Bjjff^tffi"^^^^ ^^^'^MMM'^ . l^^'M/j ^--(X^ ^ £^ I THB CIVIL CODE OF THB STATE OF CALIFORNIA, AS ENACTKD IN 1872, AMENDED AT SUBSEQUENT SESSIONS, AND ADAPTED TO THE CONSTITUTION OF 1879; AND AN APPENDIX OF GENERAL LAWS UPON THE SUB- JECTS EMBRACED IN THE CODE, WITH CITA- TIONS UP TO AND INCLUDING VOLUMBJ MI, CALIFORNIA KBTPO??: t'^NV3 DEPARTMENT JAN 7 1950 LlSf^ RY ^^■^^ ^ ^WNIVERSI.Y of CALIFORNIA R. M. SIMS, Of Ui6 San FraiH^isco Bac. SAN FRANCISCO: BANCROFT- WHITNEY COMPANY, JLaw Publishers and Law Booksellera. 1906. AH CONTENTS. I ^ 0(p DIVISION FIRST. Sections PART I. PERSONS 25-42 II. PERSONAL RIGHTS 43-50 III. PERSONAL RELATIONS 55-276 Title I. Marriage 55-181 Chapter L The contract of marriage 55-80 IL Divorce 82-148 III. Husband and wife 155-181 Title II. Parent and Child 193-230 Chapter L By birth 193-211 II. By adoption 221-230 Title III. Guardian and Ward 236-258 IV. Master rnd Servant 264-276 PART IV. CORPORATIONS 283-653 Title I. General Provisions Applicable to ail Corporations 283-403 Chapter 1. Formation of corporations 283-321a II. Corporate stock 322-349 in. Corporate powers 354-393 IV. Exteanon and dissolution of cor- porations 399-402 V. General provisions affecting corpo- rations 403-404 VI. Foreign corporations 405-410 Title II. Insurance Corporations 414-452 Chapter I. General provisions 414-420 II. Fire and marine insurance cor- porations 424-432 III. Mutual life, health, and accident insurance corporations ......... 437-452 rv. Mutual benefit and life associa- tions 452a-453 V. Corporations to discover fire and save property and human life from destruction thereby 453a-453c (S) P^B27.^08 Sections VI. Ute, liealth^ aoeideiit and annuity insurance on tlie assessment plan «**• 453d-4SSp Title III. Railroad Corporations 454^94 Chapter L Officers and corporate stock 4S4-459 n, Enumeratifm of powers • . , 465-478 m. Business, liow conducted •••••••, 479-494 Title IV, Street Railroad Corporations «. 497^11 V, Wagon Road Corporations 512^23 VK BHdge, Perry, Wharf, Chute, and Pier Corporations ,« 528-531 VII, Telegraph Corporations 536-541 VIM. Water and Canal Corporations 548-552 IX. Homestead Corporations 557-566 X« Cavlngs and Loan Corporations ...,,« 571-5S3a XL Mining Corporations o84^7 XIa. Corporations for the Form a t ion of Chambers of Commerce, Boards of Trade, Mechanics* Institutes and Other Kindred Associations 591-592 XIL Religious, Social, and Benevolent Cor- poraftloiis , ••• 593^05 XI la. Societies for the Prevention of Cruelty to Children and Animals €07-€07s XIIL Cemetery Corpmt A«neci»Mon» . .65Hh constitutes. (Repealed.) § 16. Degrees of care and diligence. (Repealed.) § 17. Degrees of negligence. (Repealed.) § 18. Notice, actual and constructive. § 19. Constructive notice, when deemed. § 20. Effect of repeal. § 21. This act, how cited. § 2. When this code takes effect. This code takes ef- fect at twelve o'clock noon on the first day of January, eighteen hundred and seventy-three. En. March 21, 1872. Effect of codes generally: See Pol. Code, sees. 4478 et seq. Similar provision in other codes of California: See sec. 2 thereof. Publication of the codes: See Pol. Code, sec. 4494. § 3. Not retroactive. No part of it is retroactive, un- less expressly so declared. En. March 21, 1872. Cal. Rep. Cit. 95, 201; 106, 680; 133, 527. § 4. Rules 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 es- tablishes the law of this state respecting the subjects to which it relates, and its provisions are to be liberally con- strued with a view to effect its objects and to promote justice. En. March 21, 1872. Cal. Rep. Cit. 51, 257; 54, 619; 66, 434; 67, 386; 69, 370; 74, 590; 75, 56; 98, 551; 104, 299; 104, 302; 105, 558; 107, 4; 123, 201; 124, 397; 125, 68; 127, 126; 136, 142; 145, 715; 146, 247; 146, 465. Effect of codes generally: See PoL Code, sees. 4478 et seq. 15 PRELIMINARY PROVISIONS. §5 5-7 § 5. Provisions similar to existing laws, how construed. The provisions of this code so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enact- ments. En. March 21, 1872. Cal. Rep. Cit. 75, 69; 87, 647; 98, 33; 104, 584; 120, 491; 120, 493; 120, 494; 121, 246; 130, 382; 136, 142. § 6. Actions, etc., not affected. No action or proceed- ing commenced before this code takes effect, and no right accrued, is affected by its provisions. En. March 21, 1872. Cal. Rep. Cit. 95, 202. Similar provisions: See Code Civ. Proc, sec. 8; PoL Code, sec. 8. The amendatory act of March 30, 1874, amendments 1873-4, 181-269, from which most of the amendments and new sections of the Civil Code are taken, contained three additional sections, relating to its effect, as follows: Sec. 286. All provisions of law inconsistent with the provisions of this act are hereby repealed, but no rights acquired or proceedings taken under the provisions re- pealed shall be impaired or in any manner affected by this repeal; and whenever a limitation or period of time is prescribed by such repealed provisions for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this act takes effect, and the same or any other limitation is prescribed by this act, the time of limitation which shall have run when this act takes effect shall be deemed part of the time prescribed' by this act. Effect of amendatory act as to other acts passed at ses- sion of 1871-2 is shown by the following provision: Sec. 287. With relation, to the laws passed at the pres- ent session of the legislature, this act must be construed as though it had been passed at the first day of the present session; if the provisions of any law passed at the present session of the legislature contravene or, are inconsistent with the provisions of this. act, the provisions of such law must prevail. Sec. 288. This act shall take effect on the * first day ot July, one thousand eight hundred and seventy-four. § 7. Holidays. Holidays, within the meaning of this code, are every Sunday, the first day of January, the l"7 /km' d. §§ 8-12 PRELIMINARY PROVISIONS. 16 twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the first Monday of September, the twenty-fifth day of De- cember, every day on which an election is held through- out the state, and every day appointed by the president of the United States, or by the governor of the state, for a public fast, thanksgiving, or holiday. If the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of Sep- tember, or the twenty-fifth day of December shall fall upon a Sunday, the Monday following is a holiday. En. March 21, 1872. Am'd. 1880, 9; 1889, 47; 1893, 186; 1897, 14. § 8. Same. En. March 21, 1872. Rep. 1905, 11. § 9. Business days. All other days than those men- tioned in section seven are to be deemed business days for all purposes. En. March 21, 1872. Am*d. 1905, 11. See sec. 11. § 10. Computation of time. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded. En. March 21, 1872. Cal. Rep. Cit. 107, 284; 118, 88; 119, 88; 131, 594. Time, how computed, and year, week, and day defined: See Pol. Code, sees. 3255 et seq. § 11. Certain acts not to be done on holidays. When- ever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, it may be performed upon the next business day with the same effect as if it had been performed upon the day appointed. En. March 21, 1872. Cal. Rep. Cit. 110, 551; 136, 193; 136, 256. § 12. Joint authority construed. Words giving a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. En. March 21, 1872. Cal. Rep. Cit 100, 132. Similar provisions: Code Civ. Proc, sec. 15; Pol. Code, sec. 15. 17 PRELIMINARY PROVISIONS. §§ 13, 14 § 13. Words and phrases, how construed. Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in the suc- ceeding section, are to be construed according to such peculiar and appropriate meaning or definition. En. March 21, 1872. Cal. Rep. Cit 75, 73; 131, 4S5; 136, 464; 1S8, 366; 145, 84; 145, 409; 146, 733. Similar provisions; See Code Civ, Proc, sec. 16; Pol. Code, lec. 16. Words and phrases, how construed. — The above is the general rule with regard to the construction of words, whether in contracts, statutes, or constitutions. The meaning to be given to words in contracts is provided for in this code, sees. 1644, 1645, and in the Code of Civil Pro- cedure, sec. 1861. § 14. Certain terms defined. Words used in this code in the present tense include the future as well as the pres- ent; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word person in- cludes a corporation as well as a natural person, county includes city and county; writing includes printing and typewriting; oath includes afiirmation or declaration; and every mode of oral statement, under oath or aflarmation, is embraced by the term '^testify," and every written one in the term "depose;" signature or subscription includes mark, when the person cannot write, his name being writ- ten near it, 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 sworn statement be wit- nessed by two persons who must subscribe their own names as witnesses thereto. The following words have in this code the signification 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 property" include money, goods, chattels, things in action, and evidences of debt; Civil Code-fi §S 16-11 PRELIMINARY PROVISIONS. 18 4. The word **moiith** means a calendar month, unless otherwise expressed; 5. The word "will" includes codicil; 6. The word "section" whenever hereinafter employed refers to a section of this code, unless some other code or statute is expressly mentioned. En. March 21, 1872. Am'd. 1873-4, 181; 1903, 407. Cal. Rep. Cit 54, 109; 62, 184; 72, 57; 73, 322; 91, 248; 96, 600; 110, 396; 113, 353; 135, 172; 140, 409; 141, 115. Subd. 2—142, 539. Subd. 3—73, 322; 142, 539. Suhd. 4—131, 594; 133, 71; 134, 289; 135, 172. Subd. 5—68, 375. Similar provisions: Pol. Code, sec. 17; Code Civ. Proc, sec. 17; Pen. Code, sec. 7. Words used in boundaries are defined in sees. 3903 to $907 of the Political Code. S 15. Good faith, what constitutes. (Repealed.) Ehi. Bfarch 21, 1872. Rep. 1873-4, 182. § 16. Degrees of care and diligence. (Repealed.) En. March 21, 1872. Rep. 1873-4, 182. S 17. Degrees of negligence. (Repealed.) En. March 21, 1872. Rep. 1873-4, 182. CaL Rep. Cit 53, 460; 66, 590. § 18. Notice, actual and constructive. Notice is: 1. Actual — ^Which consists in express information of a fact; or, 2. Constructive — ^Whlch is imputed by law. En. March 21, 1872. CaL Rep, Cit 97, 584; 118, 260; 119, 451; 131, 587; 132, 593. § 19. Constructive notice, when deemed. Ehrery person who has actual notice of circumstances suflacient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, 19 PRELlMlKARf PROVISIONS. §§ 20, 21 by prosecuting such inquiry, he might have learned sucH fact. En. March 21, 1872. Am'd. 1873-4, 182. Cal. Rep. Cit 77, 456; 82, 626; 97, 584; 118, 260; 119, 451; 120, 284; 122, 101; 122, 521; 123, 166; 128, 224; 131, 587; 139, 257; 140. 46. Constructive notice — Recording instruments: See post, sec. 1213. § 20. Effect of repeal. No statute, law, or rule is con- tinued in force because it is consistent with the provisions of this code on the same subject; but in all cases pro- vided for by this code, all statutes, laws, and rules hereto- fore in force in this state, whether consistent or not with the provisions of this code, unless expressly continued in force by it, are repealed or abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right al- ready existing or accrued, or any action or proceeding already taken, except as in this code provided. En. March 21, 1872. Cal. Rep. Cit. 68, 303; 96, 493; 109, 580; 121, 364. Similar provisions: Pol. Code, sec. 18; Code Civ. Proc, sec. 18. Statutes continued in force: See sec. 19 of the Politi- cal Code and sec. 23 of the Penal Code and Statutes in force. Vested rights: See ante, sec. 6. § 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 number of the section. En. March 21, 1872, Title of the act: See ante, sec 1. DIVISION FIEST. Part I. Persons, §§ 25-42. II. Personal Rights, §§ 43-50. III. Personal Relations, §§ 55-276. IV. CorporaUons, §§ 283-653. PAET L PERSONS. § 25. Minors, who are. § 26. Periods of minority, how calcialated. § 27. Adults, who are. § 28L Status of minors, how changed. (Repealed.) § 29. Unborn child. § 30. Persons made a'dults by other states, considered as stich Im thUi state, when domiciled herein. (Repealed.) § SI. Minors by the laws of other state or country, how considered In this state. (Repealed.) § 32. Custody of minors. § 33. Minors cannot grive a delegation of power. § 34. Contracts by minors. § 35. When minor may disaffirm. I 36. Cannot disaffirm contract for necessaries. $ 37. Nor certain obligations. § ZS. Contracts of persons without understanding. § 39. Contracts by persons of unsoun-d mind. § 40. Powers of persons whose incapacity has been adjudged. § 41. Minors liable for wrongs, but not liable for exemplary damages. § fi. Minors may enforce their rights. § 25. Minors, who are. Minors are: 1. Males under twenty-one years of age; 2. Females under eighteen years of age. En. March 21, 1872. Cal. Rep. Cit. Subd. 2—119, 601. § 26. Periods of minority, how calculated. The periods specijSed in the preceding sectfon must be caloalated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority. En. March 21, 1872. § 27. Adults, who are. All other persons are adults. En. March 21, 1872. § 28. Status of minors, how changed. (Repealed.) En. ; March 21, 1872. Rep. 1873-4, 182. § 29. Unborn child. A child conceived, but not yet born, is to be deemed an existing person, so far as may be (») §§ 30-35 PERSONS. M necessary for its interests in the event of its subsequent birth. En. March 21, 1872. Cal. Rep. Cit 87, 21; 132, 580; 139, 483. Posthumous chfldren, rights of: See post, sees. 698, 739, 1339, 1403. § 30. Persons made adults by other states, considered as such in this state, when domiciled herein. (Repealed.) En. March 21, 1872. Rep. 1873-4, 182. § 31.. Minors by the laws of other state or country, how considered in this state. (Repealed.) En. March 21, 1872. Rep. 1873-4, 182. § 32. Custody of minors. The custody of minors and persons of unsound mind is regulated by Part III of this dJYision. En. March 21, 1872. § 33. iVIinors cannot give a delegation of power. A minor cannot give a delegation of power, nor under the age of eighteen, make a contract relating to real property, or any interest therein, or relating to any personal prop- erty not in his immediate possession or control. En. March 21, 1872. AmM. 1873-4, 182. Cal. Rep. Cit. 74, 56; 115, 151. § 34. Contracts by minors. A minor may make any other contract than as above specified, in the same manner as an adult, subject only to his power of disaffirmance un- der the provisions of this title, and subject to the provi- sions of the titles on Marriage, anid on Master and Servant. En. March 21, 1872. Am'd. 1873-4, 183. Marriage: See sees. 56 et seq. Master and servant: See sees. 264 et seq. § 35. When minor 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 by the minor himself, either before his majority or within a reasonable time afterwards; or, in case of his death within that period, by his heirs or personal representatives; and if the contract be made by the minor whilst he is over the age of eighteen;^ 25 PERSONS. §5 8«-^ It may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received, or paying its equivalent.. En. March 21, 1872. Am*d. 1873-4, 183. Cal. Rep. Clt. 66, 337; 89, 581; 123, 639; 123, 64L . § 36. Cannot disaffirm contract for necessaries. A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them. En. March 21, 1872. Am'd. 1873-4, 183. Cal. Rep. Cit. 123, 640. § 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. En. March 21, 1872. Cal. Rep. Cit. 123, 640. § 38. Contracts of persons without understanding. A person entirely without understanding has no power to make a contract of any kind, but he is liable for the rea- sonable value of things furnished to him necessary for his support or the support of his family. En. March 21, 1872, Am'd. 1873-4, 183. Cal. Rep. Cit. 85, 190; 110, 296; 134, 568; 139, 511. § 39. Contracts by persons of unsound mind. A con- veyance or other contract of a 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. En. March 21, 1872. Am'd. 1873-4, 184. Cal. Rep. Cit. 85, 190; 110. 296; 140, 152. Rescission of contracts: See post, sees. 1688-1691, 8406- 8408. § 40. Powers of persons whose Incapacity has been ad- judged. After his incapacity has been judicially deter- mined, a person of unsound mind can make no conveyance or other contract, nor delegate any power, or waive any right, until his restoration to capacity. But a certificate §§ 41, 4J PERSONS. 28 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 discharge. En. March 21, 1872. Am'd. 1877-8, 75. Cal. Rep. Cit. 57, 531; 87, 198; 110, 296. § 41. Minors liable for wrongs, but not liable for ex- emplary damages. A minor or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful. En. March 21, 1872. § 42. Minors may enforce their rights. A minor may enforce his rights by civil action, or other legal proceed- ings, in the same manner as a person of full age, except that a guardian must conduct the same. En. March 21, 1872. Cal. Rep. Cit 74, 66. PART 11. PERSONAL RIGHTS. § 43. General personal rights. § 44. Defamation, what. § 45. Libel, what. § 46. Slander, what. § 47. What communications are prlvllegred. § 48. Malice not inferred. § 49. Protection to personal relations. § 50. Right to use force. § 51. Personal rights, all personal persons have equal. § 52, Violation of personal rights, damages. § 53. Admittance to places of amusement, etc., on presentatlom of ticket or price of ticket; exceptions. § 54. Violation of right of admission to place of amusement, damages. § 43. General personal rights. Besides the personal rights mentioned or recognized in the Political Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily re- straint or harm, from personal insult, from defamation, and from injury to his personal relations. En. March 21, 1872. Cal. Rep. Cit. Ill, 45; 119, 601; 122, 256; 124, 199. Political rights and duties: See Pol. Code, sees. 50-60. g 44. Defamation, what. Defamation is effected by: 1. Libel; 2. Slander. En. March 21, 1872. Cal. Rep. Cit. 70, 136. § 45. Libel, what. Libel is a false and unprivileged publication by writing, printing, picture, effigy, 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. En. March 21, 1872. Cal. Rep. Cit. 69, 528; 69, 529; 70, 275; 114, 272; 132, 227; 146, 620. Pleading libel: See sees. 460, 461, Code Civ. Proc. Privileged publication: See sees. 47, 48, infra. § 46. Slander, what, Slander is a false and unpriv- ileged publication other than libel, which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; (87) II 47, 48 PKRSONAI, RIGHTS. 2S 2. Imputes in him the present existence of an infections, contagious, or loathsome disease; 3. Tends directly to injure him in respect to liis office, profession, 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 dam- age. En. March 21, 1872. Cal. Rep. Cit. 67, 80; 68, 193; 70, 218; 82, 526; 84, 180; 91, 111; 105, 320; 123, 159. Subd. ^-122, 61. Subd. 3— 137, 343. § 47. What communications are prtviiegefl. A priyi- 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 in- terested therein, by one who is also interested, or by on« who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information. 4. By a fair and true report, without malice, in a public journal, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof, or of a verified charge or complaint made by any person to a public 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. En. March 21, 1872. Am'd. 1873-4, 184; 1895, 167. Cal. Rep. Cit 69, 529; 69, 627; 69, 630; 93, 70; 93, 236; 137, 349; 146, 620. Subd. 3—91, 112; 111, 611; 111, 612; 137, 349. Subd. 4—132, 229. § 48. Malice not inferred. In the cases provided for in snbdi visions three, four, and five, of the preceding section* 29 PETRSONAL RIGHTS. §§ 49-52 ,, malice is not inferred from the communication or publica- r tion. En. March 21, 1872. Am'd. 1895, 167. Cal. Rep. Cit 70, 136; 93, 70; 132, 229; 146, 620. § 49. Protection to personal relations. The rights of personal relation forbid: 1. The abduction of a husband from his wife, or of a parent from his child. 2. The abduction or enticement of a wife from her husband, or a child from a parent, or from a guardian en- titled 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. En. March 21, 1872. Am'd. 1905, 68. Cal. Rep. Cit. 98, 582; 122, z56; 122, 257; 122, 259. Action for seduction: See sees. 374, 375, Code Civ. Proc. § 50. Right to use force. Any necessary force may be used to protect from wrongful injury the person or prop- erty of one's self, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest. En. March 21, 1872, Am'd. 1873-4, 184. Lawful resistance to the commission of offenses: See Pen. Code, sees. 692-694. § 51. Personal rights, all persons have equal. All citi-; zens within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities, and privileges of inns, restaurants, hotels, eating houses, bar- ber-shops, bath-houses, theaters, skating-rinks, and all other piaces of public accommodation or amusement, sub- ject only to the conditions and limitations established by law and af-^licable alike to all citizens. En. Stats. f905, 553. 51, 52. The statute of 1897, page 137, relating to the rights of persons, is codified in the two sections above named.— Code Commission- er's Note, § 52. Violation of personal rights; damages. Who- ever violates any of the provisions of the last preceding section, by denying to any citizen, except for reasons ap- plicable alike to every race or color, the full accommoda- tions, advantages, facilities, and privileges in said section enumerated, or by aiding or inciting such denial, or who- I § 53, 54 PERSONAL. RIGHTS. 30 ever makes any discrimination, distinction, or restriction on account of color or race, or except for good cause, ap- plicable alike to all citizens of every color or race what- ever, in respect to the admission of any citizen to, or his treatment in, any inn, hotel, restaurant, eating-house, bar- ber-shop, bathhouse, theater, skating-rink, or other pub- lic place of amusement or accommodation, whether such place is licensed or not, or whoever aids or incites such discrimina on, 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 ac- tion at law brought for that purpose. En. Stats. 1905, 553. See note to § 51, ante, § 53. Admittance to places of amusement, etc., on pres- entation of ticket, or price of ticket; exceptions. It is un- lawful for any corporation, person, or association, or the propriecor, lessee, or the agents of either, of any opera house, theater, melodeon, museum, circus, caravan, race- course, fair, or other place of public amusement or enter- tainment, 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. Any person under the influence of liquor, or who is guilty of boisterous conduct, or any person of lewd or immoral character, may be excluded from any such place of amuse- ment En. Stats. 1905, 554. 63, 64. The statute of 1893, page 220, relating to the rigrhts of persoas. Is codified in the sections above named. — Code Commissioner's Note. § 54. Violation of right of admission to place of amuse- ment; damages. Any person who is refused admission to any. place of amusement contrary to the provisions of the last preceding section, is entitled to recover from the pro- prietor, 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. En. Stats. 1905, 554. See note to § 53, ante. PAETIIL PERSONAL. RELATIONa Title I. Marriage, §§ 55-181. II. Parent and Child, §§ 193-230. III. Guardian and Ward, §§ 236-25a IV. Master and Servant, §§ 264-276, TITLE L MARRIAGE. Ckapter L The Contract of Marriage, §§ 55-80, II. Divorce, §§ 82-148. in. Husband and Wife, §§ 155-181. CHAPTER I. THE CONTRACT OP MARRIAQS. Article L Validity of Marriage, §§ 55-63. IL AuthcnUcation of Maniage, §§ 68-79%. III. Judicial Determination of Void Marriage, { 80u ARTICLE I. VALIDITY OF MABRIAG®. § 55. What constitutea marriage, § 56. Minors capable of contracting marriage. § 57. Marriage, how manifested and proyed. { 58. CertaiJB marriages voidable. § 59. Incompetency of parties to. § 60. Marriages illegal. § 61, Marriage illegal unless dlvoroed one year; or absexrt 1h § 62. Released from marriage contract, wheH. § 63. Marriage contracted without the state. § 55. What constitutes marriage. Marriage is a per- sonal relation arising out of a civil contract, to which the consent of parties capable of making that contract is nec- essary. Consent alone will not constitute marriage; it must be followed by a solemnization authorized by this code. En. March 21, 1872. Am'd. 1895, 121. Cal. Rep. Cit. 67, 212; 75, 8; 75, 9; 75, 12; 75, 13; 75, 14; 75, 15; 75, 16; 75, 17; 75, 18; 75, 19; 75, 21 75, 22; 75, 23; 75, 24; 75, 35; 75, 50; 75, 51; 75, 57 75, 59; 75, 72; 75, 76; 79, 644; 79, 651; 79, 667 79, 669; 79, 684; 81, 189; 82, 416; 82, 417; 89, 49 89, 50; 99, 288; 104, 261; 104, 633; 104, 634; 105, 360 121, 628; 121, 629; 128, 310; 133, 527; 137, 146. §§ 56-61 CXDNTRACT OF MARRIAGE. ^ § 56. Minors capable of contracting marriage. Any un- married male of the age of eighteen years or upwards, and any unmarried female of the age of fifteen years or up- wards, and not otherwise disqualified, are capable of con- senting to and consummating marriage. En. March 21, 1872. Cal. Rep. at. 75, 14; 75, 16; 79, 667; 123, 226. § 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. En. March 21, 1872. Am'd. 1895. 121. Cal. Rep. at. 75, 15; 75, 16; 75, 51; 75, 52; 75, 63; 75, 76; 79, 667; 79, 686; 79, 694; 116, 313; 133, 527. § 58. Certain marriages voidable. En. March 21, 1872. Am'd. 1873-4, 1&5. Rep. 1905, 554. ^he provislona of this section axe contained in the present section tt. The section is therefore unnecessary. — Code Comnils>rioner*s Note. Cal. Rep. at 138, 549. Penalty for false personation In marital relations: Pen. Code, sec. 528. See also, post, sec 82, subd. 4. i 59. Incompetency of 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, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or ille- gitimate. En. March 21, 1872. Penalty for incestuous marriages: Pen. Code, sees. 285, S59. § 60. Marriages, illegal. All marriages of white per- sons with negroes, mongolians, or mulattoes are illegal and void. En. March 21, 1872. Am'd. 1905, 554. The change consists in the insertion of the word "mongoliana** after the word "negrroes."— Code Commissioner's Note. Cal. Rep. at. 137, 135. § 61. Marriage illegal unless divorced one year; or absent five years. A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former hus- band or wife, is illegal and void from the beginning, un- less: n CONTRACT OP MARRIAGK. §§ 62, 68 L 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 proceeding for divorce. 2. Unless such former husband or wife is absent, and not known to such person to be living for the space of five successive years immediately preceding such subse- quent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent mar- riage was contracted. In either of which cases the subse- quent marriage is valid until its nullity is adjudged by a competent tribunal. E5n. March 21, 1872. Am'd. 1873-4, 185; 1897, 34; 1903, 176. Cal. Rep. Cit 94, 459; 133, 527; 137, 131; 137, 132 137, 135; 137, 137; 137, 138; 137, 139; 137, 142 137, 144; 139, 632; 140, 248; 140, 249; 140, 485 140, 488; 146, 247; 146, 249; 146, 252. Subd. 1—137, 133; 137, 134. Subd. 2—94, 464; 140, 247. Penalty for bigamy: Pen. Code, sees. 283-84; exceptions. Idem, sec, 282. § 62. Released from marriage contract, when. 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. En. March 21. 1872. Am'd. 187S-4. 185. § 63. Marriage contracted without the state. All mar- riages contracted without this state, which would be valid by the laws of the country in which the same were con- tracted, are valid in this state. En. March 21, 1872. Cal. Rep. Cit. 121, 624; 137, 135; 137, 136; 187, 137; 137, 138; 137, 139; 137, 145; 137, 147. ARTICLE n. AUTHENTICATION OF MARRIAGB. 5 68. Procedure required. I 69. Marriage licenses. 5 TO. By whom solemnized. I 71. No particular form of solenfmizatloa. I 72. Requirements by persons solemnizing marriaga. I 73. Certificate of marriage. I 74, Certificate to parties and recorder. § 75. Declaration where there is no record. (Kepealed.) § 76, Declaration to contain what. § 77. To be acknowledged and recorded. § 78, Either party may proceed to determine validity, I 79, Persons who may be married without llceoBe. I T9a. Members of partlcnlar religious denomlnatkm. Civil Cod^— 8 §§ 68-70 CONTBACT OF MARRIAGE. M § 68. Procedure required. Marriage must be licensed, solemnized, authenticated, and recorded as provided in tMs article; but noncompliance with its provisions by others than a party - to a marriage does not invalidate it. En. March 21, 1872. Am'd. 1895, 121; 1905, 554. The change consists in the substitution of the word "others" for "other" before "than"; the substitution of "a party" for "the par- ties" after "than"; and the substitution of "it" for "that marriagre" after "invalidate." The meaning of the section is unchanged. — Code Commissioner's Note. CJal. Rep. Cit 104, 261; 116, 311; 121, 628; 133, 527. P- ^b9 § 69. Marriage licenses. All persons about to be joined n marriage must first obtain a license therefor from the §69 iounty clerk of the county in which the marriage is to be Am'd,2elebrated, and must upon oath qualify and show as fol- n ^qq^ows: 1. The identity of the parties; 2. Their real and full names and places of residence; 3. Their ages; 4. No license must be granted when either of the parties applicants therefor is an imbecile or insane, or who at the time of making application for said license is under the in- fluence of any intoxicating liquor, or narcotic drug; 5. No license must be issued authorizing the marriage of a white person with a negro, mulatto, or mongolian; 6. If the male is under the age of twenty-one, or the female under the age of eighteen years, the consent of the father, mother or guardian, if such consent is given; or that such nonage person has been previously, but is not at the time married. If the male is under the age of twenty-one, or the female under the age of eighteen years, and such person has not been previously married, no license must be issued by the clerk, unless the consent in writing of the parents of the person under age, or one of such parents, or of his or her guardian is presented to him duly verified by such parents or parent or guardian; and such consent must be filed by the clerk and he must state such facts in the license. For the purpose of ascertaining all the facts mentioned and re- quired in this section, the clerk must at the time the license Is applied for examine the parties to whom the license is to be issued under oath and reduce such examination to writing to be by them subscribed. En. March 21, 1872. Am'd. 1873-4, 185; 1880, 3; 1905, 182. Cal. Rep. Cit. 59, 374; 116, 311; 121, 629; 123, 226. § 70. By whom solemnized. Marriage may be solera- .-Q nized by either a justice of the supreme court, judge of the ^ ,j^ Buperior court, justice of the peace, judge of any police 3.* CONTRACT OP MARRIAGE. §{ 71-76 court, city recorder, priest or minister of the gospel of any denomination. En. March 21, 1872. Am'd. 1880, 4; 1903, 255. Cal. Rep. Cit. 75, 12; 116, 311; 121, 628; 121, 629; 140, 221. Form of marriage ceremony: See Const. Cal. 1879, art. XX, sec. 7; see, also, art. XI, sec. 12, former constitution. Penalty for solemnization of illegal marriage: Pen. Code, Bee. 359. § 71. No particular form of solemnization. No particu- lar form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solem- nizing the marriage, that they take each other as husband and wife. En. March 21, 1872. Cal. Rep. Cit. 75, 12; 121, 628; 133, 527. § 72. Requirements by persons solemnizing marriage. 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 himiself of its correctness, and for that purpose he may administer oaths and examine the parties and witnesses in like manner as the county clerk does before issuing the license. En. March 21, 1872. Am d. 1873-4, 186. § 73. Certificate of marriage. The person solemnizing a marriage must make, sign, and indorse upon, or attach to, the license, a certificate showing: 1. The fact, time and place of solemnization; and 2. The names and places of residence of one or more witnesses to the ceremony. En. March 21, 1872. Am'd, 1873-4, 187. Penalty for false return: Pen. Code, sec. 360. § 74. Certificate to parties and recorder. He must, at the request of, and for either party make a certified copy of the license and certificate, and file the originals with the county recorder within thirty days after the marriage. En. March 21, 1872. Recorder must record: Pol. Code^ sec. 4235. § 75. Declaration where there is no record. (Re- pealed.) En. March 21, 1872. Rep. 1895, 121. Cal. Rep. Cit. 75, 60; 75, 66; 75, 77; 79, 651; 104, 261; 116, 311; 121. 628. § 76. Declaration to contain what. If no record of the solemnization of a marriage heretofore contracted be known to exist, the parties may join in a written declara- tion of such marriage, substantially showini;: § § 77-79a CONTRACT OF MARRIAGtE. X 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. En. March 21, 1872. Am'd. 1873-4, 187. Cal. Rep. Cit. 116, 310; 116, 311; 116, 312; 121, 629. Eecording: Sec. 79a, post. § 77. To be acknowledged and recorded. Declarations of marriage must be acknowledged and recorded in like manner as grants of real property. En. March 21, 1872. Cal. Rep. Cit. 75, 77; 116, 311; 121, 629. Recording: See Pol. Code^ sec. 4235. § 78. Either party may proceed to determine validity. If either party to any marriage denies the same, or refuses to join in a declaration thereof, the other may proceed, by action in the superior court, to have the validity of the marriage determined and declared. En. March 21, 1872. AmM. 1883, 3. Cal. Rep. Cit. 67, 194; 67, 195; 75, 12; 121, 623. § 79. Persons who may be married without license. Wlien unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such marriage must, by the clergyman, be made and delivered to the parties, and recorded upon the records of the church of which the clergyman is a representative. No other record need be made. En. Stats, 1877-8, 75. Cal. Rep. Cit 104, 261. § 79a. Members of particular religious denomination. The provisions of this chapter, so far as they relate to the solemnizing of marriages, are not applicable to members of any particular religious denomination having, as such, any peculiar mode of entering the marriage relation; but such marriages must be declared, as provided in section seventy- six, and be aclmowledged and recorded, as provided in sec- tion seventy-seven. Where a marriage is declared as pro- vided in said section seventy-six, the husband must file said declaration with the county recorder within thirty days after such marriage, and upon receiving the same the county recorder must record the same; and if the husband fails to make such declaration and file the same for recora, as herein provided, he is liable to the same penalties as any person authorized to solemnize marriages, who fails to make the return of such solemnization as provided by hiw. En. Stats. 1897, 186. Am'd. 1905, 555. 37 DIVORCB. §§ 80, 82 79a (79%). The change consists in the omission of the words "procur- ing a license and" after "to," thus requiring a license in every case, but leaving the mode of celebrating the marriage as at present. The section is renumbered 79a. — Code Comroissioner's Note. Cal. Rep. Cit 121, 629. ARTICLE III. JUDICIAL DETERMINATION OP VOID MARRIAGES. § 80. Action to hare marriage declared rold. § 80. Action to have marriage declared void. Elither paxty to an incestnous or void marriage may proceed by action in the superior court, to have the same so declared. En. Stats. 1875-6, 69. Am'd. 1880. 4. CHAPTER n, DIVORCB. Article L Nunity, §§ 82-86. n. Dissolution, §§ 90-107. m. Canses for Denying Divorce, §§ lll-iaL IV. General Provisions, §§ 136-1^ ARTICLE Ix NUL.LITY. § 82. Cansee for annulling marriaffes. § 83. Actions therefor, when to be commenced. § 84. Children of annulled marriage.' I 85. Custody of children. § 86. Effect of judgment of nnnity. § 82. Causes for annulling marriages. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or person having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife. 2. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force. 3. That either party was of unsonnd mind, unless such party, after coming to reason, freely cohabit with the other as husband and wifo. § 83 DIVORCE. W 4. That the consent of either party was obtained by fraud, unless such party afterward, 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 incapacity continues, and appears to be incurable. En. March 21, 1872. Am'd. 1873-4, 187. Cal. Rep. Cit. 88. 565; 99, 287. Subd. 2—94, 464. Subd. 5—137, 27. Subd. 4. Consent obtained by fraud: See ante, sec. 58. Subd. 5. Consent obtained by force: See ante, sec. 58. Subd. 6. Physical incapacity: See ante, sec. 58. § 83. Actions therefor, when to be commenced. An action to obtain a decree of nullity of marriage 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 consent; or by a parent, guardian, or other person having charge of such nonaged male or female, at any time before such married minor has arrtved at the age of legal con- sent. 2. For causes mentioned In subdivision two: by either party during the life of the other, or by such former hus- band or wife. 8. For causes mentioned in subdivision three: by the party injured, or relative or guardian of the party of un- sound mind, at any time before the death of either party. 4. For causes mentioned in subdivision four: by the partj' injured, within four years after the discovery of the facts constituting the fraud. 5. For causes mentioned in subdivision five: by the injured party, within four years after the marriage. 6. For causes mentioned in subdivision six: by the in- jured party, within four years after the marriage. En. March 21, 1872. Am'd. 1873-4, 188. 89 DIVORCE. IS 84-88 5 84. Children of annulled marriages. A judgment of nullity of marriage does not affect the legitimacy of chil- dren begotten before the judgment. En. March 21, 1872. Am'd. 1905, 555. The design of the amendment Is to make the rule declared In this sec- tion applicable to all Judgments adjudging marriage null, the present flection applying only to cases where a marriage is annulled on the grround that a former husband or wife was living. — Code Commiaslon- er's Note. Cal. Rep. Cit. 57, 491. Legitimate children, who are: See sees. 193-195. See, also, when the question arises in divorce cases for adultery, sees. 144, 145. § 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. En. March 21, 1872. Custody of children in divorce causes: See post, sec. 188. I 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. En. March 21, 1872. Effect of decree for divorce: See post, sec. 91. ARTICLE n. DISSOLUTION OF MARRIAQB. M. Marriage, how dissolved, 91. Effect of divorce. 92. Causes for divorce. 98. Adultery defined. 94. Extreme cruelty, what. 95. Desertion, what, 96. Desertion, how manifested. 97. In case of stratagem or fraird, who commits desertion. 98. In case of cruelty, where one party leaves the other, who com- mlts desertion. § 99. Separation by consent not desertion. I 100, Absence becomes desertion, when. § 101. Consent to separate revocable. § 102. Desertion, how cured. Effect of refusing condonation. § 103. Wife must abide by husband's selection of home or it 1« deser- tion on her part. • 104. : the place is unfit, awd wife refuses to conform. It is desertion "^ the husband. 105. Willful neglect, wnat. 106. Habitual Intemperance, what. 107. Habitual intemperance, etc., for one year. §§ 90-94 DIVORCB. « § 90. Marriage, how dissolved. Marriage Is dissolved only: 1. By the death of one of the parties; or, 2. By the judgment of a court of competent jurisdiction decreein-g a divorce of the parties. En. March 21, 1872. Am'd. 1873-4, 189. Cal. Rep. Clt. 187, 27; 137, 184; 187, 137; 137, 138; 137,- 139; 137, 144. § 91. Effect of divorce. The effect of a judgment de- creeing a divorce is to restore the parties to the state of unmarried persons. En. March 21, 1872. Am'd. 1873-4, 189. Cal. Rep. Clt. 187, 133; 187, 184; 187, 187; 187, 138; 187 139; 137, 144; 140, 488. § 92. Causes for divorce. Divorces may be granted fop any of the following causes: 1. Adultery. 2. Extreme cruelty. 3. Willful desertion. 4. Willful neglect. 5. Habitual intemperance. 6. Conviction of felony. En. March 21, 1872. Am'd. 1873-4, 189. Cal. Rep. Clt. 51, 544; 74, 492; 85, 256; 126, 128. Subd. 3—135, 397. Alimony: See post, sees 136 et seq. Community property, and its disposition under proceed- ings for divorce: See post, sees. 141 et seq. § 93. Adultery defined. Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife. En. March 21, 1872. Cal. Rep. Cit. 51, 544. Open and notorious adultery Is punished by act of May 15, 1872. See Stats. 1871-2, p. 380. § 94. Extreme cruelty, what. Extreme cruelty is the vvrongful infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the mar- riage. En. March 21, 1872. Am'd. 1905, 75. Cal. Rop. Cit. 51, 544; 85, 256; 85, 267; 85, 269; 86, 224; 95, 176; 124, 652. 41 DrVORCB. §§ 95-100 § 95. Desertion, what. Willful desertion Is the volun- tary separation of one of the married parties from the other with intent to desert. En. March 21, 1872. Cal. Rep. Cit. 51, 544; 65, 632; 122, 255; 122, 256; 130, 577; 134, 89; 142, 523. § 96. Desertion, how manifested. Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion. En. March 21, 1872. Cal. Rep. Cit. 51, 544; 136, 196; 137, 560; 144, 627. § 97. In case of stratagem or fraud, who commits deser- tion. When one party is induced, by the stratagem or fraud of the other party, to leave the family dwelling- place, or to be absent, and during such absence the offend- ing party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other. En. March 21, 1872. Cal. Rep. Cit. 51, 544; 74, 613. § 98. In case of cruelty, where one party leaves the other, who 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 desertion by the other party. En. March 21, 1872. Cal. Rep. Cit. 51, 544; 74, 613; 86, 224; 122, 397; 122, 398; 134, 207. § 99. Separation by consent not desertion. Separation by consent with or without the understanding that one of the parties will apply for a divorce, is not desertion. En. March 21, 1872. Cal. Rep. Cit. 74, 613; 106, 544; 140, 115. Consent revocable: See infra, sec. 101. § 100. Absence becomes desertion, when. Absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separa- tion. En. March 21, 1872. Am'd. 1873-4, 189. Cal. Rep. Cit. 106, 544. §§ 101-105 DIVORCE. ^ § 101. Consent to separate revocable. Consent to a separation is a revocable act, and if one of the parties afterward, in good faith, seeks a reconciliation and restor- ation, but the other refuses it, such refusal is desertion. En. March 21, 1872. Cal. Rep. Cit 1Q5, 543; 106, 544; 134, 347; 140, 115; 140, 117; 140, 125; 147, 177. § 102. Desertion, how cured. Effect of refusing con- donation. 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 fulfill the marriage contract and solicits con- donation, 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 re- fusal. En. March 21, 1872. Am'd. 1873-4, 190. Cal. Rep. Cit. 65, 632; 123, 654; 123, 656; 126, 128; 147, 54. § 103. Wife must abide by husband's selection of home or it is desertion on her part. The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion. En. March 21, 1872. Cal. Rep. Cit 136, 203. Same principle: Post, sec. 156. Separate domicile for purposes of divorce proceedin-g: See infra, sec. 129. § 104. If the place is unfit, and wife refuses to conform, it Is desertion by the husband. If the place or mode of living selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him. En. March 21, 1872. Cal. Rep. Cit. 74, 613. § 105. Willful neglect, what. Willful neglect is the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation. En, March 21, 1872. Cal. Rep. Cit. 51, 544; 104, 296; 130, 577. Duration of neglect: See infra, sec 107. 43 DIVOKCE. §§ lOe-Ul § 106. Habitual intemperance, what. Habitual intem- perance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party. En. March 21, 1872. Cal. Rep. Cit. 62, 178; 80, 529; 96, 7; 130, 577. Duration of intemperance: See next section. § 107. Habitual intemperance, etc., for one year. Will- ful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for divorce. En. March 21, 1872. Cal. Rep. Cit. 74, 613; 122, 255: 123, 654; 135, 397. ARTICI.E III. CAUSES FOR DENTING DIVORCE. § 111. Divorces denied, on showing what. § 112. Connivance, what. § 113. Corrupt consent, how manifestesl. § 114. Collusion, what. § 115. Condonation, what. § 116. Requisites to condonation. § 117. Condonation implies what. § 118. Evidence of condonation. § 119. Condonation can only be made when. § 120. Concealment of facts in certain cases makes oondonatloa yoUL § 121. Condonation, how revoked. § 122. Recrimination, what. § 123. Condonation, when to bar defense. § 124. Divorces, denied, when. § 125. Lapse of time establishes certain presumptions, § 126. Presumptions may be rebutted. § 127. Limitation of time. § 12S. Residence of plaintiff. § 129. Proof of actual residence require!. Presumptlofis do not apply. § 130. Divorce not to be granted by default, etc. § 131. Inteilocutory judgment. § 132. Final judgment after one year. § 111. Divorces denied, on showing what. Divorces must be denied upon showing: 1. Connivance; or, 2. Collusion; or, 3. Condonation; or, 4. Recrimination; or, 5. Limitation and lapse of tima En. March 21, 1872. Cal. Rep. Cit 74, 613. Connivance: Post, sec. 112 et seq. Collusion: Post, sec. 114. Condonation: Post, sec. 115 et seq. §§ 112-118 iDtVORCrfi. 44 Re crimination: Post, sec. 122 et ae<|. Limitation and lapse of time: Post, seC. 124 et se<|* S 1T2. Connivance, what. Connivance Is tne corrupt consent of one party to the contmission of the acts of the other, constituting the cause of divorce. En. March 21, 1872. Cal. Rep. Git. 121, 12. § 113. Corrupt consent, how manifested. Corrupt con- sent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of. En. March 21, 1872. § 114. Collusion, what. Collusion is an agreement be- tween husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as havinjg committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. En. March 21, 1872. Cal. Rep. Cit. 65, a55; 121, 12. § 115. Condonation, what. Condonation is the con- ditional forgiveness of a matrimonial offense constituting a cause of divorce. En. March 21, 1872. Cal. Rep. Cit. 102, 438; 123, 656; 147, 54. Revoking condonation: Sec. 121, infra. Condonation of recriminatory defense: Post, sec. 123. § 116. Requisites to condonation. The following re- quirements 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. En. March 21, 1872. Cal. Rep. Cit. 95, 446; 102, 438; 147, 54. § 117. Condonation implies what. Condonation implies a condition subsequent; that the forgiving party must be treated with conjugal kindness. En. March 21, 1872. Cal. Rep. Cit. 117, 446; 120, 189; 147, 54. § 118. Evidence of condonation. Where the cause of divorce consists of a course of offensive conduct, or arises, in cases of cruelty, from excessive acts of ill-treatment, which may, aggregately, constitute the offense, cohabita- tion, or passive endurance, or conjugal kindness shall dot be evidence of condonation of any of the acts con- 45 tJrVOftCfi. . §§ U9-t24 stituting such cause unless accompanied by an express agreement to condone. En. March 21, 1872. Am'd. 1873-4, 190. Cal. Rep. Cit. 117, 447; 119, 188; 119, 192; 132, 476. § 119. Condonation can only be made when. In cases mentioned in the last section, condonation can be made only after the cause of divorce has become complete, as to the acts complained of. En. March 21, 1872. Am'd. 1873-4, 190. § 120. Concealment of facts In certain cases makes con- donation 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. En. March 21, 1872. § 121. Condonation, how revoked. Condonation is re- voked 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 i*s guilty of great conjugal un- kindness, not amounting to a cause of divorce, but suf- ficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith, or not fulfilled. En. March 21, 1872. Cal. Rep. at. 120, 189; 121, 12. § 122. Recrimination, what. Recrimination is a show- ing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. En. March 21, 1872. Cal. Rep. Cit. 63, 353; 74, 492; 119, 189. § 123. Condonation, when to bar defense. Condonation of a cause of divorce, shown in the answer as a recrimina- tory defense, is a bar to such defense, unless the con- donation be revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the con- donation, and before the accruing or completion of the cause of divorce against which the recrimination is shown. En. March 21, 1872. Am'd. 1873-4, 190. § 124. Divorces denied, when. A divorce must be denied: 1. When the cause is adultery, and the action is not commenced within two years after the commission of the §§ 125-12$ . t)tVORC®. « 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. En. March 21, 1872. Am'd. 1873-4, 191. CoL Rep. Cit 74, 613; 104. 296; 140, 118. Subd. 3—121, 12;- 140, 117. § 125. Lapse of time establishes certain presumptions. 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 continue the marriage relation, notwithstanding the commission of such offense. En. March 21, 1872. C«,l. Rep. Cit. 121, 12; 140, 118. § 126. Presumptions may be rebutted. The presump- tions arising from lapse of time may be rebutted by show- ing reasonable grounds for the delay in commencing the action. En. 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 124. En. March 21, 1872. § 12$. Residence of plaintiff. 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. En. March 21, 1872. Am'd. 1891, 52. CaL Rep. Cit 74, 613; 100, 13; 100, 15; 100, 17; 128, 332; 140, 483. § 129. Proof of actual residence required. Presump- tions 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 resi- dence, and not upon legal presumptions. En. March 21, 1872. Cal. Rep. Cit. 66, 310; 128, 274; 132, 92. 4g DIVORCE. §§ 130-132 § 130. Divorce not to be granted by default, etc. No dlvREN BY BISTH. | 153 TITLE II. PARENT AND CHILD. Chapter I. By Birth, §§ 193-215. II. By Adoption, §§ 221-230. CHAPTER I. CHILDREN BY BIRTH. § 133. Legitimacy of children born In wedlock. I 1!M. Chil\iren 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. S 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 exclusive con- trol of children. Decree in such cases. § 200. Custody of an illegitimate child. I 201. Allowance to parent. § 202. Parent cannot control the property of child. § 203, Remedy for parental abuse. I 204. When parental authority ceases. § 205. Remedy when a parent dies withoat providing for the support of his child. § 206. Reciprocal duties of parents and children in maintaining each oth^. I 207, When a parent is liable for necessaries supplied to a child. I 208. When a parent is not liable for support furnished his child. { 209. Husband not bound for the support of his wife's children by a former marriaire. § 210. Compensation and support of adult child. § 211. Parent may relinquish services and custody erf child. § 212. Wages of minors, § 213. RiiTht of parent to determine the residence of child. I 214. Wife in certain cases may obtain custody of minor childrem. § 215. Child legitimized by marriage of parents. § 193. Legitimacy of children bom in wedlock. All children born in wedlock are presumed to be legitiioate. En. March 21, 1872. Cal. Rep. Cit. 75, 381; 137, 300; 145, 715. Legitimacy of children of nullified marriage: See ante, sec. 84. Legitimacy in cases of adultery: See ante, sees. 144, 145. Rebutting presumption of legitimacy: Sec. 195, infra. Legitimating children by marriage of parents: See post, sec. 215. 15 iM-m CHILDREN BY BIRTH. 60 Father legitimating child by acknowledging it: Sec. 230; and compare post, sec. 1387. Mother entitled to custody of illegitimate unmariiea minor: See post, sec. 200. Illegitimate's earnings: See sec. 200. Illegitimates, heirs to whom: Post, sea 13S7. Mother succeeds to estate of illegitimate: Post, sec. 1388. § 194. Children after dissolution of marriage. All chil- dren of a woman who has been married, born within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage. Eil March 21, 1872. Am'd. 1873-4, 194. Gal. Rep. Cit. 75, 381; 137, 134. § 195. Who may dispute the iegitJmacy of a child. The presumption of legitimacy can be disputed only by the husband or wife, or the descendant of one or both of them. Illegitimacy, in such case, may be proved like any other fact En. March 21, 1872. Gal. Rep. Cit. 75, 381; 137, 303. § 196. Obligation of parents for the support and educa- tion of their children. The parent entitled 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 give are inade- quate, the mother must assist him to the extent of her ablUty. En. March 21, 1872. Cal. Rep. Cit. 71, 497; 95, 378; 109, 648; 130, 382; 134, 116; 145, 716. Action to enforce parental duty: Sec. 203, infra. Third person supplying necessaries: Sees. 207, 208, infra. Willful failure to support child is a misdemeanor: Fen. Code, sec. 270. Deserting child is a felony: Pen. Code, sec. 271. Disposing of child for mendicant purposes: See Pen. Code, sec. 272. Supporting poor relatives: See sec. 206, infra. Infury to child, action for: See Code Civ. Proc, sec 376. § 197. Custody of legitimate child. The father of a legitimate unmarried minor child is entitled to its cus- tody, 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 be dead, or be unable, or refuse to take the custody, or has n CHILDREN BY BIRTH. §§ 198-201 abandoned his family, the mother is entitled thereto. En. March 21, 1872. Am'd. 1873-4, 194. Cal. Rep. Cit. 95, 378; 130, 382; 134, 116; 137, 276;. 142, 426. Relinquishing right to child's earnings: Sec. 211, infra. Property of child, parent, as such, has no control of: Sec. 202, infra. Guardian, appointment of: See post, sees. 241 et seq. § 198. Husband and wife living separate, neither to have superior right to custody of children. The husband and father, as such, has no rights superior to those of the wife and mother, in regard to the care, ciistody, education, and control of the children of the marriage, while such husband and wife live separate and apart from each other, fin. March 21, 1872. Cal. Rep. Cit. 137, 276; 142, 426. Custody of child in divorce causes: See ante, sec. 138. § 199. When husband or wife may bring action for the exclusive controJ of children. Decree in such cases. With- out applicaaon for a divorce, the husband or the wife may bring an action for the exclusive control of the children of the marriage; and the court may, during the pendency of such action, or at the final hearing thereof, or afterwards, make such order or decree in regard to the support, care, custody, education, and control of the children of the mar- riage, as may be just, and in accordance with the natural rights of the parents and the best interests of the children, and may at any time thereafter amend, vary, or modify such order or decree, as the natural rights and the inter- ests of the parties, including the children, may require. En. March 21, 1872. Cal. Rep. Cit. 109, 649. Compare with sec. 214, infra. Control of children pending divorce proceedings: See ante, sec. 138. Awarding custody of child — Considerations that should govern the court: Post, sec. 246. § 200. Custody of an Illegitimate child. The mother of an illegitimate unmarried minor is entitled to its custody, services, and earnings. En. March 21, 1872. Mother the heir of illegitimate chad: Post, see. 1388. § 201. Allowance to parent. The proper court may di- rect an allowance to be made to the parent of a child, out §§ 202-205 CHILDREN BY BIRTH. ^ of its property, for its past or future support and educa- tion, on such conditions as may be proper, whenever such direction is for its benefit. En. March 21, 1872. § 202. Parent cannot control the property of child. The parent, ' as such, has no control over the property of the child. En. March 21, 1872. Same principle: Post, sec. 242. Guardian of minor's estate: See post, sees. z41 et seq. I 203. Remedy for parental abuse. The abuse of paren- tal authority is the subject of judicial cognizance in a civil action brought by the child, or by its relative within the third degree, or by the supervisors of the county where the child resides; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced. En. March 21, 1872. Cal. Rep. Cit. 103, 356; 103, 357; 109, 647; 109, 648; 109, 649; 109, 650; 109, 651; 109, 653; 109, 654; 109. 655; 109, 657; 109, 659; 109, 660; 109, 661; 124, 678; 143, 404; 143, 405. Parental duty: See ante, sec. 196. Omission to supply a child with necessaries is a misde- meanor, and desertion is punished by imprisonment: Pen. Code, sees. 270, 271. § 204. When parental authority ceases. The authority of a parent ceases: 1. Upon the appointment, by a court, of a guardian of the person of a child; 2. Upon the marriage of a child; or, 3. Upon its attaining majority. En. March 21, 1872. Cal. Rep. Cit. 109, 649; 119, 601; 142, 426; 143, 403. oubd. a— 119, 601. § 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, leaving it chargeable to the county, and 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, devLsees, and next of kin of the parent En. March 21, 1872 Cal. Rep. Cit, 109, 649. « CHILDREN BY BIRTH. §§ 206-2ia § 206. Reciprocal duties of parents and children in main- taining eacli other. It is the duty of the father, the mother, and the 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. En. March 21, 1872. Cal. Rep. Cit. 124, 54. Mother supporting children: Ante, sec. 196. Wife supporting husband: Ante, sec. 176. § 207. When a parent is liable for necessaries supplied to a child. If a parent neglects to provide articles neces- sary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value there- of from the parent. En. March 21, 1872. Cal. Rep. Cit 109, 649; 145, 716; 145, 717. Infant liable on icontract for necessaries: See sjite, sec 36. § 208. When a parent is not liable for support furnished his child. A parent is not bound to compensate the other parent, or a relative, for the voluntary support of his child, without an agreement for compensation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause. En. March 21, 1872. Cal. Rep. Cit. 125, 72. § 209. Husband not bound for the support of his wife's children by a fornner marriage. A husband is not bound to maintain his wife's children by a former husband; but if he receives them into his family and* supports them, it is presumed that he does so as a parent, and, where such is the case, they zre not liable to him for their support, nor he to them for their services. En. March 21, 1872. Cal. Rep. Cit. 74, 321; 124, 70; 125, 70. § 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. En. March 21, 1872. §§ 211-215 CHILDREN BY BIRTH. «* § 211. Parent may relinquish services and custody of child. The parent, whether solvent or insolvent, may re- linquish to the child the right of controlling him and re- ceiving his earnings. Abandonment by the parent is pre- sumptive evidence of such relinquishment. En. March 21, 1872. Cal. Rep. Cit. 116, 151. § 212. Wages of minors. The wages of a minor em- ployed in service may be paid to him until the parent or guardian enutled thereto gives the employer notice that he claims such wages. En. March 21, 1872. Am'd. 1873-4, 194. § 213- Right of parent to determine the residence 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. En. March 21, 1872. Residence, husband's right to change: See ante, sec. 156. § 214. Wife In certain cases may obtain custody of mi- nor children. When a husband and wife live in a state ol separation, without being divorced, any court of competent jurisdiction, upon application of either, if an inhabitant of this state, may inquire into the custody or 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 246. En. March 21, 1872. See act of March 7, 1874, relative to orphans and aban- doned children: Stats. 1873-4, p. 297. Am'd. 1877-8, p. 82. Custody of child without divorce of parents: See ante, sec. 199. Custody of child pending divorce proceedings: See sec. 188. § 215. Child legitimized by marriage of parents. A child bom before wedlock becomes legitimate by the subse- quent marriage of its parents. En. Stats. 1873-4, 196. Cal. Rep. Cit. 57, 491; 96, 563; 96, 570; 96, 572. «• Ut>0P*riON. {{ 221-224 CHAPTER IL ADOPTION. 9 221. Child may be adopted. I 222. Who may adopt. § 223. Consent of wife necessary. § 224. Consent of child's parents. Childrea is orphan a«yluma. § 22.5. Consent of child. § 226. Proceedings on adoption. § 227. Judge's order; where filed. I 228. Effect of adoption. I 229. Effect on former relations of child. § 230. Adoption of Illegitimate child. § 221. Child may be adopted. Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter. En. March 21, 1872. Cal. Rep. Cit. 75, 381; 81, 441; 81, 446; 102, 79. § 222. Who may adopt. The person adopting a child must be at least ten years older than the person adopted. En. March 21, 1872. Am'd. 1873-4, 195. Cal. Rep. Cit. 98, 537. § 223. Consent of wife necessary. 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. En. March 21, 1872. Am'd. 1873-4, 195. Cal. Rep. Cit. 98, 53' ; 102, 79. § 224. Consent of child's parents. Children In orphar asylums. A legitimate child cannot be adopted withoui §224 the consent of its parents, if living; nor an illegitimate Am'd. child without the consent of its mother, if living; except q, 400 that consent is not necessary from a father or mother de- prived of civil rights, or adjudged guilty of adultery or cruelty, and for either cause divorced, or adjudged to be habitually intemperate in the use of intoxicants, or who has been judicially deprived of the custody of the child on account of cruelty or neglect; neither is the consent of anyone necessary in the case of any abandoned child; provided, however, that any such child, being a half or- phan, and kept and maintained in any orphan asylum In Civil Cod^--6 §§ 225-227 ADOPTION. 66 this state for more than two years, may be adopted wltn the consent of the manager of such orphan's home with- out 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. Any child deserted by both parents, or left in the care and custody of another by its parent or parents, without any agreement or provision for its support, 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 nonresident of this state such child, may without the consent of either parent be adopted with the consent of the managers of such home whenever it has been left in Buch home for more than one year. En. March 21, 1872. Am'd. 1891, 24; 1893, 112; 1895, 39; 1903, 114. Cal. Rep. Cit. 57, 491; 98, 537; 102, 81; 106, 379; 106, 381. § 225. Consent of child. The consent of a child, if ovei the age of twelve years, is necessary to its adoption. EJn. March 21, 1872. Cal. Rep. Cit. 98, 537. § 226. Proceedings on adoption. Any person desiring to oppc adopt a child may, for that purpose, petition the superior A »H court of the county in which the petitioner resides. The '^'^. "person adopting a child, and the child adopted, and the /, * I other persons, if within or residents of this state, whose ^^ consent is necessary, must appear before the court, and the necessary consent must thereupon be signed and an agree- ment 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 this state, then their written consent, duly proved or acknowledged, according to sections eleven hundred and eighty-two and eleven hundred and eighty-three, must be filed in said superior court at the time of the application for adoption. En. March 21, 1872. Am'd. 1875-6, 69; 1880, 4; 1905, 555. The first two sentences of this section have been recast with the design of making' the proceeding for avloptlon judicial, thereby supporting It by the same Intendments which are Indulged In favor of other pro- ceedings conducted In courts of record.— Code Commissioner's Note. § 227. Judge's order; where filed. The court must ex- amine all persons appearing before it pursuant to the last seciion, each separately, and if satisfied that the interests of the child will be promoted by the adoption, it must make «7 ADOPTION. §§ 228-230 an order declaring that the child shall thenceforth be re- garded and treated in all respects as the child of the person adopting. The petition, agreement, consent, and order must be filed and registered in the office of the county clerk in the same manner as papers in other special proceedings. En. March 21, 1872. Am'd. 1905, 556. rhe change consists in the substitution of the word **court*' for tbe word "judge," and In the addition of the last sentence, said sen- tence being added for the purpose of making it clear that the papers constituting part of the adoption or of the procjeeding therefor, must be filed and preserved by the clerk. — Code Commis.sioner's Note. Cal. Rep. Cit. 57, 491; 75, 218; 75, 219; 98, 536; 98, 5^; 98, 538; 98, 547; 102, 77; 102, 80; 106, 565; 106, 566; 131, 470; 140, 469; 141, 406. § 228. Effect of adoption. A child, when adopted, may take the family name of the person adopting. After adop- tion, 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. En. March 21, X873. Am'd. 1873-4, 195. Cal. Rep. Cit. 57. 491; 75, 219; 106, 379; 131, 182; 140, 469. § 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 responsi- bility for, the child so adopted, and have no right over it. En. March 21, 1872. Cal. Rep. Cit. 106, 379. § 230. Adoption of illegitimate child. The father of an Illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The for-^going provisions ol this chapter do not apply to such an adoption. En. March 21, 1872. Cal. Rep. Cit 52, 86; 52, 87; 56, 419; 57, 491; 75, 381; 75, 382; 81, 421; 81, 441; 81, 442; 81, 444; 81, 445; 81. 446; 81, 447; 81, 457; 96, 557; 96, 558; 96, 559; 96, 560; 96, 572; 96, 573; 96, 576; 96, 582; 96, 591; 96, 592; 96, 594; 96, 595; 102, 262; 127, 434; 135, 386; 135, 388; 136, 395; 136, 396; 137, 299; 137, 300; 142, 160; 142, 168; 142, 169; 142, 170; 142, 171; 142, 172. §§ 236-241 GUARDIAN AND WARD. 6? TITLE III. GUARDIAN AND WARD. § 236. Guardian, what. § 237. Ward, what. § 238. Kinds of guardians. § 239. General guardian, what. § 240. Special guardian, what. § 241. Appointment by parent. § 242. No person guardlaa of estate withont appointment. § 243. Appointment by court. § 244. Same. § 245. Jurisdiction. § 246. Rules for awarding custody of minor. § 247. Powers of guardian appointed by court. § 248. Duties of guardian of the person. § 249. Duties of guardian of estate. § 250. Relation confidential. § 251, Guardian under direction of court. § 252. Death of a joint guardian. § 253. Removal of guardiaa. § 254. Guardian appointed by parent, how superseded. § 255. Suspeasion of power of guardian. § 256. Release by ward. § 257. Guardian's discharge. § 258. Insane persons. § 236. Guardian, what. A guardian Is a person ap- pointed to take care of the person or property of another. En. March 21, 1872. Cal. Rep. Cit. 117, 664. § 237, Ward, what. The person over whom or over whose property a guardian is appointed, is called his ward. En. March 21, 1872. § 238. Kinds of guardians. Guardians are either: 1. General; or, 2. Special. En. March 21, 1872. Testamentary guardians: See sec. 241. Guardians ad litem: See Code Civ. Proc, sees. 372, 373. § 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 hoth. En. March 21, 1872. § 240. Special guardian, what. Every other is a special guardian. En. March 21, 1872. § 241. Appointment by parent. A guardian of the per- son or estate, or of both, of a child born, or likely to be bom, may be appointed by will or by deed, to take effect upon the death of the parent appointing: g9 GUARDIAM AND WARD. §§ 242-246 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 child be illegitimate, by the mother. En. March :21, 1872. Am'd. 1873-4, 195. Cal. Rep. Cit. 84, 596; 84, 597; 109, 646; 109, 647; 128, 218; 130, 383. Bond of testamentary guardian: Code Civ. Proc., sec. 1758. § 242. No person guardian of estate without appoint- ment. En. March 21, 1872. Rep. 1905, 728. The provisions of the above sections, relating to gruardlan amd ward* are controlled by sections 1747, 1758, and 1793 of the Code of Civil Pro- cedure. They are, therefore, vinnecessary and misleading.— Code Com- missioner's Note. § 243. Appointment by court. En. March 21, 1872. Am'd. 1873-4, 196; 1880, 4. Rep. 1905, 728. See note to § 242, ante. Cal. Rep. Cit. 84, 596; 109, 646; 109, 647; 109, 649; 128, 218; 130, 383. Judicial appointment of guardian of minor: See Code Civ. Proc., sec. 1747. Judicial appointment of ^ardian of insane or incom- petent persons: See Code Ciy. Proc., sec. 1763. Act providing for appointment of guardian of orphans: See post, Appendix, title Infancy. § 244. Same. En. March 21, 1872. Am'd. 1880, 4. Rep. 1905, 728. See note to § 242, ante. Nonresident wards, appointment of guardian: See Cod© Civ. Proc, sees. 1793 et seq. § 245. Jurisdiction. En. March 21, 1872. Rep. 1905, 728. See note to § 242, ante. Control over guardian: See Code C^. Proc, sec. 1771. § 246. Rules for awarding custody of minor. In award- ing the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the follow- ing 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 prefer- ence in determining the question; § 247 GUARDIAN 4.ND WARD. 70 2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right; but other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to re- quire 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 de- ceased 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 knowingly or willfully abandons, or having the ability so to do, fails to maintain his minor child under the age of fourteen years, forfeits the guardian- ship of such chiM; and any parent or guardian who 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, during such period, fails to give notice in writing to the managers or oflacers of such asylum that he is such parent or guardian, abandons and forever forfeits all right to the guardianship, care, custody, 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. En. March 21, 1872. Am'd. 1873-4, 196; 1905, 728. The change consists in the addition of subdivision 4, which Is a codifi- cation of the statute of 1873-4, page 297, relating to the care of orphaa and abandoned children. The penal provisions of that act are, how- ever, omitted as they do not properly find a place in this Code. — Code Commissioner's Note. CaL Rep. Cit 142, 240. Subd. 1—130, 381. Subd. 3— 109, G61. Custody of children generally, pending divorce: Sec sec. 138; without dlTorce: See sees. 199, 214. Custody of child where parents separated: See ante, sec. 214. § 247. Pawers of guardian appointed by court. En. March 21, 1872. Rep, 1905, 729. The subject matter of this section is provided for in section 1753 of ttk^ Code ot Civil Procedure.— Code ConMnlsskmer'B Note. Supp. Cal. Rep. Cit 143, 403. Gal. Rep. Cit. 117, 644. Proi)erty of ward, control over: See sec. 242. "n GtJARDlAN AND WARD. §§ 248-253 § 248. Duties of guardian of the person. En. March 21, 1872. Rep. 1905, 729. The provisions of these sections are included in sections 1753 and 1770 «f the Co-de of Civil Procedure.— Code Commissioner's Note. Cal. Rep. Cit. 123, 218; 128, 218; 142, 426; 143, 403. Compare sec. 251. § 249. Duties of guardian of estate. En. March 21, 1872. Am'd. 1873-4, 197; 1880, 5. Rep. 1905, 729. See note to § 248, ante. Cal. Rep. Cit 117, 644; 121, 472; 124, 157; 134, 116. Sale of ward's estate: See Code Civ. Proc., sees. 1777 et sea. Ghiardian using principal as well as income: See Code CiY. Proc, sec. 1770. § 250. Relation confidential. The relation of guardian an-d ward is confidential, and is subject to the provisions of the title on Trust. En. March 21, 1872. Cal. Rep. Cit. 116, 391. Trusts: See post, sees. 2215 et seq. § 251. Guardian under direction of court. In the man- agement and disposition of the person or property com- mitted to him, a guardian may be regulated and controlled by the court. En. March 21, 1872. Residence of ward: See sec. 248, ante. § 252. Death of a joint guardian. On the death of one of two or more joint guardians, the i)ower continues to the survivor until a further appointment is made by the court. En. March 21, 1872. Survival of trust: See sec. 2288, post. § 253. Removal of guardian. A guardian may be re- moved by the superior court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform its duties; 3. For incapacity to perform its duties; 4. For gross immorality; 5. For having an interest adverse to the faithful per- formance of his duties; 6. For removal from the state; 7. In the case of a guardian of the property, for in- solvency; or, 8. When it is no longer proper that the ward should be under guardianship. En. March 21, 1872. Am'd. 1S80, 5§ 254-258 GUARDIAN AND WaJID. tt Cal. Rep. Cit. Snbd. 8—143, 409. Removal of guardian: See Code Civ. Proc, sec. 180L § 254. Guardian appointed by parent, how superseded. The power of a guardian appointed by a parent is super- seded: 1. By his removal, as provided by section 253; 2. By the solemnized marriage of the ward; or, 3. By the ward's attaining majority. En. March 21, 1872. Cal. Rep. Cit. Subd. 3—121, 474. Marriage of ward terminates guardianship: Code Civ. Proc, sec. 1802. § 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. En. March 21, 1872. Am'-d. 1873-4, 197. Cal. Rep. Cit. Suboration hereafter formed accept or execute any trust unless it shall have complied with all the pro- visions 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 corpor- atioh,^ approved April 6th, 1891, and the amendment there- to approved, April Ist, 1897. En. Stats. 1905, 251. **Aii act authorizing certain corporations to act as exec- utor/' etc: See Appendix, f. 702. 3 FORMATION OF COR^OftAtloKS. §§ m-»i § 291. Certain corporations to state further facts in ar- f tides. 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 con- structed; 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 sub- scribed has been paid in to the treasurer of the intended corporation. En. March 21, 1872. Cal. Rep. Cit. 142, 227. § 292. Articles subscribed and acknowledged. The arti- cles 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 au- thorized to take and -certify acknowledgments or convey- ances of real property. En. March 21, 1872. Am'd. 1873-4, 199; 1905, 503. Cal. Rep. Cit. 80, 353; 97, 278; 97, 280; 128, 260; 128, 261; 128, 263; 130, 39. § 293. Prerequisite to filing articles. Amounts to be subscribed to be fixed. Each intended corporation named in section 291, before filing articles of incorporation, must have actually subscribed to its capital stock, for each mile of the contemplated work, the 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. En. March 21, 1872. Cal. Rep. Cit. 53, 128. § 294. Prerequisite ^o filing articles of corporations for profit. Before the articles of incorporation of any corpora- tion referred to in the preceding section are filed, there must be paid for the benefit of the corporation, to a treas- urer elected by the subscribers, ten per cent of the amount subscribed. En. March 21, 1872. § 295. Oath of officer to subscription of stock and pay- ment of ten per cent. Before the secretary of state issues to any sucu corporation a certificate of the filing of arti- cles 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. En. March 21, 1872. Signing fictitious name: Pen. Code, sec. 557, §§ 296-299 FORMATION OF CORPORATIONS. «4 § 296. To file articles with county clerk and secretary of state, and receive certificate. Term of existence. Upon filing the articles of incorporation in the omce of the county clerk of the county in which the principal business of the company is to be transacted, and a copy thereof certified by the county clerk with the secretary of state, and the affidavit mentioned in the last section where such afli davit is required, the secretary of state must issue to the corporation, over the great seal of the state, a certifi- cate that a copy of the articles containing the required statement of facts has been filed in his office, and there- upon tiie persons signing the articles and their associates and csiic'^'^-^'^ors shall be a body pondc and corporate by the name stated in the certificate, and for the term of fifty years, nnlp??'' ft is, in the articles of incorporation, other- wise irtated, or in this code otherwise specially provided; provided, however, that the secretary of state shall not file any copy of the copy of any articles, or issue any cer- tificate of incorporation to any corporation, which arti- cles set forth the corporate name of any corporation here- tofore organized in this state, or file any copy of any ar- ticles, or issue any certificate of incorporation to any cor- poration existing at the time of filing said articles, which articles set forth a name so closely resembling tne name of such corporation as will tend to deceive. En. March a, 1872. Am'd. 1873-4, 199; 1900-Cl, 629. Cal. Rep. Cit. 72, 382; 93, 39; 102, 62; 111, 135; 128, 262; 130, 38; 142, 281; 146, 222. § 297. Copy of articles prima facie evidence. A copy of ^297ainy articles of incorporation filed in pursuance of this F act.'^^P^^^' ^^^ certified by the secretary of state, or by the ,.- !jounty 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 cuerein stated. En. iviarch 21, 1872. Am'd. 1873-4, 200; 1893, bJ. Cal. »iep. Cit. 67, 488; 72, 382. § 298. Who are members and who stockholders of a corporation. The owners of shares in a corporation which has a capital stock are called stocknolders. If a corpora- tion has no capital stock, the corporators and their suc- cessors are called members. En. March 21, 1872. Cal. Rep. Cit. 109, 588; 115, 593. § 299. Filing articles of incorporation. No corporation hereafter formed must purchase, locate, or hoid property. i FORMATION OF CX>RPC«LA.TIONS. ( 299 in any county in this state, other than the county in which its original articles of incorporation are filed, without fil- ing a copy of the copy of its articles of incorporation filed in the oflice of the secretary of state, duly certified by such secretary 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 Dy me general law anu luis stjctiuu; yiuviucu, mat an corporations are liable in damages for any and all loss that may arise by the failure of such corporation to per- form any of the foregoing duties within the time men- tioned in this section; and provided further, that the said damages may be recovered in an action brought in any court of this state of competent jurisdiction, by any party or parties suffering the same. En. March 21, 1872. Rep. 1873-4, 200. En. Stats. 1875-6, 71. Am'd. 1877-8, 76; 1880, 13; 1905, 556. The change consists in the insertion of the words "other than the county in which Its original articles of incorporation are filed" after "state." — Code Commissioner's Note. Cal. Rep. Cit 67, 487; 73, 601; 73, 602; 77, 'iZ; 80, 69; 80, 71; 80, 335; 80, 336; 83, 17; 97, 274; 108, \H); 108. 91; 111, 135; 111, 137; 111, 138; 120, 178; 120, lid; 120, 180; 120, 181; 146, 649; 146, 651; 146, 652; 147, 753. Bi^t to purchase estate: See post, sec. 354, §§ 296-299 FORMATION OF CORPORATIONS. S4 § 296. To file articles with county clerk and secretary of state, and receive certificate. Term of existence. Upon filing the articles of incorporation in the omce of the county clerk of the county in which the principal business of the company is to be transacted, and a copy thereof certified by the county clerk with the secretary of state, and the affidavit mentioned in the last section where such afiidavit is required, the secretary of state must issue to the corporation, over the great seal of the state, a certifi- cate that a copy of the articles containing the required C. C, 1906, new. § 297a. Whenever the articles of incorporation of any corporation have been, or may hereafter be, destroyed by conflagration or other public calamity, a copy of the cer- tified copy of the articles of incorporation of such corpo- ration filed in the office of the secretary of state pur- suant to the provisions of section two hundred and 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 ef- fect as the document so lost or destroyed. [In effect June 18, 1906.] § 297. Copy of articles prima facie evidence. A copy of 8297a^^y articles of incorporation filed in pursuance of this Enact.'^^P^^^' 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 .Herein stated. En. March 21, 1872. Am'd. 1873-4 200; 1895, o). Cal. ^ep. Cit. 67, 488; 72, 382. § 298. Who are members and who stockholders of a corporation. The owners of shares in a corporation which has a capital stock are called stocknolders. If a corpora- tion has no capital stock, the corporators and their suc- cessors are called members. En. March 21, 1872. Cal. Rep. Cit. 109, 588; 115, 593. § 299. Filin^j articles of incorporation. No corporation hereafter formed must purchase, locate, or hoid property. Sa i!*0RMATION OF CORPORATIONS. $ 299 in any cbuiity in this state, other than the county in which its original articles of incorporation are filed, without fil- ing a copy of the copy of its articles of incorporation filed in the ofiice of the secretary of state, duly certified by such secretary of state, in the oflBce 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 incorpora- tion. The copies filed with tne several county clerks, and certified copies thereof, have the same force and effect in evidence as the originals. Any corporation failing to comply with the provisions of this section cannot main- tain or defend any action or proceeding in relation to such property, its rents, issues, or profits, until such articles of incorpor?i+^'on, 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 corporations are liable in damages for any and all loss that may arise by the failure of such corporation to per- form any of the foregoing duties within the time men- tioned in this section; and provided further, that the said damages may be recovered in an action brought in any court of this state of competent jurisdiction, by any party 'Or parties suffering the same. En. March 21, 1872. Rep. 1873-4, 200. En. Stats. 1875-6, 71. Am'd. 1877-8, 76; 1880, 13; 1905, 556. The change consists in the insertion of the words "other than the county in which its original articles of incorporation are filed" after "state." — Code Commissioner's Note. Cal. Rep. Cit 67, 487; 73, 601; 73, 602; 77, 'i2; 80, 69; 80, 71; 80, 335; 80, 336; 83, 17; 97, 274; 108, yu; 108, 91; 111, 135; 111, 137; 111, 138; 120, 178; 120, 1^9; 120, 180; 120, 181; 146, 649; 146, 651; 146, 652; 147, 753. Ei^t to purchase estate: See post, sec. S54, § $00 POtlMAnON OJi* CX)RPORATlONg. K § 300. Banking corporations may elect to have capital stock. 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 I, article I, 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 vote in favor of having a capital stock, fix the amount thereof, and the number of shares into which it shall be divided. Notice of the time and place of hold- ing such meeting and its object must be given by the president of such corporation by publication in some news- paper 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 number of i)ersons present, ■ the votes taken, the notice calling the meeting, the proof of its publication, the amount of capital actually subscribed, and by whom, all duly certified by the president and secretary of the cor- poration, must be filed in the offices of the secretary of state and clerk of the county where the articles of incor- poration are filed. Thereafter such corporation is pos- sessed 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 di- rectors consenting to the same jointly and severally liable to the depositors, to the extent thereof. En. Stats. 1877-8, 77. CaL Rep. Cit. 66, 349; 74, 600; 74, 602. L 87 FORMATION OF CORPORATIONS. §§ 300a, »1 § 300a. Change of name; filing copy of decree. Every corporation which has changed its name under the pro- visions of sections 1275, 1276, 1277, 1278 and 1279, of the Qode of Civil Procedure, must file in the ofiice of the secre- tary of state a certified copy of the decree of the court, dianging such name. En. Stats. 1903, 256. ARTICLE II. BY-LAWS, DIRECTORS, ELECTIONS, AND MEETINGS. § 301. AdoptkKi of by-laws, when, how, and by wbom. § 302. Election of d^ectors; notice of. § 303. By-laws may provide for what. § 304. By-laws to be copied and open to pablic inspection. Amend- ment of. § 305. Powers of directors of corporations. I 306. Directors must be elected and by-laws adopted at first meeting. (Repealed.) S 307. Elections, how conducted. § 308. Org-anization of board of directors, etc. § 309. Dividends to be ma-de from surplus profits. Increase and reduc- tion of capital stock. § 310. Removal of directors. § 311. Justice of the peace may order meeting when. I 212. Majority of capital stock must be represented at elections. S 312. Corporations; election in, majority of stock must be repre- sented; election set aside, when and by whom. § 313. stock, how represented. § 314. Election may be postponed. § 315. New^ election may be ordered by the court. § 31i. False certificate, report, or notice to make oflBcers llabte. § 317, Meeting by consent to be valid. § 318. Proceedings at meeting to be binding. § 319. Meetings, where held. § 320. Special meetings, how called. § 321. Certain books to be open for inspectiosi. § 321a. Corporation may change its principal place of business. § 321b. Stockholders' meetings, who may vote at, proxies. i 301. Adoption of by-laws, when, how, and by whom. E^very 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 stockholders 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 meeting called for that purpose; and in the event of such meeting being called, two weeks' notice of the same by advertisement in some newspaper pub- lished in the county in which the principal place of busi- ness 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 writ- ten assent of the holders of two-thirds of the stock, or of two-thirds of the members, if there be no capital stock. §§ 302, 303 FORMATION OF CORPORATIONS. 8S shall be effectual to adopt a code of by-laws without a meeting for that purpose. En. March 21, 1872. Am'd. 1873-4, 200. Cal. Rep. Cit. 74, 574; 109, 588; 116, 414; IIG, 415; 117, 16^; 145, 702. Repeal and amendment of by-laws: Post, sec. 304. § 302. Election of directors; notice of. The direc- tors of a corporation m-ust 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 and one. En. March 21, 1872. Am'd. 1905, 557. The change consists in the omission of the words "and the right to vote determined" after "given." The right to vote in controlled by- section 307.— Code Commissioner's Note. Cal. Rep. Cit 93, 36; 146, 222. Postponing election: Post, sec. 314. § 303. By-laws may provide for what. A corporation may, by its by-laws, where no other provision is specially made, provide for: 1. The time, place and manner of calling and conduct- ing its meetings, and may dispense with notice of all regu- lar 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 man- ner of giving notice thereof. 5. The compensation and duties of officers. 6. The manner of election and tenure of office of all offi- cers other than the directors; and 7. Suitable penalties for violations of by-laws, not ex- ceeding, 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 news- paper 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 pre- scribe the newspaper in which said publication shall be made, if from any cause, at the time any publication is desired to be made, the publication of such newspaper shall have ceased, the board of directors may, by an M ti*6RMATlON OF CORPORATIOKS. { 8M order entered on the records of the corporation, direct tbe publication to be made in some other newspaper published in the county, or if none is published therein, then in an adjoining county. En. March 21, 1872. Am'd. 1873-4, 201; lS8d 365 Cal. Rep. Cit. 93, 38; 93, 39; 96, 82; 104, 653; 109, 599. Subd. 1—130, 347. Subd. 4—121, 208. Subd. 5—121,208. By-laws of: Post, sees. 2^, 30S, 323, 344, 599. § 304. By-laws to be copied and open to public inspec- tion. Amendment of. All by-laws adopted must be certi- fied by a majority of the directors and secretary of the cor- poration, and copied in a legible hand, in some book kept in the oflace of the corporation, to be known as the "book of by- laws,*' and 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, at the annual meeting, or at any other meeting of the stockholders or members, called for that pur- pose by the directors, by a vote repr^enting two-thirds of the subscribed stock, 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 by-laws. The power to repeal and amend the by- laws, and adopt new by-laws, may, by a similar vote at any such meeting, or similar written assent, be delegated to the board of directors. The power, when delegated, may be re- voked 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 hereinbefore 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. En. March 21, 1872. Am'd. 1873-4, 201; 1885, 130; 1905, 557. Cal. Rep. Cit. 89, 54. The provisions of the present section, dedartng that no by-law or any amendment thereof shall takg effect until copied in the book of by- laws, is amended so as to permit by-laws and amendments thereof, which have been duly passed, to be treated as valid and enforceable against the corporation and persons having notice thereof, regardless of whether or not they have been copied into the proper book. It has often happened that by-laws have been published and generally acted ixpcm by the corporation, and by others, and then their effect §§ 305, 307 t'ORMATlON OF CORPORATIONS. W has been sought to be avorded on account of the failure of the proper officer to perform his duty of copying them as the Code directs. The changed consists in the addition of the last sentence.— Code CommlB- sioner's Note. § 305. Powers of directors of corporations. The cor- porate 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 corpora- tions; except that corporations formed or to be formed for the purpose of erecting and managing halls and buildings for the meetings and accommodation of several lodges or societies of any benevolent or charitable order or organiza- tion, and in connection therewith, the leasing of stores and offices in such building or buildings for other purposes, the corporate powers, business, and property thereof may be conducted, exercised, and controlled by a board not less than three or more than fifty directors, to be chosen from among the stockholders 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 cor- poration. Directors of all other corporations must be mem- bers thereof. Unless a quorum is present and acting no business performed or act done is valid as against the cor- poration. Whenever a vacancy occurs in the office of di- rector, unless the by-laws of the corporation otherwise pro- vide, such vacancy must be filled by an appointee of the board. En. March 21, 1872. Am'd. 1875-6, 71; 1900-01, 308; 1905, 503. Cal. Rep. Cit. 78, 632; 81, 234; 93, 36; 93, 39; 94, 543; 111, 116; 118, 138; 121, 208; 126, 417; 127, 267; 127, 269; 130, 349; 130, 351; 132, 652; 146, 222. § 306. Directors must be elected and by-laws adopted at first meeting. (Repealed.) En. March 21, 1872. Am'd. 1873-4, 202. Rep. 1889, 365. § 307. Elections, how conducted. All elections 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 di- rectors multiplied by the number of his shares of stock II FORMATION OF CORPORATIONS, §§ 308, 309 shall equal, or to distribute them on the same principle among as many candidates as he shall think fit. The provisions of this section, 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 directors by a meet- ing of stockholders held in this state, whether such cor- porations or associations are organized under the laws of this state or not and no election for directors of any cor- poration 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. 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. En. March 21, 1872. Am'd. 1873-4, 202; 1877-8, 78; 1887, 95; 1903, 258. Cal. Rep. Cit. 93, 36; 103, 363; 109, 589; 109, 597; 115, 590; 115, 609; 127, 683. § 308. Organization of board of directors, etc. Imme- diately 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. A majority of the directors is a sufficient number 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. En. March 21, 1872. Cal. Rep. Cit. 78, 292; 78, 632; 93, 38; 93, 39; 94, 549; 96, 82; 103, 363; 121, 308; 127, 267; 130, 348; 130, 349; 131, 659; 145, 364. S 309. Dividends to be made from surplus profits. In- crease and reduction of capital stoctc. The directors of cor- porations must not make dividends, except from the sur- plus profits arising from the business thereof; nor must they create any debts beyond their subscribed capital stock; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock, t 300 FORMATION OF CORPORATIONS. H except as hereinafter provided, nor reduce or Increase the capital stock, except as herein specially provided. For a violation of the provisions of this section, tne directors under whose administration the same may have happened (except those who may have caused their dissent there- from to be entered at large on the minutes of the directors at the time, or were not present when the same did hap- pen) are, in their individual or private capacity, jointly and severally liable to the corporation, and to the credit- ors thereof, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt con- tracted; and no statute of limitation is a bar to any suit against such directors for any sums for which they are liable by this section; provided, however, that where a corporation has been heretofore or may hereafter be formed for the purpose, among other things, of acquiring, holding, and selling real estate, water, and water rights, the directors of such corporation may, with tne consent of stockholders 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 cor- poration in pursuance of this section must be made and re- ceived 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 expiration of Its term of existence. Bn. March 21, 1872. Am'd. 1891, 468; 1905, 558. The change consists In th« omission of the words, "nor must they di- vide, withdraw, or pay to the stockholders, or any of them, any part Of the capital stock," where those words first occur, and In the omis- sion of the words "In the event of Its dissolution," after "thereof." The reason for the omission of the words first above alluded to Is that by some clerical error they occur twice In the section. The words ''Mn the event of Its dissolution" are omitted because their presence makes it impossllale to enforce the liability against the di- rectors unless the corporation is first dissolved, which couM not have been the Intention of tht= legislature.— Code Commissioner's Note. Cal. Rep. Cit. 57, 602; 81, 384; 81, 387; 81, 389; 81, 390; 81, 396; 81, 397; 90, 135; 90, 136; 90, 139; 90, 140; 90, 141; 90, 142; 93, 309; 93, 310; 93, 311; 109, 596; 116, 415; 124, 149; 125, 412; 127, 674; 135, 482. Increasing and diminishing capital stock: See post, sec. 859. Penalties: See Pen. Code, sees. 560, 563, 564, 569. 570. Actions against directors: See Code Civ. Proc, sec. 359, 93 FORMATION OF CORPORATIONS. §§ 310, 311 § 310. Removal of directors. The board of directors may- be removed from office by a vote of two-thirds of the mem- bers, or of stockholders holding two-thirds of the capital stock, at a general meeting held after previous notice of the time and place, and of the intention to propose such re- moval. Meetin-gs of stockholders for this purpose may be called by the president, or by a majority of the director'^, or by members or stockholders hoMing at least one-half of the votes. Such calls must be in writing, and ad- dressed to the secretary, who must thereupon give notice of the time, place, and object of the meetin-g, and by whose order it is called. If the secretary refuses to give the no- tice, or if there is none, the call may be addressed directly to the members or stockholders, and be served as a no-> tice, in which case it must specify the time and place of meeting. The notice must be given in the manner pro- vided 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. En. March 21, 1872. Am'd. 1905, 558. The amendment, while it authorizes the removal of the whole board of directors by a two-thirds vote of t-he members or stockholders, -denies the power to remove less than the whole number by such vote. The rea,son for this is that by the system of cumulative voting sanctioned by section 307, a minority may obtain representation In the board of directors; if so, a director elected to represent a minority of one- third oug-ht not to be removed by the subsequent vote of the other two-thirds, and the system of cumulative voting and minority repre- Bentation thus made ineffective. The first sentence ocUy Is chang-ed,— Cade Commissioner's Note. Cal. Rep. Cit. 97, 630. Act to protect stockholders and persons dealing with corporations from misrepresentations of officers; See post, Appendix, title Corporations. § 311. Justice of the peace may order meeting 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 stockhoMers or of the members thereof, issue a war- rant to one of the stockholders or members, directing 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 majority of the capital stock, has the same effect as an ap- § S12 FORMATION OF CORPORATIONS. 9i plication by three or more stockholders or meniDers. En. March 21, 1872. Am'd. 1905, 559. By the amendment proposed the holders of a majority of the stock, though their number is less than three, are authorized to apply to the justice to issue a warrant for an election. The change consists in the addition of the last sentence. — Code Commissioner's Note. p.^oo § 312. Majority of capital stock must be represented at elections. At all elections or votes had for any purpose §312 there must be a majority of the subscribed capital stock, or Am'd. of the members, represented, either in person or by proxy p An'\ in writing. 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 ac- cordance 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. 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 mem- bers, or no election had — such adjournment and the reasons therefor being recorded in the journal of proceed- ings of the board of directors. En. March 21, 1872. Am'd. 1877-8, 79; 1905, 559. The change consists in the substitution of the words "superior court" in place of "district court," and in the omission of the words "bona flde" before "stockholder." For the purposes of election, a person ap- pearing upon the books of the corporation to be a stockholder should be permitted to vote, and election officers should not be vested with authority to deny such a stockholder the right to vote, or to claim that for some reason he is not a bona fide stockholder. (See Smith v. S. F. & N. P. Ry. Co., 115 Cal. 584.)— Code Commissioner's Note. This amendment was approved March 21, 1905, and the following amendment of the same section was approved March 22, 1905: § 312. Corporations; election In, majority of stock must be represented; election set aside, when and by whom. At all elections or votes had for any purpose in corporations formed for profit there must be a majority of the sub- scribed capital stock or of the members represented, either in person or by proxy in ^vriting; provided, that in all in- stances 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 bona fide stockholder, having stock in his own name on the stock-books of a corporation at least ten 96 FORMATION OP CORPORATIONS. §§ 313-315 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 re^lar or called meeting of the stockholders or mem- bers 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 ad- journment and the reasons therefor being recorded in the journal of proceedings of the board of directors. En. March 21, 1872. Am'd. 1877-8, 79; 1905, 787. This amendment was approved March 22, 1905, the preceding amend- ment of the same section being approved March 21, 1905. Gal. Rep. Cit. 67, 533; 93, 36; 93, 39; 103, 363; 104, 652; 109, 588; 109, 589; 109, 599; 112, 63; 115, 589; 115, 590; 115, 594; 115, 609; 127, 683; 133, 47; 146, 224. Notice of meeting: See ante, sec. 302. § 313. Stock, how represented. The shares of stock of an estate of a minor, or insane person, may be repre- sented by his guardian, and of a deceased person by his executor or administrator. En. March 21, 1872. Am*d. 1873-4, 203. Cal. Rep. Cit. 109, 590; 115, 590. § 314. Election may 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 day thereafter as is provided lor 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 ap- pointed time, and no adjourned or other meeting for the purpose has been ordered by the directors, a meeting njay be called by the stockholders as provided in section three hundred and ten. En. March 21, 1872. Am'd. 1905, 559. The design of the amendment is to extend the provisions of the section to all elections howsoever authorized, and for this purpose the words "by law" are Insertefd after "appointed," "in" is omitted after "ap- pointed," and "or otherwise" are inserted after "by-laws."— Code Commissioner's Note. § 315. New election may be ordered by the court. 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 §§ 316-319 FORMATION OF CORPORATIONS. 96 parties, or otherwise inquire into the matters of complaint, and thereupon confirm the election, order a new one, or direct such other relief in the premises as accords with right and justice. 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. En. March 21, 1872. Am'd. 1877-8, 79, 1905, 560. The change consists in the substitution of the words "superior court ot the countjr" for "district court of the district."— Code Commissioner's Note. Cal. Rep. Cit 93, 35; 93, 36; 93, 39; 93, 42; 98, 305; 103, 364; 115, 281; 115, 587; 115, 594; 115, 609; 126, 72. § 316. False certificate, report, or notice* to make officers liable. Any oflacer of a corporation who willfully gives a certificate, or willfully makes an official report, public notice, or entry in any of the records or books of the cor- poration, concerning the corporation or its business, which is false in any material representation, shall be liable for all the damages resulting therefrom to any per- son injured thereby, and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and severally liable. En. March 21, 1872. Am'd. 1873-4, 203. Liability of officer: Pen. Code, sees. 558, 564. § 317. Meeting by consent to be valid. When all the stockholders or members of a corporation are present at any meeting, however called or notified, and sign a writ- ten consent thereto on the record of such meeting, the doings of such meeting are as valid as if had at a meeting legally called and noticed. ' En. March 21, 1872. § 318. Proceedings at meeting to be binding. The stock- holders 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 transacted at regular meetings of the corporation. En. March 21, 1872. § 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. En. March 21, 1872. Changing place of business: See sec. 321, ^ FORMATION OF CORPORATIOKS. §§ 820-32lai f 320. Special meetings, how called. Wlien no provi-* sion is made in the by-laws for r^nlar meetings of the* directors and tlie mode of calling special meetings, alii meetings must be called by special notice in writing, id be given to each director by the secretary, on the order? of the president, or if there be none, on the order of twoi directors. En. March 21, 1872. Cal. Rep. Git 59, 681; 59, 6S2; 76, 154; 96, 79; 96, 82;; 109, 9; 109, 10; 130, 347; 134, 177; 146, 705. § 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 stockholders,) 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 con-» spicuous place, accessible to the public generally, a notice. signed by the president or secretary, showing: First, The? names of the directors of such corporation. Second, The» number and value of shares of stock held by each director.) The entries on such book, and such notice, shall be made and posted within twenty-four hours after any transfer o^ stock, and shall be conclusive evidence against each di-» rector and stockholder of the number of shares of stock; held by each. The provisions of this section shall apply to all banking corporations, formed or existing before twelvei o'clock, noon, of the day on which this code took effect,^ as well as to those formed after such time. En. Stats^ 1875-6, 72. Cal. Rep. Cit. 89, 54; 140, 105. § 321a. Corporation may change Its principal place ot business. Every corporation that has been or may be cre-> ated under the general laws of this state may change itsi 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 capital stock of the corporation must be obtained) and filed in its office. When such consent is obtained and filed, notice of the intended removal or change must be published, at least once a week, for three successive weeks, in some newspaper published in the county, wherein saidi principal place of business is situated, if there is one pub-» lished therein; if not in a newspaper of an adjoining! county, giving the name of the county or city where it is? avU Code— T § 321b FORMATION OF CORPORATIONS. 98 situated and that to which it is intended to remove it. Whenever any such change is made, a copy of the resolu- tion or action of the board of directors authorizing the same together with a copy of an affidavit of the publica- tion above required, all duly certified 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. This section shall not be construed to require such ! consent, notice or publication in the case of any such re- moval from one location to another in the same city, town or village En. Stats. 1875-6, 73. Am'd. 1903, 254. § 321b. Stockholders' meetings, who may vote at; proxies. At all meetings of stockholders of corporations 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 ab- sent or nonattending stockholders or members shall be held by some person or persons present at such meeting and shall be executed in accordance with the provisions of this section. 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 to 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 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 to exceed seven years from the date of the execution of such proxy Every proxy shall be revocable at the pleasure of the person executing it; but a corporation having no capi- tal 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. En. Stats. 1905 22. 99 CORPORATE STOCK. S 322 CHAPTER II. CORPORATE STOCK. Article I. Stock and Stockholders, §§ 322-327. II. Assessment of Stock, §§ 331-349. ARTICLE I. STOCK AND STOCKHOLDERS. § 322. Liabilities of stockhoMers. § 323. Certificates, how and when issued. § 324. Shares personal property. Transfer of stock. Irrigation stock. § 325. Transfer of shares heM by married women, etc. Dividends pay- able to married women. § 326. Affidavit or bond may be required before transfer. § 327. Contract to relieve directors void. § 328. Shares of stock, etc.; duplicates, how issued. I 322. Liability of stockholders. Each stockholder of a corporation is individually and personally liable for such proportion of all its debts and liabilities contracted or in- curred 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 cor- poration. Any creditor of the corporation may institute joint or several actions against any of its stockholders, for the proportion of his claim payable by each, and in such action the court must ascertain the proportion of the claim or debt for which each defendant is liable, and a several judgment must be rendered against each, in con- formity therewith. If any stockholder pays his propor- tion of any debt due from the corporation, incurred while he was such stockholder, he is relieved from any further personal liability for such debt, and if an action has been brought against him upon such debt, it 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 determined by the amount of stock or shares owned by him at the time the debt or liability was incurred; and such liability is not released by any subsequent transfer of stock. The term stock- holder, as used in this section, applies not only to such persons as appear by the books of the corporation to be such, but also to every equitable owner of stock, al- though the same appears on the books in the name of an- other; and also to every person who has advanced the in- stallments or purchase money of stock in the name of a minor, so long as the latter remains a minor; and also to § 222 CORPORATE STOCK. 100 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 provi- sions 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 be- comes competent and able to control the same; but the responsibility of the guardian or trustee making the in- vestment continues until that period. Stock neld as col- lateral security, or by a trustee, or in any other represen- tative capacity, does not make the holder thereof a stock- holder within the meaning of this section, except in the cases above mentioned, so as to charge him with any pro- portion of the debts or liabilities of the corporation; but tJie pledgor 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 in- dividually 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 against one or more stockholders, and similar judgments may be rendered. The liability of each stockholder of a corporation formed under the laws of any other state or territory of the United States, or of any foreign country, and doing business within this state, is the same as the liability of a stockholder of a corporation created under the constitution and laws of this state. En. March 21, 1872. Am'd. 1873-4, 203; 1875-6, 73; 1905, 396. The change consists in the substitution of the language of the first sen- tence of Section 3 of Article XII of the Constitution in place of the first sentence of the present section. As the section now stands, it is believed to be unconstitutional. (See Larrabee v. Baldwin, 35 Cal. 155.) The words "an equal share" are substituted for "his propor- tion." — Code Commissioner's Note. Cal. Rep. Cjt. 59, 109; 59, 110; 59, 286; 62, 461; 64, 121; 64, 288; 64, 289; 65, 210; 87, 29; 87, 31; 87, 32; 95, 580; 95, 589; 97, 95; 99, 92; 107, 381; 107, 446; 108, 4; 108, 5; 109, 588; 111, 63; 111, 66; 113, 25; 115, 380; 115, 594; 116, 384; 118, 276; 122, 672; 122, 673; 122, 674; 124, 150; 125, 8; 125, 412; 127, 82; 127, 675; 130, 274; 133, 507; 136, 513; 140, 104; 140, 105; 141, 227; 142, 384; 147, 575. Act to protect stockholders from fraudulent representa- tions of officers: See post. Appendix, title Corporations. Liability of stockholders for debts of the corporation la dleclared in Const. Cal. 1879, art. XII, sec. 3. ™ CORPORATE STOCK. $§ 323-325 i •. § 323. Certificates, how and when issued. All corpora- §323 tions for profit must issue certificates for stock when fully Am'd. paid up, signed by the president and secretary, and may -» /foo' 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. En. March 21, 1872. Am'd. 1905, 397. The change consists in the addition of the words "but any certificate issued prior to full payment must show on its face what amount has been paid thereon," the object being to require a certificate issue! prior to full payment to show the amount paid thereon. — Code Com- missioner's Note. Cal. Rep. Clt. 82, 603; 96, 329; 101, 79; 135, 583. § 324. Shares personal property. Transfer of stock *"' Irrigation stock. Whenever the capital stock of any cor §324 poration is divided into shares, and certificates therefor /^r^'j, are issued, such shares of stock, except as hereinafter pro- ^ ^^pj.' vided, are personal property, and may be transferred by indorsement by the signature of the proprietor, his agent, attorney, or legal representative, and the delivery of the certificate; but such transfer is not valid, except as to the 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 certifi- cate, the number or designation of the shares, and the date of transfer; provided, however, that any corporation organized for, or engaged in the business of selling, dis- tributing, supplying, or delivering water for irrigation pur- poses or for domestic use, may in its by-laws provide that water shall only be so sold, distributed, supplied, or de- livered 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 oflice of the county recorder in the county where such lands are situated, the shares of stock so located on any land shall only be transferred with said lands, and shall pass as an appurtenance thereto. En. March 21, 1872. Am'd. 1895, 118. Cal. Rep. Cit. 53, 431; 58, 428; 63, 364; 72, 9; 79, 331; 82, 603; 84, 137; 108, 493; 109, 632; 113, 276; 113, 277; 113, 278; 126, 534; 134, 410; 136, 513; 141, 16; 146, 240; 146, 242. § 325. Transfer of shares held by married women, etc. Dividends payable to married women. Shares of stock in corporations standing on the books of the corporation in §§ 326. J27 CORPORATE STOCK. lOJ the name of a married woman may be transferred by her, her agent or attorney, without the signature of her hus- band, 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 at- torney, in the same manner 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. En. March 21, 1872. Am'd. 1905, 397. The araen-dment is designed to make it clear that shares of stock stand- ing in the name of a married woman are presumed to be her sep&,rate property, and that they may be dealt with by her as such, in the absence of proof and notice to the contrary.— Code Commissioner's Note. § 326. Affidavit or bond may be required before trans- fer. When the shares of stock in a corporation are owned by parties residing out of the state, the president, secre- tary, 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 nonresident owner, or from the person claiming under the transfer, an affidavit or other evidence that the nonresident 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, a bond of indemnity, with two sureties, satisfactory to the officers of the corporation; or, if not so satisfactory, then one approved by a judge of the superior court of the county in which the principal office of the cor- poration is situated, conditioned to protect the corporation against any liability to the legal representatives of the owner of the shares, in case or his or her death before the transfer; and if such affidavit or other evidence or bond be not furnished when required, as herein provided, neither the corporation, nor any officer thereof, shall be liable for refusing to enter the transfer on the books of the corpora- tion. En. March 21, 1872. Am*d. 1873-4, 205; 1883, 4. Cal. Rep. Cit. 58, 428. § 327. Contract to relieve directors void. Any contract 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. En. Stats. 1880, 9. Cal. Rep. Cit. 84, 422. 102a CORPORATE STOCK. § 828 § 328. Shares of stock, etc.; duplicates, how Issued. Whenever a certificate of stock or of shares in a corporation organized under the laws of this state has been lost, de- stroyed or wrongfully withheld, the owner thereof may bring an action against such corporation in the superior court ot the county In which is located its principal place of busi- ness, for the purpose of obtaining a new or duplicate cer- tificate. 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 right, title, or interest in, or lien upon, such stock, all such persons must be made parties defendant with the corporation. 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 pendency of the action, the names of the parties thereto, the court in which it is pending, the name of the cor- poration 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. 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 judgment as from the facts es- tablished may be proper; but if no one appears within the time designated in such notice, nor within the time al- lowed by law after the services of such summons, the court must hear such evidence as may be offered in sup- port of the allegations of the complaint, and make and file its decision thereon, and thereupon may enter its judg- ment canceling the lost, destroyed or wrongfully withheld certificate and directing the corporation, upon payment to it of all costs incurred by it in the premises and without costs against the corporation, to issue to the plaintiff a new or duplicate certificate, x\fter the issuing of a new certificate by the corporation pursuant to any judgment in such action, no action can ever be maintained by any per- son against the corporation in reference to said lost or destroyed certificate or the shares represented thereby, and thereafter any such action is forever barred as against the corporation. En. Stats. 1905, 500. ■■ %U U 331, 3S2 CORPORATE STOCK. 1Mb AETICLB n. ASSESSMENTS OP STOCK. § 331. Directors may levy assessments. § 832. Limitation. How levied. § 383. Lrevy of assessment. Old assessment remaining unpaid. § 834. What order shall ccntalH. § 835. Notice of asssesament. Form. § 836. Publication and service of notice. § 337. Delinquent notice. Form. § 838. Contente of notice. § 839. How published. ^ § 340. Jurisdiction acquired, how. § 341. Sale to be by public auction. § 342. Hlgrheat bidder to be the purchaser. § 343. In default of bidders, corporation may purchase. § 344. Disposition of stock purchased by corporatlOH. § 346. Extension of time of delinquent sale. § 346. Assessments shall not be invalidated. § 347. Action for recovery of stock, and limitation thereof. § 348. Affidavits of publication. Affidavits of sale. To be filed. § 849. Waiver of sale. Action to recover assessment. § 331. Directors may levy assessment. The directors of any corporatioii formed or existing under the laws of this state, after one-fourth of its capital stock has been subscribed, may, for the purpose of paying expenses, con- ducting business, or paying debts, levy and collect assess- ments upon the subscribed capital stock thereof, in the manner and form, and to the extent provided herein. En. March 21, 1872. Am'd. 1873-4, 206. Cal. Rep. Cit. 65, 194; 65, 200; 65, 209; 65, 210; 80, 377; 82, 603; 92, 50; 101, 80; 108, 492; 109, 588; 116, 263; 126, 586; 127, 82; 129, 296; 133, 66; 135, 632; 141, 227; 145, 700; 145, 701; 145, 702; 146, 706. g 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 installments of not more than ten per cent per month, unless In the articles of incorporation it is otherwise provided; 11. The directors of fire or marine insurance corporations laay assess such a percentage of the capital stock as they deem proper. En. March 21, 1872. 103 CORPORATE STOCK. §§ 333-338 Cal. Rep. Cit. 65, 194; 65, 199; 65. 200; 65, 202; 65, 201; 65, 209; 65, 210; 93, 549; 93, 550; 99, 14; 107, 450; 145,701; 145, 710. . Subd. 1—145, 702; 145,707; 145 709. § 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 8. The assessment falls within the provisions of either the first, second, or third subdivision of section 332. En. March 21, 1872. Cal. Rep. Cit. 65, 195; 65, 201. § 334. What order shall contain. Every order levying an assessment must specify the amount thereof, when, to whom, and where payable; fix a day subsequent to the full term of publication of the assessment notice, on which the unpaid assessments shall be delinquent, not less than thirty nor more than sixty days from the time of making the order levying the assessment; and a day for the sale of delinquent stock, not less than fifteen nor more than sixty dcys from the day the stock is declared delinquent. En. March 21, 1872. § 335. Notice of assessment. Form. Upon the making 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 corporation, payable (when, to whom, an ante. 117 CXDRPORATE POWERS. 55 363, 304 § 363. Correction of erroneous filing of articles of In- corporation. When articles of incorporation have been prepared, subscribed, and executed in accordance with the provisions of sections two hundred and ninety and two hundred and ninety-two of the Civil Code, and such ori- ginal articles filed by error or inadvertence with the clerk of a county other than that named in the articles of incorporation as the county in which the principal place of business is to be transacted, and the secretary of state shall have issued a certificate of incorporation based on a certified copy of such original articles of incorporation, any stockholder or director of such corporation may peti- tion the superior court of the county in v/hich said original articles of incorporation were filed for an order to with- draw such original articles of incorporation, 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 be verified, and must state clearly the facts, showing that such articles of incorporation were filed by inaavertence and mistake; and notice of the hearing of said petition must be given for at least ten days before the day of hearing, by publication in a newspaper published in the county where such petition is filed. Upon the day set for hearing the petition the superior court may grant an oraer allowing such original articles of incorporation to be withdrawn, and a certified copy of the copy in the oflSce of the secre- tary of state in the place thereof filed; and the original ar- ticles of incorporation must be filed within ten days there- after In the county in which the principal place of business is to be transacted, as stated in such articles of incorpora- tion, and a certified copy of the order allowing such action must be filed with the certified copy in the office of the secretary of state, after which said corporation shall be entitled to all rights and privileges of a private corpora- tion, 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 in- stance. En. Stats. 1889, 332. § 364. Corporations may transfer foreign concessions. Any corporation of this state owning grants, concessions, franchises, and properties, or any thereof, in any foreign country, may sell and convey the same to the government of such foreign country, or to any person or persons, or any corporation or corporations, or association, or associa- § 364 CORPORATE POWERS. tions, created by or existing under the laws of this or any other state of the United States, or any foreign govern- ment; 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 con- currence in writing of the holders of two-thirds in amount of the capital stock thereot En. Stats. 1899, 95. p. ^00 §365 C. C, 1906, new. Enact. § 365. Whenever* it shall appear that the minutes, rec- ords, 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 min- utes, records, 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. On the filing of such petition, duly verified, said superior court shall make an order, fix- ing 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 publi- cation. Notice of such hearing shall be given by publica- tion 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 lo- cated, 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. 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 ser- vice may be made at any time during said period of pub- lication. If the place of business or place of residence of any persons affected by said petition or proceedings is un* known to the corporation or any of its officerSy within forty-eight hours after the filing of said petition, a copy of said notice shall 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 addi- tion to the notice by publication, th^ petitioner shall ad- dress a copy of said notice to each of the stockholders of said corporation, and also to each of the persons af- fected by said petition, whose names and places of resi- dence or business are known to the corporation or any of its officers, at his place of business or residence, postage pre- paid, which notice shall be mailed to such stockholders or persons within forty-eight hours after the filing of said petition. The court before proceeding to hear the case, shall require proof to be made that notice has been pub- lished and given as hereinbefore 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 pe- titioner stating the reasons why such personal service has not been made, shall also be then filed. Upon the com- pletion of said publication, said court shall have jurisdic- tion to inquire into and determine the loss, injury or de- struction 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 owner- ship 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 certificates of stock or other paper or docu- ment 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. 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 un- known owners, and in all proceedings of such corporation, including proceedings for assessment of stock, and the collection of such assessment, and the payment of divi- dends, and notice of sale and sale for delinquent assess- ments, said stock or dividends shall be so designated as belonging to unknown owners, without giving the name of the owner thereof, or the number of the certificate or series or issue. [In effect June 18, 1906.] I CORPORATE POWERS. §§ 877, S» AHTICLB a RECORDS. I § 377. Records— of what, and how kept. § 378, Other records to he kept hy corporations for profit, sad otlwrs. § 377. Records — of what, and how kept. All corpora- tions for profit are required to keep a record of all their business transactions; a journal of all meetings of their directors, members or stockholders, with the time and place of holding the same, whether regular or special, and if special, its object, how authorized, and the notice tliereof given. The record must embrace every act done or ordered to be done; who were present, and who absent; and, if requested by any director, member, or stockholder, the time shall be noted when he entered the meeting or ob- tained leave of absence therefrom. On a similar request the ayes and noes must be taken on any proposition, and a record thereof made. On similar request, the protest of any director, member or stockholder, to any action or proposed action, must be entered in full — all such records to be open to the inspection of any director, member, stock- holder, or creditor of the corporation. En. March 21, 1872. Gal. Rep. Cit. 63, 484; 76, 26; 78, 633; 94, 549; 107, 636; 135, 625; 146, 223. Refusal to permit inspection: See Pen. Code, sec. 565. § 378. Other records to b« kept by corporatlorrs for profit, and others. In addition to the records required to be kept by the preceding section, corporations for profit must keep a book, to be known as the "Stock and Transfer Book," In which must be kept a record of all stock; the names of the stockholders or memhers, alphabetically arran-ged; installments paid or unpaid; assessments levied and paid or unpaid; a statement of every alienation, sale, or transfer of stock made, the date thereof, and by and to whom; and all such other records as the by-laws prescribe. Corporations for religious and benevolent purposes must provide in their by-laws for such records to be kept as may be necessary. Such stock and transfer book must be kept open to the inspection of any stockholder, member, or creditor. En. March 21, 1872. Cal. Rep. Cit. 101, 148; 107, 453; 107, 636; 146, 223. See acts concerning statements by banks and bankers. Appendix, title Banks and Banking. §§ 382-3^4 CORPORATE POWERS. ttO ARTICLE III. EXAMINATION OF CORPORATIONS, ETC. § 382. Examination into afEairs of corporation, how made by offlc^^ of state. § 383. Examination made by the legislature. § 384. Chapter and article may be repealed. § 382. Examination into affairs of corporation, how made by officers of state. The attorney general or district attorney, whenever and as often as required hy the igov- ernor, must examine into the affairs and conditions of any corporation in this state^ and report such examination, in writing, together with a detailed statement of facts, to the governor, who must lay the same before the legislature; and for that purpose the attorney-general or district attorney may administer all necessary oaths to the di- rectors and officers of any corporation, and may examine them on oath in relation to the affairs and condition thereof, and may examine the books, papers and documents belonging to such corporation, or appertaining to its affairs and condition. En. March 21, 1872. Cal. Rep. Cit. 72, 23; 110, 460. Permitting inspection of books: See Pen. Ck)de, sec. 565. § 383. Examination made by the legislature. The legis- lature, 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 stock- holders of such corporation, and may examine them on oath in relation to the affairs and condition thereof; and may examine the safes, books, papers, and documents be- longing to such corporation, or pertaining to its affairs and condition, and compel the production of all keys, books, papers, and documents by summary process, to be issued on application to any court of record or any judge thereof, under such rules and regulations as the court may pre- scribe. En. March 21, 1872. Permitting inspection of books: See Pen. Code, sec. 565. § 384. Chapter and article may be repealed. The legis- lature may at any time amend or repeal this part, or any ^^^ time it commences to do business therein, file in the office of the secretary of state a designation of some person re- siding within the state upon whom process issued by au- thority 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 piK>cess 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. En, Stats. 1905, 630. These sections <»dify the statute of 1889, page HI, and section 1, stat- ute of 1880, page 21. — Code Commissioner's Note. The act intended to be referred to here by the Commissioner is prob- ably that of 1871-2, p. 826, as amended 1899, p. 111.— Ed, § 406. Foreign corporations, statute of limitation^ in favor of. Proof of corporate existence. Change of desig- nation. Every corporation which complies with the pro- visions of this chapter is thereafter entitled to the benefit of the laws of this state limiting the time for the com- men<5ement of civil actions, but no corporation not cre- ated 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 provi- sions of the preceding section. 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, evi- (Jence that such body has acted as a corporation, or em- 1240 ITORElGN CORPORATIONS. 5§ iOt, 40B ployed methods usually employed by corporations, must be received by the court for the purpose of proving the existence of such corporation, the suflaciency of such evi- dence to be determined by the court with like effect as in other cases. Every corporation which has complied with the laws then in force, requiring it to make and file a des- ignation 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 re- voked 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 corporation must make a new designation, or be subject to the provisions and penalties of this chapter. En. Stats. 1905, 630. See note to § 405, ante. § 407. Foreign railway corporations, rights of In this state. Every railway or other corporation organized for the purpose of carrying freight or passengers under or by vir- tue of the laws of the United States, or of any state or ter- litory 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, obligations, and burdens as if created or organ- ized 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. En. Stats. 1905, 631. See note to § 405, ante. § 408. Foreign corporations to file certified copies of ar- ticles of Incorporation. Every corporation organized under the laws of another state, territory, or of a foreign country, which is now doing business in this state, or is maintain- ing an office herein, or which shall hereafter do business in this state or maintain an office herein, or which shall enter this state for the purpose of doing business herein, must file in the office of the secretary of state of the State of California a certified copy of its articles of incorporation, or of its charter, or of the statute or statutes, or legisla- tive, or executive, or governmental act or acts creating it, in cases where it has been created by charter, or statute, or legislative, or executive, or governmental act, and a cer- § 410 FOREIGN CORPORATIONS. 124d tlfled copy thereof, duly certified by the secretary of state of this state, in the office of the county clerk of the county where its principal place of business is located, and also where such corporation owns property. En. Stats. 1905, 631. These sections codify the statute of 1001, p&ire 108. — Code Commission- er's Note. § 409. Foreign corporations, fees to be paid by, on filing certified copies of articles of Incorporation. For filing and issuing a certified copy as require-d 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 as are paid by corporations formed under the laws of this state. En. Stats. 1905, 631. See note to § 408, ante. § 410. Foreign corporations, penalty for failure to file certified copies of articles of Incorporation. Every corpora- tion organized under the laws of another state, territory, or of a foreign country, which shall neglect or fail, within ninety days from the taking effect of this section, to com- ply with the conditions of sections four hundred and eight and four hundred and nine of this code, shall be subject to a fine 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 ad- vised 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 Bhall instruct the district attorney of the county wherein such corporation has its principal place of business, or the attorney general of the state, or both, as soon as practic- able, 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; in addition to which penalty, no foreign corporation which shall fail to comply with sections four hundred and eight and four hundred and nine of this code can maintain any suit or action in any of the courts of thi% state until it has complied with said sections; provided, that any such corporation which, prior to the 8th day of March, 1901, shall have complied with the provisions of the act entitled **An act to amend 'An act In relation to for- eign corporations,* approved April 1, 1872," approved March 17, 1899, is exempted from the provisions of this section and the two sections next preceding. En. Stats. 1905, 631. See note to § 408, ante. GENERAL PROVISIONS. {$ 414. 416 TITLE II. INSURANCE CORPORATIONS. 3hapter I. General Provisions, §§ 414-420. II. Fire, Marine and Title Insurance Corporations, §§ 424-432. III. Mutual Life, Health, and Accident Insurance Corporations, §§ 437-452. CHAPTER I. GENERAL PROVISIONS. W% 414. Subscriptions to capital stock opened, and how colleet«d. § 415. Purchase and conveyance of real estate. § 416, Policies, how Issued and by whom signed. § 417. Dividends, of what and when declared. § 418. Directors liable for loss on Insurance in certain cajses. 8 419. Capital to be at least two hundred thousand dollars. I 420. Exception, capital of one hundred thousand dollars. § 421. Investment of capital. I 421. How capital an\3 accumulations may be Invested by. § 414. Subscriptions to capital stock opened, and how collected. After the secretary of state issues the certifi- cate of incorporation, as provided in article I, chapter I, title I, of this part, the directors named in the articles of incorporation must proceed in the manner specified, or in their by-laws, or if none, then in such manner as they may by order adopt, to open books of subscription to the cap- ital stock then unsubscribed, and to secure subsoriptions to the full amount of the fixed capital; to levy assessments and installments thereon, and to collect the same, as in chapter II of title I provided. En. March 21, 1872. Insurance in general: See post, sees. 2527-2766. § 415. Purchase and conveyance of real estate. No in- surance corporation may purchase, hold or convey real estate, except as hereinafter set forth, to wit: 1. The buildin-g 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 con- tracted or for money due. {§ 416-419 GENERAL PROVISIONS. 12« 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 accommodation of such corporation in the transaction of its business, must be sold and disposed of within five years after such corporation acquired title to the same. En. March 21, 1872. Am'd. 1905, 21. § 416. Policies, how issued and by wham signed. All policies made by insurance corporations must be sub- scribed by the president or vice-president, or in case of the death, absence, or disability of those officers, by any two of the directors, and countersigned by the secretary of the corporation. All such policies are as binding and obligatory upon the corporation as if executed over the corporate seal. En. March 21, 1872. § 417. Dividends, of what and when declared. The di- rectors 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 \vhich are undeter- mined and outstanding at the time of making the dividend must not be treated as profits, nor divided, except as pro- vided in chapter II of this title. En. March 21, 1872. Declaring dividends: See ante, sec. 309. § 418. Directors liable for loss on insurance in 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. En. March 21, 1872. *''*** § 419. Capital to be at least two hundred thousand dol- 8419 ^^''s. Every company, corporation, or association hereafter olnrd formed or organized under the laws of this state for the -- transaction of business in fire, marine, inland navigation, or life insurance, must have a subscribed capital stoclj 411 127 GENERAL PROVISIONS. { 420 equal to at least two hundred thousand dollars, twenty-five per cent of which must be paid in previous to the issuance of any policy, and the residue within twelve months from the day of filing the certificate of incorporation. No per- son, corporation, or association organized or formed under the laws of any other state or country, as a stock company, must transact any such insurance business in this state, unless such a person, corporation, or association has a paid- up capital stock equal to at least two hundred thousand dollars in available cash assets, over and above all liabili- ties for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided in section six hundred and two of the Political Code of this state. Nor must any person, corporation, or association, organized or formed under the laws of any other state or country as a mutual insurance company, transact any such insurance business in this state, unless such person, corporation, or associa- tion possesses available cash assets equal to at least two hundred thousand dollars, over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided in said section six hundred and two of the Political Code of this state. En. March 21, 1872. Am'd. 1873-4, 269; 1877-8, 80. Gal. Rep. Cit. 64, 52. r' ' * * § 420. Exception, capital of one hundred thousand doj. oaoq lars. Every company, corporation, or association, here J^^u^ after formed or organized under the laws of this state foi J^^^' the transaction of business in any kind of insurance not ^' enumerated in section four hundred and nineteen of the Civil Code must have a subscribed capital stock equal to at least one hundred thousand dollars, which must be paid in at the times and in the manner prescribed for the payment of the capital stock of a corporation organized under section four hundred and nineteen of said Civil Code. No company, corporation, or association, formed or or- ganized under the laws of any other state or country as a stock company, must transact any such insurance busi- ness in this state without a paid-up capital stock of not less than one hundred thousand dollars in available cash assets, over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided in section six hundred and two of the Political Code of this state. Nor must any company, corporation, or association, formed or organized under the laws of any other state or country as a mutual insurance company, transact any such insurance business in this state unless HXLch company, corporation, or association, possesses avail- ! 421 GENERAL PROVISIONS. 12? able cash assets equal to at least one hundred thousand dollars over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided in said section six hundred ana two of the Political Code of this state. En. Stats. 1877-8, 80. § 421. Investment of capita!. Corporations organized subsequent to April first, eighteen hundred and seventy- eight, under the laws of this state for the transaction ot business in any kind of insurance, may invest their capital and accumulations in the following-named securities: 1. In the purchase of, or loans upon interest-bearing bonds of the United States government. 2. In the purchase of, or loans upon interest-bearing bonds of any of the states of the United States, not in default for interest on such bonds. 3. In the purchase of, or loans upon interest-bearing bonds of any of the counties and incorporated cities and towns of any state or territory of the United States not in default for interest on such bonds. 4. In loans upon unincumbered real property, which shall be worth, at the time of the investment, at least, forty per cent more than the sum loaned, or upon merchandise or cereals in warehouse, but in no instance shall such loan be made in excess of seventy-five per cent of the security taken. 5. 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 proceed- ings required by law for the ascertainment and determina- tion of the condition of such corporations. 6. Corporations organized for and engaged in the business of fire, life, health, accident and marine insurance, may, after the investment of two hundred thousand dollars, and corporations formed or organized for the transaction of business in any kind of insurance not enum-erated in section four hundred and nineteen of the Civil Code may, after the investment of one hundred thousand dollars, in the man- ner provided in subdivisions one, two, three and four of this section, invest the balance of their capital and any accu- mulations in interest-bearing first mortgage bonds of any corporations (except mining companies), not in default of Interest, organized ancl carrying on business, under the laws 129 GENERAL PROVISIONS. f 421 of any state of the United States. Provided, that a two- thirds vote of all the directors of such corporations shall approve such investment. It shall be the duty of the offi- cers of such corporation to report quarterly, on the first days of January, April, July and October of each year to the insurance commissioner a list of such investments so made by them, and the insurance commissioner may, if such investments, or any of them, seem injudicious to him, require the sale of the same. But no investment in the securities named in subdivisions one, two, three and six of this section must be made in an amount exceeding the market value of such securities, at the date of such in- vestment. 7. Life insurance companies, or corporations, no matter when organized, may loan upon their own policies, provided that the amount so loaned upon each policy shall not ex- ceed 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 deposited with the insurance commissioner under section six hundred 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. Nothing in this section contained shall be construed as In any wise affecting the provisions of section tour hundred and forty-four of this code. En. Stats, 1905, 34. Cal. Rep. Cit. 123, 203. This section was adopted March 3, 1906. There was also another § 421 adapted March 21, 1905, a« fonows: § 421. How capital and accumulations may be Invested by. Corporations 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. In the purchase of, or loans upon interest-bearing bonds of the United States government. 2. In the purchase of, or loans upon interest-bearing bonds of any of the states of the United States, not in de- fault 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 of any state or territory of the United States not in default for interest on such bonds. 4. In loans upon unencumbered real property, which shall be worth, at the time of the investment, at least, forty per «tTil Code-« i 42i GENERAL t>ROVISlOKa Uo cent more than the sura loaned, or upon merchandise or cereals in warehouse, but in no instance shall such loan be made in excess of seventy-five per cent of the security- taken. 5. 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 par 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 proceed- ings required by law for the ascertainment and determina- tion of the condition of such corporations. 6. Corporations 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 corporations formed or organized for the transaction of business in any kind of insurance not enumerated in sec- tion four hundred and nineteen of the Civil Code may, after the investment of one hundred thousand dollars, in the manner provided in subdivision one, two, three and four of this section, invest the balance of their capital and any ac- cumulations in the purchase of or loans upon the stock of any corporation (except mining companies) organized and carrying on business under the laws of the State of Cali- fornia 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 first mortgage bonds of same not in default of interest; pro- vided, that a two-thirds vote of all the directors of such corporations shall approve such investment. It shall be the duty of the officers of such corporation to report quarterly during the months of January, April, July and October ofi each year to the insurance commissioner a list of such in- vestments so made by them, and the insurance commis- sioner may, if such investments, or any of them, seem in- judicious to him, require the sale of the same But no in- vestment 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 Buch investment. 7. Life insurance corporations may loan upon their own policies provided that the amount so loaned upon each pol- icy 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 in FtRE, ETC., INSURANCB CORPORATIONS. §§ 424, fZn be deposited with the insurance commissioner under sec- tion six hundred and thirty-four of the Political Code; and provided further, that whenever any such loan in any am,ount 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 torth- with canceled. 8. Nothing in this section contained shall be construed as in anywise affecting the provisions of section four hun- dred and forty-four of this code. En. 1905, 628. 41 » 2^1 [a CHAPTER II. m'd* FIRE, MARINE, AND TITLE INSURANCE CORPORATIONS. 41?, § 424. Payment of subscriptions. Capital to be all paid in twelve months. § 425. Certificate of capital stock paid up to be filed, and when. § 426. Property which may be insured. § 427. Funds may be invested, how. § 428. Limit of one risk. § 429. Amounts to be reserved before making dividen-ds. § 430. Reservation by companies with less than $200,000 capital. § 431. Amounts to be reserved by life insurance companies. § 432. Corporations for insuring titles to real estate. § 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 cash within twelve months from the filing of the articles of in- corporation, and no policy of insurance must be issued or risk taken until twenty-five per cent of the whole capital stock is paid up. En. March 21, 1872. Fire insurance: See post, sees. 2752 et seq. Marine insurance: See post, sees. 2655 et seq. County fire insurance companies, act providing for: See post, Appendix, title Insurance. § 425. Certificate of capital stock paid up to be filed, and when. The president and a majority of the directors must within thirty days after the payment of the twenty-five per cent of the capital stock, and also within thirty days after the payment of the last installment or assessment of the capital stock limited and fixed, prepare, subscribe, and swear to a certificate setting forth the amount of the fixed capital and the amount thereof paid up at the times re- spectively in this section named, and file the same in the office of the county clork of the county where the principal place of business of the corporation is located, and a dupli- cate thereof, similarly executed, with the insurance com- missioner. En. March 21, 1872. 55 426-430 FTRE, ETC., INSURANCE CORPORATIONS. 132 § 426. Property which may be Insured. Every corpora- tion formed for fire or marine insurance, or both, may make insurance on all insurable interests within the scope of its articles of incorporation, and may cause itself to be reinsured. En. March 21, 1872. Insurable interest defined: See post, sec. 2546. § 427. Funds may be invested, how. EJn. March 21, 1872. Am'd. 1873-4, 210, 1877-8, 81; 1887, 22; 1899, 66. Rep. 1905, 34; 1905, 628. Cal. Rep. Cit. 123, 203. See section 421, ante. § 428. Limit of one risk. Fire and marine insurance corporations must never take on any one risk, whether it is a marine insurance or an insurance against fire, a sum exceeding one-tenth part of their capital actually paid in, and intact at the time of taking such risk, without at once reinsuring the excess above one-tenth. En. March 21, 1872. Amended 1873-4, 210. Amended 1905, 570. § 429. Amounts to be reserved before making dividends. No corporation formed subsequent to April first, eighteen hundred and seventy-eight, under the laws of this state and transacting fire, marine, inland navigation insurance business, or insurance provided for by section four hun- dred and twenty (420) of this code, except insurance of the title to real property, must make any dividends except from profits remaining on hand after retaining unim- paired: 1. The entire subscribed capital stock. 2. All the premiums received or receivable on outstand- ing marine or inland risks, except marine time risks. 3. A fund equal to one half of the amount of all pre- miums on all other risks not terminated at the time of making such dividend. 4. A sum suflacient to pay all losses reported or in course of settlement, and all liabilities for expenses and taxes. En. March 21, 1872. Am'd. 1877-8, 81; 1887, 23. Declaring dividends generally: See ante, sec. 309. see also ante, sec. 417, as to declaring dividends by insurance companies generally. § 430. Reservation by companies with less than $200,000 capital. No fire or marine insurance corporation, with a subscribed capital of less than two hundred thousand dol- lars, must declare any dividends, except from profits re- maining on hand after reserving: 123 rmE, El^C, Il^URAKCE CORPORATIONS. §§ 4'3l, 432 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 outstand- ing 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 suflacient to pay all losses reported or in course of settlement, and all liabilities for expenses and taxes. En. March 21, 1872. Cal. Rep. Cit. 110, 460. Act conferring power to establish fire patrol: See post. Appendix, title Fire Partol. § 431. Amounts to be reserved by Irfe Insurance com- panies. En. Stats., 1877-8, 81. Rep. 1905, 571. Section 431, which dealt with the amounts to be received by life Insur- ance companies, stood in a chapter entitled "Fire, Marine, and Title Insurance Corporations." It is transferred to a more appropriate chapter, and numbered 452, — Code Commissioner's Note. § 432. Corporations for Insuring titles to real estate. 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; and if at any time such fund shall be impaired by reason of a loss, the amount by which it may be impaired shall be restored in the manner herein- above provided for its accumulation. The reporting of ^a loss shall be deemed an impairment of such fund for the purposes of this section. Such corporation 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 provisions of this section. 3. A sum sufficient to pay all losses reported, or in course of settlement, which shall be in excess of the surplus fund, and all liabilities for expenses and taxes. En. 1887, 23. §§ 437, 428 LIFE, ETC., INSURANCE CORPORATIONS. CHAPTER III. MUTUAL LIFE, HEALTH, AND ACCIDENT INSURANCE CORPO- RATIONS. § 437. Capital stock. Guarantee fund. § 438. Of what guarantee fund shall consist. § 439. What constitutes, .and •deficiency in fixed capital. § 440. Declaration of fixed capital to be filed. § 441. Guarantee notes and interest, how disposed of. § 442. Insured to be entitled to vote, when. § 443. Number of directors may be altered, how. § 444. Investment of capital stock. § 445. Limitations to the holding of stock and in other partlcalara may be provided for in by-laws. § 446. Premiums, how payable. § 447. Insurance corporations to furnish data to instirance commis- sioner. Employment of actuary. § 448. No stamp required on accident insurance contract, § 449. Valuation of policies, retaliatory provisions. § 450. Policy to contain what provisions. § 451. Fraternal societies exempt from insuraace laws. § 452. Dividends, how made. § 437. Capital stock. Guarantee fund. Every cor- poration formed for the purpose of mutual insurance on the lives or health of persons, or against accidents to per- sons 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 any insurance upon any risk or transact any other business as a corporation until its capital stock is fully paid up in cash, nor until it has also obtained a fund, to be known as a "guarantee fund," of not less than two hundred and fifty thousand dollars, as is hereinafter provided. If more than the requisite amount is subscribed, the stock must be dis- tributed pro rata among the subscribers. Any subscrip- tion may be rejected by the board of directors or the com- mittee thereof, either as to the whole or any part thereof, and must be, so far as rejected, without effect, nothing in this section shall be deemed to contravene any of the pro- visions of section four hundred and fifty-one. En. March 21 1872. Am'd. 1905, 183. Cal. Rep. Cit. 121, 320; 121, 321; 121, 324. Act relating to life, health, accident and annuity or en- dowment insurance: See post. Appendix, title Insurance. Incorporation of mutual insurance companies: See post, Appendix, title Insurance. § 438. Of what guarantee fund shall consist. The guar- antee fund mentioned in the preceding section must con- sist of the promissory notes of solvent parties, approved I LtFE, ETC., INSURANCE CORPORATIONS. §§ 439. 440 by the board of directors and by each other, payable to the corporation or its order, and at such times in such modes, and in such sums, with or without interest, and conform- able in all other respects to such requirements as the board of directors prescribed; but the amount of the notes given by any one person must not exceed in the whole the sum of five thousand dollars, exclusive of interest. Such notes must be payable absolutely and at the option of the corporation; they must be negotiable, and may be indorsed and transferred, or converted into cash, or otherwise dealt with by the corporation, at its discretion, without refer- ence to any contingency of losses or expenses. Such notes, or the proceeds thereof, must remain with the corporation as a fund for the better security of persons dealing with it, and constitute the assets of the corporation, liable for all its debts, obligations and indebtedness next after its assets from premiums and other sources, exclusive of capital stock, until the net earnings, over and above its expenses, losses, and liabilities, shall have accumulated in cash, or securities in which the net earnings have been invested, to a sum which, with the capital stock, is equal to the ag- gregate of the original amounts of the guarantee fund and of the capital stock. En. March 21, 1872. § 439. What constitutes, and deficiency in fixed capital. The sum accumulated as provided in the preceding sec- tion, together with the capital stock, shall become and remain the fixed capital of the corporation, not subject to division among the stockholders or parties dealing with it, or to be expended in any manner otherwise than may be required in payment of the corporation's debts and actual expenses, until the business of the corporation is closed, its debts paid, and its outstanding policies ana obligations of every kind canceled or provided for; and if from any cause a deficiency at any time occurs in such fixed capital, no further division of profits must take place until such deficiency has been made up. En. March 21, 1872. § 440. Declaration of fixed capital to be filed. When- ever the fixed capital of the corporation is obtained aL hereinbefore provided, the president of the corporation and its actuary, or its secretary, if there is no actuary, must make a declaration in writing, sv/orn to before some no- tary public, of the amount of such fixed capital and of the particular kinds of property composing the same, with the nature and amount of each kind, which must be filed with §§ 441-444 UFB, ETC., INSURANCE CORPORATIONS. 186 the original articles of incorporation, and a copy, certi- fied by the county clerk, must he published 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 guaran- tee 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 thereon, or claim of that nature, must be surrendered by it to the makers thereof, respec- tively, or other parties entitled to receive the same. En. March 21, 1872. § 441. Guarantee notes and Interest, how disposed of. Until the guarantee fund is discharged from its obliga- tions, as provided In the preceding section, no note must be withdrawn from the fund, unless another note of equal solvency is sulDstituted therefor, with the approval of the board of directors. The corporation must allow a com- mission, not exceeding five per cent per annum, on all such guarantee notes while outstanding, and also interest on all moneys paid on such notes by the parties liable thereon, at the rate of twelve per cent per annum, payable half yearly until repaid by the corporation, unless the cur- rent rate of interest is different from this amount, in which case the rate payable may, from time to time, at inter- vals of not less than one year, be increased or reduced by the board of directors, so as to conform to the current rate. En. March 21, 1872. Am'd. 1873-4, 210. § 442. Insured to be entitled to vote, when. After the filing of the declaration of the fixed capital, as in this arti- cle 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, respectively. En. March 21, 1872. Cal. Rep. Cit. 74, 492. § 443. Number of directors may be altered, how. The number of directors specified in the articles of incorpora- tion may be altered from time to time during the existence of the corporation by resolution, at the annual meeting of a majority of those entitled to vote at the election of di- rectors, but the number must never be reduced below five. En. March 21, 1872. § 444. Investment of capital stock. Life, health and accident insurance corporations may invest their capital stock as follows: S444' S.«\'d. tn LIFE, ETC., INSURANCE CORPORATIONS. §§ 445-4*7 1. In loans upon unencumbered and improved real prop- erty within the state of California, which shall be worth at the time of the investment at least forty per cent more than the sum loaned. 2. In the purchase of or loans upon interest-bearing bonds, and other securities of the United States and of the state of California. 3. In the purchase of or loans upon interest-shearing bond's of any of the other states of the union, or of any county, or incorporated city, or city and county in the state of California. 4. In the purchase of or loans upon any stocks of corpo- rations formed under the laws of this state, except of min- ing corporations, which shall have, at the time of the in- vestment, a value, in the city and county of San Francisco, of not less than sixty per cent of their par value, and shall be rated as first-class securities; but no loans shall be made on any securities specified in subdivisions three and four of this section, in any amount beyond sixty per cent of the market value of the securities, nor shall any loan be made on the stock of the corporation, or notes or other Obligations of its corporators. En. March 21, 1872. Am'd. 1873-4, 211. § 445. Limitations to the holding of stock and In other particulars nnay 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 provisions 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 provisions of this title or part. En. March 21, 1872. § 446. Premiums, how payable. All premiums must be payable wholly in cash, or one-half or a greater propor- tion in cash, and the remainder in promissory notes bear- ing interest, as may be provided for by the by-laws. Agreements and policies of insurance made by the corpo- ration may be upon the basis of full or partial partici- pation in the profits, or without any participation therein, as may be provided by the by-laws and agreed between the parties. En. March 21, 1872. § 447. Insurance corporations to furnish data to insur- ance commissioner. Employment of actuary. Every life insurance corporation organized under the laws of this state must, on or before the first day of February of each §447 §1 448, 449 LIFE, ETC., INSURANCE CORPORATIONS. Ill year, furnish the insurance commissioner the necessary data for determining the valuation of all its policies out- standing on the thirty-first day of December then next pre- ceding. And every life insurance company organized un- der the laws of any other state or country, and doing busi- ness in this state, must, upon the written requisition of the commissioner, furnish him, at such time as he may desig- nate, the requisite data for determining the valuation of all of its policies then outstanding; such valuations must be based upon the rate of mortality established by the American experience life table and interest at four and one-half per cent per annum; provided, that from and after the thirty-first day of December, A. D. one thousand eight hundred and ninety-one, such valuations must be based upon the rate of mortality established by the combined ex- perience or actuaries' table of mortality, with interest at the rate of four per cent per annum. When the laws of any other state or territory require of a life insurance com- pany organized under the laws of this state a valuation of its outstanding policies by any standard of valuation dif- ferent from that named in this section, the insurance com- missioner is hereby authorized to make such valuation for use in such other state or territory, and to issue his cer- tificate in accordance therewith. For the purpose of mak- ing the valuations, the insurance commissioner is author- ized to employ a competent actuary, whose compensation for such valuations shall be three cents for each thousand dollars of insurance, to be paid by the respective com- panies Whose policies are thus valued. En. March 21, 1872. Am'd. 1873-4, 211; 1889, 35. § 448. No stamp required on accident Insurance contract. _. En. March 12, 1872. Rep. 1905, 571. p. 41<> his section exempts accident insurance companies from stamp duties, 8d4ft ^"^ ^® there are no such duties under the law as It now stands the g'tH-o gection is unnecessary.— Code Commissioner's Note. RepI'd. *y. A-«^ § 449^ Valuation of policies, retaliatory provisions. When the certificate of the insurance commissioner of this state, of the valuation of the policies of a life insurance company, as provided in section four hundred and forty- seven of the Civil Code of this state, issued to any com- pany organized under the laws of this state, snail not je accepted by the insurance authorities of any other state, in lieu of a valuation of the same, by the insurance oflacer of such other state, then every company organized under the laws of such other state doing business in this state, sjiall be required to have a separate valuation of its poli- §449 1» LIFE, EJTC, INSURANCE CORPORATIONS. f 450 cies made under the authority of the insurance commis- sioner of this state, as provided in section four hundred and forty-seven of the Civil Code. En. Stats. 1873-4, 270. § 450. Policy to contain what provisions. Every con- tract or policy of insurance hereafter made by any person or corporation organized under the laws of this state, or tinder 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 be- tween 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 'su<;h policy, it shall cease or become void solely by the nonpayment of any premium when due, its entire net reserve, by the American experience mortality, and interest at four and one-half per cent yearly, less any in- debtedness to the company on such policy, shall be applied by such company as a single premium, at such company's published rates in force at the date of original policy, but at the age of the insured at time of lapse, either to the purchase of nonparticipating term insurance for the full amount insured by such policy, or upon the written appli- cation by the owner of such policy, and the surrender thereof to such company within three months from such nonpayment of premium, to the purchase of a nonpartici- pating paid-up policy, payable at the time the original pol- icy would be payable if continued in force; both kinds of insurance to be su^bject to the same conditions, except as to payment of premiums, as those of the original policy. It may be provided, however, in such stipulation, that no part of such term insurance shall be due or payaible, un- less satisfactory proofs of death be furnished to the insur- ing company within one year after death, and that if death shall occur within three years after such nonpayment of premium, and during such term of insurance, there shall be deducted from the amount payable the sum of all the premiums that would have become due on the original policy if it had continued in force. K the reserve on en- dowment policies be more than enough to purchase tem- porary insurance, as aforesaid, to the end of the endow- ment term, the excess shall be applied to the purchase of pure endowment insurance, payable at the end of me term, if the insured be then living. If any life insurance corpo- ration 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 trans- §§ 451 -452a MUTUAL. BENEFIT, ETC., ASSOCIATIONS. 14* act business in this state shall thereupon and thereby cease and terminate, and the insurance commissioner shall im- mediately revote the certificate of such corporation 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. En- Stats. 1873-4, 271. Am'd. 1877-8, 82; 1880,91. Gal. Rep. Cit. 123, 679; 123, 680; 129, 458; 129, 459; 129. 460; 139, 335. ^-i.w § 461. Fraternal societies exempt from insurance laws. All associations or secret orders, and other benevolent §451 or fraternal coHDperative societies, incorporated or organ- Repl'd. ized for the purpose of mutual protection and relief of its -> d^o members, and for the payment of stipulated sums of money to its members, or to the family of deceased members, and not for profit, are declared not to be insurance com- panies in the sense and meaning of the insurance laws of this state, and are exempt from the provisions of all existin-g insurance laws of this state. En. Stats. 1873-4, 271. Am'd. 1877-8, 82. Rep. 1880, 92. En. Stats. 1885, 221. Ol, Rep. Cit. 121. 321; 133, 691. § 452. 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 suflScient 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 Ameri- can experience table of mortality, and interest at the rate of four and one-half per cent per annum. En. Stats. 1877-8, 83. Rep. 1880, 92. En. 1905, 571. See note to § 431, ante. CHAPTER rV. Nerw chapter added March 20, 1905. Stats. 1905, 411. MUTUAL BENEFIT AND LIFE ASSOCIATIONS. } 4S3a. Formatiofa of the association. 5 453. Levying of assessments. By-laws which may be made. § 452a. Formation of the association. Associations of not exceeding one thousand persons may be formed for the 140a CORPOHATIONS TO DISCOVER FlRil, ETC. f 4fi3 purpose of paying to the nominee of any member a smn, upon the death of the member, not exceeding three dollars for each member of the association. Such association may be formed by filing articles of incorporation in the office of the clerk of the county 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. Such articles must state the name of the corporation, its general purposes, its prin- cipal place of business, its term of existence, not exceeding fifty years, the names and residences of the directors se- lected 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. En. Stats. 1905, 411. The statute of 1873-4, page 745, as amended by the statutes of 1880, page 25, and 1901, page 6, relating to mutual benefit associations, is codified in the above section, and a new chapter, entitled "Mutual Benefit and Life Associations," is added, to consist of sections 452a and 453. — Code Commissioner's Note. § 453. Levying of assessments. By-laws which may be made. Each association provided for in this chapter may, on the death of a member, levy an assessment on the sur- vivin'g members of not exceed! n-g 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 associa- tion. The association may make such by-laws not incon- sistent 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; loan such funds as it may have on hand; and own sufficient real estate for its busi- ness purposes and such as it may be necessary to purchase on foreclosure of its mortgages. En. Stats. 19<^, 411. See note to § 452a, ante. CHAPTER V. New chapter acWed March 21, 1905. Stats. 1905, 571. CORPORATIONS TO DISCOVER FIRE AND SAVE PROPERTY AND HUMAN LIFE FROM DESTRUCTION THEREBY. § 453a. Powers of the corporation. § 453b. Rig-ht of way of corporation and its officers when running to fires. 5 453c. Yearly meeting of corporation, notice to be given thereof, an-J proceedings which may be authorized thereat. §§ 453a, 453b CORPORATIONS TO DISCOVER FIRE, ETC. 140b § 453a. Powers of the corporation. 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 officers, equipped with the necessary machinery and apparatus therefor, whose duty it is, so far as practicable, to discover and pre- vent fires and save property an-d human life from conflagra- tion; and for the effective discharge of such duties, author- ity 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 protect from conflagration or damage by water any property, during and Immediately after such fire. Nothing in this chapter must be so construed as in any degree to lessen, impair, or inter- fere with the powers, privileges, duties, or authority of tlie regular fire department of such municipality; nor can any act of such corps justify any owner of any building or property in abandoning such building or property. En. Stats. 1905, 571. The statnte of 1875-6, page 689, concerning the powers of underwriters, as amended by the statute of 1897, page 223, is codified in the sections above named, a new chapter being added, entitled "Corporations to Discover Fire, and to Save Property and Human Life Prom Destruc- tion Thereby," to consist of sectlona 453a, 453b, and 4:53c.— Code Com- misMsi oner's Note. § 453b. Right of way of corporation and its officers when running to fires. Such corporation, with its officers and eorps, when running to a fire with its horses, Tehlcles, 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 department of the municipality wherein such corporation is acting; but the rights of such fire department must always be paramount to the rights of such corporation. All ordinances now ex- istin-g or which may hereafter 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 busi- ness, 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 willfully or carelessly obstructing tbe progress of the apparatus of the fire department of 140c CORPORATIONS TO DISCOVER FIRiE, ETC. § 453c such city and county, or city or town, while going to a fire, or of any person or persons willfully or carelessly in- juring any animal or property of said fire department, are equally applicable to any person or persons willfully or carelessly obstructing the progress of the apparatus of such corporation while going to a fire, and to any person or persons who willfully or carelessly injures any animal or property of such corporation; and said laws and or- dinances, and their penalties, may be enforced in the same courts and in the same manner, and with equal force and effect, as in the case of the fire department. En. Stats. 1905, 572. See note to § 453a, ante. § 453c. Yearly meeting of corporation, notice to be given thereof, and proceedings which may be authorized thereat. In the month of July, in every year, there must be held a meeting of all corporations created for the purposes speci- fied in this chapter; of which ten days' previous notice must be inserted in at least one daily newspaper published in the municipality, where sai-d corporation is oi^anized or established, at which meeting each insurance company, corporation, association, underwriter, agent, person, or per- sons doing a fire insurance business in said municipality, whether members of said corporation or not, shall have a right to be represented, and shall be entitled to one vote. A majority of the whole number so represented has power to decide upon the question of sustaining the fire patrol organized by corporations 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 aggregate premiums returned as re- ceived, as provided in this section, and the whole of such amount, or so much thereof as may be necessary, may be assessed upon all insurance companies, corporations, asso- ciations, underwriters, agents, person, or persons who as- sume 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 such assessment is col- lectible by and in the name of said corporation, in any court of law in the State of California having jurisdiction, in such manner and at such time or times as said corpora- tion may determine. In order to provide for the payment of persons employed by said corporation, and to maintain § 453c CORPORATIONS TO DISCOVKR FiRii, ETC. l40d suitable rooms, and apparatus for saving life and property contemplated, said corporation is empowered to require a statement to be furnished, semi-annually, by all insurance companies, corporations, associations, underwriters, agents, or persons, of the aggregate amount of premiums received for insuring property in the municipality where said cor- poration is organized or established, 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 at- fecting such insurance in said municipality, and must be handed to the secretary of said corporation heretofore 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 com- pany, corporation, association, underwriter, agent, or per- son ^engaged in the business of fire insurance in the munic- ipality where said corporation is organized or established, the statement hereinbefore provided for. Such demand may be delivered personally at the oflice of such insurance company, corporation, association, underwriter, agent, or person within said municipality, and every officer if such insurance company, corporation, association, and every such underwriter, agent, or person, who, for fifteen days after said demand, neglects to render the statement herein provided for, forfeits fifty dollars for the use of said cor- poration, 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 additional 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 collected, with costs, in any court of law within the state of California having jurisdiction, by and in the name of said corpora- tion. En. Stats. 1905, 572. See note to § 453a, ante. ASSESSMENT INSURANCE. §§ 453d, 453e CHAPTER VL New (diapter added March 20, 1905. Stats. 1905, 418. tJFE, HEALTH. ACCIDENT, AND ANNUITY OR ENDOWMENT INSURANCE ON THE ASSESSMENT PLAN. § 453d. Contracts which may be mavie by, defined. § 453e. Formation of corporations; issuing of contracts; investments. § 453f. Pre-existing corporations, right of to reincorporate. § 453g, Contracts of insurance, contents and effect of. § 453h. Reserve and emergency fund. § 453i. Foreigrn corporations, conditions precedent to doia^ business in this state. § 453j. Limitations upon right to issue contracts of insurance. I 453k. Elxemptions from attachment and execution. § 45S1. Statements to be filed with the insiirance commissioner; pro- ceedings to be taken by him thereon. § 453m. LapMsing of policies when forbidden. § 453n. Pees and penalties. § 453o. Insurance commissioner to present bills for certain expenses. { 453p. Exemption of fraternal societies from this chapter. § 453d. Contracts which may 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 collec- tion 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 liabilities of the insured thereunder are not limited to fixed premiums. En. Stats. 1905, 418. The above sections are a codification of the statute of 1891, psige 12G, relating to life, health, accident, and annuity or endowment Insur- ance on the assessment plan. They are placed in a new chapter, en- titled "Life, Health, Accident and Annuity or Endowment Insurance on the Assessment Plan." — Code Commissioner's Note. S 453e. Formation of corporations; issuing of contracts; Investments. Corporations may be formed to carry on the business of mutual insurance upon the assessment plan, and are subject only to the provisions of this chapter. No Buch corporation must issue contracts of insurance until at least two hundred persons have applied, in writing, for membership or insurance therein, and have paid to the treasurer of such corporation the sum of five thousand dol- lars. This sum must be invested in bonds or securities, approved by the insurance commissioner of this state, or §§ 45af, «3g ASSESSMENT INSURANCE. MM deposited in some bank in this state where it will earn interest. Said bonds or securities, or evidences of sucli deposit, must be placed, through the insurance commis- sioner of this state, with the state treasurer, and the prin- cipal 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 de- posit for others of like value. Such corporation must also, as a condition precedent to issuing any contracts of insur- ance, obtain the written certificate of the insurance com- missioner 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 resembling another as to mislead the pub- lic. No corporation formed hereunder has legal existence after one year from the date of its articles, unless its organ- ization has been completed and business commenced; nor must any corporation or individual solicit, or cause to be solicited, any business, until such corporation has com- plied with the provisions of section six hundred and thirty- three of the Political Code. Nothing contained in this chapter shall be construed to exempt any corporation from the provisions of sections two hundred and ninety-six and two hundred and ninety-nine of this code. En, Stats. 1905, 418. See note to § 453d, ante. § 453f. Pre-existing corporations, right of to reincorpor- ate. Any existing corporation engaged in the business of life, health, accident, or endowment insurance on the as- sessment 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, powers, and privileges conferred by this chapter. En. Stats. 1905, 419. See note to § 453d, ante. § 453g. Contracts of insurance, contents and effect of. E^7ery contract of insurance issued by such corporation must specify the sum or sums to be paid upon the happen- ing of the contingency insured against, and when such pay- ments must be made. Unless the contract is invalidated by fraud or by breach of its conditions, the corporation is obligated to pay the beneficiary the amount or amounts I4bs ASSESSMENT INSURANCE. §§ 453h,-4RJi Specified in its contract at the time or times therein named, r.nd such indebtedness is a lien upon all the property of Buch corporation, with priority over all indebtedness there- after incurred, except as hereinafter provided in case of Insolvency. Failure to make such payment, within thirty days after notice, at the home ofllce, by mail, as provided by law, of a final judgment, unless waiver is made by the beneficiary, constitutes a forfeiture of the right to do busi- ness. En. Stats 1905, 419. See note to § 453d, ante. § 453h. Reserve and emergency fund. Every domestic corporation, organized to do or doing business of insur- ance 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. Such fund, to the extent of the largest amount contracted to be paid by any such corporation to any one person, must be in- vested and deposited, as provided in section four hundred and fifty-three e, with the right in the corporation to ex- change any such securities for others of equal value. The deposit required by section four hundred and fifty-three e constitutes a part of the reserve required by this section, at the option of such corporation. When any such corpora- tion discontinues business, this fund must be returned to. Buch corporation, or disposed of as may be determined by the superior court of the county in which is its principal place of business. En. Stats. 1905, 419. See note to § 453d, ante. § 453i. Foreign corporations, conditions precedent to do- ing business In tills state. Corporations organized under the laws of any other state or country to transact the busi- ness of mutual assessment insurance must, as a condition precedent to transacting business in this state, comply with the provisions of sections four hundred and five and four hundred and eight of this code, and deposit with the in- surance commissioner of this state a certified copy of its charter or other instrument required by its home au- thorities; a statement under oath, of its president or se- retary, of its business for the preceding year, in such form as may be required by the insurance commissioner of this state; an appointment of a general agent, service upon § 453j ASSESSMENT INSURANCK. UOh whom biiipy to be filed. § 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. Woofd, 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. Enumeration of powers. Every railroad cor- §465 poration has power: Am'd. ^ A'^'^ 1. To survey road. To cause such examination and surveys to be made as may be necessary to the selection of the most advantageous route for the railroad: and for such purposes their oflacers, 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. May accept real estate. To receive, hold, take and convey, 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. May acquire real estate. To purchase, or by volun- tary grants or donations to receive, enter, take possession • of, hold and use all such real estate and other property as may he absolutely necessary for the construction and main- tenance of such railroad, and for all stations, depots and other purposes necessary to successfully work and conduct the business of the road; 4. Lay out road, how wide. To lay out its road, not exceeding nine rods wide, and to construct and maintain the same, with a single or double track, and with such ap- pendages and adjuncts as may be necessary for the con- venient use of the same; 6. Where may construct road. To construct their roads across, along or upon any stream of water, watercourse, roadstead, bay, navigable stream, street, avenue or high- way, 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 14S ieNtJliEllAl*ION OF I»OWBflS. § 4feb intersected to its former state of usefulness as near as may be, or so tliat the railroad shall not unnecessarily impair its usefulness or injure its franchise; 6. May cross or connect roads. To cross, intersect, join, or unite its railroad with any other railroad, either before or a^er 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 intersections and connections, and grant facilities therefor; and if the two corporations cannot agree upon the amount of compensation to be made thereof, or the points or the manner of such crossings, intersections and connections, the s!ame shall be ascertained and determined as is pro- vided in title VII, part III, Code of Civil Procedure (sees. 1237-1263) ; 7. May purchase land, timber, stone, gravel, etc. To purchase lands, timher, stone, gravel or other materials to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts, or acquire them in the manner provided in title VII, part III, 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 hereinafter; but no such change must vary the general route of such road, as contemplated in its articles of incorporation; 8. Carry persons and freight. To carry persons and property on their railroad, and to receive tolls oi com- pensation therefor ; 9. Erect necessary buildings. To erect and maintain all necessary and convenient buildings, stations, depots, fixtures and machinery for the accommodation and use of their passengers, freight and business; 10. Regulate time and freights, subject to legislation. To regulate the time and manner in which passengers and property shall be transported, and the tolls and compen- sation to be paid therefor within the limits prescribed by law and subject to alteration, change or amendment by the legislature at any time; 11. Regulate force and speed. To regulate the force and speed of their locomotives, cars, trains or other Civil Code— 10 § 465a ENUMERATION OF POWERS. 146 machinery used and employed on their road, and to estab- lish, execute and enforce all needful and proper rules and regulations for the management of its business transac- tions usual and proper for railroad corporations; 12. Purchasing or acquiring franchises of other rail- roads. To purchase, lease or acquire the franchises, rights and property, or any part thereof, of any railroad cor- poration, leasing or owning any railroad outside of the state of California, and to operate the same, aiu1 to use the franchises of any such road, and to build and operate extensions thereof; provided that nothing herein shall authorize any corporation to purchase the; franchises, rights and property of any railroad operated in competi- tion with it; and to purchase, acquire and held the stocks, bonds or other securities of any railroad corporation or- ganized 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 authorize any corporation to purchase the stock of anv railroad corporation operated in competition with it. En. March 21, 1872. Am'd. 1903, 245. Cal. Rep. Cit. 67, 432; 92, 645; 111, 227. Subd. 1—67, 431; 129, 10; 134, 415. Subd. 2—129. 10. Subd. 8—53, 227; 129, 10. Subd. 4—53, 227; 67, 431; 134. 415. Subd. 5— 69, 206; 92, 645; 93, 265; 142, 392. Subd. 6—91, 452. Subd. 7—53, 228; 67, 431; 134, 414. Subd. 8—142, 392. Subd. 9—142, 392. Subd. 11—142, 392. Exceeding limit upon power to acquire realty: See ante, sec. 360. Eminent domain: See Code Civ. Proc, sees. 1237-1263. Subd. 8. Rates of charges: See post, sec. 489. Estab- lishment of rates by railroad commissioners: See Const. Cal., art. Xn, sec. 22. Subd. 10. Regulating time and manner of transporta- tion, timetables of starting: See post, sec. 481. § 465a. What motive power may be used; authority must be obtained. Every person or corporation 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 railroad or upon any portion thereof. In incorporated cities, towns, or cities and counties having more than five thousand In- habitants, authority must be obtained from the legislative authority thereof. En. Stats. 1905, 574. This section is a, codiflcntlcn of the statute of 1893, page 208, relating to the operation of railroads. — Code Commissioner's Note. 147 ENUMERATION OP POWERS. §§ 466-468 § 466. Map and profile to be filed. Every railroad cor- poration in this state must, within a reasonable time after its road is finally located, cause to be made a map and profile thereof, and of the land acquired for the use thereof, and the boundaries of the several counties through which the road may run, and file the same in the office of the secretary of state; and also like maps of the parts thereof located in different counties, and file the same 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 the chief engineer, the acting president and secretary of such company, and copies of the same, so certified and filed, be kept in the office of the secretary of the corporation, subject to examination by all parties interested. En. March 21, 1872. Cal. Rep. Cit. 67, 432. § 467. May change line 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 provided in subdivision 7, section 465, alter or change the same, and cause new maps and profiles to be filed, showing such changes, in the same offices where the originals are of [on] file, and may proceed in the same manner as the original location was acquired, to acquire and take possession of such new line, and must sell or relinquish the lands owned by them for the original location, within five years after such change. No new location as herein provided must be so run as to avoid any points named in iLsir articles of incorporation. En. March 21, 1872. Changing location: See, ante, sec. 465, subd. 7. § 468. Construction must be commenced and continued; operation. Every railroad corporation must, within two years after filing its original articles of incorporation, be- gin the construction of its road, and must every year there- after complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to ex- tend its road beyond the point then completed is forfeited. After the completion of any railroad, or any part thereof, capable of being operated, its owner must operate it, and upon his failure to keep it, or any part thereof, in full oper- S 469 ENUMERATION OF POWERS. i4i; ation for the period of six months, his right to operate it in whole or in part, as the case may be, is forfeited, and the lands occupied for the purposes of the road, so far as the same is not operated, revert to the original owners or their successors in interest. A railroad is in full operation when one passenger train, or one mixed, is run over it once a day in each direction and a sufficient number of freight trains to accommodate the traffic on the road. If a railroad, is wholly constructed at an elevation of five thousand feet or more above the level of the sea, its owner is not required to maintain and operate it, nor to run passenger or other trains thereon, between the fifteenth of October of any year and the fifteenth of May of the year following. This sec- tion must not be construed to require the operation of a road when prevented by the act of God, nor when the opera- tion of the road, together with its branch and trunk lines, does not yield income sufficient to defray the expenses of maintaining and operating it in connection with its branch and trunk lines. The railroad commissioners have the power to examine and determine whether a railroad, to- gether with its branch and trunk lines, yields income suffi- cient to operate the same. En. March 21, 1872. Am'd. 1905, 574. The amendment consists In codifying and adding to the sectlwi the prorisions of the statute of 1880, page 43, to compel the operation of railroads, and of the statute of 1897, page 5, to provide for the man- agement and operation of railroads above certain elevations. — Cod^ Commissioner's Note. Cal. Rep. Git. 92, 646. Organizing and commencing work: See general provi- sion, ante, sec. 358. Act enabling railroad companies to complete railroads: See post, Appendix, title Railroads. § 469. Crossings and intersections. Condemnation. 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 ENUMERATION OF POWERS. §§ 470-47?. 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 VII, part III, Code of Civil E^rocedure, and the damages assessed and the right of way granted as in other cases. En. March 21, 1872. Right of eminent domain: Code Civ. Proc, sees. 1237- 1263. Crossings and intersections: See ante, sec. 465, subd. 6. § 470. Not to use streets, alleys, or water in cities or towns, except by a two-third vote of the city or town- authorities. No railroad corporation 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-thirds vote of the town or city authority from which the right must emanate. En. March 21, 1872. Col. Rep. Cit 69, 206; 92, 645; 105, 94; 109, 319. I 471. Railroads through cities not to charge fare to and from points therein. (Repealed.) En. March 21, 1872. Ajn'd. 1875-6, 76. Rep. 1877-8, 84. § 472. When crossing railroads op 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 em- bankment or cutting necessitates a change in the line of such railroad or highway, the corporation may take such additional lands and material as are necessarj^ for the construction 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 VII, part 111. Code of Civil Procedure; and when compensation is* made therefor, the same becomes the property of the corporation. En. March 21, 1872. § 473. Corporations may consolidate. Publication of notice. Copy to be filed. Any railroad corixDration incor- porated under the laws of this state may consolidate 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, lia- bilities and assets of every kind and description, upon § 473 ENUMERATION OF POWERS. 150 such terms and in such manner as may be agreed upon by their respective boards or directors; provided, no sucti consolidation shall take effect until the same shall have been ratified and confirmed in writing by stockholders ot the respective corporations representing three-fourths ot the subscribed capital stock of their respective corpora- tions. In case of such .consolidation "articles of incor- poration and consolidation" must be prepared, setting forth: First, the name of the new corporation; second, the purpose for which it is formed; third, the place where its principal business is to be transacted; fourth, the term for which it is to exist, which shall not exceed fifty years; fifth, the number of its directors (which shall not be less than five or more than thirteen) and the names and resi- dences of the persons appointed to act as such until their successors are elected and qualified; sixth, the anioant of its capital stock (which shall not exceed the amount ac- tually required for the purposes of the new corporation, as estimated by competent engineers), and the number of shares into which it is divided; seventh, the amount of stock actually subscribed, and by whom; eighth, the term- ini of its road or roads and branches; ninth, the estimated len^gth of its roads or roads and branches; tenth, the names of the constituent corporations, and the terms and con- ditions of consolidation in full. Said articles of incor- poration and consolidation must be signed and counter- signed by the presidents and secretaries of the several constituent corporations and sealed with their corporate seals. There must be annexed thereto memoranda of the ratification and confirmation thereof by the stock- holders of each constituent corporation, which must be respectively signed by stockholders representing at least three-fourths of the capital stock of their respective cor- porations. When completed as aforesaid said articles must be filed in the office of the county clerk of the county in which the original articles of incorporation of either of the consolidating corporations are filed, and 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 151 ENUMERATION OF POWERS. $S 47'ia, 474 in action of every 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. Said consolidated or new corporation must also, in all courts and places, be deemed and held to have become subrogated to its several con- stituents 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, to any persons, corporations, or bodies politic, whomsoever, 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 mi-ght have been sued at law or in equity had no such consolida- tion 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 con- solidated corporation, and satisfaction 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 out of any other property belong- ing to the consolidated corporation. En. March 21, 1872. Am'd. 1900-01, 327. Cal. Rep. Cit. 67, 61; 76, 405; 76, 407; 98, 216; 109, 577; 109, 583; 109, 584; 109, 586; 109, 593; 109, 601; 110, 504; 119, 343; 147, 666. § 473a. Right to lease or use another road In common. Railroad corporations doing business in this state and or- ganized 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 part of its railroad, or may acquire of the other the right to use, in common with it, the whole or any part of its railroad. En. Stats. 1905, 575. Section 2 of the statute of 1880, page 21, authorizing railway and other corporations organized under the laws of this state or of any state or territory of the United States to do business in this state, on equal terms, is codified in this section.— Code Commissioner's Note. § 474. State lands granted for use of corporations. There is granted to every railroad corporation the right of way for the location, construction and maintenance of their §§ 475-478 KNtlMEKATlON OF POWERS. U2 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. En. March 21, 1872. § 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. En. March 21, 1872. § 476. Wood, stone, and earth may be taken from state lands. The right to take from any of the lands belonging to the state, adja-cent to the works of the corporation, all materials, such as wood, stone, and earth, naturally appurtenant thereto, which may be necessary and con- venient for the original construction of its works and adjuncts, is granted to such corporations. En. March 21, 1872. § 477. Lands to revert to state, when. If any corpora- tion receiving state lands or appurtenances thereunder is dissolved, ceases to exist, is discontinued, or the route or line of 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. En. March 21, 1872. § 478. Selections made, how proved and certified 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, comptroller of state, and recorder of the county in which the selected lands are situate, a plat of the lands so selected giving the extent thereof and uses for which the same is claimed or desired, duly verified to be correct; and, if approved, the surveyor general must so indorse the plat, and issue to the corpora- tion a permit to use the same, unless on petition properly presented to the court, a review is had and such use prohibited. En. March 21, 1872. Cal. Rep. Cit. 101, 386. BUSINESS, HOW CONDUCTED. S§ 479, m CHAPTER III. BUSINESS. HOW CONDUCTED. I 479. Checks to be affixed to all baggage. Damages. § 430. Annual report to be verified. Form of report. § 4S1. Duties of corporation. § 4S2. Corporation to pay damage* for refusal. 8 483. Furnish room inside passenger cars, and be responsible for dam- ages occurring on freight and other cars. § 484. Corporations to post printed regulations, and not responsible for damages in violation of rules. § 485. Fences. To pay damages. Not liable in oertain cases. Corpo- ration may recover damages, when. § 486. Regulations of traims. Penalty. § 487. Passenger refusing to pay far«. § 488. Officers to wear badge. § 489. Rates of charges. § 490. Passenger tickets, how issued, and to b« good for six monthi. § 491. Character of rails to be used. 5 492. Elevated or underground railways. § 493. To apply to all railroad companies. § 494. Sale of property to another railroavl. § 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 duplicate thereof given to the passenger or person delivering the Bame in his behalf; and if such check Is refused on de- mand, 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 bag-gage is not delivered to him by the agent or employee of the rail- road corporation, he may recover the value thereof from the corporation. En. March 21, 1872. Cal. Rep. Cit. 120, 317. § 480. Annual report to be verified. Form 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 5 481 BUSINESS, HOW CONDUCTED. 154 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; 4. The amount received from the transportation of pas- sengers, 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, build- ings, 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. En. March 21, 1872. § 481. Duties of corporation. Every such corporation must start and run its cars, for the transportation of per- sons and property, at such regular times as it shall fix by public notice, and must furnish sufficient accommodations for the transportation of all such passengers and property 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 pas- sengers and freight; and must take, transport, and dis- charge such passengers and property at, from, and to such places, on the due payment of tolls, freight, or fare there- for. En. March 21, 1872. Am'd. 1905, 575. The amendment consists In the substitution of the word "Its" for "their," and the substitution of "It" for "they," thui correcting errors of grammer.— Code Commissioner's Nota. Cal. Rep. Cit 134, 414; 142, 892. Rules and regulations: See post, sec. 484. tt6 fitJSiNE^S, HOW CONDUCTED. §§ 482-4s4 Act compelling railroads to operate roads: See post, Ap- pendix, title Railroads. Act exempting railroad constructed at elevation of five thousand feet from operating roads at certain times: See post, Appendix, title Railroads. Act organizing railroad commissioners and defining pow- ers: See post; Appendix, title Railroads. § 482. Corporation to pay damages far 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 sustained thereby, with costs of suit. En. March 21, 1872. Cal. Rep. Cit. 142, 392. § 483. Furnish room inside passenger cars, and be re- sponsible for damages occurring on freight and other cars. Every railroad corporation must furnish, on the inside of its .passenger cars, suflicient room and accommodations for all passengers to whom tickets 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 passengers on pas- senger cars. En. March 21, 1872. IK Cal. Rep. Cit. 70, 173. ^R Accommodations to be furnished: See ante, sec. 481. '^■* § 484. Corporations to post printed regulations, and not responsible for damages in violation of rules. Every railroad corporation must have printed and conspicuously posted on the inside of its passenger cars its rules and regulations regarding fare and conduct of its passengers; and in case any passenger is injured on or from the plat- form of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of positive verbal instructions or injunctions given to such passenger in person by any oflicer of the train, the cor- poration is not responsible for damages for such injuries, unless the corporation failed to comply with the provisions of the preceding section. . En. March 21, 1872. ^ Cal. Rep. Cit. 78, 364; 87, 73. lb |§ 485, 486 BUSINESS, UOW CONDUCTED. 156 Rules and regulations by carriers of passengers, gener- ally: See, post, sec. 2186. § 485, Fences. 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 engines or cars shall kill or maim any catue or other do- mestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic animals a fair market price for the same, unless It occurred through the neglect or fault of the owner of the animal so killed or maimed. 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 aris- ing out of the killing or maiming any animals of persons who thus fail to construct and maintain such fence; and the owners of such animals are responsible for any dam- ages or loss which may accrue to such corporation from such animals being upon their railroad track, resulting from the nonconstruction of such fence, unless it is shown that such loss or damage occurred through the negligence or fault of the corporation, its officers, agents, or em- nloyees. En. March 21, 1872. Cal. Rep. Cit. 64, 113; 65, 318; 86, 284; 94, 570; 104, 28; 110, 456; 114, 508; 126, 518; 126, 573; 142, 289. I 486. Regulations of trains. Penalty. A bell, of at least twenty pounds' weight, must be placed on each loco- motive 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 crossed such street, road, or highway; or a steam- whistle must be attached, and be sounded, except in cities, at the like dis- tance, and be kept sounding at intervals until it has crossed the sa,me, under a penalty of one hundred dollars for every neglect, to be paid by the corporation operating the railroad, which may be recovered in an action prose- cuted by the district attorney of the proper county, for the use of the state. The corporation is also lia^la for all 157 BUSINESS. HOW CONDUCTED. §5 487-48'j damages sustained by any person, and caused by its loco- motives, train, or cars, when the provisions of this sec- tion are not complied with. En. March 21, 1872. Cal. Rep. Cit 52, 604; 61, 328; 85, 296; 86, 378; 98, 311; 122, 567; 132, 256; 147, 627. Omitting to ring the bell, a misdemeanor: Pen. Code, sec. 390. 5 487. Passenger refusing to pay 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 baggage out of the cars, using no unnecessary force, at any usual stopping-place, or near any dwelling-house, on stopping the train. En. March 21, 1872. Cal. Rep. Cit. 65, 628; 97, 5; 145, 452. Refusing to pay fare: See, generally, post, sees. 2187 et seq. § 488. Officers to wear badge, liz-very conductor, bag- gage-master, engineer, brakeman, 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 office or station, and the In- itial letters of the name of the corporation by which he is employed. No collector 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 inter- fere with any passenger or property. En. March 21, 1872. Cal. Rep. Cit. 109, 104. 5 489. Rates of charges. Whenever the board of rail- road commissioners, in the discharge of its duties, es- tablishes 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 § M nVSlKms, HOW CONDtKSCKD. ISt corporation affected thereby; and upon such service it is the duty of such person, copartnership, company, or cor- poration 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 during usual business hours. Said board must also make such further publication thereof as it deems proper and necessary for the public good. If the party to be served is a corporation, such service may be made upon the pres- ident, vice-president, secretary, or managing agent there- of, and if a copartnership, upon any partner thereof. The rates of charges established 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. En. March 21, 1872. Am'd. 1905, 575. Sftction 11 of the statute of 1880, page 47, defining- the powers of the board of railroad commissioners, is substituted in place of the pres- ent section 489. The section has been inoperative since tiie adoption of the Constitution of 1879.— Code Commissioner's Note. Cal. Rep. Cit. 105, 545; 105, 546; 105, 547; 105, 548; 105, 549; 105, 555. Asking or receiving illegal fare a misdemeanor; Pen. Code, sec. 525. Rates of dtiarges on street railroads: Post, sec. 501. Power of railroad corporations to charge tolls or com- pensation: Sec. 465, subd. 8. § 490. Passenger tickets, how issued, and to be good for six months. Every railroad corporation must provide, and on being tendered the fare therefor fixed, as provided in the preceding 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 pro- vided 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 intermediate station, and from any intermediate station to the depot of destination desig- nated in the ticket, at any time within six months there- after. Any corporation failing so to provide and furnish 159 BUSINESS, HOW CONDUCTED. §§ 491-493 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 ex- pended in recovering same. En. March 21, 1872. Am'd. 1900-01, 600. Cal. Rep. Cit. 105, 537; 105, 540; 105, 542; 105, 543; 105, 544; 105, 545; 105, 546; 105, 547; 105, 548; 105,549; 105,550; 105,551; 105,552; 105,553; 105, 554; 105, 555; 105, 556; 132, 411; 132, 413; 132, 416; 132, 418; 132, 420; 144, 188. § 491. Character of rails to be used. All railroads, other than street railroads and those used exclusively for carrying freight or for mining purposes, built by corpora- tions 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. En. March 21, 1872. Am'd. 1873-4, 212. Cal. Rep. Cit. 132, 678. § 492. Elevated or underground railways. The legis- lative or other body to whom is intrusted the government of the county, city and county, city, or town, under such regulations, restrictions, and limitations, and upon such terms and payment of license tax as the county, city and county, city, or town authority may provide, may grant franchises for the construction of elevated or underground railroad tracks over, across, or under the streets and pub- lic highways of any such county, city and county, city, or town, for the term not exceeding fifty years; provided, th'at before granting such franchise there shall be pre- sented to such legislative or other body a petition signed by the owners of a majority of the landed property, other than public property, on the line of said elevated portion applied for. En. Stats. 1895, 242. § 493. To apply to ail railroad companies. The pro- visions of section four hundred and ninety-two shall apply to any railway corpomtion heretofore or hereafter incor- porated. En. Stats. 1895, 242. Am'd. 1905, 576. The change consists in the substitution of the words "section four hun- dred and ninety-two" in place of "act."— Cade Commissioner's Note. The section 492 referresd to in this section provided for the srranting of franchises to construct elevated or undergrround roads. I 4d4 BUSINESS, HOW CONDUCTED. ISO § 494. Sale of property to another railroad. Any rail- road corporation, person or persons, firm or corporation, owning any railroad in this state, may sell, convey, and transfer 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 su-ch railroad corporation receiving such conveyance may hold and oper- ate such railroad franchises and property within this state, build and operate extensions and branches thereof, and thereunto exercise 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 corpora- tion were organized under the law3 of this state; provided, thet before such sale, conveyance, or transfer shall be- come operative, an agreement in writing must be executed by the parties thereto, containing the terms and conditions of tiie purchase and sale, and its execution must be author- ized by the board of directors 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 provided further, that no sale, conveyance, or transfer un- der this act shall relieve the franchise or property sold, conveyed, or transferred, from the liability of the grantor contracted or incurred in the operation, use, or enjoyment of such franchise or any of its privileges; provided, that this section shall not authorize any corporation to pur- chase any railroad property operated in competition with it; and provided further, that any or all established rates for fares and tolls for carrying passengers or freight be- tween 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 pro- vided further, that whenever a railroad corporation, which has purchased any line of road under this act, shall for the purposes 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 provided further, that for every violation of the provisions of this act on the part of direc- HI BUSINESS, HOW CONDUCTED, § 494 tors 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 Califor- nia against such' company in the courts of the state. All money so collected shall be paid into the general fund of this state. En. Stats. 1903, 50. This was a new section adopted in 1903. There was an- other section 494 adopted in 1899 covering the same ground. This earlier section, statutes 1899, 178, was re- pealed. Statutes 1905, 576. Tn 1889 a section relating lo the sale of railroads was added to the Code, and numbered 494. In 1903 a new section was added, also num- bered *94, and clearly Intended to supersede the old section 494. A.c- oordingly, it is thought advisable to repeal the earlier section.— Code Commissioner's Note. avU Code-U J 437 STREET RAILROAD CORPORATIONS. U2 TITLE IV. STREET RAILROAD CORPORATIONS. § 497. Authority to lay street railroad track, how obtained. Lhnlta- tations and restrictions. § 498. Restrictions tnd limitations. Manner of constructing tracks. § 499. Two corporations may use the same track. § 500. Crossing tracks. Obstructions. I 501. Rates of fare, speed, etc. § 502. Time allowed for commencing and completing work. Penalty. Extension of time. 5 503. May make further regulations and rules. § 504. Penalty for overcharging. § 505. To provide and furnish passenger tickets. Penalty. I 506. Proof of agency. § 507. Reserved rights. § 508. License to be paid to city or town. § 509. Track for grading purposes. § 510. Provisions of title III applicable to street railroads. § 511. Title applicable to natural persons alike with corporatlona. § 497. Authority to lay street railroad track, how ob- tained. Limitations and restrictions. Authority to lay railroad tracks through the streets and public highways of any incorporated 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 tne 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. 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, 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. En. March 21, 1872. Am'd. 1875-6, 76; 1891, 12. CaL Rep. Clt. 57, 167; 57, 175; 57, 176; 90, 38; 90, 39; 91, 340; 91, 454; 105, 92; 105, 93; 105, 94; 117, 611; 117, 616; 142, 228. Act limiting time within which franchise may be granted: See post. Appendix, title Railroads. 163 STREET RAILROAD CORPORATIONS. §§ 498-500 Act validating ordinance granting franchise: See post. Appendix, title Railroads. Act empowering railroad to use electricity or steam: See post, Appendix, title Railroads. § 498. Restrictions and limitations. Manner of con- structing tracks. The city or town authorities, in grant- ing the right of way to street railroad corporations, in ad- dition to the restrictions which they are authorized to im- pose, 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: First, 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. Second, to plank, pave, or macadamize the entire length of the street used by their track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and with good crossings. Third, that the tracks must not be more than five feet wide within the rails, and must have a space between them sufficient to allow the cars to pass each other freely. En. March 21, 1872. Am'd. 1873-4, 212; 1875-6, 77. Cal. Rep. Cit. 57, 518; 87, 599; 89, 309; 91, 454; 146, 638. § 499. Two corporations may use the same track. Two lines of street, railway, operated under different manage- ments, may be' permitted to use the same street, each pay- ing an equal portion for the construction of the tracks and appurtenances used by said railways jointly; but in no case must two lines of street railway, operated under different managements, occupy and use the same street or tracks for a distance of more than five blocks consecutively. En. March 21, 1872. Am'd. 1891, 13. Cal. Rep. Cit. 54, 74; 54, 75; 57, 168; 57, 170; 57, 177; 91, 452; 91, 454; 115, 297; 129, 182; 135, 659. § 500. Crossing tracks. Obstructions. Any proposed railroad track may be pf^rmitted to cross any track already constructed, the crossing being made as provided in chap- ter II, title in, of this part. In laying down the track and |§ 501. 502 STREET RAILHOAD CORPORATIONS. 164 preparing therefor, not more than one block must be ob- structed at any one time, nor for a longer period than ten working days. En. March 21, 1872. Crossing other railroads: See ante, sees. 465 et seq. § 501. Rates of fare, speed, etc. The rates of fare on the cars must not exceed ten cents for one fare for any distance under three miles, and in municipal corporations of the first class must not exceed five cents for each pas- senger 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 must be of the most approved construction for the comfort and convenience of passengers, and provided with brakes to stop the same, when required. A violation of the provisions of this sec- tion subjects the corporation to a fine of one hundred dollare for each offense. En. March 21, 1872. Am'd. 1903, 172. Cal. Rep. Cit. 97, 563; 134, 485. Ra-tes of fare for railroad corporations: See sec. 489. Act limiting and fixing rates of fares: See post. Appen- dix, title Railroads. Act permitting letter carriers to ride free: See post. Ap- pendix, title Railroads. § 502. Time allowed for commencing and completing work. Penalty. Extension of time. Work to construct the railroad must be commenced in good faith within not moro 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 govern- ing body of such municipal corporation at the time of granting said right of way shall have the power to fix the time for either the commencing or completion, or both, ot said work; not, however, to a time less than six months for commencing, and not less than eighteen months for com- pleting the same. 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 168 STREET RAILROAD CORPORATIONS. §§ 503-506 writing. The authority granting the right of way shall have the power to grant an extension of time for the com- pletion of said work, if it appear that the work has been commenced within the time fixed, and prosecuted in good faith; but no extension of time shall be granted for the commencement of said work, and shall not be granted for more than one year for the completion of the same. All extensions of time shall be in writing, and made a matter of record in the municipality. Provided further, that this act shall not in any way affect any franchise or right of way granted before its passage. En. March 21, 1872. Am'd. 1895, 17. Cal. Rep. Cit. 57, 178; 91, 341; 101, 337; 117, 611; 117, 612; 117, 616. Forfeiture for failure to commence work, of railroad corporations: See sec. 468; generally, see sec. 358. § 503. May make further regulations and rules. Cities and towns in or through which street railroads run may make such further regulations for the government of such street railroads as may be necessary to a full enjoyment of the franchise and the enforcement of the conditions pro- vided herein. En. March 21, 1872. Cal. Rep. Cit. 128, 436. § 504. Penalty for overcharging. Any corporation, or agent or employee thereof, dem^anding or charging a greater sum of money for fare on the oars of such street 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. En. March 21, 1872. § 505. To provide and furnish passenger tickets. Pen- alty. 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. Any corporation failing to provide and furnish tickets or checks to any person desir- ing to purchase the same at not exceeding the rate herein- before described, shall forfeit to such person the sum of two hundred dollars, to be recovered as provided in the preceding section; provided, that the provisions of this section shall not apply to such street railroad corpora- §8 506-609 STREEl? IlAILftOA£) CORPORATIONS. 166 tions as charge but five cents fare. En. March 21, 1872. Am'd. 1873-4, 213; 1883, 84. § 5Q6. 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 receiv- ing 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 em- ployee of the corporation, to receive the money and give the ticket or check mentioned. En. March 21, 1872. Am'd. 1878-4, 213. § 507. Reserved rights. In every grant to construct street railroads, the right to grade, sewer, pave, macadam- ize, or otherwise improve, alter, or repair the streets or highways, is reserved to the corporation, and cannot be alienated or impaired; such work to be done so as to ob- struct the railroad as little as possible, and, if required, the corporation must shift its rails so as to avoid the ob- structions made thereby. En. March 21, 1872. Am'd. 1873-4, 214. § 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. En. March 21, 1872. Licenses: See Pol. Code, sees. 3356 et seq. § 509. Track for grading purposes. The right to lay down a track for grading purposes, and maintain the same for a period not to exceed three years, may be granted by the corporate authorities of any city or town, or city and county, or supervisors of any city or county, but no such track must remain more than three years upon any one 167 STREET RAILROAD CORPORATIONS. §§ 510, 511 street; and it must be laid level with the street, ^and must he operated under such restrictions as not to interfere with. the use of the street oy the public. The corporate author- ities of any city or town, or city and county, may grant the right to use steam or any other motive power in propelling the cars used on such grading track, when public conveni- ence 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. En. March 21, 1872. § 510. Provisions of title III applicable to street rail- roads. Street railroads are governed by the provisions of title III of this part, so far as they are applicable, unless such railroads are therein specially excepted. En. March 21, 1872. Am'd. 1873-4, 214. Cal. Rep. Cit. 109, 577; 109, 583; 109, 584; 125, 454. Title III: See sees. 454 et seq. § 511. Title applicable to natural persons alike with cor- porations. 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 applicable to cor- porations. En. March 21, 1872. Cal. Rep. Cit. 98, 314; 132, 678. §§ 512, 513 WAGON ROAD CORPORATIONS. lU TITLE V. WAGON ROAD CORPORATIONS. § 512. Tbree commissioners to act with surveyor. § 513. Survey and map to be filed and approved by supervisors, § 514. Tolls, etc., to be collected. Penalty for taking unlawful tons. § 515. No tolls to be charged on highways or public roads. § 516. Rates of toll to be posted at gate. § 517. Toll gatherer may detain persons until they pay toll. § 518. Toll gatherer not to detain any person unnecessarily. § 519. Persons avoiding tolls to pay five dollars. § 520. Penalties for trespasses on property of corporation. § 521. Revenue, how appropriated. Tolls to be reduced, etc § 522. May mortgage and hypothecate corporate property. § 523. This title applies to natural persons as well as corporatioms. § 524. Franchises for construction of roads for horses or vehicles. § 512. Three commissioners to act witli surveyor. Where a corporation is formed for the construction and maintenance of a wagon road, the road must be laid out as follows: Three commissioners must act in conjunction with the surveyor of the corporation, two to be appointed by the board of supervisors of the county through which the road is to run, and one by the corporation, who must lay out the proposed road and report their proceedings, together with the map of the road to the supervisors, as provided in the succeedir^ section. En. March 21, 1872. Am'd. 1873-4, 214. Cal. Rep. Cit. 95, 86. Wagon road corporation: See ante, sees. 291-294. § 513. Survey and map to be filed and approved by su- pervisors. When the route is surveyed, a map thereof must be submitted to and filed with the board of supervis- ors 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 hundred feet, and the supervisors must either approve or reject the survey. If approved, it must be entered of record on the journals of the board and such approval au- thorizes 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 corpo- ration must so change and open the highway so taken and used as to make the same as good as before the appro- priation thereof; and must so construct all crossings of 169 WAGON ROAD CORPORATIONS. §§ 514-516 public highways over and by its road, and its toll gates, as not to hinder or obstruct the use of the same. EJn. March 21, 1872. Am'd. 1905, 557. § 514. Toffs, etc., to be coffected. Penafty for taking un- fawfuf toffs. All wagon road corporations may bridge or keep ferries on streams on the line of their road, and must do all things necessary to keep the same in repair. They may take such tolls only on their roads, ferries, or bridges, as are fixed by the board of supervisors of the proper county through which the road passes, or in which the ferry or bridge is situate. But in no case must the tolls be more than suflicient 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. If tolls, other than as herein provided, are charged or demanded, the corpora- tion forfeits its franchise, and must pay to the party so charged one hundred dollars as liquidated damages. En. March 21, 1872. Am'd. 1873-4, 214; 1873-4. 272; 1905. 577. Cal. Rep. Cit. 88, 633. This section was also amended by act of March 30, 1874. Amendments 1873-4, p. 214; but by section 287 of that act, p. 269, other laws passed at that session superseded the provisions of that act. leaving the preceding act of March 28, 1874, in force sixty days after its passage. Sale of franchise under execution: See ante, 388. Toll roads: Pol. Code, sees. 2779 et seq. § 515, No tolfs to be charged on highways or pubfic 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 teamsters, travelers, drovers, or anyone transporting property over the same. En. March 21, 1872. § 516. Rates of toff to be posted at gate. The corpora- 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 is5 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 rateB of tolls levied and demanded. Failure to comply with the provi- §§ 517-520 WAGON ROAD CORPORATIONS. 17<> sions of this act shall work an immediate forfeiture of franchise. En. March 21, 1872. Am'd. 1900-01, 5. § 517. Toll gatherer may detain persons until they pay toll. Each toll gatherer may prevent from passing through his gate any person, animal, or vehicle, suhject to toll. until the toll authorized to be collected for such passing has been paid. En. March 21, 1872. Am'd. 1905, 577. The section as It now stands authorizes the toll gratherer to prevent from passing through his gate persons leading or driving animals or vehicles subject to toll. The form of the section has been changed to express what was \ioubtless originally intended by th*» legislature.— Code Commissioner's Note. § 518. Toll gatherer not to detain any person unneces- sarily. Every toll gatherer who, at any gate, unreason- a'bly 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 authorized to collect, for each offense forfeits the sum of twenty-five dol- lars to the person aggrieved. En. March 21, 1872. Am'd. 1905, 578. The change consists tn the Insertion of the words "or any vehicle or anlnaal" after "passenger." — Code Commissioner's Note, § 519. Persons avoiding tolls to pay five dollars. Every person who, to avoid the payTnent of the legal toll, with his team, vehicle, or horse, turns out of a wagon, turnpike, or plank road, or passes any gate thereon or ground adja- cent thereto, and again enters upon such road for, each of- fense forfeits the sum of five dollars to the corporation Injured. En. March 21, 1872. § 520. Penalties for trespasses on property of corpora- tion. Every person who: 1. Willfully breaks, cuts down, defaces, or injures any milestone or post on any wagon, turnpike, or plank road; or, 2. Willfully breaks or throws down any gate on such road; or, 3. Digs up or injures any part of such road, or anything thereunto belonging; or, 4. Forcibly or fraudulently passes any gate thereon without having paid the legal toll; For eaoh offense forfeits to the corporation injured the sum of twenty-flve dollars. In addition to the damages re- sulting from his wrongful act. En. March 21, 1872. r WAGON ROAD CORPORATIONS. §§ 5a-524 § 521. Revenue, how appropriated. Tolls to be reduced, etc. The entire revenue derived from the road shall be appropriated: first, to repayment to the corporation of the costs of its construction, together with the incidental ex- penses 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 construction is completed, the tolls must be so reduced as to raise no more than an amount suflacient to pay said dividend, and incidental expenses, and to keep the road in good repair. En. March 21. 1872. Am'd. 1873-4, 215. § 522. May mortgage and hypothecate corporate prop- erty. 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 construction of the road and appurtenances, and then only after an affirmative vote of two-thirds of the capital stock subscribed. En. March 21, 1872. Am'd. 1905, ^78. Cal. Rep. Clt. 80. 341. § 523. This title applies to natural persons 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. En. March 21, 1872. Cal. Rep. Cit. 79, 168; 80, 341; 98, 313. Toll roads: See Pol. Code, sees. 2779-2832. § 524. Franchises for construction of roads for horseless vehicles. The legislative or other body to whom is in- trusted 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 vehicles, for a term not exceeding fifty years. In incorporated cities no fran- chise must be granted for the purpose herein expressed, unless the consent in writing of the owners of a majority §§ 528, 529 BRIDGE, FERRY, ETC., CORPORATIONS. 172 of the frontage upon the road or street along which said path or road is sought to be constructed, is first had and obtained, and filed with such legislative or governing body. En. Stats. 1905, 578. The statute of 1897, page 191, authorizing municipal corporatlona to construct paths and roads for the use of bicycles and other horseless vehicles, is codified in this section.— Code Commissioner's Note. TITLE VL BRIDGE, FERRY, WHARF, CHUTE, AND PIER CORPORATIONS. § 528. Corporation to obtain license from supervteors. § 529. Corporate existence ceases, when. § 530. Annual report to supervisors. § 531. This title to apply to natural persons alike with corporatiocs. § 528. Corporation to obtain license fronn supervisors. No corporation must construct, or take tolls on a bridge, ferry, wharf, chute, or pier until authority is granted there- for by the supervisors, or other governing body having authority in that behalf. En. March 21, 1872. Am'd. 1905, 579. The change consists in the insertion of the words "or other rovcmtog body having authority in that behalf," after "supervlBor.-— Opde Commissioner' s Note. Cal. Rep. Clt. 136, 49. Public ferries and toll bridges: See Pol. Code, sees. 284S et seq. § 529. Corporate existence ceases, when. Ervery sxtdtL corporation ceases to be a body corporate: 1. If, within six months from filing its articles of incor- poration, 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 commenced the construction of the bridge, wharf, chute, or pier, and actually expended thereon at least ten per cent of the capital stock of the corporation; 2. If, within three years from filing the articles of incor- poration, the bridge, wharf, chute, or pier is not completed; 3. If, when the bridge, wharf, chute, or pier of the cor- poration is destroyed, it is not reconstructed anti 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 173 BRTDGE, FERRY. ETC., CORPORATIONS. 9 WO establish it, or if at any time thereafter it ceases for a like term consecutively to perform the duties imposed by law. Bn. March 21, 1872. Am'd. 1905, 579. The change consists in the insertion of the words "or other governing body having authority in that behalf," after "supervisors."— CoAe CJommissi oner's Note, § 530. Annual report to supervisors. The president and secretary of every brid-ge, ferry, wharf, chute, or pier cor- poration must annually, under oath, report to the board of supervisors, or other governing body having authority in that behalf, of the county in which the articles of incorpo- ration 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; 8. 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 amount of dividends made, and the indebtedness of the corporation, specifying for what it was incurred; 6. Such other facts and particulars respecting the busi- ness of the corporation, as the board of supervisors or other governing body having authority in that behalf may require. 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 permitted to elapse after such failure an additional penalty of fifty dollars, pay- able in each case to the county from which the authority of the corporation was derived. All such cases must be reported by the board of supervisors, or other governing body having authority in that behalf, to the district attor- ney or city attorney, who must commence an action there- for. En. March 21, 1872. Am'd. 1905, 579. The change consists in the insertion of the words "or other governing body having authority in that behalf," after "supervisors. "—OxJe Commissioner's Note. §§ 531-537 TELEGRAPH CORPORATIONS. 174 § 531. This title to apply to natural persons alike with corporations. When a bridge, ferry, wharf, chute, or pier is constmcted, operated, or owned by a natural person, this title is applicable to sudh persons in like manner as it is applicable to corporations. En. March 21, 1872. Cal. Rep. Cit 98, 314. General provisions: Pirblic ferries and toll bridges, PoL Code, sees. 2843-2895; wtearves, chutes, and piers, PoL Code, sees. 2906-2921. TITLE VII. Old title repealed and new title added Mlarch 20, 1905. Stats. 1905, 492. TKLEGRAPH AND TELEPHONE CORPORATIONS. I 638. May use rig-ht of way along waters, roads, and highwaya. § 637. Liability for damaging telegraph or telephone property. § 638. Penalty for willfully or maliciously injuiingr telegraph or tele- phone property. § 539. Conditions on which damage to subaqueous cable may be recov- ered. § 640. May dispose of certain ri^ts. § 641. Rates of charges to be fixed and how published. (Repealed.) S 536. May use right of way along waters, roads, and highways. Telegraph or telephone corporations may con- struct lines of telegraph or telephone lines along and apon any public road or highway, along or across any of the waters or lands within this state, and may erect poles, posts, piers, or ahutments 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 En. March 21, 1872. Rep. 1905, 492. Eki. 1905, 492. The change consists in the insertion of the words "or telephone" after the word ♦'telegraph," thus Including telephone companies within th« operation of the above sections. — Code Commissioner's Nerte. § 537. Liability for damaging telegraph or telephone property. Any person who injures or destroys, through want of proper care, any necessary or useful fixture of any tel^raph or telephone corporation, is liable to the corpo- ration for all damages sustained thereby. Any vessel which, by dragging its anchor, or otherwise, breaks, in- 175 TELEGRAPH CORPORATIONS. §§ 538-541 jures, or destroys the subaqueous cable of a telegraph or telephone corporation, su'bjects its owner to the damages hereinbefore specified. En. March 21, 1872. Rep. 1905, 492. En. 1905, 492. See note to § 536, ante. § 538. Penalty for willfully op maliciously Injuring tele- graph or telephone property. Any person who willfully and maliciously does any injury to any telegraph or telephone property, mentioned in the preceding section, is liable to the corporation for one hundred times the amount of actual damages sustained thereby, to be recovered in any court of competent jurisdiction. En. March 21, 1872. Rep 1905, 492. En. 1905, 492. See note to § 536, note. § 539. Conditions on which dannage to subaqueous cable may be recovered. No telegraph or telephone corporation can recover damages for the breaking or injuring of any subaqueous telegra>ph or telephone cable, anless such cor- poration has previously erected on eitlier bank of the waters under which the cable is placed, a monument, indi- cating 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 pur- pose of the monuments, and the general course, landings, and termini of the cable. En. March 21, 1872. Rep. 1905, 492. En. 1905, 492. See note to § 536, ante. § 540. May dispose of certain rights. Any telegraph or telephone 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, franchises, or property of the corpora- tion, except its corporate franchise. En. March 21, 1872. Rep. 1905, 492. En. 1905, 492. See note to § 536, ante. § 541. Rates of charges to be fixed, and how published. (Repealed.) En. March 21, 1872. Rep. 1873-4, 216. 55 648-560 WATEm AKD CANAl. CORPORATIONS. 176 TITLE VIII. WATER AND CANAL. CORPORATIONS. § 548. Corporation may obtain contract to supply city or town. § 549. Water corpoi-ations, duties, etc. § 560. Right to use streets, ways, alleys, and roads. § 551. Construction of canal, etc. § 552. Right of purchaser to use water for irrigatlngr. § 548. Corporation may obtain contract to supply city or town. No corporation formed to supply any city, city and county, or town with water must do so unless previ- ously authorized by an ordinance of the authorities there- of, or unless it is done in conformity with a contract en- tered into between the city, city and county, or town and the corporation 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. Hr, March 21, 1872. Water rights: See sees. 1410 et seq. § 549. Water corporations, duties, etc. All corpora- tions formed to supply water to cities or towns must fur- nish pure fresh water to the inhabitants thereof, for family uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor; and must furnish water to the extent of their means, in case of fire or. other great necessity, free of charge. The 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. En. March 21, 1872. Am'd. 1873-4, 21; 1905, 580. The change consists In the omission of the two sentences following the word "charge," which are now a part of the section, said sentences having been superseded by the provisions of the Constitution of 1879, providing for the mode in which water rates shall be fixed. — Code Commissioner's Note. Cal. Rep. Cit. 52, 134; 52, 141. i 550. Right to use streets, ways, alleys, and roads. En. March 21, 1872. Rep. 1905, 580. This section is an expression of the constitutional provisions found In the ConstitutloH of 1849, respecting the right of corporations to use streets for laying water pipes. — Code Commissioner's Note. 177 WATER AND CANAL. CORPORATIONS. §§ 551-5S2 § 551. Construction of canal, etc. No canal, flume, or other appliance for the conducting of water must be so laid, construi § 635. Retiring free shares. The directors may, at their discretion, under the regulations prescribed in their §635 by-laws, retire the free shares of any series of stock, at any R. & r, time after four years from the date of their issue, by en- *" '^''^ forcing the withdrawal of the same; but whenever there shall remain in any series, at the expiration of five years after the date of its issue, an excess above one hundred free shares of the par value of two hundred dollars each, or two hundred free shares of the par value of one hundred dollars each, then it shall be the duty of the directors to retire annually twenty-five per centum of such excess ex- isting at said expiration of five years after the date of its issue, so that no m.ore than one hundred free shares shall remain in such series at the expiraton of nine years from the date of its issue; provided, that no more than one half the monthly receipts be used for that purpose; and there- after the directors may, in their discretion, retire such other free shares as they consider to the best Interest of the association to retire; provided, that whenever, under • the provisions of this section, the withdrawal of shares is to be enforced, the shares to be retired shall be deter- mined by lot, drawn from all free shares in the series, as shall be regulated by the by-laws, and the holders thereof shall be paid the amount actually paid in, and the full amount of earnings at the date of last apportionment of profits. En. Stats. 1891, 254. ^. n.o § 636. Maturity of stock. When the stock in any series shall have reached its matured value, payment of dues §636 thereon shall cease, and all of the stockholders in such R. & R- series who have borrowed from the association shall be ^ ^^^ entitled to have their securities returned to them, and a satisfaction of the mortgages made by them to the associa- tion; and the holders of free shares of stock in such series §§ 637, 638 LAND AND BUILDING CORPORATIONS. SOt shall be paid out ot the funds of the association the ma- tured value thereof, with such rate of interest as shall be determined by the by-laws, from the time the board of directors shall declare such share to have matured until paid; but at no time shall more than one-third of the re- ceipts of the association be applicable to the payment of matured shares, without the consent of the board of di- rectors. The order of the payment of the matured shares shall be determined by the by-laws. En. Stats. 1891, 254. h- "^ § 637. Loans and Installments. The moneys in the hands of the treasurer, and such sums as may be bor- §637 rowed by the corporation for the purpose, shall be loaned R. & R« out in open meeting to the member who shall bid the highest premium, or may be loaned at such premium as may be fixed from time to time, by the board of directors; and the premium may be deducted from the amount of the loan, or such proportion may be deducted as the by-laws shall provide, and in that case the balance of said pre- mium shall be payable in such installments as the by-laws shall determine; provided, however, that where the pre* mium is payable in installments, the number of install- ments into which the same is divided shall be uniformly applicable to all loans made by the corporation, and shall be payable at the times and in the manner as provided in the by-laws; and provided further, that In no case shall the amount loaned exceed the matured value of the shares pledged to secure the loan. En. Stats. 1891, 254. Cal. Rep. Cit. 136, 526. p.'+i<5 § 638. Rate of Interest. Security. The rate of inter- est on all loans may be fixed by the bjMaws; but in case §638 the by-laws fail to fix the rate, then it shall be fixed from R. &R-time to time by the board of directors. For every loan ^.^"^^ made a note or obligation secured by a first mortgage or deed of trust upon unincumbered real estate shall be giv- en, accompanied by a transfer and pledge to the associa- tion of at least one share of stock as collateral security for the repayment of the loan, or in lieu of a mortgage or deed of trust there may be pledged and transferred to the asso- ciation for the payment of the loRP01lATlONS. § 645 snch association which shall fail to furnish the bank com- missioners any such report required, within thirty days af- ter demand, shall forfeit the sum of ten dollars per day for every day such report shall be delayed or withheld; which may be recoyered 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 the state, who shall pay the same into the "bank commission- ers' fund." The state bank commissioners shall annually publish a full report of the condition of all associations formed under the provisions of this title, and every other association doing a like business in this state, in the sam« manner as they are now required to do in reference to sav- ings banks. En. March 21, 1872. Rep. 1891, 252. En. Stats. 1891, 256. Cal. Rep. Cit. 131, 342; 131, 344. Section 1 of the act of 1891, p. 256, amending this sec- tion, provided that this section should apply to all such associations whether organized before or after the passage of the act. See also Stats. 1867-8, 539, sec. 1. § 645. Foreign corporations, deposit by. No mutual „g^- building and loan association, or company, association, or-^^^j corporation organized under the laws of any other state or territory, to carry on a business of a like character to that authorized by this title, shall be allowed to do busi- ness or to sell their stock in this state without first hav- ing deposited with the state controller or secretary of state the sum of fifty thousand dollars in money, or United States or municipal bonds of this state, or in mortgages upon real estate located within this state, as a guaranty fund for the protection and indemnity 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 Cal- ifornia 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 corpora- tion. Any of the securities so deposited may be with- drawn at any time upon others, herein provided for, of like amount being substituted in lieu thereof. Any person or persons who shall be found in this state as agent, or in any other capacity, representing such foreign company, association, or corporation which, has not complied with the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be punished \>y A ,R. & R. U 646-647 LAND AKD BUILDING CORPORATIONS. 212 fine not exceeding one thousand dollars or by imprison- ment in the county jail not exceeding twelve months, or by both such fine and imprisonment. En. March 21, 1872. Rep. 1891, 252. En. Stats. 1891, 256. OslI. Rep. Cit. 131, 342. p. '^^I § 646. Electing to continue business. Any building and loan association, now existing and heretofore incorpo- §646 rated, desiring to continue its existence under the provi- R. & R. sions of this title, may do so if the hoMers of a majority of P, 4P^ the stock, at their regular annual meeting, or at a special meeting of the stockholders called for that purpose, shall so elect. The notice of the meeting, whether regular or special, shall state as one of the objects of the meeting to vote on the question whether the corporation shall con- tinue its existence under the provisions of this title; and the notice of meeting shall be published as required by sec- tion three hundred and one; and, in addition thereto, a similar notice shall be mailed to each stockholder at his postoffice address. Within thirty days after the holders of a majority of the stock at any such meeting have voted to continue the existence of the corporation under the provisions of this title, the secretary of the corporation shall, under oath, make and subscribe, as such secretary, a certificate, in writing, stating the calling of such meet- ing, the fact that the holders of a majority of the stock voted to continue the existence of the corporation under this title, which shall be filed in the office of the county clerk in which its original articles of incorporation have been filed, and shall file in the office of the secretary of state a certified copy thereof, according to the provisions of section two hundred and ninety-six; and the secretary of state shall issu« his usual certificate, as provided in said section. Thereupon, such corporation shall be subject to all the provisions of this title, as though originally incor- porated under the provisions hereof, except that no change in its name or amount of capital stock shall be made; but the name shall be the same as contained in the original articles. En. March 21, 1872. Rep. 18T3-4, 217. En. Stats, 1891, 257. Gal. Rep. Clt. 121, 339; 131, 341; 131, 342. . . - § 647. Subject to provisions relating to bank commis- sioners. All corporations doing the business of building |647 and loan associations in this state shall be subject to the R. & B. provisions of this title relating to the bank commission- 213 COLLEGES AND SEMINARIES OF LEARNING. §§ 648-649 ers. En. March 21, 1871. Rep. 1891, 252. En. Stats. 1891, 267. I Cal. Rep. Cit. 93, 306; 116, 414; 131, 341; 131, 342. ^B § 648. Definition of. The name "building and loan as- sociation," as used in this act, shall include all corpora- tions, societies, or organizations or associations doing a ^^ savings and loan or investment business on the building i**^* society plan, viz.: loaning its funds to its members or its shareholders, and whether issuing certificates of stock which mature at a time fixed in axivance or not. En. March 21, 1872. Rep. 1873-4, 217. En. Stats. 1891, 257. Cal. Rep. Cit. 127, 39; 131, 342. § 648/2. Taxation of. En. Stats. 1891, 257. Rep. 1905. 753. This section is no longer necessary; the statute referred to therein to wit: that of 1877-8, page 955, having been repealed. (Stats. 1^7, p. 243.) — Code Commissioner's Note. Cal. Rep. Cit. 136, 525. ™' TITLE XVII. COLLEGES AND SEMINARIES OF LEARNINa. § 649. Articles of incorporation. § 650. Board of trustees, powers of. § 651. Existing institutions may reincorporate under this act. § 649. Articles of incorporation. Any number of per- sons who may desire to establish a college or seminary of learning may incorporate themselves as provided in this part, except that in lieu of the requirements of secton two hundred and ninety, the articles of incorporation shall con- tain: 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 conducted. 4. The number of its trustees, which shall not be less than five nor more than fifteen, and the names and resi- dences of the trustees. The term for which the trustees named and their successors are to hold ofiice 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 limitation shall be stated. 5. The names of those who have subscribed money or property to assist in founding the seminary or college, to- gether with the amount of money and description of prop- erty subscribed. En. Stats. 1885, 133. § 650 COLLEGES AND SEMINARIES OF LEARNING. 214 § 650. Board of trustees, powers of. Unless otherwise provided iii the articles of incorporation the board of trus- tees shall, as soon as organized, so classify themselves that one-fifth of their number shall go out of office every year, and thereafter the trustees shall hold office for five years. A majority of the trustees shall constitute a quorum for the transaction of business, and the office of the corpora- tion shall be at the college or seminary. The trustees shall have power: 1. To elect, by ballot, annually one of their number as president of the board. 2. Upon the death, removal out of the state, or other vacancy in the office, or expiration of the term of any trustee, to elect another in his place; provided, that where there are graduates of the institution, such graduates may, ander such rules as the board shall prescribe, nominate persons to fill vacancies in the board of trustees. Such nominations 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 fifteen at any one time. 4. To declare vacant the seat of any trustee who shall absent himself from eight succeeding meetings of the board. 6. To receive and hold, by purchase, gift, devise, be- quest, or grant, real or personal property for educational purposes connected with the corporation, or for the benefit of the institution. 6. To sell, mortgage, lease, and otherwise use and dis- pose of the property of the corporation in such manner as they shall deem most conducive to the prosperity of the corporation. 7. To direct and prescribe the course of study and dis- cipline 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 trus- tees. 9. To appoint such professors, 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 United States, and in testimony thereof to give suitable diplomas under their seal, and the signature of such of- !■ 215 CONSOLIDATION OF COLLEGES, ETC. §§ 651, 652 rficers of the corporation and the institution as they shall deem expedient, 11. To fix salaries of the president, professors, and oth- ^er 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 nec- essary to advance the interests of the college or seminary; provided, that no by-laws or ordinance shall conflict with the constitution or laws of the United States, or of this state. En. Stats. 1885, 133. § 651. Existing institutions nnay reincorporate 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 conclusively proven by the entries in the minutes of the corporation or body making the conveyance. Said minutes shall be certified to be correct by the president and secre- tary. En. Stats. 1885, 134. TITLE XVIII. CONSOLIDATION OF COLLEGES AND INSTITUTIONS OF HIGHER EDUCATION. { 652. Soci«ties and organizatlona authorized to consoUdate. Trustees. Annual reports. { 653. Transfer of property. Indebtedness. Specific grants. Dissolu- tion. § 652. Societies and organizations autliorized to con- solidate. Trustees. Annual reports. Whenever any be- nevolent, religious, or fraternal organization or society, having a grand lodge, assembly, conference, or other legis- lative or representative head in the state of California, having two or more colleges or institutions of higher edu- cation under its patronage, shall, for the purpose of great- er eflaciency and simplicity in the administration of its edu- cational interests, desire to consolidate sucb institutions under one management, such organization or society shall be and is authorized to consolidate such institutions under one management by complying with the following provi- aions: § 653 CONSOLIDATION OF COLLEGES, ETC. 218 First. Such grand lodge, assembly, conference, or other legislative or representative head having authorized a con- solidation 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 consolidated, 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 ntimfcer 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 representative head at its annual meeting. Second. The said board of trustees shall report annually to the grand lodge, assembly, conference, or other legisla- tive or representative head controlling it, the condition of ftfCairs of such corporation and the amount and manner of its receipts and expenditures. En. Stats. 1893, 4. § 653. Transfer of property. Indebtedness. Specific grants. Dissolution. The several boards of trustees of the institutions 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 au- thority conferred upon or enjoyed by them under their respective charters or acts of incorporation. The new corporation receiving such property shall assume all in- debtedness and liabilities of such institutions as are thus consolidated, but shall not transfer such property from one location to another, except by an affirmative vote of not less than three-fourths of the sai-d board of trustees of the. new corporation, nor divert specific grants, dona- tions, 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 here- inabove provided, and the same has been ac-cepted by the said new corporation, then the franchises held by the cor- porations thus consolidating shall cease, and the said cor- porations shall be thereby dissolved. En. Stats. 1893, 4. AmU 1895, 40. 216a CO-OPERATIVE CORPORATIONS. §§ 653a, 66313 TITLE XIX. Title added March 21, 1905. Stats. 1905, 594. CO-OPERATIVE BUSINESS CORPORATIONS. § €53a. Purposes for which may be form«d. § 653a. Purposes for which may be formed. CJo-opera- tive 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 mat- ters 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 persons among whom such division may be made. En. Stats. 1905, 594. This section is a codification of that part of the statute of 1877-8, page 883, defining co-operative corpoi-ations, and the section is placed in a new title designated "Co-operative Business Corporations." That part of the statute declaring that the by-laws may provide for the number of votes to which each shareholder shall be entitled is omitted for the reason that it is special legislation, and probably un- constitutional within the decision in Krause v. Durbrow, 127 Cal. 681. —Code ComnuHsioner's Note. TITLE XX. Title added March 21, 1905. Stats. 1905, 595. CO-OPERATIVE BUSINESS ASSOCIATIONS. § $SSb. Formation and purposes of. § 65Sc. Rights, interests, and liabilities of members. § 653!d. The articles of association. § 653e. The by-laws. § 653f. Execution against the association or its members. § QSZg. Purpose of the association, how may be altered. § 653h. Powers of the association. § 6531. Consolidation of associations. § S53j. Dissolution and winding up of association. § ^3k. Quo warranto to inquire into the right of an associaticm to do busing. S 6631. What corporations or associatioas aj-e not aftected by tMa titl«. § 653b. Formation and purposes of. Five or more per- Bons 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, so- cial, or political purpose. Such association must not have any capital stock, but must issue membership certificates to each member. Such certificate cannot be assigned, so that the assignee can, by its transfer, become a member §§ 653c, 653d CO-OPERATIVB ASSOCIATIONS. JMb of the association, but, by a resolution of its board of di- rectors, such certificate may be transferred, and the trans- feree made a member in lieu of the last former holder. En. Stats. 1905, 595. The statute of 1895, page 221, is codified in the above sections which are placed in a title designated "Co-op«rative Busiaess Associa- tions." — Code Commissioner's Note. § 653c. Rights, interests, and liabilities of members. In such association the rights and interests of all members are equal, and no member can have or acquire a greater in- terest therein than any other member has. At every elec- tion held pursuant to the by-laws each member must be en- titled to oast one vote and no more. All persons above the age of eighteen years, regardless of sex, are eligible to membership, 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 in- cur. And no member shall be responsible individually, or personally liable, for any of the debts or liabilities of the association in excess of his proportion of such indebted- ness; but in case of the failure and insolvency of such as- sociation, may be required to pay any unpaid dues* or in- stallments which have, before such insolvency, become due from such member to the association, pursuant to its by- laws. En. Stats. 1905, 595. See note to § 653b, ante. } 653d. The articles of association. Every association formed under this title must prepare articles of associa- tion, in writing, stating: The name of the assoeiation. the purpose for which it is formed, the place where its princi- pal 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 amount which each member is to pay up- on admission 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. Such articles of associaton must be subscribed by the original associates or members, and acknowledged by each before some person competent to take an acknowledg- ment 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 associa- tion Is to be transacted, and a copy thereof certified by ^16c CO-OPBRATTVB ASSOCaATIONS. f S58e such clerk, with the secretary of state, who must there- upon issue his certificate in the form, and having the ef- fect prescribed in section two hundred and ninety-six. En. Stats. 1905, 595. See note to § 653b, ante. § 653e, The by-laws. EJrery association formed under this title must, within forty days after it so becomes an as- sociation, adopt a code of by-laws for the government and management of the association, not inconsistent with this title. A majority 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. Such association may, by its by-laws, provide for the time, place and manner of calling and conducting its meetings; the number of directors, the time of their election, their term of office, the mode and manner of their removal, the mode and manner of filling vacancies in the board caused hy death, resignation, removal, or otherwise, and the pow- er and authority of such directors, and how many thereof are necessary to the exercise of the powers of such direc- tors, which must be at least a majority; the compensation 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, pro- vided, the method secures the secrecy of the ballot; the mode and manner of succession of membership, 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 ex- pelled member to have the board of directors appraise his interest in the association in either money, property, or la- bor, as the directors may deem best, and to have the mon- ey, property, or labor so awarded him paid, or delivered, or performed within forty days after expulsion; the amount of membership fee, and the dues, installments, or labor which each member must be required to pay or perform, if any, and the manner of collection or enforcement, and for for- feiting or selling of membership interest for nonpayment or nonperformance; the method, time, and manner of per- S9 653f, 65Sg CO-OPERATIVE ASSOCIATIONS. 216(3 mitting the withdrawal of a member, if at all, and how hig 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 representa- tives or none of them desire to succeed to the membership, and whether the same must be paid to his legal representa- tives 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. The by-laws must pro- vide for the time and manner in which profits must be di- vided among the members, and what proportion of the prof- Its, 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 installment of earnings, at their discretion. The by-laws and all amendments must be recorded in a book and kept in the office of the association, and a copy, certi- fied by the directors, must be filed in the office of the coun- ty clerk where the principal business in transacted. En. Stats. 1905, 596. See note to § 653b, ante. § 653f. Execution agdinst the association or Its mem- bers. The property of such association is subject to at- tachment 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 au- thorize the purchaser to have any right, except to succeed, as a member in the association, with the consent of the di- rectors, to the rights of the member whose interest is thus sold. If the directors choose to pay or settle the matter af- ter such sale, they may either cancel the membership, and add the interest thus sold to the assets or common prop- erty of the association, or reissue the share or right to a new member upon proper payment therefor, as the direc- tors may determine. En. Stats. 1905, 597. See note to § 653'b, ante. § 653g. Purpose of the association, how may be aitered. The purpose of the business may be altered, changed, mod- ified, enlarged, or diminished by a vote of two thirds of all the members, at a special election to be called for such purpose, of which notice must be given the same as the by it CO-OPERATIVE ASSOCIATIONS. §§ 653h, 6531 laws provide for the election of directors. En. Stats. 1905, 697. See note to § 653b, ante. § 653h. Powers of the association. Ehrery association formed under this title has power of succession by its as- sociate name for fifty years; in such name to sue and be sued in any court; to make and use a common seal, and al- ter the same at pleasure; to receive by gift, devise, or pur- chase, 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 associates or members, and to sell or forfeit their Interest in the association for default of installments, or dues, or work, or labor required, as provided by the by- laws; to enter into any and all lawful contracts or obliga- tions essential to the transaction of its affairs, for the pur pose for which it was formed, and to borrow money, and Issue all such notes, bills, or evidences of indebtedness or mortgage as its by-laws may provide for; to trade, barter, buy, sell, exchange, and to do all other things proper to be done for the purpose of carrying into effect the objects for which the association is formed. En. Stats. 1905, 597. See note to § 653b, ante. § 6531. Consolidation of associations. Two or more as- sociations 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 for such purposes, and by such name, as may be agreed up- on, in writing, signed by two-thirds of the members of each such association. Such agreement must also state all the matters necessary to articles of association, and must be acknowledged by the signers before an officer competent to take an acknowledgment of deeds in this state, and bo filed in the office of the county clerk of the county where- in the principal business of the association is to be trans- acted, and a certified copy thereof in the office of the sec- retary of state, and pay the same fees for filing and record- ing as required by this code for the filing ard recordinj^ of the certified copy of the original articles of association; 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 IS 653J, 653k CO-OPERATIVE ASSOCIATIONS. 216f prescribed in the agreement of consolidated association not inconsistent with this title, and is subject to all the liabili- ties 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 ti- tle. EH. Stats. 1905, 598. See note to § 653b, ante. § 653J. Dissolution and winding up of association. Any association formed or consolidated under this title may be dissolved and its affairs wound up voluntarily by the writ- ten request of two thirds of the members. Such request must be addressed to the directors, and must specify rea- sons 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 af- fairs of the association, a majority of whom must thereup- on have full power to do all things necessary to liquida- tion; and upon the filing of such request with the direc- tors, and a copy thereof in the otB.ce of the county clerk of the county where the primiipal 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 mem- bers. In writing, filed in the office of said county clerk; and upon the completion of such liquidation the said asso- ciation 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 applica- tion of any member, save after judgment of dissolution for usurping franchises at the suit of the State of California by its attorney general. En. Stats. 1905, 598. See note to § 653b, ante. § 663k. Quo warranto to Inquire into the right of an as- sociation 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. En. Stats. 1905. 599. See note to § 653b, ante. tasg CO-OPERATIVE ASSOCIATIONS. i «6Sl § 6531. What corporations or associations are not af- fected by this title. This title is not applicable to rail- roads, telegraph, telephone, banking, insurance, building and loan, or any other corporation, unless the special pro- visions of this code, applicable thereto, are complied with. En. Stats. 1905, 599. See note to § 6&3b, anto. DIVISION SECOND. Part I. Property in General, §§ 654-749. II. Real or Immova'ble Property, §§ 755-940. m. Personal or Movable Property, §§ 946-994. IV. Acquisition of Property, §§ 1000-1425. (217) PAET I. PROPERTY IN GENERAU Title I. Nature of Property, §§ 654-663. II. Ownership, §§ 669-742. m. General Definitions, §§ 748-749. TITLE I. NATURE OF PROPERTY. § 654. Property, what, § 655. In what property may exist. § 656. Wild animals. § 657. Real and personal. § 658. Real property. § 659. Lian1-66'J Cal. Rep. Cit. 51, 596; 52, 394; 52, 396; 70. 6; 77, 191; 80, 250; 86, 338; 91, 379; 118, 636; 126, 605; 138, 586; 139, 167; 140, 187; 142, 539; 147, 7; 147, 354. § 661. Fixtures attached to mines. Sluice-boxes, [nmes, hose, pipes, railway tracks, cars, blacksmith shops, mills, anJ all other machinery or tools used in working or developing a mine are to be deemed affixed to the mine. En. March 21, 1872. Cal. Rep. Cit. 76, 583; 76, 585; 80, 512; 102, 142; 118, 153; 118, 636; 142, 539. § 662. Appurtenances. 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 watercourse, or of a passage for light, air, or heat from or across the land of another. En. March 21, 1872. CaL Rep. Cit. 52, 395; 52, 396; 56, 13; 62, 184; 67, 497; 77, 402; 79, 590; 80, 315; 86, 338; 91, 155; 91, 190; 93, 368; 109, 36; 110, 585; 120, 490; 120, 493; 140, 187; 142, 539; 146, 400; 146, 440. Easements and servitudes. See post, sees. 801 et seq. S 663. Personal property. Every kind of property that ifl not real is personal. En. March 21, 1872. Cal. Rep. Cit. 113, 353; 142, 539. Personal property: See ante, sec. 14, subd. 3; and PoL Code, sec. 3617. TITLE IL OWNERSHIP. Clig^ter I. Owners, §§ 669-672. II. Modifications of Ownership, §§ 678-726. III. Rights of Owners, §§ 732, 733. IV. Termination of Ownership, §§ 739-742, CHAPTER L OWNERS. § 669. Owner. § 670. Property of the state. § 671. Who may own property. § 672. Aliens inheriting must claim within flre years. S 669. Owner. All property has an owner, whether that owner is the state, and the property public, or the §§ 610, 672 dWNEftS. 822 owner an individual, and the property private. The state may also hold property, as a private proprietor. En. March 21, 1872, Cal. Rep. Cit. 73, 102. § 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 all property of which there is no other owner. En. March 21, 1872. Am'd. 1873-4, 217. Cal. Rep. Cit 62, 259; 69, 127; 70, 209; 138, 558. Property of the state: Pol. Code, sees. 40-44. Public lands: See Pol. Code, sees, 3395 et seq. Escheat: See post, sees. 1405, 1406, § 671. Who may own property. Any person, whether citizen or alien, may take, hold, and dispose of property, real or personal, within this state. En, March 21, 1872, Am'd. 1873-4, 218, Cal. Rep. Cit. 65, 594; 65, 595; 67, 382; 67, 386; 70, 155; 76, 296; 127, 434; 127, 435; 127, 436; 127, 437. Alien's right to inherit property: See post, sees. 1404 et seq. Aliens, control of property by: Cal. Const,, art. 1, sec, 17. § 672. Aliens inheriting must claim within five years. If a nonresident 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 VIII, part III, Code of Civil Procedure. En, March 21, 1872, Cal Rep. Cit, 65, 594; 67, 383; 67, 386; 70, 156; 70, 167; 143, 140; 143, 197; 143, 198. Escheated estates: See Code Civ. Proc, sees. 1269-1272. MODIFICATIONS OF OWNERSHIP. $$ 6t8-680 CHAPTER n. MODIFICATIONS OF OWNERSHIP. Artlcl* L Interests in Property, §§ 678-703. H. Conditions of Ownership, §i 707-71L ITL Restraint* upon AUenation, §{ 71&-T1*. lY. Aecumulationa, §§ 723-726. ARTICLE I. INTERESTS IN PROPERTY. ( 67S. Ownersditp, absotatc or qualified. § 679. When absolute. § 680. When qualified. § 681. Several ownership, what. § 682. Ownership of several person*. i 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. I 696. Two or more future interests. § 697. Certain future interests not to be void. I 698. Posthumous children. § 699. Qualities of expectant estates. § 700. Same. § 701. Interests in real property. i 702. Same. § 703. What future interests are recosnti»d. § 678. Ownership, absolute or qualified. Tlie owner- ship of property is either: 1. Absolute; or, 2. Qualified. En. March 21, 1872. Cal. Rep. Cit. 107, 420; 116, 345; 131, 307. § 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 pleasure, subject only to general laws. En. March 21, 1872. Cal. Rep. Cit 105, 470; 106, 680; 109, 555; 112, 399; 116, 345. § 680. Wkien qualified. The ownership of property is qualified: §§ 681-686 MODIFICATIONS OP OWNERSHIP. 221 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. En. March 21, 1872. Cal. Rep. Cit. 107, 420; 112, 399; 116, 345; 133, 422. § 681. Several ownership, what. The ownership of property by a single person is designated as a sole or sev- eral ownership. Eh. March 21, 1872. § 682. Ownership of several persons. The ownership of property by several persons is either; 1. Of joint interests; 2. Of partnership interests; 3. Of interests in common; 4. Of community interest of husband and wife. En. March 21, 1872. Cal. Rep. Cit 112, 399; 116, 342. Subd. 3—136, 463. § 683. Joint 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 de- clared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. En. March 21, 1872. Cal. Rep. Cit. 127, 149; 141. 435. See sees. 685, 686, infra. § 684. Partnership interest, what. A partnership in- terest is one owned by several persons in partnership, for partnership purposes. En. March 21, 1872. Cal. Rep. Cit. 65, 48; 102, 386. Partnership: See post, sees. 2395 et seq. § 685. Interest in common, what. An interest in com- mon is one owned by several persons, not in joint owner- ship or partnership. En. March 21, 1872. Cal. Rep. Cit. 141, 435. Tenancy in common: See ante, sec. 683; post, sec. 686. Partition: See Code Civ. Proc, sees. 752 et seq. Husband and wife as tenants in common: See ante, sec. 161. Devise or legacy to two or more makes them owners in common: See post, see. 1350. 5 686. What interests are in common. Every interest created in favor of stvera] persons in their own right is 225 MODIFICATIONS OF OWNERSHIP. S§ 6S7-692 an interest in common, unless acquired by them in part- nership, for partnership purposes or unless declared in its creation to be a joint interest, as provided in section 683, or unless acquired as community property. En. March 21, 1872. Cal. Rep. Cit. 141, 435. Interests in common: See ante, sees. 683, 685. § 687. Community property. Community property Is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either. En. March 21, 1872. Cal. Rep. Cit. 70, 284; 116, 342. Community property: See ante, sec. 164. § 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. En. March 21, 1872. Cal. Rep. Cit. 107, 420. § 689. Present interest, what. A present interest en- titles the owner to the immediate possession of the prop- erty. En. March 21, 1872. Cal. Rep. Cit. 107, 420. I 690. Future Interest, what. A future interest en- titles the owner to the possession of the property only at a future period. En. March 21, 1872. Cal. Rep. Cit. 79, 622; 104, 301; 107, 420; 122, 627; 133, 422. Accumulations as future interests: See sees. 722 et seq., and 733. Conditions upon the enjoyment of estates: See sees. 707 et seq. Terminating future interests: See sees. 739 et seq. § 691. Perpetual interest, what. A perpetual interest has a duration equal to that of the property. En. March 21, 1872. § 692. Limited interest, what. A limited interest has a duration less than that of the property. En. March 21, 1872. Ctrn Code— 15 S§ 693-W MODIFICATIONS OF OWNERSHIP. 22fi § 693. Kinds of future Interests. A future interest is either : 1. Vested; or, 2. Contingent. En. March 21, 1872. § 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 precedent Interest. En. March 21, 1872. Cal. Rep. Cit. 73, 102; 122, 627; 132, 574; 132, 578; 133, 422; 136, 106. § 695. Contingent interests. A future interest is con- tingent, whilst the person in whom or the event upon which, it is limited to take effect remains uncertain. En. March 21, 1872. Cal. Rep. Cit. 120, 84; 120, 85. § 696. Two or more future Interests. Two or more future Interests may be created to take effect in the alter- native, so that if the first in order falls to vest, the next in succession shall be sut)stltuted for it, and take effect ac- cordingly. En. March 21, 1872. § 697. Certain future Interests not to be void. A fu- ture interest is not void merely because of the improbabil- ity of the contingency on which it is limited to take ef- fect. En. March 21, 1872. § 698. Posthumous children. When a future interest is limited to successors, heirs. Issue, or children, posthu- mous children are entitled to take in the same manner as if living at the death of their parent. En. March 21, 1872. Future Interests defeated by birth of posthumous child: See post, sec. 739. § 699. Qualities of expectant estates. Future interests pass by succession, will, and transfer, in the same manner as present interests. En. March 21, 1872. Cal. Rep. Cit. 104, 301; 107, 420; 108, 649; 122, 627; 133, 422. § 700. Same. A mere possibility, such as the expect- ancy of an heir apparent, is not to be deemed an interest of any kind. En. March 21, 1872. Cal. Rep. Cit. 70, 286; 104. 584; 112, 393; 124, 44; 138, 361; 141, 370. I 227 MODiFi (Nations of ownership. §§ 7oi-705» § 701. Interests In real property. In respect to real or immovable property, the interests mentioned in this chap- ter are denominated estates and are specially named and classified in part II of this division. En. March 21, 1872. § 702. Same. The names and classification of inter- ests in real property have only such application to inter- ests in personal property as is in this division of the code expressly provided. EJn. March 21, 1872. § 703. What future Interests are recognized. No fu- ture interest in property is recognized by the law, ex- cept such as is defined In this division of the code. En. March 21, 1872. ARTICLE n. CONDITIONS OF OWNERSHIP. I 707. Fixing the time of enjoyment. I 708. Conditions. I 709. Certain condltiong precedent void. I 710, Conditions restraining marriage void. 5 711. Conditions restraining alienation void. § 707. Fixing the time of enjoyment. The time when the enjoyment of property is to begin or end may be de- termined by computation, or be made to depend on events. In the latter case, the enjoyment is said to be upon con- dition. En. March 21, 1872. Cal. Rep. Cit. 109, 330. Conditional legacies: See post, sees. 1345 et seq. 8 708. Conditions. Conditions are precedent -or subse- quent. The former fix the beginning, the latter the end- ing, of the right. En. March 21, 1872. Conditional obligations: See post, sees. 1434-1442. Conditional limitation. — Remainder operating to abridge precedent estate: Post, sec. 778. § 709. Certain conditions precedent void. If a condi- tion 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 ^n act not wrong of itself, but otherwise unlawful, the ii^- 5;§ 710-716 MODIFICATIONS OF OWNERSHIP. 228 strument takes effect and the condition is void. En. March 21, 1872. Cal. Rep. Clt. 55, 566. § 710. Conditions restraining marriage void. Condi- tions imposing restraints upon marriage, except upon the marriage of a minor are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage. En. March 21, 1872. Am'd. 1873-4, 218. Contracts in restraint of marriage: See post, sec. 1676. § 711. Conditions restraining alienation void. Condi- tions restraining alienation, when repugnant to the interest created, are void. En. March 21, 1872. Cal. Rep. Cit. 64, 366; 74, 143; 110, 426; 110, 427; 141, 667. See also post, sees. 715, 772, and the title on Uses and Trusts, post, sees. 847 et seq. AiRTICLB in. HESTRAINTS UPON ALIENATION. 5 T16. How long It may be suspended. 8 716. Future Interests void, which suspend power of alienation. § 717. Leases of agrricultural lanvJ, for over ten years, void. § 718. Leases of city lots, for over fifty years, void. § 715. How long ft may be suspended. The absolute 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 creation of the limitation or condition, except in the single case mentioned in section 772. En. March 21, 1872. Cal. Rep. Cit. 58, 473; 58, 481; 58, 482; 73, 103; 74, 143; 79, 622; 105, 197; 108, 646; 108, 647; 108, 656; 108, 657; 108, 658; 109, 330; 118, 657; 118, 658; 119, 146; 121, 382; 123, 142; 124, 536; 133, 620; 136, 141; 136, 142; 144, 125; 144, 127. See also, post, sec. 771. § 716. Future Interests void, which suspend power of alienation. Every future interest is void in its creation which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation Is suspended when MODIFICATIONS OF OWNERSHIP. (§ 717-724 there are no persons in being by whom an absolute inter- est In possession can be conveyed. En. March 21, 1872. J Cal. Rep. Cit. 73, 103; 79, 622; 108, 647; 108, 648; 119, 146; 121, 882; 123, 143; 124, 537; 136, 141; 136, 142. § 717. Leases of agricultural land, for over ten years, void. No lease or grant of land for agricultural purposes for a longer period than ten years, in which shall be re- ' served any rent or service of any kind, shall be valid. En. i March 21, 1872. Am*d. 1895, 76. Cal. Rep. Cit. 141, 330. § 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 incom- petent person shall not be leased for a longer period than ten years. En. March 21, 1872. Am'd. 1903, 247. CaL Rep. Cit. 136, 142; 141, 667. ARTICLE IV. ACCUMULATIONa i i 722. Dispositions of Income. ! 728. Accumulations, when void. i 724. Accumulation of income. ' 725. Other directions, when void In part. i 726. Application of Income to support, etc., of minor. § 722. Dispositions of income. Dispositions of the in- come 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. En. March 21, 1872. Cal. Rep. Cit. 58, 481; 79, 628. § 723. Accumulations, wPien void. All directions for the accumulation of the income of property, except such as are allowed by this title, are void. En. March 21, 1872. Cal. Rep. Cit. 136, 103; 136, 142; 144, 127. § 724. Accumulation of Income. An accumulation of the income of property, for the benefit of one or more persons, may be directed by any will or transfer in writing §§ 725, 726 MODIFICATIONS OP OWNERSHIP. m 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 minor- ity; 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 aris€, 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. En. March 21, 1872. Cal. Rep. Cit. 58, 480; 58, 482; 79, 623; 136, 142. Ownership of undisposed accumulations: See sec. 733, post. Accumulations liable for debts: See sec. 859. Restraint upon disposition of beneficiary's interest: See sec. 867. Bequests of income: See post, sees. 1357, subd. 3, 1366. Annuities: See same sections. § 725. Other directions, when void m part. If in either of the cases mentioned in the last section the direction for an accumulation is for a longer term than during the mi- nority of the beneficiaries, the direction only, whether separable or not from other provisions of the instrument, is void as respects the time beyond such minority. En. March 21, 1872. § 726. Application of income to support, etc., of minor. When a minor for whose benefit an accumulation has been directed is destitute of other sufficient means of support and education, the proper court, upon application, may direct a suitable sum to be applied thereto out of the fund. En. March 21, 1872. Cal. Rep. Cit. 58, 481. Maintenance of ward out of his estate: See Code Civ. Proc^ sees. 1770, 1771. TERMINATION OF OWNERSHIP. fS 732-740 CHAPTER IIL 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 also |owns all its products and accessions. En. March 21, 1872. Accessions to real property: See post, sees. 1013 et seq. Accessions to personal property: See post, sees. 1025 et seq. § 733. In certain cases who entitled to Income of prop- erty. When, in consequence of a valid limitation of a future interest, there is a suspension of the power ot alienation or of the ownership during the continuation ot 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 in- terest. En. March 21, 1872. CaL Rep, Cit. 139, 689. CHAPTER IV. TERMINATION OF OWNERSHIP, 5 T3d. Future Interests, when defeated. § 740. Same. § 741. Future interests, when not defeated. § 742. Same. § 739. Future Interests, when defeated. A future Inter- est, depending on the contingency of the death of any person without successors, heirs, issue, or children, is de- feated by the birth of a posthumous child of such person, capable of taking by succession. En. March 21, 1872. Posthumous children: See ante, sec. 698. § 740. Same. A future interest may be defeated in any manner or by any act or means which the party creating such interest provided for or authorized in the creation thereof; nor is a future interest, thus liable to be defeated, to be on that ground adjudged void in its creation. En. March 21. 1872. §§ 7'£l-749 GENERAL DEFINITIONS. 232 § 741. Future interests, when not defeated. No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent interest, nor by any destruction of such precedent interest by forfeiture, surrender, merger, or otherwise, except as provided by the next section, or where a forfeiture is Im- posed by statute as a penalty for the violation thereot En. March 21, 1872. Cal. Rep. Cit. 147, 559. Future interests: See post, sec. 767. § 742. Same. 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 fu- ture interest is limited to take effect; but should such con- tingency afterwards happen, the future interest takes effect in the same manner, and to the same extent, as if the pre- cedent interest had continued to the same period. En. March 21, 1872. TITLE IIL CagJNERAL. DEFINITIONa § 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. En. March 21, 1872. § 749. Time of creation, what. The delivery of the grant, where a limitation, condition, or future interest is created by grant, and the death of the testator, where it is created by will, is to be deemed the time of the creation of the limitation, condition, or interest, within the mean- ing of this part of the code. En. March 21, 1872. Col. Rep. Cit 79, 622; 108, 647; .123, 142; 124, 537. PAET IL RRAL OR IMMOVABLE PROFETRTY. iTitle I. General ProTisions, § 755. II. Estates in Real Property, §§ 761-Sll. III. Rights anti Obligations of Owners, §§ 818-841. IV. Uses and Trusts, §§ 847-871. V. Powers, §J 878-940. [Repealed.] TITLE I. 6BNBRAL PROVISIONS. I 756. Real property, bow gcnremtriL § 755. Real property, how governed. Real property within this state is governed by the law of this state, ex- cept where the title is in the United States. En. March 21, 1872. Am'd. 1873-4, 218. Cal. Rep. Cit. 85, 282. Territorial jurisdiction of the state: See Pol. Code, sees. 33, 34. TITLE IL ESTATES IN REAL PROPERTY. Chapter L Estates in General, §§ 761-781. II. Termination of Estates, §§ 789-793, m. Servitudes, §§ 801-811. CHAPTMl L ESTATES IN GENERAI* § 761. Enumeration of estates. § 762. What estate a fee simple. § 763. Conditional fees and estates tall abolished. § 764. Certain remainders valid. I 765. Freeholds. Chattels real. Chattel interests. § 766. Estates for life of a third person, when a freehold, ^c (233) §§ 761-765 EiSTA-TES IN GENEHAl* 134 § 767. Future estates, limita4ioa» oi. § 768. Reversions. § 769. Remainders. § 770, Suspended ownerstfilp. § 771. Suspension by trust. § 772. Conting-ent remainder in fee. § 773. Remainders, future and contingent estates, horn u wttfd . § 774. Lamitation of successive estates for life. § 775. Remainders. § 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 mm partixaaexn. § 780. Construction of certain remainders. § 781. EfEect of power of appointment. § 761. Enumeration of estates. Estates in real prop- erty, in respect to the duration of tlieir enjoyment, are either: 1. Estates of inheritance or perpetual estates; 2. Estates for life; 3. Estates for years; or, 4. Estates at will. En. March 21, 1872. Cal. Rep. Cit. 79, 443; 142, 538. See post, sec. 765. § 762. What estate a fee simple. Bvery estate of in- heritance is a fee, and e^ery sirch estate, when not de- feasible or conditional, is a fee simple, or an absolute fee. En. March 21, 1872. Am'd. 1873-4, 218. Transferring fee, words of inheritance not essential: See sec. 1D72, post. Devising fee, "heirs** not essential: Sec 1329. § 763. Conditional fees and estates tail abolished. Es- tates tail are abolished, and every estate which wouM 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. En. March 21, 1872. Cal. Rep. Cit. 104, 302. § 764. Certain remainders valid. Where a remainder in fee is limited upon any estate, which would by the com- mon law be adjudged a fee tail, such remainder is valid as a contingent limitation ui>on a fee, and vests in possession on the death of the first taker, without issue living at the lime of his death. En. March 21, 1872. § 765. Freeholds. Chattels real. Chattel Interests. Kstates of inheritance and for life are called estates of s.lK ESTATES IN GENERAL. §§ 766-ni freehold; estates for years are chattels real; and estates at will are chattel interest.s, but are not liable as such to sale on execution. En. March 21, 1872. Cal. Rep. Cit. 113. 353; 142. 538; 142, 539. § 766. Estates for life of a third person, >yhen a free- hold, etc. An estate, during the life of a third person, whether limited to heirs or otherwise, is a freehold. En. March 21, 1872. Am'd. 1873-4, 218. § 767. Future estates, limitations of. 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. En. March 21, 1872. Cal. Rep. Cit. 49, 374; 98, 451; 136, 141; 146, 447. Future interests: See post, sec. 739 et seq. § 768. Reversions. A reversion is the residue of an es- tate left by operation c^ law in the grantor or his succes- sors, or in the successors of a testator, commencing in possession on the determination of a particular estate granted or devised. En. March 21, 1872. Cal. Rep. Cit. 134, 322. § 769. Remainders. 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. En. March 21, 1872. Cal. Rep. Cit. 120, 84. § 770. Suspended ownership. The absolute ownership of a term of years cannot be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee. En. March 21, 1872. Am'd. 1873-4, 218. § 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 alien- ation, within the meaning of section 715. En. March 21, 1872. Cal. Rep. Cit. 58, 481; 108, 647; 108, 648; 108, 656; 121. 382; 124, 537. §§ m-m ESTATES IN aENERAL.. 23<5 § 772. Contingent remainder in fee. A contingent re- mainder 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 a-ge of twenty- one years, or upon any other contingency by which the estate of such persons may be determined before they at- tain majority. En. March 21, 1872. Cal. Rep. Cit. 58. 474; 58, 476; 58. 480; 79, 622; 119, 146; 124, 537; 128, 9. § 773. Remainders, future and contingent estates, hov^^ created. Subject to the rules of this title, and of part I of this diTision, 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. En. March 21, 1872. Cal. Rep. Cit. 120, 84; 128, 9; 136, 141. § 774. Limitation o.f successive estates for life. Suc- cessive estates for life cannot be limited, except to per- sons 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 creation, takes elTect in the same manner as if no other life estate had been created. En. March 21, 1872. Am*d. 1873-4, 219. § 775. Remainders. No remainder can be created upon successive estates for life, provided for in the preceding section, unless such remainder is in fee; nor can a re- mainder be created upon such estate in a term for years. unless it is for the whole residue of such term. En. March 21, 1872. Am'd. 1873-4, 219. § 776. 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 limitesi 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. En. March 21, 1872. Cal. Rep. Cit. 136, 141. ESTATES IN GENERAL. §§ 777-7S1 § 777. Remalndep of estates for life. No estate for life lean be limited as a remainder on a term of years, except fto a person in being at the creation of such estate. En. IMarch 21, 1872. § 778. Remainder upon a contingency. 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 con- ditional limitation. En. March 21, 1872. Cal. Rep. Cit. 120, 84. See sec. 780, Infra. § 779. Heirs of a tenant for life, wlien to take as pur- chasers. When a remainder is limited to the heirs, or heirs of the body, of a person to whom a life estate in the same propei;ty is given, the persons who, on the termina- tion of the life estate, are the successors or heirs of the body of the ow^ner for life, are entitled to take by virtue of the remainder so limited to them, and not as mere succes- sors of the owner for life. En. March 21, 1872. Cal. Rep. Cit. 70, 559; 104, 299; 104, 301. § 780. Construction of certain remainders. When a re- mainder on an estate for life or for years is not limited on a contingency defeating or avoiding such precedent 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. En. March 21, 1872. § 781. Effect of power of appointment. A general 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. En. March 21, 1872. Cal. Rep, Cit 132, 558; 147, 102. S§ 7»-7« TERMINATION OP ESTATES. SS CHAPTER n. TERMINATION OF EISTATBS. § 78$. TenaB«7 at will may b« t«:Tninated 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 1162 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. En. March 21, 1872. Cal. Rep. Cit. 56, 129; 66, 447; 67, 471; 69, 320; 101, 428; 105, 19; 113, 19; 113, 540; 140, 167. Changing terms of tenancy: See sec. 827, post. § 790. Effect of notice. After such notice has been served, and the period specified by such notice has ex- pired, but not before, the landlord may re-enter, or pro- ceed according to law to recover possession. En. March 21 1872 Cal. Rep. Cit. 66, 447; 140, 167. § 791. Re-entry, when and how to be made. Whenever 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 1161 and 1162, Code of Civil Procedure. En. March 21, 1872. Cal. Rep. Cit. 56, 129; 56, 130; 63, 52; 66, 447; 138, 79. § 792. Summary proceedings In certain cases provided for. Summary proceedings for obtaining possession of real property forcibly entered, or forcibly and unlawfully detained, are provided for in sections 1159 to 1175, both inclusive, of the Code of Civil Procedure. En. March 21, 1872. § 793. Notice not 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- scribed in section seven hundred and ninety-one. En. March 21. 1872. Am'd. 1905, 599. The words "in the district court," where they occur in tbe tion, are omitted. — Code Commissioner's Note. Cal. Rep. Cit. 98, 425. KSBVITtJDES. CHAPTER rnL SERVITUDES. § mL Servitades attached to land. § SB. Servitudes not attached to Umd. § 803. Designation of estates. § 804. By whom grrantable. § 805. By whom held. I 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. I 811. How extinguished. § 801. Servitudes attached to land. The following 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; Z. 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 wetter 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 maintained by a coterminous owner; §f 802-806 SERVITUDES. MO 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. En. March 21, 1872. Cal. Rep. Cit. 56, 13; 69, 293; 83, 517; 83, 518; 90, 286; 91, 84; 120, 493; 136, 48; 146, 440. Subd. 4—132, 236. Subd. 8—120, 490. Coterminous owners, rights and duties: See post, sees. 832, 841. Basements passing with property: See post, sec. 1104. Flow of wai-r: See ante, sec. 552. § 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. 8. 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. En. March 21, 1872. Am'd. 1873-4, 219. Cal. Rep. Cit 65, 48; 69, 323; 91. 84; 99, 212; 109, 87. Subd. 5—110, 585. § 803. Designation 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. En. March 21, 1872. S 804. By whom grantable. A servitude can be cre- ated only by one who has a vested estate in the servient tenement. En. March 21, 1872. § 805. By whom held. A servitude thereon cannot be held by the owner of the servient tenement. En. March 21, 1872. Cal. Rep. Cit. 110, 585. Servitude extinguished by merger of estates: See post, Bee. 811. § 806. Extent of servitudes. The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. En. March 21, 1872. Cal. Rep. Cit 65. 48; 81, 125; 92, 141; 108, 596; 146, 211. J41 8ERVITUDB13. 6§ 807-8U § 807. Apportioning easements. In case of partition 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 ser- vient tenement En. March 21, 1872. § 808. Rights of owner of future estate. The owner of a future estate in a dominant tenement may use ease- rinents attached thereto for the purpose of viewing waste, Idemanding rent, or removing an obstruction to the enjoy- Iment of such easements, although such tenenment is occu- Ipied by a tenant. En. March 21, 1872. 5 809. Actions by owner and occupant of dominant Itenement. The owner of any estate in a dominant tene- Iment, or the occupant of such tenement, may maintain an laction for the enforcement of an easement attached there- fto. En. March 21, 1872. Cal. Rep. Cit. 146, 211. § 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 un- lawfully possessed thereof, though a servitude exists thereon in favor of the public. En. March 21, 1872. Cal. Rep. Cit. 69, 221. § 811. How extinguished. A servitude is extinguished: 1. By the vesting of the right to the servitude and the I right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 8. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which Is incompatible with its nature or exercise; or, 4 When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment. En. March 21 1872 Cal. Rep. Cit. 69, 292; 69, 294; 110, 585; 125, 425; 146, 644. Subd. 4—93, 213; 110, 126. Extinguishment of servitude.— Subd. 1. Vesting of right to servitude and right to servient tenement in same person: See sec. 805, ante. Civil Code— 16 §§ 818-826 RIGHTS OF OWNERS. TITLE III. RIGHTS AND OBLIGATIONS OF OWNERS. Chapter I. Rights of Owners, §§ 818-834. II. Obligations of Owners, §§ 840-841. CHAPTER I. RIGHTS OF OWNERS. Article I. IncMents of Ownership, {{ 818-827. II. Boundaries, §§ 829-834. ARTICLE I. INCIDENTS OF OWNERSHIP. 8 818. Rights of tenant for life. J 819. Rlffhts of tenant for years, etc. § 820. Same. I 821. Rights of grantees of rents and reversion*. I 822. Assigns of lessee, remedies against. 5 823. Rights of lessees and their assignees, eto. § 824. Remedy on leases for life. I 825. Rent dependent on life. 5 828. Remedy of reversioners, etc. 5 827. Terms of lease may be changed by notice. § 818. Rights of tenant for 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 in- jury of the inheritance. En. March 21, 1872. Duties of tenants for life: See sec. 840, post § 819. Rights of tenant for years, etc. A tenant for years or at will, unless he is a wrongdoer hy holding over, may occupy the buildings, take the annual products of the soil, work mines and quarries open at the commencement of his tenancy. En. March 21, 1872. Cal. Rep. Cit. 101, 428; 115. 625. § 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. En. March 21, 1872. Cal. Rep. Cit 86. 389. tiS RIGHTS OF OWNERS. 5§ 821-826 § 821. Rights of grantees of rents and reversions. A person to whom any real property is transferred or de- vised, upon which rent has been reserved, or to whom any such rent is transferred, is entitled to the same remedies for recovery of rent, for nonperformance of any of the terms of the lease, or for any waste or cause of forfeiture, as his grantor or devisor might have had. En. March 21, 1872. Cal. Rep. Cit. 79, 443. Grants of rent are not binding upon the tenant until he has notice thereof: Sec 1111, post. Hiring of real property generally: See sees. 1941 et seq. § 822. Assigns of lessee, remedies against. Whatever remedies the lessor of any real property has against his immediate lessee for the breach of any agreement 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 assign- ment is made by way of security for a loan, and is not accompanied by possession of the premises. En. March 21, 1872. Am'd. 1873-4, 219; 1905, 599. Cal. Rep. Cit. 63, 370; 144, 160. § 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 encumbrances or relating to the title or possession of the premises. En. March 21, 1872. Cal. Rep. Cit. 66, 421. § 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. En. March 21, 1872. § 825. Rent dependent on life. Rent dependent on the life of a person may be recovered after as well as be- fore his death. En. March 21, 1872. § 826. Remedy of reversioners, 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- .423 §§ 82?-830 RIGHTS OP OWNERS. 244 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 commence- ment of the action. En. March 21, 1872. Cal. Rep. Cit. 75, 121. § 827. Terms of lease may be changed by notice. In all leases of lands or tenements, or of any interest therein, _.- from month to month, the landlord may, upon giving no- K^iA t^^^ ^^ writing at least fifteen 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. En. Stats. 1873-4. 220. Cal. Rep. Cit. 86, 439; 105, 19. Termination of tenancy at will: See sec. 789, ante. ARTICLE n. / BOUNDARIES. § 829. Rights of owner. § 830. Boundaries by water. § 831. Boundaries by ways. § 832. Lateral and subjacent support. § 833. Trees whose trunks are wholly en. land of ooB, § 834. Line trees. S 829. Rights of owner. The owner of land in fee has the right to the surface and to everything permanently situated beneath or above it. En. March 21, 1872. i 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 navigable 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 middle of the lake or stream. En. March 21, 1872. Am'd. 1873-4, 220. Cal. Rep. Cit. 69, 127; 99, 308; 138, 425. Navigable waters boundaries.— Navigable waters enu- merated* ^=^f^ Pol. P-rulft RftTi}. ^34fi. 2249, 2351. 215 OBI^GATIONS OF OWNERS. §§ 831-84l> § 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. Ehi. March 21, 1872. Cal. R^. Cnt, 69, 206; 70, 540; 95, 665; 131, 99. Hi^way as boundary: See post, sec. 1112. § 832. Lateral and subjacent support. Each cotermi- nous owner is entitled to the lateral and subjacent sup- port which his land receives from the adjoining land, subject to t2ie right of the owner of the adjoining land to make proper and usual excavations on the same for pur- poses 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. En. March 21, 1872. Am'd. 1873-4, 221. Cal. Rep. Cit. 63, 271; 63, 272- 63, 273; 63, 274; 63, 276; 92, 98; 92, 603; 95, 499; 98, 348; 98, 349; 105, 57; 128, 503; 147, 611. i 833. Trees whose trunks are wholly on land of one. Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another. En. March 21, 1872. S 834. Line trees. Trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common. En. March 21, 1872. CHAPTER n. OBLIGATIONS OF OWNERa I 840. rmtics of tenant for life. § 841. Monuments and fences. § 842. Owners of ditch, flume, etc.; liability of one to the other. § 843. Neglect to pay proportion of expense; liability. § 840. Duties of tenant 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 assess- ments benefiting the whole inheritance. En. March 21, 1872. Cal. Rep. Cit. 136, 518. Rights of tenants for life: See sec. 818, ante. Decree declaring life estate terminated: Code Civ. Proc , sec. 1723. §§ 841-843 USES AND TRUSTS. 246 § 841. Monuments and fences. Ck)terminoiis 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 afterwards incloses it, he must refund to the other a just proportion of the value at that time, of any division fence made by the latter. Eu. March 21, 1872. Cal. Rep. Cit. 51, 297; 67, 593; 103, 45; 103, 117. Suibd. 2—119, 527. § 842. Owtiers of ditch, flume, etc.; liability of one to the other. When two or more persons are associated 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 grant- ors have contributed, he is liable to the others for the rea- sonable expenses of maintaining and repairing the same, and of distributing such water in proportion to the share to which he is entitled in the use of the water. En. Stats. 1905,600. The statute of 1889, pa^e 202, relating to the protection of owners of ditches and flumes, Is codified in the above sections. Section 3 of the statute Is not codified for the reason that any matter in it which should be retained is fully covered by the general rules of law.— Code Commissioner's Note. § 843. Neglect to pay proportion of expense, liability. It any one of them neglects, after demand in writing, to pay his proportion of such expenses, he is liaible therefor in an action for contribution, and in any judgment ob- tained against him interest from the time of such demand must be included. The action authorized by this section 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 plain- tiff may recover as costs, reasonaible counsel fees, to be fixed by the court. En. Stats. 1905, 600. See note to § 842, ante. TITLE IV. USES AND TRUSTS. § 90. What uses and trusts may exist. § 848. Right to possession of land creates legal ownership. (Repealed.) 5 S49. Certain trusts unaffected. (Repealed.) § 850. Trustees of estate for use of another take no interest. (Re- pealed. ) { 851. Preceding sections qualified. (Repealed.) 24T USES AND TRUSTS. 19 847-«2 § 852. Trust must be in writing. § 853. Transfer to one for money i>aid by aaotlier. § 854. Rigrhts of creditors. (Repealed.) § 855. Section 853 qualified. (Repealed.) § 856. Purchasers protected. § 857. For what purposes express tmata may be created. § 858. Vesting of mortgage powers. § 859. Profits of land liable to creditors tn certain casea, § 860. Exercise of vested powers. § 861. Creation of certain powers not prohibited. (Repealed.) § 862. And 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 grrantee or devisee of trust property. § 866. Interests remaining in grantor of express trust. § 867. Restraining disposition of trusts. § 868. Same. (Repealed.) § 869. Effect of omitting trust in conveyance. § 870. Certain sales, etc., by tmstees, vcrfd. § 871. When estate of trustee to cease. § 847. What uses and trusts may exist. Uses and trusts in relation to real property are those only which are spetiified in this title. Ehi. March 21, 1872. Cal. Rep. Cit. 58, 478; 58, 481; 80, 242; 107, 595; 116» 409; 124,421; 132,527; 132, 551 ; 132, 557; 140,51. Rules as to suspending power of alienation: Sees. 715, 716, 771, ante. Trusts for accumulation of income: Sees. 722-726, ante. Trusts in general: Sees. 2215-2224, post Trusts for third perscms: Sees. 2250-2289, post. § 848. Right to possession of land creates legal owner- ship. (Repealed.) En. March 21, 1872. Rep. 1873-4, 221. Cal. Rep. Cit 132, 535. § 849. Certain trusts unaffected. (Repealed.) En. March 21, 1872. Rep. 1873-4, 221. Oal. Rep. Cit 132, 535. § 850. Trustees of estate for use of another take no in- terest (Repealed.) En. March 21, 1872. Rep. 1873-4, 221. Cal. Rep. Cit 132, 535. § 851. Preceding sections qualified. (Repealed.) En. March 21, 1872. Rep. 1873-4, 221. Cal. Rep. Cit 132, 535. § 852. Trust must be In writing. No trust in relation to real property is valid unless created or declared: 1. By a written instrument, subscribed by the trustee, or by his agent thereto authorized by writing; §§ 853-857 USES AND TRUSTS. 241 2. By the instrument under which the trustee claims the estate affected; or, 3. By operation of law. En. March 21, 1872. Cal. Rep. Cit. 58, 483; 70, 452; 75, 526; 76, 471; 85, 446; 90, 607- 94, 72; 97, 261; 99, 314; 108, 656; 110, 5; 112, 284; 118, 107; 124, 421; 126, 192; 132, 27; 135, 279; 136, 96; 147, 389. Subd. 1—122, 427; 136, 155. Subd. 3—136, 634. § 853. Transfer to one for money paid by another. 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. En. March 21, 1872. Am'd. 1873-4, 221. Cal. Rep. Cit. 67, 256- 67, 327; 68, 120; 74, 91; 75, 170; 77, 338; 80, 518; 85, 446; 92, 13; 122, 116; 127,247; 132,28; 136,95; 136,96- 136,463; 138. 569; 142, 69; 144, 334; 144, 533; 146,' 137. § 854. Rights of creditors. (Repealed.) En. March 21, 1872. Rep. 1873-4, 221. § 855. Section 853 qualified* (Repealed.) £^ March 21, 1872. Rep. 1873-4, 221. § 856. Purchasers protected. No implied or resulting trust can prejudice the rights of a purchaser or encum- brancer of real property for value and without notice of the trust. En. March 21, 1872. Cal. Rep. Cit. 74, 91; 96, 307; 115, 335; 128, 365. Bona fide purchasers, rights of: See sec'. 2243, post Bona fide purchasers generally: See post, sec. 1214. § 857. For what purposes express trusts may be cre- ated. Express trusts may be created for any of the fol- lowing 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 sat- isfying 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 tor any shorter term, subject to the rules of title II of this part; or, USES AND TRUSTS. §§ 858-860 4. To receiye the rents and profits of real property, and ! to accumulate the same for the purposes and within the : limits prescribed by the same title. En. March 21, 1872. Am'd. 1873-4, 221. ERep. Cit. 58, 478; 58, 481; 58, 483; 76, 144; 79, 57; 80,242; 107,595- 108,648; 108,656; 121,385; I 124, 497; 130, 135; 132, 564. 132. 567; 135, 279;' 136, 103, 123, 144; 124, 420; 124, 421; 132, 527; 132, 528; 132, 559; 132, 624; 132, 625; 132, 626; 136, 155; 140, 52; 146, 747; 147, 102; 147, 103; 147, 389. Subd. 1—85, 506; 108, 646; 116, 409; 121, 382. Subd. 2—108, 644; 109, 330; 132, 623. Subd. 3—108, 644; 136, 102. Subd. 4—133, 423. plus of rents and profits: See sec. 859, post. Estate of trustee: See infra, sec. 863. § 858. Vesting of mortgage powers. Where a power to sell real property is given to a mortgagee, or other encum- brancer in an instrument intended to secure the payment of money, the power is to be deemed a part of the secur- ity, 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 ac- knowledged and recorded. En. March 21, 1872. Rep. 1873-4, 222. En. 1873-4, 222. Cal. Rep. Cit. 121, 384; 132, 557. § 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 accumu- lation is given, the surplus of such rents and profits, be- yond the sum that may be necessary for the education and support of the person for whose benefit the trust is cre- ated, is liable to the claims of the creditors of such per- son, in the same manner as personal property which can- not be reached by execution. En, March 21, 1872. Cal. Rep. Cit. 139, 641. § 860. Exercise of vested powers. 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 other- \, ise prescribed by the terms of the power. En. March 21, 1872. Rep. 1873-4, 222. En. 1873-4, 222. Cal. Rep. Cit. 132, 537; 132, 552; 132, 557; 132, 558. Death of cotrustee, the trust survives to the others: Sec. 2288, post §S 861-aS( USES AND TRUSTS. SO § 861. Creation of certain powers not proliibited. (R©- pealed.) En. March 21, 1872. Rep. 18734, 222, 223. Cal. Rep. Cit 132, 552. § 862. And land, etc., to descend to persons entitled. (Repealed.) Em. March 21, 1872. Rep. 1873-4, 223. Cal. Rep. dt. 132, 552. § 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 creation vests the whole estate in the trustees, suhject only to the execu- tion of the trust. The beneficiaries take no estate or inter- est in the property, but may enforce the performance of the trust. En. March 21, 1872. Cal. Rep. Cit. 70, 331; 79, 68; 85, 506; 87, 456; 107, 5^; 108, 648; 111, 636; 111, 638; 124, 537; 128, 9; 132, 536; 132, 539; 132, 576; 132, 577; 133, 422; 143, 271. Einforcing performance of the trust: See post, "Obliga- tion of Trustees," sees. 2228-2239, atd sees. 2258-2263. § 864. Autiior of trust may devise, etc. Notwithstand- ing anything contained in the last section, the author of a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong, in the event of the failure or termination of the trust, and may transfer or devise such property, subject to the execution of the trust. En. March 21, 1872. Cal, Rep. Cit. 70. 240; 70, 331; 70, 332; 87, 456; 111, 638; 121, 383; 132, 547; 132, 553; 132, 563; 132, 576; 136, 105; 146, 749. § 865. Title of grantee or devisee of trust property. The grantee or devisee of real property subject to a trust acquires a legal estate in the property, as against all per- sons except the trustees and those lawfully claiming un- der them. En. March 21, 1872. Cal. Rep. oit. 70, 240; 121, 383; 146, 749. § 866. Interests remaining in grantor of express trust. Where an express trust is created in relation to real prop- erty, every estate not embraced in the trust, and not other- wise disposed of, is left in the author of the trust or his successors. En. March 21, 1872. Cal. Rep. Cit. 70, 331; 109, 331; 124, 420; 132. 576; 136, ;05; 142, 16; 146. 749. 251 POWERS. §§ 867-671 § 867. Restraining disposition of trusts. The benefi- ciary 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. En. March 21, 1872. Am'd. 1873-4, 223. Cal. Rep. Cit. Ill, 637; 123, 422; 142, 17. Accumulations: See ante, sees. 722 et seq.; sec. 859. 868. Same. (Repealed.) En. March 21, 1872. Rep. 1873-4, 223. § 869. Effect of omitting trust in conveyance. Where an express trust is created in relation to real property, but is not contained or declared in the grant to the trustee, 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 trus- tee without notice, and for a valuable consideration. En. March 21, 1872. Am'd. 1873-4, 223. Cal. Rep. Cit. 125, 12. Purchaser, when charged with implied or resulting trust: See sec. 856, ante. § 870. Certain sales, etc., by trustees, void. Where a trust in relation to real property is expressed in the in- strument creating the estate, every transfer or other act of the trustees, in contravention of the trust, is absolutely void. En. March 21, 1872. Cal. Rep. Cit. 70, 331; 106, 534; 108, 649; 134, 645; 134, 657; 139, 594; 145, 164. § 871. Wliere estate of trustee to cease. When the purpose for which an express trust was created ceases, the estate of the trustee also ceases. En. March 21, 1872. Cal. Rep. Cit. 58, 72; 70, 331; 119, 409; 121, 384; 124, 420; 132, 575; 133, 52; 136. 105; 145, 163. TITLE V. POWERS. Title V, of part II, of division II, on Powers, of the Civil Code, embracing sections of said code from section 878 to 945, inclusive, is repealed. En. March 21, 1872. Rep. 1873-4, 223. »§ 878-942 * POWERS. § 878. Cal. Rep. Ctt 132, 557. § 880. Cal. Rep. at. 108, 185. § 894. Cal. Rep. Cit. 121, 384. § 895. Cal. Rep. Cit. 121, 384; 1S2, 557. § 900. Cal. Rep. Cit. 132, 557. § 942, Cal, Rep. Cit. 127, 56L PAET III. PERSONAL OR MOVABLE PROPERTY. Title I. Personal Property in General, §§ 946, 947. II. Particular Kinds of Personal Property, §§ 953, 954. TITLE I. PERSONAL PROPERTY IN GENERAL. § 946. By what law governed. § 947. Future interests in perishable property, how protected. (Re- pealed.) § 946. By what law governed. If there is no law to the contrary in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. En. March 21, 1872. Rep. 1873-4, 228. En. 1875-6, 78. Cal. Rep. Git. 105, 199; 105, 201. [§ 946 having been repealed by clerical error in 1874, was re-enacted at session of 1875-6.] § 947. Future Interests In perishable property, how pro- tected. (Repealed.) En. March 21, 1872. Rep. 1873-4, 223. TITLE 11. 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, §§ 991-994. CHAPTER I. THINGS IN ACTION. § 963. Thlngrs In action deflne\l. § 954. Transfer and survivorship. § 953. Things In action defined. A thing in action is a right to recover money or other personal property by a judicial proceeding. En. March 21, 1872. Am'd. 1873-4, 223. Cal. Rep. Cit. 123, 161; 143, 534; 144. 633. §§ 954-863 SHlPPINa. 864 § 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- tives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office. En. March 21, 1872. Cal. Rep. Cit. 144, 260; 144, 633. Transfer of obligations: Sec. 1458, post. Suing on choses in action: See Code Civ. Proc, sees. 367-369. 1582, 1583. CHAPTER II. SHIPPINQ. Article I. General Provisions, §§ 960-966. II. Rules of Navigation, §§ 970-978. ARTICLE I. GENERAL. PROVISIONS. I 960. Definition of a ship. 5 961. Appurtenances and equipments. I 962. Foreign an-d domestic navigation. § 968. Foreign and domestic ships dlstingruished. § 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 co-de, includes steamboats, sail- ing vessels, canal boats, barges, and every structure adapted to be navigated from place to place for the trans- portation of merchandise or persons. En. March 21, 1872. Am'd. 1873-4, 224. § 961. Appurtenances and equipments. All things, be- longing to the owners, which are on board a ship, and are connected with its proper use, for the objects of the voy- age and adventure in which the ship is engaged, are deemed its appurtenances. En. March 21, 1872. § 962. Foreign and domestic navigation. Ships are en- gaged either in foreign or domestic navigation, or in the fisheries. Ships are engaged in foreign navigation when passing to or from a foreign country; and in domestic navigation, when passing from place to place within the United States. En. March 21, 1872. § 963. Foreign and domestic ships distinguished. 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. En. March 21, 1872. 255 SHIPPINQ. Sg 964-yro § 964. Several owners. If a ship belong to several per- sons, not partners, and they differ as to its use or repair, the controversy may be determined by any court of compe- tent jurisdiction. En. MarY. § § 1262, 1263 CHAPTER II. HOMESTEAD OF THE HEAD OF A FAMTLT. § 1262. Mode of selection. § 1263. Declaration of homestead must contain what. § 1264. Declaration must be recorded. § 1265. Tenure by which homestead is held. § 1262. Mode of selection. In order to select a home- stead, the husband or other head of a family, or in ease 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 home- stead, and file the same for record. En. March 21, 1872. Am'd. 1873-4, 230. Cal. Rep. Cit. 62, 135; 62, 137; 62, 138; 66, 458; 76, 529; 76, 644; 79, 205; 98, 148; 108, 219; 110, 203; 121, 585; 126, 528. Declaration of homestead: See next section. "Selection by wife: See ante, sees. 1238, 1239. Place of recording: See sec. 1264, infra. § 1263. Declaration of homestead must contain what, The declaration of homestead must contain: 1. A statement, showing that the person making it is the head of a family, and, if the claimant is married, the name of the spouse; or, when the declaration is made by 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. En. March 21, 1872. Am'd. 1873-4, 231; 1905, 604. The change consists in the insertion of the words "and if the claimant is married the name of the spouse," after "family."— Code Commis- sioner's Note. Cal. Rep. Cit 52, 635; 54, 618; 54, 620; 55, 136; 56, .527; 62, 135; 62, 136; 62, 137; 62, 138; 65, 343; 66, 458; 69, 198; 71, 303; 71, 304; 76, 525; 76, 644; 79, 204; 82, 228; 83, 30; 92, 4; 98, 148; 108, 219; 110, 203; 121, 585; 122, 113. Snbd. 1—126, 528. Suhd. 2—141, 500. Subd. 3—141, 500. Head of a family: See ante, sec. 1261. Residence necessary: See sec. 1237. |§ 12M-l2o7 HOMESTEAD OF OTHER PERSONS. 800 § 1264. Declaration must be recorded. The declaration must be recorded in the office of the recorder of the county in which the land is situated. En. March 21, 1872. Cal. Rep. Cit. 98, 148; 110, 203. Duty of recorder: See Pol. Code, sec. 4235. § 1265. Tenure by which homestead is 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 com- munity property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the pro- visions of this title; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the superior court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner, except as provided in this title. En. March 21, 1872. Am'd. 1873-4, 231; 1880, 8. Cal. Rep. Cit. 50, 543; 52, 296; 52, 297; .2, 298; 54, 501; 64, 398; 76, 531; 76, 644; 78, 312; 78, 474; 79, 205; 81, 219; 81, 243; 82, 10; 83, 442; 85, 74; 85, 621; 86, 120; 86, 138; 86, 153; 92, 371; 92, 519; 98, 148; 98, 478; 100, 451; 102, 341; 108, 654; 111, 483; 113, 30; 118, 300; 118, 301; 121, 269; 121, 653; 132, 611; 139, 72; 139, 151; 144, 147. Descent of homestead: See Code Civ. Proc., sees. 1474, 1475. Property exempt from execution to be set apart for family: Code Civ. Proc, sees. 1465-1470. Homestead set apart by probate court: Code Civ. Proc., sees. 1474 et seq. CHAPTER in. HOMESTEAD OF OTHEai PERSONS. § 1266. Mode of selection. § 1267. Declaration of homestead. § 1268. Declaration must be recorded. § 1269. EfEect of filing for record the declaration of homestead. § 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 home- stead." En. March 21, 1872. Cal. Rep. Cit. 86, 141. >01 HOMESTEADS OF INSANE PERSONS. §§ 1267, 1269a § 1267. Declaration of homestead. The declaration must contain everything required by tlie second, third, and fourth subdivisions of section 1263. En. March 21, 1872. § 1268. Declaration must be recorded. The declaration must be recorded in the office of the county recorder of the county in which the land is situated. En. March 21, 1872. Duty of recorder: See Pol. Code, sec. 4235. § 1269. Effect of filing for record the declaration of homestead. From and after the time the declaration is filed for record, the land described therein is a homestead. En. March 21, 1872. Cal. Rep. Cit. 82, 228; 86, 141. CHAPTER IV. Chapter added March 22, 1905. Stats. 1905, 725. ALIENATION OF HOMESTEADS OF INSANE PERSONS. { 1269a. Petition for sale or mortgage of homestead where husband or wife is insane. § 1269b. Notice of application for order. § 1269c. Which an order may be made to sell or mortgage tlie home- stead of an insane person. § 1269a. Petition for sale or mortgage of homestead where husband or wife is insane. In case of a homestead, if either the husband or wife becomes hopelessly insane, the husband or wife not insane may petition the superior court of the county in which such homestead is situated for an order permitting the husband or wife, not insane, to sell and convey, or mortgage, such homestead to raise moneys to satisfy a lien or charge thereon, or to provide for the support and care either of the sane or insane spouse, or of their minor children. Such petition must be subscribed and sworn to by the applicant, setting forth the name and age of the insane husband or wife; the num- ber, age, and sex of the children, if any, of such insane husband or wife; a description of the premises constitut- ing the homestead; the value of the same; the county in which it is situated; and such facts, in addition to that of the insanity of the husband or wife, relating to the cir- cumstances and necessities of the applicant and his or her family, as he or she may rely upon in support of the petition. En. Stats. 1905, 725. The statute of 1873-4. page 582, relating to homesteads belonging to m- sane persons, is codified in the above sections, which are Placed m a new chapter, entitled "AlienaUon of Homesteads of Insane Persons. Code Commissioner's Note. §§ 1269b, 12690 HOMESTEADS OP INSANE PERSONS. 30! § 1269b. Notice of application for order. Notice of the application for such order must be given by publication of the same, in a newspaper published in the county in which such homestead is situated, if there is a newspaper pub- lished therein, once each week for three successive weeks, prior to the hearing of such application, and a copy of such notice must also be personally served upon the nearest male relative of such insane husband or wife, resident in this state, at least three weeks prior to such application; and in case there is no such male relative known to the applicant, a copy of such notice must be so served upon the public administrator of the county in which such home- stead is situated; and in such case it is the duty of such public administrator to appear and represent the interests of such insane person. For all such services rendered by the public administrator he must be allowed a reasonable fee, to be fixed by the court, and the same must be taxed as costs afgainst the person making application for the order herein provided for. En. Stats. 19Q5, 726. See note to § 1269a, ante. § 1269c. When an order may be made to sell or mort- gage the iiomestead of an insane person. If it appears to the court that such husband or wife is hopelessly insane, the court may make an order permitting the husband or wife, not insane, to sell and convey, or mortgage, such homestead, and thereafter any sale, conveyance, or mort- gage made in pursuance of such order is as valid and ef- fectual as if the property affected thereby was the abso- lute property of the person making such sale, conveyance, or mortgage. If a sale is ordered it must be reported to and confirmed by the court. Such husband or wife must, before executing any mortgage or conveyance, give a bond, to be approved by the judge of the court, in double the amount of the mortgage, or double the value of the prop- erty to be sold, conditioned to account for the proceeds of the mortgage or sale amd to apply such proceeds only as the court may direct. En. Stats. 1905, 726. See note to § 1269a, ante. lOS EXECUTION AND REVOCATION OF WILI^. TITLE VI. WILLS. Chapfter I. Execution and Revocation of Wills, §§ 1270- 1313. n. Interpretation of Wills, §§ 1317-1351 in. General Provisions Relating to Wills, §§ 1357- CHAPTER I. EXECUTION AND REVOCATION OP WILLS. § 1270. Who may make a wilL § 1271. Monomaniac incompetent. (Repealed.) I 1272. Will, or part thereof, procured by fraai, § 1273. Will of married women. § 1274. What may pass by will. § 1275. Who may take by will. I 1276. Written will, how to be executed, § 1277. Definition of an olographic wiU. § 1278. Witness to add residence. § 1279. Mutual will. § 1280. Competency of subscribing witness. § 1281. Conditional will. § 1282. Gifts to subscribing witnesses void. Creditors competent wlt- § 1283. Witness who is a devisee, and who would be entitled to share of testator's estate if no wiU, entitled to share to amount of devise. § 1284. Will made out of this state. (Repealed.) I 1285. Will made out of state. § 1288. Subsequent change of domicile. (Repealed.) § 1287. Republication by codicil. 5 1288. Ntmcupative will, how to be executed, § 1289. Requisites of a valid nuncupative wiU. § 1290. Proof of nuncupative wills. § 1291. Probate of nuncupative wills. I 1292, Written will, how revoked. § 1293. Evidence of revocation. § 1294. Revocation by obliteration on face of will. (Repealed.) § 1295. Revocation of duplicate. § 1296. Revocation by subsequent will. § 1297. Antecedent not revived by revocation of mibsequeat will. § 1298. Revocation by marriage and birth of issue. § 1299. Effect of marriage of a man on his will. § ISOO. Effect of a marriage of a woman on her wllL § 1301. Contract of sale not a revocation. § 1302. Mortgrage not a revocation of will. § 1303. Conveyance, when not a revocation, § 1304. When it Is a revocation. § ia)5. Revocation of codicils. § 1306. Afterbom chiM, unprovided for, to succeed. § 1307. CJhildren or Issue of children of testator unprovided for by his will. § 120&. Share of afterbom child, out of what part of estate to be paid. § 1309. Advancement during lifetime of testator. § 1310. Death of devisee, being relation of testator, In lifetime of testa- tor, leaving lineal descendants. § 1311. Devises of land, how construed. § 1312. Will to pass rights acquire-d after the making thereof. § 1313. Restriction on devise for charitable uses. S§ 127&-1276 BaSBCUTION AND BETV^OCATION OF WILJ-S. 304 § 1270. Who may make a will. Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in title VII of this part, being chargeable in both cases with the payment of all the decedent's debts, as provided in the Code of Civil Procedure. En. March 21, 1872. Cal. Rep. Cit, 58, 516; 140, 289. Wills of married women: See sec. 1273. Wills of unmarried women revoked by marriage: Sec. 1300, infra. Validity of will: See sections on execution of wills, sees. 1276, 1376. § 1271. Monomaniac incompetent. (Repealed.) En. March 21, 1872. Rep. 1873-4, 232. § 1272. Will, or part thereof, procured by fraud. A will, or a part of a will, procured to be made by duress, menace, fraud, or undue influence, may be denied probate; and a revocation, procured by the same means, may be declared void. En. March 21, 1872. Contest of will: See Code Civ. Proc., sec. 1312. Undue influence as affecting contracts: See post, sec. 1575. Revocation of will: Post, sec. 1292. Contestin'g probate of will: Code Civ. Proc, sees. 1312 et seq.; after probate: Code Civ. Proc, sees. 1327, et seq. § 1273. Will of married women. A married woman may dispose of all her separate estate by will, without the con- sent of her hu^and, and may alter or revoke the will in like manner as if she were single. Her will must be exe- cuted and proved in like manner as other wills. En. March 21, 1872. Am'd. 1873-4, 232. Cal. Rep. Cit. 70, 142. § 1274. What may pass by will. EJvery estate and in- terest in real or personal property, to which heirs, hus- band, widow, or next of kin might succeed, may be dis- posed of by will, except as otherwise provided in sections 1401 and 1402. En. March 21, 1872. Cal. Rep. Cit. 112, 395. 9 1275. 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 corpora- tions other than counties, municipal corporations, and corporations formed for scientific, literary, or solely edu- 305 EXECUTION AND REVOCATION OF WILI^S. §§ 1276, 1277 cational or hospital purposes, cannot take under a will, unless expressly authorized by statute; subject, however, to the provisions of section thirteen hundred and thirteen. En. March 21, 1872. Am'd. 1873-4, 275; 1903, 258; 1905, 605. The change consists in the insertion of the word "that" before "corpo- ration," and in the insertion of the words "counties, municipal cor- porations and corporations" after "that." The amendment in sub- stance incorporates into the section the provisions of the act of 1881, page 2, authorizing the several counties, cities and counties, cities and towns, of the state, to receive property by gift, bequest and 'devise.— Code Commissioner's Note. Cal. Rep. Clt. 59, 131; 60, 309; 63, 621; 123, 624. Charitable uses, validity of: See post, sees. 1313 et seq., ante, sec. 847. § 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 will, and a nuncupa- tive will, must be executed and attested as follows: 1. It must be subscribed at the end thereof by the tes- tator himself, or some person in his presence and by his direction must suTDscribe his name thereto; 2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority; 8. The testator must, at the time of subscribing or ac- knowledging the same, declare to the attesting witnesses that the instrument is his will; and, 4. There must be two attestin-g witnesses, each of whom must sign the 9am e as a witness, at the end of the will, at the testator's request, and in his presence. En. March 21, 1872. Am'd. 1905, 605. The change consists in the substitution of the words "the same" In place of "his name" after "sign." The purpose of the amendment is to avoid the stlct construction given to subdivision 4 in Estate of Walker, 110 Cal. 387.— Code Commissioner's Note. Cal. Rep. Cit. 54, 517; 68, 519; 96, 600; 107, 6; 110, 390; 142, 375; 145, 409; 146, 460; 146, 461; 146, 465. See sec. 1278, infra. Olographic will: See sec. 1277, infra. Ck)njoint or mutual will: See sec. 1279, Infra. Nuncupative will: See sees. 1288-1291. Execution of foreign will: See post, sec. 1285. § 1277. Definition of an olographic will. An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other Civil Code— 20 §§ 1278-1283 EXECUTION AND REVOCATION OF WILLS. 306 form, and may be made in or out of this state, and need not be witnessed. En. March 21, 1872. Cal. Rep. Cit. 58, 532; 61, 475; 64, 427; 70, 143; 100, 207; 112, 519; 135, 29; 145, 83; 145, 409. May be proven in same manner as other private writ- ings: Code Civ. Proc, sec. 1309. § 1278. Witness to add residence. A witness to a writ- ten will must write, with his name, his place of residence; 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 validity of the will. En. March 21, 1872. Cal. Rep. Cit. 54, 518. § 1279. Mutual will. A conjoint or mutual will is valid, but it may be revoked by any of the testators, in like man- ner with any other will. En. March 21, 1872. § 1280. Campetency of subscribing witness. If the sub- scribing witnesses to a will are competent at the time of attesting its execution, their subsequent incompetency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise satis- factorily proved. En. March 21, 1872. § 1281. Conditional will. A will, the validity of which is made by its own terms conditional, may be denied pro- bate, according to the event, with reference to the condi- tion. En. March 21, 1872. Conditional devises and bequests: See post, sees. 1345 et seq. § 1282. Gifts to subscribing witnesses void. Creditors competent witnesses. 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 com- petent subscribing 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 compe- tent witnesses to his will. En. March 21, 1872. Cal. itep. Cit. 120, 315. § 1283. Witness wlio Is a devisee, and who would be entitled to share of testator's estate if no will, entitled to share to amount of devise. If a witness, to whom any beneficial devise, legacy or gift, void by the preceding sec- tion, is made, would have been entitled to any share of the 8OT EXlX:UTlON AND REVOCATION OF WILLS. g§ 1284-1289 estate of the testator, in case the will should not be estab- lished, 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 pro- portion to and out of the parts devised or bequeathed to them. En. March 21, 1872. Am'd. 1873-4, 232. § 1284. Will made out of this state. (Repealed.) En. March 21, 1872. Rep. 1873-4, 232. § 1285. Will made out of state. 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 country in which the testator is domiciled at the time of his death, and valid as a will under the laws of such state or country, is valid in this state so far as the same relates to personal property, sub- ject, however, to the provisions of section thirteen hun- dred and thirteen. En. March 21, 1872. Am'd. 1873-4, 232; 1905, 606. The change conaists In the Insertion of all the matter after the word "chapter," the purpose being merely to state what has always been understood to be the rule in this state respecting bequests of personal property, viz. : that It mar be bequeathed in accordance with the law of the testator's domicile.— Code Commissioner's Note. Probate of foreign wills: Code Civ. Proc, sec. 1322. § 1286. Subsequent change of domicile. (Repealed.) En. March 21, 1872. Rep. 1873-4, 232. § 1287. Republication by codicil. The execution of a codicil, referring to a previous will, has the effect to re- publish the will, as modified by the codicil. En. March 21, 1872. Cal. Rep. Cit. 94, 673; 138, 434; 138, 435; 138, 436; 138, 438. § 1288. Nuncupative will, how to be executed. A nun- cupative will is not required to be in writing, nor to be declared or attested with any formalities. En. March 21, 1872. How admitted to probate: Cdde Civ. Proc, sec. 1344. Probating nuncupative wills: See sees. 1290, 1291, infra. § 1289. Requisites of a valid nuncupative will. To make a nucupative will valid, and to entitle it to be ad- mitted to probate, the following requisites must be ob- served; §§ 129C-1292 EXECUTION AND REVOCATION OF WILLS. 308 1. The estate bequeathed must not exceed in value the sum of one thousand dollars. 2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time to bear witness that such was his will, or to that effect. 3. The decedent must, at the time, have been in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear, or peril of death, or the decedent must have been, at the time, in expectation of immediate death from an injury received the same day. En. March 21, 1872. Am'd. 1873-4, 233. § 1290. Proof of nuncupative wills. No proof must he received of any nuncupative will unless it is offered with- in six months after speaking the testamentary words, nor unless the words or the substance thereof, were reduced to writing within thirty days after they were spoken. En. March 21, 1872. Probate of nuncupative will: See Code Civ. Proc, sec. 1344. § 1291. Probate of nuncupative 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 testamenary words, or the substance thereof, be first committed to writing, and process issued to call in the widow, or other persons Interested, to contest the probate of such will, if they think proper: En. March 21, 1872. Time of probate: See Code Civ. Proc, sec. 1345. § 1292. Written 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 testator, declaring sucxi 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 de- stroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction. En. March 21, 1872. Gal. Rep. Cit. 50, 601; 101, 614; 107, 5; 107, 6; 108, 690; 122, 229; 138, 436. tW EXECUTION AND REVOCATION OF WILLS. § §1295-1299 § 1293, Evidence of revocation. Wtien a will is can- celed 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. En. March 21, 1872. § 1294. Revocation by obliteration on face of will. (Re- pealed.) En. March 21, 1872. Rep. 1873-4, 233. § 1295. Revocation of duplicate. The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. En. March 21, 1872. § 1296. Revocation by subsequent will. A prior will is not revoked by a subsequent will, unless the latter con- tains an express revocation, or provisions wholly incon- sistent 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. En. March 21 1872 Cal. Rep. Cit. 104, 568. § 1297. Antecedent not revived by revocation of subse- quent will. If, after making a will, the testator duly makes and executes a second will, the destruction, cancellation, or revocation of such second will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first Till, or unless, after such destruction, cancellation, or revocation, the first will is duly republished. En. March 21 1872 Cal. Rep. Cit. 108, 690. § 1298. Revocation by marriage and birth of Issue. If, after having made a will, the testator marries, and has issue of such marriage, bom either in his lifetime or after his death, and the wife or issue survives him, the will is revoked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evi- dence to rebut the presumption of such revocation can be received. En. March 21, 1872. Cal. Rep. Cit. 65, 52; 107, 7. § 1299. Effect of marriage of a man on his will. If, after making a will, the testator marries, and the wife sur- vives the testator, the will is revoked, unless provision has §§ 1300-1304 EXECUTION AND REVOCATION OF WILLS. 31C been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned there- in as to show an intention not to make such provision; and no other evidence to rebut the presumption of revoca- tion must be received. En. March 21, 1872. Cal. Rep. Cit. 65, 52; 87, 647; 87, 648; 107, 7. § 1300. Effect of a marriage of a woman on her will. A will, executed by a woman, is revoked by her subsequent marriage, and is not revived by the death of her husband. En. March 21, 1872. Cal. Rep. Cit. 107, 5; 107, 7. § 1301. Contract of sale not a revocation. An agree- ment made by a testator, for the sale or transfer of prop- erty disposed of by a will previously made, does not re- voke such disposal; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise against the de- .visees or legatees, as might be had against the testator's successors, if the same had passed by succession. En. March 21, 1872. § 1302. Mortgage not a revocation of will. A change or incumbrance upon any estate, for the purpose of secur- ing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed; but the devise and legacies therein contained must pass, subject to such charge or incumbrance. En. March 21, 1872. § 1303. Conveyance, when not a revocation. A convey- ance, settlement or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise de- volve by succession. En. March 21, 1872. See post, sees. 1304, 1310. Ademption of legacies: See post, sec. 1357. § 1304. When It is a revocation. If the instrument by which an alteration is made in the testator's interest in a thing previously disposed of by his will expresses his in- tent that it shall De a revocation, or if it contains provi- sions wholly inconsistent witli th^ terms and nature of tlie 311 EXECUTION AND RJiiVOCATiOAT r\T^ WILLS. §§ l«)5-130f testamentary disposition, it operates as a revocation there- of, unless such inconsistent provisions depend on a condi- tion or contingency by reason of which they do not take effect. En. March 21, 1872. § 1305. Revocation of codicils. The revocation of a will revokes all its codicils. En. March 21, 1872. § 1306. Afterborn child, unprovided for, to succeed. Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his . will, the child succeeds to the same portion of the tes- tator's real and personal property that he would have suc- ceeded to if the testator had died intestate. But such succession does not impair or affect the validity of any sale of property made by authority of such will in accord- ance with the provisions of section fifteen hundred and sixty-one of the Code of Civil Procedure. En. March 21, 1872. Am'd. 1905, 606. The change consists in the addition of the last sentence, and is intended to change the rale of Smith v. Olmsteard, 83 Cal. 582.— Code Commis- sioner's Note. Cal. Rep. Cit. 57, 490; 88, 585; 113, 376; 145, 120. § 1307. Children or Issue of children of testator unpro- vided for by his will. When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, has the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the pre- ceding section. But such succession does not impair or affect the validity of any sale of property made by au- thority of such will in accordance with the provisions of section fifteen hundred and sixty-one of the Code of Civil Procedure. En. March 21, 1872. Am'd. 1905, 606. The change consists in the addition of the last sentence. (See note to preceding section.)— Code Commissioner's Note. Cal. Rep. Cit. 57, 489; 57, 491; 81, 575; 83, 328; Se, 443; 88, 585; 99, 647; 107, 616; 119, 573; 140, 289; 140, 291; 140, 292; 140, 470. § 1308. Share of afterborn child, out of what part of estate to be paid. When any share of the estate of a, eS i^o_i?ii 135CEOX7XIUJN AND REVOCATION OF WILLS. 313 testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient so much as may be necessary must be taken from all the devisees or legatees, in pro- portion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest, or other pro- vision in the will, would thereby be defeated; in such case, such specific devise, legacy, or provision may be exempted from such apportionment, and a different appor- tionment, consistent with the intention of the testator, may be adopted. En. March 21, 1872. Cal. Rep. Cit. 140, 292; 145, 121; 145, 122. § 1309. Advancement during lifetime of testator. If such children, or their descendants, so unprovided for, had an equal proportion of the testator's estate bestowed on them in the testator's lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections. En. March 21, 1872. Advancements, question of, when raised: See Code Civ. Proc, sec. 1686. Advancements in cases of intestacy: See sees. 1395-1399. § 1310. Death of devisee, being relation of testator, In lifetime of testator, leaving lineal descendants. When any estate is devised or bequeathed to any child, or other relation of the testator, and the devisee or legatee dies be- fore the testator, leaving lineal descendants, such de- scendants take the estate so given by the will, in the same manner as the devisee or legatee would have done had he survived the testator. En. March 21, 1872. Am*d 1905, 150. The provisions of this section are new, and are limited to cases 'vrhere a conviction for murder in the first degree has been had. — Code Com- missioner's Note. The code commissioner probably Intended this note to be to § 1409. See post. § 1409. Cal. Rep. Cit. 139, 89; 140, 289; 140, 290; 140, 291. **By right of representation" defined: Post, sec. 1403. Death of legatee — ^Legacy fails, when: See sees. 1343, 1344. § 1311. Devises of land, how construed. Every devise of land in any will conveys all the estate of the devisor m EXECUTION AND REVOCATION OF WILLS. §§ 1312, 13 IS therein, which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate. En. March 21, 1872. Cal. Rep. Cit. 147, 242. See ante, sec. 1303. § 1312. Will to pass rights acquired after the making thereof. Any estate, right, or interest, in lands acquired by the testator after the making of his will, passes thereby and in like manner as if title thereto was vested in him at the time of making the will, unless t-he contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms devis- ing, or in any other terms denoting the intent of the tes- tator to devise all the real estate of such testator, passes all the real estate which such testator was entitled, to de- vise at the time of his decease. En. March 21, 1872. Am'd. 1873-4, 233. Testamentary dispositions vest at testator's death: Post, sec. 1341. § 1313. Restriction on devise for charitable uses. No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society, or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made, at least thirty days prior to such death, such devise or legacy, and each of them, shall be valid; provided, that no such devises or bequests shall collectively exceed one- third of the estate of the testator leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law. En. Stats. 1873-4, 275. Cal. Rep. Cit. 58, 470; 58, 484; 58 485; 58, 511; 58, 514; 58, 516; 58, 517; 63, 622; 94, 378; 94, 379; 98, 606; 98, 611; 105, 647; 123, 624; 126, 301; 127, 96; 128, 12; 138, 434; ±38, 436; 138, 547; 138, 548; 138, 550; 138, 557. Charitable uses permitted by the codes: See ante, sees. 847 et seq. §§ 1211, 1318 INTERPRETATION OP WILLS. CHAPTER II. INTERPRETATION OP WILLS, AND EFFECT OP VARIOUS PRO* VISIONS. § 1317. Testator's inteHtlon to be caxrled out. § 1318. Intention to be ascertained from the wllL § 1319. Rules of Interpretation. § 1220. Several instruments are to b© taken together. § 1321. Harmonizing various parts. § 1322. In what case -devise not affected. § 1323. When ambiguous or doubtful. § 1324. Words' taken in ordinary sense. § 1325. Words to receive an operative constructiim. § 1326. Intestacy to be avoided. § 1327. Effect of technical words. § 1328. Technical words not aecessary. § 1329. Certain words not necessary to pass a fee. § 1330. Power to devise, how executed by terms of will. § 1331. Devise or bequest of all real or all personal property, or both. § 1332. Residuary clause. § 1333. Same. § 1334. "Heirs," "relatives," "issue," "descendants," etc. § 1335. Words of donation and of limitation. § 1336. To what time words refer. § 1337. Devise or bequest to a class. § 1338. When conversion takes efEect. I 1339. When child born after testator's death takes tmder wUL § 1340. Mistakes and omissions. § 1341. When 'devises and bequests vest. § 1342. When cannot be divested. § 1343. Death of devisee or legateee. § 1344. Interests in remainder are not affected. § 1345. Conditional devises and bequests. § 1346. Condition precedent, what. § 1347. Effect of condition precedent. § 1348. Conditions precedent, when deemed p«formcd. § 1349. Condition subsequent, what. I 1350. Devisees, etc., take as tenants in common. § 1351. Advancements, when ademptions. § 1317. Testator's intention to be carried out. A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible. En. March 21, 1872. Cal. Rep. Cit. 58, 404; 74, 868; 99, 648; 123, 625; 128, 11; 132, 566; 132, 567; 135, 29; 136, 83; 138, 436; 139, 686; 142, 375. Construction of will made before the code went into effect not affected by the code: Post, sec. 1375. Construction of foreign will: Post, sec. 1376. Declarations of testator as evidence: See next section. § 1318. Intention to be ascertained fronn tlie will. In case of uncertainty arising upon the face of a will, as to 315 INTERPRETATION OF WILLS. §§ 1319-1324 the application of any of its provisions, the testator's in- tention is to be ascertained from the words of the will taking into view the circumstances under which it was made exclusive of his oral declarations. En. March 21, 1872. Cal. Rep. Cit. 58, 404; 81, 243; 107, 308; 108, 659; 128, 341; 123, 342; 129, 453; 129, 454; 132, 176; 132, 669; 141, 299; 142, 375; 143, 456; 145, 123. § 1319. Rules of interpretation. In interpreting a will, subject to the law of this state, the rules prescribed by the following sections of this chapter are to be observed, unless an intention to the contrary clearly appears. En. March 21, 1872. Cal. Rep. Cit. 139, 89. § 1320. Several instruments are to be taken together. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument. En. March 21, 1872. Cal. Rep. Cit. 104, 568. § 1321. Harmonizing 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 wnere several parts are absolutely irreconcilable, the latter must prevail. En. March 21, 1872. Cal. Rep. Cit. 58, 404; 94, 674; 132, 668; 138, 435. § 1322. In what case devise not affected. A clear and distinct devise or bequest cannot be affected by any rea- sons 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. En. March 21, 1872. Cal. Rep. Cit. 73, 103; 127, 97; 132, 672; 142, 7. Intention of testator: See sees. 1317 et seq. § 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. En. March 21, 1872. § 1324. Words taken in ordinary sense. The words of ^ will are to be taken in their ordinary and gramma,tical §§ 1325-1330 INTERPRETATION OF WILLS. ^1<5 sense, unless a clear intention to use them in anothei sense can be collected, and that other can be ascertained En. MarcH 21, 1872. Cal. Rep. Cit. 58, 404; 74, S68; 123, 143; 132, 671; 141, 300. § 1325. Words to receive an operative construction The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative. En. March 21 1872 Cal. Rep. Cit' 58, 404; 99, 648; 132, 177; 142, 375. See ante, sec. 1321. § 1326. Intestacy to be avoided. Of two modes of in- terpreting a will, that is to be preferred which will prevent a total intestacy. En. March 21, 1872. Cal. Rep. Cit. 104, 568; 123, 143; 123, 343; 132, 566; 139, 686; 142, 375; 145, 86; 147, 153. § 1327. Effect of technical words. Technical words 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 tech- nical sense. En. March 21, 1872. Am'd. 1905, 606. The change consists in the addition of the clause following the word "intention," and provides that the words in a will need not be taken in a technical sense, if it appears to have been drawn by the testator, and that he was unacquainted with such sense. — Code Commissioner's Note. Cal. Rep. Cit. 74, 368. § 1328. Technical words not necessary. Technical words are not necessary to give effect to any species of disposition by a will. En. March 21, 1872. § 1329. Certain words not necessary to pass a fee. The term **heirs" or other words of inheritance, are not requi- site to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. En. March 21, 1872. Cal. Rep. Cit. 138, 440. Words of succession not necessary to transfer a fee: See ante, sec. 1072. § 1330. Power to devise, how executed by terms of will. Real or personal property embraced in a power to devise SI? nrrBRPRETATION OF WILLS. §§ 1331-1335 passes by a will purporting to devise all the real or per- sonal property of the testator. En. March 21, 1872. Cai. Rep. Cit. 107, 598; 132, 558; 145, 346. § 1331. Devise or bequest of all real or all personar property, or both. A devise or bequest of all the testator's 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. En. March 21, 1872. Cal. Rep. Cit. 81, 242. See ante, sees. 1303, 1311, 1312, General and specific legacies: See post, sec. 1367. § 1332. Residuary clause. 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. En MarcH 21, 1872. Am'd. 1873-4, 234. Cal. Rep. Cit. 107, 416; 127, 92; 142, 7; 147, 152. § 1333. Same. A bequest of the residue of the testa- tor'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. fin. March 21, 1872. Am'd. 1873-4, 234. Cal. Rep. Cit. 107, 416; 127, 92; 142, 6; 142, 7. § 1334. "Heirs," ''relatives," "Issue," "descendants," etc. A testamentary disposition to "heirs," "relations," "nearest relations," "representatives," "legal represen- tatives," or "personal representatives," or "family," "is- sue," "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 limi- tation, 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. En. March 21, 1872. § 1335. Words of donation and of limitation. 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. En. March 21, 1872. Rule of Shelley's case not adopted in this state: See ante, sec 779. § 1336-1341 INTERPRETATION OF WILLS. 5l8 § 1336. To what time words refer. 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 possession. En. March 21, 1872. Cal. Rep. Cit 114, 190. § 1337. Devise or bequest to a class. A testamentary disposition to a class includes every person answering the description at the testator's death; but when the posses- sion is postponed to a future perio-d, it includes also all persons coming within the description before the time to which possession Is postponed. En. March 21, 1872. Cal. Rep. Cit. 79, 615; 119, 410; 132, 578. Posthumous children: See infra, sec. 1339. § 1338. When conversion takes effect. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property from the time of the testator's death. En. March 21, 1872. Cal. Rep. Cit. Ill, 638: 148, 270; 144, 127. § 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 dis- position to a class vests in right or in possession, takes, if answering to the description of the class. En. March 21, 1872. Cal. Rep. Cit. 132, 580. Child en ventre sa mere: See ante, sec. 29. § 1340. Mistakes and omissions. When, applying a will, it is found that there is an imperfect description, or that no person or property exactly answers the descrip- tion, mistakes and omissions must be corrected!, if the error appears from the context of the will or from ex- trinsic evidence; but evidence of the declarations of the testator as to his intentions cannot be received. En. March 21, 1872. Cal. Rep. Cit. 108, 659; 119, 575; 123, 341; 127, 94; 142, 374; 142, 376. § 1341. When devises and bequests vest. Testamen- tary dispositions, including devises and bequests to a per- trb INTB3RPRBTATION OF WILJl^. §§ 1342-134J* Bon on attaining majority, are presumed to vest at the testator's death. En. March 21, 1872. Cal. Rep. Cit. 78, 102; 122, 627; 132, 578; 187, 855. § 1342. When cannot be divested. A testamentary dis- position, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. En. March 21, 1872. § 1343. Death of devisee or 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. En. March 21, 1872. Am'd. 1373-4, 234. Cal. Rep. Cit. 98, 606; 134, 824; 189, 89; 140, 290. § 1344. Interests In remainder are not affected. The death of a devisee or legatee of a limited interest before the testator's death does not defeat the interests of persons in remainder, who survive the testator. En. March 21, 1872. § 1345. Conditional devises and bequests. A condi* tional disposition is one which depends upon the occur- rence of some uncertain event, by which it is either to take effect or be defeated. En. March 21, 1872. Conditions of ownership: See ante, sees. 707 et seq. Conditional obligations: See post, sees. 1434 et seq. § 1346. Condition precedent, what. A condition pre- cedent in a will is one which is required to be fulfilled before a particular disposition takes effect. En. March 21, 1872. § 1347. Effect of condition precedent. Where a testa- mentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where su'^h fulfillment is impossible, in which case the disposi- tion vests, unless the condition was the sole motive there- of, and the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execu- tion of the will. En. March 21, 1872. § 1348. Conditions precedent, when deemed performed. A condition precedent in a will is to be deemed performed §§ 1349-1357 GENERAL PROVISIONS. SBO when the testator's intention has been substantially, though not literally, complied with. En. March 21. 1872. ' § 1349. Condition subsequent, what. A condition sub- sequent is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event. En. March 21, 1872. Cal. Rep. Cit. 98, 381. § 1350. Devisees, etc., take as tenants In common. A devise or legacy given to more than one person vests in them as owners in common. En. March 21, 1872. CaJ. Rep. Cit. 141, 434. § 1351. Advancements, when ademptions. Advance- ments or gifts are not to be taken as ademptions of gen- eral legacies, unless such intention is expressed by the testator in writing. En. March 21, 1872. Advancement in cases of intestacy: See post, sees. 1395- 1399. CHAPTER III. GENERAL. PROVISIONS RELATING TO WILJ-S. § 1357. Nature and deslsmatlons of legacies. 1. Specific. 2. Demonstratlv*. 8. Annuities. 4. Residuary. 6. General. § 1358. Estate chargeable In case of Intestacy. § 1359. Order of resort to estate for debts. § 1360. Same for legacies. § 1861. Legacies, how charged with debts. § 1362. Abatement. § 1363. Specific devises and legacies. § 1364. Heir's conveyance good, unless will is provwl 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 given executor to appoint Is invalid. § 1373. Executor not to act till qualified. § 1874. Provisions as to revocations. § 1375. Execution and construction of prior wills not afTected. § 1376. Law governing Interpretation. § 1377. Liability of beneficiaries for testator's obligations. § 1357. Nature and designations of legacies. Legacies are distinguished and desi-gnated, according to tlieir nature, as follows: g21 GENEIRAL, PROVISIONS. §§ 1358. 1359 1. Specific A legacy of a particular thing, specified 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. Demonstrative. 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 fails, in whole or in part, resort may be had to the general assets, as in case of a general legacy; 3. Annuities. 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. A residuary legacy embraces only that which remains after all the bequests of the will are dis- charged; 5. General. All other legacies are general legacies. En. March 21, 1872. Cal. Rep. Cit. 66, 331; 66, 832; 66, 439; 66, 440; 107, 308; 112, 526; 145, 121. Subd. 2—66, 437. Subd. 3—119. 136; 143, 453. Annuities commence at the testator's death: Post, sec. 1368. General legacies, payable when: See post, sec. 1368. § 1358. Estate chargeable in case of intestacy. 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 otherw^ise provided in this code and the Code of Civil Procedure. En. March 21, 1872. Am'd. 1873-4, 234. Cal. Rep. Cit. 66, 439; 67, 639. All property chargeable with debts: Code Civ. Proc., sec. 1516. Debts to be paid from what: Code Civ. Proc, sec. 1516; sees. 1560, 1562 et seq. of the same; sec. 1359, infra. Order of payment of debts: Code Civ. Proc, sec. 1643. Provision for support of the family: Code Civ. Proc, Bees. 1464 et seq. § 1359. Order of resort to estate for debts. The prop erty of a testator, except as otherwise specially provided 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 appropriated by tho will for the payment of the debts; CivU Code— 21 §§ 1360-1363 GENERAL. PROVISIONS. 9X2 2. Property not disposed of by the will; 3. Property which is devised or bequeathed to a residu- ary legatee; 4. Property which is not specifically devised or be- queathed and 5. All other property ratably. Before any debts are paid the expenses of the administration and the allowance to the family must be paid or provided for. En. March 21, 1872. Am'd. 1873-4, 234. Cal. Rep Cit. 66, 439; 66, 440, 145, 509. Subd. 4—66, 331. § 1360. Same for legacies. The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the pay- ment 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. Propert3' which is devised or bequeathed to a residu- ary legatee. 4. Property which is specifically devised or bequeathed. En. March 21, 1872. Am'd. 1873-4, 235. Cal. Rep. Cit. 66, 332; 66, 439; 66, 440; 142, 456. Subd. 4—66, 331. Payment of legacies — ^When legacies are due: Post, sec. 1368. When may be paid: Code Civ. Proc, sees. 1658 et seq. Legacies liable for debts: See Code Civ. Proc, sees. 1563 et seq. § 1361. Legacies, how cliarged with debts. Legacies to husband, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator. En. March 21, 1872. Cal. Rep. Cit. 66, 438; 66, 439; 66, 441. § U62. Abatement. Abatement takes place in any class only as between legacies of that class, unless a dif- ferent intention is expressed in the will. En. March 21, 1872. Cal. Rep. CTit. 66, 321; 66, 437; 66, 439; 66, 440. § 1363. Specific devises and legacies. In a specific devise or legacy, the title passes by the will, but possession can only be obtained from the personal representative: 323 GENERAL PROVISIONS. §§ 1364-136S and he may be authorized by the superior court to sell the property devised and bequeathed, in the cases herein pro- vided. En. March 21, 1872. Am'd. 1880, 8. How title passes in cases of intestacy: See post, sec, 1386. § 1364. Heir's conveyance good, unless will is proved within four years. The rights of a purchaser or incum- brancer of real property, in good faith and for value, de- rived 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 af- ter 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 there- of, or written notice of such devise is filed with the clerk of the countv where the real property is situated. En. March 21, 1872. Am'd. 1880, 8; 1905, 606. The change consists in the transposition of the words **withhi four years after the devisor's death," by striking them ont at the end ol the section, where they now appear, and placing them after the word "unless." — Code Commissioner's Note. Recording will: See Code Civ. Proc, sees. 1314, 1318. § 1365. Possession of legatees. Where specific legacies 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 representative, as tho case may be. Sn. March 21, 1872. Cal. Rep. Cit. 108, 470. § 1366. Bequest of interest. In case of a bequest of th^ interest or income of a certain sum or fund, the income accrues from the testator's death. En. March 21, 1872. Cal. Rep. Cit. 143, 454. Annuities commence at testator's death: Sec. 1368, infra. Accumulations: See ante, sees. 722 et seq. § 1367. Satisfaction. A legacy, or a gift in contempla tion, fear, or peril of death, may be satisfied before death. En. March 21, 1872. Am'd. 1873-4, 235. § 1368. Legacies, wlien due. Legacies are due and deliverable at the expiration of one year after the test* §§ 1369-1374 GENERAL PROVISIONS. 324 tor's decease. Annuities commence at the testator's de- cease. En. March 21, 1872. Cal. Rep. Cit. 50, 246; 107, 309; 112, 524; 112, 527; 119, 135; 143, 456. Legacies payable after four months: See Code Civ. Proc, sec. 1658. § 1369. Interest. Legacies bear interest from the time when they are due and payable, except that legacies for maintenance, or to the testator's widow, bear interest from the testator's decease. En. March 21, 1872. Cal. Rep. Cit. 50, 247; 107, 309; 112, 524; 112, 527; 137, 431; 143, 454; 143, 456; 143, 457. § 1370. Construction of these rules. The four preced- ing sections are in all cases to be controlled by a testator's express intention. En. March 21, 1872. Cal. Rep. Cit. 112, 524. § 1371. Executor according to tlie tenor. Where it ap- peal's, by the terms of a will, that it was the intention of the testator to commit the execution thereof and the ad- ministration 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 executor. En. March 21, 1872. Cal. Rep. Cit. 101, 386; 107, 591; 124, 47. Appointment of executors: See Code Civ. Proc., sees. 1353, 1365. § 1372. Power given executor to appoint is invalid, ^n authority to an executor to appoint an executor is void. En. March 21, 1872. Executor of executor: See Code Civ. Proc, sec. 1353. § 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 preservation of the estate. En. March 21, 1872. Qualification: See Code Civ. Proc, sec. 1349. Qualification of executor: See Code Civ. Proc, sees. 1350, 1353, 1365 et seq. Payment of debts: See supra, sec. 1359. § 1374. Provisions as to revocations. The provisions of this title in relation to the revocation of wills apply to »n 325 SUCCESSION. §§ 1375-l?n wills made by any testator living at the expiration of one year from the time it takes effect. En. March 21, 1872. § 1375. Execution and construction of prior wills not affected. The provisions of this title do not impair the validity of the execution of any will made hefore it takes effect, or affect the construction of any such will. En. March 21, 1872. § 1376. Law governing interpretation. The validity and interpretation of wills, 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. En. March 21, 1872. Am*d. 1873-4, 235; 1905, 607. The change consists in the addition of the clause following the word "state," and has been ren'dered necessary by the proposed amendment to section 1285.— Code Commissioner's Note. § 1377. Liabrlity of beneficiaries for testator's obliga- tions. 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. EJn. March 21, 1872. Cal. Rep. Cit. 140, 289. TITLE VIL SUCCESSION. § 1383. Snccej^on defined, § 1384. Intestate's estate, to whom passes. § 1385. Personal representatives. (Repealed.) § 1386. Succession to and distribntion of property. § 1387. Illegitimate children to inherit in certain events. § 1388. Successor to Illegitimate child. ^§ 1389-1393. Degrees of kindred, how computed. § 1394. Relatives of the half blood. § 1395. Advancements constitute part of distributive fibar*. § 1396. Advancements, when too much, or not enough. § 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 the common property on death of wife. § 1402. Distribution of comnjon property on death of 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. § 1*07. Property escheated subject to charges as other property. § 1408. Successor liable for decedent's obligations. § 1409. Person convicted of murder of decedent not to sacceed. J§ 1383-1386 SUCCESSION. S2« § 1383. Succession defined. Succession is the coming in of another to take the property of one who dies without disposing of it by will. En. March 21, 1872. Cal. Rep. Cit. 52, 298; 88, 586; 112, 394; 112, 399; 132, 612; 136, 112; 143, 198. § 1384. Intestate's estate, to whom passes. The prop- erty, 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 pos- session of any administrator appointed by that court for the purposes of administration. En. March 21, 1872. Am'd. 1873-4, 236. Cal. Rep. Cit 86, 527; 88, 586- 88, 588; 100, 164; 105, 183; 109,422; 114,528; 12^,687; 137, 174; 143, 198. Possession of personal representative: See Code Civ. Free, sees. 1452, 1581. § 1385. Personal representatives. (Repealed.) En. March 21, 1872. Rep. 1873-4, 236. § 1386. Succession to and distribution of property. Wlien any person having title to 'any estate not otherwise limited by marriage contract, dies without disposing there- of by will, it is succeeded to and must be distributed, un- less 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 surviving husband 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 husban-d 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 representa- tion; 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 kin- dred to the decedent, they share equally, otherwise they take according to the right of representation. If the de- cedent 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 or more deceased chil- 327 SUCCESSION. S 138^ dren, 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 hy right of representation; 2. If the decedent leaves no issue, me 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 grandchildren of any deceased brother or sis- ter by right of representation. 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 neither 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 de- ceased 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 sur- viving child dies under age, and not having been married, all the estate that came to the deceased child by inheri- tance from 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 representa- tion; 7 If at the death of such child, who 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 de scends to the issue of all other children of the same parent- and if all the issue are in the same degree of kin- dred to the child, they share the estate equally, otherwise they take according to the right of representation; 8 If the decedent is a widow or widower, and leaves no Issue and the estate or any portion thereof was common $ 1387 SUCCESSION. property of such decevlent and his or her deceased spouse, while such sponse was livicg, or was separate property ot his or her deceased spouse, while such spouse was living, such property goes to the children of such deceased spouse and the descendants thereof, and if none, then to the father of such deceased spouse, or if he is dead, to the mother. If there is no father nor mother, then such prop- erty goes to the brothers and sisters of such deceased spouse, in equal shares, and to the lawful issue of any deceased brother or sister of such deceased spouse by right of representation; 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. En. March 21, 1872. Am'd. 1873-4, 236; 1880, 14; 1905, 607. A clerical error is corrected by renumbering the subdivisions; certain errors of grrammar are corrected. The words "or grrandchild" are in- serted after "child"; the words "nor the child or gran'dchild of a de- ceased brother or sister'' are inserted after "sister"; the words "chil- dren of such deceased spouse and the descendants thereof, and if none, then to," are inserted. In the second line of subdivision 8, the word "issue" is substituted for "kindred," an-d the subdivision amended in accordance with the urgent request of Judge Gray of the Supreme Court Commission to overcome such cases as il^state of Mo- Cauley, 138 Cal. 646.— Code Commissioner's Note. Cal. Rep. Git. 63, 416; 75, 219; 76, 551; 81, 438; 84, 495; 88,556; 110,526; 110,527; 123,687; 123,688- 131, 434; 131, 435; 132, 217; 132, 613; 136, 112;' 138, 548; 138, 549; 138, 550; 138, 551; 140, 469; 143, 198. 143, 202; 143, 205; 146, 579; 147, 607. Su^bd. 1-^130. 322. Subd. 2—78, 588; 114, 465; 117, 285; 132, 215. Subd. 3—114, 465; 117, 285; 132, 526. Subd. 5—78, 587; 88, 620; 124, 129; 132, 215; 132, 612. Su'bd. 6—110, 526. Subd. 9—143, 207. Subd. 10—143, 197. Administration of intestates* estates: See Code Civ. Proc, sees. 1365 et seq. § 1387, Illegitimate children to inherit In certain events. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child ^ ana 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 hj inherit- e» SOOCESSION. * S{ 138»-13^ ing 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 mar- riage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered 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 man- ner as if all had been legitimate. The issue of all mar- riages null in law or dissolved by divorce, are legiti- mate. Eln.^ March 21, 1872. Cal. Rep'. Cit. 52, 87; 57, 491; 63, 415; 63, 416; 81, 421; 81,422. 81,442; 81,447; 96,557; 96,581; 96, 582; 96, 588; 96, 591; 96, 594; 102, 262; 112, 693; 127, 434; 142, 159; 142, 168; 142, 170; 142, 171. § 1388. Successor to illegitimate child. The estate of an illegitimate child, who has been legitimated by the sufbseqnent marriage of its parents, or adopted by the father as provided by section two hundred and thirty, and who dies intestate, is succeeded to as if he were born in lawful wedlock. If such child has not been bo legiti- mated or adopted, his estate goes to his lawful issue, or, if he leaves no issue, to his mother, or in case of her de- cease, to her heirs at law. En. March 21, 1872. Am'd. 1905, 609. The amendment consists in declaring that if an lllegritimate child has been legitimated, his estate on his death is succeeded to as if he were bom In wedlock.— Code Commissioner's Note. C5al. Rep. Cit. 63, 415; 63, 417. § 1389. Degrees of kindred, how computed. The degree of kindred is established by the number of generations, and each generation is called a degree. En. March 21, 1872. S 1390. Degrees of kindred, how computed. The series of degrees forms the line; the series of degrees between persons who descend from one another m 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 col- lateral consang^iinity. En. March 21, 1872. §§ 1I91-1J85 ' SUCCESSION. S3U § 1391. Degrees of kindred, how computed. The direct line is divixied into a direct line descending and a direct line ascending. The first is that which connects the an- cestors with those who descend from him. The second is that whi<^ connects a person with those from whom he descends. En. March 21, 1872. § 1392. Degrees of kindred, how computed. In the di- rect line there are as many degrees as there are genera- tions. Thns, the son is, with regard to the father, in the first degree; the grandson in the second; and vice versa with regar3 by general release. § 1548. Release of one of several joint debtors. § 1541. Obligation extinguished by release. An obliga- tion 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. En. March 21, 1872. Cal. Rep. Cit. 57, 51; 78, 555; 121, 258. Writing imports a consideration: Post, sec. 1614. § 1542. Certain claims not affected by genera! 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. Ein. March 21, 1872. Am'd. 1873-4, 241. Cal. Rep. Cit. 86, 253; 86, 254; 119, 469; 184, 548. § 1543. Release of one of several Joint debtors. A release of one of two or more Joint debtors does not ex- tinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to con- tribution from him. En. March 21, 1872. Cal. Rep. Cit. 63, 158; 68, 89; 68, 90; 70, 114; 76, 7; 86, 253; 122, 654; 125, 512; 130, 264; 133, 113; 145, 588; 146, 171. Guarantor's liaibility discharged: See po8t, sec. 2819. Ri£:ht8 of sureties: See post, sec. 2844. PART IL 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 OP A CONTRACT. Chapter I. Definition, §§ 1549-1550. II. Parties, §§ 1556-1559. III. Consent, §§ 1565-1589. IV. Object, §§ 1595-1599. V. Considerations, §§ 1605-1615. CHAPTER I. DEFINITION. I 1B49. Oontraot, what. 3 1550. Easential elements of contract. J 1549. Contract, what. A contract is an agreement to do or not to do a certain thing. En. March 21, 1872. Cal. Rep. Clt. 7«, 536. § 1660. Essential elements of contract. It is essential to the eiiistence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. Eti. March 21, 1872. Cal. Rep. Cit. 64, 110; 85, 30; 115, 515; 139, 512; 145, 498. Sulbd. 2—135, 563. Consent: See post, sees. 1565 et seq. Unlawful contracts: See post, sec. 1667. Consideration: See post, sees. 1605 et seq. (8«0) ^ PARTIES. IS 15S6-lfi59 CHAPTER IL PARTIES. § 1556. Who may contract- § 15'7. Minors, etc. § ]."58. Identification of parties necessary. § 1559. When contract for benefit of third person may b« ^forced. § 1556. Who may contract. All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights. En. March 21, 1872. Cal. Rep. Cit. 54, 178. Contracts of infants: See ante, sees. 33 et seq. Contracts of persons of unsound mind: See ante, sees. 38 et seq. Contracts of married women: See ante, sees. 158, 159, 167. § 1557. Minors, etc. Minors and persons of unsound mind have only such capacity as is defined by part I of division I of this code. En. March 21, 1872. See ante, sees. 33 et seq. § 1558. Identification of parties necessary. It is essen- tial to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them. En. March 21, 1872. § 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. En. March 21, 1872. Cal. Rep. Cit. 68, 389; 73, 525; 94, 84; 95, 168; 106, 55a; 109, 136; 110, 346; 112, 258; 120, 574; 142, 708. §§ 1565, 1564 OONSEiirr. MS CHAPTER in. CONSENT. § 1565. Essentials of ecMUsent. § 1566. Conserit, when voidable. § 1567. Apparent consent, when not free. § 1568. When deemed to have been obtained by frand, «te. § 1569. Duress, what. § 1570. Menace, what. § 1571. Fraud, actual or constrnctive. § 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 law*. § 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 eosditionB. § 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 bene^s. § 1565. Essentials of consent. The consult ol die parties to a contract must be: 1. Free; 2. Mutual; and, 3. Communicated by each to the other. En. March 21, 1872. Cal. Rep. Cit 82, 398; 85, 30; 123, 431; 139, 512; 140, 162. Subd. S—125, 481; 135, 563. Consent, when not free, and effect: Sees. 1566, 1567, infra. Consent, when not mutual: See sec. 1580. Consent, how communicated: See infra, sees. 1581 et seq. § 1566. Consent, when 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. En. March 21, 1872. Cal. Rep. Cit. 71, 440; 82, 399; 85, 30; 95, 639; 110, 379; 126, 504; 129, 82; 129, 84; 129, 85. Rescission of contracts: See post, sees. 1688 et seq.; iecs. 3406 et seq. 363 CONSENT. §§ 15e7-15tO § 1567. Apparent consent, when not free. An apparent consent is not real or free when obtained through: 1. Duress; 2. Menace; 3. Fraud; 4. Undue influence; or, 5. Mistake. En. March 21, 1872. Cal. Rep. Cit. 71, 440; 82, 399; 85, 3«; 129, 85; 141, 62. Su'bd. 5—134, 548. Dnress defined: Sec. 1569. Menace defined: Sec. 1570. Fraud defined: Sec. 1571. Undue influence defined: Sec. 1575. Mistake defined: Sees. 1576, 1577. § 1568. When deemed to have been obtafned by fratid, etc. Consent is deemed to have been obtained through one of the causes mentioned in the last section only when it would not have been given had such cause not existed. En. March 21, 1872. Cal. Rep. Cit. 82, 399; 85, 30; 130, 198; 138, 671; 145, 448; 147, 444. § 1569. Duress, what. Dxrress consists hi: 1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; 2. Unlawful detention of the property of any such per- son; or, 3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly har- assing or oppressive. En. March 21, 1872. Cal. Rep. Cit. 93, 455; 98, 575; 107, 308; 130, 198. § t570. Menace, what. Menace consists in a threat: 1. Of such duress as is specified in subdivisions 1 and $ of the last section; 2. Of unlawful and violent injury to the person or prop- erty of any stich person as is specified tn the last sen; or, 3. Of injury to the character of any saeh person. En, March 21, 1872. Cal. Rep. at 9S, 455; 130, 198. §§ 1571-1574 a>KSl»n». «4 § 1571. Fraud, actual or constructive. Fraud is either actual OT constructiTe. En. March 21, 1872. Cal. Rep. at. 78, 225; 82, 3S3; 85, 30. § 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 whi(^ 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. En. March 21, 1872. Cal. Rep. Cit. 56, 365; 65, 402; 78, 225; 79, 316; 82, 383; 96, 440; 127, 535; 131, 477; 133, 443; 141, 62; 144, 312; 147, 743. ^ubd. 2—84, 649; 103, 42; 134, 663; Subd. 3—138, 6T1. Subd. 4^75, 527; 77, 26; 78, 131; 88, 477; 88, 565; 93, 359; 122, 581; 138, 671; 141, 190, Subd. 5—158, 671. Fraudulent conveyance a misdemeanor: Pen. Code, sec. 531. Fraudulent instruments and transfers: See post, sees. 3439 et seq. Rescission of contracts for fraud: See post, sec. 1689. Deceit: See post, sees. 1709^ 1710. § 1573. Const pucttvo fraud. Constructive fraud con- sists: 1. In any breadi of duty which, without an actually fratidulent intent, gains an advantage to the person in fauK, or any one claiming under him, by misleading an- other to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially de- clares to be fraudulent, without respect to actual fraud. En. March 21, 1872. Cal. R^. at. 66, 865; 65, 402; 91, 18. Subd. 2—134, 6^3. f 14574- Actual fraud a question of fact. Actual fraud 18 always a question of fact. En. March 21, 1872. Cal. R^. Cit. 119, 434. S65 CON^NT. H 1575-1579 § 1575. Undue influence, what. Undue hrflnence con- sists: 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. En. March 21, 1872. Cal. Rep, Cit. 56, 93; 79, 316; 94, 646; 97, 262; 141, 62. Subd. 1—90, 336; 103, 102; 134, 174; 135, 31S. Undue influence vitiating will: See ante, sec. 1272. Rescission of contracts: See post, sees. 1689, 3406. § 1576. Mistake, what. Mistake may be either ol fact or law. En. March 21, 1872. Cal. Rep. Cit. 96, 659. I 1577. Mistake of fact. Mistake of fact is a m^ake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consistiiug in: 1. An uneonscioas ignorance or forgetfulne^ of a fact past or present, material to the contract; or, 2. Belief in the present existence of a thing m^erlal to the contract, which does not exist, or in the past ex- istence of such a thin^, wliicli has not existed. EIn. Mardi 21, 1872. Cal. Rep. Cit. 68, 616; 119, 485; 119, 436; 122, 100- 138, 671. Subd. 1—119, 468; 131, 639; 134, 384; 144, 110. S 1578. Mistake of law. Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from: 1. A misapprehension of the law by all parties, an sup- posing that they knew and understood it, and all making substantially the same mistake as to the law; or, 2. A misapprehension of the law by one party, of which the others are aware at the time of contractin-g, but which they do not rectify. En. March 21, 1872. Cal. Rep. Cit 95, 74; 119, 469. Subd- 1—119, 468; 127, 537; 129, 478; 130, 479; 134, 548. Sai)d. 2—138, 671. § 1579. Mistake of foreign laws. Mistake of foreign laws is a mistake of fact. En. March 21, 1872. $} 1B80-1S85 CONSENT. Mi Foreign laws, how proved: See Cotie C5v. Proc, sees. 1900, 1901. § 1580. Mutuality of consent. Consent is not mutual, unless the parties all agree upon the same thing in the same sense. But in certain cases defined by the chapter on Interpretation, they are to be deemed so to agree with- out regard to the fact. En. March 21, 1872. Cal. Rep. Git. 60, S32; 137, 692. Interpretation of contracts: See post, sees. 1635 et seq. § 1581. Communication 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. En. March 21, 1872. Cal. Rep. Cit 140, 1€2. § 1S82. I^ode of communicating acceptance of proposal. If a proposal prescribes any conditions concerning the communication of its acc^tance, the proposer is not bound unless they are conformed to; but in other cases any rea- sonable and usual mode may be adopted. En. March 21, 1872. CaL Rep. dt 115, 515; 123, 431. § 1583k When communtcation deemed complete. Con- sent 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 pro- poser, in conformity to the last section. En. March 21, 1872. Cal. Rep. Cit. 123, 431. § 1584. Acceptance by performance of conditions. Per- formance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an accept- ance of the proposal. En, March 21, 1872. Cal. Rep. Cit. 141, 706. § 1585. Acceptance must be absolute. An acceptance 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. En. March 21, 1872. Oal. Rep. at S2, 87; 140, 161; 145, 62S. M7 OBJECT OF A CONTRACT. SS § 1586. Revocation of proposal. A proposal may be re- voked at any time before its acceptance is comm.unicated to the propose, but not afterwards. En. March 21, 1872. Gal. Rep. Cit. 82, 87. I 1587. Revocation, how made. A proposal is revoked: 1. By the communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections 1581 and 1583, before his acceptance has been oom- mimicated to the former; 2. By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time without communication of the ac- c^tance ; 3. By the failure of the acceptor to fuMll a condition precedent to acceptance; or, 4. By the death or insanity of the piraposer. Eo. March n, 1872. § 1588. Ratification of contract, voW for want of con- sent. A contract which is voidable solely for want of due consent may be ratified by a subsequent consent. En. March 21, 1872. Gal. Rep. Git. 130, 433. § 1589. Assumption of obligation by acceptance of bene- fits. A voluntary accepance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. En. March 21, 1872. Gal. Rep. Git. 86, 577; 100, 72; 105, 296; 105, 297; 105, 298; 113, 231; 113, 236; 113, 561; 120, 574; 130, iZZ; 137, 25; 141, 706; 144, 112. CHAPTER IV. OBJECT OP A CONTRACT. § 15S5. Object, what. § 1596. Requisites of object. § 1597. Impossibility, what. § 1598. When contract wholly voM. § 1599. When contract partially void. § 1595. Object, what. The object of a contract is the thing which it is a^eed, on the part of the party receiving the consideration, to do or not to do. En. March 21, 1872. Gal. Rep. Git. 126, 598. §§ 1596-W05 CONSIDERATION. MS Unlawful contracts: See next section, and post, sees. 1667 et seq. Unlawful conditions: See ante, sec. 1441. § 1596. Requisftes of object. The object of a contract must be lawful when the contract is made, and possible and ascertainable by the time the contract is to be per- formed. En. March 21, 1872. See post, sees. 1667 et seq. S 1597, Impossibility, what. Everything is deemed pos- sible except that which is impossible in the nature of things. En. March 21, 1872. § 1598. When contract 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- formance, or so vaguely expressed as to be wholly unasceiN tainable, the entire contract is void. En. March 21, 1872. Oal. Rep. Cft 132, 65. § 1599. When contract partially void. Where a con- tract 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. En. March 21, 1872. OaL Rep. Git. 59, 682; 136, 660. CHAPTER V. CONSIDERATION. 8 1605. Q^od consideration, what. I }f606. How far legal or moral obIi«ration in a STOod eooskleratlaa. § 1607. Consideration lawful. § 1608. Effect of its illegality. I 1609. Consideration executed or tstecntmry. 5 1610. Execirtory consideration. § 1611. How ascertained. § 1612. Effect of impossibility of ascertaining consideratt<». § 1613. Same. § 1614. Written instrument presrunptlve evidence of consideratloa. § 1615. Burden ot proof to invalidate sufficient consideration. I 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 suf- ^ CONSiDERATIOM. §§ 1606-1611 fered, by such person, otlier than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise. En. March 21, 1872. Cal. Rep. Clt. 89, 654; 104, 242; 126, 598; 139, 168; 145, 500. § 1606. How far legal or moral obligation is a good con- sideration. An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with .the extent of the obligation, but no further or otherwise. En. March 21, 1872. Cal. Rep. Cit. 112, 205. § 1607. Consideration lawful. The consideration of a contract must be lawful within the meaning of section 1667. En. March 21, 1872. Cal. Rep. Cit. 68, 30; 82, 643; 83, 177; 125, 122. Unlawful contracts: See post, sees. 1667 et seq. § 1608. Effect of its Illegality. If any part of a single consideration for one or more objects, or of several con- siderations for a single object, is unlawful, the entire con- tract is void. En. March 21, 1872. Cal. Rep. Cit 67, 30; 68, 30; 82, 643; 83, 177; 96, 112; 125, 122; 131, 384; 136, 67. § 1609. Consideration executed or executory. A consid- eration may be executed or executory in whole or in part. In so far as it is executory it is subject to the provisions of chapter IV of this title. En. March 21, 1872. Cal. Rep. Cit. 90, 375. § 1610, Executory consideration. When a considera- tion 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 regu- lated by any specified standard. En. March 21, 1872. Cal. Rep. Cit 74, 296; 90, 375. { 1611. How 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, avU Code— 24 §§ 1612-1615 CONSIDEIRATION. ttO the consideration must be so much money as the object of the contract is reasonably worth. En. March 21, 1872. Cal. Rep. Cit. 90, 375. See following sections. § 1612. Effect of impossibility of ascertaining considera- tion. 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 contract is void. En. March 21, 1872. § 1613. Same. Where a contract provides an exclusive method by which its consideration is to be ascertained, which method appears possible on its face, but in fact is, OT becomes impossible of execution, such provision only is void. E^. March 21, 1872. § 1614, Written Instrument presumptive evidence of consideration. A written instrument is presumptive evi- dence of a consideration. En. March 21, 1872. Cal. Rep. Cit. 62, 638; 67, 539; 68, 617; 69, 614; 75, 518; 79, 607; 85, 327; 86, 642; 88, 82; 96, 110; 100, 432; 100, 433; 103, 101; 106, 655; 111, 284; 12^, 682; 124, 579; 129, 306; 131, 383; 143, 533; 143, 603. Distinction between sealed and unsealed instruments abolished: See post, sec. 1629. § 1615. Burden of proof to invalidate sufficient consid- eration. The burden of showing a want of consideration suflacient to support an instrument lies with the party seeking to invalidate or avoid it. En. March 21, 1872. Cal Rep. Cit. 68, 617; 69, 614; 75, 518; 79, 607; 83, 177; 85, 327; 88, 82; 96, 110; 103, 101; 111, 284; 120, 682; 124, 579; 129, 306; 131, ^83; 143, 533. fH MANNER OP CREATING CONTRACTS. fiS lfll»-lttM TITLE II. MANNER OF CREATING CONTRACTS. § 1619. Contracts, express of implied. § 1620. Express contract, wliat. § 1621. Implied oontraot, what. I 1622. What contracts may be oral. I 1623. Contract not in writing through fraud, may b« Miforottd against fraudulent party, I 1624. What contracts must be written. § 1625. Effect of writing I 1626. Contract in writing, taltes effect when. § 1627. Provisions of chapter on transfers of real prop«rty. 8 1628. Corporate seal, how affixed. § 1629. Provisions abolishing seals made applicable. § 1619. Contracts, express or Implied. A contraot is either express or implied. En. March 21, 1872. § 1620. Express contract, what. An express contract is one, the terms of which are stated in \^ords. En. Marcii 21 1872. Cal. Rep. Oit. 136, 568. S 1621. Infiplled contract, what. An implied contract is one, the existence and terms of which are manifested by conduct. En. March 21, 1872. Cal, Rep. Cit. 79, 326. Obligations imposed by law: See post, sees. 1708 et seq. § 1622. What contracts may be oral. All contracts may bo oral, except such as are specially required by statute to be in writing. En. March 21, 1872. Cal. Rep. Cit. 90, 359; 93, 495; 115, 515; 137, 248. Contracts, when to be in writing: See infra, sees. 1628, 1624; Code Civ. Proc, sees. 1971-1974. § 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 there- to, 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. En. March 21, 1872. Cal. Rep. Cit. 88, 486. See Code Civ. Proc, sees. 1971-1974. § 1624. What contracts, must be written. The follow- ing contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by th© party to be charged, or by his agent; § 1624 MANNER OF CREATING CONTRACTS. r?2 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section twenty-seven hundred and ninety-four; 8. 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 action, at a price not less than two hundred dollars, un- less the buyer accepts or receives part of such goods and chattels or the evidences, or some of them, of such 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 auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of the sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real 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 per- formed during the lifetime of the promisor, or an agree- ment to devise or bequeath any property, or to make any provision for any person by will. En. March 21, 1872. Am'd. 1873-4, 241; 1877-8, 86; 1905, 611. The chanKe consists In the addition of subdivision 7. The cases In which it is sougrht to establish by parol evidence alleged agreements to provide for a person by will are becoming so numerous as to war- rant the assumption that the reasons inducing the original enactment of the statute of frauds apply with especial force to agreements of this class and that they ought to be brought within that statute.— Code Commissioner'* Note. Cal. Rep. Cit. 77, 282; 89, 570; 100, 29; 111, 285; 112, 635; 113, 484; 133, 478; 142, 403. Subd. 1—67, 93; 77, 388; 117, 591; 128, 158; 130, 356; 133, 478; 140, 689. Subd. 2—67, 659; 81, 288; 117, 592; 119, 241; 130, 413. Subd. 8—75, 300; 103, 160. Subd. 4—67, 93; 75, 526; 91, 671. Subd. 5—71, 47; 72, 144; 75, 169; 81, 207; 82, 646; 85, 698; 89, 569; 93, 495; 96, 109; 106, 600; 128, 158; 184, 229; 143, 366. Subd. 6—62, 302; 75, 511; 86, 641; 87, 116; 90, 858; 100, 28; 129, 390; 129, 489; UU 111. 373 MANNER OF CREJATINQ CONTRACTS. 5§ 1625-1621 Statute of frauds: See Code Civ. Proc, sees. 1971-1974. Memorandum by auctioneer: See post, sec. 1798. Guaranty: See post, sec. 2793. Sale of realty: See post, sec. 1741. Fraudulent transfers: See post, sec. 3440. Sales of personalty: See post, sees. 1789 et seq. Guaranty: See post, sees. 2793 et seq. Part performance taking case out of statute: See post, sec. 1741. § 1625. Effect of writing. The execution of a contract \n writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations con- cerning its matter which preceded or accompanied the execution of the instrument. En. March 21, 1872. Am'd. 1905, 611. Cal. Rep. Cit. 81, 7; 82, 478; 82, 546; 86, 840; 89, 621; 95, 670; 96, 109; 96, 110; 112, 51; 113, 440; 117, 211; 141, 228; 141, 731; 146, 97. Writing supersedes oral stipulations: See post, sec. 1689. § 1626. Contract In writing, takes effect when. A con- tract in writing takes effect upon its delivery to the party in whose favor it is made, or to his agent. Bn. March 21, 1872. Cal. Rep. Cit. 115, 202; 129, 253. Delivery of transfers in writing: See, generally, ante, sec. 1054. § 1627. Provisions of chapter on transfers of real prop- erty. The provisions of the chapter on Transfers in Gen- eral, concerning the delivery of grants, absolute and con- ditional, apply to all written contracts. Bn. March 21, 1872. Cal. Rep. Cit. 128, 546. See ante, sees. 1052 et seq. § 1628. Corporate seal, how affixed. A corporate or of- ficial seal may be affixed to an instrument by a mere im- pression upon the paper or other material on which such Instrument is written. En. March 21, 1872. Cal. Rep. Cit. 64, 11. See Code Civ. Proc, sec. 14; Pol. Code, sec. 14. § 1629. Provisions abolishing seals made applicable. All distinctions between sealed and unsealed Instruments are abolished. En. March 21, 1872. Cal. Rep. Cit. 55, 566; 67, 448; 100, 622; 118, 656; 129, 389. 5§ 1635-1837 INTERPRETATION OF CONTRACTS. 174 TITLE III. INTERPRETATION OF CONTRACTS. I 1635. Uniformity of interpretation. I 1636. Contracts, how to be interpreter^. I 1637. Intention of parties, how ascertained. § 1668. Intention lo be awiertaiHed from langruagre. S 1639. Interpretation of written contracts. § 1G40. Writing, when diercgarded, S 1641. Effect to be give.a to every part of contract. § 1642. Several contracts, when taken together. § 1643. Interpretation in favor of contract. S 1644'. Words to be understood in usual sense. § 1645. Technical words. § 1646. Law of place. I 1647. Contracts explained by circumstances. I 1648. Contract restricted to it* evident object. I 1649. Interpretation in sense in which promisor believed promisee to rely. § 1650. Particular clause subordinate to general intent. 5 1651. Contract, partly written and partly printed. § 1652. Repugnancies, how reconciled. § 1653. Inconsistent words rejected. § 1654. Words to be taken most strongly against whom. I 1655. Reasonable stipulations, when Implied. § 1656. Necessary incidents implied. § 1657. Time of performance of contract. § 1658. Time, when of essence. (Repealed.) I 1659. When joint and several. { 1G60. Same. I 16C1, Executed and executory contracts, what. § 1635. Uniformity of interpretation. All contracts whether public or private, are to be interpreted by tne same rules, except as otherwise provided by this code. En. March 21, 1872. Cal. Rep. Cit. 132, 19. § 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 con- tracting, so far as the same is ascertainable and lawful. En. March 21. 1872. Cal. Rep. Cit. 57, 479; 81, 532; 95, 138; 104, 300; 111, 508; 119. 257; 126, 4G9; 132, 19; 135, 29; 141, 102; 141, 731. Parol evidence to prove intention: See Code Civ. Froc^ sees. 1855 et seq. § 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. En. March 21, 1872. Cal Rep. Cit 141, 103. M INTERPRETATION OF CONTRACTS. SS 163»-1«3 Parol evidence with respect to writings: See Code Civ. Proc, sees. 1855, 1856 et seq. § 1638. Intention to be ascertained from language. The language of a contract Is to govern its interpretation, II the language is clear and explicit, and does not Involve an absurdity. En. March 21. 1872. Cal. Rep. Cit. 123, 100; 141, 228; 141, 734. § 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 possible; subject, however, to the other provisions of this title. En. March 21. 1872. Cal. Rep. Cit. 62, 631; 141, 228; 141, 734; 146, 694. Parol evidence In construing writings: See Code Civ. Proc., sees. 1855 et seq. § 1640. Writing, when disregarded. When, through fraud, mistake, or accident, a written contract falls to ex- press the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disre- garded. En. March 21, 1872. Cal. Rep. Cit. 62, 631; 107, 355; 137, 75. See Code Civ. Proc, sec. 1856. § 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. En. March 21, 1872. Cal, Rep. Cit. 62, 631; 62, 638; 81, 532; 81, 633; 104, 300; 131, 484. § 1642. Several contracts, when taken together. Sev- eral contracts relating to the same matters, between the same parties, and made as parts of substantially one trans- action, are to be taken together. En. March 21, 1872. Cal. Rep. Cit 62, C33; 84, 189; 131, 484; 133, 683; HH, 100; 142, 144; 147, 118. § 1643. Interpretation In favor of contract. A contract must receive such an interpretation as will make it law- ful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. En. March 21, 1872. Cal. Rep. Cit. 80, 618; 83, 62; 119, 257; 121, 100; 132, 65; 132, 566; 141, 102; 144, 37. §§ 1644-16« INTERFKETATION OF CONTRACTS. J76 § 1644. Words to be understood in usual sense. The words of a contract are to be understood in their ordinary 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 Dy usage, in which case the latter must be followed. En. March 21, 1872. Cal. Rep. Cit. 57, 479; 87, 59; 95, 138; 125, 352; 132, 65; 144, 27. § 1645. Technical words. Technical words are to be interpreted as usually understood by persons in the pro- fession or business to which they relate, unless clearly used in a different sense. En. March 21, 1872. Cal. Rep. Cit. 57, 479; 95, 138; 99, 372; 123, 143; 144, 37. § 1646. Law of pJace. 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 per- foimance, according to the law and usage of the place where it is made. En. March 21, 1872. Cal. Rep. Cit. 57, 479; 95, 138; 99, 372; 144, 7S8. Usage: See Code Cir. Proc, sec. 1870, subd. 13. § 1647. Contracts explained by circumstances, A con- tract may be explained by reference to the circumstances under which it was made, and the matter to which it re- lates. En. March 21, 1872. CaL Rep. Cit. 77, 457; 78, 262; 83, 63; 99, 372; 126, 469; 132, 65; 134, Z2S; 137, 100; 141, 261; 141, 731. § 1648. Contract restricted to its evident object. How- ever broad may be the terms of a contract, it extends only to those things concerning which it appears that the par- ties intended to contract. En. March 21, 1872. Cal. Rep. Cit. 62, 633; 141, 731. § 1649. Interpretation in sense In which promisor be- lieved 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 unlerstood it. En. March 21, 1872. Cal. Rep. Cit. 74, 534; 107, 354; li)9, 228; 132, 65; 133, 179. Which construction preferred: Code Civ. Froc, sec. 1864. 877 INTERPRETATION OF CONTRACTS. §§ 1650-1654 § 1650. Particular clause subordinate to general intent. Particular clauses of a contract are subordinate to its general intent. En. March 21, 1872. Cal. Rep. Cit. 54, 370; 116, 67; 123, 100; 133, 658. See infra, sees. 1652, 1653. § 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 to their intention, and the remainder is copied from a form ori- ginally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded. En. March 21, 1872. Cal. Rep. Cit. 87, 239; 111, 509. § 1652. Repugnancies, how reconciled. Repugnancy in a contract must be reconciled, if possible, by such an in- terpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. En. March 21, 1872. Cal. Rep. Cit. 123, 100. § 1653. Inconsistent words rejected. Words in a con- tract which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected. En. March 21, 1872. Cal. Rep. Cit. 123, 100; 133, 658; 141, 731. § 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 strongly against the party who caused the uncer- tainty to exist. The promisor is presumed to be such party; except in a contract between a public oflBcer or body, as such, and a private party, in which it is pre- sumed that all uncertainty was caused by the private party. En. March 21, 1872. Cal. Rep. Cit. 83, 62; 107, 355; 110, 550; 111, 508; 125, 4«2; 131, 484; 133, 179; 136, 181; 141, 102; 141, 454. §§ 1655-1661 INTERPRETATION OF CONTRACTS. 378 § 1655. Reasonable stipulations, when implied. Stipu- lations which are necessary to make a contract reason- able, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no con- trary intention. EJn. March 21, 1872. Cal. Rep. Cit. 99, 372. § 1656. Necessary incidents implied. All things that in law or usage are considered as incidental to a contract, or as necessary to carry it into exfect are implied therefrom, unless some of them are expressly mentioned therein, when all other tnlngs of the same class are deemed to be excluded. En. March 21, 1872. Cal. Rep. Cit. 62, 630; 62, 637; 99, 372; 126, 469. § 1657. Time of performance 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 ex- ample, if it consists in the payment of money only — It must be performed immediately upon the thing to be done being exactly ascertained. En. March 21, 1872. Cal. Rep. Cit. 97, 521; 119, 175; 124, 511; 145, 366; 147, 327. § 1658. Time, when of essetvce. (Repealed.) BM, March 21, 1872. Rep. 1873-4, 242. § 1659. When joint and several. Where all the parties who unite in a promise receive some benefit from the con- sideration, whether past or present, their promise is pre- sumed to be joint and several. En. March 21, 1872. Cal. Rep. Cit. 129, 241; 129, 243; 133, 458; 140, 537. Contracts, joint and several: See ante, sees. 1430 et seq. § 1660. Same. A promise, made in the singular num- ber, but executed by several persons, is presumed to be joint and several. En. March 21, 1872. Cal. Rep. Cit. 121, 606; 129, 269. § 1661, Executed and executory contracts, what. An executed contract is one, the object of which is fully per- formed. All others are executory. En. March 21, 1872, Cal. Rep. Cit. 81, 532; 126, 59^. 379 . UNLAWFUL. CONTRACTS. §j 1667-1670 TITLE IV. UNLAWFUL CONTRACTS, § 1667. What is unlawful. § 1668. Certain contracts unlawful. § 1669. Penalties void. (Repealed.) § 1670. Contract fixing damages, void. § 1671. Exception. § 1672. Restraints upon legal proceedings. (Repealed.) § 1673. Contract in restraint of trade, void. § 1674. Exertion in favor of sale of goodwill. § 1675. Exception in favor of partnership arrangmentJi. § 1676. Contract in restraint of marriage, void. § 1667. What is unlawful. Thiat is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not ex- pres^y prohibited; or, 3. Otherwise contrary to good morals. En. March 21, 1872. Cal. Rep. Cit. 68, 30; 79, 680; 81, 373; 81, 515; 83, 177; 84, 415; 91, 117; 112, 204; 117, 244; 119, 601; 123, 609; 125, 122; 125, 123; 127, 35; 131, 488. Subd. 1— 96, 109. Subd. 2—96, 109. Subd. 3—127, 35. Act to prevent combinations to obstruct the sale of live- stock: See post, Appendix, title Animals. Contracts in restraint of trade: See sees. 1673-1674, infra. Contracts in restraint of marriage: See sec. 1676, infra. Conditions, when void: See ante, sees. 709, 710, 711. § 1668. Certain contracts unlawful. All contracts which have for their object, directly or indirectly, to ex- empt any one from responsibility for his own fraud, or willful injury to the person or property of another, or vio- lation of law, whether willful or negligent, ore against the policy of the law. En. March 21, 1872. Cal. Rep. Cit. 93, 457. § 1669. Penalties void. (Repealed.) Ba. March 21, 1872. Rep. 1873-4, 242. § 1670. Contract fixing damages, void. Every contract by which the amount of damage to be paid, or other com- I)ensation to be made, for a breach of an obligation, is de- termined in anticipation thereof, is to that extent void. §§ 1671-1674 UNLAWFUL. CONTRACTS. • SSO except as expressly provided in the next section. En. March 21, 1872. Cal. Rep. Cit. 75, 209; 77, 472; 78, 609; 87, 450; 90, 82; 90, 119; 90, 120; 98, 4; 98, 8; 98, 9; 100, 78; 114, 66; 123, 5; 123, 21; 125, 565; 125, 567; 134, 328; 135, 404; 144, 499. § 1671. Exception The parties to a contract may agree therein upon an an^ount which shall be presumed to be the amount of dawiage sustained by a breacn thereof, when, from the nature of the case, it would be imprac- ticable or extremely difficult to fix the actual damage. En. March 21, 1872. Cal. Rep. Cit. 66, 538; 75, 209; 77, 472; 78, 609; 82, 383; 87, 450; 90, 82; 90, 119; 90, 120; 98, 4; 98, 8; 98, 9; 100, 78; 110, 680; 123, 5; 123, 9; 125, 566; 125, 567; 135, 405; 144, 499; 144, 500. • § 1672. Restraints upon legal proceedings. (Repealed.) En. March 21, 1872. Rep. 1873-4, 242. Cal. Rep. Cit. 82, 383. § 1673. Contract in restraint of trade, void. Every con- tract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, other- wise than is provided by the next two sections, is to that extent void. En. March 21, 1872. Cal. Rep. Cit. 96, 513; 101, 298; 102, 510; 110, 153; 110, 679; 115, 604; 118, 357; 124, 431; 124, 433; 124, 434; U6, 180; 145, 3C7; 147, 118. § 1674, Exception in favor of sale of goodwill. One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business with- in a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein. En. March 81 1872 Cal. Rep. Cit. 101, 298; 102, 510; 106, 336; 110, 153; 110, 679; 118, 357; 124, 431; 124, 433; 126, 180; 127, 181; 145, 387. Goodwill of a business defined: Sec. 992, ante. Goodwill of a business is property: Sec. 993, ante. ■^ale of goodwill, implied warranty not to draw away customers: Sec. 1776, post Partner cannot dispose of god will: See post, sec. 2430, subd. 2. tSi RESCISSION. §§ 1675-1689 § 1675. Exception in favor of partnerslilp arrangements. Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof. En. March 21, 1872. Cal. Rep. Cit. 102, 510; 118, S57. § 1676. Contract in restraint of marriage, void. Ervery contract in restraint of the marriage of any person, other than a minor, is void. En. March 21, 1872. Coadltions in restrain of marriage: See ante, sec. 710. TITLE V. EXTINCTION OP CONTRACTS. OhaptCT L Contracts, How Extinguished, § 16S2. IL Rescission, §§ 1688-1691. rCL Alteration and Cancellation, §§ 1679-1701. CHAPTER I. CONTRACTS, HOW EXTINGUISHED. 5 1682. Contract, how extinguished. § 1682. Contract, how extinguislied. A contract may be extinguished in like manner with any other obligation, and also in the manner prescribed by this title. E>n. March 21, 1872. Gal. Rep, Cit. 110, 263. QHAPTBOEl H. RESCISSION. § 1688, Rescission exttngtiishea contract. § 1689. When party may rescind. § 1690. When stipulations against right to rescind do not defeat !t. § 1691. Rescission, how effected. § 1688. Rescission extinguishes contract. A contract is extinguished by its rescission. En. March 21, 1872. Cal. Rep. Cit. 66, 639; 93, 595. § 1689. When party may rescind. A party to a con- tract may rescind the same in the following cases only: §§ 1690, 1691 RESCISSION. ttZ 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 re- scinds the consideration for his obligation fails, in whole or in part; 3. If surfJvery en demand. § 1754. Delirery, where made. § its;. Expense aC transportation. § 1758. Notice of election as to dellTCTy. § 1757. Buyer's directions as to manner of sending tbins sold. § 175J. Delivery to be within reasonable hours. § 1753. Delivery on demand. One who sells personal property, wtiether it was in his possession at the time of sale or not, must pat it into a condition fit for deUyery, and §§ 1754-1758 RIGHTS AND OBLIGATIONS OF SELLEIR. S92 deliver it to the buyer within a reasonable time after de- mand, unless he has a lien thereon. En. March 21, 1872. Cal. Rep. Cit. 82, 479; 147, 319. Performance generally: See ante, sees. 1473, 1485 et seq. Delivery sufficient as to third person: See sec. 3440, post. § 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. En. March 21, 1872. Cal. Rep. Oit, 84, 213; 147, 319. § 1755. Expense of tpansportatlon. One who sells per- sonal property must bring it to his own doer, or other con- venient place, for its acceptance by the buyer, but fur- ther transportation is at the risk and expense of the buyer. En. March 21, 1872. § 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. En. Ilarch 21, 1872. § 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 dpring its transportation. If he follows such directions, or if, in the absence of special airections, he uses ordinary care in forwarding the thing, it is at the risk of the buyer. En. March 21, 1872. § 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. EJn. March 21, 1872. HI miGH'TS AND OBLIGATIONS QP SELi-ER. §^ 1763-176? ARTICLE III. WARRANTY. § 17€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. Merchan-dise not in existence. § 1769. Manufacturer's warranty against latent defects. § 1770. Thing bought for particular pvu*pose. § 1771. When thing cannot be examined by buyer, § 1772. Trademarks. § 1773. Other marks. § 1774. Warranty on sale of written Instrument. § 1775. Warranty of provisions for domestic use. § 1776. Warranty on sale of goodwill. § 1777. Warranty upon judicial sale. § 1778. Effect of general warranty. § 1763, Warranty, what. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. En. March 21, 1872. Cal. R^. Cit. 66, 239. § 1764, No implied warranty in mere contract of sale. Except as prescribed by this article, a mere contract of sale or agreement to sell does not imply a warranty. En. March 21, 1872. Cal. Rep. Cit. 65, 274; 66, 239; 92, 123; 139, 584; 145, 280. Warranty of genuineness on exchange of money: Post, sec. 1807. § 1765. Warranty of title to personal property. One who sells or agrees to sell personal property as his own, thereby warrants that he has a good and unencumb^ed title thereto. En. March 21, 1872. Cal. Rep. Cit. 113, 353. § 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. En. March 21, 1872. Cal. Rep. Cit 145, 278; 147, 327. § t767. 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 trans- §§ 17«8-1773 RIGHTS AND OBLIGATIONS OP SKTJJgH. *94 action, knows the existence of any fact concerning the thing sold which would to his knowledge destroy the buyer's inducement to buy. En. March 21, 1872. § 1768. Merchandise not In existence. One who agrees to sell merchandise not then in existence, thereby warrant? 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. En. March 21, 1872. Cal. Rep. Cit 75, 561; 76, 214; 116, 245. § 1769. ManufactLsr«ep's warranty against latent 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. En. March 21, 1872. Cal. Rep. Cit 67, 613; 75, 561; 134, 32«. § '[TTO. Thing bought for particular purpose. One who manufactures an article under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose. En. March 21, 1872. Cal. Rep. Cit 63, 576; 65, 274; 67, 613; 75, 561; 76, a^ 120, 229; 120, 231; 134, 328. § 1771. When thing cannot be examined by buyer. One who sells or agrees to sell merchandise Inaccessible to the examination of the buyer, thereby warrants that it is sound and merchantable. En. March 21, 1872. Cal. Rep. Cit 65, 276; 76, 214; 145, 280; 147, 327. § 1772. Trademarks. 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. En. March 21, 1872. Selling goods with counterfeit trademark: See Pen. Code, Bee 351. S 1773. Other marks. One who sells or agrees to sell any article to which there is affixed or attaxshed a statement or mark to express the quantity or quality thereof, or the m RIGHTS AND OBLIGATIONS OB* SELLER. |§ 1?74-1778 place where it was, in whole or in part, produced, manu- faetared, or prepared, thereby warrants the truth thereof. En. March 21, 1872. Owner of trademark: Pol. Code, sec. 3199. § 1774. Warranty on sale of written Instrument. One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act, thereby war- rants 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. En. March 21, 1872. Am'd. 1873-4, 244. Cal. Rep. Cit. 86, 188; 92, 124; 92, 127; 92, 128; 96, 161; 103, 324; 139, 585. § 1775. Warranty of provisions for domestic use. One who makes a business of selling provisions for domestic Dse warrants by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome. En. March 21, 1872. § 1776. Warranty on sale of goodwill. One who sells the goodwill of a business, thereby warrants that he will not endeavor to draw off any of the customers. En. March 21, 1872. CSal. Rep. Cit. 71, 148; 114, 665; 124, 432. § 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 prop- erty. En. March 21, 1872. Cal. Rep. Cit. 120, 424. § 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 dis- cernible by him without the exercise of peculiar skill; but It extends to all other d^ects. En. March 21, 1872. |§ 1784-1792 RIGHTS OF BUTER— SALB BY AUCTIOK. m CHAPTER IIL RIGHTS AND OBLIOATIONS OP THE BUYKEl. § 1784. Price, when to be paid. § 1785. Right to inspect goods. § 1786. Rigtita in case of breach of warranty. § 1784. Price, when 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. En. March 21, 1872. Cal. Rep. Clt. 76, 215; 82, 479. When seller must act as failee: See ante, sec. 1748. § 1785. Right to inspect goods. On an agreement for RpJe, with warranty, the buyer has a right to inspect the thing sold, at a seasonable time, before accepting it; and may rescind the contract if the seller refuses to permit him to do so. En. March 21, 1872. Rescission of contract by seller: See ante, sec. 1749. Rescission by buyer for breach of warranty: See next section. § 1786. Rights in case of breach of warranty. The breach of warranty entitles the buyer to rescin-d an agree- ment for sale, but not an executed sale, unless the war- ranty was Intended by the parties to operate as a condi- tion. En. March 21, 1872. Cal. Rep, Cit 96, 92. OHAPTESR rV. SALE BY AUCTION. § 1792. Sale by auction, what § 1793. Sale, when complete. § 1794. Withdrawal of bid. § 1795. Sale under written conditlCBa. § 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 Bale by public outcry to the highest bidder on the spot. En. March 21, 1872. Auctioneers, authority of generally: See sees. 2362, 2363. See regulations in Pol. Code, sees. 3284 et seq., re- specting auctioneers' bonds, license, etc. m SALE BY AUCTION. i 1793-1798 § 1793. Sale, when complete. A sale by auction is com- plete when the auctioneer publicly announces, by the fall of his hammer, or in any other customary manner, that the thing is sold. En. March 21, 1872. § 1794. Withdrawal of bid. Until the announcement mentioned in the last section has been made, any bidder may withdraw his bid, if he does so in a manner reason- ably sufficient to bring it to the notice of the auctioneer. En. March 21, 1872. § 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 ben- efit. En. March 21, 1872. § 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. En. March 21, 1872. § 1797. By bidding. The employment by a seller of any person to bid at a sale by auction, without the knowl- edge of the buyer, without an intention on the part of Buch bidder to buy, and on the part of the seller to en- force his bid, is a fraud upon the buyer which entitles him to rescind his purchase. En. March 21, 1872. § 1798. Auctioneer's memorandum of sale. When prop- erty 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 parties in the same manner as if made by them- selves. En. March 21, 1872. Am'd. 1873-4, 244. Auctioneer agent to make memorandum; See ante, seo. L624, subd. 4. 8S 1804-180T KXCHANQE— DEPOSIT. 198 TITLE II. EXCHANGE. S 1804. Exchanre, what. § 1805. Form of coatract. § 1806. Parties have riffht* and obllgatloms of sellen and buyera. S 1807. Warranty of money. 5 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. En. March 21, 1872. Cal. Rep. Cit. 71. 292. § 1805. Form of contract. The provisions of section 1789 apply to all exchanges in which the value of the thing to be given by either party is two hundred dollars or more. En. March 21, 1872. § 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 obligations of a seller as to the thing which he gives, and of a buyer as to that which he takes. En. March 21, 1872. Cal. Rep. Cit. 71, 293; 74. 379. § 1807. Warranty of money. On an exchange of money each party thereby warrants the genuineness of the money given by him. En. March 21, 1872. TITLE III. DEPOSIT. Chapter I. Deposit in General, §§ 1818-1827. II. Deposit for Keeping, §§ 1833-1872. III. Deposit for Exchange, § 1878. 8» ^ DEPOSIT IN GENERAL. §g 1813-1815 CHAPTER I. DEPOSIT IN GENERAL.. Article I. Nature and Creation of Deposit, §§ 1813-181S. n. Oblisations of the Depositary, §§ 1822-1827. ARTICLE I. NATURE AND CREATION OF DEPOSIT. § 1818. Deposit, kinds of. § 1814. Voluntary deposit, how made. § 1815. Involuntary deposit, how made. § 1816. Duty of involuntary depositary, § 1817. Deposit for keeplngr, what. § 1818. Deposit for exchange, what. § 1813. Deposit, kinds of. A deposit may be voluntary or involuntary; and for safekeeping or for exchange. En. March 21, 1872. Deposit for keeping: Post, sees. 1833 et seq. Gratuitous deposit, and incidents: Post, sees. 1844 et seq. Deposit for hire: Post, sees. 1851 et seq. Deposit for exchange: Post, sec. 1878. Loan for use: Sees. 1884 et seq; loan for exchange: Set. 1902; loan of money: Sec. 1912. Hiring: See post, sees. 1925 et seq. Innkeepers: Post, sees. 1859 et seq. Common carriers: Sees. 2085 et seq. Pledge: Post, sees. 2986 et seq. § 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 depos- itary. En. March 21, 1872. Finder of lost articles: See post, sees. 1864 et seq. Obligations of the depositary: See sees. 1822 et seq. § 1815. Involuntary deposit, how made. An involuntary deposit is made: 1. By the accidental leaving or placing of personal property in the possession of any person, without negli- gence on the part of its owner; or, §§ 1816-1822 DEPOSIT IN GENERAL. «• 2 In cases of fire, shipwreck, immdation, insurrection, riot or like extraordinary emergencies, by the owner of personal property committing it, out of necessity, to the care of any person. En. March 21, 1872. CJal. Rep. Cit. 58, 122. Involuntary deposit in cases of emergency must be ac- cepted: See next section. Involuntary deposit is gratuitous: See Post, sec. 1845. Degree of care requisite: See post, sec. 1846. Duties of depositary, when cease: See post, sec. 1847. f 1816. Duty of Involuntary depositary. The person with whom a thing is deposited in the manner described in the last section is bound to take charge of it, if able to do so. En. March 21, 1872. § 1817. Deposit for keeping, what. A deposit for keep- ing is one in which the depositary is bound to return the identi-cal thing deposited. En. March 21, 1872. Deposit for keeping: See post, sees. 1833 et seq. § 1818. Deposit for exchange, what. A deposit for ex- change is one in which the depositary is only bound to return a thing corresponding in kind to that which is de- posited. En. March 21, 1872. Deposit for exchange transfers title: Post, sec. 1878, Loan for exchange: See post, sees. 1902 et seq. ARTICLE n. OBWGATIONS OP THE DEPOSITARY, } lf2S. Depositary must deliver on "demand. I 1823. No obligation to deliver without demand. i 1824. Place of delivery. 5 1825. Notice to owner of adverse claim. § 1826. Notice to owner of thing wrongfully detained. § 1827. Delivery of thing owned jointly, etc. 5 1822. Depositary must deliver on demand. A de- positary mnst 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 IHrevented from doing so by the real owner thereof, or 401 DEPOSIT IN GENERAL. §§ 1822-182^ by the act of the law, and has given the notice required by section 1825. En. March 21, 1872. Cal. Rep. Cit. 93, 287; 113, 102. See post, sees. 1823, 1826. Care required of depositary: See post, sec. 1852. Depositary's lien: Consult section 3051 for a general lien upon personalty dependent on possession. Notice of adverse proceedings: Post, sec. 1825. Lien of innkeepers: See sees. 1861 et seq. § 1823. No obligation to deliver witliout demand. A 23 depositary is not bound to deliver a thing deposited with- -^.^.out demand, even where the deposit is made for a speci- ^ofified time. En. March 21, 1872. Cal. Rep. Cit. 113, 102. § 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. En. March 21, 1872. Cal. Rep. Cit. 58, 122. Delivery in soles: See sees. 1753 et seq. § 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. En. March 21, 1872. Cal. Rep. Cit. 93, 287. § 1826. Notice to owner of thing wrongfully detained. A depositary, who believes that a thing deposited with him is wrongfully detained from its true owner, may give him notice of the deposit; and if within a reasonable time afterward he does not claim it, and suflaciently establish his right thereto, and indemnify the depositary against the claim of the depositor, the depositary is exonerated 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 abligation changing his position in respect to the thing, to his prejudice. En. March 21, 1872. § 1827. Delivery of thing owned jointly, etc. If a thing deposited is owned jointly or in common by persons who Civil Ckyde-M §§1833-1835 DEPOSIT FOR KEEPING. 402 cannot agree upon the manner of its delivery, the depos- itary may deliver to each his proper share thereof, if it can be done without injury to the thing. En. March 21. 1872, ^ CHAPTER II. DEPOSIT FOR KEEPING. iLrtlcle L General Provisions, §§ 1833-1840. n. Gratuitoofi Deposit, §§ 1844-1847. III. Storagre, §§ 1851-1857. Ella. Warehousemen, §§ 1858-1858f. IV. Innkeepers, §§ 1859-1863. V. Findlnar, §{ 1864i-1872. ARTICLE L aENERAL. PROVISIONS. { 1833. Deporftor must iiraemnify 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. Injxiry to, or loss of thing deposited. $ 1839. Service rendered by depositary. § 1840. Extent of his liability for negligence. § 1833. Depositor must Indemnify depositary. A de- positor 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. En. March 21, 1872. Lenders* liabflity for defects of articles borrowed: See sec. 1894. § 1834. Obligation of depositary of animals. A de- I>ositary of living animals must provide them with suitable food and shelter, and treat them kindly. En. March 21, 1872. Lien on keepers of livestock: See post, sec. 3051. § 1835. Obligations as to use of thing deposited. A depositary may not use the thing deposited, or permit it to be used, for any purpose, without the consent of the depoedtor. He may not, if it is purposely fastened by the 403 DKPOSrr FOR KEEPING. §§ 1836-1840 depositor, open it without the consent of the latter, exce]>t in case of necessity. En. March 21, 1872. Cal. Rep. Cit. 94, 350; 112, 601. See next section. Hiring: See post, sees. 1925 et seq. § 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. En. March 21, 1872. § 1837. Sale of thing In danger of perishing. ]f a thing deposited is in actual danger of perishing before instruc- tions can be obtained from the depositor, the depositary may sell it for the best price obtainable, and retain the proceeds as a deposit, giving immediate notice of his pro- ceedings to the depositor. En. March 21, 1872. § 1838. Injury to, or loss of thing deposited. If a thing is lost or injured during its deposit, and the depositary refuses to inform the depositor of the circumstances under which the loss or injury occurred, so far as he has infor- mation concerning them, or willfully misrepresents the circumstances to him, the depositary is presumed to have willfully, or by gross negligence, permitted the loss or in- jury to occur. En. March 21, 1872. Cal. Rep. Cit. 53, 736. § 1839. Service rendered 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. En. March 21, 1872. See post, sees. 1965 et seq. § 1840. Extent 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. En. March 21, 1872. Am*d. 1873-4, 244. Cal. R^. dt. 133, 538. §§ 1&44-1M? DEPOSIT FOR KEEPING. #* ARTICLE n. GfRATUITOUS DEPOSIT. § 1844. GratultoTtt deposit, what. § 1845, Nature of involuntary deposit. § 1846. Degree of care required of gratuitous depositary. § 1847. His duties cease, when. Gen. Cit. to Art.— Cal. Rep. Cit. 103, 379; 116, 414. § 1844. Gratuitous deposit, what. Gratuitous deposit is a deposit for which the depositary receives no considera- tion beyond the mere possession of the thing deposited. En. March 21, 1872. Cal. Rep. Cit. 103, 379; 116, 414. Degree of care necessary: See next section. If this bailment correspond to the mandatum as generally under- stood, requiring on the part of the bailee some service to be performed with respect to the deposit, then sections 1839, supra, and sections 1975, 1976, 1977, post, must be read together with section 1846, in determining the degree of care which this bailee must use. § 1845. Nature of Involuntary deposit. An involuntary deposit is gratuitous, the depositary being entitled to no reward. En. March 21, 1872. Involuntary deposit defined: See ante, sec. 1815. § 1846, Degree of care required of gratuitous depositary. A gratuitous depositary must use, at least, slight care for the preservation of the thing deposited. En. March 21, 1872. Degree of care requisite: See note to sec. 1844, supra. § 1847. His duties cease, when. Th« duties of a gratu- itous depositary cease: 1. Upon his restoring the thing deposited to its owner; or, 2. Upon his giving reasonable notice to the owner to remove it, and the owner failing to do so within a reason- able time. But an involuntary depositary, under subdivi- sion 2 of section 1815, cannot give such notice until the emergency which gave rise to the deposit is past. En. March 21, 1872. *» DEPOSIT FOR KBBPING. f$ 1851-1854 ARTICLE m. STORAGfBJ. i 1S51. DepoeH for hire. I ISSX. Degree of care required of depositary for hire. I l^S. Rate of compensation for fraction of a WTOk, ete. I 1854. Termination of deposit. § lS5d. Same. I 1856. Lien for storage charges. 5 1S57. Storage property to be sold. § 1851. Deposit for hire. A deposit not gratuitous is called storage. The d^ositary in such case is called a depositary for hire. En. March 21, 1872. Cal. Rep. Cit. 120, 598. Receipts of warehousemen and wharfingers, act in rela- tion to: See post, Appendix, title Warehouses and Whar- fingers. Hiring in general: See post, sec. 1925. § 1852. Degree of care required of depositary for lilre. A depositary for hire must use at least ordinary care for the preservation of the thing deposited. En. March 21, 1872. Cal. Rep. Cit. 56, 486; 113, 104; 120, 598. Liability of innkeepers: See sec. 1859. Common carriers: Sees. 2100, 2114, 2194. Liability of warehousemen: See post, sees. 2120, 2121. § 1853. Rate of compensation for fraction of a weel<, etc. In the absence of a different agreement or usage, a de- positary for hire is entitled to one week's hire for the sustenance and shelter of living animals during any frac- tion of a week, and to half a month's hire for the storage of any other property during any fraction of a half month. En. March 21, 1872. Warehouseman making advances may sell property when: See Pol. Code, sec. 3156. § 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. En. March 21, 1872. §§ 1855-1858 - DEPOSIT FOR KEEPING. 40tt § 1855. Same. Notwithstanding an agreement respect- ing 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 continuing. En. March 21, 1872. § 1856. Lien for storage charges. A depositary for hire has a lien for storage charges, which is regulated by the title on liens. En. Stats. 1891, 470. Cal. Rep. Cit. 125, 599. § 1857. Storage property to be sold. If, from any cause other than want of ordinary csijm 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 per- ishable property shall be sold, unc'er the provisions of this section, upon which storage charges shall not be due and unpaid for one year at the time of such sale. En. Stats. 1891, 470. CaL Rep. Cit. 125, 599. CHAPTER [ARTICLE] Ilia. Article added March 21, 1905. Stats. 1905, 612. WAREHOUSEMEN. § 1858. Warehouse receipts, when must not be issued. § 1858a. Property not to be removed without consent in writing. § 1858b. Warehouse receipts, classification and effect of. § 1858c. Indorsement on negotiable receipt of property delivered. § 1858d. Negotiable receipts and their effect. § lS58e. Liability for loss by fire, § 1858f. Penalties and liabilities. § 1858. Warehouse receipts, when must not be issued. A warehouseman, wharfinger, or other person doing a stor- age 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 mechandise, grain, or other product, commodity, or thing has been, in good faith, received by such warehouseman, wharfinger, or other per- son, and is in his store or under his control at the time of issuing his receipt; nor must any second receipt for any 406a DRT^osiT FOK KBISPING. iS such property be issued while a former receipt for any part thereof is outstanding and uncanceled. En. Stats. 1905, 612. The statute of 1877-8, page 949, relating to warehousemen's and wbarf- inger's receipts, is codified in the above sections.— Coie CommlBSton- er's Note. § 1858a. Property not to be removed without consent In writing. No warehouseman, wharfinger, or other person must sell or incumber, ship, transfer, or remove beyond his immediate control any property for which a receipt has been given, without the consent in writing of the per- son holding such receipt plainly indorsed thereon in ink. En. Stats. 1905, 612. See note to § 1858, ante. § 1858b. Warehouse receipts, classification and effect of. Warehouse receipts for property stored are of two classes: first, transferable or negotiable; and second, non-transfer- able 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 re- ceipt, 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." E>n. Stats. 1905, 612. See note to § 1858, ante. § 1858c. Indorsement on negotiable receipt of property delivered. If a negotiable receipt is issued for any prop- erty, 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 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. En. Stats. 1905, 612. See note to § 1858, ante. § 1858d. Negotiable receipts and their effect. If a non- negotiable receipt is issued for any property, neither the §§ 1858e-1859 DEPOSIT FOR kieeptnG. 4»$b person issuing nor any other person in whose care or con- trol the property comes must deliver any part thereof, ex- cept upon the written order of the person to whom the re- ceipt was issued. En. Stats. 1905, 612. See note to § 1858, ante. § 1858e. Liability for loss by fire. No warehouseman or other person doing a general storage business is responsi- ble 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. En. Stats. 1905, 613. See note to § 1858, ante. § 1858f. Penalties and liabilities. Every warehouse- man, wharfinger, or other person who violates any of the provisions of sections eighteen hundred and fifty-eight to eighteen hundred 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 dlso liable to any person aggrieved by such violation for all damages, 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. En. Stats. 1905, 613. See note to § 1858, ante. ARTICLE IV. iNNKBEPEaaa. § 1859. Innkeeper's liability. § 1860. How exempted from liability. I 1S61. Lien of boarding and lo^aging house keepers. § 1862. Unclaimed baggage may be sold at auction. Notice. § 1863. Keeper to post rates of cbargres. § 1859. Innkeeper's liability. The liability of an inn- keeper, hotel-keeper, boarding and lodging-house keeper, for losses of or injuries to personal property, other than money placed by his guests, boarders, or lodgers under his care, is that of a depositary for hire; provided, how- ever, 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 40t DEPOSIT FOR KEEPING. §§ 1860-B82 in writing with the owner thereof to assume a greater liability. En. March 21, 1872. Am'd. 1895, 50. Cal. Rep. Cit. 87, 485; 93, 261; 93, 262. Subd. 5—96, 492; 96, 493. See next section. Refusing to receive and entertain guests a misdemeanor: Pen. Code, sec. 365. Cubic air law: See post, Appendix, title Lodging-houses, § 1860. How exempted from liability. If an innkeeper, hotel-keeper, boarding-house or lodging-house keeper, keeps a fireproof 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 oflSce 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 there- in, nor in any case more than the sum of two hundred and fifty dollars for any or all such property of any indi- vidual guest, boarder, or lodger, unless he shall have giv- en a receipt in writing therefor to such guest, boarder, or lodger. En. March 21, 1872. Am*d. 1895, 50. § 1861. Lien of boarding and lodging house keepers. Hotel men, boarding-hous« 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 accommoda- tion, board and lodging, and room rent [and] such extras as are furnished at their request, with the right to the possession of such baggage, or other property of value, until all such charges are paid. En. Stats. 1875-6, 78. Obtaining accommodations with intent to defraud: See Pen. Code, sec. 537. § 1862. Unclaimed baggage may be sold at auction* Notice. Whenever any trunk, carpet bag, valise, box, iKmdle, or other baggage has heretofore come, or shall I IMS DEPOSIT FOR KEEPINQ. 408 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 vhe same at pub- lic auctk.n, and out of the proceeds of sucn sale may retain the charges for storage, if any, and the expenses of adver- tising i^nd sale thereof; but no anch sfle shall De mada until the expiration of four weeks from the first publication of notice of such sale in a newspaper published In or near- est 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 ♦ouccessive 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 keep- er, and the time and place of sale; and the expenses in- curred for advertising 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 bal- ance arising from such sale shall not be claimed by the rightful owner within one week from the day of said sale, the same shall be paid into the treasury of the county in which such sale took place; and if the same be not claimed by the owner thereof, or his legal representatives, within one year thereafter, the same shall be paid into the gen- eral fund of said county. En. Stats. 1875-6, 78. § 1863. Keeper 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 lodg- ing-house, a printed copy of this section, and a statement of charge, or rate of charges, by the day, and for meals or items furnished, and for lodging. No charge or sum shall be collected or received by any such person for any service not actually rendered; or for any item not actually delivered, or for any greater or other sum than he is entitled to by the general rules and regulations of said hotel, inn, boarding 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. En. Stats. 1875-6, 79. m DEPOSIT FOR KEEPING. {§ 1864-18(>5 ARTICLE V. FINDING. I 1864. Obllgratlon of finder. § 1865. Finder of goods or money, or saving animals, duty of. § 1865. Finder to notify owner. I 1866. Claimant to prove ownership. § 1867. Reward, etc., to finder. § 1868. Finder may put thing found on storage. § 1869. When finder may sell the thing found. § 1870. How sale is to be made. § 1871. Property vests in finder; when; liability of flnvier to owner. § 1872. Thing abandoned. § 1864. Obligation 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. En. March 21, 1872. Lost money and goods: Sec. Pol. Code, sees. 3136-3142. Depositary for hire: See ante, sees. 1851 et seq. § 1865. Finder of goods or money, or saving animals, duty of. If the finder of a thing, other than a domestic ani- mal, takes possession thereof, or if a person saves any such animal from drowning or starvation, he must, within a rea- sonable time, inform the owner thereof, if known, and make restitution to him upon demand, without compensa- tion, 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 describ- ing the property and the time, place, and circumstances un- der which it was found or saved. Such justice must then summon three disinterested persons to appraise the prop- erty. They, or a majority of them, must make two lists of the valuation and description of the property, by them ver- ified, 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 Prop- erty Book." En. March 21, 1872. Am'd. 1905, 613. The section is amended to incorporate therein the provisions, upon the same subject, of sections 3136, 8137, and 3138 of the Political Code.— Code Commissioner's Note. J 1865. Finder to notify owner. If the finder of a thing knows or suspects who is the owner, he must, with reason- §§ 1866-1872 DEPOSIT FOR KEEPING. 410 able diligence, give him notice of the finding; and if he fails to do so, he is liable in damages to the owner, and has no claim to any reward offered by him for the recovery of the thing, or to any compensation for his trouble or expenses. En. March 21, 1872. If owner is not known finder must report to justice of the peace and advertise. If he fails to do so he forfeits double the value thereof to the owner. Pol. Code, sees. 3136-3142. Finder, when guilty of larceny: See Pen. Code, sec. 485. § 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. En. March 21, 1872. § 1867. Reward, etc., to finder. The finder of a thing is entitled to compensation for all expenses necessarily in- curred by him in its preservation and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it. En. March 21, 1872. § 1868. Finder may put thing 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. En. March 21, 1872. § 1869. Wh«n finder may sell the thing found. The finder of a thing may sell it, if it is a thing which is com- monly the subject of sale, when the owner cannot, with reasonable diligence, be found, or being found, refuses, up- on demand, to pay the lawful charges of the finder, in the following cases: 1. When the thing is in danger of perishing, or of los- ing the greater part of its value; or, 2. When the lawful charges of the finder amount to two-thirds of its value. En. March 21, 1872. Lost money and goods: See Pol. Code, sees. 3136-3142. § 1870. How sale Is to be made. A sale under the pro- visions of the last section must be made in the same manner as the sale of a thing pledged. En. March 21, 1872. Cal. Rep. Cit. 136, 181. Sale of pledge: See post, sees. 3000 et seq. § 1871. Property vests In finder, when; liability of finder to owner. If no owner appears within six months tu DEPOSIT FOR EXCHANGE. $§ 1872-187V after such finding or saving and offers reasonable proof of his ownership, 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 prop- erty does not comply with the provisions of section eight- een hundred and sixty-five, or if, though he does so com- ply, 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 arising out of such property by surrendering, or offering to sur- render, it in satisfaction thereof. En. March 21, 1872. Am'd. 1905, 614. The seetion ia amended to incorporate therein the provistoiis ot seo- tioQs S139, S140, and 31fi of the PoUtical Code.— Code Coininis«k»er'fl Note. § 1872. Thing abandoned. The provisions of thlts ar- ticle have no application to things which have been Inten- tionally abandoned by their owners. En. MarcJi 21, 1872, CaL Rep. at ±15, 590; 115, 592. CHAPTER IIL DEPOSIT FOR EXCHANOm. § 1878. Relations of the parties. § 187S. Relations of the parties. A deposit for ex- change transfers to the depositary, the title to the thingf deposited, and creates between him and the depositor the relation of debtor and creditor merely. En. March 21, 1872, Deposit for exchange defined: Ante, sec. 1818. Loan for exchange: See post, sec. 1902. §^ 1884-1588 Loan for use. an TITLE IV. LOAN. Chapter I. Loan for Use, §§ 1884-1896. II. Loan for Exchange, §§ 1902-1906. IIL Loan of Money, §§ 1912-1920. CHAPTER L LOAN FOR USB. § 1884. Loan, what, § 1885. Title to property lent. § 1886. Care required of borrower. § 1887. Same. § 1888. Degrree 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 retxirn 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. En. March 21, 1872. § 1885. Title to property 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. En. March 21, 1872. § 1886, Care required of borrower. A borrower for use must use great care for the preservation in safety and in good condition of the thing lent. En. March 21, 1872. § 1887. Same. One who borrows a living animal for use must treat it with great kindness, and provide every- thing necessary and suitable for it. En. March 21, 1872. Depositary of living animals for k^ping. See ante, sec. 1834. § 1888. Degree of skill. A borrower tor use is bound to have und to exercise such skill in the care of the thing lent as Le causes the lender to believe him to possess. En. March 2l, 1872. Compare with sec. 1976. *^^ LOAN Ton USB. §§ lS89-189b § 1889. Borrower, when to repair Injurres. A borrower for use must repair all deteriorations or injuries to the thing lent, which are occasioned by his negligence however slight. En. 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. En. March 21. 1872. See next section. § 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. En. March 21, 1872. Cal. Rep. Cit. 123, 493. § 1892. Borrower, when to bear expenses. The bor- rower 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 surren- dering the thing to the borrowed. En. March 21, 1872. § 1893. Lender liable for defects. The lender of a thing for use must indemnify the borrower for damage caused by defects or vices in it, which he knew at the time of lending, and concealed from the* borrower. En. March 21, 1872. See, also, ante, sec. 1833. Loan for exchange: See post, sees. 1902, 1906. § 1894. Lender may require return of thing lent. The lender of a thing for use may at any time require its re- turn, even though he lent it for a specified time or pur- pose. But, if, on the faith of such an agreement, the bor- rower has made such arrangements that a return of the thing before the period agreed upon would cause him loss, exceeding the benefit derived by him from the loan, the lender must indemnify him for such loss, if he compels such return, the borrower not having in any manner vio- lated his duty. En. March 21, 1872. Cal. Rep. Cit. 50, 348. § 1895. When returnable without demand. If a thing is lent for use for a specified time or purpose, it must be returned to the lender without demand, as soon as the §§ 1896-1906 LOAN EXDR EXCHANGE. 414 time has expired, or the purpose has been accomplished In other cases it need not be returned until demanded. En, March 21, 1872. § 1896. Place of return. The borrower of a thing for use must return it to the lender, at the place contemplated by the parties at the time of lending; or if no particular place was so contemplated by them, then at the place where it was at that time. En. Mar^ 21, 1872. CHAPTER II. LOAN FOR EXCHANGB. § 1902, IJoaa for exchange, what. § 1903. Same. § 1904. Title to property lent. § 1906. Contract cannot be modified by lender. § 1906. Certain sections applicable. § 1902. Loan for exchange, what. A loan for exchange is a contract by which one delivers personal property to another, and the latter agrees to return to the lender a similar thing at a future time, without reward for its use. En. March 21, 1872. Loan of money as a loan for exchange: See sec. 1912. § 1903. Same. A loan, which the borrower is allowed by the lender to treat as a loan for use, or for exchange, at his option, is subject to all the provisions of this chap- ter. En. March 21, 1872. § 1904. Title to property lent. By a loan for exchange the title to the thing lent is transferred to the borrower, and he must bear all its expenses, and is entitled to all its increase. En. March 21, 1872. § 1905. Contract cannot be modified by lender. A lender for exchange cannot require the borrower to fulfill his obligations at a time, or in a manner, different from that which was originally agreed upon. En. March 21, 1872. § 1906. Certain sections applicable. Sections 1893, 1895, and 1896, apply to a loan for exchange. En. March 21, 1872. 435 LOAN OF MONEY. § § iai2-l»U» CHAPTER IIL LOAN OF MONET. § 1912. Loan of money, defined. § 1913. Loan to be repaid in current money. § 1914. Loan presumed to be on interest. § 1915. Interest, what. § 1916. Annual rate. § 1917. Legal interest. § 1918. Parties may agrree on any rate. § 1919. Interest becomes part of principal, whetu § 1920. Interest on judgment. § 1912. Loan of money, defined. A loan of money is a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borrowed. A loan for mere use is governed by the chapter on Loan for Use. En. March 21, 1872. Cal. Rep. Cit. 57, 602. Interest: See sees. 1914 et seq. § 1913. Loan to be repaid In current money, A bor- n:)wer of money, unless there is an express contract to the coniiary, must pay the amount due in such money as is current at the time when the loan becomes due, whether such money is worUi more or les^ than the actual money lent. En. Ma.-f^h 21, i872. Cal. Rep. Clt 113, 229; 114, 261. See sec. 668, Cole Civ. Proc. Detriment caused by breach of obligation to loan: See post, sec. 3302. § 1914. Loan presumed to be on interest Whenever a loan of money is made, it is presumed to be made upon interest, unless it is otherwise expressly stipulated at the time in writing. En. March 21, 1872. Am'd. 1873-4, 244. Cal. Rep. Cit. 116, 546; 127, 675; 137, 471. § 1915. Interest, what. Interest is the compensation allowed by law or fixed by the parties for the use or for- bearance, or detention of money. En. March 21, 1872. Am'd. 1873-4, 245. Cal. Rep. Cit. 72, 154; 110, 315; 122, 120; 129, 547; 131, 363; 137, 469; 137. 470; 137, 471. § 1916, Annual rate. V/hen a rate of interest is pre- scribed by a law or contract, without specifying the perior] |§ 1917-1320 LOAN OF MONEY. 4:r of time by which such rate is to be calculated, it is to be deemed an annual rate. En. March 21, 1872. Cal. Rep. Cit. 92, 82. § 1917. Legal interest. Unless there is an express con- tract in writing, fixing a different rate, interest is payable on all moneys at the rate of seven per cent per annum, after they become due on any instrument of writing, except a judgment, and on moneys lent or due on any settlement of account, from the day on which the balance is ascer- tained, and on moneys received to the use of another and detained from him. In the computation of interest for a period less than a year, three hundred and sixty days are deemed to constitute a year. En. March 21, 1872. Am'd. 1873-4, 245; 1877-8, 87. Cal. Rep. Cit. 57, 643; 65, 499; 66, 238; 70, 186; 72, 153; 73, 319; 89, 635; 100, 22; 102, 292; 106, 573; 109, 380; 110, 316; 110, 317; 111, 72; 113, 229; 116, 545; 120, 109; 120, 122; 131, 363; 134, 674; 136, 371; 137, 470; 143, 527. Interest on judgments: See infra, sec. 1920. Compounding interest: See infra, sec. 1919. § 1918. Parties may agree on any rate. Parties may agree in writing for the payment of any rate of interest, and it shall be allowed, according to the terms of the agreement, until the entry of judgment. En. March 21, 1872. Cal. Rep. Cit. 60,232; 60,393; 65,393; 108,151; 110, 112; 113, 229; 114, 66; 116, 538; 116, 541; 116, 542; 116, 545; 116, 546; 120, 109; 120, 122. § 1919. Interest becomes part of principal, when. The parties may, in any contract in writing whereby any debt is secured to be paid, agree that if the interest on such debt is not punctually paid, it shall become a part of the principal, and thereafter bear the sai^e rate of interest as the principal debt. En. March 21, 1872. Cal. Rep. Cit 63, 106; 65. 393; 114, 66; 116, 536; 116, 538; 116, 529; 116, 540; 116, 541; 116, 542; 116, 545; 116, 546. § 19^. Interest on judgment. Interest is payable on judgments recovered in the courts of this state, at the rate qt seyen per cent per annuni, and no greater rate, but 417 HlFiING IN GENERAl.. §§ 1925-iy:i? such interest may not be compounded in any manner or form. E}n. Marcli 21, 1872. Am'd. 1873-4, 245. Cal. Rep. Cit. 49, 314; 127, 59; 129, 546; 137, 469; 137, 471. Interest as damages: See post, sec. 3287. TITLE V. Chapter I. Hiring in General, §§ 1925-1935. II. Hiring of Real Property, §§ 1941-1950. III. Hiring of Personal Property, §§ 1955-1959. CHAPTER I. HIRING IN GENERAL.. § 1925. Hiring, what. § 1926. Products of thing. § 1927. Qtriet possession. § 1928. Degrree of care, etc., on part of hirer. § 1929. Must repair injuries, etc. § 1930. Thing let for a particular pun)ose. § 1931. When letter may terminate the hiring. § 1932. Hirer may termi.,ate the hiring, when. § 1933. When hiring terminates. § 1934. When terminated by death, etc, of party. § 1935. Apportionment of hire. § 1925. Hiring, what. Hiring is a contract by which one gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time. Ell. March 21, 1872. Hiring personalty: See post, sees. 1955 et seq. • § 1926. Products of thing. The products of a thing hired, during the hiring, belong to the hirer. En. March 21, 1872. § 1927. Quiet possession. An agreement to let upon hire binds the letter to secure to the hirer the quiet pos- session of the thing hired during the term of the hiring, against all persons lawfully claiming the same. En. March 21, 1872. Cal. Rep. Cit. 86, 304; 117, 70. Duty of letter of building in this respect: See post, sec. 1941. Duty of letter of personalty likewise: See post, sec. 1955, Civil Code— 27 §§ 1928-1932 HIRING IN GENERAL. 5I8 § 1928. Degree of care, etc., on part of hirer. The hirer of a thing must use ordinary care for its preservation in safety and in good condition. En. March 21, 1872.. Cal. Rep. Cit. 118, 369. § 1929. Must repair injuries, etc. The hirer of a thing must repair all deteriorations or injuries thereto occas- ioned by his want of ordinary care. En March 21, 1872. Am'd. 1905, 614. The change consists in the substitution of the words "want of ordi- nary care" for "ordinary negligence."— Code Commissioiier's Note. Cal. Rep. Cit. 59, 566; 86, 304; 92, 551; 102, 480; 118, 369. Repairs. — This requirement results from the rule of the previous section, and the same rule applies to realty: See post, sec. 1941. With respect to the consequence of not complying with its provisions, see sec. 1931, infra. § 1930. 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. En. March 21, 1872. Am'd. 1905, 614. The change consists in the substitution of the words "he ift liable to the letter for all damages resulting from such use, or the letter" in place of the words "the letter who is responsible for its safety dur- ing such use in all events, or."— Code Commissioner's Note. Cal. Rep. Cit. 118, 369. § 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 par- ties; or, 2. Wlien the hirer does not, within a reasonable time after request, make such repairs as he is bound to make. En. March 21, 1872. § 1932. Hirer may terminate the hiring, when. 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, fulfill his obligations, if any, as to placing and securing the hirer in the quiet possession of the thing hired, or putting it into good condition, or repairing; or. 419 HIRING OF REAL PROPERTY. §§ 1933-1^41 2. When the greater part of the thing hired, or that part which was and which the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the want of ordinary care of the hirer. En. March 21, 1872. Am'd. 1905, 614. The change consists in the substitution of the words "want of ordi- nary care" for "ordinary negligence. "--Code Commissioner's Note. Cal. Rep. Cit. 92, 552. § 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 su- perior to that of the letter; or, 4. By the destruction of the thing hired. En. March 21, 1872. Cal. Rep. Cit. 98, 425. § 1934. When terminated by death, etc., of party. If the hiring of a thing is terminable at the pleasure 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. En. March 21, 1872. § 1935. Apportionment 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. En. March 21, 1872. For the compensation to which a depositary for hire is entitled upon a termination of the deposit, see ante, sees. 1853-1855. CHAP'iad]R II. HIRING OF REAL PROPERTY. § IMl. Lessor to make dwelling-house fit for ita purpose. § 1942. When lessee may make repairs, etc. § 1943. Term of hiring when no limit is fixed. § 1944. Hiring of lodgings for indefinite term. I 1945. Renewal of lease by lessee's continued possessloa, § 1946. Notice to quit. § 1947. Rent, when payable. § 1948. Attornment of a tenant to a strang-er. § 1949. Tenant must deliver notice serverd on him. I 1950. Letting paxts of rooms forbidden. § 1941. Lessor to make dwelling-house fit for Its pur- pose. The lessor of a building intended for the occupation 0§ 1942-1945 HIRING OP REAL PROPERTY. A» Of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupa- tion, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine. En March 21 1872. Am'd. 1873-4, 245. Cal. Rep. Cit. 59, 565; 59, 566; 66, 182; 76, 174; 81 59' 86, 205; 86, 304; 92, 551; 92, 552; 102, 480; 124, '522; 124, 523; 128, 190. § 1942. When lessee may make repairs, etc. If within a reasonable time after notice to the lessor, of dilapida- tions which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the costs 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 condi- tions. En. March 21, 1872. Am'd. 1873-4, 246. Cal. Rep. Cit. 59, 565; 59, 566; 72, 312; 76, 174; 86, 205; 92, 550; 92, 552; 102, 480; 102, 481; 110, 220; 124, 523; 128, 190. § 1943. Term of hiring when no limit is fixed. A hiring of real property, other than lodgings and dwelling-houses, in places where there is no usage on the subject, is pre- sumed to be for one year from its commencement, unless otherwise expressed in the hiring. En. March 21, 1872. § 1944. Hiring of lodgings for indefinite term. A hiring of lodgings or a dwelling-house for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hir- ing at a monthly rate of rent is presumed to be for one month. In the absence of any agreement respecting the length of time or the rent, the hiring is presumed to be monthly. En. March 21, 1872. § 1945. Renewal of lease by lessee's continued posses- sion. If a lessee of real property remains in possession 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 payable monthly, nor in any case one year. En. March 21, 1872. Cal. Rep. Cit. 86, 440; 123, 591; 124, 248. m HIRING OF REAL PROPERTY. §§ 1946-1950 § 1946. Notice to quit. A hiring of real property, for a term not specified by the parties is deemed to be re- newed as stated in the last section, at the end of the term Implied by law, unless one of the 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. En. March 21, 1872. Cal. Rep. Cit. 86, 439; 124, 248. Termination of estates at will: See ante, sees. 789 et seq. § 1947. Rent, when payable. When there is no usage or contract to the contrary, rents are payable at the ter- mination of the holding, when it does not exceed one year. If the holdir»g is by the day, week, month, quarter, or year, rent is payable at the termination of the respective periods, as it successively becomes due. En. March 21, 1872. § 1948. Attornment of a tenant to a stranger. The at- tornment of a tenant to a stranger is void, unless it is made with the consent of the landlord, or in consequence of a iuds^ment of a court of competent jurisdiction. En. March 21, 1872. Grants of rents oi reversions: See ante, sec. 1111. Rights of lessor and lessee, on transfer of realty: See ante, sees. 821 et seq. § 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 writirg, and is responsible to the landlord for all damages which he may sustain by reason of any omission to in- form him of the notice or to deliver it to him [if] In writ- ing. En. March 21, 1872. Am'd. 1873-4, 246. § 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 con- trary; 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 build- ing, under the same landlord, is relieved from all obliga- tion to pay rent to him while such double letting of any room continues. En. March 21, 1872. Cubic air law: See post, Appendix, title Lodging-houses. §S 1865-1959 HIRING OF PERSONAL. PROPERTY. 422 CHAPTER III. HIRING OF PERSONAL. PROPERTY. § 1955. Obllg^ations of letter of personal property. § 19r>6. Ordinary expenses. § 1957. Extraordinary expenses. § 1958. Return of thing hired. § 1959. Charter-party, what. § 1955. Obligations of letter of personal property. One who lets personal property must deliver it to the hirer, secure his quiet enjoyment thereof against all lawful claimants, put it into a condition fit for the purpose for which he lets it, and repair all deteriorations thereof not occasioned by the fault of the hirer and not the natural result of its use. En. March 21, 1872. Quiet enjoyment: See ante, sec. 1927. § 1956. Ordinary expenses. A hirer of personal prop- erty must bear all such expenses concerning it as might naturally be foreseen to attend it during its use by him. All other expenses must he borne by the letter. En. March 21, 1872. § 1957. Extraordinary expenses. If a letter fails to ful- fill his obligations, as prescribed by section 1955, the hirer, after giving him notice to do so, if such notice can con- veniently be given, may expend any reasonable amount necessary to make good the letter's default, and may re- cover such amount from him. En. March 21, 1872. Cal. Rep. Cit. 106, 680. § 1958. Return of thing hired. At the expiration of the term for which personal property is hired, the hirer must return it to the letter at the place contemplated by the parties at the time of hiring; or, if no particular place was so contemplated by them, at the place at which it was at that time. En. March 21, 1872. § 1959. Charter-party, what. The contract by which a ship is let is termed a charter-party. By it the owner may either let the capacity or burden of the ship, continuing the employment of the owner's master, crew, and equipments, or may surrender the entire ship to the charterer, who then provides them himself. The master or a part owner may be a charterer. En. March 21, 1872. See ante, sec. 965. *^ 6E311VICE WITH EMPLOYMJiNT. jg Id^b-lalo TITLE VI. SERVICE. Chapter I. Service with Employment, §§ 1965-2003 II. Particular Employments, §§ 2009-2072. III. Service without Employment, §§ 2078-2079. CHAPTER L SERVICE WITH EMPLOYMENT. Article I. Definition of Employment, § 1965. II, Obligations of the Employer, §§ 1969-1971. III. Obligations of the Employee, §§ 1975-1992. IV. Termination of Employment, §g 1996-^)03. ARTICLE I. DEFINITION OF EMPLOYMENT. 5 1965. Employment, what. § 1965. Employment, what. The contract of employ- ment is a contract by which one, who is called the em- ployer, engages another, who is called the employee, to do something for the benefit of the employer, or of a third person. En. March 21, 1872. Cal. Rep. Cit. 55, 274; 80, 558; 124, 98. ARTICLE II. OBLIGATIONS OF THE EMPLOYER. § 1969. When employer must indemnify employee. § 1970. When not. § 1971. Employer to Indemnify for his own negligence. § 1969. When employer must indemnify employee. An employer must indemnify his employee except as pre- scribed in the next section, for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer, even though unlawful, unless the em- ployee, at the time of obeying such directions, beJieved them to be unlawful. En. March 21, 1872. Cal. Rep. Cit. 68, 173. § 1970. When not. An employer is not bound to in- demnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which §1970 §§ 1971-1975 SERVICE WITH EMl>LOYME?rr. 4^ he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employee, or unless the em- ployer has neglected to use ordinary care in the selection of the culpable employee. En. March 21, 1872. Am'd. 1903, 256. Cal. Rep. Git. 51, 117; 51, 257; 53, 36; 57, 29; 57, 31 66, 304; 68, 173; 68, 175; 70, 394; 73, 28; 79, 99 88, 367; 88, 368; 88, 371; 92, 392; 96, 273; 96, 498 98, 21; 98, 22; 98, 26; 100, 564; 100, 567; 103, 264 108, 132; 113, 601; 126, 64; 126, 65; 128, 53; 142. 255. § 1971. Employer to indemnify for his own negligence. An employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care. En. March 21, 1872. Cal. Rep. Git. 67, 609; 90, 499; 91, 58; 108, 153; 125, 635. ARTICLE III. OBLIGATIONS OF THE EMPLOYEE. § 1975. Duties of gratuitous employee. § 1976. Same. § 1977. Same. § 1978, Duties of employee for reward. § 1979. Duties of employee for his own benefit. § 1980. Contracts for service limited to two yeara. § 1981. Employee must obey employer. § il>82. Employee to conform to usage. § 1983. Degree of skill required. § 1984. Must use what skill he has. § 1985. What belongs to employer. § 1986. Duty to account. § 1987. Employee not bound to deliver without demaxid. § 1988. Preference to be given to employers. § 1989. Responsibility of employee for substitxite. § 1990. Responsibility for negligence. § 1991. Surviving employee. § 1992. Confidential employment. § 1975. Duties of gratuitous employee. One who, with- out consideration, undertakes to do a service for another, is not bound to perform the same, but if he actually enters upon its performance, he must use at least slight care and diligence therein. En. March 21, 1872. Service without employment: See post, sec. 2078. Obligations of gratuitous carrier: Sec. 2089. 425 SERVICE WITH EMPLOYMENT. §§ 1976-1981 § 1976. Same. 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. En. March 21, 1872. Compare with sec. 1888. § 1977. Same. 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 em- ployer that he will not do so. En. March 21, 1872. § 1978. Duties of employee for reward. One who, for a good consideration, agrees to serve another, must perform the service, and must use ordinary care and diligence therein, so long as he is thus employed. En. March 21, 1872. Cal. Rep. Git. 113, 104. Employee to use ordinary care. — He is bound to exer- cise a reasonable degree of skill, unless his employer knows of his want of skill: Sec. 1983; and is always bound to use such skill as he possesses: Sec. 1984. For the em- ployee's liability for his culpable negligence, see post, sec. 1990. § 1979. Duties of employee for his own benefit. One who is employed at his own request to do that which 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. En. 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 be- yond 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 compensation. En. March 21, 1872. Cal. Rep. Cit. 139, 81; 139, 84. Master and servant: See post, sees. 2009 et seq.; and as to apprenticeship: See ante, sees. 264 et seq. § 1981. Employee must obey employer. An employee must substantially comply v/ith all the directions of his employer concerning the service on which he is engaged, i§ 1982- ISS? SERVICE WITH EMPLOYMENT. 4S6 except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee. En. March 21, 1872. Am'd. 1873-4, 246. Obedience required from factor: Sec. 2027. § 1982. Employee to conform to usage. An employee must perform his service in conformity to the usage of the place of performance, unless otherwise directed by his employer, or unless it is impracticable, or manifestly in- jurious to his employer to do so. En. March 21, 1872. Cal. Rep. Git. 99, 371. § 1983. Degree of skill required. An employee is bound to exercise a reasonable degree of skill, unless his em- ployer has notice, before employing him, of his want of skill. En. March 21, 1872. Cal. Rep. Cit. 107, 209. § 1984. Must use what skill he has. An employee is al- ways bound to use such skill as he possesses, so far as the same is required, for the service specified. ESi. March 21, 1872. Am'd. 1873-4, 247. Cal. Rep. Cit. 107, 209. § 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 law- fully or unlawfully, or during or after the expiration of the term of his employment. En. March 21, 1872. Cal. Rep. Cit. 133, 638. § 1986. Duty to account. An employee must, on de- mand, render to his employer just accounts of all his transactions in the course of his service, as often as may be reasonable, and must, without demand, give prompt no- tice to his employer of everything which he receives for his account. En. March 21, 1872. § 1987. Employee not bound to deliver without demand. An employee who receives anything on account of his employer, in any capacity other than that of a mere serv- ant, 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. En. March 21, 1872. Servant to pay over without demand: See sec. 2014. 427 SERVICE WITH EMPI/JYMKNT. §§ 1988-UW6 § 1988. Preference to be given to employers. An em- ployee who has any business to transact on his own ac- count, similar to that intrusted to him by his employer, must always give the latter the preference. En. March 21, 1872. Am'd. 1873-4, 247. § 1989. Responsibility of employee for substitute. An employee who is expressly authorized to employ a substi- tute is liable to his principal only for want of ordinary care in his selection. The substitute is directly responsible to the principal. En. March 21, 1872. Delegation of agent's authority: See post, sees. 2349 et seq. § 1990. Responsibility for negligence. An employee 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 gratuitous, for the value of such services only as are prop- erly rendered. En. March 21, 1872. Cal. Rep. Cit. 78, 314. § 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 ren- dered is such as he can rightly perform without the aid of the deceased person, but not otherwise. En. March 21, 1872. § 1992. Confidential employment. The obligations pe- culiar to confidential employments are defined in the title on Trusts. En. March 21, 1872. Confidential employments: See title on Trusts, post, sees. 2215 et seq. ARTICLE IV. TERMINATION OF EMPLOYMENT. § 1996. Termination by death, etc., of employer. § 1997. Employment, how terminated. § 1998. Continuance of service in certain casefl. § 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: §§ 1997-2000 SERVICE WITH EMPLOTMIGNT. 428 1. The death of the employer; or, 2. His legal incapacity to contract. En. March 21, 1872. Cal. Rep. Cit. 76, 509. Termination of agency: See post, sees. 2355 et seq. § 1997. Employment, how terminated. Every employ- ment 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. En March 21, 1872. Cal. Rep. Cit. 124, 98. Termination of employment: See last section. Termination of agency generally: See post, sees. 2355 et seq. § 1998. Continuance 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 with- out notice, must continue his service after notice of the death or incapacity of his employer, so far as is neces- sary to protect from serious injury the interests of the employer's successor in interest, until a reasonable time aiter 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 em- ployment. En.* March 21, 1872. Cal. Rep. Cit. 76, 509. § 1999. Termination at will. An employment having 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. En. March 21, 1872. Cal. Rep. Cit. 124, 96. § 2000. Termination by employer for fault. An employ- ment, even for a specified term, may be terminated at any time by the employer, in case of any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued in- capacity to perform it. En. March 21, 1872. Cal. Rep. Cit. 69, 646. Servant, when may be discharged: See post, sec. 2015. Seaman, when may be discharged: See post, sec. 2050; wrongful discharge of seamen; Post, sec. 2057. <29 PARTICULAR EMPLOYMENTS. §§ 2001-2009 § 2001. Termination by employee for fault. An em- ployment, even for a specified term, may be terminated by the employee at any time, in case of any willful or per- manent breach of the obligations of his employer to him as an employee. En. March 21, 1872. Employee's compensation in such case: See post, sec. 2003. § 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. En. March 21, 1872. Cal. Rep. Cit. 69, 646. Discharging servant: See sec. 2015. § 2003. Compensation 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 services which he was to render as full performance. En. March 21, 1872. Terminating employment by employee: See supra, sec. 2001. CHAPTER II. PARTICULAR EMPLOYMENTS. Article I. Master and Servant, § § 2009-2016. n. Agents, §§ 2019-2022. III. Factors, §§ 2026-2030. rv. Shipmasters, §§ 2034-2044. V. Mates and Seamen, §§ 2048-2068. YI. Sliip's Maaa&«rs, §§ 2070-2072. ARTICLE I. MASTER AND SERVANT. § 2009. Servant, what. § 2010. Term of hiring. § 2011. Same. § 2012. Renewal of hiring. § 2013. Time of service. § 1:014. 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, other- wise than in the pursuit of an independent calling, and who in such service remains entirely under the control and §§ 2010-2014 PARTICULAR EMPLOYMENTS. 430 direction of the latter, who Is called his master. En. March 21, 1872. Cal. Rep. Cit. 124, 97; 124, 98; 131, 459; 138, 118. EJmployer and employee: See, generally, sees. 1965 et seq. Obligations of employer: Sees. 1969 et seq. Ohligations of employee: Sees. 1975 et seq. § 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 piece work, for no specified term. En. March 21, 1872. Cal. Rep. Cit. Ill, 316; 124, 97; 124, 98; 127, 592. § 2011. Same. 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 performed. En. March 21, 1872. Qsl. Rep. Cit. Ill, 317; 124, 97; 124, 98; 127, 592. § 2012. Renewal of 111 ring. Where, after the expiration of an agreement respecting the wages and the term of service, the parties continue the relation of master and servant, they are presumed to have renewed the agree- ment for the same wages and term of service. En. March 21, 1872. Cal. Rep. Cit. 89, 550; 145, 267. § 2013. Time of service. The entire time of a domestic servant belongs to the master; and the time of other serv- ants to such extent as is usual in the business in which they serve, not exceeding in any case ten hours in the day. En. March 21, 1872. § 2014. Servant to pay over without demand. A serv- ant must deliver to his master, as soon as with reasona- ble 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. En. March 21, 1872. One who appropriates to his own use property of his employer is guilty of embezzlement: Pen. Code, sec. 508. 431 PARTlCtTLAR EMPLOYMENTS. §§ 2015-2021 Employee not bound to deliver to employer without de- mand: See post, sec. 1987. § 2015. When servant may be discharged. A master 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 ser- vice, or of gross immorality, though unconnected with the same; or, 2. Ifjj 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 com- mencement of his service, of such a nature that, if the mastei* had known or contemplated it, he would not have so employed him. En. March 21, 1872. Termination of employment: See ante, sec. 2001. Compensation of employee dismissed for cause: See ante, s«c. 2002, AETICLE n. AGENTS. § 2019. Affent to conform to his authority. § 2020. Must keep his principal informed. § 2021. Collecting agent. § 2022. Responsibility of subagent. § 2019. Agent to conform to his authority. An agent must not exceed the limits of his actual authority, as de- fined by the title on Agency. En. March 21, 1872. Cal. Rep. Cit. 68, 162; 125, 614. Agency: Sees. 2295 et seq. Actual authority: Post, sec. 2316. Ostensible authority: Post, sec. 2317. § 2020. Must keep his principal informed. An agent must use ordinary diligence to keep his principal informed of his acts in the course of the agency. En. March 21, 1872. § 2021. Collecting agent. An agent employed to collect a negotiable instrument must collect it promptly, and take all measures necessary to charge the parties thereto, in §§ 2022-202S PARTICULAR EMPLOYMENTS. 432 case of its dishonor; and, if it is a bill of exchange, must present it for acceptance with reasonable diligence En March 21, 1872. § 2022. Responsibility of subagent. A mere agent of an agent is not responsible as such to the principal of the the latter. En. March 21, 1872. ARTICLE III. FACTORS. § 2026. Factor, what. I 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. En. March 21, 1872. Gal. Rep. Cit. 66, 461. Factor's authority: See sees. 2368, 2369. Factor's power to pledge principal's goods: See sees. 2368, 2991. § 2027. Obedience required from factor. A factor must obey the instructions of his principal to the same extent as any other employee, notwithstanding any advances he may have ma-de to his principal upon the property con- signed to him, except that if the principal forbids him to sell at the market price, he may, nevertheless, sell for his reimbursement, after giving to his principal reasonable no- tice of his intention to do so, and of the time and place of sale and proceeding in all respects as a pledgee. En. March 21, 1872. Cal. Rep. Cit. 85, 377. Obedience required from employees generally: Ante, sec 1981. § 2028, Sales on credit. A factor may sell property con- signed to him on such credit as is usual; but, having once 433 PARTICULAR EMPLOYMENTS. §§ 2029-2036 agreed with the purchaser upon the term of credit, may not extend it. En. March 21, 1872. Authority to sell on credit: Post, sec. 2368. § 2029. Liability of factor under guaranty conimission. A factor who charges his principal with a guaranty com- mission 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. En. March 21, 1872. § 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 remit- tance of the proceeds, cannot relieve himself from respon. sibility therefor without the consent of his principal. En. March 21, 1872. ARTICLE IV. SHIPMASTERS. § 2034. Appointment of master. § 2035. When must be on board. § 2036. Pilotage. § 2037. Power of master over seamen. § 2038. Power of master over passengers, § 2039. Impressing private stores. § 2040. When may abandon the ship. § 2041. Duties on abandonment. § 20*2. When master cannot trade on his own account. S 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. En. March 21, 1872. § 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. En. March 21, 1872. § 2036. Pilotage. On entering or leaving a port, har- bor, or river the master of a ship must take a pilot if one offers himself and while the pilot is on board the naviga- tion of the ship devolves on him. En. March 21. 1872. Civil Code— 28 §§ 2037-2044 t»ARTlCULAll EMPLOYMENTS. 484 Duties of pilots and pilot commissioners: See Pol. Code, fiecs. 2429-2491. § 2037. Power of master over seamen. The master of a ship may enforce the obedience of the mate and seamen to his lawful commands by confinement and other reason- able corporal punishment, not prohibited by acts of con- gress, being responsible for the abuse of his power. En. March 21, 1872. § 2038. Power of master over passengers. The master of a ship may confine any person on board, during a voy- age, for willful disobedience to his lawful commands. En. March 21, 1872. § 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 supplies on board to surrender them for the common want on pay- ment of their value, or giving security therefor. En. March 21, 1872. § 2040. When may abandon the ship. The master of a ship must not abandon it during the voyage, without the advice of the other oflacers. En. March 21, 1872. ■s 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 control, he is exonerated from liability. En. March 21, 1872. § 2042. When master cannot trade on his own account. The master of a ship, who engages for a common 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. En. March 21, 1872. § 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. En. March 21, 1872. § 2044. Authority of master. The authority and liability ^f the master of a ship, as an agent for the owners of the 485 PARTICULAR EMPLOYMENTS. §§ 2048-2060 ship and cargo, are regulated by the title on Agency. En. March 21, 1872. Agency in general: Post, sees. 2295 et seq. Bottomry, master may hypothecate upon; Post, sees. 3019 et seq. Respondentia, master may hypothecate upon: Post, sees. 3038 et seq. ARTICLE V. MATES AND SEAMEN. § 2048. Mate, what. § 2049. Seamen, what. § 2050. Mate and seamen, how engagred anvi discharged. § 2051. Unseaworthy vessel. § 2052. Seamen not to lose wages or lien by agrreemeat. § 2058. Special agreement with seamen. § 2054. Wages depend on freightage. § 2055. When wages, etc., begin. § 2056. Wages, where voyage is broken up before departure. I 2057. Wrongful discharge. § 2058. Wages, when not lost by wreck. § 2059. Certificate. § 2060. Disabled seamen. § 2061. Maintenance of seamen during slckneig. § 2062. Death on the voyage. § 2068. 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 disability he must take his place. By so doing he does not lose any of his rights as mate. En. March 21, 1872. § 2049. Seamen, what. All persons employed in the navigation of a ship, or upon a voyage, other than the master and mate, are to be deemed seamen within the provisions of this code. En. March 21, 1872. Cal. Rep. Cit 134, 620. § 2050. Mate and seamen, how engaged and discharged. The mate and seamen of a ship are engaged by the master, and may be discharged by him at any period of the voy- age, for willful and persistent disobedience or gross dis- qualification, but cannot otherwise be discharged before the termination of the voyage. En. March 21, 1872. §§ 2051-2057 PARTICULAR EMPLOYMENTS. 436 § 2051. Unseaworthy vessel. A mate or sepman is not bound to go to sea in a ship that is not seaworthy; and if there is reasonable doubt of its seaworthiness, he may re- fuse to proceed until a proper survey has been had. En. March 21, 1872. Seaworthiness defined: Post, sec. 2682. § 2052. Seamen not to lose wages or lien by agreement. A seaman cannot, by reason of any agreement, be de- prived 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. En. March 21, 1872. Wages in case of loss of ship: Post, sec. 2058. § 2053. Special agreement with seamen. No special 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. En. March 21, 1872. § 2054. Wages depend on freightage. Except as here- inafter provided, the wages of seamen are due when, and so far only as, freightage is earned, unless the loss of freightage is owing to the fault of the owner or master. En. March 21, 1872. § 2055. When wages, etc., begin. 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. En. March 21, 1872. § 2056. Wages, where voyage is broken up before de- parture. Where a voyage is broken up before departure of a ship, the seamen must be paid for the time they have served, and may retain for their indemnity such ad- vances as they have received. En. March 21, 1872. § 2057. Wrongful discharge. When a mate or seaman is wrongfully discharged, or is driven to leave the ship by 437 PARTICULAR EMPLOYMENTS. §§ 205»-2063 the cruelty of the master on the voyage, it is then ended with respect to him, and he may thereupon recover his full wages. En. March 21, 1872. § 2058. Wages, when not lost by wreck. 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. En. March 21, 1872. § 2059. Certificate. A certificate from the master or chief surviving ofiicer of a ship, to the effect that a sea- man exerted himself to the utmost to save the ship, cargo tnd stores, is presumptive evidence of the fact. En. March 21, 1872. § 2060. Disabled seamen. Where a mate or seaman is prevented from rendering service by illness or injury, in- curred 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 notwithstand- ing; but in case of a capture, a ratable deduction for sal- vage is to be made. En. March 21, 1872. § 2061. Maintenance of seamen 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 provision for his wants, must be borne by the ship till the close of the voyage. En. March 21, 1872. § 2062. Death on the voyage. If a mate or seaman dies during the voyage, his personal representatives are en- titled 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. En. March 21, 1872. J 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 will- ful injury thereto or to the ship, forfeits all wages due for the voyage to a mate or seaman. thus in fault. En. March 21, 1872. §§ 2064-2078 SERVICE WITHOUT EMPLX)YMENT. 438 § 2064. Seamen cannot ship goods. A mate or seaman may not, under any pretext, ship goods on his own account without permission from the master. En. March 21, 1872. Cal. Rep. Cit. 113, 30. § 2065. Embezzlement and injuries. (Repealed.) En. March 21, 1872. Rep. 1873-4, 247. § 2066. Law governing seamen. The shipment of of- ficers and seamen, and their rights and duties, are further regulated by acts of congress. En. March 21, 1872. ARTICLE VI. SHIP'S MANAGERS. 5 2070. Mana^rer, what. § 2071. Duties of manager. § 2072. Compensation. § 2070. Manager, wiiat. The general agent for the own- ers, 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. En. March 21, 1872. Cal. Rep. Cit. 121, 569; 121, 570. § 2071. Duties of manager. Unless otherwise directed, it Is the duty of the manager of a ship to provide for the complete 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. En. March 21, 1872. Cal. Rep. Cit. 121, 569. § 2072. Compensation. A managing owner is presumed to have no right to compensation for his own services. En. March 21, 1872. CHAPTER III. SERVICE WITHOUT EMPLOYMENT. § 2078. Voluntary interference with property. § 2079. Salvage. § 2078. Voluntary interference witli property. One who oflBiciously, and without the consent of the real or appar- ent owner of a thing, takes it into his possession for the purpose of rendering a service about it, must complete m CARRIAGE IN GENERAL. §§ 2079, 2085 such service, and use ordinary care, diligence, and reason- able 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. En. March 21, 1872. Employment without reward: Ante, sees. 1975 et seq. Gratuitous carriers: Post. sec. 2089. § 2079. Salvage. Any person, other than the master, mate, or a seaman thereof, who rescues a ship, her appur- tenances, or cargo, from danger, is entitled to a reasonable compensation 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, oflacers, or crew of another vessel belonging to the same owners; but the actual cost at the time of the services rendered by one such vessel to an- other, when in distress, are payable through a general average contribution on the property saved. En. March 21, 1872. Amd. 1873-4, 247. TITLE VIL CARRIAGE. Chapter I. Carriage in General, §§ 2085-2090. tl. Carriage of Persons, §§ 2096-2104. ni. Carriage of Property, §§ 2110-2155. IV. Carriage of Messages, §§ 2161-2162, V. Common Carriers, §§ 2168-2209. CHAPTER I. CARRIAGE IN GENERAI* § 2085. Contract of carriage. § 20S6. Different kinds of carriers. § 2087. Marine and inland carriers, what. § 2088. Carriers by sea. § 2089. Obligations of gratuitous carriers. § 2090. Obligations of gratuitous carrier who has begtm to carry. § 2085. Contract of carriage. The contract of carriage is a contract for the conveyance of property, persous, §§ 208e-2090 • CARRIAGE IN GENERAL. 440 or messages, from one place to another. En. March 21, 1872. Owner is liable for acts of driver: Pol. Code, sec, 2y36. Common carriers defined: Post, sec. 2168. Carriage of property: Post, sees. 2110 et seq. Carriage of persons: Post, sees. 2096 et seq. Carriage of messages: Post, sees. 2161, 2162, and 2207 et seq. § 2086. Different kinds of carriers. Carriage is either: 1. Inland; or, 2. Marine. En. March 21, 1872. § 2087. IVIarine and inland carriers, what. Carriers upon the ocean and upon arms of the sea are marine car- riers. All others are inlaid carriers. En. March 21, 1872. Inland carriers of property, rights and duties of: Post, sees. 2194 et seq. Marine carriers, rights and duties of: Post, sees, 2148 et seq., 2197 et seq. § 2088. Carriers by sea. Rights and duties peculiar to carriers by sea are defined by acts of Congress. En. March 21, 1872. ' See post, sees. 2197, 2198. Rights and duties of carriers generally: Post, sees. 2180 et seq., 2194 et seq. General average: Post, sees. 2148 et seq. § 2089. Obligations of gratuitous carriers. Carriers without reward are subject to the same rules as employees without reward, except so far as is otherwise provided Dy this title. En. March 21, 1872. Employees without reward: Ante, sees. 1975 et seq. Service without employment: Ante, sees. 2078 et seq. § 2090. Obligations of gratuitous carrier who 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 the per- son or thing carried to as favorable a position as before he commenced the carriage. En. March 21, 1872. Compare with sees. 1975, 1976, ante. 441 CARRIAGE OF PERSONS. §§ 2096-2101 CHAPTER II. CARRIAGE OF PERSONS. Article I. Gratuitous Carriage of Persons, § 2096. II. Carriage for Reward, §§ 2100-2104. ARTICLE I. GRATUITOUS CARRIAGE OF PERSONS. § 2096. DegH'ee of care required. § 2096. Degree of care required. A carrier of persons without reward must use ordinary care and diligence for their safe carriage. En. March 21, 1872. Duty of gratuitous employee, generally: Ante, sees. 1975, 1976. Carriers of persons, generally: Post, sees. 2180 et seq. ARTICLE II. CARRIAGE FOR REWARD. § 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. En. March 21, 1872. Cal. Rep. Cit. 63, 433; 89, 405; 137, 281; 147, 182. Intoxicated driver, duty to discharge: See Pol. Code, sec. 2933. Driver to fasten horses while standing: See Pol. Code, sec. 2933. Negligence of driver, liability of owner for: See Pol. Code, sec. 2936. § 2101. Vehicles. 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. En. March 21, 1872. Cal. Rep. Cit. 89, 406; 118, 653. §§ 2102-2U0 CARRIAGE OF PROPERTY. 442 § 2102. Not to overload his vehicle. A carrier of per- sons for reward must not overcrowd or overload liis vehicle. En. March 21, 1872. Railroad corporations to furnish accommodations: Ante, sec. 483. § 2103. Treatment of passengers. A carrier of persons for reward must give to passengers all such accommoda- tions as are usual and reasonable, and must treat t^xem with civility, and give them a reasonable degree of atten- tion. En. March 21, 1872. § 2104. Rate of speed and delays. A carrier of persons for reward must travel at a reasonable rate of speed, and without any unreasonable delay, or deviation from his proper route. En. March 21, 1872. CHAPTER III. CARRIAGE OF PROPERTY. Article I. General Definitions, § 2110. XL Obligations of the Carrier, §§ 2114-2123. III. Bill of Lading, §§ 2126-2132. IV. Freightage, §§ 2136-2144. V. General Average, §§ 2148-2155. ARTICLE L GENERAL. DEFINITIONS. § 2110. Freight, consignor, etc., what. § 2110. Freight, consignor, etc., what. Property car- ried 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 per- son to whom it is to be delivered is called the consignee. En. March 21, 1872. Freightage, when to be paid: Post, sees. 2136 et seq. For definition of bill of lading, see post, sec. 2126. 443 CARRIAGE OF PROPERTY. §§ 2114-2118 AETICLB n. OBLJGATIONS OF THE CARRIER. § 2114. Care and diligence required of carriers. § 2115. Carrier to obey directions. § 2116. Conflict of orders. § 2117. Stowage, deviation, etc. § 2118. Delivery of freight. § 2119. Place of delivery. § 2120. Notice when freight not delivered. § 2121. When consignee does not accept. § 2122. When consignee cannot be found. (Repealed.) § 2114. Care and diligence required of carriers. A car- rier of property for reward must use at least ordinary care and diligence in the performance of all Ms duties. A carrier without reward must use at least slight care and diligence. En. March 21, 1872. Cal. Rep. Cit. 121, 568. § 2115. Carrier to obey directions. A carrier must com- ply with the directors of the consignor or consignee to the same extent that an employee is bound to comply witu those of his employer. En. March 21, 1872. Employee's duty to obey employer: Ante, sec. 1981. § 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 mat- ters except the delivery of the freight, as to which he must comply with the directions of the consignee, unless the consignor has specially forbidden the carrier to receive orders from the consignee inconsistent with nis own. En. March 21, 1872. § 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 devia- tion from or delay in the voyage, nor do any other unnec- essary act which would avoid an insurance in the usual form upon the freight. En. March 21, 1872. Cal. Rep. Cit. 125, 685. § 2118. Delivery of freight. A carrier of property must deliver to the consignee, at the place to which it is ^d- §§ 2119-2122 CARRIAGE OF PROPERTY. 444 dressed, in the manner usual at that place. En. March 21, 1872. Cal. Rep. Cit. 94, 178. § 2119. Place of delivery. If there is no usage to the contrary at the place of delivery, freight must be delivered as follows: 1. If carried upon a railv^ay owned or managed by the carrier, 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 delivered at the wharf where the ship moors, within a rea- sonable 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 dili- gence, be found. En. March 21, 1872. Cal. Rep. Cit. 56, 486; 94, 178. Delivery to connecting carrier: Ante, sec. 2201. § 2120. Notice when freight not delivered. If, for any reason, a carrier does not deliver freight to the consignee or his agent, personally, he must give notice to the con- signee 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 resi- dence or business of the consignee be unknown to the car- rier, he may give the notice by letter dropped in the near- est postoffice. En. March 21, 1872. Am'd. 1873-4, 247. Cal. Rep. Cit. 56, 485; 56, 486; 94, 170; 94, 177; 94, 178; 94, 179; 110, 356. § 2121. When consignee does not accept. If a con- signee does not accept and remove freight within a rea- sonable time after the carrier has fulfilled his obligation to deliver, or duly offered to fulfill the same, the carrier may exonerate himself from further liability by placing the freight in a suitable warehouse, on storage, on account of the consignee, and giving notice thereof to him. En. March 21, 1872. Am'd. 1873-4, 248. § 2122. When consignee cannot be found. (Repealed.) En. March 21, 1872. Rep. 1873-4, 248. 44$ Carriage of property. §§ 2i26-2i.''o ARTICLE IIL BIIX. OF LADINa § 2126. Bin of lading, what. § 2127. Bill of lading negotiable. § 2128. Same. § 2129." Effect of bill of lading on rights, etc, of carrier. § 2130. Billa of lading to be given tb consignor. § 2121. Carrier exonerated by delivery according to bill of lading. § 2132. Carrier may denMind surrender of bill of lading before delivery, § 2126. Bill of lading, what. A bill of lading is an in- strument in writing, signed by a carrier or his agent, de- scribing 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 p^-son at a specified place. En. March 21, 1872. Cal. Rep. at. 61, 416. Issning fictitious bill of lading: Pen. Code, sec. 577. § 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 busi- ness, with like effect and in like manner as in the case of a bill of exchange. En. March 21, 1872. Cal. Rep. Cit. 61, 416; 110, 358. § 2128. Same. 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 indorsement. En. March 21, 1872. Cal. Rep. Cit. 61, 416. § 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, imless it is plainly inconsistent therewith. En. March 21, 1872. Cal. Rep. Cit. 61, 416. § 2130. Bills of lading to be given to consignor. A car- rier must subscribe and deliver to the consignor, on de- mand, any reasonable number of bills of lading, of the some tenor, expressing truly the original contract for car- §§ 2Ul-a37 CARRIAGE OF PROPERTY. 446 riage; and if he refuses to do so, the consignor may take the freight from him, and recover from him, besides, all damage thereby occasioned. En. March 21, 1872. Cal. Rep. Cit 61, 416. Duplicate receipts must be marked "duplicate": Fen. Code, sec 580. § 2131. Carrier exonerated by delivery according 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. En. March 21, 1872. Cal. Rep. at. 61, 416; 110, 357. See ante. s^. 2128. § 2132. CarHer may demand surrender of bill of lading before delivery. When a carrier has given a bill of lad- ing, or other instrument substantially equivalent thereto, he may require its surrender, or a reasonable indemnity against claims thereon, before delivering the freight. En. March 21. 1872. CaL B£^ Cit 61, 416. ARTICI^ IV. FREIGHTAGE. § 2m. Wben freightage is to b« paid. I 2137. Consignor, when liable for freightage. § 2138. Consignee, when liable. § 21». Natural increase of freight. § 2140. Apportiotmient by contract. § 2141, Same. § 2142. Apportkaunent according to dlstaaee. § 2143. Freight carried further than agreed, etc § 2144. Carrier's Hen for freightage. § 2t36. When freightage 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, hin. March 21, 1872. Freightage defined: Ante, sec. 2110. Freight defined: Ante, sec. 2110. § 2137. Consignor, when liabie for freightage. The con- signor of freight is presumed to be liable for the frelgnt- age, but if the contract between him and tlie carrier pro- 44T CARRIAGE OF PROPERTY. §§ 2138-2143 vides that the consignee shall pay it, and the carrier allows the consignee to take the freight, he cannot afterwards re- cover the freightage from the consignor. En. 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. En. March 21, 1872. § 2139. Natural Increase of freight. No freightage* can be charged upon the natural increase of freight. En. March 21, 1872. § 2140. Apportionment by contract. If freightage is ap- portioned by a bill of lading or other contract made be- tween a consignor and carrier, the carrier is entitled to payment, according to the apportionment, for so much as he delivers. En. March 21, 1872. § 2141. Same. 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 con- tract. En. March 21, 1872. § 2142. Apportionment according to distance. If a con- signee voluntarily receives freight at a place short of the one appointed for delivery, the carrier is entitled to a just proportion of the freightage, according to distance. If the carrier, being ready and willing, offer 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 freightage. En. March 21, 1872. § 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 entitled to additional compensation, and cannot refuse to deliver it, on the demand of the consignee, at the place and time of its arrival. En. March 21, 1872. §§ 2144-2152 CARRIAGE OF PROPERTY. 448 § 2144. Carrier's lien for freightage. A carrier has a lien for freightage, which is regulated by the title on liens. En. March 21, 1872. Liens generally: See post, sees. 2872 et seq. Lien on passenger's luggage: Post, sec. 2191. ARTICLE V. GENERAL. AVERAQB. 8 2148. Jettison and general average, what. 5 2149. Order of jettison. § 2150. By whom made. § 2151. Loss, how borne. § 2152. General average loss, how adjusted. I 2153. Values, how ascertained. I 2154. Things stowed on deck. § 2155. Application of the foregoing rules. § 2148. Jettison and general average v/hat. A carrier by water may, when in case of extreme peril it is neces- sary for the safety of the ship or cargo, throw overboard, or otherwise sacrifice, any or all the cargo or appurten- ances of the ship. Throwing property overboard for such purpose is called jettison, and the loss incurred thereby is called a general average loss. En. March 21, 1872. § 2149. Order of jettison. A jettison must begin with the most bulky and least valuable articles, so far as pos- sible. En. March 21, 1872. * § 2150. By whom nnade. A jettison can be made only by authority of the master of the ship, except in case of his disability, or of an overruling necessity, when it may be made by any other person. En. March 21, 1872. § 2151. Loss, how borne. The loss incurred by a jet- tison, when lawfully made, must be borne in due propor- tion by all that part of the ship, appurtenances, freight- age, and cargo for the benefit of which the sacrifice is made, as well as by the owner of the thing sacrificed. En. March 21, 1872. § 2152. General average loss, how adjusted. The pro- portions in which a general average loss is to be borne must be ascertained by an adjustment, in which the owner 449 CARRIAGE OF MESSAGES. §g 2163-2161 Of each separate interest Is to be charged with such pro- portion 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. En. March 21, 1872. § 2153. Values, how ascertained. In estimating values for the purpose of a general average, the ship and appur- tenances 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; add- ing, in each case, the amount made good by contribution. En. March 21, 1872. § 2154. Things 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 voyage. En. March 21, 1872. § 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. En. March 21, 1872. CHAPTER IV. CARRIAGE OF MESSAGES. I 2161. Obligation of carrier of messages. I 2162. Degree of care and diligence required. § 2161. Obligation of carrier of messages. A carrier of messages for reward, other than by telegraph or tele- phone, 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 with- in a distance of two miles from the main ofiice of the car- rier in the city or town to which the messages are trans- mitted, and the carrier is not required, in making the de- livery, to pay on his route toll or ferriage; but for any distance beyond one mile froni such office, compensation ClvU Cod«— 2« S§ 2162, Zm COMMON CARRIERS. 460 may be charged for a messenger employed by the carrier. En. March 21, 1872. Am'd. 1873-4, 248; 1905, 627. The change consists in the insertion of the words "or telephone" after "telegraph" in two places, thus making the section applicable to both telegraph and telephone companies. — Code Commissioner's Note. Cal. Rep. Cit. 66, 586; 128, 430. Neglect or postponement in delivery: See Pen. Code, sec. 638. Order of transmitting messages: Post, sec. 2208. Refusal to deliver message, penalty: Post, sec. 2209. Carrier of telegraphic messages: See post, sees, 2207 et seq. § 2162. Degree of care and diligence required. A car- rier of messages for reward must use great care and dili- gence in the transmission and delivery of messages. En. March 21, 1872. Am'd. 1873-4, 249. Cal. Rep. at. 66, 581; 66, 586; 123, 4S0; 130, 600, 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. lY. Common Carriers of Messages, §§ 2207-2209. ARTICLE I. OOMMON CARHISaS IN GSNSRAU § 2168. Common carrier, what. § 2169. obligation to accept freigrht. § 2130. Obligation not to give preference. » § 2171. What preferences he must give, § 2172. starting. § 2173. Compensation. § 2174. Obligations of carrier altered ob^ by MTreemeot. § 2175. Certain agreements void. § 2176. Effect of written ccmtract. § 2177. Loss of valuable lettera. § 2168. Common carrrer, what. Everyone who offers to the public to carry persons, property, or messages, ex- cepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. En. March 21, 1872, Am'd. 1873-4, 249. Cal. Rep. Cit. 66, 581; 66, 586. Carriage in general: Ante, sees. 2085 et seq. Inland and marine carriers defined: Ante, sec. 2087. 451 COMMON CARRIERS. §§ 21»-a72 Rights aad liabilities of carriers: See post, under "Car- riers of Persons and Carriers of Property/* sees. 2180 et seq. and 2194 et seq.; and as to rights and duties of car- riers by sea, see sec. 2088, ante. § 2169. Obligation to accept freight, A common carrier must, if able to do so, accept and carry whatever is offered to him, at a reasonable time and place, of a kinti that he undertakes or is accustomed to carry. En. Marcn 21, 1872, Cal. Rep. Cit. 70, 178; 81, 298. Refusal by railroad to carry passengers: Sec. 482, ante. Want of room: See post, sec. 2185. § 2170. Obligation not to give preference. A common carrier must not give preference, in time, price, or other- wise, to one person over another. Every common 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 vessels from their re- spective 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 at or within ten minutes after 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 competent jurisdiction, upon complaint filed by the district attorney of the county in the name of the people, and paid into the common school fund of the said county. En. March 21, 1872. AmU 1880, 2. Cal. Rep. Cit 70, 178. Time-table.— For railroads, see ante, sec. 481, and gener- ally, infra, sec. 2172. § 2171. What preferences he must give. A common carrier must always give a preference in time, and may give a preference in price, to the United States and to this state. En. March 21, 1872. § 2172. Starting. A common carrier must start at such time and place as he announces to the public, unless de- tained by accident or the elements, or in order to connect with carriers on other lines of travel. En. March 21, 1872. Am'd. 1873-4, 249. See sec 2170, ante, and see. 2196, post. S§ ZITZ-Zm COMMON CARRIERS. «8 § 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 re- fused, he may refuse to carry. En. March 21, 1872. Lien for freight: Ante, sec. 2144. LAen on luggage of passenger: Post, sec 2191. § 2174. Obligations 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. En. March 21, 1872. Am'd. 1873-4, 249. Cal. Rep. Cit. 120, 158; 120, 159. Compare with sec. 2176, infra, and sec. 2200, post. Til mi ting liability by special contract: Post, sec. 2175. § 2175. Certain agreements void. A common carrier cannot be exonerated, by any agreement made in antici- pation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants. En. March 21, 1872. GaL Rep. Cit 118, 689; 118, 690; 118, 691; 118, 695; 120, 158; 131, 589. § 2176. Effect of written contract. 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 man- ner of delivery therein stated; and also the limitation stated therein upon the amount of the carrier's liability in case property 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. En. March 21, 1872. Am'd. 1873-4, 249. Cal. Rep. Cit. 66, 299; 101, 1^; 113, 334; 118, 689; 118, 691; 131, 586; 131, 587; 131, 589. § 2177. Loss cf valuable letters. A common carrier is not responsible for loss or miscarriage of a letter, or pack- age having the form of a letter, containing money or notes, 453 COMMON CARRIERS. §§ 2180, 2181 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. En. Stats. 1873-4, 250. Messages, carriage of: See sec. 2161, ante. ARTICLE n. COMMON CARRIERS OF PERSONS. § 21S0. Obligation to carry luggage. § 2181. Luggage, what. Bicycles. § 2182. Liability for luggage. § 2183. Luggage, how carried and dellvererd. § 2184. Obligation to provide vehicles. § 2185. Seats for passengers. § 2186. Regulations for conduct of business. § 2187. Pare, when payable. § 2188. Ejection of passengers. § 2189. Passenger who has not paid fare. § 2190. Fare not payable after ejection. I 2191. Carrier's lien. § 2180. Obligation to carry luggage. A common carrier of persons, unless his vehicle is fitted for he reception of persons exclusively, must receive and carry a reasonable amount of luggage for each passenger without charge, ex- cept for an excess of weight over one hundred pounds to a passenger: provided, that if such carrier be a proprietor of a stage line, he need not receive and carry for each pas- senger by such stage line, without charge, more than sixty pounds of luggage. En. March 21, 1872. Am'd. 1877-8, 87; 1905, 615. The change consists in the substitution of the word ''need" for "may." The present section would seem to prohibit a carrier by stage from receiving more than sixty pounds of luggage, wherein it was mani- festly intended only to relieve him, at his election, from receiving a irreater amount. — Code Commissioner's Note. Cal. Rep. Cit. 70, 172; 85, 330. § 2181. Luggage, what. Bicycles. Luggage may con- sist of whatever the passenger takes with him for his per- sonal use and convenience according to the habits or wants of the particular class to which he belongs, either with ref- erence to the immediate necessities, or to the ultimate pur- pose 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. En. March 21, 1872. Am*d. 1897, 4. CslL Rep, at 70, 173; 85, 330. |§ 2182-2186 COMMON CARRIERS. 454 § 2182. 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. En. March 21, 1872. Cal. Rep. Cit 70, 173. See sec 2194, post. Lien on baggage for fare: See sees. 2191, 3051, post. § 2183. Luggage, how carried and delivered. A com- mon 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 carries the passenger to whom it belonged, except that where lug-gage is transported by rail, it must be checked and carried in a regular baggage car; and whenever pas- sengers neglect or refuse to have their luggage so checked and transported, it is carried at their risk. En. March 21, 1872, Am'ti. 1873-4, 250. Cal. Rep. Cit. 70, 173. Duty to furnish check: See sec. 479, ante. § 2184. Obligation to provide vehicles. A common car- rier of persons must provide a sufficient number of vehicles to accommodate all the passengers who can be reasonably expected to require carriage at any one time. En. March 21, 1872. See next section. § 2185. Seats for passengers. A common carrier of per- sons must provide every passenger with a seat. He must not overload his vehicle by receiving and carrying more passengers than its rated capacity allows. En, March 21, 1872. Compare with sec 483, ante. Duty to carry all who apply: See sec 2169. § 2186. Regulations for conduct of business. A common carrier of persons may make rules for the conduct of his business, and may require passen-gers to conform to them, If they are lawful, public, uniform in their application, and reasonable. En. March 21, 1872. C^l. Rep, Cit 97, 464; 141, 732. 466^ COMMOH CARRIERS. If tUfl-mi Rules and regulations: See ante, sec 465, subds. 10, 11, and sec. 484. § 2187. Fare, when payable. A common carrier may demand the fare of passengers, either at starting or at any subsequent time. En. March 21, 1872. Cal. Rep. Cit. 81, 298; 97, 464. Penalty for overcharge: Pen. Code, sec. 525, § 2188. Ejection of passengers. A passenger who re- fuses to pay his fare or to conform to any lawful regula- tion 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. En. March 21, 1872. Cal. Rep. Cit. 81, 299; 97, 463; 141, 7^; 145, 452. Ejecting passenger for not paying fare: Sec. 487. § 2189. Passenger who has not paid fare, A passenger upon a railroad train who has not paid his fare before en- tering 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. En. March 21, 1872, Ejecting passenger for nonpayment of fare: Ante, sec. 487. § 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. En. March 21, 1872. § 2191. Carrier's lien. A common carrier has a Hen 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. En. March 21, 1872. See general principle stated in regard to lien for work and labor performed about personalty, post, sec. 3051. Lien for freight: Ante, sec. 2144. §§ 2194-2196 CXMCMON CARRIERS. *^ ARTICLE riL COMMON CARRIERS OP PROPBRTif, § aw. Liability of Inland carriers for loss. § 2195. When exemptions do not apply. § 2196. Liability for delay. § 2197. Liability of marine carriers. § 2198. Same. § 2199. Perils of sea, what. § 2200. Consignor of valuables to declare their nattrr©, § 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. § 2?')4. Sale of perishable property for freight. § 2194. Liability of Inland carriers for loss. Unless the consignor accompanies the freight and retains exclusive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself from liability pursuant to sections 2118 to 2122, for the loss or injury thereof from any cause whatever, except: 1. An inherent defect, vice, or weakness, or a spontane- ous 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 cautse. Ehi. March 21, 1872. Cal. Rep. Cit. 101, 194. Inland carrier defined: See ante, sec. 20S7. Liability as warehouseman: See ante, sec. 2120. Termination of liability: See ante, sees. 2118-2121. Selling perishable articles: See infra, sec. 2204. § 2195. When exemptions do not apply. A common car- rier 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. En. March 21, 1872. Am'd. 1905, 615. The change consists in the substitution of the words "want of ordi- nary care" for "ordinary negligence."— Code Commissioner's Note. § 2196. Liability for delay. A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence. En. March 21, 1872. Am'd. 1873-4, 251. Cal. Rep. Cit 101, 193. «r COMMON CARRIEtta. §§ am-zMi § 2197. Liability of marine carriers. A marine carrier is liable in like manner as an inland carrier, except for loss or injury caused by the perils of the sea or fire. En. March 21, 1872. § 2198. Same. The liability of a common carrier by sea is further regulated by acts of Congress. Eln. March 21, 1872. See, also, ante, sec. 2088. S 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. En. March 21, 1872. CaL Rep. Clt. 76, 147; 76, 148. § 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 un- manufactured state; of timepieces of any description; of negotiable paper or 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 arti- cles, unless he has notice upon his receipt thereof, by mark upon the package or otherwise, of the nature of the freight; nor is such carrier liable upon any package car- ried for more than the value of the articles named in the receipt or the bill of lading. En. March 21, 1872. Am*d. 1873-4, 251. CaL Rep. Cit 84, 313; 84, 314; 118, 689. § 2201. Delivery of freight beyond usual route. If a common carrier accepts freight for a place beyond his us- ual route, he must, unless he stipulates otherwise, de- liver 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. En. March 21, 1872. Cal. Rep. Cit 57, 463; 101, 1j*o; 118, 651. Delivery in general: See ante, sees. 2118, 2118. t§ mfS-Sm COMMON CAHHIERS. 4S8 § 2203. Proof to "be given in case of loss. If freight ad- dressed to a place beyond the usual route of the common carrier who first received it is lost or injured, he must, within a reasonable time after demand, give satisfactory proof to the consignor that the loss or injury did not oc cur while it was in his charge, or he will be himself lia- ble therefor. En. March 21, 1872. § 2203. Carrier's services, other thrn carriage and de- livery. 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 De- posit and Service. En. March 21, 1872. Deposit: See ante, sees. 1813 et seq. Service: See ante, sees. 1965 et seq. § 2204. Sale of perishable property for freight If, from any cause other than want of ordinary care and diligence on his part, a common carrier is unable to deliver perish- able property 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. En. Stats 1873-4, 251. Penalty for overcharges: Pen. CJode, sec. 525. ARTICXB IV. COMMON CARRIERS OP MESSAGES. § 2207. Order of transmission of telegraphic message*. § 2208. Order in other cases. § 2209. Damagres when message is refused or postponed. § 2207. Order of transmission of telegrapliic messages. A carrier of messages by telegraph must, if it is practica- ble, 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 publi- cation 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 re- ceived. En. March 21, 1872. m» TRUSTS IN GENERAL.. §§ 2208. 2209 Carriers of messages: See ante, sees. 2161, 216Z. Neglect or postponement in transmission: See Pen. Code, sec 638. § 2208. Order In other cases, s 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 transmissiosi of messages previously recwved. En. March 21, 1872. Delivery of messages: See ante, sec. 2161. § 2209. Damages when message Is refused or post- poned. Every person whose message is refused or post- poned, contrary to the provisions of this chapter, is en- titled to recover from the carrier his actual damages, and fifty dollars in addition thereto. En. March 21, 1872. TITLE VIIL TRUST. Chapter I. Trusts in General, §§ 2215-2244. IL Trusts for the Benefit of Third Persosw, §§ 2250-2289. CHAPTER I. TRUSTS IN GBNBRAU Articte L Nature and Creation of a Trust, § § 2215-2224. IL Obligations of Trustees, §§ 2228-2239. III. Obligations of Third Persons, §§ 2243-2244. ARTICLE I. NATURE AND CREATION OF A TRUST. § 2215. Trusts classifiifed. § 2216. Voluntary trust, what. S 2217. Involuntary trust, what. 8 2218. Parties to the contract. S 2219. What constitutes one a trustee, 8 222o! For what purpose a trust may be created. 8 2221. Voluntary trust, how created as to tmstor. § 2222. How created as to trustee. 8 2223. Involuntary trustee, who is. I 2224. Involuntary trust resulting from fraud, mistake, eitjw §§ 2215-2221 TRUSTS IN GENERAL. lit § 2215. Trusts classified. A trust is either: 1. Voluntary; or, 2. Involuntary. En. March 21, 1872. Cal. Rep. Cit. 58, 483; 132, 26. Subd. 1—138, 609. § 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. En. March 21, 1872. Cal. Rep. Cit. 85, 445. § 2217. Involuntary trust, what. An involuntary trust is one which is created by operation of law. En. March 21, 1872. Cal. Rep. Cit. 76, 471; 99, 590. Involuntary trust: See post, sees. 2223, 2224. § 2218. Parties to the contract. The person whose con- fidence creates a trust is called the trustor; 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. En. March 21, 1872. Cal. Rep. Cit. 82, 374. § 2219. What constitutes one a trustee. Everyoexfj who "^loluntarily 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 con- fidence, 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 con- fidence, obtains any control. En. March 21, 1872. Cal. Rep. Cit. 72, 559; 82, 373; 85, 446; 120, 323; 120, 678; 125, 683; 130, 357; 133, 493; 141, 61; 142, 69. § 2220. For what purpose a trust nnay be created. 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. En. March 21, 1872. Cal. Rep. Cit. 58, 482; o8, 483; 71, 532; 108, 656; 123, 144. § 2221. Voluntary trust, how created as to trustor. Sub- ject to the provisions of section 852, a voluntary trust is created, as to the trustor and beneficiary, by any words or acts of the trustor, indicating with reasonable certainty: ^^^ TRUSTS IN GENERAL. 5§ 2222-2224 1. An Intention on the part of the trustor to create a trust; and, 2. The subject, purpose, and beneficiary of the trust. En. March 21, 1872. Cal. Rep. Cit. 58, 483; 70, 452; 79, 625; 95, 167; 106, 656; 112, 284; 122, 25; 124, 421; 126, 191; 132, 27; 135, 367; 136, 96; 144, 318. Creation of involuntary trust: See sees. 2223, 2224. Trusts for benefit of third persons: See post, sec. 2251. § 2222. How created as to trustee. Subject to the pro- visions of section 852, a voluntary trust is created, as to the trustee, by any words or acts of his indicating, with 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. En. March 21, 1872. Cal. Rep. Cit. 77, 339; 79, 625; 85, 446; 95, 167; 108, 656; 122, 25; 132, 27; 135, 367; 136, 155; 137, 636. § 2223. Involuntary trustee, who Is. One who wrong- fully detains a thing is an involuntary trustee thereof, for the benefit of the owner. En. March 21, 1872. Cal. Rep. Cit. 58, 121; 58, 122; 107, 377; 118, 106. Compensation of involuntary trustee: See sec. 275. Involuntary trustee, who is: See post, sec. 2243. § 2224. Involuntary trust resulting from fraud, mis- take, 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. En. March 21, 1872. Cal. Rep. Cit. 55, 562; 58, 122; 58, 123; 67, 237; 71, 110; 76, 471; 77, 339; 85, 35; 85, 445; 86, 600; 98, 93; 103, 183; 107, 377; 112, 286; 118, 106; 126, 192; 131, 74; 132, 5; 133, 493; 141, 60; 141, 62; 142, 69; 144, 312. Involuntary trustee, who is: Post, sec. 2243; compensa- tion of: Post, sec. 2275. Si 2228-2230 TBUSTS IN GENERAL.. Ml ARTICLB II. OBLJOATIONS OF TRUSTEES. § 2228. Trustee's obllgratlon to good faith. § 2229. Trustee not to use property for his own profit. § 2230. Certain transactions forbidden. § 2231. Trustee's Imfluence not to be used for his advantagre. § 2232. Trustee not to assume a trust adverse to Interest of beneficiary. i 2238. To disclose adverse interest. I 2234. Trustee guilty of fraud, when. I 2235. Presumption against trustees. I 2236. Trustee mingling trust property with his own, I 2257. Measure of liability for breach of trust. S 2238. Same. S 2239. Cotrustees, how far liable for each other. § 2228. Trustee's obligation to good faith. In all mat- ters 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 ad- verse pressure of any kind. En. March 21, 1872. Cal. Rep. Clt. 82, 874; 86, 629; 94, 647; 112, 61; 183, 493; 186, 468; 142, 641; 144, 606; 147, 732. § 2229. Trustee not 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 unconnected witn the trust, in any manner. En. March 21, 1872. Cal. Rep. Cit. 82, 374; 93, 30; 97, 410; 109, 177; 112, 61; 120, 471; 124, 181; 180, 257; 131, 659; 133, 639; 145, 864; 146, 589; 147, 732. Purchaser from trustee charged with the trust, when: Post, sec. 2243. Presumption of undue influence on transactions between the trustee and beneficiary: Post, sec. 2235; violations of the duties of the trustee are fraudulent: Post, sec. 2234. § 2230. Certain transactions forbidden. Neither a trus- tee nor any of his agents may take part in any transaction concerning the trust in which he or anyone for whom he acts as agent has an interest, present or contingent, ad- yerse to that of his beneficiary, except as follows: 1. When the beneficiary, 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 in- fluence 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 contract and some not having it, the former grant permis- sion for themselves, and the proper court for the latter, in the manner above prescribed. En. March 21, 1872. Cal. Rep. Cit. 54, 106; 81, 319; 81, 323; 86, 629; 98, 177; 112, 61; 113, 237; 121, 285; 121, 287; 130, 257; 130, 433; 131, 659; 138, 95; 144, 606; 145, 363; 145, 365; 146, 410; 147, 732. Duty to inform beneficiary: Sec 2233, infra. Undertaking inconsistent trust: Post, sec. 2232. § 2237. Trustee's influence not to be used for his advan- tage. A trustee may not use the infiuence which his position gives him to obtain any advantage from his bene- ficiary. En. March 21, 1872. Cal. Rep. Cit. 94, 461; 103, 101; 113, 237; 138, 95; 142, 69; 142, 641. § 2232. Trustee not to assume a trust adverse to inter- est of beneficiary. No trustee, so long as he remains in the trust, may undertake another trust adverse in its nature to the interests of his beneficiary in the subject of the trust, without the consent of the latter. En. March 21, 1872. Cal. Rep. Cit 113, 237; 121, 328; 138, 95. Compare ante, sec. 2230. Trustee's duty to disclose adverse interest: Compare with sec. 2233, post. Bemoval of trustee: Post, sees. 2282, 2283. } 2233. To disclose adverse interest. If a trustee ac- quires any interest, or becomes charged with any duty, adverse to the interest of his beneficiary in the subject of the trust, he must imme<3 lately inform the latter thereof, and may be at once removed. En. March 21, 1872. Cal. Rep. Cit. 56, 562; 86, 629; 113, 237. § 2234. Trustee guilty of fraud, when. Every violation of the provisions of the preceding sections of this article is a fraud a^rainst the beneficiary of the trust. En. March 21, 1872. Cal. Rep. Cit 52, 406; 81, 319; 86, 629; 94, 461; 97, 410; 103, 102; 113, 237; 121, 328; 131, 79; 138, 95; 145, 36:i; 146, 589. §§ 2235-2^:39 TRUSTS IN GENERAL. 4tU § 2235. Presumption against trustee. All transactions between 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 bene- ficiary, are presumed to be entered into by the latter without suflScient consideration, and under undue influence. En. March 21, 1872. Cal. Rep. Cit 54, 440; 72, 559; 73, 161; 75, 529; 82, 374 94, 461; 103, 100; 103, 101; 120, 323; 120, 324; 130, 357 130, 358; 134, 172; 134, 173; 136, 463; 137, 183; 137, 693 . 137, 695; 137, 697; 142, 69; 147, 508. § 2236. Trustee mingling trust property with liis own. A trustee who willfully and unnecessarily min-gles the trust property with his own, so as to constitute himself in ap- pearance its absolute owner, is liable for its safety in all ervents, and for the value of its use. En. March 21, 1872. AmU 1905, 615. Tbe change consists in the addition of the words "and for the Taloe of its use" after "events." — Code Commissioner's Note. Cal. Rep. Cit 97, 202; 120, 536; 120, 537. § 2237. Measure of liability for breach of trust. A trus- tee who uses or disposes of the trust prc^ertv, contrary to section 2229, may, at the option of the beneficiary, be re- quired to account for all profits so made, or to pay the value of its use, and, if he has disposed thereof, to replace it, with Its fruits, or to account for its proceeds, with in- terest. En. March 21, 1872. Cal. Rep. Cit. 55, 563; 120, 471; 133, 639. Liability for noninvestment of fun«ds: See post, sec. 2262. Degree of diligence requisite: Post, sec. 2259. § 2238. Same. A trustee who uses or disposes of the trust property in any manner not authorized by the trust, bitt 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. En. March 21, 1872, OaL Rep. Cit. 136, 445. § 2239. Cotrustees, how far liable for each other. A trustee is responsible for the wrongful acts of a cotrustee to which he consented, or which, by his negligence, he en- abled the latter to commit, but for no others. En. March 21, 1872. Cal. R^. Cit 87, 6; 120, 471; 142, 641, Compare, also, this section with sec 22^, post 46a TRUSTS FOR BENEFIT OF THIRD FEKSl^S. |i 22«-2250 ARTICLE IIL OBLIGATIONS OP THIRD PERSONS. § 224S. Third person, when involuntary trustee. § 2244. When third person must see to application of trust property. S 2243. Third person, when involuntaxy trustee. 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 faith, and for a valuable consideration. En. March 21, 1872. Cal. Rep. Cit. 55, 562; 96, 307; 105, 64; 134, 657. § 2244. When third person must see to application of trust property. One who actually and in good faith trans- fers 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. Other persons must, at their peril, see to the proper application of money or other property paid or de- livered by them. En. March 21, 1872. CaL R^>. Gtt 118, 106. CHAPTER IL TRUSTS FOR THE BENEFIT OF THIRD PERSONa Articl« L Nature and Oeatlon of the Trust, §§ 2250-2254. II. ObliffaUons of Trustees. §§ 2258-2263. m. Powers Of Trustees, §§ 2267-2269. IV. Rights of Trustees, §§ 2273-2275. V. Termination of the Trust, §§ 2279-2283. VL &iccessic«i or Appointment of New Trustees, §§ 2287-2289. AUTICLE I. NATURE AND CREATION OF THE TRUST. § 2ffi0. Who are trustees within scope of this chapter. § 225L Creation of trust. § 2252. Trustees appointed by court. § 2253. Declaration of trust. § 22&1. Same. § 2250. Who are trustees within scope of this chapter. The provisions of this chapter apply only to express trusts, crested for the benefit of anot^ifir tlian the trustor, and in cava §§ 2251-2258 TRUSTS FOR BENEFIT OP THIRD PERSONS. 466 whicli the title to the trust property is vested in the trustee; not including, however, those of executors, administrators, and guardians, as such. En. March 21, 1872. CaL Rep. Cit 137, 638; 140, 125; 145, 649. § 2251. Creation of trust. The mutual consent of a trustor and trustee creates a trust of which the beneficiary may take advantage at any time prior to its rescission. En, March 21, 1872. Gal. Rep. Cit. 61, 334; 91, 193; 95, 168; 110, 576; 122, 25. Revoking trust, beneficiary's consent necessary: Post, sec. 2280. Promise for benefit of third person: See ante, sec, 1559. J 2252. Trustees appointed by court. When a trustee is appointed by a court or public officer, as such, such court or officer is the trustor, within the meaning of the last •ection. En. March 21, 1872. Cal. Rep. Cit. 91, 193; 142, 16. § 2253. Declaration of trust. The nature, extent, and object of a trust are expr^sed in the declaration of trust. En. March 21, 1872. § 2254. Same. All declarations of a trustor to his trustees, in relation 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 trustor are merged therein. En. March 21. 1872. ARTId^ EL OBLIGATIONS OF TRUSTEES. § 22SS. Trttstees most ob«7 dedaxation of traat. § 2259. Degree of care and diligence In execntion of trust. § 2250. Duty of trustee as to appointmcaat of successor. § 2261. Investmoit at money by trustee. § 2262. Interest, simple or compound, cm omission to Inrwrt trust moneys. § 2263. Purchase by trustee of claims against trust fund. § 2258. Trustees must obey declaration of trust. A trustee mx^ fulfill the purpose of the trust as declared at its creation, and must follow all the directions of the trofltor given at that time, except as modified hy the cob- m TRUSTS FOR BE>nEFIT OP THIRD FK*SONS, 55 225»-2aS3 fittit of all parties interested, in the same manner, and to tlie same extent, as an employee. En, March 21, 1872, CaL Rep, Cit 58, 340; 142, 16. Trustee must follow declaration of trust: Compare with the duty of employee, sec 1981, ante. Authority of trustee, generally: See, post, sec 2267. § 2259. Degree of care and diligence in execution of trust. A trustee, whether he receives any compensation or not, mnst use at least ordinary care and diligence in the execution of his trust. En, March 21, 1872. Obligationa of trustees: See, generally, ante, sees. 2228 et seq. § 2260. Duty of trustee as to appointment of successor. If a trustee procures or assents to his discharge from his oflBce, 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 disc^iarge. En, March 21, 1872, Succession or appointment of new trustees: See post, 2287 et seq. § 2261. Investment of money by trustee. A trustee must invest money received by him under the trust, as fast as he collects a sufficient amount, in such manner as to afford reasonable security and interest for the same. En, March 21, 1872. CaL Rep, Ctt. 137, 638. § 2262. interest, simple or compound, on omission to in- vest trust moneys- If a trustee omits to invest the trust moneys according to the last section, he must pay simple interest thereon, if such omission is negligent merely, and compound interest if it is willful. En. March 21, 1872. Cal. Rep. Cit 120, 471; 124, 573; 137, 638. Trustee's liability for interest: Compare with sec. 2237, ante. § 2263P Purchase by trustee of claims against trust fimd. A trustee cannot enforce any claim against the trust property which he purchases after or in contempla- tion of his appointment as trustee; but he may be al- §§ 2267-2269 TRUSTS FOB BENEFIT OF THIRD PERSONS. 468 lowed, by any competent court, to charge to the trust prop- erty what "he has in good faith paid for the claim, upon discharging the same. En. March 21, 1872. Gal. Rep. Cit. 62, 376; 147, 732. Purchasing debts against the trust estate prohibited: See ante, sec 2230. ARTICLE IIL POWERS OF TRUSTBasa. § 2267. Trustee's powers as agent. § 2268. All must act § 2269. Discretionary powers. § 2267. Trustee's powers 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. Bn. March 21, 1872. Cal. Rep. Cit 139, 594. Powers to two or more trustees: See post, sees. 2268, 2288, and, ante, sec. 860. Agent's sxAs binding principal: See post, sees. 2330-2339. For what purposes trusts may be created: See ante, sees. 857, 2220. § 2268. All mvst act. Where there are several cotrus- tees, all must unite in any act to bind the trust property, unless the declaration of trust otherwise provides. En. March 21, 1872. Survival of trust: See post, sec. 2288. Liability for acts of cotrustee: See ante, sec 2239. Executors, when one or majority may act: See Code Civ. Proc., sec. 1355. § 2269. Discretionary 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 court it not reasonably exercised, unless an absolute dis- cretion is clearly conferred by the declaratioii of trust En. March 21, 1872. CaL Rep. Cit 123, 648. «• TRUSTS FOR BENEFIT OF THIRD PERSONS. §§ 2223-2275 ARTICLE IV. RIGHTS OP TRUSTESa. § 2273. Indemnification of trustee. § 2274. Compensation of trustee. § 2275. Involuntary trustee. § 2273. Indemnification of trustee. A trustee Is en- titled to the repayment, out of ttie 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. En. March 21, 1872. Cal. Rep. Git 145, 649. Reimbursement an purchase of claims against estate. See ante, sec 2263. § 2274. Compensation of trustee. Except as provided in section 1700 of the Code of Civil Procedure, when a declaration of trust is silent upon the subject of compen- sation the trustee is entitled to the same compensation as an executor. If it specifies the amount of his compensa- tion, he is entitled to the amount thus specified and no more. If it directs that he shall be allowed a compensa- tion, but does not specify the rate or amount, he is en- titled to such compensation as may be reasonable under the cii umstances. En. March 21, 1872. Am'd. 1889, 334. Cal. -ep. Cit 56, 628. Compensation of trustees the same as that of executor where the declaration of trust is silent: See sec. 1618, Code Civ. Proc. Involuntary trustee entitled to no compensation, when: See sea 2275. § 2275. Jnvoiuntary trustee. An involuntary trustee, who becomes such through his own fault, has none of the rights mentioned in this article. En. March 21, 1872. Involuntary trustee defined: Sees. 2217, 2223, 2224, ante. §§ 2273-2283 TRUSTS POK BENEFIT OF THIED PERSONS. 4W ARTICLE V. TKRMINATION OP THE TRUST. § 2279. Tr ust , how extinguished. § 2280. Not revocable. § 2281. Tnistee's office, how vacated. § 2282. Trustee, how discharged. § 2283. Removal by superior coort. § 2279. Trust, how extinguished. A trust is extin- guished by the entire fulfillment of its object, or by such object becoming impossible or unlawful. En. March 21, 1872, CaL Rep, Cit 70, 331; 73, »); 84, 297; 113, 142; 124, 420. § 2280, Not revocable. A trust cannot be revoked by the trustor 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 trustor, and in that case the power must be strictly pursued. En. March 21, 1872. CaL Rep. at 70, 453; 109, 331; 113, 142; 122, 26; 128, 9. § 2281. Trustee's office, how vacated. The oflBice of a trustee is vacated: 1. By his death; or, 2. By his discharge. En. March 21, 1872, § 2282. Trustee, how discharged. A trustee can be dis- charged 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 declara- tion of trust; 4. By the consent of the beneficiary, if he had capacity to contract; 5. By the judgment of a competent tribunal, in a direct proceeding for that purpose, that he is of unsound mind; or, 6. By th« superior court Eku March 21, 1872. Am'd. 1888, 3. Cal. Rep. Cit 73, 20; 132, 542, § 2283. Removal by superior court. The suj)erior court may remove any trustee who has violated or is unfit to 471 TRUSTS FOR BENEFIT OF THIRD PERSONS. §§ 22jr7-22«y execute the trust, or may accept the resignation of a trustee. En. March 21, 1872. Am'd. 1880, 8. Cal. Rep. Cit 103, 250; 111, 635. ARTICLE VI. SUCCESSION OR APPOINTMENT OF NEW TRUSTEES. § 2287. Vacant trusteeship filled by court. § 2288. Survivorship between cotrostees. § 2289. Superior court as trustee. § 2287. Vacant trusteeship filled by court, llie super- ior court may appoint a trustee whenever there is a va- cancy, and the declaration of trust does not provide a prac- ticable method of appointment. En. March 21, 1872. Am'd. 1880, 8, CaL Rep. Cit. 70, 333; 91, 193. § 2288. Survivorship between cotrustees. On the death, renunciation, or discharge of one of several co- trustees, the trust survives to the others. En. March 21, 1872. Cal. Rep. Cit 70, 333. This section is consistent with section 860; see, also, €Uite, sec. 2268. Survival of guardianship: See ante, sec. 252. § 2289. Superior court as trustee. When a trust exists without any appointed trustee, or where all the trustees renounce, die, or are discharged, the superior court of the county where the trust property, or some portion thereof, is situated must appoint another trustee, and direct the execution of the trust. The court may, in its discretion appoint the original number, or any less number of trus- tees. En. March 21, 1872. Am'd. 1880, 8. Cal. Rep. Cit 70, 333; 101, li9; 111, 636; 115, 251; 123, $52; 133. 649. 55 229&-2297 AGIJNCy IN GENERAL,. gO TITLE IX, AGENCY. Chapter I. Agency In General, §§ 2295-2356, n. Particular Agencies, §§ 2362-23^. CHAPTER I. AGENCY IN GENBRAIi. Article L Definition of A&ency, §§ 2295-2300. IL Authority of Agents, §§ 2304-2326. HL Mutual Obligrations of Principals and Third P ersona, H 2530-2339. IV. Obligations of Agents to Third Persons, §§ 2342-2345. V. Delegation of Agency, §§ 2349-2351. VL Terminaticm of Agency, §§ 2355, 2356. ARTICLE I. DEFINITION OF AGENCT. § 229S. A^reccy, what. i 2296. Who may appoint, and wbo may be an agent. § 2297. Agents, general or speclaL § 2298. Agency, actual or ostensible. § 2299, Actual agency. § 2300. Ostensible agency. § 2295. Agency, what. An agent is one who represents another, called the principal, in dealings with third per- sons. Such representation is called agency. En. MarcH 21, 1872. Cal. Rep. Cit. 66, 461; 75, 128; 82, 81; 123, 302; 131, 326; 140, 620. Master and servant: See ante, sees. 2009 et seq. Factors: See ante, sees. 2026 et seq. Agents: See ante, sees. 2019-2022. § 2296. Who may appoint, and who may be an agent. Any person having capacity to contract may appoint an agent, and any person may be an agent. En. March 21, 1875. § 2297. Agents, general or special. An agent for a par- ticular act or transaction is called a special agent All <^hers are general agents. En. March 21, 1872. CaL Rep. Cit. 82, 4; 123, 302; 124, 685; 131, 32^ '"^S AGENCY IN GENERAL.. §§ 2298-2304 § 2298. Agency, actual or ostensible. An agency is either actual or ostensible. En. March 21, 1872. Actual agent's authority: Post, sees. 2315, 2316. 2318, 2319. Ostensible agent's authority: Post, sees, 2315, 2317-2319, 2334. § 2299. Actual agency. An agency is actual when the agent is really employed by the principal. En. March 21, 1872. Cal. Rep. Cit. 93, 30; 139, 594. § 2300. Ostensible agency. An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent, who is not really employed by him. En. March 21, 1872. Cal. Rep. Cit. 82, 81; 89, 634; 113, 679: 117, 421; 124, 227; 130, 269; 137, 100; 139, 594; 143, 504; 144, 350; 147, 170. Compare, post, sec. 2317. ARTICLE n. AUTHORITY OF AGENTS. § 2304. What authority may be conferred. § 2305. Agent may perform acts requirerd of principal by coda. § 2306. Agent cannot have authority to defraud principal, § 2307. Creation of agency. § 2308. Consideration unnecessary. § 2309. Form of authority. I 2310. Ratification of agen^^s act. § 2311. Ratification of part of a transaction. § 2312. When ratification void. § 2313. Ratification not to work injury to third persoH* § 2314. Rescission of ratification. § 2315. Measure of agent's authority. § 2316. Actual authority, what. § 2317. Ostensible authority, what. § 2818. Agent's authority as to persons having notice of restrictions upon It § 2319. Agent's necessary authority. § 2320. Agent's power to disobey Instructions. § 2321. Authority to be construed by its specific rather than by its gen- eral terms. § 2322. Exceptions to general authority. § 2323. What included in authority to sell personal property. 8 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 be conferred. An agent may be authorized to do any acts which his principal §§ 2305-2310 AGENCY IN GENERAL. 474 might do, except those to which the latter is bound to give his personal attention. En. March 21, 1872. Cal. Rep. Cit. 74, 589. Delegation of authority by agent: Sees. 2349-2351. § 2305. Agent may perform acts required of principal 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 contrary inten- tion clearly appears. En. March 21, 1872. Cal. Rep. Cit. 74, 589. § 2306. Agent cannot have authority to defraud prin- cipal. An agent can never have authority, either actual or ostensible, to do an act which is, and Is known or sus- pected by the person with whom he deals to be, a fraud upon the principal. En. March 21, 1872. Cal. Rep. Cit. 87, 262. § 2307. Creation of agency. An agency may be cre- ated and an authority may be conferred, by a precedent au- thorization or a subsequent ratification. En. March 21, 1872. Cal. Rep. Cit. 89, 248; 119, 650; 124, 685; 130, 434; 132, 98; 141, 311; 143, 504. § 2308. Consideration unnecessary. A consideration is not necessary to make an authority, whether precedent or subsequent, binding upon the principal. En. 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. En. March 21, 1872. Cal. Rep. Cit. 78, 632; 81, 541; 94, 549; 113, 227; 113, 229; 141, 311; 142, 403; 143, 366. Statute of frauds: Ante, sec. 1624. Power of attorney to execute mortgage: See post, sec. 2933. § 2310. Ratification of agent's act. 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 where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof. En. March 21, 1872. Cal. Rep. Cit. 68, 142; 82, 6; 94, 549; 106, 600; 109, 40; 113, 227; 113, 280; 118, 281; 114, 461; 119, 650, 127, 271; 180, 416; 180, 484; 141, 811; 142, 408; 148, 866. m AGENCY IN GENERAL. §jj 2311-2317 A ratification is not binding, and may be rescinded, If made without full knowledge of the facts: See post, sec. 2314. Eatification of part: See post, sec. 2811. § 2311. Ratification of part of a transaction. Ratifica- tion of part of an indivisible transaction is a ratification of the whole. En. March 21, 1872. Cal. Rep. Cit 113, 231; 118, 236. § 2312. When ratification void. 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. En. March 21, 1872. Cal. Rep. Clt. 63, 142; 106, 600; 107, 41. § 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. En. March 21, 1872. Gal. Rep. Cit 88, 281; 106, 600; 107, 41. § 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 ma- terial facts of the transaction ratified, but not otherwise. En. March 21, 1872. Cal. Rep. Clt 63, 142; 113, 287; 113, 238; 146, 99. § 2315. Measure of agent's authority. An agent has such authority as the principal, actually or ostensibly, con- fers upon him. En. March 21, 1872. Cal. Rep. Cit 66, 64; 68, 162; 77, 453. See infra, sees. 2317-2319, 2334; ante, sec. 2300. Actual agent defined: Sec. 2299. § 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. En. March 21, 1872. Cal. Rep. Cit. 66, 64; 144, 112; 147, 170. § 2317. Ostensible authority, what. Ostensible author- ity is such as a principal, intentionally or by want of ordl- IS 2318-2321 AGENCY IN GENERAL. He nary care, causes or allows a tlilrd person to believe the agent to possess. En. March 21, 1872. Cal. Rep. Cit. 66, 64; 66, 461; 82, 5; 87, 528; 95, 14; 108, 230; 113, 123; 137, 100; 141, 705; 143, 504; 147, 170. Ostensible agent defined: Sec. 2300. Estoppel from a subsequent ratification: See ante, sees, 2307, 2310, 2312-2314. § 2318. Agent's authopfty as to persons having notice of restrictions upon it. Every agent has actually such authority as is defined by this title, unless specially de- prived thereof by his principal, and has even then such authority ostensibly, except as to persons who have actual or constructive notice of the restriction upon his authority. En. March 21, 1872. Cal. Rep. Clt. 114, Z9Q; 137, 100. § 2319. Agent's necessary autliority. An agent has authority: 1. To do everything necessary or proper and usual, in the ordinary coarse 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 represen- tation is made. En. March 21, 1872. Cal. Eep. Cit. 55, 424; 61, 341; 68, 162; 75, 162; 87, 529; 95, 12. Subd. 2—130, 104; 137, 100. § 2320. Agent's power to disobey instructions. An agent has power to disobey instructions in dealing with 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. En. March 21, 1872. Cal. Rep. Cit. 70, 453. § 2321. Authority to be construed by its specific rather than by its general terms. When an authority is given partly in general and partly in specific terms, tne general authority gives no higher powers than those specifically mentioned. En. March 21, 1872. 4177 AG^rSCY IN GENERAL.. §§ 2322-2S26 § 2322. Exx^ptions to general authority. An authority expressed in general terms, lK)wever broati, does not au- thorize 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 II, chapter I, of the last title. En. March 21, 1872. Gal. Rep. Git. 81, 319; 84, 314; 92, 112; 121, 328; 123, 383; 145, 363. Bubd. 3—142, 641. Defining scope of agency: See ante, sec. 2319, subd. 2. Obligation of trustees: Ante, sees. 2228-2239. • § 2323. What included in authority to sell personal property. An authority to sell personal property includes authority to warrant the title of the principal, and the Quality and quantity of the property. En. March 21, 1872. Auctioneers, warranty by: See post, sec. 2362, subd. 3. § 2324. What included in authority to sell real property. An authority to sell and convey real property includes aa* thority to give the usual covenants of warranty. En. March 21, 1872. § 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 au- thority to receive the price. En. March 21, 1872. Gal. Rep. Git. 125, 614. Agent to collect: Ante, sec. 2021. § 2326. Authority of special agent to receive price. A sx>ecial agent to sell has authority to receive the price on delivery of the thing sold, but not afterwards. En. March 21, 1872. §§ 2330-2334 AGENCY IN GENERAL.. 4t8 ARTICLE III. MUTUAL OBLIGATIONS OF PRINCIPALS AND THIRD PERSONS. § 2330. Principal, how affected by acts of agent within the scope of his authority. § 2331. Principal, when bound by incomplete execution of authority. § 2332. Notice to agent when notice to principal. § 2333. Obligation of principal when agent exceeds his authority. § 2334. For acts done under a merely ostensible authority. § 2335. When exclusive credit is given to agent. § 2336. Rights of person who deals with agent without knowledge of agency. § 2337, Instrument intended to bind principal does bind him. § 2338. Principal's responsibility for agent's negligence or omission. § 2339. Prineipal's responsibility for wrongs willfully committed by the agent. § 2330. Principal, how affected by acts of agent within the scope of his authority. An agent represents his prin- cipal for all purposes within the scope of his actual or ostensible authority, and all the ri-ghts and liabilities which would accrue to the agent from transactions within such limit, if they had been entere»d into on his own account, aceme to the prineipaL En. March 21, 1872. Cal. Rep. Cit 117, 422; 118, 321; 131, 7; 139, 594; 141, 705. § 2331. Principal, when bound by incomplete execution of authority. A principal is bound by an incomplete execu- tion of an authority, when it is consistent with the whole puri>ose and scope thereof, but not otherwise. En. March 21, 1872. § 2332. Notice to agent, when notice to principal. 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 dili- gence, to communicate to the other. En. March 21, 1372. Cal. Rep. Cit. 103, 629; 141, 705. § 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 unau- thorized. En. March 21, 1872. § 2334. For acts done under a merely ostensible au- thority. A principal is bound by acts of his agent, under 479 AGENCY IN GENERAL. §§ 2335- 23S3 a merely ostensible authority, to those persons only who have in good faith, an«d without want of ordinary care, in- curred a liability or parted with value, upon the faith thereof. En. March 21, 1872. Am'd. 1905, 616. The change consists in the substitution of the words "want of wrffl- nary care" for "ordinary negrlisence."--Code CJonunlssloner'a Note. Cal. Rep. Clt. 117, 422; 130, 269; 143, 504. Ostensible authority: See ante, sec. 2317. § 2335. When exclusive credit is given to agent. If exclusive credit is given to an agent by the person dealing with him, his principal is exonerated by payment or other satisfaction made by him to his agent in good faith, before receiving notice of the creditor's election to hold him responsible. En. March 21, 1872. § 2336. Rights of person who deals with agent without knowledge of agency. One who deals with an agent with- out 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 no- tice of the agency. En. March 21, 1872. § 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 Huch intent is plainly inferable from th« instru- ment itself. En. March 21, 1872. § 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 principal is respon- sible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal. En. March 21, 1872. Cal. Rep. Git. 5a, 289; 118, S21; 119, 650; 138, 476; 138, 478. See sec. 2384, post. § 2339. Principal's responsibility for wrongs willfully committed by the agent. A principal is responsible for no §§ 2342-2344 AGENCY IN GENERAL. 4S0 other wrongs committed by his agent than those men- tioned in the last section, unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service. En. March 2x, 1872. Cal. Rep. Cit. 119, 650. ARTICLE rV. OBLIGATIONS OF AGENTS TO THIRD PERSOfNS. § 2342. Warranty of authority. § 234S. Agent's responsibility to third persons. I 2344. Obligation of ag^it to surrender property to third i>er8on. § 2345. Code provisions governing. § 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 has the authority which he assumes. En. March 21, 1872. Damages for breach of warrant of authority: Post, sec. 3318. § 2343. Agenfs 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 co him per- sonally 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. En. March 21, 1872. Master of ship personally liable: Post, sec. 2382. § 2344. Obligation of agent to surrender property to third person. If an agent receives anything for the bene- fit of his principal, to the possession of which another person is entitled, he must, on demand, surrender it to such person, or so much of it as he has under his control at the time of demand, on being indemnified for any ad- vance 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 principal.' En. March 21, 1872. Compare with sections on deposit: Ante, sees. X835, X82«. 181 AGENCY rN GENERAL. §§ 2345-2355 § 2345, Code provisions governing. The provisions of this article are subject to the provisions of part I, divi- sion first, of this code. En. March 21, 1872, See ante, sees, 2^42. ARTICLE V. DBLrEJGATION OF AGENCY. § 2349. Aj^eirt* s delegation of his powers. § 2350. Agent's unauthorized employment of subagent. 5 2351. Subagent rightfully appointed, represents principal. § 2349. Agent's delegation of his powers. An agent, un- less specially forbidden by his principal to do so, can dele- gate his powers to another person in any of the follow- ing 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 perform; 3. When it is the usage of the place to delegate sucli powers; or, 4. When such delegation is specially authorised by the principal. En. March 21, 1872. CaL Rep. Cit 92, 113; 102, 322; 110, 251; 124, 685; X24, 686; 124, 687. Subd. 4—124, 684. § 2350. Agenfs unauthorized employment of subagent. If an agent employs a subagent without authority, the former is a principal and the latter his agent, and the principal of the former has no connection with the lat- ter. En. March 21, 1872. See ante, sec. 2022. § 2351. Subagent rightfully appointed, represents prin- cipal. A subagent, lawfully appointed, represents 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. En. March 21, 1872. ARTICLE VI. TERMINATION OF AGENCT. § 2355. Termination of agency, § 2356. Same. § 2355. Termination of agency. An agency !s termi- nated, as to every person having notice thereof, hj: Civil Code— SI §§ 2356-23€2 PARTICULAR AGENCIES. 482 L The expiration of its term; 2. The extinction of its subject; 3. The death of the agent; 4. His renunciation of the agency; or, 5. The incapacity of the agency [agent] to act as such. En. March 21, 1872. Cal. Rep. Cit 69, 230. Subd. 4—121, 328. § 2356. Same. Unless the power of an agent is coupled with an interest in the subject of the agency, it is termin- ated, as to every person having notice thereof, by: 1. Its revocation by the principal; 2. His death; or, 3. His incapacity to contract En. March 21, 1872. Cal. Rep. Cit 70, 258; 70, 260; 75, 368; 89, 255; 92, 144; 131, 325. CHAPTER IL PARTICULAR AGBNCIBa Article L AncUomeers, §§ 2362-2363. II. Factors, §§ 2367-2369. m. Shipmasters and Pilots, §§ 237S-2385, rV. Ships' Managers, §§ 2388-23S9. ARTICLE L AUCnONEBRS. § 2362. Atjctloneer's authority from the seller. § 2863, Auctioneer's authority from the bidder. § 2362- Auctioneer's authority from the seller. An auc- tioneer, in tlie absence of fecial authorization or usage to the contrary, has authority from the seller only as fol- lows: 1. To sell by public auction to the highest bidder; 2. To sell for cash only, except such articles as are usu- ally sold on credit at auction; 3. To warrant, in like manner with other agents to sell, . according to section 2323; 4. To prescribe reasonable rules and terms of sale; 5. To deliver the thing sold, upon payment of the price, 6. To collect the price; and. dS PARTICULAR AGENCIES. §§ 2363-2368 7. To do whatever else is necessary, or proper ajid usual, in the ordinary course of business, for effecting these pur- poses. En. March 21, 1872. See Pol. Code, sees, Z2S4 et seq. § 2363. Auctioneer's authority from the bidder. An auctioneer has authority from a bitider at the auction, as well as from the seller, to bind both by a memorandum of the contract, as prescribed in the title on Sale. En. March 21, 1872. Concerning auctioneers: Pol. Code, sees. 3284-3324. Entries by auctioneer: See ante, sec. 1798; and see !gen- erally the chapter on "Sale by Auction," ante, sees. 1792- 179S. ARTICLE IL FACTORS. S 2367. S^tctor, wiiat § 2368. ActtiaJ authority ol factor. § 2369. Ostensible authority. § 2367. Factor, what A factor is an agent, as defined by section 2026. En. March 21, 1872. § 2368. Actual authority of factor. In addition to the authority of agents in- general, a factor has actual author- ity from his principal, unless specially restricted: L 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 En. March 21, 1872. CaL Rep. Cit 66, 461. Subd. 2—55, 424. See post, sec. 2991. § 2369. Ostensible authority. A factor has ostensible authority to deal with the property of his principal as his own. In transactions with persons not having notice of the actual ownership. En. March 21, 1872. CaL Rep. Cit 52, 589; 55, 424; 61, 420; 66, 460; 66, 461. §§ 2373-2377 PARTICULAR AGENCIES. 4M ARTICLE in. SHIPMASTERS AND PILOTS, § 2373. Authority of shipmaster on behalf of shlpowaer. § 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 cargro. § 2380. Authority to ransom ship. § 2381. Abandonment terminates master's power. § 2382. Personal liability for contracts concerning the ship. § 2383. Liabilitj^ for acts of persons employed upon the ship. § 2384. Responsibility for negligence of pilot. § 2385. Obligations of shipowner to owner of cargo sold. § 2373. Authority of shipmaster on behalf of shipowner. The master of a ship is a general a'gent for its owner in all matters concerning the same. En. March 21, 1872. Note. — This artig partnership has a lien on the partnership property for the debts due the creditors thereof^ and for money advanced 505 MINING PARTNERSHIPS. §§ 2515-252U by him for its use. This lien exists notwithstanding there is an agreement among the partners that it must not. l^n. March 21, 1872. Cal. Rep. Cit. 66, 578; 89, 371; 144, 773. Corresponding sections as to general partners: See sec 24C5, ante; see also sees. 2517, 2518, post. § 2515. Mine — Partnership property. The mining ground owned and worked by partners in mining, whether purchased with partnership funds or not, is partnership property. En. March 21, 1872. § 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 dissolving the partnership. The purchaser, from the date of his pur- chase, becomes a member of the partnership. En. March 21, 1872. Termination of partnership generally: See sees. 2449 et seq. § 2517. Purchaser takes, subject to Mens, unless, etc» A purchaser of an interest in the mining ground of a mining partnership takes it subject to the liens existing in favor of the partners for debts due all creditors thereof, or ad- vances made for the benefit of the partnership, unless he purchased in good faith, for a valuable consideration, with- out notice of such lien. En. March 21, 1872. § 2518. Takes with notice of lien, when. A 'purchaser of the interest of a partner in a mine when the partner- ship 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. En. March 21, 1872. § 2^519. 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 partnership, ex- cept by express authority derived from the members thereof. En. March 21, 1872. § 2520. Owners of majority of shares govern. The de- cision of the members owning a majority of the shares or § 2527 INSURANCE IN GENERAL. 50G interests in a mining partnership binds it in the conduct of its business. En. March 21, 1872. Cal. Rep. Cit. 89, 371. Majority of members in genejfal partnersliipB: Sec. 2428, ante. TITLE XI. INSURANCE. Chapter I. Insurance in General, §§ 2527-2649. II. Marine Insurance, §§ 2655-2746. III. Fire Insurance, §§ 2752-2757. IV. Life and Health Insurance, §§ 2762-2766. CHAPTER I. INSURANCE IN GENERAL*. Article I. Definition of Insurance, § 2527. n. What may be Insured, §§ 2531-2534. ni. Parties, §§ 2538-2542. rV. Insurable Interest, §§ 2546-2558. V. Concealment and Representations, §§ 2561-258. VI. The Policy, §§ 2586-2599, VII. Warranties, §§ 2603-2612. Vin. Premium. §§ 2616-2622. IX. Loss, §§ 2626-2629. X. Notice of Loss, §§ 2633-2637. XL Double Insurance, §§ 2641-^42. XII. Reinsurance, §§ 26«-264S. ARTICLE L DEFINITION C^" INSURANCE. § 2527. Insurance, what. § 2527. Insurance, what. Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability, arising from an unknown or contin- gent event. En. March 21, 1872. Cal. Rep. Cit. 107, 330; 125, 611. Insurance corporations: See sees. 414 et seq. Office and duties of insurance commissioners: Pol. Code, sees. 594-634. Destruction of insured property: Pen. Code, sec. 548. Arson: Pen. Code, sees. 447-455. Wt INSURANCE IN GENERAL. §$ 2531-2534 ARTICLE II. WHAT MAY BE INSURED. 5 3531. What events may be ii^ored against. § 2532. Insurance of lottery or lottery prize unauthorized. § 2533. Usual kinds of insurance. • § 2534. All subject to this chapter. § 2531. What events may be insured against. Any con- tingent 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, subject to the provisions of this chapter. En. March 21, 1872. Cal. Rep. Cit 107, S30. Insurable interest: See post, sees. 2546 et seq., 2659 et seq. § 2532. Insurance of lottery or lottery prize unauthor- ized. The preceding section does not authorize an insur- ance for or against the drawing of any lottery, or for or against any chance or ticket in a lottery drawing a prize. En. March 21, 1872. Lotteries: Pen. Code, sees, 324, 326. § 2533. Usual kinds of insurance. The most nsxial kinds of insurance are: 1. Marine insurance; 2. Fire insurance; 3. Life insurance; 4. Health insurance, and 5. Accident insurance: En. March 21, 1872. Marine insurance: See post, sees. 2655 et seq. Fire insurance: See post, sees. 2752 et seq. Life and health insurance: See post, sees. 2762 et seq. § 2534. All subject to this chapter. All kinds of insur- ance are subject to the provisions of this chapter. En. March 21, 1872. ARTICLE III. PARTIES TO THE OONTRACT. S 2638. Designation of parties. > 2539. Who may insure I 2540 Who may be insured. 5 254l' Assignment to mortgagee of thing insured. I 25^ New contract between insurer and assignee. §§ 2538-2542 INSURANCE IN GENERAL. 508 § 2538. Designation of parties. The person who under- takes to indemnify another by a contract of insurance is called the insurer, and the person indemnified is called the insured. En. March 21, 1872. § 2539. Wlio may iVisure. Anyone capable of making a contract may be an insurer, subject to the restrictions imposed by special statutes upon foreign corporations, nonresidents, and others. En. March 21, 1872. § 2540. Who may be insured. Anyone except a public enemy may be insured. En. March 21, 1872. §'2541. Assignment to mortgagee of thing insured. Where a mortgagor of property effects insurance in his own name, providing that the loss shall be payable to the mortgagee, or assigns a policy of insurance to the mort- gagee, 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 which would other- wise avoid the insurance will have the same effect, al- though 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, with the same effect as if it had been per- formed by the mortgagor. En. March 21, 1872. Am'd. 1905, 616. The change consists in the addition of the clause following "mortga- gee," and is designed to authorize a mortgagee in whose favor insur- ance is effected, to perform for the mortgagor any acts to be per- formed by him, with the same effect as if performed by the mortga- gor.— Code Commissionei-'s Note. Cal. Rep. Cit. 128, 19; 136, 547. § 2542. New contract between insurer and assignee. If an insurer assents to the transfer of an insurance from a mortgagor to a mortgagee, and, at the time of his assent, imposes further obligations on the assignee, making a new contract with him, the acts of the mortgagor cannot affect his rights. En. March 21, 1872. at INSURANCE IN GENEEAU SS 2546-2&0 AKTICLE IV. INSTJRABLfB INTSRSST. § 25*6, Insurable interest, what. § 2547. In what may consist. § 2548. Interest of carrier or depositary. § ^49. Mere expectancies. § 2550. Measure of interest In property. § 2551. Insurance without interest illegal, § 2552. When interest must exist. § 2553. Effect of transfer. § 2554. Transfer after loss. § 2555. Exception in the case of several subjects In o«e policy. § 2556. In case of the death of the insurer. § 2557. In the case of transfer between cotexi&nts. § 255S. PoUcy, when toM. § 2546. Insurable Interest, what. Every interest in property, or any relation thereto, or liability in respect thereof, of such a nature that a contemplated peril might directly damnify the insured, is an insurable interest. En. March 21, 1872. Partner: See post, sec. 2590. Bailees, etc.: See sec. 2548, infra. Future products insurable: See sec. 2549, infra. Life insurance: See post, sees. 2762, 2763. Stating insurer's interests in policy: See post, sees. 2568, 2587. § 2547. In what may consist. 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. En. March 21, 1872. § 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. En. March 21, 1872. § 2549. Mere expectancies. A mere contingent or ex- pectant interest in anything, not founded on an actual right to the thing, nor upon any valid contract for it, is not insurable. En. March 21, 1872. §§ 2550-2556 INSURANCE IN GKNKRAL. 510 § 2550. Measure of interest in property. The measure of an insurable interest in property is the extent to which the insured might be damnified by loss or injury thereot En. March 21, 1872. See also next section. Measure of indemnity in marine insurance: See post, sec. 2736. § 2551. Insurance without Interest, lllegaL The sole ob- ject of insurance is the indemnity of the insured, and if he has no insurable interest the contract is void. En. March 21, 1872. § 2552. When interest must exist. An interest insured must exist when the insurance takes effect, and when the loss occurs, but need not exist in the meantime. En. March 21, 1872. § 2553. Effect of transfer. Except in the cases speci- fied in the next four sections, and in the cases of life, ac- cident, and health insurance, a change of interest in any part of a thing insured, unaccompanied by a correspond- ing change of interest in the insurance, suspends the in- surance to an equivalent extent, until the interest in the thing and the interest in the insurance are vested in the same person. En. March 21, 1872. Transfer by partner: See sec. 2557, infra. Transfer by operation of law: Sec. 2556, infra. Transfer of thing insured does not transfer policy: See post, sec. 2593. Transfer of life insurance policy: See post, sec 2764. § 2554. Transfer after loss. A change of interest in a thing insured, after the oecurrence of an injury wnich re- sults in a loss, does not affect the right of the insured to indemnity for the loss. En. March 21, 1872. § 2555. Exception in the case of several subjects 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. En. March 21, 1872. § 2556. In case of the death of the insurer. A change of interest, by will or succession, on the death of the in- 511 INSURANCE IN GENERAL.. §§ 2557-2561 sured, does not avoid an insurance; and his interest in the insurance passes to the person taking his interest in the tiling insured. En. March 21, 1872. i 2557. In the case of transfer between cotenants. A transfer of interest hj one of several partners, joint own- ers, 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. En. March 21, 1872. Insurance by partner or cotenant: See post, sec. 2590. § 2558. Policy, when void. Every stipulation in a policy of insurance for the payment of loss, whether tlie person insured has or has not any interest in the property in- sured, or that the policy shall be received as proof of such interest, and every policy executed by way of gamin^g or wagering, is void. En. Stats. 1873-4, 255. AUTICLB V. CONCEALMENT AND REPRESENTATIONS. I 2661. Concealm^it, what. § 2562. Effect of concealment. § 2563. What must be disclosed. § 2564. Matters which need not be conuntmicated withcmt inquiry, § 2565. Test of materiality. § 2566. Matters which each is bound to know. § 2567. Waiver of communication. 8 2568. Interest of insured. I 2569. Fraudulent warranty. § 2570. Matters of opinion. § 2571. Representation, what. § 2572. When made. § 2573. How interpreted. § 2574. Representations as to future. § 2575. How may affect policy. § 2576. When may be withdrawn. § 2577. Time intended by representatlOHu § 2578. Representing information. § 2579. Falsity. § 2580. Effect of falsity. § 2581. MateriaUty. § 2582. Application of pi|0vlsloBS of this article. § 2583. Right to rescind. § 2561. Concealment, what. A neglect to communicate that which a party knows, and ought to communicate, is called a concealment En. March 21, 1872. Cal. Rep. Cit. 80, 443. Concealment. — "Party" refers to either party to the con- tract: See sec. 2563, infra. §§ 2562-2566 INSURANCE IN GENERAL. 612 CJoncealment in marine insurance: See post, sees. 2669 et seq. § 2562. Effect of co/iceafment. A concealment, whether intentional or unintentional, entitles the injured party to rescind a contract of insurance. En. March 21, 1872. Cal. Rep. Cit. 80, 443. § 2563. What must be disclosed. Each party to a con- tract 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 which the other has not the means of ascertaining, and as to which he makes no warranty. En. March 21, 1872. Cal. Rep. Cit. 80, 443. § 2564. Matters which need not be communicated with- out inquiry. Neither party to a contract of insurance is bound to communicate information of the matters follow- ing, 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 ought to know, and of which the former has no rea- son 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 other- wise material; and, 5. Those which relate to a risk excepted from tne policy, and which are not otherwise material. En. March 21, 1872. Cal. Rep. Cit. 125, 350. Waiver of communication: See infra, sec. 2567. Facts covered by warranty: See infra, sec 2569. § 2565. Test of materiality. Materiality is to be deter- mined 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. En. March 21, 1872. Materiality of representation: See infra, sec 2581. § 2566. IVIatters which 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 with that of the other, and which may affect either the political or material perils contemplated; and all general usages of trade. En. March 21, 1872. 513 INSURANCE IN GENERAL. g§ 2667-2076 § 2567. Waiver of communioation. The right to infor- mation of material facts may be waived, either by the terms of insurance or by neglect to make inquiries as to such facts, where they are distinctly implied in other facts of which information is communicated. En. March 21, T872. § 2568. Interest of Insured. Information of the nature or amount of the interest of one insured need not be com- municated unless in answer to an inquiry, except as pre- scribed by section 2587. En. March 21, 1872. § 2569. Fraudulent warranty. An intentional and fraudulent omission, on the part of one insured, to com- municate information of matters proving or tending to prove the falsity of a warranty, entitles the insurer to re- scind. En. March 21, 1872. § 2570. Matters of opinion. Neither party to a contract of insurance is bound to communicate, even upon inquiry, information of his own judgment upon the matters in question. En. March 21, 1872. § 2571. Representation, what. A representation may be oral or written. En. March 21, 1872. Representations in marine insurance: Sees. 2676, 2677, post. § 2572. When made. A representation may be made at the same time with issuing the policy, or before it. En. March 21, 1872. Warranties: See sees. 2603, 2604, post. § 2573. How Interpreted. The language of a represen- tation is to be interpreted by the same rules as the lan- guage of contracts in general. En: March 21, 1872. Interpretation of contracts: See ante, sec. 1635. § 2574. Representations as to future. A representation as to the future is to be deemed a promise, unless it ap- pears that it was merely a statement of belief or expecta- tion. En. March 21, 1872. § 2575. How may affect policy A representation can- not be allowed to qualify an express provision in a con- tract of insurance; but it may qualify an implied warranty. En. March 21, 1872. Civil Code— 88 §§ 2576-2683 INSURANCE IN GENERAL. 514 § 2576. When may be withdrawn. A representation may be altered or withdrawn before the insurance is ef- fected, but not afterwards. En. March 21, 1872. § 2577. Time Intended by representation. The comple- tion of the contract of insurance is the time to which a representation must be presumed to refer. En. March 21, 1872. § 2578. Representing information. When a person In- sured has no personal knowledge of a fact, he may never- theless repeat information which he has upon the subject, and which he belieyes 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. En. March 21, 1872. § 2579. Falsity. A representation is to be deemed false when the facts fail to correspond with its assertions or stipulations. En. March 21, 1872. § 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. En. March 21, 1872. Cal. Rep. Cit. 86, 251; 89, 208. § 2581. IVIateriality. The materiality of a representa- tion is determined by the same rule as the materiality of a concealment. En. March 21, 1872. Materiality of representation, how determined: See ante, sec. 2565. § 2582. Application of provisions of this article. The provisions of this article apply as well to a modification of a contract of insurance as to its original formation. En. March 21, 1872. § 2583. Right to rescind. Whenever a right to rescind a contract of insurance is given to the insurer by any pro- vision of this chapter, such right may be exercised at any time previous to the commencement of an action on the contract. En. Stats. 1873-4, 255. Cal. Rep. Git. 89, 208. See sec. 2609, post. tlS IKSURANCE in GENERAJU §$ 25S6-2689 ARTICLE VL THE POL.ICT. § 2586. Policy, what. I 2587. What must he specified tn a policy, § 25S8. "WTiose Interest Is covered. § 2589. Insurance by ag-ent or trtu^ee. § ^90. Insurance by part owner. § 2591. Genera) temns. § 2592. Successive owners. § 2593. Transfer of the thing Insured. § 2594. Open and valued policies. 5 2595. Open policy, what. § 2596. VaJued policy, what. § 2597. Running policy, what. § 2598. Effect of receipt. § 2599. Agreement aot to transfer. ' 2586. Policy, what. The written instrument, in which a contract of insurance is set forth, is called a policy of insurance. En. March 21, 1872. § 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. The 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. En. March 21, 1872. Cal. Rep. Cit. 98, 7; 107, 330; 111, 411; 111, 412; 111, 413. 5 2588. Whose interest is covered. When the name of the person intended to be insured is specified in a policy, it can be supplied only to his own proper interest. En. March 21, 1872. Stating interest of insured: See ante, sec. 2568. Insurable interest generally: See ante, sec. 2546. § 2589. Insurance by agent or trustee. When an insur- ance is made by an agent or trustee, the fact that his prin- cipal 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. En. March 21, 1872, §§ 2590-2597 INSURANCE IN GENERAL. 616 § 2590. Insurance by part owner. To render an insnr- ance, effected by one partner or part owner, applicable 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 applicable to the point or common interest. En. Marcti 21, 1872. Transfer of policy from one partner to anoUier: See ante, sec. 2557. § 2591. General terms. Wheji the description of the in- sured in a policy is so general that it may comprehend any person or any class of persons, he only can claim the benefit of the policy who can show that It was intended to include him. En. March 21, 1872. Cal. Rep. Cit. 123, 224. § 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 In- terest insured. En. March 21, 1872. § 2593. Transfer of the thing Insured. The mere trans- fer 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. En. March 21, 1872. Transfer of interest: See generally, on alienation of In- terest, sees. 2553 et seq. J 2594. Open and valued policies. A policy is either open or valued. En. 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. En. March 21. 1872. § 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. En. March 21, 1872. Cal. Rep. Cit 98, 7. Valuation in marine insurance: See post, sec. 2736. 5 2597. Running policy, what. A running policy is one wMch contemplates successive insurances and which pro- 517 INSURANCE IN GENERAL. §§ 2598-2605 vides 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. En. March 21, 1872. § 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, notwith- standing any stipulation therein that it shall not be bind- ing until the premium is actually paid. En. March 21, 1872. Cal. Rep. Cit. 83, 255; 83, 259; 132, 70; 132, 72. Premiums in general: See sees. 2616 et seq., post. § 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. En. March 21, 1872. ARTICLE VIL WARRANTLBS. § 2WZ. "Warranty, express or implied. § 2604. Form. § 2605. Express warranties to be in policy. § 2606. Past, present, and future warraatlea. I 2807. Warranty as to past or presrait. § 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. § 2603. Warranty, express or Implied. A warranty is either express or implied. En. March 21, 1872. Cal. Rep. Cit. 122, 599. See sec. 2605, infra. Implied warranties in marine insurance: See sees. 26»1 et seq., post. § 2604. Form* No particular form of words is neces- sary to create a warranty. En. March 21, 1872. § 2605. Express warranties to be In policy. Every ex- press warranty, made at or before the execution of a policy, must be contained in the policy itself, or in another instru- ment signed by the insured, and referred to in the policy, §§ 2606-2611 INSURANCE IN GENERAL.. 61S as making a part of it En. March 21, 1872. Am'd. 1873-4, 255. Cal. Rep. Cit 89, 208. Representations: See ante, sees, 2571 et seq. § 2606. Past, present and future warranties. A war- ranty may relate to the past, the present, the future, or to any or all of these. En. March 21, 1872. § 2607. Warranty as to past or present. A statement in a policy, of a matter relating to the person or thing In- sured, or to the risk, as a fact, is an express warranty thereof. En. March 21, 1872. Cal. Rep. Cit. 66, 363; 67, 440; 88, 504. § 2608. Warranty as to the future. 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. En. March 21, 1872. Cal. Rep. Cit. 137, 597, § 2609. Perfonnance excused. When before the time arrives for the performance of a warranty relating to the future, a loss insured against happens, or performance be- comes unlawful at the place of the contract, or impossible, the omission to fulfill the warranty does not avoid the poUcy. En. March 21, 1872. Am'd. 1873-4, 255. Rescinding contract of insurance: See sec. 2583, supra, as to the right when the right to rescind may be exercised. § 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. En. March 21, 1872. Cal. Rep. Cit. 86, 251. This section distinguishes between material and imma- terial warranties. Heretofore all warranties were deemed material. The insurer can, however, protect himself, un- der section 2611, infra, by declaring in the policy that vio- lation of an immaterial warranty will avoid the contract. § 2611. Policy may provide for avoidance. A policy inay declare that a violation of specified provisions thereof m tNStmANCS IN GENERAI.. §§ 2612-261S shall avoid It, otherwise the breach of an immaterial pro- vision does not avoid the policy. En. March 21, 1872, CaL Rep. Cit 66, 363; 67, 441; 112, 559; 122, 599; 143, 291. § 2612. Breach without fraud. A breach of warranty, without fraud, merely exonerates an insurer from the time that it occurs, or where it is broken in its inception prevents the policy from attaching to the risk. En. March 21, 1872. Cal, Rep. Cit. 67, 440. Breach of warranty without fraud, return of premium: See sec. 2619, post. ARTICLE VIIL PREMIUM. § 2614. When premlttm is earned. I 2617. Return of premium. § 2618. When not allowed. § 2619. Return for fraud. § 2620. Over-insurance by several lBscn*er8. § 2621. Contribution. I 2622. Proportionate oontribttti<«. § 2616. When* premium is earned. An insurer is en- titled to payment of the premium as soon as the thing insured is exposed to the peril Insured against. En. March 21, 1872. Receipt in policy, how far conclusive of payment: See sec. 2598, ante. Cal. Rep. Cit. 86, 252. § 2617. Return of premium, A person insured is en- titled 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 time, ''nd tb<=> insured surrenders his policy, to such pro-' portion 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. En. March 21, 1872. Am'd. 1873-4, 256. Cal. Rep. Cit. 86, 251; 86, 252. Return for fraud: See sec. 2619, infra. § 2618. When not allowed. If a peril insured against has existed, and the insurer has been liable for any per- §§ 2619-2622 INSURANCE IN GENERAL. sM iod, however short, the insured is not entitled to return of premiums, so far as that particular risk is concerned. En. March 21, 1872. Am'd. 1873-4, 256. § 2619. Return for fraud. A person insured is entitled to a return of the premium when the contract is voidable, on account of the fraud or misrepresentation of the in- surer, OT 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 incurred any liability under the policy. En. March 21, 1872. CXal. R^. Cit 86, 251. I 262a Over-insurance by several insurers. In case of an over-insurance by several insurers, the insured is en- titled to a ratable return of the premium, proportioned to the amount by which the aggregate sum insured in all the poliides exceeds the insurable value of tJie thing at risk. ]©a. March 21, 1872. Double insurance defined: See post, sec. 2641. § 2621. Contribution. When an over-insurance Is ef- fected by simultaneous policies, the insurers contribute to the premium to be returned in proportion to the amount insured by their respective policies. En. March 21, 1872. Contribution in cases of double insurance: See post, sec. 2642. § 2622. Proportionate contribution. When an over-in- surance is effected by successive policies, those only con- tribute 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 insur- ance, they could be made liable. En. March 21, 1872. ARTICLE IX. LOSS. 6 2626. PcHls, remot* and proximate. § 2627. Loss Incurred In rescue from perlL § 2f^2S. Excepted perils. § J6ii9. Neffligence and fraud. S2l OtetJRANCa IN GKNERAl.. §§ 2526-2623 § 2626. Perils, remote and proximate. 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. En. March 21, 1872. Negligence of insured: See sec 2629, infra. Perils of the sea, what included: See sec. 219B, ante. § 2627. Loss Incurred In 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 En. March 21, 1872. § 2628. Excepted perils. When a peril is specially ex- cepted in a contract ot insurance, a loss, which would not have occurred but for such peril, is thereby excepted; al- though the immediate cause of the loss was a peril which was not excepted. En. March 21, 1872. § 2629. Negligence and fraud. An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by the negligence of the insured, or of his agents or others. En. March 21, 1872. Am'd. 1873-4, 256. CaL Rep. Cat 67, 28; 76, 237: 112. 557; 112, 558; 112, 559. ARTICLE X. NOnCB OF LOSS. § 2633. Notice at lossB. § 2634. Preilmiaary proofs. I 2835. Waivers of defects in notice, etc § 263S. Wahrer of delay. I 2637. Certificate, wben dispensed with. § 2§33. Notice of loss. In case of loss upon an insur- ance against fire, an insurer is exonerated, if notice there- of be not given to him by some person insured, or en- titled to the benefit of the insurance without unnecessary delay. En. March 21, 1872. Am'd. 1873-4, 256. §5 2634-2644 INStJRANCfi IN GENEAaL. 522 § 2634. Preliminary 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 jus- tice; hat it is sufficient for him to give the best evidence which he has in his power at the time. Bn. March 21, 1872. § 2635. Waivers of defects in notice, etc. All defects in a notice of loss, or in preliminary proof thereof which the insured might remedy, and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived. En. March 21, 1872. Gal. Rep. Cit 98, 243. § 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. En. March 21, 1872. § 2637. Certificate, when dispensed with. If a policy requires, by way of preliminary proof of loss the certifi- cate 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 disbelief in the facts necessary to be certified. En. March 21, 1872. CaL xtep. Cit 88, 157. Presenting false proofs for policies: Pen. Coae, sec. $49. ARTICLE XL DOUBLE INSURANCBL § 2SA. Dotibte tasttrance. $ 36i2. Contribution in case of double tnsttranoe. § 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 En. March 21, 1872. § 2642. Contribution in case of double insurance. In case of double insurance, the several insurers are liable to pay losses thereon as follows: U3 ENSURANCB IN GENKEIAL,. $§ 2646-2648 1. In fire insurance, each insurer must contribute ratably towards the loss, without regard to the dates of the sev- eral policies. 2. In marine insurance, the liability ol the several in- ERirers for a total loss, whether actual or constructive, where the policies are not simultaneous, is in the order of the dates of the several policies; no liability attaching to a second or other subsequent policy except as to the ex- cess of the loss over the amount of all previous policies on the same interest. If two or more policies bear date upon the same day, 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 tc contribute ratably. En. March 21, 1872. Am'd. 1873-4, 257. Return of premium by successive insurers: See sec 1^622, ante. Insurers in separate policies may be joined: See Code Civ. Proc, sea 383. ARTTCLE Xn. REINSURANCB. § 284S. Reinsurance, what. § 2647. Disclosures required. § 2648. Reinsurance presumed to be against liability, § 2649. Qrigrinal Insurerd has no Interest. § 2646. Reinsurance, what. A contract of reinsurance is one by which an insurer procures a third person to in- sure him against loss or liability by reason of such original insurance. En. March 21, 1872. Cal. Rep. Cit. 68, 432; 107. 330; 127, 470. § 2647. Disclosures required. Where an insurer obtains reinsurance, he must communicate all the representations of the ori'ginal insured, and also all the knowled-ge and in- formation he possesses, whether previously or subsequently acquired, which are material to the risk. En. March 21, 1872. § 2648. Reinsurance presumed to be against liability. A reinsurance is presumed to be a contract of indemnity §§ 2M9-2659 14ARINB INSURANCE. S24 against liability, and not merely agpainst damage, Bn. Marcli 21, 1872. Cal. Rep. Clt. 107, 350. § 2649. Original insured has no Interest. Tlie original insured has no interest in a contract of reinsurance. En. March 21, 1872. Cal. Rep. Cit 68, 433. CHAPTEJR n. MARINE INSURANCE. Article I. Definition of Marfaie Insurance, { 286S. n. Insurable Interest, §§ 2659-2666. ni. Concealment, §§ 2669-2672. rv. Representations, §§ 2676-2677. V. Implied Warranties, §§ 2681-2688. VI. The Voyage, and Deviation, §§ 2692-2691. VII. Loss. §§ 2701-2712. Vin. Abandonment, §§ 2716-2732. IX. Measure of Indemnity. §§ 2736-2748. ARTICLE I. DEFINITION OP MARINE INSURANCm. § 2655. Marine insurance, what. § 2655. iVlarine insurance, wiiat. 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. En. March 21, 1872. Insurable interest: See ante, sees. 2546-2557. 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. I 2665. Insurable interest of charterer. § 26519. Insurable Interest In a ship. The owner of a ship h.'is 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. En. March 21, 1872. 6SB MARINE INSURANCE. 55 2660-2665 S 2660. Interest reduced by bottomry. The insurable Interest of the owner of a ship hypothecated by bottomry Is only the excess of its value over the amount secured by bottomry. En. March 21, 1872. Insurable Interest generally: See sees. 2546 et seq. Bottomry defined: Post, sec. 3017. § 2661. Freightage, what. Freightage, in the sense of a policy of marine insurance, signifies all the benefit derived by the owner either from the chartering of the ship or its employment for the carriage of his own goods or those of others. En. March 21, 1872. Marine Insurance, what: See sec. 2655, 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. En. March 21, 1872. § 2663. Interest In expected freightage, what. The in- terest 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 car- riage 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. En. 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. En. 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. En. March 21, 1872, BS 2669-2671 MARINO INSURANCE. SM ARTICLE III. CONCEALMENT. 5 2669. Information must be communlcatad. § 2670. Material information. 6 2671. Presumption of knowledge of loss. I 2672. Concealments which only affect the risk la Question. § 2669. Information must be communicated. In marine Insurance each party is bound to communicate, in addition to what is required by section 2563, all the information which he possesses, material to the risk, except such as is mentioned in section 2564, and to state the exact and whole truth in relation to all matters that he represents, or upon inquiry assumes to disclose. En. March 21, 1872. Concealment in Insurance generally: See sees. 2561 et seq,; in marine insurance, sec. 2672. § 2670. Material Information. In marine insurance, in formation of the belief or expectation of a third person. In reference to a material fact, is material. Bn. March 21, X872. Representation of expectation avoids contract, when: Post, sec. 2677. § 2671. Presumption of knowledge of loss. A person in- sured by a contract of marine Insurance is presumed to have had knowledge, at the time of insuring, of a prior loss, if the information might possibly have reached him in the usual mode of transmission, and at the usual rate of communication. En. March 21, 1872. § 2672. Concealments which only affect the risk In ques- tion, A concealment in a marine insurance, in respect to any of the following matters, does not vitiate the entire contract, but 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 de- tention; 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. Bn. March 21. 1872. S2t Marine iNstjRANOa. ii 2ti76-2^2 ARTICLE IV. REPRESENTATIONS. § 2676. Effect of Intentional falsity. § 2677. Representation of expectation. § 2676. Effect of Intentional falsity. If a representa- tion, by a person insured by a contract of marine insur- ance, is intentionally false in any respect, whether ma- terial or Immaterial, the insurer may rescind the entire contract. En. March 21, 1872. Representations generally: See ante, sees. 2571 et seq. § 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. En. March 21, 1872. Expectation of a third person, material; Sec. 2670. ARTICLE V. IMPLIED WARRANTIES. § 2681. Warranty of seaworthiness. § 2682. Seaworthiness, what. § 2683. At what time seaworthiness must exist. § 2684. What things are required to constitute seaworthiness. § 2685. Different degrees of seaworthiness at different stages of the voy- age. 5 2686. Unseaworthiness during the voyage. I 2687. Seaworthiness for purposes of insurance on cargo. § 2688. Neutral papers. § 2681. Warranty of seaworthiness. In every marine 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. En. March 21, 1872. Am'd. 1873-4, 257. Seaworthiness defined: See next section. § 2682. Seaworthiness, what. A ship is seaworthy, when reasonablly fit to perform the services, and to en- counter the ordinary perils of the voyage, contemplated by the parties to the policy. En. March 21, 1872. Seaworthiness, warranty of: Sees. 2683-2685, post. §§ 2683-26S7 MARINE INSURANCE. b2& § 2683. At what time seaworthiness must exist. An implied warranty of seaworthiness is complied with if the ship he 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 transshipped at an intermediate port, the implied warranty is not complied with, unless each vessel upon which the cargo is shipped or transshipped be seaworthy at the commencement of its particular voyage. En. March 21, 1872. Am'd. 1873-4, 257. § 2684. What things are required to constrtute sea- worthiness. A warranty of seaworthiness extends not only to the condition of the structure of the ship itself, but re- quires that it be properly laden, and provided with a com- petent 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. En. March 21, 1872. § 2685. Different degrees of seaworthiness at different stages of the voyage. Where different portions of the voy- age 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 the commencement of each portion, the ship is seaworthy with reference to that portion. En. March 21, 1872. § 2686. Unseaworthiness during the voyage. When a ship becomes unseaworthy during the voyage to which an insurance relates, an unreasonable delay in repairing the defect exonerates the insurer from liability from any loss arising therefrom. En. March 21, 1872. § 2687. Seaworthiness for purposes of insurance on cargo. A ship which is seaworthy for the purpose of an insurance upon the ship may nevertheless, by reason of being unfitted to receive the cargo, be unseaworthy for the purpose of insurance upon the cargo. En. March 21, 1872, m MARIN^B INSURANCS. SS § 2688. Neutral papers. Where the nationality or nen- trality of a ship or cargo is expressly warranted, it is im- plied that the ship will carry the requisite documents to show such nationality or neutrality, and that it will not carry any documents which cast reasonable sospieion ti^ereozu En. March 21, 1872. AETICLE YI. THE VOYAQB AND DEVIATION. S 2692. Voyage insajred, how determlnesi. § 2693. Course of sailing, how determined. § 2694. Deviation, what. § 2695. When proper. § 2696. When improper. § 2697. Deviation exonerates the insurer. § 2692. Voyage insured, how determlrted. When the voyage contemplated by a policy is described by the places of beginning and ending, the voyage insured is one which conforms to the course of sailing fixed by mercantile usage between those places. En. March 21, 1872. § 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- Led which, to a master of ordinary skill and discretion, would seem the most natural, direct, and advantageous. En. 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 voy- age. En. March 21, 1872. § 2695. When proper. A deviation is proper: 1. When caused by circumstances over which neither the master nor the owner of the ship has any control; 2. When necessary to comply with a warranty, or to avoid a i)eril, whetier insured against or not; 3. When made in good faith, and upon reasonable grounds of belief in its necessity to avoid a j^eril; or, Cahrll Cod&-31 §§ 2696-2704 MARINE INSURANCE. S30 4. When made in good faith for the purpose of saving human life, or relieving another vessel in distress. h}n. March 21, 1872. § 2696. When im pro per. Erery deviation not specified in the last section is improper. Em. March 21, 1872. § 2697. Deviation exonerates the insurer. An insurer is not liable for any loss happening to a thing insured sub- sequently to an improper deviation. En. March 21, 1872. CaL Bep. Cit. 66, 297. ARTICLE VIL 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 voya^ Is broken up, § 2708. Cost of reshipment, etc. § 2709. When insured is entitled to payment. § 2710. Abandonment of goods on insurance of profits. (Repealed.) § 2711. Average loss. § 2712. Insurance against total loss. § 2701. Total and partial loss. A loss may be either total or partial. En. March 21, 1872. Total loss either actual or constructive: See post, sec. 2703. Actual total loss defined: See post, sec. 2704. Constructive total loss defined: See post, sec. 2705. § 2702. Partial loss. EJvery loss whicdi is not total is partial. En. March 21, 1872. Liability on partial loss: Sec. 2737. One-third new for old: Sec. 2746. § 2703. Actual and constructive total loss. A total loss may be either actual or constructive. En. March 21, 1872. Actual total loss defined: Sec. 2704. Actual loss, when presumed: Sec. 2706. Constructive loss defined: Sec. 2705. § 2704. Actual total loss, what. An actual total loss is caused by: 5$1 MARINE INSURANCE. S§ 2705-2710 L A total destruction of the thing insured; 2. The loss of the thing by sinking, or by being broken np; 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. En. March 21, 1872. Cal. Rep. Cit 146, 280. { 2705. Constructive total loss. A constructiye total loss is one which gives to a person insured a right to abandon, under section 2717. En. March 21, 1872. Abandonment for constructive total loss: Sees. 2716 et seq. § 2706. Presumed actual loss. An actual loss may be presumed from the ccmtinued absence of a ship without being heaxd of; and the length of time which is sufllcient to raise this presumption depends on the circumstances of the case. En. March 21, 1872. § 2707. Insurance on cargo, etc., when voyage Is broken up. When a ship is prevented, at an intermediate port, from completing the voyage, by the perils insured against, the master 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. En. March 21, 1872. Am'd. 1873-4, 258. Constructive total loss of cargo: See sees. 2716 et seq. § 2708. Cost of reshipment, etc. In addition to the lia- bility mentioned in the last section, a marine insurer is bound for damages, expenses of discharging, storage, re- shipment, extra freightage, and all other expenses incurred in saving cargo reshipped pursuant to the last section, up to the amount insured. En. March 21, 1872. § 2709. When Insured Is entitled to payment. Upon an actual total loss, a person insured is entitled to payment without notice of abandonment. En March 21, 1872. § 2710. Abandonment of goods on insurance of profits, (Repealed.) En. March 21, 1872. R^. 1873-4, 258. §§ 2711-2717 MARINE INSURANCE. 532 § 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 liable for any particular average loss not -depriving the insured of the possession, at the port of destination, of the whole of such thing, or class of things, even though it become entirely worthless; but he is liable for his propor- tion of all general average loss assessed upon the thing insured. En. March 21, 1872. AmU 1873-4, 258. Cal. Rep. Cit 92, ZS7. § 2712. Insurance ag'&lnst total loss. An insurance con- fined 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. En. March 21, 1872. Am'd. 1873-4, 259. ARTICLE VHL ABANDONMENT. § 27M. Abandonment, what. § 2717. When Insured may abandon. § 2-71S. Must be unqualilled. § 2719. When may be made. § 2726. Abandonment nxay be defeated. § 2721. How made. § 2722. Requisites of notice. § 2723. No other cause can be relied on. § 2724. Effect. § 2725. Waiver of formal abandonment. § 2726. Agents of the insured become agents of tbe insurer. § 2727. Acceptance not necessary. § 2728. Acceptance conclusive. § 2729. Accepted abandonment, irrevocable, § 2730. Freightage, how affected by abanrdonm^it of sfa^. § 2731. Refusal to accept § 2752. Omission to abandon. § 2716. Abandonment, what. Abandonment is the act by which, after a constructiYe total loss, a person insured by contract of marine insurance declares to the insurer that he relinquishes to him his interest in the thing in- sured. En. March 21, 1872. Abandonment, requisites of: Post, sees. 2718-2723. CJonstructive total loss defined: Ante, sec. 2705. § 2717. When Insured nciay abandon. A person insured by a contract of marine insarance may abandcm the thing B33 MARINB INSURANCE. rrVt-Zm 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 the peril; 2. If it is injured to such an extent as to reduce its value more than one-half; 3. If the thing insured, beins a ship, the contemplated voyage cannot be lawfully performed without incurring an expense to the insured of more than half the value of the thing abandoned, or without incurring a risk which a prudent man would not take under the circumstances; or, 4. If the thing insured, being cargo or freightage, the voyage cannot be performed nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cai^o, without incurring the like expense or risk. But freightage cannot in any case be abandoned, unless the ship Is also abandoned. En. March 21, 1872. Cal. Rep. dt 146, 280, Freightage, how affected by atbandooment: Post, see. 2730. § 2718. Must be unqualified. An abandonment must be neither partial nor conditional. En. March 21, 1872. § 2719. When may be made. An abandonment must be made within a reasonable time after the information of the loss, and after the commencement of the voyage, and be- fore the party abandoning has information of its comple- tion. En. March 21, 1872. Omitting to abandon, insured may still recover for hi,? actual loss: Post, sec. 2732. § 2720. Abandonment may be defeated. Where the in- formation 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. En. March 21, 1872. § 2721. How ntade. Abandonment is made by giving notice thereof to the insurer, which may be done orally, or in writing. En. March 21, 1872, §§ 2722-2729 MARINE INSURANCE. SS4 § 2722. Requisites of notice. A notice of abandonment 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 accom- panied with proof of interest or of loss. En. Majch 21, 1872, See post, sec. 2723. § 2723. No other cause can be relied on. An abandon- ment can be sustained only upon the cause specified in the notice thereof. En. March 21, 1872. § 2724. Effect. An abandonment is equivalent to a transfer, by the insured, of his interest, to the insurer, with all the chances of recovery and indemnity. En. March 21, 1872. Subrogation of insurer: See sec. 2745. § 2725. Warver of formal abandonment. If a marine insurer pays for a loss as if it were an actual total loss, he is entitled to whatever may remain of the thin:g insured, or its proceeds or salvage, as if there had been a formal abandonment. En. March 21, 1872. § 2726. Agents of the Insured become agents of the In- surer. Upon an abandonment, acts done in good faith by those who were agents ot the insured in respect to the thing insured, subsequent to the loss, are at the risk of the insurer, and for his benefit. En. March 21, 1872. § 2727. Acceptance not necessary. An acceptance of an abandonment is not necessary to the rights of the in- sured, and is not to be presumed from the mere silence of the insurer upon his receiving notice of abandonment En. March 21, 1872. Compare with sec. 2731, infra. § 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 En. March 21, 1872. § 2729. Accepted abandonment, irrevocable. An aban- donment once made and accepted is irrevocable, unless the ground upon which it was made proves to be un- founded. En. March 21, 1872. 535 MARINE INSURANCE. §§ 2730-2736 § 2730. Freightage, how affected by abandonment 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. En. March 21, 1872. Abandonment of freightage: Ante, sec. 2717, eubd. 4. § 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 my have come to the hands of the insured. En. March 21, 1872. Acceptance not presumed from silence: Ante, sec. 2727. § 2732. Omission to abandon. If a person insured omits to abandon, he may nevertheless recover his actual loss. En. March 21, 1872. ARTICLE IX MBASURB OF INDBMNITT. § 27^. Yalttatior^ when eoaclusive. § 2737. Partial loss. § 2738. Profits. § 2739. Valuation apportlonesl. § 2740. Valuation applied to profits. 5 2741. Estimating loss under an open pctftej. § 2742, Arrival of thing damaged § 2743. Labor and expenses. § 2744. General average. I 2745. Contribution. S 2746. One third new for old, § 2736, Valuation, when conclusive. A valuation in a policy of the marine insurance is conclusive between the parties 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 without the knowledge of the person actu- ally procuring the insurance, he may show the real value. But a valuation fraudulent in fact entitles the insurer to rescind the contract. En. March 21, lSi2. Valued policies: See ante, sec. 2596. Valued policy on freightage or cargo: See sec. 2739, infra. Valuation of profits: See sec. 2740. Vali^d policy of fire insurance: See post, see. 275$, S§ 2337-2741 MARINE INSURANCE. 63B § 2737. Partial loss. A marine insurer is liable upon a partial loss, only for such proportion of the amount in- jured by him as the loss bears to the value of the whole Interest of the insured in the property insured. En. March 21, 1872. Compare with section 2756, stating the measure of in- demnity in case of fire insurance. § 2738. Profits. Where profits are separately insured in a contract of marine insurance, the insured is entitled to recover in case of loss, a proportion of such profits equiv- alent to the proportion which the value of the property lost bears to the value of the whole. En. March 21, 1872. See infra, sec. 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 prc^^ortion to such part. EJn. March 21, 1872. § 2740. Valuation applied to profits. When profits are valued and insured by a contract of marine insurance, a loss of them is conclusively presumed from a loss of the property out of which they were expected to arise, and the valuation fixes their amount. En. March 21, 1872. Harmonizes with sec. 2738, ante. § 2741. Estimating loss under an open policy. In esti- mating a loss under an open policy of marine insurance, the following rules are to be observed: 1. The value of a ship is its value at the beginning of the risk, including all articles or charges which add to its permanent value, or which are necessary to prepare it for the voyage insured; 2. The value of cargo is its actual cost to the insured, when laden on board, or where that cost cannot be ascer- tained, 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 destinatton, or to expenses ineorred on the way or 031 arrival; B37 MARINE INSURANCE. §§ 2742-2744 3. The value of freightage is the gross freightage, ex- clusive of primage, without reference to the cost of earn- ing it; and, 4. The cost of insurance is in each case to be added to the value thus estimated: En. March 21, 1872. Partial loss of ship: Post, sec. 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. En. March 21, 1872. § 2743, Labor and expenses. A marine insurer is liable few all the expense 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 afterwards occurs. En. 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 towards a general average loss called for by a peril in- sured against. En. March 21, 1872. G^ieral average generally: Ante, sees. 2152 et seq. § 2745. Contribution. Where a person insured by a contract of marine insurance has a demand against others for contribution, he may claim the whole loss from the insurer, subrogating him to his own right to contribution. But no such claim can be made upon the insurer after the separation of the interests liable to contribution, nor when the insured, having the right and opportunity to enforce contribution from others, has neglected or waived the exercise of that right. En. March 21, 1872. Am'd. 187^4, 259. Subrogation of insurer: Ante, sec. 2724. § 2746. One-third new for old. In the case of a partial loss of a ship or its equipments, the (Ad materials are tq 8§ 2752-2756 FIRE INSURANCE. 638 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 sheath- ing metal at a depreciation of only two and one halt per cent for each month that it has been fastened to the ship. En. March 21, 1872. Sale of wrecked or damaged vessels: See Pol. Code, seo. 2607. CHAPTER III. FIRE INSURANCH. fl 2752. False representations. (Repealed.) I 2753. Alteration increasing risk. I 2754. Alteration not increasing risk. I 2755. Acts of the insured. § 2756. Measure of indemnity. § 2757. Value of interest, how may be fixed. Total or partial loss. § 2752. False representations. (Repealed.) En. March 21, 1872. Rep. 1873-4, 259. § 2753. Alteration increasing 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 con- tract of fire insurance. En. March 21, 1872. Cal. Rep. Cit. 122, 599. § 2754. Alteration not Increasing risk. An alteration in the use or condition of a thing insured from that to which It is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance. En. March 21, 1872. Cal. Rep. Cit. 122, 597; 122, 599; 122, 600. § 2755. Acts of the Insured. A contract of fire insur- ance is not afCected by any act of the insured subsequent to the execution of the policy, which does not violate its provisions, even though it increases the risk and is the cause of a loss. En. March 21, 1872. § 2756. Measure of Indemnity. If there is no valuation in the policy, the measure of Indemnity in an insurance m FIRE INSURANCE. S 2751 against fire is the expense, at the time that the loss is payable, of replacing the thing lost or injured in the con- dition 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. En. March 21, 1872. Valued policy in marine insurance: See ante, sec. 2736. § 2757. Value of Interest, 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 such 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 interest 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 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 stipulat- ing in such policies concerning the repairing, rebuilding or replacing buildings or structures wholly or partially dam- aged or destroyed. En. Stats. 1900-01, 572, §§ 2762-2765 LIFE JLND HEALTH INSURANCE. 540 CHAPTER IV. LIFE AND HEALTH INSURANCB. § 2762. Insurance upon life, when parable. § 2763. Insurable Interest. § 2764. Assignee, etc., of life policy need have no Imterest. § 2765. Notice of transfer. § 2766. Measure of Indemnity. § 2762. Insurance upon life, when payable. An insur- ance upon life may be made payable on the death of the person, or on his surviving a specified period, or periodical- ly so long as he shall live, or otherwise contingently on the continuance or determination of life. En. March 21, 1872. Mutual life, health, and accident insurance corporations: See ante, sees. 437 et seq.; post, Appendix, title Insurance. Fraternal societies not insurance companies: See ante, sec. 451. § 2763. Insurable Interest. Every person has an insur- able interest in the life and health: 1. Of himself; 2. Of any person on whom he depends wholly or In part for education or support; 8. 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. En. March 21, 1872. Gal. Rep. Cit. 90, 248. Insurable interest generally: Ante, sees. 2546 et seq. § 2764. Assignee, etc., of life policy need have no In- terest. 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 recovered En. March 21, 1872. Cal. Rep. Cit. 90, 251. Compare with section 2553, ante. 5 2765. Notice of transfer. Notice to an Insurer of a transfer or bequest thereof is not necessary to preserve Sil INDEMNITY. §§ tJ6&-'^m the validity of a policy of insurance upon life or health, unless thereby expressly required. En. 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 insorance upon life or health is the sum fixed in the policy. Ehi, March 21, 1872. Act relating to life, health, accident and annuity or en- dowment insurance: See post, Appendix, title Insnnuica TITLE XIL INDEMNITT. § 2772. Indemalty, what. § 2773. Indemnity for a future wrongful act void. § 2774. Indemnity for a past wrongful act valid. § 2775. Indemnity exten-ds to acts of agents. § 2776. Indemnity to several, § 2777. Person indemnifying liable jointly or sevw^Hy with person In- demnified. § 2778. Rules for interpreting agreement of Indemnity § 2779. When person indemnifying is a surety. § 2780. Bail, what § 2781. How regulated. § 2772. Indemnity, what. Indemnity is a contract by which one engages to save another from a legal conse- quence of the conduct of one of the parties, or of some other person. En. March 21, 1872. Cal. Rep. Cit. 58, 439; 70, 557. § 2773. Indemnity for a future 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. En. March 21, 1872. Am'd. 1873-4, 259. § 2774. Indemnity for a past wrongful act valid. An agreement to indemnify a person against an act already done is valid, even though the act was known to be wrong- ful, unless it was a felony. En. March 21, 1872. § 2775. Indemnity extends to acts of agents. An agree- ment to indemnify against the acts of a certain person applies not only to his acts and their consequences, but also to those of his agents. En. March 21, 1872. Cal. Rep. Cit. 5S, 439. §§ 277«-2778 INDEMNITT. 642 § 2776. Indemnity to several. An agreement to in- demnify several persons applies to each, unless a contrary intention appears. En. March 21, 1872. § 2777. Person indemnifying liable jointly or severally with person Indemnified. One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately to every per- son injured by such act. Ehi. March 21, 1872. § 2778. Rules for interpreting agreement of indemnity. In the interpretation of a contract of indemnity, the follow- ing 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 besoming liable; 2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof; 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 in- curred in good faith, and in the exercise of a reasonable discretion; 4. The person indemnifying is bound, on request of the X)erson indemnified, to defend actions or proceedings brought against the latter in respect to the matters em- braced 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 lat- t^-, suffered by him in good faith, is conclusive in his fa- vor 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 in- demnified shall be conclusive upon the person indemnifying, is inapplicable if he had a good defense upon the merits, f54S GUARANTY IN GENERAL. §§ 2779-2781 which by want of ordinary oare he failed to establish in the action. En. March 21, 1872. Cal. Rep. Cit. 57, 50; 121, 519. Sabd. 1—81, 273. S\ibd. 3—81, 274. Subd. 4—^, 432. Subd. 5—81, 273. § 2779. When person Indemnifying Is a surety. Where one, at the request of another, engages to answer in dam- ages, whether liquidated or unliquidated, for any violation of duty on the part of the latter, he is entitled to be re- imbursed in the same manner as a surety, for whatever he may pay. En. March 21, 1872. § 2780. Ball, what. Upon those contracts of indemnity which are taken in legal proceedings as security for the performance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances, the sureties are called bail. En. March 21, 1872. § 2781. How regulated. The obligations of bail are governed by the statutes specially applicable thereto. En. March 21, 1872. TITLE XIIL GUARANTY. Chapter I. Guaranty in General, §§ 2787-2825. II. Suretyship, §§ 2831-2866. CHAPTER I. GUARANTY IN GENBRAU Article I. Definition of Guaranty, §§ 2787-2788. II. Creation of Guaranty, §§ 2792-2795. III. Interpretation of Guaranty, §§ 2799-ii802. 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. Knowledgre of principal aot necessary to creation of gnaranty. §§ 2787-2794 GUARANTY IK GENERAL.. 54^1 § 2787. Guaranty, what, A guaranty is a promise to answer for the debt, default, or miscarriage of another person. En. March 21, 1872. CaL Rep. Cit. 62, 487; 77, 477; K 103; 113, 434; 119, 70. § 278a Knowledge of principal not necessary to crea- tion of guaranty. A person may become guarantor even without the knowledge or consent of the principal. En. March 21, 1872. AETTCLE n. CREATION OF GUARANTY. § 2792. Necessity of a consideration. § 2793. Guaranty to be in writing, etc § 2794. Engagement to answer for obligation of another, when deemed original. § 2795. Acceptance of guaranty. § 2792. Necessity of a consideration. Where a guar- anty is entered into at the same time with the original ob- ligation, or with the acceptance of the latter by the guaran- tee, 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. En. March 21, 1872. Cal. Rep. Cit. 109, 221; 146, 547. § 2793. Guaranty to be in writing, etc. Except as pre- scribed by the next section, a guaranty must be in writing, and signed by the guarantor; but the writing need not express a consideration. En. March 21, 1872. Cal. Rep. Cit. Ill, 284; 113, 434. § 2794. Engagement to answer for obligation of another, when deemed original. A promise to answer for the obli- gation of another, 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 pur- suant to such promise; or by one who has received a dis- charge from an obligation in whole or in part, in con- sideration of such promise; 2. Where the creditor parts with value, or enters into an obligation, in consideration of the obligation, in respect S46 GUARANTY IN GENERAL. §§ 2795, 275J3 to which the promise is made, in terms or under circum- stances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his surety; 3. Where the promise, being for an antecedent obliga- tion of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, ac- cepting 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 im- prisonment under an execution 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 per- son; 4. Whether a factor undertakes, for a commission, to sell merchandise 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 transfer enters into a promise respecting such instrument. En. March 21, 1872. Cal. Rep. Cit. 59, 444; 67, 294; 67, 598; 77, 8; 77, 81; 81, 288; 113, 434; 117, 591. Subd. 1—130, 415. Subd. 2—128, 253; 70, 557. Suhd. 3—117, 593; 123, 383. § 2795. Acceptance of guaranty. A mere offer to guar- anty is not binding, until notice of its acceptance is com- municated by the guarantee to the guarantor; but an ab- solute guaranty is binding upon the guarantor without notice of acceptance. En. March 21, 1872. Cal. Rep. Cit ^125, 481; 128, 253. Absolute guaranty: See post, sec 2806. ARTICLE III. INTERPRETATION OF GUARANTY. § 2799. GhiaraBty of incomplete contract. § 2800. Guaranty that an obligation is good or collectiW«, § 2801. Recovery upon such guaranty. § 2802. Guarantor's liability upon such guaranty. § 2799. Guaranty pf incomplete contract. In a guaranty of a contract, the terms of which are not then settled, it §§ 2800-2807 GUARANTY IN GENERAL. 546 is implied that its terms shall be such as will not expose the guarantor to greater risks than he would incur under those terms which are most common in similar contracts at the place where the principal contract is to be performed. En. March 21, 1872. Gal. Rep. Git. 80, 341. § 2800. Guaranty that an obligation is good or collect- ible. A guaranty to the effect that an obligation is good, or is collectible, imports that the debtor is solvent, and that the demand is collectible by the usual legal proceedings, if taken with reasonable diligence. En. March 21, 1872. § 2801. Recovery upon such guaranty. A guaranty, such as is mentioned in the last section, is not discharged by an omission to take proceedings upon the principal debt, or upon any collateral security for its payment, if no part of the debt could have been collected thereby. En. March 21, 1872. § 2802. Guarantor's liability upon such guaranty. In the cases mentioned in section 2800, the removal of the principal from the state, leaving no property therein from which the obligation might be satisfied, is equivalent to the insolvency of the principal in its effect upon the rights and aWi^Eitions of the guarantor. En, March 21, 1872. ARTICLtE IV. LIAJBILITY OF GUARANTORS. } 2801 Guaranty, how conartrued. { 2807. Ltebtilty upon gTiaranty of payment or {>erformance. § 2808. Liability upon guaranty of a conditional obligation. § 2809. Obligation of guarantor cannot exceed that of the principal. § 2810. Guarantor not liable on an illegal contract. § 2806. Guaranty, how construed. A guaranty is to be deemed unconditional unless its terms import some con- dition precedent to the liability of the guarantor. En. March 21, 1872. Cal. Rep. Cit 78, 448; 128, 470. § 2807. Liability upon guaranty of payment or perform- ance. A guarantor of payment or performance is liable S47 GUARANTY IN GENERAL. §§ 2808-281S to the guarantee immediately upon tlie default of the prin- cipal, and without demand or notice. En. March 21, 1872. Cal. Rep. Cit. 62, 487; 77, 477; 77, 478; 78, 448; 86, 373; 94, 103; 105, 441; 128, 470; 128, 668. § 2808. Liability upon guaranty of a conditional obliga- tion. Where one guarantees a conditional obligation, his liability is commensurate with that of the principal, and he is not entitled to notice of the default of the principal, unless he is unable, by the exercise of reasonable diligence, to acquire information of such default, and the creditor has actual notice thereof. En. March 21, 1872. Cal. Rep. Cit. 121, 606. § 2809. Obligation of guarantor cannot exceed that of the principal. The obligation of a guarantor must be neither larger in amount nor in other respects more bur- densome than that of the principal; and if in its terms it exceeds it, it is reducible in proportion to the principal obligation. En. March 21, 1872. Cal. Rep. Cit. 61, 399. § 2810. Guarantor not liable on an illegal contract. A guarantor is not liable if the contract of the principal is unlawful; but he is liable notwithstanding any mere per- sonal disability of the principal, though the disability be such as to make the contract void against the principaL En. March 21, 1872. ARTICLE V. CX)NTINUING GUARANTY. § 2814. Continuing guaranty, what. i 2815. Revocation. § 2814. Continuing guaranty, what. A guaranty relat- ing 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 continuing guaranty. En. March 21, 1872. Cal. Rep. Cit. 138, 729; 141, 677. § 2815. Revocation. A continuing guaranty may be re- voked at any time by the guarantor, in respect to future transactions, unless there is a continuing consideration as to such transactions which he does not renounce. En. March 21, 1872. Cal. Rep. Cit. 141, 676. §§ 2819-2822 GUARANTY IN GENERAL. 648 ARTICLE VI. EXONERATION OF GUARANTORS. § 2819. What dealings with debtor exonerate guarantor. § 2820. Void promises. § 2821. Rescission of alteration. § 2822. Part performance. § 2823. Delay of creditor does not discharge guarantor. § 2824. Guarantor indemnified by the debtor, not exonerated. § 2825. Discharge of principal by act of law does not discharge gruar- antor. § 2819. What dealings with debtor exonerate guar- antor. A guarantor is exonerated, except so far as he may- be indemnified by the principal, if by any act of the cred- itor, without the consent of the guarantor, the original ob- ligation 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. EJn. March 21, 1872. Cal. Rep. Cit. 70, 84; 77, 477; 91, 210; 110, 665; 117, 497; 120, 501; 122, 66; 122, 67; 122, 668; 130, 254; 139, 418; 145, 244; 146, 521. Liability of guarantor: See ante, sees. 2806 et seq. Rights of creditor where security given: See post, sec. 2854. Forbearance will not discharge: Post, sec. 2823. Neglect or refusal to sue after request will discharge: Post, sec. 2845. Discharge of surety by alteration of principal's contract: Post, sec. 2821. § 2820. Void promises. A promise by a creditor, which for any cause is void, or voidable by him at his option, does not alter the obligation or suspend or impair the rem- edy, within the meaning of the last section. E5n. 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 liability of a guarantor who has been exonerated by such agreement. En. March 21, 1872. § 2822. Part performance. The acceptance, by a cred- itor, of anything in partial satisfaction of an obligation, reduces the obligation of a guarantor thereof, in the same 549 SURETYSHIP. §§ 2823-2831 measure as that of the principal, but does not otherwise affect it. En. March 21, 1872. Cal. Rep. Cit. 145, 199. Part performance of the obligation, expressly accepted by the creditor in writing, would extinguish the obligation of the debtor, and therefore that of the surety: Ante, sees. 1523, 1524. § 2823. Delay of creditor does not discharge guarantor. Mere delay on the part of a creditor to proceed against the principal, or to enforce any other remedy, does not ex- onerate a guarantor. En. March 21, 1872. Cal. Rep. Cit. 77, 60; 77, 478; 94, 103; 130, 254. Notice to creditor to sue: See post, sec. 2845. § 2824. Guarantor indemnified by the debtor, not ex- onerated. A guarantor, who has been indemnified by the principal, is liable to the creditor to the extent of the indemnity, notwithstanding that the creditor, without the assent of the guarantor, may have modified the contract or released the principal. En. March 21, 1872. Cal. Rep. Cit. 117, 297; 117, 497. See ante, sec. 2819, and sec. 2794, subd. 1. § 2825. Discharge of principal by act of law does not discharge guarantor. A guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor. En, March 21, 1872. CHAPTER H. SURETYSHIP. Article I. Who are Snretles, §§ 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. ARTICLE I. WHO ARE SURETIES. § 2831. Surety, what. § 2832. Apparent principal may show that he is sorety. § 2831. Surety, what. A surety is one who at the re- quest of another and for the purpose of securing to him §§ 2832-2838 SURETYSHIP. 609 a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothe- cates property as security therefor. En. March 21, 1872. Cal. Rep. Cit. 78, 448; 101, 420; 105, 441; 109, 221; 112, 34; 119, 70; 120, 501; 127, 526; 139, 253; 139, 254; 139, 255; 145, 499. Distinction between sureties and guarantors: Ante, sees. 2807, 2808. § 2832. Apparent principal may show that he is surety. One who appears to be a principal, whether by the terms of a written instrument or otherwise, may show that he is in fact a surety, except as against persons who have acted on the faith of his apparent character of principal. En. March 21, 1872. Cal. Rep. Cit. 55, 342; 60, 392; 62, 503; 76, 130; 77, 477; 109, 409; 114, 625; 114, 626; 114, 627; 136, 371; 137, 6^2; 139, 418; 145, 498. ARTICLE II. LIABILJTT or SURBTIBS. § 2836. Ldmit of surety's obligation § 2837. Rules of interpretation. § 2838. Judgment against surety does not alter the relatioe. § 2839. Surety exonerated by performance or offer of performance. § 28^. Surety discharged by certain acts of the creditor. § 2836. Limit of surety's obligation. A surety cannot be held beyond the express terms of his contract, and if such contract prescribes a penalty for its breach, he cannot in any case be liable for more than the penalty. En. March 21, 1872. Cal. Rep. Cit. 71, 300; 81, 532; 81, 537; 108, 565; 116, 36; 119, 257. § 2837. Rules of Interpretation. In interpreting the terms of a contract of suretyship, the same rules are to be observed as In the case of other contracts. Eki. March 21, 1872. Cal. Rep. Cit. 77, 448; 78, 448; 80, 618; 81, 532; 100, 104; 119, 257; 138, 730. § 2838. Judgment against surety does not alter the re- lation. Notwithstanding the recovery of judgment by a creditor against a surety, the latter still occupies the rela- tion of surety. En. March 21, 1872. m StTRETYSHlP. §§ 2839-2845 § 2839. Surety exonerated by performance or offer of performance. Performance of the principal obligation, or an offer of such performance, duly made as provided in this code, exonerates a surety. En. March 21, 1872. Am'd. 1873-4, 260. Cal. Rep. Clt. 98, 399; 139, 418. Offer of performance: Ante, sees. 1485-1505. § 2840. Surety discharged by certain acts of the cred- itor. A surety is exonerated — 1. In like manner with a guarantor; 2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or inconsistent with his rights, or which lessens his security; or, 3. To the extent to which he is prejudiced by an omis- sion of the creditor to do anything, when required by the surety which it is his duty to do. En. March 21, 1872. Cal. Rep. Cit. 77, 448; 77, 477; 78, 448; 96, 641; 112, 35; 114, 627; 120, 501; 130, 254; 139, 418; 145, 244; 146, 520. Subd. 1—91, 210. Subd. 2—144, 96. Subd. 1: Ante, sec. 2819. Subd. 3: Ante, sec. 2845. ARTICLE III. RIGHTS OF SURETIES. § 2844. Surety has rights of guarantor. § 2845. Surety may require the creditor to proceed against the prlm- clpal. § 2846. Surety may compel principal to perform obligations, when du*. § 2847. A principal bound to reimburse his surety. § 2848. The surety acquires the right of the creditor. § 2849. Surety entitled to benefit of securities held by creditor. § 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 become person- ally responsible or not. En. March 21, 1872. Cal. Rep. Cit. 77, 477; 78, 448; 105, 441; 109, 221; 110, 665; 120, 501; 141, 677; 145, 244. See ante, sees. 2808-2810. § 2845. Surety may require the creditor to proceed against the principal. A surety may require his creditor to proceed against the principal, or to pursue any other remedy in his power which the surety cannot himseU §§ 2^46-2^& gtJRETfSHtP. 652 pursue, and which would lighten his burden; and if in such case the creditor neglects to do so, the surety is ex- onerated to the extent to which he is thereby prejudiced. En. March 21, 1872. Cal. Rep. Cit. 53, 689. Mere delay by the creditor to pursue the principal does not discharge the surety: Ante, sec. 2828; see, also, ante, sec. 2840, subd. 1. § 2846. Surety may compel principal to perform obliga- tions, when due. A surety may compel his principal to perform the obligation when due. En. March 21, 1872. Cal. Rep. Cit. 53, 689. The action under this section is provided for In sec. 1050r Code Civ. Proc. Section 2845, ante, may be considered as containing an* other substitute for the equitable action. § 2847. A principal bound to reimburse ills surety. If a surety satisfies the principal obligation or any part there- of, whether with or without legal proceedings, the prin- cipal is bound to reimburse what he has disbursed, includ- ing 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 pre- scribed by the n^xt section. En. March 21, 1872. Cal. Rep. Cit. 58, 689; 67, 243; 117, 202; 121, 423; 122, 673; 127, 527; 133, 578. § 2848. The surety acquires the right of the creditor. A surety, upon satisfying the obligation of the principal, is entitled to enforce every remedy which the creditor then has against the principal to the extent of reimbursing what he has expended, and also to require all his cosureties to contribute thereto, without regard to the order of time in which they became such. En. March 21, 1872. Cal. Rep. Cit. 53, 689; 67, 243; 122, 673; 130, 254; 133, 578; 139, 49; 139, 50; 139, 52. § 2849. Surety entitled to benefit of securities held by creditor. A surety is entitled to the benefit of every security for the performance of the principal obligation held by the creditor, or by a cosurety at the time of enter- ing into the contract of suretyship, or acquired by hJm 658 SURE2TYSH1P. §§ 2850-2859 afterwards, whether the surety was aware of the security or not. En. March 21, 1872. Cal. Rep. Cit. 96, 641; 114, 626; 114, 627; 119, 70; 127, 371; 133, 578. § 2850. The property of principal to be taken first. Whenever property of a surety is hypothecated with prop- erty of the principal, the surety is entitled to have the property of the principal first applied to the discharge of the obligation. En. March 21, 1872. Cal. Rep. Clt. 119, 70; 120, 501. ARTICLE IV. RIGHTS OF CREDITORS. f 2854. Creditor entitled to beaeflt of securities held by surety. § 2854. Creditor entitled to benefit of securities held by surety. A creditor is entitled to the benefit of every- thing which a surety has received from the debtor by way of security for the performance of the obligation, and may, upon the maturity of the obligation, compel the applica- tion of such security, to its satisfaction. En. March 21, 1872. Cal. Rep. Cit. 109, 136. ARTICLE V. LETTER OF CREDIT. § 2858. Letter of credit, what. § 2859. How addressed. § 2860. Liability of the writer. I 2861. Letters of credit, either general or special. I 2862. Nature of general letter of credit. § 2863. Extent of general letter of credit. I 2864. A letter of credit may be a continuing guaranty. § 2865. When notice to the writer necessary. § 2866. The credit given must agree with the terms of the letter. § 2858. Letter of credit, what. A letter of credit is a written instrument, addressed by one person to another, requesting the latter to give credit to the person in whose favor it is drawn. En. March 21, 1872. Cal. Rep. Cit. 125. 481. § 2859. How addressed. A letter of credit may be ad- dressed to several persons in succession. En. March 21, 1872. 5§ 2860-2866 StmSTYSHlP. 554 § 2860. Liabrlrty 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. En. March 21, 1872. Cal. Rep. Cit 70, 384. § 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 specified per- sons by name or description, the letter is special. All other letters of credit are general. En. March 21, 1872. Credit to correspond with terms of the letter: See post, sec. 2866. § 2862. Nature of general letter of credit. A general letter of credit gives any person to whom it may be shown authority to comply with its request, and by his so doing it becomes, as to him, of the same effect as if addressed to him by name. En. March 21, 1872. § 2863. Extent of general letter of credit. Several per- sons may successively give credit upon a general letter. En. March 21, 1872. § 2864. A letter of credit may be a continuing guaranty. If the parties to a letter of credit appear, by its terms, to contemplate a course of future dealing between the parties, it is not exhausted by giving a credit, even to the amount limited by the letter, which is subsequently re- duced or satisfied by payments made by the debtor, but is to be deemed a continuing guaranty. En. March 21, 1872. § 2865. When notice to the writer necessary. The writer of a letter of credit is liable for credit given upon it without notice to him, unless its terms express or imply the necessity of giving notice. En, March 21, 1872. Cal. Rep. Clt. 125, 481. § 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. En. JKarch 21. 1879. <5ai. Kep. Clt. 61, 430. LIENS IN GENERA.L.. §§ 2872-287' TITLE XIV. LIEN. Chapter I. Liens in General, §§ 2872-2913. II. Mortgage, §§ 2920-2972. III. Pledge, § 2986-3011. IV. Bottomry, §§ 3017-3029. V. Respondentia, §§ 3036-3040. VI. Other Liens, §§ 3046-3065. VII. Stoppa€;e in Transit, §§ 3076-3080 CHAPTER I. LIENS IN GENERAL, Article I. EVefinition of Liens, §§ 2872-2877. EL Creation of Liens, §§ 2881-2884. in. Effect of Liens, §§ 2888-2892. IV. Priority of Liens, §§ 2897-2899. V. Redemption from Liens, §§ 2903-290S. VI. ExUnctlon of Liens, §§ 2909-2913. ARTICLE I. DEFINITION OP LIENS, § 2872- Lien, what. § 2873. Liens, general or special. § 2874. General lien, what. § 2875. Special lien, what. § 2876. Prior liens. § 2877. Contracts subject to provisions of this chaptw. § 2872. Lien, what. A lien is a charge imposed in some mode other than by a transfer in trust upon specific prop- erty, by which it is made security for the performance of an act. En. March 21, 1872. Am'd. 1877-8, 88. Cal. Rep. Cit. 118, 419; 121, 384; 126, 469. Compare Code Civ. Proc, sec. 1180. Unclaimed property, rights in relation to: See Pol. Code, sees. 3152 et seq. § 2873. Liens, general or special. Liens are either gen- eral or special. En. March 21, 1872. § 2874. General lien, what. A general lien in one which the holder thereof is entitled to enforce as a security for the performance of all the obligations, or all of a partic- §§ 2875-2882 LIENS IN GENERAL. 656 ular class of obligations, which exist in his favor against the owner of the property. En. March 21, 1872. Factors. — Usage of trade usually gives factors a general lien, which is established in this state by section 3053, post. Banker: Post, sec. 3054. Master of ship: Post, sec. 3055. Mate and seamen: Post, sec. 3056. Lien for services: See post, sec. 3051. § 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 obligations as may be incidental thereto. En. March 21, 1872. Gal. Rep. Git. 146, 560. Incidental thereto: See next section. § 2876. Prior liens. Where the holder of a special lien is compelled to satisfy a prior lien for his own protec- tion, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists. En. March 21, 1872. Gal. Rep. Git. 121, 656. § 2877. Contracts subject to provisions of this chapter. Contracts of mortgage, pledge, bottomry, or respondentia, are subject to ail the provisions of this chapter. En. March 21, 1872. ARTIGLE II. CREATION OF LIENa 5 2881. Lien, how created. § 2S82, No lien for claim not due. § 2883. Lien on future interest. § 2884. Lien may be created by contract. § 2881. Lien, how created. A lien is created* 1. By contract of the parties; or, 2. By operation of law. En. March 21, 1872. Gal. Rep. Git. 80, 116; 92, 79; 118, 419; 126, 469; 146, 560. § 2882. No lien for claim not due. No lien arises by mere operation of law until at the time at whidi the act to 8S7 LIENS IN GENERAL. §§ 2883-2890 be secured thereby ought to be performed. En. March 21, 1872. Cal. Rep. Cit. 73, 20. § 2883. Lien on future interest. An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the thing, to the extent of such interest. En. March 21, 1872. Cal. Rep. Cit. 118, 419. § 2884. Lien may be created by contract. A lien may be created by contract, to take immediate effect, as se- curity for the performance of obligations not then in ex- istence. En. March 21, 1872. CaL Rep. Cit. 77, 386; 80, 116; 121, 274. ARTICLE III. EFFECT OF LIENS. § 2888, § 2889, § 2890. § 2891, § 2892, lAetL, or contract for lien, transfers no title. Certain contracts void. Creation of lien -does not Imply personal obligratlon. Extent of lien. Holder of lien not entitled to compensation. § 2888. Lien, or contract for lien, transfers no title. Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien. En. March 21, 1872. Cal. Rep. Cit. 73, 306; 99, 518; 101, 452; 105, 297; 105, 468; 112, 12; 112, 219; 112, 601; 115, 593; 121, 519; 126, 207; 128, 406; 128, 407; 138, 336. Post, sees. 2927 et seq. § 2889. Certain contracts void. All contracts for the forfeiture of property subject to a lien, in satisfaction of the obligation secured thereby, and all contracts in rJ^ straint of the right of redemption from a lien, are void. En. March 21, 1872. CaL Rep. Cit. 85, 368; 105, 76; 114, 599; 120, 153; 12a. 154; 128, 406; 128, 407. § 2890. Creation of lien does not imply personal obliga- tion. The creation of a lien does not of itself imply thai §§ 2891-2OT9 LIENS IN GENERAL. 558 any person is bound to perform the act for which the lien is a security. En. March 21, 1872. Gal. Rep. Cit. 114, 139. See post, sees. 2909, 2928, 3000. § 2891. Extent of lien. The existence of a Hen upon property does not of itself entitle the person in whose favor it exists to a lien upon the same property for the performance of any other obligation than that which the lien originally secured. En. March 21, 1872. Gal. Rep. Cit. 146, 560. § 2892. Holder of lien not entitled to compensation! One who holds property by virtue of a lien thereon, is not entitled to compensation from the owner thereof for any trouble or expense which he incurs respecting it, ex- cept to the same extent as a borrower, under sections 1892 and 1893. En. March 21, 1872. ARTIGL-E rV. I^IORITY OF LIKNa § 2897. Priority of liens, § 2898. Priority of mortgag-e for price. I 2899. Order of resort to different funds. § 2897. Priority of liens. Other things being equal, (Ef- ferent liens upon the same property have priority accord- ing to the time of their creation, except in cases of bot- tcmry and respondentia. En. March 21, 1872. § 2898. Priority of mortgage for price. A mortgage given for the price of real property, at the time of its conveyance, has priority over all other liens created against the purchaser, subject to the operation of the re- cording laws. En. March 21, 1872. Gal. Rep. Git. 87, 627; 120, 683. § 2899. Order of resort to different funds. Where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself, or of injustice to other persons, must resort to the property in the following order on the demand of any party interested: 55d UlfiNS In general. §§ 2903, 2904 L To the things upon which he has an exclusive lien; 2. To the things which are subject to the fewest sub- ordinate liens; 3. In like manner inversely to the number of subordi- nate liens upon the same thing; and, 4. When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had — (1) To the things which have not been transferred since the prior lien was created; (2) To the things which have been so transferred with- out a valuable consideration; and, (3) To the things which have been so transferred for a valuable consideration in the inverse order^ of the trans- fer. En. March 21, 1872. Cal. Rep. Cit. 114, 541; 119, 296; 119, 354; 119, 355; 135, 117; 139, 352; 139, 361; 141, 12; 142, 557. Marshaling of assets: See post, sec 3433. ABTICLE V. RfflDE^iPTION FROM LIENS. S 2903. Right to redeem. I 2904. Rights of inferior lienor. § 2905. Redemption from lien, how made. § 2903. Right to redeem. Every person, having an in- terest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and be- fore his right of redemption is foreclosed, and, by such re- demption, becomes subrogated to all the benefits of the lien, as against all owners of other interests in the prop- erty, except in so far as he was bound to make such re- demption for their benefit. En. March 21, 1872. Am'd. 1905, 617. The change consists in the addition of the clause after the word "fore- closed." The design of the amendment is to state anvi apply the rule of equity in such sases, it being feared that the declaration of a similar rule in section 2904, and its omission in this section might lead to doubt. — Code Commissioner's Note. Cal. Rep. Cit. 61, 429; 79, 120; 80, 355; -95, 195; 95, 196; 95, 201; 95, 203. Redemption from execution sale: See Code Civ. Proc, sees. 346, 347, 701 et seq. Pledgor's right of redemption may be foreclosed: Sec. soil. post. I 2904. Rights of inferior lienor. One who has a lien Inferior to another, upon the same property, has a right; §S 2905-2911 Liens in general. seo 1. To redeem the property in the same manner as its owner might, from the superior lien; and, 2. To be subrogated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby. En. March 21, 1872. CaJ. Rep. Cit 78, 6(«; 78, 604. § 2905. Redemption from lien, how made. Redemption from a lien is made by performing or offering to perform, the act for the performance of which it is a security, and paying or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay. E^n. March 21, 1872. CaL Rep. Clt 101, 548. ARTICLE VI. ESXTINCTION OF LIENS. { 2909. U^ai deemed accessory to the act whose performance It se- cures. § 2910. Extinction by sale or conversion. I 2911. Lien extinguished by lapse of time imdcr statute of limitations. § 2912. Apportionment of lien. § 2913. When restoration extinguishes lien. § 2909. Lien deemed accessory to the act whose per- formance it secures. A lien is to be deemed accessory to thfe act for the performance of which it is a security, whether any person is bound for such performance or not, and is extinguishable in like manner with any other ac- cessory obligation. En. March 21, 1872. Cal. Rep. Cit. 104, 12; 122, 416. Assignment of debt: See sec. 2936, post. § 2910. Extinction by sale or conversion. The sale of any property on which there is a lien, in satisfaction of the claim secured thereby, or in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon. En. March 21, 1872. Cal. Rep. Cit 74, 255; 100, 37; 111, 185; 117, 368; 122, 283; 122, 416; 124, 288; 142, 542; 142, 543. I § 2911. Lien extinguished by lapse of time under stat- ute of limitation. A lien is extinguished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the prin- cipal obligation. En. March 21, 1872. OaL Rep. Cit. 56, 343; 58, 151; 58, 152; 66, 336; 72, 311* U5, 176; U6, 269; 120, 222; 120, 223; 122, 416; 122, 661 MORTGAGE. §§ 2912, 2913 418; 124, 512; 131, 439; 132, 423; 132, 48; 137, 385; 137. 386; 140, 20; 140. 21; 142, 475; 142, 480; 144, 361; 144, 577; 144, 578. See Code Civ. Proc, sees. 335-347. § 2912. Apportionment of lien. The partial performance 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. En. March 21, 1872. Cal. Rep. Cit. 122, 416 § 2913. When restoration extinguishes lien. The vol- untary restoration of property to its owner by the holder of a lien thereon, dependent upon possession, extinguishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it, notwithstanding any such agreement, as to creditors of the owner and persons, sub- sequently acquiring a title to the property, or a lien there- on, in good faith, and for value. En. March 21, 1872. Am'd. 1873-4, 260; 1905, 617. Gal. Rep. Cit. 59, 159; 59, 168; 99, 518; 122, 416. CHAPTER II. MORTGAGE. Article I. Mortgages in General, §§ 2920-2942. II. Mortgages of Real Property, §§ 2947-2952. m. Mortgages of Personal Property, §§ 295&-29TJ. ARTICLE I. MORTGAGES UN GENERAU § 2920. Mortgage, what. § 2921. Property adversely held may be mortgaged. § 2922. To be in writing. § 2923. Lien of a mortgage, when special. § 2924. Transfer of interest, when a mortgage and when a pledgre. § 2925. Transfer made subject to defeasance may be proved. 5 2926. Mortgage on what a lien. § 2927. Mortgage does not entitle mortgagee to possession. § 2928. Mortgage not a personal obligation. 5 29291 Waste. § 2930. Subsequently acquired title inures to mortgagee. § 2931. Foreclosure. § 2932. Power of sale. § 2933. Power of attorney to execute. § 2934. Recording assignment of mortgage. § 2935. Recording assignment of mortgage not notice to mortgagor. § 2936. Mortgage passes by assignment of debt. § 2937. Time allowed for filing mortgage for record. (Repealed.) § 2938. Mortgage, how discharged. § 2939. Same. § 2939^. Discharge by foreign executors. § 2040. Certificate anvl record of discharge. § 2941. Duty of mortgagee on satisfaction of mortgage. I 2942. Provisions of this chapter do not affect bottomry or respond- entia, avii Code--36 §§ 2920-2524 MonTGAGii. 562 § 2920. Mortgage, what. Mortgage is a contract by which specific property is hypothecated for the perform- ance of an act, without the necessity of a change of pos- session. En. March 21, 1872. Gal. Rep. Git. 58, 15; 66, 98; 88, 441; 98, 518; 107, 148; 109, 365; 112, 187; 121, 489; 122, 479; 125, 461; 128, 300; 128, 491; 135, 279; 147, 389. The code substitutes, instead of the actual possession previously requisite, the recording provisions of sees. 2957, 2959, 2962, 2963, 2965, and 2966. Actual transfer of possession of personalty would change it into a pledge: See sec. 2924, post. § 2921. Property adversely held may be mortgaged. A mortgage may be created upon property held adversely to the mortgagor. En. March 21, 1872. This provision is a logical sequence of section 2947, post, and section 1047, ante. § 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 prop- erty. En. March 21, 1872. Gal. Rep. Git. 53, 680; 56, 344; 57, 471; 58, 152; 65, 516; 68, 53; 74, 350; 84, 205; 85, 288; 112, 366; 117, 415; 120, 223; 120, 224; 122, 418; 122, 419; 122, 420; 126, 469; 128, 551; 129, 417; 134, 600; 137, 389; 140, 689; 144, 783; 147, 388. Mortgage, form of: Sec. 2948, post. § 2923. Lien of a mortgage, when special. The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of possession. En. March 21, 1872. Special lien, definition: See ante, sec. 2875. § 2924. Transfer of interest, when a mortgage and when a pledge. Every transfer of an interest in prop- erty, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accom- panied by actual change of possession, in which case it is to be deemed a pledge. En. March 21, 1872. Am'd. 1873-4, 260. Gal. Rep. Git. 58, 15; 59, 112; 64, 514; 71, 411; 74, 254; 80, 352; 91, 461; 100, 254; 105. 469; 105, 470; 106, 680; 107, 148; 121, 384; 121, 542; 123, 694; 126, 604; 127, 256; 128, 300; 129, 163; 135, 279; 144, 783; 147, 389. «63 MORTGAGE. §§ 292&-2SKSJ Deed absolute on its face, when a mortgage: See post, sees. 2925, 2950. § 2925. Transfer made subject to defeasance may be proved. The fact that a transfer was made subject to defeasance on a condition, may, for the purpose of show- ing 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. En. March 21, 1872. Cal. Rep. Cit. 58, 15; 64, 514; 71, 411; 88, 325; 91, 461; 119, 21; 123, 694; 127, 256; 144, 132. Deed absolute on its face a mortgage: See sees. 2924, ante; 2950, post. Recording defeasance: See sec. 2950, po€^. § 2926. Mortgage on what a Hen. A mortgage is a lien upon everything that would pass by a grant of the prop- erty. En. March 21, 1872. Cal. Rep. Cit. 80, 252; 80, 352; 126, 605. Fixtures generally: See ante, sec. 660. Growing crops: Post, sec. 2972. § 2927. Mortgage does not entitle mortgagee to posses- sion. A mortgage does not entitle the mortgagee to the possession of the property, unless authorized by the ex- press terms of the mortgage; but after the execution of the mortgage the mortgagor may agree to such change of pos- session without a new consideration. En. March 21, 1872. Gal. Rep. Cit. 72, 309; 80, 326; 88, 440; 96, 32; 106, 680; 169, 362; 109, 365; 112, 187; 117, 416; 121, 544; 127. 652; 128, 491. Mortgagee's possession: Ante, sees. 2920, 2923. § 2928. Mortgage not a personal obligation. A mort- gage does not bind the mortgagor personally to perform the act for the performance of which it is a security, un- less there is an express covenant therein to that effect. En. March 21, 1872. Cal. Rep. Cit. 57, 642; 66, 98; 101, 419; 127, 204; 137, 255. § 2929. Waste. No person whose interest is subject to the lien of a mortgage may do any act which will sub- §§ 2930-2934 MORTGAGE. 864 stantially impair the mortgagee's security. En. March 21, 1872. Cal. Rep. Cit. 80, 246. Damages are recoverable by the purchaser at the sale, for injuries by tenant: See sec. 746, Code Civ. Proc. § 2930. Subsequently acquired title Inures to mort- gagee. Title acquired by the mortgagor subsequent to the execution of the mortgage inures to the mortgagee as se- curity for the debt, in like manner as if acquired before the execution. En. March 21, 1872. Am'd. 1873-4, 260. Cal. Rep. Cit. 52, 335; 52, 336; 67, 279; 98, 518; 138, 683; 144, 146. Sec. 1106, ante. § 2931. Foreclosure. A mortgagee may foreclose the right of redemption of the mortgagor in the manner pre- scribed by the Code of Civil Procedure. En. March 21, 1872. Cal. Rep. Cit. 144, 333. Foreclosure of mortgage. — Place of trial: Code Civ. Proc, sec. 392. Receiver may be appointed: Id., sec. 564. Proceedings in actions for foreclosure: Id., sec. 726. Rem- edy exclusive: Id., sec. 744. Surplus, how disposed of: Id., sec. 727. Installment loans: Id., sec. 728. Actions against estates: Id., sec. 1500. § 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. En. March 21, 1872. Cal. Rep. Cit. 57, 482; 101, 227. Power of sale is a part of the security and passes by assignment of the debt: Sec. 858, ante. § 2933. Power of attorney to execute. A power of at- torney 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 property. En. March 21, 1872. Cal. Rep. Cit. 144, 35. Authorization generally: See sec. 2809, ante. § 2934. Recording asslgnnnent of mortgage. An assign- ment of a mortgage may be recorded in like manner as a mortgage, and such record operate as notice to all per- KSB MORTGAGE. 93 2935-2989 sons subsequently deriving title to the mortgage from tho assignor. En. March 21, 1872. Am'd. 1873-4, 261. Cal. Rep. Cit. 109, 49; 120, 241; 120, 242. § 2935. Recording assignment of mortgage not notice to mortgagor. When the mortgage is executed as security for money due, or to become due, on a promissory note, bond, or other instrument, designated in the mortgage, the record of the assignment of the mortgage is not, of itself, notice to a mortgagor, his heirs, or personal repre- sentatives, so as to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument. En. March 21, 1872. Am'd. 1873-4, 261. Cal. Rep. Cit. 120, 242; 136, 316. § 2936. IVlortgage passes by assignment of debt. The assignment of a debt secured by mortgage carries with It the security. En. March 21, 1872. Cal. Rep. Git. 88, 327; 93, 117; 109, 48. § 2937. Time allowed for filing mortgage for pecord. (Repealed.) En. March 21, 1872. Rep. 1873-4, 261. Cal. Rep. Cit. 46, 607; 46, 608; 46, 609; 127, 309. § 2938. Mortgage, how discharged. A recorded mort- gage may be discharged by an entry in the margin of the record thereof, signed by the mortgagee, or his personal representative or assignee, acknowledging the satisfaction of the mortgage in the presence of the recorder, who must certify the acknowledgment in form substantially as fol- lows: "Signed and acknowledged before me, this day of , in the year . A B, Recorder." En. March 21, 1872. Cal. Rep. Cit. 72, 457; 119^ 297. § 2939. Same. 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 mort- gagee, his personal representatives, or assigns, acknowl- edged or proved and certified as prescribed by the chapter on rcording transfer's, stating that the mortgage has been paid, satisfied, or discharged. En. March 21, 1872. §§ 2939y2-2942 MORTGAGE. 666 § 29391/^. Discharge by foreign executors. Foreign ex- ecutors and administrators may satisfy mortgages upon the 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 certi- fied and authenticated copy of their letters testamentary or of administration, and which certificate shall also recite that said letters have not been revoked. En. Stats. 1895, 29. § 2940. Certificate and record of discliarge. A certifi- cate of the discharge of a mortgage, and the proof or ac- knowledgment 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 dis- charge made upon the record of the mortgage to the book and page where the discharge is recorded. En. 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 demand of the mort- gagor, execute, acknowledge, and deliver to him a certifi- cate of the discharge thereof, so as to entitle it to be re- corded, or he must enter satisfaction, or cause satisfaction of such mortgage to be entered of record; and any mort- gagee, or assignee of such mortgagee, who refuses to exe- cute, acknowledge, and deliver to the mortgagor the cer- tificate of discharge, or to enter satisfaction or cause satis- faction of the mortgage to be entered, as provided in this chapter, is liable to the mortgagor, 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. En. March 21, 1872. Am'd. 1873-4, 261; 1880, 11. Cal. Rep. Cit. 106, 200; 106, 201. § 2942. Provisions of this chapter do not affect bottomry or respondentia. Contracts of bottomry or respondentia, although in the nature of mortgages, are not affected by any of the provisions of this chapter. En. March 21, 1872. Bottomry: See sees. 3017 et seq., post. Respondentia: See sees. 3036 et seq., post. ia MORTGAGB. SS 2947-2^)50 ARTICLE II. MORTGAGES OP RKA.L, PROPBRTT. § 2947. What real property may be mortgaged. § 2948. Form of mortgage. § 2949. What must be recorded as a mortgage. (Repealed.) § 2950. Defeasance, to aCPect grant absolute on its face, must b« re- corded. § 2951. By whom paid after property passes by sticcession or wUl. (Repealed.) § 2952. May be recorded. § 2947. What real property may be mortgaged. Any interest in real property which is capable of being trans- ferred may be mortgaged. En. March 21, 1872. Cal. Rep. Cit. 75, 106; 99, 548; 122, 627; 124, 329; 131, 606. See sec. 1045, ante. Property held adversely may be mortgaged: Ante, sec 2921. § 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 , mortgagor, to C D, of , mort- gagee, witnesseth: "That the mortgagor 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.** En. March 21, 1872. Cal. Rep. Cit. 67, 275; 124, 329. Deed absolute In form construed as a mortgage: See sees. 2924, 2925, ante, and see sec. 2950, post. § 2949. What must be recorded as a mortgage, (Re- pealed.) En. March 21, 1872. Rep. 1873-4, 262. Cal. Rep. Cit. 124, 329. § 2950. Defeasance, to affect grant absolute on its face, must be recorded. When a grant of real property pur- ports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person other than the grantee or his heirs or devises, or persons having actual notice, unless an instrument of defeasance. §§ 2951-2865 MORTGAGE. 568 duly executed and acknowledged, shall have been recorded in the oSSce of the county recorder of the county where the property is situated. En. March 21, 1872. Cal. Rep. Cit 119, 21; 124, 327; 144, 132. See sec. 1217, ante. Deed absolute on its face, when a mortgage: See sees. 2924, 2925. § 2951. By whom paid after property passes by suo- cession or will. (Repealed.) En. March 21, 1872. Rep. 1873-4, 262. Cal. Rep. Cit. 64, 274; 124, 327. § 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. En. March 21, 1872. Am'd. 1873-4, 262. Cal. Rep. Cit 46, 607; 46, 608; 109, 4^; 124, 327; 124, 329. See sees. 1169-1172 and 1213-1217, ante. Fees for acknowledgment and recording: PoL Code, sees. 798, 4235, 4245. Mortgages recorded in separate set of books: Sec. 1171, ante. ARTICLE m. MaBTGAGB OF PERSONAL FROFHKTT. § 2J»S5. What personal property may be mortgajped. § 2956. Form of personal mortgage. I 2957. When void as to third persons. § 2958. Mortgage of ships, when void as to third persosuk § 2fl59. 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 wh^t. § 2966. May be take* by mortgagee as a pledge, when. § 2967. How foreclosed. § 2968. Mortgage property may be levied upom. § 2969. Limitations on right of levy. § 2970. Distribution of proceeds of sale imder process. § 2971. Sections not applicable to mortgage of certain ships. § 2972. Lien of a mortgage on growing crop. § 2973. Validity of certain mortgages. § 2955. What personal property may be mortgaged. Mortgages may be made upon the following personal prop- erty, and none other: 1. Locomotives, engines and other rolling stock of a railroad. §2955 Am'H. 569 MORTGAGE. ^ 5 2855 2. Steamboat machinery, the machinery used by ma- chinists, foundr^men, and mechanics. 3. Steam engines and boilers. 4. Mining machinery. 5. Printing presses and material. 6. Professional libraries. 7. Instruments of surveyors, physicians and dentists. 8. Upholstery, furniture and household goods. 9. Oil paintings, pictures and works of art. 10. All growing crops, including grapes and fruit. 11. Vessels of more than five tons burden. 12. Instruments, negatives, furniture and fixtures of a photograph gallery. 13. The machinery, casks, pipes, tubes and utensils used in the manufacture or storage of wine, fruit brandy, fruit syrup or sugar; also wines, fruit brandy, fruit syrup, or sugar, with the cooperage in which the same are contained. 14. Pianos and organs. 15. Iron and steel safes. 16. Cattle, horses, mules, swine, sheep, goats and tur- keys and the increase thereof. 17. Harvesters, threshing outfits, hay presses, wagons, farming implements, and the equipments of a livery stable, including buggies, carriages, harness, robes. 18. Abstract systems, books, maps, papers, and slips of searchers of records. 19. Raisins and dried fruits, cured or in process of being cured. Also all boxes, fruit graders, drying trays and fruit ladders. 20. Bees and bee-hives, apiaries and apiary stock, in- cluding frames, combs and extraxitors, also honey at apiaries. 21. Machinery, tanks, stills, agitators, leachers, and ap- paratus used in producing and refining petroleum, asphal-- tum, fuel oils, lubricating oils and greases. 22. The bedroom furniture, carpets, tables, stoves, ranges, cooking utensils and all furniture and equipments usually found in a hotel. En. March 21, 1872. Am*d. 1875- 6, 79; 1877-8, 88; 1887, 5; 1893, 84; 1895, 57; 1897, 95; 1903, 78; 1905, 36. Cal. Rep. Cit. 56, 631; 57, 255; 63, 4; 71, 334; 84, 206; 104, 26; 105, 469; 105, 470; 106, 679; 107, 147; 109, 199; 109, 201; 112, 184; 124, 330; 127, 297; 131, 606; 13, 607; Subd. 5—94, 525. Subd. 8—63, 333; 91, 286; 101, 10. Subd. 9—91, 639. Subd. 10—115, 93; 123, 236; 124, 327. Subd. 16—116, 83; 126, 204; 133, 498. §§ 2956-2958 MORTGAGE. 570 Removal of property from mortgaged premises, when larceny: See Pen Code, sec. 502^. Further chattel mortgage is larceny: See Pen. Code, sec. § 2956. Form of personal mortgage. A mortgage of per- sonal property may be made in substantially the follow- ing form: "This mortgage, made the day of , in the year , by A B, of , by occupation a , mortgagor, to C D, of , by occupation a , mortgagee witnesseth: "That the mortgagor mortgages to the 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." En. March 21, 1872. Cal. Rep. Cit. 63, 551; 91, 639; 106, 678; 124, 227. § 2957. When void as to third persons. A mortgage-of personal property is void as against creditors of the mort- gagor and subsequent purchasers and incumbrancers of the property in good faith and for value, unless: 1. It is accompanied by the aflSdavit 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. En. March 21, 1872. Cal. Rep. Cit. 63, 551; 63, 552; 67. 34; 67, 57; 67, 58; 84, 556; 84, 557; 91, 638; 94, 496; 104, 427; 105, 330; 105, 332; 105, 470; 106, 679; 108, 253; 108, 257; 115, 319; 115, 325; 121, 274; 124, 327; 127, 296; 127, 304; 127, 306; 127. 308; 127, 309; 128, 105. Subd. 1—130, 477; 131, 607, Subd. 2—143, 6. Recording: See sees. 2959, 2961-2965, post. § 2958. iVlortgage of ships, when void as to third per- sons. A mortgage of any vessel or part of any vessel un- der the flag of the United States is void as against any per- son (other than the mortgagor, his heirs, and devisee, and persons having actual notice thereof), unless the mort- gage is recorded in the office of the collector of customs where such vessel is registered or enrolled. En. March 21, 1872. Cal. Rep. Cit. 124, 327. 571 MORTGAGE. §§ 2959-2963 § 2959. Where recorded. A mortgage of personal prop- erty must be recorded in the oflBce of the county recorder of the county in which the mortgagor resides, and also of the county in which the property mortgaged is situated, or to which it may be removed. En. March 21, 1872. Cal. Rep. Cit. 63, 551; 115, 319; 115, 321; 115, 322; 115, 323; 124, 327; 127, 298. Duty of recorder: See PoL Code, sec. 4234 et seq. Record in different places: See sec. 2962. § 2960. Property in transit, where to be recorded. For the purposes of this article, property in transit from the possession of the mortgagee to the county of the residence of the mortgagor, or to a location for use, is, during a reasonable time for such transportation, to be taken as situated in the county in which the mortgagor resides, or where it is intended to be used. En. March 21, 1872. Cal. Rep. Cit. 124, 327. See sec. 2965, subd. 1. § 2961. Property of a common carrier, where to be re- corded. For a like purpose, personal property used in conducting the business of a common carrier is to be tak- en as situated in the county in which the principal oflSce or place of business of the carrier is located. En. March 21, 1872. Cal. Rep. Cit. 124, 327. § 2962. Recorded in different places. A single mort- gage of personal property, embracing several things of such character or so situated that by the provisions of this ar- ticle 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. En. March 21, 1872. Cal. Rep. Cit. 124, 327; 127, 310. County where property is situated: See 2959. § 2963. Personal mortgage may be recorded. Except as it is otherwise in this article provided, mortgages of per- sonal property may be acknowledged, or proved and certi- fied, recorded in like manner and with like effect as grants or real property; but they must be recorded in books kept for personal mortgages exclusively. En. March 21, 1872. Cal. Rep. Cit. 124, 327. See sees. 1169-1171 and 1213-1217, ante. §§ 2964-2968 MORTGAGE. 572 § 2964. Certified copies may be recorded, when. A cer- tified copy of a mortgage of personal property once re- corded may be recorded in any other county, and when so recorded the record thereof has the same force and ef- fect as though it was of the original mortgage. En. March 21, 1872. Cal. Rep. Cit. 124, 327. § 2965. Property exempt from effect of mortgage, when. When personal property mortgaged is thereafter by the mortgagor removed from the county in which it is situ- ated, it is, except as between the parties to the mortgage, exempted from the operation thereof, unless either: 1. The mortgagee, within thirty days after such remov- al, causes the mortgage to be recorded in the county to which the property has been removed; or, 2. The mortgagee, within thirty days after such re- moval, takes possession of the property, as prescribed in the next section. En. March 21, 1872. Cal. Rep. Cit 115, 319; 115, 320; 115, 323; 124, 327; 127, 298. § 2966. May be taken by mortgagee as a pledge, when. If the mortgagor voluntarily removes or permits the re- moval 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. En. March 21, 1872. Cal. Rep. Cit. 124, 327. § 2967. How foreclosed. A mortgagee of personal prop- erty, when the debt to secure which the mortgage was exe- cuted becomes due, may foreclose the mortgagor's right of redemption by a sale of the property, made in the man- ner and upon the notice prescribed by the title on Pledge, or by proceedings under the^ Code of Civil Procedure. En. March 21, 1872. Cal. Rep. Cit. 124, 327. Sale of pledge: See sees. 3000 et seq., post Actual notice required: See 3002, post. Foreclosure: Code Civ. Proc, sees. 726-729. § 2968. Mortgage property may be levied upon. Per- sonal property mortgaged may be taken under attachment zn ItOHTGAGB. S§ 2969-2972 or execution issued at the suit of a creditor of the mort- gagor. En. March 21, 1872, Cax. Rep. Cit. 56, 218; 67, 59; 71, 70; 91, 121; 111, 234; 124, 327. § 2969. Limitations on right of levy. Before the prop- erty is so taken, the oflacer 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. En. March 21, 1872. Cal. Rep. Cit 56, 218; 63, 551; 63, 552; 67, 59; 71, 70; 91, 121; 91, 122; 111, 234; 124, 327; 126, 289; 126, 290; 131, 556. Measure of special owner's damage for conversion: See post, sec. 3338. § 2970. Distribution of proceeds of sale under process. When the property thus taken is sold under process, the oflacer must apply the proceeds of the sale as follows: 1. To the repayment of the sum paid to the mortga- gee, 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. En. March 21, 1872. Cal. Rep. Cit. 63, 552; 124, 327. § 2971. Sections not applicable to mortgage of certain ships. Sections 2957, 2959, 2960, 2961, 2962, 2963, 2964, 2965, and 2966 do not apply to any mortgage of "a ship or part of a ship under the flag of the United States. En. March 21, 1872. Cal. Rep. Cit. 124, 327. § 2972. Lien of a mortgage on growing 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 mortgagor. En. Stats. 1877-8, 89. Cal. Rep. Cit 59, 142; 63, 4; 70, 197; 77, 244; 107, 29; 109, 201; 117, 416; 124, 327; 142, 544. ^ § 2973. Validity of certain mortgages. Mortgages of per- son«il property, other than that mentioned in section twenty-nine hundred and fifty-five, and mortgages not made in conformity with the provisions of this article, § 298€ PLETDGE. 874 are nevertheless valid betv/een the parties, their heirs, legatees, and personal representatives, and persons who, before parting with value, have actual notice thereof. En. Stats. 1905, 617. This section merely declares the law already existing upon the suhject. It Is deemed proper to have the same expressed In the Code. — Code Commissioner's Note. CHAPTER in. PLEDGE. § 2986. Pledge, what. § 2987. When contract la 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 ap- parent owner for the purpose of pledge. § 2992. Pledge lender, what. § 2993. Pledge holder, what. § 2994. When pledge lender may withdraw property pledged. § 2995. Obligations of pledge holder § 2996. Pledge holder must enforce rights of pledgee. § 2997. Obligation of pledgee and pledge holder, for reward. § 2998. Gratuitous pledge holder. § 2999. Debtor's mi.srepresentatlon of value of pledcre. § 3000. When pledgee may sell. § 3001. SaJe of pledged property. § 3O02. Notice of sale to pledgor. 5 30O3. Waiver of notice of sale. § 3004. Waiver of demand. § 3005. Sale must be by auction. 1$ 3006. Pledgee's sale of securities. § 3007. Sale on the deman-d of the pledgor. § 3008. Surplus to be paid to pledgor. § 3009. Pledgee may retain all that can become due. § 3010. Pledgee or pledge holder may purchase. § 3011. Pledgee may foreclose right of redemption. § 2986. Pledge, what. Pledge is a deposit of personal property by way of security for the performance of an- other act. En. March 21, 1872. Cal. Rep. Cit. 76, 172; 113, 466; 121, 519; 123, 648; 125, 187; 133, 195; 144, 633. Increase of property pledged: Sec. 2989, infra. Note. — Mtich diflaculty has arisen in determining wheth- er a certain transaction is a pledge or a chattel mort- age, the question generally being whether the title has passed or not. In this state, it has been seen, title never passes in case of property conveyed or deposited as se- curity: Sec. 2888, ante. And, also, whenever the posses- sion of personal property is transferred ns security only, It is to be treated as a pledge: Sec. 2987. post. And even 575 PLKDGE. §§ 2987-2993 a chattel mortgage, when the possession of the property mortgaged is transferred, becomes a pledge: Sec. 2924, and sec. 2987. The question is, therefore, much simplified, possession being the criterion. § 2987. When contract is to be deemed a pledge. Every contract by which the possession of personal property is transferred, as security only, is to be deemed a pledge. En. March 21, 1872. Cal. Rep. Cit. 99, 518; 112, 602; 113, 467; 123, 648; 133, 195; 144, 633. § 2988. Delivery essential to validity of pledge. The lien of a pledge is dependent on possession, and no pledge is valid until the property pledged is delivered to the pledgee, or to a pledge holder, as hereafter prescribed. En. March 21, 1872. Cal. Rep. Cit. 59, 159; 59, 168; 61, 429; 71, 334; 112, 13; 122, 283; 122, 470; 125, 187. § 2989. Increase of thing. The increase of property pledged is pledged with the property. En. March 21, 1872. § 2990. Lienor may pledge property to extent of his lien. One who has a lien upon property may pledge it to the extent of his lien. En. March 21, 1872. Compare next section. Lienor's action for damages: See sec. 3338, post. § 2991. Real owner cannot defeat pledge of property transferred to apparent owner for the purpose of pledge. One who has allowed another to assume the apparent own- ership 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 ordinary course of business, and for value. En. March 21, 1872. Cal. Rep, Cit. 52, 616; 59, 168; 90, 13; 121, 576; 124, 289. § 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 pledgor for himself, except as hereinafter stated. En. March 21, 1872. . Cal. Rep. Cit. 133, 195. § 2993. Pledge holder, what. A pledgor and pledgee may agree upon a third person with whom to deposit the i§ 29&4-2999 PUBaDGB. 67« property pledged, who, if he accepts the deposit, is called a pledge holder. En. March 21, 1872. Cal. Rep. Cit. 130, 262. § 2994. When pledge lender may withdraw property pledged. One who pledges property as security for the oh ligation of another, cannot withdraw the property pledged otherwise than as a pledgor for himself might, and if he receives from the debtor a consideration for th(* pledge he cannot withdraw it without his consent. En. March 21, 1872. § 2995. Obligations of pledge holder. A pledge holder for reward cannot exonerate himself from his undertak- ing; and a gratuitous pledge holder can do so only by giving reasonable notice to the pledgor and pledgee to appoint a new pledge holder, and in case of their failure to agree, by depositing the property pledged with some im- partial person, who will then be entitled to a reasonable compensation for his care of the same. En. March 21, 1872. § 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. En. March 21, 1872. Cal. Rep. Cit 121, 520; 130, 262. § 2997. Obligation of pledgee and pledge holder, for re- ward. A pledgee, or a pledge holder for reward, assumes the duties and liabilities of a depositary for reward. En. March 21, 1872. Depositary for reward: See sec. 1852, ante. See sec. 3007, post. § 2998. Gratuitous pledge holder. A gratuitous pledge holder assumes the duties and liabilities of a gratuitous depositary. En. March 21, 1872. Cal. Rep. Cit 125, 599. See ante, sees. 1845 and 2995. § 2999. Debtor's misrepresentation of value of pledge. Where a debtor has obtained credit, or an extension of time by a fraudulent misrepresentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value represented; m PL.BDGB. 8§ 3000-3005 and in default thereof may recover his debt immediately, though it be not actually due. En. March 21, 1872. § 3000. When pledgee may sell. Wheu performance of the act for which a pledge is given is due, in whole or in part, the pledgee may collect what is due to him by a sale of property pledged, subject to the rules and exceptions hereinafter prescribed. En. March 21, 1872. Cal. Rep. Cit. 66, 98; 125, 600; 128, 208; 144, 333. Another remedy is provided by sec. 3011, post. And sale is restricted in case of most choses in action by sec. 3006, post. See also sec. 2890, ante. Foreclosure of right of redemption: Sec. 3011. § 3001. Sale of pledged property. Before property pledged can be sold, and after performance of the act for which it is security is due, the pledgee must demand per- formance thereof from the debtor, if the debtor can be found. En. March 21, 1872. Am'd. 1873-4, 262. Cal. Rep. Cit. 62, 439; 82, 200; 125, 600; 128, 208. § 3002. Notice of sale to pledgor. A pledgee must give actual notice to the pledgor of the time and place at which the property pledged will be sold, at such a reasonable time before the sale as will enable the pledgor to attend. En. March 21, 1872. Cal. Rep. Cit. 68, 526; 82, 200; 125, 600; 128, 208. § 3003. Waiver of notice of sale. Notice of sale may be waived by a pledgor at any time; but is not waived by a mere waiver of demand of performance. En. March 21, 1872. Cal. Rep. Cit. 68, 526; 82, 201; 125, 600. § 3004. Waiver of demand. A debtor or pledgor waives a demand of performance as a condition precedent to a sale of the property pledged, by a positive refusal to per- form, after performance is due; but cannot waive it in any other manner except by contract. En. March 21, 1872. Cal. Rep. Cit. 82, 201; 125, 600. § 3005. Sale must be by auction. The sale by a pledgee, of property pledged, must be made by public auction, in the manner and upon the notice to the public usual at the place of sale, in respect to auction sales of similar prop- 85 8006-3011 PLEDGE. 67U erty; and must be for the highest obtainable price. En. March 21, 1872. Cal. Rep. Clt. QQ, 98; 68, 526; 82, 200; 113, 478; 125, 600. § 3006. Pledgee's sale of securities. A pledgee cannot sell any evidence of debt pledged to him, except the obli- gations of governments, states, or corporations; but he may collect the same when due. En. March 21, 1872. Cal. Rep. Cit. 85, 129; 114, 129; 121, 520; 125, 600; 127, 175; 134, 289. § 3007. Sale on the demand of the pledgor. Whenever property pledged can be sold for a price sufficient to sat- isfy the claim of the pledgee, the pledgor may require It to be sold, and its proceeds to be applied to such satis- faction, when due. En. March 21, 1872. Cal. Rep. Cit. 125, 600. See sec. 3009, infra. § 3008. Surplus to be paid to pledgor. After a pledgee has lawfully sold property pledged, or otherwise collected 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 pledgor, on demand. En. March 21, 1872. Cal. Rep. Cit. 101, 453; 125, 600. I 3009. Pledgee may retain all that can become due. When property pledged is sold by order of the pledgor before the claim of the pledgee is due, the latter may re- tain out of the proceeds all that can possibly become due under his claim until it becomes due. En. March 21, 1872. Am'd. 1878-4, 262. Cal. Rep. Cit. 125, 600. § 3010. Pledgee or pledge holder may purchase. When- ever property pledged is sold at public auction, in the manner provided by section three thousand and five of this code, the pledgee or pledge holder may purchase said property at such sale. En. March 21, 1872. Am'd. 1895, 27. Cal. Rep. Cit. 62, 439; 125, 600. § 3011. Pledgee may foreclose right of redemption. In- stead of selling property pledged, as hereinbefore pro- vided, a pledgee may foreclose the right of redemption by a judicial sale, under the direction of a competent court; and in that case may be authorized by the court to pur- chase at the sale. En. March 21. 1872. Cal. Rep. Cit. 66, 98; 85, 129; 125, 600; 127, 175; 134, 289. Pawnbrokers: Pen. Code, sees. 338-343. 6W BOTTOMRY. ig 3017-3021 CHAPTER IV. BOTTOMRY. I 8017. Bottomry, what. § 8018. Owner of ship may hypothecate. § 3019. When master may hypothecate ship. § 3020. Same. § 3021. When master may hypothecate freight money. I 3022. Rate of interest. § 3023. Rights of lender, when no necessity for bottomry existed. § 8024. Stipulation for personal liability void. § 3025. When money loaned is to be repaid. § 3026. When bottomry loan becomes due. § 3027. Bottomry lien, how lost. I 3028. Preference of bottomry lien over other lieni. I 8029. Priority of bottomry liens. § 3017. Bottomry, what. Bottomry is a contract by which a ship or it 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. En. March 21, 1872. It is independent of possession: Sec. 3027, post, and cases cited. Insurance by owner: See sec. 2660, ante. § 3018. Owner of ship may hypothecate. The owner of a ship may hypothecate it or its freightage, upon bottom- ry, for any lawful purpose, and at any time and place. En. March 21, 1872. § 3019. When master may hypothecate ship. The master of a ship may hypothecate it upon bottomry only for the purpose of procuring repairs or supplies which are necessary for accomplishing the objects of the voyage, or for securing the safety of the ship. En. .March 21, 1872. Freightage, the authority of the master extends to: Sec. 3021. § 3020. Same. 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. En. March 21, 1872. May sell ship and cargo: See sees. 2377-2379, ante. § 3021. When master may hypothecate freight money. The master of a ^hip may hypothecate freightage upon §5 3022-3028 Bottomry. ^ bottomry, under the same circumstances as those which authorize an hypothecation of the ship by him. En. March 21, 1872. § 3022. Rate of Interest. Upon a contract of bottomry, 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. En. March 21, 1872. § 3023, Rights of lender, when no necessity for bot- tomry existed. A lender upon a contract of bottomry, made by the master of a ship, as such, may enforce the contract, though the circumstances necessary to author- ize the master to hypothecate the ship did not in fact exist, if, after due diligence and inquiry, the lender had reasonable grounds to believe, and did in good faith be- lieve, in the existence of such circumstances. En. March 21, 1872. § 3024. Stipulation for personal liability void. A stipu- lation in a contract of bottomry, imposing any liability for the loan independent of the maritime risks, is void. En. March 21, 1872. § 3025. When money loaned is to be repaid. In case of a total loss of the thing hypothecated, from a risk to which the loan was subject, the lender upon bottomry can re- cover nothing; in case of a partial loss, he can recover only to the extent of the net value to the owner of the part saved. En. March 21, 1872. § 3026. When bottomry loan becomes due. Unless it is otherwise expressly agreed, a bottomry loan becomes due immediately upon the termination of the risk, although a term of credit is specified in the contract. En. March 21, 1872. § 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. En. March 21, 1872. § 3028. Preference of bottomry lien over other liens. A bottomry lien, if created out of a real or apparent neces- sity, in good faith, is preferred to every other lien or claim upon the same thing, excepting only a lien for sea- men's wages, a subsequent lien of materialmen for sup- 6S1 RESPONDENTIA. §§ 3029-304') plies or repairs indispensable to the safety of the ship, and a subsequent lien for salvage. En. March 21, 1872. Seamen's wages: Ante, sees. 2048-2066. § 3029. Priority of bottomry liens. Of two or more bottomry liens on the same subject, the latter in date has preference, if created out of necessity. En. March 21, 1872. CHAPTER V. RESPONDENTIA. § 3036. Respondentia, what. § 3037. Respondentia by owner. § 3038. Respondentia by master. § 3039. Rate of Interest. § 3040. Obligations of shipowner. § 3036. Respondentia, what. Respondentia is a con- tract by which a cargo, or some part thereof, is hypothe- cated as security for a loan, the repayment of which is de- pendent on maritime risks. En. March 21, 1872. § 3037. Respondentia by owner. The owner of cargo may hypothecate it upon respondentia, at any time and place, and for any lawful purpose. En. March 21, 1872. § 3038. Respondentia by master. The master of a ship may hypothecate its cargo upon respondentia only in a case in which he would be authorized to hypothecate the ship and freightage, but is unable to borrow sufficient money thereon for repairs or supplies which are neces- sary for the successful accomplishment of the voyage; and he cannot do so, even in such case, if there is no rea- sonable prospect of benefiting the cargo thereby. En. March 21, 1872. Master may sell cargo: Sec. 2379, ante. § 3039. Rate of interest. The provisions of sections 3022 to 3029 apply equally to loans on respondentia. En. March 21, 1872. § 3040. Obligations of sliipowner. 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. En. March 21, 1872. See sec. 2385, ante. Master personally responsible: Sec. 2383, ante. §§ 3046-3048 OTHER LIENS. US2 CHAPTER VI. OTHER LJEN3. S 3046. Lien of seller of real property. § 3047. When transfer of contract waives lien. § 3048. Extent of seller's lien. § 3049. Lien of seller of personal property. § 3050. Purchaser's lien on real property. § 3051. Lien on personal property for service performed. § 3052. Liens on personal property, § 3053. Lien of factor. § 3054. Banker's lien. § 3055. Shipmaster's li«i. § 3056. Seamen's lien. I 3057. Officers' lien. § 3058. Judgment lien. § 3059. Mechanic's lien. § 3060. Lien on ships. § 3061. Lien of workingmen on threshing machines, ete. § 3062. Lien of person In charge of stallion, etc. § 3063. Filing of claim. Notice to purchasers. § 3064. Action to enforce lien. I 3065. Lien of person who cuts, etc, logs, lumber, etc. § 3046. Lien of seller of peal property. One who sells 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 obligation of the buyer. En. March 21, 1872. Gal. Rep. Git. 57, 471; 87, 625; 89, 93; 98, 33; 116, 259; 119, 372; 119, 373; 123, 212; 125, 360. A transfer of personal security waives the lien: Sec. 3047, infra. Transfer by vendee to bona fide purchaser or incum- brancer discharges lien: Sec. 3048, infra. § 3047. When transfer of contract waives lien. Where a buyer of real property gives to the seller a written con- tract 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. En. March 21, 1872. Gal. Rep. Git. 74, 585; 87, 625; 89, 93; 123, 212; 125, 860. § 3048. Extent of seller's lien. The liens defined in sections 3046 and 3050 are valid against every one claim- ing under the debtor, except a purchaser or incumbrancer in good faith and for value. En. March 21, 1872. Gal. Rep. Git. 125, 360. See sec. 19, ante. m dlilEift LIKNS. $§ ^04^-3052 § 3049. Lien of seller of personal property. One who sells personal property has a special lien thereon, depend- ent 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. En. March 21, 1872. Gal. Rep. Cit. 77, 144; 94, 17; 1%, 445; 121, 246; 143, 438. See sec. 3002, ante. § 3050. Purchaser's lien on 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. En. March 21, 1872. Cal. Rep. Cit. 87, 55; 103, 289; 103, 293; 113, 664; 125, 360. § 3051. Lien on personal property for service 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 protec- tion, improvement, safekeeping, 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; 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 proprietors and persons conducting a laundry business have a general lien, dependent on pos- session; upon all personal property in their hands belong- ing to a customer, for the balance due them from such customer for laundry work. En. March 21, 1872. Am'd. 1877-8, 89; 1900-01, 270. Cal. Rep. Cit. 53, 353; 100, 410; 121, 9. Carriers' lien: Sees. 2144, 2191. § 3052. Liens on personal property. 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. If not paid within two months after the work is done, the person may proceed to sell the property at public auction, by §§ 2053-3057 OTHER LIEiCS. m\ giving ten days' public notice of the sale by advertising In some newspaper published in the county in which the work was done; or, if there be no newspaper published in the county, then by posting up notices of the sale in three of the most public places in the town where the work was done, for ten days previous to the sale. The pro- ceeds of the sale must be applied to the discharge of the lien and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof. En. March 21. 1872. Cal. Rep. Cit. 92, 658; 121, 9. Lien in favor of owner of propagating animal: See post, Appendix, title Liens. § 3053. Lien of factor. A factor has a general lien, de- pendent 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. En. March 21, 1872. Power of pledging: See sec. 2991, ante. Factors' enforcement of lien: Ante, sec. 2027. Commission merchant making advances may sell prop- erty, when: See Pol. Code, sec. 3156. § 3054. Banker's Hen. A banker has a general lien, de- pendent 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. Bn. March 21, 1872. Cal. Rep. Clt 63, 364. § 3055. Shipmaster's lien. The master of a ship has a general lien, independent of possession, upon the ship •and freigiitage, for advances necessarily made or liabili- ties necessarily incurred by him for the benefit of the sh^lp, but has no lien for his wages. En. March 21, 1872. § 3056. Seamen's lien. 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. En. March 21, 1872. § 3057. Officers' lien. An officer who levies an attach- ment or execution upon personal property acquires a special lien, dependent on possession, upon such property which authorizes him to hold it until the process is dis- charged or satisfied, or a judicial sale of the property is had. En. March 21, 1872. 6S5 ' OTHteR LIENS. §§ 305il-3ot 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 the lien, and the compensation allowed by section 3336 for loss of time and expenses. En. March 21, 1872. Cal. Rep. Cit. 71, 70; 71, 71; 91, 122; 126, 290; ilS, 226. Damage for conversion of personalty, generally: Sec. 3336. Levy o^ mortgaged chattel: See, as to duty of officer, ante, sec. 2969. § 3339. Seduction. The damages for seduction rest in the sound discretion of the jury. En. March 21, 1872. 629 MEASUHE OF DAMAGES. J§ 3340, 3341 Seduction, action by unmarried female: Code Civ. Proc, sec. 374. Seduction, actions by parent or guardian: Coda Civ. Proc, sec. 375. § 3340. Injuries to animals. For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given. En. March 21, 1872. Cal. Rep. Cit 93, 394. Dogs are property: Pen. Code, sec. 491; injury to: Pen. Code, sec. 597. Exemplary damages, generally: See sec. 3294. § 3341. Same. The owner, possessor, or harborer of any dog or other animal, that shall kill, worry, 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 bo killing such dog or dogs, or other animal. En. Stats. 1883, 283. Am'd. 1903, 54. Cal. Rep. Cit. Subd. 2—80, 548. §§ 3344-3346a MEASURE OF DAMAGES. «» ARTICLE III. PENAL DAMAGES. § 3344. Flallure to quit, after notice. § 3345. Tenant willfully holding over. § 334*6. Injuries to trees, etc. § 3346a. Damages for firing wocds. § 3347. Injuries inflicted in a duel. § 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 no- tice, he must pay to the landlord treble rent during the time he continues in possession after such notice. En. March 21, 1872. Cal. Rep. Cit. 125, 566. § 3345. Tenant willfully 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 time he continues in possession after such notice. En. March 21, 1872. Cal. Rep. Cit. 125, 566. Damages for unlawful detainer: See Code Civ. Proc, sees. 735, 1174 et seq. § 3346. Injuries to trees, etc. For wrongful injuries 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 detri- ment. En. March 21, 1872. Cal. Rep. Cit 108, 207; 139, 560. Damages for cutting down and carrying away trees: See Code Civ. Proc, sec. 733. § 3346a. Damages for firing woods. Every person negli- gently setting fire to his own woods, or negligently suffer- ing any fire to extend beyond his own land, is liable in treble damages to the party injured. En. Stats. 1905, 621. The new section Incorporates into this Code the principle now declared In section S344 of the Political Code.— Code Commissioner's Note. 631 MEASURE OF DAI CAGES. §§ 3347-3351 § 3347. Injuries Inflicted In a duel. If any person 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 disabled, 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 de- termined by the court. En. March 21, 1872. Duels and challenges: See Pen. Code, sees. 225-282. § 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 permanently disabled. En. March 21, 1872. ARTICLE IV. GEISTERAL 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 otherg. § 3358. Limitation of damages. § 3359. Damages to be reasonable. § 3360. Nominal damages. § 3353. Value, how estimated In favor of seller. In estimating damages, the value of 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 sucU time after the breach of the contract as would have suflSced, with reasonable diligence, for the seller to effect a resale. En. March 21, 1872. Cal. Rep. Cit. 94, 18; 106, 446; 140, 632. § 3354. Value, how estimated In favor of buyer. In estimating damages, excepted as provided by sections 3355 and 3356, the value of property, to a buyer or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded as would suflSce, with reasonable diligence, for him to make such a purchase. En. March 21, 1872. Cal. Rep. Cit. 67, 479; 91, 559. §§ 3355-3360 MEASURE OF DAMAGES. 632 § 3355. Property of peculiar value. Where certain prop- erty has a peculiar value to a person recovering damages for deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof, before incuning a liability to damages in respect thereof, or against a willful wrongdoer. En. March 21, 1872. § 3356. Value of thing 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. En. March 21, 1872. Am'd. 1873-4, .^66. § 3357. Damages allowed in this chapter, exclusive of others. The damages prescribed by this chapter are ex- clusive of exemplary damages and interest, except where those are expressly mentioned. En. March 21, 1872. Gal. Rep. Cit. 106, 447. Exemplary damages: Ante, sec. 3294. Interest: Ante, sees. 3287-3290. § 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 an Exemplary Damages and Penal Damages, and in sections 3319, 3339, and 3340. En. March 21, 1872. Gal. Rep. Cit. 90, 520. Exemplary damages: Ante, sec. 3294. Penal damages: Ante, sees. 3344-3348. § 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. En. March 21, 1872. Liquidated damages and penalty: See ante, sees. 1670, 1671. § 3360. Nominal da^nages. When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages. En. March 21, 1872. Cal. Rep. Cit. 123, 431; 139, 520. GENERAL PRINCIPLES. §§ 3366, 336? TITLE III. SPECIFIC AND PREVENTIVE RELIEF. Chapter I. General Principles, §§ 3366-3369. 11. Specific Relief, §§ 3375-3414. 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. En. March 21, 1872. Am'd. 1905, 622. The change consists in the substitution of the words "as provided by the laws of this state," in place of the words "in the cases specified in this title and in no others." The purpose is to enlarge the scope of the section.— Code Commissioner's Note. Cal. Rep. Cit. 71, 69; 110, 642; 117, 380; 117, 381; 139, 474. Possession of real property: Post, sees. 3375 et seq. Possession of personal property: Post, sees. 3379 et seq. Specific performance of obligations: Post, sees. 3384 et seq. Revision of contracts: Post, sees. 3399 et seq. Rescission of contracts: Ante, sees. 1688 et seq.; post, sees. 3406 et seq. Cancellation of instruments: Post, sees. 3412 et seq. Injunctions: See post, sees. 3420 et seq. § 3367. Specific relief, how given. Specific relief is given : 1. By taking possession of a thing and delivering it to a claimant; 2. By conxpeliing a party himself to do that which ougnt to be done; or, 3. By declaring and determining the rights of parties, otherwise than by an award of damages. En. March 21, 1872. Qal. Rep. Cit. Subd. 2—142, 46,, §§ 3368-3375 SPECIFIC RELIEF. eS4 Sec sees. 1084-1097, writ of mandate, Code Civ. Proc; see, also, titles "Lien," "Contesting Elections," "Discliarge of Persons Imprisoned on Civil Process," "Forcible Entry and Detainer," "Proceedings Supplementary to Execution," etc.. Code Civ. Proc. See post, sees. 3375 et seq., for classification of the in- stances in which specific relief is given. § 3368. Preventive relief, how given. Preventive reliet' is given by prohibiting a party from doing that which ought not to be done. En. March 21, 1872. Injunction: See sees. 525-533, Code Civ. Proc. Prohibition: See sees. 1102-1105. Code Civ. Proc. Preventive relief generally: See post, sees. 3420 et seq. While section 3420 says that "preventive relief is granted by injunction, provisional or final," the code commissioners say, citing that section, that "the Code of Civil Procedure provides other remedies," and refers to writs of prohibition, certiorari, and proceedings for contempt. Certiorari: See sees. 1067 et seq., Code Civ. Proc. Contempt: See sees. 1209-1222, Code Civ. Proc. § 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 penalty for forfeiture in any case. En, March 21, 1872. Cal. Rep. Cit. 138, 665. CHAPTER II. SPECIFIC RELIEF. Article I. Possession of Real Property, § 3375. II, Possession of Personal Property, §§ 3379-3380. III. Specific Performance of Obligations, §§ 3384-33SK. IV. Revision of Contracts, §§ 3399-3402. V. Rescission of Contracts, §§ 3406-3408. VI. Cancellation of Instruments, §§ 3412-3414. ARTICLE I. POSSESSION OF REAL PROPERTY. § 3375. Judgrment for possession or title. § 3375. Judgment for possession or title. A person en- titled to specific real property, by reason either of a perfected title or of a claim to title which ought to be perfected, may recover the same in the. manner prescribed 635 SPECIFIC RELIEF. §§ 337iJ, 33») by the Code of Civil Procedure, either by a judgment for its possession, to be executed by the sheriff, or by a judg- ment requiring the other party to perfect the title and to deliver possession of the property. En. March 21, 1872. Actions concerning real estate: See Code Civ. Proc, sees. 738-748. Writ of restitution: See Code Civ. Proc, sec. 957. Specific enforcement of contract to convey realty: See post, sees. 3384 et seq. ABTICLB II. POSSESSION OF PERSONAL PROPE^ITY. § 3379. Judgment for delivery. § 3380. Specific delivery. § 3379. Judgment 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. En. March 21, 1872. Claim and delivery: Cotie Civ. Proc., sees. 509-520. Breach of agreement to transfer personalty may be com- pensated in -damages: Post, sec. 3387. § 3380. Specific delivery. Any person having the pos- session or control of a particular article of personal prop- erty, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession. En. March 21, 1872. Am'd. 1873-4, 266. Breach of agreement to transfer personalty: See post, sec. 3387. ARTICLE III. SPECIFIC PERFORMANCE OF OBLIGATIONS. § 3384. Specific performance. § 3385. Remedy mutual. (Repealed.) I 3386. No remedy unless mutual. § 3387. Distinction between real and personal property. § 3388. Contract signed by one party only may be enforced by other. § 3b8"J. LiQuioation of dan^ages not a bar to specific performance. § 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. Speciflc 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 §§ 3384-3S89 SPECIFIC RELIEF. 636 § 3384. Specific performance. Except as otherwise pro- vided in this article, specific performance of an obligation may be compelled. PJn. March 21, 1872. Am'd. 1873-4, 266. Cal. Rep. Cit. 110, G41; 110, 642; 135, 260. See post, sees. 3390 and 3392. Specifically enforcing revised contract: See post. sec. 3402. § 3385. Remedy mutual. (Repealed.) En. March 21, 1872. Rep. 1873-4, 267. Cal. Rep. Cit. 110, 642. § 3386. No remedy unless mutual. 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. En. March 21, 1872. Cal. Rep. Cit. 91, 90; 110, 642; 142, 346; 144, 538; 147,303. Performance by parties seeking execution: Compare with post, sec. 3392. § 3387. Distinction between real and personal property. 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 agree- ment to transfer personal property can be thus relieved. En. March 21, 1872. • Cal. Rep. Cit. 123, 6; 123, 9; 123, 11; 135, 261; 135, 262. § 3388. Contract signed by one party only may be en- forced by other. A party who has signed a written con- tract may be compelled specifically to perform it, though the other party has not signed it, if the latter has per- formed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance. En. March 21, 1872. Cal. Rep. Cit. 146, 288. § 3389. Liquidation of damages not a bar to specific per- formance. A contract otherwise proper to be specifically enforced may be thus enforced, though a penalty is im- posed, or the damages are liquidated for its oreach, and the party in default is willing to pay the same. En. March 21, 1872. Cal. Rep. Cit. 123, 6; 123, 9; 123, 11; 135, 261. 63t SPECrP*iC RfiLLSP*. §§ 3390-3392 § 3390. What cannot be specifically enforced. The fol- lowing 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 agreemei 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. En. March 21, 1872. Cal. Rep. Cit 88, 249; 130, 530; 136, 611. Subd. 1—119, 38; 130, 529; 140, 497. Subd. 6—122, 348. Subd. 6— 121, 398. § 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 consixieration 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 becoioae due under the contract, or by any promise of such party which has not been substantially fulfilled; or, 4. If his assent was given under the influence of mistake, misapprehension, or surprise, except that where the con- tract provides for compensation in case of mistaKe, a mis- take within the scope of such provision may be compen- sated for, and the contract specifically enforced in other respects, if proper to be so enforced. En. March 21, 1872. Cal. Rep. Cit. 74, 563; 77, 115; 77, 116; 124, 494; 129, 287. Subti. 1—123, 451; 128, 128; 129, 287; 135, 261. Subd. 2—128, 128; 134, 171; 135, 263; 142, 467; 144, 535. § 3392. What parties cannot have specific performance in tiicir lavor. Specific periormance cannot 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 perform- §§ 3393-3400 SPECIB^C RELIEF. ©S ance may be compelled, upon full compensation being made for the default. En. March 21, 1872. § 3393. Specific performance not required wlien oppres- sive. (Repealed.) En. M^rch 21, 1872. Rep. 1873-4, 267. § 3394. Agreement to sell property by one who has no title. An agreement for the sale of property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt. En. March 21, 1872 . § 3395. Relief against parties claiming under person bound to perform. Whenever an obligation in respect to real property would be specifically enforced against a par- ticular person, it may be in like manner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or en- cumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by conveying all his estate to the person entitled to enforce the obliga. tion. En. March 21, 1872. Cal. Rep. Git. 122, 664; 136, 143. ARTICLE IV. REVISION OF CONTRACTS. § 3399. When contract may be revised. § 3400. Presumption as to intent of parties. § 3401. Principles of reWsion. § 3402. Enforcement of revised contract. § 3399. When contract may be revised. When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the Intention 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. En. March 21, 1872. Gal Rep. Git. 65, 281; 68, 616; 83, 158; 85, 502; 86, 340; *88 209; 88, 212; 88, 213; 112, 352; 120, 69; 123, 330; 132, 584; 137, 75; 137, 93; 137, 458; 138, 115; 144, 454. Revised to express intention: Post, sec. 3401. § 3400. Presumption as to intent of parties. For the purpose of revising a contract, it must be presumed that t39 SPECIFIC RELIEF. §§ 3401-3407 all the parties thereto intended to make au equitable and conscientious agreement. En. March 21, 1872. Cal. Rep. Cit. 132, 584. § 3401. Principles of revision. In revising a written in- strument, the court may inquire what the instrument was intended to n^;ean, 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. En. March 21, 1872. Cal. Rep. Cit. 85, 501; 132, 584. § 3402. Enforcement of revised contract. A contract may be first revised and then specifically enforced. En. March 21. 1872. Cal. Rep. Cit 132, 584; 137, 75; 137, 45«. ARTICLE V. RESCISSION OF CONTRACTS. § 3406. When rescission may be adjTktsed. § 3407. Rescission for mistake. § 3408. Court may require party rescinding to do equity. § 3406. When rescission may be adjudged. The rescis- sion of a written contract may be adjudged, on the appli- cation of a party aggrieved: 1. In any of the cases mentioned in section 1689; or, 2. Where the contract is unlawful, for causes not ap- parent 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. En. March 21, 1872. Cal. Rep. Cit. 86. 251; 98, 499; 98, 502; 120, 511; 141, 63; 147, 743. Subd. 1—133, 443; 138, 672. Rescission of contracts by party thereto: Ante, sec 1689. Rescission against consent, how affected: Ante, sec. 1691. Cancellation of instruments: See post, sees. 3412 et seq. Rescission, bow effected: See ante, sec. 1691. § 3407. Rescission for mistake. Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same §§8408-3414 SPECIFIC RELIEF. 640 position as if the contract had not been made. En. March 21, 1872. Cal. Rep. Cit. 94, 58; 98. 499; 109, 426; 114, 168; 120. 511; 124, 268; 146, 3i#0. Placing party in statu quo: Ante, sec. 1691. § 3408. Court may require 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. En. March 21, 1872. Cal. Rep. Cit 94, 58; 98, 499; 98, 502; 120, 5ii; 123, 378; 146, 390; 147, 744. ARTICLE VI. CANCELLATION OF INSTRUMENTa § 3412. When cancellation may be ordered. § 3413. Instrument obviously void. § 3414. Cancellation in part. § 3412. When cancellation 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. En. March 21, 1872. Cal. Rep. Cit. 59, 197; 79, 445; 83, 238; 102, 631; 126, 474; 132, 697. Rescission of contracts: See ante, sees. 1688 et seq., 3406 et seq. Removing cloud on title: See sec. 788, Code Civ. Proc. Cancellation and alteration of instruments by parties thereto: See ante, sees. 1697 et seq. § 3413. Instrument obviously 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 causing injury, within the provisions of the last section. En. March 21, 1872. Cal. Rep. Cit. 55, 566; 79, 445. § 3414. Cancellation In part. Where an instrument is evidence of different rights or obligations, it may be can- celed in part, and allowed to stand for the residue. En. March 21, 1872. Cal. Rep. Cit. 55. 566; 86, 251,. FRKVENTIVE RELIEF. |{ 8420-«422 X) lO "S «'> }» T- ^ CM C. C, 1906, new o. SS)QJ d § 3415. An action may be maintained by any person in- terested in any private document or instrument in writing, which has been lost, destroyed or damaged by conflagra- tion or other public calamity, to prove, establish, compel the re-issuance, re-execution, and re-acknowledgment of such document or instrument. If such document or instrument be a negotiable instrument, the court must compel the per- son in whose favor it is drawn to give a bond executed by himself and two sufficient sureties to indemnify the person re-issuing, re-executing, or re-acknowledging the same against any lawful claim thereon. [In effect June 18, 1906.] are regulated by the Code of Civil Procedure. En. March 21, 1872. Provisional injunctions: See Code Civ. Proc, sees. 525- 533. § 3422. Injunction, when allowed. Except where other- wise provided by this title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: 1. Where pecuniary compensation would not afford ade- quate relief; 2. Where it would be extremely diflGlcult to ascertain the amount of compensation which would afford adequate relief; 3. Where the restraint is necessary to prevent a multi- plicity of judicial proceedings; or, 4. Where the obligation arises from a trust. En. March 21, 1872. Cal. Rep. Cit. 64, 473; 113, 276; 117, 381. Subd. 3—117, 380. § 3423. Injunction, when not allowed. An injunction cannot be granted: 1. To stay a judicial proceeding pending at the com- mencement of the action in which the injunction is de- manded, unless such restraint is necessary to prevent a multiplicity of such proceedings. §§3408-3414 SPECIFIC BELIEF. 640 position as if tlie contract ha'^ ^^* ' ,inaPKNt)lX. mechanic institutes, and other associations for the eii- tension and promotion of trade and commerce, or the ad- vancement, protection, and improvement of the mechanic arts and sciences, may be formed and organized according to the provisions of this act, and such corporations and the members thereof shall be subject to the liabilities herein imposed, and to none other. Certificate of incorporation. Sec. 2. Any twenty or more persons who may desire to form a corporation for either of the purposes specified in the preceding section shall make, sign, and acknowledge, before some officer competent to take acknowledgment of deeds, and file in the office of the county clerk of the county in which the principal place of business of tne company is intended to be located, and a certified copy thereof in the office of the secretary of state, a certificate in writing, in which shall be stated the corporate name of the corporation, the object for which the corporation shall be formed, the time of its existence, not to exceed fifty years, and the name of the city or town, and county, in which the principal place of business of the corporation is to be located. Certified copy shall be evidence. Sec. 3. A copy of any certificate of incorporation filed in pursuance of this act, and certified by the county clerk of the county in which it is filed, or his deputy, or by the secretary of state, shall be received in all courts, actions, proceedings and places, as presumptive evidence of the facts therein stated. Corporation — Rights and powers. Sec. 4. When the certificate provided for in section two of this act shall have been filed as therein provided, the persons who shall have signed and acknowledged the same, and such persons as shall thereafter become their asso- ciates or successors, shall be a body politic and corporate, and by their corporate name have succession for the period limited and power: 1. To sue and be sued in any court; 2. To make and use a common seal, and to alter the same at pleasure; 3. To lease, purchase, hold, sell, mortgage, convey In CHAMBERS OF COMMERCE. 691 trust, convey, release from trust or mortgage, such real and personal estate as hereinafter provided in this act; 4. To elect or appoint such officers, agents, and servants OS the business of the corporation shall require; 5. To make by-laws, not inconsistent with the laws of this state, providing for the organization of the corpora- tion and the management of its affairs. Stock and certificates. Sec. 5. Corporations formed under this act may have a capital stock, and may issue certificates to represent shares of such capital stock; provided, that tne certificate directed in the second section of this act to be executed and filed shall contain a statement of the amount of such capital stock and the number of shares into which it is divided; and provided, further, that the ri2:hts and priv- ileges to be accorded to stockholders, as distinct from those to be accorded to members at large of the corpora- tion, and the obligations to be imposed upon stockholders in the same relation, shall be fixed and established in the by-laws of each of such corporations. Trustees, etc. Sec. 6. Corporations formed under this act may confer upon % board of trustees or directors, or upon a body to be styled the executive committee of the corporation, the right to exercise all or any portion of the corporate pow- ers of the corporation; provided, that the certificate di- rected by the second section of tnis act to be executed and filed in those cases in which the right to exercise the corporate powers is confined to a board of trustees or directors, or to a body to be styled the executive commit- tee of the corporation, shall state the fact, and also whether the right is limited or otherwise; and in such corporations the said certificate shall also state the num- ber of such trustees or directors, or committee, and the names of those who shall have been selected to manage the affairs of the corporations for the first six months. Real and "p*>rsonal estate. Sec. 7. Corporations formed under the provisions of this act shall be capable in law to lease, purchase, have, hold, use, take possession of, and enjoy, in fee simple or otherwise, any personal or real estate within this state tM APPENDIX. necessary for the uses and purposes of such corporation, and the same to sell, lease, deed in trust, alien, and dis- pose of at their pleasure. All real estate owned by the corporation shall be held in the liame of the, same, and all conveyances made by such corporation shall be signed by the president and secretary, and attested by the corporate seal; provided, that no corporation formed under this act shall engage in any mercantile, commercial or mechanical business. [Amendment approved March 10, 1885; Statutes and Amendments 1885, 76; took effect from passage; re- pealed conflicting acts.] See note under sec. 12, post. [Act to legalize defective acknowledgments taken under this act: See ante, Appendix, title Acknowledgments.] By-laws. Sec. 8. The by-laws of all corporations formed under the provisions of this act without capital stock shall pre- scribe how members of the corporation shall be admitted, and how expelled, and how officers, agents, and servants shall be elected or appointed; and such provisions in the by-laws of any such corporation shall have full force and effect as between private parties and said corporation. Meetings. Sec. 9. Corporations formed under the provisions of this act shall determine by their by-laws the manner of calling D.^6 conducting their meetings, *he number of members that shall constitute a quorum, the manner of levying and collecting assessments, the officers of the same, and the manner of their election or appointment, and their tenure of office; and may prescribe suitable pen- alties for the violation of their by-laws, not exceeding in any ca?<=* nnr hundred dollars for any one of'^^nse. Power to levy assessments. Sec. 10. Corporations formea under the provisions of this act having no board of trustees, or directors, or exec- utive committee, shall have power to levy and collect from the members thereof, for the purpose of paying the proper and legal expenses of such corporation, assessments In the manner which may be prescribed by the by-laws of such corpora f ion, and not otherwise. CHAMBERS OF COMMERCE. iW Existing corporations may take benefit of this act. Sec. 11. Any existing corporation, association, or insti- tution formed for either of the purposes contemplated by this act, may, by a vote of a majority of the members voting at a meeting called specially for the purpose, be- come entitled to the benefit of this act on filing the certifi- cate required by this act; provided, a notice of the meet- ing a^M UF object shall be published in a paper of general circulation in the county in which the principal place of businc^ n^' such corporation, association, or institution is located, for at least ten days nrovious to the day on which such meeting is to be held; and provided further, that the certificate i.«rp^n provided to be filed shall be signed and acknowleffyed by at least five of the members of such corporation, association, or institution, and contain a list of Ihe members who desire to become members of the corporation. And upon the filing of such certificate as provided by this act, the persons signing and acknowledg- ing the same, and those named therein, and such persons as shall thereafter become their associates or successors, shall be a body politic and corporate, with all the powers and privileges conferred by tuis act, and shall thereupon succeed and become entitled to all the rights, franchises, and property of such corporation, association, or institu- tion. Effect Sec. 12. This act shall be in force from and aftor its passage; and all corporations formed under it are hereby exempted from the operation of all laws and parts of laws inconsizte"^"^ with its provisions. Section 1 of the above act contained a proviso origi- nally limiting the amount of realty that could be held by incorporstfons under this statute to two hundred and fifty thousand dollars. This section was amended in 1868 by an act approved January 14, 1868, enlarging the amount to three hundred and fifty thousand dollars. The amend- ment of 1885 removes the iimit altogether. APPENDIX, CO-OPERATIVE ASSOClAflONS. An act to provide for incorporation, operation, and man- agement of co-operative associatons. [Approved March 27, 1895; Stats. 1895, 221.] § 1. How forme'd. § 2. * Rights and UabilitleR of member*. § 3. Articles of association. § 4. By-laws, meetings, elections. § 5. By-laws to be recorded. § 6. Property is subject to execution. § 7. Business may be changed. § 8. Profits, how divided. § 9. Powers of associations. § 10. Associations may be consolidated. § 11. Associations may 03 dissolved. I 12. Rights of attorney general to bring «ult. § 18. Act to be liberally construed. The people of the state of California, represented in senate and assembly, do enact as follows: Section 1. It shall be lawful for five or more persons to form a co-operative association for the purpose of trans- acting any lawful business. Such associations shall not have or issue any capital stock, but shall issue member- ship certificates to each member thereof, and such member- ship certificates cannot be assigned so that the transferee thereof can by such transfer become a member of the as- sociation except by the resolution of the board of direct- ors of the association. But by the resolution of consent of the board of directors, such certificates may be trans- ferred, so that the transferee may become a member in lieu of the last former holder thereof. Sec. 2. In such association the rights and interest of all members shall be equal, and no member can have or acquire a greater interest therein than any other mem- ber has. At every election held pursuant to the by-laws each member shall be entitled to cast one vote and no more. All persons above the age of eighteen years, re- gardless of sex, shall be eligible to membership, if other- wise qualified and elected as the by-laws may provide. The by-laws shall provide for the amount of the indebted- ness which such association may incur. And no member shall be responsible individually, or personally liable, for any of the debts or liabilities of the association in excess CO-OPERATIVE ASSOCIATIONS. 695 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 installments which have, be- fore such insolvency, become due from such member to the association, pursuant to its by-laws. Sec. 3. Every association formed under this act shall prepare articles of association, in writing, which shall set forth: 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 ex- ceed fifty years), the number of the directors thereof, and the names and residences of those selected for the first year, the amount which each member is to pay upon ad- mission 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. Such articles of association must be subscribed by the original associates 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 shall be filed in the ofllce of the secretary of state, who shall furnish a certified copy thereof, which shall be filed in the oflice of the county clerk of the county where the principal business of such association is to be transacted; and from the time of such filing m the ofiice of said county clerk the association shall be complete, and shall have and exercise all the powers for which it was formed. Sec. 4. Every association formed under this act must, within forty days after it shall so become an association, adopt a code of by-laws for the government and manage- ment of the association, not inconsistent with this act. A majority of all the associates shall be necessary to the adoption of such by-laws, and the same must be written in a book, and subscribed by the members adopting the same; and the same cannot be amended or modified ex- cept by the vote of a majority of all the members, after notice of the proposed amendment shall be given, as the by-laws may provide. Such association may, by its code of by-laws, provide for the time, place, and manner of calling and conducting its meetings; the number of di- rectors, the time of their election, their term of oflice, the mode and manner of their removal, the mode an-d manner ot filling vacancies in the board caused by deatn, resigna- 696 APPENDIX. tion, removal, or otherwise, and the power and authority of such directors, and how many thereof shall be neces- sary to the exercise of the powers of such directors, which must be at least a majority; the compensation of any of the directors, or of any officer; the number of the oflBlcers, 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; pro- vided, the method shall secure the secrecy of the ballot; the mode and manner of succession of memDership, and the qualifications for membership, and on what conditions, and when membership shall cease, and the mode and man- ner of expulsion of a member subject to the right that an expelled member shall have a right to have the board of di- rectors appraise his interest in the association in either money, property, or labor, as the directors shall deem best, and to have the money, property, or labor so awarded him paid or delivered, or performed within forty days after ex- pulsion; the amount of membership fee, and the dues, in- stallments, or labor which each member shall be required to pay or perform, if any, and the manner of collection or enforcement, and for forfeiting or selling of membership interest for nonpayment or nonperformance; the method, time, and manner of permitting the withdrawal of a mem- ber, if at all, and how his interest shall be ascertained, either in money or property, and within what time the same shall 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 de- sire to succeed to the membership, and whether the same shall be paid to his legal representatives in money, or property, or labor, and within what time the same shall be paid, or delivered, or performed; such other things as may be proper to carry out the purpose for which the as- sociation was formed. Sec. 5. The by-laws and all amendments must be re- corded 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. CO-OPERATIVE ASSOCIATIONS. 691 Sec. 6. The property of such association shall be sub- ject to judgment and execution for the lawful debts of the association. The interest of a member in such association, if sold upon execuyon or any judicial or governmental or- der whatever, cannot authorize the purchaser to have any right except to succeed, as a member in the association, with the consent of the directors, to the rights of the member whose interest is thus sold. If the directors shall 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 asso- ciation, or reissue the share or right to a new member upon proper payment therefor, as the directors may deter- mine. Sec. 7. The purpose of the business may be altered, changed, modified, enlarged, or diminished by a vote of two-thirds of all the members, at a special election to be called for such purpose, of which notice must be given the same as the by-laws shall provide for election of directors. Sec. 8. The by-laws shall provide for the time and man- ner in which profits shall be divided between the mem- bers, and what proportion of the profits, if any, shall be addeRPORATIONS. 709 inviolate all communications confidentially made to it touching the existence, condition, management, and ad- ministration of any trusts confided to it; and no creditor or stockholder of any such corporation shall be entitled to disclosure of any such communication; provided, how- ever, that the president, manager and secretary of such corporation shall be entitled to knowledge of such com- munication; and provided further, that in any suit or proceeding touching the existence, condition, management or administration of such trust, the court wherein the same is pending may require disclosure of any such com- munication. [New section approved March 20, 1903; Stats. 1903, p. 244. In effect on passage.] Sec. 23. The use of the word "trust" in combination or in connection with the word "company," "corporation," "incorporation,** "association," "society," "organization," or "syndicate" is hereby prohibited to all persons, firms, as- sociations, companies or corporations, other than corpora- tions provided for by a certain act of the legislature en- titled: "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 corpora- tions," approved April 6, 1891, and any person, firm, asso- ciation, company or corporation which used the word "trust'* in combination with or in connection with the word "company,** "corporation,** "incorporation,** "associa- tion,** "society,** "organization** or "syndicate** as the name under which business is done or transacted, shall be subject to the provisions of the act last referred to and to the supervision of the bank commissioners as required by the said act. Any person, firm, association, company or cor- poration making use of the word "trust** in combination or in connection with the word "company,** "corporation,** "incorporation,'* "association,** "society,** "organization," or "syndicate" in the manner hereinabove mentioned in the transaction of business and not subject to the provisions of said act an-d the supervision of the bank commissioners as in said act provided shall forfeit for each day the of- fense is committed, the sum of one hundred dollars to be recovered by the bank commissioners of the state of Cal- ifornia in the manner provided by law. [New section; Stats. 1905, 232.] An act to protect stockholders and persons dealing with corporations in this state. [Approved March 29, 1878; 1877-8, 695; Am*d. 1905, 786.] Frauds and misropresentations, penalty for. Section 1. Any superintendent, director, secretary, man- no APPENDIX. ager, agent, or other officer of any corporation formed or existing under the laws of this state, or transacting busi- ness in the same, and any person pretending or holding himself out as such superintendent, director, secretary, manager, agent, or other officer, who shall willfully sub- scribe, sign, indorse, verify, or otherwise assent to the publication, either generally or privately, to the stock- holders or other persons dealing with such corporation, or its stock, any untrue or willfully and fraudulently exag- gerated report, prospectus, account, statement of opera- tions, values, business, profits, expenditures, or prospects, or other paper or document intended to produce or give, or having a tendency to produce or give, to the shares of stock in such corporation a greater value, or less apparent or market value, than they really possess, or with the intention of defrauding any particular person or persons, or the public, or persons generally, shall be deemed guilty of a felony, and on conviction thereof shall be punished by imprisonment in the state prison or a county jail not exceeding two years, or by fine not exceeding five thou- sand dollars, or by both. Sec. 2. All acts or parts of acts in conflict with this act are hereby repealed. An act to authorize corporations to own and Improve the lots an-d houses in which their business is carried on. [Approved April 1, 1876; 1875-6, 653.] May hold lot, etc. Section 1. By unanimous consent of its members or stockholders, any corporation existing under the laws of this state may acquire and hold the lot, and house in which its business is carried on, and may improve the same to any extent required for the convenient transaction of its business. Sec. 2. This act shall take effect immediately. Superseded by Civil Code, sec. 363. An act to provide the manner of execution of deeds by cemetery corporations. [Approved March 26, 1895; Stats. 1895, 75.] The people o the state of California, represented in sen- ate and assembly, do enact as follows: Section 1. All deeds or conveyances executed by ceme- tery associations or incorporations within this state, shall be executed in the name of the corporation or association, CORPORATIONS, tU under the seal thereof, by the president, or vice-president, and secretary thereof. Sec. 2. All acts and parts of acts in conflict with this statute, in so far as they conflict with the same, are here- by repealed. Sec. 3. This act shall take effect and be in force from and after its passage. An act in relation to foreign corporations. [Approved April 1, 1872; Stats. 1871-2, 826. Amended 1899, 111.] Section 1. Every corporation heretofore created by the laws of any other state or foreign country, and doing busi- ness in this state, shall within ninety days after the pas- sage of this act, and any corporation hereafter created by the laws of any other state or foreign country and doing business in this state, within forty days from the time of commencing to do business in this state, designate some person residing in this state, upon whom process issued by authority by or under any law of this state, may be served, and within the time aforesaid shall file such desig- nation in the office of the secretary of state, and a copy of such designation, duly certified to by the secretary of state, shall be suflacient evidence of such appointment and of the due incorporation of such corporation, and it shall be lawful to serve on such person so designated, or in event that no such person is so designated, then on the secretary of state, any process issued as aforesaid. Such service shall be made on such person so designated or the secretary of state, in such manner as shall be prescribed in case of service required to be made on foreign corpora- tions, and such service shall be deemed a valid service thereof on such corporation. [Amendment approved March 17, 1899; Stats. 1899, 111.] Sec. 2. Every corporation created by the laws of any other state or foreign country which shall fail to comply with the provisions of section one of this act shall be de- nied the benefit of the laws of this state limiting the time for the commencement of civil actions, and shall not main- tain or defend any action or proceeding in any court of this state until such corporation shall have complied with the provisions of section one of this act; and in any ac- tion or proceeding instituted against a body styled as a corporation and created by the laws of any other state or foreign country, evidence that such body has acted as a corporation or employed methods usually employed by cor- m APPENDIX. porations, shall be re<;elved by the court in such action or proceeding for the purpose of proving the existence of such corporation; the sufficiency of such evidence shall be determined by the court before whom such action or proceeding is pending with like effect as in other cases; provided, nevertheless, that any corporation which shall have complied with the requirements of section one of the act of which this is amendatory, shall not be required to make or file any further designation of the person upon whom process may be served, but such former designation shall be deemed and taken to be a full compliance with the requirements of this act; provided further, however, that if any such corporation shall withdraw such designa- tion heretofore made, or if the person designated shall die, or remove from the state, then, and in that case such corporation shall within forty -days after such withdrawal make a new designation, or be subject to the provisions and penalties of this act. [Amendment approved March 17, 1899; Stats. 1899, 111.] Sec. 3. Every corporation created by the laws of any other state or foreign country which shall comply with the provisions of section one of this act shall be entitled to the benefit of the laws of this state limiting the time for the commencement of civil actions. [Amendment ap- proved March 17, 1899; Stats. 1899, 111.] An act requiring corporations organized under the laws of another state, territory, or foreign country, to file a certified copy of their articles of incorporation in the office of the secretary of state, and a certified copy thereof, duly certified by the secretary of state of this state, in the office of the county clerk of the county where its principal place of business is located and also where such corporation owns property, and re- quiring such corporation to pay to the secretary of state the same fees as are j)aid by corporations formed under the laws of the state of California, and providing for a penalty for the violation of the provisions of thin act. [Approved March 8, 1901, p. 108.] § 1. Foreign corporations must file certified copies o£ articles. § 2. Fees. § 3. Penalty for failure to comply. Foreign corporations must file certified copies of articles. Section 1. Corporations organized under the laws of another state, territory, or of a foreign country, which are CORPORATIONS. 713 now doing business in this state, or which shall hereafter enter this state to do business, or maintain an office in his state, shall file in the office of the secretary of state of the state of California a certified copy of their articles of in- corporation, or of their charters or of the statutes or legislatiYe or executive or governmental act creating them in cases where they are created by charters or statutes or legislative or executive or governmental acts, and a certi- fied copy thereof, duly certified by the secretary of state of this state, in the office of the county clerk of the county where its principal place of business is located and also where such corporation owns property. Fees. Sec. 2. For filing and issuing certified copy as required in section one of this act, corporations formed under the laws of another state, or of a territory, or of a foreign coun- try, shall pay the same fees as are paid by corporations formed under the laws of this state. Penalty for failure to comply. Sec. 3. Every foreign corporation amenable to the pro- visions of this act which shall neglect or fail, within ninety, •days from the date of passage of this act, to comply with the conditions of the same as herein provided shall be sub- ject to a fine of not less than five hundred dollars, to be recovered before 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 this act, to report the fact to the gov- ernor, who shall instruct the district attorney of the county wherein such corporation has its principal business, or the attorney general of the state, or both, as soon as practica- ble, to institute proceedings to recover the fine herein provided for, and the amount so recovered must be paid into the state treasury to the credit of the general fund of the state; in addition to which penalty, no foreign cor- poration as above defined which shall fail to comply with this act, can maintain any suit or action, either legal or equitable, in any of the courts of this state upon any de- mand, whether arising out of contract or tort, until it has complied with this act; provided, that any corporation de- scribed in section one of this act, which is now doing business in this state, and which has complied with the act in relation to forei'gn corporations, approved April 714 APPENDIX. first, eighteen hundred and seventy-two, and an act amend- atory thereof, approved March seventeenth, eighteen hun- dred and ninety-nine, is exempted from the provisions of this act. Sec. 4. This act shall take effect and be in force from and after the date of its passage. DEEDS. An act relating to conveyances of real estate. [Approved March 11, 1874; 1873-4, 345.] § 1. Conveyances by persons whose names are changed. § 2. Record of conveyances made by public officers. § 3. Indexing conveyances. Conveyances by persons whose names are changed. Section 1. Any person in whom the title of real estate is vested who shall afterwards, from any cause, have his or her name changed, shall, in any conveyances of said real estate so held, set forth the name in which he or she derived title to said real estate. Record of conveyances made by public officers. Sec. 2. All conveyances of real estate, except patents issued by the state as a party, made by any public officer pursuant to any law of this state, shall, when recorded by the county recorder, be by him alphabetically indexed in the "index of grantors," both in the name of the officer making such sale and in the name of the person owning the property so sold. Indexing of such conveyances. Sec. 3. It is hereby made the duty of all county re- corders to alphabetically index in the "index of grantors," both in the name by which title was acquired and also by which the same was conveyed, all conveyances referred to m section one of this act. Sec. 4. This act shall be in force from and after its passage. FIRE PATROL. FIRE PATROL. An act to confer certain powers upon corporations, organ- ized for the purpose of discovering and preventing fires, and of saving property and human life from conflagration. • [Approved April 1, 1876; 1875-6, 689. Amended 1897, 223.] § 1. Power to equip and employ men as fire patroL § 2. Privileges granted to corps. § 3. Costs an\J expenses of organization. Power to equip and employ men as fire patrol. Section 1. 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, shall have power, at its own proper cost and expense, to maintain a corps of men, with proper ofiicers, equipped with the necessary machinery and apparatus therefor, whose duty it shall be, 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, power and authority is hereby granted such corps to enter any build- ing on fire, or in which property is on fire, or whioh such corps or any oflicer thereof shall deem 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 protect from conflagration or damage by water any property, during and immediately after such fire; provided, however, that nothing in this act shall be so construed as in any degree to lessen, impair, or interfere with the pow- ers, privileges, duties, or authority of the regular fire de- partment of such municipality; and provided further, that no act of such corps shall justify any owner of any build- ing or property in abandoning such building or property. Privileges granted to fire patrol corps. Sec. 2. Such corporation, with its oflicers and corps, when running to a fire, shall, with its horses, vehicles, and salvage apparatus, have the same right of way as is or may be bestowed by any ordinance of the municipality Hi APPENDIX. or law of this state upon the re^lar fire department of the municipality wherein such corporation is acting; provided, that the rights of such fire department shall always be paramount to the rights of said corporation. All ordinances now existing or which may hereafter 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 willfully or care- lessly 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 will- fully or carelessly injuring any animal or property of said fire department, shall be equally applicable to any person or persons willfully or carelessly obstructing the progress of the apparatus of such corporation while going to a fire, and to any person or persons who shall willfully or care- lessly injure any animal or property of such corporation; and said laws and ordinances, and their penalties, may be enforced in the same courts and in the same manner, and with equal force and effect, as in the case of the fire depart- ment. Costs and expenses of organization. Sec. 3. In the month of July, eighteen hundred and nine- ty-seven, and in the month of July in every year there- after, there shall be held a meeting of all corporations heretofore created, or that may be hereafter created, under this act, of which ten days' previous notice shall be in- serted in at least one daily newspaper published in the municipality where said corporation is organized or estab- lished, at which meeting each insurance company, corpora- tion, association, underwriter, agent, person, or persons do- ing a fire insurance business in said municipality, whether members of said corporation or not, shall have a right to be represented at such meeting, and shall be entitled to one vote. A majority of the whole number so represented shall have power to decide upon the question of sustaining the fire patrol organized by corporations heretofore created, or that may be hereafter created, under this act, and fixing the maximum amount of expenses which shall be incurred therefor during the fiscal year next to ensue, which FIKE PATROL. 717 amount shall in no case exceed two per centum of the aggregate premiums returned as received, as provided in this section, and the whole of such amount, or so much thereof as may be necessary, may be assessed upon all insurance companies, corporations, associations, under- writers, agents, person, 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 such assessment shall be col- lectible, by and in the name of said corporation, in any court of law in the state of California having jurisdiction, in such manner and at such time or times as said corpora- tion may determine. In order to provide for the payment of persons employed by said corporation, and to maintain suitable rooms, and apparatus for saving life and property contemplated, said corporation is empowered to require a statement to be furnished semi-annually, by all insurance companies, corporations, associations, underwriters, agents, or persons, of the aggregate amount of premiums received for insuring property in the municipality where said cor- poration is organized or established, for and during the six months next preceding the first day of July and the first day of January of each year, which statement shall be sworn to by the president or secretary of the corpora- tion or association, or by the agent or person so acting or effecting such insurance in said municipality, and shall be handed to the secretary of said corporation heretofore created or hereafter to be created under the provision of this act within ten days after the first day of July and the first day of January of each year. Said secretary shall, within the ten days aforesaid, by written or printed de- mand signed by him, require from every insurance com- pany corporation, association, underwriter, agent, or per- sons engaged in the business of fire insurance in the mii- nicinality where said corporation is organized or estao- Ushed the statement hereinbefore provided for. Such de- iS may be delivered personally at the office of such Ssuran^e company, corporation, association underwriter S or person within said municipality, and every officer ^ such insurance company, corporation, association and eve?y such underwriter, agent or person who shall for mlln days after said demand, neglect to render the state- 718 APPENDIX. ment herein provided for, shall forfeit fifty dollars for the use of said corporation, and he shall also forfeit for its use twenty-five dollars in addition for every day he shall so neglect after the expiration of the said fifteen days, and such additional penalty may be computed and collected up to the time of the trial of any action brought for the recovery thereof. The penalty herein p'-ovided for may be sued for and collected, with costs, in any court of law within the state of California having Jurisdiction, by and in the name of said corporation. [Amendment ap- proved March 29, 1897; Stats. 1897, p. 223.] GUARDIANS. Act providing for appointment of guardians of children in orphan asylums: See post, title Infancy. HOMESTEADS. An act to enable certain parties therein named to alienate or encumber homesteads. [Approved March 25, 1874; 1873-4, 582.] S 1. Alienation of. § 2. Notice of application. S 8. Petition. § 4. Order and effect. i B. Fees. Alienation of homestead. Section 1. In case of a homestead, If either the husband or wife shall become hopelessly insane, upon application of the husband or wife, not insane, to the probate court of the county in which said homestead is situated, and up- on due proof of such insanity, the court may make an or- der permitting the husband or wife, not insane, to sell and convey, or mortgage, such homestead. Notice of application. Sec. 2. Notice of the application for such order shall b« given by publication of the same, In a newspaper pub- HOMESTEADS. tl9 llshed in the county in which such homestead is situated, if there be a newspaper published therein, once each week for three successive weeks, prior to the hearing of such application, and a copy of such notice shall also be served upon the nearest male relative of such insane hus- band or wife, resident in this state, at least three weeks prior to such application; and in case there be no such male relative known to the applicant, a copy of such notice shall be served upon the public administrator of the county in which such homestead is situated; and it is hereby made the duty of such public administrator, upon being served with a copy of such notice, to appear in court and see that such application is made in good faith, and that the proceedings thereon are fairly conducted. Petition. Sec. 3. Thirty days before the hearing of any applica- tion under the provisions of this act, the applicant shall present and file in the court in which such application is to be heard a petition for the order mentioned in the first section of this act, subscribed and sworn to by the appli- cant, setting forth the name and age of the insane husband or wife; the number, age, and sex of the children of such insane husband or wife; a description of the premises constituting the homestead; the value of the same; the county in which, it is situated; and such facts in addition to that of the insanity of the husband or wife relating to the circumstances and necessities of the applicant and his or her family as he or she may rely upon in support of the petition. Order and effect. Sec. 4. If the court shall make the order provided for in the first section of this act, the same shall be entered upon the minutes of the court, and thereafter any sale, conveyance, or mortgage made in pursuance of such order shall be as valid and effectual as if the property affected thereby was the absolute property of the person making such sale, conveyance, or mortgage, in fee simple. Fees. Sec. 5. For all services rendered by any public admin- istrator under the provisions of this act he shall be allowed a fee not exceeding twenty dollars, to be fixed by the court, wo APPENDIX. and the same shall he taxed as costs against the person making application for the order herein provided for. Sec. 6. All acts and parts of acts in conflict with the provisions of this act are hereby repealed. Sec. 7. This act shall take effect and be in force from -and after Its passage. An act supplementary to an act entitled "An act to au- thorize the formation of corporations to provide the memhers thereof with homesteads, or lots of land suit- able for homesteads," approved May twentieth, eight- een hundred and sixty-one. [Approved March 23, 1874; 1873-4, 525.] § 1. Extension of time for homestead corporations. § 2. How existence continued. Extension of time for homestead corporations. Section 1. Any corporation formed under the act to which this act is supplemental, whose period of existence is not stated in its articles of incorporation to be ten years, may continue its corporate existence for ten years from the date of filing its articles of incorporation, upon complying with the provisions of this act How existence continued. Sec. 2. Any such corporation existing on the first day of January, eighteen hundred and seventy-four, may, at any time before its period of existence, as stated in its articles of incorporation, shall expire, continue its exist- ence, as stated in section one of this act, by a majority vote of its board of trustees at any meeting of such board, or by a vote of a majority of the stockholders, as the board of trustees may elect. A certificate of the action of the directors, signed by them and their secretary, when the election is made by their vote, or upon the written con- sent of the stockholders or members, or a certificate of the proceedings of the meeting of the stockholders or members, when such election is made at any such meeting, signed by the chairman and secretary of the meeting and a majority of the directors, must be filed in the ofllce of the clerk of the county where the original articles of in- corporation are filed, and a certified copy thereof must HOMESTEADS— INFANCY. «1 be filed in the office of the secretary of state; and there- after the corporation shall continue its existence un- der the provisions of this act, and shall possess all the rights and powers, and be subject to all the obligations, restrictions, and limitations prescribed by the act of which this is supplementary. * Sec. 3. This act shall take effect from and after its pas- sage. INFANCY. An act to regulate the hours of labor and employment of minors. [Approved February 8, 1889; 1889, 4.] § 1. Employment of minors. § 2. Age of minor to be recorded. § 3. Notice of hours of labor to be posted. § 4. Violation and penalty. § 5. Duty of commissioner. Employment of minors. Section 1. No minor under the age of eighteen shall be employed in laboring in any manufacturing, mechanical, or mercantile establishment, or other place of labor, more than ten hours in one day, except when it is necessary to make repairs to prevent the interruption of the ordinary running of the machinery, or when a different apportion- ment of the hours of labor is made for the sole purpose of making a shorter day's work for one -day of the week; and in no case shall the hours of labor exceed sixty hours in a week. Age of minor to be recorded. Sec. 2. No child under ten years of age shall be em- ployed in any factory, workshop, or mercantile establish- ment; and every minor under sixteen years of age when so employed shall be recorded by name in a book kept for the purpose, and a certificate (duly verified by his or her parent or guardian, or if the minor shall have no parent or guardian, then by such minor, stating age and place of birth of such minor) shall be kept on file by the em- ployer, which book and which certificate shall be produced by him or his a-gent at the requirement of the commissioner of the bureau of labor statistics. Notice of hours of labor to be posted. Soc. 3. Every person or corporation employing minora ClvU Code-46 t22 APPENDIX. under sixteen years of age in any manufacturing establish- ment shall post, and keep posted, in a conspicuous place in every room where such help is employed, a printed no- tice stating the number of hours per day for each day of the week required of such persons, and in every room where minors under sixteen years of age are employed, a list of their names, with their ages. Violation and penalty. Sec. 4. Any person or corporation that knowingly vio- lates or omits to comply with any of the foregoing pro- visions of this act, or who knowingly employs, or suffers or permits any minor to be employed, in violation thereof, shall, on conviction, be punished by a fine of not less than fifty nor more than two hundred dollars for each and ev- ery offense. Duty of commissioner. Sec. 5. It shall be the duty of the commissioner of the bureau of labor statistics to enforce the provisions of this act. Sec. 6. This act shall take effect and be in force from and after its passage. This act is probably superseded by the following act: An act to regulate the employment, hours of labor, etc., of children, and to prohibit the employment of minors under a certain age. [Approved March 23, 1901; 1901, p. 631.] § 1. Hours of labor of children. § 2. Under twelve must not be employed. § 3. Notice to be posted, what must contain. § 4. Penalty for violation. Hours of labor for children. Section 1. No minor under the age of eighteen shall be employed in laboring in any manufacturing, mechanical or mercantile establishment, or other place of labor, more than nine hours in one day, except when it is necessary to make repairs to prevent the interruption of the ordinary running of the machinery, or when a different apportion- ment of the hours of labor is made for the sole purpose of IKFANCT. TO making a shorter day's work for one day of the week; and in no case shall the hours of labor exceed fifty-four hours in a week. Under twelve years must not be employed. Sec. 2. No chiM under twelve years of age shall be employed in any factory, workshop or mercantile establish- ment, and every minor under sixteen years of age when so epiployed shall be recorded by name in a book kept for the purpose, and a certificate (duly verified by his or her parent or guardian, or if the minor shall have no parent or guard- ian, then by such minor, stating age and place of birth of such minor) shall be kept on 'file by the employer, which book and which certificate shall be produced by him or his agent at the requirement of the commissioner of the bureau of labor statistics. Notice to be posted, what must contain. Sec. 3. Every person or corporation employin'g minors under sixteen years of age in any manufacturing estab- lishment, shall post and keep posted in a conspicuous place in every room where such help is employed, a print- ed notice stating the number of hours per day for each day of the week required of such persons, and in every room where minors under sixteen years of age are em- ployed, a list of their names, with their ages. Penalty for violation. Sec. 4. Any person or cori)oration that knowingly vio- lates or omits to comply with any of the foregoing pro- visions of this act, or who knowingly employs, or suffers or permits any minor to be employed, in violation thereof, shall, on conviction, be punished by a fine of not less than fifty nor more than two hundred dollars, or by imprison- ment of not more than sixty days, or by both such fine and imprisonment, for each and every offense. Sec. 5. This act shall take effect sixty days after its passage. An act to provide for the appointment of guardians of children maintained in any orphans* home or orphan asylum in this state. [Approved March 23, 1893; Stats. 1893, 203.] Section 1. When any orphan or half-orphan has been maintained in any orphans' asylum or orphans' home in 724 APPENDIX. the state of California for more than one year, the man- agers of said home or asylum shall be entitled to the guardianship of such child in preference to any other per- son; proviued, however, that such mana-gers shall not be appointed guardian of a minor child over fourteen years of age without its consent, nor shall this act preclude the court of competent jurisdiction from inquiring into the fitness of such managers for the guardianship of such children; but in exercising the power of the court to ap- point guardians for minors, the managers of the home hav- ing the care of such child for more than one year shall, if there be no special reasons to the contrary in any par- ticular case, be preferred in the guardianship of the person of the child to the parent so leaving the child, without good cause therefor being shown, under the care of said home for the said time. Sec. 2. This act shall take effect immediately. Statute prohibiting use of child for exhibitions, immoral purposes, soliciting alms, etc.: See Penal Code, Appendix, title Infancy. Begging by minor to be restrained: See Penal Code, Ap- pendix, title Infancy. Act for incorporation of societies for prevention of cru- elty to children: See Penal Code, Appendix, title Infancy. Minors not to enter saloon: See Penal Code, Appendix, title Infancy. Act to prevent sale of intoxicants to minor: See Penal Code, Appendix, title Intoxicating Liquors. Child not to be confined with adult charged with crime; See Penal Code, Appendix, title Infancy. INSURANCB. Fire patrol: See ante, p. 715. An act relating to life, health, accident, and annuity or endowment insurance on the assessment plan, and the conduct of the business of such insurance. [Approved March 19, 1891; Stat». 1891, p. 126.] § 1. Construction of contract. § 2. Forir.ation of corporation— I>eposlt — Certificate. § 3. Reincorporation. § 4. Contracts— Liens— Payment*. INSURANCE. m § 5. Reserve Fund— Investments. § 6, Requirements from foreign corporations — Ue^aoB^. § 7. Limitations as to age— Certificate— False statements. § 8. Exemption from attachment. § 9. Annual statement. § 10. Duty of commissioner. § 11. Lapses— Notice of assessm-ftot. § 12. Fees. § 13. Expenses of proeectition. § 14. No application to secret socleti««. Section 1. Every contract whereby a benefit may ac- crue to a party or parties therein named upon the death or physical disability of a person insured thereumder or for the payment of any sums of money dependent in any degree upon the collection of assessments or dues from persons hoi-ding similar contracts shall be deemed a con- tract of mutual insurance upon the assessment plan. Such contracts must show that the liabilities of the insured thereunder are not limited to fixed premiums. Sec. 2. Corporations may be formed under the general laws of this state to carry on the business of mutual in- surance upon the assessment plan, and shall be subject only to the provisions of this act. No such corporations shall issue contracts of insurance until at least two hun- dred (200) persons have applied in writing for member- ship or insurance therein, and have paid to the treasurer of such corporation the sum of five thousand ($5,000) dol- lars. This sum shall 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. Said bonds, or securities, or evidences of such deposit, shall be placed, through the insurance commis- sioner of this state, with the state treasurer, and the prin- cipal sum shall be held in trust for the contract hoMers of such corporation, with the right in the corporation to exchange said bonds, securities, or evidence of bank de- posit for others of like value. Such corporation shall also, as a condition precedent to issuing any contracts of in- surance, obtain the written certificate of the insurance commissioner that it has complied with the requirements of this act; 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 shall the commissioner approve any 726 APPENDIX. name or title so closely resembling another as to mislead the public. No corporation formed hereunder shall have legal existence after one year from the date of its articles, unless its organization has been completed and business commenced; nor shall any corporation or individual solicit, or cause to be solicited, any business, until such corpora- tion shall have complied with the provisions of section six hundred and thirty-three of the Political Code of this state. Sec. 3. Any existing corporation engaged in transact- ing the business of life, health, accident, or endowment insurance on the assessment plan, may reincorporate under the provisions of the Civil Code of this state, and under the provisions of this act; provided, that it shall not be obligatory upon such corporation to reincorporate; and any such existing corporation may continue to exercise all rights, powers, and privileges conferred by this act, the same as if incorporated hereunder. Sec. 4. The contracts of insurance issued by such cor- poration shall specify the sum or sums to be paid upon the happenin-g of the contingency insured against, and when such payments will be made. Unless the contract shall have been invalidated by fraud or by breach of its con- ditions, the corporation shall be obligated to pay the ben- eficiary the amount or amounts specified in its contract at the time or times therein named, and such indebted- ness shall be a lien upon all the property of such cor- poration, with priority over all indebtedness thereafter in- curred, except as hereinafter provided in case of insolv- ency. Failure to make such payment, within thirty days after notice, at the home office, by mail, as provided b}^ law, of final judgment, unless waiver is made by the bene- ficiary, shall constitute a forfeiture of the right to do busi- ness. Sec. 5. Every domestic corporation organized or doing business under this act shall accumulate a reserve or emergency fund, which shall at all times be not less than the largest benefit contracted to be paid by it to any one person. Every existing domestic corporation must ac- cumulate such fund within one year from the date when this act takes effect, and any corporation organized here- under, within one year from the date of its certificate of Incorporation. Such fund, to the extent of the largest INSURANCE. 727 amount contracted to be paid by any such corporation to any one person, shall be so invested and deposited, as provided in section two hereof, with the right in the cor- poration to exchange any such securities for others of equal value. The deposit required by section two of this act shall constitute a part of the reserve required by this section, at the option of such corporation. When any cor- poration doing business hereunder shall discontinue busi- ness, this fund shall be returned to such corporation, or so disposed of as may be determined by the superior court of the county or city and county in which is its prin- cipal place of business. Sec. 6. 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, deposit with the insur- ance commissioner of this state a certified copy of its charter or other instrument required by its home authori- ties; a statement under oath, of its president or secretary, of its business for the preceding year, in such form as may be required by the insurance commissioner of this state; an appointment of a general agent, service upon whom shall bind the corporation; a certificate that for the next preceding twelve months it has paid in full the maximum amount named in its contracts of insurance; a certificate from the proper ofiicer of its state or government that like corporations of this state are legally entitled to do busi- ness in such state or country; copies of its contracts of insurance and applications,^ which must show that the lia- bilities of its members are* not limited to fixed premiums; and 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 reserve 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 corporation was organized. The insurance commissioner shall thereupon issue a license to such corporation to do business in this state. This license must be renewed an- nually, 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 shall be given by the insurance commissioner, by publication 728 APPENDIX. in some newspaper published in the city and county of San Francisco, for two weeks, daily, and no new contracts shall be made by such company in this state. When any other state or country imposes any additional license, fees, taxes, or penalties upon any corporation organized or do- ing business under this act, like license, fees, taxes, or penalties shall be imposed upon corporations of the same kind and their agents of such state or country doing busi- ness in this state. Sec. 7. No corporation doing bnsiness under this act (except accident or casualty corporations) shall issue a contract of insurance upon the life of any person under fifteen years of age, or after he or she has passed his or her sixty-first birthday. Erery such contract of insurance shall be founded upon written application therefor, and (except when the application is for health, accident, or casualty insurance only, or for one hundred dollars life insurance or less) such application shall be accompanied by the report of a reputable physician, containing a de- tailed statement of his examination of the applicant, and showing the applicant to be in good health, and recom- mending the issuance of a contract of insurance. Any solicitor, agent, employee, examining physician, or other person making a false or fraudulent statement to any corporation doing business under this act, with reference to any application for insurance or for the purpose of ob- taining any money or benefit from such corporation, shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less 'than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court; and any person who shall make a false statement of any material fact or thing in a sworn statement as to the death or disability of a con- tract holder in any such corporation, 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, shall be guilty of perjury, and may be proceeded against and punished as provided by the statute of this state in relation to the crime of perjury. Sec. 8. The money, benefit, annuities, endowment, charity, relief, or aid to be paid as provided by the con- rNSURANCE. 729 tracts issued by any corporation doing business under this act shall not be liable to attachment or other process, and shall not 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 benefi- ciary named thereunder. Sec. 9. Every domestic and foreign corporation doing business under this act shall annually, on or before the first day of February, file with the insurance commis- sioner, in such form as he shall prescribe, a statement of its affairs for the year ending on the preceding thirty- first day of December. Tlie insurance commissioner, in person or by duly authorized deputy, shall have the power of examination into the affairs of any domestic corporation doing business or claiming to do business under this act, at any time, in his discretion, and shall make such ex- amination at least once a year. Sec. 10. If the insurance commissioner, after examina- tion of the affairs of a corporation, shall find that such Qorporation is not doing its business in conformity to this act, or that it is doing a fraudulent or unlawful business, or that it is not carrying out its terms of contract, or that it cannot within three months from the date of notice of default pay its obligations, he shall cite the president, sec- retary, manager, or general agent of said corporation, or all of them, to appear before him (stating the time and place), to show cause why the authority of such corpora- tion to do business shall not be revoked; and if they can- not show cause, then he shall report the facts to the at- torney general of this state, who shall commence pro- ceedings in the proper court to restrain said corporation from doing any further business. Sec. 11. No policy or certificate issued by any corpora- tion or association doing business under the provisions of this act shall lapse or be lapsed for the nonpayment 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 postoflice address, -a notice setting forth the amount to be paid, and the time the same is due and payable; and such notice shall be mailed at least fifteen days before the g.sse§sment is due (provided, that such corporations doing 730 APPENDIX. business under this act as collect specific amounts at specific dates, as contained in the contract, shall not be compelled to send such notices), and an aflSdayit 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, shall constitute conclusive evidence of the mailing of such notice. Sec. 12. The fees for filing statements, certificates, or other documents required by this act, or for any service or act of the insurance commissioner, and the penalties for any violation of this act, shall, except as otherwise provided herein, be the same as provided in the laws of this state relating to life insurance companies, and shall be disposed of as provided by such laws. Sec. 13. And for all lawful expenses under this act, or by reason of any of its provisions, in the prosecution of any suit or proceedings, or otherwise, for the enforcement of the provisions of this act, the insurance commissioner must present bills, duly certified by him, and accompanied with vouchers, to the state board of examiners, who must allow the same, and direct payment thereof be made, and the state controller shall draw warrants therefor on the state treasurer for the payment of the same to the insur- ance commissioner, in addition to the ordinary contingent expense, which warrants shall be payable out of the :gen- eral fund. Sec. 14. The provisions of this act shall not apply to secret or fraternal societies, lodges, or councils, which conduct their business and secure membership on the lodge 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 composed only of members of any such society, lodge, or council exclusively. Sec. 15. All acts and parts of acts in confiict with the provisions of this act are hereby repealed. Sec. 16, This act shall take effect immediately. INSURANCE. 781 An act to provide for the incorporation of mutual insur- ance companies, for the insurance of life and health, and against accidents. [Approved April 2, 1866; 1865-6, 752. Amended 1867-8, 330, 661; 1880, 229.] § 8. Capital stock. § 9. Return of guarantee notea. § 10. Impaired capital— Assessment. This act was incorporated in the Civil CJode; it was amended in 1880 as follows: Capital stock. Sec. 8. Every company formed or existing under this act shall have a capital stock of not less than one hundred thousanti dollars. It shall not make any insurance nor transact any business until its capital stock shall have been fully paid up in cash. The board of directors of the company, or a committee of the directors appointed by the board, shall, without delay, after organizing, proceed to obtain the subscriptions required to complete the capital stock of the company, and in obtaining such subscription, or any subscriptions to capital stock afterward authorized, must open books therefor, giving public notice thereof, if deemed necessary by them in some newspaper of general circulation in the county in which the principal office of the company is located; such books shall, in either case, be kept open until the amount of capital stock required shall have been subscribed. If more than the requisite amount is subscribed, the stock shall be distributed pro rata among the subscribers. Any subscription may be rejected by the board of directors, or the committee thereof, or by either, as to the whole or any part thereof, and shall be, so far as rejected, without effect. [Amend- ment approved April 26, 1880; 1880, 229 (Ban. ed. 552). Took effect from passage; affects only corporations formed before 1873.] Return of guarantee notes. Sec. 9. Any corporation formed or existing under this act may, at any time, return to the makers, their assigns or heirs, the guarantee notes held by said corporation; and from and after such return, or the offer thereof, made in good faith, the corporation shall not be subject to any W2 APPENDIX of the obligations or burdens imposed by section ten of said act upon said corporation and In favor of the makers of such notes. [Amendment approved April 26, 1880; 1880, 230 (Ban. ed. 523). Took effect from passage; affects only corporations formed before 1873.] Impaired capital — Assessment. Sec. 10. Whenever, at any time, the capital of any cor- poration formed or existing under this act shall become impaired, it shall be the duty of the board of directors at once to levy such an assessment upon the capital stock, whether paid up or not, as may be necessary to make good such impairment; and such assessment, except as to the amount thereof, shall be levied and collected in the manner prescribed by sections three hundred and thirty- one to three hundred and forty-nine, inclusive, of the Civil Code of this state. Every such corporation may increase or diminish its capital stock in the mode and manner pre- scribed by section three hundred and fifty-nine of said Civil Code. [Amendment approved April 26, 1880; 1880, 230 (Ban. ed. 523). Took effect from passage; affects only corporations formed before 1873.] The act of April 26, 1880, from which the foregoing three amendments were taken, contained the following additional section: Construction of act. Sec. 4. Nothing in this act shall be construed to affect any corporation formed after twelve o'clock noon on the day upon which the Civil Code of California took effect, nor shall anything in this act be construed to revive or put in force any part of the act of which it is amendatory, beyond what was intended should be in force by the pro- visions of section two hundred and eighty-eight of the Civil Code of California. An act to provide for the organization and management of county fire insurance companies. [Approved April 1, 1897; Stats. 1897, p. 439.] § 1. Incorporation of. § 2. Articles of incorporation— Certlllcate. § 8. Dlrectora. 5 4. Officers. ^ S. Bonds. § $. Powers— By-laur*. § 7. Membership. I 8. Risks. § 9. Classifying risk*. § 10. Property out«id« of oottntr. § 11. Losses. § 12. Idem — ^Assessments. § 13. Notice of assessments. § 14. Action for neglect or refusal to pay asaessm^ii. § 15. Annual statement. § 16. Withdrawal. § 17. Report of officers. § 18. Dissolution. The people of the state of California, represented in senate and assembly, do enact as follows: Section 1. Any number of persons not less than twenty- five, residing in any county in this state, owning insurable property aggregating not less than fifty thousand dollars in value, which they desire to have insured, may incor- porate for the purpose of mutual insurance against loss or damage by fire. Sec. 2. Such persons shall file with the insurance com- missioner a declaration of their intention to incorporate for the purposes expressed in section one of this act, which declaration shall be signed by all of the incorporators, and shall contain a copy of the articles of incorporation proposed to be adopted. The insurance commissioner shall examine the proposed articles of incorporation, and, if they conform to this act, he shall deliver to such persons a certificate permitting them to incorporate as such in- surance company. Such certificate shall be directed to the clerk of the county in which such corporation is proposed to be organized, and shall contain a copy of the proposed articles of incorporation. Upon filing with the secretary of state, the certified copies of the duly executed articles of incorporation, as required by section two hundred and ninety of the Civil Code of the state of California, and of the certificate above provided for, the secretary of state shall thereupon issue a certificate of incorporation to such county insurance company, and, upon organizing under such articles of incorporation, such county fire insurance company may carry on a fire insurance business as herein- after provided. The articles of incorporation and the charter or certificate obtained by any county fire insurance company operating under the previsions of this act, shall be subject to the control and modification by the legisla- 114 APPENDIX. ture of the state of California. The by-laws and all amend- ments thereto shall be filed with the insurance commis- sioner within sixty (60) days after their adoption. Sec. 3. The number of directors shall not be less than (7) seven, nor more than eleven (11), a majority of whom shall constitute a quorum to do business. These directors shall be elected from the members of the association by ballot, and shall hold office for one year, or until their successors are elected and qualified. The annual meeting of the members of the company shall be on the second Monday in January of each year. In the election of the first board of directors each member shall be entitled to one vote. At every subsequent election, every person in- sured shall be entitled to as many votes as there are di- rectors to be elected, and an equal additional number for every risk or risks he holds in the company, and he may cast the same in person or by proxy, distributing them among the directors to be elected, or among a less num- ber of directors, or cumulatin-g them upon one candidate, as he shall see fit. Sec. 4. The directors shall elect, from their own num- ber, a president and a vice-president, and shall also elect a treasurer and a secretary, who may or may not be members of the company. All of such officers hold their oflace for one year from the date of their election, and until their successors are elected and qualified. Sec. 5. The treasurer and secretary shall give bonds to the company for the faithful performance of their duties, in such amounts as shall be prescribed by the board of directors. Sec. 6. Such coriK>ration and its directors shall possess the usual powers, and be subject to the. usual duties of corporations and directors thereof, and may make such by-laws, not inconsistent with the constitution and the laws of this state, as may be deemed necessary for the manage- ment of its affairs, in accordance with the provisions of this act. Also to prescribe the duties of its officers and to fix their compensation, and to alter and amend its by-laws, when necessary. Sec. 7. Any person owning property in the county for which any such company is formed may become a member of such company by insuring therein, and shall be entitled INSURANCE. 788 to all the rights and privileges appertaining thereto, and no person not residing in the county in which the company is formed shall become a director of such company. Sec. 8. Such company may issue policies only on de- tached dwellings, schoolhouses, churches, barns (except livery barn and hotel barns), and other farm buildings, and such property as may be contained therein; also, other property on the premises owned by the insured; hay and grain in stack or in the field, and livestock on the premises of the insured, anywhere in the county, for any time not exceeding five years, and not to extend beyon-d the time limited for the existence of the charter, and for an amount not to exceed four thousand five hundred dollars on any one risk; provided, that no company which has been or- ganized more than six months shall write insurance subject to one fire exceeding three per cent of the amount at risk upon the books of such company. All persons so insured shall give their obligation to the company, bin-ding them- selves, their heirs and assigns, to pay their pro rata share to the company of the necessary expense and of loss by fire which may be sustained by any member thereof during the time for which their respective policies are written, and they shall also at the time of effecting the insurance pay such a percentage in cash, and such other charges, as may be required by the rules or by-laws of the company. Sec. 9. All such companies must classify the property Insured therein at the time of issuing policies thereon under different rates, corresponding as nearly as may be* to the greater or less risk from fire loss which may be at- tached to the several kinds of property insured. Sec. 10. No such company shall insure any property beyond the limits of the county within which the com- pany is organized, nor shall any company issue policies of insurance on any property within the limits of any city containing over six thousand inhabitants at the time of the organization of such company; provided, that no dwell- ing shall be insured within the corporate limits of any city or town exposed by any other building within o^v» hundred feet, or by any other risk other than a dwelxiiig o»* private barn, within two hundred feet of the risk assumed; provided, that the amount of iD«air«»^ shall not exceed W8 APPENDIX. seventy-five per cent of the value of the property and that no additional insurance shall be allowed. Sec. 11. Every member of such company who may sus- tain loss or damage by fire shall immediately notify the president, or in his absence, the secretary thereof, stating the amount of damages or loss sustained or claimed, and if not more than two hundred dollars, then the president and secretary shall proceed to ascertain the amount of such loss or damage, and adjust the same If the claim for damage or loss be an amount greater than two hundred dollars, then the president of such company, or in his absence, the vice-president, or in the absence of both, the secretary thereof, shall forthwith convene the board of directors of such company, whose duty it shall be when convened to appoint a committee, of not less than three disinterested members of such company, to ascertain the amount of such damage or loss. If in either case there is a failure of the parties to agree upon the amount of such damage or loss, they shall submit the question of the amount of such loss to arbitration. The president of the company shall appoint one disinterested person to act as an arbitrator, and no claimant or insured shall appoint another, and if such two arbitrators fail to agree upon the amount of such loss, then they shall select a third disin- terested person to act with them. Such arbitrators so appointed shall have full authority to examine witnesses, and to do all other things necessary to the proper deter- mination of the amount of loss sustained by the claimant, and shall make their award in writing to the president of such company, and such award so as aforesaid made shall be final as to the amount of the loss sustained. The pay of the said committee shall be three ($3.00) dollars per day for each day*s services so rendered, and five cents for each mile necessarily traveled in the discharge of their duties, which shall be paid by the claimant, unless the award of such committee shall exceed the sum offered by the company in liquidation of such loss or damage, in which case such expense shall be paid by the company. Sec. 12. When the amount of any loss shall have been ascertained, which exceeds in amount the cash funds ot the company, the president shall convene the directors of said company, who shall make an assessment upon all LNSURANCB. 737 the property to the amount for which each several piece of property is insured, taken in connection with the rate of premium under which it may he classified. Sec. 13. It shall be the duty of the secretary, whenever such an assessment shall have been made, to immediately notify every person holding a risk in suoh company, per- sonally, by an agent, or by letter directed to his usual post- ofiice address, of the amount of such loss, and the sum due from him, as his share thereof, and of the time and to whom such payment is to be made; but such time shall not be less than thirty days, nor more than ninety days, from the date of such notice. Sec. 14. An action may be brought against any member of such company who shall neglect or refuse to pay any assessment made upon him by the provisions of this act, or other liabilities due the company, and the directors of any company so formed who shall willfully refuse or neglect to perform the duties imposed upon them by law or by the by-laws of the company, shall be liable in their individual capacity to the person sustaining such loss. An action may also be brought and maintained against any such company by members thereof for losses sustained if payment is withheld after the amount of such losses have been determined, and is due by the terms of the policy. Sec. 15. It shall be the duty of the secretary to prepare an annual statement showing the condition of such com- pany on the thirty-first day of December, and present the same at the annual meeting. Sec. 16. Any member of such company may withdraw therefrom by surrendering his policy for cancellation at any time while the organization continues the business for which it was organized, by giving notice in writing to the secretary thereof, and paying his share of all claims that may exist against such company; provided, that the com- pany shall have power to cancel or terminate any policy by giving the insured five days' written notice to that effect, and returning to him any excess of premium he may have paid during the term of the policy, over the cost of his insurance, as measured by the rates of standard fire insurance companies doing business in this state. Sec. 17. It shall be the duty of the president and sec- retary, within thirty days after the first day of JaJiuary in qtvll Code-« 7S8 APPENDIX. each year, to prepare, under their own oath, and transmit to the insurance commissioner, a statement of the con- dition of the company on the last day of the month next preceding the annual meeting. If, upon examination, the insurance commissioner finds that such company is doing business correctly, in accordance with the provisions of this act, he shall thereupon furnish the company his cer- tificate, which shall be deemed authority to continue busi- ness during the ensuing year, subject, however, to the provisions of this act. For such examination and certifi- cate the company shall pay one dollar. Each company shall pay, at the time of organization, five dollars to the insurance commissioner, for all services which he shall render in the matter of organization. Sec. 18. Any such company may be proceeded against and dissolved in the manner and upon the same conditions as provided in case of other insurance companies incor- porated in this state. Sec. 19. All acts and parts of acts in conflict with this act are hereby repealed. IRRIGATION. Laws relating to: See Greneral Laws, title Irrigation. LIENS. Servant's lien, where wages not paid: See ante, title CJor- porations. An act creating a lien in favor of owners or those in charge of stallions, jacks, and bulls used for propagating pur- poses, and providing for the operation of such lien. f Approved March 11, 1891; Stats. 1891, p. 90.] § 1. Claim to be filed— False representati<»a. { 2. Suits to foreclose. { 3. Attachment. § 4. Duty of sheriff. § 5. Sections of Code of Civil Procedt»«. Section 1. Any owner or person having in charge a stallion, jac&, or bull used for propagating purposes, shall have a lien for the agreed price for the service of such stallion, jack, or bull upon any mare or cow served for pay- by any such stallion, jack, or bull, and upon the offspring of such service; provided, that the owner or person having in charge such stallion, jack, or bull shall, within ninety days after such service, file in the oflSce of the county recorder of the county where such mare or cow is served or kept, a verified claim containing a particular description of the mare or cow so served, the date and place of serving, the name of the owner or reputed owner of the mare or cow so served, a proper description, by name or otherwise, of the stallion or jack or bull performing such service, the name of the owner or person in charge thereof, and the amount of the lien claimed, which claim, when filed as aforesaid, shall operate as notice to subsequent purchasers and encumbrancers of such mare or cow for the term of one year from the date of the filing of such claim; and, provided, that any willfully false representations concern- ing the breeding or pedigree of such stallion, jack, or bull made or published by the owner or person in charge of such stallion, jack, or bull, or by any one else at the request or instigation of such owner or person in charge, shall invalidate any lien claimed under or by virtue of the pro- visions of this act. Sec. 2. Suit to foreclose any lien created hereunder may be brought in any county where said mare, cow, or off- spring from such service may be found, and the plaintiff, at the time of issuing summons, or at any time afterwards prior to the rendition of judgment therein, may have the mare or cow upon which said lien subsists, and the said offspring, attached as further security for the payment of any judgment he may recover, unless the defendant or per- son in possession of such mare, cow, or offspring give him good and sufficient security to pay such judgment, in which event the mare, cow, or offspring shall be forthwith dis- charged by the sheriff from such attachment, and from the lien hereunder created. Sec. 3. The clerk of the court must is'sue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, showing — First. — That the defendant is indebted to the plaintiff upon a demand for services rendered by the stallion, jack, or bull, belonging to or under charge of plaintiff, upon the mare or cow of defendant, for which his claim has been duly filed, in accordance with section one of this act. t40 AJ»I>ENDiX. Second.— That the sum for which the attachment is asked is an actual, bona fide existing deht, due and owning from the defendant to the plaintiff, and that the attach- ment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor or creditors of the defendant. Sec. 4. The writ must be directed to the sheriff of the county in which suit is brought, and must require him to attach the mare or cow specified in such lien, and the offspring of such service, unless the defendant or person in possession of such mare, cow, or offspring give good and suflacient security as provided in this act, in which case, to take such security and discharge any attachment he may have made, and to deliver up such mare, cow, or offspring to defendant, or to the person from whom he has taken th3 same, who shall receive the same free from the lien upon which such suit is brought. Sec. 5. Sections five hundred and thirty-nine, eleven hundred and eighty-nine, eleven hundred and ninety-eight, and eleven hundred and ninety-nine of the Code of Civil Procedure are hereby made applicable to this act. Sec. 6. This act shall take effect from and after its passage. An act giving a lien to loggers and laborers, employed in logging camps, upon the logs cut and hauled by the persons who employ them. [Approved March 30, 1878; 1877-8, 747. Amended 1880, 38; 1887, 53.] § 1. Labor with logs, lien upon. § 2. Lien to cease, how and when. § 3. Suits to be commenced in proper courta. § 4. Plaintiff to have lumber attached. § 5. Clerk to issue writ. § 6. Sheriff to attach logs. § 7. Sections made applicable. § 8. Attachment, how made. § 9. Where lien shall extend. Labor with logs, lien upon. Section 1. A person who labors at cutting, hauling, raft- ing or driving logs or lumber, or who performs any labor In or about a logging camp necessary for the getting out or transportation of logs or lumber, shall have a lien there- on for the amount due for his personal services, which shall take precedence of all other claims to continue for thirty days after the log's or lumber arrive at the place of destina- tion, for sale or manufacture, except as hereinafter pro- vided. [Amendment approved April 12, 1880; 1880, 38 (Ban. ed. 191). Took effect from passage.] Lien to cease, how and when. Sec. 2. The lien hereby created shall cease and deter- mine unless the claimant thereof shall, within twenty days from the time such labor shall have been completed, file and record in the office of the county recorder of the county where such labor was performed a verified claim, contain- ing a statement: 1. Of his demand, after deducting all just credits and offsets; 2. The time within which such labor was done; 3. The name of the person or persons for which the same was done; 4. The place where the logs or timber upon which such lien is claimed are believed to be situated, and the marks upon the same; 5. The reputed owner thereof; and, 6. The reputed owner of the land from which the same were cut and hauled. Suits to be commenced in proper courts. Sec. 3. All liens hereby provided for shall cease and de- termine unless suit to foreclose the same shall be com- menced in the proper court within twenty-five days from the time the same are filed. [Amendment approved April 12, 1880; Amendments 1880, 39 (Ban. ed. 191). Took effect from passage.] Plaintiff to have lumber attached. Sec. 4. The plaintiff in any s ch suit, at the time of issu- ing the summons, or at any time afterward, may have the logs or timber upon which such lien subsists attached, as further security for the payment of any judgment he may recover, unless defendant give him good' and sufficient security to pay such judgment, in which event such logs shall be forthwith discharged by the sheriff from such attachment, and from the lien hereby created. 742 APPENDIX. Clerk to issue writ. Sec. 5. The clerk of the court must issue the writ of attachment upon receiving an affidavit by or on behalf cf the plaintiff, showing: 1. That defendant is indebted to the plaintiff upon a de- mand for labor, for which his claim has been duly filed in Eiccordance with section two of this act; 2. That the sum for which the attachment is asked is an actual bona fide existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor or creditors of the defendant. Sheriff to attach logs. Sec. 6. The writ must be directed to the sheriff of the county, and must require him to attach and safely keep the logs and timber specified in such lien, or so much there- of as may be sufficient to satisfy plaintiff's demand, un- less the defendant give good and sufficient security^ as provided in this act, in which case, to take such security and discharge any attachment he may have made, and to deliver up such logs to the defendant, who shall receive the same free from the lien upon which such suit is brought. Sections made applicable. Sec. 7. Sections five hundred and thirty-nine, eleven hundred and eighty-nine, eleven hundred and ninety-five, eleven hundred and ninety-seven, eleven hundred and nine- ty-eight, and eleven hundred and ninety-nine of the Code of Civil Procedure are hereby made applicable to this act. [Amendment approved March 8, 1887; Stats. 1887, p. 53.] Attachment, how made. Sec! 8. Such attachment shall be made by taking such logs into possession, and the sheriff shall make an inven- tory and return of his proceedings as directed in chapter IV, title VII, of the Code of Civil Ffocedure. Where lien shall extend. Sec. 9. The lien provided for by this act, shall in no case extend beyond the limits of the county in which the logs or timber in controversy were cut. LIENS— LODGING-HOUSES. 7« Sec. 10. This act shall take effect and be in force from and after its passage. An act to secure the wages of persons employed as la- borers on threshing-machines. [Approved March 12, 1885; 1885, 109.] Section 1. Every person performing work or labor of any kind in, with, about, or upon any threshing-machine, the engine, horse-power, wagons, or appurtenances thereof, while engaged in threshing, shall have a lien upon the same to the extent of the value of his services. Sec. 2. The lien herein given shall extend for ten days after the person has ceased such work or labor. Sec. 3. If judgment shall be recovered in any action to recover for said services for work or labor performed, and said property shall be sold, the proceeds of such sale shall be distributed pro rata to all judgment creditors who have, within ten days, begun suits to recover judgments for the amount due them for such work. Sec. 4. The lien shall expire unless a suit to recover the amount of the claim is brought within ten days after the party ceases work. LODGING-HOUSES. An act concerning lodging-houses and sleeping apartments within the limits of incorporated cities. [Approved April 3, 1876; 1875-6, 759.] § 1. Number of cubic feet. § 2. Misdemeanor. § 3. Buildings excepted. Number of cubic feet for each person. Section 1. Every person who owns, leases, lets, or hires, to any person, or persons, tvuy room or appartment in any building, house, or other structure within the lim- its of any incorporated city, or city and county, within the state of California, for the purpose of a lodging or sleep- ing apartment, which room or apartment contains less than five hundred cubic feet of space, in the clear, for each per- U4 APPENDlJt. son so occupying such room or apartment, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be punished by a fine of not less than fifty (50) dollars or more than five hundred (500) dollars, or by imprisonment in the county jail, or by both such fine or imprisonment. Misdemeanor. Sec. 2. Any person or persons found sleeping or lodg- ing, or who hires or uses for the purpose of sleeping in or lodging in any room or apartment which contains less than five hundred (500) cubic feet of space, in the clear, for each person so occupying such room or appartment, shall be deemed guilty of 'a misdemeanor, and shall, upon con- viction, be punished by a fine of not less than ten (10) or more than fifty (50) dollars, or by both such fine and imprisonment. Buildings excepted. Sec. 3. It shall be the duty of the chief of police (or such other person to whom the police powers of a city are delegated) to detail a competent and qualified offifcer or officers of the regular force to examine into any viola- tion of any of the provisions of this act, and to arrest any person guilty of any such violation. Sec. 4. The provisions of this act shall not be con- strued to apply to hospitals, jails, prisons, insane asylums, or other public institutions. Sec. 5. All acts or parts of acts in conflict with the provisions of this act are hereby repealed. Sec. 6. This act shall take effect and be in force from and after its passage. MASTER AND SERVANT. An act to provide for a lunch hour for laborers in saw- mills, shake-mills, shingle-mills, and logging-camps. [Approved February 28, 1901, p. 75.] Lunch hour for laborers in lumber camps and mills. Section 1. Every person, corporation, co-partnership, or company operating a sawmill, shake-mill, shingle-mill, or MASTEtl AND SERVANT— MIN:eS AND MINING. 7« logging-camp, in the state of California, shall allow to his or its employees, workmen, and laborers a period of not less than one hour at noon for the midday meal.^ Sec. 2. Any person, corporation, co-partnership, or com- pany, his or its agents, servants, or managers, violating any of the provisions of this act shall be guilty of a mis- demeanor, and upon conviction thereof shall be punished by a fine of not more than two hundred dollars nor less than one hundred dollars for each violation of the provi- sions of this act. Sec. 3. This act shall take effect and be in force on the first day of April, nineteen hundred and one. MEOHANICS' INSTITUTES: See ante, title Chambers ol Commerce. MINES AND MINING. An act for the protection of miners. [Approved March 16, 1872; Stats. 1871-72, p. 413.] § 1. Protection of miners. § 2. Escape shaft. § 8. LiabUitles. Damages. , Section 1. It shall not be lawful for any corporation, association, owner, or owners of any quartz-mining claims within the state of California, where such corporation, as- sociation, owner, or owners employ twelve men daily, to sink down into such mine or mines any perpendicular shaft or incline beyond a depth from the surface of three hun- dred feet without providing a second mode of egress from such mine, by shaft or tunnel, to connect with the main shaft at a depth of not less than one hundred feet from the surface. Sec. 2. It shall be the duty of each corporation, asso- ciation, owner, or owners of any quartz mine or mines in this state, where it becomes necessary to work such mines beyond the depty of three hundred feet, and where the number of men employed therein daily shall be twelve or more, to proceed to sink another shaft or construct a ?4« AI>1>ENDIX. tunnel so as to connect wltli the main working shaft of such mine as a mode of escape from underground acci- dent or otherwise. And all corporations, associations, owner, or owners of mines as aforesaid, working at a greater depth than three hundred feet, not having any- other mode of egress than from the main shaft, shall pro- ceed as herein provided. Sec. 3. When any corporation, association, owner, or owners of any quartz mine in this state, shall fail to pro- vide for the proper egress as herein contemplated, and where any accident shall occur, or any miner working therein shall be hurt or injured and from such injury might have escaped if the second mode of egress had existed, such corporation, association, owner, or owners of the mine where the Injuries shall have occurred shall be lia- ble to person injured in all damages that may accrue by reason thereof; and an action at law in a court of com- petent jurisdiction may be maintained against the owner or owners of such mine, which owners shall be jointly or severally liable for such damages. And where death shall ensue from injuries received from any negligence on the part of the owners thereof by reason of their failure to comply with any of the provisions of this act, the heirs or relatives surviving the deceased may commence an ac- tion for the recovery of such damages as provided by an 'act entitled an act requiring compensation for causing death by wrongful act, neglect, or default, approved April twenty-sixth, eighteen hundred and sixty-two. Sec. 4. This act shall take effect and be in force six months from and after its passage. An act supplemental to an act entitled "An act concern- ing corporations," passed the twenty-second of April one thousand eight hundred and fifty. lAnnroved March 21, 1872; 1871-2, 448. Amended 1875-6, •- 730.] Bee note under sec. 7. § 1. Petition for removal of officer*. § 2. Organization of meeting. § 3. Ballot to supply vacancies. § 4. Certificate of election. 8 6. Fees of county clerk. MIN2S AND MINIHa. K7 Petition for removal of officers. Section 1. On petition of the majority of the share- holders of any corporation formed for the purpose of min- ing to the county judge of the county where said corpora- tion has its principal place of business, verified by the signers, to the effect that they are severally the holders on the books of the company of the number of shares set opposite their signatures to the foregoing petition, the county judge shall issue his notice to the shareholders of said company that a meeting of the shareholders will be held, stating the time, not less than five or more than ten days after the first publication of such notice, and the place of meeting within said county, and the object to be to "take into consideration the removal of ofiicers of said company; which notice, signed by the said county judge, shall be published daily in one or more daily newspapers published in said county for at least five days before the time for the meeting. Organization of meeting. Sec. 2.. At the time and place appointed by said notice, those claiming to be shareholders who shall assemble shall proceed to organize by the appointment of 'a chairman and secretary, and thereupon those claiming to be shareholders shall present proof thereof, and only those showing a right to vote shall take part in the further proceedings. If it appears that at the time appointed, or within one hour thereafter, shareholders of less than one-half the shares are present, no further proceedings shall be had; but the meetng shall be ipso facto dissolved; provided, however, that by a vote of the holders of the majority of the capital stock of the corporations aforesaid the board of trustees may be required to furnish to the meeting a written de- tailed statement and account of the affairs, business, and property of the corporation; but if the holders of a ma- jority of the shares are present, they shall proceed to vote, the secretary calling the roll, and the members voting yea or no, as the case may be. The secretary shall enter the same upon his list, and when he has added up the list and stated the result, he shall sign the same and hand It to the chairman, who shall sign the same and declare the result. [Amendment approved April 1, 1876; Amendments 1875-6, 730. Took effect from passage.] 74S APPENDIX. Lallot to supply yacancies. Sec. 3. If the result of the vote is that the holders of a majority of all the shares of the company are In favor of the removal of one or more of the officers of the com- pany, the meeting shall then proceed to ballot for officers to supply the vacancies thus created. Tellers shall be appointed by the chairman, who shall collect the ballots and deliver them to the secretary, who shall count the same in open session, and having stated the result of the count in writing, shall sign the same and hand it to the chairman, who shall announce the result of the meeting. Certificate of election. Sec. 4. A report of the proceedings of the meeting shall be made in writing, signed by the chairman and secretary, and verified by them, and delivered to the county judge, who shall thereupon issue to each person chosen a certificate of his election, and shall also issue an order requiring that all books, papers, and all property and effects be immediately delivered to the officers elect; and the petition and report, indorsed with the date and fact of the issuance of such certificate and order, shall be delivered to the county clerk, to be by him filed in his office, and thereafter the persons thus elected officers shall be the duly elected officers, and hold office until the next regular annual meeting, unless removed under the pro- visions hereof. Fees of county clerk. Sec. 5. For all services in these proceedings the county clerk shall receive ten dollars on the issuance of the no- tice and ten dollars on the issuance of the certificates. Sec. 6. All acts or parts of acts conflicting with this act are hereby repealed. Sec. 7. This act shall take effect immediately. Declared unconstitutional in ChoUar etc Co. v. Wilson, 66 Cal. 374, MINES AND MINING. T49 An act for the better protection of the stockholders in corporations formed under the laws of the state of California for the purpose of carrying on and con- ducting the business of mining. [Appraved March 20, 1874; 1873-4, 866. Amended 1880, 134; 1897, 38.] § 1. Books— Keeping open to inspection— Posting monthly balances. § 2. Examination of grounds. § S. Penalty. Boo*ks Of mining corporations. Section 1. It shall be the duty of the secretary of every corporation formed for the purpose of mining, or conducting mining in California, to keep a complete set of books showing all receipts and expenditures of such cor- poration, the sources of such receipts, and the objects of such expenditures, and also all transfers of stock. All books and papers shall, at all times during business hours, be open to the inspection of any bona fide stockholder; and if any stockholder shall at any time so request, it shall be the duty i* the secretary to attend at the oflSce of said company at least one hour in the day out of regular busi- ness hours, and exhibit such books and papers of the com- pany as such stockholder may desire, who shall be entitled to be accompanied by an expert; and he shall also be en- titled to make copies or extracts from any such books or papers. Any stockholder, may at reasonable hours, have permission to examine such mining property, and he shall be entitled to be accompanied by an expert to examine such property, to take samples, and to make such other examina- tion as he may deem necessary. It shall be 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 com- plete statement of all disbursements and receipts, showing from what sources such receipts were derived, and for what and to whom such disbursements or payments were made, and for what object or purpose the same were made; also all indebtedness or liabilities incurred or existing at the time, and for what the same were incurred, and the bal- ance of money, if any, on hand. Such account or balance 750 APPENDIX. slieet shall be yerified under oath by the president and sec- retary, and posted in some conspicuous place in the of- fice of the company. It shall be the duty of the superin- tendent, 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 disibursements were made. Such account shall also contain a cerified state- ment showing the number of men employed under him, and for what purpose, and the rate of wages paid to each one. He shall 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 sent to mill for reduction, its assay value, the amount of bullion received, the amount of bullion shipped to the of- fice of the company or elsewhere, and the amount, if any, retained by the superintendent. It shall also be 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, tc^ether with the assay value thereof. All accounts, reports, and correspondence from the superin- tendent shall be kept in some conspicuous place in the of- fice of said company, and to be open to the inspection of all stockholders; provided, that this section shall apply only to mining corporations whose stock is listed and of- fered for sale at public exchange, and shall not apply to mining corporations whose stock is not listed in the public exchange, and is not offered for public sale. [Amended February 26, 1897; Stats. 1897, p. 38.] Examination of grounds. Sec. 2. Any bona fide stockholder of a corporation formed under the laws of this state for the purpose of mining, shall be entitled to visit, accompanied by his ex- pert, and examine the mine or mines owned by such corpo- ration, and every part thereof, at any time he may see *it to make such visit and examination; and when such stockholder shall make application to the president of such corporation, he shall immediately cause the secretary there- of to issue and deliver to such applicant an order, under the seal of the corporation, directed to the superintendent. commanding him to show and exhibit such parts of said MIKES AND MINING. tSl mine or mines as the party named in said order may de- sire to visit and examine. It shall be the duty of the sup- erintendent, on receiving such order, to furnish such stock- holder every facility for making a full and complete in- spection of said mine or mines, and of the workings there- in; it shall be his duty also 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. In case of the failure or refusal of the superintendent to obey such order, such stockholder shall be entitled to recover in any court of competent jurisdiction, against said corpo- ration, the sum of one thousand dollars, and traveling ex- penses to and from said mine as liquidated damages, to- gether with costs of suit. In case of such refusal, it shall be the duty of the directors of such corporation forthwith to remove the oflacer so refusing, and thereafter he shall not be employed, directly or indirectly, by such corpora- tion, and no salary shall be paid to him. [Amendment ap- proved April 23 1880; Amendments 1880, 135 (Ban. ed. 400). Took effect from passage; repealed conflicting acts.] Penalty. Sec. 3. In case of the refusal or neglect of the presi- dent to cause to be issued by the secretary the order m the second section of this act mentioned, such stockholder shall be entitled to recover against said president the sum of one thousand dollars and costs, as provided in the last section. In case of the failure of the directors to have the reports and accounts current made and posted as in the first section of this act provided, they shall be liable, either severally or jointly, to an action by any stockholder in any court of competent jurisdiction complaining thereof, and on proof of such refusal or failure, such complaining stockholder shall recover judgment for actual damages sustained by him, with costs of suit. And each of such defaulting directors shall also be liable to removal for such neglect. [Amended February 26, 1897; Stats. 1897, p. 40.] Sec. 4. All acts in conflict with the provisions of thi& act are heretoy repealed. fca APPENDIX. An act for the further protection of stockholders in mining companies. [Approved April 23, 1880; 1880, 131 (Ban. ed. 398), Amended 1897, 96.] S 1. Sale or mca*tgage of property. S 2. Stock to be in nam« of real owner. S 3. Books, when to close— Stock, how voted. Directors not to sell, etc., unless two-thirds of capital stock consent. Section 1. It shall not be lawful for the directors of any mining corporation to sell, lease, mortgage, or other- wise depose of the whole or any part of the mining ground owned or held by such corporation, nor to purchase or obtain in any way (except by location) any additional min- ing ground, unless such act be ratified by the holders of at least two- thirds of the stock of such corporation then outstanding. Such ratification may be made either in writ- ing, signed and acknowledged by such stockholders, or by resolution, duly passed at any regularly called stockholders* meeting. The certificate of the secretary of any mining corporation reciting such ratification at a stockholders* meeting, or the names of stockholders with the amount of stock held by each, and the total stock outstanding, signed and acknowledged by him in the manner provided for acknowledgments to conveyances of real property, may be attached to or indorsed upon any deed, mortgage, con- veyance, or other instrument, made under this act and re- corded wi{h such d«ed, conveyance, or other instrument, and the recitals contained in such certificate, or the duly recorded copy thereof, are made prima facie evidence of their truthfulness for all purposes whatsoever; provided, that no one except a stockholder in any such corporation, shall be permitted to urge any objection to the acquisition of any additional ground or other property by such corpora- tion. [Amendment approved March 9, 1897; Stats. 1897, p. 96,] Stock to be in name of real owner or trustee. Sec 2. All stock in each and every mining corpora- tion in this state shall stand in the books of said company, in all cases, in the names of the real owners of such stock, or in the name of the trustees of such real owners; NUiaAJ^ICES— ORPHANS— RArLROAr>S. 755 but in every case where such stock shall stand in the name of a trustee, the party for whom he holds such stock in trust shall be designated upon said books, and aJ'so in the body of the certificate of such stock. Books, when to close — Stock, how voted. Sec. 3. It sh^ll not be lawful for any such corpora- ^^ tion, or the secretary thereof, to close the books of said aa * ^ C. C, 1906, p. 752-753. " STATUTES OF CALIFORNIA, 1905, p. 74 An act to repeal an act entitled "An act for the further protection of stockholders in mining companies", approved April 23, 1880, and the act amendatory thereof, approved March 9, 1897, relating to the protection of stockholders in mining companies. (Approved March 7, 1905.) The people of the .State of California represented in senate and assembly, do enact as follows: Repealed. Section 1. An act entitled '*An act for the further protec- tion of stockholders in mining companies", approved April twenty-third, eighteen hundred, and eighty, and an act entitled "An act to amend section 1 of an act entitled 'An act for the further protection of stockholders in mining companies', approved April 23, 1880", approved March ninth, eighteen hundred and ninety-seven, are hereby repealed. Sec. 2. This act shall take effect immediately. chi-ses in municipalities, and relative to granting of franchises. [Approved March 23, 1893; Stats. 1893, p. 288. Amended 1897, 176. Consult in connection with this act the acts of 1897, p. 135, and 1901, p. 265.] Section 1. Every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate rail^ narrva r^f *^c^l ^k-amx^i. stock to be In name of real owner or trustee. Sec. 2. All stools in each and every mining corpora- tion in this state shall stand in the books of said company, in all cases, in the names of the real owners of such stock, or in the name of the trustees of such real owners; NUISANCES-ORPHANS— RAILROABS. 78S but in every case where such stock shall stand in the name of a trustee, the party for whom he holds such stock in trust shall be designated upon said books, and also in the body of the certificate of such stock. Books, when to close — Stock, how voted. Sec. 3. It shall not be lawful for any such corpora- tion, or the secretary thereof, to close the books of said corporation more than two days prior to the day of any election. At such election the stock of said corporation shall be voted by the bona fide owners thereof, as shown by the books of said corporation, unless the certificate of stock, duly indorsed, be produced at such election, in which case said certificates shall be deemed the highest evidence of ownership, and the holder thereof shall be entitled to vote the same. Sec. 4. All acts and parts of acts in conflict with this act are hereby repealed. Sec. 5. This act shall take effect from and after its passage. NUISANCES. See act authorizing district attorneys to aJbate public nuisances, passed March 15, 1899; Stats. 1899, 103. ORPHANS. Bee ante, title Infancy. RAILROADS. [Consult an act approved March 22, 1899; Stats. 1899, p. 183, requiring railroads to equip cars with fenders and brakes.] An act providing for the sale of railroad and other fran- chises in municipalities, and relative to granting of franchises. [Approved March 23, 1893; Stats. 1893, p. 288. Amended 1897, 176, Consult in connection with this act the acts of 1897, p. 135, and 1901, p. 265.] Section 1. Every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate rail- *^vii Code— 4S 7S4 At»PSNDEX. roads along or upon any public street or highway, or to ex- ercise any other privilege whatever hereafter proposed to be granted by the board of supervisors, or other governing or legislative body of any county or district within this state, except renewals of franchises or privileges for wharves, chutes, or piers, in counties outside of the lim- its of incorporated cities or towns, shall be granted upon the conditions in this act provided, and not otherwise. The fact that an application for such franchise or privilege has been made to such board of supervisors or other governing or legislative body, together with a statement that it is proposed to grant the same must first be advertised in one or more daily newspapers in the county or district where- in the said franchise or privilege is to be exercised. If there be no daily newspaper published in the district wherein the said franchise or privilege is to be exercised, then the publication must be made in some other daily newspaper of the county, and if there be no daily news- paper published in the county wherein the said fran- chise or privilege is to be exercised, then the publication must be made in a daily newspaper published in an ad- joining county. Such advertisements must continue every day for at least ten days, and must commence at least thirty days before any further action of the board of sup- ervisors or other governing or legislative body. The ad- vertisement must state the character of the franchise or privilege proposed to be granted, 'the term of its continu- ance, and, if a street railroad, the route to be traversed, and the day on which tenders will be received for the same. On the day so stated, the board or other governing or legislative body herein mentioned, must meet in open ses- sion and read the tenders. The franchise or privileges must then be awarded to the highest bidder; provided, however, that nothing in this section shall affect a special privilege granted for a shorter term than two years. [Amendment approved March 19, 1897; Stats. 1897, p. 176.] Sec. 2. Any member of any board of supervisors, com- mon council, or other governing or legislative body of any county, city and county, city, town, or district of this state, who, by his vote, violates or attempts to violate the provisions of this act or any of them, shall be guilty of RAIUEIOADS. 1S6 a misdemeanor and of malfeasance in oflace, and be de- prived of his office by the decree of a court of competent jurisdiction, after trial and conviction. Sec. 3. This act shall take effect immediately. An act providing for the sale of street railroad and other franchises in municipalities, and providing conditions for the granting of such franchises by the legislative or other governing bodies, and repealing conflicting acts. [Approved March 13, 1897, p. 135.] See the following act, also the note under sec. 4 of this act. S 1. Sale of franchises. § 2. Extension of existing franchises. S 8. Misdemeanor. The people of the state of California, represented in senate and assembly, do enact as follows: Section 1. Every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate street railroads, upon any public street or highway, to lay gas or water pipes, to erect poles or wires for transmitting elec- tric power, or for lighting purposes, along or upon any pub- lic street or highway, or to exercise any other privilege whatever hereafter proposed to be granted by the board of supervisors, board of trustees, common council, or other governing or legislative body of any city and county, city, or town within this state, except steam railroads, telegraph lines, and renewal of franchises for piers, chutes, and wharves, shall be granted upon the conditions in this act provided, and not otherwise. The fact that an application for such franchise or privilege has been made to such board of supervisors, board of trustees, common council, or other governing, or legislative body, together with a state- ment that it is proposed to grant the same, must first be advertised in one or more newspapers of the city and county, city, or town, wherein the said franchise or priv- ilege is to be exercised. Such advertisement must state that bids will be received for such franchise, and that it will be awarded to the highest bidder, and such adver- tisement must be published in such daily newspaper once JU APPENDIX. la day for ten successive days, and if there be no daily news- paper published in such county, city and county, or city, then it shall be published in a weekly newspaper published in such county, city and county, or city, once a week for four weeks, and in either case the full advertisement must be completed not less than twenty nor more than thirty days before any further action of the board of supervisors, board of trustees, common council, or other governing or le^slative body. The advertisement must state the char- acter of the franchise or privilege proposed to be granted, the term of its continuance, and if a street railroad, the route to be traversed; that sealed bids or tenders will be received up to a certain hour on a day named therein, and a further statement that no bids will be received of a sin- gle sum or amount stated, but that all bids must be for the payment in lawful money of the United States of a stated per cent of the gross annual receipts of the person, partnership, or corporation, or other authority to whom the franchise is awarded, arising from its use, operation, or possession. No percentage shall be paid for the first five years succeeding the date of the franchise, but there- after such percentage shall be payable annually, and shall in no case be less than three per cent per annum upon such grc^s receipts, the franchise to be forfeited by failure to make the payments stated in the bids upon which the award was made; provided, the board of supervisors, board of trustees, common council, or other governing or legis- lative body may provide as a condition of such franchise that the payments of said percentage shall begin at any time less than five years after the franchise is granted, if snch franchise is a renewal, or substantially a renewal, of a franchise already in existence. After the expiration of the time stated in the advertisement up to which sealed bids or proposals will be received, the board or other gov- erning or legislative body herein mentioned, must meet in open session and open and read the tenders or bids. The franchise or privileges must then be award to the highest bidder- provided, however, that nothing in this section ghall affect a special privilege, granted for a shorter term than two years; and provided further, that the gov- erning power may reject any or all bids. And provided further, that unless the bidder shall file with his bid a bond to such county, city and county, city, town, or dis- trict, with at least two good and sufficient sureties, to be RAILROADS. T57 approved by such board or other governing or legislative body in a penal amount to be by it prescribed and set forth in the advertisement for bids, conditioned that such bidder shall well and truly observe, fulfill, and perform each and all of the terms, conditions, and obligations of such franchise, in case the same shall be awarded to h*im, and that in case of any breach of condition of such bond, the whole amount of the penal sum therein named shall be taken and deemed to be liquidated damages, and shall be recoverable from the principal and sureties upon said bond, no award of any such franchise shall be made upon such bid, although the same may be the highest, but such franchise may be awarded to the next highest bidder, who shall have complied with this proviso, or, in the discre- tion of such board, or other governing or legislative body, all bids may be set aside and rejected, and new bids ad- vertised for. Sec. 2. No franchise now existing, or which may here- after be granted, shall be renewed by the board of super- visors, board of trustees, common council, or other govern- ing or legislative body above described, nor shall the ex- tension or renewal of the same be advertised or offered for sale by such governing or legislative body until with- in one year prior to the date of the expiration of the ex- isting franchise, unless the existing franchise is first sur- rendered by the holders thereof; provided, no franchise can be surrendered without the consent of the board of supervisors, board of trustees, common council, or other governing or legislative body of the city and county, city, or town, granting such franchise. And provided further, that on the application of the mayor, or a majority of the board of supervisors, board of trustees, common council, or other governing or legislative body above described, it shall be the duty of the attorney general to sue for a for- feiture of any franchise granted by such governing or leg- islative body, alleging in such suit noncompliance with the terms of the franchise. Sec. 3. Any member of any board of supervisors, com- mon council, or other governing or legislative body of any city and county, city, or town, of this state, who, by his vote, violates or attempts to violate the provisions of this act, or any of them, shall be guilty of a misdemeanor T5S APPENDIX. and of malfeasance in office, and be deprived of his office by the decree of a court of competent jurisdiction, after trial and conviction. Sec. 4. All acts and parts of acts in conflict with this act are hereby repealed. This act was declared unconstitutional in Pereira v. Wallace, 129 Cal. 397. See the following act. , ' An act providing for the sale of street railroad and other franchises in municipalities, and providing conditions for the granting of such franchises by legislative or other governing bodies, and repealing conflicting acts. [Became a law under constitutional provision without governor's approval, March 11, 1901, p. 265. Amended 1908, p. 90.] The people of the state of California, represented in sen- ate and asembly, do enact as follows : Section 1. Every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate istreet railroads upon any public street or highway, to lay gaspipes for the purpose of carrying gas for heat and power, to erect poles or wires for transmitting electric heat and power 'along or upon .any public street or high- way, or to exercise any other privilege whatever hereafter proposed to be granted by boards of supervisors, boards of trustees, or common councils, or other governing or legislative bodies of any city and county, city or town within this state, except steam railroads and except tele- graph or telephone lines doing an interstate business, and renewals of franchises for piers, chutes or wharves, shall be granted upon the conditions in this act provided, and not otherwise. Sec. 2. An applicant for any franchise or privilege above mentioned shall file with the governing or legislative body of the municipality an application, and thereupon said governing body shall, in its discretion, advertise the fact of said application, together with a statement that it is proposed to grant the same, In one or more news- papers of the city and county, city or town wherein the RAILROADS. 753 said franchise or privilege is to be exercised. Said ad- vertisement must state that bids will be received for such franchise, and that it will be awarded to the highest bidder, and the same must be published in such newspaper once a day for ten successive days, if it be a daily newspaper, and if there be no daily newspaper published in such city and county, city or town, then it shall be published in a weekly newspaper once a week for four successive weeks, and in either case the full publication must be completed not less than twenty nor more than thirty days before any further action can be taken thereon. [Amendment ap- proved March 6, 1903; Stats. 1903, p. 90. In effect im- mediately.] Sec. 8. The publication must state the character of the franchise or privilege proposed to be granted, the term for which it is granted, and, if it be a street railroad, the route to be traversed; that sealed bids therefor will be received up to a certain hour and day named therein, and that the successful bidder and his assigns must, during the life of said francl-ise, pay to the municipality two per cent (2%) of the gross annual receipts of the person, part- nership or corporation to whom the franchise is awarded, arising from its use, operation or possession. No per- centage 'Shall be paid for the first five (5) years succeeding the date of the franchise, but thereafter such percentage shall be payable annually; and in the event said payment Is not made, said franchise shall be forfeited; provided further, that if the franchise be a renewal of a right already in existence, the payment of said percentage of gross receipts shall begin at once. Sec. 4. In case the franchise granted shall be an ex- tension of an existing system of street railroad, then the gross receipts shall be estimated to be one-half of the proportion of the total gross receipts of said system which the mileage of such extension bears to the total mileage of the whole system, and said estimate shall be conclusive as to the amount of the gross receipts of said extension. Sec. 5. Said advertisement shall also contain a state- ment that the said franchise will be struck off, sold, and awarded to the person, firm or corporation who shall make the highest cash bid therefor; provided, only, that at the fM APPENDIX. time of the opening of said bids any responsilale person, firm or corporation present or represented may bid on said franchise or privilege a sum not less than ten per cent above the highest sealed bid therefor, and said bid so made may be raised not less than ten per cent by any other responsible bidder, and said bidding may so con- tinue until finally said franchise shall be struck off, sold,, and awarded by said governing body to the highest bidder therefor in gold coin of the United States. Each sealed bid shall be accompanied with cash or a certified check, payable to the treasurer of such municipality, for the full amount of said bid, and no sealed bid shall be con- sidered unless said cash or check is inclosed therewith, and the successful bidder shall deposit at least ten per cent of the amount of his bid with the clerk of such romicipality before the franchise shall be struck off to him. And if he shall fail to make such deposit im- mediately, then and in that case, his bid shall not be received, and shall be considered as void, and the said franchise shall then and there be again offered for sale to the bidder who shall make the highest cash bid therefor, subject to the same conditions as to deposit, as above- mentioned. Said procedure shall be had until s^id fran- chise is struck off, sold, and awarded to a bidder who shall make the necessary deposit of, at least, ten per cent of the amount of his bid therefor, as herein provided. Said successful bidder shall deposit with the clerk of such municipality, within twenty-four hours after the accept- ance of his bid, the remaining ninety per cent of the amount thereof, and in case he or it shall fail to do so, then the said deposit theretofore made shall be forfeited, and the said award of said franchise shall e void, and the said franchise shall then and there, by said governing body, be again offered for sale to the highest bidder therefor, in che same manner, and under the same re- striction as hereinbefore provided, and in case said bidder shall fail to deposit with the clerk of such municipality, the remaining ninety per cent of his bid, within twenty- four hours after its acceptance, the award to him of said franchise shall be set aside, and the deposit theretofore made by him shail be forfeited, and no further proceedings for a sale of said franchise shall be had unless the same shall be readvertised and again offered for sale, in th€> RAIUaOAIJS. T^ manner hereinbefore provided. [Amendment approved March 6, 1903; Stats. 1903, p. 90. In effect immediately.] Sec. 6. Work to erect or lay telegraph or telephone wires, to construct street railways, to lay gaspipes for tne purpose of carrying gas ^ for heat and power, to erect poles or wires for transmitting electric Leat or power, along or upon any public street or highway, or to exercise any privilege whatever, a franchise for which shall have been granted in accordance with the terms of this act, shall be commenced in good faith within not more than four months from the granting of any such franchise, and if not so commenced within said time said franchise so granted shall be declared forfeited, and shall be completed within not more than three yearL thereafter, and if not so completed within said time said franchise so granted shall be forfeited; provided, that for good cause shown the governing or legislative body may by resolution extend the time for completion thereof, not exceeding three months. Sec. 7. The successful bidder for any franchise or privilege struck off, sold, and awarded under this act s!\all file a bond running to said city and county, or city or town, with, at least, two good and sufficient sureties, to be approved b7 such governing body, in a penal sum by it to be prescribed, and set forth in the advertisement for bids, conditioned that such bidder shB.ll well and truly olDserve, fulfill, and perform each and every term and condition of such frar.chise, and that in case of any breach of condition of such bond, the whole amount of the penal sum therein named shall be taken and deemed to be liquidated damages, and shall be recoverable from the principal and sureties upon said bond. Said bond shall be filed with such governing body within five days after such franchise is awarded, and upon the filing and approval of such bond, the 'said franchise shall, by said governing or legislative body, be granted by ordinance to the person, firm, or corporation to whom it has been struck off, sold, or awarded, and in case that said bond shall not be so filed, the award of such franchise shall be set aside, and any money paid therefor shall be forfeited, and said franchise shall, in the discretion of said governing or legislative body, be readvertised, and again offered for sale in the m ATTBiNDTK.. same manner, and under the same restrictions, as herein- before provided. [Amendment approved March 6, 1903; Stats. 1903, p. 91. In effect immediately.] Sec. 8. It shall be the duty of the attorney general, upon the complaint of any municipality, or, in his dis- cretion, upon the complaint of any taxpayer, to sue for the forfeiture of any franchise granted under the terms of this act, for the noncompliance with any condition thereof. Sec. 9. No clause or condition of any kind shall be inserted in any franchise or grant offered or sold under the terms of this act, which shall directly or indirectly restrict free and open competition in bidding therefor, land no clause or provision shall be inserted in any fran- chise offered for sale, which shall in anywise favor one person, firm or corporation, as against another in bidding for the purchase thereof. Sec. 10. Any member of any common council or other governing or legislative body of any city and county, city or town of this state, who, by his vote, violates or attempts to violate the provisions of this act, or any of them, shall be guilty of a misdemeanor, and may be punished therefor, as provided by law, and may be deprived of his office by the decree of a court of competent jurisdiction, after trial and conviction. Sec. 11. All acts or parts of acts in conflict herewith are hereby repealed; provided, however, that nothing herein contained shall be construed as repealing or amending the following acts, to wit: "An act relating to the granting by the counties and municipalities of fran- chise for the construction of paths and roads for the use of bicycles and other horseless vehicles," approved March twenty-seventh, eighteen hundred and ninety-seven; "An act to authorize cities and towns to grant franchises for ttie construction and maintenance of railroads beyond the limits of such cities or towns leading to public parks owned thereby," being chapter forty [fifty] of the laws of eighteen hundred and ninety-seven of the state of Cali- fornia. This act shall take effect immediately. RAILROADS. 763 An act to confirm, ratify, and make valid ordinances here- tofore passed by the trustees, council, or other body intrusted with the government of any incorporated city, city and county, Oi town giving authority and permission to propel cars upon railroad tracks laid through the streets and public highways of such in- corporated city, city and county, or town, by elec- tricity. [Approved February 25, 1891; Stats. 1891, p. 12.] Section 1. In all cases where, prior to the passage of this act, authority to lay railroad tracks through streets or public highways of any incorporated city, city and connty, or town, has been obtained for a term of years, not exceeding fifty, from the trustees, council, or other body to whom was intrusted the government of the city, city and county, or town, and permission has been granted by such governing body to propel cars upon such tracks by electricity, such authority and permission shall be, and shall be held and deemed, as valid and legal as the same would have been if, at the time of the obtaining thereof, section four hundred and ninety-seven of the Civil Code had expressly declared that permission might be given to propel cars upon such tracks by electricity, as well as by horses, mules, or ^ire ropes running under the streets and propelled by stationary steam engines; pro- vided, that all such permissions or franchises heretofore granted shall be subject to the provisions of the laws of this state applicable to street railroads in general, and subject to the same regulations from city, city and county, and town authorities as if the said franchises were here- after granted. Sec. 2. This act shall take eilect and be in force from and after its passage. An act to enable railroad companies to complete their railroads. [Approved April 1, 1878; 1877-8, 944,] Authorizing construction of railroads. Section 1. Every railroad company heretofore organized under the laws of this state, and which has completed a 7(B4 APPENDIX. portion of its road prior to the passage of this "act, is hereby authorized and empowered to complete its road as described in its articles of incorporation, notwithstanding it may not have begun the construction of its road within two years after filing its original articles of incorporation, and notwithstanding it may not have completed and put in operation five miles of its road each year thereafter. Sec. 2. This act shall take effect from and after its passa^. An act permitting and authorizing railway and other cor- porations, organized under the laws of this state, or of any state or territory of the United States of American, or any act of congress of the United States of America, to do business in this state on equal terms. [Approved April 3, 1880; 1880, 21 (Ban. ed. 114).] Equal terms for all railway corporations. Section 1. That every railway corporation, and every corporation organized for the purpose of carrying freights or passengers, which has or may be created or organized under or by virtue of any of the laws of any state or territory of the United States of America, or any act of congress of the United States of America, may hereafter build railways, exercise the right of eminent domain, and do or transact a,ny other business which such corporation might, if the same had been created or organized under or by virtue of the laws of this state, having the same rights, privileges, and immunities, and subject to the same laws, penalties, and obligations, and burdens, as though said corporations had been created by or organized under the laws of the state of California. Railroad corporations may contract with one another. Sec. 2. Railroad corporations doing business in this state and organized under any law of this state, or the United States, or of any state or territory thereof, have power to enter into contracts with one another, whereby the one may lease of the other the whole or any part of its railroad, or may. acquire of the other the right to use, in common with it, the whole or any part of its railroad. Sec. 3. All laws inconsistent with this act are hereby repealed. RAILROADS. An act to provide for the management and operation of railroads above certain elevations. [Approved February 9, 1897, p. 5.] The people of the state of California, represented in senate and assembly, do enact as follows: Section 1. All railroads operated in this state whose lines of road are wholly constructed at an elevation of five thousand feet, or more, above the level of the sea, shall only be required to maintain and operate their roads, or to run passenger or freight cars thereon, between the . fifteenth day of May, and the fifteenth day of October in each year. An act to compel railroad corporations, or individuals owning railroads, to operate their roads. [Approved April 15, 1880; 1880, 43 (Ban. ed. 205).] Operation of railroads, or forfeiture. Section 1. From and after the completion of any rail- road, or the completion of such portion thereof capable of being operated, it shall be the duty of the corporation, or individual owning the same, to operate it; and upon the failure of said corporation or individual so owning said road to keep the same, or any part thereof, in full operation for the period of six months, its or his right to operate the same in whole or in part, as the case may be, shall be forfeited; and the lands occupied for the purposes of its or his road, so far as the same shall not be operated, shall revert to the original owners, or their successors in interest. A railroad shall be deemed to be in full opera- tion when one passenger train, or one mixed train, is run over it once each day in each direction, and a sufficient number of freight trains to accommodate the traffic on said road. Prevention of operation. Sec. 2. This act shall not be construed to apply to a case where the operation of the road is prevented by the act of God, nor to a case where the operation of said road, together with its branch or trunk lines, does not yield 786 APPENDIX. income sufficient to defray the expenses of maintaining and operating the same in connection with its said branch or trunk lines. * Duty of railroad commisioners. Sec. 3. The railroad commissioners of the state of California shall have the power to examine and determine the question whether said road, together with its said branch and trunk lines, does or does not yield income sufficient to operate the same. Sec. 4. This act shall take effect immediately. An act to create the office of commissioner of transpor- tation, and to define its powers and duties; to fix the maximum charges for transporting passengers and freights on certain railroads; and to prevent extortion and unjust disciimination thereon. [Approved April 1, 1878; 1877-8, 969.] This act, which repealed the previous act of similar character of April 3, 1876, Stats. 1875 6, 783, was super- seded by the operation of the constitution adopted in May, 1879. The following act of 1880 was intended to put the provisions of the constitution in reference to the subject into operation. An act to organize an : define the powers of the board of railroad comi issioners. [Approved April 15, 1880; 1880, 45 (Ban. ed. 207).] § 1. Board of railroad commissioners. § 2.' Salaries— Expenses. § J. Free passes. 5 L Duty of attorney general and district attomej. § 5. LocatioH of office— Sessions of board. § 6. Seal. § 7. Powers of board. § 8. Powers of officers. § 9. Complaints. § 10. When may sue. I n. Rates. § 12. Jurisdiction. § 13. Demands from companies. § 14. Definition. § 15. Salaries, how paid. Board of railroad commissioners. Section 1. The three persons elected railroad commis- ;3ioners, pursuant to the provisions of section twenty-two RAILROADS. 767 Of article twelve of the constitution of this state, con- stitute, and shall be known and designated as, the "board of railroad commissioners of the state of California." They shall have power to elect one of their number president ot said board, to appoint a secretary, to appoint a bailiff, who shall perform the duties of janitor; also, to employ a stenographer, whenever they may deem it expedient. Salaries — ^Expenses. Sec. 2. The salary of each commissioner shall be four thousand dollars per annum; the salary of the secretary shall be twenty-four hundred dollars per annum; the salary of the bailiff shall be twelve hundred dollars per annum, such salaries to be paid by the state of California in the same manner as the salaries of state officers are paid. The stenographer shall receive a reasonable compensation for his services, the amount to be fixed by the state board of examiners, and paid by the state. Said commissioners, and the persons in their official employment when travel- ing in the performance of their official duties, shall have their traveling expenses other than transportation paid, the amounts to be passed on by the state board of ex- aminers, and paid by the state. Said board of railroad commisioners shall be allowed one hundred dollars per month for office rent, and fifty dollars per month for fuel, lights, postage, expressage, subscription to publications upon the subject of transportation, and other incidental expenses, to be paid by the state; provided, that all moneys remaining unexpended at the expiration of each fiscal year shall be returned to the state treasury. Said board is further authorized to expend not "to exceed four hundred dollars for office furniture and fixtures, to be paid by the state. The state shall furnish said board with all neces- sary -stationery rnd printing, upon requisitions signed by the president of said board. Free passes. Sec. 3. Said commissioners, and the persons in their official employment, shall, when in the performance of their official duties, have the right to pass free of charge on all railroads, steamers, ships, vessels, and boats, and on all vehicles employed in or by any railroad or other transportation company er. gaged in the transportation of freight and passengers within this state. T68 APPENDIX. Duties of attorney general and district attorney. Sec. 4. It shall be the dnty of the attorney general, and the district attorney in every county, on request of said board, to institute and prosecute, and to appear and to defend for said board, in any and all suits and pro- ceedings which they or either of them shall be requested by said board to institute and prosecute, and to appear in all suits and proceedings to which the board is a party, shall have precedence over all other business except crim- inal business; provided, that K^aid board shall have the power to employ additional counsel to assist said attorney general, or said district attorney, or otherwise, when in their judgment the exigencies of the case may so require. The fees and expenses of said additional counsel to be determined by the state board of examiners, and paid by the state. Location of office — Sessions of board. Sec. 5. The office of said board shall be in the city of San Francisco. Said office shall always be open (legal holidays and nonjudicial days excepted). The board shall hold its sessions at least once a month in said city of San Francisco, and at such other times and such other places within this state as may be expedient. The ses- sions of said board shall be public, and when held at a place other than the office in the city of San Francisco, notice thereof shall be published once a week for two successive weeks before the commencement of such ses- sion, in a newspaper published in the county, where such session is to be held; and if no newspaper is published in such county, then in a newspaper published in an ad- jacent county. Such publication to be paid by the state in the manner as other publications authorized by law are paid. Seal. Sec. 6. The board shall have a seal, to be devised by its members, or a majority thereof. Such seal shall have the following inscription surrounding it: "Railroad com- mission, stt.te of California." The seal shall be affixed only to, first, writs; second, authentications of a copy of a record or other proceeding, or copy of a document on file in the office of said commission. RAILROADS. 76» Powers of board. Sec. 7. The process issued by said board shall extend to all parts of the state. The board shall have power to issue writs of summons and of subpoena in like manner sm courts of record. The summons shall direct the defendant to appear and answer within fifteen days from the day of service. The necessary process issued by the board may be served in any county in this state by the bailiff of the board, or by any person authorized to serve process of courts of record. Powers of officers. Sec. 8. The secretary of said board shall Issue all pro- cess and notices required to be issued, and do and perform . such other duties as the board may prescribe. The bailiff shall preserve order during the sessions of said board, and shall have authority to make arrests for disturbances. He shall also have authority, and it shall be his duty, to serve all process, orders, and notices issued by said boards, when directed by the president, and make return of the same. Complaints and decisions to be in writing. Sec. 9. All complaints before said board shall be in writing and under oath. All decisions of said board shall be given in writing, and the grounds of the decisions shall be stated. A record of the proceedings of said board shall be kept, and the evidence of persons appearing before siaid board shall be preserved. When may sue. Sec. 10. Whenever the board shall render any decision within the purview and pursuant to the authority vested in said board by section twenty-two of article twelve of the constitution, said board, or the person, copartnership, company, or corporation making the complaint upon which such decision was rendered, is authorized to sue upon such decision in any court of competent jurisdiction in this state. Rates. Sec. 11. Whenever said board. In the discharge of its duties, shall establish or adopt rates of charges for the transportation of passengers and freight, pursuant to thQ CivU Code— 49 m APPENDIX. provisions of the constitution, said board shall serve a printed schedule of such rates, and of any changes that may be made in such rates, upon the person, copartnership, company, or corporation affected thereby; and upon such service, it shall be the duty of such person, copartnership, company, or corporation to immediately cause copies ol 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 during usual business hours. Said board shall also make such further publication thereof as they shall deem proper and necessary for the public good. If the party to be served, as hereinbefore provided, be 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. The rates of charges established or adopted by said board, pursuant to the constitution and this act, shall go into force and effect on the twentieth day after service of said schedule of rates, or changes in rates, upon the person, copartner- ship, company, or corporation affected thereby, as herein- before provided. Jurisdiction. Sec. 12. When Jurisdiction Is, by the constitution, con- ferred on the board of railroad commissioners, all the means necessary to carry it into effect are also conferred on said board, and when In the exercise of jurisdiction within the purview of the "authority conferred on said board by the constitution the course of proceeding be not specifically pointed out, any suitable process or mode of proceeding may be adopted by the board which may appear most conformable to the spirit of the constitution. Demand from transportation commissioner under act of April 1, 1878. Sec. 13. The said board shall, immediately, after enter- ing upon the performance of its duties, demand and re- ceive from the transportation commissioner, appointed under an act approved April first, eighteen hundred and seventy-eight, section nine, chapter one, all public property belonging to the office of said transportation commissiouer, RAILROADS. TTl in his possession, or under his control, and it is hereby made his duty to deliver the same to the said board. Definition of term "transportation companies." Sec. 14. The term "transportation companies" shall be deemed to mean and include: 1. All companies owning and operating railroads (other than street railroads) within this state; 2. All companies owning and operating steamships en- gaged in the transportation of freight or passengers from and to ports within this state; 8. All companies owning and operating steamboats used In transporting freight or passengers upon the rivers or Inland waters of this state. The word "company,'* as used in this act, shall be deemed to mean and include corporations, associations, partnerships, trustees, agents, assignees, and individuals. Whenever any railroad company owns and operates In connection with Its road, and for the purpose of trans- porting its cars, freight, or passengers, any steamer or other water-craft, such steamer or other water-craft shall be deemed part of its said road. Whenever any steamship or steamboat company owns and operates any barge, canal boat, steamer, tug, ferryboat, or lighter, in connection with its ships or boats, the thing so owned and operated shall be deemed to be part of Its main line. Salaries, how paid. Sec. 15. The salaries of the commissioners, secretary, bailiff, and all other officers and attaches in any manner employed by the board of commissioners, and all expenses of every kind created under this act, shall be paid out of any money in the general fund not otherwise appropriated, and the controller of state Is hereby authorized and di- rected to draw his warrants from time to time for such pur- poses, and the state treasurer is hereby authorized and directed to pay the same. Sec. 16. This act shall take effect immediately. An act to limit and fix the rates of fares on street railroads in cities and towns of more than one hundred thousand inhabitants. [Approved January 1, 18T8; 1877-8, 18.] ns AJ»PHSNDIX. Fdates of fare of street railroads. Section 1. No street railroad in any city or town of thia state with more than one hundred thousand inhabitants shall be allowed to charge or collect a higher rate of fare than five cents for each passenger per trip of any distance in one direction, either going or coming, along any part of the whole length rf the road or its connections. Violation and forfeiture. Sec. 2. Every violation of the provisions of section one of this act shall subject the owner or owners of the street railroad violating the same to a forfeiture to the person so unlawfully charged, or paying more than is therein al- lowed to be charged, the sum of two hundred and fifty dollars for each and every instance when such unlawful charge is made or collected, to be recovered by suit in any court of competent jurisdiction; such causes of action shall be assignable, and the action may be maintained by the assignee in his own name, and several causes of action arising out of unlawful charges or collections from dif- ferent persons may be vested in the assignee and united in the same action. Sec. 8. This act shall be in force from its passage. An act relating to the operation of railroads. [Approved March 23, 1893; Stats. 1893, 208.] Section 1. Every railroad company now or hereafter engaged in the business of operating a railroad or rail- roads, by steam motive power, in the state of California, is hereby authorized and empowered to use electricity or steam, or both electricity and steam, for the purpose of propelling cars or trains on such railroad or railroads, or upon any portion thereof; provided, that in incorporated cities and towns having more than five thousand inhabi- tants, authority must first be obtained from the legislative authority of such cit: or town in the same manner in which franchises are granted. Sec. 2. All acts and parts of acts in conflict with this act are hereby repealed. Sec. 3. This act shall take eftect immediately. RAILROADS. 771 An act to limit the time within which franchises or privi- leges for the construction, extension, or operation of street railroads may be granted by boards of super- visors of the several counties, and cities and counties of this state. [Approved February 24, 1893; Stats. 1893, 29.] Section 1. It shall be unlawful for the board of super- visors of any county or city and county, within the ninety days next preceding the date of holding a general election, and within the seventy days next immediately following, including the day of holding such general election, to authorize or pass any ordinance, order, or resolution grant- ing to any person or persons, or association of persons, or corporation whatsoever, any privilege or franchise for the construction, extension, or operation of any street railroad, or extension of time for the construction or opera- tion of any street railroad, over or upon any or part of any street, road, highway, squares, or park within the county or city and county. Sec. 2. Any franchise or privilege granted, or attempted to be granted, in violation of, or contrary to, the provisions of this act shall be absolutely void and of no effect. Sec. 3. All acts or parts of acts in conflict with this act are hereby repealed. Sec. 4. This act shall take effect and be in force from and after its passage. Compare in connection with tlii& act, the act cf 1901, p. 265. An act requiring city, city and connty, or town authorities to exact and require from persons or corporations seeking permission and authority to lay railroad tracks through streets or public highways of any incorporated city, city and county, or town, a satisfactory promise and undertaking to permit and allow mail carriers in the employ of tLe United States government at all times, while engaged in the actual discharge of duty, to ride on the cars of such railroad without paying fare; and to make such promise and undertaking a condition precedent to the granting of such permission and authority by such governing board. [Approved February 27, 1893; Stats. 1893, 44.] T74 APPENDIX. Section 1. In all cases hereafter, where application is made to the city, city and county, or town authorities, or to the trustees, council, or other body to whom is intrusted the government of the city, city and county, or town, for permission and authority to lay railroad tracks through streets or public highways of any incorporated city, city and county, or town, such authorities, before granting such permission and authority, in addition to the terms and restrictions which they "are now, by law, authorized to impose, must exact and require from the persons or cor- poration asking or seeking such permission and authority, a satisfactory promise and undertaking to permit and al- low mail carriers in the employ of the United States gov- ernment, at all times while engaged in the actual dis- charge of duty, -to ride on the cars of such railroad with- out paying any sum of money whatever for fare or other- wise. And such governing body of city, city and county, O- town authorities must make such promise and under- taking on the part of such persons or corporations a con- dition precedent to the granting of such permission and authority to lay railroad tracks through streets or public highways of such city, city and county, or town; provided, that all such permissions and franchises shall be subject to all other provisions of the laws of this state applicable to street railroads in general, and subject to regulations from city, city and county, and town authorities. Sec. 2. This act shall take effect and be in full force from and after its passage. TAXA.TION. An act Imposing a tax on the issue of certificates of stock corporations. [Approved April 1, 1878; 1877-8, 955. Repealed ISn, 243.] TELEGRAPH COMPANIES. Act granting franchise for telegraph company between Asia and America: See Stats. 1871-2, 97. TRADEMARKS. m TRADEMARKS. An act to protect the owners of bottles, boxes, siphons, and kegs used in the sale of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer, or other beverages. [^proved :/[arch 31, 1891; Stats. 1891, 217. Amended 1903, 83.] § 1. Descriptioa to be filed with county clerk. § 2, Unlawful acts. § 3. Use presumptively unlawful. § 4. Issue of search-warrants — Punishment, § 5. Deposit not to be deemed a sale. 5 6. Refiling of marks not required. Section 1. Any and all persons engaged in manufactur- ing, bottling, or selling soda waters, mineral or aerated waters, porter ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer, or other beverages in bottles, siphons, or kegs, with his, her, its, or their name or names, or other marks or devices branded, stamped, engraved, etched, and blown, impressed, or otherwise produced upon such bottles, siphons, or kegs, or the boxes used by him, her, it, or them, may file in the office of the clerk of the county in which hvs, her, its, or their principal place of business is situated, and also in the office of the secretary of state, a description of the name or names, marks or devices, so^used by him, her, it or them, respectively, and cause such description to be printed once in each week for three weeks successively, in a newspaper published in the county in which said notice may have been filed as aforesaid. Sec. 2. It is hereby declared to be unlawful for any person or persons, corporation or corporations, to fill with soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or with medicine, compounds, or mixtures, any bottle, box, siphon, or keg, so marked or distinguished, as aforesaid, with or by tjiy name, mark, or device, of which a description shall have been filed and published, acj provided in section one of this act, or deface, erase, obliterate, cover up, or otherwise remove o: conceal any such name, mark or device thereon, or to sell, buy, grive, take, or otherwise dispose of or traffic in the same, without the written consent of, or unless the 776 APFKNDIX. same shall have been purchased from the person or per- sons, corporation or corporations, whose mark or device shall be or shall have been in or upon the bottle, box, siphon, or keg so filled, trafficked in, used, or handled as aforesaid. Any person or persons or corporation offending against the provisions of this section shall be deemed guilty of a misdemeanor, and shall be punished for the first offense by imprisonment not less than ten days nor more than six months, or by a fine of fifty cents for each and every such bottle, box, siphon, or keg so filled, sold, used, disposed of, bought, or trafficked in, or by both such fine and imprisonment; and for each subsequent offense ty imprisonment not less than twenty days nor more than one year, or by a fine of not less than one dollar nor more than five dollars, for each and every bottle, box, sijhon, and keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, in the discretion of the magistrate before whom the offense shall be tried. Sec. 3. The use by any person other than the person or persons, corporation or corporations, whose device, name or mark shall be or shall have been upon the same, without such written consent or purchase, as aforesaid, of any such mark or distinguished bottle, box, siphon, or keg, a description of the name, mark, or device whereon shall have been filed and published, as herein provided, for the sale therein of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or any article of merchandise, medicines, compounds, or preparations, or for the furnishing of such or similar beverages to customers, or the buying, selling, using, dis- posing of, or trafficking in of any such bottles, boxes, siphons, or kegs, by any person other than said persons or corporations having a name, mark, or device thereon, or such owner without such written consent, or the having by any junk dealer, or dealer in second-hand articles, pos- session of any such bottles, boxes, siphons, or kegs, a description of the marks, namej, or devices wherein shall have been sr filed and published as aforesaid, without such written consent, shall and is hereby declared to be pre- sumptive evidence of the said unlawful use, purchase, or traffic in of such bottles, boxes, siphons, or kegs. TRADEMARKS. 'tfJ Sec. 4. Whenever any person, persons, of corporations, mentioned in section one of this act, or his, her, its, or their agent, shall make oath before any magistrate that he, she, or it has reason to believe, and does believe, that any of his, her, or their bottles, boxes, siphons or kegs, a de- sc-iption of the name marks, or devices whereon has been so filed and published, as aforesaid, are being unlawfully used or filled, or had by any person or corporation manu- facturing or selling soda, mineral, or aerated waters, por- ter, ale, cider, ginger ale, milk, cream, sm'all beer, lager beer, weiss beer, white beer, and other beverages, or that any junk dealer, or dealer in second-hand articles, vender of bottles, or any other person or corporation, has any such bottles, boxes, siphons, or kegs, in his, hei', or its posses- sion, or secreted in any place, the said magistrate must thereupon issue a search-warrant to di-scover and obtain tLe same, and may also cause to be brought before him the person in whose possession such bottles, boxes, siphons, or kegs may be found, and then inquire into the circum- stances of such possession; and if said magistrate finds that such person has been guilty of a violation of section two of this act, he must impose the punishment therein prescribed, and he shall also award possession of the prop- erty taken upon such search-warrant to the owner thereof. Sec. 5. The requiring, taking or accepting of any de- posit for any purpose, upon any bottle, box, siphon, or keg shall not be deemed c constitute a sale of such property, either optional or otherwise, in any proceeding under this act. [Amendment approved March 5, 1903; 1903, 83. In effect immediately.] Sec. 6. Any person or persons, corporation or corpora- tions, that has or have heretofore filed in the offices men- tioned in section one of this act a description of the name or names, marks or devices, upon his, her, their, or its property therein mentioned, and has caused the same to be published according to the laws existing at the time of such filing and publication, shall not be required to again file and publish such description to be entitled to the benefits of this act; and any person or persons, cor- poration or corporations, having complied with the pro- visions of this act may as a part of the sale, assign- ment or transfer of all his, her, their or its said bottlos, 778 APPENDIX. boxes, siphons, or "kegs, used as aforesaid, with his, her, their or its name or names or other marks or devices, branded, stamped, engraved, etched, and blown, impressed or otherwise produced upon such bottles, boxes, siphons and kegs, to any other person or persons, corporation or corporations, engaged in manufacturing, bottling, or selling soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer or other beverages, sell, assign, and transfer the sole and exclusive right of using said name or names, marks and devices iu said business. And in the event of such sale, transfer or assignment as aforesaid, or in the event of the transfer by operation of law or by sale under order of any court of the entire business of such person or persons, corporation or corporations, or of the entire stock of bottles, boxes, siphons or kegs belonging to them, him, her or it, to any person or persons, corpora- tion or corporations, engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, porter, lale, beer, cider, ginger ale, milk, cream, small beer, larger beer, welss beer, white beer or other beverages, such per- son or persons, corporation or corporations, shall not be again required to file and publich a description of said name or names, marks or devices, hereunder, but shall be entitled to all the benefits of this act immediately upon acquiring such bottles, boxes, siphons or kegs or such busine^ as aforesaia. [Amendment approved M^arch 5, 1903; 1903, 83. In effect immediately.] Sec. 7. All acts and parts of acts inconsistent here- with are, for the purposes of this act, hereby repealed. UNINCORPORATBt) S0CIE3TEE'S. See ante, title Co-operative Associations. WAREHOUSES AND WHARFINOEIRS. An act in relation to warehous3 and wharfinger receipts, and other matters pertaining thereto. [Approved April 1, 1878; 1877-8, 949.] ( 1. Issuance of receipts for goods. I 2 Issuing of receipts upon goods as Becttrtty. I S Second receipta, issuance of. WAREHOUSES AND WHARFINGERa 77S S 1 Removal of goods when receipt issued. § 6. Receipts classed. I 6. Receipts to be indorsed. 5 7. No delivery except on order. § 8. Non-negotiable receipts, how mariced. § 9. Loss by fire. § 10. Felony. Issuance of receipt for goods. Section 1. That no warehouseman, wharfinger, or other person doing a storage business, shall issue any receipt or voucher for any goods, wares, merchandise, grain, or other produce or commodity, to any person or persons purporting to he the owner or owners thereof, unless such goods, wares, merchandise, grain, or other produce or commodity, shall have been bona fide received into store by such warehouseman, wharfinger, . or other person, and shall be in store and under his control at the time of issuing such receipt. Issuing of receipt upon goods as security for money loaned. Sec. 2. That no warehouseman, wharfinger, or other person engaged in the storage business shall issue any receipt or other voucher upon any goods, wares, merchan- dise, grain, or other produce, or commodity, to any person or persons, as security for any money loaned, or other in- debtedness, unless such goods, wares, merchandise, grain, or other produce or commodity, shall be, at the time of issuing such receipt, the property of such warehouseman, wharfinger, or other person, shall be in store and under control at the time of issuing such receipt or voucher as aforesaid. Second receipts not to be issued, except, etc. Sec. 3. That no warehouseman, wharfinger, or other person as aforesaid, shall issue any second receipt for any goods, wares, merchandise, grain, or other produce or commodity, while any former receipt for any such goods or chattels as aforesaid, or any part thereof, shall be out- standing and uncanceled. Removal of goods when receipt is issued. Sec. 4. That no warehouseman, wharfinger, or other person as aforesaid, shall sell or encumber, ship, transfer, or in any manner remove beyond his immediate control, 7SP APPENDIX. any goods, wares, merchandise, grain, or other produce or commodity for which a receipt shall have been given as aforesaid, without the written assent of the person or persons holding such receipt or receipts plainly indorsed thereon in ink. Receipts classed. Sec. 5. Warehouse receipts for property stored shall be of two classes: 1. Transferable or negotiable; and, 2. Nontransferable or non-negotiable. Under the first of these classes, all property shall be transferable by the in- dorsement of the party to whose order such receipt may be issued, and such indorsement of the party shall be deemed a valid transfer of the property represented by such receipt, and may be in blank or to the order of an- other. All warehouse receipts for property stored shall distinctly state on their face for what they are issued, as also the brands and distinguishing marks; and in the case of grain, the number of sacks, and number of pounds, any kind of grain; also the rate of storage per month or season charged for storing the same. Receipt to be indorsed. Sec. 6. No warehouseman, or other person or persons, giving or issuing negotiable receipts for goods, grain, or other property on storage, shall deliver said property, or any part thereof, without indorsing upon the back of jsaid receipt or receipts, in ink, the amount and date of the deliveries. Nor shall he or they be allowed to make any offset, claim, or demand other than is expressed on the face of the receipt or receipts issued for the same, when called upon to deliver said goods, merchandise, grain, or other property. No delivery except on order. Sec. 7. No warehouseman, or person or persons doing a general storage business, giving or issuing non-negotia- ble or nontransferable receipts for goods, grain, or other property on storage, shall deliver said property, or any part thereof, except upon the written order of the person or persons to whom the receipt or receipts were issued. Non-negotiable receipts, how marked. Sec. 8. All receipts issued by any warehouseman or other person under this act, other than negotiable, shall have printed across their face, in bold, distinct letters, in red ink, the words **non-negotiable." WATER COMPANIES. 781 Loss by fire. Sec. 9. No warehouseman, person or persons doing a general storage business, shall be responsible for any loss or damage to property by fire while in his or their cus- tody, or provided reasonable care and vigilance be exer- cised to protect and preserve the same. Felony. Sec. 10. Any warehouseman, wharfinger, person or per- sons, who shall violate any of the foregoing provisions of this act, is guilty of felony, shall be subject to indictment, and upon conviction, shall be fined in a sum not exceed- ing five thousand dollars ($5,000), or imprisonment in the state prison of this state not exceeding five years, or both. And all and every person aggrieved by the violation of any of the provisions of this act may have and maintain an action against the person or persons violating any of the foregoing provisions of this act, to recover all dam- ages, immediate or consequent, which he or they may have sustained by reason of any such violation as afore- said, before any court of competent jurisdiction, whether such person shall have been convicted under the act or not. WATER COMPANIES. Irrigation: See General Laws, title Irrigation. An act to regulate and control the sale, rental, and dis- tribution of appropriated water in this state, other than in any city, city and county, or town therein, and to secure the rights of way for the conveyance of such water to the places of use. [Approved March 12, 1885; 1885, 95; 1897, 49; 1901, saj § 1. Use of appropriated pubUc water. § 2. Supervisors may fix rates. § 3. Petition for fixing rates. § 4. Hearing of petition— Value of waterworka, § 5! Rules to be observed in fixing rates. § 6. Changing rates. 8 T. Record of rates to be published. § 8. Water to be furnished at rates fixed. § 9. Penalty for excessive charges. § 10. To seU to all persons. § U. Condemning land for right of way. § 111^. Contracts in existence, how affected. . Use of appropriated water public. Section 1. The use of all water now appropriated, or T82 APPENDIX. that may hereafter be appropriated, for irrigation, sale, rental, or distribution, is a public use, and tne right to collect rates or compensation for use of such water is a franchise, and except when so furnished to any city, city and county, pr town, or the inhabitants thereof, shall be regulated and controlled in the counties of this state by the seyeral boards of supervisors thereof, in the manner prescribed in this act. Supervisors may fix rates. Sec. 2. The several boards of supervisors of this state, on petition and notice as provided in section three of this act, are hereby authorized and required to fix and regu-^ late the maximum rates at which any person, company,, association, or corporation, having or to have appropriated water for sale, rental, or distribution in each of such counties, may and shall sell, rent, or distribute the same. Petition for fixing rates. Sec. 3. Whenever a petition of not less than twenty- five inhabitants, who are tax-payers of any county of this state, shall, in writing, petition the board of supervisors thereof, to be filed with the clerk of said board, to regu- late and control the rates and compensation to be col-s lected by any person, company, association, or corpora- tion, for the sale, rental, or distribution of any appropri- ated water, to any of the inhabitants of such county, and shall in such petition specify the persons, companies, as- sociations, or corporations, or any one or more of them, whose water rates are therein petitioned to be regulated or controlled, the clerk of such board shall immediately cause such petition, together with a notice of the time and place of hearing thereof, to be published in one or more newspapers published in such county; and if no news- paper be published therein, then shall cause copies of such petition and notice to be posted in not less than three public places in such counties, and such publication and notice shall be for not less than four weeKs next De- fore the hearing of said petition by said boara; such no* tice to be attached to said petition shall specify a day of the next regular term of the session of the said board not less than thirty days after the first publication or posting thereof, for the hearing of said petition, which shall impart notice to all such persons, companies, asso- ciations, and corporations mentioned in such petition, and Water companies. t«» all persons Interested in the matters of such petition and notice. Such board may also cause citations to issue to any person or persons within such county to attend and give evidence at the hearing of such petition, and may compel such attendance by attachment. Hearing of petition — ^Value of water-works. Sec. 4. At the hearing of said petition the board of supervisors shall estimate, as near as may be, the value of the canals, ditches, flumes, water-chutes, and all other property actually used and useful to the appropriation and furnishing of such water, belonging to and possessed by each person, association, company, or corporation, whose franchise shall be so regulated and controlled; and shall in like manner estimate as to each of such persons, com- panies, associations, and corporations, their annual rea- sonable expenses, including the cost of repairs, manage- ment, and operating such works; and, for the purpose of such ascertainment, may require the attendance of per- sons to give evidence, and the production of papers, books, and accounts, and may compel the attendance of such persons and the production of papers, books, and ac- counts, by attachments, if within their respective counties. Rules to be observed in fixing rates. Sec. 5. In the regulation and control of such water rates for each of such persons, companies, associations, •and corporations, such board of supervisors may establish different rates at which water may and shall be sold, rented, or distributed, as the case may be; and may also establish different rates and compensation for such water so to be furnished for the several different uses, such as mining, irrigating, mechanical, manufacturing, and do- mestic, for which such water shall be supplied to such inhabitants, but such rates as to each class shall be equal and uniform. Said board of supervisors, in fixing such rates, shall, as near as may be, so adjust them that the net annual receipts and profits thereof to the said persons, companies, associations, and corporations so furnishing such water to such inhabitants shall be not less than six nor more than eighteen per cent upon the said value of the canals, ditches, flumes, chutes, and all other property actually used and useful to the appropriation and furnish- ing of such water of each of such persons, companies, associations, and corporations; but in estimating such net T84 APP3NDIX. receipts and profits, the cost of any extensions, enlarge* ments, or other permanent improvements of such water rights or water-work's shall not be included as part of the said expenses of management, repairs, and operating of such works, but when accomplished, may and shall be in- cluded in the present cost and cash value of such work. In fixing said rates, within the limits aforesaid, at which water shall be so furnished as to each of such persons, companies, associations, and corporations, each of said bo'ard of supervisors may likewise take into estimation any and all other facts, circumstances, and conditions per- tinent thereto, to the end and purpose that said rates shall be equal, reasonable and just, both to such persons, companies, associations, and corporations, and to said in- habitants; and each such board of supervisors shall desig- nate what proportion of the rates so fixed shall be for the said annual reasonable expenses of each of such persons, companies, associations or corporations, and what propor- tion of the rates so fixed shall be for the said net annual receipts and profits to such persons, companies, associa- tions or corporations. The said rates, when so fixed by such board, shall be binding and conclusive for not less than one year next after their establishment, and until established anew or abrogated by such board of super- visors, as hereinafter provided. And until such rates shall be so established or after they shall have been abrogated by such board of supervisors, as in this act provided, the actual rates established and collected by each of the persons, companies, associations, and corpora- tions now furnishing, or that shall hereafter furnish, ap- propriated waters , for sale, rental, or distribution to the Inhabitants of any of the counties of this state, shall be deemed and accepted as the legally established rates thereof. [Amendment approved February 28, 1901; Stats. 1901, p. 80.] Changing rates. Sec. 6. At any time after the establishment of such water rates by any board of supervisors of this state, the same may be established anew, or abrogated in whole or in part by such board, to take effect not less than one year next after such first establishment, but subject to WATER COMPANIES. Itt said limitation of one year, to take effect immediately In the following manner: Upon tlie written petition of in- habitants as hereinbefore provided, or upon the written petition of any of the persons, companies, associations or corporations, the rates and compensations of whose ap- propriated waters have already been fixed and regulated, and are still subject to such regulation by any board of supervisors of this b te, as in this act provided; and upon the like publication or posting of such petition and notice, and for the like period of time as hereinbefore provided, such board of supervisors shall proceed anew, tn the manner hereinbefore provided, to fix and establish the water rates for such person, company, association, or corporation, or any number of them, in the same manner as if such rates had not been previously established, and may, upon the petition of such inhabitants, but not other- wise, abrogate any and all existing rates theretofore estab- lished by such board. All water rates, when fixed and established as herein provided shall be in force and effect until established anew or abrogated, as provided in this act. Record of rates to be published. Sec. 7. Each board of supervisors of this state, when fixing and establishing, or fixing and establishing anew, or abolishing any previously established water rates, as hereinbefore provided, shall cause a record to be made thereof in the records of such board, and cause the same to be published or posted in the manner and for the time required for the publication or posting of said peti- tions and notices. Water to be furnished at rates fixed. Sec. 8. Any and all persons, companies, associations, or corporations, furnishing for sale, rental, or distribu- tion, any appropriated waters to the inhabitants of any county or counties of this state (other than to the in- habitants of any city, city and county, or town, therein), shall so sell, rent, or distribute such waters at rates not exceeding the established rates fixed and regulated there- for by the boards of supervisors of such counties, or as civil Coda— M f%^ APPENDIX. fixed and established by such person, company, association, or corporation, as provided in this act. Penalty for excessive charges. Sec. 9. If any person, company, association, or cor- poration, whose water rates for any county of this state have been fixed and* regulated by a board of supervisors, a3 in this act provided, and while such rates are in force, shall collect, for any appropriated water, furnished to any inhabitant of such county water rates in excess of such established rates, shall be liable, in an action by any such inhabitant so aggrieved, to a recovery of the whole rate so collected, together with actual damages sustained by such inhabitant, with costs of suit. To sell to all persons. Sec. 10. Every person, company, association, and cor- poration, having in any county in the state (other than in any city, city and county, or town therein) appropriated waters for sale, rental, or distribution, to the inhabitants of such county, upon demand therefor, and tender in money of such established water rates, shall be obliged to sell, rent, or distribute such water to such inhabitants at the established rates regulated and fixed therefor, as in this act provided, whether so fixed by the board of supervisors or otherwise, to the extent of the actual sup- pi:^ of such appropriated waters of such person, company, association, or corporation, for such purposes. If any person, company, association, or corporations, having water for such use, shall refuse compliance with such demand, or shall neglect, for the period of five days after such demand, to comply therewith to the extent of his or its rea- sonable ability so to do, shall be liable in damages to the extent of the actual injury sustained by the person or party making such demand and tender, to be recovered, with costs. Condemning land for right of way. Sec. 11. Whenever any person, company, association, or eorporation shall have acquired the right to appro- priated water, or shall have acquired the right to appro- priate such water in this state, such person, company, as- sociation, or corporation, may proceed to condemn tha land and premises necessary to such right of way, under WATER COMPANIES. 787 the provisions of title VII of part III of the Code of Civil Procedure of this state, and amendments ma-de and to be made thereto, and all the provisions of said code, so far as the same can be made applicable, relating to the con- demnation and taking of property for public uses, shall be applicable to the provisions of this act. Contracts in existence, how affected. Sec. 11^. Nothing in this act contained shall be con- strued to prohibit or invalidate any contract already ma-de, or which shall hereafter be made, by or with any of the persons, companies, associations, or corporations described in section two of this act, relating to the sale, rental, or distribution of water, or to the sale or rental of ease- ments and servitudes of the right to the flow and use of water; nor to prohibit or interfere with the vesting of rights under any such contract. [New section, added March 2, 1897; Stats. 1897, 49.] Sec. 12. This act shall take effect and be in force from anfd after its passage. An act authorizing the boards of supervisors of the coun- ties in which water is sold for the purpose of irriga- tion to fix the rates at which water shall be sold. [Approved March 26, 1880; 1880, 16 (Ban. ed. 59.).] S 1. Supervisors to fix rates. § 2. Forfeiture of franchise. § 3. Action to enforce forfeiture. § 4. To compel performance of duties of supervijsoni. § 5. Control of use of water prohibited. Supervisors to fix rates. Section 1. The boards of supervisors of the several counties of this state in which water is appropriated, furnished, and sold principally for the purposes of irriga- tion, are hereby authorized and required to fix the max- imum rates at which such water shall be furnished and soW, at a meeting to be heM in the month of February of each year; provided, that in the year eighteen hundred and eighty such rates shall be fixed at the first meeting after the passage of this act. The rates so fixed and estab- lished shall be in force from and after the first day of July, after the dat^ of fixing said rates, and shall con- tinue in force for the period of one year; provi-ded, tJiat 7M AFKSrNDIX. nothing in this section shall apply to water furnished within the limits of any incorporated city and county, city, or town. Forfeiture of franchise. Sec. %. Any person, company, or corporation collecting rates for water furnished for irrigation in any county in. this state in excess of the rates as provided in section one of this act shall forfeit for the public use the franchise and water-works of such person, company, or corporation to the county in which such excessive rates were charged. Action to enforce forfeiture. Sec. 3. Upon affidavit being made by any interested party, setting forth that any such company, person, or corporation has charged rates for water furnished for irri- gating purposes in excess of the rates established by the board of supervisors, the said board of supervisors shall cause the district attorney to commence an action in the superior court of the county, within thirty days from the receipt by them of such affidavit, to enforce the forfeiture of the franchise and water-works of such person, company, or corporation. To compel the performance of the duties of supervisors. Sec. 4. If the board of supervisors fail or neglect to fix the rates, as provided in section one of this act, or if the board of supervisors fail or neglect to commence the action provided for in section three of this act, as therein pro- vided, any interested person may commence proceedings to compel the performance of such duties. Control of use of water prohibited. Sec. 5. No person, company, or corporation selling water for irrigation shall be permitted to exercise any control as to the use of the water after its delivery to the purchaser. Sec. 6. This act shall take effect immediately. Compare the act of 1885, 95, amended 1897, 49; 1901, 80, to regulate and control sale, rental, distribution, etc, of water, set forth in full, ante. INDEX ABANDONMENT, child abandoned, adoption of, § 2U. Child, by father, custody on, § 197. Child of, what deemed to be, § 224. Child, parent presumed to relinquish on, § 211. Homestead, abandoned how, §§ 1243, 1244. Husband, of, by wife, support, § 175. Marine insurance, in, §§ 2716-2732. Notice not necessary on actual total loss, § 2709. Parent by child, parent not liable for support, § 208. Shipmaster's authority terminated by, § 2381. Ship, of, by master, §§ 2040, 2041. Thing abandoned voluntarily, § 1872. Water, of appropriation of, § 1411. ABATEMENT, legacies, of, § 1362. Nuisance, of, §§ 3484-3503. ABDUCTION, in general, § 49. Of persons in certain relations forbidden, § 49. ACCEPTANCE, accord of, § 1523. Benefit of transaction, of, § 1589. Of guaranty, notice when necessary, § 2795. Of principal, waives interest, when, § 3290. Of rent, renews lease, when, § 1945. Partial performance, of, § 1741. See Contract; Negotiable Instrument, etc. ACCESSION, increase of thing belongs to hirer, § 1926. Ownership of, §§ 732, 1025. Personalty, to, by uniting several different things, § 1025. Personalty, to, increase of thing pledged, § 2989. Personalty, to, inseparable materials, § 1029. Personalty, to, materials of several owners, § 1030. Personalty, to, owner may elect between thing and its value, § 1032. Personalty, to, principal part is what, §§ 1026, 1027. Personalty, to, uniting materials and workmanship, § 1028. Personalty, to, willful trespassers, § 1031. Personalty, to, wrongdoer liable in damages, § 1033. Products of thing belong to hirer, § 1926. 790 ACCESSION— ACCUMULATIONS. Property may be acquired by, § 1000. Realty, to, alluvion, § 1014. Realty, to, avulsion, § 1015. Realty, to, fixtures, § 1013. Realty, to, fixtures removable by tenant, § 1019. Realty, island formed by division of stream, § 1018. Realty, to, island in navigable stream, § lui6. Realty, to, island in unnavigable stream, § 1017. Realty, to, islands, §§ 1016-1018. Realty, to, sudden removal of bank, § 1015. ACCESSORY, lien is, § 2909. Transfer of principal thing passes, ^^ 1084, 3540. ACCIDENT, deposit by, to be accepted, § 1816. Disregarding erroneous parts of writing, § 1640. Trust arising from, § 2224. See Mistake. ACCIDENT INSURANCE: See Insurance; Mutual Insur- ance on Assessment Plan. ACCORD AND SATISFACTION. Acceptance of considera- tion extinguishes obligation, § 1523. Accord defined, § 1521. Accord, effect of, § 1522. Satisfaction defined, § 1523. Satisfaction, part performance in, § 1524. ACCOUNT, assignee for c: editors may be required to, § 3469. Employee's duty to, §§ 1986, 2014. Of voluntary interferer with property, § 2078. Partner must, for profits of adverse business, § 2438. Partner's mutual liability to, § 2412. Servant, by, §§ 2014, 1986. Trustee, requiring to, § 2237. ACCRETION: See Accession. ACCUMULATIONS. Directions for longer term than mi- nority, effect of, § 725. Directions for, to be for benefit of minors in being, § 724. Directions for, when void in part, § 725. Directions for, void unless allowed by code, § 723. Express trust to accumulate rents and profits, § 857. Income, dispositions of, code provisions governing, I 722. ACCUMITLATIONS— ACKNOWUEIKiMEJNTS. 291 Income when directed to support of minor, § 726. Time of commencement of, and termination of, § 724. ACKNOWLEDGMENTS: See Registration. Act curing defects in, § 1207. Action to secure, § 1203. Aflaant to be known to oflScer, § 1185. Apprenticeship contract, § 275, Articles of incorporation, § 292. Assignment for creditors, §§ 3458, 3459. Certificate of, by attorney in fact, form of, § 1192. Certificate of, defective action to correct, § 1202. Certificate to be indorsed 'on, § 1188. Contempt, officer taking, may punish for, § 1201. Conveyances made before code, §§ 1205, 1206. Corporation, acknowledgment of instrument executea by, § 1161. Corporation, form of acknowledgment by, § 1190. Corporation, prerequisites to taking, § 1185. Correcting defective certificate of, action for, § 1202. Correction of, acts legalizing defective acknowledg- ments, p. 665. Declaration of marriage, §§ 77, 79%. Deputy may take, § 1184. Foreign, certificate of clerk to, § 1189. Foreign, form of, § 1189. Foreign, who may take, §§ 1182, 1183. Form of certificate of, by attorney in fact, § 1192. Form of, foreign, § 1189. Form of, general, § 1189. Homestead conveyance or encumbrance, § 1242. Homestead, of declaration of abandonment, § 1243. Homestead,, selection, §§ 1262, 1266. Illegitimate child, acknowledgment of § 1387. Indorsement of certificate on, § 1188. Inventory of wife's property, § 165. Justice of peace, certificate of, authority of, § 1194. Marriage, declaration of, § 77. Marriage settlement, §§ 178-180. Married woman's conveyance, § 1187. Married woman's deed, § 1093. Married woman's power of attorney, § 1094. Mortgages, acknowledgment of, § 2952. Oaths, officer taking, may administer, § 1201. Officers taking, have what authority, § 1201. Partnership, cerUficate of, § 2480. TW ACKNOWLEDGMENTS— ADOPTION. Power of attorney and revocation thereof, § 1216. Prerequisites to taking, § 1185. Proof of execution of instruments not acknowieclged, § 1195. Proof of instrument, action and judgment for, §§ 1203, 1204. Recorded without, what instruments cannot be, § 1161. Recorded without, what instruments may be, §§ 1159, 1160. Requisites for, § 1185. Seals, when officers must affix, § 1193. Signatures, officers must affix, § 1193. Subpoenas, officer taking, may issue, § 1201. What law governs where executed before code, §§ 1205, 1206. Who may take, §§ 1180-1184. Who may take without the state, § 1182. Who may take without the United States, § 1183. Wine, sale of, § 3440. ACQUIESCENCE removes objections, § 3516. ACTION. Action lies to obtain judgment proving instru- ment, § 1203. Pending, not affected by code, § 6. See subject in question. ACT OF GOD, carrier's liability reL ved by, § 2194. Performance of obligation excused by, § 1511. ADEMPTION, advancement or gift, when only an, § 1351. ADJOURNMENT, corporate election, § 314. Corporate meeting, § 312. ADMINISTRATOR: See Executor and Administrator. ADMIRALTY: See Shipping. ADOPTION. Abandoned child, consent not necessary, § 224. Abandonment of child, what deemed to be, § 224.. Adopting parent to be ten years older, § 222. Any minor child may be adopted, § 221. Consent, abandonment of child, not necessary, § 224. Consent, abandonment of child, what deemed to be, § 224. Consent, necessity of, § 224. Consent of child over tw^ve necessary, § 225. Consent of husband or wife, § 223. Consent of mother of illegitimate, § 224. Consent of nonresidents, §§ 224, 226. Consent of parents, § 224. Consent of parents, when not required, § 224, ADOPTION— AFFIDAVIT. ?9S Contract of, how entered into, §§ 226, 227. Effect of, rights and duties of parties, §§ 227, 228. Effect on parents of child, § 229. Illegitimate child, adoption of, § 230. In general, § 221. Name, family, adopted child may take, § 228. Nonresidents, consent of, § 226. One spouse cannot adopt without consent of other, § 223. Order of, § 227. Orphan asylum, from, § 224. Petition for, § 226. Proceedings on, §§ 226, 227. Who may adopt, §§ 221, 222. ADULT, who is an, § 27. CJompensation for support of adult child, § 210. ADULTERY defined, § 93. Divorce, as ground for, § 92. ADVANCEMENT, child, to, effect of, § 1309. Death of heir advanced to before decedent, § 1399. Effect of on distributive shares, §§ 1395, 1399. Less or greater than share, effect of, § 1396. Must be taken toward share in intestate's property, § 1395. Valuation of by decedent binding, § 1398. Value of, determined how, § 1398. What are, § 1398. When only deemed ademption, § 1351. When too much, or too little, § 1396. ADVERSE POSSESSION confers title, § 1007. In general, § 1007. Owner of property in, may transfer, § 104/. Property adversely held may be mortgaged, § 2921. AFFIDAVIT, as to sums contributed by special partners, § 2481. Assignment for creditors, truth of inventory, § 3462. Corporation, on filing articles of, § 295. Mining claims, showing work or posting ^ notices on may be recorded, § 1159. Partnership, fictitious name, aflidavit of publication, § 2471. Partnership, of notice of special, § 2484. Publication of notice of assessment, affidavits of, § 348. Stock, of publication of notice for sale of delinquent. I 348. 794 AFFIDAVIT— AGENCY. Subscription to stock, and paj^ment of ten per cent, affidavit as to, § 295. Transfer of stock by nonresident, affidavit on, § 326 AFFIRMATIONS, officer authopzed to take proof of in^ strument may administer, § 1201. AFTER-ACQUIRED PROPERTY, passes by will, § 1312. AFTER-ACQUIRED TITLE, conveyance passes, § 1106. Inures to mortgagee, § 2930. AGE, majority, age of. See Majority. AGENCY, acts that may be done through agent, §§ 2304. 2305. Actual authority defined, §§ 2316, 2318. Actual authority of factor, § 2368. Actual authority, agent not to exceed, § 2019. Actual authority, extent of, § 2318. Actual, defined, § 2299. Actual or ostensible, agency is, § 2298. Agent, anyone may appoint, having capacity to con- tract, § 2296. Agent, defined, § 2295. Agent must keep principal informed, § 2020. Agent not having authority to contract, § 2346. Agent not to act in own name, § 2322. Agent, rights of person dealing with, without knowl- edge of agency, § 2336. Agent's liability to third persons, § 2343. Agent's obligation to surrender property to third per- son, § 2344. Agent to conform to authority, § 2019. Agent under legal disability, § 2345. Agent warrants his authority, § 2342. Agent, who may be, § 2296. All rights and liabilities accruing to agent accrue to principal, § 2331. Attorney in fact, conveyances by, how executed, § 1095. Auctioneers: See Auctions. Authority, acts within actual or ostensible bind, § 2330. Authority, agent cannot have to defraud principal, § 2306. Authority, agent's necessary, § 2319. Authority, agent warrants his, § 2342. Authority, construction of what partly general and partly specific, § 2321. AGENCY. T95 Authority construed by its specific terms, not by gen- eral, § 2321. Authority, damages for breach of warranty of, § 3318. Authority, exceptions to a general, § 2322. Authority, how may be conferred, § 2307. Authority, incomplete execution of binds principal, when, § 2331. Authority, instrument intended to bind principal does bind him, § 2337. Authority of agent as to persons with notice of re- strictions on, § 2318. Authority of agent, implied, § 2319. Authority of agent, measure of, §§ 2315, 2318. Authority, oral authorization, sufficiency of, § 2309." Authority, representations, power to make, § 2319. Authority, scope of, agent not to define, § 2322. Authority, termination where power coupled with in- terest, § 2356. Authority to sell includes authority to covenant, § 2324. Authority to sell includes authority to warrant, §§ 2323, 2324. Authority that may be delegated to agent, §§ 2304, 2305. Authority to disobey instructions, § 2320. Authority to receive price, §§ 2325, 2326. Authority, what terminates, §§ 2355, 2356. Authority, when to be conferred in writing, § 2309. Authority, whether principal bound when agent ex- ceeds, § 2333. Code provisions governing, subject to what limita- tions, § 2345. Collecting agent's duty, § 2021. Consideration unnecessary, § 2308. Covenants, agent may give, § 2324. Created by ratification, § 2307. Created how, § 2307. Credit, agent's liability respecting, § 2343. Credit, effect of giving exclusive, to agent, § 2335. Damages for breach of warranty of agent's authority, § 3318. Death of agent terminates, § 2355. Death of principal terminates, § 2356. Defined, § 2295. Delegate powers, when agent may, § 2349. Delegation of, §§ 2349-2351. AGKNCT. Delegation, subagent rightfully appointed, original agent not liable for, § 2351. Delegation, subagent rightfully appointed represents agent, § 2851. Delegation, unlawful employment of subagent, effect of, § 2350. Delivery of contract to agent, § 1626. Expiration of term terminates, § 2355. Extinction of subject of, terminates, § 2355. Factors: See Factors. Fraud, agent no authority to defraud principal, § 2306. General agent defined, § 2297. General agent to sell, authority to receive price, § 2325. General authority, does not include what acts, § 2322. General authority, exceptions to, § 2b22. Incapacity of parties terminates, §§ 2355, 2356. Indemnity, agreement of, covers acts of agent, § 2775. Instructions, agent's power to disobey, § 2320. Instrument intended to bind principal does bind him, § 2337. Insurance by agent, form of policy, § 2589. Manager of ship general agent for owners, § 2070. Married woman's power of attorney, § 1094. Measure of agent's authority, §§ 2315, 2318. Minor cannot delegate power, § 38. Mortgage, power of attorney to execute, how executed, § 2933. Negligence of agent, liability of principal, § 2338. Notice of dishonor by agent, § 3149. Notice to agent, when notice to principal, § 2332. Notice to principal, agent has notice of, § 2332. Omissions by agent, principal liable for, § 2338. Oral authorization, suflaciency of, § 2309. Ostensible, agency, when is, § 2300. , Ostensible authority defined, §§ 2317, 2318. Ostensible authority, extent of, § 2818. Ostensible authority of, § 2815. Ostensible authority of factor, § 2369. Ostensible authority, principal not liable for acts under, when, § 2334. Ostensible, defined, § 2300. Ostensible or actual, § 2298. Partners' liability for each other, § 2429. Partner liable as agent, § 2443. Payment to agent, when exonerates, § 2886. AGENCY. m Power of attorney to gratuitous employee, § 1977. Price, authority to receive, §§ 2325, 2326. Principal bound by instrument intended to bind him, § 2337. Principal, how effected by agent's acts within his authority, § 2330. Principal, when bound by incomplete execution of au- thority, § 2331. Principal, whether bound when agent exceeds author- ity, § 2333. Principal, who may be, § 2296. Ratification, creation of, by, § 2807. Ratification not to injure third persons, § 2313. Ratification of agency, § 2307. Ratification of agent's act, how may be made, § 23J0. Ratification of part of transaction, § 2311. Ratification, rescission of, § 2314. Ratification, void, when, § 2312. Real estate agent may give covenant, § 2324. Real estate broker, statute of frauds, § 1624. Renunciation of agency, terminates, § 2355. Representations, power of agent to make, § 2319. ResdBaton of ratification, § 2314, Revocation by principal terminates, § 2356. Rights of person dealing with agent without notice of agrency, § 2336. Scope of, agent not to define, § 2322. Setoff against claim of principal by third person, § 2836. Shipmaster as agent, §§ 2373-2385. Shipmaster's authority, as agent, § 2044. Ship's manager as agent, §§ 2388, 2389. Special agent defined, § 2297. Special agent to sell, authority to receive price, § 2326. Special or general, § 2297. Statute of frauds, §§ 1624, 2309. Subagent, effect of unauthorized appointment of, § 2350. Subagent, liability of, § 2022. Subagent represents principal, § 2351. Terminated by what, §§ 2355, 2356. Termination of, power coupled with interest, § 2356. Third person, agent's obligation to surrender property to, § 2344. Third persons, agent's responsibility to, § 2343. Torts, agent's liability for, to third persons, § 2343. 798 AQENCY— ALLUVION. Torts of agent, liability of principal, §§ 2838, 2389. Trustee's powers as agent, § 2267. Warrant, authority to, included in power to sell, § 2323. AGISTOR'S LIEN, § 3051. AGRICULTURAL FAIR CORPORATIONS, §§ 620, 622. Debts contracted illegally, directors liable for, § 621. Debts not to be contracted beyond amount in treas- ury except for realty, § 621. Debts, power to create for realty, § 621. Fees, limitation upon amount of, § 622. Fees to be provided, in by-laws, § 622. Have no capital stock, § 622. Not conducted for profit, § 622. Real estate, for what purpose to be held, § 620. Real estate, how much may be purchased, leased or sold by, § 620. AIR, easement of, § 801. ALIEN, apprenticeship of, § 274. Inheritance by, §§ 672, 1404. May take, hold and dispose of realty and personalty, § 671. Must appear and claim property within five years, S 672. Nonresident, failure to claim estate,, proceedings in case of, §§ 1405, 1406. Nonresident, property escheats subject to charges, § 1407. Nonresident, interest in estate escheats, when, § 1406. Nonresident, taking by succession, within what time to make claim, § 1404. Property rights of, § 672. ALIENATION: See Conveyance. Condition restraining, eff-ect of, § 711. Future interest, suspending power of, void, § 716. Limitation on power of suspension in estates for years, § 770. May be suspended how long, § 716. Of chattel, real, suspending, § 770. Power of, how long may be suspended, § 716. Power of, when suspended, § 716. Suspension of power of by trust, § 771. Who entitled to income where no disposition of It, § 783. ALIMONY: See Divorce., ALLUVION defined, § 1014. See Accession. Ownership of, i 1014. Al/TERATION— ANlHALa. 7W^^ ALTERATION and cancellation of contracts In general, §§ 1697-1701. Duplicate, alteration of, effect of, § 1701. Duplicate, of, § 1701. Guarantor exonerated by, § 2821. Insurance, alteration of representation, § 2576. Insurance, fire, effect of alteration in, §§ 2753, 2T64. Material, extinction of contract by, § 1700. Verbal, consideration not necessary, § 1697. Verbal contract may be altered by consent, § 169T, Verbal, extinguished by, § 1697. Written, how altered, § 1698. ALTERNATIVE, future interest in the, § 696. Obligations, §§ 1448-1451. AMBIGUITY, wills, in, construction, § 1323. AMENDMENT, articles or certificate of incorporation, of, § 362. AMUSEMENTS: See Theaters. All citizens to have equal rights in public places, { 61. Denial of equal rights, punishment, § 52. Persons may be excluded from when, § 53. Refusal of admission unlawful, § 53. . ANIMALS, action for injuries by dog, knowledge of char- acter of dog need not be shown, § 3341. Care required of borrower, § 1887. Combinations to obstruct sales of livestock prevented, p. 666, Stats. Cruelty to: See Societies for Prevention of Cruelty to Children and Animals. Damages for injuries to, § 3340. Depositary, compr nsation of for parts of ¥^eek, § 1853. Depositary of, duties of, § 1834. Dog killing goats, sheep or poultry, liability of owner, § 3341. Dog injuring sheep or goats may be killed, § 3341. Dogs, protection of goats, sheep and poultry, § 3341. Domestic, subject of ownership, § 655. Game, right to take game and fish, § 802. Killing or injuring goats by dogs, damages for, § 3341. Killing sheep by dogs, damages, § 3341. Lien for keeping, § 3051. Lien in favor of owners of bulls, jacks and stallions used for propagation, p. 738, Stats. Poultry, liability of owner of dog killing, § 3341. Propagation, lien of owner of animal used for, § 3062. Saver of, duty of, § 1865. Saver of, publication of list by, § 1871. 80Q ANIMALS— APPORTIONMJSNT. Saver of, ^praisement and preparation and filing of list, § 1865. Saver of, not to charge compensation, § 1865. Saver of, penalty for failure to comply with statute or surrender property, § 1871. Saver of title vests in after what time, § 18TL There may be ownership of, § 655. Wild, property in, § 656. ANNUITY, commences when, § 1368. Defined, § 1357. Effect of failure of fund, § 1357. Failure of fund, resort to other property, § 1357. ANNUITY INSURANCE: See Mutual Insurance on Assess- ment Plan. ANNULMENT of indenture of apprenticeship, § 276. Of marriage: See Marriage. APPEAL, divorce, revision of order disposing of property, § 148. Order relating to property on divorce, Btibj^Jt to, § 147. APPLICATION of interest, § 1479. Of money transferred to trustee, when one must see to, I 2244. Of performance, § 1479. Of performance, rescission of, § 1479. Of performance, where several obligations, § 1479. Termination of hiring before time, apportionment of hire, § 1935. APPOINTMENT, effect of power of, § 781. No person guardian of estate without, § 242. Of guardian by the court, §§ 243, 244. Of guardian by the court supersedes parent, § 204. Of trustee, how made, § 2287. Of succ^sor to trustee, duty of trustee concerning, § 2260. APPORTIONMENT of burden of servitude on partition of dominant tenwnent, § 807. Of consideration in case of prevention of performance § 1514. Of covenants, § 1467. Of freightage, according to distance, § 2142. Of freightage, by contract, §§ 2140, 2141. Of hire, § 1935. Of lien, § 2912. Of losses occasioned by collision of vessels, f 97X APPRAISEMENT— APPRENTICESHIP. 801 APPRAISEMENT of homestead, §§ 1245-1258. Of property found, § 1865. APPRENTICESHIP. Act relating to masters and appren- tices, § 264, note. Age *to which minor may be bound, § 264. Breach of covenants, action lies within what time, § 273. Breach of covenant, damages, how applied, § 273. Breach of covenant, master liable for, § 273. Death of master, effect of, § 266. Discharge of apprentice, power of ^perior court, § 272. Enticing apprentice, liability for, § 275. Fees, none to be charged where homeless minor ap- prenticed, § 268. Harboring runaway apprentice, liability fcM", § 275. Hearing of complaints of apprentices, § 271. Homeless minor, no fee to be charged, § 268. Homeless minor, provision in indenture as to educa- tion, clothing, etc., § 268. Homeless minors, superior court may bind, § 268. Homeless minors, who may institute proceedings, § 268. Illegitimate child, mother alone can bind, § 265. Illegitimate child, mother marrying, right to bind, § 265. Indenture, delivering and filing of, § 266. Indenture, effect of death of -master. § *266. Indenture, how executed, § 266. Indenture not complying with statute is void, § 266. Indenture of homeless minor, provision as to educa- tion, clothing, etc., § 268. Indenture, what to contain, § 266. Jury trial on incapacity of father where mother con- sents, § 267. Jury trial, who to pay costs of, § 267. Master to keep apprentice within state, § 269. Minor may bind himself when, § 265. Minors who may be bound as. § 264. Misbehavior by apprentice, liability for, § 274. Misbehavior by apprentice, proceedings against, § 274. Misbehavior by apprentice, proceedings against, costs of, § 274. Money, clothes, etc., delivery to apprentice, § 269. Money, clothes, etc., provision as to in indenture, § 268. Mother, consent of, jury trial on incapacity of huaband. § 267. 102 APPRENTICESHIP— ASSIGNMENT. Mother marrying, right of to bind, § 26i). Protection of apprentice, duty as to, § 270. Release of master removing from state or quitting busi- ness, § 276. Superior court may bind homeless minors, § 268. Superior court, power to discharge apprentice, § 272. Superior court to defend apprentice from mistreatment, § 270. Superior court to hear complaints of apprentices, § 2TL Treatment of apprentice, duty to inquire into, § 270. Who may be bound as, § 264. Who may bind minor, §§ 265, 268. APPURTENANCE deemed fixture, when, § 661. Definition of, § 662. Incidents, transfer of, do^ not pass principal thing, § 1084. Irrigation stock appurtenant to land, § 324. Irrigation stock appurtenant to land, how sold, § 324. Land, to, what deemed to be, § 662. Pass by transfer of land, §§ 476, 1084, 3540. Ship to, § 961. ARBITRATION, partner may not submit to, § 2430. Specific performance of agreement for, not, § 3330. ARTICLES OF INCORPORATION: See Corporations; For- eign Corporations. ASSESSMENT INSURANCE: See Mutual Insurance oa Assessment Plan. • ASSESSMENTS: See CoriKxrations. Covenant for payment ot runs with land, $ 1468. ASSIGNMENT, action against street railway for penalty for overcharging of, § 504. By lessor, liability of assignee, § 822. Chose in action, of, § 954. Debt secured by mortgage, of, § 2936. Employees of corporation, act relating to asslgnmoits of wages by, p. 700. Greneral, to indorser excuses notice of dishonor, § 3157. Lease of, rights of landlord against assignee, § 822. Life insurance policy, of, § 2764. Literary property is assignable, § 982. May be oral, when, § 1052. Mere possibility cannot be transferred, § 1045. Mortgage, record of assignment of, as notice, §§ 2954, 2935. Non-negotiable contract may pass by, § 1459. Partner may not make, § 2430. ASSiaNMENT— ASSIGNMENT FOR CREDITORS. 803 :fower to sell in encumbrancer passes to assignee, § 858. Products of the mind, § 980. Warranty of written instrument sold, § 1774. See Transfer. ASSIGNMENT FOR CREDITORS, accounting by assignee. § 3469. Acknowledging, §§ 3458, 3459. Affidavit by assignor, § 3462. Affidavit by assignor, effect of refusal to make, § 3462. . Alteration of, consent of parties necessary, § 3473. Assignee, allowance of expenses, § 3471. Assignee may be elected in place of sheriff, § 3449. Assignee not liable when void, § 3472. Assignee not purchaser for value, § 3460. Assignee, powers of, § 3449. Assignee's compensation, § 3471. Assignee takes subject to rights of third parties, ^ 3460. Assignee, transfer to, by sheriff, § 3449. Assignee without authority until inventory and bond filed, § 3468. Assignment, what to contain, § 3449. Bond of assignee, § 3467. Bond of assignee to be filed before authority com- mences, § 3468. By more than one assignor, § 3464. Cancellation of, not without consent of parties, § 3473. Compensation of assignee, § 3471. Compensation of sheriff, § 3449. Conflict of laws, § 3451. Contingent liabilities may be secured, § 3452. Debts that may be secured, § 3452. Deeds, wh^^ encumbered property sold, § 3468. Dividends to creditors, § 3468. Examination of assignor, § 3462. Exempt property does not pass, § 3470. How made, §§ 3449, 3458. Insolvency defined, § 3450. Insolvency creditor may make, § 3449. Instrumerif of, subscribing recording, etc, § 3458. Insurance on life does not pass, § 3470. Inventory, effect of refusal or neglect to make and file, § 3462. Inventory, fiUng, §§ 3460-3465. Inventory, filing of, effect of want of, § 3465. ASSIGNMENT FOR CREDITORS. Inventory, time to file, § 3461. Inventory to be filed before assignee*s authority commences, § 3468. Inventory, what to contain, § 3461. Inventory, where more than one assignor, § S464. Limitations on, § 3449. Meeting, notice of, § 3449. Meetlrg of creditors, adjournment of, § 8449. Meeting of creditors, majority in amount of demands governs, § 3449. Meeting of creditors, proxy how executed, § 3449. Meeting of creditors, secured creditors not to vote, § 3449. Meeting of creditors, sheriff to preside, § 3449. Meeting of creditors, voting, § 3449. Meeting of creditors, voting may • be in person or by proxy, § 3449. Modification of not without consent of parties, § 3473. Nonresident, by, §§ 3449, 3451. Nonresidents, general assignment by to conform to our statute, § 3451. Nonresident, power to transfer property in state, § 3451. Notice oi meeting of creditors, § 3449. Notice of, to creditors, requiring them to present de- mands, § 3468. Notice to creditors, filing of, § 3468. isotice to creditors, recitals as to, effect of, § 3449. Out of state, §§ 3449, 3451. Partner may not make, § 2430. Passes no better title than assignor has, § 3460. Perish bles, disposal of, § 3468. Preferences, §§ 3451, 3457. Publication of notice of creditor's meeting, §§ 3449, 3468. Real erty, recording act, § 3466. Recording, §§ 3458, 3459, 3463, 3464, 3466. Recording, effect of not, § 3465. Recording where more than one assignor, § 3464. Reserving interest avoids, § 3457. Restrictions on, § 3449. Secured creditor admitted only for balance of debt, unless releases security, § 3468. Secured creditor cannot prove any of debt, when, § 34b8. ASSIGNMENT FOR CREDITORS— ATTACHMENT. 805 Secured creditor cannot vote at meeting without re- leasing security, § 3449. Secured creditor may prove whole debt, how, § 3468. Secured creditor, release of right of redemption, § 3468. Secured creditor, sale of the property, § 3468. Sheriff, bond of, § 34$7. Sheriii s fees and expenses, § 3449. Sheriff's liability on official bond, § 3467. Sheriff's transfer to assignee, recitals in prima facie, § 3449. Sheriff to hold property, § 3449. Sheriff, to what sheriff to be made, § 3449. Sheriff, transfer by to be acknowledged and recorded, § 3458. Sheriff, transfer by to be in writing, § 3458. States- '^nt of creditor's demand, § 3449. Subscribing, § 3458. Surrender of books, papers and vouchers to assignee, court may order, § 3462. Third parties, assignee takes subject to rights of, § 3460. To what sheriff to be made, § 3449. Transfer by nonresident not affected by provisions concerning, § 3451. Verification of, § 3462. Void, when, § 3457. Who may make, §§ 3430, 3449. Writing, must be in, §§ 3458, 3459. ASSOCIATION: See Boards of Trade; Chambers of Com- merce; Co-operative Associations; Corporations; Mechanics' Institute; Pioneer Society; Protec- tive Associations; Friendly Society. Benefit and relief associations, act relating to, p. 678. Building and loan associations, act relating to, p. 681. Protective, act validating acknowledgments, p. 665. ASSURANCE, executory contract of sale binds seller to give covenant to further, § 1733. ASYLUMS, orphan, managers may consent to adoption, when, § 265. ATTACHMENT, lien of officer, § 3057. Mortgaged personalty, §§ 2968-2970. Mortgaged property, how attached, § 2969. Mortgaged property, sale of and disposition of pro- ceeds, §§ 2968, 2970. 806 ATTORNEY— AWARD. ATTORNEY. Negotiable instrument may provide for at- torney's fees, § 3088. ATTORNEY GENERAL, duty of, when alien heir does not claini, § 1405. Duty to collect penalty where railroad raises rates, § 494. Inquiry into right of co-operative business association to do business, § 653k. May inquire into corporations, § 382. Proceedings where succession to estate not claimed, §§ 1406, 1406. ATTORNEY IN FACT, certificate of acknowledgment by, form of, § 1192. How to convey realty, § 1095. Revoking power of, § 1216. ATTORNMENT of tenant to stranger, § 1948. To landlord on grant of rent, reversions or remainders, § nil. AUCTION, autioneer has what authority from bidder, § 2363. Auctioneer has what authority from seller, § 2362, Bids by seller or agent, when void, § 1796. Bid, withdrawing, § 1794. By-bidding, § 1797. Defined, § 1792. Delinquent stock, sale of, § 341. Five days' notice of sale of stock in trade at, to be recorded, § 3440. Memorandum, auctioneer, authority of, to sign, § 2363. Memorandum of sale, auctioneer's, effect of, § 1798. Pledge, sale of to be by auction, § 3005. Sale complete, when, § 1793. Sale under written conditions, modifying, § 17S5. Sale without reserve, rights of buyer, § 1796. Statute of frauds, memorandum by auctioneer satisfies, § 1624. AUTHOR, property of, in writings, §§ 980-985. See Literary Property. AUTHORITY, joint, construction of words giving, § 12. Of particular persons: See particular title. AUTOMOBILES, franchises for roads for, § 524. AVERAGE: See General Average. AVULSION, in general, § 1015. AWARD: See Arbitration. fiAOGAGE— BANK. 8M BAGGAGE, amount of, for each passenger, § 2180. On freight train, § 483. Railway, checks to be affixed to, § 479. Sale of, by innkeeper for storage, § 1862. See Carriers. BAIL, defined, § 2780. Indemnity in legal proceedings, sureties on, called ball, § 2780. Obligations governed by statutes specially applicable, § 2781. See Indemnity. BAILMENT, gratuitous depositary, creditor is when, § 1505. See Deposit; Depositary; Hiring; Loan; Warehouse- man. BANK, banking corporation, election to have capital stock, § 200. Book showing stockholders, § 321. Capital, amount to be paid up, § 580. Capital, amount paid up, publication of, § 583a. Capital stock, amount of required, § 580. Capital stock, amount to be paid "on, § 580. Capital stock, advertisement or statement as to, to show amount paid up, § 583a. Capital stock, all to be subscribed before certiflcate issued, § 580. Capital stock, proceedings on electing to have, § 300. Certificate of deposit negotiable, §§ 3095, 3261. Deposits, unclaimed, statements of to be published, pp. 674, 675, Stats. Dissolution and winding up of, p. 676, Stats. Dividends, from what only to be paid, § 300. Dividends, limitation upon power to pay, § 300. Dividends, power to declare, § 583. Foreign banking partnership, fictitious name, § 2467. Lien of banker, § 3054. Misdemeanor, advertisement or statement as to capital stock without showing amount paid up is, § 583a. Misdemeanor, persons engaged in banking guilty of unless true names shown, § 582. Notice showing names of directors and number and transfer of shares, § 321. Powers and rights of banking corporation, § 300. Savings: See Savings and Loan Corporations. Statute concerning persons and corporations engaged in banking repealed, p. 674. Surplus and reserve fund, creation of, § 583. 808 BANK— BENEFIT CORPORATIONS. Surplus and reserve fund, conversion into paid-up capital stock, § 583. Surplus and reserve fund, restoration of after conver- sion to capital stock, § 583. ^Tue names of persons engaged in banking to be sliown, § 582. tJnclaimed deposits, banks to publish statement of, pp. 674, 675, Stats. Winding up and dissolution of, p. 676, Stats. See Corporations; Savings and Loan Corporations. BANK COMMISSIONER, land and building corporation, report of, § 644. Land and building corporations subject to, § 647. BANK NOTE negotiable, §§ 3095, 3261. Negotiable after payment, § 3261. BASTARD, acknowledging, and receiving into family, § 230. Acknowledgment of, effect of, § 1387. Acknowledgment of, inheritance' by and from in case of, § 1387. Adoption of, §§ 224, 230. Children legitimate where divorce granted or marriage annulled, § 1387. Custody and earnings of, mother entitled to, § 200. Heir to mother, § 1387. Heir to one acknowledging himself to be father, § 1387. Inheritance by, § 1387. Inheritance from, § 1388. Legitimation of, § 230. Legitimized by marriage of parents, § 215. Proof of illegitimacy, § 195. See Legitimacy. BELL, sounding, duty and liability of railroad respecting, § 486. BENEFICIARY: See Trusts. BENEFIT, consent of party entitled to, necessary to trans- fer of burden, § 1457. He who takes must bear burden, § 3521. Voluntary acceptance of, is assumption of, § 1589. BENEFIT CORPORATIONS: See Religious, Social, and Benevolent Corporations. Act relating to, § 678, Articles of incorporation, what to set out, § 594. Consolidation of debts by several corporations other than for profit, § 605. Consolidation of debts by several corporations other than profit, procedure for, § 605. BENEFIT CORPORATIONS— BOARDING-HOUSE KlEEPER. 809 Cumulative voting, § 307. Directors or trustees, number of, §§ 290-305. Fraternal societies exempt from insurance laws, § 451. Insurance, mutual life, etc., §§ 437-452. Records to be open to inspection, § 378. BENEFIT SOCIETIES: See Mutual Benefit and Life Asso- ciations; Mutual Insurance on Assessment Flan. Not governed by laws relating to mutual assessment corporations, § 453p. BENEVOLENT ASSOCIATIONS and their incorporation, §§ 593-604. Bequests to, limitation on power to make, § 1313. Not insurance corporations, § 451. See Benefit Corporations; Religious, Social, and Benevolent Corporations. BICYCLE as baggage, § 2181. BIGAMY, ground for nullifying marriage, § 82. BILL OF EXCHANGE: See Negotiable Instruments. BILL OF LADING, any reasonable number to be given consignor, § 2130. Assignment of, §§ 2127, 2128. Carrier may demand surrender before delivery, § 2132. Carrier not liable for more than value stated in, § 2200. Conditions in limiting liability, § 2176. Consignor entitled to, § 2130. Defined, § 2126. Delivery according to, exonerates carrier, § 2131. Effect of accepting from carrier, § 2176. Effect of on carrier's rights and duties, § 2129. Indorsement and transfer of, §§ 2127, 2128. Indorsement, delivery without, § 2128. Limitations in, effect of, § 2176! Limitations in, signature when necessary, § 2176. Negotiable, §§ 2127, 2128. Refusal to give, effect of, § 2130. Surrender of, carrier may demand before delivery, § 2132. Title to freight passes to indorsee, § 2127. To be given consignor, § 2130. Transfer of by delivery, § 2128. BILL OF SALE, § 1053. BILLS AND NOTES: See Negotiable Instruments. BISHOP, religious corporations, § 602. BLANK. Liability of one signing instrument in blank, § 8125. BOARDING-HOUSE KEEPER: See Innkeepers, 810 BOARDS OT TRADE— BOTTOMRT. BOARDS OF TRADE, act providing for formation of, p. 689. Act validating acknowledgments by, p. 665. See title "Chambers of Commerce, Boards of Trade and Mechanics' Institutes." BONA FIDE PURCHASER, apparent principal cannot show he is surety against, § 2382. . Contract not reformed as against, § 8399. Grant of property subject to trust, when deemed abso- lute, § 869. Implied or resulting trust not to affect, § 856. Mortgagee, rights against unrecorded conveyance, § 1214. Presumption in* favor of on purchase of property from husband or wife, § 164. Revocation of gift causa mortis, effect on, § 1151. Rights of as against unrecorded instrument, §§ 1107, 1214. Specific performance in case of, § 3395. Title of from one claiming by succession, effect of will, § 1364. BOND, cemeteries may issue, § 611. Corporations for giving, act governing, p. 680. Indemnity on transfer of stock by nonresident, § 826. Issue by corporation, restrictions upon, §§ 859, 456. Negotiable, § 8095. Nonresidents, on transfer of stock, § 826. Railroad may issue, § 456. Railroad, sinking fund to pay, § 457. Savings and loan corporations may invest in what, § 574. See Guaranty; Indemnity; Suretyship. BOOKS, mining corporation, of, open to inspection, p. 749, 'Stats. Of corporation: See Corporations, XI. BORROWER: See Hiring; Loan. BOTTOMRY defined, § 3017. Due, loan becomes, when, § 8026. Fraudulent conveyance, delivery, § 3440. Insurable interest is reduced by, § 2660. Interest, court may reduce rate if exorbitant, S 3022. Interest, rate of, § 3022. Is subject to law of liens, § 2877. Laches, lien lost by, § 3027. Lender's rights when no necessity of bottomry existed, ( 8028. BOTTOMRY— BRIDGE, ETC., CORPORATIONS. 811 Lien is independent of possession, § 3027. Lien lost, how, § 3027. Lien, priority over others, § 3028. Master may hypothecate freight money, when, § 3021. Master may hypothecate ship, when, §§ 3019, 3020. Not affected by law of mortgages, § 2942. Owner's right to hypothecate ship, § 3018. Owner may hypothecate freightage, § 3018. Personal liability, stipulation for, void, § 3024. Preference over other liens, § 3028. Priority between bottomry liens, § 3029. Priority of lien, § 2897. Recovery in case of total or partial loss, § 3028. Recovery of money loaned, § 8025. See Respondentia. BOUNDARY, coterminous owners bound to maintain, § 841. Road as, § 831. Street as, § 831. Transfer of land bounded by highway passes what, § 1112. Waters as, rights of owners, § 830. Ways, as § 831. BREACH OF PROMISE, chastity, want of, justifies, § 62. To marry, damages for, § 3319. BRIDGE, duty of wagon road corporation concerning, § 514. Statutes governing bridge corporations apply where owned by individual, § 531. Water company's duty to maintain, § 551. . BRIDGE, FERRY, WHARF, CHUTE AND PIER COR- PORATIONS. Annual report, penalty for failure to make, and action by district attorney for, § 580. Annual report, president and secretary to make, § 530. Annual report, publication of, § 530. Annual report, what to contain, § 530. Corporate existence ceases, in what contingencies, § 529. Franchises, when forfeited, § 529. - Nonuser, effect of, § 529. Report, failure to make, penalty for, § 530. Report, failure to make, proceedings in case of, § 580. Report, publication of, § 530. Report to be made annually, § 580. • Report, what to show, § 530. 812 BROKER— BUILDING AND LOAN CORPORATION. Report, who to make, § 530. Statutes relating to apply where bridge, ferry, wharf, chute, or pier built by private individual, § 581. Tolls not to be taken until supervisors grant author- ity, § 528. Works to be completed and in running order, in what time, § 529. BROKER, real estate, statute of frauds, § 1624. See Agency. BUILDING AND LOAN CORPORATION, arrearage, effect of, § 639. Arrearage, notice of, § 639. , Articles to set forth what, § 633. Bank commissioners' power over, § 647, Bank commissioner's report of, § 644. Borrowing money, § 641. Capital stock, § 634. Certificate of stock, § 634. Certificates of stock, prior and new series, § 634. Commissioners of, act creating and prescribing powers and duties, p. 681. Definition of, § 648. Dues, liability for default in paying, § 634. Dues of stockholders, § 634. Election to continue in business under code proceed- ings on, § 646. Exemption of shares from execution, § 643. Fees, entrance and transfer, § 634. Foreign, deposit by as guaranty fund, and disposition thereof, § 645. Foreign, penalty for noncompliance with statute, § 645. Forfeiture for arrears in payment, § 639. Formation and organization of, § 633. Free shares defined, § 634. Free shares, payment of, § 636. Free shares, retiring, § 635. Interest, § 634. Interest, rate of, § 638. Lease of its property, § 640.. Loan, repayment, § 638. Loans, how and from what made, § 637. Loans, security that must be given for, J 633, Losses, apportionment, § 642. Matured and canceled stock, § 634. BUTLDING AND LOAN CORPORATION— BY-LAWS. 813 Maturity of stock, § 636. May purchase realty on which it has mortgage or in- cumbrance, § 640. Membership, and eligibility to, § 643. Minor may hold shares, § 643. Mortgage of its property, § 640. Payment of matured shares, § 636. Perjury in making reports, § 644. • Pledged shares, defined, § 634. Pre-existing, proceeding to continue existence of, § 646. Premium, § 637. Profits, apportionment of, § 642. Realty, sale, lease, or mortgage of, § 640. Report, annual, to bank commissioners, § 644. Reports, liability for not making, § 644. Reports other than annual, § 644. Taxation on issuance of certificates, § 648^. What included in terms, § 648. Withdrawal or surrender, notice of, § 638a. Withdrawal or surrender, right of, § 638a. Withdrawal or surrender, stockholder to receive what amount, § 638a. Withdrawals to be paid in succession, § 638a. See Savings and Loan Corporations. BULLS. Lien of owner of bull used for propagation, p. 738, Stats. BURDEN, consent of party entitled to benefit necessary to transfer of, § 1457. He who takes benefit must bear, § 3521. Voluntary acceptance of benefit is assumption of> § 1589. BURDEN OF PROOFp to invalidate consideration, § 1615. BURIAL, right of, §§ 801, 802. See Cemetery. BUSINESS, goodwill of: See Goodwill. BUSINESS ASSOCIATIONS: See Co-operative Business Associations; Co-operative Business Corpora- tions. BUSINESS CORPORATIONS: See Cooperative Business Corporations. BUSINESS DAYS, what are, § 9. BUTTE COUNTY, tolls in, § 514. BY-LAWS: See Corporations. 814 CANAL CORPORATION— CARRIER. CANAL CORPORATION, §§ 548-552. CANCELLATION and alteration of contracts, in general, §§ 1697-1701. Acceptance of bill of exchange, cancellation of, § 31S8. Deed of, does not revest title, § 1058. Extinction of contract by, §§ 1699, 1700. In part, § 3414. Instrument obviously void, whether canceled, § 3413. Instruments, of, in general, §§ 3412-3414. Will, of, §§ 1292, 1293. Written instrument, when canceled, § 3412. CARE: See Negligence. Great, borrower to use, § 1886. Great, carrier of messages for reward, § 2162.' Great, employee for his own benefit, § 1979. Great, shipmaster, § 2043. Ordinary, carrier of property for reward, § 2114. Ordinary, depositary for hire to use, § 1852. Ordinary, employee for reward, § 1978. Ordinary, gratuitous carrier of persons, § 2096. Ordinary, hirer, § 1928. . Ordinary, trustee, § 2259. Ordinary, voluntary agent, § 2078. Slight, gratuitous carrier of property, § 2114. Slight/gratuitous depositary to use, § 1846. Slight, gratitous employee, § 1975. Utmost, carrier of messages by telegraph, § 2162. Utmost, carrier of persons for reward to use, § 2100. CARELESSNESS: See Negligence. CARGO: See Shipping. CARRIER, act of God relieves of liability, § 2194. Bill of lading: See Bill of Lading. Care and diligence required of, generally, § 2114. Chattel mortgage of property of, to be recorded where, § 2961. Common, who are, § 2168. Common, defined, § 2168. Compensation, § 2173. Compensation, payment of in advance, § 2173. Compensation, refusal to pay, § 2173. Connecting carrier, accepting freight for point beyond route, duty, § 2201. Connecting, proof in case of loss of through freight, § 2202. CAHRIEK. " «i5 Consignee defined, § 2110. Consignee's refusal to accept and remove, storage, § 2121. Consignor defined, § 2110. Contract of carriage defined, § 2085. Damages for not receiving freight, etc., § 3315. Delay, damages for, § 3317. Delay, liable for, on, when negligent, § 2196. Delay, liable only when caused by want of ordinary care, § 2196. Delay of freight, when only liable, § 2196. Delays, unreasonable, carriage to be without, § 2104.* Delivery according to bill of lading exonerates carrier, § 2131. Deliver, carrier may demand surrender of bill of lad- ing before, § 2132. Delivery in part, apportionment of freightage, §§ 2140, 2141. Delivery, liability for nondelivery, § 3316. Delivery not made, how carrier may exonerate himself, § 2121. Delivery not made, obligations of carrier, § 2120. Delivery of freight, manner of §§ 2118, 2119. Delivery of freight, place of, §§ 2118, 2119. Delivery to connecting carrier, § 2201. Delivery to holder of bill of lading exonerates, § 2131. Exemption from liability, none when negligent, § 2195. Expense of transportation of thing sold, § 1755. Freight, arrival notice, duty and liability of carrier after, § 2120. Freight defined, § 2110. Freight, delivery to holder of Mil of lading exonerates, § 2131. Freight, not accepted, storage by carrier, § 2121. Freight not delivered, obligations of carrier, § 2120. Freight, notice of deposit in warehouse, § 2121. Freight, obligation to accept, § 2169. Freightage, additional on carriage farther or nK»-e expeditiously than agreed, § 2143. Freightage, apportionment according to distance, § 2142. Freightage, apportionment by contract, §§ 2140, 2141. EYeightage, consignee liable for, when, § 2138. Freightage, consignor liable for, when, § 2137. Freightage defined, § 2110. Freightage for natural increase of freight, § 2139. Freightage, lien for, §§ 2144, 2204. Freightage, marine insurance, §§ 2661-2668, 816 CARRIER. Freightage, right to on receiving freight short of its destination, § 2142. Freightage, sale of perishables for, § 2204. Freightage, to be paid when, § 2136. General average: See Greneral Average. Gratuitous, diligence required, § 2114. Gratuitous, obligations of, §§ 2089, 2090. Inland carrier, liability of, § 2194. Inland carrier, liability of, what excuses, S 2194. Inland, is what, § 2087. Insurable interest of, § 254S. Jettison: See Jettison. Kinds of, § 2086. Liability of, § 2194. . Liability of, what excuses, § 2194. Limitation can be made special contract, § 2174. Limitation of liability, fraud, not allowed in case of, § 2175. Limitation of liability, n^ligence, not allowed in case of, § 2175. Limitation of liability, willtul wrong, not allowed in case of, § 2175. Limitation on liability, assent to be written, when. § 2176. Limitation on liability, assent to on accepting bill of lading, § 2176. Limitation on liability, cannot be by general notice, § 2174. Limitation on liability without notice of value, §| 2177, 2200. Limiting Uability, §§ 2174-2176. Loss of freight, carrier not liable for, when, $ 2194. Loss of freight, carrier's liability for, § 2194. Loss of valuable papers OllAT10NS, V. Amenxiiiig articles or certificate of incorporation, mode of, § 362. Amendment, defects in articles cannot be cured by, § 362. Amendment, filing amendment, § 362. Amendment, limitations on right of, § 362. Amendment, mode of, § 362. Amendment, notice of to be published if requisite assent not obtained, § 362. Amendment, right of, § 362. Amendment of articles, capital stock cannot be dimin- ished by, § 362. Certificate that articles are filed, § 296. Certified copy of, prima facie evidence, § 297. Copy to be filed in county where property purchased or held, § 299. Copies filed have same effect in evidence as originals, § 299. Copies to be filed in counties where property held, § 299. Failure to file, effect of, § 299. Filed, time within which to be, § 299. Filing, amount required to be paid in, § 293. Filing, damages for failure to file copy of in county where property held, § 299. Filing in wrong county, effect of, § 363. Filing in wrong, proceedings for withdrawal and re- filing in proper county, § 363. Filing, prerequisites to, §§ 293, 294. Qualifications of signers, § 292. Filing, to be filed with county clerk and secretary of state, § 296. Instrument creating called, § 289. Not to issue unul affidavit of subscription filed, § 295. Number of subscribers, § 292. Stock subscribed, articles to set forth amount of, § 290. Subscription, amount of, as prerequisite to filing ar- ticles, § 293. Subscription and acknowledgment of, § 292. Time of filing, § 299. To contain what, §§ 290, 291. V. Term of existence; extension of. Extension of existence, filing certificate of, § 401. Extension of existence, limited to fifty years, § 401. Extension of existence, how effected, § 401. Term of existence, § 2d0. i CORPORATIONS, VI. VU. 843 VI. By-laws. Amended how, § 304. Book of, to be open to inspection, § 304. Certifying of, § 304. Copying into book of, § 304. Delegating power relating to, to directors, § 304. How adopted and by whom, § 301. May provide for what, § 303. New, adopting of, § 304. Penalty for viola i ng, § 303. Proceedings for adoption of, § 301. Quorum of stockholders, by-laws may provide for, § 303. Recording, § 304. Recorded how, § 304. • * Repealed how, § 304. Time for adoption of, § SOI. To be certified, § 304. To be certified and copied in book of records before effective, § 304. VII. Directors. Amount of stock to be held by, § 305. Contracts to relieve from liability, void, § 327. Control of where no capital stock, § 305. Duties of, § 305. Election of new, on removal of old, § 310. Election, notice of, § 302. Election of new board, § 310. To be elected annually, § S02. Election, time of where no provision in by-laws, § 302. From whom chosen, § 305. * Increase and decrease in number of, § 290. Inhibitions on, § 309. Liability for creating excessive indebtedness, § 309. Majority a quorum, § 308. Majority of quorum control, § 308. Majority must be residents of state, § 305. ' May be removed by two-thirds vote, § 310. Must perform duties, § 308. Not to be less than three, § 290. Number of, §§ 290, 305. Number of, where formed to erect and maintain halls, § 290. Number and term of, in social corporations, §§ 290, 305. Organization of board of, § 308. Personal liability, § 309. 4 CORPORATIONS, VIII. EX. Personal liability, limitation of actions on, § 309. Qualifications of, § 305. Quorum necessary to transact business, § 305. Removal from oflfice, proceedings for, § 310. To be stockholders or members, § 305. Trustees, contract to relieve from liability void, § 327. Vacancy, filled how, § 305. Who may be, § 305. VIII. Officers other than directors; employees. False certificates, reports, or notices, oflBcers liable for, § 316. Frauds and misrepresentations by oflacers, penalty for, p. 695, Stats. 1877-8. Vacancies may be filled at meetings called by consent, § 318. Wages, assignment by employee, act relating to, p. 700. Wages, manner of payment of, p. 700, Stats. Wages of laborers and mechanics, act providing for, § 699. iX. Elections. Adjournment of, § 314. By-laws may prescribe rules of, §§ 303-312. Comnlaints respecting and proceedings thereon, § 315. Conduct of, § 307. Corporations not for profit, § 312. Cumulative voting, § 307. Cumulative voting, election void if right of, denied, § 307. Cumulative voting, provisions apply to corporations formed outside of state, § 307. Eligibility of voters, § 312. ' Irregular, effect of, § 312. Lunatic's stock represented how, § 313. Majority of stock what constitutes where stock held by corporation, § 344. Majority of subscribed capital stock or members to be represented, § 312. Minor's stock represented how, § 313. New directors, election of on removal of old, § 310. Not Held at appointed time, calling another, §§ 312, 314. Notice of, § 302. Postponement of, § 314. Proxies, for what time valid, § 321b. Proxies, how executed, § 321b. Proxies, revocable, § 321b. CORPORATIONS, X, XI. M6 Proxies, time, by-law in corporation without stock may prescribe, § 321b. Proxies, who may act, by-laws of corporation without stock may prescribe, § 321b. Proxy by married woman, § 325. Stock of decedent represented by executor, § 313. Time for, where no provision in by-laws, § 302. Voidable when and how set aside, § 312. Voters, qualifications of, § 312. Votes, avoided how, § 312. Voting manner of, § 307. Voting, manner of where no capital stock, § 307. Voting may be by proxy or in person, § 307. Who may vote, § 312. X. Meetings. Adjournment of, § 312. Application to justice of peace to call, § 311. Ayes and noes to be taken and entered on request, § 377. By consent is valid, § 317. By consent, what proceedings may be transacted, § 318. By-laws may provide for, § 303. Control of, where no capital stock, § 305. Justice of peace may direct calling, when, § 311. Notice of meetings to be published in what papers, § 303. Notice of meeting to create or increase bonded indebt- edness, § 359. Notice of meeting to Increase or diminish capital stock, § 359. Notice of meeting to remove directors, § 310. Protests of members to be entered on request, § 377. Quorum necessary, § 305. Removal of directors, how called, § 310. Special, when and how called where no provision in by-laws, § 320. To be held where, § 319. Where all members present and consent, § 317. XL Records, books and journals. Book, stock and transfer, how kept, § 378. Book of directors and stockholders, keeping for in- spection, § 321. Journal of proceedings, what and how kept, § 377. Record of ayes and noes and protests to be entered on request, § 377. Records of what and how kept, § 377, Ml CORPORATIONS, XII. Records, stock and transfer book, how kept, § 378. Records to be open for inspection, §§ 377, 378. XII. Powers; contracts; changing residence; bonded debt; transferring business, property or fran- chises. Acknowledgment by, prerequisites to taking, § 1185. Acknowledgment of instrument by, § 1161. Acknowledgment, affiant to be known to officer, § 1185. Acknowledgment, form of, § 1190. Act authorizing corporation to own business house, p. 710. Bequests to, restrictions on power to make, § 1313. Bonded indebtedness, proceedings to create or In- crease, § 359. Bonds, corporations for giving, act relating to, p. 680. Bonds, restrictions upon issue of, § 359. Business or property, transfer of as a whole, consent of two-thirds of stockholders, § 361a. Business or property, transfer of as a whole, consent of stockholders, how expressed, § 361a. Certificate of place where summons may be served, § 1163. Certificate of place where summons may be served, affidavit on change of residence, § 1163. Change of principal place of business, corporation has right of, § 321a. Change of principal place of, proceedings on, § 321a. Change of principal place of business, filing of resolu- tion authorizing, with affidavit of publication of notice, § 321a. Consolidated bonded indebtedness by several corpora- tions, creation of, § 359. Consolidated bonded indebtedness by several corpora- tions, limitation upon, § 359. Consolidation of debts by corporations other than for profit, § 605. Debts beyond subscribed capital stock, directors must not create, § 309. Debt, liability of director creating excessive, § 309. Debts, limitation on power to create, § 309. Executor, receiver, trustee, etc, act authorizing cor- poration to act as, p. 702. Foreign country, sale of property, franchises or con- cessions in, § 364. Form of acknowledgment by, § 1190. CORPORATIONS, Xlll. ^ Franchise, transfer of, consent of stockholders holding two thirds of issued capital stock necessary, § 361a. Franchise, transfer of, consent of stockholders, how expressed, § 361a. Franchise may be sold on execution against, § 388. Franchise, sale of under execution, duties and liabili- ties, § 391. Franchise, sale under execution, where made, § 393. Franchise, sold under execution, redemption, § 392. Misnomer of, does not invalidate instrument, § 357. Powers of, banking prohibited, § 356. Powers of, enumeration of, § 354. Powers of, limitation on, § S55. Real property, corporation may acquire, and how much, § 360. Real prr^perty, how acquired, § 360. Realty on which business carried on. how acquired, § 363. Realty on which business carried on, right to acquire and improve, § 363. Sale of franchises, concessions or property in foreign country, } 364. Seal affixed, how, § 1628. Service, trusts, when only can accept and execute, § 290^. Summons, penalty for failure to designate person, upon whom may be served, § 406. Will, power to take under, § 1275. Will, whether may take under, § 1275. Xlll. Stock and stockholders; personal liability. Capital stock, articles to set forth amount of, § 290. Capital stock, division of, among stockholders, § 309. Capital stock, increasing and diminishing, manner of, § 359. Capital stock, increasing and diminishing, proceedings for, § 359. Capital stock, liability of directors reducing, with- drawing or paying out, § 309. Capital stock, not to be increased or reduced, § 309. Capital stock, not to be divided, withdrawn or paid to stockholders, § 309. Capital stock, reducing or increasing, restrictions on, k 309. Sa CORPORATIONS, XIIl. Capital stock, cannot be diminished by amendment ot articles, § 362. Capital stock, withdrawing, restrictions on, § 309. Certificates, false, officers liable for, § 316. Certificates of stock, how and when issued, § 323. Lost, destroyed or withheld certificate, action for new, § 328. Lost, destroyed or withheld certificate, action for new, protection of company, § 328. Married woman, dividends payable to, § 325. Married woman may give proxy or power as if sole, § 325. Married woman, transfer of stock by, § 326. Members are who, § 298. Members, control where there is no capital stock, § 305. Members, personal liability of where no capital stock, § 322. Stock and transfer book, how kept, § 878. Stock and transfer book to be kept, § 378. Stock, diminishing proceedings on, § 359. Stock, increase of, proceedings on, § 359. Stock, issuance of certificate before fully paid up, § 823. Stock, issuance of certificate when fully paid up, § 323. Stock in name of married woman, dividends to whom paid, § 325. Stock in name of married woman, proxy, § 325. Stock, in name of married woman, transfer, § 325. Stock, lost, destroyed or withheld certificate, action for new, § 328. Stock, lost, destroyed or withheld certificate, action for new, protection of company, § 328. Stock, majority, what is, where stock is held by cor- poration, § 844. Stock, subscription to, affidavit of, § 295. Stockholders, are who, §§ 298, 322. Stockholder, guardian or trustee's liability as, § 322. Stockholder, married woman may give proxy or power as if sole, § 325. Stockholders* personal liability, creditor may institute joint and several actions, § 322. Stockholders' personal liability does not extend to what persons, § 822. Stockholders' personal liability extends to what per- sons, § 822. CORPORATIONS, XIV, XV. W9 Stockholders* personal liability, foreign corporation, § 322. Stockholders* personal liability, funds in guardian's hands, liability of, § 322. Stockholders' personal liability, how enforced, § 322. Stockholders' personal liability, in general, § 322. Stockholders' personal liability, measure of, § 322. Stockholders* personal liability not released by trans- fer of stock, § 322. Stockholders' personal liability released on payment of his proportion, § 322. Stockholders' personal liability released when, and when not, § 322. Stockholders* personal liability, several judgments against for debts, § 322. Stockholders* personal liability, stock held as collateral, § 322. Stockholders' personal liability, stock held by represen- tative, § 322. Stockholders' personal liability, trust fund's liability for, § 322. Stockholders' personal liability when a guardian or trustee, § 322. Stockholders, who are, § 322. Stockholders, who are not, §§ 298, 322. Tax on issue of certificates of stock, act providing for repealed, p. 774, Stats. Transfer of shares does not release stocknolder's lia- bility, § 322. Transfer of shares, manner of, § 324. Transfer of shares of married woman, § 325. Transfer of shares, to be entered on books, § 324. Transfer of stock by nonresident, giving bonds, § 326 Transfer of stock by nonresident, how effected, § 326. XIV. Dividends. Not to be declared on stock belonging to the corpora tion, § 343. Payable to married women, § 325. To be made only from surplus profits, § 309. XV' Assessments. • Action to recover delinquent, § 349. Directors may levy, when and for what, § 331. Jurisdiction to sell acquired by publication of notice, § 840. 850 CORPORATIONS, XVI. Limitation on power of, § 332. Notice of delinquent, contents of, § 338. Notice of delinquent, § 337. Notice of delinquent, publication of, § 339. Notice of, form, §§ 335, 337. Notice of, service and publication of, § 336. Not to be invalidated by what irregularities, § 346. • Not to be levied upon stock owned by the corporation, § 843. Not to be levied while previous one unpaid, unless, 5 333. Order for, to contain what, § 334. Payment before sale day, what to be paid in addition to assessment, § 341. Proceedings for, to be begun anew, when, § 346. Publication of, affidavits to be filed, § 348. Publication of notice, affidavits are prima facie evi- dence, § 348. Publication of notice proved, how, § 348. Sale, action to recover such stock, § 347. Sale, action to recover, tender of assessment, § 847. Sale, corporation may buy in default of bidders, § 343. Sale, disposition of stock bought by corporation, § 344. Sale, extension of time for, § 345. Sale, highest bidder is purchaser, § 342. Sale, jurisdiction acquired, how, § 340. Sale, no more stock than necessary to be sold, § 340. Sale, to pay, §§ 340-349. Sale, waiver of, and suit to recover assessment, § 349. Sale, to be by public auction, § 341. Sale, to pay transfer of stock to purchaser when sold to pay assessment, § 842. XVI. Sale of franchise under execution. Execution against franchise may be sold, § 388. Execution, sale of franchise, duties and liabilities, § 891. Execution, sale of franchise, redemption, § 392. Execution, sale of franchise, where made, § 393. Execution sale of franchise, corporation retains pow- ers, § 391. Execution sale of franchise, damages, recovery by purchaser, § 390. Execution sale of franchise, purchaser may recover penalUes, etc., § 390. Bxecution sale of franchise, purchaser, rights of, § 390. (CORPORATIONS, XVII. XVIII. 851 BJxecutloii sale of franchise, purchaser to be let into possession, § 389. Execution sale of franchise, purchaser to transact business of corporation, § 389. Execution sale of franchise, where held, § 393. Franchise, redemption of, from execution sale, § 392. XVil. Dissolution; nonuser; examining into affairs; attack upon. Attorney general examining into, powers of, § 382. Attorney general may examine into, when, § 382. Collateral attack, not open to, § 358. Collateral attack on, § 358. Dissolution, directors or managers are trustees, § 400. Dissolution, directors and managers, powers of, § 400. Dissolution by legislature does not affect rights and remedies against, §§ 384, 403, 404. Dissolution, involuntary, code provisions governing, § 399. Dissolution of, by legislature, and its effect, § 384. Dissolution of, directors trustees for creditors and stockholders, § 400. Dissolution, power of directors, § 400. Dissolution, reservation by legislature of power of, §§ 384, 403, 404. Dissolution, voluntary, code provisions governing, § 399. District attorney examining into, powers of, § 382. District attorney may examine into, when, § 382. Examination into, by legislature, § 383. Examination into affairs of, by attorney general or district attorney, § 382. Examination into, how made by attorney general or district attorney, § 382. Nonuser, dissolution for, § 358. Nonuser, proceedings to be instituted by attorney general, § 358. Nonuser, who may question right of corporation, § 538. Quo warranto, § 358. Trust companies, dissolution and winding up of, d. 676, Stats. XVIII. Foreign. Actions, cannot maintain or defend, when, § 406. Articles, act of requiring filing of, § 408, note. Articles, failure to file, penalty for, § 410. Articles, failure to file, proceedings against, § 410. 852 CORPORATION SALJE— COUNTY. Articles of incorporation, certified copies of to be filed, § 408. Articles of incorporation, fees for filing, § 409. Evidence of corporate existence, what admissible, § 406. Insurance corporations on assessment plan: See Mu- tual Insurance on Assessment Plan. Railway corporations, rights, powers and liabilities, § 407. Statute of limitations operates in favor of, when and when not, § 406. "Summons, act relating to designation of person upon whom may be served, § 405, note. Summons, designation of person on whom may be served, revocation and new designation, § 406. Summons, designation of person on whom may be served, § 405. Summons may be served on Secretary of State, when, § 405. Designation of person upon whom process may be served, p. 711, Stats. Fees required of, p. 712, Stats. Filing of articles of incorporation, p. 712, Stats. Provisions as to cumulative voting, apply to, § 307. Railroad companies authorized to do business on equal terms, p. 764, Stats. Stockholders* personal liability, § 322. CORPORATION SOLE, religious societies may become, when, § 602. COSTS, divorce, of, § 137. Homestead, of appraisement, § 1259. Homestead, of proceedings to subject to creditors' demands, § 1259. Indemnity against, § 2778. Negotiable instrument may provide for, § 3088. COTENANCY, between devisees, § 1350. Between husband and wife, § 161. See Tenancy in Common. COTERMINOUS OWNER, mutual obligations of, § 841. Rights to lateral support, § 832. Rights to line trees, § 834. COUNTY, articles of incorporation, filing in wrong county, effect of, and proceedings on, § 363. County fire insurance companies, p. 732, Stats. Marriage settlement to be recorded in what, § 179. Mortgage of personal property to be recorded in what, § 2959. C30UNTY— CREDITOR. 863 Mortgage property in transit deemed located in what, § 2960. Property of common carrier deemed to be in what, § 2961. COUNTY CLERK: See Clerk. COUNTY RECORDER, acknowledgment, may take, § 1181. See Recording. COURT, clerk of, may take acknowledgments, § 1181. COURT COMMISSIONER, acknowledgment, may take, § 1181. COVENANTS, agent's authority to give, § 2324. Agreements to give, usual, includes what covenants, §§ 1733, 1734. Apportionment of, § 1467. Covenant with owner of another tract runs with both tracts when, § 1468. Damages for breach of, § 3304. See Damages. Form of, § 1733. Implied in transfer of land, § 1113. May inure to stranger, § 1085. Quiet possession, for, in hiring, §§ 1927, 1955. Running with land, §§ 1460-1468. Running with land, covenants for direct benefit of property run, § 1462. Running with land, defined, § 1460. Running with land, only those specified in code run, § 1461. Running with land, what are generally, § 1460. Running with land, what covenants run, § 1463. Running with land, what run when assigns are named, § 1464. Running with land, who bound by, and who not, §§ 1465, 1466. Running with land, who not liable for breach, § 1466. CREDIT, agent accepting, liable as principal, § 2343. Agent, to, exonerates principal, § 2335. ^Auctioneer not to give, except, § 2362. Factor may give, except, § 2368. Factor's sales on, § 2028. Shipowner's, master may borrow on, § 2374. Ship's manager cannot borrow, § 2389. CREDITOR: See Assignment for Creditors; Credit; Debtor. Acceptance by, necessary to satisfaction, § 1473, Acceptance of accord, § 1523, 8&4 CREDITOR. Acceptance of part performance, § 1524. Appraisement of homestead on petition of judgment^. § 1245. Application of performance by, § 1479. Avoid act of debtor, when, only can, § 3441. Contracts of debtor valid against, when, § 3431. Debtor may prefer, when, § 3432. Definition of, § 3430. Effect of prevention of performance by, § 1512. Effect of refusal to accept performance, § 1515. Gift causa mortis treated as legacy, when, § 1153. Guarantor, liable to, when, § 2807. Guarantor not exonerated by discharge of debtor with- out act of, § 2825. Guarantor not exonerated by mere delay of, § 2823. Guarantor not exonerated by voidable promise of, § 2820. Guarantor, when exonerated, § 2819. Guarantor, when partially exonerated, § 2822. Guarantor with indemnity, when not exonerated, § 2824. Homestead, when to pay expenses of appraisement of, § 1259. Lien void against, when, § 2913. Marshaling of assets, § 3433. Mortgage of personal property, when void against, § 2957. Mortgagor of, remedy of, § 2968. Novation, how made, § 1531. Novation, may rescind, when, § 1534. Objections to offer of performance, § 1501. Obligation of, as to thing offered which he refuses to accept, § 1505. Offer of performance at place appointed by, § 1489. Offer of performance so as to benefit, § 1493. Offer of performance to, § 1488. Order to resort to funds, § 2899. Partner cannot make assignment for, § 2430. Partner, liability of after dissolution to, § 2453. Partner, special may be, § 2491. Partner, special postponed to other, § 2491. Performance excused, if prevented by, § 1511. Performance in manner directed by, § 1476. Performance to one of several joint, § 1475. Preference to, in insolvency, void, § 2496. Receipt by, § 1499. Relative rights of creditors, § 3433, Release by, { 1541. CREDITOR— DAMAGES. K6» Release by, effect of, general, § 1542. Special partner, when liable, as general partner, to. § 2502. Surety entitled to securities held by, § 2849. Surety exonerated by refusal to sue, § 2845. Surety exonerated by what act or omission of, § 2840, Surety, how far liable, § 2838. Surety may enforce remedies of, when, § 2845. Surety's securities, entitled to benefit of, § 2854. Title of thing offered passes to, when, § 1502. Transfer for benefit of, to be recorded, § 1164. Transfer of debtor void against, when, §§ 3439, 3440. Transfer without value not void, §§ 3442, 3449, 3465, 3469. Trust, absolute, in favor of subsequent, § 869. Trust fund, how far liable to, § 859. Trusts for benefit of, § 857. Witness to will, as, § 1282. CRIMINAL LAW. Warehouseman, violation of law by, punishment, § 1858f. CROPS, lien of mortgage on continues after severance. § 2972. Mortgage of, § 2955. Tenant's right to harvest, § 819. CRUELTY, apprenticeship annulled for, § 276. Defined, § 94. Divorce, as ground for, §§ 92, 98, 146. CUBIC AIR LAW, statute relating to, p. 743. CUMULATIVE voting, § 307. CURATIVE ACTS. Act curing defective execution or acknowledgment of instrument, § 1207; p. 665, Stats. CURRENT MONEY, borrower to pay in, § 1913. CURTESY not allowed, § 173. CUSTODY, children of annulled marriage, § 85. Children of, rules for awarding, § 246. Children of: See Divorce; Parent and Child. Thing offered in performance of obligation, § 1503. DAMAGES, acknowledgments, § 1201. Admission to place of amusement for refusal to, § 54. After suit brought, § 3283. Agent's authority, breach of warranty, damages tor, § 3318. Animals, for injuries to, § 3340. Breach of agreement to buy personalty, for, § 3311. DAMAGES. Breach of agreement to buy realty, for, § 3307. Breach of agreement to convey realty, for, § 3306. Breach of agreement to pay for personalty sold, for, § 3310. Breach of agreement to sell personalty, for, §§ 3308, 3309. Breach of covenant against encumbrances, for, § 3305. Breach of covenants in deed, for, § 3304. Breach of promise of marriage, for, § 3319. Breach U warranty of quality for special purpose, for, § 3314. Breach of warranty of quality for special purpose, for, § 3313. Breach of warranty of title to personalty, for, § 3312. Carrier of messages, refusal to receive, or delay in delivering, § 2209. Carrier's delay, for, § 3317. Carrier's obligation to deliver, for breach of, § 3316. Carrier's obligation to receive, for breach of, § 3315. Certain, must be, § 3301. Chose in action, presumption as to value of, § 3356. Compensation defined, § 3274. Contract fixing, §§ 1670, 1671. . Conversion, for, §§ 3336-3338. Detriment defined, § 3282. Dishonor of bill of exchange, § 3235. Dishonor of foreign bill, for, §§ 3234-3238, 3303. Dogs killing goats, sheep or poultry, liability of owner, § 3341. Duel, injuries inflicted in, §§ 3347, 3348. Employing materials belonging to another, for, § 1033. Exemplary, damages prescribed in code are exclusive of, § 3357. Exemplary, for injury to animals, § 3340. Exemplary, infant's liability for, § 41. Exemplary, in case of malice, fraud or oppression, § 3294. Exemplary, lunatic's liability for, § 41. Exemplary, when recoverable, in general, § 3294. Failure to quit by tenant after notice, treble rent, § 3345. Fire, for negligently setting, § 3346a. Forfeiture, relief in cases of, § 3275. Future injuries, for, § 3283. Gas, refusal to furnish, § 629. Guardian's holding over, for, § 335. Holding over by tenant, treble rent, § 3345. Holding over, for willful, § 335. DAMAGES. 5&I Innkeeper, for failure to post charges, § 1863. Interest as, §§ 3287-3290. Interest, damages prescribed in code are exclusive of, § 3357. Interest on, § 3287. Killing sheep by dogs, for, § 3341. Lienor's for conversion, § 3338. Limitation on amount of, § 3358. Liquidated, §§ 1670, 1671. Liquidated, not bar to specific performance, § 3389. Liquidated sum, for breach of contract to pay, § 3302. Market value, §§ 3353, 3354. Measure of, for breach of contract, § 3300. Measure of, for breach of contract to pay liquidated sum, § 3302. Measure of, in various cases, §§ 3300-3341. Mortgagee's liability for refusal to give certificate ot discharge, § 2941. Must be certain, § 3301. Nominal, when recoverable, § 3360. Obligations not arising out of contract, damages for, § 3333. Penal, §§ 3344-3348. Railroad, liability for refusing to provide ticket, § 490. Railroad, overcharge by, § 489. Reasonable to be, § 3359. Relief, in general, § 3274. Sales, value how estimated, §§ 3353, 3354, 3355. Seduction, for, § 3339. Sheep killed by dogs, for, § 3341. Specific relief: See Specific Relief. Telegraph property, damages for malicious injury to, § 538. Tenant liable for treble rent, when, §§ 3344, 3345. Tenant's failure to quit after notice, treble rent, § 3344. Thing in action, presumption as to value of, § 3356. Timber, for injury to, § 3346. Trees, for injury to, § 3346. Trust, damages for breach of, §§ 2237, 2238. Trustee's holding over, for, § 3335. Value, how estimated in favor of buyer, § 3354. Value, how estimated in favor of seller, § 3353. Value, how estimated where property of peculiar value, § 3355. Value of thing in action, § 3356. Who entitled to, in general, § 3281. Written instrument, presumption as to value of I 3356. S68 DAMAGES-DEBT. Wrongful occupation of realty, for, § 3334. Wrongs, for, generally, § 3333. See Specific Relief. DATE, delivery of deed, presumption as to, § 1055. Negotiable instrument, not necessary in, § 3091. DAYS, counted, in computing time, § 10. Business, are what, § 9. Grace, of, not allowed, § 3181. Holidays, are what, §§ 7, 8. DEATH. Beneficiary receiving advancements, effect on heirs, § 1399. Beneficiary under will, rights of children, § 1310. Chose in action, survival of, § 954. Devisee, of, before testator, § 1344. Devisee or legatee, of, before testator, §§ 1310, 1343. Distribution of common property on, of husband, § 1402. Distribution of common property on, of wife, § 1401. Effect of on hiring, § 1934. Employer or employee, death of, §§ 1996-1998. Execution of power, where one of persons in whom vested dies, § 860. Gift in view of: See Gift. Heir advanced to, of, before devisor, § 1399. Husband and wife, of, effect on, homestead, § 1265. Joint employee, death of, duty of survivor, § 1991. Joint guardian, of, § 252. Maker of instrument bearing nominal date, of, § 3094. Marriage, dissolved by, § 90. Minor, of, representative may disaffirm contract, § 35. Notice of dishonor, how served after, § 3145. Notice of dishonor in ignorance of, § 3146. Of partner, dissolution, § 2450. Parent, of, leaving child unprovided, § 205. Satisfying gift or legacy before death, § 1367. Seamen, of, who entitled to wages, § 2062. Without heir, etc., defined, § 1071. DEBT: See Creditor; Debtor. Agreement to answer for, of another, § 1624. Extinguished by offer of payment, § 1500. Homestead, liable for certain, § 1241. Husband not liable for antenuptial, § 170. Legacies, how charged with, §§ 1360, 1361. Liability of beneficiaries for testator's, § 1377. Partner in liquidation may collect, compromise, etc., I 2461. DEBT— DB5CKIT. . »M Partner may require partnership property to be ap- plied to, § 2405. Pledgee cannot sell, evidences of, § 3006. Separate propery of wife liable for her own, § 171. Separate property of wife not liable for, of husband, § 171. Special partner, liability for, § 2501. Special partner's contribution liable for, § 2501. Stockholder, liability of, for, § 322. Testator, property of, how disposed of in payment of, § 1359. Wife, earnings of not liable for, of husband, § 168. DEBTOR: See Assignment for Creditors; Creditor; Fraudulent Conveyance. Application of general performance by, § 1479. Application of payment of interest, § 1479. Application of performance, § 1479. Contracts valid, when, § 3431. Creditor can avoid act of for fraud, when only, § 3441. Creditor is who, § 3430. Debtor is who, § 3429. Effect of directions to, as to performance by creditors, § 1476. Fraudulent misrepresentation of, as to pledge, § 2999. Guaranty, need not be written, when, § 2794. Insolvent, defined, § 3450. Joint, release of several, effect of, § 1543. Marshaling of assets, § 3433. Novation by substituting new for old, § 1531. Offer of payment or performance stops interest, § 1504. Offer of performance by or for, § 1487. Performance by joint debtor, § 1474. Performance must be made by or for, § 1473. Preferences, § 3432. Receipt, may require, § 1499. Relative rights of creditors, § 3433. Release of by creditor, effect, § 1542. Release, general, by creditor, § 1541. Rights of, upon prevention of performance, §§ 1512- 1514. Surplus of rents and profits of trust liable to creditors, when, § 859. DECEIT, an essential element of fraud, § 1572. In general, §§ 1709-1711. One willfully deceiving another, liability, § 1709. 860 I>BCmT— DEFECT. Renders contract voidable, § 1567. Upon the public, effect of, § 1711. Wbat constitutes, § 1710. When actionable, §§ 1709, 1710. See Fraud. DECK, freight not to be stowed on, § 2117. Things stowed on, general average, § 2154. DECLARATION, abandonment of homestead, of, §§ 1243, 1244. Homestead, of, effect of filing for record, §§ 1265, 1269. Homestead, of, how acknowledged, §§ 1262, 1266. Homestead, of, to be recorded, §§ 1264, 1268. Homestead, of, what to contain, §§ 1263, 1267. Marriage, of, action to compel, § 78. Marriage, of, how made, §§ 75, 76. Marriage, of, to be acknowledged and recorded, § 77. Trust, of, act in contravention to, void, § 870. Trust, of, effect of omitting in grant, § 869. Trust, of trustee must obey, § 2258. Trust, of, what to express, § 2253. DEED. Change of name, act relating to conveyances in case of, § 1096, note. Change of name, conveyance in case of, § 1096. Heir, conveyance by valid unless will proved within four years, § 1364. Escrow, delivery in, § 1057. Cemetery corporations, deeds by, p. 689, Stats. Guardian appointed by, § 241. Precedent conditions, § 1110. Re-entry, when and how made, § 791. Right of re-entry can be transferred, § 1046. Surrendering or canceling of grant does not reconvey, § 1058. Time of creation of interest created by, § 749. Title deeds, to whom belong, § 994. When deemed a mortgage, §§ 2924, 2925. See Conveyance; Transfer. DEFAMATION: See Libel; ::!ander. How effected, § 44. Right to protection from, § 43. DEFAULT, divorce by, § 13d. See Statute of Frauds. DEFECT, certificate of acknowledgment, in, action to rem- edy, S 1202. DEFINITIONS. Depositor must indemnify depositary for, § 1883. Lender must indemnify borrower for, § 1893. Warranty of manufacturer against latent, § 1769. Will, in description in, § 1340. DEFINITIONS, absolute ownership, § 679. Accord, § 1521. Actual agency, § 2299. Actual authority, § 2816. Actual notice, § 18. Adultery, § 93. Adults, § 27. Agency, § 2295. Agency, ostensible, § 2300. Agent, § 2295. Agents, general and special, § 2297. Agreement to buy, § 1728. Agreement to sell, § 1727. Agreement to sell and buy, § 1729. Annuities, § 1357. Appurtenances, § 662. Auctions, § 1792. Authority, ostensible, § 281T» Bail, § 2780. Beneficiary, § 2218. Bill of exchange, § 8171, Bill of lading, § 2126. Bottomry, § 3017. Charter-party, § 1959. Chattel interests, § 765. Chattels real, § 765. Check, § 3254. Chose in action, § 953. Collateral consanguinity, S 1890. Collusion, § 114. Common carrier, § 2168. Community property, §§ 164, 687. Compensation, § 3274. Completion of appropriation, § 1417. Concealment, § 2561. Conditional devises and bequests, § 1845. Conditions concurrent, § 1437. Conditions precedent, §§ 708, 1346, 1486. Conditions subsequent, §S 708, 1849, 1488. Condonation, § 115. DEFINITIONa Connivance, § 112. Consignee, § 2110. Consignor, § 2110. Constructive fraud, § 1578. Constructive notice, § 18. Contingent interests, § 695. Continuing guaranty, § 2814. Contract, § 1549. Contract of carriage, defined, § "OSS. Contract of mutual insurance on asseasment plaa, § 453d. Conveyance, § 1215. Corporation, § 283. Corporations, private, § 284. Corporations, public, § 284. Covenants, running with the land, § 1460. Create debts, § 579. Creditor, § 3480. Debtor, § 3429. Demonstrative legacy, § 1357. Depose, § 14. Deposit for exchange, § 1818. Deposit for safekeeping, § 1817. Desertion, § 95. Detriment, § 3282. Deviation, § 2694. Direct consanguinity, § 1890. . Domestic navigation, § 962. Domestic ship, § 963. Dominant tenement, § 808. Double insurance, § 2641. Duress, § 1569. Employment, contract of, § 1965. Escrow, § 1057. Exchange, § 1804. Executed contract, § 1661. Executory contract, § 1661. Express contracts, § 1620. Extreme cruelty, § 94. Factor, §§ 2026, 2367. Fee, § 762. Foreign bill of exchange, § 3224. Foreign navigation, § 962. Foreign ship, § 963. DEFINITIONS. Freeholds, § 765. Freight, § 2110. Freightage, §§ 2110, 2661. Future interest, § 690. General agent, § 2297. General average, § 2148. General indorsement, § 3112. General legacies, § 1357. General letter of credit, § 2861, General lien, § 2874. General partnership, § 2424. Gift, § 1146. Gift, causa mortis, § 1149. Good consideration, § 1605. Goodwill, § 992. Grant, § 1053. Gratuitous deposit, § 1844. Guaranty, § 2787. Guardian, § 236. Guardian, general, § 239. Guardian, special, § 240. Habitual intemperance, § 106. Head of family, § 1261. Hiring, § 1925. Hydraulic mining, § 1425. Implied contract, § 1621. Impossibility, § 1597. Income, § 748. Incumbrance, § 1114. Indemnity, § 2772. Indorsement, § 3108. Indorser, § 3108. Inland bill of exchange, § 8224L Inland carriers, § 2087. Insolvency, §§ 3077, 8450. Insurable interest. § 2546. Insured, § 2538. Insurer, § 2538. Interest, § 1915. Interest in common, § 685. Involuntary trust, § 2217. Jettison, § 2148. Joint interest, § 683. Land, § 659. Letter of credit, § 2858. Libel, § 45. DEFINITIONS. Lien, § 2872. Limited interest, § 692. * Loan, § 1884. Loan for exchange, §§ 1&(>2, 1903. Loan for money, § 1912. Manager of ship, § 2070. Managing owner of ship, § 2070. Marine carriers, § 2087. Marine insurance, § 2655. Marriage, § 55. Mate, § 2048. Mistake of fact, § 1577. Month, § 14. Mortgage, § 2920. Negotiable instrument, § 3(^. Novation, § 1530. Nuisance, § 3479. Object of contract, § 1595. Obligation, § 1427. Olographic will, § 1277. Open policy, § 2595. Ostensible agency, § 2300. Ostensible authority, § 2317. Ownership, § 654. Partnership, § 2395. Partnership interest, § 684. Payment, § 1478. Perpetual interest, § 691. Personal property, § 14. Pledge, §§ 2986, 2987. Policy of insurance, § 2586. Prescription, § 1007. Present interest, § 689. Private nuisance, § 34^. Privileged communication, § 47. Promissory note, § 3244. Property, §§ 14, 654. Public nuisance, § 3480. Qualified ownership, § 680. Real property, § 14. Recrimination, § 122. Reinsurance, § 2646. Remainder, § 769. Residuary legacies, § 1357. Respondentia, § 3036. Reversion, § 768. Running policy, § 2597. DEFINITIONS— DELAY. »•» Sale, § 1721. Satisfaction, § 1523. Seamen, § 2049. Seaworthiness, § 2682. Servant, §§ 2009, 2012. Servient tenement, § 803. Several ownership, § 681. Ship, § 960. Shipping, § 960. Slander, § 46. Special agent, § 2297. Special indorsement, § 3113. Special letter of credit, § 2861. Special liens, § 2875. Specific legacy, § 1357. Storage, § 1851. Succession, § 1383. Surety, § 2831. Testify, § 14. Thing in action, § 953. Time, unreasonable lapse of, § 125. Transfer, §§ 1039, 1040. Trustee, § 2218. Trustor, § 2218. Undue influence, § 1575. Valued policy, § 2596. Vested future interest, § 694. Voluntary transfer, § 1040. Voluntary trust, § 2216. Ward, § 237. Warranty, § 1763. Willful neglect, § 105. Words and phrases: See Words and Phrases. DEGREE of kindred, how established, § 1389. DELAY, creditor, of, does not discharge guarantor, § 2823. Carrier to travel without unreasonable, § 2104. Deemed deviation, when, § 2694. Excuse of performance by, § 1511. How excused, § 1511. In performance compensated for, when, § 1492. Insurance, notice of loss under to be given without, §§ 2633, 2636. Presentment, in, of bill of exchange, effect of, § 3189. Presentment, in, of notice of dishonor excused when, § 3158. Presentment, in, of promissory note, effect of, § 3248. Civil Cade-55 &fil DEIaAY— DEMAND. Presentment of bill of exchange, in, how excused, § 3219. Presentment of check, in, effect, § 3255. Protest, in, how excused, § 3230. Reasonable grounds for, rebuts presumption from lapse of time, § 126. DELINQUENT assessment, action to recover stock sold for, § 347. Assessment, sale of stock for, § 341. DELIVERY, constructive, § 1059. Contract in writing takes effect on, § 1626. Deemed time of creation of interest, § 749. Deposit, of, by joint owners, § 1827. Deposit, of, demand .necessary, § 1823. Deposit, of, on demand, § 1822. Deposit, of, place of, § 1824. Employee not to deliver without demand, § 1987. Freight of, place of, §§ 2118, 2119. Freight, of, to holder of bill of lading, § 2131. Freight, of, to whom and manner of, § 2118. Gift, of, necessary, § 1147. Goods sold, of, buyer's directions, § 1757. Goods sold, of, expense of, § 1755. Goods sold, of, notice of election as to mode of, § 1756. Goods sold, of, reasonable hour, § 1758. Goods sold, of, when to be made, § 1753. Goods sold, of, where, § 1754. Grant, of, necessary, § 1054. Grantee, to, necessarily absolute, § 105C. In escrow, § 1057. Pledge, essential in, § 2988. Presumption of time of, § 1055. Thing bought, to be paid for on, § 1784. DEL NORTE COUNTY, tolls in, § 514. DEMAND, agent to deliver to third person on, § 2344. Deposit need not be delivered without, § 1823. Deposit to be delivered on, § 1822. Employee not bound to deliver without, § 1987. Employee, to render account without, § 1986. Goods sold to be delivered upon, § 1753. Guarantor, upon, unnecessary, § 2807. Lent thing need not be returned unless, when, § 1895. Lent thing to be returned without, § 1895. Negotiable instrument, of payment of, when necessary, § 3130. Performance, of, how waived, § 3004, DICMANB— DEPOSIT. 867 Pledgor of performance, on, must be belore sale, § 3001. Restoration of thing wrongfully taken, necessity erf, § 1713. Servant to deliver without, § 2014. DEPOSE, includes what, § 14. DEPOSIT: See Depositary; Warehouseman* Abandoned thing, § 1872. Animals, of, § 1834. Borrower: See Loan. Charges, sale to satisfy, § 1857. Depositor, who is, § 1814. Exchange, for, § 1878. Exchange for, defined, § 1818. Finder, duty of, § 1865. Finder may put thing found on storage, § 1868. Finder, obligation of, § 1864. Finder, surrender of thing found exonerates from liability, § 1871. Finder to notify owner, etc., § 1865. Found property, claimant to prove ownership, § 1866. Gratuitous, defined, § 1844. Hire, for, called storage, § 1851. Indemnify, depositor to, § 1833. Innkeeper, with, §§ 1859, 1860. Involuntary, duty of person taking, § 1816. Involuntary, how made, § 1815. Involuntary, gratuitous, § 1845. Joint, § 1475. Joint, delivery to depositors, § 1827. Kinds of, § 1813. Lien for storage, § 1856. Lien, sale to satisfy, § 1857. Loan: See Loan. Loss or injury, liability for, § 1838. Money in payment of debt, of, § 1500. Reward of finder, § 18ti7. SafeKeeping, for, defined, § 1817. Sale of perishables, §§ 1837, 1857. Sale of property, when may be ordered, § 1857. Sale of thing found, §§ 1869, 1870. Savings bank, surviving spouse, § 579. Storage, §§ 1851-1857. See Storage. Termination of, §§ 1854, 1855. Termination, right of, when agreement as to time, § 1855. m DEPOSIT— DESCENT. Thing wrongfully detained, notice to owner by de- positary, § 1826. Unclaimed deposits, banks to publish statements ot, pp. 674, 675, Stats. Use of thing loaned, § 1890. Voluntary, now made, § 1814. See Depositary; Warehouseman. DEPOSITARY: See Deposit; Warehouseman. Adverse claim, notice of, to owner, § 1825. Animals, of, duty toward, § 1834. Animals, compensation for part of week, § 1853. Compensation of, for part of weeR or month, § 1853, Delivery by, notice to owner of adverse claim, § 1825. Delivery by, not required before demand, § 1823. Delivery by, of thing owned jointly, § 1827. Delivery by, on demand, § 1822. Delivery by, on demand, when excused, § 1822. Delivery by, place of, § 1824. Depositor must indemnify, for what, § 1833. Gratuitous, care required of, § 1846. Gratuitous, creditor is, when, § 1505. Gratuitous, duties cease, when, § 1847. Hire, for, compensation for parts of week, etc., § 1853, Hire, for, degree of care required of, § 1852. Hire, for, finder has obligations of, when, § 1864. Hire, for, who is, § 1851. Insurable interest of, § 2548. Involuntary, notice to owner to remove, § 1847. Liability for loss or injury, § 1838. Liability to rightful owner of thing deposited, § 1826, Lien of, for storage, § 1856. Negligence, limitation of li-ability for, § 1840. Notice to owner of thing wrongfully detained, § 1826. Opening deposit, obligation as to, § 1835. Perishables, may sell when, § 1837. Person offering thing in performance, § 1503. Sale by, of storage property, § 1857. Sale of thing in danger of perishing, § 1837. Seller of personalty is, before delivery, § 1748. Service by, duties and liabilities prescribed by title on employment, § 1839. Thing wrongfully detained, exoneration of depositary, § 1826. Use of deposit, rights and obligations as to, § 1835. Use, wrongful, liability for, § 1836. Who is, §§ 1814, 1851. DESCENT: See Succession. Statute of, S 1386. DESCRIPTION— DIVIDENDS. 86'^ DESCRIPTION, agreement to compensate for errors of, effect of, § 1690. Error of, in will, how remedied, § 1340. DESERTION: See Divorce. DESTRUCTION of will is revocation, § 1292. Of will, how proved, § 1293. Of written contract, effect, §§ 1699, 1700. DETENTION, of person or property avoids contract, when, § 1569. Of property, damages for, § 3335. DEVIATION, carrier not to make, § 2104. Marine insurance, §§ 2692-2697. Defined, § 2694. DEVISE: See WUls. DEVISEES: See Wills. DILIGENCE: See Care. DIRECTION, buyer*s, as to delivery, § 1757. Carrier to follow whose, §§ 2115, 2116. Employee to follow, § 1981. Factor to follow, § 2027. Trustee must follow, § 2258. DIRECTOR: See Corporations. DISAFFIRMANCE of infants' contracts, §§ 35, 37. DISCHARGE of employee, §§ 1996, 2000. Of principal does not discharge guarantor, when, § 2825. Of servant, § 2015. Of trustee, §§ 2233, 2282. Of trustee, duties of, before accepting his, § 2260. Of trustee, who succeeds after, §§ 2287-2289. DISSOLUTION, corporations: See Corporations, XVIL Banks and trust companies, p. 676, Stats. DISTRIBUTION, community property on divorce, § 147. Effect of advancements on, § 1395 et seq. Intestates, of property of, §§ 1384, 1386. Order for, subject to revision on appeal, § 148. Rules of descent and distribution in case of intestacy, § 1386. Rules of where one dies intestate, § 1386. DISTRICT ATTORNEY. Action for penalty against bridge, ferry, etc., corporation, § 530. Examination into affairs of corporation by, § 3«2. DIVIDENDS: See Corporations. Amounts to be reserved before making by insurance corporaUon, §§ 429, 431, 432. 870 DIVISION FENCE— DIVORCB. DIVISION FENCE. Easement of maintenance, § 801. DIVORCE, adultery defined, § 93. Adultery of husband, legitimacy, how affected by di- vorce for, § 144. Alimony, community and separate property, order of resort to, § 141. Alimony, execution for, § 137. Alimony, modifying orders granting, §§ 137, 139. Alimony, pendente lite when allowed, § 137. Alimony, permanent, § 139. Alimony, receiver, § 140. Alimony, security for, § 140. Alimony, when divorce not granted, § 136. Alimony, when wife has sufficient support, § 142. Annulment of marriage, §§ 82-86. Appeal, revision of order disposing of property, § 148. Children, custody, care and maintenace of, § 138. Children, order relating to, modification and vacation of, § 138. Children are legitimate, § 1387. Children, community and separate property may be subjected to support of, § 143. Children: See Parent and Child. Collusion defeats, § 111. Collusion defined, § 114. Collusion, presumption of, from lapse of tim«, §§ 125, 126. Community property disposed of, how, § 146. Condonation as a bar, § 123. Condonation as recriminatory defense, § 123, Condonation avoided by concealment, § 120. Condonation cures desertion, § 102. Condonation defeats, § 111. Condonation defined, § 115. Condonation, evidence, what is not, § 118. Condonation implies, what, § 117. Condonation, presumption of, from lapse of time, §§ 125, 126. Condonation, refusal of offer of amounts to desertion, § 102. Condonation, requisites to, § 116. Condonation revoked how, § 121. Condonation, when can be made, § 119. Connivance defeats, § 111. Connivance defined, § 112. t>ivoRc®. m Connivance manifested, how, § 113. Connivance, presumption of, from lapse of time, §§ 125, 126. Counsel fees, allowing pendente lite, § 137. Counsel fees, execution for, § 137. Counsel fees, what property to be resorted to, § 141. Cruelty, desertion induced by, § 98. Cruelty, extreme, defined, § 94. Custody of children, modification or vacation of or- ders, § 138. Custody of children, orders resi)ecting, § 138. Decision and conclusions of law filed as in other cases, § 131. Decree not granted on uncorroborated statements, § 130. Decree restores parties to unmarried state, § 91. Defalt, decree not granted by, § 130. Default of defendant, proof of allegations, § 130. Defen^?**- to actions for, § 111. Denying, grounds for, § 111. Desertion by refusal to abide by husband's selection of home, § 103. Desertion, by selecting unfit domicile, § 104. Desertion cured, how, § 102. Desertion defined, § 95. Desertion, in case of cruelty, who commits, § 98. Desertion, in case of fraud or stratagem, who commits, § 97. Desertion induced by cruelty, § 98. Desertion induced by fraud or stratagem, § 97. Desertion manifested, how, § 96. Desertion must extend year, § 107. Desertion, refusal to offer of condonation amounts to, § 102. Desertion, refusal of reconciliation amounts to, when, § 101. Desertion, return and soliciting of condonation, § 102. Desertion, separation becomes, when, § 100. Desertion, separation by consent is not, § 99. Desertion, what amounts to, § 96. Disposition of homestead and community, mode of § 146. Disposition of homestead and community, order for § 147. 8t^ DrVORCtf. Disposition of homestead and community, reyislon of order for, on appeal, § 148. Disposition of property, order for, § 147. Domicile, each spouse may have, on separation, § 12$. Domicile of wife in actions for, § 129. Domicile fixed by husband, refusal of wife to abide by, is desertion, § 103. Domicile, husband may fix, § 103. Domicile, presumptions as to do not apply in, § 129. Domicile, unfit, husband selecting, amounts to deser- tion, § 104. Bxtrerne cruelty, what is, § 94. Evidence, not granted on uncorroborated testimony of parties, § 130. Evidence of facts alleged necessary, § 130. Pinal judgment entered when divorce denied, § 131. Pinal judgment when entered on interlocutory judg- ment and rights on, § 132. . Grounds for, § 92. Grounds for denying, § 111. Habitual intemperance defined, § 106. Habitual intemperance must extend year, § 107. Homestead disposed of, how, § 146. Interlocutory judgment, appeal may be taken in six ' months, § 131. Interlocutory judgment, death of party after, effect on right to enter final judgment, § 132. Interlocutory judgment entered when divorce granted, § 131. Interlocutory judgment, final judgment may be en- tered on in one year, § 132. Interlocutory judgment, final judgment on, effect of and rights under, § 132. Interlocutory judgment, final judgment, entry of, on, does not validate prior marriage, § 132. Interlocutory judgment, final judgment, when entered where appeal taken or new trial asked, § 132. Lapse of time defeats, § 111. Lapse of time establishes what presumptions, §§ 125, 126. Limitation defeats, § 111. Legitimacy of children born after, § 194. Legitimacy of children when divorce for adultery of wife, § 145. Limitation of actions for, §§ 124-127. DIVORCE— DOMICILE. WJ Maintenance, ^ action for without divorce, § 137. Maintenance decreed when divorce denied, § 136. Maintenance, receiver, § 140. Maintenance, security for, § 140. Maintenance, what property resorted to, § 141. Maintenance, where divorce denied, § 136. Marriage: See Marriage. Nullity of marriage, effect on legitimacy of children, § 84. Presumptions arising from lapse of time, §§ 125, 126. Proof of facts alleged necessary, § 130. Recrimination defeats, § 111. Recrimination defined, § 122. Recriminf'tory defense, condonation as, § 123. Referee, decree not granted on any finding or state- ment of, § 130. Referee, proof to be on question and answer, § 130. Remarriage within one year from entry of interlocu- tory decree forbidden, § 61. Residence, actual, proof of required, § 129. Residence, length of, required of plaintiff, § 128. Residence, presumptions do not apply in proof of, § 129. Separation, consent to revocable, § 101. Separation, each spouse may have separate domicile on separation, § 129. Separation, when amounts to desertion, §§ 100, 101. Separation, when not desertion, § 99. Willful neglect defined, § 105. Willful neglect must extend year, § 107. DOG, killing sheep by, § 3341. See Animals. DOMESTIC NAVIGATION defined, § 962. Domestic ship, what is, § 963. Vessel, when engaged in, § 962. DOMESTIC RELATIONS. Divorce: See Guardian and Ward; Husband and Wife; Parent and Child. Abduction forbidden, § 49. Seduction forbidden, § 49. DOMICILE, divorce, proof of actual, required in, § 129, Guardian to select, § 248. Husband selects unfit, wife not bound, § 104. Husband to select, §§ 103, 156. In divorce, requisites in regard to, § 12S. Infant's, § 213. J?4 DOMICILE— BASEMENT. Law of, governs personal property, § 946. Separation of husband and wife, domicile in case of, § 129. Unfit, selecting, amounts to desertion, § 104. Wife, domicile of, on suit -for divorce, § 129. DOMINANT TENEMENT: See Easements. DOUBLE INSURANCE: See Insurance. DOUBTFUL WORDS in will, § 1823. In contract, § 1654. DOWER not allowed, § 173. DUEL, damages for injuries inflicted in, §§ 8347, 8348. DUPLICATE, alteration of, § 1701. Will, of, revocation of, § 1295, DURESS as ground for annulm^ent of marriage, § 82. Consent obtained by, § 1567. Consists in what, § 1569. Contract under, voidable, §§ 1567, 1689. Marriage voidable when consent obtained by force, § 58. Rescission for, § 1689. Will procured or revoked by, § 1272. EARNINGS, illegitimate unmarried minor, of, § 200. Legitimate unmarried minor, of, § 19T. Minor children, of § 169. Wife, of, §§ 168, 169. EASEMENT, apportionment of, § 807. Attached to land, enumeration of, 8 801. Attached to land, not enumerated, § 802. Dominant tenement, action by owner of, § 809. Dominant tenement defined, § 803. Enumeration of, §§ 801, 802. Extent of, § 806. Extinguished, how, § 811. Future owner, right of to, § 808. Grantable by whom, § 804. Held by whom, § 805. How far usable by expectant owner, § 808. Irrigation, right of, § 552. Lateral and subjacent support, § 882. Not attached to land, § 802. Partition of, apportionment, § 807. Servient tenement, action by owner of for possession,' i 810. EASEMENT— ESCHEAT. WB Servient tenement defined, § 803. Transfer of property carries, § 1104. What pass with property conveyed, § 1104. Who cannot hold, § 805. EJECTMENT. Damages for wrongful occupation, meas- ure of, § 3334. Tenant to give notice of, § 1949. Without notice, § 793. ELECTION, accession to personalty, election of owner, § 1032. Corporate: See Corporations. Notice of election as to delivery of chattel, § 1756. ELECTIONS. Day a holiday, § 7. ELECTRIC CORPORATION, franchise, proceedings prior to the grant or sale of, § 497. See Lighting Corporation. ELECTRICITY, rights of steam railroad to use, p. 772, Stats. Also § 465, note. ELEVATED RAILWAYS, franchise for, majority of front- age to sign petition, § 492. Franchise for, terms and conditions, § 492. Supervisors may grant franchise for, § 492. EMANCIPATION of child, § 211. EMINENT DOMAIN, crossings, railroad, condemning land for, § 472. Right of, in general, § 1001. EMPLOYMENT: See Master and Servant. ENDOWMENT INSURANCE: See Mutual Insurance on Assessment Plan. ENEMY, PUBLIC: See War. Cannot be insured, § 2540. Carrier not liable for damages caused by, § 2194. Performance prevented by, § 1511. ENROLLMENT of vessels governed by federal laws, § 966. ENTICEMENT, apprentice, of, a misdemeanor, § 275. Child from guardian, forbidden, § 49. Child from parent, forbidden, § 49. Of wife, forbidden, § 49. EQUAL RIGHTS: See Civil Rights. Proceedings where succession to estate not claimed, §§ 1405, 1406. ESCHEAT. Intestate's property escheats, when, § 1386. Property escheated, subject to charges and trusts, § 1407. When occurs, § 1406. 871 BSCROW— ESTATES TAH* ESCROW, delivery in, § 1067. Definition of, § 1057. ESTATES: See Estates of Decedents; Succession; Wills, Property, Real Property. Conveyance by heir valid unless will proved within four years, § 1364. Intestates, chargeable with debts, § 1358. May be created in a term of years, § 778. Owner of rights of in use of land, § 818. Remainder for life or term of years must be to one In esse, § 777. Rent due upon lease for life, how recovered, § 824. Successive cannot be limited except to persons in be- ing, § 774. ESTATES AT WILL are chattel interests, § 765. Not subject to execution, § 765. ESTATES FOR LIFE. Duty of owner to pay taxes, charges and assessments, § 840. Duty of owner to repair, § 840. Grant by owner of, effect of, § 1108. Legatee for life, inventory by and what to contain, § 1365. ESTATES FOR YEARS are chattels real, § 765. Grant by owner of, effect of, § 1108. Limitation on power of suspension, § 770. ESTATES OF DECEDENTS. All property of intestate chargeable with debts, § 1358. Beneficiaries' liability for testator's obligations, § 1377. Bona fide purchaser from one claiming by succession, effect of will, § 1364. Community property on husband's death subject to debts and family allowance, 8 1402. Expenses of administration and allowances to family to be first paid, § 1359. Heir's conveyance good unless will proved within four years, § 1364. Intestate's estate chargeable with debts, § 1359. Order of resort for payment or debts, § 1359. Successors liable for decedent's obligations, § 1408. See Executors and Administrators; Succession; Wills. ESTATES OF FREEHOLD defined, § 766. ESTATES TAIL, abolished, § 768. ESTOPPEL— EXCHANGE. »7I ESTOPPEL, after-acquired title inures to mortgagee, § 2930. Conveyance passes after-acquired title, § 1106. Failure to forbid act done on one's behalf, § 3519. EST RAY. Finder of property, in general, §§ 1864-1872. EVIDENCE: See Witnesses. Certificate of change of names in partnership, § 2471. Certificate of proof of instrument, what to state, § 1200. Certificate of restoration of lunatic raises presumption of capacity, § 40. Certificate of shipmaster to exertions to save vessel, § 2059. Certified copy of articles of incorporation prima facie, § 297. Condonation, evidence of, § 118. Divorce, not on uncorroborated, § 130. Execution of instruments, proof of, when not acknowl- edged, § 1195. Handwriting proved, how, §§ 1198, 1199. Insurance, of loss, § 2634. Marriage, how proved, § 57. Oral stipulations, etc., superseded by writing, § 1625. Record of inventory of wife's property, § 166. Records, certified copies of instruments defectively ex- ecuted as evidence, § 1207. Register of partnership names as, § 2471. Subscribing witnesses, manner of proving instrument by, §§ 1196-1199. EXCAVATION, right .of, by lateral owner, § 832. EXCEPTIONS. General authoritv of agent, exceptions to, § 2322. EXCHANGE, bill of: See Negotiable Instruments. Defined, § 1804. Deposit for, §§ 18l3, 1818, 1878. Form of contract, § 1805. Loan for, §§ 1902-1906. Loan for: See Loan. Parties have rights of buyers and sellers, § 1806. Personalty passes by, when, § 1140. Personalty passes under executory agreement, when, § 1141. Title when only transferred by executory agreement of § 1142. Warranty of money, § 1807. 878 EXlX:rUTION— EXECUTOR AND ADMINISTRATOR. EXECUTION. Alimony and counsel fees, execution for, § 1S7. Estates at will not subject to sale under, § 765. Exemption of estates at will, § 765. Franchise may be sold under, § 388. Franchise, sale of, duties and liabilities, § S91. Franchise, sale of, redemption of, § 392. Franchise, sale of, where made, § 393. Homestead not subject to, generally, § 1240. Homestead subject to, when, § 1241. Lien of officer, § 3057. Mortgaged personalty, against, §§ 2968-2970. Mortgaged property, how levied on, § 2969. Mortgaged property, sale under attachment and dis- position of proceeds, §§ 2968, 2970. Principal bound by, incomplete, § 2331. Principal whether bound by, in excess, § 2333. Redemption of franchise, § 392. EXECUTOR AND ADMINISTRATOR: See Estate of De- cedent. Apprenticing minor, § 265. Apprentice or clerk, power of to bind child as, § 267. Authority given to to appoint executor is void, § 1372. Authority of, before qualification, § 1373. Chose in action, when passes to, § 954. Corporation, act authorizing to act as, p. 702. Devise, specific, may be authorized to sell, § 1363. Disaffirmance by, of infant's contract, ? 35. Executor according to the tenor of will, § 1371. Executor not to act until qualified, § 1373. Expense of administration, order of payment, § 1359. Foreign, satisfaction of mortgage on record by, § 29391^. Legacy, specific, may be authorized to sell, § 1363. Person intended as executor but not named, appoint- ment of, § 1371. Property specifically bequeathed, may be authorized to sell, § 1363. Power to bind minor as apprentice, § 265. Qualified, not to act till, § 1373. Rights of one who was intended to be appointed, S • 1371. Specific bequest, may be authorized to sell, § 1363. Stock of decedent, executor to represent, § 313. Wages of deceased seamen, § 2062. See Estates of Decedents; WiUa. fiXBCUTORY— FACTOfl. >n^ EXECUTORY, agreement for sale of real property, § 1731. Agreement transfers title, when, § 1141. Consideration, § 1609. Consideration ascertained, how, § 1611. Consideration need not be stated, § 1610. Contract of marriage to be in writing, § 1624. Contract defined, § 1661. Contract, covenants when required by, § 1733. Grant on condition precedent, § 1110. Instrument, implied warranty on sale, § 1774. EXEMPLARY DAMAGES: See Damages. EXEMPTIONS. Assignment for creditors, exempt proper- ty does not pass, § 3470. Homestead, of, §§ 1240, 1241. Homestead sale, of, proceeds of, § 1257. Moneys arising under mutual assessment contract, § 453k, Shares in building and loan associations, exemption of, § 643. EXONERATION, carrier of, on delivery of bill of lading, § 2131. Gratuitous pledge holder, of, § 2995. Guarantors, of, § 2819. Innkeeper, of, § 1860. Lender, of, from liability, § 1892. Owner, of, from claim of finder, § 1871^ Partner, of, on renunciation of future profits, § 2417. Shipmaster, of on abandonment, § 2041. Surety, of, §§ 2840, 2845. See Suretyship. EXPECTANCY, insurable interest in, §§ 2547, 2549. Mere expectancy is not an interest, § 700. EXPECTANT ESTATES: See Future Interests. EXTENSION of existence of corporations, §§ 401, 402. Of time of sale of stock, § 345. FACT, actual fraud, question of, § 1574. Concealment makes condonation void, § 120. Fraudulent intent, question of, § 3442. Mistake defined, 1577. Mistake of foreign law, a mistake of, § 1579. FACTOR, actual authority of, § 2368. Agent, factor as, § 2367. Barter by, § 2368. Consignments: See Consignment. 880 FACTOR— FENCES. Credit by, § 2028. Credit, power to sell on, § 2368. Defined, §§ 2026, 2367. Del credere, §§ 2029, 2794. Delegation of authority by, § 2368. Guaranty, § 2794. Guaranty commission, liability on, § 2029. Guaranty of sales by, need not be written, § 2794. Instructions, duty to obey, § 2027. Insurance by, § 2368. Liability, cannot relieve himself from, § 2030. Lien of, § 3053. Mortgage by, § 23eS. Obedience required from, § 2027. Ostensifble authority of, § 2369. Pledge, no power to, § 2368. Sale by^ for reimbursement, § 2027. Sale by, on credit, § 2028. FAIR: Agriciltural fair corporations, §§ 620-6M. FALSE REPRESENTATIONS: See Fraud; Insurance. FARE: See Carrier; Railroad. FATHER: See Parent and Child. FEE SIMPLE defined, § 762. Limiting upon a fee, § 773. Owner in, surface and everything above and below be- longs to, § 829. Title, when presumed to pass, § 1105. What estates are fees, § 762. Words of inheritance unnecessary, § 1072. Word heirs not necessary to pass, § 1329. FEES, recorder's, § 1165. Foreign conwrations, fees required of, p. 772, Stats,; § 409. FEE TAIL abolished, § 763. FELONY, ground for divorce, § 92. Limitation of action of divorce for, § 124. Warehouseman, violation of law by, § l§58f. FEMALE under eighteen, minor, § 25. Of fifteen may marry, § 56. FEME COVERT: See Husband and Wife; Married Wo- man. FENCES, coterminous owner bound to maintain, § 841. Division, §§ 801, 841. Basement, an, § 801. FENCES— riRB PA'TROL. «tt Railroad's duty and liability respecting, § 485. Tenant for life to repair, § 840. See Real Property. FERRY, rights and duty of wagon road corporations re- specting, § 514. Statutes governing ferry corporations apply where owned by individual, § 531. See Bridge, Ferry, Wharf, Chute and Pier Corporations. FICTITIOUS name in partnership, §§ 2466, 2467. Payee, § 3103. FILING, affidavits of sale of delinquent stock, § 348. Articles of incorporation, § 296. Articles prerequisite to, §§ 293, 296. Articles, duty of secretary of state, § 296. Inventory of wife's separate property, §§ 166, 166. FINDER, abandoned thing, § 1872. Claimant to prove ownership, § 1866. Compensation for expenses, § 1867. Duty of, § 1865. Exoneration of owner by surrender of property to, § 18T1. May put thing found on storage, § 1868. Not bound to take charge, § 1864. Obligations of, § 1864. Reward of, § 1867. Sale of thing found, §§ 1869, 1870. Surrender of thing found to, § 1871. To notify owner, § 1865. See Lost Property. FIRE, deposit, involuntary, § 1815. Trefble damages for setting, § 3346a. Warehousemen, when only liable for, § 1858e. Water company to furnish water free in case of, § 549. FIRE INSURANCE: See Insurance. FIRE INSURANCE COMPANIES: See Insurance Corpora- tions. FIRE PATROL, act giving underwriters power to equip, § 453a, note. Assessment to maintain, how collected, § 453c. Assessment to sustain, how apportioned, § 453c. Duties and powers of, § 453a. Expenses of, limit upon, § 453c. Fire insurance companies noiay maintain, § 453!a- Ctvll Cod«— 56 IS2 FIRE PATROL^FOREIGK. Injuries to animals or property of, punishment of, § 453b. Laws and ordinances protecting fire department, apply to, § 453b. Maintenance of, statement of premiums, corporations to file, § 453c. Maintenance of, statement of premiums, demand for, § 453c. Maintenance of, statement of premiums, failure to file, penalty and collection, § 453c. Meeting of corporations interested to be held yearly, § 453c. Meeting of corporations, majority to decide all ques- tions, § 45^. Meeting of corporations, right to vote, § 453c. Obstruction of on way to fire, punishment of, § 453b. Power to enter buildings and take property, § 453a. Right of way while running to fires, § 453b. Underwriters may maintain, § 453a. FISH, right to take, §§ 801, 802. FIXTURES are what, § 660. Attachments to mines, what are fixtures, § 661. In general, § 1013. Mines, attached to, § 6C1. Mortgage a Hen on, § 2926. Ownership of, § 1013. Tenant may remove what, § 1619. Thing when deemed to be affixed, § 660. FLUME, water company's duty respecting, § 561. FORCE: See Duress. FORECLOSURE of mortgages, § 2%7. Of right to redeem pledge, § 3011. * Right of redemption, foreclosure of, § 2931. FOREIGN bill, acceptance and payment for honor, S8 3203. 3233. • '*'* Bill, damages for dishonor of, §§ 3234-3238. Bill, protest of, when excused, § 3230. Bill, protest necessary, § 3225. Bill, waiver of protest and effect of, § 3232. Building and loan associations, § 645. Corporation, liability of stockholders, § 322. Country, sale by corporation of property, franchises or concessions in, § 364. Executor, discharge of mortga^fe by, § 2939^. FOREIGN— FORUM. 883 Law, mistake of is mistake of fact, § 1579. Marriage, ralidity of, § 63. Mutual insurance company must have |200,(H)0 cash assets, § 419. Navigation defined, § 962. Partnership, fictitious name, § 2467. Ship defined, § 963. Will, validity of, § 1285. FOREIGN CORPORATIONS: See Corporations, XVIII. Railroad corporations, act authorizing doing business equal terms, p. 764. FOREIGN WILLS, validity of in this state, § 1285. FOREIGNERS: See Alien. FORFEITURE, conditions involving, strictly construed, § 1442. Contract for, .yt property subject to lien, § 2889. Conveyance in excess of title does not work, § 1108. Homestead corporations, § 562. Powers cf railroad corporation for nonuser, § 468. Railroad, forfeiture for want of operation of, p. 765, Stats. Relief in case of, § 3275. Remedies of grantee or devisee of rent or reversion on, § 821. Servitude, for nonuser, § 811. Specific or preventive relief not granted to enforce, § 3369. Street railroad, by, for failure to commence or com- plete road in time, § 502. Wages of seamen, grounds for, § 2063. FORM. Acknowledgment by corporation, § 1190. Certificate of acknowledgment, of, § 1189. Certificate of acknowledgment by attorney in fact, § 1192. Certificate of acknowledgment by corporation, § 1190. Certificate of acknowledgment by married woman S 1191. ' ^ Chattel mortgages, § 2956. Covenants in execution of executory contract, § 1734. Dishonor, form of, § 3143. Grant of, § 1092. Marriage, of solemnizing, § 71. Notice of assessment, § 335. Notice of delinquency, § 337. Notice of dishonor, § 3143. 884 FRATERNAL SOCIETY— FRAUD. Notice of tenant at will to quit, § 789. Personal mortgage, § 2956. Protest, § 3227. Real mortgage, § 2948. Warranty in policy of insurance, § 2604. FRANCHISE, execution sale of, place, § 393. Execution purchaser of, rights and duties of, §§ 389, 390. Forfeiture of railroad, § 468. Ordinances granting, acts, validating, p. 763. Property, franchise as, § 388. Railroad, right to purchase franchises of other roads, §§ 465, 494. Railroad, acts relating to sale of and governing con- ditions of sale, pp. 753-762. Redemption, § 392. Sale of franchises in foreign country, § 364. Telegraph or telephone, transfer of, § 540. Time within which street railway franchises may be sold, act limiting, p. 773. Transfer of, by corporation: See Corporations. See Corporations. FRATERNAL CORPORATION: See Religious, Social, and Benevolent Corporations. , Mutual life, etc., insurance corporations, §§ 437-452. FRATERNAL SOCIETY, exempt from insurance laws, § . 451. Not insurance corporations, § 451. Not governed by laws relating to mutual assessment . corporations, § 453p. FRAUD, actual, a question of fact, § 1574. Actual or constructive, § 1571. Actual, what constitutes, § 1572. Agent not authority to defraud principal, § 2306. Apprenticeship, ground for annulling, § 276. As affecting right to specific performance, § 3391. As ground for annulment of marriage, § 82. By-bidding, § 1797. Carrier, cannot exonerate from liability for, § 2175. Consent obtained by, § 1567. Contract deemed obtained through, §§ 1568, 1571, 1572 1573. Contract for exemption from one's own, void, § 1668. Contract obtained through, voidable, §§ 1566, 1567 1689. 5TIAUD— FRAUDUI^ENT CONVEYANCE. 885 Contract prevented from being put in writing by, en- forced when, § 1623. Constructive, defined, § 1573. Constructive or actual, § 1571. Deceit, §§ 1709-1711. Desertion induced by, § 98. Disregarding erroneous parts of writing, § 1640. Effect on oral contract not in writing through fraud, § 1623. Enforcing oral contract against fraudulent party, § 1623. Exemplary damages in case of, § 3294. Instrument, power to revoke, when deemed executed, §§ 1229, 1230, 1231. Instrument, creditor, when can avoid, § 3441. Instrument, when makes void against purchaser, § 1227. Instrument, when void against creditors, § 3439. Insurance, omission to communicate avoids, §§ 2562, 2569. Insurance, return of premium for, § 2619. Insurer, when exonerated for loss through, § 2629. Intent, question of fact, § 3442. Interest as damages in case of, § 3288. Marine insurance, in valuation under, § 2736. Marriage, contracted through, § 58. Marriage, in contracting, ground for annulling, § 82. One fraudulently dispossessing himself may be treated as in possession, § 3518. Pledge, misrepresenting value of, § 2999. Reformation of contract for, § 3399. Rescission for, §§ 1689, 1690. Rescission for, what stipulations do not defeat, § 1690. Specific performance, as affecting right to, § 3391. Trust arising from, § 2224. Trustee guilty of, when, § 2234. Undue influence defined, § 1575. FRAUDULENT CONVEYANCE, assignment for creditors, when void, § 3457. Avoidance of creditors, when can avoid, § 3441. Auction sale of stock in trade at, notice to be record- ed, § 3440. Bottomry, delivery, § 3440. Chattel mortgages as, § 2957. Chattel mortgage, delivery, § 3440. 886 FRADUL.ENT CONVEYANCE— FREIGHT AND FREIGHTAGE. Consideration, transfer without, may be valid, § 3442. Creditors may avoid, when, § 3441. Debtor's contract valid, when, § 3431. Delivery of personalty necessary, § 3440. Fraud a question of fact, § 3442. General rule as to, § 3439. Instruments designed to defraud purchasers or In- cumbrances, § 1227. Judicial proceedings as, § 8439. Lien, delivery, § 3440. Mutual fraud, § 1228. Preference by special partnership, when void, § 2496. Preferences valid, § 3432. Presumption as to, in absence of delivery, etc. § 3440. Purchaser with notice, §§ 1227, 1228. Question of fraud determined, how, § 3442. Healty of, what are, §§ 1227-1231. Realty of, what not, § 1228. Reservation of interest avoids assignment for credit- ors, § 3457. Reserving power of revocation, power when executed, §§ 1229, 1230. Respondentia, delivery, § 3440. Sale of stock in trade, five days* notice of to be re- corded, S 3440. Ship or cargo need not be delivered, § 3440. Special partnership by, § 2496. Transfer of stock in trade, five days' notice to be re- corded, § 3440. Unlawful transfers, §§ 1227-1231. Void, § 3439. Voluntary transfers, effect of, § 3442. Voluntary transfers valid, when, § 3442. What transfers are, in general, § 3439. "Wines need not be delivered, § 3440. FREEHOLD defined, § 765. Estate for life is, S 765. EiState for life of third person is, § 766. ESstate of inheritance is, § 765. May conunence at fatnre day, § 773. FREIGHT AND FREIGHTAGE, abandonment of ship, § 2730. Abandonment of freightage by insurer, § 2717. Bill of lading: See Bill of Lading. Carrier exonerated from liability for^ by d^very, | 2111. FREIGHT AND FREIGHTAGE. WT Carrier's lien for freightage, § 2144. Carrier must not stow on deck, § 2117. Consignee defined, § 2110. Consignor defined, § 2110. Consignor of valuable, to declare its nature and value, § 2200. Consignor, presumed liable for freightage, § 2137. Consignor, when not liable for freightage, § 2137. Damages for carrier's refusing to carry, § 3315. Damages for carrier's failure or delay in delivery, §5 3316, 3317. Defined, §§ 2110, 2661. Delivered, where to be, §§ 2118, 2119. Delivery beyond usual route, § 2201. Duty after arrival. §§ 2120, 2121. Freightage, apportionment of, §§ 2140-2142. Freightage, how valued on general average, § 2153. Freightage, in marine insurance, defined, § 2661. Freightage, liable for contracts of shipmaster, §§ 2376, 2380. Freightage, not chargeable on increase of freight, { 2139. Freightage, payable by whom, §§ 2137, 2188. Freightage, payable, when, § 2136. ^ Insurance interest in freightage, § 2662. Insurable interest, when exists, § 2663. Liability of Inland carriers for loss, § 2194. Liability of marine carriers for loss, § 2197. Marine insurance, freightage in, §§ 2661-2668. Master of ship may hypothecate, § 2377. Notice of arrival, when necessary, § 2120. Proof in case of loss of through freight, § 2202. Sale of perishable property for, § 2204. Seaman has lien upon freightage, § 3056. Shipmaster has lien npon freightage, § 3055. Ship's manager cannot give np lien for, § 2389. Ship's manager may settle for freightage, § 2388. Stored by carrier, when proper, § 2121. Value of in estimating loss nnder open policy, § 2741. Wages of seamen, §§ 2054, 2058. When carried farther than agreed, § 2148. Who liable for, $ 2137, 2138. Whose directions govern delivery of, § 2115. See Carrier. 188 rRIENDLY SOCIETT— FUTURE INTBRKBTS. FRIENDLY SOCIETY, limitation on amount of land held by, § 596. See Religious, Social, and Benevolent Corporations. FURTHER ASSURANCE, covenant of, § 1788. Covenant Tuns with land, § 1463. FUTURE, present includes, § 14. Representation as to, effect of, § 2574. Warranty as to future event, §§ 2608, 2609. FUTURE ESTATE, may he limited on termination by any means of precedent estate, § 767. May be limited without intervention of a precedent estate, § 767. Remainder, future estate when called, § 769. Remainders: See Remainders. Right of owner to use easements, § 808. See Future Interests. FUTURE INJURIES, damages for, § 8288. FUTURE INTERESTS, accumulations: See Accumulations. Alternative, may be in, § 696. Are vested or contingent, § 693. Contingent, when, § 695. Defeat, birth of posthumous child defeats, when, § 739. Defeat, what defeats, § 741. Defeated, not by any act of owner of Intermediate es- tate, § 740. Defeated, not by determination or destruction of In- termediate estate, §§ 741, 742. Defined, § 690. Heirs and issue, meaning of, § 1071. How may be defeated, § 740. Lien may be created on, § 2883. Lien on, when attaches, § 2883. Not void because it may be defeated, § 740. Not void because of improbability of contingency, J 697. Pass by will and transfer same as present interests, § 699. Power of appointment, effect of on, § 781. Rights of posthumous child, § 698. Suspending power of alienation, §§ 715, 716. Time of creation of, § 749. Vested, when, § 694. What only recognized by code, § 708, BTJTURE INTER5STS— GOAl^. W9 Who entitled to income where no disposition of it, 8 733. GAME, right to take, §§ 801, 802. GAMING insurance,, void, § 2558. GAS CORPORATION, application for gas to use, § 629. Damages for refusal to furnish gas, § 629. Deposit as condition for furnishing gas, § 630. Inspection of meters, liability for refusing, § 631. Inspection of meters, right to, § 631. Meters, agent of corporation may inspect, § 681. Meters to be used, § 628. Penalty for refusal to furnish gas, § 629. Privilege to be obtained from city or town, § 628. Refusal to furnish gas, § 629. Shutting off gas for refusal to pay, § 632. See Lighting Corporations. GENDER of words in code, § 14. GENERAL AVERAGE, adjusted how, § 2152. Adjustment, validity, § 2152. Defined, § 2148. Goods stored on deck, § 2154. In general, §§ 2148-2155. Insurance, free from, § 2711. Marine insurer liable for, §§ 2711, 2744. Shipmaster may adjust, § 2388. Valuation, time of ascertaining, § 2153. Values, ascertained how, § 2153. GIFT, ademption of legacy, § 1357. Causa mortis, defined, § 1149. Causa mortis, effect of will on, § 1152. Causa mortis, presumed when, § 1150. Causa mortis, revocation of, § 1151. Causa mortis, treated as legacy, when, § IIM, Community property, of, § 172. Defined, § 1146. Delivery necessary, § 1147. Made how, § 1147. Revocable, not, § 1148. Revocation of, bona fide purchaser, § 1161. Revocation of gift causa mortis, § 1151. Satisfying before death, § 1867. Subscribing witness, to, §§ 1282, 1283. 9OAT8: See Animals, 896 (5O0D FAITH— GUARANTY. GOOD FAITH, agent indemnified for advance made in, § 2344. Agent, whether bound by act in, § 2343. Offer of performance, to be in, § 1493. Partner, bound to highest, § 2411. Partner, when not bound by act not in, § 2431. Principal bound to persons acting in, § 2334. Trustee, bound to highest, § 2228. GOODWILL, definition, § 992. Does not include right to use name, § 92. Is transferable, § 993. Name of business may be transferred with, § 993. Of business, §§ 992, 993. Ownership, subject of, § 655. Partner may not dispose of, § 2430. Property, is, § 655. Sale of, restraint of trade, § 1674. Subject of ownership, § 655. Warranty on sale of, § 1776. GRACE, days of, not allowed, § 3181. GRANT, defined, § 1053. Includes whatever is essential to use, § 8522. Power to revoke or modify, when deemed executed, §§ 1229, 1230.' Re-entry, when and how made, § 791. Time of creation of interest created by, § 749. See Conveyance. GREATER contains less, § 3536. GROWING CROP: See Crops. Lien of mortgage continues after severance, § 2972. GUARANTY: See Indemnity; Suretyship. Acceptan<;e, notice of, § 2795. Collectibility, of, § 2800. Collectibility, of, liability, recovery and discharge on, §§ 2801, 2802. Conditional, guaranty deemed unconditional, § 2806. Conditional, obligation, of, liability on, § 2808. Consideration for, § 2792. Consideration, writing need not express, § 27S3. Construed, how, § 2806. Continuing, defined, § 2814. Continuing, revocation of, § 2815. Defined, § 2787. Demand not necessary to liability, § 2807. Disability of principal, effect of, § 2810. GUEANTY— GUARDIAN AND WARD. Wl Enumeration of original, § 2794. Factor del credere, § 2794. Guarantor's liability cannot exceed principaFs, § 2809. Illegal contract, guarantor not liable on, § 2810. Incomplete contract of, what implied in, § 2799. Indemnified guarantor, effect of alteration of contract, § 2824. Indorser has rights of guarantor, § 3121. Knowledge of principal not necessary, § 2788. Letter of credit, §§ 2858-2866. Letter of credit may be continuing, § 2864. Liability on, accrues when, § 2807. Notice not necessary to liability, § 2807. Notice of acceptance, § 2795. Notice of default, necessity of, § 2808. Original, enumeration of, § 2794. Original, when deemed, § 2794. Part performance as affecting obligation, § 2822. Principal's disability does not affect, § 2810. Principal's contract void, effect of, § 2810. Reduced by partial performance, § 2822. Release, alteration of contract is not where guarantor indemnified, § 2824. Release by alteration of contract, rescission of altera- tion does not affect, § 2821. Release of, § 1543. Release by altering obligation of principal, § 2819. Release by impairing remedies against principal^ § 2819. Release, delay of creditor does not work a, § 2823. Release, discharge of principal by act of law does not work a, § 2825. Release, effect of part performance as a, § 2822. Release, void promises do not work a, § 2820. Revocation of continuing, § 2815. Statute of frauds, § 1624. Surety has rights of guarantor, § 2844. Time when liability on, accrues, § 2807. Unconditional, so deemed, unless, § 2806, Written, must be, § 2793. "Written, need not be, when, § 2794. See Indemnity; Suretyship GUARDIAN AND WARD, abduction of ward, § 49. Ad litem guardian, § 42. Appointment of by will, § 241. CFDARDIAN AND WARD. Appointment, superior court may appoint guardian, in what cases, § 243. Apprenticing ward, § 265. Corporation, act authorizing to act as executor, p. 723. Custody of minors, rules for awarding, § 246. Custody of ward, guardian of person has, § 248. Damages for holding over, § 3325. Death of joint guardian, § 252. Discharge ot guardian after ward's majority, § 257. Education of ward, guardian of person must look to, § 248. Enticement of ward from guardian, § 49. Father, appointment of guardian by, § 241. Guardian ad litem, § 42. Guardian appointed by parent, superseded how, § 254. Guardian defined, § 236. Guardian, discharge, when entitled to, § 257. Guardian, general, defined, § 239. Guardian, general, rules for appointing, § 246. Guardian, joint, death of, § 252. Guardian, removal of, grounds for, § 253. Guardian, special, defined, § 240. Guardian under direction of court, § 251. Guardian, who may appoint by will or deed, § 241. Guardians are special and general, § 238. ' Guardianship, dissolved by what, § 254. Health of ward, guardian of person must look to S 248. ^ Illegitimate child, mother may appoint guardian, § 241. Joint guardian, § 252.- * Joint guardian, death of, -power of survivor, § 252. Jurisdiction over guardian, court appointing has exclu- sive, § 245. Majority, attainment to terminates authority of guar- dian, 8 255. Marriage of ward terminates authority, § 255. Marriage of ward, co^sent of guardian when neces- sary, § 69. Mother may appoint guardian,' when, § 241. No one can act as guardian of property without ap- pointment, § 242. Nonresident minor, guardian Dt property may be an- pointed, § 244. Orphan asylum, guardians for infants maintained in n 723, Stats. ^ i » p. GtTARDIAK AND WARD— HEIR. th Orphan asylum, managers have preferred right to guardianship, when, § 246. Parent failing to maintain child forfeits guardianship, §246. Parental authority ceasef? on appointment of, § 204. Permitting child to rempjn in orphan asylum without notice forfeits guardianship, § 246. Power over person and property, guardian has, § 247. Property of ward, duties of guardian of property, gen- erally, § 249. Relation, confidential, § 250. Release by ward to guardian, § 256. Removal of guardian, grounds for, § ^3. Residence, guardian may not fix out of state, § 248. Residence of ward, guardian may fix, § 248. Stockholder, guardian as, § 322. Stockholder, liability of funds in guardian's hands, § 322. Superseded, guardian is, how, § 254. Support of ward, guardian of person must look to, § 248. Suspended, powers of guardian, when are, § 255. Terminated, guardianship is by what acts, § 254. Termination of powers of guardian, what effects, § 255. Testamentary guardian, power to appoint, § 241. Ward defined, § 237. Ward may own stock in homestead, § 661. ^ard, release by, § 256. GUEST: See Innkeepers. HABITUAL INTEMPERANCE, divorce for, §§ 92, 107. HALF BLOOD, inheritance by kindred of, § 1394. HANDWRITING, how proved, § 1199. When may be proved, § 1198. HEAD OF FAMILY, husband as, § 156. See Homestead. HEALTH INSURANCE: See Mutual Insurance on As- ses^smeni Plan. HEALTH INSURANCE CORPORATIONS: See Insurance Corporations. HEIR, interpretation of, § 1071. Legitimacy, may dispute, § 195. Minor's, disaffirmance of contract, § 35. Of tenant for life, taking as purchaser, § 779. B9i HEIR— HnilNG. Warranty of ancestor, liability on, § 1115. Word "heirs'* not necessary to pass fee, § 1323. See Succession. HIGHWAY, conveyance of land bounded by passes what, § 1112. Franchises for railroiads on, acts relating to, pp. 759- 763. Owner presumed to own to center, § 831. Railroad crossing, how to acquire other land, § 472. Tolls not to be charged on public, § 515. Water company must not obstruct, § 551. See Wagon Road Corporation. HIRING, apportionment of hire, § 1935. Care required of hirer, § 1928. Charter-party defined, § 'l959. Charter-party, master may enter into, § 2376. Defined, § 1925. Deteriorations or injuries, duty to repair, § 1929. Expenses, extraordinary, § 1957. EiXpenses, ordinary, § 1956. Expenses, power of hirer to meet, § 1957. Expenses, who must bear, §§ 1956, 1957. Hirer may terminate hiring before end of term, when, § 19^*^ Hirer to use property only for purpose hired, § 1930. Hirer using for different purpose, rights of letter, § 1930. Injuries, hirer to repair, § 1929. Letter's obligations, § 1955. Letter to put thing in fit condition, § 1955. Lodgings for indefinite time, § 1944. Particular use for, § 1930. Products of thing belong to hirer, § 1926. Quiet enjoyment, lessor to secure, § 1955. Quiet possession, § 1927. Real property of. See Landlord and Tenant, Repairs, letter's obligation as to, § 1955. Return of thing, § 1958. Return of thing, place of, § 1958. Ships, of, § 1959. Terminated by death or incapacity, when, § 1934. Terminated by destruction, § 1933. Terminate, hirer may before end of term, when, ^ 1932. Terminates, when, § 1933. HIRING— HOMESTEAD. W» Terminate, when letter may, § 1931. Termination before time, apportionment, § 1935. See Landlord and Tenant; Loan. HOLIDAY, acts not to be done on, § 11. Business days, what are, § 9. Enumeration of, § 7. Falling on Sunday, §§ 7, 8. Last day falling on, excluded, § 10. Maturity of negotiable instrument where last day falls on, § 3132. Performance on following day, § 11. HOMESTEAD: See Homestead Corporation. Abandonment, declaration of, § 1243. Abandonment, declaration of not effectual unless filed, § 1244. Abandonment how, § 1243. Acknowledging conveyance or encumbrance, § 1242. Acknowledging selection, §§ 1262, 1266. Appraisement, notice of time and place of hearing, § 1248. Appraisement of, application for, made how, § 1246. Appraisement of, division ordered when, § 1253. Appraisement of, filing petition for, § 1247. Appraisement of, service of petition, § 1248. Appraisement of, when may be had, § 1245. Appraisers, appointment of, § 1249. Appraisers, compensation of, § 1258. Appraisers, duties of^ § 1251. Appraisers, oath of, § 1250. Appraisers, report of, time to file, § 1252. Appraisers, report of, proceedings on, §§ 1253-1259. Appraisers, setting off property where it can be di- vided, § 1253. Community, selecting from, § 1238. Complete, when, §§ 1265, 1269. Consists of what, § 1237. Conveyance of, acknowledgment of, § 1242. Conveyance in case of insanity of spouse, p. 718, Stats. Corporation: See Homestead Corporation. Costs of proceedings to subject to creditor's demand. § 1259. ^ Death of spouse, to whom descends, § 1265. Debts, frr what liable, § 1241. Debts, liability for, § 1265. Declaration must contain what, §§ 1263, 1267. HOMESTEAD. Declaration of al)andonmeiit, §§ 1243, 1244. Declaration of, by other than head of family to be acknowledged, § 1266. Declaration of, recording, §§ 1262, 1264, 1268, 1269. Declaration of to be acknowledged and filed, § 1262. Divorce, how disposed of, on, § 146. Execution, not subject to except, etc., § 1240. Execution, when subject to, § 1241. Exemption, §§ 1240, 1241. Exemption of proceeds of sale, § 1257. From what property may be selected, § 1238. Head of family, who is, § 1261. Incumbrance of, acknowledgment of, § 1242. Insane persons, of: See Insane Persons. * Insanity of spouse, conveyance or mortgage in case of, p. 718, Stats. Liability of, in general, § 1265. Liens, for what liable, § 1241. Mortgages, for what liable, § 1241. Mortgage of, manner of, § 1242. Mortgage in case of insanity of spouse, p. 718, Stats. Other persons, of, selection of, § 1266. Probate, of what consists, § 1237. Property from which may be selected, § 1238. Recording declaration, §§ 1262, 1264, 1268, 1269. Recording selection, §§ 1262, 1268, 1269. Sale of, bids which may be received, § 1255. Sale of, disposition of proceeds, § 1256. Sale of, exemption of proceeds, § 1257. Sale of, when muy be directed, § 1254. Selected from what property, § 1238. Selection by other persons, acknowledgment of, § 1266. Selection by other persons, declaration to be recorded in county, § 1268. Selection by other persons, declaration to contain what, § 1267. Selection by other persons, land becomes homestead, when, § 1269. Selection by persons other than head of family, man- ner of, § 1266. Selection from wife's property, consent necessary, § 1239. Selection, mode of, § 1262. Selection of homestead of other persons, § 1266. Separate property of spouse, § 1238. Succession to on death of spouse, § 1265. HOMESTEAD— HOURS OF LABOR. JOi Tenure by which held, § 1265. Title perfected, when, §§ 1265, 1269. Value, limitation of, § 1260. Value, where selected by head of family, § 1260. What consists in, § 1237. What may be selected frcm, § 1238. What may not be selected from, § 1239. When complete, §§ 1265, 1269. HOMESTEAD CORPORATION, annual report and its pub- lication, §§ 565, 566. Articles, copy of to be furnished stockholder, § 558. Borrowing and loaning money, § 560. By-laws, copy of to be furnished stockholder, § 558. By-laws to specify what, § 558. Delinquent shares, advertisement and s'ale of, § 559. Forfeited shares, advertisement and sale of, § 559. Forfeiture for owning lands in excess of two hundred thousand dollars, § 562. Forfeiture for speculating in lands, § 562. Infants may own stock, § 561. Installments, by-laws to specify what, respecting, § 558. Interest, rate of on borrowed money, § 560. Loaning and borrowing money, § 560. Miarried women may own stock in, § 561. Premiums, payment of, § 564. Publication of annual report, §§ 565, 566. Sale of delinquent and forfeited shares, § 559. Statute authorizing formation of corporations to pro- vide homesteads for members, p. 718. Terminated when and how, § 563. Termination of, division and disposition of property, § 563. Termination of, dividends on, § 563. Time of corporate existence, § 557. Wards may own stock, § 561. See Homestead. HORSELESS VEHICLES, franchises for roads for, § 524. HOTELS. All citizens to have equal rights, § 51. Denial of equal rights in, punishment for, § 52. HOTEL-KEEPER: See Innkeepers. HOSPITAL, corporation for hospital purposes cannot take by will unless expressly authorized, § 1275. HOURS OF LABOR, minors, of, acts regulating, pp. 721, 722. Civil Code-57 898 HUMBOLDT COUNTY.— HUSBAND AND WIFE. HUMBOLDT COUNTY, tolls in, § 514. HUSBAND AND WIFE, abduction of spouse, § 49. Children: See Parent and Child. Community, consent of wife to convey or give, § 172. Community, conveyance or incumbrance of furniture, clothing, etc., consent of wife, § 172. Community defined, § 687. Community, gift by husband, § 172. Community, includes what, § 164. Community, limitation of action to show property was, § 164. Community, on husband's death, subject to debts and allowances, § 1402. Community, power of husband over, § 172. Community, testamentary disposition of, § 172. Community, when not liable for wife's contracts, § 167. Contracts between and with others, capacity to make, § 158. Contract between, not to impair their legal relations, § 159. Contract for separation, §§ 159, 160. Cotenancy between, § 161. Curtesy not allowed, § 173. Custody of children: See Custody. Custody of children, when wife may obtain, § 214. Dividends on stock payable to married woman, §§ 325, 575. Domicile, husband may fix, §§ 103, 156. Domicile of wife on suit for divorce, § 129. Domicile, on separation of, § 129. Domicile, selecting unfit, amounts to desertion, § 104. Dower not allowed, § 173. Dwelling, neither can be excluded from other's, § 157. EJnticement of wife forbidden, § 49. Head of family, husband as, § 156. Homestead, wife may own stock in, § 561. Hnsb'and's rights and liabilities respecting stepchil- dren, § 209. Husband's rights of as head of family, § 156. Husband's separate property not liable for wife's debts before marriage, § 170. Husband's separate property includes what, § 163. Inheritance by: See Succession. Interests in property separate, § 157. Inventory of wife's estate, filing is notice, § 166. HUSBAND AND WIPE. WS Inventory of wife's separate estate, § 165. Joint tenancy between, § 161. Legitimacy of issue: See Bastards; Legitimacy. Maintenance without divorce, § 137. Marriage settlement by minor, § 181. Marriage settlement, effect of recording, § 180. Marriage settlements, how executed, § 178. Marriage settlement to be acknowledged and recorded, §§ 178, 179. Married woman. See Married Woman. Mode of living, husband may choose, § 156. Mutual obligations of, § 155. Necessaries furnished wife, liability of husband, § 174. Obligations, mutual, § 155. Pfesumption on conveyance to, § 164. Presumption when property conveyed to wife, § 164. Presumption when property conveyed to wife and third person, § 164. Property interests, separate, § 157. Property, neither has interests in, of other, § 157. Property, of, modes by which may be held, § 161. Property rights of, code sections governing, § 177. Seduction of wife forbidden, § 49. Separate property, what is, §§ 162, 163. Separate property, presumption where property con- veyed to wife, § 164. Separate property of wife, liability of for debts, § 171. Separation, consideration of contract for, § 160. Separation, contract for, §§ 159, 160. Separation, custody of children, § 214. Settlement, marriage, by minor, § 181. Settlements, marriage, effect of recording, § 180. Settlements, marriage, how executed, § 178. Settlements, marriuge, to be acknowledged and record- ed, § 179. Signature of husband not necessary on transfer of stock, § 325. Signature of husband not necessary to proxy, § 325. Stepchildren, husband's duties and liabilities as to § 209. Stock, transfer of by married women, § 325. Support of husband, when wife liable for, § 176. Support of wife, husband liable for, § 174. Support of wife, husband not liable for, when aban- doned by wife, § 175. wO MtJSBAND AND WIPE>— INMB. Support of wife living separate by agreement, husband not liable for, § 175. Tenants in common, § 161. Wife's earnings not liable for husband's debts, § 168. Wife's earnings separate money, when living apart, § 169. Wife's estate, inventory of, §§ 165, 166. Wife's property liable for her debts, § 171. Wife's property not liable for husband's debts, § 171. Wife's separate property includes what, § 162. Wife: See MaiTied Woman. HYDRAULIC MINING, §§ 1424, 1425. Defined, § 1425. Where can be carried on, § 1424. IDENTIFICATION of contracting parties, § 1558. IDIOT: See Insane Persons. IDLE ACT, law does not require, § 3532. ILLEGITIMATE: See Bastards; Legitimacy. IMPOSSIBILITY, ascertaining consideration, of, §§ 1612, 1613. Ascertaining object of contract, of, § 1596. Condition void because of, § 1441. Defined, § 1597. Everything deemed possible except, etc., § 1597. Law does not require, § 3531. Of condition precedent, § 1347. Performance, of, when avoids contract, § 1598. What deemed to be possible, § 1597. I M POTENCY as ground for annulment of marriage, § 82. IMPROBABILITY of contingency, future interest, § 697. INCAPACITY, physical, ground for annulling marriage, § 82. Terminates hiring, § 1934. Terminates agency, § 2355. To consent, ground for nullity of marriage, § 82. To contract, §§ 39, 40. See Insane Persons. INCEST, judicial declaration of incestuous marriage, § 80 What marriages are incestuous, § 59. INCIDENT passes with principal, §§ 1084, 1656, 3540. Transfer of, does not pass principal thing, § 1084. INCOME, accumulations of, §§ 722-733. Accumulations: See Accumulations. INCOME— INDEMNITY. 801 Allowance out of, § 726. Bequest of, when accrues, § 1S66. Defined, § 748. Disposition of, governed how, § 722. Undisposed of, who entitled to, § 733. INCREASE: See Accession. Freightage not charged for natural, of freight, § 2139. Pledged, of property, § 2989. Property, of, belongs to owner, § 732. Property, of hired belongs to hirer, § 1926. Property, of lent belongs to lender, § 1885. INCUMBRANCE: See Chattel Mortgage; Lien; Mortgage. Damages for breach of covenant of, § 3304. Implied covenants against, § 1113. Recorded instruments as notice to although defective, curative act, § 1207. INCUMBR.ANCER. Grant as revocation in favor of, when, § 1229. Grant, how far conclusive as to, § 1107. Incumbrancer defined, § 1114. Incumbrance imposed on devised property, § 1302. Incumbrance includes what, § 1114. Instruments, when void against, § 1227. Instruments, when not void against, § 1228. Lien of seller or buyer not valid against, § 3048. Measure of damages for breach of covenant against incumbrance, § 3305. Mortgage, effect of, against subsequent, § 2957. Obligation respecting real property not enforced against subsequent, § 3395. Resulting trust not to prejudice, § 856. Rights of under devisee, when not impaired by his con- veyance, § 1864. Transfers void against, § 3440. INDEMNITY: See Guaranty; Suretyship. Action^ to recover, § 2777. Agents, acts of indemnity covers, § 2775. Agreement of, covers acts of agents, § 2775. Bond of, on transfer of stock by nonresident, S 826. Defenses to actions for recovery of, § 2778. Defined, § 2772. Includes costs of defense, § 2778. Interpretation of, rules for, § 2778. Judgment for, conclusiveness of, § 2777. Liability of indemnitor, § 2778. 9^ INDEMNITY— INFANT. Liability of Indemnitor is joint or several, § 2777. On payment of lost negotiable instrument, § 3\37. Several, to, effect of, § 2776. Sureties on, in legal proceedings called ball, § 2780. Surety, when person indemnifying is entitled to rights of, § 2779. Unlawful act, against, §§ 2773, 2774. Wrongful act, against, §§ 2773, 2774. See Guaranty; Suretyship. INDENTURE: See Apprenticeship. nO'lCTMENT, nuisance, for, §§ 3491, 3492. INDORSEMENT: See Negotiable Instruments Apprenticeship, indentures of, §§ 266, 275. Bill ol lading, of, § 2127. Marriage certificate, § 73. Non-negotiable instrument, of, § 1459. Stock, necessary to transfer, § 824. Surveyor general's, on plat of right of way, § 478. INFANT, abduction, § 49. Accumulations, §§ 722-733. Action by, guardian must conduct, § 42. Action, minor may enforce rights by, § 42. Agent, appointment of, § 38. Apprenticing: See Apprenticeship. Building and loan shares m'ay be owned by, § 648. Contract, competency to, §§ 1556, 1557. Contract rights of, § 34. Contracts of, validity, §§ 83, 84. Custody of, code provisions regulating, § 82. Delegation of power by, § 33. Disabilities of, § 33. Disaffirmance of contracts, § 85. Disaflarmance of contract for necessaries, § 36. Disaffirmance of contracts, limitation on, § 37. Disaffirmance of contracts of, by personal representa- tive, § 35. Disaffirmance of contracts, return of consideration, 9 35. Employment of, acts regulating, pp. 721, 722. En ventre, rights of, § 29. Exemplary damages against, 41. Guardian must conduct action by, § 42. Guardians: See Guardian and "Ward. Head of family, as, § 1261. Homestead stock may be owned by, § 561. INFANT— INJUNCTION. giM Hours of labor, act regulating, pp. 721, 722. Land and building shares may be owned by, § 643. Limit of term of lease of property of infant, § 718. Mlarriage, conditions restraining, § 710. Marriage of, § 56. Marriage of, consent of guardian necessary wJien, § 69. Marriage of, annulment of, § 82. Marriage settlement by, may be made, § 181. May ma'ke and withdraw deposits in savings and loan society, § 575. Necessaries, contract for not to be disaffirmed, § 36. Period of minority computed, how, § 26. Personalty not in possession, contracts respecting § 83. Posthumous children, property rights of, § 698. Real property, contracts respecting, § 33. Stock of, how represented at corporate election, § 818. Support of, out of accumulation, § 726. Torts of, liability, § 41. Unborn child, rights of, § 29. Who are, § 25. See Adoption; Guardian and Ward; Parent and Child; Apprenticeship; Societies for Prevention of Cruelty to Children and Animals; Legitimacy. INFORMATION, nuisance, for, §§ 3491, 3492. Regulated by Penal Code, § 8492. See Insurance. INHERITANCE. General rules of descent, § 1386. Words of, not necessary to pass fee, § 1072. See Succession. INJUNCTION, § 3368. Allowed In what cases, § 3366, 3422. Allowed, not, in what cases, § 3423. Court of another state, proceedings in not stayed, § 3423. Federal courts, proceedings in not restrained, § 3423. Forfeiture, not enforced, § 3369. Grounds for granting, § 3423. Is provisional or final, § 3420. Legislative act of municipal corporation not restrained, 8 3423. Mutiplicity of suits, to prevent, § 3422. Office, when not granted in cases respecting, § 3423. Penal law, not granted to enforce, § 3369. S04 INJUNCTION— INSANE PERSONS. Penalty, not enforced, § 3369. Preventive relief is granted by, § 3420. Preventive relief, how given, § 3368. Provisional, regulated by Code of Civil Procedure, § 3421. Statute, enforcement of not restrained, § 3423. Thrust, in case* respecting, § 3422. INJURY, contract for exemption from, § 1668. Obligation to abstain from, § 1708. Right of protection from, § 43. Right to defend from, § 50. Threat renders contract voidable, §§ 1569, 1570. See Damages. INNKEEPER, liability of, § 1859. Liability of, how exempted from, § 1860. Lien of, § 1861. Posting statement of charges, etc., § 1863. Sale of unclaimed baggage for storage, etc., § 1862. INNS. All citizens to have equal rights, § 51. Denial of equal rights, punishment, § 52. INSANE PERSONS, agency terminated by incapacity of parties, §§ 2355, 2356. Asylum, proceedings when placed in by superior court, § 258. Asylum, right of investigation before jury when placed in, § 258. Asylum, superior court power to place in, § 258. Contract, competency to, §§ 38, 39, 1556, 1557. Contracts of, rescission of, § 39. Custody of, code provisions regulating, § 32. Employment terminated by incapacity of parties, §§ 1996, 1997. Exemplary damages against insane person, § 41. Homestead, alienation, or mortgage of where spouse becomes insane, p. 718^ Stats. Homesteads, act authorizing alienation or incumber- ing, § 1269a. Homestead of, application for order to sell or mort- gage, service and publication of, § 1269b. Homestead of, may be sold or mortgaged for what purposes, § 1269a. Homestead of, petition to sell or mortgage, subscrip- tion and verification of, § 1269a. Homestead of, petition to sell oi mortgage, what to state, § 1269a. INSANE PERSONS— INSTRUMENTS. 805 Homestead of, public administrator when to represent on petition to sell or mortgage, § 1269'b. Homestead of, public administrator representing on pe- tition to sell or mortgage, fee of, § 1269b. Homestead of, sale or mortgage of, bond on, § 1269c. Homestead of, sale or mortgage, effect of, § 1269c. Homestead of, sale or mortgage, when ordered, § 1269c. Homestead of, sale or mortgage of, report and con- firmation, § 1269c. Homestead of, same spouse may petition to sell or mortgage, § 1269a. Insanity revokes proposal to contract, § 1587. Lease of estate of, limit of term of, § 718. Marriage of, annulment of, § 82. Necessaries, liability for, § 38. Nonresident, guardian of property may be appointed, § 244. Powers of, after incapacity adjudged, § 40. Rescission of contracts of, § 39. Restoration, certificate of, evidence of legal capacity, § 40. Stock of, how represented at corporate election, § 313. Superior court may appoint guardian of, in what cases, § 243. Torts of, liability, § 41. Trustee discharged by insanity, § 2282. INSOLVENCY, consignor may stop goods in transit on, of consignee, §§ 30, 76. Defined, §§ 3077, 3450. Of consignee, § 3077. Of principal in guaranty, § 2802. Otf special partnership, § 2491. Of special partnership, preferential assignments for- bidden, § 2496. See Assignment for Creditors; Fraudulent Convey- ance; Stoppage in Transit. INSPECTION of things sold with warranty, § 1785. Books of mining corporation, open to, p. 749, Stats. INSTRUMENTS, acts curing defects in, § 1207. Action to obtain judgment proving instrument, § 1203. Affecting title to real property, ownership of, § 994. Burden of proof, showing want of consideration, § 1615. By attorney in fact, executed, how, § 1094. By married women, acknowledged, how, § 1093. Cancellation of, in general, §§ 3412-3414, 0O6 INSTKUMIENTS— tNSURANCTE. Certain non-negotiable written, transferable, § 1459. Containing condition wrong per se, void, § 709. Distinction between sealed and unsealed abolished, § 1629. Evidencing title declared by judgment, how proved by- record, § 1159. Handwriting may be proved, when, § 1198. In writing prima facie import consideration, § 1614. Judgment proving, § 1203. Officers authorized to take proof of powers of, § 1201. Proof of, action for, and effect of the judgment, §§ 1203, 1204. Proof of, execution of, how made, §§ 1185, 1198. Proof of, execution of, when not acknowledged, § 1195 Proof of, witness to prove what, § 1197. Witness proving to be personally known to officer tak- ing proof, § 1196. Proved by other than subscribing witness, how record- ed,' 8 1162. Unrecorded, valid as between parties with notice, § 1217. INSULT, right of protection from, § 43. INSURANCE. I. Object, definition and kinds of; code provisions governing. II. Parties to; wlio may insure or be insured. III. Insurance by agent, factor, mortgagor, part owner, partner or trustee. IV. Validity and rescission of. V. Insurable interest; what may be insured against. VI. Concealments and representations. VII. Warranties. VIM. Policy. IX. Premium. X. Change or transfer of Interest. XI. Over-insurance; double Insurance; reinsurance. XII. Loss. XIII. Questions relating particularly to fire insurance. XIV. Questions relating particularly to life insurance. XV. Questions relating particularly to marine Insur- ance. Commissioner: See Insurance Oommissioner, INSURANCE, I-V. »I Companies: See Insurance Corporation. Fraternal societies exempt from insurance laws, § 451. Object, definition and kinds of; code provisions governing. Code provisions govern all kinds of insurance, § 2534. Defined, § 2527. Indemnity, §§ 2772-2777. Kinds of, § 2533. Sole object of is indemnity of insured, § 2551. Accident companies: See Insurance Corporation. Mutual companies: See Insurance Corporation. Title insurance companies: See Insurance Corporation. II. Parties to; who may Insure or be Insured. Any one except public enemy may be insured, § 21540. Insured, who is, § 2538. Insured, who may be, § 2540. Parties are insured and insurer, § 2538. Who may insure, § 2539. III. Insurance by agent, factor, mortgagor, part owner, partner or trustee. Agent, by, form of policy, § 2588. Factor may insure, § 2368. Mortgaged^ property, insurance on, § 2541. By mortga'gor, § 2542. Partner, by, rights of copartner, form of policy, § 2590. Part owner, by, rights of co-owner, form of policy, § 2590. Trustee, by, form of policy, § 2589, IV. Validity and rescission of. • Gaming policy, void, § 2558. Rescind, time for exercising right to, § 2583. Stipulation for payment irrespective of interest void, § 2558. Void, if without insurable interest, § 2551. Void, when, § 2558. V. insurable Interest; what may be insured against. Contingent or expectant interest not insurable, § 2549. Insurable interest defined, § 2546. Insurable interest in expectancy, §§ 2547, 2549. Insurable interest in life, § 2763. Insurable interest in life, assignment to one without, § 2764. 908 INSURANCE, YI. InsTirable interest, insurance without, void, § 2551. Insurable interest may consist in what, § 2547. Insurable interest, measure of, § 2550. Insurable interest of carrier or depositary, § 2548. Insurable interest in property, what constitutes, §§ 2546, 2547. Insurable interest, time when must exist, § 2552. Lottery not insurable, § 2532. Mortgaged property, on, § 2541. What events may be insured against, § 2531. VI. Concealments and Representations. Conce^ilment defined, § 2561. Concealment, effect of, § 2562. Concealment, facts which need not be disclosed, § 2564. Concealment, information of one's own judgment need not be communicated, § 2570. Concealment, matters of opinion need not be commu- nicated, § 2570. Concealment, mcdification of contract and representa- tions in case of, § 2582. Concealment, provisions as to apply to modification of contract, § 2582. Concealment, what facts to be disclosed, § 2563. Disclosed, facts that must be, § 2563. Disclosed, facts that need not be without injury, § 2564. Fraudulent omission to communicate facts, § 2569. Interest of insured, necessity of communicating, § 2568. Materiality of facts, test of, § 2565. Matters each party bound to know, § 2560. Matters that must be disclosed, § 2563. Matters that need not be communicated without in- quiry, § 2564. Omission to communicate facts, intentional or fraudu- lent, § 2569. Representation as to future, effect of, § 2574. Representation, effect of falsity, § 2580. Representation false, when deemed to be, § 2579. Representation interpreted, how, § 2573. Representation, materiality of, how determined, § 2581. Representation may be made, when, § 2572. Representation may be oral or written, § 2571. INSURANCE, VII, VHI. V» Representation may be altered or withdrawn, when, § 2576. * Representation may not qualify policy, § 2575. Representation may qualify warranty, § 2575. Representations, provisions as to apply to modifica- tion, § 2582. Representation refers to what time, § 2577. Representing information, § 2578. Waiver of communication of facts, § 2567. VII. Warranties. As to future, § 2608. As to past or present, § 2607. Breach without fraud, § 2612. Form of, § 2604. Fraudulent, § 2569. Is express or implied, § 2603. Must be in policy, § 2605. Performance of, relating to future, excused, when, § 2609. Past, present or future, § 2606. Violation of, policy may provide for avoidance, § 2611. Violation of, avoids policy, § 2610. VIII. Policy. Defined, § 2586. Description of insured in general terms, who can claim benefit, § 2591. Form of, on insurance by agent, § 2588. Form of, on insurance by part owner or copartner, § 2590. Form of, on insurance by trustee, § 2589. How issued and signed, § 416. In general terms, § 2591. In open or valued, § 2594. Material violation avoids, § 2610. May provide for avoidance, § 2611. Not transferred by transfer of thing insured, § 2593. Open, defined, § 2595. Open policy, marine, estimating loss under, § 2741. Running, defined, § 2597. Valued policy, § 2757. Valued policy defined, § 2596. What must be stated in, § 2587. Whose interest covered by, § 2588. 910 INSURANCE, IX-Xn. IX. Premium. Contribution in case of over-insurance, §§ 2621, 2622. Earned, when, § 2616. Effect of acknowledging receipt of, in policy, § 2598. How payable to mutual life, etc., company, § 446. Receipt of premium, effect of acknowledging in policy, § 2598. Return of, for fraud, § 2619. Return of when allowed, § 2617. Return of, when not allowed, § 2618. Return of, when over-insurance by several, § 2620. X. Change or transfer of interest. Alienation, joint owners or partners, transfer between does not avoid, § 2557. Change of interest after loss, § 2554. Change of interest between partners, joint owners, etc., effect of, § 2557. Change of interest by death of insured, § 2556. Change of interest in one of several things, § 2555. Change of interest in thing insured, effect of, §§ 2553- 2557. Mortagee, assignment to of insured thing, § 2541. Partners, transfer between does not avoid, § 2557. Policy, transfer of thing insured, effect of, § 2593. Successive owners, policy may be drawn to inure to, § 2592. Transfer of claim for, contract not to, is void, § 2599. Transfer of insured thing not transfer policy, § 2593. Transfer of interest in part of thing insured, effect of, § 2553. Transfer of thing insured, effect of, §§ 2553-2557. XI. Over-insurance; double insurance; reinsurance. Over-insurance, contribution to premium, §§ 2621, 2622. Over-insurance, return of premium, § 2620. Double, contribution, § 2642. Double, defined, § 2641. Reinsurance, §§ 426, 428. Reinsurance defined, § 2646. Reinsurance, disclosures required, § 2647. Reinsurance, original insured no interest' in, § 2649. Reinsurance presumed to be against liability, § 2648. XII. Loss. Exoneration of insurer, what amounts to, § 2629. INSURA^CiS, XIII-XTV. 5^n Interest covered by policy, § 2588. Loss, certificate of, when dispensed with, § 2637. Loss, excepted perils, § 2628. Loss incurred in rescue from peril, § 2627. Loss, notice of, §§ 2633-2637. Loss, partial, § 2757. Loss, partial, under valued policy, § 2757. Loss, preliminary proofs, §§ 2634-2636. Loss, proof of, sufficiency of preliminary proofs, § 2634. Loss, remote and proximate cause, § 2626. Negligence does not exonerate insurer, § 2629. Notice of loss, effect of delay to give, § 2633. Notice of loss, waiving defects in, § 2635. Notice of loss, waiving delay in, § 2636. Perils, excepted, cover what losses, § 2628. Perils, loss in rescuing from, § 2627. Perils, remote and proximate, § 2626. Willful act of insured exonerates insurer, § 2629. Xill. Questions relating particularly to fire insurance. Fire, companies: See Insurance Corporation. Contribution in case of domestic insurance, effect of in- solvency, § 2642. Double insurance, contribution, § 2642. Effect of valuation in policy, § 2756. Examination of premises by insured, and value fixed, § 2757. Increase of risk, §§ 2753-2755. Increase of risk, acts affecting an, but not violating the policy, § 2755. Increase of risk, alterations that affect an, § 2753. Increase of risk, alterations that do not affect an, § 2754. Measure of indemnity, § 2756. Partial loss, § 2757. Property which may be insured, § 426. Reinsurance, §§ 426, 428. Valued policy, § 2757. XIV. Questions relating particularly to life insurance. Life: See Insurance Corporation. Assignment of policy, §§ 2764, 2765. Assignment for creditors, insurance upon life does not pass, § 3470. Assignment, necessity of, notice of, § 2765. 2 INSURANCE, XV. Does not pass on assignment for creditors, § 3470. Insurable interest, § 2763. Measure of indemnity, § 2766. Nonforfeiture clause, § 450. Right to paid-up policy, § 450. When payable, § 2762. XV. Questions relating particularly to marine Insur- ance. Marine: See Insurance Corporation. Abandonment, acceptance of conclusive, § 2728. Abandonment, acceptance of not necessary, § 2727. Abandonment, accepted is irrevocable, § 2729. Abandonment, agent's acts after, effect of, § 2726. Abandonment defined, § 2716. Abandonment, effect of, § 2724. Abandonment ineffectual, when, § 2720. Abandonment made, how, § 2721. Abandonment must be absolute, § 2718. Abandonment must not be partial or conditional, § 2718. Abandonment, no other cause than specified can be re- lied on, § 2723. Abandonment, notice must specify all causes of, § 2723. Abandonment, notice of, not necessary on total loss, § 2709. Abandonment not presumed from mere silence, § 2727, Abandonment of freightage, § 2717. Abandonment of ship, effect on freightage, § 2730. Abandonment, omission to make, right of recovery, § 2732. Abandonment, refusal to accept, liability on, § 2731. Abandonment requisites of notice of, §§ 2722, 2723. • Abandonment, time within which may be made, § 2719. Abandonment, waiver of formal, § 2725. Abandonment, when proper, § 2717. Against actual total loss covers what, § 2712. Average, general, §§ 2148-2155. See General Average. Average loss, § 2711. Average, particular, liability, § 2711. Charterer has insurable interest, § 2665. Charter-party, insurable interest exists under, § 2663. Concealment, effect of, § 2672. INSURANCE, XV. »13 Concealments not vitiating policy, § 2672. Contribution in case of double insurance, effect of insolvency, § 2642. Contribution, subrogation of insurer, § 2745. Course of sailing determined, how, § 2693. Defined, § 2655. Deviation defined, § 2694. Deviation exonerates insurer, § 2697. Deviation improper, when, § 2696. Deviation proper, when, § 2695. Double, §§ 2641, 2642. Double insurance, contribution, § 2642. EJxpense and labor, liability of insurer for, § 2743. Freightage signifies what, § 2661. General average loss, §§ 2711, 2744. Information must be comm^unicated, § 2669. Insurable interest in expected freightage, § 2662. Insurable interest in profits, § 2664. Insurable interest in ship, § 2659. Insurable interest of charterer, § 2665. Insurable interest reduced by bottomry, § 2660. Labor and expenses, liability of insurer for, § 2743, Liability where cargo reshipped, § 2707. Loss, average, § 2711. Loss, constructive total, § 2705. Loss, estimating under open policy, § 2741. Loss is total or partial, § 2701. Loss, partial, § 2702. Loss, partial, anchors, cannon and sheathing metal, how estimated, § 2746. Loss, presumed from continued absence, § 2706. Loss, total, is actual or constructive, § 2703. Loss, what amounts to actual total, § 2704. Material information, § 2670. Measure of indemnity in general, §§ 2736-2746. Neutral papers, § 2688. On cargo when voyage broken up, § 2707 One-third new for old, exceptions to, § 2746. Open policy, estimating loss under, § 2741. Partial loss, liability on, §§ 2737, ::742. Partial loss, measure of indemnity, §§ 2737, 2742. Partial loss, one-third new for old, § 2746. Prior loss, knowledge of, presumption of, § 2671. Profits, measure of recovery for, § 2738. CivU Cod6-68 M4 Insurance— INSURANCE corporation. Profits, valuation in policy applied to, § 2740. Property which may be insured, § 426. Reinsurance, §§ 426, 428. Representation, effect of false, § 2676. Representation eventually false, § 2677. Representation of expectation, § 2677. Reshipment when voyage 'broken up, liability, §§ 2707, 2708. Seaworthiness as to cargo, § 2687. Seaworthiness, at what time must exist, § 2683. Seaworthiness, degrees of at different stages of voy- age, § 2685. Seaworthiness, what constitutes, § 2684. Ship's manager may not insure, when, § 2389. Subrogation of marine insurer, § 2745. Unseaworthiness occurring in voyage, delay in repair- ing, « 2686. Valuation applied to profits, § 2740. Valuation in policy, apportioned when part only ex- posed, § 2739. Valuation in policy, conclusiveness of, § 2736. Voyage insured is what, § 2692. Warranty of neutrality, § 2688. Warranty of seaworthiness, § 2681. When insured entitled to payment, § 2709. INSURANCE COMMISSIONER, § 447. Duty regarding corporations to give bonds, p. 681, § 3, Stats. Insurance company to report investments to, § 427. Power of, over investments by insurance corporations, § 427. INSURANCE CORPORATION: See Insurance. Accident insurance on assessment plan, act relating to, p. 724. Accident, act for incorporation of mutual insurance companies for insurance against, p. 731. Accident insurance: See post, this title. Annuity insurance on assessment plan, p. 724, Stats. • Assessment plan, health, life, accident, annuity, and endowment insurance on, p. 724, Stats. Assessments on stock, limitation of, § 332. Benevolent societies exempt from insurance laws, § 451. Benevolent societies not insurance corporations, § 451, INSURANCE CORPORATION. S15 Capital, cash assets of one hundred thousand, must have, when, § 420. Capital, cash assets of two hundred thousand dollars, must have, when, § 419. Capital, foreign mutual corporation must have two hundred thousand dollars cash assets, § 419. Capital and accumulations, how invested, § 421. Capital stock must be one hundred thousand, when, § 420. Capital stock must be at least two hundred thousand, when, § 419. Directors, alteration in number of, § 443. Directors liable for loss on insurance, when, § 418. Directors liable on what policies, § 418 Directors, not to be less than five, § 443. Dividends, amounts to be reserved before making. § 429. ' . ^' Dividends, of what and when declared, § 417. • Dividends, of what not to be declared, § 417. Dividends when only to be declared, § 452. Endowment insurance on assessment plan, p. 724, Stats. Fire, county fire insurance companies, organization and management of, p. 732, Stats. Fire and marine, capital to be paid in cash in twelve months, § 424. Fire and marine, certificate of capital stock to be filed, and when, § 425. Fire and marine, dividends, amounts to be reserved before making, §§ 429, 430. Fire and marine, extent of power of assessment, § 332. Fire and marine, how may invest funds, § 427. Fire and marine, limitation on risks, § 428. Fire and marine, payment of subscriptions, § 424. Fire and marine, rate of risk, § 428. Fire and marine, reservations by companies with less than two hundred thousand, § 430. Fire and marine, risk, limitation on, § 428. Fire and marine, twenty-five per cent of capital to be paid up before policies issued, § 424. Fire and marine insurance corporations, limit on one risk, § 428. Fire and marine insurance corporations, limit on one risk, § 428. 916 INSURANCE CORPORATION. Fire insurance, fire patrol, rights and powers as to: See Fire Patrol. Fire, life, health, accident and marine insurance com- panies, approval of Investment by two-thirds of directors, § 421, sub. 6. Fire, life, health, accident and marine insurance com- panies, limit on investments, § 421, sub. 6. Fire, life, health, accident and marine insurance com- panies, report of investments, § 421, sub. 6. Fire, life, health, accident and marine insurance cor- porations, accumulations, how invested, § 421, sub. 5. Foreign, capital stock must be one hundred thousand, when, § 420. Foreign, cash assets of one hundred thousand dollars, must have, when, § 420. Foreign, cash assets of two hundred thousand dollars, must have, when, § 419. Foreign, must have capital stock of two hundred thou- sand, when, § 419. Foreign, retaliatory provisions, §§ 447, 449. Fraternal societies exempt from insurance laws, § 451. Funds, how may be invested, § 427. Health, act for incorporation of mutual insurance companies for insurance against, p. 731. Health, act for incorporation of mutual insurance companies for insurance of, p. 731. Health insurance on assessment plan, act relating to, p. 724. Health insurance: See post, this title. Insurance, law of, in general: See Insurance. Investment must not exceed market value of securities, § 427. Investments, funds, how may be invested, § 427. Investments, power of insurance commissioner over, § 427. Investments to be reported to insurance commissioner, § 427. Life, amounts to be reserved before declaring divi- dends, § 431. Life, nonforfeiture clause, § 450. Life, right to paid-up policy, § 450. Life insurance companies, policy loans, provisions con- cerning, § 421, sub. 7. Life insurance companies, power to loan on policies, § 421, sub. 7. INSURANCE CORPORATION. 917 Life insurance on assessment plan, act relating to, p. 724. Limit on risks of fire and marine insurance corpora- tions, § 428. Mutual insurance companies for insurance of life and health anti against accident, p. 731, Stats. Mutual insurance corporation, foreign, must have two hundred thousand dollars cash assets, § 419. Mutual life, health, and accident, in general, §§ 437-451. Mutual life, etc., by-laws may limit number shares one may hold, § 445. Mutual life, etc., by-laws may provide for protection of stockholders, § 445. Mutual life, etc., capital stock, amount of, § 437. Mutual life, etc., declaration of fixed capital, § 440. Mutual life, etc., fixed capital, of what consists and •deficiency therein, § 439. Mutual life, etc., guaranty fund, § 487. Mutual benefit and life associations: See Mutual Bene- fit an-d Life Associations. Mutual insurance on assessment plan: See Mutual In- surance on Assessment Plan. Mutual life, health and accident companies, distribution of stock, where oversubscribed, § 437. Mutual life, health and accident companies, guarantee fund, § 437. Mutual life, health and accident company, rejection of subscription, § 437. Mutual life, etc., guaranty fund to consist of what, § 488. Mutual life, etc., guaranty notes and interest, how disposed of, § 441. Mutual life, etc., insurance commissioner, furnishing •data to and duties of, § 447. Mutual life, etc., insured entitled to vote, when, § 442. Mutual life, etc., loan not to exceed sixty per cent of market value, § 444. Mutual life, etc., may invest in what securities, § 444. Mutual life, etc., no stamp required on accident in- surance contract, § 448. Mutual life, etc., policies not to be issued until what time, § 437. Mutual life, etc., policies, participation in profits, § 446. Mutual life, etc., premiums payable, how, § 446. Mutual life, etc., subscription, § 437. Mutual life, etc., surplus, § 437. »18 INSURANCE CORPORATION— INTENTION. Mutual life, etc., valuation of policies not accepted in other states, retaliatory provisions, § 449. Mutual life, etc., valuation of policies outstanding, when and how estimated, § 447. Policies, by what officers to be signed, § 416. Policies, how issued, § 416. Real property, restrictions on purchasing, holding and conveying, § 415. Seal policies without, § 416. Subscription to capital stock, opening books of, § 414. Subscriptions to capital stock, securing, § 414. Title insurance company may invest funds in plant, § 421, sub. 5. Title, -dividends, amounts to be reserved before making, § 432. Title, dividends declared of what, § 482. Title, plant to asset, § 421, sub. 5. Title, surplus fund and impairment and restoration, § 432. See Insurance. INTEMPERANCE, divorce for, §§ 92, 107. INTENTION, fraudulent, question of fact, § 3442. General terms restricted by main, § 1648. How ascertained, § 1637. How ascertained in revision, § 3401. Of grantor in ambiguous grant, § 1068. Of testator, §§ 1817, 1870. Of testator, how ascertained, § 1318. Of trustor, necessary to creation of trust, § 2221. Overrules grammatical construction, § 1824. Overrules technical meaning, § 1327. Particular clauses subordinate to general, § 1650. Presumption of, to destroy or cancel contract, § 1699. Revision of contract so as to conform to, § 3399. Substantial compliance with, sufficient, § 1348. Superior to terms of written contract, when, § 1640. To deceive, an essential element of fraud, § 1572. To desert, not always coexistent with separation, § 100. To extinguish old obligation, necessary in novation, § 1531. To govern interpretation of contract, § 1636. To make ademption, must be in writing, § 1351. When ascertained by the language, § 1638. When ascertained by the writing alone, § 1639. Words inconsistent with, rejected, S 1668. INTEREST— INTERESTS IN PROPERTY. HI INTEREST, annual rate where no time fixed, § 1916. Any rate agreed on allowed until entry of judgment, § 1918. Any rate may be agreed on, § 1918. Application of, § 1479. Bequest of, income when accrues, § 1866. Bottomry contract, rate, § 3022. Building and loan corporation, rate of, § 634. Cemetery bonds, rate on, § 611. Compounding, § 1919. Compound, trustee's liability for, § 2262. Computation of, § 1917. Damages, as, § 3288. Damages, interest on, 3287. Damages prescribed in code are exclusive of, § 3357. Defined, § 1915. Guaranty notes of mutual life insurance companies, on, § 441. In action ex delicto, § 3288. Judgment, on, §§ 1917, 1920. Land and building corporation, 5 634. Legacies, on, § 1369. Legal rate, §5 1917, 1918. Offer of performance stops, § 1504. Pfotested bill, on, § 3236. Presumed on loan, § 1914. Principal, agreement that Interest shall become part of, § 1919. Railroad bonds, on, § 456. Rate after breach of contract, § 3289. Rate after verdict, § 3289. Rate in absence of contract, § 1917. Rate, limit of by contract, § 3289. Rate, on money borrowed by homestead corporation, 8 560. Rate, parties may agree for any, § 1918. Respondentia, rate, § 3039. Special partner entitled to, § 2494. Trustee liable for, if omits to Invest trust funds, § 2262. Trustee's liability for, to beneficiary, § 2237. Waiver of, by accepting principal, § 3290. Year, what deemed to be in computation of, § 1917. INTERESTS IN PROPERTY absolute, § 679. Chattel, § 765. Classification, § 702. Denominated estates, § 701. 9» INTERESTS IN PROPERTY— iNV KM TORT. Future, § 690. Future contingent, § 695. Future contingent, may be alternative, § 696. Future contingent, not void because improbable, § 697. Future, bow defeated, §§ 739, 740. Future, none unless specified, § 703. Future, pass by transfer, § 699. Future, right of posthumous children, § 69S. Future vested, § 694. Future, when not defeated, §§ 741, 742, In common, § 685. In existing trust, how transferred, § 1135. In ship, how transferred, § 1135. Joint, § 683. Limited, § 692. Mere possibility of, not transferable, § 70a. Merger of, destroys servitude, § 811. Partnership, § 684. Perpetual, § 691. Present, § 689. Qualified, § 680. Time of creation of, § 749. Transfer of, when mortgage, § 2921. Trustee must give beneficiary notice of acquisition of, § 2233. What affected by transfer, § 1083. When void for suspending alienation, § 716. INTERLOCUTORY DECREE in divorce proceedings, §§ 61, 131, 132. INTERPRETATION: See Construction. INTERPRETER, acknowledgments, officer taking may employ, § 1201. INTESTACY, disposition of property in case of, § 1384. Rules of descent of property in case of, § 1386. Succession in case of, §§ 1383-1409. See Succession. Will interpreted to avoid, if possible, § 1326. INTESTATE, estate of chargeable with debts, § 1358. See Succession. INUNDATION, d^wsit in case of, §§ 1815, 1816. INVENTIONS, author of, has exclusive ownership, § 980. Property in, §§ 980-985. Subsequent inventor of same thing, rights of, § 984. INVENTORY, assignor for creditors must make, §§ 3461, 3462, INVENTORY— JOINT. Kl Legatee for life, inventory by, and what to contain, § 1365. Of separate property of wife, §§ 165, 166. Specific legatee must take and deliver, § 1365. INVESTMENT. Insurance companies, how may invest funds, § 427. Trustee, by, §§ 2261, 2262. IRRIGATION: See Water and Canal Corporation. Rates of water for, supervisors may fix, p. 786, Stats. IRRIGATION CORPORATION, § 552. Transfer of stock, § 324. ISLAND, belongs to whom, §§ 1016-1018. ISSUE, interpretation of, § 1071. JACKS. Lien of owner of jack used for propogation, §§ 3062, 3063; p. 738, Stats. JAPANESE. Marriage between whites and mongolians forbidden, § 60. JETTISON, §§ 2148-2155. By whom may be made, § 2150. Defined, § 2148. In general, § 2155. Loss by, how borne, § 2151. Order of, § 2149. Rules governing apply to what sacrifices anj expenses, § 2155. Things stored on deck, § 2154. When justifiable, § 2148. JOINT and several, contract when presumed to be, §§ 1659, 1660. And several obligation, § 1430. Authority, how construed, § 12. Authorship, § 981. Contribution of parties, § 1429. Contribution between joint or joint and several obli- gors, § 1432. Creditor, directions by one, § 1476. Creditor, performance to one, § 1475. Debtor, performance by, § 1474. Debtors, release of, § 1543. Delivery by depositary of thing owned jointly, § 1827,, Drawees, presentment to, § 3187. Drawees, presentment to one, and refusal, § 3187, EJmployees, duty of survivor, § 1991, 923 JOINT— KINDRED. Guardian, death of, § 252. Interest, change in, does not affect insurance, § 2557. Interest defined, § 683. Obligations, §§ 1430-1432. Obligation presumed joint when, § 1431. Obligor, performance by, § 1474. Ownership defined, § 683. Owners, delivery of deposit to, how made, § 1827. Promise presumed joint and several, §§ 1659, 1660. Service after death of joint employee, § 1991. Trustee, liability of, § 2239. Trustees, all must act, § 2268. Trustees, survivorship between, § 2288. JOINT STOCK COMPANY. Contract to relieve director from liability void, §§ 325, 327. \IUDGE. Acknowledgment, what judges may take, § 1180. Police judge may solemnize marriage, § 70. Superior, may consent to apprenticeship when, § 265. JUDGMENTS. Action lies to obtain judgment proving in- strument, § 1203. Affecting title may be recorded without acknowledg- ment, § 1159. Confession of, by special partner, void, § 2496. Confess, partner may not, § 2430. Effect of, in action to prove instrument, § 1204. Interest on, §§ 1917, 1920. Lien governed by Code of Civil Procedure, § 3058. Marriage, annulling, conclusiveness of, § 86. Partner may not confess, § 2430. Providing instrument, § 1204. Recording: See Recording. Title, for possession or, § 3375. . Unrecorded instrument, void as against, § 1214, JUDICIAL SALE, foreclosure of right to redeem pledge, § 3011. Warranty on, § 1777. JUSTICE OF PEACE, acknowledgment, certificate of, au- thority to take, § 1194. Acknowledgment, may take, § 1181. Apprenticeship, consenting to, § 265. Marriage ceremony, may solemnize, § 70. May direct calling meeting of corporation, when, § 311. KILLING SHEEP by dogs, § 3341. KINDRED, collateral line, § 1393. KINDRED— LANDLORD AND TENANT. K» Degree of, how established, § 1389. Direct line, § 1392. Half blood inherit equally, § 1394. Series of degrees of, § 1391. KLAMATH COUNTY, tolls in, § 514. KNOWLEDGE: See Notice. Necessary to ratification, § 2314. Of principal not necessary to create guaranty, § 2788. LABOR. Hours of labor of minor, acts regulating, pp. 721. 722. LABORER, lien of, § 3052. LAKE, boundary, lake as, rights of owners, § 830. State owns land below water of, § 670. LAND defined, § 659. LAND AND BUILDING CORPORATION: See Building and Loan Corporation. LAND AND WATER CORPORATIONS dividing land, wa- ter and water rights among stockholders, § 309. See Water and Canal Corporations. LANDLORD AND TENANT: See Lease; Rents. Action for possession without notice, where right of re-entry, § 793. Adverse proceeding, tenant to give notice of, § 1949. Assignee of lessee, liability of, § 822. As-signee of lessee, rights of lessor against, § 822. Assignee of lessor, rights of lessee and 'assignee against, § 823. Attornment by tenant not required, when, § 1111. Attornment of tenant to stranger, § 1948. Change in terms of lease, § 827. Dwelling-house, lessor to put in fit condition, § 1941. Ejectment, tenant to give notice of, § 1949. Ejectment without notice, § 793. Fixtures: See Fixtures. Grant by landlord, right of tenant paying rent before notice, § 1111. Holding over willfully, treble rent, § 3345. Lease for life, rent recoverable after death, § 825. Lease, statute of frauds, § 1624. Lease, terms of, may be changed by notice, § 827. Lessees and their assignees, rights of, § 823. Lessee's assignee, liability of, § 822. Letting parts of rooms forbidden, § 1950. 924 LANDLORAD AN DTENANT— LAPSE OF TIME. Lod^ngs, liiring for indefinite term, presumption as to, § 1944. Notice of change in terms of lease, § 827. Notice, re-entry on termination of, § 790. Notice, rights on termination of, § 790. Notice to quit, length of, §§ 789, 1946. Possession, action lies for without notice, when, § 793. Quit, failure to after notice, treble rent, § 3344. Re-entry after termination of notice, § 790. Re-entry, right of can be transferred, § 1046. Re-entry, when and how to be made, §§ 791, 793. Renewal of lease by acceptance of rent, § 1945. Renewal of lease by continued possession, § 1945. Renewal presumed in absence of notice of termina- tion, § 1946. Renewed, tenancy deemed unless notice to quit given, § 1946. Rent dependent on life recoverable after death, § 825. Rent, effect on of lessor's failure to repair, § 1942. Rent on life lease, recovery of, § 824. Rent payable when, § 1947. Rent, tenant released from by letting room in parts, § 1950. Repairs, duty of lessor to make, § 1941. Repairs, effect of lessor not making, § 1942. Repairs, failure to make, vacation of premises, § 1942. Repairs, when lessee may make, § 1942. Repairs, when lessor to make, § 1941. Rooms, letting in part forbidden, § 1950. Summary proceedings to obtain possession, § 792. Tenant at will, rights of, §§ 819, 820. Tenant entitled to whole room, § 1950. Tenant for years, rights of, §§ 819, 820. Tenant must deliver notice served on him, § 1949. Term, hiring lodgings or house for indefinite, § 1944 Term of hiring when no limit fixed, § 1943. Termination of tenancy, at will, notice, §§ 789, 790. Treble rent for failure to quit after notice, § 3344. Treble rent for holding over, § 3345. Vacation by tenant for want of repairs, § 1942. See Lease; Rents. LAPSED devise, § 1343. Legacy, § 1343. LAPSE OF TIME, bottomry lien, extinguishes, § 3027. Defined, § 125. Divorce denied on, S 111. LAPeS OF TIMR— LBGirtMACY. 126 Lien, extinguishes, § 2911. Nuisance, does not legalize, § 3490. PEirtnership dissolved by, § 2450. Presumptions arising from, rebutting, § 126. Proposal to contract revoked by, § 1587. See Limitation of Actions. LATERAL SUPPORT, easement of, § 801. Excavations, § 832. Right of, § 832. LAUNDRY, lien on, § 3051. LAW, fraud a question of fact and not of, § 3442. Obligations imposed by, §§ 1708-1717. LEASE: See Hiring; Landlord and Tenant. Agricultural lunds, of, not over ten years, § 717. Building and loan association may make, § 640. Change in terms of, § 827. City lots, of, not over fifty years, § 718. Lessees and their assignees, rights of, § 823. Les-sees, asignees, liability of, § 822. Incompetent, limit of term of lease of, § 718. Infant, limit of term of lease of, § 718. Letting part of rooms forbidden, § 1950. Life, rent, how recoverable, § 824. Limit of term of lease of city lot, § 718. Limit of term of lease of minor or incompetent person, § 718. Limit of term of lease of property of municipality, § 718. Recording, want of rights of bona fide purchaser, § 1214. Renewal by continued possession, § 1945. Rents: See Rents. Statute of frauds, § 1624. Telegraph or telephone, property of, lease of, § 540. Trust, express, to lease realty, § 857. Terms of may be changed by notice, § 827. LEGACY, gift causa mortis treated as, § 1153. See Wills. LEGISLATURE, dissolution of corporation by, § 384. Exaination by, into affairs of corporation, § 383. Regulation of freights, § 465. LEGITIMACY. Adoption of illegitimate child, consent, § 224. Adultery of husband, effect on of children, divorce for, i 144. 9M LEGITIMACY— LETTERS. Adultery of wife, divorce for, legitimacy of children. § 145. Children legitimate where marriage annulled or di- vorce granted, § 1387. Mother may appoint guardian of illegitimate child, § 241. Mother alone can bind illegitimate child as apprentice, § 265. Mother marrying, right to bind child as apprentice, § 265. Nullity of marriage does not affect legitimacy of chil- dren, § 84. Of children born after dissolution of marriage, § 194. Of children born in wedlock, § 193. Of children not affected by annulment of marriage, § 84. • Of children, who may dispute, § 195. Presumption of, § 195. Succession to estate where child legitimated by mar- riage, § 1888. Succession to estate where child not legitimated, § 1888. See Bastards. LESSOR AND LESSEE: See liandlord and Tenant. LETTER OF ATTORNEY: See Power of Attorney. LETTER OF CREDIT, construction of, § 2866. Credit given must agree with terms of, § 2866. Defined, § 2858. General, authority to pay under, § 2862. General, defined, § 2861. General, extent of, § 2863. General, nature of, § 2862. General, rights of one paying under, § 2862. General, several persons may successively give credit, § 2863. How may be addressed, § 2859. Is general or special, § 2860. Liability of writer, § 2860. May be continuing guaranty, § 2864. Notice to writer, whether necessary, § 2865. Special, defined, § 2861. - . LETTERS containing valuables, carrier's liability, § 2177. Property in, § 985. Right to publish, § 985. When deemed to be continuing guaranty, § 2864. LETTERS PATENT— LIEN. - 927 LETTERS PATENT, acknowledgment of, not necessary to recording, § 1160. Lost, recording certified copy, § 1160. LEX DOMIC I LI governs personalty, § 946. LIBEL, defamation, § 44. Defined, § 45. Malice, when not inferred, § 48. Privileged communications, defined and classified, S 47. Right to protection from, § 43. LICENSE, marriage, §§ 69-79. Ships, of, § 966. Street railway's, § 508. To take tolls, § 528. LIEN, accessory to act secured, § 2909. Agistor's, § 3051. Apportionment of, § 2912. As security for performance of oblig'atlon not In ex- istence, § 2884. Attachment, lien of officer, § 3057. Banker's, § 3054. Boarding-house keepers, § 1861. Bottomry, priority, § 2897. Bottomry, generally, §§ 3017-3029. See Bottomry. Bulls used for propogation, liens in favor of owner, p. 738, Stats. Carrier's, § 2144. Carrier's, on baggage, § 2191. Carrier's, ship's manager may not give up, § 2889. Claim not due, no lien for, § 2882. Compensation, holder not entitled to for trouble or ex- pense, § 2892. Confined to original obligation, § 2891. Contract, may be created by, § 2884. Contract respecting, when void, § 2889. Contracts subject to, in general, § 2877. Conversion, damages of lienor, § 3838. Created by law or contract, § 2881. Defined, § 2872. Delivery, want of change of, efCect of, § 3440. Depositary has, § 1856. Execution, lien of oflScer, § 3057. Extent of, § 2891. Extinguished by limitation, § 2911. Extinguished by restoration of property, § 2918. 928 LIEN. Extinguished by sale or conversion, § 2910. Extinguished how. In general, § 2909. Extinguished, not by partial performance, § 2912. Factor's, § 3053. Forfeiture of property, contr'act for, void, § 2889. Fraudulent conveyance, delivery, § 3440. Future interest, lien on, when attaches, § 2888. Future interest, on, § 2883. Future obligation, as security for, § 2884. General or special, liens are, § 2873. General, defined, § 2874. Homestead, liability for, § 1241. Hotel-keeper's, § 1861. Incumbrance includes, § 1114. Innkeeper's, § 1861. Is general or special, § 2873. Jacks used for propagation, lien of owner, p. 788, Stats. Judgment, covered by Code of Civil Procedure, § 3058. Laborer's, § 3052. Laborers on threshing-machines, liens of, p. 743, Stats. Laundry, for, § 3051. Laundry, on, § 3051. Livery-stable keeper, of, § 8051. Livestock, for keeping, § 3051. Lodging-house keepers, § 1861. Loggers and laborers in logging camps, lien of upon logs, p. 740, Stats. Loggers, act giving lien to laborers In logging camp, § 3065, note. Loggers', action on, attachment of logs, § 8065. Loggers, action to be brought within what time, § 8065. Loggers, duration of, § 3065. Loggers have, § 3065. Loggers, priority of, §• 3065. Mechanic's, regulated by civil procedure, § 8059. Mortgage, subject to law of, § 2877. See Mortgage. Officer's, for levying writ, § 3057. Order of resort to difeerent funds, § 2899. Partner's, in mining partnership, § 2514. Partner's, on shares of copartner for payment of firm debts, § 2405. Part performance does not extinguish, § 2912. Pasturing stock, for, § 3051. Personal obligation not implied by, § 2890. Personalty, on, for repairs, etc., 5 305^^, Pledge, § 2877. Pledge, lienor may, § 2990. Pledge, subject to law of, § 2877. Possession, lien dependent on, § 3051. Prior, right of holder of special lien paying, § 2876. Priority, § 2897. Priority of bottomry, §§ 3028, 3029. Priority of liens against ship, § 3028. Priority of purchase money mortgage, § 2898. Propagation, lien of owner of animal used for, act re- lating to, § 3062, note. Propagation, lien by owner of animal used for, claim of, § 3063. •Propagation, lien by owner of animal used for, en- forcement of, § 3064. Propagation, owner of animal used for has lien, § 3062. Purchaser of interest in mining claim takes subject to, §§ 2517, 2518. Recording, § 1164. Redemption, contract in restraint of, void, § 2SS9. Redemption, how made, § 2905. Redemption, rights of inferior lienor as to, § 2904. Redemption, who entitled to, § 2903. Respondentia subject to law of, §§ 2877, 2897. See Respondentia. Repairs, for, § 3052. Restoration of property subject to, to owner, effect of, § 2913. Right of redemption of property snbject to, § 29X)3. Sale of personalty to enforce, § 3052. Salvage, lien for, § 2079. Seamen's, § 3056. Services, for, § 3051. Sheriff's, § 3057. Shipmaster's, § 3055. Ship's, debts when liens against, § 3060. Special, defined, § 2875. Special, mortgage is, unless, § 2923. Special partner, of, when void, § 2496. Special, right of holder who pays prior lien, § 2876. Stallions used for propagation, lien in favor of owner, p. 738, Stats. Stoppage in transit, §§ 3076-3080. Storage, for, § 1856. Subrogation of redemptioner, § 2904, avil Code— 59 d30 LIEN— LIMITATION OF ACTION. SuTDrogation of person redeeming property subject to, § 2903. Threshing-machines, act giving lien to laborers on, § 3061, note. Threshing-machine, laborer on has lien, § 3061. Threshing-machine, lien of labor on, duration of, § 3061. Threshing-m'achines, liens of laborers on, enforcement of, § 3061. Threshing-machines, proceedings where several labor- ers have liens, § 3061. Title not transferred by, § 2888. Transfers no title, § 2888. Vendee's, § 3050. Vendor of personalty, lien of, § 3049. Vendor's, §§ 3046-3049. Vendor's, valid against whom, § 3048. Vendor's, waiver of by transfer of contract, § 3047. LIFE INSURANCE: See Mutual Insurance on Assessment Plan. Mutual benefit and life associations: See Mutual Ben- efit and Life Associations. LIFE INSURANCE COMPANIES: See Insurance Corpora- tions. LIGHT, easement of, § 801. LIGHTING CORPORATIONS. Duty to furnish gas or electricity on application, §§ 629, 630. Refusal to furnish gas or electricity, punishment of, § 629. Refusal to supply gas or electricity, when justified, §§ 630, 630a. Right to enter buildings for inspection, § 631. Right to enter building, prevention of, punishment of, § 631. Right to enter building to shut off light, § 632. Shutting off of light when justified, § 632. LIMITATION OF ACTION. Action to show property was community, § 164. Apprentice, action by for breach of contract, § 273. Corporation to organize within one year, § 358. Director's personal liability, § 309. Divorce, .§§ 124-127. Divorce is defeated by, § 111. For annulment of marriage, § 83. Prescription, § 1007. L.IMITATION OF ACTION— LOAN. 931 Lien extinguished by what, § 2911. Nuisance, time does not legalize, § 3490. Nuncupative will, proof of, § 1290. Partner in liquidation cannot revive debt, § 2462. Recovery of stock sold for delinquent assessments, § 347. LIMITATIONS. Conveyance by heir valid unless will proved within four years, § 1364. Directors, action for creating excessive debt, § 309. Directors, action for reducing or withdrawing capital stock, § 309. LIMITED INTEREST defined, § 692. LINEAL WARRANTIES abolished, § 1115. Liability of heir or devisee under, § 1115. LIQUIDATED DAMAGES, §§ 1670, 1671. Not bar to specific performance, § 3389. LITERARY CORPORATIONS. Elections, no cumulative voting unless by-laws provide, § 307, LITERARY PROPERTY is assignable, § 982. Author has exclusive ownership, § 980. Joint production, how owned, § 981. Ownership of, how long continues, § 980. Publication of, effect of, § 983. Subsequent author of the same thing, rights of, § 984. There may be ownership in compositions, § 655. LIVERY-STABLE, lien on animals kept, § 3051. LIVESTOCK, lien for keeping, § 3051. Combinations to obstruct sale of, prevented, p. 665, Stats. LOAN: See Building and Loan Associations; Savings and Loan Associations; Deposit; Hiring. Animal, care required of borrower of, § 1887. Borrower not to part with thing to third person, § 1891. Building and loan associations, act creating board of commissioners, p. 681. Care required of borrower, §§ 1886, 1887, 1888. Defects, lender liable for, § 1893. Defined, § 1884. Demand, when thing returnable without, § 1895. Exchange, expenses of property, § 1904. Exchange, for, code sections applicable to, § 1906. Exchange, for, defined, §§ 1902, 1903. Exchange, for, lender cannot modify contract, § 1905. 932 LOAN— LOST PROPEIRTY. Exchange, for, title to property, § 1904. Exchange, increase of, to whom belongs, § 1904. Expenses, when borrower to bear, §§ 1892, 1904. Hiring, §§ 1925-1959. See Hiring. See Animals. Injuries, when borrower to repair, § 1889. Interest on, §§ 1914-1920. Money, of, defined, § 1912. Money, of, interest, §§ 1914-1920." Money, of, presumed to be on interest, § 1914. Money, of, to be repaid in current money, § 1913. Particular use, for, § 1930. Place of return, § 1896. Presumed to be on interest, § 1914. Reloaning forbidden, § 1891. Returnable without demand, when, § 1895. Return of thing, indemnity to borrower, § 1894. Return of thing, owner may require at any time, § 1894. Return, lender requiring, to indemnify borrower when, § 1894. Return, place of, § 1896. Shipmaster's authority to borrow money, § 2374. Ship's manager may not borrow money, § 2389. Skill required of borrower, § 1888. Title of property loaned, § 1885. Use of thing loaned, § 1890. Use, for mere, code sections governing, § 1912. LODGING-HOUSE KEEPER: See Innkeepers. Cubic air law, p. 743, Stats. Lien on baggage, § 1861. Posting statement of charges, § 1863, Rent payable when, § 1947. Sale of unclaimed baggage, § 1862. Term presumed hired for, § 1944. LOGGERS; See Liens. LOST INSTRUMENT. Certificate of stock, action for new certificate, § 328. Certificate of stock, judgment for new certificate, pro- tection of company, § 328. Payment of lost negotiable instrument, Indemnity, § 3137. Recording certified copies of lost letters patent, § 1160. LOST PROPERTY, appraisement of, § 1865. Finder, duty of where owner not known, § 1865. Finder of, title vests in after what time, § 1871. LOST PROPERTY— MARINE CARRIERS. 933 Finder not to charge compensation, § 1865. Finder, penalty for failure to comply with statute or to surrender property, § 1871. Finder, publication of list by, § 1871. Finder, title when vests in, § 1871. Finder to notify owner, § 1865. FMnder to restore property, § 1865. Lists of, preparation and filing of, 1865. See Finder. LOTTERY, insurance of, not authorized, § 2532. LUGGAGE: See Baggage. LUNATIC: See Insane Person. MAIL CARRIERS to ride free on street railways, p. 773. Stats. .MAINTENANCE, action for, by wife without divorce, § 137. See Divorce; Parent and Child. MAJORITY, age of, § 25. Attainment of ward to terminates guardianship, § 255. Joint authority, words giving, § 12. Mining partnership, majority control, § 2520. Of partners, authority of, § 2428. MALICE: See Libel; Slander. Etxemplary damages for, § 3294. Interest as damages in case of, § 3288. MANUFACTURE, agreement to, need not be in writing, § 1740. Implied warranty on sale of, §§ 1769, 1770. MAP of wagon road, § 513. Railroad, to be filed, § 466. MARINE CARRJERS, delay, § 2117. Delivery of freight, manner of, § 2119. Deviation from voyage, § 2117. General duties of, § 2117. Governed by congress, § 2088. Is what, § 2087. Liability, effect of acts of congress, § 2197. Liability in case of fire, § 2197. Liability of, §§ 2197, 2198. Liability, perils of the sea, § 2197. Perils of sea are what, § 2199. Perils of sea, liability for loss by, § 2197. Regulated by acts of congress, § 2198. Stowage, § 2117. 934 MARINE CARRIERS— MARRIAGE. MARINE INSURANCE: See Insurance; Insurance Cor- porations. MARITIME LAW: See Shipping. MARK as signature, § 14. Included in signature or subscription, § 14. Signature by, how made, § 14. Signature by, two witnesses necessary, § 14. MARRIAGE. Absence of former spouse, marriage during, effect of, § 61. Action to have marriage declared incestuous or void, § 80. Action to have validity of marriage declared, § 78. Annulment of, conclusiveness of judgment of, § 86. Annulment of, custody of children, § 85. Annulment of, does not affect legitimacy of children, § 84. Annulment of, grounds for, § 82. * Annulment of, limitation of actions for, § 83. Annulment of, time within which to bring action for, § 83. Annulment of, who may sue for, § 83. Breach of promise, damages, § 3319. Bre'ach of promise of, want of chastify justifies, § 62. Certificate of, delivery of copy to parties, §§ 74, 79. Certificate of, filing, §§ 74, 79. Certificate of, requisites of, § 73. Conditions restraining, effect of, § 710. Conflict of laws relating to, § 63. Consent alone will not constitute, § 55. Consent, how proved, § 57. Consent to, minors when may, § 57. Contracted out of state, validity of, § 63. Custody of children of annulled marriage, § 85. Declaration of, by action in court, § 78. Declaration of, by members of particular denomina- tion, § 79a. Declaration of, penalty for failure to record, § 79^. Declaration of, recording, § 79^. Declaration of, subscription and attestation of, § 76. Declaration of, to be acknowledged and recorded, §§ 77, 79 Va. Declaration of, to contain what, § 76. Declaration of, when may be made, §§ 76, 77. Defined, § 55. Dissolution of: See Divorce. MAHRIAGS. »35 Dissolved how, § 90. Divorce: See Divorce. E2xamination of applicant for license, § 72, Examination of candidate, § 72. Foreign, validity of, § 63. Guardian, powers of temiinated by, § 255. Incestuous, judicial declaration of, § 80. Incestuous, what is, and effect of, § 59. Infant's, ends parental authority, § 204. Infant, consent of parent or guardian when necessary, § 69. Legitimacy of children born in wedlock presumed, § 193. Legitimacy of children not affected by annulment of marriage, § 84. Legitimate, children are, where divorce granted, § 1387. Legitimate, children of annulled marriage are, § 1387. Legitimizes child born before wedlock, § 215. License, certified copy of, § 74. License, consent, filing of, § 69. License, consent necessary where parties under age, § 69. License, examination of applicant for, § 69. License, filing, § 74. License, marriage without, § 79. License, minister may marry without when, § 79. License, necessity of, §§ 69, 72, 79. License, infant, consent of parent or guardian neces- sary, § 69 License, infant, examination of parties, § 69, License necessary, § 69. License not to issue to what persons, § 69. License, what to show, § 69. License, how obtained, § 69. License, not to issue for marrjage between tvrhite per- son and negro or mongolian, § 69. License, requisites of, § 69. Minors capable of, § 56. Mongolians and whites, effect of, § 69. Mulattoes and whites void, §§ 60, 69. Remarriage within one year from interlocutory decree in divorce void, § 61. Negroes and whites, void, §§ CO, 69. Nullification of, legitimacy of children not affected, § 84. Out of state, validity of, § 63. d36 MARRIAGE— MAHRlEt) WoMAN. Proving, mode of, § 57. Promise of, release from by unchastlty, § 62. Religious sect, declaration of marriage by members of, § 79a. Religious sect, marriage of, manner of, § 79a. Restraint of, contracts in, void, § 1676. Second, during lifetime of other spouse, effect of, § 61. Second, effect of where spouse not heard of for five years, § 61. Second, void, unless prior marriage annulled, § 61. Second, within one year from interlocutory decree in divorce, void, § 61. Settlement, effect of recording, § 180, Settlements, executed how, § 178. Settlements, minors m'ay make, § 181. Settlement to be acknowledged and recorded, §§ 178, 179. Solemnization, examination of candidates, § 72. Solemnization, form of, §§ 68, 71. Solemnization, how proved, § 57. Solemnization, members of particular religious denom- ination, § 791^. Solemnization necessary, § 55. Solemnization, noncompliance with statute by third person, § 68. Solemnization, substantial requisites, § 72. Solemnized, m'ay be by whom, § 70. Solemnized, how, § 68. Statute of frauds, § 1624. Unchastity as ground for release from promise of, § 62. Validity of, determined and declared by court, § 78. Void, judicial declaration of, § 80. Voidable, if consent obtained by fraud or force, § 58. Voidable, if either physically incapable, § 58. Ward's, supersedes guardian appointed by ward, § 254. What constitutes, § 55. Whites, marriage of with negroes, mongolians or mu- lattoes void, § 60. Will, effect of marriage on, §§ 1298-1300. MARRIAGE SETTLEMENT, §§ 178-181. MARRIED WOMAN, acknowledgment of deed by, § 1093. Acknowledgment of her conveyance, § 1187. Conveyance by, how executed, § 1093. Conveyance of, effect of, §§ 1093, 1187. Dividends on stock payable to, § 325. Married woman— Master aKd servant. sm Homestead stock may be owned by, § 561. May draw dividends in savings and loan society, § 575. May make and withdraw deposits in savings and loan corporation, § 575. Power of attorney by, § 1094. Proxy given by, § 325. Savings and loan stock may be owned by, § 575. Signature of husband not necessary on transfer of stock, § 325. Signature of husb'and not necessary where proxy giv- en, § 325. Stock in name of, dividends to whom paid, § 325. Stock in name of, how transferred, § 325. Stock in name of, proxy, § 325. Stockholder, married woman as, has same rights as if sole, § 325. Transfer of stock by, § 325. Will, may dispose of separate estate by, § 1273. Will of, how executed and proved, § 1273. MARSHALING ASSETS, order of, §§ 2899, 3433. MASCULINE, includes feminine and neuter, § 14. MASTER AND APPRENTICE: See Apprenticeship. MASTER AND SERVANT, abduction of servant forbid- den, § 49. Account, employee's duty to, § 1986. Accounting by servant, § 2014. Act giving lien to laborers in logging camps, § 3065, note. Act giving lien for laborers in logging camps, § 3065, 3061, note Assumption of risks by servant, § 1970. Apprenticeship: See Apprenticeship. Apprentices, act relative to, p. 665. Assignment of wages by employee of corporation, act relative to, p. 700. Care required of employee for his own benefit, § 1979. Care required of employee for reward, § 1978. . Care required of gratuitous employee, § 1975., Compensation, act relating to assignment of wages by employees of corporation, p. 700. Compensation, acts providing for manner of by cor- poration, pp. 699, 700. Compensation for service without employment, § 2078. Compensation for employer's successor, § 1^98. Compensation of employee dismissed for cause, § 2002. 538 MASTER AND SERVANT. Gompensation of employee leaving for cause, § 2003. Compensation, presumption as to, §§ 1980, 2011. Compensation, presumption as to where employment continued beyond term, § 1980. Confidential employment: See Trusts. Confidential employments, obligations defined by title on trusts, § 1992. Continuance of service after death or incapacity of em- ployer, § 1998. Contract of employment defined, § 1965. Contract of service limited to two years, § 1980. Death of employee, § 1997. Death of employer, §§ 1996, 1997, 1998. Death of joint employee, § 1991. Definition of contract of employment, § 1965. Delivery without demand, employee not bound to make, § 1987. Demand, employee not bound to send without demand, § 1987. Discharge of servant, grounds for, §§ 2000, 2015. Dismissal for cause, compensation, § 2002. Dismissal of employee, grounds for, §§ 2000, 2015. Duties of employee for his own benefit, § 1979. Duties of employee for reward, § 1978. Duties of gratuitous employee, §§ 1975-1977. Employee not bound to deliver without demand, § 1987. Employee to comply with directions, § 1981. Employee to obey, § 1981. Employment, contract of, defined, § 1965. Enticement of servant forbidden, § 49. Expenses and losses, employer must indemnify em- ployee for, § 1969. Fellow-servant, master's liability for, § 1970. Gratuitous employee, duties of, §§ 1975-1977. Hiring renewal of, presumption as to, § 2012. Hiring, term of. §§ 2010, 2011. * Incapacity of employee, discharge for, § 2000. Incapacity of employer does not terminate relation, when, § 1998. Incapacity of master, terminates relation, § 1996. Indemnity against servants' acts, contract of, § 2774. Indemnify employee, when employer must, § 1969. Indemnify employee, when employer need not, § 1970. Injury to servant forbidden, § 49. Injury to servant by third, person, § 49.' Joint employees, duty of survivor, § 1991. 1 MASTER AND SERVANT— MASTER, SHIP'S. »3J Lien of loggers and laborers upon logs cut, p. 740, Stats. Lunch hour for laborers in mills and logging camps, p. 744, Stats. Msister's liability to servant, in general, § 1969. Miners, act providing for protection of, p. 745. Mutual right of protection, §§ 49, 50. Neglect of employee, discharge for, § 2000. Negligence of employee, liability for, § 1990. Negligence of master, liability for, § 1971. Obey, employee's duty to, § 1981. Ordinary risks, servant assumes, § 1970. Power of attorney, gratuitous employee accepting, du- ties of, § 1977. Preference to employer's interest, § 1988. Renewal of hiring, presumption as to, § 2012. Seduction of servant forbidden, § 49. Servant defined, § 2009. Servant not bound to send anything to master through third person, § 2014. Servant to pay over without demand, § 2014. Service without employment, §§ 2078, 2079. Skill, degree required of employee, § 1983. Skill, employee must use all he has, § 1984. Substitute, liability of employee for, § 1989. Substitute liable directly to employer, § 1989. Surviving employee, duty of, § 1991. Term of hiring, presumption as to, §§ 2010, 2011. Termination, death operates as, § 1997. Termination of relation at will, § 1999. • Termination of relation by death or incapacity of em-' ployer, § 1996. Termination of relation by employee for fault, § 2001. Termination of relation by employer for fault, § 2000. Termination of relation rot worked by death of em- ployer, when §§ 1996, 1998. Termination of relation, what works a, § 1997. Term of hiring, presumption as to, §§ 2010, 2011. Things acquired by employee belong to employer, § 1985. Time belongs to master, § 2013. Usage, employee to conform to, § 1982. What things acquired by employee belong to em- ployer, § 1985. MASTER, SHIP'S: See Shipping. 940 MATE— MINING CORPORATIONS. MATE: See Shipping. MAXIMS, enumeration of, §§ 3510-3543. In general, § 3509. MECHANICS' INSTITUTES: See title, "Chambers of Commerce, Boards of Trade and Mechanic's In- stitutes." Act validating acknowledgments by, p. 665. MECHANIC'S LIEN, homestead, liability for, § 1241. Regulated by Code of Civil Procedure, § 3059. MEMORANDUM, auctioneer's, binding on parties, § 1798. Auctioneer's, to contain what, 8 1798. Declarations of trust, of, § 2254. On contract for sale, § 1739. On contract for sale of real property, § 1741. See Statute of Frauds. MENACE consists in what, § 1570. Rescission for, § 1689. MERCHANDISE, implied warranty as to, §§ 1768-1771. MERGER, declarations, merger of in trust, § 2554. Dominant and servient estate, § 811. Interests of, destroys servitude, § 811. Interest of, when destroys hiring, § 1933. Oral negotiations merged in writing, § 1625. Writing supersedes oral negotiations, § 1625. MESSAGES, duty of carriers of to deliver, § 2161. METER, gas, §§ 628, 631. MINE: See Mining Corporations. Claims, recording affidavits of work and notice, § 1159. Claims, recording notice of location, § 1159. Fixtures attached to, § 661. Hydraulic mining, §§ 1424, 1425. Mortgage of machinery, § 2955. Partnership, mining, §§ 2511-2520. MINING CORPORATIONS act for the better protection of stockholders in, § 588, note. Act requiring posting statements, keeping books, etc., § 588, note. Act permitting inspection of property, § 588, note. Agencies for transfer of stock governed by^ by-laws and directors, § 586. Agencies for transfer of stock may be established, 8 586. MINING CORPORATIONS. 941 Agency, stock not issued at unless certificate sur- rendered, § 587. Agency, stock transferred at, how signed, § 687. Agency, transfer at binding, § 586. Books to be kept open for inspection, § 588, p. 749, Stats. Consolidation calling meeting of stockholders to elect directors, § 587a. Consolidation, creditors not to be affected, § 587a. Consolidation of, certificate of, filing of, § 5bTa. Consolidation of, certificate, what to contain and who to sign, § 587a. Consolidation of, how effected, § 587a. Examination of ground, stockholder has right of, §§ 588, 589, p. 749, Stats. Examination of property and books, right of, § 588. Examination, order for, duty of superintendent on re- ceiving, § 589. Examination, order for, liability of president failing to issue, § 590. Examination, order for, president to issue to stock- holder on application, § 589. Examination, order for, punishment of superintendent failing to obey, § 589. Inspection of books, right of, § 588. Inspection of reports, accounts and correspondence of superintendent, right of, § 588. May consolidate, § 587a. Mortgage of property, p. 752, Stats. Posting monthly balances, § 588, p. 749, Stats. Protection of miners, act providing for, p. 745 Receipts and expenditures, liability of directors fail- ing to make and post, § 590. Receipts and expenditures, monthly report of by su- perintendent, § 588. Receipts and expenditures, monthly statement to be published, § 588. Receipts and expenditures, statements of, verification and posting of, § 588. Receipts and expenditures, act relating to posting of statements, § 588, note. Receipts and expenditures, secretary to keep books of, § 588. Removal of oflicers, act providing for, p. 746. 942 MINING CORPORATIONS-MISREPRESENTATION. Removal of office, filing certificate of consent, notice, publication and removal, § 585. Stock transfer agencies, establishment in other states authorized, § 586. Stock transfer agencies, governed by by-laws and dir rectors of corporation, § 586. Stock transfer agencies, stock, how transferred at, § 587. Stock transfer agencies, transfer at, validity of, § 586. Superintendent, accounts, correspondence and report open for inspection, § 588. Superintendent, duty of, on receiving order for exam- ination, § 589. Superintendent failing to obey order of examination, punishment of, § 589. Superintendent, monthly report of, § 588. Superintendent, report as to ore and discoveries, § 588. MINING PARTNERSHIP. Express agreement not neces- sary, § 2512. Express authority necessary to bind, § 2519. Lien of partners on property, § 2514. Mine is firm property, § 2515. One partner cannot bind except by express authority, § 2519. Owners of majority of shares govern, § 2520. Profits and losses shared how, § 2513. Purchaser in takes subject to what liens and claims, § 2517. Ptfrchaser in takes with notice of liens, when, § 2518. Purchaser of interest becomes partner, § 2516. Relation arises how, § 2512. Sale of property, p. 752, Stats. Stockholders, act for protection of, pp. 749, 752. Stock to be in name of real owner, p. 752, § 2, Stats. Transfer by partner does not dissolve, § 2516. When exists, § 2511. MINOR: See Infants. MISDEMEANOR. Acting as. agent of foreign corporation without complying with statute, § 645. Apprentice, enticing or harboring, § 275. Foreign agent commits, by noncompliance with stat- ute, § 645. MISREPRESENTATION: See Fraud. MISTAKE— MORTGAGE. »43 MISTAKE, as affecting right of specific performance, § 3391. Consent obtained by, § 1567. Disregarding erroneous parts of writing, § 1640. Fact, what is, § 1577. Fact or law, may be either of, § 1576. Foreign laws, of is mistake of fact, § 1579. Law, of, what is, § 1578. Property acquired by, § 1713. Reformation of contract for, § 3399. Rescission for, §§ 1689, 1690. Rescission for, what stipulations do not defeat, § 1690. Rescission of contract for, § 3407. Restoration of property obtained by demand, § 1713. Specific performance, effect on, § 3391. Trust arising from, § 2224. Will, in, § 1340. MOCK AUCTION: See Auction. MONEY, loan of: See Loan. Exchange of, § 1804. MONGOLIANS, marriage between, and whites forbidden, § ^0. MONTH defined, § 14. MONUMENT, duty of coterminous owners respecting, § 841. MORAL OBLIGATION as a consideration, § 1606. MORTGAGE: See Lien. Acknowledgment of, § 2952. Adversely held property may be mortgaged, § 2921. Assignment of debt, effect of, on the security, § 2936, i^ssignment of may be recorded, § 2934. Assignment, record of as notice, §§ 2934, 2935. Benevolent association, by, § 598. Bona fide mortgagee, rights against unrecorded instru- ment, § 1214. Bottomry not subject to law of, § 2942. Building and loan association may make, § 640. By religious, social, or benevolent association, § 598. Certified, how, § 2952. Chattel, acknowledged how, § 2963. Chattel, attachment of the property, proceedings on, §§ 2968-2970. Chattel, continuance on crop after severance, § 2972, Ui Mortgage. Chattel, enumeration of chattels that may be the sub- ject of, § 2955. Chattel, execution against the property, proceedings on, §§ 2968-2970. Chattel, foreclosed how, § 2967. Chattel, form of, § 2956. Chattel, fraudulent transfer, delivery, § 3440. - Chattel, not conforming to statute, effect of, § 2973. Chattel, of ships, void as to creditors, etc., unless re- corded, § 2958. Chattel, on property not authorized, effect of, § 2973. Chattel, recorded how, § 2963. Chattel, recorded in separate books, § 2963. Chattel, recorded in what counties, § 2959. Chattel, recorded where, when property belongs to carrier, § 2961. Chattel, recorded where, when property in transit, § 2960. Chattel, recording certified copies in other counties, § 2964. Chattel, recording in different places, § 2962. Chattel, record of certified copy, effect of, § 2964. Chattel, removal of property from county, §§ 2965, 2966. Chattel, removal of property, rights of mortgagee on, § 2966. Chattel, sale of. the property under process, distribu- tion of proceeds, § 2970. Chattel, ships not subject to law of, when, § 2970. Chattel, void as to creditors, etc., unless recorded, § 2957. Chattel, void as to creditors, etc., when, § 2957. Chattel, what property may be the subject of, § 2955. Deed deemed a, when, §§ 2924, 2925. Defeasance, deed may be shown to be subject to, § 2925. Defeasance to be recorded when deed absolute intend- ed as mortgage, § 2950. Defined, § 2920. Discharge, certificate of to be given to mortgagor, § 2941. Discharge, liability for refusal to execute certificate of, § 2941. Discharge, recording certificate of, § 2940. Discharge of record by foreign executor, § 2939%. Mortgage. g^ Discharged of record, how, §§ 2938, 2939. Execution of, formalities, § 2922. Extended, how, § 2922. Extends to what, § 2926. Factor may not, § 2368. Foreclosure of right of redemption, § 2931. Foreign executor, discharge by, § 2939^. Form of, § 2948. Homestead liabilty for, § 1241. Homestead mortgaged how, § 1242. Incumbrance includes what, § 1114. Insurance on mortgaged property, §§ 2541, 2542. Insurance by mortgagor assigned to mortgagee, effect of, § 2541. Insurance by mortgagor in favor of mortgagee, effect of, § 2541. Is subject to law of liens, § 2877. Lien extends to what, § 2926. Lien of is independent of possession, § 2923. Lien of is special, § 2923. Lien of is special, unless, § 2923. Mining property, mortgage of, p. 752, Stats, Personal obligation, is not, § 2928. Possession, agreement may be made for without new consideration, § 2927. Possession, mortgagee not entitled to unless author- ized, § 2927. Possession, mortgagor may agree to mortgagee's with- out new consideration, § 2927. Power of attorney to execute, what necess'ary, § 2933. Power of sale, § 2932. Power of sale, when deemed part of security, § 858. Power to sell, assignee may exercise, § 858. Power to sell passes to assignee, § 858. Priority of a purchase money, § 2898. Property that may be mortgaged, § 2947. Proved, how, § 2952. Railroad, § 456. Recording, § 1164. Recording certificate of discharge, § 2940. Recording defeasance where deed is intended as mort- gage, § 2950. .Recording, in general, § 2952. Record of assignment as notice, §§ 2934, 2935. Redemption, §§ 2903-2905. Redemption, right of, how foreclosed, § 2931. civil Cod©-» 946 MORTGAGE— MUNICIPAL CORPORATION. Religious association, by, § 598. Renewed, how, § 2922. Respondentia not subject to law of, § 2942. Satisfaction, certificate, liability of mortgagee for re- fusal to give, § 2941. Satisfaction, certificate to be given mortgagor, § 2941. satisfaction, discharged of record, how, §§ 2938, 2939. Satisfaction, duty of mortgagee on, § 2941. Satisfaction, recording certificate of discharge, § 2940. Shipmaster's power to hypothecate, § 2377. Ships, of, § 2971. Slilp, of, necessity of recording, § 2958. Statute of frauds, § 2922. Title subsequently acquired inures to mortgagee, § 2930. Transfer deemed a, § 2924. Trust, express, to mortgage realty, § 857. Vessels, § 2955. Wagon road corporation, by, § 522. Waste, who may not commit, § 2929. Will, effect of incumbrance on, § 1302. WUl not revoked by, § 1302. Written, must be, § 2922. MOTHER: See Parent and Child. Apprenticeship, consent to, § 265. Custody of child, not transferred without her consent, § 197. Illegitimate, of, consent of to Ms adoption, § 224. Illegitimate, of, entitled to custody and earnings, § 200. Illegitimate, of, succeeds to his property, § 1388. MULATTOES, marriages between, and whites void, §§ 60, 69. MULTIPLICITY OF SUITS, injunction to prevent, § 3422. MUNICIPAL CORPORATION, injunction not granted to prevent legislative act, § 3423. Fares on railroads in cities over 100,000, act limiting, p. 772, Stats. Franchises for roads for horseless vehicles, | 524. Franchises for street railway, act limiting time within which may be granted, p. 773. Franchises, acts relating to sale of and governing conditions of sale, pp. 753-762. Limit of term of lease of property of, $ 718. Private and public corporations distinguished, § 284. MUNICIPAL CORPORATION— MUTUAL INSURANCE. M? Water company's relations with, §§ 548-551. Will, power to take under, § 1275. MURDER. One convicted of murdering decedent not to succeed to estate, § 1409. MUTUAL BENEFIT SOCIETY: See Religious, Social, 'and Benevolent Corporation. MUTUAL BENEFIT AND LIFE ASSOCIATIONS. Act relating to mutual benefit and relief associa- tions, § 453a, note. Articles of incorporation, filing of, § 452a. Articles of incorporation, signing and verification, § 452a. Articles of incorporation, what to contain, § 452a. ■ Assessments, limit on power to levy, § 453. Assessments, power to levy, § 453. By-laws, § 453. Formation of, authorized, § 452a. Formation of, manner of, § 452a. Number of members, § 452a. Powers and liabilities, § 453. MUTUAL INSURANCE ON ASSESSMENT PLAN. Act relating to life, health, accident and annuity or endowment insurance on asses'sment plan, § 453d, note. Application, contract to be founded on, § 453j. Application, false statement in, punishment for, § 453 j. Application, report of phyoician, § 453j. Articles of incorporation, filing, § 453e. Benefit societies exempt from provision of act, § 453p. Bonds or securities, held in trust for contract holders, § 453e. Bonds or securities, deposit with state treasurer, § 453e. Business, compliance with Political Code prerequisite to soliciting, § 453e. Business to be commenced within year, § 453e. Certificate of insurance commissioner before issuance of contracts, § 453e. Contract of, defined, § 453d. Contracts, certificate of insurance commissioner to be obtained before issued, § 453e. Contract, limit upon right to issue, § 453j. Contracts, membership and capital required before io suing, § 453e. S48 MUTUAL INSURANCE. CJontracts, must show liabilities, not limited to fixed premiums, § 453d. Contracts, what to specify, § 453g. Corporations to carry on, laws governing, § 453e. Corporations to carry on may be formed, § 453e. Discontinuance of business disposition of reserve fund, § 453h. Exempt, money obtained from corporation is, § 453k. False statements to, punishment for, § 453j. Fees, amount of and disposition of, § 453n. Foreign corporations, conditions precedent to doing business, § 453i. Foreign corporations, license, renewal of, § 4531. Foreign corporations, license, revocation of and notice of, § 453i. Foreign corporations, license to be issned to, when, § 4531. Foreign corporation, retaliatory clause relating to fees, etc., § 4531. Fraternal societies exempt from provisions of act, § 453p. Insurance commissioner, examining Into affairs of by, § 4531. Insurance commissioner, expenses, presentment, al- lowance and payment of, § 453o. Insurance commissioner, proceedings by against, § 4531. Investment of funds, § 453e. Investment of reserve and emergency fund and deixoslt ^ of securities, § 453h. Lapsing of policies, notice of, § 453m. Moneys obtained from, exempt, § 453k. Name of, § 453e. Organization, to be completed in year, § 453e. Payment, time of and effect of failure to pay, § 45Sg. Penalties, disposition of, § 453n. Pre-existing corporations, reincorporation of, § 453f. Pre-existing corporations, rights of, § 453f. Priority of indebtedness under contract, § 453g. Reserve and emergency fund to be created, § 453h. Reserve and emergency fund, disposition of where business discontinued, § 453h. Reserve and emergency fund, extent of, § 453h. Reserve and emergency, fund, investment of and de- deposit of securities, § 453h. MUTUAL INSURANCB-NEGLIGENCB. 949 Reserve and emergency fund, time within which to be accumulated, § 453h. * Reserve and emergency fund, what part of, § 453h. Revocation of power to do business, § 4531. Secret societies exempt from provisions of statute, § • 453p. Statements to be filed annually, § 4531. MUTUAL LIF^ AND ACCIDENT INSURANCE CORPORA- TION, §§ 437-452. MUTUALITY of consent, § 1580. Of intention, contract interpreted to give, § 1636. NAME, adopted child of, § 228. Certificate on change of partnership, § 2469 Change of p'artnership, as notice of dissolution, § 2454. Change of, property, how conveyed in case of, § 1096. Corporate, to be stated in articles, § 290. Corporation, name of, prohibitions in regard to, § 296. Corporation, change of name by: See Corporations, III. Error in corporate, § 357. Fictitious, in partnership, §§ 2466, 2467. Misnomer of corporate name, effect of, § 357. Partnership under fictitious, §§ 2466-2471. See Goodwill, NAVIGABLE WATERS: See Waters. State owns land below water of, § 670. NAVIGATION: See Shipping. NECESSARIES, husband's liability for, § 174. Infants' contract for, cannot be disaffirmed, § 36. Liability of husband for necessaries furnished wife § 174. Lunatic's liability for, § 38. Parent not liable for support furnished child, § 208. Parent when liable for necessaries furnished child, § 207. Promise of child to pay for those furnished parent. § 206. Third person may furnish child, § 207. NEGLIGENCE, agent's principal's liability for, § 2338. Borrower to repair injuries caused by, § 1889. Carrier cannot exonerate from, § '2175. Contributory, passenger violating rules, § 484, Depositary's liability for, §§ 1838, 1840. 950 XEGL.IGBNCE-NEGOTIABLE INSTRUMENTS, L Divorce for neglect, §§ 92, 107. Employee's liability for, § 1990. Hirer, care required of, § 1928, Hirer to repair injuries caused by, § 1929. Insurer not exonerated by, § 2629. Passenger violating rules and instructions, § 484. Pilot's liability of shipmaster for, § 2384. Shipmaster's liability for, §§ 2043, '2383. Want of ordinary care or skill, liability for, § 1714. Willful acts, liability for, § 1714. NEGOTIABLE INSTRUMENTS. I. Definitions and kinds of; code provisions relating to. II. Execution and form of; conditions ^nd stipula- tions In. III. Consideration. IV. Construction of. V. Bills of exchange. VI. Promissory notes. VII. Checks. VIM. Indorsement. IX. Maturity of; days of grace. X. Presentment and demand. XI. Acceptance. XII. Dishonor and notice. XIII. Protest. XIV. Payment I. Definitions and kinds of; code provisions relating to. Bank notes are, § 3261. Bank note is negotiable even after payment, § 3261. Bill of exchange is negotiable instrument, § 3095. Bill of lading, §§ 2127, 2128. Bond is, § 3095. Certificate of deposit is, § 3095. Check is negotiable instrument, § 3095. Code provisions apply to what instruments, § 3086. Foreign bill, defined, § 3224. Inland bill defined, § 3224. Kinds of, enumerated, § 3095. Negotiable instruments defined, § 3087. Note defined, § 3244. Promissory note is, § 3095. NEGOTIABLE INSTRUMENTS, II-V. 961 What instruments are negotiable, § 3095. Wareuouse receipts: See Warehousemen. N. Execution and form of; conditions and stipulations in. Ahsolute, must be, § 3088. Allonge, § 3110. Alternative, instrument in, § 3090. Attorneys' fees, may provide for, § 3088. Blank, liability to indorse, § 3125. Condition, must be for unconditional payment of money, § 3088. Contain, what it must not, § 3093. Costs, may provide for, § 3088. Date, any may be inserted, § 3094* Date, nominal, § 3094. Date not essential, § 3091. Death of maker at time of nominal date, § 3094. Incapacity of maker at time of nominal date, § 3094. Money must be payable in, § 3088. Must not contain other contract, § 3093. Option, negotiable instrument giving, § 3090. Payee must be ascertainable, § 3089. Pledge of collateral may contain, § 3092, Unconditional, must be, § 3088. III. Consideration. Effect of want of, § 3122. Presumption of, § 3104. IV. Construction of. Bearer, payable to, how construed, § 3101. Construction of bill payable to person or his order, § 3101. Fictitious person, payable to without indorsement, effect of, § 3102. Maker, payable to without indorsement, effect of, § 3102. Order, payable to, how construed, § 3101. Payable to person or order, how construed, § 3101. Payee fictitious, paj'^able to bearer, § 3103. V- Bills of exchange. Acceptance, unconditional promise to accept, § 3197. Days of grace not allowed, § 3181. Deemed a note, when, §§ 3245, 3246. Defined, § 3171. Dishonor of, damages, § 3235. 2 NEGOTIABLE INSTRUMENTS. VI-VIH. Drawee in case of need, § 3172. Drawer's rights and obligations, § 3177. Foreign bill defined, § 3224. Inland bill defined, § 3224. In parts of a set, §§ 3173, 3175. Payable where, bill is, § 3176. Presentment when excused, § 3176, Is negotiable instrument, § 3095. Set, in a, §§ 3173-3175. Waiver of presentment, § 3176. When must be in a set, § 3174. VI. Promissory notes. Code sections applicable to, § 8247. Defined, § 3244. Is negotiable instrument, § 3095. Note, bill is deemed a, when, §§ 3245, 8246. VII. Checks. Code sections applicable to, § 3255. Defined, § 3254. Effect of delay in presentment, § 8255. Indorsee after maturity, without notice, § 8255. Is negotiable instrument, § 3095. VIM. Indorsement. Before delivery, liability on, § 3117. Destruction of negotiability by indorser, § 8115. General, how made special, § 3114. General, Is what, § 3112. General, special indorsement cannot be made after, § 3114. Indorse, agreement to, duty on, § 3109. Indorsee in due course is who, § r?123. Indorser in due course, rights of, § 3124. Indorsee of check after maturity, § 3255. Indorsee privy to contract, § 3120. Indorsee, rights of, § 3120. Indorser, discharge of by delay, § 3248. Indorser, implied warranty of, § 3116. Indorser, liability of in general, § 3116. Indorser, who is, § 3108. Is special or general, § 3111. Is what, § 3108. On separate paper, 8 3110. Presumption of consideration, § 8104. Special, is what, § 3113, NEGOTIABLE INSTRUMENTS, IX-XI. 958 Special, to destroy negotiability, § 3115. Unindorsed note, effect of, § 3102. Without recourse, and effect thereof, §§ 3118, 3119. IX. Maturity of; days of grace. Days of grace, § 3181. Maturity apparent, is wheij, § 3182. Maturity apparent, of bill payable at sight, § 3134. Maturity, apparent, of note, §§ 3135, 3136. Maturity, where last day falls on holiday, § 3132. X. Presentment and demand. Demand, effect of want of on principal debtor, § 3130 Demand not necessary, § 3130. Presentment, accepted for honor and notice of non payment, § 3206. Presentment at particular place, § 3130. Presentment, delay in -excused, when, §§ 3158, 3219. Presentment, delay in, exoneration of parties, § 3189. Presentment, drawer, exoneration of by delay in, §§ §§ 3189, 3213, 3214. Presentment, effect of delay, §§ 3213, 3214. Presentment excused as to whom, §§ 3156, 3157. Presentment excused when, §§ 3176, 3186, 3218, 3220. Presentment, indorser, exoneration of by delay in, 3189, 3213, 3214. Presentment, made how, §§ 3131, 3186. " Presentment, necessity of where acceptance refused, § 3212. Presentment of check, effect of delay in, § 8255. Presentment of note, effect of delay in, § 3248. Presentment of part of bill in set, § 3175. Presentment of single part of set, § 3175. Presentment, place of, § 3212. Presentment, place of where not accepted, § 3211. Presentment, rules for making, § 3131. Presentment, time for, §§ 3131, 3185, 3189. Presentment to drawee in case of need, § 3188. Presentment to one of several joint drawees, § 3187. Presentment to principal debtor not necessary, § 3130. Presentment, waiver of, §§ 3159, 3160. XI. Acceptance. Admits what, § 3199. By refusal to return, § 3195. By separate instrument, §§ 3110, 3196., Cancellation of, § 3198. Ui NEGOTIABLE INSTRUMENTS, XII. Foreign bill, acceptance for honor, §§ 3203, 3233. Holder entitled to on face of bill, § 3194. Honor, acceptance for, §§ 3203-3207. Honor, acceptance for does not excuse notice, § 3207. Honor, acceptance for, how made and enforced, §§ 3205, 3206. Honor, aceptance for, presentment and notice of dis- honor, § 3206. Honor, acceptor for reimbursement of, § 3205. Honor, acceptor for to give notice, § 3205. Made how, § 3193. Presentment for to one of several joint drawees, § 3187. Presumption of consideration, § 3104. Promise of, sufficiency of, § 3197. Qualified, § 3195. Single part of a set, acceptance of, § 3175. Sufficiency of when made with owner's consent, § 3195. What sufficient, § 3195. XII. Dishonor and notice. Dishonor is what, § 3141. Dishonor of bill payable after sight, presumption of, § 3133. Dishonor of foreign bill, damages for, §§ 3234-3238, 3303. Foreign bill, notice of where protest waived, 8 3282. Foreign bill, notice of protest necessary, § 8225. Notice of, additional time for, § 3150. Notice of, after death, § 8146. Notice of by agent, § 3149. Notice of by subagent, § 3149. Notice of, delay in excused, when, § 3158. Notice of by indorser, time for, § 3150. Notice of, effect of, § 3151. Notice of, excused as to whom, §§ 8156, 8157. Notice of excused when, §§ 3155, 3220. . Notice of, form of, § 3143. Notice of given in ignorance of death, § 3146. Notice of inures to benefit of others, § 3151. Notice of nonpayment of bill accepted for honor, 9 3206. Notice of not excused by acceptance for honor, § 3207. Notice of served how, § 3144. Notice of served how after death of indorser, § 8145. Notice of, time for giving, § 3147. Notice of, time for mailing, § 3148. NEGOTIABLE INSTRUMENTS, XIII-XIV. »55 Notice of, to whose benefit inures, § 3151. Notice of, waived, § 3155. Notice of, waiver of, §§ 3159, 3160. Notice of, who may give, § 3142. XI M. Protest. By whom m-ade, § 3226. Foreign bill, notice of dishonor, protest necessary, § 3225. Foreign bill, waiver of protest and effect of, § 32S2. How made, § 3227. Notice of given how, § 3231. Time for making, § 3229. Waiver of, effect of, § 3160. Waiver of, § 3232. When excused, § 3230. Where made, § 3228. XIV. Payment. Bill of exchange is payable where, § 3176. Conditions that may be demanded on, § 3137. Elxtinction by payment, § 3164. Extinction iu general, what constitutes, § 3164. Extinguishes, § 3164. For honor, §§ 3?03, 3204. For honor, declaration of, § 3233. Instrument need not be surrendered on, when, § 3137. Instrument payable at particular time and place, S 3130. Lost note, indemnity, § 3137. Offer of what equivalent to, § 3130. Of part of bill in set, § 3175. Payable at particular time and place, offer of payment, § 3130. Payor for honor, reimbursement of, § 3205. Payor for honor, to give notice of payment, § 3205. Place of not specified, § 3100. Surrender of instrument a condition of, § 3137. Time of not specified, when payable, § 3099. Time or place of, need not be designated, § 3091. NEGROES. Marriages between negroes and whites void, §§ 60, 69. NEUTER GENDER included in masculine, § 14. NEUTRAL PAPERS, implied warranty, in marine insur- ance, § 2688. 956 NEWSPAPERS— NOTICE. NEWSPAPERS, reports of public meetings are privileged, §§ 47, 48. NOMINAL DAMAGES, when allowed, § 3360. NON-NEGOTIABLE INSTRUMENTS, transfer of non- negotiable instrument, § 1459. NONRESIDENT, adoption proceedings, §§ 224, 226. Alien, inheriting, when must make claim within five 'years, § 672. Assignment for creditors by, §§ 3449, 3451. Transfer of stock by, § 326. NOTARY, acknowledgment, may take, §§ 1181, 1182. Acknowledgment or proof in state, § 1181. Acknowledgment or proof out of state, § 1182. Acknowledgment or proof out of United States, § 1183. Bill protested by, when, § 3226. Making protest, may give notice, § 3231. NOTE: See Negotiable Instruments. NOTICE, abandonment of ship to insurer by, §§ 2721, 2722. Abatement of nuisance, of § 3503. Acceptance of guaranty, notice of, § 2795. Action for possession, not necessary before, § 793, Actual, is what, § 18. Adverse claim to deposit, to depositor, § 1825. Agent, to as notice to principal, § 2332. Appropriation of water, of, §§ 1415, 1416. Assessment of stock, of, §§ 335-339. Carrier or depositary, necessary to stoppage in transit, § 3079. Change of corporation's principal place of business, § 321a. Change of name as, § 2454. Constructive, facts to put one on inquiry, § 19. Constructive, from knowledge of facts putting on in- quiry, § 19. Constructive, is what, § 18. Delay in, how waived, § 2636. Delinquent assessment, §§ 337-339. Depositary must give to real owner, § 1826. Directors and stockholders, posting, § 321. Dishonor, of, §§ 3141-3159. Duty of gratuitous depositary ceases upon, § 1847. Ejectment without notice, § 793. Election of directors of corporation, § 302. •Filing inventory of wife's property as, § 166, NOTICE. 9&1 Five days* notice of transfer of stock in trade to be recorded, § 3440. Form, § 3143. Found, of thing, § 1865. Freight, of arrival of to consignee, § 2120. Freight, of storage of to consignee, § 2121. Guaranty, notice of default, § 2808. Hirer of personal property may repair after, § 1957. Hirer of real property may repair after, § 1942. Hiring terminated by notice of death or incapacity, § 1934. Innkeeper exempted by giving, § 1860. Inquiry, of facts to put on, § 19. Instruments not avoided against purchaser with, § 1228. Insurance, of loss under, § 2633. Insurance, of loss under, defects in waived, § 2635. Is actual or constructive, § 18. Lease, terms of may be changed by notice, § 827. Letter of credit, to writer of, § 2865. Life insurance policy, of transfer of, § 2765. Meeting, of election by stockholders, § 302. Meeting to remove directors, of, § 310. Partnership, dissolution of, §§ 2453, 2454, 2509. Partnership, of renunciation of, relieves partner, § 2417. Pledge, of sale of, §§ 3002, 3003. Principal or agent, when deemed to other, § 2332. Principal's default, guarantor not entitled to, § 2808. Protest, of, § 3231. Purchaser for value without, §§ 856, 869. Record as, § 1207. Record of assignment of mortgage as, §§ 2934, 2935. Record of conveyance as, § 1207. Record of instrument as, § 1213. Re-enter, of intention to, § 791. SaJe of deposit in danger of perishing, § 1837. Selection of one of several alternatives, § 1449. Selection of place of delivery, § 1756. Stockholders, of meeting to continue corporate exist- ence, § 287. Tenancy at will, termination of, § 789. Tenant at will, to quit, §§ 789, 790, Tenant to give landlord of adverse proceeding, § 1949. Termination of hiring, § 1934. Terminates employment, § 1999. 058 NOTICE— OATH. Trustee, of adverse interests, § 2233. Unrecorded instrument valid between parties with, f 1217. Waiver of defects in, § 2635. See Negotiable Instruments, NOVATION denned, § 1530. Made by a contract, § 1532. Modes of, § 1531. Rescission of, grounds for, § 1533. Subject to rules governing contr^icts, § 1532. Substitution of obligation, § 1531. Substitution of parties, § 1531. NUISANCE, abatement does not preclude action, § 3484. Abatement of a private, § 3501. Abatement of a private, notice, § 3503. Abatement of a private, when allowed, § 3502. Abatement of a public, § 3491. Abatement of a public, by whom, § 3494. Abatement of a public, how, § 3495. Abatement not to prejudice right to damages, § 3484.. Defined, § 3479. Indictment for public, §§ 3491, 3492. Information for public, §§ 3491, 3492. Notice of abatement, §§ 3503. Private action for a public, § 3493. Private, is what, § 3481. Public, defined, § 3480. Public, private action for, § 3493. Remedies for a private, § 3502. Remedies for a public, § 3491. Successive owners, liability of, § 3483. Time does not legalize a public, § 3490. What not deemed a, § 3482. NUMBER, singular or plural, of words in code, § 14. NUNCUPATIVE WILL, §§ 1288-1291. OATH, defined, § 14. Homestead appraisers, of, § 1250. Includes what, § 14. Officer taking proof of instrument may administer, § 1201. Person solemnizing marriage may administer, § 72. Person taking acknowledgment authorized to admin- ister, § 1201. OBLIGATION. H68 OBLIGATION: See Contract Accord defined, § 1521. Accord, effect of, § 1522. Act of God excuses performance, § 1511. Alteration of contracts: See Contracts. Alternative, right of selection, how lost, § 1449. Alternative, right of selection, who has, § 1448. Alternatives indivisible, selection in case of, § 1450. Alternative, nullity of one, § 1451. Application of payment to, § 1479. Application of performance, by creditor, § 1479. Application of performance, order of, § 1479. Application of performanee, rescission of, § 1479. Arises from agreement or operation of law, § 1428. Arises, how, § 1428. Arising from obligation of law, how enforced, § 1428. Assuming, by accepting benefits, § 1589. Conditional, when, § 1434. Condition concurrent defined, § 1437. Condition concurrent, performance of, § 1498. Conditions, impossible, void, § 1441. Conditions, kinds of, § 1435. Conditions of forfeiture, construed how, § 1442. Conditions, performance of, when essential, § 1439. Condition precedent defined, § 1436. Condition precedent, performance of, § 1498. Conditions, repugnant, void, § 1441. Condition subsequent defined, § 1438. Condition, unlawful, void, § 1441. Consideration, ratable proportion when performance prevented, § 1514. Consideration: See Contracts. Contribution between joint obligors, § 1432. Covenants, apportionment of, § 1467. Covenants running with land, §§ 1460-1468. Created how, § 1428. Damages, limitation on amount of, for breach, § 3358. Defined, § 1427. Duty to abstain from injury to others, § 1708. Extinguished by performance, § 1473. Extinguishment of offer by performance, §§ 1485-1505. Extinguishment by performance, §§ 1472-1479. Forfeiture, construed how, § 1442 Imposed by law, §§ 1708-1717. Impossible conditions, void, § 1441. 580 OBLIGATION. Infant cannot disaffirm what, § 37. Interest stopped by offer of performance, § 1504. ' Interpretation, general rules of, § 1429. Interpretation: See Contracts. Joint debtors, release of, § 1543. Joint, presumption in favor of, § 1431. .Joint, several, etc., § 1430. Joint, when, § 1431. Law, creating and enforcing by operation of, § 1428. Law imposes what, §§ 1708-1717. Mistake: See Mistake. Offer of performance, effect of, § 1485. Payment, application to obligations, § 1479. Payment is what, § 1478. Payment, tender and deposit extinguish demand, § 1500. Pecuniary, extinction by tender, § 1500. Performance, application of act by way of, § 1479. Performance by one joint debtor, effect of, § 1474. Performance, compensation for delay, § 1492. Performance, conditional offer of, § 1494. Performance, creditor's retention of thing he refuses to accept, § 1505. Performance, custody of thing offered, § 1503. Performance, delay in, compensation, §"l492. Performance, directions by creditors, effect of, § 1476. Performance excused by what, §§ 1440, 1511. Performance excused when, §§ 1440, 1511. Performance extinguishes, § 1473. Performance, notice that one will not perform, § 1440. Performance of conditions essential, when, § 1439. Performance of conditions precedent and concurrent, § 1498. Performance, offer of, ability essential, § 1495. Performance, offer of, conditional, § 1494 Performance, offer of, creditor's retention of thing he refuses to accept, § 1505. Performance, offer of, effect on accessories, § 1504. Performance, offer of. extinguishes, § 1485. Performance, offer of, objections to, § 1501. Performance, offer of, partial, § 1486. Performance, offer of, stops interest, § 1504. Performance, offer of, to be in good faith, § 1493. Performance, offer of, to be made by whom, § 1487. Performance, offer of, to be made when, §§ 1490, 149J, OBLIGATION— OFFE31. Wl Performance, offer of, to be made where, §§ 1488, 1499. Performance, offer of, to be made where amd to whom, § 1488. Performance, offer of, waiver of objections to, § 15U1. Performance, offer of, where no time fixed, §S 1490 1491. Performance, offer of, willingness essential, § 1495. Performance, offer of: See Offer of Performance. Performance, partial, effect of, § 1477. Performance, part, in satisfaction, § 1524. Performance prevented by creditor, § 1512. Performance prevented, ratable proportion of consider- ation, § 1514. Performance, production of thing to be delivered not necessary, § 1496. Performance, refusal to accept offer of, § 1515. Performance, thing offered to be kept, how, by obligor, § 1503. Performance, thing offered io be kept separate, § 1497. Performance, title to thing offered, § 1502. Performance to one joint creditor, effect of, § 1475. Property, is, § 1458. Receipt, right to require, § 1499. Refusal to accept offer of performance, § 1511, Release extinguishes, § 1541. Release, general, extent of, § 1542. Release of joint debtor's, § 1543. Satisfaction defined, § 1523. Satisfaction, part performance in, § 1524. Statute of frauds, in general, § 1624. There may be ownership of ohli^ations, § 655.^ Transfer of burden of, § 1457. Transfer of non-negotiable instrument, § 1459. Transfer of right, § 1458. Transfer of rights arising out of, § 1458. Unlawful conditions, void, § 1441. Waiver of objections to offer of performance, § 1501. Warranty on sale of written instrument, § 1774. See Contracts. OCCUPANCY, titie by, §§ 1000, 1006. Title, when acquired by, § 1007. OFFER, absolute, must be, § 1585. Acceptance, how made, § 1582. Of guaranty, not binding, § 2795, Revoked, how, § 1587. Revoked, when, § 1586. What deemed, § 1584. Civil Code-d&-«2 &t| PRINCIPAI^PROPERTY. Factor must follow directions of, § 2027. Incident passes by transfer, §§ 1084, 3540. In guaranty: See Guaranty. PRINCIPAL AND AGENT: See Agency. PRINCIPAL AND SURETY: See Suretyship. PRINTING, included in word "writing," § 14. PRIORITY, bottomry or respondentia liens, §§ 2897, 3029 Different employments, § 1988. Liens according to date, § 2897. Lien upon single fund over lien upon several, § 2899. Marshaling of assets, § 2899. Mortgage for price of land has, § 2898. Of record priority of right, § 1214. Surety's property over principal's, § 2850. PRIVILEGED COMMUNICATION: See Libel; Slander. Enumeration of, § 47. PRODUCTS OF THE MIND, property in, §§ 980-985. PROFITS by partner belong to firm, when, § 2435. Insurable interest in, § 2664. Loss of, under insurance, when presumed, § 2740. Measure of indemnity for loss of, under insurance, § 2738. Renunciation of future partnership exonerates part- ner, § 2417. Special partner may draw share of, § 2494. PROHIBITION, when may be granted, § 8366. PROMISE OF MARRIAGE, damages for breach of, § 3319. When neither bound, § 62. PROMISSORY NOTE: See Negotiable Instruments. PROPAGATION, lien of owners of animals used for, § 3062. PROPERTY, absolute ownership, § 679. Accession to: See Accession. Accumulations, §§ 722-733. Acquisition, modes of, § 1000. Alien may take, hold, and dispose of, § 671. Alienation, future interest which suspends power of, void, § 716. Alienation may be suspended how long, § 715. Alienation, restraint on, void, § 715. Alternative future interests, § 696. Appurtenances are .what, § 662. Chattel interests are what, § 765. PROPEIRTT. fZe Classes of, § 657. Common, interests In, § 682. Common, interest in, defined, § 685. Common, what interests are in, § 686. Community, §§ 682, 686. Community, defined, §§ 164, 687. Community, resorting to, for alimony, § 141. Community: See Divorce; Husband and Wife. Conditions are precedent and subsequent, § 708. Conditions precedent, void when, § 709. See Conditions. Confusion of goods, §§ 1025-1033. Contingent interest defined, § 695. Corporation may acquire, § 360. Defined, §§ 14, 654. Divorce, disposition of, on,. §§ 146-148. Enjoyment, fixing time of, § 707. Fee, owner in, surface and everything above and be- low belongs to, § 829. Fixtures, § 1013. Fixtures: See Fixtures. Found property, claimant to prove, § 1866. Future estates, qualities of, § 699. Future interests are vested or contingent, § 693. Future interests defeated how, §§ 739, 740. Future Interest defined, § 690. Future interests in the alternative, § 696. Future interest not defeated by what, §§ 741, 742. Future interests, two or more in alternative, § 696. Future interest, what not void, § 697. Future interests, what only recognized, § 703. Goodwill, defined, § 992. Goodwill, in, § 655. Goodwill transferable, § 993. Husband and wife, §§ 143, 158, 161, 177. Husband's debts, wife's not liable for, § 171. Husband's support, when liable for, § 176. Husband's when liable for alimony, § 141. Husband's, when not liable for wife's debts, § 170. Includes real and personal property, § 14. Income, accumulation of, §§ 722-733. Income defined, § 748. Increase of, ownership of, § 732. Interest, time of creating, § 749. Interests as to time of enjoyment, § 688. Islands, ownership of, §§ 1016-1018. PROPERTY. Inventions, rights in, §§ 980-985. Joint interest defined, § 682. Joint interests, § 682. Letters, to whom belong, § 985. Limited interest defined, § 692. Literary property §§ 980-985. See Literary Property. May exist in what things, § 655. Mere possibility is not an interest, § 700. Occupancy, title by, § 1006. Owner, all property has, § 669. Ownership, absolute or qualified, § 678. Ownership, absolute when, § 679. Ownership by several, classes of, § 682. Ownership defined, § 654. Ownership is qualified when, § 680. Ownership of interests, as to time, § 688. Ownership, several, defined, § 681. Ownership, termination of, §§ 739-742. Ownership, time of creation, § 749. Parent's support, when liable for, § 201. Partnership interest defined, § 684. Perpetual interest defined, § 691. Perpetual interest, duration of, § 691. Personalty: See Personal Property. Posthumous children, §§ 698, 739. Prescription, § 1007. Present interest defined, § 689. Private writings, to whom belong, § 985. Products of the mind, §§ 980-985. Property, modes in which acquired, § 1000. Qualified or absolute, ownership is, § 678. Qualified ownership, § 680. Realty: See Real Property. Restoration of thing wrongfully acquired, §§ 1712, 1713. Restraint upon alienation void, § 711. Right arising out of obligation Is, § 1458. Separate, of spouses, §§ 162, 163. Several ownership, §§ 681, 682. Several ownership, classes of, § 682. Several ownership defined, § 681. State is owner of property which has no other owner, § 670. State may hold, as private proprietor, § 669. State owns what, § 670. Termination of ownership, §§ 739-742. Termination of tenancy at will, notice, §§ 789, 790. Time of enjoyment, interest as to classified, § 688. PROPKRTT— PUBLICATION. 181 Thne of creating ownership, § 749. Title deeds, § 994. Trademark, in, §§ G55, 991. Transfer of: See Transfer. Vested future interest defined, § 694. What may exist in, § 655. Who may own, § 671. Wife may dispose of, § 162. ^ Writings, property in, §§ 980-985. See Personal Property; Real Property. PROPOSAL. Acceptance must be unqualified, § 1585. Qualified acceptance, § 1585. Revoo^tion, §§ 1586, 1587. To contract, acceptance, §§ 1582, 1585. What is deemed acceptance, § 1584. PROTECTION against restraint and injury, § 43. To personal relations, § 49. What force used in seeking, § 50. PROTECTIVE ASSOCIATIONS, act providing for forma- tion of, p. 689. Act validating acknowledgments by, p. 665. PROTEST of bills of exchange, §§ 3225-3232. PROVISIONS, implied warranty on sale of, § 1775. PROXY, voting by, at corporate meetings, § 312. PUBLIC contracts interpreted against* private party, §§ 1069, 1654. Deceit upon, § 1711. Grant by, interpreted in favor of grantor, § 1069. Grant interpreted against grantee, § 1069. Nuisance: See Nuisance. PUBLIC ADMINISTRATOR to represent insane spouse on petition to sell or mortgage homestead, when, 1269b. Fee for representing insane spouse on petition to sell or mortgage homestead, § 1269b. PUBLICATION, assessment, Tiotice of, § 336. Delinquent assessment, § 339. Libel by unprivileged, § 45. Partners, of names of, § 2466. Partnership, certificate of special, § 2483, Partnership, change of name of, § 2469. Partnership, notice of dissolution, § 2453. Privileged, defined, § 47. Products of mind, § 983. Sj>ecial partnership, afiidavit of, § 2484, «2 FUBUC MEETINGS— RAILROAD CORPORATIONS. Special partnership, notice of dissolution of, § 2509. PUBLIC MEETINGS, reports of, are privileged communi- cations, §§ 47, 48. PUBLIC POLICY, contracts against, §§ 1667, 1668, PUFFING AT AUCTION, § 1797. PURCHASE MONEY, lien for, § 3046. Priority of mortgage for, § 2898. QUALITY, damages for breach of warranty of, § 3313. Domestic provisions, § 1775. General, § 1773. Goods inaccessible to buyer, § 1771. ^ Warranty by manufacturer, §§ 1768, 1770. Warranty of goods sold by sample, § 1766. Warranty on executory sale, § 1767. QUANTITY, implied warranty as to, § 1773. QUESTIONS OF LAW AND FACT. Fraud, a question of fact, § 3442. QUIET ENJOYMENT, covenants for, § 1463. Covenant runs with land, § 1463. Damages for breach of covenant of, § 3304, Executory contract of sale, § 1733. Implied in hiring of personalty, §§ 1927, 1955. QUORUM. Board of directors, quorum of, § 308. QUO WARRAr^O, § 358. RAILROAD COMMISSIONERS. Operation of raih-oads, power in relation to, § 468. Rates, copy of upon whom may be served, § 489. Rates fixed by, publication of, § 489. Rates, fixing of, serving copy of, § 489. Rates, when take effect, § 489. See Railroad Corporations. RAILROAD CORPORATIONS: See Carriers; Street Railway Corporations. Accommodations for passengers, duty to provide, § 481. Affidavit to subscription of stock and payment of ten per cent, § 295. Amount of capital stock to be subscribed, § 293. Animals, injuries to, liability for, § 485. Animals, injuries to or by, where owner paid to main- tain fence, § 485. Annual report of, to state, what, § 480. Annual report to be verified, § 480. RAILROAD CORPORATIONS. 983 Articles to state what facts, § 291. Assessment of stock, § 455. Assessments on stock, limitation of, § S22. Badge, officers to wear, § 488. Baggage: See Carriers. Baggage, checks to be affixed to, § 479. Baggage or freight train, passenger on, § 483. Bell, penalty for failure to ring, § 486. Bell, sounding, duty and liability as to, § 486. Bonds, may issue, § 456. Bonds of, interest, § 456. Bonds of, limitation of amount, § 456. Bonds, power of holder to convert into stock, § 457. Bonds, sinking fund to pay, § 457. Borrow money, power to, § 456. Brakes on cars, p. 753, Stats. Buildings, may erect necessary, § 465. Capital stock to be fixed, § 458.' Certificate of payment of fixed capital stock. § 459. Code provisions apply to all companies, § 493. Commissioners of transportation, act relating to, p. 766. Commissioners, railroad, act organizing and defining powers of broad, p. 766. Completion of road, act authorizing, p. 763. Compressed air, right of steam railroads to use, § 465a, Connect roads, power to, § 465. Consent of municipalities to use of streets and waters, § 470. Consolidation, articles of and of incorporation, § 473. Consolidation, effect of on prior contracts, § 473. Consolidation, manner of, § 473. Consolidation of, § 473. Consolidation of, publication of notice, and filing copy, § 473. Construction, amount of road to be constructed each year, § 468. Construction of road, forfeiture of franchise, § 468. Construction of road, time to begin, § io8. Contracts for right to use other roads, may execute, § 473a. Crossings and intersections, §§ 469, 472, Crossings, condemning land for, § 472. Crossings, mode of making, §§ 469, 472. Crossings, other land for, how acquired, § 472. Crossings, duty as to, § 513. Cross roads, power to, § 465. Debt, power of holder to convert into stock, § 457. 984 RAJXJEIOAD CORPORATIONS, Deed of trust by, § 456. Deed of trust by, trustee in, § 456. Directors, election of, § 454. Electricity, right of steam railroads to use, § 465a, p. 722. Stats. Electricity, statute authorizing steam roads to use, § 465a, note; p. 765, Stats. Elevated railroad, franchise for, power to grant, § 493. Fences, duty and liability respecting, § 485. Fencing track, § 485. Fenders on cars, p. 753, Stats. Foreign act relating to rights of, § 405, note, p. 764, Stats. Foreign rights, powers and liabilities, § 407. Forfeiture for want of operation, p. 765, Stats. Forfeiture of franchise for want of construction, § 468. Forfeiture of franchise for want of operation, § 468, Forfeiture of franchise for want of operation, rever- sion of lands, § 468. F1*anchiBe, forfeiture for want of operation, § 468. Franchise, forfeiture of for want of construction, § 468. Franchise, reversion of land on forfeiture for want ol operation, § 468. Franchise, forfeiture of, § 468. Franchise, sale of to another corporation, § 494. Franchise and property of roads in competition, caji- not purchase, §§ 465, 494, Franchise and property of roads not in competition, may purchase, §§ 465, 494. Franchise, statute limiting time within which may be granted, p. 773. Franchise, statutes relating to sale of and governing conditions of sale, pp. 753-762. Franchise, statute validating ordinances granting, p. 763. Freights, power to regulate, § 465. Gravel, may purchase, § 465. Highways, duty €is to, § 513. Injuries to animals on track, liability for, § 485. Lease of other railroads by, power of, § 473a. Line of, may change, § 467. Location of route, power to change, § 467. Mail carriers to ride free on street-cars, p. 773, Stats. Management and operation of railroads above certain elevations, p. 765, Stats. Map and profile to be filed, § 466. May borrow money, § 456. May carry freight and persons, § 465. RAILJIOAD CORPORATIONS. 985 May lay out road, how wide, § 465. May purchase land, timber, •gravel, etc., § 465. May regulate force and speed, § 465. May regulate time and freights, § 465. May sell property and franchise to another corporation, § 494. May sell to another corporation, § 494. Mortgage by, § 456. Officers to wear badge, § 488. Officers without badge, no authority, § 488. Operation, act compelling by railroads, § 468, note. Operation, forfeiture for want of, § 468. Operation, full, what constitutes, § 468. Operation, power of railroad commissioners as to, § 468. Operation, reversion of land on forfeiture for want of, § 468. Operation, road to be kept in, § 468. Operation, what excuses, § 468. Operation where road constructed above certain eleva- tion, § 468. Operation, where road constructed above certain eleva- tion, act relating to, § 468, note. Operation of, act compelling, p. 765. Operation of, forfeiture for want of, p. 765, Stats. Operation of railroads above certain elevations, p. 765, Stats. Passengers: See Passenger Carriers. Passengers, accommodations for, duty to provide, § 481. Passengers, -duty to receive and transport, § 481. Powers, enumeration of, § 465. Property, refusal to carn^ or deliver, § 482. Rails to be used, § 491. Rates and charges, § 489. Rates and charges, posting, § 489. Rates, fixing by railroad commissioners, copy of, upon whom served, § 489. Rates, fixed by railroad commissioners, posting of, § 489. Rates fixed by railroad commissioners, when take ef- fect, § 489. Rates, railroad commissioners fixing to serve copy of, 8 489. Rates lower to meet competition not to he raised with- out consent, § 494. Rates not to be raised without consent of authorities, § 494. Rates, penalty for raising without consent, power and tiuty of attorney general, § 494. 986 RAILROAD CORPORATIONS. Rates, raising without consent, penalty for, § 494. Rates and charges, penalty for overcharge, § 489. Real estate, may acquire, § 465. Right of way over state lands, grant of, §§ 474, 475. Right of way, selection of, how proved and certified. § 478. Running of cars, duty as to, § 481. Sale of property and franchise to another corporation, § 494. Sale of property to another railroad, raising rates, penalty, § 494. Sale to another corporation, effect of, § 494. Sale to another corporation, limitations on, § 494. Selection of. land or right of way, how proved and cer- tified, § 478. Sinking fund to pay bonds, § 457. . Speed, may regulate, § 465. Starting of car, duty as to, § 481. State lands granted for, not to embrace town lots, § 475. State lands granted for, revert when, § 477. State lantis granted for, right of way, § 474. Steam whistle, penalty for failure to sound, § 486. Steam whistle, sounding on approaching: crossings, § 486. Stock not transferable until previous calls or install- ments paid, § 455. Stock, right to convert bonds or -debts into, § 457. Stock, transfer before twenty per cent paid and cer- tificate issued, § 455. Stocks, bonds and securities of roads in competition, cannot purchase, § 465. Stocks, bonds and securities of roatis not in competi- tion, right to purchase, § 465. Streets and alleys, consent of municipalities to use of, § 470. Street: See Street Railways. Subscription to stock, amount necessary as prerequi- site to filing articles, §§ 293, 294. Survey road, power to, § 465. Survey of, map of to be filed in each county, § 513. Survey of road, approval of, rights on, § 513. Survey of road, supervisors to approve or reject, § 513. Ten per cent of amount subscribed to be paid in, § 294. Tickets: See Passenger Carriers. Timber, may purchase, § 465. Time for running trains, § 481. Time for starting, delay in, penalty for, § 2170. RAILROAD CORPORATIONS— REAL, PROPERTY. 98/ Time for starting, schedule establishing and publish- ing, § 2170. Transfer of stock, § 455. Underground road, franchise for, power to grant, § 493. Use of other roads, right of, § 473a. Use of stre^^ and water of municipality, consent of, § 470. Width of road, §§ 465, 513. Where may construct road, § 465. Wood, stone and earth may be taken from state lands, § 476. RANSOM of ship and cargo, § 2380. RATE OF INTEREST, annual, § 1916. Bottomry, § 3022. Judgment, on, § 1920. • Legal, §§ 1917, 1918. Respondentia, § 3039. See Interest RATIFICATION of acts of agent, § 2307. Of contract void for want of consent, § 1588. Of voidable contract, §§ 1588, 2310. Partial, when total, § 2311. Prejudice of third person forbidden, § 2313, Rescission of, § 2314. When void, § 2312. REAL PROPERTY: See Property. Accessions: See Accession. Accumulations, §§ 722-733. Acquisition, modes of, § lOOO. Action for possession, where right of re-entry, § 793. Adverse possession, § 1007. Agreement to convey, statute of frau-ds, § 174L Alienation, suspension of: See Alienaton. Appointment, effect of power of, § 781. Appurtenances are what, § 662. Assignment for creditors, § S466. Assignee of lessee, liability of, § 822. Benevolent corporation, right to own, §§ 595-59S. Boundaries by road or street, § 831. Boundaries by water, § 830. Broker, statute of frauds, § 1624. Chattels real defined,. § 765. Chattels real, suspending alienation of, § 770, Community property: See Property. Conditional fees abolished, § 763. Conditional Umitation, § 778, 988 RKJlLj property. Conditions precedent and subsequent, §§ 708-711. Conditions precedent and subsequent, grant on, §§ 1109, 1110. Confxict of laws, § 755. Consists of what, § 658. Contingent remainder: See Remainders. Conveyance, how only can be transferred, § 109L Conveyance of: See Conveyance. Corporation may acquire, and how much, § 360. Covenant: See Covenants. Damages for wrongful occupation, § 3334. Deeds: See Conveyance. Devisee's right to recover rents, etc, § 821. Distribution of: See Succession. Easements: See Easements. • Ejectment, notice not necessary before, § 793. Escrow, delivery in, § 1057. Estates at will are chattel Interests, § 765. Estates enumerated, §§ 701, 761. Estates for life, limitation of successive, § 774. Estate for life of third person a freehold, § 766. Estates for life, remainder of, § 777. Estate in fee defined, § 762. Estates of inheritance, § 762. Estates tail abolished, § 763. Estate, time of creating, § 749. Fee, defined, § 762. Fee, words of inheritance not necessary to transfer of, § 1072. Fence, partition, duty to maintain, § 841. Fixtures: See Fixtures. Freeholds are what, § 765. Freehold, estate for life of third person is, § 766. Future estates created how, § 773. Future estate to commence in futuro, § 767. Future estates, qualities, § 699. Future interests defeated when, §§ 739, 740. Future interests not defeated when, §§ 741, 742. Future interests, what not recognized, § 703. Future interests: See Future Estate; Future Interests. Heirs and issue, interpretation of, § 1071. Heirs of tenant for life, when to take as purchasers, § 779. Highway as boundary, § 831. Includes what, §§ 14, 658. Income, accumulation of, §§ 722-733, Incumbrance includes what, § 1114, RllAL PROPERTY. iH Infant's contracts respecting, § S3. Instrument affecting title, where recorded, § 1218. Insurance companies may purchase and hold, § 415. Interests in, denominated estates, § 701. Interests in, generally, § 701. Interest, time of creating, § 749. Interests in: See Property. Islands, to whom belong, §§ 1016-1018. Judgment for possession or title, § 3375. Kinds of, § 658. Land is what, § 659. Lateral support, excavations, § 832. Laws gOTerning, § 755. Lessees and their assignees, rights of, § 823. Lessee's assignee, liability of, § 822. Limitation of successive estates for life, § 774. Minor's contract respecting, § 33. Monuments, duty of coterminous owners to maintain, § 840. Obligations of coterminous owners, § 841, Occupancy, title by, § 1006. Owner's rights above or beneath, § 829. Perpetuities, §§ 715, 716. Posthumous children, §§ 739, 1403. Power of appointment, effect of, § 781, Powers, execution of, § 860. Prescription, § 1007. Profits liable to creditors, though trust to receive same, § 859. Purchasers, heirs of life tenant to take as, when, § 779. Recording instruments affecting: See Recording. Re-entry, transfer of right to, § 1046. Re-entry, when and how to be made, §§ 791, 793. Remainders: See Remainders. Rent dependent on life recoverable after death, § 825. Rents, grant of, § 1111. Rents liable to creditors, though trust to receive same, § 859. Rents, right of grantee to recover, § 821. Restraints upon alienation, void, § 711. Reversions: See Reversions. Right of way, § 802. Rule in Shelley's case, § 779. Sale of, agreement for, §§ 1731-1734, Servitudes: See Easements. Shelley's case, § 779. d90 RRATi PBOPEaRTY— HiiiUKi V KK . Social corporation, right to hold, §§ 595-598. Specific performance of contract to convey, § 1741. Specific performance: See Specific Performance. Statute of frauds, agreement to convey, § 1741. Street as boundary, § 831. Successive estates, for life, limitation of, § 774. Tenancy at will, termination of, notice, '§§ 789 790. Tenant at will, rights of, §§ 819, 820. Tenant for life, duty as to buildings, fences, etc., § 840. Tenant for life, rights of, § 818. Tenant for life, taxes and charges, duty to pay, § 840. Tenant for years, rights of, §§ 819, 820. Termination of ownership, in general, §§ 739-742. Termination of tenancy at will, notice, §§ 789, 790. Timber, cutting or injuring, damages for, § 3346. Time of creating interest, § 749. Time of enjoyment, fixing, § 707. Title aeeds, § 994. Transfer of: See Conveyance. Trees on the line, § 834. Trees wholly on land of one, § 833. Trusts: See Trusts. Trusts and uses in relation to, §§ 874-871, Trust to be written, § 852. Uses: See Trusts. Uses and trusts in relation to, §§ 847-871. Warranties, liability for, § 1115. Warranties, lienal and collateral abolished, § 1115. Waste, grantee's right to recover for, § 821. See Waste. Waters as boundary, § 830. What included in, § 14. What law governs, § 755. REASON being the same, rule the same, § 3511. Ceasing, rule should cease, § 3510. RECEIPT, insurance premium, of, effect of, § 2598. Right to demand, § 1499. Warehouse, act in relation to, p. 778, Stats. Wharfingers, act in relation to, p. 778. RECEIVER, alimony to enforce, § 140. Appointing where alimony or maintenance allowed, § 140. Statute authorizing corporation to act as, p. 702. RDOONVBYANCB— RE CORDING. Wl RECONVEYANCE by grantee on noperformance of con- ditions subsequent, § 1109. Cancellation or redelivery of grant, not, § 1058. RECORDER, acknowledgments, may take, § 1181. City, may solemnize marriage, § 70. RECORDING, acknowledgment of instrument executed by corporation, § 1161. Acknowledgment, what instruments cannot be re- corded without, § 1161. Acknowledgment, what instruments may be recorded without, §§ 1159, 1160. .Affidavits of work and notices respecting mining claims, § 1159. Another county, recording copy in, and its effect, § 1213. Assignment for creditors, §§ 3458, 3459. Bona fide purchaser, rights against unrecorded in- strument, § 1107. Books of record, § 1171. By-laws of corporation, § 304. Certificate of place where summoTic? may be served, acknowledgment not necessary, § 1163. Certificate of place where summons may be served, change of residence, fixing affidavit, § 1163. Certificate of place where summons may be served, fee for recording, § 1163. Certificates of places where summons may be served, indexing, § 1163. Certified copy of recorded conveyance recorded in another county, as notice, § 1213. Certified copies of record as evidence, § 1207. Chattel mortgage, § 2957. Complete when, § 1170. Conveyance, copy of, in another county, § 1213. Conveyance defined, § 1215. Conveyance recorded before code, § 1205, 1206. Conveyance void unless recorded, when, § 1214. Conveyance, where and to whom notice, § 1213. Conveyance within meaning of recording act, § 1215. Copy in another county, § 1213. Corporation, acknowledgment of instrument recorded by, § 1161. Corporation, records of, §§ 377, 378. County in which instruments to be recorded, §§ 1169, 2480. Curative act, act curing defectively executed instru- ments, 8 1207. »M RECORDING. Declarations of marriage, § 79^. Deed absolute intended as mortgage, 8 2950. Deeds and morgages separately, § 1171. Discharge of mortgage, § 2940. Duties of recorder, § 1172. Evidence, certified copies of record as, § 1207. Fees of recorder to be indorsed on instrument, § 1165. Grants and mortgages to be recorded in separate books, § 1171. Homestead declaration, where recorded, § 1264. Homesteaa selection, §§ 1262, 1269. Instruments, acknowledged before whom, § 1161. Instruments proven and certified, § 1162. Instruments which may be recorded, § 1158. Inventory of wife's property and its effect, §§ 165, 166. Judgments may be recorded, § 1158. Judgments may be recorded without acknowledg- ment, when, § 1159. Lease for not more than year, § 1214. Letters patent may be without acknowledgment, § 1160. Liens, § 1164. Lost letters patent, recording certified copy of, § 1160. Marriage certificate, § 74. Marriage declaration, § 77. Marriage settlement, §§ 179, 180. Marriage settlement and its effect, 5§ 179, 180. Mortgage, § 1164. Mortgages and grants to be recorded in separate books, § 1171. Mortgage in general, § 2952. Mortgage of ship, § 2958. Mortgages, recording of, § 2952. Notice, certified copy of recorded conveyance recorded in another county, § 1213. Notice, record of assignment of mortgage as, §§ 2934, 2935. Notice, record of instrument before as, §§ 1207, 1903. Notice, record of conveyance is, § 1218. Notice, copy of conveyances recorded in another county is, § 1213. Notice 01 appropriation of water, § 1421. Notice of location of mining claims, § 1159. Office, in what made, §§ 1169, 2480. Partnership, of certificate of, § 2480. Partnership, special, dissolution of, § 2509, RECORSING— REGISTRY. WH Power of attorney and revocation thereof, § 1216. Priority of, § 1214. Proof of instrument, action for, and effect of the judgment, §§ 1203, 1204. Recording instruments affecting title in different coun- ties, § 1218. Trust, transfer in, § 1164. Unrecorded Instrument, effect of against bona fide purchasers, § 1214. Unrecorded instrument, effect of as against judgments, § 1214. Unrecorded Instrument good as to those who have notice, § 1217. Unrecorded instrument good between parties, § 1217. Vessels, transfer of, recording governed by federal laws, § 1173. Want of, its effect, § 1217. What law governs, §§ 1205, 1206. What Instruments may be recorded, §§ 1158, 1163. When instrument deemed recorded, § 1170. Where, in what county, §§ 1169, 2480. Wine sale, § 3440. RECRIMINATION defeats divorce, § 111. RfiDE LIVERY of grant does not retransfer, § 1058. REDEMPTION, contract in restraint of, void, § 2889. Foreclosure of right of, § 2931. Foreclosure of right to redeem pledge, § 8011. Franchise, of, § 392. Franchise, of, from execution sale, § 392. Lien, from, §§ 2903-2905. Releasing right of, in assignment for creditors, § 8468. See Liens. RE-ENTRY, transfer of right to, § 1046. When and how to be made, § 791. REFEREE in divorce cases, § 130. REFORMATION, contract may be reformed when, § 3399. Fraud, reformation of contract for, § 3399. Mistake, reformation of contract for, § 3399. Presumption as to intent of parties, § 3400. Principles of, § 3401. Specific performance of reformed contract, § 8402. What inquiry made by court, § 3401. REGISTRATION: See Recording. REGISTRY, ships, of. § 966. Civil Code— « 994 REINSURANCE, RELIGIOUS, ETC., CORPORATIONS. Directors, term of office of, § 290. Elections, no cumulative voting unless by-laws pro- vide, § 307. Fees, qualification, etc., of members, § 599. Formed how, § 593. Incorporation of religious societies, §§ 603, 604. Indebtedness of, § 599. Insurance laws, fraternal societies exempt from, § 451. Insurance: See Insurance; Insurance Corporation. Limitation on right to hold land, §§ 595, 596, 603, 604. May hold real estate, §§ 595, 596. May sell or mortgage real estate, how, § 598. Members admitted after incorporation, § 600. Membership in, how only transferred, § 601. Mortgage of property, § 598. Officers, meetings, etc, § 599. Orphan asylums, § 595. Orphan asylum may hold how much property, § 595. Power to hold property, § 595. Property of, §§ 603, 604. Real estate, limit upon amount that can be held by. § 595. Records to be kept by, § 378. Records to be open to inspection, § 378. Religious society, incorporation of, §§ 603, 604. Rules and regulations of, § 599. Rules of religious denominations requiring adminis- tration of temporalities, § 602. Surplus real estate to be sold, § 596. RELIGIOUS SOCIETY, incorporation of, §§ 603, 604. REMAINDERS, conditional limitation, remainder when deemed to be, § 778. Construction as to time of taking effect, § 780, Contingency upon, § 778. Contingent estate, created how, § 773. Contingent on prior remainder in fee, § 772, Contingent, in fee, § 772. Contingent, on term of years, § 776. Contingent remainder in fee, § 772. Contingent remainder on term of years, § 776. Created, how, § 773 Death of devisee before testator, effect on, § 1344. Defined, § 769. Estate for life, remainder may be limited thereon, § 773. Fee, remainder in, limited upon fee tail, effect of, § 764. For life upon term of years must be to one in esse, i 111. RELIGIOUS, ETC., CORPORATIONS— REMAINDERS. W6 REINSURANCE defined, § 2646. Wliat communicated on, § 2647. Presumed against liability, § 2648. Original insured no interest in, § 2649. RELATION of right to water, § 1418. RELATIONSHIP, decrees, how computed, §§ 1389-1393. Half blood, right to succeed, § 1394. Husband and wife cannot impair legal, § 159. Succession though illegitimate, § 1388. RELATIVES, alienage of, right of succession, § 1404. Legacies to, chargeable with debt, § 1361. Of half blood succeed alike with whole blood, § 1394. Protect child from parental abuse, § 203. Right of defense of, §§ 43, 50. RELEASE, creditor, by, obligation extinguished by, § 1541. Debtor, of, by substitution, § 1531. General, effect on claims creditor did not know of, § 1542. General, extent of, § 1542. Guardian, release to by ward, § 256. Joint debtors, of, § 1543. Obligation extinguished by, § 1541. RELIEF: See Damages. In general, § 3274. Preventive relief: See Preventive Reliet Specific: See Specific Reliet RELIGIOUS, SOCIAL, AND BENEVOLENT CORPORA- TIONS, articles to set forth what, §§ 594, 602, 604. By-laws, §§ 599, 603, 604. Certificate of incori)oration, § 603. Cemeteries, § 595. See Cemetery Corporations. Corporations sole, articles of incorporation, § 602. Corporations sole, electing to continue existence under code, § 602. Corporations sole, limit on land held by, § 602. Corporations sole, may become when, § 602. Corporations sole, powers of, § 602. Corporations sole, proof of appointment or election of bishop, priest, etc., § 602. Corporation sole, superior judge to have access to books, § 602. Directors' annual report, § 597. Directors, election and number of, §§ 290, 593. Directors, election of, §§ 603, 604. U^ REMAINDERS— RElrt*. Future and contingent estates, how created, § 773. Grant of, § 1111. Grant of effectual without attornment of tenant, § 1111. **Heirs" and *'issue," meaning of, § 1071. In fee upon fee tail, § 764. Lapse of limited interest, effect on remainderman, § 1344. May be limited without intervention of precedent es- tate, § 767. May be limited on termination by any means of pre- cedent estate, § 767. Of estates for life, § 777. Owner may sue fo injury to inheritance, § 826. Shelley's case, rule in abolished, § 779. Successive estates for life cannot be limited except to persons in being, § 774. Successive estates for life upon, § 775. Term of years, contingent remainder on, § 776. Term of years may be created expectant on, § 773. Upon contingency, § 778. Upon an estate for life created in a term of years, § 773. Upon estate for life in a term of years must be for residue, § 775. Upon successive estates for life some of which are void, § 774. Upon estates for life or term of years, § 775. Valid, when, § 764. Vested or contingent may be created on term of years, § 773. What title vests under, § 779. See Future Interests. RENT, acceptance, when renewal of lease, § 1945. Covenant for payment runs with land, § 1463. Dependent on life, recoverable after death, § 825. Forfeiture by letting room in parts, § 1950. Grant of, § 1111. Grantee's right to recover for, § 821. Life, under lease for, § 824. Payment to grantor, binding on grantee, § 1111, Payable, when, § 1947. Remedies by assignees, §§ 821, 822, 823. Servitude, right of taking as, § 802. Term of hiring indicateti by, § 1944. Treble, §§ 3344, 3345. Trust, express, to receive, § 857. See Landlord and Tenant REPAIR— RESCISSION. »» REPAIR, borrower, when to, § 1889. Coterminous owners to repair fence, § 841. Hirer of personal property, at expense of letter, § 1956. Hirer, when to, § 1929. Landlord, when to, § 1941. Lettee's obligations as to, § 1955. Letter of personal property, § 1955. Owner of estate for life to, § 840. Shipmaster, § 2376. Ship, owner for voyage to, §965. Tenant at expense of landlord, § 1942. Tenant for life to repair fence, § 840. REPEAL of former statutes, § 20. REPORT, appraisers of homestead, § 1252. OflEieial proeeedings, privileged, § 47. REPRESENTATION, inheritance by, § 1403. Inheritance by right of takes place, when, § 1403. RESCISSION, application of performance, rescission of, § 1479. Buyer, by, at auction for by-bidding, § 1797. Buyer, by, if seller refuses inspection, § 1785. Buyer, by, on breach of warranty, § 1786. Conditions of, § 1691. Consent not free, subject to, § 1566. Contract, of, in what cases allowed, § 1689. Contracts, of, when adjudged, § 3406. Diligence in, § 1691. Effected, how accomplished when not consented to, § 1691. Equity, party required to do, § 3408. Extinguishes contract, § 1688. Grounds for, §§ 1689, 3406. Infant, by, § 35. Insane persons, § 39. Insurance of, for concealment, §§ 2562, 2569. Insurance, of, for false representation, § 2580. Insurance, of, at what time may be executed, § 2853. Lunatic, by, § 39. Mistake, for, § 3407. Novation, of, § 1533. Of alteration of obli-gation does not restore guaranty, § 2821. Person not without understanding, § 39. Ratification of, § 2314. Requirements on adjudging, § 3408. Restoration of benefits, § 1G91. Risk, for alteration increasing, § 2753. 998 RESCISSION— REVERSION. Sale for nonpayment of price, § 1749. Stipulation, not barred, by, § 1690. Stoppage in transit is not, § 3080. Third person may enforce contract before, § 1559. Valuation, for fraudulent, § 2736. Warranty, for violation of, etc., § 2608. RESERVATIONS, interpreted in favor of grantor, § 1069. RESIDENCE: See Domicile. Guardian may fix, of ward, § 248. RESIDUE, of testator's estate, devise of, § 1332. Of testator's estate, bequest of, § 1333. Remainder on, § 775. RES JUDICATA, judgment annulling marriage, § 86, RESPONDENTIA defined, § 3036. Fraudulent conveyance, delivery, § 3440. Interest, rate of, § 3039. Is subject to law of liens, § 2877. Master, by, § 3038. Not affected by law of mortgages, § 2942. Owner's obligations to repay, § 3040. Owner of cargo, by, § 3037. Priority of lien, § 2897. See. Bottomry. RESTORATION, necessary on rescission of contract, § 1691. Of deposit, terminates duties of depositary, § 1847. Of thing found, § 1871. Of thing wrongfully obtained, §§ 1712, 1713. Lien extinguished by, § 2913. RESTRAINT, alienation, of, when void, §§ 711, 716. Marriage, of, when void, §§ 710, 1676. Protection from bodily, § 43. Redemption from lien, of right of, § 2889. RESTRAINT OF TRADE, contracts in, §§ 1673-1675. On sale of goodwill, § 1674. In partnership arrangements, § 1675. RETALIATORY CLAUSE. Foreign insurance corporation, § 453i. RETROACTIVE, code is not, § 3. . Code is not, as to wills, § 1375. Corporations, legislature may repeal or amend laws relating to, § 384. REVERSION, grant of, § 1111. Grant of effectual without attornment of tenant, § 1111. Of land granted to corporations, § 477. HEVBRSION— SALfi. m Estate in, defined, § 768. Owner may sue for injury to inheritance, § 826. Remedies of reversioner for rent, nonperformance, waste or forfeiture, § 821. Re-versioners, remedies of, § 826. REVISION OF CONTRACT, §§ 3399-3402. See Reformation of Contracts, REVOCATION: See Contract. Condonation, of, § 121. Consent to separation subject to, § 101. Gift in view of death, of, § 1151. Guaranty, of continuing, § 2815. Power of attorney, of, § 1216. Power of, when deemed executed, §§ 1229, 1230. Proposal to contract, of, § 1586. Trust, of, § 2280. See Wills. REWARD, finder of property entitled to what, § 1867. RIGHT OF WAY, in general, §§ 801, 802. Selection by railroad, § 478. Street railway, of, restrictions on, § 498. Telegraph corporations, of, § 536. RIGHT TO CONVEY, damages for breach of covenant of, § 3304. RIOT, deposit in case of, §§ 1815, 1816. RIVER: See Waters. ROAD: See Highways; Wagon Road Corporation. Boundary, road as, § 831. SAILOR: See Shipping. SALE: See Transfer. Agreement for, § 1726. Agreement for, what may be subject to, § 1730. Agreement to buy, definition of, § 1728. Agreement to sell, definition of, § 1727. Agreement to sell and buy, defined, § 1729. Auction, absolute rights of buyer, § 1796. Auction, auctioneer's memorandum, § 1798. Auction, bids by seller void, § 1796. Auction, by-bidding, § 1797. Auction, complete when, § 1793. Auction defined, § 1792. Auction, withdrawal of bid, § 1794. Auction, written conditions not alterable by parol, § 1795. ICyOO SALE. Baggage, of, by innkeeper for storage, § 1862, Bill of sale, § 1053. Bona fide purchaser, title of, § 1142. Breach of, damages for, §§ 3353-3355. Buyer acquires better title than seller, when, § 1142. Buyer's direction as to sending thing sold, § 1757. Buyer must take away thing, v/hen, § 1784. Cargo, master's power to sell, § 2379. Carrier's sale of perishables for freightage, § 2204. Complete, when, § 1140. Consignment: See Consignment; Factor. Consignee defined, § 2110. Consignor defined, § 2110. Damages for breach of agreement to buy, § 3311. Damages for breach of agreement to deliver, § 3309. Damages for breach of agreement to pay, § 3310. Damages for breach of agreement to sell, § 3308. Damages for breach of contract of, value estimated how, §§ 3353-3355. Damages for breach of warranty of quality, § 3313. Damages for breach of warranty of quality for special purpose, § 3314. Damages for breach of warranty of title, § 3312. Defined, § 1721. Definition of agreement to buy, § 1728. Delivery on demand, § 1753. Delivery, expense of transportation, § 1755. Delivery, notice of election as to, § 1756. Delivery, option as to, time for exercise of, § 1756. Delivery, place of, §§ 1754, 1755. Delivery, property to be put in condition for, § 1753. Delivery, seller a depositary before, § 1748, Delivery, void without, § 3440. Delivery within reasonable hours, § 1758. Deposits, of perishable, § 1837. Election as to delivery, notice of, § 1756. Exchange in general, §§ 1804-1807. Exchange, loan for, §§ 1902-1906. Executory contract of, title passes when, § 1141. Factor, by, for reimbursement, § 2027. Five days' notice of sale of stock in trade, § 3440. Form of contract, § 1739. Found thing, of, §§ 1869, 1870. Frauds, statute of, §§ 1624, 1739, 1740. Fraudulent: See Fraudulent Conveyance. Inspect goods, right to, § 1785. Uen extinguished by, § 2910. SALE. 10«>1 Lien of seller, § 3049. Manufacture, contract to, need not be written, § 1V40. Notice of sale of stock in trade, § 3440. Option as to delivery, time for exercise of, § 1756, Payment, failure of, remedies of seller, § 1749. Payment on delivery, § 1784. Perishable deposits, sale of, § 1837. Price, when to be paid, § 1784. Resale, when may be had, § 1749. Rescinding for nonpayment, § 1749. Rescission for breach of warranty, § 1786. Ship, master's power to sell, § 2378. Statute of frauds, §§ 1624, 1739, 1740. Stock for delinquent assessments, § 341. Stoppage in transit, effected how, § 3079. Stoppage in transit, effect of, § 3080. Stoppage in transit, insolvency of consignee la frb&l, § 3077. Stoppage in transit, transit ends when, § 3078. Stoppage in transit, when proper, § 3076. Storage property, of, § 1857. Title passes when, § 1140. Title passes when, in executory contract, § 1141. Title, when buyer acquires better than seller had, § 1142. To enforce lien on property, § 3052. • Transfer by, code provisions governing, § 1136. Transportation, risk and expense of, § 1755. Transportation, risks of, § 1757. Void if no delivery, § 3440. Warranty, agreement to sell does not imply, § 1765. Warranty, breach of, rights on, § 1786. Warranty by agent, § 2323. Warranty by manufacturer against latent defects, § 1769. Warranty defined, § 1763. Warranty, general, effect of, § 1778. Warranty, not implied in contract of , sale or agree- ment to sell, § 1764. Warranty of goodwill, § 1776. Warranty of inaccessible thing, § 1771. Warranty of marks, § 1773. Warranty of merchandise not existing, § 1768. Warranty of money on exchange, § 1804. Warranty of provisions for domestic use, § 1775. 1002 SALE-SAVINGS AND LOAN CORPORATION. Warranty of thing manufactured for special purpose, § 1770. Warranty of title, § 1765. Warranty of trademark, § 1772. * Warranty on sale of written instrument, § 1774. Warranty on judicial sale, § 1777. Warranty on sale by sample, § 1766. Warranty wlien seller knows buyer relies on his state- ments, etc., § 1767. What may be subject of, § 1722. Wines, of, delivery not necessary, § 3440. Wines, of, recording, § 3440. Wines, of, to be in writing, § 3440. Writing, contract when to be in, §§ 1624, 1739, 1740. See Transfer. SALVAGE, cost of payable through general average con- tribution, § 2079. In general, § 2079. Lien for, § 2079. Priority of lien for, § 3028. Seaman's abandonment of right to, void, § 2052, Seamen's wages, § 2060. Who entitled to, §§ 2079, 2725. SAMPLE, sales by, § 1766. SAN FRANCISCO, license tax on street cars in, § 508. SATISFACTION: See Accord and Satisfaction. Judgment against corporations, of, § 388. Judgment against homestead, of, 1241. Legacies and gifts, of, § 1367. Penalty for refusing, of mortgage, § 2941. Recorded mortgage, of, §§ 2938, 2941. What operates as, §§ 1523, 1524. SAVINGS AND LOAN CORPORATION: See Bank. Bonds, investment in, § 574. Capital, amount to be paid up, § 580. Capital, amount paid up, publication of, § 583a. Capital stock, all to be subscribed before certificate issued, v§ 580. Capital stock, amount of required, § 580. Capital stock, amount to be paid on, § 580. Capital stock, and assets security for depositors and stockholders, § 573. Capital stock, and rights and privileges thereof, § 572. Capital stock, certificates of ownership of, § 572. Certificate, what to appear before issuance of, § 580. SAVINGS AND IX)AN CORPORATION. 1003 Certificates of deposit, general, § 576. Certificates of deposit, payable to transferee or legal representativ-e, § 576. Certificates of deposit, general, § 576. Certificates of deposit, transferable, § 576. "Create debts" defined, § 579. "Create debts," what transactions do not, § 579. Depositors have priority over stockholders, § 573. Depositors, time and conditions of repayment, § 577. Directors, prohibitions on, § 578. Dividends, § 583. Dividends to be made only from surplus profits, § 573. Felony, officer making illegal loans or investments, guilty of, § 581. Infants may deposit and draw dividends, § 575. Infants may own stock, § 575. Liability, none to be contracted except for deposits, § 573. Limitation on powers of officers, § 578. Loans, duration of, § 571. Loans, how and to whom made, § 571. Loans, on what property may be made, § 571. Loans not to be made on mining shares or stocks, § 581. Loans not to exceed sixty per cent of market value of realty, § 581. Lot and building, may purchase, § 574. Married women may deposit and draw dividends, § 575. Married women may hold stock, § 575. May loan money, and on what terms, how, to whom, how long, § 571. Mining shares, money not to be loaned on, § 581. Office, what acts of officer vacates, § 578. Officers, prohibitions on, § 578. Priority of depositors over stockholders, § 573. Property of, how disposed of, § 574. Property, real estate to be sold within ten years, § 574. Property, restrictions on purchasing, § 574. Property which may not be owned by, § 574. Repayment to depositors, § 577. Reserve fund, disposition of, § 577. Reserve fund for payment of losses, § 577. Surplus and reserve fund, creation of, § 583. Surplus and reserve fund, conversion into capital stock, § 583. Surplus and reserve fund, restoration of after con- version into capital stock, § 583. ^004 SAVINGS. ETC., CORPORATION— SEAMEN. Transferable certificates of deposit, § 576. Unclaimed deposits, acts relating to, § 583b, note. Unclaimed deposits, penalty for failure to publish, § 583b. Unclaimed deposits, publishing statement of, § 583b. Unclaimed deposits, statement of, bank commissioners to incorporate in reports, § 583b. See Building and Loan Corporations. SCIENTIFIC CORPORATIONS. No cumulative voting unless by-laws provide, § 307. SEA, carrier not liable for damages caused by perils of, § 2197. Perils of, defined, § 2199. SEAL, aflixed how, § 1628. Distinction between sealed and unsealed contracts abolished, § 1629. When ofiicer must affix to acknowledgment, § 1193. SEAMEN are who, § 2049. Cannot ship goods, § 2064. Certificate of exertion to save cargo, etc., § 2059. Contract to abandon rights, void, § 2053. Driven from ship by cruelty, rights of, § 2057. Engaged and discharged, how, § 2050. Laws of Congress govern, § 2066. Lien, § 3056. Maintenance of, during sickness, § 2061. Master's power over seamen, § 2037. Not bound to go in unseaworthy vessel, § 2051. Nuncupative will of seaman, § 1289. Salvage, seaman's waiver to right in, void, § 2052. Seaworthiness: See Seaworthiness. Special contract with, validity, § 2053. Wages begin when, § 2055. Wages depend on freightage, § 2054. Wages, driven from ship by cruelty, right to, § 2057. Wages, dying during voyage, § 2062. Wages, forfeited by theft or tort, § 2063. Wages forfeited on justifiable discharge, § 2063. Wages in case of capture, § 2060. Wages not lost by agreement, § 2052. Wages of disabled seamen, § 2060. Wages on wrongful discharge, §§ 2057, 2060. Wages, priority of lien for, § 3028. Wages where voyage broken up, § 2056. Wages, whether lost by wreck, § 2058. SEARCHER OF RECORD, what property of, may be mort- gaged, § 2955. SEAWORTHINESS— SEMINARY. 1005 SEAWORTHINESS, at what time must exist, under insur- ance, § 2683. Defined, § 2682. Degrees of, during voyage, § 2685. For purpose of insuring cargo, § 2687. Implied warranty of, in insurance, § 2681. Seamen not bound to sail when reasonable doubt as to, § 2051. What required to constitute, § 2684. SECRETARY OF STATE, proceedings for continuance of corporations, § 287. Copy of decree changing name of corporation to be filed with, § 300a. Prerequisites before issuing certificate of incorpora- tion, § 295. When must issue certificate of incorporation, § 296. SECRET SOCIETIES not governed by laws relating to mu- tual assessment corporations, § 453p. Wife, daughter, sister or servant forbidden, § 49. SECURITY by assignee, for benefit of creditors, § 3467. By way of bottomry (see, also. Bottomry), § 3017. By way of lien (see, also, Lien), § 2872. By way of pledge: See Pledge. By way of respondentia (see also. Respondentia^ § 3036. Contracts of, when called bail, § 2780. For alimony, § 140. For obligation, does not prevent direct enforcement, § 2890. For third person, pledge as, § 2992. For what lien may be, § 2884. Held by creditor or cosurity, surety entitled to benefit of, § 2849. Held by surety, creditor entitled to benefit of, § 2854. Indorser having, not entitled to notice of dishonor, § 3157. Of mortgagee not to be impaired by person bound, § 2929. Power to sell in mortgage deemed part of, § 858. SECTION of code, meaning of, § 14. SEDUCTION, damages for, § 3340. In general, § 49. SEISIN, damages for breach of covenant of, § 8304. SELF-DEFENSE, right of, § 43. SEMINARY: See College. 1006 SEPARATE PROPERTY— SHIPPPINO. SEPARATE PROPERTY: See Husband and Wife. SEPARATION and intent to desert, not always coexist, § 100. By consent, not desertion, S 99. Consent to, revocable, § 101. Custody of child in case of, § 214. Domicile in case of separation of husband and wife, § 129. Husband and wife may agree to immediate, § 159. Mutual consent sufficient consideration, § 160. SERVICE, child's, parent may relinquish, § 211. Contract of, limited to two years, § 1980. Contract for, cannot be specifically enforced, § 8890. Employee in gratuitous duties, § 1975. Gratuitous, when relinquished, § 1976. Lien for, § 3051. Limited to two years, § 1980. Of carrier, other than carriage, § 2208. Of depositary, § 1839. Of legitimate unmarried minor, father entitled to, § 197. Of legitimate unmarried minor, mother entitled to, § 200 When apprentice may recover for, § 276. Without employment, compensation, § 2078. See Master and Servant; Wages. SERVITUDE: See Easement and Servitude. SETTLEMENT, marriage: See Marriage. SHEEP, killing by dogs, § 3341. See Animals. SHELLEY'S CASE, rule in, abolished, § 779. SHERIFF, lien of, for levying writ, § 3057. See Assignment for Creditors. SHIPMASTER: See Shipping. SHIPPING. Abandonment, duties and liabilities of master, § 2041. Abandonment, master, authority of, to abandon, § 2040. Abandonment of ship by master, §§ 2040, 2041. Abandonment terminates master's authority, § 2381. Appurtenances of, § 961. Averages, manager's powers to adjust, § 2388. Bottomry, insurable interest reduced by, § 2660. Cargo, master may engage, § 2376. Cargo, master's power to hypothecate, §§ 2375, 2377, 8038. SHIPPING. ym Cargo, master's power to sell, § 2379. Cargo, sacrifice for safety, § 2148. Cargo, sale of by master, owner's rights, § 2385. Cargo, sale of perishable or damaged, § 2377. i Cargo, ship's manager may purchase, § 2389. I Capture of ship, wages, § 2060. Charterer, insurable interest of, § 2665. Charter party defined, § 1959. Charter party, manager may enter into, § 2388. | Charter party, master may enter into, § 2376. Compensation of manager, § 2072. Collision from breach of rules, liability, § 971. Collision, loss apportioned how, § 973. | Collisions, rules for avoiding, § 970. | Congress, laws of govern officers and seamen, § 2066. I Co-owners, disagreement between, court to determine, I § 964. Delivery not necessary to validity of sale of ship, § 2440. Deviation from voyage, § 2117. Deviation from voyage, insurance, §§ 2692-2697. Domestic navigation defined, § 962. Domestic ship is what, § 963. Enrollment regulated by federal laws, § 966. Equipments of, § 961. Foreign navigation defined, § 962. Foreign ship is what, § 963. Freightage, insurable interest in, §§ 2661-2663. General average, §§ 2148-2155. General average, insurance, § 2744:. General average, contribution on property saved, § 2079. Hiring ship, § 1959. Hypothecate, power of master to, §§ 2375, 2377. Impressing private stores, § 2039. Insurance, manager, power as to, § 2389. Insurance: See Insurance, Interest on bottomry contract, § 3022. Jettison, §§ 2148-2155. Jurisdiction where several owners disagree, § 964. License governed by federal statutes, § 966. Liens against, priority of, § 3028. Lien of master. § 3055. Liens against, debts, when are, § 3060. Manager defined, § 2070. Manager's compensation, § 2072. Manager's duties, § 2071. Manager's general powers, §§ 2388, 2389. lOoS SHIPPING. Manager has not what powers, § 2389. Manager is general agent of ow^ners, § 2070. Manager, limitation on powers of, § 2389. Manager, powers as to insurance, § 2389. Manager presumed to have no compensation, § 2072. Manager, who is, § 2070. Managing owner of ship defined, § 2070. Master's abandonment of ship, §§ 2040, 2041. Master a general agent for owner, §§ 2373, 2375. Master, appointment of, § 2034. Master's authority as agent, law governing, § 2044. Master's authority in general, §§ 2375, 2377, 2379, 3038. Master's authority terminated by abandonment, § 2381. Master's authority to borrow money, § 2374. Master's authority to contract, in general, § 2376. Master, authority to make repairs, § 2376. Master, authority to ransom ship, § 2380. Master, care required of, § 2043. Master, duty of as to reshipment, § 2707. Master, duty of where voyage broken up, § 2707. Master holds during owner's pleasure, § 2034. Master's liability for acts of persons employed on ship, § 2383. Master's lien, § 3055. Master may be charterer, § 1959. Master may impress private stores, when, § 2039. Master may hypothecate freight money when, § 3021. Master may hypothecate ship, when, §§ 3019, 3020. Master may impress private stores, § 2039. Master may procure supplies, § 2376. Master not to trade on own account, § 2042. Master's personal liability on contracts, § 2382. Master's power over passengers, § 2038, Master's power to sell ship, § 2378. Master, respondentia by, § 3038. Master to be on board when, § 2035. Mate defined, § 2048. Mate cannot ship goods, § 2064. Mate engaged and discharged how, § 2050. Mate, lien of for wages, § 3056. Mate, maintenance of during sickness, § 206L Mate not bound to go in unseaworthy vessel, § 205L Mate, oflice of, on disability of master, § 2048. Mate, wages begin when, § 2055. Mate, wages where mate dies, § 2062. Mate, wrongfully discharged or driven from ship, rights of, § 2057. Meeting of sailing vessels, rules for passing, § 970. SHIPPING. iem Meeting of ships, breach of rules for, implies willful default, § 972. Meeting of ships, rules for passing, § 970. Meeting of steamers, rules for passing, § 970. Mortgage of, code sections not applicable to, § 2971. Mortgage of ship, necessity of recording, § 2958. Mortgage of vessels, § 2955. Navigation, foreign and domestic defined, § 962. Negligence, master's liability for, § 2043. Negligence of employee, master's liability for, § 2383. Neutral papers, insurance, § 2688. Oflacers, laws of congress govern, § 2066. Owner, respondentia by, § 3037. Owner for voyage, and his liability, § 965. Partners, whether shipowners are, § 2396. Part owners, jurisdiction of controversy between, § 964. Part owner may be a charterer, § 1959. Part owners, whether partners, § 2396. Passengers, master may engage, 8 2376. Passengers, master's poWer over, § 2038. Passengers: See Carrier. Perils of sea are what, § 2199. Perils of sea, liability for loss by, § 2197. Pilotage, § 2036. Pilot, navigation of ship devolves upon, § 2036. Pilot's negligence, liability of master for, § 2384. Pilot, when master must take, § 2036. Ransom of ship, master's power, § 2380. Repairs, master may procure, § 2376. Pt^ecording transfer of vessels, § 1173. Registry governed by federal statutes, § 966. Rules for passin-g, § 970. Rules for passing, breach of implies willful default, § 972. Rules for passing, breach of, liability, § 971. Sale of ship, delivery not necessary, § 3440. Sale of ship, when master may order, § 2378. Salvage, in general, § 2079. Seamen: See Seamen. Seaworthiness defined, § 2682. Seaworthiness: See Insurance; Seaworthiness. Several owners, jurisdiction on disagreement, § 964. Ship defined, § 900. "Ships" or "shipping," what included in terms, § 960. Ships, foreign and -domestic distinguished, § 963. Shipping 'defined, § 960. Shipwreck, deposit, § 1815. Stowage, § 2117. CItU Cod»-M 1016 SaiPfING— SOCIETIES, E1N3. Telegrapn cable, liability for dragging, § 537< Transfers, mode of, § 1176. Transfer of interest in, statute of frauds, § 1135. Unseaworthy ship, seamen not bound to go on, § 2051. Voyage and deviation, insurance, §§ 2692-2697. . Wharfinger: See Warehousemen. SIERRA COUNTY, tolls in, § 514. SIGNATURE includes mark, § 14. Of officer taking acknowledgment, § 1193. In indorsement, §§ 3109, 3110. Mark, by two witnesses necessary, § 14, SIGNS, there may be ownership in, § 655. SINGULAR includes plural, § 14. SINKING FUND to pay railroad bonds, § 457. SKILL: See Care. Borrower must exercise what, § 1888. Carrier of persons must use, § 2100. Defamation is effected by,.§ 44. Employee must use reasonable, § 1983. Employee must use all he possesses, § 1984. Injury arising from want of ordinary, § 1714. Right to protection from, § 43. Voluntary depositary must use, § 207S. SLANDER defined, § 46. Malice, when not inferred, § 48. Privileged communications defined and classified, § 47. SOCIAL ASSOCIATION and incorporation thereof, §§ 593- 604. See Religious, Social, and Benevolent Corporations. SOCIAL CORPORATIONS: See Religious, Social, and Be- nevolent Corporations. Articles of incorporation what to set out, § 594. No cumulative voting unless by-laws provide, § 307. SOCIETIES FOR PREVENTION OF CRUELTY TO CHIL- DREN AND ANIMALS. Act for the prevention of cruelty to animals, § 607, note. Aid to be given to by magistrates, police, sheriffs, etc., § 607c. Association already formed, code applies to, § 607d. Association with name similar to pre-existing society, code does not apply to, § 607d. Children may be arrested and brought before court for examination when, § 607g. Children may be taken from person having custody, when, § 607g. SOCIETIES, BTC.—SPECIAX. PARTNERSHIP. Mil Children taken from custody of another, how disposed of, § 607g. Compensation, monthly allowance to by supervisors, § 607e. Complaints for cruelty to children or animals, § 607h. Fines, penalties and forfeitures, inure to benefit of, when, § 607e. Formation, majority of corporators to be citizens and residents of state, § 607. Formation of, authorized, § 607. Formation of, number of corporators, § 607. Members and oflBlcers acting as police officers, powers of, § 6Q7f. Members and officers acting as police officers, resistance to, a misdemeanor, § 607f. Members and officers acting as police officers to show badge, § 607f. Members and officers may act as police officers when, § 607f. Pre-existing corporations, provisions of code extend to, § 607d. Proceedings for welfare of child, institution of, § 607g. Property, limit upon amount that can be held by, § 607a. Property, power to receive and dispose of, § 607a. Prosecution of persons guilty of cruelty, § 607b. SOLDIER, nuncupative will, § 1289. SOLE CORPORATIONS, religious society may become, when, § 602. See Religious, Social and Benevolent Corporations. SPECIAL PARTNERSHIP, acknowledgment and record of certificate, § 2480. Affidavit as to sums contributed, § 2481. Affidavit of publication of certificate, as ervidence, § 2484. Become general, when, §§ 2483, 2495, 2507. Certificate of, § 2479. Certificate of, to state what, § 2479. Dissolution of, § 2509. Effect of false statement in certificate of, § 2480. Effect of not publishing certificate, § 2483. Effect of special partner withdrawing capital, § 2495. Formation of, § 2477. For what purposes may be formed, § 2477. Fraudulent conveyances by special, § 2496. General and special partners, § 2478. General partner may sue and be sued alone, § 2492. General, special to what extent is, § 2424. 1012 SPECIAL PARTNERSHIP- SPECIFIC PERFORMANCE. Insolvency, creditors preferred to special partner, § 2491. Interest and profits, § 2494. Judgment confessed by special partner void as to cred- itors, § 2496. Liability of one held out as special partner, § 2444, Liability of the special partners, §§ 2500-2502. Liability of ostensible partner, § 2444. Lien by special partner, void as against creditors, § 2496. None without compliance with code, § 2482. Of what may consist, § 2478. Only the general partners may act, § ^489. Preference given by, void, § 2496. Preference to creditors over special partner, § 2491. Preferential transfer by special, void as to creditors, § 2496. Profits and interest of special partnership, § 2494. Publication of certificate of, § 2483. Renewal of, § 2485. Special partners, liability of, §§ 2501, 2502, Special partner, loan by to firm, § 2491. Special partner may investigate affairs and advise, § 2490. Special partner may not withdraw capital, § 2493. Special partner's name not used, unless wltn "limited/* § 2510. Special partners, new, admitted how, § 2508. Special partner, power of, §§ 2490, 2491. To what extent a general partnership, § 2424. What transfers void, § 2496. Who cannot charge persons as general partners, § 2503. Who may question existence of, § 2503. Withdrawal of capital by special partner, §§ 2493, 2495. SPECIFIC PERFORMANCE, agreement to sell by one without title, § 3394. Devisee or legatee, against, § 1301. Contract signed by one party only, of, § 3388. Contracts that cannot be enforced specifically, §§ 3390- 3392. Distinction between real and personal property, § 3387. Enumeration of cases, where will be denied, §§ 3390- 3392. SPECIFIC PERFORMANCE— STATUTE. 1033 Forfeiture, § 3369. Liquidation of damages not a bar to, § 3389 Mutuality a prerequisite, § 3386. One must be able to give free title, § 3394. Part performance, snecific performance in case of, § 1741. Pecuniary compensation, when adequate, § 3387. Penalty, § 3369. Presumption as to, when breach can be relieved by pecuniary compensation,. § 3387. Realty of oral agreement for transfer of on part per- formance, § 1741. Reformed contract, of, § 3402. Relief against parties claiming under person bound to perform, § 3395. Specific real property, how recovered, § 3375. When denied, §§ 3390-3392. When may be had, §§ 3366, 3384. SPECIFIC RELIEF, forfeiture, § 3369. Given in no other cases than specified in code, § 3274. How given, § 3367. Judgment for possession or title, § 3375. Penalty not enforceable by, § 3369. Preventive relief, § 3368. Recovery of personal property, §§ 3379, 3380. Specific real property, how recovered, § 3375. When may be granted in general, § 3366. SPEED of street cars, rate of, § 501. SPORT, right of conducting as easement, § 801. STAGE, obligation to carry baggage on, § 2180. See Carriers. STALLION. Lien of owner of stallion used for propaga- tion, p. 738, Stats. STAMP, none required on accident insurance contract, § 448. STATE, carrier may give preference to, § 2171. Islands belong to, when, § 1016. Preference by carrier to, § 2171. Property, may hold as private proprietor, § 669. Property of, what lands are, § 670. STATE LAND granted for use of railroads, §§ 474-478. Railroad may take wood and earth from, § 476. STATUTE, act done under authority of, not a nuisance, § 3482. Code continuation of, § 5. 1014 STATUTE— STATUTE OF FRAUDS. Construction of code to be liberal, § 4. Contemporaneous construction is the best, § 3535. Injunction not granted to prevent enforcement, § 3423. Interpretation giving effect preferred, § 3541. Interpretation must be reasonable, § 3542. Particular expressions qualify general, § 3534. Repeal of, by code, § 20. Retroactive, code is not, § 3. Revivor of, not worked by code repealing other stat- utes, § 20. Rights created by, there may be ownership in, § 655. Section, meaning of, § 14. STATUTE OF FRAUDS, agency, contract of, § 2309. Agent, agreement employing, § 1624. Assignment for creditors, §§ 3458, 3459. Auctioneer's memorandum, §§ 1624, 1798. Broker, agreement employing, § 1624. CJontract not in writing through fraud enforceable, § 1623. Conveyance, § 1091. Debt, default or miscarriage of another, agreement to answer for, § 1624. Guaranty, §§ 1624, 2793, 2794. Guaranty by factor need not be written, § 2794. In general, § 1624. Lease, § 1624. Manufacture, contract to, § 1740. Marriage, § 1624. Marriage, agreement upon, consideration of, § 1624 Mortgage, creation of, § 2922. Mortgage, renewal or extension, § 2922. Oral, contract may be enforced unless writing re- quired, § 1622. Oral, enforcing against fraudulent party, § 1623. Oral, transfer may be enforced when, § 1052. Oral, what contracts may be enforced, § 1622, Part performance of oral contract, § 1741. Real estate broker, § 1624. Realty, agreement relating to, § 1624. Realty, contract for sale, § 1741. Realty, grant of, § 1091. Sales, §§ 1624, 1739. Ship, transfer of interest in, § 1135, Specific performance, § 3338. Suretyship, § 1624. Trust, transfer of, § 1135. STATUTE OF FRAUDS-STREET RAILWAY CORPORATION. 1015 What agreements to be in writing, § 2180. Wine sale, § 3440. Writing supersedes oral stipulations, etc., § 1625. Year, contract not to be performed within, § 1624, STEPFATHER, rights and liabilities respecting stepchil- dren, § 209. STOCK AND STOCKHOLDER: See Corporation. STOPPAGE IN TRANSIT, in general, §§ 3076-3080. STORAGE: See Deposit; Warehouseman. Defined, § 1851. Degree of care required, § 1852. Carrier may place frieght on, § 2121. Compensation for fraction of week or month, § 1853. How terminated, §§ 1854, 1855. Sale of unclaimed baggage for, § 1862, Finder may put thing on, §§ 1868. STRANGER, attornment to, § 1948. Grant may inure to benefit of, § 1085. See Third Person. STRATAGEM, desertion induced by, § 97. STREAM: See Waters. STREET. Boundary, street as, § 831. Consent of municipalities to use of by railroad, § 470. Owner presumed to own to center, § 831. STREET RAILWAY: See Street Railway Corporations. Owned by natural person, law governing, § 511. STREET RAILWAY CORPORATION: See Carriers; Railroad Corporation. Cars to be modern, etc., § 501. City reserves right to improve streets, etc., § 507. Code sections, in general, which apply to, § 510. Completion of road, act authorizing, p. 763. Crossings, obstructions in making, § 500. Crossing track of another railroad, § 500. Conditions required on granting right* of way, § 498. Electricity, restrictions imposed in granting right to use, § 497. Electricity, steam road permitted to use, p. 772, Stats. Elevated, conditions^ § 498. Fare in cities over 100,000, act limiting rate of, p. 771. Franchise, acts relating to sale of and governing con- ditions of sale, pp. 753-762. Franchise, limitation of time within which may be granted, p. 773, Stats, leifi SUBAGBNT— SUBSEQUENTLY ACQUIRED TITLE. Franchise, statute validating ordinance granting, p. 762. Franchise proceedings prior to the granting or sale of, § 497a. License tax on, § 508. Mail can-iers to ride free on, p. 773, Stats. Municipal regulations respecting, in general, § 503. Owned by natural person, § 511.* Passengers: See Passenger Carriers. Penalty for overcharging, § 504. Rates of fare, § 501. Rates of fare, penalty for ignoring, § 501. Rates of fare, penalty for overcharging, §§ 504, 506. Right of way, restrictions on, § 498. Tickets, penalty for not furnishing, § 505. Tickets, penalty for not furnishing, action to recover, evidence, § 506. Tickets to be furnished, § 505. Time allowed for completion of line, § 502. Time for commencement and completion of line, ex- tension of, § 502. Track, authority to lay obtained how, § 497. Track, for grading purposes, § 509. Track for grading purposes, right to use steam, § 509. Track, imposing restrictions in grant to lay, § 497. Tracks to be laid how, § 498. Track, tv/o lines, right of to use same, § 499. SUBAGENT, factor, of, § 2368. Liability of, § 2022. Represents principal, § 2351. Unauthorized appointment of, effect of, § 2350. When may be appointed, § 2349. SUBPOENA, officer taking acknowledgment may issue, - § 1201. SUBROGATION, creditor, by, to securities held by surety, § 2854. Insurer of, in marine insurance, § 2745. Lienor, inferior, right to, § 2904. Person redeeming property subject to lien, subroga- tion of,"§ 2903. Redemptioner, of, §§ 2903, 2904. Surety, of, §§ 2848, 2849. SUBSCRIPTION includes mark, § 14. Mark, by, two witnesses necessary, § 14. SUBSEQUENTLY ACQUIRED TITLE passes by operation of law, § 1106. Passes by will, § 1312. SUBSTITUTE— SUCCESSION. 1017 SUBSTITUTE, liability of employee for, § 1989. SUCCESSION advancements constitute part of distribu- tive, share, § 1395. Advancement, death of heir before decedent, § 1399. Advancement, effect of, § 1309. Advancements, value of determined how, § 1398 Advancements, what are, § 1397. Advancement, when too much or too little, § 1396. After-born child not provided for in will, § 1306. Aliens may inherit how and when, § 1404. Alien, nonresident failure to claim, proceedings in case of, §§ 1405, 1406. Alien, nonresident, interest escheats when, § 1406. Alien, nonresident, property escheats subject to charges, § 1407. Alien, nonresident, taking by, when to assert claim, §§ 672, 1404. A mode of acquiring property, § 1000. Annulled marriage, children of, § 84. Bastards, by, § 1387. Bastard, to, § 1388. Bona fide purchaser from one claiming by, effect of will, § 1364. Child after-born, to be paid out of what part of es- tate, § 1308. Child born after execution of will, § 1306. Child born after death of testator, §§ 698, 1298, 1306, 1339, 1403. Child en ventre sa mere, § 1339. Children unprovided for in will, § 1307. Community property on death of husband, § 1402. Community property on death of wife, § 1401. Consanguinity computed how, §§ 1389-1394. Consanguinity, direct and collateral, §§ 1390-1393. Consanguinity, half blood, § 1394. Conveyance by heir good unless will proved within four years, § 1364. Death of beneficiary, right of heirs, § 1810. Defined, § 1383. Degrees of kindred, computation of, §§ 1889-1393. Escheated property subject to charges, §§ 1406, 1407. Escheats, §§ 1386, 1405, 1406. Escheat, when occurs, §§ 1405, 1406. Future interests pass by, § 699. General rules of, § 1386. Half blood, kindred of, § 1394. Husband and wife from each other, §§ 1400, 1402, 1018 SUCCESSION— SUPERVISORS. Illegitimate, by, § 1387. Illegitimate, to, § 1388. Intestate, to estate of, § 1384. Intestate's estate, rules of descent of, § 1386. Legitimated children by, § 1387. Liability of successor for decedent's obligations, § 1408. Liability of successors on covenants of decedent, § 1115. Life insurance may pass by, § 2764. Murderer of decedent not to succeed, § 1409. Not claimed, sale of property and disposition of pro- ceeds, §§ 1405, 1406. Personal and real property pass by, § 1384. Posthumous child, §§ 698, 1306, 1339, 1403. Pretermitted child, by, § 1307. Proceedings by attorney general where succession to estate not claimed §§ 1405, 1406. Representation, by, when takes place, § 1403. Rules of, in general, § 1386. Rules of where one dies intestate, § 1386. Successor liable for decedent's obligations, § 1408. Will, children unprovided for by, to succeed, §§ 1306, 1307. Words of, not necessary to pass fee, § 1072. SUGGESTIONS, false, when fraudulent, §§ 1572, 1710. SUMMONS. Certificate of place where summons may be served, § 1163. Certificate of place where may be served, aflSdavit on change of residence, § 1163. Foreign corporations: See Foreign Corporations under Corporations. SUNDAY, a holiday, § 7. Holiday falling on, § 8. SUPERFLUITY, does not vitiate, § 3537. SUPERHUMAN CAUSE, carrier not responsible for, § 2194. Excuses performance, § 1511. No one responsible for, § 3526. SUPERIOR JUDGE, may consent to apprenticeship when, § 265. May take acknowledgment, § 1180. SUPERVISORS, action for parental abuse, § 208. Apprenticeship, consent to, § 265. Apprentices, may bind out, § 268. Apprenticeship, presiding ofla.cer, power to bind to, § 269. SUPERVISORS— SURETYSHIP. lOM Elevated or underground railways, may grant fran- chise for, § 492. Franchises for roads for horseless vehicles, § 524. Franchise, act limiting time within which may toe granted, p. 773. Franchise, acts relating to sale of and governing con- ditions of sale, pp. 753-762. Franchise, act validating ordinance granting, p. 763. Franchise for underground or elevated road, condi- tions and terms of, § 492. Franchise for elevated or underground road, majority of frontage to sign petition, § 492. Provision for support of orphan out of property of intestate parent, § 205. Rates for water sold for irrigation, may fix, p. 786, Stats. SUPPORT TO LAND, right of more than natural, as ease- ment, § 801. Right to lateral and subjacent, § 832. SUPREME JUDGE, may take acknowledgment, 8 1180. SURETYSHIP: See Guaranty; Indemnity. Apparent principal may show himself surety, § 2832. Contribution from cosurety, § 2848. Contribution, release as affecting, § 1543. Creditor entitled to securities held by surety, S 2854. Defined, § 2831. Exoneration of surety, what acts effect, §§ 2839, 2840, 2845. Guarantor, surety has rights of, § 2844. Interpretation, general rules of, § 2837. Interpretation, strict, § 2836. Judgment against surety does not alter relation, § 2838. Letters of credit, §§ 2860-2865. Liability of surety, limit of, § 2836. Not liable beyond express terms of contract, § 2836. Penalty, liability where contract imposes, § 2836. Principal bound to reimburse, § 2847. Principars property to be taken first, § 2850. Release of surety, in general, § 2840. Release of surety by performance or offer of, § 2839. Reimbursement of surety, § 2847. Securities held by creditor or cosurety, surety en- titled to, § 2849. Statute of frauds, § 1624. Subrogation of creditor, § 2854. Subrogation of surety, §§ 2848, 2849, 1020 SURETYSHIP— TELEGRAPH CORPORATION. Surety defined, § 2831. Surety entitled to securities held by creditor, § 2849. Surety's liability, limit of, § 2836. Surety may compel principal to perform, § 2846. Surety may require creditor to proceed against prin- cipal, § 2845. Surety, person indemnifyin-g is a, when, § 2779. See Guaranty; Indemnity. SURPRISE, contract made by, not specifically enforced, § 3391. SURVEY of wagon road to be filed, etc., § 513. SURVEYOR GENERAL, selection of right of way by cor- porations sent to, § 478. SURVIVORSHIP between cotrustees, § 2288. Chose in action, survival of, § 954. TAIL- Estates tail abolished, § 763. TAX, covenant for payment of taxes nms with land, § 1463. Incumbrance includes, § 1114. Land an^d building corporations, of, § 648^. License, on street railways, § 508. Life tenant's duty to pay, § 840. Statute imposing on issue of certificates of stock re- pealed, p. 774, Stats. TECHNICAL WORDS, how construed, §§ 13, 1327, 1645. Not necessary in v/ill, § 1328. TELEGRAPH CORPORATION, articles ot to set forth what, § 291. Articles, prerequisites to filing, § 294. Care required in transmission of messages, § 2162. Common carrier, telegraph company is not, § 2168. Delivery, duty as to, § 2161. Delivery, within what distance to be made without compensation, § 2161. Franchise, sale or lease of, § 540. Franchise for telegraph between Asia and America, p. 774, Stats. Injury to, liability, § 537. Liability for delay in or refusal of message, § 2209. May dispose of what rights, § 540. Message, compensation for delivery of, § 2161. Messages, compensation for delivery over one mile, § 2161. Messages, damages for not accepting, § 3315. Messa-ges, liability for delay or refusal, § 2209. ♦TELEGRAPH CORPORATION— TENDER. 1021 Messages, obligations as to delivery of, § 2161. Messages, order of transmission, §§ 2207, 2208. Messages, telegraph, carriers of, liability of, §§ 2161, 2168. Penalty for malicious injury to, § 538. Poles, etc., right to erect, § 536. Eight of way along waters, roads and highways, § 536. Subaqueous cable, damages for injury to, §§ 537, 539. Subaqueous, monument to show location, § 539. Subaqueous, notice of location, § 539. Subscription, amount of, as prerequisite to filing arti- cles, §§ 293, 294. Ten per cent of amount subscribed to be paid in, § 294. Transfer or lease of property, § 540. Vessel injuring cable, § 537. TELEGRAPH AND TELEPHONE CORPORATIONS, care required in transmission of message, § 2162. Construction of lines authorized, § 536. Duty to deliver messages, § 2161. Franchises, property or rights of, sale, lease or assign- ment of, § 540. Highway, right to erect poles on, granted to, § 536. Injury to property of, liability for, §§ 537, 538. Lease, sale or assignment of property, rights and fran- chise, § 540. Liability for delay or refusal, § 2209. Poles, right to erect granted to, § 536. Property of, injury to, liability for, §§ 537, 538. Rights of way granted to, § 536. Subaqueous cable, liability of vessel for injury to, § 537. Subaqueous cable, notice of place where it lies, § 539. Vessel, injury by to subaqueous cable of, liability for, §§ 537, 539. TENANT FOR YEARS, rights in occupancy and use of property, §§ 819, 820. TENANTS IN COMMON, interests created are tenancies in common, when, § 686. Interest in common what, § 685. Notice, re-entry after termination of tenancy, § 790. Rights in occupancy and use of property, §§ 819, 820. Spouses as, § 161. Tenancy, how terminated, § 789. Will, devisees or legatees take as owners in common when, § 1350. TENDER and deposit extinguish obligation, § 1500. yon TENDER— THREAT. Interest stopped by, § 1504. Of performance of an obligation, §§ 14$5-1505k. TENSE of words in code, § 14. TESTIFY, defined, § 14. Includes what, § 14, THEATERS: See Amusements. All citizens to have equal rights, § 51. Denial of equal rights, punishment, § 52. Persons may be excluded from when, § 53. Refusal of admission to places of amusement, dama^^, § 54. Refusal of admission to, unlawful, § 53. THING IN ACTION: See Chose in Action. THIRD PERSON, act of, not to prejudice, § 3520, Agent must deliver to, when, § 2344. Agent's responsibility to, § 2343. Consideration, trust where paid by, § 855. Contracts for benefit of, § 1559. Delivery in escrow to, § 1057. Estates for life of, § 766. Grant may inure to benefit of, § 10S5. Marine insurance, information of belief of, § 2670. May enforce contract, § 1559. Necessaries furnished chiM by, §§ 208, 209. Necessaries furnished wife by, § 174. Partner's Uabillty to, § 2442. Pledge may be for security of obligation of, § 2992. Ratification of agent's act not to prejudice, § 2313. Reformation of contract not to prejudice, § 3399. Remainder on estates for life of, §§ 775, 776, Specific performance of contract to procure act of, § 3390. Trustee, voluntary, when is, § 2243. Trust property, when must see to application of, § 2244. Trusts for benefit of, § 2250. Who liable as partners to, § 2444, Who must suffer by act of, § 3543. THREAT, contract obtained through, voidable, 5§ 1567, 1689. Desertion caused by, divorce, § 98. Menace, defined, § 1570. Partner, by, to obtain advantage, 8 2411. Trustee, by, to obtain advantage, | 2228. Will procured by, void, § 1272. THRESHING MACHINE— TIME. HI23 THRESHING MACHINE, liens of laborers on, p. 743, Stats. See also Liens. TICKET: See Passengers, TIDE LANDS, state is owner of, § 670. TIDE- WATER, owner of land bounded by, § S30. TIMBER, injuries to, damages for, § 3346. TIME, abandonment in marine insurance, time of making, § 2719. Adoption of by-laws, § 301. Alien, claim to take by succession, § 672. Alien must appear and claim property within five years, § 672. Appraisers of homestead, time to file report, § 1252. Appropriation of water, time to commence works, §§ 1416, 1420. Articles of incorporation, time to file, § 299. Bonds of assignee for creditors, time to file, § S467. Creation of interest, § 749. Code takes effect when, § 2. Computation of, § 10. DiYorce, commencing actions for, § 127. Does not confirm void act, § 3539. Entire, of servant belongs to master, § 2013. Essence, not of unless expressly declared, § 1492. Grant, of delivery, presumption, § 1055. Inventory on assignment for creditors, time to file, § 3461. Lapse of defeats divorce, § 111. Marriage, of commencing action for nullity of, § 8S. Minority, computing period of, § 26. Nuncupative will, to be reduced to writing in thirty days, § 1290. Obligation, time of performance, §§ 1490, 1491. Of enjoyment of property, classification of interests as to, § 688. Of enjoyment of property, fixing, § 707. Notice of dishonor, §§ 3147, 3148. Notice of dishonor by indorser, § 3150. Notice to creditors on assignment by insolvent, §§ 3449, 3468. Performance of contract, § 1657. Presumptions arising from lapse of, how rebutted, § 126. Probate of nuncupative will, § 1291. Publication of sale for delinquent assessment, § S39. Railroad may regulate time of trains, § 465. 1024 TIME— TITLE DEED. Redemption from sale of franchise under execution, § 392. Representation in. insurance refers to what, § 2577. Right to rescind policy, time to exercise, § 2583. Street railway, time to commence and complete road, § 502. Unreasonable lapse of defined, § 125. Will, words in, relate to what, § 1336. TITLE, accession, by § 1013. Acquired subsequently to conveyance passes by oper- ation of law, § ±ia6. Buyer acquires better than seller had, § 1142. Damages for breach of warranty of title of person- alty, § 3312. Devise, by, § 1311. Executory agreement of sale, § 1141. Fee simple, when presumed to pass, § 1105. Freight, to, by transfer of bill of lading, §§ 2127, 2128, Highway, to, passes by transfer, § 1112. Instruments evidencing, declared by judgment, how proved by record, §§ 1159, 1204. Instruments affecting, recording in different counties, § 1218. Inventory of wife*s property as notice of, § 166. Judgment for possession or, § 3375. Lien does not transfer, § 2888. Loaned property, of, §§ 1885, 1904. Modes by which property acquired, § 1000, Occupancy, by, § 1006. Personal property, to, what passes by transfer, § 1140. Redelivery or cancellation of grant does not revest, § 1058. Specific devise or legacy, by, § 1363. Subsequently acquired inures to mortgagee, § 2930. Subsequently acquired, passes by operation of law, § 1106. Subsequently acquired, passes by will, § 1312. Thing in performance, title to when passes to cred- its, § 1502. Transfer, what passes by, §§ 1083, 1105. Trust property, title of grantor of, § 865. Warranty of, to personal property, § 1765. Warranty of, to personal property, by agent, § 2225. What title passes by transfer, §§ 1083, 1105. TITLE DEED, § 994. Ownership of, $ 9H., TITLrE INSURANCE COMPANY— TRADEMARK. 1025 TITLE INSURANCE COMPANY, dividends, amounts to be reserved before making, § 432. Dividends declared of what, § 432. May invest funds in plant, § 421 sub. 5. Surplus fund and impairment and restoration of, § 432. TOLL and toll-gates, §§ 513-519. Butte County, tolls in, § 514. Del Norte County, tolls in, § 514. Franchise, levy on and sale under execution, § 388. Gatherer not to detain person unnecessarily, § 518. Humboldt County, tolls in, § 514. Klamath County, tolls in, § 514. Natural person may own toll road, § 523. Natural person owning toll road, rights and liabil- Ues, § 523. Not to be charged on public highway, § 515. Penalty for avoiding, § 519. Penalty for taking unlawful or excessive, §§ 514, 518. Plumas County, tolls in, § 514, Rates to be posted over gate, § 516. :^ght of t&kiiig as servitude, § 802. Sierra county, tolls in, § 514. Toll gatherer may detain person until paid, § 517. Wagon road corporations, by, § 514. TORT, agent's, principal's liability for, §§ 2338, 2339. Carrier cannot exonerate from liability for, § 2175. Damages for, measure of, general rule, § 3333. Damages for wrongs, §§ 3333-3341. Damages recoverable for tortious acts, § 3281. Deceit, §§ 1709-1711. Duty to abstain from injury to person or property, § 1708. Indemnity against, §§ 2773, 2774. Infant's and lunatic's, § 41. In general, § 1708. Restoration of things wrongfully acquired, § 1712. Willful acts, negligence, etc., liability for, § 1714. See Wrongs. TOWN LOT not embraced in state lands granted to rail- roads, § 475. TRADE, contracts in restraint of, §§ 1673-1675. TRADEMARK, ownership, subject of, § 655. Property is, § 655. CivU Co4e— 6« 1028 TRADEMARK— TRANSFER. Sale of property to which attached, warranty, §§ 1772, 1773. Statute for protection of owners of bottles, boxes, si- phons, etc., p. 775. What may be appropriated, § 99L TRANSFER: See Assignment; Conveyance; Sale. Bill of lading, of, § 2128. Bill of sale, § 1053. Bona fide purchaser, title of, § 1142. Called what, § 1053. Complete when, § 1140. Covenants, of, §§ 1460-1467. Defined, §§ 1040, 1053. Delivery, conditional, cannot be to grantee, § 1056. Delivery, date of, presumption as to, § 1055. Delivery necessary, § 1054. Delivery to grantee must be absolute, § 1056. Denominated what, § 1053. Effect of, §§ 1083-1085. Executory agreement for, title passes when, § 1141. Fraudulent, respecting realty, §§ 1227-1231. Fraudulent: See Fraudulent Conveyance. Future interests pass by, § 69a. Gift: See Gift. Goodwill, of, § 993. Grant defined, § 1053. Grant includes whatever is essential to use, § 3522, Incidents follow thing transferred, § 1084. Insured thing, of, effect of, §§ 2553-2557. Life insurance policy, of, §§ 2764, 2765. Mortgage, when transfer deemed a, § 2924. Non-negotiable instrument, of, § 1459. Obligations, burden, transfer of, § 1457. Obligation, of rights arising out of, § 1458. Oral, when may be, § 1052. Possibility, of, § 1045. Property may be acquired by, § lOOd Property susceptible of, § 1044. Realty of: See Conveyance. Recording: See Recording. Re-entry, right of, may be transferred, § 1046w Rents, remainders and reversions, of, § liU. Ship, of interest in, statute of frauds, § 1135. Statute of frauds, §§ 1135, 1624. Stranger, grant may inure to, § 1085. TRANSFER— TRUST. 1017 •ntle passes when, § 1140. •ntle passes when, in executory contract for sale, § 1141. Title, what passes, § 1083, Title, when buyer stcquires better than seller had, § 1142. Unlawful, §§ 1227-1231. Voluntary, defined, § 1040. Voluntary, consideration not necessary, § 1040. Warranty of written instrument sold, § 1774. What called, § 1053. What may be transferred, § 1044. When complete, § 1140. Will, effect on, § 1302. See Assignment; Conveyance; Sale. TRANSIT, mortgaged property in, where located, § 2960. Stoppage in, §§ 3076-3080. TRANSPORTATION, commissioners of, act relating to, p. 766. TREASURE-TROVE: See Finder. TREE, injuries to, damages for, § 3346. Standing on line, § 834. Wholly on land of one, § 833. TRESPASS, accession to property by willful trespasser. § 1031. Personal property acquired by, § 1031. On personal property, liability, § 1033. Timber, cutting or injuring, damages, § 3346. Wagon road corporation, on, penalty for, § 520. TRIFLE, law disregards, § 3533. TROVER, conversion, damages for, §§ 3336, 3337, 3338. TRUSTEES, mingling property, liability of, § 2236. TRUST, absolute grant, when deemed to be, § 869. Adverse interest, trustee not to have, except, § 2230. Adverse interest, trustee to disclose, § 2233. Adverse trust not to be assumed by trustee, § 2232. Agent, trustee's powers as, § 2267. Alienation, suspension by trust, § 771. Application of payment or property, when one must see to, § 2244. Author of, may devise and transfer property, § 864. Beneficiary defined, § 2218. Beneficiary may be restrained from disposing of prop- erty, § 867. Beneficiary may enforce performance of tmst, § 863. Beneficiary may take advantage of at any time prior to rescission, § 2251. Beneficiary takes no estate or interest, § 863. Bona fide purchaser, grant when deemed absolute In favor of, § 869. Breach of trust, measure of liability for, §§ 2237, 2238. Care required in executing trust, § 2259. Cemetery may hold property in, §§ 612, 616. Charitable, restrictions on power of devise, § 1313. Code prescribes those only which may exist, § 847. Compensation of trustee, § 2274. Confidential relations, trust from, § 2219. Consent, mutual, creates, § 2251. Convey realty, to, § 857. Corporation when only can accept and execute trust, § 290%. Corporation when only can use "trust" or "trustee" as pait of name, § 290%. Cotrustees, how far liable for each other, | 2239. Cotrustees must all act, § 2268. Cotrustees, survivorship between, § 2288. Court is trustor, when, § 2252. Created only by writing or operation of law, § 852. Creation by mutu'al consent, § 2251. Creditors, surplus liable to when, § 859. Damages for breach of, §§ 2237, 2238. Damages for willful holding over by trustee, § 3335. Declaration of, expresses its nature, etc., § 2253. Declaration of, in writing merges prior declarations, § 2254. Declaration of, trustee must obey, § 2258. Declarations of trustor before acceptance as part of, § 2254. Devisee of trust property, title of, § 865. Directions of trustor except as modified to be followed, § 2258. Express, for what purposes created, § 857. Express, interest remaining in grantor of, § 866. Express, to receive rents and profits, and accumulate, § 857. Express, to sell, lease, or mortgage realty, § 857. Express, trustee to have whole estate, § 863. Express', when deemed absolute grant in favor of pur- chasers from trustees, § 869. Express, terminated when, § 871. TBUST. 1029 Extinguished how, §§ 871, 2279. Fraud, trustee guilty of, when, § 2234. Grantor of, interest remaining in, § 866. Grantor of trust property, title of. § 865. * Implied, not to prejudice purchaser or incumbrancer, § 856. Indemnification of trustee, § 2273. Tniuncti on in cases respecting, § 3422. Insanity discharges trustee, §' 2282. Insurance by trustee, form of policy, § 2589. Interest, compound, on omission to invest funds § 22:2. Interest on omission to invest funds, § 2262. Interest, trustee's liability to beneficiary for, § 2237. Investment of trust funds, § 2261. Involuntary arising from negligence, fraud, mistake, etc., § 2224. Involuntary, by wrongful detention, § 2223. Involuntary defined, § 2217. Involuntary trustee, purchaser with notice is, § 2243. Involuntary trustee, rights of, § 2275. Involuntary trustee, when third person is, § 2243. Kinds of, § 2215. Lease, to, § 857. Livestock, combinations to obstruct sale of, prevented, p. 665, Stats. Mingling trust property, liability, § 2236. Mortgage, to, § 857. Officer is trustor when, § 2252. Parties lo, § 2218. Powers vested in several, execution of, § 860 Presumption against trustee on dealing with bene- fici'ary, § 2235. Property, author may devise or transfer, § 864. Purchase by trustee of claims against trust fund, § 2263. Purpose for which may be created, § 2220. Recording transfer in, § 1164. Rents and profits, to receive, § 857. Revocation, right of, § 2280. Resulting from negligence, fraud, etc., § 2224. Resulting, not to prejudice purchaser or incumbrancer, § 856. Resulting, presumed when, § 853. Stockholder's liability, trust funds whether can be held for, § 322. 1030 TRUST. Successor, duty of trustee as to appointment of, § 2260. Superior court as trustee, § 2289. Surplus liable to creditors, § 859. Survivorship between cotrustees, § 2288. Suspension of power to alienate the subject of, 5 771. Termination of estate of trustee, § 871. Third persons, when involuntary trustees, § 2243. Third person, when must see to application of trust property, § 2244. Title of grantee or devisee of trust property, § 865. Title remaining in grantor, § 866. Transactions forbidden to trustee, § 2230. Transfer of interest in to be in writing, § 1135.' Trustee, act authorizing executor to act as, p. 702. Trustees, all must act, § 2268. Trustee appointed by court or public officer, § 2252. Trustee, authority of, §§ 867, 2267. Trustee, care required of, § 2259. Trustee's compensation, § 2274. Trustee, compensation, direction as to in declara- tion, § 2274. Trustee, defined, § 2218. Trustee's estate ceases when, § 871. Trustee's estate, termination of, § 871. Trustee discharged how, § 2282. Trustee's discretionary powers, control over, § 2269. Trustee, indemnification of for expenses, § 2278. Trustee, involuntary, rights of, § 2275. Trustee, involuntary, who is, § 2223. Trustee's liability for breach of trust, measure of, 5§ 2237, 2238. Trustee must ohey declaration of, § 2258. Trustee not to assume trust adverse to beneficiary, § 2232. Trustee not to influence to his advantage, § 2281. Trustee not to use property for own profit, § 2229. Trustee's obligation to good faith, § 2228. Trustee's office vacated by death or discharge, § 2281. Trustee's powers as agent, § 2267. Trustee, presumption against on dealing with benefi- ciary, § 2235. Trustee's purchase of claims against trust funds, § 2263. Trustee, removal of by court, § 2288. Trustee, resignation of, § 2283. Trustee, sale by in contravention of, void, { 870. TRUST— UNDUE INPLUENCQ. iMi Trustee, superior court as, § 2289. Trustee, superior ccurt when to appoint and direct ex- ecution of trust, § 2289. Trustee takes whole estate, § 863. Trustee to disclose adverse interest, § 2238. Trustee to have no adverse interest, except, § 2230. Trustees, to whom code applies, § 2250. Trustee, transactions forbidden, § 2230. Trustee, what constitutes one a, § 2219. Trustor, court is, when appoints trustee, § 2252. Trustor defined, § 2218. Vacancy in trusteeship may be by death or discharge, § 2281. Vacant trusteeship filled by court, when, §§ 2287, 2289. Voluntary, defined, § 2216. Voluntary, how created as to trustor, § 2221. Voluntary, how created as to trustee, § 2222. What can only exist, § 847. When deemed absolute gr^nt in favor of bona fide purchasers, ^ 869. Wrongful act, trust arising from, § 2224. TRUST COMPANIES, dissolution and winding up of, p. 676, Stats. TRUSTEES: See Trust. TRUST DEED, power to sell In, passes to assignee, § 858. Power to sell on, assisrnee may exercise, § 858. TURNPIKE CORPORATION: See Wagon Road Corpora- tion. TYPEWRITING, writing includes, § 14. UNCLAIMED DEPOSITS, statement of to be published by banks, pp. 674, 675, Stats. UNDERGROUND RAILWAY, franchise for, majority of frontage to sign petition, § 492. Franchise for, terms and conditions, § 492. Franchise may be granted for by supervisors, § 492. Power to grant frnachise for, § 493. UNDERTAKING: See Guaranty; Indemnity; Suretyship. UNDUE INFLUENCE, consent obtained by, § 1567. Contract obtained through, §§ 1567, 1689. Defined, § 1575. Presumption of, against trustee, § 2235. Rescission for, § 1689. Thing gained by, held in trust, § 2224. 1032 UNDUE INFLUENCE— WAGES. Trust arising from, § 2225. Wills procured or revoked through, § 1272. UNINCORPORATED ASSOCIATIONS: See Associations; Benefit Societies; Protective Associations. UNITED STATES, carrier may give preference to, § 2171. UNIVERSITY: See College. UNLAWFUL alternative in contract, effect of, § 1451. Condition in instrument renders, void, § 709. Condition in obligation void, § 1441. Contracts: See Contracts. Transfers: See Transfers. UNLAWFUL TRANSFERS: See Fraudulent Conveyances. UNRECORDED INSTRUMENT valid betwen parties and those with notice, § 1217. USAGE, agent to conform to, § 2349. Employee to conform to, § 1982. Meaning of words fixed by, § 1644. USE AND OCCUPATION. Wrongful occupation of realty, damages for, § 3334. USES AND TRUSTS: See Charitable Uses; Trusts. Uses, none exist except those specified in code, § 847. VALUE, how estimated, §§ 3353-3355. VENDEE'S LIEN, § 3050. VENDOR AND VENDEE: See Conveyance. VENDOR'S LIEN, §§ 3046-3049. Homestead liability for, § 1241. VESSEL: See Shipping. VESTED, future interest, when, § 694. Rights not affected by code, § 6. VIGILANT, preference given to the, § 3527. VOLUNTARY CONVEYANCE, consideration not neces- sary, § 1040. Defined, § 1040. Validity of, §§ 1040, 8442. See Fraudulent Conveyance. WAGERING insurance, § 2558. WAGES: See Master and Servant; Shipping. For services without employment. § 2078. Minor, of, 9 212. WAGES— WAGON ROAD CORPOKATION lOSS Personal representative of mate or seamen entitled to, § 2062. Wife's earnings, §§ 168, 169. WAGON ROAD CORPORATION, articles of, to set forth what, § 291. Bridges and ferries, § 514. Crossings, § 513. Expense of opening and changing highways, § 513. Franchise, forfeiture of, §§ 514, 516. Horseless vehicles, franchises for, consent of majority of frontage, § 524. Horseless vehicles, franchise, power to grant, § 524. Map and survey, approval of and rights under, § 513. Map of route to he filed, § 513. Mortgage of property, § 522. Mortgage, validity of, § 522. Mortgage, power to execute, § 522. Mortgage, two-thirds vote of capital stock necessary § 522. Natural person may own road, § 523. Natural person owning, rights and libilities, § 523. Opening highway taken, § 513. Penalty for charging unauthorized tolls, § 514. Penalty for trespass on property of, § 520. Posting date of franchise, rates of toll, etc., § 516. Revenue, to be how appropriated, § 521. Road, how must be laid out, § 512. Road not to exceed one hundred feet in width, § 513. Subscription, amount of as prerequisite to filing arti- cles, § 293, Survey and map to be filed and approved by supervi- sors, § 513. Ten per cent of amount subscribed to be paid, § 294. Toll gates, § 513. Toll-gatherer may detain persons until toll paid, § 517. Toll-gatherer, punishment for taking illegal tolls, § 518. Toll-gatherer, punishment for unreasonably delaying person, § 518. Tolls, illegal, punishment for taking, §§ 514, 518. Tolls, maximum and minimum rate of, § 514. Tolls, supervisors to fix rate of, § 514. Tolls, evading and its effect, § 519. Tolls in Butte County, § 514. Tolls in Del Norte County, § 514. Tolls in Humboldt County, § 514. Tolls in Klamath County, § 514. 16^ WAGON ROAD CX>RPO RATION— WAREHOUSEMEN Tolls in Plumas County, § 514. Tolls in Sierra County, § 514. Tolls, limit upon amount of, § 514. Tolls may be charged, § 514. Tolls, rates of to be posted, § 516. Tolls to be reduced, when, § 521. Trespass on property of, penalty for, § 520 WAIVER. Code provisions, right to waive, § 3268. Communication by insured, waiver of, § 2567. Communication in insurance, of, § 2567. Demand by pledgor or debtor, of, § 3004. Demand of performance, waiver of by refusal to per- form, § 3004. Daw may be waived, when and when not, § 3513. Lunatic cannot lose rights by, § 40. Notice of loss, waiver of defects in, § 2635. Notice of loss, waiver of delay in, § 2636. Notice of sale of pledged property, of, § 3003. Objections to offer of performance, of, § 1501. Of right of option, § 1756. Option as to delivery of goods, of, § 1756. Presentment and notice, of, § 31S9. Protest, of, § 3160. Provisions of code by stipulation, § 3268. Sale for delinquent assessment, waiver of, § 349. Vendor's lien, transfer of contract waives, § 3047. WAR dissolves partnership, § 2450. WAREHOUSES. Receipts, negotiable, property delivered to be indorsed on, § 1858c. Receipts, non-negotiable, to be so stamped, § 1858b. WAREHOUSEMEN. Act relating to warehouse and whar- finger receipts and other matters pertaining thereto, § 1858, note. Also, p. 780, Stats. Carrier's liability as, § 2120. Carrier's liability ceases on delivery to, § 2121. Felony, violation of law by, § 1858f. Fire, when only liable for loss by, § 1858e; p. 780 § 9 Stats. Penalties and liabilities for violating statute, § 1858f. Property not to be removed without consent of person holding receipt, § 1858a. Receipts, act in relation to, p. 778. Receipt, consent of holder necessary to removal of property, § 1858a. WAREHOUSEMKN— WATER. im Receipts, negotiable and non-negotiable, may be is- sued, § 1858b. Receipt, negotiable, cMm not indorsed on, not to be allowed, § 1858c. Receipts, negotiable, indorsement of, how made and effect of, § 1858b. Receipt, non-negotiable, property not to be delivered except on order, § 1859d. Receipts not to be issued unless property in warehouse, § 1858. Receipt, second, not to be issued while first outstand- ing, § 1858. Receipts, warehousemen violating law regarding, lia- bility of, § 1858f. Receipt, whU to state, § 1858b. WARRANTY, agent's authority as to, § 2323. Agent's authority, of, § 2342. Collateral: See Collateral Warranties. Collection, warranty of, § 2800. Covenants of, run with land, § 1463. Damages for breach of covenant of, § 3304. Damages for breach of warranty of fitness, § 3314. Damages for breach of warranty of quality, § 3313. Damages for breach of warranty of title to personalty, § 3312. oGodwill, warranty on sale of, § 1776. Indorser, by, § 3116. In policy, violation of, effect of, §§ 2610, 2611, Judicial sale, on, § 1777. Lineal and collateral abolished, § 1115. Lineal: See Lineal Warranties. Money, of, on exchange, § 1807. Policy of insurance, form of, § 2604. Sale of goodwill, warranty on, § 1776. Seaworthiness, § 2681. That ship will carry neutral papers, § 2688. See Sales. WASTE, grantee's right to recover for, § 821* Mortgaged property, on, § 2929. WATER: See Water and Canal Corporation. Abandonment of appropriation, § 1411. Alluvion, defined, § 1014. Alluvion, ownership of, § 1014. Appropriation, completion of, § 1417. Appropriation, diligence in prosecuting work, §§ 1416, 1420. Appropriation, failure to comply with rules, § 1419. Appropriation, first in time, first in right, § 1414. Appropriation must be for useful purpose, § 1411. Appropriation, rights in stream may be acquired by, § 1410. Appropriation, time to commence works, §§ 1416, 1422. Appropriation, time to commence works when route or point of diversion on public land, § 1422. Appropriation, time to commence works where debris commissioners recommend dam, § 1416. Avulsion, § 1015. Boundaries, as, rights of owners, § 830. Change of place of diversion, right and manner of, $ 1415. Changing use, .§ 1412. Completion of diversion, defined, § 1417. Diligence in appropriating, §§ 1416, 1420. Diversion, point of may be changed, §§ 1412, 1415. Diversion, change of place of, manner of, § 1415. Easement of having flow without disturbance, § 801. EJasement to receive and discharge on land, § 801. Easement to take, § 801. Forfeiture of claim to, §§ 1419, 1420. Hydraulic mining, §§ 1424, 1425. Islands, to whom belong, §§ 1016-1018. Lake, state owns land below water of, § 670. Notice of appropriation, recording, §§ 1415, 1421. Notice of appropriation, requisites of, § 1415. Notice, posting, § 1415. Owners of ditch, flume, etc., in common, action for, form of, parties, fees and costs, § 843. Owners of ditch, flume, etc., in common, liability for maintaining and repairing, § 842. Owners of ditch, flume, etc., in common, liability of co- owners, how enforced, § 843. Present claimant, rights of, § 1420. Priority of right to, § 1414. Reclaiming, after having turned into other channel, § 1413. Recording notices, §§ 1415, 1421. Relation, doctrine of, applied, § 1418. Relation of claim to date of notice, § 1418. Servitudes, §§ 801, 802. State is owner of land below navigable stream, § 670. Tide lands, state is owner of, § 670. Turning into another channel, reclaiming, § 1413. WATER AND CANAL CORPORATION. 1<»9 WATER AND CANAL CORPORATION, bridges, duty to maintain, § 551. Canals, flumes, etc., not to obstruct highways, § 551. City or town, contract to supply, authority required, § 548. City or town, contract to supply, limit upon term of, § 548. City or town, contract to supply, validity, § 548. City or town, contract to supply water, § 548. City or town, right to use streets, alleys, and ways in, § 550. Distinctions not to be made in supplying water, § 549. Duty to supply water on demand, § 549. Duties of, in furnishing cities, § 549. Fire, water to be furnished free in case of, § 549. Fire, water to be furnished, in what cases of, § 549. Flumes, duty as to, § 551. Highway, must not obstruct, § 551. Irrigation, corporation, duties of, § 552. Irrigation rights, § 552. Irrigation, right to continued use of water for, § 552. Irrigation, right to flow and use of water a perpetual easement, § 552. Irrigation, right to water for, sold by irrigating com- pany, § 552. May provide that stock is appurtenant to land, § 324. May provide water will be sold to stockholders only, § 324. Pipes, duties as to, § 551. Rates and charges to cities, § 549. Rates to be reasonable, § 549. Rates, city or town may regulate though contract made, § 548. Rates, commissioners, decision of majority determine, § 549. Rates, commissioners, how selected, § 549. Rates to be fixed by commissioners, § 549. Stock, appurtenant to land, how transferred, § 324. Supervisors may prescribe rules for, § 549. Transfer of stock of water or irrigation companies, § 324. Water in case of fire free of charge, § 549. See Waters. WATER COMPANY, transfer of stock, § 324. Rates of water sold for irrigation, may fix, p. 786, Stata. mS WATER COMPANY— WILLS, I. Sale, rental and distribution of water other thJan in cities, act relating to, p. 781. WAY: See Right of Way. Boundary by, § 831. Basement of, § 801. WHARF CORPORATIONS: See Bridge, Ferry, Wharf, Chute and Pier Corporations. WHARFINGER. Receipts, act relating to, p. 778. WHARVES- Statutes governing wh^rf corporations apply where owned by individual, § 531. WIDOW, legacy to, chargeable with debts of testator, § 1361. Interest on legacy to, when accrues, § 1369. Inheritance by: See Succession. WILL, ESTATES AT, are chattel interests, § 765, Not subject to execution, § 765. WILLS. I. Who may make; execution of; witnesses; effect of code. II. Validity of; omissions or mistakes. III. What may pass by; who may take under. IV. Conditions in. V. Foreign; laws governing. VI. Interpretation. VII. Devises and legacies; abatement; ademption; lapse. VIM. Codicils. IX. Advancements; anmiitfes. XI. Olographic. X. Nuncupative. XII. Revocation. XIII. Alteration. XIV. Revival and repobflcatlon. Succession: See Succession. I. Who may make; execution of; witnesses; effect of code. Acknowledging, § 1276. Attested, how, § 1276. Code, prior wills not affected by, § 1375, Competency, who has, to make, § 1270. BJxecuted, how, § 1276. WILLS. Il-rV. 1039 Fee, word of inheritance not necessary to pass, § 1329. Heir's, etc., not necessary to pass fee, § 1329. Married woman may dispose of separate estate by, § 1273. Married woman's, how executed and proved, § 1273. Publication of, § 1276. Subscribing, manner of, § 1276. Subscribing testator's name by another, manner of, § 1278. Technical words not necessary, § 1328. Witnes-ses and their attest»:-tion, § 1276. Witnesses, competency of creditors as, § 1282. Witness, creditor as, effect of, § 1283. Witnesses, effect of not adding residence, § 1278. Witnesses, effect of their subsequent incompetency, § 1280. Witness, gift to, and his rights thereon, § 1283. Witness, gifts to, validity of, §§ 1282, 1283. Witnesses, manner of signing, § 1276. Witnesses, number of, § 1276. Witness to add residence, § 1278. Written, to be, § 1276. II. Validity of; omissions or mistakes. Conjoint, validity, § 1279. Fraud, will procured by, § 1372. Mistakes and omissions, declarations not admissible to correct, § 1340. Mistakes, correcting, § 1340. Mutual, validity, § 1279. Omissions, supplying, § 1340. Undue influence, will procured by, § 1272. III. What may pass by; who may take under. Bequests may be made to whom, § 1275. Charitable uses, restrictions on power of devise to, § 1313. Corporations for scientific, literary, or educational pur- poses, power to take under, § 1275. Corporations, power of to take under, § 1275, Life insurance may pass by, § 2764. Property may be acquired by, § 1000. What may pass by, § 1274. Who may take under, § 1275. IV. Conditions in. Conditional devises and bequests, defined, § 1345, Conditional disposition vests when, § 1347, [>40 WILLS, V, VL Will, validity of, § 1281. Precedent, §§ 1346-1348. Precedent, if impossible bequest vests, § 1347. Precedent, nothing vests until fulfilled, § 1347. Precedent, when deemed performed, § 1348. Subsequent, defined, § 1349. V. Foreign; laws governing. Foreign, validity of, § 1285. What law governs, §§ 1375, 1376. VI. Interpretation. Against intestacy, § 1326. Ambiguous or doubtful pai s, how may be explained, § 1323. Class, devise or bequest to, § 1337. Clear bequest not affected by other provisions, § 1322. Clear bequest not affected by reasons, etc., § 1322. Conversion, equitable, § 1338, Declarations of testator as to intent not admissible, § 1340. Devested, and vested disposition, when only can be, § 1342. Devise passes all estate testator had, §§ 1311, 1329. Devise or bequest of all property passes what, § 1331. Donation and limitation, words of, §§ 1334, 1335. Descendants, interpretation of, § 1334. Estate conveyed by, § 1311. Family, devise to what vests, § 1334. Future interests pass by, § 699. General devise or bequest, what passes by, § 1331. •*Heirs," etc., not necessary to pass fee, § 1329. Heirs, relations, descendants, etc, § 1334. Harmonizing paits, § 1321. Income, bequest of, when accrues, § 1366. Intention, ascertained how, § 1318. Intention to be drawn from words of will, § 1318. Intention to be given effect, § 1317. Interpretation, intention to govern, § 1370. Interest, bequest of, when accrues, § 1366. Interpretation, intention, oral declarations not admis- sme, §§ 1318, 1340. Interpretation, intention, will to be construed accord- ing to, § 1317. Intestacy avoided, § 1326. Issue, interpretation of, § 1334. Irreconcilable parts, latter part controls, § 1321. WILLS, Vrt. UNI Legacies, legatees tal^e as tenants in common, when, § 1350. Legal representatives, rights under disposition to, § 1334. Limitation, words of, §§ 1334, 1335. Law governing, § 1376. Mistakes and omissions, how corrected, § 1340. Nearest relations, disposition to, rights under, § 1334. Next of kin, disposition to, rights under, § 1344. Oral declarations excluded, §§ 1318, 1340. Partial intestacy not favored, § 1326. Passes after-acquired estate, § 1312. Passes what property, §§ 1329, 1331. Passes what realty, §§ 1311, 1312. Personal representatives, rights under disposition to, § 1334. Power to devise, how executed by terms of will, § 1330. Relations, disposition to, rights under, § 1334. Relatives, interpretation of, § 1334. Residue, devise or bequest of, §§ 1332, 1333. Resort to other parts of will or to references, § 1323. Rules of, in general, § 1319. Rule of descent, § 1386. Several testamentary instruments to be construed to- gether, § 1320. Shelley's case, rule in, § 1335. Technical words, how construed, § 1327. Tenants in common, beneficiaries, when take as, § 1350. Time of creation of interest created by, § 749. Vest, legacies and devises, when, § 1341. Vested, disposition is, when, § 1341. Vesting of legacies and devises, time of, § 1341. Words of donation and limitation, § 1335. Words refer to what time, § 1336. Words taken in ordinary sense, § 1324. Words to be made operative, § 1325. VII. Devises and legacies; abatement; ademption; lapse. Abatement, when takes place, § 1362. Ademption, when advancement is, § 1351. Child born after will, rights of, § 1300. Death of devisee in lifetime of testator, rights of de- scendants, § 1310. Death of legatee or devisee before testator, §§ 1343t 1344. OvU Cod&-6« WILI^. VII. Devested, disposition cannot be, except on precise con- tingency, § 1342. Devise carries all estate of devisor, §§ 1311, 1329. Devise, clear and distinct, not affected by other pro- visions, § 1322. Devise, conditional, defined, § 1845. Devise, extent of estate conveyed by, § 1311. Devise lapses, when, §§ 1343, 1344. Devise, specific, title passes by will, § 1363. Devises, specific, possession bow obtained, § 1363. Devises, when vest, § 1341. Devisees, liability for obligation of testator, § 1377. Devisee, remedies of, for rent, nonperformance, waste or forfeiture, § 821. Devisee, warranty of devisor, liability on, § 1115. Gift, satisfying before death, § 1367. Interest vests, when: See ante, VI, Interpretation. Inventory of property by legatee for life, § 1365. Legacies, abatement of, § 1362. Legacies, clear and distinct, not affected by other pro- visions, § 1322. Legacy, conditional, defined, § 1345. Legacy, demonstrative, defined, § 1357. Legacy, demonstrative, failure of fund, effect of, § 1357. Legacies, due when, § 1368. Legacy, general, is what, § 1357. Legacies, interest on, § 1369. Legacy, lapses, when, §§ 1343, 1344. Legacies, order of resort to property for payment of, § 1360. Legacies, preference of to kindred, § 1361. Legacy, residuary, defined, § 1357. Legacy, residuary, embraces what, § 1357. Legacy, satisfying before death, § 1367. Legacy, specific, defined, § 1357. Legacy, specific, effect of failure of, § 1357. Legacy, specific, possession how obtained, § 1363. Legacies, specific, title passes by will, § 1368. Legacies to kindred, preference, § 1361. Legacies, when vest, § 1341. Legatee for life. Inventory by, § 1365. Legatees, liability for obligations of testator, § 1377. Legatees' possession, § 1365. Pretermitted child, or issue of child, rights of, § 1307. Specific devise or legacy, possession, how obtained, § 186S. WILLS, VIII-XII. I04B Specific devise or legacy, title passes by will, § 1363. Succession: See Succession. VIII. Codicils. Republicat;ion by, § 1287. Revocation of will revokes, § 1805. Will includes, § 14. IX. Advancements; annuities. Advancement, effect of, § 1309. Advancement, death of beneficiary receiving, effect on heirs, § 1399. Advancements, effect on distributive shares, §§ 1395. 1396. Advancements, when ademptions, § 1351. Advancement: See Advancements. A.fter-born children, effect of advancement to, § 1308. Annuities commence when, § 1368. Annuity defined, § 1357. Annuity, effect of failure of fund, § 1357. Annuity, failure of fund, resort to other property, S 1357. X. Nuncupative. How executed, § 1288. Limited to thousand dollars, § 1289. Need not be written, § 1276. Probate of, § 1291. Probate of, process to interested parties, § 1291. Probate not to be granted until after fourteen days, § 1291. Proof of, limitation on time for, § 1290. Requisites of, § 1289. To be reduced to writing, § 1291. When may be made, § 1289. Who may make, § 1289. Witnesses, § 1289. Words to be reduced to writing in thirty days, § 1290. XI. Olographiic. Defined, § 1277. Manner of executing, § 1277. XII. Revocation. Alteration in interest disposed of, when is, § 1304, By duress, § 1272. By fraud, § 1272. By subsequent will, § 1296. By undue infiuence, § 1272. lOM WII^S, XIII, XIV— WITNESS. Charge or incumbrance upon land as, § 1302. Conjoint, revocation of, § 1279. Contract for transfer of property not a, § 1301. Conveyance, effect of, on, §§ 1301, 1303, 1304. Conveyance as a, §§ 1302, 1303. Does not revive prior will, unless, § 1297. E?ffect of marriage of man, § 1299. Effect of marriage of woman, § 1300. Evidence of, when canceled by third person, § 1293. In what ways accomplished, § 1292. Marriage and birth of issue, § 1298. Marriage and birth of issue, evidence to rebut pre- sumption of, from, § 1298. Marriage, evidence to rebut presumption of revocation by, 9 1299. Married woman may revoke wills, § 1273. Mortgage not a, § 1802. Mutual, revocation of, § 1279. Of win in duplicate, § 1295. Provisions as to, to what wills apply, § 1374. Revoked, how, § 1292. Revokes codicil, § 1306. XI M. Alteration. How effected, § 1292. Married women may alter, § 1273. XIV. Revival and republication. Marriage, will revoked by, not revived by death of hus- band, § 1300. Revive, revocation of subsequent will does not, unless, § 1297. Republication by codicil, § 1287. WINE, recording sale of, § 3440. Sale of, delivery not necessary to validity of, § 3440. Sale of to be in writing, § 3440. WITNESS, acknowledgment by, requisites for, § 1185. Depose defined, § 14. Handwriting, proved how, § 1199. Handwriting, when may be proved, § 1198. Mark, signature by, two witnesses necessary, § 14. Nuncupative will, to, § 1289. Oath of, in taking acknowledgment, § 1185. Olographic will, not necessary to, $ 1277. Privileged testimony, S *7. WITNESS-WORDS AND PHRASES. »*B Recording instniment may be proved by other than subscribing, when, § 1198. Subscribing, manner of proving instrument by, §1 1195- 1197. Subscribing, to be known to officer taking proof, { 1196. Subscribing to prove, what, § 1197. Subscription includes mark, § 14. Testify includes what, § 14. Will, creditor as witness to, effect of, § 1282. Will, to, §§ 1276-1279. Will, to, cannot take under, § 1282. When may take as much under will as by succession, § 1283. WOOD, right to take, § 802. WORDS AND PHRASES: See Definitions. Completion, § 1417. Construction of, § 13. Create, debts, § 579. Depose, § 14. Descendants, § 1334. Donation and limitation in will, { 1535. Family, § 1334. Grant, § 1053. "Grant," covenants implied from, $ 1113. Head of a family, § 1261. Heirs, § 1334. Incumbrances, § 1114. Inheritance of, not necessary to pass fee, § 1072. Interpretation of doubtful, §§ 1068, 1654. Issue, § 1334. Joint authority, giving, how construed, § 12. Legal representatives, § 1334. Masculine gender includes what, § 14. Month, § 14. Nearest, § 1334. Nearest relations, § 1334. Next of kin, § 1334. Oath includes affirmation -r declaration, i$ 14. Person includes corporation, § 14. Personal property, § 14. Personal representatives, § 1334. Plural includes singular, § 14. Property includes realty and personalty, § 14. lOM WORDS AND PHRASES— WRONG. Real property, § 14. Relations, § 1334. Representatives, § 1S34. Section, § 14. Shipping, § 960. Ships, § 960. Signature includes mark, § 14. Singular includes plural, § 14. Subscription includes mart^, § 14. Taken in ordinary sense, §§ 1324, 1644. Technical, how construed, §§ 13, 1327, 1645. Technical, not neces-sary in will, § 1328. Testify, § 14. To be given some meaning if possible, § 1826. Typewriting, writing includes, § 14. Will includes codicil, § 14. Will, in, to what time refer, § 1336. Will, to receive operative construction in, § 13S5. Writing, includes printing, § 14. Writing includes typewriting, § 14. WORKMANSHIP, ownership of property formed by ma- terials "and, § 1028. WRECKS AND WRECKED PROPERTY, involuntary de- posit in case of shipwreck, § 1815. Dnty of depositary in such case, § 1816. Wages of seamen not lost by shipwreck, when, § 2058. WRITING: See Statute of Frauds. Action to obtain judgment proving instrument, § 1203. Certificate of proof of instrument, what to state, § 1200. Contract, in, controls printed parts, § 1651. Contract, in, how altered, § 1698. Contract prevented by fraud from being put in, en- forced when, § 1623. Erroneous, how far disregarded, when, § 1640. Includes printing, § 14. Intention of parties to be ascertained from, § 1639. Non-negotiable instrument in, transferable, § 1459. Presumption as to value of instrument in writing, § 3356. Private property in, § 985. Supersedes oral negotiations, §§ 1625, 1626. Typewriting, includes, § 14. Warranty on sale of written instrument, § 1774. WRONG: See Tort. Damages for, measure of, §§ 3333-3341. WRONG— YEARS, ESTATES FOR. 1W7 He who consents, suffers no, § 3515. Law does not interpose between parties equally in, § 3524. Minors and lunatics liable for, § 41. No one can be permitted to take advantage of his own, § 3517. Remedy for every, § 3523. YEAR, contract not be performed within, § 1624. What deemed to be in computation of interest, § 1917, YEARS, ESTATES FOR, are chattels real, § 765. Limitation on power of suspension, § 770. jp" liii^^^^^iliiiii U.C. BERKELEY LIBRARIES illlllili cQasb7m3fl