security. — See 5 L. N. S. 585-597. Same — To provide for party to marriage — As to, generally, see 12 L. N. S. 232. Same — Same — Part performance. — See 7 L. N. S. 734. Of covenants restricting the use of land. — See 21 A. S. 484. Of gift.— See 5 L. 323. Of options.— See 1 A. S. 986, 990; 118 A. S. 592; 21 L. 127; 6 L. N. S. 403. Of parol trust. — See 2 L. 662. Of voluntary agreement. — See 11 L. 116. Part performance — Taking possession as a sufficient.- — See 8 L. N. S. 870. Same — What acts amount to and what do not. — See 53 A. D. 589; 6 W. & P. 5182. Penalty will not prevent. — See 1 L. 192. Refusal of because of the inability of the court to enforce its decree. — See 68 A. S. 749. Relief, generally, see 50 L. 512. To prevent revocation of license.— See 49 L. 507. Uncertainty as to time as affecting right to. — See 2 L. N. S. 221. Verbal contract in relation to land — As to validity of, gen- erally, see 5 L. 323. Same — For exchange of lands. — See 5 L. 245. 1652 Tit.III,ch.II,art.III.] remedy mutual. §§3385,3386 Same — On part performance. — See 5 L. 325. Same — Sufficiency of payment alone. — See 5 L. 236. Same — Taking possession as an act of performance under — As to, generally, see 5 L. 326. Same — Same — And making improvements. — See 5 L. 327. Same — Theory of ground for relief. — See 5 L. 324. Same — Where fully performed by one party. — See .5 L. 324. When purchaser at judicial sale compelled to complete pur- chase. — See 21 L. 45. Where wife refuses to join in conveyance in pursuit of hus- band's agreement. — See 89 A. D. 576. With abatement of price when. — See 10 L. N. S. 117-125. §3385. REMEDY MITUAL (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 267. 110 C. 638. 642, 42 P. 1084 (referred to). As to many miscellaneous matters as to specific performance, see note § 3384, ante. § 3386. NO REMEDY UNLESS MUXrAL. Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is com- pellable specifically to perform, everything to which the former is entitled under the same obligation, either com- pletely or nearly so, together with full compensation for any want of entire performance. Hicttory: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 23 pars, annotation. 91 C. 87, 90, 27 P. 515 (construed); 110 C. 63S. 642, 42 P. 10S4 (construed); 142 C. 342. 346, 75 P. 896 (applied); 144 C. .'.2S. 533. 78 P. 25. 27 (applied): 147 C. 299, 303. 81 P. 958 (construed with §3306); 153 C. 106, 112, 94 P. 623 (applied — contract to build and operate railroad — test of mutuality of remedy, how applied); 4 C. A. 361. 368, 88 P. 287 (when failure to perform obligation Is insufficient, in equity, to constitute defense to action for breach of contract). As to many miscellaneous matters as to specific performance, see note § 3384, ante. As to mutuality, contract necessary for spociflc pt-rformance, see 7 A. D. 492. As to mutuality of right in specific performance, see 1 L. 554; 12 L. 244. 1653 §§ 3387-3389 CIVIL CODE. [Div.IV.Pt.I. As to necessity of mutuality of remedy, and what is, for specific performance, see 27 A. S. 173. As to what parties cannot have specific performance, see Kerr's Cyc. C. C. § 3392 and note. §3387. DISTINCTION BETWEEN EEAL AND PERSON- AL PROPEETY. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 123 C. 1, 6 (applied with other sections), 9 (construed), 11 (construed), 69 A. S. 17, 55 P. 713, 43 L. 199; 135 C. 256, 261 (con- strued), 262 (applied), 67 P. 276; 52 P. 729, 730 (construed). As to many miscellaneous matters as to specific performance, see note § 3384, ante. Distinctions between kinds of redress. — See Kerr's Cyc. C. C. § 3386 and note 3. § 3388. CONTRACT SIGNED BY ONE PARTY ONLY, MAY BE ENFORCED BY OTHER. A party who has signed a written contract 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 enforcing specific performance. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 4 pars, annotation. 146 C. 286, 288, 79 P. 970, 971 (applied). As to many miscellaneous matters as to specific performance, see note § 3384, ante. §3389. LIQUIDATION OF DAMAGES NOT A BAR TO SPECIFIC PERFORMANCE. A contract otherwise proper to be specifically enforced, may be thus enforced, though a penalty is imposed, or the damages are liquidated for its breach, and the party in default is willing to pay the same. History: Enacted March 21, 1872. 1654 Tit.III,ch.II,art.Tn.] ENFORCEMENT. § 3390 See Kerr's Cyc. C. C. for 3 pars, annotation. l'^3 C 1 6 (applied witli other sections), 9 (construed), 11 (construed), 69 A. S. 17, 55 P. 713, 43 L. 199; 135 C. 256. 261, 67 P. 276 (construed); 52 P. 729, 730 (construed). As to many miscellaneous matters as to specific performance, see note § 3384, ante. § 3390. WHAT CAKNOT BE SPECIFICALLY ENFORCED. The following obligations cannot be specifically enforced: 1. An obligation to render personal service; 2. An obligation to employ another in personal service; 3. An agreement to submit a controversy to arbitration; 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. History: Enacted March 21, 1S72. See Kerr's Cyc. C. C. for 44 pars, annotation. 88 C 245 249, 22 A. S. 301, 26 P. 99 (referred to); 119 C. 35, 38 50 P. 1063, 51 P. 536 (applied); 121 C. 396, 398, 66 A. S. 35. 53' P. 926 (applied); 122 C. 341, 348, 68 A. S. 35, 55 P. 3 (referred to)- 130 C. 526, 529 (applied), 530 (referred to), 62 P. 927; 136 C. 605, 611, 69 P. 432 (applied); 140 C. 495, 497, 74 P. 40 (applied); 148 c' 610, 615, 618, 84 P. 166 (.allegations of complaint sufficient to warrant specific performance of contract to sell lieu land selected for surrendered forest land); 1 C. A. 259, 265, 81 P. 1120 (equity will not compel performance by one party where there is no certainty that other party even Intends to carry out promises made by him). As to certainty and definiteness of contract as affecting specific performance thereof, see 1 L. 381. As to certainty in contract requisite for specific performance, see 26 A. D. 661. As to effect of inability to perform upon jurisdiction of chan- cery, see 16 Li. 614. As to many miscellaneous matters as to specific performance, see note § 3384, ante. As to specific performance of contract for conveyance where wife refuses to unite in the conveyance, see 24 L. 763. As to specific performance of contract for personal service, see 6 L. 653. 1655 § 3391 CIVIL, CODE. [Div.IV.Pt.I. §3391. WHAT PARTIES CANNOT BE COMPELLED TO PERFORM. Specific performance cannot be enforced against a party to a contract in any of the following cases: 1. If he has not received an adequate consideration for the contract; 2. If it is not, as to him, just and reasonable; 3. If his assent was obtained by the misrepresentation, 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 compensation 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 33 pars, annotation. 74 C. 557, 563, 5 A. S. 470, 16 P. 386, 389 (construed); 77 C. 114, 115, 116 (construed), 19 P. 190; 123 C. 447, 451, 56 P. 58 (construed); 124 C. 492, 494, 57 P. 386 (applied); 128 C. 120, 128, 60 P. 689 (applied); 129 C. 283, 287, 61 P. 907, 50 L. 548 (applied); 134 C. 170, 171, 66 P. 231 (referred to); 135 C. 256, 261, 263 (referred to), 67 P. 276; 142 C. 462, 467, 76 P. 62 (re- ferred to); 144 C. 528, 535, 78 P. 25 (applied); 148 C. 374, 377, 83 P. 148 (cited — sufficiency of complaint for specific perform- ance); 149 C. 613, 614, 87 P. 193 (cited — vendor's complaint for specific performance of executory agreement for sale of land) ; 151 C. 220, 226, 90 P. 536 (cited — specific performance of con- tract to convey land should be refused when); 6 C. A. 152, 156, 91 P. 667 (cited — what is necessary to enforcement of contracts to convey during lifetime of parties). As to fraudulent expression of opinion as a defense to specific performance, see 35 L. 417, 433. As to inadequacy of consideration as a ground for refusing specific performance, see 15 A. D. 299. As to many miscellaneous matters as to specific performance, see note § 3384, ante. Mutuality resulting from executed consideration. — See Kerr's Cyc. C. C. § 3386 and note. 1656 Tit.III.ch.II.art.III.] performance. §§ 3392-3395 § 3392. WHAT PARTIES CANXOT HAVE SPECIFIC PER- FORMAXCE I\ THEIR FAVOR, Specific performance can- not be enforced 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, except where his failure to perform is only partial, and either entirely immaterial, or capable of being fully compensated, in which case specific performance may be compelled, upon full compensation be- ing made for the default. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 36 pars, annotation. 4 C. A. 361, 368, 88 P. 287 (when failure to perform obligation is insufficient, in equity, to constitute defense to action for breach of contract). As to many miscellaneous matters as to specific performance, see note § 3384, ante. As to no remedy unless mutual, see Kerr's Cyc. C. C. § 3386 and note. §3393. SPECIFIC PERFORMANCE >0T REQl'IRED ^\nl:y oppressive (repealed). History: Enacted March 21, 1872; repealed Mnnii r!f». is;74. Code Amdts. 1873-4, p. 267. §3394. AGREEMENT TO SELL PROPERTY RV ONE WHO HAS NO TITLE. An agreement for the sale of prop- erty cannot be sppcifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to specific performance, see note § 3384. ante. §339.-.. RELIEF AGAINST PARTIES (LAIMI.X^ I VDER PERSON BOUND TO PERFORM. Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like manner en- forced against any other person claiming under him by a title created subsequently to the obligation, except a pur- 1657 § 3399 CIVIL CODE. [Div.IV.Pt.I. chaser or encumbrancer in good faith and for value, and except, also, that anj- such person may exonerate himself by conveying all his estate to the person entitled to enforce the obligation. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 122 C. 659, 664, 55 P. 587 (applied); 136 C. 138, 143, 89 A. S. 120, 68 P. 587 (construed). As to many miscellaneous matters as to specific performance, see note § 3384, ante. 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 CONTEACT MAY BE REVISED. When, through fraud or a mutual mistake of the parties, or a mis- take of one party, which the other at the time knew or sus- pected, a written contract does not truly express the inten- tion of the parties, it may be revised on the application 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 81 pars, annotation. 65 C. 280, 281, 3 P. 881, 882 (construed and applied); 68 C. 611, 615, 616, 10 P. 179, 181, 182 (construed and applied); 83 C. 155, 158, 23 P. 294, 295 (construed and applied); 85 C. 488, 502, 24 P. 930, 933 (construed and applied); 86 C. 335, 340, 24 P. 993 (construed and applied); 88 C. 207, 209, 212, 213, 26 P. 85, 86, 87 (construed and applied); 31 P. 367, 369 (cited); 112 C. 345, 352, 53 A. S. 216, 44 P. 670 (construed and applied); 120 C. 67, 69, 52 P. 119 (construed and applied); 123 C. 324, 330, 55 P. 1057 (construed and applied); 132 C. 582, 584, 64 P. 1097, 1098 (construed and applied with other sections); 137 C. 71, 75, 69 P. 844 (construed and applied with other sections); 137 C. 89,, 1658 Tit.III,ch.II,art.IV.] PRINCIPLES. §§ 3400-3402 93, 68 P. 850 (construed and applied); 137 C. 456, 458, 70 P. 294 (construed and applied): 138 C. 112. 115, 70 P. 1005 (con- strued and applied); 144 C. 450, 454, 77 P. 1032 (construed); 150 C. 21, 26, 27, 87 P. 1029 (relief is not to be refused because party asking it might have discovered mistake before signing); 2 C. A. 433, 435, 84 P. 53 (action to enforce contract, and to enforce it as reformed, lies when). As to equitable jurisdiction and relief in case of mistake, see note 6 Paige Ch. (N. T.) 347, 3 L. ed. 1015. As to reformation by suit in equity, see 65 A. S. 481. As to reformation of instruments affecting homesteads, see 77 A. S. 804. As to reformation of instruments and cause and proceedings relating to, see 65 A. S. 481. As to reformation of instrument on ground of mistake, see 30 A. S. 621. As to when relief will l)e granted and instrument reformed, see 3 L. 189; 5 L. 156. §3400. PRESUMPTION AS TO I>TE\T OF PARTIES. For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 132 C. 582, 584, 64 P. 1097 (construed and applied with other sections of code); 2 C. A. 433, 435, 84 P. 53 (action to enforce contract, and to enforce as reformed, lies when). §.S401. PRINCIPLES OF REVISION. In revising a writ- ten instrument, the court may inquire what the instrument was intended 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 85 C. 488, 501, 24 P. 930, 933 (construed and applied); 132 C. 582, 584, 64 P. 1097, 1098 (construed and applied with other sections); 2 C. A. 433, 435, 84 P. 53 (action to enforce contract, and to enforce it as reformed, lies when). §3402. ENFORCEMENT OF REVISED CONTRACT. A contract may be first revised and then specifically enforced. 1659 § 3406 CIVIL CODE. [Div.IV.Pt.I. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 422, held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 6 pars, annotation. 132 C. 582, 584, 64 P. 1097, 1098 (construed and applied with other sections); 137 C. 71, 75, 69 P. 844 (construed and applied with other sections and with §1856 C. C. P.); 137 C. 456, 458, 70 P.- 294 (construed and applied); 149 C. 122, 126, 84 P. 835 (contract, in same action, may be first revised, and then specific- ally enforced); 150 C. 21, 26, 87 P. 1029 (cited — execution of deed without reading- it); 2 C. A. 433, 435, 84 P. 53 (action to enforce contract, and to enforce it as reformed, lies when). 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. WHEN RESCISSIOJf MAY BE ADJUDGED. 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 sixteen hundred and eighty-nine; 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 permit- ting it to stand. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 6, 1901, Stats, and Amdts. 1900-1, p. 422. held unconstitutional, see history, § 4 ante. See Kerr's Cyc. C. C. for 140 pars, annotation. 86 C. 248, 251, 21 A. S. 33, 24 P. 1018 (construed); 98 C. 490, 499, 502, 33 P. 550, 553 (construed with other sections); 120 C. 502, 511, 47 P. 369, 52 P. 797 (construed with other sections); 133 C. 441, 443, 65 P. 894 (construed and applied with other sections); 138 C. 668, 672, 72 P. 149 (construed and applied with §1689, subd. 2); 141 C. 56, 63, 74 P. 433 (construed and applied with other sections); 147 C. 739, 743, 82 P. 436 (contract obtained by fraudulent promise may be rescinded); 148 C. 539, 547, 83 P. 1660 Tit.III,ch.II,art.V.] RESCISSION. § 3407 1000 (rules of equity not applicable when); 149 C. 667, 676, 87 P. 276 (ground for rescission must be alleged and relief sought); 1 C. A. 690, 694, 82 P. 1052 (basis of action to rescind). As to effect of rescission, see 15 A. D. 572-575. As to fraud in contracts, see Kerr's Cyc. C. C. §§ 1572-1574 and notes. As to how and within what time right of rescission must be exercised, see 74 A. D. 657. As to misrepresentation, see Kerr's Cyc. C. C. § 1568 and note. As to mistake, see Kerr's Cyc. C. C. §§ 1576-1579 and notes. As to placing of parties In statu quo, see Kerr's Cyc. C. C. § 3407 and note. As to relief from fraud or mistake in instrument, see 4 L. 483; 5 L. 152; 6 L. 835; 11 L. 857; 12 L. 273. As to rescinding in equity where there is no actual fraud, accident, or mistake, see 15 A. D. 572, 4 L. 483; 5 L. 152; 6 L. 835; 11 L. 857; 12 L. 273. As to rescission of contract for gross ignorance or mistake respecting value of property, see 54 A. R. 614. As to rescission of contract, when, how, and by whom may be made, see 50 A. D. 672. As to rescission of contracts for gross inadequacj- of con- sideration, see 15 A. D. 572-575. As to rescission of contracts in equity where tlicre is no actual fraud, accident, or mistake, see 15 A. D. 572-575. As to rescission of contracts made with heirs, reversioners, and expectants in the lifetime of the ancestor, see 15 A. D. 572-575. As to rescission of sale for fraud in purchase on credit, see 18 A. S. 362. As to rescission when advantage has been taken of the situa- tion or condition of one of the parties, see 15 A. D. 572-575. As to right and conditions of rescission, see 1 L. 826; 6 L. 503; 9 L. 607. As to right to rescind contract without liability for non- performance, see note 30 L. 33-73. As to right to rescind or abandon contract because of other party's default, see note 30 L. 33-73. As to setting aside written instrument for fraud and fraud- ulent representations, see 11 L. 66, 96. As to undue influence in contract, see Kerr's Cyc. C. C. § 1575 and note. As to what will warrant rescission, see 30 L. 33-73. Duress — As to effect of duress upon contracts, see Kerr's Cyc. C. C. § 1569 and note. §3407. llESriSSIO\ FOH MISTAKE. Rescission cannot be adjudged for mere mistake, unless the party against 1661 § 3408 CIVIL CODE. [Div.IV.Pt.I. whom it is adjudged can be restored to substantially the same position as if the contract had not been made. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 27 pars, annotation. 94 C. 56, 58, 28 A. S. 91, 29 P. 329 (construed and applied); 98 C. 490, 4'99, 33 P. 550, 553 (construed and applied with other sec- tions)'";- 109 C. 417, 426, 42 P. 139 (construed and applied with §1691); 114 C. 161, 168, 45 P. 1054, 46 P. 386 (construed); 120 C. 502, 511, 47 P. 369, 52 P. 797 (construed and applied with other sections); 124 C. 264, 268, 56 P. 1042 (referred to with §1691); 146 C. 379, 390, 80 P. 234 (construed with § 3408 — what restora- tion is sufficient in rescission for fraud) ; 148 C. 539, 547, 83 P. 1000 (rules of equity not applicable when); 149 C. 667, 676, 87 P. 276 (ground for rescission inust be alleged and relief sought). § 3408. COURT MAY KEQUIRE PARTY RESCINDING TO DO EQUITY. On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require. Historj-: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 7 pars, annotation. 94 C. 56, 58, 28 A. S. 91, 29 P. 329 (construed); 98 C. 490, 499, 502, 33 P. 550, 553 (construed and applied with other sections); 120 C. 502, 511, 47 P. 369, 52 P. 797 (construed and applied with other sections); 123 C. 377, 378, 55 P. 1007 (referred to); 146 C. 379, 390, 80 P. 234 (construed with § 3407— what restoration is sufficient in rescission for fraud); 147 C. 739, 744, 82 P. 436 (rescission on ground of fraud — restoration not necessary when); 148 C. 539, 547, 83 P. 1000 (rules of equity not applicable when); 152 C. 383, 394, 92 P. 1011 (if offer of rescission has been made and refused, and party is compelled to sue for rescission, principles of equity apply); 1 C. A. 690, 694, 82 P. 1052 (basis of action to rescind). 1662 Tit.III,ch.II,art.VI.] CANCELLATION. §§3412,3413 ARTICLE VI. CANCELATION OF INSTRUMENTS. § 3412. When cancelation may be ordered. §3413. Instrument obviously void. § 3414. Cancelation in part. § 3415. Reissuance, etc., of lost private documents or instru- ments. S3412. WHEN CAIV( ELATION MAY BE ORDERED. 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 canceled. History: Enacted March 21, 1872; amended by Code Com- mission, Act Marcli 6, 1901, Stats, and Amdts. 1900-1, p. 422, held unconstitutional, see liistory, § 4 ante. See Kerr's Cyc. C. C. for 13 pars, annotation. 59 C. 194, 197 (construed and applied): 79 C. 443. 445, 21 P. 946. 947 (construed and applied); 83 C. 234, 238, 23 P. 298 (con- strued and applied); 102 C. 627, 631, 36 P. 1011 (construed and applied); 126 C. 471, 474, 77 A. S. 195. 58 P. 910 (referred to); 132 C. 691. 697. 64 P. 1091. 1092 (construed and applied); 6 C. A. ?,r,, 43. 91 P. 409 (action under § 738 C. C. P. could accomplish nothing more nor less than action under § 3412 C. C); 36 F. 33", 352 (cited). §3413. INSTIUMKNT (HJVIOrSLY VOID. An instrument, the invalidity of which is apparent upon its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of caus- ing injury, within thf pi-ovisious of the last section. TIlMtory: F^nacti-d March 21. 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 55 C. 564, 566 (meaning of "instrument" — it does not embrace what); 79 C. 443, 445. 21 1'. 9ir.. lUT ( const ni.'SOLYENCY, ^VHAT. A debtor is insolvent, within the meaning of this title, when he is unable to pay his debts from his own means, as they become due. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 74 C. 540, 543, 16 P. 317, 318 (referred to); 78 C. 573, 576. 21 P. 305, 306 (referred to); 84 C. 41, 48, 23 P. 1088, 1090 (referred to); 98 C. 409, 411, 33 P. 325, 326 (referred to); 117 C. 140, 155, 48 P. 1025 (referred to); 139 C. 362, 367, 73 P. 182 (referred to). §3451. CERTAIN TKAXSFERS NOT AFFECTED. The provisions of this title do not prevent a person residing in another state or country 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 do the provisions of this title affect 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 creditor, or creditors, or to some other person or persons in trust for such particular creditor or creditors for the purpose of paying or securing the whole or part of a debt owing to such creditor or creditors, whether in his or their own right or otherwise. HiHtory: Enacted March 21, 1872; amended March S. 188J. Stats, and Amdts. 1889, p. 82; amended by Code Commission. Act March 16. 1901, Stats, and Amdts. 1900-1, p. 422. held uncon- stitutional, see history, § 4 ante, amendment re-enacted March 21, 1905, Stats, and Amdts. 1905. p. 622. 1689 §§3452,3453 CIVIL CODE. [Div.IV,Pt.II. See Kerr's Cyc. C. C. for 6 pars, annotation. 83 C. 303, 309, 23 P. 350, 352; 98 C. 409, 411, 33 P. 325, 326 (re- ferred to); 126 C. 43, 50, 77 A. S. 141, 58 P. 320, 46 L. 832 (con- strued); 139 C. 362, 366, 73 P. 182, 183 (referred to); 3 C. A. 294, 298, 85 P. 134 (cited). As to assignment made in another state, effect of on resident attaching creditors, see 78 A. D. 596. As to effect of assignment under foreign bankruptcy laws, see 55 A.^D. 132-140. As to extraterritorial effect of assignment, see 97 A. D. 355, 678, 98 A. D. 594-597. As to foreign bankruptcy, assignment under, effect of, see 7 A. D. 591, 8 A. D. 597; 17 A. D. 769; 20 A. D. 963. As to foreign creditor not permitted to attack assignment, see 55 A. R. 136. As to transfer of property out of state by assignment for benefit of creditors, see 23 L. 33. As to validity of assignment for benefit of creditors in an- other state, see 78 A. D. 594; 97 A. D. 355, 678. §3452. WHAT DEBTS MAT BE SECURED. An assign- ment for the benefit of creditors may provide for any sub- sisting liability of the assignor which he might lawfully pay, whether absolute or contingent. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 6 pars, annotation. 98 C. 409, 411, 33 P. 325, 326 (referred to); 128 C. 103, 107, 60 P. 675; 139 C. 362, 367, 73 P. 182 (referred to); 3 C. A. 358, 363, 85 P. 169 (transfer to ex-director of insolvent corporation not coming within this section). As to preferences among creditors, lawful and unlawful, see 34 A. S. 856, 857, 94 A. S. 230. As to void assignment for prohibited preferences, see 58 A. S. 87, 88. §3453. WHAT PREFERENCES MAT BE GIVEN (re- pealed). Hi.story: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 267. 98 C. 409, 411, 33 P. 325, 326 (referred to); 139 C. 362, 367, 73 P. 182 (referred to); 3 C. A. 294, 298, 85 P. 134 (cited). 1690 Tit III ] VOID ASSIGNMENT. §§ 3454-3457 §3454. PREFERENCE MUST BE ABSOLUTE (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 267. 98 C. 409, 411, 33 P. 325, 326 (referred to); 139 C. 362, 367, 73 P. 182 (referred to). §3455. CERTAIN RIGHTS NOT AFFECTED B¥ PREF- ERENCES IN ASSIGNMENT (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 267. 98 C. 409, 411, 33 P. 325, 326 (referred to); 139 C. 362, 367, 73 P. 182 (referred to). §3456. JOINT AND SEPARATE DEBTS (repealed). History: Enacted March 21, 1872; repealed March 30, 1874, Code Anidts. 1S73-4, p. 267. 98 C. 409, 411, 33 P. 325, 326 (referred to); 139 C. 362, 367, 73 P. 182 (referred to). §3457. ASSIGNMENT, ^VHEN VOID. An assignment for the benefit of creditors 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 compro- mise 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 known 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. 1691 § 3458 CIVIL CODE. [Div.IV.Pt.II. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 267-8. See Kerr's Cyc. C. C. for 18 pars, annotation. 85 C. 134, 135, 24 P. 721, 722 (referred to); 87 C. 453, 456, 457, 25 P. 675, 676 (referred to); 98 C. 409, 411, 33 P. 325, 326 (re- ferred to); 108 C. 81, 85, 87, 41 P. 29 (cited); 113 C. 429, 431, 45 P. 703, 131 C. 625, 627, 63 P. 1008 (referred to); 139 C. 362, 367, 73 P.-lSf (referred to). -As to when an assignment for the benefit of creditors is deemed fraudulent, and effect of the fraud on the assignment, see 58 A. S. 74-101. Assignments exacting releases, validity of, see 16 A. D. 340- 342. Tliat a debtor may prefer creditors, see Kerr's Cyc. C. C. § 3432 and note. Tliat preferential transfers by special partnersliips are void, see Kerr's Cyc. C. C. § 2496 and note. §3458. THE INSTKmiENT OF ASSIGNMEXT. An as- signment for the benefit of creditors must be in writing, sub- scribed by the assignor, or by his agent thereto authorized in writing, and the transfer by the sheriff must also be in writing, subscribed by the sheriff in his official capacity. Both such assignment and such transfer must be acknowl- edged, or proved and certified, in the mode prescribed by the chapter on recording 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. History: Enacted March 21, 1872; amended March 7, 1889, Stats, and Amdts. 1889, p. 82. See Kerr's Cyc. C. C. for 7 pars, annotation. 98 C. 409, 411, 33 P. 325, 326 (referred to as it stood before amendment); 104 C. 395, 399, 38 P. 53 (cited); 139 C. 362, 367, 73 P. 182 (referred to); 144 C. 511, 515, 78 P. 30 (cited). As to constructive notice, see Kerr's Cyc. C. C. §§ 1213 et seq. and notes. As to subsequent purchasers, rights of, etc., see Kerr's Cyc. C. C. § 1170 and note. 1692 Tit.III.] ASSIGNEE'S TITLE. §§ 3459-3461 §3459. COMPLIANCE WITH PROVISIONS OF LAST SECTION NECESSAEY TO VALIDITY OF ASSIGNMENT. Unless the provisions of the last section are complied with, an assignment for the benefit of creditors is void against every creditor of the assignor not assenting thereto. History: Enacted March 21, 1872. See Kerr's Cj'c. C. C. for 4 pars, annotation. 98 C. 409, 411. 33 P. 325, 326 (referred to as it stood before amendment); 139 C. 362, 367, 73 P. 182 (referred to); 144 C. 511, 515, 78 P. 30. As to provisions relating- to recording transfers of real prop- erty, see Kerr's Cyc. C. C. §§ 1213-1217 and notes. As to recording of assignment for benefit of creditors, see 51 A. D. 594. §3460. ASSIGNEE TAKES, SUBJECT TO BIGHTS OF THIED PAETIES. 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. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 17 pars, annotation. 98 C. 409, 411, 33 P. 325, 326 (referred to); 128 C. 103, 106, 60 P. 675 (referred to); 139 C. 362, 367, 73 P. 182 (referred to). As to assignee not a purchaser for value, see 72 A. D. 483. As to assignee's right to sue elsewhere, see 55 A. R. 130, 138- 140. As to attachment of property in hands of assignee for cred- itors, see 26 L. 593. As to preferences between creditors, see Kerr's Cyc. C. C. §§ 3432, 3433, 3451 and notes. As to right of assignee of creditors to compromise claims in general, see 23 L. 578. §3461. INVENTOBY BEQUIBED. Within twenty days after an assignment is made for the benefit of creditors, the assignor must make and file, in the manner prescribed by section thirty-four hundred and sixty-three, a full and true inventory, showing: 1. All the creditors of the assignor; 1693 § 3461 CIVIL CODE. [Div.IV.Pt.II. 2. The place of residence of each creditor, if known 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; 6. All property of the assignor at the date of the assign- ment, which is exempt by law from execution; and, 7. All of the assignor's property at the date of the assign- ment, both real and personal, of every kind, not so exempt, and the encumbrances existing thereon, and all vouchers and securities relating thereto, and the value of such prop- erty according to the best knowledge of the assignor. History; Enacted March 21, 1872. See Kerr's Cyc. C. C. for 10 pars, annotation. 78 C. 263, 267, 20 P. 561 (construed and applied); 80 C. 542, 543, 22 P. 219 (construed and applied with other sections); 82 C. 607, 610, 23 P. 116, 117 (construed and applied); 85 C. 134, 135, 136, 24 P. 722 (construed and applied); 87 C. 453, 460, 25 P. 675, 677 (construed and applied); 31 P. 568, 569 (cited); 98 C. 409, 411, 412, 33 P. 325, 326 (referred to with other sections); 37 P. 224 (referred to); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367, 73 P. 182 (referred to with other sections). As to assignment by partnership, see 10 L. 521. As to creditors availing themselves of assets without prefer- ence, see Kerr's Cyc. C. C. § 3449 and note par. 7. As to perjury for making false oath to inventory of creditors, see Kerr's Cyc. Pen. C. § 123 and note. As to property which passes by deed of assignment, see 2 A. S. 26. As to recitals of assignment, see 13 L. 693. As to reservation of property, invalidating assignment, see 2 A. S. 24. As to reservations rendering assignment void, see 15 A. D. 556; 23 A. D. 71; 26 A. D. 247, 586; 74 A. D. 773. As to surplus after payment of assenting creditors' claims, reservation of, see 58 A. S. 78, 79. As to what property ■ does not pass by assignment, see 3 L. 822. 1694 Tit.III.] INVENTORY, VERIFICATION. § 3462 §3462. VERIFICATION OF IjNYEMORY. 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 knowledge and belief. If the assignor neglects or refuses to make and file such inventory and affidavit 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 thereafter make and file in the office of the county recorder where the assignment is first recorded, a verified inventory of all assets received by them; [Citation by court to apjieur, etc.] 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 supe- rior court of the county [,] or city and county [.] where the assignment 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 assignment, and to have with him all books of account, vouchers, and papers relating to the assigned property; and such court may by its order 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. History: Enactod Marcli 21, 1872; amended March 7. 1SS9. Stats, and Amdts. 1889, p. 82-3. See Kcrr'.s Cyc. C. C. for 3 pnrs. annotation. 80 C. 542, 543, 22 P. 219 (construed and applied witli ntlior sections); 82 C. 607, 610, 23 P. 116, 117 (construed and applied); 87 C. 453, 455, 459, 460, 25 P. 675. 677 (construed and applie.l); 31 P. 568, 569 (cited); 98 C. 409, 411, 33 P. 325. 326 (referred to with other sections); 108 C. 81, 86. 87. 41 P. 29 (applied with other sections); 139 C. 362, 367. 73 P. 182 (referred to with other sections). 1695 §§ 3463, 3464 CIVIL CODE. [Div.IV,Pt.II. As to false inventory, when constitutes perjury, see Kerr's Cyc. C. C. § 3461 and note pars. 6, 7. As to sufficiency of schedule and affidavit, see 3 L. 139; 12 L. 809. § 3468. RECORDING ASSIGNMENT AND FILING INVEN- TORY. An assignment for the benefit of creditors must be recorded, and the inventory required by section thirty-four hundred and sixty-one 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 reside 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 resi- dence 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. History: Enacted March 21, 1872. 80 C. 542, 543, 22 P. 219 (construed and applied with other sections); 87 C. 453, 460, 25 P. 675, 677 (affidavit seems to be essential to validity of assignment); 98 C. 409, 411, 33 P. 325, 326 (referred to with other sections as they stood before amendment); 35 P. 646, 647, reversed on hearing in banc, 104 C. 395, 38 P. 53 (construed and applied); 104 C. 395, 399, 38 P. 53 (construed and applied); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367, 73 P. 182 (referred to with other sections). § 3464. SAME. MORE THAN ONE ASSIGNOR RECORD- ING ASSIGNMENT. If an assignment for the benefit of cred- itors is executed by more than one assignor, it may be re- corded, and a copy of the inventory required by section thirty- four hundred and sixty-one may be filed with the recorder 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. History: Enacted March 21, 1872. 80 C. 542, 543, 22 P. 219 (construed and applied with other sections); 98 C. 409, 411, 412, 33 P. 325 (referred to with other sections); (C. Jan. 26, 1894), 35 P. 646, 647, reversed on hearing in banc, 104 C. 395, 399, 38 P. 53 (construed and applied); 108 C. 1696 Tit.III.] VOID ASSIGNMENT. §§ 3465, 3466 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367, 73 P. 182 (referred to with other sections). As to object of recording and purposes of this and preceding section, see Kerr's Cyc. C. C. § 3458 and note pars. 2, 3. §3465. ASSIGNME^'T, WHEN VOID. An assignment for the benefit of creditors is void against creditors of the as- signor and against purchasers and encumbrancers in good faith[,] and for value[,] unless it is recorded as provided in this title, and unless either the inventory required by sec- tion three thousand four hundred and sixty-one, or the inventory required of the assignee or assignees by section three thousand four hundred and sixty-two[,] is filed in the . manner provided in this title and within the time designated. History: Enacted March 21, 1872; amended February 25, 1878, Code Amdts. 1877-8, p. 90; March 7, 1889, Stats, and Amdts. 1889, p. 83. See Kerr's Cyc. C. C. for 3 pars, annotation. 80 C. 542, 543, 22 P. 219 (construed and applied with other sec- tions) ; 85 C. 134, 135, 24 P. 722 (construed and applied); 87 C. 453, 460, 25 P. 675, 677 (affidavit seems to be essential to validity of assignment); 98 C. 409, 411, 412, 33 P. 325, 326 (referred to as it stood before amendment); (C. Jan. 26, 1894), 35 P. 646. 647. 651. reversed on hearing in banc. 104 C. 395. 38 P. 53 (construed and applied); 108 C. 81. SG. 87. 41 P. 29 (applied with other sections); 139 C. 362. 367, 73 P. 182 (referred to with otlier sec- tions). §3466. ASSI(i>3It\T OK KE.VL PROPERTY. Where an assignment for the benefit of creditors embraces real prop- erty, it is subject to the provisions of article four of the chapter on recording transfers, as well as to those of this title. IliNtory: Enacted Marcli 21, 1S72. See Kerr's Cyc. C. C. for 7 pars, annotation. 80 C. 542, 543, 22 P. 219 (construed and applied with other sec- tions); 98 C. 409. 411, 412. 33 P. 325. 326 (referred to as It stood before amendment): 104 C. 395, 398. 38 P. 53 (construed and ap- plied); 108 C. 81. 86. 87. 41 P. 29 (applied with other sections); 139 C. 362, 367. 73 P. 182 (referred to with other sections). Kerr's C. C— 54 1697 §§3467,3468 CIVIL CODE. [Div.IV,Pt.II. §3467. BOND OF ASSIGNEES. 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 supe- rior 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 approved by such judge and conditioned for the faithful discharge of the trust and the due accounting for all moneys received by the assignee, which bond must be filed in the same office with the inven- tory; and any assignee failing to comply with tlie provisions of tliis section may be removed by the above-named superior court on petition of the assignor or any creditor, and his successor appointed by such court. History: Enacted March 21, 1872; amended February 15, 1883, Stats, and Amdts. 1883, p. 2; March 7, 1889, Stats, and Amdts. 1889, p. 83. See Kerr's Cyc. C. C. for 7 pars, annotation. 80 C. 542, 543, 22 P. 219 (construed and applied with other sections); 31 P. 568, 569 (cited — necessity of bond); 98 C. 409, 410, 411, 414, 33 P. 325, 326, 327 (referred to with other sections); 35 P. 646, 647 (referred to); 104 C. 395, 398, 38 P. 53 (referred to); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367, 73 P. 182 (referred to with other sections). As to bond of assignee in general, see 7 L. 403; 11 L. 852. §.3468. CONDITIONS OF DISPOSAL AND CONVERSION. 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. 1698 Tit.III.] PUBLICATION BY ASSIGNEE. § 3468 [Publication by assignee.] Within ten days after the filing of his bond, the assignee must commence the publication (and such publication shall continue at least once a week for four weeks), in some newspaper published in the county, or city and county, where the inventory is filed, of a notice to creditors of the assignor, stating the fact and date of the assignment, and requiring all persons 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 pub- lication 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 inven- tory has been filed, which affidavit shall be prima facie evi- dence of the facts stated therein. [Dividends.] 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 «iailed as in this section provided), the assignee may, in his discretion, declare and pay dividends to the creditors whose claims have been presented and allowed. No dividend already declared shall be disturbed by reason of claims being subsequently presented and allowed; but the creditor presenting such claims 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 provided, 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 before presented. When a creditor lias a iiiorttiatre or pledse of real or per- sonal property of the debtor, 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 such 1699 § 3469 CIVIL CODE. [Div.IV,Pt.II. security to the sheriff, as provided for by section three thou- sand four hundred and forty-nine of this code, he shall be admitted as a creditor only for the balance of the debt after deducting the value of such mortgage, pledge, or lien, to be ascertained by agreement between him and the assignee, or by a sale thereof, to be made in such 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. [Right of redemptiou.] If the value of the property ex- ceeds 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 receiving such excess; or he may sell the prop- erty, subject to the claim of the creditor thereon; and in either case the assignee and creditor, respectively, shall exe- cute all deeds and writings necessary or proper to consum- mate the transaction. If the property is not sold or leased, and delivered up, the creditor shall not be allowed to prove any part of his debt. History: Enacted March 21, 1872; amended March 7, 1889, Stats, and Amdts. 1889, p. 83; March 26, 1895, Stats, and Amdts. 1895, pp. 84, 85. 80 C. 542, 543, 22 P. 219 (construed and applied with other sections); 98 C. 409, 412, 33 P. 325, 326 (referred to with other sections); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367, 73 P. 182 (referred to with other sections); 144 C. 511, 517, 78 P. 30 (construed and applied with other code sections). §3469. ACCOUNTING OF ASSIGNEE. 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 superior court of the county where the accompanying inventory was filed in the manner pre- scribed by the insolvent laws of this state. History: Enacted March 21, 1872; amended February 15, 1883, Stats, and Amdts. 1883, p. 3. 1700 Tit.IIT.] EXEMPT PROPERTY — PAY. §§ 3470-3472 See Kerr's Cyc. C. C. for 7 pars, annotation. 98 C. 409, 412, 33 P. 325, 326 (referred to with other sections); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367, 73 P. 182 (referred to with other sections). §3470. PROPERTY EXEMPT. Property exempt from execution, and insurance upon the life of the assignor, do not pass to the assignee by a general assignment for the benefit of creditors, unless the instrument specially mentions them, and declares an intention that they should pass therebj'. History: Enacted March 21, 1872. 98 C. 409, 412, 33 P. 325, 326 (referred to with other sections); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367. 73 P. 182 (referred to with other sections): 198 U. S.' 202, 209, 49 L. ed. 1018, 1020 (cited — exemption of life insur- ance policies from execution). As to property exempt from execution, see Kerr's Cyc. C. C. P. § 690 and note. §3471. COMPEXS.VTION. The elected assignee or assign- ees 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 assignees in insolvency, and the assignment cannot grant more. Such assignee or as- signees shall also be entitled to all necessary expenses in the management of their trust. HiNtory: Enacted March 21, 1872; amended March 7, 1889, Stats, and Amdts. 1889, p. 84. . See Kerr's Cyc. C. C. for 2 pars, annotation. 56 C. 628 (construed and applied with §2274); 98 C. 409. 412. 33 P. 325. 326 (referred to witli other sections): 108 C. 81. 86. 87. 41 P. 29 (applied with other sections); 139 C. 362, 367. 73 P. 182 (referred to with other sections). §3472. ASSIGNEES PROTECTED FOI! A( TS D()>E I\ GOOD FAITH. An assignee for the benefit of creditors 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 assign- ment is afterward adjudged void. HUtur}-! Enacted March 21. 1872. 1701 § 3473 CIVIL CODE. [Div.IV,Pt.II. See Kerr's Cyc. C. C. for 2 pars, annotation. 98 C. 409, 412, 33 P. 325, 326 (referred to with other sections); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367, 73 P. 182 (referred to with other sections). As to duty of trustee to render accounts, see Kerr's Cyc. C. C. § 3469 and note. As to obligations of trustees in general, see Kerr's Cyc. C. C. §§ 2258 et seq. and notes. As -to trustees' right to repayment out of trust property of expenses, etc., see Kerr's Cyc. C. C. § 2273 and note. §3473. ASSENT OF CREDITOR NECESSARY TO MODI- FICATION OF ASSIGNMENT. An assignment for the benefit of creditors which has been executed and recorded so as to transfer the property to the sheriff, or a transfer by the sheriff to the elected assignee or assignees which has been executed and recorded, cannot afterwards be modified or can- celed by the parties without the consent of the assignor and of every creditor affected thereby. History: Enacted March 21, 1872; amended March 7, 1889, Stats, and Amdts. 1889, p. 84. See Kerr's Cyc. C. C. for 3 pars, annotation. 78 C. 263, 265, 20 P. 561 (referred to with other sections); 98 C. 409, 411, 412, 33 P. 325, 326 (referred to with other sections); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367, 73 P. 182 (referred to with other sections). As to acceptance of trust by one of two or more assignees being sufficient, see 13 C. 242, 288. 1702 Pt.III,Tit.I.] NUISANCE, GENERALLY. §3479 PART III. NUISANCE. Title I. General Principles, §§ 3479-3484. II. Public Nuisances, §§ 3490-3495. III. Private Nuisances, §§ 3501-3503. TITLE I. GENERAL PRINCIPLES. § 3479. Nuisance, what. § 3480. Public nuisance. § 3481. Private nuisance. § 3482. Wliat is not deemed a nuisance. § 3483. Successive owners. § 3484. Abatement does not preclude action. §3479. NUISAX'E, WHAT. Anything which 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 unlaw- fully obstructs the free i)assaiE:e or use, in the customary manner, of any navitrable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance. HIMory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 268; amended by Code Comml.««9inn, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 420. hold unconstitu- tional, see history, § 4 ante. See Kerr's Cyc. ('. C. for 20 par.s. annotation. 65 C. 447, inr,. 4 V. 426, 432 (applied); 66 C. 13S. 147, l.'.l. .')« A. R. 80, 4 P. 1152 (applied); 66 C. 171. 174 (applied to operation of stationary engine to run cable cars, but erroneously cited as §731), 4 P. 1162. 1164 (same error); 67 C. 543, 546, 8 P. 82 (cited); 76 C. 166, 160. 18 P. 141. 143 (cited): 79 C. 347, 348. 21 P. 763 (construed); 87 C. 91, 93, 25 P. 258 (referred to with Pen. C. §« 370, 372); 111 C. 25. 30. 43 P. 396 (cited); 116 C. 397. 399. 48 1703 § 3479 CIVIL CODE. [Div.IV,Pt.III. P. 374, 39 L. 581 (cited); 126 C. 670, 673, 77 A. S. 217, 59 P. 202 (cited); 131 C. 501, 502, 63 P. 1083 (cited); 136 C. 14, 16, 68 P. 108 (applied); 144 C. 134, 136, 77 P. 823 (cited in opinion of trial court quoted); 150 C. 171, 173, 88 P. 713 (cited); 150 C. 195, 196, 88 P. 899 (applied — obstruction of highway); 1 C. A. 229, 231, 81 P. 1118 (applied — street railway tracks not laid in center of street); 1 C. A. 441, 445, 82 P. 640 (applied — depriving land owner of access to his premises); 2 C. A. 346, 348, 83 P. 1082 (structures on street constitute private as well as public nuisance — rights of abutting owner); 18 F. 753, 770, 776 (cited). NUISANCE. As to definition for purposes of criminal prosecution, see Kerr's Cyc. Pen. C. § 370 and note. As to putting animals, etc., in streets, rivers, etc., see Kerr's Cyc. Pen. C. § 374 and note. Abatement — And injunction. — See 1 A. C. 35; 1 A. C. 345; 2 A. C. 249, 250; 5 A. C. 132, 136; 6 A. C. 146. Same — My destruction, when sustainable. — See 26 A. D. 443; 44 A. R. 111. Same — Of private, when justifiable. — See 43 A. R. 24. Action by other than property owner for damages by. — See 1 A. C. 272. Attractive.— See 3 L. N. S. 149; 19 L. N. S. 1094. Authority of the legislature to declare what are. — See 47 A. S. 544. Barking of dog, as a. — See 10 A. C. 67; 7 L. N. S. 349. Bawdy-house as a — As to, see 1 A. C. 35. Same — Enjoined at suit of private citizen. — See 1 A. C. 38. Bees as a. — See 62 L. 133, 134. Blasting as a. — See 2 A. C. 198, 201. Boundaries — Rights of adjoining owners. — See Kerr's Cyc. C. C. §1 829-834 and notes. Same — Trees near as a.^ — See 21 L. 730. Brick kiln as a. — See 10 A. R. 674-676; 2 L. N. S. 92. Bridge over navigable water as a. — See 2 L. 541. Burning of soft coal as a. — See 12 A. C. 846; 13 L. N. S. 465. Businesses and machinery which may be enjoined as. — See 51 A. R. 467. By use of neighboring property. — See 9 L. 711. Casting water on land. — See 10 L. 254. Church bells as. — See 43 A. R. 522-526. Cognate section — Nuisance defined and actions for. — See Kerr's Cyc. C. C. P. § 731 and note; also ""Definition of," this note. Conducting business so as to create. — See 9 L. 712. Contributory wrong of plaintiff as precluding recovery of damages for. — See 11 A. C. 134. Damages in streams, when constitute. — See 30 A. S. 551. 1704 Tit.L] NUISANCE, GENERALLY. § 3479 Dancing as a. — See 18 L. N. S. 699. Definition of. — See Kerr's Cyc. C. C. § 3479 and note; Kerr's Cyc. C. C. P. §731 and note; 30 A. D. 564; 66 A. D. 790; 67 A. D. 607; 67 A. D. 665; 78 A. D. 687; 5 A. R. 292; 21 A. R. 436; 44 A. R. 205; 49 A. R. 721; 6 A. S. 739; 60 A. S. 848; 91 A. S. 63; 9 L. 711; 38 L. 716; 40 L. 851; 58 L. 266; 34 L. ed. 784; 5 W. & P. 4855. Deposit of debris in stream. — See 30 A. S. 551, 554. Disturbing public church gathering by singing. — See 13 A. S. 896. Driving foul air against neighbor's windows as a. — See 9 L. N. S. 695. Effect of legislative autliority upon liability for private. — See 70 L. 579-597; 1 L. N. S. 49-129. Enjoined at suit of private citizen. — See 1 A. C. 38. Equitable relief against cemetery as a. — See 5 A. C. 136. Fireworks in city streets as a. — See 16 L. 395; 16 L. N. S. 621. Fish — Interference with. — See Kerr's Cyc. C. C. § 3480 and note pars. 13-15. Future damages. — See 36 Alb. L. J. 84, reproduced in part as note 59 A. R. 351, 369. Highways — Obstruction of. — See Kerr's Cyc. C. C. § 3480 and note par. 4; §3493 and note pars. 6-10. Hospital as a. — See 1 A. C. 341; 6 A. C. 817, 823. Houses — Dangerous to lives, health, etc., of neiglibors as nuisances. — See 44 A. R. Ill, 112. Same — Of ill-fame as nuisances. — See 48 A. R. 274-278. In highway or alley. — See 8 L. 830. Injunction to restrain threatened or apprehended. — See 2 A. C. 250; 73 A. D. 113. Joinder of parties plaintiff in suits to abate. — See 71 A. D. 311. Landlord and tenant, respective liabilities of for to eacli other and to third persons. — See 50 A. D. 776. Lateral and subjacent support. — See Kerr's Cyc. C. C. § 832 and note. Liability — For though due to the act or negligence of an In- dependent contractor. — See 76 A. S. 399. Same — Of erector and continuer of. — See 14 A. D. 336. Same — Of municipality for failure to abate. — See 1 A. C. 964. Same — Of owner of vacant property for using It, or per- mitting it to be used, in sucli a way as to collect crowds to the injury of the neighborhood. — See 11 L. N. S. 463. Same — Of property owner for a nuisance wlilch he did not create. — See 86 A. S. 508. Liquor nuisances. — See 14 A. S. 454. Livery-stables, whether and wlien constitute. — See 32 A. R. 141. 1705 § 3479 CIVIL CODE. [Div.IV.Pt.III. Mining operations regarded as nuisances. — See 63 A. D. 98- 100. Mooring logs and rafts as a. — See 3 L. 407. Municipal power over — As to, generally, see 9 L. 714; 39 L. 551; 40 L. 465; 51 L. 657. Same — Affecting highways and waters — As to, generally, see 39 L. 650-681; 40 L. 465. Same — Affecting pubfic morals, decency, peace and good order.-^See 39 L. 520-528; 41 L. 321. Same — Affecting safety, health and personal comfort. — See 38 L. 305-335; 41 L>. 322. Same — Buildings and other structures as. — See 38 L. 161-170. Same — Relating to trade or business. — See 38 L. 641-657. Same — Smoke as a public. — See 18 L. N. S. 156. Same — To define, prevent and abate. — See 36 L. 593-613. Same — Upon public streets and highways, created by street railroads and other electrical companies. — See 39 L. 609-621; 44 L. 565. Municipal corporations — Liability of for maintaining. — See 15 A. S. 845; 30 A. S. 395. Same — Power of to determine what is and to remove. — See 27 A. D. 98; 120 A. S. 372; also "Municipal power over," this note. Same — Right to create. — See 84 A. S. 916. Municipality's power to regulate hitching of horses in streets. —See 11 L. N. S. 1080. Navigable waters, remedies for obstruction of. — See 57 A. S. 693-701. Noise as a — Generally, see 12 L. 53. Same — Arising from lawful business. — See 4 A. C. 378. Same — ^With or without vibration incident to lawful industrial business as a. — See 17 L. N. S. 287. Obstruction — Of highway preventing or interfering with ac- cess to property, right of private individual to abate as a.— See 11 A. C. 287. Same — Of navigable water as a. — See 4 L. 209; 59 L. 90. Same— Of street or highway. — See 38 A. R. 127; 16 A. S. 209. Offensive trades and manufactures as. — See 42 A. R. 540. Other nuisances producing similar results, existence of as defense to proceedings for maintaining a nuisance. — See 12 A. C. 909. Percolating of filthy water. — See 39 A. R. 16. Place for sale of intoxicating liquors as a — Generally, see 6 L. 721. Same — In violation of law. — See 7 L. 298. Pollution of stream or water as a. — See 48 A. R. 194, 196; 12 L. 577. Pool-selling as a. — See 10 L. N. S. 992. Powder magazines as. — See 38 L. 306. 1706 Tit.I.] PUBLIC NUISANCE. § 348O Power-house of electric lig'ht or power company as a. — See 8 A. C. 567. Prescriptive right to maintain public. — See 30 A. S. 556; 53 L. 891-903. Private — Person's right to abate without suit. — See 26 A. D. 443; 44 A. R. 111. Same — Wliat will be enjoined as interfering with the com- fortable enjoyment of real property. — See 10 A. R. 674. Public — Injunction against, who may obtain. — See 67 A. D. 203. Same — Private action for. — See 31 A. D. 132; 25 A. R. 533. Same — Private citizens, when may obtain injunctions against. —See 52 A. R. 574. Same — What are. — See 107 A. S. 195. Public health and safety — Crimes against. — See Kerr's Cyc. Pen. C. §§ 368-402% and notes. Purprestures, what are, and remedies for tlieir abatement. — See 69 A. S. 271, 281. Railroad in street as a. — See 5 L. 371. Right of landlord to recover damages to premises caused by, existing at commencement of tenancy. — See 6 A. C. 150. Right to compensation for property destroyed in abating pub- lic—See 19 L. 196. Running of statute of limitations against action for dam- ages for. — See 10 A. C. 184. Sewer In neighborhood of plaintiff's land. — See Kerr's Cyc. C. C. §3493 and note par. 18. Slaughter-house as a. — See Kerr's Cyc. C. C. § 3493 and note; also 13 L. 321, 322. Smoke, soot, cinders and coal-dust as a. — See 9 L. 712. Stables as nuisances. — See 32 A. R. 141-143; 17 L. N. S. 1025. Storage of explosives as a. — See 1 A. C. 206, 209; 5 A. C. 498, 503; 38 L. 308; 16 L. N. S. 691. Summary destruction of private property in abating. — See 1 A. C. 345. Surface water as a — Generally, see 4 L. 594; 10 L. 254. Same — Liability of city for. — See 65 L. 2S0. Trees near boundary as a. — See 21 L. 730. Two or more persons creating or maintaining, suits and ac- tions against. — See 118 A. S. 868. Validity of statute authorizing forfeiture or destruction of property used in violation of gaming laws. — See 8 A. C. 910. Vendee of property, when not liable for. — See 59 A. R. 351. What constitutes — As to, generally, see 4 A. C. 373; 5 A. C. 132; 8 A. C. 558; 10 A. C. 66. §3480. PrBLIC >UISA>TE. A public nuisance is one which affects at the same time an entire community or nelgh- 1707 § 3480 CIVIL CODE. [Div.IV,Pt.III. borhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon indi- viduals may be unequal. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 268. See Kerr's Cyc. C. C. for 15 pars, annotation. 66 C*!"138, 147, 56 A. R. 80, 4 P. 1152 (cited); 109 C. 340, 343, 42 P. 437 (referred to in opinion of trial court quoted); 111 C. 25, 30, 43 P. 396 (cited); 116 C. 397. 399, 48 P. 374, 39 L. 581 (cited); 126 C. 670, 673, 77 A. S. 217, 59 P. 202 (cited); 150 C. 171, 174, 88 P. 713 (cited); 150 C. 195, 196, 88 P. 899 (applied — obstruction of public highway); 1 C. A. 229, 231, 81 P. 1118 (applied — street railway tracks not laid in center of street) ; 6 C. A. 276, 280, 92 P. 196 (private person, in suit to abate pub- lic nuisance, must show what); 18 F. 753, 770 (cited). As to constitutionality of statute, see Kerr's Cyc. C. C. § 3479 and note par. 4. As to interference with water-rights as nuisance, see Kerr's Cyc. C. C. § 3479 and note. As to many miscellaneous matters as to nuisance, see note § 3479, ante. Abatement of public nuisance. — See Kerr's Cyc. C. C. §§ 3494, 3495 and notes. Cognate section — Nuisance defined and actions for. — See Kerr's Cyc. C. C. P. § 731 and note. Highway obstructed.-^See Kerr's Cyc. C. C. § 3493 and note pars. 6-10. Injunctions against purprestures and nuisances. — See 35 A. S. 673, 674. Lapse of time does not legalize public nuisance. — See Kerr's Cyc. C. C. § 3490 and note. License from city. — See Kerr's Cyc. C. C. § 3479 and note par. 8. Municipal control over public nuisance upon public streets and highways created by street railroads and other electrical companies. — See 39 L. 609-621. Municipal power as to nuisances affecting public morals, de- cency, peace, and good order. — See 39 L. 520-528. Municipal power over nuisance affecting highways and waters. —See 39 L. 649-685. Municipal power over nuisance affecting safety, health, and personal comfort. — See 38 L. 305-336. Private person may maintain action, when. — See Kerr's Cyc. C. C. § 3493 and note. Public health and safety — Crimes against. — See Kerr's Cyc. Pen. C. §§ 368-402% and notes. 1708 Tit.L] SUCCESSIVE OWNERS. §§ 3481-3483 Purprestures with reference to park. — See ante § 3479 and note par. 9. Question of fact. — See Kerr's Cyc. C. C. § 3479 and note par. 10. Slaug-hter-liouse. — See Kerr's Cyc. C. C. § 3493 and note. Smoke — Municipal control over, as public nuisance. — See 39 L. 551-554. §3481. PRIVATE iVUISANCE. Every nuisance not in- cluded in the definition of the last section is private. History: Enacted March 21, 1872. §3482. WHAT IS NOT DEEMED A NUISANCE. Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 8 pars, annotation. 91 C. 238, 255, 27 P. 604, 608 (applied); 18 F. 753, 771, 779 (cited). As to many miscellaneous matters as to nuisance, sec note § 3479, ante. License from city.— See Kerr's Cyc. C. C. § 3479 and note par. 8. Nuisance caused by deposit of debris not authorized by legis- lation.— See 30 A. S. 555, 556. War department's permission. — See Kerr's Cyc. C. C. § 3479 and note par. 20. §.S483. SUCCESSIVE OWNERS. Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by a former owner, is liable therefor in the same manner as the one who first created it. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. 72 C. 180, 182, 1 A. S. 45, 13 P. 478 (cited); 36 P. 859, 861 (con- strued); 1 C. A. 441, 446, 82 P. 640 (action, without previous demand, for abatement of nuisance). As to many miscellaneous matters as to nuisance, see note § 3479, ante. Grantee's liability for nuisance. — See 34 A. S. 267. 1709 §§3484,3490 CIVIL CODE. [Div.IV,Pt.III. Liability of creator of nuisance as affected by alienation. — See 14 A. D. 336-341. Liability of landlord and lessee respectively for nuisance on premises. — See 34 A. S. 267. Notice to successive owner. — See 14 A. D. 338-341. §3484. ABATEMENT DOES NOT PRECLUDE ACTION. The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 2 pars, annotation. As to many miscellaneous matters as to nuisance, see note § 3479, ante. TITLE II. PUBLIC NUISANCES. § 3490. Lapse of time does not legalize. § 3491. Remedies against public nviisance. § 3492. How regulated. § 3493. Remedies for public nuisance. § 3494. Action. § 3495. How abated. §3490. LAPSE OF TIME DOES NOT LEGALIZE. No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 5 pars, annotation. 66 C. 138, 152, 56 A. R. 80, 4 P. 1152 (cited); 103 C. 236, 238, 37 P. 149 (cited); 128 C. 230, 235, 60 P. 851 (applied); 2 C. A. 346, 350, S3 P. 1082 (cited); 18 F. 753, 787 (cited). As to many miscellaneous matters as to nuisance, see note § 3479, ante. Custom cannot give right to deposit debris in stream. — See 30 A. S. 556. Definition of public nuisance. — See Kerr's Cyc. C. C. § 3480 and note. Laches in objecting to nuisance. — See 50 A. R. 117-119. 1710 Tit.II.] PUBLIC— REMEDIES. §§ 3491-3493 §3491. KEaiEDIES AGAIXST PUBLIC MnSA>CE. The remedies against a public nuisance are: 1. Indictment or information; 2. A civil action; or, 3. Abatement. History: Enacted March 21, 1872; amended March 2, 1880, Code Amdts. 1880 (C. C. pt.), p. 1. See Kerr's Cyc. C. C. for 2 pars, annotation. 18 F. 753, 781 (cited). As to many miscellaneous matters as to nuisance, see note § 3479, ante. §3492. HOW REGULATED. The remedy by indictment or information is regulated by the penal code. History: Enacted March 21, 1872; amended March 2, 1880, Code Amdts. 1880 (C. C. pt.), p. 1. As to many miscellaneous matters as to nuisance, see note § 3479, ante. Cognate sections to wliich reference is here made are Pen. C. §§ 370-374. §3493. REMEDIES FOR PUBLIC >UISA>CE. A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 20 pars, annotation. 54 C. 532, 533 (cited); 87 C. 166, 176, 25 P. 240, 243 (referred to); 89 C. 26, 29, 26 P. 618 (cited); 103 C. 236, 238, 37 P. 149 (ap- plied); 107 C. 199, 205, 40 P. 437 (applied): 109 C. 340, 343, 42 P. 437 (applied); 121 C. 511, 513, 53 P. 1118 (applied); 136 C. 14, 15, 68 P. 108 (cited); 141 C. 360, 363, 74 P. 1049 (applied): 144 C. 134, 139, 77 P. 823 (cited); 150 C. 171, 174, 88 P. 713 (applied — obstruction to highway); 150 C. 277, 279, 88 P. 977 (applied — railroad constructed on public street without authority); 152 C. 118, 120, 92 P. 70 (suit to recover damages caused by nuisance without seeking its abatement); 1 C. A. 140, 141, 81 P. 1022 (applied — obstruction of public alley); 1 C. A. 229, 231, 81 P. 1118 (applied — street railway tracks not laid in center of street); 2 C. A. 346, 349, 83 P. 1082 (private person, not owning land abutting on street cannot maintain action for obstruc- tion in street unless he is damaged in person); 6 C. A. 276, 280, 1711 §§ 3494, 3495 CIVIL CODE. [Div.IV,Pt.TII. 92 P. 196 (private person, in suit to abate public nuisance, must show what); 18 F. 753, 781 (cited). As to many miscellaneous matters as to nuisance, see note § 3479, ante. Action by private person for obstruction of highway. — See 16 A. S. 209. Inconvenience no ground for refusing to enjoin nuisance. — See 30 A. S. 557. Injunctions against purprestures and nuisances. — See 35 A. S. 673, 674. Injunctions against threatened nuisances. — See 73 A. D. 113- 116. Joinder of parties plaintiff and defendant in action to abate nuisance. — See 71 A. D. 311-316. Nuisance by obstructing street — Action for, cannot be main- tained by adjoining owner unless specially damaged. — See 28 A. D. 306. Prescriptive right to maintain public nuisance no defense, when. — See Kerr's Cyc. C. C. § 3490 and note par. 5. Private action for public nuisance. — See 31 A. D. 132-135. Private person may sue to restrain public nuisance, when. — See 30 A. S. 554, 555. Right of action in case of nuisance. — See 4 L. 211, 212. Statute of limitations in actions for nuisances. — See 20 A. S. 176-179. § 3494. ACTION. A public nuisance may be abated by any public body or officer authorized thereto by law. History: Enacted March 21, 1872. 4 C. A. 695, 697, 88 P. 1099 (applied to carpet-beating works). As to many miscellaneous matters as to nuisance, see note § 3479, ante. • Abatement of public nuisance. — See Kerr's Cyc. C. C. § 3493 and note. Action by private person for public nuisance. — See Kerr's Cyc. C. C. § 3493 and note. Right of private person to abate nuisance without suit. — See 26 A. D. 443, 445; 43 A. R, 24-26. §3495. HOW ABATED. Any person may abate a public nuisance which is specially injurious to him by removing, or, if necessary, destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. History: Enacted March 21, 1872. 1712 Tit III ] PRIVATE— REMEDIES. §§ 3501-3503 TITLE III. PRIVATE NUISANCES. § 3501. Remedies for private nuisance. § 3502. Abatement, when allowed. § 3503. Wlien notice is required. § 3501. REMEDIES FOE PRIVATE NUISANCE. The rem- edies against a pi'ivate nuisance are: 1. A civil action; or, 2. Abatement. History: Enacted March 21, 1872. As to many miscellaneous matters as to nuisance, see note § 3479, ante. Cognate section — Nuisance defined and actions for. — See Kerr's Cyc. C. C. P. § 731 and note. §3502. ABATEMENT, WHEN ALLOWED. A person in- jured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary injury. History: Enacted March 21, 1872. See Kerr's Cyc. C. C. for 3 pars, annotation. 126 C. 413, 417 (erroneously cited for §3532), 58 P. 914, 915 (correct citation). As to many misrcllaneous matters as to nuisance, see note § 3479, ante. §3503. AVHEN NOTICE IS REQUIRED. Where a private nuisance results from a mere omission of the wrong-doer, and cannot be abated without entering upon his laud, reason- able notice must be given to him before entering to abate it. History: Enacted March 21, 1872; amonded by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 423, held unconstitutional, see history, § 4 ante. As to many miscellaneous matters as to nuisance, see note § 3479, ante. Notice to successive owner. — See 14 A. D. 338-341. 1713 §§ 3509-3513 CIVIL CODE. [Div.IV,Pt.IV. PART IV. MAXIMS OP JURISPRUDENCE. § 3509. The maxims of jurisprudence hereinafter set forth are intended not to qualify any of the foregoing provisions of this code, but to aid in their just application. History: Enacted March 21, 1872. 88 C. 522, 527, 22 A. S. 331, 26 P. 518, 519, 12 L. 508 (cited); 123 C. 525, 530, 531, 56 P. 458 (referred to with § 3534 and dis- cussing §§ 1634, 1658, 1665). § 3510. When the reason of a rule ceases, so should the rule itself. History: Enacted March 21, 1872. 88 C. 522, 527, 22 A. S. 331, 26 P. 518, 519, 12 -L. 508 (applied); 141 C. 116, 123, 99 A. S. 35, 70 P. 663, 74 P. 766, 64 L. 236 (cited). §3511. Where the reason is the same, the rule should be the same. History: Enacted March 21, 1872. § 3512. One must not change his purpose to the injury of another. History: Enacted March 21, 1872. § 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 contravened by a private agreement. History: Enacted March 21, 1872. 58 C. 95, 98 (applied); 95 C. 364, 368, 30 P. 551, 552 (cited); 99 C. 173, 177, 33 P. 887, 888 (construed and applied); 108 C. 627, 659, 49 A. S. 97, 41 P. 772 (cited); 113 C. 329, 336, 45 P. 691, 36 L. 648 (cited); 129 C. 356, 359, 61 P. 1123 (applied); 135 C. 118, 119, 67 P. 5 (cited); 144 C. 650, 655,' 79 P. 381 (referred to as inapplicable). 1714 Pt.IV.] MAXIMS. §§ 3514-3520 § 3514. One must so use his own rights as not to infringe upon the rights of another. History: Enacted March 21, 1872. 66 C. 138, 151, 56 A. R. 80, 4 P. 1152 (cited); 86 C. 374, 382, 24 P. 1074, 1076, 10 L. 139 (applied); 1 C. A. 335, 339, 82 P. 207 (ap- plied — lower riparian owner damming up stream); 1 C. A. 696, 699, 82 P. 1079 (applied to right of free speech). § 3515. He who consents to an act is not wronged by it. History: Enacted March 21, 1872. 70 C. 467, 468, 11 P. 762 (referred to as inapplicable); 95 C. 541, 544, 30 P. 770, 771 (applied); 99 C. 234, 235, 33 P. 903, 904 (applied); 106 C. 149, 151, 39 P. 623 (cited with §§3516, 3521); 143 C. 501, 504, 77 P. 405 (cited). § 3516. Acquiescence in error takes away the right of objecting to it. History: Enacted March 21, 1872. 106 C. 149, 151, 39 P. 623 (cited with §§3515, 3521). § 3517. No one can take advantage of his own wrong. History: Enacted March 21, 1872. 82 C. 77, 83, 22 P. 979, 980 (cited); 125 C. 468, 471, 58 P. 83 (cited); 4 C. A. 598, 603, 88 P. 643 (applied to gratuitous agent). § 3518. He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession. History: Enacted March 21, 1872. § 3519. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it. History: Enacted March 21, 1872. 143 C. 501, 504, 77 P. 405 (cited); 145 C. 589. 594, 79 P. 268 (cited). § 3520. No one should suffer by the act of another. History: Enacted March 21, 1872. 1715 §§ 3521-3526 CIVIL CODE. [Div.lV. 106 C. 149, 151, 39 P. 623 (referred to with §§3515, 3516); 138 C. 618, 622, 72 P. 173 (applied); 141 C. 221, 227, 74 P. 754 (cited); 149 C. 69, 77, 84 P. 760, 5 L. N. S. 536, 9 A. C. 851 (applied— neg- lig'ent act of city in operating electric-light plant). § 3521. He who takes the benefit must bear the burden. History: Enacted March 21, 1872. 106 C. 151 (cited with §§3515-3516); 138 C. 618, 622, 72 P. 173 (applied); 141 C. 221, 227, 74 P. 754 (applied— liability for debts of company presumably entitles one to corresponding share of profits or dividends). § 3522. One who grants a thing is presumed to grant also whatever is essential to its use. History: Enacted March 21, 1872. 116 C. 587, 591, 48 P. 725 (cited); 142 C. 513, 516, 76 P. 253 (referred to); 145 C. 468, 473, 78 P. 951 (applied). § 3523. For every wrong there is a remedy. History: Enacted March 21, 1872. 117 C. 195, 202, 49 P. 8, 9 (referred to as inapplicable); 149 C. 69, 77, 84 P. 760, 5 L. N. S. 536, 9 A. C. 851 (applied— negligent act of city in operating electric-light plant) ; 7 C. A. 398, 411, 94 P. 582, 583, 588 (applied — remedy in equity for judicial wrong). § 3524. Between those who are equally in the right, or equally in the wrong, the law does not interpose. History: Enacted March 21, 1872. 109 C. 571, 583, 42 P. 225 (applied). § 3525. Between rights otherwise equal, the earliest is pre- ferred. History: Enacted March 21, 1872. 54 C. 140, 143 (referred to as inapplicable). § 3526. No man is responsible for that which no man can control. History: Enacted March 21, 1872. 1716 p|. lY ■] MAXIMS. §§ 3527-3532 § 3527. The law helps the vigilant, before those who sleep on their rights. History: Enacted March 21, 1872. § 3528. The law respects form less than substance. History: Enacted March 21, 1872. 58 C. 95. 98 (applied); 89 C. 38, 41, 26 P. 619, 620 (applied- notice of entry of judgment); 95 C. 364, 368, 30 P. 551, 552 (cited); 129 C. 244, 246, 61 P. 1126 (applied); 135 C. 613, 615, 67 P. 1043 (cited); 136 C. 416, 419, 69 P. 87 (referred to). § 3529. That which ought to have been done is to be re- garded as done, in favor of him to whom, and against him from whom, performance is due. History: Enacted March 21, 1872. 87 C. 253, 256, 25 P. 420 (cited); 99 C. 57, 69, 33 P. 786. 790 (cited); 102 C. 83, 91, 36 P. 378 (cited); 136 C. 416, 419, 69 P. 87 (cited). §3530. That which does not appear to exist is to be re- garded as if it did not exist. History: Enacted March 21, 1872. 123 C. 437, 439, 56 P. 49 (applied). § 3531. The law never requires impossibilities. History: Enacted March 21. 1S72. 2 C. A. 24, 29, 82 P. 1122 (applied — inability of viewers to ascertain damages). . § 3532. The law neither does nor requires idle acts. History: Enacted March 21. 1872. 58 C. 95, 98 (applied); 83 C. 246. 263. 17 A. S. 233. 23 P. 869. 874 (cited); 95 C. 364, 368. 30 P. 551. 552 (cited); 96 C. 210. 212. 213, 31 P. 38 (applied); 126 C. 413. 417 (applied hut crronoously cited as §3502). 58 P. 914. 915 (correct citatl.m): 130 C. 392. 393, 80 A S 138. 62 P. 615 (referred to as inapplicable* : 144 C. 665. 669. 79 P. 383 (applied); 147 C. 739. 745. 82 P. 436 (applied— offer to return that which there is no right to keep); 3 C. A. 463, 469. 86 P. 817 (applied). 1717 §§ 3533-3540 CIVIL CODE. [Div.IV. § 3533. The law disregards trifles. History: Enacted March 21, 1872. 70 C. 519, 521, 11 P. 664, 665 (applied). § 3534. Particular expressions qualify those which are general. History: Enacted March 21, 1872. 123 C. 525, 530, 56 P. 458 (referred to, with § 3509, as inappli- cable). § 3535. Contemporaneous exposition is in general the oest. History: Enacted March 21, 1872. 79 C. 477, 485, 21 P. 865, 866 (applied); 118 C. 474, 484, 50 P. 644 (applied). § 3536. The greater contains the less. History: Enacted March 21, 1872. Maxim applied: 27 C. 524. 146 C. 245, 256, 79 P. 891, 106 A. S. 23 (referred to — decree of divorce). § 3537. Superfluity does not vitiate. History: Enacted March 21, 1872. Maxim applied: 2 C. 269; 5 C. 840; 6 C. 19; 20 C. 681; 22 C. 465; 26 C. 294; 27 C. 496; 32 C. 639, 91 A. D. 602. § 3538. That is certain which can be made certain. History: Enacted March 21, 1872. 82 C. 497, 500, 23 P. 130, 131 (applied); 130 C. 82, 94, 62 P. 516 (cited); 146 C. 350, 368, 80 P. 81, 88 (applied); 150 C. 229, 236, 88 P. 917 (applied to executory contract of sale). § 3539. Time does not confirm a void act. History: Enacted March 21, 1872. § 3540. The incident follows the principal, and not the principal the incident. History: Enacted March 21, 1872. 1718 Pt.IV.] MAXIMS. §§ 3541-3543 110 C. 164, 167. 52 A. S. 75. 42 P. 566 (applied); 142 C. 513, 517, 76 P. 253 (applied); 146 C. 686. 689. 106 A. S. 75. 81 P. 30. 2 A. C. 811 (applied — lien on building is principal thing, and lien on land is incident to completion of building — effect of destruction of building). § 3541. An interpretation which gives effect is preferred to one which makes void. History: Enacted March 21. 1872. 123 C. 140. 143. 55 P. 681 (applied); 129 C. 222, 226, 61 P. 1085 (cited with §3542); 136 C. 97, 104, 68 P. 494 (cited in dis. op.); 141 C. 101, 102, 99 A. S. 33, 74 P. 699 (cited); 3 C. A. 348, 353, 85 P. 165 (applied to statute relative to sale to state for delin- quent taxes); 4 C. A. 184, 190. 87 P. 405 (applied to contract).. § 3542. Interpretation must be reasonable. History: Enacted March 21, 1872. 129 C. 222, 226, 61 P. 1085 (cited with §3541); 130 C. 82, 94, 62 P. 516 (applied). § 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. History: Enacted March 21, 1872. 54 C. 140, 143 (applied but erroneously cited as § 3543 C. C. P.): 93 C. 329, 356, 28 P. 1053, 1058 (applied); 100 C. 617, 621, 35 P. 328 (applied); 101 C. 405, 411. 40 A. S. 65, 35 P. 1019 (applied): 102 C. 93, 105. 41 A. S. 172. 36 P. 374, 24 L. 197 (applied); 37 P. 772. 774 (criticized); 122 C. 621. 623. 55 P. 596 (referred to); 69 P. 481, 483 (applied where loss resulted through pretended agent's disposition to keep things which did not belong to him); 143 C. 501. 504, 77 P. 405 (cited); 83 F. 48, 55 (cited). 1719 INDEX. f References are to sections.] "A COiNSIIJKKATION." See tit. Vnltinhle ColiHldernl l..n. ABANDONMENT. See tit. Appro|irl:i( ion. as to, 2716. in marine Insurance. See tit. Mnrlne liiHiirniKM-. as to, generally, 2716-2732. notice on actual total loss, not necessary, 2709. of child, adoption, 224. by father, custody on, 197. guardianship of, 246. parent presumed to rellntjulsh on, 211. what deemed to be, 224. of homestead, 1243, 1245. of husband by wife, support, 175. of ship by master, 2041. of water appropriation, 1411. parent by child, no liability for support. 208. shipmaster's authority ternilnated by, 2381. thing abandoned, 1872. wat^r appropriation, of, 1411. what deemed to be of child, 224. \IIATKMENT by legacy, 1362. of nuisance. See tit. NulMniice. as to generally, 34S )-3.".ii:!. .\iinucTiox as to, in general, 49. of husband or wife. etc.. 49. \II.S.( rmiMMil «. of accord, 1 .t23. of benefit of transaction, 1.'>R9. of gift. See tit. Gift. of guaranty, 279.'>. of partial performanc<-, 1741. of principal, walvi-s interest, when. 3290. of rent, lease renewed by, when. 1945. partial performance, of, effi^ct, 1741. ACCESSION as to acquisition of property by, 1000. 1721 INDEX. [References are to sections.] ACCESSION (continued). to personal property. by uniting several things, 1025, 1205. increase of tiling hired belongs to liirer, 1926. increase of thing pledged, 2989. inseparable materials, 1029. materials of several owners, 1030. of thing pledged, belongs to pledgeor, 2991. owner's election between thing and its value, 1032. ownership of, 732. principal part, what, 1026, 1027. product of thing belongs to hirer, 1926. the more valuable or bulky, 1027. uniting materials and workmanship, 1028. wilful trespassers, 1031. wrongdoer, liability in damages, 1033. to realty alluvion. See tit. Alluvion. as to, generally, 1014. , avulsion. See tit. AvuLsion. as to, generally, 1015. fixtures. See tit. Fixtures. as to, 1013. removable by tenant, 1019. islands in navigable and non-navigable streams. See tit. Islands. formed by division of streams, 1018. sudden removal of bank. See tit. Avulsion. uniting materials and workmanship, 1028. wilful trespass, 1031. wrongdoer liable in damages, 1033. ACCESSORY a lien is, 2909. transfer of principal thing passes, 1084, 3540. ACCIDENT. See tit. Mistake. deposit by, to be accepted, 1816. disregarding erroneous parts in written instrument, 1640. trust arising from, 2224. ACCIDENT INSURANCE CORPORATION. See tit. Mutual Life, Health, and Accident Insurance Corporation. investment of funds of, 421, 421 [a]. ACCIDENT INSURANCE POLICY "compensation," meaning of, 1644. ACCORD AND SATISFACTION acceptance of consideration extinguishes obligation, 1523. accord as to what is an, 1521. effect of, 1522. 1722 INDEX. [References are to sections.] ACCORD AND SATISFACTION (continued), definition of, 1521. part performance is satisfaction, when, 1524. satisfaction, wliat is, 1523. ACCOUNT. See tit. Aooounting. by employee, 1986, 2014. by partner, 2412, 2438. by servant, 1986, 2014. by trustee, 2237. partners mutual liability to, 2412. ACCOUNTING. See tit. Account. by partners, 2412. ACCRETION. See tit. Acees-sion. ACCUMULATION application of income to support of minor, 726. tlirectioii.s for for benefit of minors in being-, must be, 724. for longer term than until attaining majority, 725. void in part when, effect of, 725. void unless allowed by law, 723. when void, 724, 725. express trust for, of rents and profits, 857. of Income of property for benefit of one or more persons, 724. rules governing, 722. to commence at a subsequent date, 724. to commence on the creation of the interest, 724. rules by which governed, 724. time of commencement and termination, 724. ACKNOWLEDGE. See tits. Adoption; nastard.s. ACKNOWLEDGMENT. See tits. Acknoivledgnient of Insy attorney in fact, 1188. by corporation, 1190. general, 1189. of foreign, 1189. illegitimate child, of, 1387. indorsement on, 1188. interpreters, 1201. inventory of wife's property, of, 165. justice of the peace, power to take, 1194. mortgages, of, 2952. of abandonment or declaration of homestead, 1243. of articles of incorporation, 292. of assignment for benefit of creditors, 3458. of assignment of debt secured by mortgage, 2936. of certificate of partnership, 2480. of conveyances made before the code, 1205, 1206. of homestead abandonment of, 1243. conveyance of, 1242. declaration of, 1243. encumbrance of, 1242. selection of, 1262, 1266. of illegitimate child, 1387. of inventory of wife's property, 165. of marriage declaration of, 77. settlement of, 178-180. of married woman's conveyance, 1187. deed, 1093. power of attorney, 1094. of partnership certificate, 2480. of power of attorney and revocation, 1216. of sale of wine, 3440. officers taking, authority of, 1194, 1201. 1724 INDEX. [References are to sections.! ACKNOWLEDGMENT (continued), partnership, of, certificate to, 2480. prerequisite to taking, 1185. proof of instruments which are not, 1195. action and judgment for, 1203, 1204. recorded vritliont what instruments can not be, 1161. what instruments may be, 1159, 1160. requisites of, 1185. seals of officers to be affixed, when, 1193. signatures of officers must be affixed, 1193. subpoenas may be issued by officers taking, 1201. what law governs, 1205, 1206. who may take within the state, 1180-1184. who may take without the United States, 1183. witnesses to, 1196, 1197. ACKXOWLEDGMEXT OF INSTRUMENTS by married -woman certificate of acknowledgment, 1187, 1189. general form of certificate of within the state, 1189. outside of the state, 1189. by whom may be taken within the state, 1180, 1181. by whom may be taken without the state, 1182. by whom may be taken without the United States, 1183. certificate of justice in certain cases, 1194. deputy can take acknowledgment when, 1184. form of acknowledgment by attorney in fact, 1189. form of acknowledgment by corporation, 1190. form of acknowledgment by married woman within the state, 1187, 1189. without the state, 1189. requisites for acknowledgment, 1185. ACaUIESCEXCE objections removed by, 3516. ACTION by owner and occupant of dominant tenement, 809. by owner of servient tenement, 810. for divorce. See tit. Divorce. for recovery of stock. See tit. AHses.sment of Stocks. for overcharge by street railroad company, 504. lies to obtain judgment proving instrument, 1203. limitation of. See tit. I^imitation of Action.^. pending, not affected by code, 6. purchaser of franchise may maintain, when, 390. to recover assessment of corporate stock, 349. ACT OP GOD liability of carrier relieved by, 2194. performance of obligation excused by, 1511. 1725 INDEX. [References are to sections.] ACTUAL. NOTICE. See tit. Notice. ADEMPTION. See tit. Legacies. deemed advancement, when, 1351. ADJOURNMENT of corporate election, 314. of corporate meeting, 312. ADMINISTRATOR. See tit. Executor and Administrator. ADMIRALTY. See tit. Ships and Sliipping. ADOPTION as to generally, 221. abandoned cliild of, consent not necessary, 224. wlien child deemed to be abandoned, 224. adoption of illegitimate child, 230. adopting parent must be ten years older, 222. any minor child may be adopted, 221. by whom child may be adopted, 222. consent to as to necessity of, 224. of child, 267. of non-residents, 225. of parents, who not required, 224. of wife, 223. contract of, 226. how entered into, 226. to be filed, 227. deserted child, 224. effect of adoption, 227, 228. on former relations of the child, 229. from orplian asylums in general, 224. judge's order on adoption, 227. name of adopting parent, child may take, 228. non-residents, 226. one spouse, must have consent of other, 223. order of adoption, 227. to be filed, 227. petition for, 226, 227. proceedings on adoption, 226, 227. when not necessary, 214. who may adopt, 221, 222. ADULT child, compensation for support of, 208, 210. who is an, 27. ADULTERY defense of plaintiff's adultery, 93. definition of, 93. divorce, ground for, 92. 1726 INDEX. [References are to sections.] ADVANCEMEXTS. See tit. liCgacies. cl:iild, to, effect of, 1309. constitute part of distributor's share, wlien, 1395. death of heir, advance to before decedent, 1399. during life of testator, effect of, 1309. effect on share of child receiving, 1395, 1399. effect where less or greater than share, 1396. taken towards share in testator's estate, 1395. to child, effect of, 1309. to heir who dies before testator, 1399. value of, how determined, 1398. what are, 1398. when deemed ademption, 1351. when not enough, 1396. when too much, 1396. ADVERSE POSSESSION as to generally, 1007. confers title, when, 1007. owner of property held by, may transfer, 1047. property so held may be mortgaged, 2921. ADVERSE POSSESSION OF WATERS. See tit. Appropriation. AFFIDAVIT as to sum contributed by special partner, 2481. corporation, on filing articles of, 294. mining, showing work done or notices posted, 1159. of payment of ten per cent subscription to stock, 295. of publication of notice of sale of delinquent stock, 348. of subscription to stock, etc., 295. of transfer of stock, by non-resident. 326. on filing articles of incorporation, 295. pnrtner.sliip fictitious name, 2471. of notice of special, 2484. to inventory in assignment for benefit of creditors. 3462. when required on transfer of certificate of stock, 326. AFFIRMATIONS. See tit. Oath! and oaths, officer authorized to take proof of instruments may administer, 1201. AFTER-AC^l'IRED PROPERTY passes by will, when, 1312. AFTER-ACailRED TITLE conveyance passes, when, 1106. inures to mortgagee. 2930. AFTER-HORX CIHI^D takes under will, 1337. unprovided for to succeed, 1306. AGE of majority. See tit. Majority. 1727 INDEX. [References are to sections.] AGENCY. See tit. Agent. actual agency, what is, 2299. actual authority of factor, 2368. defined, 2295. actual or ostensible agency, 2298. actual agency, what, 2299. ostensible agency, what, 2300. acts which an agent may perform, 2305. acts within scope of authority affecting principal how, 2330. agent as trustee authority as to persons having notice of restrictions, 2318. must keep principal informed, 2020. not having authority to contract, 2345. not to act in own name, 2322. rights of persons dealing with without knowledge of agency, 2336. to conform to authority, 2019. to define scope of agency, 2322. under legal disability, 2355. warrant of authority, 2342. who may be, 2296. agent's authority as to persons having notice of restrictions, 2318. as to persons dealing without knowledge of agency, 2336. attorney in fact to convey realty. See tit. Attorney in Fact. auctioneers. See tit. Auctioneers, authority of agent agent warrants his, 2342. as to persons having notice of restrictions, 2318. as to persons with notice of restrictions, 2318. construed by its specific terms, not by the general terms, 2321. exceeded, whether principal bound, 2333. exception as to general, 2322. exceptions to general, 2322.* implied, 2319. measure of, 2315, 2318. necessary authority of, 2319. of general agent to receive price of property, 2325. of ostensible authority, 2317. of special agent to receive price, 2326. to be construed by its specific rather than its general terms, 2321. to disobey instructions, 2320. to receive price, 2325. to warrant, 2342. 1728 INDEX. [References are to sections.] AGENCY authority of agent (continued). want of, actual, 2316. what authority may be conferred, 2304. what included in authority to sell real property, 2323. what included in power to sell personal property, 2323. what may be delegated to, 2304. whether principal bound when agent exceeds, 2333. cannot have authority to defraud principal, 2306. creation of agency unnecessary, 2307. collecting, duty of, 2021. consideration for appointment unnecessary, 2308. covenants may be given by agent, 2324. created, how, 2307. created by ratification, 2307. damages for breach of warranty of agent's authority, 3318. death of agent terminates, 2355. principal terminates, 2356. definition, 2295. delegation of authority, 2349, 2350. when agent may make, 2349. delivery of contract to agent, 1626. exceptions to general authority, 2322. exclusive credit given to. effect, 2335. factors. See tit. FaetorN. fraud of, 2306. eeneral aii^eiit autliority to receive price, 2325. defined, 2297. general or special agency, 2297. incapacity of party terminates, 2345. indemnity against acts of, 2775. instructions, agent's power to disobey, 2320. instrument executed by binds principal, wlien, 2337. instrument intended to l)ind principal does not bind agent. 2337. insurance by, 2589. interpretation of authority, 2321. manager of ship general agent for owner.s, 2070. married woman's power of attorney, 1094. measure of agent'.s authority. 2315, 231S. minor cannot delegate power, 33. mutual obligations of principals and agt-nts t publication of, 339. sale of stock at auction, 341. disposition of stock purchased by corporation, 344. extension of time of delinquent sale, notice of, 345. 1734 INDEX. [References are to sections.] ASSESSMENT OF STOCK delinquent notice of a.siiies.sinent sale of stoclv at auction (continued), higliest bidder to be purcliaser, 342. in default to bidder corporation may purcliase, 343. liow levied, 331, 332. levy of assessment while old assessment unpaid, 333. not invalidated by failure to make publication of notice as required, 346. notice of assessment, 335. delinquent notice, form of, 337. form of notice, 335. publication of notice, 336. service of notice, 336. order of, what shall contain, 334. power to assess, limitation as to, 332. waiver of sale, action to recover assessments, 349. ASSESSMENTS. See tit. Taxes and Assessments. ASSIGNEE. See tit. Assignment for Benefit of Creditors. takes subject to rights of third persons, 3460. ASSIGNEE OP LESSEE remedies of lessor against, 822. ASSIGNMENT. See tits. Assignment for Benefit of Creditors;' Conveyances. as to what may be assigned. See tits. Clioses in Action; Per- sonal Property. of action against street railway for penalty for overcharging, 504. of choses in action, 954. of debt carries mortgage, 2934. of debts secured by mortgage, 2936. of life insurance policy, 2764. of mortgage as notice, 2933. partner may not make, 2430. warranty of written instrument sold, 1774. ASSIGNMENT F^OR BENEFIT OF CREDITORS assent of creditor necessary to modification of, 3473. assignee accounting of, 3469. bond of, 3467. compensation of, 3471. protected for acts done in good faith, 3472. takes subject to right of third persons, 3460. as to, generally, 3449. certain transfers not affected by, 3451. conditions of disposal and conversion, 3468. debtor may execute, when, 3449. 1735 INDEX. [References are to sections.] ASSIGNMENT FOR BENEFIT OF CREDITORS (continued), exempt property not affected by, 3470. insolvency, what is, 3450. instrument of assignment, 3458. compliance with statute necessary to validity, 3459. inventory filing of, 3463. nature and requisites of, 3461. recording of, 3463. where more tlian one assignor, 3464. verification of, 3462. modification of assignment, assent of creditor necessary to, 3473. of real property, 3466. what debts may be secured, 3452. when assignment void, 3457, 3465. as to, generally, 3457. ASSOCIATIONS AND SECRET ORDERS not insurance corporations, 451. ATTACHMENT exemption of policy of life, etc., insurance from, 453k. lien of officer, 3057. of mortgaged personalty, 2968, 2972. ATTORNEY FEES upon foreclosure of mortgage. See tit. Land and Building Cor- porations. ATTORNEY-GENERAL duty of when alien does not claim, 1405. may .inquire into corporations, 382. proceedings by, in case of escheat, 1406. ATTORNEY IN FACT as to, 1095. certificate of acknowledgment by, 1192. form of certificate of acknowledgment by, 1192. how must execute for principal, 1095. officers must aflSx their signatures, 1193. to convey realty, 1095. revoking power of, 1216. ATTORNMENT by tenant to stranger, effect of, 1948. to landlord on grant of rent, etc., 1111. AUCTION auctioneer's memorandum, 1798. bids by seller or agent, when void, 1797. bid, withdrawal, 1794. by bidding, 1797. defined, 1792. 1736 INDEX. [References are to sections.] AUCTION (continued). delinquent stock, sale of at, 341. memorandum of auctioneer, 1798. pledge, sale of at, 3005. sale by, 1792. complete, when, 1793. under written conditions modifying, 1795. statute of frauds, 1624. under written conditions, 1795. withdrawal of bid, 1794. without reserve, rights of buyer, 1796. AUCTIONEERS. See tit. Agents. authority from seller, 2362. authority from bidder, 2363. memorandum by, as to, 1798. AUTHOR property of in writings, 980-985. AUTHORITY joint, how construed, 12. AUTOMOBILE franchise for constructing road for, 524. AVERAGE. See tit. General Average. AVOIDING TOLLS penalty for, 519. • AVULSION. See tit. Accretion. distinction from alluvion, 1015. islands. See tit. Islands. sudden removal of bank, 1015. AWARD. See tit. Arbitration. BADGES officers of railroads to wear, 488. to be worn by agents of society for prevention of cruelty, etc. 607f. BAGGAGE. See tits. Carriers; Railroad Corporations. bicycle as, 2181. carried and delivered how, 2183. at owner's risk, when, 2183. check to be affixed to by railroad, 479. checking, generally, 2183. consists of what, 2181. damages for failure to check, 479. liability for, 2182. lien of carrier on, 2191. obligation to carry, 2180. obligation to carry on stage, 2180. sale of by innkeeper for storage, 1862. 1737 INDEX. [References are to sections.] BAGGAGE (continued). to be checked, 479. unchecked, carried at owner's risk, 2183. BAIL. See tit. Indemnity. as to what is, 2780. how regulated, 2781. BAILED HOPS. tare op, 995. BAILMENT. See tits. Depo.sit; Depositary; Hiring; Loan for Use; W^arebou.senian. gratuitous depositary, creditor is, when, 1505. BANK. See tits. Banking' Corporations; Savings Banks. book and notice to directors and stockholders, 312[a]. lien of banker, 3054. BANK ASSOCIATION. See tit. Banking Corporations. BANK COMMISSIONER land and building corporations to report to, 644. subject to, 647. report of, 644. BANK-NOTES. See tit. Negotiable Instruments. as to, 3095, 3261. BANKER lien of, 3054. BANKING CORPORATIONS as to, 300. capital stock of, 300. copy of proceedings of meeting, 300. BASTARDS adoption of, 227, 230. custody and control of, 200. legitimized by subsequent marriage of parents, 215. proof of illegitimacy, 195. BENEFIT CORPORATION. See tit. Religious, Social, and Be- nevolent Corporations. cumulative voting of, 307. directors or trustees, number of, 290, 305. exempt from insurance laws, 451, 453p. fraternal societies exempt from insurance laws, 451, 453p. insurance associations, 452a, 453. insurance, mutual life, etc., 437, 452. record to be open to inspection, 378. BENEVOLENT ASSOCIATIONS. See tit. Benefit Co-operative Society. bequests to, limitation of power to make, 1313. incorporation of, 592a-604. insurance associations, 452a, 453. 1738 INDEX. [References are to sections.] BENEVOLENT CO-OPERATIVE SOCIETIES are corporations within the statute, 451. BEaUESTS AND DEVISES. See tit. Wills. BICYCLE. as baggage. See tit. Baggage. franchise for constructing paths for, 524. is baggage or luggage, 2181. BIGAMY ground for annulling marriage, 82. BILLS OP EXCHANGE. See tits. Foreign BilLs of E.xcliange; Negotiable In-stninients. acceptance as to generally, 3193. by separate instrument, 3196. cancelation of acceptance, 3198. holder entitled to acceptance on face, when, 3194. how made, 3193. promise to accept equivalent to acceptance, when, 3197. what is admitted by, 3199. acceptance or payment for honor as to generally, 3203. holder of bill bound to, when, 3204. how enforced, 3206. how made, 3205. notice of dishonor not excused by, 3207. when may be made, 3203. bill in parts of set, 3173. converted into promissory note, when, 3246. days of grace, not allowed, 3181. definition of, 2171. drawee in case of need, 3172. form and interpretation of, 3171. must be in a set, 3174. presentment for acceptance, 3185. how made, 3186. to be made to drawee in case of need, when, 3188. to joint drawees, 3187. when may be presented, 3185. when must be made, 3189. presentment for payment, 3212. effect of delay in certain cases, 3213. effect in other cases, 3214. excuse for presentment, as to, 3218. delay when excused, 3219. presentment and notice when excused, 3220. presentment when excused, 3218. 1739 INDEX. [References are to sections.] BILLS OF EXCHANGE (continued). presentment of part of set, 3173. riglits and obligations of drawer, 3177. wlien not accepted, wliere to be made, 3211. wliere payable, 3176. where payable at a particular place, 3212. BILL OF LADING conditions in limiting liability, 2176. consignee entitled to, 2130. definition of, 2126. delivery according to exonerates carrier, 2131. effect of accepting from carrier, 2176. . effect of on right, etc., of carrier, 2129. negotiability of, 2127, 2128. refusal to give, effect of, 2130. surrender of before delivery, carrier may require, 2132. to "bearer," 2128. to be given to consignor, 2130. BISHOP of religious corporations, 602. BLASTING ROCK. See tits. Negligence; Nuisance. BOARD OF TRADE assessments, 592d. as to, 286. by-laws of, 592c. capital stock of, 592. certificate of, 592. formation, organization, and powers of, 591. power of trustees, directors, and executive committee, 592a. power to acquire, use, and sell property, 592b. pre-existing corporations may become, 592e. rights and liabilities of stockholders, 592. BOARDING-HOUSE, KEEPER OP. See tit. Innkeepers. BODILY AILMENTS. See tit. Wills. BOLTS. See tit. Logger's Lien. lien on, 3065. BONDS. See tits. Guaranty; Indemnity; Suretyship. as to, 3261-3268. cemeteries may issue, 611. corporations, issue of restricted, 359. negotiable, 3095, 3261. non-residents, on transfer of stock to, 326. of railroads. See tit. Railroad Corporations. savings and loan corporations may invest in what, 574. when required on transfer of certificate of stock, 326. BOOKS OP RECORD as to generally, 1171. 1740 INDEX. [References are to sections.] BORROWER. See tits. Hiring; Loan for Use. care required of, 1886. degree of skill to be exercised, 1888. of animal borrowed for use, 1887. to bear expenses, when, 1892. to repair injuries, when, 1889. BOTTOMRY. See tit. Respondentia. definition of, 3017. interest, rate of, 3022. lender, rights of when no necessity for bottomry, 3023. lien of, how lost, 3027. loan becomes due, when, 3026. master may hypothecate freight money, 3021. master may hypothecate ship, 3019, 3020. when owner cannot be reached, 3020. owner may hypothecate ship, 3018. preference of lien over other liens, 3028. priority of lien, 3029. rate of interest, 3022. rights of lender when no necessity for bottomry, 3023. stipulation for personal liability void, 3024. when loan becomes due, 3026. BOUNDARIES acquiescence in line, prescription by, 841. boundaries by ways. See tit. Ways, Boundary by. as to generally, 831. by water. See tit. AVaters, Boundary by. as to generally, 830. fence. See tit. Fence. lateral and subjacent support. See tit. Lateral Support. as to generallj', 832. line trees, 834. rights of owners in, 829. trees whose trunks are wholly on land of one. See tit. Treen. BOYS. See tit. Males. BREACH OF PROMISE OF MARRIAGE. See tit. Contracts. BRIDGE CORPORATIONS as to, generally, 528-531. BRIDGES. See tit. Bridges, Ferry, Wharf, Chute, and Pier ( «>r- poratlon. duty of wagon road corporation to construct, etc., 51-1. to be constructed by water and canal corporations. See tit. W^ater and Canal Corporations. water companies, duty to maintain, 551. BRIDGES AND FERRIES. See tit. BrldfceN. i'erry. \Vlinrf. Cliute, and Pier Corporations. on line of toll road. See tit. Wagon road Corporations. 1741 INDEX. [References are to sections.] BRIDGES, FERRY, WHARF, CHUTE, AND PIER CORPORA- TIONS annual report to be made to supervisors, 530. by whom to be made, 530. damage for failure to report, 530. duty of district and city attorneys in relation to, 530. publication of report, 530. what report to contain, 530. corporate existence ceases, when, 529. statute applies to natural persons and corporations, 531. toll not to be collected without authority, 528. BROKER. See tit. Agency. real estate, statute of frauds applies to, 1624. BUILDING CORPORATIONS. See tit. Land and Building Corpo- rations. BUILDING AND LOAN ASSOCIATIONS annual report of, 645. arrears in payments, defaults and forfeitures, 639. articles of incorporation, what to contain, 633. bonds, investments in and loans upon, 647. capital stoclv of as to g-enerally, 634. form of, 634. control and supervision of by state, 644. defaults, 639. definition, 648. directors from holders of guarantee stock, 634. dividend fund, 641. dues of as to g-enerally, 634. installment stock, 634. paid-up stock, 634. fees, 634. fines, 634. foreign agents of, 646. deposit by, 646. forfeitures, 639. formation of, 633, 648a. free shares, retiring, 63Fi, gruarantee .stoclc as to generally, 634. directors from holdei.-s of, 634. installment stock, 634, interest, 638. investments in and loans upon bonds, 647. of funds in mines unlawful, 737. 1742 INDEX. [References are to sections.] BUILDING AND LOAN ASSOCIATIONS (continued). loans as to generally, 637. of funds on mines unlawful, 637. on own guarantee stock unlawful, 637. unlavrfiil borrowings, 637. loan on own guarantee stock, 637. to invest or loan funds to mine, 637. upon bonds, 647. losses, 641. maturity of stock, 636. membership, 643. organization of, 633. paid-up stock, 634. penalty, 637. powers of, 633. profits and losses, 641. prohibition, 637. purcliase of real estate, 640. reincorporation of existing associations, 648a. reserve fund, 641. retiring free sliares, 635. repayment of loan, 638. report all statements in perjury, when, 645. annual, 645. further reports, 645. security, 638. state supervision and control, 644. status of present contracts, 648. stock, maturity of, 636. withdrawals, 642. Ill IjI^S. See tits. AniiiiulM; DaiiiaeoN. lien for service of, 3062. Bl'KIAL. See tit. Cemetery. burned bonds, of corporation, proceedings to restore. 329. right of, 801, 802. nuSIAESS. See tit. Goo«l-\Vlll. lirSINESS ASSOCIATION, .^c' tit. IIiihIim-ss ( orporiil Ioiim. co-operative, 6531)-i"i.'(;?k. ni SIXESS COIirOK.VTIOX. See tit. IliiNiii*-s>4 \s<«>cl:it Ion. co-operative, 652-G53a. BLSIXESS DAYS. See tit. iloHilii>.s. wliat are, 9. llY-IiAWS OF COUrOH Vi'IOXS. See tit.':. CIiiiiiiIht iif ( ommerce. HonrdM o£ 'rrmle. Ete.; CoileeeH nnd Seiulnariea; Co- operntHe IliiNinenM ANMoeintionH. 1743 INDEX. [References are to sections.] BY-LAWS OF CORPORATIONS (continued), amendment of by-laws, how made, 304. co-operative agricultural, etc., associations, what to contain, 653p. co-operative corporations, what to contain, 653w. of municipal corporation. See tit. Municipal Corporation. of mutual benefit and life associations, what may provide, 453. of mutual life, etc., insurance corporations, may limit amount of stock, etc., 445. record of, 304. when, how, and by whom, 301. CANAL CORPORATIOIV as to, generally, 548-552. CANCELATION and alteration of contracts, as to, generally, 1699-1701. in part, 3414. of acceptance of bill of exchange, 3198. of deed does not revest title, 1058. of instruments, in general, 3412, 3414. of will, 1292, 1293. recording of, 3412. CANCELATION OF INSTRUMENTS cancelation in part, when, 3414. instrument obviously void, 3413. may be ordered, when, 3412, 3414. CAPACITY TO CONTRACT. See tit. Contract. of idiots. See tits. Idiots; Persons of Unsonnd Mind. of intoxicated persons. See tit. Intoxication. of minors. See tits. Infant; Minors. as to, 1557. CAPITAL STOCK. See tit. Corporation. assessment of. See tit. Assessment of Stock. assessment of railroads, 455. minimum required to be paid in before incorporation, 290a. of railroad corporations. See tit. Railroad Corporations. transfer of railroad stock, 455. not valid except, 455. CARE. See tit. Negligence. degree of, 16. great borrower to use, 1886. carrier of messages for reward to use, 2161. employee, for his own benefit, to use, 1979. shipmaster to use, 2043. ordinary carrier of property for reward, 2096. carrier of persons gratuitously, 2090. 1744 INDEX. [References are to sections.] CARE ordinary (continued). depositary for hire, to use, 1852. employee for reward, to use, 1978. hirer, to use, 1928. voluntary agent, to use, 2078. trustee, to use, 2259. slight gratuitous carrier of property to use, 2114. gratuitous depositary, to use, 1846. gratuitous employee, to use, 1975. utmost carrier of messages by telegraph, to use, 2161. carrier of persons for reward, to use, 2100. CARELESSNESS. See tit. Negligence. CARRIAGE common carriers. See tit. Common Carriers. of messages. See tits. Carriers of Messages; Telegrranis. of persons. See tit. Cai*riers of Persons. of property. See tit. Carriers of Property. CARRIAGE IN GENERAL. See tit. Common Carrier. carriers by sea, rights and duties, 2088. contract of carriage, 2085. gratuitous carriers, obligations of, 2089. who has begun to carry, 2090. kinds of carriers, 2086. inland carriers, 2087. marine carriers, 2087. CARRIER act of God relieves of liability, 2194. baggage. See tit. Baggage. bill of lading. See tit. Bill of Lading. common carrier. See tits. Common Carriers; Common Carrier.H of Persons; Common Carriers of Property. defined, 2168. compensation, 2173. payment and refusal of, 2173. connecting, delivery to, 2201. consignee defined, 2110. contract of carrier, 2085. damages for breach of obligation to deliver, 3316. for breach of obligation to receive goods, 3315. for delay, 3317. for non-delivery, 3316. for refusal to receive freight, 3315. delay in carriage of freight, liability for, 2196. delays, generally, 2104. 1745 INDEX, [References are to sections.] CARRIER (continued). delivery exonerates carrier, when, 2131. in part, apportionment of freight, 2140. manner of, 2118, 2119. not made, carrier may exonerate himself, liow, 2121. obligations of carrier on, 2120. place of, 2118, 2119. surrender of bill of lading may be demanded before, 2132. to connecting carriers, 2201. duty of carrier of persons. See tit. Common Carriers of Per- sons. ejection of passengers. See tit. Ejection for Non-Payment of Fare. exemption from liability where negligent, none, 2196. expense of transportation of things sold, 1755. fare. See tit. Fare, freigrbt defined, 2110. not accepted, to be stored by carrier, 2121, not delivered, obligation of carrier, 2120. obligation to accept, 2169. frei{i:litage apportionment of, 2140. according to distance, 2142. hy contract, 2140. carriage further than agreed, 2143. consignee liable for, when, 2137. consignor liable for, when, 2138. defined, 2110. for natural increase of freight, 2139. lien for, 2144. marine insurance. See tit. 3Iarine Insurance. sale of perishable property for, 2204. to be paid, when, 2136. general average adjustment. See tit. General Average. gratuitous care required of. See tit. Care. inland, what is, 2087. insurable interest of. See tit. Insurable Interest. as to, 2548. jettison. See tit. Jettison, liability for negligence cannot be relieved from, 2175. limiting of, generally, 2174-2176. when limitation on void, 2175, lien for freightage, 2144. 1746 INDEX. [References are to sections.] CARRIER lien (continued). limitation on, without notice of value, 2200. on baggage, 2191. loss of freig-lit liable for, when, 2194. no liability for, when, 2194. loss of property or money, liability for, 2177. loss, proof of, 2202. loss through negligence, liability, 2195. marine. See tit. Ships and Sliipping. negligence of, cannot be exempted from by contract, 2195. notice carrier to give for non-delivery, 2120, 2121. of value of freight, to be given, 2200. obligations. See tit. Obligations. limited, how, 2174-2176. of messages. See tit. Carriers of Messages. passengers. See tit. Passengers. damages for refusal to receive, 3315. duty to, generally, 2100. ejection of. See tit. Ejection for ]Von-Payn»ent of Fare. entering train without payment of fare, 2189. safe and fit vehicles. See tit. Veliicles. seats to be provided, 2185. penalty for failure to observe schedule time, 2172. perils of sea. See tit. Perils of Sea. preferences may be given, when, 2171. preferences not be given, when, 2170. property care required of, 2114. conflicting orders of consignee and consignor, 2116. must obey directions, 2115. rate of speed, 2104. rules and regulations, 2186. sale of perishable freight, 2204. schedule time must be observed, 2172. state may be given preferences, 2171. tickets. See tit. Tickets. time of running must be observed, 2172. United States may be given preferences, 2171. value of articles to be stated, when, 2200. vehicles. See tit. Vehicles. not to be overcrowded, 2102. written contract of, 2176. CARRIER'S DELAY damages for, 3317. 1747 INDEX. [References are to sections.] CARRIER'S OBIilGATION TO DELIVER breach of, damages for, 3316. CARRIER'S OBLIGATION TO RECEIVE GOODS breach of, damages for, 3315. CARRIERS OF MESSAGES (other than telegraph and telephone companies). See tits. Telegrrayh and Telephone Com- panies. degree of care and diligence required, 2162. duty to deliver, 2161. CARRIERS OF PERSONS. See tit. Common Carriers o£ Persons. gratuitous carriage, 2090. degree of care required, 2096. carriers for re-^vard as to who are passengers. See tit. Passengers. delays, 2104. general duties of, 2100. negligence of. See tit. Negligence. overloaded vehicles prohibited, 2102. rate of speed, 2104. treatment of passengers, 2103. vehicles. See tit. Vehicles. bound to provide safe and fit, 2101. not to be overloaded, 2102. CARRIERS OF PROPERTY bill of lading. See tit. Bill of Lading. as to generally, 2126-2132. care and diligence required of, 2114. as to generally, 2114. conflicting orders by consignor, 2116. consignee not accepting, disposition made of freight, 2121. delivery of freight as to generally, 2118. notice when not delivered, 2120. place of delivery, 2119. stoppage in transitu. See tit. Stoppage in Transitu. when consignee does not accept, 2121. deviation from route, 2117. freightage. See tit. Freiglitage. as to generally, 2136-2144. general average. See tit. General Average. as to generally, 2148-2162. general definition, 2110. notice when freight not delivered, 2120. obligations of, 2114. stowage, 2117. to obey directions of shipper, 2116. 1748 INDEX. [References are to sections.] CAUSA MORTIS. See tit. Gittn. CEMETKRY. See tit. Cemetery Corporationn. burial riglits of servant, 801, 802. disposal of lots, 598. establishing by corporation. 595. CEMETERY CORPORATIONS alienability of lots revived how, 613. annual report of, 609. bonds may be issued, 611. burial lot inalienable, when, 613. improvement in grounds, 611, 612. inalienability of lot, when, 613. land that may be held by and disposed of, 608. must be surveyed and subdivided into lots, 608. lot owners previous to purchase to be members, 614. lot, sale of after disinterment, 613. lots, rights and interests in, 613. lots, surveying, etc., 608. may hold personal property and to what amount, 610. how disposed of, 610. may issue bonds to pay for grounds, 611. proceeds of, how disposed of, 611. may sell lands, when, 615. may take and hold property in trust, 616. application of Income, 616. investment of proceeds of income in what, 616. purposes for which may hold, 616. may take and hold title to what and how, 612. members eligible to vote and hold office, 609. personal property, holding and disposing of, 610. property held in truNt investment of proceeds, 616. proceeds to be used, how, 611, 616. sale of lands, conditions and restrictions, 608. sale of lots, proceedings on, 615. who may not be buried in lot, 613. CERTIFICATE false, liability of officers, 316. fee of recorder for recording, 1165. of corporate existence, extending by, 401. of deposit, negotiable, 3095. non-negotiable, when. 3095, 3621. of discharge of mortgage, 2939. of indenture of apprenticeship, 275. of marriage, 69a, 73, 79. of master of ship in favor of seamen, 2059. of partnership. See tit. Partnership, General. 1749 INDEX. [References are to sections.] CERTIFICATE (continued). of partnersliip under fictitious name, 2466-2477. of residence of corporation, when to be filed, 1163. of restoration of lunatic, evidence of legal capacity, 40. of savings and loan, .576. of stock. See tit. Corporation. to seamen of efforts to save cargo, etc., 2059. CERTIFICATE OF ACKXOAVLEDGMEXT. See tit. Acknowleds- nient. form of certificate of acknowledgment. See tit. Aoknowledg- nient. CERTIFICATE OF DEPOSIT as to generally, 3268. CERTIFICATE OF MARRIAGE. See tit. Marriage. CERTIFICATE OF SHERIFF'S SALE. See tit. SlieriltVs Certifl- eate of Sale. CERTIFICATE OF STOCK affidavit or bond required before, when, 326. how issued, 323. how transferred, 324. irrigation stock appurtenant to land, 324. lost, etc., certificate, procedure for securing new, 328. married woman may transfer, 325. shares of personal property, 324. CERTIFIED COPY of recorded instrument may be recorded, 1218. CHAMBER OF COMMERCE. BOARDS OF TRADE, MECHANICS' INSTITUTES, ETC. as to, generally, 591-592e. assessments, power to levy and collect, 592d. business of, 591. by-laws of, 592c. capital stock and certificates of, 592. rights and privileges of stockholders, 592. executive committee, powers which may be conferred on, 592a. formation of, 591. meetings of, how called and conducted, 592c. organization of, 591. power which may be conferred on the trustees, etc., 592a. powers of, 591. to acquire, sell, and use property, 592b. to levy and collect assessments, 592d. pre-existing corporation may have benefit of title, 592e. certificate, execution, and contents of, 592e. notice of meeting and object to be published, 592e. rights and privileges of stockholders, 592. trustees, powers which may be conferred upon, 592a. CHANCERY COURTS. See tits. Equity; Speclflc Relief. 1750 INDEX. [References are to sections.] CHANGE OF N.4MB. See tit. Corporations. conveyance of real estate on, how made, 1096. CHARGE. See tit. Privileged Communication. CHARITABLE BEQ,UESTS. See tit. Wills, CHARITABLE USES AND BEaUESTS limitation as to time and amount, 1313. CHARITABLE USES AlVD TRUSTS. See tits. Trusts; Uses and Trusts. CHARTER PARTY. See tit. Ships and Shipping. definition of, 1959. insurable interest, 2665. shipmaster may enter into, 2376. ship's manager may enter into, 2388. CHASTITY want of, avoids promise of marriage, 62. CHATTEL INTERESTS what are, 765. CHATTELS, REAL estate for life of third person is not, 766. what are, 765. CHECKS. See tit. Negotiable Instruments. time of presentment, rules applicable to checks, 3255. CHILD. See tit. Parent and child. en ventre sa mere, 29, 698. property of, parents' control over, 202. allowance out of for maintenance, 201. takes under will, when, 1339. to maintain parent, when, 206. unborn. See tit. Unborn Child. who may be arrested and committed to asylums, etc., 607g. CHILDREN. See tits. Parent and Child; Succession; \Vllls. custody of in actions for divorce, 138. legitimacy of, born in wedlock, 193. posthumous, 698. societies for the prevention of cruelty to. See tit. Sociclics for the Prevention of Cruelty to Children and Animals. unprovided for by will to succeed, when, 1307. CHILDREN OF ANNULLED MARRIAGE. See tit. Divorce. CHOSES IN ACTION. See tit. Personal Property. definition of, 953. judgment is, 954. survivorship, 954. transfer of, 954. CHURCH. See tit. Religious Corporations, seat at, right to, 801, 802. CHUTE. See tit. Bridges, Ferry, Wharf, Chute and Pier Cor- porations. as to, 529, 530, 531. 1751 INDEX. [References are to sections.] CIRCUS. See tits. Civil Rights; Places of Public Amusement. refusing admission to unlawful, when, 53. CITIZENS rights of in places of public accommodation or amusement, 51. CITY. See tits. Municipal Corporations; W^ater Companies. water companies, contract witli to furnish water, 548, 54J. CITY L.OTS. See tit. Leases of City Lots. CIVIL CODE act establishing, 1. actions pending not affected by, 6. cited, how, 21. construed liberally, 4. continuation of statutes and common law by, 5. definition of terms, 14. divisions of, 1. does not affect pending actions, 6. how cited, 21. not retroactive, 3. private statute, how affected by, 20. repeal of other statutes by, 20. retroactive effect of not as to wills, 1375. not generally, 3. rules of construction. See tit. Rules of construction. takes effect, when, 2. terms defined, 14. title of, 1. vested rights not affected by, 6. CIVIL LAW DOCTRINE ascending line, 1391. collateral line, 1390. degrees of, 1393. descending line, 1391. direct line, 1391. degrees of, 1392. CIVIL RIGHTS discriminations prohibited, 52. of citizens in places of public accommodation or ainuse- ment, 51. CLAIM AND DELIVERY. See tit. Replevin. gold coin, judgment. See tit. Judgment. judgment for delivery, 3379. when holder may be compelled to deliver, 3380. CLAIM NOT DUE no lien for, 2882. CLAIMANT. See tit. Appropriation of Water. of waters, 1420. 1752 INDEX. [References are to sections.] CLERK OF COUNTY acknowledgments, may take, 1181. articles of incorporation to be filed with, 296. certificate of special partnership to be filed with, 2479. duty of recording- marriage licenses, 69. to keep register of partnership names, 2470. where acknowledgment taken before justice of the peace, 1194. may take acknowledgments, 1181. notice of dissolution of special partnership, filing with, 2509. petition to appraise homestead must be filed with, 1247. register of partnership names must be kept by, 2470. CODICIL execution of republishes will, when, 1287. included under term "will," 14. republication of, 1287. revocation of will revokes, 1305. COLLATERAL SECURITY. See tit. Pledge. COLLATERAL WARRANTIES abolished, 1115. COLLECTION agent for, as to duties of, 2021. effect of warranty of collectibility, 2800. partner may make when acting in liquidation, 2462. COLLEGES AND SEMINARIES OF LEARNING appointing president, 650. appointing professors, 650. articles of incorporation, 649. contents of, 649. board of trustees, term, quorum and powers, 650. by-laws, making of, 650. consolidation of, 652. annual reports to, 652. new corporation, trustees' term of, 652. what authorized to consolidate, 652. course of study, 650. election of other trustees, 650. existing corporations may reincorporate, 651. issue diplomas, 650. may take under wills, 1275. powers of trustees, 650. president, election of by trustees, 650. quorum of trustees, 650. salaries, fixing of, 650. specific grants to, 653. cannot be diverted, 653. 1753 INDEX. [References are to sections.] COLLEGES AND SEMINARIES OF LEARNING (continued), transfer of property from existing to new, 651. trustees of, and their powers, 650. to declare vacancy, 650. to fill vacancy, 650. to hold property, 650. .t.o mortgage and lease property, 650. wills, may take under, 1275. COLLISION loss by, apportioned how, 973. of ships. See tit. Rules of Navigafion. of vessels, from breach of rules, 971. on breach of rules of navigation, liability, 972. implies wilful default, 972. rule for avoiding, 970. COLLOQUIUM. See tit. LibeL COLLUSION definition of, 114. in divorce. See tit. Divorce. presumed from lapse of time, 125. COLOR. See tit. Trade-Mark.s. COMMISSION 3IERCHANT. See tit. Factors. COMMON interest in, what is, 685. what interests are in common, 686. COMMON CARRIERS in general. See tit. Common Carrier.s in General. of messages. See tits. Carrier.s of messages; telegrams; Tele- grraph and Telephone Companies. of persons. See tit. Common Carriers of Persons. of property. See tit. Common Carriers of Property. COMMON CARRIERS IN GENERAL certain agreements void, 2175. compensation must be reasonable, 2173. definition of, 2168. loss of valuable letters, liability for, 2177. modification of liability of carrier by contract, 2176. assent of modification necessary, 2176. by acceptance of ticket, etc., 2176. not to give preferences, 2170. must give what preferences, 2171. obligations of, altered by agreement, 2174. obligation to accept freight, 2169. starting promptly at time and place, 2172. COMMON CARRIERS OF PERSONS additional amount to be paid, when, 2189. 1754 I INDEX. [References are to sections.] COMMON CARRIERS OF PERSONS (continued). baggag-e or luggage, liow carried or delivered, 2183. bicycle as, 2181. carrier's lien on, 2191. bicycle as luggage or baggage, 2181. carrier of persons, obligation to carry, 2180. defined, 2181. ejectment of passengers. See tit. Ejection of Passengers. for refusal to pay fare, 2188. fare, when payable. See tit. Fare. as to when payable, 2187. not payable after ejection, 2190. liability for baggage or luggage, 2182. obligation to carry baggage or luggage. See tit. Baggage. as to generally, 2180. obligation to provide seats for passengers, 2185. obligation to provide vehicles. See tit. Vehicles. as to, 2184. passenger who has not paid fare, to pay additional rate, when, 2189. regulations for conduct of business as to, 2186. seats for passengers to be provided, 2185. COM3ION CARRIERS OP" PROPERTY liability of inland carriers, 2194. exemptions do not apply to, when, 2195. liability for delay, 2196. COMMON LAW code continuation of, 5. COMMON PROPERTY. See tits. Husband and Wife; Property. COMMUNITY PROPERTY as to generally, 164. as to what is, 687. contracts by wife in relation to, 167. disposition on divorce, 146. distribution of on death of husband, 1402. distribution of on death of wife, 1401. limitation of action as to, 164. management, control, and disposition of, 172. COMPENSATION for support of adult children by parent, 210. given by law, 3274. of appraisers of homestead, 1258. of assignee of creditors, 3471. of borrower, 1892. of depositary for hire, 1853. of employee dismissed for cause, 2002. of employee quitting for cause, 2003. 1755 INDEX. [References are to sections.] COMPENSATION (continued). of finder, 1867. of partner, none, 2413. of trustee, 2273, 2274. of voluntary depositary, 2078. J on partial failure to perform, 3392. fi on .rescission, 3408. services continued beyond two years, rate of, 1980. ( without employment, 2079. ' COMPLAINT ) to court. See tit. Court.s. j for cruelty to children or animals, 607b. COMPLETION as applied to appropriation of waters, 1417. COMPOSITION author lias property in, 980-985. COMPRESSED AIR as motive power by railroads, 465a. CONCEALMENT. See tit. Insurance. CONCESSIONS foreign corporations may transfer, 364. CONDITIONAL delivery cannot be made to be, 1056. devise or bequest. See tit. Devise and Bequest. obligation. See tit. Obligations. offer of, when valid, 1494. will may be probated, when, 1281. CONDITION OF WILL. See tit. Wills. CONDITIONAL OBLIGATION. See tit. Obligations. CONDITIONS concurrent definition of, 1437. performance of, 1439, 1498. forfeiture, considered how, 1442. impossible, are void, 1441. kinds of, 1435. performance of essential, when, 1439. precedent or subsequent. See tits. Conditions Precedent; Conditions Subsequent. as to generally, 708. restraining alienation, void, 711. restraining marriage, void, 710. subsequent. See tit. Conditions Subsequent. unlawful are void, 1441. CONDITIONS PRECEDENT effect of, 1347. in will, 1347. 1756 INDEX. [References are to sections.] CONDITIONS PRECEDENT (continued). what are, 708. when deemed performed, 1348. CONDITIONS SUnSEQ,UENT as to generally, 1438. conveyance on, 1109. in will, 1349. CONDONATION. See tit. Divorce. CONFIDENTIAL RELATIONS. See tits. Tru.st; Trustees; Wills. CONFLICT OF LAWS as affecting contracts, 1556. as affecting- personalty, 946. as affecting realty, 755. as affecting wills, 1376. assignment for benefit of creditors, 3451. injunction, 3423. marriage out of state valid, when, 63. CONFUSION OF GOODS. See tit. Aece.ssion. as to ownership of things made by, 1025-1033. CONGRESS carriers by sea governed by laws of, 2088. seamen governed by laws of, 2088. CONNIVANCE in divorce. See tit. Divorce. CONSANGUINITY collateral and direct, 1390, 1392. half-blood, inheritance by, 1394. how computed, 1388-1394. CONSENT apparent consent, when not free, 1567. communication of. See tit. Contract. as to generally, 1581. deed obtained by fraud, when, 1568. essentials of, 1565. fraud in obtaining. See tit. Fraud. mutually necessary to contract, 1580. when voidable, 1566. CONSIDERATION. See tits. Confrriet; Vnliinble CoiisldernHon. agency, 2308. as to what constitutes, 1605. burden of proof to invalidate, 1615. executed and executory, 1609. executory, 1610, 1611. failure of, rescission for, 1682. for agreement of separation between husband and wifi\ 160. good, what is, 1605. guaranty, consideration for. 2792. 1757 INDEX. [References are to sections.] CONSIDERATION (continued). illegal consideration void, 1608. impossibility of ascertaining', effect of, 1612. in contract between spouses for separation, 160. lawful only is valid, 1607. negotiable instrument must have, 3122. presumption as to, 3123. new,v<:ontract altered without, effect, 1697. proportion payable where performance prevented, 1515. return bj' minor, as disaffirmance, 35. rewards offered. See tit. Rewards. subscription. See tit. Proiio.sal. written instrument presumed to have, 1614. CONSIGNMENT vonMignor definition of, 2110. directions of to carrier, 2115. definition of consignee, 2110. delivery of, 2118-2122. freightage. See tit. Freightage. insolvency of consignee, effect of, 3077. special contract of carrier. See tit. Common Carriers of Prop- erty. stoppage in transitu. See tit. Stoppage in Transitu. CONSOLIDATION of co-operative business associations, 653i. of co-operative corporations with other corporations, 653x. CONSTITUTIONAL. LAW statute creating homestead right constitutional, 1269. CONSTRUCTION of deed. See tit. Interpretation. of devise of land, 1311. of words and phrases, 13. CONSTRUCTIVE DELIVERY What is, 1059. CONSTRUCTIVE NOTICE. See tits. Notiee; Recording Trans- fers. conveyance, filing with the recorder is, 1213. CONSTRUCTIVE TRUSTS. See tit. Uses and Trusts. CONSTRUED joint authority, how, 12. CONSUL of United States may take foreign acknowledgments, 1183. CONTEMPT in divorce proceedings. See tit. Divorce. officer taking acknowledgement may punish for, 1201. CONTINGENT ESTATES. See tit. Future Contingent Estates. 1758 INDEX. [References are to sections.] CONTINGENT INTEREST as to what constitutes, 695. not void because improbable, 697. CONTINGENT REMAINDER IN FEE as to, 772. how created, 773. on term of years, 776. CONTINUANCE of corporate existence, 287, 401. CONTINUING GUARANTY. See tit. Guaranty. CONTRACT acceptance by performance of conditions, 1584. reward, offer of. See tit. Reward. deemed complete, when, 1582. mode of communicating', 1582. must be absolute, 1585. assumption of obligation by accepting benefits, effect of, 1589. as to who may contract, 1556. idiots. See tits. Idiots; Persons of Unsound Mind. minors. See tit. Infant.s and Minors. as to power to enter into contracts, 1558. breach of, damages for, 3294. by husband and wife. See tit. Husl>aud and Wife. consent, mutuality of, 1580. as to, generally, 1580. consideration for. See tit. Consideration. as to generally, 1605. executed and executory consideration, 1609. how ascertained, 1611. illegal consideration, effect of, 1608. impossibility of ascertaining, effect of, 1612. invalidating sufficient consideration, burden of proof. 1615. lawful consideration, 1607. legal or moral obligation as a good consideration, 1606. possibility of execution on face, 1613. presumptive evidence of consideration, when. 1614. contract for benefit of a third person, may bo enforced, when, 1559. contracts creating monopolies. See tit. Monouolles. contracts in restraint of trade void, 1673. exception in favor of good will, 1674. corporate seals, how affixed, 1628. definition, 1549. duress. See tit. Duress. as to what constitutes, 1569. generallj% 1569. 1759 INDEX. [References are to sections.] CONTRACT (continued). effect of, nullity of, one alternative, 1451. essential!^ of as to generally, 1269, 1550. consent. See tit. Consent. executed and executory contracts, what are, 1609. express contract as to what is an, 1620. express or implied contracts, 1619. implied contract, what is, 1621. kinds of contracts, 1619. may be oral, when, 1622. must be in writing, when. See tit. Statute o£ Frauds. as to, generally, 1624. agreements authorizing and employing agents to sell real estate, 1624. extinction of contracts, 1682. by alteration, 1700. alteration of verbal contracts, 1697. alteration and modification of written contracts, 1698. by cancelation, 1699. by performance, 1682. by rescission, 1688. how effected, 1691. when party may rescind, 1689. when stipulations against right to rescind do not defeat, 1690. by unauthorized alteration, 1700. alteration of duplicate not to prejudice, 1701. fraud in procuring. See tit. Fraud. as to, 1571. identification of parties to contract essential, 1558. interpretation of contracts. See tit. Interpretation. as to, generally, 1635-1661. in the alternative, 1448, 1450. in writing, effect of, 1625. takes effect, when, 1626. joint and several, 1659. lender cannot modify, 1905. lien may be created by, 2884. manner of creating, 1619-1623. contract in writing takes effect, when, 1626. effect of written contract, 1625. menace. See tit. Menace. as to what constitutes, 1570. mistake. See tits. Fraud and Mistake; Mistalce. as to what constitutes, 1576. 1760 INDEX. [References are to sections.] CONTRACT (continued). mode of coiumiiiiicatlng acceptance of proposal. as to generally, 1582. when communication deemed complete, 1583. mutuality of consent, 1580. not in through fraud, enforceability, 1623. object of contract, 1595. as to requisites of object, 1596. as to what is, 1596. contract partially void, when, 1599. contract wholly void, when, 1598. impossibility of contract, what is, 1597. of exchange, form of, 1804. of minors. See tit. Minor. of persons without understanding, 38. partly written and partly printed, 1651. private seals, act abolishing applicable, 1629. provisions of code in.respect to real property, 1627. ratification of. See tit. Ratification. as to validity, 1588. revocation of proposal. See tit. Revocation. as to, generally, 1586. how made, 1587. time of performance of, 1657. to relieve directors from liability void, when, 327. transfer of waives vendor's lien, when, 3047. undue influence. See tit. Undue Influence. as to what constitutes, 1575. unlawful contracts. See tit. Unlairfiil Contracts. wagering. See tit. Unlawfnl Contracts. what is a contract, 1549. who may contract, 1556. CONTRACT FOR SERVICE limited to two years, 1980. CONTRinUTIOlV between persons bound jointly or jointly and severally. 143:: general average loss, in admiralty, 2152. insnrance cases in as to generally, 2621, 2622, 2642, 2745. where there is over-insurance, 2620. release of one joint debtor, effect on right to, 1543. surety's right to, 2848. CONTRIBUTIOIV. See tit. Suretyship. between joint obligors, 1432. general average loss, 2152. in insurance cases, 2621, 2646. release of joint debtor, effect on right to, 1543. Kerr's C. C— 56 1761 INDEX. [References are to sections.] CONTROLLER OF STATE duty, where property escheats, 1406. selection of right of way to be transmitted to, 478. CONVERSION claim and delivery. See tit. Claim and Delivery. damages for, 3336-3338. equitable, 1338. extinguishes lien, 2910. in general, 1711-1714. lien extinguished by, 2910. CONVEYANCE. See tits. Deed.s; Tran.sfers. absolute not to be conditional, 1056. agent may covenant on, 2324. agreement for covenants, 1733, 1734. effect of, 1731. specific performance of, 1741. statute of frauds as affecting, 1741., bona fide purchaser or encumbrancer, who is, 1107. by attorney in fact, 1095. cancelation of instruments in, 3412, 3414. certificate of proof of execution of, 1198. changed name, by person with, 1096. communitj'^ property, wife's consent to, 172. conclusiveness of, and parties bound, 1107. conditions precedent in, 1110. conditions subsequent in, 1109. constructive delivery, 1059. covenants agreement to give, 1733. by agents, how far binding, 2324. form of, 1734. implied, 1113. running with land, 1460-1468. who bound by, 1465. damages for breach of agreement to buy, 3307. for breach of agreement to convey, 3306. for breach of covenants, 3304. against encumbrances, 3305. date of delivery, presumption as to, 1055. deemed mortgage, though absolute in form, when, 2924. definition of, 1215. delivery constructive, 1059. date of, presumption as to, 1055. in escrow, 1057. 1762 INDEX. [References are to sections.] CONVEYANCE delivery (continued). must be absolute, 1056. necessity for, 1054. easement, passes with, 1104. escroTP delivery of deed in, 1057. executed before code, how, 1205, 1206. execution of not acknowledged, how proved, 1195. fee passes by presumption, 1105. words of inheritance unnecessary to, 1072. form of, 1092. fraudulent. See tit. Fraudulent Transfer.s. grant, includes what, 1053. heir's conveyance good, when, 1364. "heirs" and "issues," interpretation of in, 1071. heretofore made governed by then existing laws, 1206. recordation of governed by then existing laws, 1206. highway, boundary by, passes to, 1112. homestead, conveyed how, 1242. incidents of thing transferred follow to, 10S4. infant's conveyance. See tit. Minor. inheritance, words of in, not necessary, 1072. interest subsequently acquired passes to purchaser, 1106. interpretation against grantor most strongly, 1069. in general, 1066. of "heirs" and "issue," 1071. irreconcilable provisions in, 1070. of limitations, 1067. recitals construed, when, 1068. irreconcilable provisions in, interpretation of, 1070. "issue" and "heirs," interpretation of, 1071. judgment proving execution of instrument, 1203. lien of vendee, 3051. of vendor, 3036-3049. limitation in, as to, 1067. married woman's. See tit. Married AVoinen. mortgage, absolute deed transfer deemed a, when, 2924. name changed, by person with, 1096. operation of Ia>v after-acquired title passes by, 1106. conveyance by, 1091. owner for life, conveyance by, 1108. owner for years, conveyance by, 1108. power of attorney to, 1094. 1763 INDE3X. [References are to sections.] CONVEYANCE (continued). proof of execution, certificate of, 1200. proof on action for, and effect, 1204. recitals in, rseorted to, when, 1068. reconveyance, surrendering or canceling instrument not a, 1058. record as notice. See tits. Constructive Xotice; Notice, recording. See tit. Recording^. remainders, conveyance of, 1111. rents, conveyance of, 1111. requisites of, 1091. reserving power to revoke, effect of, 1229. statute of frauds, effect of on, 1091, 1624. stranger, inures to, when, 1085. subscribing witness, proof of by, 1195, 1197. title, what passes under, 1083. iiurecorded valid between parties, 1216. void as to whom, 1214. warranty covenants for, 1463. liability for, 1115. lineal and collateral, abolished, 1115. what law governs, 1205, 1206. , will, effect of on, 1302-1304. words of inheritance not necessary in, 1072. CO-OPERATION of co-operative agricultural, etc., associations with other cor- porations, 653q. CO-OPERATIVE AGRICULTURAL,, ETC., ASSOCIATIONS agents, appointment of, 653q. amendment of articles of incorporation as to generally, 653a. debts at time of, 653r. articles of incorporation amendment of, 653r. debts at time of, 653r. what to contain, 653o. by-lavFS as to what to contain, 653p. conditions of membership, 653p. membership fee, 653p. number of directors, 653p. proxies, 653p. qualifications of members, 653p. removal of directors, 6o3p. code of by-laws. See By-LaTt-s, this title. as to, what to contain, 653p. 1764 INDEX. [References are to sections.] CO-OPERATIVE AGRICULTURAL, ETC., ASSOCIATIONS (con.) conditions of membership, 653p. co-operation with other corporations, 653q. debts at time of amendment of articles of incorporation, 653r. directors number of, 653p. removal of, 653p. dissolution of, 653q. fee, membership, 653p. formation of, 653m. ineniber.sliip of as to generally, 653m. conditions of, 653p. fee, 653p. qualifications of, 653p. transfer of, 653n. number of directors, 653p. po^ver.s of association as to generally, 653m, 653q. dissolution, 653q. to appoint ag'ents, 653q. to co-operate with other corporations, 653q. to purchase property, 653q. proxies, 653p. purchase of property by, 653q. qualifications of membership, 653p. quo warranto, 653s. removal of directors, 653p. transfer of membership of, 653n. CO-OPERATIVE BUSINESS ASSOCIATIONS. See tit. C..-0|i- erative Business Coriiorations. alteration of purpose of association, 653g. articles of association, 653d. acknowledgment of, 653d. filing of. 653d. subscription and acknowledgment of, 653d. by-laws, 653e. division of profits, 653e. expulsion, 653e. fees for membership, dues, etc., 653e. majority of association necessary to adopt, 653e. manner of conducting elections, 653e. qualification and succession, 653e. recording and filing by-laws, 653e. what by-laws may provide, 653e. withdrawal, ascertainment of interest, 653e. certificate of membership, 653b. 1765 1 INDEX. [References are to sections.] CO-OPERATIVE BUSINESS ASSOCIATIONS (continued), consolidation of association, 653i. fee for filing-, 653i. filing of agreement, 653i. what agreement must state, 653i. dissolution and winding up of association, 653j. execution against the association or its members, 653f. formation and purpose of, 653b. interest" of members, 653c. members, liability of, 653c. who are eligible as members, 653c. powers of the association, 653h. profits of, division of, 653e. purpose of association, how altered, 653g. purposes of, altered how, 653g. quo warranto to inquiry into rights to do business, 653k. rights, interest, and liability of members, 653c. succession, 653h. transfer of, 653b. what corporations not affected by title, 6531. winding up of association, 653j. CO-OPERATIVE BUSINESS CORPORATIONS. See tit. Co-Op- erative Business Associutiuns. purpose for which may be formed, 653a. CO-OPERATIVE CORPORATIONS as to, how formed, 653t. agents, appointment of, 653x. articles of incorporation amendment of, 653y. what to contain, 653v. by-Ia\%'s of as to, what to contain, 653w. expulsion of members, 653w. how adopted, 653w. mentbersliip fee, 653w. to cease when, 653w. removal of directors and filling vacancies, 653w. qualification of members, 653w. consolidation with other corporations, 653x. * dissolution of, 653x. nienibersliip of as to generally, 653n. conditions and terms of, 653w. fee of, 653w. number of and qualifications of, 653w. transfer of, 653u, 653w. particular corporations, title not applicable to, 653za. 1766 INDEX. [References are to sections.] CO-OPERATIVE CORPORATIONS (continued). poTvers o£ as to generally, 653x. to consolidate with other corporations, 653x. dissolution, 653x. to hold property, 653x. to appoint agents, 653x. property, holding of, 653x. qualifications of members, 653w. quo warranto, as to, 653z. voting by as to generally, 653zb. number of votes required, 653zb. CO-OWNERS. See tits. Mines; Mining Claims. delinquent notice to, 1426o. payment by, 1426o. CORPORATE POWERS as to generally, 354. banking prohibited, 356. by-laws of. See tit. By-Laws. limitation of, 355. CORPORATE SEAL. See tit. Corporations. how affixed, 1628. CORPORATE STOCK. See tit. Stockbolders. CORPORATION NAME. See tit. Corporations. CORPORATION SOLE. See tit. Religions, Social, and Benevo- lent Corporations. CORPORATIONS. See tit. Corporate Powers. acknowledgment of articles of incorporation, 292. acts ultra vires. See tit. Ultra Vires. affidavit of subscription of stock and payment of per cent, 295. agricultural fair corporations. See tit. Agricultural F^air Cor- porations. amendments of articles of incorporation. See tit. Articles of Incorporation. amount to be subscribed to be fixed, 293. a "person," 14. articles of incorporation. See tit. Articles of Incorporation. assessments action to recover, 349. directors may levy, when, and for what, 331. jurisdiction acquired by publication of notice, 340. limitation of, 332. not invalidated, by what irregularities, 346. not to be levied upon stock in treasury, 343. not to be levied when previous unpaid, when, 333. 1767 INDEX. [References are to sections.] CORPORATIONS as!!)e!48iiieut»< (continued). notice of contents of, 338. delinquent, 337. form of, 337. publication, 339. seryice and publication of, 336. order for must contain, what, 334. proceedings to be begun anew, when, 346. sale of stock for payment of, 334-349. banking. See tit. Banking Corporations. banking expressly prohibited, 356. benefit society. See tit. Rellgrious, Social, and Benevolent Corporations. benevolent corporations. See tit. Religlon.s, Social. an«l Be- nevolent Corporations. bequests to, restriction on power to make, 1313. board of directors. See tit. Directors, Board of. boards of trade. See tit. Chambers of Commerce, Boards of Trade. bonded indebtedness, 359. creating and Increasing, proceedings for, 359. bonds, restrictions upon issue of, 359. books of stock and transfer, how kept, 378. of directors and stockholders open for inspection, 321. )">ooks to be open to inspection, 321. bridge, ferries, wharf, chute, and pier. See tit. Bridges, Ferry, \%'liarf, Chnte, and Pier Corporations. building and loan. See tits. Building and Loan Associations; Building and Land Corporations. formation of, 648a. reincorporation of existing, 648a. building corporations. See tit. Building Corporations. burned bonds of, procedure to obtain duplicates, 329. business associations. See tit. Co-operative Business Asso- ciations. business corporations. See tit. Co-operative Business Corpo- rations. by-laws. See tit. By-La«'s. capital stock amount of, to be set forth by articles, 290. increasing and diminisliing, proceedings for, 359. restrictions on, 309. withdrawal, restrictions on, 309. capital stock of banking companies, 300. dividends of, 300. 1768 i INDEX. [References are to sections.] CORPORATIONS (continued). cemetery. See tit. Cemetery Corporations. certain corporations to state further facts, 291. certificate not to issue, when, 296. certificate of. See tit. Certificate of Stock. certificate of residence to be filed, when, 1163. certificate of stock. See tit. Certificate of Stock. restoring- lost. See tit. Restoration of Lo-st Records. chamber of commerce, etc., corporations. See tit. Chamber of Commerce, Boards of Trade, etc. copy of decree to be filed with secretary of state, 300a. filing- decree of court, 300a. how perfected, 300a. chang'e of place of business, procedure on, 321a. cliute. See tit. Bridges, Ferry, Wharf, Chute, and Pier Cor- porations. classes of. See "Kinds of," tliis title, collateral attack, 358. colleg-es and seminaries. See tit. Colleges and Seminaries of Learning, consolidation of adjoining mine companies, 361. of co-operative business associations, 653i. of societies, 652, 653. complaint against, 315. notice of filing petition, 315. consolidation of adjoining- mining companies, 361. continuance in business, 358. contract to relieve directors from liability void, wlien, 327. co-operative business corporations and associations. See tit. Co-operative Corporations and Associations. copy of articles must be filed, where, 299[a] corporations to discover fires and save human life. See tit. Fire Corporations. corporations to furnish light for public use. See tit. Corpo- rations to Furnish Liglit and Heat. costs of suit for duplicate of lost certificate of stock, 328. cruelty. See tit. Societies for the Prevention of Crueliy to Cliildren and Animals. curing- defects in articles, cannot be by amendment, 362. damages for failure to file copy of articles as required, 299[a]. for false entries, 316. recovery of by purchaser of franchise at execution sale, 391. debts beyond capital stock, liability for, 309. definition of, 283. 1769 INDEX. [References are to sections.] CORPORATIONS (continued). delinquent assessment, sale of stock of unknown owner for, 365. devise to, restrictions of power to make, 1313. directors are trustees of creditors and stockholders, 400. contracts relieving from liability void, 327. inhibitions on, 309. majority a quorum, 308. majority must be citizens of state, 305. must perform duties, 308. number of, 290, 305. organization of board of, 308. personal liability of, 309. limitation of actions on, 309. removal from office, proceeding for, 310. vacancies, how filled, 305. who may be, 305. election of. See "Elections," this title, notice of election of, 302. of new on removal of old, 310. time of, 302. dissolution of, 399-403. by amendment of law, 404. judgment cannot be rendered against after, 404. dividends to be declared from surplus, 309. distribution of land and water, 309. penalty for violation of section, 309. dock, 528-531. elections. See "directors," this title, adjournment of, 314. by-laws may prescribe rules for, 303. complaints respecting, and proceedings, 315. cumulative voting at, 307. eligibility of voters, 312. lunatic's stock, how represented at, 313. may be postponed, 314. minor's stock, how represented at, 313. not held at appointed time, procedure, 315. votes avoided, how, 312. who may vote, 312. electric, 632. examination of affairs. See tit. Examination of Corporations. examination of books of. See tit. Miuiu;!; Coriioratlons. execution sale corporation retains power, 391. purchaser at may recover penalties, 390. 1770 INDEX. [References are to sections.] CORPORATIONS execution sale (continued). purcliaser at to transact business of, 389. where to be held, 393. execution of articles of incorporation, 292. existence of corporation not affetced by code, 288. existence of, how continued under code, 287. extension and dissolution of, 399-403. false certificate of stock, 316. false entries, 316. fee of recorder for recording, 1163. ferry, 528-531. filing' of articles of incorporation, erroneous, corrected how, 363[a]. fire, corporations to discover, etc. See tit. Fire Corporations. fire, marine, and title insurance corporations. See tit. In- surance Corporations. foreign corporations. See tit. Foreign Corporations, formed complete, when, 296. for any purpose, 286. how, 285. franchise for constructing road for bicycles and liorseless vehicles, etc., 524. of, may be sold under execution, 388-393. redemption of from execution sale, 494. fraternal. Se^ tit. Religious, Social, and Benevolent Corpora- tions. societies exempt from insurance laws, 453k-453p. friendly societies, limitation of amount of land that may be held by, 596. gas. See tit. Corporations to Fnrnlsta Liiglit and Heat. homestead corporations. See tit. Homesteads. good will. See tit. Good Will. increasing and diminishing capital stock, methods of, 359. consent and no dissent, 359. consolidation of corporations, 359. infant's stock, how represented at elections, 313. inspection, books to be open to, 321. insurance corporations. See tit. Insurance Corporations. irrigation. See tit. Water and Canal Corporations. as to, 552. journal of proceedings, how to be kept, 377. justice of the peace may order meeting of, when, 311. kinds of as to generally, 284. public and private, 284. 1771 INDEX. [References are to sections.] CORPORATIONS (continued). land and building corporations. See tit. Land and Building Corporations. legislature may amend corporate law, 404. life, health, accident and annuity insurance corporations. See tit. Insurance Cori)pration.s. limitation of actions in favor of foreign corporations, 406. to enforce directors' personal liability, 309. to recover stock sold for delinquent assessments, 347. limitation of powers of, 355. lost or destroyed certificate of stock. .See tit. Certificate of Stock. lunatic's stock, how represented at elections, 313. majority of stockholders must be represented at elections, 312. married -woman dividends may be paid to, 325. transfer of stock by, 325. may acquire real property, and how much, 360. may transfer foreign concessions, 364. mechanics' institutes, etc. See tit. Clianilter.s of Commerce, etc. meeting adjournment of, 312. application to justice of peace to call, 311. by consent valid, 317. by-laws may provide for, 303. justice of peace may call, w^hen, 311. special, when and how called, 320. where to be held, 319. minimum capital to be required to be paid in before organi- zation, 290a. mining corporations. See tit. 3Iiniugr Corporations. misnomer in instrument does not invalidate contract, 357. mutual benefit and life associations. See tit. Insurance Cor- porations. mutual life, health, and accident insurance corporations. S^e tit. Insurance Corporations. name of instrument creating corporations, 289. no provision in by-laws, regular and special meetings, how called, 320. nonprofit co-operative agricultural, etc., associations. See tit. Co-operative Agricultural, etc., Associations. non-resident, transfer of stock by, 326. notice false, liability of officers for, 316. of hearing of application for restoration of lost records, certificates, etc., 365. to be published in what newspapers, 303. 1772 INDEX. [References are to sections.] CORPORATIONS (continued). notice o£ assessment contents of, 338. delinquent, 337. form of, 335. publication of, 339. service of, 336. notice of directors' and stockholders' meeting, 320. notice of election of directors, 302. notice of meeting to create or increase bonded indebtedness, 359. to increase or diminish capital stock, 359. to remove directors, 310. ' notice of proposed change of principal place of business, 321a. notice of sale of stock to pay assessment, how publication of proved, 348. number of directors may be increased or diminished, 290. oath of officer to subscribe to stock and payment of ten per cent, 295. officers. See tit. Officers of Corporations. false certificates, notices, or reports by, 316. other than for profit, 312 [a]. penalties, recovery of by purchaser of franchise at execu- tion sale, 390. pier. See tit. Bridges, Ferry, Wliarf. Cliute, and Pier Corpo- rations. pioneer, amount of land to be held by, 596. place of business, proceedings for change of, 321a. postponement of election, 314. powers of. See tit. Corporate Powers. powers of and business exercised by board of directors, 305. prerequisite to filing articles of incorporation for profit, 294. prerequisites to filing articles, 293. private corporations, how formed, 285. private corporations may be organized, 286. proceedings at meetings, 318. profit, associations formed for purposes other than, 593-605. public and private distinguished, 284. publication of notice, in what newspapers, 303. purposes for which may be formed, 286. quorum of board, 305. of stockholders, by-laws may provide for, 303. quo warranto against, 358. quo warranto, proceedings thereon regarding elections, 315. railroads. See tit. Railroad Corporations. real property. See tits. Hiiilding and L-oan Corporations; Cemetery Corporation.s, et| [References are to sections.] ^ DAMAGES (continued). for breach of covenant. See tit. Covenant. . for breach of promise of marriage, 3319. '^ for breach of warranty of quality of personalty, 3313. for special purposes, 3314. of warranty of title of, 3312. for carrier's delay. See tit. Carrier. breach of obligation to deliver, 3316. breach of obligation to receive, 3315. , for conversion, 3336, 3337. t for detaining or overcharging by wagon road corporation, 518. for dishonor of foreign bill, 3234, 3238. for employing materials of another, 1030. for failure by tenant to quit on notice, treble rent, 3344. for false imprisonment. See tit. False Imprisonment. for future injuries, 3283. for injuries in duel, 3347, 3348. for injury to timber, 3346. for injury to trees, 3346. for killing sheep by dogs, 3341. for libelous publications. See tit. liibel. for lienor's conversion, 3338. for malicious prosecution. See tit. Malicious Prosecution. for master's breach of indenture. See tit. Master and Ap- prentice. for negligence in setting fire, 3346a. for refusal to carry, 482. for seduction, 3339. for treble rent against tenant, when, 3344. for trustees holding over, 3335. for violation of rights of citizens in places of public accom- modation or amusement, 52. for wrongful occupancy of realty, 3334. for wrongs generally, 3333. for wrongs. See tit. Damages for Wrongs. forfeiture, relief in cases of, 3122. holding over, damages for wilful, 336. in action other than contract, 3288. interest as, 3287-3290. injuries resulting or probable after suit brought, 3283. interest, acceptance of principal waives, 3290. interest as damages, as to, 3287. limit of rate of compensation, 3289. limitation of, 3358. limitation of damages, 3358. liquidated, 1670. 1780 < INDEX. [References are to sections.] DAMAGES (continued). liquidated sum for breach of contract, to pay, 3302. market value as, 3353. may be recovered by whom, 3281. measure of. See tit. Measure of Damages. as to, 3300-3319. must be certain, 3301. nominal, 3360. penal damages, as to, 3344. failure to quit after notice, 3344. for injuries in duel, 3347. in firing woods, 3346a. penal damages, for injuries to trees, etc., 3346. wilfully holding over, 3345. property of peculiar value, 3355. public places, for denying access to, 54. reasonable, must be, 3359. relief against in general, 2274, 2275. sheep-killing dogs, 3341. specific relief. See tit. Specific Relief. tenant, when liable for treble rent, 3345. to be reasonable, 3359. value how estimated in favor of buyer, 3354. how estimated in favor of seller, 3353. of property of peculiar, 3355. of thing in action, 3356. who entitled to in general, 3281. wrong-doer liable in uniting materials, 1033. DAMAGING TELEGRAPH OR TELEPHOE PROPERTY. See tit. Telegraph and Telephone Companies. DATE deed, delivery of, presumption as to, 1054. in negotiable instruments necessary, 3091. nominal in negotiable instrument, 3094. DAYS business, what are, 9. counted in computing time, what are, 10. fraction of, 14. holidays, what are, 7. of grace. See tit. Days of Grace. DAYS OF GRACE not allowed on bill of exchange, 3181. DEATH distribution of common property on death of husband, 1402. on death of wife, 1401. 1781 INDEX. [References are to sections.] DEATH (continued). gift in view of. See tit. Gift. marriage dissolved by, 90. notice of dishonor in ignorance of, 3146. of devisee before testator, 1310, 1343, 1344. of lieir before devisor, 1399. of husband and wife, effect on homestead, 1265. of insurer, effect on insurance, 2556. of joint guardian, 252. of maker of instrument bearing nominal date, 3094. of minor, representative may disaffirm contract, 35. of parent leaving children unprovided for, 205. of seamen, who entitled to wages, 2062. without heirs, etc., definition, 1071. DEBT. See tits. Creditor; Debtor. agreement to answer for, etc., of another, 1624. encumbrance included in word "debt," 1114. extinguished by payment, 1500. homestead liable for, when, 1241. husband not liable for antenuptial of wife, 170. legacy charged with, how, 1360, 1361. liability of beneficiaries for testator's, 1377. officers of corporation liable for, 316. partner liquidating may collect, 2461. partner may require application of property to, 2405. pledgee cannot sell evidences of, 3006. separate property of -wife liable for her own debts, 171. not liable for husband's debts, 171. special partner's contribution, liability for, 2501. stockholder liable for, when, 322. successor liable for decedent's, 1408. testator's property, how disposed of in payment of his debts, 1359. DEBTOR. See tits. Assignment for Benefit of Creditors; Cred- itor; Frandulent Transfer. application of general performance by, 1479. contracts of, valid, when, 3431. creditor can avoid act of, when, 3441. definition of, 3429. effect of directions as to performance, 1476. fraudulent misrepresentations by, to pledgee, 2999. insolvent, what is, 3450. joint, release of one, effect, 131. offer of performance by or for, effect, 1488. performance by joint, 1474. 1782 INDEX. [References are to sections.] DEBTOR performance (continued), must be by or for, 1473. preferences by, 3432. receipt, may require on payment, 1499. relative rights of creditors, 3433. release of, by creditors, effect, 1541. rights of, when performance prevented, 1512-1515. DEBTOR AND CREDITOR assignment for benefit of creditor. See tit. AMNiiemiiient for Benefit of Creditors. creditor's right must be judicially ascertained, 3441. creditors, relative rights of, 3433. debtors' contracts are valid, when, 3431. payments in preference, 3432. fraud, how determined, 3442. fraudulent transfer. See tit. Fraudulent 'I'ranNfer. transfer presumed to be fraudulent, when, 3440. insolvency, what is, 3450. preference. See subd. "payments in preference," tliis title. relative rights of creditors, 3433. who is a creditor, 3430. who is a debtor, 3429. DECEIT essential elements of fraud, 1572. fraudulent, liability for, 1709. in general, 1709-1711. renders contract voidable, 156C. upon the public, 1711. what Is, 1710. when actionable, 1709, 1710. DECK. See tit. SIiIiih nud Slii|M>iiiK- freight not to be stowed on, 2117. DECLARATION. See tits. HoniOMteiul, n<-<-liiriili<>ii ..f: W IIIh. DECLARATION OF HOMESTE.VD as to generally, 1263. by other than head of the family, IJijij. declaration mu.^it he recorded, 1208. declaration must contain what, 1267. effect of filing declaration for record, 1269. mode of selection, 1266. contents of what, ^263. declaration must be recorded, 1264. tenure by which homestead held, 1265. DECREE MSI. See tit. Divorce. DEED. See tit. Q,ultclnlni DeedH. Interpretation against grantor. 1069. 1783 i INDEX, [References are to sections.] DEED (continued). interpretation of irreconcilable provisions, 1070. interpretation of, recitals resorted to, when, 1068. presumption as to time of delivery, 1055. quitclaim. See tit. Q,uitclniiu Deeds. DEBD ABSOLUTE in fact a mortgage; must be recorded as mortgage, 1172. DE FACTO CORPORATIONS. See tit. CuriioriitiunN. DEFaSiATIO.X. See tits. Libel; Slauder. as to what is, 44. DEFAULT. See tit. Divorce. Decree of divoi'ce not allowed on, 130. divorce not granted by, 130. DEFEASANCE deed absolute made on is mortgage, 2925. ^ DEFECT .i, certificate of acknowledgment, action to remedy, 1201. v' depositor must indemnify depository for, 1833. lender must indemnify borrower for, 1835. warranty by manufacturer against latent, 1769. will, in description in, 141. DEFLECTIVE ARTICLES OP MANUFACTURE. See tit. NesII- Kcnee. DEFECTIVE MACHINERY FURNISHED BY MASTER. See tits. Master and Servant; Ne^Iisenoe. DEFINITION. Sec tit. ^Vord.s and Phrases. accord, 1521. adultery, 93. agency, 2295. bill of exchange, 3171. bottomry, 3294. charter party, 1959. collusion, 114. condition concurrent, 1437. condition precedent, 1436. condition subsequent, 1438. condonation, 115. connivance, 112. consignee, 2110. consignor, 2110. contract, 1549. corporation, 283. create debts, 579. depose, 14. desertion, 95. detriment, 3282. „ duress, 1569. 1784 INDEX. [References are to sections.] DEFINITION (continued), encumbrance, 1114. exchange, 1804. extreme cruelty, 94. factor, 2026. fee, 762. freig-ht, 2110. freightage, 2110. general average, 2148. gift, 1146. good will, 992. grant, 1053. guaranty, 2787. guardian, 236. habitual intemperance, 106. head of family, 1261. hiring, 1925. holographic will, 1277. impossibility, 1597. income, 748. indemnity, 2772. insurance, 2527. interest, 1915. jettison, 2148. joint interest, 683. letter of credit, 2858. libel, 45. lien, 2872. loan, 1884. month, 14. mortgage, 2920. negotiable instruments, 3087. novation, 1530. nuisance, 3479. obligation, 1427. olographic will, 1277. partnership, 2395. personal property, 14. pledge, 2986. promissory note, 3244. property, 14, 654. real property, 14. recrimination, 122. respondentia, 3036. reversion, 768. satisfaction, 1523. section, 14. 1785 INDEX. [References are to sections.] DEFINITION (continued). ship, 960. slander, 46. succession, 1383. surety, 2831. testify, 14. transfer, 1039. undue influence, 1575. ward, 237. warranty, 1763. wilful neglect, 105. DEFINITION OF OLOGRAPHIC [HOLOGRAPHIC] WILLS. See tit. Wills. DEFINITION OF TERMS. See tit. W^ords and Phrases. as to generally, 14. "month," 14. "personal property," 14. "property," 14. "real property," 14. "section," 14. "will," 14. DEGREE of kindred, how computed, 1389. DELAY deemed deviation, when, 2694. how excused, 1511. in performance of obligation, damages, 1492. in presentment of bill of exchange, effect, 3186. how excused, 3219. in presentment of check, effect, 3255. in presentment of notice of dishonor, when excused, 3156. in protest, how excused, 3230. insurance, notice of loss to be given without, 2633, 2637. of carriers for hire, 2104. of creditor does not discharge guarantor, 2825. reasonable grounds for rebuts presumption, 126. DELEGATION OF AGENCY. See tit. Agent. DELEGATION OF POWER. See tit. Agent. by minor, 33. DELINQUENT ASSESSMENT action to recover stock sold for, 347. sale of stock for, 341. DELINQUENT NOTICE of assessment of stock. See tit. Of As.sessnient of Stock. DELIVERY constructive, 1059. contract of, in writing, provisions applicable, 1626. 1786 INDEX. [References are to sections.] DELIVERY (continued), in escrow, 1057. of deposit by joint owners, 1827. demand necessary, 1823. on demand, 1822. where, 1824. of freight to holder of bill of lading-, 2130. to whom, 2118. where, 2119. of gift necessary, 1147. of goods sold buyer's directions, 1757. expense of, 1755. notice of election as to mode of, 1756. of goods sold, when to be made, 1753-1758. where, 1754. of grant necessary, 1054. of pledge necessary, 2988. presumption as to time of, 1055. thing bought, payment for on, 1778. time of creation of interest deemed to be on, 749. to grantee, necessarily absent, 1056. DELIVERY. See tits. Gift; Sale; Transfer. as to, 1754. DELIVERY OF STOCK. See tit. Certificates of Stock. entry in books of corporation of stock transf.iTfl. .'^■■■' tit. Certificates of Stock, Transfer of. DELUSION. See tit. Wills (In.r hire compensation of, 1853. degree of care required of, 1852. finder is not, 1864. insurable interest of. See tit. Insurable lutercHt. as to, generally, 2550. lien for storage, 1856. negligence of, limitation of liability for, 1840. notice by to owner to be given, when, 1826. of animals, duty of toward, 1834. opening deposit, obligation of as to, 1835. pledge for reward, when Is a, 3000. sale by of storage property, 1857. of thing in danger of perishing, 1837. seller of personalty is until delivery, 1749. thing wrongfully detained, how depositary exonoratod, 1S27. 1789 INDEX. [References are to sections.] DEPOSITARY (continued). use of deposit, obligation as to, 1835. liability for wrongful, 1836. DEPOTS. See tit. Stations and Depots. desce:vdants of a person, who are, 1386. DESCENT. See tit. Succession. DESCRIPTION agreement to compensate for errors in, 1690. error of in will, how rectified, 1340. DESERTION as to what constitutes, 95. how manifested, 96. DESTRUCTION of will how proved, 1293. is a revocation of, 1292. of written contract, effect of, 1699. DETENTION of person or property avoids contract, when, 1569. of property, damages for, 3335. DEVELOPMENT WORK on mining claim, effect of neglect to perform, 1426s. DEVIATION. See tit. Common Carriers. DEVIATION FROM ROUTE of carrier of property, 2117. DEVISE. See tit. Will. of land, how construed, 1311. DEVISES AND BEQUESTS. See tit. \Vills. advancement and ademptions, 1350. cannot be devested, 1342. conditional, 1345. condition precedent, what is, 1346. effect of, 1347. when deemed performed, 1348. death of devisee or legatee, effect of, 1343. interest of remainderman not affected by, 1344. legacies, nature and designation of, 1357. annuities, 1357. demonstrative legacies, 1357. general legacy, 1357. residuary legacy, 1357. specific legacies, 1357. vest, when, 1341. DILIGENCE. See tits. Appropriation of W^aters; Care. DIRECTION buyer's, as to pleas of method of delivery, 1757. 1790 INDEX. [References are to sections.] DIRECTION (continued). carrier to follow whose, 2115. employee to follow, 1979. factor to follow, 2027. trustee to follow, 2258. DIRECTORS. See tit. Corporations. of co-operative agricultural, etc., association, 653p. number of, 653p. removal of, 653p. of insurance corporations liable for loss, when, 418. DIRECTORS, BOARD OF. See tit. Corporation.s. cumulative voting, 307. election of directors, how conducted, 307. exercises power of corporation, 305. org-anization of board, 308. quorum, 305. quorum of directors necessary, 305. regular meetings, how called, 320. removal from office of directors, 310. DISAFFIRMANCE of infant's contract for necessaries. See tit. Necessaries. cannot be, when, 36. DISAFFIRMANCE OF CONTRACTS by minor, 34. deed of infant not void. See tit. Deeds of Infants. when minor may disaffirm, 35. DISSOLUTION OF CORPORATION. See tit. Corporations. impairing obligation of contracts, 405. of co-operative agricultural, etc., association, 653p. of co-operative corporations, 653x. DISSOLUTION OF MARRIAGE. See tit. Divorce. effect of, 90. DISTRIBUTION effect of advances on, 1395-1399. of capital stock on dissolution of corporation, 312[a]. of community property. See tit. Community Property. of property of intestate, 1384, 1386. DITCHES, FLUMES, ETC. liability of joint owners respecting, 842. neglect to pay portion of expenses, action to recover, 843. DIVERSION. See tit. Appropriation. point of from ditch, 1412. DIVIDEND. See tit. Corporations. of banking corporations, 300. of life insurance corporations, how made, 456. payment to married women, 325. 1791 INDEX. [References are to sections.] DIVORCE. See tit. Marriage, how Dissolved. actions for divorce, wiien commenced, 83. plaintiff must be resident, 128. presumptions do not apply, 129. proof of actual residence required, 129. adultery, 92, 93. alimony. See tits. Alimony; Allovrance. allowance for support withheld, when, 142. annulment, 82-86. appeal, revision on of order disposing of property, 148. by default not g'ranted, 130. causes for, 82. adultery, 92, 93. as to, generally, 92. desertion. See desertion, this title, as to generally, 95. extreme cruelty, 94. habitual intemperance for one year, 107. children. See tit. Parent and Child. community and separate property subject to support of, 143. of annulled marriage, 84. collusion, what constitutes, 114. presumption of from lapse of time, 125, 126. community property disposed of, how, 146. subject to support, etc., of children, 143. condonation, as a defense, 123. avoided by concealment, 120. cures desertion, 102. ' defined, 115. implies what, 117. manifested, how, 96. presumption of from lapse of time, 125, 126. refusal of offer of is desertion, when, 100. requisite to, 116. revoked, how, 121. when can be made, 119. connivance manifested, how, 113. presumed from lapse of time, 125, 126. cruelty desertion induced by, effect of, 98. extreme, what amounts to, 94. custody of children on, order for, 138. decree of by default not granted, 130. restores parties to unmarried state, 90. 1792 INDEX. [References are to sections.] DIVORCE (continued). default decree by not granted, 130. of defendant, proofs to be made, 129. defense to action for, 111. denied on sliowing wliat, 111, 124. collusion, 114. condonation, 115. can only be made, wlien, 119. concealment of facts in certain cases makes void, 120. evidence of, 118. how revoked, 121. implies what, 116. requisites of, 116. when bar to defense, 123. connivance, 112. corrupt consent, 113. lapse of time establishes certain presumptions, 125. presumption may be rebutted, 126. limitation of time, 127. recrimination, 122. denied on what grounds, 111. desertion absence becomes desertion, when, 100. consent to separation voidable, 101. cured, how, 102. defined, 95. failure or refusal of wife to live in home of husband, 103, 104. how cured, 102. how manifested, 96. in case of cruelty where one party leaves the other, 98. in case of cruelty, is committed by whom, 98. in case of fraud or strategem, is committed by whom, 97. induced by cruelty, 98. induced by fraud or strategem, 97. refusal of reconciliation amounts to, when, 101. refusal to abide by husband's selection of homestead amounts to, 103. selection of home is desertion, when, 103. if place is unfit, and wife refuses to conform, desertion by husband, 104. separation becomes, when, 100. by consent is not, 99. what amounts to, 96. who deserts, 98. Kerr's C. C. — 57 1793 INDEX. [References are to sections.] DIVORCE (continued). disposition of community property, 146. duty of court to dispose of, 147. of homestead on, 146. order of disposition, 147. revision of on appeal, 148. domicile fixed by husband, 103. refusal of wife to abide by is desertion, 103. presumptions none, in proof of, 129. unfit, husband's selection amounts to desertion, 105. effect of divorce, 91. effect of judgment of nullity, 86. expense of action for, 137. extreme cruelty, 94. grounds for. See "causes for," this title, grounds for denying. 111. habitual intemperance, what is, 106. for one year, 107. homestead, how disposed of on, 146. judgment of final judgment after one year, 132. interlocutory judgment, 131. lapse of time, what presumptions establislied by, 125, 126. legitimacy of Issue on divorce for liusband's adultery, 145. on divorce for wife's adultery, 145. limitation of actions for, 125, 127. may be decreed wliere divorce denied, 136. orders respecting custody of children, 138. presumptions arising from lapse of time, 125, 126. resorted to in executing provisions for maintenance and alimony, 141. recrimination condonation as, 123. defined, 122. relief where separation is denied, 136. residence actual, proof of necessary, 129. length of plaintiff's residence, 128. presumptions do not apply to, 129. none in proof of, 130. security for maintenance and alimony, 140. separation amounts to desertion, when, 100. not desertion, when, 99. 1794 INDEX. [Refei'ences are to sections.] DIVORCE (continued). support of wife and cliildren on divorce or separation granted wife, 139. wilful neglect, must exist for one year, 107. wilful neglect, what is, 1C5. DOGS. See tit. AniinaLs. killing sheep, liability for, 3341. DOMICILE. See tit. Divorce. guardian to select, 248. husband may select, 103, 155. unfit, wife not bound by, 104. in divorce, actual must be proven, 129. requisites for, 128. infant's, 214. unfit selected by husband amounts to desertion, 104. DOMINANT TENEMENT. See tit. Ea.senients. DOUBLE INSURANCE. See tit. Insurniioo. DOUBTFUL ^VORDS in contract, 1654. in will, 1323. DOWER not allowed, 173. DRUNKENNESS. See tits. Contracts; Divorce: AVIlls. as grounds for divorce, 107. DUEL damages for injuries inflicted in, 3347. liability to pay debts and maintain injured party. 3348. DUPLICATE of contract, alteration of does not prejxidico. 1701. of will, is revocation, 1295. DURESS. See tit. Contract. as cause for annulment of marriage, S2. as to what constitutes, 1569. contract under voidable, 1575, 1708. ' in what consists, 1569. rescission because of, 1689. will procured or revoked by, 1272. DUTY. See tit. Obligations. to inquire into tlie treatment of minor apprentice, 270. EARNINGS of minor child, as to, generally, 169. illegitimate and unmarried, 200. legitimate and unmarried, 197. of wife, as to, generally, 168, 169. are her separate property, 169, 170. not liable for Imsband's debts, 168. when living separate and apart from husband, 169. 1795 INDEX. [References are to sections.] EARNINGS OP WIFE. See tit. Earnings. not liable for husband's debts, 168. when living separate and apart from her husband, 169. EASEMENT. See tits. Easements and Sei-vitudes; Liieense. apportionment of, 807. as to what pass with property, 1104. attaohed to land, 801. duininant tenement action by owner of, 809. definition of, 809. enumeration for, 801, 802. extent of, 806. extinguishment, how made, 811. grantable, by whom, 804. held, can be, by whom, 805. irrigation, 552. lateral and subjacent support, 832. not attached to land, 801. partition of, apportionment of, 807. servient tenement action by owner of, 810. as to what is, 803. transfer of property carries, 1104. way. See tit. Public Higli^vays. what passes by conveyance of property, 1104. who cannot hold, 805. EASEMENTS AND SERVITUDES action by owner and occupant of dominant tenement, 809. by owner of servient tenement, 810. apportioning easements, 807. dominant tenement, what is, 803. extent of servitude, 806. how extinguished, 811. owner of future estate, right as to easements, 808. servient tenement, what is, 803. servitude may be granted, by whom, 804. may be held, by whom, 805. servitudes which attach to the land, 801. servitudes which do not attach to land, 802. EJECTION FOR NON-PAYMENT OP FARE. See tit. Ejection of Passengers. as to, and when wrongful, 2188. EJECTION OP PASSENGERS for non-payment of fare, 2188. for refusal to pay fare or surrender ticket, 487. ELECTION corporate. See tit. Corporations. 1796 INDEX. [References are to sections.] ELECTION (continued), day, a holiday, 7. grant to street railway near time of, unlawful, 497. notice of as to delivery of chattel, 1756. ELECTRIC CORPOUATIOIV franchise for, proceedings, 497. ELECTRICITY railroad may use as motive power, 465a. ELEVATED RAILWAYS franchise for, how procured, 492. supervisors may grant franchise, 492. EMAMCIPATION of children, as to, 211. EMINENT DOMAIN crossing's bj' railroads, condemnation for, 472. in g'eneral, 1001. EMPLOYEE. See tit. Master and Servant. by special request, 1976. for reward, duties of, 1978. gratuitous, as to duties of, 1975. under written power of attorney, 1977. EMPLOYMENT. See tits. Ma.ster and Servant; Serviee Williout Employment. as to what is, 1965. confidential employment, obligations of, 1992. contract for services limited to two years, 1980. degree of skill required of employee, 1983. duty of employee for his own benefit, 1979. for reward, 1978. to account, 1986. duty of gratuitous employee, 1975. duty of railroad companies. See tit. llallrond.s. employee inu.st obey employer, 1981. must use what skill he has, 1984. not bound to deliver witliout demand, 19S7. resf)onsible for negligence, 1990. responsible for substitute, 1989. to conform to usage, 1982. to give preference to employer, 1988. employer must indemnify emphiyee, when, 1969. to indemnify for his own negligence, 1971. fellow-servants. See tit. Fello^-ServnntM. particular empIoymentN agent. See tit. Apfent. factors. See tit. Factors. 1797 INDEX. [References are to sections.] EMPLOYMENT particular eiiipioyiiients (continued). master and servant. See tit. Master and Servant. mates and seamen. See tit. Mate.s and Seamen. sliipmasters. See tit. Shipmasters. ship's manager. See tit. Sliip'.s Manager. surviving employee, riglits of, 1991. termination o£ employment as to how terminated, 1997. by death of employer, 1996. by employee, for fault, 2000. by employer, for fault, 2001. compensation of employee dismissed for cause, 2002. of employee leaving for cause, 2003. continuance of service in certain cases, 1998. terminated at will, 1999. things acquired by employee by virtue of his employment be- long to his employer, 1985. ENCUMBRANCE damages for breach of covenant against, measure of, 3305. grant, as revocation in favor of, when, 1229. how far conclusive, as to, 1107. imposed upon devised property, 1301. includes what, 1114. instrument when not void against, 1228. when void against, 1228. lien not valid against, when, 3048. mortgage of real property not enforced against subsequent purchaser, when, 3394. resulting trust does not prejudice, 856. rights of under devise not impaired by conveyance, 1364. transfers void against, 3440. ENEMY, PUBLIC. See tit. War. cannot be insured against, 2540. carrier not liable for damages, etc., by, 2194. innkeeper, not liable for damages, etc., done by, 1859. ' prevention of performance by, effect, 1511. ENFORCEMENT OP TRUSTS. See tit. Uses and Trusts. ENTICING AWAY APPRENTICE. See tit. Master and Appren- tice. liability therefor, 275. ENTIRETIES interest by the, 683, 686. tenancy by, between spouses, 161. EQUIPMENTS of ships. See tit. Ships and Shipping. EQUITABLE REHEE. See tit. Specific Performance. 1798 INDEX. [References are to sections.] EQ1TITABI.E REMEDIES. See tit. InJtinctlonM. EQ,UITY. See tit. Homesteads. ESCHEAT intestate's property does, when, 1386. proceedings by attorney-general, 1405. property escheated is subject to charges, 1407. takes place to state, when, 1406. ESCROW as to delivery in, 1057. definition of, 1057. ESTATE. See tits. EstatcN in Real Proiicrly; Vhom niiil Trust!. expectant, qualities of, 699. fixing- time of enjoyment, 707. interest in real estate, 701. classes of interest, 702. mere possibility of an interest, 700. notice not necessary before action, when, 793. of tenancy at will. See tit. Tenancy at AVIII, of trustee to express trust, 863. re-entry, when and how to be made, 791. subsequently acquired passes by will, when, 1312. summary proceedings in certain cases, 792. termination of, as to, generally, 789. time of creation of, 749. what future interests are recognized, 703. ESTATE FOR LIFE limitation of successive, 774. ESTATE FOR MFE OF THIRD PERSON wlien a. freehold, 766. ESTATES IX REAIi PROI'EUTV. See tit. IXnt.N. estates in general, 761-781. kinds of estates, 761. estates at will, 761. estates for life, 761. estates for life of a third inisnii, w i. n .i i estates for years, 761. estates in fee simple. Si'o tit. For simple, as to generally, 762. estates in remainder. S^e tit. Rcinnlmlcrji. estates of freehold, 766. estates of inheritance, 761. future estates, what are. 767. limitation on successlvp estati-s for lir'\ 771. reversions. See tit. Ilevor.xlonn nml lli'mnlnilorn. servitudes, 801-Sll. suspended ownership. 770. suspension by trust, 771. termination of estates, 789-793. 1799 INDEX. [References are to sections.] ESTATE OF DECEDENT. See tits. Executors and Administra- tors; Succession; Wills. beneficiaries' property liable for obligations, when, 1377. chargeable with debts, when, 1359. order of resort to property for payment of, 1359. ESTRAY finder of property, as to duty of in general, 1864-1872. EV^IDEXCE. See tit. Witnea.»ies. certificate as of restoration of lunatic, presumption from as to capac- ity, 40. of shipmaster, to exertions of seamen to save vessel, 2058. certified copies of articles of incorporation as evidence, 297. condonation of, .118. divorce, not granted on uncorroborated, 130. in probate of will. See tit. Wills. insurance, of loss, 2634. of condonation in action for divorce, 118. how revoked, 121. of execution of instruments not acknowledged, 1195. of handwriting, how proved, 57. of invalid or insufficient consideration, 1615. of marriage, how proved, 57. oral stipulations, etc., superseded by written instrument, 1624. record certified copies of, as evidence, 1207. inventory of wife's property as, 166. of location of mining claim copies of as evidence, 1426q. to be received in evidence, 1426q. register of partnership names, as, 2471. subscribing witness, liow instrument i)roved by, 1196-1199. EVIDENCE OF CONSENT. See tit. Marriage. EXAMINATION OF CORPORATION by whom to be made, 382. how made, 383. EXCAVATION time within which appropriator of waters may commence on public land, 1422. EXCHANGE bill of. See tits. Bill of Excliaug:e; Deposit for Exciiauge; Loan for Exchange; Negotiable Instruments. form of contract, 1805. of money, 1807. rights and obligations of parties, 1806. what is, 1804. 1800 INDEX. [References are to sections.] EXCHANGE, LOAN FOR. See tit. Loan for Exchange. EXCLUSION AND INCLUSION. See tit. Computation o£ Time. EXECUTION against liomestead. See tit. Homestead. co-operative association, against, 653f. disaffirmance of infant's contract, 35. executors and administrators. See tits. Estate of Decedent; Wills. exemption from of policy of life, etc., insurance, 453k. exemption of estates at law from, 766. franchise of corporation inay be sold under, 388. homestead not subject to, when, 1240. subject to, when, 1241. lien of officers on, 3057. mortgaged personalty, issuing against, 2968-2971. of apprenticeship of minor. See tit. Ma.ster and Apprentice.. redemption of franchises from, 392. EXECUTOR AND ADMINISTRATOR. See tits. Estate of De- cedent; Will. according to the tenor, 1371. expense of administration, order for payment of, 1359. foreign, satisfaction of mortgage by, 2941. not to act until qualified, 1373. power to appoint, void, when, 1372. power to appoint invalid, 1372. qualified, not to act until, 1373. wages of deceased seamen, 2062. EXECUTORY AGREEMENT consideration for, 1610. ascertained, how, 1611. need not be stated, 1610. covenants when required by, 1733. defined, 1661. for sale of real property, 1731. grounds on condition precedent, 1110. instrument, implied warranty of sale, 1774. of marriage to be in writing, when, 1624. transfers title, when, 1141. EXEMPLARY DAMAGES. See tit. Damages. for infringement of trade-mark. See tit. Trade-MarkM and Signs. EXEMPTION. See tit. Assignment for Ueneflt of Credltor.s. homestead. See tit. Homestead Exemption. mortgage, from operation of, 2965. of mutual life insurance company, 453k. of policy of life, etc., insurance, 4o3k. property exempt does not pass by assignment for benefit of creditors, 3470. 1801 INDEX. [References are to sections.] EXERCISE OF VESTED POWER as to, 860. EXISTENCE OF CHILD BEFORE BIRTH. See tit. Unborn Child. EXISTING LAWS provision similar to, liow construed, 5. EXONERATION. See tit. Guardian and Ward; Securitysbip. of caxrier, on delivery of bill of lading, 2131. of finder, from liability, when, 1865. of gratuitous pledge-holder, 2995. of guarantors, 2819. of inkeepers, 1860. of lender, from liability, 1893. of owner, from claim of finder, 1868. of partner, on renunciation of future rights, 2417. of shipmaster, on abandonment of ship, 2040. of surety, 2824, 2845. EXPECTANCIES are insurable interests, 2549. EXPECTANT ESTATES quality of, 699. EXPENSES of action for divorce, 137. EXPERT TESTIMONY. See tit. Wills. EXTENSION OP TI3IE. See tit. Negotiable Instruments. for sale of delinquent stock, 345. notice of, 345. of existence of corporation, 401. EXTINCTION OF LIEN by conversion, 2910. EXTINCTION OP OBLIGATIONS ability and willingness essential to, 1495. application of general performance, 1479. by accord and satisfaction. See tit. Accord aud Satisfaction. by acts of God. See tit. Acts of God. by conditional ofEer, not, 1494. by novation. See tit. Novation. by offer made in good faith, 1493. by offer of partial performance, not, 1486. by offer of performance, 1485. requisites of valid tender. See tit. Tender. by part performance, when, 1524. by performance, 1473. effect of directions by creditors, 1476. partial performance, effect of, 1477. payment, what is, 1478. performance by one of joint creditors, 1475. performance by one of several joint debtors, 1474. 1802 INDEX. [References are to sections.] EXTINCTION OF OBLIGATIONS ^continued), by prevention of performance, 1511. by release. See tit. Relea.se. by satisfaction. See tit. Accord and Satisfaction. by whom to be made, 1487. compensation after delay in performance, 1500. creditor's retention of thing which he refuses to accept, ef- fect of, 1505. custody of thing- offered, 1503. effect of offer upon accessories of obligation, 1504. effect of preventing performance, 1512. condition precedent. See tit. Condition Precedent, effect of refusal to accept performance before offer, 1515. extinction of pecuniary obligations by deposit, 1500. objections to offer to be made, when, 1501. pecuniary obligations, extinction by deposit, 1500. performance of condition precedent. See tit. Condition Prece- dent. as to, 1498. prevention of performance. See tit. Prevention of Perform- ance. production of thing to be delivered not necessary, 1496. ratable portion of consideration not, when, 1514. thing offered to be kept separate, 1497. title of thing offered, 1502. to whom to be made, 1488. when debtor induced not to make it by act of creditor, 1511. when and where offer to be made, 1489, 1490. when prevented or delayed by act of creditor, 1511. when prevented or delayed by irresistible, etc., cause. 1511. where obligation does not fix time, 1491. written receipts may be required on, 1499. EXTI3VGITISHMENT of easements and servitudes, 811. EXTREME CRUELTY. See tit. Divorce. what is, 94. FACT actual fraud is a question of, 1574. concealment of makes condonation void, when, 120. fraudulent intent, is a question of, 3442. mistake as to, what is, 1577. as to foreign law, 1579. FACTORS. See tits. Agent; Employment: lla«tcr nnrt Servant. actual authority of, 2368. barter by, 2368. consignments to. See tit. Con.<«; Religious, Social, and Benevolent Coriior.it Iohn. as insurance associations, 452a, 453. mutual life, etc., insurance corporations, 437-452. FRATERNAL SOCIETIES as insurance associations, 452a, 453. exempt from insurance laws, 451. FRAUD. See tit. Wills. actual or constructive, 1571. actual fraud is what, 1572. constructive fraud as to what constitutes, 1573. agent no authority to defraud principal, 2306. as affecting right to specific performance, 3391. as ground for annulment of marriage, 82. by-bidding, as a species of, 1797. constructive, as to, 1573. constructive or actual, 1571. 1809 INDEX. [References are to sections.] FRAUD (continued). contract exempting one from his own, void, 1668. obtained by, 1568, 1569, 1572, 1573. prevented from being put in writing througli, enforceable, when, 1623. deceit as an element of, 1709-1714. desertion induced by, 97. disregarding erroneous parts of written instrument, 1640. on oral contract required to be in writing, 1623. enforcement against fraudulent party, 1623. exemplary damages in case of, 3294. in apprenticeship, ground for annulling, 275. in marine insurance. See tit. Marine Insurance. valuation under, 2736. in insurance, as to, 2629. instrument procured through avoided by judgment creditor only, when, 3441. deemed obtained through, when, 1568, 1572, 1573. power to revoke, when, 1229. voidable, 1566. when void against creditor, 3439. when void against purchaser, 1227. insurance omission to commimicate avoids, 2306, 2310. return of premium for, 2619. insurer, liable for loss through, when, 2629. intent, a question of fact, 3442. interest as damages in case of, 3288. marriage contract procured through, 58. ground for annulling, 82. pledge, value misrepresented, 2999. rescission for, 1689. separation produced by, desertion, 97. specific performance, rights of affected by, 3391. trust arising from, 2224. trustee guilty of, in what cases, 2234. will procured or revoked by, effect of, 1272. FRAUD AND MISTAKE. See tits. Fraud; Mistake. FRAUDS, STATUTE OF. See tit. Statute of Frauds. as to, generally, 1623-1627. FRAUDULENT CONVEYANCE. See tit. Fraudulent Transfers. FRAUDULENT INSTRUMENTS. See tit. Fraudulent Transfers. FRAUDULENT TRANSFERS. See tit. Unlawful Transfer. assignment for creditors. See tit. Assignment for Benefit of Creditors. when void, 3457. avoidance of, by creditors, when, 3441. 1810 INDEX. [References are to sections.] FRAUDULENT TRANSFERS (continued), bottomry, delivery is, when, 3440. chattel mortg-ag-e, 3440. as a, 2957-2959. delivery is, Vi^hen, 3440. transfer without valid, when, 3442. creditor's right to be judicially ascertained, 3441. creditor may avoid, when, 3441. debtor, contract of valid, when, 3431. definition of, 3439. delivery, necessary of personal property, 3440. fraud, a question of fact for jury, 3442. judicial proceedings, is, when, 3439. lien is, when, 3440. mutual fraud, effect of, 1228. of realty, what is and what is not, 1227, 1228. presumption as to, 1135. as to in absence of delivery, 3440. purchaser having- notice, rights of, 1227. question of fraud, how determined, 3442. references, valid, when, 3422. reimbursement of purchaser, 3440. reservation of interest in assignment for creditors, effect of, 3457. of power of revocation, effect of, 1229. respondentia, delivery is, when, 3440. ship or cargo, delivery not necessary, 3440. special partnership, conveyance by is, when, 2496. void, when, 3439. voluntary transfer is, when, 3442. valid, when, 3442. what transfers are fraudulent, 3439. what transfers presumed fraudulent, 3440. wines, delivery of not necessary, 3440. FREEHOLD ESTATES estate for life of a third person is, when, 766. what are, 765. FREIGHT. See tit. Carriers of Property. delivery of, as to, generally, 2118-2122. FREIGHTAGE apportionment of by contract, 2140. according to distance, 2142. no objection on partial delivery, 2141. carrier's Hen for, 2144. consignee liable for, when, 2138. consignor liable for, when, 2137. 1811 INDEX. [References are to sections.] FREIGHTAGE (continued). definition of, 2661. on natural increase of freight, 2139. freight carried further than agreed, 2143. when to be paid, 2136. FRIENDLY, ETC., SOCIETIES. See tit. Religious, Social, and Benevolent Corporations. amownt of land that may be held by, 596. as insurance associations, 452a, 453. limitation of amount of land, 596. FRUIT-TREES. See tit. Trees. FURTHER ASSURANCE. See tit. Covenants. • covenant for, 1733. FUTURE CONTINGENT ESTATES how created, 773. FUTURE CROP. See tit. Chattel Mortgage. FUTURE ESTATE contingent, how created, 773. rights of owner of easements, 808. what is, 767. FUTURE INTEREST as to what is, 690. certain future interest not to be void, 697. classes of, 693. contingent interests, 695. how defeated, 740. lien on, 2883. perishable property, how protected, 947. taking effect on happening of contingency, 742. two or more future interests, 696. vested interests, 694. void when suspends power of alienation, 716. what are recognized, 703. what is, 690. when defeated, 739. when not defeated, 741. GAME as to right to take. 801, 802. GAMING insurance of void, 2558. GAS CORPORATIONS. See tit. Corporations to Furnish Light and Heat. application for gas to use, 629. deposit as condition for furnishing, 630. Inspection of meters agent of corporation may inspect, 631. refusing, liability for, 631. 1812 INDEX. [References are to sections.] GAS CORPORATIONS (continued). refusal to furnish gas, penalty for, 629-630. to pay for gas, shutting off, 630a. right to inspect, 631. GENDER of words in code, 14. GENERAL, AVERAGE. See tit. Marine Insurance. adjusted how, 2152. application of rules, 2155. as to, 2744. definition of, 2148. goods stowed on deck of ship, 2154. in general, 2148-2155. insurance, free from. 2711. jettison. See tit. Jettison. loss, how adjusted, 2152. how borne, 2151. manager may adjust, 2388. marine insurance, liable for. See tit. Marine Insurance. as to, generally, 2707, 2743. shipmaster may adjust, when, 2388. things stowed on deck, 2154. values, how ascertained, 2153. GIFT IN VIEW OF DEATH. See tit. Gifts. GIFTS. See tit. Wills. ademption of legacy, when, 1357. causa mortis defined, 1149. effect of will on, 1152. is legacy, when, 1153. presumed, 1150. revocation of, 1152. community property of, 172. definition of, 1146. delivery essential, 1147. effect of will upon gift, 1152. fraud in, what is, 1149. how made, 1147. in view of death. See "Causa Mortis," this title, made how, 1147. not revocable, when, 1148. presumed to be in view of death, when, 1150. revocation as to, generally, 1151. bona fide purchaser, effect on, 1151. causa mortis gift, 1151. 1813 INDEX. [References are to sections.] GIFTS revocation (continued), how made, 1147. in view of death, 1150. not revocable, when, 1148. subscribing- witness, may be made to, 1282, 1283. to subscribing witness to will, 1282. treated as leg-acy, when, 1153. when presumed to be in view of death, 1150. GIRLS. See tit. FemaleM. GOOD FAITH advance made in, by agent, indemnification, 2344. agent bound to act in, when, 2343. offer of performance must be made in, 1493. partner highest required of, 2411. when bound by act not made in, 2431. principal bound to person acting in, 2334. trustee must act in highest, 2228. what constitutes, 15. GOOD WILL is property, 655, 993. of business, 992. partner cannot dispose of, 2430. sale of in restraint of trade, 1673, 1676. subject of ownership, 655. warranty on sale of, 1776. GOOD W^ILL AND NAME is property, 993. GOOD WILL OF BUSINESS transfer of, 993. GRACE. See tit. Days of Grace. GRANT. See tits. Conveyance; Transfer. mortgage not a, 1054. GRANT OF REAL PROPERTY form of, 1092. GRANTOR interest remaining in grantor of express trust, 866. name of changed, how to execute, 1096. of trust property, title of, 865. GREATER contnins less. 3536. GROWING CROPS. See tit. Mortgage of Personal Property. GUARANTY acceptance of, 2795. alteration of agreement, 2821. consideration necessary to create, 2792. 1814 II INDEX. [References are to sections.] GUARANTY (continued), collectibility, as to, 2800. conditional, as to liability on, 2808. construction of, how made, 2806. continuing guaranty, 2814. as to what is, 2814. revocation of, 2815. deemed original undertaking, when, 2792. definition of, 2787. delay of creditor does not discharge guarantor, when, 2823. disability of principal, effect on, 2810. discharge of prinicpal by operation of law does not discharge guarantor, 2825. enumeration of original, 2794. exoneration of guarantors, 2819. what dealings will exonerate, 2819. void promise does not alter or repair remedy, when, 2820. factor del credere, 2794. guarantor indemnified not exonerated, 2824. liability of does not exceed that of principal, 2809. illegal contract, no liability on, 2810. incomplete contract, effect of, 2799. indemnified guarantor, alteration of contract, effect, 2824. indorser has rights of guarantor, 3120. interpretation of, 2799. liability upon such guaranty, 2802. of complete contract, 2794. recovery upon such guaranty, 2801. that obligation is good or collectible, 2800. knowledge of principal not necessary, 2788. letter of credit as a, 2862, 2863. may be continuing, 2864. liability of guarantors, generally, 2807. construction of, 2806. upon guaranty of conditional obligation, 2808. upon guaranty of payment of performance, 2807. must be in writing, 2793. of the guarantor cannot exceed that of principal, 2809. guarantor not liable on illegal contract, 2810. original enumeration of, 2794. when deemed an, 2794. part performance, 2822. principal's contract void, effect on, 2810. disability, no effect on guaranty, 2810. 1815 INDEX. [References are to sections.] GUARANTY (continued). release of as to, 1543. by altering principal's obligation, 2819. by impairing remedies against principal, 2819. delay of creditor does not work, when, 2823. discharge of principal by law does not affect a, 2825. effect of by performance as a, 2822. void promise does not work a, 2820. reduced by partial performance, 2822. revocation of continuing, 2815. rescission of agreement, 2821. surety's rights those of guarantor, 2844. time when liability accrues on, 2807. unconditional, as to, when is, 2806. what is, 2787. writing, must be in, when, 2793. need not be in, when, 2794. GUARDIAN AND WARD ad litem guardian, 42. appointment by court, 243. appointment by will, 241. apprenticing ward, 265. confidential relation of guardian and ward, 250. custody of ward's person, rules for awarding, 246. damages for holding over, 3335. death of joint guardian, 252. definition of, 236. of general guardian, 239. discharge of guardian of minor, 257. when entitled to, 257. duties of guardians of the person, 248. duty of guardian of the estate, 249. general guardian, what, 239. guardian ad litem, 42. under direction of court, 251. appointed by parent, how superseded, 254. by will or deed, 241. death of joint, 252. defined, 236. discharge, entitled to, when, 257. dissolved, by what, 256. general, defined, 239. rules for appointing, 246. of estate, 242. of insane persons. See tit. Insane Persons. 1816 INDEX. [References are to sections.] GUARDIAN AND WARD guardian (continued). parental authority ceases on appointment of, 204. removal of, grounds for, 253. special and general, 238. special, what is, 240. under direction of court, 251. what, 236. guardian ad litem, 42. under direction of court, 251. guardianship, dissolved by what, 256. joint guardian as to, 252. death of, 252. jurisdiction, 245. kinds of guardians, 238. parental authority ceases on appointment of guardian, 204. power of guardian appointed by court, 247. relation confidential, 250. release of guardian by ward, 256. removal of guardian, 253. rules for awarding custody, 246. special guardian, what, 240. special or general, 238. stockholder, guardian as, 322. superseded,, how guardian is, 254. suspension of power of guardian, 255. testamentary guardian, 241. Tvard definition of, 237. may own stock in what corporations, 561. release by, 256. GUEST. See tit. Innlteepers. HABITUAL INTEMPERANCE. See tit. Divorce. divorce granted for, when, 92, 107. HALF-BLOOD relatives of, as to, 1394. HANDWRITING evidence of must prove what, 1199. of subscribing witness may be proved, liow, 1198. HEAD OF FAMILY. See tit. Homestead. defined, 1261. husband as, 156. HEALTH INSURANCE CORPORATIONS. See til. MiiOinl Mfo, Healtii, and Accident Innurnnce Corporntlon.H. HEIR. See tits. Succes-sion: WordM and I*bra«e«. conveyance of good, unless will proved within four years, 1364. 1817 INDEX. [References are to sections.] HEIR (continued). interpretation of, 1071, 1329. legitimacy of, who may dispute, 195. of minor, may disaffirm contract, 35. of tenant for life take as purchasers, when, 779. word "heirs" not necessary to pass fee to devisee, 1329. HIGHWAY. See tit. Wagon Road Corporation.s. conveyance bounded by, passes wliat, 1112. owner's title presumed to extend to center of, 831. railroad crossing, to acquire land, how, 472. see tit. Public Highivays. teleg'raph and telephone companies may use, 536. water company, not to obstruct, 551. HIGHWAYS AND PUBLIC ROADS no tolls to be charged on, 515. HIRING. See tits. Hiring; of Per.sonal Property; Hiring of Real Property. apportionment of hire, 1935. as to what is, 1925. care required of hirer, 1928. charter party definition of, 1959. master may enter into, 2376. definition of, 1925. degree of care required of hirer, 1928. expenses extraordinary, 1957. ordinary, 1956. who must bear, 1956, 1957. hirer may terminate hiring, 1932. hiring terminates, when, 1933. injuries to be repaired by hirer, 1929. letter obligations of, 1955. to put thing in fit condition, 1955. lodgings for indefinite period, 1944. particular use, 1930. possession of thing hired, 1927. products of thing hired, 1926. quiet enjoj'ment, 1955. quiet possession, 1927. real property. See tits. Hiring of Real Property; Landlord and Tenant. repairs, letter to make, 1955. return of thing hired, 1957. place of return, 1958. ships, hiring of, 1959. 1818 INDEX. [References are to sections.] HIRING (continued). terminated by death, etc., of eitlier party, 1934. by destruction, 1933. by letter, 1931. when, 1933. terminating hiring by letter, 1931. thing lent for a particular use, 1930. HIRING OF PERSONAL PROPERTY. See tits. Hiring; Hiring of Real Property. charter party, what is, 1959. extraordinary expenses, 1957. obligations of letter, 1955. ordinary expenses, 1956. return of thing hired, 1958. HIRING OF REAL PROPERTY. See tit. Hiring. attornment. See tit. Attornment. to stranger, 1948. dwelling to be made fit for its purpose by lessor, 1941. fixtures. See tit. Fixture.s, fraud. See tit. Fraud. lessee may make repairs, when, 1942. lessor to make dwelling fit f-or its purpose, 1941. letting parts of room forbidden, when, 1950. notice to quit, 3344. rent is payable, when, 1947. of lodgings for indefinite term, 1944. renewal of lease by continued possession, 1945. tenant must deliver notice served, when, 1949. term of not limited or fixed, 1943. HOLDING OVER damages for wilful, 3335, 3345. HOLIDAYS certain acts not permitted on, 11. enumeration of, 7. exclusion and inclusion in computation time. See tit. Com- putation of Time. falling on Sunday, 10. performance on following day, 11. what are within meaning of code, 7. HOLOGRAPHIC. See tits. Olographic Will; AVills. HOME to be selected by husband, 103. unfit, abandonment of wife by liusband, when, 104. HOMESTEAD. See tit. Homestead Corporations. abandoned, how, 1243. 1819 INDEX. [References are to sections.] HOMESTEAD (continued). abandonmeiit declaration of, 1243. effectual from what time, 1244. acknowledgment on conveyance or encumbrance of home- stead, 1242. alienation of lioniesitead of insane persons, 1269a. notice of application for order, 1269b. petition for, 1269a. when order may be made and effect of, 1269c. appraisement of and division of, 1251. application for, how made, 1246. filing petition for, 1247. hearing, time and place to be fixed for, 1248. service of petition and order to show cause, 1248. wlien may be had, 1245. appraisers of appointment of, 1249. compensation of, 1258. duties of, 1251. oath of, 1250. report of, 1252. proceedings on, 1252-1260. setting off homestead, 1253. as to what consists of, 1237. community property may be selected, 1238. complete, when, 1265, 1269. consists of what, 1237. conveyance of, how made, 1242. costs of proceedings to subject to debts, 1259. death of spouse, descends to whom, 1265. debts for what liable, 1241. liability of for, as to, 1265. declaration of. See tit. Declaration of Homestead. as to contents of, 1263. abandonment, 1243, 1244. recording, 1264, 1268. divorce, disposition of on, 146. encumbered, how, 1242. execution against homestead, 1245. application for, how made, 1246. application of proceeds of sale, 1256. appointment of appraisers, 1249. appraisers to be sworn, 1250. 1820 I INDEX. [References are to sections.] HOMESTEAD execution (continued). compensation of appraisers, 1258. costs, how paid and collected, 1259. determining value and divisibility, 1251. exemption from, 1240, 1241. exemption of proceeds of sale, 1257. money arising from sale equal to homestead exemption protected, 1257. notice of hearing and service of, 1248. order directing sale, when, 1254. petition for, where filed, 1247. proceedings on, 1245. report of appraisers as contents of, 1252. setting out homestead exemption, 1253. what bid may be received, 1255. when not subject to, 1240. when subject to, 1241. exempt from forced sale, 1240. execution sale of, 1241. from what homestead may be selected, 1238, 1239. "head of family." See tit. Head of Family. definition of term, 1261. may select, 1262. mode of selection, 1262. liability of, in general, 1265. liens on, for what liable, 1241. luuatie.s, of, proeeedings to enciiinlier »»r soil as to generally, 1269a. notice of application for order, 1269b. petition for sale or mortgage, 1269a. when order may be made for, and effect of, 1269c. mortgage of, 1242. for what liable, 1241. other persons, selection of by, 1266. recording declaration, 1264, 1268. recording selection, 1262. sale of. See "execution," this title. bid which may be received on, 1255. disposition of proceedings on, 1256. exemption of proceedings of, when, 1257. on execution, when, 1241. what bid may be received, 1255. when may be directed, 1254. selected from what property, 1238. selection acknowledgment of, 1266. 1821 INDEX. [References are to sections.] HOMESTEAD t^election (continued), by other persons, 1266. from community property. See tit. Community Property. from what property, 1238. from wife's property, consent necessary, 1239. mode of, 1262. separate property may he, 1238. tenure by, when held, 1265. title, perfected, when, 1265. value of homestead exemption, 1260. presumption as to value not indulged, 1260. what is, 1237. what may be selected, 1238. ; what not, 1239. ' when complete, 1265. j who may select a homestead, 1260. \ HOMESTEAD CORPORATIOIVS advertisement and sale of delinquent and forfeited shares, 559. annual report to be published, 565. publication to be made where, 566. by-laws must specify time for and amount of payment of instalments, 558. to be furnished to member on demand, 558. corporation terminated, when and how, 563. delinquent shares, advertisement and sale of, 559. dividends on termination, paid when, 563. division of property among shareholders, when, 563. forfeit for speculating in or selling lands exceeding what amount, 562. penalty for violation, 562. |! forfeited shares, advertisement and sale of, 559. ,! married women may own stock in, 561. may borrow and loan funds, how and for what time, 560. I minor children, wards, and married women may own stock, 561. payment of premiums, 564. penalty for failure to pay instalments, 558. premiums, payment of, 564. stock of, who may own, 561. time of corporate existence, 557. wards may own stock in, 561. HOMESTEAD EXEMPTION setting off, 1253, 1254. HORSE degree of care required of by hirer, 1928. HORSELESS VEHICLES franchise to construct road for, 524. 1822 INDEX. [References are to sections.] HORTICULTURAL, ASSOCIATIONS. See tit. Co-operative Agrrl- cultiiral, etc., As.sociations. HOTEL. See tit. Innkeeper.s. HUMANE CORPORATIONS. See tit. Societies for the Preven- tion of Cruelty to Cliildren and Animals. HUSBAND. See tit. Husband and Wife. inlierits from wife, 1400. succeeds, wlien. See tits. Comnmnity Property; Husband and Wife; Succession. to support, when, 176. HUSBAND AND WIFE. See tit. Married Women. abduction of spouse, 49. children. See tit. Parent and Child. community property. See tit. Community Property. gift by husband, 172. includes what, 164. power of husband over, 172. testamentary disposition of by spouses, 172. when not liable for wife's debts, 167. contracts bet'ween and others, capacity to make, 158. by husband, 158. by wife, 158. not impaired by their legal relations, 159. of marriage settlement, how executed, 178. minors may make, 181. to be acknowledged and recorded, 179. effect of recording, 180. of separation, 159, 160. respecting community property, 167. courtesy and dower. See tits. Courtesy; Dower. custody of children. See tit. Children. dividends, on stock, payable to married woman, 325. domicile husband may fix, 103. selecting unfit amounts to desertion, 104. dower. See tit. Dovrer. dwelling, neither spouse can be excluded from, 157. earnings of wife not liable for husband's debts, 168. when living separate and apart, 169. enticement of wife, 49. head of family, husband is, 156. homestead. Se tit. Homestead. homestead corporation, wife may liold stock in. See tit. Homestead Corporation, husband may make contracts, 158. 1823 INDEX. [References are to sections.] HUSBAND AND WIFE husband (continued). property of, not liable for wife's debts, when, 170. rights and liabilities of in relation to stepchildren, 209. rights of as head of family, 156. separate property of, includes what, 163. wjfe liable for support of, when, 176. inheritance by. See tit. Succession. inventory of separate property of wife. See tit. Separate Property of "Wife. filing of inventory, 166. joint tenancy between, 161. legitimacy of issue. See tits. Bastards; LegitimacT'. niarriag^e settlement contracts by minor, 181. effect of recording, 180. how executed, 179. to be acknowledged and recorded, 179. married woman. See tit. Married Women. mutual obligations of, 155. property interests of are separate, 157. property of, how held, -161. property rights of, in general, 177. rig^Iit of Iiusband as head of family, 156. may select home, and wife must acquiesce, 103, 104. rights of husband and wife governed by, what, 177. savings and loan stock may be held by wife, 575. separate property. of husband. See tit. Separate Property of Husband. of wife. See tit. Separate Property of Wife. liable for antenuptial debts, 170. separation consideration for, 160. contract of between, 159, 160. settlement. See "marriage settlement contracts," this title, stepchildren, husband's duty toward, 209. stock, married woman may transfer, 325. support of husband, wife liable for, when, 176. of wife, 174. when separated from her husband, 175. tenants in common, 161. wife may make contracts, when, 158. to support husband, when, 176. tvife's earnings her separate property, when, 169. not liable for husband's debts, 168. 1824 INDEX. [References are to sections.] HUSBAND AND WIFE (continued). wife's estate. See tit. Separate Property. wliat included in, 162. wife's property liable for her debts, 171. not liable for husband's debts, 171. wife's separate property, what included in, 162. HUSBAXD'S DEBTS earnings of wife not liable for, 168. HYDRAULIC MINING as to generally, 1424, 1425. definition of, 1425. when may be carried on, 1424. HYPOTHECATION of property by wagon-road corporation, 522. IDENTIFICATION of contracting parties, 1558. IDIOTS. See tits. Insanity; Personn of Unnonnd Mind. IDLE ACT law does not require, 3532. ILLEGAL CONTRACTS. See tit. Specific Perforiiinnce. ILLEGITIMATE CHILD. See tits. Bastard; Legitimation. adoption of, 230. custody and control of, 200. succession of. See tit. Succession. IMPLIED COVENANTS as to, 1113. what embraces, 1114. IMPOSSIBLE OR UNLAWFUL CONDITIONS. See tit. Condi- tions. are void, 1441. IMPOSSIBILITY ascertaining consideration of, 1612. ascertaining object of contract of, 1595. condition void because of. 1441. defined, 1597. law does not require, 3531. of performance avoid contract, 159S. I M POTENCY a.s ground of aiinulmont of marriage. S2. IMPROBABILITY of contingoncy, future interest, 697. I.XC.VPACITY. See tits. Insane Persons: l'«T«nin«i >tt I nnle Instruments; Promis- sory Note. 1826 INDEX. [References are to sections.] / INDEMNITY (continued). rules for interpretation of agreement of indemnity, 2778. several, as to, 2776. surety, person indemnifying- is, when, 2779. to several parties, 2776. unlawful act, against, 2773, 2774. wrongful act, against, 2773, 2774. IIXDENTURE. See tits. Apprentice; Master and A|M>rcii(i<-t'. INDICTMENT for nuisance, 3491, 3492. INDORSEMENT. See tits. Bills; Negrntiahle lu.struiiioiitN; Prom- issory Notes. agreement to indorse, 3109. apprenticeship, of, 266. bill of lading, 2127. consideration, effect of want of, 3122. definition of, 3108. effect of want of consideration, 3122. general indorsement, 3112. how made special, 3113. implied warranties of indorser, 3116. indorsee in due course, who is, 3123. rights of, 3124. indorsee privy to contract, 3120. indorsement without recourse, 3118. effect of, 3119. indorser liable to payee, when, 3117. marriage certificate, of, 73. may be made on separate paper, when, 3110. means of indorsement, 3111. of non-negotiable instrument. See tit. \«'«:o(lnl»It' Insfrii- inents. of stock. See tit. Certificate of Stock. rights of indorsers in due course, 3124. cannot destroy negotiability, 3115. stock, necessary to transfer, 324. surveyor-general's, on plat of right of w:iy, 4 7S. INEVITABLE ACCIDENT. See tit. Rules of NavlKndon. INFANT AND INFANCY, See tit. Minor. abandonment of, 246. abduction of, 49. action by, guardian must conduct, 42. agency, cannot give, 33. apprenticing. See tit. Mrnster niul \|ii>i<-iHl«'o. as to who are, 25. building and loan shares may be owned and held by, 643. children who may be arrested and brought before court, etc., 607g. 1827 INDEX. [References are to sections.] INFANT AND INFANCY (continued), contract, competency to, 1557. rights of, 34. validity of, 34. delegation of power by, 34. disafRrmance of contracts, 35. by personal representatives of, 35. cannot disafRrm for necessaries, 36. limitations on, 37. return of consideration on, 35. en ventre. See tits. Posthumous Child; Unborn Infant. as to rights of, 29. exemplary damages against, 41. guardian must conduct action by, 42. head of family, as a, 1261. homestead stock may be owned and held by, 561. land and building shares may be owned by, 643. marriage of, 57. annulment of, 82. condition restraining, 710. m.arriage settlement by, may be made, 181. necessaries, contract for by, not to be disaffirmed, 36. period of minority, how computed, 26. personalty not in possession, contract as to, 33. posthumous child, property rights of, 698. real property of, contracts by respecting, 33. savings and loan stock may be owned by, 576. stock owned by, how represented at corporate elections, 313. torts of, liability for, 41. unborn child, as to rights of, 29. who are, 25. I]\FORMATION. See tit. Nuisance. as to for nuisance, 3491, 3493. INFRINGEMENT, of trade-mark. See tit. Trade-Marks and Signs. INHERITANCE. See tit. Succession. injury done to, remedy for, 826. of husband and wife from each other, 1400. words of not necessary to pass fee, 1072. INJUNCTION as to generally, 3368. allowed, in what cases, 3366, 3422. not allowed, in what cases, 3423. allowed, when, 3422. court of another state, proceedings in, not stayed, 3423. federal court, proceedings in, not restrained, 3423. final or provisional, 3420, 3421. 1828 INDEX. [References are to sections.] INJUNCTION (continued). forfeiture, 3369. grounds for granting-, 3422. how granted, 3420. legislative act of municipal corporation, not, 3423. multiplicity of suits restrained by, 3422. not allowed, when, 3423. office, not granted respecting, when, 3423. penal law, 3369. penalty, 3369. provisional injunction, as to, 3421. regulated by code, 3421. provisional or final, 3420. statute, enforcement of not restrained by, 3423. trust, in cases in relation to, 3422. when allowed, 3422. when not allowed, 3423. INJURY. See tits. DaninK'<'!^: Employer iiud Eiiiployoo; ^IhmIof and Servant; Negligence. contract for exemption from, 1668. inflicted in duel. See tit. Duel. obligation to abstain from, 1708. right to defend against, 50. right to protection from, 43. threat of, renders contract void, when, 1569, 1570. INN. See tit. InnkeeperM. INNKEEPERS as to liability of, 1859. how exempted from liability, 1860. lien for charges on baggage, 1861. sale of unclaimed baggage, 1871. to post rates of charges, 1871. unclaimed baggage, liow disposed of, 1871. INNUENDO. See tit. Libel. INSANE DELUSIONS. See tit. Wills. INSANE PERSONS. See tit. PersoiiM of I iisoinnl >Ilii.l. agency terminated by incapacity of, 2355. as to sale or mortgage of homestead of, 1269a, 1269c. contract, competency to make, 1558. employment terminated by incapacity of, 1996, 1997. guardian of, 1763. homestead of, alienation or encumbrance of, 1269a. 1269c. liability for torts, 40. marriage of, annulment, 82. necessaries of, liability for, 38. powers of, after office found, 40. proposal to contract revoked by Insanity, 1587. 1S29 INDEX. [References are to sections.] INSANE PERSONS (continued). rescission of contract of, 39. restoration, certificate of, evidence of legal capacity, 40. stock of, how represented at corporate election, 313. torts of, liability for, 41. trustee, 2282. INSOLVENCY. See tits. AssisniHent for Benefit of Creditors; Fraudulent Trausferts; Stoppage in Transitu. INSTRUMENT cancelation of, in general, 3412, 3414. judgment proving, 1203. proof of, action for, and effect of judgment, 1204. execution of, when not acknowledged, 1195. INSULT right to protection from, 43. INSURABLE INTEREST. See tit. Insurance. as to what is, 2546. carrier has, 2548. change of interest or succession, 2552. cotenants, transfer between, effect of, 2557. death of insurer, 2556. depositary has, 2548. exception in case of several subjects in one policy, 2555. expectancy, 2549. factor has, 2367. in life, assignment to one without, effect of, 2764. in what may consist, 2547. insurance without interest illegal, 2551. interest for life, 2763. interest insured, must exist, 2552. interest of carrier or depositary, 2548. loss, transfer after, effect of, 2554. measure of interest in property, 2550. mere expectancy, 2549. transfer, after loss, 2554. effect of, 2553. transfer between cotenants, effect of, 2557. void insurance stipulations, 2558. when must exist, 2552. INSURANCE. See tits. Insurable Interest; Insurance Companies. accident insurance. See tit. Insurance Corporation. insurance by, form of policy, 2587. assignment of life insurance policy, effect of, 2764. assignment of thing insured to mortgagee, effect, 2541. new contract between insurer and assignee, 2542. carrier has insurable interest, 2548. certificate of loss dispensed with, when, 2637. 1830 I INDEX. [References are to sections.] INSURANCE (continued). change of interest after loss, 2554. between partners or joint owners, 2557. by death of insured, 2556. in one of several things, 2555. in thing insured, 2554, 2557. commissioner. See tit. Insurance Commissioner. concealment and representations, 2561. application of provisions of statute, 2582. effect of concealment, 2562. fraudulent warranty, 2569. interest of insured. See tit. Insurable Interest. as to, 2568. materiality of representation, 2581. materiality, test of, 2565. matters each is bound to know, 2566. matters of opinion, 2570. matters which need not be communicated, 2564. opinions, matters of, 2570. waiver of communication, 2567. what may be insured, 2531. what must be disclosed, 2563. contribution in case of double insurance, 2642. in case of over-insurance, 2620. proportionate contribution, 2622. definition of, 2527. disclosed, facts which must be, 2563. facts which need not be, 2564. double insurance, as to, 2641. contribution, in case of, 2642. definition of, 2641. events that may be insured against, 2531. examination of premises by insured, and value fixed, 2757. excepted perils, 2628. exoneration of insurer, 2629. factor may insure, 2368. lire corporations to discover, etc., 453a, 453b. double insurance, contribution, 2642. examination of premises and fixing value, 2757. insurance. See tit. Fire In.suranoc. measure of indemnity, 2756. partial loss, 2757. property which may be insured, 426. valued policy, 2757. 1831 INDEX. [References are to sections.] INSURANCE (continued). fire and marine insurance, 428. fire companies. See tit. Insurance Companies. fraternal societies exempt from laws of, 451, 453p. fraud in, 2629. fraudulent omission to communicate facts, 2569. fraudulent warranty, 2569. guaranty insurance, 2772-2778. increase of risk, acts not affecting policy, 2754. alterations which affect on, 2753. alterations which do not affect on, 2754. indemnity insurance, 2527. insurable interest. See tit. Insurable Interest. insurance of lottery or prize unauthorized, 2532. insured, who is, 2539. who may be, 2540. insurer, exoneration of, 2629. who is, 2539. who may be, 2540. interest covered by policy, 2568. of insured, necessity of conamunicating, 2568. joint owners, transfer of interest between, 2557. kinds of, 2533. lapsing of policies, prohibited, when, 453m. life and health. See tit. Life and Health Insurance. loss, 2626, 2627. certificate dispensed with, when, 2637. excepted perils, 2628. incurred in rescue from peril, 2627. negligence and fraud, 2629. notice of, 2633. perils of insurance, proximate and remote, 2626. preliminary proofs of, 2634. waiver of defects in notice, etc., 2635. waiver of delay, 2636. lottery not insurable, 2532. marine insurance. See tit. Marine Insurance. negligence, 2629. over-insurance, as to, 2620. parties to contract of insurance, 2538. designation of parties, 2538. who may be insured, 2540. who may insure, 2539. perils, remote and proximate, 2626. policy. See tit. Insurance Policy. premium, 2616. earned, when, 2616. 1832 INDEX. [References are to sections.] INSURANCE preiniuin Ccontinued). over-insurance by several companies, 2620. contribution, 2621. proportion of contribution, 2622. return of, 2617. for fraud, 2619. when not allowed, 2618. reinsurance, as to what is, 2646. disclosures require, 2647. original insured has no interest, 2646. presumed to be against liabilitj% 2648. representation as to, what is, 2571. as to future, 2574. falsity of, 2579. conflict of, 2580. materiality of, 2581. how interpreted, 2573. how may affect policy, 2575. representation, information, 2578. rescission of insurance contract, 2583. time intended by, 2577. when may be, 2572. when may be withdrawn, 2576. rescue from peril, loss incurred in, 2627. test of materiality, 2565. what events may be insured against, 2531. who may insure, 2539. who may be insured, 2540. HVSURAKCE COMMISSIONER bills for certain expenses, 453o. INSURANCE CORPORATIONS. See tits. Fire Insiiraiu*-: lAfe Insurance. capital stock of $100,000, when, 420. of $200,000, when, 419. subscription to, how opened, 414. directors liable for loss on insurance, when, 418. dividend^) as to what are, 417. when to be declared, 417. investment of capital and accumulations, 421, 421[a]. life insurance corporations may loan on own policies, 421, 421[a]. purchase of or loan upon interest-bearing bonds, 421[a]. policies, how issued, and by whom signed, 416. purchase and conveyance of real estate, 415. report of officers, 421. 1833 INDEX. [References are to sections.] INSURANCE CORPORATIONS (continued). subscription to capital stock, how opened, 414. what property may be held, 415. INTEiMPERANCK ground for divorce, when, 92, 107. habitual, what is in divorce, 106. must continue for one year, 107. IXTEXTION. See tits. Gifts; Wills, nscvrtained by language, when, 1638. by writing, when, 1639. compliance with, substantial sufficient, 1348. fraudulent, a question for the jury, 3442. general terms restricted by, 1648. hovr ascertained as to generally, 1637. in revision, 3401. inconsistent with, words which are, to be rejected, 1653. interpretation of contract governed by, 1636. of grantor, where grant an>biguous, 1068. of testator as to generally, 1317, 1370. to be ascertained from words of will, 1318. of trustor, necessary to creation of the trust, 2221. overrules grammatical construction, 1324. technical meaning, 1327. particular clause, subordinate to general, 1650. revision and reformation of contract to conform to, 3399. substantial compliance with, sufficiency of, 1348. superior to terms of expression in written contract, when, 1640. to be ascertained from words of will, 1318. to be carried out, 1317. to deceive, indispensable element in fraud, 1572. to desert, simple separation does not show, 100. to extinguish obligation, necessary in novation, 1531. ' to control in the interpretation of contracts, 1636. to make ademption, writing necessary, 1351. ^ -wheu ascertained by the language, 1638. by the writing, 1639. words which are inconsistent with are to be rejected, 1653. INTEREST annual rate, 1916. as to time as to, generally, 688. 1834 INDEX. [References are to sections.] INTEREST as to time (continued). future interest, what is, 690. limited interest, what is, 692. perpetual interest, what is, 691. present interest, what is, 689. bequest of, 1366. bottomry contract, rate in, 3022. building and loan corporations, 633. cemetery bonds, on, 611. compound trustee's liability for, 2262. when compounded, 1919. computation of, 1917 damages, as, 3287, 3294. definition of, 1915. guaranty notes of mutual life insurance companies, as to on, 441. illegal rate, 1917. in actions ex contractu, 3287. after breach, 3338. in actions ex delicto, 3288. judgment, interest on, 1917-1920. legacies, interest on, 1368. loan and building corporation, interest chargeable by, 634. offer of performance stops running of, 1503. parties may agree to, 1918. presumed on loan of money, 1914. protested bill, rate of, 3236. railroad bonds, interest on, 456. rate of after breach of contract, 3338. after verdict, 3289. limit of by contract, 3289. on money borrowed by homestead corporation, 560. respondentia, rate on, 3039. special partner entitled to, when, 2492. trustee liable for, when, 2262. liability to beneficiary, 2237. waiver of, by accepting principal without, 3290. INTEREST IN COMMON as to, generally, 686. as to what interests are in common, 686. community property. See tit. Community Property. what is, 685. INTEREST IN PROPERTY as to time of enjoyment future interest, what is, 690. 1835 INDEX. [References are to sections.] INTEREST PROPERTY a.s to time of enjoyment (continued). limited interest, wliat is, 692. perpetual interest, what is, 691. perpetual or limited, 688. present or future, 689, 690. contingent interest, as to what is, 695. expectant estates. See tit. Expectant Estates. future- interest, two or more conflicting-, 696. not to be void, 697. interest in real property, what is, 701. future interests are recognized, 703. kinds of future interest, 690. mere possibility of the interest, 700. name and classification of interests, 702. posthumous children. See tits. Posthumous Children; Un- born Child. ^ vested interest, as to what is, 694. INTERLOCUTORY JUDGMENT in action for divorce, 131. INTERPRETATION of agent's authority, 2322. INTERPRETATION OP CONTRACTS as to time of performance, 1657. control by circumstances, 1647. effect to be given to every part of instrument, 1641. general rule of interpretation, 1635, 1636. how to be interpreted, 1636. inconsistent words rejected, 1653. in favor of contract, 1643. in sense in which promisor believed promisee to rely, 1649. intention of parties, how ascertained, 1637. language used to govern, 1638. law of place governs, when, 1646. necessary incidents implied, 1656. of written contracts, 1639. writing, when disregarded, 1640. fraud and mistake. See tits. Fraud; Mistake. particular clauses subordinated to general intent, 1650. partly written and partly printed, 1651. reasonable stipulations implied, when, 1655. repugnance, how reconciled, 1652. restricted to its evident object, 1648. several contracts taken together, when, 1642. technical words, how interpreted, 1645. words taken most strongly against whom, 1654. words to be understood in their usual sense, 1644. 1836 INDEX. [References are to sections.] INTERPRETATION OF GRANT. See tit. Transfer. INTERPRETER. may be employed by officer taking acknowledgment, 1201. INTESTATE. See tit. Sueces.sion. estate of chargeable with debts, 1358. INTESTACY. to be avoided in construction of will, 1326. INTOXICATION. See tits. Contracts; Divorce; Wills. INUNDATION deposit by an, as to, 1815. INVENTION as to property in, 980-985. INVENTORY by assignee for creditors, 3461-3464. by specific legatee, 1365. of separate property of wife. See tit. Separate Property of Wife. IRRIGATION. See tit. AVater and Canal Corporations. ditch or flume, liability in use of by association, 842. easement, 552. flume or ditch, liability in use of, 842. right of purchaser to use water for. See tit. Water and Canal Corporations. IRRIGATION CORPORATION. See tit. Irrigation. as to, generally, 552. stock appurtenant to lands, when, 324. transfer of stock of, 324. IRRIGATION STOCK appurtenant to certain lands, 324. ISLANDS as to, generally, 1016-1018. belong to whom, 1016. formed by diversion of stream, 1018. in navigable streams, 1016. in unnavigable streams, 1017. sudden removal of bank, 1015. ISSUE interpretation of, 1071. meaning of, in certain remainders, 1071. unprovided for to succeed, when, 1307. JETTISON. See tit. General Average. definition of, 2148. loss, how borne, 2151. order of, 2149. by whom to be made, 2150. JOINT and several contract, presumed, when, 1659. 1837 INDEX. [References are to sections.] JOINT (continued). and several obligation, what is, 1430. authority, 12. authorship, 981. creditor directions by one to debtor, 1476. performance by one, 1475. debtor, performance by, 1474. delivery of thing- by depositary which is owned jointly, 1827. employees, duty of survivor, 1991. g-uardian, death of, effect, 252. interest change in does not affect insurance, when, 2557. defined, 683. liability of each, 2239. obligations, as to, 1430-1432. owner, delivery, how made to by depositary, 1827. ownership, as to, 682. promise, presumed to be, when, 1659, 1660. services after death of joint employee, 1991. survivorship between, 2288. trustee, all must act, 2273. JOINT AUTHORITY how construed, 12. JOINT DEPOSITS by two or more persons, 1828. JOINT INTEREST what is, 683. JOINT OWNERSHIP to products of tlie mind, 981. JOINT OR SEVERAL, OBLIGATIONS. See tit. Obligations. contribution between parties, 1432. statute of limitations as to. See tit. Statute of Limitations. JOINT TENANCY AND JOINT TENANTS husband and wife may be, 161. JOINT AVILLiS. See tit. Wills. JUDGMENT effect of, in action to prove instrument, 1203. effect of such judgment, 1204. for delivery. See tit. Claim and Delivery. for possession of, 3375. interest, 1919. lien of, 3058. marriage annulled by, 86. may be recorded without acknowledgment, 1159. partner may not confess, 2430. proving instrument, 1203. recording. See tit. Recordations. 1838 INDEX. [References are to sections.] JUDICIAL SALE foreclosure of right to redeem pledge by, 3011. warranty upon, 1777. JUNIOR LIENOR right of to redeem, 2904. JURISDICTION ACQUIRED BY CORPORATION o\ I' I IU,IC.\- TION OF NOTICE as to, generally, 340. JUSTICE OF THE PEACE acknowledgment, may certify, 1194. may take, 1181. apprenticeship. See tit. Master and Api»reutU-e. list of property found to be filed with, 18G4. marriage ceremony naay be performed by, 70. may call meeting of corporation, when, 311. JUSTICES' COURTS appeal from, undertaking on, 978a. JUSTIFICATION. See tit. Libel. KILLING SHEEP by dogs, as to liability, 3341. KINDRED collateral line, direct line of, 1393. degrees of in direct line, 1392. direct line, 1392. half-blood. See tit. Half-blood. LABORER lien of, 3052, 3061, 3065. LAND dettnition of, 659. LAND AND BUILDING CORPORATIONS annual report, 644. forfeiture for failure to file, 644. report to be publislied, 644. arrears in payment, notice and forfeiture, 6;'.;t. capital stock, 634. certificate of shares, series of, 634. defaulting member entitled to withdrawal. 639. withdrawal value to be credited on enforcement of for- feiture, 639. definition of term "building and loan association." 648. dues, 634. electing to continue business, procedure on. 646. certificate, 646. entrance and transfer fees, 634. fines. 634. 1839 INDEX, [References are to sections.] LAND AND BUILDING CORPORATIONS (continued). foreign building and loan association, deposit required of, 645. agents of companies not complying guilty of misdemeanor, 645. effect of failure to comply, 645. instalments to be uniform, 637. losses of, 642. matured stock, amount applicable to payment of, 636. may borrow money, 641. may buy real estate, 640. membership, who may hold shares, 643. exemption, 643. money to be loaned, 637. \ notice of withdrawal or surrender of stock, 63Sa. notice of arrears and forfeiture, 639. payment in advance, 634. profits and losses of, 642. rate of interest on and security for loans, 638. repayments, 638. retire free shares, amount annually, 635. shares, 634. subject to provisions relating to bank commissioners, 647. what articles of incorporation shall set forth, 633. withdrawal or surrender of stock, 63Sa. notice of, 638a. LANDLORD AND TENANT. See tit. Lease. adverse proceedings, notice of to be given by tenant, 1949. assignee of lease, liability of, 822. attornnieut by tenant, not required, when, 1111, of tenant to stranger, 1948. dwelling-house, to be put in fit condition by lessor, 1941. ejectment notice of to be delivered by tenant, 1949. without notice, 793. fixtures. See tit. Fixtures, holding over, treble rent for wilfully, 3345. lease dependent on life of person, rent recoverable after death, 825. for life, rent on, 824. statute of frauds, 1624. terms of may be changed by notice, 827. lessees and assignees, rights of, 823. assignee, liability of, 822. letting parts of rooms, regulations regarding, 1950. 1840 INDEX. [References are to sections.] LANDLORD AND TENANT (continued), liability of assignee of lease, 822. lodgings hired for an indefinite period, 1944. Quit ' failure to after notice, treble rent as damages, 3344. notice to, 1946.- re-entry, to be made, when and how, 791. renewal of lease acceptance of rent as, 1945. by continued possession, 1945. rent dependent on life, 825. effect of lessor's failure to repair, 1942. life lease, 824. payable, when, 1947. tenant released from, when, 1950. repairs lessee to make, effect of failure to, 1942. when lessee to make, 1942. when lessor to make, 1941. rooms, letting part of prohibited, 1950. tenant at will, as to rights of, 819. tenant for years, as to rights of, 819. tenant must deliver to landlord notice served on him, 1949. term hiring lodging-house for indefinite period, 1944. of hiring, when no limit fixed, 1943. termination of tenancy at will, 789, 790. for holding over, 3345. treble rent on failure to quit after notice, 3344. vacation by tenant, for failure to repair, 1942. LAPSE OF TIME. See tit. Limitation of Action. bottomry lien extinguished by, 3027. definition of, 125. divorce denied because of, when. 111. extinguishes bottomry lien, 3027. lien, not extinguished by, 2911. nuisance, not legalized by, 3490. partnership dissolved by, 2450. presumptions arising from, may be rebutted, 126. proposal to contract, revoked by. 1587. LAPSED devise, 1343, 1409. legacy, 1343, 1409. LATENT DEFECTS warranty of manufacturer against, 1769. 1841 INDEX. [References are to sections.] LATERAL SUPPORT easement of, 801, 802. excavations infringing on, 832. LAUNDRY as to lien on, 3051. LAW obligations imposed by, 1708-1715. LAWYER. See tit. Attorney. LEASE. See tit. Hiring. agricultural lands, for more than ten years, void, 717. assignee of, remedies of lessor against, 822. building and loan associations may make, 640. change of terms of, 827. ^ city lots, for over fifty years, void, 718. for life, remedy on, 824. notice of change of terms of, 827. of agricultural lands for more than ten years, void, 717. of city lots for more than fifty years, void, 718. recording, 1214. rene-wal by acceptance of rent, 1945. by continued possession, 1945. renewal of by continued possession, 1945. rights of lessees and their assignees, 823. statute of frauds, 1624. telegraph and telephone property, lease of, 540. trust, express, maj^ lease realty, 857. LEASE AND PROFITS to receive and accumulate, 857. trust to receive and pay, 857. LEGACY. See tits. Devises and Bequests; W^llls. abatement of legacy, 1362. as to nature and designation of, 1357. annuities. See tit. Annuities. demonstrative legacy, 1357. general legacy, 1357. residuary legacy, 1357. specific legacy, 1357. bequest of interest, 1366. satisfaction of, 1367. construction of the statutes in relation to, rules for, 1370. estates chargeable with, 1358. order of resort to estates for debts, 1359. for legacies, 1360. for legacies to kindred, 1361. gift treated as, when, 1153. interest on, from what time, 1369. 1842 INDEX. [References are to sections.] LEGACY (continued). liability of beneficiaries for testator's obligations, 1377. possession of legatee, 1365. specific legacies and devises, 1363. when due, 1368. LEGAL, AXD MORAL. OBLIG\TIONS. See tit. Consideration. as to being valid consideration, 1606. LEGAL RELATIONS of husband and wife, alteration of, 159. LEGATEE death of before testator, effect of, 1310. LEGISLATURE dissolution of corporation by, 384. effects of, 404. examination of affairs of corporation by, 382. regulating freights, 465. LEGITIMACY. See tit. Btij^tards. of children born after divorce, 194. born before annulment, 84. in wedlock, 193. who may dispute, 195. LENDER. See tit. Loan for Use. liable for defects, when, 1893. may require return of thing lent, 1894. LESSOR AND LESSEE. See tit. Landlord and Tenant. LETTER. See tit. Le.ssor. hiring terminated by, 1931. LETTER OP ATTORNEY. See tit. Power of Att«»rney. LETTER OF CREDIT addressed, how, 2859. credit given on must agree with terms of letter, 2866. credit under must agree with terms of, 2866. definition of, 2858, 2866. direction of, 2866. either general or special, 2861. seneral extent of, 2863. nature of, 2862. or special, 2861. * how addressed, 2859. liability of writer, 2860. maj' be a continuing guaranty, 2864. notice to writer necessary, when, 2865. LETTERS containing valuables, liability of carrier, 2177. property in, 985. LETTERS PATENT recorded without acknowledgment, 1160. 1843 INDEX. [References are to sections.] LIBEL as to what constitutes, 45. defamation, 44. privileged publication. See tit. Privileged Publication. LICENSE marriage, as to, 69, 79. of ships, 966. of street railways, 505. to take tolls, 528. LICENSEE. See tits. Marriage; Negligence; Obligation!* Im- posed by Laiiv. marriage without, 79. LIEN ^ accessory to thing secured, 2909. agistor. See tit. Agi-stors. apportionment of, 2912. bankers. See tit. Bankers. bolts on. See tit. Otber Liens. bottomry. See tit. Bottomry. bull, of owner of. See tit. Stallion. carriers. See tit. Carrier. on baggage. See tit. Baggage. ship's master may not give up, 2388. certain contracts void, 2889. compensation, holder of not entitled to, when, 2892. confined to what, 2891. contract created by, 2881. may be created by, 2884. respecting, void, when, 2889. subject to, 2877. created by contract, 2884. creation of liens, 2881. by contract, 2884. how created, 2881. lien on future interest, 2883. no lien for claim not due, 2882. definition, 2872. of gen"D SERVANT. See tits. Damages; Einpluynient; Neg:llg:eiice. abduction of servant, 49. account, employee to, 1946. accounting by servant, 2014. apprenticeship. See tit. Ma.iter anti Apprentice. assumption of risk by servant, 1970. compensation for service without employment, 2078. from successor of employer, 1998. of employee dismissed for cause, 2002. leaving for cause, 2003. confidential employment. See tit. TrustN. continuance of service after death, etc., of employer, 1998. contract of employment defined, 1965. of services limited to what time, 19S0. damages against master. See tit. Duuiases. for breach of indenture, 273. death of employee, 1997. of employer, 1996, 1997. of joint employee, 1991. definition of servant, 2009. delivery by employee, without demand, as to, 1987. 1856 II INDEX. [References are to sections.] MASTER AND SERVANT (continued), discliarge of servant, when, 2015. grounds for, 2015. dismissal for cause, compensation, 2002. grounds for, 2002, 2015. duties of employee for his own benefit, 1979. for reward, 1978. of gratuitous employee, 1975. employee not bound to deliver without demand, 1987. to follow directions, 1981. to obey employer, 1981. employment, definition of contract of, 1965. enticement of servant, 49. fellow servant, liability of master for acts of, 1970. gratuitous employee, duties of, 1975. hiring renewal of, 2012. term of, 2010.. incapacity of employee, discharge for, 2000. of employer, relation not determined by, when, 1997. of master terminates relation, 1996. indemnifying employee employer not required to, when, 1970. required to, when, 1969. indemnity against acts of servant, contract of, 2775. injury to servant by third person, 49. forbidden, 49. joint employees, survivor's duty, 1991. master, liability to servant, 1969. mutual rights to protection, 49, 50. negligence of employee discharge for, 1990. liability of master for, 1990. negligence of master, liability for, 1971. obey, employee required to, 1981. power of attorney, 1977. preference to be given employer's interest, 1988. presumed to be monthly, when, 2011. renewal of hiring, 2012. renewal of term of employment, 2012. servant definition of, 2009. to pay over without demand, 2014. Kerr's C. C— 59 1857 INDEX. [References are to sections.] MASTER AND SERVANT (continued), service without employment, as to, 2078. skill degree employee required to use, 1984. degree required of employees, 2071. substitute, employee liable for, 1989. surviving employee, as to duty of, 1991. term of employment, 2010, 2011. term of liiring, 2010. termination of relation at will, 1999. by death or incapacity of employer, 1996. by employee for fault, 2001. by employer for fault, 2000. death of employer does not, when, 1996, 1997. what works a, 1999. term of service, 2013. time of employee belongs to master, 2013. title to things acquired by employee, 1985. usage, employee to conform to, 1982. MASTER, SHIP'S. See tit. Sliip.s and Shipping. MATES AlVD SEAMEN. See tit. Seamen. certificate by master in favor of seamen on loss of ship, 2059. death during voyage, 2062. definition of mate, 2048. of seamen, 2049. desertion of ship without cause, forfeits wages, 2063. disabled seamen entitled to wages, when, 2060. how engaged and discharged, 2050. law governing seamen, 2066. maintenance of seamen during sickness, 2061. not bound to go to sea in unseaworthy vessel, 2051. not to lose wages or lien by agreement, 2052. seamen cannot ship goods, 2064. special agreement with seamen, 2053. theft by forfeits wages, 2063. wages, forfeiture of, how, 2063. not lost by wreck, when, 2058. of seamen depending on freightage, 2054. where voyage is broken up before departure, 2056. when wages of mate and seamen to begin, 2055. wrongful discharge of, 2057. MAXIMS of jurisprudence. 3509-3543. MAYOK marriages may be solemnized by, 70. may take acknowledgments. 1180. | 1858 INDEX. [References are to sections.] MEAXDER.S. See tit. >Vaters, ItoiiiMlsiries Ry. MEASURE OF DAMAGES for bread! of contract, 3300. breach of agreement to buy personal property, 3311. to buy real property, 3307. to convey real property, 3306. to pay for personal property sold, 3310. to sell personal property, 3310. where not paid for, 3311. where paid for, 3311. breacli of carrier's obligation to deliver, 3315. to receive goods, 3315. breach of contract to pay liquidated sum, 3302. of covenant against encumbrances, 3305. of covenant of seizin, 3304. , of promise of marriage, 3319. of warranty of authority, 3318. of warranty of quality of personal property, 3313. for special purpose, 3314. carrier's delay, 3317. dishonor of foreign bill of exchange, 3303. must be certain, 3301. f«»r \vrong.>4 breach of obligations other than contract, 3333. as to, generally, 3333, 3334. conversion of personal property, 3336. application for benefit of owner, 3337. damages for lienor, 3338. for seduction, 3339. injuries to animals, 3340. wrongful holding over, 3335. wrongful occupancy of real property, 3334. MECHAMC'S MEX assessments by, 592d. by-laws of, 592c. capital stock of, 592. certificates of, 592. formation and powers. 591. organization, 591. powers to acquire, use and si-11 prop, riy, 392b. which may be conferred on trustees, etc.. 592a. pre-existing corporations may come in under. .Mt2i>. stockholders' rights and liabilities, 592. MECHAMCS' MEN as to regulation of, 3059. homestead liable to, 1241. 1859 INDEX. [References are to sections.] 3IEETING STEAMERS. See tit. KiileN of Navisation. "MEMBERS" AND "STOCKHOLDERS." See tit. Corporatiuns. MEMBERSHIP in co-operative corporations, 653u. of co-operative aKTicuItiiral. etc., :i.s.soeiaUonN as to generally, 6.")3n. conditions of, 653p. fee of, 653q. qualifications of, 653p. transfer of, 653n. MEMORANDUM. See tits. Auetioiieer.s; Statute of Frauds. binds parties, when, 1798. to contain what, 1798. declaring a trust, 2254. of sales by auctioneer, 1798. 4»ii eoutraet «tf nale of personal property, 1739. of real property, 1741. MENACE. See tit. Contract. as to what constitutes, 1.570. consists in what, 1570. merchandise, warranty implied as to, when, 1768-1771. rescission for, 1688. MENTAL CAPACITY. See tit. AVIIIn. MENTAL DISEASE. See tit. Wills. MERCHANDISE not in existence, warranty as to, 1768. MEKtiER of interest destroys hiring, when, 1932. destroys servitude, 810. METER right to inspect gas, 631. MILL-SITE location of, 1426j. record of location, 1426k. MINE. See tits. Mines; Mining Corporations. claims. See tit. Mining Claim. affidavits of work upon and recording, 1159. hydraulic. See tit. Hydraulic Mining. recording notice of location of, 1159. affidavit of work upon, 1159. fixtures attached to, 661. mortgage of machinery in, 2955. notices of location, 1159. partnership in, 2511, 2518. 3IINING. See tits. Lode Claims; Placer Clainin. 1860 I INDEX. [References are to sections.] MINIMUM CAPITAL. See tit. Corporations. required to be paid in before incorporation, 290a. MINING CLAIM. See tits. Location Notice; Lode r!aim.s; Placer CIaini»i; Tunnel Right. affidavit of work, 1159. recorder's fee for, 1426n. amendment of notice of location, 1426h. certificate of, recorder's fee, 1426n. delinquent co-o-»vners notice to, 1426o. payment by, 1426o. development work, neglect to perform, 1426s. location of notice of, amendment to, 1426h. recorded without acknowledgment, 1159. mill-site. See tit. Mill-Site. mining district, effect of statute on, 1426r. neglect to perform yearly work, 1426s. record of location of copies of as eyidence, 1426q. to be received in evidence, 1426p. record of yearly work, 1426m. recorder's fee, 1426n. recording notice of location, 1159. surveyed claims, 1426i. yearly -work required as to generally, 14261. neglect to perform, effect, 1426s. MINING CORPORATIONS balance sheet to be kept and posted, 588. books and balance sheets to be kept l^y secretary, 588. liooks and papers, right of stockholders to inspprf. .'>88. stockholder's right to inspect, 588. consolidation certificate of consolidation, filed where, 587a. to be signed by whom, 587a. consent of stockholders in writing, 587a. effect of, 587a. election of trustees on, 587a. limitations on, 587a. notice must be given, 587a. proceedings on, 587a. discovery of ore, superintendent to report, 588. examination of mine as to right of, 589, 590. effect of refusing stockholder right to make, 589, 590. liability for refusal of right of, to stocknolders, 590. 1861 INDEX. [References are to sections.] MINING CORPORATIONS exniniiintion of mine (continued). .stofkhoiders' ri^lit to inspect l)oulis, 588. to make examination, 589, 590. failure of superintendent to obey orders, removal, 589. liability of officers and directors, 590. montl>ly account to be filed by superintendent, 588. report attached to account open to inspection, 588. what must show, 588. monthly balance sheet to be verified by oath of whom, 588. receipts and disbursements, account of to be kept, 588. removal of superintendent in failing to obey orders, 589. reports and accounts by superintendent, 588. right to examine books, 589. stockholder's right to visit mine with expert, 589. duty of superintendent, 589. liability of officers and directors, 590. refusal to permit examination, damages, 590. removal of directors for refusal, 590. stock issued at transfer agencies, 587. superintendent, capacity in which acts, 591. surrender of certificate on transfer, 587. transfer agencies of, 586. may establish in other states, 586. | MIIVING DISTRICTS effect of statute of 1909 on, 1426r. MINING PARTNERSHIP contract in writing binding, when, 2519. exists, when, 2511. express agreement not necessary to constitute, 2512. governed by owners of majority of shares, 2520. lien of partners, 2514. mine partnership property, 2515. owners of majority of shares govern, 2520. partnership not dissolved by sale of interest, 2516. profits and losses, how shared, 2513. purchaser takes subject to liens, when, 2517. takes with notice of lien, when, 2518. sale of interest does not dissolve partnership, 251G. MINOR. See tit. lufnnt. cannot disaffirm certain obligations, 37. cannot disaffirm contract for necessaries, 36. cannot give a delegation of power, 33. contracts by, disaffirmance. See tit. Disafflnnauoe. as to generally, 34. custody of, 32. 1862 INDEX. [References are to sections.] MINOR (continued). liability for wrongs, 41. may hold stock in savings bank, 575. not liable for exemplary damages, 41. period of minority, how calculated, 26. personal rights, generally, 43. status of, how changed, 28. who are, 25. MISDEMEANOR, to entice away apprentices. See tit. Mnsior and Apprentice. foreign building, etc., agent not complying with statute com- mits, 645. savings corporation, president of, guiltv of when 581 MISNOMER does not invalidate corporate instruments, when, 357. MISREPRESENTATION. See tit. Fraud. MISTAKE as affecting right-to enforcement of specific performance, 3391. disregarding erroneous parts of instrument, 1610. either of law or fact, 1576. in wills, 1340.' of fact as to what constitutes, 1577. of foreign laws, as to, 1579. effect of, 1579. of law as to what constitutes, 1578. property acquired by, 1713. of contract for, 1689, 3407. specific performance, prevents, wlien. 3391. trust arising from, 2224. will, in, effect of, 1340. MISTAKE OF FACT. See tit. Recovery Rack of Money I'lil.l. MOH VIOLENCE. See tit. Strikes. Mol» Violence. Elort«:iKe of IVrsoii:il l'r: Mortsase of Real Property. adversely held, 'property may be, 2921. as to what property may be mortgaged. 2921. as.sigrnuieut of debt by acknowledgment and recording. 2936. effect of to pass security, 2936. 1863 INDEX. [References are to sections.] MORTGAGE a.ssi^ument of debt (continued). record of is notice, 2934. secured, passes mortgage, 2936. assignment of, recording, 2934. benevolent association, given by, 598. bottomry and respondentia not affected by chapter on mort- . . gages, 2942. building and loan association may make, 640. certificate of discharge, 2939. by foreign executors and administrators, 2939%. discharge of mortgage by foreign executors and adminis- trators, 2939%. satisfaction of mortgage, 2941. deed absolute is, when, 2924, 292.^. defeasance, transfer made subject to, 2925. definition, 2920. discbarg:e of by foreign executors and administrators, 2939%. certificate of, 2939. form of, 2938. how made, 2938. liability for refusal to execute certificate, 2932. of record, how, 2937, 2940. recording discharge, 2940. does not entitle mortgagee to possession, 2927. duty of mortgagee on satisfaction, 2941. encumbrance included in term, 1114. execution by attorney under power, 2933. execution, formalities of, 2922. executors and administrators, foreign, discharged by, 2939%. extends to and includes what, 2926. factor may not make, 2368. foreclosure. See tit. Mortgage Foreclosure. as to, 2931. foreign executors and administrators, discharge of by, 2939%. form of, 2948. of discharge, 2938. homestead liable for, when, 1241. mortgaged how, 1242. of lunatics. See tit. Honie.stead. how discharged, 2938. insurance on property that is, 2541. is subject to the general law of liens, 2877. lien of special, when, 2923. lien on what, 292S. 1864 INDEX. [References are to sections.] MORTGAGE (continued), must be in writing-, 2922. not a personal obligation, 2928. notice to mortgager not given by recording assignment, 2935. of chattels. See tit. Mortgage of Personal Property. of property by wagon road corporaticjn, r)22. on what a lien, 2926. passes by assignment of deTit secured, 2936. personal obligation, is not a, 2928. possession, mortgager entitled to, exception, 2927. power of attorney to execute, 2933. power of sale conferred upon mortgagee, 2932. when deemed part of the security, 858. priority of given for purchase money, 2897. property adversely held may be mortgaged, 2921. property that may be mortgaged, 2947. railroad, mortgage by, 456. recording, as to, 1163. in general, 295*. of assignment of, 2934. not notice to mortgager, 2935. of certificate of discharge, 2939. of defeasance, 2950. redemption from sale under foreclosure of, 2903-29O.". right of, 2931. religious association, execution by, 598. respondentia, is not subject to the law, 2942. satisfaction, duty of mortgagee on, 2941. as to, generally, 2942. shipmaster's power to hypothecate, 2377. ships, mortgage of, 2971. recording of necessary, 2958. statute of frauds as affecting, 2922. subsequently acquired title, covered by, 2930. title, subsequently acquired, covered by, 2930. transfer made subject to defeasance is, 2925. transfer, wheri mortgage and when pledge, 2924. trust, an express, to mortgage real property, 857. wagon road corporation, executed by, 522. waste, not permitted. 2929. writing, must be in, 2922. MORTGAGE FORECLOSURE right of redemption, 2931. MORTGAGE OF PEItSOXAL PROPERTY. Soc tit. Clinttel Mortgage. as to what property may be mortgaged. 2955. certain sections not applicable to certain ships, 2971. 1865 INDEX. [References are to sections.] MORTGAGE OF PERSONAL PROPERTY (continued), continuance of lien of mortgage on crop, 2972. distribution of proceeds of sale under process, 2970. foreclosure, distribution of proceeds of sale under, 2970. foreclosure of, how made, 2967. form of, 2956. levy upon mortgaged property, 2968. limitations on right of levy, 2969. may la^e. recorded, 2963. may be taken by mortgagee as a pledge, when, 2966. mortgage of ships, void as to third persons, when, 2958. mortgaged property may be levied upon, 2968. property exempt from mortgage, when, 2965. recordation certified copy may be recorded when, 2964. in different places, 2962. of common carrier, 2961. personal mortgage may be recorded, 2963. where property in transit, 2960. where to be made, 2959. ships, certain sections not applicable to, 2971. validity of, certain, 2973. void as to third persons, when, 2957. where recorded, 2959. in different places, 2962. of common carrier, 2961. where property in transit, 2960. MORTGAGE OF REAL PROPERTY as to what interest may be mortgaged, 2947. defeasance, must be recorded, 2950. form of mortgage, 2948. may be recorded, 2952. MORTGAGE OF SEPARATE ESTATE OF MARRIED ^VOMAN acknowledgment of. See tit. Grant by Married ^Vonlan, MORTGAGED PROPERTY. See tit. Homestead. MORTGAGEE assignment of to thing insured, effect of, 2541. MOTHER. See tit. Parent and Cliild. apprenticeship, consent to. See tit. Ma.ster and Apprentice. custody of child, consent of necessary to transfer of, 197. illegitimate cliild consent to adoption of, 224. entitled to custody of, 200. succeeds to property of, 1388. MOTORCYCLES franchise to construct road for, 524. MOTIVE PO^VER OF STREET RAILROADS. See tit. Propelling: Po'»ver. 1866 « INDEX. [References are to sections.] HIULTIPLICITY OF SUITS prevented by injunction, 3422. MUNICIPAL, CONTRACTS. See tits. Contracts: Miiiii.ipnl Cor- poration. MUNICIPAL, CORPORATION distinction between public and private corporations, 284. Injunction to prevent legislative act of, 3423. water company, contract with, 548-552. will, may take under, when,- 1275. MUNICIPAL, ORDINANCE. See tit. IVIojirjiidi ami Teleplione Corporation.s. MURDERER of decedent cannot succeed, 1409. MUTUAL, BENEFIT AND LIFE ASSOCIATIONS assessments, right to levy, 453. filing articles of incorporation, 452a. formation of, 452a. levying of assessment, 453. by-laws which may be made regarding, 453. loaning funds and purchasing real estate, 453. what articles must show, 452a. MUTUAL BENEFIT SOCIETY. See tit. ReIiKiou.s. Social. aii«l Benevolent Coriior:i(iou. (MUTUAL BUILDING AND LOA.X ASSOCIATION. See tit. Land and Building CorporsitionN. MUTUALITY of consent in contract, 1580. of intent, must be given in interpretation. 1635. MUTUAL LIFE, HEALTH, AND ACCIDENT 1NSUR.\NCE COR- PORATIONS alteration of number of directors, 443. associations and secret orders not insurance corporations. 451. benevolent or fraternal co-operative societies are. 451. by-laws may prescribe limitation of stock held. 445. fixed, deficiencies in, 439. commission allowed, 441. commission and interest allowed, 441. declaration of fi.xed capital stock to be tiled. 4 411. directors, number of, how altered, 443. dividends, how made, 456. filing of declaration of fixed cajiital stock. 440. guarantee fund of, 437. guaranty notes and interest, 441. insured entitled to vote,* when, 442. interest allowed, 441. investment of capital stock, 421, 421 [a], 444. 1867 INDEX. [References are to sections.] MUTUAL LIFE, HEALTH, AND ACCIDENT INSURANCE COR- PORATIONS (continued), issued within the state, 450. penalty for failure to comply with statute, 450. proof of death within a year, 450. limitations as to holding of stock, etc., 445. preniiiini.s agreements in policies as to, 446. how payable, 446. subscription may be rejected, 437. to furnish data to insurance commissioner, 447. retaliatory clause, 449. vote, insured entitled to, when, 442. NAME certificate of, of partnership, 2469. change of, conveyance made, how, 1096. child adopted, taken by, 228. error in, of corporation, 357. fictitious, of partnership, 2466-2471. of corporation, to be stated in amended articles, 289. of partnership, as notice of dissolution, 2454. partnership under fictitious, 2466-2471. NAVIGATION rules of. See tit. Rules of Navigation. NE3CESS ARIES. See tits. Husband and AVife; Infant; Necessaries for Infants. husband's liability for, 174. infant, contract for by, not disaffirmable, 36. lunatic's liability for, 38. parent not liable for, furnished child, when, 208. promise by child to paj' for those furnished parent, 206. third person may furnish to child, when, 208. NECESSARIES FOR INFANT contract for by infant, cannot disaffirm, 36. NEGLIGENCE. See tit. Obligations Imposed by L.aw. agent's, principal liable for, when, 2338. apprenticeship annulled for. See tit. Master and Apprentice. borrower to repair injuries, when caused by, 1889. carrier, not exonerated from, 2175. degrees of, 16, 17. depositary, liability of for, 1840. divorce for neglect. See tit. Divorce. employee, liability for, 1990. hirer liable to repair injuries caused by, 1929. in insurance, as to, 2629. * insurer, not exonerated by, 2629. liability of depositary for, 1840. pilot's, shipmaster liable for, 2384. 1868 INDEX. [References are to sections.] NEGLIGENCE (continued). raises an involuntary trust, wlien, 2224. shipmaster, liability for, 2383. wilful, 1714. NEGOTIABLE CO\'TRACT. See tits. Contracts; Negotiable In- struments. NEGOTIABLE INSTRUMENTS absolute, must be to be valid, 3088. acceptance admissions by, 3199. allonge, 3110. bill of, 3194. by refusal to return, 3195. by separate instrument, 3196. concealment of acceptance, 3198. for honor, 3205-3207. does not excusfe notice, 3207. how made and enforced, 3205, 3206. holder entitled to on face of bill, when, 3194. how made, 3193. of bill, 3194. promise to accept equivalent to acceptance, when, 3197. qualified, effect of, 3195. sufficiency of, when with another's consent, 3195. what is admitted by, 3199. what sufficient with consent of holder, 3195. acceptance or payment of bill for honor, 3205. holder bound to, when, 3204. how enforced, 3206. how made, 3205. notice of dishonor not excused by acceptance for honor, 3207. when may be, 3203. allonge, 3110. alternative instrument, 3090. bank notes, 3261. bearer, instrument payable to, construction, 3101. bills, acceptance of, 3193. attorney fees and costs may bo provided for in, 3088. bank notes. See tit. Bank Notes. as to, 3261. bill days of grace on note allowed, 3181. deemed a note, when, 3246. defined, 3171. in parts of a set, 3173. of lading, as to, generally, 2127. of exchange. See tit. Bills of Exchange. as to, generally, 3171-3177. 1869 INDEX. [References are to sections.] ,'' NEGOTIABLE INSTRUMENTS bill (continued). set, to be in a, 3174. must be in a, when, 3174. blank indorser's liability, 3125. bonds. See tit. Bonds. are negotiable, 3095. cancelation of acceptance, 3198. carrier' liability for loss of, 2177. liability toward, 2201. classes of, enumerated, 3095. ^ collection agent's duties, as to, 2021. ^ consideration, effect of want of, 3131. y contents of, as to, 3093. damages for dishonor. See tit. '"dishonor of." certificate of stock. See tit. Certificate of Stock. certificates of deposit. See tit. Certilicji«e.s of IJcposlt. as to, 3261. is a, 3095. ,, checks. See tit. Cheeks. J- definition of, 3254. consitleration presumption of, 3104. days of grace are not allowed, 3181. definition of, 3087. demand, effect of want of on principal debtor, 3130. different classes of, 3095. disbonor of additional time for by indorsee, 3150. after indorser's death, 3145. definition, 3141. effect of notice of dishonor, 3151. execution or prevention of notice, 3155. delay, when excused, 3158. v waiver of presentment and notice, 3159. waiver of protest when excused, 3155, 3156. form of notice, 3143. how given by agent, 3149. how served, 3144. given in ignorance of death, valid when, 3146. notice of, 3142. by whom to be given, 3142. to be given, when, 3147. when to be mailed, 3148. 1870 INDEX. [References are to sections.] NEGOTIABLE INSTRUMENTS (continued). date any may be inserted, 3094. may be inserted by maker, 3094. nominal, as to, 3094. not essential, 3091. days of grace. See tit. Days of Grace. death of maker on nominal date, effect of, 3094. destruction of, effect of by indorser, 3115. dishonoi* of bill payable after sight, presumption of, when, 3133. of foreig-n bill, damages for, as to, 3234-3238. what is, 3141. drawee, in case of need, 3172. drawer, rights and obligations of, 3177. effect of want of demand on principal debtor, 3130. excuse of presentment and notice in bill. See tits. Blll.s; F'or- eign Bills. extinction of. See tit. Extinction of Oblisation.<4. by payment, 3164. when extinguished, 3164. fictitious payee, 3103. foreign bills. See tits. Bills; Foreign Bill.s. guaranty as to collectibility of, 2800-2802. original, what is, 2794. incapacity of maker at time of nominal date, effect of, 3094. indorse. See tit. Indorsement. as to agreement of, 3112. indorsee in due course, who is, 3122. rights of, 3124. of check, after maturity, 3255. privy to contract, 3120. rights of those of guarantor, 3120. indorsement. See tit. Indorsement. as to, 3108. indorser destruction by, 3115. implied warranty by, 3116. liability of, generally, 3116. liability of payee, when, 3117. inland bill, definition of, 3238. interest, to be on amount of protested bill. 3236. kinds of, enumerated, 3095. 1871 INDEX. [References are to sections.] NEGOTIABLE INSTRUMENTS (continued). maturity apparent, as to, 3132. of bill payable at sight, 3134. of note, 3135, 3136. may be an alternative, 3090. may contain a pledge, etc., 3092. money, payment in must be provided for, 3088. must be for unconditional payment of money, 3088. must be payable in money, 3088. must contain, what, 3093. must not contain any contract, 3093. nominal date of, 3094. note applicability of code provisions to, 3247. definition of, 3244. notice delay in presenting, 3248. effect of giving, 3151. notice excused, when, 3155, 3156, 3220. as to generally, 3155, 3156, 3220. given in ignorance of di-ath of indorser, 3146. how served, 3144. after death of Indorser, 3145. inures to benefit of others, 3151. not excused by acceptance for honor, 3207. of diHlionor of additional time for, 3150. by agent, 3149. by subagent, 3149. delay excused, when, 3150. served, how, 3144. time of mailing, 3148. time of serving, 3147. waived, how, 3155. waiver of, as to, 3159. who may give, 3142. how construed, 3155. parties may waive provisions of code, 3268. partner, liquidating firm, powers as to, 2461. parties, waiver of code provision by, 3268. to order, how construed, 3101. where bill is, 3176. payee fictitious, 3103. must be ascertainable, 3089. who is, 3089. 1872 INDEX. [References are to sections.] NEGOTIABLE INSTRUMENTS (continued). payment extinguishes obligation, 3164. for honor, 3203. declaration of, 3233. instrument to be surrendered, exception, 3137. of part of bill in sets, 3173. place of, not specified, 3100. surrender of instrument may be made condition of, 3137. time of, not specified, 3099. time or place of, designation not necessary, 3091. to excuse or order, how construed, 3101. place of payment, 3099. not specified, 3100. pledge of as to collateral, 3092. of collateral, may be contained in, 3092. presentation for payment, 3130, 3131. apparent maturity, 3132. of bill payable at sight, 3133. of note, 3135. dishonor of bill, presumptive, 3133. how made, 3131. indorsement after maturity, demand of payment, 3135. after sight or demand, 3136. surrender of instrument as condition of payment, 3137. maturity apparent, 3132. maturity of bill payable at sight, 3134. presentment of bill for acceptance, 3185. how made, 3186. to joint drawers, 3187. when must be made, 3189. when to be made to drawee in case of need. 3188. presentment of bill for payment. See tit. Bills. of bill payable at a particular company's, 3212. of delay in, in certain cases, 3213. in other cases, 3214. when not accepted, where to be made, 3211. presumptive dishonor of bill payable after sight, 3133. promissory notes. See tit. Promissory Xote. definition of, 3244. protest bill, form necessary, 3225. by whom to be made, 3226. how made, 3227. notice to be given, how, 3231. time of making, 3229. 1873 INDEX. [References are to sections.] NEGOTIABLE INSTRUMENTS protest (continued), waiver of, 3159, 3232. when excused, 3230. where made, 3228. surrender of instrument a condition of payment, 3137. time of payment, 3099. to what title is applicable, 3086. uncon4itional, instrument must be, 3088. unindorsed note, when negotiable, 3102. waiver of code provisions, 3268. wareli.ouse receipt, is, when, 1858f. what instrument must contain, 3093. NEGROKS OR MILATTOBS marriage with whites void. See tit. MMrrisige. as to generally, 60. NEUTER GENDER included in masculine, 14. NEUTRAL PAPERS in marine insurance, implied warranty of, 2688. NEWSPAPER PUBLICATIONS. See tit. Privileged Publication. NIECES. See tit. Nephews. NOMINAL DAMAGES. See tit. Damages. NON-NEGOTIABLE INSTRUMENT transferability, 1459. NON-PROFIT CO-OPERATIVE. ETC., ASSOCIATIONS. See tit. Co-operative Agricultural, etc., AsHOciatiouN. NON-PROFIT CO-OPERATIVE CORPORATIONS. See tit. Co- operative Corporations. NON-RESIDENT adoption proceedings by, 224, 226. alien inheriting, claim of to be made, when, 672. assignment for creditors. See tit. Assignment for Benefit of Creditors. transfer of stock by. See tit. Stock, Transfer of. as to, generally, 326. "NORTH." See tit. Deeds. NOTARY PUBLIC acknowledgment may be taken by, 1181, 1182. in the state, 1181. out of the state, 1182. out of the United States, 1183. bill of exchange, payable at office of, when, 3176. presented by, when, 3226. presented to, when, 3188. making protest, must give notice, how, 3229. offer of performance to, 1487. protest by, how made, 3226. 1874 i INDEX. [References are to sections.] NOTE. See tit. Negotiable Instrument. NOTICE. See tits. Actual Notice; Constructive Notice. abandonment of ship to insurer, 2730. abatement of nuisance for, 3503. action, not necessary before but actual, what is, 18. actual or constructive. IS. adverse claim, to deposit, 1825. agent to, is notice to principal, when. 2332. appropriation, of water, as to, 1415, 1416. assessment, of stock, 335-341. by carrier where freight not delivered. See tit. Carrier of Property. as to, 2120. carrier, necessary to in stoppage in transitu, 3079. change of name, as to, and sufficiency of, 2454. change of place of business by corporation, notice on, 321a. consolidation, of mining corporations, as to. 587a. constructive. See tit. Con.structive Notice. delay in, waived how, 2636. delinquent co-owners of mining claim, to, 1426o. depositary, must be given by, to real owner, when, 1826, 3079. directors and stockholders to post, 320. dishonor of. See tit. Neg-otial»le In.struuients. duty of gratuitous depositary, termination by, 1835. either actual or constructive, 18. ejectment without, 793. election of directors, 302. filing of inventory of wife's property, as a, 166. form of, 3143. freight, of arrival to be given to consignee. 2120. of storage of, to be given to consignee, 2121. hirer of personal property, repair by after. 1957. of real property, repair by after, 1942. hiring, may be terminated by, 1946. innkeeper exempted from, how. See tit. Innkeeper. inquiry, what sufficient to put one on. See tit. Con.sirin'iU o Notice. in quo warranto proceedings against corporation, 315. instruments, purchaser with, effect, 1228. insurance, of loss under, 2633. defects in may be waived, 2635. lease, change of term of by, 827. letter of credit, to writer of to be given, when. 2866. life insurance policy, to be given on transfer of, 2765. not necessary, when, 793. of appropriation of waters, 1415, 1416. 1875 i m INDEX. .-^ [References are to sections.] NOTICE (continued). of assessment of stock. See tit. A»«sessiueiit of Stock. of dislionor of negotiable instrument, by whom to be given, 3142. of hearing of petition to sell homestead, 1247. of meeting of board of directors. See tit. Directors, Board of. of meeting of corporation, 302. a^ to .remove directors, 310. 5 of partnership dissolution, 2453, 2454, 2509. of renunciation of profits, effect of, 2417. of thing found, 1865. pledge, as to sale of, 3002. principal, notice to agent is notice to, when, 2332. purchaser for value without, rights of, 856, 869. record of conveyance as, 1206. of assignment of mortgage. See tit. ^iortgage. of instrument as, 1213. of intention of re-entry, 791. of place of delivery, 1756. record of sale, to depositor, when, 1838. of selection of alternatives, 1449. served on tenant to be delivered to landlord, 1949. stockholder. See tit. Corporations. tenancy at will. See tit. Tenancy at Will. tenant to give landlord, when, 1949. terminates employment, when, 1996, 1997. to delinquent co-owner, 1426o. to tenant at will, to quit, 790. trustee by, of adverse interests, 2233. unrecorded instrument, not notice to public but void between parties, 1217. NOTICE OF LOSS. See tits. Fire InMiirauep; Insurance; Life and Health Insurance; Aliiriue Insurance. NOTICE TO aUIT. See tit. Ejectment. as to, 1946. NOVATION a contract, 1532. as to what is, 1530. definition of, 1530. is a contract, 1532. modes of, 1531. rescission of, 1533. NUISANCE abatement action not precluded by, 3484. does not preclude action for damages for, 3484. not to affect right to damages, 3484. 1876 INDEX. [References are to sections.] NUISANCE abatement (continued). of private, notice, 3501. when allowed, 3502. of public, 3491-3494. by whom, 3494. how, 3495. action for public nuisance, 3494. definition of, 3479. indictment for a, 3491, 3492. information for a, ^3491, 3492. lapse of time does not legalize public nuisance, 3490. notice to abate, 3503. roots projecting- into soil, 834. private abatement of, when allowed, 3502. notice required, when, 3503. action, to abate public, 3494. definition of, 3484. remedies for, 3501. what is, 3481. public abated how, 3495. action for, 3494. definition of, 3480, 3493. how abated, 3495. how regulated, 3492. lapse of time does not legalize, 3490. private action for, 3493. regulated how, 3492. remedies against, 3491, 3493. time does not legalize, 3490. what is, 3480. remedies for private nuisance, 3501. for public nuisance, 3493. successiv^e owners liable for, 3483. time of existence does not legalize public, 3490. what not deemed a nuisance, 3482. NUNCUPATIVE WILL. See tit. VVilLs. how executed, 1288. probate of, 1291. proof of, 1290. requisites to validity of, 1289. OATH definition of, 14. 1877 INDEX. [References are to sections.] OATH (continued). of liomestead appraisers, 1250. of person solemnizing marriage, administering by, 72. person taking acknowledgment, administering by, 1201. OBI^IGATIOIVS. See tits. (oiitrsM-t.s; Extinction of Obligation.s. accord of. See tit. Accord sunl Satisfaction. act of God, effect of on. See tit. Act of Goil. alteration of, effect. See tit. Contracts, alternatives as to, 1448. indivisibility of, 1450. nvillity of one or more, 1451. right of selection, 1448. lost how, 1449. application of payment. See tit. .\|»i»llcation of I'aymcnt. apportionment of covenants, 1467. ariNc by operation of law, when, 1428. how, 1428. as.sumption of, acceptance of benefits implies, 1589. conditional as to, generally, 1434. conditions concurrent, 1437. conditions precedent, 1436. performance of conditions when essential, 1439. what are, 1438. kinds of, 1435. performance of concurrent conditions, 1437, 1438. conditions involving forfeiture, how construed, 1442. covenants. See tit. Covenants Itiinniiif; with I.and. created how, 142S. definition of, 1427. enforcement of, 1428. how incurred and enforced, 1428. impossible or unlawful conditions void, 1441. interpretation of, general rules as to, 1429. joint and several, 1430. apportionment of, 1467. contribution between joint parties, 1432. when joint, 1431. when joint, 1431. apportionment of, 1467. extingrolMlinient of by offer of performance, when, 1485-1492. by performance, 1473-1479. forfeiture, how construed, 1442. imposed by law. See tit. Obliie;ations Im|)o.sed l)y Law. as to, generally, 1708. 1878 INDEX. [References are to sections.] OBLIGATIONS (continued). infant cannot disaffirm, wlien, 37. interest, stopped by offer to perform, 1503. joint aud several effect of release of one, 1543. joint, when, 1431. presumption in favor of, 1431. several, when, 1431. law. See tit. Oblija^atioiiM Imposed by La^v. imposes what, 1708-1717. operation of, crec^ted and enforced by, 1428. mistake. See tit. Mtstake. non-negotiable instrument may be transferred, 1459. covenants running with land, 1461. for benefit of property, 1462. to pay rent, 1463. what are not, 1466. what constitutes lease running with land, 1464. novation. See tit. Novation. offer of performance and effect of, 1485. payment. See tit. Payment. pecuniary extinguislied by tender, when, 1500. performance of. See tit. Extinction of Obligatlon.s by Per- formance. property as to, 1458. receipt, right to require on performance of, 1511. refusal to accept performance. See tit. £}xtiug-iiiNhnient «»f Obligation by Performance. release extinguishes, 1541. satisfaction, definition of, 1523. part performance in, effect of, 1524. statute of frauds in relation to, 1624. substitution of new. See tit. Novation. as to effect of, 1531. substitution of parties, 1531. transfer as to, generally, 1458. covenants running with land. See tit. Co^enant.s ItiiiiiiinK v«-ith Land. as to generally, 1468. of burden of, 1457. of non-negotiable instrument, 1459. of obligations, rights of, 1457, 1458. of rights arising out of, 1458. offer of performance, waiver of obligations of, 1501. unlawful conditions, effect of, 1441. when performance excused, 1440. waiver of obligations on offer of performance, 1501. 1879 INDEX. [References are to sections.] OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS agency. See tit. Ageney. carriage. See tit. Carrlase. ■ i deposit. See tit. DepoMlt. I exchange. See tit. ExolianKi'- guaranty. See tit. Giiarant.v. liiring. See tit. Hiring;. indemnity. See lit. Indemnity. insurance. See tit. Insurnnoc. lien. See tit. Lien. loan. See tit. Loan. negotiable instruments. St-e tit. NcKotinblo In,Htriinn'iif Oblisa- tiou. OFFICER lien of, 3057. of corporations. See tits. Corporate Powers; Cor|»oration.H. OFFICERS joint authority of, constructive, 12. OLOGK.\PHIC WILL. See tits. Holoi?rapiile Will: Wills. definition of, 1277. OMISSION ■* in wills, 1340. 1880 INDEX. [References are to sections.] OPERA-HOUSE. See tit. Theater. damages for wrong-fully excluding from, 53. OPINION EVIDENCE. See tit. Wills. OPPRESSION avoids contract, 1567-1569. exemplary damages for, 3294. interest allowed as damages in case of, 3288. OPTION as to delivery, notice to be given of election, 1756. as to place of performance, 1489. how waived, 1756. i injunction to prevent exercise of, not granted, 3423. of beneficiary, in breach of trust, 2237. of owner, on confusion of goods, to take value or thing, 1032. of payee, as to payment, 3090. of selection between alternatives, 1448-1476. waived, how, 1756. OPTIONAL CONTRACTS. See tit. Contract.s. ORAL OBLIGATION. See tit. Statute of Frauds. ORAL TRANSFER. See tit. Transfer. ORDER directing sale of homestead, when made, 1254. permitting sale of homestead of insane person, 1269c. respecting custody and support of children in divorce, 138. ORPHAN adoption of. See tit. Adoption. apprenticing. See tit. Master and Apprentice. ORPHAN ASYLUM committing children to, 607g. establishment of by corporation, 595. OSTENSIBLE AGENCY. See tit. Agency. as to, 2300. OSTENSIBLE AUTHORITY. See tit. Agent. OTHER LIENS of banker. See tit. Banker. as to, 3054. of factor. See tit. Factor. as to, 3053. of judgment. See tit. Judgment. as to, 3058. of loggers, 3065. lien ceases, when, 3065. upon what lien subsists, 3065. of mechanic. See tit. Mechanic's Lien. as to, 3059. of officer. See tit. Officer. as to, 3057. 1881 INDEX. [References are to sections.] OTHER LIENS (continued). of person in charge of stallion, 3062. action to enforce lien, 3064. claimant must file verified claim, 3063. of purchaser of real property, 3050. of seamen. See tit. Senmen. as to, 3056. of seller of personal property. See tit. Personal Property. agio, 3049. of seller of real property. See tit. Vendor's Lien. as to, 3046. contract transferred, lien waived, when, 3047. extent of lien, 3048. transfer of contract waives lien, when, 3047. of workingmen, etc., 3061. on personal property for alteration and repairs, 3052. on personal property for services performed, 3051. on ships. See tit. Ships. as to, 3060. on threshing machine, etc., 3061. OVER-INSURANCE. See tit. Insurance. OWNER. See tit. Sliips anrt Sliippin^. OWNERSHIP. See tit. Products of tlie Mind. accumulations. See tit. Accumulations. alien inheriting must claim witliin what time, 672. as to, 980. as to who is owner. 669. conditions, 707. precedent or subsequent. See tits. Conditions Precedent; Conditions Subsequent. conditions fixing time of enjoyment, 707. future interest, when defeated, 739. how defeated, 740. takes effect on future happenings, when, 742. when not defeated, 741. joint interest, what is, 683. modification of ownership, 678. absolute or qualified, 678. absolute when, 679. of several persons, 682. what is, 684. property of the state, 670. qvialified ownership, 680. rights of owners. * See tit. Ri^lits of Owners. several ownership, what is, 681. suspension of restricted, 770. termination of, 739-749. who may own property, 671. 1882 i INDEX. [References are to sections.] (»w.m:k.ship in sKVKn.\i/rv absolute, what is, fi79. qualified, what is, 680. what is, generally, 681. PAHEXT AMJ CHILD abandonment of child by parent, forfeiture of guardiansliip by, 246. abduction of child, 49. abuse of child by parent, remedy for, 203. action for exclusive control of children, 199. adoption. See tit. Adoption. adult children, compensation for support of, 210. allowance to parent out of child's prnpiTty for its main- tenance, 201. apprenticeship of child. See tit. Ma.ster aiiil AiMireiitiee. authority of parent over child ceases, wiien, 204. child born before wedlock becomes legitimate, when. 21.'). child's property, parent cannot control, 202. children, action for exclusive control of, 199. born after dissolution of marriage, 194. support and maintenance of. See tit. Divorce. compensation for support of adult children, 210. custody of child exclusive, when husband or wife may claim, 214. in general, 194. of annulled marriage, 84. of illegitimate child. 200. of legitimate child, 197." relinquishment of, 211. when parents are living apart, 198. wife may obtain, when, 214. decree in action for exclusive control of children, 199. domicile of child, determined by parent, 213. education of children, obligations of parents, 196. emancipation of child, 211. guardian for minor children, appointmriU. effect of, 20 1. guardianship. See tit. Giiardiau iiud Wnrd. husband not bound to support eliiUlren i.>f wife by former mar- riage, 209. legitimacy of cliiid born after dissolution of marriage, 19 1. born in wedlock, 193. born of void or dissolved marriage. 194. marriage works, wlien, 215. who may dispute, 195. legitimatized, child born out of wedlock is, by marriagre of parents, 215. 1883 INDEX. [References are to sections.] PARENT AND CHILD (continued). liability for necessaries supplied to child, 207. when not liable, 208. marriage by infant, terminates parental authority, 204. neeessarieM furnished by parent, child's agreement to pay, 206. liability for supplied to child, 207. parent not liable for, when, 208. third person may furnish child with, when, 207. necessaries, liability for, supplied to child, 207. parent cannot control property of child, 202. parental abuse, remedies for, 203. parental authority, ceases when, 204. posthumous children. See tit. Po.«*tluimoiiN Children. reciprocal duties of parent and children in maintaining each other, 206. reciprocal duty to support, 206. relinquishment of custody and services of child, 211. remedy where parent dies without providing for support of child, 205. residence of minor child, parent may determine, 213. services of child, relinquisliment of, 211. stepfather, rights and liabilities as to, 209. support furnished child, wlien parent not liable, 208. Niiitport of child enforced, when, 203. obligations for, 196. support, obligations of parents, 196. -«S parent not liable for of children, when, 208. 4 where parent dies witliout providing for, 205. i wages of minor child, who entitled to, 212. [ ward, marriage of, effect, 20. "j wife may obtain custody of minor children, when, 214. TAKOL CONTRACT. See tit. !!»tntiite o£ Frauds. PAIIOL. EVIDENCE. See tit. Evidence. PAROL OHL.1GATION. See tit. .Statute of Frauds. PART PAYMENT. See tits. Joint Obligors; Payment. PART PERFORMANCE by grantor, acceptance by principal, effect of, 2822. effect of, 1477. extinguishment of obligation by, 1524. lien not extinguished by, when, 2912. makes oral contract for sale of land valid, when, 1741. offer of, effect, 1486. parties, in suit for duplicate of lost, etc., certificate of stock. 328. PARTIAL INSANITY. See tit. Wills. 1884 INDEX. [References are to sections.] PARTITIOX of easements, 807. PARTNERSHIP accounting by partners, 2412. application of partnersliip property to payment of debts, 2405. as to what constitutes, 2395. certificate of partnership, executing- and filing, 2468. new, to be filed on change of partnership, 2469. change of membership, filing new certificate, 2469. compensation for services of partner not allowed, 2413. debts of, application of property to, 2405. duration of partnership, 2449. foreign partnership, style of, 2467. formation of partnership, 2397. general partneriihip as to what is, 2424. authority of individual partner, 2429. general partner may sue and be sued, 2492. in what business partner may not engage, 2436. partner's acts in bad faith, ineffectual, when, 2431. power of majority of partners, 2428. profits of individual partner belong to firm, when, 2435. what authority partner has not, 2430. good faith to be observed between partners, 2411. in what business partner may engage, 2437. liability of partners to third persons, 2442. for each other's acts as agents, 2443. no liability unless held out as partner, 2445. of one held out as partner, 2444. liquidation power of partners after dissolution, 2458. power of partners in liquidation, 2461. what partners may do in liquidation, 2462. who may act in liquidation, 24'59. who may not act in liquidation, 2460. losses, division of implied, when, 2404. mining partnership. See tit. Mining PartnerMlilp. mutual liability of partners to account, 2412. mutual obligation of partners, 2410. notice of change of name, 2454. notice of termination of partnership, 2453. partial dissolution, 2451. partner entitled to dissolution, when, 2452. partner transacting business must account to firm, when, 2438. partner's share in profits and losses, 2403. partners trustees for each other, 2410. profits and losses, partners share in, 2403. 1885 INDEX. [References are to sections.] PARTNERSHIP (continued), property of, 2401. partner may require application to debts, 2405. partner's interest in, 2402. ship-owners as partners, when, 2396. what property is by presumption, 2406. special partnership, 2477. acknowledgment and record, 2480. aflfiSavit as to sums contributed, 2481. alteration and dissolution, 2509. dissolution of and notice required, 2509. name of special partner used, when, 2510. new special partner may be admitted, how, 2508. special partner becomes general, when, 2507. certificate to be publisiied, 2483. affidavit of publication to be filed, 2484. certified statement. 2479. false statements in acknowledgment, 2480. formation of, 2477. liability of partners, 2500. of special partner, 2501. of special partner for unintentional act, 2502. who may question existence of special partnership, 2503. of what consists, 2478. partnership completed, when, 2482. powers, rights, and duties of partners, 2489-2491. business to be done, by whom, 2489. interest to special partner, 2494. preferential transfer void, 2496. -^ profits of, 2494. ' special partner may advise, 2490. may loan money to, 2491. position in case of insolvency, 2491. transfer void where pveferential, 2496. withdrawal of capital, 2493. results of, 2495. renewal of, 2485. style of foreign partnership, 2467. total dissolution of partnership, 2450. use of fictitious names, 2466. duties of those using, 2466. what is, 684. what property is partnership property by presumption, 2406. PARTNERSHIP INTEREST what is, 684. PARTNERSHIP PROPERTV. See tit. Partnership, Property of. PARTY WALLS right to use wall as, 801. 1886 INDEX. [References are to sections.] PASSENGERS. See tit. Cominun Carriers of PerHons. damages for refusal to carry. See tit. Dainageo. as to, 482. duty of carrier to accommodate and transport, 481. duty of carrier towards, g-enerally, 2100-2104. ejection for refusal to pay fare. See tit. Ejection for \oii- payinent of Fare. on construction 'trains, 483. on freig-ht trains, 483. inside room for, 483. payment of fare. See tit. Pare. power of shipmaster over, 2038. printed rules and regulations governing, 484. refusal to pay fare, ejection, 487. ship, power of master over passengers on, 2038. tiel£et.s conditions in limiting liability of carrier. 2176. good for six months, 490. how issued, 490. to be provided with seats, 2185. treatment of by carrier for hire, 2103. PASTURE lien for, 3051. right to, 801, 802. use of homestead as for neighbor's stock, effect. See tit. Homestead. PATENT effect of recording without acknowledgment, 11 GO. PAWN. See tit. Pledse. PAYMENT. See tit. Extinctlnn of Obliu^ation. admissions of party, 1473. agent, to, effect of, 2335. application of, 1479. by one of joint creditors. 1475. by one of several joint debtors, 1474. defined, 1478. direction of creditor is, when, 1476. effect on accessory of obligation of offer of, 1504. for lionor how made, 3205. when made, 3203. indemnity necessary to claim, when. 277S. liquidating debt by, of less than due. I.'i24. negotiable instrument. See tit. Nej;"Halile lii.«Iark. transfer of title under sale, 1140. what Is, 663. what operate as transfer, 1136. writings, private, belong to whom, 980, 985. PERSOIVAL REL.ATI01VS protection of, 49. PERSOXAIi SERVICE. See tits. Agents; Employer and Em- ployee; >Jaster and Servant. must be performed by joint obligors, 1475. PERSON OF UNSOUND MIND. See tit. Coitraet by Person of Unsound Mind. contract by persons without understanding, 39-42. powers of persons whose incapacity has been adjudged, 40. PEW is a servitude, 801, 802. PHRASE construction of, 13. PILOT. See tit. Sliip.s and Shipping. PIER. See tit. Uridge.s, Ferry, Wharf, Chute, and Pier Corpo- rations. 1890 INDEX. [References are to sections.] PIONEER SOCIETY land that may be held by, 596. PLACE OF BUSINESS change of by corporation, 321a. procedure on change of location, 321a. resolution of change, 321a. PLACER CLAIMS. See tit. Mines. location of, 1426c. record of location of, 1426d. PLAT. See tits. Instrument in Writing; Map. PLEADING AND PRACTICE. See tit. Libel. PLEDGE apparent owner by one who is, 2991. contract is to be deemed a pledge, when, 2987. definition of, 2986. delivery essential to validity, 2988. debtor, misrepresentation as to value of thing pledged. 2999. demand, waiver of, 3004. factor, may not, 2368. foreclosure of right to redeem, 3011. further pledge, 2999. gratuitoiis pledge-holder, 2998. as to liability, generally, 2998. exonerated, how, 2995. in case of thing pledged, effect of, 2990. increase of thing pledged, ownership of, 2989. lien, acceptance of possession of thing, 2991. lienor may pledge property, to what extent, 2990. misrepresentation by debtor of value of thing pledged, 2999. must enforce rights of pledgee, 2996. obligation of for reward, 2997. negotiable instrument, pledge-holder not exonerated, when, 2995. notice of sale to pledgeor, 3002. waiver of notice, 3003. obligation of pledgee and pledge-holder for rownr.l. 'JOOT. owner cannot defeat pledge, when, 2991. pledge-liolder as to who is, 2993. gratuitous, 2998. must enforce pledgee's right, when, 2996. 2997. obligations of, 2995. pledge-lender, what is, 2992. when may withdraw property, 2994. pledgee may foreclose, right of redemption, 3011. may purchase, when, 3010. 1891 INDEX. [References are to sections.] PLEDGE pledgee (continued), may sell, when, 3000. must demand performance, when, 3001. obligations of, for reward, 2997. sale of securities by, 3006. real owner, pledge by apparent owner cannot be defeated by, 2991. sale auction at, 3005. before claim is due, 3009. demand, prior, necessary, 3001. must be by auction, 3005. notice of must be given to pledgeor, 3002. of securities by pledgee, 3006. on demand of pledgeor, 3007. pledgee may purchase, 3010. may retain proceeds, when, 3009. surplus payable to pledgeor, 3008. waiver of demand, 3004. of notice, 3003. when pledgee may have, 3000. surplus to be paid to pledgeor, 3008. transfer is, when, and when a mortgage, 2924. \Ysii\er of demand, 3004. of notice of sale, 3003. when pledgee may sell, 3000. when pledgee must demand performance, 3001. PLEDGEE. See tit. Pledge. PLURAL includes singular, 14. POLICE members and officers of society for prevention of cruelty, etc., to act as, 607f. to aid societies for prevention of cruelty, etc., 607c. POLICE COURTS appeal from, undertaking on, 978a. POLICY acts avoiding policy, 2610. policy may provide for avoidance, 2611. agreement not to transfer, 2599. breach witliout fraud, 2612. definition of, 2586. effect of receipt, 2598. evideuee of policy inay provide for, 2611. what acts avoid, 2610. 1892 INDEX. [References are to sections.] POLICY (continued). general terms of, 2591. insurance by agent or trustee, 2589. insurance by part owner, 2590. open and valued policy, 2594. open policy, what is, 2595. valued policy, what is, 2596. receipt, effect of, 2598. running policy, what is, 2597. successive owners, 2592. transfer, agreement not to, 2599. transfer of thing insured, 2593. warranties, 2603. express or implied, 2603. future, as to, 2608. must be in policy, 2605. no particular word necessary, 2604. past or present, as to, 2606. performance excused, when, 2609. what must be specified in, 2587. whose interest is covered, 2588. POLICY OF INSURANCE, See tit. Iiisiiranoe. POS.SESSION. See tits. Constructive Notioe: Notice. adverse owner, transfer by, 1047. banker's lien, is dependent on, 3054. bottomry lien, independent of, 3027. covenant as to, implied in letting, 1927, 1950. damages for unlawful, as to, 3334. factor's lien, dependent upon, 3053. gift, of necessarj-, 1147. lease, renewal of by continued, 1945. legacies as to obtaining, 1363. lien for service, dependent upon, 3051. of purchaser, is independent of, 3051. of vendor, is dependent on, 3049. niort^agrec not entitled to usually, 2927. when entitled to personal property, 2906. officer's lien is dependent on, 3057. pledge. See tit. Pledge. not necessary there should be change of, 2988. proceedings to secure, 792. seamen, lien of independent of, 3056. shipmaster, lien of independent of, 3055. summary proceedings to obtain, 792. transfer as security, deemed a pledge, when, 2987. vendor's lien, independent of, 3046. 1893 INDEX. [References are to sections.] POSSIBLE contract must be, 1596. ■what is deemed to be, 1596. POSSIBILITY as to transfer of, 1045. POSTHUMOUS CHILD. See tit. Unborn Child. as to, 698. birtli of, future interests defeated by, when, 739. deemed living- at time of death of parent, 1403. entitled to take, when, 698. property rights of, 698, 739. succession by, 698, 1403. unprovided for to succeed, 1306. POWEIt delegation of by minor, 33. execution of, 860. POWER OF APPOINTMENT effect of on future estate, 781. execution of instruments under, 1095. knowledge of by married woman, 1094. POWER OF ATTORNEY of married woman. See tit. Power of Attorney of Married Woman. revocation of, 1216. to convey realty, 1094, 1096. to execute mortgage, 2935. to gratuitous employee, 1094. POWER OF ATTORNEY OF MARRIED WOMAN acknowledged, how, 1094. as to, 1094. husband may be attorney in fact, 1094. POWER OF SAI^ when mortgag-ed, 2932. POWER TO DEVISE. See tit. Wills. how executed by terms of will, 1330. POWERS. See tit. Corporations. of co-operative agrictiltural, etc., associations. See tit. Co- operative Agricultural, etc., Association. of co-operative corporations, 653x. PRECATORY TRUSTS. See tits. Trusts; Wills. PRECATORY WORDS. See tit. Wills. PREFERENCE. See tit. Debtor and Creditor. in assignment for benefit of creditors, 3451-3457. of creditors in general, 3432. of messages, 2209. payment in, 3432. PREMIUM. See tits. Homestead Corporations; Insurance. 1894 I INDEX. [References are to sections.] PRESCRIPTION adverse possession. See tit. Adverse PossesHlon. as to islands, 1016. as to title by, 1007. PRESENT INTEREST what is, 689. PRESIDING ELDER. See tit. Religrlons Corporations. as to generally, 602. title acquired by, 1001, 1007. PRESUMPTION as to adequacy of damages as relief for breach of contract to convey, 3387. as to bill dishonored, 3135. as to extinction of contract from cancellation, 1699. child, relinquishment of control over, 211. collision, on violation of rules of navigation, 970. community property, 164. consideration for negotiable instrument. See tit. Negotiable Instrnnient.s. as to, 3104. in written instrument, 1614. contract, uncertainty of, 1649, 1654. conversion, damages for, 3336. creditor, retaining part performance, 1477. damages adequacy of relief by, 2933. for conversion, 3336. date of delivery. See tit. Date. depositary, as to fault of, 1836. divorce. See tit. Divorce. as to residence, 129. from lapse of time, 125, 126. fee simple, as to passing of, 1105. fraud repels all, 3441. gift causa mortis, in a, 1150. grant, as to the time of delivery, 105G. hiring, as to. Sec tits. Hiring:; Hiring: of I'or.soiml: Ilirlim *>t Real Property. in certain cases in action for divorce, 125. in joint obligations, 1422. insurance. See tit. Insurance. as to knowledge of prior loss, 2671. as to representations, 2574. lease as to renewal of, 1945. as to term of, 1943. legitimacj^ of child, as to, 193. 1895 INDEX. [References are to sections.] PRESUMPTION (continued). obligation being joint, as to, 1430. on certificate of s}iipmaster favor of seamen, 2059. origin of ambiguity in contract, as to, 1649, 1654. partnership property, as to, 2406. real property, as to term for whicli hired, 1943. rebuttal of, 126. reforniation of contract, in, 3400. servant, as to term of hiring, 2010, 2011. ship as to actual loss of, 2706. as to managing owner's compensation. 2072. transfer without delivery of personal property, as to fraud- ulency, 3440. undue influeiice as to of husband. See tit. Husband and W'Ife. as to of trustee, 2235. PREVEXTION by in junction. See tit. Injunction. of performance, as to effect of, 1511-1515. of reducing contract to writing, enforcement, 1623. preventive relief, as to when granted, 3274, 3366. PREVENTIVE KEI^IEF. See tit. Injunction. as to generally, 3420-3423. how given, 3366. how granted, 3420. not allowed to enforce penalty, 3369. PRICE. See tit. Sale. PRIEST. See tit. Religious Corporation. as to, 602. PRINCIPAL bound by instrument intended to bind him, when, 2337. for acts done under merely ostensible authority, 2334. how affected by acts of agent within scope of authority, 2330. liability. See Responsibility, this tit. where exclusive credit given to agent, 2335, 2336. notice to agent is notice to, when, 2332. obligation where agent exceeds authority, 2333. responsibility for negligence or omission of agent, 2338. for wrongs wilfully committed by agent, 2339. when bond by incomplete execution of authority, 2331. When notice to agent is notice to, 2332. PRINCIPAL, AND AGENT. See tits. Agent; Principal. PRINTING the word "writing" includes, 14. PRIOR GRANT. See tit. Appropriation. 1896 INDEX. [References are to sections.] PRIORITY of bottomry liens, 3028. of different employments, 1988. of liens according- to their date, 2897. upon sing-Ie and several funds, as to, 2899. of mortgage for purchase price of land, 2898. of record, priority as to right, 1214. of surety's property over principal's, 2850. PRIVILEGED CO>I3irxiCATION. See tits. Privileged l^iihliin- tion; Slander. enumeration of, 47. PRIVILEGED PUBLICATION. See tit. Lll.ol. as to what is, 47. PROBATE. See tit. Will. PROCESS on foreign corporation, service of, 404. property in, 980-985. PRODUCTS of thing hired, 1926. PRODUCTS OP THE 3IIXD effect of publication of, 983. how far subject to ownership, 980. joint authorship, 981. subsequent authorship or invention, 984. transfer of, 982. PROFESSIONAL MEN. See tit. Libel. PROFILE AND MAP OF RAlLltOAD. See lit. Map. PROFITS. See tit. Marine In.siirance. insurable interest in, 2664. PROFITS AND LOSSES. See tit. Part ner.Hliip. partner's sliare in, 2403. PROMISE TO MARRY, CONTR.VCT, BREACH OP lireach of, damages for, 3319. PROMISSORY NOTE. See tit. Negotial>Ie In.strumentH. bill of exchange converted into, when, 3246. certain instruments promissory notes, 3245. certain sections of code applicable to, 3247. definition of, 3244. delay in presentment, effect of. 3248. effect of delay in presentment. 3248. PROMOTER. See tit. Corporations. PROOF OF EXECUTION certificate of officer must show, what, 1200. evidence of handwriting must prove, what, 1199. handwriting may be proved, when, 1198. how instrument improperly certified may be corrected, 1202. 1897 INDEX. [References are to sections.] PROOF OF EXECUTION (continued), judgment proving instrument, 1203. effect of, 1204. subscribing witness must be personally known to officers, 1196. when instrument not acknowledged, how made, 1196. • witness must prove, what 1197. PROOF OF IXSTRUMENT. See tit. Ackoowledgments. PROPELLING POWER of street railroads, 497, 510. PROPERTY absolute ownership of, 679. accession to. See tit. Accession. accumulation of, 724-726. acquisition of, modes of, 1001. alien's right to take. See tit. Aliens. alienation of. See tit. Alienation. restraints on, void, 711. alimony, liability for, 141. alternative future interests, 696. appurtenances. See tit. Appurtenances. as to what is, 654. chattel interests, what are, 765. classes of, 657. common definition of, 685. interests *in, 682. what interests are, 686. community. See tit. Community Property. conditions. See tits. Conditions Concurrent; Conditions Prece- dent; Conditions Sulisequent. confusion of goods, as to effect of, 1025, 1030. contingent interest in, what is, 695. corporation, as to right of to acquire, 360. definition of, 14, 654. division of by husband and wife on separation. See tit. Hus- band and ^Vife. divorce. See tit. Divorce. disposition of property, 146, 147. enjoyment, as to fixing time of, 707. entireties, tenants by, husband and wife are, 683. fixtures. See tit. Fixtures. found property, claimant of must prove title, 1871. future estates in, quality of, 699. future interests in defeated how, 740. defined, 690. 1898 INDEX. [References are to sections.] PROPERTY future interest.s in (continued). in the alternative, 696. not void, when, 697. two or more, 696. vested or contingent, 693. what recognized as, 703. g-oo^ will. See tit. Good Will. holding by co-operative corporations, 653x. husband debts of, not liable for, 171. property of, not liable for wife's debts, 170. support of, when liable for, 170. husband and wife. See tit. Husband and Wife, income as to accumulation of, 722-733. defined, 748. increase of, as to ownership, 732. interest, as to time of creating, 688-742. inventions, as to right in, 980, 984. in what property may exist, 655. islands, as to ownership of, 1016. joint interest in as to, 683. defined, 683. kinds of property, 657. land. See tit. Land. letters, private, to whom belong, 985. limited interest, what is, 692. modes of acquisition, 1000. by accession, 1000. See tit. Aeees.sion. by exercise of the power of eminent domain, 1001. by occupation, 1000. See tit. Occupancy. by prescription, 1007. See tit. Prescription. by succession, 1000. See tit. Succession. by transfer, 1000. See tit. Transfer. by will, 1000. See tit. Will. occupancy, as to title by, 1006. owner, all property has, 669. oirnershlp absolute or qualified, 678. absolute, when, 679. classes of, 682. definition of, 654. of interest, as to time of creation, 688. several interest, what is, 681. termination of, 739-742. time of creating, 749. 1899 INDEX. [References are to sections.] PROPERTY (continued). parent's support, when liable for, 201. partnership interest in, what is, 684. perpetual interest in, what is, 691. personal property. See tit. Per.sonal Property. posthumous children. See tit. Postliiinious Children, right' in property, 698. prescription, title by, 1007. present interest in, what is, 689. private writings, as to ownership of, 985. products of the mind, ownership of, 980-985. purchase of by co-operative agricultural, etc., associations, 653q. qiialifled interest, as to, 678. ownership, as to, 680. real property. See tit. Real Property. right arising out of obligation, is property, 1458. separate. See tit. Separate Property. of spouses, 162, 163. several ownership of as to, 681. definition of, 681. kinds of, 682. state *■ owns, what, 670. right to hold as private proprietor, 669. termination of ownership of, 739-742. of tenancy at will, notice necessary, 789, 790, time interest as to, 688. of creating ownership of, 749. title deeds, as to, 994. trade-mark. See tit. Trade-Mark. vested future interest, what is, 694. what may exist in, as to, 655. who may own, 671. wife, right to dispose of, 162. writings, private, as to propertj^ in, 980-985. PROPERTY RIGHTS. See tit. Husband and Wife. PROPOSAL. See tit. Contract. acceptance. See tit. Acceptance. by performance of conditions, 1584. communication deemed coinpleted, when, 1583. communication of acceptance, 1582, 1900 4 INDEX. [References are to sections.] PROPOSAIi (continiud). notice of acceptance, an to necessity revocation of, 1586. liow made, 1587. qualified acceptance of, 1585. to contract, acceptance, effect of, 1582, 1585. what amounts to an acceptance, 1582. PROTECTION against restraint and injury, 43. of personal relations. See tit. Personnl l{cl:itioiis. as to generally, 49. right to use force for, 50. PROTEST. See tits. Bills; NeRotiable Instrnments. PltOVLSIOXS for domestic use, implied warranty in sale of, 1775. PROVISIONS SIMILAR TO EXISTING LAWS how construed, 5. PROXY as to, 321b. essential to validity of, 3211). maximum period of, 321b. of a married woman, 321b. • revocability of. 321b. void. when. 321b. voting by as to generally, 212. in co-operative agricultural, etc., associations, 653p. PFDMC contracts, interpretation of, against private party, 1069, 1652. deceit upon, as to, 1711. grant. Interpretation of, against grantee, 1069. nuisance. Sec tit. Nuisance. PrnLIC ACCOM MOIJATIOX rights of citizens in places of, .'il. PI ni.IC AMi;SEME\T rights of citizens in places of. 5.1. PI BMC AUCTION in default of bidder corporation may be piinlias. r. ^' ' ■ " " '- ■ sale at, highest l>idder entitled to purchase. 342. IM BMC HIGHWAYS lioundary by. what passes. 1112. I'lBLIC PL.tCES as to rights of citizens in. 53. PUBLICATION assessment notice, as to, 335. delinquent notice of, 339. 1901 INDEX. [References are to sections.] PUBLICATION (continued). of products of the mind, effect on ownership, 983. partners, names of, 2466. partnership of certificate of special, 2482. of c-ljange of name, 2469. of notice of dissolution, 24.53. privilege, definition of, 47. productions of the mind, as to, 980, 984. proof on sale of corporated stock, 348. special partnership of affidavit of, 2484. of notice of dissolution of, 2509. "PUPFING" AT AUCTION as to, 1797. PUNITIVE DAMAGES. See tit. Damages. PURCHASE MONEY lien for, 3046. mortg-ag-e for, priority, 2898. PURCHASER. See tit. U.ses and Trusts. for value and without notice, when, 856. notice. See tits. Notice; Actual anil Constructive. of property by co-operative agricultural, etc., associations^ »-653ci. QUALIFICATIONS of members of co-operative agricultural, etc., associations, 653p. QUALIFIED OAVNERSHIP What is, 680. QUALITY as to in general, 1773. damages for breach of warranty of, 3313. of domestic provisions, 1776. provisions, 1776. warranty of by manufacturer, 1768, 1769. of goods sold by sample, 1776. on executory sale, 1777. QUANTITY warranty of, implied, 1773. QUIET ENJOYMENT as to covenant for. See tit. Covenants. as to generally, 1463. implied in hiring, when. See tit. Hiring:. in executory contract of sale, 1733. QUO WARRANTO. • See tits. Co-operative Business Associa- tions; Corporations. 1902 INDEX. [Referenci'S are to sections.] QUO WARRANTO (continued), as to generally, 358. against co-operative business association, 54. in relation to co-operative agricultural, etc., associations, 653s. in relation to co-operative corporations, 653z. proceedings thereon and respecting corporations, 315. KACECOIKSE rigJit to admission to, damages for refusal, 54. KAIL quality to be used by railroad, 491. KAII.HOAD COIMIS.SIONERS "~ to establish rates and charges, 489. HAILROAD CORPORATIOXS accommodations to be sufficient, 481. acquisition of other lands at crossings. 472. alleys, streets, or water of city may be used, when, 472. amount of bonds or promissory notes to be issued, 45G. annual report to be verified, 480. form of report, 480. assessment and transfer of stofk, 4.'.".. baggage to be checked, 479. damages for failure, 479. bonds, sinking fund to pay, 457. business, how conducted, 479. capital stock to be fixed, 458. certificate of payment of capital stock, l.'.O. certificate of payment of fixed capital stuck, 459. checks to be fixed to baggage. 479. damages for failure to so affix, 479. condemnation. 46S. consolidation witli otiier r.illroad corporation;-. ■ . ... articles of Incorporation .and consolidation, 473. proceedings neces.sary thereto, 473. articles must be filed, where, 473. memorandum of ratification, 473. method of signing articles, 473. subrogation of new corporation. 473. crossing through railroads or highways, acquisition of ad- ditional lands, 472. crossings and Intersections. 469. damages, not liable for any certain cases, 48S. not liabli- for killing stock, wb">n. 485. dauutges recov.-rable by foinpnny. wIu'D. l.S.l. damages resulting from violation «f nibn. 4S4. directors to be elected, when, 464. duties of corporations, 481. 1903 INDEX. [References are to sections.] RAILROAD CORPORATIONS (continued), earth may be taken from state lands, 476. ejectment. See tit. Ejection of Passengers. elevated or underground railroads, franchise granted by whom, 492. petition, by whom signed, 492. enumerated powers, 465. grant not to embrace town lots, 475. to accept real estate, 465. to acquire real estate, 465. to carry persons and freight, 465. to consolidate with other roads, 473. to cross, intersect, etc., other railroads, 465. to enter upon lands to select and survey route, 465. to erect buildings, 465. to establish rules for management of business, 465. to lay out roads and width of, 465. to lease or use another road in common, 473a. to purchase lands, timber, stone, etc., 465. to purchase other roads not in competition, 465. to regulate time and tolls, subject to legislation, 465. to select and survey route, 465. to take grant of state lands, 474. to take wood, stone, and earth from state lands, 476. where may construct road, 465. forfeiture of franchise, as to, 468. by failure to operate, 468. exception, 468. franchise, forfeiture of by failure to operate, 468. highways, crossing of, acquiring additional lands, 472. interest, limitation upon amount of, 456. lands of to revert to state, when, 477. leasing and using another road in common, 473a. map and profile to be filed, 466. must be certified, 466. may borrow money, 456. may change line of road, 467. how new location to be run, 467. may issue bonds, 456. may sell property and franchises to other railroads, 494. competing roads shall not be purchased, 494. debts incurred, not relieved from, 494. fares and tolls shall not be increased, 494. penalty for violation, duty of attorney-general, 494. terms and conditions of sale, 494. motive power, what may be used, 465a. new location of road, how to be run, 467. 1904 INDEX. [References are to sections.] RAILROAD CORPORATIONS (continued). officers of, 454. to wear badges, 488. passenger refusing to pay fare or surrender ticket. See tit. E}jeotion of I'a.sMengrerw. damages for refusal to carry, 482. penalty for failure to provide tickets, 490. printed regulations must be posted, 484. profile and map to be filed, 466. must be certified, 466. rail, quality to be used, 491. railroads, crossing of, acquiring additional lands, 472. rate of charges established by railroad commissioners, 489. copies of rates to be posted, where and by whom, 489. further publication to be made by the board of railroad commissioners, 489. notice of to be served, 489. regulations of trains, 486. action to be prosecuted by district attorney, 486. bell to be rung, 486. liability In damages for failure to observe statute. 486. penalty for neglect to ring bell or blow whistle, 486. whistle to be blown, when, 486. room Inside passenger cars to be furnished, 483. selection of state lands, how proved and certified to, 478. sinking fund to pay bonds, 457. state lands may be granted for use of corporation, 474. grant not to eml)race town lots, 475. selections of, how may be proved and certified, 478. stone may be taken from state lands, 476. street railroads. See tit. .Street KnIIronilN. subrogation of new corporation on consolidation. 473. ticket entitles purchaser to what. 490. penalty for failure to provide, 490. time of running to ho fixed by public notice, 481. transfer of stock. 45.'>. not valid except. 455. using another road In common, 473a. wood, .stone, and earth may be taken frnm state lands, 476. K.\II.RO.%n KE\fB. See tit. FonceM. HATIKK ATIOX of agent's act, 2310-2316. u( eon t root void for want of consent, 1588. voidable. 1588. 2310. partial, becomes total when, 2311. 1905 INDEX. [References are to sections.] RATIFICATION (continued). prejudice of third person, not allowed, 2313. rescission of, 2314. void when, 2312. REAL PROPERTY action for possession of, 3375. agent's autliority to sell includes, what, 2324. boundaries as to, generally, 830. by waters, 830. by ways, 831. right to surface and things above and beneath, 829. effect of transfer conveyance by owner for life or for years, 1108. easements. See tit. Easements. fee simple title passes, when, 1105. grant, how far conclusive on purchaser, 1107. grant made on condition subsequent. See tit. Condition.s Subsequent. as to, generally, 1109. grant of rents, reversions, and remainders, 1111. grant on condition. See tit. Conditions. when absolute, 1110. implied covenants. See tit. Implied Covenants. a^ to, generally, 1113. lineal and collateral warranties abolished, 1115. subsequently-acquired title passes, when, by operation of law, 1106. ways. See tits. Public Higbways; Ways. what easements pass with property, 1104. easements. See tit. Easements and Servitudes. ejectment. See tit. Ejectment. estates in. See tit. Estates in Real Property. as to generally, 818. general provisions as to, 755. how governed, 755. kinds or classes of, 658. land. See tit. Land. lateral and subjacent support. See tit. Lateral Support. lime-trees, 834. obligations of o«-ners as to, generally, 840. ditches, flumes, etc., liability as to, 842. neglect to pay expenses, 843. duty of tenant for life, 840. monuments and fences, 841. ownership. See tit. Ownership. 1906 INDEX. [References are to sections.] REAL, PROPERTY (continued). poiver. Title V, following § 871. execution of, 860. of appointment, effect of, 781. rights and obligations of owners as to, generally, 818-843. rights and remedies on lease for life, 823. rights as to rent. See tit. Rents. of grantees of rents and reversions, 821. of lessees and their assignees, 823. of lessor against lessee and assignee, 822. rights of tenant for life. See tit. Tenant for Life. of tenant for j-ears. See tit. Tenant for Years. on lease. See tit. Lease. servitudes. See tit. Easements and Servitudes. transfer of. See tit. Real Proiierty, Transfer of. to one for money paid by another, 853. trust presumed, 853. trees trunks of which are wholly on land, 833. uses and trusts. See tit. TJ.ses and Trusts. as to generally, 847-871. writ of assistance. See tit. Writ of Assi.stanee. writ of possession. See tit. Writ of Possession. writ of restitution. See tit. AVrit of Itestitiition. REAL PROPERTY, TRANSFER OP as to, 1091. modes of, 1091. requisites for transfer of certain estates, 1091. attorney in fact must execute for jirincipfi I. Sii- tit, Aiior- ney in Faet. as to generally, 1095. by married woman, how acknowledged. 1093. as to, generally, see tit. Married \Vomen. conveyance where name of person has been changed, 1096. form of grant, 1092. power of attorney of married woman, liow acknowledged. See tit. Po^ver of Attorney €>f >larrled Woman. as to generally, 1094. RECITALS. See tit. Deeds. in deed when resorted to, 1068. RECORD of location of mining claim copies of as evidence, 1426q. to be received in evidence, 1426p. of marriage as to generally. See tit. Marriagre. of certificate of, 69a. 1907 INDEX. [References are to sections.] RECORD (continued). of yearly Tvork on mining claims as to generally, 1426m. recorder's fees, 1426m. RECORDATION. See tit. Recording Transfers. fees for. See tit. Recorder, Fees of. in.striHiient deemed recorded, -^vlien fees of, non-payment immaterial, 1171. what instruments to be acknowledged before entitled to, 1162. RECORDER duties of, 1172. fee for recording certificate of residence of corporation, 1163. fees to be indorsed on instrument recorded, 1165. RECORDING TRANSFERS. See tit. Recordation. acknowledgment of proof of instruments. See tit. AcknoDvl- edgment. as to, generally, 1173, 1213. as to what may be recorded, 1158. acknowledginent necessary to record, when. See tit. Aclvnowledgment. as to generally, 1162. certificate of residence of corporation, 1163. certified instrument recorded, when, 1162. :&ees of recorder to be indorsed, 1165. judgment may be recorded without acknowledgment, 1159. letters patent may be recorded without acknowledgment, 1160. location of mining claim recorded without acknowledg- ment, 1159. mortgage to be recorded, 1163. transfer in trust to be recorded, 1164. conveyance defined, 1215. conveyances to be recorded, or are void, 1214. constructive notice, 1163. effect of want of record, 1163. mode of recording. See tit. Record. books of record, 1171. deemed recorded, when, 1170. duties of recorder, 1172. in what oflfice, 1169. transfer of vessels, 1173. recording certified copy of recorded instrument, 1218. unlawful transfers. See tit. Unla-wful Transfers. unrecorded instrument valid between the parties, 1217. RECORDS OF CORPORATION evidence to prove what, 365. how kept, 365. 1908 INDEX. [References are to sections.] RECORDS OF CORPORATION (continued). other records to be kept by certain corporation, 36.5. restoration of. See tit. KeiMHunnce; ReMtoratlon, to contain wliat, 365. REDEMPTION. See tits. Mortftraee Forci-IoNiircs: T«\ Snlen. contract in restraint to, void, 28S!). fruni foreeI<»Nure as to, 2931, 2967. rislit to redeem pledge, 2947. of frsinoliiHe from execution sale of, 392. from lien, 2903-2905. RE-ENTRY rifflit of can lie transferred, 1046. transfer of right to, 1046. when and how to be made, 791. REFEREE in action for divorce, 130. REFORM.VTION. See tits, (out rafts: I) Is: Miirrir.l W ..iii.-ii of contract. See tit. Contracts. presumption as to intent, 3400. rules for, 3401. specific performance of afli r. 3402. REPl'S.\I.. See tits. Dlvoroo; liiiMltniKl niwl Wifr. REGISTRATION. See tit. R(<-oriliitioii. REGISTRY. See tit. SliipN nnil Sliiiiplnc of marriage certificate, 69:1. of .slnp for voyage, 966. REIMIll 11SE>IENT. See tit. FrniKliiU'iil 'rrjinsiiTs. REI.XSl RANCE. See tit. IiiNiirniup. REISSl VNCE. See tit. ReMtoriit ion. of bonds of corporation, 329. of lost certificates of stock, 365. of lost private document or Instrunnnl, 3405. of lost records of corporatiun. 365. REIiATION doctrine of as tipplicd to ai>prnpriatlon of wat>rs. 1418. REI..\TIONSHII* degrees of, liow computed. 1389-1393. half-J)lood. See tit. Ilnlf-lilond. as to right to succeed. 139 1. husband and wife, cannot impair, 159. succession, through illegitlni.i ' • '"*■'■ RELATIVES alien, succession by, 140 4. legacies to, wln-n cliurgeable with debts. 1361. to protect child from personal nbiiac 203. 1909 INDEX. [References are to sections.] RELEASE claims whicli are not affected by, 1542. creditor, liow made by, 1541. debtor, by substitution of, 1531. obligation extinguished by, 1541. of future intere-st as to, 699. extent of, generally, 1542. of guardian by ward, 256. of join debtors, 1543. extinguishes obligation, 1541. of one of several joint debtors, effect of, 1543. RELIEF. See tits. Damage.s; Divorce; Equitable Relief; Nul- .sance. in case of forfeiture, 3275. preventive. See tit. Preventive Relief. species of relief, 3274. specific and preventive. See tits. Specific Relief and Pre- ventive Relief. what granted in divorce, 136. RELIGIOUS BELIEF. See tit. Wills. RELIGIOUS, SOCIAL, AND BENEVOLENT CORPORATIONS. * See tit. Corporations. additional facts, articles to set out, 594. amount of real estate that may be owned by, 595, 596. friendly, etc., societies, 596. annual report to be made and verified by directors, 597. burial plots in grounds of may be sold, how, 598. by-laws. See tit. By-lav»'s. as to, generally, 599. consolidation of debts, 605. new articles to be filed, 605. public notice given, 605. friendly, etc., societies, amount of land may hold, 596. may bond real property, 598. may mortgage real property, 598. may provide, what, 599. may sell real property, 598. member cannot transfer his membership, 601. members admitted after corporation, 600. notice by publication for leave to sell mortgage, etc., 598. number of directors, 593. religious society may become corporation sole, 602. articles of incorporation, to set forth what, 602. certain limitations do not apply, 602. continuation of corporation sole, 602. powers of, 602. 1910 INDEX. [References are to sections.] RELIGIOUS. SOCIAL, AND BENEV. CORPORATIONS (con.), religious society may elect directors and incorporate, 603. by-laws, enactment, repeal, and amendment, 604. certificate of incorporation to be filed, 603. convention, etc., to elect directors, 603. directors, election of, 604. limitations which do not apply to, 604. name, purpose, and term of corporation, 604. property in trust for the society, 603. signature by secretary and president, 604. RELINaUISHMENT of custody and services of child, 211. REMAINDER - as to construction of, 780. contingent, 778. on prior remainder in fee, 772. created, when is, 773. death of devisee before testator, effect of, 1344. definition of, 769. for life upon term, 777. on term of years, 776. owner, right to sue for injury to inlieritaiuo. >s2C,. successive, estate upon, for life, 774. validity of, 764. what title vests under, 781. when created, 773. REMAINDERMAN interest of not affected by death of devisee or legatee bif.>r.- testator, 1344. REMAINDERS AND REVERSIONS. See tit. Hfv«T«loiiM nii.l ReinnlndcrM. certain remainders are valid, 764. construction of certain remainders, 780. contingent remainder in fee, 772. contingent remainder on a term of years, 776. effect of power of appointment, 781. heirs of tenant for life take as purchasers, wlion. 779. limitation of successive estates for life, 774. remainder, contingent In fee, 772. future and contingent estates, liow created. 773. for life, 777. upon a contingency, 778. upon estates for life of third person.s. 775. remedy for injury done to the Inliorltanco. 82f.. REMEDIES. See tit.* Preventive Relief. RENTS AND REVERSIONS riglits of grantees of, 821. 1911 INDEX. [References are to sertlons.l Ili:.\TS, IS«il'BS, A\n PUOFITS aiceptance of rent, r»Mu-wul of h';iM.\ wn. n. i.ii; us to when payable, 1947. covenant to pay, 1462. dependent on life, as to collection of, 825. expr^s trii.st to receive. 857. forfeiture, by lettingr part of room, 1950. k'rant of, 1111. rlK^lil to recover for, 821. Itiiyiiient of remedies by nsHlf^nees of, 822, 823. for recovery of, 822. • rvltude. See tit. Srrvltudc. rin of. Indicated !)y rent. UM."?. ■ bi« made, when. 1947. ' .-hie rent for holding over. 3345. i I list to receive, express, 8.'>7. under lease for life. 824. when payable. 1917. iii:nts, HKVi:itsio\s, .%m» kkmmmiious jipportlonnient ■■'' ' ' ' V as to, nil. KI2P.\IR borrower to make, when, 1889. by hirer of personal property. S<'o tit llirlnr. at expense of letter, 1956. when to make, 1929. coterminous owners to repair fences, 841. landlord to n-palr, when, 1941. letter of personal property, to repair. 1955. owner coterminous, to repair fences, 841. of estate for life, to make, 840. of ship for Voyage to make, 965. shipmaster may, 2373. tenant .It expense of landlord, when. 1586. for life to repair f«'nces. S •<>. IIKI'AYME.NT of loan, In current money, 1913. HKVISAl, .■rr.Mt of. -JO. IH:iM,i:\ IN. Sie tit. rlnliii .•iinl l>rll\ory. HKI'Mt ATIO> evidence of payment. See tit. rnymont. ItRI'ORT. See tit. Libel. HKPl IIMCATION. See tits, fodlell: Will. 101" i mm INDEX. [References are to sections.] REPUGNANCE. See tit. Intemretation of Con: nMnw Banlvs. I RESIDENCE. See tits. Hnsband and U ife; Minor.; I nr.n. Child. of minor child, parent may determine, -13. RESIDUARY CLAUSE. See tit. Wills. INDEX. [References are to sections.] RESIDUE on remainder, 776. bequest of, 1280. devise of, 1332. RES JUDICATA judgment of, annulment of marriage is, 84. RESOLUTION TO MACADAMIZE. See tit. Constructive Notice. RESPONDEAT SUPERIOR. See tits. Ma.ster and Servant; Negligence. RESPONDENTIA. See tits. Bottomry; Ships and Sliipping. by master, 3038. by owner, 3037. definition of, 3036. fraudulent conveyance, delivery, 3440. interest, rate of on, 3039. law of mortgages does not affect, 2942. master's, 3038. obligation of sliip-owner, 3040. owner by, 3037. obligations to repay, 3040. rate of interest, 3039. subject to law of liens, 2877. RESTORATION. See tits. Pledge; Rei.ssuance. of lost original articles of incorporation, 297a. of lo.st records, etc., of corporation as to proceedings for, 365. judgment and decree on, 365. jurisdiction of court, 365. notice of hearing proof of publication and service of, 365. publication of, 365. service of, 365. petition for, 365. of property pledged, effect of, 2913. RESTRAINT OP MARRIAGE void, when, 710, 1676. RESTRAINT OF TRADE. See tit. Contracts. contracts not void, 1673. RESTRAINT ON ALIENATION as to, 711. future interests, suspending power of, void, 716. leases of agricultural lands for more than ten years, void, 717. of city lots for more than fifty years, void, 718. RESULTING TRUSTS. See tit. Uses and Trusts. RETROACTIVE. See tit. Statutes. code is not, 3. 1914 INDEX. [References are to sections.] REVERSIONS. See tit. Rent*,, Reversions, and Remainders. REVERSIONS AND REMAINDERS. See tit RenuUnderTand Rever.sion.s. remainder, what is, 769. reversion, what is, 768. REVISION OF CONTRACTS as to when may be revised, 3399. enforcement of revised contract, 3402 evidence on action for, declaration of grantor admissible when, 3400. intention of parties, presumption as to, 3400. presumption as to intention of parties, 3400. principles of revision, 3401. REVOCATION. See tits. Contract; Wills. antecedent will, not revived by, 1297. by subsequent will, 1296. conveyance not a revocation, when, 1303. evidence of, 1293. is a revocation, when, 1304. mortgage not a, 1302. of codicils. See tit. Codicil. as to generally, 1305. of condonation, 121. of consent to separation, 101. of continuing guaranty, 2814. of duplicate will, 1295. of gift in view of death, 1150. of power of attorney, 1216. of proposal to contract, 1586. of trust, 2280. sale not, when, 1301. REWARD finder of property entitled to, wliat, 1871 RIDING ON PI.ATFOR:*!. See tit.s. Neglige,.,.,.: si r.-.-.-Cr IJnil- way ft. RIGHT to use force, 50. RIGHT OF WAY fire companies running to fire to have, 453b. in general, 801, 802. selection of by railroad, 478. restrictions on street railways, 498. telegraph and telephone companies, right of, 5.T6. RIGHTS OF CITIZENS IN PLACES OF I>1 HMC ACCOMMODV- TION OR AMLSE.MENT as to, 51. damages recoverable for violation of, 52. 1915 INDEX. [References are to sections.] RIGHTS OF CITIZENS IN PLACES OF PUBLIC ACCOMMODA- TION OR AMUSEMENT (continued), wrongful refusal to admit to, 53. damages recoverable for, 54. RIGHTS OF OWNERS to income of property, 733. to increase of property, 732. RISK OF EMPLOYMEIVT. See tit. Master and Servant. ROADS for horseless veliicles, franchise to construct, 524. telegraph and telephone companies may use, 536. ROOMERS AND LODGERS. See tit. Homestead. ROOMS. See tit. Landlord and Tenant. letting parts of forbidden, 1950. RULES OF NAA^IGATION. See tit. Sliip.s and Shipping. breach of rules, effect of in collision, 971. collisions, 970. from breach of rules, 971. wilful default, 972. loss, how apportioned, 973. SAFE PLACE TO RIDE. See tits. Railroads; Street Railroads. SALE agreement of sale, as to, 1726. agreement to sell and buy, 1729. what may be the subject of the contract, 1730. ■< agreement to sell real property, 1731. as to, generally, 1731-1734. as to sale, generally, 1721. by auction, as to, 1792. auctioneer's memorandum of sale, 1798. by-bidding, 1797. common-law covenants required, 1733. contract to manufacture, 1740. to sell personal property. See tit. Per.sonal Property. to sell real property, 1741. rights of buyer upon sale without reserve, 1796. under written condition, 1795. when complete, 1793. withdrawal of bid, 1794. form of covenants, 1734. of provisions for domestic use, 1775. on sale of good-will, 1776. upon judicial sale, 1777. of stock in trade, recordation of, 3440. riglits and obligations o£ the buyer price to be paid, when, 17S4. right in case of breach of warranty, 1786. right to inspect, 1785. 1916 INDEX. [References are to sections.] SALE (continued). rit;litH uikI obliKiitionN itf (lie seller Id-fuFL- delivery, 1748. when seller must act as depositary, 1748. delivery on demand, 1753. buyer's directions as to manner of sendinLf tiiini; pnr- cliased, 1757. expense of transpcjrtatiun, 1755. notice as to delivery, 1756. where made, 1754. within reasonable hours, 1758. stock in trade, of, recordation, 3440. subject of sale, what is, 1722. transfer by. See tit. Trannfer. warranty. See tit. Warranty. as to, generally, 1763. manufacturer's warranty against latint defects. 1 7G!). merchandise not in existence, 1768. no implied warranty, when, 1764. on .sale by written instrument, 1774. thing bought for a particular purpose, 1770. warranty on sale by sample, 1766. where seller knows buyer relies on statements. 1767. wiiere thing cannot be examined by buyer, 1771. .SALVAGE as to, 2079. priority of lien for, 3029. who entitled to, 2079, 2725. .SATISFACTION. See tit. Aooonl ami Salislnel ion. of judgment against corporations, 3S4. against homestead, 1241. of legacies and gifts, 1367. of retMirded mortgage, 2938, 2939. by foreign admlnistr;i t oi-s and iM-eiilors. S. • \i\ ^Inri- penalty for refusing, 2941. what operates as, 1523. S.\VIN<;S A\"n I^UAN .\SSOt.soeiat Iohm. SAVI\<;s AM) I.OA\ roUI'Olt ATIONS amount «jf capital «ti>ek re(|uired. 5St». to be paid In, 580. to be subscrllied, 580. biennial report of uncliilmed depoalts. 5S3b. cannot jiurchase, hold, or «'onvey bonds, s*>rurttlrs. etc.. 574. cannot purchase, hold, or convey real estate other than that specUlcally allowed. .'.74. 1917 INDEX. [References are to sections.] SAVINGS AND LOAN CORPORATIONS (continued). cannot purchase, own, or sell personal property except that required for its business, 574. capital actually paid up must be published, 583a. capital stock, rights and privileges thereof, 572. certificate of deposit transferable may be issued by, 576. "create debts," definition of, 579. directors Wiay not contract any debt or liability against cor- poration, 573. dissolution, disposition of reserve fund on, 577. dividends, to be made from surplus funds, 583. liability, none to be contracted except for deposits, 573. may loan money, on what terms and how, 571. for how long a time a loan may run, 571. to whom loan miay be made, 571. prohibition of directors and officers, 578. property which may be owned by, 574. lot and building in which business is carried on, 574. such as may have been mortgaged, pledged, or conveyed to it in trust, 574. such as may have been purchased at sales under pledge, etc., 574. publication of paid-up capital stock, 583a. report of unclaimed deposits, 583b. reserve fund for payment of losses to be provided, 577. corporations without capital, as to, 577. excess of reserve fund, disposition on dissolution, 577. restrictions on, 581. stock may be owned and held by married women and minors, 575. true names of persons engaged in must be shown, 582. penalty for violation, 582. unclaimed deposits, report of, 583b. vacancy in office, what creates, 578. within what time remaining stock to be paid in, 580. SAVINGS BANKS. See tit. Savings and Loan Corporations. SCHOOL COMMITTEE. See tit. Slander. SCIENTER. See tits. Animals, Vieioiis; Negligence. SEAL abolished, 1629. affixed, how, 1628. officer must affix to acknowledgment, 1193. provision abolishing effect on instruments, 1629. corporate seal. See tit. Corporate Seal. SEALED INSTRUMENT distinction between sealed and tinsealed abolished, 1629. 1918 i INDEX. [References are to sections.] SEAMEN. See tits. Mates and Seamen; Shipmaster. lien of, 3056. SEAMEN'S WAGES as to, 2063. SEAT IN CHURCH right to is a servitude, SOI. SEAWORTHINESS of ship, what constitutes, 2681. SECRET SOCIETY OR ORDER not insurance company, 451. SECRETARY OP STATE certificate of incorporation, prerequisites for, 294. when must issue, 296. continuance of corporation, proceedings for, 287. SECTION as used in code refers to, wliat, 14. SEDLCTION. See tit. Damages. damages for, 3339. in general, 49. SEIZIN. See tits. Covenant of Seizin; Livery of Sezin. SELF-DEFENSE as to right of, 43. SEMINARY. See tit. Colleges and Seminaries. SEPARATE PROPERTY. See tits. Ilusliaud and Wife; :»Iarried Women. SEPAR.4TE PROPERTY OF HUSBAND. See tit. Husband and Wife. as to, 163. in general, 163. not liable for debts of wife ciintracted before marriage, 170. SEPARATE PROPERTY OF WIFE. See tit. Husband and \Vife. as to, 162. filing of, 166, 167. inventory of, 165. SEPARATION. See tit. Husband and Wife. SEHVANT. See tit. Master and Servant. SERVICE child's, relinquishment of by parent, 211. contiact of, limited to two years, 19S0. lien for, 3051. limit of term to two years, 1980. on foreign corporation, as to, 405. SERVICE WITH E>IPL.OYMENT. See tit. Emiili» inonl. compensation, 2072. salvage, 2079. voluntarily Interfering with property, duties, 2078. SERVITUDES. See tit. Easements and Servitudes. 1919 INDEX. [References are to sections.] SETTLiKMENT, Marriage. See tit. Marriage. SEVERAL. OWNERSHIP what is, 681. SEXUAL. INTERCOURSE. Sec tits. Divorce; Hii.sbaud and Wife. "SLIAREHOI^IJER." See tit. Corporations. SHEEP-KILLING DOGS as to, 3341. SHERIFJP lien of on levy of writ, 3057. SHIPMASTER. See tit. Ship's Manager. abandonment of ship terminates master's power, 2381. appointment of, 2034. authority of, 2044. on behalf of owners of cargo, 2375. to borrow, 2374. to ransom ship, 2380. cannot trade on his own account, when, 2042. care and diligence required of, 2043. ^ impressing private stores, 2039. liability for acts of persons employed upon the ship, 2383. for negligence of pilot, 2384. lien of. 3055. master as general agent for owner, 2373. may abandon ship, when, 2040. duties on abandonment, 2041. must be on board, 2035. must take pilot, when, 2036. personal liability for contracts concerning the ship, 2382. power over passengers, 2038. over seamen, 2037. to hypothecate, 2377. to make contracts, 2376. to sell cargo, 2379. master's liability for cargo, when, 2385. to sell ship, 2378. SHIP-OWNER liability for cargo sold bs"- master, 2385. SHIPS. See tit. Sliips and Shipping. lien on, 3060. SHIPS AND SHIPPING abandonment of ship, 2040. terminates master's authority, 2381. appurtenances, 961. average, adjustment of by master, 2388. bottomry. See tit. Bottomry. capital of ship, wages of seamen, 2063. 1920 INDEX. [References are to sections.] SHIPS AND SHIPPING (continued). cargo engagement of by master, 2375. hypothecation of by master, 2377, 3038. master's power to sell, 2379. sacrifice of for safety of vessel, 2148. sale of by master, owner's rights of, 2385. sale of perishable, 2377. ship's manager, purchase of by, 3388. certificate, master's, they exerted themselves to save, etc., 2059. charter party. See tit. Charter Party. defined, 1959. manager may enter into, 2388. master may enter into, 2373. charterer has insurable interest, 2665. collision from breach of rules. See tit. Rules of Xavigatlon. loss occasioned by, apportioned how, 973. rules for avoiding, 970. ooiupeii.satioD of manager, 2072. of seamen. See tit. Mates and Seamen. delivery of ship not necessary to validate sale of, 3440. deviation from voyage. See tit. Deviation. domestic ship, definition of, 963. equipments, 961. foreign and domestic navigation, 962. foreign and domestic ships, how distinguished, 963. foreign ship, what is, 963. freightage. See tit. Freiglitage. general average. See tit. General Average. hiring of ship, 1957. hypothecating ship, master's power of, 2375, 2377. im.pressing private stores, as to, 2039. insurance. See tit. Marine Insurance. interest, on bottomry contract, 3022. jettison. See tit. Jettison. jurisdiction where ship has several owners, 964. laws governing mate and seamen, 2066. license, etc., of, 966. lien of master, 3055. of seamen, 3056. not lost by grant, 2052. priority of on, 3029. loss by collision, apportionment of, 973. manager. See tit. Ship's Manager. master. See tit. Ship's Master. mate. See tit. Mates and Seamen. Kerr's C. C. — 61 1921 INDEX. [References are to sections.] SHIPS AND SHIPPING (continued). meeting of ships, etc. See tit. Rules of Navigation, mortgage of as to, 2955, 2971. recordation necessary, 2959. navigation of domestic and foreign defined, 965. negligence liability of master for, 2043. of employee, 2383. of pilot, 2384. neutral papers. See tit. Insurance. nuncupative will. See tit. "Wills. of seamen, 1289. OT*'ner for voyage, liability of, 965. respondentia. See tit. Respondentia, part owners as to jurisdiction in controversies between, 964. as to whether partners, 2396. passengers. See tit. Coinuion Carriers of Passengers. master may engage, 2376. master's power over, 2037. perils at sea. See tit. Perils at Sea. as to what are, 2199. liability for loss by, 2197. pilot, liability of master for neglect of, 2384. when master must take on, 2036. pilotage, 2036. ransom of ship, master's power as to, 2380. recordation of transfer of vessel, 1173. registry of vessel, 966. repairs of ship, master may procure, 2376. rules of navigation. See tit. Rules of Navigation. rules for passing. See tit. Rules of Navigation. sale of ship, when master may make, 2378. salvage as to in general, 2079. waiver of right of by seamen void, 2050. seamen. See tit. Mates and Seamen. special agreement with, as to validity of, 2053. seaworthiness. See tit. Insurance and Sea-%vortliiness. several owners jurisdiction of court in disputes between, 964. partners, as to whether are, 2396. ship definition of, 960. domestic and foreign distinguished, 963. unseaworthy, seamen not bound to go out on, 2051. 1922 INDEX. [References are to sections.] SHIF^; AND SHIPPING (continued). shipping-, definition of, 960. shipwreck, deposit in case of. 1813. stowage, as to, 2117. supplies, procuring of by master, 2.376. surety, rights of apparent principal to show he is a, 2832. telegraph cable, damaging of for, 537. trading of on account, master prohibited from. 2042. transfer of interest in ship, statute of frauds affecting, 1135. unseaworthy ship, seamen not required to go out on. i'or.1. voyage and deviation. See tit. >lariiio liiNiirsiiice. wages of seamen. See tit. MatoN and Soaiiieii. wharfinger. See tit. WnrolioiiNoinan. .SHIP'S 3I.\IVAGER. See tit. SliiiiiiiaNter. compensation of, 2072. definition of, 2070. duties of, 2071. what power lie has, 2388. what power he has not, 23S9. SIGNATl UE. See tits. CoiitruetN: Mark; Wills. as to what constitutes, 1-1. in indorsement, 3110. of ofl^cer talking acknowledgment, 1193. SIGN.S. Se. lit. Trade-.MarkN and .SIkun. .SI\Gl I,.\R Includes plural. II. SINKIIVG Fl'IVn establishment to pay railroad bonds, 457. SKIM.. See tit. Care. SI.WDKIt iiiallcc not inferred, when, 4S. privileged communication. Sei- tit. I*ri\ il<-u«-l K.XTION «H' 4 Kl Kl.l^ l<» (III!.- nitK\ AM) AMMALS agents authorl/.eil to act as p..li tn.'.r-;. iMTr. badge to be worn, 607f. may make arrests, 607f. children who may be arrested l>y. 607g. commitment of, 607g. engaged or used In violation of law. f)07g. found begging or gathering alms, G(t7g. found destitute, fi07g. 1923 INDEX. [References are to sections.] SOCIETIES FOR THE PREVENTION OF CRUELTY TO CHIL- DREN AND ANIMALS children ^vlio may be arrested by (continued). frequenting company of tliieves and prostitutes, 607^. order of court upon examination, GOTg. power to institute proceedings, 607g. compensation from city or county, 607e. amount of, 607e. complaints by for violation of law, 607b. fines, penalties, and forfeitures, 607e. disposition to be made thereof, 607e. formation of, 607. magistrate to aid corporation and officers, 607c. members authorized to act as police officers, 607f. penalty for resisting, 607f. police to aid corporation and officers, 607c. power to receive and dispose of property, 607a. amount of property that may be held, 607a. pre-existing corporations organized for like purpose, 607d. SOLDIER. See tit. Wills. nunctipative will of, as to, 1289. SOLEMNIZATION OP MARRIAGE. See tit. Marriage. by whom made, 70. • form of, 71. SPECIFIC PERFORMANCE. See tits. Contract; Deed. against whom relief granted, 3395. agreement to sell by party having no title, not, 3394. cases where will be denied, 3390. contract signed by one party enforceable by other, 3388. contracts which cannot be enforced specifically, 3390. devisee or legatee, against, 1301. distinction between real and personal property, 3387. forfeiture, 3369. in what cases compelled, 3384. liquidation of damages not a bar to, 3389. mutuality, prerequisite, 3386. no remedy unless mutual, 3386. of revised contract, 3402. penalty, 3389. real estate, of contract to transfer, 1741. reformed contract of, enforced after, 3402. relief against parties claiming under person bound to per- form, 3395. as to, generally, 3395. what cannot be specifically enforced, 3390. as to, generally, 3390. what parties cannot be compelled to perform, 3391. what parties cannot have in their favor, 3392. when enforced, 3384. 1924 INDEX. [References are to sections.] SPECIFIC RELIEF as to generally, 3366, 3367. as to, when allowed, 3366. for cancelation of instrument. See tit. Cancelation <»£ InNlni- nient. forfeiture, 3369. for possession of personal property. See tits. CInim jind I>e- liverj ; I*er«oiiaI I'roporty (possession of). for possession of real property. See tits.. Ejectment; Ucal Property. for rescission of contracts. See tits. Contract.^; IlcHciNxlou of Contracts. for revision of contract. See tits. ContraetM; RevlHlon. for specific performance of obligations. See tit. SiieolHc Per- formance. how granted, 3367. judgment for possession of real property, 3375. judgment for possession of title, 3375. not allowed to enforce penalty, 3369. penalty not enforceable by judgment for, 3369. preventive relief, 3368. recovery of personal property, judgment for, 3379, 3380. support, right to conduct, as an easement, 801. when allowed, 3366. SPEKII. See tits. Uailroailis; Street ItiiilroiiilN. of carriers for hire, 2101. .SPIHITVAI.ISM. See tit. Wills. SPitlNCi. See tit. Appropriation of Water. STAtiE. See tit. Common CarrierM of Pas.H«'ii««TM, obligation of to carr>' baggMiC"'. L'lso. STAI,I grant of railroad of. 47-i. wood and earth may be taken from, by railroad. %\ lien. 176. STATEMENT. See tlt.«. Mitel: i>rivlleu:ef'KHOI,»KUS' >1F:KTI.\(; proxies, when void, 321b. essentials to validity of. 321b. maximum period of, 321b. revocable, 321b. who may vote at. 321b. .sTOi,K\ <;<)<)ns. See tit. Sale. .STOI»rA<;K I\ TH.\XSITl as to generally, 3076. how stoppage effected. 307;i. in general. 3076. insolvency of consignee, what constitutes. 3077. .seller may stop, when, 3076. stoppage, effect of, 3080. how effected, 3079. transit, when ended, 307S. when consignor may stop. 3o7t;. .ST<)K.\r;R. See tits. IlopoMitt » iir«-liuu«eiii3. Under, right to put thing in .storage, 1S6S. how to be terminated, lN."i4. sale of unclaimed baggage, to pay, isr.j. STOWACiK. See tils (iirrlrm of rr«i|t«T«v: sliipx iin'l •«lil|>i>iiiK. as to, 2117. on deck, 21. '".•4. .oiTHANCiKlt. See tits. < ont nieis: t tlill-iiil Ioiih. attornrn.iit to. 194S. grant Mi:iy Inure for llic Ix-nellt of, \\ b>ii. I'is.'i. STII.\TA(;K>I ok KHAI ll. See tit. DIvoroT'. separ.Mtlon produced by desertion, '.•7. STUEAM. See tit. Untem. 1927 INDEX. [References are to sections.] STKEET RAILROAD. See tit. Street Railroad Corporations. cars of to be modern in construction, 501. city's riglit to improve street, etc., reserved, 507. code sections applying to, 510. crossing's, obstruction of, in making, 500. elevated, as to, 498. grants to not to be made near election, 497. license tax on, 508. municipality, regulations respecting, 503. owned by natural person, 511. passengers on. See tit. Carriers and Coniiiion Carriers of Passenger!*. penalty for overcharging, 504. rates of fare. See tit. Fare. right of way, restrictions on, 498. ticket. See tit. Ticltet. • time within which to be completed, 502. tracli authority to lay, how obtained, 497. for grading purposes, time to remain, 509. imposing restrictions on laying, 497. to be laid, how, 498. two lines may use same, when, 499. STREET RAILROAD CORPORATIONS. See tit. Street Rail- roads. agency of person collecting fares, proof of, 506. cities and towns may make regulations, 503. crossing tracks already constructed, 500. franchise of, 497. law governing, 510. license to be paid municipality, 508. limitations and restrictions, 497, 498. obstructions must not extend more than one block, 500. overcharging, penalty for, 504. propelling power, 497. rates of fare, 501. penalty for violation, 501. reserved rights, 507. tickets must be furnished by, 505. penalty for failure to comply, 505. time allowed extension of time, 502. failure to comply, forfeiture, 502. traek authority to lay, how obtained, 497. extent to which may be used, 499. for grading purposes, 509. 1928 INDEX. [References are to sections.] STREET RAILROAD CORPORATIONS truck (continued). imposing restrictions on laying, 497. manner of laying, 498. motive power, 509. time may remain, 509. two lines of street railroad may use same, 499. to be laid how, 498. STRIKKS, MOB VIOI.EIVCE, ETC. See tits. C'oiiiiiioii CarrierN; Kailroiid.s. SUBAGENT. Sec tit.s. AKTont; Ma.ster ami StTvaut. liability of, as to, 2022. of factor, 2367. represents principal, 2351. rightfully appointed represents principal, 23.")1. unnuthorized employment of, 2350. wIkii may be appi)int<'(l, 23.")1. Sl'Il.MI.S.SION TO Jl KISDK'TION OF COlIt'I' IIV >II\<»i{. See tits. Infant; Minor. SUBPOENA nia>' be issued by officer taking acknowledgment, 1201. SI Bitot; ATIOX of creditor of securities held l)y surety, 2S54. of insurer. See tit. Marine In.siiranoe. of lienor, right to, of inferior lienor, 2904. of new corporation on consolidation of railroads. 473. of redemptioner, 2903. of security, 2848, 2849. SL'BSTITITE eiiiployt^e's liability for, 1989. SL'CfESSKJX. See tit. Wordi* ami IMirns»-.s. advancements. See tit. .\niperty. See tits. Coiniiiiiiiii > rr.ii(.Ti>: lln-*- lianil and WIfr. distribution on d.ath of husband, 1402. on death of wife. 1401. 1929 INDEX. [References are to sections.] SUCCESSION (continued). deceased person, succession to, and distribution of, property, 1386. cliildren of, 1386. decedent a widow or widower leaving no cliildren, 1386. leaving no husband, wife, or kindred, and there are no heirs, 1386. leaving a surviving husband or wife, but neither issue, father, mother, brother, sister, nor children, 1386. leaving child who dies under age, not having married, 1386. leaving neither issue, husband, wife, father, mother, brother, nor sister, 1386. leaving several children, or one child and the issue of one or more, 1386. definition of, 1383. degrees of kindreds. See tit. Ivin«Ired (degree of, how com- puted), as to, 1389. ascending and descending line, 1391. collateral line, 1390. direct line, 1392. descending line, succession by, 1391. escheat. See tit. Escheat. subject to charges as other property, 1407. estate of intestate, to whom passes, 1384. illegitimate child to inherit in certain events. See tit. Illegitimate Cliild. as to generally, 1387. illegitimate children inherit, when, 1387. inheritance by representatives, 1403. of husband and wife from each other, 1400. murderer of decedent not to succeed, 1409. not claimed, proceedings where, 1405. person convicted of murder of decedent not to succeed, 1409. personal representatives, 1385. property and estate escheat to the state, when. See tit. Esclieat. as to generally, 1406. of illegitimate child, succession to, when and how, 1388. relatives of half-blood, 1394. succession and distribution of decedent's property, 1386. successor liable for decedent's debts and obligations, 1408. to whom estate passes, 1384. SUCCESSIVE OWNERS. See tit. Nui.sauee. SUGGESTION nialice as to fact is, when, 1572, 1710. SUIT. See tits. Constructive Notice; Notice. 1930 INDEX. [References are to sections.] SUMMARY PROCEEDINGS. See tit. Ejectment. as to, in certain cases, 792. SUMMONS in action against corporation to secure duplicate of lost certificate, 328. in proceedings to restore burned bonds, 329. SUNDAY. See tits. Holidays; Negotiable In.>4truinent.s. a lioliday, 7. SUPERFLUITY does not vitiate, when, 3537. SUPERHUMAN CAUSE. See tit. Aot of God. as to responsibility for, generally, 3526. carrier not responsible for, 2194. excuse of performance by, 1511. innkeeper is not responsible for loss by. 1859. SUPERIOR COURT. See tits. TriK>stee.s: U.ses and TruMts. as trustee, 2289. SUPERVISORS action by for personal abuse, 203. apprentices may be bound out by, 268. consent as to apprenticeship, 265. provision for orphans of intestate parent out of property of decedent, 205. support to land. See tit. Lateral and Suh.ineent Siipporl. SIPPORT AND MAINTENANCE of wife. See tits. Husband and Wife: Sii|M>ort «»f A\ife. SUl'PORT OF WIFE. Sec lit. Hii.sband and \A Ife. as to, 174. wlicn separate from licr husband, 175. SI RETY. See tit. Siiret.vsbip. ai)parent principal may slmw he i.s .surety. L'Slli'. detinition of surety, 2831. SI HETVSHIP. See tits. Gnaranl.v: IndeinnK.v; Surety. apparent principal mny show liimself to lie simply a surety, 2832. contribution among. See tit. Contributlou. creditor entitled to securities held b.w when, 2854. deflnition of, 2831. has right to guarantor, 2814. interpretation an to general ruh'S of. 2837. strict rule, as t<\ 2S3fi. judgment against surety does not alter relation. 2S38. letters of credit. 2858-2866. liability of surety, 2836. discharge by certain acts of creditor. 2840. judgment against surety does not alter relation. 2838. 1931 INDEX. [References are to sections.] SURETYSHIP liability of surety (continued). limitation of surety's obligation, 2836. interpretation, rules of, 2837. performance or offer of performance exonerates surety, 2839. relation not altered by judgment, 2838. rules of interpretation, 2837. surety exonerated by performance or offer of performance, 2839. rights of sureties as rights of guarantor, 2844. entitled to reimburseinent from principal, 2847. * acquires right of creditor, 2848. to benefit of sureties held by creditor, 2848. to have property of principal taken first, 2849. may compel principal to perform obligation when dvie, 2846. may require guarantor to proceed against principal, 2845. rights of creditors, 2854. to benefit of sureties held by surety, 2854. surprise, contract made under, specific enforcement not granted, 3390. SURVEY of wagon road, filing of, etc., 513. SlTllVEYED CLAIMS. See tit. Mining Claims. SURVEYOR-GENERAL right of way selected by corporation to be sent to, 478. SURPLUS PROFITS OF CORPORATION. See tit. Corporations. SURPLUS WATER. See tit. Auuropriation, SURRENDER OF INSTRU3IENT. See tits. Contracts; Obliga- tions. M^hen a condition of payment, 3137. SURVIVORSHIP choses in action, survival of, 954. cotrustees, between, 2288. SUSPENSION. See tit. Suspension of the Power of Alienation. SUSPENSION OF OWNERSHIP by trust, 771. restriction of, 770. SUSPICION. See tit. Wills. SWAMP-LAND DISTRICT. See tit. Corporations. "TARE" on baled hops, 995. TAX encumbrance, included in the term, 1114. license on street railways, 508. life tenant to pay, 840. 1932 INDEX. [References are to sections.] TAX (continued). on land and building corixn-ations, G48^. on mortgage premises, 2877. TAXES AND ASSESSMENTS embraced in term "encumbrances," llll. TEACHER. See tits. Mbel; Slander. TECHMCAIi \VORr>S. See tits. Const nut ion : Wills. effect of in wills, 1327. not necessary to valid will, 1328. TELEGRAMS. See tit. Carriers of 3IessaK:c.s. TELEGRAPH AND TELEPHONE CORPORATIONS articles of, what to set forth. See tit. C4>r|>or:ilionN. as to generally, 291. prereciuisites to filing. 292. care in transmission of messages, 2101, 2161. conditions on which damages to subaqueous cable may be recovered, 539. franchise of, 537. injury to, liability for, 537. lialiility for damaging telephone or telegraph property, 537. for delay or refusal to carry, 2209. malicious injury to property of, penalty for, 538. may dispose of certain rights, 540. nii'MMaeeM compi'iisation for delivi-ry of. 2161. obligation to deliver, 2161. order in which to be transmitted, 2207. penalty for wilful or malicious injury t<> iclipliDin- m- ti'le- graph company, 538. property of, lease and transfer of, .'ilO. penalty for malicious injury to, 538. rigiit of way along roads, watercourses, etc., 536. riglils, what may be disposed of, 540. subaqueous cable. Injury to, damages for, 539. monument to show location of, 539. notice of location of, 539. subscription to. amount of requisite to iHliiK articles. 29.">. TEN.\NCV AT WILL may be terminated by notlci'. 7S0. notice to quit, effect of. 790. not necessary, when, 793. re-entry, when and how made, 791. summary proceedings. 792. notice not necessary before action, when. 793. TEN.\NCY IN COMMON devisees taking under will are, 1350. of spouses, 161. 1933 INDEX. [References are to sections.] TENANT. See tit. Lauillortl and Tenant. TENANT FOR LIFE duties of, 840. lieirs of, take as purchasers, when, 779. rights of, 818. TENANT FOR YEARS as to rights of, 819. TENDER. .See tit. Extinction of Obligation. and deposit distinguished, 1500. by whoin to be made, 1487. interest stopped by, 1504. of performance of obligation, effect of, 1485-1505, 1511. place where to be made, 1489. to whom to be made, 1488. when to be made, 1490. TENSE as to of words used in code, 14. TESTAMENTARY CAPACITY. See tit. AVills. TESTAMENTARY DISPOSITION. See tit. AVill.s. TESTIFY^ as to meaning of, 14. THEATER right to admission to, and penalty for refusal, 51. THF^FT. See tit. Seamen. by seamen during voyage forfeits wages, 2063. THINGS IN ACTION. See tit. Clio.ses in Action. definition of, 953. THIRD PERSONS act of not to prejudice, 3520. agent responsibility to, 2343. to deliver to, when, 2344. consideration paid by, effect of transfer, 853. contracts for benefit of. See tit. Contracts. delivery to in escrow, 1057. estate for life of, 766. grant may inure, to benefit of, when, 10S5. information or belief of, in marine insurance, 2670. liability of partners to, 2442. may enforce contract, when, 1559. must see to application of trust property, when, 2244. necessaries furnished by for infant, 207. furnished by to wife, 174. not to be prejudiced by ratification of agent's act, 2313. not to be prejudiced by reformation of contract, 3399. remained on estates granted for the life of, 775. specific performance of contract enforced by, 3390. 1934 I INDEX. [References are to sections.] THIRD PERSONS (continued). tender by. See tit. Extinction of Obli)£!:nti<»uM. trust, for the benefit of, 2250. trustee, voluntary, 2243. who liable to as partner, 2444. who must suffer by acts of, 3543. THREAT consent to contract obtained by, voidable, 1567, 168i divorce for desertion caused by, 98. menace, definition of, 1570. to oi>t»in advantage by partner, 2410. by trustee, 2228. will procured by void, 1272. THRESHING MACHINES. See tit. l.ien.s. lien of workmen on, 3061. TICKET. See tit. Rnilroa«l.s. of railroad companies, 490. entitle purchasers to what, 490. penalty for failure to provide, 490. TIDE WATER damages for injuries to, 3346. land bounded by, riglits of owner, 830. lien on. See tit. IiOjSK,er*.H liien. TIMBER. See til. Trees. damages for neglig-iiitly s.'tting fire, 3346a. TIME. See tit. Keeordiue. action for nullity, of commencing, S3, 107. computation of, as to, 10. divorce, of commencing actions for, 127. entire, servant's belonging to master, 2013. essence of contract, not unless declared, 1492. grant, presumption as to of delivery, 1056. of taking effect of code, 2. railroad may regulate, 465. representations in insurance, refer to what. 2577. void act not confirmed by. 3539. words in will relate to what, 1336. TIME OF CRE.VTION of estate, 749. TITLE accession by. S<>e tit. Aeee.ssi«»ii. acquired suVisequent passes, wlien, 1 l(t(!. buyer acquires better than seller had, when. 1142. by devise. 1311. liy occupancy. 10(M). in fee simple, when presumed to pass. ^]lK>. 1935 INDEX. [References are to sections.] TITLE (continued). instrument evidencing, how proved for record, IICO, 1203. inventory of wife's property, notice of, 166. judgment for possession of, as to, 3375. lien on property does not transfer, 2888. of grantor of trust property, 865. of loaned.-property, 18S5, 1904. redelivery of thing granted does not re-invest, 1058. a suliseqiieutly-acqiiired . inures to benefit of mortgagee, 2930. passes by operation of law, when, 1106. passes by will, 1312. to freight, passes by transfer of bill of lading, 2127, 2128. to highway, passes by transfer, when, 1112. to personal property, passes by transfer, 1136. transfer of, what passes by, 1083, 1105. trust property, what vests in grantor, 865. warranty of to personal property, 1765. by agent, 2323. what passes by transfer of property, 1083. TITLE DEEDS as to what are, 994. TITLE INSURANCE. See tit. Fire, Marine, and Title Insurance. TITLE INSLKANCE CORPORATION. See tit. Corporations. investment of funds of, 421, 421 [a]. TOLL. See tit. Bridge.s, Ferries, Wliarf, Chute, aud Pier Cor- porations. avoiding, penalty for, 519. by wagon-road corporations, 514. detaining persons unnecessarily for, 518. highways, known on public, 515. penalty for avoiding, 519. for taking unlawful, 514. rates of, to be posted at gate, 516. right to take, as a servitude, 802. toll-gatherer, may detain traveler, when,i 517. TOLL-GATE avoiding, penalty for, 519. TORT damages for, 3333, 3339, 3340. deceit, 1709-1714. indemnity against, 2773. in general, 1708. negligence, etc., 1714. of agent, principal liable, 2338. 1936 INDEX. [References are to sections.! TORT (continued), of infant, 41. of lunatic, 41. tiling wrongfully taken, restoration, 1714. wrongful acts, 1714. TOVVX LOTS not to be granted to railroads, 475. TRADE. See tit. Contracts. contracts in restraint of, 1673, 1C74. TRADE-MARKS ownership, subjects of, 655. sale of, warranty presumed, 1773. warranty of by seller, 1774. what may be appropriated as, 991. TRADE-MARKS AND SIGNS ap7)ropriation and iise of, 991. good will in, transfer of, 993. title to, 991. TRANSFER as to, what is, 1039. delivery cancellation of grant does not constitute redelivery, 1058. constructive delivery, 1059. in escrow. See tit. Escrow. nature and necessity for, 1054. necessary to procure, 1054. presumed to have been made at date, 1055. surrender of grant does not constitute redelivery. 1058. to grantee is necessarily absolute, 1056. effect of transfer, 1083. grant may inure to benefit of stranger, 1085. incidents of transfer, 1084. what title passes, 1083. how interpreted, 1066. Interitretatlon against grantor, 1069. irreconcilable i)rovislons, 1070. limitations, how controlled, 1067. meaning of "heirs" and "issue" in certain remainders. 1071. membersliip In co-operative agricultural, etc., association, of, 653u. recitals, when resorted to, lofis. words of inheritance unnecessary. l(i7"J. in general, 1039. mode of transfer, as to, 1052. grant, what is, 1053. oral transfer, 1052. written transfer, 1053. 1937 INDEX. [References are to sections.] TRANSFER (continued). of membership of co-operative agricultural, etc., association, 653u. of products of the mind, 982. of stock. See tit. Certiflcate.s o£ Stock, Transfer. voluntary transfer, 1040. what may be transferred, 1044. choseain action. See tit. Clioi^esi in Action (transfer of), owner out of possession may transfer, 1047. personal property. See tit. Personal Property, Transfer of. possibility coupled with an interest, 1045. real property. See tit. Real Property (transfer of), right of re-entry, 1046. TRANSFER, FRAUDULENT. See tit. Fraudulent Transfer. presumed to be fraudulent, wlien, 3440. with intent to defraud creditors, 3439. TRANSIT property in mortgaged where located. 2966. stoppage in. See tit. Stoppagre in tran.situ. TREES damage for injuries to, 3346. line-trees, 833. trunks wholly- on land of one belong to whom, 833. TRESPASS accession of property by wilful, 1031. cutting or injuring timber by, 3346. personal property acquired by, 1031. wagon road, penalties for trespassing on, 520. TRESPASSER. See tits. Neg^ligence; Oblig:ation.s Imposed by Law. TRIAL by jury in apprenticeship proceedings. See tit. Master and Apprentice. TRIFLE disregarded by law, 3533. TRUSTEES. See tit. Uses and Trusts. all must act, 2268. appointed by court for benefit of third person, v/hen, 2252. appointment of new trustees by court, 2287. breach of trust, measure of liability for, 2237. certain transactions by, forbidden, 2230. cotrustees, how far liable for each other, 2239. discretionary powers of trustees, 2269. duty of as to appointment of successor, 2260. guilty of fraud, when, 2234. influence not to be used for his own advantage, 2231. investment of money by, 2261. 1938 r INDEX. [References are to sections.] TRUSTEES (continued). involuntary trii.stee must see to application of trust property, wlien, 2244. tliird person liable as, when, 2244. who is, 2223. liability for cotrustee, as to, 2239. liability for losses only, when, 2238. measure of liability for breach of trust, 2237. ming^ling trust property with his own, 2236. must obej^ declaration of trust, 2258. degree of care and diligence in executing trust, 2259. not to assume a trust adverse to interest of beneficiary, 2232. not to use property for liis own profit, 2229. obligations of, as to. 2228. ofllce of, how vacated, 2281. discharge of trustee, 2282. removal by court, 2283. partners are for each other, 2410. powers of trustees, 2267. discretionary powers, 2269. presumptions against, 2235. purchase by, of claim against trust fund. 2263. rights of trustees, as to, 2273. compensation of trustee, 2274. indemnitication of trustee, 2273. involuntary trustee becoming sucli by liis own fault not within provision, 2275. superior court as trustee, 2289. survivorship between cotrustees, 2288. termination of trust. See tit. TruMt. to disclose adverse interest, 2233. what constitutes one a, 2219. TUl .STS. See tit. I NOM anil TruNtN. for b«'ncfit of third pi-rsons. Si-i- til. 'rriiMt.H. for lifiicllt of I'liird I'erwttnN. for what purposes a trust may be created, 2220. how created, 2221. involuntary trust resulting from negligence. 2224. involuntary trust, what is, 2217. involuntary trustee. See tit. TruMteoM. who Is, 2223. not revocable, 2280. obligations of third persons. S<<' tit. TrnMlecM. to see to application of property, when, 2244. when an involuntary trustee, 2243. obligations of trustees. See tit. TrunteeH. as to. generally, 2228. 1939 INDEX. [References are to sections.] TRUSTS (continued). parties to the contract, 2218. succession or appointment of new trustees. See tit. Trustee.s. suspension of ownershiip by, as to, 771. termination of tru.st liow extinguislied, 2279. ^ as to, generally, 2279. transfer of property held in, to be recorded, 1164. trustee's office, how vacated. See tit. Trustees. by death or discharge, 2281. voluntary trust how created as to trustee, 2222. how created a^ to truster, 2221. what constitutes one a trustee. See tit. Trustees. as to, generally, 2219. "TRUSTS" AND "TRUSTEES" when to be part of corporate name, 290%. TRUSTS FOR HENEFIT OF THIRD PERSONS claim against trust fund, purchase by trustee, 2263. compensation of trustee, 2274. creation of, 2251. declaration of trust, 2253. degree of care and diligence in executing trust, 2259. discharge of trustee, 2282. duty of trustee as to appointment of successor, 2260. how extinguished, 2279. indemnification of trustees, 2273. investment of money by trustee, 2261. interest charged to trustee on failure to invest, 2262. nature and creation of, 2251. who are trustees for, 2250. not revocable, 2280. obligations of trustees, 2258. office of trustee, how vacated, 2281. powers of trustees, 2267. all must act together, 2268. as agent, 2267. discretionary powers, 2269. purchase of claim against trust fund by trustee, 2263. removal of trustee by court, 2283. rights of trustees, 2273. succession or appointment of new trustee, 2287. superior court as trustee, 2289. survivorship between cotrustees, 2288. vacant trusteeship filled by court, 2287. superior court as trustee, 2289. survivorship between cotrustees, 2288. 1940 INDEX. [References are to sections.] TRUSTS FOR BENEFIT OF THIRD PERSONS (contlnu.-d ). termination of trust. See tit. Trust. trustee appointed by court, when. 2252. trustees must obey declaration of trust, 2258. TI NNEL RIGHT boundaries of, 1426f. location of as to generally, 1426e. record of, ll2 6g. what constitutes, 1426e. record of location, 1426g. INCLAIMKD DEPO.SITS l)i('nnial report of. by .savings banks. 5S3h. I'MJKUST.WniNG contracts by persons without. Si-i' tit. <°4>iitr:i<-l.s hy Ter- HonH Without L'nderNtnndinK. as to generally. 3S. IMHOiri'AKI.NC;. See tits. Ciii:iriui«>: liiiieniiiil y ; Siiret vmIiIii. V.M>i<:itT\l\i.\(; 0> AlM'KAl. from justices' or police courts, must l>e liU-d, wlu-n, 9T.Sa. LMJl E iXFl.l E\CE. See tit. WillM. as to what constitutes, l.'>75. confidential relations between the parti89. definition of, 1575. rescission for, 16SS. thing gained by, trust. 2224. trust arising through, 222."). wills procured by or revoked tliroiiph, 1272. IM\< i,0*ii:i> I,A>n, See tit. lioiiieMteiiil. IM\ lOICM'I'liOS. See tits. Coll€-Kr«'« iiiul SiMiiiniiricn. IM.AWi'l 1. « OXTIIACTS. See tit. CoiHrn«l«. as to what are, ir>f.7, 1668. contracts fixing damages void, 167ii. exceptions to the rule, 1671. contracts In restraint of marriage. 1676. contracts In restr.'iliit of trade. 167.1. exceptions in favor of sale of good will. MiTI. Interstate commerce. Sec tit. Intorxlntr r«»innnTlonopolion. PXCf'ption.s in favor of partnership arraiigi-menls. 1675. IM.AWFI I. oni.iGATiONS. See tit. OltlliciitlonM. l\L.\UKl i. TilANSI-'Ell certain Insfrvmients void as against purrh.T.sor. 1227. not void as against purchaser, when, 122S. power to revoke, wlien, 1229. 1941 INDEX. [References are to sections.] U]VLIQ,UIDATED DAMAGES. See tit. Damages. ITA RECORDED DEED. See tits. Deed; Notice. UNUECORDED IN-STRUMEIVT valid between the parties, 1217. UNSOUIVD MIND. See tits. Per.son.s o£ Un.soimd Miud; Wills; Words and Plira.se.s. contracts by persons of. See tit. Contracts by Persons of Unbound 3Iind. as to generally, 39. USAGE agent to conform to, 2349. definition of, 1644. employee to conform to, 1982. meaning- of words, determined by, 1644. USES AND TRUSTS. See tits. Trustees; Trusts. author of may devise, etc., 864. certain sales, etc., by trustees, void, 870. estate of trustee ceases, when, 871. exercise of vested powers, 860. for what purpose express trust may be created, 857. to mortgage or lease real property, 857. to receive rents and profits of real property and accumulate same, 857. to receive rents and profits of real property and apply same, 857. to sell real property, 857. grantor of trust property, title of, 865. interest remaining in grantor of express trust, 866. must be in writing, 852. omitting trust in conveyance, effect of, 869. purchaser for value without notice protected, when, 856. restraining disposition of trust, 867. sales, etc., by trustees void, when, 870. title of grantor of trust, 865. < transfer to one for money paid by another, 853. trust presumed, when, 853. trustees in lands liable to creditors, when, 859. vesting of power to sell or mortgage real property, 858. what may exist, 847. VAGRANT child who is to be arrested and committed, 607g. VALIDATING defectively executed instruments, 1207. certified copies as evidence, 1207. VALUABLE CONSIDERATION. See tit. Consideration. VARIANCE. See tit. Acknowledgments. 1942 INDEX. [References are to sections.] VEHICLES. See tit. CarriaK*' of I'aNscimcrs fral ivt- Xnrhiil- tiiral. viv., A.s.sooialUtu.s. VOID CO.MHriOV. Set tit. ( ouditiou. VOLUNTARY roNVEVANCP:. See til. Transfer. definition of, 1040. validity of. 1040, 3442. VOTING. See tit. CoritoraUoiis. l)y co-operative corpora tlun.s. *;',:]■/.]>. VOTING TIirST. See lit. < «tr\aiit; >lalfs and •«,.;, nuii. for services wliere tliere is no employment, 207s of minor, 212. personal representatives entitled to receive. whr:it iiin>«. what must contain. 291. bridges and ferries. See tit. Ilriiluei, lerrv. \\ liarf. « iim,.. nnd Pier CnrporatlonM. bridges or ferries on line. .'>14. not 111 tw charged on bigliways or i>uMie ro.qrl.q. .S1.">. 1943 INDEX. [References are to sections.] WAGON ROAD CORPORATIONS (continued), bridges or ferries, rates must be posted, 516. tolls, as to, in g'eueral limit of, 514. penalty for violation, 514. commissioners to act in conjunction with surveyor, 512. crossings, as to, 513. forfeiture of franchise, 514. franchise of, 524. horseless vehicles, franchise to construct road for, 524. how to be laid out, 511. hypothecation of property, 522. mortgage or hypothecation of property, 522. natural person, ownership by, 523. opening highway taken as, 513. penalty for excessive toll, 514. for trespass on property of, 520. Ito.sting; date of franchise, 516. rate of tolls, 516. reduction of tolls, when, 521. revenue, how apportioned, 521. subscription amount necessary to entitle to file articles, 293. toll-gate, as to, 513. toll-gatherer, right to detain until payment made, 517. not to detain unreasonably, 518. survey and map to be filed and approved, 513. tolls. See "bridges or ferries on line," this title. avoiding tolls, penalty for, 519. persons detained until toll paid, 517. rates to be posted at gate, 516. ^ reduced, when, 521. to be reduced, when, 521. trespass on property of, penalty, 520. unnecessary detention or overcharges, damages for, 518. what may be charged, 514. WAIVER communication of in insurance, 2569. lunatic's rights not lost by, 40. of demand by pledgeor or debtor, 3004. of notice of sale of pledged property, 3003. of objections to offer of perforinance, 1501. of option as to delivery of goods purchased, 1756. of presentment and notice, 3159. of protest, 3160. 1944 INDEX. [References are to sections.] WAIVER (continued). of provisions of the code, by stipulation, 3268. of sale of corporated stock, 349. WAIVER OF CONDITION. See tit. CniKlHion. AVAR di.ssolution of partnership by, 2450. WARKHOITSF RECKIPT classification and effect of, 1858b. indorsement of negotiable receipt, 1858c. negotiability, 1858d. not to be issued, when, 1858. not to issue except, 1858. penalties, 1858d. requisites of, 1858b. second receipt, 1858. transfer of property by indorsement of. 1858b. AVAilEHOUSR>lEN. See tit. Warelioii.Nc Itt'ooipt. liabilities, generally, 1858f. liability for loss by fire. 1858f. non-negotiable receipt and its effect, ]858d. j)enalties and liabilities, 1858f. property not to be removed from Avitliout consent in writ- ing, 1858a. receipts of. See tit. WnrelnniMe ReoeiptM. removal of property, written consent necessary, lS58a. ti-.insfer of proju^rty in. b>- indorsement of receipt. 1858li. W A 11 KANT OF A I Til OR IT V breach of by agent, damages for, 3318. \VAItRA.\TV. See tit. Sole. agent's authority witli reference to, 2323, 2342. breach of, riglits of party, 1786. by Indorsement. 3116. cfivenants for, 1463. delinition of, 1763. implied in contract of sale-, when. 17f, 1. in excliange of money, 1807. in Insurance. See tit. InMiirntice. lineal and collateral warranties alxilisbed. 1 1 1 .i. of money, on exchange, 1S04. of quality of personal property, damages fur l>reacb <>f 3312. for special purpose, danuiges for breach of. 331 I of title, 1765. of title to personal property, dam.-iges for breach of. :i;n;t. on judicial sale, 1777. i)n sale by sample, 1766. where buyer relies on statement of seller. 1767. 1945 INDEX. [References are to sections.] AVASTE grantee's recovery for, 2177. on mortgraged property, 2929. WA.STE WATERS. See tits. Appropriation of Winters; \Vater. notice of. See tit. Notice. WATER. See tits. Appropriation; Water and Canal Companies. abandonment of appropriation, 1411. alluvion on. See tit. Alluvion, appropriation of ii.se of completion of, 1417. diligence in, 1416, 1420. first in time, first in right, 1414. must be for useful purpose, 1411. rights in stream acquired liy, 1410. avulsion. See tit. Avulsion. as to, 1015. boundaries by, 830. changing use of, effect, 1412. completion of diversion, what constitutes, 1416. diligence required in appropriating, 1416, 1420. ditch or flume. See tit. Ditehe.s, Flumes, etc. diversion, change of point of, 1412. easement to receive and discharge on land, 801. to take, 801. flume or ditch. See tit. Ditches, Flumes, etc. forfeiture of claim of appropriated, 1419, 1420. hydraulic mining, use in, 1424. islands in. See tit. Islands. as to ownership of, 1016. notice of appropriation ^ recording of, 1422. requisites of, 1415. posting, 1415. priority of rights in, 1414. reclaiming after turning into natural channel, 1413. recording notice of appropriation, 1421. relation doctrine of applied to, 1418. of claim to date of posting notice, 1418. of rights of present claimants, 1420. servitudes of, 801, 802. turning into natural channel, right to reclaim after, 1413. ^VATER AND CANAL CORPORATIONS. See tit. Appropriation. liridges, duty to maintain on liighway, 551. construction and repair of bridges, 551. construction of canal, etc., 551. 1946 I INDEX. [References are to sections.] WATER AND CANAL CORPORATIONS (continued), contract, city or town may for supply of water. .".IS. contract to supply city or town, .548. dutieH of in furnishing cities with water, 549. fire, duty in case of, 549. flumes. ■ See tit. Dltoluvs, FIiiiiu-h, vtv. duty as to, 551. Iiiiorli^vny duty to maintain bridges on, wlien, 551. not to be obstructed by, 551. irrigation rights. See tit. Irrigutinn. as to, generally, 551. must furnish water for family use upon demand, 549. rules may be prescribed, 549. person furnished water entitled to continuance, when, 552. rates cities to be charged, 549. regulating rates, 548. riglit of purchasers to use water for irrigation, 552. stock of appurtenant to land, when, 324. suinTvisorM duty in case of fire, 549. may construct bridges and recover therefor, 551. may prescribe rules for, 549. term of grant, 548. WATKIt COMPANIES. See tit. \\ :itor niiil <:ni:il <->iiipaiiie!>4. Nt«>(>k of ainturtenant to land, when, .324. tran.«ifer of, .324. WATKIl K ATKS. See tits. Water Companies; Itatos. WATKIt-ItKiHTS, as to. See tit. Water auil Canal < orporni iuii approi)riatii)ii must be for useful purpose, 1411. completion defined, 1417. diligi'nce in appropriation of water. Illf.. doctrine of relation applied, 1418. first in time, first in riglit, 1414. forfeiture, 1419. may be acquired by appropriation, IIH'. notice of appropriation, as to, 1415. contents of notice, 1415. record of notice, 1415. point of diversion may b<' ehanged. 1412. recorder to keep book in which to record notices. 1421. time within which to commence excavation '•" i.iii.iu r..«.. vations, 1422. turning water into natural fbannel. 1413. 1947 INDEX. [References are to sections.] WATERWAYS telephone and telegraph lines along, 536. WAY, See tit. Right of Way. as to boundary by. See tit. Way.s, Boundary of. AVAY OF NECESSITY. See tits. Easenieut.s; Servitude. WAYS, BOUNDARIES BY. See tit. Boundaries. as to, 831. lateral and sub.iacent support, as to, 832. WEIGHING AND MEASURING. See tit. Identification. WHARF. See tit. Bridges, Ferry, Wharf, Chute, and Pier Cor- porations. WHARFINGER. See tit. Warehousemen. WIDOW inheritance by. See tit. Succession, legacy to charged with debts of testator, when, 1361. interest on, accrues, when, 1369. succession of. See tits. Coniniuuity Property; Hushand and Wife; Succession. W^IFE. See tits. Coniuiunity Property; Husband and Wife; Wills. inherits from husband, 1400. succeeds, when. See tits. Community Property; Husband and Wife; Succession. WIFE'S DEBTS. See tits. Community Property; Hu.sband and Wife. WIFE'S VOID CONTRACT. See tits. Contract; Hu.sband and Wife. WILFUL MISCONDUCT. See tit. Damages. WILLS advancements. See tit. Advancements. are ademptions, when. See tit. Ademptions. after-born child revokes, when, 1306. annuity. See tit. Annuity. as to who may make a will, 1270. bequest of interest and income, accrues from, when, 1366. of residue, effect of, 1333. vests, when, 1341. certain words, effect of use of, 1334. charitable bequests. See tit. Charitable Uses and Bequests. charitable uses and bequests. See tit. Charitable Uses and Bequests. child born after testator's death. See tits. After-born Child; Posthumous Child. takes under will, when, 1339. codicil. See tit. Codicil. probate of. See tit. Probate. 1948 I INDEX. [References are to sections.] WILLS (continued). competency of witness to, 1280. condition precedent, what is in, 1348. effect of, 1347. when deemed performed, 134S. condition subsequent, 1349. conditional devises and bequests. 1345. conditional will, 1281. construction of. See "Rules of Construction," this till- . construction of particular words in. See tit. \Vor«l.H mikI Phrases. conversion takes effect, wlien, 133S;. deatli of devisee or legatee before testator, effect upon interest in remainder, 1344. devise or bequest to a class, 1337. of all real or personal property, 1331. devise vests, when, 1341. devisees take as tenants in common, 1350. estates devised charj^^eable with debts, 135S, 1359. execution according to tenor, 1371. execution and revocation of wills, l:i70. gifts to subscribing witnesses void, 1282. harmonizing various parts of will, 1321. holographic, definition of, J277. in what case devise not affected, 132 J. intention to be asce':ained from the will, 1318. interpretation, rues of, 1319. law governing validity ami interpretation, 137('). mistakes in 1340. niiitunl ^vMl as to rfenerally, 1279. probite of, 1291. proiW of nuncupative wills, 1200. reoJisite of valid, 12S:). natire and designntion of legacies. Seo tit. I.OKHolrn. ,,ljgraphic. See "Holographic," this title. ,>(i\< < hiuxeN. riilrM of ronntnirtitin as to geiier.illy. 1319. certalii Wolds not neciss.iry to pa.ss foe, 1329. harmonizing various parts of, 1321. Intestacy to be avoided. 132fi. several Instruments to be takf c<»n.Htriioti«>u ( citntinueil ). technical words not necessaiv, 1328. i"chnical words used in, effict of. 1327. where am])iguou.s or doubtful, 1323. Tv-ot-.N taken in ordinary sense, 1324. ♦o receive- operativi' construction, 1325. II . ises and legacies. See tit. Legrucien. '...-I. i s in:.:»ntion to be curried out, 1317. to I'e pr« vc. will, 1275. will made out »t state not valid, whin. 12s."i. will of married womaji Sec tit. Married Womon. may make, alter, (.ir revoke will, 1273. witness subscribing will, co'npetency of. See tit. W Hiion.s. us to generally, 1280. witness to, creditor competent, 1282. witni'ss to adil i ■-'..!. ii •• i.TS. witne».s to \' words of doi. to what time wuius ipit-r. laStt. words of to he tak»Mi in orditmry sense, 1.124. written will as to, how executed, 127t). after-born child, unpro\ i-led ^or, tits. Af born Cliild; PoNtliunifiUM Cli > • as to generally. 130!). contract of sale not revocation, 1301. conveyance, when not a r-fvocatfo-- ' (•' elVect of ninrringre of man on his will, 1299. of woman on her will, 1300. evidence of revocation, 1293. mortgage not a revocation, 1302. revocation by codicil, 1305. by marriage, and birth of issue, 1298. by subsequent will, 1296. antecedent not revived by, 1297. of duplicate, 1295. ^VI^E Male of delivery necessary to validity, 3440. recording, 3440. to be in writing, 3440. 1950 INDEX. [References are to sections.] AVITNESS. See tit. Wills. acknowledgment of, 1185. creditor may be to will, 1282. "depose," definition of, 14. to nuncupative will, 1197. to prove handwriting, 1199. not necessarj' to holographic will, 1277. oath to in taking acknowledgment, 1185. privileged, testimony of, is, 47. recorded instrument, may be proved otherwise than by sub- scribing, 1197. subscribius instrument may be proved otherwise than by, 1197. manner of proving instrument by, 1196, 1197. to be known to officer taking proof, 1196, 1197. to prove what, 1197. subscription of, definition of, 14. testify, definition of, 14. to prove execution of instrument must be personally known to officer, 1202. witness must prove what, 1197. to will as to, 1276, 1279. cannot take under as by succession. 1283. gift to. 1282. who is a devisee, rights of. 1283. WOOD right to take, 802. WOODS damages for firing, 3346a. "WORDS" meaning of in certain remainders, 1071. W'ORDS AND PHRASES "agent," includes what, 2295. "create debts," meaning of, 579. "descendants," in will, 1334. "family," meaning of in will. 1334. "for whom it may concern," in policy of insurance. 2592. "heirs," in will, 1334. iiow construed, 13. ''i.ssue" in will, 1334. meaning of in certain remainders, ]i)71. "legal representatives," in will, 1334. "near relations," in will, 1334. "nearest of kin," in will, 1334. "next of kin," in will, 1334. 1951 INDEX. [References are to sections.] WORDS AND PHRASES (continued). "personal representatives," in will, 1334. "relations," in will, 1334. "relatives," in will, 1334. "representatives," in will, 1334. WORDS OF INHERITANCE unnecessary to transfer fee, 1072. WORKMAN lien on threshing- machine, etc., 3061. WORKMANSHIP combined with property of another, ownership of article produced, 1214. WRECKS AND W^RECKED PROPERTY deposit in case of shipwreck, 1815. duty of depositary, 1816. Kag-es of seamen not lost by, 2058. WRITING. See tit. Statute of Fraiid.s. contract in how altered, 1698. prevented by fraud from being- in, specific enforcement, 1623. printed part controlled by, 1651. erroneous disregarded, how far, 1640. fraud, prevent putting contract in, enforcement, 1623. instrument in consideration presumed, 1614. negotiable, transferable, 1459. intention of parties, how ascertained, 1637. private, property in, 985. productions of the mind in, property of, 980, 984. supersedes prior oral negotiations, 625. transfer must be in, when, 1135. WRITTEN INSTRUMENT consideration presumed, 1614. WRITTEN RECEIPT debtor has a right to require, 1499. WRONG consent to, no wrong suffered, 3515. lunatics liable for, 41. minors liable for, 41. own, advantage cannot be taken of, 3517. parties equally in the, courts will grant no relief, 3524. remedy for every, 3523. WRONGFUL OCCUPANCY damages for, 3334. YEARLY WORK. See tits. Development Work; Mining Claims. 1952 ^^ 1 I IICSdlirHlffNUfMUNAI I IIIHAHY I ACUITY AA 000 9?4 538 2 {{$ w