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'^Aa3AiNnji\v ^lOSANCEl£f^ CO >\,OFCAllF0ff^ ^OFCAtlFO% ^ ^ ^D- \j 1 H\0^/ THE CODES AND STATUTES CALIFOENIA, AS AMENDED AKD IS TOSCX AT THE CLOSE OF THE TWENTY-SIXTH SESSION OF THE LEGISUTUHE, 1885, With Notes Containinq References to All the Decisions of the Supreme Court Construing or Illustrating the Sections op the Codes, and to Adjudications of the Courts of Other States Having Like Code Provisions, m FOUR YOLUMES, F. P. DEERINQ, 0/ the San Francisco Bar, CIVIL CODE. San Francisco: BANCROFT-WHITNEY CO. Law Publishers & Law Booksellers. 1886. ^^iOW|3> 5 Entered according to Act of Congress, in the year 1885^ By a. L. BANCROFT & COMPANY, In the Office of the Librarian of Congress, at Washingtoa SUMMARY OF CONTENTS. Konom TITLE OF CODE w 1 PREUMINAllY PKOVISIONS , 2-21 DIVISION FIRST. [Secs. 25-651.] EabtI. persons 25-42 II. PERSONAL RIGHTS 43-50 ni. PERSONAL RELATIONS 55-276 Title I. Makriaoe 55-181 CuAi*. I. The Contract of Marriage 65-80 Art, I. Validity of Marriage 55-03 II. Authentication of Marriage 68-79 III. Judicial Determination of Void Marriages 80 Chap. II. Divorce 82-148 Aet. L Nullity 82-86 IL Dissolution 90-107 III. Causes for Denying Divorce 11 1-130 IV. General Provisions 136-148 Chap. IIL Husband an.l Wife 155-181 Title II. Parent akd Cuild 193-230 CuAP. L By Birth 193-215 n. By Adoption 221-230 Title in. Gdardian and Ward 23G-258 IV. Master and Servant 264-278 Pabi IV. CORPORATIONS 283-651 Title I. General Provisions Applicable to All Corporations 283-403 CuAP. I. Formation of Corporations 283-321 Art. I. Corporations I )Ltined, and how Organized 28.3-300 II. By-laws, Directors, Elections, and Meetings 301-321 Chap. II. Corporate Stock 322-349 Art. L Stock and Stockholders 322-327 IL Aascssinents of Stock 331-849 Chap. IIL Corporate Powers 354-393 Art. I. General Powers 354-302 II. Records 377, 378 III. Examination of Corporations. 382-384 IV. Judgment against and Sale of Corporate Property.... 388-393 CiiAP. rV. Extension and Dissolution of Corporation 399-403 TnXK II. Insdrance Corporatki.ns. 414-^51 CuAP. I. General Provisions 414-420 II. Fire and Marine Insurance Corporations 424-431 IIL Mutual Life, Health, and Accident Insurance Corporations.. 4.".7^51 Titlk HI. IIailroai> Corporations 454-491 iii StMMARY OF CONTENTS, Chap. L Officers and Corporate Stock 454-lo9 II. Enumeration of Powers 465-478 III. Business, how Conducted 4(9-491 Title TV. Stui kt-Railroad Corporations 407-51 1 V. Waoon-Road Corporatio>- 1 0.'J.'i Title IV, Tranrfkr 10.?9 1-231 Chap. I. Transfer in General l'»:^9- 1085 Akt. I. l>efinition of Transfer lOr.0-1040 II. Wliat may lie Transferred 104-!- 1047 III. Mo.lc of Transfer 10:)2-10.-,a IV. Interpretation of Grants K«)l!-1072 V. niTeot of Transfer 10S.V10.S.5 Chap. IT. Transfer of Real Property lODl-l 1 1.') Art. I. Modeof Transfer 100I-IO!)5 II. Ktiect of Transfer 1 104- 1 1 15 Chap. III. Transfer of Personal Property 1 1 .Sr>- 1 1 .')3 Art. I. Mode of Transfer 1 1-'^.^', 1 1?'6 II. Wiiat Operates as a Transfer 1140-1112 III. Gifts 1 14G-1 1.-;3 Chap. IV. Recoriling Transfers 115S-I2I7 Art. I. Wliat may be Recorded ll.")S-liG5 II. Mode of Recording 1 100- 1 173 III. Proof and Acknowledgment of Instruments 1 ISO- 1207 IV. Effect of Recording, or the Want thereof 1213-1217 Chap. V. Unlawful Transfers 1227-1231 Title V. Homestkaus 12;>7-12r)3 Chap. I. General Provisions 12.37-12G1 11. Homestead of the Head of a Family 12(!2-12G5 III. Homestead of Other Persons 12GG- 1209 Title VI. Wills 1j70- 1 377 Chap. I. Execution and Pievocation of Wills 1270-1313 II. Interpretation of Wills 1317-13jI III. General Provisions 1.3.')7-1377 Title VU. Succession- 13S3- 140S Vm. Watek Rights « 1410-1422 DIVISION THIRD. [Secs. 1427-32G8.] PabtL OBLIGATIONS in GENERAL 1427-ld43 Title I. Definition of Obi.ioations 1427, 1423 II. Imterpretatiom of Obliuations 1429-1451 Chap. I. General Rules of Interpretation 1429 II. Joint or Several Obligations 1430-1432 IIL Conditi(mal Obligations 1434-1442 IV. Alternative Obligations 144S-1451 Title ITT. Transfku op Obligations H.')7-14G7 IV. Extinction of Oblioatioxs 147;5-K")43 Chap. L Performance 147:i-1479 II. Offer «>f Performance 14S.>-lo05 III. Prevention of Performance or Offer 1''>1 1-1515 IV. Accord and Satisfaction 1521-1524 V. Novation 15.30-1533 VL Release 1541-1543 PartH. contracts 1540-1701 Title I. Nature of a CoyTRAcr 1549- 1G15 €kap. L Definition 1549. 1.350 IL Parties. 1.55&- 1559 III. Consent. 15G5- 1589 IV. Object of a Contract 159.V-I599 V. Consideration 1G05-IG15 Title II. Majiner of Creating Co^TRACTs 1G19-1G29 r SUMMARY OP CONTENTa BECTI0TT9 Tnx,E m. IxTEnrRETATiox OF Contracts „ 1G;]J-1CGI IV. Unlawful Contracts 1GG7-If76 V. ExTiNCi ION OF Contracts 1G82-1701 Chap. I. Contracts, how Extinguished 1682 11. llescissioii 1GS8-1G91 III. Alteration and Cancellation 1G!)7-1701 Part IH. OBLIGATIONS IMPOSED BY LAW 1708-1715 Part IV. OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS. 1721-.3268 TitleL Sale 17-21-1793 Chap. I. General Provisions ]7'21-17il Art. h Sale 1721, 1722 II. Agreements for Sale 1726-1734 III. Form of tlie Contract 17:'.9-1741 Chap. IL Rights and Ol)ligations of the Seller 1748-1773 Art. I. Riglits and Duties before Delivery 1748, 1749 II. Delivery 17:).V1753 III. Warranty... 17G.V1778 Chap. IIL Riglits and Obligations of the Buyer 17S4-17S6 IV. Sale by Auction 1792-1793 Title n. Exciianoe 1S04-1S07 III. Deposit 1 S I .?- 1 873 Chap. I. Deposit in General 1SI.V1827 Art. I. Nature and Creation of Deposit 181.V1813 II. Obligations of the Depositary 1S22-1827 Chap. II. Deposit for Keeping 1S:):V-1S72 Art. I. General Provisions lS."r>-lS40 IL Gratuitous Deposit 1844-1847 III. Storage IS-'^l -1855 IV. Innkeepers 1S:)9-1863 V. Finding 1864-1872 Chap. II. Deposit for Exchange 1 873 Title IV. Loan 1884-1920 Chap. L Loan for Use 1884-1896 IL Loan for Exchange 1902-1906 III. Loan of Money 1912-1920 Tttlk V. Hiring 192.-.-1959 Chap. I. Hiring in General 1 JJ.V1935 II. Hiring of Real Property 1941-1950 HI. Hiring of Personal Property 195.V1959 Title VI. Service .''. 19G:)-2079 Chap. I. Service with Employment 19G5-2003 Ai{T. I. Definition of Employment 1965 IL Obligations of the Employer 19G9-1971 IIL Obligations of the Employee 197.V1992 IV. Terminaticm of the Employment ^ 1996-2003 Chap. II. Particular Employments 2009-2072 Art. I. Master and Servant 2009-2015 II. Agents 201 9-2022 III. Factors 2026-2030 IV. Ship-masters 20:54-2044 V. Matesand Seamen 2048-2066 VL Ships' Managers 2070-2072 Chap. III. Service without Employment 2078, 2079 Title VIL Carriaoe 208.V2209 CUAP. L Carriage in General 2085-2090 IL Carriage of Persons 2096-2104 Art. I. Gratuitous Carriage of Persons 2096 U. Carriage for Reward..,. .......,,..,... •...»♦*.- 2100-2104 SUMMARY OF CONTENTS. SEOTIOlfS Chap. III. Carriage of Property ^ 2110-2155 Akt. I. General Definitions 2110 II. Obligations of the Carrier 2114-2121 ni. Billof Lading 2126-2132 IV. Freightage 2136-2144 V. General Average 2148-2155 CSAT. rV. Carriage of Messages 2161, 2162 V. Common Carriers 2168-2209 Abt. I. Common Carriers in General 2168-2177 II. Common Carriers of Persons 2180-2191 III. Common Carriers of Property 2194-2204 IV. Common Carriers of Messages 2207-2209 TnLEVrn. Trust 2215-2289 CH.iP. I. Trusts in General 2215-2244 Art. I. Nature and Creation of a Trust 2215-2224 II. Obligations of Trustees 2228-2239 m. Obligations of Third Persona. 2243, 2244 Chap. II. Trusts for the Benefit of Third Persons 22r)0-2289 Art. I. Nature and Creation of the Trust 2250-2254 II. Obligations of Trustees 2258-2263 III. Powers of Trustees. 2267-2269 IV. Rights of Trustees..... 227.V2275 V. Termination of the Trust 2279-22S3 VI. Succession or Appointment of New Trustees 2287-2289 TrruJlX. Agency 2205-2389 Chap. I. Agency in General 22')5-2356 Art. I. Definition of Agency 229.5-2300 II. Authority of Agents 2304-2326 m. Mutual Obligations of Principals and Third Persons. . . 23:50-2339 IV. Obligations of Agents to Third Persons 2342-2345 V. Delegation of Agency 2349-2.351 VL Termination of Agency 2355, 2358 Chap. IL Pwrticular Agencies 2302-2.389 Art. L Auctioneers 2362, 2363 n. Factoi-3 2367-2369 III. Ship-masters and Pilots 2373-2385 IV. Ships' Managers 2388, 2389 TXtusX. Partnership 2.305-2520 Chap. I. Partnersliip in General 2395-2418 Art. I. What Constitutes a Partnership 2395-2397 IL Partnersliip Property 2401-2406 in. Mutual Obligations of Partners. 2410-2413 IV. Renunciation of Partnership 24 1 7, 2418 Chap. II. General Tartuership 2424-2471 Art. I. Wliat is a General Partnership 2424 IL Powers and Authority of Partners. 2428-2431 ni. Mutual Obligations of Partners 243.V2438 IV. Liability of Partners 2442-2445 V. Termuiation of Partnership 2449 2454 VI. Liquidation 2458-2462 VII. Of tlio Use of Fictitious Names 2460-2471 ,Chap. ITL Special Partnership 2477-2510 Art. I. Formation of Partnership 2477-2485 II. Powers, Rights, and Duties of the Partners 24S9-249« in. Liability of Partners 2500-2503 IV. • Alterati.iu and Dissolution 2507-2510 Chap. rV. Mining Partnerships 2511-2520 l^nut XI. LssDRANCK 2.V.'7-2768 CuAP. L In General 2527-2049 vii SUMMARY OF CONTENTS. noTtom Abt. I. Definition of Insurance 2527 IL Wliat may be Insured 2531-2534 III. Parties to the Contract 2538-2542 IV. Insurable Interest 2540-2558 V. Concealment and Representation 2561-2583 VI. The Policy 2586-2599 VII. Warranties 2603-2612 VIII. Premiums 2616-2622 IX. Loss 2626-2629 X. Noticeof Loss 2633-2637 XI. Double Insurance 2641, 2642 XII. Reinsurance 2G46-2649 Chaf. n. Marine Insurance 2655-2746 Abt. I. Definition of Marine Insurance 2655 n. Insurable Interest 2659-2665 IIL Concealment 2669-2672 rV. Representations 2676-2677 V. Implied Warranties 2681-2688 VI. The Voyage, and Deviation 2692-2697 VIL Loss 2701-2712 VIII. Abandonment 2716-2732 IX. Measure of Indemnity 2736-2746 Chap. III. Fire Insurance. 2753-2756 IV. Life and Health Insurance 2762-2766 Title XII. Indemnity 2772-2781 XIIL Guaranty 2787-2866 Chap. I. Guaranty in General 2787-2825 Aet. I. Definition of Guaranty 2787, 2788 II. Creation of Guaranty 279?-2795 III. Interpretation of Guaranty 2799-2802 rV. Liability of Guarantors 2806-2810 V. Continuing Guaranty 2814, 2815 n. Exoneration of Guarantors 2819-2825 Chap. II. Suretyship 2831-2866 Aet. I. Who are Sureties 2831, 2832 IL Liability of Sureties 2836-2840 III. Rights of Sureties , 2844-2850 IV. Rights of Creditors 2854 V. Letter of Credit 2858-2866 TiTLB XTV. Lien 2872-3080 Chap. I. Liens in General 2872-2913 Abt. I. Definition of Liens 2872-2877 IL Creation of Liens 2881-2884 m. Effect of Liens 2888-2892 IV. Priority of Liens 2897-2899 J. Redemption from Lien 2903-2905 Vi. Extinction of Liens 2909-2913 Chap. IL Mortgages 2920-2972 Abt. I. Mortgages in General 2920-2942 ri. Mortgages of Real Property 2947-2952 IIL Mortgages of Personal Property 2955-2972 Chap. m. Pledge 2986-3011 IV. Bottomry 3017-3029 V. Respondentia 3036-3040 VL Other Liens 3046-3060 VIL Stoppage in Transit 3076-3080 TlTlJE XV. Negotiable Instruments 3086-3261 Chap. I. Negotiable Instruments in General 3086-3161 Aet. L General Definitions ,^- ,.... 3086-3095 viii SUMMARY OP CONTENTS. tKcnora Abt. II. tnteqiretation of Negotiable Instrumenta ./».»,. 3099-3104 III. Indorsement 310S-3125 IV. Presentment for Payment 3130-3137 V. Dishonor 3141-3151 VI. Excuse of Presentment and Notice 3155-3160 VII. Extinction 3164 Chap. n. Bills of Excliange 3171-3238 Abt. I. Form and Interpretation of a Bill 3171-3177 II. Daysof Grace 3181 m. Presentment for Acceptance 3185-3189 IV. Acceptance 3193-3199 V. Acceptance or Payment for Honor 3203-3207 VI. Presentment for Payment 3211-3214 VII. Excuse of Presentment and Notice 321 8-3220 VIII. ForeignBills 3224-3238 Chap. III. Promissory Notes 3244-3248 IV. Checks 3254,3255 V. Bonds, Banks, Notes, and Certificates of Deposit. 3261 TitlkXVL General Provisions •••»., 3268 DIVISION FOURTH. [Secs. 3274-3543.] PabtI. RELIEF 3274-3423 Title I. Relief in General 3274, 3275 II. Compensatory Relief 3281-3360 Chap. I. Damages in General 3281-3294 Art. I. General Principles 3281-3283 II. Interest as Damages 3287-3290 m. Exemplary Damages 3294 Chap. II. Measure of Damages 3300-3360 • Art. I. Damages for Breach of Contract 3300-3319 II. Damages for Wrongs 3333-3341 III. Penal Damages 3344-3348 IV. General Provisions 3353-3360 TxtlbITT. Specific and Prkventivk Relief 3366-3423 Chap. I. General Principles 3366-3369 II. Specific Relief 3375-3414 Art. I. Possession of Real Property 3375 II. Possession of Personal Property 3379-3380 III. Specific Performance of Obligations. 3384-3395 IV. Re-vision of Contracts 3399-3402 V. Rescission of Contracts 3406-3408 VI. Cancellation of Instruments 3412-8414 Chap. IIL Preventive Relief 3420-3423 Part U. SPECIFIC RELATIONS OF DEBTOR AND CREDITOR 3429-3473 TitleL General Principles 3429-3433 II. FRAODCLENT iN.STRnMENTS AND TRANSFERS 3439-3442 III. Assignments for tub Benefit of Creditors 3449-3473 PabtIIL NUISANCE 3479-3503 Title I. G kneral Principles 3479-3484 II. Pu BLio Nuisances 341)0-3495 III. Pkivatk Ndisances 3501-3503 PabtIV. maxims of JURISPRUDENCE ^^ 3509-3543 iz CIVIL CODE. An Act to Establish a Civil Code^ [Approved March 21, 1872.] TITLE OF THE ACT. 1. Title and divisions of this act. Section 1. This act shall be known as The Civil Code or the State of Cazj- roBNiA, and is in four divisions, as follows: I. The First Relating to Persons 25 II. The Second to Property C54 III. The Third to Obligations 1427 IV. The Fourth Contains General Provisions Relating to the Three Preceding Divisions 3274 The four codes are four statutes; each is amendments to any section thereof are to be a single act: IJarle v. Board of Education, 55 regarded as amendments of the wliole act: C?. Cal. 4S9. The whole code is to be construed P. R. R. v. Sharkd/ord, 63 Id. 2G1. together as in the case of a single statute; and Act how cited: See sec. 21, post, PRELBHNARY PROVISIONS. 2. When code takes effect. Sec. 2. This code takes effect at twelve o'clock, noon, on the first day of January, eighteen hundred and seventy-three. Effect of codes generally: See sees. 4478 ing that session are repealed, except acts amend- et seq. of the Pol. Code. atory of or carrying into effect the codes: Mitch' Laws passed at the same session at ell v. Cronhn, 4(5 Iil. 97. which the codes were adopted prevail over Similar provision in other codes of Cal- the codes: Ddhcockw Goodrich, 47 Cal. 4SS; and ifonaia: See sec. 2 thereof. eec Exparte A'^civtou, 53Ii\. 512. But under sec- Effect of this code: See subsequent soca. tion 381)1 of the Political Code, declaring that 3-19, inclusive, and see those sections and tha with respect to provisions concerning the reve- notes tlicreto r.s found in tiie Pol. Code, nue the code is to be considered as if passed on Publication of the codes: See sec. 4494 ol the last day of the session, all acts passed dur- the Pol. Code. 3. Not retroactive. Sec. 3. No part of it is retroactive, unless expi'essly so declared. .Retroactive effect: ^cq supra, note to sec- active oi)eration must often reat on constmctiotv tion 2. Not only is the code to have a future as in applying a measure of '^.amagea to con- operation, except where otherwise enpressly version committed before the measure was declared, but amendments to the code receive provided: Tullet/ v. Tranor, 53 Cal. 274; or a similar construction, and are not retroactive: determining what rate of interest prevailed C. P. P. R. V. Shackelford, G'i Cal. 201; Sharp upon theadoptiou of the code: Dunnev.Maslick, V. Blankenship, 59 Id. 268; Uibtniia S. d; L. 50 Id. 244. Boc. V. Jordan, 56 Id. 297. Cileil and applied to requirements in sections What is an express declaration of an inten- 1493 and 1500 of the Code of Civil Procedure, tion to give a section or amendment a retro- in regard to presentation of claims against Civ. CJODB— 1 I 14-6 PRELIMINARY PROVISIONS. decedents, in Hibemia S. tt L. Soc. v. Hayes, adverse holding: Sharp v. BlankensMp, 59 Id. 56 Cal. 297; so also in regard to the amend- 288; C. P. R. R. Co. v. Shackelford, G3 Id. 2G1. inent to section 325, Code of Civil Procedure, Impairing vested rights: See sec. 8 of the requiring payment of taxes to make a good Pol. Code, and note. 4. Construction of thvi code. Sec. 4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes ithe law of this state respecting the subjects to which it relates, and its pro- ■ visions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice. This section changes the common-law through all the provisions of this code. The ; rule which was in force in this state prior to the adoption of the codes: IlotaUng v. Cronlse, ■ 2 Cal. CO; People v. Biiskr, 11 Id. 215; Turner V. Tuolumne Water Co., 25 Id. 397; Piiia v. . Peck, 31 Id. 359. See also the construction of . this section in Estate of Appel, 5 West Coast Rep. 518. The explanation for this departure from the common-law rule is found in the following - statement by the code commissioners, appended as a note to section 4 of this code: "How- ever sound may be the arguments in favor of this rule [the old rule] when applied to ordi- nary acts of the legislature, it is apparent that it would be improper to apply it in all its severity to a system of laws intended, in a preat .measure, to take the place of the common law, -and having in view, as its leading object, the . furtherance of justice and a disregard of techni- . cal strictness. The i)rovision3 of such a s^'stem ■ought to be construed in the same manner and with like force and efifect as they would be were the pi-inciples enunciated resting in the un- • •written law; and it was to this end that the sec- liou lias been made a part of each of the codes." So alio in their note to this same section, as found ill the Code of Civil Procedure, the code commissioners, referring to the rule of strictly construing penal statutes and statutes i:» dero- gation of the common law, say: "Without stopping to inquire Iiow far this principle is applicable to statutory provisions prescribing, for example, the time within which a particu- •-dar act must be done (which was the case in the instance referred to), it certainly sliould not apply in all its severity to a system of regula- .tion having in view as its sole object the fur- therance of justice and a disregnrd of technical strictness. This is the great principle running chief design and the merit of the code, if it has any, is its attempt to make the attainment of justice the paramount object, and the use of forms mere auxiliaries, which, when they come in conflict with the ends of justice, are to be relaxed. This section was intended to obviate much of the difficulty under which courts have labored, and to render the code, instead of a rigid and unbending statute, as construed by some, a rule of procedure susceptible of easy adapation to the purposes of justice which it alone has in view. See the opinion of Justice Cope, Jones v. Steamship Cortes, 17 Cal. 487; see also Lucas, Turner <£• Co. v. Payne d; Dewey, 7 Id. 92; Wardx. Severance, Id. 126; Chamber- lain V. Bell, Id. 292." A liberal rather than strict construction is also demanded by the Penal Code, section 4, evidencing the general design of the commis- sioners to abrogate the old rules of strict con- struction: Ex parte Gutierrez, 45 Cal. 429; People V. Mortimer, 46 Id. 117; People v. Soto, 49 Id. 07. But statutes in contravention of the common law are not to be extended hy construc- tion, as it is not to be presumed that the legis- lature intended to make an innovation on the common law farther than the case absolutely requires; Brown v. Fifield, 4 Mich. 322; John- son V. Jlahn, 4 Xeb. 144. A statute in aflBrmance of the common lavT is to be construed as was the rule by that law: Baker v. Baker, 13 Cal. 87. "With view to promote justice Applica- tions of this clause: Paige v. Carroll, 61 Cal. 215: S. C.,Id. 211. Construction of codes -with relation to eaoh other, and reconciling conflicts between titles, chapters, and articles: See sees. 4478 et seq. of the Pol. Code. Sec. 5. The provisions of this code, so far as they are substantially the ■same as existing statutes or the common law, must be construed as contiuua- itions thereof, and not as new enactments. New eaaotments. — The codes were Iraincd ■with a view to a complete system of law, de- signed, however, to disturb the existing state •of things as little as possible, and not to impair vested rights. The foregoing section is one of several expressive of this design. It has been considered in connection with the snccee;Uug section with reference to the effect of the codes wpon tenure of office: Pnople v. Bisvell, 49 Cal. 407, the inspector of gas meters' case. 6. Actions, etc., not affected. Sec. 6. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisiona. Ravival by repeal. — "The Political Coda contains a general provision that the repeal of existing statutes aliall not revive any law here- tofore repealed or suspended, nor any otfice heretofore abolished, and tlierefore such a pro- vision has not been incorporated herein: See People V. Cray croft, 2 Cal. 243:" Code Com- missioners' note. The section referred to is section IS of that code. PRELIMINARY PROVISIONS. §8 The corresponding section in the Political Code and Code of Civil rrooediire reads as follows: "Si:c. 8. No action or proceeding com- menced before this code takes eifect, and no riglit accrued, is affected by its provisions, but the proceedings therein must conform to the requirements of this code as far as appli- cable." Effsct of codss on pending action. — The 'sufficiency of proceedings taken bef(jre the code went into operation must be determined l)y the law in force tlien, and by no other rule: Caul- fteld V. Doe, 45Cal. 221, 223; Hancock \\ Thorn, 4G Id. Gl3. The procedure upon a motion for a new trial, notice of which had been given before January 1, 1873, was rc([uired to be accorditig to the practice act tlien in force: Macy V. Davila, 48 Id. G47; but the procedure upon such motion where the notice had been served after the codes went into effect was determined to be that prescribed by the code: Kelly V. Larkin, 47 Id. 58. A similar con- struction has been given to the insolvency law of California of 1880. Strutven v. Creditors, 02 Id. 45, decides that although the proceedings in insolvency may have been commenced umler the act of 1832, yet all pleadings liled after the passage of the new act must conform to its requirements. The evident object of the section is, not to interfere with any vested rights, and to render uniform so far as may be the course of procedure in pending proceedings. McMlnii V. i^MN-, 31 Id. 122, illustrates what this section was designed to obviate. The act repealing the forcible entry and detainer laws was by a .subsequent enactment altered so as not to affect actions commenced under the repealeil law. As a general rule, tlie procedure is gov- erned by the new law: Bishop's Written Law, sec. 171). Vestod riglits. — It is an admitted principle that vested rights cannot be destroyed or im- paired; but to state a precise rule, defining what rights are vested, is a task of some dilh- cuUy. The various decisions present illus- trations of what have fallen within the mean- ing of the term, but few have attempted a comprehensive definition. As Cooley says: " In its application as a shield of protection, the term 'vested rights' is not used in any narrow or technical sense, or as importing a pou'cr of legal control merely, but rather as implying a vested interest which it is right and equitable that the government should recog- nize and jirotect, and of which the individual CDuld not. be deprived arbitrarily without injus- tice:" Coolcyon Const. Lim.3J8. The following gcner.d statement is believed to he supported by adjudg ;d cases: To render a law ob.ioxious to the obj ction that it impairs vested rights, it is not necessary that tlu act of the legisla- ture should i.nport an actu..l destruction of the right. The test is not so much in t!ie extent of the change as in the character thereof. If the act postpones or accelerates tlie period of perfoiTuance of a contract, imposing conditions not expressed therein, or dispensing witli any of those stipulated, it is within the jiroliibi- tion: On en v. Bidille, 8 Wlieat. 1; lUcCrarken V. llayward, 2 How. COS; Planters' Bank v. Sharp, G Id, 301; Wa'ker v. Whitehmd, IG Wall 314; Lap^ley v, Bra.shear.% 4 Litt. 47; Ednioiuion v. Ferjtvson, 11 Mo. 344; Winter v. Jones, 10 Ga. 190; Toansend v. Townsend, J Peck. 1 ; Bohinaon v. Magee, 9 Cal. 81 ; People v. Pond, 10 Id. 5G3; McAvley v. Brooks, IG Id. 11. A legislative grant cannot be impaired by a subsequent act of the legislature: Jennison v. Planters' Bank, 23 Ala. 1G8; Tenn. d: (,'. P. U. Co. V. Moore, 30 Id. 371; Montgomery v. Kas- sou, 10 Cal. 189; O'rogan v. San Francisco, 18 Id. oOO; Trustees v. Bradbury, 2G Am. Dec. 515; and this is so whether the grant be to an individual or to a corporation. But the fact that subsequent legislation has diminished the value of a franchise does not make the act liable to the objection being discussed: Charles Iliver Bridqe v. Warren Bridge, 11 Pet. 42'J; Curtis V. Whitney, 13 Wall. 08. Tbe legislature cannot revive a claim barred Iiy the statute of limitations: Wright V, Oakley, 5 Met. 400; Battles v. Forbes, 18 Pick. 532; Kinsman v. Cambridge, 121 Mass. 558; Rockport v. Wulden, 54 N. H. 107; At- kinson v. Dunlap, 50 Me. Ill; Davis v. Minor, 1 How. (Miss.) 183; Jlicks v. Steigleman, 49 Miss. 377; Chandler v. Chandler, 21 Ark. 95; Bradford v. Strine, 13 Fla. 393; Coady v. Reins, 1 Mont. T. 424; Baldro v. Tomlie, 1 Or. 170; Rogers v. Handy, 24 Vt. 620; Wires v. Farr, 25 Id. 41. A statute allowing a creditor to reileem at any time within two years after the sale under a mortgage made prior to tiie pasb- ing of tlie statute is void: Orantly v. Eicing, 3 Hi and Loan Soc'ety v. Thompson, sitpra. day of t!ie date, or from a certain act or event, Excluding holidays. — As to the perform- thc day of the date is to be cxchulcd, unless a ance of secular acts fal-ing on a hobrlay, see dilTerent intention is manifested." Tlie same note to next section. Intervening holidays are rule 13 adopted miU.'sh v. Mai/hrw, 51 Cal. 514; iS'/i-'-e/.^v. ,9eWe«,2\Vall. 100; (/'Coniiorv. Towns, 1 Tex. 107; Gooilev. Webb, o2 Ala. 452; llandle>i Cnuninf/ham, 12 Busli, 4v02. In Jlish v. J/a?/- counted as part of the computed time. JShould the law require tlic publication of a notice daily for ten days, Sundays excepted, tin exception in favor of the Sunday relates to the daily pub- hew, siipra,aca.se arising under section 11 10 of lisliia,' of the notice, and not to the period of tlie Cotle of Civil Procedure in re^tanl to con t Wash. 209; Martin v. Hunter's Losiee, 1 Wlieat. .320; Mayor v. Winter, 29 Ala. 051; Philadel/'hia R. R. v. CcUawlt^a R. R. Co., 53 Pa. St. 20: Green v. Welln; 32 Miss. 050. But if a technical word is manifestly used in an untcclinical sense, the court will give it '.lie meaning intended I y the party using it: C. P. R /.'. V. Z>Va/, 47 Cal. 151; Clark\. City of Ulna, lSr.arb. 151; /:obin.i»n v. VariieH. 10 Te_x. 382. Annsistentlv reconciled: McCool V. Smith, 1 Black, 439; Wood v. United States, IG Pet. 342; Clay Co. v. Society for Savings, 104 U. S. 579. The general design undertaken by the codes, to revise the laws, gives room for the appli- cation of another principle in respect to con- struing legislative enactments, wliich is, ia effect, eml)odicd in tlie above section. It ia recognized that a new statute, revising the whole subject-matter of an old one, and evidently in- tended as a substitute for it, will operate as a repeal of the former law, although it is not so Code operating as a repeal of prior statutes. — See application of this section to power to give other punishment for contempt than as prescribed in this code: Johnson, v. Su- perior Court, G3 Cal. 578; and to sec. 1881, Code Civ. Proc, in regard to awife's testifying against her husband: People v. Langtree, Gl Iil. 256. The code <;ommissioners quote the general prin- ciple of repeal by implication, as laid down in Perri/ v. Atnes, 2G Id. 382, and stated herein- after, and then say: "In view of this decision, the language of the text was necessary, rcj)eal- ing all former laws on the same subject, whether consistent or not." Statutes continued in force: See sec. 19 of the I'olitical Code and Penal Code, and Stat- utes in Force. Repeals by implication. — It being the de- sign of thecoditiers to frame a new systemof law, as aiipears from the note to section 4 of the Po- litical Code, the effect of the code upon existing laws must be determined accordingly; yet pre- vious sectionsof these preliminary provisions dis- close an intention not to disturb existing rights, and section 20 must be construed with reference to these sections; the last clause of section 20 de- clares the same thing. The whole provision ia but a formal statement of a well-settled rule in the construction of statutes, though the repeal of stulutea by implication is not favored by the courts: Gordon v. People, 44 Mich. 485; Peo/de V. llVWpr, 3 Neb. 323; People v. Quig'i, 59 N. Y. 83, 88; People v. Palmer, 52 Id. 82; Jiogan V. Gnigon, 29 Gratt. 709; Stale v. Sev- erance, .55 Mo. 378; W. W. Co. v. Burkhart, 41 Ind. 364; Merrill v. Gorham, 6 Cal. 42; Sco- Jield V. White, 7 Id. 401; People v. S. F. A S. J. li. li. Co., 28 Id. 256; Buckingham v. Steuben- expressly stated: Treadwell v. Yolo Countq, 63 i2i PRBLIMINARY PROVISIONS. Cal. 5G3; Stirman v. Stale, 21 Tex. 734; Cul- ten V. Stale, 42 Conn. 55; Cam] Ml v. Ccuie, 1 Dakota, 17; Swavn v. Dark, 40 Misa. 268; Struus.-^ V. //ci.>s, 48 Md. 292; Enoin v. J/oore, 15 Ga. 3G1; Conley v. Calhoun, 2 W. Va. 41C; S'<(x<(? V. /?of/cr.9, 10 Kev. 319; Norrm V. Crocker, 13 How. 429; 6''«J(:p(/ ^'a^rs v. /iarr, 4 Saw. 250; t/wi/'^tZ 5/a/.e8 v. Tyiien, 11 Wall. 05; Lelqhton v. MW^-cr, 9 N. H. 59; Common- wealth V. Khnball, 21 Pick. 37G; Dowdell v. fi-fa/e, 58 Iiul. 333; JIayes v. A'^a/r, 55 Iil. 99; Lonijlois V. Longloix, 48 Id. GO. Judge Field, in Miirdork v. Memphm, 20 Wall. 590, com- menting upon the effect of the second section of the°act of February 5, 18G7, upon the twenty- lifth section of the judiciary act of 1789, after statinfj that it waa manifest that congress intended "by the latter statute to revi.se t!ie entire matter to whicli tliey both had reference," said: " We are of <>])inion tliat the new law, embracing all that was intended to bo preserved of the old, omitting what was not so intended, became complete in itself, and re- pealed .ill other law embraced within it." And so also P('0))le v. Lon Me, 40 C"al. 35.S. The repeal of a repoaliug aot does not re- vive the original act: People v. Hunt, 41 Cal. 435; ami sec. 328, Pol. Code. And similar pro- visions arc found in the statute law of other states: Sullivanv. People, 15111. 233; Tallainon V. Curilena'i, 14 La. Ann. 50'J; W'Ukouaki v. Wit- kouxk!, 10 Id. 2.'«; Milne v. JInh>'r, 3 McLean, 212; \milh v. llo:it, 14 Wis. 252. Vested rights: See sec. 6, and note. 21. This act, how cited. Sec. 21. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as " The Civil Code," adding, when necessaiy, the number of the section. Title of thp act: See ante, sec. 1. jects of the respective codes, will b© found Id "These pieliminary provisions," say the ei*ch," eomoussioaera, "only varying to suit the sub- 8 Div. I, Part I.] PERSONS. §§25-29 DrVISION FIRST. Paet I. Persons 25 II. Personal Pights 43 III. Personal Relations ^ , , 5.) IV. Corporations 283 PART I. PEPtSONS. 25. Mbiors, who are. Sec. 25. IMinors are: 1. Males under twenty-one years of age; 2. Females under eighteen years of age. At commcn lavr the ages of male antl female may be betrothed or given in marriage; nt nine were (lilTv-TCiit for different purposes. "A male is entitled to dower; at twelve is at years of at twelve yean old may take the oath of allc- maturity, and therefore m.iy consent or dis- giancc; at fmnteen is at years of discretion, agree to marriage, and if proved to have suffi- aud tlicreforc may consent or disagree (o mar- cient discretion, maj' beqncalh her personal riage, may choose his guardian, and if his dis- estate; at fourteen is at years of legal discre- cretion be actually proved, may make his tes- tion, and may choose a guardian; at seventeen tamentof luj personal estate; at seventeen may may l^e executrix; and at twenty -one )nay dis- be an executor; and at twenty-one is at his own pose of herself and her lands. So ihat the full disposal, and may alien his lands, goods, and age in male and female is tweuty-une years:" chattels. A female also at seven years of age Bla. Com., Cooley's ed., *4G3. 26. Periods of minority, lioio calculated. Sec. 2G. The periods specified in the preceding section must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minorit}'. Full ago at common lav/ w^as coraoletsd 1870. lie has the whole of that day in which to commence actions ;is an adult, and an action concerning realty must be lirou"ht, iiithe latest, on the icn'ch day of April, 1881: Gaiuihl v. tSoher, 4 West Coast Rep. Gu9. "on th J day preceding the anniversary of a person's birtli:" Bla. Com., Cooley's cd , *40'1. Under the above section, a person born on the eleventh day of April, 1835, bLComcs of ago the first minute of the eleventh day of April, 27. Adults, xoho are.. Sec 27. All other persons are adults. 28. Contrails of minors. Repealed by act approved March 30, 1874; Amendments 1S73-4, 182; took ettcet July 1, 1874. 29. Unborn child. Sec 29. A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subse- quent birth. An infant en ventre sa mere, or in the inolher'.-j \\ oinb, was supposed, at common law, to bo born for ninny purposes. It was capable of having a legacy or a surrender of a copy- hold estate inaio to it. It might lia\e a guar- dian i.>»oignid t ) it, and it was enabled to have an estate liiniLe I to its use, and afterwards to take by tucli liuiitatioii as if it weio actually born: Bla. Com.. Cooleylsed., 130. "Itisnow arulo establisl.fd beyond doubt, and rccog- nucd by leudmg text-writers, tlhit a child en ventre la mere, for purposes of inheritance or where its benefit ij to he f .. tiicrcd, u regarded as ill e-tsr, and ns capable of la ;ing as t'lOUL^h born at the time: Bingham on Inra:icy, 104; 2 Ked- licld on Wills, 3d cd., G8, nole; 4 Kent's Com. 412, note; Tyler on Infr.ncy, 2 I cd., 22.1; 2 Jarm. on Wi Is, 3th Am. ed., 740; M'a'/w v. Uo.lxon, 2 Atk. 1 13; Doe d. Clarb- v. C arlci', 2 il. Black. 3j0; Clarke v. Blake, 2 Bro. C. C. 320; S. C, 2 Ves. jun. G73; Rawlins v. Rawlins, 2 Con. Ch. Cas. 425; ScaUerwcod v. Edtje, 1 Saik. 229; Snow §§ 30-»i PERSONS. Pnr.I, 95); if it is subsequently bom alive, and so fj-r advanced towards maturity as to be capable of living: lloiie. v. Van Srhairb, /far/ier v. Archer, Hvpra; and a cbild born within six montba is presumed incapable of living: jl/arficllis v. ThaJhimer, And Beck, in bis Medical Juris- prudence, vol. 1, 12th ed., p. 407, says: 'As a general rule, it seems now to bo generally con- ceded that no infant can be born viable, or capable of living, until one hundred and fifty days, or live months, after conception. Tliere are, however, cases mentioned to the contrary. In such cases, we should recollect that females arc liable to mistakes in their calculations, and that conce[ition may take place at various times during the menstrual intervals, and thus vary the length of the gestation. Such early births ai-e at the present day very generally and very properly doubted.' Then, after a review of the cases, he says: ' We may, from these obser- vations, conclude that between five and seven months there have been instances of infanta living, though most rare; and even at seven, the chance of surviving six hours after birth is much against the child.' The same views have been ailopted by other writers on medical juris- prudence: See Chit. Med. Jur. 40G:" Harper V. Archer, 43 Am. Dec. 474, in note. See also sees. 1337 and 1339, posthumous children tak- ing under will. V. Tucker, 1 Sid. 153; Trover v. Butt.% 1 Sim. & St. 181; Lomj v. Blackall, 7 T. R. 100; Millar V. Turner, 1 Ves. sen. 85; Burnet v. Mnnn, Id. 15G; Thi'lluxson v. Wooilford, 4 Ves. jun. 227; S. C, 11 Id. 112; Beak v. Beale, 1 P. Wms. 244; Northe>i v. Strange, Id. 340; Biirdet v. Ilopeyood, Id. 4SG; Crook \. Hdl, L. R., 3 Ch. Div. , 773; Pearre v. Carringtov, L. R., 8 Ch. App.,9J9; CWx/jVWv. .S'i.-rescribed doclaie liis dissent to his contract. The prevailing rule in regard to disiifiirming a contract is: 1. Convey- ances of land Ijy an infant cannot be disaffirmed, avoided, conclusively, until after the infant has attiiined the age of majority: Poo/ v. Staf- ford, 7 Cow. IS.",; 8. C, 9 Id. 020; Bool v. Mix, 17 Wend. 119; Matlheicxon v. Joliu-^on, 1 Hoir. Ch. 500; /las/lnr/s v. Dollarhide, 24 Cal. 195; Dunton v. BroKui, 31 Mich. 182; Dixon v. Aferrill, 21 Minn. 190; Bozemnn v. Broxvninfj, 31 Ark. 304; Walhve. v. Latham, 52 Miss. 291; 2. The pcrsoniJ contracts of the minor may be ■avoided eitiicr before or after arriving at age: Slaffurd V. Uoof 9 Cow. 020; Shipman v. Ilor- ton, 17 Conn. 481; Carr v. Clovuh, 20 N. II. Cresivgerw Welsh, 15 0luo, 150; lloylev. Slowe, 2 Dev. & B. L. 320; Dixon v. :derritt,2\ Minn. 190; Allen v. Poole, 54 Miss. 323. This is espe- cially so where coupled with express notice of disaffirmance, and followed by tlie entry of the second grantee: Prout v. 11 '/Yr;/, 28 Mich. 104; l^ifjijs V. Fisk, 04 Md. 100. Kotice of disaffirn.- ance, given in writing, will sulllcc: Seranlon v. S/eicai-t, 59 Ind. 09, 92; especially if tliis be consistently followed up I y acts of ownership, or sttch as indicate a claim of title adverse to the transaction of infancy: Turnson v. Chambly, 88 III. 378. Commencing proceedings to set £side th.e transaction is a di.saliirmance: Gil'es- pie v. Bailey, 12 W. Va. 70; Baier v. Kennett, 54 Mo. 82. In the case of mere personal con- tracts, the avoidance may be liy any act clearly demonstrating a renunciation of the contract: See note to Tucker v. Moreland, 1 Am. Lead. Cas. 258. DisaSrmance -witliiu reasonable time. — What is a rcasomiblu tin,e wit!ii:i the meaning of a j)rovibion similar to the California code was 280; Wilisx. Tirambly, 13 Mass. 204; Cnffmy declared to depend upon the circumstances of V. lianden, 110 Id. 137; Bailey y. Baraberger, 11 B. Mon. 11.3. The language of the above section in terms gives to (lie infant the power to disaffirm a con- tract before his majority; even contracts relat- ing to realty. To tl.is extent, therefore, i.4 the code a departure from the general ride on tiie subject. Avoidance, hov; Scanhn v. Cobb, 85 111. 200; Wilder v. Weakley, 34 Ind. 184; Jackson v. Ki.ig, 15 Am. Dec. 30t). in note; S. C. 2^. Bank v. Moore, 78 Pa. St. 414. V7hcro the insanity is laiown to the other party to the contract, or where lie has informa- tion such as would lead a prudent man to such knowledge, the contract is invalid: Lincoln v. Buckmanter, 32 Vt. 052; Henry v. Fine, 23 Ark. 417; Matthie-saeu Co. v. McMahon, 38 N. J. L. 530; Lancaster etc. Bank v. Moore, 78 Pa. St. 4u7. Afi:2r inquisition of lunacy, and judicial determination that the person is a lunatic, bia contracts are void: Filzliinjh v. Wilcox, 12 Barb. 235; Wadsworth v. Shfrnian, 14 Id. 100; Pearl V. McHom'll, 3 J. J. Marsh. 058; McCreifjht v. Aiken, Ilico, 50; Leonard v. Leonard, 14 Pick. 280; EUton v. Ja.-per, 45 Tex. 409. And the as.sertion that the contract was made during a lucid interval throws upon the person making such assertion the burden of proving s.inity and competency at the time tlie act was done: JJarden v. Hays, 9 Pa. St. 151; Emery v. Iloyt, 40 111. 258; Menkins v. Lifjht- Tier, 18 Id. 282; Case of Cochran'. ■) U'Ul, 15Am. Dec. 1 16, and note. Liability for necessaries. — Unsoundness of mind does not relieve one from liability for necessaries: IJallelt v. Oabs, 1 Cubh. 296; Kendall v. May, 10 Allen, 59; La Rue v. Gil- kyson, 4 Pa. St. 375; Lancaxtir Bank w Moore, 78 Id. 407; Ex parte Northinr/ton, 37 Ala. 496; San-yer v. Liffkin, 56 Me. 308; Van I loon v. llann, 39 N. J. L. 207; D'irby v. Cabanne, 1 jMo. App. 127; Henry v. Fine, 2.'i Ark. 417; Tally V. Tally, 2 Dev. & B. E(]. 385; Richard- son V. Stronij, 13 Ired. L. 100; Snrle-i v. Pipkin, 05 N. C. 513; McCormick v. Littler, 85 111. 02. Sometimes this liability is said to be an im- plied one, on the quantum meruit; it is so inti- mated in section 38, supra, and is so deter- mined in Jlcdlelt v. Oake-i, 1 Cush. 296; Ex jxirte Northincjton, 37 Ala. 490; Juries v. Pip- kin, 09 N. C. 513. In other cases it is said that express con- tracts of lunatics for nficessaiies at fair prices are binding: L'ichardfr .se confer a. j)rlma facie right "f action, and is not 7)er se a prima facie wrong." Foi' examples of special damage, or actual damagti as it is called by the code, see 3 Sutherland on Dam. 662; and Townshend on Slander and Libel, sees. 197 ct seq., where a great vari- ety of cases are collected in which this ques- tion has arisen. Ju3tiajat:oa: See note to sec. 45, ante. To justify the charge of a crime, "the defendant is required to prove the plaintiff guiliy of the crimes imputed to him by the slanderous words, by testimony sufficient to convict the plaintiff of those charges on a criminal trial:" Merk v. Gelzhaeuser, 51 Cal. 631. Variance. — lb is not necessary to prove that the slinderous words were spoken on the pre- cise day alleged in the complaint: Xorris v. EHiott, 39 Cal. 72. Nor is it a fatal variance that the libelous words were used of the plaintilF and another; the injury is several: Pobhiett V. McDonald, 3 West Coast liep. 787. Slander of title: See 1 Am. Lead. Cas. *105; McDaniel v. Baca, 2 Cal. 320; Swan v. Tappan, 5 Cush. 101; Townshend on Slander and Libel, sec. 1.30. A case involving this subject arose in E Iwards v. Burris, 60 Cal. 157, and the requi- sites to the maintenance of this action were there declared as follows: "Unless, therefore, a plaintilF shows title or interest in the property, falsehood and malice in the utterance of slander concerning it, and an injury to the plaintiff, there is no cause of action." And such interest must be set out in the complaint: Id. 47. What publications are privileged. Sec. 47. A privileged publication is one made: 1. In the proper discharge of an official duty; 16 Pa»t n.] PERSONAL RIGHTS. 141 2. In any legislative or judicial proceeding, or in any other official proceed- ing authorized by law; 3. In a communication, without malice, to a person interested therein, by ona "who is also interested, or by one who stands in such a relation to the persoDr interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to giv&- the information; 4. By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 184; took effect July 1, 1874.] Privileged publioation. — In order to hold judicatories: Hoar v. Wood, 3 Met. 193; York a person responsible for making any one of the above privileged publications, it is necessary to prove express malice. While tlie law will exempt a person from liability for words spoken or written uuder circumstances which call for Buch expressions, yet to take advantage of like circumstances to vent private ill-will, and design to injure, justly makes the person so acting answerable for what he does: See Wilson V. Fitch, 41 Cal. 383, and the various cases vifra in the course of this note. As is said in Wrijht V. Woodijate, 2 Cr. M. & R. 573, the proper meaning of privileged communication is that tiie occasion on wliich the communication was made rebuts the inference prima fane arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that tiiere was malice in fact, that the defendant \\ as actuated by motives of personal sjjite or ill-will, iudependent of tlie occasion on ■which the connniinication was made. Subd. 2. LogislativG or judicial prooeed- Ings. — Le'iidtire pweediiiys are privileged: Cnffinv. Coffin, 3 Am. Dec. 189; S. C, 4Mass, 1; Tuwnsheml on Slander and Libel, sec. 217. J adicia' proceedings. — Says the supreme court of New York, in Mar^h v. Eitsujorh, 50 N. Y. 311: "The law is well settled tliat a counsel or party conducting judicial proceedings is privi- leged in respecb to words cr wriLmgs, used in tlio course of suc'.i proceedings, reflecting inju- riously upon others when such words and Pecme, 2 Gray, 282; Farnsivorth v. Storrs, ^ Cush. 412; Mayo v. Sample, 18 Iowa, 300; /Jolt v. Pardons, 23 Tex. 9; Ilastiyu/s v. Lusk, 22 Wend. 410; Milam v. Burnsides, 1 Brev. 295;^ Forbes v. Johnson, 11 B. Mon. 48; llosmer v. Lovdand, 19 Barb. Ill, Witnesses are protected from action for words spoken in giving testimony when pertinent and responsive: Terni v. fdiows, 21 La. Ann. 375; Perkins v. Mitchell, 31 Barb. 461; Smith \. Howard, 28 Iowa, 51; Barnes v. McCrate, 32 Me. 442. Subd. 3. Person interested in commu- nication. — A common instance of communica- tions being privileged when made by one to an- other interested party is the case of communica- tions of church members to the governing body complaining of the conduct of a brother member, being privieged are: J,'emi)ir/tou v. Cov/don, 13 Am.^Dec. 431; Brad.'nj v. Heath, 12 Pick. 163; Kleizer v. Syvimes, 40 Ind. 562; Ho't v. Par- sons, 23 Tex. 9; O'Donughue. v. .VcGovern, 23 Wend. 26; Dial v. /JoU^r, Ohio St. 243; r.nd see the note to Bodwell v. Osgood, 15 Am. Dec. 232; so also a report made by a committee of an Odd Fellows' lodge recommending the cxpul- feicm of a memljcr for perjury, is jirivileged: Kirkoatrick v. Exjle Lodije, 26 Kan. 331; sea alsn Slnirtlef v. Sleren.^, 51 Vt, 501; S. C., 31 Am. Reji. 638, and note. Generally one is protected who, without proof of actual malice, answers inquiries in the lionn writings are material and pertinent to the Jlde discharge of any legal, moral, or social question involved." And that counsel are not answerable for tiieir words spoken during the counu of a trial, although they \voul,l be ac- tionable elsewhere, if they are a;)plicable and pertinent t(^ t!;c suljjcct of inquiry: Hoar v. Wood, 3 Met. ID.]; //astings v. Liis/:, 22 Wend. 410; Moirer v. H'at^nn, U Vt. 536; Ping v. \V fleeter, 7 C iw. 725; Gilbert v. People, 1 Dcnio, 41; L^'sfer v. Thurmond, 51 Ga. 118. Yet if counsel "wantonly dejart from the evi- dence and point in issue, with an intent to injure the eharaeter of the adversary, wii^hont propriety or probable ground," he will be re- eponsible: Grni/ v. Pentiand, 2 Scrg. & R. 23; Gilbert v. /'co/.l'', supra. And consult Weeks on Attorneys, sec. 1 10; 14 Alb. L. .1. 433. A party i'i not oliargeable for v.hat be states in his pleadiuL's, if material and .stated without malice: L'unrn / v. Christ//, 30 Ohio St. 11.'); Jlill v. Mi/'s, 9 N. II. 14; Kidiler v. Parlhnrst, 3 Allen. 30;5; Wntson v. Moore, 2 Cush. 133; Marsh V. Elhirorth, 50 N. Y. 311. Ertent of th's privilege. — This privilege ex- tends not merely to regular courts of justice, but to all investigations before magistr.ates, referees, municipal bodies, and ecclesiastical Civ. Code— 2 17 duty: Long v. Pe'ers. 47 Iowa, 239; Sund^rUn v. Brad.-itreet, 40 N. Y. ISS; Slate v. Lousda'e, 48 Wis. 348. For a collection of decisions bearing on the liabi.ities of mercantile agen- cies for the reports they give, see U liar.on'3 note in 18 Fed. Keo. 216. Consult il'Hsoit V. Filcli, 41 Cal. 3:1 1, where tiie defendants claimed unavailing'}^ that the piib'.icaliou ';on- cerning a director of a mining corporation w-aa privileged, for the reason that it was about mat- ters of puljlic interest. See a very clear discussion of this bi-anch of the subject in Odgers on Libel and Slander, * K'6 et S' f]. Subd. 4. Rsports of ofHsinl proceed- inga. — Impartial and aceurate reports of judi- cial pvoceedin'TS are privileged: McBre v. Fid. ton, 47 Md. 403; Sfo-ei/ v. Wallace, 03 111. 51; dazette Co. v. Tnnherlakc, 10 Ohio St. 5vS; Stanly V. Webb, 5 San.lf. 21 ; Edsall v. Brodc^, 17 Abl). Pr. 227. But the reporter must add no comments of his own, for to these no priv- ileue attaches: Commonweidth v. Blandbig, 3 Pick. .304; Thomas v. Cromwell, 7 Johns. 2G4; see Townshend on Slander and Libel, sees. 229 et seq. ■§§ 48-55 PERSONAL RELATIONS. Piv. I, Paet m. 48. Malice not inferred. Sec. 48. In the cases provided for in subdivisions three and four of the pre- ceding section, malice is not inferred from the communication or publication. 49. Proleclion to personal relations. Sec 49. The rights of personal relation forbid: 1. The abduction of a husband from his wife, or of a parent from his child; 2. The abduction or enticement of a wife from her husband, or a child from ; a parent or from a guardian entitled to its custody, or of a servant from his master; 3. The seduction of a wife, daughter, orphan sister, or servant; 4. Any injury to a servant which affects his ability to serve his master. Code commissioners' note. — "3Bla. Com., provision in subdivision 3 is new, as to tlie sister fCooIcy 'sell., 138-141. Perhaps the provision in ami daughter: Dain v. H'yciojT, 7 N. Y. 191. -Biibdi vision 1 is new, and doubtless, as a matter .-of fact, it would rarely be taken advantage of. Kevertheless, the injury is a very great one, and • one, unliappily, not entirely unknown: Bennett X.Smith, 21 Barb. 439; Schcrp/ v. Srzadeczl'y. 4 .E. D. Smith, 110; see People v. Olmstead, 27 Barb. 9; Lumley v. (7ye, 2 El. & Bl. 216. The The legal fiction by which the action of seduc- tion has long been sustained has always been considered too narrow for the purpose of jus- tice: Woodicard v. Wanhburn, 3 Denio, 369; Martinez v. Gerher, 3 Man. & Gr. 88." Action for seduction: See S3cs. 374, 375, Code Civ. Proc. 50. Bight to use force. Sec. 50. Any necessary force may be used to protect from wrongful injury the person or property of one's self, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest. [Amendment, approved March 30. 1874; Amendments 1873-4, 184; took effect July •1. 1874.] PART m. PERSONAL RELATIONS. 'Title I. Marriage. , 55 II. Parent and Child 193 III. Guardian and Ward _ 236 IV. Master and Servant ^ 264 TITLE r. MARRIAGE, Chapter T. The Contract of Marriage ,. . 55 II. Divorce 82 III. Husband and Wife . ......^ 155 CHAPTER I THE CONTRACT OF MARRIAGE. Article I. Validity of Marriage ^ II Authentication of Marriage III. Judicial Determination of Void Marriages 55 68 80 ARTICLE I. validity of marriage, 55. What constitutes marriage. Seo. 55. Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone 18 Title I, Chap. I.] CONTRACT OF MAT.RIAGE. $55 will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations. ring; we are married." She received the ring as a wedding-ring. Ho then eaid: "Wo are married just as much as Charles is to his wife. 1 will live with you and take care of you all the da} s of my life as my w ife." She assented Marriage, -what constitutes, — A contract of ii.arnagu is a civil coutiaet: (Iniliam v. Benixtl, 2 Cal. 503; LaUr v. Baker, 13 Id. 57; J /y lies v. McDermolt. 7 Abb. N. C. 9S; Lis-M V. Biiself, 55 IJarb. 325. This theory ti> nuiriiago is disapproved of by able writ- to this, and they went to a house M'hcre he had previiiusly cueagcd board for "himself ami wife," where they lived together as man and wife for about five v<-ei-ks, he treating her as his wife, and addressing and speaking of her as such: it was held that this was a vali.l mar- riarje. In Jaclson v. Winne, 22 Am. Dec. 503, ers: 1 Lishop on Mar. & Div., sees. 3 et seq. ; Schouler on Husb. & W., sec. 12; and other atitliors referred to in these works. By these, marriage is regarded as sometliing more than a mere contiact, but rather as a sta'us. B.iuvier, in the revised and enlarged edition ( f his work, defines it as "a contract it v.as held that to complete a marriage nothiu made in due form of law, by which a man and more was necessary than a full, free, and woman reciprocally engage to live with each mutual consent between parties not otherwise othc;- (luring their joint lives, and to discharge incapable of entering into such state, towards each otlicr the duties imposed by A contractof marriage made^'ert'f^fta (/e;?rcB- law (i:i the relation of husband and wife:" g^^ji^/, properly attested, is as valid as if made »t Bouv. Law Diet., tit. Marriage. Con.'^ent is failc i'cc(e>-ioe: Feidon w RenLi Am. Dei^.l-i^; the foundation-stone of marriage; without it Londonderry v. Chester, 9 Id. CI. And an a marriage is a mere nullity: 1 Bishop on Mar. agreement to marry j.e.r verba de prawuti, fol- &, Div., sec. 207. But it was said that mar- lowed by cohabitation for several j'ears, will bo riage was not constituted by mere consent deemed a valid marria'^c, though not solcm- of parties; but that the consent of the state, nized according to the laws of the place where man.fested by solemnization in the presence of the contract is made: Nexchury v. Bruvnw'.ch, one of the aathorizeil persons, was also nects- 19 Id. 703. A valid marriage, to all intents eary ia Missouri, in Dyer v. Brannock, 2 Mo. and jjurposes, is established by proof of an App. 432. No religious form or ceremony actual contract, ;)cr rer6a (Ze /jrce-spji^e, between •wiiatevcr is essential to its validity in New persons ca[)able of contracting, to take each Yoih: Bi~:selly. /;j.sse/^ 53 Barb. 825. And an other for husband and wife, especially where agreement made in Missouii in 1S19 or 1830, the contract is followed by cohabitation; yet a that they wim'.d live together as husband and contract 7)c*- i-erha de 'praaentl constitutes mar- wife, ii a valid marriage without any solemniza- riage only wlien the parties intend that it sliall tion: y.'j/'r v. /jrannoc/.-, CG Mo. 391. The same do so without any subsequent ceremony. A is true ill California; and where parties arc r.ble proposition to cohabit as man and wife, with to co;iti-act, an open avowal of the intention, and an assurance of future marriage, would be a an asaumpLion of the relative duties which it nullity: Van Tuyl v. Van Tuyl, 57 Barb. 235. ii'.ip jces, r.rc! S-iliicient to ren ler n valid and If a resident of Is'ew York contracts Miarriage, binding: Graham v. Z>V.,«f.7, 2 Cal. 503. But per rerbi de prwttent.!, in a foreign country, t!;e livi.:g together as man and wife is not a mar- with another competent person, with a view to riage, nor is an agreement so to live a contract future residence in New York, the jiresumption of mar;-ia;;c; and where the plaintiff averred in is in favor of its validity: J/i/nes v. McDfirmott, her complaint, in a suit brought for her dis- 7 Abb. N. C. OS. A marriage is also sulncipiitly tributive thare of the estate <"f an alleged de- establis'ied if there is evulence of a marriage ceased hr.sband, that the deceased made pro- in the present, and also a contract per verba de posali of marriage to her, v.liich she accepted, prcexevli cum copnia: Estate of Mc( 'ausUind, 52 end cimsented to live with him as his true and Cal. SCS. "According to thclanguage usual'y lawful wife, and that in accordance with his enndoycd in the books, if parties are engageil to wishes she henceforth lived and cohabited be married, and then, such engagement remain- with l.i.n as his wife, always conducting her- ing unrevoked, have carnal intercourse, the Bclf as a true, faithful, anil afTcctionate wife engagement and copida, connected together, nhould i!o, it v.as held that these were insulfi- auiomit in law to a present consent, constituting cient averments of tlie e.Kistcnce of a marriage, what is termed marriage per vrba de/ittiiro cum and that the facts averred were only prima copida. The r -ason is, that the copi('ai3 pre- J'arie evidence of marriage: Letters v. Cady, 10 sumcd to have been allowed on the faith of the Id. 533. And where a man and woman co- maniago promise, and that so the parties at habit together, and he promises to marry her, the time er verba de fuluro is not evidence of a valicl marriage. Nor arc the re- lations of the parties changed by the fact that Bixxell V. Binsell, cited aiUr, a man and woman were cngnged to be married, and he stated to her that he did not believe in marriage cere- monies, and wished her to waive the ceremony, Baying that a marriage without it would be ppifectly valid. Slie finally consented to waive any ceremony, and ii.x(d a day for the marriage. On that day, while they were rid- ing together in a caniage, ho placed a ring cohabitation followed the promise, they neither upon her linger, saying: "This is your wedding- accepiiug one another as husband and wife, nor 19 §§ 58-58 PERSONAL RELATIONS. [Div. I, Part III, BO conductins themselves that such relation is Construotion of this ssctlon: See the arti- un.lerstoo.l acquiesced in by relatives and ac- cleof I'rulessorPonieroy, 4 West Coast Rep. loO, cjuaintauces: llebblellnviilc v. llcjnvorth, 93 111. \'y2\ the decision of^ tlie superior court of the 12G. As to what is sulficient presuinptivo cvi- city and county of San Francisco in Sharon v. dence of a marriage ]ier v-ell V. Blssell, 55 Id. 325; RorkwU v. Tun- tiiclif, 02 1 1. 408; Peop'e v. Bartholf, 21 llun, 272. A witness who testifies to a marriage in a foreign country may be asked whether that was the usual way of marriage there: ]Vott7-ich v. Freariian, 71 N. Y. 001. Proof of marriag3 in criminal cases: See note to Stale v. J/od(jkiiis, ;,6 Am. Dec. 475. Presumplion of marriase conflicting v^ritli presumpUoa of inuosenae: See Code Civ. Proc., sec. 1963, subd. 1, note. 53. BTarriage, when voidable. Si:c. 58. If either party to a marriage be incapable from physical causes of entering into the marriage state, or if the consent of either be obtained by fraud or forc(!, the marriage is voidable. \Amendmeid, approved March 30, 1874; A',u'ii(hnent)i 1873-4, 185; took effect July 1, 1874.] The original section introduced the words impotence is discussed at length in a note to Devaiihayh v. Devanbai^h, 28 Am. Dec. 443; and J.S.O in 2 Bishop on Mar. & Div., c. 35; and 1 Id.,c. 19. The latter defines impotence to be (in sec. 324, 1st vol.) "such an incurable capacity as admits of neither copulation nor procreation; " "f. T want of age or understanding or" after " iiicapabk'." Pliysi::al inoapacity to marry.— This inca- pacity arises generally from the impotence of one or the other of the parties. The subject of 20 Title I, Cuap. I.] CONTRACT OF MARRIAGE. §59 V , but pliyyical incapacity may also arise from a ^vant of a;;c, and a consequent lack of maturity: 1 Eisiiop oil Mar. & Div., sec. 144; see sec. 82, _sutcl. G. Fraud in obtedning consent. — Fraud in obtaii;in'^ the consent of a female to a contract of marri;i;;e is a ground for its nullification: Sloan V. Kane, 10 How. Pr. GG. Bat where the marriage Mas procured by the fraud of the wife in not disclosing her pregnancy at the time of tlie marriage, tiicre is i;o ground of ili- vorce: Lo7ifj v. Long, 77 N. C. 304; S. C, 24 Am. Rep. 449. But see Baker v. Baker, 17 Cal. 87, and the cases in the r( porter's note to Siate-^ V. Slatcg, 37 N. J. Eq. 195. And a divorce cr.nnot be obtained by the husband's fL-did in inducing tlie marriage l)y false repre- ren'ations r.s to his character ai:d propertj': KkLi V. \Volf.s(jhH, 1 Abb. N. C. 131; and con- cealment from her husbr.nd by the \\\ic of her II!. chaste character previous tot'.ie marriage, or fa!^e reiircccntatious made by her ujion that Eubject previous to the m.arriage, to induce him to marry h.er, are not such a fraud as will sup- port a jud'mcnt declaring the marriage \oid: tarut-yy. Vamen, 52 Wis. 120; S. C, 33 Am. Rep. 72(). "The fiaud which wiil avoid a marriage must go to the csser:ee of the contract. Caveat (mptor, the rule of trade, seems to ^PP'3'' * * * If the fraud is not that tf a party, bat of third jiersons, v>ithout his knowl- edge, t'.e marriage is not inval.d. General'}', a third person cannot interfere to avoid a marviage for force cr fraud. Ratification of a forcible o." fraudulent marriage by the injured ^■- party wi 1 make it valid, as by connection arter removal of the restraint or knowledi^e of the fraud:" Browne on Dom. Rel. 9. See, as to illustrations of fraud in obtaining marriage, JilcKinney v. Clark, 2 Swan, 321; Bar)ies°v. Wyethf, 28 Vt. 41. As to penalty for false personification in mar- ital relations, see Pen. Code, sec. 528; see also sec. 82, pos', and note. Marriage obtained by duress "Where a formal consent is brought al)out by force, menace, or duress — a yielding of the lip.?, not of the mind — it is of no legal effect:" 1 Bishop on Mar. & Div., sec. 210. 'iThe general rule is that the force must be such as would natu- rally seive to overcome the will. The ques- tion of the amount of force depends upon circumstances: " Browne on Dom. Rel. 7. Sclioulcr and Kent lay down the rule that sncii a marriage is void ab initio: 2 Kent's Com. 7u; Scliouler on Dom. Rel. 35; but this rule has been denied, and it has been held that sucli a mar- riage can only be avoided by the person de- frauded in his life-time: Browne on Dom. Rel. 7. In Willard v. Willard, G Baxt. 297, it was Iield a marriage, consent to whicli was compelled liy tlie duress of cither party, was voit'.able; but it has been held tliat a man ia:,-e obtained by force or fraud was void: RohcriHO)} V. Vole, 12 Tex. 35G; Bcynolds v. Beynol(h, 3 Alien, C05; Kcyx v. AV?/.s-, 22 K. II. 55.); but that a man's consent was tlie result of duress wiil not be concluded from the fact that he was at the time in the custody of the conslable, under proceedings instituted against him as the father of a bastard child: Jack.->07i v. IVinne, 22 Am. Dec. 5G3. NulliTi^^ng marriage: See sec. 82, post, and note. £9. Incovipetency o/joarlies to. Sec. 59. ]\[arriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate. Inoestuous marriages. — "Law forbids the marriage of near relations. Such maniages a:'e not only forbidden by divine law, but phyi;iological experience shows that the issue of such C;.nnecticn is nearly always degenerate, frequently monstrous:" Browne on Dom. Rel. 1. In I5C3 ArchI ishop Parker publislied a table of ]woliibitcd degree.'', commonly known as Archbishop Parker's Table of Degrees, which ever since has been in Fngland the basis of all judicial opinion on the subject: 1 Bishop on Mar. & Div., see. 31S, and note giving tlie table of dorrvees; see also sees. 370 et scq. Ujion a Laws, sec. 146, prohibiting marriages between "parties who are nearer of kin than second cousins, computing by the rules of the civil law, wlietiier by the half or whole blood." in- cludes a woman's marriage with her half- brother: Territory v. Corlxtt, 3 Mont. T. .SO. A marrying a brotlier's widow is an oQcnie under 1 Va. Rev. Code, c. ICG, 399: Comn:Gn- urallhv. Ferryman, 2 Leigh, 717. A marria!:;o between an uncle and a niece is not, under t!ie laws of South Carolina, void: Boivera v. Boirera, 10 Pdch. Fq. 551; and under a statute allov.ii^g marriages ' ' not prohibited by the Laws of God, " trial on an indictment for an attempt to con- a marriage by a man with the dauglitcr of liis tract an incestuous marriage, something more sister is voidable during the life of tlie parties, must lie shown than mere intention to contract but not void, and cannot be called in question Euch marriage. Preparation for the attempt after tiie deatli of either: Bonham \. Ikahjey, indicate the intention, but between this and 2 Gilm. G22; S^erofso?! v. Gray, 17 B. Mon.'l93; the attempt itself there is a wide difTerence. Parkcr''-'i A].ntion of circumstances independent of the will of the ])arty: People v. Murray, 14 Cal. 159. In incest, one party having knowl- edge and t':e other being ignorant of the rela- tionship, the former may be convicted and the latter acquitted: State v. Ellis, 74 Mo. 385; S. C. 41 Am. Rep. 321. The Montana Ter. Crim. (Del.) 50. A marriage valid where it is con- tracted is valid in Massachusetts, if not incest- uous by the law of nature or not made void: Mass. R. S., c. 75, see. G; although it would be void by the law there, if contracted there: Sut' ton v, Warren, 10 Met. 451. 21 §§ GO, 01 PERSONAL RELATIONS. [Div. I, Part in. 60. Of whites and negroes or mulatloes, void. Sec, CO. All marriages of white persons with negroes or mulattoes are illegal and void. Marriages between whites and negroes. In Vfi y iiKiny of the atatca tliere ;ire statutory l>nivisioiis I'orhiildiii!; the inairiagcs of white peraoiis and negroes, anil pronouncing such marriages void; Sitccesxioii of Minvielle, 15 La. Ann. 'Ml; SUUc v. llooix't; 5 Ired. L. 201; State V. llalrUon, 03 N. C. 451; State, v. lleinhardt. Id. 517; Kiitncy v. Contmonweallh, .30 Giatt. 8.aS; Slate v. iJaxter, 7 Baxt. 9; Francota v. Slate, 9 Tex. App. 144; State v. Gibson, 30 Ind. 3;i9; S. C, 10 Am. Rep. 42. Statutes prohib- iting eucli marriage arc not unconstitutional: Slate V. Gibson, 30 Ind. 3S9; S. C, 10 Am. Rep. 42; Green v. Slate, 58 Ala. 190; as each state Las an exclusive right to declare how and Avlioni its citizens may marry, and the legal consiqucuces of the marriage contract: Fran- cois V. State, 9 Tex, App. 144; although in Ala- Lama it was held that a statute making the intermarriage of whites and blacks a criminal offense was unconstitutional: Burnn v. State, 48 Ala. 193; S. C, 17 Am, Rep. 34; but see Place V. Alabama, 100 U. S. 583, A negro and a white person living together in Tennessee as man and wife are liable to indictment, al- though married elsewhere: State v. Bell, 7 Baxt. 9. If a negro and a white should leave the f-tate to marry, in evasion of its laws, and intending to leturn to the state, the marriage is not v;-.lid iu that state: State v. Kennedj, 70 N. C. -251; S. C, 22 Am, Rep. 083; Kinney v, Commoiiireallh, 30 Gratt. 853; but the marriage would bo valid if they did not intend to return, although afterwards they actually did so: State V. Ro s, 70 N, C. 242; S. C, 22 Am. Rep, 078; but in Louisiana it was held that no matter what validity could attacli to a marriage, or a marriage contract, between a free white person and one of color in another slate, no effect could be given to either iu that state: Dupre v, BoularJ, 10 La, Ann, 411. But a negro, mu- latto, or mestee is not liable to indictment by the provisions of Tennessee laws, 1822, c, 19, for marrying a white woman, or living with herasiier husband: Slatev. B r ad i/,d Humph. 74, Under a Massachusetts statute, which pro- hibits a marriage between a white person nnd a mulatto, it was held that a mulatto was a person begotten between a black and a white, and that the issue of such a person and a white was not a mulatto: Medway v. Katirh, 7 M'xss. 88; .ind under the statute of that state, 1780, prohibiting a marriage between a white persoa with a negro, Indian, or nmlatto, a person hav- ing a sixteenth part Indian blood is a white person, and cannot marry a mulatto: Bailey v. Fi»ke, 34 Me. 77. In the North Carolina act the " persons of color " include all who are de- scended from negro ancestors to the fourth gen- eration inclusive, although ono ancestor of each generation may have been a white person: StalA v. Waters, 3 Ired. L, 455; but see State v. Md- ton. Bush, L. 49, A marriage between a free white woman and her negro slave will not be presumed from co- habitation: Armstrong v. JJodi/es, 2 B, Mon, 09. Where an action is brought to displace a natural tutrix for neglecting to comply with certain formalities, she cannot plead the nul- lity of her marriage with a husband of color. A direct action to impecch the marriage is necessary; and that being impossiole, on ac- count of the death of the husband, with whom she had cohabited for many years, and by whom she had issue living, she cannot set up the nullity as a defense to such proceeding: Boyer v, Tassin, 9 La. Ann. 491, But ia S ac- cession of Minvielle, 15 Id. 342, that a marriage celebrated between a free w^hite person and a free person of color, in violation of article 95, Louisiana civil code, is an absolute nul- lity; but no suit was needed to declare the nullity of such a union; that either party might disregard it, and neither could pre- tend to derive from it any of the consequences of a lawful marriage; that it might be at- tacked collaterally and in every form of action in which it was set up against either of tho parties. 61. Second marriage, when illegal and void. Sec, G1. 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 for- mer husband or wife, is illegal and void from the beginning, unless: 1. The former marriage has been annulled or dissolved; 2. Unless such former husband or wife was absent, and not known to such person to be living for the space of five successive years immediately preceding Buch subsequent marriage, or was generally reputed and was believed by such person to be dead at the time such subsequent marriage was contracted; iu either of which cases the subsequent marriage is valid until its nullity ia adjudged by a competent tribunal. [Amendment, approved March 30, 1874; Amendments 1873-4, 185; took effect July 1, 1874.] Bigamy: Sec Pen, Code, sees. 231-283, In trial for bigamy, the law will not pre- Butne the continued existence of a former wife in order to convict: People v. Feilen, 58 Cal. 218. Proof of marriage: See note to sec. 57. Subi 1. WTiere former husband or wife i3 llvia^. — A marriage by one having a former hu^iban I or wife l.ving is void: Janes v, Jane<>, 5 Blackf. 141; ^rartin v. Martin, 22 Ala. 80; Surnmcrliii v, L'oin'jston, 15 La, Ann. 519; Harrison v, Lincoln, 43 Me. 205; Trenton, v. 22 Title I, Chap. I.] CONTRACT OF JStARRtAGE. §6i Beed, 4 Johns. 52; Appleion v. Warner, 51 Barb. 270; Kenlcy v. Ken/eij, 2 Yeates, 207; Heffner v. J/efiK-'r, 23 Pa. St. 104; Sellars v. Davis, 4 Yerg. TiOS; Drttmmond v. Irish, 52 Iowa, 41. And if a legal divorce from a first marriage is not established, a second marriage cannot be suUiciently establislied to authorize a divorce from a second marriage and an allow- ance of alimony : Collinft V. Collin>t, SON. Y. 1. But where a decrse of divorce in A.'s favor was entered at two o'clock p. M. of tlie day upon which at eleven o'clock a. m., in good faith, supposing the decree to have been entcrcil, ho married again, the marriage is valid: Merriam V. Wolcott, Gl IIow. Pr. 377. In JIassachusetta marriages of persons against whom divorces have beuu granted on the ground of adultery are invalid unless leav<; of the court has been obtained: West Cambridrjc v. Lexiiifjto7i, 1 Pick. 5C5; S. C, 11 Am. Dec. 231; While v. While, 105 Mass. 325; S. C, 7 Am. Hep. 526; Commomcralt/i v. Lane, 113 Muss. 45S; S. C, 18 Am. Rep. 509; Pntvian v. Pulman. 18 Pick. 43.3. In North Carolina the statute expressly makes it a felony for the offending party to marry after a divorce, "his or her former wife or husband being alive," and such a marriage is null and void: Cal'oway v. Bryan, 6 Jones L. 569. In New York, also, there is a statute prohibiting the second marriage of a person divorced on the ground of his adultery: Van VoorhisY. Briiitiiull, SG N. Y. 18; S. C, 40 Am. Rep. 505; Smith v. Woodwortli, 44 Barb. 198. In other states as well, statutes have been passed lestricting or regulating the marriage of persons against whom divorces have been granted. Suc'.i laws of course have no extra- territorial effect; and 'where a husband having a legal settlement in the state of Massachusetts, after a divorce for adultery, removed to another state and married, his former wife being still alive, as such marriage was permitted in that state, the children are legitimate and have their father's settlement: West Camliridije v. Lexinrjtou, 11 Am. Dec. 231. There is a differ- ence in the states as to what effect a removal to and marriage in another state, for the pur- pose of evading the laws cf the first state, would Lave on a return to the first state. From Commoinceallh v. Lane, 113 Mass. 458; S. C, 18 Am. Rep. 509, it appears that such persons might be indictable for polygamy, but not without proof that tlie second wife was a resi- dent of Massachusetts, and that the purpose of the removal was to evade the laws of that com- monwealth. Formerly such was not the law of that state: Piitmaii v. Piitmaii, 8 Pick. 433. And in New York such a marriage was held valid, it being valid in the state where per- formed, as the act prohibiting the second njar- riage, being in the nature of a penalty, and not in express terms showing the legislative intent to renih'r such marriage entered into in anotiier state void: Van Voorhis v. Brintnall, 86 N. Y. 18; S. C, 30 Am. Rop. 505, reversing S. C, 23 Hun, 2()4; but contra:. Thorp v. Thorp, 47 N. Y. Super. Ct. 80. And where A. was divorced from his wife in Now York, on account of adultery, and went to New Jersey, where he married again, anl 8ub3c([uently returned to New York, and a statute in force in Now Jersey at the time of his marriage provided that "all marriages when either of the j artics shall have a former husband and wife living at the time of the marriage shall be invalid," it 23 was held that A. had no wifcj living within thd meaning of the statute: Moore v. JJeyeman, 27 Hun, 68. The maxim of the law, Ljnorantia legnni nemineni cxcusat, applies as well to the con- tract of marriage as to other contracts. Thus where, by the general statutes, the guilty di- vorced party is prohibited from marrying again without the leave of court, and he mairies again without such leave, believing he has a right to do so, t!ie subsequent marriage is in- valid. And a special act of the legislature de- clarmg the two persons so married " to be hus- band and wife to uU legal intents and pur* poses" is unconstitutional: White v. White , 105 Mass. 325; S. C, 7 Am. Rep. 526. And where a woman having obtained a separation a mensa et thoro, four months afterwards goes with a co-resident to Mississippi, and n.airying hiui there, returnswith him here, a divorce auiVirw/o mafriinoiiii never having been decreed, slie is onl}' his concubine, and not entitled to tlie right of a wife in a last will and testament, al- though as a matter of fact she did believe her- self finally divorced: Cannena v. Blan-i/, 18 La. Ann. 245. But the position of a womau who innocently marries a man whoso wife is living, and lives with him for a long time, is favored in law, and a divorce was pn sume 1 ia her favor in Carroll v. Carroll, 20 Tex. 731; see 2-1 La. Ann. 298. Subd. 2. Continued absence cf hvOf band, effect of on subsequent marrlag • .— r At the common law, thiTo was a presumptioij of t!ie death of a person who was absent and unheanl of for seven years. This presnmptioii has generally been put in a statutory form iu the several state-, with the time more or leis modified; and it has been applied to marriage? BO as to make such as were not contiactcd tdl after the presumption of deatli fi-om absence arose valid until set aside by a competent tri-; bunal. Instances of such marriages havinj/ been held valid may be found by referring t<> the following cases: Luha)i/:s v. BniiLt, 34 Ga. 407; Strode v. Strode, 3 Bush, 227; A'J> v. Drew, 12 Allen, 107; Yates v. J/o'istim, 3 Tex. 433; Dixon v. People, 18 Mich. 84; Crop aey v. ilcKinr.ey, 10 Barb. 47; White v. Louei 1 Redf. 376; Canada v. Conje, 6 llich. Eq. 103. A statute declaring that a second marriage con^ tracted by one whose liusband or wife sh.ail have absented himself or herself for five years, " without being known to be living, "shall only be void if judicially so declared, requires ordi- nary ])rocautions and inquiry on the part at one so marrying as to wiiether the other partj is living. Merc ignorance is not enough: A'i/«- zrrj V. Kinzpy, 7 Daly, 4G0. And where a wifa abandoned her husband on account of his iu* temperate habits, cruel treatment, and absence from iiomo, and during lire successive yean resided in an adjoining county with a second husbaiul, and it did not appear that she had knowledge of the death of her fir.'^t husband, or that he was not generally well known to b« living, it was held not such a conti:uiing ab- sence for five successive years, witiiin t!ie pro- visions of New York, as to render valid th^ second marria'C, anarties are, or have been, amenable for any violation of the duties incumbent on them in that relation: Barber v. Boot, 10 Mass. 200; and while the forms and ceremonies of mar- riage are governed by the laws of the place where the marriage is celebrated, the essentials of the contract depend upon an-l are governed by the laws of the country where the parties are domicileil at the time of the marriage and in which the matrimoni;d residence is con- templated: Kinney v. Cornmonv-eaUh, 30 Gratt. 858. Where the jiarties went to another state for the purpose of ev.ading the laws of their own country, which prohibited a marriage be- tween them, and after tlieir marria^'e returned to their own state, the marriage was held valid, in Medway v. Xfcdham, 10 J.Ia^!S. 157; S. C, 8 Am. Dec. 131; see on tliis point cases cited in note to subdivision 1 of .section 01; but this p'in- ciple will not be extended to legalize incestuoua marriages so contracteil: Id. And a marriage contracted, M'ithout this state, which is valid by the law of the place whe'-e contracted, is valid in this state, if tiie parties subsecjuontly remove here, even though the marriage would 24 69a (new). Certificate of Registry of iVIarriage. All per- sons about to be joined in marriage must obtain from the county clerlt of the county in wiiich the marriage is to be celebrated, in addition to the license therefor pi'ovided for in section sixty-nine of the Civil Code, a certilicate of registry as provided in section three thousand and seventy- six of the Political Code which shall contain among other matters as near as can be ascertained, the race, color, age, name and surname, birthplace, residence of the parties to be married, number of marriage and condition of each, whether single, widowed, or divorced, the occupation of the parties, maiden name of the female, if previously married, the names and birthplaces of the parents of eacli, and the riaiden name of the mother of each, which said certificate of registry shall be filled out as lierein pi-ovided in the prestice of the county clerlt issuing the marriage license and shall then be presented to the person performing the ceremony and shall be filed by him with the county recorder within three days after the ceremony. (In effect 60 days from and after April 26, 1909. Stats. 1909, Chap. 719.) Civ. Code, 1909. Title I, Ciiap. I.J CONTJiACT OF MARRIAGE. §§ C3-70 have l)cen invalid ny the laws of tliia state if does not apply if the lex loci he repugnant to contracted Lerc: Pcamon v. Pearnoii, Ol t'al. the iciigion, morality, or religious iiislilutioiis 120; and sec, on tliis point. West Canihridjc v. of t!ie country wliercin it is soc.giit to be ap- LexiiKjlim, 1 Pick. 503; S. C, 11 Am. Dcc.'illl. pli'jd: Triu- v. Ranmy, -21 N. 11. 52. Lut tiie rule t.iiat tlie validity of a contract of Validity of foreigu divoroes: 8ee note to marriage depends ou the Ltx loci contracCus sec. 91. ARTICLE II. AUrnENTlCATlON OF MAItRTAOE. 63. Marriage, how solemnized. Sec. G8, Marriage must be licensed, solemnized, authenticated, and recorded as provided in this article; but non-compliance with its provisions does not invalidate any lawful marriage. CDnstriiction of sttitutes concerning sol- statute on the subject, unless the statute con- emn:'::aLioii, gsnerally. — Bisliop, in liii work tains express words of mdiity. Tiiis rr.ie ap- 011 n:ai ria^'o and divoi'ce, sec. 2S3, considering plies not only ta the statute as a whole, but to the (|ueslion as to the effect of .statutes pre- the sisveral parts of it; so that if it dcclnrea sciiliing certain forms of solemnization, snys: the marriage void for non-compliance with a " If u e renicnd)er tliat marriage existed ijei'ore particular provision, it is good notwithstanding statutes, that it has ever been a thing to be a failure to comply with any other jirovision. favored in the law, t!iat alao it is of natural This rule, like most ot'icr legal rules now well light — we shall see very plainly that wliatever settled, lias struggled against some doubts and directions a statute may give concerning its uncertainties, but it seems never (uidess we Bolemnizatioii, it should be iield good, though exee|)t a Massachusetts decision, to which we not solemnized according to its directions, shall presently refer) [Mllfonl v. Worrexter, 7 Consequi'ntly, the doctrine has become cslab- Mass. 4SJ to have been discarded in actual ad- lishcd that a marriage good at the common law judication." ia good, notwithstanding the existence of any See the note to sec. 55. 69. Marriacjt'. license. Sec. G9. All persons about to be joined in main-iage must first obtain a license therefor from the county clerk of the county in which the marriage ia to ba celebrated, showing: 1. The identity of the parties; 2. Their real and full names, and places of residence; 3. Their ages; 4. If the male be under the age of twenty-one, or the female under the age of eighteen years, the consent of the father, mother, or guardian, or of one having the charge of such person, if any such be given; or that such nonaged person has been previously, but is not at the time, mamed. For the jourpose of ascertaining these facts, the clerk is authorized to examine parties and witnesses on oath, and to receive affidavits, and he must state such facts in the license. If the male be under the age of twent^'-one years, or the female be under the age of eighteen, and such person has not been previously married, no license shall be issued by the clerk, unless the consent, in wiiting, of the parents of the person under age, or of one of such parents, or of his or her guardian, or of one having charge of such person, be presented to him; and such consent shall be filed by the clerk; jDrovided, that the said clerk sball not issue a license authorizing the marriage of a white person with a negro, mulatto, or Mongolian. [Amendme)il, approved Aprd G, 1880; Anicndinenls 1880, 3 (JUiii.id. 121); look effect immedialchi.\ Gwear:n3 falsely as to the age uf a woman the accused desired to marry is perjury: People V. K,'lbi, o\) C.d. ;i72. 70. llij irlioni Kolemnized. Sec. to. Marriage may be solemnized bj' either a justice of the supreme court, juilge of the superior court, justice of the peace, priest, or minister of the gospel of :uiy denomination. | Amend mt^nt, approved April G, 1880; Amendinents 1880, y {JJan. ed. 122); look effect iinmcdialeli/.\ 25 85 71-73 PERSONAL RELATIONS. [Drv. I, Part m, ing upon a circuit, including the town in which ho'dwclls, is not "Battled in the work of the ministry" within the marriage act: Conn. Stat.,' ed. 1808, lOo, c. 1, sec. 2; G'ov/te/t v. Slon- imjton, 4 Conn. 209; but Bca Kihb<- v. Antram, 4 id. l.'>4. A person ordained .is a minister of the gospel, according to the form observed in tlie IJaptist churches, and being afterwards cn'^aged by two Baptist societies in the town wliere he lives to preach to tliem alternately, "is a stated and ordained minister of the gospel," and a marriage by hi.n is valid: CommonweaUh v. Spooner, 1 Pick. 235. And a person wlio has once been set a[rce, yet it outs "leeper into tlie soil cably established by this Buit, while tliey do of consequences than tlie divorce suit, because not by a suit for divorce. Tlierefore it haa the interests and riglits of third persons are been said to be a more highly privileged suit, 28 Title I, Ciiaf. II. ] DIVORCE. 882 and it excites to even a greater degree the vigi- idiocy or insanitj': Ekey v. Etznj, 1 Honst. la. ice and caution ( f the court. Yc:t where a 308. But a marriage, if made with a fool, or case io siiiliciciit'y raacle out liie court ha^ no person uon compos vtentia, is absolutely void: discretioi), and it must proceed to the sentence. JSliddU'borowjIi v. Ilorhcster, 12 Mass. oG.3; True It i.3 ( f no avail that the dtfciulant is innocent v. Rwivpy, 21 N. H. 52; Foxier v. JiJea7)s, of any intent to do wrong, or t!iat t!ie plaintiff Spears Ch. i;(59; Cole v. Cole, 5 Snced, 57; is i:i fact the more guilty party: " 2 Bishrp on Uoe v. Roe, 1 Ivlm. Sel. Cas. 344; Oa^/iing-t Mar. & Div., ."^ec. 2.)4. v. U'il/iarn.t, 5 Ircd L. 4S7; so al.^o the idiocy fu/Ubcl 1. Conssat of parents. — "The con- of a ];artyalso niaUcsa marriage void: Johnson sent I f jnxrents and guariiian.9, ■sphere a party v. Kincaile, 2 Ircd. P]q. 70; and a marriage is nmlcr the age of legal consent, is one of cercnioiiy perfnrmed while one of the parties is thosu formalilies which marriagc-ccl'.bration insane from (lellrium tremens is void: i'lcmcnt acts now commonly prescribo in the interest of v. Matron, 3 Rich. 93. In a suit for a nullifi- society, a."; tiicy do l^anns, or the procurement cation for tlie lunacy of one of the parties at of a license, generally tor better publicity, the time of the marriage, the court has no dis- Such consent was not necessary at the e(jm- crctionary power in granting or refusing the mon law:" Schouler on Dom. ilcl., sec. 30. petition: Crump v. Morgan, 3 Ired. Eq. 91; "The want of consent of parents was, in the but the validity of such a marriage will not be language of the ecclesiastical law, an imped!- questioned or tried collaterally or incidentally: menlitm impcdUivum, an impediment v/!iich IVilHamson v. WilHams, ^ Jonca Eq. 440; Goshen threw an ohstrucLion in the way of the eele- v. Richmond, 4 Allen. 4.3S; but if the couple bration, but not nn imprdimentum dirimens, an live;l together as man and wife unlil his death, impediment aliecting tlie validity of the mar- the vah\li:;y of the marriage cannot be impugned ria^e once solemnized:" 1 Eis'iop en Mar. & on the ground that he was out of his mind Div., sec. 2j3. The common-lav/ rules as to the v.'ant of age are stated in the note to Gath- iug^ V. ]Vdliam-^, 44 Am. Dec. 57. Gubd. 2. "Wlisre tliero v/as a prior exist- ing inarriage: tSee scc. Gl, subd. 2, and noLe. A cause of action toannal a marriage by reason wlien the ceremony was performed: ScJjalot v. Popidiis. 31 La. Ann. 854. Numerous other authorities on this point are referred to in the note to Gathin(/s v. Willicims, 41 Am. Deo. 55. Gubd. 4. i'raud in obtaining m.'irriage: See sec. 58, and note. If a woman be with \ of a fornier marriage of tlie plaintilf to one who child by a stranger at the time of marriage, is still alive cannot be joined with a cause of and her intended husband be ignorant thereof, action to qui.t her title to her separate prop- the fraud vitiates the contract: Baker v. Baker, erty, la which the defendant falsely claims v.n 13 Cal. 87; I.Iorrls v. Morris, Wright, 030; but interest: Uhl v. UJd. 52 Cal. 250. Where the if a man, after having sexual intercourse with plaintiff sought a divorce, and the defendant a woman, marries her, on faith in l;er assurance set up a marriage earlier in date than his mar- that she is not pregnant, the fact that she was riagc to tlie plaintiff, and asked for a decree of tlien pregnant witli a bastard child of which ha nullity of the marriage, it was held the ]ilaint- was not the father is not a ground for avoidance iff was not entitled to the divorce, the relation of the contract: Crehore v. Crehore, 97 Mass. of husband and v. ifc never having existed, and 330; Foss v. Foss, 12 Allen, 26. And in North that the defendant was entitled to a decree of Carolina, if a husban.i might have known that nnllity as prayed for: Finn v. Finn, 02 How. his intended wife was pregnant, he is not en- Pr. 83. But in a proceeding to annul a mar- titled to a divorce: Srroggins v. ScroggiuK, 3 riage on the ground that the wife bad a forn'.er Dev. L. 535; Darden v. Burden, Id. 548. But husband living, it appearing that the wife had where a man was induced to marry a woman admitted that s!ie knew such former husband by her repre renting to him that a child she was living wlien the second marriage was cm- iiad was his, and tliat as to all the world but tracted, it M-as held insufficient to warrant a him slie was virtuous, and after the marriage decree of nullity, the other evidence as to his he discovered the child was black, it was held being alive being unsatisfactory: Le Brim v. that he was entitled to a divorce if the color Le Briin, 55 Md. 430. For other autliorities on was so indistinct as to mislead ordinarydiligenca this, sec the note to Gaihings v. Williams, 44 or the child iiad been kept out of sight: Id.; Am. Dec. 54. Scoft v. Shi'/cit, 5 Paige, 43. See also Hoffman Subd 3. Insanity. — A marriage is not to v. H.'ffman, 30 Pa. St. 417. Wlierc a !)ushand be declared void because of the mental incapaci- represented that liis former wife was deceased, ty of one of the parties, except upon the clear- when in reality she was living and lie Iiad been est and most dctinite evidence, and but little divorced from her, it was held tliat these repre- weight should be given to the opinion of a sentations, even thougli fraudulent, and though physician v/ho did not at the time of the mar- the plaintiff would not have married liim had riagc see or know of the mental condition of she known the truth, furnished r.o reason for the party claimed to be insane: Slais v. Slais, granting her a decree declaring the marriage 9 Mo. App. 90. A valid marriage cannot be null: Clarke v. Clarke, 11 Abb. Pr. 228. Those contracted by an insane person, nor by a luna- frauds which invalidate a marriage are usually tic, except during a lucid interval, since he can- such as negative any consent to be married at not consent to any contract; but mere weakness all, without reference to previous inducements, of intellect, unless iL amounts to derangement, and are commonly duress, surprise, or strata- is not sufficient to avoid the marriage: J'awdoii gem in procuring the marriage; and the fraud V. Rawdov, 28 Ala. 505; Crump v. Mornav, 3 must be nearly, if not absolutely, coincident in Ircd. Eq. 91 ; and the same degree of mind which tiTue with the marriage, and operate to destroy will enable a ]:arty to make ft valid deed or will that intelligent consent which is required for will be sufficient to enable him to contract mat- the marriage itself, rather than the preliminary rimony: Atkinson v. Medford, 40 Me. 510; and engage r.ient: L-avi't v. L'-avHf, 13 Mich. 452. a court cannot declare a marriage null and void Gubd. 5. Consaut obtainGd by force: See for weakness of intellect not amounting to sec. 53, aw^'e. aud note. 29 8§ 83-85 PERSONAL KELATIONS. Piv. I, Part III, Subd. 6. Pliysical Incapacity. — It was held, ill Smi'h v. Morchead, (> Jones Efj. SCO, that impotency in ft Imahand did not rciidtr a marriage hy liim void ah inillo, but only void- able by sentence of separation, and tliat until Buch sentence it was dtemcd valid mid subsist- ing. Impotency, in order to constitute aground of divorco, must exist at the time of the mar- riage and be incurable: Baacoiub v. Bnwomb, 25 N. H. 2G7; Devnvbnrjh v. fJfvanhnfjh, 5 Paige, G4; Id. 17.3; Bame principle: Krilh v. Krith, Wright, 518; but see Burt a v. Bttrtis, Hopk. Ch. 5.17. And a provision for annulling marriage for "physical incapacity" does not in- chideoasesof incapacity resulting from sickness: Morrcll v. Morrell, 17 Ilun, .3-24. And impotency arising from idiocy is no grounil of divorce ia Vermont: Norton v. Norton, 2 Aik. 188. 83. Action for vull'dy, when and by lohom commenced. Sec. 83. An action to obtain a decree of nullity of marriage, for causes men- tioned in tbe preceding section, must be commenced within the periods and by tbe parties as follows: 1. For causes mentioned in subdivision one: by tbe 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 arrived at the age of legal consent; 2. For causes mentioned in subdivision two: by either party during the life of the other, or by such former husband or wife; 3. For causes mentioned in subdivision three: by the party injured, or rela- tive or guardian of the party of unsound mind, at any time before the death of either party; 4. For causes mentioned in subdivision four: by the party injured, within four years after the discovery of the facts constituting the fraud; 5. For causes mentioned in subdivision five: by the injured party, within four years after the marriage; G. For causes mentioned in subdivision six: by the injured party, within four years after the marriage. [Amendment, approved March 30, 1874; Amendments 1873-4, 188; took effect July 1, 1874.] ing the sxibject of statirtes limiting the periods within which suit may be brought, says: "A statute of tliis nature is an absolute bar. The knowledge of the offense in the plaintiff's mind is matter to be shown by the defendant who sets up such a statutory bar:" 2 Bishop on Mar. & Div., sec. 107. Action to annul marriage. — The statute, 2 N. Y. R. S. 133, sec. 3.3, providing that a suit to annul marriage for physical incompetency shall be brought within two years from the sol- emnization is a statute of limitations, to which applies the rule that the same is not available iniless pleaded: Kaiser v. Kaiser, IG Hun, 002, Davis, P. J., dissenting. Bishop, in discusa- 84. Children of annulled marriage. Sec. 84. Where a marriage is annulled on the ground that a former husband or wife was living, or on the ground of insanity, children begotten before the judgment are legitimate, and succeed to the estate of both parents. Cliildren of nullified marriage A marriage legal in form, Imt void by reason of some iin- pediment, is a marriage "null in law," and the children are legitimate: SoeGruhamv. Bennett, 2 Cal. 50.3, containing a discussion of the rights and liabilities of such children and of t.ieir parents. A child begotten of a mother who had married in good faith, and before any doubt had arisen in her mind as to the existence of any legal impediment to her marriage, is en- titled to all the rights of a legitimate heir of the mother: ILirrincjton v. Bdrfield, 30 La. Ann. pt. 2, 1297. By the Spanish law, children begotten after both parties know with certainty of the existence of an impediment to their marriage are illegitimate; allter, as to children begotten while both or one of the parties was ignorant of such impediment, or while a doubt existed in the mind of either a? to the fact of any impediment: Patton v. Phil- adelphia and New Orleans, 1 La. Ann. 98. As to construction of particular stiitutes concern- ing legitimacy of chiLlren where the marriage is a nullity, see PrtUt v. Pratt, 5 Mo. App. 539; Liiici'cum v. Lincecum, 3 Mo. 441. Legitimate children, vrho aic: See sees. 193-195. See also, when the qnesdon arises in divorce cases for adult«ry, sees. 14-i, 145. 85. Custody of children. Sec. 85. The court must award the custody of the cliildren of a marriage annulled on the ground of fraud or force to the innocent parent, lOid may also 30 TrrLE I, CuAP. 11.] DIVORCE. 86-91 provide for their education and maintenance out of the property of the guilty party. Custody of chfldren in divorce causes: See sec. 138, post. 86. Effect of judgment of nullily. Sec. 8G. A judgment of nullity of marriage rendered is conclusive only aa against the parties to the action and those claiming under them. CJoncluaivene83 of decree for divorce: See sec. 91, pot J. J. Marsh. GG9; but a di- vorce a mciixa et ihoro does not destroy the relation of marriage so as to enable the w.fe thus divorced to maintain an action against her Imsband: Darhcrw Larber, 1 Chand. 2S0. A decree of divorce a vinculo in favor of the wife defeats and detcrnu'ntsall the rights and inter- ests of her husband in and to her lauds, and restores Lcr riglits precisely as her husband's death would have restored them: Boyldn v. Rain. 28 Ala. :5:]2; Starr v. Pease, 8 Comi. i}41; Wood V. Summons, 20 Mo. 303; and a lease by the husband of binds held in right of his wife cannot inure .ngainst his wife after a divorce a vinculo as evidence of lessee's right of posses- sion, but on'y of his right of entry for emble- ments: Gould V. Webiler, 1 Tyler, 409; but in Barker V. Cobb, 30 N. II. 344, it was held that a divorce did not, ipso facto, cut off the riglits of the husbanil in the real estate of the wife, but it required the decree of tlie court to dis- cumber tlin estate from the husband's riglits. A divorccil woman has no interest as survivor in the estate of her former husband: Chenon-ifh V. Ch'-nowilh, 14 Ind. 2; McCafferiy v. McCaf- Jertij, 8 Bkckf. 218; Cunningham v. Cunning- ham, 2 Ind. 233. And a wife divorced for her fault has no claim to dower by virtue of the formal marital rehition: McCraney v. McCraney, 6 Iowa, 232; but if the husband's adultery was the grouml of the divorce, the wife is not de- prived of her right of dower in his real estate: Wait V. Wait, 4 N. Y. 95. And in North Caro- lina she is not deprived of her last year's pro- vision by her adultery, as she is of her dower: Wallers V. Jordan, 12 Ired. L. 170. The recitals in a decree of divorce are con- clusive against the party who sought it: Pres- cott v. Fisher, 22 111. 390; but a decree dismiss- ing a libel lilcd by a wife against her husband, after having left his house, for a divorce from bed and board for extreme cruelty, is not con- clusive evidence of her having unjustifiably left his house, in an action by a tliird person against him for necessaries furnished the wife: Burden v. Shannon, 3 Gray, 387. A decree dismissing a libel for divorce upon a hearing of the merits is a bar to any future libel for the same cause; otherwise, if the libil is dismissed for defect of proper allegations, or for want of prosecution, or on motion of the libelant: Brown v. Brown, 37 N. H. 53G; see Vance v. Vance, 17 Jle. 203. A judgment upon the merits, dismissing a libel for divorce from bed and board on the ground of cruelty, is a bar to a sul)scqucnt libel filed after live years, for a divorce from the bonds of matrimony for the same cause, although there is evidence of other acts of cruelty previous to the fornur libel than those testified to at the trial: Fcra v. Fera, 98 Mass. 155; see Vinxant v. Vinsant, 40 Iowa, G39; but where, in a wife's action for sejiaration seven years after it was insti- tuted, an order was made allov.ing an amend- ment of the complaint, changing it to a suit for an absolute divorce, and tliis without pei-soual notice to the liusband, though her application showed that she knew his whereabouts, the di- vorce granted on such amendment must be set aside: Hobertsonv. Uohertson, 9 Daly, 44; but it was held that the Nebraska statute, sec. 536, which provides for opening judgments rendered upon constructive service had not application to 81 192 PERSONAL RELATIONS. [DiT. I, Part III, actions for divorce: O'Convrll v. O'Conndl, 10 Ncli. 'AOO. A jiul'^mciit of divorce aguiust a wifi!, wlicrii tiio ajipoarancc of an attorney wixs v/ilhout licr knowledge or consent, i:j not void, hut voiilaMc at lier instance, and it cannot l>e nttackcd l)y her hushand or liia grantei : Eill'lt V. Woldfrom, f),! C\\\. 3S4. An nncxcused de- hiy of nine J'e;.r3, and until after the death of tho oUier p;irty, in attacking a decree of di- vorce, is fatal to a proceeding to set itasiile for tlie purpose (jf ohUiiiiing an interest in Ihe de- cedent's estate: Zoc/lncr v. Zocllncr, 46 Jlieh, 511; hut upon a suilicient cause shown, a de- cree of divoi'ce may he vacated, aUhough the libelant is dead, ard more than twelve years have elapsed since t!ie decree was made: Fidel- ity I m. i'o.'s ATpe'il, do Pa. .St. 242. As to ■when a decree of divorce will or will not be set aside on t!ie ^Tound of fraud, see liager v. IlecJccl, 85 N. Y. 4Sr!; S. C, 21 Ilun, 480; Simons v. Simons, 47 Midi. 2o3; Webstrr v. Webster, 54 Iowa, 153; Wannviaker v. Wana- 92. Grounds of action for divorce. Sec. 92. Divorces may be granted for any of the following causes: 1. Adultery; , 2. Exti'erae cruelty; 3. Willful desertion; 4. Willful neglect; 5. Habitual intemperance; 6. Conviction of felony. \ Amendment, approved March 30, 1874; Amendments 1873-4, 189; took effect Juhj 1, 1874.] maker, 10 Phila. 4G6; Orttijs v. Getfifx, 3 Lea, 2G0; De Oraw v. De Oraw, 7 Mo. Ap]). 121. Parol testimony is not admissible to change tlie terms of a decree of divorce, or vary the ri ^'hts of the parties thereunder: IVitson v. IVil- no)/, 45 Cal. .39^. In the absence of a statement in the decree that tho parties are divorced a v'nculo, ib does n >t make the divorce one simply a raansa et thorn; the word "divorced" is to be tal^en in its l)rond sense: MiHnr v. Miller, 33 Cal. 353. Foreign divorces, validity of: See note to Tnlcn V. Tolen, 21 Am. Dec. 747. A divorce obtained in another state against a non-resident, for whom an attorney appeared without au- tlioritv, is voidable: ElLott v. Woldfrom, 55 Cal. 3S4. S3Cond marriage. — The court, on decreeing a dissolution of tiio marriage, has no |)ower to i'.npose restrictions upon .n, second marriage of either party: Barber v. Barber, 10 Cal. 378. Pleading in divorce causes. — Ordinary rules of pleading are not rendered by statute any the less necessary to be observed in divorce causes: Conant v. Vonaitt, 10 Cal. 249. In fact, nothing can be taken by admission or default: Id. ; the object being to prevent collusion. But it seems that the marriage may be admitted: Fox v. Fox, 25 Id. 587. Eesidenee and nvrriar/e. — The plaintiff must aver and prove the residence in good faith dur- ing the statutory period, -whether denied or not: Bennett v. Bcnne't, 28 Cal. 590; Coidlhnrst v. CouUhnrst, 58 Id. 239; Maxwell v. Maxu-e/l, 53 Ind. 3G3; Powell v. Powell, Id. 513; JJuston Huston, C3 Jle. 181; Burns v. Burns, 13 Fla. 3G9; must allege and prove tlie m.arriage: Ilas- l-ell V. Hasten, 54 Cal. 2G2; Coultlmrst v. Coul- thurst, 53 Id. 230; Brinkley v. Brinkley, 50 N. Y. 134, 193; Collins v. Collins, 80 N. Y. 1; 2 F>i3hop on INIar. i Div., sec. 2C2; Stewart ou Mar. & Div., sec. 354. Residence and marriage are essential ele- ments of t'.ie cause of action in suits for divorce, and it several causes of action are set up in tho sauie complaint for a divorce, each count must contain all the facts necessary to constitute a cause of action, or must make allegations in prior counts a part thereof by ppeciil reference: Haskell v. Hash II, 54 Cal. 2G2. Cut it seems from tlie same decision that even a referenco will be insuflicient if the matters thus sought to be made a part of a count relate to the gravamen of the action. The necessity of making each cause of action complete in pro- ceedings for divorce is further illustrated by the filing a croas-complaint praying a divorce on the ground of the plaintiff's cruelty. De- rendered the pleading materially defective, it could not be helped out by averments in other pleadings in the cause: Coalthurst v. Coul- thurst, 58 Cal'. 239. Grounds of divorce. — In alleging adidtery of the defendant, it should be charged with reasonable certainty as to time and place, so that the defenprcliensions of bodily hann aa further cohahitation dangerous to the physical naturally interfere with the discharge of maritai Civ. Code— 3 33 g§ Ob, OG PERSONAL RELATIONS. [t>iT. I, Part ni. duties: Pomchon v. PowrUoj}, 22 Cal. 3,"S. The ■ exti'ciiio cnicltj' in our divorce act nicciiig the eanio thiii;^ us tho -sfeviici or cruelty of tlio , ICngHsh C'cch-s:.isti':al couita; it I'lay be 1 Cal. ?>G4; butadivorce for this ground is not generally gr.mtcd wlien habitation would 1)C atttnilcd witli bodily li;irin the cruelty is caused by the misconduct of tho to tlie oLlicr; courts grant divorces in such canes uot to jiunisii an ofTcnse already committed, but to relieve tiic complaining party of apprehended danger, and the divorce may follow even in the absence of any actual violence; but if tlicre has been actual violence, it must be attended with . danger to life, limb, or iiealLh, or be sucli as to , cause reasonable apprehension of future dan/Tcr: Monin V. Morris, 14 Id. 70. Any conduct BuUiciently aggravated to produce ill health or v.'ifo who applies: Johnmn v. John-on, 11 Id, 450. Sec, as to misconduct of pUiiutifT as a provocation of tho defendant's coaduct, the note to Pierce v. Pierce, 1.5 Am. Dec. 210. Adultery or habitual int<.'mperancu do not in a legal sense constitute extreme cruelty, but the lattcrisdifTurcnt from any other cause of divorce, and constitutes a senarate and distinct cause of action: llaslcll v. )lnsl:eU, 54 Cal. 232, The acts of cruelty need not bo persistent, nor be- bodily pain, though operating primarily upon come a fixed habit, before relief and safety can the mind only, is legal cruelty; and where it be had by divorce: Mahone v, MaJione, 19 Id. appears that the defendant was in the habit of G2G; as to the sulBciency of evidence to estab- using towards his wife vile and abusive Ian- lish extremo cruelty, see Mai thai v, MaUhai, .guage, falaely charging her with adultery, and 49 Id. 90, and Christie v. Christie, 53 Id. 26. that slie was a weak, nervous woman, and Tiie subject of cruelty as a ground of divorce, modest in her disposition, and that the conduct and the cases, English and American, are cited of the defendant caused her much mental suljfcr- in a note to Poor v. Poor, 29 Am. Dec. 0^14. ing, producing fits of illness, and threatening permanent injury to her health, she is entitled to a divorce on the ground of extreme cruelty: .Povchonv. PoweUo?), 22 Id. ?,')S; Kelhi v. Kelly, 1 West Coast Rep. 143. And if a husband on It is not extreme cruelty on the part of the wife to abandon her husband, go to Germany for the purpose of studying painting, and re- m.r.in away four months: Smith v. Smiih, 62 Cal, 466. 85. Desertion, ichaf. Sec. 95, "Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert. Willful desertion. —Desertion consists of separated from her husband while proceedings, at his instance, were pending against her in ..an actual cessation of matrimonial cohabita- tion between the parties, coupled with the in- tent to desert in the mind of the ofTending ■party: /lardeiibc)-;/ v. Jlardcnherr/, 14 Cal. 034; Morrison v. Morrison, 20 Id. 431; Latham v. Lctlham, 30 Gratt, 307; Stein v. Stein, 5 ' Col, 55. To establish it, three things must be provcil: I. Cessation of cohabitation; 2. An intention in the mind of the defendant this court for a divorce on tho ground of adul- tery: Marsh V. Marsh, 14 N. J. Eq. 315. It was held in RiLckman v. Ruchnnn, 58 How. Pr. 273, that to justify a judgment for a limited divorce on the ground of abandonment, such circumstances must appear as manifest a set- tled and determined purpose in the husband to withdraw from the wife permanently his to desert; and 3. That the desertion was society and jirotection, and to withhold from ■ against the will of the complainant: AVr^r'/i^v. ' ' " " - - Ser'jrut, 33 N. J. Eq. 204. " Willfurdescr- tlon " signifjvos an intentional desertion, and does not imply malice: Bniheit x. Dcnlert, 32 • Cal. 4G7. And to constitute desertion on her part, she must absent herself from her hus- band of her own accord, without his consent, ■ and against his will: Moorvs v. Moores, 10 N. J. Eq. 275; Jenninrjs v. Jemriiii/s, 1.3 Id, 38; McCormich v. McCormich, 19 Wis. 172; and he could not claim a divorce where during the period of separation he has re- mitted his wife not less than forty dollars each month: liaUton's Appeal, 93 Pa. St. 133. And a wife living apart from her husband her the means necessary for her support, but th.e intention to desert will be presumed from the proof of the fact of prolonged abandon- ment without apparent cause: Morrison v. Morrison, 20 Cal. 431. And it is material ■nliat were the circumstances attending the separation, if the wife is in no manner charge- able with it: Pesch v. Besch, 27 Tex. .390. The evidence fails to establish a ground for divoz'ce on the ground of desertion, where it shows that the parties had lived separate for four yeai-s — the plaintifT at the home of her parents; that the defendant ha-d at various intervals con- tributed one hundred and fifty-three dollars in money, and other supplies from the store, under a judgment requiring him to pay her a for the support of the plaintilT, and that the monthly allowance for her separate maintenance plaintifT had never applied for anything fur- isnot guilty of desertion: fVeldv. Weld, 27 Jlinn. ther: Christie v. Christie, 53 Cal. 26. 330. Nor would she be where she voluntarily '98. Desertion, how manifested. Sec. 96. Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, ia desertion. Title I, Chap. II.] DIVOr.CE. §§ 07-100 Refusing matrimonial intercourse. — A re- fusal witliout cause to occupy her husband's bed on the marriage ni'^lit, and leaving' liis house next morning without the intention of returning, constitutes desertion: /'ili/rhn v. Pilrjiim, 57 Iowa, 1^70; but where a husband and wife have never lived together, and the wife evinces a strong disinclination to live with her huiband at all and repulses his advances towanls a reconciliation, and there is a con- sequent separation, tiie liusband is not guilty of desertion: Iicece v. I'eece, 34 N. J. Eq. 32, Actual cessation of cohabitation, however, be- tween the parties for one year, which is inten- tional on the jiart of the wife, and without reasonable cause, entitles the husband to a divorce, though she has during the year visited his house to look after his children, and while there engaged in domestic duties: J'ie v. Hie, 34 Ark. 37. But in Massachusetts, refusal of sexual intercourse for five years consecutively, although not justified by considerations of health, is not "desertion:" Southwkk v. South' wick, 07 Mass. 327. 97. In case of stratagem or fraud, who commits desertion. Sec. 97. When one party is induced, by the stratagem or fraud of the other party, to leave the family dwelling-place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is deser- tion by the party committing the stratagem or fraud, and not by the other. 98. In case of cruelty, where one parly leaves the other, who commits desertion. Sec. 98. 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. Cruelty driving from the home. — If a hus- band drives his wife away, or treats her so brutally as to compel her to Oee for safety, or is 80 cruel and maligant towards her as to show that he means to force her from his home, thougli she leaves the matrimonial mansion, he in law deserts her: SLoaii v. Skean, 33 N. J. Eq. 14S; and compelling her by cruelty to leave him is as much an abandonment as ac- tual desertion on his part: Lcveritij v. Lever- ing, IG Md. 213. And it is in accordance with the soundest principles of public policy and of morclitj", that a wife while living in a state of separation from her husband, in silent submis- sion to her wrongs, shall not be debarred liy any lapse of time from the protection to which s!ie otherwise would be entithd whenever the hus- band shall disturb her peace by an attempted exercise of his marital rights: Cummins v. Cum- mins, 15 N. J. Eq. 138. But although a wife leaves her husband's house through his fault, yet if he afterwards sincerely solicits her to return, and she deliberately and persistently refuses to do so, her conduct constitutes desertion, within the meaning of the New Jersey divorce act: Hooper V. Hooper, 34 Id. 93. And in some states it has been held that in a suit for divorce, the desertion of one party, caused by and justified by the misconduct of the other, is not the desertion of the other: Fern v. Feva, OS Mass. 155; Pidrje v. Pidye, 3 Met. 257; Jles- ter V. Hester, Wright, 210. The code commissioners say of this section that it "is intended to settle a f|uestion dis- cussed as doubtful in Bishop on Mar. & Div., sees. 787, 791, 794." 99. Separation by consent not desertion. Sec. 99. Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion. Separation by consent is not a desertion by cither of the parties: Benkert v. Beii1:ert, 32 Cal. 407; McGoicen v. MrUoiceii, 52 Tex. 657, 606; Cox V. Cox, 35 JNlich. 4G1 ; Pudd v. Hudd, 33 Id. 101; McCormickw McCormick, 19 Wis. 172; Latham v. Latham, 30 Gratt. 307; Simp- son V. Simpnon, 31 Mo. 24; Hanlinson v. Haiilc- inson, 33 N. J. Eq. 66. Nor need the consent be expressed: it may be inferred from conduct: Oral) V. Gray, 15 Ala. 779, 784; (Jilliuwater v. Oillinwater, 28 Mo. 60; as where a husband acts as though he wished his wife would remain away long enough to make it a ground for divorce: Cornish v. Cornish, 23 N. J. Eq. 208. And compare sec. 113, po.it. The absccce of any understanding in regard to getting a divorce makes no difTereuce: Benkert V. Benkert, 32 Cal. 467. Consent revocable: See infra, sec. 101. 100. Separation^ when becomes desertion. Sec 100. Absence or separation, proper in itself, becomes desertion when- ever the intent to desert is fixed during such absence or separation. [Amend' ment, approved March 30, 1874; Amendments 1873-4, 189; look effect July 1, 1874.1 Intent to desert is an essential element of desertion, and will turn an alwence, proper in itself, into desertion when the intent is fixed: Peed V. Peed, Wright, 224; see Stewart oo Mar. & Div., sec. 254. 35 §3 101-108 PERSONAL RELATIONS. [Div. I, Pakt III, 101. Consent to separate revocable. Sec. 101, Consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion. Consent revocable. — The consent to a sep- Id. .3G3. And if the other party refuses to arai'ion h rev ocaUlo : Bndrrt V. Ben Ice rf, ^2 CclL renew cohabitation, it is desertion hy him: 467; Crow v. Crow, 2.') Ala. 58.3; J/ankinson v. llnnk'maon v. Ilankinson, supra; McAllister v. JIankinson, .33 N. J. Eq. CG; Schanck wSchanck, McAllister, 10 Heisk. 345. 102. Desertion, how cured. Sec. 102, If one party deserts the other, and before the expiration of the Btatutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfill the marriage contract, and solicits condonation, the desertion is cured. If the other party refuse such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal. [Amendment, approved March 30, 1874; Amendments 1873-4, 190; tooh effect July 1, 1874.] Offer to return liy the deserting party, after accepted, nor will it defeat the action for di- tho expiration qf the statutoi-y time making tiie vorce: Brnkert v. Benkert, 32 Cal. 4G7. absence a ground for divorce, need not be 103. Wife must abide by husband's selection of home, or it is desertion on her part. Sec. 103. The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion. Husband may fix residence: See the Ilanlenberg, 14 Cal, 654; same principle, sec, authorities colleotcd in Stewart on Mar, & I.IG, pout. Div., sees. 221, 2oV, and tlic discussion in 2 Soparato domicile for purposes of Bishop on Mar. & Div,, sec, 124; JJardenberj v, divorce proceeding: See infra, sec, 129, 104. If the place is unfit, and ivife refuses to conform, it is desertion by the /ms- bnnd. Sec 104. If the place or mode of living selected by the husband is un- reasonable 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. See reference to text-books in note to last section. 105. Willful neylect, what. Sec. 105. "Willful neglect is the neglect of the husband to provide for hig ■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. "Willful neglect, — This section makes two is not willful neglect: U'axhburn v, Washburn, distinct classes of conduct constituting willful 9 Cal. 475; Rjcraft v, Rijcraft, 42 Id. 444. The neglect. If the complaint declares on one and theory of these cases is that the earnings (»f the the court finds tlie other, the ilecree cannot be wife are community property, that the luisband supported: Dcvoe v. Devoe, 51 Cal, 543. has control of the com nunity property, and UavliKj abiliti/ to provide necessaries, as used that his not preventing the wife from using her by tlie statute prior to the code, one similar iu earnings for her own maintenance is in law an this pa.rticular to the above provision refers to applicaaon by the liusbaud of the same for her the possession by the husband of the means in support, and therefore not neglect. This rea- propcrty to provide such necessaries, and not soniag would lose its most important factor to his capacity of acquiring such means by where the parties are living sejjarate: Sec sec. labor: Waxhburn v. IVofihbiu-n, 9 Cal. 475. 163, infra; for then the earnings would be tho If (he wife\f lamimji are sufficient for her separate property of t!ie wife, giving therefore support, and the husband allows her to apply no opportunity for this constructive control them to that purpose, his refusal to contribute ovej* them by the husband. 106. Ilabitual intemperance, what. Sec. lOG. Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon an innocent party. 36 Title I, Chap. II.] DIVORCE. §§ 107-115 Habitual intemperance. — This section cov- tion 94 in regard to the mental suffering occa- ers two classes of conduct, each of which will Bioiied hy "extreme cruelty;" and consult //cw- constitute habitual intemperance. The first ir/ v. y/«4r//, 54 Cal. 2G2, showing that intoxi- olass, referring to the inability to attend to busi- cation of defcmlant may be used as the basis of ness hy reason of intoxication, has thus been proceedinL,'s for divorce on the ground either of defined: " If there is a fixed habit of drinking extreme cruelty or of liai)itual intemperance, to excess, to such a degree as to disqualify a Sp<:aking of this clause, the code coumiission- person from attending to his business during ers say: "The lust clause of the section is new. the principal portion of the time usually de- It speaks for itself. The presence of an habit- voted to business, it is habitual intemperance, ual drunkard at home casting reproaches and althougli the person nuiy at intervals be in a indignities on his wife ought to be a better condition to attend to his business affairs:" cause of divorce than being drunk at his place Mah lie V. Mahone, 19 Cal. 626, 629. of business." The mental anguish occasioned by the Duration of intemperance: See next sec- intemperance of the party — compare with sec- tion. 107. Habitual intemperance for one year. Sec. 107. Willful desertion, willful neglect, or habitual intemperance must continue for one j'ear before either is a ground for divorce. Duration of cause for divorce. — Formerly If there is no finding that the offense contin- willful desertion was requireil to continue for ued fur the statutory time — here habitual in- two years before it constituted a ground for temperance — the judgment will be reversed oa divorce: Conaiit v. Conant, 10 CaL 249; Benkert appeal: Dunn v. Dunn, 62 Cal. 176. V. Uenkert, 32 Id. 467. AKTICLE III. CAUSES FOE DENYINQ crVORCE. 111. Divorces denied, on showing what. Sec. 111. Divorces must be denied upon showing: 1. Connivance; or, 2. Collusion; or, 3. Condonation; or, 4. llecrimination; or, 5. Limitation and lapse of timeu Connivance defined: Sees. 112, 113. llecrimination defined: Sec 122. Collusion defined: Sec. 114. Iiimitation of action; Sees, 124 et seq. Condonation defined: Sees. 115 et seq. 112. Connivance, what. Sec. 112. Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. Connivance. — A very concise and complete defined and explained; section 300, in which collection of cases upon the various questions the cpiestinn of the necessity of pleailing it ia arising out of this defense will be found in raised; section 301, discussiug tiie proof of tlio Stewart on Mar. & Div., in the following sec- defense. In 2 Bishop on Mar. & Div., sees. 4- tious: sections 293, 29S, w.here connivance is 27, is au able discussion of this subject. 113. Corrupt consent, how manifested. Sec. 113. Corrupt consent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of. 114. Collusion, what. Sec. 114. Collusion is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. Collusion ditfers from connivance in that be found to he collected in Stew.art on Mar. & the fonner is founded upon the agreement of Div. , sees. .302 et seq.; see also 2 Bishop on Mar. the parties to do that which will enable one of & Div., sees. 2S et seq., for a treatment of this them to procure a divorce. The decisions will branch of the law of divorce. 115. Condonation, what. Sec. 1 15. Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce. 37 §§ 116-122 PERSONAL RELATIONS. [Drv. I, Part IH, Condonation is a conditional forgive- Condonation does not wipe out tin; ofTe ise con- ness. Its reipiisitea are stated ill tlio succeed- doned: licidcrt v. AVw/.p/V, 32 Cal. 626. ing sections, in liannony witli legal principles Revoking condonation: Sec. 121, infra. settled by judicial decision, as will apjjear Condonation of recr imina tory defanse; from 2 Bishop on Mar. A. Div., sees. 33 et b&\.; Sec. 123, itost. and Stewart on Mar. & Div., aecs. 307 et seq. 116. Requisites to condonation. Sec. IIG. The following requirements are necessary to condonation: 1. A knowledge on the part of the condoner of the facts constituting the cause of divorce; 2. Reconciliation and remission of the offense by the injured party; 3. Restoration of the offending party to all marital rights. 117. Condonation implies what. Sec. 117. Condonation implies a condition subsequent; that the forgiving party must be treated with conjugal kindness. 118. Evidence of condonation. Sec. 118. Where the cause of divorce consists of a course of offensive con- duct, or arises in case of cruelty from successive acts of ill treatment which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts con- stituting such cause, unless accompanied by an express agreement to condone. \Ammdmmt, approved March 30, 1874; Amendments 1873-4, 190; took effect July 1, 1874.] 119. Condonation, when can he made. Sec 119. In cases mentioned in the last section, condonation can be made only after the cause of divorce has become complete, as to the acts complained of. [Am^'ndmeni, approved March 30, 1874; Amendments 1873-4, 190; took effect July 1, 1874.] If20. Concealment of facts in certain cases makes condonation void. Sec. 120. 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. 121. Condonation, how revoked. Sec. 121. Condonation is revoked and the original cause of divorce revived: 1. When the condonee commits acts constituting a like or other cause of divorce; or, 2. When the condonee is guiltj'^of great conjugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the con- ditions of condonation had not been accepted in good faith, or not fulfilled. Revoldng condonation. — "As to subdivis- judi,'e3 and lawyers relates to the latter [this] ion 2, Mr. Bishop, above cited (2 Mar. & Div., branch of the proposition.' It is best to settle sec. .'io), says: ' The difference of opinion among the question:" Code commissioners' note. 122. Recrimination, what. Sec. 122. Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. Recrimination "This simple section set- The cross-complaint setting up recrim- tles many eonflicLing points arising from the inatory matter must contain allegations of all practice of leaving with the courts a wide dis- facts requisite to entitle the defendant to the cretion as to4what degree of bad conduct or relief asked. Therefore, in such case, both res- vhat degree of proof of causes of divorce shall ideiice for the statutory time and marriage Le required when they are shown in recrimina- must bj pleaded by the cross-complainant: tion, or whether unbko causes of divorce can Cou^f hurst, v. Coul'hurx'^ 58 Cal. 2.'>9. be shown: " Code conunissioners' uote. Defeudaut, though successful, paying See the doctrine of recrimiiiatiun discussed alimony to plaint! if: See sec. 137, note. ia Conaiit v. Conant, 10 Cal. 249. 38 Title I, Chap. II.] DIVORCE. §§ 123-127 123. Condonation as a recriminatory defense. Sec. 123. Condonation of a cause of divorce, shown in tlie answer as a recriminatory defense, is a bar to such defense, unless the condonation bo revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the condonation, and before the accruinj^ or completion of the cause of divorce against which the recrimination is shown. [Amendment, approved 3Iarck 30, 1874; Amendments 1873-4, 190; took effect July 1, 1874.] Condonation of recriminatory defense. In proposing their amendment, As-hich evi- Theaboveamcmlment certainly does not clearly dently went only to the revocation ol the con- express what must have been intended by the donation, and was designed to make the section code examiners. The history of the section is in this particular a little clearer, the cod© as follows: The code commissioners, alive to the examiners overlooked the effect that such ditlicalties of the effect of a condonation upon change in the language would have on the last a recriminatory defense — dilEculties which they clause, whicli they altered only by shortening said would he elucidated to some extent by the period of time to elapse since the condona- reading 2 Bishop on Mar. & Div., sees. 9(5- tion. It cannot be possible that the code 100 — declared that "it would be better to examiners intended to say that a condoned de- have some rule, even if it some times works a fense may be pleaded if two years have elapsed hardshii), than to have confusion arising from since it was condoned. Such a construction ia deciding each case upon its merits." They contrary to otlicr provisions of the code (sees, therefore proposed this section: " Condonation 124 et seq.), limiting the time wlien actions for of a cause of divorce shown in the answer as a divorce may be brougiit, and in effect would be recriminatory defense is a har to such defense saying that the condoned party never can get when the coudonee has fully performed the a divorce if the condoning jiarty will hut wait marital duties, and is without reproach since two years from the condonation before commit- tlie condonation ; or if three years or more has ting the act which otherwise would be cause elai)sed after the condonation and before the for divorce. accruing or completion of the cause of divorce The section has the same meaning as waa against which tlie recrimination is sliown. " boine by the original somewliat differently In oblier words, this original section said that a worded section; i. e., a. recriminatory defense condoned recriminatory defense was not a bar to cannot bo set up as bar when it has been con- the action if the condonation had not been re- doned, and the condonation not revoked, or yoked; and that if three years had elapsed where two years have elapsed since the ci;ndo- since tiie condonation, before the accruing of nation and the commission of the offense com- the cause of divorce sued on, the condonation plained of by the plaintiff, could not be revoked. 124. Limitation of action for divorce. Sec. 124. 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 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 commencenjent of the action. [Amendmeid, approved March 30, 1S74; Amend' meiiis 1873-4, 191; took effect July 1, 1874.] 125. Lapse of time establishes certain presumptions. Sec. 125. 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 maiTiage relation notwithstanding the commission of such offense. See Bishop on Mar. & Div., sec. 108. 126 Presumptions may be rebutted. Sec. 120. The presumptions arising from lapse of time may be rebutted by • showing reasonable grounds for the delay in commencing the action. 127. Limitation of time. Seo. 127. There are no limitations of time for commencing actions for ■ divorce, except such as are contained in section one hundred and twenty-four. . 33 Sg 128-I3t PERSONAL Relations. [Div. i. Part III, " Before the adoption of this code there was no fipecifio liinitation in divorce cases. l^he only st.itnte npon the subject was the act of 1S50, Stats. 1850, p. .'M3, as follows: 'An action for relief not hereinbefore provided for must be commenced within four years after tho cause of action shall have accrued.' Tho New York civil code provides four yeai-s' lim- itation in cases of adultery. Upon a careful examination of the laws of the dilFercnt states upon the .subject, it appears very difficult to establish any exact rule of time, however de- sirable such a rf.Ie might be. There are so many instances of efforts at reformat'on — so much waiting and ho[)ing before {iiiaily at- tempting to break, judicially, the marriage re- lation — that any arbitrary rule which would force the party to commence an action or lose the remedy would defeat the discharge of the most Christian duties arising from the relation, or deprive the party of all relief when all efforts fail: Peliew v. Pelli^W, 1 Sw. & Tr. 55.3; also Matthews v. Matthews, Id. 499:" Code commis- sioners' note. 128. Divorces granted when. Sko. 128. A divorce must not be grafted unless the plaintiff Las been a resident of tbe state for six mouths next ^preceding the commencement of the action. Residence essential^ and must be alleged and proved: See antes note to sec. 92. To guard against fraud upon the court, it is requi- uite that tho residence be not temporary merely and taken for the purpose of divorce: Cross- man v. Grossman, 33 Ala. 486; Way v. Way, 04 111. 400; WhUcomb v. WhUcom'i, 46 Iowa, 4.37; Serrall v. Scwall, 122 Mass. 150; Datcher V. Datclyr, 39 Wis. 051; see also Stewart on Mar. & Div., sec. 223. 129. Proof of actual i-esidence required — Presumptions do not apply. Sec. 129. In actions for divorce, the presumption of law that the domicile of the husband is the domicile of the wife does not apply. After separation, each may have a separate domicile, depending for proof upon actual residence, and not upon legal presumptions. "Wife may have a domicile, for the pur- fatt, 5 Cal. 280. And see a host of decisions E OSes of divorce proceedings, separate from her collected in Stewart on Mar. & Div., sec. 221, usband, and may bring her action in the state together with a citation of English decisiona ■where she is in fact domiciled: Moffatt v. Mo/- holding diHex-eutly. 130. Divorce not granted by default, etc. Sec. 130. No divorce can be granted upon the default of the defendant, or upon the uncorroborated stafpineut, r-dmission, or testimony of the parties, or upon any statement or finding of fact made by a referee; but the court must, in addition to any statement or finding of the referee, require proof of the facts alleged, and such proof, if not taken before the court, must be upon written questions and answers. [Amendment, approved March 30, 1874; Amendments 1873-4, 191; took efect July 1, 1874.] Proof requisite for divorce. — The above eectiou does not mean that admissions and statements of the parties are not to be received ia eviilcnce in divorce jjroeeediugs, but simply prevents granting a divorce on them alone: Baker v. JJaLer, 13 Cal. 87; Evans v. Evans, 41 Id. 103. Confessions or admissions of a de- fendant are admissible: Id. The object of the rule requiring corroboration of defendant's con- fession is to guard against collusion *, Baker v. Baker, supra. For examples of what was deemed sutiicient corroboration, see Evans v. Evans, supra; Matlhai v. Matthai, 49 Id. 90; Fuller v. Fuller, 17 Id. 005. Reference. — It is tho duty of referees in divorce causes simply to take, not to pass upon, the testimony. If the referee find any fact, the court should disregard it and base its de- cree upon testimony alone: Baker v. Baker, 10 Cal. 527; Benkert v. Benkerl, 32 Id. 467. ARTICLE IV. GENERAL PROVISIONS. 136. Relief in some cases, where separation denied. Sec. 13G. Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of iliem, by the husband. Alimony generally: See next section and note. 137. Expense of action for divorce. Sec 137. When an action for divorce is pending, the court may, in its dis- -cretiou, require the husband to pay, as alimony, any money necessary to enable 40 ,31. interlocutory Judgment. In actions '<>f <"™'«; l°e "rnte^rnnarti^nf must t.oteupon .e entered a co-rrnsly! « » determines that the d.vorce on.^^J^ ^^ .ranted, an interlocutory ^»^^-™ .J",',', '„n decide, is "^Z T.'L'rTZ Cn:s"„ 'nt'eriocutor, Judgment r rea'r ^avT taKen wi.Mn si. montit, ..tter iu en^^ry ,„ tne same --".-^ ^ ^rt^elSL^cutory /ud/ment, rSef partrSn";«ve tne ri.Wt to ----;-»» Without the consent of the other] (In effect 60 daj Ind after April 16. 1909. Stats. 1909. Chap. G^.J ^^^^^ ^^^^_ Title 1,- Cuap. Il] DIVORCE. §§ 13S, 139 the Avife to snpjTort herself or her children, or to prosecute or defend the action. Y/hen the husband willfully deserts the wife, she may, without apply- ing for^a divorce, maintain in the superior court an action against him for per- manent support and maintenance of herself, or of herself and children. During the pendency of such action the court may, in its discretion, require the hus- band to i^ay, as alimony, any money necessaiy for the prosecution of the action, and for suj^port and maintenance, and executions may issue therefor, in the discretion of the court. The final judgment in such action may be enforced by the court by such order or orders as, in its discretion, it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court. [Amendment, approved April G, 1880; Amendments 1880, 4 {Ikin. ed. 122); took effect immediately.] The original Bectiou contained the first band's fault, he may be compelled, after Bentcuco only Alimony. — The power to decree alimony falls witliiii the general powers of a court of equity. It exists independent of statutory authority; and in a proper case, the court exer- cising this original and inherent power may decree alimony to the wife independently of any proceed ng for a divorce or separation: Gcdlaud V. (Jalland, 38 Cal. 2G5. In view of this decision, the provision made by the amend- ment or 1S7S for such alimony without appli- cation for divorce doubtless was induced by excess of caution. The amendment of 187S was altered in ISSO simply to conform the reading of the section to the new constitution. The court, in fixing the alimony, may re- gard the earnings of the husband or his ability to earn money: Eldenmuller v. Eideiimuller, 37 Cal. 3G4. And the payment of alimony may be decreed whether the wife is plaintiff or defendant: Evai/e Perkins, IS Cal. 60; Ex ],art>' Voltrdl, 59 Id. 417. That the husband may purge himself of contempt by showing t'lat he is unable to oiicy the order, and that his inability to pay the sum directed has not been occasioned by his own act for the pui'pose of avoiding payment: Llalland v. O'ldlaml, 44 Id. 475; Ex parte Coltrc.'l, 59 Id. 417. The question of aliility to comjily with the order is one of fact, to be determined by the cour': Ex parte Cottrdl, supra. Counsel fees. — The alimony provided for by this section includes counsel fee: Ex parte I'erLiiis, IS (.'al. GO; EidenmuUer v. Eidnnmdler, 37 Id. 3G4; Lowell v. Lowell, 55 Id. 31G, where on a recriminatory defense made out the de- fendant was held to pay cOunscd fees to plaintiff. Order for payment of alimony appealable: See Sharon v. Sharon, 6 West Coast Uep. 856. port: 138. Orders reffpecting custody of children. Sec 138. In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. muller, 37 I<1. 364, the three younger children were given to the plaintiff, the mother, and the two older to the father. The autiiorilies on the many questions sug- gested by this section are collated in .Stewart on Mar. & uiv., sees. 400-402. And tiic princi- ples involved are treated in 2 Bisliop on ^lar. & Div., sees. 525-559. Exclusive control of child without dl* vorce: Sec. 199, 214. Awarding custody of child, considerations that should guide the court: ISee po I, sec. 246. Custody of children: See Wihon v. Wilxon, 45 Cal. 399, where custody of child was awarded to the mother; and in Wand v. Wand, 14 Id. 512, where tl)e wife obtained the divorce on the ground of the husband's extreme cruelty, the mother was held entitled to the custody of a female child of tender years — the father having the right to visit it. This case furnishes a very excellent discussion of the subject. See Mdler v. Miller, 33 Id. 353, where the custody of the children was awarded to the husband on a decree of divorce from his wife for her adultery. In EidenmuUer v. Eidcn- 133. Support of wife and children on divorce or fteparation granted to wife. Sec 130. Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life, or for a shorter period, as the court may deem just, having regard to the cir- cumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects. 41 §§ 140-146 PERSONAL RELATIONS. [Div. I, Part HI, Alimony •where ■wife in fault. — Tn Everett beyond that directed to he paid by the jndg- ▼. Everett, 52 Cal. 383, an order directing the ment entered in the action, see Ex j^arte Cot- husband, on granting him a divorce for the ex- trcH, 59 Cal. 417. treme cruelty of his wife, to pay her monthly That the appellate court may lessen the alimony, was set aside, the supreme court say- amount of tlie monthly installment directed by ing there was no authority for such an order. the lower court to be paid to the respondent, Modifying order for alimony. — That tlie see Eid'-nmuUer v. EidenmuUer, 37 CaL 3G4. court may increase the amount of alimony Compare with sec. 148. 140. Security for maintenance and alimony. Sec. 140. The court may require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case 141. Court ahall resort to what, in executing certain sections. Sec. 141. In executing the five preceding sections, the cotirfc must resort: 1. To the community property; then, 2. To the separate property of the husband, 142. If wife has sufficient for her support, court may withhold allowance. Sec. 142. "When the wife has either a separate estate, or there is community property sufficient to give her alimony or a proper support, the court, in its dis- cretion, may withhold any allowance to her out of the separate property of the husband. 143. Community and separate property may be subjected to support and educate children. Sec. 143. The community property and the separate property may be sub- jected to the support and education of the children in such proportions as the court deems just. 144. Legitimacy of issue. Sec 144. When a divorce is granted for the adultery of the husband, the legitimacy of children of the marriage begotten of the wife before the com- mencement of the action is not affected. L3gitimacy of c hildr en; See generally, sec 193, post, and references in note thereto. See also the next section. 145. Same. Sec 145. "When a divorce is granted for the adultery of the wife, the legit- imacy of children begotten of her before the commission of the adultery is not affected; but the legitimacy of other children of the wife may be determined by the court upon the evidence in the case. Presiimption of legitimacy: See the references in note to last section. 146. Community property and homestead, how disposed of on divorce. Sec 14G. In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the commuity property, and the homestead, shall be assigned as follows: 1. If the decree be rendered on the ground of adultery or extreme cruelty, the community property shall be assigned to the respective parties in such propor- tions as the court, from all the facts of the case and the condition of the parties, may deem just; 2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties; 42 Title I, Chap. II. ] DIVOKCE. §3 147, 148 3. If a homestead lias "been selected from the community property, it may be •assigned to the innocent party, either absolutely or for a limited period, sub- ject in the latter case to the future disposition of the court, or it may, in the discretion of the court, be divided, or be sold and the proceeds divided; 4. If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party. \Amendine)it, approved March 30, 1874; AmendmenU 1873-4, 191; took effect Juhj 1, 1874.] Dissolution of marriage. — Subd. 1. Com- ants in common with respect to it: McLeran munili/ projtertij, on a divorce for adal'ery, may be all awardcil to tlic innocent party — in tiiis case to the liusb:ind: Miller v. Miller, 3."J Cal. 353. Aiul the first and t-ecoud subdivisions of this section, when read together, give rise to the inference, and it was accordiaijly so deci led in Ediivjer v. L\sliii;;cr, 47 Cal. GJ, l54, tliat if a di- vorce be granted on tiie ground of adultery or extreme cruelty, "the injured party is to re- ceive, as a general rule, more than one half of the property, and as much more as the court shall deem just." In Eid'.nmuUer v. Eidenmuller, 37 Cal. 3G4, the bulk of the community projierty, here the house and furniture, were awarded to the plaintilT, ami a horse and bugj?y to the defend- ant, a phj'sician, whose cruelty toward plaintiff was ihe cause for divorce. Where the community property is awarded to the parties equally, they thence become ten- neiiton, 31 Cal. 20. Subd. 3 and 4. Homestead on a decree of divorce when declared ou the community prop- erty may be either partitioned or set apart to one of the parties as common property: Oimmy V. Doane, 20 Cal. G35. Where the homestead is i:artitioned between the husband and wife on a divorce, the land loses its homestead charac- ter, and may be seized on execution: Shoemake V. Ckalj'unt, Al Cal. 432. But whether or not the property is a home- stead is a question which tiie parties may liti- gate in the divorce proceeding: Elmore v. El- more, 10 Cal. 224; Loioeil v. Lou-e'l, oo Id. 316. It is not necessary, however, to o:ie's right to have the homestead set apart tn actually pray therefor, if the existence of sucli homestead is alleged in the complaint: Gimmy v. Gimmy, 22 Cal. 633. Discretion of court: See sec. 148, and note. 147. Order of court for disposition of property. Sec. 147. The court, in rendering a decree of divorce, must make such order for the disposition of the community property, and of the homestead, as in this chapter provided, and whenever necessary for that pui-pose, may order a partition or sale of the property' and a division or other disposition of the proceeds. [Amendment, approved March 30, 1874; Ameiidmeuts 1873-4, 192; took effect July 1, 1874.] See note to next section. Miller, 33 Cal. 353. But a decree of divorce If tlie divorce is granted because of simply for the cause of adultery do-is not do- adultery, tlie court may award all the com- privc the guilty party of his i:iterest in tlie com- mon property to the innocent party: Miller v. munity property: Godey v. Godeij, 39 Id. 157. 148. Order subject to revision on appeal. Skc. 148. The disposition of the community property, and of the home- stead, as above provided, is subject to revision on appeal in all particulars, includiug those which are stated to be in the discretion of the court. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 192; took effect July 1, 1874.] Discretion reviewable. — The action of the court in dispo>^ing of the community property or homestead is reviewable on appeal, and if it has not awarded a sulliciently large portion uf the same to the plaintiflf, the appellate court will increase it: EsUiir/er v. E4iiifjer, 47 Cal. 62; Brown v. Brown, 60 Id. 579." Or if the monthly aPowancc decreed to be paid for the support of the wife ii thuuglit to Ijo excessive, the appellate coui-t will reduce it: Eideumuller V. Eidenmuller, ?>! Id. 3G4. But the exercise of the ti'ial court's discretionary power in this matter will not be interfered with by the ap- pellate court, unless it be abused: Lake V. Lake, 4 West Coast Rep. 150 (Xev.). In Bovo v. Bovo, G3 Cal. 77, plaintiff asked a divorce on the ground of the ilefendant's adulti-ry, which she denied, and filed a cross- complamt praying for a divorce on the ground of tlie husband's extreme cruelty. A divorce was granted— on what gmund, it docs not ap- pear — and nearly (mo half of tlie comnmnity properly was award'.'d to the defcu'lant. The appellate court refused to reverse the judg- ment for abuse of discretion. 43 |§ 155-lGO PERSONAL RELATIONS. [Div. I, Pakt HI, CHAPTER III. HUSBAND AND WIFE. 155. lifufiial obligations of husband and wife. Sec. 155, Husband and wife contract towards each other obligations of mutual respect, fidelity, and support. Mother aiding in support of children: Husband's support of wifs: See infra. Sec. 10(5, po>:f. Bees. 174, 175, and ante, sec. 105, wliere the Wlfo's support of husband; See infra, failure so to do gives ground for divorce. Bee. 17G. 156. Eighls of husband, as head of family. Sec. 15G. The busband is tbe head of the family. He may choose any rea- sonable place or mode of living, and the wife must conform thereto. Head of family for homestead purposes: Husband's selection of dwelling-place, ScL' ;«>/, sec. 12ul. desertiou if wife does uot conform thereto: Parent changing residence of child: Sec. Sec. 103. 213, I'O.^t. 157. In other respects their interests separate. Sec 157. Neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other's dwelling. 158. Husband and wife may make contracts. Sec 158. Either husband or wife may enter into any engagement or trans- action with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential rela- tions with each other, as defined by the title on trusts. Married vsroman's contracts. —Prior to tlie gage, see Parry v. Kelley, ?>2 Cal. 334; Wood v. code, the wife l^ibored under the common-law Urjbrd, Id. 412; Marlow v. Barleiv, 53 Id. 458; disability in rcLjard to making contracts: Piatt Alexander v. Bonton, 55 Id. 19, 20; Brickell v. on RiThts of Married Women, see. 19; Bofoe Bntchelder, 62 Id. 023. V. Kii'li!e, 4 Cal. 285; Simpers v. S/onn, 5 Id. Coiitracta between husband and wife. — 453; Poo! V. Gvrard, 6 Id. 73; Liming v. Where the husband and wife enter into a con* Brady, 10 Id. 2DS; Shaver v. Bear R. 9. The husband can make a gilt to the wife of either his .separate or of the community j)rop- erty, and it will become lier separate property: Kohnrr v. Ashenaner, 17 Cal. 582; Pick v. Brununaijim, 31 Id. 445; Kane v. De^vi'ind, Len-U V. Johns, snpra. Accnmnlations arising out of the indu.stry and skill of tbe husband expended upon his land are his separate prop- perty: Estate of lliggins, 3 West Coast Rep. 358. .So property purchased during coverture, with funds forming part of the hu.sband's or wife's separate estate, will be separate jn-operty: Id. ; Ramsdell v. Fidler, 28 Cal. 37. Where the luisband manages the wife's separate pioperty, lie must manage it as her separate estate, and she is entitled to enjoy the income: WdiOii v. Wilson, 3G Id. 447. The wife may, with her separate funds, buy from the husband land which is his separate property, and there will ari.se no prcsumi)tion that such land becomes community property: Jhtsseii V. Caslle, 41 Cal. 239. Conflict of laws as to cliaracter of prop- erty. — A luisband and wife may be married in one state, move to another, and finally reside in another, or they may be married in a state where they do not reside, or where ]iroperty owned liy either or both is not situated, or 63 Id. 4(J4. If the husband voluntarily pays after marriage they may acquire property out out money in the construction, of a house on the land of his wife, the house becomes her eeparaie estate: Reck v. Briinnnagim, 31 Id. 440; so valid gifts from liusb.md to wife: Barker y. Konernan, 13 Id. 9; lliissey v. Castle, 41 Id. 241; Kane v. J)esmond, 63 Id. 4G4. A deed from a third person to the wife for a considera- tion i)aid by the husband, the deed reciting the projierty to be " her se[>arate property, and to and for her sole ami separate use," constitute the priiiii.«es her separate estate: Swain v. Dimne, 48 Id. 358. Bequest, devise, or descent— Property ac(piir, 17 Id. 537; Kai/s V. Phelan, 19 Id. 128. In a suit against tlic husband for services rendered l>y the plaint- iff to the wife before her marriage, judgment may be entered against both defendants, with a direction that it be enforced against the sepa- rate property of the wife and tiie common l)ropeity of both: Van Minard, Dallam, 543. full discussion and collection of cases in Platt'a "Wife's rsmedy for husband's A?irfonsful Rights of Married Women, sees. 37 et seq. disposal of community property. — On ihis Dissolution of the commuaity by di- imiKjrtaut matter there are some valuable sug- vorce: See sees. 147, 148. 173. Courtesy and dower not allowed. Seo. 173. No estate is allowed the husband as tenant by courtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. 174. Unhand liable for support of wife. Sec. 174. If the husband neglect to make. adequate provision for the sup- port of his wife, except in the cases mentioned in the next section, any other person may, in good faith, suppl}-- her with articles neces.sary for her support, and recover the reasonable value thereof from the husband. \A)nendmeni, approved March 30, 1874; Amendments 1873-4, 193; took effect July 1, 1874.] Husband's liability for ■vyife's neces- The questions suggested by section 175 also B£iries: See a careful statement of the law on receive attention in that note. Van Marrn v. this subject, now well settled, with citations Johnsoii, 15 Id. 308, supports tlie principle de- from tlie decisions of various courts, in the note clared in the above section. See next section to CunuiiKjIiam v. Irwin, 10 Am. Dec. 458, 4G2. aud note. 175. When not liable. Sec. 175. A husband abandoned by his wife is not liable for her support ■until she offers to return, unless she was justified, by his misconduct, in aban- doning him; nor is he liable for her support when she is living separate from him by agreement, unless such support is stipulated in the agreement. [Amendment, approved March 30, 1874; Amendments 1873-4, 193; toolc effect July 1, 1874.] Husband's liability for wife's support: citeil and held not applicable to the facts of the See reference in note to last section. Section case in IleiLcy v. Sargent, 54 L'al. 3'J7. 176. When wife must support husband. Sec. 17G. The wife must support her husband, wlien he has not deserted her, out of her separate property, when he has no separate property, and there is no community property, and he is unable, from infirmity, to support himself. [Amendment, approved March 30, 1874; Amendments 1873-4, 194; took effect July 1, 1814:.] Mutual obligations of support: See sec. 155. 177. Hiyhts of husband governed by what. Sec 177. The property rights of husband and wife are governed by this chapter, unless there is a marriage settlement containing stipulations contrary thereto, 178. Marriage settlement contracts, how executed. Sec. 178. All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. 4S Title II, Chap. I.] CHILDREN BY BIRTH. §§ 179-194 Marriage settlements Where a man and woman entered into an agi-eemeiit whereby they nuitually pi-omisecl to intermarry within a reasonable time, and the man promised to give certain bonds to the woman on or before the day of their marriage, such an agreement cannot be avoided by his neglecting to marry the woman. It is his duty to seek iier, not liera to seek him, and upon his refusal to marry her after waiting a reasonable time she cnn re- cover the bonds: Connor v. Stanley, Adm'r, 2 \Yest Coast Rep. 749. See a comprehensive note to MfrrUt v. Scott,- 50 Am. Dec. 471, diseusaing this subject. 179. To he acknotoledged and recorded. Sec. 179. Wben such contract is acknowledged or proved, it must be recorded in tlie office of the recorder of every county in which any real estate may be situated which is granted or afTected by such contract. 180. Effect of recording. Sec. 180. The recording or non-recording of such contract has a like eflect as the recording or non-recording of a grant of real property. 181. Minors may make marriage selllements. Sec. 181. A nainor capable of contracting marriage may make a valid marriage Bettlemeut. TITLE II. PARENT AND CHILD. Chapter I. By Bibth 193 IL J3t Adoption 221 CHAPTEE I. CHILDREN BY BIRTH. 193. LegHimacxj of children horn in wedlock. Sec. 193. All children born in wedlock are presumed to be legitimate. "Children." — Speaking of this word, the court, in Esiutp of Wankll, 57 Cal. 484, 491, eay that its meaning "has been greatly en- lai'ged from what it was at coinniou law. If courts weic now to restrict the word to its common-law meaning, all children horn of an which siie had been excluded, the will not mentioning her. She waa permitted to uuico in and iiilierit. Cliild born in "w^edlock is presnuied to be the child of the husband, and where a maa marries a woman with cliild, he knowing that nnlawfnl marriage, all children by adoption or fact, he is presumed to be the father: Baker v, ai knowletlgiiient vi their father, and all chil- Baker, I.S Cal. 87. dreii who.so parents intermarried subse(|uent to their birth, wduM be excluded from rights of inheritance or succession. But by statute law, the odspring of marriages null in law (Civ. Code, sec. .ShI), cliildren born out of lawful wed- lock wli(jse parents snlisoquently intermarried (111., sec. "ii.'.), and cliililren by aciiuowledg- mentorudoption of tlieir father (Id., sees. 'IIA, 2J7, 'J"iS, •»»:{()), are all legitimate. These, although iiic;i|iacitatrd at connuon law trom Buccecding to any riglits of tlieir father, are regarded tor ail purjioses as legitimate from the time of tluir birth." Thi.s was said in a cause involving the right of an illegitiniato child to iidiurit part of her mother's estate from Legitimacy of children of nullified mar- riage: See ante, sec. 84. Legitimacy in cases of adultery : See ante, sec^. 144, 14."). Rebuttiug presumption of legitimacy: Sec. 111.'), infra. Legitimating children by marriage of paieuts: See sec. 21."), post. Father legitimating child by acknowl- edging it: Sec. 230; and compare sec. 1387i JiO^t. Illegitimate's earnings: See sec. 200. Illegitimates, heirs to whom: Soc. 1.^87, poHf. Mother succeeds to estate of illegiti- mate: Sec. loSS, j)Ost. 194. Lrgilimaei/ of children horn after dii^i^oUition of marriage. Sec. 104. All children of a woman who has been married, born within ten months after the dissolution of the marriage, are presuincd to be legitimate children of that marriage. [Amendment, approved March 30, 1874; AmendmenU 1873-4, 194; took effect July 1, 1874.] Legitimacy generally: See references in note to sec. 193. Civ. Code— 4 49 §§ 10i>-199 PERSONAL RELATIONS. [Div. I, Paet IH, 195. WJio may dispute legitimacy of child. Sec. 195. The presumption of legitimacy can be disputed only by the hus- band or wife, or the descendant of one or both of them. Illegitimacy, in such case, may be proved like any other fact. Affiliation of bastards discussed in note to Bastards, rights of In generail, discussed Wtatktij'ord V. Weaiher/ord, 56 Ain. Dec. 210. in note to Simmons v. Bull, 56 Ani. Dec. 257. 196. Obligation of parents for support and education of children. Sec. 19G. The parent entitled to the custody of a child must give him sup- port and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability. Action to enforce parental duty: Sec. Illegitimate child.— The mother is entitled 203, iiijhi. to the custody of an illegitimate unmarried Third person supplying necessaries: minor: Sec. 200. As section 196 makes no Sees. 207, 208, infra. provision for the support of an illegitimate Willful failure to support child is a mis- chihl by any one other than the one entitled to demeanor: I'en. Code, sec. 270. its custody, it would seem that the father can- Deserting child is a felony: Pen. Code, not be compelled to support it by reason of this sec. 271. section alone. Supporting poor relatives: See sec. 206, Injiiry to child, action for: See Code Civ. infra. Proc, sec. 376. J197. Custody of legitimate child. Sec. 197. The father of a legitimate unmarried minor child is entitled to its tcustody, services, and earnings; but he cannot transfer such custodv or ser- vices to any other person, except the mother, without her written consent, un- less 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 abandoned his family, the mother is entitled thereto. [Amendment, approved March 30, ;1874; Amendments 1873-4, 194; took effect July 1, 1874.] Relinquishing right to child's earnings: Sec. 211, hifra. Property of child, parent, as such, has no control of: Sec. 202, infra. Guardian, appointment of: See j)os<, sees. 241 et seq. 193. Husband and wife living separate, neither to have superior right to custody of cJiildren. Sec. 198. The husband and father, as such, has no rights superior to those of the wife and mother, in regard to the care, custody, education, and control of the children of the marriage, while such husband and wife live separate and -apart from each other. Custody of child: See the subject dis- Same in divorce causes: See ante, sec. • cussed generally in a note to Slaie v. Smith, 20 138. Am. Dec. 330. . 199. When husband or wife may bring action for exclusive control of children. Sec. 199. Without application for a divorce, the husband or the wife may bring an action for the exclusive control of the children of the marriage; and the court may, during the pendency of such action, or at the final hearing thereof, or afterwards, make such order or decree in regard to the support, care, custody, education, and control of the children of the marriage, as may be just, and in accordance with the natural rights of the parents and the best Interests of the children, and may at any time thereafter amend, varj% or modify such order or decree, as the natural rights and the interests of the parties, in- ■^■cluding the children, may require. Compare with section 214. infra. Awarding custody of child. — Considera- Coutrol of children pendiag divorce pro- tions that should govern the court: Sec. 246, ^ceediugs: See ante, sec. 138. post. 60 Title II, Chap. I.] CHILDREN BY BIRTH. §§ 200-207 230. Custody of an illegitimate child. Sec. 200. The motber of an illegitimate unmarried minor is entitled to its custody, services, and earnings. Mother the heir of lUegitimata ohild: in the note to Simmons v. Bull, 56 Am. Dec. Seo. l.SSN, post. 257. Bastards, rights of in general, discussed Duty to support child: Sec. 196. £01. Allnwavce to parent. Skc. 201. The proper court may direct an allowance to be made to the parent of a child, out of its propex-ty, for its past or future support and education, on Buch conditions as may be proper, whenever such direction is for its benefit. Allowance out of child's property for its support: See the subject treated in note to Myers v. Mi/ers, IG Am. Dec. GGl. 202. Parent cannot control property of child. Sec. 202. The parent, as such, has no control over the property of the child. Sample principle: Sec. 242, j^ost. Guardian of minor's estate : See sec. 241, post, et seq. 203. Remedy for parental abuse. Si:;c. 203. The abuse of parental authority is the subject of judicial cogni- zance in a cinl 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.. Parental duty: See sec. 19C, ante. 204. When parental authority ceases. Sec. 204. The authority of a parent ceases: 1. Upon the appointment, by a court, of a guardian of the person of a child; 2. Ujjon the marriage of a child; or, 3. Upon its attaining majority. . 205. Remedy when parent dies without providing for support of child. Sec. 205. If a parent chargeable with the support of a child dies, leaving it chargeable to the county, and leaving an estate sufficient for its sujjport, the supervisors of the county may claim provision for its support from the parent's estate by civil action, and for this i^urpose may have the same remedies as any creditors against that estate, and against the heirs, devisees, and next of kin of the parent. 206. Reciprocal duties of parents and children in maintaining each other. Sec. 20G. 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 per- son to the extent of their ability. The pi'omise of an adult child to pay for necessaries previously furnished to such parent is binding. Mother supporting children: Sec. 197. Wife supporting husband: Sec. 176. 207. When parent is liable for necessaries supplied to child. Sec. 207. If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent. Parent liable for necessaries furnished Infant liable on contract for necessaries; infant: See Scbouler ou Dom. ilel., sees. 241 See sec. 3G, ante, and Schouler on Dom. Kcl., et seq. sees. 411 et scq. 51 §§ 208-215 PERSONAL RELATIONS. Piv. I. Paet m, 208. When parent not liable/or support furnished child. Sec. 208. A parent is not bound to compensate the other parent, or a rela- tive, for the voluntary support of his child, without an agreement for compen- sation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause. 209. Husband not bound for support of wife's children by former marriage. Sec. 209. A husband is not bound to maintain his wife's children by a for- mer husband; but if he receives them into his family and supports them, it is l^resumed that he does so as a parent, and where such is the case, they are not liable to him for their support, nor he to them for their services. Step-father'3 rights and liabllitdea with to a person standing in loco parentis generally, regard to step-children: See the note to Will- see noto to Weaver v. Bachert, 44 Id. 1G7. iams V. Hutchinson, 53 Am. Dee. 30G; and as 210. Compensation and support of adult child. Sec. 210. 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. 211. Parent may relinquish services and custody of child. Sec. 211. The parent, whether solvent or insolvent, may relinquish to the child the right of conti'olling him and receiving his earnings. Abandonment by the parent is presumptive evidence of such relinquishment. 212. Wages of minors. Sec. 212. The wages of a minor employed in service may be paid to him until the parent or guardian entitled thereto gives the employer notice that he claims such wages. [Amendment, approved March 30, 187^; Amendments 1873- 4, 194; took effect July 1, 1874.] 213. Plight of parent to determine residence of child. Sec. 213. A parent entitled to the custody of a child has a right to change his residence, subject to the power of the proper court to resti'aiu a removal which would prejudice the rights or welfare of the child. Residence, husband's right to change: See mde, sec. 156. 214. Wfe in certain cases may obtain custody of minor children. Sec. 214. When a husband and wife live in a state of separation, without being divorced, any court of competent jurisdiction, upon application of either, if an inhabitant of this state, may inquire into the custody of any unmarried minor child of the maiTiage, and may award the custody of such child to either, for such time and under such regulations as the case may require. The decis- ion of the court must be guided by the rules prescribed in section two hundred and forty-six. Custodyof child without divorce of parents: See a?(/p, sec. 199. Custody of cjild penduig d:vor.:;e proceedings: See sec. 138. 215. (Jhild legitimized Inj marriage of parents. Sec. 215. A child born before wedlock becomes legitimate by the subsequent marriage of its parents. [Xew sect tun, approved March 30, 181 ■i; Amendmenla V6l-d-4, 195; tou/c effect July 1, 1874.J 52 Trnj5 n, Ckat. H.] ADOPTIOIT. S§ 221-22ff CHAPTER H ADOPTION. 221. Child may be aaopted. Sec. 221. Any minor child may be adopted by any adult persoiij in the casea and subject to the rules prescribed in this chapter. 222. Who may adopt. Sec. 222. The person adopting a child must be at least ten years older than the person adopted. [Amendment, approved March 30, 1874; Amendments 1873-4, 195; took effect July 1, 1874. J 223. Consent necesmry. Si.c. 223. A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife; nor can a married woman, not thus separated from her husband, without his consent, provided the husband or wife, not consenting, is capable of giving such consent. [Amendment ^ approved Mardi 30, 1874; Amendments 1873-4, 195; took effect July 1, 1874.] 224. Consent of child's parents. Sec. 224. A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultei-y or of cruelty, and for either cause divorced, or adjudged to be an habitual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty or neglect. 225. Consent of child. Sec. 225. The consent of a child, if over the age of twelve years, is necessary to its adoption. 226. Proceedings on adoption. Sec. 22G. The person adopting a child, and the child adopted, and the other persons, if within or residents of this state, whose consent is necessary, must appear before the judge of the superior court of the county where the person adopting resides, and the necessary consent must thereupon be signed, and an agreement be executed by the jjerson adopting, to the e£fect 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 necessaiy are not within or are not residents of this state, then their written consent, duly proved or acknowledged accord- ing to sections eleven hundred and eighty-two and eleven hundred and eighty- three of this code, shall be filed in said superior court at the time of the appli- cation for adoption. [Amendment, approved April G, 1880; Amendments 1880, 4 {Hun. ed. 122); took effect immediately.] 2.21. Judge's order. Sec. 227. The judge must examine all persons appearing before him pursu- ant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth bo regarded and treated in all respects as the child of the person adopting. 228. Effect of adoption — Eights and duties. Sec. 228. A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal 53 S§ 229-238 PERSONAL RELATIONS. Ptv. I, Paut in. relation of parent and child, and have all the rights and be subject to all the duties of that relation. [Amend mejit, approved March 30, 1874; AmendmerU* 1873-4, 195; loofc ejfecl Juhj 1, 1874.] Effect of adoption: See under •'Children" in note to sec 193. 229. Eff'ect on former relations of child. Seo. 229. The parents of an adopted child are, from the time of the adox)- tion, relieved of all parental duties towards, and all responsibility for, the child BO adopted, and have no right over it. 230. Adoption of illegitimate child. Sec. 230. 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 legiti- mate from the time of its birth. The foregoing provisions of this chapter di) not apply to such an adoption. Legitimating child by aclinovyledgment. Coinijare the abnve section with section 1387, which provides for legitimating a child by making an acknowledgment in writing that such child is the declarant's. The writing must be in itself sufficient; must state that the child is illegitimate, and that the father acknowl- edges his paternity: Piita v. Peck, 31 Cal. 359. Section 230 applies only to the case of a minor child: See Estate of Pico, 52 Cal. 84; S. C, 5() Id. 413. Section 1387 reaches the cases of adults: E.flate of Pico, supra. Section 230 is not retroactis'e: Id. In their draft of this code the commissioners say: " This provision, like the rest, is new, but is so manifestly just, and the present state of the law is so unmerciful to innocent chihlren, that it is presumed that no objection will be made to the change. The seducer cau make reparation to the mother of his child, tliough she is more or less culpable, but can at present make absolutely none to the child, though per- fectly innocent. By the law of France, and of almost every European nation, and in thia country by the laws of Maine, Vermont, Mas- sachusetts, Connecticut, Ohio, Illinois, Indiana, Maryland, Virginia. Georgia, Alabama, Missis- sippi, Louisiana, Kentucky, and Missouri, a child is legitimized by the marriage of its pa- rents after its birth. Privacy is an indispensa- ble element of such an adoption. To compel the father to appear before a judge, or in any way to place the matter upon record, would brand the child with the very stigma which a repentant father would desire to save it." "Our statute of 1870 was simply adopting thia chapter of the New York civil code iu ad* vance." TITLE III. GUARDIAN AND WAED. "Under this heaa are placed not only the pro- and care of persons of unsound mind. Tha visions of law relatiiig to the guardianship of 'committee' of a lunatic is here termed a minors, but also those relating to the custody 'guardian:'" Commissioners' note. 23G. Guardian, what. Sec. 230. A guardian is a person appointed to take care of the person or property of another. 237. Ward, what. Sec. 237. The person over whom or over whose property a guardian is appointed is called his ward. 233. Kinds of guardians. Sec 233. Guardians are either: 1. General; or, 2. Special. "CDmmoa-law guardians. — Bouvier, tit. Guardian, dedues guar liau to bj one who legally has the care and inaui'jemTUt of t'le person or the estate, or b ith, of a ohdd daring Its minority: Reeve's Doin. IIjI. 311. Such a person is known in the civil law by the nam« of c'.irator: 1 Sec. El da Droit Civ. Ri)m. 241. There wjro four kinds of guardians at common law, calle 1 re3;')ectively guardians by nature, guardians for nurture, guardians in socage, and 54 Title III.l GUARDIAN AND WARD. §§ 23£)-243 guardians in chivalry. The guardians by na- twenty-one years if a male, and sixteen if a ture were tlie father, and in some cases the female, and related to both person and estate, mother, of the children; guardians for nurture witliout any obligations to account for tho •were also the father or mother, and continued profits of tlie latter: 1 Bla. Com., c. 17; 2 Id. until the child attained tiie age of fourteen c. 5. These guardians were a])poiiited or desig- years; guardianship in socage took place only nated by tlie coinmon law itself, except that when the infant was entitled to an estate in the chancellor, by virture of his autJiority as lands by descent, and the next of kin, to whom representative of the king, who was tlie parem the estate could not possibly descend, became /ja^/v'ct, and as such the guardian of all the infanta the guardian in socage. Guardianship in soc- in the kingdom, was allowed to appoint guar- age, like that for nui ture, continued only until dians to such infants as were without guardianii the infant was fourteen years of age, at which at common law: Lord v. llouijh, 37 Cal. GGO:"* age he was pre.';umed to have attained sufficient Cotnmissioners' note. discretion and judgment to choose a guardian Testamentary gucirdians: See sec. 241, and for himself, and therefore was allowed to do so, note. subject, however, to the approval of the court Guardian de son tort. — One wrongfully of chancery, (hiardianship in socage included intermeddling with tlie property of an infant ia the custody .and care of both the person and sometimes in equity held a guardian de «o» estate of tlie infant. Guardianship in chivalry tori for the jiurpose of an accounting, but he was a feature of the feudal system, and took acquires none of the rights of a guardian: place when lands came to an infant by descent Aldridi v. II t/i/.s, 55 Cal. 81. •which were held by knight service. It con- Guardians ad litem: See Code Civ. Proc, tinued until the infant attained the age of sees. 37'-, 373. 239. General guardian, what. Sec. 239. A general guardian is a guardian of the person or of all the proj)- erty of the ward "within this state, or of both. 240. Special guardian, what. Sec. 240. Ever^^ other is a special guardian. 2'41. Appointment of guardian by will or by deed. Sec. 241. A guardian of the person or estate, or of both, of a child born, or likely to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing: 1. If the child be legitimate, by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent; 2. If the child be illegitimate, by the mother. [Amendment, approved March 30, 1874; Amendmenls 1873-4, 195; took effect July 1, 1874.] Testamentary guardian. — An interesting law of testamentary guardianship will bo eketcli of the orii^iii of this species of guardian found. is given by Judge Sanderson in />oros<. 253. liemoval of guardian. Sec. 253. A guardian may be removed 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 performance of his duties: C. For removal from the state; 7. In the case of a guardian of the property, for insolvency; or, 8. When it is no longer proper that the ward should be under guardianship. [Amendment, approved April G, 1880; Amendments 1880, 5 {Dan. ed. 123); took effet t im m ediutehj. ] Removal of guardian. — The power of re- provide for tlieir support and education, is not moving a gnaidi n is given both by this section a suitable person, and should be renioved: lie and by scclion ISOl of the Code of Civil IVo- tiw[ft, 47 Cal. GJ9. cedure. Tliis jowcr may be exercised at cliani- After removing a guardian tlie court may bers: Warder v. Elkins, SS Cal. 442. settle his accounts: Gntff v. Me-isner, 52 Cal. A fatluT who, as guardian of his minor chil- G^iG. dren, is in receipt of an annual income of two Presumptions are in favor of the regularity thousand dol'ai'S from their propeily, and who of tiie probate court iu reinoviiig a guardian: refuses, through a period of several years, to Brodribb v. Tibbils, G3 Cal. SO. 2o4. Guardian appointed bij parent, hoio superseded. Sec 254. The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by section two hundred and fifty-three; 2. By the solemnized mamage of the ward; or, 3. By the ward's attaining majority. Mauriaso of wsird terminates guardianship: Code Civ. Proc., sec. 1802. 255. Guardian appointed by court, li>no suspended. Sec 255. The power of a guardian appointed by a court is suspended onlyi 1. By order of the court; or, 2. If the appointment was made solely because of the ward's minority,, by his attaining uiajurity; or, 57 <§§ 256-264 PERSONAL RELATIONS. [Biv. I, Part m, 3. The guardianship over the person of the ward, by the marriaj'e of the •ward. [Anicndm'cnt, approved March 30, 1874; Amendments 1873-4, 197; look effect Jahj 1, 1874.) Marriage of ward termiuates guardianship: Code Civ. Proc, sec. 1802. 256. Belease by ward. Sec. 256. After a ward Has come to his majority, he may settle accounts -with Lis guardian, and give him a release, which is valid if obtained fairly aud Avitliout undue influence. Release by -weird. — The niles concerning that the ward had full opiwrtunity to examine dealings between f^uardian and ward are very the accounts, either by himself, if ho was able «tringeut. So intimate is their relation that to understand them, or by the aid of some coni- ruany authorities pronounce voidable all trans- potent adviser or attorney: Id., in note; Fixh v. actions between them that are for the guardian'3 Miller, 1 Hoffm. Ch. 267; In re Van J tome, 7 benefit: See 2 Pomeroy's Eq. Jur., sec. 961. Paige, 46; Stanley's Appeal, B> Ta. St. 4.'il; Say Especially is this so in the case of settlements v. Barnes, 4 Serg. & R. 112; Waller v. Armi- by the guardian with his ward. The guardian siead, 2 Leigh, 11; Garvin v. Williams, 44 Mo. must prove not only an absence of undue influ- 465. «Qce, and perfect fairness and good faith, but 257. Gaardian's discharge. Sec. 257. A guardian appointed by a court is not entitled to his discharge Tintil one year after the ward's majority. Resignation of guardian: See Code Civ. Proc, sec. 1801. 258. Insane persons. Sec. 258. A person of unsound mind may be placed in an asylum for such persons, upon the order of the superior court of the county in which he resides, as follows: 1. The court must be satisfied, upon examination in oi)en court, and in the presence of such persons, from the testimony of two reputable physicians, that such person is of unsound mind, and unfit to be at large; 2. After the order is granted, the person alleged to be of unsound mind, his or her husband or wife, or relative to the third degree, or any citizen, may demand an investigation before a jury, which must be conducted in all respects as under an inquisition of lunacy. [Amendment, approved April G, 1880; Amend' merits 1880, 5 [Ban. ed. 124); took effect immediately.] Guardianship of lunatic : See Code Civ. Imprisonment of insane persons : See Proc, sec. 1703. Cooley on Torts, sees. 176 et seq. TITLE IV. MASTER AND SERVANT. At the conclusion of this title the commis- last two sections, which provided for special sioners appended a note, which read as fol- remedies." lows: "This title [Master and Servant] is a Employer and enq>loyee: See, generally^ literal copy of the statutes of 1858, save the sees. 1965 et sec^. 264. Mbwrs may apprentice tliemselves. Sec. 2G4. Every minor, with the consent of the persons or ofiBcers herein- after mentioned, may, of his own free-will, bind himself, in writing, to serve as clerk, apprentice, or servant, in any profession, trade, or employment, during Lis minority; and such binding shall be as valid and effectual as if such minor was of full age at the time of making the engagement. Contracts of apprenticeship must be exe- ive rights and duties of master and apprentice cuted ill accorilauce with tlie requisites of the wi!l be found inSchoulerou Dom. llel., 3ded., fitatute: I'helpx v. PilUbuiyh etc. li. R. Co., 99 sec. 437. Pa. St. IDS. A very comprehensive statement Master and servant generally: See post, of some of the priuciples aii'ecting the respect- sec. 20J9. 58 Title IV.] MASTER AND SERVANT. ^ 26&-270 265. Covsenf of pnrent-i, etc., requviile. Sec. 2G5. Such consent shall be given: 1. By the father of the minor. If he be dead, or be not of legal capacity to give his consent, or if he shall have abandoned or neglected to provide for his family, and such fact be certified by a justice of the peace of the township or county, or sworn to by a credible witness, and such certificate or afiidavit be indoi'sed on the indenture; then, 2. By the mother. If the mother be dead, or be not of legal capacity to give such consent or refusal; then, 3. By the guardian of such infant. If such infant have no parent living, or none in a legal capacity to give consent, and there be no guardian; then, 4. By the supervisors of the county, or any two justices of the peace, or the judge of the superior court of the county; 5. If such minor be an oi'phan, under the care and control of any orphan asylum in this state, then by the board of managers thereof. [Amendment, approved April G, 1880; Amendments 1880, 5 {Ban. ed. 124); took effect immediately.] An Act to authorize Che managers of orphan asylums to give their consent to the adoption of certain children uudfr their care. [Approved April 1. 1878; 1877-S. 963.) Atithoriziiig mawMjers to consent to adoption of children. Section I. The managers of the several orpljan asylums in this state are hereby authorized and empowered to consent to the ado^jtion of any orplian child, or child abandoned by its parents, in tlie aanie manner that parents are Ity law authorized to consent to tlie adoption of their cliildren; jirovided, however, that such orphan cliild, or child abandoned by iis parents, shall have hcen in the charge and under the management of the managers of such orplian asylum for the j)t'riod of one year prior to such adoption, and during that period supported wholly at tlie e. jieuse of said asylum. Sec. 2. This act sliall take effect from the date of its passage. 266. Writ/en consent. Sec. 2G6. Such consent shall be signified in writing by the person entitled to give the same, by certificate at the end of, or indorsed upon, the indentures. 267. Executors may bind. Sec. 2G7. The executors of any last will of a parent, who shall be directed in sucli will to bring up his or her child to some trade or calling, may bind such child to sei-vice as a clerk or apprentice, in like manner as the father might have done if living. If there is a surviving mother, her consent also is necessary. 268. Supervisors may hind out. Sec. 2G8. The supervisors of the county may bind out minors who are or shall become chargeable to such county, to be clerks, apprentices, or servants, which binding shall be as efi'ectual as if such minors hud bound themselves with the <'onseut of their father. 269. Town officers. Sec. 2G9. In every town or city the presiding officer of the first council or legislative board thereof, if there be more than one, or any public officer or officers appointed to provide for the poor, may in like manner bind out any child who, or whose parents are, chargeable to any such town or city. 270. Age of apprentice to he inserted in indentures. Sec 270. The age of eveiy infant so bound shall be inserted in the inden- tures, and shall be taken to be the true age; and whenever public officers are authorized to execute any indentures, or their consent is required to the 59 '§§ 'Ti 1-276 PERSONAL RELATIONS. [Div. I, Part m, validity of tlie same, it shall be their duty to inform themselves fully of the infant's age. 271. Indeittures, conditions in. Sec. 271. Every sura of money paid or agreed for, with or in relation to the^ binding out of any clerk, apprentice, or servant, shall be inserted in the inden- tures. 272. Same. Sec. 9,12. The indenture shall also contain an agreement, on the part of the person to whom such child shall be bound, that he will cause such child to be instructed to read and write, and to be taught the general rules of arithmetic, or, in lieu thereof, that he will send such child to school three months of each year of the period of indenture. 273. Deposit of indenture. Sec. 273. The counterpart of any indenture executed by any county, or city, •or town officers must be by them deposited in the office of the county clerk. [Ame)idinerit, approved April 6, 1880; Amendments 1880, 6 {Ban. ed. 121); took ■effect immediately.] 274. Alien minors. Sec 274. Any minor capable of becoming a citizen of this state, coming ■from any other country, state, or territory, may bind himself to service until his majorit}', or for any shorter terra. Such contract, if made for the purpose of raising money to pay his passage, or for the payment of such passage, may be for the term of one year, although such term may extend beyond the time when fiuch person will be of full age, but it shall in no case be for a longer term. 275. Contract under preceding section to be acknowledged. Sec 275. No contract made under the preceding section shall bind the ser- vant, unless duly acknowledged by the minor, before some public magistrate or other officer authorized to administer oaths, nor unless a certificate, showing that the same was made freely, on private examination, be indorsed upon the contract. 278. Causes for annulling indentures. Sec. 27G. Such indentures of apprenticeship may be annulled for: 1. Fraud in the contract of indenture; 2. When such contract is not made or executed in accordance with the pro- visions of this title; 3. For willful non-fulfillment, by such master, of the provisions of such indenture; 4. Cruelty or maltreatment of such apprentice by the master. In such case, the apprentice may recover for his services. An Act relative to apprenticen and masters. [Approved April 3, 1870; 1875-C, 842.] Minors may he apprenticed. Skction 1. A 1 minors, at the age of fourteen years, may be bound by covenant or inden- ture, ill conformity witli t'.ie stipulations herein speciaed, to any mecliaiiical tra^le or art, or the occupation of farming, as apprentices; males to tke age of tweuty-oue years, and females to the age of eighteen. Minors mail hr apprenticed, by whom. Sec. "2. Minors, at or above tiie age of fourteen years, may be bound by the father, or in case of his (leatli, incompetency, or where he shall have willfully abandoned his family for one year, without mikiuf^ suitable provision for their support, or lias become an lial)itual n$ of via^ters. Se(;. 9. It i^hall be unlawful for any master to remove an apprentice out of this state; and in all indentures liy the said court for binding out an orphan, or homeless minor, as an apprentice, there shall bo inserted, among other coven. ;nts, a clause to the following effect: That the master to whom such m nor shall be bound shall cause the same to be taught to read ami writo. and the grouu I rules of arithmetic, and the ratio and proporiion, and shall give him rccpiisite instruc- tion in the diireicnt branches of liis trade or calling, and at the expiration of his term of service ehall give him two full new suits of clothes aullars, gold. [Amendment, approved Aprd ^d, i^SXi', AmendnKvti 18S0, 2'.) (Ban. ed. 178); tuok effect inimnllately.'\ Money con-^itlera/iou-'^ and clothes the property of appreut'ice. Sec. 10. All considerations of money <>r clothes paid or allowed by the master, in conformity wit'i tlie foregoing section, are the solo properly of the apprentice, and to whom the mister ia accountable l<>r the same, and he shall pay or donate into the hand of the appreutiue alone. Treatment of n/iprentice-i. Sec. 1 1. Parents and guardians and the said court shall, from time to time, inqnire into the treatment of tlie children bound by them, respectively, or with their approbation; and the judges of the said courts shall i>e respousihlo for the charge of indentured :ipprentices bound by the approljation of their predecessors in oUice, ami defend them from all cruelty, neglect, In-cach of contract, or ndsconduct on the part of tlu-ir masters. [Amendment, a^jprootd April 9, 1880; Amendments 1880, 29 (Ban. ed. 178); took effect immediately.] Age to hi' staled. , Sec. 12. The age of every apprentice shall be inserted in the indenture; and all indentures entered into otherwise than as is herein provided shall be, as to all apprentices under age, utterly void. Court to hear complaints. Sec. 1.3. The superior court shall hear the complaints of apprentices, who reside within the county, against their masters, alleging undeserved or immoderate correction, insullicient allow- ance of food, rai nent, or lodging, want of instruction in the different branches of their tr.ule or callmg, or that they are in danger of being removed out of the state, or any violation of th© CI 8 276 PERSONAL RELATIONS. [Div. I, Part III, TiTte IV. indenture of apprenticeship; and the court may hear and determine such cases, and tnake such order therein as will relieve tiie party in the future. [Amendment, approved April 9, 18S0; Amendments ISSO, 29 (Ban. ed. 170); took eject immediately.] Court mnij dlnrhnrf/e apprentice. _ , t , Sec. 14. Tlie superior court shall have power, where circumstances require it, to discharga an api)rentice from his apprenticeship, and in case any money, or other thing, has heen paid or contracto(.l to he paid hy either party in relation to such apprenticeship, the court sliail make such order concerning the same as shall seem just and reasonahle. If the apprentice so dis- charged shall have heen originally hound hy the superior court, it shall he the duty of the court, if found necessary, again to hind such apprentice, if underage. [Ameudmeut, approotd AprU 9, 1880; Amendiiients 1880, 29 (Ban. ed. 179); took effect immediately.] Liah'dity of wtxf&r. Sue. 15. Every master shall he liahle to an action on the indenture for the breach of any covenant on his part therein contained; and all VIII. Water and Canal Corporations 548 IX. Homestead Corporations 557 X. Savings and Loan Corporations 571 XI. Mining Corporations , 584 XII. Religious, Social, and Benevolent Corporations 593 XIII. Cemetery Corporations-. 608 XIV. Agricultural-fair Corporations 620 XV. Gas Corporations 628 XVI. Land and Building Corporations ... 631) TITLE I. GENERAL PROVISIONS APPLICABLE TO ALL CORPORATIONS. Chapter I. Formation of Corporations 283 II. Corporate Stock 822 HI. Corporate Powers 354 IV. Extension and Dissolution of Corporations 399 CHAPTER L FORMATION OF CORPORATIONS. Abticle I. Corporations Definkd and how Organized , 283 II. By-laws, Directors, Elections, and Meetings » 301 ARTICLE I. corporations defined, and now organized. 283. Corporation defined. Sec. 283. A corporation is a creature of tbe law, having certain powers and duties of a natural person. Beiu^ created by the law, it may continue for any lenp^th of time which the law prescribes. An Act to define co-operative business corjwrnthmji, avd to provide for the organization and gov- erniiieiit thrrrof. [Approved AprU 1, 1878; 1877-8,883.] Co-operntivp business corporation defined Section 1. A cooperative business curpor.-ition ia a corporation formerl for the pnrpose of comliKMiii;^ any lawful business and of tlivi lin;^ a iiortion of its profits among persons other than its stockholiU'rs. Cooperative business corjn nations shall be fornietl untlcr ami governed by Division First, fart IV., Title I., of tiic Civil Code of this state, and when so formed, may, in their by-laws, iu addition to the matters enumerated in section three hundred and three of said code, provide: 1. I'or tlie number of votes to which each stocklioldcr shall be entitled; and, 2. The amount of profits which shall be dixikd among persons otlier than the stockholders, and tlie maniur in which and the ]>ersous amon_' whom such division shall be made. Sec. 2. Tliis act shall be in force from and after its passage. 63 §1284 CORrOHATlONS. [Div. I, Part IV, A corporation is dsfined by Chief Justice to manage its own affairs, ami to liold prop- Marsliall, in tlie JJartmouth CoUegp. CVwc, 4 erty without the perplexing intricacies, tiio Wheat. 030, to he "an artificial being, iiivisi- hazardous autl endless necessity of jK-rpetual ble, intan,.,'iblc, and existing only in contem- conveyances, fur the purpose of tiansmittiiig it plation of law. lieing the mere creature of from iiand to hand. It is chiefly for tiio pur- tlie law, it jiosseswis only those properties pose of clothing bodies of men in succession whicli the ciiarter of its creation confers with these ([ualities and capacities that corpo- npon it, cither expressly or incidental to its ratiorae were invented and are in use." For" very existence. Tiiese are such as are sup- otherdefinitionsof a corporation, see Bon v. j^w posed best calculated to effect the object for Diet., tit. Corporation; Abbot, Id. ; Charter v. which it was created. Among the most im- .S'. /'. /Sw/a?- f 'o., 19 Cal. 219; Angell & Anieson portant are immortality, and, if the expression Cori>., sees. 1-11; 2 Kent's Com. 21)7, 268. may be allowed, individuality— properties by Powers of corporatlona: See yost, sec3. which a iierpetual succession of many persons 354 et seq. are consideied us tlie same, and may act as a Esdstence of corporations limited to fifty single individual. They enable a corporation years: Sees. 290, 401, pout. 284. Corporations^, public and private cliKtinguishefl. Sec. 2S4. Coi-porations are either public or private. Public corporations aref formed or organized for the government of a portion of the state; all other cor- porations are private. [Amendment, approved Uarch 30, 1874; Amendments 1873-4, 197; took effect July 1, 1874.]. The original section, instead' of "all otlier people's agent, the legislature, to assist in carry- corporations are private," had the words ing on the administration of piiMic afTairS, "private corporations are formed for the pur- and witli the exception of cert;iin constitu- pose of ndigion, benevolence, education, art, Hterature. or prolit." Classes of corporations, — The general classes into which corporations are usually divided by the text-writers, and in the minds of the courts, are corporations sole, and cor- porations aggregate. The latter resolve them- selves into the divisions specified in tlie above section, public and private. By the common law, corporations were again distinguislied as ecclesiastical or lay. In the common-law sense, ecclesiastical corporations do not exist among us; tliey ate known as religious corporations, and have no temporal jiower to enforce their de- cisions and ordinances. Lay corporations are tioiial limitations, may be created, mollified, or destroyed by the legislature at ple.TSure: Angell & Ames on Corp., sec. 31; 1 Ddlin on Mnii, Corp., sec. 54. Weflrecognized e.cam- ples of public corporations are town-^, cities, counties, parishes, existing for public iiuriiusesj Boiiaparti' v. Camden etc. 11. It. 6'\, 1 Baldw. 223. The fact that the sovereign becomes a member or stockholder of a i)rivate corpora- tion dbes not alter the character, and make it a public corporation; on the coiitrai'y, to tho extent of its interest, the sovereign becomes a private individual: Angell- & Ames on Corp. 32. The case of Ten Eycky. Canal C"., 37 Am. Dec. 233, is often referred to as containing a either eleemosynary or civil, and the former very careful review of the differences between embrace all corporations instituted upon ])rin- ciples of charity; civil corporations include those formed for other than charitable or educational purposes, and extend to the vast variet}' of umUrtakings in which men may en- gage: See Angell & Ames on Corp., c. 1. Cor- porations sole are recognized by this code: Sec, 602; and wiiat are sometimes known as quasi a public and private corporation. And in the course of a well-considered op'nion delivered on behalf of the court in Ii'erjetitf of Un'irersity V. Wdliaim, 9 Gill & X 365, it is concisely said: "A public corporation is one that is created for political purposes, with po- litical powers, to be exercised for purposes connected with the public good in the admin- pnljlic corporations liave been recognized in istration of civil government: an instrument of this state as ]iublie corporations. These qnaxi the government, subject to the control of tho public corpoiations have in view some pul)lic legislature ami its members, officers of the enterpri.se, in which tlie interests of the local government, for the administration or dis- or general public are involved: Mhierx^ Ditch . charge of public duties, as in the cases of Co. V. Zi'l(erl,aeiirer, 4 Id. 40C; it is a public corporation; and so of a hospital Kenren v, JohnMon, ^ Denio, 183; Coiniiy Su- per viiom V. liartirell, 8 Johns. 424; Jaiinen v. Ostraiuler, I Cow, f:70; school directors: In- h'tbitavts of School District v. Wood, 13 Mass, 193; Grant v. Fanrher, 5 Cow. 309; Lexiwjion V. McQuillan, Dana, 519i District v. 'Mc- Cloon, 4 Wis. 79; Clarke v. School District, 3 Iv. I, 199: Norton v. Garrison, 24 Barb, 17(); State v. II nlin, 2 Or. 300; road commissioners: Duntz V. Dnntz, 44 Barb. 459. Under the di- vision made by tlio code, tiieso corporations would be deemed public: See infra. Public corporations are formed or organ- ized for the government tif a portion of the state. created and endowed by a governrnent for gen- eral purposes of charity." The dtfiiiitii>n of a pui)lic corjioration given in tlie aliove section was considered in Dean v. Dar's. 51 Cal. 406, 410, witli reference to a levee di>tri<'t formed under an act of the legislature for rcc'am'tion jiurposes. The court say, per ,h\ Ige Cn-ckett: "It is true, perhaps, that it was not formed or organized ' for the government of a portion of the state,' in the broadest sense of the term. But it nevertiieless exercises cert.iin govern- mental functions within the district. * * • To constitute a public corjioration, it is not essential that it shall exercise ad tlie functions Such corporations are created bv the of goverumeut within the prescribed district." 64 TiTLB I, Chap. I.] FORMATION OF CORPORATIONS, §§ 28o, 28«< A reclamation district ia declared to be a pub- 120; Ilolce v. Perdue, 62 Cal. 545 — the case of- lie corporation in People v. Rec. Dist. No. 108, Levee District No. 5. 53 Id. 546; People v. Williams, 7 Pac. C. L. J. 285. Private corporations, how formed. Sec. 285. Private corporations may be formed by the voluntary associatioa- of any five or more persons, in the manner prescribed in this article. A major- ity of such persons must be residents of this state. [Amendment, approved March 30, 1874; Amendments 1873-4, 197; took pffect July 1, 1874]. The original section, after "five or more tites in matters of detail is not essential, and persons," had the words "for the purposes the proceedings will not be held invalid for and." It had an additional clause at the end slight defects or omissions: S. V. Wabr Work* as follows: v. &in Franchro, C2 Cal. 434; Ex parte S. F. "Married women may become corporators, ]V. IT., 17 Id. i."?2; People v. Stockton /?. R, officers, and members of religious, benevolent, Co., 4o Id. 300; Itoman Cathulic Orjihaa Asij' art, literary, or educational corporations." him v. Ahrams,40 Id. 4o5; L'asifrn Plank lload' The amendment was made at the recom- Co. v. rec?;.'//*!''??, 14 N. Y. f>4G; Ealcr'njht v. Lo' mendation of the code examiners, who say: (jav.^port R. R. Co., 13 Ind. 404; Wcdlworth v. "The principal change in the section is substi- Brackett, 9S Mass. 98; Rogers v. Danvvrs etc. tuting the word "residents" for "citizens," Societij, 19 Vt. 167. But a substantial coniplt- and omitting the clciuse in the original section ance with tlie forms of tlie act by the persona axithorizing married women to become corpora- seeking to derive the benefits of an incorpora- tors of certain corporations. There seems to tion must be observed, and the omission of es- be no reason why bunafde residents should be sentiiil steps will be fatal: Mokdumue Hill Mfy. precluded from being corporators in advance of Co. y. Woodlmrij, 14 Cal. 424; Harris v. Ale- becoming citizens, and there is no occasion for Grrtjor, 29 Id. 124; People v. Setfrid'jp, r>2 Id. the clause about married women. They can 331; BiH facts tlierein stated. Civ. Code — 5 65 S 286 CORPORATIONS. [Div. I, Pabt IV, Corporation — RirjUts and powers. Skc. 4. When the certilicato provided for in section two of this act shall have heen filed aa therein provided, the persons wlio shall have signed and acknowledged the same, and such per- eons as ishall thereafter become their associates or successors, shall be a body politic and corpo- -rate, and by their corporate name have succession for the period limited, and power: i. 'J'o sue and be sued in any court; 2. To maico and use a common seal, and to alter the same at pleasure; 3. To lease, purchase, hold, sell, mortgage, convey in trust, convey, release from trust or mort- -^age, such real and personal estate as hereinafter provided in this act; 4. To elect or appoint such officers, ageuts, and servants as the business of the corporation Ajfihall require; 5. To make by-laws, not inconsistent with the laws of this state, providing for the organlza- ' tion Of the corporation and the management of its affairs. .' Stork and certificates. Skc. 5. Corporations formed under this act may have a capital stock, and may issue certlS- -cates to represent shares of such capital stock; proindnl, that the certificate directed in the . Becond section of this act to be executed and filed shall contain a statement of the amount of , Buch capital stock and the number of shares into which it is divided; and provided further, '■ that the riglits and privileges to be accoi-ded to stockholders, as distinct from those to be . accorded to members at large of the corporation, and the obligations to l)e imposed upon stock- holders ill the same relation, shall be fixed and established in the by-laws of each of such cor- , poratious. Trusfeeti, etc. Sec. 6. Corporations formed under this act may confer upon a board of trustees or directors, ' or upon a body to be styled the executive committee of the corporation, the right to exercise - all or any portion of the corporate powers of the corporation; provided, that the certificate directed by the second section of this 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 committee of the corporation, siiall state the fact, and also whether the right is limited or otherwise; and in such corporations the said certificate shall also T-etate the number of such trustees or directors, or committee, and the names of those who shall have been selecteil to maaage the affairs of the corporations for the first six months. . Jieal and personal 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 withiu this state necessary for the uses and purposes of such corporation, and the 'Bame to sell, lease, deed in trust, alien, and dispose of at their pleasure. All real estate owned by the corporation shall be held in the name of the same, and all conveyances made by such -corporation shall be signed by the president and secretary, and attested by the corporate seal; j)rorii/eil, that no corporation formed under this act shall engage in any mercantile, commercial, ..or mechanical business. [Amcndmenl, approved March 10, 1S85; Statutes and Amendments 1885, 76; took effect from passage; repealed covflictinij acts.^ Jiijdaws. Sec. S. The by-laws of all corporations formed under the provisions of this act without capi- -tal stock shall prescribe 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 .«aid corporation. ■ JJcetiwjs, Sec. 9. Corporations formed under the provisions of this act shall determine by their by-laws the manner of calling and conducting tiieir meetings, the number of meniliers that shall consti- i'tute a quorum, the manner of levying and collecting assessments, the officers of the same, and ■^the manner of their election or ap[)ointment, and their tenure of ofiice; and may prescribe ■suitable penalties for the violation of their by-laws, not exceeding in any case one hundred dol- ■lars for any one offense. J*oioer to lev// assessments. Sec. 10. Corporations formed under the provisions of this act having no board of trustees, -or directors, or executive committee, shall iiave power to levy and collect from the members thereof, for the purpose of paying the proper and legal expenses of sucli corporation, assess- finents in the manner which may be prescribed by the by-laws of such corporation, and not other- wise. Existhifj corporations may take benefit of this act. Sec. 11. Any existing corporation, association, or institution formed for either of the par- poses contemplated by this act, may, by a vote of a majority of the mendjers voting at a meet- ing called specially for the purpose, become entitled to the benefit of this act on filing the cer- tificate required by this act; provided, a notice of the meeting and its object shall bo jiublished in a paper of general circulation in the county in which the principal place of business of such corporation, association, or institution is located, for at least ten days previous to the day on which such meeting is to be held; and provided further, that the certificate herein provided to be filed shall be signed and acknowledged by at least five of the members of such corporation, association, or institution, and contain a list of the members who desire to become members of the corporation. And upon the filing of such certificate as provided by this act, the persona signing and acknowledging the same, and those named therein, and such persona as shall there- 66 Title I, Chap. I.] FORMATION OF CORPORATIONS. § 287 after hccoine their associates or successors, shall be a body politic and corporate, with all the powers aiiroriiixli/-iiix, here/o/ure made or labn, and to (eijalize. nil cerlijicatea heretofore made, eijned, and ucknouiedjed, and fled under sec/ion tiro of said act. [Approved March 10, 1885; 1885, 55. J Section I, All acknowledgments heretofore made or taken to the certificate in writing requiiL-d l)y section two of an act entitled *'Au act to provide for the formation of chambers of commerce, l)oards of tracks mechanic institutes, and other kindred protective associations," approved March thirty-lirst, eighteen hundred and sixty-six, wliether proven by a witness or otherwise, and all certificates in writing heretofore made, signed, and acknowledged, and filed under section two of said act, though said certificates and acknowledgments be defective or irregular, are hereby legalized and made valid. Sec. 2. This act shall take effect and be in force from and after its passage^ An Act to facilitate the fjiving of bonds required by law. [Approved March 12, 1835; 1885, 114.] Incorporations for giving bonds. Skcmo.n 1. Whenever any person who now or hereafter may be required or permitted by law to make, execute, and give a bond or undertaking, with one or more sureties, conditioned for tlie faithful performance of any duty, or for the doing or not doing of anything in saiil bond or undertaking specified, any head of department, board, court, judge, officer, or other person who is now or shall hereafter be required to approve the sufficiency of any such l)ond or undertaking, or the sui'eties thereon, may accept as solo and sutlicient surety on such bond or undertaking, any corporation incorporated under the laws of any state of the United States for the [lurposa of niiiking or guaranteeing bonds and undertakings required by law, and which shall have com- plied with all the requirements of the laws of this state regulating the admission of such coijio- ration to transact such business in this state; and all such corporations are hereljy vested with full [lower and authority to make and guarantee such bonds and undertakings, and shall be sub- ject to all the liabilities and entitled to all the rights of natural persons sureties. Whe7i corporation not arcpted. Sec. 2. It is further [)rovided that the guaranty of any such company shall not be accepted by heads of departments or others, as |)rovided in section one of this act, whenever its liabilities ehall exceed its assets, as ascertained in the manner provided iu section three of this act. Duly of intiurance comvi'msioner. Sec. '^. Whenever tlie liabilities of any such company shall exceed its assets, the insurance commisnioner shall require the deficiency to lie [jaid up within sixty days, and if it is not so paid ui>, then he sliall issue a certificate showing the extent of such deliciency, and he shall [lubli.sli the same once a week for three weeks in a daily San Francisco paper, and thenceforth, and until Kueh deliciency is paid up, such compaii)' shall nf>t do lousiness under the provisions of tiiis act. And in estimating the condition of any sucii company, under the provisions of this act, the commissioner shall allow as assets only sucli as are authorized under existing laws at the time, and shall cliarge as liabilities, in addition to eight}' |)er cent of the capital stock, all outstanding indebtedness of the conn)any, and a [iremium reserve equal to fifty per centum of the [ircmiums charged by said company on all risks then in force. Nothing herein contained shall a})ply to bonds given in criminal cases. Skc. 4. This act shall take effect immediately. 287. Continuance of existence under provisions of code. Sec. 287. Anj' corporation existing on the first day of January, one thousand eight hundred and seventy-three, formed under the laws of this state, and still existing, which has not already elected to continue its existence, under the pro- Tisions of this code applicable thereto, maj', at any time thereafter, make such election by the unanimous vote of all of its directors, or such election may bo made at any annual meeting of the stockholders or members, or at any meeting called by the directors expressly for considering the subject, if voted by stock- holders representing a majority of the capital stock, or by a majority of the 67 §§288-290 CORrORATIONS. Piv. I, Part IV, members, or may be made by the diroctors upon tlie written consent of that number of such stockholders or members. A certificate of the action of the directors, signed by them and their secretary, when the election is njade by their unanimous vote, or upon the written consent of the stockholders or mem- bers, 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 chair- man and secretary of tlio meeting, and a majority of the directors, must be filed in the office of the clerk of the county where the original articles of corporation are filed, and a certified copy thereof must be filed in the office of the secretary of state; and thereafter the coi-poration shall continue its existence under the provisions of this code which are applicable thereto, and shall possess all the rights and powers, and be subject to all the obligations, restrictions, and limitations, prescribed thereby. [Anumdinent, approved March 30, 1874; Amend- ment 1873-4, 198; took effect July 1, 1874.] Original ssctioa: j its existence, under title 1 of this part, or un- obligations, restrictions, and limitations, pro- der the provisions of any subsequent title par- vided in this ])art ap[)licahle thereto, and it» ticulai'ly applicable thereto, as follows: corporate existence is continued." " 1. I'ublic notice of such meeting, and of ita By electing to coatinus its existence under object, must be given by publishing the same the provisions of the code, a compliance with in a daily uewsp-iper for two weeks, or a weekly the requirements of this section has been held newspaper for four weeks, successively, pub- to entitle sucli corporation to a renewed exist- li.shed in the county where the principal place ence beyond tlie period originally designated: of business of the corporation is. In lieu of People v. Pfixti'r, 57 Cal. 532. The »liiS2nting the publication, personal notice may be given opinion of Judge iloss was, that where by tlio to each member or stockholder thereof; law of its original organization a right of the "2. Two thirds of the members, if there is corporation was to pass to the public — in tint no capital stock, and if there is a capital stock, case a toll-road to become a free pnb'ic highway then stockholders representing two thirds of it, — the extension of its existence under the codo must vote in favor of sucli continuance; could not extend the right in question beyond "8. A copy of the proceedings of this meet- the original term. See for a case of i)ankin,j ing, giving the n imes of all persons present, corporation, whose original incorporation wai the votes taken, the notice calling the meeting, attacked, being allowed to continue under tho and the proof of its publication or service, all code, People v. Perrin, 5G Id. 345 288. Erbiting corpondions not affected. Sec 288. No corporation formed or existing before twelve o'clock, noon, of the day upon which this code takes effect, is affected by the provisions of Part IV, of Division First of this code, unless such corporation elects to continue \i\\ existence under it as provided in section two hundred and eighty-seven; but the laws under Avhich such corporations were formed and exist are applicable to all such corporations, and are repealed, subject to the provisions of this section. Existing corporations, how affected: See Say the court in that case, that the laws under J/ri/iir-7nuii V. liluh', I [) Cal. 579, construing the wiiicli corporations had been forme 1 were con- act of IS58 providing for the reincorporation tinued in force as to such corporations; and that of corporatiiuis formed prior thereto. "An act concerning cor[)Orations," passed April 'J'lie(inestii93, in nation of tiie name of the corporation: ['omaii regai-d to benevolent eoiporations. C. U. A. V. Alirams, 41) Cal. 435. The omis- "Other requisites of the articles of inoor- sion to state the place where its principal place poratiou of particular Idnds of corporation of business is to be transacted is fatal: //arris will be found enumerated in the following seo- V. McOnr/or, 29 LI. llI4; but the failure to tions: 291 as to railroad, wagon-road, and telc- desciibc the place of business of the corpora- graph corpoiations; 593 and 594 as to benevo- tion as the "principal place of bubiness"isa lent eorjiorations. mere ti'ciinieal error: Z/'ar /^(//■('p -9. V. 11". ir., 17 Kmit of corporate existence; See sec. Id. i;!2. If it is not S(4 forth in the articles of 354, subd. 1, and note. A statement in the cer- ineorporatiou of an association, other than for tificate of a term of existence greater than lim- prolit, that a majority of the meuibers wei-e ited by law is not fatal to its creation: /'loplt presentand votetl at an election of directors, the v. Chi'cyemav, 2 West Coast Rep. 270 (Tol.). certificate does not constitute the association Subscription to capital stock before in- a corporati »u: /'eojdc, v. Scl/ruli/e, 52 Id. ;{31. corporation not enforceable l)y the corooraliou: The omission in the affidavit, in regard to the Cal. Siujur sV/j. Co. v. Sc/ia/er, 57 Cal. 30G. 231. Certain corporations to ufate further /nets in articles. Sec. 291. The articles of incorporation of any railroad, wagon-road, or tele- graph organization must also state: 1. The kind of road or telegraph intended to be constructed; 2. The place from and to which it is intended to be run, and all the interme- diate branches; 3. The estimated length of the road or telegraph line; 4. That at least ten per cent of the (vapital stock subscribed has been paid in to the treasurer of the intended corporatiuu. G9 §§ 292-296 COrPORATICNS. [Drv. I, Part IV, The articles of incorporation of a railroad must fully set forth the amounts Bubscribed, and by vhouK M. d- S. V. /.'. A*. Co. V. tJUdreth, 53 Cal. 123. 292. Ai-ticles to be subscribed and acknowledged — Number and qualijkation of sk/ncrs. Sec. 292. The articles of incoi-poration must be subscribed by five or mora persons, a majority of whom must be residents of this state, and acknowledged bv each before some officer authorized to take and certify acknowledgments of couvevances of real property. [Amt-ndinenl, approved March 30, 1874; Amend- nif?/on a sulficient sum or de- Co., 33 Barb. 323; Patterson v. Arnold, 45 Pa. posit to meet them, would be a compliance St. 415. 295. Onth of officer to subscription of stock and payment of ten per cent. Sec. 295. Before the secretary of state issues to any such corporation a cer- tificate of the filing of articles of incorporation, there must be filed in his office an affidavit of the president, secretary, or treasurer named in the articles, that the required amount of the capital stock thereof has been actually subscribed, and teu per cent thereof actually paid to a treasurer for the benefit of the cor« poratiou. Affidavit. — Variation in the lan'juage of the ancewith the statute being substantial: Peoplt affidavit from that of the statute does not viti- v. i?. a; V. R. R. Co., 45 Cal. 306. ate the articles of incorporation, the compli- 296. A'-ticles to b"fih'd with county clerk and secretary of state. Sec. 29C. Upon filing the articles of incorporation in the office of the county clerk of the county in which the princip.al business of the company is to be transacted, and a copy thereof, certified by the county clerk, with the secretary of state, and the affidavit mentioned in the last section, where such affidavit is 70 TiTLB I, Chap. L] FORMATION OF CORPORATIONS. §§ 297-299 required, the secretary of state must issue to tlie corporation, over tlie great seal of the state, a certificate that a copy of the articles, containing the required statement of facts, has been filed in his office; and thereupon the persons sign- ing the articles, and their associates and successors, shall be a body politic and corporate, by the name stated in the certificate, and for the term of fifty years, unless it is in the articles of incorporation otherwise stated or in this code otherwise specially provided. [ Amend me^it, approved March 30, 1874:; Amend- mentH 1873-4, 199; took effect July 1, 1874.] Commencement of corporate existence. Blijclow v. Grpgorn, 73 111. 197; Unity Ins. Co. Am the law stood |)rior to tlie adoption of the v. Crane, 43 N. 11. 041; Abbott v. Omnlm Smelt- code, coiporati<;ns had a legal existence from in;) Co., 4 Neb. 410; Field ^miih, 55 Barb. 45. 297. Certified copy of articles as prima facie evidence. Sec. 297. A copy of any articles of incorporation filed in pursuance of this chapter, and certified by the secretary of state, must be received in all the courts and other places as prima facie evidence of the facts therein stated. [Amendment, approved Marcli 30, 1874; Amendments 1873—4, 200; took effect July!, 1874.] Stats. 1SG2, 109; 1853,83; 1850, 370, sec. 158; stated: .V. V. 15'. 11'. v. San Francisco, 22 Cal. 1861, 500, sec. 17. 434; Dannebroje Mining Co. v. AUment, 26 Ccrtiiisd copy of artiolss of incorpora- Id. 280. tion is jiriina facie evidence of the facts therein 298. TlVfo are members and who stockholders of corporation. Sec. 298. The owners of shares in a corporation which has a capital stock are called stockhulJers. If a corporation has no capital stock, the coiiDoratora and their successors are called members. 299. Filing articles of incorporation. Sec. 299. No corporation hereafter formed shall purchase, locate, or hold" property in any county of this state, without filing a copy of the copy of its articles of incorporation filed in the office of the seci'^tary of state, duly certi- fied by such secretar}' of state, in the office of the county clerk of the countj in which such proj^erty is situated, within sixty days after such purchase or location is made. Everj' corporation now in existence, whether formed under the provisions of this code or not, must, within ninety days after the passag3 of this section, file such certified copy of the copy of its articles of incorpora- tion in the office of the county clerk of every county in this state in which ib holds any property (except the county where the original articles of incorpora- tion are filed); and if any corporation hereafter acquire any property in anjr county other than that in which it now holds property, it must, within ninetj days thereafter, file with the clerk of such count}' such certified copy of the copj of its articles of incorporation. The copies so filed with the several countj clerks, and certified copies thereof, shall have the same force and effect in evi- dence as would the originals. Any corporation failing to comply with the pro- visions of this section shall not maintain or defend any action or proceeding in relation to such property, its rents, issues, or profits, until such artii les of incorporation, and such certified copy of its articles of incorporation, and such certified copy of the copy of its articles of incorporation, shall be filed at the places directed by the general law and this section; provided, that all corpora-. 71 S§ 300, SOI CORPORATIONS. [Div. I, Part IV, tions shall be liable in rlamag-es for any and all los3 tbat may arise by the fail- ure of such corporation to perform any of the foregoinpf duties within the time mentioned in this section; and provided further, that the said damages may be recovered in an action brought in any court of this state of competent jurisdic- tion, by any party or parties suffering the same. [Aniendmeid, a.jproviMl April 23, 1880; Amendments 1880, 1.3 {nan. ed. 403); took effect immediately.] Right to purchase and hold real estate: See sec. 3.34, subtl. 4, post. 300. Capital stock of banking corporoJions. Si^.c. 300. Every corporation that has been or may be created under the gen- eral laws of this state, doing a banliing business therein, and which has no capital stock, may elect to have a capital stock, and may issue certidcates 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 forn)aLion of corpora- tions; provided, that no such corjwration shall use or convert any moneys or funds theretofore belonging to it, or under its control, into ciipiral stock; but such funds or moneys must be held and managed only for the purposes and iu 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 divi^^lod, 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 holding Buch meeting, and its object, must be given by the i)resident of such corpora- tion, by publication in some newspaper printed and published in the county, or city and count}^ 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 persons present, the votes taken, the notice calling the meeting, the proof of its publication, the amount of capital actually'subscribed, and bv whom, all duly certified by the president and secretary of the corporation, must be filed in the offices of the secretary of state and clerk of the county where the articles of incorporation are filed. Thereafter such corporation is possessed of all the rights and powers, and is subject to all the obligations, restrictions, and limi- tations, as if it had been originall}' 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 iu money into said capital upon such stock, and any payment made in violation of this provision shall render all officers and directors consenting to the same jointly and severally liable to the depositors to the extent thereof. | New aection, approved March 29, 1878; Amendments 1877-8, 77; took effect sixtieUt datj after passage. ] See People v. Pen-in, 56 Cal. 345, for an example of a banking corporation coming iu uuiler tliia provision of the code. ARTICLE II. BT-LAWS, DIRECTORS, ELECTIONS, AND MEETINGS. 801. Adoption of by-laws, when, how, and by whom. Sec. 301. Every corporation formed under this title must, within one month after tiling articles of incorporation, adopt a code of by-laws for its govern- ment not inconsistent with the constitution and laws of this state. The assent of stockholders representing a majority of all the subscribed capital stock, or 72 SOS. Election of Directors; Notice of. The directors of rorpovation must be elected annually loy the stockholders members, and if no provision is made in tlie by-laws for time of election, the election must be held on the first lesday in June. Notice of such election must be given as • scribed in section three hundred one [unless all of the ickholders waive such notice in writing]. (In effect 60 days un and after February 22, 1909. Stats. 1909, Chap. S7.) Civ. Code, 1909. ^OOa. Change of Name, Filing Copy of Decree. Every corporation which has changed [itj name under the pro- visions of sections 1275.. 1276, 1277, 1278 and 1279 of the Code of Civil Procedure, must file in the ofHce of sec- retary of state [and in the office of the county clerk of each county in which the original articles or certified copies thereof are required by law to be filed] a certified copy of the decree of the court changing such name. (In effect ^0 days from and after April 16, 1909. Stats. ]:)09, Chap. 639.) Civ. Code, 1909. Title I, Chap, I.] FORJklATIOX OF CORPORATIONS. §302 of a majority of the members, if there be no capital stock, is necessarj' to adopt by-laws, if they are adopted at a ineetiug called for that purpose; and in the event of such meeting being called, two weeks' notice of the same, by adver- tisement in some newspaper published in the county in which the principal place of business of the corporation is located, or if none is published therein, then in a paper published in an adjoining county, must be given by order of the actiug president. The written assent of the holders of two thirds of the stock, or of two thirds of the members if there be no capital stock, shall be effectual to adopt a code of by-laws without a meeting for that purpose. [Aniendme)it, approved March 30, 1874; AmendineiUs 187J-4, 200; loofc effect JabjX, 1874.] Power to make by-laws: See sec. ."534, suljil. (), ])0»f. "The term 'by-law ' was origi- nally ai'pliod to the laws and orcliiinncLS en- acted by puliliu or municipal corporations. The (lilicrL'nue between a by-law of a private company and a law enacted by a municipality ia wide ami obvious. The former is meicly a rule prescribed by the majority under authority of the oilier members, for the regulaticu and manauement of tiieir joint affairs. But a by- law of a municipal corporation is a local law, enacted by public othcers by virtue of legisla- tive poweis (hlcL'ated by the state:" Morawetz on Corp., sec. .3()(), in note. The power to make bydaws is an incident to the very existence of a corporatiou: Ant^ell & Ames on Corp., sec. 325. But it is very rarely left to implication. trie, 9 Ala. 738; Ameshnri/ v. Bowdllch Ins. Co., G Gray, 51)G; Davis v. Pro])r'etorx, 8 Met. 3-1. A corporation cannot pass by-laws im- posing liens on stock so as to charge bona fide jnirchasers tliereof: Anyto-Cul. Buuk v. Uraug- er-s' Bank, 03 Cal. 359. By-laws must be reasonable, and not op- pressive or vexatious: St. Liihc\ Church v. M Am. Dec. Gl'.); Le<., 78 N. Y. 182, 183; Carlaa v. Father Slatlh"iv Soc^i/, 3 Daly, 20; People v. Medkul. So'-'ij, 24 Barl). 570; ComiHOiiu-euUk v. 6'///, 3 Whart. 228; Moore v. Bank of Commerce, 52 Mo. 377: 'Sta!e v. J/^y- chiints'' Ex., 2 Mo. App. 9G; see Boone on Corp., sec. 58. By-laws must be prospective, they can- tey-laws; Crockett, 9 Cal. 112; United States v. J J art, I Pet. C. C. .'i90; Bank v. Lanier, 11 Wall. .309; Kennebec R. Co. v. Kendall, 31 Me. 470; Sluy- f^sdid \ . New York, 7 Cow. 588; People v. Ki/'/>, 4 Id. 382; Aidntni Academy v. Striixj, Hoplc. Ch. 278; Seneca B'ink v. Lamb, 2G Barb. 595; Bntchers A<-, po>t; for the niliiig of vacancies on the board of di- rectors: Id.; for the duties of directors: See. 308; for the issuing of certificates of stock be- fore full ji.vyment therefor: Sec. 323; for the disposal of stock owned by the corporation: able corporations may provide, see sec. 599, pOxt. Nature and elfeot of by-la-^vs. generally: Sea (I ite. seo. 301, and note. Po jyers of corporatioaa: See po^t, sec. 354, and note. 304. Recording and amendment of by-laws. Sec 304. All bj'^-laws adopted must be certified by a raajorit}' of the directors and secretary of the corporation, aud copied in a legible haul ia some book kept in the office of the corporation, to ba known as the "book of by-l,iws," and no by-law shall take effect until so copied, and the book sli ill then be opened to the inspection of the public during office hours of e.i'.:h il ly except holidays. The by-laws may be repaalei or a-naudad, or new by-l.iw-J m.iy be adopted, at the annual meeting, or at any other meeting of the stockhoUIera or 74 Title I, Cn.\p. I.] FORMATION OF CORPORATIONS. § 305 members, called for that purpose Ly the directors, by a vote representing 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 be no capital stock, shall be effectual to repeal or amend any by-law, or to adopt additional 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 dele- gated, ma}' be revoked by a similar vote, at any regular meeting of the stock- holders or members. Whenever any amendment or new by-law is adopted, it shall be copied in the book of by-laws with the original by laws, and imme- diately after them, and shall not take effect until so copied. If any by-law be repealed, the fact of repeal, with the date of the meeting at which the repeal was enacted, or written assent was filed, shall be stated in said book, and until so stated the repeal shall not take effect. [Amendment, approved March 14, 1885; Slotideii and Amendmenfs 1885, 130.] Repeal or amendment of a by-law may be See Hall v. Crandall, 29 Cal. 5G7, upon tlie effected by tlie same [jower wliich created it: effect of a nnn-complianoe with tlie statute then Smith V. NtUoii, 18 Vt. 511, u.30. in existeuce as to the recordiuy of by-laws. 305. How many and wlio to he directors. Sec. 305. The corporate powers, business, and property of all corporations formed under this title must be exercised, conducted, and controlled by a board of not less than five nor more than eleven directors, to be elected from among the holders of stock; or where there is no capital stock, then from the members of such corporations; except that corporations formed, or to be foi-med, for the purpose of erecting and managing halls and buildings for the meetings and accommodation of several lodges or societies of any benevolent or charitable order or organization, and in connection therewith the leasing of stores and 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 of not less than five nor more than fifty directors, to be chosen from among the stockholders of such corporation or from among the members of such order or organization. A majority of the directors must bo in all cases citizens of this state. Directors of corporations for profit must be holders of stock therein in an amount to be fixed by the by-laws of the corporation. Directors of all other corporations must be members thereof. Unless a quorum is present and acting no business performed or act done is valid as against the corpora- tion. Whenever a vacancy occurs in the office of dix'ector, unless the by-laws of the corporation otherwise provide, such vacancy must be tilled by aa appointee of the board. [Amendment, approved January 20, 187G; Amendments 187 5-G, 71; took effect from passage.] Stats. ISoS, 1G9; 180G, 743-7o2; 1850,178, holder: ««<« v. il/cZ>an2W, 22 Ohio St. .So4. A 347, sees. ir.9. 345, 317; 18G2, 199; ISCS, G21. nou-compliance with the condition docs not Tho corporate powers must b3 exercisad viciato the director's acts; lie is Je facto tho by trustees selected from the stock'.olders representative of the corporation: S. J. S(trhi;ja or mcnilicrs: Gaxhu'dcr v. Uiltis, 33 Cal. II; Jjciiik v, ■'^irra L. Co., G'.i Cal. 179; i/VZ/jj v. Blood V. Marru.fe, 38 Id. 593. The dircctois North Carolina Instit., GS N. C. 423. Director of a corporation arc its chosen representatives, niu-t be a stockholder; but if, wliilo a director, and constitute the corporation for all purposes lie disposes of all of his stock he stid continuea of o«<. 306. Directors to he. elected at first meelinrf. Sec. bog. At the first meeting at which the by-laws are adopted, or at such fiubsequeut meeting as may be then designated, directors must be elected, to hold their offices for one year, and until their successors are elected and quali- fied. \Anv'n(}ment, approved March 30, 1874; Ameadmenls 1873-4, 202; took egect Jalij 1, 1874.] Fir'st board of directors 13 to be elected at Maunor of electins: See sec. 307; and the first tiKctiu^ at wliich liy-lawa are a(loi)teil. eleijfciom >j;enei-allv: Sec. 312, and note. Section ."lOI provider when the by-laws arc to be Directors hold over untd their successors fnum-d; and section 290 reijuires that the direc- are e'ected and qualitied, unless otherwise pro- tors to lie elected for the first year shall be vided: People, v. Rankin, 9 Johns. 147; Trns- uanied in the iirtir'psof iiicor]>oration. Corpo- tefn of Vernon Sorieti/ v. Jliilt, 6 Cow. 23; Mc- ration cnnnot take from shareh'ollersthe right to Call v. Bryan Mfg. Co., 6 Conn. 428. elect directors: Brewster v. Hartley, 37 Cal. 15. 307. Eh'clions; how conducted. Sec. 307. 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 directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit. In corpora- tions having no capital stock, each member of the corporation may cast as many votes for one director as thei'e are directors to be elected, or may distrib- ute the same among any or all of the candidates. In either case, the directors receiving the highest number of votes shall be declared elected. [Amendment, approved February 1, 1878; Amendments 1877-8, 78; took effect sixtieth day after passage. ] Stats. 1S.13, 150; 18G1, fi07; 1850, 347, 231; 1870, 577. Eleatioas, how conducted: See sec. 312. 308. Orgnnizalion of board of directors, etc. Sec. 308. Immediately after their election, the directors must organize hj the election of a president, who must be one of their number, a secretaiT, 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. TIi3 directors are agents of th3 corpora- indivi Inals was held to operate aa if issued to tion only when they act as" a board; as a gjn- the board: Statev. Wrirjhf, 10 Nev. 1G7. And eral rule, individually the members of the where a custom has sprung up to order the board do not represent the corporation: Gaxh- performance of work and furnisliing supplies wler v. Willis, 33 Cal. II; Blood v. Marcus", witho it the formality of a vote by the trustees, o8 Id. 503; Yilloio Jarl:.et Mitiinj Co. v. Ste- a person dealing with a trustee on the faitii of veiison. 5 Nev. 224; Stoystown tfc Greembnrif T. this custom may hold the coi-poration: Rank Co. V. Career, 45 Pa. St. 3S6; Ross v. Crorlce't, of iMahlhlmry v. R. ; Gnunji-r v. BassM, 08 Id. 4(JS; Eirp'ii Will, 1 Pars. E«i". Cas. 4:)3; S. C, 28 l\i. St. 3GS. Compelling the declaration of dividsnda, In the absence of some 2>i'ovision in the cliarter or bydaws to the contrary, the directors are vested with a discretionary power in regard to the njanagemeiit of the earnings of the corpora- tion, the time of declaring, and amount of the dividends; and a slianholdcr cannot conii'el the directors to declare a clividend wlien tliey are notacting in violation of tiieir cliarter: PkM v. Pratt, 3;JConn. 44G; State v. Baiikof Loui-tiaua, G La. 74.'); Hniilh v. Prattril'e Mj'ij. Co.. 21) Ala, 503; Ikirnj v. Mcrchanlx^ Kxcli. Co., I Sandf. 280, 303. Otherwise, wiiere the directors are wrongfully refusing to declare tiie dividends: BrcrM V. Brid'ji'jxn-t Sprini; Co., 42 Conn. 17; Scoft V. Eaijlc F. Ins. Co., 7 Tai e, 203. Directors liability for d3.;liri.ig divi- dends v^lien there is no surplus: .Sec Thomp- son's Liability of Ollicers of Corp 4.j3. Director's liability for embez3lem9nt by officers of corporation: Const. Cal. 1S7'.), art. 12, sec. 3. Dividends of insurance companies: See post, sees. 417, 429. Misappropriation of corporate property: Sec ShaUiick v. Oakland S. cC- li. Co., 58 Cal. 550, wiiere the trustees sought to vote them* selves the property of the corporation. Stats. 1850, 348; 1861, GOT, sec. 50; ISGl, G2G, sec. 5G; 18GG, 747-757; 1853, 89, sees. 13, 14. Penalty for violation of this section: See Pen. Code. stc. TGO. Dividends.— The prohibition contained in this section is directed against the tiustees, and is designed to [irotect creditors, and to guard against the distribution of the capital stock in the form of dividends: Martin v. Zellerliacli, 38 Cal. 390. It is a fundamental principle tliat dividends can be paid only out of the profits or the net increase of the capital of a corporation: Morawetz on Corp., sec. 344. Any arrangement uhich will have the effect to withdraw the capital and turn it over to tlie stockholders, except in the manner autlioiized by law, is void: Martin v. Zdlerhnrh, 38 Cal. 300; Lockharl v. \'an Alstyne, 31 Mich. 7G; PaineHrille F. R. Co. v. Kiu(j, 17 Ohio St. 53t; Pittsbimjk R. R. Co. V, Alk'ijhanr/, Gil Pa. St. 12G, 13.3. "Dividend" means a sum which the corporation sets apart from its profits to be divided amongst its niembers: Lockhart v. Van Altti/nc, 31 Midi. 7G. As to the meaning of "profits," see Field on Corp., sec. 104. Any attempt to distribute capital in the shape of dividends will be restrained in equity at the suit of a stoekhoUlei-: Car/ienter v. X. Y. ,i- N. //. /?. //. Co., 5 Abb. I'r. 277; and see the numerous English citations in Morawetz on Cor[i., sec. 404. Dividends may be jiaid in scrip or in shares of stock: //arris v. S. F. Snf/ar /icfinerij, 41 Cal. 293; /irown v. Leiiiy/i Coal etc. Co. ,'49 Pa. St. 270; Ohio V. Cleveland R. R. Co., G Oliio St. 489; Farley v. C'tizcn.'i' Gas-li; 1875-6, 729.] Banks to publish and record semi-amuial statements. Section 1. Every corporation and all persons and every person hereafter doincf a banking business in this state ehall, in January and July of every year, publish in at least one newspaper published in the county in which t!ie principal office of such corporation may be situated, or in which said persons or person may reside, and also file for record, in the recorder's office of said county, a sv\orn statement, verified, in the case of any such corporation, l)y its president or manager, and by its secretary or cashier, and in tlie case of any such individual or individuals, by him or tiiem, of the amount of capital actually paid into sucii corporation, or into such bank- ing business; provided, that nothing shall be deemed capital actually paid in except money bonai fide paid into tlie treasury of sucii bank, and under no circumstances sliall the promissory note,, check, or otlier obligation of any director or stockholder, or of the proprietors or proprietor of any such bank, be treated, computed, or in any maimer considered any part of such actually paid in capital. If no newspaper of general circulation be puljlisiied in the aforementioned county, tiitn and in tiiat case such publication of said statement sliall be made in at least one newspaper of general circulation published in the city and county of San Francisco, and in one newspaper of general circulation published in the c'fcy and county of Sacramento. Ansets and licbUities to be described. ofc-u. 2. Eveiy corporation and all persons and every person hereafter doing a banking bim^ ness in this state sliall lAcewise publish in such newspaper or newspapers, and shall also tile for record in the recorder's office of said county, in January and July of each year, a like sworn Btiitement of the actual condition and value of its assets and liabilities, and where said assets are situated. Liability for making false statement. Skc. li. The directors of every such corporation which shall publish or file for record, aa aforesaid, a false statement of the amount of capital actually and Ixma tide paid into such cor- poration, or a false stati.'ment of the actual condition and value of its assets and lialiilitics, or aa to where said assets are situated, shall be jointly and .severally liable to any person thereafter dealing with such corjjoration to the full extent of such dealing; and no corporation, and no pei-- 80u or persons who fail to comply with the provisions or any of the provisions of this law, shall maintain or jirosecute any action or proceeding in any of the courts of this si.ate until they sliall have lirst duly filed the statements herein provideanking rorporations. Siic. 4. Where any of such banking corporations shall be foreign, the statements hereinbe- fore provided for shall be verified by the agent or manager of the business of such corjiotMtion resident in this state, who shall be subject to the same liabilities herein provided as against directors of any such banking corporation, and also as against every such bank officer. Recorder to keep records. Skc. 5, The recorder of each county of this state shall keep two sets of wcU-bonnd books for the record of the sworn statements herein provided for, resp'ctively, one of which sets of hook* shall be iabtlcd "statements of banking capital," and the other, "statements of 1j inking assets," and said recorder shall, upon the payment of his fees for the same, reconl separately said respective swoin statements in its appro])riate l>ot)k, and shall keep a separate index e il, 85 Id. 75, 78. In California it is said that neither a strict nor a liberal construction id to be adopted where it will operate to defeat the obvious intent of the statute, but tliat it ehould be reasonably constructed: Mokeliunne Jl'dl etc. Co. V. Woidliury, 14 Cal. 2G5; David- son V. llankin, 84 Id. 5J5. This is the view preferred by Thompson's Liability of Stock- l)oLlei-s, sec. .53. Who is a stockholder. — The above section very carefully describes who are to Ije considered Btockholders upon whom the liability for the debts of the corporation siiall fall. Mr. Thomp- Bon, Liability of Stockholders, pt. 2, enters into an exhaustive consideration of tiie (pies- tion, and concludes generally that to render cue liahle as a stockiioldcr in a corporatiim for a corporate debt, by virtue of a statute impos- ing a personal liability upon stockholders, lie must either have entered into tiiat relation by actual contract, section 10>, or must, l)y hold- ing himself out as a stockholder and assuming to act as such, have estopped himself from denying that ho is a stockholder as against the corporation's creditors, section 1G9. To con- Btituto one a stockholder within the intent of should have been paid for or the certilicate received. A corporation may give credit for its stock, and tlie certificate is but proof of property which may be established witiiout it: JMUchcil v. Bc'-knian, 04 Cal. 117; Chiffia v. Cuniminijs, 37 Me. 70; Chi'ster Glass Co. v. Dewen, 8 Am. Dec. 12S; Si/ear v. Crawford, 28 Id. 513; Jn re South ^fountain Consolidaled Milling Co., 7 Saw. 30; JIawes v. Anjh-S ixon etc. Co., 101 Mass. 385; S. C, 111 Id. 200; Burr V. WUcox, 22 N. Y. 551. Where the corporation h.as been fully formed, but the stock not divitled nor the certilicates issued, the members are tenants in common of the stock and are liable: Ilmves v. Amjlo Saxon etc. Co., supra. The fact that one haa subscribed for stock in the uaiue of an agent does not exempt him from liability: Burr v. i^'ikoz, supra; nor that the subscription is made iu a mmor's name: Castleman v. Holmes, 4 J. J. Maisii. 1; Roman v. Fry, 5 Id. G34. Subscrilj- ing for shares after ail have been taken does not make o:ie liable as a stockiioldcr: Lathrop v. KnoAand, 4'J Barb. 432. Merely signing an agreement to take stock in an unincorporated co;nj)any does not constitute one a stockholder after incorporation: Mont<'rey R. R. Co. v. /HI- dri-Ui, 53 Cal. 123. One who never accepts, but refuses to accept, any stock in a corporation is not a stockholder, even though the secretary enters his name on tlie books as sucli: Mud jett V. Ilorretl, 33 Id. 25. One who holds shares as collateral security, the ccrtiflciites standing in his name, and there being nothing to siiow that is not the ab.solute owner, must answer as such, especially if he acts in that character: Jlo'yoke. Bunk v. Bnrnhani, 11 Cusli. 183; Barre NrUional Bmk v. /linijham .Mj]]. Co., 127 Mass, 5!J3; Gri.twoll v. Silljman, 72 Mo. 1 10. Other- wise where the real relation of tlie holder to tlio stock isapparentfrom the transfer-book: Fisher v. Seligman, 7 Mo. A pp. 333. A scries of iuterestiag decisions by the high- 83 §322 COEPOPATIONS. [Div. T, Tart IV, est court of Mlssonri and of tho Unite^l States court, terminating ill op-iosingaljudicatiKm hy the supreme court of tlie United States an 1 the ctate supreme court, liave hcen rcnilefcd re- cently upon the liability as a stiickholdcr of a pledgee of stock who voted the sar.ic at corpo- rate meetings. The ([ucstion turned upon the construction of a statnta of Missouri declaring that pledgees of stock were not liable to cred- itors. In this instance tho pledgees held their Btock from the corporation itself, not from Btockliolders. Tliis fact was deemed by the state court to take the case out of the statute, and to reader liable these pledgees who had conducted themselves as sto:k holders. The federal courts entertained dilT'crent views, de- ciding that the defendants were within the [iro- toetion of the statute. The decisions arc: Gr'oiwohl V. SelUjman, 11 Mo. 110; Flshir v. Scl'i'jman, 73 Id. 1 ; and Burje^x v. SfUrjman, 2 Sup". Ct. Rep. 10; S. C, '2 lianking Law J. 84. Measure and uaturo of liability. — The li- ability of the stockholder for the corporate debts is primary and original, and not that of a guarantor or surety: Mokdumne Hill etc. Cn. V. Woodhury, 14 Cal. 2G5; Davvlsoii v. Jianhhi, 3t Id. 503; Younrj v. Roseuhaum, 39 Id. C40; Sonoma Valley liank v. Hill, 59 Id. 107; Fa'jmonville v. McGidlowjh, Id. 2S5; ilitchell V. Beckinan, 64 Id. 117; Mrrroio v. Superior Court, I.l. 383; Fuller v. Ledden, 87 111. 310; Todhunter v. Randolph, 29 Ind. 275; Perkhvi v. Sandern, 58 Miss. 733; Flaah v. Conn. IG Fla. 4JS; Stewart v. Lay, 45 Iowa, 601. Any legislation which should attem;)t to limit this liability, or to postpone it, or make ifc secondary to that of the corporation, would be violating article 13, section 3, Const. Cal. 1879, and would be void: Morrow v. Superior Court, 64 Cal. 383; see also French v. Tesche- macher, 24 Id. 518; Larrabee v. Baldwin, 35 Id. 155. It is not dependent or contingent upon a recovery against the corporation: Dividnon v. Rankin, 31 Id. 503; Vo'inj v. Rosenbaum, 39 Id. 643. Nor is it affected by a suspension of the renidly ag dnst tho corpora- tion: Young V. Roitenbaum, auirra. It is no de- fense to an action brought against a stock- holder to recover his ratable proportion of a debt of the corporation that property of the corporation which has beeai)ledged to plaintiff remains undisposed of: Sonoma Valley Jlank v. Hdl, 59 Id. 107. But a discharge of a part of the debt of the corp.)rati(m is pro tan'o a discliarge of the liability of the stockliolder: •S'. J. Samn^jn Bink v. Pharis, 53 Id. 339. As between themselves, tho corporation is tho principil djbtor, and the stockholders t!ie smeties or guarantors: Prince v. Lynch, 33 Id. 623. The above section permits an action, joint or several, to be brought against tho stock- holders. Under Const. Cal. 1379. art. 13, sec. 3, stockholders in a corporation organized un- der A statute prior to the code, an 1 int re- organized under its provisions, will be liable i:i an actio I at law for thoir proportion of t!i3 corporate debts: Morrow v. Superior Conri, 61 Cal. 833. It is noticeablo tliat this pr )vision of t!ie new constitution is not framed iu the language of section 322 with respect to the pro- jjortionate liability of stockholders. The sec- tion makes the stock'.iolder liable only for his proportion of each debt; the new constitution says that he u liable for auch proportion of all the debts. All, here, may, and perhaps does, mean each; otherwise tho word "all" is superfluous. Under the act of 1853 it was belli that any one creditor whose \ Ga.sixjlU Co., G3 Id. 42(5, judgment was entered, on an agreed statement of facts, directing tiie com- pany to transfer the stock. The following cases maintain that maiuLimiii is not tlie rem- edy: Baker v. Marshall, 15 Minn. 177; S'ate. v. I\oinhaner,i'i'islo. loj; Wilkuisoii v. Provi.clenre Bank, 3 R. I. 22; ElUut v. Gnerr^-ro, 12 Nev. 105; Traxisfar cf Eharcs of stock, until entered upon the books, is not valid except as betv,-een tiansfcrrer and transferee: Weston v. Bear R. . v. Sewell, 35 Md. 233; Scripture v. Francestown S. Ci., 53 X. II. 571; Bank of America v. Mc- Nei', 10 Bush. 54; West Branch etc. Co.'s Ayjieal, 81 P.i. St. 19; Gennan Btuldin7; Protection Life ln-<. Co. v. Os- rjo-jd, 93 111. GO. Coaiplaint in such an liction should allege damige, indorsement, and deliv- e -y of tlio certi.icate to plaintiff, or that it w.n pjescnted to him, and a demand for a new certilicate: Edwards v. Sonoma Valley 85 §§ 325, 32G CORPORATIONS. [Div. I, Part IV, Bank, 50 Cal. IT.G. When corporation should upon the books; and DriscoU v. Went Dra'lley execute a transfer of stock: lioone on Corp., Mj]i. Co., 59 N. Y. 102, asrjertiuji; tlie contrary, sec. 1J2. Foreign execiitor'i5 indorsement and cspcci.iUy where the rights of a /j'taml v. Middlesex Co. Bank, 2GGom\. 144; equaled the indebtedness, will be enjoined: Byon V. Carbr, 22 La. Ann. 98. But a corpo- Smith v. '40 and '5G Quartz Mlniw] Co., 14 Cal. ration m-.\y have a lien upon the shares of a 212. So also where a transfer is made to fraud- stockholder for his debt if the b3'-laws ex- ulently control an election, the voting tlie stock pressly provide so. And whether it is compe- will be enjoined: Webb v. Ridfjely, 38 Md. tent for the slockliolders to adopt such a by- 304. law depends, it seems, upon the charter. For A by-law imposing a lien on stock, seek- valualjle discussions of this subject, see Pender- ing to charge the same thercwi:!) in tlic Isr.nds ga^t V. Bank n/S'ock'on, 2 Saw. 108, upholding of bona fide purchaser?, is in confl et w th this the corporation's powpr to pass a by law mak- section, and not enforceable: Amjl -C 7. Bank ing the payment of the stockholder's debt a v. G/'«»,7fr.s' fia(/j, G:lCal. 359; see.sHjjra, under condition precedent to the transfer of his stock " Compelling Transfer." 325. Shares lidd by married loomen, etc. Sec. 325. Shares of stock in corporations held or owned by a married womaa may be transferred l)y her, her agent or attorney, without the signature of her hu.sbaud, in the same manner as if such married woman were a feme sole. All dividends payable upon any shares of stock of a corporation held by a mar- ried woman may be paid to such married woman, her agent or attorney, in the same manner as if she Avere unmarrieil, and it is not necessary for her husband to join in a receipt therefor; and any proxy or power given by a married womaa touching any shares of stock of any corporation owned by her is valid and binding without the signature of her husband, the same as if she were unmar- ried. 326. Non-resident stockholders. Sec. 326. When the shares of stock in a corporation are owned by parties residing out of the state, the president, secretary, or directors of the corpora- tion, before entering any transfer of the shares on its books, or issuing a certifi- cate therefor to the transferee, may require from the attorney or agent of the non-resident owner, or from the person claiming under the transfer, an affidavit or other evidence that the non-resident owner was alive at the date of the trans- fer, and if such affidavit or other satisfactory evidence 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 appi'oved by a judge of the superior court of the county in which the principal office of the corporation is situated, conditioned to protect the corpo- ration against any liabilit}' to the legal representatives of the owner of the shares in case of his or her death before the transfer; and if such affidavit or other evidence or bond be not furnished when required as herein provided, neither the corporation nor any officer thereof shall be liable for refusing to enter the transfer on the books of the corporation. [Amendment, approved Feb- ruary IG, 188.'); Statutes and Amendments 1883, 4; took effect immediatrty J Stock owned hj forei2;n resident may be to a transfer of the stock upon the corporation's Bold by Lis executor and t'lo cerLi.icate in- b.iuks: Brown v. Sa7i Jos6 Gas-li'jfit Co., 5S dorsed by the execut()r entitles the purchaser Cai. 42G. 86 Tttlr I, Chap. II.] CORPORATION STOCK. §3 327-332 327. Contracts to relieve directors from liabilities fixed by constitution void. Seo. 327. Au;y contract or contracts, verbal or written, hereafter inadd v^hereby 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. [New section, approved April 12, 1880; Aiuend- vienls 1880, 9 (Ban. ed. 202); took effect immediatehj.] An Act imposing a tax on the issue of cerlijicntes of stock corporations. [Approved April 1, 1878; 1877-8, 955.] Fee allowed. Skcuon 1. It shall be lawful for the secretary of every corporation in the state of California to dcmaud and receive of any person requiring the issue to him of any certificate of stock in such corporution, a fee of ten cents in coin for each certilicate, \vh<'tlicr such certificate he the origi- nal issue or an issue on transfer, and such certificate shall not be delivered by the secretary until such fee sliall be paid. Duty of secrctari/. Sec. 2. It shall be the duty of the secretary of everj' such corporation, on the first Monday in Januar}', April, July, and October, of eacii year, ti> make I'cturns, under oath, to the tax collfctor, or otiicer citing as tax collector, of the number of certificates issued by tiie corporatioa of which he is secretary, during the quarter preceding, and pay to sucli tax collector tiie sum of ten cents in coin for eacli and every certificate so issued by said corporation, except that in t!io city and county of Sau Francisco sucli returns and payments sliall be made to the license collector, or otliccr eni^agcd in the collection of licenses in said city and county. Exam illation of secretary and hooks. Sec. 3. Such tax collector, or license collector, is hereby authorized and empowered lo examine such secrctarj', under oath, as to the truth of said returns, and to examine, if necessary, the iiooks of such corporation, so far as tliey relate to the transfer of stock, or issue of cerUli- cates, and if the returns are not correct, tlien lie is authorized to conimeuce an action against sucli corporation in any courb of competent jurisdiction, in the name of the people of tlio state of California, for a penalty of one hundred dollars for each certificate issued by such corporatiou and not so returned under oath, and several penalties may he joined in sucli action. Perjury. Skc. 4. Any persons violating the provisions of section two of this act sliall be deemed guilty of a misdemeanor, and false swearing to any return provided iu section two shall be deemed perjury. Disposal of moneys eollecti'd. Skc. T). All moneys collected under the provisions of this act shall be paid by such tax col- lector, or license collector, into the county treasury, and shall become a part of the general fund, or if there shall in any county lie no genera! fund, then the same shall become a part of Buch fund as tlie board of supervisors may direct. Sec. G. Tliis act shall take eCTecfc on the lirsb Monday in April, 187S. ARTICLE II. ASSESSMENTS OF STOCK. 331. Directors may levy assessment.'f. Sec. 81J1. The directors of any corporation formed or existing under the laws of this state, after one fourth of its capital stock has been subscribed, may, for the purpose of paying expenses, conducting business, or ptiying debts, levy and collect assessments upon the subscribed capital stock thereof, in the manner and funn, and to the extent, provided herein. [Amendment, approved March 30, 1874; Amnidments 1873^, 20G; took effect July 1, 1874.] Assessment. — The stockholders' liability has jurisdiction to enforce the same: Alpera v. for unpaid assessment on the corporate stock Superior Ct., 3 West Coast Rep. 52G. is founded on contract, and a justice's court 332. Limitation of assessments. Sko. 332. 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 corpo- ratiou 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 87 |3 3r.3-3"6 CO^.rOR/.TTONS. [Div. I, Part IV, less arLOunt is sufiicieut, 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 installujents of not more than ten per cent per month, unless in the articles of incorporation it is otherwise provided; 3. The directors of fire or marine insurance corporations may assess such a percentage of the capital stock as they deem proper. Assessments on paid up stock. — That a amination of the question in Saiifn Crnz /?. H. lBoi'])(>r:itioi> in tliis state has jiower to levy as- v. JSprtckeU, 2 West Coast Rep. 752, 833. hessiiieiits on paid up stock, see the careful ex- J333. Levy of aiise^sment. Sec. 333. No assessment must be levied while any portion of a previous one remains unpaid, unless: 1. The power of the corpoi-ation has been exercised in accordance with the provisions of this article for the purpose of collecting such previous assess- ment; 2. The collection of the previous assessment has been enjoined; or, 3. The assessment falls within the provisions of either the first, second, or third subdivision of section three hundred and thirty-two. 834. What order shall contain. Sec. 334. Every order levying an assessment must specify the amount tliereof , when, to whom, and where payable; fix a day, subsequent to the full terjii 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 Btock, not less than fifteen nor moi'e than sixty days from tae day the stock is declared delinquent. 835. Notice of assessment. Sec. 335. Upon the making of the order, the secretary shall cause to be pub- lished a notice thereof, in the following form : (Name of corpoi*ation in full. Location of ju'incipal 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 Iho cor- poration, payable (when, to whom, and whei'e). Any stock upon which this assessment shall remain unpaid on the (day fixed), will be delinquent aud adver- tised for sale at public auction, and, unless payment is made before, will be sold on the (day appointed), to pay the delinquent assessment, together with costs of advertising and expenses of sale. (Signature of secretary, with location of office.) 836. Service and publication of notice. Sec. 336. The notice must be personally served upon each stockholder, or, in lieu of personal service, must be sent through the mail, addressed to each stockholder at his place of residence, if known, and if not known, at the place where the principal office of the corporation is situated, and be published once a week, for four successive weeks, in some newspaper of general circulation and devoted to the publication of general news, published at the place desig- nated in the articles of incorporation as the principal place of business, aud also in some newspaper published in the county in which the works of the cor- poration are situated, if a paper be published therein. If the works of the cor- poration are not within a state or territory of the United States, publication in Title I, ^ ii -.v. IT.] CORPORATION^ STOCK. §§ 337-341 a paper of the place where they are situated is not necessary. If there "be no newspaper published at the jjlace designated as the principal place of business of the corporation, then the publication must be made in some other newspaper of the county, if there be one, and if there be none, then in a newspaper pub- lished in an adjoining county. [Amendment, approved MarcliSO, 1874; Amend- menls 1873-4, 20G; took e^'ect July 1, 1874.] 337. Delinquent notice. Sec. 337. If any portion of the assessment mentioned in the notice remains unpaid on the day specified therein for declaring the stock delinquent, the sec- retary must, unless otherwise ordered by the board of directors, cause to be published in the same papers in which the notice hereinbefore provided for shall have been published, a notice substantially in the following form: (Name in full. Location of principal place of business.) Notice. — There is delinquent upon the following-described stock, on account of assessment levied on the (date), (and assessments levied previous thereto, if any), the several amounts set opposite the names of the respective shareholders, as follows: (Names, number of certificate, number of shares, amount.) And in accordance with law (and an order of the board of directors, made on the [date], if any Buch order shall have been made), so many shares of each parcel of such stock as may be necessary, will be sold, at the (particular place), on the (date), at (the hour) of such day, to pay delinquent assessments thereon, together with costs of advertising and expenses of the sale. (Name of secretary, with location of ofiSce.) 333. Contents of notice. ., Sec C38. The notice must specify every certificate of stock, the number of shares it represents, and the amount due thereon, except where certificates may not have been issued to parties entitled thereto, in which case the number of shares and amount due thereon, together with the fact that the certificates for such shares have not been issued, must be stated. 330. Publication of notice. Sec. 339. The notice, when published in a daily paper, must be published for ten days, excluding Sundays and holidays, previous to the day of sale. When published in a weekly paper, it must be published in each issue for two weeks previous to the day of sale. The first publication of all delinquent sales must be at least fifteen days prior to the day of sale. 340. Jurisdiction acquired, how. Sec. 340. By the publication of the notice, the corporation acquires juris- diction to sell and convey a perfect title to all of the stock described in the notice of sale upon which any portion of the assessment or costs of advertising remains unpaid at the hour appointed for the sale, but must sell no more of such stock than is necessary to pay the assessments due and costs of sale. 341. Sale fo he by piiblic auction. Ulc. 341. On the day, at the place, and at the time appointed in the notice of sale, the secretary must, unless otherwise ordered by the directors, sell or cause to bo sold at public auction, to theliighest bidder for caoh, so many shares of each parcel of the described stock aS may be necessary to pay the assessment and charges thei-eon, according to the terms of sale; if payment is made before the time fixed for sale, the party paying is only required to pay the actual cost of advertising, in addition to the assessment. 89 §3 342-347 CORFORATIONS. [Dnr. I, Part IV, 342. Highest bidder to he the purchaser. Sec. 342. The person offering at such sale to pay the assessment and costa for the smallest number of shares or fraction of a share is the highest bidder, and the stock purchased must be transferred to him on the stock-books of the corporation, on payment of the assessment and costs. 343. In defaull of bidders, corporation may purchase. Sec. 343. If, at the sale of stock, no bidder offers the amount of the assess- ments and costs and charges due, the same may be bid in and purchased by Ihe corporation, through the secretary, president, or any director thereof, at the amount of the assessments, costs, and charges due; and the amount of the assessments, costs, and charges must be credited as paid in full on the books of the corporation, and entry of the transfer of the stock to the corporation must be made on the books thereof. "While the stock remains the property of the corporation, it is not assessable, nor must any dividends be declared thereon; but all assessments and dividends must be apportioned upon the stock held by the stockholders of the corporation. Presumption that corporation has no stock to sell: See CoZ, Sugar Mfg. Co. \. Scha/er, 57 Cal. S'J6. 344. Disposition of stock purchased by corporation. Sec. 344. All purchases of its own stock made by any corporation vest the legal title to the same in the corporation; and the stock so purchased is held subject to the control of the stockholders, who may make such disposition of the same as they deem fit, in accordance with the by-laws of the corporation. or vote of a majority of all the remaining shares. "Whenever any portion of the capital stock of a corporation is held by the corporation by purchase, a major- ity of the remaining shares is a majority of the stock for all purposes of election or voting on any question at a stockholders* meeting. 345. Extension of time of delinquent sale. Sec. 345. The dates fixed in any notice of assessment or notice of delinquent sale, published according to the provisions hereof, may be extended from time to time for not more than thirty days, by order of the directors, entered on the records of the corporation; but no order extending the time for the perform- ance of any act specified in any notice is effectual unless notice of such exten- sion or postponement is appended to and published with the notice to which the order relates. 346. Assessments shall not be invalidated. Sec. 34G. No assessment is invalidated by a failure to make publication of the notices hereinbefore provided for, nor by the non-performance of any act required in order to enforce the payment of the same; but in case of any sub- stantial error or omission in the course of proceedings for collection, all previ- ous proceedings, except the levying of the assessment, are void, and publication must be begun anew. 347. Action for recovery of stock and limitation thereof. Sec. 347. No action must be sustained to recover stock sold for delinquent assessments, upon the ground of irregularity in the assessment, irregularity or defect of the notice of sale, or defect or irregularity in the sale, unless the party seeking to maintain such action first piiys or tenders to the corporation, or the party holding the stock sold, the sum for which the same was sold, to^^-ether with all subsequent assessments which may have been paid thereon, and iuter- 90 Title I, Chap, in.] CORPOP.ATE POWEES. §§ 3i8-354 est on such sums from the time they were paid; and no such action must be sustained unless the same is commenced bv the tiling' of a complaint and the issuing of a aiummons thereon within six mouths after such sale was made. 348. Publication, how proved. Sec. 348. The publication of notice I'equired by this article may be proved by the afSdavit of the printer, foreman, or principal clerk of the newspaper in which the same was published; and the afSdavit of the secretary' or auctioneer is prima facie evidence of the time and place of sale, of the quantity and par- ticular descri2:)tion of the stock sold, and to whom, and for what price, and of the fact of the purchase money being jDaid. The affidavits must be filed in the office of the corporation, and copies of the same, certified by the secretary thereof, are prima facie evidence of the facts therein stated. Certificates signed by the secretary and under the seal of the corporation are prima facie evidence of the contents thereof. [Amendmeitl, approved March 30, 1874; Amendments 1873-4, 207; took cjj'ect Julij 1, 1874.] 349. Waiver of sale — Action to recover aHsessment. Sec. 349. On the day specified for declaring the stock delinquent, or at any time subsequent thereto and before the sale of the delinquent stock, the board of dii-ectors may elect to waive further proceedings under this chapter for the collection of delinquent assessments, or any part or portion thereof, and may' elect to proceed by action to recover the amount of the assessment and the costs and cxjienses already incurred, or an}' part or portion thereof. Actiou for assessments ill mining corpo- stocklioklcrs' subscriptio:i sucli liability was ratiouo. — That tliis t-cotiou docs not create uor incurred, see Iii, re South Jit. M. Co., 7 Saw. .30; was intended to create any personal liabili.y S. C. 8 Id. 3G6. See al&o jJOd, uote to repealed fur assessments, unless from the terms of the section 584. CHAPTER III. CORPORATE POWERS. Article I. Genkral Powers 354 II. Rkcords 377 III. Examination of Corporaiion 382 IV. Judgment against and Sale of Corporate Property 388 ARTICLE I. GENEU.VI. POWERS. 354. Powers of corporations. Sec. 354. Every corporation, as such, has power: 1. Of succession, by its corporate name, for the ]>eriod limited; and when no period is limited, perpetually; 2. To sue and be sued, in any court; 3. To make and use a common seal, and alter the same at pleasure; 4. To purchase, hold, and convey such real and personal estate as the pur- poses of the corporation may require, not exceeding the amount limited in this part; 5. To appoint such subordinate officers or agents as the business of the cor- poration may require, and to allow them suitable compensation; G. To make by-laws, not inconsistent with any existing law, for the manage- ment of its property, the regulation of its affairs, and for the transfer of its stock; 91 §354 COrPORATIGNS. [Dxv. I, Part IV, 7. To admit stocliholJoM or me.nbars, and to sell their stock or shares for the payment of asses3:iient;i or iustallinents; 8. To enter into any obligation.} or contracts essential to the transaction of its orJiuary alTairs, or for the purposes of the corporation. Powers of corporations are suth only as arc expressly granted by the act of incorpora- tion, or are necessary to the exercise of these ex- press powers: Sdliiion li. M. Co. v. C an /I, :^ Went Coast liep. 7v) (Ilaho). A corporation I)eiup; a mere "creature of the law," sec. 283, (Uite, "it possesses l in subdivisions 1,2, 3, 4, G: 1 BLi. Com. 475, 476; 2 Kent',') Com. 224; Angell & Ames on Corp., sec. 110; but these powers and capacities are suliject to legislative limitation and modifica- tion, and corporations created in disregard of the common-law rules depend for t'.ieir exist- ence and powers upon the law, its creation and objects: /\nwb-i v. P. A C. Pet. Co., 33 Id. G'.)G; McSpedon V. Mai/or, 7 Bosw. GOl ; 20 IIow. Pr, 395; Ilood V. ^\ Y. ct- N. II. R. R. Co., 22 Conn. 502. Power to take stock in. another corporation. — It i.'5 not of itself idtra vires for one corporatioa to take slock in another: Evoms v. Bailey, 4 West Const Rep. 427. Gubd. 1. GuGcession for period limited: Sec code limit of fifty years, sec. 290. Limit for homestead corporations ten years: Sec. 557. S .bcl. 2. To sue and bo sued is a common- law attribute of corporations: See aupra. The which this peculiar body has in conmion with action should be taken i:i the corporate name: a natural pcr.jon, Brice, Ultra Vires, p. 28, re marks: "In old times, corporations were con sidercd to have most of the powers — the due exercise of such powers being secured by the imposition of certain formalities — and to be Bub'eitt to the (jreater part of the obligations, of ordinary citizens. But of latL% from the in- troduction and development of the doctrine of ultra <'.,22Ca!. I.jO. It may adopt any seal con- venient: Eureki Co, v. Bailc/ Co., 11 Wall. 491; Tenneij v. East Warren' Co., 43 N. II. 343; Bin': 't'.e B. & M. R. Co., 71 111. 200; X. Y. erty ex- cept franchises, unless restrained by express pro- hibition in the act of incorporation, or by some general statute: Green's Brice's Ultra Vires, pp. 224, in note, et seq.; see also supra, subd. 4. 2. The giving of a note. "No question is better settled upon authority than that a cor- poration, not prohibited by law from doing so, and without any express power in its charter for that purpose, may make a negotiable prom- issory note, jiayable either at a future day or upon demand, when such note is given for any of the legitimate purposes for which the com- pany was incorporated:" Mosa v. Avrrilt, 10 N. Y. 457; Se/ley v. SanJos6 I. M. d: L. Co., 59 Cal. 22; Molt v. Hicks, 13 Am. Dec. 550 ; and note; Buckley v. Briggs, 30 Mo. 452; Came v. Briglinm, 39 Me. 35; Clark v. School District, 3 11. I. 199. With regard to the manner of executing a note so as to make it the corpora- tion's obligation, it is sutlicient if it appear from the entire instrument that such was the intention: Blanchard v. Kaull, 44 Cal. 440; flasbliv. Cornish, 13 Id. 45; Sharer v. Ocean Mining Co., 21 Id. 45; Smith v. Eureka Flour Mil's, 6 Id. 1; Farmers' d: Mechanics' Bank of Savings v. Colby, 04 Id. 352, a case where the company's name did not appear in the body of the note, which was signed by G. A. C. and D. K. T., in their official capacity, and by them and others indorsed. The general principle in- volved in tiiese eases is well settled. It is its application to particular circumstances that gives rise to the difficulty: See 1 Daniel on Neg. Inst., sees. .398 et seq. The execution Oj conveyances by corporations is touched upon in subdivision 4, supra. A corporation may enter into a contract of guaranty: Low v. C. P. R. /*., 52 Cal. 53. It may make an assign- ment: McKifrnan v. LcnZ'-n, 50 Cal. Gl. A contract in consideration of protecting the cor- poration from loss on a guaranty is binding, although the guaranty is not: Mound City L. d W. A.'is'n V. Slauson, 3 West Coast Rep. 372. The general doctrine of u!tra vires is adverted to in the commencement of this note. Po'wrers of municipal corporations: See Pol. Code. . Sec. S'jG. In addition to the po-w^ers enumerated in the preceding section, and to those expressly given in that title of this part under which it is incor- porated, no coi*poration shall possess or exercise any corporate powers, except such as are necessary to the exercise of the powers so enumerated and given. Incidental povrers. — This section isanega- whicii, see sec. 354, and note, at thecommeace- tive grant of incidental powers, with respect to meut thereof. 356. Bnnkbuj expressly prohibi/cd. Sec 35G. No corporation shall create or issue bills, notes, or other evidences of debt, upon loans or otherwise, for circulation as money. Violation of section a penal offense: tation upon corporate powers docs not prevent Pen. Code, sec. G48. the execution of negotiable instruments, see Constitutional provision to the same purpose: sec. 354, subd. S, and note. Const. Cal. 1879, art. 12, sec. 5. That this limi- 357. Uluinomfr does not invalidate iwttrument. Sec. 357. The misnomer of a corporation in any written instrument does not invalidate the instrument, if it can be reasonably ascertained from it what cor- poratiou is intended. 05 §§ 358, 350 COIUr RATIONS. [Div. T, Paut IV, Misnomer of corporatfon no more impairs In pleading, the misnomer should be taken the validity of its acts tliaii a like error iu the advantage of by plea in abatem-jnt: Dank of name of an individual. It its contracts ex- Utici v. SmaUei;, 14 Am. Doc. 5"2(). With re- pressed in writing contain sufDcient to identify spcct to the degree of accuracy req nisi to ia the corporation, tlie misnomer is uninipnrtant: criminal pleadings, see People v. Putter, '.\o Cat. Jlajerstown T. Roi, 2 Id. 402; Angell & Ames on Corp., see. 99; Alorawctic oa Thatchrr v. IIV.s< River Nat. Bank, 19 jMich. Corp., sec. 181. 19G; Ptoplt V. .S'. B. Q. M. Co., 39 Cal. 514. 358. Corporation to organize within one year. Sec. 358. If a corporation does not or^^aniza and commence the transaction of its business or the construction of its works within one year from the date of its incorporation, its corporate powers cease. The due incorporation of any company, claiming in good faith to be a corporation under this part, and doing business as such, or its right to exercise corporate powers, shall not be inquired into, collaterally, in any private suit to which such de facto corporation may bo a party; but such inquiry may be had at the suit of the state on information of the attorney-general. Organiiiation Tvlthin one year. — As an ance of acts relating to the organization of a illustration of what is meant by commencing corporation can only be investigated in a direct to transact the corporate business within the proceeding instituted for tliat purpose, ami not year, see People v. S. d: V. R. R. Co., 45 Cal. in a collateral action: S. V. H'. W. Co. v. Xan 306. If a franchise is granted by the state Francisco, 21 II. 441; AfcFarlaiioratioa Provision respaotln^ railroad companies, can only be had at the suit of the state on in- two years: See sec. 4GS, post. formation by the attorney -general: Rondelt v. Sa:ii3 respecting street railroads: See i^ay, 32 Id. 354. The irregular ornon-perform- sec. 502, ^'osi. 359. Isauing bonds— Increasing and diminishing capital stock. Sec. 3o9. No corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void. Every corporation may increase or diminish its capital stock, or increase its boiided indebtedness, subject to the foregoing pro- vision of this section, at a meeting called by the directors for the purpose, as follows: 1. Notice of the time and the place of the meeting, stating its object, and the amount to which it is proposed to increase or diminish the capital stock, must be pei'sonally served on each stockholder resident in the state, at his place of residence, if known, and if not known, at the place where the principal office of the corporation is situated, and be published in a newspaper published iu the county of such principal place of business once a week for nine weeks success- ively. 2. The capital stock must in no case ba diminished to an amount less than the indebtedness of the corjioration, or the estimated cost of the works Avhich it may be the purpose of the corporation to construct, 3. At least two thirds of the entire capital stock must be represented by the vote in favor of the increase [or| diminution, before it can be effectual. 4. A certificate must be signed by the chairman and secretary of the meeting and a majority of the directors, showing a compliance with the requirements of this section, the amount to which the capital stock has been increased or dimin- ished, the amount of stock represented at the meeting, and the vote by which the object was accomplished. 96 Title 1, Chap. 111.] CORPORATE POWERS. §§ 360, 361 5. The certificate intist be filed in the office of the county clerk where the original articles of incorporation were filed, and a certified copy thereof in the office of the secretary'- of state, and thereupon the capital stock shall be so increased or diminished, or the bonded indebtedness may be increased accord- ingly. [Amendment, approved March 18, 1885; Statutes and Amendments 1885, 141; took effect immediately.] The amended section was annulled by the constitution of 1S70, it being inconsistent there- with: EituiKj V. Orov lie M. Co., 50 Cal. G49. The amendment of 18S5, supra, was an amend- ment to the section as amended in 1883; Stats. 1883, 31. "The preceding sections of this article were taken from Stats, 1850, 347, sees. 1-0. See also Stats. 1853, 885 18G1, 85; 18G2, 540, 19'J, 110; ISGO, 747; 18G8, 325:" Commissioners' note. Inoreasing or diminishing the capital Btock. — By capital stock is nicant "the capi- tal of the corporation on whicii it transacts business, whether such capital consists of money, property, or other valuable commodi- ties." So defined in Martin v. ZellThnrh, 3$ Cal. .309, iti discussing the declaring of divi- dends from the "capital stock." The same ex- pression is also used of reducing "the cajiital stock," in the very next clause of the sectioa tlieii before the court. A corporation has no implied power to alter the amount of its capital stock; it can be done only by virtue of an ex- press authorization in the charter: A'. Y. ib N, 11. n. n. Co. V. Schitylrr, 34 N. Y. 30; liaUway,, Co. V. Allerton, 18 Wall 235. See the increase of the capital stock of th» . Spring Valley Water-works, held valid Ia, Sielii V. Howard, 4 West Coast Rep. 43. 360. Acquisition of real property. Sec. 3G0. No corporation shall acquire or hold any raoi'e real property than» may be reasonably necessary for the transaction of its business, or the construc- tion of its works, except as otherwise specially provided. A corporation may- acquire real property, as provided in Title YII., Part III., Code of Civil' Pro- cedure, when needed for any of the uses and purposes mentioned in said title.. [Amendment, approved March 30, 1874; Amendments 1873-4, 208; took effect July,. 1, 1874.] 29 Vt. 93; Parje v, Ilciheherfj, 40 Id. 511. The- above section, which imposes in the most posi- tive language the restriction upon th« right t»- acquire realty, would seem to be in contraven- tion of the general rule that a limitation upoa- this implied ritrht is to be construed lilieral!y», with a view to further t!ie general object for which the corporation was created: Doimhi'/v. Mnrxhall, 23 N. Y. 302; Paqe v. llfhiehrrQi 40 Vt. 81; Od"ll V. Oddl, 10 Allen. 1. A cor- poratiou has no more right to piircli ise an. equitable estate in land for an unauthorized' purpose, than to purchase a legal estate lui ler similar circumstances: Coleman v. San Rafaet etc (Jo., 49 (;.al. 517. Power of insurance corporations to ac- quire In nd: Sei; soc. -ll."". Power of railroad corporation toacqalrft laud: See sec. 4G5, Limit to acquisition of realty. — Where a corporation act] u ires more land than the law al.ovvs, it acts in tlio exercise of a legitimate power but to an improper extent; it commits a wrong, but one which can only bo inquired int > by the state, and does not thereby lose its rights as against a trespasser: Whitman Minimj Co. V. Uaker, l3Nev. 38G; California Stat". Tde- graph Co. v. Alta Telflder8: Broinrer v. i^ofkral, 10 Barb, no authority to pass a resolution excluding one 21G; aliirmed, i Seld. 5G2; Angell & Ames on of the members of the institution from an Corp., sec. G8I. inspeution of its books, although they l)elieve Sec also previous section as to publicity of him to be hostile to the interests of the iusti- miuutea of corporate proceedinga. 99 5 382-388 corporations: [Dit. I, Part IV, ARTICLE III. EXAMINATION OF CORPORATIONS, ETC. 882. Examination into affairs of corporation by Htatc officer!^. Sec. 382. The attorney -general or district attorney, whenever and as often as required by the governor, must examine into the affairs and condition of any corporation in this state, and report such examination, in writing, together •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 directors and officers of any corporation, and may examine them on oath in i-elation to the affairs and con- dition thereof, and may examine the books, papers, and documents belonging to such corporation, or appertaining to its affairs and condition. 333. Examination made by the leginlafure. Sec 383. The legislature, or either branch thei'eof, may examine into the affairs and condition of any corporation in this state at all times; and for that purpose, any committee appointed by the legislature, or either branch thereof, may administer all necessary oaths to the directors, officers, and stockholders of such corporation, and may examine them on oath in relation to the affairs and condition thereof; and may examine the safes, books, papers, and docu- ments belonging to such corporation, or pertaining to its affairs and condition, and compel the production of all keys, books, papers, and documents by sum- mary process, to be issued on application to any court of record or any judga thereof, under such rules and regulations as the court may prescribe. 384. Chapter and article may be repealed. Sec 38i. The legislature may at any time amend or repeal this part, or any title, chapter, article, or section thereof, and dissolve all corporations created thereunder; but such amendment or I'epeal does not, nor does the dissolution of any such corporation, take away or impair any remedy given against any such corporation, its stockholders or officers, for any liability which has been previously' incurred. Amending or repealing charter of corpo- former constitution, and say: "Section 384 rations. — In the constitution of Califuriiia, in was inserted iu this code out of an abundance force when this code was adopted, was the fol- of caution, and not because it was dc .lued lowin,!T sectio": " Corporations may be formed necessary, for there can be but little doubt under general laws, but shall not be created by that the constitutional provision rjuoted at the epecial ret except for municipal purposes. All beatl of this note enters into and beco iies a general laws and special acts passed pursuant part of the contract, thereby reserviu'^ to the to tlds section may be altered from time to legislature the ri^ht to re[)eal, impair, or alter time or reperded:" Art. 4, sec. .31. The con- any law relative to the formation of corpora- stitution of 1879. art. 12, sec. 1, preserves this tions, even tliou^h the result reached would section in the following language: "Corpora- be tlie dissolution of every corporation organ- tions may be formed under general laws, but ized within tlie state." For a concise state- shall not be created by special act. All liws ment of the principles connected with the now in force in this state concerning corpora- constitutional reservation of power to alter, tions, and all laws that may be hereafter amend, or rep-'al the contract with a corpora- pass(!d pursuant to this section, may bi altered tion, and a collection of the recent af transfer pointed out must be fol- franchise.s may be levied upon and sold under lowed: IVooil v. Triickfe. T. Co., 24 Cal. 474; cxecutioi), in like manner as otiier property is Muiirof v. Thomas, 5 Id. 470; Thomas v. levied upon and sold:" Code coinmissiontTs' Annsfroaj, 7 Id. 2S6; Utandjord Bdiikw Fer- note, appended to the original section, wliicli ris, 17 Coun. 2'>0; StUe Bank v. Tutt, 44 Mo. extended the power to levy execution to the 3G7. The qlle^•tiuu as to the validity of a Batisfr.ction of "any judgment against a cor- transfer of a corporation's franclii-se is one poration organized lor pTolit." which concerns the pulilic alone: 0. li. R. Co. Franchises are special piivileges conferred v. O. B. J: F. V. R. R. Co., 4j Cal. 3G.3. The by government upon individuals, and which do corporation is a necessary party defemlant to not belong to the citizens of the country gen- an action which seeks to enforce its judgment cral!}' of common riglit: Da)ik of AiKjuxla v. by .sale of the corporate franchise: Bracia v. Eaiie, \'.\ I'et. 57-3; 2 Waslib. on Ileal Prop. Ni'l'i to disincorporate. Sec. 399. The dissolution of corporations is provided for: 1. If involuntary— in Chapter V. of Title X.,Part 11., of the Code of Civil Procedure; 2. If voluntary— in Title VI., Part IIL, of the Code of Civil Procedure. See Code Civ. Proc, sees. 802, 227. 400. On dissolution, directors to be trustees for creditors. Sec. 400. Unless other persons are appointed by the court, the directors or managers of the affiiirs of such corporation at the time of its dissolution are trustees of the creditors and stockholders or members of the corporation dis- solved, and have full power to settle the affairs of the corporation. 401. Mmj extend term of existence. Sec. 401. Every coi-poration foi-med for a period less than fifty years may, at any time prior to the expiration of the term of its corporate existence, extend such term to a period not exceeding fifty years from its formation. Such exten- sion may be made at an}' meeting of the stockholdei's or members, called by the directors expressly for considering the subject, if voted by stockholders repre- senting two thirds of the capital stock; or by two thirds of the members; or may be made upon the written assent of that number of stockholders or mem- bers. A certificate of the proceedings of the meeting upon such vote, or upon such assent, shall be signed by the chairman and secretary of the meeting and a majority of the directors, and be filed in the office of the county clerk, where the original articles of incoi*poration were filed, and a certified copy thereof in the ofuce of the secretary' of state, and thereupon the term of the corporation shall be extended for the spscifiel period. [Amendmeid, approved March 30, 1874; Amendments 1873-4, 209; took rfft^ct July 1, 1874.] 402. Sow corporations may cmfinue Iheir existence. Section 402 was repealed by act approved March 30, 1874; Amendmeuta 1873-4, 209; took effect July 1, 1874. 403. Title I. to apply to all corporations, with certain exceptions. Sec. 403. The provisions of this title are applicable to every corporation, unless such corporation is excepted from its operation, or unless a special pro- vision is made in relation thereto, inconsistent with some provision in this title, in which case the special pi-ovision prevails. An Act ill r<'hition to forei'jn corporations. [Approved April 1, 137J; 1871-2, 823.1 Foreifjn rorporafion-t to rf^sJ./wrt'^ }>ersoii npoii ivhoin procss may be nerved. Section* 1. Every corporation heretofore created by the l.iws of any other state and doing budiuess in this state shr.ll, wiiliin one Iran Ired an 1 Iwenty days after the passage of tliis act, and any corporatioji hereafter createil an I doing businiss i.i this state, within sixty days from the time of commencing to do basincss ia tlii-i state, ilesi ;nate some persoa residing in t'ae county in which the principal place of business of said corporation in this state is, upon whom process 102 Title II, Chap. I.] GENERAL PROVISIONS, §§ 414, 415 Issned by authority of or under any law of this state may be served, and within the time aford. said shall lile such designation in the office of the secretary of state; and a copy of such desig- nation, duly certified by saitl officer, sliall be evidence of such appointment; and it sliall be law- ful to serve on such person so designated any process issued as al'oresaiil. Such service shall be made on sucli person in such manner as shall be prescribed in case of service required to be maJo on foreign coi pi "rations, and such service shall be deemed to be a valid service thereof. Pewdtii for failure to designate. Sec. 2. Every corporation created by the laws of any other state which shall fail to comply wiih tlie provisions of the first section of tliij statute shall be denied the benefit of the statuCea of tliis state limiting the time for the commencement of civil actions. PrivileiiPs on cowpliance. Sto. 3. Every corporation created by the laws of any other state which shall comply with the provisions of the first section of this statute shall be entitled to the benefit of the statutes of this state limiting the time for the commencement of civil actions. TITLE II. INSURANCE COrtPOUATIONS. Chapteb I. General Provisions 414 II. Fire and Marine Insurance Corporations 424 III. Mutual Life, Health, and Accident Insurance Corporations. 437 CHAPTEr. I. GENERAL PROVISIONS. 414. SiibsnTrijitions to capital stock opened, and how coUrdrd. Bec. 414. After the secretary of state issues the certificate 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 mauncr specified, or in their by-laws, or if none, then in such manner as they may by order adopt, to opou books of subscription to the capital stock then unsubscribed, and to secure sub- scriptions 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. Insurance in generail: See po!:loi v. follow he could not recover on the policy as (he Liverpool etc, Ins, Co., 51 Oa. 76; Crui/han v. contract* When an act of incorporation pre- Underwriters' Afjency, 53 Id. 100; see tlio note Bcribos the mode of contracting, that mode in Wood on Ins., sec. 4. The subject ia thu3 must be observed or th© instrument does not succinctly summarized in May on Ins., 2(1 create a contract: Angell & Amea on CJorp., cd., sec. 23: '•The distinction I.et'.veen a con- Bee. 291; Head v. Providence Ins. Co., 2 tract to insure or to issue ;i policy of insuraiice Crancli, 127; Dawes v. North Uiver Ins. Co., 7 and the policy itself is obvious, and constantly Cow. 4G2. A contract of insurance or an recognized by tlie courts. The former may be agreement to insure need not necessarily be in by parol or in any form. The latter m;\y be writing, as at common law; merely verl,al eon- regulated and controlled liy statutes or by the tracts of this character are valid and binding, bydaws of the company issuing it." 417. Dividends, of what, and when declared. Sec. 417. The directors of every insurance coi^poration, at such times as their by-laws provide, must make, declare, and pay to the stockholders dividends 'of so much of the net profits of the corporate business and interest on capital invested as to them appears advisable; but the moneys received and notes taken for premium on risks which are undetermined and 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. Declaring dividends: See aide, sec. 309, and note. 418. Directors liable for loss on innurance in certain cases. Seo. 418. If any insurance corporation is under liabilities for losses to an amount equal to its capital stock, and the president or dii'ectors, after know- ing 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. 419. Certain insurance companies to have a capital slock of at least two hundred thousand dollars. Sec. 419. Every company, corporation, or association hereafter formed or ■.organized under the laws of this state, for the transaction of business in fire, marine, inland navigation, or life insurance, must have a subscribed capital ^ stock equal to at least two hundred thousand dollars, twenty-five per cent of which must be paid in previous to the issuance of any policy, and the residue •within twelve months from the diiy of filing the certificate of iuconx)raLion. No person, corporation, or association, organized or formed under tlic laws of : any other state or country as a stock company, must transact any such iusur- jvftnce business in this state, unless such person, corporation, or association haa 104 rtTLK tl, i'ttAP. II.] FltlE AND MAraNE INSURANCE COMPANIES. §§ 420-425 a paid-up capital stock equal to at least two liundred thousand dollars in avail- able casli assets, over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding^ risks, as provided in section six hun- dred and two of the Political Code of this state. Nor must any person, cor- poration, or association, oi'ganized or formed under the laws of any other state or country as a mutual insurance company, transact any such insurance busi- ness in this state, unless such person, corporation, or association 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 outstandinrr risks, as provided in said section six hundi'ed and two of the Political Code of this state. [Amendmenl, approved April 1, 1878; Amendmenfs 1877-8, 80; took effect from pcLnHage.] Capital stock. — Underthis section asit stood have a suhscril)cd capital stock of one liundred in 1874 insurance cor[joratiou3 were required to thousand dollars: People v. Flint, G4 Cal. 49. 420. Certain insurance companies to have capital stock of at least one hundred thousand dollars. Sec. 420. Every company, corporation, or association hereafter formed or orpfanized under the laws of this state, for 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 pre- Bcribed for the payment of the capital stock of a corporation organized under section four hundred and nineteen of said Civil Code. No company, coi'pora- tion, or association, formed or organized under the laws of any other state or country as a stock company, must transact any such insurance business in this state without a paid-u[) 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 I'isks, as provided in section six hundred and two of the Political Code of this state. Nor must any com- pany, corporation, or association, formed or organized under the laws of any other state or countiy as a mutual insurance company, transact any such insur- ance business in this state, unless such company, corporation, or association possesses available cash assets equal to at laast one hundred thousand dollars over and above all liabilities for losses reported, expenses, taxes, reinsurance of all outstanding risks, as provided in said section six hundi'ed and two of the Political Code of this state. [New section, approved April 1, 1878; Amendments 1877-8, 80; took effect from passage.] CHAPTER II. FIRE AND MARINE INSURANCE CORPORATIONS, 424. Payment ofsubstrriptionn — Capltil to be all paid in twelve monthly. Sec 424. The entire capital stock of every fire or marine insurance corpora- tion liiust be paid up in cash within twelve months from the filing of the articles of incorporation, and no policy vi insurance must be issued or ridk tiiken until twenty-five i)er cent of the whole capital stock is paid up. r^ro h2sur--inoe: See jiost, Sfcs. 2732 et acq. Ma:i-i3 inauranoe: See post, sees. 2GJ3 et scq. 425. Ci-rlificnle of capital sto(-h paid up to be fled, and when. Sec. 425. The president and a majority of the directors must, within thirty days after the payment of the twenty-five jjcr cent of the capital stock, and 105 §§ 42G-429 CORPORATIONS. [Div. I, Part IV, also within thirty days aiter the payment of the last installment or assessment of the capital stock limited and fixed, prepare, subscribe, and swear to a cer- tificate settiuf^ forth the amount of the fixed capital and the amount thereof paid np at the times respectively in this section named, and file the same in the office of the county clerk of the county where the principal place of business of the corporation is located, and a duplicate thereof, similarly executed, with the insurance commissioner. 426. Propi^rty which may be inaured. Sec 42G. Every corporation formed for fire or marine insurance, or both, }nay make insurance on all insurable interests within the scope of its articles of incorporation, and may cause itself to be reinsured. Insurable intarest defined: See sec. 2j46, j'O'^t. 42.1. Funds may be invested, how. Sec. 427. Corporations hereafter 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 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 the state of California not in default for interest on such bonds; 4. In loans upon unincumbered real property, or upon merchandise in warehouse, worth at least one hundred per cent more than the amount loaned. But no investment in the securities named in subdivisions one, two, and three, of this section, must be made in amount exceeding the par value of such securities, nor exceeding their market value. [Amendmenly approved April 1, 1878; Amendments 1877-8, 81; toot effect from j)assage.\ 428. Risk, limitation of. Sec. 428. 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 reinsuring the excess above one tenth. \ Amend- ment, approved March 30, 1874; Amendments 1873-4, 210; took ejfecl July 1, 1874.] Limitation of amount of insurance. — If a 29 Pa. St. 31. The violation of the charter is corporati.iii vuhiutarily and without fraud or a matter for the company to settle \vit!i the nnsrepresentation insure for a sum bayoiid that power tliat gave them the c'.iartcr, but they allowed by law, the policy is not tli^rcby ren- cannot set nj their own misconduct i.i dt'fense (lered void: Wil'ams v. A^ E. Mutual F. Ins. agai.ist tlio claim of the insured for iud.'mu ty, Co., 31 Mo. 211); F.I Her y. lionton Mat. F. I:i>i. as by showing that in insuring to the stl[iulate(i Co., 4 Mi;t. 203; Iloxie v. ProDclencc Ins. C >., amount they iiave done wliat they ought not 6 R. I. 517; Cumberland Valley Lis, Co. v. Schfll, to have done: See cases supra. 429. Amounts to be reserved bffnrt makiny dividends. Sec. 429. No corporation, formed hei-aafter under the laws of this state and transacting fire, marine, inland navigation insurance business, or insurance provided for by section f c ur hundred and twenty of this code, must ujake any dividends, except from profits remaining on hand after retaining unimpaired — 1. The entire subscribed capital stock; 2. All the premiums received or receivable on outstanding marine or inland risks, except marine time risks; 106 liTLE II, CiiAP. II.] FIRE AXD MARINi: INSURAXCE COMPANIZS. § 430 3. A fund equal to one half of the amount of all premiums on all other risks not terminated at the time of makiu;;*' such dividend; 4. A sum sufficient to pay all losses reported, or in course of settlement, and all liabilities for expenses and taxes. \Am''er to rqn'ip and employ men as fire patrol. SECTION 1. Any corporation of iiudcrwriters heretofore organized and now existing, orwliioh may lie hereafter organized iindur the laws of this slate, for the imri^ose of iliscovcring and pre- venting iircs and of saving property and human life from conflagration, and duinj business within any nmnicipal corporation of this state, shall have p)wer, at its own proper cost and fXi.en c, to maintain a corjis of men, with proper oliicers, etpiipped with the neci'ss.iry machin- ery and aiiparatua therefor, whose duly it sliall be, so far as practicable, to discover and prevent tires and save property and human life from conllagration; and for the cffjcLive discharge of such duties, pov/er and authority is hereby granted such corps to enter any building on (ire, or in which property is on fire, or whicii such corps or any ofDcer thereof shall deem to lie imme- diately exposed to any existing firo, or in danger of taking fire from a bunnng building, and to remove or otherwise save r.nd protect from coiillagratiou or damage by water any ]>i'operty, du: ii;g and i.. mediately after sucli fire; provbled, /i-nwier, that nothing in this ; ct shall be so Construed as in any degree to lessen, impair, or interfere; with the powers, privdcgcs, duties, or autluxity of the regular tire department of such nmnicipality; and provided fiir!/ier, that no act of su'di corps .shall justify any owner of any building or property in abandoning such build- ing or property. Priv(/('r town wherein such a coi-poration may carry on business, and all la\\s of this state a.ijilicalile t'» sueh city and county, or ci.y or town, for the conviction or pup.i.sl;ment of any pei-son or persons willfully or carelessly obstructing the progress of tlie apparatus of the lire deparLment of sucli city and county, or city or tov.'u, while going to a firo, or of an^' person or persons willfully or carelessly injuring any animal or prfiperty of said fire depanment, shall bo equa Iv a|iplicalil(i to any person or persons willfidly or carelessly obstructing the progress of the apparatus <>f such cor|ioration wldlo going to a fire, and to any person or jiersons who sliall will- fully "r carele-sly injure any anin)al or property of sucli corporation; ami said laws ami ordi- nances, and their penaUies, may be enforced in the same courts and in the sanio manner, and with erpud force aid cOect, as in tlio case of the fire department. Costs anil exjieiities of' maiiit.ahiintf or;f"irization, liom wsi-xned. Sec. 3 Each such corporation shall ha\ o power t) assess its members for tho cost of estab- lish ng and leainlauiing itsorganization, upon the basisof in^uranc; bnsinesa transacted by such mem!) rs within tin; municipality where such corporation is carrying on business, an I i:i such in..nncr as is oi' may be | roviilcd for by its bydaws. and all assessments so made may l>e duly <'n;oiced under anil by virtue of the laws of this state. For tlic purpose of ajcortaining tlie basis of such assessments such corporation shall havo power to re(]uiro and domuud from eaeb 107 §§ 431-43S CORPCRATIONS. [Div. I, Pakt IV, and every mcmlier thereof quarterly statements sworn to by the president or secretary, in case the in-^nrauce company or mcuiher on wliicli the demand is made shall be incorporated under the laws of this state, or otherwise hy the a'^ent of the co njtany wlio shall bn raco .;nize I as such by the iiH'iriii'jc uo uiiH-iiouor of this stat;^ w!iii;!i (|uarterly statement shall show the a'^gregate araimiit of pfi-niiunis received and receivable for fire insurance upon property within suc'.i munici- pality, by said comnmy or nieudjcr, during t!ic three niontlis next j)recedin'^. respectively, tlie thirly-lirst day of March, the thirtieth day of June, the thirtieth day of September, ano»<, sees. 2762 et seq. CHAPTER III. MUTUAL LIFE, HEALTH, AND ACCIDENT INSURANCE CORPORATIONS. 437. Capital stock — Guarantee fund. Sec. 437. Every corporation formed for the purpose of mutual insurance on the lives or health of persons, or against accidents to persons for life or any fixed period of time, or to purchase and sell annuities, must have a capital stock of not less than one hundred thousand dollars. It must not make any insurance upon any risk or transact any other business as a coi*poi*ation 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 thou- sand dollars, as hereinafter provided. If more than the requisite amount 13 subscribed, the stock must be distributed pro rata among the subscribers. Any subscription maybe rejected by the board of directors or the commi'tee thei'eof, either as to the whole or any part thereof, and must be, so far as rejected, with- out effect. 438. Of zoliat guarantee fund shall consist. Sec. -138. The guarantee fund mentioned in the preceding section must consist of the pi-omissory notes of solvent parties, approved by the board of directors and by ea-^-h other, payable to the corporation or its order, and at such times, in such modes, and in such sums, with or without interest, and con- formable in all other respects to such requirements, as the board of directors prescribe; but the amount of the notes given by any one person must not exceed in the whole the sum of five tliousand dollars, exclusive of interest. Such note must be pay.able absolutely and at the option of the corporation; they must be negotiable, and may be indorsed and transferred, or converted into cash, or otherwise dealt with by the corporation, at its discretion, without reference to lOS Title 11, Chap. III.] MUTUAL LIFE. ETC., INSURANCE COMPANIES. §§ 4.'59-442 any contingency of losses or expenses. Sucli 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 ita debts, obligations, and indebtedness next after its assets from premiums and otlier 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 Btock, is equal to the aggregate of the original amounts of the guarantee fund and of the capital stock. 439. WJiat consiUutcH, and dcficininj infixed capital. Sic. 439. The sum accumulated as provided in the preceding section, together with the capital stock, shall become and remain the fixed capital of the corpo- ration, not subject to division among the stockholders or parties dealing with it, or to be expended in any manner otherwise than maybe required in payment of the corporation's debts and actual expenses, until the business of the corpo- ration is closed, its debts paid, and its outstanding policies and obligations of every kind canceled or provided for; and if from any cause a deficiency at any time occurs in such fixed capital, no further division of profits must take place until such deficiency has been made up. 440. Declaration of fixed capital In befded. • Sec. 440. Whenever the fixed capital of the corporation is obtained as here- iubefoi'e provided, the precident of the corporation and its actuaiy, or its sacretaiy if tbere is no actuaiy, must make a declaration in writing, sworn to before some uotaiy public, of the amount of such fixed capital, and of the par- ticular kinds of property composing the same, with the nature and amount of each kind, which must be filed with the original articles of incorjioration, and a cojiy, certified by the county clerk, must be published for at least four suc- cessive weeks, in a newspaper published in the county where the principal business of the corporation is situated. Upon the filing of such declaration the guarantee fund is discharged of its obligations, and all notes of the fund remaining in the control of the corporation, and not affected by an}' lien thereon, or claim of that nature, must be surrendered by it to the makers thereof, respect- ively, or other parties entitled to receive the same. 441. Guarantee notes and inlereat, how di'^pofted of. Sec. 441. Until the guarantee fund is discharged from its obligations, as provided in the pi'eceding section, no note must be withdrawn from the fund unless another note of equal solvency is substituted therefor, with the approval of the board of directors. The corporation must allow a commission, not exceeding five per cent per annum, on all such guarantee notes while outstand- ing, and also interest on all moneys paid on such notes by the parties liable thereon, at the rate of twelve per cent per annum, payable half-yearly until repaid by the corporation, unless the current rate of interest is different from this amount, in which case the rate p.ayablo maj', from time to time, at intervals of not less than one year, be increased or reduced by the board of directors, so as to conform to the current rate. \Ame.ndmenty approved March 30, 1874; Amend- ments 1873-4, 210; took effect July 1, 1874.] 442 Tns^ured to he entitled to vote, xchen. Sec. 442. After the filing of the declaration of the fixed capital, as in this article provided, tL6 holders of policies of life insurance for the term of life, 109 §§ 443-447 CORPORATIONS. [Div. I, Part IV, on wliieh 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. 443. May invest in what securities. Sec. 44^5. The number of directors specified in the articles of incorporation may be altered from time to time during the existence of the corporation by resolution, at the annual meeting of a majority of those entitled to vote at the election of directors, but the number must never be reduced below five. 444. Investment of capital stock, on what securities. Sec. 444. Life, health, and accident insurance corporations may invest their capital stock as follows: 1. In loans upon unincumbered and improved real property -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 secu- rities of the United States and of the state of California; 3. In the purchase of or loans upon interest-bearing bonds of any of the other states of the Union, or of any county, or incorporated city, or city and county in the state of California; 4. In the purchase of loans upon any stocks of corporations formed under the laws of this state, except of mining corporations, which shall have, at the time of the investment, a value, in the city and county of San Fi'ancisco, of not 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 subdivis- ions 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. \ Amendment, approved March 30, 1874; Amendments 1873-4, 211; took effect Julij 1, 1874.] 445. Limitations to holding of stock, etc. Sec. 445. The corporation ma}', by its by-laws, limit the number of shai'es 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 stockliolders may seem proper, not inconsistent with the provisions of this title or pai't. 446. Premiii VIS, how payable. Sec 44G. All premiums must be payable wholly in cash, or one half or a greater proportion in cash, and the remainder in promissory notes bearing interest, as may be provided for by the by-laws. Agreements and policies of insurance made by the corporation may be upon the basi.s of full or partial participation in the profits, or without any participation therein, as may be pro- vided by the by-laws and agreed between the parties. 447. Insurance commissioner to be furnished with valuation of policiesi outstandr- ing. Sec. 447. Every life insurance corporation organized under tbd laits of this state must, on or before the first day of February of each year", funiish the in-i Burance commissioner the necessarj' data for determining the Valu'ati&n of all its policV?? outstanding on the thirty-first day of December then next preced- ing. And every life insurance company organized under the laws tjf any other Btate or country, and doing business in this state, must, upon ihenvritten requi- Title n, Chap. III.] MUTUAL LIFE, ETC., INSURANCE COMPANIES. §§448-460 sition of the commissioner, furnish him, at such time as he may designate, the requisite data for determining the valuation of all of its policies then outstand- ing. Such valuations must be based upon the rate of mortality esLiblished by the American experience life-table and interest at four and one half per cent per annum. For the purpose of making the valuations, the insurance com- missioner is authoi'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 companies whose policies are thus valued. {Amend- ment, approved March 30, 1874; Amendments 1873-4, 211; took effect July 1, 1874. J 448. No stamp required on accident insurance contract. Sec. 448. No stamp is required nor stamp duty exacted on any contract of insurance, when such contract insures against accident which may result in injury or death. 449. Valuation of policies — Retaliatory provision. Sec. 449. When the certificate of the insurance commissioner of this state, of the valuation of the policies of a life insurance company, as provided in sec- tion four hundi'ed and forty-seven of the Civil Code of this state, issued to any company organized under the laws of this state, shall not be accepted by the insurance authorities of any other state, in lieu of a valuation of the same, by the insurance officer of such other state, then every company organized under the laws of such other state, doing business in tliis state, shall be required to have a separate valuation of its policies made under the authority of the insur- ance commissioner of this state, as provided in section four hundred and forty- seven of the Civil Code. [New section, approved March 30, 1874; Amendments 1873—4, 270; took effect sixtieth day after 2)assage.] 450. Policies issued within state, what to contain. Sec. 450. Everj' contract or policy of insurance hereafter made by any per- son or corporation organized under the laws of this state, or under those of' any other state or country, with and upon the life of a resident of this state, and delivered within this state, shall contain, unless specifically contracted between the insurer and the insured for tontine insurance, or for other term or paid-np insurance, a stipulation that when, after three full annual premiums shall have been paid on such policy, it shall cease or become void solely by the non-payment of any premium when due, its entire net reserve, by the Ameri- can experience mortality, and interest at four and one half per cent yearly, less any indebtedness to the company on such policy, shall be applied by such company as a single premium, at such company's published i-ates in force at the date of original policy, but at the age of tlie insured at time of lapse, either to the purchase of non-participating term insurance for the full amount insured by such policy, or upon the written application by the owner of such jiolicy, and the surrender thei'eof to such company within three months from such non-payment of premium, to the purchase of a non-participating paid-up policy payable at the time the original ])olicy would be payable if continued in force; both kinds of insurance to be subject to the same conditions, except as to pay- ment of premiums, as those of the original policy. It may be provided, how- ever, in such stipulation, that no part of such term insurance shall be due or payable, unless satisfactory proofs of death be furnished to the insuring com- pany within one year after death, and that, if death shall occur within three years after such non-payment of premium, and during such term of insurance, 111 §5 4.-.!, 452 CORr( RATIONS. [Drv. I, Part IV, tliere shall bo cleducted from the amount payable the sum of all the premiums that wouhl have become clue ou the original policy if it had continued in force. If the respi've on endowment policies be more than enonc"h to purchase tem- porary insurance, as aforesaid, to the end of the endowment term, the excess shall be applied to the purchase of pure endowment insurance, payable at the end of the term, if the insured be then living. If any life insui-anco coiTiora- tion 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 conformitj' wilh the provisions of this section, the right of such corporation or company to tiansact business in this state shall thereupon and thereby cease and terminate, and the insurance commissioner shall immediately revoke the certificate of such cor- poration or company authorizing it to do business in this state, and 2>nblish 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. [Amenilmeul, approved April 26, 1880; Amendment.^ [to Pol. Code) 1880, 01 {Ban. ed. 519); toolc effect sixlieth day after passage; repealed conjllcllng acts.] 451. Fraternal societies not insurance companies. Sec. 451. All associations or secret orders, and other benevolent or fraternal co-operative societies, incorporated or organized for the purpose of mutual pro- tection and relief of its 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 companies in the sense and meaning of the insurance laws of this state, and are exempt from the provisions of all existing insurance laws of this state. [New section, approved March 23, 1885; Statutes and Amendments 1885, 221.] The original section of this number related to payment of policy was repealed in ISSO, at the same time with section 452: See note under sec. 452. 452. Payment and cancellation o/jyoUcy. Section 452 relating to payment and caucella- Amendments 1880, 92 (Ban. ed. 520); took tion of policy and determination i)f net value of effect sixtieth day after passage, policy, was repealed by act of Apiil 2G, 1880; An Act to proo-ide for the incorporation of mutual insurance companies, for the insurance of life aii'l hedlth, (iiul aijaiiLst accidi'iils. [Approved April 2, 18UU; 18C0-6, 702.J This act was amended in 1880 as follows: Capital utock. Sec. 8. Every company formed or existing under this act shall have a capital stock of not less th;in one liundred thousand dollars. It shall not make any insurance nor transact any busin-iss until its capital stock sliall have been fully paid up in cash. The hoard of directors of the company, or a committee of the directors ap[)oiutod by the l)oard, shall, without delay, after organizing, proceed to obtain the subsciiptions required to comiilete the capital stoclv of the companj', and in obtaining such suliscription, or any sul>scriptions to capital stock afterwards anthorizo'l, must open books therefor, giving public notice thereof, if deemed necessary by them in some newspa;^er of general circulation in the county in which th'j principal olttce of t'.u; com- pany is located; such books shall, in either case, l)c kept open until the amount of capital stock required shall have been subscribed. If more than the requisitf. amoimt is subscribej corporaiions formed before ISTiJ.J lieturn of (juarautee nolesi. Sec. U. Any corporation formed or existing under this act may, at any time, return to the makers, their assigns or heirs, the guarantee notes iiell by said corporation; and from and after 8uch return, or the offer thereof, made in good faith, the corporation shall not be subject to any of the obligations or Imrdens imposed l)y Sictioa ten of said act upon said corporation and in favor of the makers of such notes. [.Ameudmeid, approved April 20, 1880: 1880, 230 [Ban. ed. 523); tool: iffccl from pa-iHa.ver to acquire reiliy: See ante, sec. 3G0, and note. Gu ods. G, 7. Eininenl d .mala — It is well settled that railroads for jjublic travel are public im:irovcmcnt3, in behalf of whicli the power of eminent domain may be legitimately (exercised: Is a pa R. R. Co. v. Napa Co., 30 Cal. 437; Storkton R. R. V. at II of Stocklon, 41 Id. 147; S. F, A. d-S. R. R. Co. V. Ca'dwell, 31 Id. 3G7; Contra Costa R. R. Co. v. Moss, 23 Id. 323; Fox V. W. P. R. R. Co., 31 II. 533; Ca'. P. R. R. Co. V. G. P. R. R. Co.. 47 Id. 510; S. P. R. R. Co. V. Raymond, 5:1 Id. 223; S. P. R. R. Co. V. Wilson, 40 Id. 300; .Sac. \'al. R. R. v. Mnf.xtl, 7 Id. 577; G. P. 11 R. v. Pearson, 35 Id." 247; C. P. R. R. v. Frlsble, 41 Id. 3-)3; Ccd. P. n. R. Co. V. Armstroin/, 43 Id. 85; B ektnm V. Sn-atoija R. //., 22 Am. Dec. G70, cal'.ed the leading American decision on tliia s.ibject in Stc'vart V. Supervisors of Poll: Co., 30 lavva, 9; A 'drld'i'' V. Tascumbla R. R. Co., 23 A n. Dec. 337; Glbsmv. Mason, 5Nev. 233; Sioan v. Will- j.Tfti--, 2 Mich. 427; Bro:vii. v. ileatlii, 34 Miss. 227; llullenheck v. //a/in, 2 Neb. 377; Cmcord R. R. Co. V. Oreeh/, 17 N. II. 47; B.ifah etc. R. R. Co. V. Bra'lnard, 9 N. Y. lOO'; BnfJT.ih etc. li. R, Co. V. Ferris, 23 Tex. 5S3. Such tion operating a private railroad for its own convenience in transporting coal from its mine, no passenger or other cars being provided for the use of the public, cannot condemn jirivata land for the purposes of such a railroad: People, V. Pi't.sbiir()h R. /,\ Co., 53 Cal. 094. Emiaeat domain: See the subject dis- cussed in Code Civ. Proc, sees. 1237-i2G3, and notes. C3an30ting -with and crossing other rail- roads: See constitutional right of railroad comiianics to intersect, connect with, or cross otlier railroads, art. 12, sec. 17, Const. Cal. 1G79. The right to compensation for the cross- ing of one railroad by auotlier may bo given by st'.Lut-: In re Lockport d- B. R. Co., Ti N. Y. 557; In re Boston d /I. T. R. R. Co., 70 Id. 04. Tiie use of the rails of another comi)auy: Jer- sey City etc. R. Go. v. Jersey City He. R. Co., 20 N. J. Kq. 01; Metropolitan R. Co. v. Qnincy R. Co., 12 Allen, 202; or the laying of tracks upon its location: Worcester d N. R. Co. v. Railroad Coni'rs, 113 Mass. 5G1, is a taking requiring compensation. If a railroad company whose road forms a j'.uiction with another road relies upon an em- ployee of the latter to attend to the switch, it is not relieved from responsibility for an acci- dent on the ground that it did not employ the sw'tc'nnan: Taylor v. Western P. R. Jt. Co., 45 CaL 323. UG Title III, Chap. IT.] ENUMERATION OF POWERS. § 466-468 Siibd. 7. Clianging route.— The power Church, 108 U. S. SI?. The railroatl com- to cliaiipe the h^catioii must bu strictly con- pany constructed an engine-house ami ma- Btrucd: Pierce on llailroads, 255. And the chine-shop on a parcel of land ailjoinin'^' tlie power lo cliange tlie route does not authorize a churcii. The use of these shops disturbctl tlio chdkngQoi thQtirmlvi: Attorney-Geiicrul w Went congregation, hy the hammering, whistling. Wis. li. U. Co., ?>'o Wis. 4G0; see sec. 4G7, pO'9G; Jfrmi v. McCaiujhan, 32 Miss. 7?. U. Co., 31 Id. 4G; and they may, by virtue 17. Cliangts made in the time tables must be of custom, make themselves common carriers advertised with the same publicity as the tables of passengers and freight beyond tiinir route: themselves: Sears v. Eastern li. Co., 14 Allen, Id.; Dnvis v. Kan. li. Co., 53 Mo. 317; Bass v. 433. Chicaijo R. Co. , 3G Wis. 450. 40 1 ; Wd!h v. Long Providing aocommodatlons — Passengers I. R. Co., 34 N. Y. G70; S. C, 32 Barb. 399; must be accommodated with seats: Da^.f v. and see sec. 483, post. The train nuist stop at Chicaijo etc. /!. Co., 3G Wis. 450; 8. C, 39 Id. the station to which the passenger's ticket runs 63G; 42 Id. r).J4; Willis v. Lonif I. R. Co., 34 and at which it is in the habit of stoi)ping: N. Y. G70; but it is a waiver of the breach of Cliira'io etc. R. R. Co. v. Fislier, G6 111. 152. the company's contract to furnish a seat if the Rules and regulations: See sec. 484, post. 482. Corporation to paij damages for refimal. Sec. 482. In case of refusal by such corporation or their agents so to take and transjiort any passengers or property, or to deliver the same, at the regular epijointed places, such corporation must pay to the party aggrieved all damages ■which are sustained thereby, with costs of suit. 483. ln^i(U room for passengers, etc. — Passengers on freight-cars. Sec. 483. Every railroad corporation must furnish, on the inside of its pas- senger-cars, sufficient room and accommodations for all passengers to whom tickets are sold for any one trip, and for all persons presenting tickets entitling thetn 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 passen- ger-cars. Accommodations to be furnished: See sec. freight train and paid first-class fare, is entitled 481. Hii'e. ;u)unn\. Grand Tnii,k R. /.'. Co., 58 It ii coiiipctrnt-. for a railroad to forbid passen- Me. 187. Generally, railway companies which gers to be c.u ried on freight trains: I lonstoii He. are in the habit of carrying passengers on their R. Co. V. M'lrite, 49 Tc.x. 31; Chica/fo etc. R. R. freiglit trains, cither without any rule to the Co. V. Uanddljdi, 53 III. 510; ///. R. R. Co. v. conti-ary or in violation of tiieir rules, are lia- Jokiison, 07 Id. 312; Eaton v. Delau^are etc. R. ble for their safety, subject only to the usual R. Co., 57 N. Y. 382. hazards of travel by sucli trains: Hazard v. A passenger who has no notice of any rnle to Chicago etc. R. R. Co., 1 Biss. 503; Jlotulon li. the contrary, and has entered the caboose of a Co. v. Moore, 49 Tex. 31. 484. Printed rules and regnhttums. Sec. 48-1. 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 platform of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of positive verbal instruc- tions or injunctions given to such passenger in person by any officer of the train, the corporation is not responsible fur damages for such injuries, unless the corporation failed to comply with the provisions of the preceding section. 121 §§ 485, 486 COr.PORATlONS. [Div. I, Part IV, The five preceding sections were drawn from see the note to Commomopalth v. Porocr, 41 Stats. 18G1, ()-2t, GJf), sees. 44-4(), 48. Am. Dec. 4G5, 471, and the Dote to //fill v. Rules and regulations. — For recent and Mcmphit etc. R. Co., l.j F»d. 11' p. 7u, 09. vnluablu a"iieh:3 \\\nn\ tlie suhjcct of regula- Rules and regulations by carriers of tioiia which railroad companies may make re- pasaengers, generally: See pout, sec. 2186, spectiug passengers and others not employees, and note. 485. Friwea — Damages. Sec. 485. Railroad corporations must make and maintain a gccd and sufRcien !; fence on eitber or both sides of their track and property. In case tuey do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic 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 paj'ing to the owner of the land through or along which their road is located au agreed price for making and maintaining such fence, or paying the cost of such fence with the award of damages allowed for the right of way for such railroad, are relieved and exonerated from all claims for damages arising out of the killing or maiming any animals of persona who thus fail to construct and maintain such fence; and the owners of such animals are responsible for any damage or loss which may accrue to such cor- poration from such animals being upon their railroad track, resulting from the non-construction of such fence, unless it is shown that such loss or damage occurred through the negligence or fault of the corporation, its officers, agents, or employees. Stats. 1761, 62.3, sec. 40. not fenced as is required by this section: TTynea Fencing railroad track — At one period of v. S. F. cfc N. P. R. R., 3 West Coast Ilep 99. the state's history railroad companies were not 101. For an instance of the lial)ility of the required to fence in their track: Fic/imond v. lessee of a railroad to respond in damages for S. V. U. R. Co., 18 Cal. 351. But the act of kdling cattle on unfenced porl ions of its road, 1861, svpra, upon which the above section of see Foit/aiuf v. S. P. R. Co., 51 Cal. 64,5. The the code is based, expressly provided that this owner of stock is not guilty of contributory should be done, and has been construed to nei^;ligence in turning stock into a field which mean by a sufficient fence, the standanl of lie Ihiows the I'ailroad had imt fenced. The lawful fences: Eiirljht v. .V. F. roduced a]ul still eject the traveler, oa tlie ground that the ticket is not good: Va>ikirk v. J^enn, R. R. Co., 70 Pa. St. 06. Yet wiiere money is ten- dered which is not sufficient, the conductor nia^' keep it to pay for the distance trav- eled, and sUll eject the passenger, although he tender full fare, after the train is stopped: Hoffman v. The D. c/nil o'V-- corporation-^, orr/anized under th" laivs of this tatp. or of aaj Mate or terrilori/ of the United SUi'ei of America, or any act of conijresa of the United S'ales of America, to do husi'ie-s.^ in l.'il^ state on eijnal terms. lApproved April 3, 16S0; USO, 21 (Ban. ed. 1U).1 Equal terms for
i;j pas^eixjers and freights on certain railroads; and to prevent extortion and unjust d<\scri/iiination t/iereon. [Approved April 1, 1878; 1877-«, 9G9.] This act, which repealed the previous act of similar character of April .3, 1S7G, Stats. 1S75-6, 783, was .superseded Ijy the operation of the constitution adopted iu May, ISTD. The following act of ISSO was intended to put the provisions of the constitution iu reference to the subject into operation. An Act to organize and define the powers of the hoard of railroad commissioner^. [Approved April IJ, 1880; 1880, io (Ban. e^ 207).] "Board of railroad commisKioners." SiXTioN I. The three jiersons elected railroad commissioners, pursuant to the pro\nsion3 of section twenty-two of article twelve of the constitution of this state, constitute, and shall be known iuid designated as, the " board of railroad commissioners of the state of Ca.ifornia." They shall have power tn elect one of their number president of said lioard, to appoint a secretary, to appoint a baiiiff, who shall perform the duties of j.mitor; also, to employ a stenographer, when- ever they may deem it expedient. Salarii'x — F.xjientieft. Si.r. 2. Tiie salary of each commissioner shall be four thousand dollars per annum; tlie sal- ary of the secretary shall be twenty-four hundred dollars per annum; the salary of the bailitf shall be twelve luiiidred dollars jier annum, sucii salarios to be pai 1 by the state of California in the .same manner as the salaries of state oiliecrs are pai I. The stenographer shall receive a rea- sonable compensation for his services, the amount to be fixed by tlic state lioaid ressagc, subscrip- tion to publieations upon the subject of transportation, and other incidental expenses, to be paid by the state; proi^ided, tiiat all moneys remaining uncxpendcil at the expiration of each fiscal year shall be leinrned to the state treasury'. Sai 1 board is furtlier authorized to expend not to exceed four hundred dollars for office furniture and fixtures, to lie paid by the st.ite. The state shall furnish said board with all necessary stationery and printing, upon requisitions signed by the president of said board. 125 fi 491 COEPORATICNS. Piv. I, I ,kt IV, Free paaxcs. Sec. 3. Said commissioners, and the persons in their official employment, shall, when »n the performance of their oLficial duties, have tlie ri^Iit to pass free of charge on all railroads, steam- ers, ships, vessels, and boats, and on all vehicles employed in or by any railroad or other transportation company engaged in the transportation of freight and passengers within this state. Duties of (ittorne)i-(jeneral and district attoriiei/. Sec. 4. It shall be the duty of the attoincy-general, and the district attorney in evory count j^, on request of said board, to institute? and prosecute, and to appear and to defend for said board, in any ami all suits and proceedings wliic!i they or cither of tliem shall be refjueste 1 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 exije[)t criminal business; pro- vided, that said 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 bo determined by the Btate boaid of examiners, and paid by the state. Location of office. Sec. 5. The office of said board shall be in the city of San Francisco. Said office shall always be open (legal holidays and non-judicial 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 suoli other jjlaces •within this state as may be expedient. The .sessions of said board shall be public, and when held at a place other than the office in the city of San Francisco, notice thereof shall be pub- lished once a week for two successive weeijs before the commencement of such session, in a newspaper published in the county wliore such session is to be held; and if no newspaper is pub- lished in such county, then in a newspaper published in an adjacent county. Such i)ublication to be paid by the state in the manner as other publications authorized by law are paid. Seal. Sec. C. 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 Commission, State ol 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. 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 m inner as courts of record. The summons shall direct the defendant to appear and answer within lifteen d:'y3 from the day of service. The necessary process issued by the board may be served in any counly in this state by the bailiff of the board, or by any person authorized to serve process of courts of record. Powers of officers. Sec. 8. The secretary of said board shall issue all process and notices required to be issued, and do and perform such other duties as the board may prescribe. The baiiilf shall preserve order during the sessions of said board, and shall have authority to make arrests for disturb- ances, lie shall also have authority, and it shall be his duty, to serve all process, orders, and notices issued by said board, when directed by the president, and make return of the same. Complaints and decisions to he in wrilintf. Sec. 0. All complaints before said board shall be in writing and under oath. All decisions of said board shall be given in writing, and t'lo grounds of the decisions shall be stated. A rec- ord of the proceedings of said board shall be kept, and the evidence of persons appearing before said board shall be preserved. Whr'H may sue. Sec. 10. Whenever the board shall render any-decision within the pnrviewand pursuant to the authority vested in said board by section twenty-two of article twelve of the constitution, Baid board, or the person, copartnersliip, comp.iny, or corporation making the comi)laint upon which such decision was rendered, is authorized to sue upon such decision in any court of com- petent jurisdiction in this state. JRates. Sec. 11. Whenever said board, in the discharge of its duties, shall establish or adopt rates of charges for the transportation of passengers and freight, pursuant to the provisions of the constitution, said board shall servo a printed schedule of such rates, and of any changes that may be made in such rates, upon the pers(m, 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 of the same to be posted in all its otEces, station-houses, warehouses, and landing-offices affected by such rates, or change of rates, in suc!i manner as to be accessible to public inspection during usual business hours. Said buarJ 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, lie a corporation, such service niay be made upon the president, vice-president, secretary, or managing agent thereof, and if a copartnership, upon any partner thereof. The rates of charges cstablisbed or adopted by said board, pursuant to the constitution and this act, shall go into force and effect on the twentieth day after service of said schedule of rates, or changes in rates, upon the person, copartnership, company, or corporation affected thereby, as hereinbefore provided. Jurisdiction^ Sec. 12. When jurisdiction is, by the constitution, conferred on the board of railroad com- missionera, jaUl the mpAns necessary to carry it into nfCect are also coaferred on said board, and 126 Trri.E rV.] STREET-RAILROAD CORPORATIONS. § 497 when in the exercise of jurisdiction within the purview of the authority conferred on said board by the constitution the coiirr.e of proceeiHng he not specifically pointed out, any suitable process or mode of proc(e~ Cal. IGO, 1G7. Under tius sec- lations, or from municipal taxation: San Joxi tion the | ermission may bo granted to indi- v. S. J. '. R. T, R. nies denominates companies which may be Co., 49 Id. 517; and cannot ac(]uire or hold formed under its provisions "joint stock corn- lands or the possessory right thereto, or any panics," still the act siiows tliat they are cor- interest therein, beyond the easement or right porations: Ulaitchard v. Kmdl, 44 Id. 440. of way over the same: Wood v. Truckee T. Co., Turnpike roads are highways, distinguishable 24 Id. 474. All the interest the company has from highways in general simply in the manner in the roa. And their Where an act authorizes the construction of a action in granting such a license is not review- toll-bridge and the collection of such tolls aa able by certiorari except for excess or want of the sujiervisors shall fix, with a proviso that juiisdictiou: Jlenshato v. Bntte Co., 19 Id. 150. the legislature may modify or change the rates, Tiiat a new bridge may be located within a the board of supervisors ma> alter the rates mile of an old bridge, where public convenience wliich they have once fixed, subject to tho requires it, see ]Vanfjh v. Chauncey, 13 Id. 11; supervisory control of the legislature: Stanis- Fall V. Slitter Co., 21 Id. 237; Norris v. Farm- lau.< Br!il Ulots cast at said election bear the words " For pul)lic wa!;er-w.)rk3," then the coin nju coaaoil. or b.>arj of trustees, shall have power, and are hereby authorized, to is=5ue bond^ of said m.uiicipal cor- poration, payable on the first day of January, nineteen hundred and five, unless previously redeemed as lierein provided, to au amount not excee.ling one hundred thousan I d >il-irs (S13D, - COO). Said bonds shall bear interest at the rate of six (G) per ctut per annum, payable se:ni- annually, on the first day of -January and the first day of July of each year. Said principal and interest shall be made payable at t'.ie o'.S:;e of t'ae treasurer of said municipal corpTi-at.on. &ai.l iionds shall be signed by the presiding o licer of said common council, or board of trustees, of said city, and the tre;i3urer thereof, and cjunt !rsigjed by the clerk. The coupons of said bonds shall be numbered consecutively, and sigaed by the city treasurer. 136 TltLiF Vin, j WATER AND CANAL CORPORATIONS. § 548 Sinking fund. oEC. G. For the purposes of liqtii.lating the saii^l bonds, the common council, or hoard of trustees, is hereby authorized to levy, annually, a special tix from and after the year of the issue of said bunds, sulficient to pay tiie interest on sairl indebtedness as it falls duo, and also to constitute a sinking fund for the payment of the principal amount of said bonds within twenty years af ler the issuance thereof. Sale of honih. Sec. 7. Said bonds shall be sold or exclianged to raise money as reqtiired in the purchase, construction, or repairs of said work. h'a'er fund. Sec. 8. The money received from the sale of said water shall be deposited with the city treasurer and kept in a separate fund, to be known as the water fund, which fond is to be used for all 2iurposfS connected with said water-%\ orks. Treamirer to ad rertise for redempfion of honda. Sec. 9. Whenever there is in said water fund not less than five thousand dollars not required for the care, management, or repairs of .said public water-works, said common council, or board of trustees, shall require the trea.surtr to puldish notice in a newspaper of general circulation in Baid county, for tlie space of one month, that a certain sum of money (naming it) is in .«aid fund for the redemption of said bonds, and tliat ho will receive bids for tlie redemptinn of the same at not more tlian their par value, with interest due, until a day named, which shall be not less than one month after the last publication of the notice aforesaid. Bohds not to he redeemed above par value. Sec. 10. On the day named the bids .shall be opened by the treasurer and presiding officer of Baid board, and the bitls offering to surremler the Iwnds at tiie lowest sums, not more than their par value and interest due, shall be accepteal corporations to fix neater ratex. Seciion 1. Tlie board of supervisors, town council, board of aldermen, or other legislative body of an}' city and county, city, or town, are hereby antliorized an, etc. Si:c. 2. The boaid of sujiervisors, town council, board of aldermen, or other legislative body of any city and county, city, or town, are hercliy auihorized, and it is hereby marinklo the streets: L. A. \V. Co. v, Los Angeles, 55 Cal. 170. For (lec'sions relating to the Spring Valley water- works, created under the act of 1858, and the new constitution, see S. V. IT. W. v. San Francisco, 52 Cal. Ill; Same v. Bnpnt, Id. 132; San Francisco v. S. V. W. W., 53 Id. 603, and infra. Duty to furnish "water to prisom, hos- pitals, poor-houses, and schools at reasonable rates, and for the extinguishment of fires, flushing of sewers, and watering of parks free: See-S. V. W. W. v. San Frnndsco, 52 Cal. Ill; San Diego IV. Co. v. San Di<^go,J>0 Id. 517; and the relieving of the Spring Valley water- works from the duty to furnish water free for any pur[iose: See .S'. V. IT. IV. v. SupTrlsois, 7 Pac. C. L. J. G14; .s', F. I\ II'. Factory v. Brickirclel, GO Cal. 160; S. V. W. W. v. San Francisco, 61 Id. 18. 138 Title VIIL] WATER AND CANAL CORPORATIONS. §5 549-552 549. Duties of water corporations. Sec. 54^. All corporations formed to supply water to cities or towns must furnish pure fresh water to the inhabitants thereof, for family uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor; and must furnish water to the extent of their means, in case of fire or other g-reat necessity, free of charge. The rates to be charged for water must be determined by commissioners, to be selected as fol- lows: two by the city and county, or city or town authorities, or when there are no city or town authorities, by the board of supervisors of the county, and two by the water company; and in case a majority cannot agree to the valua- tion, the four commissioners must choose a fifth commissioner; if they cannot agree upon a fifth, then the county judge of the county must appoint such fifth person. The decision of the majority of the commissioners shall determine the rates to be charged for water for one year, and until new rates are established. 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. \ Amendment , approved Jilarck 30, 1874; Amendments 1873—4, 210; took ejfect July 1, 1874.] Stats. 1S58, 219, sec. 4. 550. ItUjld to use streets, ways, alleys, and roads. Sec. 550. Any corporation created under the provisions of this part, for the purposes named in this title, subject to the reasonable direction of the board of supervisors, or city or town authorities, as to the mode and manner of using such right of way, may use so much of the streets, ways, and alleys in any town, city, or city and county, or any public road therein, as may be necessary for laying pipes for conducting water into any such town, city, or city and county, or through or into any part thereof. Stats. ISGS, 'J'JO, sec. 5. 551. To build and keep bridges in repair. Sec. 551. Every water or canal corporation must construct and keep in good repair, at all times, for public use, across their canal, flume, or water-pipe, all of the bridges that the board of supervisors of the county in which such canal is situated may require, the bridges being on the lines of public high- ways and necessary for public uses in connection with such highways; and all water-works must be so laid and constructed as not to obstruct public highways. S til is. 1SG2, 041,800. 4. Keeping woiks in repair: See subject discussed in note to sec. 1410. 552. Right to rcater to irrigate lands sold by water or irrigating company. Sec. 552. Whenever any corporation, organized under the laws of this state, furnishes water to irrigate lands which said corpoi'ation has sold, the right to the flow and use of said water is and shall remain a perpetual easement to the land so sold, at such rates and terms as may be established by said corporation in pursuance of law. And whenever any person who is cultivating land on the line and within the flow of any ditch owned by such corporation, has been furnished water by it with which to irrigate his land, such person shall be entitled to the continued use of said water, upon the same terms as those who have purchased their land of the corporation. [New section, ajiproved April 3, 187G; Amoidments 1875-6, 77; took cfffctfrom paiisagc.\ 139 § 552 CORPORATIONS. [Div. I, Part IV, An Act to rerjidafp and control the sale, rental, and diitrihidion 0/ appropncctcd vmterin thU utate, other (hail iii any city, city and connti/, or town therein, and to secure the r'ujhta of way for the conveyance o/nuch water to the placen 0/ itxe. [Approved March 12, 1383; 1885, 95.] Use of appropriated water pullic. Skction 1. Tlie use of all water now appropriated, or that may hereafter be appropriated, for irrigation, sale, rental, or distribution, is a public use, and the right to collect rates or com- pensation for use of such water is a franchise, and except when so furnished to any city, city any county, or town, or the inhabitants thereof, shall be regulated and controlled in the counties of this state by the several boards of supervisors thereof, in the manner prescribed iu this act. Supervisors may fx rales. Sec. 2. The several boards of supervisors of this state, on petition and notice as provided ia section three of this act, are hereby authorized and required to fix and regulate the maxiuiuna rates at which any person, conipanj', association, or corporation, having or to have appropriated water for sale, rental, or distribution iu each of such counties, may and shall sell, rent, or dis- tribute the same. Petition for fxinrj rates. Sec. 3. \Vbenever a petition of not less than twenty-five inhabitants, who are taxpayers of any county of this state, shall, in writing, petition the board of supervisors thereof, to be filed with the clerk of said board, to regulate and control the rates and compensation to bo collected by any person, company, association, or corporation, for the sale, rental, or distribution of any appropriated water, to any of the iuhabitanis of such county, and shall in such petition specify the persons, companies, associations, or corporations, or any one or more of them, whoso water rates are therein petitioned to be regulated or controlled, the clerk of such board shall immedi- ately cause such petition, together with a notice of the time and place of hearing thereof, to bo published in oue or more newspapers published in such county; and if no newspaper be pub- lished therein, then sliall cause copies of such petition and notice to be posted in not less than three public places in sucli counties, and such publication and notice shall be for not less tlian four weeks next before the hearing of said petition by said board; sucli notice 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 tiiereof, for the hearing of said peti- tion, which shall impart notice to all such persons, companies, associations, and corporations mentioned in such petition, and all persons interesteil in the matters of such petition and notice. Such board naay 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. HeariiKj of petition — Value of water-irorls. 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 siiall be so regulated and controlled; and shall in like manner estimate as to each of such persons, companies, associa- tions, and corporations, their annual reasonable expenses, including the cost of repairs, manage- ment, and operating such works; and, for the purpose of such ascertainment, may re(piire the attendance of persons 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 accounts, by attachments, if within their respective counties Mules to be observed in fximj rates. Sec. 5. In the regulation and control of such water rates for each of such persons, companies, associations, and corporations, such board of sup^Tvisors may establish dilTerent rates at which water may and shall be sold, rented, or distributed, as the case may be; and may also establish dilTerent rates and compensation for such water so to hi furnished for the several different uses, such as miuiiig, irrigating, mechanical, manufacturing, and domestic, for whicli sucli water shall be supplied to sucii inhabitants, but such rates as to each class shall be equal and uniform. Said boards of supervisors, iu 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 funushing such water to such inhabitants sliall hi not less than six nor more than eighteea per cent upim the said value of the canals, ditches, flames, chutes, and all other property actu- ally used an. I usefid to the appropriation and furnisliing of such water of each of such i);'rson3, comijanies, associations, and corporations; but in estimating such net receipts and profits, the cost of any exteusions, enlargements, or other permanent improvements of such water rights or water-works shall not be included as part of tlie said expenses of management, repairs, and operating of such works, but when accomplished, may and shall be included in the present cost and cash value of such work. In fixing siid rates, within the limits aforesaid, at which water shall bo so furnished as to each of such persons, comi)auies, associations, and corporations, each of said boar I of sii[)ervisor3 may likewise take iato estimation any and all other f;icts, circum- stances, and couditions pertinent thereto, to the end and purpose that said rates shall be equal, reasonable, and just, both to such persons, companies, associations, and corporations, and to said inhabitants. The said rates, when so fixed by such board, shall be binding and conclusive for not less than oue year next after their establishment, and until established anew or abrogated by such board of supervisors, as hereinafter provi led. And until such rates shall be so estab- lished, or after they shall have been abrogated by sach board of supervisors as iu this act 140 Title VIII] WATER AND CANAL CORPORATIONS. §552 provided, the actual rates established and collected by each of the persons, companies, associa* tious, and corporations now furuiahing, or that sliall liereafter furnish, ajipropriatod waters for Bale, rental, or ilistrihulion to the iniiabitants of any of the counties of this state, shall be deemed and accepted as the legally established rates thereof. CliaiKjini) rcUe^. Sec. 0. 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 wliole or in i)art by such board, to take ed'oct not less than one j'car next after sucli lirst establishment, but sul)ject to said lim- itation (;f one year, to take effect inimetliatcly in the following manner: Upon the written peti- tion of inhabitants as hereinbefore provided, or upon the written petition of any of tiie persons, conijianies, associations, or corporations, tlie rates and compensations of whose appropriated waters have already been fixed and regulated, and are still sul)ject to such regulation by any board of supervisors of this state, as in this act provided; and upon tiie like publication or posting of such petition and notice, and for tlic like pcrioil of time as hereinbefore provided, Buch board of supervisors shall proceed anew, in the manner Iiereinbefore ]irovided, to fix and establisli the water rates for such person, comi)any, association, or corporation, or any number of them, in the same manner as if sucli rates liad not lieeii previously establislie CORPOKATIONS. 557. Time- of corporate existence. Sec. 557. Corporation organized for the purpose of acquiring lands in large tracts, paying off incumbrances thereon, improving and subdividing them into homestead lots or parcels, and distributing them among the shareholders, and for the accumulation of a fund for such purposes, are known as homestead-cor- porations, and must not have a-coi'porate existence for a longer period than ten years. 558. By-laws to specify time andnmount of payment of installments, etc. Sec. 558. Such corporations must specify in their by-laws the times when the installments of the capital stock are payable, the amount thereof, and the fines, penalties, or forfeitures incurred in case of default. A printed copy of the articles of incorporation and by-laws must be furnished io any shareholder on demand. 559. Advertisement and sale of delinquent and forfeited shares. Sec. 559, "Whenever any shares of stock are declared forfeited, by resolution of the board of directors, the directors may advertise the same for sale, giving the name of the subscriber and the number of shares, by notice of not less than three weeks, published at least once a week in a newspaper of general circula- tion in the city, town, or county where the principal place of business of such corporation is located. Such sale must be made at auction, under the direction of the secretary of the company. The corporation may be a bidder, and the shares must be disposed of to the highest bidder for cash. No defect, infor- mality, or irregularity in the proceedings respecting the sale invalidates it, if notice is given as herein provided. After the sale is made, the secretary must, on receipt of the purchase money, transfer to the purchaser the shares sold, and after deducting from the proceeds of such sale all installments then due, and all expenses and charges of sale, must hold the residue subject to the order of the delinquent subscriber. 560. 31ay borrow and loan funds. Sec. 5G0. Homestead corporations may^ borrow money for the purposes of the corpoi'ation, not exceeding at any one time one fourth of the aggregate amount of the shares or parts of shares actually paid in, and the income thereof; no greater rate of interest must be paid therefor than twelve per cent per annum. For the pui-pose of completing the purchase of lands intended to be divided and distributed, they may borrow on the security of their shares on the land thus purchased, or that owned by the corporation at the time of procuring the loan, any sum of money which, together with the interest contracted to become due thereon, will not exceed ninety per cent of the unpaid amount subscribed by the shareholders; but no loan must be made to the corporation for a term extending beyond that of its existence. 561. Minor children, wards, and married women may own stock. Sec. 5G1. Such shares of stock in homestead corporations as may be acquired by children, the cost of which, and the deposits and assessments on which, are paid from the personal earnings of the children, or with gifts from persons other 142 Title IX.] HOMESTEAD CORPORA'nCNS. §§ 5G2-535 than their male parents, may be taken and held for them by their parents or guardians. Married women may hold such shares as they acquire with their personal earnings, or those of their children, voluntarily bestowed therefor, or from property bequeathed or given to them by persons other than their hus- bands. 562. ForfeUurefor speculating in or owning lands exceeding two hundred thou- sand dollars. Sec. 5G2. Homestead corporations must not purchase and sell, or otherwise acquire and dispose of, real property, or any interest therein, or any personal property, for the sole purpose of speculation or profit. Nor must any such corporation at any one time own or hold, in trust or otherwise, for its purposes, real property, or any interest therein, which in the aggregate exceeds in cash value the sum of two hundred thousand dollars. For any violation of the pro- visions of this section corporations forfeit their corporate rights and powers. On the application of any citizen to a court of competent jurisdiction, such for- feiture may be adjudged, and the judgment carries with it costs of the proceed- ings. 563. Mlien corporation is terminated, and how. Sec. 5G3. Except for the purpose of winding up and settling its affairs, every homestead corporation must terminate at the expiration of the time fixed for its existence in the articles of incoi'poration, or when dissolved as provided in this part. No dividend of funds must be made on termination of its corporate existence until its debts and liabilities are paid; and upon the final settlement of the affairs of the coi^poration, or upon the termination of its corporate exist- ence, the directors, in such manner as they may determine, must divide its property among its shareholders in proportion to their respective interests, or, upon the application of a majority in interest of the stockholders, must sell and dispose of any or all of the real estate of the corporation upon such terms as may bo most conducive to the interests of all the stockholders, and must convey the same to the purchaser, and distribute the proceeds among the shareholders, or may at anj' time, when best for the interests of all the shareholders, cause the lands of the corporation to be subdivided into lots and distributed, by sale for premiums, at auction or otherwise, among the shareholders. 564. Payment o/ premiums. Sec. 5G4. Such premiums on lots may be made payable at the time they are bid off, and, if not so paid on any lot of land, the directors may immediately offer the same for sale again. If made payable at a future day, and any share holder fails to pay his bid on the day the same is made due and payable, the directors may advertise and sell the shares of stock representing the lots of land on which the premiums remain unpaid, in the manner provided in the by-laws for the sale of shares on account of delinquent installments and pre- miums. 665. Annual report to be published. Sec. 505. The actual financial condition of all homestead corporations must, by the directors thereof, be published annually in the [a] newspaper published at the principal place of business of the corporation, for four weeks, if pub- lished in a weekly, and two weeks, if published in a daily. The statement must be made up to the end of each year, and must be verified by the oath of the president and secretary, showing the items of property and liabilities. 143 §§ 566-573 CORrORATIONS. [Drvr. I, Paht 17. 563. Publication in certain cases. Sec. 50G. In any case in which a publication is required, and no newspaper is published at the principal place of business, the publication may be made in a paper published in an adjoining county. An Art .mpplemenfary fo an act entitled "An act to authorize the formation of corporations to provide Lite inembrrs thereof with homeMeaila, or lots of (and suitable for homesteads," approved May twentieth, eighteen hundred and sixty-on£, [Approved March 23, 1874; 1873-4, 625.] 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 coulinuc its corporate existence for ten years from the date of filing its articles of incorporation, upon com- plying with the provisions of this act. How existence continued. Sec. 2. Any such corporation existing on the first day of January, eighteen hundred and Beventy-fonr, may, at any time before its period of existence, as stated in its articles of incor- poration, shall expire, continue its existence, as stated in section one of tliis act, by a majority vote cf 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 t!iem and their secretary, when the election is made by their vote, or upon the writ- ten consent of the stockholders or members, or a certificate of the proceedings of the meeting of the stockholders or members, when such election is made at any such meeting, signed by the chairman and secretary of the meeting and a majority of the directors, must be file 1 in the office of the clerk of the county where the original articles of incorporation are filed, and a certified copy thereof must be filed in the office of the secretary of state; and thereafter tlie corporation shail continue its existence under 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 passage. TITLE X. SAYINGS AND LOAN CORPORATIONS. 571. May loan money — On what terms, how, and to whom, and how long. Sec. 571. Corporations organized for the purpose of accumulating and loan- ing the funds of their members, stockholders, and depositors, may loan and invest the funds thereof, receive deposits of money, loan, invest, and collect the same, with interest, and may repay depositors with or without interest. No such corporation mhst loan money, except on adequate security on real or personal property, and such loan must not be for a longer period than six years. Stats. 18G2, 199, sees. 4, 5; 1864, 158, sec. 2. of receiving deposits and negotiating loans, are Banks cannot l)e created except under gen- valid as long as they do not issue pajier to cir- eral laws: Const. Cal., art. 12, sec. 5. Thatasso- ulate as money, see Bank of Sonoma v. Fair- ciations called "banks," formed for the purpose hanks, 52 Cal. 19o. 572. Capilal stock, and rights and privileges thereof. Sec. 572. "When savings and loan corporations have a capital stock specified in their articles of incorporation, certificates of the ownership of shares may be issued; and the rights and privileges to be accorded to, and the obligations to be imposed upon, such capital stock, as distinct from those of depositors, must be fixed and defined, either in the articles of incorporation or in the ty-laws. Stats. 18G2, 203, sec. 17. of a savings bank, recognized as valiilly incor- Validity of reinoorporation under the code, pirated: Peoples. Perrin, 56 Cal. 345. 573. No dividend except from su7ylas profits. Seo. 573. The directors of savings and loan corporations may, at such times Bpiid in such manner as the by-laws prescribe, declare and pay dividends of so 144 Title X.] SAVINGS AND LOAN CORPORATIONS. §§ 5^4-578 much of the profits of the corporation, and of the interest arising from the capital stock and deposits, as may be appropriated for that purpose under the by-laws or under their agreements with depositors. The directors must not contract any debt or liability against the corporation for any purpose whatever, €xcept for deposits. The capital stock and the assets of the corporation are a security to depositors and stockholders, depositors having the priority of secu- rity over the stockholders, but the by-laws may provide that the same security shall extend to deposits made by stockholders. Stats. 1870, 130, sec. 1; 18G2, 199, sees. 10, 22. 574. Property which mmj he owned, and how dii^osed of. Sec. 574. Savings and loan corporations may purchase, hold, and convey real and personal property, as follows: 1. The lot and building in which the business of the corporation is carried on, the cost of which must not exceed one hundred thousand dollars; except, on a vote of two thirds of the stockholders, tbe corporation may increase the sum to an amount not exceeding two hundred and fift}- thousand dollars; 2. Such as may have been mortgaged, pledged, or conveyed to it in trust, focr its benefit in good faith, for money loaned in pursuance of the regular busiueas; of the corporation; 3. Such as may have been purchased at sales under pledges, mortgages, or- deeds of trust made for its benefit, for money so loaned, and such as may bo conveyed to it by borrowers in satisfaction and dischai'ge of loans made thereon ; 4. No such corporation must purchase, hold, or convey real estate in any other case or for any other purpose; and all real estate described in subdivision three of this section must be sold by the corporation within five years after the title thereto is vested in it by purchase or otherwise; 5. No corporation must purchase, own, or sell personal property, except such as may be requisite for its immediate accommodation for the convenient trans- action of its business, mortgages on real estate, bonds, securities, or evidences of indebtedness, public or private, gold and silver bullion, and United States mint certificates of ascertained value, and evidences of debt issued by the United States; G. No corporation must purchase, hold, or convey bonds, securities, or evi- dences of indebtedness, public or private, except bonds of the United States, of the state of California, and of the counties, cities, or cities and counties, or towns of the state of California, unless such corporation has a capital stock or reserved fund paid in of not less than throe hundred thousand dollars. [Ameud- menl, approved March 1%, 1874; AmendinenlslSl'i-A, 273; took effect from pasiiaf}e.\ 575. Married women and minors may oion atock in their own right. Sec. 575. Married Avomen and min(/rs may, in their own rights-make- and draw deposits and draw dividends, and give valid receipts therefor. Stata. 18G2, 199, sees. 14, 15; 18G4, 138, sec. 4; IS70, 1.32, sees. 2, 3. 576. Jlfay isme transferable certificates of deposit. Sec. 57G. Savings and loan corporations may issue general certificates of deposit, which are transferable, as in other cases, by indorsement and delivery; may issue, when requested by the depositor, special certificates, acknowledging- the deposit by the person therein named of a specified sum of money, and expressly providing on the face of such certificate that the sum so deposited and therein named may be transferred only on the books of the corporation; pay- Crv. Code— 10 145 §§577-579 COEPOKATICNS. [Div. I, Part IV, meat thereafter made by the corporation to the depositor named in such certifi- cate, or to his assignee named upon the books of the corporation, or, in case of death, to the legal representative of such person, of the sum for which such special certificate was issued, discharges the corporation from all further liability on account of the money so paid. Stat3. 1807-8, 459, sec. 1. 577. To provide reserve fund for the payment of losses. Seo. 577. Savings and loan corporations may pi-escribe by their by-laws the time and conditions on which repayment is to be made to depositors; but when- ever there is any call by depositors for repayment of a greater amount than the coi-poration may have disposable for that parposo, the directors or officers thereof must not make any new loans or investments of the funds of the depositors, or of the earnings thereof, until such excess of call has ceased. The dii'ectors of any such corporation having no capital stock must retain, on each dividend day, at least five per cent of the net profits of the corporation, to constitute a reserve fund, which must be invested in the same manner as other funds of the corpora- tion, and must be used towards paying any losses which the corporation may sustain in pursuing its lavvfvil business. The corporation may provide by its by-laws for the disjiosal of any excess in tlie reserve fund over one hundred thousand dollars, and the final disposal, upon the dissolution of the corporation, iof the reserve fund, or of the remainder thereof, after payment of losses. Stats. 1SG2, 201, sec. 11; 1870. 523, 822. "573. Prohibition on director and officer, and what vacates office. Sec. 578. No director or officer of any savings and loan corjDoration must, directly or indirectly, for himself or as the partner or agent of others, borrow any of the deposits or other funds of such corporation, nor must he become an indorser or suretj'' for loans to others, nor in any manner be an obligor for moneys borrowed of or loaned hj such corporation. The office of any director or officer who acts in contravention of the provisions of this section immediately there- upon becomes vacant. '573. Difinition of phrase '^create debts." Si.c. 579. Receiving dejjosits, issuing certificates of deposit, checks, and bills of exchange, and the like, in the transaction of the business of savings and loan corporations, must not be construed to be the creation of debts within the mean- ing of the phrase " create debts," in section three hundred and nine. An Act to authorize the hiisbrind or wife or next of kin of a deceased person to colh-rt and receiv6 of any savings bank any deposit in such bank, when the same does not exceed the sum of three- hundred dollars. (Approved February 18, 137-1; 1373-4, 132.] Collect deposit. Section 1. The surviving husband or wife of any deceased person, or if no Imsband or wife be living, then tlie next of kin of sach -G to from collecting unpaid installments. Judge section ?>1\. Sawyer, in 8 Saw. 3G3, .'^07, gives an intcrest- r>I-Diu2 corporation different from other ing account of the mode of forming a mining corporations: See the case of In re South Mt. corporation. 583. Directors to file cerlificales of proceedings in offices of county clerks and secretary of state. Sec. 585. When the pitblication provided for in tlie preceding section baa been completed, the directors of the corporation must file in the oflSces of the clerks of the counties from and to wliich such cLange has been made, and in the office of the secretary of state, certified copies of the written consent of the stockholders to such change, and of the notice of such change, and proof of publication; also a certificate that the proposed removal has taken place; and thereafter the principal place of business of the corporation is at the place to which it is removed. Suts. 1SG3-4, 7G, sec. 1. 585. Transfer agencies. Sec. 58G. Any corporation organized in this state for the purpose of mining, or cai'rying on mining operations in or without this state, may establish and maintain agencies in other states of the United States, for the transfer and issu- ing of their stock; and a transfer or issue of the same at any such transfer agency, in accordance with tbe provisions of its by-laws, is valid and binding as fully and effectuall}' for all purposes as if niade upon the books of such cor- poration at its principal office within this state. The agencies must be governed by the b3'-laws and tbe directors of the corporation. Stats. 1SG3-4, 76, sec. 2. 587. Stock vssued at transfer agencies. Sue. 587. All stock of any such corporation, issued at a transfer agency, must be signed by the president and secretary of the coi'poration, and counter- signed at the time of its issue by the agent having char jg of the transfer agency. No stock must be issued at a trausi'er agency uulijss Ibe cerLificato of stock, in lieu of which the same is issued, is at the time surrendered for cancellatiou. Stats. 1SG3-4, 42!), sees. 1, .3. An Act supplemental to an art entitled "An net ronrfrniiifj rorporatiomf," passed th^twenty-sfcond of April, one thonKaml I'iijfil kundrel andjt/ty. _ , [Approved JUrcU 21, 1872; 1871-2, 4W.J Petition for removal of ofircrK. Skction I. On |)etiti>.n of the majority of tiie sliarcholders of any corporation formed for the purposi: of mining to tin; county judge of tlic county where said corporation has its principal Elaca of liusiness, veriliod !)y tho si ^ners, to the elfect t'i:it they are s^-verally tiic lioldcrs on tli© ooks of the company of the nundicr of sliarcsset opposite tlijir signatures to the foregoing pcti- tind tlie object of sueli expendi- tures, and also all transfers of stock. All books and papers shall at all times, during l)U3iues3 hours, be open to the inspection of any bona lide stockholder; and if any stockholder shall at any time so request, it shall be the duty of the secretary to attend at the oflice of said company at least one hour in the day out of i-egular business lionrs, and exhibit sueli books and papers of the company as such stock'.iolder may desire, who shall bo entitled to b3 accompanied by ancx;>ert; and he shall also be entitled to make copies or extracts from any such books or papers. It shall be the duty of tlic directors, on tlu first Mo.iday of each and every month, to cause to bo made an itemized account or balance-sheet for the previous month, embracing a full and complete Btatemcnt of all disbursements and receipts, showing from what sources such receipts were derivcil, 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 ti iie, and for what the same were incurred, and tlie balance of money, if any, on hand. Such account or balance-sheet sh."ll be verified under oath by the president and secretary, and posted in some conspicuous place in the office of the company. It shall be the duty of the superintendent, on tlie fir>t Monday of each month, to file with the secretary an itemized account, verified under oath, showing all receipts and disbursements made liy him for the previous month, ami for what said disbursements were made. It sliall also be the duty of the superintendent to file with tlie secretary a weekly statement, under oath, showing the num- ber of men empL)ye 1 under him and for what purpose, and the rate of wages paid to each one. He shall attach to such account u full and complete report, under oath, of tlie work done in said miu", the amount of ore extracted, from what part of the mine taken, the amount sent to mill for reduction, its assay value, the amount of bullion received, the amount of bullion shipped to the ofliee of the company or cl-icwhere, 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 miiierabbearing quartz made in said mine, whether by boring, drifting, sinking, or otherwise, to rcthcr with the assay value thereof. All accounts, reports, and corre- spondence from the superintendent shall be kept in some conspicuous place in the office of said coni[)any, and be open to the inspection of all stockholders. [Amendment, approved April 2.3, 1880; Amendmenln 1830, 134 (Ban. ed. 400); took effect from passage; repealed conjlictivg acta,} 148 Title XII.] RELiaiOUS, SOCIAL, AND SEXEVOLENT ASSOCIATIONS. § 593 Exannnation of fjromi'fs. Sec. '2. Any boua fide stockholder of a coiT;)oration formed under the la\vs of this state for the purpose of mining bhall bo entitled to visit, acuomjanied by his expeit, and examine tho mine o:- mines owned by such corpoiatiim, and every part thereof, at any time he may Sf-c fit to make sucli visit and examination; anart thereof. In case of the failure or refusal of the superintendent to obey such order, sucIi stockholder sliall be entitled to recover in any court of com[)eteut jurisdiction, against said corporation, the sum of one thousand dollars and traveling cxfjenses to and from said mine as liquidated damages, together wIlIi costs of suit. In case of such refusal, it sliall be the duty of the directors of sucli corporation forthwith tu remove the oUiccr so refusing, and thereafter he shall not be employed directly or indirectly by such corporation, and no salary shall bo paid to him. [AmeHprov''d Aj/ril 23, ISGO; Amendments ISSO, 13o (Dau. ed, 400); took eil'eet froin panscvje; re/iea'ed cotijlictlmj acU.^ Sec. 4. All acts in conflict v.'iih the provisions of this act are hereby repealed. TIa.'.'s aot ia cousttutional: Iletddl v. Ep- by the court as to the form of complaint under $teiii, (J3 Cal. 184, wherein siiggestions are made this statute. An Act for the further protertion of stockho'ders in miiiiufj companies, [Approved April 2J, 1880; 1380. Vol (Ban. ed. 3'J8).] Directorn vol to ftell, etc., unless ticn third-* of eapitnt .ttock consent. Sr.CTioN 1. It shall not be lawful f.ir tlie i> rectors of anj' mhiing corporation to sell, lease, mortgage, oi- otherwise dis[iose of the whole or any part of the mining ground owned or held by Buch corjioration, nor to pnrc'.iasc or obtain, in any way, any additional mining ground, unless BUch act bo ratx'fied by the lioldersof at least two thinls of the canital stock of such corjxiration. Such ratilication may be made cither in v^'riting. signed and acknowledged by sucli stockholders, or by reso'.ut.ou, duly passed at a stockholders' meeting called for that purpose. Stock to III' ill 7t(ime of real owner or trustee. Sec. '2. All stock in each and every mining corporation in this state sliall stand in the books of said comjiany, in all cases, in tho names of tho real owners of sucli stock, or in the name of the trustees of such real owners; Ijut in every case where such stick ohall stand in tho name of a trustee, the party for whom iio indds suc'.i stock in trust shall be designated upon said books, and also in the body of the certificate of such stock. Boots, vhen to close — Stock, hoiu vott'd. Si;c. 3. It shall not be lawful for any such corporation, or the secretary thereof, to close the books of saiil corporation more than two days prior to the day of any election. At such cleetioQ the stock of said corporation shall be voted by the bona fide owners thereof, as shown by tho books of sai 1 cor[)oration, unless tlie certificate of stock, da'y indorsed, lie produced at such election, in which case said certificates shaU be deemed the highest evidence of ownership, and the ho.iler thereof shall lie entitled to vote t!ie same. Sec. 4. All acts ami parts of acts in conflict with this act are hereby repealed. Sec. u. This act shall take cfl"ect from and after its passage. TITLE XII. EELIGIOUS, SOCIAL, AND BENEVOLENT ASSOCL\.TIONS. 593. Corporal ion. "< for purposen oilier Ihan pr'>fil, lioxo formed. Sec. i5'J3. Any numbor of persons associated to-^etlier for any purpose where pecuniary profit is not their object, and for wliich individuals may lawfully associate themselves, may, in accordance wi.h the rules, regulations, or disci- pline of Kuch association, elect director.s, tho nuuiber thereof to be not less 14'J §§ 594, 595 com ORATIONS. [Div. I, Part IV, than three nor more than eleven, and may incorporate themselves as provided in this part. [Aninulmenf, approved April G, 1880; Amendments 1880, G {Ban. ed. 124); look effect immedlalcbj.\ Beuevolent associations not insurance companiss: Sec. 451, ante. An Act rdatiiif/ to mutual beneficial and relief associations, (Approved March 23, 1S74; 1873-4, 715.] Mutual heneficlal and relief asHOclaflons. .SixTioN 1. Associations iTia,y be forineil for the purpose of paying to the nominee of any member a sum upon the death of said member, not exceeding three dollars for eacli member of such association. No such association shall exceed in number one thousand persons. Uoio formed. 8ec. 2. .Such association shall be formed by filing a verified certificate in the office of the clerk of the county in which the principal place of business shall be situated, and filing a like certificate in tlie ollice of t!ie secretary of the state; such certificate shall state tlie general objects of the ass<)ciati(m, its principal place of business, and the names of the officers selected to iiold ollice for the first three months, and shall be signed by said officers, and verified by at least three of them. Poicerfi. Si;c. 3. Said associations, upon the death of each member, may levy an assessment upon ench member living at tlie time of the deatii, not exceeding three dollars for each member, and collect the same, and pay t'le same to the nominee of such deceased; and may also pi-oviJe tlie payment, of juch annual payments of members as may be deemed best. Such annual assessment u;)0u any one member not to be raised above the annual assessment established at the time such member joined such associatiou. Same. Sf.c. 4. Such association, by its name, may sue and be sued, and may loan such funds as it may iiave on iiand, and may own sufficient real estate for its business purposes, and such otlier real estate as it ma}' be necessary to purchase on foreclosure of its mortgages; provided, such real estate so obtained tlirongh foreclosure shall be sold and conveyed within five years from the d.iy title i^ obtained, unless the superior court of the proper county shall, upon petition and good cause shown, extend the time. [Amendment, approved April G, 18S0; Amendments 1880, 25 (Ban. ed. 128); took effect im?nediateli/.] By-laio.-i. Sec. .5. Such association may make such bydaws, not inconsistent with the laws of this state, as may be necessary for its government, and tor the transaction of its business, and shall not ba subject to the provisions of the general insurance laws. Old asyocialions. Sec. G. All associations heretofore formed for the objects contemplated by this act, and now in operation, niay avail themselves of its ]irovisions by iiling the certificate provided for iu sec- tion one; prnrided, that such society shall not have greater membership than three thousand. Sec. 7. This act shall take elTect immediately. 594. Additional facfii, articles of incorporation to he set out. Sec. 594. In addition to the requirements of section two hundred and ninety, tlie articles of incorporation of anj' association mentioned in the preceding sec- tion must set forth the holding of the election for directors, the time and place where the .same was held, that a majority of the members of sucli association ■were present and voted at such election, and the result thereof; which facts must be verified by the officers conducting' the election. Stats. 1850, ^H, sec. 17G; 18G2, 125. cate must be stated: Ferraria v. Vasconrellos, S';:itut3 auLliorlri-ns tli3 forma'Jon of 23 111. 458. If there is no statement as tj a religious sooi3ti23. should be substantially fol- majority of the members voting, tlie associ- l.jw^d and its express requirements complied atioa is not a corporation: People v. Selfridge, with, and all the facts required in the certifi- 52 Cal. 333. 595. Corporations to hold property — Amount of real estate limited. Sec 595. All such corporations ma}' hold all the property of the association owned prior to incorporation or acquired thereafter in any manner, and trans- act all business relative thereto; but no such corporation must own or hold more real estate than may be necessary for the business and objects of the asso- ciation, and providing burial-grounds for its deceased members, not to exceed six whole lots in any city or town, not more than twenty acres in the countiy, the annual increase, income, or profit whereof must not exceed fifty thousand dollars; provided, that any such corporation now or hereafter having, and 150 594. Additional Facts Articles of Incorporation to Out. In addition to the requirements of section two hunl and ninety, the articles of incorporation of any associat mentioned in the preceding- section must set forth the !h ing of the election for directors [in accordance with a r.- lution adopted at the last prior regular meeting,] the ti and place where the same was held, [and that notice of s meeting was given to the members of said association]; ; a majority of the members of sucli association [wlio] v [present voted] at such election, and the result ther v»?hich facts must be verified by the officers conducting election. (In effect 60 days from and after March 19, i: Stats. 1909, Chap. 306.) Civ. Code', Code, 1i| r-4 Title XII.] RELIGIOUS, SOCIAL, AXD BENEVOLENT ASSOCIATIONS. §§ 50G-5D9 having- had continuously foi* the next preceding three years, the caro, custod}', control, and maintenance each year, upon an annual average of not less than one hundred orphans, half-orphans, and indigent minor children at any one orphan asylum, shall be entitled and allowed to own and possess any number of acres, not exceeding one hundred and sixty acres of land in tho country, out- side of any incorjjorated city or town, and the annual income or profit of which does not exceed fifty thousand dollars; and provided further, such orphan asy-' lum shall be situated on such lands; and provided further, that the limitations herein provided for shall not apply to corporations formed, or to be formed, under section six hundred and two of the Civil Code, when the land is held or used for churches, hospitals, schools, colleges, oi'phan asylums, parsonages, or' cemeterj' purposes. [Amendment, approved Febraanj 2G, 1881; SUUalcs and Amendments 1881, 9; took effect immediate! ij.] 5S6. IIow mueJi land friendly , etc., societies may hold. Sec. 59G. In addition to that provided for in the preceding section, friendly societies and j^ioneer associations may liold such real estate as may bo neces— Raiy to carrj' out their charitable purposes, or for the establishment and endow- ment of institutions of learning connected therewith. In case any such cor- poration is the owner, by donation or purchase, of more lands than herein or in preceding section provided for, such surplus miist be sold and conveyed by tho corporation within five years after its acquisition. Such sale may be made without the order or decree of the superior court as hereinafter provided; [Amendment, approved April G, 1880; Amendments 1830, G {Baa. ed. 1-1); took effect immediately. ] 597. Directors to make verified report annually. Sec. 597. The directors must annuall}' make a full report of all property, real and personal, held in trust for their corporation by them, and of the condition thereof, to the members of the association for which they are acting. Stats. 1S30, 374, sec. 1S3. 598. Corporations may, by order of tJie superior court, sell or mortgage real estate. Sec. 598. Corporations of the character mentioned in section five hundred and ninety-three may mortgage or sell real property held by them, upon obtain- ing an order for that purpose from the superior court held in the county iu which the property is. situated. Before making the order, proof must be made to the satisfaction, of the court that notice of the application for leave to mort- gage or sell has been given by publication in such manner and for such time a'a the court or judge has directed, and that it is to the interest of the corp(;ratioa that leave should be granted as prayed for. The application must be made by petition, and any member of the corporation may oppose the granting of the order by siflSilavit or otherwise. [Amendment, a/>proced April G, ISSO; Amencl- m<-nts 1880, (i {lian. ed. 125); look effect immediately.] 599. What may he provided for in their by-laws, etc. Sec. 599. Corporations organized for purposes other than for pi'ofit may, ia their by-liuvs, ordinances, constitutions, or articles of incorporatic to the provisions in Title I. of this part, provide for: 1. The qualification of members, mode of election, and terms to membership; 2. Tho fees of admission and dues to be paid to their treasury • lol ^5 GOO-C02 CORPOrcATIONS. [T)iv. I, Pakt IV, 3. The number of members tb;iL shall coasLita':e a quorum at any meeting of the curporation, and that elactioa of oiBjor.-i of the corporation by a meeting 8o constituted shall be as valid as if there had been a majority of the members present thereat and voting. 4. The expulsion and suspension of members for misconduct or non-payment of dues; also, for restoration to membership; 5. Contracting, securing, paying, and limiting the amount of their indebt- edness; G. Other regulations, not repugnant to the constitution or laws of the state, and consonant with the objects of the corporation. [Amendinemt, approvrd March 14, 1885; Stalutes and Amendments 1885, loG.] Stats. 18G3, 624, sees. 8, 0. wr/f/ht, IG Ba-b. 4SG; White v. Droimell, i Al>b. By -la-vV3 may provide for what: See, gen- Pr., N. S., 1G2; Shctnii.oii v. Fro4, :i 13. Mon. erally, see. 303, ante. 2').\; Oreij'i v. MasM. Mnl. Sor., Ill Mass. IS."*. SubJ. 4. Expulsion of member.— As to For an exhaustive review of t!ie right of ecule-n- the I iglit of institutions whose object is not astical boiliea to exercise discinliiie over their purely one of gain to disfranchise members: members, acco.-ding to their established rules feee Grant on Corp. 2G2-'2j7. Bjfore e.xpul- and regal itious, see Watson v. Jouea, 13 \Vall. sion, a member is entitled to notice of the 670; Cha-ic. v. Chi'iifij, 58 III. ."JOO. intention, and the grotnids of the proposed The courts will merely inquire whether, action, and an opportunity to be heard in ()ppo- according to the law of the a:isoeiatit)n. the gition to the charges: Dlarb <£• W. S. Soc. v. action taken is authorized: Wallxr v. Wain- Vaud'/ke, 2 Wiiart. 309; Green v. A/. Meth. n-n'jht. 10 B.irb. 4SG; and whether the expul- Ep. Hoc, 1 Serg. & R. 254; Waxhinjlon S'oc. v. sion was done iii tlie manner and by tlie b:)dy Barker, 20 Pa. St. 425; Fuller v. Plai 'field providid by that law: Boidd'n v. Alcxindr, Acal., 6 Conn. 532; Barrow v. Med. Sac, 12 15 Wall. 131; Filzyerald v. Robinson, 112 Mass. Cush. 402; People v. St. Franci ^rtis Ben. •Soc., 379. 2t How. Pr. 216; SAle;/ v. VarOret Club, 40 M3n3arau3 li33 to compel restoration to N.J. L. 205. As a general rule, courts will not privilege of memljership, where one has bucn interfere with the proceedings of the associii- iiicgal.y removed: liarrown v. Ma.-«. Mfd. S;>r., tion. When members voluntarily enter these 12 Cusli. 402; ('rorker v. Oil SotUh .So.-., 103 associations they subject themselves to tiie law Mass. 480; Sleeper v. FranWui L'/eenm, 7 11. I. of tile l))dy, and they cannot c;)m;)lain of the ex- 523; .State v. Dunn, 12 Am. Deo. 31; Brice's •rcis J of a power to which t'ley have subscribed: Ultra Vires, 45, note b. High on Injunctions, sec. 230; Walker v. Wain- 600. Members admitted after incorporation. Sec. goo. Members admitted after incorporation have all the rights and privileges, and are subject to the same responsibilities, as members of the asso- ciation prior thereto. Stats. 1863, 624, sec. 7. ' 601. No member to transfer membership, etc. Sec GOl. No member, or his legal representative, must dispose of or transfer any right or privilege conferred on him by reason of his memb8rohi2> of such corporation, or be deprived thereof, except as herein provided. 602. Rules, etc., of religious denominations requiring administration of tempo- ralities. Sec. G02. Whenever the rules, regulations, or discipline of any religious denomination, society, or church require for the administration of the tem- poralities thereof, and the management of the estate and property thereof, it shall be lawful for the bishop, chief priest, or presiding elder of such religious denomination, society, or church to become a sole corporation, in the manner presrnbed in this title, as nearly as may be, and with all the powers and duties, and for the uses and purposes in this title provided for religious incorporatiojis, and subject to all the conditions, limitations, and provisions in said title pre- scribed. The articles of incorporation to be filed shall set forth the facts autluuizing such incorporation, and declare the manner in which any vacaucy occurring in the incumbency of such bishop, chief priest, or presiding elder ia 152 605. Consolidation of Corporations. Any corporation now or hereafter organized for purposes other than profit, may tconsolidate with] any other like association [or associa- tions], or corporation [or corporations], [created either] under the laws of the State of California, or under the laws of any other state or territory, [so as to form a new or consolidated corporation], in such manner as may be author- ized by the respective boards of directors or trustees of such [associations or] corporations [by resolution adopted at meetings of the respective boards called for that purpose. The resolution to be adopted by each of the respective boards shall state the names of all the corporations or asso- ciations to be united by the consolidation, the name of the state or territory under the laws of which they are created or organized, and the dates of their respective incorpora- tion, the name by which the new or consolidated corpora- tion is to be called or known, the purposes for which it is to be formed, the place where its principal business is to be transacted, the term for which it is to exist, the number of its directors or trustees, and the names and residences of those who are appointed to act as such for the first year, and shall designate three or more persons by whom articles of incorporation of the new or consolidated corpora- tion shall be subscribed and filed in compliance with thi.i section. Articles of incorporation of the new or consolidated corporation shall be subscribed and acknowledged by the persons so designated as last aforesaid in the manner re- quired by section two hundred and ninety-two of this code. Said articles shall contain and set forth all the matters re- quired by section two hundred and ninety of this code, and in addition thereto there shall be attached to said articles copies of the aforesaid resolution of the several assocSk- tions or corporations uniting in the con.solidation, certified by the respective secretaries of such associations or cor- porations under the corporate seals thereof; and the said articles of incorporation shall in the body thereof refer to the said resolutions and to the certified copies thereof so attached, and by such reference make the said certified copies a part of the said articles. The said articles of in- corporation shall be filed in the office of the county cleric of the county where the principal business of the new or consolidated corporation is to be transacted, and a certified copy thereof in the office of the secretary of state, in the manner required by this code for the filing of original ar- tides of incorporation; and thereupon tlie secretary of St?! shall issue to the corporation, over the great seal of tf state, a certificate in manner and form as provided by sel tlon two hundred and ninety-six of this code. From aJ after the filing of such certified copy of the articles of i| corporation with the secretary of state the former assoc'il tions or corporations uniting in the consolidation and corf prising the component parts of the new or consolidated co poration shall cease to exist, and the new or consolirtat corporation shall succeed to all the rights, duties and powe of the component associations or corporations, and shall possessed of all the rights, duties and powers set forth its articles of incorporation not inconsistent with this tit and shall be subject to all the liabilities and obligations [ the former component associations or corporations, and shij succeed to and become vested with all the property Iherec, both real and personal, of every name and nature, and mi! make by-laws and do all things permitted by this title.] (l effect 60. days from and after April 26th, 1909. Stats. 19(1 Chap. 721.) ^ Cjv. Code, 19C' TiTyEXIL] EELIGIOUS, SOCIAL, AND BENEVOLENT ASSOCIATIONS. §603 required by tire rules, regulations, or discipline of such denovnination, society, or cliurcli to be filled, which stateuieut shall he verified b}' afSdavit, and for proof of the appointment or election of such bishop, chief priest, or presiding elder, or of any succeeding incumbent of such corporation, it shall be sufficient to record with the clerk of the county in which such bishop, chief priest, or jKTvesiding- elder resides the original or a copy of his commission ^ or certificate, ®r letters of election, or appointment, duly attested; provided, all property held •by such bishop, chief priest, or pi-esiding elder shall be in trust for the use, purpose, and behoof of his religious denomination, society, or church. The limitation in section five hundred and ninety-five shall not apply to corpora- tions formed under this section, when the land is held or used for churches, hospitals, schools, colleges, orphan asylums, parsonages, or cemetery purposes. Any judge of the superior court in the county in which any corporation is formed under this chapter shall at all times have access to the books of such incorporation. Any corporation sole heretofore organized and existing under the laws of this state may elect to continue its existence under this act by filing a certificate to that effect, under its corporate seal and the hand of its incum- bent, or amended articles of incorporation, in the form required by the preced- ing section, as prescribed by section two hundred and eighty-seven (287) of the , Civil Code; and from and after the filing of such certificate or amended arti- cles, such corporation shall be entitled to the privileges and subject to the duties, liabilities, and provisions of this act exjiressed. \Amendme>d, approved April (5, 1880; Amendments 1880, G {Ban. ed. 125); look effect immedlaiehj.\ The foregoing section C02 was ori^anally a immediately. That act contains the following new section added to the Code by act of March additional section: 30, 1878; Amendments 1877-8, 84; took effect Continuance of existence. Sec. 2. Any corporation sole lieretofove organized and existing under the laws of this state may elect to continue its existence under this act by tiling a certilicate to t'lat elFect, under its corporate seal aoid the hand of its incumbent or amended articles of incorjtoration, in tlie form required by the preceding sectidu, as ] prescribed by section two hundred and ciglity-se\en (287) of the Civil Cod«; and from and after the filing of such certificate or amended articles such cor- poration shall be entitled to the privileges and subject to the duties, liabiiiUes, and provisicos •of this act expressed. ■603. Religiouii societies may incorporate. Sec. COo. Whenever the regulations, rules, or discipline of any church or Teligious society require, for the administration of the temporalities thereof, or lor the management of the property or estate thereof, any diocese, synod^ or district organization of such church or religious society may elect directors and become an incorporation in the manner prescribed in this title, and wiLh all the powers and duties, and for the uses and pui-poses, in this title pix)vided for benevolent or religious incorpox*ations, and subject to all the conditions, limi- tatiouf?, and pnovisions in paid title prescribed, except as otherwise provided in this section; provided, that directors of such incorporation may be elected, and that the by-laws for its government may be made and amended, by the conven- tion, synod, or other representative body of such church or religious society, in and for such district, in accordance with the constitution, by-laws, discipline, or regulation thereof, at any regular meeting, or special meeting called for that purpose; and provided, the certificate of incorporation and of the election of directors to be filed shall be sulfijiently signed and attested by the signature of the presiding ofiicer and secretary of the representative convention, synod, or other suv-h body, in which such electioL is held; and provided, all property Leld Ly such incoi-poration shall be in trust for the use, benefit, and purpose of 153 §§ G08-G11 CORPORATIONS. [Div. I, Part 17, the cliurcb oi* rclig-ioiis society by and for wliicli such incorporation was formed, and in and for which such diocese, synod, or other district is an organized or -constituent part; and that the limitation in section five hundred and ninety-five shall not apj^ly to corporations formed under this section, when the laud is held or used for churches, hospitals, schools, colle^'es, asylums, parsouaqi'es, or ceme- tery purposes. [New section, approved March 12, 1885; Slalates and Amendments 1885, 1U9.1 TITLE XIII. CEMETERY CORPOHATIONS. '608. How much land may be held, and how disposed of. Seo. G08. Corporations organized to establish and maintain cemeteries may take by purchase, donation, or devise land not exceeding three hundred and twenty acres in extent in the county wherein their articles of incorporation are :filed, to be held and occupied exclusively as a cemetery for the burial of the ■dead. The lands must be surveyed and subdivided into lots or plats, avenues, and walks, under order of the directors, and a map thereof filed in the office of the recorder of the county wherein the lands are situated. Thei-eafter, upon such terms and subject to such conditions and restrictions, to be inserted in the conveyances, as the by-laws or directors may prescribe, the directors may sell and convey the lots or plats to purchasers. SeeStits. 1859, 281,fortheoriginof this title. Wliether the legislature has the constitutional Cemetsriea— See an article ia 16 Cent. Law right to authorize a municipahty to remove the ■Journal, IGl, entitled "Graveyard Law," for a reiiiaius of tlie dead from cem'-t cries, seo Craig review of the ancient and modern adjudic.i- v. P'n-st I^resbi/terian Ch. of /'il/tih'iri//i, 88 Pa. tions upon que'^tious connected with burial, St. 42; S. C, ;)2 Am. Rep 417, and ii)tehy the and the rights of members of cemetery cor- editor of tlie American Reports, p. 42^. poratioiis. In 19 Am. Law Reg. 63, will be See ;50s<, sec. 801, subd. 17, note, "Easement found an article upon lots in cemeteries, of Right of Burial." 609. Who are members eligible to vote and hold office. Sec- goo. Every person of full age who is proprietor of a lot or plat in the cemetery of the corporation, containing not less than two hundred square feet of land, or, if there be more than one proprietor of any such lot, then such of the proprietors as the majority of joint j^roprietors designate, Jiiay, in person or by proxy, cast one vote at all elections had by the corporation for directors or any other purpose, and is eligible to any ofSae of the coi-poration. At each, annual meeting or election, the directors must make a report to the proprietors of all their doings, and of -the management and condition of the property and concerns of the corporation. 610. 3Piy hold personal properfi/, to what amount. Sec. GIO. S-uch corporations may liold personal property to an amount not exceeding five thousand dollars, in addition to the surplus remaining- from the sales of lots or plats after the payments required in the succeeding section. Such surplus must be disposed of in the improvement, embellishment, and preservation of the cemetery, and j)aying incidsutai expenses of the corpara- tions, and in no other manner. See also Stats. 186*, 12, sec. 1. 611. Maij issue bonds to pay for ground^. Sec Gil. Such corporations may issue their bonds, bearing interest nob. exceeding twelve par cent per annu.n, for the purchase of lands for thdr ceme- 15i 607e. Fines, Penalties and Forfeitures, and the Dis- position to be Made Thereof. All tines, pennlties and for- feitures imposed and collected in any [city or] county, or city and county, of this State under the provisions of any law of this State, now or hereafter enacted, relating to or affecting children or animals, in every case where the prose- cution was instituted, aided, or conducted by any corpora- tion or society now or hereafter existing, [incorporated or organized for the prevention of cruelty to animals or to children] must, except where otherwise provided, inure to such corporation or society in aid of the purposes for which it was incorporated or organized. In addition to said fines, penalties and forfeiture, every [such] society incorporated and organized for the prevention of cruelty to animals, or for the prevention of cruelty to [children], may, in each city, or city and county or county where such society ex- ists, while actively engaged in enforcing the provisions of the laws of this State, now or hereafter enacted, for the pre- vention of cruelty to animals [or children], or arresting, or prosecuting offenders thereunder, or preventing cruelty to animals [or children] be paid, as compensation therefor, from the county, or city and county general fund by the board of supem'isors, a sum not exceeding one hundred and fifty dollars per month, in the same manner as other claims against said county, or city and county, are paid. (In effect 60 days from and after March 20, 1909. Stats. 1909. Chap. 343.) Civ. Code, 1909. is- 3r- or ny or le- a- or to to Eh 607f. Members and Agents May Be Authorized to Act a Police Officers. All members and agents, and all officers o each or any of such corporations or societies, as may bs the tiTistees thereof be duly authorized in writing, approve by a judge of the superior court of the county in which sue corporation or society was organized, and sworn in the samt manner as are constables or peace officers, have power law fully to intei-fere to prevent the perpetration of any act o cruelty upon any child or dumb animal, and may use sucl force as is necessary to prevent the same, and to that enc may summon to their aid any bystander. They may make arrests for the violation of any penal la^ relating to or affecting children or animals in the sam manner as a constable or other peace officer; and may carr; the same or similar weapons that such officers are authorize! to carry; [provided, however, that in cities of the first clas no such member, officer or agent of such societies sha carry such weapon imtil permission in writing has been firs granted to him so to do by the board of police commissioner of said city or cities]. All such members and agents must when making such arrests, exhibit and expose a suitabl badge to be adopted by such corporation or society. All persons resisting such specially appointed officers, whe performing any duty under this section, are guilty of a niis demeanor. (In effect 60 days from and after February 2( 1909. Stats. 1909, Chap. 38.) Civ. Code, 190 Title XIIL] CEMETERY COnrO?.ATIOXS. §§ G12-G14 teries, payable out of tlio proceeds of tlio cemetery, and not otherwise; sixty per cent of tbe proceeds of sales of lots, plats, and graves must he ajiplied at least every three months to the paynieut of the bonds and interest. Such cor- porations may also agi'eewith the person or persons from whom cemetery lands shall be purchased to paj' for such lands, as the purchase price thereof, any Bpecilied share or portion, not exceedin.t,' one half, of the proceeds of all sales of lots or plats made from such lands; such payment to be made at such inter- vals as may be ap^reed upon. In all cases where cemetery' lands shall be pur- chased and agreed to be paid for in the manner last provided, the prices for lots or plats speciiled in the b3'-laws, rules, or regulations first adopted by such association, or i)rescribed in the agreement between the cemetery and the per- son or persons from whom the cemetery lands were j)urchased, shall not be changed without the written consent of a majority in interest of the persona from whom such lands were purchased, their heirs, representatives, or assigns. [AjuciKlnim/, approred April IG, 1880; Anu-nthnenls 1880, 12 [Ban. ed. 37G); look effect iiniuediali'li/.j 612. j\fcn/ take and hold property or use income thereof, how. Sec. G12. Cemetery corporations may take and hold any property bequeathed or given them on trust, or the lots, plats, or graves thereon, for the specific purpose of embellishing or improving the grounds, avenues, or sui^erstructures of their cemeteries, to use the income thereof, for the erection, preservation, or repair of monuments therein, or for any other purpose or design consistent with the objects of the corporation. 613. Burial .lot iiialiemtble after interment iJicrein. Si:c. G13. "Whenever an interment is made in any lot or plat transferred to individual owners l)y the coi'poratiun, (he same thereby becomes foi'ever inalien- able, and descends in regular line of succession to the heirs at law of tlie owner. When there are several owners of interests in such lot or plat, one or more may acquire b}' jiurchase the interest of others interested in the fee-sunple title thereof; but no one not an owner acquires interest or right of burial therein by purchase; nor must any one be buried in any such lot or plat not at the time owning an interest therein, or who is not a relative of such owner, or of his wife, except by consent of all jointly interested; provided, however, that when all the bodies buried in any such lot shall have been removed therefrom, with the consent of the owners of such lot, it shall be lawful for the then owners of such lot to sell and transfer the same by deed; and any such sale and transfer heretofore made is hereby declared to be valid and effectual to transfer the title to the i)urchaser, any law to the contniiy thereof notwithstanding. [Amend- ment, approved February IQ, l^'So; btalitles and Amendments 1885,1; lu force from its pa.^snye. | 614. Lot-'iiowrs previous to purchase to he members of the corporation. Sec. C14. "When grounds purchased or otherwise acquired for cemetery pur- poses have been previously used as a burial-ground, those who are lot-owners at the time of the purchase continue to own the same, and are meujbers of the corporation, with all the privileges a purchase of a lot from the corporation confers. l.-)5 §3c:a-G23 conror.ATiONS. [Dit. i, pakt rv, TITLE XIV. AGRICULTURAL-FAIR CORPORATIONS. 620. Jifrnf acquire', and hold real ci^tate, how much. Sec. G'20. Agricultural-fair cor|:)oration3 may purchase, hold, or lease any quantity of land, not exceedinj^ in the ag;2rregate one hundred and sixty acres, with such building's and improvements as may be erected thereon, and may sell, lease, or otherwise dispose of the same at joleasure. This real estate must be held for the purpose of erecting buildings and other improvements thereon, to promote and encourage agriculture, horticulture, mechanics, manufactures, stock-i'aising, and general domestic industry. See Stats. 1S39, 104, for the origin of this title. 621. Shall not contract debts or liabilities exceedinri amount in treasunj. Sec. C21. Such corporation must not contract any debts or liabilities in excess of the amount of money in the treasury at the time of contract, except for the purchase of real property, for which they may create a debt not exceed- ing five thousand dollars, secured by mortgage on the property of the cor- poration. The directors who vote therefor are personally liable for any debt contracted or incurred in violation of this section. 622. Not for profit. Sec G22. Agricultural- fair corporations are not conducted for profit, and have no capitid stock or income other than that derived from charges to exhib- itors and fees for membership, which charges, together with the term of mem- bership and mode of acquiring the same, must be provided for in their by-laws. Such fees must never be greater than to raise sufficient revenue to discharge the debt for the real estate and the improvements thereon, and to defray the current expenses of fairs. TITLE XV. GAS CORPORATIONS. 628. Corporations to obtain privilege from city or town, and use meters proved by inspector. Sec. C28. No corporation hereafter formed must supply any city or town "with gas, or lay down mains or pipes for that purpose in the streets or alleys thereof, without permission from the city or town authorities, granted in pur- suance of the provisions of the Political Code or of statutes expressly continued by such code. Nor must such corporation furnish or use any gas-meter which has not been proved and sealed by the inspector of gas-meters. See Stats. 1803, G47, for the origin of this title, 629. Gas to be supplied on written application. Sec G29. Upon the application in writing of the owner or occupant of any building or premises distant not more than one hundred feet from an}' main of the corporation, and payment by the applicant of all money due from him, the corporation must supply gas as required for such building or premises, and cannot refuse on the ground of any indebtedness of any former owner or occu- pant thereof, unless the applicant has undertaken to pay the same. If, for the Bpace of ten days after such application, the corporation refuses or neglects to lu6 Title XVI.] LAXD AND EUILDING CORPOllATIONS. §§ 630-640 supply (he gas required, it must pay to the applicant the sum of fifty dollars as liquidated damages, and five dollars a day as liquidated damages for every day such refusal or neglect continues thereafter. Gupplyiiig cas. — ImlependcDt of positive Drmly, 27 N. J. L. 215. If the refusal to sup- cnacttm-'iit, a p.-is company is not Ijonml to sup- ply gas is sought to bo justified on the ground ply gas to every plied Met. Uas-lhjIU Co., 38 N. Y. Super. Ct. ISj. with gas: Oats-liyht Co. v. CoUiday, 2 J Md. 1. TITLE XVI. LAND AND BUILDING CORPORATIONS. 639. Uow organized. Six. G30. Corporations organized for the erection of buildings and making other improvements on real property may raise funds in shares not exceeding two hundred dollars each, payable ia periodical installments. Such bodies are known as land and building corporations, and may be organized with or with- out a capital stock. {Ameudmod, approved Jllarah 30, 1874; Amendnienls 1873-4, 217; took rffixt July I, 1874. ] This title is principally drawn from Stats. 18G1, 507. 640. Jl/fl/y borrow money. Sec. 040. Any such corporation may borrow money for the purpose of carry- ing out its objects, and may give as security therefor its shares or mortgage upon its real estate, 157 §§ 641-645 CORPORATIONS. [Div. I, Part IV, 641. Powers and object of corporation. Sec. G41. Any such corporation may purchase real estate and erect buildings for its members, and make loans to its members for the purpose of aiding them in acquiring and improving real estate. Such loan must iu all cases be secured on such real estate. 642. IFay infmre the lives of members and debtors. Sec. G42. Such corporation may insure, in some life insurance company incorjDorated under the laws of this state, the lives of its members and debtors. In case of the death of a debtor or member so insured, the amount recovered on the polic3' must be applied to extinguish the indebtedness, including the premium paid, and the residue, if any, must be paid to the legal representatives of the decedent. 643. WJiat real estate may be oioned at any one time. Sec. G43. Any such corporation may purchase, hold, and convey real estate as follows: 1. The lot and building in which the business of the corporation is carried on, the cost of which must not exceed twenty thousand dollars; 2. Such as may from time to time be necessary to sujiply the wants of its members, the cost of which, held unallotted to the members thereof at any one time, must not exceed the sum of one hundred thousand dollars; 3. Such as shall have been mortgaged, i^ledged, or conveyed to it in trust, to secure money loaned or to secure the purchase price thereof in pursuance of the regular business of the corporation. 644. Whal the by-laius may provide. Sec G44. The by-laws of such corporations must specify the amount of the periodical subscriptions or payments to be made by each member, the time and manner in which such payments are to be made; the fines and forfeiture for default; the time and manner of election of directors and other officers, and their terms of office; the manner in which the real estate may bo distributed, allotted, or sold to its members; the terms and conditions upon which loans maybe made to its members and by them repaid to the corporation; the manner in which a person may become and cease to be a member; the conditions on "which members may withdraw from the corporation, and the provisions for the payment to withdrawing members of the sums of money duo to them arising from subscriptions or payments, and the proportion of the profits such with- drawing members may receive on withdrawal. See also Stats. 1SG7-8, 539, sec. 1. 645. Secretary must make annual statement, and publish same. Sec G45. The secretary of any such corporation must, once in each j'ear dur- ing the existence of the corporation, pi'epare a full and explicit statement of the financial affairs thereof, comprising a balance-sheet, statements of receipts and expenditures, profit and loss, and assets and liabilities, which must be audited and verified by two competent persons (not directors), elected by the general body of shareholders, and be countersigned by the president and secretary. A copy of such statement must be printed and circulated among tho members, and appear immediately after the annual meeting of tho corporation daily at least one week, or weekly at least four weeks, in one or more newspapers pub- lished at tho place of the principal business of the corporation. 153 648. Definition of. The name "building and loan [as- sociations"! as used in this titlP sbaii inr.i„ri<:>._, 64Sa (new). How Formed. Buildin.sr and loan associa- tions may be formed under this title with or without guar- antee or other capital stock with all the rights, powers and privileges and subject to all the restrictions and liabilities set forth in this title. If formed without any capital stock or with guarantee capital stock only, the working capital may be accumulated by the issue of membership shares, units or certificates having a paid up or ultimate matured installment value of one hundred or two hundred dollars each, and en- titled to all the rights, powers and privileges and subject to all the restrictions and liabilities provided in this title for shares of authorized capital stock of a similar class. Any building and loan association heretofore formed may re- incorporate under the provisions of this section and may sub- stitute membership shares, units or certificates of similar classes for its outstanding or authorized shares of capital stock, other than guarantee capital stock, by the unani- mous vote of its board of directors and by a vote or written assent of the stockholders representing at least two-thirds of the subscribed capital stock and by filing amended articles of incorporation with the county clerk of the county in which the corporation's principal place of business is located and a copy of said amended articles, certified by such county clerk. In the office of the secretary of state. (In effect 60 days from and after March 25, 1909. Stats. 1909, Chap. 412.) Civ. Code, 1909. 649. ArticI ^■ho may desire\l\'ZluT'''°''- -^"^- ""nib.r of n "^-ty,r::ticle"3^^^^^^-^--e:Lr::X^t ""^ '^''' 1- The name Of the r""°'"""«" ^^aH ou"n"° ^^""'^''^^ 2- The purnos^f ^"'"Poration. ^oniam. ^"^■^'^^'- '''" '"'''^^ or seminarv is to , ■*■ The number of if . ^ ™"- five nor more rtu ^''ustees, which shpii dences of the . " ^^enty-five], and th. ' ""^ '"^« t'>^« "amed and tllf ''""'• ^^^ term "or 1 , "?""' ^"^ '^^^i- - ^'--. 3han ;:io;';r "-^ -« tXr-. -- -so be 'T^^^::^ s tf ^° -- ^"^^"°"' --'^ - -^x scribed rin i^ '"''"^^ and descrinJin ''^*^' together C'v. Code, 1900. r T 6 Iv t( 64S. Definition of. The name "building and loan [as- sociations"] as used in this title shall include: — [First.] Corporations formed for the purpose of i-eceiv- ing money from, and loaning money to, tlieir members only. [Second.] Corporations, associations, companies, copart- nerships, and individuals transacting the l:)usiness of issuing or selling bonds, debentures, certificates, shares of stock, or other papers, by whatever names said instruments may be designated, whether said instruments are issued for money paid in advance or for money to be paid in installments, [but with an intent, either implied or expressed, that the pro- ceeds or accumulated installments thereof and thereon are to be withdrawable or repayable, with accumulated profits, at some future fixed, or indefinite date of maturity] ; pro- vided always, that this section does not include persons, copartnerships or corporations engaged in any kind of bank- ing business. (In effect from and after March 22, 1909. Stats. 1909, Chap. 373.) Civ. Code, 1900. Title XVII.] COLLEGES AND SEMINARIES OF LEARNING. §§ G4G-649 646. Liability of members. Section G4G was repealed by act approved one year has elapsed since lie ceased to be a Marcli 30, 1874; Amendments 1873-4, 217; member before suit is commenced, nor for any took effect July 1, 1874. debtor liability contracte3. See of learning, also in Statutes iu Force, title "Education," 649. Providing for the incorporation of colleges and seminaries of learning. Sec. G49. Any number of persons who may desire to establish a college or seminary of learning may incorporate themselves as provided in this part, except that in lieu of the requirements of section two hundred and ninety, the articles of incorporation shall contain: 1. The name of the corporation; 2. The purposes for which it is organized; 3. The place where the college or seminary is to be conducted; 4. The number of its trustees, which shall not be less than five nor more than fifteen, and the names and residences of the trustees. The term for which the trustees named and their successors are to hold office may also be stated. If it is desired that the trustees, or any portion of them, shall belong to any organi- zation, 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, together with the amount of money and description of property subscribed. See note at head of this title. 159 g5 530, 6.51 COIirORATIOXS. [Div. I, Tart IV, Title XVII. 650. PozD'Ts of frusfees of coUrgps. Sec. G')0, Unless otherwise provided in t!ie articles of incorporation, the board of trustees shall, as soon as organized, so classify themselves that on© fifth of their number shall go out * f office every j'ear, and thereafter the trus- tees 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 coi'poration 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. Uiiou the death, removal out of the state, or other vacancy in the office, or expiration of the term of any trustee, to elect another in his place; provided, that where there are graduates of the institution, such graduates may, under such rules as the board shall pi'escribe, nominate persons to fill vacancies in the board of trastees; such nomination shall be considered by the board, but it may reject an}' or all such nominations, and of its own motion appoint others; 3. To elect additional trustees; pi-ovided, the whole number elected shall never exceed fifteen at any one time ; 4. To declare vacant the seat of any trustee who shall absent himself from eight succeeding meetings of the board; 5. To receive and hold, by purchase, gift, devise, bequest, or grant, real or personal property for educational purposes connected with the corporation, or for the benefit of the institution; G. To sell, mortgage, lease, and otherwise use and dispose of the property of the corporation in such manner as they shall deem most conducive to the pros- peritj' of the corporation ; 7. To direct and prescribe the course of study and discipline to be observed in the college or seminary; 8. To appoint a president of the college or seminary, who shall hold his office during the pleasure of the trustees; 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 officers of the cor|ioration and the institution as they shall deem expedient; 11. To fix salaries of the president, professors, and other officers and em- ployees of the college or seminary; 12. To make all by-laws and ordinances necessary and proper to carry into effect the preceding powers and necessary to advance the interests of tlio college or seminary; provided, that no by-laws or ordinance shall conflict with the con- stitution or laws of the United States or of this state. 651. Trnnifcr of property from exisling to new colleges. Sec. C51. 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 organ- ized under this title. The fact that duo notice of the meeting was given to each trustee shall be conclusively proven by the entries in the minutes of the corpo- ration or body making the conveyance. Said minutes shall be certified to bo correct by the president and secretary. See note at bead of this title. 160 11. To fix salaries of the president, professors, and other ►fflcers and employees of the college or seminary. 12. To make all by-laws and ordinances necessary and •roper to carry into effect the preceding powers and neces- ary to advance the interests of the college or seminary; irovided. that no by-laws or ordinances shall conflict with he constitution or laws of the United States, or of this state. In effect 60 days from and after March 20, 1909. Stats. 1909, ;hap. 357.) Civ. Code, 1909. 650. Board of Trustees; Powers of. Unless otherwise provided in the articles of incorporation the board of trus- tees, sliall, as soon as organized, so classify themselves that one-flfth 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 corporation shall be at the college or seminary. The trustees shall have power: 1. To elect, by ballot, annually one of their number as president of the board. 2. Upon the death, removal out of the state, or other va- cancy in the office, or expiration of the term of any ti'ustce, to elect another in his place; provided, that where there ai-e graduates of the institution, such graduates may, under such rules as the board shall prescribe, nominate persons to fill vacancies in the board of trustees. Such 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 numl)er elected shall never exceed [twenty-five] at any one time. 4. To declare vacant the seat of any trustee who shall absent himself from eight succeeding meetings of the board. 5. To receive and liold, by purchase, gift, devise, bequest, or grant, real or personal property for educational purposes connected with the corporation, or for the benefit of the in- stitution. 6. To sell, mortgage, lease and otherwise use and dispose of the property of the corporation in such manner as they shall deem most conducive to the prosperity of the corpora- tion. 7. To direct and prescribe the course of study and 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 trustees. [9. To appoint such professors, tutors, and other offieei'S 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 di- plomas under their seal, and the signature of such officers of the corporation and the institution as they shall deem e.x- pedient. 653. Societies and Organizations Authorized to Consoli- date; Trustees; Annual Reports. Whenever any lienevolent, religious or fraternal organization or sofiet\-, iitiving a grand lodge, assembly, conference or otlier legislative or representa- tive head in the state of California, having two or more col- leges or institutions of higher education under its patronage, shall, for the purpose of greater efliciency and sinipUcity in the administration of its educational interests, desire to con- solidate such institutions under one management, such or- ganization or society shall be and is [hereby] authorized to consolidate such institutions under one management by complying with the following provisions: Such grand lodge, assembly, conference or other legislative or representative head having authorized a consolidation of its institutions, a new corporation shall be formed. The board of trustees of the new corporation shall at first consist of the persons constituting the boards of trustees of the several institutions, respectively thus [consolidating], and others; provided the number of trustees shall not exceed forty-five. The board of trustees shall be so classified that the term of office of one third of its number shall expire each year; the successors of such trustees, as their terms expire, shall be elected by such grand lodge, assembly, conference or other legislative or representative head, at its annual meeting. The said board of trustees shall report annually to the grand lodge conference assembly or other legislative or rep- resentative head controlling it. the condition of affairs of such corporation, and the amount and manner of its receipts and expenditures. [After the two or more colleges or institutions of b.igher education under the patronage of any benevolent, religious or fraternal organization or society, having a grand lodge, assembly, conference or other legislative or representative head in the state of California shall have become consolidated as hereinbefore directed or specified, the board of trustees of the new corporation, consisting at first of the persons con- stituting the boards of trustees of the several institutions, re- spectively thus consolidated, may be reduced in number after said board of trustees shall have transacted the business of said corporation for a period of five years after such con- solidation. Said number shall be reduced by the grand lodge, assembly, conference or other legislative or representative head of said colleges or institutions of higher education in the following' maniiL-r, viz: At any annual session of such grand lodge, assembly, conference or other legislative or rep- resentative head, there shall be dropped from the number of trustees to be elected at that session of such grand lodge, assembly, conference or other legislative or representative head such a, number of trupte-^s as those present at such ses- sion shall determine, provided however, that at no time shall the number of trustees composing such board be less than fifteen.] (In effect 60 days from and after March 15, 1909. Stats. 1909, Chap. 253.) Civ. Code, 1909. TITLE XXI (New). (In effect 60 days from and after February 12, 1909. Stats. 1909, Chap. 2(,;.) Non-Profit Co-Operative Agricultural, Viticultural and Horticultural Associations. Section 653m. Formation and Purposes of. 653n. Membership. 6530. Articles of Incorporation. 653p. By-Laws. 653q. Powers of Association. 653r. Amendment of Articles of Incorporation, 653s. Quo Warranto. 653m (new). Formation and Purposes of. Three or more persons engaged in tlie production, preserving, drying, pack- ing, shipping, or marketing of agricultural, viticultural or hor- ticultural products, or all of them, may form a non-profit co-operative association under the provisions of this title, to carry on said business, and such association shall have, and may exercise, the powers autliorized by this title, and the powers necessarily incidental thereto, and all other powers granted to private corporations by tho laws of this state, ex- cept such powers as are inconsistent Vv'ith those granted by this title. 653n (new). Membership. Such association shall not have la capital stock, and its business sliall not be carried on for I profit. Any person or any number of persons, in addition I to the original incorporators, may become members of such I association, upon such terms and conditions as to member- ship, and subject to such rules and regulations as to their, and each of their, contract and other rights and liabilities between it and the member, as the said association shall provide in its by-laws. The association shall issue a cer- tificate of membership to each member, but the said mem- bership, or the said certificate thereof, shall not be assigned by a member to any other person, nor shall the assigns thereof be entitled to membership in the association, or to any property rights or interest therein. Nor shall a pur- chaser at execution sale, or any other person who may sue- ceed, by operation of law or otherwise to the property in- terests of a member, be entitled to membership or become a member of the association by virtue of such transfer. The board of directors may, however, by motion duly adopted by it, consent to such assignment or transfer and to the accept- ance of the assignee or transferee as a member of the asso- ciation, but the association shall have the right, by its by- laws, to provide for or against the transfer of membership and for or against the assignment of membership certificates, and also the terms and conditions upon which any such trans- fer or assignment shall be allowed. 6530 (new). Articles of Incorporation. Each association formed under this title must prepare and file articles of in- corporation setting forth: 1. The name of the association. 2. The purpose for which it is formed. 3. The place where its principal business will be transacted. 4. The term for which it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted office. 6. Whether the voting power and the property rights and interest of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules applicable to all members by which the voting power and the property rights and interests, respectively, of each member may and shall be determined and fixed, but the association shall have power to admit new members who shall be entitled to vote and to share in the property of the association with the old members, in accordance with such general rule. This provision of the articles of incorporation shall not be altered, amended, or repealed except by the unanimous written con- sent or the vote of all of the members. 7. Said articles must be subscribed by the original members and acknowledged by one of them before an officer authorized by the law of this state, to take and certify acknowledgments of deeds of conveyance, and shall be filed in accordance with the provisions of section 296 of this code, and when so filed the said articles of incorporation or certified copies thereof shall be received in all the courts of this state, and other places, as prima facie evidence of the facts contained therein. 653p (new). By-Laws. Each association incorporated luiclcr this title niust, within thirty flays after its incorpora- tion, adopt a code of by-laws for its governnient and man- agement not inconsistent with the provisions of this title. A majority vote of tiie members or the written assent of members representing a majority of the votes, is necessary to adopt such by-laws. The provisions of sections 303 and 30-1 of this code, whiclr are not inconsistent witli the provi- t-ions of this title, shall apply to the by-laws of the corpora- tions provided for in this title. Each association may al.so, l^y its by-laws adopted as aforesaid, provide for tlie follow- ing matters: . . > L 1. The manner of removal of any one or more' of its direc- tors and for filling any and all vacancies in tire board of directors. . 2. The number of directors and the number of membcr.s or \'otes thereof constituting a quorum. 3. The conditions upon which and the time when member- ship of any member in the association shall cease; the mode, manner and effect of expulsion of a member, subject to the light of the. expelled member to have the board of directors ciiuitably appraise his pi'operty interests in tiie association and to fix the amount thereof in money, and to have the inom-y paid to him within sixty days after such expulsion. 4. 'I'he amount of membership fee, if any, and the" amount whiih each member shall be required to pay annually, or from time to time, if at all, to carry on the business of the associa- tion, and also the compensation, if any, to be paid by each member for any services rendered by the association to him, and the time of payment and the manner of collecting .the same, and for forfeiture of the interest of the member in the association for non-payment of the same. .5. The number and qualifications of members of the associa- lion, and the conditions precedent to memoership and the method, time and manner of permitting members to with- draw, and providing for the assignment and transfer of the interest of members, and the manner of determining the value of such interest and providing for the purcliase of such interest by the association upon the death, withdrawal or expulsion of a member or upon the forfeiture of liis member- ship, at the option of the association. 6. Permitting members, to vote by tlreir proxies, and de- termining the conditions, manner, form and effect thereof. 653q (new). Po\vers of Association. EaclV association in- corporated under this title shall have the powers granted by the provisions of this code and other laws of California relating to private corporations, and shall also have the following powers: 1. To appoint such agents and officers as its business may require, and such appointed agents may be either persons or corporations; to admit persons to membership in the association, and to expel any member pursuant to the pro- visions of its by-laws; to forfeit the membership of any member for violation of any agreement between him and the association, or for his violation of its by-laws. 2. To purchase or otherwise acquire, hold, own, sell and otherwise dispose of any and every kind or kinds of real and personal property necessary to carry on its business, and to acquire by purchase or otheiwise the interest of any member in the property of the association. 3. Upon the written assent or by a vote of members repre- senting two-thirds of the total votes of all members to co- operate with any other co-operative corporation or cor- porations for the co-operative and more economical carrying on of their respective businesses by consolidation as provided in section 653i of this code, whereupon the effect of such consolidation shall be the same as declared in said section; or upon resolution, adopted by its board of directors, to enter into all necessary and proper contracts and agree- ments, and to make all necessary and proper stipulations and arrangements with any other co-operative corporation or corporations for the co-operative and more economical carry- ing on of its business, or any part or parts thereof; or any two or more co-operative corporations organized imder this title, upon resolutions, adopted by their respective board of directors, may, for the purpose of more economically carrying on their respective businesses, by agreement be- tween them, unite in employing and using, or several asso- ciations may separately employ and use, the same methods, means and agencies, for carrying on and conducting their respective businesses. 4. Any association formed or consolidated under this title may be dissolved and its affairs wound up voluntarily by the written request of members representing two-thirds of the total votes, in the manner and with the effect provided in section 653j of this code, except that the moneys remaining after liquidation shall be divided among the members in pro- portion to their property interest^ therein. I 653r (new). Amendment of Articles of Incorporation. Any corporation, whether stock or membership. Iieretofore incorporated under the laws of this state for the purpose of engaging in and carrying on the business specified in section 653m of this title, the stockholders or members of whicli would be entitled to incorporate under the provisions of this title, may, by the unanimous written assent or vote of all the stockholders or members, amend its articles of incor- poration to conform to the provisions of this title in the manner and with the effect provided in section 362 of the Civil Code, and from the time of filing the amended articles, such corporation shall have the same powers as if it had originally incorporated under the provisions of this title; provided, however, that the debts, obligations, and other liabilities against such corporation or against the members or the stockholders thereof, existing at the time of such amendment, shall not be discharged or their collection or enforcement otherwise impaired; and provided further that the respective property interests of the several stockholders by virtue of their ownership of shares of stock therein, or the several members by virtue of their membership therein, and also the voting power of each of them, shall be deter- mined and fixed by the amended articles of incorporation in accordance with the provisions of subdivision 6 of section 653o, but which rights shall be subject to the right of tha association to admit new members. 653s (new). Quo Warranto. The riglit of an association claiming to be organized and incorporated and carrying on its business under this title, to do and to continue its busi- ness, may be inquired into by quo warranto at the suit of the attorney-general, but not otherwise. Civ. Code, 1909. II. such rep- iiber lose. Sal n- o- be JUahnii 801, po.st, s\ 656. Wit Sec. G5i only wber and beld ii Animals fi bee belong U. Civ. C ludse. or interest therein, nor shall a purchaser at execution sale, or any other person who may succeed, by operation of law or otherwise, to the property interests of a member, b« entitled to membership, or become a member of the cor- poration by virtue of such transfer. The board of director* may, however, by motion duly adopted by it, consent to such assignment or transfer, and to the acceptance of th« assignee or transferee as a member of the corporation. Tho corporation shall also have the right, by its by-laws, to pro- 1 vide for or against the transfer of membership and for drj against the assignment of membership certificates, and alsoj tlie terms and conditions upon which any such transfer assi,gnment shall be allowed. 653v. Articles of Incorporation. Each corporation formed under this title must prepare and file articles of incorpora- tion in writing setting forth: 1. The name of the corporation. 2. The purpose for which It is formed. 8. The place where its principal business will b» tram acted. 4. The term for which it Is to exist, not exceeding fifty years. 6. The number of directors thereof, which must not b« less than three and which may be any number in excess thereof, and the names and lesidences of those selected foi the first year and until their successors shall have b«en elected, and shall have accepted office. 6. Whether the voting power and the property rights and Interest of each member shall be equal or unequal, and 11 unequal the articles shall set forth a general rule or rulei applicable to all members by which the voting power and the property rights and Interests, respectively, of each mem- ber may and shall be determined and fixed, but the cor poratlon shall have power to admit new members who shal be entitled to vote and to share in the property of the cor- poration with the old members, in accordance with sucl general rule. 7. Said articles of Incorporation shall be subscribed In three or more of the original members, a majority of whon must be residents of this state, and acknowledged by eaclj before some officer authorized to take and certify acknowtj edgraents of conveyances of real property, and shall bj filed in all respects In accordance with the provisions section 296 of this code, and thereupon the secretary 9 etatp shall issue to the corporation, over the great seal of the state, a certificate that a copy of the articles con- taining the required statement of facts has been filed in hl« office, and thereupon the persons signing the articles and their associates and successors shall be a body politic and I corporate by the name stated in the certificate. When so filed, the said articles of Incorporation or certified copiea thereof shall be received In all the courts of this state, and other places, as prima facie evidence of the facts contained . therein. 653w. By-Laws. Each corporation Incorporated under thi» title must, within one month after filing articles of incor- poration, adopt a code of by-laws for its government and management not Inconsistent with tlie provisions of this title, A majority vote of the members or the written as- ' sent of members representing a majority of the votes is necessary to adopt such by-laws. The provisions of section* SOS and 304 of this code, wMiich are not inconsistent with the provisions of this title, shall apply to the by-laws of the corporation provided for in this title. Each corporation organized hereunder may also, bj- its by-laws adopted »■ aforesaid, provide for the following matters: 1. The manner of removal of any one or more of It» directors and of filling any and all vacancies in tho board ' of directors. 2. The conditions upon which ond the time when member- ■hip of any member in the corporation shall cea.«:e; th« mode, manner and effect of expulsion of a member, subject to the right of the expelled member to have the board of directors eauitably appraise his property interests In th« corporation and to fix the amount tiiereof In money, and to have the money paid to him within sixty davs after such expulsion. Z. The amount of member-ship fee. If any, and the amount which each member shall be ref4Uired to pay annually, or from time to time. If at all, to carry on the business of th« 'corporation, and also the compensation, if any, to be paid by each member for any services rendered by the corpora- tion to him, and the time of payment and the manner of collecting the same, and may provide for forfpiture of th« Interest of the member in the corporation for non-payment of the same. 4. The number and qualifications of members of the cor- poration and the conditions precedent to membership and XVII. )f such or rep- lumber I lod.are. the method, time and manner of permitting members to ■withdraw, and providing for the assignment and transfer of the interest of members, and the manner of determining the value of such interest and providing for tlie purchase of »uch interest by the corporation upon the death, withdrawal or expulsion of a member or upon the forfeiture of his mem- bership, at the option of the corporation. 653x. Powers of Corporation. Each corporation incor- porated under this title shall have the powers granted by the provisions of this code and other laws of California, relating to private corporations, which are not inconsistent with those granted by this title, and shall also have the following powers: 1. To appoint such agents and officers as Its business may require, and such appointed agents maj- be either persons or corporations; to admit persons and corporations to mem- bership in the corporation, and to expel any member pur- suant to the provisions of its by-laws; to forfeit the mem- bership of any member for violation of any agreement be- tween him and the corporation or for his violation of its by-laws. 2. To purchase, lease or otherwise acciuire. hold, own anil enjoy, to sell, lease, mortgage and otherwise encumber anO dispose of any and all and every kind or kinds of real an^; personal property, also to carry on any and all operation.- necessary or convenient in connection with the transactior of any of its business. S. Upon the written assent of two- thirds of all the mem- bers or by a vote of members representing two-thirds o the total votes of all members of each of two or more sucl non-profit co-operative corporations to co-operate with eacl other for the more economical carrying on of their respectiv< businesses by consolidation as provided in section 6.58i o this code, such consolidation shall be effected, and there upon the effect of such consolidation shall be the same a declared in said section. Any such corporation upon reso' lution, adopted by its board of directors, shall have th power to enter into contracts and agreements, and to mak stipulations and arrangements with any other corporatic or corporations for the co-operative and more economics carrying on of its business, or any part or parts thereof or any two or more co-operative corporations organized unde this title, upon resolutions adopted by their respectiv boards of directors, may, for the purpose of more economical special ,o each organ- o each corpo- to bo ly carrying on their respective businesses, by agreement, unite in adopting, employing and using, or several such cor- porations may separately adopt, employ and use the same methods, policy, means, agents, agencies and terms of marketing for carrying on and conducting their respective businesses. 4. Any corporation formed or consolidated under this title may be dissolved, and its affairs wound up voluntarily bv the written consent of members representing two-thirds of the total votes, in the manner and with the effect provided in section 653j of this code, except that any property remaining after liquidation shall be divided among the members in proportion to their respective property interests therein. 653y. Amendment of Articles of Incorporation. Any such corporation may amend its articles of incorporation in any manner not inconsistent with the provisions of this title, in the manner provided for by section 362 of the Civil Code of this state. 653z. Quo Warranto. The right of a corporation claim- ing to be organized and incorporated and carrying on its business under this title, to do and to continue its buslne-ss, may be inquired Into by quo warranto proceeding at the suit of the attorney-general, but not otherwise. 653za. Particular Corporations. This title Is not ap- plicable to railroads, telegraph, telephone, banking, insur- ance, building and loan, or any other corporation, unless the special provisions of this code applicable thereto are com- plied with. 653zb. Voting. In the event the by-laws shall provide for unequal voting power, or unequal property rights of the several members, or both, the provisions of this title with reference to a majority, a two-thirds, or other vote of the members, shall not apply, and in lieu thereof, there shall be substituted a majority, or a two-thirds of the votes of the interests represented by the several members, or other- wise as th« case may be. Civ. Code, 1909. I L [I. uch rep- iber Ids )ecial each ti-gan- each orpo- Lo be t)iv. n, Paet I, Title I.] NATURE OF PROPEKTY. §S 654-6» DIVISION SECOND. PiET I. Property in General ^54 II. Real or Immovable Property '''55 III. Personal or Movable Property 946 IV. Acquisition of Property -,,... lOUQ PABT I. PROPERTY IN GENERAL, Title I. Kature of Property 654 II. Ownership CC9 III. General Definitions , 748 TITLE I. 1 NATURE OF PROPERTY. 654. Property, what. Sec. G54. The ownersliip of a thing is the right of one or inom perilous tOr possess and use it to the exclusion of others. lu this code, the thing ol which there may be ownership is called property. Property. — Tlie above definition includes y.iO.T/p.sora, 18Id. 11. It includes any usufruc every species <,f estate, real and personal: ii/c- tuary interest, whether leasehold or mere ri -hi Keon V. Bi^bre, 9 Cal. 142; Crandall v. Blen, of pos<;ession: S/atev. Moore, 12 Id. 53. As^tt 1.3 Id. 15; Davis v. Mitchell, 30 Id. SI. It is the meaning of "property " for the purposes ol to 1)6 noted that the word "property" is uot taxation, see Pol. Code, sec. .SG17, and note. here used in its appi-opriate meaning as an R32.I property: Sec sec. 608, and note, interest in a thing, and not the thing itself. Personal property: See sees. CG3, 953^ •'I'roperty" as applied to lands embraces all et seq. titles, legal or etpii table, perfect or imperfect. Tranchisea as property: See sec. 388, a n^e, Leese v. tiar/:, 20 Id. 3S7; Teschemacher v. and note. 655. In what property may exist. Sec. 055. There may be ownership of all inanimate things which are capable of appropriation or of manual deliveiy; of all domestic animals; of all obliga- tions; of such products of labor or skill, as the composition of an author, the good-will of a business, trade-marks and signs; and of rights created 01 granted by statute. In what property may ezist— The sea, Products of the mind: See sees. 980, j30s«, the air, and the like cannot be the subject of et secj. ownersliip. Every one may enjoy them, but Trado-marks: See sec. 991, post. no one has an cxcfusive riglit in them: Lou v. Good-VT-ill: See sec. 993, post. Law Diet., tit. Property. With respect to the Titlo deeds: See sec. 994-, post. easements of li^dit and air, and the diflerence Domestic animals, larceny of: See ITar' which prevails in tiiis country from the views rhxjioii v. Miles, 11 Kan. 480; S. C, 14 Am, eiitertaint'd upon the subject in (Jreat Britain, Pep. 3.35, and note, whence it appears that a Bee Storty v. Odin, 7 Am. Dec. 40, and note; dog may be the subject of larceny: See I'eu.'U Mahrm v. Brown, 28 Id. 401, aud note; see sec. Code, sec. 491. SOI, post, subd. 8. 656. Wild animals. Sec G56. Animals wild by nature are the subjects of ownership while living, only when on the land of the person claiming them, or w^hen tamed, or taken and held in possession, or disabled and immediately pursued. Animals ferae natixrag.— Wild bees in a bee- tree stands: Ferguson v. Miller, 13 Am. Dec. tree belong to the owner of the soil where the 519. Wild geese which have been tamed aixd Orv. Code— II i?,\ S§ 657-660 PROPERTY IN GENERAL. Piv. II, Pakt I, have straj'cd away, but without regaining their natural state, may be the subject of an action of trover: Armory v. Flyii, 6 Id. 316. Doves are animals ferce naturce: CommonweaWi v. C'hace, 19 Id. 34S. Mere pursuit gives no right of property in wild animals: Piersou v. Post, 2 Id. 26i. The above section requires that the 657. Heal and personal. Sec. 657. Property is either: 1. Real or immovable; or, 2. Personal or movable. Origiu of the terms "real" and "per- BOlial" as applied to property. "Though the term ' real,' as applied to property in distinction from personal, is now so familiar, it is one of fomewhat recent introduction. While tlie feu- dal law prevailed, the terms in use in its stead ,weF,'3 lands, tenements, and hereditaments. These acquired the epithet of ' real ' from tlie nature of the remedy applied by law for the re- .covery of them, as dlstingal&hed Lum that pro- vided in case of injuries, contracts broken, and the like. In the one case the claimant c de- mandant recovered the real thing sued for- -the .Jaud itself — while ordinarily in tlie other he animal should be disabled and pursued. Pos- session of wdd animals, to create a jiroperty in them, does not mean actual bodily seizure, but dominion over them which will prevent their escape: Piyrson v. Post, supra. Larceny of -wild animals: See Oraer v. Storms, 18 Am. Dec. 553. could only recover recompense in the lorm of pe- cuniary damages. The term, it is said, as a means of designation, did not come into general use until after the feudal system had lost its hold, nor till even as late as the commence- ment of the seventeenth century. One of the earliest cases in which the courts applied the dis- tinctive terms of ' real' and * personal ' to estates without any words of explanation is said to have been that of Wind v. Jeykl, 1 P. Wms. 575; Williams on Real Prop. 6, 7, note c;" Bouv. Law Diet., tit. Real Property. "Immovable" and " movable," in the sense above used, come to us from the civil law: Id. f658. Real property. Skh. r..'^8. Real or immovable property consists of: ^1. Land? 2. That which is affixed to land; 3. That which is incidental or appurtenant to land; 4. That which is immovable by law. Land defined: See sec. C50, infra. Appiirtenanccs: See sec 662. xtures: See sec. 660, hij'ra, et seq. *659. Land. . Sec. 659. Land is the solid material of the earth, whatever may be the ingre- dients of which it is composed, whether soil, rock, or other substance. ' 660. Fixtures. Sec. 6G0. A thing is deemed to be affixed to land when it is attached to it by roots, as iu the case of trees, vines, or shrubs; or imbedded in it, as in the case ' of walls; or permanently resting upon it, as in the case of buildings; or per- manently attached to what is thus permanent, as by means of cement, plaster, ■ nails, bolts, or screws. Fixtures. — The code commissioners, in their note, Siiy: "Sections 058, GOO, and 1013 of this code support the general rule that fixtures once attached to the freehold become a part of tlie realty." And in their note to section 1013, they say: "The united application of the fol- lowing requisites is perhaps the safest criterion of a fixture: 1. Actual annexr.tion to the realty, or something appurtenant thereto; 2. Appro- ■ priation to the use or purjjose of that part of the realty with which it is connected; 3. The intention of the party making the annexation to make the article a permanent accession to the freehold; this intention heing inferred from the nature of the article affixed, the relation and situation of the party making the annex- ation, the structure and mode of annexation, and the purpose or use for which the annexation has been made." In the draught of the code the commissioners say, in a note to .section GGO: "By California and Nevada decisions this i-ule has been a little modified, so as to make the question of fixtures depenil somewhat upon tiie intent or j^urposes of the party in erecting buildings for temporary use. It is thouglit best, however, to preserve the common-law rules in terms as contained iu tins section." The question whether the articles in contro- versy are fixtures cannot be raised when the ovvuer of the realty to which they are alleged to be affixed is not a party: Murchv. McKoy, 5G Cal. So. The general rule is, that what is once annexed to the freehold becomes parcel thereof, and passes witli it: Sands v. Pfe'iffer, 10 Id. 238; but this rule is subject to the in- tention of tlie parties, and varies with their relations. Chattels may be annexed to the real estate and still retain their character as personal property: Ilendy v. Dinker/ioJ] 57 Ui 1&2 Title I.] NATUKE OF PROPERTY §§ 661, 662 3; Tift V. Tlorton, 53 N. Y. 3S0; Voorhees v. AlcG miis, 48 Id. 278. The intention is an im- portant circumstance to consiiler; if ib is the intention that the chattels sh;ill not, by annex- ation, become a part of the freehold, as a gen- eral iiilo they will not: Same citations. And holding tliat the intention of the parties is of controlling importance in determining whether a chattel has become an irremovable tixture are the recent cases: Fratt v. Whitfier, fiS Cal. 126; Arnold V. Croicder, 81 I.l. 56; Ilntcldngs v. Mcu^ler-ton, 43 Tex. 551. " It is a well-settled rule of la«-," says Judge McKee in the case from 58 Cal. 126-132, supra, "that parties theaiselves may, by express agreement, fix upon chattels annexed to realty whatever char- acter they may have agreed upon. Property which the law regards as fixtures may be by them considered as personalty, and that which in Luv is known as personalty they may regard as a fixture," This rule must be taken with the C|uaiification stated in Ilemly v. Dlnh<>rhoff^ hi Id. 3, that the subject or mode of annex- ation l/e not such that the attributes of personal property cannot be predicated of the thing in controversy, or that the chattel be not so merged in the realty that its identity as per- BonaUy is lost. March v. McKoy, 56 Id. 85, presen-ed peculiar facts: An engine leased from the plaiiitifF was affixed to the land of a third person; it was in tliis condition bought at a sale under a mechanic's lien by still another person, the defendant; as between the plaintiff and this purchaser it was held that the engine was pers;inalty, the owner of the land not being a party to tlie proceeding, to say nothing of the validity of the foreclosure proceedings. In determining whether a thing is a fixture or nob, the relation of the parties must be con- sidered. As between vendor and vendee, the rule for ascertaining what is a fixture is always construed strongly against the seller: Frail v. Whdfier, 58 Cal. 120; ^ferriU v. Judd, 14 Id. 59; McGrearij v. Osborne, 9 Id. 1 10. And see the note to Gray v. JJo'dshlp, 17 Am. Dec. 686, where the subject is considered in connec- tion with the rights of heirs and executors, mortgagors and mortgagees. As between landlord and tenant, it is well Bettled that the latter may remove fixtures erected by Iiim for the pumoses of trade, orna- ment, or domestic use: IV/iipley v. Dnoey, 8 Cal. 36; McGreary v. Osborne, 9 Id. 119; Mer- ritt V. Jvdd, 14 Id. 59; Taylor's Land. & Ten., sees. 644 et seq. ; Ewell on Fixtures, c. 3. The view generally taken is that the annexa- tion of a chattel to the freehold by the tenant is a conditional gift to the landlord, which may be defeated by its subsequent removal during the term, but which becomes absolute if the premises are surrendered without its being re- moved: Beers v. St. John, 16 Conn. 322; Skite y. Elliott, 11 N. H. 540; Reynolds v. Shulcr, 5 Cow. 323. If the tenant, not having severed the fixtures, voluntarily quits the premises at the end of the term, without any special agree- ment with his landlord, the right to remove is lost: Merrill v. Judd, 14 Cal. 59; Doslul v. Mc- Coddon, 35 Iowa, 318; Lounhran v. Ross, 45 N. Y. 792; Dninway v. Cobb, 99 Mass. 450; Cromie v. Hoover, 40 Ind. 49. A new contract of lease without a reservation in favor of the tenant of the fixtures erected is considered a surrender of the premises and forfeiture of the rislit of removal: Merrill v. Judd, 14 Cal. 59. This principle was extended, in Marks v. Ryan, 63 Id. 107, to the case of a building erected by the lessee on the leased premises, and which was there held to pass to the lessor by a renewal of the lease without any reservation therein by the lessee of his right to the structure. See the subject of fixtures as between landlord and tenant discussed in llolmea v. Treniper, 14 Am. Dec. 241. A tenant, by giving a name to a hotel as a sign of the business, does not thereby m.aka the name a fixture of the building and the property of the landlord upon the expir::tion of the lease: Woo heard v. Lazar, 21 Cal. 448. Natiire of annexation. — The strictness of the earlier ride, requiring a structure to be at- tached to the soil in order to be become a fix- ture, is now relaxed: Ilaices v. Lathrop, 33 Cal. 49.3. An addition to a house is a fixture: Id. And see Grciy v. Iloldship, 17 Am. Dec. 686, for a note upon the nature of the annexa- tion necessary to make a fixture. A building set upon blocks resting on the ground is per- sonal propert}', and replevin lies to recover it: Pennybecktr V. McDoiujcd, 48 Cal. 100. Like- wise is a portable fence made of posts and boards, and resting on the surface of the ground: Id. An engine fastened by bolts to a timber, itself notched into sills which were imbeddeil in the soil, is a fixture: McKitrnan V. Utsse, 51 Id. 594. 661. Fixlares attached to mines. Sec. GGl. Sluice-boxes, flumes, liose, pipes, railway tracks, cars, blacksmith Bhops, mills, and all other macliinery oi* tools used iu working or developing a laine, are to be deemed affixed to the mine. 662. Appurtenances. Sec. GG2. A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as iu the case of a way, or watercourse, or of a passage for light, air, or heat from or across the laud of another. nant thereto: Loicer K. R. D. Co. v. Kings R. <£.• F. (J. Co., 03 Id. 40S. Water flowing over one's land is part and parcel of it, not appur- tenant to it: St. JleU-na W. Co. v. Forbes, 02 Id. 182. A wharf aud chute erected by a stranger to the title are nob "incidental or appurteuaut " to the laud, ou par*-- of which 103 Appurtenances. — It is the nature and use of the thing annexed which makes it appur- tenant or not, as the case may be: Farmi^r v, Ukiah Water Co., 50 Cal. 11, where a right to use water for the benefit of granted prem- ises was held to pass as an appurtenant. The right to have water flow in a ditch is appurte- §§ 663-670 PROPERTY IN" GENERAL. Piv. n, Part I, the wharf stands: Cohtm v. Ames, 52 Id. 3S5. "A matterappendantarises only by prescription, while a matter appurtenant can be created at any time: 3 Kent's Com. 404; 2 Vin. Abr. 51)4:" Code commissioners' note. That appurtenants may be of a corporeal as well as incorporeal nature, see Farmer v. Utiah Water Co., 56 Cal, 11, 14. Land cannot pass as appurtenant to land: Armstromj v. Dubois, 90 N. Y. t)5; Si. Louis Brhlijp Co. V. CartU, 103 111. 410. Easements and servitudes: See sees. 801 et scq., jiof't. What passes as appurtenant: Roe the not© to Strictltr V, Todd, 13 Am. Dec. G57. 663. Personal property. Sec. GG3. Every kind of property that is not real is personal. Personal property: See ante, sec. 14, subd. 3; and Pol. Code, sec. 3 317. Growing crops are of a peculiar character. They are not goods or chattels within tlie meaning of the statute of frauds requiring manual delivery, as they are not susceptible thereof: B>urs v. IVcbxler, G Cal. G31; /iernal V. Iloviou.% 17 Id. 541; Darin v. McFarlane, 37 Id. 034. Nor do tliey come within the pro- visions of that statute relative to sales of in- terest in real estate: Marshall v. Fer2. TITLE 11. OWNERSHIP. CllAPTEa I. OwNERb , GG9 II. Modifications of Ownership GTS m. Eights of Owners 732 IV. Termination of Ownership .►..» ..,-. 739 CHAPTER I. OWNERS. 669. Owner. Sec. GGi). All property has an owner, whether that owner is the state, and the property public, or the owner an individual, and the property private. Ihe state may also hold property as a private proprietor. 670. Property of slate. Sec. 070. The state is the owner of all land bslow tide- water, and below ordinary hi^^h-water mark, bordei'iiig upon tide- water Avithin the state; of all laud below the water of a navigable lake or stream; of all property lawfully appropriated by it to its own use; of all property dedicated to the state; and of all property of which there is no oilier owner. [Anierulineitl, approved March 30, 1874; AmeiuhnenU 1873-4, 217; ^>o^• rffeal July 1, 1874.) stat3: See Pol. Code, sees, Proparty of tli 40-4 1. Tide-ln)vU, etc, — Section cited in ••egard to sta.te's ownership of tide-lan Is in {J,il.uin v. UotikiiKj, G2 Oal. 2JD. 259. The bed of a river is within the control of the state, subject only to tie rights of commerce. Public lauds: See Pol. Code, sees. 3395 et seq. B:(''iral: See p-isf, sec. 140'». Watsr ci3 a boundary: See note to sec. 830. IC4 Title IT, Chap. II.] MODIFICATIONS OF OWNERSHIP. §§ 671-680 671. Who may oivn properhj. Sec. 671. Any per.son, whether citizen or alien, may take, hold, and dispose of property, real or j^ersonal, within this state. [Amendmenl, approved March 30, 1874; Amendments 1873-4. 217; took effect July 1, 1874.] Alien. — The disability of aliens to hold and matter between the alien and the goveminent: dispose of land within this state is hereby re- Raronillat v. Sansevnin, .32 Id. 376. moved. Article 1, section 17, of the former The above section extends to resident aliens constitution, pursuant to which the above sec- only. Non-resiilent aliens cannot inherit land tion was passed, is general, and operative in in this state: Siems^en v. Bofcr, 6 Cal, '2o0; but favor of all foreign residents. The constitu- see next section and sec. 1404, po.si; although tion of 1870, article 1, section 17, qualifies the they may purchase and hold land until inquest right of foreign residents with respect to prop- of office found: Norr'n v. //o///, 18 Id. 217. erty, by limiting the provision to foreignei-s of The alienage cannot be set up against him in a the white or African race eligible to become collateral proceeding: Ramirez v. Kent, 2 Id. citizens. The disability of alienage is now very 558; RacouiUaty. Saiisevain, 32 Id. .376. generally removed in this country: See Elmon- As to the necessity of inquest of office before dorffv. Carmichael, 14 Am. Dec. 86, and note, title vests in the sovereignty, see note to Com- By common law an alien couidnot inherit land: monwcalth v. Illto, 20 Am. Dec. 233, and Cali> Norri-t v. Iloyt, 18 Cal. 217; Farrellw Enriijht, fornia cases, supra. 12 Id. 4,')0; but could purchase and hold lands Alien cannot hold of&ce: Walther T. until inquest of office found: Peoph v. Folsom, RuhoK, 30 Cal. 185. 51<\. 'S'J'A; Aferlev. Ji!alhew.s,2ii h\. 4oo. His Alien's right to inherit property: See right to hold laml could not be ([uestioned by sees. 1404, post, et seq. an individual in collateral actions, it was a 672. Aliens inheriting mud claim loithin Jive years. Sec. G72. If a non-resident alien takes by succession, he must appear and claim the property within five years from the time of succession, or be barred. The property in such case is disposed of as provided in Title VIII. , Part III. , Code of Civil Procedure. Code of Civil Procedure, sees. 1260 et seq. and inheritance of property, as native-boi'ii cit- Nou-resident aliens. — The constitutional izens. " Tlie legislature cannot abridge tliis provision, section 17, aiticle 1, provides: " For- privilege, but it is not disabled fi-om extending eiguers who are, or may hereafter Ijecome, bona it or adding other privileges; People v. Roytre, file residents of this .state, shall enjoy the same 13 Cal. 165. rights, in respect to the possession, enjoyment. CHAPTER II. MODIFICATIONS OF OWNERSHIP. A£TiCL£ I. Interests in Property — -. . . . C78 II. Conditions of Ownership 7<)7 III. PiESTKAiNTS UPON Alienation 715 IV. Accumulations - » ►.- .-. 722 ARTICLE I. INTERKSTS IN PHOPEUTY. 678. Ownership, absolute or qualified. Sec. G78. The ownership of property is either: 1. Absolute; or, 2. Qualified. 679. When absolute. Sec. G7'J. 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. "Thus the use of gunpowder is restricced by general laws, but its ownership may, neve)iho« less, be justly called absolute:" Commissioners' note. 680. Whni qualified. Sic. G80. The ownership of property is qualified: 1. When it is shared with one or uiore persons; 1G5 §§ 681-685 PROPERTY IN GENERAL. [Div. II, Paet I, 2. "Wbon the tiine of enjoj'ment is deferred or limited; '6. "When the use is restricted. 631. Several oivnerf]ilp, what. S :c. 08 1. TJie ownershiii of property by a single person is designated as a sok- or sevei'al ownership. 682;. Ownersldp of several persons. Si:c. GS2. The ownership of property by several persons is either; 1 Of joint interests; 2. Of partnership interests; 3. Of interests in common; 4. Of community interest of husband and wife, 683. Joint interest, what. Sec. G83. A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. infra. The act of 1855 was not retros])ective: Dewey v. Lambii^r, supra; Greer v. B'onch'cr, supra. In De Witt v. San Francisco, 2 Id. 259, it was sail! tliat corporations couM not be joint tenants. Provisions similar in eftect to that of the above section prevail in most of the states, the tendency in this country being to presnmo in favor of a tenancy in common, and to requiro express words to create a joint tenancy: See the statutes collected in the foot-note to sectioa 35 of Freeman's Cotenancy and Partition. Joint tenants. — The code commissioners Bay: "This jjrovision is intended to confine the right of survivorship to cases in whicb its crea- tion was clearly intended. " The section isfound- ed uijon Stats. 1855, 171, sec. 1. Prior to that act it was not necessary to the creation of a joint tenancy that it should be expressed to be such in the instrument creating tlie tenancy: Greer V. JJlanchar, 40 C'al. 194; but such express declaration, both under that act and the code, is now essential: Dewi-y v. Lamhier, 7 Id. 347; Bowen v. May, 12 Id. 348; and see sec. G86, 684. Partnerahip interest, what. Sec. 684. A partnership interest is one owned by several persons, in partner- ship, for partnership purposes. Partnership: See potst, sec. 2395 et seq. 685. Interest in common, what. Sec. G85. An interest in common is joint ownership or partnership. Tenancy in common: See sees. 683 and 686. Tlie following oases afford illustration of tenancies in common: Two corporations may hold ands in common: De Witt v. San Fran- cis'O, 2 Cal. 289; and so also a man, his wife, and their child: Gihlin v. Jordan, 6 I<1. 416. The following are tenants in common: men who work a farm on sliares, the one the owner of the land, the otlier doing the worii; and also the grantee of the owner and the latter, although such grantee took under an execution sale of the owner's interest: Bernal v. JIooiou>i, 17 Id. 641; the grantee of a specific quantity of a larger tract, but not yet segregated, and the grantor: Wallare v. Miller, 52 Id. 055; Law- rence V. Ballon, 37 I<1. 518; the purchaser at an execution sale of a partner's interest and the coi)artner: McCauley v. Fulton, 44 Id. 356; the grantees of co-tenants: Beeil v. Spicer, 27 Id. 57; a husband's grantee and the wife, where she held an undivided portion as her separate estate: Ewald v. L'orbett, 32 Id. 403: a mother and child claiming under deed from the hus- band: Drenliam v. Davidson, 51 Id. 352. As an example of a tenancy in common of personalty, see Hewlett v. Owen, 50 Cal. 47^, one owned by several persons, not in where the parties were deemed co-tenants of the wool from certain sheep owned by one of the parties, and leased to tiie other under an agree- ment to divide the proceeds from the sale of the wool. Either tenant in common may sell his inter- est regardless of tiie consent of his co-tenants, and without aff'icting their legal relation be- yond the going out of the one and the coming in of the other: Bradley v. Harkness, 26 Cal. 69. In California a tenant in counnon may convej' his interest in a particular portion of the whole, descril)ed by metes and bounds: Stark \. Barrett, 15 Id. 361; Gates v. S'dnion, 35 Id. 588; Sniter v. San Francisco, 36 Id. 115; Gales V. Salmon, 46 Id. 362. So also in Ohio: Whitr\ Lessee v. Say re, 2 Ohio, 112; Elienezer Pre-ntiss'-i (Jose, 7 Id. 473: Dennison v. Foster, 9 Id. 126; in Virginia: RolnnAt v. Preston's Heirs, 2 Roll. (Va. ) 278; and in Missouri: Barnhart v, Caniph'll, ^0 Mo. 597. Whereas, in many of tha states the rule is otherwise, such a deeil being declared void: Freeman on Cotenancy, sue. 199. But in California and other states, where a similar «loetrine prevails, the deed of a co-ten- ant by metes and bounds cannot prejudice the 166 TiiLE II, Chap. II.] MODIFICATIONS OF OWXE^SniP. 686 rights of the other co tenants. It docs not attect the right of partition: "The conveyance of a special location may be disre^^'arded, if it be found necessary to do so, in order to make a just and equitable allotment of the lands:" Gates V. Salmon, 40 Cal. 302, 37S. And see Judge Field's opinion in Stark v. Barrett, 15 Id. 301, and hifra, "Ouster." The relation of the co-tenants to each other. — The possession of one co-tenant is the p03session of all: ll'ariiig v. Crow, 11 Cal. 300; Knox V. Marshall, 19 Id. 017; Colmnn v. Clements, 23 Id. 245; Owtn v. Morton, 24 Id. 373; Miller v. Meyers, 40 Id. 535. Eacli has the right to enter and occupy the whole of the common lauds, and every part thereof: Tevia V. J licks, 38 Id. 234; Carpentier y. Webster, 27 Id. 524. But it will be presumed that the ten- ant in possession holds for the benefit of his co-tenants: Cases supra; Caiman v. Clements, supra; Owen v. Morton, 24 Id. 373. And the tenant in common out of actual possession has the right to rely on the assumption that the possession of his co-tenant is his possession un- til iuformed of the contrary by express notice, or by acts and declarations equivalent to no- tice: A'jiiirre v. Alexander, 58 Id. 21 ; Miller v. Meyers, 40 Id. 535. If one who takes posses- sion unlawfully afterwards becomes a tenant in common, the moment he becomes such tenant his possession loses its hostile character, and is presumed to continue amicable until the con- trary is made to appear: Carpentier v. Mcn- denhall, 23 Cal. 484. A tenant cannot buy in an outstanding title for his ovrn exclu- sive benefit; his co-tenant is entitled to come in and elect to share the benefit: Mandeville v. Solomon, 39 Id. 135. So also as to tax-title: Mills V. Tukey, 22 Id. 373. See the note in 15 Am. Dec. 048, 090, as to the effect of purchas- ing by a tenant in common at a sale of the com- mon land for delinquent taxes. Custer. — The presumption that one co-ten- ant's possession is the possession of all is rebut- table by various circumstances. A refusal, after a proper demand, by a tenant in common in pos- session, to admit his co-tenant, is itself an ous- ter, and d^sjienses with the necessity of further proof: Mi.ler v. Myers, 40 Cal. 538; Greer v. Tripp, 50 Id, 209. And in an action to be ad- mitted into possession, and a denial of tlie plaintiff's title and right, an entry establishes an ouster: Same citations. A denial of the title of a co-tenant by the tenant in possession is eviileine of an ouster: Carpentier v. Gardiner, 29 Id. ICO; Speet v. Grerpj, 51 Id. 198; lUckard V. J( Inison, 51 Id. 545. Any act of the co-ten- ant ill thecxelusive possession, which manifests an intention to hold exclusively for himself, is equivalent in law to an ouster: Owen v. Mor- ton, 21 Id. 373. Mere proof of exclusive pos- session, and that tenant does not claim un- der his co-tenant out of possession, is not BuSicient to sliow an ouster: Id. As to tiie dif- ference between the finding in a special verdict of an outer and of probative facts which go toward establishing an ouster, see Packard v. Johnxon, 57 Id. 150; Cairfientier v. Mendenha'l, 23 Id. 484; Carpentier v. Webster, 27 Id. 524. Taking actual jiossession of land under a deed which purports to convey the whole tliereof, under a belief that it conveys tho whole whiie in fact it conveys but an undi- vided portion, is not an ouster of a tenant ia common: Seaton v. Sun, 32 Cal. 481. The de- cision in this case is, however, not approved in linger v. Mooney, 03 Id. 580, 597, where, after an elaborate consideration of the question, the court lield tliat an entry and occupancy under a deed for the entire tract, executed by but one of the co-tenants, was an ouster of the other. The deed from the co-tenant was re- corded. See a lite case, Datli v. Valdes, West Coast Rep. 889, where the mere possession by a vendee of one tenant was held not notice to the co-tenant, and not an ouster. For considerations of the question of ouster by a co-tenant, see the notes to Gillasjiie v. Os- bvrn, 13 Am. Dec. 140; Porter v. IIon])er, 29 I<1. 484; Freeman on Cotenancy and Partition, sees.' 300 et seq. ; 2 Waterman on Trespass, sec. 940. Actions betv7een co-tenants. — One tenant cannot sustain an action of forcible entry and detainer against another for holding over: Lick V. Donni'll, 3 Cal. 59. Trover or assumpsit for money had and received will lie for selling the common chattel: Williams v. Chculhourne, Id. 559; but not an action for goods sold and deliv- ered: Id. Whether an action for an account- ing will lie between co-tenants, see I'lco v. ('olumhcrt, 12 Id. 4C0, refusing to entertaia such a proceeding: Goodenow v. Ewer, 10 Id, 401; Abel v. Love, 17 Id. 2.33; Clark v. Jones, 49 I<1. 018. Ami see Chambersv. Chambirx, 14 Am. Dec. 580, in note, where the authorities pro and con are collated. That co-tenant can- not assail the common title, see Ohiey v. Sow- yer, 54 Cal. 379; Hornheimer v. Baldwin, 42 Id. 27; nor avail Isimselfof the statute of limita- tions where lie has done nothing tantamount to an ouster, see ^IcCauUy v. Harvey, 49 Id. 497. As to ejectment between co-tenants, see also Ewald V. Coibett, 32 Id. 493; Lawrence v. Bed- lov, 37 Id. 518. Relation of tenants iu common to third person. — A tenant in common is entitled to the [tossession of tlie entire tract as against all persons but his co-tenants and parties cLiimiug under them: Hart v. Eohertson, 21 Cal. 340; Clark V. Iluher, 20 Id. 190; Muller v. Bogqs, 25 Id. 175; Treat v. Reilly, 35 Id. 129; Wdl- ioms V. Sulton, 43 Id. 05. He may maintain ejectment for the entire premises: Torichard v, C'rou', 20 Id. 150; Mahovey v. Van Winkle, 21 Id. 5.32; Collier V. Corbelt, 15 Id. 183; may re- cover the possession of tlvc entire premises aa against a trespasser, without joining his co-ten- ant: Treat v. J:eilly, .35 Id. 129. Partition: See Code Civ. Proc, sees. 752 et seq. Husband and wife as tenants in com- mon: See sec. 101. Devise or legacy to two or more makes them owners in common: See sec. 1350. 686. WJwl inter est s are in common. Sec. G86. Eveiy interest created in favor of several persons in their own right ' is an interest in common, unless acquired by them in partnership," for partnership purposes, or unless declared in its creation to be a joint interest, as provided in BGction six hundred and eighty-three, or unless acquired as community property. . 107 §§ 6S7-G05 PROPEIITY IX GENERAL. [Div. II, Part I, 687. Community property. Skc. G87. Communit}' properh' is property acquired by husband and wife, or eiLlier, during marria.!^e, when not acquired as the separate property of either. In tliG original draught of this section the estates which they may acqiiite (lai-in;j tlie there wcro addcJ the voiils " or as oouiniou or marriage, either hy duuations made j )intly to joint property of both." And to thi'i sectio.i tiicm both, or by pareliase, or ia any other was appcn iccl the following note: "The com- simdar way, even alfchongli the purchase be niunity property consists ot the profits of all only in the name of one of tlie two, and not of the effects of which the luisuand lias the ad- both, because in that case tlic pGri.)d of time minitiir.'ion and enjoyment either of right or when the purcliaso is made is alone attended to, in fact, or the jn'oducc of the reciprocal m lui- and no' t'le person who made the purclniso." try and labor of both husband and wife, and of Coinmuaity pro^^erty: iSee sec. \iji, ante, 68S. Interests as to time. tizc. CSS. In respect to th9 time of enjoyment, an interest ia property is either: 1. Present or future; and, 2. Perpetual or limited. Inte: est as to time of enjoyment. — "These Upvell v. Hulmj, 1 P. Wms. Gol; see Phelps distinctions exist in regard to p3isoual property v. Pond, 2.3 N. Y. (J9; S. C, "28 Barb. \1\; as well as real: WcscMt v. Cad;/, 5 Johns. Ch. /{■nicv. A-'tor, 5 Sandf. 437; Uri'dcnvuix. Schcr- 334; GU'cs;>ic V. MUlcr, Id. 21 ; Randall v. Ras- morhorn, 3 Sandf. Ch. IS) ; M'tson v. Jones, 2 aell, 3 .Mcriv. 190; I/i/dev. Pit. Sec 7C0. A mere possibility, such as the expectancy of an heir appai'ent, is not to be deemed an interest of any kind. "Jrvrkxon v. Bradford, 4 Wend. 019; Tooley v. Smith, 41 Barl). 404; MUler v. Einans, 19 N. V. Ulub.'e, 2 Hiil (N. Y.), 641; see Condtrman Y. 384:" Commiasiouers' note. 'JOl. Infi'rrsts in real proper tij. Sec. 701. In respect to real or immovable property, the interests mentioned in this chapter are denominated estates, and are specially named and classilied in Part II. of this division. "It has lieen deemed unadvisal lie to apply there are precedents for such a course: " Cona- the technical name of estates in real property mibsioucrs' uote. to interests in personal property, although 702. Interests in personal property. Si:c. 702. The names and classification of interests in real property have only such application to interests in personal property as is in this division of the code expressly provided. 'JOS. What future interests are recognized. Sec 703. No future interest in property is recognized by the law, except such as is defined in this division of the code. ARTICLE II. CONDITIONS OF OWNERSHIP. 707. Fi.rinq the time of enjoyment. Sec 707. The time when the enjoyment of property is to boffin or end may be determined by computation, or be made to depend on events. In the latter case, the Mijoyment is said to be upon condition. Cond:tion3 generally.— Conditions are pri- tlie estate granted has a qualification annexed ma-.ly: 1. ( on^litions in law, heinLT sucli onn- \vlR-r<-by the est ite shall com inMice, he enlarged, ditinis as arc annexed to an estate l)y the law; or djfo ite I, upon perfonn:iuce or bn-ach of and. 2. Corditi ns in dcevl. "An estate on s^uch (juiHlication or condia >ii." And see COM 'ition i'l dead is thus delined in ITA'W'-r v. G:-eeul. C.ai., tit. 13. c. I, 2; 4 Kent's Com.. sec8» \Yalt('i\ 2 Conn. 100: 'An est.ate on condition 121 ft seij ; Bouv. I^w Diet., tit. Cu.idition. expiessed in the grant or devise itself is whjre There are certain technical wortls proper 109 §3 708-710 PROPERTY IN GENERAL. [Div. n, Part 1, in themselves to make a condition; these are siih ronditioiic, proviso, itaquod: Co. Lit. 203 b; and quod ai conl/nqal, if followed bv a clause of re-entry: Id. 204' b; Staidei/ v. CoU, 5 Wall. 119; Whrelerv. Walker, 2 Conn. 19G; Hooper V. (Jummings, 45 Me. 359; Paschall v. Pasn- mope, 15 Pa. St. 295; Rawaon v. Inhahitanls of School DM. No. 5, 7 Allen, 125; Warner v. B^.intetl, 31 Conn. 468; Gray v. Blanchard, 8 Pick. 284. These words are not essential, however; any words which clearly indicate an intention to create an estate upon condition, will suffice, regard being had to tlie whole of the deed or will in which they occur: Bacon v. Huvthigtoii. 14 Coim. 92; Ilapijoodv. Uomjhton, 22 Pick. 480; Le>i>^ee of Woman v. Teagarden, 2 Ohio St. 380; Wallers v. Brediri, 70 Pa. St. 235; Undcrhill v. S. <£• W. B. R. Co., 20 Barb. 458; Ilani'dtoii v. Kneeland, 1 Nev. 40. As the policy of the law is to render the alienation and transfer of property as free as possible, conditions are not favored in law. Tlierefore, whenever words can be construed in- « "708. Conditions. Sec. 708. Conditions are precedent or subsequent, ning, the latter the ending-, of the right. differently, as a condition, reservation, or a cove- nant, the tendency of the courts is to construe them rather as eitiier of the latter than as the former: Chapin v. School DUt. No. 2, 35 N. H. 445; lloyt v. Kimball, 49 Id. 320; Wheeler v. Dascomb, 3 Cush. 285; Thornton v. Travnnd', 39 Ga. 202; Pasrhall v. Passmore, 15 Pa. St. 295; Kruetzx. Mc Knight, 51 Id. 232. A con- dition cannot be ingrafted upon a conveyance by parol: Marshall County High School v. Iowa Evangelical Synod, 28 Iowa, 3i50; Thompson v. Thompson, 9 Id. 323; Rogers v. Sebastimi County, 21 Ark. 440; Moser v. Miller, 7 Watts, 156; Chapman v. Gordon, 29 Ga. 250; Dunbar v. Siclder, 45 Iowa, 384. See the valuable note to Gray v. Blanchard, p. 123 of 1 Sharswood & Budd's Leading Casea on Real Prop. One who has deeded his realty absolutely cannot thereafter charge it with conditions: Alemany v. Daly, 30 Cal. 90. Coaditional legacies: See sees. 1345, post, et seq. The former fix the beffin- Conditions precedent and subsequent. — Generally, a condition is precedent where the act of condition precedes the vesting of tlie es- tate, and is subsequent where tiieactis capable of performance as well after as before tlie vest- ing the estate: Finlay v. King^s Lessee, 3 Pet. 346: Martin v. Ballon, 13 Barb. 119; Under- hill V. S. W. R. R. Co., 20 Id. 458; Parker v. Nichols, 7 Pick. Ill; Burnet v. Strong, 26 Miss. IIG; Beil Co. v. Alexander, 22 Tex. 350. The clearly manifested intention of the testa- tor or grantor will work a contrary construc- tion: Same citations; Piatt on Covenants, c. 2, sec. 5. A condition precedent must be strictly per- formed before the estate can vest or be en- larged: Bramin v. Mesick, 10 Cal. 95. A con- ve^'ance upon condition passes the title to the grantee, subject to be defeated by a non-per- formance of the condition: Sped v. Gregg, 51 Id. 138; and see Clayton v. Walker, 10 Id, 450, where non-paj'ment of the consideration was sought to be operative to retransfer the land: 2 VVashb. on Real Prop., 4th ed., 3. Conditions subsequent are not favored. — They "go in destruction and defeasance of estates, are odious in law, and shall be taken strictly:" Fraunces' Case, 8 Co. 90 b; Michigan State B'tnk v. Hastings, 41 Am. Dec. 549: Weir V. Simmons, 13 N. W. Rep. 873 (Wis.); Ta^jlor v. Sutton, 15 Ga. 103; Voris v. Renshaw, 49 Id. 425; Hooper v. Cummings, 45 Me. 359; Laheree v. Carleton, 53 Id. 211; Gleen v. Davis, 35 Md. 208; Gndherry v. Sheppard, 27 Miss. 203; Emmerson v. Simpson, 43 N. H. 475; Hoyt v. Kimball, 49 Id. 322. For a discussion of conditions subsequent, when and at whose instance tiiey may be set in motion to defeat an estate, see the note to Cross V. Carson, 44 Am. Dec. 742. See also the note in 1 Sharswood & Budd's Lead. Cas. on Real Prop. 123 et seq. Entry for condition broken: See 1 Shars- woo I & Budd's Lead. Cas. on Roal Prop. 143. Conditional obligations: See sees. 1434- 1442, p 'St. ConditJonal limitation — Remainder operat- ing to abridge precedent estate: sec. 778, post. 709. Certain conditions precedent void. Sec. 709. If a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist. If it requires the perfox'mance of an act not wrong of itself, but otherwise unlawful, the instrument takes effect and the condition is void. "All the instances of conditions against law are I'educible under one of these heads: 1. To do something that is malum in se or malum prohibitum; 2. To omit something that is a duty; 3. To encourage such crimes and omis- sicms: 1 P. Wins. 189; Greenl. Cru., tit. 13, c. 1, sec 19:" Commissioners' note. A deed to be null and void if the grantee does not procure two witnesses to testify to certain facts is a conveyance of t'.ie legil title with an unlawful condition subsaquent: Pattersm v. Doaiier, 43 Cal. 3'33. See tlje note to Cr>ss v. Cai-soa, 41 Am. Dec. 742; an I see next seotioa and note for further consideration s of these questions suggested by the above section. 710. Conditions restraining marriage are void. Sec. 710. Conditions imposing restraints upon marriage, exG3pt upon the marriage of a minor, are void; bat this djas nob affect liinitatiaiii w'airj the 170 Title II, Chap. II.] MODIFICATIONS OF OWXEHSHIP. §§ 711-715 intent was not to forbid marriage, but only to give the use until maniage. [Amendment, approved JlIa7X-h 30 , 1874; Ahiendmentti 1873-4, 218; took effect July 1,1874.] Conditions in restrciint cf marriage. — This Bection as originalh' adopted was: "Sec. 710. Conditions imposing restraints upon mariia^'o, except upon the mat riage of a minor, are void." To this section the comniissicncrs aj)pended tho following note: " Note. — In tiie first report of this code to the legislature this section ix-ad as follows: 'Sec. 710. Conditions imposing restrains upon marriage, except upon the mar- in tliis particular restored the section to its origin:d reading in the proposed code, leaves uo douht but that the limitation of an estate to a widow so long as she remains uninairied is good. Decisions which recognize the distinc- tion between a condition subsequent divesting an estate by the marriage, and sucli limitations upon the duration of tiie enjoyment of the estate as are here approved of, are: Phillips v. riage of a minor, or of the widow of the person Me.dbur;/, 7 Conn. oGS; Jfoopa v. Dundas, 10 by whom the condition is imposed, are void; but t!)is does not affect limitations where the intent was not to forbid marriage, but only to give the use unt.l marriage.' This was the rule of the common law. The commission deem it advisable to modify it. By the com- mon law a condition restraining a widow from a second marriage might Ije held good. The authorities as to the validity of a condition restraining a widow from marriage are con- flicting. * * * I'he commission in present- ing the above section have declared that all conditions imposing (any) restraint upon mar- riage, except upon the marriage of a minor, Pa. .St. 7.'); Mitchell v. Mitchell, 20 Md. 581; Link V. Birdived, 21 Tex. Gil; //cdtz'>i Estate, W^ Pa. St. 422; FriiKjIe v. Durddey, 14 Smed. & M. IG; CopiKuje v. Alfxandcrs Heirs, .S3 Am. Dec. \y^, in the note to which this subject is discussed. The rules which govern a devise in restraint of a widow's marriage apply to like devise in restraint of widower's marriage: Bo'^ticich v. Blades, 4 Am. Law Rec. 720 (Md. Ct. of Ap^.). J/ofjcui V. Curlin, 88 N. Y. 1G2, is an inter- esting case, holding a condition subsequent in partial restraint of marriage valid. There the breach of the condition would not have worked are void. All such restraints are odious, antl a forfeiture of the legacy in question, the will tho re."sons which are to be advanced against restraints upon matriage generally would be equally applicable to restraints upon the mar- riage of widows. Even a condition in restraint of marriage with some particular person would not providing for a devise over after breach, had it not a])peared that realty had been charged in aid of this legacy, and must needs be sold to satisfy it. Under these circum- stances, the distinction between cou'eijHs, 1 Denio, 448; Gleaxon v. Payer- treat her, 4 Gray, 348; Hall v. Tufts, 18 Pick. 4.")."). A partial lestraint upon alienation, the tained: Hill v. Hill, 4 Barb. 419; lilcWilliama V. Aisley, 2 Serg. & 11. 507; Stewart v. Brady, 3 Bush, G2.5; Steicart v. Barrow, 7 Id. 308; Cornfliiis V. Irins, 2 Dutch. 37G; Lanydon v. fiiyninis Guardian, 28 Ind. 3G0; see also sees. 71'), 772, post, and the tide on Uses and Trusts, 2)0xt, sees. 847 et seq. Many questions arising out of the restraints upon the alienation of property will be found succinctly discussed in the recent ess;\y by limitation being not umeasouable, will bo sus- Professor Gray, called Kestraints on Alienation. ARTICLE III. BESTRAINTS UPON ALIENATION. 715. now long it may he su>fpended. Sec. 715. The absolute power of alienation cannot be suspended, by any limitation or condition whatever, for a longer period than during the contin- uance of the lives of i)ersons in being at the creation of the limitation ov condi- tion, except in the single case mentioned iu section seven hundred and seventy- two. "This includes a trust of real property: Cos- II. 5G4, 563; Bm/nton v. Hoyf, 1 Denio, 5.3, 58; Ur\. Lorilard, 14 Wend. 205, 313; f/awley v. Beokman v. Boasor, 23 N. Y. 208. 310. The J'tmes, 16 Id. 121, 173, 174,208; Kane v. Gott, words ' limitation or ccmdition ' are substituted 24 Id. 641, 662, 607; Hone v. I'a/i Schavk, 20 for 'estate ' so as to include powers: See UaW' 171 §§ 716-724 PROPERTY IN GENERAL. [Div. II, Part I, ley V. Jani^x, IG Wend. 135. 173, 20S; Coster v. be the evident purpose of the provisions of the LoriUnrd,\\\i\.'.\2\,'M'i; Iloiie v. Van Srhairk, coile which limit the period witliiu wiiiuli es- 20 Id. .iiiQ, r)t)7, aGD: " CommissiDncrs' mte, tates must vest during the existence of living taken from the note appended to the New York persons simply to shorten that period as es- code, sec. "201 . tablished by the common \.x\v. Accepting tliia Soctio:is 7lo and 772 do not apply to trusts as the real intent of the statute, full force and for cliavitaljle purfjoses: E-, j)ost. Accumulations liable for debts: S^c. ^'oO. Restraint upon dispo^itiou of beneSci« ary's interest: See see. 607. Bequests of income: See post, sees. 1357f subil. o, lofJG. Annuities: See same sections. 725. Ollu^r directions, when void in part. Sec. 725. If in citlier of the cases mcntionecl in the last section the direc- tion for an acctlmulation is for a longer term than during the minority of the beneficiaries, the direction only, whether separable or not fi'om other provisions of the instrument, is void as respects the time beyond such minority. The clause from "only "to "instrument" is See, however, Klnrj v. Jitiudle, 15 Barb. 139, new, Init is sustained by Williams v. Williams, 145. 8 N. Y. 4'J5; Kitjiatrick v. Johnson, 15 Id. 322. 726. Application of income to support, etc., of minot . Sec 72G. "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 a]Dplication, may direct a suitable sum to be applied thereto out of the fund. Maintenance of •ward out of his estate: See Coilo Civ. I'l-oc, sees. 1702, 1771. " Tlie provi.-.i()iis of section 1771 of the Code of Civil rroceUure became necessary under tlie decision of the supreme court of this state in the case of Svift V. Swift, 40 Cal. 457:" Code commis- sioners' note. CHAPTER III. EIGHTS OF OWNERS, 732. Increase of properly. Sec 732. The owner of a thing owns also all its products and accessions. Seegei)ei;iry2K nt'sCcm. .^O; 2 Dla. Com. 404; Bouv. lust. 21, 29, 30. Access'oni to real property: See sees. 1013 ct seq. Accessions to personal property: See sees. 1025 et seq. 733. In certain cas''s,w]io cnlitJed to income of property. S^c 7.>3. "When, in consequence of a valid limitation of a future interest, there is a suspension of the power of alienation or of the ownership during the continuation of which the income is undisposed of, and no valid direction for its accumulation is given, such income belongs to the persons presumptively entitled to the next eventual interest. Held tc apply to personal property in G'.bnan- son, 15 Id. 322; but see Phelps v. Pond, 23 Id. V. IttddtiKjtoii, 24 N. Y.. 19; KdputrkL v. John- S3. CHAPTER rV. TERMINATION OF O'WNERSHIP. 739. Future intereHs, when dfeated. Sec 739. A future interest, depending on the contingency of the death of Kny person without successors, heirs, issue, or children, is defeated by the bii'th of a posthumous child of such person capable of tailing by succession. Sta s 1855, 171, sec. 4. or "gmndcluMren:" iSTwari v. A'/?;,'/, Meigs, 149; A child en ventre sa mere, for purposes of and in the term "persons living at the death" of a ceitain person: Uaicliusw /,'ar:lius, 2 Con. Ch. Cas. 425; /]nrl:er v. Prarce, .30 Pa. St. 173; Groc V. Ilittt'iihery, 14 Ga. 2;52. See an in- teresting review of the history and present aspect of the doctrines connecteil with infanta en ventre xa mere in the note to Harper v. Archer, 43 Am. Dec. 472, 474. Posthumous children: See sec. G93, inher tance, or wiiere its interest will he ad- vance \ is t'j be considered as living at the time of its father's death: Crisfield v. Storr, 3(5 Md. 129; Grove v. Juttevberri/, 14 Ga. 232; Mnrdlis V. Thnl/iimer. 21 Am. Dec. GG; Starlim/w Price, 16 Ohio St, 29; Land's Appeal, 85 Pa. St. 339. Thus a child en ventre saniere is included in the term '• children : " Petway v. Poioe'l, 2 Dev. & B. ' Eq. 308; Crook v. liiU, L. R., 3 Ch. Div., 773; 173 {§ 740-749 PROPERTY IN GENERAL. Pnr. n, Pakx I, Titlk m. 740. Same. Sec. 740. 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. 741. Future interests, when not defeated. Sec 741. No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or procedent 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 imposed by statute as a penalty for the violation thereof. As explanatory of this section, the code com- clares the same rule, anrl allows an estate of missioiiers say: "A contingent remaintler, re- inheritance or freehold to commence m /«<«ro.' quiring by common law a particular estate to Code of 1824, 4o9; see 4 Kent's Com. 253- Eupport it, could never be held in abeyance. 2oG. Much nice learning has been thrown If the particular estate terminated, in whatso- around the subject of contingent remainders, ever manner, before the remainder could vest, and many nice distinctions and refinements the remainder was gone forever. A freehold have accumulated; but in many of the states, could not commence iufiituro. It followed that and by this code, future interests include all if the ijarticulai' estate terminated before the estates in expectancy, vested and contingent, happening of the contingency, the remainder and all future interests are descendible, de- was destroyed; thus the particular estate might visable, and alienable in the same manner as be destroyed by fire, feoffment, or by a merger, estates in possession, so that a thorough exami- and the remainder fall with it. The policy of nation of the common-law rules concerning re- legislation generally, however, has been to place mainders, and the delicate (juestions springing contingent remainders beyond the reach of ac- tlierefrom, must be esteemed as of mure interest cident to the precedent estate: 1 N. Y. R. S. in sliowing the learning and scholarly attain- 725, sees. 32, .35; so in Virginia: See 1 Lo- ments of the early law-writers rather than aa niax's Dig. 457. Thus the New York stat- of any practical utility." ute renders expectant estates no longer de- See section 767 as to creation of future es- pendent on the cimtinuance of the precedent tates, without the necessity of a precedent estate, and the revised code of Missi&sippi de- estate to support them. 742. Same. Sec. 742. No future interest, valid in its creation, is defeated by the deter mination of the precedent interest before the happening of the contingency on "which the future interest is limited to take effect; but should such contingency afterwards happen, the future interest takes effect in the same manner and to the same extent as if the precedent interest had continued to the same period. TITLE III. GENERAL DEFINITIONS. 748. Income, what. Sec 748. 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. 749. Time of creation, what. Sec 749. The delivery of the grant, where a limitation, condition, or fnture interest is created by grant, and the death of the testator, where it is ci-eated by will, is to be deemed the time cf the creation of the limitation, condition, or interest, within the meaning of this part of the code. 174 PABT II, Title II, Chap. I.] ESTATES IN GENEEAL, §§ 755-762 PART n. REAL OR IMMOVABLE PROPERTY. Title I. General Provisions 755 II. Estates in Real Property 7G1 III. Rights and Obligations of Owners 813 rV. Uses and Trusts 847 V. Powers 878 TITLE I. GENERAL PROVISIONS. 755. Law governing real property . Sec. 755. Real property within this state is governed by the law of this state^ except where the title is iu the United States. [Amendment^ approved March 30» 1874; Amendments 1873-4, 218; took effect July 1, 1874.] Territorial jurisdiction of the state: See Pol. Code, sees. 33, 34. TITLE II. ESTATES IN REAL PROPERTY. Chapter I. Estates in General , , 7G1 II. Termination of Estates 789 HI. Servitudes 801 CHAPTER L ESTATES IN GENERAL.. 761. Enumeration of estates. Sec. 7G1. Estates in real property, in respect to the duration of their enjoy- ment, are either: 1. Estates of inheritance or perpetual estates; 2. Estates for life; 3. Estates for years; or, 4. Estates at will. See sec. 7G5. at will: Mitchell v. Davis, 20 Id. 45. A ten- "'Estates at sufiferance' are included in ancy at will cannot exist without some express the phrase ' estates at will:'" Commissiouers' grant, or contract: Blum v. L'obcrtson, 2i Id. note. 127. In Moore v. Morrow, 28 LI. 551, it ia If the owner permits another to occupy s.iid that a tenancy by sufferance ia not by the land without any lease or agreement to pay consent but by the laches of tlie owner; as, rent, and such other merely ti^kes care of it for example, in the common law, where a tcn- for the owner, he is a tenant at will: Joves v. ant lield over after the expiratitm of his lease: Sh'iy, .50 Cal. 508. A mere servant or agent iu (Jridia-i v. Morrcll, 25 Id. 31; and so McCarthy possession of his principal's laud is not a tenant Yale, 3d Id. 585. 762. Estates in fee. Sec. 7G2. Every estate of inheritance is a fee, and every such estate, when not defeasible or conditional, is a fee-simple, or an absolute fee. [Amendiyient, approved March 30, 1874; Amend nienfs 1873-4, 218; took effect July 1, 1874.) " 2 Shars wood's Bla. Com. 106; Plowd. any class of conditional estates: " Commission- 557; 1 Preston on Estates, 425; 1 Wash- ers' note. burn on Real Property, 51. Ihe word 'sim- Transferring fee, words of inheritance pie' does not add significance. It is used not essential: See sec. lOl'l, post. merely to mark more fully the distinction Devising fee, " heirs " not essential: Sec. between an unq^ualitied fee and a fee-tail, or 1329. 175 f§ 763-768 REAL OR IMMOVABLE PROPERTY. [Drv. IT, Part II. TSS. CnndiUonalfccs and estates-tail abolished. Sec. 7C3. Estates- tail are abolished, and every estate •which would be at common law adjudged to be a fee-tail is a fee-simj)le; and if no valid remainder is limited thereon, is a fee-simple absolute. "An heritaWe estate which will rlescend to our act adopting the comnvon law ii-Kjlnded the •certain classes of heirs is ca'led an 'estate in fee- conditional fee at common law or iKs successor, tail,' or ;in 'estate-tail.' The words 'heirs of the fee-tail under tlie statute de dniis. The the i)ody <^cy Estates at will, chattel interests, but not V. Aikpti, 1 1 N. V. 49S; Aivr.'U v. Tajlor, 8 Id. lial)le to sale on execution: DuLin.sou v. Siailh, 52; Big-low v. Finc/i, 17 Barb. 390. 25 Barb. 108; Bvjeiow v. FincJi, 11 Id. 498. 768. Estate for life of a third person a freehold. Sec. 7GG. An estate during the life of a third person, whether limited to heirs or otherwise, is a freehold. [Amendment, approved March 30, 1874; Amendments 1873-4, 218; took effect Jabj 1, 1874.] "Correspondsto estate p^r a7?/re fi'e.' 1 Wash b. the life of a third person, whether limited to on Real Prop. 88; 2 S bars. Bla Com. I "JO; Moshfr heirs or otherwise, is a freelioldonly, duriui^ the V. Yost, S'^ Barl). 277:" Commissioners' note, life of the grantiie or devisee. After his death The original section read: "Au estate during it is a chattel real." '767. Future estates, what. Sec. 7G7. 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. Future estates: See note to sec. 741, mite, says Chancellor Walworth, 'include every pros- and sec. 742. "The definition in this section ent right and interest, either vestwl or contin- compruhends evei'y s[iecies of t:xpectant estates gent, wiiich may by possibility vest at a future created liy the act of the p uty, remdnders day:' Lmrrciici' v. Baijard, 7 Paige, 70;" Com- strict'y so called, future uses, and execiitoiy niissioners' note. devises. Toe words, with or without tlie in- Tiie above section does away with tlic com- tervention of precedent estate, embrace v.liat mon-law rule, whicli was in force in this state are teciinicad}' known as estates i/ty(//«ro. Tlie prior to the ado[)tion of tlie code, thatatiee- words ' lapse of time or otherwise ' provide for ho'd could not be created to commcnee iiij'iiinro: contingent Imitations operating to abridge or 7/«;yp.s v. -r- as laid down in ffniNfi) v. James. 5 t'aige, 444t TOOrt>.', 4 Lans. 2:50; (>u;/c?'v. ./o">'.s, ISBarb. 4G7. S. C, IG Wend. iOS:." Estate of Uiucldey, iS -* "Section 771 is to be read with section 715, Cal. 457, 481. 772. Contingent revminder in fee. Sec. 772. A contingent remainder in fee may be created on a prior remainder in fee, to take efi'ect in the event that the persons to whom the first renin inder is limited die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain majority. 773. Remainders, future and contingent estates, how created. Sec 773. Subject to the rules of this title, and of Part I. of this division, a. freehold estate, as well as acliatte] i*eal, may be created to commence at a future day; an estate for life may bo created in a term of years, and a remainder lim- ited 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. 774. Limitation of successive estates for life. • Sec. 774. Successive estates for life cannot be limited, except to persons in being at the creation thereof, and all life estates subsequent to those of persons in being are void; and upon the death of those persons the remainder, if valid in its creation, takes effect in the same manner as if no other life estate liad been created. [Amendment, approved March 30, 1874; Amendments ld)To-4i, 219; took effect July 1,1^14..] 775. Remainder upon estates for life or term of years. Sec. 775. No remainder can be created upon successive estates for life, pro- vided for in the preceding section, unless such remainder is in fee; nor can a remainder be created upon such estate in a tarm foi- yeai-s, unless it is for the "whole residue of such term. [Amendment, approved March 30, 1874; Ameiid- ments 1873-4, 219; took effect July 1, 1874. J Civ. CouK— 12 177 §§ 776-789 REAL OR IMMOVABLE PROPERTY. [Div. II, Part II, T76. Contingent remainder on a term of years. Sec. 77G. A contingent remainder cannot be created on a term of years, unless the nature of the contingency on which it is limited is such that the remainder must vest in interest during the continuance or at the termination of lives in being at the creation of such remainder. 777. Remainder of estates for life. Sec. 777. No estate for life can be limited as a remainder on a term of years, except to a person in being at the creation of such estate. 778. Hnnainder upon a contingency. Sec. 778. 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 conditional limitation. Conditional limitation. — The great distinc- tlie expiration of an estate by tlie limitation, it tion between a condition and a conditional at once ceases, and tlie next estate in e.xpect- limitation is, that to render a condition effect- ancy at once vests: See 1 Sharswootl & Budd's ive to terminate the estate to which it is Leading Cases on Real i*ro[). 188, 143, where the attached, it must be taken advantage of by subject of forfeiture and entry ia considered. Bome act of the grantor or his heirs, while on See sec. 780, infra. 779. Heirs of a tenant for life, lohe^ to take as purchasers. Sec. 779. "When a remainder is limited to the heirs, or heirs of the body, of ra person to whom a life estate in tlie same property is given, the persons who, • on the termination of the life estate, are the successors or heirs of the body of •the owner for life, are entitled to take by virtue of the remainder so limited to itheui, and not as mere successors of the owner for life. Rul3 in Slielleys Case abolished. — For tion in this country. The policy of the rule ia . examiles arising under the ride in Sh/^Uey's not consistent with our institutions, and there- • Case prior to its alirogation by the code, see fore the rule itself is now generally abolished. JVorr/s V. Ilcnlcy, 27 C;d. ."W; E-fta e of Uiz, 43 See a consideration of the prevalence of the Id. 201. The aljove provision of the code is in rule in Shelley's Case in this country in the harmony with the prevailing spirit of legisla- note to Pvlk v. Farts, 30 Am. Dec. 400, 415. '780. Construction of certain remainders. Sec. 780. "When a remainder 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. 781. Effect of power of appointment. Sec. 781. A general or special power of appointment does not prevent the vesting of a f utux'e estate limited to take effect in case such power is not executed. CHAPTER II. TERMINATION OF ESTATES. 789. Tenancy at will may be terminated by notice. Sec. 789. A tenancy or other estate at will, however created, may bo termi- nated by the landlord's giving notice in Avriting to the tenant, in the manner prescribed by section eleven hundred and sixty-two of the Code of Civil Pro- cedure, to remove from the premises within a period of not less than one month, to be specified in the notice. Termiaatins; estate — Action for unlaw- bringing ejectment without further notice, or fill detainer. — Under the provisions of this by an action of unlawful detainer, after first section the landlord may terminate the estate having laid the foundation for the action by at will by giving the specified iiotic; of it least giving the three days' notice prov-ided for in one month; the landlord then has a right to re- section 791. This tnree daj';^ nocicc; is essen- «uter. He may enforce this right either by tial, and cannot be waived by the defendant. 178 Title II, Chap. III.] SERVITUDES. §§ 790-801 TIio action of unlawful detainer "cannot he possession; and these things must be made to maintained to recover possession from tenants appear by express averments in the co:nplaint:" at will without lirst terniinating the tenancy Martin v. SpUr'ilo. r.6 Cal. 128; Kiiirj v. Con- liy giving; at least thirty days' notice in writ- ne/h/, 51 Id. 181; Sniilh v. //iU, G3 Id. 51. ing, and'after the termination of the tenancy Changing terms of tenanoy: See sec. 827, three days' uotice in writing to surrender the post. 790. Effect of notice. Sec. 790. After such notice has been served, and the period specified by such notice lias expired, but not before, the landlord may re-enter, or proceed accord- ing to law to recover possession. 791. Ro-entnj, lohen and hoiv to be made. Sec. 791. "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 eleven hundred and sixty-one and eleven hundred and sixty-two, Code of Civil Pro- cedure. See note to sec. 789. 792. Summary proceedings in certain cases provided for. Sec. 792. Summary proceedings for obtaining possession of real property forcibly entered, or forcibly and unlawfully detained, are provided for in sec- tions eleven hundred and fifty-nine to eleven hundred and seventy-five, both inclusive, of the Code of Civil Procedure. 793. Notice not necesmri/ before action. Sec. 793. An action for the possession of real property leased or granted, with a right of re-entiT, may be maintained at any time, in the district court, after the right to re-enter has accrued, without the notice prescribed in sectia Beveu hundred and niuety-one. CHAPTER III. SERVITUDES. 801. Servitudes attached to land. Sec. 801. The following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called ease- ments: 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; 4 The right of way; 5. Tlie right of taking water, wood, minerals, and other things; G. The I'ight of transacting business upon land; 7. The right of conducting lawful sports upo^ land; 8. The right of receiving air, light, or heat from or over, or discharging tl* same upon or over land; 9. The right of receiving water from or discharging the same upon land; 10. The right of flooding land; 11. The right of having water flow without diminution or disturbance of any kind ; 12. The right of using a wall as a party- wall; i:J. The right of receiving more than natural support from adjacent land or things affixed thereto; 179 §801 REAL OR IMMOVABLE PROPERTY. [Div. II, Part II, 14. The right of having the whole of a division fence maintained by a coter- minous owner; 15. The right of having public conveyances stopped, or of stopping the same on land; IG. The right of a seat in church; 17. The right of burial. Easements and ssrvitudas. — These terms, stances of the case. If a man grants to another used by the common-law writers, ofttimes a piruel of laml entirely siirroumlcd l)y other indiscriuiiiiately, are "listinguished in t!ie code, land of the grantor, or p irtly by land of the in the maimer now generally recognized, " ease ment" referring; to tlie right enjoyed; " servi- tude" to the burden imposfd: See sec. 802, infra; Washh. on Easements, sec. 5. An ease- ment is not to be confounded with a license; the former implies an incerest in the land in or over which it is to be enjoyed, the latter carries no such interest: Id.; 2 Wait's Act. & Def. GjG. It i.a to be observed that tlie above enumera- grantoraiid partly by Ian I of a stranger, a way of necessity arises in favor of the grantee over the grantor's land: Tcnilor v. Wamakif, 5-3 Id. 330; Plen-c. v. S^'irk. JS Conn. X)\; 'M'; Lawton v. Rrn-.-i, 13 Am. Dec. 7H; A''py v. Cnrlrtm, 20 Te.x. 78: Piiiiirfo V. McDuffic, 50 N. II. 306. A riglit of way by necessity cnimot be raiseil by giant out of the lands of a. stranger; it can only l)e across tion includes those classes commonly known Lands granteil or resei-ved liy the grantor: Oil as easi ments, and jirqfil-: a prendre as well. ver v. I/oo'.-, 47 Md. 3;)1. A way liy necessity Subd. 1. Riglit of pasture. — A leserva- is conceded by law rs a matter of jiresnmed tion in a deed of the " grass, iierbage, feeding, intention of the parties: American Co. v. /Jrcul- and pasturage " creates an easement in the fonl, 27 Cal. oGtJ; jV r/t'-As v. Luce, 24 Pick, grantor's favor upon the acce]>tance of tiie 102; Co'llna v. Ih-enihe, 1,') Conn. 30. And deed: lioxe v. Barm, 2] N. Y. 273. A right of where this intention cannot l)e iiresumcl, tliere common in anotlier man's land is an easement: beint; no express grant, implied i-eservation, or ThomiiH V. Mar.^/iJteU, 10 Pick. 3G4; LcviiKjston V. Ten Broeck, IG Ji>lins. '15. Subd. 2. R'.glit to fish in a no!)-navigablc stream is primarily in the o^^^ler of the Swil to the exclusion of the pnlilic: Water!* v. LV^eij, IG Am. Dec. 333; Commomceallh v. Chaplii, ]G II. 38G; Hooker v. Cummiji/j^, 11 Id 249. Biit this ri_:ht may be acquired by another: AVushb. on Easements, sees. 410 et sef|. The presjcriptive iii^ht, snch a wiiy by necessity cannot arise: E^nioinl v. Cheii\ 15 C.il. I.']/; Carey v. AVw, 38 Id. 139. While wliat is a "necessity " seems to be a matter of some un- certainty, all the cases hold tliat mei-e con- venience will not be sulliiient to raise ^nch an easement: ('(irVrry Subd 4. Riglit of way.— A right of way v. liruici, G CoMw. OS; O' Horke v. S^nilh. 11 mu.st spring from an express grant, or from R. I. 2G4. No riglit of way through granted an implied reservation, or from a user for a premi'wiier fails, upon re- quest, to designate such way, the party having tlic right to ib may make the selection, having due regard to the interests of the owner: Ifolmes V. Secley, 19 Weud. 507; NichoU v. over the otlier, and reserves a right of way over the sold tract, eacii is a dominant estate with res])cct to the right of way across the otlier: Id. W'ly hy necesK-fy.—As a general rule, when a party gr.ints a thing he grants by implication wlnitever is necessary to its benelicial enjoy- ment: Cave V. Cra/t-t, 53 Cal. 133; an.l see sec. 1 104. posl. Whetlier upon a grant a way of ne- cessity will arise must depend upon tlie circuni- When tlie necessity ceases, the way thereby occasioned ceases also: Lid'' X. Iladley, 3G Ala. G27: VI dl V. Carpenter, 14 Gray, 12G. T/ie dominant oiu m' h'ts no ri/hl to po^'-iess (he land upon whicli the servitude is imposed. The owner of tlie servient tenement is in law in possession of the land: La-hman v. Bir- nctt, 2 West Coist Rep. 230 (Mev.). Subd. 5. Riglit tD ta'x3 wood, minarala, eto. — One may have an casement to dig and 180 Title II, Cuap. III.] SERVITUDES. §801 carry away ore in tract of land: GJovhigrr v. Duer, 536; TTicatt v. Morria, 10 Ohio St. 52.3; FraiiL/in Coal Co., 55 Pa. St. 9; Arnold v. Ph'lips v. Bordmnn, 4 Allf-n, 147. Slercvx, 24 Pick. lOD; UcaU:i v. iln',jor>i, 17 Subd. 13. Lateral support: See sec. 832, Iowa, IIG; to take sea-weed: Phil ipsv. j:ho(!es, po^t. and note. 7 Met. 322; Xndd v. llobb<, 17 N. H. 527: to Subd 14. Division fence.— There may be dig stones: Worcester v. Green, 2 Pick. 425; a valid prescription by which tlie owner of land Greii V. Putnam, 8 Cusli. 222. becomes bouml to maintain the division fence Subd. 6. Transact bus:n?ss, rfglit to. between himself and the adjoining proprietor: Adams V. Van Alslj/iie, 25 N. Y. 2.35; Bur.iey V. Proprietors in JJiill, 5 Pick. 503; Starr v. JioLenbi/, I Salk. 3S5. Wliyn created, such easenitnt inures to the benefit of every jiorlijn of t!ie dominant tenement: UHls v. Miller, 3 Pai-e, 254; Child v. Chappdl, 9 N. Y. 24G; One may have an easetncnt to pile logs and lumber on land used as a mill yard for ihe ac- commodation of a saw-miil: Carney v. Ford, 2 Allen, 57iJ; Voorhees v. Barchard, ti Lans. 17G; to place merchandise upon land, and s\\ ing the bales and bo.vcs into a store hy a windlass: 7i'(VA- ardson v. Pond, 15 Gray, 300; to hang clothes Adams v. Van Alstyne, mtpra. in another's yard: JJreivell v. Towler, 2 Barn. & See also sec. 841, jiosf, and note. Adol. 735. Subd. 15. Kavinj publio conveyanoes Subd. 8. Easement of light and air: See stoppsd. — An agreement made by a railroad the note to Story v. Odin, 7 Am. Dec. 49, company with a person owning land adjacent wht-rc it is shown that the English dot;trine to its track, to establisli and maintain a pcrma- Tvith iesi)cct to an easement of light and air by nent turn-out track and stopping-place at a prescription, witli few exceptions, docs not ex- particular point, and to stop there, is, in sub- ist i;i tills country. Easement of ligiit and air stance, the grant of an easement or servitude, is presumed to follow premises conveyed so as to binding upon t!ie property of the company as prevent tlie grantor from using adjoining land the servient tenement for the benefit of tiie ad- jacent owner and of all those who shall succeed him in his estate as owners thereof: Pllkln v. /.. /. /.'. Pu Co., 2 Birb. Ch. 221; Day v. N. Y. Cent. n. n., 31 Barb. 548. Subd. 16. Paw-holdsrs, ri§lit ot— In the absence of statute declaring them real or per- sonal estate, pews are generally regarded aa partaking of the nature of realty: Kimball v. 60 as to disturb such easement: See Berkeley V. Smith, 27 Gratt. SOS, and note to /lobeson v. PetluKjer, 32 Am. Dec. 410. For a further con- sidcn.tiou of adjudications, American and En- pl s'l, SCO the note to Henry v. Koch, 22 Am. Law Reg. 402. Gubds. 9, 10. The right to receive V7T.tcr from land cannot be ci-eated l)y pre- Bcrip.ion v.Iicre the owner of the land cannot 'J'owlei/, 24 Pick. 347; Uodnes v. Green, 23 object tj the taking of the water, as in case of pcicolating waters: Hanson v. McCne, 42 Cal. 303. FiT example of a right to the unob- structeil, natural ilow of surface water from a Liglicr to a lower tract of land, see Ojbarn v. Connor, 4'J id. .34G. O.ie who constructs a reservoir on the pub- lic laud under tiic acts of congress of July 26, Vt. 358; Baptist Church v. B'ljelow, 16 Weml. 28; Succession of Gamble, 23 La. Ann. 9; they constitute a qualified and usufructuary right to occupy under certain restrictions: Sohier v. Trinity Church, 109 Mass. 21; and are held subject to the power of the trustees to alter and repair the ciiuroh: I'oorhees v. PresJui'eriaii Church, 5 How. 74; 17 Barb. 108. In Shnw v. ISGJ, anil July 9, 1870, has a right to continue Bererid'/e, 3 Hill (X. Y. ), 26, it was recognized the same as against one who subse(|uently that pews miglit be held as easements. proves up his claim to an adjoining tract, not- withstanding he liad previous'y tiled liis declar- atory statement: Farley v. S. V. 21. f. 723. Either party may As onpliasizing the necessity of the user use t!ie wall for all pro])er purposes whicli being open, peaceable, as j)f right, and uninter- i-)tcJ, see also C'afv V. Cra/i's, 53 Cal. 1.35. user for live years, under a claim of riglit, exchisively and openly, to such use of the servient premi-ses: Grilication a w.ay by necessity has been created, such eascmeiit will cease with the nsc'ssity: Alley v. i'arlftoii, 23 Tex. 7S; Jjide V. llalley, 33 Ala. 027, and cases supra, in note to sec. 801. Tlu .same constructio.i whic!i presumed an intention to grant a means of access to the lands conveyed will also pre- sume that the access over of the gi-antoi-'s land was meant to cease when other means of ap- proach were acquired. Where a right of way is granted, the grantee to the condition of the property at the time of the grant: Lcimpmaii v. M'dlof, 21 N. Y. 505. In case of an casement by prescription, the nature and extent of the enjoyment determine the right. The riglit to corrujit water f r one purpose does not give a right to d>> ho for an- other purpose or to a greater extent: IIols- maii V. lioilimj Sitring Co., 1 McCart. 340. A way for one pnrposj cannot be used for an- other ))urpo3e: Atio iter v. Boddsh, 11 Gray, 152. Aud gener dly, the use defines the right: Washb. on Easements, 352; and the natnre of the use cannot ba changed from that by which the prescription was gained: Id. 147; lutein V. Uirloi, 21 Ala. 133. An increase iu the amount of tlie use vitiates the prosc"h)tion cannot use it to go to any other place than that t.") the extent of the excess only: Brddiuiii \. Bpecified, nor for any other parpOo3 than that C'dLiuf, 10 \Vend. 107; Wriijhl v. Moore, 33 Bpcciiied, if the use i< limited in that resiiect: Ala. 538; Whittitr v. Cocheco Man, Co., 9 N. rre.ich v. Marston, 24 N. H. 451. Parties also H. 454. are jjresumed to grant eascmeats with reference 182 Title II, Chap. III.] SERVITUDES. §§ 807-811 BO'l. Apportioning easements. Sec. 807. In case of partition of the dominant tenement, the burden must be apportioned according to the division of the dominant tenement, bat not in Buch a way as to increase tlie burden upon the servient tenement. "Where the dominant estate is divided, if 7ieij, 1 Cush. 2So; Watnon v. Bioren, 1 Serg. & the casement is a gcncial one for the benefit of the whole estate it will inure to the benefit of every parcel of it when divided: /Jarron v. Jiickard.", 8 Paige, 351; Hills v. Miller, 3 Id. 254; Lantihtij v. WiHwall, 5 Denio, 213; Lewis V. Cardairs, G Wliart. 193; Underwood v. Car- R. '229; i'asVr v. L. M. R. 11., 14 Ohio St. 4S; Fixhcr V. Beard, 32 Iowa, 352. lint no divis- ion of the dominant tenement can inciease the burden ujion the servient estate: Wtil'iiey v. Lei', 1 Alien, 103; Underwood v. Carney, I Cush. 285; Watsons. Bioren, 1 Serg. & R. 229. 808. Eirjlds of owner offiUure estate. Sec. 808. The owner of a future estate in a dominant tenement may use easements attached thereto for the pui-pope of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is occupied by a tenant. Entry on servient estate. — One who owns an casement u[ion the land of another has a right to enter on the laud to keep the easement in repair, but aside from this and analoi^ous purpo!3C3 he has no rigiitof entry: Pico v. Guli- tnas, 32 Cal. 578; San Francisco v. Calderwood, .^1 Id. 5S5. Recognizing this right to enter upon the servient estate in order to preserve tho reasonable enjoyment of the easement, see ]Yathln^ v. Pec':, 13 N. H^ 377; Pri'smtt v. William^, 5 Met. 429; lixiujfnian v. Grieacmer, 20 Pa. St. 407. 809. Adions hy owner and occupant nf dominant tenement. Sec. 809. The owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto. Action to enforce easement. — For illus- tration I if actions of trespass for interference with ].laintiti''3 easement, see Cave v. Crafts, 53 Cal. 135; Smith v. Wirjfjin, 48 N. H. ICO; Gavley Y. Looiieij, 14 Allen, 40. That a tenant at will may sue for an interruption of the ease- ment, see Foley v. Wiieth, 2 Id. 1.35; flaxt- ings V. Livennure, 7 Cray, 194, And that a reversioner may have such action, see Hast- ings V. Livermore, tiitpra; Brown v. Bowfu, 30 N. Y. 519; Tin^man v. Belvidere !!. 7?., 1 Dutch. 255. But the injury must be one per- manently affecting tiie reversion: Richardson V. Bii/eloir, 15 Cray, 154. Enforcement of easement by injunction: See High on Injunctions, sees. 485 et seq. 810. Actions by owner of servient tenement. Sec. 810. The owner in fee of a servient tenement may maintain an action for tho possession of the land, against any one unlawfully possessed thereof, though a servitude exists thereon in favor of the public. 811. lluio extinguished. Sec. 811. A servitude is extinguished: 1. By the vesting of the right to the servitude and the right to the servient ten-^ment in the same person; 2. By the destruction of the servient tenement; 3. By the performance of any act upon either tenement, by the owner of tho servitude, or with his assent, Avhich is incompatible with its nature or exer- cise; 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 enjoy- ment. Estiiisuislimont of servitude.— Subd. 1. Vestfng of riflit to servitude and right to eerviiiit tenement in same parson: Sec sec. 805. ante. That such unity destroj's the servi- tude is laid doivn in P'iuijiton v. Concrse, 42 Vt. 712; Colrman's A/>;>eul, 02 Pa. St. 274. The ownership. if both estates must be absolute: Warren v. BtuLe, 04 Me. 27G; McTavibh v. Cur- roll, 7 Md. 352; Bralelyv. Sharp, 9 N. J. Eq. 9. . And there must lie a unity of possession aa^ well: Ritrjrr v. Purler, 8 Cusli. 145; '/VVr v. //amnion/, 11 Pick. 193; J/az; Wuslih. on Ej,se- tnents, o.W; Morse v. Copidand, 2 Ciray, 303; Car- tU V. Xi'Onan, 10 Allen, 403. An uiie.xecuteJ Carol agreement to give up an easement ia nob indin:,-: Pope v. DevereuXy 5 Gray, 412. Subd. 4. Non-user. — Aljandonnient of the easement will Ijc presumed from non-usei- l»y the owner of the right and user hy tho servi- ent tenant of the servient premises adverse to Biioh right, continued for a lengtii ef time suf- ficient to create a right by prescription: Arnold V. SUvtus, 24 Pick. lOG; Pope v. U'lJara, 4S N. Y. 41.1; flaH V. McCaurjhey, 51 Pa. St. 43,- Om-nx. Field, 102 Mass. 1 14-, H'hi/iam w J/c- Gniri-', 51 (ia. 57S; IVildrr v. .yl. /'aid, 12 Minn. 20S; Farrar v. Co'per, 31 Me. 3yt. Sncli non- user combined willy adverse user on the part of the servient tenant will worU a destruction of the easement, whether created by ilced or by prescription: Above cases. Ikit tliis ilistinc- tion must b(! observed: to extingai.-,h an ease- ment acijuired by prescription — the class of casements [irovided for in the above sub- division — a non-user alone is sullicient; whereas in case of an easement created by deed, mere non-user not being, inconsistent with tlie writ- ten grant, as i.j said in Doe v. llidter, 3 Wcml. 14f). there must l^e sontc act of the owner of the servient tenement adverse to tho right and continued I'or tho length of time suiiieient to establish an estate in realty under the statute of limitations: Cases first above cited; Smijlea V. Uastliujs, 22 N. Y. 217. TITLE III. EIGHTS AND OBLIGATIONS OF OWNEP.S. Chapter I. Rights op Owners 818 II. Obligations of Owners 840 CHAPTER I. PJGHTS OF OWNERS. Article I. Ixcidknts of Ownership II. BoUNDAUIliS 818 829 ARTICLE I. INCIDENTS OF OWNERSHIP. 818. Tliglits of tenant for life. Sec. 818. The owner of a life estate may use tlie land in the same manner as the owner of a fee-simple, except that he must do no act to the injury of the inheritance. tantrula was announced in Gahvi^ v. Oreen Pond Iron M. Co., 32 N. J. Eq. G33, wiiere a life tenant Worked a mine whicli tiio prL'deeessor had allowed ti) remain un worked for isi-rty years: "The rule Ijy which tiio riglit of the life tenant to work open niiius is to be tested is not tlie icngtli of timo that m ly Iiavc elapsed since tlio last working of tiic mines, but it 'W si^dlon, approved Marcli 30, 1874; Amendments 1873-4, 9.20; tuolc effect July 1, 1874.] Termination of tenanoy at will: See sec. 7S9, ante, and note. ARTICLE II. BOUNDARIES. 829. liir/his of owner. Sec. 829. The owner of the land in fee has the right to the surface and *jO everj'thing permanently situated beneath or above it. or built upon it, and whatever is in a direct lino between the surface and the center of the earth: 2 Bla. Com. IS; 1 Cru. on Real Prop. 85 : " Coinmissionera' note. "The term 'land' compreliends any ground, soil, or earth, as meadows, woods, waters, pas- turts, marshes, furze, lieath. It has imleiuiite extent upwards as well as downwards, and in- cludes all houses and other buildings standing 830. Boundaries by water. Sec. 830. Except where the grant under which land is held indicates a differ- ent 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 mid- dle of the lake or stream. [Amendment, approved March 30, 1874; Amendments 1873-4, 220; took effect July 1, 1874.] Boundaries. — Land bordered by tide-ivater extends toortlinary high-water mark: More v. Maxsini, .'^7 C"al. 432. There is some difference in the cases upon the question whether grantees on tide-waters take to high or low water maik. In this state they take to high water, and the common-law rule adopted in many cases is, that the shore between high and low water mark belongs to the sovereignty: J\IcNanu.9 v. Gar- michael, .3 Iowa, 1 ; Mutfaer v. //er.she]/, 42 Id. 35C; Mcyor v. Eslavn, 9 Port. 601; C!ououndary of a tract of land: Bruina'jim V. Bradsliau), 33 Cal. 43. 831. Jloundaries by ways. Sec. 831. 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. ISO Title III, Cuai-. II. 1 OCLKJAriOXS OF OWNERS. §§ 832-840 Bounding on street. — Land described in a deed as bonnded on a highway or t-trect v.ill lie considered as cxten, 2:? Pa. St. .305. Sea valuable note in .sliarnwood & Brdd's Lead. Crs. on Re: 1 Prop. 104 et seq. Rights of tenants for IL'e: See sec. 818, ante. Decree dsclariog Ifo estate terminated: Code Liv. Proc, sec. 1723. Duties of Ilfo tonant.— The tenant for life nuisL keep the premises in repair: Bro'^'jh v. lli'jlli}!^. 'J Cratt. 408; Cocltran v. Coc/traii, 2 De^au. 521 ; L'z'ri of Keaninj v. Keariiei, 17 N. J. E<|., 50 Id. 504; In r^ Mani E. Sfrr/e, 10 Id. 120; IVi'son v. Edmon «,2l N! II. 517; S>rtc.-< v. Sar/f.-<, .3 Sandf. Ch. 001-007; but is not bound to expend extraordinary sums: ]Vii.'^s and implied or result- ing trusts, the latter being such as exist " by operation of 1 iw," and the former such as ai'C created or dccl.ired by instrument in writiu'^: E-^taU- of //hirL-'ri/, 58 Cal. 483. Trusts relating to jier.soual |)ro;)crty may be established by words or acts as p'cscril)ed by sections 2221 and 2222: See f/"iiir/://>f.','.. "When a transfer of real property is made to one person, and the consideration therefor is jiaid b}' or for another, a ti-ust is presumed to result in favor of the person b}' or for "whom such payment is made. [ Amendment, a2>proced Marcli 30, 1871; Amendments 1873-4, 221; took effect Jahj 1, 1874.] A trust results in favor of the person liy /Jlih/ni v. Jordnn, supra. Tin's trust wliich or for uhoiii liie coiisiilcraticn is paid, wlicre real jirf){)crt3' ii transferred to. inotlicr: Osborne V. L'.dk-ol/, G Cal. 119; Jli/dni v. Jordan, 21 Id. 92; Ikujlcn v. Baxter, 22 Id. 57.'); Sinufoii V. LrLsti'in, Id. 5S0; Mi lard v. llalhawaTj, 27 Id. 119; Bbul worth v. Lake, 3.3 Id. 255; Cnr- rcv V. Al'ai, 3t Id. 254; DU:rinivi v. iVoi-rlr, oQ Id. 94; Case v. Coddhirj, 33 Id. 191; U'a.sle,/ v. Foreman, Id. 90; Davis v. Bani/h, 59 Id. 5GS; 11 nteliinnon v. II iitchivwn. Id. 31.S; Boxko- witz V. Davis, 12 Xev. 44G; sec 2 Pomcroy's Eq. Jur., sees. 10:50 ct seq. It makes no differ- ence wlietlier tlic consideration is money or otlier property: Cnrrci/v. Allen, snpra. Where the law implies is not destroyed by a stipula- tion in writing to repay the consideration money: Mdtard v. Ilatkuwaf/, sitpra. Tlic above principles do not apply to a pur- chase by a fatlicr in the name df his child. Sucii purchase is prima facie an advancement: Hit.is V. Mel/ui.i, 10 Cal. 173. The partj' claindng .is a resulting trustee by reason of tlie payment of the consideration must show that tlic money was paid before or at the time of the execution of the conveyance: Case V. Voddiu'i, 38 Cal. 191; Roberts v. Wnre, 40 Id. 031. And he must clearly jirove that the money belonged to him; if tiie t-jstimony one pays but part of the consideration money, a is merely parol, it will be received with much trust firo tanlo arises: Case v. CoddiiKj, supra; caution: Millard v, llalhawarj, 27 Id. 119. 854, 855. Piiglds of creddors. Sections 854 and 855 were repealed by act approved March 30, 1874; Amendments 1873-4, 221; took clicct July 1, 187-4. 856, Purchasers protected. Sec, SoG. No implied or resulting trust can prejudice the rights of a ptirchaser or incumbrancer of real property for value and without notice of the trust. tee: Price v. Beeves, 33 Cal. 457; and equity will enforce the trust the same as .-.gainst the original trustee: Lalhrop v. Bamp'on, .31 Id. 17. That the purchaser must have pirtcd with value, see Paris v. Bauij/i, 59 Id. 5G3. See the note to sec. SG3, upon the cfTect of a purchase from a trustee not empowered to sell; see also sec. 2243. Bona fide purchasers generally: See sec. 1214, and note. Eonalidc purchaser, to take land discharged of the tru^^t, murt have been ijnorant of all of the facts constituting the fraud, not only at the time {,! the pui-ehase, but when he paid the pur- chase money: Scott v. Umbanjer, 41 Cal. 410. See generally that to protect one as a bona fide purchaser he must not have notice if the prior equity, when he paid the purchase money: BleiijhCs Ihlrs v. Baidcs, \~ Am. Dec. 157. If the purchaser has knou ledge of Iho trust, he occupies the same position as the original trus- 857. Erpresx trusts for ichal purposes created. Sec. 857. Express trusts luay be created for any of the following purposes: 1. To sell real i^roperty, and apply or disjjose of the proceeds 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 satisfj'ing any charge thereon; 3. To receive the rents and profits of real i^roperty, and pay them to or apply them to the use of any person, whether ascertained at the time of the creation of the trust or not, for himself or for his family, during the life of such person, or for any shorter term, subject to the rules of Title II. of this part; or, 4. To receive the rents and profits of real jiroperty, and to accumulate the same for the purposes and within the limits jirescribed by the same title. [Amendment, approved March 30, 1874; Amendmeids 1873-4, 221; tooh effect July 1, 1874.1 EsoiGss trust3. — Suba. 1, To sell realty and dispose of tho prooceds. — As examples of transfers by a debtor iu trust to sell for tlie ben- efit of tin? creditors generally, see llaii(Ue:i v, Pjister, .30 Cal. .3S3; Learned v. Willon, 40 Id. 349; Thompson v. McKai/, 41 Id. 221, 2;;0; 'P/lcr V. Crankier, 48 Id. 259; Cschicendv. AW^.s-, Slid. 134; Sliurj^) v. Goodwin, Id. 219; and for tho ben- efit of legatees see Estate of DPivey, 49 Cal. 76, 8G; Au'jnlxoln v. Arnaz,i)\ Id. 4.35, 4.38; and for examples of "trust deeds," see Korh v. Brii/(js, 14 Id. 2,5G; Grant v. Burr, 54 Id. 298; Bate- man v. Burr, 57, Id. 480. If A. conveys to B. a tract of land to be reconveyeil, he thereby creates an express trust which B. may accept • by accejjting tile deed: IJeari>t v. Pujol, 44 CaL 189 §§ 858-863 REAL OR IMMOVABLE PROPERTY. [Div. II, Part II, 230. Vali lity anfl construction of conveyance Dubd. 4. To aocvimulate rents and prof. to trustee to sell ami convey the trust fumli its. — The reference to title 2, part 2, is a niis- •with the app:()v;il of the ceMui que tru-^t: Tij!i-r take, it should refer to title 2, first parti V. Graii'jrr, 4S Id. 2.ji); see 2 Pomeroy's Ivj. E-h>, r> Sandf. ;W;}. It is to be noted Estate of trustee: See infra, sec. 863. that this sul)divi;iio:i does not extend to cred- The provisions of the New York revised stat- itors; it therclorc gives no authority to luort- ntes from which this section and many others in ga^:;e trust pronrty to pay creditors. this title were taken are cxannncd, and the Subd. 3. To avjply tlie rents and profits cases bearing upon them ore collected in the of land. — See, for illustration, Cw^^er V. II •nlif, appen-lix to Professor tJray's recent essay on 4SCal. 568; Estate of Matth/iw Ddaney, 49 Id. 76. Restraints on Alienation. 858. Powers, rchen deemed part of lice srcuritij. Sec. 858. Where a power to sell real property is given to a mortgagee or other incumbrancer, in an instrument intended to secure the payment of money, the power is to be deemed a part of the security, and vesta in any person who, by assignment, becomes entitled to the money so secured to be paid, and may be executed by him whenever the assignment is duly acknowledged and recorded. [New section, approved March 30, 187-1; Amendments 1873-4, 222; look effect July 1,1874.] Section SIS, as originally passed, was repealed 187.3-4, 222; took effect .July 1 , 1874: and a new by act approved }darch 30, 1874; Anienduieats section substituted in its place, as above. 859. Profds of land liable to creditors in certain cases. Sec. 859. Where a trust is created to receive the rents and profits of real property, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, is liable to the claims of the creditors of such person, in the same manner as personal jjroperty which cannot be reached by execution. A provision to the effect that the rights of a Bonnett, 31 Id. 9; CampMl v. Foxfer, 35 Id. beneliciary shonhl cease, and the trust should 331; Williams v. Thorn, 70 Id. 270: Crugcr shift in favor of another person — €. f]., the ben- v. Jones, IS Barb. 467; Ueiuiet v. Beclcman, 45 cficiary's wife — in case a judgment is recovered Id. 362. against him, or in the event of his interest Necessary for education. — See this section becomint^ liable to the claims of his creditors, is discussed and the New York cases cited touch- valid and o|ieiative: 2 Pomeroy's Eq. Jur., sec. ing upon what is necessary for tlie support of 1005, in note citin ,' Kennedy v. Xunan, 52 Cal. the cestui que tntst, and how tlie surplus is to be 326; Notff's v. L'.akenian, 3 Sandf. 531; 6 N. re;iched by creditors: Appendix to (tray's Re- Y. 567; Bramhall v. Ferris, 14 Id. 41; Gruff w, straints on Alienation, sees. 287 et seq. 860. Poicers, execution of. Sec. 8G0. Where a power is vested in several persons, all must unite in ila execution; but in case any one or more of them is dead, the power may bo executed by the survivor or survivors, unless otherwise prescribed by the terms of the power. [Neio section, approved March 30, 1874; Amendments 1873-4, 222; took effect July 1, 1874.] Death of co-tru3tee, the trust survives to by act approved March 33, 1874; Amendments the others: Sec. 22SS, p >st. 187:1-4, 222; took effect July I, 1874; and a Section 860, as originally passed, was repealed new section substituted in its place, us above. 861. 862. Poxoers in trust. Sections 801 and 862 were repealed by act approved March 30, 1874; Amendments 1873-4, 222; took effect July 1, 1874. 863. Trustees of express trusts to have whole estate. Sec. 8G3. Except as hereinafter otiierwise provided, every express trust in real property, valid as such in its creation, vests the whole estite ia the trustees, subject only to the execution of the trust. The beneficiarioa talio no estate of interest in the property, but may enforce the performance of the trust. 190 Title IV.] USES AND TRUSTS. §§ 864-869 Interest of trustee — Implied trusts.— Tlie TJohlen v. New Yorlc and Erie Bnnl; 72 N Y. entii-o estate is vested in the trustee, but liis 280; New v. NicoU, 73 Id. 127; ilrijjiih v, power to make a valid sale and conveyance JJlanc/iar, 17 Ca!. 70; Thoinpson v. Toland, 43 will depend upon the nature of the trust and Id. 90; Sharp v. Goo'Iirin, 51 Id. 2!9; Scott v. the form of the instrument l)y which it is de- Umbanjer, 41 Id. 410; Prve v. Ucevfx, 38 Id. clared: 2 Poineroy's Eq. Jur., sec. 1005. In the 457; Lalhrop v. Bampton, 31 Id. 17. When note to this section, Professor Pomeroy gives the tlie trust is declared in the same instrument by following instructive summary of the powers of which the land is conveyed to the trustee, every the trustees in the respective classes enumer- sale or otiicr act by him in contravention of the ated in section 857: "In ti'usts of the iirst tiust ia absolutely void; a purchaser or a grantee class, bein,' expressly created for the purpose would obtain no title whatever: Pmrcrs v. Ber- of a sale, tlie tiustec may of course sell and (ji'ii, (i N. Y. 358; Bidmout v. O' Brwii, 12 Id. convey a gocnl title: ^cc Learned w. Wdton, AO 394; Smith v. Bowen, 35 Id. 83; Brifjr/n v. Cal. 349; Thnm/,mn v. McKay, 41 Id. 221, 230; Pnl/wr, 20 Barb. 392; Crmjn- v. Jones, 18 Id. Sjrragiie v. EdwnxU, 48 Id. 239; Saundern v. 4G7; Lcitch v. Welh, 48 Id. G37." Schmaelzle, 49 Id. 59. In trusts of the otiier Constructive notice arising from records will kinds the trustee has no authority to sell or charge with a trust lands in the hands of a convey. Still, if the trust is not declared in purchaser: y/a.v.sr?/ v. JFi/ii^, 55 Cal. 525, where the same instrument by which the land is con- the purchaser bought fmm tiie husband who veyed to the trustee, a purchaser from him had obtained his wife's land by getting her to without notice of the trust, and for a valuable join in a mortgage, and by purchasing in at the consideration, takes a good title, freed from the sale. trust; a purchaser with notice or without a Enforcing performance of the trust: See valuable consid< ration takes the land subject pout, "Obligation of Trustees," sees. 222S- to the trust and becomes himself a trustee: 2239, and sees. 2258-2203. 864. Author of trust may devise, etc. Sec. 8G4. Notwithstanding^ anytbing contained in the last section, the author of a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong, in the event of the failure or termination of the trust, and may transfer or devise such property, subject to the execution of the trust. 865. T'dle of grardor of trust property. Sec 8C5. The grantee or devisee of real property subject to a trust acquires a legal estate in the property, as against all persons except the trustees anti those lawful!}- claiming under them. 863. Iidcrt'stx remaining in grantor of express trust. Sec. 8(>G. "Where an express trust is created in relation to real property, every estate not embraced in the trust, and not otherwise disposed of, is left in the autlior of the trust or his successors. T-U3t dejUred in part only of the estate Xininn, 52 Id. 326; McCoUixter v. Wdley, 52 conveyed creates a resulting trust in favor of Ind. .382; Ilnrptn v. Stai/hom, G5 N. C. 279; the author of the trust or of his succes.'^ors: See J/'jan v. Jaques, 19 N. J. Eq. 123; Loring v. Ponce v. McEry, 47 Cal. 154, 159; Kennedy v. Eliot, 16 Gray, 508. 867. J^eneficinry may be restrained from disposing of interest. Sec. 8G7. The beneficiary of a trust for the receipt of the rents and profits of real property, or for the payment of an annuity out of such rents and profits, may be restrained from disposing of his interest in such trust, during his life or for a term of years, by the instrument creating the trust. \Aniendnn\»i- bai-inss the profession. Tlie provisions of sec- nelle, v ho state in tlicir report: "The title tiom 895 and 900 are embociied in other sec- repealed relates to powers general, special, ijene- tions." Section 895, above refcrn^d to, will l<3 ficial, and in trust, aiiilrop-S:inx, 2 Dods. 83; The Monf m v. The v. Staten I. R. /.'. Co., 70 N. Y. 104; Simpson Zrl.ra, 2 Hugiits, (U; The < lam, 102 U. S. 200; v. //ami, 36 Am. Dec. 231; Dowell v. Gen. St. The MornhK/ l/t;iht, 2 Wall. rioO. N.<'o.,5 Kl. & Bl. I9.>. In Grmoold v. Sharpe, Subd. 2. Neither iii fault: See The Wood- 2 Cal. 17, it was held that the plaintiff must be rop .V(//(«, 2Dods. 83; Sleinbarkw Rae, 14 How. faultless. 53J; The Morninti /Juht, 2 Wall. 5.i0; Tlie Subd. 4. "WTisre fault unknown: The Clarila, 23 How. 11; T/te Itinerant, 2 \V. Hob. Seiolo, 2 Ware(Da\'.), 339; Lueax v. The sicann, 23n. 6 McLean, 282; The XanlUns, Ware, i)'2<). For Subd. 3. Both in fault. — The rule above a valunble discnssinn of tliis subject and of mentioned in this subdivision is the rule in questions connected with it, see tiie note to adiuiialty courts: The Continental, 14 Wall, liroudwed v. Swijert, 45 Am. Dec. 51 et seq. CHAPTER III. PRODUCTS OF THE MIND. 98D. JTow far the s^uhjpcl nf ownemliip. Sec. 980. The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical rej)resentation, has an exclusive ownership therein, and in the representation or expression thereof, which continues so long as the product and the i*epresentations or expressions thereof made by him remain in his pos- session. Trade-marlsa; Sec Pol. Code, sees. 3196 et seq., and notes, and sec. 991 of this codo. 881. Joitit authorship. Sec 981. Unless otherwise agreed, a product of the mind in the production of which several persons are jointly concerned is owned by them as follows: 1. If the product is single, in equal proportions; 2. If it is not single, in proportion to the contribution of each. 982, Tramfer. Sec. 982. The owner of any product of the mind, or of any representation or expression thereof, may transfer his property in the same. 983. Effect of publicalion.. Sec 983. If the owner of a product of the mind intentionally mates it public, a copy or reproduction may be made public by any person, without responsi- bility to the owner, so far as the law of this state is concerned. 196 Title II, Chap. IV.] OTHER KINDS OF PERSONAL PROPERTY. i 984-991 984. Subsequent inventor, author, etc. Sec. 084. If the owner of a product of the mind does not make it public, any other person subsequent!}' and originally producing the same thing has the sa:ue right therein as the prior author, which is exclusive to the same extent against all persons except the piior author, or those claiming under him. 985. Private writings. Slc. 085. Letters and other private communications in writing belong to the person to whom they are addressed and delivered; but they cannot be published against the will of the writer, except by authority of law. See Droiie on Copyright, 127 et seq. CHAPTER rV. OTHER KINDS OF PERSONAL PROPERTY. 991. Trade-mark, lohat may be appropriated. Sec. *.;91. One who produces or deals in a particular thing, or conducts a particular business, may appropriate to his exclusive use, as a trade-mark, any form, symbol, or name, which has not been so appropriated by another, to designate the origin or ownership thereof, but he cannot exclusively approjiri- ate any designation, or part of a designation, which relates only to the name, qualit}', or the description of the thing or business, or the place where the thi g is produced or the business is carried on. [Anv'ndinent, approved JLirah 30, 1874; Amendments 1873-4, 224; took efect July 1, 1874.] Code, sees. 3198 Trade-marks: See Pol, 3198. Tlio commissioners, in the Political Code, sec. 3 1 90. say tliat this section is ha.sed maiidy on tlie statute of 20 Vict., c. 88, sec. 1; and refer to Fieltl's Draft Intern. Code, 269, for much valnal)le information. Irade marks.— The importance of the stat- utory enactments and code regulations of the Beveral states concerning trade-marks has greatly increased since the act of congress re- garding them has l»een declared without au- thority ill the national constitution, antl void: Trude-niaric Ccisex, 100 U. S. 82. The act of congiexs of July 8, 1870, finds no support as treating of an invention or discovery within the mcaninL; of the eighth clause of the eighth section of the IVrst article of the constitution of the United States; nor was it within the power given to congress to regulate conunerce, it not liciiig confined to commerce with forci The principle vT'hioli governs all cases of trada-mirks undoubtedly is t!iat no one is permittej lers v. Ifinl; 0.3 Cal. 445. That a gsnerio name, or one merely de- SOriptive of the qualities of an article, cannot be used as a trade-mark, is also laid down in Choya-^ki v. Coh^n, 39 Cal. 501, where "Anti- quarian Bookstore" was sought to be pro- tected as a trade-mark; Gilmaa v. / fiinnewe.il, U2 Mass. 139; U'ofe v. Burke, 7 Lms. 151; S. C, 50 N. Y. 1 15; Stokes v. Laud'jraf, 17 Barb. 60S; Ainod-earj Mt'fj. Co. v. .S/;crtr, 2 8andt. 593; Corwin v. Dalif, 7 Bosw. 222; Blji.iiujer v. Wat- tles, 28 How. Pr. 203; Co-swell v. Davis, 58 N. Y. 223; Os-./oor/ v. Allen, 1 Holmes, 185; Ayer V. Buxhton, 7 Daly, 9; Candee v. Deere, 54 111. 439, wliere it was determiued that tlie term "Moline" in "Moline plow" was not su3ce;iti- ble of use as a trade-mark, Moline being tie name of the town where the plows were made, and of course generic; Bnrke v. Ca.ssin, 45 Cal. 407, where "Aromatic 8chledam 8chnapps" was held not to be entitleil to protection as a traile-mark; and as to "8chnap;i3"a similar decision was reached: Wol/r v. Burke, 7 Lans. 151; S. C, 56 N. Y. 115. Other words and phrases which have been pronounced not capa- bleof use as trade-marks are: " Liehig's Extract of Meat:" Liebi'/'n Extract of Meal Co. v. llanbury, 17 L. T., N. S., 298; "8chiedam Schnapps:" The California and New York casea above cited; and Wolfe v. Barnett, 24 La. Ann. 97; "Desiccated Codfish:" Town v. Stetson, 5 Abb. Pr., N. 8., 218; " Nourishin',' Stout:" Ba'fjet V. Findlaler, 43 L. J. Ch., N. S., 64; "Colonial:" Colonial Life A.ss'n Co. v. Home etc. Co., 33 L. J. Ch., N. S., 741; "Cough Remedy:" Oilman v. JJunnewell, 122 Mass. 139. Geo3rapliical names cannot, as a general rule, be use., 45 N. Y. 291. 80 also as to " Bethseda: " Dunbar v. Glenn, 42 Wis. 218. Individual name. — "A person may have a right in his own name as a trade-mark as against a person of a different name: " Gilman V. Ilunnewell, 122 Mass. 139; Rogers v. Taiutor, 97 Id. 291, 296; Sykes v. Sykes, 3 Barn. & Cress. 541; Croft v. Day, 7 Beav. 84; IhAlaway v. Hoiloway, 13 Id. 209; Burgess v. Burgess, 3 DeG. M. & G. 896. But "the better opinion is that such a party is not, in general, entitled to the exclusive use of a name merely as such, without more:" McLean v. Fleming, 96 U. S. 252, citing Mdington v. Fox, 3 Myl. & Cr. 338; Dent v. Tarpin, 2 Johns. & H. 139; Mancely t. Maneely, 62 N. Y. 427. And he cannot have such a right as against another person of the same name, unless the ilefendant u es a form of stamp or label so like that used by the plaintiff as to represent that the defendant's goods are of the plaintiff's manufacture: Oilman v. linn- H'well, 122 Mass. 139; McLean v. Fleming, 96 U. S. 245, 252; Burgess v. Burgess, 3 DcG. M. & G. 896: Colladay v. Baird, 4 Phila. 139; Sykes v. Sykes, 3 Barn. & Cress. 541; Croft v. Day, 7 Be.iv. 89; Rogers v. Taintor, 97 Mass. 291. Other decisicms in which the question of " name " as trade-mark has been raised are: Holmes v. Holmes, 37 Conn 278; Meriden Britannia Co. v. Parker, 39 Id. 450; Coirnnckael V. L I timer, 11 R. I. 395; Burke v. Ca-ssin, 45 Cal. 407; Coats v. Piatt, 17 Leg. Inst. 213; 8. C, 7 Pittsb. L. J. 361; Stonebreaker v. Stone- breaker, 33 M 1. 252. Misoellansousinstanoes. — Theoouplingto gather in a new combination of words which be- fore had been used apart, and had entered into the common or scientific vocabulary, does not give a right to the exclusive use of such com- bination, where it is not indicative of origin, make, use, and ownership alone, but also or quality and other characteristics: Caswell V 198 Tm-B II, Chap. IV.] OTHER KINDS OP PERSONAL PROPERTY. §§ 902, 993 Davis, 58 N. Y. 223. That a system of num- bering adopted by a manufacturer to designate goods of his make may be used as a trade- mark, see "303," protected in GiUoll v. Ester- brook, 48 Id. 374. But where a combination of letters indicate merely the quality of an article, and forms a well-known term in trade, they cannot be used r.s a trade-mark: Mann- /acluriiiif Co. v. Trainor, 101 U. S. 51. So also with respect to "IXL:" Lichtenstein v. Melliff, 8 Or. 404. The name of a i)lace of business, e. g., "No. 10 South Water street," will be pro- tected: GIni sseysioii is prt'sum!)tive evidence of a person havinj,' no better riglit: as applied to title, and unexplained, is satiicieut title to re- the action of ejectment, for ins'aiice, tho au- 200 Title III, Chap. I.] ACCESSION TO REAL PROPERTY. §§ 1007-1014 thorities upon this point are numerous and de- cisive. It is not necessary that there should be a continued possession, corresponding in point of time to the period prescribed liy the Btatute of limitations, to furnish this presump- tion of riy,ht. When continued for less than this I'eriod, it will prevail as a presumptive right until rebutted by proof of a ])rior posses- Bion, right of succession, legal title, or other evidence sufficitnt to defeat such presumption. In cases whei e no other evidence of title than possession is given by either party, the prior possession must prevail, unless such jrior pos- session has V)een abandoned, or the subsequent possession has been continued until protected by lapse »if time and the statute of limitations. In California it has been held that one in the actual jioisessiuu of real property nm}' rely upon his possession alone until the opposite partj' shows a better right: Ilawxhur.ft v. Lan- dir, 2S Cal. 331. That possession, however Bhort, will entitle the claimant to recover, un- less the defendant can account for such pos- eessioii, or show a prior possession or title in himself or a third person: Potter v. Kiioirles, 5 Id. 87; iSiiiiol V. Hepburn, I Id. 2o-i; Brad- shaw v. Trent, G Id. 172. That in actions for the recovery of land possession is ])riinary evi- dence of title: JJicks tt Martin v. Davis, 4 Id. 67; Plume v. Seward, Id. 94; Hutchinson v. Perli-y, Id. 33; Keane v. Vunnovan, 21 Id. 201; Sacrnrnenlo Valley U. I', v. Mojf'itt, 7 Id. 57; yorii< V. Hitxscl, i> Id. 249; Ei'Si:c. 1014. Where, from natural causes , land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accu- 201 §§ 1015-1019 ACQUISITION OP PROPERTY. [Div. n. Part IV, mulation of material or by the recession of the stream, sucli land belongs to tbe owner of the bank, subject to any existing right of way over the bank. AUuviou. — "Code Napoleon, arts. 556, 5o7; in New York that it belonged to the state: Id. Civ. Code of La., art. 501; Morgan v. Llvinr/- Accuinulation of material: Emans v. Tumbull, siOH, 6 Mart. lilG; Livinp-iton y. Herman, 9 M. 2 Johns. 313. The rule of the cominou law R. 65G. ' That ^'round which a river has added gave to riparian owners the soil formed by im- to your estate Ijy alluvion becomes your own perceptible or inconsiderable augmentation or by law of nations; and that is said to be allu- deposits, on the ground or principle that the vion whicli is added so gradually that no one profits and advantages of a thing belong of can judge how much is added in each moment right to him who, under a change of circum- of time:' Cuojier'a Justinian, lib. 2, tit. 1; 3 stances, is exposed to suffer its damages and B^irn. & Cress. 91. Imperceptible: HaUey v. losses: See U, S. Land-ofEce Report, 1808, by MfConnark, IS N. Y. 147; Emans v. Turnbull, J. S. Wilson, p. 127:" Commissioners' note. 2 Johns. 313. If the formation is sudden, held 1015. Sudden removal of bank. Sec. 1015. If a river or stream, navigable or not navigable, carries away, by sudden violence, a considerable and distinguishable part of a bank, and bears it to the opposite bank, or to another part of the same bank, the owner of the part carried away may reclaim it within a year after the owner of the land to which it has been united takes possession thereof. Avulsion — "Where the soil is suddenly to which it is attached to claim it as his own: taken from one man's estate and carried to an- Bract. 221; 2 Bla. Com. 262; Code Napoleon, other's by the immediate and manifest power art. 559; Civ. Code La., art. 503. Avulsion of a river or stream, the property belongs to differs from alluvion in this, that in the latter the first owner; but an acquiescence on his case the change of the soil is gradual and im- part will in time entitle the owner of the land perceptible: " Commissioners' note. 1016. Mi(7ids in navigable streams. Sec. 101 G. Islands and accumulations of land, formed in the beds of streams which are navigable, belong to the state, if there is no title or prescription to the contraiy. Code Napoleon, art. 560; Civil Code La., art. 504. 1017. In unnavigable streavift. Sec. 1017. An island, or an accumulation of land, formed in a stream which is not navigable, belongs to the owner of the shore on that side where the island or accumulation is formed; or, if not formed on one side only, to the owners of the shore on the two sides, divided by an imaginary line drawn through the middle of the river. This and the following sections are similar 5G0-563; Civil Code La,, arts. 506-510: Com- to those found iu the Code Napoleon, arts, missioners' observation. 1018. Idands formed by division of stream. Sec. 1018. If a stream, navigable or not navigable, in forming itself a new arm, divides itself, and surrounds land belonging to the owner of the shore, and thereby forms an island, this land belongs to such owner. 1019. What fixtures tenant may remove.. Sec. 1019. A tenant may remove from the demised premises, any time during the continuance of his term, anything afSxed thereto for purposes of ti-ade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it ia affixed, become an integral part of the premises. [New section, approved March 30, 1874; Amendments 1873-4, 224; took effect July 1, 1874.] Section 1019, 1, are the various (questions suLrgestecl l)y the sections siiuilar to those of the Cole Napoleon and the of this chapter, or references to such discus- code of Louisiaua." sious: See also note to Bi-tts v. Lee, 5 Id. 3i>8. 1026. Principal part, what. Sec. 102G. That part is to be deemed the principal to whicli the other liaa been united only for the use, ornament, or completion of the former, unless the latter is the more valuable, and has been united without the knowledge of its owner, who may, in the latter case, require it to be separated and returned to him, although some injury should result to the thing to which it has been united. 1027. Same. Sec. 1027. If neither part can be considered the principal, within the rule prescribed by the last section, the more valuable, or, if the values are nearly equal, the more considerable in bulk, is to be deemed the principal part. 1028. Uniting materiah and workinanf^hip. Sec. 1028. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workmanship, unless the value of the workmanship exceeds the value of the materials, in which case the thing belongs to the maker, on reimbursing the value of the materials. 1029. Inseparable materials. Sec. 1029. Where one has made use of materials which in part belong to him and in part to another, in order to form a thing of a new description, without having destroyed any of the materials, but in such a way that they cannot be separated without inconvenience, the thing formed is common to both proprie- tors; in proportion, as respects the one, of the materials belonging to him, and as respects the other, of the materials belonging to him and the price of his workmanship. 1030. Hater iah nf several oivners. Sec. 1030. When a thing has heen formed by the admixture of several materials of different owners, and neither can be considered the principal sub- stance, an owner without whose consent the admixture was made may requii-e a separation, if the materials can be separated without inconvenience. If they cannot bo thus separated, the owners acquire the thing in common, in propor- tion to the quantity, quality, and value of their materials; but if the materials of one were far superior to those of the others, both in quantity and value, he may claim the thing on reimbursing to the others the value of their materials. 1031. Willful tref^l^•, fail PennsfildPf V. /] ill, the law: Jhinn v. IVintlinj/i, \ .Johns. C'h. 329; 19 N. Y. 100. Till" last clause ia section I OH //V)/wv.5/?ia///)/ce, 2Barn. <& Ald.o,")! ;./ar7.-.<0M v. was proposed for enactment in regan I to grants Garninj, 16 Johns. 189:" Coniinissiouers' note. of real property by the New York revisers in Gif!3: See sees. 1146, ^jos<, et seq. 204 Title IV, Chap. I.] TRANSFERS IN GENERAL. §§ ]04.t-10>4 ARTICLE II. WH-^T MAY BE TKAXSFERKED. 1044. What may be tranaf erred. Sec. 1044. Property of any kind may be transferred, except as otlierwisa provided by this article. 1045. Possibility. Sec. 1045. A mere possibility, not coupled -with an interest, cannot be trans- ferred. 1046. Itirjht of re-entry can he transferred. Sec. 104G. A right of re-entry, or of repossession for breach of condition subsequent, can be transferred. "Tliis reverses the rule in sec. 402 N. Y. C. ing section, which is based on our statute:" C. It haniiouizes analogically with tlie follow- Note in the coinniissiouers' report. 1047. Owner ousted of 2)OSsession may transfer. Sec. 1047. Any person claiming title to real property in the adverse posses- sion of another may transfer it with the same effect as if in actual possession. "At common law, the conveyance of land in the grantor has a riglitfiil claim, sliould not be the adverse possession of another was void, and valid:" Commissioners' note. For an applica- this is the law at the present time in several of tion of the principle here indicated, see Lnras v. the states; but the common-law rule never pre- P/co, S.l Cal. 12G, where a pronussory note given vailed in this state, having been abrogated by for an outstandiDg title to land in the adverse statute. Tiie reason of tiie ancient common- possession of another was iield valid, the trans- law doctrine does not exist here. When livery fer being permitted by our code. of seisin was necessary, as it could only be ^lortgage of land in the adverse poss-3Ssion made by the {>erson in possession, it followed, of anotlier is valid: Sec. 202\. This section as matter of course, that a conveyance l>y a foUows as a logical sequence from section '29-47, person out of possession was void. In tliis which permits a mortgage of any interest capa- state the execution and delivery of a deed with- ble of transfer, and from section 1047, which out livery of seisin or entry consummates a validates the transfer of laud in the adverse conveyance, and therefore there is no goo I possession of another, reason why the conveyance of land, to which ARTICLE III. MODE OF TRANSFER, 1052. Wlicn oral. Sec. 1052. A transfer may be made without writing, in every case in which a writing is not expressly required by statute. What contracts must be in v^rriting: See Fraudulent inatnunenta and treinsfers: sec. 1 ()24, /(os/. See sees. 3439 et seq., 2^oist. Unlawful transfers: See sees. 1227 et aeq. 1053. Transfer grant defined. Sec. 1013. A transfer in writing is called a grant, or conveyance, or bill of sale. The term "grant," in this and the next two articles, includes all these instruments, unless it is specially applied to real property. [Anii^ndment, a/j- proved March, 30, 1874; Amendments 1873-4, 225; took effect July 1, 1874.] Covenants applied brom a ♦* grant " of it being extended by the original section to realty: See sec. 1 1 13, post. every instrument in writing l)y which property The code examiners, whose amendment is is transferred, whenever the word was used in hereadopted, restricted the meaning of "grant," this title. 1054. Delivery necessary. Sec, 1054. A grant takes efifect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor. Delivery is essential to the vesting of the v. Bunch, .SO Id. 208; Hihhprd v. f^mifh, 3 West grantor's interest in the grantee; and it is well Coast Rep. 44G; Baiikof lleaUi^bnrijw Bailhace, settled that a deed takes effect only from the Id. 140; tiyam v. S/wiicer, 101 111. 421); Hanky time of its delivery: Dytton v. Brad-i/iaw, 23 v. Wdson, 77 N. (J. 21G; Calhoun v. Einiijrani Cal. 528; Barr v. Schroeder, 32 Id. CIO; Mich Co., 93 U. S. 124. 205 IS 1055-1057 ACQUISITION OF PROPERTY. [Div. II, paht rv. Delivery is a question of fact and depends more upon the intention of the parties tli.ui iipoii the mode of fulfillins^ the intention: // 'S- iiiiffH V. VatKjhii, 5 C'al. 315; and see sec. 1059, infra; Diiei- v. Jaraea, 42 Md. 492; WeUhoni v. Weaver, 17 G;i. 2G7; Cannon v. Cannon, 26 N. J. Eq. 319; Den v. Ftrlee, 21 N. J. L. 285. The elements of a delivery are that the wiit- ing must be meant hy the maker to take imme- diate effect, and be pn-sumably, or in fact, accepted by the otlier party: Harris^ v. Harris, 69 Cal. 020. It is evidence of the delivery of the deed that it is in tlie possession of the grantee: Branson v. Cariithers, 49 Id. .374; IVr- liol V. Vcrnol, G3 N. Y. 45; Whart. on Ev., 8ecs. 1313, 1314; and found on her death among her paper.s: Kidderv. Stevetis, GOCal. 414; or that it was recorded by the grantor or by some one claiming under him: Burr v. Schi'oedfr, .32 Id. 610; Beiidey v. Atwil/, J2Id. 231; Hollldaif v. White, 33 Tex. 4G0; Union Ins. Co v. Camp'^-l/, 95 111. 267; Cecil v. Bearer, 28 Iowa, 241; 2 Whart. on Cont. , sec. 677; and tiiis though the deed be retained by the grantor: Kerr v. Birnie, 25 Ark. 225; Hohinmn v. Gonhl, 26 Iowa, 89; Cec'd v. Beaver, 28 Id. 241; Milrh'U V. Ryan, 3 Ohio St. 377; Masterson v. Cheek, 23 111. 72. A deed from father to son, acknowi- 1055. Date. Sec. 1055. date. Presumption of delivery: See sec. 1054. Applicable to bill of sale: McFadden v. Mitchell, 61 Cal. 148. edged and recorded at the request of the gran- tor, and produced on the trial by the grantee, is admissible without other proof of delivery: llV'/f/ V. //erm'(7i, 59Cal. 507. The term "haa executed unto," applied to instruments in writ- ing imports both making and delivery: Baglcy V. Mickle, 9 Id. 4.30; and acknowledgment of married woman's deed; Jo-^e/zh v. Diiuijherty, 60 Id. 358. It imports every act requisite to make the instrument operative and effective: Id. Delivery cannot be presumed from the sign- ing anrl acknowledging a deed: Boyd v. Slay- bark; 63 Cal. 493. Delivery is not complete until the grantor has so dealt with the instrument delivered as to lose all control over it. Whetlier lie lias so dealt with it depends upon tiie intent to be deduced from all the surrounding circum- stances: Hlbberd v. Smith, 3 West Coast Rep. 446. Delivery to a third person not authorized by the grantee to receive it will not defeat attaciiing creditors of the grantor: Id. Assent of grantee is necessary to delivery: Ilihherd v. Smif/i, snpni. Constructive delivery: See sec. 1059, infra. Contract in w^riting takes effect only from delivery: See post, sec. 1626. A grant duly executed is presumed to have been delivered at its Presumption of delivery at date of grant is not conclusive: TreadwtU v. Reynolds, 4n Cal. 171. 1056. Delivery to grantee is necessarily absolute. Sec. 105G. A grant cannot be delivered to the grantee conditionally. Deliv- ery to him, or to bis agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made. ing their life-time. Chandler v. Chandler, 55 Cal. 267. See, for the construction of a deed executed to the grantee upon the condition that the grantors should retain the use and control dur- 1057. Delivery in escrow. Sec. 1057, A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow. A deed delivered a3 an escrow takes effect from the time of the original delivery, upon the happening of the condition: Wheel- wright V. Wh-elwnijhf,, 3 Am. Dec. 6G; /I.Uc'i V. Hatch, 6 Id. 67; Black v. /foyt, 33 Ohio St. 203. It is essential to an escrow that tiie deed be no Ioniser under the control of the grantor: Fitch V. Bnnch, 30 Cal. 208. If the condition of delivery over is the order, of the grantor, the deed is deemed in law to ba still in his pos- session: Id. The grantee acquires no title to the land until the conditions are complied yith: Dyson v. Bradshaw, 23 Id. 528. Hand- ing a deed to one of the directors of a bank, the grantee, with directions not to e (leteiniiued l)y the jury: //axilii'/s v. McMickle, 9 ItL 430; sec. 1054, Vaughn, 5 Cal. 513; Bensley v. Atwill, 12 Id. 1060. Grant as a gratuity. Section lOGO was repealed by act approved gratuity takes effect upon its execntion, even March ."0, 1S74; Amendments 1873-4, 225; took thougli the grantor retain [jwasesaion, xuilesa a effect July 1, 1874. contrary intention appears." It was as follows: "A grant made as a mere ARTICLE IV. INTERPRETATION OP GRANTS. 1063. Grants, how interpreted. Sec. lOGG. Grants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided in this article. Midford V. Le Franc, 26 Id. 88. The words "northerly," "southerly," "easterlj'," "west- erly'," mean due courses, unless controlled by other words, or by natural objects: Bosworth v. Daiitlew, 25 Id. 296; Fratt v. Woodward, 32 Id. 219; Colton v. Seavey, 22 Id. 496. The grantor may by a clause inserted in the instru- Interpretation of grants. — The first step in the construction of a deed is to ascertain tlie nndeistandiiig and intention of the parties at thf! time of contracting: Brawtan v. Airsick, 10 Cal. 95; sec. 1G36, post. To arrive at this iu- tenti'in, the fiUiation of the parties and the Bubjcct-matter should be considered, and the whole deed slioull be taken together: Walsh v. Ilil', 33 Cal. 482; Brannan v. Mesick, supra; eec. 1641, ]>o^t ; Pico v. Coleman, 47 Cal. 05. If tlie meaning of the language is doubtful, the court will consider the surrounding circum- etanc^cs, and call to its aid the acts of the par- ties done under it as a clew to their inteutiou: nient give to the words he used a different meaning from that which they generally bear: Morrison v. Wilson, 30 Id. 344. So, wliere a grantor uses technical words otherwise than in their technical signitication: C P. R. R. Co. v. Beat, 47 Id. 151. 1067. Limitations, how controlled. Sec 10G7. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct. 207 §§ 1068-1084 AOgUISITION OF PROPERTY. [Drv. II, Part IV, 1068. Rfcilnls, when resorted to. Sec. 10G8. If the operative words of a grant are doubtful, recourse may be had to its recital to assist the constructions. 1069. Interpretation against grantor. Sec. lOGD. A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, ifv to be interpreted in favor of the grantor. A deed is to bs interpreted in favor of a public officer or body to an indlvilual, it ia the gran'c33, as a general rule: Doit'je v. IVal- presumed ia favor of tlie grantor t'.iut tlie am- tet/, '22 C.il. 224; Mider v. Bj:;jk, 2.5 Id. 173; biguity was occasioned by the grantee: J ick>^on Piper V. True, 33 Id. 63G; Salmon v. WiUon, 41 v. AVecM, ;] Id. 293. See, for tlie construction Id. 593; llaijer v. Sperl, 32 Id. 579; Wilcocsoii in favor of tlie grantee of a douljtfiil clause in a V. S])raijue, hi Id. G40; but in grants made by reservation in a deed, Muller v. Uojjs, supra. 1070. Irreconcilable provisions. Sec 1070. If several parts of a grant are absolutely irreconcilable, the former part prevails. The first of repugnant clauses in a grant Chaae v. Bradley, 20 Me. 53S; Jarhann v. 7r«. prevails: J/areiin v. Dale, 18 C d. .339; ,/ewftt laid, 3 Wend. 9Jj Batterjield v. Cooper, 6 Cow. v. Jewell, IG Barb. 157; but otherwise where 481. the second is only a qualification of the tirst: 1071. Meaning of" heirs" and " issue" in certain remainders. Sec. 1071. Where a future interest is limited by a grant to tate effect on the death of any person without heirs, or heirs of his body, or without issue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor. 1072. Words of inheritance unnecessary. Sec. 1072. Words of inheritance or succession are not requisite to transfer a fee in real property. ■Word3 of inheritance unnecessciry: Stats, "What estate a fee: See sec. 762, ante, 1855, 171, sec. 3. A deed which in its granting part simply A fee-simple is presumed to be intended grants, bargains, .ind sells the land, without to be conveyed, unless the contrary appears any words of inheritance, conveys a fcc-siiuplc: from the grant: See sec. MOo, po^t. ilonlgomery v. Sturdlvaut, 41 Cal. 290. lint Devise of i^o. — Word "heirs" not neces- the title thus conveyed may be limited in tlia aary: Sec. 1329, post. habendum clause to an estate for life: Id. ARTICLE V. EFFECT OF TRANSFER. 1083. What title passes. Sec. 1083 A transfer vests in the transferee all the actual title to the thing transferred which the transferrer then has, unless a different intention is expressed or is necessarily implied. 1084. Incidents. Sec 1084. The transfer of a thing transfer."? also all its incidents, unless expressly excepted; but the transfer of an incident to a thing does not transfer the thing itself. Everything essential to ihe benofloi l 4 Paige, 77; Langdon v. Duel, 9 Wend. 80; enjoyment cf tho propsrty, in the aljseuce Jackson v. Blodgett, 5 Cow. 232. r>ut tho of language indicating a different iutention ou transfer of the incident does not transfer the the part of t!ie grantor, passes to the grantee: thing itself: Kelloyg v. Smith, 20 N. Y. 18; Spark-H v. JJcs, 15 Cal. 18G; BaUle v. Coil, 23 BaUle v. Coil, Id. 404. N. Y. 404; Lam/mian v. Nilk^, 21 Id. .')03; See sees. 1 104, 3340, po8«. JJuttemeier v. Albro. 18 Id. 48; Leroy v. Plait, 203 Title IV, Chap, n.] TRANSFER OF REAL PROPERTY. §§ 1085-10^3 1085. Grant may inure to benefit of stranger. Seo. 1085. A present interest, and the benefit of a condition or covenant respecting pi-operty, may be taken by any natural person under a grant, ftlthough not named a party thereto. "This was not so at common law: Honibeck stated in section 10S5: 8 & 9 Vict., c. 105, V. Wedbrook, i) Johns. 73; CraUj v. Wells, 11 sec. 5:" Commissioners' note. N. Y. 315. But the law in England is now as CHAPTER II TRANSFER OF REAL PROPERTY. Abticle I. Mode of Transfer 1091 U. Effect of Tka^^sfeb. 1104 ARTICLE I. MODE OF TRANSFER. 1C91. Iteqjiisiten for transfer of certain estates. Sec. 1091. An estate in real property, other than an estate at "will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing. Requisites of transfer of real property: People v. White, G Cal. 75; so also is a verbal See corresponding section in Code of Civil I'ro- agreement by tlie vendee to reconvey if he fails cedure, sec. 1971. In their report of tliis code, to j)ay the considenition money on ilemand; the commissioners make tiie following explana- Gallai/her v. AJarx, 50 Id. 23. A release of aa tion of the use of the word "grant:" "A trans- equitable estate in land can only Ikj proved by fer of real property is called a grant. At first it a deej, 27 Id. 119. The derivatives, it is great economy in time and rules that would vitiate a conveyance made by Bpace— 'grantor' and 'grantee' — which can be an individual apply etjually to corporations: 60 often used in r. conveyance in place of ' party Smith v. Morse, 2 Id. 524. The statute rcquir- of the first jjart 'and ' party of the second part * ing an instrument in writing to create an inter* (see form of grant). These we think are sufii- est in land does not apply to the taking up ol cient reasons for the change from 'tieed' to mining claims. A more verbal authority t» 'grant.' Besides, 'deed' more especially im- one man to take up a claim for another is suf- plies a seal, wiiieh has been abolished." ficient: Gore v. Mc/Jraifer, 18 Id. 582. A A sale of land at auction where no note or written but unsealed transfer is good as a con- memorandum is made by the auctioneer, and tract to convey: On-en v. Frink, 24 Id. 171. no writing exists between the parties, is void: See further sec. lG2i, subd. 5, and note. 1092. Form of grant. Seo. 1092. A grant of an estate in real property may bo made in substance as follows: " I, A. B., grant to C. D. all that real property situated in (insert name of county) county, state of California, bounded (or described) as follows (here insert description, or if the land sought to be conveyed has a descriptive name, it may be described by the name, as for instance, ' The Norris Ranch '). " Witness my hand this (insert day) day of (insert mouth), 18 — . A., xj. Form of grant. — "It will be observed that writing imports a consideration: Seo subd. .^9 the form in section 1092 omits the recital of a of see. 19G3, Code Civ. I'roc.:" Comini.isioncrs' consideration. Such a recital is, under the code, note. That a written instrument is presump- unnecessary in any kind of a contract. The tive of a consideration, see seo. 1G14, 2>ost. 1093. Grant by married women, how acknowledged. Sec 1093. No estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her, unless the grant or Civ. Code— 14 209 g§ 1094-1104 ACQUISITION OF PROPERTY. [Dir. II, Part IV, instrument is acknowledged by her in the manner prescribed by^ections eleven hundred and eighty-six and eleven hundred and ninety-one. Conveyance by married -women: See sees. 118G, 1187, and 1191, post, and note to sec. 1187. 1094. Power of attorney of married women, how acknowledged. Sec. 1094. A power of attorney of a married woman, authorizing the execu- tion of an instrument transferring an estate in her separate real property, has no validity for that purpose until acknowledged by her in the manner provided in sections eleven hundred and eighty-six and eleven hundred and ninety-one. Married woman's power of attorney. — O. ct S. M. Co., siqyra. The husband may be Prior to the act of April 3, 1863, a married the attorney in fact, and through him the wife woman was incompetent to execute a power of may make a valid executory contract affecting attorney: Dow v. Gonl I i are cliamjed. Sec'IIon 1. Any person in whom tlie title of real estate is vested who shall afterwards, from -any cause, have his or lier name changeil, shall, in any conveyances of real estate so held, set forth tiie name in which he or she derived title to said real estate. Record of conveyances made (>i/ jmblic 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, sliall, when recorded l)y the county recorder, be by him alphabetically indexed in the "index of grantors," botii in tlie name of the officer making such sale and in the name of the person owning the property so sold. .IndexiiKj of such coiwryancex. Sec. .3. It is hereby made the duty of all county recorders to alphabetically index in the "index of grantors," both in the name by whicli title was acquired and also the name by which ■■ the same was conveyed, all conveyances referred to in section one of this act. Sec 4. This act shall be in force from and after its passage. AKTICLE II. EFFECT OF TR.\NSFER. 1104. What easement!^ pans with properly. Sec. 1104. A transfer of real property passes all easements attached thereto, . and creates in favor thereof an easement to use other real property of the per- son whose estate is transferred, in the same manner and to the same extent as Buch property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. Transfer carries easements: See the gen- the commissioners say: "Althou'rh the question eral subject of easements, sec. 801, ante. In does not seem to have been decided, there can explanation of the last clause of section 1 104, be little doubt that the grantee is entitled to 210 Trru! IV, Chap. II.] TRANSFER OF REAL PROPERTY. §§ 1105-1108 the benefit of these quant easements, whether at the time a grant is bargained for, or at the time when it is actually delivereil." That the grantee takes by implication all such eastiiiieuts in the laud remaining in the grantor as are necessary for the reasonable en- joyment of tlie part conveyed, see Cave v. Crafts, 53Cal. 13o. Transfer of a thing -ceuries its inciclente: Sec. 10S4, aitie. 1105. Wlien fee-simple lille is presumed to pass. Sec. 1105. A fee-simple title is presumed to be intended to pass by a jrrant of real property, unless it appears from the grant that a lesser estate was inteu ded. Fee-Simple presumed to pass: Mahury v. Ruiz, 58 Cal. 11, 15. See sac. 1072, cute. 1138. Subseqitenthj acquired title passes by operation of law. Sec. hog. "Where a person purports by proper instrument to grant real property in fee-simple, and subsequently acquires any title or claim of title thereto, the same passes by operation of law to the grantee or his successors. Deed passing after-acquired title.— The .30 LI. 347; Kirbddle v. Larrabee, 31 Id. 457; effect upon a conveyance of land in fee of this Green v. Clark, Id. 593; Cadiz v. Major--^, 33 Id. proMsioii, which is in substance a re-enactment 289. The conveyance of all the grantor's rij;ht> of t! e tliiity-third section of the act concern- title, and interest, with covenant of warranty, ing conveyances, is, accoiding to the code com- does not pass au after-acquired title; the cove- mifsiuiierti, "the same as if it were written nant applies simply to the title conveyed: liar- upon it.-i f Ace that the grantor conveyed all the reit v. Birtje, 50 Id. 655; and so, also, Kimball estate wliich he then possessed, or whicii he v. Sem/ile, 25 Id. 440. niigiit at an^' time thereafter acquire: Clark \. See the discussion of the effect of covenant Baker, I4(.al. G30. As a quitclaim deed only of warranty upon an after-acquired title, which purports to release and (juitclaim wiiatcver in- covenant, it seems, the above section intended terest tiie grantor possesses at the tiuje, San FrancUco v. Lawton, 18 Id. 405, it does not con- vey a i-ubst'ciuently acquired title: Morrixon v. Wilson, 30 Id. .344; Cadiz v. iVujor, .33 Id. 289." If the owner of land conveys by deed of bar- gain and s le, it will pass the title subsequently acquireil at a sheriff's sale in foreclosing a mortgii'.'e existing before the bargain and sale deed was given: Green v. Clark, 31 Id. 591. And generally a grant, bargain, ami sale deed carri. s an after-acquiremmissionei-s' note. Non-per- subsequent puts purchasers upon inquiry as to formance of an illegal comlition subsequent, as their performance: Brannan v. Mesick, 10 CaL the procurement of witnes.-^es to testify to a 95. particular fact, does not prevent the vesting of Reoording instruments: See sec. 1158, the legal title in the grantee: PnUfffion v. /)o7i- post, and note. ner, 48 Cal. .369; a deed on a condition subse- Unreoorded deed void as to subsequent quent passes the title to the grantee: Sped v. ftonayiJe purchasers: Sec. 1214, ^06<; sec. 1107, O're'jif, 51 Id. 198; Clayton v. Widker, 10 Id. 450, aide. mo. Grant on condition precedent. Sec. 1110. An instrument purporting to be a grant of real property, to take effect upon condition precedent, passes the estate upon the performance of the condition. \ Amendment, approved March 30, 1874; Amendments 1873-4, 225; took effect JaUj 1, 1874.] Performanoe of the condition will be ex- 95; but after an absolute conveyance has been cused where t!ie grantor puts it out of the made, the grantor cvnnot impose conditiona power of the grantee to perform: lloiujhton v. upon the grantee, tliere being no estate in the Steele, 5S Cal. 421; a con\eyance upoii a con- grantor upon which the conditions can take ef- dition ])recedent passes no title until the con- feet: Alemany v. Daly, 36 Id. 90. dition is performed: Brannan v. AMeskk, 10 Id. 1111. Grant oj" rents, reversions, and remainders. Sec 1111. Grants of rents or of reversions or of remainders are good and effectual without attornments of the tenants; but no tenant who, before notice of the grant, shall have paid rent to the grantor, must suffer any damage thereby. See arde, sec. 821, and note. 1112. Boundary by highway, wtiat passes. Sec 1112. A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center therof, unless a different intent appears from the grant. [Amendment, approved March 30, 1874; Amendments 1873-4, 225; took iffect July 1, 1874.J See aide, sec. 831, and note. 1113. Implied covenants. Sec 1113. From the use of the word " grant" in any conveyance by which an estate of inheritance or fee-simple is to be passed, the following covenants, and none other, on the part of tlie grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless I'estrained by express terms contained in such conveyance: 1. That jjrevious to the time of the execution of such conveyance the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; 2. Tliat such estate is at the time of the execution of such conveyance free from incumbrances done, made, or suffered by the grantor, or any person claim- ing under him. 212 Title IV, Chap. III.] TRANSFER OF PERSONAL PROPERTY. §§ 1114-1140 Such covenants may be sued upon in the same manner as if they had been expressly inserted in the convej'auce. Stats. 1S55, 171, sec. 9. "The operative estate in a corporeal hereditament. It has? he- words of a release in a simple qnitclaim deed come a generic term applicable to t'le transfer are 'remise, release, and quitclaim.' When of all classes of real property: .9ft)( /Vancwco ifc the word 'grant' is hereafter employed, or 0. R. li. Co. v. Oakland, 4,3 Cal. 502, when the words 'grant, bargain, and sell' have The covenants implied in a grant, bargain, lierutofore been employed, the operation of the and sale deed are not broken l)y an uiitstand- convcyanee wil be nut meiely to release, but ing title in a third person: Bri/an v. Swain, 5G to transfer any interest which tlie grantor pos- Cal. GIG. Bessed at the execution of tliedeel: Tonrhard Covenants ruanins with land: See sees. V. Cro'r, 20 Cal. IT.O; MidW v, Boost. erty in tiie chattel passes or not, see Kliiee- Cot- Delivery: See sees. 17J3 etseq., and sec. ton C(i.ies 22 Wall. 180; Hatch v. (HI Co., 100 1054. ante. U. S. 124; Terry v. Whedr-r, 25 N. Y. 520; Agreement to sell and bay defined: See Callajhnn v. Myers, 8!) 111. 560; Fletrher v. Fn- sec. 1729, poA- Ullmanv. Barnard,! Gr:\y, 5rA. On the other ing v. Breed, 14 Alien, 370; Plizzek v. Wh'df, hand, a sale may be I'omplete before delivery so 23 Kan. 621; Wahlronx. Chnse. .37 Me. 414; as to throw risk of loss upon the vendee: Ty0. All the authorities agree that there must be a delivery of the property intended to be the subject of the gift: Daniel V. Siritli, supra; Ham v. Moore, Adrn'r, 8 Ohio St. 242; Fiero v. Fiero, 5 Thoinp & G. 151; Casey. Dennison, 9 R. I. SS; McGnnhv. Hennolds, 116 Mass. 566. In Daniel \. Smith, supra, certain money in bank was claimed te have been given causa mortis, but the evidence merely showing a request on the jiart of the delivery of a certificate of deposit by the decedent that a third person take charge of all decedent to the claimant, which delivery con- his effects, including the pass-book, ami give tesiants urged, and successfully, was not a suf- them to him if he recovered, if not, to his ilaugh- ficieiit delivery to make the transaction a valid ter, and that the pass-book was not present afc gift CI luiu mortis. the time nor placeil under the control of the For a collection of decisions upon the topic third person, the court denied the claim. 1150. Whfii gift presumed to be in view of death. Sec 1150. A gift made during the last illness of the giver, or under circum-»- stances which would naturally impress him with an expectation of speedy death;, is presumed to be a gift in view of death. See note to sec. 1149. 215 |§ 1151-1 15& ACQUISITION OP PROPKRTY. [Div. II, Part IV, 1151. Jirvocatiori of gift in view nf death. Sec. 1151. A gift in view of death may be revoked by the giver at any time, and ia revoked by his recovery frjm the illness, or escape from the peril, under the presence of which it was made, or by the occurrence of any event which ■would operate as a revocation of a will made at the same time; but when the gift has been delivei'ed to the donee, the rights of a bona fide purchaser from the donee before the revocation shall not be affected by the revocation. \Ani('.ndinenl, approved Marcli, '60, 1874; Amendments 1873-4, 220; took cjf<'i:i ,Mii 1, 1874.] Revokiug gift oausamortia: See for the va- Gift inter vivos not revooabls: See sec. rious o:nulitions which will lieteat a gift made 1148, supra. in \'iew of death, the note to sec. 114'J, supra. 1152. Effect of will upon gift. Sec. 1152. A gift in view of death is not affected by a previous will; nor by a subsequent will, unless it expresses an intention to revoke the gift. 1153. ]Vhen treated a.s legacy. Si-:o. 1153. A gift in view of death must be treated as a legacy, so far as relates only to the creditors of the giver. " It is subject to the debts of the iloDor upon in the donee: Ross. Leg. 26:" Commissioners' a deliciency of assets: 1 P. Wms. 405. But it note. Deficiency of assets is a oonditiou sub- does not fall within an administration nor re- secjuent, workiui^ a revocation of the gift: See quire any act iu the executors to pt>'n, or out of its proper order, is not a good re- cording: N. t. L. Ins. Co. V. Il7i/7f, 1 7 N. Y. 4G9. In Smith v. Brannttn, l.'l Id. 107, it SL'cms that a record made by a recorder elected witiiout au- thority of law is of no elhcacy; and i:i CaUlivell V. Center, 30 LI. 539, a record in lead pencil was declared bad. This decision was l);'.sed ujion the language of the statute and the general purpose of the record. The validity of the record of course is to be tested by the i-equircments of the registration laws. For example, in regai d to an erroneous face t)f the record. If the description is eiTo- indexing of a record, some\lecis;ons turn upon neous, or d(.es not cover all the land affected, the duty of the recorder to index: Sec Priiir/le the suhseqnent purchaser is ne'ertheless v. />«»//, 37 Wis. 447; 'S'c/tf// v. iS'Vi«, 70 Pa. 8t. obliged to lodk only to the record, and is 398; Cliatham v. Bra /ford, 50 Ga. G'J2; Curtis not charged with notice of the conveyance of v. Li/man, 24 Vt. 338. See Pol. Code as to more or other land tl>an is described: CVtrt»;6p/'- duty of recorder, sees. 4234 et se(]. ; and see lain V. Bell, 7 Cal. 294; Sanyer v. Cra'ijne, 10 post, sec. 1172. Vt. 555. Tiiere is, however, a difFerence of Uiiautliorized recording. — As we h.-ive opinion in this particular among the courts: See seen that the record of a defectively exe- cuted instrument does not inii)art notice, so registration of an instrument not authorized by statute to be recorded is of no effect to fix no- tice upon third persons: Mesirk v. Saiiderlavd, G Cal. 207; James v. More if, 14 Am. Dec. 475, and nute 512. Prooeedingg to correct imperfect ac- knowledgment: Sees. 1202, 1.303. /jost. Bona fide purohasars wijliout notice whose '>6t. Effect of recording, or want thereof: See sees. 1213, post, et seq. the note to Sawyer v. Adams, 30 Am. Dec. 4G3. 3. An instrument ought to be properly i-e- corded, i. e., it should be in the book set apart for instruments similar to the one recorded. A deed intended as a mortgage must be recorded with the mortgiJges; if placed in the book of deeds, it does not impart notice: Sec. 1171, post; White v. Moore, 1 Paige, 5Vtl; Brown v. Dean, 3 Wend. 208; D<'y v. Dunham, 2 Johns. Ch. 182; Manufacturers' Biin/cv. B nikofPenn., 7 Wattn& S. 335; Friedlyv. Ilamiltrm, l7Serg. & P. 70; Edwardsw Trumbull, 50 Pa. St. 509; Jackson V. Van Valkenhurn, 8 Cow. 2G0; Shaw V. Wifth/re. Go Me. 485; Purdij v. Hnntin(jton, 42 N. Y. 343. Filing sheriff's certificate does not give notice to third persons, if the recorder does not keep it in the place set apart for such 1159. Judgments may be recorded without acknoivledgment. Sec. 1159. Judgments affecting the title to or possession of real property, autbenticated by the certificate of tbe clerk of the court in which such judg- ments were rendered, may be recorded without acknowledgment or further proof. Recorder must file judgments: Pol. Code, sec. 423S. 1163. Lrltera patent may be recorded without avknoivledgment. Sec. IIGO. Letters j)atent from the United States, or from the state of Cali- fornia, executed and authenticated pursuant to existing law, may be recoi'ded without acknowledgment or further jjroof ; and where letters patent have been lost, or are beyond the control of any party deraigning title therefrom, or for any reason they remain unrecorded, any person claiming title thereuader may cause a transcript of the copy of such letters patent kept by the government issuing the same, duly certified b}- the officer or individual liaving lawful cus- tody' of such copy, to be recorded in lieu of the original; and such recorded cojiv shall have, prima facie, the same force and effect as the original, for title or for evidence, until said original letters patent be recorded. {Amendment^ approved April 1, 1878; Amendments 1877-8, 85; took effect sixtieth day after posf'nt, approved March 30, 1874; Amendments 1873-4, 227; took rffed Juhj 1, 1874.] Aclinowl'Ddstnents witliout tho United agent at a foreign port conlil not take the States may bo liiatL; by consul of the Uin,.eil acknowledgment of the execuciou of a deed of States of any giadc: Molt v. Smith, IG Cal. realty in this state: McAIiiin v. O'CoiDior, 27 533. Prior to January 1.5, lSo9, a consular Id. 238. 1134. Dt'puhj can take acknowledrjment. Sec. 1184. AVhen any of the officers mentioned in the four preceding sections are authorizDd by law to appoint a deputy, the acknowledgment or proof may be taken by such deputy, in the name of his principal. See aide, note to sec. 1181. 11S5. Bcq" is lies for avknoxcleclgments. Sec 1185. The acknowledgment of an instrument must not be taken, unless the officer taking it knows, or has satisfactory evidence, on the oath or affirma- tion of a credible witness, that the person making such acknowledgment is the individual v*ho is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation. Aclinowled^msnts. — The object of an ae- knowlcd ,nieiit is twofold: to entitle the in- Btrumeut to be nsed as evidence without further proof, and to enable it to be recorded: Fojarly V. Fiiilai, 10 Cal. 2.19. As between the parties, a deed is good akhou ,'h not a'-knowledgcd: JIa-stiiiijM V. Vaiuj/iii, 5 Id. 31.5; Good>'iioujh. v. Warn II, 5 iSaw. 434; Jackson v. Allen, 30 Ark. 110; Hill V. Saiiiuct, 21 Miss. 307; McMahoii V. IJ.-Grair, 2'j Wis. Gl 1. When acknowledged, a deed may be nsed in evidence without; further oilicer to be the person executing the same: proof: Fo(iarli/ w Fiiilai/, supra; Chirk V. Tro'i, Krlsey v. Uunlap, 7 Id. ICO. If it state that 20 II. 210; Laudrrs v. BjUoii, 23 Id. 405; the person was proved to Ije tlie nia';er, the llinchiiff y. JJiumtii, IS Wis. 13j; Hutchison ccrtiacate should also recite that it was proved V. lhi-4, 2 Gratt. 304; Samuels v. Uorrowsca'i', on tlie oath of a witness. .aivi:ig his name: ment and form of the certificate is all that is necessary: Henderson v. Gretcell, 8 Cal. 581; Wells V. Alkinson, 24 Minn. IGl; Dorn v. Best^ 15 Tex. 02; Monroe v. Arledrje, 23 Id. 478; Wise v. Posllewait, 3 W. Va. 4j2. For exam- ple, a certiiicate reciting that the parties "were known t>) him," omitting the word " person- ally," is good: Hopkins v. Vi'lancy, 3 Cal. 85. Tiie certi.icate should state that the maker of the deed is either known t > or proved to the 104 Mais. 207; Carpenter v. Dexter, 8 Wall. 532; althougl) in so:ne states the rule see.ris to be oLlierwisc: 2 Greeul. iiv., sec. 230. As to the necessity of a proper acknowledgment in order to entitle the instrument to be recorded, Bee supra, .sec. 11.53, and note. Th.0 corcOiatD i3 conclusive as to all matters t.) which it is the duty of the oScer to certify where lio.ia Jiile purchasers for value Kimball, v. Sempte, 25 Id. 410; JTrMinn v. O'Connor, 27 Id. 238; Fo-jarfif v. Fudaij, 10 Id. 239. Tlie following certiiicate was held bid, the omission being of such a character as to admit of the substitution of a wor I that would not comply witli the statute: " Before me, etc., personally appeared A. B. C, to be the individual described in, aad wlio exe- cuted." etc.: Il'oy V. Flmj irljf, G Id. 224. are coaeerued, l)at prima facie evidence only And see Talburt v. Stewart, 30 Id. G02, fi^r between the parlies, and open to rebuttal on the ground of frauil or imposition: 2 Wliart. on Ev., sec. 10.52; Martindale on Conveyanc- ing, sec. 2o3. Tiie presumjition is that the certiiicate states the fact: Baldwin v. Born- heimer, 43 C.d. 4.33; see also , 5 Cai. 31.'); LUlle V. Dotliie, 3-2 Ark. iolh' Ballard v. Pcrr;/, 28 Tex. 347; Buell v. Irwin, 24 Mich. 145; Ti'xas Land Co. V. Williums, r>l Tex. 51. Unless required liy express statute, the seal is not essential to the validity of even a notary or commissioner of deeds: Poivers v. Bri/ajit, 7 Port. 0; Harrison v. Simonfi, 55 Ala. 510; Irv- inif V. Broivudl, 1 1 111. 402; Thompson v. Rob- trison, 9 B. Won. 383; Thompson v. J'Jorgan, 6 Minn. 292. A certificate executed by a deputy clerk with the seal of the court atfixed is yood: Tuuihiird V. Crow, 20 Cal. 150. As to the suiiiciency of a certificate over a private seal, see Stark v. Barrett, 15 liL 3G1; Fo'jarty v. Saw'in; 23 Id. 570. Aclmowlodsnisnt of deeds, •whsu fatal- ly dof 3 otivo aud V7liea not. — For n careful consideration of the (iiiestions suggested by tliis subject, including those touched upon above and many others, see the note to LiV' iu'iston V. KfiteUc, 41 Am. Dec. 103. Correcting certiucat©: See sec. 1202, poat^ and note. 1186. Acknowledgment by married women. Stc. 118G, The acknowledgment of a marriecl woman to an instrument pur- porting to be executed by her must notba taken, unless she is made acquainted by the officer with the contents of the instiniment on an examination without the hearing of her husband; nor certified, unless she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution. Acknowlsdsments by married ■women. A married woman's acknowledgment is bome- thing more than a mere authentication of her deed. And bet'ure the code the ccrtiiicato was also a part of her deed. "The certilicate is absolutely essential to the deed, and is a ma- terial part thereof:" Lconis v. Lazzurovich, 55 Cal. 50; Mariner y. Saiindcr,5Gihu. I2i>; JIartin V. JJwi'U;/, 21 Am. Dec. 245; Mason v. Brock, 12 111. 270. Diit under the code the certificate is not an essential part of a married woman's deed: Wi'dd v. Herman, 59 Cal. 507. The acknowledgment is a part of the execution : Id.; Joseph V. jJouijherty, CO Id. 3CS; Bank of IJpaldsbnrij v. Bailhnce, 3 Vv'est Coast Rep. 140. And iin acknowledgment by a married woman a3 thougli a, feme sole vitiates the dee 1: Durfee Garveij, 3 Id. 350. It was therefore even more essential i.i the ciiso of a married woman than of others thr.t the certilicate sliould slio'.v a com|iliaucc with the statute: Landers v. Bi.lton, 20 Cal. 408; Ewald v. Cohbett, 32 Id. 493; Mams'U, V. Kern, 57 Mo. 478; Deii. I. 585; Grove v. Zambro, 14 Cratt. 501; Linn v. Pat ton, 10 W. Va. 187; Belcher v. Weaver. 40 Tex. 293. For a further consideration of a married woman's acknowledgment, sec the note to Livinf/ston v. KHtelle, 41 Am. Dec. 179 ct seq. Correotiiis married •woman's certi5cato of asknow^ied^ment: See note to sec. 1202, po6t. U87. Same. Sec. 1187. A conveyance by a married woman has the same effect as if she were unmarried, and may be acknowledged in the same manner, except as men- tioned in the last section; but such conveyance has no validity until so ackuowl- edffed. Conveyance by married v7oman. — A married woman may convey her separate prop- erty witiiout lier husband's consent: Sec. 1C2, ante. But no estate in her real property passes unless the grant is executed in the manner pre- icribed by sections 1180 and 1191: See sec. 1093. The disabilities of a married woman existing at common law are so far removed that she may do such acts as tlic law allows, biit only in the manner directed by the law. The acknov.dcdgmont of an instrument conveying her realty is made by the code an essential ele- 221 1188-1190 ACQUISITION OF PROrERTY. [Div. II, Part IV, ment of the conveyance, and must be in the manner regulated \>y th(3 code: See the lust part of note to sec. 118G. There is but one mode by wliich a married woman can convey her separate estate, and tiiat is prescribed by statute: Leonls v. Lazzarovirh, 5") Cal. 52. If the certificate of aclcnowledgment is insuffi- cient, the conveyance is absolutely void: Lrouis V. Lazzarovirh, sujira; Smith v. Green, 31 Id. 477; Lander v. IJolton, 2G Id. 393; T<'r>y v. Ilammonil, 47 Id. 32; McLeran v. Bolton, 43 Id. 4G7; Ewald v. Corbett, 32 Id. 493; Maclay v. Love, 23 Id. 374; Camden v. Va'de, 23 Id. 633; Morrison v. IVllson, 13 Id. 498. This is not the law uuder the coile. The certificate of acknowledi;munt is now not an essential part of a married woman's conveyance: Wedtd v. Her- man, 59 Cal. 507, where the matter is fully dis- cussed. An important decision was rendered in Reis v. Lawrence, 11 Pac. C. L. J. 6, turning upon the validity of a conveyance by a woman whose certificate of acknowledgment w.is not in tlie form required in the case of married women. The woman had been married, had sought to obtain, and did obtain, a decree of divorce prior to the execution of the instrument in question, which decree proved to be void. The woman, at the time she executed the instrument, believed hcrscdf to be divorced, so reiiresented generally, and assumed her maiden name. As such fevie fiole she executed the instrument in controversy, and the court held that she was bound thereby. The particular objection to the eertiticate was that it did not recite that she was examined "without the bearing of the husband." But the court replied that the reason for such requirement was Mantiiig in the case before them, as it appeared from the petition in the divorce proceedings that the par- ties had been living apart for several monthii prior to the acknowledgment. Two of the jus- tices. McKee and Thornton, JJ., dissented. Married women's estoppel: See the dis- cussion in the dissenting opinion of Judge McKee in lids v. Lawrence, 11 Pac. C. L. J. 0; Morrison v. WiUon, 13 Cal. 498; Bige- low on Estoppel, 277, 510. " The tendency of modern authority, however, is strongly toward the enforcement of tlie [equitable] estoppel against married women as against jiersons sui jnrU, with little or no limitation on account of their disability. This is plainly so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single: 2 Pomeroy's Eq. Jur., .sec. 814. An acknowledgment is not avoided l)y the fact tliat the promises which induced the wife to make it were not fulfilled: Conn. L. Ins. Co. v. M,-< •ormick, 45 Cal. 580. Tlie statute of 1855, p. 12, concerning the conveyance of the separate estate of a woman whose husband is a non-resident, is explained in Salmon v. ]Vilson, 41 Cal. 595. 1188. Certificale to be indorsed on acknoivledgment. Sec. 1188. An officer taking the acknowledgment of an instrument must indorse thereon, or attach thereto, a certificate substantially in the forms here- inafter presci-ibed. [Amendment, approved March 30, 1874; Amendments 1873-4, 227; took effect July 1, 1874.] Proof of oJH^ial charaoter.— The certifi- cate is prim'i facie evidence of the olficial character of the jierson who gives it: Mott v. Smith, IG Cal. .'■>.33; see Code Civ. Proc, sec. 19G3; Carpmtrrv. Dexter, 8 Wall. 513; Thomp- son \. Morgan, G Minn. 202; Harlinrj v. Cur- til, 45 111. 252; Thnrman v. Cameron, 24 Wend. 87. Where the certificate is taken without the state by a commissioner appointed by tlie governor thereof, tlie seal of the com- missioner is sufHcient iiroof of his authority: Sjiilh V. Van Gilder, 2G Ark. 527; Vance v. Srhnyler, 1 Gilm. IGO; Thompson v. Sihuylerf 2 Id. 271; Irving v. Brownellf 11 Id. 402. See post, sec. 1193. 1189. General form of certificate. Sec. 1189. The certificate of acknowledgment, unless it is otherwise in this article provided, must be substantially in the following form: State of , ) County of . j On this day of , in the year , before me [here insert the name and quality of the officer], personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, and acknowledged to me that he [or they] executed the same. 1190. Form of acknowledgment by corporation. Sec. 1190. The certificate of acknowledgment of an instrument executed by a corporation must be substantially in the following form: State of , ] County of . j ^^• On this day of , in the year of , before me [here insert the name and quality of the officer ], personally appeared , known to mo [or proved 222 Title IV, Chap, rv.] RECORDING TRANSFERS. §§1191-1195 to me on the oath of ] to be the president [or the secretary] of the corpora- tion that executed the within instrument, and acknowledged to me that such corporation executed the same. 1191. Form of certificate of acknowledgment by married women. Sec. 1191. The certificate of acknowledgment by a married woman must be substantially in the following form: State of , ) ^^^ County of . ) On this day of , in the year , before me [here insert the name and quality of the officer], personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, described as a married woman; and upon an examination without the hearing of her husband I made her acquainted with the contents of the instrument, and thereupon she acknowledged to me that she executed the same, and that she does not wish to retract such execution. Married woman's certificate of acknovyl- 1 1 87, generally. For a sufficient certificate nn- edgment. — That the certificate is not jiart of der the twenty-third section of tlie act of April a married woman's deed under the code, see G, 1850, see Muir v. Galloway, Gl Cal. 498. Wedel V. Herman, 59 Cal. 507. See sees. 1186, 1192. Form of certificate of acknowledgment bij attorney in fact. Sec. 1102. The certificate of acknowledgment by an attorney in fact must be substantially in the following form: State of , County of [• ss. On this day of , in the year , before me [here insert the name and quiilifcy of the officer], personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name of thereto as principal, and his own name as attorney in fact. 1193. Officers must affix their signatures. Sec. 11 1)3. Officers taking and certifying acknowledgments or proof of instru- ments for record must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also, their seals of office, if by the laws of the state or country where the acknowledgment or proof is taken , or by authority of which they are acting, they are required to have official seals. See the notes to previous sections of this article; and note to Livingston v. Kettelle, 41 Am. Dec. 170, 173. 1194. Certificate of authority of justices in certain cases. Sec 1194. The certificate of proof or acknowledgment, if made before a jus- tice of the peace, when used in any county other than that in which he resides, must be accompanied by a certificate under the hand and seal of the clerk of the county in which the justice resides, setting forth that such justice, at the time of taking such proof or acknowledgmeiit, was authorized to take the same, and that the clerk is acquainted with his handwriting, and believes that the signature to the original certificate is genuine. 1195. Proof of execution, how made. Sec 1195. Proof of the execution of an instrument, when not acknowledged, may be made either: 1. By the party executing it, or either of them; or, 223 §§ 1196-1200 ACQUISITION OF PROPERTY. [T>iv. ii, tAtitiv, 2. By a subscribing witness; or, 3. By other witnesses, iu cases montioned in section eleven hundred and ninety-eight. 1196. Wifness m-ufit be peraonalhj known to officer. Skc. 119G. If by a subscribing witness, such witness must be personally known to the officer taking the proof to be the person whose name is subscribed to the instrument as a witness, or must be proved to be such by the oath of a credible witness. 1197. Wilncss must prove what. Sec. 1197. The subscribing witness raiist prove that the person whose name is subscribed to the instrument as a party is the person described in it, and that such pei'son executed it, and that the witness subscribed his name thereto as a witness. 11S8. Hand writing may he proved, when. Sec. 1198. The execution of an instrument may be established by proof of the handwriting of the j)arty and of a subscribing witness, if there is one, iu the following cases: 1. "When the parties and all the subscribing witnesses are dead; or, 2. When the parties and all the subscribing Avitnesses are non-residents of the state; or, 3. "When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or, 4. When the subscribing witness conceals himself, or cannot be found by th« officer by the exercise of due diligence iu attempting to serve the subpoena or attachment; or, 5. In case of the continued failure or refusal of the witness to testify, for the space of one hour, after his appearance. 1199. Evidence of handwriting must prove what. Sec. 1199. The evidence taken under the preceding section must satisfac- torily prove to the officer the following facts: 1. The existence of one or more of the conditions mentioned therein; and, 2. That the witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signa- ture, and that it is genuine; and, 3. That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine; and, 4. The place of residence of the witness. [Amendment, approved March 30, 1874; Amendtnenls 1873-4, 227; look effect JuJj 1, 1874.] Proving haudwriting, generally: See Code Civ. Proo., sees. 1315, 1943-1946. 1200. Certificate of proof. Sec. 1200. An officer taking proof of the pxecution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the matters required by law to be done or known by him, or proved before him on the pro- ceeding, together with the names of all the witnesses examined before him, their places of residence respectively, and the substance of their testimony. O3ioer'3 certiiicate, and effect of coin|>li- " No particular form is necessary. If to a ance with the prescribed f.)rnn: See the notes cftrtiac.ite of proof by a subscribing witness of to preceding sections of this article. the e.xecution of a deed the witness adds Ida 224 Title IV, Chap. IV.] RECORDING TRAKSFERS. §§ 1201-1-205 signature, and the officer adds the usual jurat stantial compliance with the statute: W/nl^ to an affitlavit, such additions do not vitiate wy v. Arnold, 10 Cal. 531:" Conimi.-ssioDers* the certitioate, if without them it shows a suh- note. 12C1. Officers authorized /o do certain things. Sec. 1201. Officers authorized to take the proof of instruments ar'e authorized, in such proceedings: 1. To administer oaths or affirmations, as prescribed in section twenty hun- dred and ninety-three, Code of Civil Procedure; 2. To employ and swear interpreters; 3. To i.-suG subpoena, as prescribed in section nineteen hundred and eighty- six, Code of Civil Procedure; 4. To punish for contempt, as prescribed in sections nineteen hundred and ninety-one, nineteen hundred and ninety-three, nineteen hundred and ninety- four, Code of Civil Procedure. The civil damages and forfeiture to the party aggrieved are prescribed in sec- tion nineteen hundred and ninety-two, Code of Civil Procedure. 1202. When instrument improperly certified, party may have action to correct error. Sec. 1202. When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the district court to obtain a judgment correcting the cer-^ tificate. Correcting d"f3CtivQ certificates. —As to snprn. As to tlie power of a court of equity the ollicci's 1- g'lt to amend his certiGcate, see tu perfect a defectively acknowledged coiivcj'- Martiudalo on Conveyancing, sec. 2G4; Liv^nfj- ance by a married woman, see the n itu to Ticr- 8to:iv. KeUellc, 41 Am. Dec. IS4:, in note; Wcclel nan w PooVf 19 Am. Dec. 2liO. Ejuity will V. //erma's . "59 Cal. 507. Parol evidence to sup- not reform the imperfect deed of a inarried. pnr-t or impeach acknowledgment: Smitli v. woman: Lfonin v. Lazznrrvuli, 55 Oil. 52. But W ril, 1 Am. Dec. 81, and note. in Wcdel v. JJermati, 59 LI. 507, tliis case was Married woman's defective certificate explained, and it was there determined that ^ could not he eon-ucted prior to the code: .^V/o- defecti%'e certificate of acknowledgment by a ver v. A. R. Commerc'ial Co., 7 Cal. 200; Bar- married Avoman might be reformed in eijuity; rett V. Ti-wkshurij, 9 Id. 13; Jtidson v. Poriir, that under the code a/'^Wf cowrC'a "eertilicata 53 Id. 482. Nor after the code can a defective of acknowledgment ia not an essential part ot certificaLe of acknowledgment, executed before her conveyance." the code, be corrected: Judson v. Porter, 1203. Action to obtain judgment of proof of an instrument. Sec. 1203. Any person interested under an instrument entitled to be provecl for record ma}' institute an action in the district court against the proper j:)artie3 to obtain a judgment proving such instrument. 1204. Effect of judgment in such action. Sec. 1204. A certified copy of the judgment in a proceeding instituted under either of the two preceding sections, showing the proof of the instrument, and attached thereto, entitles such instrument to record, with like effect as if acknowledged. 1205. Conveyances heretofore made to be governed by then existing laws. Sec. 1205. The legality of the execution, acknowledgment, proof, form, on' record of any conveyance or other instrument made before thi^j code goes into effect, executed, acknowledged, proved, or recorded is not affected by anything* contained in this chapter, but depends for its validity and legality upon thd laws in force when the act was performed. " By its terms tliia section provides that the the act was performed. It is impossible to legality of the execution of an instrument made construe this section l)nt as declaring that no before the code shall not be affected by any- jiart of the cliapter should be held /iropriv thing coiitaine.l in sections 1202 and 1203, ivV/ore to validate an execution invalid when it but must depend upon the laws iu force when, was attempted; and section 1205 (which rcfera Civ. Code— 13 225 IS 1206-1214 ACQtnSITION OF PROPERTY. [Div. II, Part IV, to the whole chapter) cnn have no application 'the legality depends upon the laws then in to sections 1232 an^.l 120iJ, unl^jsa its elloct is to force,' are very broad when applied to tlie ex- proiiiliit any proceedin,' umler those sections eciitioa of an instrument:" McKiiistry, J., ou to nialie good a defective execiitijn of an in- behalf of the court, in t/«t/so« v. /^orier, 53 Cal. Btrument attem;!tcd prior to the code. The 482, expressions 'the legality is not affected,' and 1206. Recording, and as evidence, to he governed by then existing laws. Si:c. 120G. All couvejances of real property made before this code goes into effect, and acknowledged or proved according' to the laws in force at the time of such making and acknowledgment or proof, have the same force as evidence, and may be recorded in the same manner and with the like effect as convey- ances executed and acknowledged in pursuance of this chapter. 1207. Bf^cord as notice — Certified copies as evidence. Sec. 1207. Any instrument affecting real property, which was, previous to the thirtieth day of January, one thousand eight hundred and seventy-three, copied into the proper book of record, kept in the office of any county recorder, shall be deemed to impart, after that date, notice of its contents to subsequent purchasers and incumbi'ancers, notwithstanding any defect, omission, or infor- rfnality in the execution of the instrument, or in the certificate of acknowledg- ment thereof, or the absence of any such certificate; but nothing herein shall llo3 deemed to affect the rights of purchasers or incumbrancers previous to that . date. Duly certified copies of the record of any such instrument may be read >ia evidenee, with like effect as copies of an instrument duly acknowledged and 1 recorded, provided it be first shown that the original instrument was genuine. I [New flection, approved March 30, 1874; Amendnienls 1873-4, 228; took effect .July I, 1874.] C3rtiS3d copies of records need not tran- tificate reciting the afSxing of the seal: Jones tscribe tlie seal to the ackaowledgmeut, the cer- v. Martiii, 16 Cal. 165. AETICLE IV. EFFrCT OF ItECOKDING, OR TUE WANT THEREOF. '"The provisions of the various statutes con- corded, have been placed and may be found in cerni^^; conveyances wliich relate to tlie t-ffect the fourtli part of the Code of Civil Proced- ..as evidence of iustrumen Is acknowledged or re- ure:" Commissioners' note. ;I213. Record, ivhere and lo iaJ:'Om vol ice. Sec. 1213. Every conveyance of r^al property, acknowledged or proved, and • certified and recorded as pr scribe 1 by law, from the time it is fikd with the recorder'for record, is constructive notice of the contents thereof to subse:iuent purchaser and mortgagees. R9Cordingdate.sfrom time of deposit: See er's office by the grantee, and kept from the an'p, sec. 1 170, and note. otlice for some time an 1 is then 7'etnrned, t!ic R:;oordln2 mortgages: See p^xt, sec. 2937, lawmaking a reconlej| tieen recorded in such county]. (In effect 60 days'] after iVIarcli ]n, 1909. Stats. 1909, Chap. 171). » Civ. CI Title IV, Chap. IV.] RECORDING TRANSFERS. 1215-1217 Unrecorded deed, when void. — An un- recortletfn V. J/oore, 32 N. H, 384. Where the land is in the actual possession of one whose holding is inconsistent with the vendor's title, the subseqiaent purchaser is charged with notice of the occupant's title: Smilh v. Yule, 31 Cal. 180; Killnj v. Wi/.^^oii, 33 Id. G91; Partridge v. McKinney, 10 Id. 181; Jlorrison v. Wilson, 13 Id. 494; Thompxon v. Pioche, 44 Id. 51G; IIuiit<'r v. IVatsov, 12 Id. 363; Fair v. Stevenot, 29 Id. 486; Wairoiis v. Blair, 32 Iowa. 63; WatkiiiH v. Edwards, 23 Tex. 443; Ru>isell v. Swcezey, 22 Mich. 233; Tay- lor V. Lowe/isfein, 50 Miss. 278; Tacher v. Fin*- demark, 21 Kan. 263. And this whether the Lind is occupied by the owner or by his tenant: O'Rourke v. O'Connor, ,39 Id. 442, And see Uvf/er V. Mooiiey, G3 Id. 586, where the subject is carefully considered, and possession, together with recorded conveyance, held to give notice. On the fact of record this case is distin'^uished from the still later case of Bath v. Valdez, 6 West Coast Hep. 889. Tlie possession ou'^ht to be exclusive, open, and notorious: See Smith v. Yide, 31 Cal. 486; Page V. Waring, 76 N. Y. 463; and contiuuous: Brown v. Volkenning, 64 Id. 76. See a complete treatment of this branch of the subject in Wade on Notice, sees. 273 etseq. 2. lipci'alt in title papers — A vendee is affected with notice of the recitals contained in the written instruments forming his chain of title: Corlntt v. Clenny, 52 Ala. 480; John- son V. Thweatt, 18 Id. 741 ; Stidham v. Ma' hews, 29 Ark. 6'>0; Bnrrun v. /'o'dhac'sAdm'r, 2 Basil, 39; GrejiH v, EnanK. 1 Dak. Tor. 387: J^ai/ne v. Abi'rrronibie, 10 Hcisk. 101; Baker v. Mdtlier, 25 Mich. 51; Deaxon v. Taylor, 53 Miss. 697; Wood.-i v. Krebbx, 30 Gratt. 708; Widis v. Gny, 48 Tex. 463. Not only is ho bound by what is recited in his title deeds, but also by that to which his attention is directed by these recitals: Wiseman v. Uatchinxon, 20 Ind. 40; Gro>dcey v. Chapman, 26 Id. 33; Deason v. Taylor, 53 Miss. 697; Payne v. Abercromhie, 10 Ileisk. 161. But the recitals ought to be so far correct as necessarily to lead to an acquaintance with the circumstances with which the i)arty is sought to be charged: Dell v. Twilight, 22 N. H. 500; Cambridge Valley Bank v. Delano, 48 N. Y. 326. The fact that a wife joins in a deed with her husband is not notice to a creditor having knowledge of that deed, and who claims under the husband by a sherifTs sale, that the wife holds unrecorded deed for the land: Vassault v. Austin, 36 Cal. 691; see also note to Lodge V. Simoidon, 23 Am. Dec. 47. 3. Lis pendens: See Code Civ. Proc. , sec. 409, and note. 4. Other circumstances. — Great inadequacy of consideration may be sufficient to put the purchaser on inquiry and charge him with notice of what reasonable inquiry would have imformed him: Argenti v. Sail Francisco, 6 Cal. 677; DeWitt v. Perkins, 22 Wis. 473; Iloppin V. Doty, 25 Id. 573. Purclmse'r of a mere equitable title is not a bona fide purchaser, within the meaning of the rule under consid- eration; he takes subject to existing equities: Diipont V. Wertheman, 10 Id. 354. 5. Information given to the purchaser, wliether sufficient to put him on inquiry: See note to Lodge v. Simonton, 23 Am. Dec. 47. Puroha^er without uotloe from one who has notice does not acquire title except under t!ie registry act, and if the third person's re the ])urcha3er's deed is executed the recorded deed takes precedence: J\lahonty v. iliddleton, 41 Cal. 41> see note to Ludlow v. Gill, 1 Am. Dec. 695. CHAPTER V. UNLAWFUL TRANSFERS. 1227. Cerfain infitri(ments void ag(dnf(. it U also used as a place of business by the Go'-ting apart home-stead for decedent's family, which frequently happens, it may not faiiul7-: Co.le Civ. Pmc, sees. l-liJ5 et teq. there I ore cease to boa liomestcad if it wouUl bo Abandoumeut of homestead: Sec. 124.3, necessary or convenient for f::mily use, imlc- infni. pendent of the business. If what is actually Ti!C code commissioners annex to the above used a-s a homestead is of greater value tluia Bection llio followinj^ note: " Both in the con- five thousand dollars, the excess is not liome- Btitutiou and in the statute the word 'home- stead under the law, t'.iough so in fact. _l''ur- Btca 1' ij used iu its ordinary or po^tular sense; tlicr tlian this in the way of gcncial detinition, or i.i o:her words, its legal sense ijalso its pop- it is ditHcult to go, if not impossible. \yh it- ular bcnjC. It tepresenls the dwcLing-liouse, ever lies beyond must Hud its deaionstration iu iu whieU tliofamdy resides, with the usual and the peculiar f.icts of the case. The hoincstead customary app'irtenauces, ineludiug out-bui:d- for u-hich tho law provides is not one iu name in;^3 ,% :,-2 Id. Cr.O; Aurker v. McCoy, 50 Id. 524; Dorn v. Ifotce, 52 Id. 030; sec. l'JG3, post. The use of the prennses for tlie family resi- dence is an im})ortant element to be consid- ered: Lawjldin v. Wright, 63 Id. 113 If the premises are primarily the home of the fam- ily, it will not impair the effect of the home- stead that the premises are also used as a place of business by the family: Estate of De- liine'j, 37 Cal. 176. Bat wliere the premises in question are used primarily and principally as a place of business — e. [/., a hotel — the mere residence of the declarant and his family in the buihling. a residence incidental to the busi- ness, will not authorize prol^ection of the prem- ises as a homestead: Laiir/hlin v. Wrijht, 03 Id. 113. See ArUe;/ v. Vhambrrlain, 10 Id. 181, where the use of a bunding as a hotel did not destroy its character for homestead pur- poses. And a man cannot claim the benefit of a homestead upon premises which lie does not personally occupy, as wliere a declaration had been fiied upon a double house witli two dis- tinct entrances, one half of wdiicli house was occupied by a tenant. In such case the decha- ration was held not to protect the portion not occupied by the owner. "In this case tha claimant did not reside in the structure, which was occupied by his tenants. The facts of this case are widely different from the case of a person residing in a building and renting apor- tion or portions of it to roomers or lodgers:** Tkrnan v. Creditors, OJ Cal. 2S6. Residence and use as a homesteaank of Santa Barb ira v. De la Guerra, 01 Id. lO."). Under the act of 1803. which allowed ho acstead:! to be carved out of such lands, it can only bo done wliere tlie claimant is iu the exclusive posses- sion of th3 tract souglit to be iledicated: RvKset V. Green. 51 Id. 130; ('amHo v. /)H//iitf, 47 Id. 7i); Uijjiiis V. Higjins, 40 Id. 250. A 230 Title V, Chap. L] GENERAL PROVISIONS. §§ 1200, 1240 homestead right was destroyed by conveying an undivided one lialf of the land to a third person: Carro'l v. Ellis, G3 Id. 4-10. In the absence of restriction ujion the nature of the interest of the declarant in the land upon which the character of a homestead is 80ug!it to be imposed, whatever title he has he may protect by a declaration, and may sulise- quently perfect by purchase of the outstanding title. The homestead is gooil as to every one eave the owner of the land: Si^encsr v. Gti'*e- nail, 37 Cal. 9(5. In this case a person having the mere naked possession was permitted to acquire a liomestcad right tiiereto. But see Calderirood v. Terw, 23 Id. 335. By iiling the declaration the declarant acquires no further title than that which he originally pos- sesseil: Brooks v. /Ji/de, 37 Id. 336. It simply protects from execution what interest he may have in the laiul: Id. A homestead right can- not le asserted a^'ainst one who is lawfully en- titled to the possts;;ion: 3/a7in v. Uoilra. A subsequent t\ c*^ laratioft • of hom.stead defeats a prior atiachmont lien:. Same citation; )F»/ao/i v. Madison, 5S Id. 1. . g§ 1241, 124^ ACc3t^ISITI6^f OF rRdPfiRTY. [Div. II, Taut IV^ But a judgment rcridered befote the filing of tlie ilcolaration takes precciileiice (if tlie liome- Btea.l ami becomes a lieu upon the land: Seo *!ec. 1-24I, snbd. 1. Theslieriif may ho enjoined fvonl sel.ing, cjl a deficiency judgment ill foiO- HosurcjToeeedingS, hmds ujion vvliich adcclara- tion hail bc'cii tilcil befdr'G t'le balance due an the A partnership cannot escape its Creditors by converting its elleots into real estate, to l)e selected as a homesteail by one of tin; lirni; the land will be liable to execution, notwith- standing the di'daration of lioni tstead: i>lshop V. Ilubbtirl, '2.") Cal. 514. Andwliere picini (!3 have never been actually iin^iresscd with the 2i;5. Crops grown on hoinostead. — The pro- ducts of llie homestead are not in terms p:o- tectod from forced sale by the declaraiion of honiestea'l. And reading t'le home^tea 1 biw in conjunction wit!i t jo statute of exemptions, Code Civ. L^roc (>90, tiie suprcnie court con- cluded that grain harvested fioin l.jids cim- stitntiiig the bomestead Avas siibject to execu- tion for the husl)and's debts: I/oiyaii v. Am/rk, G2 Cai. 401. But tiiat wheat gnnving on a homestead is part thereof, and does nut jiass to an assi ,'nee in insolvency, see Dascey v. Harris^ 3 West Coast Rep. '202. J(ulgm';nt on the foreclosure had been reported character of a homestead, they are not exempt rfiid recdrdcd: Culver v. Iioij'-ts, '28 Cal. MO. Cariey V. JSlcFurUuid, 7 Id. 34G; Recalk v, Kiaemer, S Id. 74; JJuiui V. Tozer, 10 Id. 1G7. And as to the ed'ect of a conveyance by the husband alone, under the act of 1S51, see JlcQuade v. II hale//, 3J id. 52(i. There is a joint estate in the homestead vested in the husl)and and wife w hich can only be divested by the concurrent acts of the hus- band and wife: Barber v. Bubt^l, 30 C'al. 11. This act must be personal, under the law as passeil in 1SG2; a conveyance of tlie homestead could not, under that act, be executed by attor- ney: Gaijliardo v. Dumont, 54 Id. 49G; and see Lautjhlni V. Wrhjld, 63 Id. 113, where the home- steail was iuvahd. A contract by a married man for the sale of land requires, if the land is a homestead, a ileed to which the wife is a party: Clarkiii V. Leicis, 20 Id. 634. That equity will cancel a deed induced by fraud upon the liusband and wife, see Still v. SaimderH, 8 Cal. 28 1. The homestead right of exemption from forced sale cannot be transferred even by the joint act of husband and wife. It is a personal exemp- tion, which may be released or abandoned, but not sold: Boicman v. Norton, 16 Cal. 213. Mortgages and inciimbrances. — There are two classes of mortgages which the rode makes binding on the homestead: mortgage of the premises before their selection as a homestead, and a subsequent mortgage in which both hus- band and wife join: See sec. 1241, subd. 3, 4. Mortgages before the selection of tlie prem- ises as a homestead have been sustained in Rix V. Mcllenry, 7 Cal. 89; La-s.ten v. Vcuice, 8 Id. 271, where the deed of purchase and mortgage to the vendor were held to be simultaneous; Montijormry v. Tutt, 11 Id. 19i; Graham v. Oviall, 58 Id. 42S; Shinn v. Macphcrsoii. Id. 590. Mortgages alter the homestead rights liave attacheil have been held invalid as being made by the husband alone, in Domey v. Mposed homestead: Groyan v. Thrift, 58 Cal. 378. It has been said that the fraudulent act of the husband cannot prejudice the rights of the wife in the homestead: Jlarber v. Babel, 30 Cal. 11; but this principle will not be applied to the ptotection of the homestead I'iglit whifh the fraudulent act of the husband has rendered more valuable by clearing off a prior mortgage, where the revival of the mortgage will not make worse the position of tlie wile, when the homestead right was acquired, and will do jus- tice to the parties whose money has been wrong- fully used in paying off the mortgage: Skinn V. Macpherson, 58 Id. 598. The question of homestead right may be raised by the wife, in foreclosure proceedings to which she was not made a party, by liliug a pe- tition of intervention: Marbiiry v. liuiz, 58 Cal. 11. The question cannot be raised on a motion to set aside the sale, either iiy husband or by the wife: Gnok v. Klink, 8 Id. 347. Whether the mortgage of a homestead can be executed by attorney, see LaujhLn v. Wriyht, 63 CaL 313. 1243. JIow abandoned. Sec. 12-13. A homestead can be abandoned only by a declaration of aban- donment, or a grant thereof, executed and acknowledged: 1. C}' the husband and wife, if the claimant is married; 2. By the claimant, if unmarried. Abandonment of homestead. — A convey- Voluntary removal from the premises does absolute is an abandonment of not destroy the homcslead: IJo'den v. Pin- the honusti-ad: .lohnnton v. Bush, 49 Cal. 198. The con\eyaiice alisolute in form, but intended as a mortgage merely, is an abandonmi-nt as to innocent iiarclwsers: Mnbnry v. Rk.z, 58 Id. 11. The Jselliig an undivided portion works an abandoiimctit of the homestead: Kellers- beruer v. Kopp, Id. 503. }tey, 6 Cal. 234; Tay'or v. //'iryoux, 4 Id. 268; not even after a separate sale by the husband: Taylor v. llarjoii-<, su/,ra. A homeste;.d is not abandoned by the removal of the husband with his family and living else where, when there is an intention to return later, and make it their home: See the (acts ia 233 53 12U-12G0 ACQUISITION OF PROPERTY. [Div. II, Pabt IV, this case, Porter v. Chapman, 3 West Coast v. Wallace, 25 Id. 108; and compare Law/hlin Kep. 204. The fact that both husband and v. Wr/ij/d, G.'J Id. 113. The wife's adultery wite were anxious to sell their homestead, and and desertion do not impair the homestead the husbaiid made repeated eflbrts tor that right: Lies v. l)e Dinltlar, 12 Id. 327. purpose, is not evidence that he intended to The acceptance by the widow of letters abandon the homestead as such: Dunn v. testamentary, and the fact tliat she was by the Tozer, 10 Cal. 107. The husband's residence will made a residuary legatee, do not show that is tlie wife's residence; so his removing from she waived her right to have a homestead set the pi-eniises, thereby com[)eIling her to re- apart by the probate court: Salz'jtres. Sec. 1251. They must view the premises and appraise the value thereof, and if the appraised value exceeds the homestead exemption, they must determine "whether the land claimed can be divided without material injur3\ 1252. Report of appraisers. Sec 1252. Within fifteen days after their appointment they must mate to the judge a report in writing, which report must show the appraised value and their determination upon the matter of a division of the land claimed. 1253. Division rf property, when. Sec 1253. If, from the report, it appears to the judge that the land claimed can be divided without material injury, he must, by an order, direct the ap- praisers to set off to the claimant so njuch of the land, including the residence, as will amount in value to the homestead exemption, and the execution may be enforced against the remainder of the laud. 1254. Sale, when. Sec 1254. If, from the report, it appears to the judge that the land claimed exceeds in value the amount of the homestead exemption, and that it cacnot be divided, he must make an order directing its sale under the execution. 1255. nids. Sec 1255. At such sale no bid must be received, unless it exceeds the amount of the homestead exemption. 1256. Application of proceeds of sale. Sec 125G. If the sale is made, the proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution. 1257. Money resulting from execution sale protected. Sec 1257. The money paid to the claimant is entitled, for the period of six months thereafter, to the same protection against legal process and the vol- untary disposition of the husband, which the law gives to the homestead. \ Amend me)it, approved IJarch 30, 187-4; Amendments 1873—4, 230; took effect July 1, 1874.] 1258. Compensation of appraisers. Sec 1258. The court must fix the compensation of the appraisers, not to exceed five dollars per day each for the time actually engaged. 1259. Costs. Sec 1250. The execution creditor must pay the costs of these proceedings in the first instance; but in the cases provided for in sections twelve hundred and fifty-three and twelve hundred and fifty-four the amount so paid must be added as costs on execution, and collected accordingly. 1260. Who may select homestead, value of Sec 12G0. Homesteads may be selected and claimed: 1. Of not exceeding five thousand dollars in value by any head of a family; 2. Of not exceeding one thousand dollars in value by any other person. Estimate of Vcdue: See sec. 120.1, infra. Place of recording: See sec. 12G4, infra. 1261. Bead of a family defined. Sec. 12G1. The phrase " head of a family," aa used in this title, includes within its meaning: 235 § 12S1 ACQUISITION OF PROPERTY. [Div. II, Part IV, 1. The liuabaud, wlien the claimtint is a married person; 2. Every person who has residing on the premises with him or her and under his or her care and maintenance, either: , 1. His or her minor child, or the minor chihl of his or her deceased wife or husband; 2. A minor brother or sister, or the minor child of a deceased brother or sister; 3. A father, mother, grandfather, or grandmother; 4. Tha father, mother, grandfather, or grandmother of a deceased husband or wife ; 5. An unmarried sister, or any other of the relatives mentioned in this sec- tion who have attained the age of majority, and are unable to take care of or support themselves. [Amendment, approved March 30, 1874; Amendments 1873-4, --IJO; took effect Jidy 1, 1874.] Hs'd of famUy — An individual, whethef homestead under the general homestead act: married or not, may lie the liend of a faniilj': y/.V/ //'».-• v. i/i'j(jins, 4(5 Id. •2.')0. Heixdlc V. Kraeiiwr, 8 Gal. 63; an unmarried lJnplicati()n of tlie iiusband or wife, not in.sane, to the probate court of the county in wliicii said lioinestead is situated, and upon appear in court and see that such application is made in good faith, and that tlie pro- ceedings thereon are fairly conducted. Petition, Skc. 3. Tliirty days before the hearing of any application under the provisions of this act, tlie applicant sliall present and file in tlie court in whicli such application is to be heard a petition for tiie order mentioned in tlie first section of this :ict, subsciii)ed and sworn to by the applicant, setting forth the name and age of thj insane hnsijaud or wife; the number, age, and sex of the children of sucii insane husband or wife; a description of the premises consti- tuting the lioiiiestead; tiie value of the same; tlie county in wliich it is sitiiate(i"(/e Stdutoii, 47 Cal. GO. A deputy clerk may take v. Whali'y, 31 Cal. 520; Noble v. Ilook, 24 Id. the acknowledgment: Emmal v. Webb, 38 Id. 638; Eiley v. FM, 23 Id. 70. 1263. Declaration, ivhat to contain. Sec. 12G3. The declaration of homestead must contain: 1. A statement, showing that the person making it is the head of a family; 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. [Amendment, approved March 30, 1874; Amendments 1873-4, 231; took effect July 1, 1874.] Head of a famay: See sec. 12C1, a»/e. dollars: Ham v. Sitnta Horn Bank, 62 Id. 125, Res:'denGe necessary: See sec. 1237, and the opinion in bank; Tieman v. His Creditors, note; and the declaration of homestead must Id. 288. " The cash value of tiie said above- state that the declarant is residing on the described premises is three thousand dollars," homestead at the time: Babcock v. Oibb", 52 is a sufficient compliance with subdivision 4 Ca!. G29; and so Dorn v. Howe, Id. 630. of this section: Head v. lUihm, 3 West Coast i:st:mate of the actual cash value.— This Hep. 150. eubdi\ision must be complied with: Ashley v. Description. — It is not necessary that the OlniKti-ait, 54 Cal. 616; Ames v. Eldn-d, 55 Id. descri|)tion of land in a homestead deciaratioa 130, wliere the estimate in the following should be more particular than in a conveyance: language was pronounced insufficient: "That Ornhaum v. Crcdilori, 61 Cal. 455. Tnat it theactual cash valueis five thousand dollars and may include more than one lot: 8eel>l. ; Mc- over." It does not vitiate the declaration that Donald v. Badprovrd January 2'd, 1874; Aiwixdmentxl^TiW-A:, 275; tonic effect from pm^i^ofjc.] Bequests to corporatioiis. — This section, corporation, one org-inized solely for educational purposes, and can take hy will: EsUUe of' Bui- mn; aaCd. 1:11. Charitabl3 uses valid: See sec. 817, aii/'>, and note. Corporations existing bsfors tli3 coda: See sec. 28S, and note, U'lon tiiu rig it of cor- porations, organizod prior to the codi;. to take by will according to the statute under which they were incorporated. read in counectidJi with section l.'11.3, wliich imposes certain liadoations upon he(|uest3 to corporations, recognizes tlie right of a testator to make a l>e(|uest or devise to coi-poratious: Estate of R ■hhi'^on, 6.'} Cal. G20. A inniuci- pal corporation may take, a bequest of money in trust, to l)e invented and paid out from time to time to the destitute women and children witiiin the limits of such corporation: liobinaoit^tf Eii'ate, supra. A scliool district is a 1276. Wril/en will, hoio to be executed. Sec. 127G. Every will, other than a nuncupative will, must be in writing; and every will, other than an olographic will and a nuncupative will, must be executed and attested as follows: 1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe 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 bj' him or by his authority; 3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and, 4. There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at t'ae testator's request, and in his presence. Execution of foreign ■will: See sec. 13G7, nessea may sign the testator's name at his di- poxt. Olograoliio -will: See sec. 1277, infra. C^njonlor mutual wUl: .See sec. 1279, infra. Nunjupitivc will; See sees. I2SS-12'J1. Execution of -will. — 1. SIjuvkj. — Tlie tes- tator mast either sign his name at t!ie end of the will: Watln v. I^thic Adin'r,A Wend. 108; Lfiwi'i V. Len^is. l:{ liarb. 17: McDoiiou-jh v. Lanijldin, 20 Id. 238; Strieker v. Grores, 5 ^Vhart. 3S0; or have it signed by some (Uie in his presence and at his direction: liiley v. Rilpy, .3(5 Ala. 49(1; Abraham v. WilHiit, 17 Ark. 2;)2; Vai.fs v. CliimfroHt, 21 Id. 330; Vaii- drufy. li'nit'hart. 23 Ta. St. 2 ;2. The testa- toi's mark n,ay he sniScient signing: E^la/e of Toojii'x. it I Cal. i509. Nor is it necessir}' that the person who v^Tote the testator's name should sign his name "asajiart of the signa- ture:" III. lie must affix his name as a wit- ness to tlie will: II. But it seems from this same case that one of tlie two subscribing wit- rcjctioa. 2. Ai-knowlpd'jin'i. — It is not necessary that the vvill shoull be signed in t!ie jiresencc of the witnesses; a distinct acknowledgment of his signature in their jn-escnce is suliieieMt: liur- wdl V. Corbin, 10 Am. Dec. 404; /I'aA v. /*«;•• vcL. 2 Harr. (Del.) 441; Dewey w JJeirei/, 1 Met. 310; I/o'/aii v. Grosvenor, 10 Iil. 54; i lie'hh v. Fte^nimj, 30 Ga. 808; Gaijlor'a vl^yjra/, 43Conn. 82; U/a v. Edwards, IGOray, 91. That one who signs the testator's name may \je a witness to the will, see EatiUe of Toomps, 54 Cal. 509. Imperfectly esscuted will, ho-sv far valid: See note to Guthrie v. Owen, 36 Am. Dec. 316. 1277. Definition of an olographic will. Sec. 1277. An olographic will is one that is entirely written, datecl» an^' signed by the hand of the testator himself. It is subject to no other foraa, aaid- may be made in or out of this state, and need not bo witnessed. not, and indeed it is confidentially claimed in those countries where olographic wills are re- cognized does not, give rise to as many attempts at fraudulent will making and disposiiion of property as where it d.ies not exist, simply be- cause the testator's intentions are unknown:'* An olographio -will must be entirely in the testator's liaiidwriting. If part is a printed form, it is invalid: Estate ofI'avd,6\ Cal. 408. Even the figures " 1880" in print after "April 1 " in tlie dependent's handwriting will invali- date t!ie document as an olographic M'ill: Estate of BHiiiifjs, 64 Id. 427. It must be dated: Estate ef Martin, .^S I.l. 530; see Clarke v. Ransom, 50 Id. 4')j. case of an olographic will. " The tend- ency of the courts to recognize the desire of decedents, however informally expressed, as bIiowu in note to sec. 1317, post, is one reason for the adoption of this section; and while it obviates many difSculties and annoyances, may Ciimmissioners' note. He v7lio subscribes tlie testator's name need not write his name r.s a part of the testa- tor's signature: Estate of Toome-% 54 Cid. 53. One of the attesting M'itnesses may subscribe the testator's name: Id. Application of section: Estate of Toomes, 54 Cal. 509, 518. 1273. Witnesa to add residence. Sec. 1278. A witness to a written 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 uot affect the validity of the will. 1273. Mutual will. Sec. 1279. A conjoint or mutual will is valid, but it may be revoked by any of the testators, in like manner with any other will. 1230. Competency of subscribing witnenH. Sec. 1280. If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent iucompetency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise satisfactorily' proved. Competency of subscribing witness? "Stats. 1S50, 177, sec. 4. The general rule is, that the witnesses must l>e competent and credible at the time they witness tlie exeuutiun of the will, for it may be said tliat they do in fact, if not in form, testify at the time of sub- Bcril)ing; and this is so, because the witness becomes such for the express purpose, tiiere- after, to testify to the competency of the tes- tator to execute a will. Anction 1286 was repealed by act approved March 30, 1874; Amendments 1873-4, 232; took •effect July 1, 1874. 1287. Republication by codicil. Sec. 1287. The execution of a codicil referring to a previous will has the •effect to republish the will, as modified by the codicil. Codicil operating as a republication of a will: See Payne v. Payne, 18 Cal. 291. '1283. Nuncupative will, how to be executed. Sec. 1288. A nuncupative will is not required to be in writing, nor to be ■declared or attested with any formalities. Nuncupative wills. — Statutes regarding Dochim v. Robinson, 26 N. H. ?72; Babintau this species of testament are generally strictly v. Le Blanc, 14 La. Ann. 729; Snmpnon T. construed, and require careful compliance with Browninq, 22 Ga. 293; Lucas v. Goff, 33 Misa. their terms: Monjan v. Stevem, 78 111. 287; 629; Biddle v. Biddle, 36 Md. 630. ■ Yarnairx Will, 4 Rawle, 40; Taijlor^s Appeal, See the note to Sykes v. Syke», 20 Am. Dec. 47 Pa. St. 31; /Hddle v. Biddle, 36 Md. 030; 44, for an outline of the history of these wills, JJitchell V. Vickers, 20 Tex. 377; Lucas v. Goff, and a review of the authorities aa to their re- 33 Miss. 629. quirementa. A nuncupative will cannot be established Probating nuncupative wills: See sees. without proof that the decedent called to wit- 1290, 1291, ivfra. jiess at least one person that such was hia will: Nuncupative will under the Mexican law: X3ar)ier v. Lnnnford, 12 Suied. & M. 558; Anvelt See Panaud v. Jones, 1 Cal. 488. V. Ar7ieU, 27 111, 247; Winn v. Bob, 3 Leigh, 151; 242 Title IV, Chap. I.] EXECUTION AND REVOCATION OF WILLS. §§ 1289-1293 1289. Rpquisites of valid nuncupative vjill. Sec. 1 289. To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed: 1. The estate bequeathed must not exceed in 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 contem- plation, 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. [Amendment, approved March 30, 1874; Amendments 1873-4, 233; took effect July 1, 1874.] 11290. Pro^f of nuncupative wills. Slc. 1200. No proof must be received of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken. See Code Civ. Proc, sees. 1344 et seq. 12C1. Probate of nuncupative wills. Sec. 1291. No probate of any nuncupative will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first 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. "Stats. 1850, 178, sec. 9. This is required the will, and must he strictly complied with, to allow time to produce a written will and for See also Code Civ. Proc. Cal., sec. 1345:" Com- the discovery of other facts which help to missioners' note. Btrengtheu or defeat the application to prove 1292. Wrilfen will, how revoked. Sec. 1292. Except in the cases in this chapter mentioned, no \7ritten will, nor any part thereof, can be revoked or altered otherwise than : 1. Ey a written will, or other writing of the testator, declaring such revoca- tion or alteration, and executed with the same formalities with which a, will should be executed by such testator; or, 2. By being burned, torn, canceled, obliterated, or destroyed, with the intent and for the pui-pose of revoking the same, by the testator himself, or by some person in his presence and by his direction. Revocation of will — 1. By suhftfquent writ' of revocation of wills, and a discussion of the ing. — Sucli writing must be executed with the principles involved, see 1 Jarm. on Wills, 5th same furmalities as a will, otherwise the writ- ed., sees. 129 et seq., and Bigelow's notes in:,', though containing a clause revoking prior thereto; see further a note in 12 Am. Dec. 377. wills, is not a revocation thereof: Uees". v. Proof of destruction: See sec. 1293, infra. Court of Probate, 9 1{. I. 434. Subsequent Revoking by tearing signature from the paper: will, when and when not a revocation: See Estate of Luifj, 1 West Coast Rep. 773. sec. l\106, pout. Code applies to vrhat wills: See sec. 1374, 2. L'oiirdivg or destroyiny. — For a review of po9t, the authorities upon this branch of the subject 1293. Evidence of revocation. Sec. 1293. "When a will is canceled or destroyed by any other person than the testator, the direction of the testator, and the fact of such injury or destruc- tion, must be proved by two witnesses. Stats. 1S.'0, 178, sec. 10. " This is required what in formality with the execution of » to make the act of revocation correspond some- will:" Commissioners' note. 243 8§ 1294-1500 ACQUISITION OF PROPERTY. [Dnr. II, Pabt IV, 1294. EevoMng by obliteration on face of will. Section 1294 was repealed by act approved March 30, 1874; Amendments 1873-4, 233; took effect July 1, 1874. 1295. Rei'ocalion of duplicate. Sec. 1295. The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. Presumptions as to revocation varying with the situation of the duplicate: See 1 Jarm. on Wills, 137. 1286. Revocation by subsequent will. Sec. 129G. A prior will is not revoked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. 1297. Antecedent not revived by revocation of subsequent will. Sec. 1297. If, after making a will, tlie 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 will, or unless, after such destruction, cancellation, or revocation, the first will is duly repub- lished. Reviving •will by destroying later incon- revival of an earlier will, the law was other- sistent wilL — Prior to the statutes iu this wise: See 1 lledf. on Wills, sees. .308, .SI 7. country ami in England declarini,' the subse- Republication by codicil: /'ayue v. Pay7ie, quent revocation of a second will to be no 18 Cal. 291. 1298. Revocation by marriage and birth of issue. Sec 1298. If, after having made a will, the testator marries, and has issue of such marriage, born either in his life-dme 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 pro- vision; and no other evidence to rebut the j)resumptiou of such revocation can be received. Revocation by marriage. — Section relied " And this is also the case when provision is on in SanrJern v. Simcirh, I West Coast Itcp. maiU; by another instrument. Lord Mansfield, 8G8. See the general principlo consi lered iu C. J., in Dradi/ v. Cubett. Doug. 31-H9. So, the note to fi'rnre.s' V. .S7i' Wow, 15 Am. Dec. G.yj; also, it was licld by Lord EUenburough in 1 Jarm. on Wills, 5th Am. ed., sees. 1'22 et Kniedel v. Scrn/loii, 2 East, 530, au^l by Lord seq. Tlie text royanling provision by tliu will Kenyon, in Dof v. Lancashire, 5 T. 11. 58:" for subsequent issue ij snstaineil )iy Kcnedel v. Commis-sioners' note. Scraftou, 2 East, 5.30; 1 lledf. on Wills, 204. 1239. Effect of marriage if a man on his will. Sec. 1299. If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is pi'oviJed for in the will, or in such way men- tioned therein as to show an intention not to make sucli provision; and no other evidence to rebut the presumption of revocation must be received. See note to preceding .section. 1303. Efjl^ect of a marriage of a woman on her will. Sec. 1300. A will executed by an unmarried woman is revoked by her sub- sequent marriage, and is not revived by the death of her husband. Marriage of feme sola revolcea har vrill: 77 N. Y. 330; Franwn'a Will, 2G Pa. St 262; Vail V. Lindsay, G? lud. 528; Broiva v. Clark, 1 lledf. on Wills, 203 244 Title VI, Chap. I.] EXECUTION AND REVOCATION OF WILLS. §§ 1301-1307 1301. Conlracl of mle vol a revocation. Sec. 1301. An agreement made by a testator for the sale or transfer of prop- erty disposed of by a will previously made does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator's a""reement, for a specific performance or otherwise against the devisees or lega- tees, as might be had against the testator's successors, if the same had passed by succession. "Stats. ISoO, 178, sec. 14. The statute of its provisions, ■which are the same as the text 1 Vict., c. 2G, sec. 2.S, supports the text of this here. Tliis, being in accord with the intent of BcctioD. Most of the American states liave the testator, is a reasonal)le ami just provision:" adopted similar statutes, or the substance of Code commissiouer's note. 1302. Jllor/gage not a revocation of will. Slc. 1CC2. A charge or incumbrance upon any estate, for the purpose of securing the payment of money or the performance of any covenant or agree- ment, 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. Stats. IS.'iO, 178, spc. 15. its equities to the preceding section: " Commis- Morignge of estate not a revocation. — sioners' note. "This is a clearly just provision, and similar in 13C3. Conveyance, xchen not a revocation. Sec. l;]03. A conveyance, 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 devolve by succession. Conveyance as a revocation: Sec next be sold, the devise is revoked: 3fcNanghlon v. Bectiuu. A conveyance will not work a revoca- IIcNaurjhtou, 34 N. Y. 201. The will operatea tiou ill loto unless all the estate dcviseil is con- upon what is not conveyed: Uruck v. Tucker, veyed: i; el's v. li'e /<, ."jj Miss. GP-S; Brown v. 32 Cal. 42o; see also sec. \?>\\, pout. Thonidih', l5V\ck.SSS; M<'Tai/'j0, 178, sees. 10, 17. that tliey are present to the mind of the testa- A child unprovided for by the will, if tor, these sections alTord them no protection if born ill the liic-tinie <>f tlie testator, is entitled no provi-siun is made for them: See J'ln/ni' v. to take such sliare of the testator's estate, by Pa>/ne, 18 Cal. 291, where such a constructioa dcsc^ent, as it would have been calitled to .had was placed upon the statute from which these he died intestate: Penrson v. Pearson, 40 Cal. sections were drawn. GOD. That a posthumous child unprovided for It is not evidence of an intentional omission takes according to the statute of descents, see by the testator of his children wliere he devises also Bachnnaiis Estate, 8 Id. 507. his estate to his grandson: Bufih v. Lindsry, 44 The omission to proviile for a child r.s speci- Cal. 121. In BuvkJcy v. Gerard, 12.3 Mass. 8, ficd in section 1,307 has the same effect as evidence of the intelligence of the ni'ithcr, her though such child were born after the c\-ecn- affection for her children, and her confidenee in ti(m of the wi!l. It takes by succession: Estate her husband, to whom she had devised all iier of ]Vardcll, ru Cal. 484. estate, was admitted to prove that the omission Tlie word "child " as used in these sections, to provide for her cliildren by lier will was in- ].3GGaiid 1307. includesan illegitimateas wellas tentional. But in Estate of Gerraiul, ^o Cal. a legitimate child. An illegilimate child can, .330. it was said that parol evidence was not by virtue of .section 1307, claim a sliare of its admissible to show thrit the omission of the mother's estate if omitted from her will: E.4ate cliildren was intentional; on the contrary, it of Wardell, supra. was determined that to render an exclusion of The object of these sections is to protect t!ie the children effi'ctual, the evidence that tlio chddren against omission or oversight fre- testator intended to do so must be furnished by qucntly arising from sickness, old age, or other the will itself. iuHrmity, or the peculiar circumstunecs under See this subject considered in note to Wilson which the will was executed ; and whenever the v. Fosket, 39 Am. Dec. 740. mentioning of the children in the will shows 1308. Share of after-born child, out er capita, see 2 J;.rm. on Wills, 104, and Big- Daathof iB^atae. — Legacy fails, when: See elow's note, 3th Am. ed.; also 2 Wiiliaina on sees. l.]43, 1344. 24a Title VI, Chap. I.] EXECUTION AND REVOCATION OF WILLS. §§ 1311-1315 1311. Devises of land, how construed. Sec. 1311. Every devise of land in any will convcya all the estate of the devisor therein which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate. Devising all one's estate: Bernal v. Wade, a bequest is made ia the will, will piiss such 40 Cal. G'J.S; and see next section, and note. If est.ite if tlie owner accepts the legacy: iVoe v. part of land devised has l)een conveyed or con- S/>lirah, 54 Cal. 207. Election on thj part of tractod to be conveyed, the residue passes by the wife, whose share in the community prop- tho will: Uriirk v. Tucker, 32 Cal. 425; see erty is devised, is referred to in the note to sec- ante. sec. 1303. tion 1402, post. Devising the estate of another, to whom 1312. Will passes after-acquired estates. Sec. 1312. 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 the contrary manifestly appears b}' the will to have been the intention of the testator. Every will made in express terms devising, 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 devise at the time of his decease. [Amend- ment, approved March 30, 1874; Amendments 1873-4, 233; took effect July 1, 1874.] Will passes what realty. — Unless aeon- Cresson's Appeal, 76 Id. 19; sec. 1311, supra; trary intention is manifest from tl)e will itself, see pott, sec. 1317. all interests in land held by the testator at his Where a testator, after the making his will, death pass by the will, whether acquired be- sells part of tract of land specilically devised, fore or after its execution: Watton v. Wa'ton, and subsequently repurchases it, the portion so 7 J. J- Marsh. r)S; Johns v. flodr/es, 33 Md. sold and bou^^ht back passes under tiie y gift, becpaest, ami devise, and to hold ancl dispose of the same, and tha income and increase tliereof, to ami for such lawful uses and purposes as have been or may hereafter be prescribed iu the terms of such gift, bequest, or devise. Iu the event of any such . 247 §§ 1317-1:319 ACQtriSlTlON OF PROPERTY. [Div. II, Vat.t IV, gift, bequest, or devise having been or being hereafter made, unaccompaniod l)y any provision prescribinij or limiting tlie uses or purposes to vvhicli th'i property recji^eil tlieieumler, or the income ot- increase tliereof. sliall be put, hui-!i u.«es and purposes niay be prescribed and regulated by the common council, board of supervisors, board of trustees, houses of le;:jisiatinn, oi otiier legislative body of the proper county, city and county, city, or town. Such legislative boilies may make such regulations concerning the mode and manner of carrying into eh'cco the purposes as aforesaid, and devoting the property so received, and the income and increase thereof, to the uses aforesaid, iu their respective counties, cities and counties, cities, and towns, as may be necessary. Charitable uses permitted by the codes: bequests to corporations, with the limitations Sc'^ sec. 847, ante. there expressed: !See Jiobiiuoji's EnUUe, U3 Cal. The above section recognizes the validity of 020, CHAPTER II. INTERPRETATION OF WILLS, AND EFFECT OF VARIOUS PROVISIONS. 1317. Testator's intention to be carried out. Sec. 1317. A will is to be construed according to the intention of the tes- tator. "Where his intention cannot have effect to its full extent, it must have effect as far as possible. Construotion of will made before the Ilit-hroch, 35 Pa. St. 399. And it makes no cods went into effect not aflected by the code: difference whether tlie general or particular Bee. I.'m'"). ]ioxt. intent is Hrst stated: Cook v. J/nlme.s, 1 1 Mass. Construotion of foreign will: Sec. 1376, 5-28; Chase v. Lorlcpman, 11 Gill & J. IS5; post. Laud V. Oiley, 4 Hand. "213; Dea v, McMurtrie, Intention of testator is to be ascertuned 15 N. J. L. 276. ani:i v. Williams, 17 Ohio St. .'{Oj; Snn5. 24!) i§§ lS27-in34 ACQUISITION OF PROPERTY. [Div. II, Part IV, 1327. Effect of technical words. Sec. 1327. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention. Technical "words are to be taken in their France's Eftaie, 75 Id. 220. Where the in- tcciinical sense unless the context clearly iudi- tention is plain, it will control the legal opera- <5atc3 the contrary: Brown v. Lyon, G N. Y. tiou of teclmical words: lioberLwn v. Johnjion, 418; Cai/ijjijrii v. Uaiuilon, 18 Id. 417; M>or?. 24 Ga. 102; Doiov. Dow, .30 Me. 216, per llow- V. Lyoii'^, 2.} Wend. 119; Sherwood v. Sluer- ard, J.; Fetrow's Estate, 53 Pa. St. 427; llower ifood, 3 liradf. 230; Corrifjan v. Kiernaii, I V. iiheUon, 2 Met. 194, 198, 199. I.l. 2GS; JJoebler's Appeal, G4 Pa. St. 15; 1323. Tt clinical words not necessary. Sec 1328. Technical words are not necessary to give effect to any species of ■disposition by a will. Technical words not necessary to give decisions concerning the expressions in wills •effect to any species of disposition: See 2 Will- that will pass realty, see the note to Tolar v. iams on Executors, 1078. For a review of the Tolar, 14 Am. Dec. 576. 1329. Certain words not necessary to pass a fee. Sec. 1329. The term " heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. Words of succession not necessary to transfer a fee: See sec. 1072, avlt, 1330. Power to devise, how executed by terms of will. Sec. 1330. Real or personal property embraced in a power to devise passes by a will purporting to devise all the real or personal property of the testator. 1331. Devise or bequest of all real or all personal property, or both. Sec. 1331. 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. "Words iu will passing realty: See Tolar and see sees. 1305, 1311, 1312, ante. A devisa T. Tolnr, 1 4 Am. Dec. 570, in note. of all the testator's property, real and personal. Devise of realty. — The will operates upon includes the homestead: Etchebornev. Aazerais, the realty owned by the testator at his death. 45 Cal. 121. If he has conveyed part of a tract devised, tlie General and speciiic legacies: See pasty residue passes: Bruck v. Tucker, 32 Cal. 425; sec. 1357. 1332. Devise of residue, what passes. Sec 1332. A devise of the residue of the testator's real property ]:asses all the real j^roperty which he was entitled to devise at the time of his death, not otherwise effectually devised by his will. [Amendmenty approved 3Iarch 30, 1874; Amendments 1873-4, 234; took effect July 1, 1874.] 1383. Same. Sec. 1333. A bequest of the residue of the testator's personal property passes all the personal property which he was entitled to bequeath at the time of his death, not otherwise effectually bequeathed by his will. [Amendment, approved March 30, 1874; Amendments 1873-4, 234; look effect July 1, 1874. J 1384. " Heirs," " relatives," "issue," " descendants," etc. Sec. 1334. A testamentary disposition to "heirs," "relations," "nearest relations," " representatives," " legal representatives," or " personal repi^seut- atives," or " family," " issue," "descendants," " nearest," or " next of kiu " of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, ve3ts 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. 250 Title YI, Chap. II.] INTERPRETATION OF WILLS. §§ 1335-1340 1335. Words of donation and llmiation. Sec. 1335. The terms inentioneLl iu the last section are used as words of donation, and not of limitation, when the jiroperty is given to the ijerson so designated directly, and not as a qualification of an estate given to the ancestor of such person. Rule in Gliellsy's Case not adopted in in SheUpy''s Cafte, wlien applied to wills, se« this slate: .Sec sec. 779, ante. In Aorris v. Ls'ate of Utz, 43 Cal. 201. Heiifthi/, 27 Cal. o9, tlic rules of construction Des.;riptio.i of legatee. — For an extended of wills and the docirine of Shellfy's < 'as<> were review of American and Kn^lisli ca^es upon carefully cousiilered. There a devise of the the meaning of the variouj terms " heirs," testator's re;vlty in three equal jiarts to three " issue," "m-xt of kin," and others ennraer- speciiied devisci s, "each and all of them to ated in section 1334, sec 2 WiKiamj on Ex- have au I to hold their life-time, and then to editors, pp. 1107 et se<].; aec also the in- go to their heirs and assigns. But never to structive argument in Ilillkjtu-ie v. (Jhe.-^ter, 3 sell," was h.cll to vest a fee-simple in the Day, for a coustructioa of the term "next devisees. For further consideration of the rule of kin." 1336. To what time words refer. Sec, 133G. 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. Illustrating the provisions of this section are Tucker v. Lislwp, IG N. Y. 402; Campbtll v. Rawdoii, IS Id. 415. 1337. Devise or bequest to a class. Sec. 1337. A testamentary disposition to a class includes every person answering the description at the testator's death; but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed. Pcstliumous children: See infra, sec. 1339. 1333. Wlien conversion takes effect. Sec. 1338. "When a will directs the conversion of real property into money, such property and all its jDroceeds must be deemed personal property from the time of the testator's death. EqmtablD conversion.— It is an anplica- 41, 4G; PJieljn^ v. Pond, 2?> T<1. CO; WlrUe. v. tion of the principle that equity will consider lloivard 4G Id. 1G2; C'/a// v. //ar', 7 Dana, 1 1 ; as done what ouglit to have been done that Evan v. K'ni'!-/, 2 Hand. 120; Taylor v. leads to the doctruie formulated in the above Bcnhnm, 5 How. 23.1; Pfe also an ixLended section. Real property has been considered consideration of the subject in 1 Williams od personalty for the purposes of distribution Executors, G58 et seq., and notes, under a will iu JJramhall v. I'erris, 14 N. Y. 1339. Wlien child born after testator's death takes under will. Sec. 1330. A child conceived before, but not born until after, a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. Child eu ventre sa mere: See sec. 20, ante, and note. 1340. 3Ii0. A devise or legacy given to more than one person vests in them as owners in common. Devis333 wli3u owners in common — A ant3 in coinmon: Estafe of Utz, 43 Cal. 201. devise "to my yo'iiijest daughter, Mir^iret See as to estates in common, a/terty fails, in whole or in part, resort may be had to tlie general assets, as iu case of a general legacy. An7iuities. 3. 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 iu case of a general legacy. Hesiduari/. 4. A residuary legacy embraces only that^hich-remains-after all the- bequests of the will are discharged. General. 5. All other legacies are general legacies. Subd. 1. A specific legacy is a bequest of The peculiarities of a specific legacy are that a particular article; it is some identical thing, it is liable to ademption, canuot lie paid from irrespective of its value, and nut its ecpiivalent the general assets, and does not abate with tlio in money: Estate of Wooduvrt/i, 31 Cal. 425; general legacies: Roper on Legacies, 192; 2 Wcdloa V. Waltm, 11 Am. Dec. 450, /jpr Chun- Redf. on VVills, 141. cellorKent; Bradford v , J Jaipii'i, 20 Me. 105; Ay tlie destruction of the fund from section limited "to t'le residue after all the which it was to he paid, and that it does not bequests of the will are discharged: " Commia- abate with the general legacies. The lirst of sioners' note. thesepropositionsisdeclaredintheabovesection, Subd. 5. General legacies, payable when: the latter fiiKlssupport in section 1302, /)0N^ ami See sec. 1368, j'o.si. Realty wheth.r the sub- the various decisions and text-books treatin.; of ject of a general legacy: See aujjia in note, legacies: Sue 2 Wdliams on Executors, 1160; under subd. 1. Walton V. Walton, 11 Am. Dec. 469, in note. .1358. Properlif of intestate chargeable with debts. Sec. 1358. When a person dies intestate, all his property, real and personal, without any distinction between tliein, is chargeable with the payment of his debts, except as otherwise provided in this code and the Code of Civil Proced- ure. [Amendment, approved March 30, 1874; Amendments 1873-4, 234; took effect Jul ijl, 1874.] All property chargeable "with debts: Code Order of payment of debts: Code Civ. Civ. Proc, sec. IT) 16. Proc, sec. 1643. Debts to bo paid from •what: Code Civ. Provision for support of the family: Code Proc, sec. I.IIG; sees. 1562 et seq. of the same; Civ. Proc, sees. 14G4 et setj. eec. 1359, infra. 1359. Order of resort to property for payment of debts. Seo. 1359. The property of a testator, except as otherwise specially provided for 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 the will for the payment of the debts; 2. Property not disposed of by the will; 3. Property which is devised or bequeathed to a residuary legatee; 4. Px'operty which is not specifically devised or bequeathed; 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. [Amendmeyit, approved March 30, 1874; Amendments 1873-4, 234; took effect July 1, 1874.] Payment of debts: See sections referred to Payment of legacies: See next section and in note to section 1358, supra. note 1360. Order of resort to property for payment of legacies. Sec. 13G0. 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 i^roperty which is expressly appropriated by the will for the payment of the legacies: 2. Property not disposed of by the will; 3. Property which is devised or bequeathed to a residuary legatee; 4. Property which is [not] specifically devised or bequeathed. [Amendment, approved March 30, 1874; Amendments 1873-4, 235; took effect July 1, 1874.] Payment of legacies.— When legacies are Legacies liable for debis : See Code Civ. due: Sec. 1363, po-'^t; when may be paid: Code Proc, sees. 1563 et acq. Civ. Proc, sees. 1658 et seq. 1361. Same. Sec. 13G1. Legacies to husband, widow, or kindred of any class are charge- able only after legacies to persons not related to the testator. Legacies to kindred. — "The rule of the is presumed to be the natnrr.l inclination of the text seems to be so well founded in natural testator, that approbation is accorded to it, justice, and to accord so nearly with that which notwithstanding iho converse u laid down in 254 TmsVI, Chap. m.I GEXERAL PROVIS-IOXS. §§ 1362-13&7 Redf. on "Wills, ed. 1866, pt. 2, p. 552, snb'l, 12; be exempt from al^atement, made to a wife or where, too, it is conceded that in all probability cIiiM destitute of other provision. This was so other legacies would not ha%-e been made if the held in Duncan v. AH, 3 Pa. St. 3S2, Gibson, testator could have supposed that the legacies C. J.:" C(jmmissiouers' note, to those naturally dependent on him wotdd A general pecuniary legacy to a wife in lien have from any cause failed. "When a widow of dower does not al)ate with other pecuniary receives in lieu of her dower, the legacy is [ire- legacies, but must be paid in full if tliere are ferred as a consideration; and so niiy a legacy sulBcient assets: Potter v. BrowUy 11 II. I. 232. 1362. Ahatement. Sec. 13G2, Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. Abatement. — "A manifestly proper rule:" Legacies, c. 5. The provisions of the code on Commissioners comment. See the subject dfs- this suljject, especially as regards demonstra- discussed in 2 Williams on Executors, 13.'j9 et tive legacies, are collected and considered in Beq.; 2 Redf. on Wills, c. 4, sec. 3; 1 Roper on Estate of Apple, 5 West Coast JKep. 518. 1363. Specific devise or legacy. Sec. 13G3. In a specific devise or legacy the title passes by the will, but possession can only be obtained from the personal representative; and he may be autliorized by the superior court to sell the property devised and bequeathed in the cases herein provided. [Amendv^ent, apjrroved April G, 1880; Amendments 1880, 8 {Ban. ed. 127); took effect immediately.] Eow title passes in cases of intestacy: See sec. 1384, post. 1334. Ileir'ii conveyance good unless ivill is proxred within four yeant. Sec. 13u-4. The rights of a purchaser or incumbrancer of real property, in good failh and for value, derived from any person claiming the same by suc- cession, are not impaired by any devise made by the decedent from whom succession is claimed, unless the instrument containing such devise is duly proved as a will, and recorded in the office of the clerk of the superior court having jurisdiction thereof, or unless written notice of such devise is filed with the clerk of the county where the real property is situated, within four years after the devisor's death. [Amendment, approved April Q, 1880; Amend- ments 188n, 8 {Ban. ed. 127); took effect immediately.] Recording ■will: See Code Civ. Proc., sees, tee would be authorized to take in many cases 1311, l.ils. of protracted contests long prior to admission R3COrd:"n3 notice of devise. — "Recording of the will to probate; one year being ordi- the wriiien notice of devise is iutenresentativcs as trustees, to manage and distriljuto. The above amend- ment was adopted at the suggestiim of the code examiniTS, who said: "The amendment here made restores the law as it stood before the coile. Great cniljarrassment muse often follow from the adoption of any other rule le uling to questions as lo where tlie title re nains after the deatli of the intestate, and before the ap- pointmei't of administrator, and also upon the death or resignation of an administrator or an executor." The inheritance is regulated l)y the law in 1385. Personal representatives. Section 138.") was repealed by act approved March 30, 1874;. AmeDdmenta 1S73-4, 236; took effect July 1, 1874. 1386. Succession to and distribution of propertij. Sec. 1o8G. "When any person having title to any estate not otherwise limited by marriage contract dies, without disposing of the estate by will, it is suc- Civ. CoDK— 17 257 For example, the act of April 2, 18G0, Stats, 18GG, 8-4, has no application to the estates of person dying before the adoption of our p: obata system. The estates of s.ich persons djvolvo according to the Mexican law: Copinii, sec. 1. father. Dc3wGiitofintestate'sestates.— "Descend- If the intestate left neither issue, husband anta " of :i person are bis chilart of the 260 Title VIL] SUCCESSION. §§ 1396-1401 estate of the dececlent for tbe purposes of division and distribution thereof among his issue, and must be taken by such child, or other lineal descendant, toward his share of the estate of the decedent. Advancements: See sees. 1309, 1351, ante. 1396. Advancements, when too miuh, or not enough. Sec. 1396. If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of euch advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full shai*e of the estate of t}*e decedent. Advancemsnts: "Stats. 18.50, 221, sec. 6; be contin-^ent, it is reckoned an advance- se:; :us() lleiif. on Wills, 9)3-910, and notes, and nient after becoming ai)S(ilute. Tliis question cases there cited. In the case of Edwardu v. is considered at L'o^tlj by the author first Freeman, '2 P. Wnis. 4;)3^4,j, the subject is cited supra, but the toxt is its own rule, sufii- thorouyhly discussed. An annuity i)rovided ciently clear, and easily understood:" Com- to take effeet at the death nf the fatiier; missiouers' note. Proud V. 'J'urner, Id. uGO. If the provision 1397. W}iat are adrancemenfs. Sec. 1397. All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such by the child or other suc- cessor or heir. 1333. Value of adrancementfi, hoio determined. Sec. I;i98. If the value of the estate so advanced is expressed in the con- veyance, or in the charge thereof made by the decedent, or in the acknowledg- ment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained. 1339. WJien heir advanced to dies before decedent. Sec. 1399. If any child, or other lineal descendant receiving advancement, dies l)efore the decedent, leaving issue, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiv- ing the advancement, in like manner as if the advancement had been made directly to them. 1400. InJieritance of husband and wife from each other. Sec. 14:00. The provisions of the preceding sections of this title, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents. 1401. Communiti/ propertij, on death of wife. Sec 1401. UiDon the death of the wife, the entire community property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her, by judicial decree, for her supj^ort and maintenance, which portion is subject to her testamentary disposition, and in the absence of such disposition goes to her descoudauts, or heirs, exclusive of her husband. [Ai)iendi)ien!, approved Murch 30, 1S7-1; Aincndmenls 1873-4, 238; lix)k effect Jahj 1, 1874. J See note to next section. 261 §§ 1402-1403 ACQUISITION 01;^ PROPERTY. [Div. II, Part IV, 1402. Dii^lribidlon of common properl;/ on death of the husband, Seo. 1402. Upon the death of the husband, one half of the community property goea to the surviving wife, and the other half is subject to the testa- mentary disposition of the husband, and in the absence of such disiwsition, goes to his descendants, equally, if such descendants are in the same degree of kindred to the decedent; otherv?ise, according to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, tha entire community property is equally subject to his debts, the family allowance, and the charges and expenses of administration. Desoent of community property. — On the of the party, and the wife in ignorance of her rfea/Ao/'^^e Awst au/, one half of the community rights wr J not be barred by her own act Irum property vests in the surviving wife: Hart v. claitning her share in the community property: Hohcrtson, 21 Cal. .346; notwithstanding he King v. L !(jra>i'/e, 50 Id. 328. may liave attempted to dispose of it by will: C^pontlu'dedtho/ the wife, under the eleventh Estate of Silvij, 42 Id. 210. She takes half section of the act of 13.30, one half tlie com- ouly if the husband has descendants: Jewll v. nmuity property vests in her descendants, tha Jewell, 28 Id. 232. Her riglit to tliis propor- other laalf going to the husband: Pa/iie v. tion of the community property is postponed to Payne, 18 Cal. 201. If she had no dcsct,-nd- thepaymentof the community debts: MorrUon ants, the husband would take the entire com- V. Bowman, 20 Id. 337, and Packard v. m\\mty\)vo'^e.rty:Camm'mfjsv.Chevr'ier(Xo.l), Ardlaufs, 17 Id. 525. 10 Id. 519. WiUi respect to the righis of a The rule as to the wife's title to half the deceased wife's heirs to maintain ejeccment for conunnnity property prevailed also under the the community property where the wife had Mexican law: Scott v. IVard. 13 Cal. 458. been divorced from her husband, sea McLeoi-an The husband cannot will away his wife's v. Benton, 31 Id. 29. share in the community property: Morrison v. Now the community property, upon the L'o"-m(i?/,20Cal. 337. Biitastoher right of dec- death of the wife, belongs without administi-a- tion upon such a betjuest, see same case; E'^tate tioii to the surviving husband: Moore v. Jones, of Prey, 52 Id. G58; see also iVoe v. Splioalo, 54 G3 Cal. 12. Id. 207. The discinctive element of an election Community property defined: Sees. 1G3, is, however, a full understanding of the rights 1G4, ante. 1403. Inheritance by representation. Sec. 1403. Inheritance or succession "by right of representation" takeg place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living. Posthumous children are considered as living at the death of their parents. See sec. 1310, ante. 1404. Aliens may inherit, xohen, and how. Sec. 1404. Resident aliens may take in all cases by succession as citizens; and no person capable of succeeding under the provisions of this title is pre- cluded from such succession by reason of the alienage of any relative; but no non-ret.ident foreigner can take b}'' succession unless he appears and claima Buch succession within five years after the death of the decedent to whom he claims succession. Aliens may talic by succession: Sec sees, property is constitutional: State v. Eogers, 13 671, G72. ante, and note. An act pennitti:ig Cal. 159. non-resident aliens to inherit reul and personal 1405. When succesHlon not claimed, properly to be sold, and proceeds deposited. Sec. 1405. When succession is not claimed as provided in the preceding section, the district court, on information, must direct the attorney-general to reduce the property to his or the possession of the state, or to cause the same to be sold, and the same or the proceeds thereof to be deposited in the state treasury for the benefit of sucli nou-resident foreigner, or his legal representii- tive, to be paid to him whenever, within live years after such deposit, proof to the satisfaction of the state controller and treasurer is produced that he ia entitled to succeed thereto. 262 TiTLB Vin.] WATER RIGHTS. {§ 140G-1410 1403. When the property and estate escheat to the state. Sec. 140G. TVlien so claimed, the evidence and the joint order of the con- troller and treasurer must be filed by the treasurer as his voucher, and the property delivered or the proceeds paid to the claimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent devolves and escheats to the people of the stale, and is placed b}' the state treasurer to the credit of the school fund. 1407. Properly escheated subject to charges as otlicr property. Sec. 1107. Ileal j)roperty passing to the state under the last section, whether held by the state or its officers, is subject to the same charges and trusts to which it would have been subject if it had passed by succession, and is also subject to all the provisions of Title VIII., Part III., of the Code of Civil Pro- cedure. Escheated estates: See Code Civ. Proc, sees. 12G9-1272. 1408. Successor liable for decedent's obligations. Sec. 1408. Those who succeed to the property of a decedent are liable for his obligations in the cases and to the extent prescribed by the Code of Civil Procedure. TITLE VIII. WATER RIGHTS. This title went into effect May 1, 1872; Stats. 1871-2, 622. 1410. liighis to water may be acquired by appropriation. Sec. 1410. The right to the use of running water flowing in a river or strea^n or down a canon or ravine may be acquired by appropriation. Drainage: See the title "Drainage" in Stat- community and the pecnliar condition of thingi utes in Force; see also Pol. Code, sec. S44G, and in this stale (for whicli there is no precedent), note. ratlier than any absolute rule of la.w governing "Water commissioners: See that heading in such cases. The absence of legislatii 57 Id. 44; Farleii v. Sprlmj V(d- ky W. Co., 53 Id. 142; Uliies v. Johnson. 01 Id. 259; Lohdtll v. Simp.ion, 2 Nev, 274; 0/^/ti> •Siiwr J/. Co. V. Carpenter, 4 Id. 534; Barnes V. Sahroii, 10 Id. 217; .S'Cra/^ v. Brown, 10 Id. 317; SchUlinf] v. Rovilnyer, 4 Col. 100; (.'m«e V. iri».s"r, 2 Utah, 24S; Atchison v. Peterson, 1 Mon. T. 501. Nor has the doctrine been confined to min- in" operations; appropriation of water has been allowed for purpor-es of manufactories or iniils: McDonald v. Bear Iliver etc. Co., 13 Oal. 220; Ortman v. Dixon, Id. 33; note to 43 Ain. Dec. 279, 2S0; for irrigation: Lvbdeil v. Sinpsnn, 2 Nev. 274; Barnes v. ,'^abron, 10 Id. 217; and doubtless can be made for any imr- |iose, ]irovided it be "useful or beneficial:" 8ec. 1411. This [jeculiar right to the use of water on the public domain, in connection with mining in- ♦lustries, recognized by local customs, enforced by courts, and protectcnl by state statutes, was at length coa-lrmcd by act of congress ijassed July 2o, ISGG: U. S. li. S., sec. 233'J; and judi- cially established bj' the supreme court of the United States: Basey v. Gadar/her, 20 'Wall. 670; Atclti^on v. Peterson, Id. 507; Broder v. J\aiom Cal. 307. Proprietorahij) in difrh, and inability of legis- lature to allov/ a third person to use or enlarge the same without compensation: Trippe v. Overacl.er, 1 West Coast Rep. 352. Riparian rlglita aUscted by appropria- tion: See sec. 1422. Transfer of right of appropriation. — Right to water acquired by appropriation may be transferred like other property: McDonald v. Bear River Co., 13 Cal. 220. A person who sells his interest in the water of a stream to be used in a ditch above him does not lose hia prior right over a subsequent appropriator be- low to any water remaining: McDonald v. Askew, 29 Id. 200. Covenants in relation to the use of water, when run with the land: Weill v. Baldwin, 1 West Coast Rep. 551. A ditch, when completed, is not a mere ease- ment or appurtenance: Reed v. Sji.'cer, 27 Cal. 57; Clarl: v. Willett, 35 Id. 534; //art v. Plum, 14 Id. 148; Merrltt v. Jud I, Id. 59. A right to appropriated water which a trespasser on land has acquired does not pass to a purcliascr from the owner, as an appurteurmt to the land: Smit/i V. Lo'jan, 1 West Coast Rep. 331. One ditch cannot be appurtenant to anotiier ditcii and pass by grant as an incident, although it may pass as part and parcel of the subject-matter: Doiniell v. llumphreys, 1 Mon. T. 518; Quirk v. Falk, 47 Cal. 453; see l/iUKjariaa /[ill M. Co. V. Moses, 58 Id. 108. It can be sold by deed only: Bradley v. IIarhnes!<. 23 Id. 09; Smith v. Cl/ara, 4:J Iil. 371 ; Uill v. Neumian, 5 LI. 445; Bark'ey v. Tieleke, 2 Jlon. T. 59; Fabian v. Collins, 3 Id. 215. JNIiaing claims an I ditches may be mortgaged: IJnlm W. Co. V. Marphr/s F. F. Co., 22 Cal. 023: and new ditcher take the place of the old ones when in- tended to employ to better adva:itage the mort'jaged water privileges: J/uwj iriuit lldl G. M. Co. V. J/oxf.s, 53 Id. 1G3. Posting notice: Sees. 1415 et seq. 1411. Appropriation viiist be for a uspful purpose. Sec. 1411. The appropriation must be for some useful or beneficial pui'pose, and ^vIien the appropriator or his successor iu interest ceases to use it for such a purpose the right ceases. Ar>2:3ropria;ion must be for a useful pur- po3D — The doctrine of the above section in tluj particular is thus formulated by Professor Pomornj', 1 West Coast Rep. 040: "I;i order to make a v. lid appropriation of waters upon tlie pubiij domain, and to obtain an exclusive right to th; water thei'eby, the fundamental doctrine made with a bona fide present tlesign or inten- tion of appljdng tlij water to soma immediate, useful, or beneficial piirpose, or in present bma Jide contemplation of a future application of it to such a purpose by t!ie p iriies tliui appro- pri.iting or claiming. The purpose may be minin ;, milling, manufacturin ?, in-igating, is well settled that the appropriation must be agricultural, horticultural, domestic, or other- 205 § 1412 ACQUISITION OF PROPERTY. [Div. II, Part IV, wise; bnt there must be some such actual, posi- tive, beueticial purpose existing at the time, or contein;ilateil iii tlie future, as the object for which the water is to be utilized; otherwise no prior and exclusive right to the water can be accjuireil, no matter liow elaborate and complete may be the physical structures by which the attempted api)ropriation is effected: Weanci' v. Eurfka Lake Co., 15 Cal. 271; Maeris v. Bkk- ndl, 7 Id. 201; Davu v. Oale, 32 Id. 2G; J/c- Kivveyw Sinitli, 21 Iil. 374; Ortmaa v. Dixon, 13 Id'. 33; McDonald v. Bear River Co., Id. 220; Mr Donald v. A^ikew, 29 Id. 230; Gibson V. Puchti, 33 Id. 310; Dick v. Caldwell, U Nev. 107; Dick v. Bird, Id. IGI; Gramt-r V. Randall, 2 Utah, 248; Munro v. Ivie, Id. 535; Woolrnan v. Garringer, 1 Mon. T. 535. Under this rule, an appropriation for mere purposes of speculation is nugatory: Weaver v. Eureka Lake Co., supra. And a cli- version of water solely for the object of drain- age, without any bona fide intention of its pres- ent or future iise for other beneficial purposes, does not constitutea valid appropriation: Maeris V. Bickni'H, supra; McK'niney v. Smith, supra." So also S'icber v. Frink, 2 West Coast Hep. 208. Appropriation must be evidenced by pbysi cal acts: See sec. 1416. Changing use: See note to next section. Abandonment— The prior right to the use of water may be lost by abandonment: Professor Pomeroy's article, 2 West Coast Rep. 21)8; Davis V. Ga!e, 32 Cal. 26; Dodge v. Marden, 7 Or. 456. But it is not an abandonment to min» gle the waters from the ditch with a natural stream so that they ujay Ijc rLtahen at a point lower down the stream: Untie Cniiul Co. v. Vaughn, 11 Cal. 143; sec. 1413. But one who has discharged water from a foreign source into a stream cannot take out more than he put in: Wilcox V. J/ausch, 64 Cal. 401. Nor is it an abandonment of a former chum for an apnro- pri.itor who, while prosecuting hij woik with diligence under the first notice, [losts a sec- ond notice: Osgood v. El Dorado Co., 56 Id. 571, 579. The fact that numerous persons use an irrigating ditch constructed, repaired, and controlled at private expen-'e, and that their respective rights are not cL'arly defined, does not show a dedication to the ])ul)lic: Cede V. Sa/ford, 54 Id. 24. Abandonment from allowing another to use and divert I'.io water for many years: Smith v. Logan, 1 West Coast Rep. 391 (Nev.); Dorr v. Hammond, Id. 357 (Col.). As to the effect of nonuser, see Sieber v. Frink, 2 Id. 98. As to the requisites of an ad- verse user necessary to ripon iuto a right, see same cases; Anaheim, W. Co. v. Semi-Tropic W. Co., Gl Cal. 185; Santa Ana I. Co. v. Semi^ Tropic W. Co., 1 West Coast Rep. 487; Feliz v. Los A ngeles, 58 Cal. 73. For abandonment arising from failure to prosecute the construction of the ditches, etc., to completion, see note to section 14 1 G. Amount of property appropriated: See sec. 1415, and note. 1412. Point of diversion marj be changed. Sec. 1412. The person entitled to the use may change the place of diversion, if others are not injured by such change, and may extend the ditch, flume, pipe, or aqueduct by which the diversion is made to places beyond that where the first use was made. Cliansing use and place of diversion. "The general doctrine is settled by tlie unani- mous coiisent of the authorities, " says Professor Pomeroy, 2 West Coast Rep. 5, "that the prior appropriator is entitled to the exclusive use of the water, up to the amount embraced in his apiiropriation, either for the original [lur- pose, or for any other or different purpose, pro- vided the amount is not thereby increased, with- out dimiimUon or material alteration in quan- tity or quality; and his use will, to that extent and for such purposes, be protected against all sabsequent appropriators or claimants using or interfering with the water, both alove and below, on the same stream; and to this end he may obtain all proper remedies legal and equi- table: nines V. Johnson, ol Cal. 230; Stein Canal Co. V. Kirn I.iland I. C. Co., 53 Id. 533; Rey- nolds V. fJosmer, 51 Id. 205; Gre'/orrj v. Nel.on, 41 Id. 278; C:ark v. Willelt, 30 Id. 524; Dnvls V. Gale, 32 Id. 2j; McDonald v. A-nkew, 29 Id. *200; Ulll V. Smith, 27 Id. 47G; 32 Id. IGG; Rnplnj V. Welch, 23 M. 453; Pho&nix W. Co. v. Fletcher, Id. 432; Natoma W. Co. v. McC >ii. Id. 490; Bntte Co. v. Morgan, 19 Id. G99; Klil I V. Laird, 15 Id. IGl; Kimball v. Gearhard, 12 Id. 27; Ortmin v. Dixon, 13 Id. 33; B-ar River Co. v. N. Y. M. Co., 8 Id. 327; Ophlr Silver M. Co. v. Carpenter, 4 Nev. 531; Burner V. Sabron, 10 Id. 217; S'rail v. Brown, 10 Id. 317; ApyleJoi. V. Paterson, 20 Wall. 515." If t!iD original appropriation was for a saw- mill, t!io water m .y b3 u:3jd for a g:-ist-:nill subsequenlly erected: McDonald v. Lear River Co. , 13 Cal. 220. If the water was appropriated for a mining claim, which is worked out and abandoned, the owner may extend his ditcli and use the same quantity of water at other points or for a difierent purpose: Davis v. Gale, 32 Id. 2G; Woolrnan v. Garringer, 1 Mon. T. 535; or ceasing to use it hemayhold it for sale: Fabian v. Collin-', 2 Id. 510. The miner may extend his flume on his own claim for the express purpose of preventing a subsequent appropriator below from constructing a ditch on that c'aim, even thoug'.i the extension may not bo for a useful pur- pose: C;7vv« V. /'ne^a-s, 42 Cal. 'ii30; McKinney v. Smith, 21 Id. 374. The mere change in the use of water from one mining locality to another does not forfeit the right: Maerisv. /HcknelL'ild. 2G1. Increasing the use. — Where a prior appro- priator subsequently enlarges his ditclies, and diverts a larger amount of water than thatorigi- nally appropriated, his right to tlie increased flow is taken subject to the rights of other ap- propriators which attached prior tf> the enlarge- ment: Slehi'r v. Frlnk, 2 Wc^t Coast Rep. 93. Cliangiag place of diveral^n. — A person enticled to divert a given quantity of water from a stream may take it at any point on the stream, and may change the point of di\'ersion at pleasure, if the rights of others be not a'foeted injuriously: Kidlv, L lird. 15Cj1. 101; Bntte T. M. Co. v. Morgan, 19 Id. 009; Sibber V. Frl'ik. 2 West Coast Rep. 93. Thi! riglit to take water having been once aofjuired, t!:e :iian- ner an 1 jilace of taking it caa;iot be (piestioued by tliOoC not injured thereby: Id. 2ca Title VIII.] WATER niGHTS. 1413, 1414 1413. WuLir may he /timed in'o naiiiral channrlf!. Sec. 141o. The water appropriate*! may be turned into the cliannel of another stream and mingled with its water, and then reclaimed; hut in reclaiming it, the water already appropriated hy another must not be diminished. Usin^ r.atvrzA stream as a ditch — Tlie where one using the bed of a natural water- principle CiUuicliiLcd by t!iis section i.s applied course v.'as held not liable for the overflow of in Butte Co. v. W-.iKjhii, II Cal. 143. i^na Ji'lrli- tlie Itaiiks of the stream, it not being shown ardnon v. Kkr, '.A Id. G.']; S. C, 37 Id. 203, that Lis waters occasioac J the same. 1414. Flrd ill fi.me,/lrst in rigid. Skc. 1-iM. As between appropriators, the one fir-st in time is tlie first in right. "When rjfjhtbos'^s: See sec. 1418. Iil-2li:;3 of prior app.opriato/. — A general Btatement of tb;; rijlit of a prior appropri.-itor will be found ia the note to section 1412. The 4 West Coast Hep. 530 (Xev.); ami see cases m waters of a stream which are not embraced in this note, s/(//nr. The first in time is entitled to the a:i!Ount of cu appropiiator's claiai may l>e use and enjoy the water to the full extent of hia appropriated by others, either above <>r below; original appropriation, even when this includes and among the successive appropriators on a all the water of the stream, to iiave its (jnality Btrcam, each ia in the position of a prior one to unim;)aired, so as not to def>,at the purpose of all who arc subsequent to himself: Stein Caial sucli appropriation, and to remove obstructions Co. V. Kern Idaiid I. Co., 53 Cal. 503; Dro ler from the natural channel: Same citations; Shna eiioufth, 7 Id. .'{24; Dalton v. Bowl-er, S Id. 190; SduUiiiij v. RoniiiKj'r, 4 CjI. 103; 7'ho?-j) v. Woo^mnu, 1 Mon. T. 1G8; 'Slmp>iO)i v. ]ViUiam.% V. Ndton a \V. Co., 5'J Id. G21 ; Smith v. (/llara, 43 Id. 371; Ilio'ji"^ v. Barker, 42 Id. 233; .Vc- vada ]V. Co. v. Powell, 34 Id. 109; ])av'»i v. Gale, 32 Id. 2G; /Idl v. Smith, 27 Id. 470; American Co. v. Bradford, Id. 301; McKiiiney V. Smith, 21 Id. 374; Ortmnn v. Dixon, 13 Id. 33; Uidte County Co. v. Vaughn, 11 Id. 143; Kdli/ v. Natom'i W. Co., G Id'. 105; Lohdell v. Simjmon, 2 Nev. 274; Proctor v. Jenninjs, G Id. 83; Barnes v. Sahron, 10 Id. 217. The sur|)lu3 water of a stream, after a prior appropriation, may be the subject of a uev/ .ippropriation, and V. Smith, 7 Cal. 143; Oale v. Tuo'innue \V. Co., 14 Id. 25; Nevada Water Co. v. Pow-ll, 34 Id. 103; Baruea v. Sahron, 10 Nev. 217. He may apply it to any bcuolicial use with- out any obligation to return it to tlie stream fro.n which he took it, or to preserve its parity or (piantity: Union Mill Co. v. Ferri.f, 2 Saw. 184; J/ill V. Smith, 32 Cal. IGO; iJear /?. Co. V. York M. Co., 8 Id. 327; Mokdumne UiU Co. V. Woodbury. 10 Id. 1S5. For divertinj the -water, a -^nor appropri- ator has his remedy to preveuu future diiturb- the second appropriator will have a paramount ance, and may recover for past los'ics: See the right to use all the waters which are not re- note to sec. 1410, right of appropriator in the quired for the spcciid purposes of the prior ap- water, generally; see also in Frofes^orPomeroy'a propriator: McKinney v. Smith, 21 Cal. 374; article. 2 West Coast Rep. 219, 207. Brou-n v. MulUn, 2 West Coast. Rep. 133. Use of water, nature of : See sec. H 11, and And this surplus may arise either from an aj propriation of a part of the water steadily or an intermittent appropriation of the whole or part of the water at stated interv^als. The rule as to the rights of an appropriator of the sur- plus are applical le alilce to either case: Smith uotn. Chanseof use: See sec. 1412, and note. ILiglits of appropriators as agaiiiut the government and its grantees: See sec. 1410, and note. E::ii2nt of use — The amount of water which V. Wllara, 43 Id. 371; Barnes v. Sahron, 10 an appropriator is entitled to use — tha^ is, the Nev. 217. A person appropriating a water right on a stream already appropriatsjd acquires a right to the surplus which he appropriates; Cases i.ifra in tiiis paragrapli; Brown v. Mnllin, 2 West Coast Rep. 13. J. Tli )se who hold prior rights, abo\e or boliw, can in no way change or extend the use of their v\atjr to his prejudice, bat are limited to tiie rights enjoyed by them when he secured his own: Proctor v. Jenninq^i, G Nev. 83; L',,r/tes v. Sahron, 10 Id. 217; Lohdell v. Simimcn, 2 Id. 274. It ia a geaeral rub.!, as between persons who claim t'.ie v/atcr of a stream flowing throug'i the public land merely by the prior ap[)ropria- tioa of th^' v/ater itself, or by a prior location upon the iaml, that he has the best right who is first in tiaie: Bntte Canal Co. v. Vau;fhii, 11 Cal. 143; Orlmaav. Dixon, 13 Id. 33; SuUimn V. Beardsiey, 55 1 1. 003; Atchiion v. Peleroit, 20 \vall. 5l»7; I iMou. T. 531; Ba>iey v. Gaia- (jher. Id. 070; Stafford v. llornbiicUe, 3 II. 43'); Lol)dell V. SimjMon, 2 Nev. 274; Ophir ■'^ilivr M. Co. V. Carpenter, 4 Id. 531; James v. GooJ- exteut of the right . 03. The extent of the appropriation, and the amount of water thereby t.ikcn, may be deter- mi.ieil by the special purpose for which the appropriation was midj; and in such a case the appropriator is catiole 1 to so mueli water (inl/ a3 ii necessary for that purp.)sc: Xeoada W. Co. V. Powell, supra; an I sje Simpson v. Willla n.% 3 West Coast tlep. :)M) { Nev. ). Yet the rigiit of the first appropri it ir is noL deteimined ijy .1 c )mparisoa of the v.die of tlie water to him aa 1 to s >i)r,equenb loeat tr.;: H'ennr v. L'nreka Like Co., 15 Id. 271; Fahiaa v. CoUina, 2Moa. 207 |§ 1415, 1416 ACQUISITION OF PROPERTY. [Div. II, Part IV, T. 510. If he is entitled to all the water of the Btream at the point where his ilitcli starts, oth- ers cannot complain if it is enlarged: Janifn v. Williains, 31 Cal. "ill. If he did not appropriate all tlie water of the stream, the measure of his right to water is the carrying; capacity of his ditches at tiie time the subsequent appropri- ations were made. " He is entitled to have the water undiminished in quantity, so as to leave sufficient to till his ditch as it existed at the time the subsequent appropriations above him were made: " JJiar River Co. v. New York 21. Co., 8 Id. .327. In Ophir S. M. Co. v. Car- penter, G Nev. 393, the rule is thus formulated: "It seems that the quantity of water approjiri- ated is to be measured by the capacity of tiie ditch or flume at its smallest point — that is, at the point where the least water can h" carried through it: " See also White v. Todd Valley W. Co., 8 Id. 443; Ili-jgins v. Barker, 42 Id. 2.33; Reynolds v. Ilosmer, 51 Id. 205; Douijherty v. 1415. Notice of appropriation. Sec. 1415. A person desiring to appropriate water must post a notice, in ■writing, in a conspicuous place at the point of intended diversion, stating therein : 1. That he claims the water there flowing to the extent of (giving the number) inches, measured under a four-inch pressure; 2. The purposes for which he claims it, and the place of intended use; 3. The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it. A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the count}' in which it is posted. Notije of appropriation. — No particular in a consnicious place. Notice alone of an in- ITarjrjln. Gl Id. 305; Stein Canal Co. v. Ktm Island Co., 53 Id. 503. But it seems that the imr])Ose for which the appropriation was in- tended, and not the amount actually used dur- ing the first or second year, is to l)e considered in determining the extent of an appropriator'a right in the water: Barnes v. Sahron, 10 Nev. 217; White v. Todd V. M. Co., 8 Cal. 443. And where a person is allowed to use water which a prior appropriator of the whole stream claims, such permissive use cannot grow into a right when the prior appropriator has occasion to use all the water: Fcliz v. Lov Angelei, 58 Id. 73. Here the whole stream was claimed for the benefit of a town. See also in note to sec. 1411. No limit to amoxmt first appropriator may claim: See Professor Pomeroy's comments on this feature of the system, 2 West Coast Rep. 300. lorm of notice is required; all that is necessary is that it sliould by suthcient to put a prudent man on inquiry: Kimbnll v. Ge.arhart, 12 Cal. 27; and to this end its language must be lib.^r- ally construed: Osgood v. El Dorado Co., 53 Id. 571, 570. Th ^ usual mode of giving notice seems to be by posting written or priatad no- tices on or near the place of diversion; the above section requires that the notice should be teat to divert water of a stream for a specified purpose will not of itself constitute an appro- priation, bat it must be followed by the cora- meuceraent and comp'.etion of works for the diversio:! thereof: Sec. 1410; Thompson v. Lee, 8 Cal. 275; R ihimoii v. Imperial S. M. Co.. 5 Nev. 44; Columbia M. Co. v. Jloltie, 1 Men. T. 29G. Ezteut of uss: See note to sec. 1414. 1416. Diligence in appropriating. Sec. 141(1. Within sixty days after the notice is posted the claimant must commence the excavation or construction of the works in which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snow or rain. Commenoement and completion of Whether the work has been begun and prose- vrorli3. — After the notice of intention to ap- propriate water is given, the works by which the appropriation is to be effected must be actually commenced, and then must be prose- cuteil wiih reasonable diligence unto comple- tion, in onlcr to pjrxect the exclusive right to the use of the water which is obtained thrau di a valid a >propriation: Osjood v. El Dorado Co., 5G Gil 571, 581; Parke v. Kilhim, 8 Id. 77; Kimhi'l v. Gearhart, 12 Id. 37; Weavrr v. Eureka Lake Co., 15 Id. 271; Ophir Silver 21. Co. v. Carpenter, 4 Nev. 534; Woobnan v. Oarringer, 1 Mon. T. 535; Sieber v. Frink, 2 West Coast Rep. 93. The mere act of dig- ging a ditch wich an intent to appropriate will not of itself give a right to the water of the stream if the notice or publication of intention be not given: KimbaU v. Gearhart, 12 Cal. 27. cuted with diligence is a question of fact for the jury: Osgood v. El Dorado Co., supra; Weaver v. Eureka Lake Co., 15 Id. 271: Sieber V. Frink, 2 West Coast Rep. 98; Irwin v. Strait^ 4 Id. 5S2. No unusual or extraordinary exer- tions arc necessary in prosecuting the work, but it must be carried forward with diligence: Ophir Silver M. Co. v. Carpenter, 4 Nev. 534; Parke V. Kilham, S Gil. n. In determining whether proper diligence has been employed, it is proper to consider the nature of the climate and ol the soil; the ditiiculty of obtaining Libor, tools, or materials, and the size and extent of the work, are proper subjects to be taken into con- sideration, but not the pecuniary circumstances of the parties: Kimba'l v. Gearhart, supra, Ophir Silver M. Co. v. Carpenter, .supra. If there is great delay in the work, It is not excused by 2G8 Title VIII.] WATER EIGHTS. §§ 1417-1422 matters which do not relate directly to the en- Time from which right of appropriatioa terprise. such as tlie illness of the appropiiator, becomes vested: See sec. 1418. or the lack of means, as above stated: id. 1417. Completion defined. Sec. 1417. By " completion" is meant conducting the waters to the place of intended use. 1418. Doctrine of relation applied. Sec. 1418. By a compliance with the above rules the claimant's right to the use of the water relates back to the time the notice was posted. Inception of appropriator's right. —The ing sucli time hy relation to the time when tho rule of relation as detenniuin;^ tiie time at fust step was taken. \Vlnn the work necessary which the a[ipropiia tor's rii^ht becomes vested, to complete an appropriation of running water as dependent upon his compliance with the is not [iiosecutcd with diligence, the nglit to provisions of the law, is thus stated in Ophir tlie use of tlie water does not relate back to the Silter M. Co. v. Carpenti'r, 4 Nev. .5;>4: "In time when the tii'st step was taken to secure it, the appropriation of running water for the piir- but dates from the time wlien the work is pose of ac(juiring a right thereto, if any woric is completed or the appropriation is fully per- necessary to be done to complete the appropria- fected." Application of the princi))le of thia tion, the law gives a reasonable time in which section: Sec Sieber v. /''ri;;^, "2 West C'oast Hep. to do such work, and protects the rights dur- 9S, and Irwin v. Strait, 4 Id. 582 (Ncv.). 1419. Forfeiture. Sec. 1419. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies therewith. Non-compliance with rules: See note to previous section. Abandonment: See note to sec. 1411. 1420. liights of present claimant. Sec. 1420. Persons who have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some useful purpose, must, after this title takes effect, and within, twenty days thereafter, proceed as in this title provided, or their right ceases. 1421. Recorder to keep hook in xuhich to record notices. Sec 1421. The recorder of each county must keep a book, in which he musk record the notices provided for in this title. 1422. This title not to affect rights of riparian proprietors. Sec 1422. The rights of riparian proprietors are not affected by the pro- visions of this title. Riparian rights not affected. — See the con- 402; note to ffenth v. WlUiami^, 4^ Am. Dec. etructiun of this section in Liix v. J/ni/'jiu, 4 20i); note to Gardner v. Ni'ivhnnj/i, 7 Id. 526. "West Coast Itep. 250, now before the court ou That a riparian owner has no riglit to use all a rehearing. tha water of a stream for irrigating purposes, re- Riparian proprietors have a usufruct in the gardless of the wants of others, although it may Btream as it passes their lands: Pope v. Kiiivt'Di, be necessary for the irrigation of his land, see 64 Cal. 3; t'rn;/kfo>i v. Evaiia, 53 Id. 55; Ila'e Learned v. Taiuieman, 3 West Coast lie p. 153. V. MiLea, Id. 578; Hanson v. Alri'ue, 42 Id. A grant made by an owner of land of a right 303; and this right attaches to undergrouml to divert and use the water of a stream border- currents flowing in defined channels: llati.-ton ing upon his land cannot alTcct the rights of an v. Mei'w. supra; Hale v. McLea, supra. For adjacent proprietor to the use of his due pro- a discussion of these rights in general, see 7i'//is portion of the water: Anaheim Water Co. V, v. Tone, 58 Id. 289; Gould on Waters, 358- Semi- Tropic Co., 04 Cal. 185. An Aet to promote irriijation. • [Approved April 1, 1872; 1871-'2, 'J45.) Petition to nupervt/tors. SicTio.N 1. Whenever the owners of any body of lands susceptible of one modo of irrigation or drainage desire to irrigate or drain tho same, they may present to tho board of supervisors of the county in wliicb the lands or the greater portion thereof are situated, at a regular meeting of the board, a petition setting fortli tliat they desire to ado[)t measures to irrigate the same, tho description of the lands by legal subdivisions, the number of acres in the whole district, and the number of acres in each tract, witii the names of the owners thereof, and tlie names of three per- sona who may desire to serve as trustees for the first three nioulhs. 209 § 1422 ACQUISITION OF PROPERTY. [Div. II, Paut IV, Ptiblicntion. Si;c. 2. The petition must be verified by the affidavit of one of the petitioners, and must h« published for four weeks next preceding the liearing thereof, in some ne\v8i)aper published in the county in which the lands are situated; or if there is no newspaper publisheil in the county, then it must be jjultlisiied in some newspaper having a general circulation in the county, and on affidavit of publication must be filed with such petition. Districls. Sec. 3. Wlien a district is situated partly in diflFerent counties, the tmstees must, after the petition has been granted, forward a copy tliereof to the clerk of the board of supervisors of each of the counties in which any portion of the district may lie, and the board to whicli the same is forwarded must not allow another district to be formed within such district unless with the con- sent of the trustees thereof. Approval of pptUion — Trustees. Skc. 4. If the board of supervisors find upon the hearing of the petition that the statements are correct, and that no land is improperly included or excepted from the district, tliey must note their approval on the petition, which ai)proval must be signed by tlie president and attested by the clerk; and from and after the approval the district is duly formed, and the persons named in the petition are the trustees for the first three mouths, and until their successors are appointed. liecord. Sec. o. The petition must then be recorded by the county recorder in a book kept for the purpose. £y-laios. Sec. 6. After the approval of the petition, the petitioners may make such by-laws as they deem necess;iry for future appointment of trustees, and to effect the works of irrigation or drain- age, keep the same in repair and operation, and for the control and management thereof, by the votes or consent of a majority of the owners of the lands within tiieir districts. Record ofby-biws. Sec. 7. Tlie l)y laws adopted must be signed by persons owning a majority of the laud within the district, and must be recorded by the county recorder in the same book and immediately following the petition. Powern of trustees. Sec. 8. The board thus formed have power to elect one of their nnmber president thereof, and to employ engineers to survey, plan, locate, and estimate the cost of t!ie works necessary for the iirigation, the water rights needed, and the land needed for right cf way, including drains, canals, sluices, water-gates, embankments, and material for construction, and to con- struct, maintain, and keep in repair all works necessary to the object in view. Reports. Sec. 9. The board of trustees must report to the board of supervisors of the county, or if the district is in more than one county then to the Ijoanl of supervisors of each county in wliich the district is situated, the plans of the work and estimates of the costs, together with estimates of the incidental expenses of superintendence, repairs, etc. Assessments for tevefils. Sec. 10. The board by which the district was formed must appoint three commissioners, dis- interested persons, resident of the county in which the district or some part thereof is situated, and must view and assess upon the lands situated within the district a charge proportionate to the whole expense and to the benefits which will result from such works, which charge must bo collected and paid into the county treasury as hereinafter provided, and must be paced by the treasurer to the credit of the district, and paid out for the work of irrigation or drainage upon the warrants of the trustees, approved by the board of supervisors of the county. Warrants. Sec. 11. The warrants drawn by the trustees must, after they are approved by the board of supervisors, be presented to the treasurer of the county, and if they are not paid on presenta- tion, like indorsement must be made thereon, and they must be registered in like manner as county warrants. Payments ichere district in two counties. Sec. 12. If a district is situated partly in diflFerent counties, the charge must be paid into the treasury of the county in which the particular tract may be situated. Further assessm/'nts. Sec. 13. If the original assessment is insufficient to provide for the complete irrigation or drainage of the lands of the district, or if further assessments are from tiuic to time ref|uired to provide for tlie protection, maintenance, and repnir of the works, tlie trustees mnst p:-esent to the board of supervisors by which the district was formed a statement of tlie work to be done and its estimated cost, and the board must make an order directing the cmmission'-rs who made the original assessment, or other cominissiouers to be named in sncli order, to assess the amount of such estimated cost as a charge upon the lands within tlie district, which assessment must be made and collected in the same manner as the original assessment. List of chanjes assessed. Sec. 14. The commissioners appointed by the boaxd of supervisors ma.>t make » list of the charges assessed against each tract of land. 270 Title VIII.] WATER RIGHTS. § 1422 List, tchat to contain. Sec. 15. The list must contain: 1. A deicriiition, hy legal subdivisions or natural boundaries, of each tract assessed; 2. Tlie number of acres in eacli tract; 3. The namis of the owners of each tract, if known, and if unknown, that fact; 4. The amount of the charge assessed against each tract. List to be fled ivith treasurer. Sec. 16. Tiie list so made must be filed with the county treJasurer of the county, or if the district is partly situated in different counties, tiien tlie original list must be filed in the county first in order under alphabetical arranL^emcnt, and copies tliereof, certiiied by the commissioner, must be filed with the treasurer of each of the other counties. Charges, when constitute liens. Six. 17. From and after the filing of the list, or certified copy thereof, the charges assessed upon any ti-act of laud within the county constitutes a lieu thereon. Payments. Stc. IS. Tlie lists thus prepared must remain in the office of the treasury for tliirty dayj, or longer if ordercil by the board of trustees, and daring the time they so remuu any person mav pay the amount of the charge against any tract to the trea&urei-, without cost. Action to collect charges. Sr.c. 19. If at the end of thirty days, or of the longer time fixed by the trastees, all of the charges have not been paid, the treasurer must return the lists to the district attorney, who must at once proceed by civil action to collect such charges. War/:. Si:c. 20. The work must be executed under the direction and in the manner prescribed by the board of trustees. Accoiinfs. Sec. 21. The board must keep accurate accounts of all expenditures, which accounts, and all contracts that may be made by them, are open to the inspection of the board of supervisors, and every person interested. Propertif man ''^ arqiiired. Sec 21. The trustees may acquire, by purchase, all property necessary to carry out and maintain the system of irrigation or drainage provided for. Condemiialion. Sec 22. Tlie trustees may acquire by condemnation: 1. The liglit to the use of any running water not already used for culinary or domestic pur- poses, or for irrigating, milling, or mining i)urposcs;' 2. The right ot way for canals, drains, embankments, and other work necessary, and may take materia.ls for the construction, maintenance, and repair thereof, from lands outside of as well as wiihiu tiie limits of the district. Practice. Sec 2:5. The provisions of Title VII., Part III., of the Code of Civil Procedure are applica- ble to, ami the condemnation herein provided for must be made thereunder. Irrigation or ilrainage by individual owners. Sec 24. U'iieuever any district suscepiible of one mode of irrigation or drainage is entirely owned by parties who desire to irrigate or drain the same, and to manage the irrigation or drain- age without the intervention of trustees or the establishment of by-laws, they may ii!e the peti- tion pi oviJed for in sections one and two, and must state therein that they intend to undertake the irri3'a,tion (^r drainage on their own responsibility. Privileges of oirners. Sec 2."). If llie petition is granted, the owners of the lands have all the rights, immunities, and privileges granted to boards of trustees, and in all proceedings the names of the owners may be used insiead of the names of trustees. Ifot ap/ilirah/e to certain counties. Sec. 20. Tliis act shall not be so construed as applying to the counties of Fresno, Kern, Tulare, and Yolo. Sec 27. This act, and the provisions of the title of the Code of Civil Procedure herein referred to, so far as proceedings under tiiis act are to be had, shall be in force from and after the passage of this act. An Act authorizing the boards of supervisors of the counties in which wafer is sold for the purpose of irrigation tojix the rates at rchh-li icater shall be sold. [Approved March 20, 1880; 1880, 10 (Ban. ed. 09).] Supervisors tofx rates. Sectio.n 1. Tlio boards of supervisors of the several counties of this state in wluch water is appropriated, furnished, and sold principally for the purposes of irrigation, arc hereby author- ized and required to fix the maximum rates at which such water shall he furnished and sold, at a meeting to be held in the month of February of each year; provided, that i;i the year cigliteen hundred ami eiglity such rates shall be fixed at the first meeting after the passage of this act. The rates so fixed and established sliall be in force from and after the lirst day of July, after the date of fixing said rates, and siiali continue 1:1 force for the period of one j'ear; provided, that nothing in this section shall apply to water furnished within the limits of any incorporated city and county, city, or town. 271 § 1422 ACQUISITION OF PROPERTY. [Div. U, Part IV, Forfeiture of franchise. Sec. 2. Any person, company, or corporation collecting rates for water furnished for irriga- tion in any county in this state iu excess of the I'ates as provided in section one of this act shall forfeit for the pulilic use tlie fi-ani:hise an I water- works of sucii person, company, or cor- poration to tlie County in which such excessive rates were cliarged. Action to evforcoforfnlnre. Sec. 3. Upon alKoard of supervisors, as in this act provided, the actual rates established and collected by each of the ])ersons, companies, associa- tions, ami corporations now furnishing, or that shall hereafter furnish appropriated waters for Bale, rental, or distribution to ihe inliabitants of any of the counties of thia state, shall be deemed and accepted as the legally established rates tliereof. Hates way be changed. 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 said limi- tation of one year, to take elfect immediately in the following manner: Upon the wi-itten peti- tion of inhabitants as hereinbefore provided, or upon the written petition of any of the persons, companies, associations, or corporations, the rates and compensations of whose appropriated waters have already been fixed and regulated, and are still subject to such regulation hy any board of supervisors of this state, as in tliis act provided; and upon the like publication or post- ing of such petition and notice, and for the bke period of time as hereinbefore pi'ovided, such board of supervisors shall proceed anew, in the mmner hereinbefore provided, to fix ami estab- lish 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 otherwise, abrogate any and all existing rates thereto- fore established by such board. All water rates, wlien fixed and established as iierein provided, shall be in foi-ce and effect until established anew or abrogated, as provided in this act. Record of rates. Sec. 7. Each board of supervisors of this state, when fixing and establishing, or fixing and establishing anew, or abolisliing, any pre\iously established water rates, as h<'reinl)efore pro- vided, shall cause a record to be made thereof in the records of such board, and cause tht; same to be published or posted in the manner and for the time required for the publication or posting of said petitions and notices. Eaten vot to exceed those Jixed by nupervisors. Sec. 8. Any and all persons, companies, associations, or corporations, furnisliiug for sale, rental, or distribution any appropriated waters to the inhabitants of any county or counties of this state (other than to the inhaliitants of any city, city and county, or town therein), shall so sell, rent, or distribute such waters at rates not exceeding the estaljlished rates fixed and regu- lated therefor by the Loanls of supervisors of such counties, or as fixed and established by such person, company, association, or corporation, as provided in this act. Actual dama'jes to be recovered for exces!s given by publication in a newspaper, there shall be at- tached to a printed copy of sucli notice an affidavit of the printer or his foreman, or principal clerk of such paper, stat- ing the date of the first, last and each insertion of such no- tice tiierein, and where the newspaper was published during that time, and the name of such newspaper. Such affidavit and notice shall be recorded as aforesaid, within one hun- dred and eighty days after the first publication thereof. The original of such notice and affidavit, or a duly certified copy of the record thereof, shall be prima facie evidence that the delinciuent mentioned in section 2324 has failed or refused to contribute his proportion of the expenditure required by that section, and of the service of publication of said notice; pro- vided, the writing or affidavit hereinafter provided for is not of record. If such delinquent shall, within the ninety days required by section 2324, aforesaid, contribute to his co-owner or co-owners, his proportion of such expenditures, and also all costs of service of the notice required by this section, whether incurred for publication charges, or otherwise, such co-owner or co-owners shall sign and deliver to the delin- quent or delinquents a writing, stating that the delinquent or delinciuents by name has within the time required by sec- tion 2324 aforesaid, contributed his share for the year , upon tlie mine, and further stating therein the dis- tiitt, county and state wherein the same is situated, and the book and page where the location notice is recorded, if said mine was located under the provisions of this act; such writ- ing shall be recorded in the office of the county recorder of said county, for which he shall receive the same fees as are now allowed by law for recording deeds. If such co-owner or co-owners shall fail to sign and deliver such writing to the delinquent or delinquents within twenty days after such rontribution, the co-owner or co-owners so failing as afore- said shall be liable to the penalty of one bundled dollars to ]n- locovered by any person for the use of the delinquent or (lelinfiuents in any court of competent jurisdiction. If such co-owner or co-owners fail to deliver such writing within said twenty days, the delinquent, with two disinterested persons having personal knowledge of such contribution, may make affidavit setting forth in what manner, the amount of, to whom, and upon what mine, such contribution was made. Such affidavit, or a record thereof, in the office of the county recorder, of the county in which such mine is situated, sliall be prima facio evidence of sucli contribution. 1426p. Record of Location as Evidence. Tlie record of any location of a mining claim, mill site or tunnel right, in the office of the county recorder, as herein provided shall be received in evidence, and have the same force and effect in tlie courts of the state as the original notice. 1436q. Certified Copies of Records as Evidence. Copies of the records of all instruments required to be recorded by the provisions of tliis act, duly certified by the recorder, in whose custody such records are, may be read in evidence, under the same circumstances and rules as aro now, or may be hereafter provided by law, for using copies of instruments relating to real estate, duly executed or acknowledged or proved and recorded. 1426r. Construction Existing; Mining Districts and Regu- lations Not Affected. The provisions of this act shall not in any manner be construed as affecting or abolishing any min- ing district or the rules and regulations thereof within the state of California. 1436s. Disqualification for Failure to Perform Develop- ment Work. The failure or neglect of any locator of a min- ing claim to perform development work of the character, in the manner and within the time reciuired by the laws of the T'nited States, shall disqualify such locators from relocating the ground embraced in the original location or mining claim or any part thereof under the mining laws, within three years after the date of his original location and any attempted re- location thereof by any of the original locators shall render sucli location void. Sec. 2. All acts and parts of acts in conflict with this act, are hereby repealed. Civ. Code, 1909. Div. m, Pakt I, Title H.] rNTERPRETATION OF OBLIGATIONS. §§ 1427, 1428 DIVISION THIRD. Pabt I. Obligations in General 1427 II. Contracts '. 1549 III. Obligations Imposed by Law 1708 rV. Obligations Arising from Particular Transactions ^ 1721 PART I. OBLIGATIONS IN GENERAL. Title I. DEFDdTioN or Obligations 1427 II. Interpretation or Obligations 1429 III. Transfer of Obligations 1457 IV. Extinction of Obligations .,,, 1473 TITLE I. DEFINITION OF OBLIGATIONS. 1427. Oligation, what. Sec. 1427. An obligation is a legal duty, by whicli a person is bound to do or not to do a certain thing. The above section is cited generally in Wood v, Franks, 56 Cal. 217, 218. 1428. 77010 created and enforced. Sec. 1428. An obligation arises either from: ;1. The contract of the parties; or, 2. The operation of law. An obligation arising from operation of law may be enforced in the manner provided by law, or by civil action or proceeding. [Amendment, approved March 30, 1874; Amendments 1873-4, 239; took effect July 1, 1874.] Obligations. — Subd. 2. Operation of cover the amount which ■will compensate him law.- -Wherever there is an obligation arising for all the detriment proximately caused by from operation of law, and breach of that obli- such breach: Wood v. Franks, 56 CaL 217. gation, the party injured may, by action, re- TITLE II, INTEKPKETATION OF OBLIGATIONS. Chapter I. General Rules of Interpretation ....... ..»._* w. . . . 1429 II. Joint or Several Obuoations .^. 1430 III. CoNDmoNAL Obligations ^ .^ . . 1434 IV. Altebnatiye Obligations , . .^ », » . .^ . 1448 275 §S !429-1434 OBLIGATIONS IN GENERAL. [Dnr. Ul, Part 1, CHAPTER I. GENERAL RULES OF INTERPRETATION. 1429. Gp-ni'ral rxdeif. Sec. 1429. Tlie rules which govern the interpretation of contracts are pre- scribed by Part II. of this division. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted. Interpretation of contracts: See sees, their interpretation being a part of their essen- 1635-lGGl. tial nature. Contracts are interpreted by rulea '•Obligations may he divided into three which differ materially from the rules govern- classes, arising respectively out of contract, lug the interpretation of statutes, ami the two common law, or statute. Those which are ini- sets of rules, therefore, could not well be united posed by the coaiuiou law explain themselves, in one chapter:" Commissioners' note. CHAPTER II. JOINT OR SEVERAL OBLIGATIONS. 1430. Obligations, joint or several, etc. Sec. 1430. An obligation imposed upon several persons, or a right created in favor of several persons, may be: 1. Joint; 2. Several; or, 3. Joint and several. 1431. When joint. Sec. 431. An obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint, and not several, except in the special cases mentioned in the title on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary. Promise united in by several, all of whom Proraise in the singular, but executed by receive some benefit, is presumed to be joint several, is presumed to be joint and several: and several: See sec. 1G59, pod. Sec. IGGO, post. 1432. Contribution between joint parties. Sec 1432. A party to a joint or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate con- tribution from all the parties joined with him. Contribution between sureties: See sec. satisfy the obligation, and must establish a 2S4S, pod. The doctrine of contribution ap- claim a^'ainst his joint obligor before the lat- plies crjually between those who are originally ter's liability is fixed: Bdi v. WaUh, 7 Cal. 84. bound as it does between co-sureties: Chlpman la actions for contribution, the statute of lim- V. Mcrr'.ll, 20 Cal. 130. Contribution between itations l)egiu3 to run from the payment of the joint piincipals: See the note to lleiid'>r'ion v. debt: SIxrwood v. Dunbar, 6 Id. 53. McDujfte, 20 Am. Dec. 557. A party must CHAPTER III. CONDITIONAL OBLIGATIONS. 1434. Obligation, when conditional. Sec. 1434. An obligation is conditional when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. ""WTiether a contract is conditional or Johns. 14."); see Tipton v. Feitmr, ?f> T^T Y 42.1; not is to be determined by the rules of inter- Grnif v. Johnson, 5 Id. 247; Olahonn v. Ilnys, pretation hereafter given. The intention of the 2 Man. & G. 26G. And these cases cited give parties, as gathered from the whole contract, instances of conditions when preceileut and is nuperior to all technical rules: Parnwlfe v. when subsequent: See note to sec. \\A2, post:" Omrtijo etc. li. R. Co., 6 N. Y. 74; Sdden v. Commissioners' note. Prinyk, 17 Barb. 458; Barruao v. Madaii, 2 276 Title II, Chap. III.] COXDITIOXAL OBLIGATIONS. f§ 1435-1439 1435. Conditions, kinds 8, iw/ra. Sec 1 Wliait. on Coiit., o. 17, sees. 545 et seq., where the subject is treated. Conditions of oivnership: See sees. 707, 70S. a>df. Conditional legacies: See ante,, sees. 1345, 1340. Conditions precedent: See next section. 1436. Conditions precedent. Sec. 143G. A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is per- formed. See sees. 707, 708, ante. Esamples of conditions precedent — An offer to iierform certain services provided tiie other certain named conditions: Northam v. Gordoti, 46 Cal. 582; a resolve of the directors of a mining corporation to sell the mine of the proposed vendees will pay at a time fixed a cei'tain sum: Gordon v. Sican, 43 Iil. 5G5. Making the paynient of a promissory note de- pendent upon the profits of the maker's mines: yVolf V. A/arsh, 54 Id. 228; promise by con- tractors to pay employees only where the latter cannot after due diligence collect the money from the o\vners: Bachman v. JSIeypr, 49 Id. 220; builder's agreement to pay employees on the sale of the vessel built: WiUisltm v. Perkina, 51 Id. 5.J4. Couits are disinclined to construe the stipu- lations in a contract to do certain things within a given time, in consideration of the payment of money by tlie other, as conditions precedent, unless compelled to do so by the express lan- guaije of the contract: Front St. M. le v. Jackson, 24 Id. 632; Beecher V. Conradl, 13 N. Y. 108; Dunham v. Pettee, 8 Id. 508; Lester v. Jewetl, 11 Id. 453; Bedding- ton V. Chase, 3t Cal. 666; Salmon v. Ilajfrnan, 2 Id. 138. When one party offers to fulfill his part in a concurrent obligation and the other refuses or neglects to perform his part, he who is ready and offers has fulfilled his engagement. §§ 1440-1449 OBLIGATIONS IN GENERAL. [Div. Ill, Part I, ditionsprececlent and what they are, see Dudley Benftley v. AfwUl, 12 Id. 231; Oihhons v. Srott, V. Thoraaii,2'^C\x[.'iQo; Middletonv. BalluKjall, 15 Id. 2S4; Palmer w Vance, 13 Iil. 5r)3; Fol- 1 III. 44G; /Irauii.du v. Mesick, 10 Id. 9o; C'ft//- mm v. Bartlett, 2 Id. 163; Vanre v. Diii'jley, 14 Inn V. Y/alker, 10 Id. 450; Mesick v. Sunderland, Id. 53. Concurrent and dependent conditions: G id. 297; Kiiikead v. Shreve, 17 Id. 275; Smith See 6'//ti^/t v. B. d- M. Ji. B., 6 Allen, 262. V. Gompton, 6 Id. 24; Bogers v. Cody, 8 Id. 324; 1440. When performance, etc., excused. Sec. 1440. If a party to an obligation gives notice to another, before tbe latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to eufoi'ce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party. Refusal by one party to perform, when iff's failure to perform: Brooklyn Life Ins. Co. not retracted before the time for performance, v. Bledsoe, 52 Ala. 53S; and see Cojjiii v. Uey' excuses performance by the other: Bunie. v. nolds, 21 Minn. 456; Simmons v. Green, 35 Ohio Koop, 48 N. Y. 225; Riiffkhi v. Baird, 73 N. C. St. 104. 283; Sii'linjs v. Goodyear Dental Co., 30 Mich. Refusal to acoept p3rformanoe before the 313; Ilaiiics v. Tucker, 50 N. II. 307, 312. time to perform is equivalent to an ofTer of per- The act relied upon as a waiver of perform- formance and refusal: Sec. 1515, post, ance must be the proxiuiate cause of the plaiut- 1441. Impossible or unlawful conditions void. Sec. 1441. A condition in a contract, the fulfillment of which is impossible or unlawful within the meaning of the article on the object of contracts, or which is repugnant to the nature of the interest created by the contract, is void. Object of contracts: See sees. 1595, pos<, et ing to the promisor a profit; the promisor seq. ^ sold I he mines, thus rendering the performance Unlawful conditions: See sees. 709, ante, of the condition precedent impossil)lc. The et seq. ol)li2;ation to pay thereby became absolute: Conditions, when impossible, within the Wolfw Marsh, 54 Cal. 22S; so, Booth v. S,>uy- meaning of al)Ove section: See sees. 1595, post, ten D-njcd Co., 60 N. Y. 4b7, 401; WhUaker v. et seq. The destruction of that upon the con- Uawley, 25 Kan. 674, GSO; Prhe. v. Pepper, 13 tinned existence of which the performance of Bash, 42; Walker v. Tucker, 70 Iil. 527, 543; the condition depends, excuses non-perform- Leopold v. Salkey, 89 Id. 412, 419; Wells v. ance. Thus, where one agreed to pay a sum Cainan, 107 Mass. 514. of money conditioned upon certain mines yield- 1442. Conditions involving forfeiture, how construed. Sec. 1442. A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. CHAPTER IV. ALTERNATIVE OBLIGATIONS. 1448. Who has the right of sdedion. Sec 1448. If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation. Alternative obligations: See 2 Whart. on Gout. 019. 1449. Right (f selection, hoio lost. Sec. 1449. If the party having the right of selection between alternative acta does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose, or if none is so fixed before the time at which the obligation ought to be performed, the right of selection passes to the other partj'. ^ See also Beu-rick v. Goldstone, 48 CaL 554, wliere a p irty lost his elecUon by not cxercisina it on the day named. 278 Title III.] TRANSFER OF OBLIGATIONS. §§ 1450-1460 1450. Alternatives indivisible. Sec. 1450. The part}' having the right of selection between alternative acta must select one of them in its entirety, and cannot select part of one and part of another without the consent of the other party. 1451. Nullity of one of alternative obligations. Sec. 1451. If one of the alternative acts required by an obligation is such as the law will not enforce, or becomes unlawful, or impossible of performance, the obligation is to be interpreted as though the other stood alone. TITLE III. TRANSFER OF OBLIGATIONS. 1457. Burden of obligation not transferable. Sec 1457. The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise, except as provided by Bection fourteen hundred and sixty-six. Transferring the burden of obligation. — accept the service from a third person, and to •'This is as true of coveumits ruaiiiu,^ with the release hiin therefrom: Robson v. Drummond, land as of any othur obligations. The original 2 Barn. & Adol. 30."?. It is not meant by tiiis oov-en.intor remains liable t'> tlie covenantee, section to imply that a thi.d person cannot notwithstanding that tin; land passes into other assume the oWliuations of a contract between Lands: J/ou-iC v. Burr, 2\ l>arb. 52.5; iJamh v. other parties, Imt only tliat he cannot i&'ieve a Jlofman, 3 E. D. Smith, 361; Port v. Jnckson, party thereto from his obli^'ations withouc the 17 Johns. 2."9, 479; Jackson v. Brownson, 7 Id. consent of the creditcr:" Code commissioners' 227. So wiiere one has agreed to perform a note, service, he cannot compel the other party to 1458. Bights arising out of obligation transferable. Sec. 1458. A right arising out of an obligation is the property of the person to whom it is due, and may be ti'ansf erred as such. Assignment of things iu action: See sees. 953, 954, ante. 1459. Non-negotiable instruments may be transferred. Sec. 1459. A non-negotiable written contract for the payment of money or personal property may be transferred by indorsement, in like manner with nego- tiable instruments. Such indorsement shall transfer all the rights of the assignor under the instrument to the assignee, subject to all equities and defeases existing in favor of the maker at the time of the indorsement. Negotiable instruments, w^hat are: See favor of the maker at the time of tlie indorse- secs. 30S7, ;'0s7, tt seq. ment: Id.; Brown v. Witts, 57 Id. 304; Code Non-negotiable instruments are assignable Civ. Proc, sec. 3GS. The assignee of a non- by indorsement in like manner with negotiable negotiable instrument indorsed in blank may fill instruments: Lui-aa v. Pico. .55 Cal. 126; but up the blank in favor of himself: Lnca.'iv. Pico, subject to all equities and defenses existing iu supra; Poorman v. Mills ei)e- ticiiLir maimer: Wi>ijield v. Ili-nniiifj, 21 N. J. fit of t!ic land, or of some part of it: See Lajfan E.|. ISS; and see Tyler on Laud. & Ten., sees. V. Najlee, 9 Cal. 662; thus, covenants fur the 2G0 et sei|., and sees. 444 et seq. ; 1 Waslib. addition of some new thing to the laud: See on Il'^al Prop. sees. 32(5 et seq.; 1 Smith's sec. 1464; to maintain fences: Broimoii v. Lead. Cas. ] '.19, note to Spencer's Ca-'/s, 39 Id. 3G0: /had v. Ainidnn, 4 Hill, 345; Letter of real property to secure quiet pos- Clai/comb v. Munyer, 51 111. 373; Burtnera v. session of tlie hirer: See sec. 1927, post. 1464. Whal covenants ran with land when a^sign.'i are named. ' Sec. 14G4. A covenant for the addition of some new thing to real property, or for the direct benefit of some part of the property not then in existence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns or to the assigns of the cove- nantee, runs with land so far only as the assigns thus mentioned are concerned. See ante, sec. 1462. 1465. Who are bound by covenants. Sec. 14G5. A covenant running with the land binds those only who acquire the whole estate of the covenantor in some part of the property. 14G6. Who are not. Sec. 14CG. No one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits. 1467. Apportionment o/ covenants. Sec 14G7. "Where several persons, holding by several titles, are subject to the burden or entitled to the benefit of a covenant running with the land, it must be apportioned among them according to the value of the property sub- ject to it held by them respectively, if such value can be ascertained, and if not, then according to their respective interests in point of quantity. 280 Title IV, Chap. L] PERFORMANCE. §§ 1473-1478 TITLE IV. EXTINCTION OF OBLIGATIONS. Chapter I. Perform vnce 1473 II. Offer of Performance 1485 III. Preventiox of Performance or Offer 1'^ 1. IV. AccouD AND Satisfaction 1521 V. Novation 1530 VL Release 1 '341 CHAPTER I. PERFORMANCE 1473. Obligation exdnguiftJied by performance. Sec. 1473. Full perlormaace of an obligation by the par.y whose duty it is to perform it, or by any other person on his behalf, and with his asstsnt, if accepted by the creditor, extinguishes it. " Perfoi-maiice by a third person, without Simpson v. Egjinqton, 10 Exch. 84.'5; James v. autlmrity ffoMi the d'-btof, does I'ot extinguish Ikuucs, 12 C. B. 791; see P/iillips v. Bfrijcr, the (k'ht: Mulhr \. Eho, 14N.Y. GO-j; Dunleh 8 Barb. 527; see particularly, Myprs v. South V. //a//.'«/>-r/.-, IQWcn.l. 408; Bfeallc'i/ v. il hile, F. U. W. Co., 14 Cal. 208; see also note to 4 Pai.i^e, 0J)5. But by any other [lerson on sec. 1478, pout:" Coiiinii^sioners* note, behalf of t'le debtor, and with his assent: See Eii'ect of jiayment by a stranger is discussed Kemp V. /Jail.'*, 10 ICxch. 607; Jones v. Broad- in Neely \. Jones, 1(3 W. Va. C25. hu,>'t, 9 C. B. 173; B,'Uhaw v. Bush, 11 Id. 191; 1474. Performance by one of several joint debtors. Sec. 1474. Performance of an obligation by one of seYeral persons who are jointly liable under it extinguishes the liabili'"y of all. 1475. Performance to one of joint creditors. Sec. 1475. An obligation in favor of several persons is extinguished by per- formance rendered to any of them, except in the case of a deposit made by owners in common, or in joint ownership, which is regulated by the title oa deposit. 1476. Effect of directions by creditors. Sec 147G. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance. Payment transmitted in the manner directed Lithgoiv, 3 Mass. 249; Jlforfjnn v. Blchard'ion, by tlie creditor is at his risk: Wakefield v. 13 Allen, 410; (raniey v. V/o«;e, 9 Gray, 404. 1477. Partial performance. Sec 1477. A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is volun- tarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor cannot avoid retaining it without injuring his own property, his retention thereof is not presumed to be voluntary. ] 478. Payment, what. Sec 1478. Performance of an obligation for the delivery of money only is c>dled payment. Payment. — " Where money is delivered l>y payment unless it is shown to be intended as a one jiarty t<> another, and credited on account loan. But sucii is not the case with (other) b> him who received it, it will be considered a personal property, even though a value be 281 §1479 OBLIGATIONS IN GENERAL. Piv. Ill, Part I, affixerl tliereto: Norton v. Larro, 30 C.il. 126. So far as extiiiguisliiiig obligations for the de- livery of money, payment and performance have the ^ame meiuung, so that under this peetinn it may not be improper to note the lea^ v. Iliiichleit, G Id. 283, where the defendant, being indebted to the plaintiff, a banking firm, made a pay- ment on account, in the bank, to one of the plaintiff's clerks, and on a subsequent day agreed to lend to the clerk the amount thus paid, who took the money and used it, and tha amount thus paid was never credited to the defendant on the books of tiie plaintiff, it waa held that the amount paid by the defendant, in the usual way of business, was a legal i)ay- ment, and that the defendant lost all control over it. If the defendant is liable for > ha amount advanced (by plaintiff) to the clerk, it must be in an action for thus advancing it, and not in an action on the original indebtedness of the defendant. In Griffith v. Grogan, 12 Id. 314, a part payment by one of two joint debt- ors will not discharge such debtor from the payment of the balance. His obligation is to pay the whole, n(jt a proportionate share. An assignment of a joint and several negotiable promissory note by the payee to one of the makers before its maturity amounts to pay- ment, and the right of action against the makers is not revived by a subsequent assign- ment to a third person after maturity. If the subsequent assignment, however, was made to an innocent person before maturity, a right of action would exist in his favor against the makers: Gordon v. Wanfiey, 21 Id. 77. For other cases deciding what did and what did not constitute a payment, see Cook v. Diirin, 22 Id. 157; Lodfje v. Tiirman, 24 Id. 385; GrifUlh V. Grorjan, 12 Id. 317; Colton v. Scarry, 22 Id. 49G; 'Mount v. Chapman, 9 Id. 294; McCahe. v. Grejj, 20 Id. 509; Mulford v. Extn- dillo, 23 Id. 94; Gurj v. Du Uprey, IG Id. 195, and cases there cited. And for evi lence of payment, see Smith v. Ihirper, 5 Id. 329, and compare with Banks v. J\rarshd!!, 23 Id. 223; see also Morrill v. Morrill, 26 Id. 283. See, further, 'Accord and Satisfaction,' and 'Set- offs,' or 'Counter-claims:'" Commissioners' note. 1479. Application of act by way of performance or extinctions of obligation. Sec. 1479. Where a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally applicable to two or more of such obligations, such performance must be applied as follows: 1. If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obliga- tion be manifested to the creditor, it must be so applied; 2. If no such application be then made, the creditor, within a reasonable time after such j)erformance, ma.y apply it toward the extinction of any obliga- tion, performance of which was due to him from the debtor at the time of such performance; except that if similar obligations were due to him, both individu- ally and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an application once made by the creditor cannot be rescinded without the consent of the debtor; 3. If neither party makes such application within the time prescribed herein, the performance must be applied to the extinction of obligations in the following order; and if there be more than one obligation of a particular class, to the extinction of all in that class ratably: 1. Of interest due at the time of the performance; 2. Of principal due at that time; 3. Of the obligation earliest iu date of maturity; £32 Title IV, Chap. II.] OFFER OR PERFORMANCE. 81487 4. Of an obligation not secured by a 5. Of an obligation secured by a lien approved March 30, 1874; Amendments " This subject is usually treated exclu- sively with reteieiice to (laymeiits of money, wliicli have, indeed, furnished all the cases upon which decisions have been reported. Obvi- ously, however, the same principles are equally applicable to all classes of contracts; as, for example, where one has agreed, at various times, to deliver parcels of merchandise of tiie eamj species, such as wheat, flour, fruit," etc.: Coininissiouers' observation. Aoplicatiou of payments Subd. 1, Dsbtor'3 prefereuce. — The debtor may. at or before the time of payment, direct its applica- tion, and if the creditor receives the money, he is bound by the direction: Wf7idt v. Rosx, 33 Cal. G50; CardiiieU v. O'Dotvd, 43 Id. 586; Clarke v. Scoti, 45 Id. 8G; Youmam v. I/eari', 34 Mich. 401; McDonell v. Montrjomery, 20 Ala. 313; WhUahir v. Oroover, 54 Ga. 174; C'hampenos v. Fort, 45 Miss. 355; Stone v. Sey- mour, 15 Wend. 19; Munger on Application of Payments, 11. Tliis direction may be made verbally, even where the payments are to be anplied to one of two promissory notes: Clarke v. Scott, 45 Cal. 86. If after having directed the application of the payment the debtor takes up notes to which the creditor had applied tlie payments contrary to the direc- tions, yet will such acquiescence bind the debtor:' Canline/l v. O'Doml, 43 Id. 586. Tlie debtor loses tlie right to make tlie ap- plic.atiiin if he does not exercise it at the time of payment: Bank of Nnvburgh v. Bi'jler, 83 N, Y. 51, G;], G4; Bell v. Raddiff, 32 Ark. 645, 665; Pr/mrone v. Aiulerson, 24 Pa. St. 215. Subd. 2. Applioation by creditor.— If tlie debtor omits to direct to which indeljtedness the payment shall be applied, the creditor may apply it to any debt then due: Wemlt v. A'o.ss', 33 Cal. 650; Van Norden v. Buckley, 5 Id. 233; JJaynes v. Waite, 14 Id. 447; Bean v. Brown, lien or collateral undertaking; or collateral undertaking, [Amendment, 1873^, 239; took effect Julxj 1, 1874. 1 54 N. H. 395; KiUorln v. Bacon, 57 Ga. 497l Crisler v. McCoy, 33 Miss. 445; Kiiitj v. An- drews, 33 Ind. 429; Ilouxird v. McCall, 21 Gratt. 205; S/imt/ue v. Jlazenwinkle, 53 111. 419; Munger on Application of Payments, 32. When the creditor has tjnce made the applica- tion, he cannot change it without the consent ol the debtor: Wendt v. A'ovs, 33 Cal. 650. Thfl creditor cannot split the payment and apply i* in part to seveial demands: Aycrw Haicknin, 19 Vt. 20; Ulackiiiaii v, Leonard, 15 La. Ann. 59. The institution of suit on one of two claims evidences his design to apply the payment to the other: /iay/.e.s v. Waile, 14 Cal. 447. When the creditor holds two claims, one in- dividually, the other in a fiduciary capacity, the unajiplied payment must be applied to the claiLus ratably: Wetidt v. A'o.ss, 33 Cal. 650. Subd. 3. Application by law.— Where neither creditor nor debtor has made applica- tion, the law makes it fur them: 1. To the ex- tinguishment of interest, and then the principal: Backus V. Minor, 3 Cal. 231; Peopfe v. Xew York, r) Cow. .331; //earn v. Cutherlh, 10 Tex. 216; Lrt.sA v. Ed'ierton, 13 Minn. 210; Moore v. Kijl 78 Pa. St. 9(3; Fallz v. Dav'.% 20Gratfc. 903; 2. To the extinguishment of obligations earliest" in maturity: Smdh v. Lloyd, 11 Leigh, 512; Chirk V. Kniijhf, 31 Vt. 701; Pickeriw/ v. Day, 2 Del. Ch. 333; Wortkley v. Enm-r>^on, 116" Mass. 374; Lanndon v. Bowe'i, 46 Vt. 512; Cushiwi V. Wymaii, 44 Me. 121; and, 3. To an obligation not secured rather than to one whicli is: Lonqdon v. Bowen, 46 Vt. 512: J>e(tn V. Brotcn, 54 N. H. 395; Pierce v. Sweet, 33 Pa. St. 151; Maihi-wa v. Switzler, 40 Mo. 301; Gtw- ton V. Barney, 1 1 Ohio St. 506. For a valuable collection and arrangement of the decisions upon this topic, see Benjamin on Sales, 4th Am. ed., sees. 1103 et seq., auJ note. CHAPTER n. OFFER OF PERFORMANCE, 1485. Obligation extinguished by offer of performance. Sec. 1485. An obligation is extinguished by an offer of performance, mado in conformity to the rules herein prescribed, and with intent to extinguish tho obligation. Oiler of performance, generally. — "This so clearly settled, and this chapter may have section must be taken in connection with the the effect to modify the law as contained in the. succeeding sections of this chapter. When decisions of our supreme court: See Redding- thus taken, the law as laid down' is to the ef- ton v. Chntte, .34 Cal. 666; Perre v. Ca>ilro, 14 feet: 1. That a dcl>t payable in specific articles Id. 519; and compare these cases with Hayes may lie discharged by a tender of those articles v. JosepM, 26 Id. 535; Lamott v. Butler, IS Id. " ~" " 32; 6'«;iac V. /l/;af/ie, 25 Id. 502; and see, par- ticularly, Ketchum V. Crippen, 37 Id. 223, where the effect of a tender is discussed, but not decided, and Perre v. Castro, snp'U, is commented on disapprovingly; see also Oaven V. Ihu/aii, 15 Id. 20S. But whether the rules as laid down in this and succeeding sections have or have not heretofore been the law ia tills state wuh respect to all obligations other than for the payment of money, they certainly have not been so until now in any state with at the proper time and place; 2. That the arti cles must be set apart and designated so as to enable the creditor to distinguish them from others; 3. The tender umst be of all the arti- cles, and not a tender of a portion only; 4. Tender must lie made by the debtor, or with his assent; 5. The tender must be to the cred- itor, or in his absence, then as authorized by this chapter; 6. Tlie property so tendered vests in the ci-editor and is at his risk. ♦ » * It this state the rule has not, perhaps, been 283 §§ ilS(J-i48d OBLIGATIONS IN GENERAL. [Div. Ill, Part 1, respect id pecuniary obligations. The debtor lias bad, lu.Tutofore, no power to nd himself of tile (lei.t without the consent of the creilitor: See Dixon v. Clarke, 5 C. B. ;}G.)-;577; \y, together \vith certain realty, a ten- der of a bdl ot sale for the ioniier alone is not butiicient: Plalh v. Kdziiiulier, 52 Cal. 491. 1487. Bij whom to he made. Sec. 1487. An offer of performance must be made by the debtor, or by some person on bis bebalf and with his assent. Tender, by •whom may be made. — A per- Bon having no interest in the transaction can- not make a tender without authority, or the consent of the creditor, so as to be binding in the latter: Mahler v. N^ewbancr, 32 Cal. IGS. Whether the mere fact that the creditor knew on whose behalf the tender was made would alter the case, see same decision. As a general ride, the tender must be made by the debtor or by his legal represKntat:ve: McL)oii'/a/d v. Donpherli/, 1 1 Ga. 570. See the contrary rule in Louisiana: Stalf v. IHUbnry, 29 La. Ann. 787. St-e the elTect of payment hy a stranger discussed in Neclij v. Jones, 10 W. Va. C25. 1483. Offer of performance, to whom, and where to he made. Sec. 1488. An offer of performance must be made to the creditor, or to any one of two or more joint creditors, or to a person authorized by one or more of them to receive or collect what is due under the oblig'ation, if such creditor or authorized person is present at the place where the offer may be made; and if not, wherever the creditor may be found. [Amendment, approved Marcli 30, 1874; Amendments 1873-4, 240; look effect July 1, 1874.] See next section. 1489. Where offer may he made. Sec 1489. In the absence of an express provision to the contrary, an offer of performance may be made, at the option of the debtor: 1. At any place appointed by the creditor; or, 2. Wherever the person to whom the offer ought to be made can be found; or, 3. If such person cannot, with reasonable diligence, be found within this state, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can, with reasonable diligence, be found within the state; or, 4. If this cannot be done, then at any place within this state; Delivery of personalty: See pofit, sees, '17.''3 et seq. "Where the time and place of perform- • «n'je are tixed by tiie terms of the contract, or \)y subsequent agreement, the creditor must jnake his oli'er in accordance therewith, and without demand: Wide commissioners to be "perhaps nev.-," eiting Snulh V. Smith, 25 Wend. 405. This section H also said by the commissioners to provide for tliat class of persons who do business within, but reside witliout, the state. 2S4 Title IV, Chap. II.] OFFER OF PERFORMANCE. §§ 1490-1493 1490. When ofet must be made. Sec. 1490. "Where an obligation fixes a time for its performance, an offer of performance must be made at tbat time within reasonable hours, and not before nor afterwards. day at which a tender generally may be made, see J/nll v. ]V/uUi>-r, 10 11. I. 5:50. 534. The sufficiency of a tender of a sum of money after sundown was admitted in McClarty v. Go/cey. 31 Iowa, 505. Time of perf orniance. — The ofTer should be made at a rea.sonable hour: Cronivgerv. Vrodcer, 62 N. y. 151, where a tender of wool after ten o'clock at night was held bad. For a review of the decisions bearing upon the hour of the 1491. Same. Sec. 1491. "Where an obligation does not fix the time for its performance, an offer of perfonnance irnxj be made at any time before the debtor, upon a reasonable demand, has refused to perform. "Wliere no time is limited, the party has until a demand of performance is made: Hits- eellv. Ornuibee, lOVt. 274; Story on Cont. 1411; Vance v. liloomer, 20 Wend. 19(i; Rice v. Churchill, 2 Uenio, 145. In Brewian v. Ford, 46 Cal. 7, on a contract for the conveyance of land, the court .said that the law would imply that where no time of performance was lixed, the contract was to bo performed immediately, or, at most, within a reasonable time. That tile time of performance may be. ex» tended \>y parol, see Luckhirt v. Oijdeiit, 30 Cal. 547; Wa>i;je7ihri7n v. Graham, 3'J Idi 169. See po.^t, sec. I75G, as to giving r^tice of. time of delivery ou sales of personaiiy. 1492. Compensation after delay in performance. Sec. 1492. "Where delay in performance is capable of exact and ; entire com- pensation, and time has not been expressly declared to be of the essence of the- obligation, an offer of performance, accompanied with an offer of such com- pensation, may be made at any time after it is due, but without prejudice to any rights acquired by the creditor, or by any other person, in tlie-mean time. Object of section. — " 'Where delay in per- it clearly ought to be allowed before any liti- formaiice is capalde of exact and entire com- pensation, and time has not been expressly declared to he of the essence of the obliga tion.' This clause obviates the difficulties which constantly arise in determining whether time is of tlie essence of a contract or not. The provision that *an offer of performance, accompanied with an offer of such compensa- tion, may be made at any time after it is due,' is also new. But as such tender is permitted by statute after an action has been commenced, gation is had, to stop ijifcerest and avoid costs. Undoubtedly it is not allowed by the connuoa law: Poole v. Tumhrid'je, 2,Mee. & \V. 223; Hume V. Peploe, 8. East, IGS; but the judges acknowledged the haidship of the law on this point. In Connecticut this rule has become law through usage: Tracy v. Strong, 2 Conn. 65!):" Commissioners' note. Time aa tlie^ essence of a contract: Se» Ponieroy's Specif. l\rf. Cont., sec. 370, for a. consideration of this subject. 1493. Offer to be made in good faith. Sec. 1493. An offer of performance must "be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor. Must be in good faith: Fisk v. II olden, 17 Tex. 408. 1494. Conditional offer. Sec. 1494. An offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform. Tender must be unconditional: HrooUyn Bank V. Deijraiiv}, 23 Wend. 342; Wood v. Hitclicoctc, 20 Id. 47; Eddy v. 0' 1 1 arc, 14 Id. 221; A'o.se v. Duncan, 49"liid. 2r.9; Flake v. Nuse, 61 'J'ex. 98; Tamp/dn-i v. Bade, 11 Neb. 147. If the creditor accepts the conditional tender, he is presumed to have acquiesced in the con- ditions: Hall V. ITohlen, 116 Mass. 172, 176; Adams v. Helm, 55 Mo. 4GS, 471. Tlie f>frer of performance upon condition of the surrender of a receipt is valid: See sec. 1499, iiifr'i; Storey v. Krewsoit, 55 Ind. 397; or upoa. the perfonuoiice uf a uuuditiou, precedent: Sec. 1498. 1495. Ability and willingness essential. Sec. 1495. An offer of performance is of no effect if the person making it ia not able and willing to perform according to the offer. So also Englander v. Rogers, 41 Cal. 420. 285 |§ 1490-1503 OBLIGATIONS IN GENERAL. Prv. HI, Paet I, 1496. Production of (king to be delivered not necessary. Sec. 149G. The thing to be delivered, if any, need not in any case be actually produced upon an offer of performance unless the offer is accepted. See Englander v. Sogers, 41 Cal. 420. 1497. Thing offered to he kept separate. Sec. 1497. A thing, when offered by way of performance, must not be mixed with other things from which it cannot be separated immediately and without difficulty. Vendor of personalty must put In coudi- Crocker, 62 N. Y. 151; Chirli v. lidlxr, 11 Met. tlon for delivery: Sec. 175;i, fioxt. 186; Dnocav. Lorkliart, 1 Tex. 535; Leballisler S3paration of articles. — The articles ten- v. Xash, 24 Mo. 316; GUman v. Moore, 14 Vt. dereil must be separated and set a[)art from 45; Bates v. CkurchiU, 32 Me. 31. other articles of the same kind: Croninger v. 1498. Performance of condition precedent. Sec. 1498. When a debtor is entitled to the performance of a condition pre- cedent to or concurrent with performance on his part, he may make his offer to depend upon the due performance of such condition. Tender upon condition, on wliich the Conditions precedent: See antet sec 1439, debtor has a right to insist, does not vitiate and note, the tender: Wheelock v. Tanner, 39 N. Y. 4S1. .1499. Written receipts. Sec. 1499. A debtor has a right to require from his creditor a written receipt /for any property delivered in performance of his obligation. So also Code Civ. Proc., sec. 2075. Wood v. Tllf.chcock, 20 Wend. 47; Sanfnrd v. "This is a new provision:" Commissioners' Bidkley, 30 Conn. 344; Thayer y. Brarkett, 12 •note. Mass. 450; IloUon v. Drown, 18 Vt. 224. Demanding a receipt as a condition of per- '1 he rule of the section is recognized in forniance vitiates the tender, as a general rule: Storey v. Krewson, 55 Ind. 307. .1500, Extinction of pecuniary obligation. Sec 1500. An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor, in some bank of deposit within this state of good repute, and notice thereof is given to the creditor. "This is contrary to the former la'wupon been the law, in substance, in Louisiana and this subject, whicli made a tendt-r operative France. It would seem to be all that creditors only so far as to stop interest. The same rule can reasonably ask. Tlie common law compels has been applied to obligations for the ilelivery a debtor to keei> the money whicli he owes at of deeds and other instruments: Z^'-oo^-'t//* /ia/i^ his own risk. This is oltfu an inconvpuience, y. Deijraiiw, 23 Wend. 312; but this has been and soinetiuies a positive loss to him: See note -wisely overruled: Des Arta y. Ij('0 id. Tender, •whether discharges Ifen: See CjO; l\or!ri<]hl y. Cwlij. 21 N. Y. 3iJG; Wood- Pierre v. Caxiro, 14 Cal. 530; U immtlmntin v. rvffv. Trapnall, 12 Ark. 040; Ilayfs v. Thorn, FUzpa'rirJ:, 50 M. 050. 28 N. II. 380. Tender kept good entitles tlie Requisites of a valid tender: See an arti- pluiutiffto judgment for the amount tendered, cle by J. H. Lind, in 17 Am. Law Reg. 745. and the defendant judgment for his costs: Effect of offer in ■writing is the same as C'urin- V. AfiadiP, 25 (_'al. 502. tender: See Code Civ. Proc, sec. 2074. Tender transfers title: See sec. 1502, supra. 1505. Creditor's retention of thing which he refuses to accept. Skc. 1o05. If anything is given to a creditor by way of performance whicli he refuses to accept as such, he is not bound to return it without demand; but if he retains it, he is a gratuitous depositary thereof. Gratultoua depositary: See sees. 1844, post, et seq. CHAPTEU m. PREVENTION OF PERFORMANCE OR OFFER, 1511. What excuses performance, etc. Skc. 1511. The want of performance of an obligation, or of an offer of per- formance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stijDU- lation that this shall not be an excuse; 2. "When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or, 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time. Want of performance escoused. — Pre- •would have received upon a fall performance: venlion of performance by one ]>ar(y seems Cox v. McLawjhlin, 52 Id. £91. to be regarded by the code in snine in- Prevention by one party excuses performance Btances as equivalent to performance as to the by the other: Ket'hum v. ZeilsdorJ', 2G Wis. otlier; See sec. 1512, infrt. In Wolf v. blG; United States v. Peck, \02 \J. H. Gi; Kinga- Marsh, 54 Cal. 228, the debtor by his act made leij v. Brooklyn, 78 N. Y. 200, 212; I/awley v. it impossible for the contingency to happen .5/7)i7/(,45 Ind. 183,202; Di'ld'-n v.Woodmansfe, njx)u which his promise to pay depcndeil, 81 111. 25; 2 Benjamin on Sales, 5th Am. ed.. There his promise was maile absolute. Where 743, in note. Want of performance whicli was a contractor agreed to do work under a contract brought about by the act of the party enti- providing for the payment of money to him in tied to performance cannot be complained of: installments, the mere failure to pay these in- IIou;ih/on v. .Stele, 58 Cal. 421; Tucker v. Ed' ■tallments does not entitle the contractor to tc^rn/.s, 2 West Coast liep. 400 (Col.), abandon the work and sue for the benefits he Subd. 2. See the maxiin, section 3526, 287 81 1512-lSa OBLIGATIONS IN GENERAL. [Drv. IH, 1'akt I, " No man is responsible for that which no man God: PolacJc v, Pioche, 35 Cal. 416. See th« can control." meaning of this expression discussed in Whart, Act of God. — Those acta are to be regarded on Neg., sees. 114, 553; 1 Whart. ou Contracts, in a legal sense as the acts of God which do not sees. 303 et seq. happen through human agency, snch as storms, Pul die enemy. — Who is, and what interfer- liglitiiings, tempests. The elements are the ence will excuse performance: See 1 Whart. on means through which God acts, and "damages Contracts, sees. 319 et seq. by the elements " are damages by the act of 1512. Performance when prevented by creditor. Sec. 1512. If the performance of an obligation be prevented by tbe creditor, the debtor is entitled to all the benefits which he would have obtained if it had been performed by both parties. [Amendment, approved March 30, 1874; Am,end' merits 1873-4, 240; took effect July 1, 1874.] Prevention by creditor: See supra, note to sec. 1511. 1513. Dissuasion by creditor. Section 151.3 was repealed by act approved March 30, 1874; Amendments 1873-4, 240; took eflfect July 1, 1874. 1514. Same. Sec. 1514. If the performance of an obligation is prevented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to which he would have been entitled upon full performance, according to the benefit which the creditor receives from the actual performance. 1515. Effect of refusal to accept performance before q^er. Sec. 1515. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance ia actually due, he gives notice to the debtor of his willingness to accept it. See Mescrole v. Archer, 3 Bosw. 376-382; Refusal to perform entitles the other party North V. Pepper, 21 Wend. C38; Travers v. to enforce the obligation without performanca Ualstead, 23 Id. 06. on his part: See sec. 1440, ante. CHAPTER IV. ACCORD AND SATISFACTION. 1521. Accord, what. Sec. 1521. An accord is an agreement to accept, in extinction of an obliga- tion, something different from or less than that to which the person agreeing to accept is entitled. [Amendment, approved March 30, 1874; Amendments 1873-4, 240; took effect July 1, 1874.] Accord emd satisfaction.— Formerly part hard v. Lirjhte, 13 Abb. Pr. 101; Ifarri'^on v. payment of a money demand without a release Wilcox, 2 Johns. 448; Dcderick v. Leman, 9 Id. under seal did not work a release. This con- 333; Scoll v. I/nnt, 2 How. Pr. 58; Down v. dition of the law and its present aspect is Hatcher, 10 Ad. & El. 121; T/iomnn v. thus stated in the commissioners' note to sec. y/^a^Aorj;, 2 Barn. & Cress. 477; Fitcliw. Sutton, 15J4, post: 5 East, 2:)0; Cumber v. Wane, 1 Stra. 426. This " Before the passage of the act of 1863 (see rule of the common law was not founded upoa Stats. 1868, 31), the rule of law was tliat natural justice, nor can it be supported upon payment of an amount less than that of a any other than technical grounds. An agree- liquidated debt then payable was not a satis- ment to accept a barrel of flour in satisfaction faction thereof, though accepted as such: Dp- of a debt of one thousand dollars was valid, land V. Ilcl't, 27 Csxl. Gl\; P/emmiv. McVahlU, and if the flour was delivered tbe debt was 21 Id. 122; but see also (ra?'a« v. Annan, L. satisfied. So a relea&e under seal, without any etseq. Object of the contract: S-e sec. 1595. " Thtt word 'object' has been selected, after much reflection, as a more correct word for the purpose liere intended, than ' subject ' or * sub- ject-matter:'" Note in draught oif code. Unlawful contracts: See sec. 16G7, post. Consideration: See sees. 1605 et seq., />oa<. 291 §§ 1556-1567 CONTRACTS. [Div. Ill, Paet n, CHAPTER II. PARTIES. 1556. Who may contract. Sec. 1556. All persons are capable of contracting-, except minora, persons of unsound mind, and persons deprived of civil rights. Contracts of infants: See an/!e, sees. :i3etseq. Contracts of married 'women: See ante, Contracts of persons of unsound mind: sees. 158, 159, 107. See ante, sees. 38 et seq. 1557. URnors, etc. Sec 1557. Minors and persons of unsound mind have only such capacity as is defined by Part I. of Division First of this code. See ante, sees. 33 et seq. 1558. Identification of parties necessary. Sec 1558. It is essential to the validity of a contract, not only that the par- ties should exist, but that it should be possible to identify them. 1559. When contract for benefit of third person may he enforced. Sec 1539. 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. One in vrhose favor a contract is made 12 Iil. 300; see also Pomeroy on Remedies, sec. may maintain au action tliereon. This is now 139, and the colleetion of cases in 2 Wlmrt. on tlie generally accepted doctrine iu America: Cont., sees. 785 et seq. , and notes. Alasoii V. Hall, 30 Ala. COl; Burroics v. Hob- For a consideration of the principles an- eri'son, 7 lov^a, J 01; Anlhovy v. lltrmau, 14 nonnced in the above section, see the discus- Kan. 407; Hobhlns v. Ayres, 10 Mo. 542; sion in McLaren v. U ntchuinon, 22 Cal. 187, Jtu-kxon V. Smith, 52 N. H. 11; Jonlin v. N. J. and the cases there referred to — wliero the doc- Car S/>riiifj Co., 3G N. J. L. 145; JJel. e Frnnery v. Austin, Id. 380; 1 Wiiart on Cont., sec. 149. £jubd. 3. Using unlawful process to es- tort consent avoids the contract: /?/'haw, 2 Watts, 1G7; I iackett V. K'nuj, 6 Allen, 58; Ureih v. Ulanrh- anl, 22 Id. ?,'.)3;' IVallbridric v. A mold, 21 Id. 424. Tlic unlawful imju-isonment of an adopted chiKl as ilurcss is said liy the code connnission- ers to be a " new provision, but in accordance with the title on adoption: " See ante, sees. 221 et sef). Subd. 2. Unlawful detention of property. The rule of the code is very broad. In Knglaiul the rule seems to be that money paid to release goods uidawfully detained njay be recovered, but that a. promise made for the same purpose caimot be iuvalidated: Artte v. Backhouse, 3 1570. Mnmce, ivhat. Sec. 1570. Menace consists in a threat: 1. Of such duress as is specified in subdirisions one and three of the last section; 2. Of unlawful and violent injury to the person or property of any such per- son as is specified in the last section; or, 3. Of injury to the character of any such person. l\;:ena cc— Threats of duress.— Threatening C«>nu. 221 ; Sinrjer Co. v. Rawton, 50 Iowa, G.34; the prciinisor with a criminal prosecution avoids the contract. Lac. Abr. , tit. Duress, A, states: "^ly Lord Coke says that for menaces in four instances a man may avoid his own act: 1. For fear of life; 2. For fear of loss of member; 3. Of mayliem; 4. Of imprisonment." Support- ii'g tliis as.sertion, see Wldtjidd v. Loiuj/tl/oir, l.'i Me. 1-10; Edvanlii v. Jiniid/(\i/, 3 Am. Dec. G02; Mi-adoii-f v. Smith, 7 [red. Eq. 7; Fo'<>! v. irddr<':h. 10 Allen, 70; U'aUbrhl;/'' v.Aruo/d, 21 Conn. 424; Brawn v. Perk. 2 \\'is. 277; Schulz V. Cdhrr/son, 40 Id. 313; S. C, 49 Id. 122. Threatening tlie contraciing party with ini- prisomnent of her husband is menace: E'dic v. SUiuiuon, 20 N. Y. 9; McMahoa v. Smith, 47 and see Smith v. lioirley, 00 Barb. 5J2: Coinjf ton V. Bunk, 90 III. 301. S.>, of a tlne.it to prosecute the mortgagor's son for forgery: llairlfi V. C'ormrd>i, 131 Mass. 51. Subd. 2. Threats of injury to person or property: See the note in E" ell's Lead. Cas. 772; I Whart. on Cent., sees. 144 et scip Subd. 3. Threats of injury to character. "This species of Llireat is not usually included in the (lefinition of dui'<;ss, and was doubilesa not so treated under the old common law, when a libeler could be made to rot in jail until he paid damages, while neither the jiuignienb creditor nor any one else was bound to find lutn food or drink: Dive v. Jlaniuyham, 1 PlowJ, §§ 1571, 1572 CONTRACTS. [Drv. Ill, Part II. threatening letters for the purpose of extorting money, and that which is thus treateeity or character, and it was on this grouml that such injuries were not regarded as duress: IJac. Abr., tit. Duress, A. Tlie remedy now existing is less effective, even if money Mere considered equivalent to character. By Btafcute, it is now a criminal offense to send 1571. Fraud, actual or constructive. Sec. 1571. Fraud is either actual or constructive. 1572. Actual fraud, what. Sec. 1572. Actual fraud, witliin the meanings of this chapter, consists in any of the following acts committed by a party to the contract, or with his conniv- ance, 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 wan-anted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge-or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive. Actual fraud. — "Within the meaning of this chapter." This defaiition is not to be con- sidered as covering all varieties of fraud, but only such fraud as vitiates the consent of the party to a contract: Commissioners' observa- tion. In Brady v. Bartlett, 50 Cal. .350, 305, it is also said, referring to sections 1572 and 1573, that "these definitions are very broad, but whether they embrace every species of fraud, it would be impossible a priori to say." The commissioners say further, that this section inclines to the view us more sound that no pe- culiar "artlBce" is necessary in addition to the intent to constitute fraud, citing KiiKj v. Phi lip.t, 8 Bosw. G03; llenneqain v. Nciylor, 24 N. Y. 139. For decisions di.scussing the (ques- tions of "intent" as an element of fraud, see Commissioners v. Yonnrjpr, 29 Cal. 172; Visrher V. WclMcr, 8 Id. 109; Colim v. Mulford, 15 Id. 60; Alvarez v. Drunnaii. 7 Id. 503. Subd. 1. ■Willful misrepresentation. — "The word 'suggestion' is useil instead of 'as- sertion,' because even a hint, or a true report of what others may have untruly said, ia a fraud, when conveying an impression which the party knows to bj false, and made for that purpose: See Jlaiqht v. Ilcn/t, 19 N. Y. 404; IV lute v. Merrill, 7 Id. 352^; Giford v. Carvill, 29 Cal. 589; also see De Leon v. Ilvjuera, 15 Id. 483; Rliea V. Snrryhnp, 39 Id. 579. As to what constitutes actual fraud, see the able opinion of Justice Wallace in Rnneman tk Ilowland v. Canovan y members of a family: Todd v. Urore, S3 Md. ISS; Martin v. Marlin, 1 IIei.sk. Git; R'-d l)V an attorney over his client: Urceufiild's 'fldnto, !4 Pa. St. 4S0; S. C, 24 Id. 232; White'- head V. Kennedy, 69 N. Y. 402; by a trustee over the })encficiary: DiUer v. JlruhaLrr, frZ Pa. St. 403: Spi^itier's App^cd, 80 Id. 332; Parker v. N irlcpr-ion , 112 Mass. 19.j; Lewin on Trusts aud Trustees, 337. See the terms " contideiital rela- tion " aud "fiduciary relation" explained in Jiobins V. Hope, 57 Cal. 493, and held not to apply to case of alleged " unlimited confidence," not founded in any other relationship than that of first cousin. Plaading undue inSuenoe to vitiate a deed is considered in Goodwin v. Goodwin, 59 Cal. 5G0. Undue influence vitiating will: See sec. 1272. a:ifr. Subd. 2. "Weakness of mind. — As an illus- lother's weakness of mind; or, unfair advantao'e of another's necessi- tration of undue influence within the meaning of tiiis subdivision, consult Moore v. Moore, 56 Cal. 89, where a widow's brothors-iii-law took advantage of the uu'utal prostriition occa.iioned by the Sudden death of the husband to induce her to execute deedsof her interest in his estate. Tiiat i;uposition or undue influence will be inferred from great mental weakness, occa- sioned by illness, when accompanied by gro?3S inade(]uacy of consideration, see Allore v. Je,rril, 94 "U. 8. 50d. ^Jere uicntal disparity in the parties con- tracting is not of itself sulficieiit to distnrl) a cortract: 1 Wliart. on Cont., sees. 103, 157. But where fraud is resorted to by a party in obtaining a contract in his favor, proof of a comparatively slight degree of mental imbe- cility is re<]uii-ed to set aside a coiitract induced by such inllnencc: Id., sec. 15S. Undue inOuenoe as affeoting validity of "wills: See n)itc, sec. 1272, aud note. Rescission of contracts; S-e />o.s«, sec. 1GS9. The subject of undue influence generally is discussed in the recent text-book. 1 Whart. on Cont., sec. 157, where the various classes made in the code are illustrated by citations of adjudications, and tlie question who can take advantage of such impositions to set aside the contract is considered. 1576. 3lLsfake, xohat. Sec. 1576. Mistake may be either of fact or law. Mistake — "As to mistake of fact there is no question. Mistake of law has been often de- clared (and in fact well settled in this state) to be no gnjund for relief at law or in ecpiity: Smith V. McDourji-l, 2 Cal. 580; Gro^s v. Par- roit, 10 Id. 143; Kenyan v. U'el/y, 20 Id. 037; Parsons v. Fnirbant-t, 22 Id. 343; Bart v. Wil- son, 28 Id. 632; see Champlin v. Laylin, 13 Wend. 417; Siorrb v. Parker, G Johns. Ch. IGG; Lyon V. Richmond, 2 Id. 61; Kent v. Manches- ter, 29 Barb. 595; Story's Eq. Jur., sees. 111- 139. The contrary view has l)een taken by judges of high standing: See Champlin v. Lay- tin, 18 Wend. 422; Man if v. Beekinan Iron Co., 9 Paige, 188; Stone v. God/rei/, 5 De G. M. & G. 90; Brourjkton v. Ilatt, 3 De G. & J. 501; JUvants V. Strode, 11 Ohitance in the course of trausniis.sion to the proposer, in conformity to the last section. Aoceptauoe by letter: .See discussion <>f edition of 1 Addison on Con t. 42, " This sec- this sui)^cct ill I W'hart. on Cont , sees. 17 et tion recognizes the rulo that consent is com- Beq. ; and a valuable note by Abbott in his plete as soou as a letter of acce^jtauce is put 297 §§ 1584-15S3 CONTRACTS. [Tuv. Ill, Part H, into the post-office: Mnrtierx. Frith, G Weiul. Co., 5 Pa. St. 339; Aver'iU v. nedje, 12 Conn. 10:1; rassar v. Camp, 1 i N. Y. 441; Diinlop v. 4.1G; Bcrbinth v. Chcever, 21 M. II. 41; Duncan HiijrjiitK,] II. L. Gas. 3S1; Tcu/he v. Mo-chanis' v. Topham, 8 C. B. 22.'). To tlie contrary is /*'«;v' ///.s-., 9 How. 390; Eiiason v. lleuxhaio, OUlc^pic v. Edmonnton, 11 HLiin;)h. 5j3:" Code 4 Wheut. 22S; uamiUon v. Lycoming Ins, com luissiouers' note, 1584. Acrcpfance by performance of conditions. Sec. 1584. Performance of the conditions of a proposal, or the acceptance of the conhiideration offered with a proposal, is an acceptance of the proposal. Acceptance by performance of condi- 743; Lungstrass v. German Ins. Co., 43 Mo. tions. — Tiiu acceptance of au offer may be sig- 200. nilicd l>y pcfformance alone, especially where Non-acceptance by person to whom the notice of acceptance is not re(inireil: PaUon proposal is made cannot bti taken advantage of V. J/as^ngfr, 03 I'a. St. 311, 314; Cooper v. by the proposer's agent to iv^e tlic con Lract for Altimus, 02 Id. 4SG; Crook v. Cowan, 04 N. C. his own beuelit: Wiard v. Brown, 3J Cal. 194. 1585. Acceptance must he absolute. Sec. 1585. An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character Avhich the proposer can separate from the rest, and which will conclude the person accepting. A qualified acceptance is a new proposal. Acceptance must be unconditional: and the note by Abbott in bis edition of 1 Ad» See a statement of tliis same rule in 1 Benja- dison on Cont. 37. min on Sales, 4th Am. ed., sec. 38, and note; 1588. Revocation of proposal. Sec, 158G. A proposal may be revoked at any time before its acceptance is communicated to the proposer, but not afterwards. Revoldng proposal. — That a proposal may Cont., sec. 41; and Addison on Cont and Ben« by rctiacted before acceptance, see 1 Wliart. on jamiu on Sales, vbi supra. 1587. Revocation, how made. Sec. 1587. A proposal is revoked: 1. By the communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections fifteen hundred and eighty-one and fifteen hundred and eighty-three, before his acceptance has been communicated to the former; 2. By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time without communica- tion of the acceptance; 3. By the failure of the acceptor to fulfill n. condition precedent to accept-; ance; or, 4. By the death or insanity of the proposer. Manner of revoldng proposal. —Subd. 1. time, considering all the circnmstances, works To revoke by mail an oli'cr miide by letter, it is a relraction: Chicago etc. /'. /'. v. Dane, 4;> N. not suiricieiit to mail such revocation before Y. 240; ./add v. Dai/, HO low a, 247; Mr'iny. the notiiication of acceptance is received or Bluck, 21 Ala. 721; Maxle// v. Maxley, 2 Aleto.., mailed; the letter of revocation docs not take (Ky.)3)9. etl'ect until it has been received: See Abbott's Subd. 4. Death or insanity of tiio pi-oposer note, 1 Adlison on Cont. 43. See t'.ie articles before acceptance revokes t!io projiosid: j'ratt above referred to in note to sec. loS3. v. Triistie-f, 93 III. 473; 'J'he I^(d > A'to, Daveis, Subd. 2. If no time for acceptance be pre- 343; sec Browne v. MrDo ndd, 129 Masia. 06, scribed, a failure tj accept within a reasonable and Scruggs v. Alexander, 72 Ido. 134. 1583. Ratification of contract void fir want of consent. Sec, 1588. A contract which is voidable solely for want of due consent may be ratified by a subsequent consent. 1589. Assumption of obligniion by acceptance of benefits. Sec 1589. A voluntaiy acceptance of the bsnefit of a transaction is equivalent to a consent to all the obligations arising ivoin it, so far as the factii are kuowu, or ought to be known, to the person accepting. 29S Title I, Chaf. V.] CONSIDERATION. §§ 1595-1605 CHAPTER IV. OBJECT OF A CONTRACT. 1595. Object, what. Sec. 1505. The object of a contrixct is the thing which it is agreed, on the part of the party receiving the consideration, to do or not to do. Object of coatraot: See the statement of Unlawfal contraots: See next section, and the comiiiissioufr.s in regaril to the adoption of sees. lGu7 et seq., jiost. the term "object," in tlie note to section looO. Uulavyful coudidons: See ante, sec 1441. 1596. It('qiiliiUf's of object. Sec. 159G. 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. See po.s^ sees. 1GG7 et seq. chapter 5 [sees. 1G05 et seq.] of this title:" •'For a delinitiou of the word 'lawful,' see Comniissiouera' reference. 1597. Inipossihil'dy, ivhat. Sec. 1597. Everything is deemed possible except that which is impossible in the nature of things. 1593. When contract wholbj void. Sec. 1598. Where a contract has but a single object, and sucb object is unlawful, whether in whole or in part, or wholly impossible of loerforinance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void. 1593. When contract partialhj void. Sec 1599. Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter, aud valid as to the rest. Part good aud part void: See as an illus- Norris v. Harris^ 15 Id. 25G; ALore v. Bennet, traticu, (I'raiificr v. Orhjiuai Empire M. d: M. 40 Id. 254. Co., 59 Cal. 078; JacLou v. Shawl, 20 Id. 272; CHAPTER Y. CONSIDERATION. 1605. Good consideration, what. Sec. 1G05. Any benefit conferred, or agreed to be conferred, upon the prom- isor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other thxin such a» he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise. Consideratiou. — The following citations in which the promisor is not lawfully entitled:* explanation of various clauses of the above sec- Sue Adams v. llastinia, G Cal. 12, J." The fol- tion arc made by thecodecomraissioners: " 'Any lowing cases afford illustration of what has beea benefit coujerred: ' Comstockw Breed, 12 Cal. passed upon by the supreme court of California. 2SG; Johiitiou v. Til an, 2 Hill, GOG; Oat'ey v. as sufficient consideration for a promise: A chat- Boormaii, 27 Wenil. 588; see llamillon ('ol!c;ie tel of any value to either party: Cl'jf rd v. Car- V. Stewart, I N. Y. 5S1; Palmer \\ North,, iij vill, 29 Cal. 589; assuming tlic liability of a Barb. 282. It is immaterial whether the benefit surety on an appeal bond: ll(jt>l>-<\\ /.»".//', 23 IcL is small or great: llaKjkl v. Brooks, 10 Ad. & 59G; a jjromise by a surety or iiulorscr to tha Kl. .309; JohiiHton v. NiehoIlK, 1 C. B. 251. 'Or principal to make the debt his own: Gladwin v. agreed to be conferred:' //oin/hlalinifv. Randen, Garrison, 13 Id. 330; subscription to promote a 25 Barb. 21; Sat/e v. I/aznrd, 6 Id. 179; Sea- connnon object: Christian Colte; promi.se "to wait a wiiile" is not suiBcient: Sid well V. Epan.% 21 Am. Dec. SS7. Yet the agreement need not be for a definite term: See , 1606. IIow far legal or moral obligation is a good consideration. Sec. IGOG. Au existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or preju- dice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no f urthei', or other- wise. the note by Abbott in his edition of 1 Addi- son oil Cont. 11, wliere tlie {general sul)jcct of forbearance aa a consideration is discussed. Promise to extend time of payment of note ia consideration of part payment canu(jt bo en- forced: Lienintj v. Gould, 13 Cal. 598; see il/c- Cann v. Lewis, 9 Id. 240. Coinjiroiniseti: See, with regard to accord and satisfaction, ante, sec. loJi. Where the rights of the parties are di>ul)iful, ]iromise of part payment in consideration of setlleuient is good: Ricoudlat v. Sansccaiii., 32 C'al. .■i7G; Grans v. Hunter, 23 N. Y. 3^9; Smith v. SmUh, 3J Ga. 134; Allen v. Prater, 3D Ala. 413. OJar of revT^ard by advarti^^emeat, and right of person performing? service to recover: See lijer v. Storkwell, 14 Cal. 134, and the note in 1 Ail.lison on Cont. 24. Pr3-G:2lstin2 d3b!; is a sniHcient considera- tion: Davis V. Piissell, 52 Oal. Gil; Frej/ v. Clitford, 41 Id. 335; Naih'e v. Li/nian, 14 Id. 150; Robinson v. Smith, Id. 94; Payne v. Bfns- ley, 8 Id. 2G0; Heath v. Slluerthorii L. M. Co., 39 Wis. 14G. Moral obli^atdon. — "The common law does not recognize mor.d obligations, except in a few cases, as sulHcient to sustain a ])romise: Whip- ley V. Dcicey, 8 Cal. 30; Nash v. Russell, 5 Barb. 550; G '-r v. Archer, 2 Id. 420; li^atLins V. JIaU.'ad, 2 Sandf. 311; EMe v. Judson, 24 Wend. 97; Smith v. Ware, 13 Johns. 257; Beau- mont V. Reev.', 8 Q. B. 4S3; E istwood v. Kenyan, 11 Ad. & El. 438. But see to the contrary: Doty V. Broivii, 14 Johns. 381; Lee v. Mw/'je- ridje, 5 Taunt. 33. The autliorities, however, entirely fail tn establish any satisfactory prin- ciple upon wliich to distinguish between the dilfereut species of moral obligations. Thus, in Bunn V. Wiiithrop, 1 Jolins. Ch. 329, past Beduction was lield a good consideration to support a grant. In Beaumont v. Reeve, 8 Q. B. 433, the same consideration was held insulh- cient lo sup[)ort a promise. In Gouldintj v. Davidson, 28 Barb. 438, it is said that there must have been, at some time, an actual legal obligation. Yet in JHce v. Welliny, 5 Wend. 59'>, and Early v. Mahon, 19 Johns. 147, the original contract was usurious, and therefore void from tiie beginning. The same may be said of ]-)ro:iiises to pay debts contracted in infancy, which are lield valid. Gonldimj v. Daoidsoii, was reversed: 20 N. Y. 004. The rule stated in tlie text seems to be just, and to be, on the wliole, as easily reconcilable with 1607. Consideration lawful. Sec. 1G07. The consideration of a contractmust be lawful within the meaning of section sixteen hundred and sixtj'-seven. Illegal considsration: See unlawful contracts, sec. 1GG7, post. 1608. EJhd of its illegality. Sec. 1GG8. If any part of a single consideration for one or more objects, or of BBveral considerations for a single object, ia unlawful, the entire contract is void. 300 the authorities as any other that can be devised. ' To an extent corresponding with the extent of tlie obligation, but no furUier or otherwise:* See Phef.i^'placev. Sterre, 2 Joiins. 442; Ro^corlo V. Thomas, 3 Q. B. 234; Hopkins v. Lmjan, 5 Mee. & W. 247; Knye v. D niton, 8 Scott N. R. 49"), 502; S. C, Ray v. Datlon, 7 Man. & G. 807; Elderton v. Emmens, G C. B. 100; 13 Id. 4J5:" Commissioners' note. In adilitiou to what is alio ve stated, reference may be had to the following authorities in sup- port iif the rule that to make a m')ral obligation a sufficient consideration for a promise it must be founded upon some prior obligation: Cook v. Bradliy, 7 Conn. 57; S. C, 18 Am. Dec. 79; Loomis V. Xewhad, 15 Pick. I.i9; JIaw'ey v. Farrar, 1 Vt. 420. Illustration of the same principle may be found ia the cases turning u[)on the suIHcieney of a promise to pay a debt discharged in bankruptcy: See the note to Eiirnest v. Parke, 27 Am. Dec. 280; sue also 1 Addison on Cont. 10, Abbott's note. The moral obligation resting upon a woman to make good a promise given during coverttire is not a suliieient consideration to uphol I an affirma- tion of the promise mide after the di.sabdity ceases: Musik v. Dod-oa, 73 Mo. 0J4, where the promise was to an attorney for his fee oa procuring a divorce. Title I, Chap. V.] CONSIDERATION. §§ 1609-1615 " This principle is deducible from all the Barb. 474; TPose v. Trunx, 21 I<1. 301 ; Pppper casrs talcLU tos^cLlier, though not to l)e loiiiid v. ilaiijlil, 20 Id. 429; Barton v. Port Jar kxnn tlm-s stateil in any one case. Thus, there is no Phiiik Ihmd, 17 Id. 397; Uvrl v. Plart>, 8 Cow, doubt that if t'.i' consideration is single, or in 431; see iiroirn v. Brown, 34 Darl). 533; Porter other words indivisible, its partial illegality is v. Ilaoi'iis, 37 Id. 343. The limitations of the fatal to the contract: See Valentine v. Sffirttrt, rules are conformable to the principle of sees. 15 Cal. 3S7: IJasL-f/l v. ilrllenrii, 4 Id. 411; 773, 779:" Comniissioners' note. Norrla v. JIurru, 15 Id. 226; MilU v. ilillg, 3li 1609. CovHideratlon executed or executory. Sec. 1G09, A consideration may be executed or executory, in wbole or in part. In so far as it is executory, it is subject to the provisions of Chapter IV. of this title. 1610. Executory consideration. Sec. IGIO. When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining^ it. It may be left to the decision of a third person, or regulated by any specified standard. 1611. Hoio ascertained. Sec. IGll. When a contract does not determine the amount of the consid- eration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth. See the following sections and notes, 1612. Eff'eci of impossibility of ascertaining consideration. Sec. 1G12. 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. 1613. Same. Sec. 1G13. Where a contract provides an exclusive method by which its con- sideration is to be ascertained, which method appears possible on its face, but in fact is, or becomes, impossible of execution, such provision only is void. 1614. Written iiistncment presumptive evidence of consideration. Sec 1G14. A written instrument is presumptive evidence of a consideration. ■Writing imports consideration: Pifj^-i v. sideration of a sealed bond may be impeached: Waldo, 2 Cal. 4Sr>: Stewart v. Slntt, 10 Id. 372; Conutork v. Breed, 12 Id. 28G. Syyar v. Want, 20 Id. 659. It is only prcsump- Reoital of a nominal oousideratfon may live, however, and may be iiiquireil into: FlJier be controlled in equity and the instrument an- V. Salninv, 1 Id. 413; Colea v. S'>ittsb>j, 21 Id. nulled: Wkinl v. Brown, 59 Cal. 194. 47; Bnineit \. Sulomon, 6 Id. 131. At cum- Distiuotion between sealed and unsealed mon law a want of consideration could not be instruments abolished: See itost, sec. 1G29. pleaded to a suit on a scaled instrument, the Repeating consideration — In drawing in- jiresuniption of consideration being conclusive, strnments of any kind where a consideration The law of this state modified the rule so far is essential, it is not necessary, nor is it the as to allou- it to \>q rebutted in the answer: practice, to repeat the consideration upon the McCartu v. Beach, 10 Id. 401; Wdls v. Kempt, insertion of every several promise or covenant: 17 Id. 98. The unmeaning distinction between the mention of it once is generally considered sealeil and unsealed instrument being o/it, sec. 1798. See Sheldon's Am. ed. of Bateman on Ace- tions, sees. 143 et seq., for valuable informa- tion on this branch of tlie statute of frauds. Subd. 5. Agent, how appointed: See 8upra\n this note, and poxt, sec. 1741. and note. Subd. 6. Employing real estate agent. In McCarthy v. Loupe, ti2 Cal. 299, an action was brou^;ht to recover the value of services ren- dered by a real estate broker in cITcctiug a sale of land where there was no sucli writing as is specilied in this section. The right to recover See sec. 2793, pod. The change from the original statuteof frauds, 29 Car. 1., c. 3, sec. 4, with respect to the signature, from the word "signed" to "sub- scribed" has removed much of the perplexity in detei mining Nvhat is a signing, and made it plain that to conform to tlie altered require- mento the signature is to be placed at the foot of the memorandum: Merritt v. Claxon, 12 Johns. 102; Connnoinvsallti v. Bay, 3 Gray, 447; Lenifd v. IVauuemache, 9 Allen, 412; JJoard- tnanw Spooner, 13 Id. 353. Tiie statute lequires that only the party to be charged should subscribe; therefore, so far as the Statute of frauds is concerned, both par- ties need not subscribe: Rulenberg v. Main, 47 Cal. 213; ^csv/a'/ v. Holt, 37 Id. 250; Va-^midt V. Edwards, 43 II. 458; Ballard v. Wa'ker, 3 Johns. Cas. GO; Ilfjet v. Merritt, 2 Cai. 117; Justice V. Lau(i, 42 N. Y. 493; Estes v. Fitrhuq, 59 111. 302; 'Oomjlass v. Spexrs, 2 Nott '& M. 2G7; Old Colony R. II. v. Evans, G Gr.ay, 25; Barnard v. Lee, 97 Mass. 92; Tripj) v. Bishop, 53 Pa. t^t. 428. "The names c.f all the parties must be stated in the memorandum: " Commissioners' note, citing WiWum^x. Lake, 2 El. & El. .349. The subscribing may be done by the agent of tho i>.:rty to be charged. But tlie statute ex- pressly requires, in subdivision 5, that t!ie au- thoriiy to subscribe the principal's nrmc to agreements for the leasing and sale of real prop- erty must be in writing. And see po4, sec. 174 1 . In the absence of such statutory require- ment, the agent's authority in such cases may be given verbal'.j": Ratenberg v. Main, 47 Cal. 213. Tiie authority to execute the conveyance must be in writing: Hoen v. Simons, 1 Id. 119; Tohl<'r V. Fol-om, Id. 207; Videauv. Griffin, 21 Id. 3S9; McLnri-n v. Hutchinson, 22 Id. 187; Bayles V. Bajffr, 22 Id. 575; Millard v. I lath- awai/, 27 I<1 119; so also as to a lease : Folsom V, Perrin, 2 Id. 003. With respect to the contents of the memo- randum. Judge Sanderson, in Joseph v. Holt, 37 Cal. 250, succinctly states the essential elements in conformity to the general acceptation, lie says, iu substance, that a note or memorandum Bubacribed by the party to be charged or by his 303 §§ 1625-1637 CONTRACTS. Piv. Ill, Part II, was based on the implied CT-wMm/^siV arising out Sales of personalty: See post, sees. 1739 of the benefit doiived by tlie defendant from etsi.M|. the plaintitrs services. The contention, how- Guaranty: Sec po';,fio:i Delivery of transfers in writins: See, gen- BraiUiiaw, 23 Cal. 5JS; Uarr v. Schroeder, 32 erally, aide, sec. 10J4. Id. 610; radi V. Bunch, 30 Id. 203. 1627. Provisions of chapter on transfeis of real property. Sec. 1G27. The provisions of the chapter on transfers in general, concerning the delivery of grants, absolute and conditional, ajDply to all written contracts. See ante, sees. 1032 et seq. 1628. Corporate seal, how affixed. Sec 1G28. A corj)orate or official seal may be affixed to an instrument by a mere impression upon the paper or other material on which such instrument is written. See Code Civ. Proc, sec. 14; Pol. Code, sec, 14. 1629. Provisions abolishing seals made applicable^ Sec. 1029. All distinctions between sealed and unsealed in.strument3 ate abolished. TITLE III. INTERPRETATION OF CONTRACTS. 1635. Uniformity of interpretation. Sec. 1035. All contracts, whether public or private, are to be interpreted by the same rules, except as otherwise provided by this code. 1636. Contracts, how to be interpreted. Sec. 13GG. A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. Intention of parties. —The intention of botli v. Crandal, 3 1 Id. 334; lia'-ouillat v. Smixevain, parties at tlie time of contracting is to be ascer- 32 M. 370; S-uiiiders v. Clark, 20 M. 200. taiued, and if liwfid, is to govern: C'aUakaiiv. Parol evidence to prove iuteudoa: Seo Stanley, 57 Cal. 470; Reedij v. Sm'dh, 42 Id. Code Civ. Proc, sees. 1855 et seq. 243; Thomp>ion v. AIcKay, 41 Id. 221; Piercy 1637. Intention of parties, how ascertained. Sec. 1G87. For the pui-pose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied. Parol evidence with respect to writinss: See Code Civ. Proc, sees. 1855, 1856, et acq. 304 Tttlk III-l INTERPRETATION OF CONTRACTS. §§ 163S-1642 1638. Intenticm to be ascertained from language. Sec. 1C38. The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. Language of the contract. — Where tho language ot a contract is not ambiguous, the rule ii imperative to follow the language em- ployed in its interjiretation: Ilawleyv. Bruma- giin, 33 Cal. 391. Where a contract has been reduced to writing, the language, if luciil, is the best evidence of the intent: Norton v. Woodruff, 2 N. Y. 339; Buck v. Burl; 18 Id. 333; Drnt v. N. A. Steaimh'ip Co., 49 Id. 390; Wa'rous v. McKir, 54 Tex. Go; Wallcrw Tuck- er, 70111. 527; Robh v. Bancroft, 13 Kan. 123; Jeffrey v. Grant, 37 Me. 236. That language involviug an absurdity may be disregarded, see Frankel v. Sltmy 44 Cal. 1C8. 1639. Interpret a f ion of loritlen contracts. Sec 1369. "When a contract is reduced to writing, the intention of the par- ties is to be ascertained from the writing alone, if posaiblej subject, however, to the other provisions of this title. See note to previous section. See Code Civ. Proc.,, sees. 1855 et seqj see also Parol evidence in construing writings;, post, sec. 1CS9. 1640. Wriiing, ivhen disregarded. Sec 1040. When, through fraud, mistake, or accident, a. written contract' fails to express the real intention of the parties, such intention is to be regarded,, and the erroneous parts of the writing disregarded. "Writins not expressing intention through fraud, aocideat, or mistal^e. — In sucli a case the intention may be ascertained by means of jparol evidence. Thus parol testimony is admis- sible to sliow that through fraud an instrument in wriiing does not express tho intention of the parties: CoileCiv. Proc, sec. 1850; Murray V. Duke, 43 Cal. 044; or that it was procured or influenced by fraud or misrepi-esentation: Meyer V. lluneke, 55 N. Y. 412; McLean v. Cfci/i-, 47 Oa. 24; Grlder v. Clo/don, 27 Ark. 244; Cook v. Moon^ 39 Tex. 255; Burtwrs v. Keran, 24 Gratt. 42. So also mistakes in writing are, under certain circmnsrtances, sus- ceptible of correction by parol: Murrtiy v. Dale, swpra. For a classification of the various oases in which parol evidence has been admitted to vary tho apparent meaning of a written instru- ment — inflict, for a cousidoration of ihc general rule regarding parol evidence in the interpreta- tions of writings — see Chamberlaync's notes to the 7th Am, od. of Best on Ev., sec. 2J9; and see also 2 Ponieruy's Eq. Jur., sees. 857 et seq.; see, further. Code Civ. Proc., sec. 1856. 1641. Effect to he given to every part of contract. Sec 1G41. 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. The whole contract is to be considered in arriving at tlie intention of the parties: Frankel v. Stern, 44 Cal. 104; Brickell v. Batchcld'^r, Q2 Id. 0J3, 0.51. Ail the provisions must bo read together: IlamlUou v. Taylor, 18 N. Y. 358; Ward V. WhUn^-y, 8 Id. 442; h'oxe v. Roberts, 9' Minn. 1 19; Goosey v. Gooaey, 48 Miss. 210; and the various clauses shouUl be read in subordi- nation to the general purpose: Decktr v. Fur- 1642. Several contracts when taken together. Sec 1G42. Saveral contracts relating to the same matters, betwosn tho same parties, and made as parts of substantially one transaction, are to be taken tosrether. niss, 14 N. Y. Gil? and see ivfra, sec. 1050. Words which are wholly inconsistent with th» main intention cf the parties are to be rejected: See iii/ni, soc. 1053; and see sec. 1052, for re- pugnancy in contracts. Tiie design should bo to give effect to all t!ie parts of a contract if possible: Micklc v. Sanchez, 1 Cal. 200; Fi-ankel v. Stern, supra. Several contracts to be taken together. It is a well-recognized rule that several writ- ings torming part of one transaction should be read together: Brickell v. Batchelder, 02 Cal. 023; ImjokUby v. Juan, 12 Id. 504; and Bee Lockicood v. Canfield, 20 Id. 120; IV;-- tan v. McGrrrjor, 23 Id. 339. So also Wrhjht V. Dow/Uuis, 7 N. Y. 504; JIuttemeicr v. Albro, 18 Id. 48; Cknrrk v. Brown, 21 Id. 315; Dean V. Lawhav, 7 Or. 422; Byrne, v. MarsliaU, 44 Ala. 355; Wallis v. Beauchamp, 15 Tex, Civ. Code— 20 303 333. This may be done notwithstanding tho writings were made at erformed deter- mines whatever relates to the performance and operation of the contract, wh^rca^ its forma- tion and the meaning of the parties are settled 306 Title III.] INTERPRETATION OF CONTRACTS. §§ 1647-1653 by the liw of the place where the contract is Confl. L., sees. 401, 418, 433. And an apnli- made: Scifdrfer v. Uiiion Nat. Bank, 91 U. S. cation of the rule to ascertain the meaning of 406. See also tlie discussion of this (juestion, the word "stubhie" in a lease: Callahan v. and criticism of the case last cited, iu Wliart. Stanley, 57 Cal. 476. 1647. Contracts explained hi/ circumstances. Sec. 1G47. A contract may be explained by reference to the circumstances tinder which it was made, and the matter to which it relates. See 1 Addison on Cont., sec. 1S2, Abbott's served, and tlie subsequent conduct of the notes. The relation of the parties to each other parties may be inquired into: McNeil v. Shirley, and to the subject-matter must be considered 33 Id. 202. And see the construction given to in cases of doubtful contracts: Thonrpaon v. a contract to build a dam within a certain J/cA'a//, 41 Cal. 221. The circumstances under time "or as soon thereafter as practicable:" which the contracts were made must be ob- Rtedy v. Smith, 42 Id. 245. 1643. Contract resfricted to its evident object. Sec 1048. However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. See same principle: Code Civ. Proc, sec. 1864, and note. Section cited ia Brickell v. JJatchd' der, 02 (Jal. 623. 1649. Interpretation in sense in which promisor believed promisee to rely. Sec. 1G49. If the terms of a promise are in any respect ambiguous or uncer- tain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. The language used by either party is to have party would give it: Barlow v. Scoft, 24 N. Y. such a construction as lie supposed the other 40; Gutiiiisoii v. Bancroft, 11 Vt. 490. 1650. Particular clause subordinate to general intent. Sec 1G50. Particular clauses of a contract are subordinate to its general intent. Particular clauses subordinate to gen- respected: BpU v. Brunt, 1 How. 169, 184; eral intent. — But if particular words or chaises JIolm>'s v. Martin, 10 Ga. 503; Vounhan v. For' are introduced for the purpose of qualifying the ter, 10 Vt. 2G0; Bnxt>>r v. State, 9 Wis. 38. general language used, this purpose should be See also infra, sees. 1652, 1653. 1651. Contract, partly xorilten and partly printed. Sec 1051. 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 originally 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. '"Written parts control the printed copied from a form.' This is the real principle parts:' Harper v. N. Y. City Ins. Co., 22 N. of the foregoing decisions. Printing is only Y. 444; Harper v. Albany /.ys. Co., 17 Id. 198; evidence that the contract was partly formal Woo'lri'/' V. Com. Mut. Inx. Co., 2 Hilt. 122; and partly ori^jinal:" Commissioners' note. Bee People v. Saxton, 22 N. Y. 309. ' The parts So also Clark v. IVoodruf, S3 N. Y. 518. which are original control tliose which are 1652. Repugnancies, how reconciled. Sec 1G52. Repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some efifect to the repugnant clauses^ subordinate to the general intent and purpose of the whole contract. 1653. Inconsistent words rejected. Sec 1653. "Words in a contract which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected. Rejeoting words and clauses in contracts 337; Stockton v. Turner, 7 J. J. Marsh. 192; on account of their inconsistency w itli the na- Uecorah v. Kesselmeier, 45 Iowa, 100. ture or design thereof: Buck v. Burk, 18 N. Y. 307 ->( ^ §§ 1654-1661 CONTRACTS. [Dnr. Ill, Part II, 1654. Words to be taken most strongly against whom. Seo. 1654. In cases of uncertainty not removed by the preceding rule, tlie language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party; except in a contract between a public officer or body, as such, and a private party, in which it ia presumed that all uncertainty was caused by the private party. Uncertainty, against whom construed. — 9 Wall. 394; Barney v. Newcomb, 9 Cush. 46. LangiiaL^e in a contract uncertain and ambigii- But as is indicated by the above section, this ous is to be taken most strongly against the rule is to bo applied only where the ambiguity person using it, or who causes the uncertainty or doubt cannot otlierwise be explained: Falley to exist: Marvin v. Stone, 2 Cow. 781; Harper v. G'dei^, 29 Ind. 114. V. N. Y. Citii Iiiff, Co., 22 N. Y. 441; Union In contracts between the public and a private Bank v. Guice, 2 La. Ann. 249; Livingston v. individual the uncertainty will be presumed Ilarrimjton, 28 Ala. 424; Noonan v. Bradley, to have been caused by the latter. 1655. Reasonable sfipulations, when implied. Sec. 1655. Stipulations which are necessary to msike a contract reasonable, or conformable to usage, are implied, in respect to matters concernin"^ which the contract manifests no contrary intention. 1656. Necessary incidents implied. Sec. 1656. All things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded. Brickell v. Datchelder, 62 Cal. 623. X 1657. Time of performance of contract. Sec 1657. 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 natui'e capable of being done instantly — as, for example, if it consists in the payment of money only — it must be performed immediately upon the thing to be done being exactly ascertained. That the law implies that a contract is to be time for performance should be allowed, see perfoimod immediately, or at most witliin a Vaure v. Pena, 41 Id. GSG; Grey v. Tnhb% 43 rcasonalile time, where no time of performance is Id. 359; Vaxsaidl v. Eilvoarda, 43 Id. 459; Bpecilied, see Brenvan v. rord, 46 Cal. 7; Luck- JJtuist v. Pujol, 44 Id. 230. hart v. Oglen, 30 Id. 547. That a reasonable 1653. Ti7ne when of essence. Section 1058 was repealed by act appproved March 30, 1874; Amendments 1873-4, 242; took eflfect July I, 1874. 1650. When joint and several. Sec 1659. Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several. Contracts, joint and several: See ante, tiablo instruments: Monaon v. DrakeJij, 40 sees. I4;'.0<>tseri. Conn, ry'yl; Maiden v. Websfer, .SO Ind. 317; P oniiso in tho sinsular made by several Dill v. IVhlle, 52 Wis. 109; Partridje v. Colby, poisons creates a ji)int and several liability. 19 Barb. 248. This principle has been applied often to nogo- 1660. Same. Sec 1660. A promise, made in the singular number, but executed by several per.soas, is presumed to be joint and several. IGSl. Executed and exccalori/ cmitractH, what. Sec 1661. An executed coutract ia one the object of which is fully per- formed. All others are executoiy. 308 Title IV.] UNLAWFUL CONTHACTS. §§ 1667- 1G76 TITLE IV. UNLAWFUL CONTRACTS. 1667. What is unlawful. Sec. 1GG7. That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals. Contracts iu restraint of trade: See sec. emoluments are void: Martin v. Wade, 87 Id. 167?>, irfra. Conlxacta iu restraiat of marriage: See 860. JG7*), infra. Conditions, -when void: See ante, sees. 709, 710. 711. Unlawful contracts. — Under the first snb- ilivisnni of the above section tlie code commis- tioiiirs say: "The law makes no distinction i;i this icspect between muliim prohibitum a::d ■maii:m in sc: Pennimitou v. Toioaseud, 7 Vi'cnd. 21ir, Lcavitt v. J'almer, 3 N. Y. 10; De Orod V. Win Dazcr, 20 Wend. 390; Pratt v. A'l(im>^, 7 I'aige, G.33; Seneca Co. B'k v. Lamb, 20 B:irb. 505."' For a distinction between contracts malum in IGS. Contracts to prevent bidding at an exe- cution sale are void: Packard v. Bird, 40 Id. 37S; so may be contracts to ]irocure a franchise: Poicell V. lUafj'iire, 43 Id. 11. Contracts for an attorney's contingent fee are valid: Ilojfman v. Vallejo, 45 Cal. 504; Baflardw Cirr, 43 Id. 74; and so is a contract to drauglit a bill and place it in the hands of a legislator: Mifc.i V. Tliornp, 33 Id. 335. Whether money received by an agent to be applied to an illegal purpose can be recovered back, see Whiti' v. Li/ons, 42 Id. 279. See also citations under next subdivision. A contract by a pre-emptor, before his pay- ment, to sell the timber on tho land for private se ami mafum jirohibilnm, with respect to tl>e puijioses is void, and the subsequent aecpiire- reniedy afiorded, see Martin v. Wade, 37 Cal. 1U8. Subd. 2. Contrary to the policy of ex- presa la'cv. — Under tliis clause the commis- ■ioiicrs ci::e IkU v. Lenijett, 7 N. Y. 170, 181; (Jray v. Hook, 4 Id. 449. Thci'e is no difference in principle between a contract to keep a witness for the government out of tho way and an agreement to suppress aid get from the archives or oOiees of tho gov- enimeut a deposition, a knowlidge of which may bj important to tlie government, and such contracts woidd be void as against public pol- icj': Wc'eiitiiie V. Stcwirt, 15 Cal. 3S7. Any mcnt by the pre-emptor of the title confers no right of action: Ladda v. llawley, 57 Cal. 51. A note given fur timber growing on public land i^ void: Sivainjcr w Mayherri/, 59 Id. 91. Subd. 3. Contrary to good "morals.— A promise to many in consideration of the con- tinuance of an illicit relation by tho promisee with tho promisor is void: B(>i(jiieren v. Bon'o.i, 54 Cal. 140; lU„kt v. Nng/ce, Id. 51. Conlrart based on an agreement of a trustee of a c ^r- poration to resign is voiil; Forben v. McDounhl, 54 Id. 98. And a contract by an administra- tor to give a broker all he can realize above a certain sum on a sale of laud of the estate is agreement as to governuient contracts which agiinst public policy, and cannot be enforced: tends 1o deprive the government of the ad van- L>>niielicilz v. S/ieppard, 62 Id. 339, 342. So a tagccf competition in the bidding is void: .S'(t"rt?i note given by the wife for land conveyed by V. Chorj/emiiiKj, 20 Id. 182. A contract by a husband to her in consideration of her allowing Eub-ic oiieer which interferes with the un- him to get ad. vorce from her is void: L'enrd v. iase 1 discliargo of his duty is void: See Spence Beard, 3 West Coast Rep. 208. Agreement to v. Ihirih-ij, 22 id. 336. pay attorney a contingent fee is valid: Ballard So also where a county surveyor enters into v. Carr, 48 Cal. 74; llojman v. Vallejo, 45 Id. a private arrangement whereby he is to acijuire 504. on J half of lands surveyed: E'/u-ards v. Estill, Warjers are against good morals and sound 48 Cal. 194. Nor can one acting in a fiduciary policy, and cannot be enforced by the courts; capacity deal with himself as an individual: before the wager is decided the money can be Wdbnrw L>/iide, 49 Id. 290. Agreements, in recovered by cither party from the stakeholder; consideration of aiding to an ofDce, to shareits afterward, by neither: Gridley v. Born,!}! Id.lS. 1663. Certain contracts unlav-fid. Sec. 1G08. All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or neg- ligent, aro against the jpolicy of the law. 1869. Periallles void. Section KiOO was repealed by act approved March 30, 1874; Amendments 1873 4, 242; took eflecfc July 1, 1874. 1670. (Jordroct fixinrj dnmagrK, void. Seo. 1G70. Every contract by wbich the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in 309 §§ 1671-1674 CONTRACTS. Piv. Ill, Part II, anticipation thereof, is to that extent void, except as expressly provided in the next section. Liquidated damages: See the note to next section. Til is and the following section ex- press tlie rules of law now generally recognized in tliia country as ajiplicable to contracts which undertake to iix iii advauce the damages to be paid for non-performance. The subject will be found discussed quite fully in the note to Graham V. Birkhain, 1 Am. Dec. 331; eee also 2 Addison ou Cout., 8th ed., Abbott's notes, p. 686. 1671. Excfplion. Sec. 1G71. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, wben, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damacfe. The use and meaning of the terms "penalty," ami "liquidated damages " are commented on in People v. Love, 19 Cal. 676. Ill the following cases the sum stated was hold to be a penalty: Nash v. Jlermoxitn, 9 Cal. 5'-i4; RickeUonx. likhardHon, 19 Iil. .330; Hal- deman v. Jenkins, 14 Ark. 329; Clark v. Kay, 26 Ga. 403; Foley v. McKi-effan, 4 Iowa, 1, a leading authority; Daily v. Litchfield, 10 Mich. 29; Lonq v. Towl, 42 Mo. 406; Wilson v. Gra- ham, 14 Tex. 222. And in the following cases the damages were declared to be liquidated: Cal. Steam Nav. Co. v. Wrhjht, 6 Cal. 258; Fisk V. Fowler, 10 Id. 512; Streeter v. Riu^h, 25 Id. 67; Gammon v. Ilotoe, 14 Me. 250; Goiren v. Gerrish, 15 Id. 273; Brewster v. Edijerly, 13 N. H. 275; Durst v. Swift, 11 Tex. 273; liyan V. Martin, 16 Wis. 57. 1672. Redraints upon legal proceedings. Section 1672 was repealed by act approved March 30^ 1874? Amendments 1873 4, 242; took effect July 1, 1874. 1673. Contract in restraint of trade, void. Sec. 1G73. Every contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent void. Contracts in restraint of trade. — The conimissicmers preface tlieir note with the remark: "Contracts in restraint of trade have been allowed by modern decisions to a very dan- gerous extent," and conclude with these obser- vations : "By the terms of this section, and by the following section, the restraint imposed would seem to be obliged to be limited to a specilicd county; and to tliis effect, also, are the cases of Wrifjht V. Ryder, 30 Cal. 342, and More v. Bonnet, 40 Id. 251. In Whdtaker v. Howe, 3 Beav. 387, a contract not to practice law any- where in England was specifically enforced. Such a contract maniiestlj' tends to enforce idleness, and deprives the state of the services of its citizens." This important subject will be found to be treated in the light of very recent adjudications in the late work on contracts by Mr. Wharton, vol. 1, sees. 430 ct scq. In this state, in addi- tion to the cases above referred to, the follow- ing involve applications of this branch of the law: A contract not to run boats ou a certain line of travel was declared valid in Cal. Steam Nav. Co. V. Wrhjht, 6 Cal. 258. A contract not to engage in a particular business in the state of California was held invalid, in More v. Bonnet, 40 Id. 251 ; and so a contract not to engage "in any brancli of the yeast-jiowder business:" Callahan v. Donnelly, 45 Id. 152; a contract not to sell to any other: Schwalm v. Holmes, 49 Id. 665; and a contract to buy from a particular individual for a stated time, in consideration of the latter's refraining from selling during that time: Lightner v. Menzell, 35 Id. 452 — are valid. In Golden Gate Packing Co. v. Farmers' Union, 55 Cal. 600, a contract giving to the defendants the agency to sell plaintiffs' goods cast of the state of California was construed not to prevent the plaintiffs selling their goods east them- selves; the defendants' right went only to the agency for the goods. 1674. Exception in favor of sale of good-will. Sec. 1G74. One who sella the good-will of a business may agree with the buyer to refrain from carrj'ing on a similar business within a specified county, city, or a part thereof, so long as the buyer or any person deriving title to tlie good-will from him carries on a like business therein. Good-will of a business defined: Sec. 992, sec. 1G73, swpra. " The district within which a party may exclude himself from carrying on business should be accurately defined by law. And no one should bo allowed to prevent another from carrying on a business unless he himself provides the public with the same advantages in the same county or city, or part thereof: ]\lore V. Bonnet, 40 Cal. 251; Wrlfht v. Ryder, Sold. 342." ante. Good-will of a business is property: Sec. 993, ante. Sale of good- will, implied warranty not to draw a\vr.y customers: Hec. I77l). /ws<. Partner cauao'; dispose of good- will: See jpos/. sec. 2t30, subd. 2* Contracts restroiniaTr trade; See note to 310 Title V, Chap. II.] EESCISSIOK g§ 1675-1689 1675. Exception in favor of partnership arrangements. Sec. 1G75. Partners may, upon or in anticipation of a dissolution of tlie partnershij), agree that none of tliem will carry on a similar business within the same city or town where the partnership business has been transacted, or within a sj)ecified part thereof. 1676. Contract in restraint of marriage, void. Sec. 1G7G. Every contract in restraint of the marriage of any person, other than a minor, is void. Conditions in restraint of marriage: See ante, sec. 710, and note. TITLE V. EXTINCTION OF CONTEACTS, Chaptpb I. Contracts, how Extinguished 1G82 II. Kescission 1G83 III. AlTEKAHON AND^ CANCELLATION . ., 1G97 CHAPTER I. COXTEACTS, HOW EXTINGUISHETX 16S2. Co-ntract, how extinguished. Sec. 1G82. A contract may be extinguished in like manner with any otheJ obligation, and also in the manner prescribed by this title, CHAPTER XL RESCISSION. 1683. Rescission extinguishes contract. Sec. 1G88. A contract is extinguished by its rescission.. 1689. When party may rescind. Sec. 1GS9. A jDarty to a contract may rescind the same in the folloAving eases only: 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained througli 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, thi'ough the fault of the party as to whom he rescinds, the considera- tion for his obligation fails, in whole or in part; 3. If such consideration becomes entirely void from any cause; 4. If such consideration, before it is rendered to him, fails in a material re- spect, from any cause; or, 5. By consent of all the other parties. See pos/!, sees. .3403 et acq., on rescission. scinrl. The proposition ia well settled that Resjission of contracts. — Subd. 1. where one has l)eeii intluced by fraud to enter Duress, menace, fraud, uadue influence, or into a contract, he may either ratify tlie same, . mistake. — Couseutobtained through either one and sue for ilainages, or rescind: See 1 Whart. of these means is not free, within tlie require- ou Coiit., sec. '2i'l; 2 Addison on Oont., sec ments of a valid consent: See sees. ir)G3, iJG7, 1-lS, AI)bott's n«tes; Alvarez v. Dniiman, ante. But couseut so obtained does make a con- 7 Cal. 50:>; Pence v. Lawjdon, 00 U. S. 578j . tract absolutely void: Sec. I.IGG. It gives to Place w MiHsler,Gr)'S. Y. 80; BraiUiyw Luce, the party the right to ratify the contract or re- 90 111. 234; Cooper v. Mcllvalu, 58 Ala. 296; , 311 g§ 16no. 1G91 CONTRACTS. [Div. Ill, Part II, Pendn-vix v. Orny^ 41 Tex. 320; ifcf^have v. Haze hni-M, 50 i\lil. 107. It i^ iinmatctial, in juiat contr.acus, wliether tlie consent of the re- Bcinding party, or of tlie one jointly contract- ing, was ooLaiiied by fraud: iSec City Daiih of Colttmhu'< V. Bruce, 17 N. Y. 514, acase of joint and several contract. False r.'[iresentations which do not occasion actual damage do not furnish a ground for rescindin.; an executed contract: Purdyv. Bid- lard, 41 Cal. 444; Comm.l-^sioiii'rs v. YouiKjer, 20 Id. 17-'; and see Morrison v. Z/oc/.s, 39 Id. 8Sl. In case of a mutual mistake as to the feuhject-matter of a contract, the remedy of the aggrieved party is by rescission: Barjield v. Price, 40 Id. 535. Mistake as a ground of re- lief against a contract: See note to Miles v. Stevens, 45 Am. Dec. 631. Where advantage has been taken of the situ- ation or condition of one of the parties, equity will set aside the contract. In this case, ad- vantage was taken of the ignorance of a boy by a shrewd man, in whom the former had placed confidence: Ilali v. PerkUi-i, 3 Wend. 62G. And in the following, imposition and un- fair advantage was practiced u[)on parties: Udall v. Keiiney, 3 Cow. 590; Cltthercdl V. Offilvie, 1 Desau. 260; Lester v. Mahun, 25 Ala. 445. Examples of undue influence as a ground of resorting to equity to rescind a contract will be found in Kennedy v. Kennedy, 2 Id. 571; WiUiayns v. Powell, 1 Ired. En. 4G0; Wheeler V. Smith, 9 IIow. 55; Whefan v. ]Vhelan, 3 Cow. 5.'>9; Harding v. Handy, 11 Wheat. 103. Mere feebleness of intellect is not of itself Bulficient ground to set aside a contract: Gra- ham v. Castor, 55 Ind. 559; but will furnish eatisfactory cause when coupled witli an un- conscionable bargain: Mann v. Betterly, 21 Vt. 32C; Harris v. Wamsley, 41 Iowa, G71; Butler V. Hasti-ll, 4 Desau. 651. So where the party was in a state of intoxication at the time: Hotchkiss V. Fortson, 7 Yerg. 67; Whitev. Cox, 3 Hayw. 79; Calloway v. Witlierspoon, 5 Ired. Eq. 128. Subds. 2, 3, 4. Failure of consideration. Mere inadequacy of co:isideratio;i is not a ground for rescission: See note to I/oittjh's Ad- mini-^tralors v. IJuiit, 15 Am. Dec. 572. (irosa inadequacy of consideration, coupled with any inOiience or authority of the party gaining the benefit over the other, will justify a lescis- sion: See supra, in this note, and 1 Whart. on Cont., sec. 518. Whore a frau; /■'rrt.'t v. Pi-^ke, 17 discovering the facts entiding him to such Id. 330; Getty v. Devlin, Hi: N. Y. 415; U)>l(m 312 Title V, Chap. III.] ALTERATION AND CANCELLATION. §§ 1607. 1698 V. Trehiloch. 91 CJ. S. 45; Watson Coal Co. v. Canted, CS lud. 470; Memphis etc. li, li. Co. v. Neighbor'', al ]\Iis3. 412; and see the reference to text-boiiks in tlie note to sec. 1G89, ^xtpra. The couit Vi i 1 not say, as a matter of law, that a delay to ttFcr to rescind for a jjeriod of a little less than six i;;ontli3 is such laches as ^vill de- prive a parf.y ulaiutiff of his right to such relief: Mar.iton v. Sim.tson, 54 Cal. 189. The code commissioners, in their note totliis Bubdivi;iion, saj': " This is undoubtedly the common-law rule. But the rule in equity does not apjicar to have been so strict. The equita- ble action for rescission is governed by rules etated in the fourth division of this code:" See sees. 3-10')-34C8, post. Subd. 2, Restoring what has been re- ceived. — The party seeking to rescind must restore, or offer to restore, what has been re- ceived under tlie contract: Waits v. While, 13 Cal. 821; Wintoii v. Spring, 18 Id. 451; Morri- sonw Lods, 39 Id. 381; Herman v. Ileffeiierirjer, 54 Id. IGl; Miller v. Stent, 30 Id. 492; hitz v. Bynum, 55 Id. 459; Henderson v. HicLs, 58 Id. 364; Col/ins v. Townsend, 58 Id. COS. For the right of rescission does not exist if tlie parties cannot be placed in their original condition: Calif ornin v. McCauley, 15 Cal. 429; Fratt v. Fisle, 17 Id. 330; Commissioners v. Youufj^r, 29 Id. 172; Morrison v. Lods, 39 Id. 381. Tliis, however, does not mean that things should be replaced in every sense as they were, as this is imjiossiljlc: See tiie discussion 1 Whart. on Cont., sec. 2S5; and see the cases cited on the general proposition of offering; to restore ben- efit received: Addison on Cont., sec. 1218, Abbott's note. Tlie restoration must be made within a rea- sonable time: Collins v. Toirnsend, 5S Cal. 008, GIO; and see Bank of Woodland v. iliatt, Id. 234. A vendor who seeks to rescind must restore the money paid to him: Bohall v. Diller, 41 Cal. 535; Henderson v. Hiclcn, 58 Id. 304; Miller v, Steen, 30 Id. 402. Ami as to return- ing consideration money received under a con- tract which the party receiving wishes to set aside, see Morrison v. Lods, 39 Cal. 351. A vendee who wishes to rescind a convey- ance of land must tender a reconveyance: Wil- bur V. Flood, IG Mich. 40; Parks v. Ecansville R. R., 23 Ind. 507; Mitchell v. Moore, 24 Iowa, 394. See, as to necessity of surrendering pos- session, Haynes v. White, 55 Cal. 38. An offer to return the deed is not a rescission nor an offer to rescind: Ahrens v. Adler, 33 Id. 608. An offer *:o return is not necessary where tlie subject-matter is w.orthless: Thurston v. Bhinrhard, 22 Pick. IS; Duval v. Mowry, 6 R. I. 479; and see Fitz v. Bynum, 55 Cal. 459. The rescission must be in toto: Bohall V. Diller, 41 Cal. 532. CHAPTER IIL ALTERATION AND CANCE? XATION. 1697. AUerntion of verbal contract. Sec. 1G97. A contract not in writing may be altered in any respect by con- sent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of the new alteration. [Amendment, approved March 30, 1874; Amendments 1873-4, 242; took effect July 1, 1874.] "Alterations, generally, but not always, release. Even a mere extension of the time consist iii the su'ostitution of a new contract for the one that is superseded. Such an altera- tion is a novation, antl is considered under that head. A consideration is necessary to make an alteration valid at common law. A novation implies a consideration, but an altera- tion of any other kind amounts only to a par- tial release without seal: See the chapter on for performance requires a consideration to support it: Kellog:) v. Ol.nst"ad, 25 N. Y. 189; affirming S. C, 28 Barb. 90:" Code commis- sioners' note. Alterations in •written instrument to be accounted for by the party producing it in evi- dence: Code Civ. Proc, sec. 1982. 1698. Alteration of written contract. Sec 1G98. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not othei'wise. [Amendmeid, approved March 30, 1874; Amendments 1873-4, 242; took effect July 1, 1874.] Verbrd alteration. — An oral change in or vaivcr of t!ie terms of a written ac^rcement must be cl.-aily tscabliihed: Lassitiff v. Caii/e, 6J Cal. .575; find .^^ce Perkins v. Ci/Jtir S. '.)/. Co., 35 Id. II. See, case where it was doubt- ful, La-tsi,/ v. Pdi'je, 50 Id. 139. That the time for performance of a contract in writing may l>e waived or extended liyoral agreuiiieut, bco Waii'/enheim v. Graliam, .19 Cal. 169; and as to what evidence is sufficient to establish such verbal agreement, see Luckhurt v. Ofjdeii, 30 Id. 547. It is to be noted that in till! code as originally adopted there was the following clause after the word "otherwise" in the above section, which clause was stricken out by tlie amendment of 1874: " Except aa to the time of performance, which may be extended by any form of agreement." Parol evidence to alter writings: See Code Civ. Proc, sec. 1856, and note; and see ante, sec. 1039. 313 §§ 1609-1712 OBLIGATIONS IMPOSED BY LAW. [Div. HI, Paet m. 1699. Extinction by cancellation, etc. Sec. 1G99. The destruction or cancellation of a written contract, or of the signature of the parties liable thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. 1700. Extinction hy unauthorized alteration. Sec. 1700. The intentional destruction, cancellation, or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act. The alteiMtion of an imlemiiity bond by sub- worked no injury in the particular case, and stitatiog tlie name of a different claimant, and was hell not to vitiate the bond: Rojers v. tlien by erasing this new name and restoring Shaw, 59 Gal. 260. the original one, while not to be approved, yet 1701. Alteration of duplicate not to prejudice. Sec 1701. Where a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, ia not within the provisions of the last section. PAET in. OBLIGATIONS IMPOSED BY LAW. 1708. Ahdinence from injury. Sec. 1708. Every person is bound, without contract, to abstain from injur- ing the person or property of another, or infringing upon any of his rights. The code commissioners say that "these divisions of this code." See also Penal Code» rights are deliued by the first and second sees. 346-349. 1709. Fraudulent deceit. Sec 1709. One who willfully deceives another, with intent to induce him ta alter his position to his injury or risk, is liable for any damage which he thereby suffers. 1710. Deceit, what. Sec 1710. A deceit, within the meaning of the last section, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communica- tion of that fact; or, 4. A promise, made without any intention of performing it. Fraud actual and constructive: See sees. 1571 et seq. 1711. Deceit upon the public, etc. Sec 1711. One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every indi- vidual in that class who is actually misled by the deceit. 1712. Itrstoration of thing wromifulhj arqulrcd. Sec. 1712. One who obtains a thing without the consent of its owner, or by a consent afterwards rescinded, or by an unlawful exaction which the owner could not at the time prudently refuse, must restore it to the person from whom it was thus obtained, unless he has acquired a title thereto sup^^rior to th it of such other person, or unless the transaction wu corrupt and unlawful ou both sides. 314 Part IV, Iitlk L] SALE. §§ 1715-1715 "Justice, ratlier tliau the decisions, has been intended to provide for the exceptions created foUoweil ill the text. The difficulty sueina to by the title on negotiable ducumeuts, and by be that the courts have established one rr.lc as section 1 142:" From code coniniissioners' note, to the leclamation of money paid, which is The maker of a promissory note who induces simply the rescission of an executed contract, the holder to surrender it so as to prevent the and anotiicr as to tlic rescission of a promise to coiimencemeut of an action thereon is liable pay, which is aa executory contract:" From for such deceit, although the statute may have code coniMiissioners' note. run against the note at the time the action is " ' Unless he has acquired a title thereto brought: Cockrill v. Hall, 3 West Coast Rep. superior to that of such other person.' This is lOG. 1713. When demand necessarxj. Sec. 1713. The restoration required by the last section must be made with- out demand, except where a thing is obtained by mutual mistake, in which case the party obtaining the thing is not bound to return it until ho has notice of the mistake. 1714. ErsjwnsibilUy for willful acts, negligence, etc. Sec. 1714. Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinaiy care or skill in the management of his property or parson, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The exteijt of liability in such cases is defined b}' the title on compeusatoiy relief. Compensatory relief: See post, sees. 32S1 et seq. 1715. Olher obligalioiis. Sec. 1715. Other obligations are prescribed by Divisions First and Second of this code. PART IT. OBLIGATIONS AEISING FROM PAHTICULAR TRANSACTIONS. Title I. S.\le 1721 II. Exchange 1804 III. Deposit 1813 IV. Loan 1884 V. IIiRixG 1925 VI. Service 1965 VII. Carriage 2085 VIII. Trust 2215 IX. Agency 2295 X. Pautnership 2395 XL Insurance 2527 XII. Indemnity 2772 XIII. Guaranty 2787 XIV. Lien 2872 XV. Kegotl\ble Instruments 3086 XVI. General Provisions j 32G8 TITLE r. SALE. Ciiapter I. General Provisions 1721 II. Rights and Obligations ok the Seller 1748 TIL Rights and Obligations ov ■:n-: Buyer 1784 IV. Sale by Auction 1792 S§ 17:21-1732 OBLIGATIONS. IDiv. Ill, Part IV, CHAPTER I. GENERAL PROVISIONS. Abticle I. Salr 1721 II. A<;iiKEMEXTS FOR Sale 1726 III. FuKii OF TUB Contract 1739 AETICLE I. SALE. 1721. Sale, what. Sec. 1721. Sale is a contract by which, for a pecuniary consideration called a price, one transfers to another an interest in property. 1722. Suhji'cl of sale. Sec. 1722. The subject of sale must be property, the title to which can be immediately transferred from the seller to the buyer. ARTICLE II. AGEEEMENTS FOR SALE. 1726. Agrpement for sale. Sec. 17 2G. An agreement for sale is either; 1. An agreement to sell; 2. An agreement to buy; or, 3. An agreement to sell and buy. 1727. Arireemerit to sell. Sec. 1727. An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing. "The distinction between a sale and an another, in the latter he only promises to sell:" agreement to .sell \i tliis: that in the former the Connnissioners' note. thing Avhich is t!ie subject of the contract l>e- • Aa an illustration of an agreement to sell, see comes the propfrty of the buyer as soon as the tlie delivery of a i)iano with an agreement to contract is co:ichi(lcd; in the latter the property transfer the title when the person to whom it is of the thiu',' renains in the vendor until the deliveredshallhavcpaidtheoonsiderationmoney contract is executed; in the former one sells to by installments : Kohier v. Hayes, 41 Cal. 455. 1728. Agrepmeiil to buy. Sec. 1728, An agreement to buy is a contract by which one engages to accept from another, and pay a price for the title to a certain thing. 1729. Agreement to sell and buy. Sec. 1729. Ad agreement to sell and buy is a contract by which o.ne engages to transfer the title to a certain thing to another, who engages to accept the same from liim and to pay a price therefor. Acceptance ou trial does not pass the title: Ilulltidie v. Sutter St. R. R., G3 Cal. 575. 1730. Whnl may be the subject of the conlrnct. Sec 17o0. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not. 1731. Agreement to sell real property. ' Sec 1731. An agreement to sell real property binds the seller to execute a conveyance in form sufficient to pass the title to the property. \Amfii(hneni, appron'd Mnri-li 30, 1874; Amendmentx lvriting, and subscribed by the party to be charged, or by his agent; or, 2. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof, or some of them; or, 3. The buyer, at the time of sale, pays a part of the price. [Amendment, approved March 30, 1874; Amendments 1873-4, 243; look effect July 1, 1874.] Psrsonnl property.— "It will be observed Siibd. 2. Acceptance and receipt of part that the phrase 'personal property' has been of the thing sold — Both must concur, aiul the Bubstitutid for the words 'goods, wares, and words of the seller are not suiiicieiit to take the merchandise' of the English statute, and tlie case out of the statute. Some act of the buyer words 'goods, chattels, or things in action' of is essential to acceptance: Slujidlerv. Ilou-/, .t SL-i|. Depo.it for hiro: Sees. I8.")l, -poitl, et seij. Deposit for ex ^haass: Sec. IS.')S, jos/. Loin for use: Sues. ISSl et 86 |.; loin for excli;uit,'ii: Sec. l!)02; loan of money: Sec. It)l2. Hiring; .Si-e sees. \\)1'), fioxi, et seij. Innkeeoers: Sees. IS.j:), />0'le for any accident The code commissioners say: "The deposit whicli occurs, for his agreement is to keep the of the text is a 'special deposit,' treated and bailment, and not to keep it safely: ytory on illustrated at length: Edwards on Bailm., GG- Contracts, 731, sec. 091." 1813. Deposit for exchange, what. Sec. 1818. A deposit for exchange is one in which the depositary is only bound to return a thing corresponding in kind to that which is deposited. Deposit for exchange transfers title: Sec. ment. Money deposited in a bank whicli mingles 1S7S, jiO'oM." deposit of tlie text is in the nature of a general Loan for exchange: See^o^i, sees. l6u2 et deposit, and creates a debt rather than a bail- seq. ARTICLE II. OBLIGATIONS OF THE DEPOSITARY. 1822. Depositary must deliver on demand. Seo 1822. A depositary must deliver the thing to the person for whose benefit it was deposited, on demand, whether the deposit was made for a speci- fied time or not, unless he has a lieu upon the thing deposited, or has been forbidden or prevented from doing so by the real owner thereof, or by the act of the law, and has given the notice required by section eighteen hundred and twenty -five. Depositary must reitore tli3 idsntioal coin, wliereitwas agreed that the depositary thing ilciii)s;tetl on demand: Story on liaiLu., slioiiM pay interest, the special de|)0sit is turned wc. UG. But iu case of a special deposit of gold to an open account: Hathaway v. Uracil/, 26 325 S§ 1823-1827 OBLIGATIONS. t^-v. Ill, Part IV, Cal. 581; TToivard v. Hophe.n, 33 Id. 399. If it 3G5, 376. But where the depositor has no title, be injured or lost by the dt-positary's f^roas and the real owner is entitled to and demands negligence he is responsible tiicrefor: Id. Or- possession, the depositary may deliver to him: diuai-y dilii^ence, at least, is required of a de])<)si- We.nterii T ranifpoHation Co. v. Barlier, 5(i N. Y. tary for hire for the preservation of the thing 544; Kelli/ v. I'atche.ll, 5 W. Va. 5S.'); and see deposited: Sec. 1852, pout. Story on Bailments, sec. 102. The jiia tertii Depositary is not bound to restore without may be relied upon by the bailee where his demand: Sec. 1823. But whether demand is bailor's possession was fraudulently obtained: necessary to start the nmiiingof interest where JJnyden v. Davis, 9 Cal. 573. With resi)ect to the depositary has disclaimed his relation with the bailee's riglit to set up title iu a third per- the (le[)ositor, see Dirkhisonv. Owen, 11 Cal. 71. son iu defense to the bailor's action, see note To ■whom restitution to be made. — As a to //os^/r's Admr v. Skull, 1 Am. Dec. 583. general rule, the depositary must, on demanon the deposit, and indemnity for as to suppress temptation to do wrong. Our all losses occasioned thereby: Ayliil'e, I'and., b. law only exacts ample compensation for actual 4, tit. 17, pp. i>'-l, x>~2; 1 Domat, b. 1, tit. 7, injury and loss; Story on Bailm., sec. S.*]; but sees. 2, 3, arts. 1-3, 14; PothitT Traite de j)unislies a conversion as a larceny: See Pen. Deiiot., n. 50, C9, 74; Code La., arts. 2927-^ Code, sec. 4So:" Commissioners' note. 2931 ; Ersk. Inst., b. 3, tit. 1, sec. 28; 1 Domat, Whether the dcpositai'y would be considered b. 1, tit. 16, sec. 1, art. 4. Code La., art. 21:31, to have a lien for reimbursement or indemnity is as follows: 'He who has made a deposit is under this section, compare sees. 1839, 3031; bound to reind)nrse the depositary the money and Story on Bailm., s c. 121. he has advanced for the safe-keeping of the L'nder's liability for defects of articles thing, and to indemnify him for all that the borrowed: See sec. 1894. 1834. Obligailon of depositary of animals. Sec. 1834. A depositary of living animals must provide them with suitable food and shelter, and treat them kindly. Lien of keepers of live-stock: See post, sec. 3051. 1835. Obligations as to use of thing deposited. Sec 1835. A depositary may not use the thing deposited, or permit it to be used, for any purpose, without the consent of the depositor. He ma}' not, if it is purposely fastened by the depositor, open it without the consent of the. latter, except in case of necessity. S<.'e next section. Kiring: See jioat, sees. 1925 et seq. 1836. Liability for damage arising from wrongful use. Sec 183G. 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 jDvoperty had not been thus used. See the subject of user of deposit by the depositary considered fully in Story on Bailments, . Bees. 89-92. 1837. Sale of thing in danger of perishing. Sec 1837. If a thing deposited is in actual danger of perishing before instructions can be obtained from the depositor, the depositary may sell it for the best price obtainable, and retain the proceeds as a deposit, giving immedi- ate notice of his proceedings to the depositor. See Stoiy ou Bailments, sec. 67; Porthier Traite de Droit, n. 42-44. 327 g§ 1S3S-1S47 0BLI'.^,ATT0N8. [Div. Ill, Pakt IV, 1GS3. Ii'junj to or loss of thv''^i fl^'pjsitcd. Sec. 1833. If ii thing is :oat or injure;] diu-ilig its deposit, and the deposi- tary refuses to inform the depositor of the circumstances under which the loss or injury occurred, so far us he has iuformatiou concerning' them, or willfully misrepresents the circuujstances to him, the depositary is presumed to have willfully, or by gross negligence, permitted the loss or injury to occur. Uinler tliis section (leclaratiiins Ijy the ilepos- of the loss are not binding on the depositary: itary's attorney at law as to the circunistaucea ]ViUon v. i<]pr rrceiptn. and other matters pertaining thereto. [Approved April 1, 1878; 1877-8, OiO.] Issuance of receipt for cjoo'Js. SwTioN 1. That no warehouseman, wharfinger, or other person doing a storage business, ehall issue any receipt or voucher for any good-s, wares, merchandise, grain, or other produce or commodity, to any person or i)ersons purjiorting to be tlie owner or owners tlieroof, unless such goods, wares, merchandise, grain, or other produce or commoility, shall have l)fcii Itona fide received into store by such warehouseman, vviiarfinger, or otlKr person, and shall be in store and under h s control at the time of issuing such receipt. Issuhiij of 7-i'rei/U upon goods as security f>r money /nanfd. Si:c. 2. That no wareliouseman, whariinger, or otlier person engaged in the storage business shall issue any receipt or other voucher upon any g xxis, wares, merchandise, gr;.iii, or other proiluce or commodity, to any person or |iLi-sons. as security for any money l.ianed, or other indebtedness, unless such goods, wares, merchandise, giain, or other produce or commodity, shall be, at tlie time of issuing such receipt, tlie property of such warehouseman, whariinger, or other person, shall be in store and under control at the time of issuing such receipt or voucher as aforesaid. Sfvoiid ri-n'ipfx not to he is'laeed by bis guests under bis care, unless occasioned by an irresisti- ble sui:)erLuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn. Liability of innkeepers: See the very in- 457; and Gray v. Commonwealth, 35 Id. 124, teresthig and important decision of Pinb'rton and note 125. V. Woodirard, .3.'} L'al. 557; and Mateer v. Bruwn, See next section. 1 Id. 221. For a discussion of wiiat is an inn. Refusing to receive guest a misdemeanor: and the rii^hts ami liabilities of innkeepers, see Pen. Code, sec. 365. the note to CLute v. Whjijins, 7 Am. Dec. 449- 1860. Ilnw exempted from liability. Sec. 18G0. If an innkeeper keeps a fire-proof safe, and gives notice to a guest, either personally or by putting up a printed notice in a prominent place in the room occupied by the guest, that he keeps such a safe, and will not be liable for money, jewelry, documents, or other articles of unusual value and small com- 330 1856. Lien for Storage Charges. A depositary for hii-e has a lien for storage [cliarges and for advances and insur- ance incurred at the request of the bailor, and for money necessarily expended in and about the care, preservation and keeping of the property stored, and he also has a lien for money advanced at the request of the bailor, to discharge a prior lien, and for the expenses of a sale where default has been made in satisfying a valid lien. The rights of the depositary for hire to such lien are] regulated by the title on liens. (In effect 60 days from and after April 10, 1909. Stats. 1909, Chap. 664.) Civ. Code, 1909. Title III, Chap. II.] DEPOSIT FOR KEEPING. §§ lSGl-1863 pass unless placed Iborcin, he is not liable, except so far as his own acts con- tribute thereto, for any loss of or injury to such articles, if not deposited with him, and not required by Ihe guest fur present use. Exemp Jon from liability. — "Tliis suction it was always enforced, as seen from tlie decis- affonls an opportunity for innkeepers, by tlieir ions (|Uotebi/. ."G IJarl). 70, are oa ceding section, and from the rigor with which this point: " Code commissiouera' note. 1861. Liena by hotel, inn, board i.ng-Jiouse, and lodf/ing-house keepers. Sec. 18G1. Hotel, inn, boarding-house, and lodging-house keepers shall have a lien upon the baggage and other propert}' of value of their guests, or boarders, or lodgers, brought into such hotel, inn, or boarding or lodging house, by such guests, or boarders, or lodgers, for the proper charges due from such guests, or boarders, or lodgers, for their accommodation, board, and lodging, and room rent, and such extras as are fui'nished at their request, with the right to the possession of such baggage or other property- of value, until all such chargen are paid. [New section, approved April 1, 187G; Amendments 1875-G, 78j looli effect from passage. ] 1862. Sale of unclaimed baggage for storage, etc. Sec. 18G2. "Whenever any trunk, carpet-bag, valise, box, bundle, or other baggage has heretofore come or shall hereafter come into the possession of the keeper of any hotel, inn, boarding or lodging house, as such, and has remained or shall remain unclaimed for the period of six months, such keeper may pro- ceed to sell the same at public auction, and out of the proceeds of such sale may retain the charges for storage, if any, and the expenses of advertising and sale thereof; but no such sale shall be made until the expiration of four weeks from the first publication of notice of such sale in a newspaper published in or nearest the city, town, village, or place in which said hotel, inn, boarding or lodging house is situated. Said notice shall be published once a week for four successive weeks, in some newspaper, daily or weekly, of general circulation, and shall contain a description of each trunk, carpet-bag, valise, box, bundle, or other baggage, as near as may be, the name of the owner, if known, the name of such keeper, and the time and place of such sale; and the expenses incurred 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 balance aris- ing 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 b}' the owner thereof or his legal representatives within one year thereafter, the same shall be paid into the general fund of said county. [ New section, approved April 1, 1876; Amendments 1875-G, 78; took effect from j^assage.] 1863. Posting of statement of charges, etc. Sec 18G3. Every keeper of a hotel, inn, boarding or lodging house, shall post in a conspicuous place in the office or public room, and in every bedroom of said hotel, -boarding-house, inn, or lodging-house, a printed copy of this sec- tion, 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 b}' any such person for anj' service not actually rendered, or for any item not actually delivered, or for any greater or other sum than he is entitled 331 §3 18G4-1SC0 OBLIGATION'S. [Div. Ill, Pakt IV, to by tlie pfencral rules and rc.'^ulations of said hotel, iun, boarding or lodging house. For any violation of this section, or any provision herein contained, the offender shall forfeit to the injured i^arty three times the amount of the sum charged in excess of what he is entitled to. ( New section, approved April 1, 187G; Ainendmenls 1875-G, 78; took effect from passage.] ARTICLE V FINDINO. 1864. Obligation of finder. Sec. 1804. One who finds a thing lost is not bound to take charge of it, but if he docs so, he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. Depositary for hire: See ante, sec. 1851 et Property of finder in lost cliattel; See seq. note to Brandon v. J/untsvifle Ba)d-, 18 Am. "This section, and some of the ensuing ones, Doc. ilj. Finder's title good as against every differ niaterially ffom the common law, under one but the owner and those claiming under v/liich the linJer is a gratuitous depositary, him: Dnrfee v. Jones, 11 11. I. 583; Ilaimtker Mr. Justice Story consiiieret is not bound to take charge of it: ' col ection of decisions upon the rights of the See Isaar v. Clarke, 2 Bulst. 306; Edwards on finder under an advertisement ofTcring a re- Bailm. 55, tit. Finder; Story on Bailm., sec. 8G, ward for the recovery of lost articles, see Ab- 87, c. 2. The doctiine laid down in 1 Bac. bott's note to 1 Addison on Cent. 24; see next Abr., tit. Bailment, D, is very unsatisfactory:" section. From coaimissiouers' note. 1865. Finder to notify owner. Sec 18G5. If the finder of a thing knows or suspects who is the owner, he must, with reasonable diligence, give him notice of the finding; and if he fails to do so, he is liable in damages to the owner, and has no claim to any reward offered by him for the recovery of the thing, or to any compensation for his trouble or expenses. Duty of findar of lost articles: See Pol. \. State, 35 Ohio St. 36; State v. Dean, 49 Iowa, Code. sec. .SI.*);; tt seq. ; Pen. Code, sec. 48."). 73; Bailey v. State, 58 Ala. 414; Pen. Code, When coavertius found chattel is lar- sec. 485. ceny: See Grhj'j.'i v. i,taie, 58 Ala. 425; Brooks 1868. Chnmant t.') prove ownership. Sec. 18GG. The finder of a thing may, in good faith, before giving it up, require reasonable proof of ownership from any person claiming it. 1887. Reward, etc. , to finder. Sec. 18(57. The finder of a thing is entitlcsd to compensation for all expenses necessarily incurred by him in its preservation, and for any other service neces- sarily performed by him about it, and to a reasonable reward for keeping it. 1368. Finder may put thing found on dorage. Sec. 18G8. 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. 1869. When finder may sell the thing found. Sec 18G9. 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 upon demand to pay the lawful charges of the finder, in the following cases: 332 Title IV, Chap. I.] LO.IX FOR USE. §§ 1870-1886 1. When the tiling is in danger of perishing, or of losing the greater part of its value; or, 2. "When the lawful charges of the finder amount to two thirds of its value. "This provision is new, and somewhat tx- as set forth in article 1, chapter G, title 7, part tends the powers of the finder of lost goods, 3, i'oliticul Code:" Code commissioners' note. 1870. noio sale is to be made. Sec. 1870. A sale under the provisions of the last section must be made in the same manner as the sale of a thing pledged. Sale of pledge: See sees. 3000, post, et seq, 1871. Surrender of thing to the finder. Sec. 1871. The owner of a thing found may exonerate himself from the claims of the finder by surrendering it to him in satisfaction thereof. "This provision cannot be supported l>y the made responsible for excessive expenses:" citation of any jiositive authority, hut seeins Statement by code coramissiouera. proper, ia order to prevent owners from being 1872. Thing abandoned. Sec. 1872. The provisions of this article have no application to things which have been intentionally abandoned by their owners. CHAPTER III. DEPOSIT FOR EXCHANGE. 1878. Rf'lat ions of the parties. Sec, 1878. A deposit for exchange transfers to the depositary the title to the thing deposited, and creates between him and the depositor the relation of debtor and creditor merely. Deposit for exchanga defined: Sec. 1S18, ante. Loan for exoliauge: iiee post, sec. 1902. TITLE jy. LOAN. ChAPTEU I. LOAX FOR UsE 1884 II. Loan for Exchange 1902 III. Loan op Money 1912 CHAPTER I LOAN FOR USE. 1884. Loan, what. Sec. 1884. A loan for use ia a contract by which one gives to another the temporary possession and use of personal property, and the latter agrees to re- turn the sumo thing to him at a future time, without reward for its use. 1885. Tith^ to property lent. Sec 1885. 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. 1836. Care required of borrowfr. Sec. 188G. A borrower for use must use great care for the preservation in safety and in good condition of the thing lent. 333 §§ 1887-1894 OBLIGATIONS. [Div. Ill, Taut IV, Care reqiiirod of borrower. — He is hound 7S Id. 40. "Whatever care the law requires to use great cure, and is liable for loss occasioned to be given to the priniipal thing loaned is to l)y sliglit ne;^ligeni:e: Scranto}i v. iktxter, 4 bu extende-7. 1903. Same. Sec. 1903. 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 chapter. "This is interposed as a provision necessary to prevent frauds on tliird persons: " Commis* sioners' note. 1904. Title to property lent. Sec. 1904. By a loan for exchange, the title to the thing lent is transferred to the borrower, and he must bear all its expenses, and is entitled to all its increase. This would follow from the title passing to 76; Hurd v. West, 7 Cow. 752; Carpenter v. the borrower, as stated in section l'J02. And Griffin, 9 Paige, cases cited by the commis- 80 Nor/on v. Woodrvff, 2 N. Y. 153; Foiitcr sioners. V. Pettlbone, 7 Id. 433; Mailory v. W'dil'^, 4 Id. 1905. Contract cannot he modifi''d by lender. Sec. 1905. A lender for exchange cannot require the borrower to fulfill his obligations at a time or in a manner different from that which was originally agreed upon. "This follows from the nature of the con- to be controlled and governed by their agree- tract. It is, in fact, simply an executory ex- ment made at the time possession of the loan change, and manifestly just to require parties changes: " Commissioners' note. 1906. Certain sections applicable. Sec. 190G. Sections eighteen hundred and ninety-three, eighteen hundred and ninety-five, and eighteen hundred and ninety-six apply to a loan for exchange. CHAPTER III. LOAN OF MONEY. "Originally, no interest was allowed upon a ing, is universally known as a loan. This use loan of money; but with the progress of l)usi- of the word having obtained so long, it would nesg it became necessary; and the transaction be idle to attempt to change it: " Commission* X'a'cui entered into, although in strictness a hir- ers' observations. 335 §§ 1012-1917 OBLIGATIONS. [Div. Ill, Part rV, 1912. Loan of monpy. Sec. 1912. 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 equiva- lent to that which he borrowed. A loan for mere use is governed by the chap- ter on loan for use. Interest: See sees. 1914 et seq. 1913. Loan lo be repaid in current money. Sec. 1913. A borrower of money, unless there is an express contract to the contrary, must pay the amount due in such money as is current at the time when the loan becomes due, whether such money is worth more or less than the actual money lent. See Code I^., art. 2884. The loan of money section recognizes the existence of the act to differs from another ordinary inutum in this: ns known as the speciKc-contract act, ])rovidecl the identical money is not consumed, but it for in the Code of Civil Procedure of California, passes beyond the control of tlie borrower, and section GOT: Sec. 200; see also sec. 33d7, i'06t: is as incap;ible of being collected and returned, Note bj' commissioners, almost, as if it were actually consumed. This 1914. Loan presumed to be on interest. Sec. 1914. Whenever a loan of money is made, it is presumed to be made upon interest, unless it is otherwise expressl}' stipulated at the time in writing. {Amendment, approved March 30, 1874; Amendments 1873-4, 244; took effect July I, 1874.] Interest. — For a sketch of the early repug- French, G Am. Dec. 188. No usury law was in nance to allowing interest, and a statement of force in California in 1850: Fowler v. Umilli, 2 many principles connected with the subject in Cal. 39. its modern aspect, see the note to Sdlecb v. 1915. Interest defined. Sec. 1915. Interest is the compensation allowed by law or fixed by tho par- ties for the use, or forbearance, or detention of money. [Amendment, approved March 30, 1874; Amendments 1873-4, 245; look effect July 1, 1874.J 1916. Annual rate. Sec. 191G. When a rate of interest is prescribed by a law or contract, with- out specifying the jDeriod of time by which such rate is to be calculated, it is to be deemed an annual rate. "This prevents any misunderstanding in this state the custom most prevalent has been cases of omission, and conforms to the general a monthly rate of interest: " Comuiissioners' custom of borrowing and loaning, though in note. 1917. Legal interest — ComjnUation. Sec. 1917. Unless there is an express contract in writing, fixing a different rate, interest is payable on all moneys at the rate of seven per cent per annum after they become due, on any instrument of writing, except a judgment, and on moneys lent, or due on any settlement of account, from the daj' on which the balance is ascertained, 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. \Amend- inent, approved February 15, 1878; Amendments 1877-8, 87; took effect sixtieth day after passage. ] Rate of iutsrest — The legislature has the 1803, Stats. 1SG7-8, p. 553, was prospective power to impose on debtors the obligation of in its operation, and reduced the rate of inter- paying interest on debts already due: Bea/i v. est on future contracts: ]lliile v. Liiont, 42 Amwlor To., 35 Cal. G24; Lhinni' w M isllct, Cal. 279; riamloLphw Bayne,AAh\.'M\\S. That 50 Id. 244; Cnmm ii;ii v. Howard, G3 Id. 503; a rei)eal of usury laws may opjrat'i rctrospect- and it may prohibit the exacting of interest on ively, see Ewi-U v. Danoa, 2 Sup. Ct. Rep. 413. future contracts unless provided for l)y writing: A change in the rate of interest does not affect Id. So it may reduce the rate. Tlie act of the contract: Aguirre v. Packard, 14 Cal. 171. 336 Title IV, Chap. HI.] LOAN OF MOXEY. §§ 1918-1920 Where the rate of interest is not agreed upon, the court may allow legal intei-est from the time tlie debt became due: Jones v. Gardner, 67 Cal. 641. And so in actions on official bonds for defalcations: Peoplex. Breiifo[]le, 17 Id. 504; SmitJi V. Johnson, 23 Id. 03. Jiut not unless it was understood that some interest was to be paid: Ferret v. Jones, 39 Id. 0C>5; but see sec. 1914, Ktipra. Where interest commences after demand, demand must be made before it can be allowed: JJnller v. Austin, G4 Id. 3. A statement of a mutual account in v.iiiuli interest is charged on both sides is a sudicient writing to bind ih.3 party rendering tiie statement as to the interest he has charged himself wiLh: Fratalovgo v. Larco, 47 Id. 378. Interest in excess of the legal rate will not l)e allowed, ex- cept upon an express agreement in writing: Crosbi/ V. McDermott, 7 Id. 140; Hill v. E:dred, 49 Id. 398; Go'dsmlth v. Sawyer, 43 Id. '239. The law does not fav'or the giving of interest in excess of the statutory rate: iJrosb)/ v. il/c- D"rmott, 7 Id. 140. And subsequent advances do not impliedly carry the same rate of illegal interest stipulated to run upon the original advancement: Marzion v. Pioclie, 8 Iil. 522. The written agreement to pay interest in excess of the statutory rate is to operate prospectively, and so c mstrued will stand: Adams v. llas- Un(]s, Id. 120; but au agreement to pay such excessive rate on an indebtedness incurred prior to the contract is void for want of coa^ sideration as to the excess of interest up to tho date of the agreement: Id. But the require- ment that a contract for more than the legal rate of interest must be in writing does not prevent equity from correcting a contract as ta the rate of interest: llathaivaj v. Brud)/, 23 Id. 121 ; and for the circumstances under which a parol contract for excessive rate will be en- forced, see Hidden v. Jordan, 28 Id. 301. The rate (ixcd in a promissory note is not a contract in writing between tlie niahcr ami suielies: Smith V. Johnsin, 23 Id. 03. The interest is to be paid although the creditor had money of the debtor in his hands, if the same was not applied to the interest: LaufjhUn v. IlVi^/i/, 03 Id. 113. lutSrast after maturity. — Moneys after they become due bear interest at the rate agreed upon in the written contract, although nothing be expressly said about interest after maturity: Koldcr v. Smith, 2 Cal. 597. For a carel'ul consideration of this question, see a recent decision by the supreme court of Indiana; Shaw V. lih/h;/, 2 Journal of Banking. 113, where the above view is adopted, and prior cases in tliat state are overruled. Interest oa.iudsiasnts: See infra, sec, 1020^. Compounding interest : See inj'ra^ sjuc,. 1919. 1918. Same. Sec, 1918. Parties may agi'ee in wntin<]f for the payment of any rate of intejs est, and it sball be allowed, according to the terms of the agreement, until the entry of judgment. Stats. 1808, 553, sec. 2; Stats. 1870, 099, as may be agreerl upon: Hinds v. Mnrmoleio^. eer. l._ National banks may, by reason of this sec- tion, charge and receive such rates of interest 00 Cal. 229; Farmers' Nat. Stover, Id. 387. Gold Bank v. 1919. Inleresl becomes part of principal, when. Sec. 1919. 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 jDunctually paid it shall become a part of the principal, and thereafter bear the same rata of interest as the principal debt. CompoundJig interest: See the note to Se/leck V. French, Am. Dec. 1S5. Tho inter- est was com[>ounded for non-payment of the interest payal)le monthly in Pai/e v. Willinms, 54 Cal. 202. For the rule as to the computa- tion of intei'est where partial payments have been made, see Fstate of Dew, 35 Id. 092. Where parties are in the liabit of making periodical statements of account without charg- ing interest on the ascertained balances, such settlements are dcemtd conclusive, r,nd the courts will not go behind them to allow inter- est, except in the case of mistake or fraud: Chandler v. Peop'^s Snrinrjs Bai./:, 00 Cal. 401. Siirae rate as principal d3bt. — In eom- poiuuliiig interest, greater rate than that o;i tlia principal debt cannot be allowed: Slvcikjs and Loan Socitti/ v. llorlon, 03 Cal. 105. 1920. Interest on judgment. Seo. 1920. Interest is payable on judgments recovered in the courts of this? state at the rate of seven per cent per annum, and no greater rate, but such interest must not be compounded in any manner or form. [Amejidment, approved March 30, 1874; Amendments 1873-4, 245; tuulc effect Juhj 1, 1874.] Interest on judgments. — "This conforms which did not disclose, and were not proved to to the amendment of the act of 1808, 533, as made iu 1870, 099, sec. 1:" Commissioners' note. At common law, judgments did not carry in- terest: Thomson v. Monrow, 2 Cal. 99; and it has been so \vAA with respect to judginents of this state, and to judgments of other states, Ctv. Code— 22 337 carry, interest: Cacnider v. Gnitd, 4 Id. 251. But in Emeric v. Tanrut, Id. 155; Corcoran v. Doll, 32 Id. 82; Lane v. Gluchavf, 33 I<1. 288; anil in Mount v. Chajnnan, 9 Id. 294, it was de- cided that jmlgments on contracts bearing in- terest eii-ried t!ic ^:ame interest as the contracts. Since the act of 1870, Stats. 1870, 099, interest §§ 1925-1928 OBLIGATIONS. [Div. Ill, Part IV, is allowable on all money jnrlgments: Bdl v. Knowles, 45 Id. 193; JJoitfjherd/ v. Miller. 3S 1(1. 548; \Vh,tcher v. Webb, 44 Id. 127; h'an- ihlpit y. Bnyiie, Id. 3(J6. It had been held that a jud^'uient for use and occupation did not draw interest: Oshornv. //eMdrirt^oit, S Id. 32. But in Bar/ce v. Car rut hers, 31 Id. 4G7, a judg- ment for damages in a forcible entry and de- tainer case carried interest. So also street as- sessment judgment: Ilimmelman v. Oliver, 34 Id. '24(j; degree in foreclosure on sum due: Whitcher v. Webb, 44 Id. 127; and all final money judgments: Clarlc v. Dunam, 46 Id. 204. The judgment bears interest only from the time it is pronounced: Bcbtud v. L. ct L. Ins, Co., 30Cal. 78. Compound interest never to be allowed on judgments: See application of principle to an action against an administrator in a judgment recovered against the decedent during his life- time, and rejected as a claim by the adminis- trator: Qaivcy V. Hall, la Cal. 07. Interest as damases; Bee jjost, sec. 3287. TITLE V. HIRING. Chapter I. Hiring in General 1925 II. Hiring of Real Property 1941 III. Hiring of Personal Property 1955 CHAPTER I HIRING IN GENERAL. ."1925. Hiring, lohat. Sec. 1925, Hiring is a contract by wliich one gives to another the temporary ' possession and use of property, other than money, for reward, and the latter . ajrrees to return the same to the former at a future time. Hirine; personalty: See post, sees. 1955 et - seq. HirinSi or locatlo coivdactio, was divided at ■ the civil law into: 1. The hiring of a thing for ■use [locatio rei); 2. The lii.ing of work and ; labor {locatio o peris /aciendi); 3. The hiring of care and service to be performed or bestowed on the thing delivered (locatio cuHtodice); and 4. The hiring of the carriage of goods from one place to another (locatio operis niercium vehen- darum): Storv on Bailm., sec. 8. 11926. Prodiids of thing. Sec. 1923. The products of a thing hired, during the hiring, belong to the hirer. .1927. Quiet poi^scssion. Sec. 1927. An agreement to let upon hire binds the letter to secure to the : hirer the quiet possession of the thing hired during the term of the hiring, .against all persons lawfully claiming the same. Duty of letter of building in this respect, See Schouler on Bailments, p. 148; and Story See post, pec. 1041. on Bailments, sec. 387, as to the implied war- Duty of latter of personalty likewise: See ranties on tlie part of the letter. post, sec. 1955. 1928. Degree of care, etc., on part of hirer. Sec. 1928. The hirer of a thing must use'ordinary care for its preservation in safety and in good condition. Degree of diligence. — This bailment being one of mutual benefit, the law demands of the hirer ordinary ddigence only for the preserva- tion and safety of the thing bailed: Smith v. Simms, 51 How. 305; that is, such care and diligence as is usual with men of ordinary dis- cretion in managing their own property: Id.; Millon V. Sili>ibury, 13 Johns. 211; Maynard V. Buclc, 100 Mass. 40; Jackson v. Robinson, IS B. Mon. 1 ; Colliiis v. Bennett, 4G N. Y. 490; Chamberlin v. Cobb, 32 Iowa, 6 1 ; therefore, in- tliQ bailee's not returning the article as it was received: Watlim^v. Roberta, 2S Ind. 1G7; Hy- landv. Paid, 33 Barb. 241; Fidd v. Brackett, 5G Me. 121; McEvers v. Steamboat Snnfnse3 construed in I'an Every v. Uart of the landlord to rep lir. B.it lieariugin return for such restriction, the privilege of mind tiiat at the common law no sacii covenant vacating the [treiiiises without further liability was implied, and reading tha two sections upon the lea?e." The judgment for the plaint- [1041 and 1942] together, the intent seems clear iif, given in tlie lower court, was affirmed. 1942. Wlien leksee may make repairs, etc. Si:c. 1942. 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 Bame 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 repair;i from the rent, or the lessee may vacate the premises, in which case he shall ba discharged "from further payment of rent, or performance of other con- ditiinis. [ Amend mciU, approced March 30, 1874; Amendments 1873-4, 24G; took eJfeclJuli/ 1, 1874. J 340 Title V, Chap. II.] HIRIXG OF REAL PROPERTY. §§ 1943-1947 • When lessee may repair at lessor's ex- malce the repairs needed, and is also authorized pense. — lu the section as originally proposed to make them himself when tliey do not recjaire tiiere was neither any limit to the amount of an expenditure exceeding one month's rent, repairs nor did it ci-ntain the above alterna- which would seem to be all that with justice live. In proposing tliis amendment, tlie code to the landlord could be allowed to the tenant. " examiners ur;4eil: '• Tlie present section author- The observation of the code commissioners izcs tlio tenant to repair dilapidations, however to t'le original section — an observation losing great, e\ en tlmngli tliey might require the re- none of its force by reason of the amendment — construction of half of the premises, and deduct is: '"The rules prescribed in the precedin-^ sec- :the expenses of the repairs from the rent, tiou necessitate this." When buildings have been nearly destroyed by See tiie facts in Saviiifja L. Soc. v. G>'rich'e)>, fire, or an eartlicjuake, the exercise of this right C4 Cal. 5J0, where a letter from the vice-presi- vould jirove of serious injury to tlie landlord, dent of the biuli was held not to empower the Tiie tenant is given t!ie privilege of vacating tenant to charge the bank with cost of repairs .the premises m case tiie landlord neglects to iu excess of the rent. 1943. T'Tm of hirinrj loJi^n no limit is fixed. Sec. 11)43. A liiring' of real property, otlier tlian loclging3 and dwellin;^- liouses, in places where there i.s no usage on the subject, is presumed to be for one year from its commencement, unless otherwise expressed in the hiring. Torm of hiring. — "This section adopts a In smie of the larger cities, such as New York, now, but obvioiialy convenient if not necessary, it is considered to operate well, and may every- ru'.e as to the time for which tlie hiring is made, where:" Commissioners' note. 1944. Ilirinfj of lodgingH for indffinile term. Skc. 1944. A hiring of lodgings or a dwalling-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 hiring at a monthl}' 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. 1945. Pf'TLewal of lease bij lessee's continued posS''ssion. Si:c. 1045. 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. R^U3■^wal. — Prior to the adoption of this sec- Covenant for the construction of buildings tion, ii, at llie termination of a lease fora year, contain"d in tiie original lease is not to be cou- •\vith lent payable montidy, the landlord re- sidek-ed as renewed wicii the renewal of t'le ccived lent for the new mo:ith, it was not lease: J/iH v. Bfa'ty, Gl Cal. '2d'l. In Morku deemed to create I)y implication a renewed v. /I'yt//, G3 Id. 107, the tenant erected a build- Icse for a year: IVnmnihenj v. Myer.% 32 Cal. ing on tlie leased premises, and at the exij:ra- 93; Sl(i'irotectioa as against the unuotilied landlord. .342 Trrut V, Chap. III.] HIUmG OF PERSONAL PROPERTY. §§ 1950-1957 1950. Letting parts of rooms forbidden. Sec. 1950. One who hires part of a room for a dwelling is entitled to the whole of the room, notwithstanding any agreement to the contrary; and if a landlord lets a room as a dwelling for more than one family, the person to whom he first lets any part of it is entitled to the possession of the whole room for the term agreed upon, and every tenant in the building, under the same landlord, is relieved from all obligation to pay rent to him while such double letting of any room continues. "This provision is intended to prevent will be a punishment that could he enforced by one of tiie chief abuses of tenement-houses, way of defense to an action therefor:" Corn- Mere penalties, whether civil or criminal, are luissioners' statement, not likely to be enforced. But the loss of rent An Act concerning lodging-houses and sleeping apartments loithhi the limits of incorporated cities. [Approved April 3, 1876; 1875-6, 7J9.] Kumher of cnluc feH for each person. Section 1. Every person who owns, leases, lets, or hires, to any person or persons, any room or apartment in any building, house, or other structure, within tiie limits of any incorporated city, or city and count}', within the state of California, for the purpose of a lodging or sleeping apartment, which room or ajiartment contains less tliaii five hundred cubic feet of K^iacc, in the clear, for each person so occupying such room or apartment, shall be deemed guilty of a misde- meanor, and sliall, upon conviction thereof, be punished l)y a line of not less tiian tifty (50) dol- lars or more than live hundred (500) dollars, or by imprisonment in the county jail, or by both such lino or imprisonment. Misdemeanor. Sec. 2. Any person or persons found sleeping or lodging, or who hires or uses for the pnrposo of sleeping in or lodging in any room or apartment which contains less than five hundred (jCO) cubic feet of space, in the clear, for each person so occupying such room or apartment, shall be d 'emed gudcy of a misdemeanor, and shall, upon conviction, be punished by a line of not less than ten (10) or more than fifty (50) dollars, or by both such fine and imprisoumeut. BuUdiiigx exi'ep'e'l. Sfic. 3. It thall be the duty of the chief of police (or such other person to whom the police powers of a ciiy are deiegated) to detail a competent and qualified otlicer or ollicers of the regular force to examine into any violation of any of the provisions of this act, and to arrest any person miiity of any such violation. S£C. 4. The provisions of this act sliall not be construed 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. C. This act shall take effect and be in force from and after its passage. CHAPTER III. HIRING OF PERSONAL PROPERTY. 1955. Obligrttiovs of letter of personal properly. Sec. 1955. 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. See ante, sec. 1927. The commissioners cite for faulty condition of his hired teams: Se» Story on Bailment, sec. 3S3, as furnishing a Jlorne;/ v. Mea/dn, 115 Mass. 32o; Uodley v.. statement 21; Strahlendorf V. /.'oseut/ial, nO Wis. 674-, jVoy/es v. Hmith, 28 Vt. 59, and the cs.scs cited iij'ra. Put it is only sucli risks as are necessarily .and usually incidental to the em- ployment that ai-e thus assumed: Baxter v. J'oheri.-t, nupra. Aside from the gcnei'al nature of tljc business itself, features ( f tlie particular ^ ^ employment may add to the danger, and the ployment of the respective employees; nor does knowledge or means of knowledge of such lea- ib give any effect to the circumslanee that the turcs oil tlie part of the employee enters into fellow-servant through whose negligence the the fixing the employer's liability. The rule in i:;jury came was the superior of the plaintiff in this particular is thus stated by Thoinpnon. 2 the general service in wliich they were in cora- Negligenee, ji. 1008: "If the servant, before lie mon engaged." But this ruling was subse- cnrcrs the service, knows, or if ho aTterwards qucntiy departed from in Beetion. v. Green discovers, or if by the exercise of oidinary ob- ecrvation or reasonable skill ami diligence in Lis department of service ho may discover, that the buiieiing, premises, machine, appliance, or fellow-servant in connection with whicli or with wlioni he is to labor is uns.ifc or ui.lit in Mountain G. M. Co., 57 Id, 20, and a superin- tendent of a mining company was deemed not to 1)0 a fellow-employee with tlie plaintiff in the sense intended by section 197!J; see also DuPrali V. Lick, 88 Id. GJl. Cut the rule ex- empting the employer, here a railroad com- any particular, and if, notwithstanding such pany, from liability for injuries to an employee knowledge* or means of knowledge, lie \olun- tarily enters into or continues ia the nmploy- mcnt wi hout objection or complaint, he is deemed to assume the risk of the danger thus know n iv discoverable, and to waive any claim for d luKiges .against the master i;i case it s'lall result in injury to him." In support of this Etatement, lh(! author refers to a host of decis- ions i.i difTerent states, to whicli Soivdeu v. Idaho M. Co., 55 Cal. 44.'>; and Sireenei/ v. C. P. U. U., 57 Id. 15, may be addetl. lie makes fro;n the negligence of a felow-employee has no application where the negligent and unskill- ful manner in which the ror.d was constructed was the occasion of the injury: Traslc v. Cal. S. n. n. Co., G.3 Id. 90. For a comprehensive statement of the em- ployer's liability to .a servant for injuries re- sulting from negligence or misconduct of a fel- low-servant, see the note to Mnrrai/ v. S. G. nadroad Co., 30 Am. Dec. 279-290. 1071. Employer to indemnify for his own negligence. Si:c. 1971. An employer must in all cases indemnify Lis employee for losses caused bj' tbe former's want of ordinary care. 345 §§ 1975-19S1 OBLIGATIONS. (Dnr. III. Paet IV, ARTICLE III. OBLIGATIONS OF THE EMPLOYEE. 1975. Ditties of gratuitous employee. Sec. 1975. One who, without consideration, undertakes to do a service for another, is not bound to perform the same, but if he actually enters upon its pei'foriijance, he must use at least slight care and diligence therein. Gratuitous employee — The commissioners Sarvice ■vT-itliout emplojrment: See post, likon tlio ilu'.ies of this employee to those of a sec. 2078. gratuitous mandatary. ObligationsofsratuitouscarrierrSec. 20S9. 1976. Same. Sec 1976, One who, by his own special request, induces another to intrust him with the i:)erformance of a service, must perform the same fully. In other cases, one who undertakes a gratuitous service may relinquish it at any time. Compare with section 1888. 1977. Same. Sec. 1977. A gratuitous employee who accepts a written power of attorney must act under it so long as it remains in force, or until he gives notice to his employer that he will not do so. "Duty of gratuitous employee: Code La., his hands a power which he may use to the sec. 2971. Tliis provision is new to the com- detriment of his principal, and misleads the mon law, but is founded upon justice. By latter into the belief that he will use it for his retaining the instrument, the attorney keeps in benefit:" Commissioners' note. ^ 1978. Duties of employee for reward Sec. 1978. 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. Employee to use ordinary care. — He is skill as he possesses: Sec. 19S4. For the em- bound to exurcise a reasonable degree of skill, ployce's liability for his culpable negligence, se© imless his employer knows of his want of skill: sec. 1990, post. Sec. 1983; and is always bound to use such 1979. Duties of employee for his own benefit. Sec. 1979. 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. 1980. Contracts for service limited to two years. Sec. 1980. A contract to render per.^oual service, other than a contract of apprenticeship, as provided in the chaptsr on master and servant, cainot be enforced against the employee beyond the term of two years from the com- mencement of sei'vice 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. "This is a new but obviously just provision: " Cole commissioners' note. Master and servant: See post, sec. 2009; and as to apprenticeship, see a)ite, sees. 264 et seq. )( 1981. Employee, duty of. Sec. 1981. An employee must substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or utdawful, or would impose new and unrea- sonable burdens upon the employee. \ Anii^n J ment, approved March 30, 1874; Amendments, 1873-4, 240; took effect Jidy 1, 1874.] Ooedieaoe required from factor: Sec. 2027. 340 Title VI, Chap. I.] SERVICE WITH EMPLOYMENT. §§ 1982-1990 1982. Employee to cnvfomi to uange. Sec. 1982. Au employee must perform his service in conformity to tbe usage of the place of performance, unless otherwise dii'ected by his employer, or unless it is impracticable, or manifestly' injurious to his employer to do so. Employee to conform to usage. — That an instructions to the contrary, see Story ou agent must coiiforiu to tlie known usa'je appli- Agency, sec. 199. cable to the jjarticular agency in the absence of 1983. Degree of skill required. Sec. 1983. An employee is bound to exercise a reasonable degree of skill, unless his employer has notice, before eiuploying him, of his want of skill. Employes skno'wu'want of skill. — Where trilmte the loss or injury to his own rashness or the employee is known not to ponsess the skill folly or supine negligence:" Story ou Bailua., rc^uiruJ, an employer "ought properly to a,t- sec. 43J. 1984. Mud use tildll. Sec. 1984. An emploj-ee is always bound to use such skill as he possesses, BO far as the same is required, for the service specified. [Amend mi^nt, approved March 30, 1874; Amendments 1873-4, 247; look rffecl July 1, 1874.] That the employee may employ others to do contracted for, see Le t v. Wilson, 24 Cal. 308; tiie work where his personal attention is not compare ^jos^, sec. 1939. 19S5. What belongs to employer. Sec. 1985. Everything which an employee acquires by virtue of his employ- ment, except the compensation, if any, which is due to him from his employer, belongs to the latter, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment. 19SG. Duty to account. Sec. 19SG. An employee must, on demand, 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 notice to his employer of everything which he receives for his account. 1887. Employee not bound to deliver icilhout demand. Sec. 1987. An employee who receives anything on account of his employer, in any capacity other than that of a mere servant, is not bound to deliver it to him until demanded, and is not at liberty to send it to him from a distance, without demand, in any mode involving greater risk than its retention by the employee himself. Servant to pay over ■without demand: See sec. 2014. 1983. Preference to employer's interests. Si-c. 1988. Au employee who has any business to transact on his own account, similar to that intrusted to him bj' his employer, must always give the latter the preference. [Amendment, approved March 30, 1874; Amendments 1873-4, 247; took iv. Ill, Part IV, einploj'er is liable to liim, if ilie service is not gratuitous, for the value of such services only as arc properly reuJereJ. 1991. Sarvivlinj emploijre. Sec. 191)1. Where service is to be rendered bj' two or more persons jointly, and o!iG of tliem dies, the survivor must act alone, if the service to be rendered is such as ho cau rightly perform without the aid of the deceased person, but not otherwise. 1992. Cnufuh'nfinl emploiimenl. Sec. Vy.V2. The obligations peculiar to confidential enaployments are defined in the title on trusts. Coaiicl3Uti.;I eniploymsuts: See title on trusts, post, sees. 2215 et seq. ARTICLE IV. TER'jnXATION OF EMPLOYJIENT. 1996. Trr/ninafion b>j death, etc., of emplnijer. Sec. 199G. Every employ:iieut in which the power of the employee is not couj)led with an interest in its subject is terminated by notice to him of: 1. The death of the employer; or, 2. His legal incapacity to contract. Termination of employmont: See next sec. 40r), and is-obviously just:" Note-of -coin. section. "This section alters tho common i:i\v niissioiiL'is. l)y continuing tlie power until t!ie agint lias Tormlnition of agency: See j)08t, seca. notice of t!io principal's cliange of condition. 2355 ct secj^. Such a rule is advocated by Stoiy, Agency, 1997. Emploijmmt, Jiow li'rminated. Sec 1997. Everj' employment 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 legyl incapacity to act as such. Term-mtion of employment: See last section. Termui .tion of agsucy generally: See sec. 2355, post, et seq. 1938. Continuance of service in certain cases. Sec. 1998. An employee, unless the term of his service has expired, or unless he has a right to discontinue it at any time without notice, must continue his service after notice of the death or incapaeit}' of his employer, so far as is necessary to protect from serious injury the interests of the employer's successor in interest, until a reasonable time after notice of the facts has been commu- nicated to sucli successor. The successor must compensate the employee for Buch service according to the terms of the contract of employment. 1999. Tcrniinatiun at xoill. Sec. 1999. An employment having no specified term may be terminated at the will of either party, on notice to the other, except where otherwise provided by this tide. Master may discliarge servant at anytime and may eject the servant by force if necessary: after notice vvliorc there is no term of service, JJe Uriir v. MiiUurn, 1 Cal. 450. 2000. Termination In/ employer for fault. Sec 2000. An employment, even for a specified term, may be terminated at any time by the employer, in case of any willful breach of duty by the em- 34S 2005. Sale Must Be by Auction. The sale by pledgee of property pledged, must be made by public auction, in the manner and upon the notice [of sale of personal property •»T i'.'n; llyan v. Dai/ton, 25 Conn. ISS; Clarlc V. Mancheder, 51 N. K. 501; or 3. Con- sider tlic contract as still sub.'sisting, and at the expiration of the term sue for the entire sum agreed to be paid: Fowler v. I^rout, 21 Ala. 194; «raw.s.s v. Mecrtief, Gl Id. 299; R-ijersx. Parham, 8 Ga. 190; Colburn v. Woodworth, 31 B:irb. 331; lleim v. Wo'f, 1 E. D. Smith, 70; Braddiaw v. Branan, 5 Picii. L. 4G5. In tlie note to De Camp v. //ewift, 43 A;n. Dec. 205, above referred to, this subjeet and many of l!ie questions arising out of it are also dis- cussed. Lloasuro of damage -wrhen employee ia VTTongfully discharged: See the note to De Camp V. Hewitt, 43 Am. Dec. 207; ('ox v. Mc- Lauijhlin, 54 Cal. G05; Webster v. Wade, 19 Id. 291. 2003. Compensation of employee leaving for cause. Sec. 2003. An employee who quits tho service of his employer for good cause is entitled to such proportion of the compensation which would becoma due in case of full performance as tho services which he has already rendered bear to the services which ho was to render as full perfoi'mance. Terminating employment by cmplDyes: Sea avpra, sec. 200J . 310 §§ 2009-2012 OBLIGATIONS. [Div. m, pabt rv, CHAPTER 11. PARTICULAR EMPLOYMENTS. Article I. Master ant> Servant « 2009 XL Agents 2019 III. Faoiors 2026 IV. Ship-masters 2034 V. Mates and Seamen 2048 VI. Ships' Managers 2070 ARTICLE I. MASTER AND SERVANT. 2009. Servant, what. Seo. 2000. A servant is one -who is employed to render personal service to nis employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his mastei*. Servant defined — The code commissioners have this note: In personal relations — "domestics" — those who receive wages and who are lodged anl fed in the house of another and employed in his service. Sucli servants are not particn'arly recognized by law; they are menial servants: 1 Bla. Com. 3_'4; Wood Inst., 53; see 2 Boiiv. Law Diet. 513, tit. Servants. The title "blaster and Servant," ante, sees. 2G4-27i3, inclusive, relates exclusively to apprentices. The right of the master to their (servants') services in every respect is grounded on t!ie contract between them: 2 Bouv. Law Diet. 513. Bouvier also says: " Laborers, or persons hired by the day's work, or any longer time, are not considered servants," and gives an ar- ray of authorities in support of his position: Id, It will 1)3 seen, however, by tlie next section that the code changes the understanding or definition of (he term "servant." The distinction maile at the common law in the various grades of servants will ]>o found very simply and clearly explained in Wood on Master and Servant, 2 et seq. Schoulcr on Dom. Rel., sec. 4.")8, also has a similar statement. Employer and employee: See, generally, sees. 19G5 et seq. ObligationB of employer: Sees. lOGOetseq. Obligations of employee: Sees. 1975 et seq. 2010. Trrm of hiring. Sec. 2010. 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 j'ear; a hiring at a daily rate, for one day; a hiring by piece-work, for no specified term. Term of hiring. — The same principle in ical hiring, where the evidence shows an ar- regard to term of service as is laid down in tlie rangement for a difiPerent period: Tattcrson v. above section is asserted in Beach v, MaUhi, Suffolk Mfij. Co., 103 Mass. 50; Prentiss v. 34 N. J. L. 343. But the periodical pay- Ledyard, 28 Wis. 131. ment is not conclusive as to the period- 20U. Same. Sec. 2011. 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. Terms of lilrins — "See Fawcett v. Cash, 5 Barn. & Atlol. 904; see also the rule in sees. 2010, 1944, ante; but see De Briar v. Mlattirn, 1 Cal. 450. Nominal damages only, if any, could be recovered in such case: Id.; fixed term: See Webder v. Wade, 19 Id. 291; con- tract entire: Hutchinson v. ire^wore, 2 Id. 311; slight evidence of assent will enable one to recover on part performance of service: Hogan V. Ti'dow, 14 Id. 255:" Note of coinniission- ers. Custom bears very strongly upon tlie inter- pretation of all contracts of service: Lyon v. George, 44 Md. 295. 2012. Renewal of hiring. Sec 2012. "Where, after the expiration of an agreement respecting the wages and the term of sendee, the jDarties continue the relation of master and servant, they are presumed to have renewed the agreement for the same wages and term of service. 350 Tm.EYI, Chap. IT.] PARTICULAR FrMrLOYMEXTS. §§2013-2021 Renewal of contract of service. Nichd- servant to recover upon a quantum meruit in son V. J'U'hiii, r> Cal. 474, supports this sec- such case, tion, aiul decides that it is error to allow the 2013. Time of service. Sec. 2013. The entire time of a domestic servant belongs to the master; and the time of otLer servants to such an extent as is usual in the business in which they serve, not exceeding' in any case ten hours in the day. Time of servants. — All the services reu- ngreements [for service] at not more than ten dered by one who receives a regular salary, of liours; " Commissioners' note. O.i public work, the same nature as his regular duties, are pre- the constitution of 1S79 declares tliat "eight Bumcd to bo paid for by the salary: Cany v. hours shall constitute a legal day's work: " Hailed-, 9 Cal. lOS. Art. 20, sec. 17. Whetlier this provision will be L3gal day's v7ork. — "The law supplies the construed to permit the laborer to do extra work number of hours of labor implied in all such for extra pay, see Draw v. Smith, 38 Cal. 323. 2014. Servant to pay over without demand. Sec. 2014. A servant must deliver to his master, as soon as with reasonable 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. Eniployea not bound to deliver to employer ■without demand: See sec 1987. Fraudulent appropriation by servant is eiubezzlemeut: Sec. 508. 2015. When (servant may be discharged. Sec 2015. A master may discharge any servant, other than an apprentice, whether engaged for a fixed term or not: 1. If ho is guilty of misconduct in the course of his service, or of gix>ss im- morality, though unconnected with the same; or, 2. ir, 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 tl'C commencement of his service, of such a nature that, if the master had known or contemplated it, he would not have so employed him. DIscliavsing servant for cause — A ser- For a collection of English decisions upon the vant may Ijctiischarged lor insolence and willful right to discharge a servant, see Schouler's disoljedicnco cf orders: Beach v. Mulli)i, 5 Vt. Dom. Rel., 3d ed., sec. 462. 343; lor indecency and immorality: Weaver v. Termination of employment: See sec. J-Ia's'H, 1 111. Api'. TmS; for habitual druuken- 2001. ness: '(','oiif^ol's v. Ocarhart, 31 Mo. r)S.5; for slan- Compensation of employee dismissed for dering llio in atcr, an I spitefully suing him on caiiSR: See aiHe, sec. 2002, and note, groun.lless charges: Brink v. Fay, 7 Daly, JjG2; Remedy for vwTonsful dismissal: See same and see JlcCorinick v. Demari/, 10 Nev. 515. note. ARTICLE n. AGENTS. 2019. Agent to conform to his authority. Sec 2019. An agent must not exceed the limits of his actual authority, as defined by the title on agency. /•.genoy: Sees. 2205 et seq. The code com- thority is specially defined in the title 9 of misaioncrs refer to section 2295, and say: "Such this part." person is tlie subject of this article. His au- ActUcd authority: Sec. 2316, post. 2029. Ilhist keep his principal i) formed. Skc 2020. An agent must use ordinary diligence to keep his principal informed of his acts in the course of the agency. 2021. Collecting agent. Sec 2021. An agent employed to collect a negotiable instrument must col- lect it promptly, and take all measures necessary to charge the parties thereto, in case of its dishonor; and if it is a bill of exchange, must present it for acceptance with reasonable diligence. 351 §§2022-2035 OBLIGATIONS. [Dnr. Ill, Part IV, 2022. IiefponnbUlly of subagrnt Sec. 2022. A mere ageut of an agent is not responsible as sncli to the prin- cipal of the latter. ARTICLE III. FACTORS. 2026. Factor, what. Sec. 202G. A factor is an agent who, in the pursuit of an independent call- ing, 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. Faotor's authority: Soo sees. SP.GS, 2360. Factor's power to plodg3 priaoipal's good3: See sees. 23G8, 299f. 2027. Obedience required from factor . Skc. 2027. A factor must obey the instructions of his principal to the same extent as any other employee, notwithstanding tiwy advances he may have made to his principal upon the property consigned to him, except that if the principal forbids him to sell at the market price, he may nevertheless sell for his reim- bursement, after giving to his principal reasonable notice of his intention to do so, and of the time and place of sale, and proceeding in all respects as a pledgee. Obedience required from employees pal forbids him to sell: Marjiehl v. Goodhue, generally: ,Sec. I'JSl. supra. The exception does not extt-nd to an Factor must obey instructions as any other order to sell, oven thouj^h for leas than ad- employee: See Ecans v. Jioot, 7 N. Y. 18G; vauces: Bell v. Palmer, nupra. IIu may still notwithstaniling advances to principal: Blot v. sell to leimbursc liimself, ou giving notice* Bokeau, 3 Id. 78; Marfieid v. (loodkue. Id. G2; Murjidd v. Goodhue, supra. Bell v. Palmer, G Cow. 128; except his princi- 2028. Sales on credit. Sec. 2028. A factor may sell property consigned to him on such credit as is usual; but having once agreed with the purchaser upon the term of credit, may not extend it. Authority to sell on credit. — Duty of the factor to inquire into the responsibility of th purchaser: See sec. 2308. 2029. LiabiUhj of factor under guaranfi/ commission. Sec. 2029. A factor who charges his principal with a guaranty coramissio:i upon a sale thereby assumes absolutely to pay the price when it fails 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. 2030. Factor cannot relieve himself from liabililrj. Sec 2030. A factor who receives property for sale, under a general agree- ment or usage to guarantee the sales or the remittance of the proceeds, cannot relieve himself from responsibility therefor without the consent of his principal. ARTICLE IV. SHIP-MASTERS. 2034. Appointment of master. Sec. 203J:. The master of a ship is appointed by the crwner, and holds during his pleasure. 2035. When must be on board. Sec 2035. The master of a ship is bound to be always on board when enter- ing or leaving a port, harbor, or river. 352 Title VI, Chap. II.] PARnCULAR EMPLOYMENTS. §§ 203G-2048 2036. Pilotage. Sec. 203G. On entering or leaving- a port, harbor, or river, the master of a Bhip must take a pilot if one offers himself, and while the pilot is on board, the navigation of the ship devolves on him. Regulations respecting pilots: See Pol. Code, sees. 2429-2491. 2037. Poiver of master over seamen. Sec. 2037. The master of a ship may enforce the obedience of the mate and Beamen to his lawful commands by confinement and other reasonable corporal punishment, not prohibited by acts of congress, being responsible for the abuse of his power. 2038. Power of master over passengers. Sec 2038. The master of a ship may confine any person on board, during a voyage, for willful disobedience to his lawful commands. 2C39. Lnpressiiig private stores. Sec. 2039. 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 payment of their value, or givinf» security therefor. 2040. When may abandon the ship. Sec. 2040. The master of a ship must not abandon it dm-ing the voya'^e' without the advice of the other officers. 2041. Duties on abandonment. Sec 2041. 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. 2042. Wlien master cannot trade on his own account. Sec. 2042. 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 roust account to his employer for all profits thus made by him. 2C43. Care and diligence. Sec 2043. 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 hia negligeuco, however slight. 2044. Anthoritii of master. Sec 2044. The authority and liability of the master of a ship, as an agent for the owners of the ship and cargo, are regulated by the title on agency. Agency iu general: See seca. 229.") ct scq. Respondentia, master may Lypothecatd Eoctomry, master may hypothecata upou: fcieca. JOJS ct seq. upon: bee sees. 3019 et scq. ARTICLE V. MATES AND SEAMEN. 2048. Mate, xohat. Sec. 2048. The mate of a ship is the oCScer 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 lost any of his rights ai mate. Ciy. Code— 23 S53 8§ 2049-2058 OBLIGATIONS. [Div. III. Pakt IV, 2049. Seamen, xcliat. Sec. 2040. All persons employed in the navigation of a sliip, or upon a- voyage, other than the master and mate, are to be deemed seamen within the provisions of this code. 2050. Mate and seamen, hoio engaged and discharged. Sec. 2050. The mate and seamen of a ship are engaged by the master, and may be discharged by him at any period of t)ie voyage, for willful and persistent disobedience or gross disqualification, but cannot otherwise be discharged be- fore the termination of the voj-age. 2051. Unseaicorthy vessel. Sec 2051. A mate or seaman is not bound to go to sea m a ship that is not jBeaw.orthy; and if there is reasonable doubt of its seaworthiness, he may refuse "to proceed until a proper survey has been had. Seaworthiness dsiiued: Sec. 2CS2. 2052. Seamen not to lose wages or lien by agreement. Sec. 2052. A seaman cannot, by reason of any agreement, be deprived of hia Jien 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. Wages in case of loss of ship: Sec. 2058. '2053. Special agreement with seamen. Sec 2053. No special agreement entered into by a seaman can impair any of this rights, or add to any of his obligations, as defined by law, unless he fully understands the efi"ect of the agreement, and receives a fair compensation there- for. :2054. Wages depend on freightage. Sec 2054. Except as hereinafter 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. 2055. When wages, etc., begin. Sec 2055. 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 agi'ee- ment for his beginning work, or from his presence on board, whichever first . happens. : 2056. Wages, where voyage is broken vp before departure. Sec 2056. "Where a voj^age is broken up before departure of the ship, the . Beamen must be paid for the time tbey have served, and may retain for their indemnity such advances as they have received. 2057. Wrongful discharge. Sec 2057. When a mate or seaman is wrongfully discharged, or is driven to leave the ship by the cruelty of the master on the voyage, it is then ended with respect to him, and he may thereupon recover his full wages. 2058. 'iVages, when not lost by wreck. Sec 2058. 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. 354 Title VI, Chap. H.] PAHTICULAR EMPLOYMENTS. S§ 2059-2070 Wages in caise of v^reck. — "Thisprovis- her cargo, or as mnch as can be saved, ion is sniistuntiallj' enacted in Englanil, Stats. 'Freightage is the mother of wages.' This 7 &. 8 Vict., c. 112, sec. 17, making the seaman's maxim is virtually overri.Ulen by this section: right, hoM'ever, absolutely dependent upon the See 2 Pars. Mar. Law, 589, 590. Here, too, otHcer's ccrtilicate. In case of wreck or the question of salvage and the right of seamen other peril, the seamen are bound to stay by thereto is discussed. See notes, also:" Com- the vessel and do all they can to save her or missiouers' note. 2059. Certificate. Si;c. 2059. A certificate from the master or chief surviving officer of a ship, to the effect that a seaman exerted himself to the utmost to save the ship, carg'c, and stores, is presumptive evidence of the fact. "This section is a necessary sequence to the terested witness and the person vested with preceding, and shouhl be recognized as properly agency and authority to direct the work." jiroviding presumptive evidence of a fact to Comniissionera' note. vhicli the master is frequently the only disin- 2060. Disabled seamen. Sec. 20G0. Where a mate or seaman is prevented from rendering service "by ilhiess or injury, incurred without his fault in the discharge of his duty on the voyage, or by being wrongfully discharged, or by a capture of the ship, he is entitled to wages notwithstanding; but in case of a capture, a ratable deduction for salvage is to be made. 2061. Maintenance of seamen during sicJcness. Si c. 20G1. If a mate or seaman becomes sick or disabled during the voyage, ■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. 2062. Death on the voyage. Sec. 20G2. If a mate or seaman dies during the voyage, his personal repre- sentatives are entitled 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. 2063. Theft, dc, forfeits wages. Sec. 2003. Desertion of the ship without cause, or a justifiable discharge by the master during the voyage for misconduct, or a theft of any part of the cargo or api)urtenances of the ship, or a willful injury thereto or to the ship, forfeits all wages due for the voyage to a mate or seaman thus in fault, 2064. Seaman cannot ship goods. Sec. 20G4. A mate or seaman may not, under any pretext, sliip goods on his own account without permission from the master. 2065. Embezzlement by mate or seaman. Section 20G5 was repealed by act approved March 30, 1874; Amendments 1873-4, 247; took effect July 1, 1874. 2066. Laio governing seamen. Sec 20GG. The shipment of officers and seamen, and their rights and duties, are further regulated by acts of congress. ARTICLE VI. ship's managers. 2070. Manager, what. Sec. 2070. The general agent for the owners, in respect to the care of a ship and freight, is called the manager. If he is a part owner, he is also called the managing owner. 355 (§ 2071-2079 OBLIGATIONS. Pnr. HI, Part VI, " The phrase ' manager* takes the place of appointed, like other agents, by written instm* •hnsband.' The term 'ship's husband.' here- ment or orally: I i'ars. Mar. Law, c. 4, sec. tofore used in the books, is discarded. He 6, p. 97. In our statutes of registration, 'hus- (niay be and) is usually, but not necessarily, a band' is called the managing owner: Id. 99:" part owner, and is the general agent of the Commissioners' note, owners in respect to the ship, and may be 2071. Duties of managers. Sec. 2071. Unless otherwise directed, it is fhe duty of tlie 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. 2072. Compensation. Sec 2072. A managing owner is presumed to have no right to compensation for his own services. CHAPTER III. SERVICE WITHOUT EMPLOYMENT. 2078. Vohintanj interference with jifoperti/. Sec. 2078. One who ofSciously, 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 such service, and use ordinary care, diligence, and reasonable skill about the same. He is not entitled to any compensation for his service or expenses, except that he may deduct actual and necessai'y 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. Employment -without reward: See sees. 1975 et seq. Gratuitoixa carriers: Sec. 20S9. 2079. Salvage. Sec. 2079. Any person, other than the master, mate, or seaman thereof, ■who rescues a ship, her appurtenances, 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 cai'go, in favor of the owners, officers, 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 another, when in distress, are payable through a general-average con- tribution on the property saved. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 247; took eject Jahj 1, 1874.] Salvage. — The amendment consists of all the rights of shippers by steam-vessels, where after "by the title on liens." It was adoj)ted tlic \'oss(;ls become disabled by breaking tlieir at the suggestion of the code examiners, who machinery, and are towed into port by other say: "The object of tlie amendment is to deliue stuumcrs belonging to the same owners." 356 TiTLi VII, Chap. L] CARRIAGE IN GENERAL. §§ 2085-2090 TITLE VII. CAERIAGE. Chapter I. Cauriage in General , , 20S5 II. Carruge of Persons 209G til. Carriage of Property 2110 rV. Carriage of Messages 21G1 V. Common Carriers .^.^..^ 21G8 CHAPTER I. CARRIAGE IN GENERAL. 2C85. Contract of carriage. Sec. 2085. The contract of carriage is a contract for tlie conveyance of prop- erty, j^ersoiis, or messages from one place to another. Common carriers defined: Sec. 2168. For Carriage of persons: Sees. 2096 et seq. exaiiiplcof couiinon carriers, see the uote to that C-irria^e of messages: Sees. 2iGl, 2162, Beef ion. and 2207 et seq. Carriage of property: Sees. 2110 et seq. 2086. Different kinds of carriers. Sec 208G. Carriage'is either: 1. Inland; or, 2. IMarine. Seo references in note to next section. land carriers. So also Angell on the Law of "The second class, 'marine carriers,' as Carriers, c. 11, sees. 52.5 et seq., p. 012. Tliia tbcy are called, are treated of in Revl. on Car- is tlie first general classitieation for the pur- riers and other Bailments, c. 27, sec. 328 et poses of this title:" Conunissiouers' note, eeq., as 'carriers by water;' all others are in- 2087. Marine and inland carriers, what. Sec. 2087. Carriers upon the ocean and upon arms of the sea are marine carriers. All others are inhind carriers. Inland carriers of property, rights cmd duties of: See sees. 2194 et seq. Marine earners, rights and duties of: See sees. 2148, 2197 et seq. £038. Carriers hj sea. Sec. lOSS. Rights and duties peculiar to carriers by sea are defined by acta of congress. "Seeaetsof congress relative to carrying pas- See also sees. 2197, 2198. eengers: Acts of ISIO, c. 40; IS'S, c. 191; 1813, Rights and duties of carriers generally: c. 'j4; 1S47, c. 10; 1848, c. 41 ; 1851, c. 43; 1870- Sees. 2180 et serj., 2194 et seq. 1, c. ICO;" References by code commissioners. General avera^ie: Sees. 2148 et seq. 2089. Ohlicjaiions of rjratidlous carriers. Sec. 2089. Carriers without reward are subject to the same rules as employees without reward, except so far as is otherwise provided by this title. Employees vrithout reward: See sees. Service without employment: See sees. 1975 et beq. 2078 et seq. 2090. 0!)ligatior}S of gratuitous can-ier who has begun to carry. Sec. 2090. A earner without reward, who has begun to perform his under- taking, must complete it in like manner as if he had received a reward, unless he restores the person or thing carried to as favorable a jiosition as before he commenced the carriage. Co!U[i;ire wilh sections 1975, 197G. hand, there would be no injustice in a refusal "Thiii is intended to include messages to allow him to start ui)on the journey: Sue as well as |>ro|)erty. It would be manifestly also note to prc-ceding section; and lleil. on iinrciisonahle to allow a railway compaiiy to C'airiers, etc., pt. l,e. 2, sees. 1 1 -17, inclusive, t^jcct a ] asNcnger upon a free ticket when he and cases cited iu notes:'' Code commissiout-rs. had made only half his journey. On the oilier 357 §§ 2096-2104 OBLIGATIONS. [Div. Ill, Pabx IV, CHAPTER II. CARRIAGE OF PERSONS. Article I. (tRATuitous Carriage ,..,...* 2096 II. Caukiaoe for Reward ....-...-.., 2100 ARTICLE I. GRATUITOUS CAERIAQE OF PERSONS 2093. Drrjree of care required. Skc, 20!)0. a carrier of persons -without reward must use ordinary care and dilig-ence for their safe carriage. Duty of gratuitous employee, generally: See sees. 1975, 1976. Carrisrs of persons, generally: See sees. 2 ISO et seq. Liability of carriers of persons, generally: Note to .sec. 2186. ARTICLE II. CARRIAGE FOR REWARD. 2100. General duties of carrier. Sec. 2100. 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. Duties of carriers of passengers: See 1,3 C:il. 509; Jamison v. S. J. d- S. C. 7?. R., Thoinpson on Can ieis of Passengers, 124; and a 55 Iil. 593; Whealon v. N. B. M. H. R., 3G Id. note in 43 Am. Dee. 3.55, wliero the rule that 590. caniersiif passengers for hire are bound to ob- Happening of injury as prima facie evi- Berve the utmost care and caution, and tliat deuce of negligence. — As between a j aa- they are responsible for injnrJ'og received by senger and the carrier, the proof of the oecur- jia^seiiLrers that could have been avoided by rence of an accident, by wliieh the passenger the exercise of extraordinary vigiJance, aided sustains injury without liis fault, ia /'/i/zinyarift by the highest ski.l, is suported by abuntlant proof of negligence on the part of the carrier: autliority. That note alsocontains discussions Vcimuini^ v. Contra Cos/a S. N. Co., 4-i Cal. 72; and citations upon the effect of d' feet in Foirrhild v. Cal. S/a(/e Co., 13 Id. 599. Vehicles and other appliances, and upon t!ie Injuries caused by acts of servant: See liabi'ity for negligent management of vehicles, note to Ware v. liarataria <£; L. Canal Co., 35 The general rule as framed in the above sec- Am. Dec. 201. tion is followed in Fairchild v. Cal. SUuje Co., 2101. Vehicles. Sec. 2101. A carrier of persons for reward is hound to provide vehicles safe and fit for the pui-poses to which they are put, and is not excused for default in this respect by any degree of care. Carrier must provide proper vehicl3s: 3r)2. As to liability for latent defects, see the See the note to Ligr.Us v. Blllx, 43 Am. Dec. same note: Thompson on Car, Pas. 215. 2102. Not to overload his vehicle. Skc. 2102. A carrier of persons for reward must not overcrowd or overload his vehicle. Railroad corporations to furnish accommodations: Sec. 483. 2103. Trealmod of pwsengers. Sec. 2103. A carrier of persons for reward must give to passengers all such accommodations as are usual and reasonable, and must treat them with civility, and give them a reasonable degree of attention. 2104. Rate of apeed a) id delays. Sec. 2104. 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. .358 Title VH, Cuap. III.] CAnRIAGE OF PROPERTY. S§ 2110-2117 CHAPTER III. CARRIAGE OF PROPERTY. Aeticle I. General Definitions ►, 2110 It. Obligations of tue Cakrier 2114 III. Bill OF Lading 2126 IV. FliKIOUTAGE ^ 213(» V. Gjeneral Average ..._...-.....,.* ».......» 2143 ARTICLE I. GENERAL DEFINITIONa, 2110. Freirjlil, consignor, etc., what. Sec. 2110, Property caniecl is called fveiglit; the reward, if any, to be paid for its carriage is called freightage; the person who delivers the freight to the carrier is called the consignor; and the person to whom it is to be delivered ia called the consignee. "This section pertains to definitions rreightags, -wliaa to be paid: Soe sees, simply. — The use of the words 'freight' and 21:10 et seij. * freightaj;e ' are here proper, whereas such has Bill of lading- — For defiuition of bill of lad- not been the case. I^ee note to sec. 26G1, post:" ing, see Heo. 2l^i>. Statement by code commissioners. ARTICLE II. OBLIGATIONS OF THE CAJKRIEK. 2114. Care and diligence required of carriers. Sec. 2114. A carrier of property for reward must use at least ordinary care and diligence in the performance of all his duties. A canier without reward must use at least slight care and diligence. Care and diligence required of carriers of the danger. Illustrations of a carrier being of property. — "The care wliicli bailees are re- held liable for damage to pro;>ijri\v will be quiretl to bestow on Ijaihneuts is fully discussed found in IJohannan v. [larnmond, 42 Id. 227; in notes to tiths .S, 4, and 5 of this part, aiiti', MeudelsohiL v. Anahnm LvjliferiJo., 49 Id. G.")?, and tie mere custo<]y creates a bailment in the where it was said that a carrier would by liable carrier which re(iuire3 of him the same care in punitive damages for a wilU'ul bieach of his required of a bailee for compensation: Redfiuld duty: Aijiieiu v. Stcaiwr Contra C'ost'i, 27 Id. on Carriers, etc., sec. 3, c. 1, pt. 1, and cases 425; Jo.ie.'< v. ]Yd!-<, Fani') A Co., 23 LI. 259; cited in note 1 ; Cairns v. liobius, 8 Mee. & W. 31a}/ v. llannoii, 5 Id. o()0; Polk v. Co(]hi, i) Id. 258:" Commissioners' note. 5G; Uri§ll-h v. Cave, 22 Id, 534. These last A brief and accurate statement of the dili- three decisions concern the liability of ferry- gence required of a earlier of property for hire men. ia thus made in Gerke v. Cn^ij'ornia Steam Carrier of property witliout rew.Trd la Naviijai'ion Co., 9 Cal. 251: lie is bound to liable only as a ])aiko without hire: Fay v. temper his care according to the circumstances Steamer New WorlJ, 1 Cal. 34S. 2115. Carrier to obey directions. Sec 2115. A carrier must comply with the directions of the consignor or consignee to the same extent that an employee is bound to comply with those of his employer. Employee's duty to obey employer: Sec, 1981. 2116. Conflict of orders. Sec. 2110. AVhen the directions of a consignor and consignee are conflicting^, the carrier must comply with those of the consignor in respect to all matter*, except tbe delivery of the freight, as to which he must comply with the direc- tions of the consignee, unless the consignor has .specially forbidden the carrier; to receive orders from the consignee inconsistent with his own. 2117. Stowage', deviation, etc. Sec 2117. A marine carrier must not stow freight upon deck during tha^ voyage, except where it is usual to do so, nor make any improper deviation from, 359 §§2118-2122 OBLIGATIONSi tPiv. Ill, Part IV, or delay in the voyage, nor do any other unnecessary d.ct which would avoid an insurance in the usual form upon the freight. 2118. Delivery offrevjhl. Skc. 2118. A carrier of property must deliver it to the consignee, at the place to which it is addressed, in the manner usual at that place. Duty of carrier -witli respect to delivery. Governor v. Wilhevi, 50 Id. 100, anil tiote. Where and to wliom must bo male: See next Deposit in a warehouse: See sec. '2120. If the section; O'ihson v. Ctdl'cr, SI Am. Dec. 297, and carrier delivers the goods to a t!iird person note. Wliat is a sufficient delivery: FLsk v. not the owner, lie do^s so at bis peiil: Ailama A'ewtou, 4.i Id. 019, and note; Farmers' etc. v. Blanke:isi('ui, 2 Cal. 41."). ]5ut in an action Bank V. C/ianiplain T. Co., 42 Id. 491, and therefor tlic carrier may siiow tlic third jierson note. Duty to notify consignee of arrival to be lawfully entitled to the goods: liayden, of goods: S. 0. , 5'J id. 84, and note. Usage v. Davis, Old. 573. as affecting carrier's duty as to delivery: Id.; 2119. Place of delivery. Sec. 2119. If there is no usage to the contrary at the place of deliver}', freight must be delivered as follows: 1. If carried upon a railway 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 reasonable distance from the place of address; or, if there is no wharf, on board a lighter alongside the ship; or. 3. In other cases it must be delivered to the consignee or his agent, persson- ally, if either can, with reasonable diligence, be found. See references in note to preceding section, the care of his agents, he having agents there It i.3 not a good delivery, in the absence of for the purpose of receiviii',f tliom: IJresbach v. a special contract, merely to place tliem ou the Cal. Par., R. R, Co., 57 Cal 402. bank of a river at the point of destination in Dalivery to connaotlug carrier: See seu, the absence of the consignee, and not under 2201. 2120. Obligations of car i-ier when freight not delivered. Sec 2120. If, for any reason, a carrier does not deliver freight to the con- signee or his agent personally, he must give notice to the consignee of ita arrival, and keep the same in safety, upon his responsibility as a warehouseman, until the consignee has had a reasonable time to remove it. If the place of residence or business of the consignee be unknown to the carrier, he ma}' give the notice by letter dropped in the nearest post-office. [Amendment, approved March 30, 1874; Amendments 1873-4, 247; look effect July 1, 1874. J Carrier's liability as ■warehouseman — as a warehouseman commences; he is held to For a discussion of the liability of a common ordinary care and diligence only in the keeping carrier as warehouseman, see the note to and delivery of the goods: Jictionv. Sac V. Schtiiidl v. IJhod, 24 Am. Dec. 143. From the R. R. Co., 23 Cal. 206. So Ilirshjldd v. C. P. time that a carrier places the goods in his ware- R. R. Co., 5G Id. 4S4, the iihiiutiu having no- house at tlie point of destination his liability tice of the arrival of the goods. 2121. Carrier, how exonerated from liability. Sec. 2121. If a consignee does not accept and remove freight within a rea- sonable time after the carrier has fulfilled his obligation to deliver, or duly offered to 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 hijn. [Ame)idineitt, approved March 30, 1874; Amendments 1873-4, 248; took effect July 1, 1874. J 2122. Place freight in warehouse. Section 2122 was repealed by act approved March 30, 1874; Ameadiuents 1S73-4, 248; took effect July 1, 1874. 360 Title VII. Chap. III.] CARRIAGE OF PROPERTY. 2I2&-2I29 ARTICLE III. BILL OF LADING. 2126. JliJ! of lading, what. Sfc. 212G. A bill of ladinp^ is an instrument in writing', signed by a carrier or bis agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage, and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a specified place. Bill of lading. — See a very careful considera- tion of bills of lading, and t!ie rights which their transfer gives the transferee, in Doihje v. il'-i/cr, GI Cal. 403. In a note to ChmnUer v. Sprni/iip, 08 Am. Dec. 407 et serj., several im- portant questions connected vrith this general Buljjcct ;.re discussed; for example, its general character, its elTect as evidence, and bow it may be controlled, the right to show tliat no goods were shipped, or their quantity, or time ami place of shipment, its weight as evidence of title, its indorsement and transfer, and the effect of particular provisions therein. Carrier s reoeipt and bill of lading held to be the same: Dodge v. Meyer, aupra. 2127. Bill of lading negotiable. Sec. 2127. All the title to the freight which the first holder of a bill of lad- ing had when he received it passes to every subsequent indorsee thereof in good faith and for value, in the ordinary course of business, with like effect and in like manner as in the case of a bill of exchange. E:ll3 of I:adin2 negotiable. — " This section ing only transfers the title to the goods, and not Bettles the question of the negotiability of a the right of action in the name of the sliipper for injury during voyage: Story on Contracts, bill of lading, which was not only doubted in L'nvkcr V. Ai/pffiford, 1 Cal. 75, ))ut there posi- tively held not to be negotiable, and t!iat if the holder of a bill of lading can recover at all, It must lie on tlie ground that lie has some interest in it, and not on the contract itself, inde endent of tiie question of tlie ownership of tlie goods, which is in accordance with the text wliere the words 'good faitli ' and 'for value' arc used. The case in 1 Cal., supra, ably discusses t'.ie entire question, referring to Smith'.s Merc. Lrxw, 2S7; Thomj)son v. Doicn- inr/, 14 Mce. & W. 403; 2 Kent's Com. 547; 1 Smith's Lead. Cas. G49, Am. notes. Aud though it decides the bill of lading to be non- negoliab'.c, it hohls tV.at the assignee of the bill, sec. 810, and note 3. \\'hatevcr doubts existed on this subject are settled by the text: " Com- missioners' note. The negotiability of bills of lading in this state is recognized not only by the above sec- tion, but by tlie decisions of t'le supreme court: Knvhall v. C. P. R. /?., 51 Cal. 345, where the indorsee of the bill of lading from the vendee rt*ithout no*^ice of tiie latter's insohency, or of a notice of stoppage of the goods /// tranvtu, was given the goods in preference to the vendor. And see Dodfje v. Meyer, 01 Id. 40.5. containing an exhustive consideration of the lights uf the parties to a bill of ladinsr. Soe this feature of bills of lading discussed properly indor.sed, vests the property prima in thu vote to Chandler v. Spra'jae,dS Am. Dec. facie in t'.ie indorsee: Redfield on Carriers, sec. 437 et seq. 249. ' But as a Ijill of lading is qaa>fi a nego- In Le Cwheux w Cutter, G Cal. 514, a party ti.xl.le instrument, if negotiated, it is binding about to fail assigned a i)ill of lading in trust upon the shi;i-o-\ner:' Howard v. Twker, 1 to devote the proceeds to the payment of the Barn. & A lol. 5 1 '2; Cox v. Pcterxon, 30 Ala. 60S; licdfield on Carriers, sec. 260, is eontirma- tory of the case .supra, 1 Cal., and tliis on the auLhority of .Shaw, C. J., Mass., in the case of Shall' V. Ca d.er, 12 Gray, 4SS, wdicre the cases are carefully rev ewed, and the proposition sus- tained that the indorsement of the bill of lad- vendor; the assignment was good as against att.iching creditors. Jus disoonoadi: See Dodije v. Meyer, 61 Cal. 405. and ItcynohU v. Scott, 3 We^t Coast Rep. 201, for discussion of tlic ju< dix/ioneiidi as alTccted by dispositioQ made of the bill of lading. 2128, Same. Sec. 2128. "When a bill of lading is made to "bearer," or in equivalent terms, a siniple transfer thereof, by delivery, conveys the same title as an indorsement. A b;!l of lading represents tho property for wLioli it h:is Ij.eii given, aud by iis'leliveiy w'i:.hout indorsement the property i:i the gooils may be transferred wdiere such is the intent: Dodije v. Meyer, Gl Cal. 405, 41G; and see GUdden v. Lnca% 7 Id. 23; Tison v. Howard, 57 C a. 410; Mirh!ijan Cnilnd /.'. A', v. I'hWipa, 03 III. 19 ); Fir.ft Xational Hank v. IMuborn, 115 Mass. 219; City Uank\. Home etc. li. H. Co., 44 N. Y. 136. 2123. Efi'ct of bill of lading on right. "i, He, of i-arrier. Skc. 2121). A bill of lading does not alter the rights or obligations of the carrier, as defined in this chapter, unless it is plainly inconsistent therewith. 301 §§ 2130-2138 OBLIGATIONS. [Div. Ill, Part IV, Common carrier may limit his common- and sec. 2175. The restrictions in a receipt law liability [>y stipulations in tlie hill of lad- upon his common-law liability given by a car- ing, but not from liis liabilitj' for negligence or rier are to lie construed most strongly against fraud: St-e note to Chandler v. Spru'jne, .33 An), liini: Hooper v. Wells, Farrjo A (Jr'^, I P>.)sw. payment in aro inoiliate point, he must p.iy full frciglitar;e: rata i!ii:f'rii^: ii'ine noto to Craicford v. Widla/n-'f, H.uue note. 8o, if tho arrival or dolivoiy of GO Alii. Dec. Id3. lUit it is essential that tlie the f;oods is prevented by tlie act or default of receipt liy the consic;nee be voluntary: Id. On the owner thereof, the carrier is entitled to full the oilier Lund, if the carrier offers to carry freighta^^e: Id. 2143. Freigld carried farther than agreed, etc. Sec. 2143. If freight ia carried farther, or more expeditiously, than was agreed upon by the parties, the carrier is not entitled to additional compensa- tion, and cannot refuse to deliver it, on the demand of the consignee, at the place and time of its arrival. 2144. Carrier' ii lien for freightage. Sec 2144. A carrier has a lien for freightage, which is regulated by the title on liens. '•r'oiindation of tli9 lisn is the obligation received it were agents merely, and wiiere of car, i era to receive all goads for trausporta- these agents exceeded their auihoriLy in re- tioii when offered, and in justice they are au- gard to tho terms which they nu.de with the thorize I to retain the freight till the fieiij;jtage carriers: Hayes v. CamyhcU. C.) C'al. 143. The is paid: Angell on Car., sec. 35G; Jones ou cai-rier was put on intpury as to the terms Car. 99; SLory on liailm., sec. 588; see div. 3, under which the parties from whom tlicy re- pt. 4, tit. M), po-t:''' Commissioners' note. ceived the wheat could contract for its carr. age, Liens: 8>.e sees. 2872, post, et seq. and on the failure of this Ihm, the owners Tho carrier's iieil is lost by a voluntary of the wheat could reclaim it free from charges eun eiulerof iiosses.s.on of ihc goods: WiiKjard w. of the earner, a large pait of wlii'h the agent iiaiiKihij, 'M Cal. o4o; and see .sec. 217.'], in note, had no audiorily to contract for: LI. Nor can the carrier l.o.d wheat for his charges Lieu on passenger's luggage: Sec. 2191. when he knew that the iirni from whom he ARTICLE V. GENERAL AVERAGE. 2148. Jettison and general average, xclwt. Sec. 2148. 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 of the cargo or ajopurtenaiu'es of the ship. Throwing property over- board for such purpose is called jettison, and the loss incurred tliereby is called a geueral-average loss. .SOS fi§ 2149-2161 OBLIGATIONS, JTHv. Ill, Pabt IV, 2149. Order nf jeflb^on. Sec. 21'i9. A jettison must begin with tlie most bulky and least valuable article, so far as possible. General avsra-re: See some of the principles 'V^agea and provisions of cievr during coiuiucteil with tliis l)raiich of the law statcil in detention, whether subjects of general aver- tiie note to Walktr v. U. S. Lis. Co., 14 Am. age: See note to Jlanse v. JV. O. Ins. Co., 29 Dee. G\3. Am. Dec. 4G1. 2150. />';/ ichom made. Sec. 2150. A jettison can be made only by authority of the master of a ship, except in case of his disability, or of an overruling necessity, when it may be made by any other person. 2151. Zo.s-.s, lioxv borne. Sec. 2151. The loss incurred by a jettison, when lawfully made, must be borne in due proportion hj all that part of the ship, appurtenances, freightage, and cargo for the benefit of which the sacrifice is made, as well as by the owner of the thing sacrificed. 2152. General-averacje los.s, hoio adjiisli'd. Sec. 2152. The proportions in which a general-average loss is to be borne must be ascertained by an adjustment, in which the owner of each separate interest is to be charged with such proportion of the value of the thing lost aa 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 voj^age, if valid there, is valid every- •Vvhere. 2153. Values, hoio ascertained Sec. 2153. In estimating values for the puipose of a general average, the ship and appurtenances must be valued as at the end of the voyage, the freights age at one half the amount due on delivery, and the cargo as at tbo time and place of its discharge; adding, in each case, the amount made good by contri- bution. 2154. Thingsi .^foioed on deck. Sec 215J:. The owner of things stowed on deck, in case of their jettison, is entitled to the benefit of a general-average contribotion only in case it is usual to stow such things on deck upon such a voyage. 2155. Appl leaf ion of the foregoinrj ruh'ft. Sec 2155. The rules herein stated concerning jettison are equally applicable to every other voluntary sacrifice of j^roj^erty on a ship, or expense necessarily incurred, for the preservation of the ship and cargo from extraordinary perils, CHAPTER IV. CARRIAGE OF MESSAGES. 2161. OUli gat ions of carrier of mein^agen. Sec 21G1. A can-ier of messages for reward, other than by telegraph, must deliver theru at the place to which they are addressed, or to the person for ■whom they are intended. Such carrier, by telegraph, must deliver them at Buch place and to such person, provided the place of address, or the person for whom they are intended, is within a distance of two miles from the main ofiice of the carrier in the city or town to which the messages are transmitted, and the carrier is not required, in making the delivery, to pay on his route toll or 304 Title VII, Chap. V.] COMMON CARRIERS. §§ 2162-21(58 ferriage; but for any distance beyond one mile from such ofSce, compensation may be charged for a messenger employed by the carrier. [Amend ment, approved March 30, 1874; Amendments, 1873-4, 248; took effect Juhj 1, 1874.] The original section consisted of the first Beiiteiice alone, leaving out the words "other than hy tclcgrapli." Order of transmitting messages: Sec. 2-20S. ncfusal to deliver message, penalty: Sec. 22,9. Express companies subject to the same lia- bilities as other earners, in the absence of spe- 2162. Care and diligence required. Sec. 21G2. A carrier of messages for reward must use great care and dili- gence in the transmission and delivery of messages. [Amendmeid, approved March 30, 1874; Amendments 1873-4, 240; took effect July 1, 1874.] The original section added: "A carrier by telegraph must use the utmost diligence thereinu" cial contract to the contrary: Ovrlavd Mail Co. V. Carroll, 1 West Coast Rep. 281 (Col). Ex- ]iress facilities furnished one express com- pany l)y railroad company must be furnished to anotlier: Welln, Farjo f Carriers of Property 2194 IV. CoMMOX Carrlers of Messages 2207 ARTICLE I. CO^MMON CAllPvlERS IK GENERAL. 2168. Common carrier, what. Sec. 21G8. Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common earner of whatever he thus offers to carry, [Amendment, approved March 30, 1874; Amendments 1873-4, 249; took effect July 1, 1874.] Cai-riagc in general: See sees. 20S5 et seq. luIanJl and marine carriers defined: Sees. 20r.7, COSS. "Who are common carriers, generally. 'Whoever undertakes, for hire, to cany goods for the public generally from place to p'ace, whether ll:e transportation be from port 1o port or beyond the sea, at home or abroail, is a common carrier: McCiures v. Ilamrnoiid. 1 Am. Co., 4 Ilarr. (Del.) 448, And a wagoner car- rying goods for hire is a eommon carrier, tliougli a:i incidental, and not his principal, employment: Gordon v. liu'rh'imon, o7 Am. Dee. 4G4; and see, furthei', J'owell v. My-rs, 23 Weiul, 591; Cnmdi'ii etc. 'frani^portatioii Co. V. Belknap, 21 Id. 354; Jones v. I'oorhees, 10 Ohio, 143. If it has been the practice of a driver of one of the coaches of a stage company Dec. COS; /?( berlKon v. Kennedy, CO Id. 4(J0. To to carry articles for hire for hi-^ o\\ n part.cular constitute one a common carrier, it is necessary that he should iiohl himself out as such, aiul persons so holding tliemselves out are liable as commi^n carriers: Farmers <6 IJec/iav/cs' Bank V. Chamilain Transportation Company, 42 Id. 491; Poners v. Davenport, 43 LI. 100. Thii may be done, not only by advertising. Dot J V. Strong, 40 Id. 773, but by actually en- gaging in the business: See Thompson's Car- riers cf Passengers, 20. The following lia\e been held to bo common carriers: advantage, that fact alone will not lender the ecmpaiiy liable: Bean v. Sinrferant, 8 N. II. 14G; /danehard v. Isaacs, 3 Barb. 3SS; and see Augcll on Carriers, sec. 77. I'he owners of sleamboaU arc common car- riers: Aqnew V. Steamer Contra Costa, 27 Cal. 423; McArthur v. Sears, 21 Wend. l'.)0; Sprowl K'llar, 4 Stew. & P. 382; Bowman v. Hilton, 1 1 Ohio, .303; Dunsethx. Wade, 2 Scam. 289; Gil- more V. Carman, 40 Am. Dec. DO, and note. Or the owners may limit their employment to the Sla'je-coiiches. — Proprietors of stage-coaches carriage of ]iarticular kinds of goods \vhcn, as are not insurers or warrantors of the safety of in t!ic case of stage-coaches, they are iu)t liable passengers to the same extent with common a-s common carriers for any other c'ass of gooda can-icrs of goods: J'aircliild v. Cal. Slaf/e Co., intrusted to their agents without their consent. 13 Cal. 599. Where the proprietors of a" stage- Citizens'' Bank v. Nantucket steamboat ('o., 2 coach were in the Iiabit of carrying parcels for Story C. C. 16. But according to the weight of hire which did not belong to the passengers, it authority, tiie owners of steam-tags employed was held tiiat they were common carriers: in the business of towing are noc common car- Dwight V. Brewster, 1 1 Am. Dec. 133; Beckmnn riers. For a collection of the decisions pro and V. Shouse, 28 Id. 033; McUcnry v. Railroad con on this question, see Lawsou on Coutracta J6J |§ 2169-2171 OBLIGATIONS. [Div. ni, Part IV, of Carriers, p. 3, note 12; and White v. Tu;} Mary Ann, G C'al. 402, which case inc'incs towards lixing their liability as that of coininou carriers. Telegrnph rowpanies: See note to sec. 2207, RailrowU. — Umlcr the general railroail law, all railroads are compelled to act as commoii carriers: Coufni Costa li. B. Co. v. il/o.ss', 2;} Cal. 323; Jacl. v. Bhd-e, Id. ISO; Cole V. Goodwin (t- Story, 10 Wend. 2.51. With regard to the regulation of fares and freightage on railroads, S(^e ante, sec. 4S4. Rishts and liabilities of crirrlers: See post, nnder "Carriers of Persons and Carriers of Prop- erty," sees. 2!80ctseq. aud2194; and as to rights and duties of carriers by sea, see sec. 20SS, ante. Railroad's liability for 1 jS3 occasioned by fire from its engino: See Smyth v. Stock- ton etc. R. R. Co., 3 West Coast Rep. 575; see a valuable discussion of this question in Bur- roughs v. JJousatonic R. R. Co., 38 Am. Dec. 70. 2169. Obligation to accept freigl it. Sec. 21G9. A common carrier must, if able to do so, accept and carry what- ever is offered to bim, at a reasonable time and place, of a kind that he under- takes or is accustomed to carry. Must receive passengers and goods if he has room: Cole v. Goodwin, 32 Am. Dec. 470; IlolUster v. Aowlen, 19 Wend. 234. Delivery to and acceptance by carrier need not be proved in an action for refusal to carry: Doty V. Strong, 40 Am. Dec. 773. Refusal by rail- road to carry passengers: Sec. 482, ante. "Want of room: See poft, sec. 2183. Improper persons. — Carrier not obliged to carry such; but discrimination must be based upon a reasonable rule and good cause: Indian- apolis etc R. To. v. Renard, 4G Ind. 203; Day V. On-en, 5 Mich. 520; Westchester etc. R. Co. V. Miles, 55 Pa. St. 209. 2170. Common carriers not to give preference. Sec. 2170. A common carrier must not give preference in time, price, or otherwise, to one person over another. Every common carrier of passengers by railroad, or by vessel plying upon waters Ij'ing wholly within this state, shall establish a schedule time for the starting of trains or vessel from their respect- ive stations or wharves, of which public notice shall be given, and shall, weather permitting, except in case of accident or detention caused by connect- ing lines, start their said trains or vessel at or within ten minutes after the schedule time so established and notice given, imder 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 attor- ney of the county in the name of the people, and paid into the common-school fund of the said county. [Amendmeut, approved April 2, 1880; Amendments 1880, 1 {Ban. eel. lOG); took effect immediately.] Time-table. — For railroads, see ante, se?. certain quantities, for less compensation than 481, and general!}', infra, sec. 2172. No preference. All who apply must be treated alike: Wheeler v, S. F. 2. "Ltnzz looi. — The law of tlie place of receiving tiie goo Is detenniiies the right to limit the lia- bility by notice: //a.'e v. New Jrsvy Steafrt j^(in. Co., ;5i) Am. Dec. 31)8, and note. Limitins liability by special contract: See sec. 2175, and note, and note to see. 2186. Limitations on liability — The text is simply declarative of the common law; a notice or even a special agreement affects the responsi- bility of the carrier in the capacity of an insurer only, and does not totally remove his lia- bility as baillee: lIoHistor v. Novlcn, 19 We'xl. 234; Coif v. Goodvnn, 32 Am. Dec. 470; New Jersey Steam Navbialion Co. v. Merchantu^ Bank, G How. .341; hlley v. Home, 5 Bing. 217; JJiidou V. Dilhiii, 2 Q. B. G4G; Swindler v. IJil- liard, 2 Rich. L. 28tj; Bechnan v. Shouse, 28 Am. Dec. Go3; Camden etc. R. B. Co. v. Burke, 28 Id. 488; Pa. E. C. v. llendrkkson, 51 Pa. St. 330. See sees. 2120, 2186, and 2201, and notes thereto; see also sec. 2 1 74, and note. The con- tract is to be interiireted most strongly against the carrier: Overland Mail Co. \. Carroll, 1 West Coast Rep. 281 (Col.). Gross ns^ligence. — No real distinction be- tween tliis and ordinary negligence: W't/ld v. Picl-ford, 8 I^Ice. & W. 4G; 'ilium tn v. Lihbin, 2 Q. B. G4G; Angell on Carriers, sec. 2;3S; Lf.w- son on Contracts of Carriers, sees. I(i'4-1G9; Story oil Bailm., sec. 571, 571 A.; lixilroul Co. V. Lockwood, 17 Wall. 382; Steamboat A'cio Worlt V. Khi'f, IG How. 474. Burden of proof, after proof by the carrier of Contract limiting liability, devclvt'S upon the shipper according to the pre;iondcranco of American decisions, Greenleaf and a few au- thorilies being to the coutrarj': Angell on Car- riers, sec. 270. Tlie deci.-sions are collated in Lawson on Contracts of Carriers, sec. .'^73. Torms of receipt, -when and vylicn not binding on shipper: See Overland Mad Co. v. Cm-roll, fiiip7-a, and Pereirav. C. P. B. B. Co., 4 West Coast Rep. 372. 2176. Written-contract carrier. Sec. 2170. A joassenger, consignor, or consignee, by accepting a tictet, bill of lading, or written contract for carriage, with a knowledge of its terms, assents to the rate of hire, the time, place, and manner of delivery therein stated; and also to the limitation stated thei'ein upon the amount of the car- rier's liabilitj' 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 limita- tion 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. [Amendment, approved March 30, 1874; Amendments 1873-4, 219; looJa effect J iihjl, 1874.] This section is to be read in connection with sec. 2174, ante. Concealment of value, if there has been a fraudulen':, carrier not liable: Orange County Bank V. Broicn, 24 Am. Dec. 129; exce[)t, of course, for misconduct or neglect: / 1 ol lister v. Nowlen, 32 Id. 435; Be'/\. Baj>p, 37 Id. 523; Story on Biilui., sec. 5ti5; Cjxe v. llei-sley, 19 Pa. St. 243; Cliica-jo B.w Thompson, 19111.73. Value of c^odo may require statement of: Oppenheim v. N. S. Ex. Co., 09 111. G7; IloUis- ter V. Uou-len, 32 Am. Dec. 455. Witliout Limitation of liability, the car- rier is answerable for loss of valuable package, though ignorant if value: Ilel/v. Baj//), 37 Am. Dec. 528; Brown v, Camden etc. B., 83 Pa. St. 316; Little v. Boston i: Me. B., CO iMc. 239; Phil- lipn v. Earle, 8 Pick. 182. Limitation of liabil- ity: Sec S( cs. 2174, 2175, and notes thereto. Shipper not bound to disclose value, in abjcnce f>f notice, unless asked: Avyv. /'app, 37 Am. Dec. 528; Merchants^ Di-^patrh Trans. Co. V. BoHef, 89 111. 473, and cases la>t before cited; Orange Co. Bank v. Brown, 24 Am. Dec. 129. Value bsins apparent — In this cas-^, al- though the carrier gives notice, yet the shi[)per need not volunteer information as to IIjc value of the goods: Lawson on Contracts of Carriers, sec. 93; Beck v. Bvayis, 3 Camp. 2J7; Ho-sko- vulz V. Adams Express Co., 5 Cent. L. .1. 58; S. C, 9 Id. .339; Orndorff \. Aihuns Evpresa Co., 3 Bush, 194; Moses v. Boston tie. R. Co., 24 N. H. 71. 2177. When not liable for loss. Sec. 2177. A common carrier is not responsible for loss or miscarriage of a letter, or package having the form of a letter, containing money or notes, bills 3Ca Title VII, Chap. V.] COMMON CARRIERS. §§ 21S0-21S3 of exchange, or other papers of value, unless he be informed at the time of its receipt of the value of its contents. [New section, approved March 30, 1874; Amendments 1873-4, 250; took effect July 1, 1874.] To the same effect: Hayes v. Wells, Fargo of notice by the carrier, limiting his liability in «fc ( 0., 23 Cal. 185. this respect: See notes to sec. 2170, aiife. Notice. — This section obviates the necessity Messages, carriage of: See sec. 21G1, ante. ARTICLE II. COMMON CAERIERS OF PERSONS. 2180. Obligation to carry luggage. Sec. 2180. A common carrier of persons, unless his vehicle is fitted for the reception of persons exclusively, must receive and carry a reasonable amount of luggage for each passenger, without charge, except 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 may not receive and carry for each passenger by Buch stage line, without charge, more than sixty pounds of luggage. [Amend- ment, approved March 9, 1878; Amendments 1877-8, 87; took effect sixtieth day after j^assage. ] Liability of carriers of persons gener- and to the same extent as a common carrier of ally: See note to sec. 2186. property: Slomaii v. Ori'at Western I'. Co., C7 iJxtra baggage. — Where such additional N. Y. 20^; Gtasco v. New York etc. R. (Jo., 36 compensation is jjaid, the carrier is responsible Barb. 537; Dihhle v. Brown, 12 Ga. 218. for buch extra baggage in the same manner 2181. Luggage, what. Sec. 2181. Luggage may consist of any articles intended for the use of a passenger while traveling, or for his personal equipment. Baggage, v^hat is. — This is a mixed qnes- riers of Passengers, 511, 513; Angell on Car- tion of law and fact, to be detcrmineil by rieis, 115, note. the ji;ry under proper instructions from tlie Not liable for what is not properly bag- court: Vdjhli' V. Brown, 12 Ga. 217; Parmelee gage. — The agreement on the part of t!ie car- V. I'i^her, 22 III. 212; N. Y. etc. 11. Co, v. Tra- rier is to transport the passenger and his bag- loff, 20 Alb. L. J. 409. For decisions upon gage, and there is no contract as to anything what articles have been held to be properly else: Thompson ou Carriers of Passengers, 522. baggage and vice versa, see Thompson on Car- 2182. Liability for luggage. Sec. 2182. The liability of a carrier for luggage received by him Avith a pas- senger is the same as that of a common carrier of property. See sec. 2194, pof^t. eral cases where baggage in the custody of the _The passei'gcr keeping the baggage in passenger has been stolen, no negligence being his o^vn custody relieves the carrier of his shown on the part of the carrier, the carrier extraordinary liability of insurer only. For has been exonerated of all liability: IV.lcox v. ah losic? co.iSj.| lent upon the negligence of S'ea>nb3'U v. Philadelphia, 20 Am. Djo. 43G; the carrier or iii? servants, the cirrier still P-d'mnn Pdlace Car Co. v. Smith, 73 III, oij5; remains liab'e: American Steamiihip Co. v. The U. E. Lee, 2 Abb. 49, 51; Clark w Burns, Bryan, 83 Pa. St. 44G; Kindey v. Lake Shore 118 Mass, 277. etc. R. Co., 19 Ail). L. J. 113;, Williaivs v. Keo- Li3ia on baggage for fare: See sees. 2191, hik etc. Packet Co.. 3 Cent. L. J 400; Weeks 3031, 2>ost. V. New York etc. R. Co., 9 Hun, G71. In sev- 2183. Luggage, how carried and delivered. Sec. 2183. A common carrier must deliver every passenger's luggagS, wliether within the prescribed weight or not, immediately upon the arrival of the jms- Benger at his destination; and unless the vehicle would be overcrowded or overloaded thereby, must carry it ou the .same vehicle by which he carries tho passenger to whom it belonged, except tbat where luggage is transported by rail it must be checked and carried in a regular baggage-car; and whenever passengers neglect or refuse to have their luggage so checked and transported, it is carried at their risk. [Amctidmenl, approved March 30, 1874; Amendments 1873-4, 250; took effect July 1, 1874. J Civ. Code— 24 3G9 8§ 2184-2183 OBLIGATIONS. [Div. Ill, Part IV, The exception tvaa nd led by the amendment. Duration of liabilJty.— Currier's liability is co-ex ten.sive with his custody of the baggage, :ind cdutiiines until delivery into the hands of the passenijer, or until the latter, by the im- plication derived from his contract, relieves t'ne former of his liability as insurer: Minor v. Chica.jo etc. It. Co., Yd \Vis. 40; Toledo etc.. R. Co. V. ILtmmond, '^:^ lad. 370; Cole v. Good- vnn, 32 Am. Dec. 470; Qiilmit v. //ens/iaw, 35 Vt. 304; J^Iatlison v. New Yo7-k etc. li. Co., 19 Alb. L. J. 35f). Check is jirima facie evidence that the car- rier has received the baggage which it repre- Benta: Davis v. Michigan etc. I'. Co., 22 111. 278; Chicago etc. B. Co. v. Clay ton, 78 Id. GIG; Atchison etc. R. Co. v. Brewer, 20 Kan. GOO; Davis V. Cayuga etc. R. Co., 10 Hov/. I'r. 330. Duty to furnish check: See sec. 479, ante. Storage of baggage.— It is the duty of the carrier to care for the baggage for a reasonable time after arrival, to enable the passenger to take possession of it: Dininny v. New York etc. R. Co., 49 N. Y. 540; Nanus v. Bay State Steandioat Co., 4 Boaw. 225; Cary v. Cleveland etc. R. Co., 29 Barb. 35; Curtis v. Delaware etc. R.Co., 74 N. Y. 110. Removal of baggage. — It is the reciprocal duty of the passenger to remove the baggage within a reasonable time. And if, having an opportunity aftbrdcd him, be does not do so, the carrier is relieveil of his cxtraonlinary liability of insurer, and becomes subject to the ordinary liability of tlio warehouseman only: Dininvy v. New York etc. R. Co.. 49 N. Y. 540; Chicago etr. R. Co. v. Boyce, 73 111. 510; Mote v. Chicago R. Co., '21 Iowa, 22; Ross V. Missouri etc. R. Co., 4 Mo. App. 583. But the passenger is not obliged to expose him- self in a crowd in order to- claim it: Cole v. Goodwin, 19 Wend. 251; Ncvins v. Bay State Steamboat Co., 4 Bosw. 225. 2184. Obligation to provide vehicles. Sec. 2184. A common carrier of persons must provide a suiScient number of vehicles to accommodate all the passengers who can bo reasonably expected to require cai'riage at any one time. See note to sec. 21G9, ante, and 2185, post. '51185. Si'otsfor passengers. Sec. 2185. A common carrier of persons must provide every passenger with ta seat. He must not overload his vehicle by receiving and carrying more pas- -Bcngers than its rated capacity allows. • Compare with sec. 483, ante. Duty to carry all ■who apply: Sec. 21G9. Want of room is generally sullicicnt excuse 'for denying farther admission of passengers into the conveyances, on the ground that the ac- ■ commodations are inadequate for a greater nuin'ocr than these already admitted, or the reception of more would incommode those who Y. G70, and 32 Barb. 398, where plaintifif re- covered for injuries received while standing on the [)latform, the car I)eing crowded; Long v. Jlorna, 1 Car. & P. GIO; Angell on Carriers, 470, note h. Freight-car. — The person agreeing to be carried on a baggage-wagon or freight-car agrees by implication to be satisfied with the have already taken passage: The Pacific, 1 accommodations to be found there: Murch v. Blatchf. 509; Jcncks v. Coleman, 2 Sumn. 221. Concord R. Co., 29 N. II. 9, 42; Dillane v. New Overcrov/ding.— Action will lie against York etc. R. Co., 5G Barb. 30; Allender v. ■ common carrier for injury sustained from this Chicago etc. R. Co., 37 Iowa, 2G4. cause: Willis v. Long Island Railroad, 34 N. :\2188. Regulations for conduct of business. Seo. 2188. A common carrier of persons may make rules for the conduct of his business, and may require passengers to conform to them, if they are lawful, .public, uniform in their application, and reasonable. Rule.3 and regulations that carrier may • make: See notes to Commonwealth v. Power, -41 Am, Dec. 472; and to Cheney v. Boston <& Me. R. Co., 45 Id. 192; see also rh^c, sec. 48t. Regulations: See ante, sec. 405. subds. 10, 11; an 1 sec. 484. The fact that it is lawful is not enough: State v. Overton, 24 N. J. L. 435. It must not only be reasonable, but must be -enforced in a reasonable manner: Chica/o etc. B. Co. V. Williams, 55 111. 185; Bass v. Clucano etc. R. Co., .36 Wis. 450. The question of reasonab!enps.e liable for the ejection: JJland V. .S'. P. R. R. Co., 53 Cal. 570; see same case, 4 West Coast Rep. 3Sli. Fare paid from what station. — A rule re- quiring a passengtr not provided witlt a ticket, or failing to show it, to pay f.ire from the sta- tion from which the train ori ,'inally started, without reference to the distance which the reasouiible, and void: Saunders v. South-eastern R. Co., h. R., 2 Q. B. Div. 430; Lom/oi etc. R'll Co. V. Watson, L. R., 3 C. P. Dlv. 420. Opportunity to purchase. — The better doctrine i^ that the company must, in order to charge train-rates, alFor I tlie passenger an op- portunity to purchase a ticket, by keeping the ticket-oliico open a reasonable time before the depLirtur(3 of the trains: CIdcarjo etc. R. Co. v. p. rLe, 18 111. 400; I/liwisetc. R.Co. v. Cnniiivg- Jinm, 07 Id. 310; Jcffersonville R. Co. v. Rni/rrs, 33 Ind. 1 10; State v. Chovhi, 7 Iowa, 204;' Da Ln,nran.i v. First Div. etc. R. Co., 13 Minn. 40; and see also Thompson on Carriers of Pas- sengers, 341, and Commonwealth v. Power, 41 Am. Dee. 433. Ejocting peissenger for non-payment ol fare: Sec. 487. 2190. Fare not payable after ejection. Sec. 2190. After having ejected a passenger, a carrier has no right to require the payment of any part of his fare. Retaining a part.— It lias been lield that where tlie passenger tenders a certain sum, wiiieh the conductor claims is not sulSeieut, the conductor may retain it to cover the dis- tance already traveled and still eject the pas- 8en_rer, althougli he tenders the full fare after tiie train is sto[)ped: lloffbauer v. D. ct N. W. R. Co., 52 Iowa, 342. 2131. Carrier's lien. Sec. 2191. A common carrier has a lien upon the luggage of a passenger for the payment of such fare as he is entitled to from him. This lien is regu- lated by the title on liens. Lien on luggage. — A carrier may retain the Bentley, TA Ga. 311. See general principle luggage of a passenger cither to secure the pay- staged in regard to lien for work and labor per- nicnt of fare or of charges for extra luggage: forineil ab >ub personalty, ]>ost, sec. 3031. H'o//'v. .S'««!mer.>s, 2 Camp. 031; Xordemeyery. Lien for ft eight: Sec. 2144. LoKsdier, I Hilt. 409; Sout/i-west U. R. Co. v. 372 Title VII. Cuap. V.] COMMON CARRIERS. §2104 AFtTICLE III. COMMON CARUIERS OF PROPERTY. 2194. Liability of inland carriers for loss. Si^c. 2194. Unless the consignor accompanies the freight and retains exclu- sive control thereof, an inland common carrier of property is liable, fi'om the time that he accef)ts until he relieves himself from liability- pursuant to sections twenty-one hundred and eighteen to twenty-one hundred and twenty-two, for the loss or injury thereof from any cause whatever, except: 1. An inherent defect, vice, or weakness, or a sjjoutaneous action, of the property itself; 2. The act of a public enemy of the United States, or of this state; 3. The act of the law; or, 4. Any irresistible superhuman cause. In'aiid carrier defined: See ante, sec. 2087. liinbiiity as warehouseman: See antt-, sec 21-'0. Coiisicnor accompanying. — If the owner of cattie g'lcs with tlicui on a rtiihvay, iiinler ail aj;;ceiiioiit with the railway company to give ccrlain attention to the catt'.c, t;;e com- ixroy will not be liable for losses occasionccl hy his inaticutiou to the duiics untlertakcn by h.m: South Ala. etc. li. ('o. v. llcnlein,ijl Ala. GOG; Toia-r v. Utira etc. IL Co., 7 Hill, 47; Glcuson V. Goodrich Traiisportatkm Co., 32 Wij. 83; liOikrkh v. RuUroad Co., 7 ^V. Va. 64; lilinnis Cent. U. Co. v. I/dl, L8 111. 400. Auiiihcr common instance is wliere a passenger rctaicis tlie custody of his baggage: ISee note, sec. 21S'2, r.itle. Comnioii^ement of liability. — As soon as Ml actual delivery to the carrier, his servants, or s.imc one auLhori^ed to act for him, is com- plete, the liability connnences: Story on Bailni., &ec. c:?_\ Tomiinatdon of liability: See sees. 2118- 2V22, (I life, and notes. E;-:;c3tion3 t;j liability as insurers. — Giibci. i. Inherent defects.— This rule in- cudes decay of fruits, the diminution, leakage, or evajioraiion of li{]uids, and the spontaneous combustion of ).oods. In al) these eases where the negligence of the carrier docs not co-oper- ate in tho loris, ho wi!l be excused: L:;wson on Cuntiactjcf Carriers, l."j; Story on Bailni., 492a; 3 Keni's Com. 200-.'>01; llaHtlii-is v. Pep yer, 11 Pick. 41 ; Angell on Carriers, sec. 21 1. The cariier is liable for the proper storage, and must f' How directions in that rcspcci:: Angell en C ir.icrs, sec. 212. Live aninals ai'e also included in this exception to whatever extent they i.;jure themselves or one another impelled by Lh'.>ir inherent vices and propensities: An- gell on Carriers, sec. 2' 4. In this case, as be- fore, no negligence of the carrier must inter- vene: Mich. It. Co. V. McDoiioiiijh, 21 Mich. IG.'j; Kaiixan Par. li. Co. v. Ueijuolth. 8 Kas. 623; Cliirb- v. Rochester etc. R. Co., 14 N. Y. 570; O/iio etc. R. Co. v. Dunbar, 20 111 G23; Er^in.i V. Fdchhurij R. Co., Ill iMass. 141; //ar- ris v. yorl/ieru etc. R. Co., 20 N. V. 232; Pa-t Ten iK-s-scr etc. R. V. U'/iit'/e, 27 Oa. 5.35; U'eUh v. Pittstiiirj etc. R. Co., 10 ()!uo St. G3; Lawson on Contracts of Carriers, Ki. .SV liiKi i-rl^liahh' ar/iile-: See hifrn,9.ec. 2201. Subci. 2. Public enemy is one witli whom tho nation or slate is at o[)en war, and pirati'S the enemies of all mankind: Story on Bailm., sees. 512, 52G; Angell on Carriers, sec. 200; 3 Kent's Com. 21G, 209; Pic/cervig v. B inlay, 2 Roll. Abr. 248. But a loss by thieves or rolibcrs: Coijga v. Bernard, 25 Ld. Raym. 909; Angell on Carriers, sec. 200; Boon v. /he Bel- fast, 40 Ala. 184; '//all v. Ckenei/, 30 N. II. 2(5; or by embezzlement: Lawson on Contracts of Carriers, 15; or by rioters or insurgents: Cog ih v. Bcruarl, supra; Forward v. Piltard, 1 T. R. 27; Story on Bailm., sec. o2G; unless such insurrection assumes the magnitude of an in- ternational war, as in the case of the 1 ite civil war in this country: Ilulharl v. /lardcn Ex- press Co., 10 R. I. 251; Smith v. Braze'toii, 1 Heisk. 414; Leiris w l.udirlcl; Q Col. 3S0. Subd. 3. Act of lav/. — \Vh«>n go :)ds are attached in the hands of the carrier, he cannot give them nj) to the consignee while the attach- ment is pending: S.'i'rs v. JJiivis, 1 Black. 101; or when they :re taken out of his possession by any legal process: Stiles v. Davis, supra; Vail \VirJJe v. U. S. Mail Co., 37 Barb. 122; Burton v. WilLluson, 18 Vt. 18G. But when such seizure is made, the carrier must immediately notify the consignor of that fact, and must assure 1 imself that the procccil- ings are regular; but he is not bound to as-. rt Mo. R. Co. 18 Iowa, 555; I^orter v. C/iica'jo /-.s, 24 N. J. li. 0'J7; Mirliaelx v. New York Ci'idral R. Co., :>0 N. Y. 5G4; Railroad Co. v. Rrcvrs, 10 Wal!. 17U; Me.rritt v. lJar!e, 31 Barb. 38; Law- fcon on Cuutracts of Carriers, 10. Hi'inote vcjl'/rffiirr. — Antecedent negligence, inisi'easance, or nialfeaf-amc, operating as a re- mote cause of t!ic los>, will not preclude the carrier fi'om exeuiption from liahility for such loss if it occurs proximately from the a'^t of Ciod; bat any contributory, concuri-eut, or immediate default or negligence will: 16 Cent. L. J., p. IS.j; see also Lawsou on Contracts of Carriers, 11, 12. Pre.srrvat'on of damaged gods. — It is the duty of the carrier to preserve the goods damaged by the act of God, at least such por- tion of them as retain commercial value: Craig V. Childres.^, Peck, 270; Day v. Rhllaj, 16 Vt. 48; Railroad v. Rcevrs, 10 Wall. 17G; A'as'iville It. Co. V. Dav'd, G Heislc. 2G1; Chonteniix v. Leech, 10 Pa. St. 224; T/i,', Jlagoie Hammond, 9 Wall. 435. At all events, the carrier will be liable for the proportion <>l damage resulting from his own lack of care: Faulkner v, Wright, Kice, 107. 2105. IVhen exemptions do not apply. Seo. 2195. A common carrier is liable, even in the cases excepted by the List section, if bis ordinary negligence exposes the property to the cause of the loss. See notes to sec. 2194, ante. Iil86. LiahiUlij for delay. Sec. 219G. A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence. [Amendment, approved March 30, 1874; Amendments 1873-4, 251; took effect July 1, 1874.] See notes to sec. 2194, ante, paragraph "Re- solely: Empire Trans. Co. v. Wallace, GS Pa. mote Negligence," and sec. 2172, ante; Lawsou on Contracts of Carriers, sec. 187. Influx of business.— If a railroad is well equipped, and a delay is occasioned by an un- usual influx of business, bey>r delay in the carriage of goods where the delay is caused solely by armed violence of strikers, who were employees recently discharged from the carrier's employment: P. Ft. W. ih C. R. Co. V. Hazm, 84 111. 3G; P. C. d: St. L. R. W. Co. V. HoUovv'll, 05 lud. ISS. See, on the other hand. People v. N. Y. Cent. P. P. Co., 27 Ail). L. J. 105. Negligsnoe. — Carrier held liable where en- gineers refused to work: Blarkstock v. Neio York P., 1 Bosw. 77; 20 N. Y. 43; see also Peck v. IFce/js, 34 Conn. 145; Angell on Car- use extraordinary exertions or extra expense to Hers, sees. 283, 291; and see Read v. St. L. K, surmount obstacles caused by the weather C <1;^. 7'. Co., 60 Mo. 199. 2197. Liability of marine carriers. Sec. 2197. 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. 2198. Same. Sec. 2193. The liability of a common carrier by sea is further regulated by acts of congress. See also sec. 20S8. See 9 U. S. Stats. 635; R. S., sees. 42S2 et seq. General average: See sees. 2143 et seq. 2199. Perils of sea, what. Sec 2199. Perils of the sea are from: 1. Storms and waves; 2. Rocks, shoals, and rapids; 3. Other obstacles, though of human oi'i"an; 4. Changes of climate; 374 Title VII, Chap. V.] COMMON CARRIERS. §§ 2200-2203 6. The confinement necessary at sea; 6. Animals peculiar to the sea; and, 7. All other dangers peculiar to tbe sea, Perils of the sea.— "Angell on Carriers, arising from the wind and weather, the state sees. llJG. 216, and the case oi Amer v. Ast($-, of the ocean, and its rocks and shores:' I'ars. 6 Cow. 20(), particuhirly referred to in sec. Merc. Law, 44o:" Commissioners' note. 170, Id. The whole question discussed in sec- See also excellent interpretations of "perils tions named, xvy)ra. In its connection with of the sea" and synonymous terms, witli vo- niarino insurance, this question is discussed in lumiuous citations in Lawson on Contracts of 2 Pars. Marit. Law, p. 219 et seq. 'By this Carriers, 229 ctseq., and extensive note to Van phrase " perils of the sea "is meantall the perils Horn v. Taylor, 41 Am. Dec. 2SL incident to navigation, and especially those 2200. Liinitations of liability ivithoui nofice. Skc. 22C0. A common carrier of gold, silver, platiua, or precious stones, or of imitations thereof, in a manufactured or unmanufactured state; of time- pieces of any description; of negotiable paper or other valuable -writings; of pictures, glass, or chiuaware; of statuary, silk, or laces; or of plated ware of an}^ kind, is not liable for more than fifty dollars upon the loss or injury of any one package of such articles, unless he has notice, upon his receipt thereof, by mark upon the package or otherwise, of the nature of the freight; nor is such carrier liable upon any package carried for more than the value of the articles named in the receipt or the bill of lading. \Ame)idmnil, apjiroved March 30, 1874; AmeixlmeiUs 1873-4, 251; took effect Juhj 1, 1874. J 22C1. Ddivery cf freight beyond usual route. Sec. 2201. If a common carrier accepts fi-eight for a place beyond his usual route, he must, unless he stipulates otherv;ise, deliver it at the end of his route in that direction to some other competent carrier carrying to the place of address, or counected with those who thus carry, and his liability ceases upon making such delivery. Delivery to comiecting carrier— It is well pany who receives and books the goods lialjla Betlled tliat the contract of a corporation to to tlie end of the route. The American cases carry Ijcyond its own line is not ulli-a virrit. are collected in Lawson on Contracts of Car- Under such contract, all connecting carriers he- riurs, ood. See I'ercmi, v. C. P. It. //., 4 West conic his agents, for vvliose negligences and de- Coast Rep. .372, where a carrier contracting to faults he is rcbpousible: lludiield on Carriers, carry goods licyond the terminus of his line was sees. 190-i97; Lriee on Ultra Vires, (Jretn's held liable for a loss occurring on a connecting ed., app. 3, p. G7:i; Wheeler v. S. F. tfc 11. R. V»., line. 31 Cal, 4(3. In tlie absence of this section the Liniit-ii§ liability. — Mere delirery of a re- rect ipt of freight for the wliole distance would ceipt does not make its terms conclusive up»a be jiririiuj'ucic evidence of a through contract: th<; shii>i)er: P"^l(ii>jiiiiij Co., 8 11. L. Bri(]8. Bradley, 23 Conn. 1G7; Uvnt v. IJa^bK, 24 Over ohargmg for fare or freightage a mis- Me. 33'J; Saltus v. EoertU, 20 Wend. 2G7. And dSuicaiior; i'un. Code. sec. bio. ARTICLE IV. COMMON CAKRIEKS OF MESS.\GE3, 2207. Order of fransmiit parties wiio ai'e seriously annoyed nu;^iouer3' note, by dciays which, uevertlieless, cannot be shown 370 Title VIII, Chap. I.] TRUSTS IN GENERAL, §§ 221^2218 TITLE YIIL Chapter I. Trusts in General 2215 II. Trusts for the Benefit of Third Persons 2250 must be borne in mind that tlie latter relates The follo\\ing note by tlie commissioners throws light ni'on their design in dividmj; tiie enbject of trust in the code: " Tliis title sliouhl be read in connection with the title on 'uses and trusts,' sees. 847-871, inclusive, and it to real property only, and 'uses and trusts' are treated as estates. In tliis title 'trusts* are considered as relating toproiJcrty generally, and treated in the light of obligatious. " CHAPTER I. TRUSTS IN GENERAL. Article I. Natltie and Creation of a Trust 2215 II. Oni.iGATioNS OF Trustees 2228 III. Obligations of Third Persons 2243 ARTICLE I. NATURE AND CREATION OF A TRUST. 2215. Trusts classified: Sec. 2215. A trust is either: 1. Yoluntavy; or, 2. luvoluutary. Trusts clasGified. — In the above classifica- tion, the code commissioners upc the terms "voluntary" and "involuntary" in place of "cxnrets" and "implied, constructive, or re- 6ulti:ig " trusts. They eay: " When a trust is involuntaiy; or in other words, \vhen a trust is cnated by implication, result, or construc- tion of law, from tiie acts of the parties, thcj' will lie held by the law to the performance of the trust, whether they are willing or unwill- ing to accept the situation — tliat is, when a tiust is raised by law and thrust upon the conscience of a party as the result or construc- tion to be put U)ion his own acts, in order to do complete justice, the acceptance or refusal 2216. Voluntary trust, what. Sec. 221G. A voluntar}^ trust is an obligation arising out of a personal con- fidence reposed in, and voluntarily accepted by, one for the benefit of another. Voluntary trust defined. — The following and it will be found by reference to the of the party to be charged witli tlie trust can not alter his legal or e(|uitable liability to act as trustee, and to do all tliatis requircil of him to execute the trust. To this extent it will be seen that a voluntary trust corresponds to ex- press trusts, and involuntary tiusts to implied, resulting, and constructive trusts, as hereto- fore (lelined by Lewin, Hill, Perry, and other writers on the stibjeet of trusts." For a judicial interpretation of the code pro- visions with respect to what distinction is pre- served by it Ijetween express and implied or resulting trusts, see Estate of Uiiiddey, 58 Cal. 457, 4S3. numerous eases cited in the course of this title tiiat little or no distinction is made between trxistues, strictly so called, and any other per- sons who accept tlie [lei'sonal confidence of another. 'For the bcnclit of anotlicr.' No one can be a trustee for himself. ]>nt a trust created for the joint benefit of several persons may be held by one of tliem: Sec ox parte Claltoii, 17 Jur. flSS. And a trust has been sustained for tlie benefit of a liorse: PettingcUl V. Peitiwjcill, 11 L. J. Ch. 17G." explanation of the reason for this definition is given by tiie commissioners: "A trust Sidelined by Scory as an cquitabl» title to property: Story's E(]. Jur., sec. 904. But this i^a very narrow dulinition. So far as his tibligations are concerned, a technical trustee stands upon the same footing with a confidential agent or adviser, u gi.ardian, etc., and there is little diO'erence, so far as business relations arc con- cerned, between his position and that of a husband, wife, parent, or attorney. The eon- iidenee reposed is the essence of the relation, 2217. Ltvdlinilary trust, what. Sec. 2217. An involuntary trust is one which is created by operation of law. Involuntary tusts. — Examples of tlii.s chss the note to section So.'J, ante, on resulting trusts, of trusts in ngard to realty will be found in And see, generally, sections 2223, 2224. 2218. Parlirs to the contract. Sec 2218. The person whose confidence creates a trust is called the trustor; 377 15 2210-2223 OBLIGATIONS. t^^iv. Ill, Paet IV, the person in whom the confidence is reposed is called the trustee; and the person for Avliose benefit the trust is created is called the beneficiary. The following reason for the names of the (see Webster's Dictionary, where it is S])elled finrties .alio\c used is given by the commission- 'truster'), and is entirely api)lic.J)lo to tli9 era: '"Lewis, Iliil, ami other writers call the person who creates a trust. The wonl 'bcne- orcator of the trust the 'settlor,' a very objec- iiciary' is recommended by Story's Eq, Jur., tionable word. Trustor is aa English Avord aac. '62i, in jylaMe oi cestui que trust." 2219. Wliat confifilutes one a trustee. Sec. 2'219. Every one who voluntarily assumes a relation of personal con- fidence with another is deemed a trustee, within the meaning of this chapter, not only as to the person who reposes such confidence, but also as to all persons of whose affairs he thus acquires information which was given to such person in the like confidence, or over whose affairs he, by such confidence, obtains any control. 2220. For what purpose a trust may be created. Sec. 2220. 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. "The titles referred to relate to real prop- interested therein bear toward ench other, or €rty only. This title has reference alike to the obligations which arise from such relations:" reiil and personal propertj', and considers more Commissioners' note, particularly the relations which the persons 2221. Voluntary trust, how created as to trustor. Sec. 2221. Subject to the provisions of section eight hundred and fifty-two, a voluntary trust is created, as to the trustor and beneficiary', by any words or acts of the trustor indicating, with reasonable certainty: 1. An intention on the part of the trustor to create a trust; and, 2. The subject, purpose, and beneficiary of the tnist. Creation cf trust as to trustor. — To the pose thereof, and the persons beneficially inter- validity of a trust affecting realty, a writing is ested should be clearly ascertained, see 1 Perry necessary except as to such trusts as are ere- on Trusts, od ed., sec. 8G; '2 I'omcroy's Eq., ated by operation of law: See sec. 852, ami note, sees. 1003, 1016. Likewise, while it is essential a.tt''. Bi'.t trusts of personal props'rty may be tliat the intention to create tlu; trust be c'ear, created verbally : SlU'c]/ v. Ilodijdon, 52 Oal. no )>recise form of words is necessary: 2 Pome- SGo; Eaton v. Cook, 25 N. J. Eq. 55; Clanp v. roy's E (., sec. 1009, and note. Emery, 98 111. 52;j; DavU v. Co'nirn, 123 Mass. Precatory trusts. — See a valuable collection 377; C'hace v. (Jhnpin, 30 Id. 12S; I'ay v. ."^im- of decisions on this branch of tlij subject in the onons, 11 H. I. 2GG; Days. RqIIi, IS N. Y. 443; note to Harrison v. Harrison's Atlnix, 44 Am. 2 Pomeroy's Eq., sec. 1008. This section liys Dec. ."57.']. dawn a rule of evidence; it does not puriiort to Creation of involuntary trust: See sees, limit the cases in which a trust may be created: 222 >, 2221. Estate of Hiaddcn, 58 Cal. 457, 481. Tru.3t3 for beueSt of third persons: See That the subject-ujatter of the trust, the pur- sec. 2251, pO'it. 2222. IIoio created as to trustee. Sec 2222. Subject to the provisions of section eight hundred and fifty-two, 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. Creation of trust: See remarks in note to Trusts, sees. 259 et seq., for a full discussion last section. of this subject. Acceptance of trust: See 1 Perry on 2223. Involuntary trustee, who is. Sec. 2223. One who wrongfully detains a thing is an involuntary trustee thereof for the benefit of the owner. 378 Title VIII, Chap. I.] THUSTS IN GEXERAL. §§ 2224-2229 Involuntary trustee. — The corle conimis- Bioiiers, anplying tlie principle of the next section, sr.y tliab " tliis is a familiar jirinci- ple of eijuity in ca^e.i of title gained t!iron';'i fraud, mistake, undue iufluence. or the viola- tion of a trust;" and conclude: " Tiicre seems to bo no rca^ion for refusing to extend tlie ru!c to all ca^ea of \vron<_;fuI detention." A judg- ment debtor rcmai^u.ig in posseJiaiou of the premises afrer shoiff's sale is a trustee for the jitirchaser of the rents and profics collected: Harris v. liPi/nolch, 13 Cal. 514; see also Krpiitz V. Lir'uKjdo:), 15 Id. 3H. A jdedgee of a note and mort<.ja2e is trustee of the excess above what ii necessary to extinguish the debt: Poiice V. 2I(:El(>]/, 47 Id. 155. And this trust charan- tcr will fi.llow and be stamped upon land into w'licli the inonoy is conver'ed: Id. Graat333 of publij lands ai tntstees One .niplication of t!ie principle of this section may bo found in a person's o'ltainiug from the government a patent for lands to which others arc entitled. In sucli case the law raises a trust in favor of one really in interest: See ]Vi!son v. Cad-o, ?,\ Cal. 423; Salmon v. Sj/moiul^, 30 Id. :r)l; niiidi'-orth V. Lake, :;;} Id. -250; Haven V. Ilaiiips, G3 Id. 452; Eoi-rdi'^ti v. Ma>jhew, 2 West Coast Rep. 72o; Brannock v. Jlonroe, 3 Id. 4U. Comp3Ti3ation of involuntary trustee; See sec. 2275. 2224. Incoluntari/ trust resulting from nrgligcnce, etc. Sec. 222 i. One who gains a tiling by fraud, accident, mistake, undue influ- ence, tlio violation of a tnirst, or other ^Yrong•ful act, is, unless he has some other and better right thereto, an iuvoluutary trustee of the thing gained, for the benefit of the person who would otherwise have had it. Trust.3 arising from fraud, etc. — This class 525. An administrator who becomes a pur- of trusts, known in the text-books as construe- cliascr through a third person of tlie estate sold tivo tru'-.ts, is very large, it being f,)unded upon "fra'ids committed by one party upon finother: " 1 Perry on Trusts, sec. IGfi. Seo alcO 2 Pomcroy's I]q. .Jur., sees. 1044 et scij., where it is stated that all instances of this si)e- cies of trust may bo referred to " what eiuity • ('■nominates fraud, either actual or construc- tive, a •' an cs -cntiai element, and as their final soun;c." Each of tliesc authors gives many iliust'ations. In this state are the following caaes: One who, ciiiployud to assist another in by him may bo compeilod to convey the land to tlie heirs: Guerrero v. B Ulcriuo, 43 Id. 118. A husband who redeems property with his wife's funds holds them in trust for her: C'rei/ier V. Greiner, 5S Cal. 115; and hi i tloiiec occupies the same position: Id. In C ffcif v. Gremi fit-Id, G2 Id. G02, a guardian was charged as trustee for his wartls, whose reaky he had conveyed to lilmf;clf j.ersonally. ImpMed trusts, that is, trusts arising where one takes property subject to trust witii notice procuring a conveyance to a tract of land, gets thereof, or not for value: Scea/t^^', sees. Go9, S70, tie conlidence of that other, and in violation a ul the note to sec. 803; CvUisult also sees, thereof obtains a conveyance in his own name, 2243, 22G3, and note. will lie held to be t!ie trustee of his employer: Resulting trust must grow out of the facts Jr(6.s'e?' V. A'///'/, .'i3 Cal. 343. 8o one of several existing at the time of tlie conveyance, and partners who buys land for them all, and takes cannot arise from a mere parol agreement that the deed in his own name, is a trustee for his th j purchase sliall be for the bcueiit of anotlier: copartners: SrUembre v. Putnam. 30 Id. 493. A husband wlio jirocures his wife to join with him in tlie execution of a mortgage of her land to secure bis debt, which on foreclosure he dis- charges wiJi money of his own through the medium of anoLher, and takes a deed for the land througli that ot'ier, will be de dared a trustee for his wife: llodsey v. Wilkie, oo Id. Hunt V. Friedman, 03 Cal. 510. And see /?o.'<- fr.'.s V. Ile'dij, 3 West Coast Rep. 310, where a trust resulted in favor of one v.'lio furnished part of the consideration for tlic conveyance taken in the defendants' name. See ;dso IJ'or- tnouili V. Johnson, 53 Id. 021, where a trust was civated in favor of one whose money was used to buy realty. ARTICLE II. 0BLIGA.TI0NS OF TRUSTEES. 2223. Tna^tee'i^ ohJigation to good failh. Sec. 2228. In all matters connected with hia trust, a trustee is bound to act in the highest good faith toward his beneficiary, and may not obtain any advan- tage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. Obligation of good faith. — The various sumption that where the trustee has gained any sections of this article illustrate the general benelit from the bencliciary such trustee did principle here formulated, and section 221/5 not act in good faith, adds to the requirement of good faith the pre 2220. Trustee not to use propertu for his own profit. Sec. 2229. A trustee may not use or deal with the trust property for his own profit, or for any other purpose unco:r.i"c;tc;d with the trust iu any manner. 370 §2230 OBLIGATIONS. [Div. Ill, Part IV, Dealing with the tnist property.— That the trust'ji; cauiiot deal with t!ie trust property 80 as to (Icriw! a Ijeiicfit to liim^elf id a fiinJa- mentul [niiioiplc of tlic law of trusts. It has been asscted in iniijiberless instances: See Pafje V. Ka/lt'P, (J Cal. '211; Gnnler v. Jrme^, 9 III. G4:;; St',1. /)i-;fo V. S. D. ., 44 Id. 10,1; and nt/te to sec. 2224; Common.- wealth V. 2,IcAIU.; Uaideij v. Cramer, 4 Cow. 717. And the iDsses, if any, muat be borne by the trustee: Oal.iand Bavhof Snohirjsv. Villcox, CO Cal. 120; and see Sharpaiein v. Pricdlamlcr, 6.3 Id. 78. So if tlie trustee buys the trust property at public or private sale, he takes sub- ject to the bencficiarv's riglit to claim t'le profits: S,nith v. Luii.sfiig. 22 N. Y. 530; Schuo- mahr v. Van U'i/':c .Si Barb. 457; I Perry on TVusts, sec. 428; and the California cases mi/>ra, under section 2224; 2 Poineroy's Eq., sec. 958, in the note to which the decisions are classified as regards purchases hy the trustee directly from himself, at auction, at judicial sale, througli a third ]jerson. as agent for a third porso:i, and from a co-tru tee. .-V judge who orders a sale and has the power to confirm or set it aside comes within tiio rca- sin of t'.ie iiile that truiteci and otlier lidiicia- rics cannot make a valid purcliase of any jiart of the estate in respect to whicli t!iey iiave du- ties to perform: I'rary v. Co.'h i, 55 (lal. G7. Gubd. 3. "A distillation h:i-j b33:i taken between trustees, strictly so called, and other persons occupying a conlidcntial relation; and it lias been said that t'.ie former cannot jiur- cluise the trust property under any circum- stances whatever, wit'.iout being saljject to a resciosinn of tlie sale at the discretion of the betieaciary: Story's Eq. Jur., sec. 311. But this distinction, if it exists at all, does not ap- ]V'ar to be well founded:" Commissioners' state- nifut. Purcliassr from trustee will be charged with the trust or not, depending upon such purchaser's knov/ledge of tlic real situation of tlic parties: See sec. 22G3. and note. Presumptiou of undue influence So careful is the law of tha interests of the trus- tee that it presumes transactions between the trustee and beneficiary to have been entered into by the latter under undue influence: vSec. 2233; and all violation of the duties of the trustee prescribed in this article are declared to be fraudulent: Sec. 2234. 2233. Certain transaclions forbidden. Sec. 2231). Neither a trustee nor any of his agents may take part in any transaction coucerniug the trust in which he or any one for whom he acts as agent has an interest, present or contingent, adverse 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 influence on the part of the trustee, permits him to do so; 2. When the beneficiary not having capacity to contract, the proper court, upon the like information of the facts, grants the like permission; or, 3. "When some of the beneficiaries having capacity to contract, and some not having it, the former grant permission for themselves, and the proper court for the latter, in the manner above prescribed. Trustee hiving interest adverse to the fi i the beneficiary's right to set aside the trust. — One occupying the 2:)osition of trustee cannot put hi ;isc'.f in a position adverse to liii beneficiary: A.i'lmr.-i v. Pnift, 41 C.d. 30J; .S'a.v, iJlryj V. S. J). ,(■ L. A. H. R. Co., Id. 1 Jj; Wilbur V. L,in,lr, A > Id. 200; Chambcr'ahi v. Pac. Wool. Co., o\ 11. 103; Prac// v. Co'Jt>/, 7)3 I<1. G7. As is said in DavU v. Rock Cri'dz I,. F. & }.I. Co., 53 C.il. 359, 334, "one cannot faithfully .serve two masters." For cxain ;;le, a trustee cannot buy claims against t'.ie trust estate at a discount, and m die a profit on tiierii: DavUw Rock Crrrk L. /•'. oiit. Undertaking inconsistent trust: See sec. Meie knowlcdi^e of a breach of trust is not Beneficiary assenting. — A beneficiary who, having full knowledge of all the facts, and of his 2231. Trustee's influence not to he uncd for /;/.s cuhantage. Sec. 2231. A trustee may not use the influence which his position gives him to obtain any advantage from his beneficiary. The decisions cited and references made This section, however, prohibits tlie employing under the prior sections of this article fiunish of trustee's influence, even for the benefit of illustration of the principle here formulated, another: See 1 Perry on Trusts, sec. 433. 2232. Trudee not to asfiume a trud adverse to interest ofbenefician/. Sec. 2232. No trustee, so long as he remains in the trust, may undertake another trust adverse in its nature to the interest of his beneficiary in the sub- ject of the trust, without the consent of the latter. Assuming another trust. — This section is must not place himself in a position inconsist* but a iuithcr np|ilication of the principle stated ent with lus duty to Lis lieneficiaiy. in another form in section 2230, that the trustee 2233. To disclose adverse interest. Sec. 2233. If a trustee acquires any interest, or becomes charged with any duty, adverse to the interest of his beneficiary in the subject of the trust, he must immediately inform the latter thereof, and ma}' be at once removed. Trustee's duty to disclose adver.^e interest: Compare with sec. 2230. Removal of trustee: See sees. 2282, 22S3. 2234. Trustee guilty of fraud, when. Sec. 2234. Every violation of the provisions of the preceding sections of this article is a fraud against the beneficiary of a trust. Trustees violation of duty is a fraud, ber is guilty of framl, in the absence of any An executor wiio mingles the funds of the es- evidence of intended or actual fraud: JJslate of tate with those of a lirni of which he is a mem- William Stotl, 52 Cal. 403. 2235. Presumption against trustee. Sec. 2235. 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 beneficiary, are presumed to be entered into by the latter without sufHcieut consideratioUj and under undue influence. £23S. Trustee mingling trust propertij with his own. Sec. 223G. A trustee who willf ull}' and unnecessai-ily mingles the trust prop- erty with his own, so as to constitute himoelf in appearance its absolute owner, is liable for its safety in all events. Mixing trust -witli private property. — mere debtor: CInntcr v. Jaiipa, C Cal. 043. Trustees ought not to mingle the trust prop- For example, if a trustee deposits trust money erty with their own private i)roperty. It' it is in bank in his own name, or mixes it witli his done unnecessarily, the trustee will be liable own, he will be liable in case of the failure of for any loss, no matter how occasioned: See 2 the batilicr, or fur any othur loss; 1 1 'err}' on Poiiieioy's Eq., sec. 1076, note 1. The trustee Trusts, sec. 403; Srkonl Dis. (JrceiiJicUl v. Fimt cannot, by sucii commingling of funds, change Nat. Hank, 102 Mass. 174; Mason \.]Vhile]iornt ilia character from that of trustee to that of a 2 Coldw. 242. 381 2237-2243 OBLIGATIONS. [Div. Ill, Part IV, But where a decerlent mingled the fntuls of has only a claim against the estate, which the trust with liis own, so that iiL-itlier the must be presented to the executor for allow- trust fund nor the propeity into which it was auce: Lathrop v. Bamjdoii, 31 Cal. 17. converted could be identified, the beneliciary 2237. ITrasure of Uahility for breach of trust. Sec. 2237. A trustee who uses or disposes of the trust property, contrary to section twenty-two hundred and twenty-nine, may, at the option of the bene- ficiary, be reqiiired to account for all profits so made, or to pay the value of its use, and, if he has disposed thereof, to I'eplace it, with its fi'uits, or to account for its pi-oceeds, with interest. Trustee's liability for misappropriation of property. — Where the trustee deals with the trust property as his own, or for any pur- pose not connected with the trust, the bene- liciary jnav claim all the profits: MrKiii'i/d v. Walsh, '24'N. J. Ecj. 498, 539; Norri^i' Appml, 71 Pa. St. lOG; and see ante, sec. 222i), and note. Compound interest vnll be allow^ed where the trustee mingles the tiust fund with his own; t. e., the lc;^alrate, wiLh annual lests: Eda'e ofStott, 52 (Jal. 409; L'.sfrt'c of Clark, 53 Id. 315. See Iha n(.te in 1 .Si.therlaud on Daina'^e'', 623 et s^q., on t'lis suliiict. Liability for uou-inve^tmeni of funds; Sec sec. 22G2. post. De^jree of diligence requisite: Sec 2259, post. 2238. Same. Sec. 2238. A trustee "who uses or disposes of the trust property in any man- ner not authorized by the trust, but in good faith, and with intent to serve the interests of the beneficiary, is liable only to make good whatever is lost to the beneficiary by his error. 2239. Co-trustees, hoiofar liable for each other. Sec. 2239. A trustee is responsible for the wrongful acts of a co-trustee to which he consented, or which, by his negligence, he enabled the latter to com- mit, but for no others. Co-trustees, how far liable for eaoli other. — As a general rule, one trustee is not liable or responsible for the acts or defaults of his co-trustee: 1 Perry on Trusts, sec. 415; StcWs Ap-peal, 10 Pa. St. 149; Banks v. Wtlkc-*, 3 ibandf. Ch. 99; Latrohe v. Tlernan, 2 ild. Ch. 474; Bofjd v. Boyd, 3 Gratt. 113. So where for the sake of conformity only two trustees sign for money received by but one, both are not by that act alone made responsible for the money; the one who actually received the same is liable: GriJTni v. Macaulay, 7 Gratt. 47ii; Stoioe V. Boicen, 99 Mass. 194; Sinclair \\ Jack- son, S Cow. .543; Grmj-v. Reamer, 11 Bush, 113; Peter v. Uevfrlti, 10 Pet. 531, 5G2. For all wrongful acts of a trustee to which his co-trustee consented, or which the latter made possible by his negligence, he will be liable. For example, where one trustee knows that his co-trustee has collected money and has omitted to apply it to the purposes of tliH trust, and such trustee takes no steps to have a proper application of the funds made, they both will be liable: lUnrj'jold v. Bingfjold, IS Am. Dec. 250; Laroe v. Douglass, 13 N. J. Eq. 308; SrJineckv. Schneck, 16 Id. 174; Fonte v. Ilorton, 3G IMiss. 350. If a trustee surrenders the entire control of the trust property to his co-trustee, the former will be responsible for the losses occasioned by tiie wrongful acts of the latter: Gray v. Reamer, 11 Bush, 113; Spencer v. Spencer, 11 Paige, 299; RoyaWs Adm'r y. MrKmrJe, 25 Ala. 303. See further discussions of this question in the note to Jones' Appeal, 42 A:n. Dec. 2SS; 1 Perry on Trusts, sec. 417-420; 2 Pomeroy's Eq., sees. 10G9, 1081, 1082. Compare also this section with sections 2308 and 2288. Remedies against co-trustees, -whether joint or several: See 2 Pomeroy's Eq., sec. 1081, where in discussing the joinder of trustees as jiarties defendant, a distinction is diawn be- tween the case where the trustees are liable to the beneficiary by reason of some act not purely tortious, and where such is the character of the wrongful act. In the former case, contribution existing among the trustees, they all should be joined; in the latter case not. ARTICLE in. OBLIGATIONS OF THIKD PEKS0N8. 2243. Third persons, when involunlary trustees. Sec. 2243. 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 cousideration. Implied trustee: See the subject of this section discusaed in the note to sees. 85C and 853, ante, 382 Title Vin, Chap. IT.] TRUSTS FOR BENEFIT OF THIRD PERSONS. §§ 2244-225S 2244. When third person must see to application of trust properly. Skc. 2244. One wbo actually and in good faith transfers any money or other property to a trustee, as such, is not bound to see to the application thereof, and his rights can in no way be prejudiced by a misapplication thereof by the trustee. Other persons must, at their peril, see to the proper application of money or other property paid or delivered by them. Applicaticu of purchase money. — "Here- above] to all persons:" See the instructive toforc," say the code commissioners, " tlie hiw chapter in 2 Pei'ry ou Trusts, sees. 788 et seq. has applied this rule [of the last sentence CHAPTER IL TRUSTS FOR THE BENEFIT OF THIRD PERSONS. Abticle I. Nature axd Creatiox of the Trcst 2250 II. Obligation's of Trhstees 2258 III. Powers of Trustees 2267 IV. Rights of Tefstees 2273 V. Termixation of the Trust 2279 VI. Sl'ccession or Afpoixtjient of New Trustees 2287 ARTICLE I. NATTTKE AXD CEEATIOX OF THE TRUST. 2250. Who are trustees within scope of this chapter. Sec. 2250. The provisions of this chapter appl}' only to express trusts, created for the benefit of another than the trustor, and in whicli the title to the trust l)roperty is vested in the tiTistee; not including, however, those of executors, administrators, and guardians, as such. 22C.i. Creation of t7'ust. Sec. 2251. The mutual consent of a trustor and trustee creates a trust of ■whicli the beneficiary may take advantage at any time prior to its rescission. Revolring trust, beneficiary's consent the proceeds of a sale of land in trust for third necessary: .See sec. '2'2S0. persons, they may enforce the same: Betlis v. PromisG for benefit of third person: See Tovonsend, 01 Cal. 333. aide, sec. JiiGO. Andwliere one agreed to hold 2.2,b2. Trustees appointed by court. Sec. 2252. When a trustee is appointed by a court or public officer, aa such, Buch court or officer is the trustor, within the meaning of the last section. 2253. Declaration of trust. Sec. 2253. The nature, extent, and object of a trust are expressed in the declaration of trust. 2254. Same. Sec 2-54. 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. ARTICLE II. OBLIGATIONS OF TRUSTEES. 2258. Trustees must obey declaration of trust. Sec. 2258. A trustee must fulfill the purpose of the trust, as declared at its creation, and must follow all the directions of the tinistor given at that time, except as modified by the consent of all parties interested, in the same manner and to the same extent as an employee. 383 f § 2259-2263 OBLIGATIOXS. [Div. Ill, Part IV, Authority of trustee, generally: See eeo. 22G7, pvsl. Trustee must follow declaration of trust: Sec I'omcroy's J']fi., sec. 10G2; coinparo with the duty of ciuployeo, sec. 19S1, ante. 2259. Dcrjrce of care and dlUgmce in rxecution of trust. Sec. 2250. A trustee, wlietlior he receives any compensation or not, must use at least ordinary care and diligence in the execution of bis trust. Dllisenoe in esacutias trust. — Trustees structivc note to the same section, points out that ni:uiy of the cases which say that a trustee is liable only for rrasfta nc(j!cnt'ta usj this term as synonymous with "absence of ordiiiaiy caro and dill ;cncc adequate to tlio particular cape." Obli2:itio:i3 of trustees: Sec, generally, anie, sees. 2228 ct seq. must Uc.e ordinary care and diligence in per- formance of tho trust; that is, as explained in 2 Potneroy's Eq., sec. 1070, the same care, skill, and prudence "a man of ordinary care, skill, and prudence \7ould use ia his own trans- actions and with his own property under the like circninytances." That author, in an in- 2260. Duty of trustee as to appointment of successor. Sec. 22u0. If a trustee procures or assents to Lis discbarge from bis office, before bis trust is fully executed, be must use at least ordinary care and dili- gence to secure tbe appointment of a trustworthy successor before accepting his own final discharcfe. reckless trustee liavingbeen appointed in place of an indolent but responsible one: " Commis- sioners' note. Su3oession or appointment of new trustees: See j^o.it, sec. 2237. Duty to procure successor. — "This pro- vision ij new, and is intcndetl to protect Ijene- ficiaries from a hasty resort to the courts in order to shake olT the responsibility of a trust, a proceetlin^ by which they have been some- times irremediably injured, an insolvent and 2261. Investment of money l)y trustee. Sec. 22G1. A trustee must invest money received by him under tbe trust, as fast as be collects a sufficient amount, in such manner as to afford reasonable security and interest for the same. Investment under direction of court: See lie Cardwcll, Cj Cal. 137, for liabiliiy of guai*- diati for mak'ng investment without authority of the court. Assent to improper investment given by a beneficiary who is siii j'tri^, and has full knowledge of the facta, will estop liiin from holding the trustee accountable: Klii'/v. Talbot, 40 N. Y. 70; Campbell v. Cam-pbclt, 33 Ga. 304; Wood V.Wood, 23 Am. Dec. 451. But such assent must bo with full knowledge of the facta and I f their legal effect: Adair v. J), imnier, 74 N. Y. 533. See the same principle in note to sec. 2230, ante. Investment of trust funds. — This section makes it the duty of t!ie trustee to invest trust money, and tlie foilowing section imposes the penalty for not so doing. Posncroy, 2 Equity, see. 1073, classifies trusts with respect to the investment of funds into those where the instrument creating the trust specifiL^s securi- ties or directs moiles of investment, and into those where the instrument is silent on the subject. That author's exposition of this branch of the law will be found of value. In a note to Xi/i-e\t Estate, 40 Am. Dec. oOG, m ill be found a collection of decisions arranged accord- ing to the various kinds of securities into which the trustee may put the trust fund. 2262. Interest, simple or compound, on omission to invest trust moneys. Sec. 22G2. If a trustee omits to invest tbe trust monej's according to tbe last section, be must pay simple interest thereon if such omission is negligent merely, and compound interest if it is willful. Trustee's lia'oility for interest: Compare with sec. 2237, ante. 2263. Purchase by trustee of claims against trust fund. Sec. 22G3. A trustee cannot enforce any claim against tbe trust property ■which be purchases after or in contemplation of bis appointment as trustee; but be may be allowed, by any competent court, to charge to the trust property what ho has in good faith paid for the claim, upon discharging the same. Puroli-^sinscl bts against the trust estate of all knowledge of the unlawful dealings of probibliod: See sec. 2230, aide, and note. Notwithstanding this section, a bona ftde purchaser from a trustee of the subject of ilie trust, the pure!iascr not knowing that the trustee liad acfpiii'cd an interest in the same, •was allowed to hoM as against the beneficiary. Say the court: *' Wc think tliat iu the absence the trustee, the title of the purchaser was not alfectcd by the fact that the traoteo was deal- ing with t!ie trust property for his fiwn benefit:" Care;/ v. Brorvii, 02 Cal. 373. Ihit a purchaser from a trustee with notice will he charged with the trust: Cavagnaro v. Do7i, 03 Id. 227. 384 Title VIII, Cuap. II.] TRUSTS FOR BENEFIT OF THIRD PERSONS. §§2267 2273 ARTICLE III. POWERS OF TRUSTEES. 22S7. Trustee's powers os agent. Sec. 22C7. 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, wiLhin the scope of his authority, bind the trust property to the same extent as the acts of an agent bind his principal. Povyer of trustee. — For a full discussion of Cal. 2r>9, where the power was given to a the powers of trustee as gener:.! agent of the trust property, see 2 Perry on Trusts, sees. 473 ct scc|. Examples iu tliis state of the power of trustee under the instrument creating the trust are the following: Beatty v. Clark. 20 Cal. 11, determining that the trustee had ex- ceeded his authority in borrowing money on his note as trustee for other purpo-es than tho-ie S[)ecified m t!ie trust; Tyler \. GnuKjer, 4S LI. 239. In Gr{{fin v. Blanchar, 17 Id. 70, a trustee of a naked trust was dcciled to have no power to nioi tuage the trust estate. A con- veyance to one in trust to rent or sidl the ])rop- erty passes the fee, ami the trustee has power to convey tlie legal title: Thompson v. McKay, 41 Id. 221. The trustee's authority may be for a limited time Oi 'y, and after the expiration of that period his power ceases: Tyler v. Grainjer, 4S trustee to sell lands within t^ixty days. Actions by trHt:/ee.f. — Ejectment cannot be maintained by a trustee against the beneficiary or liis assigns, where such trustee's powers, de- fined by the declaration of trust, extend merely to Iiolding tlie title as security for a debt: Tyler V. Grinujer, 48 Cal. 259. But that the trustee maj', in general, luing actions for the recovery of trust estates, or to prevent waste or trespass thereon, see Tyler v. Jloiii/htm, 2j Id. 2G. Poivers are to l>e construed most favorahly to the beueliciary: Spraijiie v. Edwards, 43 Cal. 230. Pov7ers to tw^o or more trustees: See sec. 22SS. /'0.sC, and sec. 8i)0, e consideration Pomeroy's I*]q., s<'C. 108"), in note. money, while deemed a ti-ustee for the real One w!io, deemiii'^ himself to l>e the OM'ner party in interest lie will be considered as hold- ofland, jiay3ofriiieuinl)rances, isentitledtoreim- iiig the leg:il estate as security for the repay- Imrsement from t'losc for whom lie isadjud'jed meat of his advances: JJiUdtnx. J Sternes, 9 i'aige, 338; V/aystaff v. Lowerre, 23 penaation, vylien: See sec. 2275. 2.21b. Involuntary trustee. Sec. 2275. An involuntary trustee, who becomes such through his own fault, has none of the rights mentioned in this article. Involuntary trustee defined: Sees. 2217, 2223, 2224, ante. ARTICLE V. TERMINATION OF THE TRUST. 2273. Trust, liow extinguished. Sec 2279. A trust is extinguished by the entire fulfillment of its object, or by such object becomiog impossible or unlawful. "So as to real trusts: Matter of Craij, 1 doubtless as to personal trusts:" Commission- Barb. 33; Matter of De Kay, 4 Paige, 403; and ers' note. 2280. Not revocable. Sec 22S0. A trust cannot be revoked by the trustor after its acceptance, actual or j^resumed, by the trustee and beneficiaries, except by the consent of all the beneficiaries, unless the declaration of trust reserves a power of revoca- tion to the trustor, and in that case the power must be strictly pursued. 2281. Trustee's office, how vacated. Sec 2281. The office of a trustee is vacated: 1. By his death; or, 2, By his discharge. 2282. Trustee, how discharged. Sec. 2282. A trustee can be discharged from his trust only as follows: 1. By the extinction of the trust; 2. By the completion of his duties under the trust; 3. By such means as may be prescribed by the declaration of trust; 4. By the consent of the beneficiary, if he have capacity to contract; 5. By the judgment of a competent tribunal in a direct proceeding for that purpose, that he is of unsound mind; or, 3S6 ipensation of Trustee. Except as pro\ ^ f the Code of Civil Procedure, wiien a d lO *3 is silent upon the subject of compensati tru&"tj^ tied to the same compensation as aii ex If it SIX the amount of his compensation, he is e to the am&, thus specified and no more. If it direc he shall be aiiowed a compensation, taut does not spec rate or amount, he is entitled to such compensation as ; reasonable under the circumstances. [If there are more trustees the compensation shall be apportioned the trustees according to the services rendere5 "Under this head the representation of one a branch of service, and are defined in the title person by anotlier is the only subject treated, on that subject. So far as these reiatiuiis ore- The ri\;hts acquired by tliird persons against at.; a mutual trust, they are re^'ulatod by the both the principalaud the agent are here stated, title ou trust:" Commissioucrs' note. The mutual relations of principal and agent are ARTICLE I. definition of agency. 2295. Agency, what. Sec. 2295. An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency. Delegated authority. — In every definition of an agent the one clement in common is the recognition of the derivative authority of the agent; and tliis clement is t!ie real distinguish- ing feature of the contract of agency: Story on Agency, sec. 3; ICvans on Agency, 1. Agent and attorney. — Tlie terms "agent" and "attorney" are fret|uently used synony- mously: Pratt V. Putnam, 13 Mass. 303; l)ut this is inaccurate. The term "agent" is generic; the term "attorney iu fact "is specific. An attorney in fact is an agent. An agent is not always an at- torney in fact. The terms are not synonymous: Portfrw llerminvi, 8 C;d. 019. Attorneys are of two kinds, attorney at law and attorneys iu fact. The latter term may include, says Mr. Story, all other agents employed in any business; but it is sometimes used to designate person t who act under a special agency, so t!iat tliey are appointed hi factum for the d 'cd or act rei|uired to bo done: Story on Agency, soo. 25. liut iu this state it has been decided tiiat the term \a used iu the latter sense: Porter v. JJenuaini, supra. Immoral and illegal agencies cannot be established: Wliarton on Agency, sec. 26; Story on Agency, sees. 11, 19.3. Mniter and servant: See sees. 2003 et seq. Factors: See sees. 202G et seri. Agents: See article, sees. 2310-2022. 2296. Who may appoint,, and xoho may be an agent. Sec. 229G. Any person having capacity to contract may appoint an agent, and any person may be an agent. "Who may be a principal. — Idiots, luna- tics, and other persons not NHJ^'/nv's-, are wholly incapable; and infant? and married women are incapable, except under special circumstances: Story on Agency, sec. G. JUiirrinl woman. — A married woman, not a 7 Ga. 5G8; Cumminrjs v. PowpU, 8 Tex. 90; Fcnjusoii v. Bell, 17 Mo. 351; S/irop/iire v. B.'trjis, 4 5 Ala. 108; Bazemai v. Browiiiiitj. 31 Ai-k. 334; C/ia/dn v. Sha/rr, 4'.) N. Y. '412: Danatl v. (Iravcff, 7 Bush, 4o7. But "a;i infant may autiiorizj anotlier person to do any act sole tradci', cannot, except perha[is as to her wliicli is for his l>ene(it:" Sbory on Ajeucy, sec separate estate, appoint an agent or attorney either l)y deed or parol: Patlon v. Slpward, 10 Ind. 233; Huwnrr v. Conanf, 10 Vt. 9; Gillespie V. WorJ'onl, 2 Col. G33; Ca/dwell v. lVa//ers, 18 Pa. St. 79; Phi'Ups v. Burr, 4 Daer, 113. But see section 1,58, ante, as to married woman's power to make contracts in California. IiifanU cannot delegate authority: Sec. 33, ante. The general rule appears to bo that all acts done by infants through an agent or attor- ney in fact are void, nob merely voidal)!e: Fct- row V. Wiseman, 40 Lad. 198; Strain v. Wrljht, G; Tucker V. Morcland, 10 Peters, .53; Wii uton on Agency, sec. 12. An infant may execute a promissory note by an agejit, and an infant ])romi3fje may also authorize ani't!ierto transfer a note by indorsement for him, an 1 the transfer is valiil unl;il avoided: IIa^lii)[/i v. iJoUarhide, 21 Cal. 135; irardijv. Waters, 33 Mo. 4)0; see also WhUnci/ v. Dutch, 14 Mass. 457. Tlie doc- trine that an infant's acts done thro igh an .agent are Void should at all events be restricted to acts done uadjr mere naked powers of attorney to do acta requiring an authority under seal: 13 3Sd Title IX, Cuap. 1.] AGENCY IxV GENERAL. §§ 2297-2304 Am. Law Rev., sec. 2SS; Ewell's Evans on Agency, 12, note. i\'>^/ c imp3'(---i. — When one of -the parties to a contract is of unsound mind, and the fact is unknowii to the other contracting parly, no advantage having been taken of the lunatic, this will not vacate a contract, especially when it is executed in whole or in part anil the parties cannot he wholly restored to their original pos tion: Youikj v. Stevens, 43 N. H. 133; />//- reus V. MrKensic, 23 Iowa, 343; Pcrnoii v. li'ar- ren, 14 Barb. 4SS; Beats v. See, 10 Pa. St. 56; Cai>r,pry. Slhiner, 14 K. J. Eq. 389; Wilder V. Wial.it/, 34 Ind. 181; McCormick v. Liltfer, 85 111. G2; see also Ewell's Evans on Agencj^, sec. 13. "W^io may be agents. — Generally all per- sons, except noa compote-f mentis, may act as agents: Governor \. Daily, 14 Ala. 4G9 (a slave); JJroicu. V. Hartford Fire Ins. Co., 117 ilass. 479 (an infant partner); Telker \. Emerson^ 10 Vt. 033 (wife); McKinlej v. MeGretjor, 3 Whart. 309 (wife); Wharton on Agencj', sec. 14; J/r- Williams V. Detroit Cent. Mil'.t Co., 31 ilich. 274 (corporation), and cases there cited. A person liaviiuj an cdver-^e interest to tli« principal in any transaction cannot I)e an agent of sucli principal in that transaction: Bunker V. Mil'S, 30 Me. 431; Walker v. Palmer, 24 Ala. 358; Story on Agency, sec. 9; Adanvt v. Sralp-1, 57 Tenn. 337; lOwell's Evans on Agency, 18; Ba)Jis v. Jiulah, 8 Conn. 145. 2297. Agents, general or special. Sec. 2297. An agent for a particular act or transaction is called a special agent. All others are general agents. V/hsn the agent exceeds his special au- thority, a' id in so doing makes his principal lia'ile, the latter has a claim to conipe;isation from the agent for such damages as have re- BuUed from the unauthorized act: Dodije v. Til'-stoii, 12 Pick. 32S; Clark v. RiherU, 23 ■Midi. 500; Ifoice v. Southerlaml, 39 Iowa, 484; Price V. Kei/es, 02 N. Y. 378; McDermid v. Cotloii, 2 Brad. A pp. 297. Question of fact. —The agency and extent of autlionty is a question of fact for the jury: Diekiujion Co'oiti/w Mississippi Valley Ins. Co., 41 Iowa, 280; Beringor v. Meanor, 85 Pa. St. 223. A general agent may bind his principal when acting witiiin the scope of the general autliority ccnfeircd upon him, even when he violates certain iirivate instructions: Story on Agency, sec. 7.3; Allen v. Oijden, 1 AVash. 174; Bryant v. Moore, 26 Me. 84; Fitz-^im- mons V. Jostin, 21 Vt. 129; Bailer v. Maples, 9 Wall. 706; Morei/ v. Wehh, 85 Barb. 22; An- d'-rsou V. Slate, 22 Ohio St. 305; Willard v. Bnckinglinm, 30 Conn. 305; Morton v. Scidl, 2.? Ark. 289; Palmer v. Cheney, 35 Iowa, 281; Wharton on Agency, sec. 130; see sec. 2317, 2)oxt. A special agent does not bind his principal when he exceeds the special and limited au- thority conferred upon him, unless the prin- cipal has held him out as possessing a mora enlarged authority: See note to Uossiter v. Rossder, 24 Am. Dec. 05; Aiidreirs v. Knee- la ml, 6 Cow. 354; Herbert v. Kneeland, 32 Vt. 310; Jlateh v. Tarjlor, 10 N. H. 538; see sec. 23 1 7, post. Partnership. — Each partner is held out as a general agent, and his acts are Ijinding, not- witlistanding he has violated p'rivate instruc- tions or secret articles of copartnership: United States Hank v. Binney, 5 Pet. 529; CoUyer on Part., by Phillips, c. 1, pp. 212-215, and note. 2233. Agency, actual or ostensible. Sec. 2298. An agency is either actual or ostensible. Acttial agent's authority; Sees. 2315, Ostensible agent's authority: Sees. 23L5, 23IG, 2ol8, 2ol9. 2317-2319, 2334. 2299. Actual agency. 81:0. 2299. An agency is actual wlien the agent is really employed by the principal. 2330. 0.- v. Drike, 40 P.arb. ISO; K'lsey v. Nat. P.!:, f)9 I'a. Sc. 426; Hammond v. Ilnniin. 2) Mich. 371; Rc'se v. Medlock, 27 Tox. 120; Wharton on Agency, sec. 83. 390 Title IX, Chap. I.] AGENCY IN GEXERAL. §§ 2311-2ai3 Betajniiir/ benefits. — Tlio iirincipal, after re- tainini; the benefit^;, witli full kuoulctl;;c of tlie facts, is estopped from denying tho act of tlie assumed a;4cnt: Grojan v. San Francisco, IS Cal. 590; see Wharton on Agency, see. 89, where many cases illustrating this familiar principle are collect-.d. llriniihiij t^iitt. — Suing on a contract necessa- rily ratifies it: Partridge v. White, 56 Me. 5G4; Jheinuin v. Walker, '21 Ark. 539; llai-ris v. Miner, 2S 111. i;J5. So suing an agent for the proceeds, and not fur the damages caused by his unauthorized acts, i. e., suing in contract and not in tort, ratifies the contract: JJa7n v. Boodji, 10 N. H. 411; President of Ilarlf^rd Bank v. Barry, 17 Mass. 97; Frank v. Jenkins, 22 Oliio St. 597; Bank of Beloit v. Bcale, 43 N. Y. 47;{. Any acts in pais tending to show adoption of agent's course may i)e received to show ratifi- cation: Wharton on Agency, sec. 87; Story on Agency, sees. 25o-"25G. And the conduct of the principal is construed liberally in favor of the agent: Id.; Minturn v. Burr, IG Cal. 107; Wri'jt V. Salomon, 19 Id. 04. Ratifying fraud. — When a principal ratifies a sale he rati lies the acts, however unfair, by whicii the sale was brought about, and becomes responsible for them: Bennett v. Jndson, 21 N. Y. 2;)3; Mandorffw IVicki-r.shum, Go Pa. St. 87; Cochran v. Vhitwood, 59 111. 53; see also note to sec. 2312. 2311. licdificafion of part of a transaction. Sue. 2311. Ratification of part of an indivisible transaction is a ratification of the whole. at the time of the alleged ratification: Smith v. Tracy, 30 N.Y. 79; Bakhrin v. Bnrroivs, 47 Id. 199; and see note, " Knowledge of the Facts," sec. 2310, aide; and Cochran v. Chitivood, 59 IlL 53, contra; and see sec. 2323, post. Partial ratification. — A principal ratifying what was within the range of his intended in- structions does not ratify acts on the part of his agejit of which he was not infoi-med. Thus, in ratifying a sale, he does not thereby ratify au unauthorized warranty of which he is ignorant 2312. W]ien ratification void. Sec. 2312. A ratification is not valid unless, at the time of ratif^dng the act done, the principal has power to confer authority for such au act. Ratifying illegal acts, forgery. —Although it is a cardinal [iriuciplc that illegal or immoral acts, or acts against public policy, cannot be ratified — qiod ah initio iion va'et, tractu tern- peris non eonvalescit: 1 Story's Eq. Jur., sec. 307; Evans on Agency, 49; Story on Agency, see. 241 — j'et it has been held in the United States that a person may ratify the forgery of his name: Howard v. Duncan, 3 Lans. 174; Forsyth V. Day, 4G Me. 17G; Fitzpatrirk v. School Commissioners, 7 Humph. 224; Green- 2313. Ratification not to work injury to third persons. Sec. 2313. No unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent. frld B'k V. Crafts, 4 Allen, 447; Garrett v. Yon- tn; 42 Pa. St. 143; Union irk v. Middlebrook, 33 Conn. 95; Thome v. Bell, Lalor's Siipp. 430; Boljy V. Cossitt, 73 111. G3S; Stcings v. Wiler, 32 Id. 387; Wharton on Agency, sec. 71. Prior to tli3 code, the same doctrine as that embodied in the above section was adopted by this supreme court: McCraken v. San Fran- cisco, IG Cal. 591; Zottman v. San Francisco, 20 Id. 101; Peo2jle v. Swift, 31 Id. 28. More extensive rule. — In speaking of this section, the commissioners say: " This is per- haps a broader rule than heretofore existed. But great diiiiculty has been felt in attempting to reconcile the cases." The section is indeed broader than the rule generally recognized: See Story on Agency, sees. 24G, 247. A cor- rect statement oi the principle, however, seems to be the following: A third party whose rights have not accrued intermediately, /. e., since the act oi the unauthorized agent and prior to the prop.oscd ratification, is ]>recluded United States, 4 Ct. CI. 511; Xorfon v. Bidl, 43 Mo. 113. Tills supreme court would seem at least by implication to have coincided in the above rule. "A ratification rcIaLiug back to the inception of a transaction cannot defeat the rights of third persons acquired between the act of the agent and the ratification by the principal, as attachments levied on property of a dei)tor after sale by or to an agent:" Tay- lor V. Bobinson, 14 Cal. 39G. A careful examination of the cases leads almost iucvitaldy to the conclusion that the re- from contesting the right of the principal to go suit in many of them depended upon some in back to the original inception of the contract; but innocent strangers with intervening vested rights, intermediately accrued, are not so pre- cluded. Examples under tlie first clause may be found in Armstroinj v. Gilchrist, 3 Johns. Cas. 424; Pratt v. Putnam, 13 Mass. 379; Copdand v. Ins. Co., 6 Pick. 198; Uo'jers v. Kn: eland, 10 'Wend. 218; Vincent v. Rather, 31 Tex. 77. Examples under the second clause maj' be found in Freeman v. Bo>/nton, 7 Mass. 4S;>; Bossiter v. Bossiler, 8 Wend. 497; Bank of Utica V. Smith, 18 Johns. 230; Stoddart v. tervening circumstances of an cqtiitab!e char- acter. " The true distinction seems to be this: If ratification on the part of the principal was an act to bo anticipated as morally certain by parties having an adverse interest, then ratia- c .lion i.3 no surprise to tli'in, and cannot mis- leail ihcm, and they are bound to treat the 01 iglnal unautho'-ized act as one wliich is sub- sccjueutly to be authorized:" Wharton on Age-ncy, sec. 80; see aliO Mi /turn v. lutrr, IG Cal. 107. See. generally, Story on Agency, sees. 245, 24G; Wharton on Agency, sec. 78. 391 §§ 2314-2318 OBLIGATIONS. [Div. Ill, Paet IV, 2314. Fieficiasion of ratification. Sec. 2o14. A ratification may be rescinded when made without such consent as is required iu a contract, or with an iiuperl'ect knowledge of the luaterial facts of the transaction ratified, but not otherwise. See note, 2310, ante. "Kimvvledge of the Facts," sec. For decisions held in consonance with the text, see Wharton ou Agency, sees. Gj, 73. 2315. 31<'as(ire of agent's authority. Sec. 2315. An agent has such authority as the principal, actually or ostensi- bly, co)ifer.s upon him. 2316. Actual aulhoritij, what. Sec. 231G, 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. Agent acting under general authority: See uott! to sec. 2207. Illustrations of puwer of agent to bind liia piincipal by acts within the general authority are: liailroad conductor removing a passenger from the train: Kline v. C. P. li. Co., 37 Cal. 400; negligence of rail- road employee causing damage: Taijlnr v. W. P. R. 11. Co., 43 Id. 323; admissions of agent made at the time the act to wliich they relate was done, and with reference to the subject- matter: Garfull V. K. Frry W. Co., 11 Id. 3j; Neely v. Najlee, 23 Id. ir)2; executing in- strument: Shaver v. Ocean M. Co., 21 Id. 45; tuL'grapli company's employee sending false message: Bank of Cal. v. IF. U. T. Co., 52 Id. 280; and .=ee infra, sec. 2310. Actual agent defined: Sec. 2299l 2317. 04enuble authority, what. Sec. 2317. Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess. Ostensf^le a^snt deSnsd: Sec. 2300. Esto-pp2l — Tliis is a statement of the famil- iar principle that the agent's authority extends as far as he has been held out to the world as possessing the power which he nses. The whole principle i.f implied agency is really an application of the doctrine of estoppel in pais. Modes of implying authority. — From the iiature and cu.'itoinary inethodi of the business in M-liich the agent is employed by the principal, even though he be employed for the first time; whether express instructions are given o'- not: Ilrlman v. Potter, Cal. 13 (in- stance of imautliorized execution of promissory note); Kor'h River Hank v. Aymir, 3 lidl (N. Y.), 2G2; ( lajlin v. Lenhcim, 60 N. Y. 301; see note, "Usage," sec. 2297, ante; and Story on Agency, sec. GO. From a prior course of dealing between the principal and agent, although the very nature have had no notice of the termination of the agency: Van Diasen v. Star M. Co., 3G Cal. 5'71. From, a subsequent ratification: See sees. 2307, 2310, 2312-2314, and notes, ante. F.om acquiescence. — Wlien one permits an- ot'.ier to act for him in his i>rest-nce, so that in- nocent third parties are affected, lie cannot afterwards, as again?t such thiid parties, tlis- pute such agency: Forsi/thev. Day, 4(3 Me. 196; Kclspy V. Nat. Hank, 69 Pa. St. 426; Lewis v. Boivrbo/i, 12 Kan. 186; St. Lmiis Pa/:ket Co. v. Parker, 59 III. 23; Darnell v. Griffin, 46 Ala. 520. And where one permits another to hold himself out to the public as his agent, though not within his presence, he is l^ound by his acta wiihin t'.ie implied scope of such authority: Gdbrailh v. Linebenjer, 60 N. C. 145; Fai/le Bark v. Smith, 5 Conn. 71. CircumstcUitial evid?n3e.— The proof of of the agent's business might not require any the appointment of an agent may be obtained such course of dealing, whether express in structions r.re given or not: Van Dusen v. Star etc. Co., 30 Cal. 571 : Davidson v. Dallas, 8 11. 227; De Bo v. Cordes, 4 II. 117; IVeed v. Car- penter, 4 Wc-nd. 211); Ew/le Dank v. Magdl, 5 Conn. 71; Morey v. Webb, 58 N. Y. 350. So, even rJrcr the agency lias ceased, a princip.-.l may be bed in favor of those dealing with the agent, wiio hj,ve been accustomed so to do, and by moans of circumstantial evidence: Patterson V. Keystone, 33 Cal. 300; Fai v. Birh-nond, 43 Vt. 25; Br'dey v. Poole, '.KS Miss. 160; Seeds V. Kahler, 70 Pa. St. 268; /]•> rd v. Klein- haw, 29 }ilich. 332; M'lyer v. /.;.s-. Co., 38 Iowa, 331; JVeal v. Pa'ton, 40 Gj. o'i'i: Ilolinii^wrth V. Jfolshansen, 25 Tex. 628; GiUi / v. Lake Big- ler Co., 2 Nev. 214; Wharton on Agency, sec. 44. 2318. Ajod'a authority as to persons having notice of restrictions upon it. Sec. 2318. Every agent has actually' such authority as is defined by this title unless specially deprived thereof by his principal, and has even then such authority ostensibly, except as to persons who have actual or constructive notice of the restriction upon his authority. 392 Title IX, Chap, I.] AGENCY IN GENERAL. §§ 2319, 2320 fact is bound to know, at his peril, what the power of the agent is and to umlerstand its legal effect;" see also MiidjeU v. Dnii, \1 Id. 139 (collection agent); see note "General" and " Si)ecial Agent," sec. 2297, ante; see also Earp V. Ridiardson, 81 N. C. 5; Silliman v. Frfdericksburq li. Co., 27 Gratt. 119; Ruj^'erty V. llaldron, ini^ Pa. St. 438. Duty of inquiry. — When an agent, whether geneial or special, appears to exceed the au- thority which lie may justly be presumed to possess, it is the duty of the third party, exer- cising the caution of a business man, to inquire wheLber such assumed authority is duly con- ferred: See Wharton on Agency, sees. 137-l:i9; B'mn V. nohertson, 24 Cal. 127 (attorney in fact). " The party dealing with an attorney in 2319. Agent's necessaty authorily. Sei'. £319. An agent has authority: 1. To do every'thing necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency; and, 2 To make a representation respecting any matter of fact, not including the terms of his authority, but upon which his right to use his authority depends, and the truth of which cannot be determined by the use of reasonable diligence on the part of the person to whom the rej^reseutation is made. Authority of agents. — GeneraVy. — In or- agency impliedly incorporate this usage in their der to bind liis principal, the agent must pur- sue hi3 authority accurately and punctiliously. A mere ci.cumstantial variance from the au- thority in its execution will not invalidate the act; lut a substantial variance (not mere mat- ter ^i form) from the authority will not bind the principal: Sortk Ulver Wk v. Ai/niar, 3 Hill (N.Y.),2G2; Nixonx. //y.«ero(/,rj^o\ms.i>$. The execution of a bond under seal instead of a note did not bind: F.rst Xni. B"k v. Hay, G3 Mo. 33; May r a, d Aldermen of Little Rock v. State B'k, 3 Ark. 227. _ Exiept'ion. — This rule is to be received sub- ject to the exception of the cases M'here there is a general authority with secret limitations and instructions: See note, "General Agents," sec. 2297. aitp. Su'jd. 1. ""Witliin th3 scopa of his au- tliovity " A great many cases illustrating tliis fundamental principle wiil be found in Wharton on Agency, sees. 120-129; e. y., a principal is liable for the rent of a place of business occu- pied by hisagentwliile carrying on the business for which he was employed: Tucker v. Woohfy, 64 Earl). 142; G Lans. 482. The same principle is expressed in Blum v. Robi'iiyoii, 24 Cal. 127. It was held within the Bcope of the authority of a foreman of a foundry to assign accounts due the founclry in payment for money borrowed by him for tlie use of the foundry: Ilo.skiiis v. Stonin, 01 Id. 338; and see cases and references fiupra. Usago interprets tlie autliori'y. — When it is the usage of a place that a mercantile agency shou d bo executed ia a particular way, tlie parties who authorize and agree to exercise this contract: Schuchardt v. Allen, 1 Wall. 359; Randall v. Kchlcr, 00 Me. 37; Da>/ v. Holmes, 103 Mass. 30G; Smith v. I'racy, 36 N. Y. 79; Williard v. Backinjham, 33 Conn. .39."); Whar- ton on Agency, sec. 134; Story on Agency, sec. GO. Subd. 2. Representations. — The repre- sentations must be made at the time the contract is entered into, and nmst concern the stibject- matter thereof: 2 Staikie on Evidence, CO; Wharton on Agency, sec. 102; Story on Agency, sec. 133; Garfield v. K. F. Water Co., 14 Cal. 33; Keeley v. A^«f/^fe,23 Id. 1.j2; Pip v. Plullii>s, 32 Ga. 72; Briijhamv. Peters, 1 Gray, 139. 2320. Agent's power to disobey instructions. Sec. 2320. 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 prin- cipal that he should do so, and there is not time to communicate with the principal. Disobeying instructions. — Master of a ship. — The most familiar instance under this doctrine is the case of a master of a ship, who in sudden emergencies has forced upon him the character of agent and supeicargo, and may in Buch circumstances not onl}'^ hj'pothev'iate the freight, ship, and cargo, but also sell the ship and cargo; or where the iives of the crew can- not otherwise be saved, cast the whole cargo overboard: The Gratltudhie, 3 Rob. 255-2G0; The Parketl, 3 Mason. 255; United States Ins. Co. V. Scott. 1 Johns. lOG; Am. Ins. Co. v. Cos- ter, 3 I'aige, 323. I\ect'sstty. — The agent has a good defense al- way.o when he can siiow an overwhelming ne- cessity, as where, during the civil war, goods 393 2321-2323 OBLIGATIONS. [Div. Ill, Part IV, were taken from the cnstofly of the agent by fliscretion must, of course, be made apparent in t!ie opiiosing forces of the military antliorities Wealdei/ v. Pearce, o Ilcisk. 401; Grendea/v. Moodi/, 13 Allen, oG.'); see Sh^ao v. Stone, I Cush. 2"28; Forrcst.icr v. Uordman, 1 Story, 43; Dunar V. Peril, -i Chin. oGl. A(jpji/'s misconduct invcdidate!< the dcfenfte. If, however, this necessity and misfortune are encountered through the misconduct and cul- pable neglect of the agent, then tlie happening of such casualty is no defense: Wilson v. Wil- son, 2G Pa. St. 3'J4; ClccrJ: v. Nonrood, 19 La. Ann. 110; Iloadlcy v. Norih Trant. Co., 115 Mass. 301; llolUulay v. Kennard, 12 Wall. 27A. Sound discretion. — The exercise of a sound such cases: See Stury on Agency, 9Lh ed., sec. 119, note. See, generally, Story on Agency, sees. 85, 118, 141, 14-2, 193, 194, 198,208, 237; Wharton on Agency, sees. 231, 233, 255. Ambiguous instructions. — Where the in- structions are ambiguous, and the .ngent acta honajidc in accordance with their probable im- port and construction, he will not he hild lia- ble: Mechanics' Baidc v. Merchnnfs' Bank, G Met. 13; Foster v. Rodcwell, 104 Mass. 1G7; Long V. Pool, 08 N. C. 479; idursh v. Whit- more, '2\ Wall. 178; Merchants' B ink v. No,- tioncd Baiik of Commerce, 91 U. S. 92. 2321. Aiilhority to be construed hy its specific rather than bij its general terms. Sec. 2321. When an authority is given partly in general and partly in Hpecific terms, the general authority gives no higher powers than those specifically inentioned. General words in creating an agency must lie construed in reference to mattei's specially mentioned: Taylor v. RolAn^on, 14 Cal. 390; Story on Agency, sees. 02-71, and notes, 9fch ed., 1882; see note, "Ambiguous In- structions," sec. 2320, ante; see numerous casea supporting the principle in the above sectioa collected in Wharton on Agency, sec. 222, note. See also Id., sec. 223, as to presumption against grantor of power. 2322. Exceptions to general authority. Sec. 2322. An authority expressed in general terms, however broad, does not authorize an agent: 1. To act in his own name, unless it is the usual course of business to do so; 2. To define the scope of his agency; or, 3. To do any act which a trustee is forbidden to do by Article II., Chapter I,, of the last title. Subd. 1. Agent acting in his own name. — Thegeiieral rule ij that a person cimtracting as agent will be personally liable, whether he is known to be an agent ornot,inail cases vvhere he makes the contract in his own name, or volun- tarily incui-s a personal responsihility either ex- press or implied: Kirkpafrick v. Stabler, 22 AVind. 214, 2.')4, 255; Taintor v. Prenderijast, 3 Hill (N. Y.), 72; Simonds v. H.-ard, 23' Pick. 121; Chandler v. Coe, 54 N. H. 501; Story on Agency, sec. 269; see sec. 2335, post. A note signed " D. P. S., president of Pacific Wool- 2323. What included in authority to sell personal property. Sec. 2323. An authority to sell personal property includes authority to war- rant the title of the principal, and the quality and quantity of the property. Growing Company," is the note of S. and not of the company. The words following the si,;na- ture are mere desrriptlo personce: Chamberlain V. Pacific W. G. Co., 54 Cal. 103; and see sec. 2337, pod. Subd. 2. Defining scope of agency. See sec. 2319, subd. 2. ante, and note; Griswold v. Haven, 25 N. Y. 595. Sub. 3. Obligation of agen'-s as trustees: Sees. 2228-2239, ante; Ilubidoex v. Parks, 48 CaL 215. Authority to warrant. — Authority to sell includes a power to warrant the title and qual- jtj' ot tlie thing sold, but not to give unuaual warranties, such as that whisky sliall not be seized for violation of the revenue laws prior to the sale: Palmer v. IJafch, 40 Mo. 585; but see 2IcKni22, suhil. 3, ante; ^Yharton on Ilunsackcr v. Slur;/ts, 21) IJ. 142; Ilardaihurgh Agency, sees. 2;il-24G; Tuite v. Walcehe, 19 v. /jcicoh, 33 Id. 3 j(3. Cal. Gictiiig tlie property, no matter when he ac- of riff.sbargh v. Wti'dvlvad, 3G Am. Dec. 188; quired sucli knowledge, his principal is alFected Wharton on Agency, sees. 183, 184. There tliereby: " Donald v. Bcalfi, 57 Cal. 3J9, 405; are authorities also whicli hold that the notice, DiKliUed SpirU>., 1 1 Wall. 3Go; lloocij v. IJlancfi- to l)ind the principal, must be given to the agent ard, 13 N. II. 145; PaUmi v. Iii'i. Co.. 43 Id. in the particular transaction to which the no- 375; Jlart v. Bid:, 33 Vt. 252; sjo Wharton ticc relates: Biercev. Brd Bluff Hotel, ^l Cal. on Agency, sec. 179, and note; Story on Agency, 160; Whaiton on Agency, sec. 178. "In sec. 140, and note. 2333. Obligation of principal lohen agent exceeds his authority. Sec. 2333. When an agent exceeds his authority, his principal is bound by his authorized acts so far only as they can be plainly separated from those which are unauthorized. 2334. For acts done under a merely ostensible authority. Sec. 2334. A principal is bound by acts of his agent, under a merely osten- sible authority, to those persons only who have in good faith, and without ordinary negligence, incurred a liability or parted with value, upon the faith thereof. 395 |§ 2335-2338 OBLtQAflO^g; [piv. Ill, Part IV, See sec. 2317, ante, arrl note. jlerson caniiot liold the principal to a contract Nocioe of extent of agsnt's Ailthority will in excess of t!ie agent's aiitliority to make: be iiiiputed to one who dealt with the agent Hayes v. Vampbdl, 03 Cal. 143, havin;T reason to believe hinl such, and such 52335. When excldsive credit is giveyi to ajenl. Sec. 2335. If exclusive credit is given to an agent by the person dealing with him, his jirincipal is exonerated by payment or other satisfaction made by him io his agent in good faith^ before receiving notice of the creditor's election to hold him responsible. him: Mirfnrlanc v. Glnnnacopulo, 3 H. & N. 800:" Coinmissioncvs' note. Thomas v. Moody, 57 Cal. 21.5, furnishes an illustration of a principal unknown at the time of the transfactiou being held responsible for goods furnished the agent, the principal receiv- ing the beneiit thereof. ExGlusive credit to agentj "Story's Agen- 'cy, sec. 291; Fi^h v. Wood, A E. D. Smith. :!27; see I /fa Id v. Kenworthy, 10 Lixch. 7.'>9; Hyde v. Pak/e, 9 Barb. 150; Cheerer v. Smith, 15 Johns. i276; FreiKh v. Price, 21 Pick. 13; Filler v. t)6mmonirealth, 31 Pa. St. 406. If such credit is not given to the agent, mere delay in calling upon the principal does not exonerate Q336. Sights of person who deals with agent without knowledge of agency. Sec. 2336. One who deals with an agent Avithout 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 Bet off against the agent before notice of the agency. Setting off agent's debt against princi- former to set off a bad debt at the expense of pal's claim. — "If by due diligence the buyer the principal: " Eran-iv.Walii, 71 Pa. St. 71; could have known in what character the seller Jlarlbiirt v. Ins. Co., 2 Sumn. 471; Alilkr v. acted, there would be no justice in allowing the Li^a, 35 Md. 390. 2337. Instrument intended to bind principal does hind him. Sec. 2337. An instrument within the scope of his authority, by which an agent intends to bind his principal, does bind him if such intent is plainly infera- ble from the instrument itself. 21 Id. 45; Chamherlain v. Pacific IF. O. Co., 51 Cal. 103. For further examples, see Wharton on Agency, sees. 283-295. Hov/ agent should execute contract: Sec. 2343, in note. Intention to bind principal. — In the fol- lowing cases sufficient intention to bind the principal has been held to have been manifested in the instrument: Sayrc\.Nlc]i,ols.l GaX. 535; Haskell V. Cornish, 13 Id. 45; McDowdd v. BearR. Co., Id. 220; Shaver v. Ocean M. Co., 2333, Principal's responsihilitxj for agent's negligence or omission. Sec. 2338. Unless i-equired by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negli- gence 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. Liability of principcd for agent's negli- gence — It is an elementary rule that princi- pals are responsible to third persons for injury occasioned by the negligent acts of agents, and by their wrongful acts as part of their business as such: Taylor v. Western Pacific R. R, 4') CI. 323; Kline v. C. P. R. R. Co., 37 Id. 400; na,ik of California v. W. U. Tel. Co., I>2 Id. 2S0; Story on Agency, 9th ed., sees. 4.52^57, and notes, and see next section and note. Contractor's liability. — The maxim of the law i? above stated respowlcit superior; the question in applying it U, Whoso servant did ■the wrong? Tnis question arises with greate3t frequency in the case of injury done by the ■employees of one to whom the supervision of • the general work may have been given. It seems to be well settled at this day that one who has contracted witli a competent and fit person, exercising an in lepcndent employment, to do a piece of work free from the control of the employer, and according to his own meth- ods, will not be liable for the torts of such con- tractor, his suljcontraetors, or his servants: Boiwell V. Laird, 8 Cal. 4j9; Jun"s v. .S't/i Francisco, 6 Id. .528; Da PraH v. Lh-k, 38 Id. 91; Monjiii v. Bowm'tn, 22 M >. 53S; Kiii'i v. Neio York Cent. R. R., 03 N. Y. 131: Town of Flerrepont v. Loveless, 02 Id. 211; M-Gaiferty V. Spityteii Diujmd, Gl Id. 178; Blake v. Ferris, 5 KY. 43; Coomes v. /lowjhfon, 102 M is.s. 211; Aden V. Wlllard, bl Pa. St. 374; Conner s v. Hennessey, 112 Mass. 93; Robinson v. Webli, 11 Biisli, 404. The above principle has been ap- plied to negligent performance of street-work 396 TlTLB £K, CflAP. I.] AGENCY IN GENERAL. §§ 233D-2343 by a contractor, for which negligence the city was lield not responsible: James v. San Fran- cUco, supra; O'llale v. Sacramento, 4G Cal. 212; Krause v. Sarramtnto,4S Id. 221. There have been made exceptions to the above rule releas- ing frcm liability one who has turned over the entire control of tlie labor to be performed to a contractor: 1. Where tiie party procuring the work to be done is under Eome public duty, resulting from his peculiar situation aud relations, to see t!iat the work does not cause injury: Storrs v. City of Utica, 17 N. Y. 104; 2. Wiiere the work itself, whether well or ill done, is unlawful: Creed v. Hartman, 29 N.Y. 601; Cvff V. iVewark Ji. Co., 35 N. J. L. 17, 574; Water Co.v. Ware, IG Wall. 5G0; Clark v. Fry, 8 Ohio St. 338; IJola v. Sitthirjbouriie etc. Il'y Co.. IT. & N. 488; 3. Where 'it is neces- sarily productive of injury: Con/jreve v. illor- gav, 18 N. Y. 84; Congreve v. Smith, Id. 79; or, 4. Where it is very dangerous in its essential na- ture: 2 Dillon on 5lun. Corp. ,3d ed., 10.35-1057. Agents required by law.— The right of eeleclion is the basis of the responsibility of a principal for the acts of his agent. No one can l;e held responsible as principal who has not the right to choose the agent from whose acta the injury flows: Bosweli v. Laird, 8 Cal. 4G9. In the case of public agents, see Stoi'y on Agency, sees. 319-322, and notes. Pilots. — In The China, 7 Wall. 53, it was held that a law obliging a master to take the first licensed pilot that offered, and containing no provision exempting the vessel from liabil- ity, does not exonerate the vessel from such.', liability; this is contrary to the English cases on this point: See Story on Agenc)', sec. 456 a, and note. The question is settled in this state by section 2384, po'^t. V7illful and malicious acts of asent. — The following rule seems to be fairly deducible from the latest decisions: If an agent commit a willful, malicious, or intentional tort while engaged on his principal's business, the latter is liable therefor; aud whetlier such act was done while performing the, principal's busincsa is a question of fact for the jury, not of law for the court: Kline v. C. P.B. A'., 37 Cal. 400; J!e)ide!soh:i v. Anaheim Li'/hter Co., 40 Id. 578; Bank of Cal. v. W. U. Tel. Co.,Xvl Id. 280; Weed V. Panama J.'. R. Co., 17 N. Y. 3G2; Mali V. Lord, 39 Id. 381; Lee v. Sandi/ Hill, 40 Id. 442; Fra^ner v. Freeman, 43 Id. 556; Hinijins V. WaterrHei T. Co., 46 Id. 23; Cos- rjrevc v. Orjden, G9 Id. 255; Cohen v. Dn/ Dock ete.n. n. Co., 09 Id. 170; Peck v, N. Y. Ccn^ /.'. /?., 70 Id. 587; Mott v. Consumer.^' /ce Co.^ 73 Id. 543; Fiihkill Sav. Inst. v. Xal, iS% 8Q.4 Id. 1U2. See ?Wf<, sec. 2343, subd. 3. Punitive danjissea cannot be allowed;: against principal for willful; acts of agent? Turner v. Xorth Ueach etc. R. R. Co.. 3t Cal, 594; Mendelsohn v. Anaheim Lifjiilir Co., 40 Id. G57; ITo'jaii v. Providence di Worcester H, R. Co., 3 R. I. 88. 2239 Principal's responsibility fvr wrongs willfalhj committed by the agent. bEC. 2339. A principal is responsible for no other wrongs committed by his agent Iban those mentioned in the last section, unless he has authorized or rati- fied them, even though they are committed while the agent is engaged in hia service. See note to .sec. 2338. ARTICLE IV. OBLIGATIONS OF AGENTS TO THIRD PERSONS. 2342 . Wa rra n iy of authority. Sec. 2342. One who assumes to act as an agent thereby warrants, to all who deal with him in that capacity, that he has the authority which he assumes. An agent act:ng without authority may Damages for breach of warrant of au- be sued for tlie breach of warnmty: Noyes v. thoricy: Sec. 3318, po>t. Loriiiij, 55 Me. 4{iS; Balloux. Tcdhot. 10 Mass. 4G1; Jclinson v. Smith, 21 Com;. C27; Baltzen V. Nicolay, 53 N. Y. 4G7; or for the h)ss caused by the fraud or deceit: Lander v. ( 'astro, 43 CaL 497; Bar/'rity. Tucker, lOi'Mss.; White v. 2i'ctdi.soii, 26 N. Y. 117; McCurdyx. /'or/e}-<, 21 Win. 197; or wlien money has been paid to a pretended ngent the tort may be waived and the agent sued for money had and received: Lander v. Castro, 43 Cal. 497. Net liable in absence of fraud. — Tlie agent would not be personally liable, in the absence of deceit, \\ here the possible absence of author- ity was known by both parties: Story on Agency, sec. 2G5; A'^pinwall v. Torra:ire, 1 Lans. 381; Hall v. Luvderdnle, 4G N. Y. 70; Tiller v. >pradley, 39 G.a. 35; or would Iiave ' been known by jjlaintilT if he haacily to contract. Sec. 2345. The provisions of this article are subject to the provisions of Part I., Division First, of this code. "The rights acquired by third persons against both principal and agent are stated in this title. The mutual relations of principal and agent are a branch of service, and are de- fined iu tliat part of the code referred to in this section. So far as these relations create a mn- tual trust, they are regulated by the title on trust: " Commissioners' note. Part 1, division 1, sees. 25-42. 398 Title IX, Chap. I.] AGENCY IN GENERAL. §§ 2349-2355 ARTICLE V. DELEGATION OF AGENCY. 2349. Agent's delegation of his powers. Sec. 234:9. An agent, unless specially forbidden by his principal to do so, cau 7" delegate bis powers to another person in any of the following 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, law- fully perform; 3. When it is the usage of the place to delegate such powers; or, 4. Wlien such delegation is specially authorized by the principal. Subd. 1: Commercial Bank v. Norton, 1 this and the above subdivision, the authority of Hill (N. Y.), 501; PoweUw Tuttle,ii N.Y. iOl; the principal to delegate the powers of the may dele^'ate mechanical but not discretionary agency may be considered as implied: Laustlt powers: Suijre v. NichoU, 7 Cal. 535; Bodiiie v. Lppiiic'itt, 6 Serg. & R. 393. V. JiiN. Co. 51 N. Y. 117. Subd. 4: Story on Agency, sec. 14; Whartoa Sub3. 2; Story on Agency, sec. 14. on Agency, sec. 38. Subd. 3: See sec. 2319, subd. 1, ante. In 2350. Agent's unaulhorized employment of subagent. Sec. 2350. 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 con- nection with the latter. See sees. 2022, ante. gence, sec. 15G et seq.; Wharton on Agency, Story on Agency, sees. 15, 201, and note, sec. 482; but see Bank of Calif onila v. W. IT. 203, note, 217 a, 231 a; Wharton on Negli- Tel. Co., 52 Cal. 280. 2351. Subagent righlfulbj appointed represents princ pal. Sec 2351. A subagent, lawfully appointed, represents the principal in like manner with the original agent; and the original agent is not responsible to third ])ersons for the acts of the subagent. Ori^ia-il agent liable to prlacipal for Louisiana, 45 Am. Dec. 72, and note; ilitler negliscnce in choosing. When tlie agent v. Proctor. 20 Oliio St. 442; Darling v. Stan- lawiiilly a[)[ioint8 a subagent, he is liable to ivoo'l, 14 Allen, 504-. the i)rinciial in respect to the acts of such sub- Subagent cannot bs sued by orijinal agent only for c(///'rt in elifjcndo, ov for ncgli- aseut, when, liaviug been lawfully appointed, gent instructions, delivered to such ancillary ho causes loss by liis negligence, but must be agent: J/obbx v. Biiff, 43 Cal. 485; Watson v. sued by the principal: Merrill v. Wills, 50 CaL Mulrhead, 57 Pa. St. 247; Baldwin v. B'k of 108. ARTICLE VI. termination of agency. 2355. Termination of agency. Sec 2355. An ageucy is terminated, as to every person having notice thereof, by: 1. The expiration of its terra; 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 to act as such. Notice of termination of agency neces- Authority to bind his principal continnes Bary to third persons. — Payment of debt by until notice of revocation: Clafin v. Lenheim, third person to agent after termination of GGN. Y. 3'Jl; /'oVrtso/i v. C/ouf/, 47 Miss. 208; agent's authority, but before notice of the rev- B'anl v. Kirk, 1 1 N. H. 397; defendants dis- O'jation is received by such third party, re- charge purcliasing agent and advertise for bids leases him from liability to the principal: /»,?. for contracts; held, such advertisement not Co. V. McCain, 96 U. S. 84; Rice v. Barnard, sufficient notification: Fellows v. Hartford Js 127 Mass. 241; Braswill v. Am. Life In^. Co., N. Y. S. Co., 38 Conn. 197; and see, in general, 75 N. C. 8; Ulrich v. McCormlck, GO lud. 243; Barkley v, Rensselaer etc. R. Co., 71 N. Y. 205; Meyer v. ileyner, 96 111. 400. Hatch v. Coddington, 95 U. S. 48; Rict v. 399 2356 OBLIGATIONS. [Div. Ill, T'art IV, Jsham, 4 Abb. App. S7; Eadie v. Ai^hhnufjh, 44 Iowa, 519; Wrighl v. //errlrk, \-2S Mass. 249. Notice by tlie principal of the contents of a written agreement with his agent, termi- nating tiio agency, is gootl: Van Diiacii v. Star M. To., 3GCal. 571. Subd. 1. Accomplishment of object. — "Wiiere the object of the agency is accomplished in some other way bc-forc any act on t!ie part of the agent, tlie power of attorney is revokcl that, by the act of bankruptcy the conlldence of the principal in the agent is destroyed: Andenried v. Betteley, 8 Allen, 302; 2 Kent's Com., 4th ed., loct. 41, ])p. 044, ()45; but it seems that the agent, untler such cir- cumstances, is not debarred from doing many other acts: Story on Agency, sec. 480. Iiisaiiitj/. — "The case of the insanity of the agent would seem to constitute a natural, nay, a necessary, revocation of his autiiority;" Story on Agency, sec. 487. Decr<-e of Innacij is not extraterritonal'y binding: Wharton's Couil. L., sec. 122. 2353. Same. Sec. 2350. Unless the power of an figent is couplet! with an interest in th« subject of the agenc}', it is terminated, as to everj' person having notice thereof^ 1. Its revocation by the principal; 2. His death; or, 3. His incapacity to contract. Interest in subject of agency The in- terest must be distinct from any lien for com- pensation for executing tlie power to make it irrevocable. It must l)e in tlie t!ii;ig itself: Barr v. Hchroedcr, 32 Cal. 010; Ilnrtlei's A/>- jval, 5:5 Pa. St. 212; Walker v. JJeiinisoii, 80 1 1. 142; but see .\/erri/ v. L>/nc/i, 08 Jlc. 91. such legislation may seem to be," i. e., enact- ments such as the above, where the revocation does not take effect until notice thereof, "and however great the injustice produced in piitic- ular cases by the contrary doctrine, undoubt- edly tlie common law rule is that death revokes the agency, au I uulliiles all acts tliereaftcrper- The partnership of principal and agent will not formed." Similar statutes are found in Mary- make the authority of the agent a power coupled with an interest: Trarers v. Crane. 15 Cal. 12; Crt-ai/rr v. Link, 7 Md. 207. Nor will an interest in money derived from t!ie sale of tlie subject-matter of the power: Barr v. Schroedf-r, :i-2 Cal. 010. Ma// he Irrevoralde, though it is not a power coupled with an interest, as where it is given as security for the pa5-m('nt of money, or is made irrevocable: IJarr v. Srhrni'tlir, 32 Cal. 010; sec also Mariz'^n v. Pinrh'; 8 I I. r>22. and Mi-rrji V. Lynch. 03 Me. 91; an 1 soe n >te to Ca^.enny, 75 I'a. St. 321; l)Ut a mere change in n line, the same members remaining, does not: Bii'iinjsley v. Dawson, 27 Iowa, 210. P.irol. renorat.ion is valid in case of written instruneut not under seal: Sham v. Xiidd, 8 Pick. 9; Ihtforil v. P.nrr. 2 Johns. Ch. 410; or even when under seal: Brookshire v. Brook' 400 Title IX, Chap. II.] PARTICULAR AGENCIES. §§ 2.3G2, 23G3 shire, 47 Am, Dec. 341; see United S'ates v. 38 N. J. L. 536, the rule is thus positively Jarvis, Davies, 287; Henderson v. Ilydraidic laid down: "The after-occurring insanity of Worh-i, 9 Phil. 100. the princifial operates per se as a rcvocatiou Subd. 2. Validity of act of agents after or suspension of the agency, except in cases principal's death, and in the absence of statu- where a consideration lias previously been ad- tory provision as to notice as above, see note vanced in the transaction wliich was the sul)- to Cassiday v. McKenzie, 39 Am. Dec. 81. ject-matter of the agency, so that the power Before the code, the California decisions were became coupled wit!i an interest." But al- with the majority of American decisions in though the power is suspended during the holding acts performed in the principal's name insanity of the principal, still if, on liis re- after his death, with or without notice thereof, covcry, he manifests no will to terminate the void: Travers v. Crane, 15 Cal. 12; Ferris v. agency, the future acts of the agent will be Irvimj, 28 Id. G45. Indeed, it is only as to the binding, and assent to acts done during insan- validity of acts done in ignorance of the death, ity may be inferred by failure to express dis- which do not require to be done in the princi- sent when they come to his knowledge while pal's name, that there has been any contro- he is in his right mind: Biince v. Galkyihr, 5 versy: Kote Cassiday v. McKenzie, 39 Am. Blatchf. 431; Dai)is v. Lane, 10 N. II. 156. Dec. 85, SO; Story on Agency, sec. 495. See also Modey v. Head, 43 Vt. 633, where Subd. 3. Incapacity of principaL — In- being in an insane asylum for mania a potu sanity. — In MaUhiessen etc. Co. v. McJIahon, did not revoke the agency. CHAPTER II. PARTICULAR AGENCIES. Article I. ArcnoTTEEiis ,.,,.. ..._2362. JI. Factors 2307: III. Ship-masters ani> Pilots 2373. iV. Siups' Makagebs ,... ?3S^_, ARTICLE I. AUCTIONEERS. 2362. Auctioneer's authority from the seller. Sec. 23G2. An auctioneer, in tlie absence of special autborizatioa oi', usage to the contrary, has authority from the seller, only as follows: 1. To sell by public auction to the highest bidder; 2. To sell for cash only, except such articles as are usually sold' on credit at auction ; 3. To warrant, in like manner with other agents to sell^ according to Bectioa twenty-three hundred and twenty-three. 4. To prescribe reasonable rules and terms of sale; 5. To deliver the things sold, upon payment of the price; 6. To collect the price; and, 7. To do whatever else is necessary, or proper and usual, in the ordinary course of business, for effecting these purposes. Usage: See note, sec. 2297, ante, " Usage." for auctioneer's statements in conducting the Auctioneers. — Generally: See Story on sale, but oral statements of the auctioneer caa- Ageucy, sees. 27, 107, lOS; Wharton on Agency, not be received as modifying the written con- Bocs. 6oS-6.")5; anil a valuable article ii> 8 Am. ditions: Ires v. Trimit/i v. Fair- 2368. Actual authority of factor. Sec. 23G8. In addition to the authority of agents in general, a factor has actual authority from his princij^al, unless specially restricted: 1. To insure projierty 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, mortf^age, or -barter the same; and, 3. To delegate his authority to his partner or servant, but not to any person in an independent employment. Subd. 2. Sale on credit. — Where there is cases. Nor will the pledge be good in sneh a no usage to the conti'ary, and the factor sells on case, even for the amount of the factor's charges c«.-lit, nevertheless lie will be luld to a very at the time: Merrhanfs' Nat. Bank v. Tren- close examination of the credit of tlie parties fiolin, 12 Hcisk. 520; but see Hayes v. Camp- to whom he sells, and inattention in this respect bell, 55 Cal. 424. Invalidity of a factor's renders him liable for loss: Foster v. Wcl'.er, pledge is taken as conceded i a Z)o(Z.7c v. il/eyer, 75 III. 4GI; Bijrne v. Scliwinq, G B. Mon. 103; Gl Id. 405, 429; but see sec. 2091. post. In Jjai/H'jht Burner Co. v. Odli)), 51 N. H. 50; many states, however, "factors' acta" have Erite-^t v. StoUer, 5 Dill. 43S; Darant v. Fish, been enacted, enabling third persons to deal 4'^ Iowa, 559; fcee sef^. 2028, ante. with them as owners, when intrusted with Pied^s. — The rule in l^ngland and America goods or documents of title to goods for sale: is not ill consonance with the above subdivis- Jones on Pledges, sec. 333 et seq.; see sec. ios<, and uoto. • Solomon, 19 Cal. G4, overruling several earlier 2389. Oslensible authoriti/. Sec. 23G9. 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. Freight. — The factor may by shipping the Grcenr. Campbell, 52 Ccd. 5S0; Flaj/eftv. Camp- goods subject them to a lien fcr freight, bell, 55 Id. 421; Dodje v. Meyer, 61 Id. 405. although the owner afterwards replevies them: ARTICLE III. SHTP-MASTEKS AND PILOTS. 2373. Authority of ship-manter on belialf of ship-owner. Sec. 2373. The master of a ship is a general agent for its owner in all matters concerning the same. This article is chiefly confined to defining tlie authority of ship-masters. His duties will be found in sees. 2034-2044, ante. 2374. Authority to borrow. Seo. 2374. The master of a ship has authority to borrow money on the credit of its owner, if it is necessary to enable him to complete the voyage, and if 402 TiTLK IX, Chap. II.] PARTICULAR AGENCIES. §§ 2375-2378 neither tlie owner nor his proper agent for such matters can be consulted with- out injurious delay. 2375. Authority of ship-master. Sec. 2375, The master of a ship, during a voyage, is a general agent for each of the owuers of the cargo, and has authority to do whatever they might do for the preservation of their respective interests, but he cannot sell or hypothecate the cargo, except in the cases mentioned in this article. [Amendment, approved IlarcJi oO, 1874; Amendments 1873—4, 251; tuok effect July 1, 1874.] General average and jettison: See sees. 2148-2155; Ntlson v. Belmont, 21 N. Y. 3G. 2376. Power to make contracts. Sec 237G. The master of a ship may procure all its necessaiy repairs and supplies, may engage cargo and passengers for carriage, and, in a foreign port, may enter into a charter- jwrty; and his contracts for these purposes bind the owner to the full amount of the value of the ship and freightage. Authority at home port — The master of a authority of the owners: 7'Ae Fortitude, 3 Sumii. vessel 13 picsumcd, cvcu at a home port, to have 247; Uitilcd Inn. Co. v. Scott, 1 Jolms. 100; /.'o--.? authority to contract for shiji'-s stores, and the v. The Active, 2 Wash. 220; The Guy, 9 Wall, owner of the vessel is liable for the value of 57S; The Kalonnna, 10 Id. 204. the samu, unless he shows that tlie master had Conti"acts of aJrefghtmsnt. — If the owner Eot such power: Crawford v. lloherts, 50 Cal. charters to another the hold of his vessel, hut 6.'i5. appoints her master and sails her at his own Validity of lien for supplies. — The sup- exi)ense, he will be liable on contracts of plies must appear to be reasonable, or the money affreightiuent made by the master with ship- advanced for them to have been wanting, and pers who have no notice of the charter-party: there must be nothing to repel the ordinary Oakland C. M. Co. v. Jennbujn, 4G Cal. 175; presumption that the master acted under the and see Tomlinson v. Ilolt, 40 Cal. 310, 2377. Poioer of ship-master to hypothecate. Sec. 2;i77. The master of a ship may h^^oothecate the ship, freightage, and cargo, and sell part of the cargo in the cases prescribed by the chapters ou bottomry and respondentia, and in no others, except that the master may also sell the cargo or any part of it (short of the port of destination, if found to be of such perishable nature, or in such damaged condition, that if left on board or reshipped it would be entirely lost, or would seriously endanger the interests of its owners. [Amendment, approved March 30, 1874; ^menJ/neu/s 1873-4, 252; tool- rffcclJuly 1,1874.] See sec. 2320, ante, and note, and sec 3017 et seq., JW5<, and notes. 2373. Master's power to sell ship. Sec. 2378. When a ship, whether foreign or domestic, is seriously injured, or the voyage is otherwise broken up, beyond the possibility of pursuing it, the master, in case of necessity, may sell the ship without instructions from the owners, unless by the earliest use of ordinary means of communication he can inform the owuei's, and await their instructions. What degree of neoeasity required A condition and .idvising the sale, is essential, master may sell "when a eoasiilerate owner thoug'i not in itself conclusive: The llenrij, would liav ! done so under Ike eircuinstances:" li'atehf. &, II. Adm. 4tJ5, 400. 472; The T'tlton, 5 Iiobi.i.i. Co., 20 Am. Dec. precedent examination of the vessel by com- 507, and note; Scull v. Briddlc, 2 Wash. 150; pcteut surveyors, and their report, stating her The SaraJi Ann, 13 Pet. 3S7. 403 |§ 2379-2385 OBLIGATIONS. [Div. IH, Past IV» 2379. Master's power to sell cargo. Sec. 2379. The roaster of a ship may sell the cargo, if the voyage is broten up beyond the possibility of pursuing it, and no other ship can be obtained to carry it to its destination, and the sale is otherwise absolutely necessary. Must notify owner if possible, as in the 24; Post v. Jones, 19 How. 150; Dodqev. Union case of stranding; ami where he might easily Im. Co., 17 Mass. 478; Arthur v. The Cassius, have sought instructions from the owner by 2 Story, 81. telegraph or special message, but neglected to Tiie burden of proving necessity is on tbo do so, the sale would be an unlawful con- purchaser claiming title under the sale, in both veyance: Pi/:e v. Batch, HO Mc. 302; Bryant v. thisand thoabovesectloniyoyv. ^/^e»,2\V(>odb. Com. I>i.f. Co., 13 Pick. 544; The Joshua Birker, & M. 303; Oreeli/ v. Smith, 3'ld. 23U; The Forti- Abb. Adm. 219; Amon/v, McGregor, 15 Jolms. tade, 3 Sumu. 23G; compare /josi, sec. 2707. 2380. AidJiorilij to ransom ship. Sec. 2380. The master of a ship, in case of its capture, may engage to pay a ransom for it, in money or in part of the cargo, and his engagement will bind the ship, freightage, and cargo. Ransom as a general average.— The ran- Wells v. Oraij, 10 Mass. 42; Sansom v. B ill, 4 8om, paid in good faith for tiie benefit of all Dall. 459; Douglas v. Moodij, 9 Mass. 548; concerned, is a subject of general average: Maissonaire v. Keating, 2 Gall. 338. 2381. Abandonvienl terminates master's power. Sec 2381. The power of the master of a ship to bind its owner, or the owners of the cargo, ceases upon the abandonment of the ship and freightage to insurers. After abandonment, the master becomes Pierce v. Ocean Ins. Co., 29 Am. Dec. 507; and the a3ent of the underwriters by operation see Ward v. Peck, 13 How. 2G7; The Jlenn/, of law, and they are responsible for his acts: 2 Blatchf, & H. Adm. ioo; and so sec. 2726, Gen. Jnt. Ins. Co. v. liugjles, 12 Wheat. 408; post. 2332, Personal liability for contracts concerning the ship. Sec 2382. Unless otherwise expressly agreed, or unless the contracting parties give exclusive credit to the owner, the master of a ship is personally liable upon his contracts relative thereto, even when the owner is also liable. Whoever supplies a ship with neoes- rightfully in charge or not: The Lehi'jhw Knojc, saries has thus a tri[)le security — the master, 12 Mo. 508; see also James v. Blxby, 11 Mass. tlie owner, and the ship: Zncharie v. I\irk, 14 34, 30, 37. La. Ann. 433; Phitli/ts v. Tn/iper, 2 Pa. St. Personal liability of agent: See ante, sec. 323; and ho is not obliged to iiKpiire whether 2343. the person in charge as master or agent is 2383. Liahilily for acts of persons employed upon the ship. Sec 2383. The master of a ship is liable to third persons for the acts or negligence of j)ersons employed in its navigation, whether appointed by him or not, to the same extent as the owner of the ship. Pilot. — The master of a steandjoat was held owners for the willful torts and trespa'^ses of liable for ihc negligence of a i)ilot, by which a the persons employed by them, which act-) were collision occurred, although tlie pilot was ap- not ordered by them nor within the scope of pointed i)y the owner: l)>iiiison v. Seymour, d the employees' duties, sec Story on Agency, sec. Wend. 8, 15. 31S, and n )te, and sec. 4')3; and as to agency in As to the non-liability of masters or general, Wharton on Agency, sec. 479. 2384. RespnnsibiHty for negligence of pilot. Sec 2384. The owner or master of a ship is not responsible for the negli- gence of a pilot whom ho is bound by law to employ; but if he is allowed an ojition between pilots, some of whom are compsteut, or is required only to pay compensation to a pilot, whether ha employs him or not, he is so responsible to third persons. Sec sec. 2338, ante., and note, "Pilots." 2385. Obligaliona of sliip-oivaers to owwr of cargo. Sec 2385. The owner of a ship is bound to pay to the owner of her cargo the market value at the time of arrival of the ship at the port of her destination. 404 Title X, Chap. I.] PARTNERSHIP IX GEXERAL. §§ 23S8-2395 of that portion of ber cargo wliicli has been sold to enable the master to pay the necessarj' repairs and supplies of the ship. [New section, approved Jilarcli 30, 1874; Amendments 1873-4, 252; took eject Julij 1, 1874 ] Repairs, ■when not subject of general not the subject of general average: Ttoxsty.Tht average. — Repairs required fruni ordinary de- Aclirc, " _. . . cay, and furnished at an intermediate port, are Co., 1 Id. Wash. 400. JJurliii V. P/iceuix his. ARTICLE IV. ship's managers. 2383. What poivers manager has. Sec. 2388. A ship's manager has power to make contracts requisite for the performance of his duties as such; to enter into charter-par ues, or make con- tracts for carriage; and to settle for feightage and adjust averages. See sees. 2070-2072. 2389. What powers he has not. Sec. 2389. "Without sjoecial authority, a ship's manager cannot borrow money or give up the lien for freightage, or purchase a cargo, or bind the owners of the ship to an insurance. TITLE X. PARTNEESHIP. Chapter I. Partnership in General ^ 2305 II. General Partnership , 2424 III. Special Partnership 2477 IV. IMiNiNQ Partnership 2511 CHAPTER I. PARTNERSHIP IX GEXERAL. Article I. What Constitutes a Partnership 2.395 II. Partnkuship Property 2401 III. MuTi7AL Obligations of Partners 2410 IV. Renunciation OF Paktneusiixp , , 2417 ARTICLE I. WHAT constitutes A PARTNERSHIP. 2335. Partnership, what. Sec. 2395. Partnership is the association of two or more persons for the purpose of carrying on business together, and dividing its profits between them. D-v:d'ng th3 profits. — Partiei|j:itiitu in the tlirouj^h the ne'^^ligeuee of tiie owner permitted proiics (;f a Im-iiicss f'urni.-shos sLroiii^ prcsu np- to hoi I himself o;it as sneli, is not a iiartner, live eviilenee of a p irLnership in it. A share either as to tlie owner or as to third pers0. This question has fuinishcd the subject of much litigation, but the deci.siuiis concur in holding that a P'utj' who, without any interest in the jironerty, is by a;.;reeni.Mit to receive as compensation for liis services, and only as compensation therefor, » eertnin proportion of the profits, and is ('oiiviionircalth v. /i/'iiinit, 118 Mass. 44.S; Oood V. MrCartiii-i/, 10 Tex. 10.'!; Jii< htinlson v. Ihirilt, 7(> N. V. o.'): Snnkcy v. ('nluiiihii.i Iron Wor/:^, 41 (Ja. 2JS; I'oorAf.t v. Jovs, 29 N. J. L. 270; Mn.toii v. llach'U, 4 Nev. 420; A/hn-lon V. Ti/!oii, 4^ N. II. 4.12; ChrUlan v. Crorker, 25 Aik. ;-!27; UamHe v. Siuf", 41) Ala. 14; /Joi/re. liru'l /, 01 Ind. 4.12; J/oldfii v. Fn-iich, 63 ueitlier held out to the world as a partner, nor Me. 241 ; see note p. 20, Liud. ou Part., Am. ed.; 405 §1 239C-2403 OBLIGATIONS. [Div. in, Taet IV, L'^omu V. Mnr^hall, 30 Am. Deo. 500, and note; Brudfy V. Whiti', 4.3 Am. Deo. 4.3"); aa.l see M'cv/.ier V. Wu'/ner, 50 Cal. 76. The riglit to jointly share jirotits "as profits" mikes the par.'^ics liable as copartiiera: Cluimplon v. Bo--it- \rirk, 'M Am. Dec. .376, anil note; Denvy v. C'hW, G Met. 92: Story ou Part., sees. 3(>-38, anil see the following cases, where pai*tici[)atioQ iu the- profits has not constituted a partnership: U hff/f'r V. Farmt-r, 38 Cal. 203; Uobinxnn v. llaOr-', 40 Id. 474; Quackeiihiinh v. Sciict/pr, 54 Id. 439: and Bar/.er v. Cuza'U, 30 Id. 92, a union of services and interest in property. Sec section 2445, and note, where the above question as to divisiou of profits evidencing pirtncrship is settled. Voluntary associations for mutual relief in sickness or distress, by funis raised by in.tia- tioii fees, fines, dues, etc., are pai tnersiiip-s and may be dissolved by a court of eipilty if they improperly excluile a mem'ier: Gorman v. HUl-grx.i, 54 Id. 4G3; Clark v. Gr alley, 49 Id. 105. Abortive corporaticn. — A partnership or a joint-stock coini>aiiy is not nece.ssariiy the result of an aliortive attempt to oru'anize a cor- porarion: Blanrkarl v. Ka;ill, 44 Cal. 440. Partnsrship as to real property. — A part- nersliip may exist as to the purchase and sale of real property, but such a partnership can only exist w'lere the contract is reduced to writin.,': Gray v. Pa'm^r, 9 Cal. GIG. Interest in the capital — It is not neces- sary that the capital sliould be jointly owned: Vas-iar v. Cimp, 14 Barb. .341; Clinmpion v. Boftwick. 31 Am. Dec. 376; Dale v. Ilamilldn, 5 JTare, 393; Perry v. Bitt, 14 Oa. G99. Partnership must be proved like any other fact, aud ca;iuot be establis'ie I by gen- eral reputation: Undson v. Simon, G Cal. 4.".3; Turner v. ^f-Ilhatnj, 8 Id. 575; Sinclair v. Wood, 3 Id. 93. Books and receipts mav be A'«>.sr-//, 14 Cal. 531. See an article upon these aflmicted to prove partnership if t!iey aCtord associ;itiiins in 17 Cent. L. J. 342; see also Hiisehl <^n the Law of Fraternities, sees. .3—3. Community of interest in the proflt3 and losses constitutes a valid partnership: Smith V. Moynihau, 44 CaL 53; Harr'is v. any evidence thereof: Loae Star Co. v. Wist Pt. Co., 5 Id. 447; Hale v. Braiuian, 23 Id. 511. Dividing profits implies division of losses: Sec. 24L»4, post. 2396. Ship-oicners. Slc. 239G. Part owners of a ship do not, by simply using it in a joint enter- prise, become partners as to the ship. Partnership for the voyage and ven- venture: J/a-^/ v. Z»6 iro'/, 3 Woodb. & M. 193; tors — If part owners, not jiartuers, equip ;md Ilintoii v. Law, 10 Mo. 701; G irdii^r v Cl-re- fit out a vessel f.-r a common venture, they land, 9 Pick. 331; Buljinrh v. Winchenb'vk, 3 tlierjeby form a partnership for the voyage and Allen, 161; Philips v. LeAley, 1 Wash. 229. 2397. FuYmalinn of parlnfrnhip. Sec. 2397. A parcuersLip can be formed only by the consent of all the par- ties thereto, and therefore no new partner can be admitted into a partnership without the consent of eveiy existing member thereof. Consent necessary to a partnership.— No Mining partnership.— If one partner and part owner iu a miuing claim convey- Ids inter- est to a stranger, tiie latter becomes thereby a partner with the other owners, r.nd entitleil to all the rights of his grantor: 2^'isbely. 2^ash, 52 Cal. 540; also sec. 2516, post. one can be made a partner by inberiuince or ot'.ierwise against his will: Jan/uin v. B'iisjn, 11 How. Pr. 3S5; ilarqaandv. JS'. Y. ilj'j. Co., 17 .Jo'ms. 525; and see llarjitr v. Lampi/n/, 33 Cal. G41. ARTICLE II. P.VRTXEESHIP PROPERTT. 24C1. Partnership properfy, what. Sf-c. 2401. The property of a partner.ship consists of all that is contributed to the common stock at the formation of the partnership, and all that is subse- quently acquired thereby. 2402. PartiiPr'ii interest in partnership property. Sec. 2402. The interest of each member of a partnership extends to every portion of its property. Partnars are jomt tenants, in a qualified therein ;-er my et p-r tout: 2 Bla. Com. 182; Bens.-, /. e., witliouL the l>eiierit of survivorship. Story on Part., sec. 16; Lind. on Part. GGO. of t'lc partnership property, having an interest 2403. Partner's share in profits and losspsf. Sec. 2403. In the absence of any agreement on the subject, the shares of partners in the profit or loss of the business are equal, and the share of each in the partnership property is the value of his original contribution, increased or ftiminished by his share of profit or loss. 406 Title X, Chap, I.] PAETXEESHIP IN GENERAL. §§ 240i-2406 Equality of shares in proSt and loss. — The commissioiiers say that the point settled by the above section has been doubtful, "but the rule stated iu the text seems just: " See Shorb V. Beaiflrif, 5G Cal. 4."^0. The mere fact that partners have i)ut uner|ual amounts of capital into the common stock, or that one has put in all the capital and tlie others only their skill and iu lustry, will make uo difference in the rule: Gn.j'js'y. < lark, '2.3 Id. 4:27. MJiiiis partnerships. — Here each member shares in the proiit aud loss proportionably to the interest he liol Is: Sec. 2513, post. Unpaid advances and original capital — Where there is no agreement between the part- ner, they are to contribute equally to every loss, whether the loss be unpaid advances, sea Lind. on Part. SOO, or a loss of the original capita] broughtiu; and this is the rule, whether the partners conrrihuted to the capital in equal shares or not: Taj't v. Schwamh, SO 111. 259; Lind. on Part. 8J7; Molt-y Y.Br'ui", 120 Masa. 324; Jon-'S v. Bailer, 23 Hun, 3j7; see also Carlisle v. Tfuhrciok, bl Ind. 520; Saa-ri/ v. Tunr.iton, 4 Brad. App. 5o. But see this rule quaiiSed ia Fla/j-j y. .'itowe. So LI. 1G4: Ererly V. Durhorrm, 8 Phila. 93; Cameron v. Walsoa, 10 PLich. Eq. G4. 24C4. Wlicn dividon of losses implied. , Sec. 2401. An agreement to divide the pi'oflts of a business implies an a^ee- ment for a corresponding division of its losses, unless it is otherwise expres^ly^ stipulated. "This settles what has been heretofore a doubtful proposition:" Commissioners' note. 2405. Partner maxj require application of partnership property to payment of dfbts. Sec. 2405. Each member of a partnership may require its property to ba applied to the discharge of its debts, and has alien upon the shares of the other partners for this jjui-pose, and for the payment of the general balance, if any, due to him. Priority of partnership debts. — The debts of a partuvVsliip luusc be discliargcd from the joiiit pr. perty before any portion of it can be applied to the individual debts of the partners: C'/'/ct--e V. .S (-»-/, 9 Cal. 04; Burjife v. Baiin, 22 Id. 104; Jonex v. Par>>ons, 25 Id. 100; and a prior levy of execution by an individual cred- itor on the tinn property gives him no right of proiiercy against the lirm creditors who have not y.t obtamed judgment: Conroy v. Woods, 13 Id. G2j. partuershig of two or more firms. — In thi.i ca=e tlie creditors of one of the firms are en- tit'ed to a preference in tlie payment of their debts, over the cretlitoi-s of the wliole pai-tner- ship, out of the money, the proceeds of the property of tliat firm: Bullock v. IJ aboard, 23 Cal. 400. i urohaser of partner's interest — A mort- gagee cf .1, partner's individual interest in part- ne:oiii]) property hoPs subject to the linn ci-e:iitors' rights \o subject the property to the payment <'f tlie firm debts, and is the duty of the .sheriff to enforce this right: Sheey v. Graves, 2406. TI7irr^ property is partnership property by presximpiion. Sec. 240G. Property, •whether real or personal, acquired with partnership, funds, is presumed to be partnership property. 5S CaL 449. The same principle applies to purchasers at execution sriles. \Vhen tlie sher- lif sells under exeeut.on for an individual debt all the interest of ouj partner in the tirin, as he may, Clark v. Cm-ltinj, 52 Id. G17, the purchiiser under the execution becomes a tenant in coinmun with the other pariners, taking such interest subject to the lie::s of tha other partners: Bo'-i.u>o,i v. Tecis, S3 Cal. Oil; Gil more v. Xorth Arnericun Land Co., Pet 4G0; .Valter of Smith, IG Johns. 102, ICC, and the reporter's note; Al en v. WtlLi, 22 Pick. 450; J/a.'^kins v. Everett, 4 Sneed, 531^ Jleii ic]k v. Wh'.lio V, .52 N. Y. 1-18; iri'7a/7M V. (^«^c, 49 Miss.777; Lind. on Part. 690; Story on Part., sees. 2G2, 2G3, aud nutes. Posses-!ou by in!rr/,a.-ier. — And such purchaser has no riglit to the exclusive possession of the proiierty: ll'i\'7n''7}s, 41 Iow:i, 95: Shricooil v. St. Paul etr. /?. Co., 21 Minn. 127: Bird v. Morrison, 12 Wis. 13S; Fiir.hilil V. Fairchihl, 04 N. Y. 471; see also Liltli' V. S:ied<' or, 52A1.1. 1G7; Pretcn/ v. Mont- gomery, 28 Ark. 2.')G: Pall Waxr W'ltalin'i Co. v. Brr«s Ap, fill. GO Pa. St 122; but see Blark's Aj,;,e I, y.) Id. 201. Improvements on land owned by one part- ner, or by several partuera as tenants iu com- mon, made with partnership funds, are part- nei-shi[) property : Lane v. Tyler, 40 Me. 242i Kendill v. Rkfer, 35 Barb. 100; 1 Uncock v. Phtlf;s, 44 X. Y. 97; Deveny v. Mahoney, 3 N. J. E J. 247. Th3 surviving partner of a firm o\rnin§ real estate is more tlian a mere t-enant in com- mon with the representatives of the estate ol the deceased partner. He is trustee for the pur)>o?e of v.imlin^' up the atiairs of tlie firm: Smith V. Walker. 38 Cal. 3S5. In equity real estate is treated as mer* personalty, so far as the pa^nnent of partner- ship debts ami the adjustment of partnership 407 |§ 2410-2412 OBLIGATIOXS. [Div. Ill, Part IV, rights are concerned: Diipny v. Leavenworth, freed from equitable claims of others, upon n C:d. '2C>X grounds of policy: JJnjuii/ v. /.eafi-nicorlh, A bona fide purcli-'ser for a valuable con- )7Cal. 2()3; seeLind. ou I'art., Evvell's uotes, p. Bideratiou, witliout notice of tlie partnership Go'2, ou this subject generally, character of the property, will take the title ARTICLE III. MUTUAL OBLiaATlON OF PAllTNERS. 2-110. Parlners (rusfeeafor each other. Sec. 2410. The relations of partners are confidential. They are trastces for each other within the meaning of Chapter I. of the title on trusts, and their oblig-ations as such trustees are defined by that chapter, 2411. Good faith to he observed between them. S.'rc. 2411. In all proceedings connected with the formation, conduct, disso- lution, and liquidation of a partnership, every partner is bound to act in the highest good faith toward his copartners. He ma}' not obtain any advantage over them in the partnership affairs by the slightest misrepi'esentation, con- cealment, threat, or adverse i:)ressure of any kind. No advanta.!?e obtainable.— A partner is Whiteside v. Lnferty. 3 Humph. 150; Freeh v. bound to sliare with liis copartners any bcnetit which lie may have been able to obtain from other [icoi'jle, and in which the firm is iu honor and conscience entitled to participate: Warren V. Srhaniwaht, 62 Cal. 50; Todd\. h'afert>/,'Sd N. J. E(|. 254; Gray v. Portland Bank, 3 ^lass. 3G4; Lockwood v. Beclcwith, 6 Mich. 108; Anderson v. Whitlock, 2 Bush, 398; Lowry v. Coob, y La. Ann. 502; Eason v. Cherry, 6 Jones E(|. 201; Lane v. Carpenter, 3D Ind. 284; Coarsen^s Appeal, "iQ'^Ci. 8t. 220; Solomon V. So'omnn, 2 Ga. 18; American Bmik Xote Co. ". L\l.- himself. Such sale is simply void, and the legal anil equitable title remains ps it was before the attempted transfer: Coms'ock v. Bnchanin, 57 Barb. 127; Nelson v. Iluyner, 66 111. 4S7. Partner may purchase copartner's inter* est. A partner may p.u-chase liis copartner's interest in real estate when botii have an equal opportunity and means of knowing tlie value of tlie property ond its condition, and the pub- licity ot a sheriff's sale is prima facie evidence of al)sence of frauil: Bradbury v. Bams, 19 Cal. 120. Rsnewal of lease. — One partner having ob- taini.'il a renewal of the lease of tlie partnership nature and extent, refer only to the conduct of projierty will not be adowcd to treat this re- the business in which the firm is engaged. Oat- newed lease as his own: Mitchi'll v. Read, 01 Bide of such business there is no lestraiut upon Barb. 310; S. C Gl N. Y. 123; see also Afi/"- the right of either partner to traffic for his own fan v. Kuf/l>'e, 9 Cal. 602; Eakln v. Shainaker, profit: McKenzie v. Dirkinson, 43 Cal. 119; 12 Tex. 51; see sec. 240j, o/z^c. Kinn v. Whiton, 15 Wis. 084; Brown v. WBrlen, See generally: Liud. ou I'art. 500 et seq. 4 Nev. 195; Wheeler v. Saye, 1 Wall. 518; 2412. Mutual liability of partners to account. Sec. 2412. Each member of a partnership must account to it for everything that he receives on account thereof, and is entitled to reimbursement therefrom for everything that he j^i'operly expends for the benefit thereof, and to be indemnified thereby for all losses and risks which he necessarily incurs on its behalf. "Where the loss is attributable to the cul- pable negligence of a partner, and the act i)y wliich the los.s was occasioned was unaut'uiri::ed or forbidden, and not subsecjuently ratirienn>/h, 40 Ind. 133; Jldlerv. W ilUam->wii.z. 23 Avli. 500; Morrison v. Smith, 81 111. 221; Campbell v. Stewart, 34 Id. 151; Day v. Lock- uyod, 21 Conn. 185; Kariiii v, Donegan, 15 Kan. 4Jj. 408 Title X, Chap. IT.] GENERAL PARTNPIRSHTP. §§ 2413-2424 absence of a special agreement to that effect, rule applies: Tntt v. Land, 50 Ga. 3;i0; Jark- no m tn-Kt will he allowed uixiu capital ad- sou v. Johusoit, 11 Hiia, 509; Init sec Liiulley vaiiceil l)y any ])artiicr until after a ge!iei';il on Part. , sec. 7SS, and note; and note under eettleuieut (,r dissolution: June's v. Jukc-.s, 1 Iloblen v. Peac<>, 45 Am. Dec. 51S. Tliis ques- Irevl. E(|. 3.j2; iJenha v. Smith, 20 Ala. 750; tion must l>e solved by and must dei>ei)d upon Lcp v. Lo.rooke, 8 Dana, 214; Wajiinncr v. the cii-ciimstances of each case: (7y.';"r'.'* .4;);/ea^, Gran, 2 lieu. & M. 003; Gaend3 his time and labor in such in the prosecution of a cause whicb has tlij care and management of the partneiship been intrusted to bis finn, he is not entitled to property, liy wliicli its value is en'.ianced, he any part of the fees subse(|uently earned by his Ehoiiid receive compensation for the same, to pa"t;icrs in the cause: Denver v. Rijanc, 01) U. be deducted out of the profits arising from the 8. 355; and see also Marnh's Ap/iffU, GO Pa. St. e: h meed vain J of the property. B it hes'.iould 33; Lindley ou Part., 774, 775, anii notes. receive no coaipcnsation for merely winding up Swell's ed. ARTICLE IV. RENUNCIATION OF PARTNERSHIP. 2417. Ilenunciatio7i of future profils exonerates from liability. Sec. 2417. . A partner may exonerate himself from all future liability to a third person, on account of the partnership, b}' renouncing, in gootl faith, all participation in its future profits, and giving notice to such third person, and to his own copartners, that he has made such renunciation, and that, so far as may be i]i his power, he dissolves the jDartnership and does not intend to be liable on account thereof for the future. "The provisions of this and the following not be as regards general partnersliips: See Bection are iute'nded to enable a partner wlio Skiiiwr v. Datjton, 10 Johns. 513, 538:" Com- is unable to )irocure an immediate lUssolutiun mis ioni-rs' note. of the tirni to escape from future entangle- Dissolution of partnership: See sees. 244i) nient. They are certainly new in so far as et set^. they rel.ite to special partnerslii[is, but may 2413. Effect of renunciation. Sec. 24iS. After a partner has given notice of his renunciation of the part- nership, he cannot claim any of its subsequent profits, and his copartners may proceed to dissolve the partnership. CHAPTER II. GENERAL PARTNERSHIP. Article I. What is a General Partnership 2424 II. POWEIUS AND AlTHOUITY OF PARTNERS 2423 III. Mutual Obligations of Partners 2435 IV. Liability of Partners 2442 V. Termination of Partner.siiip 2449 \l. Liquidation 245S VII. Of tue Use of Fictitious Naaies ► «... 2-^0 ARTICLE I. what is a general partnebship. 2424. General partnen^hip , wJiaf. a&c 2424. Every partnership that is not formed in accordance with the laTy 409 §§ 2428-2430 OBLIGATIONS. [Div. Ill, Part IV, concerning r.pecial or mining partnerships, and every special partnership, so far only as the general partners are concerned, is a general partnership. Special partnerships: See sees. 2t77--510, ;>o.s<. Mining; partxiersliips: See sees. 2511-23:^0, ^^os/!. ARTICLE II. POWERS AND AUTHORITY OF PARTNERS. 2428. Power of majority of partner. Sec. 212S. Unless otherwise expressly stipulated, the decision of the major- ity of the members of a general partnership binds it in the conduct of its business. Minority must be consulted, and any tienfc partner: Lind. on Part. G90 et seq.; ^fto« other eouise ot pioceeding on the part of the v. Johnson, 32 N. II. 9; Liriii /■■iton v. L>/'h, 4 majority is not in goo:l taith: Lind. on Part. Johns. Cli. 573; Story on Part., sees. 12."], 125. (juO; SCO Chicaj J, B.dsQ. li. Co. v.lloijt, I Brad. Provisions as to povVGr.'j of majorities App. 371. in articles of incorporation ni'.i t he strictly fol- ^-hange in the business.— It is well settled lowed: Story on Part., sec. 213; Wnterhury v, the niajority can govern only in the dne course Express ('o., 50 Barb. 157; S. C, 3 Abb. Pr., ■of business, and cannot change the chai-acter N. S., 1G3. of the business against the will of one dissen- Miiiing partnerships: Sec. 2520, post. 2,4.23. Authority of individual partner. Sec. 2420. Every general jDartner is agent for the partnership in the trans- action of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing. No authority beyond soope of partner- 141; Pierce v. Jadson, 21 Id. C3C; Curri/ v. ship business.— One niember of a copartner- U7iUe, 51 Id. 530; Ilendrie v. JJerkowUz, 37 Id. .ship cannot be made liable for the act or under- 113. taking of another in a transaction not embraced Ratiiioation. — The mere fact that a partner, in their original partnership business, unless upon being informed that his copartner haa proof is adduced that lie knew of the transac- given a firm note for his iudivitlual debt, does tion, and assented to it, or subsequently ratiiied not deny his liability thereon, does not, per se, it: Goodman v. IVhiie, 25 Miss. 103; Ilotcldn amount in point of law to a ratilioation of the V. Kent, 8 i\Iich. 520; Vlaiffon v. Ilanly, 27 Mo. Reiihln, v. Cohen, 48 Cal. 545. 53G; WiUes v. March, 30 N. Y. 344; Lomj v. Cas^s of guaranty, proof of authority must Carter, 3 Ired. L. 238; Davis v. Blackwell, 5 be male: Story on Part., sec. 127. Brad. Aiip. 32; and see Rich v. Dans, G Cal. Conmionliability for losses: See see. 2412. 2430. What authority partner has not. Sec. 2430. A jjartner, as such, has not authority to do any of the following acts, unless his copartners have wholly abandoned the business to him, or are incapable of acting: 1. To make an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust for the benefit of a creditor or of all creditors; 2. To dispose of the good-will of the business; 3. To dispose of the whole of the partnership property at once, unless it consists entirely of merchandise; 4. To do any act which would make it impossible to carry on the ordinary business of the partnership; 5. To confess a judgment; 6. To submit a partnership claim to arbitration; 7. To do an}^ other act not within the scope of the preceding section. Subd. 1. As3i3nins partnership prop- letter of the absconding partner were held to erty. — That one partner, when his copartners give a;ithorii;y; and see Pa'iiwr v. Mi/i-rx, 43 are absent at a great distance, may as;!ga the Barb. 4j:); Dcrkard v. Oisc, 33 Am. Dcj. 28?. fn-m property: Farbi-s v. SraniieU, 13 Cal. 242; "As the code settles the law an 1 denies the Beruheim v. Porter, 3 West Coast Rep. 434; existe ice of the authority, it would not be In Welles v. March, 30 N. Y. 344, the acts and proatablo to examine at leug.h the cases in 410 TnxiX, CiiAF. II.] GEXSKAL PARTNERSniP. §§ 2431-2435 which the question has heen considered:" From coiniiiissinners' statement. Su'-d. 2. "A sale of ths good-will of t!ie business would j)rj\ent it from being eanicd ou, au 1 therefore it would seem clear that such a salj is beyond tho scope of a partner's author- ity:" From co:^iniiislo.icrs' Uiite. Su jd. 3. B?lQ by one partner.— That one of a partuershi,! ia cattle may sell all the catUo, see i'rlten V. Mdllr, .S West Coast Rep. (J 19. In tho followiai,' cases it has been held that in the absence c.f fraud, one partner mi.;ht sell tin; whole of the goods of t'.ie partnership: Ariiold V. BroiVJi, O.J A:n. Dec. ^.Oj; Mount jo i v. I I.A- den, \1 Id. S!;l; Dvckaril v. Case, 30 U. 237, and note; WiHirtnu v. Barnett, 10 Ka-.i. 4.3.); Ui/rsc'/cUler v. Kcy-o'r, 5'J Ala. ?>'^>S; Wiltiams v. Iiobcrts, G Coldw. -10?>; but see Kimhally. Ilnm- iltoitefc. Ins. Co., S 1j0sv\'. 405. But he cannot convey the realty of the firm by assi'nment or deed:"/;,/-,er V. MrConiirll, IT'IH. 217. Subd. 4. Prcveatins the carrying on of business: "Sec din:-cntii:g opinion of Deuio, J., in Mabhctt v. White, 12 N. Y. 442. Tiiis rule was (•:'.!phatii;ally asserted as to corpora- tions in Ahhott V. Anierhaii Hard Uahbcr I'o., 3o Barb. 578; and hasrjniteasmuch application to iavtnerfdii|is: " Commissioners' note. Su'cd. 5. Confe-tsins judgmout — -'The principles cf the common law which operate to disable a partner from binding his copartners 2431. rartner'a acts in bad faith, icltm iuf(f('ctual. Sec. 2431. A iiartner is not bound by any act of a copartner, in bad faith toward him, though within the scope of the partner's powers, except in favor of jiersons who have in good faith parted with value in reliance upim such act. Tho above section is founded on the fol- G40; McNeil v. First Conartnership matters to arbitration, l)ut that such submission would be good against the partner agreeing to it: Parsons on I'art., p. Uil:" Commissioners' note. Gubd. 7. "Want of authoriiy in general: See .sec. 2429, ante, and note. ought to suffer." Good faidi. duty to observe: See sec. 2411, ante, and note; Lind. on Part., pp. 392 et seq., and pp. 5G9ct seq.; sec. 2405, aide, and note. Partner acting in bad faith. — If one part- ner should make a negotiable instrument in the name of the lirm, and transfer it to a third per- son who knew that the proceeds were to be ap- plied to i^urposes fraudulent upon the firm, or not within the scope of their business, or for illegal ] urposcs, it would not be binding uiion the lirm: Story on Part., sec. 131; Birh v. Davis, GCal. Ill; S. C, 4 Id. 22; Btouji-tt v. IVeed, 110 Mass. 215; Wrhjht v. Brossean, 73 111. 331; Si''iiall V. Coney, 49 Misj. 701. But in tho hands of an innocent holder it would bind the lirm: llicli v. Davis, supra. The sale of parUicrsIiip pro] erty to a bona fide purclia.-er without notice is l^iniliiig, though the partner m.iy not have acted in good faith as to liis copartner: Crites v. MiUer, 3 West Coast lie|i. wdl be deemed to have acted 7na'a jide, and t! e transaction will be ticated as a nullity: E hill V. Cretn, 13 Bush, C12; Stni/h v. A itdrens, 49 111. 2S; llitliker v. Franris-o, G5 Mo. 59S; Cozlian.-,r, 07 Me. 499; Hart v. Clarhe, 5G Ala. 19; Todd V. Loroh, 75 Pa. St. 155; BiUimjK v. Mii'j^, 53 Barb. 272; Meridla.i Sat. B'lc v. Brandt, 51 Ind. 5G; Lewis v. ]Ve.-l, in equity, to account for all 107 Ma3>5. G4; Par.iell v. Robinxon, 58 Ua. "JG. profits lua ic thereby: /ferr^rtv. Ameu SB 'sw. E]nity«ill not djcree an aocountof fraud iileufc 115; Uro ra v. ShficLlfj'ortl, 53 M.>. 122; Po-n- JT^ins: ToilJ v. Jiiijferty, 3 Stew. 254; see sec. eroj/ v. Uritloii, ;'»7 Mo. 5^>I; Lort v. CariH-tU-r, 2438, po^d. 30 Ind. 284; J!rts v. UeUmtin, 25 Ohio St. ISO. 2437. In ichal he may engage. Szc. 2i3T. A partner may engage in any separate business, except as other- ■vrise provided by the lost two sections. "Wiiere thsre are no covsnants, a luon visions of the text: Caldic^llv. L'ther, 7 Paige, may eagge iu as many j^iartaersa ps as he 4>>, 494; Ship Po'onific, 2 Black. 581; Glass' pleases, provident he does not violate the pro- iinjlon v. Thwaites, 1 Sim. & St. 124. 2438. Must account tofirmf-tr pmfils. Sec. 243S. A general partner ix-ansacting business contrary to the provisions of this article may be required by any copartner to account to the partnership for the profits of such business. AETICLE IT. UABILITT OF PART^fZES. 2442. TAabUihj ofpariner.^ to third per.' note, it must !« made to appear tliat the GUllf*, 75 N. Y. 197; XcU. Baul: o/ Metro po'is parties signing the same executed it as part- v Spmrjue, 20 X. J. Eq. 13; Pllxk v. WHl- ners: Fr-^riiaJi v. C im]>htU, 55 II. 197. iam.*, 42 Miss. SS; see als.-) United States Baiik Escltisive credit given to ons partner. — v. Wmiei/, 5 Mason, 176; Lindley on Part. It is v.ell sertunl that \%here a debt is con- 301-3G;?. tractetl, or a contract entered in:artner. — 93; DaiJif v. Coom, 64 Inl. 545; Dodd v. TIjc f I ov.::i_' are s^r.ne of tlie late casc? il- Bishop, 30 La. An. 1178; W'alriUh v. Vilfy, last.raii\xofilji< familiar iloctrine: I'erLw Loc- 2 Bosh. 478; Thomas v. Green, .30 M'l. 1; rU, 41 CaL 521; lirn-jman v. McG>'ire, 32 Ark. McVlfrxon v. Satlianton, 3S Mich, 377; /•'i^tfn' 733; ('rirmlrh-u I v. GVerr, 55 Ga. 110; Paldmaa ho'ii^e v. Lei/h. 57 Miss. 097; DoiczfJot v. Raxo- T. Taylor, 75 Ld. 027; Peek v. LtuL, 38 Iowa, Vutj^, 58 3lo. 75; Gauta v. UoUm, 18 Kan. 500; 412 TiTLB X, Chap. IL] GEXERAL PAETJCEE5HIP. 82H5-2450 Dobmm r. Chamben, Bithop. 24 01] 90; S^yUs v. J/*yfr, 2445. Ao one liable as partner unless hdd out as such. Sec. 2445. Xo one is liable as a partner who is not nth provided in the last section. The diS sdty lies in proring that a paxtoer- tiup cxizts " 13 fact: " See sec '23S5. note, aafe,- 8tory on ParL, sec 49, note, and sees. 53-G2; lindSey on Parro6tB of a partnership bosinesB is liable to thinl per- Bons as a partner, vhether th^ were aware of the fact or not: Smiik v. WrigkJf. I ALh. Pr. 243: Tiifk T. IlrtO, 16 How. Pr. 175; K'oad r. Vai- Ui'e, 7 Ohio St. 172; Grace v. .T3£Hi?. 2^49. Duration of partnemiiip. Sec. 2449. K no term is prescribed by arrr^nrr.: . :r its duration, ^% grzerJ partnership continues until dissolved bj a ; 7 (Operation of law. DisBolatioa oi qpeci^l partjaeBtdpi See sec 2^.', j^-a:. 2450. Toial dissolution, ofpartner^p. Sic. 24-30. A general partnership is dissolved as to all the partnezs: 1. Br lapse of the time prescribed bj agreement for its doraiion; 2. By the expressed will of any partner, if there is no soch agreement; 3. By the death of a partner; 4. By the transfer to a per5 ::: . z..'. :. ^irtrrr. :: t^e Iz'izmt :f lz- -irtrer in the partnership property ; 0. By war, or the proL:' i: ::: :f ::n-r: - :- : — : _ - ~ in which one partner res: " : : _ -^ _ . . _ L r . : - .1 ^ , . . , C. By a judgment of d; - Dissolution cfpartnershtp. — £j _ i 1 27 " "-a-. Pr. lapse of tlis time ^>e=i&ed: Se : . ^ . X. J. Partuership, 39a. Where, after tiie ex- iratirn L.::. :r-: ." •« of the time tixed for the life of the firm, the xAToLk.^E . ^ 1 partnership stiil oontinnea, it vill be inesnraed Uofiici. Ch. C to oontianc on the same termszs before: Caiferf Stabd. 3. T ' j Slate* lloMtv. liimaey, 5 Mason, 1S3; Story on member of £ :. Part., sees. '27>. 279. nev mcmliK^. Subd. 2. Wm of f^rtnsr. — ^As an eiam- partDcrship v pie which the sabject-matter of the {ortnership is 5S6; J< destroyed, or the capacity of the partner to r. Erh. - gire hu personal attentium no hx^er exists, or Lav H: : that a court may bo ■■thnri^rd to decree a dis- OntL: ...! izd 413 1 2451, 2452 OBLIGATIONS. [Div. m, Part IV, partnership as^sets do not hecome confn<5e(l; "when a i>artnersliip is dissolved by the deatli of one of tlic pirtuers, its assets, debts, an 1 credits remain as distinct from those of its I'te members until its affairs are wound up as 1)l'- fore tlic dissohition:" Gleamnv. WhUe, 34 Cal. 258; ThrVer v. ;^}irh. 57 Id. 447. Miiiins part:i3rsli'p3 not dissolved by death of a i")artncr: Ta'jlnr v. Va4le, 42 Cal. 337. Subd. 4. Tra:i3f3r of interest: See sec. 2397, ante. Such sale dissolves tlie partnership, and the jinrch iscr cannot maintain an action to recover liis interest in the goods, but must sue for an accountiu':;, and will recover wliat- ever his assignor would have been entitled to upon a settlement of the partnership account's; and until the affairs of the partnership are thus wound up, the partner who did not sell is entitled to the possession of the property: Miller V. Bn'jh'iiv, 50 Cal. 615. Where one member by consent retires from the firm, this dissolution necessarily severs the copartnership relations of each of its mem- bers: /I'o.s.s v. Cornill, 45 Cal. 133; and see iMar- quand v. N. Y. Manufacturinf] Co., 17 Johns. 627; Edens v. William^ 30 111. 252; llortoi'x Appeal, 13 Pa. St. 07; Hor/ersv. iV/cAo;.s-,23Tex. 719. In these 1 ittcr cases it has been held that an assignment of the interest of one partner to his copartner ipno/acio works dissolution. S'lling to copartner: See last paragraph. Tiiat unless a comjdete withdrawal from the ])artner3hip is contemplated, and actually takes place, no dissolution follows from the transfer of a partner's interest to a copartner, t'le following authorities are cited: Monroe y. IfamiUon, GO Ala. 223; Matter v. Sh"pard, 3 B'n. 347; Pennock v. White, 10 N. Y. Week. Dl:^. 74; Ta/t v. Bafam, 14 Pick. 322. The amount which the purchasing partner j)aid his copartner cannot be taken into con- sideration in determining whether the sale in- cluded a settlement of the partncrrdiip ac- counts: Warden v. Bfarciis, 45 Cal. 594. Mortfjarfe by one partner of his interest does not work a dissolution perse: Slate y. Quid; 10 Iowa, 451; Dn Pont v. McLarni, Gl Mo. .502. Subd. 5. War — The authorities are col- lected and critically examined in Grinuold v, Wnddington, IG Johns. 438, 490; and see Ihib- hard V. Matthews, 54 N. Y. 43; (,'ramer v. United Stales, 7 Ct. of Claims, 302; Thr Julia, 8 Cranch, 194; Story on Part., sees. 315, 31G. Partner's power after dissolution of firm: See sees. 2458 et seq., ;30-/. Absence of a partner from the stato does not work a dissolution: Bernheim v. Pov ler, 3 West Coast Rep. 434. 2451. Partial dissolution. Sec. 2451. A general partnership may be dissolved, as to himself only, by the expressed will of any partner, notwithstanding his agreement for its contin- uance, subject however to liabilitj' to his copartners for any damage caused to them thereby, unless the circumstances are such as entitle him to a judgment of dissolution. See Story on Part., see. 275, who, together desire of a partner was not enoiudi to authorize with ether elementary writers, holds that no a dissolution of copartnership, but that cause such privilege is allowable; and in Bradley v. must be shown. lla/hness, 20 Cal. 09, it was held that the mere 2452. Partner entitled to dissolution. Sec. 2452, A general partner is entitled to a judgment of dissolution: 1. "When he, or another partner, becomes legally incapable of contracting; 2. When another partner fails to i:)erform his duties under the agreement of partnership, or is guilty of serious misconduct; or, 3. When the business of the partnership can be carried on only at a perma- nent loss. Subd. 1. Lunacy. — Lunacy does not of itself dissolve the firm, but the conilrmed lunacy of an active partner is sufficient to in- duce the court to decree a dissolution: Lind. on Part. 224; Orisioold v. Waddimjton, 15 Johns. 57; Cape Salle Co.'s Case, 3 Bland, G74; Story on Part., sees. 291-295; Anonymous, 2 Kay & J. 441. Subd. 2. FaHure to perform duties, or misconduct. — Apartnerdefraudedof hisriglit- ful portion of the partnership receipts by false entries, etc., of ills copartner, is entitled to a dissolution and accounting, no matter if the term has not expired: Cottle v. Leilch, 35 Cal. 434. Voluntary mutual relief associations are so far partnerships that a court of equity may dis- solve them if they improperly exclude a mom- ber frojn voting: Gorman v. Russell, 14 Cal. 531. TTahitiial drunJcennesn, great extravagance, unwarrantable negligence, bad character, in strong, clear cases, are grounds of dissolution: llowellv. Harvey, 5 Ark. 270; Ambler v. Whip- ple, 20 Wall, 540. Difficulties and dissejistons of such a serious nature as to render the continuance of the partnership impracticable and injurious to one or both of the members may be grounds for dis- solution: La/ond V. Difir.s, 52 How. Pr. 41; Blake v. Dorgan, 1 0. Greene, 537; but see Caxh v. Eariishaw, GG 111. 402. Subd. 3. A losing bu-jine.!?: Brienv. ITar- Timan, 1 Tenn. Ch. 4G7; Sel'/'iforurr v. Weisnen- born, 20 N. J. Eq. 172; )lolloday v. Elliott, 8 Or. 84; found to be visiionary: Lnfmd v. Deems, 52 How. Pr. 4 1 ; Seijkortuer v. Wtissen- born, supra ; Lind. on Part. 223. Insolvency without ntjppagc of payment or 414 TnxB X, Chap. H.] GENERAL PARTNERSHIP. §| 2453-2458 assignment doea not work dissolution; Si'^gelv. Decree of dissolTition may bs ordered, Chldsey, 2S Pa. St. 279; Arnold v. Brouoii, 24 although there is a prayer fur general relief: Pick. 89. Hall v. Lonkei/, 57 Cal. 80. 2453. Notice of termination. Sec. 2453. The liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of persons who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dissolution; and in favor of other jiersons until such dissolution has been advertised in a newspaper published in every county where the partnership, at the time of its dissolution, had a place of business, if a newspaper is there published, to the extent in either case to which such persons part with value in good faith, and in the belief that such partner is still a member of the firm. Notice as to customers. — Knowlege of 148. Mailing copy of newspaper with adver- any ciicunistaiices suliicieut to put a man on tisement marked is not snfiicieut: Haynea v, inquiry will ciiaige him with notice of such Carter, 1-2 Ilcislt. 7. facts as the prosecution of those inquiries Dissolution by operation of la"w. — It is would liave revealed: ZoVar v. Janvrlu, 47 perhaps well to notice the distinction generally N. n. 324; Smith v. Vandenlnirrjh, 4G 111. .34; observed in the books, which requires no no- Youiirj V. 'i'ibbi'ltn, .32 Wis. 79; as wlicn lie lias tice of tlie dissolution where it is cansed by notice of the time when the partnership is to death of a partner, or by bankiiiptcy, or by expire: Schlaler v. Winjoenny, 75 Pa. St. .321. war, on the ground tliat operations of law have But that a customer must have actual notice, a notoriety which all are bound to regard, and see Johnson v. 1'otten, 3 Cal. 343; WillicunH v. tliat it would be the acme of injustice to allow Boiccr-!, 15 Id. 321. the acts of the otiier partners to bind tlie Coinx'rs'itious with third persons may inform estates of persons wlio are incapable of acting the creditor: //oltgreve v. Wintker, 85 111. 472; themselves, or of continuing an autliority for Davis v. Kci/es, 38 N. Y. 94. that purpose. Whether tlie above section con- Newsynprr notice, if read, is sufficient to templates this distinction has never been judi* charge the (-ustomer: Young v. Tibbe/ts, 32 cially determinerc tlie ])i'0!icr ollioer, the commenced. It is not sullicient to tilo and iiistnuuent to l>e tlieirs: F(d)iaii ti- Co. v. 6'a//a- ublisli the certificate after liling tiio complaint ha)i, oJCd. 1.3',). Names of tlic partners ought ut before the trial: Bynrn v. Uoarrcl, 04 Cal. i.i bo in full: liycrx v. IJo'irret, 04 Id. 73. 73. AUecation by plaiuLiaS that thsy sue in Form of acknowledsment. — No par- their individual capacities. — When th© Civ. Code— 27 417 E S§ 2469-2478 OBLIGATIONS. [Div. Ill, Paet IV, plnintiffa aver in their camplaint that they are individual capacities, and that the allegation of partners, and oil the trial a partnersliip contract partnership was pure surplusage: il/ct'orci v. is proved, it is not a good answer to the objec- Seafe, 50 Cal. 202. liou that )ilaintiCrs have not complied with Torts.— Tlie above section does not apply to the provisions of section 24G0 above to claim actions for torts: Ralph v. Lochwood, 01 Cal. that tlie aotiou was brought by them in their 155. 2469. New certificate required on change of partners. Skc. 24G0. On every change in the menibors of a partnership transacting business in this state under a fictitious name, or a desij^nation which does not show the names of the persons interested as partners in its business, except in the cases mentioned in section twenty-four hundred and sixty-seven, a new certificate must be filed with the county clerk, and a new publication made, as required by this article on the formation of such partnership. [Amendment, approved March 30, 1874; Amendments 1873-4, 254; took effect July 1, 1874.] 2470. Register of firms to he kept by county clerk. Sec. 2470. Ever}' county clerk must keep a register of the names of firms and persons mentioned in the certificates filed with him, pursuant to this article, entering' in alphabetical order the name of every such partnership, and of each partner therein. [Amendment, approved March 30, 1874; Amendments 1873-4, 254; took effect July 1, 1874.] '2.411. Certified copies of register and proof of publication to be evidence. Sec. 2471. Copies of the entries of a county clerk, as herein directed, when • certified by him, and afiidavits of publication, as herein directed, made by the printer, publisher, or chief clerk of a newspaper, are presumptive evidence of ; Ihe facts therein stated. CHAPTER III. SPECIAL PARTNEPtSHIF. ^Article I. Formation of Partnership 2477 II. Powers, IIigiit.^, and Duties of the Partners 2489 III. Liability of Partners 2500 IV. Altkkation ani» Dissolution of the Partnership 2507 ARTICLE I. FORMATIOX OF PARTNEESHIP. 2477. Formation of special partnership. Sec. 2477. A special partnership may be formed by two or more persons, in the manner and with the effect prescribed iu this chapter, for the transaction of . any business except banking or insurance. Special partnership: "Stats. 1S70, 123, says Cliancellor Kent, 3 Kent's Com. 36, sec. 1. 'The purpose of the law in permitting 'tlie first instance iu the history of the legisla- 8uch a partnership,' says Mr. I'arsons, 'is ob- tion of that state in which tlie statute law of vious. It is to encourage and facilitate trade any other country than Oreat Britain has been and commerce, and induce capitalists to em- closely imitated and adoiited:'" Coinmission- bark their capital therein, or a certain part of ers' note. The example of New York has their capital, by relieving them from tlie peril been followeil in Maine, Massachusetts, Rhode ihangingover all partnerships by the common Island, Connecticut, Vermont, New Jersey, law merchant of losing not ojily all they have Pennsylvania, Maryland, Indiana, Michigan, 'in trade, bat all beside. On the continent of South Carolina, Georgia, Mississipfii, Alabama, Europe it has long been known and found to be Florida, Louisiana, Illinois, Virginia, Ken- useful and safe:' Parsons on Part. 545. More tucky, Delaware, Tennessee, Ohio, California, • than forty years ago it was permitted in New and perhaps other states. York by a statute copied substantially from Fraud in partnership matters a raisde- the French code of commerce. 'This being,' meanor: Pen. Code, 358. 2478. Of what to consist. Sec. 2478. A special partnership may consist of one or more persons called general partners, and one or more persons called special partners. 413 3473 (new). Appointment of Agent and Service of Sum- mons. Every copartnership, other than those inentioned in section 2467 of this code, domiciled without this state, and having no regular place of business within this state, must, within forty days from the time it commences to do busi- ness therein, file in the office of the secretary of state a designation of some person residing within the state upon whom process issued by authority of or under any law of this state, may be served. A copy of sucli designation, duly certified by the secretary of state, is sufficient evidence of such appointment. Such process may be served on the person so designated, or, in the event that no such person is designated, then on the secretary of state, and the ser- vice is a valid service on such copartnership. (In effect 60 days from and after April 22, 1909. Statsf. 1909, Chap. 696.) Civ. Code, 1909. Title X, Chap. III.] SPECIAL PARTNERSHIP. §§ 2479-24S2 2479. Certified statement. Sec. 2479. Persous desirous of forming a special partnership must severally Bign a certificate, stating: 1. The name under wliicli the partnership is to be conducted; 2. The general nature of the business intended to be transacted; 3. The names of all the partners and their residences, specifying which are general and which are special partners; 4. The amount of capital which each special partner has contributed to the common stock; 5. The periods at which such partnership will begin and end. "It woulil seem tliat the principles govern- or as some of tlie cases say substantially, com- ing the fuiniation of corporatidDS woukl, to a plied with: llairland v. Chase, 39 Barh. 28!-i; great extent, apply, by iiualogy, to the forma- IloUiday v. Union B. ting with, ami is not to be postponed to, tlie Cluxse, 13 Uratt. GS3. claims of other creditors of said limiccd part- 420 Title X. Chap. III.] SPECIAL PARTNERSHIP. 5§ 2492-2501 52492. General partners may i^ue and be sued. Sec. 2-492. In all matters relatiug to a special partnership, its general partners may sue and be sued alone, in the same manner as if there were no special partners. Suits against special yartnersliips.—" But taille, G La. An. 6S2; Parsons on Partnersliip, if the special iiaitners have become general 55:^:" Commissioners' note, partners by some non-compliance with the re- Tiiis limitations extomls only to actions re- quirements of 'iw, they may be joined; and if specting the business of tiie partnership, and the planitiff seeks to hold them beyond tlieir does not include actions inter ."■esr, or against limitutl lialiility, he must join them: Arffami' tiiird persons brought to enforce individual Jiavk V. TreadwcU, ?A Barb. oGO; Scku/leii rights growing out of the partnership: Spald- V. Lord, 4 E. D. Smith, 20G; Baitaille v. Bat- imj v. Black, 22 Kan. 55. 2493. Withdrawal of capital. Sec. 2i93. No special partner, under any pretense, may withdraw any part of the capital invested by him in the partnership, during its continuance. If a special partner witlidrawsliis capital 1 La. Ann. 120; Dalliey v. J/nr/.w, 15 Abb. Pr. in part, upon the subseipient insolvency uf the 454; see also Berrg v. Hfijnold-^, 12 Barb. 288; firm he is liable to the creditors for such S. C, 11 N. Y. 97; /-a C/true v. J/arii, 4 E. D. amount and interest: La Ch'nnelte v. Thomas, Smith, GIO; but see sec. 2495, post. 2494. Interest and profits. Sec. 2494. A special partner may receive such lawful interest and such pro- portion of profits as may be agreed upon, if not paid out of the capital invested in the partnership by him, or by some other special partner, and is not bound to refuml the same to meet subsequent losses. Dividends paid out of ths capital. — The effect only to require bim to restore, in case the receipt, lcr.sou«.- Jo7iea- Uoirell, 42 Cal. 036. v. Clark, 42 Cal. 481 ; Taylor v. CcUle, Id. 369; : No partnership articles. — In this case rain- and see Duryea v. Burt, 28 Id. 509. 423 §3 2513-2:.19 OBLIGATIONS. [Div. Ill, Tart IV, 2513. Profits and Idshcs, Jiow shared. Stc. 2513. A member of a miuiug partnership shares in the profits and losses thereof in the proportion which the interest or share he owns in the mine bears to the whole partnership capital or whole number of shares. Sliaring proSts and losses equally t.-iuls ship: De'-kcr v. l/oivll, 42 Cal. G30; see Dur- to i)i'{>\ e liiu exist. 'lice of nil ordinary paruicr- t/f.a v. Hurt, 26 Id. oUt). Bhi[i, as di^itiuyuisiied from a miuiug partuer- 2514. Lien of partners. 'oi.c. 2514. Each member of a mining- partnership has a lien on the partner- ship property for the debts due the creditors thereof, and for money advanced by him for its use. This lien exists, notwithcitandiug there is au agreement amouy the partners that it must not. Corresponding sections as to general partnars: See sees. 2405, 2412, ante.; see also sees. 2ol7, -oiS, pObt. 2515. Mine, partnership propertij. Sec. 2515. The mining ground owned and worked by partners in mining, whether purchased with partnership funds or not, is partnership property. rvCiiios brought into the coaoeni by iudi- ment of the partiiersliip afT.iirs, to bo treated vidual members as a portion of the ca;)ital as pariiiersliip property: JJarjca v. Burt, 28 Ktock are iu ciiuity, for the purpose of a settle- CaL JoO. 2513. Partnership not dissolved by sate of interest. Sec. 251G. One of the partners in a mining partnership may convey liis interest iu the mine and business without dissolving the partnership. Tlie purchaser, from the date of his purchase, becomes a member of the partner- ship. Sale of partnership interest does not dis- No dissolution results from th3 denth of solve ininiug partnership: Taylor v. Cii-^t!c, 42 a partner: Jones v. dark, 42 Cixl. ISl; sec note, Cal. 3{M); JJitn/fu v. Burt, 26 id. oGD; SkUhncm sec. 2511, (uite. V. Larhuiaii, 23 Id. 19S. See principle in the above section declare.l in Terminatioaof partnership generally: See KU'uiiaa v. Larhman. 23 Cal. I'JS; Duriji'a v. sees. 214'J et seq. Burt, 28 Id. oGd; Ukh v. JJains, Id. l(i;J. 2517. Purchaser takes subject to liens, ttnless, etc. Sec. 2517. A purchaser of an interest in the mining ground of a mining partnership takes it subject to the liens existing in favor of the partnei's for debts due all creditors thereof, or advances made for the benefit of the partner- ship, unless he purchased iu good faith, for a valuable consideration, without notice of such lien. 2518. Takes with notice of lien, when. Sec. 2518. A purchaser of the interest of a partner in a mine when the partnership is engaged in working it takes the notice of all liens resulting from the relation of the partners to each other and to the creditors of tlie partnership. Nevr partners liable for old debts: Jones v. Clark, 42 Cj.1. 181. 2519. Contract in lorilinrj, lohen binding. Sec 2519. No member of a mining partnership or other agent or manager thereof can, by a contract in writing, bind the partnership, except by express authority derived from the members thereof. Strict partnership. — When partners in the mininr^ partnership, excent upon sncli contracts miniii;^ business enter int > a;i agreement of as are u.sual an 1 necessary in tlie oriliuary btrict or ordinary partnership, one may hind prosecution of the worl;, nn^.esss spocially au- |!ie other liy a promissory note: Decker v. tiiorized: Jones v. Clark, 42 Cal. I SI, and see lloici-ll, 42 Cal. G3l3. Tai/'or v. Ca>itlf, 42 Id. 3G3; SkiUniua v. Lcich- Managing superintendent cannot bind a juaa, 23 Id. 198. 424 Title XI, Ciiap. I.] INSURANCE IX GENERAL. §1 2520-2532 2520. Owners of majority of sharrs fjovrrn. Sec. 2320. The decision of the meuibcrs owning'' a majority of the shares or interests in a mining partner.shii) bindn it in the conduct of its business. Majority of members iu geueral i;artuoislilps: Sue. 2428, ante, and uote. TITLE XL INSURANCE. Chapter I. Insurance in General 2527 II. Marine Insurance 2Go5 III. FiKE Insurance 2752 IV. Life and Health Insurance 27G2 CHAPTER I. INSURANCE IN GENERAL. Aeticle I. Df.ftnition of Insprance 2527 II. "What may be In.suked 0,331 III. Pakties 2o38 IV. Insikable Interest 2.346 V. Concealment and Representation 2561 VI. The Policy 2586 VII. Warranties 2G03 VIII. Prejiiums 2616 IX. Loss 2626 X. N< )TicE OF Loss 2G."};J XI. DtX'BLE Insurance 2641 XII. Reinsurance • 2646 ARTICLE I. definition of insurance. 2527. Tn^uraiice, what. Si:c. 2527. Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability, arising from an unknown or contin- gent event. Iiisurauoe defined. — The above definition. Insurance commissioner, office and duty emhruciiig all the classes of iasui-iuico iiioii- of: PmI. Cude. sees. 504 ct si q. tioned, plainly iiKiUes insurance on life, as well Destruotiou of insured property: Pen. as other kinds H/j!dd F. . v. ^I//e//,43N. Y. 3SD; l'o.sf>-r v. Van LWil, 70 Li. 20. Subrogation generally. — As a general rule, it has Ijc.en laid down in numerous cases that policy subject to the defenses whicii cati be after payment of a loss the insurer is entitled made agaiuct tlie mortgagor for breach of the conditions of tiie contract: Fru/iLUii Savings ///s. V. Central /jis. Co., Ill) iMass. 240; Fo;/:/ v. Mii!(l!e.sex /«-s. Co., 10 Cush. 337; Grofvenor v. Atlani.c Ins. Co., 17 N'. Y. 3Li2; Bufihlo S. E. Works V. Sun M. Ins. Co., 17 Id. 401; SjjriiK/- Jidd F. i v. Builders' Ins. Co., 3S Cal. 514; < 'one v. Xvujara F. Ins. Co., CO N. Y. 019; Frink V. Ilamixlcn, 31 How. Pr. 30; see also, for discussi.ju of this question, 8 las. L. J, 122, ill note. Subrogation to mortgagee's rights. — That the insuier w lio pays a loss to the insuring mortgagee is not entitled to be subrogated to bis rights as agabist the mortgagor in the ab- sence of a stipulation therefor, .'?ee Dirk v. Frunllin F. Ji:s. Co., 10 lus. L. J. 4CS; A' F. 1 118. Co., IJ liiwa, 2S1; Sloid v. ('ifi/ F. Lis. Co., \-2 L\. 371; Loii'/hnr.d v. Star fnx. (Jo., 19 Id. 3(J4; //'.S-. Co. V. sthison, 103 U. .S. 2.). Vendor and vendes. — One in possession of a builiiing iu!(lcr a valid subsisting contr.ict of puruliase is tiie etjuitable owner, and h is an insurable interest, although he has not piiil t'le whole consideration money: I'anwyw I'lvriiix: Ins. Co., 1 Fed. Rep. 39(3; Smith \\ Bow.lUch Jnx. f'o., (i Cnsh. 44S; T acker nvniv, ILnne Ins. Co., 9 1!. I. 414; Franklin Lis. Co. v. Martin, 49 N. J. L. 5(jS; Southern Lis. Co. v. Lewis, 42 Ga. 587; Iiuins^y v. Pluenix Lis. Co., 17 Blatchf. 527. The validitj' of the contract under which th.e insured holils cannot 1)0 ques- tioned by the insurers. It is sufficient that the plrtintilF accjuire title to the sjjecifie pro[ierty insured, whicli was not defeated at the time of the iusurauce: Little v. Phunnix Jus. Co., 123 Mass. 3S4. The same principles apply to per- sonalty: lloVirook V. St. Paid F. etc. Ins. Co., 8 Ins. L. J. 789. Lessor and lessee have each an interest in the ilemised premises wliich may lie protected by insurance: Ely v. Ebf, 80 III. r)32; Sil>!o v. N. A. /'. Lis. Co., I Sandf. 5.32: //o/>'' Mat. Lis. Co. V. B->,laski, 35 Pa. St. 2S2; Mib-hM v. Home Lis. Co., 32 Iowa, 421; Lis. Co. v. Haven, 95 U. S. 242. Trustees may insure the trust property: Insiiranre Co. v. Cha.-ra; l>"(jeforehand, or subse- quently adopts it:" 1 Phillips on Ins., sec. 383. When there is no previous authorization, the iuteutiou of the parties to the contract and whom it was effected determine its validity and the right of the latter to recover on it: Duck \. Chesapeake Ins. Co., 1 Pet. 151; Ban- ilerji V. Union Ins. Co. , 2 Wash. 39 1 ; iJe BoJle V. Penn. Ins. Co., 4 U'hart. 68. Where there is a prior authority, the intention of the party giving this authority determ'nes whose interests are concerned: Holmes v. United Ins. Co., 2 Johns. Cas. 329. These clauses, ' ' for whom it may concern." 435 'U 2593-2597 OBLIGATIONS. [Div. m, Part IV, and thelike, applyonlyinfavorof thoscwho were contemplated at the time the insurance was made, and who then had an insurable interest in the subject-matter: 1 Parsonson Mar. Ins. 4G. It is not necessary that the aijent should know Avho the parties concerned are. If he intent universally, require that the risk shall be d«clareJ or reported to the uader- 436 Title XI, Ciiap. I.] INSURANCE IX GENERAL. §§ 259S-2605 writer as soon as known to tlie assured." Tiie reason of this requirement was statC'l, in Carver Co. v. Maiiuf. Ins. Co., 6 Gray, "214, to be: "To itlentify the property insured; to know what was at ri-k, that they miglit protcet it; to aseeitain when tiie policy was exhausted; anil u.s evidence of the sums at risk and pre- mium earned." That policies of this nature may fasten upon the insurers a responsiliility for a loss known befoi-e indorsement on the policy of the value of the suhject-matter is demanded, see IF. /''. avk V. [lis. Co., 05 U. S. 073. It is the general rule of constructiun, recognized in this decision, that warranties are to be con- strued most strongly against the insurer: See SiniUi V. Mechanics' F. I. Co., 32 N. V. 300; lli,ll,ie V. Guardian M. L. Ins., 53 Id. G03; McCidloch V. Norwood. 58 Id. 502; Dillehi-r v. Home Ins. Co., CO Id. 250; Aurora F. I. Co. v. Eddi/, 55 111. 213; KvereU v. Continental Lis. Co., 21 Minn. 70; U. S. Ins. Co. v. Kinibirh/, 31 i\Id. 224; Wilson v. Hampden Ins. Co., 4 II. I. 157. 2605. Warranty must be in policy. Sec 2G05. Every express warranty, made at or before the execution of a pol- icy, must be contained in the polic} itself, or in another instrument signed by the insured, and referred to in the policy, as making a part of it. [Amend- viriil, appruced March 30, 1874; Ameiidmenl,^ 1873-4, 255; look ejfeci July 1, 1874. ] of a policy must bo contained in the policy it- self, and another iustrument, whetlierupoii tlie same ))a|i(!r or not, cannot be referred to as making a i)art cf the policy for this purpose, i)rcbs warranty made at^or before the execution even by agreement of the parties." la propoa- 437 "Warranty contained in otlior iastru- merjc.'S. — 'i'lie above section matei'ially departs fruii) iiiat originally framed by the ode comniis- Bionerw. In their draught it read: " Every ex- ^§ 2606-2609 OBLIGATIONS. [Div. Ill, Part IV, iiig the above amoiiflmpnt, the code examiners ■explained: '"Tlie amcmlment restores the law IS it existed previous to the code: See Parsons m MuriLimo Law, 106, ami Phillips on Ins., Bee. 7">0. The law as it now stands works great hardship on insurers, without any cor- les[)onilint; l>enetit to any one. Insurers against lire are in tlie habit of talcing risks from a dis- tance, relying entirely on the written represen- tations oif the insured. These are generally made on printed bhinks furnished by the in- Burers, and sometimes cover two or three pages of tlescriptii'U, with diagrams showing ex- posures, construction, occupation, and otlier ele- ments of risk, according to which the premium id graduated. Ail this cannot, without great inconvenience, 1)6 coined into the policy, yet un- less this is done, the present section deprives the insurer of the right to prove tlie conditions on which he was induced to fix the premium and is- Kue the policy. So with marine risks; they are constantly taken on vessels not known to the insurer persimally, or described in his registers of shipping." The section as it now reads is in iiarniony with the rule that a warranty may be contained in another instrument than the policy when expressly referred to in the policy as form- ing a part thereof: Le Roy v. Market F. Ins. Co., ;WN. Y. 90. Application for insurance is part of the contract when expressly maile so, ami under those circumstances nmst bo set out in an ac- tion on the pohcy for a loss: Gihnore v. Lif- comhij Fire Jus. Co., 55 Cal. P2,3. But the terms of a mere verbal application need not be al- leged: Tis'-JilTW. Calif oriiki Fanners' M lit. Ins. Co. , 4 West Coast Rep. 5<)5. For a discussion of what statements in the application are warranties ami what mere mat- ters of description, see a note to Fowler v. JEtna Fire las. Co., 16 Am. Dec. 462. Where the policy refers to the ai)plicatiou and makes it part of the policy, any Ijreach of tlie conditions or representations made warranties by the terms of the a[)plication avoids the policy: lhhpn>i v. ^Etna Iii^. Co., 5S Cal. S.'i. R-apresentations a3 distinj^ulshed from "warrantias: See the note to Fowler v. yElnti Ins. Co., 16 Am. Dec. 462, above referred to; and sees. 2571, ante, et seq. 2G06. rions illustrative of the dis- tinctiiin above suggested, see the note to Fowler V. J::tna F. Ins. Co., 16 Am. Doc. 46^ 460. 2608. Wnrranfi/ a.'^ to tlie future. Sdc. 2G0S. A statement in a policj', which imports that it is intended to do or nut to do a thing which materially affects the risk, is a warranty that such act or omission shall take place. etc., wliich are making; shall not run nights over four months." It was held that this amounted to a warranty that the factory .should stop running at nights when the cards then making were linished, and in no event linger than for four months. So also in It'ipleii v. jEt.n.a Inr,. Co., .3J N. Y. i;]G, and in dteiilalc Woolen Co. V. Pro'ertion Ins. Co., 21 Conn. 19, the sta'^enent, "there is a watchman nights," was lield a warranty for the future. See, further, Wood on Fire Ins., sec. 165 et eetj.; note in 10 Am. Dec. 470. Promissory warranties. — For a comment upon the [leculiar pliraseology of this section, pee Barber on Ins. 87. And see also JMr. Duer's remarks, 2 Ins. 707, upon the eli'ect of the insured's declaration of ids intention. The commissioners refer to Bllbronij/i v. Heiropoli- tnn /.vs. Co., 5 Ducr. 587, an I from the princi- ple of that case the above section was probably drawn. There, in answer to the inri 'ach w ilJio u t fraud. Sec. 2G12. A breach of warranty, without fraud, mei'ely exonerates an insurer from the time that it occurs, or where it is broken in its inception, prevents tha policy from attaching to the risk. Breach of warranty v^^ithout fraud. — If the Marrauty was i)roIien at its iacep ion with- out any frautl on the part of the insured, lie is entitled to a return of the premium: See sec. 2610, ],nst. V/aiver of forfsiture.— That the insured may waiv-e a l)rea'jh of tlie conditions of a pol- icy, and this wifc!iout any further agreement therefor, see TUhh v. (Hea FalU In.-:. Co., 81 N. Y. 410, containing a concise summary of tho law of New York state. ARTICLE YIII. 2616. When premium ift earned. Sec. 2G1(j. An insurer is entitled to payment of the premium as soon as the thing- insured is exposed to the peril insured agaiu.st. Commencement of risk.— For construc- tions of the words " at and from " in a ]iolicy of marini! insurance, frce Patrick v. Ludloii\ 2 Am. Dec. \?,{^•, (larr'njnes v. Coxe, Id. 433; Tay'or v. Loivrll, ."> id. 14!; D''hlniii v. Orenu /«.-). Co., 28 Id. 24',; Mar/iav. Fi-^hiu;/ Iii>i. Co,, 3- Id. 2"20. ^Vllen vessel deemed to be at sea: iroor^ V. X. E. Ills. Co., 7 LI. IS-2; IJowpu v. JIo}>e fiis. Co., ^2 id. 2i:>. A polic}' which is to talvc! effect from the happening of a paniou- lar c\ent, contemph.tcd by the policy to be at a future time, but wliicli has already happened. still will hold the insurers: Cobh v. N. E. M. M. Ills. Co., C> Uray, 102; and compare Mauly V. United Murine etc. Co., G Am. Dec. 40. In- surance on bullion and treasure to be la.len at certain named poi'ts includes treasure di'livercd by passenger at s^■a: \V. F. tt Co. v. Pacific Lis. Co.,44Cal. ;yJ7. Receipt iu policy, liow far conclusive of p^.ymcnt: See sec. 2",08, ante. in-jtallniont paymaut of premiums in life jiolicies under peculiar terms thereof ; See i/ow- ard V. Cont. L. Ins. Co., 48 Cal. 221). 2617. Fit turn of premium. Sec. 2017. A person insured is entitled to a return of premium paid aa 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, and the insured surrenders his jwlicy, to such proportion 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. [AineiHhnent^, approved March 30, 1874; Amendments 1873-4, 25G; took effect July 1, 1874.] 439 §§ 2618-2622 OBLIGATION'S. [Div. Ill, Part IV, Return of premium. — This section as origi- law elsewhere, and is manifestly unjust. Un- nally a loptud read: "A jierson insured is en- der it the insured, meeting with .a luss in the titled to a return of premium paid, or a rata- first moiitli of a policy for a year, con'd recover Lie proportion thereof, if no pait of ids interest not only the loss, but eleven twe'f^hs of the in tl'e tiling isisured is exi)i)seil to any of the premium, thus depriving the insurer of tiiat perils insiu'od against; or where the iasurance pro|)ortion of the consideration for wliioli he is mae pos'^ sec. 2o42, and note. suggested to the commission rs by t!ie doubt Roturn of premium. — The necessity for expressed iu 2 Parsons on Maritime Law, 191, «omc delinite rules upon this subject where 192. tliere is an over-insurance, such as are embodied 2622. Proportionate contribution. Sec 2G22. When an over-insurance is effected by successive policies, those only contribute to a return of the premium who are exonerated by prior insur- ances from the liability assumed by them, and iu proportion as the sum for which the premium was paid exceeds the amount for which, on account of prior insurance, they could be made liable. 440 TlTLir. XI, ClIAP. I.] iN^uiiAXc:^ IN gi:nepu1L- g§ -202(5-2028 ARTICLE IX. LOSS. 2.G2.G. Perils, remote and proximate. Sec. 2G2G. An insurer is liable for a loss of which a peril insm*ed a.'T'aiust wag (he proximate cause; althou^-h a peril not contemplated by the contract may have been a remote cause of the loss; but he is not liable for a lofis of which the peril insured against was onlj' a remote cause. Negligeuoe of insured: See sec. 2029, infra, ford Ins. Co., 13 111, GIG; Brculij v. N. W. Ins. and note. Perils of the sea, what inclnderl in this expr-cssioii: See the note to sec. 2G5.j; see an enumeratiiin of what are the sources of " per- ils at sea," in the case of common carriers, sec. 2199, nnle. Perils, remote and prosimate. — The rule is general and applicable to all kinds of insur- ance, that for lossbs arising directly and imme- diately from perils insured against the insurer is lialjle, wliilo as to losses to whicli such a peril (inly remotely contributed the insurer is not rospnnsiblc: Brady v. North-uyslcrn /ns. Co., 11 Mich. 425; Case v. Hartford Ins. Co., 13 111. C7G; Jlilliery. Allegheny JInt. Ins. Co., 3 Pa. St. 470. For illustrations of the rule in cases of marine insurance, see the note, "Perils of t'.ie Sea," to sec. 2Co5, post. Fire insurance, ivater. — In lire insurance it is a rule that the policy covers losses by water used in extinguishing the fire: Talamon v. I fame Ins. Co., 16 La. Ann. 42G; Gr'isek v. Crescent Ins. Co., 19 Id. 297; Ind-pnidevt M. I. Co. V. Aijnev), 34 Pa. St. 96; Lewis v. Sj)rin(j- Jield /ns. Co., 10 Gray, 159. Thrfl. — It lias been further held that theft or other loss wliic'.i takes place while the insured goods are Iv.ing removed from the tiireatening peril to a place of safety is covered by t!ie policy: Willardlv. Maine Ins. Co., 40 Me. 200; White V. I'e/nMicIns. Co., 57 Me. 91 ; Xnnnnrl; V. Liverpool etc. Ins. Co., 30 Mo. 100; Lelberv. Liverpool etc. Ins. Co., 6 Bush, G39; Bnidy v. N. W. Ins. Co., 1 1 Mich. 425; Lewis v. Sprinj- field etc. Ins. Co., 10 Gray, 154; and see sec. 2o27, iifra. In such case, to warrant the re- moval and to render the insured liable for damage resulting therefrom, the danger must be iuuniuent, and such as would cause an ordi- narily prudent man to adopt such means for the preservation of his property: Case v. 1 1 art- Co., supra. ]jiijldnin(j which occasio;is combustion, from which a loss ensues, is within the ordinary pol- icy against lire; otherwise v>!icre no ignition occurs: Kuniiston v. Merrimar Ins. Co. ,40 Am. Dec. 193; Bahccckv. Mont /o/nrry /ns. Co., 4 N. Y. 323; Scripture v. Lowell Ins. Co., 10 Gush. 360; Andrews v. Union M. I. Co.. 37 Me, 256. Explosion. — In fire policies the cli.-stiuclion seems to be the same in the case of explosion as of loss by lightning. If the exi'losion re- sults in fire which causes loss, tlio policy at- taclies: Waters v. Merchants' Louisville Ins. Co., II Pet. 213; Scripture v. Lowll /ns. Co., 10 Gush. 35G; Imt it does not attach where the loss arises simply from the concussion without fire: CidiaUero v. Home ISlat. Ins. Co., 15 La. Ann. 217; or generally where no ignition fol- lows: Millandon v. N. 0. Ins. Co., 4 La. Ann. 15: lifar.yv. Sun Ins. Co., 14 Id. 2G4; St. Jolin V. American etc. Ins. Co., 11 N. Y. 516. Where the policy provides that the insurer ia not to be liable for any loss which occurs through explosion, it exem])ts him I'rom respon- sibility for loss by fire occasioned liy an explo- sion: Br/t/i/s V. ^V. A. etc. Ins Co., 53 N. Y. 44G; Union etc. Ins. Co. v. Foote, 22 0!'-io St. 340; Ins. Co. v. Tweed, 7 Wall. 44. Yet un- der such policy the insurer is I'abic if the ex- plosion was the result of a lire already burning: Briijgs V. y. A. etc. /lis. Co., suprn; Unio7i Ijis. Co. V. Foote, supra; Waters v. Li. JMer. /ns. Co., 11 Pet. 255; S''ri/)ture v. /jon-ell Ins, Co., 10 Gush. 357; Millandon v. y. O. Ins. Co., 4 La. Ann. 15. IJeslroyiii'i to save o'her propert;!. — Where buddings are blown up by order of liic munici- pal authorities, to prevent the siweadiiig of a eonfiagi'ation, tiic insurers are liable: City Fire Ins. Co. V. Corliss, 40 Am Dec. 258, and note; Phillips V. Protection /ns. Co., 14 51o. 220. 2G27. Z/O.s.s incurred in rescue from peril. Sec. 2()"27. An insurer is liable where the thing- insured is rescued from a peril insured a^fainst 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 per- manently 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 jjeril insured against. L3S<5 V7h'l3 rescuing; insured property. — of property removed to prevent its being For decisions bearing upon the subject of theft burned, see the note to the previous section. 2028. Excepted perils. Sec 2(;2o. Where a peril is specially excepted in a contract of insurance, a loss which would not have occurred but for such peril is thereby excepted; aUiou.-li the immediate cause of the loss was a peril which was not excepted. E^ioe >ted perils contributing to lo^";. — riisu'.ting in a fire wnicn occasions loss, in the See the caae of explosion exceptuil from policy note to sec. 2o2o, ante. 441 |§ 2629-2034 OBLIGATIONS. [Div. Ill, Part IV, 2629. Exoneration of insurer. Sec. 2G29. An insurer is not liable for a loss caused by tlie •willful act of the insured; but lie is not exonerated bj the negligence of the insured, or of hia agents, or others. [Amendment, approved March 30, 1874; Amendments 1873-4, 25G; took effect Jabj 1, 1874.] Negligease cf insured. — ilere negligence of tlie iusiiroil or of his agents, not aniountin-^ to fraud, will not release the insurer from li- ability; loss occasioned by negligence is one of the iiriucipal risks insured against: Perr'ui, v. Protection Ins. Co., 33 Am. Dec. 7-S; 67. Louis Inn. Co. V. Glasi/o7v, 41 Id. CGI; Ilcudertfoii v. Western Marine Ins. Co., 43 Id. 170; Gates v. I/adlsiu fns. Co., 5 N. Y. 409; JSlatheius v. Howard Ins. Co., 13 Barb. 234; Ilipids v. Sche- liectad;!, IG Id. 119; St. Jolin v. American Ins. ■Co., 1 Duer, 371; Dulinan v. Monmouth Ins. Co., 35 Me. 227; Enterprise Ins. Co. v. Parisoi, ^.~) Ohio St. 35. For other applications of the rule, lirst to tire Dolicies, see Gates v. Madison Co. M. I. Co., 5 N. Y. 4G9; Gove v. Furm^'.rs' Ins. Co., 48 N. H. 41; Johnson v. Berkshire M. F. I. Co., 4 Allen, 3SS; and second to marne policies, see American Ins. Co. v. Bryan, 20 Wend. 583; Patapsco Ins. Co. v. Coulter, 3 Pet. 222; Hale v. Washington Ins. Co., 2 Story, 17G; and McMillan v. Union Ins. Co., 33 Am. Deo. 112. holding that loss immediately arising from neglect to employ pilot could not be lecovered from the insurer; and see the note thereto. Negligence so great as to amount to ]iositive misconduct releases the insurer from liability for loss resulting therefrom: Citizens' Ins. Co. V. Marsh, 5 Pa. St. 387; May ou lus. , sees, 407- 411. ARTICLE X. NOTICE OF LOSS. 2633. Inf^itrer exonerated by failure to give notice of loss. Sec. 2G33. In case of loss upon an insurance against fire, an insurer is exon- erated, if notice thereof be not given to him by some person insured or enti- tled to the benefit of the insurance, without unnecessary delay. [Amendment, approved April 30, 1874; Amendments 1873-4, 25G; took effect Julj/ 1, 1874.] Notice of loss. — The original section applied conveys the necessary information: Plx v. 3Tut. to all insurances. By the amendment of 1874 the words "upon an insurance against fire" were introduced. 7^i}ne aul/orm. — If the time is specified in the policy withiu wliich notice muHt be given, the in- sured nmst comply therewith: O'I'eilli/v. Guar- dian Ins. Co., GO JST. Y. 109; Davis v. Davis, 40 Me. 232. The expressions "forthwith," "as iiooa as possible," "immediately," used in pol- icy as indicating when notice of loss should be given, mean that it must be given within a rnasonable time, without unnecessary delay: Kinijstey v. N. E. Ins. Co., 8 Cash. 393; Peoria Ins. Co. V. Lewis, 18 111. 553; Edwards v. Balti- more /us. Co., 3 Gill, 17G; Schenck v. Mejxer Co. M. Iiis. Co , 4 Zab. 447; West Branch Ins. Co. V. 11,'lfenstein, 40 Pa. St. 239. Tliis is ordinarily a (juestion for the jury: See the same cases; O'Brien v. Phcenir Ins. Co., 70 N. Y. 459; Continental Ins. Co. v. Lippold, 3 Neb. 291. The form of the notice is immaterial if it /;^s•. Co., 20 N. II. 198; Barbr v. Phosnix Ins. Co., 8 Johns. 397. It need not be in writing unless so stipulated: Killips v. Putnam,!^ ire Ins. Co., 33 Wis. 472. By wh-tm given. — Notice may be given by an agentof theinsureroninformation received I'rotn the insui-ed: West Branch Ins. Co. v. Ilclfenstein, 40 Pa. St. 239; or by one acting at the request of the insured: Stimson v. Monmouth Ins. (Jo., 47 Me. 379; or by an assignee of tlie policy: Cor- nell V. Lero;/, 9 Wend. 103; or l)y the real party in interest in any case: Watertoicn Ins. Co. v. Grove r, 41 Mich. 131. To whom given. — Where the policy designates the person to whom notice is to l>e given, that requirement must be observed: Patrick v. Farm-^r.-i' //iv. Co., 43 N. II. G21; Inland Ins. Jj Dep. Co. V. Staufer, 33 Pa. St. 397. Pa7m3nt of loss may be conditioned upon the giving of notice and proof of loss: Doyle v. Phoenix Ins. Co., 44 Cal. 204. 2G34. Preliminary proofs. Sec 2G:>4. When preliminary proof of loss is required by a policy, the insured is not bound to give such proof as would be necessary in a court of justice; but it is sufficient for him to give the best evidence which he has in his j)ower at the time. Preliminary proof of loss. — The notice is proofs are admissible in an action on the policy not proof; and the omission to notify the in- to sliow a compliance with t'le conilitions of sured that such notice is not proof is no waiver of the want of ]>roof: C licilly v. Guardian M. L. I. Co., 09 N. Y. 109. With respect to what is a sufficient compliance with tlie terms of the policy in regard to proof, see a very satisfactory statement of principles involved in Bum.'i'ead v. Dividend M. I. Co., 12 Id. 81, and a discussion of the subject in extcnso in May on Ins., sees. 4G5 et 8ec[. Preliminary the policv: Williams v. Ilart/ord F. Ins. Co., 54 Cal. 442. Waiver of preliminary proofs of loss will be presumed from acts of the insurer, render- ing the production thereof useless, or wlicre he so conducts himself cas to induce a belief on the part of t!ie insured that no proofs will I'O re- qu red: Williams v. Hartford Ins. Co., 54 Cal. 442. 442 Title XI, Chap. I.] TXSURxVNCE IN GENERAL. §§2635-2641' 2635. Waivers of ijcft'c/s in no/ ice, cfe. Sec. 2(joo. All uefeci-s in a uotice of loss, or in preliminary proof tliereof, wliicli the insured ujigbt remedy, and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, ai'e Avaived. Waiver of defects in notice. — Decisions hy tlie court of appcMls of New York is thus snppoiting the textl'.iat defects in preliminary proof are waivcil Ly Oiuitting to olijeet to them epiciriC'illy without unnecessary dc;hiy are: Mi-Mdster.'i v. WeJche^ler Co. 21. I. Co., ^5 \Veua. .379; Po.s'/? v. /Etna lun. Co., 4;! Barl). 3Go; Owen V. Fanners' etc. Iiis. Co., 57 Id. ry22; JLime Lis. Co. v. Cohen, '20 (Iratt. 8J.j; Fire- nien's [,is. Co. v. CrandaH, .'53 Ala. 9; Harris V. P/icenir I/is. Co., 3o Cum. 310. The insurers having pointed out some ob- jection canuot aftcrwa^rJs raise otliers: Phlki- delphin v. Profc'-tioii Ins. Co., 14 Mo. '220. So clearly stated by Chief Jii'^tice Cliurcli: "E/ery consideration of ])ul»lic ])oliey de- mauds that insurance com;)auies should be reijuircil to deal with customers with entire fairness and frankness. They may refuse to pay witliout specii'yiMg any ground, and insist upon any available ground, but if lliey p'ant tiiemselvcj upon a spoci.ied defense, and so notify tlie assured, tlu.'y s'lould not be per- mitt'.'d ti, 26 Gratt. 8.)4; Uathchonc v. Cii>i Fire Lis. Co., Z\ Conn. 194. And a genei-al refusal to pay, without sratin^; any reasons, dispeu'^es with the necessity of preliminary proof: Wi liaiif- hiirij Lm. Co. v. Cury, 83 111. 433; Aurora Li-t. C >. V. Kninirli, D-;! Mich. 239; Flarrimnn v. Qyenlntf. Co., 49\Vis. 71 ; Mayonlns. 4li8, 409. The distinction made in a late case deculed Papers used iu ))reliminarv ]iroof of death are prima facie evidence of all the f icts stated therein, and if the venlict of the coroner's jury produced to prove death recites death hy suicide, that recital must be oVL-rconie by the party seelcing to recover on tlio policy: Wattker v. Mat. L. Ins. Co., 3 West Coast Ui!p. 3oS. See a note in 8 lus, L. J. U.iJ, upon tlie sub- ject generally. 263G. Waiver of dclm/. Sec. 2C3G. Delay in the presentation to an insurer of uotice 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. iCelay "waived if not objected to. — " If a com]:any iiitends to avail itseif of the technical objection tiiat t!ie proofs arc not filed in time, oommcn f.jiness requires tiiat it should refuse to leceive them on that ground, or at least prom[)i.ly notify the assured of their determina- tion, otherwise thcfibjection should be legardcd as waived: " Brink v. Hanover F. I. Co., bO N. Y. 108. See this same case in 70 Id. 594, wlicre a different doctrine was a[iparently an- nounced. Consult decisions iu note to sec. 20-') '>, ■•'upra. Delay occasioned by the act of tlic insurer cannot be objected to by him: Cornell v. Z« Hoy, 9 Wend. 1G3. 2637. Cerfijicalc, when dif otliers who had m ide a Ivaaces oa tiie g >o Is in the waj'ehouso i) J...1 took out policies 0.1 tlie goods, ir, was pro- II >aaoed acaseuf doaole lusaraucc. JMorigagor 4 :? |§ 2642-2647 OBLIGATIONS. [Div. in, Part IV, and mortgagee insuring thoir respective in- terests ilo not create a double insurance: Wood- hiini U'liik V. Ckar/.er Oak I/i'f. Go., 31 C mn, 617: Ifoll>ro>k v. Am. F. Ins. Co., 1 Cart. 19:5. Otli3ri;i5uraii:;3. — Toconstitutesncli "other insurance" as an applicant is baund to disclose on pain (»f forfeiting his policy, tlie insurance must be on the same insurable interest, and must be for tlie beueiit of such applicant: ^liia F. T. Co. V. Tjihr, 30 Am. Dec. 90; Rowley v. Empire In.i. Co., 3 Keyes, 5'/.); Mc Mauler v. President /iis. Co. N. A., 55 Barb. 23;{; PU.ney V. (Hen Fi/li //IS. Co., Gl Barb. 312. If the agsntof the eom')any knew of other insurances at t'le time of the insurance, sucli inforinatiou will be deemed within the kmwle Ige of the company, and the policy will be held valid: Fiahbeck v. P/wenix I lis. Co., 54 Cal. 422. 2842. Double insurance contribution. Seo. 2312. Ill case of double insurance, the sereral iusureraare liable to pay losses thereon as follows: 1. In fire insurance, each insurer must contribute ratably towards the loss, without regard to the dates of the several policies; 2. In marine insurance, the liability of the several insurers for a total loss, ■whether actual or constructive, where the policies are not simultaneous, is in the order of the dates of the several policies; no liability attaching to a second or other subsequent policy except as to the excess of the loss over the amount of all i^revious 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 insui'ers on simultaneous policies is to contribute ratably with each other. The insolvency of any of the insurers does not affect the proportionate liability of the other insurers. The liability of all insurers on the same marine interest for a partial or average loss is to contribute ratably. [Amendment, approved March SO, 1874; Amendments 1^1^-A, 257; took effect July 1, 1874.] Contribution in case of doubls insuran 33. The original suction read: "Ii case of dj.iblj insurance, the insured may claim payment of a loss from any one of the insurers, who, on i)ay- ing it, may require the others to contribute ratably thereto." In proposing the above amendment, tiie coile examiners explained: "The present section works unjustly by en- abling the insured to compel a solvent uuj. 'insurance, what. Sec. 2G4G. A contract of reinsurance is one by which an insui-er procures a third person to insure him against loss or liability by reason of such original insurance. Rein3-aran:;e is not double insurance: Perkins V. .V. IJ. Mar. Ins. Co., 12 Mass. 214. See a brief sketch of the history of reinsurance iu May on Ins.. sjc. 10. From the statement of that author, it seems that at one time rein- surance was pro'nibited in I'^ngland on account of tlie inducements it offered to speculating in premiums. 2647. Dlscloaurei^ required. Seo. 2047. Where an insurer obtains reinsurance he must communicate all the representations of the original insured, and also all the knowledge and 444 Title XI, Chap. TI.] MARINE INSURANCE. §§2048-2655 infonnation be possesses, wlietber previously or subsequently acquired, which are material to the i*isk. 2 Duer on Ins. 420. 2648. I!('ini(. Co. v. Protection Ins. Co., \ the auK)unt of ;he recovery and costs not un- IStory, 4oS; 20 Uarb. 408. necessarily incurred: Blaclcstone v. AUtmunia 2649. Orkjimd insured has no interest. Sec. 2G4:9. The original insured has no interest in a contract of reinsurance. " llerhevrath v. Am. Im^. Co.. 3 Barb. Ch. 03; any one risk exceeds one tenth part of their cap- CarrinijUm v. Com.. Fire Iiu^. Co., 1 Dosw. 152. ital stock actually paid in, to reinsure such ex- • * * Here, in this code, by section 428, in- cess. This is dune for the ujore ample security Burers (marine or tire) are reciuired, whenever of the insured: " Commissioners' note. CHAPTER II. IMARIXE INSURANCE. " Rules respecting marine insurance, which in these provisions, as they are not within the are br.t applications of the principles of inter- scope of a municipal statute:" Commissiouera' national law to this subject, are not embraced observation. Ai;ticle I. Defixition of Marine Ixscraxce ^ ., . 2055 II. I N.SCRAELE IXTEl'.EST 2050 III. Concealment 2000 IV. Representations 2070 V, Implied Warranties 2681 VI. The Voyage, and Deviation 2092 VII. Loss 2701 VIII. Ap.andonment 2716 IX. Measure of Indemnwy 2736 ARTICLE I. DEFINITION OP MAEINE INSURANCE. 2G55. 3Iarine insurance, ichal. Sec 2G55. Marine insurance is an insurance against risks connected with navigation, to wbich 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. Perils of the se ^ are defined in section 2199, the voyage. The guns, ammunition, etc. , of an C7i/''%- and m the note to Tan /A'r^i V. 'J'ciij/or, 41 armed ship constitute a part of its insurable Am. Dec. 281, the cases are collected and cure- value: 2 Valin. 55; 1 Einerigon, 277. fully classilied. "Cargo. — This term is used to include goods, Q he following note is taken from that of the wares, merchandise, and property generady. code couimissiuneis: "See 1 Arnould on Ins. 2; " Freislitage. — A policy on freightage, or see also f-ec. 20U4, ;'0s<. For delinitious and in- freight as it has heretofore been called — see formation on this subject generally, see Phil- note to sec. 2()01, /'0.s<— generally, for successive lips on Ins. 1; 1 Arnoukl on Marine Ins. 15; passages or for a certain period, usually applies ■^larshall on Marine Ins. 2; Di.xon on Marbie t.) whatever amount of freightage may bo peud- lus. 20; 3 Kent's Com. 25.3. lug at dillercnt times successively: JJui/j v. " What is covered by a policy on ship. — Aki/iii''' /"K. Co., 7 How. 505. The ship as a subject vl insurance includes the ''Othsr iusuraLlo interests: See sec 2546; body, tackle, apparel, ordnance, furniture, also sees. 2547-2557, inclusive." boats, and whatever is necessary to equip it for 445 §§ 2G59-2GG9 OBLIGATIONS. [Div. HI, Part IV, ARTICLE II. INSURABLE INTEUEST. 2659. Inf^nrahlc. interest in a ship. Sec. 2G59. The ownei' of a ship has in all cases an insurable interoat in it, even when it has been chartered by one who covenants to pay him. its value m case of loss. Bottomry d^fin'sd: See pofit, sec. 3017. Rights of bottomry bolder and insurer: See sec. 3025, j)ost, in note. 2660. Interest 7-educed h>j bottomry. Sec. 2GG0. The insurable interest of the owner of a ship hj'pothecated by bottonny is only the excess of its value over the amount secured by bottomry. Insurable interest generally: See sees. 2.54G et seq., and notes thereto. 2G61. Freightage, what. Sec. 2GG1. Freightagfe, in the sense of a policy of marine insurance, sij^nilies all the benefit derived by the owner, either from the charteriujiT of the ship or its employiueut for the carriage of his own f]foods or those of others. "The word 'freightags' is used throughout in which it is here used: See note to sec. 2655:" this coilo instead of 'freight,' to signify the hire Coinniissionors' note. of a carrier, for the obvious reason that the latter 8;ea discussion in Barber on Ins., sec. 96, word properly means the thing carried. Tiie who under this section may be considered not word 'freightage' is given in Weljstcr's, Wor- an "owner:" See sec. 2355. cester's, and Bouvier's dictionaries in the sense 2662. Expected freightage. Sec. 2GG2. The owner of a ship has an insurable interest in expected freightage which he would have certaiuly'earned but for the intervention of a peril insured against. Fxpected freightage. — From what time 12th ed., sees. 270, 311; 1 Arnould on Ins. 202; freightage may be deemed expected for purpose and see next section, of insurance, see tlie notes in 3 Kent's Com., 2663. Interest in expected freightage ivhat. Sec 2GG3. The interest mentioned in the last section exists, in the case of a charter-party, when the ship has broken ground on the chartered voj'age, and if a price is to be paid for the carriage of goods when they are actually' on board, or there is some contract for putting them on board, and both ship and goods are ready for the specified voj-age. Interest in expected freightage. — See a based for the most part upon decisions of the very ehiborate discussion of the principle em- courts of Great Britain, in Barber on Ins., sec. bodied in tliis section, and of connected topics 98. 2664. Insurable interest in profits. Sec 2GG4. One who has an interest in the thing from whicli pi'ofits are ex- pected to proceed has an insurable interest in the profits. 2665. Insurable interest of charterer. Sec. 2GG5. The charterer of a ship has an insurable interest in it, to the extent that he is liable to be damnified by its loss. ARTICLE III. CONCEALMENT. 2669. hiformation must be communicated. Sec 2GGy. In marine insurance each party is bound t6 eom:unnicato, in addition to what is required by section twenty-five hundred and sixty-three, all the information which he possesses, material to the risk, except such as i3 men- tioned in section twenty-five hundred and sixty-four, and to i>tatc the exact and 44G 3965. Property Exempt From Effect of Mortgage, When. When personal property mortgaged Is, thereafter [removed from the covmty in which it is situated, the lien of the mortgage shall not be affected thereby for thirty days after such removal; but, after the expiration of such thirty days, the property mortgaged is exempted from the operation of the mortgage, except as between the parties thereto, until J either: 1. The [mortgagee causes] the mortgage to be recorded in the county to which the property has been removed; or 2. The [mortgagee takes] possession of the property as pre- scribed in the next section. (In effect 60 days from and after February 22, 1909. Stats. 1909, Chap. 53.) Civ. Code, 1909. Tttle XI, CiiAP. II.] MATJNE IXSURxVXCE. §§ 2070-2GSI "whole truth in relation to all matters that he represents, or upon inquiiy assumea to disclose. Concealment in insurance generally: See and 1 Marshall on Marine Ins. 40.5, text-writers sees. 2jG1 ct ecc|., and sec. 2G72. referred to by the code comnaissionera as clearly Concealment iu marine insurance: See an setting forth the principles embodied in thia interesting disciissiou of this Euhject in IJarber article. on Ins., sec. 101; see also 2 Ducr on Ins. 403, 2670. Material information. Sec. 2G70. In marine insurance, information of the belief or expectation of a third person, in reference to a material fact, is material. Stated by Barber on Ins., sec. 102, to introduce Representation of Pspectation avoids con- a new rule into the law of marine insurance. tract, when: See sec. 2077. 2671. Presumption of knowledge < floss. Sec. 2G71. A person insured by a contract of marine insurance is presumed to have had knowledge, at the time of insuring, of a prior loss, if the informa- tion might possibly have reached him in the usual mode of transmission, and at the usual rate of communication. Knowledge cf loss. — " Heretofore t!ic law tion is recommended by Mr. Duer, Ins., voL has been that the knowledge of the assured or of 2, p. 403. The presumption raised by the pro- his agents of the material facts alleged to have vision of the text is not absolute; it may be re- been concealed is never presumed, but nnist be pelled by other evidence. Its only effect seema establislicd by positive evidence: Sec Livi^njston to be to sliift the liurden of proof: See Stewart v. V. Di'lafichl, 3 Cai. 49. The rule of tlie text nunlop, 4 Bro. P. C, Tomlin's ed., 4S3; 2 Duer prevails in continental Europe, and its adop- on Ins. 53D-541:" Commissioners' note. 2672. Concealments which only affect the risk in question. Sec. 2G72. 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 detention;" 3. Tlie liability to seizure from breach of foi-eign laws of trade;; 4. The want of necessary documents; and, 5. The use of false and simulated papers. ARTICLE IT. representations. 2S7G. Effect of intentional falsity. Sec. 2GT(). If a representation, by a person insured by a contract of marine insurance, is intentionally false in any respect, whether material or immaterial, the insurer may rescind the entire contract. lispresentations generally: See ante, sees. 2571 et seq. 2677. licpresentadon of expectation. Sec. 2G77. The eventual falsity of a representation as to expectation does not, in the absence of fraud, avoid a contract of insurance. Ezrpectation of a third person material: Sec. 2371. See Mr. Barber's valuable expoaitiou of the subject of this section: Ins., see. 106. ARTICLE V. IMPLIED WARRANTIES. 2631. Warranty of seaworthiness. Siic. 2G81. In every marine insurance upon a ship or freight, or freightage, or upon anything which is the subject of marine insurance, a warranty is implied that the ship is seaworthy. [Amendment, approved March 30, 1874;, Amendments 1873-4, 257; took effect July 1, 1874.] 447 §3 26S2-2BS5 OBLIGATIONS. [Drv. Ill, Part IV, The origln^il 330tion confined the implied That the fact of cPTccting an insurance is an warranty ot seaworthiness to i;i3iirauccs on the iuipliei warranty of the seaworthiuesa of the property of tiio ship-owner, for tlie reason, as vcsncl is laid down in Pliillips on Ins , see. 09.'); the commissioners state, tliat the former la'.v V/ldtucy v. Orean fn^. Co., 30 Am. Doc. 50!), implying such a warranty in every case — the i:i note; Warren v. UiiiU-d Inn. Co., 1 Id. 1G4; law as re-enacted liy the a!!iend:nent of 1S74 — Barnewall v. Church, 2 Id. ISO, and iiDtes to " is not founded upon ri-ason. Insurers knowthe t'.iosa cases; Jligijie v. American Lloijds, 14 quality of vessels much better t!i:ui shippers." Fc.'. Rep. 143. Inipliod v/arranty of ssawortliiaasa. — Geav7ortliiia333 dsfined: See next section. Sj632. ScaioorlliuiPHii, \oliat. Sec. 2G82. A ship i.s seaworthy when reasonably fit to perform the services, and to encounter the ordinar}'- perils of the voyage, contemplated b}' the parties to the policy. Ssawortliiness defined: Consult sees, 2fiS.'t-26S5> 2683. Sen worthiness, xolien must exist. Sec. 2G83, An implied warranty of seaworthiness is complied with if the ship be seaworth}' at the time of the commencement of the risk, except in the follow- ing cases: 1. "U'hen the insurance is made for a specified length of time, the implied warranty is not complied with unless the ship be seaworthy at the commence- ment of eveiy 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 Avarranty is not complied with, unless each vessel upon which the cargo is shipped or transshipped be seaworthy at the commencement of its particular voyage. [Amendment, approved March 30, 1874; Amendments 1873-4, 237; took effect Jtdi/ 1, 1874.] In time policies the vessel must be sea- 32 Conn. 21. And with respect to the continn- worthy at the commencement of the risk: Am. auce of seaworthiness during the voyage, coin- I)is. Co. V. Ofden, 20 Weud. 2S7; Jionse v. l/is. pare sections iJSo, 2GSG; and see llarbcr on Ins., Co., 3 Wall. jun. 3G7; Capen v. Washin-jtoa sec. 109. This same author shov/s tlie ilifTcr- Im. Co.. 12Cus'n. 517; Iloxie v. Pacijic M. fns. encc between the American and English rule ia Co., 7 Allen, 211; lloxie v. Home M. Ins. Co., this particular. 2684. What things are required to constitute seaworthiness. Sec. 2G84. A warranty of seaworthiness extends not only to the condition of the structure of the ship itself, but requires that it be properly laden, and pro- vided with a competent master, a sufficient number of competent officers and seamen, and the requisite appurtenauces and equipments, such as ballast, cables and anchors, cordage and sales, food, water, fuel and lights, and other necessary or proper stores and implements for the voyage. Requisites of seaworthiness.— To comply Co., 12 Johns. 1.13; with competent ofSccrs anrl witli t!ie warranty of seaworthiness, tlie vessel seamen: S'dca v. Low, 1 Johns. Cas. 1S4, 108; must be not only properly constructed, that is, Draper v. Comvi. Ins. Co., 2 Met. 231; 21 N. have a proper caistruction for vessels of tlie Y. 37S;whic!i will include takin ,' a pilot M-!icre class insured, and t!ie service in which tliey are suoli is the custom of the place to do so: Vrhit- engaged: Afnorfs v. Louisville Undennriters, It nen v. Ocean fns. Co., 33 Am. Dec. .50;), in note; Fed. Hep. 223; but she must b ; properly laden: and having t!ie requisite equipments and appur- Cltane V. La;ile Ijls. Co., .'> Pick. 51; Dhiait v. tenanccs-.Moses v. Sim Mutual Inx.Co.. I Duer, Ocean Ins. (Jo , 10 Id. 303; be provided wit!i a 159; Fonlaine v. Phoenix Ins. Co., 10 Jo'nns. 58; competent master: Walden v. Fireman's Ins. Mijers v. Girard Ins. Co., 2G Pa. St. 102. 2635. Diffcreut degrees of seaworthiness at different stages of the voyage. Sec. 2G85. Where different portions of the voyage contemplated by a policy differ in respect to the things requisite to make the ship seaworthy therefor, a ■warranty of seaworthiness is complied with if, at the commencement of each portion, the ship is seaworthy with reference to that portion. 448. Title XI, Chap. II.] MARINE INSURANCE. §1 26S6-2C94 2686. Unseaworthiness during the voyage. Sec. 2G86. When a ship becomes unseaworthy during the TOjage to which an insurance relates, an unreasonable delay in repairing the defect exonerates the insurer from liability from any loss arising therefrom. Unseawortliiness during the voyage.— 7, 1&-19. As to the duty of the master to ex- The rule as above announced is in harmony ercise due diai^ence to restore the vessel to a with Ami-rlcaii Ins. C>. v. Ogden, 20 Wend, seaworthy condition during the voyage, seo 287; Arnod v. Pacific M. Ins. Co., 7S N. Y. Barber ou Ins.. sec. 109, p. 234. 2687. Seaworthiness for purposes of insurance on cargo. Sec. 2G87. A ship which is seaworthy for the jHirpose of an insurance upon the ship may nevertheless, by reason of being unfitted to receive the cargo, be unseaworthy for the purpose of iusumnce upon the cargo. 2688. Neutral papers. Sec. 2688. Where the nationality or neutrality of a ship or cargo is expressly warranted, it is implied that the ship will cany the requisite documents to show such nationality or neutrality, and that it will not carry any documents which oast reasonable suspicion thereon. , Neutral papers. — Tiie owner shoukl provide v. Livermore, 14 Mass. 108. That the vessel the master with the requisite documents to ])re- should not carry documents that wouKl subject vent the capture of a neutral vessel: See Coo^ her to capture: Ulajye v. X. i\ /jis. (Jo,, I id(je V. X. y. Firemeri's Ins. Co., 14 Johns. 308; Cai. 549. Majge v. N. Y. Ins. Co., 1 Cai. 549; llifjij'au ARTICLE VI. THK VOYAGE AND DEVUTIOK. i2692. Vorjage insured, how determined. Sec. 2G92. 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. Course of sailing.— Mercantile usage will so tlie mention in the policy of the ^erTntHi of the justify a vessel stopping at customary imme- voyage, ami of some intermediate ports, does diato ports out of the direct course between not proliib't touching at other intermediate the placfs of beginning and ending the voyage: ports which, in making the voyage, it is usual Folsom v. ilaniij'acturprs' Ins. Co., 10 Urav, for vessels to enter: McCall v. Hull Mut. Ins. 46.]; Folsom v. merchants' Ins. Co., 33 Me. 414; Co., GO N. Y. 506. Locked v. Merchants' Ins. Co., 10 Rob. (La.) 339; 2693. Course of sailing, how determined. Sec. 2G93, If the course of sailing is not fixed by mercantile usage, the Toyage insured by a policy is the way between the places specified which, to a master of ordinaiy skill and discretion, would seem the most natural, direct, and advantageous. 2694. Deviation, what. Sec. 2094, Deviation is a departure from the course of the voyage insured, mentioned in the last two sections, or an unreasonable delay in pursuing the voyage, or the commencement of an entirely different voyage. Deviation.— The voyage insured.— For il- Unreasonable delay in pursuing the voy. lustiatiun of a lilieral construction given to the age is a deviation: Arnold v. Pac'ijir M. Im. description < f the voyage for wliicli the insur- Co., 78 N. Y. 1; Up'on v. Salem Ins. Co, 8 ance was given, see Dlrley v. Dallhnore Iiu^. Met. GO.'); Srtlle v. .S7. Lovis P. Ins. Co.. 7 Mo. Co., 7 Cranch, .S27; Maxwell v. UohhiHon, I 379; Martinv. Dehiw^ire Ins. CQ.,2\\i\ii\\.2:A\ Johns. 333; /)e P'-ysterv. Sun Mutual I uj*. Co., Hermann v. Western F. '. Co., 73 N Y. 4(>0, affinring the same case, 9 Hun, 38.3. To'al loss of "memorandum" artiolea. It is said ill Be Peyster v. Sun Mat. /ns. Co., 10 N. Y. 27"2, to be tiie "settled law in this state that there can be no recovery in case of loss of memorandum articles when any portion thereof arrives in specie at the port of destination, al- though possessing no value tiiere." So Burt V. Brewers' etc. Ins. Co., 9 Hun, 38.^, approved in 78 N. Y. 400; Globe Ins. Co. v. Sherlock, 25 Ohio St. 50; 2 Parsons on Mar. Ins., 68-91; Phillips on Ins., sees. 1485, 1487. Compara sees. 2711, 2712. Y'^et there may be a total loss of a cargo which, damaged by perils of the sea, un- dergoes a change which renders it valueless, and makes it such a nuisance as to render its transportation wholly impracticable: Wdliama v. Cole, 10 Mo. 207; Williams v. Kennebec Mat. Ins. Co., 31 Id. 433; De Pei/ster v. Sun Mat. Ins. Co., 19 N. Y. 272; Wallemtein v. Colum- bian Ins. Co. , 44 Id. 204; Poole v. Protectiov Ins, Co., 14 Couu. 47. 2705. Consfructive total loss. Sec. 2705. A constructive total loss is one "which gives to a person insured a riglit to abandon, under section twenty-seven hundred and seventeen. Abandomneat for construotive total loss: Sees. 2716 et seq. 2706. Presumed actual loss. Sec. 2706. An actual loss may be presumed from the continned absence of a ship without being heard of; and the length of time which ia sufficient to raise this presumption depends on the circumstances of the case. 2707. Insurance on cargo when voyage broken up. Sec. 2707. "When a ship is prevented, at an intermediate port, from complet- ing the voyage, by the perils insui'ed against, the master must make every exer- tion 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. {Amendment, approved March 30, 1874; Amendments 1873-4, 258; look effect July 1, 1874. j Insurance on cargo, voyage broken up. — The original section did not contain tlie clause "by the perils insured against," and it was therein inserted by the ainendnient of 1874, in accordance with the suggestion of the code ex- aminers, who gave as their reason: "Tliis limitation of the circumstances under which the insurer must remain liable on transshipped cargo is necessary for his protection. The present section would bin. If freightage is lost as a direct consequencfl of the omission of the master to forward tht cargo from an intermediate port to its destina tion, the insurer on freightage is not liable od such loss: Grisicold v. N. Y. Ins, Co., 1 Johns. 205; S. C, 3 Id. 321; Schleffelln v. N. Y. Ins Co., 9 Id. 21; American /ns, Co, v. Center, 4 Weml. 45; Clark v. il/asx. F. «(.• M, Co., 2 Pick. 104; Lord v. Neptune Ins. Co., 10 Gray, 109. Constructive total loss of cargo: See seo. 21\1, post. subd. 4. 2708. Cost of reshipment, etc. Sec. 2708. In additiv-n to the liability mentioned in the last section, a marine insurer is bound for damages, expenses of discharging, storage, reshipment, extra freightage, and all other expenses incurred in saving cargo reshipped pursuant to the last section, up to the amount insured. Cost of reshipment. — This section follows drawn from the French law: Code de Com., the rule generally adopted iu this country and sec. 393; 3 Kent's Com., sec. 338. 2709. When insured is entitled to payment. Sec. 2709. Upon an actual total loss, a person insured is entitled to payment without notice of abandonment. 451 §§ 2710-2717 OBLIGATIONS. [Div. ni, Pabt IV, 2710. Abnndonment of goods on insurance on profits. Section 2710 was repealed by act approvcil a recovery for a constructive total loss. The March 30, 1874; Amendments 1873-4, 258; code examiners recommended the repeal, say- took effect July 1, 1874. ing, "The section repealed is inconsistent with Tliis section provided tliaton an insurance on section 2738, which expresses the true rule." profits the goods must be abandoned to entitle to 2711. Average loss. Sec. 2711. Where it has been agreed that an insurance upon a particular thing or class of things shall be free from particular average, a nxarine insurer is not liable for any particular average loss not depriving the insured cf the possession, at the port of destination, of the whole of such thing, or class of things, even though it become entirely worthless, but he is liable for his pro- portion of all general-average loss assessed upon the thing insured. [Amerid- meid, approved March 30, 1874; Amendments 1873-4, 258; took effect July 1, 1874.] Free from average unless general. — In parts of a machine without all the other parts, Barber on Ins., sec. 130, p. 279, is given an audit would cost as much to supply the missing explanation cf the origin and meaning of this portions as the entire machine would cost, phrase, showing that it was first introduced into The court said, therefore: " There was no part policies of insurances about the middle of the of the )nachinery saved, however much of rusty last century, with a view to exempt the under- iron may have been taken from the wreck." writer from liability for a partial loss of per- There was a total loss of the article insured, a ishal)le articles. That author's entire section machine. 130 will be found to contain a very satisfactory Where goods are shipped in bulk and insured discussion of the question sug'jested. American in bulk, the principles above stated, and sup- and English cases are there collected and com- ported by references in the note to section mented upon. 2704, apply. Where the articles are separately Memorandum articles are not totally lost if shipped, but are insured in bulk and valued in they arrive in specie at port of destination: See bulk, the loss of a particular package or pack- note, sec. 2704, ante. As to what is a destruc- ages will not entitle to a recovery under the tion in specie, Wallerstein v. Columbian lax. memorandum: llumphreys v. Union Ins. Co., Co., 44 N. Y. 201, presents .1 very interesting 3 Mason, 421); Moreaa v. LT. S. Ins. Co., 1 state of facts, and gives rise to a valuable ex- Wheat. 210, 227. But were articles are sop- amination of the principles involvetl. There arately shipped and separately insured., a h).>j certain portions only of a piece of macliinery of any article is a total loss to that cxtcui: were saved. The portions were of no use as Ketldl v. Alliance Int. Co., 10 Gray, 144. 2712. Insurance against total loss. Sec 2712. An insurance confined in terms to an actual total loss does not cover a constructive total loss, but covers any loss which necessarily results in depriving the insured of the possession, at the port of destination, of the entire thing insured. [Am('ndme)it, approved March 30, 1874; Amendments 1873-4, 259; took effect July 1, 1874.] Bur: v. Brewerx' etc. Irn*. Co., 78 N". Y. 400; in an opinion approved by the court of last S. C, 9 Hun, 333, where the cases are collected resort. ARTICLE yill. AliANDONMENT, 2716. Abandonment, what. Sec 271G. Abandonment is the act by which, after a constractiTe total loss, a person insured by contract of marine insurance declares to the insurer that he relinquishes to him his interest in the thing insured. Abandonment, reqnisitss of: See sees. 2718-2723. Constructive total 1d33 deanod: Sec. 2703. 2717. When insured may abandon. Sec 2717. A pensou insured by a contract of marine insurance may abandon the thing insulted, or any particular portion thereof separately valued by the policy, or otherwise separatel}' insured, and recover for a total loss thereof, when the cause of the loss is a peril insured against: 4r)2 TiTLK XI, Chap. II.] MARINE INSURANCE. §2717 1. If more tban half thereof in value is actually lost, or would ha^e to be expended to recover it from the i^eril; 2. If it is injured to such an extent as to reduce its value more than one half; 3. If the things insured, bein^ a ship, the contemijlated vo3'age cannot be lawfully performed without incumng an expense to the insured of more than half the value of the thing abandoned, or without incumug a risk which a pru- dent man would not take under the circumstances; or, 4. If the thing insured, being cargo or freightage, the voj'age cannot be per- formed nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cargo, without incurring the like expense or risk. But freightage cannot in any case be abandoned, unless the bhip is also abandoned. Constructive total loss. — This provision, in ikck.rini,' when the insm-ed may ahandou, makes twogeneial classes (if cases, thcoueinchul- iu^ iiiMuances of art'cles in bulk, and tlie other eiabnicin;^' insurances of articles separately valued or insured. As illustrations of con- ctnietive total loss of articles separately valued or insured, see Deidi'rick v. (Jomnnrcial Iim. Co., 10 Jolins. 1.34; Ocean Ins. Co. v. Carriii;/- ton, 3 Conn. 357; h'etlill v. Allicvire Iiis. Co., 10 Gray, 144, 154; hilloway v. Ni'ptune Ins. Co., 12 Id. 7;i. Subd. 1, 2. Loss to one half value. — In the following; extract from the opinion of tlie court in Bradlie v. Mar'iand /im. Co., 12 I'et. 378, niany of the questions suf];gested l)y tliis section are answered, and they thei'e approve the docLiine as declared in 3 Kent's C'lUi. 3:29, S30: "It is understoot! to be a (ixed rule that if the ship require repairs to the extent of mo!e liuin half her value at the time of the loss, tlio insured may abandon; for if ship or cargo he damaged so as to diminisli their value aljove half, they ai-e said to be construc- tively lost. * * * The meaning of the words in the lule, 'one half of the value,' has been licldtobcthc half of thegeneral market value of the vessel at *iie time of the disaster, and not her va.lue for any 1 articular voyage or purpose. The expense of tfie repairs at the j ort of necessity, includiii ,' tiie expense of getting tlie siii]) ailoat if stranded, is tlie true test for determining the amount of the injury; anujiia/ v. U. Ins. Co., 3 Johns. Cas. 182; Cooliihje v. (llonce.ster fiis. Co. sec. 329. This must be taken with the qualiti- cation expressed in section 2712, wliere tlie insurance stipulates for liability only in cases of actual total loss; and see note to section 2704. Other decisions of American courts recog- nizing tlie iusuied to abandon to the insurer cargo damaged by the perils of the sea to more than one half its value arc: Lvdlow v. Cohnnli'd Ins. Co., 1 Johns. 335; Vandinhcnvlv. United Ins. Co., Id. 400; Mo.. ] 1 La. Ann. 459. For the rule as to one third new for old in cases of partial loss, see sec. 2740, jiosf. The cost of taking a damaged vessel into port for repairs, Lincoln v. Hope Ins. Co., 8 Gray, rasnt: See sec. abandoned unless the sliip is abandoned is new to the law of insurance. It seems to ignore the fact that the abiindonment of frcigiit or 'freightage' may be tiie result of loss of cargo, though the sliip remains uninjured." Frsigh'age, how aifeotod by abandon* 2730. §§ 2718-2723 OBLIGATIONS. [Div. Ill, Part TV, 2718. Hind be vnqualifird. Sec. 2718. An abandonment must be neither partial nor conditional. good: where articles are separately sliippeil and sep- not Dec. Conditional abandonmant is PiiTie V. Uc-an Jiu. Co., 2'J Am Uhl'i'infion V. Da'l, II) ?vIa3S. 00. Paitial abandonment not permiasible, but 5G7; arately insured the loss is to be viewed with respect to the separate articles: See the note to sec. 2711. 2719. Wlien may he made. S!::c. 2719. An abandonment must be made within a reasonable time after the information of the loss, and after the commencement of the voyage, and before the party abandoning has information of its completion. Abandomnsnt -witliin reasonable time. — As to what is a reasonable time in marine iu- Bnrance, see the discussions in 2 Arnould's Ins. *11G4 et seq.; 2 Phillips on Ins., sec. 1069. The insured has no right to wait to ascertain the extent of loss on the sale of the damaged jiroperty: Teasdale v. Chirleston Ins. Co., 3 Am. Dec. 70,"). Nor can he abandon after tiie vessel has been repaired and is successfully pursuing her voyage: Depau v. Ocean Ins. Co., 13 Id. 431. Having taken a reasonable time to ascertain the loss, and that he is entitled to abandon, the insured, while not bmind to exercise his right, l^arl V. Shaw, 1 Am. Dec. 117; Bosley v. Chesa- jieake Ins. Co., 22 Id. 337, must, if he intends to do so, give notice of aband jiimeiit promptly: lleijnolds v. Ocean Ins. Co., 22 Pick. 190; Mary- 2720. Abandonment may he dcffated. Sec. 2720. Where the information upon which an abandonment has been made proves incorrect, or the thing insured was so far restored when the aban- donment was made that there was then in fact no total loss, the abandonment becomes ineffectual. land Ins Co. v. Ruden, 6 Cranch, 338; Duncan V. Kork, Wall. 45. Completion of the voyage, within the mean- ing of policies of insurance, is not until th« vessel has been moored twenty-four hours in safety in her port of destination: Burt v. BretO' ers" etc. Ins. Co., 78 N. Y. 400; S. C, 9 Hun, 383; Pezant v. Ndtional Ins. Co., 1.5 Wend. 433; Parage v. Dale, 3 Johns. Cas. 156. The insured cannot abandon on the ground that the voyage has been defeated by capture after he has received intelligence that the vessel has been released and has arrived in safety at her destined port: De Peau v. Russell, 2 Am. Dec. 676. Omitting to abandon, insured may still re- cover for his actual loss: Sec. 2732, post. Right to abandon depends on the state of facts at the time of abandonment, not upon the facts which had previously existed, or which were supposed to exist: Dickey v. American Ins. Co., 20 Am. Dec. 763. ilore- over, subsequent facts coming to the knowledge of the insured cannot be made to relate so as to strengthen a case for abandonment which did not exist when the notice was given: Bosley v. Chesapeake Ins. Co. , 22 Id. 337. If the vessel is lost at the time of the aban- donment, her subsequent recovery by salvors, her master never being able to recover posses- sion of her so as to prosecute the voyage, " will not cut down the total loss to a partial one:" S710W V. Union Ins. Co., 119 Mass. 502. It seems that in England the right to recover on abandonment depends upon the state of facta existing when the action is brought: Barber on Ins. 355. 2721. IIoiv made. Sec. 2721. Abandonment is made by giving notice thereof to the insurer, which may be done orally, or in writing. 2722. Requisites of notice. Sec. 2722. 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 accompanied with proof of interest or of loss. If he assigns an insufficient cause he is bound by it, and cannot take advantage of a subse- quent event without a newabamlonment: Sny- dam V. Marinf Im. Co., 3 Am. Dec. 307; Ileeb- nerv. Ea/le Ins. Co , 10 Gray, 139; McConochie V. San M. I. Co., 26 N. Y. 477. Notice must be explicit and state grounds of abandonment: Boxleyx. Chetapi^ake Inx. Co., 22 Am. Dec. 337; Pier e v. Ocean Ins. Co. , 29 Id. 5G7. The insured cannot avail him- self of any other grounds: Sinjdam v. }farine Ins. Co., 3 Id. 307; Pierce v. Ocean Ins. Co., 29 Id. 567; and sec. 2723. 2723. No other catme can he relied on. Sec 2723. An abandonment can be sustained only upon the cause specified in the notice thereof. See note to last section. 454 Title XI, Chap. II.] MAEINE IKSURAlsCE 2724-2728 2724. Effect. Sec. 2724. An abandonment is equivalent to a transfer, by the insured, of his interest, to the insurer, with all the chances of recovery and indemnity. freightage pro rata itlncrU on goods transported Effect of abandonment. — The insurers be- come substituted, by reason of the abandon- ment, to the interests of the insured in the thing insured: Rorjtrs v. hosack'a Ex'rs, 18 Wend. 319; Atlantic lux. Co. v. Storrow, 5 Paige, 2So; Sun Ins. Co. v. Ilail, 104 Mass. 507; Come(jy3 V. Vasse, 1 Pet. 213; so that the insurers be- come entitled to an indemnity from a foreign government for the loss occasioned: I'of/ers v. Hosack's Ex'rs, 18 Wend. 332; Grade v. Palmer, 8 Johns. 24G; or to damages awarded for such loss: Atlantic Ins. Co. v. Storrow, 5 Paige, 285. A suit iu equity or admiralty, in- Btituted to recover from one owing compensa- tion to the insured, may be brought in the name of the insurer alter abandonment: Hall V. Ilaifroad Co., 13 Wall. 372; Hart v. IVestern I}. R. Co., 13 Met. 90; The Liberty. 7 Fed. Rep. 226; The. Frank G. Fowler, 8 Id. 3G4. The in- surers become liable after abandonment for from the scene of the loss to a port of safety: Teasdale v. Charleston Ins. Co., 3 Am. Dec. 705. After abandonment and payment by the in- surer, the insured, having parted with his inter- est, can assert no rights based ou the idea of continuing interest in the insured property: The Ocean Wave, 5 Diss. 378; The Flanter, 2 Woods, 490; Home Ins. Co. v. Western T. Co., 33 How. Pr. 107; RadcVffx. Coster, Hofifm. Ch. 93. See also late decisions discussing the rights of the insurers by virtue of subrogaiion: Merc. M. Ins. Co. V. Clark, 118 IMass. 2S8; r.'onn. F. Ins. Co. V. Erie R. R. Co., 73 N. Y. 399. Non-waiver of abandonment by insured while acting r.s agent of insurer: See note to sec. 2726. Subrogation of insurer : fcjee sujjiu iu this note, and sec. 2745. 2725. Waiver of former abandonment. Sec. 2725. If a marine insurer pays for a loss as if it were an actual total loss, he is entitled to whatever may remain of the thing insui'ed, or its proceeds or salvage, as if there had been a formal abandonment. See note to last section, the principle governing the two cases being the same, 2726. Agents of the insured become agents of the insurer. Sec 272G. Upon an abandonment, acts done in good faith by those who were agents of the insured in respect to the thing insured, subsequent to the loss, are at the risk of the insurer, and for his benefit. Abandonment as affecting acts of agents. After a valid abandonment, the acts of agents of the insured become tlie acts of the insurer: Dickey v. American Ins. Co., 20 Am. Dec. 763. And such change of agency relates Ijack to the time of loss: See the express language of the code, and 2 Parsons on Maritime Law, 421. Some cases draw a di.stiuction between bona fde and other acts of the agents of the insurer, holding that as to the former class only does this transfer of agency relate: See 2 Parsons on Maritime Law, 421; Barljer on Ins. 300. After an abandonment, which is not ac- cepted, the insured remains the quasi agent or trustee of the insurer, and must do what he thinks most for the good of those concerned. If he acts in good faith and sells the property or the vessel insured, iu the usual manner, it ia no waiver of tiie abandonment, nor will it preju- dice his claim for a total loss: Walden v. Plimnix Ins. Co. , 4 Am. Dec. 359. Generally, acts of the master after the aban- donment, consistent with the theory of ids agency for the insurers, will not invalidate the abandonment: Walden v. Plicenix In.-i. Co., 4 Am. Dec. 3o9; Waddell v. Columbia Ins. Co., 10 Johns. 61; Columbian his. Co. v. A.-^hby, 4 Pet. 1:!9; Curcier v. Philadelphia Ins. Co., 5 Serg. & E. 113. 2727. Acceptance not necessary. Sec 2727. An acceptance of an abandonment is not necessary to the rights of the insured, and is not to be presumed from the mere silence of the insurer, upon his receiving notice of abandonment. Acceptance of abandonment is not neces- sary, as the rights of the jiarties are determined by the circumstances existing when the notice of abandonment is made. Therefore the non- acceptance dues not deprive the insured uf his rights iu the premises, nor will the insurer's silence prevent his showing that no case for abandonment existed: Peile v. Merchants' Ins. Co., 3 Mason, 27, 81; Badijer v. Ocean Ins. Co. , 23 I'ick. 347. Compare with sec. 2731, infrcu 2728. Acceptance conclusive. Sec 2728. The acceptance of an abandonment, whether expressed or implied, is conclusive upon the parlies, and admits the loss and the sufficiency of the abandonment. 455 i§ '2729-2733 OBLIGATIONS. [Di v. Ill, Part IV, Acceptance admits the losa and su'fi- Ac3ept:iiice vrill be implisd from acts of eieticy (if the ;i,l);ui(loiiment: OhnccMer In,>^. Co. the iiistiret- inconsislciit with any ol.liei- poM'tiyn V. Yoiinj abandonment of ship. Sec. 2730. On an accepted abandonment of a ship, freightage earned pre- vious to the loss belongs to the insurer thereof; but freightage subsequently- earned belongs to the insurer of the ship. Freiglitnge how affected by abandon- 307; a very complete discussion of the effect of ment. — This section is drawn from the early de- abandonment iqjon t!ie right to freiglita ,'e is cisionof United Im. Go. v. Lenox; 1 Johns. Cas. given in 2 Phillips on Ins., 5th ed., sees. 1737 377, 2 Id. 443, which is now generally adopted et seq., where the English view, not approvinj^ as the rule to be applied in tins country: the apportionment rule of this country, is ex- Bvffalo City Bank v. N. W. /i»f. Co., 30 N. Y. amined. 251; Leavenworth v. Delafield, 1 Cai. 573; Si- Abandonmeatof freightage : See sec. 2017, rnondts v. Union Ins. Co., 1 Wash. 443; subd. 4, and note, Kejintdy v. Baltimore Ins. Co., 3 Har. & J. 2731. liifiiHol to accept. Sec. 2731. If an insurer refuses to accept a valid abandonment, he is liable as upon an actual total loss, deducting from the amount any proceeds of the thing insured which may have come to the hands of the iusui'ed. Acceptance not presumed from silence: Sec. 2727. 2732. Omission to abandon. Sec. 2732. If a person insured omits to abandon, lie may nevertheless recover his actual loss. AETICLE IX. MEASURE OF INDEMNTTr. 2736. Valuation, when conclusive. Sec. 2736. A valuation in a policy of 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, befoi-e its insurance, and without the knowledge of the person actually i^rocuring the insurance, he may show the real value. But a valuation fraudulent in fact entitles the insurer to rescind the contract. Valued policies: See ante, sec. 2593. As Sumn. 451; TToiuland v. 7«s. Co., 2 Cranoh a general proposition, it is true that the value C. 0. 471; Akin v. Mi'fs. M. it I''. Int. Co., i agreed upon in policies of insurance is conclu- Mart., N. S., 6G1; Griswold v. Union etc. Ins. Bive upon the parties if there be no fraud, Co., 3 B'ttchf. 2.-5I. actual or presumptive, and tliis although it Valued policy on freightage or cargo: may greatly exceed the real value : Phanix See sec. 27-il), infra. Jns. Co. V. McLoon, 100 Mass. 475; Sturm v. Valuation of profi':s: See see. 2740. Atlantic etc. Inn. Co., G Jones & 8. 281; S. C, Valued policy of fire insurance: See sec 63 N. Y. 77; Alsop v. Commercial Im. Co., 1 275l>, 2'Oiit. 2737. Partial loss. Sec 2737. A marine insurer is liable upon a p.artial loss, only for such pro- portion of the amount insured by him as the loss bears to the value of the whole interest of the insured in the property insured. Compare with section 2756, stating the measure of indemnity in case of lire insurance. 2733. Profits. Sec 2738. "Where profits are separately insui-ed in a contmct of luarine insurance, the insured is entitled to recover, in case of loss, a proportion of 45G Title XI, Cuap. tl.] MARINE INSURANCE. §§ 2739-2742 8uch profits equivalent to the proportion which the value of the property lost bears to the value of the whole. Profite: Loomis v. Shaw, 2 Johns. Cas. 30; see iit/ra, sec. 2740; see note to repealed section 2710. 2739. Valuation apportioned. Sec. 2739. In case of a valued polic}' of marine insurance on freightage or cargo, if a part only of the subject is exposed to risk, the valuation apjjlies only in proportion to such part. 2740. Vrlualion applied to profits. Sec 2740. "When profits are valued and insured by a contract of marine insurance, a loss of them is conclusively presumed from a loss of the property out of which they were expected to arise, and the valuation fixes their amount. Harmonizes with section 2738. 2741. £sfimaling loss under an open policy. Sec 2741. In estimating a loss under an open policy of marine insurance, the following rules are to be observed: 1. The value of a ship is its value at the 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 tbat cost cannot be ascertained, its market value at the time and place of lading, adding the charges incurred in pux'chasing and placing it on board, but without reference to any losses incurred in i*aising money for its purchase, or to any drawback on its exportation, or to the fluctuations of the market at the port of destination, or to expenses incurred on the way or on arrival; 3. The value of freightage is the gross freightage, exclusive of primage, without reference to the cost of earning it; and, 4. The cost of insurance is in each case to be added to the value thus estimated. Est'.mating loss under open policy. — The purchase:' 0eon .'!0 long cstablisiied, its justice might P^^rtial loss of ship, one third new for old: be fjm stioiicd: See Cojfin v. Neicburi/porl ///s. Sec. 274G. Co., 9 Mass. 43.;. 'Adding charges incurred Mr. Barber, Ins., see. 134, comments upon in placing it on board:' See Leroy v. Lfuit'd some of the clauses of this section, and com- Ins. C>>., 7 .loans. 343; Stevens v. Columbian pares them with the Code dc Commerce and Ins. Co., .'i Cai. '1.). ' But without reference to with the law of England, any losses incurred in raising money for its 2742. Arrival of thing damaged. Sec. 2742. If cargo insured against partial loss arrives at the port of destina- tion in a damaged condition, the loss of the insured is deemed to be the same p'-jportion of the value which the njarkct price at that port, of the thing so damaged, boars to the market price it would have brought if sound. Pai-tiol los.s of cargo, insurer's liability is damaged condition bears to the value of the Bueh proportion of the valuation of the cargo cargo not dainagetl: Law re we \. N. Y. Ins. Co., named in the policy, or estimated as spceiiietl 3 Johns. Cas. 217; Lamar Ins. Co. v. Ale- in section 2741, as the value of the cargo in its GUi'ihen, 54 111. 513. 437 §§ 2743-2746 OBLIGATIONS. [Div. Ill, Tart IV, 2743. Labor and expenaes. Sec. 2743. A marine insurer is liable for all the expense attendant upon a loss which forces the ship into port to be repaired; and where it is agreed that the insured may labor for the recovery of the property, the insurer is liable for the expense incurred thereby, such expense, iu either case, being in addition to a total loss, if that afterwards occurs. Suing and laboring clause. — Expenses re- insured against; in such case the loss was pay- coverable umler tliis clause: See Watnon v. able under tlie insuring clause only. This de- ilariue Iiut. Co., 7 Johns. .'37; Mn'jrat/i v. cision is criticised, and not foUoweil, hy the Church, 1 Cai. 21G; Cory v. BoyUlon In-'^. Co., Massachusetts supreme court in McUhexoJi v. 107 Mass. 140. In Alexander v. Sim Matud E'lnUa'de Marine Ins. Co., IIS Mass. 20d. See, Ins. Co., 51 N. Y. 233, the court would not further, 3 Kent's Com., 12th ed., *3t0, note 1; allow, under tiiis clause, a recovery of expenses Barher on Ins., sec. 15G; and Lowndes' General incurred in repairing the vessel at an inter- Average, 230 et seq. mediate port for damage occasioned by perils 2744. General average. Sec. 2744. A marine insurer is liable for a loss falling upon the insured, through a contribution in respect to the thing insured, required to be made by him towards a general-average loss called for by a peril insured against. Insurer's liability for general average: See thi?, the American doctrine, in his work on gen- Jutnel V. Marine Ins. Co., 7 Johns. 412; ]Vrtt- eral average, 233 et seq. son V. 2Inrine Ins. Co., Id. .57; Maj:/ratk v. Gaaaral average generally: See sees. 2152 Church, 1 CaL 19G; and Lowndes's discussion of et seq. 2745. Contribution, subrogation of insurer. Sec. 2745. Where a person insured by a contract of marine insurance has a demand against others for contribution, he may claim the whole loss from the insurer, subrogating him to his own right to contribution. But no such claim can be made upon the insurer after the separation of the interests liable to con- tribution, nor when the insured, having the right and opportunity to enforce contribution from others, has neglected or waived the exercise of that right. [Amendme^il, approved March 30, 1874; Amendments 1873-4, 259; took ejfect July 1, 1874.] Subrogation of insurer: See sec. 272 1. "Without the qualification contained in the Seethe note to last section. The last sen- amendment the subrogation would be worthless, tence in the above was added at the racom- and serijus injury would be inHicted upon the mendatioa of tlie code examiners, who said: insurer." 2746. One third new for old. Sec. 2746. In the case of a partial loss of a ship or its equipments, the old materials are to be applied towards payment for the new, and whether the ship is new or old, a marine insurer is liable for only two thirds of the remaining cost of the repairs, except that he must pay for anchors and cannon in full, and for sheathing metal at a depreciation of only two and one half per cent for each month that it has been fastened to the ship. One third ne'wr for old. The following plain cordingly the assured must himself bear one reason for tliis rule is given in 2 Phillips on Ins. third part of the expense of the labor and 1431, at which place and in the succeeding materials for the repairs, and this deduction ia pages the sul)jcct of the aljove section is fully said to l)e on account of ' new for o'd,' the in- discussed: " Where timbers or other materials surers being liable for only two thirds of the are replaced by new, the vessel when repaired cost of the labor and materials." is considered to be better than before, and ac- 45a 2T56. Measure of Indemnity. If there is no valuation in the policy, the measure of indemnity in an insurance against flre is the expense [it would be to the insured at the time of the commencement of the fire to replace] the thing lost or injured in the condition in which it was at the time of the injury; but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine msur- ance (In effect from and after April 15, 1909. Stats. 1909. Chap. 604.) Civ. code, 1909. Title XI, Cu^r. III.] FIRE IXSURAXCE. §§ 2753-2756 CHAPTEIi III. FIRE INSURANCE. Section 2752 was repealed by act approved Marcli liO, 1S74; aiiieiulaieuts 1873-4, 239; tuok effect July 1, 1S74. The original section, which read as follows: "An iiisiir;'nce against tire is not affected hy concealment, nor by the falaity of a repre eentation not inserted in the policy*, thougii in a material particular, unless made with a fraudulent intent," was re[jealed at the sug- gestion of the code examiners, who passed this severe criticism upon it: " Tlie section re- pealed is unjust, oppressive, and contrary to public policy. It is alsD inconsistent with the provisions of Sections 25G2 and 2oG3." 2753. Alteration increasing rit;k. Sec. 2753. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, made without the consent of the insurer, by means wi'chin the control of the insured, and increasing' the risk, entitles an insurer to rescind a contract of fire insurance. Alteration iucreasiug risk. — Wliere the policy is silent upon the subject, an alteration in tiie use or condition of the premises insured must, as a general rule, materially increase the risk in order to render the contract voidable: JoHfs Mfg. Co. V. Manufacturers' Mut. Ins. Co., 8 Cush. 83; Wood v. ilartjord F. Ins. Co., 13 Conn. 5.")3; SewlcaU v. Union etc. Ins. Co., .52 Me. ISO. But as the rights of the parties are controlled by the terms of their con- tract, if that stipulates against the use of the premises for certain purposes, or tiie keeping of stipulated articles thereon, the violation of this agreement is not tested by the effect U[ion the risk. It makes no difierence wlicthcr the risk is increased or not: Appleby V. Fireman's Ins. Co., 43 Barb. 454; Appleby w. Asior F. Inr.. Co., 54 N. Y. 253; U'eHtfall v. Hudson River F. Lis. Co., 12 Id. 2S9; U'ash- in'j'on F. Ins. Co. v. Davidson, 30 Md. 01; McK ombcr v. Howard F. Ins. Co., 7 Gray, 237. The insurer has made this change material, and the fact that the loss was not occasioned by such breack of the contract makes no difference: Jones Mfrj. Co. v. Manvfactnrers' Mut. Inn. Co., supra; Grant v. Howard Ins. Co., 5 Hill, 10; Jffevson Ins. Co. v. Cotlieal, 7 Wend. 72. See next section; compare with sec. 2011, ante; and for a complete discussion of tlie subject, see Wood on Fire Ins., sees. 220 et seq. The clause in the policy providing that a change increasing the risk shall avoid the same if made without tlie consent of the insurer refers to a change produced by the act of the insured, and not to one occasioned by accident, or by a cause over which the insured liad no control: Urenner v. Insurance Co., 51 Cal. 101. See late California cases in regard to the alteration or increasing the risk vitiating the policy: Glidding v. Inn. Ass'n, 4 West Coast Rep. lOG; Tischler v. Cal. Farmers' Mut. Ins. Co., Id. 535. Keeping hazardous artdoles: See a collec- tion of decisions by the editors of the Insurance Law Journal, vol. 8, p. 437; see also Dennery v. Home Ins. Co., 44 Cal. 320, for a breach of the condition against permitting the use of kerosene oiL 2754. Alteration not increasing risk. Sec. 2754. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance. Alteration not inoreasing risk.— The phraseology of this section is somewhat ambig- uous. " Limited " cannot mean "stipulated," in the sense that if the policy sti[)ulate3 for tiio use of tlie premises in a particular way and against any other use, a violation of this stipu- lation will not affect the contract unless the violation increases the lisk. The extent of the alteration in such case is not material, as it is sliown in the note to the preceding section. Probably "limited " is to be taken as a term of description merely. 2755. Act.'i of the insured. Sec. 2755. A contract of fire insurance is not affected by any act of the insured subsequent to the execution of the polic}', which does not violate its provisions, even though it increases the risk and is the cause of a loss. 2756. Measure of indemnity . Sec 275G. If there is no valuation in the policy, the measure of indemnity in an insurance against fire is the expense, at the time that the loss is payable, of replacing the thing lost or injured in the condition in which it was at the time of the injury; but the effect of a valuation in a policy of fire iusuruuce ia the same as in a policy of maiine insurance. 459 §§ 2762, 2703 OBLIGATIONS. [Div. Ill, Part IV, Measure of indemnity.— "When there is no valuation, llie loss is estimated to be the ex- pense of placing the thing injured in the con- dition it was at the time of the injury: .See Nihlo V. KorLli Am. Ins. Co., 1 Sandf. 551; but a valuation has the like effect as in a marine iusurance; tliat is to say, a valuation in a lire policj', as well as in a marine insurance, is con- clusive: llarr'ix v. Enjle Ins. Co., 5 Jolms. :^j8; llolmts V. Cliurlesloujii Ina. Co., 10 Met. 211. Though this rule has been sometimes disap- proved, no change has been made in it. It ia deemed just and reasonable to let it stand:" Commissioners' note. Valued policy in marine insuranoe: See ante. sec. '2~?,Q. For a d3finltion of total lo33 of a building by lire, see IViUiams v. II; TIiomp:rt: Lird V. Da'l, 12 Mass. I 15; S. C, 7 Am. Uej. 3S, in the note to wlach this subject is di-icussel. Buta brother, assiicli, in the life of a brother: Lewis v. Phcenix JIni. Life Ins. Co., .3D Conn. 103; or an ur.cle in the life of his nephew: Siixjleton v. Si. Lonis JIut. Ins. Co., G.j Ml. (53 — lias no insurable interest. GTod. 3. Debtor and creditor, et3. — A creditor has an insurable interest ia the life of his »'i,v v. Co7m. Mid. J.. /. Co., Insurable interest generally: See sees. 2,] Conn. 2U; Trenton Mut. L. cfc F. I. Co. v. 2340 et SL(i. John>r, 3 Scott, 59 (libel); Pierson v. Thompson, 1 Edw. Ch. 212 (assault and battery); Ilayden V. Davis, 3 McLean, 276 (void bank note). In Cumpston v. Lambert, the court said, referring to the case of Coventry v. Barton, 17 Johns, 144, S. C, 8 Am. Dec. 376: "That case differs from the present one in this, that it was a tres- pass to property, whereas this was a direct assault on the person; that was a case where the person committing it, at the time, was en- gaged in doing what he was told to do, to wit, work on the road under tlie ('irection of the overseer, who was supposed to know what was to be done, and who for the time being had the right to control his labor. • » * We have seen no case where it has been held that a con- tract to do[)rive a person of his liberty, in the first instance, or to commit an actual assault on the person, where such arrest or assault was illegal, has been held to be binding." And see Columbia Bank etc. v. Haldcrman, 42 Am. Dec. 229. and note (conUary to statute). In violation of sheriff^s diify, if the act in- demnified against is, the bond is void: Ilodsdon v.lVilkins.j Greenl. I \S (precipe); Collier v. Windham, 27 Ala. 291 (execution); Greemoood V. Colcock, 2 Bay, 67 (execution); Renfro v. Heard, Id. 23 (selling exempt property); Chapman v. Douglas, 5 Daly, 244 (seizing goods conceded to belong to third person); Biiffendeau v. Brooks, 20 Cal. 691 (selling in violation of injunction ordered); Ayer v. Hutch- ins, 4 Mass. 370 (escape); Churchill v. Perkins, 5 Id. 54 (discharge of prisoner); Webbers v. Blount, 19 Wend. 188 (Id). Levy execution — Title doubtfuL — It ia settled beyond question that when a sheriff, being about to levy on goods the title to which is doubtful, takes a bond from the execution debtor to indemnify him from the consequences of the act, the bond is valid: Wolfe v. McClure, 79 111. 504; Anderson v. Farns, 7 Blackf. 343; Moore v. Allen, 25 Miss. 363; Flint v. Yoimg, 70 Mo. 221; Heinmidler v. Gray, 44 How. Pr. 260; Preston v. Yates, 24 Hun, 534; Miller v. Rhoades, 20 Ohio St, 494; Loew v. Stocker, 68 Pa. St. 226; Dabney v. Catletl, 12 Leigh, 385. 2774. Indemnity for a past wrongful act valid. Sec. 2774. An agreement to indemnify a person against an act already done is valid, even though the act was known to be wrongful, unless it was a felony. Employer and employee — The implied contract or liability of the employer to answer for injuries to his employee, occurring in his service from extraordinary and unusual causes of which the employer was cognizant, and of which, nevertheless, he neglected to inform his employee, is not affected by the fact that the danger known to the employer arises from the felonious or tortious designs of third persons, acting ill hostility to the employer: Baxter v. Roberts, 44 Cal. 188. Negligence of sheriff. — If in an action by A. against B. the officer, although directed to attach only specific property of B., attaches goods of C, and A., then knowing tliat C. claimed somo of the goods, gives the officer a bond of indemnity against all suits, etc., "by reason of the said attachment," A. becomes liable for a subsequent conversion of the goods by a sale by the officer: Knight v. Nelson, 117 Mass. 4.J8; see Hall v. Iluntoon, 17 Vt. 244 (sheriff's past neglect); Griffiths v. Harden- bergh, 41 N. Y. 464 (levy); Given v. Driggs, 1 Cai. (Kent, J.) 450 (escape); Doty v. Wilson, 14 Johns. 378; Id, Undertaking illegally exacted — An un- dertaking exacted by a sheriff before releasing property which he has ascertained to be exempt from execution is illegal, as beyond tlie author- ity of the sheriff, and void for want of considera- tion: Servanti v. Lusk, 43 Cal, 238. 2775. Indemnity extends to acts of agents. Sec. 2775. An agreement to indemnify against the acts of a certain person applies not only to his acts and their consequences, but also to those of hia agents. 2776. Indemnity to several. Sec. 277G. An agreement to indemnify several i)ersons applies to each . unless a contrary intention appears. 463 §§ 2777, 2773 OBLIGATIONS. [Div. Ill, Part IV, 2777. Prn^ons; indcmnif\jmg liahh' joi»fhj or sr-vcrnVy with p.'.rson iiidi'mnififid. Sec. 2777. One who indemnities anolber af;-ainst au act to bo done by tlie latter is liable jointly'' with the persou indemuiiied, and separately to every person injnred by such act. Sec note to sec. 1I77-, awte, and Lewis v. Joh'is, 31 Cal. G20. 2778. Unit's for interpreting agreement of indemnity. Sec. 2778. In the interpretation of a contract of indemnity, the folloTvii g rules are to be aj? plied, unless a contrary intention appears: 1. Uj)ou an indemnity against liability, expressly, or in other equivalent terns, the porson indemuiiied is entitled to recover upon becoming liable; 2. Uj^on 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 incurred in good faith and in the exercise of a reasonable discretion; 4. The person indemnifj-ing is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity; but the persou indemnified has the right to conduct such defenses if he chooses to do so; 5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter, suffered by him in good faith, is con- clusive in his favor against the former; 6. If the person indemnifying, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defense, judgment against the latter is only presumptive evidence against the former; 7. A stipulation that a judgment against the ])erson indemnified shall be con- clusive upon the person indemnif^-ing is inapplicable if he had a gooil defense upon the merits, which, by want of ordinary care, he failed to establish in the action. Subd. 1. Indemnity against liability.— for the breach thereof. Thits, for example, a When a covenant is m ule to indemnify ai^amst contract to pay a debt, or to disuliarje a liabil- a debt or duty wiiich may accrue in the future, ity then exi.-sting, no tune being specified, is a a liability to suit is a bre.ich, and recovery may promise to pay it when due; or if a'leady ilue, be had to t'le extent of the debt or duty to then to i)ay it immediately, or wilirn reasoa- which tlie indemnitv applies; /?<6''r/.s'0/< V. J/o;-- able time: Furiiafi v. Duijia, W.) Miss. 500; gnu's Ad in' r,;'} L>. Mo:i. 307; Chare v. //hunan, La/hrop v. A/wood, 21 Conn. 117; ir/Y.-o/t v. 8 Wend. 4r,l; nor'jrfrllrr v. Cono hj, S Cow. GJ;J. Slilhc'll, 9 Ohio St. 4GS; GUbi-rl v. Wnnuii, 1 N. Sam3 %vb3u judsmant is rea:;h3d. — Dam- Y. .T/O. ages may be recovered as ascertained l)y a judg- I)riinaje.t7; Xntt tion arose tlie monient judgment was entered: v. Merr'i/I, 40 Mo. 237; //«'/ v. AVwA, 10 Mich. Mr/lefhv. .lA7;//;//r, 57 Cai. 40. 303; Krlcham v. Jnuneei/, 111 Conn. 123; Mer- ■WIier3 tli3 coii:Ta:;t is more thaa for riun v. Pine City L. Co., 23 .Minn. 311; Gage indemnity ajaiiist damagsa, or even lial.il- v. Lowl't, 03 III. G04; Gonkey v. Ilnphin^, 17 ity for damages, as wliere a party stipulates, Jolun. 113. The amount of the debt agrectl to not only agaiu.it tile ii d)ility of the obligee, but be paid is not the measure of damages if the also to pay tlie d jbt. Chun-hili v. Una', 3 Deuio, promisee is not liable for the debt assnmt;d, and 321, then actual damages are not the gist of the will neither be benelited by the pivment nor in- action, and the value of performance of t!ie con- j ire 1 i)y tlie non-payment of it: //a.'.s"// v. Heed, ix&G'i will constitute the measure of damages Pai^e, 44J; Trotter v. Uajkes, 12 N, Y. 7'4. 404 Title XII.] INDEMNITY. §§ 2779, 2780 Subd. 2, Agreement to save harmlsss. In other words, actual damages incurred arc the gist of au actiDU ou an express contract of indemiirty against, or to " save liarmless fi-oin," da.in;ig«s; but a t^covery may be had for the actual damages sustaineil at a^y time before the trial, anil the total ilaniages increased thereby: O.-i/ood v. O-^jood, '^d N. 11. 209? An- thovy V. Pi'rcif(d, 8 Ark. 491; Bcynlon v. Twitty, 53 Ca. 214; Daij v. Slkknen, 14 Allt'ii, 2o»; ii'itkerbi/ v, Mann, 11 Johns. 5iS; ChUd V. Eiirehu, Poirdir Worhs^ 44 N. H. 854. See next note; aud see WIUaou v. McEv'iy, 2.j Cal. 109; an.l Lott v. MitdioU, 32 Id. 2.3. Subd. 3. Costs of groundleis suit. — Wlrea tlie indemnity is general against the costs and expenses of a certain act, it extends to the costs of defending a grouuilless suit for tlie act, in which the indenmitied party suc- ceeded: Trtistfcs of Ncic!>ur(jh v. Galitian. 4 Cow. 340; Ci'iamb^rlaiiiv. Bcller, 18N. Y. 115;. Chil'On V. Doiviifr, 27 Vt. 53G. Expenses v^ithia scope of asreemeat. — And when the indemnified party, for the caase indemnified against, is subjected to service or trouMe, or incurs any expense within the scope of the agreement, lie may recover damages for the same: Xult v. Merrill, 40 Me. 237; Jnrvi.'! V. Scwall, 40 Barb. 449; French v. Parish, 14 N. H. 407; Mott v. nklc^, 1 Cow. 513; Trustees vf Newhtir'jh v. Galatian, 4 Cow. IMO. But see .Scott v. Tijir, 14 Barb. 202; seel Suth- erhind on Damages, 134; 2 Id. 003. Lo3S of property. — When, by breach of the agreement to iudenuiify, the p'art}- indemniiicd loses i>roiierty, its value will form a portion of the recos'erabic damages: Sander,^ y. J/cimilton, 21iay\v. (N.C.)45S; Acl:''r7iiauv. /w/;,7, 29Tex. 291; Cramp v. Pirkliii, 1 Putt. & H. 201. Counsel fees. — " Upon statutory bonds and undertakings to pay damages and costs, the re- covery 5. Strict compliance with the terms of this section (Code Civ. Proc., sec. 1055), is nec- essary in order that tlie slicriff may have judg-. ment entered against such sureties upon tlv'** days' notice, as in this section pi-ovided; ^vn- iih V. Packard, 28 Cal. 101; and see Mu(U v. Parheco, 21 Id. 4.38. Subd. 6. ilf the sberiU nsglects^.to. gJ7«; written notice, as prescribed in Sct-tiba 1055 of tlie Code of Civil Proceciare^'hc is left to Ida action upon the iu'do^niiity bond: JJenitis y. Packord, 28 Cal, 102.' ** Want of aotiDe-doesnot?.ff3Ctthe caus9 of action; it affects only the value of the judgment as evidence. Thus where the iu- deninified party has paid the damages result- ing from a suit, wiih regard to which he has conveyed no notice to deiend to his indemnitor^' and then brings suit on the contract of itulfm-/ nity, the question of tlie liability of the ijidem-! nitied party to make such payment is .slil^, open in the latter suit. In the a,bs!nce of notice, the judgment is prima fct^ie evi lence. only against the indemnitor, jvjd he is at liberty to defend against the deniiiiid on which it is founded: Doii'/iiss v. /lowland, 21 Wend. ' 35; Aberdeeiiv. Blackmar,G HiW, S-24; Bridc/e- porl In^. Co. V. Wilson, 34 N. Y. 275; Ur-iiqio V. Bragjiotti, ' Cnsh. IGG; Mariab't v. CI ry, 20 Ark. 251; CoUimjK-ood v. Irwin, 3 Watts, 300; Pitkin v. Lrarltt, 13 \^t. S7U; Tnylor v. Barnes, 09 N. Y. 4.30. Subd. 7. Agreement that judgment against party indemnified shall be con- clusive.— Tiiat witliout collusion such con- tract is bimling, see PaHon v. Ciddwnll. 1 DalL 419; Thomns v. IJublx-Il, 15 N, Y. 405; Cham- berlain v. Godfrey, 3G Yt. 380. In all covenants to indemnify against tho consequences of a suit, "the indemiiitor is of course understood as saving the rigiit widch the law gives in every case where the suit is betwten third persons, of contesting tlio pro- ceeding on the ground of collusion for tht- pur- pose of charging him:" per Smitii, .J., in Bridiieport Ins. Co. v. Wibon, 34 N. Y. 2S1„ citing opinion of Co wen, J., in Douyltss v. I/oir/and, 24 Wend. 35, Surety. — The sauie rulea in respect to no- tice which apply to the indemnitor are ap- plicable to his surety in like cases: Id. 2779. Wh''ii person indemnifying is a surety. Sec. 2770. Where one, at the request of another, eng-ages to an.swcr in damages, whether liquidated or unliquidated, for any violation of duty ou tho part of the latter, he is entitled to be reimbursed in the same manner as a surety for whatever he may pay. "Manifestly just, and arises from the nature of the agreement any. CoNTiNtJiNQ Guaranty 2814 lYL Exoneration of Guarantors^. .^ ., ».^ 2819 ARTICLE I. DEFINITION OF O0AKANTT. 12787. Guaranty, what. Sec. 2787. A guaranty is a promise to answer for the debt, default, or mis- ^ carriage of another person. Stats. 1850, 266, sec. 12. come a surety. The intention was, by such Says Parsons, Parsons on Cont., vol. 2, p. 3: statutes, to remove her disabilities for her in- "Origiually the words 'warranty'and 'guaranty' terest, and not to enable her to contract oner- were the same; the letter 'g'of the Norman ous obligations fron\ which she derived no 'French bt-ing convertible with the ' w ' of the benefit." ■ German and English, as in the names William Infants may ratify such a contract in the ' or Guillaume. They are now sometimes used usual way: Owen v. Lomj, 112 Mass. 403; Hin- indiscriminately; but in general, warranty is ely v. Marqaritz, 3 Pa. St. 42S; Fetrow v. applied to a contract as to the title, quality, or Wiseman, 40 Ind. LiS. ' quantity of a thing sold, and guaranty is held Railroad company. — Where, under the laws to be a contract by which one person is bound of Iowa, a railroad company iiad power to is- to another for the due fulfillment of a promise sue its own bonds to pay for the construction or entragemeut of a third party:" See Brown of its road, it was held it might guarantee the ■ on the Statute of Frauds, sec. 155. bonds of cities and counties which had been "Who may make a guaranty. — Married lawfully issued, and were the means of accom- wom£n. — Upon the authority of Alhol Machine, plishiug the same eud: R'tilroad Oo. v. /{award, - Co. V. Fuller, 107 Mass. 437; West v. Laraway, 7 Wall. 392; and see Arnot v. Erie R. R. Co., 28 Mich. 464; DeVries v. Conklin, 22 Mich. 5 Hun, 608. A railroad corporation or manu- 255, Mr. Brandt, Suretyship ami Guaranty, facturing company, in Massachusetts, cannot sec. 4, says: "In many states, by statute, a give a guaranty of payment of expenses of a married woman may hold, manage, and con- proposed musical festival: Davis v. Old Colony tract with reference to her separate property R. Co., 131 Mass. 256. In general, such con- the same as if she was unmarried. She can- tracts are ultra vires: See Jones on Railroad - not, however, by virtue of such a statute, be- Securities, sees. 350-356. 2788. Knowledge of principal not necessarrj to creation of guaranty. Sec, 2788. A person may become guarantor even -without the knowledge or consent of the principal. 466 Title XIII, Ciiap. I.] GUARANTY IX GENEP.AL. §§ 2702-2794 ARTICLE II. CREATION OF GUARANTY. SISQ. Nrcessihj of a consideration. Sec. 2792. "Where a guaranty is entered into at the same time with the origi- nal obligation, or with the acceptance of the latter by the guai'antee, and forms •with that obligation a j^art of the consideration to him, no other considera- iou need exist. In all other cases there must be a consideration distinct from that of the original obligation. Consideration of guaranty: "See MalJorii V. (Jiih'/i, 12 N. Y. 41'2. The person to wlioin a guaranty is made is here called the guarantee. Tins ii llio proper legal meaning of the word: S'.'0 l>ouv. Uict., also Webster and Woi-eester, altliougli it is often used in another sense: " Commissioners' note. Examples of guaranty entered into at the same time with the principal obli^^ation, being 8U| ported by the consideration of tlic latter, sec Jones v. Fosi, 6 Cal. 102; llazdtine v. Larco, 7 Id 3i>. The consideration need not pass directly from the party receiving the guaranty to the ])arty givi: g iL: 2 Parsons on Contracts, 7; Birl:/ord V. GiOlis, 8 Cash. 15G; Leonard v. Vredenburi/k, 8 Johns. 'IV; Morly v. Dootldy, 3 Ling. IK); Wt.ls \. Mnnn, 45 N. Y. 327; Colijin v. Hen- ley. (J Leigh, 85. IJevj- and distinct consideration. — If, r.f tcr the original consideration has moved be- An agreement on the part of the creditor to extend the time of payment of the principaTs obiigatioii for a d'iliiiite period is a suui'.tieiit consideration, the delay u.iually operat..jg both as a beaolit to the [)rincipal and a detri.nent to the creditor: Fuller v. ScoU, 8 Kan. 25; Un- dencood v. I/oxsack, ;'.8 111. 208; Fullkim v. ]Vithers, 8 Dana, 93; Hw/e v. Wilrox, G Conn. 81 ; or lor a reasonable time: Lon^dde v. Broicn, 4 Wasli. 14S. And even an agreement for mcie general indulgence, combined with actual f.ir- bearance fur a reasonable time, is suliieient: Thomas v. Croft, 44 Am. Doc. 279; Etiliri v. l'aiid''r/y,i, 4 Johns. 2.'?7; Uuwlett v. Ewbn.ik, 1 lia.sh, 477. Withdrawal of a suit is snlH- cient: Wora'sier Savings Bank v. J Jill, 113 Mass. 25. Agrcemfitf, necessary. — Mere forbearfincf, without any agreement, and with the riglit of the creditor to proceed wit!> suit at any mo- ment, and at pleasure, is not suiheient. Thero twctn tiie creditor and principal, tiie surety or must be a promise for a promise: Shupe v. d'al- guarantor .signs upon a new consideration, mov- braitli, ?>'2 Pa. St. 10; IValker v. Hhernvui, II ing f.om tlie creditor to the principal, this is j\Iet. 170; Meairvey v. Suinley, 8 Cusli. 85; suliieient: Guy v. 3Inll, 43 Ga. 252. Breed v. Hdlhoune, 7 Conn. 523. Forbearance a sulQcient consideration. 2703. Gaarnnty to he in luriting, etc. Sec. 2793. Except as prescribed by writing, and signed by the guarantor; sideration. Consideration of guaranty. — "A familiar provision of our statutes nuuie every special pron;ise to answer for tlie debt, defaidt, or iniscariiago of anotlier person void, unless 'some note or memorandum thereof expressing the consideration be in writing,' etc.: Stats. 1850, p. 2oG. The commissioners have inserted in the text an express provision that tlie v.Tit- ing need not express a consideration, because by the section immediately prcceling an actual consider;! tion is necessary to support a guaranty ill some cases, while in others none is required. It has be :n held hy the court of appeals of New Yorlc that a contract rtquircd by the Btatute ot frauds to be in writing cannot be partly hi wr'iting and partly oral; thus, where a writing relating to a contract for the sale of the next ssctlon, a guaranty musu be in but the writing need not express a con- land fixen the price, but refers to ' terms as specified,' which are not stated in writing, t!ie memorandum is iusuliicieut, and cannot bo made good by oral eviilence of the time agreed upon for payment: Wriijiit v. WeeLt, 25 N. Y. 153. If, tlierefore, the section in text should simply omit the former provision of the statute requii'iug the consideration to be stated, ib might be exjiosed to the constructicm that in all those ca-jcs in which the consideration is made by the previous section essential to tho contract, it must be stated in reducing the contract to writing. In England the statute (19 & 20 Vict., c. 97, sec. 3) enables a party to prove the consideration of a guaranty by parol. ^-0 in Maine: R. S. G31. See note to sec. 1739:" Commissioners' note. 2794. Engagement to answer for obligation of another, when deemed original. Sec. 2794. A promise to answer for the obligation 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 pursuant to such promise; or by one who hag received a discharge from an obligation in whole or in part, iu consideration of such promise; 467 §2704 o:dliGxVTIoxs. [Drv. Ill, Takt IV, 2. "WTierc the creditor parts ^vith Vcalue, or enters into an obligation, in con- eideratiou of the obligation in respect to wliicli tlio promiHe is made, in tonus or under circumstances sucli as to render the party making the promise the principal debtor, and the person in whose behalf ib is made, his surety; 3. AVhere the promise, being for an antecedent obligation of another, is made UT)on the consideration tliat the party receiving it cancels the antecedent obli- gation, accepting the new proniise as a substitute therefor; or upon the consid- eration that the party receiving it releases the property of another from a levy, or his person from impi-isonment under an execution on a judgment obtained tapon the antecedent obligation; or upon a consideration beneficial to the prom- isor, whether moving from either party to the antecedent obligation, or from another person; 4. Where a factor undertakes, for a commission, to sell merchandise and guarantee 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 prece- dent debt of bis own, or for a new consideration, and in connection with such transfer enters into a promise respecting such instrument. Promise to debtor himself to pay or to the promise is not within the statute. As funiisli him the means of paying his own debt is, of course, nut within the statute: Ifuboti v. I'ark, IIG Mass. 5U; Coetz v. Toos, 14 Mian. 235; Whi'rscll v. ll.iwy, 58 Inl. lOS; C:>m- stock V. Morton, 3G Midi. 277; JlumlaU v. h'fl- ney, 48 Vt. 157; Pratt v. Bate^, 40 Mich. 37; O.lphaid V. Patlfr.son, 50 Pa. St. 368; and see aradwM V. //arris, 29 Cal. 150. But that th.'i one ia -wiiose favor tha promise is made (i. e., the creditor) may sus- tain an action against tlie promisor even u^jon a parol contract, and altliough he is a straii jor to t!ie consi'leration, is the geno .ally accepted Anieiican doctrine: See note to Barkery. Buck- I'll), 43 Am. Dec. 730. Tliis question is of coarse settled in this state by scciion 1550, ante, and by section 3'J7, Code of Civil Procedure, wliicli when a debtor gave to his creditor the note of a third i>erson for the same amount as the debt, and guaranteed the payment of tlie note: SuIkI. 5, po^l; Dyer v. O.hxon, IG Wis. SOS; soo Browne Stat. Frauds, sec. IG"). To tiie same effect, s;;e B irker v. Scudder, 53 Mo. 272; /lall v. Bod'jem, 7 Humph. 53G; Fowler Cleanoatcr, 35 Barb. 143; Durham v. Maiirow, 2 N. Y. 5;;3; Adcock v. I'^leminrj, 2 Dov. & P.. L. 225; Birker v. Scud Icr, 5G j\Io. 272; .1/ bUe u>ison V. Knapr), 33 Iowa, 010; J/n on v. /lall, 39 Ala. 509; MUch-ll v. Griffin, '^S Ind. 550; sec, as bearing on this subject, Swalman V. /\irk-r. 40 Miss. 10; //arris v. Yonnn, 40 Ga. 03; Meyi'r v. //.trlniai, 11 111. 442; Ba- chan in v. i^adclford, 4.) Vt. 04; Baliiet v. Scott, 32 \Vi3. 171. Gab J. 2. ProTTi'iort'aopriaorDaldobior. Tiaij clause embraces the comuioa case of goods 403 Title XIII, Chap. I.] GUARANTY IN GSNERAL. §2794 sold ami delivered, or services rendered, for the benefit of one at tiie request, prouiisu, and upon the credit of anotlicr. And t!io books and e:iscs ad concur in stating tlic rule that tiio credit of tlie tia;isaction must be given wholly (.0 the promisor, anil if any cradit at all l)e given to the ih V [ I'arty, Vac defendant's promise is re- quired to be in wri^iii^; as collaccral: Btoune Stat. Frauds, aec. \'J~ ; Brandt Guar. & Sar., Prtrhe.r v. Tleaton, 55 Ind. 1: Hedjcn v. S/ronrj, 3 Or. 18; lioolh v. Eir/hmic, 60 N. Y. -zSi; Quintard v. De Wolf, :ii B irb. 07; Wat.^on v. Jarnbi, -23 Vt. 1(19; White v. Solomon.-^ky, 30 Md. oSa; Lord v. DavUon, 3 Allen, 131; Click V. McAfee, 7 Port. GJ; AlUhou^f. v. Uam- s n/, G Whart. 331; Dri holdiny the promise orijltial, the credit having been given solely to the promisor: Skinner v. Gonad, 2 Vt. 453; Tfiwrits v. Curl, G B. Mm. 472; Brij(jsv. Evana, 1 E. D. Smith, 192; Jones v. (Joo;>er, 1 Cowj). 227; Bate-t v. St rr, G Ala. G07; Chase v. Day, 17 Jolius. 114; Is'eberrot.i v. Bieycl, 71 Pa. St. 2S0; UlcCafflllv. Eaddiff, 3 Ilobt. 415; Jejj'erson County v. St-ujee, Go Pa. St. 202; /Jiltz v. Scully, 1 Cm. Sapor. Ct. o'k}; Pnjne v. B ildwin, 14 Ba:b. 570; Smi'h V. f/i/de, 19 Vt. 54; Sinclair v. I'lchard- eon, 12 Id." 33; Turton v. Burke, 4 WU 119; wi:;h tlie amount, will be sufficient: Cirbett v. Cochran, 3 iliU (S. C. ), 41; Lanr/ilon v. Hmjhes, 107 M;;ss. 272; see ll.irri.i v.' Yomij, 40' Ga. C3. An agreement to submit a ilj.uand to arbitrntion is not a sufficient canceling of tha debt: JIarriiiij'on v. Ulh, Vt. Gjj. R3le3S3 from l3vy or impriaonment. — This clause is additional to tlie usual excep- tions. The rule in regard to tlie relinquioa- meuts of liens has been stated thus: " W'ocro the plaiatiff, in consideration of t!ie promise, has rclintpiished some lien, benefit, or advan- tage for securing or recovering his debt, rmd where by means of such relinquisiiinont t 10 sa.ne interest or advantaga has inured t;> the bcueflt of the defendant," there his oromise ij binding witliout writing. "Tiie substance of the contract 13 tlu piircoase, by thl person's obligation. If tlie^e 0XL;cptio:is v/iiich are specially inoiitioncd by this clause of tlio code can be eml)odied under any general riilo of law, they must fall un ler tliat ineutione 1 in tlie last clause of this subilivisioa; tlu^y must be considered as s])eeial considerations sulli- ciently beneficial to the promisor to remove a Hazen V. Bmrden, 4 Sueed, 48; lletjield v. Dow, promise founded upon them from the action of 27 N.J. L. 410. Ca'e viewed in a di.Terent liglit. The rele ise of the djfendant by the actor with the coasent of th's [diintifF is an absdato and irre.-oeablo satisfaction of the j 1 Ig neat., irres^jective of any un lerstaud- i 1,' or agreement tj the c mtrary: Freeman on E:eeuti)n?, see. 4j4. Tnjref,)r3, the antece- dent obligaiiou baiug caucebd, audthe defend- 4G9 §2794 OBLIGATIONS. [Dxv. Ill, Part IV, ant's promise being Jicccpted in lieu tliereof, this c:ise will form an iiisbance undoi' tiie first clansu of tills subilivisiou. Consideration banefloial to the prom- isor. — Tills clause, the coiio oomiuisionors say, enibfaces not only the cases wliere an abso- lutely new consideration moves to the prom- isor, l)ut also those in which property of the principal debtor, held by tlie creilitor by virtue of a lion, or under le^^al process, or otherwise for his demand, is surrendered to the prom- isor; and see further, infra. Surrender of lien. — Mr. Browne (Stat, Frauds, sec. 214 e) says: " Those cases in which the giving u[) of such lien, or security, or ad- vantage, by the plaintiff, though not to the de- fendant tlirectly or indirectly, has been held sufficient to take the defendant's promise out of the statute, are oj)[)Osed to the clear current of the later and better-considered cases, and must be rejected as not law." Tliis rule now obtains generally in the United States, the only notaiile exception being Soutli Carolina: Browne Sbat. Frauds, sec. 20o. The leading case in New York upon this point is Malloni v. Gillf/t, 2.3 Barb. 610; S. C, 21 N. Y. 412. In the affirming opinion in the court of appeals. Corn- stock, C. J., reviews at length numerous En- glish and American cases, overrules t'.ie one New York case to the contrary, and decides that such surrender must be to the defendant, ami inure to his benetit. The following cases sustain this doctrine: Richardson y. Robins, 124 Mass. 105; Smith v. Sai/ward, 5 Greenl. 504; Ifi'rntt V. White, 71 III. 237; Knitz v. Stewart, 54 lud. 178; Cross v. Richnrdson, 33 Vt. Gil; see Stewart V. Campbell, 58 Me. 439; //odgins v. Hianey, 15 Minn. IS."); Younj v. French, 35 Wis. Ill; Corkins v. Collins, IG Mich. 478; Arnold V. Stedman, 45 Pa. St. 186; Teajue v. Fowler, 5G Ind. 5G0. Purchase of debt— Where the transaction amounts to a purchase of the debt or lien by the promisor, the promise is not within tiie statute: Allen V. Thompson, 10 N. H. 32; Doolittle v. Nay lor, 2 Bosw. 203; Fren'-h v. Thompson, 6 Vt. 54; Thcrasson v. McSpedon, 2 Hilt. 1; Hindmayi v. Lanrjford, 3 Strobli. 207; Oardiner V. Hopkins, 5 Wend. 23; Olmstead v. Greenly, 18 Johns. 12; Mersereau, v. Lewis, 25 Wend. 242. Now and beneficial consideration from promisee to promisor: See also supra. It is not true, as a general rule, that a promise to pay the debt of another is not within the stxt- nte, if it rests upon anew cousileration passing from the promisee to the promisor. A new con- sideration for a new promise is necessary with- out the statute, and if a new consiileration is all that is needed to give validity to a promise to pay the i fuuiid sup;)0rt3il i.i Lonscp v. Williams, G Lans. decisions thus: "The distinguishing feature 223; Maloiii' v. A'«f/tf/-, 41 Pa. St. 107; Barker of the case is iu t!ie fq,ct that t'.ie defendant v. Snulder, 5G Mo. 272; Wymcin v. Goodrich, was not the owner or holder of the note, and 2G Wis. 21; Mohlle >. See also Ptnny v. Crane Bros. J^I/g. Co., SO III. 244; Train v. Jonc-i, 11 Vt. 444; Yanceij v. IJrowm, 3 8need, 89; Xeio Haven, Co. B'k V. M.tchell, 1.5 Conn. 20G; Darts S. M. Co. V. Jones, Gl Mo. 409; where the case wa.^ decided on tlie ground tliat "where a party directly binds himself to be responsible for tba fulfillment of another's coiitract already made, no sucli notice can be necessary:" Dotdeij v. Cnmp, 22 Ala. GJ9; Mitchell v. Cleurrj. Al Md. 374; lilathea-s v. Chrisman, 12 Smed. & !M. fiO.'); Carman v. EUedfje, 40 Iowa, 409; Coohe v. (Jriie, lil 111. ISO; Brandt Guar. & Sur., sees. 1G4, 1G5. See also note to sec. 2SG5, post. is admitted to amount only to an offer of guar- anty, it is universally held that notice of ac- ceptances wi bin a I'casonable time is necessary. The courts, however, differ more or less as to what is a guaranty and what is an offer to guarantee: Bran(it Guar. & Sur., sec. 157; 'Stc/' ford V. Low, IG Johns. G7, where the party ex- pressed a wiliiujne^s to guarantee if required; Beekman v. JJa/r, 17 Id. 134. Absolute guaranty: See sec. 2806, po>^t. This rule is mo ieled after tlie New York rule, which Mr. Wade, Law of Notice, sec. 3SS, as- serts has the largest following among the states of the Uni.-n, though the rule in Massa- chusetts is probably to the contrary. For the New York rule, see Dovylass v. llovdaiid, 24 ARTICLE III. INTEKPUETATION OF GUAItl^iTT. 27S9. Gnaranfxj of wcomph'te contract. Sec. 2799. In a guaranty of a contract, the terms cf which are not then set- tled, it is implied that its terms shall be such as will not expose the guarantor to greater risks than he would incur under those terms which are most common iu similar contracts at the place where the principal contract is to be per- formed. 356; ililUr v. Stewart, 9 Wheat. GSO, /'cr Story, J.; Ludlow V. Simoiul, 2 Cai. Cus. in Ih'ror, 1, per Kent. C. J.; but see Btlloiii v. Frecborii, G3 N. Y. 383. Sureties and guarantors are favorites of the law, and are never implicated beyond the strict terms of their agreement: Chase v. 31 r- Doiudd, 7 liar. & J. IGO; Lai^g v. Pi!:e, -11 Ohio St. 496; Kimjsbury v. ]\ est/uU, Gl N. Y. 28G0. Guaranty that an obligation is good or colleclihh. Sec. 28C0. A guaranty to the effect that an obligation is good, or is collect- ible, imjiorts that the debtor is solvent, and that the demand is collectible by the usual legal proceedings, if taken with reasonable diligence. Guarai-ity of collectibility. — "Thus, a Due diligence consists in instituting suit as guaranty in these woid?, indorsed on a note, soon as possible after nuvturity, ami obtaining 'I lieroby guarantee the collection of the within judgment an 1 execution thereon as soon a3 note,' i.i. ports a jiromise that the note can be practicable: V>ior/iies v. Atlee, 29 Iowa, 49. If collected of the maker if the holder, wiLliin a the creditor has special knowledge of lii>w he reasonab e Li.ne and with due diligence, prose- can collect t'.ic debc, he must collect it, even if cutes the same to judgment and executiou more than the regular process of suic is neces- agaiust the maker. This obligation to prose- sary: J/ojf'aia.i v. Bechtel, 52 Pa. St. 190. A cute witliin a reasonaljle time and with due judgment obtained promptly and c.xecutioa diligence is a condition precedent to the liabil- theieon is prtnia/acie evidence of due diligence, ity of the maker. What is a reasonable time depenils on thj circumstances of eacli case. Generally, delay which cannot have pi'ejudiced the guarantor wdl not discharge him: Galia- yher v. White, 31 I'arb. 92; see also Ciirlii v. Smnl/man, 14 Wead. 231; Co)l:". v. Xathan, IG Barb. 342; raadtrueer v. Wri[iht, 6 Id. 547; War/ield v. WcUkiiis, 30 Barb. 395;" Note iu proposed code. and in sucii a case, if other facts exist which show tlij aljseuce of due diligence, the burdeu of proving t!ie w falls upon t!:e guarantor: Backus v. Shii/ierl, 11 Wend. 629; Ald.khv. Chubb, 35 Midi. 350; Jlofman v. Bechtl, 52 Pa. St. 19v); and see Nichols v. Allen, 22 Miuii. 283; Fostn- v. Bame'i, 3 Vt. GO. Delay by the creditor la briu^iag suit against the original parties for a period of six 471 , 2801-2S0r OBLIGATIONS. [DiT. Ill, PAr.T IV, months: Cravj v. PnrhiH, 40 N". Y. 181; seven xaon\h^;..P.,[?,l Curb. 92. Wlisre tli3 d3iend3.nt promissd tils pay- mo.it of thL'. th.ird party's noLe within a certain tiine-, in coiisidcration of the extension of time 6n the note by the plaintilF, but stipulated that ii he, the defendant, should not p'ay the nota witliin the time mentioned the exten.sion of time should be discontinued, held, in case of noa-perfonnance by the defendant, the [ilaint- iffj must exhaust their remedy agaiiifit the third |iarty before proceedi.ig upon d feiid- anc's guaranty: Donoliae v. Qijt, 7 Cal. 242. ^ See Cndyv. Sheldon, 38 Barb. 103, where the /doctrine ot the above section is laid down after a discussion of numerous decisions^ and of the 'priuci[»les involved and connected with the subject. To the same effect: Peek v. Fr'inh, 10 Iowa, 193; Brnrlett v. Rich, 23 Minn. 485; Stone v. liockefdlvr, 29 Ohio St. G25; McDocds v. Y(0- mans, 8 Watts, 381; Thomai v. Dodije, 8 jNIich. 51; Sai'fordv. Allen, 1 Cash. 473; Dana v. Co- nant, 30 Vt. 24G; Jones v. Greenlaw, G Coldw. 342. Due courss of la-w. — Wliere, however, the contract expressly provided thr.t the guarantor should not be liable until after "due cour;;e of law" h.-ul boen exhausted aj.iiust t'.ie ])rior par- ties, the following cases held that th'.Tc was no room for construction, and the exact dili- gence stipulated for, no matter imw vain it might be, nor how insolvent the parties, must be used to charge the guarantor: Dirhjht v. Williams, 4 McLean, 5S1 ; MoakUy v. I'ijjs, 19 Johns. G9; Eddij v. StruUon^, 21 WJiid. 255; contra: lleraUon v. Mason, 53 Mo. 211. 2802. Guarantor's liability upon such guaranty. Sec. 2802. In the cases mentioned in section twenty-eight hundred, 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 piiu- cipal in its effect upon the rights and obligations of the guarantor. of the state at the time of the creation of the If t.!ie prior parties have property within the state, although they themselves are with- out the state, and this is known to the creditor, and the property can be reached by attachment, the ci-editor must, in the exercise of due dili- gence, attach such property: While v. Cii.se, 13 Wend. 543. If the original party resides out obligation, and continues to reside there, and has i)roperty at the jjlace of his residence, it ia the duty of the creditor to prosecute him there, before having recourse to the guarantor: Dart V. llorntr, 5 Barb. 501; see NtLueil v. Fowler, 23 Id. G28. ARTICLE IV. LIABILITY OF GUARANTORS. 2806. Guaranty, how construed. Seo. 2806. A guaranty is to ba deemed unconditional unless its terms import come condition precedent to the liability of the guarantor. "Whsre the guaranty ia conditional, happening of the condition must be established in order to fix the guarantor's liability: Ccre'/hino v. Hammer, GJ Gal. 235. Similar piinciplo in regard tosurety'dliabdity: Morjan V. Meiizi.es, GO Id. 341. VViiero one person guarantees tlie paym^rit of the debt of another, in consideration of the agreemjntof the creditor to stay pru, tee lings against the debtor, the promise of the c editor 'H a con lition precedent, and its perf )rm;iiice n.ust be proved to entitle hiin to a judgment against the guarantor: Smith v. Coni/jlon, G id. 24. 2307. Liability upon guaranty of payment or performance. Sec. 2807. A guarantor of payment or parformiuce is liable to the guarantee immediately upon the default of the principil, aud withoib do.n.i,ad or notice. 472 Title XlIT, Ciiap T.] GUAIIAXTY IN GENEHAL. §S-S05, 2SD9» ITotioe noi necessary.— From a considera- tion of the reported cases bearing iij^on the auesticn, tlie current authority seems to bo ecided.y in fa\ or (f the doctrine that where the contract of gnarauty contemplates indem- nity to the gr.arau-ec in a certain sum, rr sum capable of being ascertained with readiness by the guarantor, within a certain time, and de- pending upon tiie single contingency of tiie principal's failure to perform, no notice ia necessary: \\'ade on JSTotice, sec. 423. It may be laid *lown a.s a genei'al rule that in case of an absolute guaranty the guarantee is not en- titled to demand a notice of uon-pcrfin-mance: Baylies 8ur. & Guar. 202, with numerous cita- tions: Brandt Guar. & Sur., sec. 170. That this eection changes and extends the law as it here- tofore existed, so that now no notice is required whore prior to the code it was necessary, is un- doubtedly true, find such seems to have been the opinion cf tl:e code commissioners. Uevr Ycrli courts liave Iield that where the guaranty is for the paj'ment of a note or other obligation, the undertaking is not con- ditional but absolute that the maker will pay the note when due, and that when the maker fails to pay the plaintiff has a complete right of rx'tion without notice or demnmW. Brown v. Curtis, 2 N. Y. 22.}; MIcmn v. Eckj'ord, 15- Vv'end. i3C2; DcirhydC v. Lllis, 4-"i N. Y. 107;- Vaii llensKclcier v. Jlirler, liill & D. Siipp. 237r Allfu V. Jilffhfmere, 11 Am. Dec. 23o. The early C.ilifcmia case-!, confirmed in all the subjerjuent (iecisioE-s up t(> the time of" the adoption of the-awles, establisha 1 the rule t'.iat when a party, st stranger to a note, atlixcd Irs signature upon-it prior to deliv-iry, with or without worrls ileuGtiug an intentica to guaran- tee the instrumetrt, ho was a guarantor, but cntitleil t) demand and notice like an indorse;-:. /?/;77.s> V. ]Va!do, 2 Cal. 43.1; Pierce v. Kennedy, 5 i.l. 1.3S; Uradi/ v. ReynoUls, 13 Iik 31; Cfe;jer- V. Clark, Id. did; lieveiw lIow<',.Vo Id. 152;. Ford V. llendrkk-t, 34 Id. (>73; .Joues v. Gool- whi, 39 Id. 4, which, relying upon the cases just cited, decides that the indorserof a promis.5ory note, after maturity, is a-guai-autor and entitled to notice o? non-payn»ent. Insolvency of principal: Seo note to next. section. 2808. Liabilily upon guaranty of a conditional obligation. Sec. 2808. Where one guarantees a conditional obligation, liis 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, bj the exercise of reasoBxible dili- gence, to acquire information of such default, and the creditor has actual notice thereof. Guaranty of conditional obL-gation. — ]Yheie one parly a'jrees to account and pay over such s..m as thail be found owing by him, and a third pc"son covenants that tiie party thus agreeing tliall periorui the agreement, an action lies against the covenantor or guarantor with- out notice from the covenantee of the non-per- formance of the princii)al: Doiujiass v. How- laml, 24 AVcud. 3.<, />cr Cowen, J. If tlie principal debtor be insolveat when the debt becomes tlue, and afterwards so re- main, no demand need be made on him, or no- tice of his tlelanlt given to the guarantor, in most cases, u hei-e it would be otherwise neces- Bary, unless some loss or damage can be shown to have occurred to the guarantor in conse- quence, and he will only be discharge 1 tooths extent of his injury. Deliy and da:nage r.iu-;;t both concur to disciiarge the guaraiito; : Woodi- son V. 21oody, 4 IIuinp!:j. 30.'J; Loiiirm.Lle Sf/J, Co. V. Wiich, 10 llow. 431; llynohb; v. Douj- lass, 12 Pet 497; Skofudd v. Ilalevi 38 Am. Dec. 337; Johnson, v. Wlhnar'h, 1.3 iilet. 41G;; Bank V. Kn'ttii, 10 Ricli. L. 543; March v. Put- ney, 5G N. 11. 34; Farmms' 7; Whitney v. Groot, 24 Wend. 82; Aldrick v. lluj. ■gins, 10 S. r^. & R. 213; Anderson v. Blahley, 2 Watts & S. 237. The rule in England is to the contrary: Baylies Sur. & Guar. 120; see also Creiner v. Hi(ji/inson, 1 Mason, 323, ^er Story, J. '2815. Revocation. Sec. 2815. A continuing guaranty may ba revoked at any time by the guar- antor, in respect to future transactions, unless there is a continuing consider- ation as to such transactions which he does not renounce. mining whether the instrument is to be con- strued as a continuing guaranty or nc^t, if the language of the agreement itself is ambi<,'uous: While's Bank of Biiffa'o v. M>/les, 73 N. Y. 335; where no ambiguity it is otherwise: Boston tfc S. (.lass Co. V. lioore, 119 Mass. 435. RatiQcation. — Where a guaranty was such that standing alone it would not have been held to be continuing, but tlie parties iiad for some time acted upon it as a continuing guar- anty, it was held tliat it should be so construed, ]i€r Redlield, G. J., in Mich. State Bank v. Pecks, 28 Vt. 200; see Dou'jlass v. Reyaolls, 7 Pet. 1 13; and White''s Bank of Buffalo v. Mi/les, 73 N. II. 335. For instances of continumg guaranties, see Brandt Guar. & Sur., sees. 131-137; Baylies Sur. & Guar. 125. Sec. 1029, ante. Doubtful expressions in a subsequent cor- res[)oniIence should not be construed as revok- ing an e.xn.icit guaranty: Lanasse v. Barker, 3 Wheat. 101. Dissolution of copartnersMp with notice revokes: Citif Nat. Bink v. /*hel/t<, I'i Hun, 153; an I see, generally, Jeiuleri.ie v. Rose, 36 Mich. 54; Gelpcke v. Quentetl, 74 N. Y. 599. AETICLE VI. EXONERATION OF GUARANTOrtS.- 2819. What dealings with debtor exonerate guarantor. Sec. 2819- A guarantor is exonerated, except so far as he may ba indemni- fied by the prineip^il, if bj any act of the creditor, without the consent of the 474 Title XIII, Chap. I.] GU-UIANTY IN" GENERAL. q 2S19' guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal in respect thereto, in any way impaired or suspended. ton, 40 Id. 225; Toums v. Biddlc, 2 Ala. 694; if the contract is varied, JliirhcU v. IJur'on, 2 Head, Gi:); see Smith v. Slate, 4G Md. 017. Order by creditor to return execution leviedi on property of one surety iinsatislie I does not' discharge the rest, except as to his share: Dodd v.ll'iiui, 27 Mo. 501; contra: Martin v. Ta'ilor, 8 Bush, 384. If the creilitor releases one surety, but expressly provides that such release shall not affect the liability of the other sureties, held, other sureties bound the sa:nea3 before the release: IlewUCi Adinr v. Ad imf, 1 Patt. & II. 34; contra: Jenison v. Governor of Alahama, 47 Ala. 390. Release of securities. — It is well settled that if the creditor, against the vvUl of the See sees. 2799, 280D, notes. Eiicept so far as lie may be indemnified by the principal: 8ee sec. 2824, pout; Moore v. PahH', 12 Wend. 123. Rights of creditor V7hsre security given: Sec sec. 25.")4, jto^st. Forbearance will not discharge: See. 2823. See injra, "Giving Time to Principal." Be- yond the bare neglect of the creditor to en- force payment, there must be some act of con- nivance on his part in a fraud upon the surety, or of a negligence so gross as to amount to a fraud: McKeckuie v. Ward, 53 N. Y. 541; Peo- ple V. JfiikiiiN, 17 Cal. 5u0. Before an omis- sion of duty on the part of the creditor will operate to discharge a surety, the surety mu;jt intervene and lequest the performance of the surety, releases the princi[)ars property which duty: Clark v. Sir/dcr, G4 N. Y. 231; Summer- hilly. Tujip, 52 Ala. 227; Lumsdenv. Lronard, 55 Ga. 374; see Sfcirart v. Barrow, Id. G64; sec. 2845, jiost; but see People v. Evans, 20 Cal. 429. Guuranti; of coUcctih'ditij is of course an ex- ception. The creditur here must exhaust the legal remedies without request: Sec. 2800, ante; Aortherii Ins. Co. v. U'rijht, 13 Hun, 1G6; S. C, 7G N. Y. 445. Neglect or refusal to sue after request ■will discharge: Sec. 2845, post, and note. Failure to discliarge servant after his de- fault is d seoveied will discharge surety on con- tinuing guaranty for the honestv of such em- ployee: Phillips V. Foxall, L. Vx.', 7 Q. B., GoG. Sanderson v. Aston, L. R., 8 Exch., 73. But otherwise if the default was occasioned, not by the fraud or dishonesty of the employee, but was rather attriliutable to his negligence, Charlotte C. . v. Gow, 59 Ga. G85; see Atlantic <£• /Vtc Tel. Co. v. Barnes, 04 N. Y. 3S.'i; Iloice Machine Co. v. Farrington, IG Hun, 591. Non-compliance with the by-laws of a he holds as security, he loses hiscla'm upon the surety to the extent of the value of the prop- erty surrendered: Morley v. Dlrklason, 12 Cal. 501; Capital Savinrjs Bank v. Reel, G2 Id. 419; releasing attachment: Kirkpntrirk w Ilowk, 80 111. 122; Jlurdv. Spencer, 40 Vt. 581; Kennedy V. Bossier, 10 La. Ann. 445; Sprin/er v. Tooth- aker, 43 I\Ie. 331; X. If. Savings Bank v. Col- cord, 15 N. H. 1 19; Ilubhell v. Cdrpenter, 5 Barb. 520; Culluniv. Emanuel, 1 Ala.,N. 8., 23; Clop- ion V. Spratt, 52 Miss. 251; Dillon v. I'assell, 5 Neb. 4S4; Moore v. Gra;/, 20 Oliio St. 525; Fer/tison v. Turner, 7 Mo. 497; Smith v. Mc- leod, 3 Ired. Eq. 390. IMerc omission of bank to appropriate money on deposit to payment of note will not dis- charge surety: Voss v. German Am. Bank of C, 83 111. 599; National Bank of Newbn-fjh v. Smith, 60 N. Y. 271; see " Forljear.mc^," supra; Brandt Guar. & Sur., c. 17, 18; Cooper v. Wil- cox, 32 Am. Dec. G98, note. Giving tim3 to principal discharges surety. But to have this elTect theie must be some binding agreement between the creditor corporation by the directors thereof will not and i)riiici[)al debtor entered into without the discharge the surety whose liability rests upon knowledge or consent of the sun-ty, founded the conliileuce he has reposed in his principal u[ion a valuable consideration, for au extension alone, and not including the other oiucers of of time for a definite period, whereby tlie crcd- the corporation: State v. At/irrton, 40 llo. 209; Morris Camd oa, 32 I. id. 438; releases all sureties, see Stockton v. Siock- IMdOVarnerv. Campbell, -Ili 111. 2:i2; People's Bank v. Pearsons, 30 Vt. 711; AVc.' Hampshire SavlwjsBankv. Ela. 11 N. II. 335; Wakefield Bankv. Truesdcde, T^o B.irb. 032; Union IJank V. MrClunj, 9 Humph. 93; contn: See 43 Me. 13 >; lloseav. Rowley, '^l Mo. 3')7; Blacks'om Ba:-i\-\\nVl, 10 Pick. 12.); llausburger's Adm'r V. Kinney, 13 Gratt. 511. 47o §2820 OBLIGATIONS. [Div. Ill, Takt IV, lietervinfj remedj/ a fjainsf, surety. — Giving,' timo to principal, but reserving, by agreement, tlie remedies against tlio sureties, dues not release the sureties for tliey may praeeed against the debtor at any time: Salmon v. Cla'/rU. 3 Dland CIi. 125; llaiinjx. ///7/, 75 Pa. St/ 103; RiLcter V. lioblnson, '.id Mo. 1j4; Morse v. Ilaiit'nirjtoii, 40 Vt. 4oS; Solder v. Loriiifj, OCus'.i. 537; Mor- gan V. Smi'k, 70 N. Y. 537; Wd^jman v. llo:iShaiii. 49 Cal. 131. Dlsjliarge of prinoipnl generally releases surety: Pad lleford v. Thaclier, 48 Vt. 574; Brldps V. Phillips, 17 Tox. 123; Dl-keson v. D II, 13 La. Ann. 249; Lynch v. Reynolds, 13 Jolms. 41; Anthony x. Capel, 53 Miss. 350; Boschert V. Drown, 72 Pa. St. 372. Surety fully indemnlfird is not discharged in such a case: Moore v. Pal le, 12 Wend. 1_'3. Imprisonment of the principal on cxecation for the debt ha-s been heUl to be so lo!ig as it c )ntinue3, a satisfaction of the dj')t, wliich bars the creditor during that time from all otlier remedy therefor: Koenimy v. Steckel, 58 N. Y. 475. Sareiy or guarantor disohargad by con- oeilai3at or fraud: Brandt Gi\dv. & Sur., sees. 313-333; Baylies Sur. & (Juir. 233-;539. If sureties sign with the express understand- ing with tlie principal tliat certain other per- sons shall sign as sureties, a delivery of the bon 1 to the obligee by tlie principal without the signature of such other persons will not discharge the sureties who signed: Tldball v. //alley, 43 Cal. 010. If such agreement is witli the creditor, surety is not b.»uiid unless it is caniplled with: Brandt Guar. & Sur., sec. 349L 2823. Vo Id pro misfs . Secx- 2320. A promise by a creditor, which for any cause is void, or voidable 476 Title XIII. Chap. I.] GUATtANTY IN GENERAL. §§ 2821-2825 by him at his option, does not alter the obligation, or suspend or impair the remedy, within the meaning of the last section. Giving time to principal: See note to sec. 2819, supra, 2821. Rescission of alteration. Sec. 2821. 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. Erasing alteratioa— A material alteration 13 N. H. 240, his liability will be revived: destroj s the surety's liability on the mutilated instrument: Sec note to sec. 2819. The identity of the instrument has beendestroycd and an era- sure iif the alteration will not restore the sure- ty's liability on the grounds of public policy: Nefw Horner, (5.3 Pa. St. 327; Lemexj v. Reed, 40"Barb. IG; Fulmer v. Seitz, 08 Ta. St. 237; Marsh V. Griffin, 42 Iowa, 403; Locknave v. Em- erscn, 1 1 liusli, G9; Glover v. ^o6m.s-,49Ala. 219. Revival of liability efter discharge. — If, witli full knowledge of his discharge, the surety makes a new promise to pay the debt, although not upou a new consideration, Fowler v. Brooks, Marshall v. Tracy, 74 111. 379; Du?enherry v. Jloyt, 53 N. Y. 521. The new promise need not be in writing, but it must be express, un- conditional, and unequivocal: liandUlje v. Ly- man, 124 Mass. 361; Moneley v. Collwell, 59 Tenn. 208; Siem v. Niisshaum, 3 Daly, 382; Allen V. Ferguson, 18 Wall. 1 ; see Apjirrson v. Stewart, 27 Ark. 619; WilHfs v. Cotherson, 3 111. App. 644. There is no authorized agency for such a purpose between jomt debtors, prin- cipal and surety, or insolvent debtor and his assignees: Smith v. Ryan, 66N. Y. 332; Picket v. Leonard, 34 Id. 175. 2822. Part performance. Sec. 2822. The acceptance by a creditor of anything in partial satisfaction of an obligation reduces the obligation of a guarantor thereof in the same measure as that of the principal, but does not otherwise affect it. Part performance of the obligation, ex- on payment of fifty cents on the dollar, and pressly accepted by the creditor in writing, would extinga sh the obligation of the debtor, and tlicrefoic liiat of the surety: Sec sees. 1523, 1524, aide; and see OberiidorjJ' v. Union Bank of Baltimore, 31 Wd. 126, where it Mas held that the parol release of the principal debtor, the actual paj'ment of such sum by the princi- pal debtor, discharged neitlier principal nor surety, there being no consideration for the agreement, and no deed of composition with the creditors, or release under seal, which would have imported a consideration. 2823. Dda]j of creditor does vol discharge guarantor. Skc. 2823. Mere delay on the part of a creditor to proceed against the pnn- cipal, or to enforce any other remedy, does not exonerate a guarantor. Notice to creditor to sue: See jiost, sec. 7 Id. 419; see note, sec. 2819, " Forbearance;" 2845, and note. To tlie same effect: JJiim/ih- and sec. 2S'2.'), ])ost, note, "Failure to Present reys v. Crane, 5 Cal. 173; Sacrainento v. Kirk, Claim." 2824. Guarantor indeninifipd bij the debtor, not exonerated. Sec. 2824. A guarantor, who has been iudemniHed 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. Sec sec iSlH, and note. cipal: Moore, v. Paine, 12 Wend. 123; Ten Eyrls ludcmnixiad guarantor. — In such case, the v. Holmes, 3 Sand. C'li. 42S; Smdh v. S!cele, 25 Burety himself occupies the position of a yir'ni- Vt. 427; see also sec. 2794, subd. 1, ante. 282 J. l)utate v. Cone, 32 Ga. 0ij3. "Art of God," ill general, does not excuse surety or guarantor from the perforniajico of 477 §2S31 OBLIOATIONS, [Div. III. VAv:r J"^, his contract, fijf he might have provick'd in the agrc;ciiicnt f(ir liis exemplion frmu lialjiliiy in such a case: JJncoii v. Cohb, 45 lil. 47; Jilill Foundry v. Ilorcij, 21 Pick. 441; L>' moll v. Jo7iei<, 2 Wall. 1; >b'atrh-k, 7U i'a. St. 324; see Baylies Sur. & Guar. 287. Failure to present claim against estate. If the creditor fails to present his claim against the estate of the deceaaed jirincipal until all remedy against the estate is lost by reason of sucii delay, nevertheless the surety is aiot dis- cliargcd by this merely i>assivo dereliction. The discharge of the estate is an act of law: llaihairaij v. JJnvis, 33 Cal. 101; M inter v. Branch Bank of MohUe, 23 Ala. 702; Fe.lrow v. Winemav, 40 Ind. 148; Uai/ v. Brenner, 12 Kan. 105; Vredenbimih v. •'^•uyder, G Iowa, 39; Moore v. Gray, 2o Ohio St. 525; VU'ars v. Puimn-, G7 111. 204; Anhhy v. Johnston, 23 Ark. 103; contra: Dor---!, ante), sureties, on the other hand, receive in general no other consideraiion than that embraced by the princip.d contract, their obligations being en- tered into contemporaneously with the principal contract and for the purpose of securing the principal a benclit. Indorse rs. — The drawer of an accepted bill and the indorsers of a bill or note occupy in respect to tlic holder a relation much rcsenibling that of surety and creditor, but differing in the essential characteristic of contribution, which does not exist among indorsers. i'urtliermore, an iudorser is not liable, like a surety, primarily upon llic contract of his principal, but upon a se; aratc and independent contract, conditioned U[i0ii a due demand upon the principal (the ac- ceptor or maker), and the requisite notice of dishonor to himself. In New York it is held that an indorser cannot, like a suretj, call upon tlie creditor to jirosecute the princi[>;!l: Trimbie V. Thome, 16 Joims. 152; see Daniel on Ncg. Inst., sec. 1303. On this subject generally, see cases cited under I, supra; Brandt Guar. & Sur., sec. !; B-vylies iSur. & Guar., sec. 1; Courlli v. Dennis, 7 Mot. 4S; (tx/onl Dank v. ILn/nes, S Pick. 4-27. Kypotll2Cat33 property: See Varlie v. f/ii- denvoo I, IS Barl). 501, same effect. Importanoa of request: Sue in note to sec. 28-17. 2832. Apparent principal may shoio that he is siirchj. Sec. 2832. Oug who appoars 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 prin- cipal. Knov7ledc3 by creditor necessary. — It is generally held, in tiie decisions which ibllow this doctrine, that knowledge by the creditor of the fact of suretyship is necessary in order to admit parol evidence as to the suretyship, and to cntiulc the surety to his ri^i^hts and inununi- ties as such: Ory.'sv. Ncwed, 17 Conn. 97; Wil- son V. Foot, 1 1 Met. 285; Murray v. Graham, 29 Iowa, 520; sec note to Grafton Bank v. Kent, 17 Am. Dec. 41(J; and this knowledge by the creditor must be alleged and proved: Farmers' National Uanlcw Stovr, GO Gal. 387, 392. It '\i not necessary that the creditor siiould have knowledge of the true character of the surety at tlio time the obligation was executed. It wi J be suliicient if he have such knowledge when he committed the act which the surety complains of as working his release: Bank of Misouri V. Mattion, 2G Mo. 243; Lauman v. Nicho's, 15 Iowa, IGl; Wheat v. Kenda', 6 N. H. 5J4; Smith v. Sheldon, 35 Mich. 42. It has been urged that this is in effect a vio- lation of the common-law rule, and an admis- sion of parol evidence to vary the terms of a written contract. To which it is answered that such evidence does not concern tlie terms of tlie contract, but goes to establish something out- side of, bjyond, and collateral to such terms: Hose V. IVidiams, 5 Kan, 483; Carpenter v. Kinrj, 9 Met. 511; Harris v. Brooks, 21 Pick. 195; Ward v. Stout, 32 111. 399; Bank v. Mum- ford, G (ia. 44; see note to Oraflon Hank v. Kent, 17 Am. Dec. 416. Rule before the code. — The majority of the American decisions follow the rule of the above section: Brandt Guard. & Sur., sec. 17; but the California cases prior to the code established the law in this state thiit one w!io signed a promissory note as maker, under whatever circumstances, would not be allov.^cd to vary his apparent obligation by parol: And V. 3Ia(jruder, 10 Cal. 282; J/umphreys v. Yale, 5 Id. 173; llartman v. Burlingame, 9 Id. 557; Kritz^r v. Mills, Id. 21; Bane v. Corduan, 24 Id. 1G4; Shriverv. Lovejoy,'S2 Id. 574; Damon v. Par.loir, 34 Id. 278. Seotion construed. — Per McKinstry, J., in Harlan v. Ey, 55 Cal. 340: "This section of the Civil Code relates to the class of cases in which the apparent differs from the real char- acter of a contracting party. But one may bo a surety merely as between himself and his co- promisor, and yet, as to the cretlitor, botli his apparent and actual character be that of a principal. * • ♦ Plaintiffs refused to loan the money to Scroggins alone, but agreed to lend it, and did lend it, to Scroggins and de- fendant upon their joint and several obligation. That they knew the former alone was to get the use of the money cannot change the result. It was lent to both. The cliaracter wliich it was agreed should be performed bj' defendant in the transaction with plaintiffs was that of principal. If plaintiffs had advanced tlieir money without notice of the suretyship, they could have held defendant as maker. If tiiey had agreetl to take him as surety, they could only have held him as such, althougii he ap- peared as principal upon the written instrument. The present is a case beyond tiie statute." ARTICLE II. LIABILITY OF SURETIES. 2836. Limit of surety's obligation. Sec. 283G. A surety cannot be held beyond the express terms of his con- tract, and if such contract prescribes a penalty for its breach, he cannot in any case be liable for more than the penalty. 479 ^§ 2837,-'£838 OBLIGATIONS. [Div. Ill, Paet ir. Express terms of his contt%c5t.— To the same effect: Pfople v. Duster, 11 Cal. 215; Peo- ple V. Brci/foijli', 17 LI. r)04; Si-hlnss v. iKA/^f, 16 Id. Go. Seo L'xjhtiier v. Meuze/l, ."old. 4r)2; Victor E. M. Co. v. Schejler, Gl Id. 5.30, where more property was ijlaced in tlie control of the i)rinci!ial than waf? permitted by the con- tract; Carson Opera I'louHt v. Miller, 8 Pac. C. L. J. 9i:?; Me'loskey v. Cromwdl, 11 N. Y. 598; Bethune v. Dozier, 10 Ga. 2-10. The Ualiiliiy of a surety on an attachment bond is on his contract. He is not liable as a trespasser for a seizure of property attached by the sherifi-, even if the ^ond was void: McDon- ald V. F(tt, 49 Cal. 354. "An indictment ■ against H. for receiviHg stolen goods. '^ Such finding is not sufficient to charge sureties on a recognizance for the appearance of one II., charged with the crime of receiving two mules alleged to have been stolen: People v. Hunter, 10 Id. 502. Not liable for more than prescribed pen- alty — T!ie principle which limits tlie liability of the surety by the penalty of his l)ond inheres intrinsically in the character of his engagement. He does Kot undertake to perform the acts or duties stipulated by his principal, and would not be permitted to control their performance, and could not, where his principal was a public officer: Legp'i'jer v. Creps, 2 \Vatts, 45; Bankof Steu- surety: J\lannficturf'r<' j may compel principal, etc. Sec. 28-iG. A surety may compel his principal to perform the obligation when due. the creditor to sue, and it may be doubted MJietlier any other action by the surety against tlie creditor is alloweil in our state." Section 2845, ante, may be considered as containing another substitute for tlie eciuitable ai^tion. The action under this section is provided for in section 1050, Code of Civil I'rocedure. Iu Dane v. Cordaan, 2i Cal. 165, the court said: "The action contemplated by this section [sec. 1050, sujva] was doubtless intended as a substi- tute for the proceeding in chancery to compel 2847. A principal bound to reimburse his surety. Sec. 2847. If a surety satisfies the principal obligation, or any part thereof, ■whether with or without legal proceedings, the principal is bound to reimburse what he has disbursed, including necessary costs and expenses; but the surety has no claim for reimbursement against other persons, though they may have been benefited by his act, except as prescribed by the next section. Any part thereof. — If the surety pays dif- when he pays it. This is not making several ferent parts of the debt at different times he claims of one, because the del)t due the cred- may sue the principal for each iustallment itor is not the surety's cause of action; but the 482 Title XIII, Chap. II.] SURETYSHIP. §2343 payment which he has made for the pnncipal IS his cause of action, ami it is complete the insuuit he makes the j ayment: Bullock v. Cnniiib.n, <) Gill, 182; llUbainx v. Williams, 5 Ohio, 444; I'irkct v. Baici', 3 La. Ann. (Vll. Unless he became tiurety at the request of the pr:!nc3pal, a surety cannot oiilinar;!y rico\tr iiidcmaity from tlie principal, there l:ein^ no implied promise to that ellcct: Ex'rs of While V. Whilp, .SO Vt. 33S; iMrPhrr^ou v. ihVr/-, ;50 Mo. .';45; Carter v. JJlucL; 4 Dev. & B. L. 4->3; J J ill V. U'rlijht, 23 Ark. 530; and see definition of srrety in sec. 2S3I. Cau recover only the amount disbursed. If he cMlinguisIjes the debt for a sum less than the full amount tiiereof, he recovers only tiie amount paid: Baton v. Lurnbirt, 1 Neb. 339; Co'i.ieshad V. Hiiij'jlrs, 02 111. 401; Crozicr v. Gj-ui/fon, 4 J. J. Marsh. 514; B/ow v. iMai/- nard, 2 Leigh, 29; and the interest thereon: IH(k'< V. iJui'ey, 10 Tex. 229; AlUen v. Bacon, 4 J. J. Marsh. 457. //■ he iiaJjii ill land, lie can only recover the value of tiie land: Bonacy v. Seelij, 2 Wend. 2848. The surety acquires the right of the creditor. Sec. 2848. A surety, upon satisf^ying the obligation of tbe principal, is enti- tled to enforce every remedy which the creditor then has agaiust the principal to the extent of reimbursing what he has expended, and also to require all his co-sureties to contribute thereto, without regard to the order of time in which, they became such. Subrogation, who entitled to. — A mere all parties thereto for the purpose of enforcing stranger or volunteer who pays a debt cannot tlie rights of the sui-ety, and it will be presumed be subrogated to the creditor's rights: llon/c!t, 39 K. H. 150; see City of KeuLuk v. Bon\ 31 iowa, 119; and coidra: Wdiianis v. Tipton, 5 liumph. CO. Surety must sustain ac+ual loss. — Siibro- the judgment alive, so that he may be subio- gated to the creditor's rights tliereundcr: 2scil- aon v. Fry, 10 Ohio St. 552; Bddy v. Traver, Paige Ch. 521; Udl v. Manser, 11 Gratt. 522; Mcnymuii v. Slate, 5 Har. & J. 423; Richler v. CummiiKjx, 00 I'a. St. 441; see Code Civ. Proc, sec. 1059. Paj'ment of a portion of tlie judgment by surety does not operate as au assignment thereof: McDrrniotl v. Mitchell, 53 Cal. Oi7; see also Poll v. Xalhans, 37 Am. Dec. 450, and note. Contribution Neither notice of the satis- faction of the principal obligation nor demand for contribution is required before commencing au action fur contribution. Tlie last portion of section 2S4S, whicli provides that the surety, having satislied the obligation of the principal, is al.so entitled '"to recjuire all his co-sureties to contribute," etc., evi.lently means that the surety may compel his co-sui-eties to contrib- ute. Tlieic is nothing in sections 2845 to 2848, xiijira, wliicli makes the liability of the eo- gation will not be allowed when the surety who surety to contribution depend upon the insol- lias paid is indebted to tlie priiici[ial in more than the amount of tiie debt, nor wiieu the party claiming it has, in fact, l>c-en reimbursed, and has sustained no loss: JJlrakley's Ajij/cal, CO Pa. St. 187; Avert/ v. J'elten, 7 Johns. Ch. 211; i1/rt.vo7i V. Lord, 20 i'ick. 447, 449; Baz- zelCs Advir v. White, 13 Ala. 422; Baton, v. JIasty, Neb. 419. Keeping alive judgment.— If nothing ap- pears as to the intent with whiuli the suixty pays the amount of tiie judgment, the bett.i-r opinion seems to be that tiie judgment is dis- charged so far as any benefits which tlie cred- itor might otherwise j personally derive theie- from is coucerned, but is kept alive as between veney of the principal: 'Taylor v. Reyuold.t. 53 Cal. 087, GS9; see Morrison v. Poyiitz, 32 Am. Dec. 92, and note 94. Although bound by separate instru- ments, if the lial)ility is the same, the sureties will be liable to contribution: Powtll v. Pom II, 48 Cal. 2:54; Woodworlh v. Boicex, 5 hul. 270; Brfckinridi/e v. Taylor, 5 Dana, 110; J/arrison V. L'ljie, 27 Am. Dec. 007; Armilaije. v. Puller, 37 N. Y. 494. Equitable rule of contribution — In case some of the sureties are insolvent, the paying surely should seek contribuiion in e(juity, and may bring suit against tlie solvent sureties only: Biirioujhs V. Lott, 19 Cal. 120; when, upon 48a §§ 2S49-2854 OBLIGATIOXS. [DiV. Ill, PAIiT IV, proof of tlie insolvency, tlio court, exercising its authority in accordance witli the maxim, "Equality is equity," will decree us coiitribu- tion from his solvent co-ynreties a ]iro rata amount of the sum paid \ La. Ann. 579; Hitiaill v. Murray, Vt. 130; Leary v. ChisUire, 3 Jones Eq. 170; Low v. Smart, 5 N. II. 333. Eut if, as a condition precedent to liis becoming surety, iudemnity be taken by a surety, his co-sureties are not entitled to the benefit of it untilaf ter he for whose benefit it was given is fully repaid. This exception is re- served in the above definition: Moure w Moore, 15 Am. Dec. 523, and note 520; IJall v. Kob- inaon, 8 Ired. 30; note to Derimj v. Earl of Winchelaea, 1 Lead. Cases in Ec£., 4th ed., 171. 2350. Tlie property of principal to be taken first. Sec 2850. Whenever property of a suretj' is hypothecated with property of the principal, the surety is entitled to have the property of the principal first applied to the discharge of the obligation. So where principal and surety have both 501 ; Jamea v, Jacques, 20 Tex. 320. For an ex- mortgaged propsrty: Xtemcewicz v. Uahn, 3 plauation of the use of the word "liypothe- Paige Ch. 014; VarLie v. Uhderwood, 18 Baib. cated," see note to sec. 2920t the equities betA-eeu them as co-suretie.j cease, and each becomes an indepemlent creditor of the principal for the amount paid by him. In sujh case, if one afterwards receives imleinnity from the principal the others are entitled to no part thereof: Mesner v. Swan, 4 N. II. 481; Jiarrhion v. PhiUi/is, 40 Mo. 520; Allen v. Wooil, 3 Ired. Eq. 380; JIall v. Cnshinan, 43 Am. Dec. 502, and note; see Gould v. Fuller, 18 Me. 304. This exception is also reserved in the above definition. Security held by the creditor. — This is a mere repetition of what is embraced in the first clause of the preceding section: See note, " Subrogation," under sec. 2848, supra. If tlie maher of a promissory note assigna collateral .security for its payment to tiie payoj, the liability of the sureties becomes fixed ut t'.o time the co. lateral security is exhausted: Eus- sol V. Brwjuiere, 50 Cal. 430. Certain jieculiar language was here used, upon which tiie court based its decision: Id. 439. Such is not the general rule: brandt Guar. & Sur., sees. 204, 120. . Security held by co-surety: See note to Had V. Cushmau, 43 Am. Dec. 503. ARTICLE IV. lUGUTS OF CKEDITOnS. 2854. Creditor entitled to benefit (fsecurilies held by mrety. Sec. 2854. A creditor is entitled to the benefit of everything which a surety has received from the debtor by way oi security for the performance of the obli- gation, and may, upon the maturity of the obligation, compel the application of such security to its satisfaction. Securities held by surety: See Brandt indemnity given the surety unless tlie surety G\iar. & Sur., sec. 282, 283. could have done so. If the surety has not l)een The credito*- (sauuot ^vail himself of personal damnified, and the conditions of the mortgage 484 TirLF. XIII, CuAP. IL] SURETYSHIP. §§2858-2862 or other contrcact of indemnity are unbroken, Watson v. 7?o.?e's Ex'th, 51 Ala. 232; O'ao Life the creditor is not entitled to subrogation: Ins. av- A.icer dischargs of surety, creditor has no iiigs Ikiiik, 7 Conn. 478; Van Orden v. Durliam, ric^ht to enforce inilenjnil.y given to tlie surety, 35 ('al. l.'JG, holding in ellect that a creditor the surety himself not having this power: Con- •whose debt is extinguished is not entitled to stcnit v. Mat/e.soii, 22 111. 540; llusxeU v. La subrogation to indeuuiiLy of surety; and that Hoqiie, 13 Ala. 149; Havens v. Fuudr>j,A^lc\.c. wiiero the creditor holds security for his debt (Ky. ) 247; Bunk of I'ir'jinla v. Jioi.isean, 12 he is not entitled to appropriate both this seen- Leigh, 387; see Itankia v. Wilsey, 17 Iowa, rity and the surety's indemnity simultaneously; 403. ARTICLE V. LETTER OF CREDIT. 2853, Lf'ttei' of credU, lohat. Sec. 2858. A letter of credit is a written instrument, addressed by one per- son to another, requesting the latter to give credit to the jDerson in whose favor it is drawn. Request. — Ordinarily no request is ex- is in itself an implied request that the act be ]ireyacd in terms in the letter of credit, but the done upon whicli the wnter buses his promise: prouuse of tlie writer to do an act in consider- Baylies Guar. & Sur. 10. iitloa of some act to be doue by the promisee 2859. IIoiv addressed. Sec. 2859. A letter of credit may be addressed to several persons in suc- cession. 2SC0. Liability of (he lorlter. Sec. 2^C0. 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. Compliance witli ils terms.— Letters of to accept such as may 1)6 drawn in good faith cred.t are f^^ccial contracts, and are not nego- and wiihin the limits of the creditor deposit tiable in a legal sense; nor are they to be con- specified: lioman v. >Serna, 40 Te.x. 300; Pol- Etrucd as actual acceptances of bills or orders lock v. Helm, 54 Miss. 1; see sec. 2SG0, pO'St. drawn under them, but rather as agreements 28C1. Letters of credit either general or ftpecicd. Sec. 28G1. A letter of credit is either general or special. "WTien the request for credit in a letter is addressed to specified persons by name or description, the letter is special. All other letters of credit are general. Addressed to a specified person. — Al- prudence and discretion in acting upon it: though tlie letter lie addressed to one person, if Darns v. Barrow, 01 N. Y. 30. it is witli the design that it be shown toothers A letter addressed to a firm which has ceased w hether that otLier person be ascertained, to exist will not authorize a former member of JJrvvnnond v. Pre-^tman , 12 Wheat. 515, or it the linn to act upon it: I'enoyer \\ Watson, 10 is intended as a general letter of credit, it will Johns. 100; see Snii/h v. Mout'/oriieri/, V> Tex. be consUiicd in accordance witli the intention 193. Bat a letter addressed to A. & B., l)ut in of the guarantors, and when the prondsecs, fact intended for A. B. & Co., may be acted reasouL.ldy embraced under the letter, have upon by the latter: Wad-iworth v. Allen, 8 acted upiiu it in good faich, tlie guarantors will Gratt. 174. hi held bound: Lonsdale v. Lifai/eite Bank, IS A guaranty addressed to a state bank is not Ohio, 12. i; IJcnedict v. Sherrdl, Hi.l & D., terminated by the cliange of Ihe domestic cor- Salop's Supp. 219; Griffin v. Bembcrf, 2 Uieh., poration into a national b:ink, and l)y the eon- N. S., 410; see Lon^ry v. Adams, 22 Vt. 100; sequent change of tiie name of the corporation: Brandt (Jnar. & Sur., wc. 9o. Clly Nat. Bank v. Phelp", 10 Hun, 158. A letter of credit addressed to a particular Credit to correspond witli terms of tlie person is limited to lum; the writer must be letter; ISee sec. 2S00, post. deemed to have granteil it in reliance on Lis 2862. Nature of gp.ncral letter of credd. Si:c. 28G2. A general letter of credit gives any person to whom it may be shown authority to compiy wich itct reqaest, and ay hiS so doing it becomes, aa tn him of the same '-ffec< as i^ addressed to him by name. "When advanjes aie made l>y any person BirrkliraU v. lirriwn., 5 hill, 6*1; Griffin v, to whom a general letti.-r i'5 shown, a privity of lic.ni'icrl, 2 S C. 410; Pollock v. Utlm, 54 MiiiS. contract immediately arises: Union B'lnk v. I; ICa/w/. v. McLaren, 19 Weud. 557; S. C, C7o.s.'''/-'.s- Ex\-% 3 N. Y. 20.5; /.'(t.s,sc'// v. Wijftns, '26 Weud. 425. 2 Story, 214, Adams v. Jones, 12 Pet. 207; 4Sj §§ CSG3-2SC6 OELIGATIONS. [Div. Ill, Part IV, 2S63. Extent of gcnend letter of credit. Sec. 28G3. Several persons may successively give credit upoa a general letter. See note, sec. 28G2, ante. 2834. A letter of credit may he a continuing guaranty. Sec. 28G4. If the jDarties to a letter of credit appear, by its terms, to con- template 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 reduced or satisfied by payments made by the debtor, but it is to be deemed a continuing guaranty. See note, sec. 2814, ante; Gates v. McKee, 13 N. Y. 232. 2865. When notice to the writer necessary. Sec. 2865. 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. ITotice of acceptance of letter of credit The rule deduced from the authorities by Mr. Parsons is, that where there is a guaranty for future operations, perhaps for one of uncertain amount, there should be a distinct notice of acceptance: 2 Parsons on Cent. 13. Another author says: " Where the obligation attaches to'future transactions, there is a con- troversy which remains undetermined; with t'.ie United States courts, and those of one or two New England states on one side, and the courts cjf England, New York, and several other states of the Union on the other. 'Where, liov/cver, the undertaking is absolute in its terms, to pay unless the principal obligation is fullilled, and there is a limit both as to time and amount, the weight of autiiority" binds thing in the nature of the contract or terms of the writing creating or implying tiie necessity of acceptance or notice as a condition of lialjil- ity, iieichcr are deemed requisite, and such is believed to be the rule of the English courts." In this case, it will be noticed, the amount was indefinite: See extract from Wade on Kouice, supra. "If you letA. have one hundred dollars' worth of goods on credit of tiiree months, you may regard me as guaranteeing the same" — no notice requisite: Smith v. Dann, G Hill, 543. When absolute in its terms, no notice requi- site: Union Bank v. Co^tir's L'x'rs, 3 N. V. 1.04; Sec also Dou(jler Story, J.; for other an ty or of the sale and delivery of the goods cases cotra, see Baylies Guar. & Sur. 196; under it. It is not a continuing guaranty: Brandt Guar. & Sur., sees. 158, 159 et seq. ; Whitney V. Groat, 24 Wend. 81. wherein the Wade on Notice, sees. 392 et seq. court said: "It [the letter] was not a ] roposi- In order to do away with the necessity of tion to become surety for Van Eps, but an notice, the letter must contain no prerecjuisito absolute undertaking to pay for the goods if he conditions. It must be absolute. Cases cited did not, and obviously contemplated a sale and supra. delivery on presentatit)u. Unless there is some- 2833. The credit given must agree with the terms of the letter. Sec. 286G. 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. Seclion followed in Dod'je v. Meyer, Gl Cal. tion is as to the construction or meaning which 405, 439. shall be given to the terms which have been Coustniction should b3 reasonabla and used in tlio instrument, "Ave should ne\cr for- libsral. The surety or guarantor should nut get that letters of guaranty are commercial in- beheld beyond the precise stipulations of his strunients, generally draw n up l;y merclKiuts ia contract: Sec. 2S!]j, «/(/e. And lie has aiiglit brief hiiiguage, sometimes inartiticial, and often to insist up(m the exact pciformance of any loose in their structuie and aim; and to con- condition for wiiicji he has stipulated, whether strue the words of such instruments witli a others would consider it material or not: Gates nice and technical care would not only defeat T. McKee, 13 N. Y. 232. But when the ques- the intention of the parties, but render theia 4SS Title XIV, Chap. I.] LIENS IN GENEP.AL. §5 2S72-2874 too Tinsafe a basis to rely on for extensive cred- If amount of rrfdU u llmttyd, party advanc- its, so otten souglit in the present active bus!- ing on faith of th*; letter is bound iit his peril iiess of commerce throughout the workl:" to ascenaiu wheLiier the authority conferred judgmeiitonaicasonableiuterpretation: Seenote Leeda x. Dunn, ION. Y. 475. to sec. 2So7, aide, "llatiouallntcrpretutiou." TITLE XIV. LIEN. CJhapter I. LiExs IN General 2872 II. Mortgage 2920 III. Pledge 208G IV. Bottomry , . , . 3017 V. IIerpoxdentl^ 303(5. VI. Other Liens 304G VII. Stoppage in Transit 3076 *' Altliough tlie arrangement of this subject and, under the provisions of this code, nothing is novel, its propriety and advantages will be more. They arc suhject, tiierefore, to all the perceived at a glance. Mortgages arc liens, general rules of liens:" Commisbioners' note. CHAPTER L LIENS IN GENERAL. Article I. Definition' of Liens 2872 II. Ckkation of Liens 2SS1 III. Efkkct of L[p:ns 2SS3 IV. Pkioujty of Liens 2897 V. Redemption from Liens 2903. VI. Extinction of Liens 2909 ARTICLE I. definition of liens. 2872. Lien, ivhxd. Sko. 2872. A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made securit^'for the performance of an act. \ Amend iiienl, approved February 15, 1878; Amendments 1877-8, 88; took ejl'evl xirlu'/li day after passage.] DsSnltion. — A lien is a simple right to pos- " There is here preserved under one name sess or letaai a certain piece of personal prop- both the common law and the oi|uital)lo litms, erty or cluittil until some charge attaching to and under oue liea 1 all the general principlea it is |):ud and discharged, or a mere right to which alFect lieus l)y possession or mortgage: maintain a suit In mn to enforce payment of See sec. 1 ISO, CodeCiv. Proo. :" From comuiia* the charge: Overton's Law of Liens, \. sioners' note, 2873. Liens, general or special. Sec. 2873. Liens are either general or special. 2374. General lien, ivhat. Sec. 2874. A general lien is one which the hohler thereof is entitled to en- force as a security i'or the performance of all the obligations, or all of a partic- ular class of obligations, which exist in his favor against the owner of the^ property. 487 §§ 2S75-2883 OBLIGATIONS. [Div. Ill, Taut IV, Who entitled to The general lien existed and not otherwise: Weeks on Attorneys, see. at first only by contract, hut ^^as afterwards .STl; Uotrlijuj Orren SachifjH Dank\. Todd, o2 allowed to be claimed by implication from tlie N. Y. 491; DciivHt v. o. eral liens are regarded as an innovation upon Insurance brokers have been held, from the the comi^.ou law, and are not regarded with usage of this kind of brokerage, to liave a lien favor by the courts; 3 Parsons on Cont. 2.'>5, for their general l)alance upon the policies which 23'); Mrliit;ire v. Carver, 37 Am. Dec. 519, note are intrusted to them, in order to enaldo them -522; Overton's Law of Liens, 1(1-17. to adjust losses on such policies: Wharton on Attorneys at la^w liave both a particular or Agency, sec. 707; lUi^isell on Factors, 194; pneeial and a general lien; but whereas tiie S/irini/ v. Iiisuraiice Co., 8 Wheat. 2d;i; Crans- f:r.;t, being for labor bestowed and money ex- ton v. Iii>itiranre Co., 5 Binn. 538; Moody v. ])ended only upon one transaction, attaches not Webster, 3 Pick. 454; see Jarc'm v. Hojers, 15 only Tijiiin the papers and documents coming J\las.s. 3;Ki. into tlu-ir hands in the course of the transac- Factors. — Usage of trade usually gives fac- tion, but also upon the fruits of the judgment tors a general lien, which is establiahed in tiiia or decree which their exertions have obtained, state by section 30J3, post. Weeks on Attorneys, aecs. 3G8, 309, tlie gen- Banker: Sec. 3054, j^o.^t. tral lien, being for tlie balance due the:n for Master of ship: .Sec. 3055, ;ws<. ])rofessioiial services, usually attaches only to IJate and scauieu: Sec. ."O.iG, poxt. the papers and documents which come into Lien for services: See sec. 3051, ^jOS<. their possession in their professional capacity, 2875. Sppcial lien, xoliat. Sec. 2875. A special lien is one whicli tlie bolder thereof can enforce only as security for the performance of a particular act or obligation, and of such obli- gations as may be incidental thereto. Incidental thereto: See next section. 2876. Prior liens. Sec. 287G. Where the holder of a special lien is compelled to satisfy a prior lien for his own protection he may enforce payment of the amount so paid by liim as a part of the claim for which his own lien exists. To the same effect: liobingon v. Jtyan, 25 N. Y. 320. 2877. Contracts subject to provisions of this chapter. Sec 2877. Contracts of mortgage, pledge, bottomry, or respondentia, are subject to all the provisions of this chaj)ter. ARTICLE II. CREATION OF LIEN'S. 2831. Lien, how created. Sec. 2881. A lien is created: 1. By contract of the parties; or, 2. By operation of law. Classification. — "Liens exist by common or by express agreement of parties: " 3 Parsoua law, or are created either by usage, by statute, on Cont. 238. 2382. Ko lien for claim not due. Sec 2882. No lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed. 2883. Lien on future interest. Sec 2883. An agreement may oe made to create a lien upon property not 3'et acquired by the party agreeing to give the lien, or not yot in existence. In Buch case the lien agreed for attaches from the time when the party agi'ceing to give it acquires an interest in the thing, to the extent of sut^h interest. 4S8 Title XIV, Chap. I.] LIEXS IN GENERAL. §§ 2884-2888 create a lion upon personal property thereafter to be ac(]uire(l l>y him, the lien, iu equity, at- taches upon the particular property as soon a3 the person so contracting acquires the title thereto. Ilcnco, a c"si^t cf partioular l:ind'3 to be acipiii'cd VI J'litxm is valid, ami takes effect as a specilic lisii upon the lands as soon rs they are acquired. In Bihend v. L. 3; ]Vllziii-' Md. 4.)5; JSos- securc future advances. The decision, there- ivell v. Goodioin, 31 Conn. 74; lirinhneyer v. fore, thoug'i imide in general terais, is, when Browne'lcr. 55 Ind. 487; Brinknieyer v. Ilel' interpreted by the ]iarticular facts of the case, binject, and to make all mortgages mere liens when tliemortgagorsnl^stypTeatljracquirpa title, ib inures to the mortgagee: Sec. 2.);]:), post; Vallcjo Land Ass'ii v. Vkni, 48 Cal. u72. Pracliral. — 1. Comnionl iw view. — Mort- gagee is entitled to immediate possession unless restrained by the terms of the mortgage, and upon default Jie is always entitled to possession, and may recover it by an action at law. Lip>i theory. — Mortgagee is not entitled tc upon pi-operty. Tlie propriety of the rule in possession until foreclosure ami sale unless by respc'.:t to other liens will hardly be ques tioncd;" Commissioners' statement. DilTeren^es, theoretical and practioal, b3tween modern, commmon-law, and lien tlieori3.3 of mortgages. — Theoretical. — Both 63'stcms are incongruous r.nd incorsistcnt: Jones on r^Iortgages, sec. 14; Wlute v. Rltlenmeyer, 30 Iowa, ."71. Common-law view. — The mortgagee is re- garded as the owner of the legal estate for tlie purpose of protecting and enforcing his riglits. The mortgagor is regarded as legal owner as against every other person. At law the mortgagee is the legal owner; in equity the mortgagor is the legal owner. Although the legal tiJe has passed to the mortgagee, it may be defeated liy act of the grantor, /. e., pay- ment at or before the maturity of the debt (law od. Tliis is the main distinction, from wliich the following may result: 2. At common law, tender or payment, to de- feat the mortgagee's title, must be made at or before law day, as the day of payment is ternied. Under the lien t'leory, tender even after law day but before foreclosure, and payment at any time, discharges the mortgage hen. But in this fatate the tender, to discharge t!ie mortgage lien, must be made at or before law day. Sec this dia- cusseil at length in note to section 2905, pod. 3. At common law, a transfer of tlio mortgage interest can only be made by an assignment or deed duly executed as a con^'eyance. Under the lien theory, a mere transfer of the mortgage note by indorsement or delivery passes the mortgage lien: Sec. 203G, ;'0s<. The follo'wms states and territories have adopted the liea theory of mortgages: California, Dakota Territory, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, ^lichigan, Minnesota, Montana Territory, Nebraska, Ne- vada, New Mexico, New York, Oregon, South Carolina, Texas, Utah Territory, Washington Territory, and Wisconsin. In California, Iowa, Kansas, and Nevada the statutes imply tliat the parties may by express stipulation give the right of possession to the mortgagee: Sec. 2927, post; Jones on Mortgages, generally be ejected until the debt is paid, or sees. 14, 15, 58, 59, 2389. Certain contracts void. Sec. 2889. All contracts for the forfeiture of property subject to a lien, in satisfaction of tbe obligation secured thereby, and all contracts in restraint of the right of redemption from a lien, are void. "This 13 a well-settled rule in relation to the ri'ht of an owner of a thing found to ex- a mortgage: See Clark v. llenrn, 2 Cow. 324; IloUridje v. Gillespie, 2 Johns.' Cli. 30; Rem- sen V. I/ny, 2 Edw. 5:i5; Palmer v. Cnrnscy, 7 Wend. 248. The general maxim of jurispru- dence ajjplicable to such cases is, 'once a mortgage, always a mortgage: ' Lee v. Lvins, 8 Cal. 424; 2 C>w. .324; 1 "Yeates, 58 1; com- pare Billy. Mayor etc. of New York, 10 Pai','e, 41), 5G; Burns v. Xevlns, 27 Barb 493, 503. The rule also applies to a pledge: Code Napo- leon, sec. 2078; Lucletts v. Townsend, 3 Tex. 119. Sloher v. Cogxivdl, 2.5 How. Pr. 2G7, is a strong case upon this rule. This beneficent princi]ile doubtless governs in all cases of liens, and the commissioners have felt no hesitation in giving it in this place as a universal rule. They have omitted the qualifying words of onerate himself from all the claims of a finder by surrendering to the tinder the proiierty found. See sec, 1871, ante:" Commissiouera' note. In support of the proposition mentioned in the above note, that a mortgagor may make a bonaf !e .sale of his property to the mortgagee, the following are authorities: /rt/is v. Conway Mutual F. Ins. Co., 7 Allen, 4(3; Venninn v. Lalirork, 13 Iowa, 194; Pr'drhard v. Eton, 38 Conn. 434; Wyncoop v. Cowinij, 21 111. 570; MarsliaH v. Stewart, 17 Ohio," 350; Ode:l v. I\Iontros.-i, 6 Hun, 155; S. C, (18 N. Y. 499; Shaw v. Walbridge, 33 Ohio .St. 1; Lhinelt v. L'ford, 72 :Me. 280. In Oreen v. Bnllcr. 26 Cil. GJl, the court, per Sawyer, J., said: But tliere can be no dou1)t that a mortgagee some of the decisions, which im])ly that an can make a io/ia/Je purchase of the ecjuity of agreement in restraint of redemption maybe ' " made siib-eciuently to the execution of a mort- gage, inasmuch as such a qualiiication, if it is a correct statement of the law (which is at least extremdy doubtful), is certainly not de- sirable. Of course a mortgagor may sell his property to the mortgagee, l)ut the transaction must be a genuine sale, and not a forfeiture. This section, however, is not intended to deny Sylvester, 3 Nev. 228 400 redemption — if indeed we may use these terms in the present condition of the law as to mort- gages in this state — and thereby acquire aa ab^oluTe title." Pledge. — The parties may, at a time subse- quent to the pledge, make a hona J/'de .and just agfcement that the creditor shall take the pledge in satisfaction of the debt: lieatly v. Title XIV, Chap. I.] LIENS IN GENERAL. §§ 2S90-2S9S 2800. Creation of lien doeft not impl)/ prTf