r B \\%3 ^y W/ Hft. THE 3- CIVIL CODE -" OF THE STATE OF CALIFORNIA, AS ENACTED IN 1572, AMENDED At SUBSEQUEN^T SIGNS, AND ADAPTED TO THE CONSTITUTION OF 1879; AND AN APPENDIX OF GENERAL^-. LAWS UPON THE SUBJECTS EM- J BRACED IN Tge-CODE— '// COMPILE JAMES H. D SAN FRANCISCO: BANCROFT-WHITNEY COMPANY. 1899. COPTKIGHT, 1899, BTf BANCROFT-WHITNEY COMPANY. Sax Franxisco: The Filmer-Rolliks Electrotype Company, Typographers and Stereotypers. CONTENTS. Division i irst. sections TART I. PERSONS 25-42 II. PERSONAL RIGHTS 43-50 III. PERSONAL RELATIONS 55-276 Title I. Marriage 55-181 Chapter I. The contract of marriage. 55-80 II. Divorce 82-148 III. Husband and wife 155-181 Title II. Parent and Child 193-230 Chapter I. By birth 193-211 II. By adoption 221-230 Title III. Guardian and Ward 236-258 IV. Master and Servant 264-270 PART IV. CORPORATIONS 283-643 Title I. General Provisions Applicable to all Corporations 283-403 Chapter I. Formation of corporations 283-320 II. Corporate stocli 322-349 III. Corporate powers 354-393 IV. Extension and dissolution of corporations 399-403 Title II. Insurance Corporations 414-448 Chapter I. General provisions 414-420 II. Fire and marine insur- ance corporations 424-431 III. Mutual life, health, and accident insurance cor- porations 437-452 IV. CONTENTS, sections Title III. Railroad Corporations 454-491 Chapter I. Officers and corporate stocli 454-459 II. Enumeration of powers . . 465-478 III. Business, liow conducted . 479-491 Title IV. Street Railroad Corporations. 497-511 V. Wagon Road Corporations... 512-523 VI. Bridge, Ferry Wharf, Chute, and Pier Corporations 528-531 VII. Telegraph Corporations 536-541 VIII. Water and Canal Corpora- tions 548-552 IX. Homestead Corporations .... 557-566 X. Savings and Loan Corpora- tions 571-579 XI. Mining Corporations 584-587 XII. Religious, Social, and Benev- olent Corporations 593-602 XIII. Cemetery Corporations 608-614 XIV. Agricultural Fair Corpora- tions 620-622 XV. Gas Corporations 628-632 XVI. Land and Building Corpora- tions 639-648 XVII. Colleges and Seminaries of Learning 649-651 XVIII. Consolidation of Colleges and Institutions of Higher Edu- cation 652-653 Division Second. PART I. PROPERTY IN GENERAL . . 654-749 Title I. Nature of Property 654-663 II. Ownership 669-742 Chapter I. Owners 669-672 II. Modifications of owner- ship 678-726 ~ CONTENTS. V. sections Chapter III. Rights of owners 732-733 IV. Termination of ownership. 739-742 Title III. General Definitions 748-749 PART II. REAL OR IMMOVABLE PROPERTY 755-940 Title I. General Provisions 755 II. Estates in Real Property 761-811 Chapter I. Estates in general 761-781 II. Termination of Estates... 789-793 III. Servitudes 801-811 Title III. Rights and Obligations of Owners 818-841 Chapter I. Rights of owners 818-834 II. Obligations of owners 840-841 Title IV. Uses and Trusts 847-871 V. Powers (repealed). PART III. PERSONAL OR MOVABLE PROPERTY 946-994 Title I. Personal Property in General. 946-947 II. Particular Kinds of Personal Property 953-994 Chapter I. Things in action 953-954 II. Shipping 960-973 III. Products of the mind 980-985 IV. Other liinds of personal property 991-994 PART IV. ACQUISITION OF PROP- ERTY 1000-1422 Title I. Modes in which Property may be Acquired 1000-1001 II. Occupancy 1006-1007 III. Accession 1013-1033 Chapter I. To real property 1013-1019 II. To personal property . . 1025-1033 Title IV. Transfer 1039-1231 Chapter I. Transfer in general 1039-1085 VI. CONTENTS. sections Chapter II. Transfer of real prop. erty 1091-1115 III. Transfer of personal property 1135-1153 IV. Recording transfers of real property 1158-1217 Y. Unlawful transfers 1227-1231 Title V. Homesteads 1237-1269 Chapter I. General provisions 1237-1261 II. Homestead of the head of a family 1262-1265 III. Homestead of other persons 1266-1269 Title VI. Wills 1270-1377 Chapter I. Execution and revoca- tion of wills 1270-1313 II. Interpretation of wills. . 1317-1351 III. General provisions relat- ing to wills 1357-1377 Title YII. Succession 13S3-1408 VIII. Water Rights 1410-1422 IX. Hydraulic mining 1424-1425 Division Third. PART I. OBLIGATIONS IN GEN- ERAL 1427-1543 Title I. Definition of Obligations . . . 1427-1428 II. Interpretation of Obligations. 1429-1451 Chapter I. General Rules of Inter- pretation 1429 II. Joint or several obliga- tions 1430-1432 III. Conditional obligations. 1434-1442 IV. Alternative obligations.. 144S-1451 Title III. Transfer of Obligations . . . 1457-1467 IV. Extinction of Obligations. . 1473-1543 CONTENTS. VII. sections Chapter I. Performance 1473-1479 II. Offer of performance... 1485-1505 III. Prevention of perform- ance or offer 1511-1515 IV. Accord and satisfaction. 1521-1524 V. Novation 1530-1533 VI. Release 1541-1543 PART II. CONTRACTS 1549-1701 Title I. Nature of a Contract 1549-1615 Chapter I. Definition 1549-1550 II. Parties 1556-1559 III. Consent 1565-1589 IV. Object 1595-1599 V. Consideration 1605-1615 Title II. Manner of creating Con- tracts 1619-1629 III. Interpretation of Contracts. 1635-1661 IV. Unlawful Contracts 1667-1676 V. Extinction of Contracts . . . 1682-1701 Chapter I. Contracts, how extin- guished 1682 II. Rescission 1688-1691 III. Alteration and can- cellation 1697-1701 PART III. OBLIGATIONS IMPOSED BY LAW 1708-1715 PART IV. OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS 1721-3268 Title I. Sale 1721-1798 Chapter I. General provisions 1721-1741 II. Rights and obligations of the seller 1748-1778 III. Rights and obligations of the buyer 1784-1786 IV. Sale by auction 1792-1798 VIII. CONTENTS. " " sections Title II. Exchange 1804-1807 III. Deposit 1813-1878 Chapter I. Deposit in general 1813-1827 II. Deposit for lieeping 1833-1872 III, Deposit for exchange... 1878 Title lY. Loan 1844-1920 Chapter I. Loan for use 1844-1896 11. Loan for exchange 1902-1906 III. Loan of money 1912-1920 Title V. Hiring 1925-1959 Chapter I. Hiring in general 1925-1935 II. Hiring of real property. 1941-1950 III. Hiring of personal prop- erty 1955-1959 Title YI. Service 1965-2079 Chapter I. Service with employ- ment 1965-2003 II. Particular employments. 2009-2072 III. Service without employ- ment 2078-2079 Title YII. Carriage 2085-2209 Chapter I. Carriage in general 2085-2090 II. Carriage of persons 2096-2104 III. Carriage of property. . . . 2110-2155 lY. Carriage of messages . . 2161-2162 Y. Common carriers 2168-2209 Title YIII. Trust 2215-2289 Chapter I. Trusts in general 2215-2244 II. Trusts for the benefit of third persons 2250-2289 Title IX. Agency 2295-2389 Chapter I. Agency in general 2295-2356 Paiiicular agencies 2362-2389 Title X. Partnership 2395-2520 Chapter I. Partnership in general. . 2395-2418 II. General partnership . . . 2224-2471 III. Special partnership .... 2477-2510 lY. Mining partnership .... 2511-2520 CONTENTS. IX. sections Title XI. Insurance 2527-2766 Chapter I. Insurance In general . . 2527-2649 II. Marine insurance 2655-2746 III, Fire insurance 2752-2756 IV. Life and health insur- ance 2762-2766 Title XII. Indemnity 2272-2781 XIII. Guaranty 2787-2866 Chapter I. Guaranty in general . . . 2787-2825 II. Suretyship 2831-2866 Title XIV. Lien 2872-3080 Chapter I. Liens in general 2872-2918 II. Mortgage 2920-2971 III. Pledge 2986-3011 IV. Bottomry 3017-3029 V. Respondentia 3036-3040 IV. Other liens 3046-3060 VII. Stoppage in transit 3076-3080 Title XV. Negotiable Instruments... 3086-3262 Chapter I. Negotiable instruments in general 3086-3165 II. Bills of exchange 3171-3238 III. Promissory notes 3244-3248 IV. Checks 3254-3255 V. Banlv notes and certifi- cates of deposit 3261-3262 Title XVI. General Provisions 3268 Division Fourth. PART I. RELIEF 3274-3423 Title I. Relief in general 3274-3275 II. Compensatory Relief 3281-3360 Chapter I. Damages in general.... 3281-3294 II. Measure of damages 3300-3360 Title III. Specific and Preventive Re- lief 3366-3423 X. CONTENTS. sections Chapter I. General principles 3366-3369 II. Specific relief 3375-3414 III. Preventive relief 3420-3423 PART II. SPECIAL RELATIONS OF DEBTOR AND CRED- ITOR 3429-3473 Title I. General Principles 3429-3433 II. Fraudulent Instruments and Transfers 3439-3442 III, Assignments for the Benefit of Creditors 3449-3473 PART III. NUISANCE 3479-3503 Title I. General Principles 3479-3484 II. Public Nuisances 3490-3495 III. Private Nuisances 3501-3503 PART IV. MAXIMS OF JURISPRU- DENCE 3509-3543 CONTENTS. XI. SUMMARY OF CONTENTS. sections PRELIMINARY PROVISIONS 2- 21 DIVISION I. RELATING TO PER- SONS 25-648 Part I. Persons 25- 42 II. Personal Rights 43- 50 III. Personal Relations 55- 276 IV. Corporations 283- 648 DIVISION II. RELATING TO PROP- ERTY 654-1422 Part I. Property in General 654- 749 II. Real Property 755- 940 III. Personal Property 953- 994 IV. Acquisition of Property 1000-1422 DIVISION III. RELATING TO OBLI- GATIONS 1427-3208 Part I. Obligations in General 1427-1543 II. Contracis 1549-1701 III. Obligations Imposed by Law 1708-1715 IV. Arising from Particular Transactions 1721-3268 DIVISION IV. GENERAL PROVI- SIONS RELATING TO THE PRECED- ING PROVISIONS.. 3274-3543 I'art I. Relief 3274-3423 II. Relations of Debtor and Creditor 3429-3473 III. Nuisance 3479-3503 IV. Maxims of Jurisprudence.. . 3509-3543 THE CIVIL CODE OF THE STATE OF CALIFORNIA, IN FOUR DIVISIONS. 1898 THE CIVIL CODE OF THE STATE OF CALIFORNIA. AN ACT TO ESTABLISH A CIVIL CODE. [Approved March 2ist, 1872.] The People of the State of California, represented In Senate and Assembly, do enact as follows: TITLE OP THE ACT. § 1. This act shall be known as The Civil Code of the State of California, and is in Four Divi- sions, as follows:— r. The First relating to Persons. II. The Second to Property. III. The Third to Obligations. IV. The Fourth contains General Provisions re- lating to the three Preceding Divisions. Act how cited: See sec. 21, post. §§ 2-4 PRELIMINARY PROVISIONS. PRELIMINARY PROVISIONS. § 2. When this Code takes effect, § 3. Not Retroactive. § 4. Rules of construction. § 5. Provisions similar to existing laws, how construed. § 6. Actions, etc., not affected. § 7. Holidays. § 8. Same. § 9. Business days. § 10. Computation of time. § 11. Certain acts not to be done on holidays. § 12. Joint authority construed. § 13. Words and phrases, how construed. § 14. Certain terms defined. § 15. Good faith, what constitutes. (Repealed.) § 16. Degrees of care and diligence. (Repealed.) § 17. Degrees of negligence. (Repealed.) § 18. Notice, actual and constructive. § 19. Constructive notice, when deemed. § 20. Effect of repeal. § 21. This Act, how cited. § 2. This Code takes effect at twelve o'clock noon on the first day of January, eighteen hun- dred and seventy-three. Effect of codes generally: See sees. 4478 et seq. of the Polit. Code. Similar provision in other Codes of California: See sec. 2 thereof. Effect of this Code: See subsequent sees. 3-19, inclusive, and see those sections as found in the Polit. Code. Publication of the Codes: See sec. 4494 of the Polit. Code. § 3. No part of it is retroactive, unless expressly so declared. § 4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code estab- lishes the law of this State respecting the subjects 5 PRELIMINARY PROVISIONS. §§ 5, 6 to which it relates, and its provisions are to be lib- erally construed with a view to effect its objects and to promote justice. Effect of Codes generally: See sees. 4478 et seq. of the Polit. Code. § 5. The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continua- tions thereof, and not as new enactments. § 6. No action or proceeding commenced before this Code tal^es effect, and no right accrued, is af- fected by Its provisions. Effect of Codes: See Code Civ. Proc, sec. 8; Polit. Code. sec. 8. The amendatory act of March 30, 1874, Amend- ments 1873-4, 181-269, from which most of the amendments and new sections of the Civil Code are talien. contained three additional sections, re- lating to its eff'ect, as follows: The amendatory act of 1874 containcid the fol- lowing provision: Sec. 2S6. All provisions of law inconsistent with the provisions of this act are hereby repealed, but no rights acquired or proceedings taken under the provisions repealed shall be impaired or in any manner affected by this repeal; and whenever a limitation or period of time is prescribed by such repealed provisions for acquiring a right or bar- ring a remedy, or for any other purpose, has be- gun to run before this act takes effect, and the same or any other limitation is prescribed by this act, the time of limitation which shall have run when this act takes effect shall be deemed part of the time prescribed by this act. Effect of amendatory act as to other acts passed at session of 1871-2 is shown by the following pro- vision: Sec. 287. With relation to the laws passed at §§ 7-9 PRELIMINARY PROVISIONS. 6 the present session of the legislature, this act must be construed as though it had been passed at the first day of the present session; if the provisions of any law passed at the present session of the legislature contravene or are inconsistent with the provisions of this act, the provisions of such law must prevail. Sec. 288. This act shall take effect on the first day of July, one thousand eight hundred and sev- enty-four. § 7. Holidays, within the meaning of this Code, are every Sunday, the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the first Monday of September, the twenty-fifth day of December, every day on which an election is held throughout the State, and every day appointed by the President of the United States, or by the Governor of the State, for a public fast, thanksgiving, or holiday. If the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, or the twenty-fifth day of December shall fall upon a Sunday, the Monday following is a holiday. [Ap- proved February 23, 1897, ch. XVIII.] This section was also amended in 1893; Stats. 1893. p. 186. Holidays, when counted: See sec. 11. § 8. If the first of January, the twenty-second of February, the fourth of July, or the twenty- fifth of December falls upon a Sunday, the Mon- day following is a holiday. § 9. All other days than those mentioned in the last two sections are to be deemed business days for all purposes. See sec. 11. 7 PRELIMINARY PROVISIONS. §§ 10-14 § 10. The time iu which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded. i*ime, how computed, and year, week, and day denned: See sees. 3255 et seq. of Polit. Code. The Supreme Court is always open for the trans- action of business: Sec. 134, Code Civ. Proc. § 11. Whenever any act of a secular nature, other than a work of necessity or mercy, is ap- pointed by law or contract to be performed upon a particular day, which day falls upon a holiday, it may be performed upon the next business day with the same effect as if it had been performed upon the day appointed. Compare with sec. 9, supra. § 12. Words giving a joint authority to three or more public officers or other persons are con- strued as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. § 13. Words and phrases are construed accord- ing to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or defi- nition. Words and phrases, how construed.— The above is the general rule with regard to the construction of words, whether in contracts, statutes, or con- stitutions. The meaning to be given to words in contracts is provided for in this Code, sees. 1644, 1645, and in the Code of Civil Procedure, sec. 1861. § 14. Words used in this Code in the present §§ 15-18 PRELIMINARY PROVISIONS. g tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural and the plural the singular; the word person includes a corporation as well as a natural person; writing includes printing; oath includes affirmation or declaration; and every mode of oral statement under oath or affirmation is embraced by the term "testify," and every written one in the term "depose"; signature or subscription in- cludes mark, when the person cannot write, his name being written near it, and written by a person who writes his own name as a witness. The following words also have in this Code the signification attached to them in this section, un- less otherwise apparent from the context: 1. The word "property" includes property real and personal; 2. The words "real property" are coextensive with lands, tenements, and hereditaments; 3. The words "personal property" include money, goods, chattels, things in action, and evi- dences of debt; 4. The word "month" means a calendar month, unless otherwise expressed; and, 5. The word "will" includes codicils. [Amend- ment approved March 30, 1874; Amendments 1873-4. 181= In effect July 1. 1874. J Words used in boundaries are defined in sees. 3903 to 3907 of the Tolit. Code. §§ 15, 16, 17. [Repealed March 30, 1874; Amendments 1873-4, 182. In effect July 1, 1874.] § 18. Notice is: 1. Actual— which consists in express informa- tion of a fact; or, 2. Constructive— which is imputed by law. 9 PRELIMINARY PROVISIONS. §§ 19-21 § 19. Every person who has actual notice of circumstances sufficient to put a prudent man up- on inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact. [Amendment approved March 30, 1874; Amendments 1873-4, 182. In efeect July, 1874.] Constructive notice — Recording instruments: See, post, sec. 1218. § 20. No statute, law, or rule is continued in force because it is consistent with the provisions of this Code on the same subject; but in all cases provided for by this Code, all statutes, laws, and rules heretofore in force in this State, whether consistent or not with the provisions of this Code, unless expressly continued in force by it, are re- pealed or abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any ac- tion or proceeding already taken, except as in this Code provided. Statutes continued in force: See sec. 19 of the Polit. Code and Penal Code, and Statutes in Force. Vested rights: See sec. 6. § 21. This act, whenever cited, enumerated, re- ferred to, or amended, may be designated simply as "The Civil Code," adding, when necessary, the number of the section. Title of the act: See ante, sec. 1. DIVISION FIRST. Part I. Persons, §§ 25-42. II. Personal Rights, §§ 43-50. III. Personal Relations, §§ 55-276. IV. Corporations, §§ 283-648. PART I. PERSONS. § 25. Minors, who are. § 23. Periods of minority, how calculated. § 27. Adults, who are. § 28. Status of minors, how changed. (Repealed.) § 29. Unborn child. § 30. Persons made adults by other states, considered as such In this state, when domiciled herein. (Re- pealed.) § 31. Minors by the laws of other State or country, how considered in this State. (Repealed.) § 32. Custody of minors. § 33. Minors cannot give a delegation of power. § 34. Contracts of minors made; disaffirmed. § 35. When minor may disaffirm. § 36. Cannot disaffirm contract for necessaries. § 37. Nor certain obligations. § 38. Contracts of persons without understanding. § 39. Contracts of other insane persons. § 40. Powers of persons whose incapacity has been ad- judged. § 41. Minors liable for wrongs, but not liable for exemp- lary damages. § 42. Minors may enforce their rights. § 25. Minors are: 1. Males under twenty-one years of age; 2. Females under eighteen years of age. § 26. The periods specified in the preceding section must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority. § 27. All other persons are adults. § 28. [Repealed March 30, 1874; Amendments 1873-4, 182. In effect July 1. 1874.1 Civ. Cofle— 2 §§ 29-35 PERSONS. * 14 § 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 subsequent birth. See also sections 1337 and 1339, posthumous children taking under will. §§ 30, 31. [Repealed March 30, 1874; Amend- ments 1873-4, 182. In effect July 1, 1874.] § 32. The custody of minors and persons of unsound mind is regulated by Part III of this division. § 33. A minor cannot give a delegation of power, nor under the age of eighteen, malie a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control. [Amend- ment approved March 30, 1874; Amendments 1873-4, 182. In effect July 1, 1874.] § 34. A minor may make any other contract than as above specified, in the same manner as an adult, subject only to his power of disaffirm- ance under the provisions of, this title, and sub- ject to the provisions of the titles on Marriage, and on Master and Servant. [Amendment ap- proved March 30, 1874; Amendments 1873-4, 183. In effect July 1, 1874.] Marriage: See sees. 55 et seq. Master and servant: See sees. 264 et seq. § 35. In all cases other than those specified in sections thirty-six and thirty-sev^n, the contract of a minor, if made whilst he is under the age of eighteen, may be disaffirmed by the minor him- self, either before his majority or within a rea- sonable time afterwards: or. in case of his death within that period, by his heirs or personal rep- resentatives; and if the contract be made by the minor whilst he is over the age of eighteen, it 15 PERSONS. §§ 36-40 may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received, or paying its equivalent. [Amendment approved March 30, 1874; Amendments 1873-4, 183. In effect July 1, 1874.] § 36. A minor cannot disaffirm a contract, oth- erwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them. [Amendment approved March 30. 1874; Amendments 1873-4, 183. In effect July 1, 1874.] 8 37. A minor cannot disaffirm an obligation, otherwise valid, entered into by him under the express authority or direction of a statute. § 38. A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family. [Amendment approved March 30, 1874; Amendments 1873-4, 183. In ef- fect July 1, 1874.] § 39, A conveyance or other contract of a per- son of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescis- sion, as provided in the chapter on Rescission of this Code. [Amendment approved March 30, 1874; Amendments 1873-4, 184. In effect July 1, 1874.] See post, sec. 1550. § 40. After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power, nor waive any right, until his restora- tion to capacity. But a certificate from the medi- §§ 41, 42 PERSONS. 16 cal superintendent or resident physician of tlie insane asylum to '^'hich sucli person may have been committed, showing that such person has been discharged therefrom cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such discharge. [Amendment approved March 30, 1878: Amendments 1877-8. 75. In effect May 29, 1878.] § 41. A minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary dam- ages unless at the time of the act he was capable of knowing that it was wrongful. § 42. A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same. PART II. PEKSONAL RIGHTS. § 43. General personal rights. § 44. Defamation, what. § 45. Libel, what. § 46. Slander, what. § 47. "What communications are privileged. § 48. Malice not inferred. § 49. Protection to personal relations. § 50, Right to use force. § 43. Besides the personal riglits mentioned or recognized in the Political Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations. See Pol. Code, sees. 37, 50-60; Penal Code, sees. 346-349. § 44. Defamation is effected by: 1. Libel; 2. Slander. § 45. Libel is a false and unprivileged publi- cation by writing, printing, picture, efflgy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or ob- loquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. See sec. 461, Code Civ. Proc. Privileged publication: See sees. 47, 48, infra. §§ 46, 47 PERSONAL RIGHTS. 18 § 46. Slander is a false and unprivileged pub- lication other than libel, which: 1. Charges any person with crime, or with hav- ing been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his ofiice, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation pe- culiarly requires, or by imputing something with reference to his office, profession, trade, or busi- ness that has a natural tendency to lessen its profit; 4. Imputes to him impotence or a want of chas- tity; or, 5. Which, by natural consequence, causes act- ual damage. § 47. A privileged publication is one made— 1. In the proper discharge of an official duty. 2. In any legislative or judicial proceeding, or in any other official proceeding authorized by law. 3. In a communication, without malice, to a person interested therein, by one who is also in- terested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing tlie motive for the commu- nication innocent, or who is requested by the per- son interested to give the information. 4. By a fair and true report, without malice, in a public journal, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof, or of a verified charge or complaint made by any person to a public of- ficial, upon which complaint a warrant shall have been issued. 5. By a fair and true report, without malice, of the proceedings of a public meeting, if such meet- 19 PERSONAL RIGHTS. §§ 48-50 in^ was lawfully coiiveued for a lawful purpose and open to the public, or the publication of the matter complained of was for the public beuetit. [Amendment approved March 20, 1895, Stats. 180'), p. 1G7. In effect immediately.] § 48. In the cases provided for in subdivisions three, four, and five, of the preceding section, malice is not inferred from the communication or publication. [Amendment approved March 2(3, 18a">; Stats. 1895, p. 1G7. In effect immediately.] § 49. The rights of personal relation forbid: 1. The abduction of a husband from his wife, or of a parent from his child; 2. The abduction or enticement of a wife from her husband, of a child from a parent or from a guardian entitled to its custody, or of a servant from his master; 3. The seduction of a wife, daughter, orphan sister, or servant; 4. Any injury to a servant which affects his ability to serve his master. Action for seduction: See sees. 374, 375, Code Civ. Proc. § 50. Any necessary force may be used to pro- tect from wrongful injury the person or property of one's self, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest. [Amend- ment approved :March 30, 1874; Amendments 1873-4, 184. In effect July 1, 1874.] Lawful resistance to the commission of of- fenses. See Penal Code, sees. 692-694. PART III. PERSONAL RELATIONS. Title I. Marriage, §§ 55-181. II. Parent and Cliild, §§ 193-230. III. Guardian and Ward, §§ 236-258. lY. Master and Servant, §§ 264-276. TITLE I. MARRIAGE. Chapter I. Tlie Contract of Marriage, §§ 55-80. II. Divorce. §§ 82-148. III. Husband and Wife, §§ 155-181. CHAPTER L THE CONTRACT OF MARRIAGE. Article I. Validity of Marriage, §§ 55-63. II. Authentication of Marriage, §§ 68-78. III. Judicial Determination of Void Marriage, § 80. ARTICLE I. VALIDITY OF MARRIAGE. § 55. What constitutes marriage. 5 56. Minors capable of contracting marriage. § 57. Marriage, how manifested and proved. § 58. Certain marriages voidable. § 59. Incompetency of parties to. § 60. Of whites and negroes or mulattoes, void. § 61. Polygamy forbidden. § 62. Released from marriage contract, when. 5 63. Marriages contracted without the State. 21 MARRIAGE. §§ 55-5S § 55. Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making that contract is neces- sary. Consent alone will not constitute marriage; it must be followed by a solemnization author- ized by this Code. [Amendment approved March 2G. 18i)5; Stats. 1895, p. 121. In effect in sixty days.] Bigamy is defined in Penal Code, sec. 281, and punished by sees. 283-4. § 56. Any unmarried male of the age of eight- een years or upwards, and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of consenting to and consummating marriage. § 57. Consent to marriage and solemnization thereof may be proved under the same general rules of evidence as facts are proved in other cases. [Amendment approved March 26, 1895; Stats. 1895, p. 121. In effect in sixty days.] § 58. If either party to a marriage be incapa- ble from physical causes of entering into the mar- riage state, or if the consent of either be obtained by fraud or force, the marriage is voidable. [Amendment approved March 30, 1874; Amend- ments 1873-4, 185. In effect July 1, 1874.] Penalty for false personation in marital rela- tions, Penal Code, sec. 528. See sec. 82, subd. G. § 59. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as of the whole blood, and betM'een uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate. §§ 60-63 MARRIAGB. 22 Penalty for incestuous marriages, Penal Code, sees. 285, 359. § 60. All marriages of white persons with ne- groes or mulattoes are illegal and void. § 61, A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: 1. The former marriage has been annulled or dissolved; provided, that in case it be dissolved, the decree of divorce must have been rendered and made at least one year prior to such subse- quent marriage. 2. Unless such former husband or wife was absent, and not linown to such person to be living for the space of five successive years immediate- ly preceding such subsequent marriage, or was generally reputed or believed by such person to be dead, at the time such subsequent marriage was contracted; in either of which cases the sub- sequent marriage is valid until its nullity is ad- judged by a competent tribunal. [Approved February 25, 1897; ch. xxxvi.] Penalty for bigamy, Penal Code, sees. 283-84; exceptions, sec. 282. § 62. Neither party to a contract to marry is bound by a promise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct on the part of the other; unless both parties participate therein, [Amendment approved March 30, 1874; Amendments 1873-4, 185. In effect July 1, 1874.] § 63. All marriages contracted without this State, which would be valid by the laws of the country in which the same were contracted, are valid in this State. 23 MARRIAGE. 5S 68. S9 ARTICLE II. AUTHENTICATION OF MARRIAGE. § C8. Marriage, how solemnized. § 69. Marriage license. § 70. By whom solemnized. § 71. No particular form of solemnization. § 72. Substantial requisites. § 73. Certificate of marriage. § 74. Certificate to parties and recorder. § 75. Declaration of marriage, how made. § 76. Declaration to contain what. § 77. To be acknowledged and recorded. § 78. Action between the parties to determine validity. § 79. Persons who may be married without license. § 791/4. Members of particular religious denomination. § 68. Marriage must be licensed, solemnized, authenticated, and recorded as provided in this article; but noncompliance with its provisions by other than the parties to a marriage does not in- validate that marriage. [Amendment approved March 2G. 1895; Stats. 1895. p. 121. In effect in sixty days.] § 69. All persons about to be joined in mar- riage must first obtain a license therefor from the county clerk of the county in which the marriage Is to be celebrated, showing: 1. The identity of the parties; 2. Their real and full names and places of res- idence; 3. Their ages. 4. If tlie male be under the age of twenty-one, or the female under the age of eighteen years, the consent of the father, mother, or guardian, or of one having the charge of such person, if any such be given; or that such nonaged person has been previously, but is not at the time, married. For the purpose of ascertaining these facts, the clorlv is authorized to examine parties and wit- nesses on oath, and to receive affidavits, and he must state such facts In the license. If the male be under the age of twenty-one years, or the fe- §§ 70-73 MARRIAGK 24 male be under the age of eighteen, and such per- son has not been previously married, no license shall be issued by the clerli, unless the consent in writing of the parents of the person under age, or of one of such parents, or of his or her guard- ian, or of one having charge of such person, be presented to him; and such consent shall be filed by the clerk, provided that the said clerk sliall not issue a license authorizing the marriage of a white person with a negro, mulatto, or Mongo- lian. [Amendment approved April 6, 1880; Amendments 1880, 3. In effect immediately.] § 70, Marriage may be solemnized by either a justice of the Supreme Court, judge of the Supe- rior Court, justice of the peace, priest, or minis- ter of the gospel of any denomination. [Amend- ment approved April 6, 1880; Amendments 1880, 3. In effect immediately.] Penalty for solemnization of illegal marriage, Penal Code, sec. 359. § 71. No particular form for the ceremony of marriage is required, but the parties must de- clare, in the presence of the person solemnizing the marriage, that they take each other as hus- band and wife. [Const. Cal. 1879, art. 20, sec. 7; so also art. 11, sec. 12, former constitution.] § 72, The person solemnizing a marriage must first require the presentation of the marriage li- cense; and if he has any reason to doubt the cor- rectness of its statement of facts, he must first satisfy himself of its correctness, and for that purpose he may administer oaths and examine the parties and witnesses in like manner as the county clerk does before issuing the license. [Amendment approved March 30, 1874; Amend- ments 1873-4, 186. In effect July 1, 1874.] § 73. The person solemnizing a marriage must make, sign, and Indorse upon, or attach to, the license, a certificate, showing: 25 MARRIAGE. §§ 74-78 1. The fact, time, and place of solemnization; and 2. The names and places of residence of one or more witnesses to the ceremony. [Amendment approved March 80, 1874; Amendments 1873-4, 187. In effect July 1, 1874.] Penalty for false return. Penal Code, sec. 360. § 74. He must, at the request of, and for either party malie a certified copy of the license and certificate, and file the originals with the county recorder within thirty days after the marriage. Kecorder must record: Pol. Code, sec. 4235. § 75. Section seventy-five repealed. [Amend- ment, approved March 26, 1895; Stats. 1895, 121. In effect in sixty days.] § 76. If no record of the solemnization of a marriage heretofore contracted be knowm to ex- ist, the parties may join in a written declaration of such marriage, substantially showing: 1. The names, ages, and residences of the par- ties; 2. The fact of marriage; 3. That no record of such marriage is known to exist. Such declaration must be subscribed by the parties and attested by at least three witnesses. [Amendment approved March 30, 1874; Amend- ments 1873-4, 187. In effect July 1, 1874.] See Penal Code, sec. 360. § 77. Declarations of marriage must be ac- knowledged and recorded in like manner as grants of real property. See Pol. Code, sec. 4235. § 78. If either party to any marriage denies tlie same, or refuses to join in a declaration there- of, the other may proceed, by action in the Supe- rior Court, to have the validity of the marriage determined and declared. [Amendment approved Civ. Code— 3 §§ 79, 79^ MARRIAGE. 26 February 15, 1883; Stats. 1883, 3. In effect Feb- ruary 15, 1883.] § 79. When unmaiTied persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergy- man. A certificate of such marriage must, by the clergyman, be made and delivered to the parties, and recorded upon the records of the church of which the clergyman is a representative. No oth- er record need be made. [New section approved February 6, 1878; Amendments 1877-8, 75. In ef- fect February 6, 1878.] § 791/^. The provisions of this chapter, so far as they relate to procuring licenses and the solemn- izing of marriages, are not applicable to members of any particular religious denomination having, as such, any peculiar mode of entering the mar- riage relation; but such marriages shall be de- clared, as provided in section seventy-six of the Civil Code of this State, and shall be acknowl- edged and recorded, as provided in section seventy- seven of said Civil Code. Where a marriage is de- clared as is provided in said section seventy-six, the husband shall file said declaration with the County Recorder within thirty days after said marriage, and upon receiving the same the County Recorder shall record the same; and if the husband fail to make such declaration and file the same for rec- ord, as herein provided, he shall be liable to the same penalties as any person authorized to solemn- ize marriages, and who fails to make the return of such solemnization as provided by law. [New section approved March 27, 1897; Stats. 1897, c. 126.] ARTICLE III. JUDICIAL DETERMINATION OF VOID MARRIAGES. This article, as an entirety, was added to the Civil Code by act of March 15, 1876; Amendments 1875-6, 69; took effect from passage. 27 MARRIAGE. S§ 80, 82 § 80. Either party to an incestuous or void marriage may proceed by action in the Superior Court, to have the same so declared. [Amend- ment approved April 6, 1880; Amendments 1880, 4. In effect immediately.] CHAPTER II. DIVORCE. Article I. Nullity, §§ 82-86. II. Dissolution, §§ 90-107. III. Causes for Denying Divorce, §§ 111-130. IV. General Provisions, §§ 136-148. ARTICLE I. NULLITY. § 82. Cases where marriage may be annulled. } 83. Action to obtain decree of nullity in certain cases, when and by whom commenced. § 84. Children of annulled marriage. { 85. Custody of children. § 86. Effect of judgment of nullity. § 82. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was con- tracted without the consent of his or her parents or guardian, or person having charge of him or her: unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife; 2. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force; 3. That either party was of unsound mind, un- less such party, after coming to reason, freely co- habit with the other as husband or wife; 4. That the consent of either party was ob- tained by fraud, unless such party afterward. § 83 MARRIAGE. 28 with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife; 5. That the consent of either party was obtain- ed by force, unless such party afterwards freely cohabited with the other as husband or wife; 6. That either party was, at the time of mar- riage, physically incapable of entering into the* marriage state, and such Incapacity continues, and appears to be incurable. [Amendment approved March 30, 1874; Amendments 1873-4, 187. In ef- fect July 1, 1874.] Subd. 5. -Consent obtained by force: See sec. 58, ante. § 83. An action to obtain a decree of nullity of marriage for causes mentioned in the preced- ing section, must be commenced within the pe- riods and by the parties as follows: 1. For causes mentioned in subdivision one: by the party to the marriage 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 relative or guardian of the party of unsound mind, at any time before the death of either party; 4. For causes mentioned in subdivision four: by the party injured, within four years after the discovery of the facts constituting the fraud; 5. For causes mentioned in subdivision five: by the injured party, within four years after the marriage; 6. For causes mentioned in subdivision six: by the injured party, within four years after the 2y MARRIAGE. §§ 84-86 marriage. [Amendment approved March 30, 1874; Amendments 1873-4, 188. In effect July 1, 1874.] § 84. Where a marriage is annulled on the ground that a former husband or wife was liv- ing, or on the ground of insanity, children begot- ten before the judgment are legitimate, and suc- ceed to the estate of both parents. Legitimate children, who are: See sees. 193-195. See, also, when the question arises in divorce cases for adultery, sees. 144, 145. § 85. The court must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. Custody of children in divorce causes: See sec. 138, post. § 86. A judgment of nullity of marriage ren- dered is conclusive only as against the parties to the action and those claiming under them. Conclusiveness of decree for divorce: See sec. 91, post. §§ 90-92 MARRIAGE. 30 ARTICLE II. DISSOLUTION OF MARRIAGE. § 90. Marriage, how dissolved. § 91. Divorce, what. § 92. Causes for divorce. § 93. Adultery defined. § 94. Extreme cruelty, what. § 95. Desertion, what. § 96. Desertion, how manifested. § 97. In case of stratagem or fraud, who commits deser- tion. § 98. In case of cruelty, where one party leaves the other, who commits desertion. § 99. Separation by consent not desertion. § 100. Separation and intent to desert not always coinci- dent. § 101. Consent to separate revocable. § 102. Desertion, how cured. Effect of refusing condona- tion. § 103. Wife must abide by husband's selection of home or it is desertion on her part. § 104. If the place is unfit, and wife refuses to conform, it is desertion by the husband. § 105. Willful neglect, what. §" 106. Habitual intemperance, what. § 107. Habitual intemperance for one year. § 90. Marriage is dissolved only: 1. By the death of one of the parties; or, 2. By the judgment of a court of competent ju- risdiction decreeing a divorce of the parties. [Amendment appro red March 30, 1874; Amend- ments 1873-4, 189. En effect July 1, 1874.] § 91. The effect of a judgment decreeing a di- vorce is to restore the parties to the state of un- married persons. [Amendment approved March 80, 1874; Amendments 1873-4, 189. In effect July 1, 1874.] § 92. Divorces may be granted for any of the following causes: 1. Adultery; 31 MAHKIAGE. §§ 93-97 2. Extreme cruelty; 3. Willful desertion; 4. Willful neglect; 5. Habitual intemperance; 6. Conviction of felony. [Amendment approv- ed March 30, 1874; Amendments 1873-4, 189. In effect July 1, 1874.] Findings: See generally upon this topic. Code Civ. Proc, sees. 031 et seq. Alimony: See sees. 136, post, et seq. Community property, and its disposition under proceedings for divorce: Sees. 141, post, et seq. § 93. Adultery is the voluntary sexual inter- course of a married person with a person other than the offender's husband or wife. Open and notorious adultery is punished by Act of May 15, 1872. See Stats. 1871-2, p. 380. § 94. Extreme cruelty is the infliction of griev- ous bodily injury or grievous mental suffering up- on the other by one party to the marriage. § 95. AVillful desertion is the voluntary separa- tion of one of the married parties from the other with intent to desert. § 96. Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion. § 97. When one party is induced, by the stratagem or fraud of the other party, to leave the family dwelling-place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other. §§ 98-103 MARRIAGE. 32 § 98. Departure or absence of oue party from the family dwelling-place, caused by cruelty or 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. § 99. Separation by consent with or witliout the understanding that one of the parties will ap- ply for a divorce, is not desertion. Consent revocable: See infra, sec. 101. § 100. Absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation. [Amendment approved March 30, 187-i; Amend- ments 1873-4, 1S9. In effect July 1, 1874.] § 101. Consent to a separation is a revocable act, and if one of the parties afterward, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion. § 102. If one party deserts the other, and be- fore the expiration of the statutory period re- quired to make the desertion a cause of divorce, re- turns and offers in good faith to fulfill the mar- riage contract, and solicits condonation, the de- sertion is cured. If the other party refuse such offer and condonation, the refusal shall be deem- ed and treated as desertion by such party from the time of refusal. [Amendment approved March 80, 1874: Amendments 1873-4, 190. In ef- fect July 1, 1874.] § 103. The husband may choose any reasona- ble place or mode of living, and if the wife does not conform thereto, it Is desertion. Same principle, sec. 156, post. Separate domicile for purposes of divorce pro- ceeding: See infra, sec. 129. 33 MARRIAGE. §§ 104-107 § 104. If the place or mode of living selected by the husband is unreasonable and grossly unfit, and. the wife does not conform thereto, it is de- sertion on the part of the husband from the time her reasonable objections are made known to him. § 105. Willful neglect is the neglect of the hus- band to provide for his wife the common neces- saries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation. See sec. 169, infra. § 106. Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party. Duration of intemperance: See next section. § 107. Willful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for divorce. «§ ni-113 MARRIAGE. 34 ARTICLE III. CAUSES FOR DENYING DIVORCE. § 111. Divorces denied, on showing -what. i 112. Connivance, what. § 113. Corrupt consent, how manifested. § 114. Collusion, what. § 115. Condonation, what. § 116. Requisites to condonation. § 117. Condonation implies what. § 118. Evidence of condonation. § 119. Condonation, when operates to bar divorce. § 120. Concealment of facts in certain cases makes con- donation void. § 121. Condonation, how revoked. § 122. Recrimination, what. § 123. Condonation in a recriminatory defense, a bar to such defense, when. § 124. Divorces denied, when. ? 125. Lapse of time establishes certain presumptions. § 126. Presumptions may be rebutted. § 127. Limitation of time. § 128. Divorces granted, when. § 129. Proof of actual residence required. Presumptions do not apply. § 130. Divorce not to be granted by default, &c. § 111. Divorces must be denied upon showing: 1. Connivance; or, 2. Collusion: or, 3. Condonation; or, 4. Recrimination; or, .5. Limitation and lapse of time. § 112. Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. § 113. Corrupt consent is manifested by pas- sive permission, with intent to connive at or ac- tively procure the commission of the acts com- plained of. 35 MARRIAGE. §§ U4-U9 § 114. Collusion is an agreement between hus- band 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. § 115. Condonation is the conditional forgive- ness of a matrimonial offense constituting a cause of divorce. Revoking condonation: Sec. 121, infra. Condonation of recriminatory defense: Sec. 123, post. § 116. The following requirements are neces- sary to condonation: 1. A knowledge on the part of the condoner of the facts constituting the cause of divorce; 2. Reconciliation and remission of the offense by the injured partj-; 3. Restoration of the offending party to all marital rights. § 117. Condonation implies a condition subse- quent; that the forgiving party must be treated with conjugal kindness. § 118. Where the cause of divorce consists of a course of offensive conduct, or arises, in cases of cruelty, from excessive acts of ill-treatment, which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts constituting such cause, unless ac- companied by an express agreement to condone. [Amendment approved March 30, 1874; Amend- ments 1873-4, 190. In effect July 1, 1874.] § 119. In cases mentioned in the last section, condonation can be made only after the cause of divorce has become complete, as to the acts com- §§ 120-124 MARRIAGE. 36 plained of. [Amendment approved March 30, 1874; Amendments 1873-4, 190. In effect July 1, 1874.] § 120. A fraudulent concealment by the con- donee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condona- tion. § 121. Condonation is revoked, and the origi- nal cause of divorce revived: 1. When the condonee commits acts constitut- ing a like or other cause of divorce; or, 2. When the condonee is guilty of great con- jugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith, or not fulfilled. § 122. Recrimination is a showing by the de- fendant of any cause of divorce against the plain- tiff, in bar of the plaintiff's cause of divorce. § 123. Condonation of a cause of divorce, shown in the answer as a recriminatory defense, is a bar to such defense, unless the condonation be revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the condonation, and before the accruing or com- pletion of the cause of divorce against which the recrimination is shown. [Amendment approved March 30, 1874; Amendments 1873-4, 190. In ef- fect July 1, 1874.] § 124. A divorce must be denied: : 1. When the cause is adultery, and the action! is not commenced within two years after the com-j mission of the act of adultery, or after its discoT-{ ery by the injured party; or, 2. When the cause is conviction of felony, and 37 MARRIAGE. §§ 125-130 the action is not commenced before the expiration of two years after a pardon, or the termination of the period of sentence; 3. In all other cases when there is an unreason- able lapse of time before the commencement of the action. [Amendment approved March 30, 1874; Amendments 1873-4, 191. In efeect July 1, 1874.] § 125. Unreasonable lapse of time is such a de- lay in commencing the action as establishes the presumption that there has been connivance, col- lusion, or condonation of the offense, or full ac- quiescence in the same-, with intent to continue the marriage relation, notwithstanding the com- mission of such offense. § 126. The presumptions arising from lapse of time may be rebutted by showing reasonable grounds for the delay in commencing the action. § 127. There are no limitations of time for commencing actions for divorce, except such as are contained in section 124. § 128. A divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the com- mencement of the action. [Amendment approved March 10, 1891; Stats. 1891, p. 52.] § 129. In actions for divorce th^ presumption of law, that the domicile of the husband is the domicile of the wife, does not apply. After sepa- ration, each may have a separate domicile, de- pending for proof upon actual residence, and not upon legal presumptions. § 130. No divorce can be granted upon the de- fault of the defendant, or upon the uncorroborat- Civ. Code— 4. §§ 136, 137 MARRIAGE. 88 ed Statement, admission, or testimony of the par- ties, or upon any statement or finding of *"act made by a referee; but tlie court must, in adOi- tion to any statement or finding of tlie referee, re- quire proof of tlie facts alleged, and sucli proof, if not taken before the court, must be upon written questions and answers. [Amendment approved March 30, 1874; xVmendments 1873-4, 191. In ef- fect July 1, 1874.] ARTICLE IV. GENERAL PROVISIONS, § 136. Relief may be adjudged, where separation is denied. § 137. Expense of action, alimony. § 138. Orders respecting custody of children. § 139. Support of wife and children on divorce or separa- tion granted to wife. § 140. Security for maintenance and alimony. § 141. Court shall resort to what, in executing certain sec- tions. § 142. If wife has sufficient support, court may withhold allowance. § 143. Community and separate property may be subjected to support and educate children. § 144. Legitimacy of issue. § 145. Same. § 146. Disposition of community property on divorce. § 147. How disposed of when divorce rendered on adultery. § 148. Such an action subject to revision on appeal. § 136. Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of them by the husband. Alimony generally: See next section. § 137. While an action for divorce is pending the court may, in its discretion, require the hus- band to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. When the husband willfully deserts the wife, she may, with- 39 MARRIAGE. §§ 138, 139 out applying for a divorce, maintain in the Supe- rior Court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, require the hus- band to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, and executions may issue therefor in the discretion of the court. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such or- der or orders may be varied, altered, or revoked at the discretion of the couvt. [Amendment ap- proved April 6, 1880; Amendments 1880, 4. In ef- fect Immediately.] See sec. 139, infra. § 138. In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the saroa. Excluslve control of child without divorce: S':^cs- 199. 214. Awarding custody of child, considerations that should guide the court: See post, sec. 246. § 139. Where a divorce is granted for an of- fense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to malie such suitable allow- ance to the wife for her support, during her life, or for a sliorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects. Compare with sec. 148. §§ 140-146 MARRIAGE. 40 § 140. The court may require the husband to give reasonable security for providing mainte- nance or malting any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case. § 141. In executing the five preceding sections the court must resort: 1. To the community property; then, 2. To the separate property of the husband. § 142. When the wife has either a separate es- tate, or there is community property sufficient to give her alimony or a proper support, the court, in its discretion, may withhold any allowance to her out of the separate property of the husband. § 143. The community property and the sepa- rate property may be subjected to the support and education of the children in such proportions as the court deems just. § 144. When a divorce is granted for the adul- tery of the husband, the legitimacy of children of the marriage begotten of the wife before the com- mencement of the action is not affected. Legitimacy of children: See generally, sec. 193, post. See, also, the next section. § 145. When a divorce is granted for the adul- tery of the wife, the legitimacy of children begot- ten of her before the commission of the adultery is not affected: but the legitimacy of other chil- dren of the wife may be determined by the court, upon the evidence in the case. § 146. In case of the dissolution of the mar- riage by the decree of a court of competent juris- U MARRIAGE. §§ 147, 148 diction, the community property and the home- stead shall be assijined as follows: 1. If the decree be rendered on the ground of adultery or extreme cruelty, the community prop- erty shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties may deem just. 2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties. 3. If a homestead has been selected from the community property, it may be assigned to the innocent party, either absolutely, or for a limited period, subiect, in the latter case, to the future disposition of the court, or it may, in the discre- tion of the court, be divided, or be sold and the proceeds divided. 4. If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party. [Amendment approved March 30, 1874; Amendments 1873-4, 191. In ef- fect July 1, 1874.] Discretion of court: See sec. 148. § 147. The court, in rendering a decree of di- vorce, must make such order for the disposition of the community property, and of the homestead, as in this chapter provided, and whenever necessary for that purpose, may order a partition or sale of the property and a division or other disposition of the proceeds. [Amendment approved March 30, 1874; Amendments 1873-4, 192. In effect July 1, 1874.] § 148. The disposition of the community prop- erty, and of the homestead, as above provided, is § 156 MARRIAGE. 42 subject to revisiou on appeal in all particulars, in- cluding those which are stated to be in the discre- tion of the court. [Amendment approved March 30, 1874; Amendments 1873-4, 192. In effect July 1, 1874.] CHAPTER III. HUSBAND AND WIFE. § 155. Mutual obligations of husband and wife. § 153. Rights of husband, as head of family. § 157. In other respects their interest separate. § 158. Husband and wife may make contracts. § 159. How far may impair their legal obligations. § 160. Consideration for agreement of separation. § 161. May be joint tenants, &c. § 162. Separate property of the wife. § 163. Separate property of the husband. § 164. Community property. § 165. Inventory of separate property of wife. § 166. Piling inventory notice of wife's title. § 167. Wife not competent to contract for payment of money. § 168. Earnings of wife not liable for debts of husband. § 169. Earnings of wife when living separate, separate property. § 170. Liability for debts of wife contracted before mar- riage. § 171. Wife's property not liable for debts of the husband, but liable for her own debts. § 172. Power of the husband over community property. § 173. Courtesy and dower not allowed. § 174. Support of wife. § 175. Husband not liable when abandoned by wife. § 176. When wife must support husband. § 177. Rights of husband and wife governed by what. § 178. Marriage settlement contracts, how executed. § 179. To bf acknowledged and recorded. § 180. Effect of recording. § 181. Minors may make marriage settlements. § 155. Husband and wife contract toward each other obligations of mutual respect, fidelity, and support. Mother aiding in support of children: Sec. 196, post. Wife's support of husband: See infra, sec. 176. 42 MARRIAGE. 5§ 156-160 Husband's support of wife: See infra, sees. 174, 175, aud ante, sec. 105, where the failure so to do gives ground for divorce. § 156. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. Head of family for homestead purposes: See post, sec. 12G1. Parent changing residence of child: Sec. 213, post. Husband's selection of dwelling-place, desertion if wife does not conform thereto: Sec. 103. § 157. Neither husband nor wife has any inter- est in the property of the other, but neither can be excluded from the other's dwelling. § 158. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confiden- tial relations with each other, as defined by the title on Trust. Contracts for payment of money: See sec. 167. § 159. A husband and wife cannot, by any con- tract with each other, alter their legal relations, except as to property, and except that they may agree, in writing, to an immediate separation, and may make provision for the support of either of them and of their children during such separa- tion. [Amendment approved March 30, 1874; Amendments 1873-4, 193. In effect July 1. 1874.] Marriage settlements: Sees. 177-181, post. § 160. The mutual consent of the parties is a §§ 161-164 MARRIAGE 44 sufficient consideration for such an agreement as is mentioned in the last section. § 161. A husband and wife may hold property as joint tenants, tenants in common, or as com- munity property. § 162. All property of the wife, owned by her before marriage, and that acquired afterward by gift, bequest, devise, or descent, with the rents, is- sues, and profits thereof, is her separate property. The wife may, without the consent of her hus- band, convey her separate property. § 163. All property owned by the husband be- fore marriage, and that acquired afterward by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate prop- erty. Community property: See the definition, sec. 687. Community property liable for what debts: Sec. 167. Husband's control over community property: Sec. 172. Descent of community property: Sees. 1401, 1402, post. § 164. All other property acquired after mar- riage by either husband or wife, or both, is com- munity property; but whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance be to such married woman and to her husband, or to her and any other person, the presumption is that the mar- ried woman talies the part conveyed to her, as tenant in common, unless a different intention is expressed in the instrument, and the presumption 45 MARRIAGE. §§ 165-167 In this section mentioned is conclusive in favor of a purchaser or incumbrancer in jrood faith and for a valuable consideration. And in cases where married women have convej-ed or shall hereafter convey, real property which they acquired prior to May nineteenth, eighteen hundred and eighty- nine, the husbands, or their heirs or assigns, of such married women, shall 1)6 barred from com- mencing or maintaining any action to show that said real property was community property, or to recover said real property, as follows: As to conveyances heretofore made from and after one year from the date of the taking effect of this Act; and as to conveyances hereafter made from and after one year from the filing for record in the Recorder's ottice of such conveyances respec- tively. [Approved March 4, 1897, c. 72.] This section was also amended in 1893, Stats. 1893, p. 71. § 165. A full and complete inventory of the separate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the ac- knowledgment or proof of a grant of real prop- erty by an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside. § 166. The filing of the inventory in the re- corder's office is notice and prima facie evidence of the title of the wife. [Amendment ai)proved March 30, 1874; Amendments 1873-4, 193. In ef- fect July 1, 1874.] § 167. The property of the community is not liable for the contracts of the wife, made after marriage, unless secured by a pledge or mortgage thereof executed by the husband. [Amendment §§ 168-172 MARRIAGE. 46 approved March 30, 1874; Amendments 1873-4, 193. In effect July 1, 1874.] Debts of wife: See sees. 170, 171, 174. Community property is liable for husband's debts: Sec. 172. Necessaries furnished wife: See sec. 174. § 168. The earnings of the wife are not liable for the debts of the husband. § 169. The earnings and accumulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, are the separate property of the wife. Sole traders.— As to married women becoming sole traders, and their rights and liabilities as such, see Code Civ. Proc, sees. 1811-1821, in- clusive. § 170. The separate property of the husband is not liable for the debts of the wife contracted be- fore the marriage. § 171. The separate pi-operty of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or afier marriage. § 172. The husband has the management and control of the community property, with the lilie absolute power of disposition, other than testa- mentary, as he has of his separate estate; pro- vided, however, that he cannot make a gift of such community property, or convey the same without a valuable consideration, unless the wife, in writing, consent thereto. [Amendment approv- ed March 31, 1801; Stats. 1891, p. 425.] Testamentary control over community property: See sees. 1401 and 1402, post, which prescribe the 47 MARRIAGE. §§ 173-176 course of descent of common property, and limit the power of testamentary disposition over the same. Community property generally: See supra, sec. 164. Dissolution of the community by divorce: See sees. 147, 148. § 173. No estate is allowed the husband as ten- ant by courtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. § 174. If the husband neglect to make ade- quate provision for the support of his wife, except in the cases mentioned in the next section, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. [Amendment approved March 30, 1874; Amend- ments 1873-4, 193. In effect July 1, 1874.] § 175. A husband abandoned by his wife is not liable for her support until she offers to re- turn, unless she was justified, by his misconduct, in abandoning him; nor is he liable for her sui> port when she is living separate from him, by agi-eeraent, unless such support is stipulated in the agreement. [Amendment approved March 30, 1874; Amendments 1873-4, 193. In effect July 1, 1874.] § 176. The wife must support the husband, when he has not deserted her, out of her separate property, when he has no separate property, and there is no community property, and he is unable, from infirmity, to support himself. [Amendment approved March 30, 1874; Amendments 1873-4, 194. In effect July 1, 1874. j §§ 177-181 MARRIAGE, 48 Mutual obligations of support: See sec. 155. § 177. The property riglits of husband and wife are governed by this chapter, unless there is a marriage settlement containing stipulations con- trary thereto. § 178. All contracts for marriage settlements must be in writing, and executed and acknowl- edged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. § 179. When such contract is acknowledged or proved, it must be recorded in the office of the re- corder of every county in which any real estate may be situated which is granted or affected by such contract. § 180. The recording or uonrecording of such contract has a like effect as the recording or non- recording of a grant of real property. § 181. A minor capable of contracting mar- riage may make a valid marriage settlement. i PARENT AND CHILD. § 19S TITLE II. PARENT AND CHILD. CHAPTER I. CHILDREN BY BIRTH. § 193. Legitimacy of children born in wedlock. § 194. Legitimacy of children born out of wedlock. § 195. Who may dispute the legitimacy of a child. § 196. Obligation of parents for the support and education of their children. § 197. Custody of legitimate child. § 198. Husband and wife living separate, neither to have superior right to custody of children. § 199. When husband or wife may bring action for the ex- clusive control of children. Decree in such cases. § 200. Custody of an illegitimate child. § 201. Allowance to parent. § 202. Parent cannot control the property of child. § 203. Remedy for parental abuse. § .:u4. When parental authority ceases. § 205. Remedy when a parent dies without providing for the support of his child. § 206. Reciprocal duties of parents and children in main- taining each other. § 207. W^hen a parent is liable for necessaries supplied to a child. § 208. When a parent is not liable for support furnished his child. § 209. Husband not bound for the support of his wife's children by a former marriage. § 210. Compensation and support of adult child. § 211. Parent may relinquish services and custody of child. § 212. Wages of minors. § 213. Right of parent to determine the residence of child. § 214. W lie in certain cases may obtain custody of minor children. § 215. Child legitimized by marriage of parents. § 193. All children born in wedlock are pre- sumed to be legitimate. Civ. Code— 5. ^§ 194-196 PARENT AND CHILD. 50 Legitimacy of children of nullified marriage: See ante, sec. 84. Legitimacy in cases of adultery: See ante, sees. 144, 145. Rebutting presumption of legitimacy: Sec. 195, infra. Legitimating cliildren by marriage of parents: See sec. 215, post. Fatlier legitimating child by acknowledging it: Sec. 230; and compare sec. 1387, post. Illegitimate's earnings: See sec. 200. Illegitimates, heirs to whom: Sec. 1387, post. Mother succeeds to estate of illegitimate: Sec. 1388, post. § 194. All children of a woman who has been married, born witnin ten months after the disso- lution of the marriage, are presumed to be legiti- mate cliildren of that marriage. [Amendment ap- proved March 30, 1874; Amendments 1873-4, 194. In effect July 1, 1874.] § 195. The presumption of legitimacy can be disputed only by the husband or wife, or the de- scendant of one or both of them. Illegitimacy, in such case, may be proved like any other fact, § 196. The parent entitled to the custody of a child must give him support and education suita- ble to his circumstances. If the support and edu- cation which the father of a legitimate child is able to give are inadequate, the mother must as- sist him to the extent of her ability. Action to enforce parental duty: Sec. 203, infra. Third person supplying necessaries: Sees. 207, 208, infra. Willful failure to support child is a misde- meanor: Pen. Code, sec. 270. 51 PARENT AND CHILD. §§ 197-199 DeserliDg child is a felony: Pen. Code, sec. 271. Supporting poor relatives: See sec. 206. infra. Illegitimate child.— The mother is entitled to the custody of an illegitimate unmarried minor: Sec. 200. Injury to child, action for: See Code Civ. I'roc, sec. 376. § 197. The father of a legitimate unmarried minor child is entitled to its custody, services, and earnings; but he cannot transfer such custody or services to any other person, except the mother, without her written consent, unless she has de- serted him, or is living separate from him by agreement. If the father be dead, or be unable, or refuse to take the custody, or has abandoned his family, the mother is entitled thereto. fAmeudment approved March 30, 1874; Amend- ments 1873-4. 194. In effect July 1, 1874.] Relinquishing right to child's earnings: Sec. 211, infra. Property of child, parent, as such, has no con- trol of: Sec. 202, infra. Guardian, appointment of: See post, sees. 241 et seq. § 198. The husband and father, as such, has no rights superior to those of the wife and mother, in regard to the care, custody, education, and con- trol of the children of the marriage, while such husband and wife live separate and apart from each other. Custoay of child in divorce causes: See ante, sec. 138. § 199. Without application for a divorce, the husband or the wife may ))ring an action for the exclusive control of the children of the marriage; ond the court may, during the pendency of such action, or at the final liearing thereof, or after- §§ 200-203 PARENT AND CHILD. 52 ward, make sucli order or decree in regard to the support, care, custody, education, and control of the children of the marriage, as may be just, and in accordance with the natural rights of the par- ents and the best interests of the children, and may at any time thereafter amend, vary, or mod- ify such order or decree, as the natural rights and the interests of the parties, including the children, may require. Compare with sec. 214, infra. Control of children pending divorce proceedings: See ante, sec. 138. Awarding custody of child.— Considerations that should govern the court: Sec. 246, post. § 200. The mother of an illegitimate unmar- ried minor is entitled to its custody, services, and earnings. Mother the heir of illegitimate child: Sec. 1388, post. Duty to support child: Sec. 196. § 201. The proper court may direct an allow- ance to be made to the parent of a child, out of its property, for its past or future support and educa- tion, on such conditions as may be proper, when- ever such direction is for its benefit. § 202. The parent, as such, has no control over the property of the child. Same principle: Sec. 242, post. Guardian of minor*s estate: See sees. 241, post, et seq. § 203. The abuse of parental authority is the subject of judicial cognizance in a civil action brought by the child, or by its relative within the third degree, or by the supervisors of the county where the child resides; and when the abuse is established, the child may be freed from the do- 53 PARENT AND CHILD. §5 204-207 minion of the parent, and the duty of support and education enforced. Parental duty: See sec. 190, ante. Omission to supply a child with necessaries is a misdemeanor, and desertion is punished by im- prisonment: Pen. Code, sees. 270, 271. § 204. The authority of a parent ceases: 1. Upon the appointment, by a court, of a guardian of the person of a child; 2. Upon the marriage of the child; or, 3. Upon its attaining majority. § 205. If a parent chargeable with the support of a child dies, leaving it chargeable to the coun- ty, and leaving an estate sufficient for its sup- port, the supervisors of the county may claim pro- vision for its support from the parent's estate by civil action, and for this purpose may have the same remedies as any creditors against that es- tate, and against the heirs, devisees, and next of kin of the parent. § 206. It is the duty of the father, the mother, and the children of any poor person who is un- able to maintain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding. Mother supporting children: Sec. 197. Wife supporting husband: Sec. 176. § 207. If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent. Infant liable on contract for necessaries: See sec. 36, ante. §§ 208-213 PARENT AND CHILD. -64 § 208. A parent is not bound to compensate the other parent, or a relative, for the voluntary support of his child, without an agreement for compensation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause. § 209. A husband is not bound to maintain his wife's children by a former husband; but if he re- ceives them into his family and supports them, it is presumed that he does so as a parent; and, where such is the case, they are not liable to him for their support, nor he to thein for their ser- vices. § 210. Where a child, after attaining majority, continues to serve and to be supported by the par- ent, neither party is entitled to compensation, in the absence of an agreement therefor. § 211. The parent, whether solvent or insol- vent, may relinquish to the child the right of con- trolling him and receiving his earnings. Aban- donment by the parent is presumptive evidence of such relinquishment. § 212. The wages of a minor employed in ser- vice may be paid to him until the parent or guardian entitled thereto gives the employer no- tice that he claims such wages. [Amendment approved March 30, 1874; Amendments 1873-4, 194. In effect July 1, 1874.] § 213. A parent entitled to the custody of a child has a right to change his residence, subject to the power of the proper court to restrain a re- moval which would prejudice the rights or wel- fare of the child. Residence, husband's right to change: See ante, sec. 15G. 66 PARENT AND CHILD. §§ 214-222 § 214. When a husbaud uud wife live lu a state ol' separatiou, witliout being divorced, any conrt ol* competent jurisdiction, upon application of either, if an inliabitaut of this State, may in- quire into the custody of any unmarried minor child of the marriage, and may award the cus- tody' of such child to either, for such time and un- der such regulations as the case may require. The decision of the court must be guided by the rules prescribed in section 24G. See Act of March T, 1874, relative to orphans and abandoned children. Stats 1873-4, p. 297. Custody of child without divorce of parents: See ante, sec. IDU. Custody of child pending divorce proceedings: See sec. 138. § 215. A child born before wedlocli; becomes le- gitimate by the subsequent marriage of its par- ents. LNew section approved March 30, 1874; Amendments 1873-4, 105. In effect July 1, 1874.] CHAPTER II. ADOPTION. § liL'l. Child may be adopted. § 222. \v ho may adopt. § 223. Consent of wife necessary. § 224. Consent of ehild's parents. § 225. Consent of child. § 226. Proceedings on adoption. § 227. Judge's order. § 228. KftVct of adoption. § 229. Effect of former relations of child. § 230. Adoption of illegitimate child. § 221. Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter, § 222. The person adopting a child must be at least ten years older than the person adopted. §§ 223, 224 PARENT AND CHILD. 56 [Aruendmeut approved March 30, 1874; Amend- ments 1873-4, 195. In effect July 1, 1874.] § 223. A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife; nor can a married woman, not thus separated from her husband, without his consent, provided the husband or wife, not con- senting, is capable of giving such consent. [Amendment approved March 30, 1874; Amend- ments 1873-4, 195. In effect July 1, 1874.] § 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 the consent is not neces- sary from a father or mother deprived of civil rights, or adjudged guilty of adultery or of cruel- ty, and for either cause divorced, or adjudged to be an habitual drunli.ard, or who has been judi- cially deprived of the custody of the child on ac- count of cruelty or neglect; neither is the consent of any one necessary in case of any abandoned child; provided, however, that where any such child, being a half-orphan, and liept and main- tained within any orphan asylum in this State for more than two years, may be adopted with the consent of the managers of such orphans' home without the consent of the parent, unless such parent has paid toward the expenses of mainte- nance of such half-orphan at least a reasonable sum during the said time, if able so to do; and where the parent is a nonresident of this State, such child may be adopted with the consent of the managers of such home, whenever it has been left by its parent in such home for more than one year, whether the parent has contributed any- thing to its support or not, and the consent of the parent of such half-orphan is not necessary to its 57 PARENT AND CHILD. §§ 225-228 adoption, whenever the managers of the home are authorized to give such consent, as herein pro- vided. [Amendment approved March 9, 1895; Stats. 1^95, p. 39. In effect immediately.] § 225. The consent of a child, if over thp age of twelve years, is necessary to its adoption. § 226. The person adopting a child, and the child adopted, and the other persons, if within or residents of this State, whose consent is neces- sary, must appear before the judge of the Supe- rior Court of the county where the person adopt- ing resides, and the necessary consent must there- upon be signed and an agreement be executed by the person adopting, to the effect that the child shall be adopted and treated in all respects as his own lavvful child should be treated. If the per- sons whose consent is necessary are not within or are not residents of this State, then their writ- ten consent, duly proved or 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 application for adoption. [Amendment ap- proved April 6, 1880; Amendments 1880, 4. In ef- fect immediately.] § 227. The judge must examine all persons ap- pearing before him pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. § 228. A child, when adopted, may tnke the family name of the person adopting. After adop- tion, the two shall sustain toward each other the legal relation of parent and child, and have all the §§ 229, 230 GUARDIAN AND WARD. 58 rights and be subject to all the duties of that re- lation. [Amendment approved March 30, 1874; Amendments 1873-4, 195. In effect July 1, 1874.] § 229. The parents of an adopted child are, from the time of tlie adoption, relieved of all par- ental duties toward, and all responsibility for, the child so adopted, and have no right over it. § 230. The father of an illegitimate child, by publicly aclinowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption. TITLE III. GUARDIAN AND WARD. § 236. Guardian, what. § 237. Ward, what. § 238. Kinds of guardians. § 239. General guardian, what. § 240. Special guardian, what. § 241. Appointment by parent. § 242. No person guardian of estate without appointment. § 243. Appointment by court. § 244. Same. § 245. Jurisdiction. § 246. Rules for awarding custody of minor. § 247. Powers of guardian appointed by court. § 248. Duties of guardian of the person. § 249. Duties of guardian of estate. § 250. Relation confidential. § 251. Guardian under direction of court. § 252. Death of a joint guardian. § 253. Removal of guardian. § 254. Guardian appointed by parent, how superseded. § 255. Guardian appointed by court, how superseded. § 256. Released by ward. ^ 257. Guardian's discharge. § 258. Insane persons. 59 GUARDIAN AND WARD. §§ 236-242 § 236, A guardiau is a person appointed to take care of the person or property of another. § 237. The person over whom or over whose property a guardian is appointed, is called his ward. § 238. Guardians are either: 1. General; or, 2. Special. Testamentary guardians: See sec. 241. Guardians ad litem: See Code Civ. Proc, sees. 372, 373. § 239. A general guardian is a guardian of the person or of all the property of the ward w^ithin this State, or of both. § 240. Every other is a special guardian. § 241. A guardian of the person or estate, or of both, of a child born, or lil^ely to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing: i. If the child be legitimate, by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of con- sent; 2. If the child be illegitimate, by the mother. [Amendment approved March 30, 1874; Amend- ments 1873-4, 195. In effect July 1, 1874.] Code Civ. Proc, sec. 1747. Bond of testamentary guardian: Code Civ. Proc, sec. 1758. § 242. No person, whether a parent or other- wise, has any power as guardian of property, ex- cept by appointment as herein after provided. Same principle as expressed in sec 202. ante. And as to power of guardian appointed by the court, see sec. 247, infra. §§ 243-246 GUARDIAN AND WARD. 60 § 243. A guardian ot the pei-son or property, or both, of a person residing in this State, who is a minor, or of unsound mind, may be appointed in all eases, other than those named in section two hundred and forty-one, by the Superior Court, as provided in the Code of Civil Procedure. [Amend- ment approved April 6, 1880; Amendments 1880, 4. In effect immediately.] Judicial appointment of guardian of minor: See Code Civ. Proc., sec. 1747, .Judicial appointment of guardian of insane or incompetent |)ersons: See Code Civ. Proc, see. 1763. Act providing for appointment of guardian of orphans: See post, Appendix, p. 776. § 244. A guardian of the property within this State of a person not residing therein, who is a minor, or of unsound mind, may be appointed by the Superior Court. [Amendment approved April 0. 1880; Amendments 1880. 4. In effect immedi- ately.] Nonresident wards, appointment of guardian: See Code Civ. Proc, sees. 1793 et seq. § 245. In all cases the court mailing the ap- pointment of a guardian has exclusive jurisdiction to control him. Code Civ. Proc, sec. 1771. § 246. In awarding the custody of a minor, or in appointing a general guardian, the court or of- ficer is to be guided by the following consider- ations: 1. By what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare, and if the child be of a sufficient age to form an intelligent preference, the court may consider that preference in deter- mining the question. 61 GUARDIAiN AND WARD. §§ 247-24d 2. As between parents adversely claiming tlie custody or guardianship, neither parent is entitled to it as of right; but other things being equal, if the child be of tender years, it should be given to the mother; if it be of an age to require education and preparation for labor or business, then to the father. 3. Of two persons equally entitled to the cus- tody in other respects, preference is to be given as follows: 1. To a parent; 2. To one who was indicated by the wishes of a deceased parent; 3. To one who already stands in the position of a trustee of a fund to be applied to the child's support; 4. To a relative. [Amendment approved March 30, 1874; Amendments 1873-4, 196. In effect July 1, 1874.] Custody of children generally, pending divorce: See sec. 138; without divorce, see sees. 199, 214. Custody of child where parents separated: See >vnte, sec. 214. § 247. A guardian appointed by a court has power over the person and properfy of tne ward, unless otherwise ordered. Property of ward, control over: See sec. 242. § 248. A guardian of the person is charged with the custody of the ward, and must look ta his support, health, and education. He may fix the residence of the ward at any place within the State. l>ut not elsewhere, without permission of the court. Compare sec. 251. § 249. A guardian of the property must keep- safely the property of his ward. He must not per- Civ. Code— 6 §§ 250-253 GUARDIAN AND WARD. 62 rait any unnecessary waste or destruction of the real property, nor make any sale of such property without the order of the Superior Court, but must, so far as it is in his power, maintain the same, with its buildings and appurtenances, out of the income or other property of the estate, and deliver it to the ward, at the close of his gr ardianship, in as good condition as he received it. [Amendment approved April 6, 1880; Amendments 1880, 5. In effect immediately.] Sale of ward's estate: See Code Civ. Proc, secf> 1777 et seq. Guardian using principal as well as income: See* Code Civ. Proc, sec. 1770. § 250. The relation of guardian and ward is confidential, and is subject to the provisions of the title on Trusts. Trusts: See post, sees. 2215 et seq. § 251. In the management and disposition of the person or property committed to him, a guard- ian may be regulated and controlled by the court. Residence or ward: See sec. 248, ante. § 252. On the death of one of two or more joint guar6.ians, the power continues to the sur- vivor until a further appointment is made by the court. Survival of trust: See sec. 2288, post. § 253. A guardian may be removed by the Su- perior Court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform its duties'. 3. For incapacity to perform its duties; 4. For gross immorality; 5. For having an interest adverse to tne faith- ful performance of his duties; 6. For removal from the State; 63 GUARDIAN AND WARD. §§ 254-258 T. 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 ap- proved April G, 1880; Amendments 1880, 5. In ef- fect immediately.] § 254. The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by section 253; 2. By the solemnized marriage of the ward; or, 3. By the ward's attaining majority. Marriage of ward terminates guardianship: Code Code Civ. Proc, sec. 1802. § 235. The power of a guardian appointed by a court is suspended only: 1. By order of the court; or, 2. If the appointment was made solely because of the ward's minority, by his attaining majority; or, 3. The guardianship over the person of the ward, by the marriage of the ward. [Amendment approved March 30, 1874; Amendments 1873-4, 197. In effect July l, 1874.] Marriage of ward terminates guardianship: Civ. Proc, sec. 1802. § 256. After a ward has come to his major- ity, he may settle accounts with his guardian, and give him a release, which is valid if obtained fair- ly and without undue influence. § 257. A guardian appointed by a court is not entitled to his discharge until one year after tha ward's majority. Resignation of guardian: See Code Civ. Proc, sec. 1801. § 258. A person of unsound mind may be plac- ed in an asylum for such persons, upon the order § 264 MASTER AND SERVANT. 64 of the Superior Court of tlie county in which he resides, as follows: 1. The court must be satisfied, upon examina- tion in open court and in the presence of such per- son, from the testimony of two reputable physi- cians, that such person is of unsound mind, and unfit to be at large; 2. After the order is granted, the person alleg- ed to be of unsound mind, his or her husband or wife, or relative to the third degree, or any citi- zen, may demand an investigation before a jury, which must be conducted in all respects as under an inquisition of lunacy. Amendment approved Apr. 6. 18S0: Am. *80. p. 4. As to guardians, see Code Civ. Proc. sees. 1747- 1809. Guardianship of lunatic: See Code Civ. Proc, sec. 1763. TITLE IV. MASTER AND SERVANT. § 234. Minors may apprentice themselves. § 265. Consent of parents, &c., requisite. § 266. W^ritten consent. § 267. Executors may bind. § 268. Supervisors may bind out. . § 269. Town officers. § 270. Age of apprentice to be inserted in indentures. § 271. Indentures, conditions in. § 272. Same. § 273. Deposit of indentures. § 274. Alien minors. § 275. Contract under preceding section to be acknowl- edged. § 276. Causes for annulling indentures. Employer and employee: See, generally, sees. 1865 et seq. § 264. Every minor, with the consent of the persons or officers hereinafter mentioned, may, of his own free will, bind himself, in writing, to 65 MASTER AND SERVANT. §§^265-267 serve as clerk, apprentice, or servant, in any pro- fession, trade, or employment, during his minor- ity, and such binding shall be as valid and eflec- tual as if such minor was of full age at the time of making the engagement. Aiding apprentice to run away a misdemeanor: Pen. Code, sec. (340. See Act of April 3, 187G, relative to apprentices: See post, Appendix, pp. 708 et seq. Master and servant generallj": See post, sec. 2009. § 265. Such consent shall be given: 1. By the father of the minor. If he be dead, or be not of legal capacity to give his consent, or if he shall have abandoned or neglected to pro- vide for his family, and such fact be certified by a justice of the peace of the township or county, or sworn to by a credible witness, and such cer- tificate or aflidavit be indorsed on the indenture, then: 2. By the mother. If the mother be dead, or be not of legal capacity to give such consent or re- fusal, then: 3. By the guardian of such infant. If such in- fant have no parent living, or none in a legal ca- pacity to give consent, and there be no guardian, then: 4. By the supervisors of the county, or any two justices of the peace, or the judge of the Superior Court of the county; 5. If such minor be an orphan, under the care and control of any orphan asylum in this State, then by the board of managers thereof. [Amend- ment approved April G, 1880; Amendments 1880, 5. In effect immediately.] § 266. Such consent shall be signified in writ- ing by the person entitled to give the same, by §§ 268-272 MASTER AlSD ^tERVANT. 66 certificate at the end of, or indorsed upon the in- dentures. § 267. The executors of any last will of a par- ent who shall be directed in such will to bring up his or her child to some trade or calling, may bind such child to service as a clerk, or apprentice, in lilie manner as the father might have done if living. If there is a surviving mother, her con- sent also is necessary. § 268. The supervisors of the county may bind out minors who are or shall become chargeable to such county, to be clerks, apprentices, or ser- vants, which binding shall be as effectual as if such minors had bound themselves with the con> sent of their father. § 269. In every town or city, the presiding of- ficer of the first council or legislative board there- of, if there be more than one, or any public ofiB- cer or officers appointed to provide for tne poor, may in like manner bind out any child who, or whose parents are, chargeable to any such town or city. § 270, The age of every infant so bound shall be inserted in the indentures, and shall be taken to be the true age; and whenever public officers are authorized to execute any indentures, or their consent is required to the validity of the same, it shall be their duty to inform themselves fully of the infant's age. § 271. Ev<;;ry sum of money paid or agreed for, frith or in relation to the binding out of any clerk, apprentice, or servant shall be Inserted in the in- dentures. § 272. The indenture shall also contain an agreement, on the part of the person to whom such child shall be bound, that he will cause such child to be instructed to read S-ld write, and to be 67 MASTER AND SERVANT. §§ 273-276 taught the general rules ot arithmetic, or, in lieu thereof, that he will send such child to school three mouths of each year of the period of in- denture. § 273, The counterpart of any indenture ext> cuted by any county, or city, or town officers, must be by them deposited in the office of the county clerk. [In effect April (>, 188O.] § 274. Any minor, capable of becoming a citi- zen of this State, coming from any other coun- try. State, or Territory, may bind himself to ser- vice until his majority, or for any shorter term. Such contract, if made for the purpose of raising money to pay his passage, or for the payment of such passage, may be for the term of one year, although such term may extend beyond the time when such person will be of full age, but it shall in no case be for a longer term. § 275. No contract made under the preceding section shall bind the servant, unless duly ac- knowledged by the minor, before some public ma^ istrate or other officer authorized to administer oaths, nor unless a certificate, showing that the same was made freel5% on private examination, be indorsed upon the contract. § 276. Such indentures of apprenticeship may be annulled for: 1. Fraud in the contract of indenture; 2. When such contract is not made or executed In accordance with the provisions of this titK-; 3. For willful nonfulfillment, 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. PART IV. CORPORATIONS. Title I. General Provisions as to all Corpora- tions, §§ 283-403. II. Insurance Corporations, §§ 414-448. III. Railroad Corporations, §§ 454-491. IV. Street Railroad Corporations, §§ 497-511. V. Wagon Road Corporations, §§ 512-523. VI. Bridge, Ferry, Wliarf, Chute, and Pier Corporations, §§ 528-531. VII. Telegraph Corporations, §§ 536-541. VIII. Water and Canal Corporations, §§ 548- 551. IX. Homestead Corporations, §§ 557-566. X. Savings and Loan Corporations, §§ 571- 579. XI. Mining Corporations, §§ 584-587. XII. Religious, Social, and Benevolent Corpo- rations, §§ 593-601. XIII. Cemetery Corporations, §§ 608-614. XIV. Agricultural Fair Corporations, §§ 620- 622. XV. Gas Corporations, §§ 628-632. XVI. Land and Building Corporations, §§ 639- 648. TITLE L GENERAL PROVISIONS APPLICABLE TO ALL CORPO- RATIONS. Chapter I. Formation of Corporations, §§ 283- 320. II. Corporate Stoclv, §§ 322-349. III. Corporate Powers, §§ 354-393. IV. Extension and Dissolution of Corpo rations, §§ 399-403. 69 FORMATION OF CORPORATIONS. i 283 CHAPTER I. FORMATION OF CORPORATIONS. Article I. Corporations Defined and how Organized, §§ 283- 800. II. By-laws, Directors, Elections, and Meetings, §§ 301-320. ARTICLE I. CORPORATIONS DEFINED AND HOW ORGANIZED. § 283. Corporation defined. § 284. What are public and private corporations. § 285. Corporations, how formed. § 286. For what purpose private corporations are formed. § 287. How corporations may continue their existence un- der this Code. § 288. Existing corporations not affected. § 289. Name of instrument creating corporation. § 290. Articles of incorporation, what to contain. § 291. Certain corporations to state further facts in articles. § 292. Five corporators, three to be citizens of the State, to sign articles and acknowledge the same. § 293. Prerequisite to filing articles. Amounts to be sub- scribed to be fixed. § 294. Prerequisite to filing articles of corporations for profit. § 295. Oath of oflBcer to subscription of stock and payment of ten per cent. § 296. To file articles with county clerk and secretary of state, and receive certificate. Term of existence. § 297. Certified copy of certificate to be prima facie evi- dence. § 298. Who are members and who stockholders of a cor- poration. § 299. Whpn member dies successor to be elected. § 300. Banking corporations may elect to have capital stock. § 283. A rorporntion is a creature of the law, haviiicr certain powers an#, 308, 309 elected. The provisions of this section, so far as it relates to cumulative voting, shall not apply to literary, religious, scientific, social, or benevolent societies, unless it shall be so provided in theii by-laws or rules. [Amendment approved Marcl 10, 1887; Stats. 1887, p. 05. In effect immediately.] § 308. Immediately after their election, the di- rectoi*s must organize by the election of a presi- dent, who must be one of their number, a secre- tary, and treasurer. They must perform the du- ties enjoined on them by law and the by-laws of the corporation. A majority of the directors is a sufficient number to form a board for the trans- action of business, and every decision of a ma- jority of the directors forming such board, made when duly assembled, is valid as a corporate act. § 309. The directors of corporations must not malce dividends, except from the surplus prof- its arising from the business thereof; nor must they divide, withdraw, or pay to the stockholders. or any of them, any part of the capital stock; nor must they create debts beyond their subscribed capital stock; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock, except as hereinafter provided, nor reduce or increase the capital stock, except as herein specially provided. For a viola- tion of the provisions of this section, the directors under whose administration the same may have happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the directors at the time, or were not present when the same did happen) are, in their individual and private capacity, jointly and severally liable to the corporation, and to the cred- itors thereof, in the event of its dissolution, to the full amount of the capital stock so divided, with- § 310 FORMATIONS OF CORPORATIONS. 84 drawn, paid out, or reduced, or debt contracted; and no statute of limitations is a bar to any suit against such directors for any sums for which they are liable by this section; provided, however, that where a corporation has been heretofore or may hereafter be formed for the purpose, among other things, of acquiring, holding, and selling real estate, water, and water rights, the directors of such corporation may, with the consent of stocli- holders representing two-thirds of the capital stocli thereof, given at a meeting called for that purpose, divide among the stockholders the land, water, or water rights so by such corporation held, in the proportions to which their holdings of such stock at the time of such division would entitle them. All conveyances made by the cor- poration in pursuance of this section shall be made and received subject to the debts of such corporation existing at the date of the conveyance thereof. Nothing herein shall prohibit a division and distribution of the capital stock of any cor- poration which remains after the payment of all its debts, upon its dissolution, or the expiration of its term of existence. [Amendment approved March 31, 1891; Stats. 1891, p. 468.] Penal Code. sees. 560, 563, 564. 569, 570. § 310. No director shall be removed from of- fice, unless Dy a vote of two-thirds of the mem- bers, or of stockholders holding two-thirds of the capital stock, at a general meeting held after pre- vious notice of the time and place, and of the in- tention to propose such removal. Meetings of stockholders for this purpose may be called by the president, or by a majority of the directors, or by members or stockholders holding at least one-half of the votes. Such calls must be in writing, and addressed to the secretary, who must thereupon give notice of the time, place, and object of the 85 FORMATION OF CORPORATIONS. §§ 311, 312 meetiug, aud by M'liose order it is called. If the secretarj' refuse to give the notice, or if there is none, the call may be addressed directly to the members or stockliolders, aud be served as a no- tice, in which case it must specify the time and place of meeting. The notice must be given in the manner provided in section 301 of this title, unless other express provision has been made therefor in the by-laws. In case of removal, the vacancy may be filled by election at the same meeting. Act to protect stockholders and persons dealing with corporations from misrepresentations of of- ficers: See post, Appendix, p. 762. § 311. Whenever, from any cause, tliere is no person authorized to call or to preside at a meet- ing of a corporation, any justice of the peace of the county where such corporation is established may, on written application of three or more of the stockholders or of the members thereof, issue a warrant to one of the stockholders or members, di- recting him to call a meeting of the corporation, by giving the notice required, and the justice may in the same warrant direct such person to preside at such meeting until a clerk is chosen and qualified, if there is no other officer present legally author- ized to preside thereat. § 312. At all elections or votes had for any purpose there must be a majority of the subscribed capital stock, or of the members, represented, either in person or by proxy in writing. Every person acting therein, in person or by proxy or representative, must be a member thereof or a bona fide stockholder, having stock in his ow^n name on the stock books of the corporation at least ten days prior to the election. Any vote or election had other than in accordance with the provisions of this article is voidable at the in stance of absent or any stockholders or members. Civ. Code— 8 §§ 313-S15 FORMATION OF CORPORATIONS. 86 and may be set aside by petition to the District Court of the county where the same was held. Any regular or called meeting of the stockholders or members may adjourn from day to day, or from time to time, if for any reason there is not present a majority of the subscribed stock or members, or no election had— such adjournment and the reasons therefor being recorded in the journal of proceedings of the board of directors. [Amendment approved April 1, 1878; Amendment; 1877-8. 79. In effect April 1, 1878.] Notice of meeting: See sec. 302. § 313. The shares of stock of an estate of a minor, or insane person, may be represented by his guardian, and of a deceased person by his execu- tor or administrator. [Amendment approved March 30. 1874: Amendments 1873-4, 203. In ef- fect July 1, 1874.] § 314. If from any cause an election does not take place on the day appointed in the by-laws, it may be held on any day thereafter as is pro- vided for in such by-laws, or to which such elec- tion may be adjourned or ordered by the direc- tors. If an election has not been held at the ap- pointed time, and no adjourned or other meeting for the purpose has been ordered by the directors, a meeting may be called by the stockholders as provided in section 310 of this article. Stats. 1850. 347. sec. 168; 1853. 88; 1862. 199; 1861, 610; 1863. 624. § 315. Upon the application of any person or body corporate aggrieved by any election held by any corporate body, the District Court of the dis trict in which such election is held must proceed forthwith to hear the allegations and proofs of the parties, or otherwise inquire into the matters of complaint, and thereupon confirm the election, or- 87 FORMATION OF CORPORATIONS. §§ 316-319 der a iiew oue, or direct such other relief in the premises as accords with right and justice. Upon filing the petition, and before any further pro- ceedings are had under this section, five days' notice of the hearing must be given, under the direction of the court or the judge thereof, to the adverse party or those to be affected thereby. [Amendment approved April 1, 1878; Amendments 1877-8, 70. In effect April 1, 1878.] § 316. Any oflicer of a corporation who will- fully gives a certificate, or willfully maizes an of- ficial report, public notice, or entry in any of the records or boolvs of the corporation, concerning the corporation or its business, which is false in any material representation, shall be liable for all the damages resulting therefrom to any person injured thereby; and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and severally liable. [Amendment approved March 30, 1874; Amendments 1873-4, 203. In effect July 1. 1874.] renal Code, sees. 558, 5G4. § 317. When all the stockholders or members of a corporation are present at any meeting, how- ever called or notified, and sign a written consent thereto on the record of such meeting, the doings of such meeting are as valid as if had at a meet ing legally called and noticed. § 318. The stockholders or members of such corporation, when so assembled, may elect officers to fill all vacancies then existing, and may act upon such other business as might lawfully be transacted at regular meetings of the corporation. § 319. The meetings of the stockholders and §§ 320-321a FORMATION OF CORPORATIONS. 88 board of directors of a corporation must be held at its office or principal place of business. Changing place of business: See sec. 321. § 320. When no provision is made in the by- laws for regular meetings of the directors and the mode of calling special meetings, all meetings must be called by special notice in writing, to be given to each director by the secretary, on the or- der of the president, or if there be none, on the order of two directors. § 321. Every corporation doing a banking bus- iness in this State must keep in its office, in a placn accessible to the stockholders, depositors, and creditors thereof, and for their use, a book, containing a list of all stockholders in such cor- poration, and the number of shares of stock held by each; and every such corporation must keep pot-ted in its office, in a conspicuous place, accessi- ble to the public generally, a notice, signed by the pr'.'sident or secretary, showing: First, The names of the directors of such corporation. Second, The number and value of shares of stock held by each director. The entries on such book, and such no- tice, shall be made and posted within twenty-four lours after any transfer of stock, and shall be conclusive evidence against each director and stockholder of the number of shares of stock held by each. The provisions of this section shall ap- ply to all banking corporations, formed or existing before twelve o'clock, noon, of the day on which this Code took effect, as well as to those formed after such time. [New section approved Janu- ary 29. 1876; Amendments 1875-6. 72. In effect in sixty days.] § 321a. Every corporation that has been or may be created under the general laws of this State, may change its principal place of business from 89 CORPORATE STOCK. 5 322 one place to another in the same county, or from one city or county to another city or county within this State. Before such change is made, the consent in writing, of the holders of tw^o-thirds of the cap- ital stocli must be obtained and filed in the office of the corporation. When such consent is obtain- ed and filed, notice of the intended removal oi change must be published, at least once a week, for three successive weelvs, in some newspaper published in the county wherein said principal place of business is situated, if there is one pub lished therein; if not, in a newspaper of an ad- joining county, giving the name of the county or city where it is situated, and that to which it is intended to remove it. [New section approved April 3, 1876; Amendments 1875-6, 73. In effect April 3. 1876.] CHAPTER II. CORPORATE STOCK. ARTICLE I. STOCK AND STOCKHOLDERS. § 322. Liabilities of stockholders. They may be released, when. § 323. Certificates, how and when issued. § 324. Transfer of shares. § 325. Transfer of shares held by married women, &c. Div- idends payable to married women. § 326. Non-resident stoclsholders. Bonds. § 327. Contract to relieve directors void. § 322. Each stockholder of a cor])oration is in- dividually ant remaining un- paid. § 334. What order shall contain. § 335. Notice of assessment. Form. § 336. Publication and service. § 337. Delinquent notice. Form. § 338. Contents of notice. § 339. How published. § 340. Jurisdiction acquired, how. § 341. Sale to be by public auction. ; :U2. Highest bidder to be the purchaser. § 343. In default of bidders, corporation may purchase. § 344. Disposition of stock purchased by corporation. § 345. Extension of time of delinquent sale. § 343. Assessments shall not be invalidated. § 347. Action for recovery of stock, and limitation thereof. § 348. Affidavits of publication. Affidavits of sale. To be filed. § 349. Waiver of sale. Action to recover assessment. § 331. The directors of any corporation formed or existins: under the laws of this State, after one- fourth of its capital stock has been subscribed, may. for the purpose of paying expenses, conduct- ing: business, or payin.s: debts, levy and collect as- sessments upon the subscribed capital stock there- of, in the manner and form, and to the extent pro- vided herein. [Amendment approved March 30, 1874: Amendments 1873-4, 206. In effect July 1 1874.] § 332. No one assessment must exceed ten per cent, of the amount of the capital stock named in 95 CORPORATE STOCK. §§ 333, 33^ the articles of incorporation, except in the cases in this section otherwise provided for, as follows: 1. If the whole capital of a corporation has not been paid up, and the corporation is unable to meet its liabilities or to satisfy the claims of its creditors, the assessment may be for the full amount unpaid upon the capital stock; or if a less amount is sufficient, then it may be for such a percentage as will raise that amount; 2. The directors of railro^ad corporations may assess the capital stock in installments of not more than ten per cent, per month, unless in the arti- cles of incorporation it is otherwise provided; 3. The directors of fire or marine insurance cor- porations may assess such a percentage of the cap- ital stock as they deem proper. § 333. No assessment must be levied while any portion of a previous one remains unpaid; un- less: 1. The iDower of the corporation has been exer- cised in accordance with the provisions of this ar- ticle for the purpose of collecting such previous assessment; 2. The collection of the previous assessment has been enjoined; or, 3. The assessment falls within the provisions of either the first, second, or third subdivisions of section 332. § 334. Every order levying an assessment must specify the amount thereof, when, to whom, and where payable; fix a day, subsequent to the full term of publication of the assessment notice, on which the unpaid assessments shall be delinquent, not less than thirty nor more than sixty days from the time of malting the order levying the assess- ment; and a day for the sale of delinquent stock, not less than fifteen nor more than sixty days from the day the stock is declared delinquent. §§ 335, 336 CORPORATE STOCK. 96 § 335. Upon the making of the order, the sec- retary shall cause to be published a notice there- of, in the following form: (Name of corporation in full. Location of prin- cipal place of business.) Notice is hereby given, that at a meeting of the directors, held on the (date), an assessment of (amount) per share was levied upon the capital stock of the corporation, payable (when, to whom, and where). Any stock upon which this assessment shall remain unpaid on the (day fixed) will be delinquent and adver- tised for sale at public auction, and, unless pay- ment is made before, will be sold on the (day ap- pointed), to pay the delinquent assessment, to- gether with costs of advertising and expenses of sale. (Signature of secretary, with location of office.) § 336. The notice must be personally served upon each stockholder, or, in lieu of personal ser- vice, must be sent through the mail, addressed to each stockholder at his place of residence, if known, and if not known, at the place where the principal office of the corporation is situated, and be published once a week, for four successive weeks, in some newspaper of general circulation and devoted to the publication of general news, pub- lished at the place designated in the articles of in- corporation as the principal place of business, and also in some ne^vspaper published in the county in which the works of the corporation are situated, if a paper be published therein. If the works of the corporation are not within a State or Terri- tory of the United States, publication in a paper of the place where they are situated is not neces- sary. If there be no newspaper published at the place designated as the principal place of business of the corporation, then the publication must be made in some other newspaper of the county, if i,7 CORPORATE STOCK. §§ 33/. 338 there be one, and if there be none, then in a news- paper published in an adjoining county. [Amend- ment approved March 3U, 1874; Amendments 1873-4, 2UG. In effect July 1, 1874.] § 337. If any portion of the assessment men- tioned in the notice remains unpaid on the day specified therein for declaring the stock delin- quent, the secretary must, unless otherwise or- dered by the board of directors, cause to be pub- lished in the same papers in which the notice liereiubefore provided for shall have been pub- lished, 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 as- sessment levied on the (date), (and assessments levied previous thereto, if any), the several amounts set opposite the names of the respective shareholders, as follows: (Names, number of cer- tificate, number of shares, amount.) And in ac- cordance with law (and an order of the board of directors, made on the [date], if any such order shall have been made), so many shares of each parcel of such stock as may be necessary, will be sold, at the (particular place), on the (date), at (the hour) of such day, to pay delinquent assess- ments thereon, together with costs of advertising and expenses of the sale. (Name of secretary, with location of office.) § 338. The notice must specify every certificate of stock, the number of shares it represents, and the amount due thereon, except where certificates mny not have been issued to parties entitled thereto, in which case the number of shares and amount due thereon, together with the fact that the certificates for such shares have not been is- sued, must be stated. Civ. Code— 9 §§ 339-343 CORPORATE STOCK. 98 § 339. The notice, when published in a daily paper, must be published for ten days, excluding Sundays and holidays, previous to the day of sale. When published in a weekly paper, it must be published in each issue for two weeks previous to the day of sale. The first publication of all de- linquent sales must be at least fifteen days prior to the day of sale. § 340. By the publication of the notice, the cor- poration acquires jurisdiction to sell and convey a perfect title to all of the stock described in the notice of sale upon which any portion of the as- sessment or costs of advertising remains unpaid at the hour appointed for the sale, but must sell no more of such stock than is necessary to pay the assessments due and costs of sale. § 341. On the day, at the place, and at the time appointed in the notice of sale, the secretary must, unless otherwise ordered by the directors, sell or cause TO be sold at public auction, to the highest bidder for cash, so many shares of each parcel of the described stock as may be necessary to pay the assessment and charges thereon, according to the terms of sale; if payment is made before the time fixed for sale, the party paying is only re- quired to pay the actual cost of advertising, in addition to the assessment. § 342. The person offering at such sale to pay the assessment and costs for the smallest number of shares or fraction of a share is the highest bid- der, and the stock purchased must be transferred to him on the stock books of the corporation, on payment of the assessment and costs. § 343. If, at the sale of stock, no bidder offers the amount of the assessments and costs and ("hnrges due, the same may be bid in and pur- 99 CORPORATE STOCK. §§ 344-346 chased by the corporation, through the secretary, president, or any director thereof, at the amount of the assessments, costs, and charges due; and the amount of the assessments, costs, and charges must be credited as paid in full on the books of the corporation, and entry of the trans- fer 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 ui)on the stock held by the stockholders of the corporation. § 344. All purchases of its own stock made by any corporation vest the legal title to the same in the corporation; and the stock so purchased is held subject to the control of the stockholders, who 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 corpo- ration by purchase, a majority of the remaining shares is a majority of the stock for all purposes of election or voting on any question at a stock- holders' meeting. § 345. The dates fixed in any notice of assess- ment or notice of delinquent sale, published ac- cording to the i)rovisions hereof, may be extended from time to time for not more than thirty days, by order of the directors, entered on the records of the corporation; but no order extending the time for the performance of any act specified in any notice is effectual unless notice of such ex- tension or postponement is appended to and pub- lished with the notice to which the order relates. § 346. No assessment is invalidated by a fail- §§ 347, 348 CORPORATE STOCK. 100 ure to make publication of tlie notices hereinbe- fore provided for, nor by tlie nonperformance of any act required in order to enforce the payment of the same: but in case of any substantial error or omission in the course of proceedings for collec- tion, all previous proceedings, except the levying of the assessment, are void, and publication must be begun anew. § 347. No action must be sustained to recover stock sold for delinquent assessments, upon the ground of irregularity in the assessment, irregu- larity or defect of the notice of sale or defect or ir- regularity in the sale, unless the party seeking to maintain such action first pays or tenders to the corporation, or the party holding the stock sold, the sum for which the same was sold, together with all subsequent assessments which may have been paid thereon and interest on such sums from the time they were paid; and no such action must be sustained unless the same is commenced by the filing of a complaint and the issuing of a sum- mons thereon within six months after such sale was made. § 348. The publication of notice required by this article may be proved by the affidavit of the printer, foreman, or principal clerk of the news- paper in which the same was published: and the affidavit of the secretary or auctioneer is prima facie evidence of the time and place of sale, of the quantity and particular description of the stock sold, and to whom, and for what price, and of the fact of the purchase money being paid. The affi- davits must be filed in the office of the corporation, and copies of the same, certified by the secretary thereof, are prima facie evidence of the facts therein stated. Certificates, signed by the secre- tary, and under the seal of the corporation, are prima facie evidence of the contents thereof. 101 CORPORATE POWERS. §§ 349, 354 L Amendment, approved March 30, 1874; Amend- ments 1873-4, 207. In effect July 1, 1874.] § 349. On the day specified for declarinp: th« stock delinquent, or at any time subsequent there to and before the sale of the delinquent stoclj, the board of directors may elect to waive further pro ceedings under this chapter for the collection of delinquent assessments, or any part or portion thereof, and may elect to proceed by action to re- cover the amount of the assessment and the costs and expenses already incurred, or any part or por- tion thereof. CHAPTER III. CORPORATE POWERS. Article I. General Powers, §§ 354-361. II. Records. §§ 377, 378. III. Examination of Corporation, §§ 382-384. IV. Judgment against and Sale of Corporate Prop- erty, §§ 388-393. ARTICLE I. GENERAL POWERS. § 354. Powers of corporations. § 35.'). Limitation of powers. § 356. Banking expressly prohibited. § 357. Misnomer does not invalidate Instrument. § 358. Corporation to organize within one year. § 359. Increasing and diminishing capital stock, how. § 330. Corporations may acquire real property, and how much. § 361. Consolidation of mining corporations. § 362. Amendment of articles or certificate of incorpora- tion. § 363. Power to hold real estate. § 363. Erroneous filing of articles of Incorporation. 'i :>(Jl. Sale of property in foreign country. § 354. Every corporation, as such, has power: 1. Of succession by its corporate name, for the period limited; and when no period is limited, per- petually; § 354 CORPORATE POWERS. 102 2. To sue and be sued, in any court; 3. To make and use a common seal, and alter the same at pleasure; 4. To purchase, hold, and convey such real and personal estate as the purposes of the corporation may require, not exceeding the amount limited in this part; 5. To appoint such subordinate officers or agents as the business of the corporation may require, and to allow them suitable compensation; 6. To make by-laws, not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of its stock; 7. To admit stockholders or members, and to sell their stock or shares for the payment of as- sessments or installments; 8. To enter into any obligations or contracts es- sential to the transaction of its ordinary affairs, or for the purposes of the corporation. The Code, in defining a corporation, says it has "certain powers and duties of a natural person": Sec. 283. Section 354 proceeds to enumerate these powers, and section 355 limits its powers to those enumerated and to those necessarily incidental. Act providing for payment of wages of mechan- ics and laborers, see post. Appendix, p. 750. Subd. 1. Succession for period limited: See Code limit of fifty years, sec. 290. Limit for homestead corporations ten years: Sec. 557. Where action against corporation may be brought: See Const. Cal. 1879, art. 12, sec. 15; see Code Civ. Proc, sec. 395. Acquiring property by eminent domain: See Code Civ. Proc, sees. 1237 et seq. Making contracts generally: See infra, subd. 8. Subd. 6. Power to make by-laws: See ante, sec. 301. Selling delinquent shares: See ante, sees. 331 et seq. 103 CORPORATE POWERS. §§ 355-358 I*owers of municipal corporations: See Polit. Code. § 355. In addition to the powers enumerated in the preceding section, and to those expressly given in that title of this part under which it is incorporated, no corporation shall possess or exer- cise any corporate powers, except such as are necessary to the exercise of the powers so enum- erated and given. Incidental powers.— This section is a negative grant of incidental powers, with respect to which, see sec. 354. § 356. No corporation shall create or issue bills, notes, or other evidences of debt, upon loans or otherwise, for circulation as money. Issuing or circulating paper money, except as authorized by the United States, punished by Penal Code, § 648. Constitutional provision to the same purpose: Const. Cal. 1879, art. 12, sec. 5. That this limita- tion upon corporate powers does not prevent the execution of negotiable instruments, see sec. 354, subd. 8. § 357. The misnomer of a corporation in any written instrument does not Invalidate the instru- ment, if it can be reasonably ascertained from it what corporation is intended. § 358. If a corporation does not organize and commence the transaction of its business or the construction of its works within one year from the date of its incorporation, its corporate powers cease. The due incorporation of any company, claiming in good faith to be a corporation under this part, and doing business as such, or its right to exercise corporate powers, shall not be inquired into, collaterally, in any private suit to which such de facto corporation may be a party: but such in- § 359 CORPORATE POWERS. 104 quiry may be had at the suit of the State on in- formation of the attorney general. I*rovision respecting railroad companies, two years: See sec. 468, post. Same respecting street railroads: See sec. 502, post. § 359. No corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase oil stock or indebtedness is void. Every corporation may increase or diminish its capital stock, create or increase its bonded indebt- edness, subject to the following provisions: First. The capital stock of a corporation may be increased or diminished at a meeting of the stock- holders by a vote representing at least two-thirds of the subscribed capital stock; such meeting must be called by the board of directors, and notice must be given by publication in a newspaper pub- lished in the county where the principal place of business of such corporation is located, or if there be none published in said county, then in a news- paper published in an adjoining county, such pa- per to be designated by the board of directors in the order calling the meeting. Second. The notice must specify the object of the meeting, and the amount to which it is pro- posed to increase or diminish the capital stock, the time and place of holding the meeting, which lat- ter must be at the principal place of business of the corporation, and at the building where the board of directors usually meet. The notice herein provided must be published once a week for at least sixty days. The capital stock cannot be di- minished to an amount less than the indebtedness of the corporation. Third. The bonded indebtedness of a corporation may be creav^jd or increased hy a vote of the stockholders representing at least two-thirds of 105 CORPORATE POWERS. § 359 the subscribed capital stock at a meeting called by the board of directors, and after notice of the time and place of the meeting, published in the same manner and for the time above prescribed, wliich notice shall state the amount of the bonded indebtedness which it is proposed to create, or the amount to which it is proposed to increase such indebtedness, and shall in all other respects con- tain the same matters as are above provided and set forth in tlie notice of a meeting to increase or diminish the capital stock. Fourth. In addition to the notice by publication the secretary of the corporation shall also address a notice to each of the stockholders whose names appear on the company's books as sufficiently ad- dressed, at his place of residence if known, and if not known, then at the principal place of busi- ness of the corporation, which notice shall be mailed to such stockholders at least thirty days before the day appointed for such meeting. And upon such increase or diminution of the capital stock or creation or increase of bonded in- debtedness being made as herein provided, a cer- tificate must be signed by the chairman and sec- retary of the meeting and a majority of the direc- tors, showing a compliance with the requirements of this section, the amount to which the capital stock has been increased or diminished, or the amount of the bonded indebtedness created or to which the bonded indebtedness may have been in creased, and the amount of stock represented at the meeting, and the whole vote by which the ob- ject was accomplished. The certificate must be filed in the office of the clerk of the county where the original articles of incorporation are filed, and a certified copy thereof in the office of the secre- tary of state; and thereupon the capital stock shall be so increased or diminished, or the bonded indebtedness may be created or increased accord- ingly. ^^■hen tlie by-laws of the corporation pre- §§ 360, 361 CORPORATE POWERS. 106 scribe the paper in which notices of meeting are to be published, the notices herein provided for shall be published in such paper unless publication thereof shall have ceased. [Amendment approved March 23, 1S93; Stats. 1S93, p. 191.] The amendment of 1S85, supra, was an amend- ment to the section as amended in 1883: Stats. 18^3. 31. '"The preceding sections of this article were taken from Stats. 1850, 347, sees. 1-6. See also Stats. 1853. 88; 1861, 85; 1862, 540, 199, 110; 1866, 747; 1868, 325": Commissioners' note. § 360. No corporation shall acquire or hold any more real property than may be reasonably neces- sary for the transaction of its business, or the con- struction of its works, except as otherwise spe- cially provided. A corporation may acquire real property, as provided in Title VII.. Part III., Code of Civil Procedure, when needed for any of the uses and purposes mentioned in said title. [Amendment approved March 30, 1874: Amend- ments 1873-4. p. 208. In effect July 1, 1874.] Act authorizing owning of lots and building where business carried on: See Appendix, p. 7*33. Power of insurance corporations to acquire land: See sec. 415. Power of railroad corijoration to acquire land: See sec. 465. § 361. It shall be lawful for two or more corpo- rations formed, or that may hereafter be formed, under the laws of this State, for mining purposes, which ovrn or possess mining claims or lands ad- joining each other, or lying in the same vicinity, to consolidate their capital stock, debts, property, assets, and franchises, in such manner and upon such terms as may be agreed upon by the respec- tive boards of directors or trustees of such com- panies so desiring to consolidate their interests; 107 CORPORATE POWERS. § 361 but no such eousolidation shall take place without the written conseut of the stockholders represeut- iug two-thirds of the capital stock of each com- pany, and no such consolidation shall, in any way, relieve such companies, or the stockholders there- of, from any and all just liabilities; and in case of such consolidation, due notice of the same shall be given, by advertising, for one month, in at least one newspaper in the county and State where the said mining property is situated, if there be one published therein and also in one newspaper pub- lished in the county, or city and county, where the principal place of business of any of said com- panies shall be. And when the said consolidation is completed, a certificate thereof, containing the manner and terms of said consolidation, shall be filed in the oflice of the county clerk of the county in which the original certificate of incorporation of any of said companies shall be filed, and a copy thereof shall be tiled in the otfice of the secretary of state; such certificate shall be signed by a ma- jority of each board of trustees or directors of the original companies, and it shall be their duty to call, within thirty days after the filing of such certificate, and after at least ten days' public notice, a meeting of the stockholders of all of said companies so consolidated, to elect a board of trustees or directors for the consolidated company, for the year thence next ensuing. The said certifi- cate shall also contain all the requirements pre- scribed by section two hundred and ninety of said Civil Code. This act shall apply to all corporations formed under the laws of this State, whether formed under the said Civil Code or prior thereto. [New section approved March 20, 1876; Amendments 1875-6, p. 75. In effect March 20, 1876.] § 362. Any corporation may amend its articles of association or certificate of incorporation by a g362 CORPORATE POWERS. 108 majority vote of its board of directors or trustees, and by a vote or written assent of the stoclihold- ers representing at least two-thirds of the sub- scribed capital stocli of such corporation; and a copy of the said articles of association or certi- ficate of incorporation, as thus amended, duly cer- tified to l»e correct by the president and secretary of the board of directors or trustees of such corpo- ration, shall be filed in the oflice or oflices where the original or certificate of incorporation are re- quired by this code to be filed; and from the time of so filing such copy of the amended articles of association or certificate of incorporation, such corporation shall have the same powers, and it and the stockholders thereof shall thereafter be subject to the same liabilities, as if such amend- ment had been embraced in the original articles or certificate of incorporation; provided, that the time of the existence of such corporation shall not be by such amendment extended beyond the time fixed in the original articles or certificate of incor- poration; provided further, that such original and amended articles or certificate of incorporation shall together contain all the matters and things required under which the original articles of asso- ciation or certificate of incorporation were exe- cuted and filed; and provided further, that nothing herein contained shall be construed to cure or amend any defect existing in any original certifi- cate of incorporation heretofore filed, by reason that such certificate does not set forth the matters required to make the same valid as a certificate of incorporation at the time of its filing; and also provided, that if the assent of two-thirds of the said stockholders to such amendment has not been obtained, that a notice of the intention to make the amendment shall first be advertised for thirty (30) days in some newspaper published in the town or county, or city and county, in which the principal place of business of the association oi 109 CORPORATE POWERS. § 363 corporation is located, before the filing of the pro- posed amendment; and provided also, that noth- ing in this section shall be construed to authorize any corporation to diminish its capital stock. [Amendment approved March 11, 1893; Stats. 1893, p. 131.] § 363. By a unanimous vote of all the directors at any regular meeting, any corporation existing or hereafter to be formed under the laws of this State may acquire and hold the lots and building on and in which its business is carried on, and may improve the same to any extent required for the convenient transaction of its business. [In ef- fect March 5, 1889. New section added by act ap- pi'oved March 5, 1889; Stats. 1889, p. G7.] § 363. When articles of incorporation have been prepared, subscribed, and executed in accordance with the provisions of sections two hundred and ninety and two hundred and ninety-two of the Civil Code, and such original articles filed by error or inadvertence with the clerk of a county other than that named in the articles of incorporation as the county in which the principal place of business is to be transacted, and the Secretary of State shall have issued a certificate of incorporation based on a certified copy of such original articles of incor- poration, any stockholder or director of such cor- poration may petition the Superior Court of the county in which said original articles of incorpora- tion were filed for an order to withdraw such ori- ginal articles of incorporation, and file in place thereof a certified copy of the copy thereof on file in the office of the Secretary of State. Such peti- tion must be verified, and must state clearly the facts, showing that such articles of incorporation were filed by inadvertence and mistake; and notice of the hearing of said petition must be given for at least ten days before the day of hearing, by Civ. Code— 10 g3(U CORPORATE POWERS. 110 publication in a newspaper published in the coun- ty where such petition is filed. Upon the day set for hearing the petition the Superior Court may grant an order allowing such original articles of incorporation to be withdrawn, and a certified copy of the copy in the otfice of the Secretary of State in the place thereof filed; and the original articles of incorporation must be filed within ten days thereafter in the county in which the prin- cipal place of business is to be transacted, as stated in such articles of incorporation, and a cer- tified copy of the order allowing such action must be filed with the certified copy in the oftice of the Secretary of State, after which said corporation shall be entitled to all rights and privileges of a private corporation, and the title to any property It may have previously acquired shall not be af- fected by reason of the failure to file the original articles of incorporation in the first instance. [New section approved March 19, 1889; Stats. 1889, p. 332. In effect immediately.] § 364. Any corporation of tliis state owning grants, concessions, franchises, and properties, or any thereof, in any foreign country, may sell and convey the s^me to the government of such for- eign countrJ^ or to any person or persons, or any corporation or corporations, or association or as- sociations, created by or existing under the laws of this or any other state or the United States, or any foreign government; provided, Jwu-ever. that the powers hereby granted shall only be exer- cised by a majority of the entire board of directors of such corporation of this state, "^ith the con- currence in writing of the holders of two thirds in amount of the capital stock thereof. [New sec- tion added March 13, 1899. In effect immediately. Became a law, under constitutional provision, without the Governor's approval. March 13. 1899.] in CORPORATE POWERS. §§ 377, 378 ARTICLE II. RECORDS. § 377. Records— of what, and how kept. § 378. Other records to be kept by corporations for profit, and others. § 377. All corporations for profit are required to keep a record of all their business transactions; a journal of all meetin.ixs of their directors, mem- bers, or stockholders. Avith the time and place of holding the same, whether regular or special, and if special, its object, how authorized, and the no- tice thereof given. The record must embrace every act done or ordered to be done; who were present, and who absent; and, if requested by any director, member, or stockholder, the time shall be noted when he entered the meeting or obtained leave of absence therefrom. On a similar request the ayes and noes must be taken on any proposi- tion, and a record thereof made. On similar re- quest, the protest of any director, member, or stockholder, to any action or proposed action, must be entered in full— all such records to be open to the inspection of any director, member, stock- holder, or creditor of the corporation, Refusal to permit inspection: See Penal Code, sees. oGo, 569. ! § 378. In addition to the records required to be I kept by the preceding section, corporations for I profit must keep a book, to be known as the "Stock [ and Transfer Book," in which must be kept a rec- i ord of all stock; the names of the stockholders, or • members, alphabetically arranged; installments t paid or unpaid; assessments levied and paid or un- ; paid; a statement of every alienation, sale, or I transfer of stock made, the date thereof, and by , and to whom; and all such other records as the by- §§ 382, 383 CORPORATE POWERS. 112 laws prescribe. Corporations for religious and benevolent purposes must provide in their by-laws for such records to be kept as may be necessary. Such stocli and transfer book must be kept open to the inspection of any stockholder, member, or creditor. See acts concerning Statements by Banks and Bankers. Appendix, p. TIG et seq. ARTICLE III. EXAMINATION OF CORPORATIONS, ETC. § 382. Examination into affairs of corporation, how made by officers of State. § 383. Examination made by the legislature. § 384. Chapter and article may be repealed. § 382. The attorney general or district attor- ney, whenever and as often as required by the governor, must examine into the affairs and con- dition of any corporation in this State, and re- port such examination, in writing, together with a detailed statement of facts, to the governor, who must lay the same before the legislature: and for that purpose the attorney general or district attor- ney may administer all necessary oaths to the di- rectors and officers of any corporation, and may examine them on oath in relation to the affairs and condition thereof, and may examine the books, pa- pers, and documents belonging to such corpora- tion, or appertaining to its aff'airs and condition. Permitting inspection of books: See Penal Code. sec. 565. § 383. The legislature, or either branch thereof, may examine into the affairs and condition of any corporation in this State at all times: and. for that purpose, any committee appointed by the legisla- ture, or either branch thereof, may administer all necessarv oaths to the directors, officers, and 113 CORPORATE POWERS. § 384 Stockholders of sucli corporation, aiid may exam- ine them on oatli in relation to the affairs and con- dition thereof; and may examine the safes, books, papers, and documents belonging to such corpora- tion, or pertaining to its affairs and condition, and compel the production of all keys, books, papers, and documents by summary process, to be issued on application to any court of record or any judge thereof, under such rules and regulations as the court may prescribe. Permitting inspection of books: See Penal Code, sec. 5G5. § 384. The legislature may at any time amend or repeal this part, or any title, chapter, article, or section thereof, and dissolve all corporations cre- ated thereunder; but such amendment or repeal does not, nor does the dissolution of any such cor- poration, take away or impair any remedy given against any such corporation, its stockholders, or officers, for any liability which has been previous- ly incurred. Note- Amending or repealing charter of corpora- tions.— In the constitution of California, in force when this code was adopted, was the following sec- tion: "Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes. All general laws and spe- cial acts passed pursuant to this section may be al- tered from time to time or repealed": Art. 4, sec. 31. The constitution of 1879, art. 12, sec. 1, preserves this section in the following language: "Corpora- tions may be formed under general laws, but shall not be created by special act. All laws now in force in this state concerning corporations, and all laws that may be hereafter passed pursuant to this section may be altered from time to time or repealed." The Code Commissioners quote the sec- tion from the former Constitution, and say: "Sec- §§ 388, 389 CORPORATE POWERS. U4 tion 384 was inserted iu this code out of an abund- ance of caution, and not because it was deemed necessary, for there can be but little doubt that the constitutional provision quoted at the head of this note enters into and becomes a part of the contract, thereby reserving to the legislature the right to repeal, impair, or alter any law relative to the formation of corporations, even though the result reached would be the dissolution of every corporation organized within the State." ARTICLE lY. JUDGMENT AGAINST AND SALE OF CORPORATE PROPERTY. § 388. Franchise may be treated as property, and sold un- der execution. § 389. Purchaser to transact business of corporation. I 390. Purchaser may recover penalties, &c. § 391. Corporation to retain powers after sale. § 392. Redemption of franchise. § 393. When proceedings under execution may be had. § 388. For the satisfaction of any judgment against any person, company, or corporation au- thorized to receive tolls, the franchise, and all the rights and privileges thereof, may be levied upon and sold under execution, in the same manner, and with the same effect, as any other property. [Approved February 23, 1897, c. 20.] Seizure on execution: See Code Civ. Proc, sec. 688. § 389. The purchaser at the sale must receive a certificate of purchase of the franchise, and be immediately let into the possession of all prop- erty necessary for the exercise of the powers audi the receipt of the proceeds thereof, and must there-j after conduct the business of such corporation,! with all its powers and privileges, and subject tdj all its liabilities until the redemption of the same, as hereinafter provided. 115 CORPORATE POWERS. §§ 390-393 § 390, The purchaser or his assignee is entitled to recover any penalties imposed by law and re- coverable by the corporation for an injury to the franchise or property thereof, or for any damages or other cause, occurring during the time he holds the same, and may use the name of the corpora- tion for the purpose of any action necessary to re- cover the same. A recovery for damages or any penalties thus had is a bar to any subsequent ac- tion by or on behalf of the corporation for the same. § 391. The corporation whose franchise is sold, as in this article provided, in all other respects re- tains the same powers, is bound to the discharge of the same duties, and is liable to the same pen- alties and forfeitures, as before such sale. § 392. The corporation may, at any time with- in one year after such sale, redeem the franchise, l^y paying or tendering to the purchaser thereof the sum paid therefor, with ten per cent interest thereon, but without any allowance for the toll which he may in the meantime have received; and upon such payment or tender the franchise and all the rights and privileges thereof revert and belong to the corporation, as if no such sale had been made. § 393. The sale of any franchise under execu- tion must be made in the county in which the corporation has its principal place of business, or in which the property, or some portion thereof, upon which the taxes are paid, is situated. [Amendment approved March 30, 1874; Amend- ments 1873-4, 209. In effect July 1, 1874.1 §§ 399-401 EXTENSION, ETC., OF CORPORATIONS. U6 CHAPTER IV. EXTENSION AND DISSOLUTION OF CORPORATIONS. § 399. Proceedings to disincorporate. § 400. On dissolution, directors to be trustees for creditors. § 401. Any corporation may extend its corporate existence, how. § 402. How corporations may continue their existence. (Re- pealed.) § 403. Title I. to apply to all corporations with certain ex- ceptions. § 399. The dissolution of corporations is pro- vided for: 1. If involuntary— in Chapter V. of Title X., Part II., of the Code of Civil Procedure. See Code Civ. Proc, sees. 802, 227. 2. If voluntary— In Title VI., Part III., of the Code of Civil Procedure. [Sees. 1227-1233.] Act providing for dissolution of savings banks, trust companies and banks of deposit: See post, Appendix, p. 721. § 400. Unless other persons are appointed by the court, the directors or managers of the affairs of such corporation at the time of its dissolution are trustees of the creditors and stockholders or members of the corporation dissolved, and have full power to settle the affairs of the corporation. § 401. Every corporation formed for a period less than fifty years may, at any time prior to. the expiration of the term of its corporate existence, extend such term to a period not exceeding fifty years from its formation. Such extension may be made at any meeting of the stockholders or mem- bers, called by the directors expressly for consid- ering the subject if voted by stockholders repre- senting two-thirds of the capital stock; or by two- 117 EXTENSION, ETC.. OF CORPORATIONS. §§ 402, 403 thirds of the members; or may be made upon the written assent of that number of stockholders or members. A certificate of the proceedings of the meeting upon such vote, or upon such assent, shall be signed by the chairman and secretary of the meeting and a majority of the directors, and be filed in the office of the county clerli, where the original articles of incorporation were filed, and a certified copy thereof in the office of the secre tary of state, and thereupon the term of the corpo- ration shall be extended for the specified period. [Amendment approved March 30, 1874; Amend- ments 1873-4, 209. In effect July 1, 1874.] § 402. [Repealed by act approved March 30, 1874; Amendments 1873-4, 209. In effect July 1, 1874.] § 403. The provisions of this title are applica ble to every corporation, unless such corporation is excepted from its operation, or unless a special provision is made in relation thereto inconsistent with some provision in this title, in which case the special provision prevails. See Act of April 1, 1872, requiring Foreign Cor- porations to designate Resident upon whom Pro cess may be served, post. Appendix, p. 764. §§ 414, 415 INSURANCE CORPORATIONS. 118 TITLE II. INSURANCE CORPORATIONS. Chapter I. General Provisions, §§ 414-419. II. Fire and Marine Insurance Corpora- tions, §§ 424-430. III. Mutual Life, Health, and Accident In- surance Corporations, §§ 437-458. CHAPTER I. GENERAL PROVISIONS. § 414. Subscriptions to capital stock opened, and hovr col- lected. § 415. Purchase and conveyance of real estate. § 416. Policies, how issued and by whom signed. § 417. Dividends, of what and when declared. § 418. Directors liable for loss on insurance in certain cases. § 419. Capital to be at least two hundred thousand dollars. § 420. Exception, capital of one hundred thousand dollars. § 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 pro- ceed in the manner specified, or in their by-laws, or if none, then in such manner as they may by order adopt, to open books of subscription to the capital stock then unsubscribed, and to secure subscriptions to the full amount of the fixed capi- tal; to levy assessments and installments thereon, and to collect the same, as in Chapter II. of Title I. provided. Insurance in general: See post, sees. 2527-2766. § 415. No insurance corporation must purchase, hold, or convey real estate, except as hereinafter set forth. to-Tvit: 1. Such as is requisite for its accommodation in the convenient transaction of its business, not ex- ceeding in value one hundred and fifty thousand dollars; 119 INSURANCE CORPORATIONS. §§ 416, 417 2. Such as is conveyed to it, or to auy persou for it, by way of mortgage or in trust, or otherwise, to secure or provide for the payment of loans pre- viously contracted, or for moneys due; 3. Such as is purchased at sales upon deeds of trust or judgments obtained or made for such loans or debts; 4. Such as is conveyed to it in satisfaction of debts previously contracted in the course of its dealings. All such real estate so acquired, which is not re- quisite for the accommodation of such corporation in the transaction of its business, must be sold and disposed of within five years after such cor- poration acquired title to the same. No such real estate must be held for a longer period than five years, unless the corporation first procures a cer- tificate from the insurance commissioner that the interest of the corporation will suffer materially by a forced sale of such real estate, in which event the time for the sale may be extended to such time as the insurance commissioner directs in the certificate. § 416. All policies made by insurance corpora- tions must be subscribed by the president or vice president, or in case of the death, absence, or dis- ability of those officers, by any two of the direc- tors, and countersigned by the secretary of the corporation. All such policies are as binding and obligatory upon the corporation as if executed over the corporate seal. § 417. The directors of every insurance corpo- ration, at such times as their by-laws provide, must make, declare, and pay to the stocliholders dividends of so much of the net profits of the corporate business and interest on capital invested as to them appears advisable; but the moneys re- ceived and notes taken for premium on risks which §§ 418, 419 INSURANCE CORPORATIONS. 120 are undetermined and outstanding at tlie time of making the dividend must not be treated as prof- its, nor divided, except as provided in Chapter II. of this title. Declaring dividends: See ante, sec. 309. § 418. If any insurance corporation is under liabilities for losses to an amount equal to its cap- ital stock, and the president or directors, after knowing the same, make any new or further in- surance, the estates of all who malve such insur- ance, or assent thereto, are severally and jointly liable for the amount of any loss which takes place under such insurance. § 419. Every company, corporation, or associa- tion hereafter formed or organized under the laws of this State for the transaction of business in fire, marine, inland navigation, or life insurance, must have a subscribed capital stock equal to at least two hundred thousand dollars, twenty-five per cent of which must be paid in previous to the is- suance of any policy, and the residue within twelve months from the day o^filing the certifi- cate of incorporation. Ko person, corporation, or association organized or formed under the laws of any other State or country, as a stock company, must transact any such insurance business in this State, unless such person, corporation, or associa- tion has a paid-up capital stock equal to at least two hundred thousand dollars in available cash assets, over and above all liabilities for losses re- ported, expenses, taxes, and reinsurance of all out- standing risks, as provided in section six hundred and two of the Political Code of this State. Nor must any person, corporation, or association, or- ganized or formed under the laws of any otherJ State or country as a mutual insurance company,! transact any such insurance business In this StateJ unless such person, corporation, or associatioi 121 INSURANCE CORPORATIONS. 5 420 possesses available cash assets equal to at least two hundred thousand dollars, over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided in said section six hundred and two of the Politi- cal Code of this State. [Amendment approved April 1, 1878; Amendments 1877-8, 80. In efeect April 1, 1878.] § 420. Every company, corporation, or associa- tion, hereafter formed or organized under the laws of this State for the transaction of business in any kind of insurance not enumerated in sec- tion four hundred and nineteen of the Civil Code must have a subscribed capital stock equal to at least one hundred thousand dollars, which must be paid in at the times and in the manner pre- scribed for the payment of the capital stock of a corporation organized under section four hundred and nineteen of said Civil Code. No company, corporation, or association, formed or organized under the laws of any other State or country as a stock company, must transact any such insurance business in tliis State without a paid-up capital stock of not less than one hundred thousand dol- lars in available cash assets, over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as provided in section six hundred and two of the Political Code of this State. Nor must any company, cor- poration, or association, formed or organized un- der the laws of any other State or country as a mutual insurance company, transact any such in- surance business in this State unless such com- pany, corporation, or association possesses avail- able cash assets equal to at least one Tiundred thousand dollars over and above all liabilities for losses reported, expenses, taxes, and reinsurance of all outstanding risks, as pi-ovided in said sec- tion six hundred and two of the Political Code of Civ. Code-ll §§ 424, 425 INSURANCE CORPORATIONS. 122 this State. [New section approved April 1, 1878; Amendments 1877-8, 80. In effect April 1, 1878.] CHAPTER II. FIRE AND MARINE INSURANCE CORPORATIONS. § 424. Payment of subscriptions. Capital to be all paid in twelve months. § 425. Certificate of capital stock paid up to be filed, and when. § 426. Property which may be insured. § 427. Funds may be invested, how. § 428. Rate of risk. § 429. Amounts to be reserved before making dividends. § 430. Reservation by companies with less than $200,000 -> capital. § 431. Amounts to be reserved by life insurance companies. § 432. Corporations for insuring titles to real estate. § 424. The entire capital stocli of every fire or marine insurance corporation must be paid up in cash within twelve months from the filing of the articles of incorporation, and no policy of insur- ance must be issued or risli talien until twenty- five per cent of the whole capital stocli is paid up. Fire insurance: See post, sees. 2752 et seq. Marine insurance: See post, sees. 2655 et seq. County fire insurance companies, act providing for: See post, Appendix, p. 787. § 425. The president and a majority of the di- rectors must within thirty days after the pay- ment of the twenty-five per cent of the capital stock, and also within thirty days after the pay- ment of the last installment or assessment of the capital stoclv limited and fixed, prepare, subscribe, and swear to a certificate setting forth the amount of the fixed capital and the amount thereof paid up at the times respectively in this section named, and file the same in the office of the county clerli of the county where the principal place of busi- ness of the corporation is located, and a duplicate thereof, similarly executed, with the insurance commissioner. 123 INSURANCE CORPORATIONS. §§ 426, 427 § 426. Every corporation formed for fire or ma- rine insurance, or both, may mal^e insurance on all insurable interests within the scope of its arti- cles of incorporation, and may cause itself to be reinsured. Insurable interest defined: See sec. 2546, post. § 427. Corporations organized subsequent to April first, eighteen hundred and seventy-eight, 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 incorpo- rated cities and towns of the States of California and Oregon, not in default for interest on such bonds. 4. In loans upon unincumbered real property, worth at least one hundred per cent more than the amount loaned; or upon merchandise or cereals in warehouse, but in no instance shall such loan be made in excess of seventy-five per cent of the security talien. 5. Corporations engaged in the business of in- suring titles to real estate may, after the invest- ment of one hundred thousand (100.000) dollars in the manner provided for in subdivisions one, two, three, and four of this section, invest an amount not exceeding fifty per cent of their subscribed capital stock in the preparation or purchase of the materials or plant necessary to enable them to en- gage in such business: and such materials or plant shall be deemed an asset, valued at the actual cost thereof, in all statements and proceed- j ings required by law for the ascertainment and § 428 INSURANCE CORPORATIONS. 124 determinatiouof thecoiidition of sueli corporations. 6. Corporations organized for and engaged in the business of fire and marine insurance may, after the inrestmeut of twoliundred thousand (200.- 000) dollars, and corporations formed or organized for the transaction of business in any kind of in- surance not enumerated in section four hundred and nineteen of the Civil Code may, after the investment of one hundred thousand dollars in the manner provided in subdivisions one. two, three, and four of this section, invest the bal- ance of their capital, and any accumulations, in interest-bearing first mortgage bonds of any corporations (except mining companies), not in default of interest, organized and carrying on business under the laws of any State of the United States: provided, that a two-thirds vote of all the directors of such corporations shall approve such investment. It shall be the duty of the officers of such corporation to report quarterly, on the first days of January, April, July, and Oc- tober of each year, to the Insurance Commissioner, a list of such investments so made by them; and the Insurance Commissioner may, if such invest- ments, or any of them, seem injudicious to him, require the sale of the same. But no investment in the securities named in subdivisions one, two, three, and six of this section, must be made in an amount exceeding the market value of such securities at the date of such investment. [Be- came a law without governor's approval, March 6, 1899. Stats. 1899, ch. 57. In effect imme- diately.] § 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 actu- ally paid in, and intact at the time of taking such risk, without reinsuring the excess above one tenth, [Amendment approved March 30, 1874; Amendments 1873-4, 210. In effect July 1. 1874.] 125 INSURANCE CORPORATIONS. §§ 429. 430 § 429. No corporation formed subsequent to .'Vpril first, eighteen hundred and seventy-eight, under the laws of this State, and transacting tire, marine, inland navigation insurance business, or insurance provided for by section four hundred and twenty (420) of this Code, except insurance of the title to real property, must make any dividends except from profits remaining on hand after re- taining unimpaired: 1. The entire subscribed capital stock. 2. All the premiums received or receivable on outstanding marine or inland risks, except marine time risks. 3. A fund equal to one half of the amount of all premiums on all other risks not terminated at the time of making such dividend. 4. A sum sufficient to pay all losses reported or in course of settlement, and all liabilities for ex- penses and taxes. [Amendment approved March 5, 1887; Stats. 1887, p. 23. In effect immediately.] Declaring dividends generally: See ante, sec. 309. See also ante, sec. 417, as to declaring divi- dends by insurance companies generally. § 430. No fire or marine insurance corporation, with a subscribed capital of less than two hundred thousand dollars, must declare any dividends, ex- cept from profits remaining on hand after reserv- ing: 1. A sum necessary to form, with the subscribed capital stock, the aggregate sum of two hundred thousand dollars; 2. All the premiums received or receivable on outstanding marine or inland risks, except marine time risks; 3. A fund equal to one half the amount of all premiums on fire risks and marine time risks not terminated at the time of making such dividend; 4. A sum sufficient to pay all losses reported or §§ 431, 432 INSURANCE CORPORATIONS. 123 in course of settlement, and all liabilities for ex- penses and taxes. Act conferring power to establish fire patrol: See post, Appendix, p. 766. § 431. No corporation formed under the laws of this State, and transacting life insurance busi- ness, must make any dividends, except from prof- its remaining on hand after retaining unimpaired: 1. The entire capital stocli; 2. A sum sufiicient to pay all losses reported or in course of settlement, and all liabilities for ex- penses and taxes; 3. A sum sufficient to reinsure all outstanding policies as ascertained and determined upon the basis of the American experience table of mor- tality, and interest at the rate of four and one half per cent per annum. [New section approved April 1. 1S7S; Amendments 1877-S, 81. In effect April 1, 1878.] Life and health insurance: See post, sees. 2762 et seq. § 432. Corporations transacting business in in- suring titles to real estate shall annually set apart a sum equal to twenty-five per cent of their pre- miums collected during the year, which sum shall be allowed to accumulate until a fund shall have been created amounting to ten per cent of the sub- scribed capital stock. Such fund shall be main- tained as a further security to policy holders, and shall be known as the surplus fund; and if at any time such fund shall be impaired by reason of a loss, the amount by which it may be impaired shall be restored in the manner hereinabove pro- vided for its accumulation. The reporting of a loss shall be deemed an impairment of such fund for the purposes of this section. Such corporation must not make any dividends except from profits re- maining on hand after retaining unimpaired: 1. The entire subscribed capital stock; 127 INSURANCE CORPORATIONS. § 437 2, The amount owiug to the surplus fund, un- der the provisions of this section; 3. A sum sufficient to pay all losses reported, or in course of settlement, which shall be in excess of the surplus fund, and all liabilities for ex- penses and taxes. [New section approved March 5, 1887; Stats. 1887, p. 23. In effect immediately-] CHAPTER III. MUTUAL LIFE, HEALTH, AND ACCIDENT INSURANCE CORPORATIONS. § 437. Capital stock. Guarantee fund. § 438. Of what guarantee fund shall consist. § 439. What constitutes, and deiiciency in fixed capital. § 440. Declaration of fixed capital to be filed. § 441. Guarantee notes and interest, how disposed of. § 442. Insured to be entitled to vote, when. § 443. May invest in w^hat securities. § 444. Number of directors may be altered, how. § 445. Limitations to the holding of stock and in other par- ticulars may be provided for in by-laws. § 446. Premiums, how payable. § 447. Valuation of policies outstanding, when; how esti- mated. § 448. No stamp required on accident insurance contract. § 449. Valuation of policies, retaliatory provisions. § 450. Policy to contain what evidence. § 451. Fraternal societies exempt from insurance laws. § 452. Policies continued in force. § 437. Every corporation formed for the pur- pose of mutual insurance on the lives or health of persons, or against accidents to persons for life or any fixed period of time, or to purchase and sell annuities, must have a capital stocli of not less than one hundred thousand dollars. It must not malve any insurance upon any risli or transact any other business as a corporation until its capital stocli is fully paid up in cash, nor until it has also obtained a fund, to be known as a "guarantee fund," of not less than two hundred and fifty thousand dollars, as is hereinafter provided. If 5 438 INSURANCE CORPORATIONS. 128 more than the requisite amount is subscribed, the stock must be distributed pro rata among the sub- scribers. Any subscription may be rejected by the board of directors or the committee thereof, either as to the whole or any part thereof, and must be, so far as rejected, without effect. Act relating to life, health, accident and annuity or endowment insurance: See post, Appendix, 784. Incorporation of mutual insurance companies: See post, Appendix, 785. § 438. The guarantee fund mentioned in the preceding section must consist of the promissory notes of solvent parties, approved by the board of directors and by each other, payable to the corpo- ration or its order, and at such times, in such modes, and in such sums, with or without interest, and conformable in all other respects to such re- quirements as the board of directors prescribe; but the amount of the notes given by any one per- son must not exceed in the whole the sum of five thousand dollars, exclusive of interest. Such notes must be payable absolutely and at the option of the corporation; they must be negotiable, and may be indorsed and transferred, or converted into cash, or otherwise dealt with by the corporation, at its discretion, without reference to any contin- gency of losses or expenses. Such notes, or the proceeds thereof, must remain with the corpora- tion as a fund for the better security of persons dealing with it, and constitute the assets of the corporation, liable for all its debts, obligations, and indebtedness next after its assets from pre- miums and other sources, exclusive of capital stock, until the net earnings, over and above its expenses, losses, and liabilities, shall have accu- mulated in cash, or securities in which the net earnings have been invested, to a sum which, with 129 INSURANCE CORPORATIONS. §§ 439, 440 the capital stock, is equal to the aggregate of the original amounts of the guarantee fund and of the capital stock. § 439. The sum accumulated as provided in the preceding section, together with the capital stock, shall become and remain the fixed capital of the corporation, not subject to division among the stockholders or parties dealing with it, or to be expended in any manner otherwise than may be required in payment of the corporation's debts and actual expenses, until the business of the corpora- tion is closed, its debts paid, and its outstanding policies and obligations of every kind canceled or provided for; and if from any cause a deficiency at any time occurs in such fixed capital, no further division of profits must take place until such de- ficiency has been made up. § 440. Whenever the fixed capital of the cor- poration is obtained as hereinbefore provided, the president of the corporation and its actuary, or its secretary, if there is no actuary, must make a declaration in writing, sworn to before some no- tary public, of the amount of such fixed capital, and of the particular kinds of property compos- ing the same, with the nature and amount of each kind, which must be filed with the original arti- cles of incorporation, and a copy, certified by the county clerk, must be published for at least four successive weeks, in a newspaper published in the county where the principal business of the corpo- ration is situated. Upon the filing of such declar- ation the guarantee fund is discharged of its obli- gations, and all notes of the fund remaining in the control of the corporation, and not affected by any lien thereon, or claim of that nature, must be surrendered by it to tlie makers thereof, re- spectively, or other parties entitled to receive the same. gg 441-145 INSURANCE CORPORATIONS. 130 § 441. Until the guarantee fund is discharged from its obligations, as provided in the preceding section, no note must be withdrawn from the fund, unless another note of equal solvency is substi- tuted therefor, with the approval of the board of directors. The corporation must allow a commis- sion, not exceeding five per cent, per annum, on all such guarantee notes while outstanding, and also interest on all moneys paid on such notes by the parties liable thereon, at the rate of twelve per cent per annum, payable half yearly until repaid by the corporation, unless the current rate of inter- est is different from this amount, in which case the rate payable may, from time to time, at inter- vals of not less than one year, be increased or re- duced by the board of directors, so as to conform to the current rate. [Amendment approved March 30, 1874; Amendments 1873-4, 210. In effect July 1. 1874.] § 442. After the filing of the declaration of the fixed capital, as in this article provided, the hold- ers of policies of life insurance for the term of life, on which the premiums are not in default, may vote at the election of directors, and have one vote for each one thousand dollars insured by their policies, respectively. § 443. 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. Life, health, and accident insurance cor- porations may invest their capital stock as fol- lows: 1. In loans upon unincumbered and improved real property within the State of California, which 131 INSURANCE CORPORATIONS. §§ U'j-Hij shall be worth at the time of the investment at least forty per cent more than the sum loaned; 2. In the purchase of or loans upon interest- bearing bonds, and other securities of the United States and of the State of California; 3. In the purchase of or loans upon interest- bearing bonds of any of the other states of the union, or of any county, or incorporated city, or city and county in the state of California; 4. In the purchase of loans upon any stoclis 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 Francisco, of not less than sixty per cent of their par value, and shall be rated as first-class securities; but no loans shall be made on any securities specified in subdivisions three and four of this section, in. any amount beyond sixty per cent of the marl^et value of the securi- ties, nor shall any loan be made on the stock of the corporation, or notes or other obligations of its corporators. [Amendment approved March 30, 1874; Amendments 1873-4, 211. In effect July 1, 1874.] § 445. The corporation may, by its by-laws, limit the number of shares which may be held by any one person, and malie such other provisions for the protection of the stoclvholders and the bet- ter security of those dealing with it as to a ma- jority of the stoclvholders may seem proper, not inconsistent with the provisions of this title or part. § 446. All premiums must be payable wholly in cash, or one half or a greater proportion in cash, and the remainder in promissory notes bear- ing interest, as may be provided for by the by- laws. Agreements and policies of insurance made ^447 INStRANCE CORPORATIONS. 132 by the corporation may be upon the basis of full or partial participation in the profits, or without any participation therein, as may be provided by the by-laws and agreed between the parties. § 447. Every life insurance corporation organ- ized under the laws of this state must, on or be- fore the first day of February of each year, fur- nish the insurance commissioner the necessary data for determining the valuation of all its poli- cies outstanding on the thirty-first day of Decem- ber then next preceding. And every life insur- ance company organized under the laws of any other State or country, and doing business in this State, must, upon the written requisition of the commissioner, furnish him, at such time as he may designate, the requisite data for determining the valuation of all of its policies then outstand- ing. Such valuations must be based upon the rate of mortality established by the American experi- ence life-table and interest at four and one-half per cent per annum; provided, that from and after the thirty-first day of December, A. D. one thous- and eight hundred and ninety-one, such valua- tions must be based upon the rate of mortality established by the combined experience or actu- aries' table of mortality, with interest at the rate of four per cent per annum. When the laws of any other State or territory require of a life in- surance company organized under the laws of this State a valuation of its outstanding policies by any standard of valuation different from that named in this section, the insurance commissioner is hereby authorized to make such valuation for usej in such other State or territory, and to issue his certificate in accordance therewith. For the pur- pose of making the valuations, the insurance com- missioner is authorized to employ a competent actuary, whose compensation for such valuations' 1»3 INSURANCE CORPORATIONS. §§ 448-'«60 shall be tiiree cents for each thousand dollars of insurance; to be paid by the respective companies whose policies are thus valued, [Amendment ap- proved February 25, 1889; Stats. 1889, p. 35.] § 448. No stamp is required nor stamp duty ex- acted on any contract of insurance, when such contract insures against accident which may re- sult in injury or death. See Act of March 28, 1874, Relative to Mutual Beneficial and Relief Associations, Appendix, p. 723. § 449. When the certificate of the insurance commissioner of this state, of the valuation of the policies of a life insurance company, as provided in section four hundred and forty-seven of the Civil Code of this state, issued to any company or- ganized under the laws of this state, shall not be accepted by the insurance authorities of any other state, in lieu of a valuation of the same, by the insurance officer of such other state, then every company organized under the laws of such other state doing- business in this state, shall be required to have a separate valuation of its policies made under the authority of the insurance commissioner of tliis state, as provided in section four hundred and forty-seven of the Civil Code. [New section approved March 30, 1874; Amendments 1873-4, p. 271. In effect in sixty days from passage.] § 450. Every contract or policy* of insurance hereafter made by any person or corporation or- ganized under the laws of this state, or under those of any other state or country, with and upon the life of a resident of this state, and delivered within this state, shall contain, unless specifically contracted between the insurer and the insured for tontine insurance, or for other term or paid-up Civ. Code— 12 § 450 INSURANCE CORPORATIONS. 134 insurance, a stipulation that when, after three full annual premiums shall have been paid on such policy, it shall cease or become void solely by the nonpayment of any premium when due, its entire net reserve, by the American experience mortality, and interest at four and one-half per cent yearly, less any indebtedness to the company on such pol- icy, shall be applied by such company as a single premium, at such company's published rates in force at the date of original policy, but at the age of the insured at time of lapse, either to the pur- chase of nouparticipating term insurance for the full amount insured by such policy, or upon the written application by the owner of such policy, and the surrender thereof to such company within three months from such nonpayment of premium, to the purchase of a nouparticipating paid-up pol- icy, payable at the time the original policy would be payable if continued in force; both liinds of in- surance to be subject to the same conditions, ex- cept as to payment of premiums, as those of the original policy. It may be provided, however, in such stipulation, that no part of such term insur- ance shall be due or payable, unless satisfactory proofs of death be furnished to the insuring com- pany within one year after death, and that if death shall occur within three years after such nonpayment of premium, and during such term of insurance, there shall be deducted from the amount payable the sum of all the premiums that would have become due on the original policy if it had continued in force. If the reserve on endow- ment policies be more than enough to purchase temporary insurance, as aforesaid, to the end of the endowment term, the excess shall be applied to the purchase of pure endowment insurance, pay- able at the end of the term, if the insured be then living. If any life insurance corporation or com- pany shall deliver to any person in this state a 135 INSURANCE CORPORATIONS. §§ 451, 452 policy of insurance upon the life of any person re- siding in this state, not in conformity with the provisions of this section, the right of such cor- poration or company to transact business in this state shall thereupon and thereby cease and ter- minate, and the insurance commissioner shall im- mediately revoke the certificate of such corpora- tion or company authorizing it to do business in this state, and publish such revocation, daily, for the period of two weeks, in two daily newspapers, one published in the city of San Francisco and the other in the city of Sacramento. [Amendment ap- proved April 26, 18S0; Amendments (to Polit. Code) 1880, 91. In effect in sixty days; repealed con- flicting acts.] § 451. All associations or secret orders, and other benevolent or fraternal co-operative socie- ties, incorporated or organized for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to its members, or to the family of deceased mem- bers, and not for profit, are declared not to be in- surance companies in the sense and meaning of the insurance laws of this state, and are exempt from the provisions of all existing insurance laws of this state. [New section approved March 23, 1885; Stats. 1885, 221.] § 452. [Repealed April 26, 1880; Amendments 1880, 92. In effect in sixty days.] §§ 454-456 RAILROAD CORPORATIONS. 136 TITLE III. RAILROAD CORPORATIONS. Chapter I. Officers and Corporate Stock, §§ 454- 459. 11. Enumeration of Powers, §§ 465-478. III. Business, bow Conducted, §§ 479-491. CHAPTER I. OFFICERS AND CORPORATE STOCK. § 454. Directors to be elected, when. § 455. Additional provisions in assessment and transfer of stock. § 456. Corporations may borrow money and issue bonds. Limitation of amount. § 457. To provide a sinking fund to pay bonds. § 458. Capital stock to be fixed. § 459. Certificate of payment of fixed capital stock. § 454. Directors of railroad corporations may- be elected at a meeting of the stoclvholders other than the annual meeting as a majority of the fixed capital stocli may determine, or as the by-laws may provide; notice thereof to be given as pro- vided for notices of meetings to adopt by-laws in Article II., Chapter I., Title I., of this part. § 455. No stock in any railroad corporation is transferable until all the previous calls or install- ments thereon have been fully paid in; nor is any such transfer valid, except as between the par- ties thereto, unless at least twenty per cent has been paid thereon and certificates issued therefor, and the transfer approved by the board of direc- tors. § 456. Railroad corporations may borrow, on the credit of the corporation, and under such regu- 137 KAILROAD CORPORATIONS. § 457 lations and restrictions as the board of directors thereof, by unanimous concurrence, may imiK>se, such sums of money as may be necessary for con- stiiicting and completing their railroad, with its equipments, and for the purchase of all necessary rolling stock and all else relative thereto, and may issue promissory notes therefor, or may issue and dispose of bonds to raise moneys necessary to pay thetrefor, at a rate of interest not exceeding ten per cent per annum; and may also issue bonds, or promissory notes, at the same rate of interest in payment of any debts or contracts for construct- ing and completing their road, with its equip- ments and rolling stock, and all else relative there- to, and for the purchase of railroads and other property within the purpose of the corporation. The amount of bonds, or promissory notes, issued for such purposes must not exceed in all the amount of their caf^ital stock; and to secure the payment of such bonds, or notes, they may mort- gage their corporate property and franchises, or may secure the payments of such bonds, or notes, by deed of trust of their corporate property and franchises. Any person or corporation formed un- der the laws of this state, or of any othei- state within the United States, that the directo^rs of the railroad corporation may. by unanimous concur- rence, select, may be trustees in such deed of trust, fl^ff'nme a law. under constitutional pro- vision, without the Governor's approval. March 4. 1S09. Stats. ISOO. ch. ."SO. In effect sixty days after passage.! Debt exceeding available means: See Penal Code. § 566. § 457, The directors must provide a sinking fund, to be specially applied to the redemption of such bonds on or before their maturity, and may also confer on anv holder of any bond or note so §5 458. 459 RAILROAD CORPORATIONS. 138 issued, for money borrowed or in payment of any debt or contract for the construction and equipment of sucli road, the riglit to convert the principal due or owing thereon into stock of such corporation, at any time within eight years from the date of such bonds, under such regulations as the directors may adoi^t. § 458. When, at any time after filing the arti- cles of incorporation, it is ascertained that the capital stoclc therein set out is either more or less than actually required for constructing, equipping, operating, and maintaining the road, by a two- third vote of the stocliholders the capital stock must be fixed, and a certificate thereof, and of the proceedings had to fix the same, must be made out and filed in the office of the Secretary of State. § 459. Within thirty days after the payment of the last installment of the fixed capital stock of any railroad corporation organized under this title and part, the president and secretary, and a ma- jority of the directors thereof, must make, sub- scribe, and file in the office of the Secretary of State a certificate stating the amount of the fixed capital stock, and that the whole thereof has been paid in. The certificate must be verified by the affidavit of the president and secretary. 139 RAILROAD CORPORATIONS. § 465 ciiaptl:k II. ENUMERATION OF POWERS. S 465. Enumoration of powers: 1. To survey road; 2. May accept real estate; 3. May acquire real estate; 4. Lay out road, how wide; 5. \v nere may construct road; 6. May cross or connect roads; 7. May purchase land, timber, stone, gravel, &c.; 8. Carry persons and freight; 9. Erect necessary buildings; 10. Regulate time and freights, subject to legisla- tion; 11. Regulate force and speed. § 466. Map and profile to be filed. § 467. May change line of road. § 468. Forfeiture of franchise. § 469. Crossings and intersections. Condemnation. § 470. Not to use streets, alleys, or water in cities or towns, except by a two-third vote of the city or town authorities. § 471. Railroads through cities not to charge fare to and from points therein. § 472. When crossing railroads or highways, how other lauds are acquired. § 473. Corporations may consolidate. Publication of no- tice. Copy to be filed. § 474. State lands granted for use of corporations. § 475. Grant not to embrace town lots. § 476. Wood, stone, and earth may be taken from State lands. § 477. Lands to revert to State, when. § 478. Selections made, how proved and certified to. § 465. Every railroad corporation has power: 1. To cause such examination and surveys to be made as may be necessary to the selection of the most advantageous route for the railroad; and for such purposes their officers, agents, and employees may enter upon the lands or waters of any person, su])ject to liability for all damages which they do thereto; 2. To receive, hold, take, and convey, by deed § 465 RAILROAD CORPORATIONS. 140 or Otherwise, as a natural person, such voluntary- grants and donations of real estate and other prop- erty which may be made to it to aid and encour- age the construction, maintenance, and accommo- dation of such railroad; 3. To purchase, or by voluntary grants or dona- tions to receive, enter, take possession of, hold, and use all such real estate and other property as may be absolutely necessary for the construction and maintenance of such railroad, and for all sta- tions, depots, and other purposes necessary to suc- cessfully worli; and conduct the business of the road; 4. To lay out its road, not exceeding nine rods wide, and to construct and maintain the same, with a single or double track, and with such ap- pendages and adjuncts as may be necessary for the convenient use of the same; 5. To construct their road across, along, or upon any stream of water, watercourse, roadstead, bay, navigable stream, street, avenue, or highway, or across any railway, canal, ditch, or flume which the route of its road intersects, crosses or runs along, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road, street, avenue, highway, railroad, canal, ditch, or flume thus in-- tersected to its former state of usefulness, as near as may be, or so that the railroad shall not un- necessarily impair its usefulness or injure its fran- chise; 6. To cross, intersect, join, or unite its railroad with any other railroad, either before or after con- struction, at any point upon its route, and upon the grounds of such other railroad corporation, with the necessary turnouts, sidings, and switches, and other conveniences in furtherance of the ob- jects of its connections; and every corporation whose railroad is, or shall be hereafter, intersected 141 RAILROAD CORPORATIONS. § 465 bj' any new railroad, shall unite with the owners of such new railroad in forming such intersections and connections, and grant facilities therefor; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points or the manner of such crossings, inter- sections, and connections, the same shall be ascer tained and determined as is provided in Title VII.. Part III., Code of Civil Procedure [Sees. 1237- 1263]; 7. To purchase lands, timber, stone, gravel, or other materials, to be used in the construction and maintenance of its road, and all necessary append- ages and adjuncts, or acquire them in the manner provided in Title YII., Part III., Code of Civil Pro- cedure, for the condemnation of lands; and tc change the line of its road, in whole or in part whenever a majority of the directors so determine. as is provided hereinafter; but no such change must vary the general route of such road, as con- templated in its articles of incorporation: 8. To carry persons and property on their rail- road, and receive tolls or compensation therefor; 9. To erect and maintain all necessary and con- venient buildings, stations, depots, fixtures, and machinery for the accommodation and use of their passengers, freight, and business; 10. To regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor within the limits prescribed by law and subject to alteration, change, or amendment by the legis- lature at any time; 11. To regulate the force and speed of their locomotives, cars, trains, or other machinery used and employed on their road, and to establish, exe- cute, and enforce all needful and proper rules and regulations for the management of its business transactions usual and proper for railroad corpo- rations. §§ 466, 467 RAILROAD CORPORATIONS. 142 Exceeding limit upon power to acquire realty: See ante, sec. 360. Eminent domain: See the subject discussed in Code CiY. Proc, sees. 1237-1263. Subd. 8. Rates of charges: See post, sec. 489. Establisliment of rates by railroad commissioners: See Const. Cal., art. 12, sec. 22. Subd. 10. Regulating time and manner of trans- portation, time tables of starting: See sec. 481. § 466. Every railroad corporation in this State must, within a reasonable time after its road is finally located, cause to be made a map and profile thereof, and of the land acquired for the use there- of, and the boundaries of the several counties through which the road may run, and file the same in the office of the Secretary of State; and also like maps of the parts thereof located in different counties, and file the same in the office of the clerk of the county in which such parts of the road are, there to remain of record forever. The maps and profiles must be certified by the chief engineer, the acting president and secretary of such company, and copies of the same, so certified and filed, be kept in the office of the secretary of the corporation, subject to examination by all par- ties interested. § 467. If. at any time after the location of the line of the railroad and the filing of the maps and profiles thereof, as provided in the preceding sec- tion, it appears that the location can be improved, the directors may, as provided in subdivision 7, section 465, alter or change the same, and cause new maps and profiles to be filed, showing such changes, in the same offices where the originals are of file, and may proceed in the same manner as the original location was acquired, to acquire and take possession of such new line, and must sell or relinquish the lands owned by them for the 143 RAILROAD CORPORATIONS. §§ 468, 469 origiual location, within five years after such change. No new location as herein provided must be so run as to avoid any points named in their articles of incorporation. Stats. 1861, p. 621, sec. 34. Changing location: See sec. 465, subd. 7. § 468. Every railroad corporation must within two years after filing its original articles of incor- poration, begin the construction of its road, and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to ex- tend its road beyond the point then completed is forfeited. Stats. 1861, 626, sec. 54; 1870, 578. Organizing and commencing work: See general provision, sec. 358, ante. Act enabling railroad companies to complete railroads: See post, Appendix, p. 819. § 469. Whenever the track of one railroad in- tersects or crosses the track of another railroad, whether the same be a street railroad, wholly within the limits of a city or town, or other rail- road, the rails of either or each road must be so cut and adjusted as to permit the passage of the cars on each road with as little obstruction as pos- sible; and, in case the persons or corporations own- ing the railroads cannot agree as to the compensa- tion to be made for cutting and adjusting the rails, the condemnation of the right of way over the one for the use of the other road, may be had in pro- ceedings under Title YII., Part III., Code of Civil Procedure, and the damages assessed and the right of way granted as in other cases. Stats. 1862, 498. §§ 470-473 RAILROAD CORPORATIONS. 144 Right of eminent domain: Code Civ. Proc, sees. 1237-12(33. Crossings and intersections: See ante, 465, subd. sec. G. § 470. No railroad corporation must use any street, alley, or highway, or any of the land or water, within any incorporated city or town, un- less the right to so use the same is granted by a two-third vote of the town or city authority from which the right must emanate. § 471. [Kepealed April 1, 1878; Amendments 1877-S, 84. in effect immediately.] § 472. Whenever the track of such railroad crosses a railroad or highway, such railroad or highway may be carried under, over, or on a level with the track, as may be most expedient; and in cases where an embankment or cutting necessi- tates a change in the line of such railroad or high- way, the corporation may take such additional lands and material as are necessary for the con- struction of such road or highway on- such new line. If such other necessary lands cannot be had otherwise, they may be condemned as provided in Title VII., Part III., Code of Civil Procedure; and when compensation is made therefor, the same be- comes the property of the corporation. [Sees. 1237- 1263.] Stats. 1869. 616, sec. 19. § 473. Two or more railroad corporations may consolidate their capital stock, debts, property, as- sets, and franchises in such manner as may be^ agreed upon by their respective boards of direc- tors. No such amalgamation or consolidation must take place without the written consent of th( holders of three-fourths in value of all the stoci of each corporation: and no such amalgamation oi lis RAILROAD CORPORATIONS. §§ 474-476 consolidation must in anj- way relieve such corpo- ration or the stockholders thereof from anj" and all just liabilities. In case of such amalgama- tion or consolidation, due notice of the same must be given, by advertisement for one month in at least one newspaper in each county, if there be one published therein, into or through which such roads run, and also for the same length of time in one paper published in Sacramento and in two papers published in San Francisco; and when the consolidation and amalgamation is completed, a copy of the new articles of incorporation must be filed in the office of the Secretary of State. Stats. 1861, 622, sec. 40. § 474. There is granted to every railroad cor- poration the right of way for the location, con- struction, and maintenance of their necessary works, and for every necessary adjunct thereto, over any swamp, overflowed, or other public lands of the State not otherwise disposed of or in use, not in any case exceeding in length or width that which is necessary for the construction of such works and adjuncts, or for the protection thereof, not in any case to exceed two hundred feet in width. § 475. The grants mentioned in the preceding section do not apply to public lands of the State within the corporate limits of towns and cities, or witliiu three miles thereof. § 476. The right to take from any of the lands belonging to the State, adjacent to the works of the corporation, all materials, such as wood, stone, and earth, naturally appurtenant thereto, which may be necessary and convenient for the original construction of its works and adjuncts, is granted to such corporations. Civ. Code.— 13. §§ 477, 47S RAILROAD CORPORATIONS. 146 § 477. If any corporation receiving State lands or appurtenances thereunder is dissolved, ceases to exist, is discontinued, or the route or line of its Tvorks is so changed as not to cover or cross the lands selected, or the use of the lands selected is abandoned, such selected lands revert, and the title thereto is reinvested in the State or its gran- tees, free from all such uses. § 478. When any selection of the right of way. or land for an adjunct to the works of a railroad corporation, is made by any corporation, the sec- retary thereof must transmit to the Surveyor Gen- eral, Comptroller of State, and recorder of the county in which the selected lands are situate, a plat of the lands so selected giving the extent thereof and uses for which the same is claimed or desired, .duly verified to be correct; and, if ap- proved, the surveyor general must so indorse the plat, and issue to the corporation a permit to use the same, unless on petition properly presented to the court, a review is had and such use prohibited. The five preceding sections are drawn from Stats. 1861, 617, 618, sees. 20-22. 117 RAILROAD CORPORATIONS. §§ 479, 48C ciiArTER in. BUSINESS, HOW CONDUCTED. § 479. Checks to be affixed to all baggage. Damages. § 480. Annual report to be verified. Form of report. § 481. Duties of corporation. § 482. Corporation to pay damages for refusal. § 483. Furnish room inside passenger cars, and be respon- sible for damages occurring on freight and other cars. § 484. Corporations to post printed regulations, and not responsible for damages in violation of rules. § 485. To pay damages. Not liable in certain cases. Cor- poration may recover damages, when. § 486. Regulations of trains. Penalty. § 487. Passenger refusing to pay fare. § 488. Officers to wear badge. § 489. Rates of charges. § 490. Passenger tickets, how issued, and to be good for six months. § 491. Character of iron to bo used. § 492. Elevated or underground railways. § 493. To apply to all railroad companies. j! 494. Sale of i)roi)crty tu another railroad. § 479. A check must be affixed to every pack- age or parcel of baggage when taken for trans- portation by any agent or employee of such rail- road corporation, and a duplicate thereof given to the passenger or person delivering the same In his behalf; and if such check is refused on de- mand, the railroad corporation must pay to such passenger the sum of twenty dollars, to be recov- ered in an action for damages; and no fare or toll must be collected or received from such passen- ger, and if such passenger has paid his fare, the same must be returned by the conductor in charge of the train; and on producing the check, if his baggage is not delivered to him by the agent or employee of the railroad corporation, he may re- cover the value thereof from the corporation. § 480. Every railroad corporation must make an annual report to the Secretary of State, or other officer designated by law, of its operations for each year, ending on the thirty-first day of De- g481 RAILROAD CORPORATIONS. 148 cember, verified by the oaths of the president or acting- superintendent of operations, the secretary and treasurer of such corporation, and file it in the office of the Secretary of State, or such other designated oflicer, by the twentieth day of Feb- ruary, which must state: 1. The capital stock, and the amount thereof actually paid in; 2. The amount expended for the purchase of lands for the construction of the road, for build- ings, and for engines and cars, respectively; 3. The amount and nature of its indebtedness, and the amount due the corporation; 4. The amount received from the transportation of passengers, property, mails, and express mat- ter, and from other sources; 5. The amount of freight, specifying the quan- tity in tons; 6. The amount paid for repairs of engines, cars, buildings, and other expenses, in gross, showing the current expenses of running such road; 7. The number and amount of dividends, and when paid; 8. The number of engine-houses and shops, of engines and cars, and their character. § 481. Every such corporation must start and run their cars, for the transportationof persons and property, at such regular times as they shall fix by public notice, and must furnish suflicient ac- commodations for the transportation of all such passengers and property as, within a reasonable time previous thereto, offer or is offered for trans- portation, at the place of starting, at the junction of other railroads, and at siding and stopping places established for receiving and discharging way passengers and freight; and must take, trans- port, and discharge such passengers and property at, from, and to such places, on the due payment of tolls, freight, or fare therefor. i49 RAILROAD CORPORATIONS. §§ 482-484 Rules and reffiilations: See sec. 484, post. Act compelling; railroads to operate roads: See post, Appendix, p. 821. Act exempting? railroad constructed at elevation of five thousand feet from operating roads at cer- tain times: See post, p. 821. Act organizinj? railroad commissioners and de- fining powers: See post, Appendix, p. 823. § 482. In case of refusal by such corporation or their agents so to take and transport any passengers or property or to deliver the same, at the regular appointed places, such corporation must pay to the party aggrieved all damages which are sustained thereby, with costs of suit. § 483. Every railroad corporation must fur- nish, on the inside of its passenger cars, sufficient room and accommodations for all passengers to whom tickets are sold for any one trip, and for all persons presenting tickets entitling them to travel thereon; and when fare is taken for trans- porting passengers on any baggage, wood, gravel, or freight car, the same care must be taken and the same responsibility is assumed by the corpo- ration as for passengers on passenger cars. Accommodations to be furnished: See sec. 481, ante. § 484. Every railroad corporation must have printed and conspicuously posted on the inside of its passenger cars its rules and regulations re- garding fare and conduct of its passengers; and in case any passenger is injured on or from the plat- form of a car, or on any baggage, w^ood, gravel, or freight car, in violation of such printed regu- lations, or in violation of positive verbal iustruc- ^ tions or injunctions given to such passenger in I person by any otficer of the train, the corporation § 485 RAILROAD CORPORATIONS. 150 is not responsible for damages for such injuries, unless the corporation failed to comply with the provisions of the preceding section. The five preceding sections were drawn from Stats. 1861, 621, 625, sees, 44-46, 48. Kules and regulations by carriers of passengers, generally: See post, sec. 2186. § 485. Ilailroad corporations must mal^e and maintain a good and sufficient fence on either or both sides of their track and property. In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic animals a fair mar- ket price for the same, unless it occurred through the neglect or fault of the owner of the animal so killed or maimed. Ilailroad corporations paying to the owner of the laud through or along which their road is located an agreed price for making and maintaining such fence, or paying the cost of such fence, with the award of damages allowed for the right of way for such railroad, are relieved and exonerated from all claims for damages aris- ing out of the killing or maiming any animals of persons who thus fail to construct and maintain such fence; and the owners of such animals are responsible for any damages or loss which may ac- crue to such corporation from such animals being upon their railroad track, resulting from the non- construction of such fence, unless it is shown that such loss or damage occurred through the negli- gence or fault of the corporation, its officers, agents, or employees. Stats. 1761, 623, sec. 40. 151 RAILROAD CORPORATIONS. §§ 486-48S § 486. A bell, of at least tweuty pounds, weijjcht, must be placed on each locomotive en- gine, and be ruuj; at a distance of at least eighty rods from the place whore the railroad crosses any street, road, or hij;hway, and be l^ept ringinjL? until it has crossed such street, road, or hijjchway; or a steam-whistle must be attached, and be sounded, except in cities, at the lil^e distance, and be l^ept sounding at intervals until it has crossed the same, under a penalty of one hundred dollars for every neglect, to be paid by the corporation oper- ating the railroad, which may be recovered in an action prosecuted by the district attorney of the proper county, for the use of the State. The cor- poration is also liable for all damages sustained by any person, and caused by its locomotives, train, or cars, when the provisions of this section are not complied with. Omitting to ring the bell, a misdemeanor: Pen. Code, sec. 390. § 487. If any passenger refuses to pay his fare, or to exhibit or surrender his ticket, when reason- ably requested so to do, the conductor and em- ployees of the corporation may put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling-house, on stopping the train. Refusing to pay fare: See, generally, sees. 21S7 et seq., post. § 488. Every conductor, baggage-master, en- gineer, brakeman, or other employee of any rail- road corporation, employed on a passenger train or at stations for passengers, must wear upon his hat or cap, or in some conspicuous place on the breast of his coat, a badge, indicating his ottice or station, and the initial letters of the name of the corporation by which he is employed. No col- § 489 RAILROAD CORPORATIONS. 152 lector or conductor, without such badge, is au- thorized to demand or to receive from any passen- ger any fare, toll, or ticliet, or exercise any of the powers of his office or station; and no other offi- cer or employee, without such badge, has any au- thority to meddle or interfere with any passenger or property. § 489. All railroad corporations must fix and publish their rates of charges for freightage and fares from one depot to another, on their various lines of road in this State, graduated as follows: 1. One rate of charges per mile for a distance of one hundred miles or over; 2. One rate for a distance of seventy-five and less than one hundred miles, charging not exceed- ing ten per cent per mile more than the first rate; 3. One rate for a distance of fifty and less than seventy-five miles, charging not exceeding fifteen per cent per mile more than the first rate; 4. One rate for a distance of twenty-five and less than fifty miles, charging not exceeding twen- ty per cent per mile more than the first rate; 5. One rate for a distance not exceeding twenty- five miles, charging not exceeding twenty-five per cent per mile more than the first rate. But in no case, nor in any class of charges here- inbefore named, shall any railroad corporation charge or receive more than ten cents per mile for each passenger, nor fifteen cents per mile for each ton of freight transported on its road. For every transgression of these limitations the corpo- ration is liable, to the party suffering thereby, treble the entire amount of fare or freightage so charged to such party. In no case is the corpora- tion required to receive less than twenty-five cents for any one lot of freight for any distance. Asking or receiving illegal fare a misdemeanor: Po»al Code, sec. 525. 153 RAILROAD CORPORATIONS. §§ 490. 491 "The three precedinj; sectious are founded on Stats. 180], 025, sees. 49-51. The provision fixing grades of charges is in accordance with the stat- utes of the states of Maine, Missouri, Kansas, and others, and frequent suggestions in this State. In Kansas and Missouri, six cents per mile is the maximum charge for passenger fare, and freight- age is graded something lil^e the provisions of this section": Commissioners' note. Rates of charges on street railroads: Sec. 501, post. Power of railroad corporations to charge tolls or compensation: Sec. 405, subd. 8. § 490. Every railroad corporation must pro- vide, and, on being tendered the fare therefor fix- ed as provided in the preceding section, furnish to every person desiring a passage on their passen- ger cars a ticket which entitles the purchaser to a ride, and to the accommodations provided on their cars, from the depot or station where the same is purchased to any other depot or station on the line of their road. Every such ticlcet entitles the hold- er thereof to ride on their passenger cars to the station or depot of destination, or any interme- diate station, and from any intermediate station to the depot of destination designated in the ticket, at any time within six months thereafter. Any corporation failing so to provide and furnish tickets, or refusing the passage which the same calls for when sold, must pay to the person so re- fused the sum of two hundred dollars. § 491. All railroads, other than street railroads and those used exclusively for carrying freight or for mining purposes, built by corporations organ- ized under this chapter, must be constructed of the best quality of iron or steel rails, known as T or II rail, or other pattern of equal utility. [Amendment approved March 30, 1874; Amend- ments 1873-4, 212. In effect July 1, 1874.] ^}, 49-M94 RAILROAD CORPORATIONS. 154 § 492. The legislative or other body to -^hom is intrusted the ?:overnment of the county, city and county, city, or town, under such regulations, restrictions, and limitations, and upon such terms and payment of license tax as the county, city and county, city, or town authority may provide, may grant franchises for the construction of elevated or underground railroad traclis over, across, or un- der the streets and public highways of any such county, city and county, city, or town, for the term not exceeding fifty years; provided, that be- fore granting such franchise there shall be pre- sented to such legislative or other body a petition signed by the owners of a majority of the landed property, other than public property, on the line of said elevated portion applied for. [New sec- tion approved March 27, 1SU5; Stats. 1895. p. 211. In effect immediately.] § 493. This act shall apply to all railroad com- panies heretofore and hereafter incorporated, [New section approved March 27, 1S95; Stats. 1895. p. 241. In effect immediately.] § 494. Any railroad corporation owning any railroad in this state may sell, convey, and trans- fer its property and franchises, or any part there- of, to any other railroad coriioration, whether or- ganized under the laws of this state or or any other state or territory, or under any act of Con- gress; and any other such railroad coi-poration re- ceiving such conveyance may hold and operate such railroad franchises and property within this state, build and operate extensions and branches thereof, and thereitnto exercise the right of emi- nent domain, and do any other business in connec- tion therewith, as fully and effectually to all in- tents and purposes as If such corporation were organized under the laws of this state: provided, that such sale, conveyance and transfer shall be made within three years from the date this act 155 RAILROAD CORPORATIONS. H94 shall tak(^ »'fl"«'ct: and providod further, that befort such sale, conveyance or transfer shall become operative, an ajrreement in ^\TitiuJ; must be exe- cuted by the parties thereto, containinj^ the terms and conditions of the purchase and sale, and its execution must be authorized by the board of di- rectors and ratified by three-fourths of the stock- holders of each of the railroad companie'S tliat are parties to such conveyance and transfer, and said ajrreement or conveyance shall be recorded in each county throuj^h which said road or roads pass in this state; and provided further, that no sale, conveyance or transfer under this act shall relierv^e the franchise or property sold, conveyed or t.rans- ferr<^l from the liability of the jrrantor contracted or incurred in the operation, use or enjoyment of such franchise or any of Its privileges; provided, that this section shall not authorize any corpora- tion to purchase any railroad property operated in competition with it; and provided, however, corpo- rations operating any railroad or part of a railroad under lease sliall be entitled to purchase such leasetl propt^rty (whether competitive or other's^^se) under the provisions and subject to the condi- tions of tliis act; and pro\ided further, that any or all established rates for fares and tolls for carry- ing passengers or freight between any ]x>ints upon any railroad purchased under the provisions of this act. shall not be increased without the con- sent of the governmental authority in which is vestefl by law the power to regulate fares and frcnglits; and provided further, that whenevei' a railroad corporation, which has purchased any line of road under this act. shall foa* the purpose <»f compKing with any other common earner l(>wer Its rates for transj^ortation of passengers or freight from one point to another upon such line purchased, such reduced rates shall not be again raised or increased from such standard without the consent of the governmental authority in §497 STREET RAILROAD CORPORATIONS. 156 wbicb shall be Tested the power to regulate fares and freights; aud provided further, that for every violation of the provisions of this act on the part of directors, or other governing officers of said corporation, the state shall be entitled to recover from such offending railroad company the sum of ten thousand dollars. It is hereby declared to be the dutj^ of the attorney-general of the state, in the event of any such violation, to demand and collect from such company the said penalty; and he is hereby authorized and empowered to prose- cute all the necessary actions in the name of the people of the state of California against such com- pany in the courts of the state. All money so col- lected shall be paid into the general fund of this state. [New section added March 22. 1899, Stats. 1899, ch. 142. Tn effect immediately.] TITLE ly. STREET RAILROAD CORPORATIONS. § 497. Authority to lay street railroad track, how ob- tained. § 498. Restrictions and limitations to the grant of the right of way. § 499. Two corporations may use the same track. § 500. Crossing tracks. Obstructions. § 501. Rates of fare, speed, &c. § 502. Time allowed for completion of work of laying down track. § 503. May make further regulations and rules. § 504. Penalty for overcharging. § 505. To provide and furnish passenger tickets. Penalty. § 503. Trial, proof, and limitation. §' 507. City or town to reserve certain rights. § 508. License to be paid to city or town. § 509. Track for grading purposes. § 510. What provisions of Title III are applicable to street railroads. § 511. Title applicable to natural persons alike with corpo- rations. § 497. Authority to lay railroad tracks through the streets and public highways of any incorpo- rated city, city and county, or tow^n, may be ob- tained for a term of years not exceeding fifty, 157 STREET RAILROAD CORPORATIONS. ^ 19H from the trustees, council, or other body to whom is intrusted the ^^overnment of the city, city and county or town, under such restrictions and limi- tations, and upon such terms and payment of license tax, as the city, city and county, or town authority may provide. In no case must permis- sion be fj^ranted to propel cars upon such traclvS otherwise than by electricity, horses, mules, or by wire ropes ruunins under the streets and moved by stationary engines, unless for special reasons in this title hereinafter mentioned; provided, how- ever, that such board or body in granting the right, or at any time after the same is granted, to use electricity or any other of said modes, shall have power to impose such terms, restrictions, and limitations as to the use of streets and the con- struction and mode of operating such electric and other roads as may, by such board or body, be deemed for the public safety or welfare. [Amend- ment approved February 25, 1891; Stats. 1891, p. 12. In effect immediately.] Act relating to sale of franchises: See post. Ap- pendix, p. 814. Act limiting time within which franchise may be granted: See post, Appendix, p. 831. Act validating ordinance granting franchise: See post, Appendix, p. 818. Act empowering railroad to use electricity or steam: See post, Appendix, p. 830. Authority to grant street-railroad franchises. i here given, is to be construed in connection with : the other sections of this title. For example, see ' sec. 499. ; § 498. Tlie city or town authorities, in grant- I ing tlio right of way to street railroad corpora- tions, in addition to the restrictions which they ; are authorized to impose, must require a strict I compliance with the following conditions, except ! Civ. Code. -14. §;499,'.500 STREET RAILROAD CORPORATIONS. 15S in the cases of prismoidal or other elevated rail- ways. In such cases, said raihvay shall be re- quired to be constructed in such a manner as will present the least obstruction to the freedom of the streets in which it may be erected when allowed by the grranting power. First, to construct their tracks on those portions of streets designated in the ordinance granting the right, which must be, as nearly as possible, in the middle thereof. Sec- ond, to plank, pave, or macadamize the entire length of the street used by their track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and with good crossings. Third, that the tracks must not be more than five feet wide within the rails, and must have a space be- tween them sufficient to allow the cars to pass each other freely. [Amendment approved April 8, 1876; Amendments 1875-6, 77. In effect April 3, 1876.] § 499. Two lines of street railway, operated under different managements, may be permitted to use the same street, each paying an equal por- tion for the construction of the tracks and appur- tenances used by said railways jointly; but in no case must two lines of street railway, operated under different managements, occupy and use the same street or tracks for a distance of more than five blocks consecutively. [Amendment approved February 25. 1891; Stats. 1891, p. 13. In effect immediately.] § 500. Any proposed railroad track may be per- mitted to cross any track already constructed, the crost;ing being made as provided in Chapter II,. Ti- tle ill. of this part. In laying down the track and preparing therefor, not more than one block must be obstructed at any one time, nor for a longer period than ten working days. See sees. 465 et seq. 169 STREET RAILROAD CORPORATIONS, jj .'01, "-(ri § 501. The rates of fare on the cars must not exceed ten cents for one fare, for any distance un- der three miles. Tlie cars must be of the most ap- proved construction for comfort and convenience of passenj;ers, and provided with braises to stop the same, when required. The rate of speed must not be jrreater than eight miles per liour. A viola- tion of the provisions of this section subjects the corporation to a fine of one hundred dollars for each offense. Act limitinj? and fixing rates of fares: See post, Appendix, p. 821). Act permitting letter carriers to ride free: See post. Appendix, p. 832. Rates of fare for railroad corporations: See sec. 489. See, also, post. Appendix, p. 829. § 502. Work to construct the railroad must be commenced in good faith within not more than one year from the date of the taking effect of the ordinance granting the right of way, and said work must be completed within not more than three years after the taking effect of such ordi- nance; provided, that the governing body of such municii)al corporation at the time of granting said right of way shall have the power to fix the time for either the commencing or completion, or both, of said work; not, however, to a time less than six months for commencing, and not less than eighteen months for completing the same. A fail- ure to comply with either of the foregoing provi- sions of this section, or with either of the provi- sions of the ordinance granting said right of way, works a forfeiture of the right of way, and also of the franchise, unless the uncompleted portion is abandoned by the person or corporation to whom said right of way is granted, with the consent of the nnthorities granting the right of way, such abandonment and consent to be in writing. The authority granting the right of way shall have the power to grant an extension of time for the §§ 503-505 STREET RAILROAD CORPORATIONS. 180 completion of said work, if it appear that the worlv has been commenced within the time fixed, and prosecuted in good faith; but no extension of time shall be granted for the commencement of said worlv, and shall not be granted for more than one year for the completion of the same. All ex- tensions of time shall be in writing, and made a matter of record in the municipality. Provided further, that this Act shall not in any way affect any franchise or right of way granted before its passage. [Amendment approved February 25, 1895; Stats. 1895, p. IT. In effect immediately.] The three preceding sections are founded on Stats. 1863, 297, sees. 1-5. This section is also bas- ed on Stats. 1870, 482, sees. 1-6. Forfeiture for failure to commence work, of rail- road corporations: See sec. 468; generally, see sec. 358. § 503. Cities and towns in or through which street railroads run may make such further regu- lations for the government of such street railroads as may be necessary to a full enjoyment of the franchise and the enforcement of the conditions provided herein. § 504. Any corporation, or agent or employee thereof, demanding or charging a greater sum of money for fare on the cars of such street railroad than that fixed, as provided in this title, forfeits to the person from whom such sum is received, or who is thus overcharged, the sum of two hun- dred dollars, to be recovered in a civil action, in any justice's court having jurisdiction thereof, against the corporation. § 505. Every street railroad corporation must provide, and, on request, furnish to all persons de- siring a passage on its cars, any required quantity of passenger tickets or checks, each to be good for one ride. Any corporation failing to provide and furnish tickets or checks to any person desir- 161 STREET RAILROAD COKPORATIONS. '^^ .306-.0> incT to purchase the same at not exceeding the rate hereinbefore prescribed, shall forfeit to such person the sum of two hundred dollars, to be re- covered as provided in the preceding section, pro- vided, that the provisions of this section shall not apply to such street railroad corporations as charge but five cents fare. [Amendment approved March 13, 1S83; Stats. 1883, 84. In effect March 13, 1883.] § 506, Upon the trial of an action for any of the sums forfeited, as provided in the two preced- ing sections, proof that the person demanding or receiving the money as fare, or for the sale of the ticket or check, was at the time of making the demand or receiving the money, engaged in an of- fice of the corporation, or vehicle belonging to the corporation, shall be prima facie evi- dence that such. person was the agent, servant, or employee of the corporation, to receive the money and give the ticket or check mentioned. [Amend- ment approved March 30, 1874; Amendments 1873-4, 213. In effect July 1, 1874.] § 507. In every grant to construct street rail- roads, the right to grade, sewer, pave, macadam- ize, or otherwise improve, alter, or repair the streets or highAvays, is reserved to the corporation, and cannot be alienated or impaired; such work to be done so as to obstruct the railroad as little as possible; and, if required, the corporation must shift its rails so as to avoid the obstructions made thereby. [Amendment approved March 30, 1874; Amendments 1873-4, 214. In effect July 1, 1874.] § 508. Each street railroad corporation must pay to the nuthorities of the city, town, county, or city and county, as a license upon each car, such sum as the authorities may fix, not exceeding fifty dollars per annum in the city of San Francisco, nor more than twenty-five dollars per annum in other cities or towns. Where any street railroad connects l\ 509-511 STREET RAILROAD COKPORATIOXS. 1H2 or runs through two or more cities or towns, a pro- portionate or equal share of such license tax must be paid to each of the cities or towns; and no such license tax is due the counts^ authorities where the same is paid to any city or town authority. Licenses: See Polit. Code, sees. 3356 et seq. § 509. The right to lay down a tracli for grad- ing purposes, and maintain tlie same for a period not to exceed three j^ears, may be granted by the corporate authorities of any city or town, or city and county, or supervisors of any city or county, but no such tracl^ must remain more than three years upon any one street; and it must be laid level with the street, and must be operated under such restrictions as not to interfere with the use of the street by the public. The corporate author- ities of any city or town, or city and county, may grant the right to use steam or any other motive power in propelliiig the cars used on such grading tracli, when public convenience or utility demands it. but the reasons therefor must be set forth in the ordinance, and the right to rescind the ordinance at smy time reserved. § 510. Street railroads are governed by the pro- visions of Title III of this part, so far as they are applicable, unless such railroads are therein spe- cially excepted. [Amendment approved March 30. 1S74; Amendments 1873-4, 214. In ettect July 1, 1874.] See sees. 454 et seq, § 511. When a street railroad is constructed, owned, or operated by any natural person, this ti- tle is applicable to such person in lil^e manner as it is applicable to corporations. 163 WAGON ROAD CORPORATIONS. ??51J, 513 TITLE V. WAGON ROAD CORPORATIONS. § 512. Three commissioners to act with surveyor. § 613. Survey and map to be filed and approved by super- visors. § 514. Tolls, &c., to be collected. Penalty for taking un- lawful tolls. § 515. No tolls to be charged on highways or public roads. § 516. Rates of toll to be posted at gate. . § 517. Toll gatherer may detain persons until they pay toll. § 518. Toll gatherer not to detain any person unnecessarily. § 519. Persons avoiding tolls to pay five dollars. § 520. Penalties for trespasses on property of corporation. § 521. When capital invested is repaid, tolls to be reduced, &c. § 522. May mortgage and hypothecate corporate property. § 523. This title applies to natural persons as well as cor- porations. § 512. Where a corporation is foruied for the construction and maintenance of a wagon road, tlie road must be laid out as follows: Three commissioners must act in conjunction with the surveyor of the corporation, two to be appointed by the board of supervisors of the coun- ty throuirh which the road is to run, and one by the cor])oration, who must lay out the proposed road and report their proceedings, together with the map of the road, to the supervisors, as pro- vided in the succeeding section. [Amendment ap- proved March 30, 1874; Amendments 1873-4, 214. In effect July 1, 1874.] Sees. 291-294. § 513. When the route is surveyed, a map thereof must be submitted to and filed with the board of supervisors of each county through or into wliicli the road runs, giving its general course and tlie principal points to or by which it runs, and its widtli, which must in no case exceed one hundred feet, and the supervisors must either ap- prove or reject the survey. If approved, it must be entered of record on the joiu'nal of the board, and such approval authorizes the use of all public §? 514, 515 WAGON ROAD CORPORATIONS. 164 lauds and highways over which the survey runs; but the board of supervisors must require the cor- poration, at its own expense, and the corporation must so change and open the highway so talien and used as to mal^e the same as good as they were before the appropriation thereof; and must so construct all crossings of public highways over and by its road, and its toll gates, as not to hin- def or obstruct the use of the same. § 514. All wagon road corporations may bridge or keep ferries on streams on the line of their road, and must do all things necessary to keep the same in repair. They may take such tolls only on their roads, ferries, or bridges, as are fixed by the board of supervisors of the proper county through which the road passes, or in which the ferry or bridge is situate, except that in the counties of Klamath, Butte, Del Norte, Plumas, Humboldt, and Sierra, the directors may fix their own tolls; but in no case must the tolls be more than suffi- cient to pay fifteen per cent, nor less than ten per cent per annum on the cost of construction, after paying for repairs and other expenses for attend- ing to the roads, bridges, or ferries. If tolls, other than as herein provided, are charged or demanded, the corporation forfeits its franchise, and must pay to the party so charged one hundred dollars as liquidated damages. [Approved March 28, 1874. amendments 1873-4. p. 272. In effect May 27, 1874. J This section was also amended by Act of March 30, 1874. Amendments 1873-4, p. 214; but by section 287 of that act, p. 269, other laws passed at that session superseded the provisions of that act, leaving the preceding act of March 28, 1874, in force 60 days after its passage. Sale of franchise under execution: See sec. 388. Toll roads: Polit. Code, sees. 2779 et seq. § 515. When any highway or public road is taken and used by any wagon road corporation as a part of its road, the corporation must not place 186 WAGON ROAD CORPORATIONS. §§ 51G-J20 a toll gate ou or take tolls for the use of such high- way or public road by teamsters, travelers, drov- ers, or any one transporting property over the same. See infra, sec. 513. § 516. The corporation must affix and keep up, at or over each gate, or in some conspicuous place, so as to be conveniently read, a printed list of the rates of toll levied and demanded. § 517. Each toll gatherer may prevent from passing through his gate persons leading or driv- ing animals or vehicles subject to toll, until they shall have paid, respectively, the tolls authorized to be collected. § 518. Every toll gatherer who, at any gate, unreasonably hinders or delays any traveler or passenger liable to thepayment of toll, or demands or receives from any person more than he is au- thorized to collect, for each offense forfeits the sum of twenty-five dollars to the person aggrieved. § 519. Every person who, to avoid the payment of the legal toll, with his team, vehicle, or horse, turns out of a wagon, turnpike, or plank road, or passes any gate thereon or ground adjacent there- to, and again enters upon such road for each of- fense forfeits the sum of five dollars to the cor- poration injured. § 520. Every person who: 1. Willfully breaks, cuts down, defaces, or in- jures any milestone or post on any wagon, turn- pike, or plank road; or, 2. Willfully breaks or throws down any gate on such road; or, 3. Digs up or injures any part of such road, or anything thereunto belonging; or, 4. Forcibly or fraudulently passes any gate thereon without having paid the legal toll; For each offense forfeits to the corporation in- gg 521-323 BRIDGE, FERRY, ETC., CORPORATIONS. 166 jured the sum of tweuty-tive dollars, in addition to the damages resulting from his wrongful act. § 521. The entire revenue derived from the road shall be appropriated: first, to repayment to the corporation of the costs of its construction, together with the incidental expenses incurred in collecting tolls and keeping the road in repair; and. second, to the payment of the dividend among its stockholders, as provided in section five hun- dred and fourteen. When the repayment of the cost of construction is completed, the tolls must be so reduced as to raise no more than an amount sufficient to pay said dividend, and incidental ex- penses, and to keep the road in good repair. [Amendment approved March 30, 1874: Amend- ments 1873-4, 215. In effect July 1, 1874.] § 522. The corporation may mortgage or hy- pothecate its road and other property for funds with which to construct or repair their road, but no mortgage or hypothecation is valid or binding un- less at least twenty-five per cent, of the capital stock subscribed has been paid in and invested in the construction of the road and appurtenances, and then only after an affirmative vote of two- thirds of the capital stock subscribed. § 523. When a wagon, turnpike, or plank road is constructed, owned, or operated by any natural person, this title is applicable to such person in like manner as it is applicable to corporations. Construction of Toll Roads: See Polit. Code, sees. 2779-2831. TITLE VI. BRIDGE, FERRY, WHARF. CHUTE. AND PIER COR- PORATIONS. § 528. Corporation to obtain license from supervisors. § 529. In what contingencies corporate existence ceases. § 530. President and secretary to make annual report, and what to contain. Damages for failing to report. § 531. This title to apply to natural persons alike with cor- porations. I(i7 BRIDGE, FERRY, ETC.. CORPORATIONS, i; 5'2>?-.j30 § 528. No corporatiou must construct or take tolls on a bridge, ferry, wharf, chute, or pier un- til authority is granted therefor by the super- visors. Public ferries and toll bridges: See Tolit. Code, sees. 2S43 et sea. § 529. Every such corporation ceases to be a body corporate: 1. If, within six mouths from filing its articles of incorporation, it has not obtained such author- ity from the board of supervisors; and if, within one year thereafter, it has not commenced the construction of the bridge, wharf, chute, or pier, and actually expended thereon at least ten per cent, of the capital stock of the corporation; 2. If, within three years from filing the arti- cles of incorporation, the bridge, w^harf, chute, or pier is not completed; 3. If, when the bridge, wharf, chute, or pier of the corporation is destroyed, it is not recon- structed and ready for use within three years thereafter; 4. If the ferry of any such corporation is not in running order within three months after authority is obtained to establish it, or if at any time there- after it ceases, for a like term consecutively, to r.erform the duties imposed by law\ § 530. The president and secretary of every bridge, ferry, wharf, chute, or pier corporation must annually, under oath, report to the board of supervisors of the county in which the articles of incorporation are filed: 1. The cost of constructing and providing all necessary appendages and appurtenances for their bridge, ferry, wharf, chute, or pier; 2. The amount of all moneys expended thereon, since its construction, for repairs and incidental expenses; 3. The amount of their capital stock, how much § 531 TELEGRAPH CORPORATIONS. 168 paid in, and how much actually expended thereof; 4. The amount received during the year for tolls and from all other sources, stating each sepa- rately ; 5. The amount of dividends made, and the in- debtedness of the corporation, specifying for what it was incurred; 6. Such other facts and particulars respecting the business of the corporation as the board of supervisors may require. This report the president and secretary must cause to be published for four weeks in a daily newspaper published nearest the bridge, ferry, wharf, pier, or chute, if required by order of the board of supervisors. A failure to make such re- port subjects the corporation to a penalty of two hundred dollars; and for every week permitted to elapse after such failure, an additional penalty of fifty dollars; payable in each case to the county from which the authority of the corporation was derived. All such cases must be reported by the board of supervisors to the district attorney, who must commence an action therefor. § 531. When a bridge, ferry, wharf, chute, or pier is constructed, operated, or owned by a natural person, this title is applicable to such per- son in "like manner as it is applicable to corpora- tions. General provisions: Public Ferries and Toll Bridges, Polit. Code, sees. 2843-2895; Wharves, Chutes, and Piers, Polit. Code, sees. 2906-2920. TITLE VIT. TELEGRAPH CORPORATIONS. § 536. May use right of way along waters, roads, and b''q-n- ways. § 537. Persons liable for damages for injuring telegrapb property. § 538. Party guilty of willful and malicious injury, liable to one hundred times actual damages. ICI TFI.KGKAPH CORPORATIONS. §§ .■.:;t;-539 § 539. Conditions on which damage to subaqueous cable may be recovered. § 540. May dispose of certain rights. Sj 541. Rates of charges to bo fixed, and how published. (Repealed.) § 536. Telej^rapli eorporatious may construct Hues of telegraph along aud upon auy public road or highway, along or across any of the waters or lands within this IState, and may erect poles, posts, piers, or abutments for supporting the insu- lators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or high- way, or interrupt the navigation of the waters. For an act to facilitate telegraphic communica- tion between America and Asia, approved Febru- ary 13, 1872; Stats. 1871-2. 1)7. Telegraph companies are common carriers: See sees. 2207 et sea. § 537. Any person who injures or destroys, through want of proper care, any necessary or useful fixtur'" ■')f any telegraph corporation, is lia- ble to the corporation for all damages sustained thereby. Any vessel which, by dragging its an- chor or otherwise, breaks, injures, or destroys the subaqueous cable of a telegraph corporation, sub- jects its owner to the damages hereinbefore spec- ified. § 538. Any person who willfully and malicious- ly does any injury to any telegraph property men- tioned in the preceding section, is liable to the corporation for one hundred times the amount of actual damages sustained thereby, to be recovered in any court of competent jurisdiction. § 539. No telegraph corporation can recover dnmngos for the breaking or injury of any sub- aqueous telegraph cable, unless such corporation hns previously erected on either bank of the waters under which the cable is placed, a monu- Civ. Code. -15. %l 540, 548 WATER AND CANAL CORPORATIONS. 170 ment. indicating the place where the cable lies, and publishes for one month in some newspaper most liljely to give notice to navigators, a notice giving a description and the purpose of the mon- uments, and the general course, landings, and ter- mini of the cable. § 540. Any telegraph corporation may at any time, with the consent of the persons holding two- thirds of the issued stock of the corporation, sell, lease, assign, transfer, or convey any rights, priv- ileges, franchises, or property of the corporation, except its corporate franchise. § 541. [Repealed, March 30. 1874; Amendments 1873-4, 216. In effect July 1, 1874.] TITLE YIII. WATER AND CANAL CORPORATIONS. § 548. Corporation may obtain contract to supply city or town. S 549. Duties of corporation. Rates fixed by commission- ers. § 550. Right to use streets, ways, alleys, and roads. § 551. To build and keep bridges in repair. § 552. Irrigation. Easement and water rates. city, city and county, or town with water must do so unless previously authorized by an ordinance of the authorities thereof, or unless it is done in conformity with a contract entered into between the city, city and county, or town and the cor- poration. Contracts so made are valid and bind- ing in law, but do not take from the city, city and county, or town the right to regulate the rates for water, nor must any exclusive right be grant- ed. No contract or grant must be made for a term exceeding fifty years. Stats. 1852, 171, sec. 2; sees. 1410 et seq. Act authorizing supervisors to fix rates: See post. Appendix, p. 850. 171 WATER AND CANAL CORPORATIONS. §§ 64'.t, 550 § 549. All corporations formed to supply water to cities or towns must furnish pure fresh water to the inhabitants thereof, for family uses, so lon.2: 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 ^reat necessity, free of char.cre. The rates to be charged for water must be determined by com- missioners, to be selected as follows: two by the city and county or city or town authorities, or, when there are no city or town authorities, by the board of supervisors of the county, and two by the water company; and in case a majority cannot agree to the valuation, the four commissioners must choose a fifth commissioner; if they cannot a£:ree upon a fifth, then the county judge of the county must appoint such fifth person. The de- cision of the majority of the commissioners shall determine the rates to be charged for water for one year, and until new rates are established. The board of supervisors, or the proper city or town authorities, may prescribe proper rules re- lating to the delivery of water, not inconsistent with the laws of the State. [Amendment ap- proved March 30, 1874; Amendments 1873-4, 216. In effect July 1, 1874.] ' Stats. 1858. 219, sec. 4. I § 550. Any corporation created under the pro- I visions of this part, for the purposes named in ! this title, subject to the reasonable direction of j the board of supervisors, or city or town authori- . ties, ns to the mode and manner of using such - right of way, may use so much of the streets, 1 ways, and alleys in any town, city, or city and I county, or any public road therein, as may be I necessary for laying pipes for conducting water i into any such town, city, or city and county, or { through or into any part thereof. I Stats. 18GS, 220, sec. 5. gg 551, 552 WATER AND CANAL CORPORATIONS. 172 § 551. Every water or canal corporation must construct and keep in good repair, at all times, for public use, across their canal, laume, or water pipe, all of the bridges that the board of super- visors of the county in ^vhich such canal is sit- uated may require, the bridges being on the lines of public highways and necessary for public uses in connection with such highways; and all water- works must be so laid and constructed as not to obstruct public highways. Stats. 1862. 541, sec. 4: See sees. 1410. et seq. See the earlier acts upon canal and ditch cor- porations: Act May 14, 1862, Stats. 1862, 541; and the subsequent act. April 2, 1870, Stats. 1870, 660. See also Statutes in Force, tit. Water Commis- sioners- Act of March 30. 1872. Relative to Formation of Canal and Ditch Corporations, Stats. 1871-2, p. 733. § 552. Whenever any corporation, organized under the laws of this State, furnishes water to irrigate lands which said corporation has sold, the right to the flow and use of said water is and shall remain a perpetual easement to the land so sola, at such rates and terms as may be established by said corporation in pursuance of law. And when- ever any person who is cultivating land, on the line and within the flow of any ditch owned by such corporation, has been furnished water by it. with which to irrigate his land, such person shall be entitled to the continued use of said water, upon the same terms as those who have purchased their land of the corporation. [New section ap- proved April 3, 1876; Amendments 1875-6, 77. In effect April 3, 1876.] Irrigation, laws relating to: See Statutes in force, title Irrigation. Act regulating sale, rental, and distribution of appropriated water: See post, Appendix, p. 836. 173 HOMESTEAD CORPORATIONS. §5 557-559 TITLE IX. HOMESTEAD CORPORATIONS. § 557. Time of corporate existence. § 558. By-laws must specify time for and amount of pay- ment of Installments, and penalty for failure to pay. By-laws to be furnished to any member on demand. § 559. Advertisement and sale of delinquent and forfeited shares. § 560. May borrow and loan funds— how, and for what time. § 561. Minor children, wards, and married women may own stock. § 562. Forfeiture for speculating in or owning lands ex- ceeding two hundred thousand dollars. § 663. When corporation is terminated, and how. § 564. Payment of premiums. § 565. Annual report to be published. § 566. Publication in certain cases. § 557. Corporations organized for the purpose of acquiring lands in large tracts, paying off in- cumbrances thereon, improving and subdividing them into homestead lots or parcels, and distrib- uting them among the shareholders, and for th<' accumulation of a fund for such purposes, are known as homestead corporations, and must not have a corporate existence for a longer period I than ten years. ■ Time of corporate existence: See post, Ap- 1 pendix, p. 773. I j § 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 I of default. A printed copy of the articles of in- j corporation and by-laws must be furnished to any shareholder on demand. § 559. Whenever any shares of stock are de- § 560 HOMESTEAD CORPORATIONS. 174 Glared forfeited, by resolution of the board of di- rectors, 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 news- paper of general circulation in the city, town, or county where the principal place of business of such corporation is located. Such sale must be made at auction, under the direction of the secre- tary of the company. The corj^oration may be a bidder, and the shares must be disposed of to the highest bidder for cash. No defect, informality. or irregularity in the proceedings respecting the sale invalidates it. if notice is given as herein pro- vided. After the sale is made the secretary must, on receipt of the purchase money, transfer to the purchaser the shares sold, and after deducting from the proceeds of such sale all installments then due. and all expenses and charges of sale, must hold the residue subject to the order of the delinquent subscriber. § 560. Homestead corporations may borrow money for the purposes of the corporation, not ex- ceeding at any one time one-fourth of the aggre- gate amount of the shares or parts of shares actu- ally paid in, and the income thereof; no greater rate of interest must be paid therefor than twelve per cent, per annum. For the purpose of complet- ing the purchase of lands intended to be divided and distributed, they may borrow on the security of their shares on the 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 extendmg beyond that of its existence. 175 HOMESTEAD CORPORATIONS. §5 661-563 § 561. Such shares of stock in homestead cor- porations as may be acquired by children, tlie coat of which, and the deposits and assessments on which are paid from the personal earnings of the children, or with gifts from persons other than their male parents, may be talcen 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 husbands. § 562. Homestead corporations must not pur- chase and sell, or otherwise acquire and dispose of real property, or any interest therein, or any personal property, for the sole purpose of specula- tion or profit. 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 provisions of this section corporations forfeit their corporate rights and powers. On the application of any citizen to a court of competent .I'urisdiction such forfeiture may be adjudged, and the judgment carries with it costs of the proceedings. § 563. Except for the purpose of winding up and settling its affairs, every homestead corpora- tion must terminate at the expiration of the time fixed for its existence in the articles of incor- poration, or when dissolved as provided in this part. Xo dividend of funds must be made on ter- mination of its corporate existence, until its debts and liabilities are paid: and upon the final settle ment of the affairs of the corporation, or upon the termination of its corporate existence, the direct- ors, in such manner as they may determine, must §§ 564-566 HOMESTEAD CORPORATIONS. 176 divide its property among its shareholders in pro- portion to their respective interests, or, upon the application of a majority in interest of the stocli- holders, must sell and dispose of any or all of the real estate of the corporation upon such terms as may be most conducive to the interests of all the stockholders, and must convey the same to the purchaser, and distribute the proceeds among the shareholders, or may at any time, when best for the interests of all the shareholders, cause the lands of the corporation to be subdivided into lots and distributed, by sale for premiums, at auction or otherwise, among the shareholders. § 564. Such premiums on lots may be made payable at the time they are bid off, and, if not so paid on any lot of land, the directors may im- mediately offer the same for sale again. If made payable at a future day, and any shareholder fails to 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 premiums. § 565. The actual financial condition of all homestead corporations must, by the directors thereof, be published annually in the [a] newspa- per published at the principal place of business of the corporation, for four weeks, if published in a weekly, and two weeks, if published in a daily. The statement must be made up to the end of each year, and must be verified by the oath of the president and secretary, showing the items of property and liabilities. § 566. In any case in which a publication is re- quired, and no newspaper is published at the prin- 177 SAVINGS AND LOAN CORPORATIONS. § 571 cipal place of business, the publication may be made in a paper published in an adjoining county. See Act of March 23, 1874, Relative to Home- stead Corporations, Appendix, p. 776. TITLE X. SAVINGS AND LOAN CORPORATIONS. J 571. May loan money— on what terms, how, and to whom, and how long. § 572. Capital stock, and rights and privileges thereof. S 573. No dividends, except from surplus profits. To con- tract no liability, except for deposits. § 574. Property which may be owned by corporations, and how disposed of. Restrictions in purchases as pro- vided above. i i 575. Married women and minors may own stock in their I own right. ' ! 576. May issue transferable certificates of deposit. Special certificates. , S 577. To provide reserve fund for the payment of losses. § 578. Prohibition on director and oflBcer, and what va- ; cates office. i i 579. Definition of phrase "create debts." I Stats. 18G2, 199, sees. 4, 5; 1864, 158, sec. 2. j Banks cannot be created except under general ' laws: Const. Cal., art. 12, sec. 5. \ § 571. Corporations organized for the purpose ^ of accumulating and loaning the funds of their ) members, stoclvholders, and depositors, may loan and invest the funds thereof, receive deposits of money, loan, invest, and collect the same, with interest, and may repay depositors with or with- out interest. No such corporation must loan money, except on adequate security on real or personal property, and such loan must not be for a longer period than six years. Act relating to banking corporations repealed: See post. Appendix, p. 714. Act compelling bank to publish statement of unclaimed deposits: See post, Appendix, p. 716. §§ 572-574 SAVINGS AND LOAN CORPORATIONS. 178 Act providing for dissolution and winding up of savings banlis and trust companies: See post, Ap- pendix, p. 721. § 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 priv- ileges to be accorded to, and the obligations to be imposed upon, such capital stock, as distinct from those of depositors, must be fixed and defined, either in the articles of incorporation or in the by- laws. Stats. 1862, 203, sec. 17. Stats. 1870, ISO, sec. 1; 1862, 199, sees. 10, 22. Increase of capital stock: See post. Appendix, p. 719. § 573. The directors of savings and loan cor- porations may, at such times and in such manner as the by-laws prescribe, declare and pay divi- dends of so much of the profits of the corpora- tion, and of the interest arising from the capital stocli and deposits, as may be appropriated for that purpose under the by-laws or under their agreements with depositors. The directors must not contract any debt or liability against the cor- poration for any purpose whatever, except for de- posits. The capital stock and the assets of the corporation are a security to depositors and stock- holders, depositors having the priority of security over the stockholders, but the by-laws may pro- vide that the same security shall extend to de- posits made by stockholders. Act prohibiting dividing or withdrawing of cap- ital stock: See post, Appendix, p. 719. § 574. Savings and loan corporations may pur- chase, hold and convey real and personal prop- erty, as follows: 179 SAVINGS AND LOAN CORPORATIONS. § 574 1. The lot and biiildiii}:: in which the business of the corporation is carried on, the cost of whicli must not exceed one hundred thousand dollars; except, on a vote of two-thirds of the stoclvhold- ers, the corporation may increase the sum to an amount not exceedinj^ two hundred and fifty thou- sand dollars; 2. Such as may have been mortj?aj?ed, pledged, or conveyed to it in trust, for its benefit in good faith, for money loaned in pursuance of the regu- lar business of the corporation; 3. Such as may have been purchased at sales under pledges, mortgages, or deeds of trust made for its benefit, for money so loaned, and such as may be conveyed to it by borrowers in satisfac- tion and discharge of loans made thereon; 4. No such corporation must purchase, hold, or convey real estate in any other case or for any other purpose; and all real estate described in sub- division three of this section must be sold by the corporation within five years after the title there- to is vested in it by purchase or otherwise; 5. No corporation must purchase, own, or sell personal property, except such as may be requisite for its immediate accommodation for the con- venient transaction of its business, mortgages on real estate, bonds, securities, or evidences of in- debtedness, public or private, gold and silver bul- lion, and United States mint certificates of ascer- tained value, and evidences of debt issued by th- United States; 6. No corporation must purchase, hold, or con- vey bonds, securities, or evidences of indebted- ness, public or private, except bonds of the United States, of the State of California, and of the coun- ties, cities, or cities and counties, or towns of the State of California, unless such corporation has a capital stock or reserved fund paid in, of not less than three hundred thousand dollars. [Ap- §§ 575-577 SAVINGS AND LOAN CORPORATIONS. 180 proved March IS. 1S74; Amendmenis 1873-4, 273. In effect immediately.] § 575. Married women and minors may, in their own right, make and draw deposits and draw dividends, and give valid receipts therefor. Stats. 1862, 199, sees. 14, 15; 1864, 158, see. 4; 1870, 132, sees. 2, 3. § 576. Savings and loan corporations may is- sue general certificates of deposit, which are trans- ferable, as in other cases, by indorsement and de- livery; may issue, when requested by the deposi- tor, special certificates, acknowledging the de- posit by the person therein named of a specified sum of money, and expressly providing on the face of such certificate that the sum so deposited and therein named may be transferred only on the books of the corporation; payment thereafter made by the corporation to the depositor named in such certificate, or to his assignee named upon the books of the corporation, or, in case of death, to the legal representative of such person, of the sum for which such special certificate was issued, dis- charges the corporation from all further liability on account of the money so paid. Stats. 1867-8, 459, see. 1. § 577. Savings and loan corporations may pre- scribe by their by-laws the time and conditions on which repayment is to be made to depositors; but whenever there is any call by depositors for re- payment of a greater amount than the corporation may have disposable for that purpose, the direct- ors or officers thereof must not make any new loans or investments of the funds of the deposi- tors, or of the earnings thereof, until such excess of call has ceased. The directors of any such cor- poration having no capital stock must retain, on 181 SAVINGS AND LOAN CORPORATIONS. §§ 578, B7» each dividend dny, at least five per cent, of the net profits of tlie corporation, to constitnte a re- serve fund, which must be invested in the same manner as other funds of the corporation, and must be used toward payinc: any losses which the corporation may sustain in pursuing; its lawful business. The corporation may provide by its, by- laws for the disposal of any excess in the reserve fund over one hundred thousand dollars, and the final disposal, upon the dissolution of the corpo- ration, of the reserve fund, or of the remainder thereof, after payment of losses. Stats. 1SG2, 201, sec. 11; 1870, 523, 822. § 578. No director or officer of any savings and loan corporation must, directly or indirectly, for himself or as the partner or aij:ent of others, bor- row any of the deposits or other funds of such corporation, nor must he become an indorser or surety for loans to others, nor in any manner be fin obligor for moneys borrowed of or loaned by such corporation. The office of any director or officer who acts in contravention of the provisions of this section immediately thereupon becomes va- cant. Overdravring of his account by officer, a misde- meanor: Penal Code, sec. 501. § 579. Receiving deposits, issuing certificates of deposit, checks, and bills of exchange, and the lilve, in the transaction of the business of savings and loan corporations, must not be construed to be the crention of del)ts within the meaning of the phrase "create debts," in section 300. See Act of February 21, 1872, Relative to Cor- porations for the Accumulation and Investment of Punds and Savings. Appendix, p. 719. Civ. rod.>.— Ifi. §§ 584-586 MINING CORPORATIONS. 182 TITLE XL MINING CORPORATIONS. § 584. Removal of the principal office provided for. (Re- pealed.) § 585.' Directors to file certificates of proceedings in offices of county clerks and secretary of state. § 586. Transfer agencies. § 587. Stock issued at transfer agencies. § 584. [Repealed April 3, 187G; Amendments 1875-6, 73. In effect immediately.] § 585. When the publication provided for in the preceding section has been completed, the direct- ors of the corporation must file in the offices of the clerks of the counties from and to which such change has been made, and in the office of the secretary of state, certified copies of the written consent of the stockholders to such change, and of the notice of such change, and proof of publica- tion; also, a certificate that the proposed removal has taken place; and thereafter the principal place of business of the corporation is at the place to which it is removed. Stats. 1863-4. 76. sec. 1. Act for protection of miners: See post, Appen- dix, pp. 802, 803. Act relating to removal of officers: See post. Ap- pendix, p. 804. § 586. Any corporation organized in this State lor the purpose of mining or carrying on mining operations in or without this State, may establish and maintain agencies in other States of the TTnited States, for the transfer and issuing of their stock: and a transfer or issue of the same at any such transfer agency, in accordance with the pro- visions of its by-laws, is valid and binding as 183 BENEVOLENT CORPORATIONS. §§ 587-593 fully and effectually for all purposes as if made upon the books of such corporation at its principal office witliin this State. The agencies must be governed by the by-laws and the directors of the corporation. Stats. 18G3-4, 76, see. 2. § 587. All stoclv of any such corporation, issued at a transfer agency, must be signed by the presi- dent and secretary of the corporation, and coun- tersigned at the time of its issue by the agent having charge of the transfer agency. No stock must be issued at a transfer agency unless the certificate of stock, in lieu of which the same is issued, is at the time surrendered for cancella- tion. Stats. 1863-4. 429. sees. 1, 3. TITLE XII. BENEVOLENT CORPORATIONS. § 593. Corporations for purposes other than profit, how formed. § 594. Additional facts, articles of Incorporation to set out. § 595. Amount of real estate limited. § 596. Land held by Masons, Odd Fellows, and Pioneers. § 597. Directors to make verified report annually. § 598. Sale and mortgage of real estate. § 599. What may be provided for in their by-laws, &c. § 600. Members admitted after incorporation. § 601. No member to transfer membership, &c. § 602. Religious societies may become sole corporations. § 303. Churches, how incorporated. § 604. Same. § 593. Any number of persons associated to- gether for any purpose, where pecuniary profit is not their object, and for which individuals may lawfully n.«JSOciate themselves, may, in accordance with the rules, regulations, or discipline of such association, elect directors, the number thereof to be not less than three nor more than eleven, and §§ 594, 595 BENEVOLENT CORPORATIONS. 184 may iucorporate themselves as provided in this part. [Amendment approved April 6, 1880; Amendments, 1880, p. 6. In effect April 5, 1880.] Act relating to mutual benefit and relief associa- tions: See post. Appendix, p. 723. Benevolent associations not insurance compa- nies: Sec. 451, ante. § 594. In addition to therequirements of section 290, the articles of incorporation of any associa- tion mentioned in the preceding section must set -forth the holding of the election for directors, the time and place M-here the same was held, that a majority of the members of such association were present and voted at such election, and the result thereof; which facts must be verified by the offi- cers conducting the election. Stats. 1850, 3-47, sec. 170; 1862. 125. § 595. All such corporations may hold all the property of the association owned prior to incor- poration or acquired thereafter in any manner, and transact all business relative thereto: but no such corporation must own or hold more real estate than may be necessary for the business and ob- jects of the association and providing burial grounds for its deceased members, not to exceed six whole lots in any city or town, nor more than twenty acres in the country, the annual increase, income, or profit whereof must not exceed fifty thousand dollars: provided, that any such corpora- tion now. or hereafter having, and having had continuously for the next preceding three years, the care, custody, control, and maintenance each year, upon an annual average of not 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 the countrv. outside of anv 185 BENEVOLENT CORPORATIONS. §§ .7.)G-.J<.»8 iucorpoi-aled city or town, and the annual income or profit of which does not exceed fifty thousand dolhirs; and provided further, such orphan asyhim shall be situated on such lands; and provided fur- ther, that the limitations herein provided for shall not applj' to corporations formed, or to be formed, under section six hundred and two of the Civil Code, when the laud is held or used for churches, hospitals, schools, colleges, orphan asylums, par- sonaj;es, or cemetery purposes, or to cori>orati(ms organized other than for protit, when the land is timber land, and not exeeoding one hundred and sixty acres in extent, and is held or used for the purposes of the organizations, in which case said land shall be subject to all laws regulating the preservation of forests. [Amendment approved Fel)ruary 10. 1899; Stats. 1899, eh. 12. In effect immediately.] § 596. In addition to tliat provided for in the preceding section, friendly societies and Pioneer associations may hold such real estate as may be necessary to carry out their charitable pur- poses, or for the establishment and endowment of institutions of learning connected therewith. In case any such corporation is the owner, by dona- tion or purchase, of more lands than herein or in the preceding section provided for, such surplus must be sold and conveyed by the corporation witliin five years after its acquisition. Such sale may be made without the order or decree of the Superior Court, as hereinafter provided. [Amend- ment in effect April 6, 1880.] § 597. The directors must annually malce a full report of all property, real and personal, held in trust for their corporation by them, and of the con- dition thereof, to the members of the associa- tion for which they are acting. § 598. Corporations of the character mention- ed in section r>9o may mortgage or sell the real property held by them, and may secure the pay- § 599 BENEVOLENT CORPORATIONS. 186 ment of indebtedness by deed of trust or mort- gage upon their real property, upon obtaining an order for that purpose from the superior court held in the county in which the property is sit- uated. The corporations above mentioned may also issue bonds, payable at any time within twen- ty years, as evidence of the indebtedness secured by mortgage or deed of trust. Before making the order, proof must be made to the satisfaction of the court, that notice of the application for leave to sell or mortgage or execute a deed of trust has been given by publication in such manner and for such time as' the court or the judge has directed, and that it is to the interest of the corporation that leave should be granted as prayed for. The application must be made by petition, and any member of the corporation may oppose the grant- ing of the order by affidavit or otherwise. But nothing herein contained shall prohibit or prevent the trustees or directors of such corporation, un- der such rules and regulations as they may adopt from disposing of burial plots situated in grounds of such corporation dedicated for burial purposes, without making such application to or obtaining an order from court. [Amendment approved March 20, 1S91; Stats. 1891, p. 179. In effect im- mediately.] § 599. Corporations now organized or that may hereafter be organized for purposes other than profit, may, either in their by-laws, ordi- nances, constitutions, or articles of incorporation, provide for: 1. The qualification of members, mode of elec- tion or appointment, and terms of admission to membership; 2. The fees of admission and dues to be paid to their treasury by members; 3. The number of persons that shall constitute a quorum at any meeting of the corporation, and that an election of officers of the corporation by a meeting so constituted or the appointment or selection of such officers, or any of them, in any manner required by the rules, regulations, or dis- cipline of any specified religious denomination, so- ciety, or church shall be as valid as if made at an 187 BENEVOLENT CORPORATIONS. §§ 600-602 election at which a uiajority of tlio members of the corporation were present and voted; 4, Tlie expulsion and suspension of members for misconduct or noni)ayment of dues, also for res- toration to memlx'rship; 5. A si)ecial nictliod of orsanizlnj? the board of directors, and a special method of increasing or diuiiiilsliins the number of directors witliiu the limits as to number prescribed by section five hundred and ninety-tliree of this Code; (). Contracting, securing, paying, and limiting the amount of their indel)tedness; 7. Tliat the rules, regulations, or discipline for the time being, of any specified religious denom- ination, society, or church, shall always be a part of their by-laws, ordinances, constitutions, or ar- ticles of incorporation; 8. Other reirulations not repugnant to the Con- stitution or laws of the State and consonant with the objects of the corporation. [Approved March 31, 1807.] § 600. ^rembers admitted after incorporation have all the rights and privileges, and are subject to the same responsibilities, as members of the association prior thereto. I Stats. 1863. 624. sec. 7. ! § 601. No member, or his legal representative. ' must dispose of or transfer any right or privilege } conferred on him by reason of his membership of I such corporation, or be deprived thereof, except ias herein provided. I See acts of March 28, 1874, Relative to Mutual Beneficial and Relief Associations, Appendix, p. 723; and January 8,1872, Relative to Incorporation lof Colleges by Benevolent and Religious Societies, Stats. ] 871-2, p. 10. ' § 602. Whenever the rules, regulations, or dis- tclpline of any religious denomination, society, or Ichurch so require, for the administration of the litemporalities thereof, and the management of the lestate and property thereof, it shall be lawful for [the bishop, chief priest, or presiding elder of such [religious denomination, society, or church to be- § 602 BENEVOLENT CORPORATIONS. 188 come a sole corporation, in the manner pre- scribed in this title, as nearly as may be. and with all the powers and duties, and for the uses and purposes in this title provided for relisrious incor- porations, and subject to all the conditions, limi- tations, and provisions in said title prescribed. Every corporation sole shall, however, for the purposes of the trust, have power to contract in the same manner and to the same extent as a natural person, and may sue and be sued, and may defend, in all courts and places, in all mat- ters and proceedings whatever, and shall have au- thority to borrow money, and give promissory notes therefor, and to secure the payment thereof by mortgage or other lien upon property, real or personal; to buy, sell, lease, mortgage, and in every way deal in real and personal property in the same manner that a natural person may, and without the order of any court; to receive be- quests and devises for its own use or upon tnists to the same extent as natural persons may; and to appoint attorneys in fact. The articles of in- corporation to be filed shall set forth the facts authorizing such incorporation, and declare the manner in which any vacancy occurring in the incumbency of such bishop, chief priest, or pre- siding elder is required by the rules, regula*tious, or discipline of such denomination, society, or church to be filled, which statement shall be veri- fied by affidavit, and for proof of the appointment or election of such bishop, chief priest, or presid- ing elder, or of any succeeding incumbent of such corporation, it shall be sufficient to record with the clerli of the county in which such bishop, chief priest, or presiding elder resides, the origi- nal or a copy of his commission, or certificate of letters of election or appointment, duly attested; provided, all property held by such bishop, chief 189 BENKVOLEXT CORPORATIONS. § 602 priest, or presidini; elder shall be in trust for the use, purpose, «and behoof of his relijrious denomi- nation, society, or church. The limitation in sec- tion five hundred and ninety-five shall not apply to corporations formed under this section, when the land is held or used for churches, hospitals, schools, colley:es. orphan asylums, parsonages, or cemetery purposes. xVuy judge of the Superior Court in the county in which any corporation is formed under this chapter shall at all times have access to the books of such incorporation. Any corporation sole heretofore organized and exist- ing under the laws of this State may elect to con- tinue its existence under this title by filing a cer- tificate to tliat effect, under its corporate seal and the hand of its incumbent, or amended articles of incorporation, in the form required by this title, and as prescribed by section two hundred and eighty-seven of this Code; and from and after the filing of such certificate or amended articles, such corporation shall be entitled to the privileges and subject to the duties, liabilities, and provis- ions in this title expressed. [Approved March 11, 1SD7; Stats. 18D7, 98.] § 602. Note — This section was also amended in 1880; Amendments 1880. p. 6. The original of the foregoing section G02 was a new section added to the Code by act of March 30, 1878; Amendments 1877-8, 84; took effect im- mediately. That act contains the following addi- tional section: Continuance of existence. Sec. 2. Any corporation sole heretofore organized and ex- isting under the laws of this State may elect to continue its existence under this act by filing a certificate to that effect, under its cor- I)orate seal and the hand of its incumbent or amended articles of incorporation, in the form re § 603 BENEVOLENT CORPORATIONS. 190 quired by the preceding section, as prescribed by section two hundred and eighty-seven (287) of the Civil Code; and from and after the filing of sucb certificate or amended articles such corporation shall be entitled to the privileges and subject to the duties, liabilities, and provisions of this act expressed. § 603. Whenever the regulations, rules, or dis- cipline of any church or religious society require, for the administration of the temporalities there- of, or for the management of the property or es- tate thereof, any diocese, synod, or district organi- zation of such church or religious society may elect directors and become an incorporation in the manner prescribed in this title, and with all the powers and duties, and for the uses and purposes in this title provided for benevolent or religious incorporations, and subject to all the conditions, limitations, and provisions in said title prescribed, except as otherwise provided in this section; pro- vided, that directors of such incorporation may be elected, and that the by-laws for its govern- ment may be made and amended by the conven- tion, synod, or other representative body of such church or religious society, in and for such district, in accordance with the constitution, by-laws, dis- ciplin-e, or regulation thereof, at any regular meet- ing, or special meeting called for that purpose: and. provided, the certificate of incorporation and of the election of directors to be filed shall be suf- ficiently signed and attested by the signature of the presiding officer and secretary of the repre- sentative convention, synod, or other such body, in which such election is held: and. provided, all property held by such incorporation shall be in trust for the use, benefit, and purpose of the church or religious society by and for which such incorporation was formed, and in and of which such diocese, synod, or other district is an organ- 191 BENEVOLENT CORPORATIONS. 5 604 izod or constitueut part; and that the limitation in Koction five hundred and ninety-five shall not ap- ply to corporations formed under this section, when the land is held or used for churches, hos- pitals, schools, collejs'es, asylums, parsonages, or cemetery purposes. ['Saw section approved March 12, 1885; Stats. 1885, 109.] ^ 604. Any church or other religious associa- tion in this State, composed of two or more con- stituent parishes, missions, congregations, or so- cieties, having a common convention, synod, coun- cil, or other representative legislative body, may be incorporated by such representative body under this part and subject to the provisions of this ti- tle, except as otherwise provided in this section. The representative body of such religious associa- tion electing to incorporate the same shall de- termine the name of the proposed corporation, the purpose for which it is formed, the place where its principal business is to be transacted, the term for which it is to exist, and the number of its di- rectors, and shall elect its directors for the first year. The articles of incorporation need only be signed and acknowledged by the presiding officer land secretary of such representative body, and in addition to the requirements of section two. hun- (dred and ninety, shall set forth the proceedings I herein prescribed for said representative body, jand that the same were duly had in accordance [with the constitution, canon, rules, or regulations [governing the other proceedings of said represent- iative body, and the time and place thereof. The directors of such corporation shall be elected an- nually by the representative body of the associa- !tion. The representative body providing for such I incorporation shall frame by-laws for the corpo- 'ration, and such by-laws may be repealed or [amended, or new by-laws may be adopted by any ,subsequent representative body in accordance § 608 CEMETERY CORPORATIONS. 192 with the constitiitioD, canons, rules, or regulations fiCOYerning the other proceedings of such represent- atiYe body. Such corporation may hold and ad- minister not only the common property, funds, and money of such association, but also the prop- erty, funds, and money of any constituent parish, mission, congregation, or society. The limitation in section five hundred and ninety-fiYe shall not apply to corporations formed under this section when the land is held or used for churches, hospi- tals, schools, colleges, asylums, parsonages, or cemetery purposes. [New section. Approved :March 11. 1887: Stats. 1887. p. 104. In effect immediately.] TITLE XIII. CEMETERY CORPORATIONS. § 608. How much land may be held, and how disposed of. § 609. Who are members eligible to vote and hold office. § 610. May hold personal property, to what amount. How disposed of. § 611. May issue bonds to pay for grounds. Proceeds of sales, how disposed of. § 612. May take and hold property or use income thereof, how. § 613. Interments in lot, and effect thereof. Transfer of rights onlj'- made, how. § 614. Lot owners previous to purchase to be members of the corporation. § 615. May sell lands, how. § 616. May hold property. Income, how applied. § 608. Corporations organized to establish and maintain cemeteries may take, by purchase, dona- tion, or devise, laud, not exceeding three hundred and twenty acres in extent, in the county wherein their articles of incorporation are filed, or in an adjoining county, and may employ any surplus moneys in the treasury thereof for such purpose; such lands to be held and occupied exclusively as a cemetery for the burial of the dead. The 193 CEMETERY CORPORATIONS. §§ 609, 610 lands iinist be surveyed and subdivided into lots or plats, avenues, and walks, under order of the directors, and a map thereof filed in the ottice of the recorder of the county wherein the lands are situated. Thereafter, upon such terms and sub- ject to such conditions and restrictions, to be in- serted in the conveyances, as the bj^-laws or direct- ors may prescribe, the directors may sell and con- vey tlie lots or plats to purchasers. [Amendment approved March 20, 1891; Stats. 1891, p. ISO. In effect immediately.] See Stats. 1859, 281, for the origin of this title. Manner of execution of deeds by: See post. Ap- pendix, p. 703. § 609. Every person of full age who is proprie- tor of a lot or plat in the cemetery of the corpora- tion, containinix not less than two hundred square feet of land, or, if there be more than one pro- prietor of any such lot, then such of the pro- prietors as the majority of joint proprietors desig- nate, may, in person or by proxy, cast one vote at all elections had by the corporation for di- rectors or any other purpose, and is eligible to any office of the corporation. At each annual meeting or election, *he directors must malce a report to the proprietors of all their doings, and of the management and condition of the property and concerns of the corporation. § 610. Such corporations may hold personal property to an amount not exceeding five thou- sand dollars, in addition to the surplus remaining from the sales of lots or plats after the payments required in the succeeding section. Such surplus I must be disposed of in the improvement, embel- ilishment, and ])reservation of the cemetery, and I .'ving incidental expenses of the corporation, and in no other manner, st.qts. 1804, 12, sec. 1. Civ. Code. -17. §§ 611-613 CEMETERY CORPORATIONS. 194 § 611. Such corporations may issue their bonds, bearing interest not exceeding twelve per cent, per annum, for the purchase of lands for their cemeteries, payable out of the proceeds of the cem- etery, and not otherwise. Sixty per cent, of the proceeds of sales of lots, plats, and graves must be applied at least every three months to the pay- ment of the bonds and interest. Such corporations may also agree with the person or persons from whom cemetery lands shall be purchased, to pay for such lands, as the purchase price thereof, any specified share or portion, not exceeding one-half, of the proceeds of all sales of lots or plats made from such lands: such payment to be made at such intervals as may be agreed upon. In all cases where cemetery lands shall be purchased and agreed to be paid for in the manner last provided, the prices for lots or plats specified in the by-laws, rules, or regulations first adopted by such asso- ciation, or prescribed in the agreement between the cemetery and the person or persons from whom the cemetery lands were purchased, shall not be changed without the written consent of a majority in interest of the persons from whom such lands were purchased, their heirs, represent- atives, or assigns. [Amendment approved April 16. 1880; Amendments 1880, 12. In effect April 16, 1880.] § 612. Cemetery corporations may talie and hold any property bequeathed or given them on trust, or the lots, plats, or graves thereon, for the specific purpose of embellishing or improving the grounds, avenues, or superstructures of their cem- eteries, to use the income thereof, for the erection, preservation, or repair of monuments therein, or for any other purpose or design consistent with the objects of the corporation. § 613. Whenever an interment is made in any 195 CEMETERY CORPORATIONS. §§ C14, 615 lot or plat transferred to individual owners by the corporation, the same tliereby becomes forever inalienable, and descends in regular line of succes- sion to the heirs at law of the owner. When there are several owners of interests in such lot or plat, one or more may acquire by purchase the interest of others interested in the fee simple title thereof, but no one not an owner acquires interest or right of burial therein by purchase; nor must any one be buried in any such lot or plat not at the time owning an interest therein, or who is not a rela- tive of such owner, or of his wife, except by consent of all jointly interested; provided, how- ever, that when all the bodies buried in any such lot shall have been removed therefrom, with the consent of the owners of such lot, it shall be law- ful for the then owners of such lot to sell and transfer the same by deed; and any such sale and transfer heretofore made is hereby declared to be valid and effectual to transfer the title to the pur- chaser, any law to the contrary thereof notwith- standing. [Amendment approved February 10, 1885; Amendments 1885, 1. In eftect February 10, 1885.] § 614. When grounds purchased or otherwise acquired for cemetery purposes have been pre- viously- used as a burial ground, those who are lot owners at the time of the purchase continue to own the same, and are members of the corpora- tion, with all the privileges a purchase of a lot from the corporation confers. § 615. Cemetery corporations may sell lands held by them upon obtaining an order for that pur- pose from the Superior Court of the county where the lands are situated. Before mailing the order, proof must be made to the satisfaction of the court that notice of the application for leave to sell has been given by publication in such manner and for § 616 CEMETERY CORPORATIONS. 196 such time as tbe court has dh-ected, and that the lauds are not required for and are not in use for burial purposes, and that it is for the interest of the corporation tliat such lands be sold. The application must be made by petition, and any member of the corporation may oppose the grant- ing- of the order by affidavit or otherwise. [New section approved March 4, 1889; Stats. 1889, p. 61. In effect immediately.] § 616. Any corporation organized to establish and maintain, or to improve, a cemetery, may take and hold any property bequeathed, granted, or given to it upon trust, to apply the proceeds or income thereof to any or all of the following pur- poses: To the improvement or embellishment of such cemetery, or of any lot therein; or to the erection, renewal, repair, or preservation of any monument, fence, or other structure in such cem- etery; or to the planting or cultivation of trees, shrubs, or plants in or around such cemetery, or any lot therein; or to the improving, ornamenting, or embellishing of such cemetery, or any lot there- in, in any other mode or manner not inconsistent with the purposes for which said cemetery was es- tablished or is being maintained. Such property, and the proceeds or income thereof, shall be in- vested and re-invested by such corporation, in the bonds of the United States, or of this State, or of any municipality of this State, or in mortgages of real estate, if such investment be not repug- nant to the terms of the bequest, grant, or gift. [New section approved March 26. 1895; Stats. 1895,^ p. 162. In effect immediately.] VJl AGRICULTURAL FAIR CORPORATIONS. §§ 620-622 titlp: XIV. AGRICULTURAL FAIR CORPORATIONS. S 620. May acquire and hold rei»l estate, how much. § 621. Shall not contract deb''s or liabilities exceeding amount in treasury. § 622. Not for profit. May fix fee, &c., for membership. § 620. Aj^rieultural Fair Corporations may pur- chase, bold, or lease any quantity of land, not ex- ceeding in the ag^^regate one hundred and sixty acres, with such buildings and improvements as may be erected thereon, and may sell, lease, or otherwise dispose of the same, at pleasure. This real estate must be held for the purpose of erect- ing buildings and other improvements thereon, to promote and encourage agriculture, horticulture, mechanics, manufactures, stoclx raising, and gen- eral domestic industry. See Stats. 1859, 104, for the origin of this title. § 621. Such corporation must not contract any debts or liabilities in excess of the amount of money in the treasury at the time of contract, ex- cept for the purchase of real property, for which they may create a debt not exceeding five thou- sand dollars, secured by mortgage on the prop- erty of the corporation. The directors who vote therefor are personally liable for any debt con- tracted or incurred in violation of this section. § 622. Agricultural Fair Corporations are not conducted for profit, and have no capital stocli or Income other tlian tliat derived from charges to ex- hibitors and fees for membership, wliich charges, together with the term of membership and mode of ac2-Taxation of. § 633. Corporations may be formed subject to the provisions of this title, and with all the rights, duties, and powers herein specified. Such corpora- tions shall be known as mutual building and loan associations, and the words "mutual building and loan association" shall form part of the name of every such corporation. The articles of incorpo- ration, in setting forth the purposes for which the! corporation is formed, shall state, that it is formedj to encourage industry, frugality, home buildinj and savings among the stockholders; the accumu- lation of savings: the loaning to its stockholders of the funds so accumulated, with the profits and| earnings; and the repayment to each stockholdply to all such corporations, wheth- er or^'auized and doin^ business before or after the passage of this act: Acts of 1891, p. 252, sec. 1. Act creatinir board of commissioners of building and loan associations: See post, Ap*t)endix, p. 727. Annuity or endowment insurance: See post. Ap- pendix, p. 777. § 634, The capital stock of such corporations shall be paid in by the stoclvholders in regular, equal, periodical payments, at such times and in such amounts as shall be provided in the by-laws. Such periodical payments shall be called dues: and at or before a time to be stated in the by- laws, each stockholder shall pay to the corpora- tion, upon each share of stock held by him, such an amount of dues as the by-laws shall provide; and the payment of dues shall so continue on each share of stock issued till it reaches its matured , vnlue, or is withdrawn, canceled, or forfeited. The I capital stock shall consist of such accumulated ' dues, together with the earnings and profits of the 1 corporation, and shall in no case exceed two mil- lion dollars, except as to corporations now exist- 1 ing. It shall be divided into shares of matured or ! par value of one hundred dollars, or two hundred t dollars eacli, as shall be provided in the articles I of incorporation and fixed by the by-laws. Cer- • tificates of stock shall be issued to each stockhold- ■• er on the first payment of dues by him. The i shares shall be issued in yearly, half-yearly, or I quarterly series, except in corporations now exist- 1 Ing, in suoh amounts in each series, and at such , times, as shall be determined ]iy the board of di- • 'tors. No share of a prior series shall be is- § 635 LAND AND BUILDING CORPORATIONS. 202 sued after the issuing of sliares in a new series. Shares which have not been pledged as a security for the repayments of a loan shall be called free shares. Shares that have been so pledged shall be called pledged shares. All stock matured and surrendered or canceled in any series shall be- come the property of the corporation, and may be issued in any subsequent series. Payment of dues on shares of stock in each series shall commence from the tim^ that shares began to be issued in such series. Any such corporation shall have power by its by-laws to impose and collect a fine from each stockholder not exceeding ten per cent of the defaulted amount, for every neglect or re- fusal to make his payments of dues, or premium, or interest, when due, and to impose and collect a like fine successively on every regular pay-day during such default. Every such corporation here- after formed shall also have power to charge an entrance fee upon each share of stock issued, not exceeding ten cents on each share, and may also .charge a transfer fee not exceeding ten cents on each share, all of which shall be paid into the treasury and accounted for as all other funds of the association: provided, that building and loan associations heretofore incorporated may continue to charge and dispose of such entrance and trans- fer fees as are prescribed by the by-laws of such corporation. Payment of dues or interest may be made in advance, but no association shall allow interest on such advance payments at a greater rate than six per cent per annum, nor for a longer period than one year. [New section added March 81, 1891: Stats. ^1891, p. 253. In effect immedi- ately.] § 635. The directors may, at their discretion, under the regulations prescribed in their by-laws, retire the free shares of any series of stock, at any time after four years from the date of their 203 LAND AND BUILDING CORPORATIONS. § 636 issue, by euforcing the withdrawal of the same; but wheuover there shall remain iu aiiy series, at the expiratiou oi live years after the date of its issue, an excess above one hundred free shares of the par value of two hundred dollars each, or two hundred free shares of the par value of one hundred dollars each, then it shall be the duty of the directors to retire annually twenty-live per centum of such excess existing at said expiration of live years after the date of its issue, so that no more than one hundred free shares shall remain iu such series at the expiration of nine years from the date of its issue; provided, that no more than one half the monthly receipts be used for that pur- pose; and thereafter the directors may, in their discretion, retire such other free shares as they consider to the best interest of the association to retire; provided, that whenever, under the provi- sions of this section, the Avithdrawal of shares is to be enforced, the shares to be retired shall be determined by lot, drawn from all free shares in the series, as shall be regulated by the by-laws, and the holders thereof shall be paid the amount actually paid in, and the full amount of earnings , at the date of last apportionment of profits. [New I section added March 31, 1891; Stats. 1891, p. 254. In effect immediately.] j § 636. When the stock in any series shall have •reached its matured value, payment of dues there- Jon shall cease, and all of the stockholders in such ! series who have borrowed from the association Ishall be entitled to have their securities returned to them, and a satisfaction of the mortgages made by them to the association; and the holders of (free shares of stock in such series shall be paid jout of the funds of the association the matured [value thereof, with such rate of interest as shall |be determined by the by-laws, from the time the Iboard of directors shall declare such shares to §§ 637. 638 LAND AND BUILDING CORPORATIONS. 204 have matured until paid; but at no time shall more than one-third of the receipts of the association be applicable to the payment of matured shares, without the consent of the board of directors. The order of the payment of the matured shares shall be determined by the by-laws. [New section added March 31, 1S91; Stats. 1891, p. 254. In ef- fect immediately.] § 637. The moneys in the hands of the treas- urer, and such sums as may be borrowed by the corporation for the purpose, shall be loaned out in open meeting to the member who shall bid the highest premium, or may be loaned at such pre- mium as may be fixed from time to time, by the board of directors; and the premium may be de- ducted from the amount of the loan, or such pro- portion may be deducted as the by-laws shall pro- vide, and in that case the balance of said pre- mium shall be payable in such installments as the by-laws shall determine; provided, however, thai where the premium is payable in installments, the number of installments into which the same is divided shall be uniformly applicable to all loans made by the corporation, and shall be payable at the times and in the manner as provided in the by-laws; and provided further, that in no case shall the amount loaned exceed the matured value of the shares pledged to secure the loan. [New section added March 81, 1891; Stats. 1891, p. 254. In effect immediately.] § 638. The rate of interest on all loans may be fixed by the by-laws, but. in case the by-laws fail to fix the rate, then it shall be fixed, from time to time, by the board of directors. For every loan made, a note or obligation, secured by a first mortgage or deed of trust upon unincumbered real estate, shall be given, accompanied by a transfer and pledge to the association of the 205 LAND AND BUILDING CORPORATIONS. § 639 shares borrowed upon, as collateral security for the repayment of the loan; or, in lieu of the mort- gage or deed of trust, there may be pledged and transferred to the association, for tlie payment of the loan, free shares, the withdrawal value of which, under the by-laws, at the time of such borrowing, shall exceed the amount borrowed and interest thereon for six months. At the discre- tion of the board of directors, a borrower may re- pay a loan, and all arrears of interest and tines thereon, at any time upon the surrender of the shares pledged for the loan. L Amendment ap- proved February 25, ISi)?. Chapter XXXllI.] The original of this section was a new section adopted in IbUl; JStats IbOl, p. 2oo. § 639. Whenever any member shall be six muiiLhii in arrears in the payment of his dues upon free shares, the secretary shall give him notice thereof, in writing, and a statement of his arrearages, hy mailing the same to him at the last postotiice address given by him to the association, and if he shall not pay the same within two months thereafter, the board of directors may, ai I their option, declare his shares forfeited; and at ithe time of such forfeiture, the withdrawal value thereof shall be determined and stated, and the ! defaulting member shall be entitled to withdraw the same without interest, upon such notice as shall be required of a withdrawing shareholder. Whenever a borrowing member shall be six months in arrears in the payment of his dues, or interest, or premium, the whole loan shall become due at the option of the board of directors; and they may proceed to enforce collection upon the securities held by the association. The with- drawal value, at the time of the commencement nf the notion, of all shares pledged as collateral §ecurity for the loan, shall be applied to the pay- Civ. Code.— 18. §§ 640-642 I^AND AND BUILDING CORPORATIONS. 206 ment of the loan, and said shares, from that time, shall be deemed surrendered to the association. [New section added March 31, 1891; Stats. 1891, p. 255. In effect immediately.] In the same statute the original section was re- pealed, Stats. 1891, p. 252, sec. 1, with the follow- ing proviso: Provided, however, that so far as the said sections relate to and govern building and loan associations heretofore incorporated and do- ing business under the Civil Code, the said sec- tions shall continue in full force and validity. This title is principally drawn from Stats. 1861, 567. § 640. Any such association may purchase at any sale, public or private, any real es- tate upon which it may have a mortgage, judgment, lien, or other encumbrance, or in which it may have an interest; and may sell, con- vey, lease, or mortgage the same, at pleasure, to any person or persons. [New section added March 31, 1891; Stats. 1891, p. 255. In effect immedi- ately.] The original section was repealed in the same act: Stats. 1891, p. 252, sec, 1; see proviso to sec. 639. § 641. Any association organized in pursuance of the provisions of this act may borrow money for the purpose of making loans or paying with- drawals. [New section added March 31, 1891; Stats. 1891, p. 255. In effect immediately.] The original section was repealed: Stats. 1891, p. 252; see proviso to sec. 639. § 642. Profits and losses shall be apportioned at least annually, and shall be apportioned to all the shares in each series outstanding at the time of such apportionment, according to the actual value of such shares as distinguished from their 207 LAND AND BUILDING CORPORATIONS. §§ 643. 644 withdrawal value. [New section added March 31, 1891; Stats. 1891, p. 255. In effect immediately.] The original section was repealed by the same act that added the above section: Stats. 1891, p. 252, sec. 1; see proviso to sec. 639. § 643. Any person of full age and sound mind may become a member of the asso- ciation by talking one or more shares therein, and subscribing to the by-laws, and annexing to his signature his postoffice address. A minor may hold shares in the name of the parent, guardian, or next friend as trustee. The shares of stocli in any such corporation held by any person, to the value of one thousand dollars, shall be exempt from execution. [New section added March 31, 1891; Stats. 1891, p. 25G. In effect immediately.] The original section was repealed by the statute adding the above section: Stats. 1891, p. 252; see proviso under sec. 639. § 644. Every association organized under the provisions of this act, and every other as- sociation doing a lilce business, shall an- nually make a full report, in writing, of the affairs and condition of such corporation, within thirty days after its annual meeting, to the bank com- missioners of this State. Such report shall be verified by the oath of the officers making the same, and a copy of the same shall be delivered to every stockholder, from the office of the corpora- tion, who may call for such report. Every association shall make any further reports which the said commissioners may require, and in such form and as to such mat- ters relating to the condition and conduct- ing of the business of the association as such commissioners may designate; and said bank com- missioners may at any time examine into the af- fairs of any and every of said associations. Any § 645 LAND AND BUILDING CORPORATIONS. 208 willful false sweariug in making and verifying said reports shall be deemed perjury. Any such association which shall fail to furnish the bank commissioners any such report required, within thirty days after demand, shall forfeit the sum of ten dollars per day for every day such report shall be delayed or withheld, which may be recovered in an action brought by the attorney general in the name of the people of this State, and all moneys so recovered shall be paid to the Treas- urer of the State, who shall pay the same into the "bank commissioners' fund." The State Bank Commissioners shall annually publish a full re- port of the condition of all associations formed under the provisions of this title, and every other association doing a like business in this State, in the same manner as they are now required to do in reference to savings banks. [New section added March 31, 1891; Stats. 1891, p. 256. In effect im- mediately.] The original section was repealed by the act adding the above section: Stats. 1891, p. 252, sec. 1: see proviso under sec. 639. See also Stats. 1867-8, 539, sec. 1. § 645. No mutual building and loan association, or company, association, or corporation organized under the laws of any other State or territory, to carry on a business of a like character to that authorized by this title, shall be allowed to do busi- iness or to sell their stock in this State without first hnving deposited with the State Controller or Secretary of State the sum of fifty thousand dollars in money, or United States or municipal bonds of this State, or in mortgages upon real estate located within this State, as a guaranty fund for the pro- tection and indemnity of residents of the state of California with whom such companies, associa- tions, or corporations shall do business: the fund so deposited to be paid by the custodian thereof 209 LAND AND BUILDING CORPORATIONS. 5 646 to the residents of Califoruia only, and not then until proof of claim by final jud;,auent has been tiled with the custodian of said fund aj,'ainst such foreign company, association, or corporation. Any of the securities so deposited may be withdrawn at any time upon others, herein provided for, of like amount being substituted in lieu thereof. Any person or persons who shall be found in this State as agent, or in any other capacity, representing such foreign company, association, or corporation which has not complied with the provisions of this section shall be deemed guilty of a misde- meanor, and upon conviction shall be punished by a line not exceeding one thousand dollars or by imprisonment in the county jail not exceeding twelve months, or by both such fine and imprison- ment. [New section added March 31, 1801; Stats. 1891, p. 250. In effect immediately.] The original section was repealed by the statute adding the above section: Stats. 1891, p. 252, sec. 1; see proviso, note to sec. 039. § 646. Any building and loan association, now existing and heretofore incorporated, desiring to continue its existence tinder the provisions of this title, may do so if the holders of a majority of the stock, at their regular annual meeting, or at a spe- cial meeting of the stockholders called for that purpose, shall so elect. The notice of the meeting, whether regular or special, shall state as one of the objects of the meeting to vote on the question whether the corporation shall continue its exist- ence imder the provisions of this title: and the notice of meeting shall be published as required by section three hundred and one: and, in addi- tion thereto a similar notice shnll be mailed to each stockholder at his postoflice address. Within thirty days after the holders of a majority of the stock at any such meeting have voted to continue the existence of t'^e corporation under the provis- §§ 647, 648 LAND AND BUILDING CORPORATIONS. 210 ioiis of tills title, the secretary ol tiie corporation shall, under oatli, make and subscribe, as such secretary, a certiticate, in writing, stating the call- ing of such meeting, the fact that the holders of a majority of the stock voted to continue the ex- istence of the corporation under this title, which shall be filed in the othce of the county clerk in which its original articles of incorporation have been filed, and shall file in the ofiice of the Secre- tary of State a certified copy thereof, according to the provisions of section two hundred and ninety- six; and the Secretary of State shall issue his usual certificate, as provided in said section. Thereupon, such corporation shall be subject to all the pro- visions of this title, as though originally incorpo- rated under the provisions hereof, except that no change in its name or amount of capital stock shall be made; but the name shall be the same as con- tained in the original articles. [New section added March 31, 1891; Stats. 1891, p. 257. In effect im- mediately.] Original § 046 was repealed by act approved March 30, 1874, in effect July 1. 1874. § 647. All corporations doing the business of building and loan associations in this State shall be subject to the provisions of this title relating to the bank commissioners. [New section added March 31, 1891; Stats. 1891, p. 257. In effect im- mediately.] The original section was repealed by the statute adding the above section: Stats. 1891, p. 252, sec. 1; see proviso, note to sec. (539. § 648. The name "building and loan associa- tion," as used in this act, shall include all corpo- rations, societies, or organizations or associations doing a savings and loan or investment business on the building-society plan, viz.: loaning its funds 2U COLLEGES AND SEMINARIES. §§ 648^, 649 to its members or its shareholders, and whether issuing certificates of stock which mature at a time tixed in advance or not. [New section added March 31, 1891; Stats. 1801, p. 257. In effect im- mediately.] § 648',-. The provisions of an act entitled "An act imposing a tax on the issue of certificates of stoclv corporations," approved April first, eighteen hundred and seventy-eight, shall not be deemed and held to be applicable to any certificates is- sued to and transferred by the members or stock- holders of any association organized under or gov- erned by this act. [New section added March 31, 1891; Stats. 1891, p. 257. In effect immediately.] TITLE XVII. COLLEGES AND SEMINARIES OF LEARNING. § 649. Articles of incorporation. § 650. Board of trustees. § 651. Existing institutions. § 649. Any number of persons who may desire to establish a college or seminary of learning may incorporate themselves as provided in this part, lexcept that in lieu of the requirements of section Itwo hundred and ninety, the articles of incorpora- ition shall contain: J 1. The name of the corporation; I 2. The purpose for which it is organized; \ 3. The place whore the college or seminary is ito be conducted; 4. The number of its trustees, which shall not De less thnn five nor more than fifteen, and the lames and residences of the trustees. The terra or which the trust(>es named and their successors ire to hold ottir-o luny also be stated. If it is de- ired that the trustees, or any portion of them. § 65U COLLEGES AND SEMINARIES. 212 shall belong to any organization, society, or church, such limitation shall be stated; 5. The names of those who have subscribed money or property to assist in founding the sem- inary or college, together with the amount of money and description of property subscribed. [Approved March 14, 1885; Stats. 1885, 133. In effect March 14, 1885.] § 650. Unless otherwise provided in the articles of incorporation the board of trustees shall, as soon as organized, so classify themselves that one- fifth of their number shall go out of office every year, and thereafter the trustees shall hold office for five years. A majority of the trustees shall constitute a quorum for the transaction of busi- ness, and the office of the corporation shall be at the college or seminary. The trustees shall have power: 1. To elect, by ballot, annually one of their number as president of the board; 2. Upon the death, removal out of the State, or other vacancy in the office, or expiration of the term of any trustee, to elect another in his place; provided, that where there are graduates of the institution, such graduates may, under such rules as the board shall prescribe, nominate persons to fill vacancies in the board of trustees. Such nomi- nations shall be considered by the board, but it may reject any or all such nominations, and of its own motion appoint others; 3. To elect additional trustees; provided, the whole number elected shall never exceed fifteen at any one time; 4. To declare vacant the seat of any trustee who shall absent himself from eight succeeding meetings of the board; 5. To receive and hold, by purchase, gift, de- vise, bequest, or grant, real or personal property 213 COLLEGES AND SEMINARIES. § 651 for educatioual purposes couuected with the cor- poration, or for the benefit of the institution; G. To- sell, mortgage, lease, and otherwise use and dispose of the property of the corporation in such manner as they shall deem most conducive to the prosperity of the corporation; 7. To direct and prescribe the course of study and discipline to be observed in the college or seminary; 8. To appoint a president of the college or sem- inary, who shall hold his office during the pleas- ure of the trustees; 9. To appoint such professors, tutors, and other officers as they shall deem necessary, who shall hold their offices during the pleasure of the trus- tees; ^(^. To grant such literary honors as are usually granted by any university, college, or seminary of learning in the United States, and in testimony thereof to give suitable diplomas under their seal, and the signature of such officers of the corpora- tion and the institution as they shall deem expedi- ent; 11. To fix salaries of the president, professors, and other officers and employees of the college or seminary; 12. To make all by-laws and ordinances neces- sary and proper to carry into effect the preceding powers and necessary to advance the interests of the college or seminary; provided, that no by-laws or ordinance shall conflict with the Constitution or laws of tlie T'nited States, or of this State. [Approved March 14, 1885; Stats. 1885, 133. In effect March 14. 1885.] § 651. Any educational corporation, or body 'claiming to be such, now existing, may, by a un- lanimous vote of those of its trustees present at .•• ispecinl mooting called for that purpose, and of jwhich duo notice shall he given to onch trustee. ponvoy nil its property, rights, and franchises to § 652 CONSOLIDATION OF COLLEGES, ETC. 2V. 2L corporation organized under this title. Tlie fact that due notice of the meeting was given to each trustee shall be conclusively proven by the entries in the minutes of the corporation or body making the conveyance. Said minutes shall be certified to be correct by the president and secretary. [Ap- proved March 14, 1885; Stats. 1885, 133. In ef- fect March 14, 1885.] TITLE XVIII. CONSOLIDATION OF COLLEGES AND INSTITUTIONS OF HIGHER EDUCATION. (New title added February 23, 1893, Stats. 1893, p. 4. In ef- fect immediately. § 652. Societies and organizations authorized to consolidate. § 653. Transfer of property. § 652. Whenever any benevolent, religious, or fraternal organization or society, having a grand lodge, assembly, conference, or other leg- islative or representative head in the State of Cal- ifornia, having two or more colleges or institutions of higher education under its patronage, shall, for the purpose of greater efficiency and simplicity in the administration of its educational interests, de- sire to consolidate such institutions under one management, such organization or society shall be and is authorized to consolidate such institutions under one management by complying with the fol- lowing provisions:— First. Such grand lodge, assembly, conference, or other legislative or representative head having authorized a consolidation of its institutions, a new corporation shall be formed. The board of trustees of the new corporation shall at first con- sist of the persons constituting the boards of trus- tees of the several institutions, respectively, thus consolidated, and others: provided, the number of 215 CONSOLIDATION OF COLLEGES. ETC. § 663 trustees shall not exceed forty-five. The board of trustees shall be so classified that the term of office of oue-third of its number shall expire each year; the successors of such trustees, as their terms expire, shall be elected by such grand lodge, assembly, conference, or other legislative or rep- resentative head at its annual meeting. •Second. The said board of trustees shall report annually to the grand lodge, assembly, conference, or other legislative or representative head control- ling it, the condition of affairs of such corpora- tion and the amount and manner of its receipts and expenditures. § 653. The several boards of trustees of the in- stitutions thus consolidated shall be and are here- by authorized and directed to transfer all property, real and personal, held by them, to the new corpo- ration, as herein constituted, together with all powers, privileges, and authority conferred upon or enjoyed by them under their respective charters or acts of incorporation. The new corporation re- ceiving such property shall assume all indebted- ness and liabilities of such institutions as are thus consolidated, but shall not transfer such property from one location to another, except by an affirma- tive vote of not less than three-fourths of the said ^ board of trustees of the new corporation, nor di- I vert specific grants, donations, or bequests from the purposes for which such grants, donations, or ! beciuests were made. Tliat after the boards of 1 trustees have conveyed the property, real and per- ! sonal. of the various institutions to the new corpo- i ration, as hereinabove i)rovided. and the same lias I been accepted by the said new corporation, then i the franchises held by the corporations thus con- 1 solidating shall cease, and the said corporations , shall be thereby dissolved. [Amendment ap- ( proved March 0, 189."); Slats. 1895, p. 40. In effect \ In sixty days.] DIVISION SECOND. Part I. Property in General, §§ 654- 749. II. Real or Immovable Property, §§ 755-940. III. Personal or Movable Property, §§ 953-994. lY. Acquisition of Property, §§ 1000-1422. civ. Code.— 19. PART 1. PROPERTY IN GENERAL. Title I. Nature of Property, §§ 654-6G3. II. Ownership, §§ G69-742. III. General Definitions, §§ 748-749. TITLE I. NATURE OF PROPERTY. § 654. Property, what. § 655. In what property may exist. § 656. Wild animals. § 657. Real and personal. § 658. Real property. § 659. Land. § 660. Fixtures. § 631. Fixtures attached to mines. § 662. Appurtenances. § 663. Personal property. § 654. The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property. As to the meaning of "property" for the purposes of taxation, see Polit. Code, sec. 3G17. Real property: See sec. 658. Personal property: See sees. G63, 953, et seq. Franchises as property: See sec. 388, ante. § 655. There may be ownership of all inani- mate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill §§ 656-660 NATURE OF PROPERTY. 220 as the composition of an author, the goodwill of a business, trademarlis and signs, and of rights created or granted by statute. Counterfeiting a trademark, a misdemeanor; Penal Code. sec. 350. Products of the mind: See sees. 980, post, et seq. Trademarks: See sec. 991, post. Goodwill: See sec. 993, post. Title deeds: See sec. 994, post. Domestic animals, larceny of: See Penal Code, sec. 491. § 656. Animals wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in the possession, or disabled and immediately pursued. § 657. Property is either: 1. Real or immovable; or, 2. Personal or movable. § 658. Real or immovable property consists of: 1. Land; 2. That which is affixed to land; 3. That which is incidental or appurtenant to land; 4. That which is immovable by law. Land defined: See sec. 659, infra. Fixtures: See sec. 660, infra, et seq. Appurtenances: See sec. 662. § 659. Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance. § 660. A thing is deemed to be affixed to land when it is attached to it by roots as in the case of trees, vines, or shrubs, or imbedded in it, as in the case of walls: or permanently resting upon it, as 221 OWNERSHIP. §§ 631-663 in the case of buildings; or permanently attached to what is thus permanent, as by means of ce- ment, plaster, nails, bolts, or screws. § 661. Sluice-boxes, flumes, hose, pipes, rail- way tracks, cars, blacksmith shops, mills, and all other machinery or tools used in working or de- veloping a mine, are to be deemed affixed to the mine. § 662. A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit; as in the case of a way. or watercourse, or of a passage for light, air, or heat from or across the land of another. Easements and servitudes: See sees. 801 et seq., Dost. § 663. Every kind of property that is not real is personal. Personal property: See ante, sec. 14, subd. 3; and Polit. Code. sec. 3617. TITLE II. OWNERSHIP. Chapter I. Owners, §§ 6G9-G72. II. Modifications of Ownership, §§ 678- 726. III. Rights of Owners, §§ 732-733. IV. Termination of Ownership, §§ 739-742. CHAI'TER I. ' OWNERS. I § 669. Owner. : § 670. Property of the state. § 671. Who may own property. ; § 672. Aliens Inheriting must claim within five years. §§ 6(39-672 OWNERSHIP. 222 § 669. All property has an owner, whether that owner is the State, and the property public, or tlie owner an individual, and the property private. The State may also hold property, as a private proprietor. § 670. The State is the owner of all land below tidewater, and below ordinary high-water mark, bordering upon tide-water within the State; of all land below the water of a navigable lalie or stream; of all property lawfully appropriated by it to its own use; of all property dedicated to the State, and all property of which there is no other owner. [Amendment approved March 30, 1874; Amendments 1873-4, p. 217. In effect July 1, 1874.] Property of the State. Polit. Code, sees. 40-44. Public lands: See Polit. Code, sees. 3395 et seq. Escheat: See post, sees. 1405, 1406. § 671. Any person, whether citizen or alien, may take hold, and dispose of property, real or personal, within this State. [Amendment ap- proved March 30, 1874; Amendments 1873-4, p. 217. In effect July 1, 1874.] Alien's right to inherit property: See sees. 1404, post, et sea. § 672. If a nonresident alien takes by succes- sion, he must appear and claim the property with- in five years from the time of succession, or be barred. The property in such case is disposed of as provided in Title VIII., Part III., Code of Civil Procedure. [Sees. 1269-1272.] 223 OWNERSHIP. §§ 678, 679 CHAPTER II. MODIFICATIONS OF OWNERSHIP. Article I. Interests In Property. §§ 678-703. II. Conditions of Ownership, §§ 707-711. III. Restraints upon Alienation, §§ 715-718. IV. Accumulations, §§ 722-726. ARTICLE I. INTERESTS IN PROPERTY. § 678. Ownership, absolute or qualified. § 679. When absolute. g 680. When qualified. § 681. Several ownership, what. § 682. Ownership of several persons. § 683. Joint interest, what. § 684. Partnership interest, what. § 685. Interest in common, what. § 686. What interests are in common. § 687. Community property. § 688. Interests as to time. § 689. Present interest, what. § 690. Future interest, what. § 691. Perpetual interest, what. § 692. Limited interest, what. § 693. Kinds of future interests. § 694. Vested interests. § 695. Contingent interests. § 096. Two or more future interests. § 697. Certain future interests not to be void. § 698. Posthumous children. § 699. Qualities of expectant estates. § 700. Same. § 701. Interests in real property. § 702. Same. § 703. What future interests are recognized. § 678. The ownership of property is either: 1. Absolute; or, 2. Qualified. § 679. The ownership of property is absolute when a single person has the absolute dominion §§ 680-685 OWNERSHIP. 224 over it, and may use it or dispose of it according to his pleasure, subject only to general laws. § 680. The ownership of property is qualified: 1. When it is shared with one or more persons; 2. When the time of enjoyment is deferred or limited; 3. When the use is restricted. § 681. The ownership of property by a single person is designated as a sole or several owner- ship. § 682. The ownership of property by several persons is either: 1. Of joint interests; 2. Of partnership interests; 3. Of interests in common; 4. Of community interest of husband and wife. § 683. A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. Section 086, infra: This section is founded upon Stats. 1855, 171, sec. 1. § 684. A partnership interest is one owned by several persons in partnership, for partnership purposes. Partnership: See post, sec. 2395 et seq. § 685. An interest in common is one owned by several persons, not in joint ownership or part- nership. Tenancy in common: See sees. 683, G86. Partition: See Code Civ. Proc, sees. 752 et seq. 225 OWNERSHIP. §§ 686-692 Husband and wife as tenants in common: See sec. IGl. Devise or legacy to two or more malies tliem owners in common: See sec. 1350. § 686. Every interest created in favor of sev- eral 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 sec- tion 083, or unless acquired as community prop- erty. § 687. Community property is property ac- quired by husband and wife, or either, during marriage, when not acquired as the separate prop- erty of either. Community property: See sec. 1G4, ante. § 688. In respect to the time of enjoyment, an interest in property is either: 1. Present or future; and, 2. Perpetual or limited. § 689. A present Interest entitles the owner to the immediate possession of the property. § 690. A future interest entitles the owner to the possession of the property only at a future pe- riod. Accumulations as future interests: See sees. 722 et seq., and 733. Conditions upon the enjoyment of estates: See sees. 707 et seq. Terminating future interests: See sees. 739 et seq. § 691. A perpetual interest has a duration equal to that of the property. § 692. A limited interest has a duration less than tlmt of the property. §§ 693-701 OWNERSHIP. 226 § 693. A future interest is either: 1. Vested; or, 2. Contingent. § 694. A future interest is vested when there is a person in being- who would have a right, de- feasible or indefeasible, to the immediate posses- sion of the property, upon the ceasing of the inter- mediate or precedent interest. § 695. A future interest is contingent, whilst the person in whom, or the event upon which, it is limited to take effect remains uncertain. § 696. Two or more future interests may be created to tal^e effect in the alternative, so that if the first in order fails to vest, the next in suc- cession shall be substituted for it, and take effect accordingly. § 697. A future interest is not void merely be- cause of the improbability of the contingency on which it is limited to take effect. § 698. When a future interest is limited to suc- cessors, heirs, issue, or children, posthumous chil- dren are entitled to take in the same manner as if living at the death of their parent. Future interests defeated by birth of posthu- mous child: See sec. 739, post. § 699. Future interests pass by succession, will, and transfer, in the same manner as present in- terests. § 700. A mere possibility, such as the expect- ancy of an heir apparent, is not to be deemed an interest of any kind. § 701. In respect to real or immovable prop- erty, the interests mentioned in this chapter are 227 OWNERSHIP. §§ 702-709 denominated estates and are specially named and classified in Part II. of this division. § 702. Tlie names and classification of interests in real property have only such application to in- terests in personal property as is in this division of the Code expressly provided. § 703. No future interest in property is recoj?- nized by the law, except such as is defined in this division of the Code. ARTICLE II. CONDITIONS OP OWNERSHIP. § 707. Fixing the time of enjoyment. § 708. Conditions. § 709. Certain conditions precedent void. § 710. Conditions restraining marriage void. § 711. Conditions restraining alienation void. § 707. The time when the enjoyment of prop- erty is to begin or end may be determined by com- putation, or be made to depend on events. In the latter case, the enjoyment is said to be upon con- dition. Conditional legacies: See sees. 1345, post, et seq. § 708. Conditions are precedent or subsequent. The former fix the beginning, the latter the end- ing, of the right. Conditional obligations: See sees. 1434-1442. post. Conditional limitation.— Remainder operating to abridge precedent estate: Sec. 778. post. § 709. If a condition precedent requires the performance of an act wrong of itself, the instru- ment containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otlierwise unlaw- §§ 710-716 OWNERSHIP. 228 ful, the instrument takes effect and the condition is void. § 710. Conditions imposing restraints upon marriage, except upon the marriage of a minor are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage. [Amendment ap- proved March 30, 1874; Amendments 1873-4. p. 218. In effect, July 1, 1874.] Contracts in restraint of marriage: See post, sec. 1676. § 711. Conditions restraining alienation, when repugnant to the interest created, are void. See also sees. 715, 772, post, and the title on Uses and Trusts, post, sees. 847 et seq. ARTICLE III. RESTRAINTS UPON ALIENATION. § 715. How long it may be suspended. § 716. Future interests void, whicli suspend power of alien- ation. § 717. Leases of agricultural land, for over ten years, void. § 718. Leases of city lots, for over twenty years, void. § 715. The absolute power of alienation can- not be suspended, by any limitation or condition whatever, for a longer period than during the con- tinuance of the lives of persons in being at the creation of the limitation or condition, except in the single case mentioned in section 772. See al£0 sec. 771, post. § 716. Every future interest is void in its crea- tion which, by any possibility, may suspend the absolute power of nlienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no per- >29 OWNERSHIP. §§ 717-724 sons in being by ^^ilom an absolute interest in pos- session can be conveyed. § 717. No lease or grant of land for agricul- tural purposes for a longer period than ten years, in which shall be reserved any rent or service of any Iviud, shall be valid. [Amendment approved March 2G, 1895; Stats. 1895, p. 59. In effect in sixty days.] § 718. No lease or grant of any town or city lot, for a longer period than twenty years, in which shall be reserved any rent or service of any kind, shall be valid. ARTICLE IV. ACCUMULATION. § 722. Dispositions of Income. § V23. Accumulations, when void. § 724. Accumulation of income. 8 i-o. Other directions, when void in part. § 726. Application of Income to support, &c., of minor. § 722. Dispositions of the income of property to accrue and to be received at any time subse- quent to the execution of the instrument creating such disposition, are governed by the rules pre- scribed in this title in relation to future interests. § 723. All directions for the accumulation of the income of property, except such as are allowed 'by this title, are void. ' § 724. An accumulation of the income of prop- erty, for the benefit of one or more persons, may 3e directed by any will or transfer in writing sufla- ''ient to pass the property out of which the fund is \o arise, as follows: 1. If such accumulation is directed to commence I'D the creation of the interest out of which the in- lome is to arise, it must be made for the benefit ' Civ. Code.-20. §§ 725, 726 OWNERSHIP. 230 of one or more minors then in being, and termi- nate at tlie expiration of their minority; or, 2. If such accumulation is directed to commence at any time subsequent to the creation of the in- terest out of which the income is to arise, it must commence within the time in this title permitted for the vesting of future interests, and during the minority of the beneficiaries, and terminate at the expiration of such minority. Ownership of undisposed accumulations: See se*^ 733, post. Accumulations liable for debts: See sec. 859. Restraint upon disposition of beneficiary's inter- est: See sec. 867. Bequests of income: See post, sees. 1357, subd. 3, 1366. Annuities: See same sections. § 725. If in either of the cases mentioned in the last section the direction for an accumulation is for a longer term than during the minority of the beneficiaries, the direction only, whether sep- arable or not from other provisions of the instru- ment, is void as respects the time beyond such minority. § 726. When a minor for whose benefit an ac- cumulation has been directed is destitute of other sufficient means of support and education, the proper court, upon application, may direct a suit- able sum to be applied thereto out of the fund. Maintenance of ward out of his estate: See Code Civ. Proc, sees. 1792, 1771. 231 OWNERSHIP. §5 732-740 CHAPTER III. RIGHTS OF OWNERS. § 732. Increase of property. § 733. lu certain cases who entitled to income of property. § 732. The owner of a thing also owns all its products and accessions. Accessions to real property: See sees. 1013 et seq. Accessions to personal propertj^: See sees. 1025 et sea. § 733. When, in consequence of a valid limita- tion 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 undis- posed of. and no valid direction for its accumula- tion is given, such income belongs to the persons presumptively entitled to the next eventual inter- est. CHAPTER IV. I TERMINATION OF OWNERSHIP. ;§ 739. Future interests, when defeated. § 740. Same. '5 741. Future interests, when not defeated. \\ 742. Same. ! § 739. A future interest, depending on the con- ';;lngeucy of the death of any person without suc- cessors, heirs, issue, or children, is defeated by he birth of a posthumous child of such person, i*apable of taking by succession. 1 Stats. 1855, 171, sec. 4. Posthumous children: See sec. COS. § 740. A future interest may be defeated in ny iiinnner or by any act or means which the §§ 741-749 GENERAL DEFINITIONS. 232 party creating such interest provided for or au- thorized in the creation thereof; nor is a future interest, thus liable to be defeated, to be on that ground adjudged void in its creation. § 741. No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent interest, nor by any destruction of such precedent interest by for- feiture, surrender, merger, or otherwise, except as provided by the next section, or where a forfeiture is imposed by statute as a penalty for the viola- tion thereof. See sec. 767. § 742. No future interest, valid in its creation, is defeated by the determination of the precedent interest before the happening of the contingency on which the future interest is limited to take effect; but should such contingency afterwards happen, the future interest takes effect in the same man- ner, and to the same extent, as if the precedent interest had continued to the same period. TITLE III. GENERAL DEFINITIONS. § 748. Income, what. § 749. Time of creation, what. § 748. The income of property, as the 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 per- sonal property. § 749. The delivery of the grant, where a limi- tation, condition, or future interest is created by grant, and the death of the testator, where it is created by will, is to be deemed the time of the creation of the limitation, condition, or interest, within the meaning of this part of the Code. PART 11. REAL OR IMMOVABLE PROPERTY. Title L General Provisions, § 755. II. Estates in Real Property, §§ 761-811. III. Rights and Obligations of Owners, §§ 818- 841. IV. Uses and Trusts, §§ 847-871. V. Powers, §§ 878-940. [Repealed.] TITLE I. GENERAL PROVISIONS. Section 755. Real property, how governed. § 755. Real property within this State is gov- erned by the law of this State, except where the title is in the United States. [Amendment ap- proved March 30, 1874. Amendments 1873-4, p. 218. In effect July 1, 1874.] Territorial jurisdiction of the State: See Polit. Code, sees. 33, 34. §§ 761-762 ESTATES ^N REAL PROPERTY. 234 TITLE II. ESTATES IN REAL PROPERTY. Chapter I. Estates in General, §§ 761-781. II. Termination of Estates, §§ 789-793. III. Servitudes, §§ 801-811. CHAPTER I. ESTATES IN GENERAL. § 761. Enumeration of estates. § 732. "What estate a fee simple. § 763. Conditional fees and estates tail abolished. § 764. Certain remainders valid. § 765. Freeholds. Chattels real. Chattel interests. § 766. Estates for life of a third person, when a freehold, &c. § 767. Future estates, what. § 76S. Reversions. § 769. Remainders. § 770. Limitations of chattels real. § 771. Suspension by trust. § 772. Contingent remainder in fee. § 773. Remainders, future and contingent estates, how cre- ated. § 774. Limitation of successive estates for life. § 775. Remainder upon estates for life of third person. § 776. Contingent remainder on a term of years. § 777. Remainder of estates for life. § 778. Remainder upon a contingency. § 779. Heirs of a tenant for life, when to take as pur- chasers. § 780. Construction of certain remainder. § 781. Effect of power of appointment. § 761. Estates in real property, in respect to the duration of their enjoyment, are eitlier: 1. Estates of inheritance or perpetual estates; 2. Estates for life; w 3. Estates for years; or, ' 4. Estates at will. See sec. 7G5. § 762. Every estate of inheritance is a fee, and every such estate, when not defeasible or condi- 235 ESTATES IN REAL PROPERTY. §§ 763-768 tional, is a fee simple, or an absolute fee. [Amendment approved March 30, 1874; Stats. 1873-4, p. 218. In efCect July 1, 1874.] Transferring fee, words of inheritance not es- sential: See sec. 1072, post. Devising fee, "heirs" not essential: Sec. 1329. § 763. Estates tail are abolished, and every es- tate which would be at common law adjudged to be a fee tail is a fee simple; and if no valid re- mainder is limited thereon, is a fee simple abso- lute. § 764. Where a remainder in fee is limited up- on any estate, which would by the common law be adjudged a fee tail, such remainder is valid as a contingent limitation upon a fee, and vests in possession on the death of the first talker, without issue living at the time of his death, § 765. Estates of inheritance and for life are called estates of freehold; estates for years are chattels real; and estates at will are chattel in- terests, but are not liable as such to sale on exe- cution. § 766. An estate, during the life of a third person, whetLer limited to heirs or otherwise, is a freehold. [Amendment approved March 30, 1874; Amendments 1873-4, p. 218. In effect July 1, 1874.] § 767. A future estate may be limited by the act of the party to commence in possession at a future day, either without the intervention of a precedent estate, or on the termination, by lapse of time or otherwise, of a precedent estate cre- ated at the same time. See sec. 742. § 768. A reversion is the residue of an estate It It by operation of law in the grantor or his sue- §§ 769-773 ESTATES IN REAL PROPERTY. 236 cessors, or in the successors of a testator, com- mencing in possession on the determination of a particular estate granted or devised. § 769. When a future estate, other than a re- version, is dependent on a precedent estate, it may- be called a remainder, and may be created and transferred by that name. § 770. The absolute ownership of a term of years cannot be suspended for a longer period than the absolute power of alienation can be sus- pended in respect to a fee. [Amendment, approved March 30, 1874; Amendments 1873-4, p. 218. in effect July 1, 1874.] § 771. The suspension of all power to alienate the subject of a trust, other than a power to ex- change it for other property to be held upon the same trust, or to sell it and reinvest the proceeds to be held upon the same trust, is a suspension of the power of alienation, within the meaning of section 715. § 772. A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty- one years, or upon any other contiugency by which the estate of such persons may be determined be- fore they attain majority. § 773. Subject to the rules of this title, and of Part I. of this division, a freeliold estate, as well as a chattel real, may be created to commence at a future day; an estate for life may be created in a term of years, and a remainder limited there on; a remainder of a freehold or chattel real, either contingent or vested, may be created, ex- pectant on the determination of a term of years; and a fee may be limited on a fee upon a contin- 237 ESTATES IN REAL PROPERTY. §§ 774-779 gency, which, if it should occur, must happen within the period prescribed in this title. § 774. Successive estates for life cannot be lim- ited, except to persons in being at the creation thereof, and all life estates subsequent to those of persons in being are void; and upon the death of those persons the remainder, if valid in its crea- tion, takes effect in the same manner as if no other life estate had been created. [Amendment approved March 30, 1874; Amendments 1873-4, p. 219. In effect July 1, 1874.] § 775. No remainder can be created upon suc- cessive estates for life, provided for in the preced- ing section, unless such remainder is in fee; nor can a remainder be created upon such estate in a term for years, unless it is for the whole residue of such term. [Amendment approved March 30, 1874; Amendments 1873-4, p. 219. In effect July 1, 1874.] § 776. A contingent remainder cannot be cre- ated on a term of years, unless the nature of the contingency on which it is limited is such that the remainder must vest in interest during the continuance or at the termination of lives in be- ing at the creation of such remainder. § 777. No estate for life can be limited as a re- mainder on a term of years, except to a person in being at the creation of such estate. § 778. A remainder may be limited on a con- tingency which, in case it should happen, will operate to abridge or determine the precedent es- tate; and every such remainder is to be deemed a conditional limitation. See sec. 780; infra. 5 779. When a remainder is limited to the §§ 780-790 ESTATES IN REAL PROPERTY. 238 heirs, or heirs of the body, of a person to whom a life estate in the same property is given, the per- sons who, on the termination of the life estate, are the successors or heirs of the body of the owner for life, are entitled to talie by virtue of the remainder so limited to them, and not as mere successors of the owner for life. § 780. When a remainder on an estate for life or for years is not limited on a contingency de- feating or avoiding such precedent estate, it is to be deemed intended to take effect only on the death of the first taker, or the expiration, by lapse of time, of such term of years. § 781. A general or special power of appoint- ment does not prevent the vesting of a future es- tate limited to take effect in case such power is not executed. CHAPTER II. TERMINATION OF ESTATES. § 789. Tenancy at will may be terminated by notice. § 790. Effect of notice. § 791. Re-entry, when and how to be made. § 792. Summary proceedings in certain cases provided for. § 793. Notice not necessary before action. § 789. A tenancy or other estate at will, how- ever created, may be terminated by the landlord's giving notice in writing to the tenant, in the man- ner prescribed by section 1162 of the Code of Civil Procedure, to remove from the premises within a period of not less than one month to be specified in the notice. Changing terms of tenancy: See sec. 827, post. § 790. After such notice has been served, and the period specified by such notice has expired, but not before, the landlord may re-enter, or pro- ceed according to law to recover possession. 239 ESTATES IN REAL PROPERTY. §§ 791-801 § 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' no- tice, as provided in sections llGl and 11G2, Code of Civil Procedure. § 792. Summary proceedings for obtaining pos- session of real property forcibly entered, or for- cibly and unlawfully detained, are provided for in sections 1159 to 1175, both inclusive, of the Code of Civil Procedure. § 793. An action for the possession of real property leased or granted, with a right of re- entry, may be maintained at anj' time, in the dis- trict court, after the right to re-enter has accrued, without the notice prescribed in section 791. CHAPTER III. SERVITUDES. § 801. Servitudes attached to land. § 802. Servitudes not attached to land. § 803. Designation of estates. § 804. By whom grantable. § 805. By whom held. § 806. Extent of servitudes. § 807. Apportioning easements. § 808. Rights of owner of future estate. § 809. Actions by owner and occupant of dominant tene- ment. § 810. Actions by owner of servient tenement. § 811. How extinguished. § 801. The following land burdens, or servi- tudes upon land, may be attached to other laud as incidents or appurtenances, and are then called easements: 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; § 802 ESTATES IN REAL PROPERTY. 240 4. The right of way; 5. The right of taking water, wood, minerals, and other things; 6. The right of transacting business upon land; 7. The right of conducting lawful sports upon land; 8. The right of receiving air, light, or heat from or over, or discharging the same upon or over land; 9. The right of receiving water from or dis- charging the same upon land; 10. The right of flooding land; 11. The right of having water flow without diminution or disturbance of any kind; 12. The right of using a wall as a party wall; 13. The right of receiving more than natural support from adjacent land or things aflSxed there- to; 14. The right of having the whole of a division fence maintained by a coterminous owner; 15. The right of having public conveyances stopped, or of stopping the same on land; 16. The right of a seat in church; 17. The right of burial. See post, sees. 832, 841, 1104, 1410 et seq.; ante, sees. 552. COS. § 802. The following land burdens or servi- tudes upon land, may be granted and held, though not attached to land: 1. The right to pasture, and of flshing and tak-j ing game; 2. The right of a seat in church; 3. The right of burial; 4. The right of taking rents and tolls; 5. The right of way; 6. The right of taking water, wood, minerals, or other things. [Amendment approved March 30, 1874; Amendments 187S-4, p. 219. In effect imme- diately.] 241 ESTATES IN REAL PROPERTY. §§ 803-810 § 803. The land to Avbich an easement is at- tached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement. § 804. A servitude can be created only by one who has a vested estate in the servient tenement. § 805. A servitude thereon cannot be held by the owner of the servient tenement. Servitude is extiuftuished by vesting of right to the servitude and the right to the servient tene- ment in the same person: See sec. 811. § 806. The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. § 807. In case of partition of the dominant ten- ement, the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement. § 808. The owner of a future estate in a domi- nant tenement may use easements attached there- to for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is oc- cupied by a tenant. § 809. The owmer of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an ease- ment attached thereto. Enforcement of easement by injunction: See High on Injunctions, sees. 485 et seq. § 810. The .jwner in fee of a servient tenement \ may maintain an action for the possession of the I land, against any one unlawfully possessed there- 1 Civ. Code.-2l. § 811 RIGHTS, ETC., OF OWNERS. 242 of, though a servitude exists thereon iu favor of the public. § 811. A servitude is extinguished: 1. By the vesting of the right to the servitude and the right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or, 4. When the servitude was acquired by enjoy- ment, by disuse thereof by the owner of the ser- vitude for the period prescribed for acquiring title by enjoyment. Extinguishment of servitude.— Subd. 1. Vesting of right to servitude and right to servient tene- ment in same person: See sec. 805, ante. TITLE III. RIGHTS AND OBLIGATIONS OF OWNERS. Chapter I. Eights of Owners, §§ 818-834. II. Obligations of Owners, §§ 840-841. CHAPTEll I. RIGHTS OF OWNERS. Article I. Incidents of Ownership, §§ 818-827. II. Boundaries, §§ 829-834. ARTICLE I. INCIDENTS OF OWNERSHIP. § 818. Rights of tenant for life. § 819. Rights of tenant for years, &c. § 820. Same. 243 RIGHTS, ETC., OF OWNERS. §§ 818-822 § 821. Rights of grantees of rents and reversions. § 822. Liability of assigns of lessee. § 823. Rights of lessees and their assigns, &c. § 824. Remedy on leases for life. § 825. Rent dependent on life. § 820. Remedy of reversioners, &c. § 827. Terms of lease may be changed by notice. § 818. The owner of a life estate may use the laud in the same manner as the owner of a fee simple, except that he must do no act to the in- jury of the inheritance. Duties of tenants for life: See sec. 840, post. § 819. A tenant for years or at will, unless he is a wrongdoer by holding- over, may occupy the buildings, talce the annual products of the soil, worlv mines and quarries open at the commence- ment of his tenancy. § 820. A tenant for years or at will has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired, or by the last sec- tion. § 821. A person to whom any real property is transferred or devised, upon which rent has been reserved, or to whom any such rent is transferred, is entitled to the same remedies for recovery of rent, for nonperformance of any of the terms of the lease, or for any waste or cause of forfeiture, as his grantor or devisor might have had. Grants of rent are not binding upon the tenant until he has notice thereof: Sec. 1111, post. Hiring of real property generally: See sees. 1041 et seq. § 822. Whatever remedies the lessor of any real property [has] against his immediate lessee for tlie breach of any agreement in the lease, or for recovery of the possession, he has against the gH^ 823-827 RIGHTS, ETC., OF OWNERS. 244 assignees of the lessee, for any cause of action ac- cruing while they are such assignees, except where the assignment is made by way of security for a loan, and is not accompanied by possession of the premises. [Amendment approved March 30, 1874; Amendments 1873-4, p. 219. In effect July 1. 1874.1 § 823. Whatever remedies the lessee of any real property may have against his immediate lessor, for the breach of any agreement in the lease, he may have against the assigns of the lessor, and the assigns of the lessee may have against the lessor and his assigns, except upon covenants against incumbrances or relating to the title or possession of the premises. § 824. Rent due upon a lease for life may be recovered in the same manner as upon a lease for years. § 825. Rent dependent on the life of a person may be recovered after as well as before his death. § 826. A person having an estate in fee, in re- mainder or reversion, may maintain an action for any injury done to the inheritance, notwithstand- ing an intervening estate for life or years, and al- though, after its commission, his estate is trans- ferred, and he has no interest in the property at the commencement of the action. § 827. In all leases of lands or tenements, or of any interest therein, from month to month, the landlord may, upon giving notice in writing at least fifteen days before the expiration of the month, change the terms of the lease to take ef- fect at the expiration of the month. The notice, when served upon the tenant, shall of itself oper- ate and be effectual to create and establish, as a 245 RIGHTS, ETC., OF OWNERS. §§ 829-831 part of the lease, the terms, rent, and conditions specified in the notice, if the tenant shall continue to hold the premises after the expiration of the month. [New section approved March liT, 1874; Amendments 1873-4, p. 220. In effect July 1, 1874.] Termination of tenancy at will: See sec. 789, ante. ARTICLE II. BOUNDARIES. § 829. Rights of owner. § 830. Boundaries by water. § 831. Boundaries by ways. § 832. Lateral and subjacent support. § 833. Trees whose trunks are wholly on land of one. § 834. Line trees. § 829. The owner of land in fee has the right to the surface and to everything permanently sit- uated beneath or above it. § 830. Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide- water, takes to ordinary high-water mark; when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream. [Amendment approved March 30, 1874; Amendments 1873-4; p. 220. In effect July 1, 1874.] Navigable waters boundaries.— Navigable wa- ters enumerated: See Polit. Code, sees. 2348, 2349. § 831. An owner of land bounded by a road or street is presumed to own to the center of me way, but the contrary may be shown. See post. sec. 1112. §§ 832-841 RIGHTS, ETC., OF OWNERS. 246 § 832. Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to malie proper and usual excavations on the same for pur- poses of construction, on using ordinary care and skill, and talking reasonable precautions to sus- tain the land of the other, and giving previous rea- sonable notice to the other of his intention to malj;e such excavations. [Amendment approved March 30, 1874: Amendments 1S73-4, p. 221. In effect July 1, 1874.] § 833. Trees whose trunks stand wholly upuu the land of one owner belong exclusively to him, although their roots grow into the land of an- other. § 834. Trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common. CHAPTER II. OBLIGATIONS OF OWNERS. § 840. Duties of tenant for life. § 841. Monuments and fences. § 840. The owner of a life estate must keep the buildings and fences in repair from ordinary waste, and must pay the taxes and other annual charges, and a just proportion of extraordinary assessments benefiting the whole inheritance. Rights of tenants for life: See sec. 818, ante. Decree declaring life estate terminated: Code Civ. Proc, sec. 1723. § 841. Coterminous owners are mutually bound equally to maintain: 1. The boundaries and monuments between them; 247 USES AND TRUSTS. 5 847 2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value at that time, of any division fence made by the latter. TITLE IV. USES AND TRUSTS. What uses and trusts may exist. Right to possession of land creates legal ownership. (Repealed.) Certain trusts unaffected. (Repealed.) Trustees of estate for use of another take no interest. (Repealed.) Preceding sections qualified. (Repealed.) Trust must be in writing. Transfer to one for money paid by another. Rights of creditors. (Repealed.) Section 853 qualified. (Repealed.) Purchasers protected. For what purposes express trusts may be created. Certain devises in trust to be deemed powers. Profits of land liable to creditors in certain cases. Powers, execution of. Creation of certain powers not prohibited. (Re- pealed.) And land, &c., to descend to persons entitled. (Re- pealed.) Trustees of express trusts to have whole estate. Author of trust may devise, &c. Title of grantor of trust property. Interests remaining in grantor of express trust. Powers over trust of party interested. Same. Effect of omitting trust in conveyance. Certain sales, &c., by trustees, void. When estate of trustee to cease. ' § 847. Uses and trusts in relation to real prop- 'i:»rty are those only which are specified in this ritlo. ' Rules as to suspending power of alienation: oecs. 71.5, TIG, 771, ante. i Trusts for accumulation of income: Sees, 722- i"26. ante. § 847. § 848. § 849. § 850. § 851. § 852. § 853. § 854. § 855. § 856. § 857. 5 858. § 859. 5 860. § 861. :5 862. ■ § 863. ,§ 8J4. § 805. I§ 866. i§ 867. ;§ S6S. •§ 869. |§ 870. \\ 871. §§ 848-857 USES AND TRUSTS. 248 Trusts in general: Sees. 2215-2224, post. Trusts for third persons: Sees. 2250-2289, post. §§ 848, 849, 850, 851. [Repealed Mareh 30, 1874: Amendments 1873-4, 221. In effeet July 1, 1874.] § 852. No trust in relation to real property is valid unless ereated or deelared: 1. By a written instrument, subseribed by the trustee, or by his agent thereto authorized by writing; 2. By the instrument under whieh the trustee claims the estate afifeeted; or, 3. By operation of law. Trust for the benefit of third person, how ere- ated. Sees. 2259-2289. § 853. When a transfer of real property is made to one person, and the eonsideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom sueh' payment is made. [Amendment approved Mareb 30, 1874; Amendments 1873-4, p. 221. In effeet July 1, 1874.] §§ 854, 855. [Repealed Mareh 30, 1874; Amend- ments 1873-4, 221. In effeet July 1, 1874.] § 856. No implied or resulting trust ean preju- dice the rights of a purchaser or encumbrancer of real property for value and without notice of the trust. See sec. 2243. Bona fide purchasers generally: See see. 1214. § 857. Express trusts may be created for any of the following purposes: 1. To sell real property, and apply or dispose of the proceeds in accordance with the instru- ment creating the trust; 2. To mortgage or lease real property for th€ 249 USES AND TRUSTS. 55 858-860 benefit of annuitants or other legatees, or for the purpose of satisfying any charge thereon; 3. To receive the rents and profits of real prop- erty, 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 prop- erty, and to accumulate the same for the purposes and within the limits prescribed by the same title. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 221. In effect July 1, 1874.] See sec. 859. Estate of trustee: See infra, sec. 863. § 858. Where a power to sell real property is given to a mortgagee, or other encumbrancer in an instrument intended to secure the payment of 1 money, the power is to be deemed a part of the 1 security, and vests in any person who, by assign- iraent, becomes entitled to the money so secured ;to be paid, and may be executed by him whenever ithe assignment is duly acknowledged and record- ed. [New S(>('tion apjtroved March '>(), 1874; Amendments 1873-4, p. 222. In effect July 1, ;i874.] ' § 859. Where a trust is created to receive the rents and profits of real property, and no valid lirection for accumulation is given, the surplus ')f such rents and profits, beyond the sum that nay be necessary for the education and support ;»f the person for whose benefit the trust is created, jS liable to the claims of the creditors of such per- ;on, in the same manner as personal property vhich cannot be reached by execution. ! § 860. Where a power is vested in several per- I §§ 861-866 USES AND TRUSTS. 250 sons, all must unite in its execution; but in case any one or more of them is dead, the power may- be executed by the survivor or survivors, unless othervrise prescribed by the terms of the power. [New section approved March 30, 1874; Amend- ments 1873-4, p. 222. In effect July 1, 1874.] Death of cotrustee, the trust survives to the oth- ers: Sec. 2288, post. §§ 861, 862. [Repealed March 30, 1874; Amend- ments 1873-4, 222. In effect July 1, 1874.] § 863. Except as hereinafter otherwise provid- ed, every express trust in real property, valid as such in its creation vests the whole estate in the trustees, subject only to the execution of the trust. The beneficiaries tal^e no estate or interest in the \ property, but may enforce the performance of f the trust. Enforcing performance of the trust: See post, "Obligation of Trustees," sees. 2228-2239, and sees. 2258-2zb3. § 864. Notwithstanding anything contained in i 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 trajisfer or devise such property, subject to the execution of the trust. ? 865. The grantee or devisee of real property subject to a trust acquires a legal estate in the property, as against all persons except the trustees a'ld those lawfully claiming under them. § 866. Where an express trust is created in re- lation to real property, every estate not embraced iQ the trust, and not otherwise disposed of, is left ♦n the author of the trust or his successors. 251 USES AND TRUSTS. §5 867-871 § 867. The beuefici.iry of a trust for the receipt of the reuts and profits of real property, or for the payment of an annuity out of such rents and profits, may be restrained from disposing of his interest in such trust, during his life or for a term of years, by the instrument creating the trust. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 223. In effect July 1, 1874.] Accumulations: See ante, sees. 722 et seq.; sec. 859. § 868. [Kepealed March 30, 1874; Amendments 1873-4, 223. In effect July 1, 1874.] § 869. Where an express trust is created in re- lation to real property, but is not contained or de- clared in the grant to the trustee, or in an instru- ment signed by him, and recorded in the same lOtfice with the grant to the trustee, such grant must be deemed absolute in favor of purchasers ;from such trustee without notice, and for a valua- ible consideration. [Amendments approved March l30, 1874; Amendments 1873-4, p. 223. In effect 'July 1, 1874.] ' Purchasers from trustee of express trust, when 'n'otected: See note to sec. 803, supra; sec. 870, nfra. I Purchaser, when charged with implied or re- sulting trust: See sec. 856, ante. 1 § 870. Where a trust in relation to real prop- [rty is expressed in the instrument creating the jstate. every transfer or other act of the trustees, ;:i contravention of the trust, is absolutely void. § 871. Wlien the purpose for which an express •ust was created ceases, the estate of the trustee Iso ceases. POWERS. 252 TITLE V. POWERS. Title Y, of Part II, of Division II, on Powers, of the Civil Code, embracing sections of said Code from section 878 to 946, inclusive, is repealed. [Approved March 30, 1874. Amendments 1873-4, p. 23. In effect July 1, 1874.] PART III. PERSONAL OK MOVABLE PROPERTY. Title I. Personal Property in General, §§ 94G-947. IL Particular Kinds of Personal Property, §§ 953-994. TITLE I. PERSONAL PROPERTY IN GENERAL. S 946. By what law governed. , § 947. Future interests in perishable property, how pro- tected. (Repealed.) ; § 946. If there is no law to the contrary in the [ place where personal property is situated, it is ; deemed to follow the person of its ow^ner, and is .governed by the law of his domicile. ' § 946 having been repealed by clerical error in 1874, was re-enacted at session of 1875-6. I § 947. [Repealed March 30, 1874; Amendments 11873-4, 223. In effect July 1, 1874.] Civ. Code.-22. §§ 953-954 THINGS IN ACTION. 254 TITLE II. PARTICULAR KINDS OF PERSONAL PROPERTY. Chapter I. Things in action, §§ 953-954. II. Shipping, §§ 960-973. III. Products of the Mind, §§ 980-985. IV. Other Kinds of Personal Property, §§ 991-994. CHAPTER I. THINGS IN ACTION. § 953. Things in action defined. § 954. Transfer and survivorship. ; § 953. A thing in action is a right to recover money or otlier personal property by a judicial proceeding. [Amendment approved March 30, 1874; Amendments 1873-4, p. 223. In effect July 1, 1874.] § 954. A thing in action, arising out of the vio- lation of a right of property, or out of an obliga- tion, may be transferred by the owner. Upon the death of the owner it passes to his personal rep- resentatives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office. See sees. 1582, 1583. See also "Transfer of Obligations," sec. 1458, post. Suing on choses in action: See Code Civ. Proc, sees. 367-369, 1582, 1583. 255 SHIPPING. 5§ 960-963 CHAPTER II. SHIPPING. Article I. General Provisions, §§ 960-966. II. Rules of Navigation, §§ 970-973. ARTICLE I. GENERAL PROVISIONS. § 960. Definition of a ship and shipping terms. g 961. Appurtenances and equipments. § 962. Foreign and domestic navigation. § 963. Foreign and domestic distinguished. § 964. Several owners. § 965. Owner for voyage. § 966. Registry, &c. § 960. The term ship, or shipping, when used in this Code, includes steamboats, sailing vessels, canal boats, barges, and every structure adapted to be navigated from place to place for the trans- I portation of merchandise or persons. [Amend- ! ment approved March 30, 1874; Amendments ! 1873-4, p. 224. In effect July 1, 1874.] § 961. All things, belonging to the owners, i which are on board a ship, and are connected with ! Its proper use, for the objects of the voyage and adventure in which the ship is engaged, are deem- ed its appurtenances. § 962. Ships are engaged either in foreign or domestic navigation, or in the fisheries. Ships are engaged in foreign navigation when passing to or from a foreign country; and in domestic navigation, when passing from place to place with- in the United States. § 963. A ship in a port of the State to which §§ 964-970 SHIPPING. 256 it belongs is called a domestic ship; in another port it is called a foreign ship. § 964. If a ship belong to several persons, not partners, and they differ as to its use or repair, the controversy may be determined by any court of competent jurisdiction. § 965. If the owner of a ship commits its pos- session, and navigation to another, that other, and not the owner, is responsible for its repairs and supplies. Charter party defined: See post, sec. 1959. § 966. The registry, enrollment, and license of ships are regulated by acts of Congress. ARTICLE II. RULES OF NAVIGATION. § 970. Collisions. 1. Rules as to ships meetiBg each other. 2. The rule for sailing vessels. 3. Rules for steamers in narrow channels. 4. Same. 5. Rules for steam vessels on different courses. 6. Meeting of steamers. § 971. Collision from breach of rules. § 972. Breaches of such rules to imply willful default. § 973. Loss, how apportioned. § 970. In the case of ships meeting, the follow- ing rules must be observed, in addition to those prescribed by that part of the Political Code which relates to navigation: 1. Whenever any ship, whether a steamer or sail- ing ship, proceeding in one direction, meets an- other ship, whether a steamer or sailing ship, pro- ceeding in another direction, so that if both ships were to continue their respective courses they would pass so near as to involve the risli of 257 ' SHIPPING. 5 »7t a collisiuD, the helms of both ships must be put to port so as to pass ou the port side of each other; and this rule applies to all steamers and all sail- ing' ships, whether ou the port or starboard tack, and whether close-hauled or not, except where the circumstances of the case are such as to render a departure from the rule necessary in order to avoid immediate danger, and subject also to a due regard to the dangers of navigation, and, as re- gards sailing ships on the starboard tack close- hauled, to the keeping such ships under command; 2. In the case of sailing vessels, those having the wind fair must give way to those on a wind. When both are going by the wind, the vessel on the starboard tack must keep her wind, and the one on the larboard tack bear up strongly, pass- ing each other on the larboard hand. When both vessels have the wind large or abeam, and meet, they must pass each other in the same way on the larboard hand, to effect which two last-mentioned 1 objects the helm must be put to port. Steam ves- ' sels must be regarded as vessels navigating with ; a fair wind, and should give way to sailing vessels ' on a wind of either tack; ! 3. A steamer navigating a narrow channel must, whenever it is safe and practicable, keep »to that side of the fairway or mid channel which I lies on the starboard side of the steamer; 1 4. A steamer when passing another steamer in I such channel, must always leave the other upon jthe larboard side; ' 5. When steamers must inevitably or necessa- irily cross so near that, by continuing their respec- jtive courses, there would be a risk of collision, ^each vessel must put her helm to port, so as al- [ways to pass on the larboard side of each other; ^ 6. The rules of this section do not apply to any !2ase for which a different rule is provided by the I'egulations for the government of pilots of steam- §§ 971-973 SHIPPING. 258 ers approaching each other within sound of the steam-\Yhistle, or by the regulations concerning lights upon steamers, prescribed under authority of the acts of Congress, approved August thir- tieth, eighteen hundred and fifty-two, and April twenty-ninth, eighteen hundred and sixty-four. For Rules of Navigation, etc., see Polit. Code, sees. 2360-2379. § 971. If it appears that a collision was occa- sioned by failure to observe any rule of the fore- going section, the owner of the ship by which such rule is infringed cannot recover compensa- tion for damages sustained by the ship in such collision, unless it appears that the circumstances of the case made a departure from the rule nec- essary. § 972. Damage to person or property arising from the failure of a ship to observe any rule ol section 970, must be deemed to have been occa- sioned by the willful default of the person in charge of the decli of such ship at the time, un- less it appears that the circumstances of the case made a departure from the rule necessary. § 973. Losses caused by collision are to be borne as follows: 1. If either party was exclusively in fault he must bear his own loss, and compensate the other for any loss he has sustained; 2. If neither was in fault, the loss must be borne by him on whom it falls; 3. If both were in fault, the loss is to be equally divided, unless it appears that there was a great disparity in fault, in which case the loss must be equitably apportioned; 4. If it cannot be ascertained where the fault lies, the lo9« must be equally divided. 269 PRODUCTS OF THE MIND. §§ 980-983 CHAPTER III. PRODUCTS OF THE MIND. § 980. How far the subject of ownership. § 981. Joint authorship. § 982. Transfer. § 983. Effect of publication. § 984. Subsequent inventor, author, &c. § 985. Private writings. § 980. The author of any product of the mind, whether it is an invention, or a composition in let- ters or art, or a design, with or without delinea- tion, or other graphical representation, has an exclusive ownership therein, and in the represen- tation or expression thereof, which continues so long as the product and the representations or ex- pressions thereof made by him remain in his pos- j session. Trademarlis: See Polit. Code, sees. 3196 et seq., I and sec. 991 of this Code. ; § 981. Unless otherwise agreed, a product of ^ the mind in the production of which several per- sons are jointly concerned is owned by them as follows: 1 1. If the product is single, in equal proportions; I 2. If it is not single, in proportion to the contri- bution of each. § 982. The owner of any product of the mind, or of any representation or expression thereof, may transfer his property in the same. j § 983. If the owner of a product of the mind tintentionnlly makes it public, a copy or reproduc- Hou may be made public by any person, without iresponsibility to the owner, so far as the law of §§ 984-991 OTHER KINDS OF PERSONAL PROPERTY. 260 § 984. If the owner of a product of the mind does not make it public, any other person subse- quently and originally producing the same thing has the same right therein as the prior author, which is exclusive to the same extent against all persons except the prior author, or those claiming under him. § 985. Letters and other private communica- tions in writing belong to the person to whom they are addressed and delivered; but they can- not be published against the will of the writer, ex- cept by authority of law. CHAPTER IV. OTHER KINDS OF PERSONAL PROPERTY. § 991. Trade-marks. § 992. Goodwill of business. § 993. Same. § 994. Title deeds. § 991. One who produces or deals in a particu- lar thing, or conducts a particular business, may appropriate to his exclusive use, as a trademarli, any form, symbol, or name, which has not been so appropriated by another, to designate the ori- gin or ownership thereof; but he cannot exclusive- ly appropriate any designation, or part of a desig- nation, which relates only to the name, quality, or the description of the thing or business, or the place where the thing is produced, or the business is carried on. [Amendment approved March 30, 1874; Amendments 1873-4, p. 224. In effect July 1, 1874.] As to trademarks, see Polit. Code, sees. 8196- 3198; Penal Code, sees. 350-354. Act to protect trademarks, see post, Appendix, p. 835. 261 OTHER KINDS OF PERSONAL PROPERTY. §§ 992-994 § 992. The good will of a business is the ex- pectation of continued public patronage, but it does not include a right to use the name of any person from whom it was acquired. Good will: See post, sec. 1674. § 993. The good will of a business is property, transferable like any other. § 994. Instruments essential to the title of real property, and which are not kept in a public office as a record, pursuant to law, belong to the person in whom, for the time being, such title may be vested, and pass with the title. PART IV. ACQUISITION OF PROPERTY. Title I. Modes in which Property may be Ac- quired, §§ 1000-1001. II. Occupancy, §§ 1006-1007. III. Accession, §§ 1013-1033. IV. Transfer, §§ 1039-1231. Y. Homesteads, §§ 1237-1269. YI. Wills, §§ 1270-1377. YII. Succession, §§ 1383-1408. YIII. Water Rights, §§ 1410-1422. TITLE I. MODES IN WHICH PROPERTY MAY BE ACQUIRED. I § 1000. Property, how acquired. § 1001. Acquisition of property by exercise of eminent do- main. § 1000. Property is acquired by: 1. Occupancy; 2. Accession; 3. Transfer; 4. Will; or. 5. Succession. § 1001. Any person may, without further legis- lative action, acquire private property for any use specified in section 1238 of the Code of Civil Pro- cedure, either by consent of the owner or by pro- ceedings had under the provisions of Title VII, 263 OCCUPANCY. §§ 1006, 1007 Part III, of the Code of Civil Procedure; and any person seeking to acquire property for any of the uses mentioned in such title is "an agent of tlie State," or a "person in ctiarge of such use." with- in the meaning of those terms as used in such title. This section shall be in force from and after the fourth day of April, eighteen hundred and seventy-two. Eminent domain: See Code Civ. Proc, sees. 1237- 1200. TITLE II. OCCUPANCY. § 1006. Simple occupancy. § 1007. Prescription. § 1006. Occupancy for any period confers a ti- tle sufficient against all except the State and those who have title by prescription, accession, trans- fer, wmII, or succession. j § 1007. Occupancy for the period prescribed by J the Code of Civil Procedure as sufficient to bar an 'action for the recovery of the property confers a 'title thereto, denominated a title by prescription, which is sufficient against all. [ Adverse possession passing title: See Code Civ. Proc, sec. 321. §§ 1013-1015 ACCESSION. 264 TITLE III. ACCESSION. Chapter I. To Real Property, §§ 1013-1019. II. To Personal Property, §§ 1025-1033. CHAPTER I. ACCESSION TO REAL PROPERTY. § 1013. Fixtures. § 1014. Alluvion. § 1015. Sudden removal of bank. § 1016. Islands, in navigable streams. § 1017. In unnavigable streams. § 1018. Islands formed by division of stream. § 1019. What fixtures tenant may remove. § 1013. When a person affixes his property to the land of another, without an agreement permit- ting him to remove it, the thing affixed, except as provided in section ten hundred and nineteen, be- longs to the owner of the land, unless he chooses to require the former to remove it. [Amendment approved March 30, 1874; Amendments 1873-4, p. 224. In effect July 1, 1874.] Fixtures: See ante, sec. 668. § 1014. Where, from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank. § 1015. If a river or stream, navigable or not navigable, carries away, by sudden violence, a considerable and distinguishable part of a bank, and bears it to the opposite bank, or to another 265 ACCESSION. §§ 1016-1019 part of the same bank, the owner of the part car- ried away may reclaim it within a year after the owner of the laud to which it has been united takes possession thereof. § 1016. Islands and accumulations of land, formed in the beds of streams which are naviga- ble, belong to the State, if there is no title or pre- scription to the contrary. § 1017. An island, or an accumulation of land, formed in a stream which is not navigable, be- longs to the owner of the shore on that side where the island or accumulation is formed; or, if not formed on one side only, to the owners of the Bhore on the two sides, divided by an imaginary line drawn through the middle of the river. § 1018. If a stream, navigable or not naviga- ble, in forming itself a new arm, divides itself and , surrounds land belonging to the owner of the ishore, and thereby forms an island, the island be- |longs to such owner. • § 1019. A tenant may remove from the demis- ed premises any time during the continuance of 'bis term, anything affixed thereto for purposes of :rade, manufacture, ornament, or domestic use, if '"he removal can be effected without injury to the Premises, unless the thing has, by the manner in vhich it is affixed, become an integral part of the !)remises. [New section approved March 30, 1874; 'Vmendments 1873-4, p. 224. In effect July 1. ^74.] Civ. Code.— 23. §§ 1025-1028 ACCESSION. 266 CHAPTER II. ACCESSION TO PERSONAL PROPERTY. § 1025. Accession by uniting several things. § 1026. Principal part, wtiat. § 1027. Same. § 1028. Uniting materials and workmanship. § 1029, Inseparable materials. § 1030. Materials of several owners. < 1031. Willful trespasser*. § 1032. Owner may elect between the thing and its value. § 1033. Wrongdoer liable in damages. § 1025. When things belonging to different owners have been united so as to form a single thing, and cannot be separated without injury, the whole belongs to the owner of the thing which forms the principal part; who must, however, re- imburse the value of the residue to the other own- er, or surrender the whole to him. § 1026, That part is to be deemed the principal to which the other has been united only for the use, ornament, or completion of the former, unless the latter is the more valuable, and has been unit- ed without the knowledge of its owner, who may, in the latter case, require it to be separated and returned to him, although some injury should re- sult to the thing to which it has been united. § 1027. If neither part can be considered the principal, within the rule prescribed by the last section, the more valuable, or, if the values are nearly equal, the more considerable in bulk, is to be deemed the principal part. § 1028. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workman-; ship, unless the value of the workmanship exceeds * the value of the materials, in which case the thing 267 ACCESSION. S9 1029-1032 belongs to the maker, on reimbursing the value of the materials. § 1029. Where one has made use of materials which in part belong to him and in part to an- other, in order to form a thing of a new descrip- tion, without having destroyed any of the materials, but in such a way that they cannot be separated without inconvenience, the thing formed is com- mon to both proprietors; in proportion, as respects the one, of the materials belonging to him, and as respects the other, of the materials belonging to him and the price of his workmanship. § 1030. When a thing has been formed by the admixture of several materials of different own- ers, and neither can be considered the principal substance, an owner without whose consent the I admixture was made may require a separation, if the materials can be separated without inconven- ; ience. If they cannot be thus separated, the own- I ers acquire the thing in common, in proportion to J the quantity, quality, and value of their mate- ; rials; but if the materials of one were far superior to those of the others, both in quantity and value, 1 he may claim the thing on reimbursing to the others the value of their materials. ! § 1031. The foregoing sections of this article lare not applicable to cases in which one willfully luses the materials of another without his consent; ibut. in such cases, the product belongs to the own- t r of the material, if its identity can be traced. 5 1032. In all cases where one whose material •has been used without his knowledge, in order to [form a product of a different description, can claim an interest in such product, he has an op- inion to demand either restitution of his material n kind, in the same quantity, weight, measure. §§ 1033-1039 TRANSFER. 268 and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. § 1033. One who wrongfully employs materials belonging to another is liable to him in damages, as well as under the foregoing provisions of this chapter. TITLE IV. TRANSFER. Chapter I. Transfer in General, §§ 1039-1085. II. Transfer of Real Property, §§ 1091- 1115. III. Transfer of Personal Property, §§ 1135-1153. IV. Recording Transfers of Real Prop- erty, §§ 1158-1217. V. Unlawful Transfers, §§ 1227-1231. CHAPTER I. TRANSFERS IN GENERAL. Article I. Definition of Transfer, §§ 1039-1040. II. What may be Transferred, §§ 1044-47. III. Mode of Transfer, §§ 1052-1060. rv. Interpretation of Grants, §§ 1066-107^ V. Effect of Transfer. 1083-1085. ARTICLE I. DEFINITION OF TRANSFER. § 1039. Transfer, what. § 1040. Voluntary transfer. § 1039, Transfer is an act of the parties, or of the law by which the title to property is conveyed from one living person to another. 269 TRANSFER. §§ 1040-1047 § 1040. A voluntary trausfer is an executed contract, subject to all rules of law concerning contracts in general; except that a consideration is not necessary to its validity. Gifts: See sees. 1140, post, et seq. ARTICLE II. WHAT MAY BE TRANSFERRED. § 1044. What may be transferred. S 1045. Possibility. § 1043. Right of re-entry can be transferred. 5 1047. Owner ousted of possession may transfer. § 1044. Property of any kind may be transfer- red, except as otherwise provided by this article. § 1045. A mere possibility, not coupled with an ' interest, cannot be transferred. j § 1046. A right of re-entry, or of repossession I for breach of condition subsequent, can be trans- ! f erred. ' § 1047. Any person claiming title to real prop- lerty in the adverse possession of another may transfer it with the same effect as if in actual ^possession. ' See post, sec. 2921. §§ 1052-1055 TRANSFER. 270 ARTICLE III. MODE OF TRANSFER. § 1052. When oral. § 1053. Grant, what. § 1054. Delivery necessary. § 1055. Date. § 1056. Delivery to grantee is necessarily absolute. § 1057. Delivery in escrow. § 1058. Surrendering or canceling grant does not reconvey. § 1059. Constructive delivery. § 1060. Gratuitous grants take effect immediately; excep- tion. (Repealed.) § 1052. A transfer may be made without writ- ing, in every case in which a writing is not ex- pressly required by statute. What contracts must be in writing: See sec. 1624, post. Unlawful transfers: See sees. 1227 et seq. Fraudulent instruments and transfers: See sees. 3439 et seq., post. § 1053. A transfer in writing is called a grant, or conveyance, or bill of sale. The term "grant," • in this and the next two articles, includes all these ^ instruments, unless it is specially applied to real. property. [Amendment approved March 30, 1874;, Amendments 1873-4, p. 225. In effect July 1, 1874.]/ Covenants applied from a "grant" of realty: See sec. 1113, post. § 1054. A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor. Constructive delivery: See sec. 1059, infra. Contract in writing talies effect only from de- livery: See post, sec. 1626. § 1055. A grant duly executed is presumed to have been delivered at its date. 271 TRANSFER. §§ 1056-1060 § 1056. A grant canuot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made. § 1057. A grant may be deposited by the grant- or with a third person, to be delivered on perform- ance of a condition, and, on delivery by the de- positary, it will talve effect. AVhile in the posses- sion of the third person, and subject to condition, it is called an escrow. § 1058. Redelivering a grant of real property to the grantor, or canceling it, does not operate to retrausfer the title. Kequisites of transfer of estates in real prop- erty: See sec. 1091, post. I § 1059. Though a grant be not actually deliv- [ered into the possession of the grantee, it is yet ito be deemed constructively delivered in the fol- [lowing cases: ; 1. Where the instrument is, by the agreement of i;he parties at the time of execution, understood to ,)e delivered, and under such circumstances that he grantee is entitled to immediate delivery; or, ^ 2. Where it is delivered to a stranger for the ))enefit of the grantee, and his assent is shown, or laay be presumed. I § 1060. [Repealed March 30, 1874; Amend- laents 1873-4, 225. In effect July 1, 1874.] §§ 1066-1071 TRANSFER. 272 ARTICLE IV. INTERPRETATION OF GRANTS. § 1066. Grants, how interpreted. § 1067. Limitations, how controlled. § 1068. Recitals, when resorted to. § 1069. Interpretation against grantor. § 1070. Irreconcilable provisions. § 1071. Meaning of "heirs" and "issue," in certain remain- ders. § 1072. Words of inheritance unnecessary. § 1066. Grants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided in this article. Interpretation of contracts: See post, sees. 1636, 1641. § 1067. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct. § 1068. If the operative words of a grant are doubtful, recourse may be had to its recitals to assist the construction. § 1069. A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body,, as such, to a private party is to be interpreted in favor of the grantor. § 1070. If several parts of a grant are absolute- ly irreconcilable, the former part prevails. § 1071. Where a future interest is limited by a grant to take effect on the death of any person without heirs, or heirs of his body, or without is- sue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor. 273 TRANSFER. §5 1072-1085 § 1072. Words of inheritance or succession are not requisite to transfer a fee in real property. Words of inheritance unnecessary: Stats. 1855, 171, sec. 3. A fee-simple is presumed to be intended to be conveyed, unless the contrary appears from the grant: See sec. 1105, post. Devise of fee.— Word "heirs" not necessary: Sec. 1329, post. What estate a fee: See sec. 762, ante. ARTICLE V. EFFECT OF TRANSFER. § 1083. What title passes. § 1084. Incidents. 5 1085. Grant may inure to benefit of stranger. § 1083. A transfer vests in the transferee all the actual title to the thing transferred which the I transferrer then has unless a different intention is [expressed or is necessarily implied. ' § 1084. The transfer of a thing transfers also lall its incidents, unless expressly excepted; but the transfer of an incident to a thing does not trans- 'fer the thing itself. j See sees. 1104, 3540, post. I 1 8 1085. A present interest, and the benefit of ja condition or covenant respecting property, may 'be taken by any natural person under a grant, although not named a party thereto. §§ 1091, 1092 TRANSFER. 274 CHAPTER II. TRANSFER OF REAL PROPERTY. Article I. Mode of Transfer, §§ 1091-1095. II. Effect of Transfer, §§ 1104-1115. ARTICLE I. MODE OF TRANSFER. § 1091. Requisites for transfer of certain estates. § 1092. Form of grant. § 1093. Grant by married women, how acknowledged. § 1094. Power of attorney of married woman, how acknowl- edged. § 1095. Attorney in fact, how must execute for principal. § 1091. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent there- unto authorized by writing. Transfer of realty: Code Civ. Proc, sees. 1971- 1974. Requisites of transfer of real property: See cor- responding section in Code of Civil Procedure, sec. 1971. See further sec. 1624, subd. 5. Conveyances by person whose name changed: See post. Appendix, p. 765. § 1092. A grant of an estate in real property may be made in substance as follows: "I, A B, grant to C D all that real property sit- uated in (insert name of county) County, State of California, bounded (or described) as follows: (here insert description, or if the land sought to be conveyed has a descriptive name, it may be de- scribed by the name, as, for instance, 'The Norris Ranch.') "Witness my hand this (insert day) day of (in- sert month), 18—. "A B." 275 TRANSFER. §§ 1093-1095 See Act of March 11, 1874, Conveyanciug by per- son who has changed his or her name, Appendix, p. 470. See sec. 1014, post. § 1093. A grant or conveyance of real proper- ty made by a married woman may be made, exe- I cuted, and acl^nowledged in the same manner and ; has the same effect as if she were unmarried. I [Amendment approved March 14, 1895; Stats. ! 1805, p. 53. In effect immediately.] I Conveyance by married women: See sees. 1186, 11187, and 1191, post. I § 1094. A married woman may malie, execute, land revoke powers of attorney for the sale, con- Iveyance, or incumbrance of her real or personal 'estate, which shall have the same effect as if she •were unmarried, and may be aclj;nowledged in the same manner as a grant of real property. j[ Amendment approved March 9, 1895; Stats. 1895. ip, 30. In effect in sixty days.] I ; § 1095. When an attorney in fact executes an 'nstrument transferring an estate in real property, 'le must subscribe the name of his principal to it, lud his own name as attorney in fact. §§ 1104-1106 TRANSFER. 276 ARTICLE II. EFFECT OF TRANSFER. § 1104. What easements pass w-ith property. § 1105. When fee simple title is presumed to pass. § 1106. Subsequently acquired title passes by operation of law. § 1107. Grant, how far conclusive on purchasers. § 1108. Conveyances by owner for life or for years. § 1109. Grant made on condition subsequent. § 1110. Grant on condition precedeint. § 1111. Grant of rents, reversions, and remainders. § 1112. Boundary by highway, what passes. § 1113. Implied covenants. § 1114. What the term "incumbrances" embraces. § 1115. Lineal and collateral warranties abolished. § 1104. A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the per- son whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. Transfer carries easements: See the general sub- ject of easements, sec. 801, ante. Transfer of a thing carries its incidents: Sec. 1084, ante. § 1105. A fee simple title is presumed to be intended to pass by a grant of real property, un- less it appears from the grant that a lesser estate was intended. See sec. 1072, ante. § 1106. Where a person purports by proper in- strument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors. .'77 TRANSFER. §§ 1107-1111 § 1107. Every grant of an estate in real prop- erty is conclusive against the grantor, also against ('Very one subsequently claiming under him, ex- ( l>r a purchaser or incumbrancer who in good nith and for a valuable consideration acquires a itlc or lien by an instrument that is first duly re- corded. >^ 1108. A grant made by the owner of an es- ate for life or years, purporting to transfer a mater estate than he could lawfully transfer, I'MS uot worli a forfeiture of his estate, but passes (> ihe grantee all the estate which the grantor • uilcl lawfully transfer. >^ 1109. Where a grant is made upon condition 111 (sequent, and is subsequently defeated by the Miiperformance of the condition, the person oth- rwise entitled to hold under the grant must re- onvey the property to the grantor or his succes- ^rs. by grant, duly acknowledged for record. < Ooditions: See sees. 707 et seq. lU'Cording instruments: See sec. 1158, post. Tnrecorded deed void as to subsequent bona fide urchasers: Sec. 1214, post; sec. 1107, ante. S 1110. An instrument purporting to be a grant real property, to take effect upon condition vcedent, passes the estate upon the performance the condition. [Amendment approved March '. 1874; Amendments 1873-4, p. 225. In effect ily 1, 1874.] !j 1111. Grants of rents or of reversions or of inninders are good and effectual without attorn- lents of the tenants; but no tenant who, before i>tice of the grant, shall have paid rent to the lantor, must suffer any damage thereby. :3ee ante. sec. 821. Civ. Code.-24. §§ U12-1U5 TRANSFER. 278 § 1112. A transfer of land, bounded by a high- way, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent ap- pears from the grant. [Amendment approved March 30, 1874; Amendments 1873-4, p. 225. In ef- fect July 1, 1874.] See ante, sec. 831. § 1113. From the use of the word "grant" in any conveyance by which an estate of inheritance or fee simple is to be passed, the following cove- nants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless restrained by ex- press terms contained in such conveyance: 1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; 2. That such estate is at the time of the exe- cution of such conveyance free from incumbrances done, made, or suffered by the grantor, or any per- son claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance. Stats. 1855, 171, sec. 9. Covenants running with land: See sees. 1460- 1467, post. The "usual covenants": See sec. 1733, post. § 1114. The term "incumbrances" includes taxes, assessments, and all liens upon real prop- erty. [Amendment approved March 30, 1874; Amendments 1873-4. p. 225. In effect July 1, 1874.] § 1115. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and 1-73 TRANSFER. S9 1135-U40 devisees of every person who has made any cov- ♦'iiant or agreement in reference to the title of, in, or to any real property, are answerable upon such covenant or agreement to the extent of the land descended or devised to them, in the cases and in the manner prescribed by law. CHAPTER III. TRANSFER OF PERSONAL PROPERTY. Article I. Mode of Transfer, §§ 1135-1136. II. What operates as a Transfer, §§ 1140-1142. III. Gifts, §§ 1146-1153. ARTICLE I. MODE OF TRANSFER. 5 1135. When must be in writing. .> 1136. Transfer by sale. &c. § 1135. An interest in a ship, or in an existing itrust, can be transferred only by operation of law, ior by a written instrument, subscribed by the Iperson making the transfer, or by his agent. ' See sec. 3440, post. § 1136. The mode of transferring other per- sonal property by sale is regulated by the title on ithat subject, in Division third of this Code. Transfer of obligations: See sees. 1457 et seq. Sales of property generally: See sees. 1721, post, 't seq. ARTICLE II. WHAT OPERATES AS A TRANSFER. !• 1140. Transfer of title under sale. . [ 1141. Transfer of title under executory agreement for sale. 1112. When buyer acquires better title than seller has. >j 1140. The title to personal property, sold or xchanged passes to the buyer whenever the par §§ U41, U42 TRANSFER. 280 ties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not. Validity of sale of personal property: See sees. 1739, post et seq.; and sec. 1624, post. Delivery: See sees. 1753 et seq., and sec. 1054, ante. Agreement to sell and buy defined: See sec, 1729, post. § 1141. Title is transferred by an executory: agreement for the sale or exchange of per&onal property only when the buyer has accepted the thing, or when the seller has completed it, pre- pared it for delivery, and offered it to the buyer, with intent to transfer the title thereto, in the, manner prescribed by the chapter upon Offer of! Performance. Offer of performance: See sees. 1485, post, et seq. § 1142. Where the possession of personal prop- erty, together with a power to dispose thereof, is transferred by its owner to another person, an executed sale by the latter, while in possession, to a buyer in good faith and in the ordinary course of business, for value, transfers to such buyer the title of the former owner, though he may be entitled to rescind, and does rescind, the transfer made by him. Sales by factoi : See post, sec. 2369. 2S1 TRANSFER. §5 1146-1151 ARTICLE III. GIFTS. § 1146. Gifts defined. § 1147. Gift, how made. I 1148. Gift not revocable. § 1149. Gift In view of death, what. § 1150. When gift presumed to be in view of death. S 1161. Revocation of gift In view of death. § 1152. Effect of will upon gift. § 1153. When treated as legacy. § 1146. A gift is a transfer of personal prop- erty, made voluntarily, and without consideration. § 1147. A verbal gift is not valid, unless the means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee. I § 1148. A gift, other than a gift in view of {death, cannot be revolted by the giver. ' Revolving gifts mortis causa: Sec. 1151, infra. I § 1149. A gift in view of death is one which lis made in contemplation, fear, or peril of death, •and with intent that it shall take effect only in l^ase of the death of the giver, I Revoking gift in view of death: See sec. 1151, tinfra. § 1150. A gift made during the last illness of .he giver, or under circumstances which would laturally impress him with an expectation of ipeedy death, is presumed to be a gift in view of leath. ' § 1151. A gift in view of death may be re- t'oked by the giver at any time, and is revoked by lis recovery from the illness, or escape from the §§ 1152, 1153 TRANSFER. 282 peril, under the presence of which it was made, or by the occurrence of any event which would operate as a revocation of a will made at the same time; but when the gift has been delivered to the donee, the rights of a bona fide purchaser from the donee before the revocation, shall not be af- fected by the revocation. [Amendment approved March 30, 1874; Amendments 1873-4, p. 226. In effect July 1, 1874.] Revoking gift causa mortis: See for the various conditions which will defeat a gift made in view of death, the note to sec. 1149, supra. Gift inter vivos not revocable: See sec. 1148, supra. § 1152. A gift in view of death is not affected by a previous will; nor by a subsequent will, un- less it expresses an intention to revoli:e the gift. § 1153. A gift in view of death must be treat- ed as a legacy, so far as relates only to the cred- itors of the giver. 263 TRANSFER. § 1158 CHAPTER IV. RECORDING TRANSFERS. Article I. What may be recorded, §§ 1158-1165. II. Mode of Recording. S§ 1169-1173. III. Proof and Acknowledgments of Instruments, §§ 1180-1207. IV. Effect of Recording or of the Want thereof, §§ 1213-1217. ARTICLE I. WHAT MAY BE RECORDED. ,'5 1158. What may be recorded. 'I 1169. Judgments may be recorded without acknowledg- ment. 5 1160. Letters patent may be recorded without ac- knowledgment. 5 1161. Instruments must be acknowledged, except, &c. 1 1162, Same. i 1163. Instruments executed under power of attorney not to be recorded until power is filed. (Repealed.) t 113-1. Transfers in trust, &c. i 1105. Fees of recorder to be indorsed. ' § 1158. Any instrument or judj?ment affecting ':he title to or possession of real property may be recorded under this chapter. Recording of conveyance by one whose name ^fuanged: See post. Appendix, p. TC"). I Compare with section 1215, as indicating -.vhat Inay be recorded. I Place of recording: See sec. 1169, post. j Execution of instrument and aclvuowledgment 'o entitle to be recorded: See sec. 1161, infra, and ecs. 1180 et sea. T'roceedings to correct imperfect aclinowledg- u'lit: Sees. 1202. 1203, post. . Bona fide purchasers without notice whose deeds ;re first recorded take precedence over prior rnutee: Sec. 1107. ante; sec. 1214, post. Recorders: See Polit. Code, sees. 4235 et sea. §§ U59, 116C TRANSFER. 284 Instrument, when deemed recorded: See sec. 1170, post. Effect of recording, or want thereof: See sees. 1213, post, et seq. § 1159. Judgments affecting the title to or pos- session of real property authenticated by the cer- tificate of the clerli of the court in which such judgments were rendered (and notices of location of mining claims), may be recorded without ac- knowledgment, certificate of acknowledgment, or further proof. The record of all notices of loca- tion of mining claims heretofore made in the proper office without acknowledgment, or certifi- cate of acknowledgment, or other proof shall have the same force and effect for all purposes as if the same had been duly acknowledged, or proved and certified as required by law. Affida- vits showing work or posting of notices upon mining claims may also be recorded in the Re- corder's office of the county, where such mining claims are situated. [Amendment approved March 9, 1897; Stats. 1S97, ch. xciv.] Recorder must file judgments: Polit. Code, sec. 423S. § 1160. Letters patent from the United States or from the State of California, executed and au- thenticated pursuant to existing law, may be re- corded without acknowledgment or further proof; and where letters patent have been lost, or are beyond the control of any party deraigning title, therefrom, or for any reason they remain unre-'_ corded, any person claiming title thereunder may cause a transcript of the copy of such letters pat- ent kept by the government issuing the same, duly certified by the officer or individual having lawful custody of such copy, to be recorded in lieu of the original; and such recorded copy shall have prima 286 TRANSFER. H 1161-1164 facie the same force and effect as the original, for title or for evidence, until said original letters pat- ent be recorded. [Amendment approved April 1, 1878; Amendments 1877-8, p. 85. In effect sixtieth day after passage.] § 1161, Before an instrument can be recorded, unless it belongs to the class provided for in either sections eleven hundred and fifty-nine, eleven hun- dred and sixty, twelve hundred and two, or twelve hundred and three, its execution must be acknowl edged by the person executing it, or if executed by a corporation, by its president or secretary, or proved by a subscribing witness, or as provided in sections eleven hundred and ninety-eight and eleven hundred and ninety-nine, and the acljnowl- edgment or proof certified in the manner prescrib- ed by Article III of this chapter. [Amendment ap- proved March ?,(), 1874; Amendments 1873-4, p. 226. In effect July 1, 1874.] § 1162. An instrument, proved and certified pursuant to sections 1198 and 1199, may be re- corded in the proper office if the original is at the same time deposited therein to remain for public inspection, but not otherwise. I § 1163. [Repealed March 30, 1874; Amend- jments 1873-4, 226. In effect July 1, 1874.] § 1164. Transfers of property in trust for the benefit of creditors, and transfers or liens on prop- erty by way of mortgage, are required to be re- corded in the cases specified in the titles on the special relation of Debtor and Creditor, and the chapter on Mortgages respectively. Special relations of debtor and creditor: See 'post, sees. 3429 et sea. Mortgages: See sees. 2920 et seq. §§ U65-U72 TRANSFER. 286 § 1165. The recorder must in all cases indorse the amount of his fee for recordation on the in- strument recorded. [New section approved March 11, 1874; Amendments 1873-4, p. 274. In effect sixty days after passage.] Recorders: Polit. Code, sees. 4235 et seq. ARTICLE II. MODE OF RECORDING. § 1169. In what office. § 1170. Instrument, when deemed recorded. § 1171. Books of record. § 1172. Duties of recorder. § 1173. Transfer of vessels. § 1169. Instruments entitled to be recorded must be recorded by the county recorder of thf county in which the real property affected there- by is situated. § 1170. An instrument is deemed to be record- ed, when, being- duly aclvuowledged or proved, and certified, it is deposited in the recorder's office with the proper officer for record. [Amendment approved March 30, 1874; Amendments 1873-4, p. 226. In effect July 1, 1874.] Recording: See, for general consideration of the subject, sec. 1158, ante. § 1171. Grants, absolute in terms, are to be re- corded in one set of books, and mortgages in an- other. § 1172. The duties of county recorders, in re- spect to recording instruments, are prescribed by the Political Code. Recorders: See Polit. Code, sees. 4235 et seq. 287 TRANSFER 99 U73-U80 § 1173. The mode of recoidiDg transfers of ships registered under the laws of the United States is regulated by acts of Congress. See U. S. Rev. Stats., sees. 4131 et seq. ARTICLE III. PROOF AND ACKNOWLEDGMENT OF INSTRUMENTS. 9 1180. By whom acknowledgments may be taken In this State. § 1181. Same. § 1182. By whom taken without the State. By whom taken without the United States. Deputy can take acknowledgment. Requisites for acknowledgment. Acknowledgment by married women. Conveyance by married woman. Officer must indorse certificate. § 1189. General form of certificate. § 1190. Form of acknowledgment by corporation. 9 1191. Form of certificate of acknowledgment by married women. § 1192. Form of certificate of acknowledgment by attorney in fact. 9 1193. Officers must affix their signatures. § 1194. Certificate of authority of justices in certain cases. § 1195. Proof of execution, how made. |§ 1196. Witness must be personally known to officer, '§ 1197. Witness must prove, what. Handwriting may be proved, when. Evidence must prove, what. Certificate of proof. Officers authorized to do certain things. When instrument is improperly certified, party may j have action to correct error. \\ 1203. In certain cases parties interested may obtain judg- [ ment of proof of an instrument. J! 1204. Effect of judgment in such action. ji 1205. Conveyances heretofore made to be governed by then existing laws. ;i 1206. Recording, and as evidence, to be governed by then ' existing laws. I 1207. Certified copies as evidence. Records, what notice I deemed from. ' § 1180. The proof or acknowledgment of an in- Itrument mny be made at any place within this ^tato before a justice or clerli of the Supreme §§ 1181-1183 TRANSFER. 288 Court or a judge of the Superior Court. [Amend- ment approved April 3, 1880; Amendments 1880, p. 2. In effect immediately.] Act legalizing defective aclinowledgments: See post, Appendix, pp. 702 et seq. Act to legalize acknowledgments taken by court commissioners: See post. Appendix, p. 702. § 1181. The proof or acknowledgment of an in- strument may be made in this state, within the city, city and county, county, or district for which the officer was elected or appointed, before either, 1. A clerk of a court of record; or, 2. A county recorder; or, 3. A court commissioner; or, 4. A notary public; or, 5. A justice of the peace. [Amendment approv- ed March 31, 1891; Stats. 1891, p. 214.] Act to legalize acknowledgments taken by court commissioners: See post. Appendix, p. 702. Acknowledgment by deputy: See sec. 1184, post. § 1182. The proof or acknowledgment of an instrument may be made without this State, but within the United States, and within the jurisdic- tion of the officer, before either: 1. A justice, judge, or clerk of any court of record of the United States; or, 2. A justice, judge, or clerk of any court of rec- ord of any State; or, 3. A commissioner appointed by the governor of this State for that purpose; or, 4. A nvytary public; or, 5. Any other officer of the State where the ac- know^ledgment is made authorized by its laws to take such proof or acknowledgment. The word "state" includes "territory": See sec. 14, subd. 12. § 1183. The proof or acknowledgment of an 289 TRANSFER. §§ U84, 1185 instruiiieut may bo made without the United States, before either: 1. A minister, commissiouer. or charge d'aCfaires of the United States, resident and accredited in the country where the proof or aclinowledgment is made; or. 2. A consul, vice-consul, or consular agent of the United States, resident in the country where the proof or aclcnowledgment is made; or, 3. A judge of a court of record of the country where the proof or acknowledgment is made; or, 4. Commissioners appointed for such purposes by the governor of the State, pursuant to special statutes; or. 5. A notary public. [Amendment approved March 30, 1874; Amendment 1873-4, p. 227. In ef- fect July 1, 1874.] § 1184. "When any of the officers mentioned in the four preceding sections are authorized by law ito appoint a deputy, the acknow^ledgment or proof 'may be taken by such deputy, in the name of his ',;)riucipal. § 1185. The acknowledgment of an instru- nent must not be taken, unless the officer taking 't knows, or has satisfactory evidence, on the |»ath or aliirmation of a credible witness, that the ')erson making such acknowledgment is the indi- '•idual who is described in and who executed the Instrument; or, if executed by a corporation, that he person making such acknowledgment is the ) resident or secretary of such corporation. i Acknowledgments of married women: See next i?ction. The official character of tlie certifying officer Civ. Codp.-25. §§ llSt5-US$ TKAN-^FKK. 2S>0 sihould apiHVir ft\^m the cert it\ oat o: $eo, 118S, post. Aiitbontioation of sijinaturc: St^ !^5t^o. lli>:^ v>o$t. Oorrootiusr «.vrtiftoato: St>e $oc. I2i^2, post. § llSd. Kovvaled March 19, Ij^l ; Stats. 1S91, p. K-T.l § 1187. A ovniTovauoe by a married vroman has the same effect as if she were unmarried, and may l>e acknovrledsred in tht^ same manner. [Amend- ment, appr\>veil March 19. 1801; Stats. 1891. p. lo7. In effe«.'t .Inly 1. 18l>l.l § 11 SS. An officer taking the acknovr lodgment of an instrument must indorse thereon, or attach thereto, a certificate substantially in the forms hereinafter prescribed. [Amendment approved March 30, 1S74; Amendments l$7;>-4, p. 227. In effect July 1. 1S74.] Official character: See Code Civ. Proc. sec. 196S. § 11S9. The certificate of acknowleilgment, un- less it is otherrrise in this article provided, must be stibstantially in the following form: ''State of . County of . ss. On this day of . in the year . before me sonally appeared . known to me (or proved to me on the i\ to be the person whose name is subscribed to the within instru- ment, and acknowledged that he (she or they) ex- ecutoil the same." Provided, however, that any acknowledgment taken without this State in ac- cordance with the laws of the place where the ac- »1 TRANSFER. 55 USC-Htl knowledgment is made, shall be suflBcient in this State; and provided funher. that the certificate of the clerk of a court of record of the county or district where such acknowledgment is taken, that the oflBcer certifying to the same is authorized by law so to do. and that the signature of the said officer to such certific-ate is his true and gen- uine signature, and that such acknowledgment la taken in accordance with the laws of the place where the same is made, shall be prima facie evi- dence of the facts stated in the certificate of said clerk. [Approved February 26, 1S97. ch. XL VI.] This section was also amended in March, IS&l; Stats. 1S91. p. 137. i 1190. The certificate of acknowledgment of an instrument executed by a coriwration 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 offi- cer], personally appeared , known to me [or proved to me on the oath of ] to be the presi- dent [or the secretary] of the corporation that exe- cuted the within instrument, and acknowledged to ,me that such corporation executed the same. if 1191. [Repealed March 19, 1891: Stats. 1891, p. 137. In effect July 1. 1S91.] I 1192. The certificate of acknowledgment by an anorney in fact must be substantially in the ^"ll'^wing form: ^ "e of . County of On this day of . in the year . before ne [here insert the name and quality of the offi- cer], personally appeared , known to me [or §§ 1193-1196 TRANSFER. 292 proved to me on the oath of ] to be the per- son whose name is subscribed to the within instru- ment as the attorney in fact of , and acknowl- edged to me that he subscribed the name of thereto as principal, and his own name as attor- ney in fact. § 1193. Officers talking and certifying ac- knowledgments or proof of instruments for re- cord, must authenticate their certificates by af- fixing thereto their signatures, followed by the names of their offices; also, their seals of office, if by the laws of the State or country where the acknowledgment or proof is taken, or by author- ity of which they are acting, they are required to have official seals. § 1194. The certificate of proof or acknowledg- ment, if made before a justice of the peace, when used in any county other than that in which he resides, must be accompanied by a certificate un- der the hand and seal of the clerk of the county in which the justice resides, setting forth that such justice, at the time of talking such proof or acknowledgment, was authorized to take the same, and that the clerk is acquainted with his hand- writing, and believes that the signature to the original certificate is genuine. § 1195. Proof of the execution of an instru- ment, when not acknowledged, may be made either: 1. By the party executing it. or either of them; or. 2. By a subscribing witness; or, 3. By other witnesses, in cases mentioned in section 1198. § 1196. If by a subscribing witness, such wit- ness must be personally known to the officer tak- 2«3 TRANSFER. §§ 1197-1199 ing the proof to be the person whose name is Bubscribed to the instrumeut as a witness or must be proved to be such by the oath of a credible witness. § 1197. The subscribing^ witness must prove that the person whose name is subscribed to the instrument as a party is the person described in It, and that such person executed it, and that the witness subscribed his name thereto as a witness. § 1198. The execution of an instrument may be established by proof of the handwriting of the party and of a subscribing witness, if there is one, in the following cases: 1. When the parties and all the subscribing witnesses are dead; or, 2. When the parties and all the subscribing witnesses are nonresidents of the State; or, 3. When the place of their residence is un- known to the party desiring the proof, and can- not be ascertained by the exercise of due dili- gence; or. ; 4. When the subscribing witness conceals him- self, or cannot be found by the officer by the ex- 'ercise of due diligence in attempting to serve the subpoena or attachment; or, '5. In case of the continued failure or refusal bf the witness to testify, for the space of one hour lifter his appearance. 1 I § 1199. The evidence taken under the preced- ing section must satisfactorily prove to the offl- '?er the following facts: 1 1. The existence of one or more of the condi- jions mentioned therein; and, , 2. That the witness testifying knew the person vhose nnme purports to be subscribed to the in- jtrument ns a imrty. and is well acquainted with Ills signature, and that it is genuine; and, §§ 1200-1203 TRANSFER. 294 3. That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signa- ture, and that it is genuine; and, 4. The place of residence of the witness. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 227. In effect July 1, 1874.] Proving handwriting, generally: See Code Civ. Proc, sees. 1315, 1943-1946. § 1200. An officer taking proof of the execution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the mat- ters required by law to be done or known by him, or proved before him on the proceeding, together with the names of all the witnesses examined be- fore him, their places of residence respectively, and the substance of their testimony. § 1201. Officers authorized to take the proof of instruments are authorized in such proceed- ings: 1. To administer oaths or affirmations, as pre^ scribed in section 2093, Code of Civil Procedure; 2. To employ and swear interpreters; 3. To issue subpoena, as prescribed in sectioi 1986, Code of Civil Procedure; 4. To punish for contempt, as prescribed in sec- tions 1991, 1993, 1994, Code of Civil Procedure. The civil damages and forfeiture to the partj aggrieved are prescribed in section 1992, Code ol Civil Procedure. § 1202. When the acknowledgment or proof ol the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the District Court to obtain a judgment correcting the certificate. § 1203. Any person interested under an instru- J95 TRANSFER, §9 1204-1207 meut entitled to be proved for record may insti- tute an action in the District Court against the proper parties to obtain a judgment proving such instrument. § 1204. A certified copy of tlie judgment in a proceeding instituted under eitlier of tlie two pre- ceding sections, showing the proof of the instru- ment, and attached thereto, entitles such instru- ment to record, with lilce effect as if aclinowl- sdged. § 1205. The legality of the execution, acknowl- edgnu'Ut, proof, form, or record of any conveyance )r other instrument made before this Code goes nto effect, executed, aclcnowledged, proved, or recorded is not affected by anything contained in this chapter, but depends for its validity and le- gality upon the laws in force when the act was jerformed. I § 1206. All conveyances of real property made l^efore this Code goes into effect, and acknowl- i'dged or proved according to the laws in force lit the time of such malting and aclvuowledgment ,)r proof, have the same force as evidence, and nay be recorded, in the same manner and with ,he like effect, as conveyances executed and ac- iinowledged in pursuance of this chapter. 1 § 1207. Any instrument affecting real property, yhich was, previous to the first day of January, I'Ue thousand eight hundred and ninety-seven, opied into the proper book of record, kept in the ;ffice of any County Recorder, shall be deemed to 'tnpart. after that date, notice of its contents to |ubsequent purcliasers and incumbrancers, not- withstanding any defect, omission, or informality \i the execution of the instrument, or in the cer- liflcate of acknowledgment tliereof, or the ab- §§ 1213, 1214 TRANSFER. 296 sence of any such certificate; but nothing herein shall be deemed to affect the rights of purchasers or incumbrancers previous to that date. Duly certified copies of the record of anj^ such instru- ment may be read in evidence with like effect as copies of an instrument duly acl^nowledged and recorded; provided, it be first shown that tke original instrument was genuine. [Amendment approved March 4, 1897, chapter LXXIV. The original of this section was a new section ap- proved March 30, 1S74; Amendments 1873-4, p. 228. ARTICLE IV. EFFECT OF RECORDING OR THE WANT THEREOF. § 1213. Record, where and to whom notice. § 1214. Conveyances to be recorded, or are void, &c. § 1215. Conveyance defined. § 1216. Powers of attorney, how revoked. § 1217. Unrecorded instrument valid between the parties. § 1213. Every conveyance of real property, ac- knowledged or proved, and certified, and record- ed, as prescribed by law, from the time it is filed with the Recorder for record, is constructive no- tice of the contents thereof to subsequent pur- chasers and mortgagees; and a certified copy of any such recorded conveyance may be recorded in any other county, and when so recorded the record thereof shall have the same force and ef- fect as though it was of the original conveyance. [Amendment approved March 3, 1897; Stats. 1897, ch. LXVIII.] Recording dates from time of deposit: See ante, sec. 1170. § 1214. Every conveyance of real property, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part 297 TRANSFER. §§1215-1217 thereof, in good faith and for a valuable consider- ation, whose convoynnce is first duly recorded, and as against any judgment affecting the title, un- less such conveyance shall have been duly re- corded prior to the record of notice of action. '[Amendment approved March 12, 1895; Stats. I 1805, p. 50. In effect in sixty days.] Intent to defraud purchasers avoids deed: See sec. 1227, post. When purchaser deemed to have notice: See sec. 1217, post. I § 1215. The term "conveyance," as used in isections 1213 and 1214, embraces every instrument lin writing by which any estate or interest in real property is created, alienated, mortgaged, or en- cumbered, or by which the title to any real prop- erty may be affected, except wills. >^ 1216. No instrument containing a power to ?onvey or execute instruments affecting real prop- erty, which has been recorded, is revoked by any act of the party by whom it was executed, un- less the instrument containing such revocation is ilso acknowledged or proved, certified and re- corded, in the same office in which the instrument ,'ontaining the power was recorded. ■ § 1217. An unrecorded instrument is valid as between the parties thereto and those who have iiotice thereof. 5§ 1227-1229 TRANSFER. 298 CHAPTER V. UNLAWFUL TRANSFERS. § 1227. Certain instruments void against purchasers, &c. § 1228. Not void agaiust purchaser having notice, unless fraud is mutual. § 1229. Power to revoke, when deemed executed. § 1230. Same. § 1231. Other provisions. § 1227. Every instrument, other than a will, affecting an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or incumbrancers thereon, is void as against every purchaser or in- cumbrancer, for value, of the same property, or the rents or profits thereof. Transfers in fraud of creditors: See sec. 3439, Dost. Fraudulent intent is question of fact: See sec. 3442, post. § 1228. No instrument is to be avoided under the last section, in favor of a subsequent pur- chaser or incumbrancer having notice thereof at the time his purchase was made, or his lien ac- quired, unless the person in whose favor the in- strument was made was privy to the fraud in- tended. § 1229. Where a power to revoke or modify an instrument affecting the title to, or the enjoy- ment of an estate in real property, is reserved to the grantor, or given to any other person, a sub- sequent grant of, or charge upon, the estate, by the person having the power of revocation, in fn vor of a purchaser or incumbrancer for value, operates as a revocation of the original instru- jyj HOMESTEADS. §§ 1230. 1231 iiiciit, to the extent of the power, iu fiivor of such l)iiichaser or incumbrancer. ^ 1230. Where a person having a power of rev- M Ml ion, within the provisions of the last section, ,is not entitled to execute it until after the time at which he makes such a grant or charge as is loscribed in that section, the power is deemed to M> executed as soon as he is entitled to execute it. ij 1231. Other provisions concerning unlawful ,ransfers are contained in Part II., Division b^'ourth, of this Code, concerning the Special Rela- iions of Debtor and Creditor. See sees. 34, 39, post. TITLE V. HOMESTEADS. i^hapter I. General Provisions, §§ 1237-1261. ' II. Homestead of the Head of a Family, §§ 12G2-1265. III. Homestead of other Persons, §§ 1266- 1269. CHAPTER I. GENERAL PROVISIONS. 1237. Homestead, of what It consists. '1238. From what it may be carved. 1 1239. From what not. 11240. Exempt from forced sale. '1241. Subject to, when. ;1242. How conveyed or incumbered. }1243. How abandoned. 1244. Same. 11245. Proceedings on execution against homestead. !1246. Same .1247. Same. 11248. Same. |1249. Same. §§ 1237-1239 HOMESTEADS. 30g § 1250. Same. § 1251. Same. § 1252. Same. § 1253. Same. § 1254. Same. § 1255. Same. § 1256. Same. § 1257. After sale, money equal to homestead exemption protected. § 1258. Compensation of appraisers. § 1259. Costs. § 1260. Who may select homestead, value of. § 1261. Head of family defined. § 1237. The homestead consists of the dwell- ing-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided. [Amendment approved March 30, 1874; Amendments 1873-4, p. 228. In effect July 1, 1874.] Homesteads— Constitutional protection: See art. 17, sec. 1. Selection of homestead: Sec. 1262, post. Exemption of homestead: Sees. 1240, 1241, infra. Setting apart homestead for decedent's family: Code Civ. Proc, sees. 1465, et seq. Abandonment of homestead: Sec. 1243, infra. § 1238. If the claimant be married, the uome- stead may be selected from the community prop- erty, or the separate property of the husband, or, with the consent of the wife, from her separate property. When the claimant is not married, but is the head of a family, within the meaning of section one thousand two hundred and sixty-one. the homestead may be selected from any of his or her property. [Amendment approved March 30. 1874; Amendments 1873-4, p. 229. In effect July 1, 1874.] § 1239. The homestead cannot be selected from the separnte property of the wife without her consent, shown by her mailing, or .I'oining in , . 1 HOMESTEADS. §§ 1240-1243 making, the declaration of homestead. [Ameud- 11 lent approved March 30, 1874; Amendments 1873- 4, p. 22i>. In effect July 1, 1874.] § 1240. The homestead is exempt from exe- cution or forced sale, except as in this title pro- vided. § 1241. The homestead is subject to execution or forced sole in satisfaction of judgments ob- 1 tained : I 1. Before the declaration of homestead was [filed for record, and which constitute liens upon the premises; i 2. On debts secured by mechanics, contractors, i subcontractors, artisans, architects, builders, la- borers of every class, materialmen's or vendors' liens upon the premises; : 3. On debts secured by mortgages on the prem- 'Ises, executed and acknowledged by the husband .and wife, or by an unmarried claimant; ; 4. On debts secured by mortgages on the prem- ises, executed and recorded before the declara- tion of homestead was filed for record. [Amend- ■ment approved March 9, 1887; Stats. 1887, p. 81. In effect immediately.] Mortgage of: See next section. I § 1242. The homestead of a married person '?annot be conveyed or incumbered, unless the in- strument by which it is conveyed or incumbered 8 executed and acknowledged by both husband lind wife. ■ See section 1241, subd. 3, 4. Act ennbling parties to alienate and incumber inmesteads: See post. Appendix, p. 771. ; § 1243. A homestead can be abandoned only >y a declnrntion of abandonment, or a grant hereof, executed and acknowledged: Civ. Code. -26. §§ 1244-1249 HOMESTEADS. 302 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried. § 1244. A declaration of abandonment is ef- fectual only from the time it is filed in the office in which the homestead was recorded. § 1245. When an execution for the enforce- ment of a judgment obtained in a case not within the classes enumerated in section 1241, is levied upon the homestead, the judgment creditor may apply to the Superior Court of the county in which the homestead is situated for the appoint- ment of persons to appraise the value thereof. [Amendment approved April 6, 1880; Amend- ments 1880, p. 7. In effect immediately.] Value of homestead: See sec. 12G3. § 1246. The application must be made upon a verified petition, showing: 1. The fact that an execution has been levied upon the homestead; 2. The name of the claimant; 3. That the value of the homestead exceeds the amount of the homestead exemption. § 1247. The petition must be filed with the clerk of the Superior Court. [Amendment ap- proved April 6, 1880; Amendments, 1880, p. 8. In effect immediately.] § 1248. A copy of the petition, with a notice of the time and place of hearing, must be served upon the claimant, at least two days before the hearing. § 1249. At the hearing the judge may, upon proof of the service of a copy of the petition and notice, and of the facts stated in the peti- ■M HOMESTEADS. §§ 1250-1256 tion, appoiut three disinterested residents of the county to appraise the value of the homestead. § 1250. The persons appointed, before entering niton the performance of their duties, must take an oath to faithfully perform the same. § 1251. They must view the premises and ap- praise the value thereof, and if the appraised value exceeds the homestead exemption they must determine whether the land claimed can be [divided without material injury. § 1252. Within fifteen days after thc'r appoint- ment they must make to the judge a report in writing, which report must show the appraised value and their determination upon the matter of a division of the land claimed. § 1253. If, from the report, it appears to the judge that the land claimed can be divided with- iout material injury, he must, by an order, direct ithe appraisers to set off to the claimant so much scribing witni-sses to a will Ire competent at the time of attesting its execu- ,lon. their subsequent incompetency, from what- ever cause it may arise, does not prevent the pro- late and allowance of the will, if it is otherwise atisfactorily proved. ' § 1281. A will, the validity of which is made 'y its own terms conditional, may be denied pro- ate, according to the event, with reference to M^ condition. §§ 1282-1286 WILLS. 312 Conditional devises and bequests: See sees. 1344 et seq., post. § 1282. All beneficial devises, legacies, an« gifts whatever, made or given in anj' will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same; but a mere charge on the estate of the testator for the payment of debts does not pre- vent his creditors from being competent witnesses to his will- § 1283. If a witness, to whom any beneficial devise, legacy, or gift, void by the preceding sec- tion, is made, would have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of the share as would be distributed to him, not exceeding the devise or bequest made to him in the will, and he may recover the same of the other devisees or legatees named in the will, in proportion to and out of the parts devised or be- queathed to them. [Amendment approved March 30, 1874; Amendments 1873-4, p. 232. In effect July 1. 1874.] § 1284. [Repealed March 30, 1874; Amend- ments 18-i3-4. 232. In effect July 1. 1874.] § 1285. No will made out of this State is valid as a will in this State, unless executed according to the provisions of this chapter. [Amendment approved March 30, 1874; Amendments 1873-4, p. 232. In effect July 1, 1874.] Probate of foreign wills: Code Civ. Proc. sec. 1322. § 1286. [Repealed March 30, 1874; Amend- ments 1873-4, 232. In effect July 1, 1874.] 313 WILLS. 55 1287-1280 § 1287. Tlie execiitiou of a codicil, referring to a previous will, has the effect to republish the will, as moditied bj' the codicil. § 1288. A nuncupative will is not required to be in writing:, nor to be declared or attested with Siuy formalities. How admitted to probate: Code Civ. Proc, sec. 1344. l*robatinjj: nuncupative wills: See sees. 1290. '12D1, infra. I I § 1289. To make a nuncupative will valid, and I to entitle it to be admitted to probate, the fol- ilowin£? requisites must be observed: I 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; i 3. The decedent must, at the time, have been jln actual military service in the field, or doing ;duty on shipboard at sea, and in either case in actual contemplation, fear, or peril of death; or ,the decedent must have been, at the time, in ex- 'pectation of immediate death from an injury re- ^?eived the same day. [Amendment approved iMarch 30, 1874; Amendments 1873-4, p. 233. In I'flfoct July 1. 1874.1 ' § 1290. No i^roof must be received of any nuu- •upative will unless it is offered within six months ifter speaking the testamentary words, nor unless ho words, or the substance thereof, were reduced <» writing within thirty days after they were ixiken. Trobate of nuncupative wills: See Code Civ. Mmc., sec. 1344. Civ. Code.— 27. §§ 1291-1296 WILLS. 314 § 1291. No probate of any nuncupative will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first commit- ted to writing, and process issued to call in the widow, or other persons interested, to contest the probate of such will, if they think proper. Time of probate: See Code Civ. Proc, sec. 1345. § 1292. Except in the cases in this chapter mentioned, no written will, nor any part thereof can be revoked or altered otherwise than: 1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, 2. By being burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direc- tion. Code applies to what wills: See sec. 1374, post. § 1293. When a will is cancelled or destroyed by any other person than the testator, the direc- tion of the testator and the fact of such injury or destruction, must be proved by two witnesses. § 1294. [Repealed March 30, 1874: Amend- ments 1873-4, 288. In effect July 1, 1874.] § 1295. The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. § 1296. A prior will is not revoked by a subse- quent will, unless the latter contains an express revocation, or provisions wholly inconsistent with 315 WILLS. S9 1297-1301 the terms of the former will; but iu other cases the prior will reimiins effectual so far as cousist- eut with the provisions of the subsequent will. § 1297. If, after making a will, the testator duly makes and executes a second will, the de- struction, cancellation, or revocation of such sec- ond will does not revive the lirst will, unless it appears bj- the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation, or revocation, the first will is dul. republished. § 1298. If, after having made a will, the tes- tator marries, and has issue of such marriage, born either in his lifetime or after his death, and the wife or issue survives him, the will is re- voked, unless provision has been made for such issue by some settlement, or unless such issue are . provided for in the will, or in such way men- I tloned therein as to show an intention not to make isuch provision; and no other evidence to rebut the presumption of such revocation can be received. § 1299. If. after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made I for her by marriage contract, or unless she is pro- iVided for in the will, or in such way mentioned therein as to show an intention not to make such 'provision; and no other evidence to rebut the pre- sumption of revocation must be received. § 1300. A will, executed by an unmarried wora- lan, is revoked by her subsequent marriage, and is not revived by the death of her husband. ^ 1301. An agreement made by a testator, for Mu' sale or transfer of property disposed of by §§ 1302-1305 WILLS. 316 a will previously made, does not revoke such dis- posal; but the property passes by the will, sub- ject to the same remedies on the testator's agree- ment, for a specific performance or otherwise against the devisees or legatees, as might be had against the testator s successors, if the same had passed by succession. § 1302. A charge or incumbrance upon any es- tate, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to rhe same estate which was previously exe- cuted; but the devise and legacies therein con- tained must pass, subject to such charge or in- cumbrance. ^ 1303. 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. See sees. 1304, 1311. post. Ademption of legacies: See post, sec. 1357. § 1304. If the instrument by which an altera- tion is made in the testator's interest in a thing previously disposed of by his will expresses his Intent that it shall be a revocation, or if it con- tains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such in- consistent provisions depend on a condition or con- tingency by reason of which they do not take effect. § 1305. The revocation of a will revokes all ita (•odlcils. 317 WILLS. §§ 1306-1309 § 1306. Whenever a testator has a child boru after the making of his will, either in his lifetime or after his death, and dies leaving such child un- provided for by any settlement, and neither pro- vided lor nor in any way mentioned in his will, the child succeeds to the same poriiun of the tes- tator's real and personal property that he would have succeeded to if the testator had died intes- tate. I § 1307. When any testator omits to provide in I his will for any of his children, or for the issue t of any deceased child, unless it appears that such i omission was intentional, such child, or the issue i of such child, must have the same share in the J estate of the testator as if he had died intestate, ■ and succeeds thereto as provided in the preceding section. Stats. 1850, 178, sees. 16, 17. § 1308. When any share of the estate of a ?} testator is assigned to a child born after the mak- 1 ing of a will, or to a child, or the issue of a child, ! omitted in the will, as hereinbefore mentioned, !the same must first be taken from the estate not disposed of by the will, if any; if that is not suf- 'ficient, so much as may be necessary must be taken from all the devisees or legatees, in propor- 'tion to the value they may respectively receive un- der the will, unless the obvious intention of the 'testator in relation to some specific devise or be 'quest, or other provision in the will, would there- Iby be defeated; in such case, such specific devise, 'legacy, or provision may be exempted from such apportionment, and a different apportionment, con- isistent with the intention of the testator, may be JidoDtod. ^ 1309. If such children, or their descendants. '^o improvided for, had an equal proportion of the §§ 1310-1312 WILLS. 318 testator's estate bestowed on them in the testa- tor's lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections. Advancements, question of, when raised: See Code Civ. Proc, sec. 1686. Advancements in cases of intestacy: See sees. 1395-1399. § 1310. When any estate is devised to any child, or other relation of the testator, and the de- visee dies before the testator, leaving lineal de-; scendants, such descendants talie the estate s< given by the will, in the same manner as the dev-^ isee would have done had he survived the tes-". tator. "By right of representation" defined: Sec. 1402 DOSt. Death of legatee.— Legacy fails, when: See secsj 1343. 1344. § 1311. Every devise of land in any will con^ veys all the estate of the devisor therein, whicl he could lawfully devise, unless it clearly appear by the will that he intended to convey a less es^ tate. See ante, sec. 1303. § 1312. Any estate, right, or interest in lam acquired by the testator after the mailing of hig will, passes thereby and in lilie manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appeal by the will to have been the intention of the tes-j tator. Every will made in express terms devisj ing, or in any other terms denoting the intent of the testator to devise all the real estate of sucl testator, passes all the real estate which sucl testator was entitled to devise at the time of his S19 WILLS. 5 13ia iecease. [Amendment approved March 30, 1874; A.mendments 1873-4, p. 233. In effect July 1 1874.] Testamentary dispositions vest at testator's leath: Sec. 1341, post. § 1313. No estate, real or personal, shall be bequeathed or devised to any charitable or benev )leut society, or corporation, or to aiiy person o. persons in trust for charitable uses, except thi ,;ame be done by will duly executed at least thirt;^ .lays before the decease of the testator; and i\ lo made, at least thirty days prior to such death, iuch devise or legacy, and each of them, shall be !alid; provided, that no such devises or bequests 'hall collectively exceed one-third of the estate of he testator leaving legal heirs, and in such case pro rata deduction from such devises or be- uests shall be made so as to reduce the aggregate bereof to one-third of such estate; and all dispo- itions of property made contrary hereto shall be Joid, and go to the residuary legatee or devisee, |ext of kin, or heirs, according to law. [New sec- Ion approved March 18, 1874; Amendments S73-4, p. 275. In effect immediately.] 'Charitable uses permitted by the codes: See sec. 17. ante. S 1317 WILLS. 320 CHAPTER II. INTERPRETATION OF WILLS, AND EFFECT OF VA- RIOUS PROVISIONS. i 1317. Testator's intention to be carried out. 5 1318. Intention to be ascertained from the will. § 1319. Rules of interpretation. § 1320. Several Instruments are to be taken together. § 1321. Harmonizing various parts. § 1322. In what case devise not affected. § 1323. When ambiguous or doubtful. § 1324. Words taken in ordinary sense. § 1325. Words to receive an operative construction. § 1326. Intestacy to be avoided. § 1327. Effect of technical words. § 1328. Technical words not necessary. § 1329. Certain words not necessary to pass a fee. S 1330. Power to devise, how executed by terms of will. § 1331. Devise or bequest of all real or all personal prop- / erty, or both. § 1332. Residuary clause. § 1333. Same. § 1334. "Heirs," "relatives," "issue," "descendants," &c. § 1335. Words of donation and of limitation. § 1336. To what time words refer. § 1337. Devise or bequest to a class. § 1338. When conversion takes effect. § 1339. When child born after testator's death takes under will. § 1340. Mistakes and omissions. § 1341. When devises and bequests vest. § 1342. When cannot be divested. § 1343. Death of devisee or legatee. § 1344. Interests in remainder are not affected. § 1345. Conditional devises and bequests. § 1346. Condition precedent, what. § 1347. Effect of condition precedent. § 1348. Conditions precedent, when deemed performed. § 1349. Condition subsequent, what. § 1350. Devisees, &c., take as tenants in common. } 1351. Advancements, when ademptions. § 1317. A will is to be construed according to; the intention of the testator. Where his intention | cannot have effect to its full extent, it must havej effect as far as possible. I 321 WILLS. li 1318 1323 Construction of will made before the code went Into effect not affected by the code: Sec. 1375, post Construction of foreign will: Sec. 137G, post. Declarations of testator as evidence: See next Beet ion. § 1318. In case of uncertainty arising upon the face of a will, as to the application of any of , its provisions, the testator's intention is to be as- icertained from the words of the will taking into , view the circumstances under which it w\ts made I exclusive of his oral declarations. ! § 1319. In interpreting a will, subject to the ;Iaw of this State, the rules prescribed by the fol- ;lowing sections of this chapter are to be observed, unless an intention to the contrary clearly ap- fpears. ' § 1320. Several testamentary instruments, ex- (Bcuted by the same testator, are to be taken and jconstrued together as one instrument. ; S 1321. All the parts of a will are to be con- 3trued in relation to each other, and so as, if possi- 't)le, to form one consistent whole; but where sev- '?ral parts are absolutely irreconcilable, the latter nust prevail. I § 1322. A clear and distinct devise or bequest I'annot be affected by any reasons assigned there- for, or by any other words not equally clear and jlistinct. or by inference or argument from other •mrts of the will, or by an inaccurate recital of or eference to its contents in another part of the vlll. Intention of testator: See sec. 1817. ^ 1323. Where the nienning of any part of a ill is ambiguous or doubtful, it may be explained IS 1324rl331 WILLS. 322 by any reference thereto, or recital thereof, in an- other part of the will. § 1324. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be col- lected, and that other can be ascertained. § 1325. The words of a will are to receive an j interpretation which will give to every expressioi | some effect, rather than one which will render any f of the expressions inoperative. i See sec. 1321. § 1326. Of two modes of interpreting a will, £ that is to be preferred which will prevent a total ' intestacy. § 1327. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention. § 1328. Technical words are not necessary to i give effect to any species of disposition by a will. | § 1329. The term "heirs," or other words of in- heritance, 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, ante. § 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. 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 m WILLS. 55 1332-1338 •eal or personal property which he was eutitled to lispose of by will at the time of his death. See sees. 13U3, 1311, 1312, ante. General and specific legacies: See post, sec. 1357. § 1332. A devise of the residue of the testator's •eal property passes all the real property which he fs'as entitled to devise at the time of his death, lot otherwise effectually devised by his will. Amendment approved March 30, 1874; Amend- nents 1873-4, p. 234. In effect July 1, 1874.] • § 1333. A bequest of the residue of the testa- ;or*s personal property passes all the personal "•roperty which he was entitled to bequeath at the lime of his death, not otherwise effectually be- ueathed by his will. [Amendment approved larch 30, 1874; Amendments 1873-4, p. 234. In ffect July 1, 1874. J \ § 1334. A testamentary disposition to "heirs," ^relations," "nearest relations," "representatives," iegal representatives," or "personal representa- ;ves," or "family," "issue," "descendants," jiearest" or "next of kin," of any person, with- it other words of qualification, and when the •rms are used as words of donation, and not of mitation, vests the property in those who would • t'lititled to succeed to the property of such per- il, according to the provisions of the Title on i< <('Ssion in this Code. ^ 1335. The terms mentioned in the last section '■ used as words of donation, and not of limita- ■^»n. when tlie property is given to the person so i;signated directly, and not as a qualification of t^ estate given to the ancestor of such person. iRule in Sholly's Case not adopted in this State: ^oc. 779. ante. §§ 1336-1341 WILLS. 324 § 1336. Words in a will referring to death or survivorship, simply, relate to the time of the tes- tator's death, unless possession is actually post- poned, when they must be referred to the time of possession. § 1337. A testamentary disposition to a class includes every person answering the description at the testator's death; but when the possesion is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed. Posthumous children: See infra, sec. 1339. § 1338. When a will directs the conversion of real property into money, such property and all its proceeds must be deeiied personal property from the time of the testf* tor's death. § 1339. A child conceived before, but not born i,ntil after a testator's death, or any other period when a disposition to a c'ass vests in right or in possession, talves, if answering to the description of the class. Child en ventre sa mere : See sec. 29, ante. § 1340. When, applying a will, it is found that there is an imperfect des-^ription, or that no per- son or property exactly {Answers the description, mistalies and omissions must be corrected, if the error appears from the conte::^t of the will or from i extrinsic evidence; but evidence of the declara- i tions of the testator as to his intentions cannot be received. § 1341. Testamentary dispositions, including devises and bequests to a person on attaining ma- jority, are presumed to vest at the testator's death. 3i>6 WILLS. §5 1342-1347 § 1342. A testamentary disposition, when vest- ed, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testa- tor for that purpose. § 1343. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposi- tion to him fails, unless an intention appears to substitute some other in his place, except as pro- vided in section thirteen hundred and ten. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 234. In effect July 1, 1874.] § 1344. The death of a devisee or legatee of a I limited interest before the testator's death does • not defeat the interests of persons in remainder, : who survive the testator. I § 1345. A conditional disposition is one which ' depends upon the occurrence of some uncertain • event, by which it is either to take effect or be de- 1 feated. ! Conditions of ownership: See sees. 707, ante, et Iseq. ' Conditional obligations: See sees. 1434, post, et [seq. I § 1346. A condition precedent in a will is lone which is required to be fulfilled before a par- Itlcular disposition takes effect. I ; § 1347. Where a testamentary disposition is Imade upon a condition precedent, nothing vests :until the condition is fulfilled, except where such fulfillment is impossible, in which case the dispo- 'sition vests, unless the condition was the sole mo- |tive thereof, and the impossibility was unknown o the testator, or arose from an unavoidable event ■^nl)sequent to the execution of the will. Civ. Code.— 28. §§ 1348-1351 WILLS. 326 § 1348. A condition precedent in a will is to be deemed performed when the testator's intention has been substantially, though not literally, com- plied with. § 1349. A condition subsequent is where an es- tate or interest is so given as to vest immedi- ately, subject only to be divested- by some subse- quent act or event. § 1350. A devise or legacy given to more than one person vests in them as owners in common. § 1351. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writ- ing. Advancement in cases of intestacy: See post, sees. 1395-1399. CHAPTER III. GENERAL PROVISIONS. S 1357. Nature and designations of legacies. 1. Specific; 2. Demonstrative; 3. Annuities; 4. Residuary; 5. General. § 1358. Order of sale in case of an intestate. § 1359. Order of sale in case of a testator. ? ISfiO. Legacies, how charged with debts. § 1361. Same. § 1362. Abatement. § 1363. Specific devises and legacies. § 1364. Heir's conveyance good, unless will is proved within four years. § 1365. Possession of legatees. § 1366. Bequest of interest. § 1367. Satisfaction. ? 1o'".s. Legacies, when due. § 1369. Interest. § 1370. Construction of these rules. § 1371. Executor according to the tenor. ■i-£l WILLS. SS 1357, 1368 3 1372. Power to appoint Is invalid. 5 1373. Executor not to act till qualified. § 1374. Provisions as to revocations. S 1375. Execution and construction of prior wills not af- fected. 5 1376. The law of what place applies. S 1377. Liability of beneficiaries for testator's obligations. § 1357. Lej^acies are distinguished iind desig- nated, aceording to their nature, as follows: 1. A legiKT of a particular thiug, speeilied and distinguished from all others of the same kind be- lougiug to the testator, is speeilic; if such legacy fails, resort cannot be had to the other property of the testator; 2. A legacy is demonstrative when the particu- lar fund or personal property is pointed out from which it is to be talcen or paid; if such fund or property fails, in whole or in part, resort may be had to the general assets, as in case of a general legacy; 3. An annuity is a bequest of certain specified isuras periodically; if the fund or property out of (which they are payable fails, resort may be had to the general assets, as in case of a general leg- lacy; ' 4. A residuary legacy embraces only that which remains after all the bequests of the will are dis- charged; • 5. All other legacies are general legacies. j See ante, sec. 1303. ' Annuities commence at the testator's death: Sec. ilSttS. post. I General legacies, payable when: See sec. 13G8, 'iost. i § 1358. When a person dies in^^estate all his •roperty, real and personal, without any distinc- lon between tliem, is chargeable with the pay- lent of his debts, except as otherwise provided in \\\< Code and the Code of Civil Procedure. §§ 1359, 1360 WILLS. 328 [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 234. In effect July 1, 1874.] Code Civ. Proc, sees. 1464-1486, 1516, 1519, 1562- 1563. All property chargeable with debts: Code Civ. Proc, sec. 1516. Debts to be paid from what: Code Civ. Proc, sec. 1516; sees, 1562 et seq., of the same; sec 1359, infra. Order of payment of debts: Code Civ. Proc, sec. 1643. Provision for support of the family: Code Civ. Proc, sees. 1464 et sea. 1359, 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 payment of debts, in the following order: 1. The property which is expressly appropri- ated 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. Property 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 pro- vided for. [Amendment approved March 30, 1874; Amendments 1873-4, p, 234. In effect July 1. 1874.] Code Civ, Proc, sees, 1516-1533, 1559-1560; Sales of Personal Property, Idem. sees. 1622-1653: Pay- ment of Legacies, etc.. Idem, sees, 1658-1669; lb, 1563. 1564, Payment of debts: See sections refer- red to in note to section 1358, supra. § 1360, The property of a testator, except as otherwise specially provided in this Code and the 329 WILLS. §§ 1361-1364 Code of (Jivil rrocedure, must be resorted lo for the payiiieut of legacies, iu the following order: 1. The property whieh is expressly appropri- ated by the will for the payment of the legacies; 2. I*roperty not disposed of by the will; 3. I'roperty which is devised or bequeathed to a residua r3' legatee; 4. rroi>"rty which is specilically devised or be- queathed. [Amendment approved March 30, 1874; Amendments 1ST3-4. p. 235. In effect July 1, 1874.] ' Payment of legacies,— When legacies are due: I Sec. 13G8, post; when may be paid: Code Civ. i Proc, sees. 1G58 et seq. I Legacies liable for debts: See Code Civ. Proc, I sees. 15G3 ct sea. [ § 1361. Legacies to husband, widow, or liin- dred of any class are chargeable only after lega- I cies to persons not related to the testator. I § 1362. Abatement takes place in any class I only as between legacies of that class, unless a ' different intention is expressed in the wjll. 1 § 1363. In a specific devise or legacy, the title , passes by the will, but possession can only be ob- tained from the personal representative; and he i may be authorized by the superior court to sell ithe property devised and bequeathed, in the cases J herein provided. [Amendment approved April 6, J 1880; Amendments 1880, p. 8. In effect immedi- 1 ately. ] I How title passes in cases of intestacy: See sec. "i*^^, post. 1364. The rights of a purchaser or incum- (brancor of real property, in good faith and for value, derived from any person claiming the same I'v succession, are not impaired by any devise §§ 1365-1338 WILLS. 330 made by the decedent from ^yhom succession is claimed, unless the instrument containing such de- vise 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 ap- pf-oved April 6, ISSO; Amendments 1880, p. 8. In effect immediately.] Recording will: See Code Civ. Proc, sees. 1314, 1318. § 1365. Where specific legacies are for life only, the first legatee must sign and deliver to the second legatee, or, if there is none, to the personal representative, an inventory of the property, ex- pressing that the same is in his custody for life only, and that, on his decease, it is to be deliv- ered and to remain to the use and for the benefit of the second legatee, or to the personal represen- ts ave, as the case may be. § 1366: In case of a bequest of the interest or income of a certain sum or fund, the income ac- crues from the testator's death. Annuities commence at testator's death: See. 1368, infra. Accumulations: See sec. 722 ante, et seq. § 1367. A legacy, or a gift in contemplation, k fear, or peril of death, may be satisfied before f death. [Amendment approved March 30, 1874; Amendments 1873-4, p. 235. In effect July 1, 1874.] § 1368. Legacies are due and deliverable at the expiration of one year after the testator's decease. Annuities commence at the testator's decease. Ul WILLS. 55 1369-1374 Legacies payable after four months: See sec. 1658. § 1369. Legacies bear interest from the time :wheu they are due aud payable, except that lega- cies for mainteuauce, or to the testator's widow, bear interest from the testator's decease. ! § 1370. The four preceding sections are in all ^:ases to be controlled by a testator's express in- l:eDtion. I I § 1371. Where it appears, by the terms of a ,,vill, that it was the intention of the testator to I'ommit the execution thereof and the administra- j ion of his estate to any person as executor, such Serson, although not named executor, is entitled ;o letters testamentary in like manner as if he ,iad been named executor. I Appointment of executors: See Code Civ. Proc, |iecs. 1349. 1353. j § 1372. An authority to an executor to appoint [in executor is void. 1 Executor of executor: See Code Civ. Proc, sec. ,353. ^ § 1373. No person has any power, as an exec- itor, until he qualities, except that, before let- lers have been issued, he maj' pay funeral charges ind talve necessary measures for the preservation ;f the estate. ' Qualification: See Code Civ. Proc, sees. 1349. Qualification of executor: See Code Civ. Proc, |?cs. 1353 et seq. I Payment of debts: See supra, sec. 1359. ' § 1374. The provisions of this title in relation b the revocation of wills apply to nil wills made §§ 1375-1377 WILLS. 332 by any testator living at the expiration of one year from the time it talies effect. § 1375. The provisions of tliis title do not im- pair the validity of the execution of any Tvill made before it takes effect, or affect the construction of any such will. jj § 1376. The validity and interpretation of t wills, wherever made, are governed, when rela- ting to property within this State, by the law of this State. [Amendment approved March 30, 1874; Amendments 1873-4, p. 235. In effect July 1, 1874.] § 1377. Those to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the Code of Civil Procedure. TITLE yil. SUCCESSION. § 1383. Succession defined. § 1384. Who first succeeds to possession of estates not de- vised. § 1386. Succession to and distribution of property. § 1387. Illegitimate children to inherit in certain events. § 13S8. The mother is successor to illegitimate child. § 1389-1393. Degrees of kindred, how computed. § 1394. Relatives of the half blood. I 1395. Advancements constitute part of distributive share. § 1396. Advancements, when too much, or not enough. § 1397. What are advancements. § 1398. Value of advancements, how determined. § 1399. W^hen heir, advanced to, dies before decedent. § 1400. Inheritance of husband and wife from each other. § 1401. Distribution of the common property on death of wife. § 1402. Distribution of common property on death of hus- band. § 1403. Inheritance by representation. § 1404. Aliens may Inherit, when, and how. ;3 SUCCESSION. §§ 1383-1386 140i>. Succession not claimed, attorney general to cause to be sold, and proceeds deposited. 1400. When the property and estate escheat to the State. 1407. Property escheated subject to charges as other property. 1408. Successor liable for decedent's obligations. § 1383. Succession is the coming in of another ) take the property of one who dies without dis- osiui; of it by will. § 1384. The property, both real and personal, ' one who dies \vithout disposing of it by will, asses to the heirs of the intestate, subject to the )ntrol of the probate court, and to the posses- ou of any administrator appointed by that court »r the purposes of administration. [Amendment oproved ISIarch 30, 1874; Amendments 1873-4, p. ^;6. In effect July 1, 1874.] Possession of personal representative: See Code iv. Proc, sees. 1452, 1581. § 1385. [Repealed March 30, 1874; Amend- ;ients 1873-4, 23G. In effect July 1, 1874.] '§ 1386. When any person having title to any Itate not otherwise limited by marriage contract, 'es without disposing of the estate by will, it is .'icceeded to and must be distributed unless ether- ise expressly provided in this Code and the Code ' Civil Procedure, subject to the payment of his '•bts, in the following manner: '1. If tlie decedent leave a surviving husband or life, and only one child, or the lawful issue of jie child, in equal shares to the surviving hus- ind, or wife and child, or issue of such child. If -le decedent leave a surviving husband or wife, lid more than one child living, or one child liv- ig, and the lawful issue of one or more deceased lildren, one-third to the surviving husband or ,ife, and the remainder in equal shares to his I I I .§ 1386 SUCCESSION. 334 children, and to the lawful issue of any deceased child, by right of representation; but if there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all of the descendants are in the same de- gree of kindred to the decedent, they share equal- ly, otherwise they talie according to the right of representation. If the decedent leave no sur- viving husband or wife, but leave issue, the whole > estate goes to such issue; and if such issue con- j sists of more than one child living, or one child ' living, and the lawful issue of one or more de- ceased children, then the estate goes in equal ! shares to the children living, or to the child living, ' and the issue of the deceased child or children by right of representation; 2. If the decedent leave no issue, the estate goes one-half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either be dead the whole of said half goes to the other. If there be no father or mother, then one-half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation. If the decedent leave no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either be dead then to the other; 3. If there be neither issue, husband, wife, fath- er, nor mother, then in equal shares to the broth- ers and sisters of the decedent, and to the chil- dren of any deceased brother or sister, by right of representation: 5. If the decedent leave a surviving husband or wife, and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife: 6. If the decedent leave neither issue, husband, wife, father, mother, brother, nor sister, the es- SUCCESSION. § 1386 1,1 If iiiiist jro to the next of kiu, iu e(iunl degree, ■\((l)tiDi,' that wlien there are two or more col- l,ii( ral kiudred, iu equal degree, but ohiiniiug liiough dilTereut ancestors, those who claimed li rough the nearest ancestors must be preferred n iliose claiming through an ancestor more re- nntc; 7. If the decedent leave several children, or lilt' child and the issue of one or more children, mil any such surviving child dies under age, and K't Iiaving been married, all the estate that came i I he deceased child by inheritance from such de- ' dent descends in equal shares to the other chil- ^Iren of the same parent, and to the issue of any 'mch other children who are dead, by right of tpieseutatlon; ^. If, at the death of such child, who dies under ige, not having been married, all the other chil- liren of his parents are also dead, and any of vhem have left issue, the estate that came to such i?hild by inheritance from his parent descends to I he issue of all other children of the same parent; !ind if all the issue are in the same degree of kin- !lred to the child, they share the estate equally, Otherwise they take according to the right of rep- '•esentation: 9. If the decedent be a widow or widower, and jeave no kindred, and the estate or any portion ; hereof was common property of such decedent, 'nd his or her deceased spouse, while such a spouse ivas living, such common property shall go to the lather of such deceased spouse, or if he be dead, ,0 the mother. If there be no father nor mother, ;hen such property shall go to the brothers and ilsters of such deceased spouse, in equal shares, i-ud to the lawful issue of any deceased brother (•r sister of such deceased spouse, by right of rep- f^«»ntation; 1". If tlie (lece. or §§ 1387-1388 SUCCESSION. 33' kindred, and there be no heirs to take his estate or any portion thereof, under subdivision nicp of this section, the same escheats to the State tor the support of common schools. [Amendment ap- proved April 23, 1S80; Amendments 1880, 14. In effect immediately.] The original section was founded on Stats. 1850, 219, sec. 1; 1862, 569, sec. 1. Administration of intestates' estates: See Code Civ. Proc, sees. 1365 et seq. What is a testament: See Code Civ. Proc. sees. 1312 and 1365. § 1387. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is am heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock: but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermar-' ried, and his father, after such marriage, ac- knowledges him as his child, or adopts him into his family; in which case such child and all the; legitimate children are considered brothers and sisters, and on the death of either of them, intes- tate, and without issue, the others inherit his es- tate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legiti- mate; saving to the father and mother respective- ly their rights in the estates of all the children in like manner as if all had been legitimate. The is- sue of all marriages null in law or dissolved by divorce, are legitimate. Stats. 1850, 219, sec. 2. § 1388. If an illegitimate child, who has not 7 SUCCESSION. §§ 1389-1393 been ac'kuowied^'C'd or adoiited by bis fatber, dies intestate, witbout lawful issue, bis estate jjoes to bis niotlier, or, iu case of ber decease, to ber beirs at law. Stats. 1850, 220, sec. 3, modified by addius "bas not been acknowledged or adopted by bis fatber." § 1389. Tbe degree of kindred is establisbed by the number of generations, and eacb generation is 'called a degree. I Stats. 1850. 221. sec. 4. [ § 1390. Tbe series of degrees forms the line; |the series of degrees between persons who de- scend from one another is called direct or lineal bonsanguinity; and tbe series of degrees between ;pers()ns who do not descend from one another, but ispring from a common ancestor, is called tbe col- 'Aateral line or collateral consanguinity. } Stats. 1850. 221. sec. 5. I I § 1391. The direct line is divided into a direct line descending and a direct line ascending. Tbe lirst is that which connects the ancestors with Ihose who descend from him. The second is that (.vhich connects a person with those from whom lie descends. , § 1392. In the direct line there are as many de- ■crees as there are generations. Thus, the son is. vith regard to tbe father, in tbe first degree; tbe ':ran(|son in the second; and vice versa with re- |:ard to tbe fatber and grandfather toward the •ons and grandsons. i § 1393. Tn the collateral line the degrees are jounted by generations from one of tbe relations :P to tbe common ancestor, and from tbe common incestor to tbe other relations. In such computa- llon tbe decedent is excluded, the relative includ- Clv. Code.-29. §§ 1394-1397 SUCCESSION. 338 ed, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins german in the fourth, and so on. § 1394. Kindred of the half blood inherit equal- , ly with those of the whole blood in the same de- j gree, unless the inheritance come to the intes- ' tate by descent, devise or gift of some one of his ancestors, in which case all those who are not of , the blood of such ancestor must be excluded from :i such inheritance. I Kindred of half blood as administrators: See i Code Civ. Proc, sec. 1366. Stats. 1850, 221, sec. 4. § 1395. Any estate, real or personal, given by ;, the decedent in his lifetime as an advancement to ■' any child, or other lineal descendant, is a part of the estate of the decedent for the purposes of di- vision and distribution thereof among his issue, i and must be taken by such child, or other lineal t| descendant, toward his share of the estate of the ' decedent. I Advancements: See sees. 1309, 1351, ante. § 1396. If the amount of such advancement ex- ^ ceeds the share of the heir receiving the same, he c must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. § 1397. All gifts and grants are made as ad- vancements, if expressed in the gift or grant to be so made, or if charged in writing by the dece- . dent as an advancement, or acknowledged in writ- ij 339 SUCCESSION. §§ 1398-1402 iu^ as such, by the child or other successor or heir. § 1398. If the value of the estate so advanced is expressed iu tlie conveyance, or in the charge thereof made l)y the decedent, or in tlie aclvnowl- edgnient of the party receiving it, it must be held as of that value in the division and distribu- tion of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained. : § 1399. If any child, or other lineal descend- |int receiving advancement, dies before the dece- |lent, leaving issue, the advancement must be iaken into consideration in the division and dis- tribution of the estate, and the amount thereof -nust be allowed accordingly by the representa- ' ives of the heirs receiving the advancement, in 'ike manner as if the advancement had been made llirectly to them. I § 1400. The provisions of the preceding sec- ■ions of this title, as to the inheritance of the hus- ;)and and wife from each other, apply only to the ,eparate property of the decedents. \ . § 1401. Upon the death of the wife, the entire jOmnumity property, without administration, be- i'>ngs to the surviving husband, except such por- ion thereof as may have been set apart to her by indlcial decree, for her support and maintenance, i.'hich i>ortion is subject to her testamentary dis- ;ositi()n, and iu the absence of such disposition, ^oes to her descendants, or heirs, exclusive of her jusband. [Amendment approved Marcli o(\ 1874; Aniendments 1873-4. 288. In effect .Inly 1. 1874.1 ■ § 1402. Tpon the death of the husband, one- t alf o f the community property goes to the sur- §§ 1403-1405 SUCCESSION. 340 viving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his de- scendants, equally, if such descendants are in the same degree of liindred to the decedent; other- wise, according to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of ad- ministration. Community property defined: Sees. 163, 164, ante. § 1403. Inheritance or succession "by right of representation" takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would hare taken if living. Posthumous chil- dren are considered as living at the death of their parents. See sec. 1310, ante. § 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 precluded from such succession by reason of the alienage of any relative; but no nonresident for- eigner can talvc by succession unless he appears and claims such succession within five years after the death of the decedent to whom he claims suc- cession. Aliens may take by succession: See sees. 671, 672, ante. § 1405. When succession is not claimed as pro-ijj vided in the preceding section, the district court,l| 341 SUCCESSION. §§ 1406-1408 oil inforination, must direct the Attorney General to reduce the proiierty to bis 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 benelit of such non- resident foreiirner, or his le^^^al representative, to be paid to him whenever, within live years after such deposit, proof to the satisfaction of the State Comptroller and Treasurer is produced that he is I entitled to succeed thereto. • § 1406. "U'hen so claimed, the evidence and the tjoint (uder of the Comptroller and Treasurer must ibe tiled by the Treasurer as his voucher, and tne •property delivered or the proceeds paid to the iclaimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent devolves and escheats to the people of the State, and is placed by the State Treasurer to the credit of the [school fund. 1 § 1407. Real property passing to the State un- |ler the last section, whether held by the State or ;ts officers, is subject to the same charges and rusts to which it would have been subject if it 'lad passed bj^ succession, and is also subject to ill the provisions of Title VIII., Tart III., of the pode of Civil Procedure. [Sees. 1269-1272.] I § 1408. Those who succeed to the property of II decedent are liable for his obligations in the itises and to the extent prescribed by the Code of (Mvil I'rocedure. [§§ 1298-1809.] §5 1410-1412 WATER RIGHTS. 342 TITLE VIII. WATER RIGHTS. § 1410. Rights to water may be acquired by appropriation. § 1411. Appropriation must be for a useful purpose. § 1412. Point of diversion may be changed. § 1413. Water may be turned into natural channels. § 1414. First in time, first in right. § 1415. Notice of appropriation. § 1416. Diligence in appropriating. § 1417, Completion defined. § 1418. Doctrine of relation applied. § 1419. Forfeiture. § 1420. Rights of present claimant. § 1421. Recorder to keep book in which to record notices. § 1422. Prior title not to affect rights of riparian proprie- tors. § 1410. The right to the use of running water flowing in a river or stream, or down a canyon or ravine, may be acquired by appropriation. See Polit Code, sec. 3446. Acts relating to irrigation: Statutes in force, ti- tle. Irrigation. Rights of appropriators as between themselves: See sec. 1414. Riparian rights affected by appropriation: See sec. 1422. Posting notice: Sees. 1415 et seq. § 1411. The appropriation must be for some useful or beneficial purpose, and when the appro- priator or his successor in interest ceases to use it for such a purpose, the right ceases. Appropriation must be evidenced by physical acts: See sec. 1416. Amount of property appropriated : See sec. 1415. § 1412. The person entitled to the use mayi change the place of diversion, if others are not 343 WATER RIGHTS. §§ 1413-1416 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. § 1413. The water appropriated may be turned Into tlie channel of another stream and mingled with its water, and then reclaimed; but in reclaim- np it the water already appropriated by another must not be diminished. ! § 1414. As between appropriators, the one first in time is the first in right. ! When right begins: See sec. 1418. I Use of water, nature of: See sec. 1411. i Change of use: See sec. 1412. Bights of appropriators as against the govern- inent and its grantees: See sec. 1410. ' § 1415. A person desiring to appropriate water nust post a notice, in writing, in a conspicuous jtlace at the point of intended diversion, stating [herein: [ 1. That he claims the water there flowing to the ;xtent of (giving the number) inches, measured inder a four-inch pressui'e; 2. The purposes for which he claims it, and the lace of intended use; 1 3. The means by which he intends to divert I, and the size of the flume, ditch, pipe, or aque- |uct in which he intends to divert it; I A copy of the notice must, within ten days after I Is posted, be recorded in the office of the record- " of the county in which it is posted. 1416. Within sixty days after the notice is i)sted the claimant must commence the excava- lon or construction of the worlvS in which he In- inds to divert the water, and must prosecute the §§ 1417-1422 WATER RIGHTS. 344 work diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain; provided, tliat if the erection of a dam has been recommended by the California Debris Commis- sion at or near the place where it is intended to divert the water, the claimant shall have sixty days after the completion of such dam in which to commence the excavation or construction of the works in which he intends to divert the water. [Amendment approved March 23, 1895; Stats. 1895, 70. In effect immediately.] Time from which right of appropriation becomes vested: See sec. 1418. § 1417. By "completion" is meant conducting the waters to the place of intended use. § 1418. By a compliance with the above rules the claimant's right to the use of the water relates back to the time the notice was posted. § 1419. A failure to comply with such rules de prives the claimants of the right to the use of th( water as against a subsequent claimant who com plies therewith. 2 § 1420. Persons who have heretofore claimet* the right to water, and who have not constructor works in which to divert it, and who have no diverted nor applied it to some useful purpos( must, after this title takes effect, and withi twenty days thereafter, proceed as in this titl provided, or their right ceases. § 1421. The recorder of each county must kee a book, in which he must record the notices pr«^ vided for in this title. § 1422. [Repealed March 15, 1887.] Acts relating to irrigation: See Statutes in fore title. Irrigation. 345 HYDRAULIC MINING. 55 1424-1426 TITLE IX. HYDRAULIC MINING. ! The Civil Code of the State of California is here- ,)y amended by addinjr thereto a new title, to be mown as title nine, of part four, of division two, ;)f said Code, to read as follows: I [Act approved March 24, 1S<)3; Stats. 1893, 3:J7.] |; 1424. Where hydraulic mining can be carried on. ! 1425. Meaning of hydraulic mining. i § 1424. The business of hydraulic mining may l»e carried on within the State of California wher- ver and whenever the same can be can-ied on Vithout material injury to the navigable streams, 'r the lands adjacent thereto. § 1425. Hydraulic mining, within the meaning |f this title, is mining by means of the applica- 'lon of water, under pressure, through a nozzle, gainst a natural banli. DIVISION THIRD. 'Part I. Obligations in General, §§ 1427- 1543. II. Contracts, §§ 1549-1701. III. Obligations Imposed by Law; ;§ 1708-1715. IV. Obligations Arising from Par- ticular Transactions, §§ 1721- 32G8. ( PAKT I. OBLIGATIONS IN GENERAL. Intle I. Definition of Obligations, §§ 1427-1428. t II. Interpretation of Obligations, §§ 1429- I 1451. I in. Transfer of Obligations, §§ 1457-1467. 1 IV. Extinction of Obligations, §§ 1473-1543. TITLE I. DEFINITION OF OBLIGATIONS. 1 lL'7. Obligation, what. 1 IL'S. How created and enforced. ?; 1427. An obligation is a legal duty, by which .1 person is bound to do or not to do a certain ,hing. >; 1428. An obligation arises either from: 1. The contract of the parties; or, -. The operation of law. I An obligation arising from operation of law may Se enforced in the manner provided by law, or by ;ivll action, or proceeding. [Amendment approv- •d March 30, 1874; Amendments 1873-4, 239. In (Tcct July ], 1874.] Civ. Code.-30. §§ 1429, 1430 INTERPRETATION OF OBLIGATIONS. 35( TITLE II. INTERPRETATION OF OBLIGATIONS. Chapter I. General Rules of Interpretation, § 1429. II. Joint or Several Obligations, §§ 1430- 1432. III. Conditional Obligations, §§ 1434-1442 IV. Alternative Obligations, §§ 1448-1451 CHAPTER I. GENERAL RULES OP INTERPRETATION. § 1429. General rules. § 1429. The rules which govern the interpreta^ i tion of contracts are prescribed by Part II. of this division. Other obligations are interpreted by th< same rules by which statutes of a similar natun are interpreted. Interpretation of contracts: See sees. 1635-1661 CHAPTER II. JOINT OR SEVERAL OBLIGATIONS. § 1430. Obligations, joint or several, &c. § 1431. When joint. § 1432. Contribution between joint parties. § 1430. An obligation imposed upon severa persons, or a right created in favor of several pei sons, may be: 1. Joint; 2. Several; or, 3. Joint and several. 361 INTERPRETATION OF OBLIGATIONS. §§ 1431-1436 § 1431. An oblij^ation imposed upon several persons, or a right created in favor of several per- sons, is presumed to be joint, and not several, ex- cept in the special eases mentioned in the Title )n tlie Interpretation of Contracts. This presump- 'lon. in the case of a right, can be overcome only jy express words to the contrary, i Promise united in by several, all of whom re- L'eive some benefit, is presumed to be joint and i'.everal: See sec. 1G59, post. I Promise in the singular, but executed by several, [s presumed to be joint and several: Sec. 1660, j»ost. 1 f 1432. A party to a joint, or joint and several 'bligation, who satisfies more than his share of he claim against all, may require a proportionate ontribution from all the parties joined with him. ' See sec. 2848, post. CHAPTER III. CONDITIONAL OBLIGATIONS. 1434. Obligation, when conditional. ,1435. Conditions, kinds of. 1436. Conditions procedent. 1437. Conditions concurrent. »1438. Condition subsequent. 11439. Performance, &c., of conditions, when essential. (1440. When performance, &c., excused. 1441. Impossible or unlawful conditions void. 11442. Conditions Involving forfeiture, how construed. 1§ 1434. An obligation is conditional, when the ghts or duties of any party thereto depend upon >' occurrence of an uncertain event. !§ 1435. Conditions may be precedent, concur- int, or subsequent. [Conditions of ownershi[): See sees. 707, 708. lite. §§ 1436-1440 INTERPRETATION OF OBLIGATIONS. 252 Conditional legacies: See ante, sees. 1345, 1346. Conditions precedent: See next section. Conditions concurrent: See sec. 1437, infra. Conditions subsequent: See sec. 1438, infra. § 1436. A condition precedent is one wliich is to be performed before some riglit dependent thereon accrues, or some act dependent thereon is performed. See sees. 707, 70S, ante. Unlawful condition precedent: See sec. 709, ante. § 1437. Conditions concurrent are those which are mutually dependent, and are to be performed at the same time. § 1438. A condition subsequent is one refeiTing j to a future event, upon the happening of which j the obligation becomes no longer binding upon th( * other party, if he chooses to avail himself of tht condition. See ante, sees. 707, 708. § 1439. Before any party to an obligation cai require another party to perform any act unde it, he must fulfill all conditions precedent thereto imposed upon himself; and must be able and of fer to fulfill all conditions concurrent so impose( upon him on the like fulfillment by the other par ty, except as provided by the next section. § 1440. If a party to an obligation gives notic to another before the latter is in default, that h will not perform the same upon his part, an does not retract such notice before the time a which performance upon his part is due, sue other party is entitled to enforce the obligatio without previously performing or offering to pe: 363 INTERPRETATION OF OBLIGATIONS. §§ 1441-1449 form any couditioiis upou his part in favor of the former party. Refusal to accept performance before the time to perform is equivalent to an offer of perform- mce and refusal: Sec 1515, post. § 1441. A condition in a contract, the fulfil- ment of which is impossible or unlawful, within the meaning,' of the Article on the Object of Con- tracts, or which is repugnant to the nature of the interest created by the contract, is void. Object of contracts: See sees. 1595, post, et seq. Unlawful conditions: See sees, 709, ante, et seq. Conditions, when impossible, within the mean- ng of above section: See sees. 1595, post, et seq. 1 § 1442. A condition involving a forfeiture must l>e strictly interpreted against the party for whose [)enefit it is created. CHAPTER IV. ALTERNATIVE OBLIGATIONS. ! 1448. Who has the right of selection. 11449. Right of selection, how lost. I 1460. Alternatives indivisible. ; 1461. Nullity of one or more of alternative obligations. I ) § 1448. If an obligation requires the perform- |nce of one of two acts in the alternative, the jarty required to perform has the right of selec- on. unless it is otherwise provided by the terms the obligation. ;§ 1449. If the party having the right of selec- !on between alternative acts does not give no- Ice of his selection to the other party within the 'me, if any. fixed bj' the obligation for that pur- '^•'. or. if none is so fixed, before the time at §§ ]450-1458 INTERPRETATION OF OBLIGATIONS. 354 wbich the obligation ought to be performed, the rig'it of selection passes to the other party. § 1450. The party having the right of selection between alternative acts must select one of them in Hs entirety, and cannot select part of one and pan of another vrithout the consent of the other pany. § 1451. If one of the alternative acts required by an obligation is such as the law will not en- force, or becomes unlawful or impossible of per- formance, the obligation is to be interpreted as though the other stood alone. TITLE III. TRANSFER OF OBLIGATIONS. § 1457. Burden of obligation not transferable. § 1458. Rights arising out of obligation transferable. § 1459. Non-negotiable instruments may be transferred. § 1460. Covenants running with land, what. § 1461. What covenants run with land. § 1462. Same. § 1463. Same. § 1464. What covenants run with land when assigns are named. § 1465. Who are bound by covenants. § 1466. Who are not. § 1467. Apportionment of covenants. i § 1457. The burden of an obligation may b€ transferred with the consent of the party entitled to its benefit, but not otherwise, except as pro vided by section 1466. § 1458. A right arising out of an obligation v- the property of the person to whom it is due, an( may be transferred as such. Assignment of things in action: See sees. 953' 954, ante. 56 TRANSFER OF OBLIGATIONS. §§ 1459-14 03 § 1459. A non-negotiable written contract for he payment of money or personal property may )e transferred by indorsement, in lilce manner vitli ne^'otiable instrnnients. Such indorsement hall transfer all the rij^^its of the assignor under he instrument to the assignee, subject to all quities and defenses existing in favor of the mak- r at the time of the indorsement. Negotiable instruments, what are: See sees. 087, post, et seq. § 1460. Certain covenants, contained in grants f estates in real property, are appurtenant to uch estates, and pass with them, so as to bind "le assigns of the covenantor and to vest in the ssigns of the covenantee, in the same manner as ' they had personally entered into them. Such )venants are said to run with the land, i Implied covenants: See ante, sec. 1113. 1 Covenants running with land: See the succeed- |ig sections of this title, especially sees. 1462, i64. i§ 1461. The onlj' covenants which run with the •.nd are those specitied in this title, and those iliich are incidental thereto. >; 1462. Every covenant contained in a grant )' an estate in real i>roperty, which is made for jie direct benefit of the property, or some part of j then in existence, runs with the land. 1 Effect of transfers generally: See ante, sees. ^•". ct seq. § 1463. The last section includes covenants "of arrauty," "for quiet enjoyment," or for further isurance on the part of a grantor, and covenants r the payment of rent, or of taxes or assessments '<'ii iho land, on tlie part of a grantee. §§ 1464-1467 TRANSFER OF OBLIGATIONS. 356 Damages for the breach of the above covenants: See sec. 3304, post. Letter of real property to secure quiet posses- sion of the hirer: See sec. 1927, post. § 1464. A covenant for the addition of some new thing to real property, or for the direct bene- fit of some part of the property not then in exist- ence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with land so far only as the assigns thus mentioned are concerned, See ante, sec. 14G2. § 1465. A covenant running with the lane binds those only who acquire the whole estate ol the covenantor in some part of the property. § 1466. No one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the coven ant before he acquired the estate, or after he hai parted with it or ceased to enjoy its benefits. § 1467. Where several persons, holding by sev eral titles, are subject to the burden or entitled t< the benefit of a covenant running with the land it must be apportioned among them according t the value of the property subject to it held b:j them respectively, if such value can be ascer taiued. and if not, then according to their resp( tive interests in point of quantity. 07 EXTINCTION OF OBLIGATIONS. §§ 1473-1476 TITLE IV. EXTINCTION OF OBLIGATIONS. hnpter I. Performance, §§ 1473-1479. II. Offer of Performauce, §§ 1485-1505. III. Preveutioii of Performance or Offer, §§ 1511-1515. IV. Accord and Satisfaction, §§ 1521-1524. V. Novation, §§ 1.530-1533. VI. Release, §§ 1541-1543. CHAPTER I. PERFORMANCE. 117:;. Obligation extinguished by performance. ,1474. Performance by one of several joint debtors. 11475. Performance to one of joint creditors. '1476. Effect of directions by creditors. (1477. Partial performance. 1478. Payment, what. (1479. Application of general performance. I t§ 1473. Full performance of an oblij:jation, by 'le party whose duty it is to perform it, or by any I her person on his behalf, and with his assent, I accepted by the creditor, extinj^uishes it. i§ 1474. Performance of an obliijation, by one I several i)ersous who are jointly liable under it, jLtinpuishes the liability of all. 15 1475. An oblipration in favor of several per- r,ns is extlnjjulshed by performance rendered to (ly of them, except in the case of a deposit made I' owners in common, or in joint ownership, jtilch is regulated by the Title on Deposit. [ $ 1476. If a creditor, or any one of two or nre joint creditors, at any time directs the debtor §§ 1477-1479 EXTINCTION OF OBLIGATIONS. 358 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. § 1477. A partial performance of an indivis-' ible obligation extinguishes a corresponding pro- portion thereof, if the benefit of such perform-' ance is voluntarily retained by the creditor, but. not otherwise. If such partial performance is of such a nature that the creditor cannot avoid re- taining it without injuring his own property, his:' retention thereof is not presumed to be voluntary.^r § 1478. Performance of an obligation for thei. delivery of money only is called payment. § 1479. Where a debtor, under several obliga--: tious to another, does an act, by way of perform-| ance, in whole or in part, which is equally appli- J cable to two or more of such obligations, such per-i formance must be applied as follows: P 1. If, at the time of performance, the intention! or desire of the debtor that such performance- should be applied to the extinction of any particu- lar obligation, be manifested to the creditor, it must be so applied; 2. If no such application be then made, the creditor, within a reasonable time after such per- formance, may apply it toward the extinction of any obligation, performance of which was due tc him from the debtor at the time of such perform ance; except that if similar obligations were due, to him, both individually and as a trustee, he must, unless otherwise directed by the debtor, ap ply the performance to the extinction of all sucl obligations in equal proportion; and an applicatioi once made by the creditor cannot be rescindec without the consent of [the] debtor; 169 EXTINCTION OF OBLIGATIONS. § 1485 3. If neither party makes such application witu- n the time prescribed herein, the performance nust be applied to the extinction of obligations in he following order; and, if there be more than )ue obligation of a i)articular class, to the extinc- ion of all in that class, ratably: (1), Of interest due at the time of the perform- ance; . (2). Of principal due at that time; ' (3). Of the obligation earliest in date of ma- turity; [ (4). Of an obligation not secured by a lien or oUateral undertalciug; ! (5.) Of an obligation secured by a lien or col- literal undertaking. [Amendment approved [larch 30. 1874; Amendments 1873-4, 239. In ef- lect July 1, 1874.] * CHAPTER II. OFFER OF PERFORMANCE. li^.j. Obligation extinguished by offer of performance. ■-' Offer of partial performance. By whom to be made. To whom to be made. li^'J. Where offer may bo made. >1490. When offer must be made. ,1491. Same. !1492. Compensation after delay in performance. 1493. Offer to be made in good faith. 11494. Conditional offer. |1495. Ability and willingness essential. .1496. Production of thing to be delivered not necessary. Il497. Thing offered to be kept separate. J1498. Performance of condition precedent. ;1499. Written receipts. |1500. Extinction of pecuniary obligation. ,1501. Objections to mode of offer. I.'.02. Title to thing offered. Jlons. Custody of thing offered. il504. Effect of offer on accessories of obligation. '"'^'. Creditor's retention of thing which he refuses to accept. 1485. An obligation is extinguished by an 'I* of performance, made in conformity to the il 1486-1489 EXTINCTION OF OBLIGATIONS. 36( rules herein prescribed, and witli inteut to extin giiish Tlie obligation. Tender of payment: See sees. 1500, 1.504, infra Tender of article passes title: Sec. 1.502, infra find see sec. 1504. ; Duties of person making tender: See sec. 1504^ § 1486. An offer of partial perfomance Is Oj no effect. j § 1487. An offer of performance must be mad by the debtor, or by some person on his behal and with his assent. § 1488. An offer of performance must be mad to the creditor, or to any one of two or more joii creditors, or to a person authorized by one o more of them to receive or collect what is due ui der the obligation, if such creditor or authorize person is present at the place where the offer ma be made; and, if not, wherever the creditor ma be found. [Amendment approved March 30, 187 Amendments 1873-4, 240. In effect July 1, 1874 See next section. § 1489. In the absence of an express provisic to the contrary, an offer of performance may 1 made, at the option of the debtor: 1. At any place appointed by the creditor; or. 2. Wherever the person to whom the offer oug: to be made can be found; or, 3. If such person cannot, with reasonable di gence, be found within this State, and within reasonable distance from his residense or place business, or if he evades the debtor, then at t residence or place of business, if the same ca with reasonable diligence, be found ^vithin t State; or, 4. If this cannot be done, then at any pla within this State. 361 EXTINCTION OF OliLIGATIONS. 55 1490-149S Delivery of personalty: See post, sees. 1753 et seq. § 1490. Where an oblij;:ation fixes a time lor its performance, an offer of performance must be made at that time, within reasonable hours, and not before nor afterwards. § 1491. "Where an obligation does not fix the time for its performance, an offer of performance ' may be made at any time before the debtor, upon ja reasonable demand, has refused to perform. I See post, sec. 175*!, as to giving notice of time of [delivery on sales of personalty. 1 j § 1492. Where delay in performance is capable >3f exact and entire compensation, and time has Inot been expressly declared to be of the essence of the obligation, an offer of performance, accom- 'panled with an offer of such compensation, may jbe made at any time after it is due, but without Iprejudice to any rights acquired by the creditor, r hy any other person, in the mean time. ^ 1493. An offer of performance must be made II LTood faith, and in such manner as is most lilve- .\ , under the circumstances, to benefit the creditor. . § 1494, An offer of performance must be free I'rom any conditions which the creditor is not Uound, on his part, to perform. I Offer of performance upon condition: See post, jiecs. 1498. 1499. ' § 1495. An offer of performance is of no effect ;f the person making it is not able and willing to 'torform according to the offer. -^ 1496. The thing to be delivered, if any, need ,n)t in any case be actually produceil, upon an ;ffer of performance unless the offer is accepted. Civ. Code. -31. ,§§ 1497-1502 EXTINCTION OF OBLIGATIONS. 362 , § 1497. A thing, -when offered by way of per- formance must not be mixed with other things from which it cannot be separated immediately and without difficulty. Vendor of personalty must put in condition for delivery: Sec. 1753, post. § 1498. When a debtor is entitled to the per- formance of a condition precedent to, or concur- rent with, performance on his part, he may make his offer to depend upon the due performance of such condition. Conditions precedent: See ante, sec. 1439. § 1499. A debtor has a rigl^t to require ■ from i his creditor a written receipt for any property de- i livered in performance of his obligation. See also Code Civ. Proc, sec. 2075. § 1500. An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor, with some banlx of deposit , within this State, of good repute, and notice there- ,' of is given to the creditor. . Tender stopping interest: See sec. 1504. • § 1501. All objections to the mode of an offer of performance, which the creditor has an oppor- tunity to state at the time to the person mak- ing the offer, and which could be then obviated by him, are waived by the creditor if not then stated. Similar provision, although more specific in its requirements: Code Civ. Proc, sec. 2076. § 1502. The title to a thing duly offered in per- formance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect. I 363 EXTINCTION OF OBLIGATIONS. §§ 1503-1506 § 1503. The person offering' a tliiu^', other than money, by way of performance, must, if he means to treat it as belon^'iuj.? to the creditor, retain it as ia depositary for hire, until the creditor accepts it, 1 or until he has ^iven reasonable notice to the i creditor that he will retain it no longer, and, if I with reasonable diligence he can find a suitable [depositary therefor, until he has deposited it with ,;such person. I. Depositary for hire: See sec. 1852, post. I § 1504. An offer of payment or other perform- [ance, duly made, though the title to the thing of- jfered be not transferred to the creditor, stops the [running of interest on the obligation and has the Isame effect upon all its incidents as a perform- ance thereof. Tender transfers title: See sec. 1502, supra. Irnder bars costs: Code Civ. Proc, sec. 1030. Effect of offer in writing is the same as ten- 1 Costs when tender is made before suit brought: tCode Civ. Proc. 1030. I Gratuitous depositary: See sees. 1844, post, et Ijeq. §§ 15U-1512 EXTINCTION OF OBLIGATIONS. 364 CHAPTER III. PREVENTION OF PERFORMANCE OR OFFER. § 1511. What excuses performance, &c. § 1512. Effect of prevention of performance. § 1513. Same. (Repealed.) § 1514. Same. § 1515. Effect of refusal to accept performance before offer. § 1511. The want of performance of an obliga- tion, or of an offer of performance, in whole or in part, or any delay therein, is excused by the fol- lowing causes, to the extent to which they oper- ate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; 2. When it is prevented or delayed by an irre- sistible, superhuman cause, or by the act of pub- lic enemies of this State or of the United States, unless the parties have expressly agreed to the contrary; or, 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect done at or before the time at which such performance or offer may be made, and not rescinded before that time. Want of performance excused. — Prevention of performance by one party seems to be regarded by the Code in some instances as equivalent to performance as to the other: See sec. 1512, infra. Subd. 2. See the maxim, section 3526, "No man is responsible for that which no man can con- trol." § 1512. If the performance of an obligation b( prevented by the creditor, the debtor is entitled 'cS 365 EXTINCTION OF OBLIGATIONS. §§ 1513-1521 to all the benefits which he would have obtained if it had been performed by both parties. [Amend- ment ai)proved March 30, 1874- Amendments 1873- 4, 240. In effect July 1, 1874.] Prevention by creditor; See supra, note to sec. 1511. § 1513. [Repealed March 30, 1874; Amend- ments 1873-4, 240. In effect July 1, 1874.] § 1514. If performance of an obligation is pre- vented by any caust? excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to \\ iiich he would have been entitled upon full per- formance, according to the benefit which the credi- tor receives from the actual performance. :^ 1515. A refusal by a creditor to accept per- formance, made before an offer thereof, is equiva- lent to an offer and refusal, unless, before per- iformance is actually due, he gives notice to the I debtor of his willingness to accept it. ! Refusal to perform entitles the other party to en- force the obligation without performance on his Ipart: See sec. 1440, ante. CHAPTER IV. ACCORD AND SATISFACTION. ,§ 1521. Accord, what. .§ 1622. Effect of accord. 5 i.'.23. Satisfaction, what. -I. Accord of liquidated debt. >t 1521. An accord is an agreement to accept in lextinction of an obligation, something different ,from or less than that to which the person agree- |lng to accept is entitled. [Amendment approved §§ 1522-1530 EXTINCTION OF OBLIGATIONS. S66 March 30, 1874; Amendments 1873-4, 240. In ef- fect July 1. 1874.] See sec. 1543, post. Substituting a new obligation for the existing one is a novation: See post, sec. 1530 et seq. Order on third person, effect of: See sec. 1533, post. § 1522. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed. § 1523. Acceptance, by the creditor, of the con- sideration of an accord extinguishes the obliga- tion, and is called satisfaction. See next section. Withdrawing acceptance: See sec. 1522. § 1524. Part performance of an obligation, either before or after a breach thereof, when ex- pressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agree- ment in writing, for that purpose, though with- out any new consideration, extinguishes the obli- gation. [Amendment approved March 30, 1874; Amendments 1873-4, 241. In effect July 1, 1874.] CHAPTER V. NOVATION. § 1530. Novation, what. § 1531. Modes of novation. § 1532. Novation a contract. § 1533. Rescission of novation. § 1530. Novation is the substitution of a new obligation for an existing one. See sec. 1532. infra. Right to sue on contract made for one's bene- fit: See post, sec. 1559. EXTINCTION OP OBLIGATIONS. 5§ 1631-1541 § 1531. Novation is made: 1. By the substitution of a new obligation be- reeu the same parties, with intent to extinguish e old obligation; 2. By the substitution of a new debtor in place the old one, with intent to release the latter; or, 5. By the substitution of a new creditor in place the old one, with intent to transfer the rights the latter to the former. \ 1532. Novation is made by contract, and is bject to all the rules concerning contracts in tneral. , 1533. When the obligation of a third person, ian order upon such person, is accepted in satis- lution, the creditor may rescind such acceptance .the debtor prevents such person from comply- V with the order, or from fulfilling the obliga- la; or if, at the time the obligation or order is •Reived, such person is insolvent, and this fact ilmkuown to the creditor; or if, before the credi- ('can with reasonable diligence present the order •lie person upon whom it is given, he becomes 1 »lveiit. [Amendment approved March 30, 1874; iieudments 1873-4, 241. In effect July 1, 1874.] CHAPTER VI. RELEASE. \ U. Obligation extinguished by release. I 1'2. Certain claims not affected by general release. I 13. Release of several joint debtors. {|1541. An obligation is extinguished by a re- leij? therefrom given to the debtor by the credl- toiiupon a new consideration, or in writing, with 3r,ithout now consideration. Viting imports a consideration: Sec. 1G14, post. S§ 1542, 1543 EXTINCTION OF OBLIGATIONS. 36 § 1542. A general release does not extend t( claims which the creditor does not know or sus pect to exist in his favor at the time of executing the release, which if linown by him must have ma terially affected his settlement with the debtor [Amendment approved March 30, 1874; Amend ments 1873-4, 241. In effect July 1, 1874.] § 1543. A release of one of two or more join debtors does not extinguish the obligations of an; of the others, unless they are mere guarantors, nor does it affect their right to contribution froiii him. \ Guarantor's liability discharged: See sec. 281?' post. Rights of sureties: See post, sec. 2844. 1 PART II. CONTRACTS. ,tle I. Nature of a Contract, §§ 1549-1615. I II. Manner of creating Contracts, §§ 1619- I 1029. i III. Interpretation of Contracts, §§ 1635-1661. ! IV. Unlawful Contracts, §§ 1607-1676. i V. Extinction of Contracts, §§ 1682-1701. TITLE I. NATURE OF A CONTRACT. ii|ipter I. Definition, §§ 1549-1550. II. Parties. §§ 1556-1559. III. Consent, §§ 1565-1589. IV. Object, §§ 1595-1599. V. Consideration, §§ 1605-1615. CHAPTER I. DEFINITION. I J9. Contract, what. l'». Essential elements of contract. ;1549. A contract is an agreement to do or QO|to do a certain thing. 11550. It is essential to the existence of a con- trrt that there should be: §§ 1556-1559 NATURE OP CONTRACT. 370 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. Consent: See sees. 15G5 et seq. Unlawful contracts: See sec. 1667, post. Consideration: See sees. 1605 et seq., post. CHAPTER II. PARTIES. § 1556. Who may contract. § 1557. Minors, &c. § 1558. Identification of parties necessary. § 1559. When contract for benefit of third person may be enforced. § 1556. All persons are capable of contractingr except minors, persons of unsound mind, and per-, sons deprived of civil rights. Contracts of infants: See ante, sees. 33 et seq. Contracts of persons of unsound mind: Se( ante, sees. 38 et seq. Contracts of married women: See ante, sees 158, 159, 167. § 1557. Minors and persons of unsound mim have only such capacity as is defined by Part I of Division I. of this Code. See ante. sees. 33 et seq. § 1558. It is essential to the validity of a cod tract, not only that the parties should exist, bu that it should be possible to identify them. § 1559. A contract, made expressly for th benefit of a third person may be enforced by hii at any time before the parties thereto rescind it. 71 NATURE OF CONTRACT. §§ 1565, 1566 CHAPTER HI. CONSENT. 5 1565. Essentials of consent. 'j 16C6. Consent, when voidable. i 1567. Apparent consent, when not free. : 15G8. When deemed to have been obtained by fraud, &c. ! 1669. Duress, what. \ 1570. Menace, what. f 1571. Fraud, actual or constructive. I 1672. Actual fraud, what. i 1573. Constructive fraud. 1574. Actual fraud a question of fact. 1 1575. Undue influence, what. 1- 1576. Mistake, what. 1 1577. Mistake of fact. ' 1678. Mistake of law. ' 1579. Mistake of foreign laws. 15S0. Mutuality of consent. 1 1581. Communication of consent. . 1582. Mode of communicating acceptance of proposal. ■ 1583. When communication deemed complete. ' 1584. Acceptance by performance of conditions. 1585. Acceptance must be absolute. . 1686. Revocation of proposal. j 1587. Revocation, how made. 1588. Ratification of contract, void for want of consent. . 1589. Assumption of obligation by acceptance of benefits. ' § 1565. The consent of the parties to a contract imst be: . 1. Free; ^2. Mutual; and, ! 3. Communicated by each to the other. Consent, when not free, and effect: Sees. 1566, 1567, infra. I Consent, when not mutual: See sec. 1580. • Consent, how communicated: See infra, sees. 1581 et seq. I |§ 1566. A consent which is not free is never- (leless not absolutely void, but may be rescinded y the parties in the manner prescribed by the h.'ipter on Rescission. §§ 1567-1570 NATURE OF CONTRACT. 372' Rescission of contracts: See post, sees. 1688 et seq. § 1567. An apparent consent is not real or free when obtained through: 1. Duress; , 2. Menace; 3. Fraud; 4. Undue influence; or, 5. Mistake. Duress defined: Sec. 1569. Menace defined: Sec. 1570. Fraud defined: Sec. 1571. Undue influence deflned: Sec. 1575. Mistake deflned: Sees. 1576, 1577. § 1568. Consent is deemed to have been ob- tained through one of the causes mentioned in the last section only when it would not have beer given had such cause not existed. § 1569. Duress consists in: 1. Unlawful confinement of the person of th( party, or of the husband or wife of such party or of an ancestor, descendant, or adopted child o: such party, husband, or wife; 2. Unlawful detention of the property of an: such person; or, 3. Confinement of such person, lawful in form but fraudulently obtained, or fraudulently mad' unjustly harassing or oppressive. The unlawful imprisonment of an adopted chil< as duress is said by the Code Commissioners to b a "new provision, but in accordance with the titl on adoption": See ante, sec. 221 et seq. § 1570. Menace consists in a threat: 1. Of such duress as is specified in subdivisioE 1 and 3 of the last section; 3Ti NATURE OF CONTRACT. §§ 1571-157^ 2. Of unlawful and violent Injury to the person or property of any such person as is specified in the last section; or, 3. Of injury to the character of any such per- son. § 1571. Fraud is either actual or constructive. § 1572. Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the con- tract: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion in a manner not war- ranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one liaving Ivuowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive. Fraudulent conveyance a misdemeanor: Penal Code, sec. 531. Fraudulent instruments and transfers: See sec. 3439, post. Rescission of contracts for fraud: See post, sec. 1688. Deceit: See post, sees. 1709, 1710. § 1573. Constructive fraud consists: 1. In any breach of duty which, without an ac- tually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, Civ. Code. -32. §§ 1574-1578 NATURE OF CONTRACT. 374 2. In any such act or omission as the law spe- cially declares to be fraudulent, without respect to actual fraud. § 1574. Actual fraud is always a question of fact. § 1575. Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or appar- ent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair ad- vantage of another's necessities or distress. Undue influence vitiating will: See sec. 1272, ante. Undue influence as affecting validity of wills: See ante, sec. 1272. Rescission of contracts: See post, sec. 1689. § 1576. Mistake may be either of fact or law. § 1577. Mistake of fact is a mistake, not caus- ed by the neglect of a legal duty on the part of the person making the mistake, and consisting in: 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or. 2. Belief in the present existence of a thing ma- terial to the contract, which does not exist, or in the past existence of such a thing, which has not existed. § 1578. Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from: 1. A misapprehension of the law by all parties, 375 NATURE OF CONTRACT. • §§ 1579-1584 all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or, 2. A misapprehension of the law by one party, of which the others are aware at the time of con- tracting, but which they do not rectify. § 1579. Mistake of foreign laws is a mistake of fact. Foreign laws, how proved: See Code Civ. Proc, Bees. 1900, 1901. § 1580. Consent is not mutual, unless the par- ties all agree upon the same thing in the same sense. But in certain cases defined by the Chap- ter on Interpretation, they are to be deemed so to \ agree without regard to the fact. Interpretation of contracts: See post, sees. 1635 et seQ. , § 1581. Consent can be communicated with ef- I feet only by some act or omission of the party con- ) tracting, by which he intends to communicate it, - or which necessarily tends to such communication. § 1582. If a proposal prescribes any conditions I concerning the communication of its acceptance, the proposer is not bound unless they are con- I formed to; but in other cases any reasonable and ! usual mode may be adopted. I § 1583. Consent is deemed to be fully commu- 1 nicated between the parties as soon as the party I accepting a proposal has put his acceptance in the • course of transmission to the proposer, in conform- ■ ity to the last section. 1 § 1584. Performance of the conditions of a pro- I posal, or the acceptance of the consideration of- fered with a proposal, is an acceptance of the pro- ! posal. §§ 1585-1589 NATURE OF CONTRACT. 376 § 1585. An acceptance must be absolute and unqualified, or must Include in itself an accept- ance of that character T^'hich the proposer can separate from the rest, and which Tvill conclude the person accepting. A qualified acceptance is a new proposal. § 1586. A proposal may be revoked at any time before its acceptance is communicated to the proposer, but not afterwards. § 1587. A proposal is revoked: 1. By the communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections 1581 and 1583, before his acceptance has been communicated to the former; 2. By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time with- out communication of the acceptance. 3. By the failure of the acceptor to fulfill a con- dition precedent to acceptance; or, 4. By the death or insanity of the proposer. § 1588. A contract which is voidable solely for want of due consent may be ratified by a subse- quent consent. § 1589. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. r i77 NATURE OF CONTRACT. §5 1695-1599 CHAPTER IV. OBJECT OF A CONTRACT. S 1595. Object, what. S 1596. Requisites of object. i 1597. Impossibility, what. § 1598. Wheu contract wholly void. § 1599. When contract partially void. >j 1595. The object of a contract is the thing which it is aj,'reed, on the part of the party re- j ceiviiij^ the consideration, to do or not to do. I Unhiwful contracts: See next section, and sees. i 1667 et seq., post. j Unhiwful conditions: See ante, sec. 1441. ! § 1596. The object of a contract must be law- ful when the contract is made, and possible and 1 ascertainable by the time the contract is to be per- formed. ; See post, sees. 1G6T et seq. I § 1597. Everything is deemed possible except ! that which is impossible in the nature of things. I § 1598. Where a contract has but a single ob- ject, and such object is unlawful, whether in i whole or in part, or wholly impossible of perform- j ance, or so vaguely expressed as to be wholly un- i ascertainable, the entire contract is void. 1 § 1599. Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the con- tract is void as to the latter and valid as to the rest. §§ 1605-1608 NATURE OF CONTRACT. 378 CHAPTER V. CONSIDERATION. § 1605, Good consideration, what. § 1606. How far legal or moral obligation is a good consid- eration. § 1607. Consideration lawful. § 1608. Effect of illegality. § 1609. Consideration executed or executory. § 1610. Executory consideration. § 1611. How ascertained. § 1612. Effect of impossibility of ascertaining consideration. § 1613. Same. § 1614. Written Instrument presumptive evidence of consid- eration. § 1615. Burden of proof to invalidate sufficient considera- tion. § 1605. Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promiser is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an in- ducement to the promisor, is a good consideration for a promise. § 1606. An existing legal obligation resting up- on the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corres- ponding with the extent of the obligation, but no further or otherwise. § 1607. The consideration of a contract must be lawful within the meaning of section 1667. Illegal consideration: See unlawful contracts, see 1667, post. § 1608. If any part of a single consideration for one or more objects, or of several considera- t:^ nature of contract. 5§ 1609-16I6 'ions for a single object, is unlawful, the entire lontract is void. § 1609. A considenition may be executed or executory in whole or in part. In so far as it is xecutory it is subject to the provisions of Chapter |V. of this title. ■• § 1610. When a consideration is executory, it J not indispensable that the contract should spec- fy its amount or the means of ascertaining it. ,t may be left to the decision of a third person, ir regulated by any specilied standard. : § 1611. When a contract does not determine '18 amount of the consideration, nor the method [y which it is to be ascertained, or when it leaves ie amount thereof to the discretion of an inter- sted party, the consideration must be so much loney as the object of the contract is reasonably 'orth. I See following sections. I j§ 1612. Where a contract provides an exclu- ;.ve method by which its consideration is to be ;5certained, which method is on its face impossi- ble of execution, the entire contract is void. § 1613. Where a contract provides an exclusive 'lethod by which its consideration is to be ascer- ^lined, which method appears possible on its face, iLit in fact is, or becomes impossible of execution, iich provision only is void. '§ 1614. A written instrument is presumptive vldence of a consideration. j Distinction between sealed and unsealed instru- iCnts abolished: See post, sec. 1629. § 1615. The burden of showing a want of con- Ideration sufficient to support an instrument lies ith the party seelcing to invalidate or avoid it. §§ 1619-1623 MANNER OF CREATING CONTRACTS. 3»; TITLE II. MANNER OF CREATING CONTRACTS. § 1619. Contracts, express or implied. § 1620. Express contract, what. § 1621. Implied contract, what. § 1622. What contracts may be oral. § 1623. Contract not in writing through fraud, may be en! forced against fraudulent party. § 1624. What contracts must be written. § 1625. Effect of writing. § 1626. Contract in writing, takes effect when. § 1627. Provisions of chapter on transfers of real property § 1628. Corporate seal, how affixed. § 1329. Provisions abolishing seals made applicable. § 1619. A contract is either express or implied § 1620. An express contract is one, the termi of which are stated in words. 9 § 1621. An implied contract is one, the exist ence and terms of which are manifested by con. duct. Obligations imposed by law: Sec. 1708, post. § 1622. All contracts may be oral, except sucl as are specially required by statute to be in writ ing. Contracts, when to be in writing: See infr; sees. 1623, 1624; Code Civ. Proc, sees. 1971-1974. § 1623. Where a contract, which is required b; law to be in writing, is prevented from being pu into writing by the fraud of a party thereto, an; other party who is by such fraud led to believ that it is in writing, and acts upon such belief t his prejudice, may enforce it against the fraudi lent party. Code Civ. Proc, sees. 1971-1974. II I 1 MANNER OF CREATING CONTRACTS. 5 1624 § 1624. The followinj; contracts are invalid, iless the same, or some note or memorandum {ereof, be in writinc: and subscribed by the par- te be charj^ed, or by his a^ent: 1. An agreement that by its terms is not to be •rformed Avithin a year from the malting tliereof ; 2. A special promise to answer for the debt, de- ult. or miscarriage of another, except in the -r< provided for in section twenty-seven hun- vd and ninety-four of this Code; 3. An agrccnioiit made U]>on consideration of [arriage other than a mutual promise to marry; 4. An agreement for the sale of goods, chat- :1s, or things in action, at a price not less than \vo hundred dollars, unless the buyer accept or [ceive part of such goods and chattels, or the ! idences, or some of them, of such things in ae- on, or pay at the time some part of the purchase- onoy; but when a sale is made at auction, an en- y by the auctioneer in his sale book, at the time :' the sale, of the kind of property sold, the terms r' the sale, the price, and the names of the pur- iiaser and person on whose account the sale is • ade, is a sutticient memorandum; ;5. An agreement for the leasing for a longer i?riod than one year, or for the sale of real prop- 4y. or for an interest tliercin: and sudi agree- lent, if made by an agent of the party sought to li charged, is invalid, unless the authority of the lJ:ent be in writing, subscribed by the party ;»ught to be charged; ,0. An agreement authorizing or employing an i^ent or broker to purchase or sell real estate for impensation or a commission. [Amendment ap- !-oved March 9, 1878; Amendments 1877-8. In ef- ''Ct sixty days after passage.] 'Code Civ. rroc, sees. 1971-1974. See post, sec. 1798. I Guaranty: See post. sec. 2793. §§ 1625-1629 MANNER OF CREATING CONTRACTS. 3a Agent, how appointed: See post, sec. 1741. Fraudulent transfers: See post, sees. 3489 el seq. Sales of personalty: See post, sees. 1739 et seq Guaranty: See post, sees. 2787, 2793 et seq. Part performance taking case out of statute: Sec post, sec. 1741. § 1625. The execution of a contract in writing whether the law requires it to be written or not supersedes all the oral negotiations or stipulatiom concerning its matter which preceded or accom panied the execution of the instrument. Code Civ. Proc, sees. 1971-1974. Writing supersedes oral stipulations: See post sec. 1639. § 1626. A contract in writing takes effect upoi its delivery to the party in whose favor it is made or to his agent. Delivery of transfers in writing: See, generally ante, see. 1054. § 1627. The provisions of the Chapter oi Transfers in General, concerning the delivery o grants, absolute and conditional, apply to all writ ten contracts. See ante, sees. 1052 et seq. § 1628. A corporate or official seal may h affixed to an instrument by a mere impressioi upon the paper or other material on which sue! instrument is written. See Code Civ. Proc., sec. 14; Polit. Code, see. 14 § 1629. All distinctions between sealed and ur sealed instruments are abolished. INTERPRETATION OF CONTRACTS. §§ 1636-1637 TITLE III. INTERPRETATION OF CONTRACTS. Uniformity of interpretation. Contracts, how to be interpreted. Intention of parties, how ascertained. Intention to be ascertained from language. Interpretation of written contracts. Writing, when disregarded. Effect to be given to every part of contract. Several contracts, when taken together. Interpretation in favor of contract. Words to be understood in usual sense. Technical words. Law of place. Contracts explained by circumstances. Contract restricted to its evident object. Interpretation in sense in which promisor believed promisee to rely. i650. Particular clause subordinate to general Intent. '351. Contract, partly written and partly printed. J662. Repugnancies, how reconciled. 5653. Inconsistent words rejected. 1654. Words to be taken most strongly against whom. i|655. Reasonable stipulations, when implied. i656. NecesKary incidents implied. 657. Time of performance of contract. 658. Time, when of essence. (Repealed.) t659. When joint and several. im. Same. 6561. Executed and executory contracts, what. ,: 1635. All contracts whether public or priv- f\ are to be interpreted by the same rules, ex- < t IS otherwise provided by this Code. ;■ 1636. A contract must be so interpreted as ti give cfTect to the mutual intention of the par- tis as it existed at the time of contracting, so !'• as the same is ascertainable and lawful. [\irol evidence to prove intention: See Code Civ. IjOC. sees. 1855 et seq. 1637. For the purpose of ascertaining the in- tjition of the parties to a contract, if otherwise §§ 1638-1644 INTERPRETATION OF CONTRACTS. 3i« doubtful, the rules given in this chapter are to bJ applied. Parol evidence with respect to writings: Se; Code Civ. Proc, sees. 1855, 1856, et seq. § 1638. The language of a contract is to gov ern its interpretation, if the language is clear an' explicit, and does not involve an absurdity. ; § 1639. When a contract is reduced to writing! the intention of the parties is to be ascertaine from the writing alone, if possible; subject, hov ever, to the other provisions of this title. Parol evidence in construing writings: See Coc Civ. Proc, sees. 1855 et seq. See also post, se 1689. § 1640. When, through fraud, mistake, or a cident, a written contract fails to express the re: intention of the parties, such intention is to be r garded, and the erroneous parts of the writir disregarded. See Code Civ. Proc, sec 1856. § 1641. The whole of a contract is to be talit together, so as to give effect to every part, if re sonably practicable, each clause helping to inU pret the other. § 1642. Several contracts relating to the sar matters, between the same parties, and made parts of substantially one transaction, are to taken together. § 1643. A contract must receive such an int( pretation as will make it lawful, operative, df nite, reasonable, and capable of being carried ir effect, if it can be done without violating t intention of the parties. § 1644. The words of a contract are to oe i I ;s5 INTERPRETATION OF CONTRACTS. §§ 1645-1661 llerstood in their ordinary and popular sense, rath- ijr than according; to ttieir strict legal meaning; [inless used by the parties in a teclmical sense, |)r unless a special meaning is given to them by isage, in which case the latter must be followed. § 1645. Technical words are to be interpreted IS usually understood by persons in the profes- ;ion or business to which they relate, unless clear- y used in a different sense. § 1646. A contract is to be interpreted accord- ng to the law and usa^e of the place where it is ;o be performed; or, if it does not indicate a place l»f performance, according to the law and usage !)f the place where it is made, ('...le Civ. rroc, sec. 1870, subd. 12. ? 1647. A contract may be explained by refer- in c to the circumstances under which it was iKiilo, and the matter to which it relates. § 1648. However broad may be the terms of a I'oulract, it extends only to those things concern- ing which it appears that the parties intended to fontract. ' Code Civ. Proc, sec. 1864. i 1649. If the terms of a promise are in any lespect ambiguous or uncertain, it must be inter- nreted in the sense in which the promisor believ- pd. at the time of making it, that the promisee understood it. j Which construction preferred: Code Civ. Proc, ,ec. 1804. I § 1650. Particular clauses of a contract are Inbordiuate to its general intent. See infra, sees. 1652, 1653. ' § 1651. Where a contract is partly written and Civ. Code.— 33. §§ 1652-1653 INTERPRETATION OF CONTRACTS. 386 partly printed, or where part of it is written or I printed under the special directions of the parties, f and with a special view to their intention, and the ij remainder is copied from a form originally pre- .! pared without special reference to the particular ii parties and the particular contract in question, ii the written parts control the printed parts, and 'I 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. § 1652. Repugnancy in a contract must be rec- onciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. § 1653. Words in a contract which are wholly inconsistent with its nature, or with the main in- tention of the parties, are to be rejected. § 1654. In cases of uncertainty not removed by; the preceding rules, the language of a contract, should be interpreted most strongly against the' party who caused the uncertainty to exist. The promisor is presumed to be such party; except in a contract between a public officer or body, a& such, and a private party, in which it is presumed that all uncertainty was caused by the private party. § 1655. Stipulations which are necessary tc make a contract reasonable, or conformable tc usage, are implied, in respect to matters concern ing which the contract manifests no contrary in tention. § 1656. All things that in law or usage are con sidered as incidental to a contract, or as necessary to carry it into effect are implied therefrom, un I 587 INTERPRETATION OF CONTRACTS. §§ 1657-1661 iless some of them are expressly mentioned there- lln, Avhen all other things of the same class are (ieeraed to be excluded. ■ § 1657. If no time is specified for the perform- ;ince of an act required to be performed, a rea- >;onable time is allowed. If the act is in its nature Capable of being done instantly,— as, for example, [f it consists in the payment of money only,— it inust be performed immediately upon the thing to 1)8 done being exactly ascertained. [ § 1658. [Repealed March 30, 1874; Amend- j.nents 1873-4, 242. In effect July 1, 1874.] [ § 1659. Where all the parties who unite in a bromise recei'S'^ some benefit from the considera- ion. whether past or present, their promise is pre- umed to be joint and several. f Contracts, joint and several: See ante, sees. 1430 '•t seq. ! § 1660. A promise, made in the singular num- ber, but executed by several persons, is presumed be joint and several. § 1661. An executed contract is one, the object ■f which is fully performed. All others are ex- cutory. §§ 1667-1670 UNLAWFUL CONTRACTS. 388 TITLE IV. UNLAWFUL CONTRACTS. § 1667. What is unlawful, § 1668. Certain contracts unlawful. § 1639. Penalties void. (Repealed.) § 1670. Contract fixing damages, void. § 1671. Exception. § 1672. Restraints upon legal proceedings. (Repealed.) § 1673. Contract in restraint of trade, void. § 1674. Exception in favor of sale of good will. § 1675. Exception in favor of partnership arrangements. § 1676. Contract in restraint of marriage, void. § 1667. That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals. Act to prevent combinations to obstruct the sale of livestock: See post. Appendix, p. Contracts in restraint of trade: See sec. 1673. infra. Contracts in restraint of marriage: See sec. 1676, infra. Conditions, when void: See ante, sees. 709, 710,' 711. § 1668. All contracts which have for their ob- ject, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law. whether willful or negligent, are against the policy of the law. § 1669. [Repealed March 30,1874; Amendments 1873-4, 242. In effect July 1, 1874.] § 1670. Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, ex- cept as expressly provided in the next section. I 38& UNLAWFUL CONTRACTS. §§ 1671-1676 ^ 1671. The parties to a coutiact may agree thereiu upon nn amount which shall be presumed to be the amouut of damaj^e sustained by a broach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. § 1672. [Repealed March 30, 1874; Amend- ments 1873-4, 242. In effect July 1, 1874.] [ § 1673. Every contract by which any one is 'restrained from exercising a lawful profession, [trade, or business of any kind, otherwise than is I provided by the next two sections, is to that ex- ;tent void. i I § 1674. One who sells the good will of a busi- ness may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the good will from him, carries on a like business therein. I Good will of a business defined: Sec. 992, ante. 1 Good will of a business is property: Sec. 993, inte. Sale of good will, implied warranty not to draw iway customers: Sec. 177G, post. Partner cannot dispose of good will: See post, jec. 2430. subd. 2. § 1675. Partners may, upon or in anticipation )f a dissolution of the partnership, agree that none of them will carry on a similar business vithin the same city or town where the partner- hip business has been transacted, or within a pecified part thereof. § 1676. Every contract in restraint of the mar- iage of any person, other than a minor, is void. Conditions in restraint of marriage: See ante, '" •. 710. .§§ 1682-1689 EXTINCTION OF CONTRACTS. 390 TITLE V. EXTINCTION OF CONTRACTS. Chapter I. Contracts, How Extinguished, § 1682. II. Rescission, §§ 1688-1091. III. Alteration and Cancellation, §§ 1697- 1701. CHAPTER I. CONTRACTS, HOW EXTINGUISHED. § 1682. Contract, how extinguished. § 1682. A contract may be extinguished in like manner with any other obligation, and also in the manner prescribed by this title. CHAPTER II. RESCISSION. § 1688. Rescission extinguishes contract. § 1689. "When party may rescind. S 1690. When stipulations against right to rescind do not defeat it. § 1691. Rescission, how effected. § 1688. A contract is extinguished by its rescission. § 1689. A party to a contract may rescind the same in the following cases only: 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given' by mistalie, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he yjl EXTINCTION OF CONTRACTS. §§ 1690. 1691 rescinds, or of any other pnrty to the contract jointly interested with such party; L'. If, through the fault of the party as to whom [ic rescinds the consideration for his obligation fnils, in Avhole or in part; ;;. If such consideration becomes entirely void 'mill any cause; ■t. If such consideration, before it is rendered to him, fails in a material respect, from any :ause; or. r.. By consent of all the other parties. See post, sees. 3400 et seq., on rescission. I (J rounds of rescission as a counterclaim: See '::;ode Civ. Proc, sees. 438, 439. Rescinding sale of personalty for nonpayment of •rice: See post, sec. 1748. § 1690. A stipulation that errors of description shall not avoid a contract, or shall be the subject )f compensation, or both, does not take away the •ight of rescission for fraud, nor for mistake, jvhere such mistake is in a matter essential to the [nducement of the contract, and is not capable of ;?xact and entire compensation. § 1691. Rescission, when not effected by con- lent, can be accomplished only by the use, on the )art of the party rescinding, of reasonable dili- |:ence to comply with the following rules: 1. He must rescind promptly, upon discovering I he facts which entitle him to rescind, if he is free irom duress, menace, undue influence, or disabil- ity, and is aware of his right to rescind; and, . 2. He must restore to the other party every- thing of value which he has received from him imder the contract; or must offer to restore the lame, upon condition that such party shall do like- ivise, unless the latter is unable or positively re- nsos to do so. See sees. 3406-3408, post. §§ 1697-1700 EXTINCTION OF CONTRACTS. S92 CHAPTER III. ALTERATION AND CANCELLATION. § 1697. Alteration of verbal contract. § 1398. Sealed contracts, how modified. § 1699. Extinction by cancellation, etc. S 1700. Extinction by unauthorized alteration. § 1701. Alteration of duplicate, not to prejudice. 'i § 1697. A contract not in writing may be alter- I ed in any respect by consent of tlie parties, in ] writing, without a new consideration, and is extin- J guished tliereby to ttie extent of the new altera- t tion. [Amendment approved March 30, 1874; ;" Amendments 1873-4, p. 242. In effect July 1, \ 1874.] I Alterations in written instrument to be ac- jj counted for by the party producing it in evidence: ' Code Civ. Proc. sec. 1982. § 1698. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise. [Amendment ap- proved March 30, 1874; Amendments 1873-4, p. 242. In effect July 1, 1874.] Parol evidence to alter writings: See Code Civ. Proc, sec. 1856; and see ante, sec. 1639. § 1699. The destruction or cancellation of a written contract, or of the signature of the par- ties liable thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. § 1700. The intentional destruction, cancella- tion, or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act. :iO EXTINCTION OF CONT/IACTS. j 1701 >; 1701. Where a contract is executed in dupli- cnie, an alteration or destruction of one copy, while the other exists, is not within the provi- bioiis of the last section. PART III. OBLIGATIONS IMPOSED BY LAW. § 1708. Abstinence from injury, § 1709. Fraudulent deceit. § 1710. Deceit, what. § 1711. Deceit upon the public, etc. § 1712. Restoration of thing wrongfully acquired. § 1713. When demand necessary. § 1714. Responsibility for willful acts, negligence, etc. § 1715. Other obligations. § 1708. Every person is bound, without con- tract, to abstain from injuring the person or prop- erty of another, or infringing upon any of his rights. As to what injuries are criminal: See Penal Code, sees. 346-349. § 1709. One who willfully deceives another with intent to induce him to alter his position to his injury or rislv, is liable for any damage which he thereby suffers. § 1710. A deceit, within the meaning of the last section, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of :;,'., OBLIGATIONS IMPOSED BY LAW. §§ 1711-1715 other facts which are likely to mislead for want <.r communication of that fact; or, I. A promise, made without any intention of [xifitrmiug it. I raud actual and constructive: See sees. 1571 et seq. ij 1711. One who practices a deceit with intent to ^U'fraud the public, or a particular class of per- ><)ns, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit. s^ 1712. One who obtains a thing without the in sent of its owner, or by a consent afterward r . iuded, or by an unlawful exaction which the ;)\vner could not at the time prudently refuse, inust restore it to the person from whom it was ?:hus obtained, unless he has acquired a title i -hereto superior to that of such other person, or inless the transaction was corrupt and unlawful \m both sides. 1713. The restoration required by the last ion must be made without demand, except •vhere a thing is obtained by mutual mistal^e, in fVhich case the party obtaining the thing is not ')ound to return it until he has notice of the mis- \ § 1714. Every one is responsible, not only for 'he result of his willful acts, but also for an injury • ccasioned to another by his want of ordinary care It skill in the management of his property or per- .on, except so far as the latter has, willfully or ,>y want of ordinary care, brought the injury upon liimsolf. The extent of liability in such cases is efined by the Title on Compensatory Relief. T'ompensatory relief: See post, sees. 3281 et se(\ ' § 1715. Other obligations are prescribed by 'divisions I and II of this Code. PART IV. OBLIGAl IONS ARISING FROM PARTICULAR TRANSACTIONS. Title I. Sale, §§ 1721-1798. II. Exchange, §§ 1804-1807. III. Deposit, §§ 1813-1878. IV. Loan, §§ 1884-1920. V. Hiring, §§ 1925-1959. VI. Service, §§ 1965-2079. VII. Carriage, §§ 2085-2209. VIII. Trust, §§ 2215-2289. IX. Agency, §§ 2295-2389. X. Partnership, §§ 2395-2520. XI. Insurance, §§ 2527-2766. XII. Indemnity, §§ 2772-2781. XIII. Guaranty, §§ 2787-2866. XIV. Lien, §§ 2872-3080. XV. Negotiable Instruments, §§ 3086-3262. XVI. General Provisions, § 3268. TITLE I. Chaptei £. n. III. IV. SALE. General Provisions, §§ 1721-1741. Rights and Obligations of the Seller^ §§ 1748-1778. Rights and Obligations of the BuyerJ §§ 1784-1786. Sale by Auction, §§ 1792-1798. SALE. §§ 1721-1726 CHAPTER I. GENERAL PROVISIONS. I Article I. Sale, §§ 1721-1722. II. Agreements for Sale. §§ 1726-1734. III. Form of the Contract, §§ 1739-1741. ARTICLE 1. SALE. I 1721. Sale, what. I 1722. Subject of sale. § 1721. Sale is a contract by which, for a pe- cuniary consideration, called a price, one transfers to another an interest in property. ;:; 1722. The subject of sale must be property, the title to which can be immediately transferred from the seller to the buyer. § 1726. 5 1727. § 172S. § 1729. § 1730. 5 1731. 8 1732. 9 1733. § 1734. f «1 ! 1- ARTICLE II. AGREEMENTS FOR SALE. Agreement for sale. Agreement to sell. Agreement to buy. Agreement to sell and buy. What may be the subject of the contract. Agreement to sell real property. Form of grant required by such contract. (Re- pealed.) Usual common law covenants required by such con- tracts, when. Form of such covenants. 1726. An a.ffreoment for sale is either: An agreement to sell; Civ. Code. -31. 5§ 1727-1734 SALE. 398 2. Au agreement to buy; or, 3. A mutual agreement to sell and buy. § 1727. An agreement to sell is a contract by which one engages, for a price, to transfer to an- other the title to a certain thing. § 1728. An agreement to buy is a contract by which one engages to accept from another, and pay a price for the title to a certain thing. § 1729. An agreement to sell and buy is a con- tract by which one engages to transfer the title to a certain thing to another, who engages to ac- cept the same from him and to pay a price there- for. § 1730. Any property which, if in existence,, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not. § 1731. An agreement to sell real property binds the seller to execute a conveyance in form sufl3- cient to pass the title to the property. [Amend- ment approved March 30, 1874; Amendments 1873- 4, p. 243. In effect July 1, 1874.] § 1732. [Repealed March 30, 1874; Amend- ments 1873-4, 243. In effect July 1, 1874.] § 1733. An agreement on the part of a seller of real property to give the usual covenants, binds him to insert in the grant covenants of "seisin," "quiet enjoyment," "further assurance," "gen- eral warranty." and "against incumbrances." § 1734. The covenants mentioned in the last section must be in substance as follows: "The party of the first part covenants with the party of the second part, that the former is now seized 399 SALE. §§ 1739-1740 in fee simple of the property granted; that the latter shall enjoy the same without any lawful disturbance; that the same is free from all in- cumbrances; that the party of the first part, and all persons acquiring any Interest in the same throu^'h or for him, will, on demand, execute and deliver to the party of the second part, at the ex- pense of the latter, any further assurance of the same that may be reasonably required; and that the party of the first part will warrant to the party of the second part all the said property a gainst every person lawfully claiming the same." ARTICLE III. FORM OF THE CONTRACT. 1} 1739. Contract for sale of personal property. \ 1740. Contract to manufacture, i 1711. Contract for sale of real property. I § 1739. No sale of personal property, or agree- iment to buy or sell it for a price of two hundred liollars or more, is valid, unless: ' 1. The agreement or some note or memoran- jlum thereof be in writing, and subscribed by the )arty to be charged, or by his agent; or, i 2. The buyer accepts and receives part of the Ihing sold, or when it consists of a thing in ac- tion, part of the evidences thereof, or some of I hem: or, j 3. The buyer, at the time of sale, pays a part I'f the price, [Amendment approved March 30, ■874; Amendments 1873-4, p. 243. In effect July ;. 1874.] I Code Civ. Troc, sees. 1971-1974. § 1740. An agreement to manufacture a thing, !poni materials furnished by the manufacturer, or §§ 1741-1749 SALE. 400 by another person, is not within the provisions of the last section. § 1741. No agreement for the sale of real prop- erty, or of an interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing:, and subscribed by the party to be charg- ed, or his agent, thereunto authorized, in writing; but this does not abridge the power of any court to compel the specific performance of any agree- ment for the sale of real property in case of part performance thereof, [Amendment approved March 30, 1874; Amendments 1873-4, p. 243. In ef- fect July 1, 1874.] Code Civ. Proc, sees. 1971-1974. CHAPTER II. RIGHTS AND OBLIGATIONS OF THE SELLER. Article I. Rights and Duties before Delivery, §§ 1748, 1749. II. Delivery, §§ 1753-1758. III. Warranty, §§ 1763-1778. ARTICLE I. RIGHTS AND DUTIES BEFORE DELIVERY. § 1748. When seller must act as depositary. § 1749. When seller may resell. § 1748. After personal property has been sold, and until the delivery is completed, the seller has the rights and obligations of a depositary for hire, except that he must keep the property, without charge, until the buyer has had a reasonable op- portunity to remove it. § 1749. If a buyer of personal property does not pay for it according to contract, and it remains "1 SALE. §§ 1763-1766 11 the possession of tlie seller after payment is iif, the seller may rescind the sale or may en- nice his lieu for the price, in the manner prescrib- »1 l»y the Title on Liens. !:< 'scission of contracts, j^enerally: See ante, sec. it.ss et sea. ] Rescission of contract for sale by buyer: See nsr. sees. 1785, 1780. I.it'us: See post, sees. 2872 et seq. ARTICLE II. DELIVERY. 17...'.. Delivery on demand. 17.'. t. Delivery, where made. 17.'..".. E.xpense of transportation. 17:.t;. Notice of election as to delivery. 17. 7. Buyer's directions as to manner of sending thing sold. 17.'.^. Delivery to be within reasonable hours. § 1753. One who sells personal property, Ivhether it was in his possession at the time of ]ale or not, must put it into a condition fit for Helivery. and deliver it to the buyer within a rea- ;onable time after demand, unless he has a lien 'hereon, I Performance jjenerally: See ante, sees. 1473, 485, et seq. [ Delivery sufficient as to third persons: See sec. 440, post. j § 1754. Personal property sold is deliverable t the place where it is at the time of the sale or igreement to sell, or if it is not then in existence, i: Is deliverable at the place where it is produced. ! § 1755. One who sells personal property must jrinff it to his own door, or other convenient place, Dr its acceptance by the buyer, but further trans- ortation is at the rislc and expense of the buyer. §§ 1758-1763 SALE. 402 § 1756. When either party to a contract of sale has an option as to the time, place, or manner of delivery, he must give the other party reasonable notice of his choice; and if he does not give such notice within a reasonable time, his right of op- tion is waived. § 1757. If a seller agrees to send the thing sold to the bu5'er, he must follow the directions of the latter as to the manner of sending, or it will be at his own risli during its transportation. If he fol- lows such directions, or if, in the absence of spe- cial directions, he uses ordinary care in forward- ing the thing, it is at the risli of the buyer. § 1758. The delivery of a thing sold can be offered or demanded only within reasonable hours of the day. ARTICLE III. WARRANTY. § 1763. Warranty, what. § 1764. No implied warranty in mere contract of sale. § 1765. Warranty of title to personal property. § 1766. Warranty on sale by sample. § 1767. When seller knows that buyer relies on his state- ments, etc. § 1768. Merchandise not in existence. § 1769. Manufacturer's warranty against latent defects. § 1770. Thing bought for particular purpose. § 1771. When thing cannot be examined by buyer. § 1772. Trade-marks. § 1773. Other marks. § 1774. Warranty on sale of written instrument. § 1775. Warranty of provisions for domestic use. § 1776. W^arranty on sale of good-will. § 1777. Warranty upon judicial sale. § 1778. Effect of general warranty. § 1763. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, pres- ent, or future. I 103 SALE. §§ 1764-1770 i> 1764. Except as prescribed by this article, a ncrt' contract of sale or agreement to sell does not inply a warranty. W nrranty of genuineness on exchange of money: MM. 1807. post. ^ 1765. One who sells or agrees to sell per- oii.il property as his own, thereby warrants that c h.is a good and unincumbered title thereto. ^ 1766. One who sells or agrees to sell goods y saini)le, thereby warrants the bulk to be equal » I he sample. § 1767. One who sells or agrees to sell per- [onal property, knowing that the buyer relies up- n liis advice or judgment thereby warrants to the uyer that neither the seller, nor any agent em- luyed by him in the transaction, knows the exist- nce of any fact concerning the thing sold which Vould to his knowledge destroy the buyer's In- ucement to buy. § 1768. One who agrees to sell merchandise ;ot thou in existence, thereby warrants that it aall be sound and merchantable at the place of Toduction contemplated by the parties, and as early so, at the place of delivery, as can be se- jred by reasonable care. I § 1769. One who sells or agrees to sell an arti- |e of his own manufacture, thereby warrants it |> be free from any latent defect, not disclosed to jie buyer, arising from the process of manufac- |ire, and also that neither he nor his agent in such anufacturo has knowingly used improper mate- |als therein. § 1770. One who manufactures an article un- ir an order for a particular purpose, warrants by lie sale that it is reasonably fit for that purpose. §§ 1771-1777 SALE. 404 § 1771. One who sells or agrees to sell mer- chandise inaccessible to the examination of the buyer, thereby warrants that it is sound and mer- chantable. § 1772. One who sells or agrees to sell any arti- cle to which there is affixed or attached a trade- marl^, thereby warrants that mark to be genuine and lawfully used. Selling goods with counterfeit trademark: See Penal Code, sec. 351. § 1773. One who sells or agrees to sell any ar- ticle to which there is affixed or attached a state- ment or mark to express the quantity or quality thereof, or the place where it was, in whole or in part, produced, manufactured, or prepared, there- by warrants the truth thereof. Owner of trademark: Polit. Code, sec. 3199. § 1774. One who sells or agrees to sell an in- strument purporting to bind any one to the per- formance of an act, thereby warrants that he has , no knowledge of any facts which tend to prove ! it worthless, such as the insolvency of any of the I parties thereto, where that is material, the ex- tinction of its obligations, or its invalidity for any cause. [Amendment approved March 30, 1874; Amendments 1873-4, p. 244. In effect July 1, 1874.] § 1775. One who makes a business of selling provisions for domestic use warrants by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome. § 1776. One who sells the good will of a bus- iness, thereby warrants that he will not endeavor to draw off any of the customers. 1777. Upon a judicial sale, the only warran- I )5 SALE. §8 1778-1786 y implied is that the seller does not know that he sale will not pass a good title to the prop- i-ty. >; 1778. A general warranty does not extend to cfccts inconsistent therewith of which the buyer ,-;is then aware, or which were then easily dis- rniible by him without the exercise of peculiar kill; but it extends to all other defects. CHAPTER III. RIGHTS AND OBLIGATIONS OF THE BUYER. 17^4. Price, when to be paid. i:^.'. Right to inspect goods. l7^t■.. Rights in case of breach of warranty. § 1784. A buyer must pay the price of the hin (Idiio without injury to the thing. §§ 1833-1835 DEPOSIT. 412 CHAPTER II. DEPOSIT FOR KEEPING. Article I. General Provisions, §§ 1833-1840. II. Gratuitous Deposit, §§ 1844-1847. III. Storage, §§ 1851-1855. IV. Innkeepers, §§ 1859-1863. V. Finding, §§ 1864-1872. ARTICLE I. GENERAL PROVISIONS. § 1833. Depositor must indemnify depositary. § 1834. Obligation of depositary of animals. § 1835. Obligations as to use of thing deposited. § 1836. Liability for damage arising from wrongful use. § 1837. Sale of thing in danger of perishing. § 1838. Injury to, or loss of thing deposited. § 1839. Service rendered by depositary. § 1840. Extent of his liability for negligence. § 1833. A depositor must indemnify the de-i positary: I 1. For all damajre caused to him by the defects' or vices of the thing deposited; and, ' 2. For all expenses necessarily incurred by him' about the thing, other than such as are involved in the nature of the undertaliing. Lender's liability for defects of articles borrow- ed: See sec. 1894. § 1834. A depositary of living animals must provide them with suitable food and shelter, and treat them kindly. Lien of keepers of livestock: See post, sec. 3051. § 1835. A depositary may not use the thing deposited, or permit it to be used, for any puri pose, without the consent of the depositor. Hd may not, if it is purposely fastened by the depos-ij tl3 DEPOSIT. §§ 1836-1840 tor, open it without the consent of the latter, ex- •t'lit in case of necessity. See next section. Hiring: See post, sees. 1925 et seq. § 1836. A depositary is liable for any damage lappening to the thing deposited, during his viougful use thereof, unless such damage must iKvitably have happened though the property had lot been thus used. ' 1837. If a thing deposited is in actual dan- ■i'v of perishing before instructions can be ob- aiiicd from the depositor, the depositary may ell it for the best price obtainable, and retain ir jtroceeds as a deposit, giving immediate notice 1' liis proceedings to the depositor. >; 1838. If a thing is lost or injured during its t'lKisit, and the depositary refuses to inform the '1 Msitor of the circumstances under which the iss or injury occurred, so far as he has informa- oii concerning them, or willfully misrepresents , ic circumstances to him, the depositary is pre- iiincd to have willfully, or by gross negligence, rinitted the loss or injury to occur. >; 1839. So far as any service is rendered by a L'lM.siiary, or required from him, his duties and labilities are prescribed by the Title on Employ- ;ient and Service. See post, sees. 1965 et seq. ^' 1840. The liability of a depositary for negli- Mii r cannot exceed the amount which he is in- )rniod by the depositor, or has reason to suppose, lie thing deposited to be worth. [Amendment Improved March 30, 1874; Amendments 1ST3-4, p. 1. In effect July 1, 1874.] SS 1844-1847 DEPOSIT. 414 ARTICLE II. GRATUITOUS DEPOSIT. § 1844. Gratuitous deposit, what. § 1845. Nature of involuntary deposit. § 1846. Degree of care required of gratuitous depositary. § 1847. His duties cease, when. § 1844. Gratuitous deposit is a deposit for which the depositary receives uo consideration be- yond the mere possession of the thing deposited. Degree of care necessary: See next section. If this bailment correspond to the mandatum as gen- erally understood, requiring on the part of the bailee some service to be performed with respect to the deposit, then sections 1839, supra, and sec- tions 1975, 1976, 1977, post, must be read together with section 1846, in determining the degree of care which this bailee must use. § 1845. An involuntary deposit is gratuitous, the depositary being entitled to no reward. Involuntary deposit defined: See ante, sec. 1815. § 1846. A gratuitous depositary must use, at least, slight care for the preservation of the thing deposited. Degree of care requisite: See note to sees. 1844, supra. ""§ 1847. The duties of a gratuitous depositary cease: 1. Upon his restoring the thing deposited to its owner; or, 2. Upon his giving reasonable notice to the owner to remove it, and the owner failing to do so within a reasonable time. But an involuntary depositary, under subdivision 2 of section 1815. U5 DEPOSIT. 55 1851-1854 raunot give such notice until the emergency which ;ave rise to the deposit is past. ARTICLE III. STORAGE. 1851. Deposit for hire. 1852. Degree of care required of depositary for hire. 18r.3. Rate of compensation for fraction of a week, etc. 18G4. Termination of deposit. 1855. Same. . 1856. Lien for storage charged. 1^,7. Storage property to be sold. 1851. A deposit not gratuitous is called stor- ut'. The depositary in such case is called a de- ns it ary for hire. Krceipts of warehousemen and wharfingers, act 2 I elation to: See post, Appendix, p. 839. Hiring in general: See post, sec. 1925. § 1852. A depositary for hire must use at least Irdinary care for the preservation of the thing de- {osited. [Liability of innkeepers: See sec. 1859. .Common carriers: Sees. 2100, 2114, 2194. Liability of warehouseman: See post, sees. 2120, !l21. \ § 1853. In the absence of a different agree- lient or usage, a depositary for hire is entitled to 'iQe weelv's hire for the sustenance and shelter of jving animals during any fraction of a week, iad to half a month's hire for the storage of any !;her property during any fraction of a half ■lonth. ! § 1854. In the absence of an agreement as to |ie length of time during which a deposit is to 'mtinue, it may l)e terminated by the depositor at [;iy time, and by the depositary upon reasonable otice. §§ 1855-1857 DEPOSIT. 416 Terminatiou by depositor: Compare the preced- ing and tlie next sectiojis. Section 1853 must re- fer to a deposit wliere no length of time is speci- fied; section 1855, to a case where there is such an understanding. § 1855. Notwithstanding an agreement re- specting the length of time during which a depos- it is to continue, it may be terminated by the de- positor on paying all that would become due to the depositary in case of the deposit so continu- ing. § 1856. A depositary for hire has a lien for storage charges, which is regulated by the title on liens. [New section added March 31, 1891; Stats. 1891, p. 470. In effect immediately.] § 1857. If, from any cause other than want of ordinary care and diligence on his part, a deposi- tary for hire is unable to deliver perishable prop- erty, baggage, or luggage received by him for stor- age, or to collect his charges for storage due there- on, he may cause such property to be sold, in open market, to satisfy his lien for storage; provided, that no property except perishable property shall be sold, under the provisions of this section, up- on which storage charges shall not be due and unpaid for one year at the time of such sale. [New section added March 31, 1891; Stats. 1891, p. 470. In effect immediately.] i r 417 DEPOSIT. S§ 185»-18fie ARTICLE IV. INNKEEPERS. § 1859. Innkeeper's liability. S 1860. How exempted from liability. |§ 1861. Lien of boarding and lodging-house keepers. § 1S62. Sale of baggage by boarding or lodging-house keep- ers. ' § 1863. Notices in hotels and boarding-houses. § 1859. The liability of an innlceeper, hotel- I keeper, boarding and lod^'ing-house keeper, for losses of or injuries to personal property, other [tthan money, placed by his guests, boarders, or [lodgers under his care, is that of a depositary for hire; provided, however, that in no case shall ^uch liability exceed the sum of one hundred dol- llars for each trunk and its contents, fifty dol- lars for each valise or traveling bag and ii| contents, and ten dollars for each box, bun- jile, or package and contents, so placed under tjbis care, unless he shall have consented in writ- '. ung with the owner thereof to assume a greater I lability. [Amendment approved March 12, 1895: Istnts. isa"). p. 40. in effect on approval.! j See next section. I Refusing to receive and entertain guests a mis- .lemeanor: Penal Code, sec. 365. j Cubic air law: See post. Appendix, p. 801. I § 1860. If an innkeeper, hotel-keeper, board- ing-house or lodging-house keeper, keeps a fire- i)roof safe, and gives notice to a guest, boarder, |>r lodger, either personally or by putting up n »rlnted notice in a prominent place in the office i>r the room occupied by the guest, boarder, or jOdger. that he keeps such a safe and will not be liable for money, jewelry, documents, or other ar- icles of unusual value and small compass, un- -^ placed therein, he is not liable, except so far §§ 1861, 1862 DEPOSIT. 418 as his own acts shall contribute thereto, for any loss of or Injury to such articles, if not deposited with him to be placed therein, nor in any case more than the sum of two hundred and fifty dol- lars for any or all such property of any individ- ual guest, boarder, or lodger, unless he shall have given a receipt in writing therefor to such guest, boarder, or lodger. [Amendment approved March 12, 1895: Stats. 1895. p. 50. In effect on approval.] § 1861. Hotel men, boarding-house and lodg ing-house keepers, shall have a lien upon the bag- gage and other property of value of their guests, or boarders, or lodgers, brought into such hotel, inn, or boarding or lodging-house by such guests, or boarders, or lodgers, for the proper charges due from such guests, or boarders, or lodgers, for their accommodation, board and lodging, and room rent, and such extras as are furnished at their request, with the right to the possession of such baggage, or other property of value, until all such charges are paid. [New section approved April 1, 1876; Amendments 1875-6, p. 78. In effect April 1, 1876.] Obtaining accommodations with intent to de- fraud: See Penal Code, sec. 537. § 1862. Whenever any trunk, carpet bag, va- lise, box, bundle, or other baggage has hereto- fore come, or shall hereafter come, into the pos- session of the keeper of any hotel, inn, board- ing, or lodging-house, as such, and has remained, or shall remain, unclaimed for the period of six months, such keeper may proceed to sell the same at public auction, and out of the proceeds of such sale may retain the charges for storage, if any, and the expense of advertising and sale thereof; but no such sale shall be made until the expira- tion of four weeks from the first publication of no- tice of such sale in a newspaper published in or nearest the city, town, village, or place in which i , 419 DEPOSIT. 5 1863 (said hotel, inn, boarding or lodging house is situ- ated. Said notice shall be published once a weeli, for four successive weelcs, in some newspai)er, daily or weeldy, of general circulation, and shall contain a description of each trunk, carpet bag, I'valise, box, bundle, or other baggage, as near as i'may be; the name of the owner, if Icnown; the i;name of sucli l<:eei»er, and the tinu' and place of [sale; and the expenses incurred for advertising ['shall be a lien upon such trunk, carpet bag, va- Jlise. box. bundle, or other baggage, in a ratable ijproporlion, according to the value of such piece of I'property, or thing, or article sold; and in case ;:any balance arising from such sale shall not be J'?laimed by the rightful owner within one week (J'rom the day of said sale, the same shall be paid 'into the treasury of the county in which such <'}sde took place; and if the same be not claimed by ■ ;he owner thereof, or his legal representatives, '.vithin one year thereafter, the same shall be paid ijnto the general fund of said county. [New sec- lion approved April 1, 187G; Amendments 1875-6, I). 78. In effect April 1, 187(5.] ^ 1863. Every keeper of a hotel, inn. fe;rtiraing >r lodging house, shall post, in conspicuous )lace, in the office, or public room, and in every ^)edroom of said hotel, boarding-house, inn, or jodging-house, a printed copy of this section, and a itatement of charge, or rate of charges, by the (lay, and for meals or items furnished, and for lodging. No charge or sum shall be collected or • ■' (Mved by any such person for any service not • iiially rendered, or for any item not actually |lelivered. or for any greater or other sum than 'le is entitled to by the general rules and regula- 'iniis of said hotel, inn. boarding or lodging house. "or any violation of tliis section or any provision ritMu contained, tlie offender sliall forfeit to tlie §§ 1864-1866 DEPOSIT. 420 injured party three times tlie amount of tlie sum charged in excess of what he is entitled to. [New section approved April 1. 187G; Amendments 1875- f), p. 78. In effect April 1, ISiU.] ARTICLE V. FINDING. § 1864. Obligation of finder. § 1865. Finder to notify owner. § 1866. Claimant to prove ownership. § 1S67. Reward, etc., to finder. § 1868. Finder may put tbing found on storage. § 1869. When finder may sell tbe tbing found. § 1870. How sale is to be made. § 1871. Surrender of tbing to tbe finder. § 1872. Tbing abandoned. § 1864. One who finds a thing lost is not bound to take charge of it, but if he does so he is thence- forward a depositary for the owner, with the rights and obligations of a depositary for hire. Depositary for hire: See ante, sec. 1851 et seq. § 1865. If the finder of a thing knows or sus- pects who is the owner, he must, with reasonable diligence, give him notice of the finding; and if he fails to do so, he is liable in damages to the owner, and has no claim to any reward offered by him for the recovery of the thing, or to any compensation for his trouble or expenses. Note.— If owner is not known finder must re- port to justice of the peace and advertise. If he fails to do so he forfeits double the value thereof to the owner: Polit. Code, sees. 3136-3142; Penal Code, sec. 485. § 1866. The finder of a thing may, in good faith, before giving it up, require reasonable proof of ownership from any person claiming It. I DEPOSIT. §§ 1867-1872 t [Lost mouey aud goods: See I'olit. Code, sees. .3t)-314:». § 1867. The liuder of a thing is entitled to mpeusatiou for all expenses necessarily incurred ' liiiii in its preservation and for any other ser- cf necessarily performed by him about it, and a ix'asonable reward for l^eeping it. 5 1868. The finder of a thing may exonerate insi'lf from liability at any time by placing it ■ storage with any responsible person of good «,aracter, at a reasonable expense. ;; 1869. The finder of a thing may sell it, if it is I'thiug which is commonly the subject of sale, •I len the owner cannot, with reasonable diligence, 1 found, or being found, refuses, upon demand, 1 pay the lawful charges of the finder, in the Uowing cases: ' . When the thing is in danger of perishing, or ([losing the greater part of its value; or, i. When the lawful charges of the finder fliount to two-thirds of its value, vost money and goods: See Polit. Code, sees. 3;6-3142. 1870. A sale under the provisions of the last action must be made in the same manner as the sie of a thing pledged, iale of pledge: See sees. 3000, post, et seq. \ 1871. The owner of a thing found may exon- elte himself from the claims of the finder by 8:rendoring it to him in satisfaction thereof. 1 1872. The provisions of this article have no a(»licntion to things which have been intention- n' abandoned by their owners. Civ. Code.— 36. S§ 187S. 1SS4 LOAN. 422 CHAPTER III. DEPOSIT FOR EXCHANGE. § 1878. Relations of the parties. § 1878. A deposit for exchange transfers to the depositary, the title to the thing deposited, and creates between him and the depositor the rela- tion of debtor and creditor merely. Deposit for exchange defined: Sec. 1818, ante. Loan for exchange: See post, sec. 1902. TITLE IV. LOAN. Chapter 1. Loan for Use, sees. 1884-1896. II. Loan for Exchange, sees. 1902-1906. HI. Loan of Money, sees. 1912-1920. CHAPTER I. LOAN FOR USE. § 1884. Loan, what. § 1885. Title to property lent. § 1886. Care required of borrower. § 1887. Same. § 1888. Degree of skill. § 1889. Borrower, when to repair injuries. § 1890. Use of thing lent. § 1891. Relending forbidden. § 1892. Borrower, when to bear expenses. § 1893. Lender liable for defects. § 1894. Lender may require return of thing lent. § 1895. When returnable without demand. § 1896. Place of return. § 1884. A loan for use is a contract by whicl one gives to another the temporary possession use of personal property, and the latter agree to retnrn the same thing to him at a future tim^ without reward for its use. 423 LOAN. • 5§ 1885-1892 § 1885. A loan for use does not transfer the ti- tle to the thing; and all its increase during the period of the loan belongs to the lender. § 1886. A borrower for use must use great sare for the preservation in safety and in good condition of the thing lent. ^ 1887. One who borrows a living animal for isr must treat it with great Ivinduess, and pro- ride everything necessary and suitable for it. I Depositary of living animals for Iceeping: See jinte, sec. 1834. ! § 1888. A borrower for use is bound to have lind to exercise such skill in tlie care of the thing lent as he causes the lender to believe him to pos- sess. Compare with sec. 1976. § 1889. A borrower for use must repair all de- teriorations or injuries to the thing lent, which are '•ccasioned by his negligence, however slight. • § 1890. The borrower of a thing for use may 'ise it for such purposes only as the lender might leasonably anticipate at the time of lending. See next section. ! § 1891. The borrower of a thing for use must jot part with it to a third person, without the [onsent of the lender. 1 § 1892. The borrower of a thing for use must 'ear all its expenses during the loan, except such ;8 are necessarily incurred by him to preserve it born unexpected and unusual injury. For such (xpensos he is entitled to compensation from ihe •nder. who. may. however, exonerate himself by irrendcring the thing to the borrower. §§ 1893-1896 • LOAN. 42 § 1893. The lender of a thing for use muse iii' demnify the borrower for damage caused by de fects or vices in it, which he l^new at the cimt of lending, and concealed from the borrower. See also ante, sec. 1833. Loan for exchange: See post, sees. 1902, 1906. § 1894. The lender of a thing for use may a1 any time require its return, even though he lent it for a specified time or purpose. But, if, on the faith of such an agreement, the borrower has made such arrangements that a return of the thing before the period agreed upon would cause him loss, exceeding the benefit derived by him from the loan, the lender must indemnify him foi such loss, if he compels such return, the borrowei not having in any manner violated his duty. § 1895. If a thing is lent for use for a specifiec time or purpose, it must be returned to the lendei without demand, as soon as the time has expired or the purpose has been accomplished. In othe cases it need not be returned until demanded, j § 1896, The borrower of a thing for use mus| return it to the lender, at the place contemplate* by the parties at the time of lending; or if no pai ticular place was so contemplated by them, the:; at the place where it was at that time. LOAN. S9 1902-1906 CHAPTER II. LOAN FOR EXCHANGE. 190-. Loan for exchange, what. iy03. Same. 1904. Title to property lent. 19U5. Contract cannot be modified by lender. ti*(iO. Certain sections applicable. ij 1902. A loan for exchange is a contract by Inch one delivers personal property to another, 1(1 the latter agrees to return to the lender a Hilar thing at a future time, without reward for ; use. .Loan of money as a loan for exchange: See sec. \12. 1903. A loan, which the borrower is allowed • the lender to treat as a loan for use, or for ex- (lange, at his option, is subject to all the pro- • -lions of this chapter. ; 1904. By a loan for exchange the title to the t'ing lent is transferred to the borrower, and he I'lst bear all its expenses, and is entitled to all i increase. 1905. A lender for exchange cannot require I ' borrower to fulfill his obligations at a time, (I in a manner, different from that which was fginally agreed upon. 1906. Sections 1893, 1895. and 1896, apply to ^^^n for exchange. I §§ 1912-1915 LOAN. 42S CHAPTER III. LOAN OF MONEY. § 1912. Loan of money. § 1913. Loan to be repaid in current money. 5 1914. Loan presumed to be on interest. § 1915. Interest, what. § 1916. Annual rate. § 1917. Legal interest. § 1918. Same. § 1919. Interest becomes part of principle, when. § 1920. Interest on judgment. § 1912. A loan of money is a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borrowed. A loan for mere use is governed by the Chapter on Loan for Use. Interest: See sees. 1914 et seq. § 1913. A borrower of money, unless there is an express contract to the contrary, must pay the amount due in such money as is current at the time when the loan becomes due, whether such money is worth more or less than the actual money lent. See sec. 200; see, also, sec. 3302, post. § 1914. Whenever a loan of money is made. It' is presumed to be made upon interest, unless it is otherwise expressly stipulated at the time in writ- ing. [Amendment approved March 30, 1874; Amendments 1873-4, p. 245. In effect July 1, 1874.] § 1915. Interest is the compensation allowed by law or fixed by the parties for the use, or toT- bearance, or detention of money. [Amendmenl; approved March 30, 1874; Amendments 1873-4, p' 245. In effect July 1, 1874.] t 427 LOAN. §5 1916-192C § 1916. When a rate of interest Is prescribed by a law or contract, without specifying the pe- riod of time by which such rate is to be calculated, it is to be deemed an annual rate. § 1917. T^nless there is an express contract in writing', fixing a different rate, interest is payable (HI all moneys at the rate of seven per cent, per iiiinum, after they become due on any instrument (.r writing, except a judgment, and on moneys ,lent or due on any settlement of accounts, from ,the day on which the balance is ascertained, and u moneys received to the use of another and de- tained from him. In the computation of interest ifor a period less than a year, three hundred and l?ixty days are deemed to constitute a year. 'Amendment approved February 15, 1878; Amend- ineuts 1877-8, p. 87. In effect April 16, 1878.] Interest on judgments: See infra, sec. 1920. Compounding interest: See infra, sec. 1919. § 1918. Parties may agree in writing for the payment of any rate of interest, and it shall be !illowed, according to the terms of the agreement, intil the entry of judgment. Stats. 1808, 553, sec. 2; Stats. 1870, G99, sec. 1. >5 1919. The parties may, in any contract in •kvriting whereby any debt is secured to be paid, agree that if the interest on such debt is not punctually paid, it shall become a part of the brincipal, and thereafter bear the same rate of Interest as the principal debt. § 1920. Interest is payable on judgments re- jiovered in the courts of this State, at the rate of |ieven per cent, per annum, and no greater rate, put such interest must not be compounded in any nanner or form. [Amendment approved March §§ 1925-1927 HIRING. 428 30, 1874; Amendments 1873-4, p. 245. In effect July 1, 1874.1 Interest as damages: See post, sec. 3287. TITLE V. HIRING. Chapter I. Hiring in General, §§ 1925-1935. II. Hiring of Real Property, §§ 1941-1950. III. Hiring of Personal Property, §§ 1955- 1959. CHAPTER I. HIRING IN GENERAL. S 1925. Hiring, what. § 1926. Products of thing. § 1927. Quiet possession. § 1928. Degree of care, etc., on part of hirer. § 1929. Must repair injuries, etc. § 1930. Thing let for a particular purpose. § 1931. \\ hen letter may terminate the hiring. § 1932. "When hirer may terminate the hiring. § 1933. When hiring terminates. § 1934. When terminated by death, etc., of party. § 1935. Apportionment of hire. § 1925. Hiring is a contract by which one gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time. Hiring personalty: See post, sees. 1955 et seq. § 1926. The products of a thing hired, during the hiring, belong to the hirer. § 1927. An agreement to let upon hire binds the letter to secure to the hirer the quiet posses- sion of the thing hired during the term of the hiriufT, against all persons lawfully claiming the same. Duty of letter of building in this respect: See post, sec. 1941. Duty of letter of personalty lilcewise: See post, sec. 1955. <^ 1928. The hirer of a thing must use ordinary care for its preservation in safety and in good condition. § 1929. The hirer of a thing must repair all deteriorations or injuries thereto occasioned by his ordinary negligence. Repairs.— This requirement results from the rule of the previous section, and the same rule applies to realty: See post, sec. 1941. With respect to the consequence of not complying with its provisions, I Bee sec. 1931, infra. § 1930. When a thing is let for a particular purpose the hirer must not use it for any other purpose; and if he does, the letter may hold him .responsible for its safety during such use in all events, or may treat the contract as thereby re- scinded. § 1931. The letter of a thing may terminate the hh-ing nnd reclaim the thing before the end of the term agreed upon: • 1. When tlie hirer uses or permits a use of the 'thing hired in a manner contrary to the agree- ment of the parties; or, 2. When the hirer does not, within a reasonable lime after request, make such repairs as he is bound to make. § 1932. The hirer of a thing may terminate the hlrlnc before the end of the term agreed upon: 1. TMien tlie letter does not. within a reason- 5§ 1933-1935 HIRING. 430 able time after request, fulfill his obligations, if any, as to placing and securing the hirer in the quiet possession of the thing hired, or putting it into good condition, or repairing; or, 2. When the greater part of the thing hired, or that part which was and which the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the ordinary negligence of the hirer. § 1933. The hiring of a thing terminates: 1. At the end of the term agreed upon; 2. By the mutual consent of the parties; 3. By the hirer acquiring a title to the thing hired superior to that of the letter; or, 4. By the destruction of the thing hired. § 1934. If the hiring of a thing is terminable at the pleasure of one of the parties, it is termi- nated by notice to the other of his death or in- capacity to contract. In other cases it is not ter- minated thereby. § 1935. When the hiring of a thing is ter- minated before the time originally agreed upon, the hirer must pay the due proportion of the hire for such use as he has actually made of the thing, unless such use is merely nominal, and of no ben- efit to him. For the compensation to which a depositary for hire is entitled upon a termination of the deposit, see ante. sees. 1853-1855. HIRING. s] mi-ma CHAPTEli II. HIRING OF RI:AL PROPERTY. § 1941. Lessor to make dwelling-house flt for Its purpose. § 1942. \V hen lessee may make repairs, etc. § 1943. Term of hiring when no limit Is fixed. § 1944. Hiring of lodgings for indefinite term. ^ 1945. Renewal of lease by lessee's continued possession. ,^ 1943. Notice to quit. § 1947. Rent, when payable. ;i 1948. Attornment of a tenant to a stranger. § 1949. Tenant must deliver notice served on him. § 1950. Lotting parts of rooms forbidden. § 1941. The lessor of a building iutendod for the occupation of human beings must, in the ab- sence of an agreement to the contrary, put it into a condition tit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine. (Amendment approved March 30, 1874; .\mend- inents 1873-4, p. 245. In effect July 1, 1874.] § 1942. If within a reasonable time after no- tice to the lessor, of dilapidations which he ought To repair, he neglects to do so. the lessee may re- I>;ur the same himself, where the costs of such re- pairs do not require an expenditure greater than • mo month's rent of the premises, and deduct the • 'xpenses of such repairs from the rent, or the lessee may vacate the premises, in which case he sliall bo discharged from further payment of rent. or performance of other conditions. [Amend- ment approved March 30, 1874: Amendments 1873- 1. p. 24(5. In effect July 1, 1874.1 $ 1943. A liiring of real property, other than lodgings and dwelling-houses, in places where i there is no usage on the subject, is presumed to §§ 1944-194S HIRING. 432 be for oue year from its commencement, unless otherwise expressed in the hiring. § 1944. A hiring of lodgings or a dwelling- house for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hir- ing at a monthly rate of rent is presumed to be for one month. In the absence of any agreement respecting the length of time or the rent, the hir- ing is presumed to be monthly. § 1945. If a lessee of real property remains in possession thereof after the expiration of the hir- ing, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time not ex- ceeding one month when the rent is payable monthly, nor in any case one year. § 1946. A hiring of real property, for a term not specified by the parties is deemed to be re- newed as stated in the last section, at the end of the term implied by law, unless one of the par- ties gives notice to the other of his intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding one month. Termination of estates at will: See ante, sees. 789 Gt sea. § 1947. When there is no usage or contract to the contrary, rents are payable at the termina- tion of the holding, when it does not exceed one year. If the holding is by the day, week, month, quarter, or year, rent is payable at the termina- tion of the respective periods, as it successively becomes due. § 1948. The attornment of a tenant to a stranger is void, unless it is made with the consent 433 HIKING. 55 1949. 19M of the landlord, or iu couscMiuciice of a jud^'inont '}£ a court of competent jurisdiction. Grants of rents or reversions: See ante, sec. 111. Rights of lessor and lessee, on transfer of realty: See ante, sees. S21 et sea. § 1949. Every tenant who receives notice of any proceeding to recover the real property occu- pied by him, or the possession thereof, must im- mediately inform his landlord of the same, and also deliver to the landlord the notice, if in writ- ing, and is responsible to the landlord for all dam- ages which he may sustain by reason of any omission to inform him of the notice, or to deliver it to liim [if I in writing. [Amendment approved March 30, 1874; Amendments 1873-4, p. 24(5. In effect July 1, 1874.] § 1950. One who hires part of a room fur a dwelling is entitled to the whole of the room, not- witlistanding any agreement to the contrary; and if a landlord lets a room as a dwelling for more than one family, the person to whom he first lets any part of it is entitled to the possession of the whole room for the term agreed upon, and every tenant in the building, under the same landlord, is relieved from all obligation to pay rent to him while such double letting of any room continues. Cubic air law: See post. Appendix, p. 801. Civ. Code-37 g; 1955-1959 HIRING. 434 CHAPTER III. HIRING OF PERSONAL PROPERTY. § 1955. Obligations of letter of personal property. § 1956. Ordinary expenses. § 1957. Extraordinary expenses. § 1958, Return of thing hired. § 1959. Charter-party, what. § 1955. One tvIio lets personal property must deliver it to the hirer, secure his quiet enjoyment thereof agaiust all lawful claimants, put it into a condition fit for the purpose for which he lets it, and repair all deteriorations thereof not occa- sioned by the fault of the hirer and not the natural result of its use. Quiet enjoyment: See sec. 1927 ante. § 1956. A hirer of personal property must bear all such expenses concerning it as might naturally be foreseen to attend it during its use by him. All other expenses must be borne by the letter. § 1957. If a letter fails to fulfill his obligations, as prescribed by section 1955, the hirer, after giv- ing him notice to do so, if such notice can con- veniently be given, may expend any reasonable amount necessary to malie good the letter's de- fault, and may recover such amount from him. § 1958. At the expiration of the term for which personal property is hired, the hirer must return it to the letter at the place contemplated by the parties at the time of hiring; or, if no particular place was so contemplated by them, at the place at which it was at that time. § 1959. The conlract by which a ship is let is termed a charter party. By it the owner may either let the capacity or burden of the ship, con- 435 SERVICE, g ia€5 linuluff the employment of the owners iimstiM-. crew, and e(iuipments. or may surrender the euthv sliip to the charterer, who then provides them himself. The master or a part owner may be a charterer. See ante. sec. 905. TITLE VI. SERVICE. Chapter I. Service with Employment, sees. llXJf)- 2003. II. Particular Employments, sees. 2fM'>0 2072. III. Service without Employment, sees. 2078-2079. CHAPTER I. SERVICE WITH EMPLOYMENT. Article I. Definition of Employment. § 1965. II. Obligations of the Employer. §§ 1969-171. III. Obligations of the Employer, §§ 1975-1992. IV. Termination of Employment, §§ 1996-2003. ARTICLE 1. DEFINITION OF EMPLOYMENT. § 1965. Emplojrment, what. § 1965. The contract of employment is a cou tract by which one, who is called the pniployrr, enuracres another, who is called the employee, to , or nuiniffstly injurious to his employer to do so. § 1983. An employee is bound to exercise a rea- sonable degree of skill, unless bis employer has notice, before employing him, of his want of sldll. § 1984. An employee is always bound to use such skill as he possesses, so far as the same is required, for the service specified. [Amendnieni, approved March 30, 1874; Amendments 187.'J-4, 247. In effect July 1, 1874.] § 1985. Everything which an emi)loyee ac- quires by virtue of his employment, except the compensation, if any, which is '^ et Beq. § 1997. Every emph>ynient is terminated: 1. By the expiration of its appointed term; 2. By the extinction of its si^^jject; 3. By the death of the employee; or. 4. By Ids legal incapacity to act as such. Termination of employment: See last section. Termination of agency generally: See see. 2355, post, et seq. § 1998. An employee,, unless the term of his service has expired, or unless he has a right to dis- continue it at any time v^'ithout notice, must con- tinue his service after notice of the death or in- capacitj' 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 communi- cated to such successor. The successor must com- pensate the employee for such service according to the terms of the contract of employment. § 1999. An employment having no specified term may be terminated at the will of either par- ty, on notice to the other, except where otherwise provided by this title. § 2000. An employment, even for a specified term, may be terminated at any time by the em- ployer, in case of any willful breach of duty by the employee in the course of his employment, or In case of his habitual neglect of his duty or continued incapacity to perform it. Servant when mav be discharged: See post. sec. 2015. Seamen, when may be discharged: See post, sec. 12050; wrongful discharge of seamen, post, sec. 2057. |§ 2001-2003 SERVICE. 442 § 2001. An employment, even for a specifier! ter'm, may be terminated by the employf'e at any time, in case of any willful or permanent breach of the obligations of his employer to him as an employee. Employee's compensation in such case: See post, sec. 2003. § 2002. An employee, dismissed by his employ- er for good cause, is not entitled to any compen- sation for services rendered since the last day up- on which a payment became due to him under the contract. Discharging servant: See sec. 2015. § 2003. An employee who quits the service of his employer for good cause is entitled to such proportion of the compensation wl ich would be- come due in case of f^^ll performance, as the ser- vices which he has already rendered bear to the services which he was to render as full perform- ance. Terminating employment by employee: See sup- ra, sec. 2001. M3 SERVICE. II 2009. 2010 CHAPTER II. PARTICULAR EMPLOYMENTS. A.rticle I. Master and Servant, §§ 2009-2015. II. Agents. §§ 2019-2022. III. Factors, §§ 2026-2030. IV. Shipmasters, §§ 2034-2044. V. Mates and Seamen, §§ 2048-2066. VI. Ship's Managers, §§ 2070-2072. ARTICLE I. MASTER AND SERVANT. 5 2009. Servant, what. § 2010. Term of hiring. § 20U. Same. § 1012. Renewal of hiring. § 2013, Time of service. § 2014. Servant to pay over without demand. § 2015. When servant may be discharged. § 2009. A servant is one who is employee always on board when entering or leaving a port, harbor, or river. § 2036. On entering or leaving a port, hnrltor. or river the master of a ship must talce a pilot if one offers himself and while the pilot is on board the nnvigation of the ship devolves on him. Duties of Pilots and Pilot Commissioners, see Pol. Code, sees. 2420-2447-2401. § 2037. The master of a ship may enforce tlie obedience of the mnte and seamen to his Inwfid commands by confinement and other reason:i]>le corporal punishment, not prohil>ited by nets of §§ 2038-2044 SERVICE. 448 Congress, being responsible for the abuse of liis power. § 2038. The master of a ship may confine any person on board, during a voyage, for willful diso- bedience to his lawful commands. § 2039. If. during a voyage, the ship's supplies fail, the master, witli 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 giving security therefor. § 2040. The master of a ship must not aban- don it during the voyage, without the advice of the other officers. § 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 tal^;en are lost from causes beyond his control, he is exonerated from liability. § 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 must account to his employer for all profits thus made by him. § 2043. The master of a ship must use great care and diligence in the performance of his du- ties, and is responsible for all damage occasioned by his negligence, however slight. § 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 Agen- cy. Agency in general: See sees. 2295 et seq. SERVICE. fS 20i8.M0 Koltoiiii-y. iiiasti'i- may hypothccatt? \\\Hni: S«'<.' .SOCS. ;{()11) Ot SLHl. liespoudentia, master may hypothecate upon: Sees. 3(Ki8 et seq. ARTICLE V. MATES AND SEAMEN. 9 2048. Mate, what. § 2049. Seamen, what. § 2050. Mate and seamen, how engaged and discharged. § 2051. Unseaworthy vessel. § 2052. Seamen not to lose wages or lien by agreement. § 2053. Special agreement with seamen. § 2054. Wages depend on freightage. § 2055. When wages &c., begin. § 2056. Wages, where voyage is broken up before departure. § 2057. Wrongful discharge. § 2058. Wages, when not lost by wreck. § 2059. Certificate. § 2060. Disabled seamen. § 2061. Maintenance of seamen during sickness. § 2062. Death on the voyage. § 2063. Theft, &c., forfeits wages. § 2064. Seamen cannot ship goods. § 2065. Embezzlement and injuries. (Repealed.) § 2066. Law governing seamen. § 2048. The mate of a ship is the otticer next in rank to the master, and in ease of the master's disability he must take his place. By so doinjr he does not lose any of his rights as mate. § 2049. All persons employed in the navigation of a ship, or upon a voyage, other than the master and mate, are to be deemed seamen within the provisions of this Code. § 2050. The mate and seamen of a ship are en- gaged by the master, and may be diseli;irg»'d by him at any period of the voyage, for willful and persistent disobedience or gross disqualilication, but cannot otherwise be discharged before the termination of the voyage. §§ 2051-2057 SERVICE. 450 § 2051. A mate or seaman is uot bound to go to Lea in a sliip that is not seaworthy; and if there is reasonable doubt of its seaworthiness, he may refuse to proceed until a proper survey has been had. Seaworthiness defined: See. 2682, § 2052. A seaman cannot, by reason of any agreement, be deprived of his lien upon the ship, or of any remedy for the recovery of his wages to which he would otherwise have been entitled. Any stipulation bj^ 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. No special agreement entered into by a seaman can impair any of his rights, or add to any of his obligations, as defined by law, unless he fully understands the effect of the agreement, and receives a fair compensation therefor. § 2054. Except as hereinafter provided, the wages of seamen are due when, and so far only as, freightage is earned, unless the loss of freight- age is owing to the fault of the owner or master. § 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 agreement for his beginning work, or from his presence on board, whichever first happens. § 2056. Where a voyage is broken up before departure of the ship, the seamen must be paid for the time they have served, and may retain for their indemnity such advances as they have re- ceived. § 2057. When a mate or seaman is wrongfully discharged, or is driven to leave the ship by the 451 SERVICE. IS 2068-200 cruelty of the master on the voyage, it is theu ended with respect to him, and he may thereup- on recover his full wages. § 2058. In case of loss or wreck of the sliip, a seaman is entitled to his wages up to the time of the loss or wreck, whetlier freightage has been earned or not, if he exerts himself to the utmost to save the ship, cargo, and stores. § 2059. A certificate from the master or chief surviving otiicer of a ship, to the effect that a sea- man exerted himself to the utmost to save the ship, cargo, and stores, is presumptive evidence of the fact. § 2060. Where a mate or seaman is prevented from rendering service by illness or injury, incur- red without his fault, in the discharge of his duty on the voyage, or by being wrongfully dis- charged, or by a capture of the ship, he is entitled to wages notwithstanding; but in case of a cap- ture, a ratable deduction for salvage is to be made. § 2061. If a mate or seaman becomes sick or disabled during the voyage without his fault, the expense of furnishing him witli suitable medical advice, medicine, attendance, and other provision for his wants, must be borne by the ship till tliQ close of the voyage. § 2062. If a mate or seaman dies during the I voyage, his personal representatives are entitled to j his wages to the time of his deatli. if he would have been entitled to tliem had he lived to tlie end of the voyage. § 2063. Desertion of the ship witliouf cause, or a justifiable discharge by the master during the voyage, for misconduct, or a tlieft of any part of the cargo or appurtenances of the ship, or a willful §§ 2064-2072 SERVICE. 452 injury thereto or to the ship, forfeits all wages due for the voyage to a mate or seaman thus in fault. § 2064. A mate or seaman may not, under any pretext, ship goods on his own account without permission from the master. § 2065. Repealed. [March 30, 1874; Amend- ments 1S73-4, 247. In effect July 1, 1874.1 § 2066. 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. § 2071. Duties of manager. § 2072. Compensation. § 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. § 2071. Unless otherwise directed, it is the duty of the manager of a ship to provide for the complete seaworthiness of a ship; to talie 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. A managing owner is presumed to have no right to compensation for his own services. 453 SERVICE. Sg 20T8-20W CIIArTER III. SERVICE WITHOUT EMPLOYMENT. § 2078. Voluntary interference with property. § L'079. Salvage. § 2078. One who officiously, and without tho consent of the real or apparent owner of a thiiiu, takes it into his possession for the ptu-pose of ren- dering: a service al>out it, must complete such s»t- vice, and use ordinary care, diligence, and reason- able skill about the same. He is not entitle*! to any compensation for his service or expenses, ex- cept that he may deduct actual and necessary ex- penses incurred by him about such service from any profits which his service has caused the thimr to acquire for its owner, and must account to the owner for the residue. Employment without reward: See sees. 197.") et seq. Gratuitous carriers: Sec. 20S0. {? 2079. Any person, other than the master, mate, or a seaman thereof, who rescues a ship, her appurtenances, or carcro, from dancrer, is entitled to a reasonable compensation therefor, to be paid out of the property saved. He has a lien for such claim, which is rec^ulated by the Title on Liens; but no claim for salvacre, as such, can accrue against any vessel, or her freight, or cargo, in favor of the owners, officers, or crew of another vessel belonging to the same owners; but the ac- tual cost at the time of the services rendered by one such vessel to another, when in distress, are payable through a general average contribution on the property saved. rAmen4; 1847, c. 16; 1848, c. 41; 1851. c. 43; 187U-1. c. 100": References by code commissioners. See also sees. 2197, 2198. Rights and duties of carriers generally: Sees. 2180 et seq., 2194 et seq. General average: Sees. 2148 et seq. § 2089. Carriers without reward are subject to the same rules as employees without n-ward. except so far as is otherwise provided by this ti- tle. Employees without reward: See sees. 1975 et seq. Service without employment: See sees. 2078 et seq. § 2090 . A carrier without reward, who haa begun to perform his undertaking, 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 position as before he commenced the carriage. Compare with sees. 1975. 1976. §§ 2096-2102 CARRIAGE. 456 CHAPTER 11. CARRIAGE OF PERSONS. Article I. Gratuitous Carriage, § 2096. II. Carriage for Reward, §§ 2100-2104. ARTICLE I. GRATUITOUS CARRIAGE OP PERSONS. § 2093. Degree of care required. § 2096. A carrier of persons without reward must use ordinary care and diligence for their safe carriage. Duty of gratuitous employee, generally: See sees. 1975, 1976. Carriers of persons, generally: See sees. 2180 et seq. ARTICLE II. CARRIAGE FOR REWARD. § 2190. General duties of carrier. § 2101. Vehicles. § 2102. Not to overload his vehicle. § 2103. Treatment of passengers. § 2104. Rate of speed and delays. § 2100. A cari'ier 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. § 2101. A carrier of persons for reward is bound to provide vehicles safe and fit for the pur- poses to which they are put. and is not excused for default in this respect by any degree of care. § 2102, A carrier of persons for reward must not overcrowd or overload his vehicle. Railroad corporations to furnish accommoda- tions: Sec, 483. 457 CARRIAGE. (I 2108-2Ua § 2103. A carrier of persons for reward must give to passengers all sucli aceoniuKxlatlons uh are usual and reasonable, and must treat th«Mn with civility, and give them a reasonal»!<' -l ••.■ of attention. § 2104. A carrier of persons for rewanl must travel at a reasonable rate of speed, and without any unreasonable delay, or deviation from liis proper route. CHAPTER III. CARRIAGE OF PROPERTY. Article I. General Definitions, § 2110. II. Obligations of the Carrier, §§ 2114-2122. III. Bill of Lading. §§ 2126-2132. IV. Freightage, §§ 2136-2144. V. General Average, §§ 2148-2155. ARTICLE I. GENERAL DEFINITIONS. § 2110. Freight, consignor, &c. what. § 2110. Property carried is called freight; the reward, if any. to be paid for its carriage is called freightage; the person who delivers the freight to the carrier is called the consignor; and the person to whom it is to be delivered is called the con- signee. Freightage, when to be paid: See sees. 2i:i«> et seq. Bill of lading.— For definition of bill of lading, see sec. 212G, Civ. Code.— 39. §§ 2114-2U7 CARRIAGE. 458 ARTICLE II. OBLIGATIONS OF THE CARRIER. § 2114. Care and diligence required of carriers. § 2115. Carrier to obey directions. § 2116. Conflict of orders. § 2117. Stowage, deviation, &c. § 2118. Delivery of freight. § 2119. Place of delivery. § 2120. Obligations of carrier when freight is not deliv- ered to consignee. § 2121. How carrier may terminate his liability. § 2122. When consignee cannot be found. [Repealed.] § 2114. A carrier of property for reward must use at least ordinary care and diligence in the performance of all his duties. A carrier without reward must use at least slight care and dili- gence. § 2115. A carrier must comply with the direc- tions 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, When the directions of a consignor and consignee are conflicting, the carrier must com- ply with those of the consignor in respect to all matters except the delivery of the freight, as to which he must comply with the directions of the consignee, unless the consignor has specially for- bidden the carrier to receive orders from the con- signee inconsistent with his own. § 2117. A marine carrier must not stow freight upon deck during the voyage, except where it is usual to do so, nor make any improper deviation from or delay in the voyage, nor do any other unnecessary act which would avoid an insurance in the usual form upon the freight. 459 CARRIAGE. {; 2118-2121 § 2118. A carrier of property must deliver It to the consignee, at the place to whifh it is ad- dressed, in the manner usual at that phu-e. § 2119. If there is no usajje to the contrary at the place of delivery, freijrht must he 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 wliarf where the ship moors, within a reasonable distance from the place of address; or, if there is no wharf, on board a lighter alongside the ship; or, 3. In other cases, it must be delivered to the consignee or his agent, personally, if either can. with reasonable diligence, be found. Delivery to connecting carrier: See sec. L'lini. § 2120. If, for any reason, a carrier does not deliver freight to the consignee or his agent, per- sonally, he must give notice to the consignee of its arrival, and keep the same in safety upon his responsibility as a warehouseman, until the con- signee has had a reasonable time to remove it. If the place of residence or business of the consignee be unknown to the carrier, he may give the no- tice by letter dropped in the nearest postotlice. [Amendment, approved March 30, 1874; Amend- ments 1873-4, p. 247. In effect July 1, 1874. J § 2121. If a consignee does not accept and re- move freight within a reasoiinl>le time after the ;carrier has fulfilled his obligation to deliver, or • duly offered to fuHill the same, the carrier may ex- jonerate liimself from further liability by placing [the freight in a suitable warehouse, on stctrage. on fiecount of the consignee, and giving notice there- )f lo him. [Amendment, approved March 30, 1874; ■§§ 2122-2128 CARRIAGE. 460 Amendments 1873-4. p. 248. In effect July 1, 1874.] § 2122. [Repealed, March 30, 1874; Amend- ments 1873-4, 248. In effect July 1, 1874.] ARTICLE III. BILL OF LADING. § 2126. Bill of lading, what. § 2127. Bill of lading negotiable. i 212S. Same. § 2129. Effect of bill of lading on rights, &c., of carrier. § 2130. Bills of lading to be given to consignor. § 2131. Carrier exonerated by delivery according to bill of lading. § 2132. Carrier may demand surrender of bill of lading be- fore delivery. § 2126. A bill of ladius: is an instrument in writinsT, sigrned by a carrier or his agent, describ- ing 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. Issuing fictitious bill of lading: Penal Code. sec. 577. § 2127. All the title to the freight which the tirst holder of a bill of lading had when he re- ceived it. passes to every subsequent indorsee thereof in good faith and for value, in the ordin- ary course of business, with like effect and in like manner as in the case of a bill of exchange. Delivery without canceling receipt a penal of- "" fense: Penal Code. sec. 582. § 2128. When a bill of lading is made to "bear- er." or in equivalent terms, a simple transfer thereof, by delivery conveys the same title as an » i indorsement. b\ 461 CARRIAGE. {} 212J-2IM § 2129. A bill of lading' does not Jiltcr ilu? ri^'hls or obli^^'utious of the cjirrier, as (iollned in this clijipter, iiuloss it is plainly inconsistent there- witli. § 2130. A carrier must subscribe and deliver to the consieing ready and willing, offer to com- plete the transit, he is entitled to the full freight- age. If he does not thus offer completion, and the the carrier, being ready and willing, offers to corn- consignee receives the freight only from necessity, the carrier is not entitled to any freightage. 463 CARRIAGE. S| :h3-2im § 2143. If Iroight is carried funlM-r. or in«»rt' expeditiously, tlian was agreed upon by the par- ties, the carrier is uot entitled to additional coni- pensation, and cannot refuse to deliver It, on the demand of the consignee, at the place and time of its arrival. § 2144. A carrier has a lien for freightage, which is regulated by the Title on Liens. Liens: See sees. 2872, post, et seq. Lien ou passenger's luggage: Sec. 2191. ARTICLE V. GENERAL AVERAGE. § 2148. Jettison and general average, what. , § 2149. Order of jettison. § 2150. By whom made. 1 § 2151. Loss, how borne. § 2152. General average loss, how adjusted. § 2153. Values, how ascertained. j § 2154. Things stowed on deck. I § 2155. Application of the foregoing rules. ! § 2148. A carrier by water may, when in case I of extreme peril it is necessary for the safety of the ship or cargo, throw overboard, or otherwise sacrifice, any or all the cargo or appurtenances of the ship. Throwing property overboard for such purpose is called jettison, and the loss iiuurred thereby is called a general average loss. § 2149. A jettison must begin with the most bulky and least valuable articles, so far as pos- sible. § 2150. A jettison can be made only by author- ity of the master of the ship, except in case of his disability, or of an overruling necessity, when it may be made by any other person. §§ 2151-2155 CARRIAGE. 464 § 2151. The loss iueurred by a jettison, when lawfully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage, and cargo for the beneht of which the sacrifice is made, as well as by the owner of the thing sacrificed. § 2152. The proportions in which a general av- erage loss is to be borne must be ascertained by an adjustment, in Avhich the owner of each sepa- rate interest is to be charged with such proportion of the value of the thing lost as the value of his part of the property aU'ected bears to the value of the whole. But an adjustment made at the end of the voyage, if valid there, is valid everywhere. § 2153. In estimating values for the purpose of a general average, the ship and appurtenances must be valued as at the end of the voyage, the freightage at one-half the amount due on delivery, and the cargo as at the time and place of its dis- charge; adding, in each case, the amount made good by contribution. § 2154. The owner of things stowed on decfe, in case of their jettison, is entitled to the benefit of a general average contribution only in case it is usual to stow such things on declc upon such a voyage. § 2155. The rules herein stated concerning jet- tison are equally applicable to every other vol- untary sacrifice of property on a ship, or expense necessarily incurred, for the preservation of the ship and cargo from extraordinary perils. 465 CARRIAGE. (( 2161. 21Q CHAPTER IV. CARRIAGE OF MESSAGES. § 2161. Obligations of carrier of messages. § 2162. Degree of care and diligence required. § 2161. A carrier of mcssa«res for rownnl. othor tlian l>y tolesraph, must deliver them at tlH» idafv to wliieli tliey are addressed, or to tlie person for wliom tliej* are intended. Siicli carrier, by tclo- {^'rapli, must deliver them at such place and to such person, provided the place of address, or the person for M'hom they are intended, is within a distance of two miles from the main office of the carrier in the city or town to which the messages are transmitted, and the carrier is not required, in makinj; the delivery, to pay on his route toll or ferriajxe; but for any distance beyond one mile from such ottice, compensation may be charired for a messenjxer employed by the carrier. [Amend- ment, approved March 30, 1874: Amendnu'nts 1873-4, p. 248. In effect .Tuly 1, 1874.] Neprlect or postponement in delivery: See Penal Code, sec. 038. Order of transmitting^ messages: Sec. 2208. Kefusal to deliver message, penalty: Sec. 2209. Carrier of telegraphic messages: See post: Sees. 2207 et seq. § 2162. A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages, f Amendment. ap|>roved March 30. 1874: Amendments 1873-4, p. *-M!). In effect July 1, 1874.] §§ 216S, 2169 CARRIAGE. 466 CHAPTER V. COMMON CARRIERS. Article I. Common Carriers in General, §§ 2168-2177. II. Common Carriers of Persons, §§ 2180-2191. III. Common Carriers of Property, §§ 2194-2204. IV. Common Carriers of Messages, §§ 2207-2209. ARTICLE I. COMMON CARRIERS IN GENERAL. § 2168. Common carrier, what. § 2169. Obligation to accept freight. § 2170. Obligation not to give preference. § 2171. What preferences he must give. § 2172. Starting. § 2173. Compensation. § 2174. Obligations of carrier altered only by agreement. § 2175. Certain agreements void. § 2173. Effect of written contract. § 2177. When not liable for loss. § 2168. Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. [In effect July 1. 1874.] Carriage in general: See sees. 2085 et seq. Inland and marine carriers defined: Sees. 2087, 2088. With regard to the regulation of fares and freightage on railroads, see ante, sec. 484. Rights and liabilities of carriers: See post, under "Carriers of Persons and Carriers of Property," sees. 2180 et seq. and 2194; and as to rights and duties of carriers by sea, see sec. 2088, ante. § 2169. A common carrier must, if able to do so, accept and carry whatever is offered to him, at a reasonable time and place, of a kind that he undertakes or is accustomed to carry. 417 CARRIAGE. ;g 2170-2171 Refusal by railroad to carry passoiiKers: Sec 482, ante. Want of room: See post, sec. 2185. § 2170. A common carrier must not Rive prefer- ence, in time, price, or otherwise, to one person over anotlier. Every common carrier of passen- gers by railroad, or by vessel plyin;; upon waters lyinp wholly within this Slate, sliall establish a schedule time for the starting; of trains or vessels from their respective stations or wharves, of which public notice shall be given, and shall, weather permitting, except in case of accident or detention caused by connecting lines, start tlieir said trains or vessels at or within ten minutes af- ter the schedule time so established and notice given, under a penalty of two hundred and fifty dollars for each neglect so to do. to l)e recoven^l by action before any court of competent jurisdic- tion, 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, [Amendment, approved April 2. 1880; Amendments 1880, p. 1. In effect April 2. 1880.1 Time-table.— For railroads, see ante. sec. 481, and generally, infra, sec. 2172. § 2171. A common carrier must always give a preference in time, and may give a preference in price, to the United States and to this State. § 2172. A common carrier must start at such time and place as he announces to the public, un- less detained by accident or the elements, or in order to connect witli carriers on other lines of travel. [Amendment. api>roved M.-in-li .*>(V 1874: Amendments 1873-4. p, 240. In effect July 1, 1874.] See sec. 2170. ante, and sec. LMOt;. i)ost. §§ 2173-2176 CARRIAGE. 468 § 2173. A common carrier is entitled to a rea- sonable compensation and no more, which he may require to be paid in advance. If payment thereof is refused, he may refuse to carry. Lien for freight: See sec. 2144. Lien on luggage of passenger: Sec. 2191. § 2174. The obligations of a common carrier cannot be limited by general notice on his part, but may be limited by special contract. [Amend- ment, approved March 30, 1874; Amendments 1873-4, p. 249. In effect July 1, 1874. J Compare with sec. 2170, infra, a7id sec. 2201, post. Limiting liability by special contract: See sec. 2175. § 2175. A common carrier cannot be exonerat- ed, by any agreement made in anticipation there- of, from liability for the gross negligence, fraud, or willful wrong of himself or his servants. § 2176. A passenger, consignor, or consignee, by accepting a ticket, bill of lading, or written contract for carriage, with a linowledge of its terms, assents to the rate of hire, the time, place, and manner of delivery therein stated; and also to the limitation stated therein upon the amount of the carrier's liability in case property carried in pacl^ages, trunl^s, or boxes, is lost or injured, when the value of such property is not named; and also to the limitation stated therein to the carrier's lia- bility 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, p. 249. In effect Julv 1, 1874.] 4G9 CARRIAGE. {{ 21T7-2U1 § 2177. A common carrier is not responsible for loss or miscarriage of a letter, or packuK** huviujj tlio form of a letter, containing mout-y or notch, bills of exchange, or other papers of valne, unles.s he be informed at the time of its receii»i of tin- value of its contents. [New section, api)roveii March 30, 1874; Amendments 1873-4, p. 250. In ef- fect July 1, 1874.] Messages, carriage of: See sec. 2101, aut«'. ARTICLE II. COMMON CARRIERS OF PERSONS. § 2180. Obligation to carry luggage. § 2181. Luggage what. § 2182. Liability for luggage. § 2183. Luggage, how carried and delivered. § 2184. Obligation to provide vehicles. § 2185. Seats for passengers. § 2186. Regulations for conduct of business. § 2187. Fare, when payable. § 2188. Ejection of passengers. § 2189. Passenger who has not paid fare. § 2190. Fare not payable after ejection. § 2191. Carrier's lien. § 2180. A common carrier of persons, unless his vehicle is fitted for the reception of persons ex- clusively, must receive and carry a reasonable amount of luggage for each passenger without charge, except for an excess of w^eight over on«' hundred pounds to a passenger: provided. th;it if sucli carrier be a proprietor of a stage line, he may not receive and carry for each passeng«'r by such stage line, without charge, more than sixty pounds of luggage. [Amendment approved March I), 1878. •amendments 1877-8, p. 87. In effect May 8. 1878.] § 2181. T.ugg.Tge mny consist of wh.-itcvcr tlic passenger takes with him for his personal use and convenience according to the habits or wants Civ. Code.— 40. §§ 2182-2185 CARRIAGE. 470 of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose of the journey. No crate, cover, or other protection shall be required for any bicycle carried as luggage, but no passenger shall be entitled to carry as luggage more than one bicycle. [Amendment, approved February 9, 1897. Stats. 1897, ch. IV.] § 2182. The liability of a carrier for luggage re- ceived by him with a passenger is the same as that of a common carrier of property. See sec. 2194, post. Lien on baggage for fare: See sees. 2191, 3051, post. § 2183. A common carrier must deliver every passengers luggage, whether within the pre- scribed weight or not, immediately upon the ar- rival of the passenger at his destination; and, un- less the vehicle would be overcrowded or over- loaded thereby, must carry it on the same vehicle by which he carries the passenger to whom it be- longed, except that 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 trans- ported, it is carried at their risk. [Amendment, approved March 80, 1874; Amendments 1873-4, p. 2.=>0. In effect July 1, 1874.] Duty to furnish check: See sec. 479, ante. § 2184. A common carrier of persons must pro- vide a sufficient number of vehicles to accommo- date all the passengers who can be reasonably ex- pected to require carriage at any one time. See sec. 2185, posr. § 2185. A common carrier of persons must pro- vide every passenger with a seat. He must not 471 CARRIAGE. 5J 2186-21»l overload bis vehicle bj' receiving auU. § 2186. A commou carrier of persons may make rules for the conduct of bis business, anil may require passengers to conform to them, if they are lawful, public, uniform in tlicir applica- tion, and reasonable. Uules and regulations: iSee ante, sees. 4(>r>, 484, subs. 10, 11. S 2187. A common carrier may demand the fare of passengers, eitlier at starting or at any subsequent time. i^ 2188. A passenger who refuses to pay his fare or to conform to any lawful regulation of the carrier, may be ejected from the vehicle by the carrier. But this must be done with as little vio- lence as possible, and at any usual stopping place or near some dwelling-house. See ante, see. 487. Ejecting passenger for not paying fare: Sec. 487. § 2189. A passenger upon a railroad train who has not paid his fare before entering the train, if he has been afforded an opportunity to do so, must, upon demand, pay ten per cent in addition to the regular rate. Ejecting passenger for nonpayment of fare: Sec. 487. § 2190. After having ejected a passenger, a car- rier has no right to require the payment of any part of his fare. 15 2191. A common carrier lias a lien upon the luggage of a passenger for the payment of such § 2194 CARRIAGE. 472 fare as be is entitled to from him. This lien is regulated by the Title on Liens. Penalty for overcbargres: Penal Code, sec. 525. See general principle stated in regard to lien for work and labor performed about personalty, post, sec. 3051. Lien for freight: Sec. 2144. ARTICLE III. COMMON CARRIERS OF PROPERTY. § 2194. Liability of inland carriers for loss. § 2195. When exemptions do not apply. § 2196. Liability for delay. § 2197. Liability of marine carriers. § 2198. Same. § 2199. Perils of sea, what. § 2200. Consignor of valuables to declare their nature. § 2201. Delivery of freight beyond usual route. § 2202. Proof to be given in case of loss. § 2203. Carrier's services, other than carriage and de- livery. § 2204. Sale of perishable property for freight. § 2194. Unless the consignor accompanies the freight and retains exclusive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself from liability pursuant to sections 2118 to 2122. for the loss or injury thereof from any cause whatever, except: 1. An inherent defect, vice, or weakness, or a spontaneous action, of the property itself: 2. The act of a public enemy of the United States, or of this State: 3. The act of the law: or. 4. Any irresistible superhuman cause. Inland carrier defined: See ante, sec. 2087. Liability as warehouseman: See ante, sec. 2120. Termination of liability: See sees. 2118-2122, ante. Selling perishable articles: See infra, sec. 2204. 478 CAKKlAtii;. 85 21S6-2M0 § 2195. A cominou carrier is liable, even in the cases exceptetl by the last section, if his ordinary uegligeuce exposes the property to the cause of the loss. § 219t). A common carrier is liable for ti.jay only when it is cause^ called the beneficiary. § 2219. Every one who voluntarily assumes a rolalion of personal confidence with another is deemed a trustee, within the meaning of this chap- ter, not only as to the person who reposes such confidence, but also as to all persons of whose af- fairs 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. A trust may be created for any pur- pose for which a contract may lawfully be made, except as otherwise prescribed by the Titles on Uses and Trusts and on Transfers. § 2221. Subject to the provisions of section 852. a voluntary trust is created, as to the trustor and beneficiary, by any words or acts of the trus- tor, indicating:: with reasonable certainty. 1. An intention on the part of the trustor to cre- ate a trust and. 2. The subject, purpose, and benelieiary of the trust. Creation of involuntary trust: See sees. 222;i, 2224. Trusts for benefit of third persons: See sec. 2231. post. § 2222. Subject to the provisions of section 852. a voluntary trust is created, as to the trustee. by any words or acts of his indicatin;:, witli rea- sonable certainty: 1. His acceptance of the trust, or his acknowl- edgment, made upon sufficient consideration, of Its existence: and. |§ 2223-2228 TRUST. 478 2. The subject, purpose, and beneficiary of the trust. § 2223. One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner. Compensation of involuntary trustee: See sec. 2275. § 2224. One who gains a thing by fraud, acci- dent, mistalie, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it. Implied trusts is, that is, trusts arising where one talves property subject to trust with notice there- of, or not for value: See ante, sees. 869, 870; consult also sees. 2243, 2263. ARTICLE II. OBLIGATIONS OF TRUSTEES. § 2228. Trustee's obligation to good faith. § 2229. Trustee not to use property for his own profit. § 2230. Certain transactions forbidden. § 2231. Trustee's influence not to be used for his ad- vantage. § 2232. Trustee not to assume a trust adverse to interest of beneficiary. § 2233. To disclose adverse interest. § 2234. Trustee guilty of fraud, when. § 2235. Presumption against trustees. § 2236. Trustee mingling trust property with his own. § 2237. Measure of liability for breach of trust. § 2238. Same. § 2239. Co-trustees, how far liable for each other. § 2228. In all matters connected with his trust, a trustee is bound to act in the highest good faith toward his beneficiary, and may not obtain any advantage therein over the latter by the slightest »T9 TRUST. li 2223, 2:C0 misrepreseutatiou, coueealmeiii, ilin-ni, or advcTKc pressure of auy kiud. § 2229. A iruslee may not use or deal \s iili the irusi properly lor bis owu prolil, or lor uuy oilier purpose uueouuecled \vith llie Irust, in auy uiau- uer. Note.— l*urebaser from trustee will be cbar^ed witb tbe trust or not, depeudiug upou sucb pur- cbaser's knowledge of tbe real situation of tbe parties: JSee see. 2203. Presumption of undue intlueuee.— So eareful is tbe law of tbe interests of tbe trustee tbat it pre- sumes trausaetions between tbe trustee and bene- liciary to bave been entered into by tbe latter un- der undue influence: Sec. 2235; and all violation of tbe duties of tbe trustee prescribed in tbis ar- ticle are declared to be fraudulent: Sec. 2234. § 2230. Neitber a trustee nor any of bis agents maj' take part in any transaction concerning tbe trust in wbicb be or any one for wbom be acts as agent lias an interest, present or contingent, ad- verse to that of his beneficiary, except as follows: 1. When tbe beneficiary, having capacity to contract, with a full knowledge of the motives of tbe 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, tbe proper court, upon the like informa- tion of the facts, grants the like permission: or. 3. When some of the beneficiaries having capac- ity to contract and some not having it. the former grant permission for themselves, and the proper court for the latter, in the manner above i>re- scribed. Duty to inform beneficiary: See sec. 223.^ Infra. Undertaking inconsistent trust: See sec. 2232. §§ 2231-2237 TRUST. 480 § 2231. A trustee may not use the iutiueuce whicli liis position gives him to obtain any advant- age from his beneliciary. § 2232. No trustee, so long as he remains in the trust, may undertake another trust adverse in its nature to the interest of his beneliciary in the sub- ject of the trust, without the consent of the latter. Assuming another trust.— This section is but a further application of the principle stated in an- other form in section 2230, that the trustee must not place himself in a position inconsistent with his duty to his beneficiary. Trustee's duty to disclose adverse interest: Com- pare with sec. 2230. Removal of trustee: See sees. 2282, 2283. § 2233. M 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 there- of, and may be at once removed. § 2234. Every violation of the provisions of the preceding sections of this article is a fraud against the beneficiary of the trust. § 2235. All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee re- mains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence. § 2236. A trustee who willfully and unu(ices- sarily mingles the trust property with his own, so as to constitute himself in appearance its absolute owner, is liable for its safety in all events. § 2237. A trustee who uses or disposes of the 481 TRUST. _ ._ . _i4 iruisL properly, coulniry to seclion 2'12\j, luay, ul the opliou of the beueliciury, be re(iuire»l to ue- couut lor all prohts so made, or to pay the value of its use, aud, if he has disposed thereof, to re- place it, witli its fruits, or to aecouut for its pro- ceeds, with interest. Liability for uouiuvestmeut of funds: See see. 2262, post. Degree of diligence requisite: Sec. 2250, i)ost. § 2238. A trustee who uses or disposes of the trust property in any manner not authorized by the trust, but in good faith, and with intent l«> serve the interests of the beneticiary, is liable only to make good whatever is lost to the beneticiary by his error. § 2239. A trustee is responsible for the wrong- ful acts of a cotrustee to which he consented, or which, by his negligence, he enabled the latter to commit, but for no others. Compare also this section with sections 2."i(>S and 2288. AIITICLE III. OBLIGATIONS OF THIRD PERSONS § 2243. Third person, when Involuntary trustoo. § 2244. When third person must see to application of trust property. § 2243. I']very one to whom property is trans- ferred in violation of a trust, holds the same as an involuntary trustee under such trust, unless he purcliased it in good faith, and for a valuable con- sideration. § 2244. One who actu:illy nn.l in i;oi of unsound mind: or, 6. By the Superior Court, f Amendment ap- proved Feb. 1.^). 1883; Statutes la^.-^, 3. In effect February 15. 1883.1 §§ 2283-2289 TRUST. 488 § 2283. The Superior Court may remove any trustee who has violated or is unfit to execute the trust; or may accept the resignation of a trustee. [Amendment, approved April 6, 1880; Amendments 1880, 8. In effect April 5, 1880.] ARTICLE VI. SUCCESSION OR APPOINTMENT OF NEW TRUSTEES. § 2287. Vacant trusteeship filled by court. § 2288. Survivorship between co-trustees. § 2289. District Court as trustee. § 2287. The Superior Court may appoint a trustee whenever there is a vacancy, and the dec- laration of trust does not provide a practicable method of appointment. [Amendment, approved April 6, 1880; Amendments 1880, 8. In effect April 5, 1880.] § 2288. On the death, renunciation, or dis- charge of one of several cotrustees, the trust sur- vives to the others. This section is consistent with section 860; see also sec. 2268, ante. Survival of guardianship: See sec. 252, ante. § 2289. When a trust exists without any ap- pointed trustee, or where all the trustees renounce, die. or are discharged, the Superior Court of the county where the trust property, or some portion thereof, is situated must appoint another trustee, and direct the execution of the trust. The court may, in its discretion, appoint the original num- ber, or any less number of trustees. [Amend- ment, approved April 6. 1880; Amendments 1880, 8. In effect April 5, 1880.] 489 AGENCY. || 2296 TITLE IX. AGENCY. Chaptor 1. A^reucy in Geueral, §§ 220r)-23r>0. II. I'articular Agencies, §§ 23G2-23bU. CHAPTER I. AGENCY IN GENERAL. Article I. Definition of Agency. §§ 2295-2300. II. Authority of Agents, §§ 2304-2326. III. Mutual Obligations of Principals and Third Per- sons, §§ 2330-2339. IV. Obligations of Agents to Third Persons, §§ 2342- 2345. V. Delegation of Agency, §§ 2349-2351. VI. Termination of Agency, §§ 2355-2353. ARTICLE I. DEFINITION OF AGENCY. § 2295. Agency, what. i 2296. Who may appoint, and who may be an agent. § 2297. Agents, general or special. § 2298. Agency, actual or ostensible. § 2299. Actual agency. § 2300. Ostensible agency. § 2295. An agent is one wlio represents an- otlier, called the principal, in denliiiirs with third persons. Such representation is called agency. Master and servant: See sees. 2009 et seq. Factors: See sees. 2020 et seq. Agents: See sees. 2019-2022. § 2296. Any person having capacity to con- tract may appoint nn agent, and any p<»rson may be an agent. §§ 2297-2300 AGENCY. 490 § 2297. An agent for a particular act or trans- action is called a special agent. All others are general agents. § 2298. An agency is either actual or osten- sible. Actual agent's authority: Sees. 2315, 2316, 2318, 2319. Ostensible agent's authority: Sees. 2315, 2317- 2319, 2334. § 2299. An agency is actual when the agent is really employed by the principal. § 2300. An agency is ostensible when the prin- cipal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. See sec. 2317. ARTICLE II. AUTHORITY OF AGENTS. § 2304. What authority may be conferred. § 2305. Agent may perform acts required of principal by Code. § 2306. Agent cannot have authority to defraud principal. ? 2307. Creation of agency. § 2308. Consideration unnecessary. § 2309. Form of authority. § 2310. Ratification of agent's act. § 2311. Ratification of part of a transaction. § 2312. When ratification void. § 2313. Ratification not to work injury to third persons. 5 2314. Rescission of ratification. § 2315. Measure of agent's authority. $ 2316. Actual authority, what. § 2317. Ostensible authority, what. § 2318. Agent's authority as to persons having notice of restrictions upon it. § 2319. Agent's necessary authority. § 2320. Agent's power to disobey instructions. § 2321. Authority to be construed by its specific rather than by its general terms. 491 AGENCY. {{ 2304-23«| S 2322. Exceptions to general authority. i 2323. What included in authority to sell personal prop- erty. § 2324. What Included in authority to sell real properly. § 2325, Authority of general agent to receive price of prop. erty. § 232G. Authority ol special agent to receive price. § 2304. An agent may be authorized to do any acts which his principal might do, except those to which the hitter is bound to give his personal attention. Delegation of authority bv agent: Sees. li,"{4'j- 2351. § 2305. Every act which, according to thi.s Code, maj' be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly ai)- pear.s. § 2306. An agent can never have authority, either actual or ostensible, to do an act which is. and is known or suspected by the person with whom he deals to be, a fraud upon the principal. § 2307. An agency may be created, and an au- thority may be conferred, by a precedent author- ization or a subsequent ratification. § 2308. A consideration is not necessary to malvc an authority, whether precedent or subse- quent, binding upon the principal. § 2309. An oral authorization is sutTuicnt for any purpose, except that an authority to enfer into a contract required by law to be in writing can only be given by an instrument in writing. Statute of fraud: Sec. 1624, ante. Power of attorney to execute mortgage: See sec. 20.^•?, post. §§ 2310-2317 AGENCY. 492 § 2310. A ratification can be made only in the manner that would have been necessary to con- fer an original authority for the act ratified, or where an oral authorization would suffice, by ac- cepting or retaining the benefit of the act, with notice thereof. A ratification is not binding, and may be re- scinded, if made without full liuowledge of the facts: See sec. 2314, post. Ratification of part: See sec. 2311. § 2311. Ratification of part of an indivisible transaction is a ratification of the whole. See sec. 2323, post. § 2312. A ratification is not valid unless, at the time of ratifying the act done, the principal has power to confer authority for such an act. § 2313. No unauthorized act can be made valid, retroactively, to the prejudice of third per- sons, without their consent. § 2314. A ratification may be rescinded when made without such consent as is required in a con- tract, or with an imperfect knowledge of the ma- terial facts of the transaction ratified, but not otherwise. § 2315. An agent has such authority as the principal, actually or ostensibly, confers upon him. See infra, 2319. Actual agent defined: Sec. 2299. § 2316. Actual authority is such as a principal intentionally confers upon the agent, or inten- tionally, or by want of ordinary care, allows the agent to believe himself to possess. § 2317. Ostensible authority is such as a prin- cipal, intentionally or by want of ordinary care, 49:i AGENCY. gg 23W-iJ2J causes or allows a tliinl persou lo believe ihe ageul lo possess. Ostensible ageut detined: Sec. 2:i00. Kstoppel.— This is a statement of tbe fainibar priucipie that the agent's authority extends as far as he has been held out to the world as pusseshluK the power which he uses. The whole principle (»f implied agency is really an application of the doc trine of estoppel in pais. Estoppel from a subsequent ratification: Sec sees. 2307, 2310, 2312-2314, ante. § 2318. Every agent has actually such author- ity as is defined by this title, unless specially de- prived thereof by his principal, and has even then such authority ostensibly, except as to persons who have actual or constructive notice of the re- striction upon his authority. § 2319. An agent has authority: 1. To do every thing necessary or proper ai'd usual, in the ordinary course of business, for ef- fecting the purpose of his agency; and. 2. To make a representation respecting any matter of fact, not including the terms of his au- thority, but upon which his right to use his au- thority depends, and the truth of which cannot be determined by the use of reasonable diligence on the part of the person to whom the representation is made. § 2320. An agent has power to disobey in- structions in dealing with the subject of the agency, in cases where it is clearly for the inter- est of his principal that he shouM do so. anle therefor, if. after j!^ 2345-2351 AGENCY. 498 notice from the owner, lie delivers it to liis prin- cipal. Compare with sections on deposit, sees. 1822, 1825, 1826, ante. § 2345. The provisions of this article are sub- ject to the provisions of Part I, Division First, of this Code. [§§ 25-42.] ARTICLE y. DELEGATION OF AGENCY. § 2249. Agent's delegation of his powers. § 2350. Agent's unauthorized employment of sub-agent. § 2351. Sub-agent rightfully appointed, represents prin- cipal. § 2349. An agent, unless specially forbidden by his principal to do so, can delegate his powers to another person in any of the following cases, and in no others: 1. When the act to be done is purely mechan- ical; 2. When it is such as the agent cannot himself, and the subagent can lawfully perform; 3. When it is the usage of the place to delegate such powers; or. 4. When such delegation is specially authorized by the principal. § 2350. If an agent employs a subagent with- out authority, the former is a principal and the latter his agent, and the principal of the former has no connection with the latter. See sec. 2022, ante. § 2351. A subagent. lawfully appointed, repre- sents the principal in like manner with the orig- inal agent: and the original agent is not responsi- ble to third persons for the acts of the subagent. 499 AQEN'CY. AKT1CLI-: Vl. TERMINATION OF AGENCY. 5 2355. Termination of Agency. § 2356. Same. § 2355. An ageucy is terminated, as to every PL-rson baviuu: notice thereof, by: 1. I'he expiration of its term; 2. Tlie extinction of its subject; 0. Tlie death of the agent; 4. His renunciation of the agency, or, 5. The incapacity of tlie agent to act as such. As to dutj' of gratuitous employee: See sec. 1975, ante. § 2356, Unless the power of an agent is cou- pled with an interest in the subject of the agency, it is terminated, as to every per.son having notice thereof, by: 1. Its revocation by the principal: 2. His death: or, 3. His incapacity to contract. €HAPTEIl II. PARTICULAR AGENCIES. Article I. Auctioneers, §§ 2362-2363. II. Factors, §§ 2367-2369. III. Sliipmasters and Pilots. §§ 2373-2385. IV. Ships' Managers, §§ 23S8-23S9. ARTICLE I. AUCTIONEERS. § 2362. Auctioneer's authority from the seller. § 2363. Auctioneer's authority from the bidder. § 2362. An auctioneer, in the absence of spec- ial authorization or usage to the contrary, hns au- thority from the seller only as follows: §§ 2363-2368 AGENCY. 600 1. To sell by public auction to the highest bid- der; 2. To sell for cash only, except such articles as are usually sold on credit at auction; 3. To warrant, in like manner with other agents to sell according to section 2323; 4. To prescribe reasonable rules and terms of sale; 5. To deliver the thing sold, upon payment of the price; 6. To collect the price; and, 7. To do whatever else is necessary, or proper and usual, in the ordinary course of business, for effecting these purposes. See Polit. Code, sees. 3284 et seq. § 2363. An auctioneer has authority from a bidder at the auction, as well as from the seller, to bind both by a memorandum of the contract, as prescribed in the Title on Sale. Concerning auctioneers: Polit. Code, sees. 3284- 3324. See sec. 1798, ante; and see generally the chap- ter on "Sale by Auction," sees. 1792-1798, ante. ARTICLE II. FACTORS. § 2367. Factor, what. I 2368. Actual authority of factor. § 2369. Ostensible authority. § 2367. A factor is an agent, as defined by sec- tion 2026. § 2368. In addition to the authority of agents in general, a factor has actual authority from his principal, unless specially restricted; 1. To insure property consigned to him unin sured; 601 AGENCY. litiJ(-a74 2. To sell, on credit, anyihiug iin rusted to him for sale, except such thiui,'.s us it is coutrary to usage to sell on credit; but not to pledge, mort- gage, or barter the same; and. 3. To delegate his aulliority to his partner or servant, but not to any person in an indepen«lent employment. See sec. 2991, post. § 2369. A factor has ostensible amhority to deal with the property of his principal as his own. in transactions with persons not having notice of the actual ownership. AKTICLE III. SHIPMASTERS AND PILOTS. § 2373. Authority of shipmaster on behalf of shipowner. § 2374. Authority to borrow. 5 2375. Authority on behalf of owners of cargo. § 2376. Power to make contracts. § 2377. Power to hypothecate. § 2378. Master's power to sell ship. § 2379. Master's power to sell cargo. § 2380. Authority to ransom ship. § 2.i81. Abandonment terminates master's power. § 2382. Personal liability for contracts concerning the ship. § 2383. Liability for acts of persons employed upon the ship. § 2384. Responsibility for negligence of pilot. § 2385. Obligations of shipowner to owner of cargo. § 2373. Thp master of a ship is a general agent for its owner in all matters concerning the same. Note.— This article is chiefly confined to defining the authortiy of ship-masters. His dntirs will be found in sees. 2034-2044. ante. § 2374. The master of a ship has autliority to borrow money on the credit of its owner, if It l.s necessary to enable him to comi)lete the v«^vnge. §§ 2375-2378 AGENCY. 603 and if neither the owner nor his proper agent for such matters can be consulted without injurious delay. § 2375. The master of a ship, during a voyage, is a general agent for each of the owners of the cargo, and has authority to do whatever they might do for the preservation of their respective interests, but he cannot sell or hypothecate the cargo, except in the cases mentioned in this arti- cle. [Amendment approved March 30, 1874; Amendments 1873-4, 251. In effect July 1, 1874.] § 2376. The master of a ship may procure all its necessary repairs and supplies, may engage cargo and passengers for carriage, and, in a for- eign port, may enter into a charter party; and his contracts for these purposes bind the owner to the full amount of the value of the ship and freight- age. § 2377. The master of a ship may hypothecate the ship, freightage, and cargo, and sell part of the cargo, in the cases prescribed by the chapters on bottomry and respondentia, and in no others, ex- cept that the master may also sell the cargo or any part of it, short of the port of destination, if found to be of such perishable nature, or in such damaged condition that, if left on board or reshipped. it would be entirely lost, or would seri- ously endanger the interests of its owners. [Amendment, approved March 30, 1874: Amend- ments 1873-4, 2.52. In effect July 1. 1874.] See sees. 2320, ante, and 3017 et seq. § 2378. When a ship, whether foreign or do- mestic, is seriously injured, or the voyage is other- wise broken up, beyond the possibility of pursu- ing it, the master, in case of necessity, may sell the ship without instructions from the owners, unless bv the earliest use of ordinary means of 503 AGENCY. |g 237»-2J»4 comuiiinicalioii he can iuronii the owners, uuil await their iustructious. § 2379. The muster of a .sliip may sell the tar- go, if the voyage is broUeu up beyond the lu.ssi- bllity of pursuing it, and no oMier ship can be ob- tained to carry it to its destination, and the sale is otiierwise absolutely necessary. Compare post, sec. 2707. § 2380. The master of a ship, in case of its capture, may engage to pay a ransom for it. in money or in part of the cargo, and his engagement will bind the ship, freightage, and cargo. § 2381. The power of the master of a ship to bind its owner, or the owners of the cargo, ceases upon the abandonment of the ship and freightage to insurers. § 2382. Unless otherwise expressly agreed, or unless the contracting parties give exclusive credit to the owner, the master of a ship is personally lia- ble upon his contracts relative thereto even when the owner is also liable. Personal liability of agent: See ante, sec. 2343. § 2383. The master of a ship is liable to third persons for the acts or negligence of persons em- ployed in its navigation, whether appointed by him or not, to the same extent as the owner of the ship. § 2384. The owner or master of a ship is not responsible for the negligence of a pilot whom he is bound by law to employ; but if he is allowed an option between pilots, some of whom ar»» compe- tent, or is required only to pay comp«Misation to a pilot, whether he employs him or not. he is so re- sponsible to third persons. See sec. 2338, ante. §§ 2385-2389 PARTNERSHIP. 604 § 2385. The owner of a ship is bound to pay to the owner of her cargo the market value at the time of arrival of the ship at the port of her des- tination, of that portion of her cargo which has been sold to enable the master to pay the neces- sary repairs and supplies of the ship. [New sec- tion, approved March 30, 1874; Amendments 1873- 4, 252. In effect July 1, 1874.] ARTICLE IV. SHIPS' MANAGERS. i 2388. What powers manager has. § 2389. What powers he has not. § 2388. A ship's manager has power to make contracts requisite for the performance of his du- ties as such; to enter into charter-parties, or make contracts for carriage; and to settle for freightage and adjust averages. See sees. 2070-2072. § 2389. Without special authority, a ship's manager cannot borrow money or give up the lien for freightage, or purchase a cargo, or bind the owners of the ship to an insurance. TITLE X. PARTNERSHIP. Chapter I. Partnership in General. §§ 2395-2418. II. Genei-al Tartuersbip, §§ 2424-2471. III. Special Partnership. §§ 2477-2510. IV. Mining Partnership. §§ 2511-2.520. 605 PARTNERSHIP. CHAPTER I. PARTNERSHIP IN GENERAL. Article I. What Constitutes a Partnership, {j 23%-2397. II. Partnership Property, §§ 2401-2406. III. Mutual Obligations of Partners, §§ 2410-241 IV. Renunciation of Partnership. 55 2417-2418. ARTICLE I. WHAT CONSTITUTES A PARTNERSHIP. 8 2395. Partnership, what. 5 2396. Shipowners. § 2397. Formation of partnership. § 2395. Partnership is the association of two or more persons, for the purpose of carrying on business together, and dividing its profits between them. See section 2445, where the above question as to division of profits evidencing partnership is set- tled. Dividing profits implies division of losses: Sec. 2404, post. § 2396. Part owners of a ship do not, by sim- ply using it in a joint enterprise, become partners as to the ship. § 2397. A partnership can be formed only by the consent of all the parties thereto, and there- fore, no new partner can be admitte 1... partnership property. ARTICLE III. ^ MUTUAL OBLIGATION OF PAIiTNERF. § 2410. Partners trustees for each other. § 24n. Good faith to be observed between them. § 2412. Mutual liability of partners to account. § 2413. No compensation for services to firm. § 2410. The relatious of partners are coufldeu- tial. They are trustees for eacli other within the meaning' of chapter I of the Title on Trusts, an«' rep- resented as a partner, general or special. Is liable, as such to third persons to wliom such represen- tation is communicated, and who. on the faith thereof, give credit to tlie pnrtmTsliip. §§ 2445-2451 PARTNERSHIP. 513 § 2445. No one is liable as a partner who is not suc2i in fact, except as provided in the last sec- tion. ARTICLE V. TERMINATION OF PARTNERSHIP. § 2449. Duration of partnership. § 2450. Total dissolution of partnership. § 2451. Partial dissolution. § 2452. Partner entitled to dissolution. § 2453. Notice of termination. § 2454. Notice by change of name. § 2449. If no term is prescribed by agreement for its duration, a general partnership continues until dissolved by a partner or by operation of law. Dissolution of special partnership: See sec. 2509, post. § 2450. A general partnership is dissolved as to all the partners: 1. By lapse of the time prescribed by agree- ment for its duration; 2. By the expressed will of any partner, if there is no such agreement; 3. By the death of a partner; 4. By the transfer to a person, not a partner, of the interest of any partner in the partnership property; 5. By war, or the prohibition of commercial in- tercourse between the country in which one part- ner resides and that in which another resides; or, 6. By a judgment of dissolution. Partner's power after dissolution of firm: See sees. 2458 et seq., post. § 2451. A general partnership may be dis- solved, as to himself only, by the expressed will of any partner, notwithstanding his agreement 013 PARTNERSHIP. gj 24&2-24W for its continuance, subject, however, to liuhiiHy to bis copartners for any damaKo caused to tUein tberebj', unless tbe circumstances are suelj as en- title bim to a judgment of dissolution. § 2452. A general partner is entitled to a Judg- ment of dissolution: 1. Wben be, or anotber partner, becomes le- gally incapable of contracting; 2. Wben anotber partner fails to perform bis duties under tbe agreement of partnership, or Is guilty of serious misconduct; or, 3. When tbe business of tlie partnership <'an be carried on only at a permanent loss. § 2453. Tbe liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of per- sons who have had dealings with and given credit to the partnership during its existence, until tliey have bad personal notice of tbe dissolution: an0T. post. §§ 2489-2493 PARTNERSHIP. 520 AKTICLE II. POWERS, RIGHTS, AND DUTIES OF THE PARTNERS. § 2489. Who to do business. § 2490. Special partners may advise. § 2491. May loan money. Insolvency. § 2492. General partners may sue and be sued. § 2493. Withdrawal of capital, § 2494. Interest and profits. § 2495. Result of withdrawing capital. § 2496. Preferential transfer void. § 2489. The general partners only have author- ity to transact the business of a special partner- ship. Stats. IS'ft). 124, sec. 10. § 2490. A special partner may at all times in- vestigate the partnership affairs, and advise his partners, or their agents, as to their management. § 2491. A special partner may lend money to the partnership, or advance money for it, and take from it security therefor, and as to such loans or advances has the same rights as any other cred- itor; but in case of the insolvency of the partner- ship, all other claims which he may have against it must be postponed until all other creditors are satisfied. § 2492. In all matters relating to a special partnership, its general partners may sue and bo sued alone, in the same manner as if there vrere no special partners. § 2493. No special partner, under any pre- tense, may withdraw any part of the capital in- vested by him in the partnership, during its con- tinuance. See sec. 2495, post. 621 PARTNERSHIP. jj ^, § 2494. A special partner may receive uucU lawlul interest and such proportion of profltH nn may be agreed upon, if not paid out of tlie capital invested in tlie partnersliip by IjIui. f)r !)y some other special partner, and is not bound to n»- funai)er printed in each county where the partnershii» has a place of business. Dissolution of general partnershiic See sees, 2450, ante, et seq. § 2510. The name of a special partner must not be used in the firm name of partnership, un- less it be accompanied with the word "limited." §§ 2511-2514 PARTNERSHIP. 524 CHAPTER IV. MINING PARTNERSHIPS. § 2511. When a mining partnership exists, § 2512, Express agreement not necessary to constitute. § 2513, Profits and losses, how shared, S 2514. Lien of partners. § 2515, Mine— Partnership property. § 2513. Partnership not dissolved by sale of interest. § 2517. Purchaser takes, subject to liens, unless, &c. § 2518. Takes with notice of lien, when. § 2519, Contract in writing, when binding, § 2520. Owners of majority of shares govern. § 2511. A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the mineral therefrom actually engage in working the same. § 2512. An express agreement to become part- ners or to share the profits and losses of mining is not necessary to the formation or existence of a mining partnership. The relation arises from the ownership of shares or interests in the mine and working the same for the purpose of extracting the minerals therefrom. § 2513. A member of a mining partnership shares in the profits and losses thereof in the pro- portion which the interest or share he owns in the mine bears to the whole partnership capital or whole number of shares. § 2514. Each member of a mining partnership has a lien on the partnership property for the debts due the creditors thereof, and for money advanced by him for its use. This lien exists not- withstanding there is an agreement among the partners that it must not. Corresponding sections as to general partners: 525 PARTNERSHIP. j. See sees. 2405, 2412, aute; see also sees. '^TAl. liTilS. post. § 2515. The miniui; ground owncl niul worktM by partners in mining, whetlier piirchascl win, partnersliip fund.s or not, is partnersliii* propi-rty. § 2516. One of the partners in a mining part- nership may convey his interest In the mine and business without dissolving the partnersliip. The purchaser, from the date of his purchase, becomes a member of the partnership. Termination of partnership generally: See soos. 2449 et seq. § 2517. A purchaser of an interest in the min- ing ground of a mining partnership takes it sub- ject to the liens existing in favor of the partners for debts due all creditors thereof, or advances made for the benefit of the partnership, unless he purchased in good faith, for a valuable consider- ation, without notice of such lien. § 2518. A purchaser of the interest ol a part- ner in a mine when the partnersliip is engaged in working it, takes with notice of all liens resulting from the relation of the partners to each other and to the creditors of the partnership. § 2519. No member of a mining partnership or other agent or manager thereof can, by a contract in writing, bind the partnership, except by ex- press authority derived from the members there- of. § 2520. The decision of the members owning a majority of the shares or interests in a mining partnership binds it in the conduct of i*s business. Majority of members in general p.irtnerships: Sec. 2428.' ante. 2527 INSURANCE. 523 Chapter I. II. III. IV. TITLE XL INSURANCE. Insurance in General, §§ 2527-2649. Marine Insurance, §§ 2G55-2746. Fire Insurance, §§ 2752-2756. Life and Healtli Insurance, 2766. §§ 2762- CHAPTER I. INSURANCE IN GENERAL. Article I. Definition of Insurance, § 2527. II. What may be Insured, §§ 2531-2534. III. Parties, §§ 253S-2542. IV. Insurable Interest, §§ 2546-2558. V. Concealment and Representation, VI. The Policy, §§ 2586-2599. VII. Warranties, §§ 2603-2612. VIII. Premiums, §§ 2616-2622. IX. Loss, '§§ 2626-2629. X. Notice of Loss, §§ 2633-2637. XI. Double Insurance, §§ 2641-2642. XII. Reinsurance, §§ 2646-2649. 2561-2583. ARTICLE I. DEFINITION OF INSURANCE. 2527 Insurance, what. § 2527. Insurance is a contract whereby one undertalves to indemnify another against loss, damage, or liability, arising from an unlinown or contingent event. Insurance corporations: See sees. 414, et seq. Office and duties of insurance commissioners: 527 INSURANCE. J] 2i31-2U4 Polit. Code, sees. 594-G31. Destnutiou of IukuhhI property: Tenal Code, seo. nts; \r^,.n i'..t..,| Code, sees, 447-451. ARTICLE II. WHAT MAY BE INSURED. S 2531. What events may be insured against. 5 2532. Insurance of lottery or lottery prize unauthorized. § 2o33. Usual kinds of insurance. § 2534. All subject to this chapter. § 2531. Any contingent or unknown event, whether past or future, which may damnify a per- son having an insurable interest, or create a liabil- ity against him, may be insured against, subject to the provisions of this chapter. Insurable interest: See sees. 254G, post, et seq. § 2532. The preceding section does not author- ize an insurance for or against the drawing of any lottery, or for or against any chance or ticket in a lottery drawing a prize. Lotteries: Penal Code, sees. 324, 320. § 2533. The most usual kinds of insurance are: 1. Marine insurance; 2. Fire insurance; 3. Life insurance; 4. Health insurance; and, 5. Accident insurance. Marine insurance: See post. sees. 20.').'). et seq. Fire insurance: See post sees. 2752, et seq. Life and health insurance: See post, sees. 2702, et seq. § 2534. All kinds of insurance are subject to the provisions of this chapter. §§ 2538-2542 INSURANCE. 628 ARTICLE III. PARTIES TO THE CONTRACT. § 2538. Designation of parties. § 2539. Who may insure. § 2540. Who may be insured. § 2541. Assignment to mortgagee of thing insured. § 2542. New contract between insurer and assignee. § 2538. The person who undertakes to indem- nify another by a contract of insurance is called the insurer, and the person indemnified is called the insured. § 2539. Any one capable of mailing a contract may be an insurer, subject to the restrictions im- posed by special statutes upon foreign corpora- tions, nonresidents, and others. § 2540. Any one except a public enemy may be insured. § 2541. Where a mortgagor of property effects insurance in his own name, providing that the loss shall be payable to the mortgagee, or assigns a pol- icy of insurance to the mortgagee, the insurance is deemed to be upon the interest of the mortgag- or, who does not cease to be a party to the origi- nal contract, and any act of his which would other- wise avoid the insurance will have the same ef- fect, although the property is in the hands of the mortgagee. § 2542. If an insurer assents to the transfer of an insurance from a mortgagor to a mortgagee, and, at the time of his assent, imposes further ob- ligations on the assignee, making a new contract with him. the acts of the mortgagor cannot af- fect his rights. 5^a INSURANCE. |; 2M«.aa ARTICLE IV. INSURABLE INTEREST. § 2546. Insurable Interest, what. § 2547. In what may consist. 5 2548. Interest of carrier or depositary. § 2549. Mere expectancies. § 2550. Measure of interest in property. § 2551. Insurance without interest, illegal. § 2552. When interest must exist. § 2553. Effect of transfer. S 2554. Transfer after loss. § 2555. Exception in the case of several subjects in oae policy. § 2556. In case of the death of the insurer. § 2557. In the case of transfer between cotenanta, S 2558. Policy, when void. § 2546. Every interest iu property, or any re- lation thereto, or liability in respect thereof, of sucli a nature that a contemplated peril mipht directly damnify the insured, is an insurable in- terest. Partner: See post, sec. 2590. Bailees, etc.: See sec. 2548, infra. Future products insurable: See sec. 25-19. infra. Life insurance: See post, sees. 27('>2, 27(>.*i. Statinjr insurer's interests in policy: See post, sees. 2508, 2587. § 2547. An Insurable interest in property may consist in: 1. An existinc: interest: 2. An inchoate interest founded on an existing interest; or, X An expectancy, coupled with an existing In- terest in that out of which the expectancy arises. § 2548. A carrier or depositary of any kind has an insurable interest in a thine: held by him as Ruch. to the extent of its value. Civ. Code.-45. §§ 2549-2554 INSURANCE. 530 § 2549. A mere contingent or expectant inter- est in anything, not founded on an actual riglit to the thing, nor upon any valid contract for it, is not insurable. § 2550. The measure of an insurable interest in property is the extent to which the insured might be damnified by loss or injury thereof. See also next section. Measure of indemnity in marine insurance: See post, sec. 2736. § 2551. The sole object of insurance is the in- demnity of the insured, and if he has no insurable interest the contract is void. § 2552. An interest insured must exist when the insurance talies effect, and when the loss oc- curs, but need not exist in the meantime. § 2553. Except in the cases specified in the next four sections, and in the cases of life, acci- dent, and health insurance, a change of interest in any part of a thing insured, unaccompanied by a corresponding change of interest in the insur- ance, suspends the insurance to an equivalent ex- tent.' until the interest in the thing and the inter- est in the insurance are vested in the same per- son. Transfer by partner: See sec. 2557, infra. Transfer by operation of law: Sec. 2556, infra. Transfer of thing insured does not transfer pol- icy: See post, sec. 2593. Transfer of life insurance policy: See sec. 2764. post. ! § 2554. A change of interest in a thing insured, after the occurrence of an injury which results in a loss, does not affect the right of the insured to indemnity for the loss. 531 INSURANCE. , § 2555. A change of iiitorost in one or moro of several distinct things, separately insureil by one policy, does not avoid the insurance as to the others. § 2556. A change of interest, l»y will f>r suc- cession, on the death of the insuretl, docs not avoid an insurance; and his interest in the insur- ance passes to the person taking his interest In the thing insured. § 2557. A transfer of interest l>y one of sev- eral partners, joint owners, or owners in com- mon, who are jointly insured, to the others. do«'S not avoid an insurance, even though it has been agreed that the insurance shall cease upon an alienation of the thing insured. Insurance by partner or cotenant: See post, sec. 2590. § 2558. Every stipulation in a poliey of insur- ance for the payment of loss, whether the person Insured has or has not any interest in the j)rop- erty insured, or that the policy shall be received as proof of such interest, and every policy exe- cuted by way of gaming or wagering, is voiS3-2685. § 2683. An implied warranty of seaworthi- ness is complied with if the ship be seaworthy at the time of the commencement of the risk, except in the following cases: §§ 2684-2687 INSURANCE, 552 1. Allien the insurance is made for a specified length of time, the implied warranty is not com- plied with unless the ship be seaworthy at the commencement of every voyage she may under- talie during that time; and, 2. When the insurance is upon the cargo, which, by the terms of the policy, or the descrip- tion of the voyage, or the established custom of the trade, is to be transshipped at an intermediate port, the implied warranty is not complied with, unless each vessel upon which the cargo is ship- ped or transshipped be seaworthy at the com- mencement of its particular voyage. [Amend- ment, approved March 30, 1874; Amendments 1873-4, p. 257. In effect July 1, 1874.] § 2684. A warranty of seaworthiness extends not only to the condition of the structure of the ship itself, but requires that it be properly laden, and provided with a competent master, a suffi- cient number of competent officers and seamen, and the requisite appurtenances and equipments, such as ballast, cables, and anchors, cordage and sails, food, water, fuel, and lights, and other nec- essary or proper stores and implements for the voyage. § 2685. Where different portions of the voyage contemplated by a policy differ in respect to the things requisite to make the ship seaworthy there- for, a warranty of seaworthiness is complied with if, at the commencement of each portion, the ship is seaworthy with reference to that portion. § 2686. When a ship becomes unseaworthy during the voyage to which an insurance relates, an unreasonable delay in repairing the defect ex- onerates the insurer from liability from any loss arising therefrom. § 2687. A ship which is seaworthy for the pur- 653 INSURANCE. pose of au iiisurauee upou the ship may ueverlhf less, by reason of beiug uulitted to receive ibe car;-o, be uuseawortliy for the piiri)08e of lUHur- auce upou the cargo. § 2688. Where the uatiouality or neutrality of a ship or carj,'o is expressly warranted, it \h im- plied that the ship will carry the requisite docu- uiouis to show such uatiouality or neutrality, and that it will not carry auy documents which ca.st reasonable suspicion thereon. ARTICLE VI. THE VOYAGE AND DEVIATION. 5 2692. Voyage insured, how determined. § 2093. Course of sailing, how determined. § 2G94. Deviation, what. § 2C9.J. When proper. § 269G. When improper. § 2697. Deviation exonerates the insurer. § 2692. When the voyage contemplated by a policy is described by the places of beginning and ending, the voyage insured is one which conforms to the course of sailing fixed by mercantile us- ige between those places. § 2693. If the course of sailing is not fixed by aiercantile usage, the voyage insured by a policy s the way between the places specified which, to [i master of ordinary skill and discretion, would \ieem the most natural, direct, and advantageous. I § 2694. Deviation is a departure from the ;?ourse of the voyage insured, mentioned in the tast two sections, or an unreasonable delay In pur- iuing the voyage, or the commencement of an en- |lrely different voyage. } § 2695. A deviation is proper: 1 Civ. Code.— 47. §§ 2696-2701 INSURANCE. 554 1. ^A'beu caused by circumstances over which neither the master nor the o^Yner of the ship has any control; 2. When necessary to comply with a warranty, or to avoid a peril, whether insured against or not; 3. When made in good faith, and upon reason- able grounds of belief in its necessity to avoid a peril; or, 4. When made in good faith, for the purpose of saving human life, or relieving another vessel in distress. § 2696. Every deviation not specified in the last section is improper. § 2697. An insurer is not liable for any loss happening to a thing insured subsequently to an improper deviation. ARTICLE VII. * LOSS. § 2701. Total and partial loss. § 2702. Partial loss. § 2703. Actual and constructive total loss. § 2704. Actual total loss, what. § 2705. Constructive total loss. § 2706. Presumed actual loss. § 2707. Insurance on cargo, &c., when voyage is broken up. § 2708. Cost of reshipment, &c. § 2709. When insured is entitled to payment. § 2710. Abandonment of goods on insurance of profits. § 2711. Average loss. § 2712. Insurance against total loss. § 2701. A loss may be either total or partial. Total loss either actual or constructive: See sec. 2703. Actual total loss defined: See 2704. Constructive total loss defined: See sec. 2705. B55 INSURANCE. |S ZlaZZlVJ § 2702. Every loss ^vllk•ll is not total Is jiar- tral. Liability on partial loss: Sec. liT.'iT. One-third new for old: Sec. 274G. § 2703. A total loss may be eithn ;i( mal or constructive. Actual total loss defined: Sec. 2704. Actual loss, when presumed: Sec. 27o<;. Constructive loss defined: Sec. 2705. § 2704. An actual total loss is caused by: 1. A total destruction of the thing insured; 2. The loss of the thing by sinlving, or by being broken up; 3. Any damage to the thing which renders it valueless to the owner for the purposes for which he held it; or, 4. Any other event which entirely deprives the owner of the possession, at the port of destination, of the thing insured. § 2705. A constructive total loss is one which gives to a person insured a right to abandon, un- der section 2717. Abandonment for constructive total loss: Sees. 271G et seq. I § 2706. An actual loss may be presumed from Ithe continued absence of a ship witliout being heard of; and the length of time which is sufli- leient to raise this presumption depends on the cir- cumstances of the case. I § 2707. When a ship is prevented, at an Inter- [mediate port, from completing the voyage, by the loerils insured against, the master must mal. § 2717. A person insured by a contract of ma- rine insurance may abandon the thinir insurea!idoninent. I whether express or implied, is conclusive upon tlie I parties, and admits the loss and the sulliciency of ! the abandonment. ! § 2729. An abandonment once uvmW and ac- §§ 2730-2736 INSURANCE. 660 cepted is irrevocable, unless the ground upon which it Avas made proves to be unfounded. § 2730. On an accepted abandonment of a ship, freightage earned previous to the loss be- longs to the insurer thereof; but freightage subse- quently earned belongs to the insurer of the ship. Abandonment of freightage: See sec. 2017, subd. 4. § 2731. If an insurer refuses to accept a valid abandonment, he is liable as upon an actual total loss, deducting from the amount any proceeds of the thing insured which may have come to the hands of the insured. Acceptance not presumed from silence: Sec. 2727. § 2732, If a person insured omits to aban- don, he may nevertheless recover his actual loss. ARTICLE IX. MEASURE OF INDEMNITY. § 2736. Valuation, when conclusive. § 2737. Partial loss. § 2738. Profits. § 2739. Valuation apportioned. § 2740, Valuation applied to profits. § 2741. Estimating loss under an open policy. § 2742. Arrival of thing damaged. § 2743. Labor and expenses. § 2744. General average. § 2745. Contribution. § 2746. One third new for old. § 2736. A valuation in a policy of marine in- surance is conclusive between the parties thereto in the adjustment of either a partial or total loss, 661 INSURANCE. jg mi-rHO if the insured has some interest at risk, anr), stntiuii the measure of indemnity in case of fire insurance. § 2738. Where profits are separately insun^d In a contract of marine insurance, the insured is entitled to recover in case of loss, a proportion of such profits equivalent to the proportion which the value of the property lost bears to the value I of the whole. I See infra, sec. 2740. ; § 2739. In case of a valued policy of marine i Insurance on freightage or cargo, if a part only of ; the subject is exposed to risk, the valuation ap- ' plies only in proportion to such part. i § 2740. When profits are valued an<1 insured ' by a contract of mnrine insurance, a loss of tlioni f Is conclusively presumed from a loss of the prop- §§ 2741-2743 INSURANCE. B62 erty out of which they were expected to arise, and the valuation fixes their amount. Harmonizes with sec. 2738. § 2741. In estimating a loss under an open policy of marine insurance, the following rules are to be observed: 1. The value of a ship is its value at the begin- ning of the risk, including all articles or charges which add to its permanent value, or which are necessary to prepare it for the voyage insured; 2. The value of cargo is its actual cost to the insured, when laden on board, or where that cost cannot be ascertained, its marl^et value at the time and place of lading, adding the charges in- curred in purchasing and placing it on board, but without reference to any losses incurred in rais- ing money for its purchase, or to any drawback on its exportation, or to the fluctuations of the market at the port of destination, or to expenses incurred on the way or on arrival; 3. The value of freightage is the gross freight- age, exclusive of primage, without reference to the cost of earning it; and, 4. The cost of insurance is in each case to be added to the value thus estimated. Partial loss of ship: Sec. 2746. § 2742. If cargo insured against partial loss ar- rives at the port of destination in a damaged con- dition, the loss of the insured is deemed to be the same proportion of the value which the market price at that port, of the thing so damaged, bears to the market price it would have brought if sound. § 2743. A marine insurer is liable for all the expense attendant upon a loss which forces the ship into port to be repaired; and where it is 563 INSURANCE. |j THi-TJU agreed that the insured may labor for the recov- ery of the property, the iusurer Is liahlf for tin* expense incurred thereby, such expense, in i-IiIht case, being in addition to a total loss, if tliat after- wards occurs. § 2744. A marine insurer is liable for a Iokh falling upon the insured, through a contribution in respect to the thing insured, recjuired to be made by him towards a general average loss callwl for by a peril insured against. General average generally: See sees, liir.2 tt seq. § 2745. Where a person insured by a contract of marine insurance has a demand against others for contribution, he may claim the whole loss from the insurer, subrogating him to his own right to contribution. But no such claim can be made up- on the insurer after the separation of the intorest.s liable to contribution, nor when the insured, hav- ing tlie riglit and opportunity to enforce contribu- tion from others, has neglected or waived the ex- ercise of that right. [Amendment approv«'d March 30. 1874; Amendments 1873-4, 230. In effect July 1, 1874.] Subrogation of insurer: See sec. 2724. § 2746. In the case of a partial loss of a ship or its equipments, the old materials are to be ap- plied towards payment for the new, and whether the ship is new or old, a marine 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 depre- ciation of only two and one-half per cent for each month that it has been fastened to the ship. Sale of wrecked or damaged vessels: See Pollt. Code, sec. 2507. gg 275li-27oo INSURANCE. 564 CHAPTER III. FIRE INSURANCE. § 2752. False representations, (Repealed.) § 2753. Alteration increasing risk. § 2754. Alteration not increasing risk. § 2755. Acts of the insured. § 2756. Measure of indemnity. § 2752. Repealed. [March 30, 1874; Amend- ments 1873-4, 259. In effect July 1, 1874.] § 2753. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, made without the consent of the in- surer, by means within the control of the insured, and increasing the risk, entitles an insurer to re- scind a contract of fire insurance. § 2754. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance. Alteration not increasing risk.— The phraseology of this section is somewhat ambiguous. "Lim- ited" cannot mean "stipulated," in the sense that if the policy stipulates for the use of the premises in a particular way and against any other use, a violation of this stipulation will not affect the con- tract unless the violation increases the risk. The extent of the alteration in such case is not mate- rial, as it is shown in the note to the preceding section. Probably "limited" is to be taken as a term of description merely. \ § 2755. A contract of fire insurance is not af- I fected by any act of the insured subsequent to the | execution of the policy, which does not violate its provisions, even though it increases the risk and ! is the cause of the loss. ! 5G6 INSURANCE. || riU-Zm § 2756. If there is no valuiilioii iii the i>oll(;y, the measure of iudemnity iu uii iusuranee a.;alui*i tire is the exi)euse, at the time that tin* ion.* h pay. able, of replaciu^^ the tliiiij,' lost or iiijure ihim for the payment of money, or respecting prop- i^rty or services, of which death or illness mipht jlelay or prevent the performance: and. 4. Of any person upon whose life any estate or linterest vested in him depends. j Civ. Code. -48. I §§ 2734-2772 INDEMNITY. 566 Insurable interest generally: See sees. 2546 et seq. § 2764. A policy of insurance upon life or health may pass by transfer, will, or succession to any person, whether he has an insurable interest or not, and such person may recover upon it what- ever the insured might have recovered. Compare with section 2553, ante. § 2765. Notice to an insurer of a transfer or bequest thereof is not necessary to preserve the validity of a policy of insurance upon life or health, unless thereby expressly required. § 2766. Unless the interest of a person insured is susceptible of exact pecuniary measurement, the measure of indemnity under a policy of insur- ance upon life or health is the sum fixed in the pol- icy. Act relating to life, health, accident and annuity or endowment insurance: See post, Appendix, p. 770. TITLE XII. INDEMNITY. § 2772, Indemnity, what. § 2773. Indemnity for a future wrongful act void. § 2774. Indemnity for a past wrongful act valid. § 2775. Indemnity extends to acts of agents. § 2776. Indemnity to several. § 2777. Person indemnifying liable jointly or severally witl persons indemnified. § 2778. Rules for interpreting agreement of indemnity. § 2779. "When person indemnifying is a surety. § 2780. Bail, what. § 2781. How regulated. § 2772. Indemnity is a contract by which om engages to save another from a legal consequence of the conduct of one of the parties, or of som( other person. 667 INDEMNITY. |i rm-Zm § 2773. An ajcreemeut to indeinulfy a imtwju agaiust an act thereafter to be done is void. If " .• act be known by such person, at the time of . It, to be unlawful. [Amendment, approved M;;; ; .. 30, 1874; Amendments 1873-4, 259. In efTett July 1, 1874.] § 2774. An aj^reement to indemnify a pcis..n against an act already done is valid, even though the act was known to be wronj;ful, unle.ss it wan a felony. § 2775. An agreement to indemnify against the acts of a certain person applies not only to his acts and their consequences, but also to those of his agents. § 2776. An agreement to indemnify several per- sons applies to each, unless a contrary intention appears. § 2777. One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately to ev- ery person injured by such act. ' § 2778. In the interpretation of a contract of I Indemnity, the following rules are to be applied, unless a contrary intention appears. I 1. Upon an indemnity against liability, express- I ly, or in other equivalent terms, the person indem- nified is entitled to recover upon becoming liable; 2. Upon an indemnity against claims, or 73 GUARANTY. |, aJWMIL § 2809. The obligation (,f u Kuaranior niUKt l>e neither larger iu amount uor in other respoctM more burdensome than that of the principal; ami if in its terms it exceeds it, it is reducible In pro- portion to the principal obligation. § 2810. A guarantor is not liable If the con- tract of the principal is unlawful; but he is liable notwithstanding any mere personal disability of the principal, though the disability be such as to make the contract void against the principal. ARTICLE V. CONTINUING GUARANTY. § 2814. Continuing guaranty, what. § 2S15. Revocation. § 2814. A guaranty relating to a future liabll- ; ity of the principal, under successive transactions, I which either continue his liability or from time I to time renew it after it has been satisfied, is call- i ed a continuing guaranty. , § 2815. A continuing guaranty may be revoked ' at any time by the guarantor, in respect to future I transactions, unless there is a continuiiiL' considor- I ation as to such transactions which he doe.K not re- nounce. Sec. 1629, ante. §§ 2S19-2821 GUARANTY. 574 ARTICLE VI. EXONERATION OF GUARANTORS. § 2819. What dealings with debtor exonerate guarantor. § 2820. Void promises. § 2821. Rescission of alteration. § 2822. Part performance. § 2823. Delay of creditor does not discharge guarantor. § 2824. Guarantor indemnified by the debtor, not exoner- ated. § 2825. Discharge of principal by act of law does not dis- charge guarantor. § 2819. A guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or sus- pended. See sees. 2806 et seq. Rights of creditor where security given: See sec. 2854, post. Forbearance will not discharge: Sec. 2823. Neglect or refusal to sue after request will dis- charge: Sec. 2845, post. Who are sureties: See sec. 2832, post. Discharge of surety by alteration of principal's contract: See sec. 2821. § 2820. A promise by a creditor, which for any cause is void, or voidable by him at his option, does not alter the obligation or suspend or impair' the remedy, within the meaning of the last sec- , tion. § 2821. The rescission of an agreement alter- ing the original obligation of a debtor, or impair- ing the remedy of a creditor, does not restore the' 575 GUARANTY. liability of a giiarautor who lias been exonerated by such agreemeut. § 2822. The acceptauce, by a (.TeUitor. of auy- tliiug iu partial satisfaction of au obliKatlon, re- duces the obligatiou of a guarantor thereof, In the same measure as that of the principal, but (1o«'H not otherwise affect it. Note.— l*art performance of the obligation, ex- pressly accepted by tlie creditor in writing, would extinguish the obligation of the debtor, and tlu-re foro that of tlie surety: See sees. 1523, 1521. § 2823. Mere delay on the part of a cretlitor to proceed against the principal, or to enforce any other remedy, does not exonerate a guarantor. Notice to creditor to sue: See post, sec. 2845. § 2824. A guarantor, who has been indemnified by the principal, is liable to the creditor to tlie extent of the indemnity, notwithstanding that tlie creditor, without the assent of the guarantor, may have modified the contract or released the princi- pal. See sec. 2819 and sec. 2794, subd. 1, ante. § 2825. A guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the credi- tor. CHAPTER II. SURETYSHIP. Article I. Who are Sureties, §§ 2S31-2832. II. Liability of Sureties. §§ 28.'?6-2840. III. Rights of Sureties. §§ 2844-2S50. IV. Rights of Creditors. § 28r.4. V. Letter of Credit. §§ 2859-286«. §§ 2831-2837 GUARANTY. 576 ARTICLE I. WHO ARE SURETIES. § 2S31. Surety, what. § 2832. Apparent principal may show that he is surety. § 2831. A surety is one who at the request of another and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third per- son, or hypothecates property as security therefor. Distinction between sureties and guarantors: See sees. 2S07. 2S08. § 2832. One who appears to be a principal, whether by the terms of a written instrument or otherwise, may show that he is in fact a surety, except as against persons who have acted on the faith of his apparent character of principal. ARTICLE IL LIABILITY OF SURETIES. § 2836. Limit of surety's obligation. § 2837. Rules of interpretation. § 2838. Judgment against surety does not alter the re- lation. § 2839. Surety exonerated bv performance or offer of per- formance. § 2840. Surety discharged oj' certain acts of the creditor. § 2836. A surety cannot be held beyond the express terms of his contract, and if such con- tract prescribes a penalty for its breach, he can- not in any case be liable for more than the pen- alty. § 2837. In interpreting the terms of a contract 677 GUARANTY. ^ of suretyship, the same rules are to be obHerved as in the case of other contracts. § 2838. Notwithstanding the recovery of Judg- ment by a creditor against a surety, the latter still occupies the relation of surety. § 2839. Performance of the principal obll^ja- tion, or an offer of such performance, duly made as provided in this Code, exonerates a surety. [Amendment, approved March 30, 1874; Amend- ments 1873-4, 260. In effect July 1, 1874.] See sees. 1485-1505, ante. § 2840. A surety is exonerated: 1. In lilve manner with a guarantor; 2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or in- consistent with his rights, or which lessens his security; or, 3. To the extent to which he is prejudiced by an omission of the creditor to do anything, when required by the surety which it is his duty to do. Subd. 1: See see. 2819. Subd. 3: See sec. 2845. Civ. Code.— 49. §§ 2844-2847 GUARANTY. 678 ARTICLE III. RIGHTS OP SURETIES. § 2844. Surety has rights of guarantor. § 2845. Surety may require the creditor to proceed against the principal. § 2846. Surety may compel principal to perform obliga- tions, when due. § 2847. A principal bound to reimburse his surety. § 2848. The surety acquires the right of the creditor. § 2849. Surety entitled to benefit of securities held by creditor. § 2850. The property of principal to be taken first. § 2844. A surety has all the rights of a guar- antor, whether he become personally responsible or not. See sees. 2808-2810. § 2845. A surety may require his creditor to proceed against the principal, or to pursue any, other remedy in his power which the surety can- not himself pursue, and which would lighten his burden; and if in such case the creditor neglects to do so, the surety is exonerated to the extent to which he is thereby prejudiced. Mere delay by the creditor to pursue the prin- cipal does not discharge the surety, is the rule recognized by section 2823: See sec. 2840, subd. 1. § 2846. A surety may compel his principal tc perform the obligation when due. The action under this section is provided for ir section 1050, Code of Civil Procedure. Section 2845, ante, may be considered as con taining another substitute for the equitable ac tion. § 2847. If a surety satisfies the principal oblJ gation or any part thereof, whether with or with I 579 GUARANTY. gg 2%M-B54 out lej?al proceedinjrs, tho priiici|):il is houml to ro- Imburse what he has disbursed, Inchidin;; ii,«-,s sary costs and expenses; but the sun-ty 1: claim for reimbursement against other j.. m though they may have been benefited by hih act, except as prescribed by the next section. § 2848. A surety, upon satisfying the obllKa- tion of the principal, is entitled to enforce every remedy which the creditor then has against the principal to the extent of reiml)ursini: what he has expended, and also to require all his co-sure- ties to contribute thereto, without regard to th«' order of time in which they became such. § 2849. A surety is entitled to the benelit of every security for the performance of the princi- pal obligation held by the creditor, or by a co- surety at the time of entering into the contract of suretyship, or acquired by him afterwards, wheth- er the surety was aware of the security or not. § 2850, Whenever property of a surety is hy- pothecated with property of the principal, the surety is entitled to have the i)roi)erty of the prin- cipal fir.st applied to the discharge of the obliga- tion. ARTICLE IV. RIGHTS OF CREDITORS. 5 -854. Creditor entitled to benefit of securities held by surety. 2854. A creditor is entitled to the benefit of • '\ crytliing which a surety has received from the debtor by way of security for the perf«^rniance of the obligation, and may. upon the maturity of the ot'liiration, compel the application of such security t" its satisfaction. §§ 2858-2863 GUARANTY. 580 ARTICLE V. LETTER OP CREDIT. § 2858. Letter of credit, what. § 2859. How addressed. § 2830. Liability of the writer. § 2861. Letters of credit, either general or special. § 2862. Nature of general letter of credit. § 2863. Extent of general letter of credit. § 2864, A letter of credit may be a continuing guaranty. § 2865. When notice to the writer necessary. § 2866. The credit given must agree with the terms of the letter. § 2858. A letter of credit is a written instru- ment, addressed by one person to another, re- questing the latter to give credit to the person in whose favor it is drawn. § 2859. A letter of credit may be addressed to several persons in succession. § 2860. The writer of a letter of credit is, upon the default of the debtor, liable to those who gave credit in compliance with its terms. § 2861. A letter of credit is either general or special. When the request for credit in a letter is addressed to specified persons by name or descrip- tion, the letter is special. All other letters of credit are general. Credit to correspond with terms of the letter: See sec. 2866, post. § 2862. A general letter of credit gives any person to whom it may be shown authority to comply with its request, and by his so doing it be- comes, as to him, of the same effect as if ad- dressed to him by name. § 2863. Several persons may successively give credit upon a general letter. Ml LIEN. § 2864. If the parties to a letter of credit ap- pear, by its terms, to couteiiiplate a courBe of fu- ture dealing between the parlies, ii is not ex- hausted by jrivinjr a credit, even to the aujount limited by the letter, which is subsequently re- duced or satislied by payments made by the debt- or, but is to be deemed a continuing guaranty. § 2865. The writer of a letter of credit Is liable for credit given upon it without notice to him. un- less its terms express or imply the n»'cesslty of giving notice. § 2866. If a letter of credit prescribes the per- sons by whom, or the mode in which, the credit is to be given, or the term of credit, or limits the amount thereof, the writer is not bound except for transactions which, in these respects, con- form strictly to the terms of the letter. TITLE XIV. LIEN. Chapter I. Liens in General, §§ 2872-2913. II. Mortgage, §§ 2920-2971. III. riedge, §§ 2980-3011. IV. Bottomry, §§ 3017-3029. V. Respondentia, §§ 303G-3040. VI. Other Liens, §§ 304G-3060. VII. Stoppage in Transit, §§ 3076-3080. CHAPTER I. LIENS IN GENERAL. Article I. Definition of Liens. §§ 2872-2877. II. Creation of Liens. §§ 2881-2884. III. Effect of Lions, §§ 2888-2892. IV. Priority of Liens. §§ 2897-2899. V. Redemption from Liens. 55 2903-2905. VI. Extinction of Liens, §5 2909-2913. §§ 2872-2876 LIEN. B82 ARTICLE I. DEFINITION OF LIEN? § 2872. Lien, what. § 2873. Liens, general or special. § 2874. General lien, what. § 2875. Special lien, what. § 2876. Prior liens. § 2877. Contracts subject to provisions of this chapter. § 2872. A lien is a charge imposed in some mode other than by a transfer in trust upon spe- cific property, by which it is made security for the performance of an act. [Amendment approved February 15, 1878; Amendments 1877-8, 88. In effect April 16, 1878.] Compare Code Civ. Proc, sec. 1180. § 2873. Liens are either general or special. § 2874. A general lien is one which the holder thereof is entitled to enforce as a security for the performance of all the obligations, or all of a particular class of obligations, which exist in his favor against the owner of the property. Factors.— Usage of trade usually gives factors a general lien, which is established in this State by section 3053, post. Banker: Sec. 3054, post. Master of ship: Sec. 3055, post. Mate and seamen: Sec. 3056, post; post, also, Appendix, pp. 743 et seq.; 790. Lien for services: See sec. 3051, post. § 2875. A special lien is one which the holderi thereof can enforce only as security for the per- formance of a particular act or obligation, and of such obligations as may be incidental thereto. Incidental thereto: See ne^t section. § 2876. Where the holder of a special lien is 683 LIEN. HanoM I compelled to satisfy u prior li»'n for his own pr.>- 1 tection, lie may euforce payment of the amount ; so paid by him, as a part of the claim f(jr wbU-h I his own lien exists. § 2877. Contracts of mortga^'e, pledRe. bot- tomry, or respondentia, are subject to all the pr«- Tisions of this chapter. ARTICLE II. CREATION OF LIENS. S 2881. Lien, how created. S 2882. No lien for claim not due. S 2883. Lien on future interest. i 2884. Lien may be created by contract. § 2881. A lieu is created: I 1, By contract of the parties; or, I 2. By operation of law. S 2882. No lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed. i § 2883. An a^^reement may be made to create a jllen upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from I the time when the party agreeing to give it ac- I quires an intere.st in the thing, to the extent of such interest. § 2884. A lieu may be created by contract, to take immediate effect, as security for the per- formance of obligations not then in existence. lU'tention of possession no evitleuce of fraud: S. .' note sec. 2920. §§ 2888-2892 LIEN. 584 ARTICLE III. EFFECT OF LIENS. § 2888. Lien, or contract for lien, transfers no title. § 2889. Certain contracts void. § 2890. Creation of lieu does not imply personal obligation. § 2891. Extent of lien. § 2892. Holder of lien not entitled to compensation. § 2888. Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, trans- fers no title to the property subject to the lien. Sees. 2927, 2929, 2936, post. § 2889. All contracts for the forfeiture of prop- erty subject to a lien, in satisfaction of the obli- gation secured thereby, and all contracts in re- straint of the right of redemption from a lien, are void. § 2890. The creation of a lien does not of itself imply that any person is bound to perform the act for which the lien is a security. See sees. 2909, 2928, 3000, post. § 2891. The existence of a lien upon property' does not of itself entitle the person in whose favor it exists to a lien upon the same property for the performance of any other obligation than that which the lien originally secured. § 2892. One who holds property by virtue of a lien thereon, is not entitled to compensation from the owner thereof for any trouble or expense which he incurs respecting it, except to the same extent as a borrower, under sections 1892 and 1893. 585 LIEN. ARTICLE IV. PRIORITY OK LIENS. S 2897. Priority of Hens. ' S 2898. Priority of mortgage for price. S 2899. Order of resort to different funds. § 2897. Other things boliig equal, dilTercnt liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia. ( § 2898. A mortgage given for the price of real 1 property, at the time of its conveyance, has prlor- ilty over all other liens created against the pur- chaser, subject to the operation of the recording ! laws. [ § 2899. Where one has a lien upon several !' things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he ,can do so without risk of loss to himself, or of .Injustice to other persons, must resort to the prop- erty in the following order on the demand of any party interested: 1. To the things upon which he has an exclusiv*' lieu; 2. To the things which are subject to the few- est subordinate liens; . 3. In like manner inversely to the number of isubordinate liens upon the same thing; and, I 4. When several things are within one of the foregoing classes, and subject to the same number <'f lions, resort must be had:— (1.) To the things which have not been trans- ferred since the prior lien was created; (2.) To the things which have been so trans- ferred without a valuable consideration; and. 5§ 2903-2905 LIEN. 5S6 (3.) To the things Avhich have been so trans- ferred for a valuable consideration in the inverse order of the transfer. ARTICLE V. I REDEMPTION FROM LIEN. § 2903. Right to redeem. § 2904. Rights of inferior lienor. § 2905. Redemption from lien, how made. § 2903. Every person, having an interest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed. Redemptioners from execution sale: See Code Civ. Proc, sees. 701 et seq. Pledgor's right of redemption may be foreclosed: Sec. 3011, post; see Code Civ. Proc, sees. 701-707, 346, 347. § 2904. One who has a lien inferior to another, i upon the same property, has a right; 1. To redeem the property in the same manner as its OTTuer might, from the superior lien; and, 2. To be subrogated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby. § 2905. Redemption from a lien is made by performing or offering to perform, the act for the performance of which it is a security, and paying or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay. See sec. 1490, ante. 187 LIEN. ,1 2Mi.9u ARTICLE VI. EXTINCTION OF LIENS. S 2909. Lien deemed accessory to the act whose pcrrorm- ance it secures. § 2910. Extinction by sale or conversion. , § 2911. Lien extinguished by lapse of time under Statute of Limitations. § 2912. Apportionment of lien. S 2913. When restoration extinguishes lien. § 2909. A lien is to bo cUmmikmI accessory to the act for the performance of which it is a security, whether any person is bound for such perform- ance or not, and is extiuguishable in lilie manner with any other accessory oblij^ation. Assignment of debt: See sec. 203G, post. § 2910. The sale of any property on which there is a lien, in satisfaction of the claim secured thereby, or in case of personal property, its wrong- ful conversion by the person holding the lien, ex- tinguishes the lien thereon. § 2911. A lien is extinguished by the lapse of the time wnthin which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation. See sec 2922, post, Code Civ. Troc, sees. 335- 347. § 2912. The partial performance of an act se- cured by a lien does not extinguish the lien upon any part of the property subject thereto, even If It is divisible. § 2913. The voluntary restoration of proin^rty to its owner by the holder of a lien thereon, de- pendent upon possession, extinguishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it, notwithstanding any § 2920 LIEN. (88 such agreement, as to creditors of the owner and persons, subsequently acquiring a title to the prop- erty, or a lien thereon, in good faith, and for a good consideration. [Amendment approved March 30, 1874; Amendments 1873-4, 260. In effect July 1, 1874.] A third person may act as pledge-holder: Sees. 2997, 2998, post. CHAPTER II. MORTGAGE. Article I. Mortgages in General, §§ 2920-2942. II. Mortgages of Real Property, §§ 2947-2952. III. Mortgages of Personal Property, §§ 2955-2971. ARTICLE I. § 2920. Mortgage, what. § 2921. Property adversely held may be mortgaged. § 2922. To be in writing. § 2923. Lien of a mortgage, when special. § 2924. Transfer of interest, when deemed a mortgage. § 2925. Transfer made subject to defeasance may be proved. § 2926. Mortgage on what a lien. | § 2927. Mortgage does not entitle mortgagee to possession. § 2928. Mortgage not a personal obligation. I § 2929. Waste. | § 2930. Subsequently acquired title enures to mortgagee. ; § 2931. Foreclosure. § 2932. Power of sale. j § 2933. Power of attorney to execute. I § 2934. Recording assignment of mortgage. j § 2935, Recording assignment of mortgage not notice tcj mortgagor. § 2936. Mortgage passes by assignment of debt. : § 2937. Time allowed for filing mortgage for record. (Re-I pealed.) | § 2938. Mortgage, how discharged. ; § 2939. Same. ' § 2939%. Discharge by foreign executors. j § 2940. Certificate and record of discharge. i § 2941. Duty of mortgagee on satisfaction of mortgage. § 2942. Provisions of this chapter do not affect bottomry or respondentia. § 2920. Mortgage is a contract by which spe- cific pro*ierty is hypothecated for the performance o^J LIEN. of an act, without the necessity of a change of [lossession. Nule.— The Code substitutes, instead of the actu- al possession previously requisite, tho recording provisions of sees. 2957, 2959, 29G2, 29G:i, 29G5, and l".h;»>. Actual transfer of possession of personally would change it into a pledge: See 2924, post. 5J 2921. A mortgage may be created upon prop city held adversely to the mortgagor. i'his provision is a logical sequence of secli<»u L".>17, post, and section 1047, ante. r<»perty. Authorizations generally: See sec. 2309, ante. S 2934. An assignment of a mortgage may bo 1 1 corded in like manner as a mortgage, and such record operates as notice to all persons subse- quently deriving title to the mortgage from tin* assignor. [Amendment approved Marcli 30. 1874; Amendments 1873-4, p. 2r,l. In effect July 1. 1874.1 § 2935. AVhen the mortgage is executed as se- curity for money due. or to become duo. on a promissory note. bond, or other instrument, desig- nated in the mortgage, the record of tlie assign- ment of tlie mortgage is not. of itself, notice to a mortgagor, his heirs, or personal ivprescnt.'itlvos. §§ 2936-2939% LIEN. 592 SO as to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument. [Amendment approv- ed March 30, 1874; Amendments 1873-4, p. 261. In effect July 1, 1874.] § 2936. The assignment of a debt secured by mortgage carries with it the security. § 2937. [Repealed March 30, 1874; Amend- ments 1873-4, 261. In effect July 1, 1874.] See sec. 858, ante. § 2938. A recorded mortgage may be discharg- ed by an entry in the margin of the record there- of, signed by the mortgagee, or his personal rep- resentative or assignee, acl^nowledging the satis- faction of the mortgage in the presence of the recorder, vrho must certify the aclvuowledgment in form substantially as follows: "Signed and ac- Ivuowledged before me, this day of , in the year . A B, Recorder." § 2939. A recorded mortgage, if not discharged as provided in the preceding section, must be dis- charged upon the record by the officer having cus- tody thereof, on the presentation to him of a cer- tificate signed by the mortgagee, his personal rep- resentatives, or assigns, acknowledged or proved and certified as prescribed by the Chapter on Re- cording Transfers, stating that the mortgage has been paid, satisfied, or discharged. § 29391,4. Foreign executors and administra- tors may satisfy mortgages upon the records of any county in this State, upon producing and record- ing in the office of the County Recorder of the county in which such mortgage is recorded, a duly certified and authenticated copy of their letters testamentary or of administration, and which cer- :/i LIEN. I] • liricate t^biill also recite that said lelterK huve not 1m en revolved, [^aw section apijroved March 8, I^'.t.'.; Stats. 181J3, i>. lis. in vlXwi iiuiueiliaii'Iy.J 2940. A certilicate of the discharge (if a morl- ^ ue, and the proof or aclcnowled^nient thereof, must be recorded at lenjjth, and a reference made ill ilie record to the book and page where the mort- ua-e is recorded, and in the minute of ilie dis (1 large made upon the record of the mortgage t«> tlie book and page where the discharge is re- v<- fuses to execute, acknowledge, and deliver to the mortgagor the certificate of discharge, or to enter satisfaction or cause satisfaction of the mortgage T(» be entered, as provided in this chapter, is lia- ble to the mortgagor, or his grantee or heirs, for all damages which he or they may sustain by rea- smu of such refusal, and shall also forfeit to him or them the sum of one hundred dollars. [Amend- ment approved April 15, 1880; Amendments 1880. p. 10. In effect April 15, 1880.] ^ 2942. Contracts of bottomry or respondentia, although in the nature of mortgages, are not af- fected by any of the provisions of this chapter. Bottomry: See sec. 3017, post. Respondentia: See sec. 303G, post. §§ 2947-2950 LIEN. 594 ARTICLE II. MORTGAGE OF REAL PROPERTY. § 2947. What real property may be mortgaged. § 2948. Form of mortgage. § 2949. What must be recorded as a mortgage. (Repealed.) § 2950. Defeasance, to affect grant absolute on its face, must be recorded. § 2951. By whom paid after property passes by succession or will. (. Repealed.) § 2952. May be recorded. § 2947. Any interest in real property which is capable of being transferred may be mortgaged. See sec. 1045, ante. § 2948. A mortgage of real property may be made in substantially the following form: "This mortgage, made the day of , in the year , by A B, of , mortgagor, to C D, of , mortgagee, witnesseth: "That the mortgagor mortgages to the mortga- gee [here describe the property], as security for the payment to him of dollars, on [or before] the day of , in the year , with interest thereon [or as security for the payment of an obli- gation, describing it, etc.] A B." Deed absolute in form construed as a mortgage: See sec. 2924, ante. § 2949. [Repealed March 30. 1874; Amend- ments 1873-4, 2 2. In effect July 1, 1874. § 2950. When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain con- ditions, such grant is not defeated or affected as against any person other than the grantee or his heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed 595 LIEN. and acknowledged, shall have been recorded in the office of the county recorder of the county where the property is situated. See sec. 1217, ante. Deed absolute on its face, wiion u mortgage: See sees. 2924, 2925, 2950. Compare with sec. 2925, ante. § 2951. [Repealed March 30, 1874; Amend- ments 1873-4, 202. In effect July 1, 1874.] I § 2952. Mortgages of real property may l>e [acknowledged or proved, certified and recorded, In !like m.'inner and with like effect as grants tliere- ;of. [Amendment approved March 30, 1874; i Amendments 1873-4, p. 262. In effect July 1, J 1874.] >■ See sees. 1109-1172 and 1213-1217, ante. |. Fees for acknowledgment and recording: Polit. (Code. sees. 708, 4235, 4245. !, Mortgages recorded in separate set of books: I.Sec. 1171, ante. § 2955 LIEN. 696 ARTICLE III. MORTGAGE OF PERSONAL PROPERTY. ] § 2955. What personal property may be mortgaged. 1 § 2956. Form of personal mortgage. 1 § 2957. When void as to third persons. ^ § 2958. Mortgage of ships, when void as to third persons. § 2959. Where recorded. § 2960. Property in transit, where to be recorded. § 2961. Property of a common carrier, where to be recorded. § 2962. Recorded in different places. § 2963. Personal mortgage may be recorded. § 2964. Certified copies may be recorded, when. § 2965. Property exempt from effect of mortgage, when. § 2966. May be taken by mortgagee as a pledge, when. § 2967. How foreclosed. § 2968. Mortgage property may be levied upon. § 2969. Limitations on right of levy. § 2970. Distribution of proceeds of sale under process. § 2971. Sections not applicable to mortgage of certain ships. § 2972. Lieu of a mortgage on growing crop. § 2955. Mortgages may be made upon the fol- j lowing personal property, and none other: j : First— Locomotives, engines, and other rolling- stock of a railroad. Second— Steamboat machinery, the machinery used by machinist foundrymen and mechanics. , Third— Steam engines and boilers. Fourth— Mining machinery. Fifth— Printing presses and material. Sixth— Professional libraries. Seventh— Instruments of surveyors, physicians, and dentists. Eighth— Upholstery, furniture, and household goods. Ninth— Oil paintings, pictures, and worlds of art. Tenth— All growing crops, including grapes and fruit. Eleventh— Vessels of more than five tons bur- den. Twelth— Instruments, negatives, furniture, anc fixtures of a photograph gallery. 697 LIEN. J 2aG< Thirteenth— The machinery, casks, pipes. tii!)o«, and utensils used In the manufacture or Ktf)raKe of wine, fruit brandy, fruit syrups, or suk'ar. also wines, fruit brandy, fruit syrup, or su^ar. with the cooperage in which the same are contaliu'd. Fourteenth— Pianos and organs. Fifteenth— Iron and steel safes. Sixteenth— Neat cattle, horses, iiiulvs, swine, sheep, and goats, and the increase thereof. Seventeenth- Hai-vesters. threshing outfits, hay presses, wagons, farming implements, and the 3quipments of a livery stable, including biiggiea, jarriages, harness, robes. Eighteenth— Abstract systems, boolvs, maps, )apers, and slips of searchers of records. Nineteenth— Raisins and dried fruits, cured or n process of being cured. Also, all boxes, frult- H'aders, drying-trays, and fruit-ladders, [Amend- nent approved March 9, 18D7; Stats. 1807, ch. This section was also amended in 1895, Stats. .895, p. 48. Removal of property from mortgaged premises, 7hen larceny : See Penal Code. sec. 502V2. Further chattel is larceny: See Penal Code, sec. 38. 2956. A mortgage of personal property may )e made in substantially the following form: "This mortgage, made the day of , in the ear , by A B, of , by occupation a , oortgagor, to C I), of , by occupation a , Qortgagee, witnesseth: That the mortgagor mortgages to the mort- :agee [here describe the prop<>rty]. as security for •he payment to him of dollars on [or before] •he day of , in the year , with interest hereon [or, as security for the payment of a note r obligation, describing it, etc.]. A B." §§ 2957-2961 LIEN. 598 § 2957. A mortgage of personal property is void as against creditors of tlie mortgagor and subsequent purchasers and incumbrancers of the property in good faith and for value, unless: 1. It is accompanied by the affidavit of all the parties thereto that it is made in good faith and without any design to hinder, delay, or defraud creditors; 2. It is aclvuowledged or proved, certified and recorded, in like manner as grants of real prop- erty. Kecording: See sees. 2959, 2961-2965, post. § 2958. A mortgage of any vessel or part of any vessel under the flag of the United States is ; void as against any person (other than the mort- gagor, his heirs, and devisee, and persons having' actual notice thereof), unless the mortgage is re- corded in the office of the collector of customs where such vessel is registered or enrolled. § 2959. A mortgage of personal property musti be recorded in the office of the county recorder of the county in which the mortgagor resides, and' also of the county in which the property mortgag-- ed is situated, or to which it may be removed. Duty of recorder: See Polit. Code, sec. 4235. Eecorc^ in different places: See sec. 2962. § 2960. For the purposes of this article, proper- ty in transit from the possession of the mortgagee to the county of the residence of the mortgagor, or to a location for use, is, during a reasonable time for such transportation, to be taken as sit- uated in the county in which the mortgagor re-, sides, or where it is intended to be used. See sec. 2965, subd. 1. § 2961. For a like purpose, personal property used in conducting the business of a common car 599 LIEN. rier is to be taken as situated lu the county in whicli tlie principal office or place of buslnoHK of the currier is located. § 2962. A siu^'le niort^'ajxe of perHonal prop- erty, embracing' several thiu^'8 of Huch character or so situated that by the provisions of tlUs arti- cle separate niortua^os upon them would l>o n*- quired to be recorded in different places, is (»nly valid in respect to the thiu.i^s as to which it is duly recorded. County where property is situated: Sec. 2059. § 2963. Except as it is otherwise in this article provided, niortgrajxes of personal property may be aclvnowledjred, or proved and certified, recorded in lil^e manner and with lilce effect as j^rants of real property: but they must be recorded in booiis kei>t for personal mortgages exclusively. See sees. 11G9-1171 and 1213-1217, ante. I § 2964. A certified copy of a mortpape of per- isonal property once recorded may be recorded in [any other county, and when so recorded the rec- 'ord thereof has the same force and effect as thouc:h it was of the original mortgage. ! 2965. When personal property mortgaged is thereafter by the mortgagor removed from the county in which it is situated, it is, except as be- tween the parties to the mortgage, exempted from the operation thereof, unless either: 1. The mortgagee, within thirty days after such removal, causes the mortgage to be recorded in the county to which the property lias been remov- ed; or, 2. The mortgagee, within tliirty days after such removal, takes possession of the property, as pre- scribed in the next section. S§ 2966-2970 LIEN. 600 § 2966. If the mortgagor voluntarily removes or permits tlie removal of the mortgaged property from the county in which it was situated at the time it was mortgaged, the mortgagee may take possession and dispose of the property as a pledge for the payment of the debt, though the debt is not due, § 2967. A mortgagee of personal property, when the debt to secure which the mortgage was executed becomes due, may foreclose the mortga- gor's right of redemption by a sale of the prop- erty, made in the manner and upon the notice prescribed by the Title on Pledge, or by proceed- ings under the Code of Civil Procedure. Sale of pledge: See sees. 3000 et seq., post. Actual notice required: Sec. 3002, post. Foreclosure: Code Civ. Proc, sees. 726-728. § 2968. Personal property mortgaged may be talien under attachment or execution issued at the suit of a creditor of the mortgagor. § 2969. Before the property is so taken, the of- ficer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mort- gagee. Measure of special owner's damage for conver- sion: See, post, sec. 3338. § 2970. When the property thus taken is sold under process, the officer must apply the proceeds of the sale as follows: 1. To the repayment of the sum paid to the mortgagee, with interest from the date of such payment; and, 2. " The balance, if any, in like manner as the 601 LIEN. II 2J71.2J72 proceeds of sales iiiuler execution are applknl to otber cases. § 2971. Sections 2057, 2051), 20(K), 2001, 2062 20(i3. 2004, 2005, and 2000 do not apply to any mortgage of a ship or part of a ship uud^r the llajj of the United States. § 2972. The lien of a mortj;aKe on a ktowIiik' crop continues on the crop after severance, wheth- er remaining in its original state or converted Into another product, so long as the same remains on the land of mortgagor. [New section approved April 1, 18TS; Amendments 1877-8, p. 80. In ef- fect April 1, 1878.] CHAPTER III. PLEDGE. § S986. Pledge, what. S 2987. When contract Is to be deemed a pledge. § 2988. Delivery esential to validity of pledge. S 2989. Increase of thing. S 2990. Lienor may pledge property to extent of his lien. § 2991. Real owner cannot defeat pledge of property trans- ferred to apparent owner for che purpose of pledge. § 2992. Pledge lender, what. § 2993. Pledge holder, what. 5 2994. When pledge lender may withdraw property pledg.d. § 2996. Obligations qf pledge holder. § 2996. Pledge holder must enforce rights of pledgee. § 2997. Obligation of pledgee and pledge bolder, for re- ward. § 2998. Gratuitous pledge holder. § 2999. Debtor's misrepresentation of value of pledge. S 3000. When pledgee may sell. § 3001. When pledgee must demand performan' - § 3002. Notice of sale to pledgor. § 3003. Waiver of notice of sale. § 3004. Waiver of demand. 5 3005. Sale must be by auction. S 3006. Pledgee's sale of securities. Civ. Code-^1 §§ 2986-2990 LIEN. 602 § 3007. Sale on the demand of the pledgor. § 3008. Surplus to be paid to pledgor. § 3009. Same. § 3010. Pledgee's purchase of property pledged. § 3011. Pledgee may foreclose right of redemption. § 2986. I*led.ge is a deposit of personal prop- erty by way of security for the performance of another act. See sec. 3006, post. Increase of property pledged: Sec. 2989, infra. Note.— Much difficulty has arisen in determin- ing whether a certain transaction is a pledge or a chattel mortgage, the question generally be- ing whether the title has passed or not. In this State, it has been seen, title never passes in case of property conveyed or deposited as security: Sec. 2SSS, ante. And, also, whenever the posses- sion of personal property is transferred as secur- ity only, it is to be treated as a pledge: Sec. 2987, post. And even a chattel mortgage, when the possession of the property mortgaged is trans- ferred becomes a pledge: Sec. 2924, and sec. 2987. The question is, therefore, much simplified, pos- session being the criterion. § 2987. Every contract by which the posses- sion of personal property is transferred, as secur- ity only, is to be deemed a pledge. § 2988. The lien of a pledge is dependent on possession, and no pledge is valid until the prop- erty pledged is delivered to the pledgee, or to a pledge holder, as hereafter prescribed. § 2989. The increase of property pledged is pledged with the property. § 2990. One who has a lien upon property may pledge it to the extent of his lien. i LIEN. H»91. Lienor's action for damages: See sec. 3:i38. pout. Compare next section. § 2991. One who lias allowed another to a»- snme the apparent ownership of property for the purpose of making any transfer of it, cannot set up his own title to defeat a pled^'e of the pmp- erty, made by the other to a pledgee who recelv«Kl the property in ?:ood faith, in the ordinary y giving reasonable notice to the pledgor and pledgee to appoint a new pledge holder, and in case of their failure to agree, by depositing the property pledg- od with some impartial person, who will then l>e tMititlod to a reasonable compensation for his <;ire of the same. -^ 2996. A pledge holder must enforce all the ri-lits of tlie pledgee, unless authorizetl by him to \\ aive them. §§ 2997 3002 LIEN. 604 § 2997. A pledgee, or a pledge holder for re- ward, assumes the duties and liabilities of a de- positary for reward. Depositary on reAvard: See sec. 1852, ante. See see. 3007, post. § 2998. A gratuitous pledge holder assumes the duties and liabilities of a gratuitous deposi- tary. See sees. 1845 and 2995. § 2999. Where a debtor has obtained credit, or an extension of time, by a fraudulent misrepre- sentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value represented; and in default thereof may recover his debt immediately, though it be not actually due. § 3000. When performance of the act for which a pledge is given is due, in whole or in part, the pledgee may collect what is due to him by a sale of property pledged, subject to the rules and exceptions hereinafter prescribed. The fourth remedy is provided by sec. 3011, post. And sale is restricted in case of most choses in ac- tion by sec. 3006. post. See also sec. 2890, ante. Foreclosure of pledge: Sec. 3011. § 3001. Before property pledged can be sole and after performance of the act for which it is security is due, the pledgee must demand perform- ance thereof from the debtor, if the debtor can be found. [Amendment approved March 30, 1874; Amendments 1873-4, p. 262. In effect July 1, 1874.] § 3002. A pledgee must give actual notice to the pledgor of the time and place at which the property pledged will be sold, at such a reasona- «05 lii:n. ii Z'fjzyjdt ble time before the saU' as will .ti;,!.!. i),,- pledKor to attend. § 3003. Notice of .sale may be waivwl by a pledgor at auy time; but is uot waived by a mcro waiver of demand of performance. § 3004. A debtor or pledgor waives a ^Iciuand of performance as a condition precedent to a sale of tbe property pledged, by a positive refusal to perform, after performance is due; but cannot waive it in any other manner except by contract. § 3005. Tbe sale by a pledgee, of property pledged, must be made by public auction, in the manner and upon the notice to the public usual at the place of sale, in respect to auction sales of similar property; and must be for the highest ob- tainable price. § 3006. A pledgee cannot sell any evidence of debt pleilged to him, except the obligations of gov- ernments, states, or corporations; but he may col- lect the same when due. § 3007. Whenever property pledged can be I sold for a price sufficient to satisfy the claim of the pledgee, the pledgor may require it to be sold. and its proceeds to be applied to such satlsfaii when due. See sec. 3009, infra. § 3008. After a pledgee has lawfully s<.l Faster may sell cargo: Sec. 2370, ante. § 3039. The provisions of sections 3022 to 3020 •ipply equally to loans on respondentia. ^' 3040. The owner of a ship is bound to repay /o the owner of its carsxo all which the latter is 'ompellod to pay under a contract of respondentia nade by the master, in order to dischnrsre its lien. See sec. 2385, ante. Master personally responsible: Sec. 238.'{. ante. §§ 3046-3048 LIEN. 610 CHAPTER VI. OTHER LIENS. § 3046. Lien of seller of real property. § 3047. When transfer of contract waives lien. § 3048. Extent of seller's lien. § 3049. Lien of seller of personal property. § 3050. Purchaser's lien on real property. § 3051. Lien for service. § 3052. Liens on personal property. § 3053. Lien of factor. § 3054. Banker's lien. § 3055. Shipmaster's lien. § 3056. Seamen's lien. § 3057. Officers' lien. § 3058. Judgment lieu. § 3059. Mechanic's lien. § 3060. Lien on ships. § 3046. One Trho sells real property has a ven- dor's lien thereon, independent of possession, for so much of the price as remains unpaid and un- secured otherwise than by the personal obligation of the buyer. A transfer of personal security waives the lien: Sec. 3047, infra. Transfer by vendee to bona fide purchaser or incumbrancer discharges lien: Sec. 3048, infra. § 3047. Where a buyer of real property gives to the seller a written contract for payment of all or part of the price, an absolute transfer of such contract by the seller waives his lien to the extent of the sum payable under the contract; but a transfer of such contract in trust to pay debts, and return the surplus, is not a waiver of the lien. § 3048. The liens defined in sections 3046 and 3050 are valid against every one claiming under the debtor, except a purchaser or incumbrancer in good faith and for value. See sec. 19, ante. 5U LIEN. . § 3049. One whu sells persoual property hoji a special lieu thereou, dependeut on poKscshlon, for Its price, if it is in his imssession when th*- price becomes payable, and may enforce his lieu lu like manuer as if the property was pled;,'ed to him for the price. See sec. 3002, ante. § 3050. Oue who pays to the owner any part [)f the price of real property, under an agreement for the sale thereof, has a special lieu upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back, in case of a failure of consideration. § 3051. Every person who, while lawfully in possession of an article of personal property, ren- ders any service to the owner thereof by labor or ?kill employed for the protection, improvement, ^afe keeping, or carriage thereof, has a special ien thereou, dependent on possession, for the com- Deusation, if any, which is due to him from the )wner for such service. And livery or boarding ;)r feed stable proprietors and persons pasturing ;iorses or stock have a lien dependeut on posses- ion for their compensation in caring for, board- 'ng. feeding, or pasturing such horses or stock. 'Amendment approved March 20, 1878; Amend- jneuts 1877-8, p. 80. In effect May 28. 1878.] ) Carriers' lien: Sees. 2144, 2101. § 3052. A person who makes, alters, or repairs iny article of personal property, at the rero('eeds has not been extin^nished, may, upon the insolvency of the buy- er or consij^^iee becomint; known to him after part- ing: with the property, stop it while on its transit to the buyer or consij^nee. and resume possession tlu'reof. CI' Code-52 §5 3077-3080 NEGOTIABLE INSTRUMENTS. 614 That bills of lading are negotiable: See sees. 2127, 2128, ante. § 3077. A person is insolvent, within the mean- ing of the last section, when he ceases to pay his debts in the manner usual with persons of his business, or when he declares his inability or un- willingness to do so. § 3078. The transit of property is at an end when it comes into the possession of the consignee, or into that of his agent, unless such agent is em- ployed merely to forward the property to the con- signee. § 3079. Stoppage in transit can be effected only by notice to the carrier or depositary of the property, or by talking actual possession thereof. § 3080. Stoppage in transit does not, of itself, rescind a sale, but is a means of enforcing the lien of the seller. TITLE XV. NEGOTIABLE INSTRUMENTS. Chapter I. Negotiable Instruments in General, §§ 3086-3165. II. Bills of Exchange, §§ 3171-3238. III. Promissory Notes, §§ 3244-3248. IV. Checks, §§ 3254-3255. ^. Banli Notes and Certificates of De- posit, §§ 3261-3262. CHAPTER I. NEGOTIABLE INSTRUMENTS IN GENERAL. Article I. General Definitions, §§ 3086-3095. II. Interpretation, §§ 3099-3104. III. Indorsement, §§ 3108-3125. IV. Presentment for Payment, §§ 3130-3137. V. Dishonor, §§ 3141-3151. VI. Excuse of Presentment and Notice, §§ 3155-3169. Vn. Extinction, §§ 3164-3165. 615 NEGOTIABLE I.NSTRUMEN , ARTICLE I. GENERAL DEFINITIONS. S 3086. To what Instruments this title is applicable. S 3087. Negotiable instrument, what. S 3088. Must be for unconditional payment of money. 9 3089. Payee. § 3090. Instrument may be in alternative. § 3091. Date, etc. § 3092. May contain a pledge, etc. 5 3093. What it must not contain. 5 3094. Date. S 3096. Different classes of negotiable Instrument*. § 3086. The provisions of this title apply only to negotiable instruments, as defined In this ar- ticle- § 3087. A negotiable instrument is a written promise or request for the payment of a certain sum of money to order or bearer, in conformity to the provisions of this article. P^ictitious payee: See sees. 3102, 3103. § 3088. A nejxotiable instrument must be made payable in money only, and witliout any condition not certain of fulfillment. Other contract in instrument: See intra, sec. 3093. \ § 3089. The person to whose order a negotiable I Instrument is made payable must be ascertainable 'at the time the instrument is made. Fictitious payee: See sees. 3102, 3103. Indorsement in blnnlc: See sec. 312.". { § 3090. A negotiable instrument may give to jthe payee an option between the jiayment of the ;^um specified therein and the performance of an- pther act; but as to the latter, the instrument is act within the provisions of this title. §§ 3091-3095 NEGOTIABLE INSTRUMENTS. 616 § 3091. A ne2:otiable instrument may be with or without date, and with or without designation of the time or pkice of payment. Antedating: See sec. 3094. Time of payment: See sec. 3248, post. Place of payment: See sees. 3100, 3130, 3131, subd. 4. § 3092. A negotiable instrument may contain a pledge of collateral security, with authority to dis- pose thereof. § 3093. A negotiable instrument must not con- tain any other contract than such as is specified in this article. § 3094. Any date may be inserted by the mak- er of a negotiable instrument, whether past, pres- ent, or future, and the instrument is not invali- dated by his death or incapacity at the time of the nominal date. § 3095. There are six classes of negotiable in- struments, namely: 1. Bills of exchange; 2. Promissoi-y notes; 3. Bank notes; 4. Checks; .5. Bonds; C. Certificates of deposit. Bills of lading: Sec. 2127, ante. Certificates of stock are not negotiable instru- ments: See ante, sec. 324. Bills of exchange: See sees. 3171 et seq. Promissory notes: See sees. 3244 et seq. 1'* Bank notes, bonds, and certificates of deposit J^ See sec. 3261. Checks: See sees. 3254 et seq. 617 NEGOTIABLE INSTUUMEN I AliTICLK II. INTERPRETATION OF NEGOTIABLE INSTRUMENTB. S 3099. Time and place of payment. 5 3100. Place of payment not specified. § 3101. Instruments payable to a person or LIh order, huw construed. S 3102. Unindorsed note, when negotiable. S 3103. Fictitious payee. i 3104. Presumption of consideration. § 3099. A negotiable instrumcDt wUuU «1«n .he bacli of the instrumeut, If there is KUfflcleut :pace theieou for that purpose § 3110. "NVheD there is uot room for a sij^nuture ipon the baciv of a iie;,'otiable iiistruiuent, a kIk- lature equivalent to au indorsement thereof uiay )e made upon a paper annexed thereto. § 3111. An indorsement may be jjeneral or ipecial. § 3112. A general indorsement is one by wliich 10 indorsee is named. § 3113. A special indorsement specifies the in- lorsee. § 3114. A negotiable instrument bearing a gen- ;ral indorsement cannot be afterward specially ndorsed; but any lawful holder may turn a gen- !ral indorsement into a special one, by writing ibove it a direction for payment to a particular )erson. § 3115. A special indorsement may. by express vords for that purpose, but not otherwise, be so nade as to render the instrument not negotiable. § 3116. Every indorser of a negotiable instru- nent, unless his indorsement is qualified, war- ants to everj' subsequent holder thereof, who is lot liable thereon to him: 1. That it is in all respects what it purports to )p: 2. That he has a good title to it; 3. That the signatures of all prior parties are )inding upon them; 4. That if the instrument is dislionored. the In- lorser will, upon notice thereof duly given to him, >r without notice, where it is excusee la«t section. § 3137. A party to a ne^'otiable instrument may require, as a condition concurrent to its iiaymmt by him: 1. Tliat the instrument be surrendered to him. unless it is lost or destroyed, or the holder has other claims upon it; or, 2. If the holder has a right to retain the instru- ment and does retain it, then that a receipt for the amount paid, or an exoneration of the party pay- inpr. be WTitten thereon; or, 3. If the instrument is lost or destroye5 3150. Additional time for notice by Indorsor [§ 3151. Effect of notice of dishonor. j 15 3141. A negotiable instrument is dishonortnl. when it is either not paid, or not accepted, ac- ••"I'ding to its tenor, on presentment fur the pur- Civ. Code— 53 §§ 2142-3144 NEGOTIABLE INSTRUMENTS. 626 pose, or without presentmeut, where that is ex- cused. Preseutment for payment: See sec. 3186. Dishonor of bill by npnacceptance: Sees. 3187, 3188, 3194. Damages allowed on dishonor of foreign bills of exchange: See sees. 3234-3238. § 3142. Notice of the dishonor of a negotiable instrument may be given: 1. By a holder thereof; or. 2. By any party to the instrument who might be compelled to pay it to the holder, and who would, upon taking it up, have a right to reim- bursement from the party to whom the notice is given. Protest of bill of exchange: See post, sec. 3225. Notice of protest: See sec. 3231, post. Notice of dishonor to acceptor for honor: See sees. 3206. 3207. § 3143. A notice of dishonor may be given in any form which describes the instrument with reasonable certainty, and substantially informs the party receiving it that the instrument has been dishonored. Notice of dishonor of foreign bills of exchange: Sec. 3225. § 3144. A notice of dishonor may be given: 1. By delivering it to the party to be charged, personally at any place; or, 2. By delivering it to some person of discretion at the place of residence or business of such party, apparently acting for him; or, 3. By properly folding the notice, directing it to the party to be charged, at his place of residence, according to the best information that the person giving the notice can obtain, depositing it in the postoffice most conveniently accessible from the •27 NEGOTIABLE INSTRUMENTS. || 81«-Sl4f place where the presentment was made, and pay- ing the postage thereon. Notary's protest as evidence: See cases supra, and Polit. Code, sec. 795. Foreign bills of exchange, notice of dishonor, how given: See sec. 32.31. § 3145. In case of the death of a party lo whom notice of dishonor should otherwise be given, the notice must be given to one of his per- sonal representatives; or, if there are none, then to any member of his family who resided with him at his death; or, if there is none, then it must be mailed to his last place of residence, as prescribed by subdivision 3 of the last section. § 3146. A notice of dishonor sent to a party af- ter his death, but in ignorance thereof, and In good faith, is valid. § 3147. Notice of dishonor, when given by the holder of an instrument or his agent, otherwise than by mail, must be given on the day of dis- I honor, or on the next business day thereafter. ; § 3148. "When notice of dishonor is given by mail, it must be deposited in the postottice In tlm" for the first mail which closes after noon or tne first business day succeeding the dishonor, and I which leaves the place where the instrument wa« dishonored, for the place to which the notice should be sent. § 3149. When the holder of a negotiable In- |strument. at the time of its dishonor, is a mere agent for the owner, it is sufficient for him to igive notice to his principal in the same manner as (to an indorser, and his principal may givo notice |to any other party to be charged, as if he were (himself an indorser. And if an agent of the owner (employs a sub-agent, it is sufficient for oiwh sue- 1§ 3150-3155 NEGOTIABLE INSTRUMENTS. 628 oessive agent or sub-agent to give notice in like manner to his own principal. § 3150. Every party to a negotiable instru- ment, receiving notice of its dishonor, has the lil^e time thereafter to give similar notice to prior parties as the original holder had after its dis- honor. But this additional time is available only to the particular party entitled thereto. § 3151. A notice of the dishonor of a negotia- ble instrument, if valid in favor of the party giv- ing it, enures to the benefit of all other parties thereto whose right to give the like notice has not then been lost. ARTICLE VI. EXCUSE OP PRESENTMENT AND NOTICE. § 3155. Notice of dishonor, when excused. § 3156. Presentment and notice, when excused. § 3157. Same. S 3158. Delay, when excused. § 3159. Waiver of presentment and notice. ,^ 3160. Waiver of protect. § 3155. Notice of dishonor is excused: 1. When the party by whom it should be given cannot, with reasonable diligence, ascertain either the place of residence or business of the party to be charged; or, 2. When there is no postoffice communication between the town of the party by whom the notice should be given and the town in which the place of residence or business of the party to be charged is situated; or, 3. When the party to be charged is the same person who dishonors the instrument; or, 4. When the notice is waived by the party en- titled thereto. See sec. 3130, ante; sec. 3159, post. 629 NEGOTlAIiLE INSTKLMKNTS. || aiM-SlM Subd. 1. Keasouable diligence: See sec*. 3131, subd. G, wlierein pieseulmeiit is excu.se3 t seq. I Presentment to drawee in case of need: Sec. 1 188. § 3173. A bill of exchange may be drawn m ny number of parts, each part stating the exist- nce of the others, and all forming one set. Damages for nonpayment of foreign bill drawn 1 parts: See sec. 3234. § 3174. An agreement to draw a bill of ex- hange binds the drawer to execute it in three arts, if the other party to the agreement d«'>s )§ 3175. Presentment, acceptance, or payment, jf a single part in a set of a bill of exchange, is |ifficient for the whole. , Presentment for acceptance: See sec. 31S(;. I Presentment to joint drawees: See sec. 3187. §§ 3173-3177 NEGOTIABLE INSTRUMENTS. 632 § 3176. A bill of exchange is payable: 1. At the place where, by its terms, it is made payable; or, 2. If it specify no place of payment, then at the place to which it is addressed; or, 3. If it be not addressed to any place, then at the place of residence or business of the drawee, or wherever he may be found. If the drawee has no place of business, or if his place of business or residence [cannot] with rea- sonable diligence be ascertained, presentment for payment is excused, and the bill may be protested for nonpayment. [Amendment approved March . 30, 1874; Amendments 1873-4, p. 264. In effect^ July 1, 1874.] Negotiable instrument specifying place of pay- ment: See sees. 3130 et seq. § 3177, The rights and obligations of thei drawer of a bill of exchange are the same as those of the first indorser of any other negotiable in-i strument. Rights of indorser: See ante, sees. 3108 et seq., 3130 et seq., and 3141 et seq. Contract of indorser: Sec. 311 G. 133 NEGOTIABLE INSTRUMENTS. || iini.nH ARTICLE II. DAYS OF GRACE. § 3181. Days of grace. § 3181. Days of grace are not allowed. ARTICLE III. PRESENTMENT FOR ACCEPTANCE. 3185. When a bill may be presented. 3186. Presentment, how made. 3187. Presentment to joint drawees. 3188. When presentment to bo made to drawee In case of need. 3189. Presentment, when must be made. § 3185. At any time before a bill of excliaime is payable the holder may present it to the drawee 'or acceptance, and if acceptance is refused, the Dill is dishonored. I [ Acceptance, how made: Sees. 3193 et seq. ; Presentment in case of acceptance for honor: '?ecs. 3200, 3207. I § 3186. Presentment for acceptance must l)«' Qade in the following manner, as nearly as by >easonable dilijrence it is practicable: ! 1. The bill must be presented by the liolder or Ills a^ent; 1 2. It must be presented on a business day. and ivritliin reasonable hours; [ 3. It must be presented to the drawee, or. If he te absent from his plnce of residence or business. ;o some person havinj; charge thereof, or employed (herein: and. : 4. The drawee, on such presentment, mny post- ,tone his acceptance or refusal until the next day. f tlie drawee have no place of business, or if his §§ 3187-3193 NEGOTIABLE INSTRUMENTS. 634 place of business or residence cannot, with rea- sonable diligence, be ascertained, presentment for acceptance is excused, and the bill may be pro- tested for nonacceptance. [Amendment approved March 30, 1S74; Amendments 1873-4, p. 265. In effect July 1, 1874.] Presentment of part of set: See sec. 3175. Presentment for payment, generally: See sees. 3130 et seq. Presentment of bill of exchange for payment: See sees. 3211 et seq. § 3187. Presentment for acceptance to one of several joint drawees, and refusal by him, dis-'' penses with presentment to the others. § 3188. A bill of exchange which specifies a drawee in case of need, must be presented to him for acceptance or payment as the case may be,, before it can be treated as dishonored. Drawee in case of need: Sec. 3172. § 3189. When a bill of exchange is payable at a specified time after sight, the drawer and in- dorsers are exonerated if it is not presented for acceptance within ten days after the time which would suflice, with ordinary diligence, to forward it for acceptance, unless presentment is excused ARTICLE lY. ACCEPTANCE. § 3193. Acceptance, how made. § 3194. Holder entitled to acceptance on face of bill. § 3195. What acceptance sufficient with consent of holdei § 3196. Acceptance by separate instrument. § 3197. Promise to ^accept, when equivalent to acceptance § 3198. Cancellation of acceptance. § 3199. What is admitted by acceptance. § 3193. An acceptance of a bill must be mad" in writing, by the drawee or by an acceptor fo C5 NEGOTIADLE INSTRUMENTS. §| tlM-JlM jonor, and miiy be made by tUe accei>tor wrltlug iis name across the face of the bill, with or witli- )Ut other words. Acceptance for houor: See sec. 3203. § 3194. The holder of a bill of exchaiiKe. if en- litlod to an acceptance thereof, maj' treat the bill IS dishonored if the drawee refuses to write acr<»88 its face an unqualified acceptance. Acceptance on separate paper: See sees. 3104. J195. § 3195. The holder of a bill of exchange may. without prejudice to his ri;,^hts ajjainst prior par- ties, receive and treat as a suthcient acceptance: 1. An acceptance written upon any part of the ■3III, or upon a separate paper; 2. An acceptance qualified so far only as to malie the bill payable at a particular place within the city or town in which, if the acceptance was unqualified, it would be payable; or, 3. A refusal by the drawee to return the bill the holder after presentment, in which case thf ,)ill is payable immediately, without regard to its ;:erms. . Acceptance on separate paper: See, also, next »ection. ^ Acceptance, generally: Sec. 3193. I 1 § 3196. The acceptance of a bill of exchaujje. Sy a separate Instrument, binds the accei)tor tt> Sne, who, upon the faith thereof, has the bill for l''alue or other good consideration. ' § 3197. An unconditional promise. In writing, io accept a bill of exchange, is a sutficient accept- 'nce thereof, in favor of every person who upon he faith thereof has taken the bill for value or "ther good consideration. SS 3198-3204 NEGOTIABLE INSTRUMENTS. 63« § 3198. The acceptor of a bill of exchange may cancel his acceptance at any time before deliver- ing the bill to the holder, and before the holder has, with the consent of the acceptor, transferred j his title to another person who has given value for i it upon the faith of such acceptance. § 3199. The acceptance of a bill of exchange admits the signature of a drawer, but does not admit the signature of any indorser to be genuine. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 265. In effect July 1, 1874.] Genuineness of signature warranted by indorser: See sec. 3116. subd. 3. ARTICLE V. ACCEPTANCE OR PAYMENT FOR HONOR. § 3203. When bill may be accepted or paid for honor. § 3204. Holder of bill of exchange bound to accept payment) for honor. j § 3205. Acceptance for honor, how made. § 3206. How enforced. I § 3207. Notice of dishonor not excused by acceptance for' honor. [I § 3203. On the dishonor of a bill of exchange- by the drawee, and, in case of a foreign bill, after, it has been duly protested, it may be accepted or: paid by any person, for the honor of any party thereto. Drawee in case of need: See sec. 3172. Payment of foreign bill for honor: See sec. 3233. Acceptor for honor is in effect the maker of a promissory note: Sec. 3246. § 3204. The holder of a bill of exchange is not bound to allow it to be accepted for honor, bul is bound to accept payment for honor. Acceptance, how made: See sees. 3193 et seq Acceptance for honor, how made: Sec. 3205. 37 NEGOTIABLE INSTRUMENTS. {J i2X6iyn § 3205. An iiccoptor or payor for lumor ujumI vrite a memoraudum upon the bill, staling therelu or whose honor he accepts or pays, and niU8t :ive notice to such parties, with reasonable dlU- ence, of the fact of such acceptance or payment. lavinj; done so, he is entitled to reimbursement roni such parties, and from all parlies prior ta hem. ' Acceptance, how made {,'enerally: See sees. .'JllC t sea. Reimbursement. — In case of foreijjn bills of ex- han.sj:e. the one who pays for honor must declare the presence of a person authorized to make rotest for whose honor he pays the same: Sec 233. § 3206. A bill of exchange which has been ac- ipted for honor must be presented at its maturity the drawee for payment, and notice of its dis- onor bj' him must be given to the acceptor for onor, in like manner as to an indorser, after hich the acceptor for honor must pay the bill. Presentment for acceptance: See sec. 318G. Presentment of bill of exchange for payment: 56 sees. 3211 et sea. Presentment of negotiable instruments geueral- : Sees. 3130 et sea. Notice of dishonor of foreign bill: See sees. 322.'"» sea. Notice of dishonor generally: See sees. 3142 et q. S 3207. The acceptance of a bill of exchangi* r honor does not excuse the holder from glv- g notice of its dishonor by the drawee. Presentment of bill of exchange and notice, hen excused: See sees. 3218-3220. Excuse of presentment and notice generally: . 3155 et sea. Civ. Code— 54 §§ 32U-3213 NEGOTIABLE INSTRUMENTS. 638 Notice of dishonor: See sec. 3231 for the giving notice of protest, and sections 3142 et seq. for the manner of giving notice of dishonor generally. ARTICLE YI. PRESENTMENT FOR PAYMENT. S 3211. Presentment, when bill not accepted, where made. § 3212. Presentment of bill, payable at particular place. § 3213. Effect of delay in presentment, in certain cases. § 3214. Effect in other cases. § 3211. If a bill of exchange is by its terms payable at a particular place, and is not accepted on presentment, it must be presented at the same place for payment, when presentment for pay- ment is necessary. Presentment of negotiable instruments for pay- ment: See sees. 3130 et sea. Presentment for acceptance: See sees. 3186 et; sea. ' § 3212. A bill of exchange, accepted payable at a particular place, must be presented at that place for payment, when presentment for payment is necessary, and need not be presented elsewhere. Place of payment, presentment at: See sec. 3131, subd. 3. § 3213. If a bill of exchange, payable at sight or on demand, without interest, is not duly pre- sented for payment within ten days after the time in which it could, with reasonable diligence, be transmitted to the proper place for such pre- sentment, the drawer and indorsers are exoner- ated, unless such presentment is excused. See, also, generally sees. 3131, 3155. Apparent maturity of bill of exchange: See sec. 3134, ante. 639 NEGOTIABLE INSTRUMENTS. H llli-t2» § 3214. Mere delay in presentlu^ a bill of ex- change payable with interest, at sight or on de- mand, does not exonerate any party thereto. Delay, when excused: See sec. 3158, ante, and sec. 3219. Dost. ARTICLE VII. EXCUSE OF PRESENTMENT AND NOTICE. S 3218. Presentment, when excused. I 3219. Delay, when excused. § 3220. Presentment and notice, when excused. § 3218. The presentment of a bill of exclianpc ;for acceptance is excused if the drawee has not (Capacity to accept it. 1 Excuse of presentment and notice, generally: See sees. 3155 et seq., ante. Delay in presentment of check: Sec. 3255. § 3219. Delay In the presentment of a bill of exchange for acceptance is excused, when caused iyy circumstances over which the holder has no ?ontrol. Delay, when excused: See sees. 3158, 3214. ante. § 3220. Presentment of a bill of exchange for icceptance or payment, and notice of its dishonor, 'ire excused as to the drawer, if he forbids the ilrawee to accept, or the acceptor to pay the bill; ,)r, if, at the time of drawing, he had no reason [o believe that the drawee would accept or pay the !iame. §§ 3224-3227 NEGOTIABLE INSTRUMENTS. 64( ARTICLE YIII. FOREIGN BILLS. § 3224. Definitions. § 3225. Protest necessary. § 3226. Protest, by whom made. § 3227. Protest, how made. § 3228. Protest, where made. § 3229. Protest, when to be made. § 3230. Protest, when excused. § 3231. Notice of protest, how given. § 3232. Waiver of protest. § 3233. Declaration before payment for honor. § 3234. Damages allowed on dishonor of foreign bill. I 3235. Rate of damages. § 3236. Interest on amount of protested bill. § 3237. Damages, how estimated. § 3238. Same. § 3224, An inland bill of exchange is on« drawn and payable within this State. All others are foreign. Form and interpretation of bills of exchange See see. 3171. § 3225. Notice of the dishonor of a foreigi bill of exchange can be given only by notice of iti protest. Dishonor of negotiable instruments generally! See sees. 3141 et seq., ante. Waiver of protest does not waive presentmem and notice in the case of a foreign bill of ex change: Sec. 3160, ante. § 3226. Protest must be made by a notary pub lie. if with reasonable diligence one can be ob tained; and if not, then by any reputable person in the presence of two witnesses. § 3227. Protest must be made by an instm ment in writing, giving a literal copy of the bll of exchange, with all that is written thereon, oi Gil NEGOTIABLE INSTRUMENTS. anuexiiijc the orij,'iual; statiu^ the preHontoieni, and the maimer iu which it was made; the pres- ence or absence of the drawee or acceptor, an ihe case may be; the refusal to accept or t(. pay, or the inability of the drawee to j;ive a binn>entment, or on the next business day; but It nay be written out at any time thereafter. § 3230. The want of a protest of a foreign bllJ f exchange, or delay in making the same. Is e\- us.mI in like eases with the want or delay of i)re- eiiinient. l.xcuse of presentment and notice: See 8«vs. L'ls ut sea., 321^. s' 3231. Notice of protest must be given in ihv line manner as notice of dishonor, except that It i;iy be given by the notary who makes the pro- fiSt. ! Notice of dishonor, how given: See ante, sih*8. 1142 et sea. [Notice of dishonor, by whom given: Sec. :n 12. [Qte. |§ 3232. If a foreign bill of exchange on its face • aives protest, notice of dishonor may be given |» any party thereto, in like manner as of an In- ' nd bill; except that if any indorser of such a 11 expressly requires protest to be made, by §§ 3233-3235 NEGOTIABLE INSTRUMENTS. 642 a direction written on the bill at or before his indorsement, protest must be made, and notice thereof given to him and to all subsequent in- dorsers. Notice of dishonor: See sees. 3142 et seq. ^Yaiyer of notice: See sec. 3155, subd. 4. § 3233. One who pays a foreign bill of ex- change for honor must declare, before payment, in the presence of a person authorized to make pro- test, for whose honor he pays the same, in order to entitle him to reimbursement. Payment for honor: See sec. 3203. § 3234. Damages are allowed as hereinafter prescribed, as a full compensation for interest ac- crued before notice of dishonor, re-exchange, ex- penses, and all other damages, in favor of holders for value only, upon bills of exchange drawn or negotiated within this State, and protested for nonacceptance or nonpayment. § 3235. Damages are allowed under the last section upon bills drawn upon any person: 1. If drawn upon any person in this State, two dollars upon each one hundred dollars of the prin- cipal sum specified in the bill; 2. If drawn upon any person out of this State, but in any of the other States west of the Rocky Mountains, five dollars upon each hundred dollars of the principal sum specified in the bill; 3. If drawn upon any person in any of the United States east of the Rocky Mountains, ten dollars upon each hundred dollars of the principal sum specified in the bill; 4. If drawn upon any person in any place in a foreign country, fifteen dollars upon each hun- dred dollars of the principal sum specified in the bill. 643 NEGOTIABLE INSTRUMENTS. If UM-SMI § 3236. From the time of notice or dishonor and demand of payment, lawful interest mu«t be allowed upon tlie agj,'re«ate amount of ilu' princi- pal sum specified in the bill, and the damaKe* mentioned in the preceding section. § 3237. If the amount of a protested bill of ex- change is expressed in money of the United States, damages are estimated upon such amount without regard to the rale of exchange. § 3238. If the amount of a protested bill of ex- change is expressed in foreign money, damages are estimated upon the value of a similar bill at the time of protest, in the place nearest to the place where the bill was negotiated and where such bills are currently sold. CHAPTER III. PROMISSORY NOTES. S 3244. Promissory note, what. § 3245. Certain instruments promissory notes. S 3246. Bill of exchange, when converted Into a note. § 3247. Certain sections applicable to notes. 8 3248. Effect of delay In presentment. § 3244. A promissory note is an Instrument, negotiable in form, whereby the signer promises to pay a specified sum of money. Place of payment not specified: See ante, sec. 8100. Interpretation of negotiable instruments gener ally: See sees. 3099 et sea. § 3245. An Instrument In the form of a bill of lexehange, but drawn upon and accepted by the 'drawer himself, is to be deemed a promissory 'note. Negotiable instrument payable to order of uialver: See ante. sec. 3102. §S 3246-3255 NEGOTIABLE INSTRUMENTS. S44 § 3246. A bill of exchange, if accepted, with the cousent of the owner, by a person other than the drawee, or an acceptor for honor, becomes in effect the promissory note of such person, and all prior parties thereto are exonerated. Acceptor for honor: See sees. 3203 et seq. § 3247. Chapter I. of this title, and sections 3181 and 3214 of this Code, apply to promissory notes. Chapter I of this title: See sees. 3086-3165. § 3248. If a promissory note, payable on de- mand, or at sight, without interest, is not duly presented for payment within six months from its date, the indorsers thereof are exonerated, un- less such presentment is excused. Apparent maturity of a promissory note: See sec. 3135. Presentment, when excused: See, generally, sees. 3155 et sea. CHAPTER IV. CHECKS. § 3254. Check, what. § 3255. Rules applicable to checks. § 3254. A checlv is a bill of exchange drawn upon a bank or banl^er, or a person described as sucli upon the face thereof, and payable on de- mand, without interest. § 3255. A checlv is subject to all the provisions of this Code concerning bills of exchange, except that: 1. The drawer and indorsers are exonerated by delay in presentment, only to the extent of the in- jury which they suffer thereby; 2. An indorsee, after its apparent maturity, but J 645 GENERAL PROVISIONS. litzci without actual notice of its dishonor, ac-qulre« a title equal to that of an indorsee before such period. Delay in presentment of bills of exchanse- See sees. 3Ln8-3220. Indorsee in due course: Sec. 3123, ante. CHAPTER V. BONDS, BANK NOTES, AND CERTIFICATES OF DE- POSIT. § 3261. Bank note negotiable after payment. § 3202. Title acquired by Indorsee. (Repealed.) 5 3261. A bank note remains neprotlable. even after it has been paid by the inalcer. § 3262. [Repealed Mnrch 30, 1874: Amend- ments 1873-4, 265. In effect July 1, 1874.] TITLE XVI. GENERAL PROVISIONS. § 3268. Parties may waive provisions of Code. § 3268. Except where it is otherwise declared, the provisions of the forejroinc: fifteen titles of this part, in respect to the rijrhts and obligations of parties to contracts, are subordinate to the inten- tion of the parties, when ascertained In the man- ner prescribed by the Chapter on the Interpreta- tion of Contracts: and the benefit thereof may be waived by any party entitled thereto, unless such 'Waiver would be ajjainst public policy. Interpretation of contracts: See ante. sec. K-'C. et seq. i-l ^ DIVISION FOURTH. Part I. Relief, §§ 3274-3423. II. Special RL4ations of Debtor and Creditor, §§ 3429-3473. III. Nuisance, §§ 3479-3503. IV. Maxims of Jurisprudence, §§ 3509-3543. PAKT I. RELIEF. I'itle I. Relief in CJenoral. sees. 3274-:{2Tr.. II. Compensatory Relief, sees. 3281-3300. III. Specific and rrevcntive Relief, sees. 3300- 3423. TITLE I. RELIEF IN GENERAL. § 3274. Species of relief. § 3275. Relief in case of forfeiture. § 3274. As a general rule, compensation Is the relief or remedy provided by the law of this State for the violation of private rij^hts. and the means of securini; their observance; and specific and preventive relief may be jxiven in no otlicr eases than those specified in this part of the Civil Code. § 3275. "Whenever, by the terms of an obliga- tion, a party thereto incurs a forfeiture, or a h>s.s in the nature of a forfeiture, by reason of his fail- ure to comply with its provisious, he may be re- lUeved therefrom, upon malviufr full compensation • to the other party, except in case of a jjrossly ne^;- llgent, willful, or fraudulent brea«li "f ilmv Civ. Code— 55 § 3281 COMPENSATORY RELIEF, 6c0 TITLE II. COMPENSATORY RELIEF. Chapter I. Damages in General, sees. 3281-3294. II. Measure of Damages, sees. 3300-33G0. CHAPTER I. DAMAGES IN GENERAL. Article I. General Principles, §§ 3281-3283. II. Interest as Damages, §§ 3287-3290. III. Exemplary Damages, § 3294. ARTICLE I. GENERAL PRINCIPLES. § 3281. Person suffering detriment may recover damages. § 3282. Detriment, what. § 3283. Injuries resulting or probable after suit brought. § 3281. Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation; therefor in money, which is called damages. Note.- -As by the Political Code, 3274, in judg- ments and executions the amount thereof must be stated, as near as may be, in dollars and cents, re- jecting fractions, it is no doubt proper to apply the same rule to the claim for damages in the complaint. Exemplary damages: See sec. 8294. Damages are exclusive of exemplary damages and interes' except where those are expressly mentioned: Sec. 3357. post. See sec. 657. also. Damages must be reasonable: Sec. 3351. tiOl COMPENSATORY RELIEF. r.imit of recovery.— No person can riTover a KK'iiter amoimt in daniajres for the breach of an (.blij^ation than he could have k'alned by the full Ii.iformance thereof ou both sides, excc'-pt In th«' cises specified in tlie artich^s on exemphiry dam- nu'cs and penal daiuajres, and in sees. ?/M^ .Tt;'.* ;;;;K), and 3358, post. Damages for torts: Sees. 3333 et se.i. I)amaj;es for brearh of contract: Sees. ;i3(ju ot i 3282. Detriment is a loss or harm sufrere; 3287. Every i^erson who is entitled to recover (l.iinapes certain, or capable of bein.u made certain by calculation, and the riirlit to recover which is vested in him upon a particular day. is eutithfl nlso to recover interest thereon fnun that day. ex- (•ci)t during: such time as the debtor is prev«'Mtey the covenantee in extinguisliing either the principal or interest tliereof, not exceeding in th«' former case a proportion of the price paid to the grnutor equivalent to the relative value at the time of the grant of the property affected by the breach, as compared with the whole, or, in the latter case, nterest on a like amount. § 3306. The detriment caused by tlie breach )f an agreement to convey an estate in real prop- lirty is deemed to be the price paid, and the ex- )euses properly incurred in examining the title nd preparing the necessary papers, with interest hereon; but adding thereto, in case of bad faith. he difference between the price agreed to be paid nd the value of the estate agreed to be conveyed, t the time of the breach, and the expenses prop- rly incurred in preparing to enter upon tlie l.-iiid. § 3307. The detriment caused by the bn\'ich of a agreement to purchase an estate in real prop- irty is deemed to be the excess, if any, of the Qiount which would have been due to the soller, Qder the contract, over the value of the property } him. S 3308. The detriment caused by the breach of seller's agreement to deliver personal property. e price of which has not been fully paid in ad- tnce, is deemed to be the excess, if any. of the Jue of the property to the buyer, over the §§ 3309-3313 COMPENSATORY RELIEF. 666 amount which would have been due to the seller under the contract, if it had been fulfilled. § 3309. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has been fully paid to him in advance, is deemed to be the same as in case of wrongful conversion. Conversion, measure of damages for: Sec. 3336. § 3310. The detriment caused by the breach of a buyer s agreement to accept and pay for per- sonal property, the title of which is vested in him, is deemed to be the contract price. § 3311. The detriment caused by the breach of a buyer's agreement to accept and pay for per- sonal property, the title to which is not vested in him, is deemed to be: ■ 1. If the property has been resold, pursuant to' section 3049, the excess, if any, of the amount due from the buyer, under the contract, over the net proceeds of the resale; or. i 2. If the property has not been resold in the' manner prescribed by section 3049, the excess, if* any, of the amount due from the buyer, under' the contract, over the value to the seller, together with the excess, if any, of the expenses properly) incurred in carrying the property to marL:et, over those which would have been incurred for thf carriage thereof, if the buyer had accepted it. § 3312. The detriment caused by the breach o; a warranty of the title of personal property sold i; deemed to be the value thereof to the buyer, whei he is deprived of its possession, together with an; costs which he has become liable to pay in an ac tion brought for the property by the true owner § 3313. The detriment caused by the breach o 157 COMPENSATORY HELIKF. g) mi-mi I warranty of the quality of i.crs..nal pn.iMTiy Ih leemed to be the excess, if any. of tlio value vhicli the property would have had at the time which the warranty referred, if It had l>een omplied with, over its actual value at that time. § 3314. The detriment caused by the breach of . wjirranty of the fitness of an article of personal »roperty for a particular purpose Is deemed to Im- hat which is defined l)y the last section. toj;ether 7ith a fair compensation for the loss incurred by .u efl'ort in sood faith to use it for such pur- 069. § 3315. The detriment caused by the breach of 1 carrier's oblij^ation to accept frei^rht. messa^'es. r passengers is deemed to be the dilTerence be- i.veen the amount which he had a right to charge )r the carriage and the amount which it would [e necessary to pay for the same service when It ught to be performed. Obligation to receive freight: Sec. 2109. § 3316. The detriment caused by the breach of carrier's obligation to deliver freight, where he 18 not converted it to his own u.se, is deemed be the value thereof at the place and on the y at which it should have been delivered, de- cting the freightage to which he would have en entitled if he had completed the delivery. Delivery of property by carrier: See ante. sees. 18, 2119. stoppage in transitu: See ante, sees. aoTO et seq. 3317. The detriment caused by a carrier's de- In the delivery of freight is deemed to be the )reciation in the intrinsic value of the freight •ing the delay, and also the depreciation. If any. the marl^et value thereof, otherwise than by (son of a depreciation in its intrinsic v:ilue. ai §§ 3318-3333 COMPENSATORY RELIEF. 658 the place where it ought to have been delivered, and between the day at which it ought to have been delivered and the day of its actual delivery. Carrier's liability for delay: See ante, sec. 2196. § 3318. The detriment caused by the breach of a warranty of an agent's authority is deemed to be the amount which could have been recovered and collected from his principal if the warranty had been complied with, and the reasonable ex- penses of legal proceedings taken, in good faith, to enforce the act of the agent against his prin- cipal. Warranty of authority by one assuming to act as agent: See ante, sec. 2342. § 3319. The damages for the breach of a prom- ise of marriage rest in the sound discretion of the jury. ARTICLE II. DAMAGES FOR WRONGS. § 3333. Breach of obligation other than contract. § 3334. Wrongful occupation of real property. § 3335. Willful holding over. § 3333. Conversion of personal property. § 3337. Same. § 3338. Damages of lienor. § 3339. Seduction. § 3340. Injuries to animals. § 3341. Same. § 3333. For the breach of an obligation not arising from contract, the measure of damages, ex- cept where otherwise expressly provided by this Code, is the amount which will compensate tot all the detriment proximately caused thereby,; whether it could have been anticipated or not. Sec. 1840, ante. Officer seizing mortgaged chattel: See sec. 659 COMPENSATORY RELIEF. ,, ..,, -j^;. § 3334. The dotrimeut caused by the \vmiij;ful occupaliou of real property, in cases not eiuhra6ed iu sections 33^J5, l\l'A4, and '6^4') of this ('<> §§ 3346-3348 COMPENSATORY RELIEF. 662 § 3346. For wrongful injuries to timber, trees, or underwood upon the land of another, or re- moval thereof, the measure of damages is three times such a sum as would compensate for the ac- tual detriment, except where the trespass was casual and involuntary, or committed under the belief that the land belonged to the trespasser, or where the wood was taken by the authority of highway officers for the purposes of a highway; in which cases the damages are a sum equal to the actual detriment. Trespass for cutting down and carrying away trees: See, also, sec. 735, Code Civ. Proc. § 3347. If any person slays or permanently disables another person in a duel in this State, the slayer must provide for the maintenance of the widow or wife of the person slain or perma- nently disabled, and for the minor children, iE such manner and at such cost, either by aggre- gate compensation in damages to each, or by s monthly, quarterly, or annual allowance, to b( determined by the court. Duels and Challenges: See Penal Code, sees. 225 232. Note.— Section is based on Stats. 1855, p. 152 Article 20, section 2, of our State constitution, pro; hibits any one who fights, or acts as second, o: knowingly aids or assists one who fights a due. or sends a challenge to fight a duel, from holding any office of profit or trust: See, also, Pen. Code sees. 225. 232. § 3348. If any person slays or permanent], disables another person in a duel in this State, th slayer is liable for and must pay all debts of th person slain or permanently disabled. 63 COMPENSATORY RELIEF. ;• ARTICLE IV. GENERAL PROVISIONS. 3353. Value, how estimated In favor of seller. 3354. Value, how estimated In favor of buyer. 3355. Property of peculiar value. 3356. Value of thing in action. 3357. Damages allowed In this chapter, exclu«lve of others. 335S. Limitation of damages. 3359. Damages to be reasonable. 3360. Nominal damages. § 3353. In estimating: damages, the valuo of froperty to a seller tliereof Is deemed to l>e the -rice which he could have obtained therefor in be marlcet nearest to the place at which it should are been accepted by the buyer, and at such Ime after the l^reach of the contract as would are sufficed, with reasonable dili.Lrence, for the ?ller to effect a resale. § 3354. In estimatinc: daraapres. except a.^ i>n>- Ided by sections 3355 and 3350, the valuo of proj)- "ty, to a buyer or owner thereof, deprived of Its ossession, is deemed to be the price at which he jlgrht have bought an equivalent thinj; In the arket nearest to the place where the property rjht to have been put into his possession, and at ' li time after the breach of duty upon which s riirht to damages is founded as would suffice. iili n^asonable dili.2:ence. for him to make such a u-rhase. ; 3355, Where certain property has a peculiar hi'' to a person recovering damacres for depriva- ' n tliereof, or injury thereto, that may be deem- ' T(^ be its value atrainst one who had notice t Mr. §§ 3356-3360 COMPENSATORY RELIEF. 664 § 3356. For the purpose of estimating dam- ages, tlie value of an instrument in writing is pre- sumed to be equal to that of the property to which it entitles its owner. [Amendment approved March 30, 1874; Amendments 1873-4, p. 266. In effect July 1, 1874.] § 3357. The damages prescribed by this chap- ter are exclusive of exemplary damages and in- terest, except where those are expressly men- tioned. Exemplary damages: See sec. 3294. — Interest, see sees. 3287-3290. § 3358. Notwithstanding the provisions of this chapter, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases specified in the articles on Exemplary Damages and Penal Damages, and in sections 3319, 3339, and 3340. Exemplary damages: Sec. 3294. Penal damages: Sees. 3344-3348. § 3359. Damages must, in all cases, be reason- able, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial jus-; tice, no more than reasonable damages can be recovered. Liquidated damages and penalty: See sees. 1670 1671, ante. § 3360. When a breach of duty has caused m appreciable detriment to the party affected, h( may yet recover nominal damages. 566 SPECIFIC AND PREVENTIVE UEUEF. ;. TITLK III. SPECIFIC AND PREVENTIVE RELIEF. Chapter I. General rriiieiples, §§ .'i.'lOt; 3:{t;i>. * II. Speeific Kcliof. §§ 337r)-:i414. III. Preventive Relief, §§ .'MlKt-.'M'j:'.. CUAPTEK I, GENERAL PRINCIPLES. { 3366. Specific relief, &c., when allowed. S 3367. Specific relief, how given. \ 336S. Preventive relief, how given, j 3369. Not to enforce penalty, &c. § 3366. Specific or preventive relief may be ?iveu in the cases specified in this title and in no 'others. ' Possession of real property: Sees. 3375 et seq. j Possession of personal property: Sees. 3379 et i»eq. j Specific performance of oblijiations: Sees. 3384 t seq. Revision of contracts: Sees. 3300 et seq. Rescission of contracts: Sees. 34(K) et seq. Cancellation of instruments: Sees. 3412 et seq. I Injunctions: See sees. 4320 et seq. § 3367. Specific relief is jjiven: 1. By takinc: possession of a thint:. and dclivcr- ig it to a claimant; 2. By compelling: a party himself to do tliat hich oujrht to be done; or, 13. By declarin.c: and determinini; the riirhts of [irties, otherwise than by an award of damages, i^^ote.— What is known as the specific-contract act I this State (embodied in section ('.('.7 [sec 2. iry to prevent u multiplicity of such proctM^l- igs; 2. To stay proceedings in a court of the rnli^nl t«tes; 3. To stay proceedinjrs In anotlier State upon a idgment of a court of that State; 4. To prevent the execution of a public statute y officers of the law, for the public benefit; 5. To prevent the breach of a contnict, the pt-r- jrniance of wiiich would not be specifically cn- Drced ; 6. To prevent the exercise of a public or private ffice. in a lawful manner, by the person in poH- BKsion; 7. To prevent a lepjislative act by a municipal Drporation. [Amendment approved March 3(>, 874; Amendments 1873-4, 207. In effect July 1. S74.] I PART 11. SPECIAL RELATIONS OF DEBTOR AND CREDITOR. Title I. General Trineiples, §§ 3429-3433. II. P'raudiilent Instruments and Transfers, §§ 3439-3442. III. Assignments for the Benefit of Credit- ors, §§ 3449-3473. TITLE I. GENERAL PRINCIPLES. § 3429. Who is a debtor. § 3430. Who is a creditor. § 3431. Contracts of debtor are valid. § 3432. Payments in preference. § 3433. Relative rights of different creditors. § 3429. A debtor, within the meaning of this title, is one who, by reason of an existing obliga- tion, is or may become liable to pay money to an- other, whether such liability is certain or contin- gent. § 3430. A creditor, within the meaning of this title, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money. § 3431. In the absence of fraud, every contract of a debtor is valid against all his creditors, exist- ,677 FRAUDULENT INSTRUMENTS, ETC. SS Ui2-t4t» ing or subsequent, who h;ive not acquired a lien on the property affected by such contract. § 3432. A debtor may pay one creditor in pref- erence to another, or may give to one creditor se- curity for the payment of his demand in prefer- ence to another. Assign preferring creditor: See sec. 3457, subd. 1. § 3433. Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to some, but not all of them, the latter may require the former to seelv satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to com- plete satisfaction, and without doing injustice to third persons. 1 TITLE II. r. FRAUDULENT INSTRUMENTS AND TRANSFERS. i§ 3439. Transfers, &c., with intent to defraud creditors. \i 3440. Certain transfers presumed fraudulent. § 3441. Creditor's right must be judicially ascertained. i§ 3442. Question of fraud, how determined. § 3439. Every transfer of property or charge thereon made, every obligation incurred, and every •judicial proceeding talten, with intent to delay or defraud any creditor or other person of liis de- 'mands, is void against all creditors of the debtor, ,and their successors in interest, and against any person upon whom the estate of the debtor de- volves in trust for the benefit of others tlian the 'debtor. ' Arrest: See Code Civ. Troc, sec. 470. ' Fraudulent conveyance: See Teual Code. sees. ir>4. 531. §§ 3440-3441 FRAUDULENT INSTRUMENTS, ETC. 678 § 3440. Every transfer of personal property, other than a thing in action, or a ship or cargo at sea or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclu- sively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate de- volves in trust for the benefit of others than him- self, and against purchasers or encumbrancers in good faith subsequent to the transfer; provided, however, that the provisions of this section shall not apply to the transfers of wines in the wineries or wine cellars of the makers or owners thereof, or other persons having possession, care, and control of the same, and the pipes, casks, and tanks in which the said wines are contained, which transfers shall be made in writing, and cer- tified and acknowledged and verified in the same form as provided for chattel mortgages and whict shall be recorded in the book of miscellaneous records in the office of the county recorder of thf coimty in which the same are situated. [Amend ment approved March 12, 1895; Stats. 1895, 47. Ii effect in sixty days.] Chattel mortgage.— Change of possession no necessary; it must be recorded: Sec. 2959, ante. Chattel mortgage, when void as to creditors an( purchasers: Sec. 2957. § 3441. A creditor can avoid the act or obliga tion of his debtor for fraud only where the fran obstructs the enforcement, by legal process, of hi 679 FRAUDULENT INSTRUMENTS. ETC. | t4il rij;lit to take the i)roi)erty alTcctcd hy il,.- umi.si.t or oblij^.'itioii. § 3442. Ill all cases arising' under Htn-iWrn twelve huiidred and tweuly-seveu, or undrr ihu provisioiis of this title, except as othorwiso pn»- vided ill section thirty-four hundred and forty, the question of fraudulent intent is one of fact and not of law; nor can any transfer or charjje be adjudjred fraudulent solely on the ;;round that It was not made for a valuable consideration: pro- pVided, however, that any transfer or incumbrance ot property made or ffiven voluntarily, or without \i valuable consideration, by a party while insol- i7ent or in contemplation of insolvency, shall be j^raudulent, and void as to existinj? creditors. I'. Amendment approved March 2(1, 18!)."); Stats. L.1805, ir.4. In eflect in sixty days.) §3449 ASSIGNMENTS. 680 TITLE III. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. § 3449. When debtor may execute assignment. § 3450. Insolvency, what. § 3451. Certain transfers not affected. § 3452. What debts may be secured. § 3453. What preferences may be given. (Repealed.) § 3454. Preference must be absolute. (Repealed.) § 3455. Certain rights not affected by preferences in assign- ment. (Repealed.) § 3456. Joint and separate debts. (Repealed.) § 3457. Assignment, when void. § 3458. The instrument of assignment. § 3459. Compliance with provisions of last section necessary to validity of assignment. § 3460. Assignee takes, subject to rights of third parties. § 3461. Inventory required. § 3462, Verification of inventory. § 3463. Recording assignment and filing inventory. § 3464. Same. § 3465. Effect of omitting to record. § 3466. Assignment of real property. § 3467. Bond of assignees. § 3468. Conditions of disposal and conversion. § 3439. Accountings. § 3470. Property exempt. § 3471. Compensation. § 3472. Assignees protected for acts done in good faith. § 3473. Assent of creditor necessary to modification of as- signment. § 3449. An insolvent debtor may in good faith execute an assignment of property in trust for the satisfaction of his creditors, in conformity to the provisions of thiis cliapter; subject, however, to the provisions of this Code relative to trusts and fraudulent transfers, and to the restrictions im- posed by law upon assignments by special part- nerships, by corporations, or by other specific classes or persons. Every such assignment shall contain a list of the names of the creditors of the assignor, and their places of residence and amounts of their respective demands, and the amounts and nature of any security therefor, and 681 ASSIGNMENTS. | }44f shall, subject to the other provisions of this sec- tiou, be made to the sheriff of the county, or city and couuty, wherein the assignor resides, If the assij?nor resides within this State; or In case the assiiruor resides out of this State, then to the sher- iff of the county, or city and county, whertMii the pmperty assigned, or some of it, is situated; but when the assignor resides out of the State, an as- signment made as herein provided may, by Its terms, transfer any property of the assignor In this State. The sheriff shall forthwith take pos- ijession of all the property so assigned to him, and (keep the same till delivered by him. as herein- fafter provided. When the assignment has been (made, as herein provided, the sheriff shall Immedi- Utely, by mail, notify the creditors named in the issignmeut, at their places of residence as given therein, to meet at his ottice on a day and hour ;o be appointed by him. of not less than eiglit nor nore than ten days from the date of the delivery i)f the assignment to him, for the purpose of elect- ing one or more assignees, as they may deter- mine, in the place and stead of the said sheriff II 'he premises, and shall also publish a notice oi 'uch meeting, and the purpose thereof, at least I nee before such meeting, in some newspaper pub- ished in his county, or city and county. The no- ice so to be mailed shall also contain a statement f tlie amount of the demand of the creditor, and It' amount and nature of any security therefor, as r forth in the assignment: and if any creditor i.ill not find the amount of his claim to be cor- 'ctly so stated, he may file with said sheriff. r or before such meeting, a statement, under itli, of his demand, and such statement shall, such statement is filed, the stattMuent of nount as set forth in the assignment shall be § 3449 ASSIGNMENTS. 682 accepted by the sheriff as correct. No creditor having a mortgage or pledge of real or personal property of the debtor, or lien thereon, for secur- ing the payment of a debt owing to him from the debtor, shall be allowed to vote any part of his claim at such meeting of creditors, unless he shall have first conveyed, released, or delivered up his said security to said sheriff, for the benefit of all creditors of said assignor. At such meeting the sheriff shall preside, and a majority in amount of demands present or represented by proxy shall control all questions and decisions. The creditors may adjourn such meeting from time to time, and may vote on all questions either in person or by proxy signed and acknowledged before any officer authorized to talie acknowledgments, and filed with the sheriff. At such a meeting, or any ad- journment thereof, the creditors may elect one or more assignees from their own number, in the place and stead of the sheriff, and the person or persons so elected shall afterwards be the as- signee or assignees under the provisions of this title; and the sheriff, by transfer in writing, aclvuowledged as required by sec- tion three thousand four hundred and fifty- eight, shall at once assign to such elected assignee or assignees, upon the trusts in this title provided, all the property so assigned to him, and deliver possession thereof. All recitals in such ■ assignment by said sheriff of notices of such meet- 1 ing, and the holding thereof, and of the due elec- tion of such assignee or assignees, shall be prima facie proof of the facts recited. The sheriff shall, before the delivery of such assignment, be paid the expenses incurred by him, and fees in such amount as would by law be collectible if the prop- erty assigned had been levied upon and safely kept under attachment. Thereupon, and after the record of such last named assignment, as in this 683 ASSIGNMENTS. || t460l4tt title provided, siuli eUcted assij;inM' or asKli;in^.« shall take, and hold, and dispose of nil Huch prop- erty and its proceeds, upon the trusts and condi- tions and for the purposes in this title provided. [Amendment approved March 26, lSl>r>; Stati. ;18yr», ^2. In effect in sixty days.) i See sec. 2430, subd. 1, ante; sec. 3473, post. i Insolvency act: See Code Civ. Proc, Appendix, pp. 817 et seq. ? 3450. A debtor is insolvent, within the ni«-uu- ' 3451. The provisions of this title do not pre- t lit a person residing in another State or coun- ,ry from makinj^: there, in good faith, and without ntent to evade the laws of this State, a transfer )f property situated within it; but such person annot make a general assignment of property '.ituated in this State for the satisfaction of all his i-reditors, except as in this title provided; nor do (he provisions of this title affect the power of a •terson, although insolvent, and whether residing Tithin or without this State, to transfer property a this State, in good faith, to a particular credlt- r. for the purpose of paying or securing the whole r a part of a debt owing to such cretiitor. whetli- r in his own right or otherwise. [Amendment l>I)roved March 7, 1889; Stats. 1889, 82. In ef- ■ignor which he might lawfully p.iv. wh.Mh.T isolute or contingent. § 3453. [Repealed March 30, 1874; Amend- cnts 1873-4, 207. In effect .July 1. 1S74.] §§ 3454-3458 ASSIGNMENTS. 684 § 3454. [Repealed March 30, 1874; Ameno ments 1ST3-4, 267. In effect July 1, 1874.] § 3455. [Repealed March 30, 1874; Amend- ments 1873-4, 207. In effect July 1, 1874.] § 3456. [Repealed March 30, 1874; Amend- ments, 1873-4, 267. In effect July 1, 1874,] § 3457. An assignment for the benefit of credit- ors is void against any creditor of the assignor not assenting thereto, in the following cases: 1. If it give a preference of one debt or class of debts over another; , 2. If it tend to coerce any creditor to release j or compromise his demand; \ 3. If it provide for the payment of any claim ! known to the assignor to be false or fraudulent, ' or for the payment of more upon any claim than , is known to be justly due from the assignor; ■ 4. If it reserve any interest in the assigned j property, or in any part thereof, to the assignor, .' or for his benefit before all his existing debts are ' paid; 5. If it confer upon the assignee any power which, if exercised, might prevent or delay the Immediate conversion of the assigned property to the purposes of the trust; 6. If it exempt him from liability for neglect of duty or misconduct. [Amendment approved March 30. 1874: Amendments 1873-4, 267. In ef- fect July 1, 1874.] Assignment, when void: Subd. 1. Preferences: See sec. 3432. Preferences by special partnerships: See sec. 2496. § 3458. An assignment for the benefit of cred- itors must be in writing, subscribed by the as- signor, or by his a^ent thereto authorized in writ- ing, and the transfer by the sheriff must also be in writing, subscribed by the sheriff in his oflBcial 685 ASSIGNMENTS. H Ht»l4€l capacity. Both such assignment and kucU tranji- fer must be acknowUd^^ed, or i)n»vt*d and cerlllltHl. in the mode prescribed by the chapter on re<'onl- inj; transfers of real property, and be rec<»rM.mi Bent is made for the benefit of creditors, the as- rtgnor must malce and file, in the manner prescrib (d by section 3463, a full and true inventory, lowing; 1. All the creditors of the assignor; 2. The place of residence of each credit «»r. if nown to the assignor; or if not known, that fact ust be stated; 3. The sum owing to eacli creditor anl filed with the county recorder of li<- county in which the assij;nor resided at the Intc of the assij;nment; or, if he did not then rt*- idt' in this State, with the recorder of the county II which his principal place of business was then iniated; or if he had not then a residence or place f business in this State, with the recorder of the oimty in which the principal part of tlie nssi^jucd inperty was then situated. i 3464. If an assijjnment for tiie bonctit of rcditors is executed by more than one assignor. may be recorded, and a copy of the inventory. ■quired by section 3401, may be filed with the re- • idor of the countj' in which any of the assignors sided at its date, or in which any of them, not itn residinjr in this State, had then a plnco of iisiuess. ^ 3465. An assijjnment for the benefit of cred- its is void ajiainst creditors of the assi;rnor and r.iinst purchasers, and encumbrnncers In pmA itli, and for value, unless it is recorded as pn>- «lcd in this title, and unless either the Inven- yy rerjuired by section 84(11, or the Inventory n»- lired of the assift:nee or assiirnees by section :U«2. filed in the manner providtnl in tills title and ithin tlie time desijrnated. fAmendnnMit njv oved March 7, 1889; Stats. 18S9. 83. In ofTwl irch 7. 1889.] 3466. Where an assi;;ninent for the bcueflt ' creditors embraces real property. It la Bubject §§ 3467, 3468 ASSIGNMENTS. «88 to the provisions of Article IV. of the Chapter on Recording Transfers, as well as to those of this title. [Sees. 1158-1217.] § 3467. No bond shall be given by the sheriff, but he shall be liable on his official bond for the care and custody of the property while in his possession. Within forty days after date of the , transfer by the sheriff, the assignee must enter ; into a bond to the people of this State in such | amount as may be fixed by a judge of the Superior . Court of the county, or city and county, in which j an inventory in accordance with the provisions of f this title is filed, with sufficient sureties to be ap- j proved by such judge, and conditioned for the j faithful discharge of the trust and the due ac- I counting for all moneys received by the assignee, | which bond must be filed in the same office with ' the inventory; and any assignee failing to comply with the provisions of this section may be re- moved by the above named Superior Court on pe- tition of the assignor or any creditor, and his successor appointed by such court. [Amendment ! approved March 7, 1889; Stats. 1889, 83. In effect ( March 7. 1889.] § 3468. Until a verified inventory has been made and filed, either by the assignor or assignee, as required by the provisions of this title, and the assignee has given the bond required by the last section, such assignee has no authority to dispose of the property of the estate, or any part of it (except in the case of perishable property, which in his discretion he may dispose of at any time, and receive the proceeds of sale thereof); nor has he 1 power to convert the property, or the proceeds of any sale of perishable property, to the purposes of the trust. Within ten days after the filing of his bond, the assignee must commence 68'J ASSIGNMENTS. I»4« the publication (mikI sudi publii-atloii Khali con- tinue at least once :i wi-ek lor four w<>i*kH), In some newspaper published in the couuiy. or city and county, where the inventory Ik tiled. ;lven tin the instrument of assiirnment. at the address* lltherein sxiven. After such n<>tice is ;;iven. a copy (thereof, with affidavit of due publication anrovidoose, and pro- ided. that the failure to jiresent such claim shall ot have resulted from his own nephK-t. an. Public nuisance not legalized bv lapso of time Sec. 3490. § 3481. Every nuisance not included In the de- inition of the last section is private. I § 3482. Nothing which is done or maintained jmder the express authority of a statute can ho jleemed a nuisance. I § 3483. Every successive owner of property Ivho neglects to abate a continuing nuisance upon, \- k-isioiis of tliis act are lierehy repealed, liiii no •ights acquired or proceedings taken under the arovisious repealed, shall be impaired or In nny aianner affected by this repeal; and whenever a imitation or period of time is luescribtHi by Huch •ei)ealed provisions for acquiring a right or bar- •iug a remedy, or for any other purpose, has be- ?uu to run before this act takes effect, and the lame or any other limitation, is prescribed by this .ct, the time of limitation which shall have run irhen this act takes effect shall be deemed part of ihe time prescribed by this act. I "With relation to the laws passed at the present l^essiou of the legislature, this act must be con- ; trued as though it had been passed at the first |ay of the present session, if the provisions of any iw passed at the present session of the leglsla- ire contravenes or is inconsistent with tlie pro- isions of this act, the provisions of such law iust prevail. j "This act shall take effect on the lirst day of , ily, one thousand eight hundred and seventy- }>uv. ^Approved, March 30, 1874." 1 ! APPENDIX. APPKNDIX ackxowi.i:i)(;mi:nts. An Act to legalize certaiu ncUiiowIodgiueutH. [Approved March 2, 181)1; Stats. 1891, 20.1 Section 1. All acknowkHljruicnts of deeds aud •ther instruments of writinir. whereby real estate, r any interest therein, is conveyed or may l)e nf- ected, heretofore talccn before court commisslou- rs, and by them certified in the usual le;;al form. ,hall, from and after the passajje of this act, have he same force and effect for all purposes a« houjxh such acknowledijments had been taken be- l>re aud certified by a clerk of a couit of record, or ! county recorder, or a notary public; aud the rec- !rds of such deeds or instruments, if the same ':iall have been admitted for record, shall liere- !ftcr impart notice to the same extent as thouph ich acknowledj^ments had been taken before and 'jrtified by any one of the above-named ofticers; '•ovided, nothinp: in tliis act shall be so construed U in any manner to atTect the rij,'hts of any sub iquent purcliaser in ffood faith. iSec. 2. This act shall take effect from and after \i passage. 704 APPENDIX. An Act to legalize acknowledgments of certificates in writing required by section two of an act entitled "An Act to provide for the formation of chambers of commerce, boards of trade, me- chanic institutes, and other kindred protective associations," approved March thirty-first, eighteen hundred and sixty-six, heretofore made or taken, and to legalize all certificates heretofore made, signed, and acknowledged, and filed under section two of said act. [Approved March 10, 1885; 1885, 55.] Section 1. All acknowledgments heretofore made or taken to the certificate in writing required by section two of an act entitled "An act to provide for the formation of chambers of commerce, boards of trade, mechanic institutes, and other kindred protective associations," approved March thirty-first, eighteen hundred and sixty-six, wheth-' er proven bj' a witness or otherwise, and all cer-i tificates in writing heretofore made, signed, and acknowledged, and filed under section two of said act, though said certificates and acknowledgments be defective or irregular, are hereby legalized and made valid. Sec. 2. This act shall take effect and be in force from and after its passage. An Act to legalize certain acknowledgments. [Approved February 25, 1897.] The People of the State of California, represented in Senate and Assembly, do enact as follows: I Section 1. All acknowledgments of deeds and other instruments of writing, whereby real estate, APPENDIX. 701 or any interest thoreiu, is conveyed or may Im» af- fected, heretofore tnlien before court connnlMHlon- ers or a county cleric, and by them or liini certi- fied in the usual lenal form, shall, from and after the i)assaj2:e of this act, have tlie same force and effect for all purposes, as thoujrh such aci- cintion, society, or combination of porHonH. where- by any sncb corporation, society. asscM-iatlon. or coml)iuation of individuals are required to charRe not less than a ^iven sum for ctJinmlssloiiH, or whereby any person or commission merchant Ih, in any respect, restrained from char^luK less than a certain lixed sum for his services as such com- mission merchant in the sale of livestock, are hereby declared to be contrary to the public policy of this State, and unlawful; and any person who shall enter into any such trust, combination, or conspiracy, or who shall enforce (»r aid, al)ct. a»- :;ist, or encourage the enforcement of any such I'ule, regulation, by-law, or a^rrcement, shall be Ua- |)le to the penalties prescribed by this act. ane signed, sejiled. and Hivered. in duplicate copies, in the presence of i the parties concerned; and when made with t; approbation of the Superior Court, or the JIge thereof, in vacation, such approbation shall I ((M-tified in writing. Indorsed upon each copy of Civ. Code— 60 710 APPENDIX. the indenture. One copy of the indenture shall b( kept for the use of the minor by his parent oj guardian (when executed by them respectively) but when made with the approbation of the court it shall be deposited in the safekeeping of th( clerk of said court for the use of the minor. Th( other copy shall be held by the master, and de livered up by him to the apprentice at the expira tion of his term of service. [Amendment approvec April 9, 1880; Amendments 1880, 28 (Ban. ed. 178) Took effect immediately.] Same. Sec. 5. No indenture of apprentice, made ii pursuance of this act, shall bind the minor afte: the death of his master; but the apprenticeshii shall be thenceforth discharged, and the mino may be bound out anew. Same. Sec. 6. Facts of incapacity, desertion, drunk enness. vagrancy, etc., shall be decided in the sai( court by a jury, before the indenture shall tak effect, and an indorsement on the indenture, unde, seal of the court, that the charge or charges ar proved, shall be sufficient evidence of the mother', power to give such consent; but if the jury d not find the charge or charges to be true, the pei son at whose instance such proceedings may hav, been had shall pay all costs attending the sam<; [Amendment approved April 9, 1880; Amendment 1880, 28 (Ban. ed. 178.) Took effect immediately. Executor may bind. Sec. 7. The executor, who by the will of father is directed to bring up his child to a trad or calling, shall have power to bind such by u[ denture in like manner as the father, if livinj; , might have done. , i Superior court may bind. 1 Sec. 8. When any minor who is poor, hom', ; less, chargeable to the county, or an outcast, hf' APPENDIX. ;,; 5 visible means of obtaining an honeKt llvell- 30(1, it shall be lawful for the said court to bind ich appreutice uutil, if a male, he arrlvoK at the ?e of twenty-one, and if a female, to the ajjp of ghteen. [Amendment approved April l», 1880; mendments 1880, 28 (Ran. ed. 178). Took efTect anu'diatelj'.] bliirntions of masters. Sec. 0. It shall be unlawful for any uiaKtrr I remove an apprentice out of this State; and In 1 indentures by the said court for bindlup out an •phan, or homeless minor, as an apprentice, there lall be inserted, amon^ other covenants, a clause J the following: effect: That the master to whom 'ch minor shall be bound shall cause the same I be tau.c:ht to read and write, and the ;:round [les of arithmetic, and the ratio an. (Ban. ed. 178). Toolv effect immediately.] ney considerations and clothes the property of pprentiee. ec. 10. All considerations of money or clothes d or allowed by the master. In conformity with foregoing section, are the sole property of the irentice, and to whom the master Is nccounta- for the same, and he shall pay or donate Into ti; hand of the apprentice alone. T'.'ittnent of apprentices. 11. Parents and guardians and the said shall, from time to time, inciuire Into the 1 iinont of the children bound by tlicm. respect- 712 APPENDIX. ively, or with their approbation; and the judges of the said courts shall be responsible for the charge of indentured apprentices bound by the ap- probation of their predecessors in office, and de- fend them from all cruelty, neglect, breach of contract, or misconduct on the part of their mas- ters. [Amendment approved April 9, 1880; Amendments 1880, 29 (Ban. ed. 178). Took effect immediately.] Age to be stated. Sec. 12. The age of every apprentice shall be inserted in the indenture; and all indentures en- tered into otherwise than as is herein provided shall be, as to all apprentices under age, utterly void. Court to hear complaints. Sec. 13. The Superior Court shall hear the complaints of apprentices, who reside within the county, against their masters, alleging undeserved or immoderate correction, insufficient allowance of food, raiment, or lodging, want of instruction in the different branches of their trade or calling, or that they are in danger of being removed out of the State, or any violation of the indenture of ap- prenticeship; and the court may hear and deter- mine such cases, and make such order therein as' will relieve the party in the future. [Amend- ment approved April 9, 1880; Amendments 1880, j 29 (Bnn. ed. 179). Took effect immediately.] J Court may discharge apprentice. -■ Sec. 14. The Superior Court shall have power, where circumstances require it, to discharge an! apprentice from his apprenticeship, and in casd any money, or other thing, lias been paid or con-I tracted to be paid by either party in relation tc such apprenticeship, the court shall mal^e sucl order concerning the same as shall seem just anc reasonable. If the apprentice so discharged shal have been originally bound by the Superior Court APPENDIX. 7lg It shall be the duty of the court, If found d<>C4>»- saiy, again to bind such apprentice, if under age. [Amendment approved April l>, is^su; Amend- meuts 1880, 29 (lian. »'d. ITDi. '!'<... u .-m. . . iiately.] Liability of masier. . Sec. 15. Every master sliall be liable to au ac- i!ion on the indenture lor the breach of any <'oven- int on his part therein contained; and all damaK'eB •ecovered in such action, after dt'ductiuK Hie uec- 'Bsary charges in prosecuting the same, sliall be he property of the minor, and shall be applied and ippropriated to his use by the person who shall ecover the same, and shall be paid to the minor, f a male, at the age of twenty-one years, and if ii female, at the age of eighteen years. If such action is not brought during the minority of sueii pprentice, it may be commenced in his own name .t any time within six months after coming of ge, but not later than two years. Lction against apprentice for neglect, misde- meanor, etc. Sec. 1«J. An apprentice who shall be guilty <»f ny gross misbehavior, or refusal to do his duty, willful neglect thereof, shall render lilniself Ha- le to the complaint of the master in the Superior lourt of the county wherein he resides, which omplaint shall set forth the circumstances of the ase; and to said complaint shall be attache BANKS AND BANKIN( See Acts relating; to this subject in Volume of ; (General Laws, title, Banks and Banking.) Vn Act to repeal an Act entitled "An -\ct con- cerning corporations and persons engaged In the business of banking." approved .\pril 1. 187G. [Approved March 26, 1895; Stats. 189.".. p. 77.) fhe People of the State of California, represented In Senate and Assembly, do enact as followa: Section 1. That an Act entitled "An Act con- ^rning corporations and persons engaged in the usiness of banking." approved April first. ghteen hundred and seventy-six, be and the mu' is hereby repealed. S.c. 2. This Act shall lake effect and be in >r( •' from and after its passage. Iliiis act was also repealeil in lSi«;;. Si n- iv.«.;. 112.] n« APPENDIX. An Act to compel savings banks to publish a sworn statement of all unclaimed deposits. [Approved March 23, 1893; Stats. 1893, p. 183.] Section 1. The cashier or secretary of every savings bank, savings and loan society, and every institution in which deposits of money are made and interest paid thereon, shall, within fifteen days after the first day of December, in the year one thousand eight hundred and ninety-three, and within fifteen days of the first day of December of each and every second succeeding year there- after, return to the board of bank commissioners a sworn statement, showing the amount standing to his credit, the last known place of residence or postofiice address, and the fact of death, if known to said cashier or secretary, of every depositor who shall not have made a deposit therein, or withdrawn therefrom any part of his deposit, or any part of the interest thereon, for a period of more than ten years next preceding; and the cash- iers or secretaries of such savings banks, savings and loan societies, and institutions for deposit of savings, shall give notice of these deposits in one or more newspapers published in or nearest to the city, city and county, or town where such banks are situated, at least once a week for four suc- cessive weeks, the cost of such publications to be paid pro rata out of said unclaimed deposits; pro- vided, however, that this act shall not apply to or affect the deposit made by or in the name of any person known to the said cashier, or secretary to \e living, any deposit which, with the accumula- tions thereon, shall be less than fifty dollars. Sec. 2, The board of bank commissioners shall incorpr ate in their subsequent report each re- APPENDIX, 711 turn which shall have been made to them, uh pro- vided in section one of this act. Sec. 3. Any cashier or secretary of either of the banlvinjj: institutions mentioned in section one of this act ne;;lectiug or refusing to malce the s\v(»rn statement required by said section one, sliall l)i' guilty of a misdemeanor. t An Act to compel all depositaries of money and commercial banlcs to publish a sworn state- ment of all unclaimed deposits. [Approved February 25, 1897.] ; § 1. Sworn statement, duty to file. ,: § 2. Bank commissioners to report. '5' 3. Misdemeanor. \ The People of the State of California, represented i in Senate and Assembly, do enact as follows: I Section 1. The president, cashier, or secretary I of every bank, depositary, society, or institution ; of every kind or character which receive money on , deposit, or in which deposits of money are made. and upon which deposits no interest is paid, shall. I within fifteen days after tlie first day of .Time I In the year one thousand eight hundred and nlne- I ty-seven, and within fifteen days of the first day ] of .Tune of each and every second succeeding y«\ar ; thereafter, return to the Board of Bank Commis- 1 sloners, a sworn statement showing the amount : standing to his credit, the last known place of ; residence or postoflice address, and tlie fact of ! death, if known to snid prt^sident. cashier, or sec- ' retary. of every depositor of such bank, depos- Itnry. society, or institution, who shall not have ; made a deposit therein, or witlidrawn therefrom I any part of his deposit or funds to liis credit there- 718 APPENDIX. in, for a period of more than ten years next pre- ceding; and the presidents, cashiers, or secretaries, of all such banlvs, depositaries, societies, and insti- tutions, which receive money on deposit or in which deposits of money is made, shall give no- tice of these deposits, in one or more newspapers published in or nearest to the city, city and coun- ty, or town Avhere such banks, depositaries, soci- eties, or institutions are situated, at least once a weeli for four successive weeks, the cost of such publications to be paid pro rata out of said un- claimed deposits; provided, however, that this Act shall not apply to or affect the deposit made by or in the name of any person known to the said presidents, cashiers, or secretaries, to belong, or any deposit which, with the accumulations there- on, shall be less than fifty dollars. Sec. 2. The board of bank commissioners shall incorporate in their subsequent report each return which shall have been made to them, as provided in section one of this Act. Sec. 3. Any president, cashier, or secretary of either of the banks, depositaries, societies, or in- stitutions named in section one of this Act, neg- lecting or refusing to make the sworn statement required by said section one, shall be guilty of a misdemeanor. APPENDIX. 71f All Act to amend au Act eutitlcd, "Au Act to pro- vide for the Furmatiou of CorporatioUM for the Accumulation aud luvestmeut of I'uiuIh aud Saviugs," approved April eleventh, eigUteeu hundred and sixty-two. LStats. 1871-2, pp. 132-3.] [Enacting clause.] { 1. Acts not lawful. 5 2. lucreaso of capital stock. S 3. Idem. Section 1. Section eighteen of an act entitled "An act to provide for the formation of corpora- tions for the accumulation and investment of funds and savings," approved April eleventh, eighteen hundred aud sixty-two, is hereby amend- ed so as to read as follows: See. 18. It shall not be lawful for the directors to divide, withdraw, or in any way pay to the stockholders, or any of them, any part of the cap- ital stocli, nor to reduce the amount of the same, except as hereinafter provided. Sec. 2. Section nineteen of the act mentioned In the first section of this act is hereby amended so as to read as follows: Sec. 19. Whenever it is desired to increase the amount of capital stoclc, and in cases where the capital stociv is partly, but not all talcen and paid in it is desired to reduce the same to not less than the amount paid in, a meeting of stoclcholders may be called, by a notice signed by at least a ma- jority of the directors, and publislied at least sixty days in every issue of some newspaper pub- lished in the county where the principal place of business of the company. Is located, which notice shall sj)ecify the object of tlie meeting, the time and place where it Is to be held, and the amount 720 APPENDIX. 1 to wliioh it is proposed to increase or reduce tlie capital stocli, as tlie case may be; aud a vote of two-tliirds of all the shares of stock represented at the meeting shall be necessary to an increase or decrease of the amount of capital stock; pro- vided, that nothing in this act contained shall be held to authorize the release of any subscription to the capital stock, or the reduction of the amount of capital stock below the full amount that shall have been subscribed thereto. Sec. 3. Section twenty of the act mentioned in the first section of this act is hereby amended so as to read as follows: Sec. 20. If at any meeting so called a sufficient number of votes has been given in favor of in- creasing or reducing the amount of capital stock, a certificate of the proceedings, showing a com- pliance with these provisions, the amount of the capital actually paid in, and the amount to which the capital stock is to be increased or reduced, . shall be made out, signed, and verified by the affi- i davit of the chairman and secretary of the meet- ) ing, certified by a majority of the directors, and I filed as required by the second section of this act. | When so filed the capital stock of the corpora- 1 tion shall be increased or reduced to the amount . specified in the certificate. i Sec. 4. This act shall take effect from and after : its passage. [Approved February 21, 1872.] The original act. of which this is an amend- ment, is incorporated in the provisions of the code relating to savings and loan corporations. APPENDIX. 721 Au Act providiuj; for the dissolutiou and wiiulin^; up of savin-s banks, trust companies, and banks of deposit, and providing for the rtion of said "The Dissolved Savinj^s Bank Fund," the interest upon such bonds to be placed by him to the credit of said fund. Sec. 8. Whenever the moneys on hand in the State treasury, to the credit of the said "The I>is- solved Savings Bank Fund" is not sutticient to pay the claims allowed by the State board of ex- aminers against said fund, it shall be the duty of said board to sell such bonds belonging to said fund as they may deem proper, for the purpose of providing funds for the payment of such claims 80 allowed by them. Sec. 9. This act shall take effect from and aft.-r Its passage. BENEFIT SOCIETIES. iAn Act relating to mutual beneficial and relief associations. [Approved March 28, 1874; 1873-4. 745.] and relief associations. § 1. Mutual beneficial § 2. How formed. § 3. Powers. § 4. Idem. ,S 6. By-laws. .§ 6. Old associations. iMutual beneticial and relief associations. ' Section 1. Associations may be formed for the "purpose of paying to the nominee of any member a sum upon the death of said member, not exce»Ml- in-: three dollars for each membrr of such ass;overnmt*nt. and for the transaction of its business, and shall not be subject to the provisions of the general insurance laws. Old associations. ; Sec. (>. All associations heretofore formed for ;the objects contemplated by this act, and now in ^operation, may avail themselves of its provisions •by filing: the certificate provided for in section one; I'provided. that such society shall not have greater imembership than three thousand. j Sec. 7. This act shall take effect immcnliately. I BOARDS OF TRADE: See post, p. 730. BONDS. All Act to facilitate the giving of bonds required by law. [Approved March 12, 1SS5; 18S5, 114.] ,5 1. Incorporation for giving bonds. ,} 2. When corporation not accepted. !} 3. Duty of insurance commissioner. ;[ncorporations for giving bonds. 1 Section 1. Whenever any person who now or hereafter may be required or permitted by law to make, execute, and give a bond or undi'riakiug, [with one or more sureties, conditioned for the ''aithful performance of any duty, or for the doing [^r not doing of anything in said bond or under- aking specified, any head of department, board, !?ourt. judge, officer, or other person who is now or :5hall hereafter be reciuired to approve the suffi- 726 APPENDIX. ciency of any such boud or uudertakiug, or the sureties thereon, may accept as sole and sufficient surety on such bond or undertaking, any corpora- tion incorporated under the laws of any State of the United Slates lor the purpose of making or guaranteeing bonds and undertakings required by law, and which shall have complied with all the requirements of the laws of this State regulating the admission of such corporation to transact such business in this State; and all such corporations are hereby vested Avith full power and authority to make and guarantee such bonds and undertak- ings, and shall be subject to all the liabilities and entitled to all the rights of natural persons sure- ties. When corporation not accepted. Sec. 2. It is further provided that the guaranty of anj such company shall not be accepted by heads of departments or others, as provided in section one of this act, whenever its liabilities shall exceed its assets, as ascertained in the man- ner provided in section three of this act. | Duty of insurance commissioner. j Sec. 3. Whenever the liabilities of any such company shall exceed its assets, the insurance commissioner shall require the deficiency to be paid up within sixty days, and if it is not so paid I up, then he shall issue a certificate showing the extent of such deficiency, and he shall publish the same once a week for three weeks in a daily San Francisco paper, and thenceforth, and until such deficiency is paid up. such company shall not do business under the provisions of this act. And in estimating the condition of any such company, under the provisions of this act the commissioner shall allow as assets only such as are author- ized under existing laws at the time, and shall charge as liabilities, in addition to eighty per cent. of the capital stock, all outstanding indebtedness APPENDIX. TH of the coiiipauy, :nid ;i prciniuiii ivserve equal to fifty per ceiiuiiii of llie preiiiiiiiiis cliurKod by Huld couipauy ou all risks tlieu in force. Nothing herein coulaiued shall api)ly to bouds giveu in of property. 12. Examining accounts of receivers. I 13. Investigation of affairs. ' 14. Violation laws relating to corporations. , 15. Associations to pay assessment. i 16. How collections may be enforced. I 17. Licenses. I 18. Report to commissioners. I 19. Withdrawal of stockholders. I 20. "Building and loan association," what imludcs. j Section 1. All buildiuj: and loan associations :eretofore or hereafter incorporated under the 'iws of this State, or any other State or territory, ir those of any foreign country, and doini; busi- 'ess in this State, shall be subject to the exam- 'lation and supervision of a board of commis- jioners of loan associations, which board shall i:)nsist of two commissioners, each of whom shall 728 APPENDIX. be an expert of accouuts, aud shall be appointed by tlie governor, Avitliin thirty days after the passage of this act, to hold ollice for the period of four years, and until their successors are ap- pointed aud qualihed. Sec. 2. The commissioners shall each receive a salary of twenty-four hundred dollars per annum and necessary traveling expenses, not to exceed for the two commissioners and their secretary, the sum of seven hundred dollars per annum. Said commissioners are hereby authorized to appoint a secretary at a salary not to exceed twelve hun- dred dollars per. annum, who shall have power to examine the books and affairs of the associations, the same as the commissioners. All said salaries and traveling expenses shall be audited by the State controller and paid in the same manner as the salaries of other State officers. [Amend- ment approved March 26, 1895; Stats. 1895, p. 103.] Sec. 3. The commissioners shall have their of- fice in San Francisco, which office shall be kept open for business every business day, and during ! such hours as are commonly observed by the banks of that city as banking hours. They ' shall procure rooms for their office at a monthly ■ rental not exceeding forty dollars. They may also provide fuel, stationery, printing, and other i necessarj^ conveniences connected with their of- fice, not to exceed an aggregate cost of four hun- dred dollars per annum. All expenses authorized in this section shall be audited and paid in the: same manner as the salary of the commissioners.^ [Amendment approved March 26, 1895; Stats.| 1895, p. 103.] Sec. 4. The commissioners, before entering up- on the duties of their office, must each execute an official bond in the sum of five thousand dollars,! and take the oath of office as prescribed by th€' Political Code for State officers in general. The i APPENDIX. 79 secretary appoiuted by said commlssioucrs Hboll execute a boud iu the sum of two thousand dol- lars, aud take the oath of othce as prescribed by said I'ulilical Code. LAmeiidmeut appro vtd March 20, 18'J5; Stats. 180:), p. lu;j.J Sec. 5. The duties of the coiiiiiiissioners of building and loan associations shall be to furnish ill corporations legally authorized to transact the 3usiness of a building and loan association within ;his State a license authorizing them to transact :he business of a building and loan association I'or one year from the date of said license; to re- |;eive aud place on tile in their otlice the annual I'eports required to be made by building and loan dissociations by this act; to supply each associa- llon with blank forms and such statements as the Commissioners may require; to make, on or before he first day of October of each year, a tabulated •eport to the governor of this State, showing the •ondition of all institutions examined by them. ivith such recommendations as they may deem i>roper, accompanied by a detailed statement, veri- iled by oath, of all moneys received and expended •>y them since their last report. [Amendment ap- >.roved March 20. 1895; Stats. 1895, p. 103.] I Sec. 0. The commissioners shall visit, once In very year, and as much oftener as they may ,leem expedient, every building and loan assocla- ilon doing business in this State. At such visits, ihey shall have free access to the vaults, books, ,nd papers, and shall thoroughly inspect and ex- ,mine all the affairs of each of said corporations, >nd make such inquiries as may be necessary to scertain its condition and ability to fulfdl all its 'npagements, and wliether it has complied with 'tie provisions of law governing such associations: Ihey shall preserve in a permanent form a full ?cord of their proceedings, including a statement If the condition of each (^f said corporations, 730 APPENDIX. which shall be open to the inspection of the public during their office hours. Sec. 7. To facilitate the examinations of the commissioners, as specified in the foregoing sec- tion, every association shall keep a booli of rec- ords, written in ink, showing the appraised values of the real estate security held in connection with each loan, and signed in each case by the ap- praiser or ofiicer or committee of the association making such estimate value. The commissioners shall have power to order a revaluation of the se- curities of any building and loan association when they deem it necessary, and may, for that purpose, appoint local ai)praisers at the expense of such association, the total expense of such appraise- ment not to exceed two dollars and fifty cents for each property examined and appraised. Each appraiser shall make a sworn report to the com- missioners of the appraised values of all property examined. [Amendment approved March 26, 1895; Stats. 1895, p. 103.] Sec. 8. Either of the commissioners may sum-' mon all trustees, officers, or agents of any such corporation, and such other witnesses as he thinks proper, in relation to the affairs, transactions, and condition of the corporation, and for that purpose may administer oaths; and whoever refuses, with-: out justifiable cause, to appear and testify, when thereto required, or obstructs a commissioner in the discharge of his duty, shall be punished by a fine not exceeding one thousand dollars, or im- prisonment not exceeding one year, or by both such fine and imprisonment. Sec. 9. If the commissioners, upon examina- tion of any corporation under their supervision find that such corporation has been violating the provisions of law governing such associations, ov is conducting its business in an unsafe manner such as to render its further proceeding hazar APPENDIX. 731 dous to the public or to those haviug fuudu in its custody, they shall uolily the alioniey j;eiieral of such facts, aud the atloruey general, iu his discre- tion, may apply to the judge of the Superior Court of the couuty iu which such corpurati«>n is doinj; business to issue an iujuucliou restraining such corporation, in whole or in part, from further pro- ceeding with its business until a hearing can be had. Such judge may, in such application, issue such injunction, aud, after a full hearing, njay dissolve or modify it, or malce it perpetual, and may make such orders and decrees, according to the course of proceedings in equity, to restrain or prohibit the further prosecution of the business of the corporation, as maybe needful in the premises; and may appoint one or more receivers to take possession of its property and effects, subject to «uch directions as may from time to time be pre- scribed by the court. Sec. lu. And if either of the commissioners, having knowledge of the insolvent condition, or any violation of law, or unsafe practice of any association under their supervision, such as ren- ders, in their opinion, the conduct of its business 1 hazardous to its shareholders or depositors, and ishall fail to report the same in writing to the at- torney general, as required by this act, then such icommissioner, on conviction thereof, shall be pun- lished by a tine of not less than five thousand dol- ilars nor more than ten thousand dollars, or by im- ;prisonment in the county jail not less than one ,year nor more than two yenrs, or by both such ifine and imprisonment; and his oflice shall be de- clared vacant by the governor, and a successor (appointed to fill his unexpired term. • Sec. 11. When receivers are so appointed, the (secretary of the corporation shall make a schedule of all its property, and its secretary, board of in- Ivestnient. and other officers transferring its prop- 732 APPENDIX. eity to tlie receivers, shall make oath that said schedule sets forth all the property which the cor- poration owns, or is entitled to. The secretary shall deliver said schedule to the receivers, and a copy thereof to the commissioners, who may at any time examine, under oath, such secretary, board of investment, or other officers, in order to determine whether or not all the property which the corporation owns, or is entitled to, has been transferred to the receivers. Sec. 12, The commissioners, or one of them, shall, at least once in each year, and as much oftener as they may deem expedient, examine the accounts and doings of all such receivers, and shall carefully examine and report upon all ac- counts and reports of receivers made to the proper court and refeiTed to the commissioners by the court, and, for the purposes of this section, shall have free access to the books and papers relating to the transactions of such receivers, and may ex- amine them under oath relative to such trans- actions. Sec. 13. Upon the certificate, under oath, of any five or more ofiicers, trustees, creditors, sharehold- ers, or depositors of any such corporation, setting forth their interest and the reasons for making such examination, directed to the commissioners, and requesting them to examine such corporation, they shall forthwith make a full investigation of its affairs, in the manner provided. Sec. 14. The commissioners, if in their opinioD any such corporation or its officers or trustees have violated any law in relation to such corpora- tions, shall forthwith report the same, with such remarks as they deem expedient, to the attorney- general, who shall forthwith institute a prosecu- tion for such violation, in behalf of the people oi the State. Sec. 15. To meet the expenses provided by thif APPENDIX. 733 A« t, eveiT building' aud loan association, or cori>o- raiioii or association doinj,' business on the bulltl- iiiL, and loan plan, shall pay, in advance, to the fdiuiiiissioners, its pro rata amount of such ex- (Miises, to be determined by an Jissessment levied »n I lie shares of each of such associations in force .11 I he thirty-tirst day of December, eighteen hun- ir. (i aud ninety-two, pro rata, according' to the par k-;ilue of such shares; and annually thereafter the .;ini commissioners shall levy, in a like manner, 111(1 collect in advance, a like assessment on the Ui.ires of all such associations in force as per re- Mii I. herein provided for, to be made to said com- nissioners, of the condition at the close of business III December thirty-tirst of each year; provided, K.wever, that no association shall pay less than .'11 dollars per annum; and all associations here- ifiur orj^anized shall each pay to the commission- ,!rs for their licenses not less than one dollar per 'Qonth for the term expiring December thirty-first U'-'-eeding, dating from the time of application for KM use. [Amendment approved March 20, 1895; T.its. 1895, p. 103.] Src. 10. The collection of all moneys assessed, s herein provided, for the annual expenses, or for- 'iiihle as fines for failure to make reports as It ii in specified, and due from any corporation or ^-- H-iation coming within the provisions of this < r. may be enforced by an action instituted in ny court of competent jurisdiction, and all fionoys collected or received by the said commis- •ioners under this act shall be deposited with the Itate treasurer, to the credit of a fund to be :nown and designated as the "Building and Loan vssociation Inspection Fund." 'Sec. 17. No association shall transact business 'i this State without first procuring from the com- lissioners of building and loan associations a cer- 'ficate of authority or license to do so. To pro- Clv. Code— 62 734 APPENDIX. cure such authority it must tile with the said com- missioners a certified copy of its articles of incor- poration, constitution, and by-laws, and all other printed rules and regulations relating to its meth- ods of conducting business, and of all subsequent amendments or changes thereto, and otherwise comply with all requirements of law. No associa- tion, after the expiration of the term for which a license has been granted to it by the commission- ers of building and loan associations, shall con- tinue to transact the business of a building and loan association without first procuring from said commissioners a renewal of such license on the terms provided for in this Act; and any corpora- tion violating this provision shall forfeit the sum of ten dollars per day during the continuance of the offense; and any violation of this section by any officer of such association shall be a misde- meanor. The commissioners are authorized and empowered to revoke the license of any associa- tion under their supervision, the solvency whereof is imperiled by losses or irregularities; and the commissioners immediately upon revoking such li- cense shall report the facts to the attorney gen-, eral, who shall thereupon take such proceedings as is provided by section nine of this Act [Amendment approved March 26, 1895; Stats., 1895, p. 103.] Sec. 18. Every building and loan associatioi doing business in this State shall, once in everj year, to-wit. within thirty days after th( expiration of its annual fiscal term, make i report, in vrriting, to the Commissioners o:^ Building and Loan Associations, verified b: the oath of its president and secretary show, ing accurately the financial condition of sue) association at the close of said term. The repoij shall be in such form as the Commissioners shal' prescribe, upon blanks by them furnished for tha APPENDIX. m ')urpose, and shall specify the foUowiuj,' particu- lars, namely: Name of the corporation, place Inhere located, authorized capital stools, amount of Jtoclc paid in, the names of the dlrectorH, the imount of capital stoclc held by each, the amount |iue to shareliolders, the amount and cliaracter of :dl otiier liabilities, cash on hand, and the number md value of shares in each and every series of tork issued by the association. All money re- •eivod or disbursed by such association shall be luly accounted for. Any association failing' to lie the annual report within the time spfcilied u'l tin, shall be subject to a penalty of ten dollars •cr (lay for each and every day such report shall t' delayed or withheld. [Amendment approved 1.1 r.h 2(3, 1895; Stats. 189'), 103.] St'c. 19. Stockholders desirinjj: to withdraw loiii any association, or to surrender a part or all f ilieir stock, shall have power to do so by jriving liiiiy days' notice in writing of such intention to viilulraw. On the expiration of such notice, the i.J S 1. Corporations may be formed. § 2. Certificate of incorporation. S 3. Certified copy shall be evidence. § 4. Corporations, rights and powers. S 5. Stock and certificates. 9 6. Trustees, etc. S 7. Real and personal estate. S 8. By-laws. § 9. Meetings. § 10. Power to levy assessments. § 11. E.xisting corporations. Corporations may be formed. ! Section 1. That corporations for tlie formation iand orjjjanization of chambers of commerce, boards lof trade, mechanic institutes, aud other associa- 'tions for the extension aud promotion of trade and -commerce, or the advancement, protection, and ilmprovement of the mechanic arts and sciences, may be formed and orijanized accordinj; to the .provisions of this act. and such corporations and Ithe members thereof shall be subject to the liabil- jlties herein imposed, and to none other. ICertificate of incorporation. i Sec. 2. Any twenty or more persons wlio may 'desire to form a corporation for either of the pur- poses specified in the precedinj; section sliall malve, ;5lpn, and aclvnowled;2:e, before some oHicer compe- , patent to take aclcnowled^'ment of deeds, aud file In the ofhce of the county clerk of the county in which the principal place of business of the com- ipany is intended to be located, and a certified 738 APPENDIX. copy thereof in the office of the Secretary of State, a certificate in writing, in which shall be stated the corporate name of the corporation, the object for which the corporation shall be formed, the time of its existence, not to exceed fifty years, and the name of the city or town, and county, in which the principal place of business of the cor- poration is to be located. Certified copy shall be evidence. Sec. 3. A copy of any certificate of incorpora- tion filed in pursuance of this act, and certified by the County Cleric: of the county in which it is filed, or his deputy, or by the Secretary of State, shall be received in all courts, actions, proceed- ings and places, as presumptive evidence of the facts therein stated. Corporation— Rights and powers. Sec. 4. When the certificate provided for in sec- tion two of this act shall have been filed as there- in provided, the persons who shall have signed and acknowledged the same, and such persons as shall thereafter become their associates or suc- cessors, shall be a body politic and corporate, and by their corporate name have succession for the period limited and power: 1. To sue and be sued in any court; ' 2. To make and use a common seal, and to alter ! the same at pleasure; 3. To lease, purchase, hold, sell, mortgage, con- vey in trust, convey, release from trust or mort- j gage, such real and personal estate as hereinafter ; provided in this act; j 4. To elect or appoint such oflicers, agents, and ^ servants as the business of the corporation shall require; 5. To make by-laws, not inconsistent with the . laws of this State, providing for the organization I of the corporation and the management of its af- ' fairs. APPENDIX. ~.j >i.M k and certificates. Sec. 5. Corporations formed under iliis act may liave a capital btuclc, and may issue certilic-ates to represent sliares of sucli capital stock; i)rovldee ixi'd and established in the by-laws of eacli of ;u( h corporations. trustees, etc. I Sec. 0. Corporations formed under this act may confer upon a board of trustees or directors, or ,ipon a body to be styled the executive committee )f the corporation, the right to exercise all or any ;)ortion of the corporate powers of the corporation; ,)rovided, that the certiticale directed by tlie sec- |)nd section of this act to be executed and tiled In !hose cases in which the right to exercise the cor- )orate powers is confined to a board of trustees or directors, or to a body to be styled the executive lommittee of the corporation, shall state the fact, 'md also whether the right is limited or otherwise; ind in such corporations the said certificate sliall i.lso state the number of such trustees or directors, '•r committee, and tlie names of those who shall liave been selected to manage the affairs of the '.orporations for the first six months, leal and personal estate. i Sec. 7. Corporations formed under the provl- lions of this act shall bo capable in law to lease. 'Urchase. have. hold. use. take possession of. and njoy, in fee simple or otherwise, any personal T real estate within this State necessary for the jisps and purposes of such corporation, and the 740 APPENDIX. same to sell, lease, deed in trust, alien, and dis- pose of at their pleasure. All real estate owned by the corporation shall be held in the name of the same, and al conveyances made by such corpo- ration shall be signed by the president and secre- tary, and attested by the corporate seal; provided, that no corporation formed under this act shall engage in any mercantile, commercial, or mechani- cal business. [Amendment approved March 10, 1S85; Statutes and Amendments 1885, 76; took ef- fect from passage; repealed coniaicting acts.] Act to defective acknowledgments taken under this act: See ante, Appendix, title Acknowledg- ments. By-laws. Sec. 8. The by-laws of all corporations formed under the provisions of this act without capita] stock shall prescribe how members of the corpo- ration shall be admitted, and how expelled, and how officers, agents, and servants shall be elected or appointed; and such provisions in the by-laws of any such corporation shall have full force and effect as between private parties and said corpo- ration. Meetings. Sec. 9. Corporations formed under the provi sions of this act shall determine by their by-law; the manner of calling and conducting their meet ings, the number of members that shall constitut' a quorum, the manner of levying and collectin; assessments, the officers of the same, and the man ner of their election or appointment, and thei tenure of office; and may prescribe suitable per alties for the violation of their by-laws, not ex ceeding in any case one hundred dollars for an one offense. Power to levy assessments. Sec. 10. Corporations formed under the prov sions of this act having no board of trustees. ■ APPENDIX. 741 directors, or executive committee, sliall Imve pow- er to levy and collect from the iiieinberH thereof, for the purpose of pnylu;; the proper and le^'ai ex- penses of such corporation, assessments in the manner which may be prescribed V)y llie by-lawH of such corporation, and not otherwise. Existing corporations may talvc benefit of this act. Sec. 11. Any existing corporation, association. or institution formed for eitlier of the puriK)ses contemplated by this act. may, by a vote of a ma- jority of the members voting at a meeting called ispecially for the purpose, become entitled to the benefit of this act on filing the certificate required Jt)y this act; provided, a notice of the meeting and its object shall be published in a paper of general ^ii'culation in the county in which the principal j^lace of business of such corporation, association. or institution is located, for at least ten days pre- (vious to the day on which such meeting is to be held; and provided further, that the certificate tierein provided to be filed shall be signed and ac- knowledged by at least five of the members of !mch corporation, association, or institution, and !?ontaiu a list of the members who desire to be- come members of the corporation. And upon tlie liling of such certificate as provided by this act. ,;he persons signing and acknowledging the same, 'ind those named therein, and such persons as ■ihall thereafter become their associates or suc- iressors, shall be a body politic and corporate, with •ill the powers and privileges conferred by this net, Und shall thereupon succeed and l)ecome entitled !o all the rights, franchises, and property of such .'orporntion. association, or institution. iCfifect. I Sec. 12. This act shall be in force from Jind '.fter its passage; and all corponitions formed inrlor it are hereby exempted from the operation 742 APPENDIX. of all laws and parts of laws inconsistent with its provisions. Section 7 of the above act contained a proviso originally limiting the amount of realty that could be held by incorporations under this statute to two hundred and fifty thousand dollars. This sec- tion was amended in 1868 by an act approved Jan- uary 14, 1868, enlarging the amount to three hun- dred and fifty thousand dollars. The amendment of 1885 removes the limit altogether. CO-OPERATIVE ASSOCIATIONS. An Act to provide for incorporation, operation, and management of co-operative associations. [Approved March 27, 1895; Stats. 1895, 221.] § 1. How formed. § 2, Rights and liabilities of members. § 3. Articles of association. § 4. By-laws, meetings, elections. § 5. Bj^-laws to be recorded. § 6. Property is subject to execution. § 7. Business may be changed. § 8. Profits, how divided. § 9. Powers of associations. § 10. Associations may be consolidated. § 11. Associations may be dissolved. § 12. Rights of attorney general to bring suit. § 13. Act to be liberally construed. The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. It shall be lawful for five or more persons to form a co-operative association for the purpose of transacting any lawful business. Such associations shall not have or issue any capital] stock, but shall issue membership certificates to each member thereof, and such membership cer- APPENDIX. 743 titicates cannot be assi^^ned so that the trausferee thereof can by such transfer become a iueiul>er of the association except by the resoUillon of the board of directors of the association. But by the ; resolution of consent of the board of director8, jsuch certilicatos may be transferred, so that the transferee may become a member in lieu of the last former holder thereof. Sec. 2. In such association the ri;,'hl8 and in- terest of all members shall be equal, and no mem- ber can have or acquire a greater interest therein than any other member has. At every election iheld pursuant to the by-laws each member shall ibe entitled to east one vote and no more. All i)er- aons above the age of eighteen years, regardless of sex, shall be eligible to membership, if otherwise qualified and elected as the by-laws may provide. The by-laws shall provide for the amount of the indebtedness which such association may incur. And no member shall be responsible individually, or personally liable, for any of the debts or lia- bilities of the association in excess of his propor- ition of such indebtedness: but in case of the fail- ,uro and insolvency of such association, may be re- quired to pay any unpaid dues or installments which have, before such insolvency, become due from such member to the association, pursuant to its by-laws. Sec. 3. Every association formed under this net shall prepare articles of association, in writ- ing, which shall set forth: The name of the as- 'sociation, the pui-pose for which It is formed, the Iplace where its principal business is to be trans- acted, the term for which it is to exist (not to ex- ceed fifty years), the number of the directors 'thereof, and the names and residences of those 'selected for the first year, the amount which each member is to pay upon admission as membership Teo, and that each member signing the articles has 744 APPENDIX. actually paid in such sum, and that the interest and right of each member therein is to be equal. Such articles of association must be subscribed by the original associates or members, and acknowl- edged by each before some person competent to take an acknowledgment of a deed in this State. Such articles so subscribed and acknowledged shall be filed in the office of the Secretary of State, who shall furnish a certified copy thereof, which shall be filed in the office of the County Clerk of the county where the principal business of such association is to be transacted; and from the time of such filing in the office of said County Clerk the association shall be complete, and shall have and exercise all the powers for which it was formed. Sec. 4. Every association formed under this Act must, within forty days after it shall so become an association, adopt a code of by-laws for the government and management of the association, not inconsistent with this Act. A majority of all the associates shall be necessary to the adoption of such by-laws, and the same must be written in a book, and subscribed by the members adopting the same: and the same cannot be amended or < modified except by the vote of a majority of all the members, after notice of the proposed amend- j ment shall be given, as the by-laws may provide. <. Such association may, by its code of by-laws, pro- vide for the time, place, and manner of calling and conducting its meetings; the number of direc- | tors, the time of their election, their term of office, ; the mode and manner of their removal, the mode and manner of filling vacancies in the board caused by death, resignation, removal, or other- wise, and the power and authority of such direc- tors, and how many thereof shall be necessary to the exercise of the powers of such directors, which must be at least a majority; the compensation of APPENDIX. 711 :iiiy of the directors, or of auy ollicer; the nuin- l.rr of the otiieers, if any, other than the directors, ;iih1 their term of ollice; tlie mode of removal, and iIh- method of tillinjLr ii vacancy; the mode and 111,1 liner of conducting; business; tlie mo; provided, the method shall secure the se- •i(T property, or labor, and within what time the 'ame shall be paid, or delivered, or performed; Inch other thinirs as may be proper to carry out he i)urpose for which the association was formed. ! Sec. 5. The by-laws and all amendments must ' Civ. Code-63 746 APPENDIX. be recorded in a book and kept in the office of the association, and a copy, certified by the directors, must be liled iu the office of the County Clerk where the principal business is transacted. Sec. 6. The property of such association shall be subject to judgment and execution for the law- ful debts of the association. The interest of a member in such association, if sold upon execution or any judicial or governmental order whatever, cannot authorize the purchaser to have any right except to succeed, as a member in the association, with the consent of the directors, to the rights of the member whose interest is thus sold. If the directors shall choose to pay or settle the mat- ter after such sale, they may either cancel the membership, and add the interest thus sold to the assets or common property of the association, or re-issue the share or right to a new member upon proper payment therefor, as the directors may de- termine. Sec. 7. The purpose of the business may be altered, changed, modified, enlarged, or dimin- ished by a vote of two-thirds of all the members, at a special election to be called for such purpose, of which notice must be given the same as the by- laws shall provide for election of directors. Sec. 8. The by-laws shall provide for the time and manner in which profits shall be divided be- tween the members, and what proportion of the profits, if any, shall be added to the common prop- erty or funds of the association. But the by-laws may provide that the directors may suspend oi pass the payment of any such profit, or install- ment of earnings, at their discretion. Sec. 9. Every association formed under this aci shall have power of succession by its associate name for fifty years; to. in such name, sue and b( sued in any court; to make and use a commoi seal, and alter the same at pleasure; to receive bj APPENDIX. 747 flft, devise, or purchase, hold, and convoy real ind personal property, as the piirixjscs of tin* um- sociation may retjuire; to appoint such subordl- late ajjrents or otlicers as the business may re- luire; to admit associates or members, and to sell r forfeit their interest in the association for de- ault of installments, or dues, or work, or labor equired, as provided by the by-laws; to enter Into my and all lawful contracts or oblij,'ations essen- ial to the transaction of its affairs, for the pur- ose for which it was formed, and to borrow loney, and issue all such notes, bills, or evidences f indebtedness or mortj^^aj^'e as its by-laws nuiy •rovide for; to trade, barter, buy, sell, exchange, Dd to do all other thinjjs proper to be done for lie purpose of carrying into effect the objects for ^hich the association is formed. Sec. 10. Two or more associations formed and xisting under this act may be consolidated to- Bther, upon such terms and for such purposes, Qd by such name, as may be ajjjreed upon, in Titinp. signed by two-thirds of the members of ich such association. Such agreement must also »te all the matters necessary to articles of asso- ation, and must be aclcnowledged by the signers tfore an otRcer comi)etent to tal^e an acknowledg- lent of deeds in this State, and be tiled in the of- of the Secretary of State, and a certilied copy lereof be filed in the office of tlie County Clerk f the county where its principal business is to be ansacted; and from and after the tiling of such urtified copy, the former associations comprising lA component parts shall cease to exist, and the Oisolidated association shall succeed to all the 'hts, duties, and powers of the coniponent ns- iclations. and be possessed of all the rights, du- and powers prescribed in the agreement «>f OBolidated association not Inconsistent with this ft, and shall be subject to all the liabilities :ind 748 APPENDIX. obligations of the former component associations, and succeed to all the property and interests there- of, and may make by-laws and do all things per- mitted by this act. Sec. 11. Any association formed or consolidated under this act may be dissolved and its affairs wound up voluntarily by the vrritten request of two-thirds of the members. Such request shall be addressed to the directors, and shall specify rea- sons why the winding up of the affairs of the as- sociation is deemed advisable, and shall name three persons who are members to act in liquida- tion and in winding up the affairs of the associa- tion, a majority of whom shall thereupon have full power to do all things necessary to liquida- tion; and upon the filing of such request with the directors, and a copy thereof in the office of the County Clerk of the county where the principal business is transacted, all power of the directors shall cease and the persons appointed shall pro- ceed to wind up the association, and realize upon its assets, and pay its debts, and divide the resi- due of its money among the members, share and share alike, within a time to be named in said written request, or such further time as may be granted them by two-thirds of the members, in writing, filed in the office of said County Clerk; and upon the completion of such liquidation the said association shall be deemed dissolved. No receiver of any such association, or of any prop- erty thereof, or of any right therein, can be ap- pointed by any court, upon the application of any member, save after judgment of dissolution foi usurping franchises at the suit of the State oi California by its Attorney General. Sec. 12. The right of any association claiming' to be organized under this act to do business may be inquired into by quo warranto, at the suit o: APPENDIX. 7i9 the Attorney Geueral of this State, hut not other- wise. Sec. 13. This act beinp passed to promote asso- ciation for mutual welfare, the words "lawful business" shall extend to every kind of lawful ef- fort for business, educational, industrial, lu-uevo- lent, social, or political purposes, whether con- ducted for profit or not, and this act shall nnt be strictly construed, but its provisions must at all times be liberally construed, with a view to eIT»M-t its object and to promote its purposes. Sec. 14. This act shall take effect immediately. All Act to define co-operative business corpora- tions and to provide for the (tr^'anization and government thereof. [Approved April 1, 1878; 1877-8, 883.] " '"perative business corporation defined. Section 1. A co-operative business corporation s a corporation formed for the purpose of con- liK.tin^ any lawful business and of dividing a por- i:ion of its profits among persons other than its ittockholders. Co-operative business corporations shall be formed under and governed by Division ^Hrst, I»art lY., Title I., of the Civil Code of this l>tate, and when so formed, may, in their by-laws, n addition to the matters enumerated in section hree hundred and three of said code, provide: 1. For the number of votes to which each stock- • lUler shall be entitled; and, 2. The amount of profits which shall be divided mong persons other than the stockholders, and 'be manner in which and the persons among Irhom such division shall be made. ' Sec. 2. This act shall be in force from and after s passage. 750 APPENDIX. CORPORATIONS. Act allowing corporation to act as surety, see ante, p. 719, title Bonds. An Act to provide for the payment of the wages of mechanics and laborers employed by corpora- tions. § 1. Wages paid monthly. § 2. Nonpayment, rights on. Section 1. Every corporation doing business in this State shall pay the mechanics and laborers employed by it the wages earned by and due them weelily or monthly, on such day in each week or month as shall be selected by said corporation. Sec. 2. A violation of the provisions of section one of this act shall entitle each of the said me- chanics and laborers to a lien on all the property of said corporation for the amount of their wages, which lien shall take preference over all other liens, except duly recorded mortgages or deeds of trust; and in any action to recover the amount of such wages or to enforce said lien, the plaintiff shall be entitled to a reasonable attorney's fee, to be fixed by the court, and which shall form part of the judgment in said action, and shall also be entitled to an attachment against said property [Approved March 31, 1891; Stats. 1891, 195.] APPKNDIX. 751 lAn Act r('(iiiiriiij: evt-ry corporal ion rloin^j buslnesH in this State to pay their emi)loy»'s, and each of them, at least once in each and every mouth, the waives earned by such eniployO; to limit the defenses which may be set up by such corporation to assi^^'umeuts of wages, set-ofT or counter claims, or the absence of such em- ploys at the time of making payment, and In case of such absence the wages are payable upon demand; to prohibit assignments of wages for the purpose of evading the provi- sions of this act and agreements to accept wages at longer periods than as herein pro- vided as a condition of emi)loyment; to fix a penaltj' for this violation of the provisions of this act by such corporation, and to provide for the disposition of any fines recovered from corporations violating the same. [Approved March 29, 1S97; Stats. 1897, c. 170.] {1. Corporation must pay wages monthly. 2. Lien in case of failure, i 3. Defenses. I 4. Assignment of wages. § 6. Agreement as to wages. § 6. In what money wages payable. I 7. Penalty. The People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. Every corporation doing business in this State shall pay, at least once a month, each and every employe employed by such C(»ri>oration. in transacting or carrying on its business, or in the Iperformance of labor for it, the wages earned by 'such employe during the preceding mouth; pro- vided, however, that if at the time of payment any employe shall be absent, or not engaged in his 7&2 APPENDIX. usual employment, he shall be entitled to said pay- ment at any time thereafter upon demand. Sec. 2. A violation of any of the provisions of section one of this act shall entitle each of the said employes to a lien on all the property of said corporation for the amount of their wages, which lien shall take preference over all other liens, ex- cept duly recorded mortgages or deeds of trust; and in any action to recover the amount of such wages, or to enforce said lien, the plaintiff shall be entitled to a reasonable attorney's fee, to be fixed by the court, and which shall form part of the judgment in said action, and shall also be entitled to an attachment against said property. An unrecorded deed shall be no defense to such actions. Sec. 3. That on the trial of any action against such corporation for a violation of the provisions of this act, such corporation shall not be allowed to set up any defense for a failure to pay monthly any employe engaged in transacting or carrying on it business the wages earned bj^ such employe during the preceding month, other than the fact that such wages were not earned, except a valid assignment of such wages, a set-off or counter claim against the same, or the absence of such employe from his usual employment at the time of the payment of the wages so earned by him. Sec. 4. No assignment of future wages, payable monthly under the provisions of this act, shall be made to the corporation from which such wages are or may become due, to any person, on behalf of such corporation, for the purpose of evading the provisions of this act, and all such assign- ments are hereby declared to be invalid. Sec. 5. No corporation shall require, and no em- ploye of such corporation shall make, any agree- ment to accept wages at longer periods than as APPENDIX. 7B pidvided in this act as a coiKlition of «'ini»l<)y- Uli'Ut. Sec. G. All wages earned by anj' employe* ea- gaued in tlie service of any corporation in this State shall be paid in lawful moneys of the United States, or in checlvs nej,'otiable at face value on dfinand. See. 7. Any corporation violating any of the piMvisions of this act shall be subject to a fine II it exceeding one hundred dollars, or less than liity dollars, for each violation, the same to be ni!l>osed by any court in this State having jurisdic- tion of offenses in which tlie penalty does not ex- '•• M (1 a fine of one hundred dollars, said fine to be (•lid by the judge or magistrate before whom a •f.overy may be had under the provisions of this a« 1. into the general fund of the treasury of the c-oimty in which said conviction may be had. Sec. 8. This Act shall tal^e effect and be in foiee from and after the first day of April, eiirh- li'i'U hundred and ninety-seven. 754 APPENDIX. A.n Act authorizing certain corporations to act as executor and in other capacities, and to pro- Tide for and regulate the administration of trusts by such corporations. [Approved April 6, 1891; Stats. 1891, p. 490.] § 1. What corporations may act as executor. § 2. Deposits made with corporation. § 3. Public administrator may make deposits. § 4. Court may order deposit and reduce bonds. § 5. Responsible for investments. § 6. Interest. § 7. Deposit of bonds with State treasurer. § 8. May mortgage real estate. § 9. Deposit, increase, and decrease of. § 10. Abstracts of title. § 11. Certificate of authority. § 12. Semi-annual statement. § 13. Verification of statement. § 14. Duty of bank commissioners. § 16. Administering oaths and examining witnesses. § 17. Duty when corporation violates law. § 18. False statement revokes authority. § 19. Retirement from business. Section 1. Any corporation which has or shall be incorporated under the general incorporation laws of this State, authorized by its articles of in- corporation to act as executor, administrator, guardian, assignee, receiver, depositary, or trustee, and having a paid-up capital of not less than two hundred and fifty thousand dollars, of which one hundred thousand dollars shall have be^n actually paid in, in cash, may be appointed to act in such capacity in like manner as individuals. In all cases in which it is required that an executor, ad- ministrator, guardian, assignee, receiver, deposi- tary, or trustee, shall qualify by taking and sub- scribing an oath, or in which an affidavit is re- quired, it shall be a sufficient qualification by such corporation if such oath shall be taken and sub- APPENDIX. 7K Bcribed or such atlidavit uiade l»y tlie prcHident or secretary or manager thereof, aud kucIi ollk-er shall be liable for the failure of such corporation to perform any of llie duties re(iuired l)y law to be performed by individuals acting in like ca- pacity aud subject to lilie penalties; and such cor- poratiou shall be liable for such failure to ihe full amount of its capital stocl^; provided, auy such ap- pointment as jiuardian shall apply to the estate only, and not to the person. Such cori)oration« shall be entitled to and shall be allowed proper (rf compensation for all the services performeoration, before accepting any ,;uch appointment or deposit, shall deposit with the Treasurer of State, for the benetit of the creditors 3f said corporation, the sum of one hundred thous- and dollars ($100,000.00), in bonds of the Unite,'a^e. Sec. 11. It shall not be lawful for any such cor- poration to accept any trust or deposit, as herein- before provided, after the passage of this act with- out first procuring: from the Board of Ranlv Com- missioners a certificate of authority, stating tluit such corporation has complied with the require- ments of this act in respect to such deposit. Sec. 12. Such corporation shall file with the said Board of Bank Commissioners, durinj; tlie months )f January and July of each year, a statement, un- der oath, of the condition of such corporation at the close of business on tlie thirty-first day of De- cember and the thirtieth day of June, respectively, aext preceding, showinc: its financial condition. ■41so, a list and brief description of the trusts held jy such corporation, the source of the appolnt- 'nent thereto, and the amount of real and per- irenal estate held by such corporation by virtue hereof, except that mere mort«:ap:e trusts, where- 'n no action has been talvcn by such corporation, hall not be included in such statement. The said tatement shall also be in such form, and contain 'uch reports, returns, and information, as to the ' ffairs, business, condition, and resources of the torporation. as the said board may from time to inie prescribe and require. S(>c. 13. Such statement shall be verified by the t!i(lavit of one of the manajriufr otficers and two f the directors or trustees of such c«»rporation. .lio shall also state in such attidavit that they ive examined the assets and booly of such revocation to said corporation and to he clerk of every court of record in this State. MK'h revocation shall not be set aside until satis- actory evidence shall be given to said Board of K iank Commissioners that such corporation is in ubstance and in fact in the condition set forth II such statement or report, and that all the re- iiirements of this act have been complied with. , ueh revocation shall be suHicient cause for the re- loval of such corporation from any appointment old by it under the provisions of this act. Sec. 19. Any corporation which desires to retire rom business under this act shall furnish to the loard of Bank Commissioners satisfactory evl- tnce of its release and discharge from all the ob- Lrations and trusts hereinbefore provided for; hereupon they shall revoke their certiticate to 762 APPENDIX. such corporation, and thereupon the Treasurer of State shall return to said corporation all its secu- rities. Sec. 20. All laws and parts of laws in conflict with the provisions of this act are hereby repealed. Sec. 21. This act shall take effect and be in force from and after its passage. 1 An Act to protect stockholders and persons deal- ing with corporations in this State. [Approved March 29, 1878; 1877-8, 695.] Frauds and misrepresentations, penalty for. Section 1. Any superintendent, director, secre- tary, manager, agent, or other officer of any cor- poration formed or existing under the laws of this State, or transacting business in the same, and any person pretending or holding himself out as such superintendent, director, secretary, manager, agent, or other officer, who shall willfully sub- scribe, sign, indorse, verify, or otherwise assent to the publication, either generally or privately, to the stockholders or other persons dealing with such corporation, or its stock, any untrue or will- fully and fraudulently exaggerated report, pros- pectus, account, statement of operations, values, i business, profits, expenditures, or prospects, or other paper or document intended to produce or give, or having a tendency to produce or give, to the shares of stock in such corporation a greater: value, or less apparent or market value, than they really possess, or with the intention of defrauding any particular person or persons, or the public, oi persons generally, shall be deemed guilty of a felony, and on conviction thereof shall be punishi ed by imprisonment in the State prison or a counir ty jail not exceeding two years, or by fine not exlSi ceeding five thousand dollars, or by both; pro! 5 vided, that this act shall be construed to appl:|ls APPENDIX. fH .Illy to corporations whose capital stock has been .1- shall hereafter be listed at a stock board or lock exchuuge in this State, or whose shareH be emilarly bought and sold in the stock market of his Stale. \u Act to authorize corporations to own and im- prove the lots and houses in which their busi- ness is carried on. [Approved April 1, 187G; 1875-G, G53.] •lay hold lot, etc. Section 1. By unanimous consent of its mem- )cis or stockholders, any corporation existing un- fer the laws of this State may acquire and hold he lot, and house in which its business is car- it'd on, and may improve the same to any extent c(|uired for the convenient transaction of its busi- 'less. Sec. 2. This act shall take effect immediately. Vn Act to provide the manner of execution of deeds by cemetery corporations. [Approved March 26, 1895; Stats. 1895, p. 75.] riie People of the State of California, represented in Senate and Assembly, do enact as follows: Section 1. All deeds or conveyances executed by I emetery associations or incorporations within this ptate, shall be executed in the name of the corpo- ration or association, under the seal thereof, by he president, or vice-president, and secretary i hereof. j Sec. 2. All acts and parts of acts in conflict ,?vith this statute, in so far as they contiict with he same, are hereby repealed. Sec. 3. This act shall take effect and be in force roin and after its passage. T64 APPENDIX. An act in relation to foreign corporations,. [Amended March 17, 1899.] Section 1. Every corporation lieretofore create" by the laws of any other state or foreign country, and doing business in this state, shall within ninety days after the passage of this act, and any corporation hereafter created by the laws of any other state or foreign cotintry and doing business in this state, within forty days from the time of commencing to do business in this state, desig- nate some person residing in this state, upon whom process issued by authority by or tinder any law of the state, may be served, and within the time aforesaid shall file such designation in the of- fice of the secretary of state, and a copy of such designation, duly certified to by the secretary of state, shall be sutficient evidence of such appoint- ment and of the due incorporation of such corpora- tion, and it shall be lawftil to serve on such person so designated, or in event that no such person is so designated, then on the secretary of state, any process issued as aforesaid. Such service shall be made on such person so designated or the secretary of state, in such manner as shall be prescribed in case of service required to be made on foreign corporations, and such service shall be deemed a valid service thereof on such corporation. Section 2. Every corporation created by the^ laws of any other state or foreign country which shall fail to comply with the provisions of section one of this act shall be denied the benefit of the laws of this state limiting the time for the com- mencement of civil actions, and shall not maintait or defend any action or proceeding in any coiu*i of this state until such corporation shall have com plied with the provisions of section one of thi;^ act, and in any action or proceeding institutet against a body styled as a corporation and createi by the laws of any other state or foreign country evidence that such body has acted as a corporatioi or employed methods usually employed by cor APPENDIX. T« H.r.itions. sliall ho ivct'ivrd Ity th<' court in such K lion or procccdin.i; for tlir purpos*' of proving 111 existence of sucli corporation; tlie snllici«'ncy .1 -~uch evidence shall he determined liy the court M lure whom such action or pn)ceerps,when running to a fire, shall, with its horses, shicles, and salvage api)aratus, have the same ,ght of way as is or may be bestowed by any ordl- inor statistics. 776 APPENDIX. Notice of hours of labor to be posted. Sec. 3. Every person or corporation employing minors under sixteen years of age in any manu- facturing establishment shall post, and lieep post- ed, in a conspicuous place in every room where such help is employed, a printed notice stating the number of hours per day for each day of the week required of such persons, and in every room where minors under sixteen years of age are employed, a list of their names, with their ages. Violation and penalty. Sec. 4. Any person or corporation that know- ingly violates or omits to comply with any of the foregoing provisions of this act, or who knowing- ly employs, or suffers or permits any minor to be employed, in violation thereof, shall, on convic- tion, be punished by a fine of not less than fifty nor more than two hundred dollars for each and every offense. Duty of commissioner. Sec. 5. It shall be the duty of the Commissioner of the bureau of Labor Statistics to enforce the provisions of this act. Sec. 6. This act shall take effect and be in force from and after its passage. An Act to provide for the appointment of guar- dians of children maintained in any orphans* home or orphan asylum in this state. [Approved March 23, 1893; Stats. 1893, 203.] Section 1. When any orphan or half -orphan has been maintained in any orphans' asylum or or- phans' home in the State of California for more than one year, the managers of said home or asy- lum shall be entitled to the guardianship of such APPENDIX. 777 child in preference to any other person; providnl, however, that such raanapers shall not In? appoint- ed guardian of a minor child over fourteen years of age without its consent, nor shall this act pre- clude the court of competent jurisdiction from In- quiring: into the fitness of such managers for the guardianship of such children; but in exercising the power of the court to appoint guardians for minors, the managers of the home having the care of such child for more than one year shall, if there be no special reasons to the contrary in any partic- ular case, be preferred in the guardianship of the [MMson of the child to the parent so leaving the •liild, without good cause therefor being shown, indor the care of said home for the said time. Sec. 2. This act shall take effect immediately. Statute prohibiting use of child for exhibitions, mmoral purposes, soliciting alms, etc: See Penal >', Appendix. I*(\gging by minor to be restrained: See Penal Jnde, Appendix. Art for incorporation of societies for prevention f < ruelty to children: See Penal Code. Appendix. Minors not to enter saloon: See Penal Code, Ap- ►endix. I Act to prevent sale of intoxicants to minor: See *enal Code, Appendix. , Child not to be confined wnth adult charged vith crime: See Penal Code, Appendix. INSURANCE. Fiio patrol: See ante, p. 759. .n Act relating to life, health, accident, ana nn- nuity or endowment insurance on the assess- ment plan, and the conduct of the business of such insurance. [Approved March 19, 1891; Stats. 1891. p. 120.] 778 APPENDIX. § 1. Construction of contract. § 2. Formation of corporation— Deposit— Certificate. § 3. Reincorporation. § 4. Contracts— Liens— Payments. § 5. Reserve fund— Investments. § 6. Requirements from foreign corporations— License. § 7. Limitations as to age— Certificate— False Statements. § 8. Exemption from attachment. § 9. Annual statement. § 10. Duty of commissioner. § 11. Lapses— Notice of assessment. § 12. Fees. § 13. Expenses of prosecution. § 14. No application to secret societies. Section 1. Every contract whereby a benefit may accrue to a party or parties therein named upon the death or physical disability of a person insured thereunder or for the payment of any sums of money dependent in any degree upon the collection of assessments or dues from persons holding similar contracts shall be deemed a con- tract of mutual insurance upon the assessment plan. Such contracts must show that the liabili- ties of the insured thereunder are not limited to fixed premiums. i Sec. 2. Corporations may be formed under the j general laws of this State to carry on the business j of mutual insurance upon the assessment plan, j and shall be subject only to the provisions of this j act. No such corporations shall issue contracts of j insurance until at least two hundred (200) persons ' have applied in writing for membership or insur- ance therein, and have paid to the treasurer of such corporation the sum of five thousand ($5,000) dollars. This sum shall be invested in bonds or securities, approved by the Insurance Commis- sioner of this State, or deposited in some banli in this State where it will earn interest. Said bonds, or securities, or evidences of such deposit, shall be placed, through the Insurance Commissioner of this State, with the State Treasurer, and the prin- cipal sum shall be held in trust for the contract- lij holders of such corporation, with the right in the J APPENDIX. rn corporation to exchange said bonds, securiticH, or evidence of banlc deposit for otherK of like value. Such corporation sluill also, as a condition prece- dent to issuini,' any contracts of insurance, obtain the written certiticate of the Insurance ConnnlH- sioner that it has complied with the reciuireuK'ntn of tills act; and that the name of the corporation is not the same as that of any other corporation of this or other States, as indicated by the In- surance department reports in his olhce; nor shall tli<' Commissioner approve any name or title so cl'scly resembling another as to mislead the pub- lic. No corporation formed hereunder shall have Ir-al existence after one year from the date of its 11 tides, unless its organization has been completed iiiid business commenced; nor shall any corpora- tion or individual solicit, or cause to be solicited, any business, until such corporation shall have complied with the provisions of section six hun- dred and thirty-three of the Political Code of this iState. Sec. 3. Any existing corporation engaged in 'transacting the business of life, health, accident, 'or endowment insurance on the assessment plan, may reincorporate under the provisions of the 'Civil Code of this State, and under the provisions of this act; provided, that it shall not be obliga- 'tory upon such corporation to reincorporate; and *any such existing corporation may continue to ex- 'ercise all rights, powers, and privileges conferred l>y this act, the same as if incorporated hereunder. Sec. 4. The contracts of insurance issued by ^such corporation shall specify the sum or sums to be paid upon the happening of the contingency in- ;3urod against, and when such payments will be jmade. Unless the contract shall have been Invall- lated by fraud or by breach of its conditions, the ^corporation shall be obligated to pay the benetlcl- 'iry the amount or amounts sjiecilied in Its con- •tract at the time or times therein named, and sue* 780 APPENDIX. indebtedness shall be a lien upon all the property of such corporation, with priority over all indebt- edness thereafter incurred, except as hereinafter provided in case of insolvency. Failure to make such payment, within thirty days after notice, at the home office, by mail, as provided by law, of final judgment, unless waiver is made by the beneficiary, shall constitute a forfeiture of the right to do business. Sec. 5. Every domestic corporation organized or doing business under this act shall accumulate a reserve or emergency fund, which shall at all times be not less than the largest benefit contract- ed to be paid by it to any one person. Every ex- isting domestic corporation must accumulate such fund within one year from the date when this act takes effect, and any corporation organized here- under, within one year from the date of its cer- tificate of incorporation. Such fund, to the extent of the largest amount contracted to be paid by any such corporation to any one person, shall be so invested and deposited, as provided in section two hereof, with the right in the corporation to ex- change any such securities for others of equal value. The deposit required by section two of this act shall constitute a part of the reserve re- quired by this section, at the option of such corpo- ration. When any corporation doing business hereunder shall discontinue business, this fund shall be returned to such corporation, or so dis- posed of as may be determined by the Superior Court of the county or city and county in which is its principal place of business. Sec. 6. Corporations organized under the laws of any other State or country to transact the bus- ines of mutual assessment insurance must, as a condition precedent to transacting business in this State, deposit with the insurance commission- er of this State a certified copy of its charter or other instrument required by its home author!- APPENDIX. TH ties; a statement under oath, of its president or secretary, of its business for tlie preciMlink' year, ;lii such form as niny bo recpiired l)y the insur- ince commissioner of this State; an appointment of a p:eneral a^'ont, service upon Avlioin sluill bind |;he coii)oration; a certificate that for tli«> next pn^ ceding twelve mouths it has paid in full the nuix- mum amount named in its contracts of insurance; I certificate from the proper officer of its state or government that lilo- ; at ion to do business in this State. This license nust be renewed annually, and may be revoked 'vhenever it is ascertained that the statements equired to be made by this section are not true. Jpon such revocation, notice thereof shall be I'iven by the insurance commissioner, by publica- llon in some newspaper published in tlie citj' and iounty of San Francisco, for two weelvs, daily, |.nd no new contracts shall be made by such com- pany in this state. When any other State or coun- ;ry imposes any additional license, fees, taxes, or I'eualties upon any eorjioration organized or do- ,ag business imder this act, like license, fees, ;axes, or penalties shall be imposed upon corpora- Jons of the same kind and tlieir agents of such t-ite or country doing business in this State. Civ. Code— 66 782 APPENDIX. Sec. 7. No corporation doing business under this act (except accident or casualty corporations) shall issue a contract of insurance upon the life of any person under fifteen years of age, or after he or she has passed his or her sixty-first birth- day. Every such contract of insurance shall be founded upon written application therefor, and (except when the application is for health, acci- dent, or casualty insurance only, or for one hun- dred dollars life insurance or less) such applica- tion shall be accompanied by the report of a repu- table physician, containing a detailed statement of his examination of the applicant, and showing the applicant to be in good health, and recommending the issuance of a contract of insurance. Any so- licitor, agent, employee, examining physician, or other person making a false or fraudulent state- ment to any corporation doing business under this act, with reference to any application for insur- ance or for the purpose of obtaining any money or benefit from such corporation, shall be guilty of a misdemeanor, and upon conviction shall be pun- ished by a fine of not less than one hundred dol- lars nor more than five hundred dollars, or by im- prisonment in the county jail for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court; and any person who shall make a false statement of any material fact or thing in a sworn statement as to the death or disability of a con- , tract-holder in any such corporation, for the pur- J pose of procuring or aiding the beneficiary or '■ beneficiaries or contract-holder in procuring the payment of a benefit named in the contract, shall . be guilty of perjury, and may be proceeded ; against and punished as provided by the statute of this State in relation to the crime of perjury. I Sec. 8. The money, benefit, annuities, endow- ment, charity, relief, or aid to be paid as provided by the contracts issued by any corporation doing APPENDIX. 7n business under this act shall not be llahle to at- tachment or other process, and shall not he seized, taken, appropriated, or applied hy any h«j;al or e(iiiitable process, nor by operation of law, to pay any debts or liability of the contract-holder or any beneficiary named thereunder. Sec. 9. Every domestic and forelpn corporation doing business under this act shall annually, on or before the first day of February, file with the insurance commissioner, in such form as he shall I)rescribe, a statement of its affairs for the y«*ar ending on the preceding thirty-first day of !>«•- (•ember. The insurance commissioner, in person or by duly authorized deputy, shall have the pow- er of examination into the affairs of any donu's- tic corporation doing business or claiming to do business under this act, at any time, in his discre- tion, and shall make such examination at least once a year. Sec. 10. If the insurance commissioner, after examination of the afTairs of a corporation, shall find that such corporation Is not doing its busl- 'ness in conformity to this act, or that it is doing !i fraudulent or unlawful business, or that it is not 'carrying out its terms of contract, or that it can- 'aot within three months from the date of notice of default pay its obligations, he shall cite the presi- 'dent, secretary, manager, or general agent of said corporation, or all of them, to appear before him ^(stating the time and place), to show cause why 'the authority of such corporation to do business shall not be revoked; and if they cannot show '.cause, then he shall report the facts to the attor- Qey-general of this State, who shall commence iproceedings in the proper court to restrain said porporation from doing any further business. t Sec. 11. No policy or certificate issued by any (Corporation or association doing business under !'he provisions of this act shall lapse or be lapsed 'or the nonpayment of any assessments, dues, or 784 APPENDIX. premiums, unless the corporation or association has first mailed to the insured under such policy or certificate, at his or her last given postoffice address, a notice setting forth the amount to be paid, and the time the same is due and payable; and such notice shall be mailed at least fifteen days before the assessment is due (provided, that such corporations doing business under this act as collect specific amounts at specific dates, as con- tained in the contract, shall not be compelled to send such notices), and an affidavit made by the officer, book-l^eeper, or clerk of any such corpora- tion having charge of the mailing of notices, set- ting forth the facts as they appear on the records in the office of the said corporation, showing that such notice was mailed and the date of mailing, shall constitute conclusive evidence of the mailing of such notice. Sec. 12. The fees for filing statements, certifi- cates, or other documents required by this act, or for any service or act of the insurance commis- sioner, and the penalties for any violation of this act, shall, except as otherwise provided herein, be the same as provided in the laws of this State relating to life insurance companies, and shall be disposed of as provided by such laws. Sec. 13. And for all lawful expenses under this act, or by reason of any of its provisions, in the prosecution of any suit or proceedings, or other- wise, for the enforcement of the provisions of this act, the insurance commissioner must present bills, duly certified by him, and accompanied with vouchers, to the state board of examiners, who must allow the same, and direct payment thereof be made; and the State controller shall draw war- rants therefor on the State treasurer for the pay- ment of the same to the insurance commissioner, in addition to the ordinary contingent expense,,., which warrants shall be payable out of the gen-| eral fund. I APPENDIX. TH Sec. 14. The provisions of tliis act shall not ap- ply to secret or fraternal societiefi. lodKes, or coun- cils, which conduct tlieir biisinesH and secure iiicnibership on the lod>,'e system exclusively, hav- ing' ritualistic work and ceremonies in their so- cieties, lod?:es, or councils, nor to any mutual or l»»'netit association, orjjanized or formed and com- posed only of members of any such society, lod^e, or council exclusively. Sec. 15. All acts and parts of acts in conflict with the provisions of this act are hereby re- pealed. Sec. IG. This act sliall tal^e effect immediately. An Act to provide for the incorporation of mutual insurance companies, for the insurance of life and health, and against accidents. [Approved April 2, ISGO; 18G5-G, 752.] § 8. Capital stock. 5 9. Return of guarantee notes. ,S 10. Impaired capital— Assessment. This act was incorporated in the Civil Code; it was amended in ISSO as follows: Capital stock. Sec. 8. Every company formed or existing un- ider this act shall have a capital stock of not less '.than one hundred thousand dollars. It shall not ;make any insurance nor transact any business un- itil its capital stock sliall have been fully paid up in cash. The board of directors of the company, or a committee of the directors appointe()iIioration may increase or diinliilxh ItH capital <\<>ck in the mode and manner prescribe*! by »ec- i(.ii three hundred and lifty-nlue of said Civil Jode. [Amendment npproved April liO. 1HS<); 1880, J.'.n (Ban. ed. 528). Toole effect In.ni pnssuKe; af- (' IS only corporations formed before 1873.] riie act of April 2G, 1880, from which the fore- roiiii; three amendments were tal affect any corporation formed after twelve )"1. p. IK).] § 1. Claim to be filed— False representations. § 2. Suits to foreclose. Attachment. i 4. Duty of sheriff. § 6. Sections of Code of Civil Procedure. Section 1. Anyowner or person having in charge a stallion, jack, or bull used for prop:i^'atin^' pur- poses, shall have a lien for the agreed price for the service of such stallion, jack, or bull upon any mare Or cow served for pay by any such stallion, jack, or bull, and upon the offspring of such service: provided, that the ovsner or person having in Charge such stallion, jack, or bull shall, within ninety days after such service, file in the otfice of the county recorder of the county where such mare or cow is served or kept, a verified claim containing a particular description of the mare or cow so served, the date and place of serving, the name of the owner or reputed owner of the mare or cow so served, a proper description, by name or otherwise, of the stallion or jack or bull per- forming such service, the name of the owner or person in charge thereof, and the amount of the Uen claimed, which claim, when filed as aforesaid, shall operate as notice to subsequent purchasers and incumbrancers of such mare or cow (or the 796 APPENDIX. term of one year from the date of the filing of such claim; and, provided, that any willfully false representations concerning the breeding or pedi- gree of such stallion, jack, or bull made or pub- lished by the owner or person in charge of such stallion, jack, or bull, or by any one else at the request or instigation of such owner or person in charge, shall invalidate any lien claimed under or by virtue of the provisions of this act. Sec. 2. Suit to foreclose any lien created here- under may be brought in any county where said mare, cow, or offspring from such service may be found, and the plaintiff, at the time of issuing summons, or at any time afterwards prior to the rendition of judgment therein, may have the mare or cow upon which said lien subsists, and the said offspring, attached as further security for the pay- ment of any judgment he may recover, unless the defendant or person in possession of such mare, cow, or offspring give him good and sufficient se- curity to pay such judgment, in which event the mare, cow, or offspring shall be forthwith dis- charged by the sheriff from such attachment, and from the lien hereunder created. Sec. 3. The clerk of the court must issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, showing,— First.— That the defendant is indebted to the plaintiff upon a demand for services rendered by the stallion, jack, or bull, belonging to or under charge of plaintiff, upon the mare or cow of de- fendant, for wliich his claim has been duly filed, in accordance with section one of this act. Second.— That the sum for which the attach- ment is asked is an actual, bona fide existing debt, ^ due and owing from the defendant to the plaintiff, and that the attachment is not sought and the ac- tion is not prosecuted to hinder, delay, or defraud anv creditor or creditors of the defendant. APPENDIX. 797 Sec. 4. The writ iiiiist be dirt'ctiMl t«. tlu- hln-rirr >>[' the county iii which suit is brou;,'ljt, ami imiKi KMluire him to attach the mare or cow him in such lien, and tlie oJTsprin^ of such h< unless the defendant or person in posKessiou of such mare, cow, or ofTspriu;; j;ive Kood and kuIII- ( lent security as provided in this act. in which I ;ise, to take such security and dischar^'*' any at- tachment he may have made, and to payment of any jud.mnent he may recover, un- 1< ^-s defendant sxive him K<»od an«l sutlicieiil secu- riiy to pay such judirnu'iit. in Avhich event su<-h Idus shall be forthwith discharj^ed by the sherilT I'lcm such attachment, and from the lien hereby cre.-ited. Cleric to issue writ. Sec. 5. The clerk of the court must issue the writ of attachment upon receiving an allidavit by ir on behalf of the plaintitf, showing;: 1. That defendant is indebted to the plaintiff upon a demand for labor, for which his claim has been duly filed in accordance with section iwo ,Df this act; 2. That the sum for wliich the attachment is isked is an actual bona fide existinj? debt, due and twing from the defendant to the plaintilT. and luit the attachment is not souj;ht, and the action -; not ])rosecuted, to hinder, delaj', or defraud any reditor or creditors of the defendant. -lieriff to attach logs. Sec. G. The writ nnist be directed to the sheriff f the county, and must reciuire him to attach lul safely keep the logs and tind)er spt'cilied In uch lien, or so much thereof as may be sutlicient satisfy plaintiff's demand, unless the defend- nt give good and sutlicient security, as provideorated city, or city and county, with- |i the State of California, for the purpose of lodging or sleeping apartment, which room or Ipartment contains less tlian five hundriMl cubic »t of space, in the clear, for each person so oc- )ying such room or apartment, shall be deemed llty of a misdemeanor, and shall, upon con- tion thereof, be punished by a fine of not less in fifty (50) dollars or more than five hundred )) dollars, or by imprisonment in the county lUl, or by both such fine or imprisonment. 802 APPENDIX. Misdemeanor. Sec. 2. Any person or persons found sleeping or lodging, or who hires or uses for the purpose of sleeping in or lodging in any room or apartment which contains less than five hundred (500) cubic feet of space, in the clear, for each person so occu- pying such room or apartment, shall be deemed guilty of a misdemeanor, and shall, upon con- viction, be punished by a fine of not less than ten (10) or more than fifty (50) dollars, or by both such fine and imprisonment. Buildings excepted. Sec. 3. It shall be the duty of the chief of police (or such other person to whom the police powers of a city are delegated) to detail a competent and qualified oflicer or oflicers of the regular force to examine into any violation of any of the pro- visions of this act. and to arrest any person guilty of any such violation. Sec. 4. The provisions of this act shall not be construed to apply to hospitals, jails, prisons, in- sane asylums, or other public institutions. Sec. 5. All acts or parts of acts in conflict with the provisions of this act are hereby repealed. Sec. 6. This act shall take effect and be in force from and after its passage. MECHANICS' INSTITUTES. See ante, p. 737. MINES AND MINING. An Act for the protection of miners. [Stats. 1871-72, p. 413. Enacting clause.] § 1. Protection of miners. § 2. Escape shaft. § 3. Liabilities. Damages. APPENDIX. ,ftj Section 1. It shall not be lawful f(.r any (MjriM^- ration, assoeiallon, owner, or owners of any (piartz mining claims within the Slate of Califor- nia, where such corporation, association, owiht, or '\\ iiers employ twelve men daily, to sink down into such mine or mines any perpendicular shaft or incline beyond a depth from the surface of ihree hundred feet without i)rovidinK a second mode of e;j:ress from such mine, by shaft or tun- nel, to connect Mith the main shaft at a dei)th of not less than one hundred feet from the surface. See. 2. It shall be the duty of each corporation, issociation, owner, or owners of any quartz mine • r mines in this State, where it becomes necessary <> work such mines l)eyond the depth of three lundred feet, and where the number of men em- )l<.yed therein daily shall be twelve or more, to )r()ceed to sink another shaft or construct a tunnel ;<» as to connect with the main working shaft of ncli mine as a mode of escape from underground ' < ident or otherwise. And all corporations, asso- iations, owner, or owners of mines as aforesaid, vorking at a greater depth than three hundn'd cct. not having any other mode of egress than rom the main shaft, shall proceed as herein pro- ided. Sec. 3. When any corporation, association, own- r. or owners of any quartz mine in this State, hall fail to provide for the proper egress as here- 1 contemplated, and where any accident shall oc- ,nr. or any miner working therein shall be hurt r injured and from such injury might liave os- iped if the second mode of egress had existed, icli corporation, association, owner, or owners of le mine where the injuries shall have occurred lall be liable to the person injured in all dain- -:os that may accrue by reason thereof; anut the meeting: sliall {be ipso facto dissolved; pntvided. however, that by I a vote of the holders of the majority of the capital I stock of the corporations aforesaid the board of 'trustees may be required to furnish to the mret- ! inj; a written detailed statement and account of the affairs, business, and property of the corpora- ition; but if the holders of a majority of the shares {are present, they shall proceed to vote, the se<'re- jtary callinc: the roll, and the members votin;: yea jor no. as the case may be. The secretary sliall [enter the same upon his list, and when he has add- ed up the list and stated the result, he shall si^'n the same and hand it to the chairman, who shall sisn the same and declare the result. fAmend- [ment approved April 1, 1S7(»: Amendments lS7.'»-<). ;7oO. Took effect from passajje.l Ballot to supply vacancies. Sec. 3. If the result of the vote Is that the hold- Civ. Code— 68 806 APPENDIX. ers of a majority of all the shares of the com- pany are in favor of the removal of one or more of the officers of the company, the meeting shall then proceed to ballot for officers to supply the vacancies thus created. Tellers shall be appoint- ed by the chairman, who shall collect the ballots and deliver them to the secretary, who shall count the same in open session, and having stated the result of the count in writing, shall sign the same and hand it to the chairman, who shall an- nounce the result to the meeting. | Certificate of election. Sec. 4. A report of the proceedings of the meet- ing shall be made in writing, signed by the chair- man and secretary, and verified by them, and de- livered to the county judge, who shall thereupon issue to each person chosen a certificate of his election, and shall also issue an order requiring that all books, papers, and all property and effects be immediately delivered to the officers elect; and the petition and report, indorsed with the date and fact of the issuance of such certificate and order, shall be delivered to the county clerk, to be by him filed in his office, and thereafter the per- sons thus elected officers shall be the duly elected officers, and hold office until the next regular an- nual meeting, unless removed under the pro- visions thereof. Fees of county clerk. Sec. 5. For all services in these proceedings the county clerk shall receive ten dollars on the issuance of the notice and ten dollars on the is- suance of the certificates. Sec. 6. All acts or parts of acts conflicting with this act are hereby repealed. Sec. 7. This act shall take effect immediately. APPENDIX. An Act for the bettor protection of the Ht«M-k- holders in corporations formed under tin- InwH of the State of California for the puriMjM- of carrying,' on and conducting' tlie buslneKK of mining. [Approved March 30, 1874; 1873-1. sr,);. j j § 1. Books— Keeping open to Inspection — Posting monihly ( balances. I § 2. Examination of grounds. I § 3. Penalty. I Books of mining corporations. I Section 1. It shall be the duty of the secretary ! of every corporation formed for the purpose of j mining, or conducting mining in California, to \ keep a complete set of books showing all receipts ^ and expenditures of such corporation, the sources " of such receipts, and the objects of such e.xpend- !^ itures. and also all transfers of stock. All books and papers shall, at all times during busin»'ss hours, be open to the inspection of any bona tide stockholder; and if any stoclcliolder sliall at any ![ time so request, it shall l)e tlie duty of the secre- tary to attend at the othce of said company at least one hour in the day out of regular business hours, and exhibit such l>ooks and papers of ihe ^company as such stockholder may desire, who shall be entitled to be accompanied by an expert; jind he shall also be entitled to make copies or ex- tracts from any such books or papers. Any stock- holder, may at reasona]>le hours, have permission to examine such mining i)rop(M-ty. jind he shall be entitled to be accompanied by an expert to ex- i amine such property, to take samples, and to nmke I such other examination as lie m:jy deem neees- snry. It shall be the duty of the directors, on the second Monday of each .and every month, to cause 808 APPENDIX. to be made au itemized account or balance sheet for the previous month, embracing a full and com- plete statement of all disbursements and receipts, showing from what sources such receipts were de- rived, and for what and to whom such disburse- ments or payments were made, and for what ob- ject or purpose the same were made; also all in- debtedness or liabilities incurred or existing at the time, and for what the same were incurred, and the balance of money, if any, on hand. Such ac- count or balance sheet shall be verified under oath by the president and secretary, and posted in some conspicuous place in the ofiice of the com- pany. It shall be the duty of the superintendent on the first Monday of each month, to file with the secretary an itemized account, verified under oath, showing all receipts and disbursements made by him for the previous month, and for what said disbursements were made. Such ac- count shall also contain a verified statement show- ing the number of men employed under him, and for what purpose, and the rate of wages paid to each one. He shall attach to such account a full and complete report, under oath, of the work done in said mine, the amount of ore extracted, from what part of mine taken, tlie amount sent to mill for reduction, its assay value, the amount of bullion received, the amount of bullion shipped to the office of the company or elsewhere, and the amount, if any, retained by the superintendent. It shall also be his duty to forward to the office of the company a full report, under oath, of all discoveries of ores or mineral-bearing quartz made in said mine, whether by boring, drifting, sinking, or otherwise, together with the assay value there- of. All accounts, reports, and correspondence from the superintendent shall be kept in some conspicuous place in the office of said company, and to be open to the inspection of all stockhold- APPENDIX. an ers; provided, that this section shall apply only to • miniuj; corporations whose stock is list«'(l and of- fered for sale at public exchange, and shall not apply to miuinj; corporations whose stock is not listed in the public exchauj,'e, and Is not ofTored ,for public sale. LAuiended February lit;. 1897; iStats. 1S97, p. 38.] I'Exa mi nation of ^'rounds. ; Sec. 2. Any bona tide stockholder of a corp<»ra- (tion formed under the laws of this State for the rpurpose of mining', shall be entitled to visit, nc- [companied by his expert, and examine the mine pr mines owned by such corporation, and every opart thereof, at any time he may see lit to make inich visit and examination: and when such stock- •lolder shall make application to the president of '3uch corporation, he shall immediately cause the 'secretary thereof to issue and deliver to such ap- plicant an order, under the seal of the corporation, iirected to the superintendent, commany resolu- :ion, duly passed at any regularly called stock- lolders' meeting. The certilicate of the secretary )f any mining corporation reciting such ratiliea- ion at a stockholders' meeting, or the names of Itocl-cholders with the aniount of stock lield by kicli. and the total stock outstanding. signe character of the franchise or privilege pr«»- jed to be granted, the term of its continuance. 1 if a street railroad, the route to be traversed; t sealed bids or tenders will be received up to ertain hour on a day named therein, and a fur- slatcment that no bids will be received of ingle sum or amount stated, but that all bids St be for the payment in lawful money of the Ited States of a stated per cent, of the gross lual receipts of the person, partnership, or cor- ation. or other authority to whom the fran- ie is awarded, arising from its use. operation. 816 APPENDIX. or possession. No percentage shall be paid for the first five years succeeding the date of the fran- chise, but thereafter such percentage shall be pay- able annually, and shall in no case be less than three per cent per annum upon such gross re- ceipts, the franchise to be forfeited by failure to make the payments stated in the bids upon which the award was made; provided, the board of su- pervisors, board of trustees, common council, or other governing or legislative body may provide as a condition of such franchise that the payments of said percentage shall begin at any time less than five years after the franchise is granted, if such franchise is a renewal, or substantially a re- newal, of a franchise already in existence. After the expiration of the time stated in the advertise- ment up to which sealed bids or proposals will be received, the board or other governing or legisla- tive body herein mentioned, must meet in open session and open and read the tenders or bids. The franchise or privileges must then be awarded to the highest bidder; provided, however, that nothing in this section shall affect a special priv- ilege, granted for a shorter term than two years: and provided further, that the governing power may reject any or all bids. And provided further, that unless the bidder shall file with his bid n bond to such county, city and county, city, town or district, with at least tAvo good and sufficiem sureties, to be approved by such board or othei governing or legislative body in a penal amoun to be by it prescribed and set forth in the adver tisement for bids, conditioned that such bidde shall well and truly observe, fulfill, and perforii each and all of the terms, conditions, and obli gations of such franchise, in case the same shal be awarded to him, and that in case of any breac' of condition of such bond, the whole amount of th penal sum therein named shall be taken and deemee nuide ui>on such bid, althouprh the same may l)e the hluheHt, but such franchise may be awarded to the next highest bidder, who shall have complic*! with this proviso, or. in the discretion of such board, or other jroveruingr or leirislative body, all bids may be set aside and rejected, and new bids adver- tised for. Sec. 2. No franchise now existing', or which may hereafter be granted, shall be renewed by the board of supervisors, board of trustees, com- mon council, or other governinj? or leirislative body a])ove described, nor shall the extension or re- newal of the same be advertised or offered f(»r sale by such groverninji: or lejzfislative body until within one year prior to the date of the expira- tion of the existing franchise, unless the existing i franchise is first surrendered by the holders there- |0f; provided, no franchise can be surrendered I without the consent of the board of supervisors. • board of trustees, common council, or other pov- ierning or legislative body of the city and county, (City, or town, granting such franchise. And pro- vided further, that on the application of the imayor, or a majority of the board of supervisors, board of trustees, common council, or other gov- erning or legislative body above described, it shall be the duty of the attorney general to sue for a forfeiture of any franchise granted by such gov- erning or legislative body, alleging in such suit noncompliance with the terms of the franchise. : Sec. 3. Any member of nny board of super- V'lsors. common council, or other governing or leg- islative body of any city and county, city, or town, of this State, who, by his vote, violates or nt- !tempts to violnte the provisions of this act, or any 5f them, sh.'ill be guilty of a misdemeanor and of Civ. Code— 69 818 APPENDIX. malfeasance in office, and be deprived of his office by the decree of a court of competent jurisdiction, after trial and conviction. Sec. 4. All acts and parts of acts in conflict with this act are hereby repealed. An Act to confirm, ratify, and make valid or- dinances heretofore passed by the trustees, council, or other body intrusted with the gov- ernment of any incorporated city, city and county, or town, giving authority and permis- sion to propel cars upon railroad traclis laid through the streets and public highways of such incorporated city, city and county, or town, by electricity. [Approved February 25, 1891; Stats. 1891, p. 12.] Section 1. In all cases where, prior to the pass- age of this act, authority to lay railroad traclvs through streets or public highways of any incor- porated city, city and county, or town, has been obtained for a term of years, not exceeding fifty, from the trustees, council, or other body to whom was intrusted the government of the city, city and county, or town, and permission has been granted by such governing body to propel cars upon such tracks by electricity, such authority and permission shall be, and shall be held and deemed, as valid and legal as the same would have been if, at the time of the obtaining thereof, section four hundred and ninety-seven of the Civil Code had expressly declared that permission might be given to propel cars upon such tracks by electricity, as well as by horses, mules, or wire ropes running under the streets and propelled by stationary steam engines; provided, that all such APPENDIX. n> permissions or franchises herotoforo j;ranttMl hIjuU be subject to tlie provisions of tlie laws of tlilM State applicable to street railroads in general, and subject to the same re;,'ulati<)ns from city.' city and county, and town authorities as if the said franchises were hereafter txranted. Sec. 2. ThiB act shall take elTect and bo in force from and after its pas.sage. An Act to enable railroad companies to complete their railroads. [Approved April 1, 1878; 1877-8, 044.] Authorizing construction of railroads. Section 1. Every railroad company heretofore organized under the laws of this State, and which has completed a portion of its road prior to the passage of this act, is hereby auth<»rized and em- pov.ered to complete its road as described in its articles of incorporation, notwithstanding it may not have begun the construction of its road within two years after filing its original articles of in- corporation, and notwithstanding it may not have completed and put in operation five miles of its road each year thereafter. Sec. 2. This act shall tal, ISDT.J rbe People of the State of Calif oruia, rcpreseuteil iu Senate and Assembly, do enact as billows: Section 1. All railroads operated iu this Slate tvhose lines of road are wholly constructed at an elevation of tive thousand ft-et, or uiure, above the evel of the sea, shall only be required to maintain ind operate their roads, or to run passen};er or Lrei^'ht cars thereon, between the lifleentli day of May, and the fifteenth day of October in each rear. (i.n Act to compel railroad corporations, or Indi- viduals owning railroads, to operate their roads. [Approved April 15, 1880; 1880, 43 (Ban. ed. 205). J Operation of railroads, or forfeiture. Section 1. From and after the completion of iny railroad, or the completion of such portion :hereof capable of being operated, it sliall be the iuty of the corporation, or individual owning the jame, to operate it; and upon the failure of said corporation or individual so owning said road to ceep the same, or any part thereoi". in full opera- ion for the period of six months, its or his right to >perate tlie same in whole or in part, as the case Inay be, shall be forfeited; and the lands occupied or the purposes of its or his road, so far as the ame shall not be operated, shall revert to the riginal owners, or their successors In Interest. A 822 APPENDIX. railroad shall be deemed to be in full operation when one passenger train, or one mixed train, is run over it once each day in each direction, and a sufficient number of freight trains to accommodate the traffic on said road. Prevention of operation. Sec. 2. This act shall not be construed to apply- to a case where the operation of the road is pre- vented by the act of God, nor to a case where the operation of said road, together with its branch or trunk lines, does not yield income sufficient to de- fray the expenses of maintaining and operating the same in connection with its said branch or trunk lines. Duty of railroad commissioners. Sec. 8. The railroad commissioners of the State of California shall have the power to examine and determine the question whether said road, to- gether with its said branch and trunk lines, does or does not yield income sufficient to operate the same. Sec. 4. This act shall take effect immediately. An Act to create the office of commissioner of transportation, and to define its powers and duties; to fix the maximum charges for trans- porting passengers and freights on certain rail- , roads; and to prevent extortion and unjust dis- j' crimination thereon. [Approved April 1, 1878; 1877-8, 969.] This act, which repealed the previous act of sim- ilar character of April 3, 1876, Stats. 1875-6, 78S, was superseded by the operation of the constitu- tion adopted in May, 1879. The following act of APPENDIX. m 1880 M-as intended to pnt the provisions of the constitution in n'tcienee to tli«' sul>j<'(t lnt(» oihtu- tiou. An Act to ortranizc and delinr tlu' powers of the board of railroad commissioners. [Approved April 15, 1880; 1880, 45 (Ban. ed. HOT).] 5 1. Board of railroad commissioners. 5 L*. Salaries — Expenses. ] 3. Free passes. 5 4. Duty of attorney general and district attorney. S 5. Location of office— Sessions of board. J 6. Seal. 5 7. Powers of board. I 8. Powers of officers § 9. When may sue. I 10. Complaints. \ 11. Rates. \ 12. Jurisdiction. I 13. Demands from companies. I 14. Definition. \ 15. Salaries, how paid. "Board of railroad commissioners." Section 1. The three persons elected railroad commissioners, pursuant to the provisions of sec- tion twenty-two of article twelve of the constitu- tion of this State, constitute, and shall be known and desijjnated as. the "Board of Bailroad Com- missioners of the State of California." They shall have power to elect one of tlioir number president Df said board, to appoint a secretary, to appoint a bailiff, who shall perform the duties of janitor; ilso, to employ a stenographer, wheni'ver they may deem it expedient. |5alaries— Expenses. j Sec. 2. The salary of each commissicMier shall loe four thousand dollars per annum: the salary of ■ he secretary shall be twenty-four hundred dollars ')er annum; the salary of the bailiff shall be twelve 824 APPENDIX. hundred dollars per auniim, such salaries to be paid by the State of California in the same man- ner as the salaries of State officers are paid. Thej stenographer shall receive a reasonable compensa- tion for his services, the amount to be fixed by th( State Board of Examiners, and paid by the State. Said commissioners, and the persons in their offi- cial employment when traveling in the perform- ance of their official duties, shall have their travel^ ing expenses other than transportation paid, the amounts to be passed on by the State Board of Ex- aminers, and paid by the State. Said Board of Railroad Commissioners shall be allowed one hun- dred dollars per month for office rent, and fifty dollars per month for fuel, lights, postage, express- age, subscription to publications upon the subject of transportation, and other incidental expenses, to be paid by the State; provided, that all moneys remaining unexpended at the expiration of each fiscal year shall be returned to the State treasury. Said board is further authorized to expend not to exceed four hundred dollars for office furniture and fixtures, to be paid by the State. The State shall furnish said board with all necessary station- ery and printing, upon requisitions signed by the president of said board. Free passes. Sec. 3. Said commissioners, and the persons in their official employment, shall, when in the per- formance of their official duties, have the right to pass free of charge on all railroads, steamers, ships, vessels, and boats, and on all vehicles em- ployed in or by any railroad or other transporta- tion company engaged in the transportation of freight and passengers within this State. Duties of Attorney General and District Attorney. Sec. 4. It shall be the duty of the Attorney Gen- eral, and the District Attorney in every county, on APPENDIX. Oi FLMiiiest of said Ix.anl, to iiistltuti' ami proHoc'Utc. and to appear and to defend for said boanl. in any and all suits and proceedinjjs wljioh they or either of them shall be re(iuested by said board to Insti- tute and prosecute, and to appear in all stilts and proceedin.us to which the board is a party, shall have precedence over all other business except criminal business; provided, that sai.l Section 1. It shall be unlawful for the board <>f supervisors of any county or city and county, within the ninety days next preceding; the date «»f holding a general election, and within the sov enty days next immediately following, including the day of holding such general election, to au- thorize or pass any ordinance, order, or resolution granting to any person or persons, or association of persons, or corporation whatsoever, any privi- lege or franchise for the construction, extension, or operation of anj' street railroad, or extension of time for the construction or operation of any stre»'t railroad, over or upon any or part of any stn-rt. road, highway, squares, or parlc within the county or city and county. Sec. 2. Any franchise or privilege granted, or attempted to be granted, in violation of. or con- trary to, the provisions of this act sliall be abso- lutely void and of no effect. Sec. 3. All acts or parts of acts in contiict wiili this act are hereby repealed. Sec. 4. This act shall t.-il^e efTect and W in fon-e from and after its passage. APPENDIX. An Act requiring city, city and county, or town authorities to exact and require from persons or corporations seeking permission and author- ity to lay raih'oad tracks through streets or public highways of any incorporated city, city and county, or town, a satisfactory promise and undertaking to permit and allow mail car- riers in the employ of the United States gov- ernment at all times, while engaged in the ac- tual discharge of duty, to ride on the cars of such railroad without paying fare; and to make such promise and undertaking a condition pre- cedent to the granting of such permission and authority by such governing board. [Approved February 27, 1893; Stats. 1893, 44.] Section 1. In all cases hereafter, where applica- tion is made to the city, city and county, or town authorities, or to the trustees, council, or other body to whom is intrusted the government of the city, city and county, or town, for permission and authority to lay railroad tracks through streets or public highways of any incorporated city, city and county, or town, such authorities, before granting such permission and authority, in addition to the terms and restrictions which they are now, by law, authorized to impose, must exact and require from the persons or corporation asking or seeking such permission and authority, a satisfactory promise and undertaking to permit and allow mail carriers in the employ of the United States gov- ernment, at all times while engaged in the actual discharge of duty, to ride on the cars of such rail- road without paying any sum of money whatever for fare or otherwise; and such governing body of city, city and county, or town authorities must APPENDIX. make such promise and uinlertakiii;; on the part of such persons or corporations a conditiiin preccKient to the granting of such permission and authority to lay railroad tracks throujjh streets or public highways of such city, city and county, or town; provided, that all such permissions an."►.] § 1. Fee allowed. § 2. Duty 01 secretary. § 3. Examination of secretary and books. § 4. Perjury. § o. Disposal of moneys collected. Fee allowed. Section 1. It shall be lawful for the secretary of every corporation in the State of California to demand and receive of any i)erson requiring' tne issue to him of any certilicate of stock in such corporation, a fee of ten cents in coin for each cer- titlcate, whether such certiticate be the orlirinal Is- sue or an issue on transfer, and such certilicate shall not be delivered by the secretary until such fee shall be paid. Duty of secretary. Sec. 2. It shall be the duty of tlie secretary of every such corporation, on the lirst Monday in I 834 APPENDIX. January, April, July, and October, of each year, to make returns, under oatli, to the tax collector, or otticer citing as tax collector, of the number of certificates issued by the corporation of which he is secretary, during the quarter preceding, and pay to such tax collector the sum of ten cents in coin for each and everj- certificate so issued by said corporation, except that in the city and county of San Francisco such returns and payments shall be made to the license collector, or officer engaged in the collection of licenses in said city and county. Examination of secretary and books. Sec. 3. Such tax collector, or license collector, is hereby authorized and empowered to examine such secretary, under oath, as to the truth of said re- turns, and to examine, if necessary, the books of such corporation, so far as they relate to the trans- fer of stock, or issue of certificates, and if the returns are not correct, then he is authorized to commence an action against such corporation in any court of competent jurisdiction in the name of the people of the State of California, for a pen- alty of one hundred dollars for each certificate is- sued by such corporation and not so returned un- der oath, and several penalties may be joined in such action. Perjury. Sec. 4. Any persons violating the provisions of section two of this act shall be deemed guilty of a misdemeanor, and false swearing to any return provided in section two shall be deemed perjury. Disposal of moneys collected. Sec. 5. All moneys collected under the provi- sions of this act shall be paid by such tax collector, or license collector, into the county treasury, and shall become a part of the general fund, or if there shall in any county be no general fund, then the APPENDIX. ffg auie i-liall bocoiiie a i)arl oi siKh liiml uk the oai'd of super visors may direct. Sec. U. This act shall lalie eir«'cl on the lirhi louday in April, li>T8. This act was repealed by act approved March 1, IS'J'i-. Stats., c. 180. TELK(aLVPlI CUMl'AMKS. Act ^'raiitiuj? franchise for telej?raph comi)auy etweeu Asia and America, see Stats. 1871-2, U7. TRADEMARKS. n Act to protect the owners of bottles, boxes, siphons, and keg:s nseil in the sale of soda wa- ters, mineral or aerated waters, porter, ale, cider, ?:in;;er ale. millv, cream, small beer, lajxer beer, weiss beer, beer, white beer, or other bev- erages. [Approved March 31, 1891; Stats. 1801. 217.] 1. Doscription to be filed with county clerk. 2. Unlawful acts. 3. Use presumptively unlawful. i. Issue of search-warrants— Punishment. 5. Refiling of marks not required. Section 1. Any and all persons enfra.iret less than twenty days nor more tliun one year, • by a fine of not less than one dollar nor more lau five dollars, for each and every bottle, box, phou, and kop: so filled, sold, used, dlsposeil of. )u^'ht or tratlicked in, or by both such line and iprisonment. in the discretion of the magistrate 'fore whom the offense shall be tried. Sec. 3. The use by any person other tlian the jrson or persons, corporation or cori)oratiou8, hose device, name or marli shall be or sliall have »en upon the same, without such written consent • purchase, as aforesaid, of any such mark or stinjruished bottle, box, siphon, or ke^, a de- riptiou of the name, mark, or device whereon lall have been filed and published, as herein pro- ded, for the sale therein of soda waters, mineral aerated waters, porter, ale, cider, j,'inj?er ale. ilk, cream, beer, small beer, laj;er beer, weiss (er, white beer, or other beveraj;es, or any article merchandise, medicines, compounds, or prepara- )ns, or for the furnishing of such or similar bev- ages to customers, or the buying, selling, using, sposing of, or trafficking in of any such bottles, >xes, siphons, or kegs, by any person other than id persons or corporations having a name, mark. device thereon, or such owner without such ritten consent, or the having by any junk dealer, dealer in second-hand articles, possession of any ich bottles, boxes, siphons, or kegs, a description the marks, names, or devices wherein shall have jen so filed and published as aforesaid, without ich written consent, shall and is hereby (UnMared be presumptive evidence of the said unlawful le, purchase, or tralfic in of such bottles, boxes, phons. or kegs. Sec. 4. Whenever any person, i)ersons, or corpo- tions, mentioned in section one of this act, or his r, its. or their agent, shall make oath before any agistrate that he, she. or It has reason to believe, 838 APPENDIX. and does believe, that any of his, her, or their bot- tles, boxes, siphons or l^egs, a description of the names, marks, or devices whereon has been so filed and published, as aforesaid, are being unlawfully used or filled, or had by any person or corporation manufacturing or selling soda, mineral, or aerated waters, porter, ale, cider, ginger ale, milli, cream, small beer, lager beer, weiss beer, white beer, and other beverages, or that any junlv dealer, or dealer in second-hand articles, vender of bottles, or any other person or corporation, has any such bottles, boxes, siphons, or kegs, in his, her, or its posses- sion, or secreted in any place, the said magistrate must thereupon issue a search warrant to discover and obtain the same, and may also cause to be brought before him the person in whose possession such bottles, boxes, siphons, or kegs may be found, | and then inquire into the circumstances of such' possession; and if said magistrate finds that such; person has been guilty of a violation of section I two of this act, he must impose the punishmenti therein prescribed, and he shall also award pes-, session of the property taken upon such search-j warrant to the owner thereof. { Sec. 5. Any person or persons, corporation 0^ corporations, that has or have heretofore filed in, the offices mentioned in section one of this act aj description of the name or names, marks or de-j . vices, upon his, her, their, or its property thereir, . mentioned, and has caused the same to be pubj ! lished according to the laws existing at the tim(|;, of such filing and publication, shall not be rejt quired to again file and publish such descriptioi; r;; to be entitled to the benefits of this act. \i Sec. 6. All acts and parts of acts inconsistent-*'' herewith are, for the purposes of this act, hereb repealed. APPENDIX. UMN('()Kr()KATi:i> .sun 1:1 IKS. See ante, Co-operative Associations. WAREHOUSES AND AVIIAKFINCJKUS. 1 Act in relation to wareliou.se and whartlnKer receipts, and other matters pertaining tliereto. [Approved April 1, 1ST8; 18TT-S, 1>4'.».] 1. Issuance of receipts for goods. 2. Issuing of receipt upon goods as security. 3. Second receipts, issuance of. 4. Removal of goods when receipt issued. 5. Receipts classed. 0. Receipts to be indorsed. iff. No delivery except on order. 9. Non-negotiable receipts, how marked. 9. Loss by fire. A. Felony. 'snance of receipt for good.s. 'Section 1. That no warehouseman, wharfiu>;er, other person doin^ a stora^^e business, shall Is- e any receipt or voucher for any goods, wares, erchandise, grain, or other produce or commod- 'r, to any person or persons purporting to be the rner or owners thereof, unless such goods, wares, 'erchandise, grain, or other produce or commod- |r, shall have been bona tide received Into store 1' such warehouseman, wharfinger, or other i>er- n. and shall be in store and under his control tlie time of issuing such receipt. isuing of receipt upon goods as security foi i money loaned. See. 2. That no warehouseman, wharfinger, or her person engaged in the storage business shall u" any receipt or other voucher upon any goods. 840 APPENDIX. wares, merchandise, grain, or other produce or commodity, to any person or persons, as security for any money loaned, or other indebtedness, un- less such goods, wares, merchandise, grain, or other produce or commodity, shall be, at the time of issuing such receipt, the property of such ware- houseman, wharfinger, or other person, shall be in store and under control at the time of issuing such receipt or voucher as aforesaid. Second receipts not to be issued, except, etc. Sec. 3. That no warehouseman, wharfinger, or other person as aforesaid, shall issue any second receipt for any goods, wares, merchandise, grain, or other produce or commodity, while any former receipt for any such goods or chattels as aforesaid, or any part thereof, shall be outstanding and un- canceled. Removal of goods when receipt is issued. Sec. 4. That no warehouseman, wharfinger, or other person as aforesaid, shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control, any goods, wares, merchan- dise, grain, or other produce or commodity for which a receipt shall have been given as aforesaid, without the written assent of the person or per- sons holding such receipt or receipts plainly in dorsed thereon in inli. Receipts classed. Sec. 5. Warehouse receipts for property storeoj shall be of two classes: 1. Transferable or negoji tiable; and, 2. Nontransferable or non-negotiable Under the first of these classes, all property shal be transferable by the indorsement of the party P whose order such receipt may be issued, and sucl indorsement of the party shall be deemed a vall( transfer of the property represented by such rt ceipt, and may be in blanli or to the oi der of another. All warehouse receipts fc I APPENDIX. 841 property stored shall distinctly state on their face for what they are issued, as also the brands and distinjruisbing marks; and in the case of grain, the number of sacks, and number of pounds, and kind of grain; also the rate of storage per month or season, charged for storing the same. Receipt to be indorsed. Sec. 6. No warehouseman, or other person or persons, giving or issuing negotiable receipts for goods, grain, or other property on storage, shall de- liver said property, or any part thereof, without in- dorsing upon the back of said receipt or receipts, in inlc, the amount and date of the deliveries. Nor shall he or they be allowed to make any offset, claim, or demand other than is expressed on the face of the receipt or receipts issued for the same, when called upon to deliver said goods, merchan- dise, grain, or other property. No delivery except on order. Sec. 7. No Avarehousemau, or person or persons doing a general storage business, giving or issu- ing non-negotiable or nontransferable receipts for goods, grain, or other property on storage, shall deliver said property, or any part thereof, except upon the written order of the person or persons to whom the receipt or receipts were issued. Non-negotiable receipts, how marked. Sec. 8. All receipts issued by any warehouse- man or other person under this act, other than negotiable, shall have printed across their face, in bold, distinct letters, in red ink, the words "non- negotiable." Loss by fire. Sec. 9. No warehouseman, person or persons do- ing a general storage business, shall be responsible for any loss or damage to property by fire while in his or their custody, provided reasonable care and Civ. Code— 71 842 APPENDIX. vigilance be exercised to protect and preserve the same. Felony. Sec. 10. Any warehouseman, wharfinger, person or persons, who shall violate any of the foregoing provisions of this act, is guilty of felony, shall be subject to indictment, and upon conviction, shall be fined in a sum not exceeding five thousand dol- lars ($5,000), or imprisonment in the State prison of this State not exceeding five years, or both. And all and every person aggrieved by the viola- tion of any of the provisions of this act may have and maintain an action against the person or per- sons violating any of the foregoing provisions of this act, to recover all damages, immediate or con- sequent, which he or they may have sustained byj reason of any such violation as aforesaid, before! any court of competent jurisdiction, whether suchj person shall have been convicted under the act orj not. I APPENDIX. m WA'ri:K C().MI'AMi;s. Irrigation: See General Laws, titU- IrriK'atlou. An Act to reirnlatc and control the sal.-. r«'ntal. and distribution of appr p iated w.iter In thl- Stn'e. other than in any city, city and county, or town therein, and to secure the ri;;hts of way for the conveyance of such water to the places of use. [Approved March I'J, 3885; 1SS5, 93.] § 1. Use of appropriated public water. § 2. Supervisors may fix rates. § 3. Petition for fixing rates, § 4, Hearing of petition— Value of waterworks. § 5. Rules to be observed in fixing rates. § 6. Changing rates. 5 7. Record of rates to be published. § 8. Water to be furnished at rates fixed. § 9. Penalty for excessive charges. § 10. To sell to all persons. § 11. Condemning land for right of way. § 11^^. Contracts in existence how afYected. Use of appropriated water public. Section 1, The use of all water now appropri- ated, or that may hereafter be appropriated, for irriiration, sale, rental, or distribution, is a public use, and the riprht to collect rates or compensation for use of such water is a franchis«', :ind e.xct'pt when so furnished to any city, city an«l county, or town, or the inliabitants thereof, shall be rc}ju- lated and controlled in the counties of this State by the several boards of supervisors thereof, in the Imanner prescribed in this act. 'Supervisors may fix rates. ' Sec. 2. The several boards of supervisors of this [State, on petition and notice as provided in sec- Ition three of this act, are hereby auth..ri/.(Ml and «44 APPENDIX. required to fix and regulate the maximum rates at which any person, company, association, or cor- poration, having or to have appropriated water for sale, rental, or distribution in each of such coun- ties, may and shall sell, rent, or distribute the same. Petition for fixing rates. Sec. 3. AThenever a petition of not less than twenty-five inhabitants, who are tax-payers of any ervisorK of this State, the same may be estal)lished anew, or abrogated in whole or in part by such board, to take elTect not less than one year next after kucIi first establishment, but subject to said limitallou of one year, to take effect immediately in the fol- lowing manner. Upon the written i)etition of in- habitants as hereinbefore provided, or upon the written petition of any of the persons, companies, associations or corporations, the rates and compen- sations of whose appropriated waters have already been fixed and regulated, and are still subject to such regulation by any board of supervisors of this State, as in this act provided; and upon the like publication or posting of such petition and notice, and for the like period of time as hereinbefore pro- vided, such board of supervisors shall proceed anew, in the manner hereinbefore provided, to fix ind establish the water rates for such person, com- pany, association, or corporation, or any number of them, in the same manner as if such rates had Qot been previously established, and may, upon the petition of such inhabitants, but not otherwise, librogate any and all existing rates theretofore !?stablished by such board. All water rates, when (ixed and established as herein provided shall be in [force and effect until established anew or abro- '?ated, as provided in this act. .Record of rates to be published. 1 Sec. 7. Each board of supervisors (»i lius Mate, jivhen fixing and establishing, or fixing and estab- ishing anew, or abolishing any previously estab- ,lshed water rates, as hereinbefore provided, shall •aiise a record to be made thereof In the records 848 APPENDIX. of such board, and cause the same to be published or posted in the manner and for the time required for the publication or posting of said petitions and notices. Water to be furnished at rates fixed. Sec. 8. Any and all persons, companies, associa- tions, or corporations, furnishing for sale, rental, or distribution, any appropriated waters to the in- habitants of any county or counties of this State (other than to the inhabitants of any city, city and county, or town, therein), shall so sell, rent, or dis- tribute such waters at rates not exceeding the es- tablished rates fixed and regulated therefor by the boards of supervisors of such counties, or as fixed and established by such person, company, associa- tion, or corporation, as provided in this act. Penalty for excessive charges. Sec. 9. If any person, company, association, or corporation, whose water rates for any county of this State have been fixed and regulated by a board of supervisors, as in this act provided, and while such rates are in force, shall collect, for any appropriated water, furnished to any inhabitant of such county water rates in excess of such estab- lished rates, shall be liable, in an action by any such inhabitant so aggrieved, to a recovery of the whole rate so collected, together with actual dam- ages sustained by such inhabitant, with costs of suit. , i To sell to all persons. j Sec. 10. Every person, company, association,, and corporation, having in any county in the State (other than in any city, city and county, or town therein) appropriated waters for sale, rental, or distribution, to the inhabitants of such county, up- on demand therefor, and tender in money of such established water rates, shall be obliged to sell, rent, or distribute such water to such inhabitants I APPENDIX. SH at the established rates regulated and fixed there- for, as in this act provided, whether so flxt-d by the boiird of supervisors or otherwise, to tlie ex- tent of the actual supply of such appropriated wa- ters of such porsou, companj', association, or cor- poration, for such purposes. If any pi-i-son. com- pany, association, or corporation, havinj; water for such use, shall refuse compliance witli such de- mand, or shall nej^^lect, for the period of live days after such demand, to comply therewith to the extent of his or its reasonable ability so to do, shall be liable in damaj:os to the extent of the ac- tual injury sustained by tlie person or party mak- inc: such demand and tender, to be recovered, with costs. Condemning land for right of way. Sec. 11. Whenever any person, company, asso- ciation, or corporation shall have acquired the right to appropriate water, or shall have acquire1 the performance of such duties. bntrol of use of water prohibited. [Sec. 5. No person, company, or corporation sell- [g water for irrigation sliall be permitted to ex- fcise any control as to the use of the water after ji delivery to the purchaser. I'Sec. 6. This act shall take effect immediately. INDEX. ABANDONED GOODS, finder oi thin- iw.t lM)uncl to keep it for o^^■^('^. § ISTl. ABANDONMENT, of luisbaiKl, relieves from duty of support, § 17"). of cliild, evidence of relinquishment of control, § 197. of homestead, §§ 1243, 1244. of ship by ship-master, § 2940. of ship, duties of ship-master on. § 2911. in marine insurance. See Insurance, Marine. ABATEMENT, of lejracies, § VMV2. of nuisances, claim for damages. § 3484. of public nuisance, by whom, S 3494. of public nuisance, how, § 3495. of private nuisance, when, § 3502. ABDUCTION, forbidden, § 49. ABLE AND WILLING. See Performance. ABSENCE, effect on marriage, §§ 01, 97, 98. temporary, wlien desertion, § 100. missing persons, act relating to See vol. of General Laws, title, Missing Persons. ACCEPTANCE, of acconl, satisfaction. § 1523. of benetit of transaction. ettVct, § 15i>'J. of partial performance, § 1741. of rent, renews lease, when, § 1945. of guaranty, notice when necessary, § 2795. of principal, waives interest, when. § 3290. of abandonment. See Insurance. of bill of exchange. See Bill of Exchange. of proposal to contract. See Contract, i ACCESSION, property may be acquired by. § 1000. To Keal I'ropertv, by tixtures, § 1013. by alluvion, § 1024. ownership of deposits, § 1014. by removal of bank, § 1015. by accumulation of earth, § 1016. by change of river's course, § loli». To Personal I'roperty, bv union of several things, § 1025. by admixture of materials, § 1028. by formation of new tilings, § 1020. by workmanship, § 1030. Civ. Code.- 854 IXDEX. ACCESSION— Continued. To Personal Property, by willful trespass, § 1031. ACCESSORY, passes by transfer of principal thing, §§ 1084, 3540. lien is, § 2909. ACCIDENT, error in contract caused by, to be disregarded, § 1640. deposit by, must be accepted, § 1816. thing gained by, held in trust, § 2224. See Mistalie. ACCORD, defined, § 1521. effect, § 1522. acceptance of, satisfaction, § 1.523. of liquidated debt, § 1524. ACCOUNT, employee must render, § 1986. of voluntary interferer with property, § 2078. of trust, § 2237. partners to, § 2412. partner to, for certain profits, § 2438. ACCRETION. See Accession. ACCUMULATIONS, disposition of, § 722. void, when, § 723. certain allowed, § 724. directions concerning, void when, § 725. surplus in trust, when liable to creditors, § 859. allowances made out of, § 726. income. See Income. ACKNOWLEDGMENTS, declaration of marriage, § 77. inventory of separate property of wife, § 165. marriage-settlement contracts, § 178. contract of apprenticeship of alien minors, § 275. articles of incorporation, § 292. execution of power by married woman, § 898. consent to execution of power, § 907. instruments for record, § 1158. instruments evidencing judgment title for record, § 1159. letters patent recorded without, § 1160. who may take, in state, §§ 1180, 1181. deputy may take, § 1184. requisites, § 1185. foreign, who may take, in other states, § 1182. foreisrn. who may take, out of United States, § 1183. foreign, certificate of clerk to, effect of, § 1189. foreign, acknowledgment taken without the state, form of, § 1189. INDEX. ,^v. ACKNOWLKI )(;m i:\TS— CV)ntiiiu«Ml. marriod woinau, acknowltMlKinciit by. (f 1003, 1 J.o«i. mariit'd women, ackuowlodgnient bv. how ex- ecuted, § 1003. officer to indorse certificate, § IIRS. certificate of, by corporation. 5 lUMt. form of certificate, §§ llSD-l li»2. certificate of, by attorney in fact. 5 \VX2. seals and sisnaturos, § llO.'i. certificate of otticer on. §§ 11!»:{. 12(m». certificate of county clerk, where taken by jus- tice of the peace, § 111>4. subscribiuj? witness to l)e personallv known, § 119(5. witness to prove what, § 1197. handwritinjr proved, Avhen. § 119S. evidence must prove wliat, S 11(H.>. interpreter may ])e emidoyod. § Tjoi. officers may punish for contempt. § l*2i>l. action to correct error in certifying'. § TJ(>2. acts legalizing defective acknowleS. I ACQUIESCENCE, removes objections, §3516. , ACT, title of establisbin;; the Civil Code. S 1. how cited, § 21. 1 ACTIONS, particular action. See Particular Title. ! commenced previous to taking effect of Code, not arfecte. i» excuses non-perroniiMncc. § l.")!!. I innkeeper not resi)onsil)le for. § IS.'.O. j carrier not resi>onsil)le for, § 2im. no one responsil»le for, § 3r»2(>. Al^EMPTION. See Wills. of lejracy, advancement or ;rift wlien deemed, § 1351 : ADMINISTRATORS. See Executors and Adndn- istrators. 856 INDEX. ADOPTION, of child. § 221. who may adopt, § 222. consent of wife, when necessary. § 223. consent of child's parents necessary, § 224. consent of child, when necessary. § 225. adoption of child from asylum without consent, § 224. proceedings, § 226. ludse's order, § 227. effect, § 228. effect on former relations of child, § 229. of illegitimate child, § 20. authorizing orphan asylums to consent to, § 224. ADULTERY, divorce srranted for, § 92. defined, § 93. legitimacy of issue of marriage divorced on ac- count of, §§ 144. 145. disposition of communitv propertv on divorce for, § 147. ADULTS, who are, § 27. compensation for support of adult child, § 210. ADVANCEMENTS, effect. § 1309. when deemed ademption, § 1351. constitutes part of distributive share, § 1395. when in excess or insufficient, effect, § 1396. what deemed, § 1397. value, how determined. § 1398. effect of, § 1309. effect when person advanced to dies before tes- tator, § 1399. ADVANTAGE, unfair, when fraudulent. § 1575. unfair, when evidence of undue influence, § 1575. trustee not to use influence to obtain, §§ 2228, 2231. partner must not obtain over copartners, § 1411. ADVERSE CLAIM, depositary to give notice to depositor of, § 1825. trustee to give notice to beneficiary of his ac- quisition of. § 2233. ADVERSE POSSESSION, owner of property in, may transfer his right, § 1297. property in, may be mortgaged, § 2041. AFFIDAVITS, of officers on filing articles of in- corporation. § 295. of publication of notice of sale of delinquent stock, § 348. I INDEX. g.y AFFIDAVITS— Continued. of inihlic.-ition cf iioticr of diaii;:!. of partner- sliip name, § L'-lTl. ^^cl^^.oV''^^^^" ^^ ^^^^^'^ ^^ spocial partnership. s Z4S4. of truth of inventory by assl^'nor for boneflt of CHMlitors. i< :'Ai\'2. 4S?AP/.P^-'?"t>:- ^^^ Majority. Ape of; Mlnorg. AGENCi. bee Attorney in Fact: Sul)a^'rnt. who may appoint, and who may be an. deflned. § 2295. parties to, defined, § 221)."). agents, general or special. § 21".t7. agency, actual or ostensible, § 221>8. actual, § 221 >1>. ostensible. § 2300. what authority may be conferred. § 2:>(M. agent may perform acts required of principal by Code, § 2oU.j. agent cannot have authority to defraud prin- cipal, § 2306. creation of, § 2.307. consideration unnecessary, § 2.308. form of authority, § 2309. agent to conform to his authority. § 2019. must keep his principal informed, *§ 2020. collecting agent, §2(t21. responsibility of subagent. § 2(>22. measure of agent's authority. ^ 2:11. '». actual authority, what. § 2;;i(i. ostensible authority, what. § 2."nT. agent's authority as to persons having notice of restrictions upon it, <5 2.'ns. agent's necessary authority. § 2;ill>. declarations of, when admissil)l«\ § 2319. declarations as to terms of authority, § 2.319. agem's power to dis()l>ey insirnctions. § 2320. autliority construed by specific rather th:in gen- eral terms. § 2321. exceptions to general autliority, § 2322. what included in authority to sell personal property, § 2323. what included in authority to sell real prop- erty. §2324. authority of general agent to receive price of property, § 2325. authoritv of special agent to receive price, § 2320.' 858 IN- DFX. AGENCY— Continued. principal, how affected by acts of agent within scope of authority, § 2330. principal, when bound by incomplete execution of authority, § 2331. notice to agent, when notice to principal, § 2332. obligation of principal when agent exceeds au- thority. § 2333. for acts done under merely ostensible author- ity, § 2.334. when exclusive credit is given to agent, § 2835. rights of person who deals with agent without knowledge of agency, § 2336. instrument intended to bind principal, § 2337. principal's responsibility for agent's negligence or omission. § 2338. principal's responsibility for wrongs willfully committed by agent. § 2339. warranty of authority, § 2342. damaaes for breach of warranty of authority of. § 3318. indemnity extends to acts of. § 2775. notice of dishonor, how given under, § 3149. ratification of agent's act, § 2310. ratification of part of transaction, § 2311. when ratification void, §2312. rescission of ratification. § 2314. agent's responsibility to third persons, § 2348. obligation of agent to surrender property to third person. § 2.344. agent not having capacity to contract, § 2345. agent's delegation of powers, § 2849. asrent's unauthorized employment of subagent, § 2350. subacent ris'htfullv appointed, represents prin- cipal, § 2351. termination of. § 2355. termination where agent has no interest, § 2356. of auctioneer. § 2362. of factor, § 2367. of ship-master, § 2373. of ship's manager, § 2388. ship's manaaer cannot borrow money without special authority, § 2-389. of general partner, § 2429. of partner in mines, authority, § 2519. agent's acts for insurer on abandonment, § 2726. INDKX. .50 .OKEEMKNT. Seo Conlr.i.i. .GlilCULTUKAL FAIR ('( )i:r( iKati, ,.\. Sce Con)()nitions. .GRICri/rUKAL LAM). liinitMti«,n on I.misos of § 717. .LIEXATION, lestraiiils on. when voiM. §§ 71 1. 71G. how lone: power of, may be suspendeil. § Tin. disposition of income durin;,' siiKpensi(»n of power of. § 7:->l>. of intermediate interest does not defeat future interest, § 742. suspension of power of. § 770. suspension of power of, by trust, §771. .LIENS, minor, apprentices'iiip of, ^ L'7L may hold proi)erty, § r)7L iuheritiuj^, wheu must claim or be l)arred. resident, may take by succession, § 1404. XIMONY, wlien court may j^rant, §§ I:i7-i:i9. security for, § 140. when may uot be .^ranted, § 142. out of what property j;ranted, § 141. lI>LT'VION. See Accession. J/rEUATlOX. See Revision. how contract may be altered, §S 17. 1»)08. of interests disposed of bv will, whvii revoca- tion of will. s§ rso'A, i::. of contract in dui)llcate, effect, § 1701. [ of thing: covered bv tire insurance, increasing risk, effect, § 27").-;' I of thing insured, uot increasintr risk, effect, I § 2754. of representation in insurance, § 2r»7('.. of obliiration exonerates truarantor. >:; 2S21. LTERXATIVE. future interest may be in, § CIXJ. obligation, right of selection under. § 144S. obligation, right of selection under, how lost, § i449. obligation, selection under, how made, § 1450. obligation, effect of nullity of one branch of, § 1451. p, negotiable instrument may be in, § rJOOO. MBIGUITY, in wills, how construe.l. § 1.T23. in contracts, how construed. S l.'MD. 830 INDEX. AMENDMENTS TO CODES, to Civil Code, effect of those of 1874, § 5. ANIMALS, corporations for insuring domestic, §286. corporations for improving breed, § 286. domestic, subject of ownership, § 655. vrild, how far subject of ownership, § 656. depositary of, must use what care, § 1834. compensation of depositary of, § 1853. borrower for use, must use great Ivindness, § 1887. protection of sheep against dogs, § 3341. lien in favor of owner of animal for propagat- ing purposes, p. 795, Stat. act to prevent combinations to obstruct sale of livestock, p. 705, Stat. ANNUITY, defined. § 1357. when due, § 1368. ANNULMENT, of indentures of apprenticeship, causes for, § 276. of marriage. See Divorce. APPEALS, from order distributing property on divorce, § 148. APPOINTMENT, of guardian by the court, §§ 243-244. of guardian by the court supersedes parent, §204. no person a'uardian of estate without. § 242. effect of power of, § 781. of trustee, how made, § 2287. of successor to trustee, duty of trustee con- cerning, § 2260. APPORTIONMENT of burden of servitude on par- tition of dominant tenement, § 807. of losses occasioned by collision of vessels, §973. of covenants, § 1467. ^ of consideration in case of prevention of per-l formance, § 1514. of hire. § 1935. of freightage, by contract, §§ 2140, 2141. of freightage, according to distance, § 2142. of liem § 2912. APPRAISERS, petition for appointment of, to ap- praise homestead. § 1245. petition to contain what, § 1246. appointment of. to assess value of homestead § 1249. oath, § 1250. INDEX. gjl LPPRAISERS-Continued. duties, § 1251. return, if V2~)2. fees, § 12.18. LPPKKXTlCi:SIITI». wlic may eiif.-r into. § L>»H. minors may be apprenticed, p. 708 et ro(i., Stat minors, l\v wlioni may be apprenliced. p. 708 et seq., Stat. executors may bind to, § 267. supervisors may bind to. § 208. town otticers may bind paupers to. § 2<;0. whose consent necessary to, and how jrlven, § 205. consent to, to be in writing:, § 2r><>. consent of minor necessary, p. 700. § ?>, Stat. a.i;e of apprentice, p. 712. § 12. Stat. indentures, p. 709. § 4 et seq.. Stat. what must be stated in indentures. § 270. conditions in indentures. §§ 271, 272. deposit of indentures, § 27.".. of alien minors, how affected, §§274, 275. obligations of masters, p. 711, § 9 et seq.. Stat. liability of master, p. 711 et seq.. Stat. money and clothes for apprentice, p. 711. § 10, Stat. complaint of apprentice ajrainst master, p. 712, § 13, Stat. treatment of apprentices, p. 711, § 10. Stat. liability of apprentice for nej^lect or miscon- duct, p. 711. § 11, p. 718. § 1(5. St.-it. enticinc: apprentice to run away or liarboriuL: liim a misdemeanor, p. 714, § 19, Stat. dissolution of apprenticeship by court, p. 713. § 17, Stat. discharge of apprentice, p. 712, § 14. Stat. removal of master from state, dis{'liarj;e of ap- prentice, p. 714. § 20. Stat. master quitting trade or business. dis('lKir;;e of apprentice, p. 712, § 14, Stat. costs, payment of on dissolution of apprentice- ship, p.' 713. § 17, Stat. ;PPU11TENANCES i>ass by transfer of land. 47(5. 1084, 3540. defined, § GG2. certain, deemed fixtures, § (501. to land, what, § 0(52. to ship, what, §901. 862 INDEX. APPURTENANCES-Continued. irrigation corporation, stocli in as an appurte- nance, § 324. ARBITRATION, partner cannot submit firm claim to, § 2430. agreement for, cannot be specifically enforced, § 3390. ASSESSMENT. See Corporations. by benefit societies, p. 724, § 3, Stat. ASSIGNMENTS FOR THE BENEFIT OF CRED- ITORS, who may malve, § 3449. partner lias no authority to make. § 2430. assignment must be written, § .3458. assignment, what to contain, § 3449. books and vouchers, surrender of, § 3462. must be recorded where. §§ 2463, 2464. void if not recorded, § 2465. duty to record assignment and effect of fail- ure, § 3465. assignment to be made to sheriff, § 3449. where assignor resides out of state, §§ 3449, 3451. assignment when void. § 3465. affidavit to assignment, § 3462. assignment, modification or cancellation of,: § 3473. gives no rights greater than debtor had, § 3460! inventory to accompany, § 3461. void against creditor, when, §§ 3457, 3459. inventory, form of, § 3458. inventory what to contain, § 3449. inventorV, failure to make, effect of, §§ 3462; 3465, 3468. j inventory, acknowledgment of, § 3458. ' Inventory accompanying, must be filed where! § 3463. ! of real property, subject to certain provisions § 3466. I property exempt from execution does not paS| by, § 3470. life insurances do not pass by, § 3470. meetings of creditors, § 3449. meeting of creditors, notice of, § 3449. meeting of creditors, adjournment of, § 3449. meeting of creditors, secured claim, holder o, not to vote at election of assignee, § 3449. meeting of creditors, voting in person or I proxy, § 3449. sheriff; assignment by to elected assigne § 3449. I INDEX. m SSIONMENTS, etc-Continiicl. shcrifl, duties of, § :',440. sheriff, fees of, § ;'i449. assij,'nee, eloction of, § 'A44U. assiprnee. diitios of, § :',441). assifjiiet', po\v<'rs .-in. I duiii'S of. § :M68. assijrneos, coininissions of, §;i471. assipruee, riirhts of wluM-e property to secure debt exceeds debt. § :i4«;S. assignee, when to make inventory, § 3402. assignee under, may be require*! to account, I § 3409. ■ assignee not liable for acts in good faith, , though void, § 3472. assignor, citation and examination of, § 3402. i bond, duty of assignee to file, § 3407. bond, failure of assignee to file, effect of. § 3467, 3408. bond, sheriff liable on olficial bond. § 34(57. bond, sheriff not required to give, § .3407. notice to creditors, mailing of, § 34(;s. notice to creditors, publication of. S .".408. notice to creditors, filing copy with recorder, § 3408. claims, what debts may be secured by, § 3452. claims, statement of, § 3449. secured creditor, rights where securitv given up, § 3468. secured creditor, rights where .security not given up, § 3408. preference to creditor. §.34r»l. assignment to particular creditor, J 3451. dividends, pavment of. § 3408. iSIGNMENTS OF CONTRACTS, of mortgage, effect of recording, § 2935. of debt secured by mortgage carries the secur- ity with it, § 29.30. general, by maimer of negotiable instrument to indorser," excuses notice of dishon(»r. § 3157. by lessor, liability of assignee, § 822. non-negotiable contract in writing may pass I by, §■ 1459. of i)artnership property, partner cannot make. 1 § 24:50. , of mortgage may be recorded. § 2934. /'SOCIATIONS. See Corporations, co-operative. See post, p. 742. Stat. ■ protective. See post, p. 737, Stat, sr IJANGE. executory contract for sale, binds -ellcr to insert covenant of furtlier, § 1733. 864 INDEX. ASYLUM, ■vN^ho may be placed in lunatic, and how, § 258. orphans in orphan, may be apprenticed how, § 265. corporations may be formed for maintenance of, § 286 ATTORNEY-GENERAL may inquire into affairs of corporations, § 382. duty of, when alien heir does not claim inherit- ance, § 1405. duty where business of building society dan- gerously conducted, pp.730, 731, §§9, 10, Stat, duty to prosecute and defend suits for railroad commissioners, p. 824, § 4, Stat. ATTORNEY IN FACT. See Agency. how must execute certain instruments, § 1095. form of certificate of acknowledgment by, § 1191. power of, how revoked, § 1216. ATTORNEYS, advertising to procure divorce or annul marriage is a misdemeanor. See Penal Code, § 159y2. ATTORNMENT, by tenant to landlord, unneces- sary, § 1111. by tenant to stranger, void, § 1948. AUCTION, sale of delinquent stock by, § 341. sale by, defined, § 1792. sale by, when complete, § 1793. withdrawal of bid at sale by, § 1794. written conditions of sale by, not to be modi- fied, § 1795. rights of bidder at, § 1796. by-bidding prohibited, § 1797. memorandum of sale, by whom made, § 1798. sale of pledged property to be by, § 3005. pledgee may purchase pledges sold, § 3010. AUCTIONEER, authority of, from seller, § 2362. authority of, from bidder, § 2363. AUTHOR, of product of the mind, exclusive own- er thereof, § 980. rights of subsequent. § 984. AUTHORITY, construction of words giving joint, §12. abuse of, renders contract voidable, § 1566. of agent. See Agency, of auctioneer. See Auctioneer, of executor. See Executors, of factors. See Factors. INDEX. g«5 AUTHORITY— Continued. of ijareiit. Sfr I'm rent, of sliip-iiiaslcr. Sec Shli)i»iim. of ship's inaii.-i^'cr. Sec Sliippinj;. of trustee. Se«' Trusts AVERACJE, uenei-al. detined. § 2HS. j;eneral, liow adjusu'd, § 2ir.i: general, value, how ascertained for purpose of, § 2ir,:i. general, owner of floods stowed on deck, when entitled to benefit of. § 2ir)4. ship-master has power to adjust, § 2.'i88. insurance free from, effect of. § 2711. general, marine insurer liable for. §§ 2712. 2744. AVULSION, owner may reclaim l.-md <'.'jrrie. AWARD, See Arbitration. i BAGOAUE. See Luggage, BAIL defined, § 2780. I how regulated, § 27S1. ^BAILMENT. See Deposit; Depositary: Hiring; Loan; Pledge. BANKS AND BANKING, banking, book and no- tice of directors and stockholders, 9 321. : change of principal place or business of cor- I poratlon. § 321. I business corporation not to carry on. § 3r>r». 1 special partnership cannot carry on, § 2477. j lien of banker, § 3054. pass-book not negotiable, § 32(;2. ! capital stock, act prohibiting dividing, wltli- drawing or reducing, p. 719 sl 18, Stat. ; capll.il stock, incre.-ising or reducing, p. 71S>. §S ID. 20, Stat, act authorizing next of kin of deceased to col- 1 lect deposit under three hundred. See Cod*» j of Civil Procedure. Appendix, p. 814. Stat. act relating to banking corporations, repeal of. 1 p. 71'.. Stat. savings banks, publishing statement of un- claimed deposits, p. 71(>. Stat, act compelling all depositaries of money to publish statement of unclaimed deposits, p. 717. Stat, act compelling commercial banks to pub- lish statement of unclaimed deposits, pp. 7ir.. 717. Stat, BANK NOTE, negotiable after payment, § 3201. Civ. Covle-7:{. 9m INDEX. See Check; Negotiable Instrument. BASTARD. See Legitimacy. BENEFICIAKY in real property has no interest therein, when, § Hii'S. when may dispose of his interest, § 868. when cannot dispose of his interest, § 867. of trust. See Trust. BENEFIT, consent of party entitled to, necessary to transfer of burden, § 1457. voluntary acceptance of, is assumption of. § 1585). he who talies, must bear burden, § 3521. BENEFIT SOCIETIES, right to form, p. 723, § 1. Stat, how formed, p. 724, § 2, Stat, formation of old associations under statute, p. 725, § 6, Stat, powers of, p. 724, § 3, Stat, burial plots, power to disp ;se of, § 598. by-laws, p. 725, §5, Stat, assessments, p. 724, § 3, Stat, actions by and against, p. 724, § 4, Stat, cumulative voting in, § 307. BENEVOLENCE. See Charitable Uses. corporations for purposes of. See Corpora- tions. BICYCLES, as luggage, § 2181. BIDDERS. See Auctions. BIGAMY, ground for nullifying marriage, § 82. BILLS OF EXCHANGE, CHECKS, NEGO- TIABLE INSTRUMENTS, PROMISSORY NOTES, defined, § 3171. may give name of second drawee in case of need, § 3172. may be in set, § 3173. when must be in set, § 3174. presentment of one of set sufficient, § 3175. where payable, § 3176. drawer of, has same obligations, etc., as in- dorser, § 3177. days of grace not allowed on, § 3181. apparent maturity of, § bl34. Acceptance— agent for collection must present for, § 2021. how made, § 3193. must be in writing, § 3194. how made, by consent of holder, § 3195. by refusal to return, § 3195. by separate instrument, § 3196. INDEX. m BILLS OF EXrHANOE. t^tc.-Contltuio-K Acceptance— promise to accept, whoii e(i ])y. § 'MW. for honor. wIkmi allowpfl. § .'ViO.'?. for lionor, holder not bonnd to nM«ivc. 5 .?204. for honor, how made. § 'A'2()7t. for honor, how enforced. 5 '.V2(H]. bill drawn on drnwor and accoplc.\1H\<: delined. § 212«J. neirotiable. §§2127. 2128. effect of, on carrier. § 2129. 868 INDEX. BILL OF LADING— Contiuued. effect of refusal to give, § 2130. delivery to holder of, sutRcient, § 2131. carrier may require surrender ou delivery, § 2132. effect of accepting, from carrier, § 2176. BOARDING-HOUSE KEEPERS, lien on baggage, § 1861. sale of unclaimed baggage for storage, etc. § 1862. posting of statement of charges by, § 1863. BOARDS OF TRADE, act providing for forma- tion of, p. 737, Stat. BONA FIDE PURCHASER, presumption in favor of on purchase of property from husband or TTife, § 164. priority between aud judgment creditor, § 1214. rights as against unrecorded instruments, §§ 1214. 1217. rights as against implied or resulting trust, § 856. BONDS, incorporations for giving, p. 725, Stat, restricting issue of by corporations, § 859. negotiable, remains so after dishonor, § 3262. religious societies may issue bonds, § 598. corporation formed to act as security, p. 725, Stat. BORROWER, For Use. does not acquire title, § 1885. must use what care, § 1886. of animals, oblicrations of. § 1887. must use what skill. § 1888. must repair negligent injuries. § 1889. may use thing, for M-hat purpose, § 1890. must not relend, § 1891. must bear what expenses. § 1892. when lender must indemnify, §§ 1893. 1894. must return thing borrowed, without demand, § 1895. I must return thing borrowed, where. § 1896. j For Exchange, acquires title, § 1904. must bear all expenses. § 1904. cannot be required to return loan before whati time, § 1905. ' Of Money, must repay in current money, § 1913. See Loan. INDEX. g6» BOTTOMRY. S<'(' KcspoiuU'iilla. defined, § 3017. extent ot insui-;il)lo iuterest of .slilp hyi)<>the- cated by, § L'tX".. owiH'i- may liypothecate upon, In any cage. § 3018. shipmaster m;iy hypothecate upon. when. §§ 3010-3021. rate of interest upon, § 3022. rights of lender ui)on. when not nocessarv, § 302;?. stiDulatiou for personal liahility un4«;. licenses, p. 733, § 17, Stat, license, revocation of, p. 733, § 17, Star, license, failure of nssociition to take out la ft misdemeanor, p. 733, S IV, Stat, fines, § 034. forfeiture, § ()30. foreign corporations doinir business, deposit bv. § 033. formation of, § G33. free shares mav be retired, § (*►,■;.">. 870 INDEX. BUILDING ETC. ASSOCIATIONS— Continued, loan and interest, Avlien may be repaid, § 638. matured value, § &SQ. maturity of stock, § 636. may buy real estate, § 640. membership, § 643. money to be loaned, § 637. one-third of receipts only applicable to pay- ment of matured shares, § 636. profits and losses, § 642. rate of interest, § 638. retirement of shares, § 635. withdrawal of stockholders, p. 735, § 19, Stat, six months' arrears and two months' notice work a forfeiture. § 639. subject to the provisions relating to the bank commissioners, § 647. foreign, claim against, § 645. duty to keep record of transactions, p. 730, § 7, Stat, board of commissioners of, p 727, § 1, Stat, subject to supervision and examination of commissioners, p. 727, § 1. Stat, commissioners, duties of. p. 72S, § 4, et seq. Stat, board of commissioners, their duties and pow- ers, p. 727, Stat, commissioners of, qualification of, p. 728, § 4, Stat, commissioners of, salary, p. 728, § 2, Stat, commissioners, secretary of, p. 728, § 2, Stat, commissioners, rent, stationery, fuel, etc., p. 728, § 3, Stat, commissioners, oflice, where kept, p. 728, § 3, Stat, commissioners, refusal of trustees to be sworn, p. 730, § 8, Stat, commissioners, swearing of trustees by, p. 730. § 8. Stat, commissioners, assessment to pay expenses of, p. 732, § 15. Stat, commissioners, powers of, p. 730, § 8, et seq., Stat, commissioners, duty of to report to attorney general, p. 731, § 10, Stat, commissioners, failure to report to attorney. general, punishment of, p. 731, § 10, Stat. annual report of association to commissioners. p. 734, ? 18, Scat. I INDEX. til BUILDING ETC. ASSOCIATIONS— Contlnuoil. appraiserd to appraise value of asKetH, p. 730. §7, Stat. COiiunissidiK'rs. cxMiiiiniii;; int.. afTnirs of, p. 7:J2. § 12. Stat, appraisement of value of securiiioH. p. 7.'{0, ( 7, Stat, proceed iuju's ajraiust wliere (•e- in.i; conducted hazardously, p. 7;i(), 8 1), Stat. assessment, liow collected, p. 7.VA, § 1(>. Stat, receiver, appointment of. ]>. 7.'{(>. § 1>. Stat, receiver, examining: into acts and conduct. of, p. 7:'.(>. S J>. vi seq.. Stat, schedule of assets on appointment of receiver. p. 731, § 11. St^it. BURDEN, consent of party entitled to benefit nec- essary to transfer of, § 14r)7. voluntary acceptance of benrlit is assumption of, § 1589. he who takes benefit must ])ear. §3521. BURDEN OF PROOF, on whom to prove want of consideration in writing:. § l(;i.">. BTJRIAD. lot inalienable after burial therein. § (313. right of, as easement, § 801. right of, as servitude, § 802. BUSINESS days, what are. § 0. right of transacting, on land, an easement, § 801. good-will of, subject of ownership, § ()<>.'>. good-will of, transferable, § 1)1)3. good-will of, defined, § l)l>2. contract not to pursue, how far void, 5 1673. general partner must not engage in separate, §§ 2430, 2437. liabilitv of partner engaging in separate, § 2438. co-operative business corporations, p. 741.>, § 1, 1 Stat. BUYER. See Sale. BY-B1DD]N(^ at nuctiou. a fniud. ?t 1707. 1BY-LA^YS. See Corporations. , of benefit society, p. 725. § 5. Stat. CANAT; CORPOKATIONS. See Corporations. CANCELLATION <»r irraiit of n-.-il property does not revest title. § 1058. of will, when operates as revocation. § 12?»2. of will, proof, how made. § 12D3. 872 INDEX. CANCELLATION— Continued. of written contract, § 1699. of acceptance by acceptor, Avhen allowed. § 3198. of written instrument, adjudged, when, § 3412. of written instrument, void on face not al- lowed, § 3413. of written instrument, partial, may be adjudg- ed, § 3414. CARE. See Negligence; Skill. Slight, gratuitous depositary to use, § 1846. gratuitous employee, § 1975. gratuitous carrier of property, § 2114. Ordinary, depositary for hire to use, § 1852. hirer, § 1928. employee for reward. § 1978. voluntary agent, § 2078. gratuitous carrier of persons, § 2096. carrier of property for reward, § 2114. trustee, § 2259. Great, borrower to use, § ISSG employee for his own benefit, § 1979. shipmaster, § 2043. carrier of messages for reward, § 2162. utmost, carrier of persons for reward to use, § 2100. carrier of messages by telegraph, § 2162. CARELESSNESS. See Care; Negligence. CARGO, sacrifice may be made for safety of, § 2148. such sacrifice must be borne ratably, § 2151. how valued on general average. § 2l53. shipmaster agent for owners" of, § 2375. ship's manager has not power to purchase, § 2389. seaworthiness of ship for purpose of insuring, § 2687. Insurance on, when voyage is broken up, § 2707. shipmaster may sell, when, § 2379. shipmaster may hypothecate, when, §§ 2377, 3038. hypothecation of. under respondentia, §§ 3036- 3038. owner of, entitled to repayment from ship- owner of amount paid under respondentia, § 3040. See General Average; Respondentia. CARRIERS. See Freight and Freightage; Rail- roads. hi INDEX. (HI CARRIERS— Continued, definod. § 2V\S. contract of caiTia^'o. (lofincvl, § 20Hr» different kinds of. § 2n.S(;. ninrino and inlan, 2(yM). has insurable interest, § 2r>4S. consignment. See Consignment. Freisrhtage. defined. § 2110. when payable, § 2136. consignor, wlien lial)le for. § 2ir{7. consignee, when liable for, § 2138. on what chargeal>le, § 2131). when apportioned, §§2140-2142. in case of extra performance, § 214?. lien for, § 2144. of messages, by telegraph, must transmit In what order, § 2207. in otlier cases, must transmit in what order. § 2208. liability for improper delay. § 2207. must deliver, how, § 21G1. degree of care and diligence required of. § 2162. Of persons, nuist carry luggage, § 2180. luggage. See Luggage, liability of, for luggage, § 2181. must (h^livci- luggage, when. § 218,3. bicycles as luggage, § 2181. gratuitous, obligations of. § 2006. for reward, must use utmost care, § 2100. for reward, must provide safe vehicles. 8 2101. for reward, must not overload vehicles. §§ 2102, 218.""). for reward, must afford reasonable accommo- dation. § 2103. . „,«, for reward, must travel without delay, § 2104. passengers. See T.-issengers. refusal to sell ticket to emigrant, when a mis- 874 INDEX. CARRIERS— Continued. demeanor. See Penal Code, Appendix, title Emigrants. for reward, must provide sufficient accom- modation, § 2185. for reward, must provide vehicles, § 2184. for reward, regulations for conducting busi- ness. § 2186. for reward, eoutribr.torv negligence of passen- ger, § 2186 n. for reward, may demand fare, when. § 2187. for reward, may eject passenger for nonpay- ment of fare, §§ 218.8. 2189. for reward, cannot demand payment after ejec- tion. § 2190. for reward, has lien on luggage. § 2191. of property, for reward, must use ordinary care. § 2114. gratuitous, must use slight care, § 2114. must obey directions. § 211.5. duties of. in case of conflicting orders. § 2116. must not stow freight on decli, § 2117. must not deviate, § 2117. must not vitiate insurance on freight, § 2117. must deliver freight wliere. §§ 2118, 2119. must give notice of arrival wlien, § 2120. may terminate liability how. § 2121. may plnce in warehouse when, § 2122. must give bills of lading. § 2126. may deliver freight to holder of bill of lad- ing, § 2130. when may demand surrender of bill of lading, § 2131. may throw freight overboard, when, § 2148. notice must be given to, to effect stoppage in transit. § 3079. duties of, in respect to freight going beyond its route. § 2201. must give evidence of cause of loss. § 2202. obligations of, in other respects. § 2203. liabilitv of. for loss. §§ 2194. 2200. liability of, for delay, § 2196. liabilitv of. for negligence, § 2195. marine, liabilitv of, §§ 2197, 2198. CEMETERIES, cemetery corporations. See Cor- porations. power of benevolent or religious societv to dis- pose of burial plot, § 598. i disinterment or transportation of dead bodies, see Penal Code, Appendix, title Public Health. INDEX. CEMKTKItlKS— Contiiiiicd. permit to remove dead bodloB. see Penal Ckxle Appendix, title Public Health, cemetery corporations, acts relatliiL' to. n 736l Stat. CEUTIFICATK of iTideiitMrcs of ai.prentlcvKlilp false, by olticer of corporation. §:ii».. for continuing' corporate existeu'-e of cornora- tiou, § 40."). * of ship-master as to exertion of seamen to save ship, § 20r.9. of names of partners, § 24<>8. of proof of loss under Insurance, when dl.s- pensed with, § 2t>.'i7. of discliarire of niorti:a;;e to be tiled with r*'- corder, §§ 2939, 2940. of aclcnowledirnient. So(» Aol()ration. S«'«' ( 'oi'porations. of mari-iaire. See Marriaj?e. of partnership. See Partnership, of stocli. See Corporations, act lejjalizinfT defective acknowledgments, p. 703 et seq., Stat. CHAMBERS OF COMMERCE, act to provide for. p. 773, Stat. CHARITABLE USES, what valid, §847. restriction on poAver to devise to. § 1313. CHARTER PARTY detined and re?:ulated. § lO.'.O. shipmaster may enter into, in foreij^n port. § 237G. ship's managrer may enter into, § 2.'i88. certain insurable interest exists under, § 2GG3. insurable interest of charterer. § 2r,r,.'.. CHASTITY, want of personal, avoids promise to marrv made in icrnorance of fact. § V>2. CHATTEL INTKliKST detined. § 7»;.-,. CHATTEL MORTGA(iE. See Mort.i;a;:e. CHATTEL REAL defined. § 075. when estate for life of third person becomes. § 700. limitation of. § 770. 3HECK, a negotiable instrument, § 309'). defined, § 3254. effect of delav in presentment of. S 3255. title of indorsee to, without notice of dishonor, § 3255. OHILD. See Parent and Child. en ventre sa mere, rlphts of, § 29. OHOSES IN ACTION detined. §95.3. transfer of and snrvlvorsliip in, §954. 876 INDEX. CHOSES IN ACTION— Continued. value of, how determined in assessing dam- ages, § 356. CHURCH, right to seat in, as easement, § 801. right to seat in, as servitude, § 802. corporations for maintenance of, § 286. CIRCUMVENTION. See Fraud. contract obtained by not enforced, § 3391. CITIES, grant of lands of state in, for railroad purposes, § 475. lease of lots, void when, § 718. CIVIL CODE. See Code, Civil. CLERK OF COUNTY, duty of, regarding mar- riage licenses, § 69. articles of incorporation to be filed with, § 296. of court of record may take acknowledgment, § 1181. duty of, where acknowledgment is taken by justice of peace, § 1194. petition for appraisement of homestead to be filed with, § 1247. must keep register of partnership names. § 2470. certificate of formation of special partnership to be filed with, § 2480. iiotlce of dissolution of special partnership to 6e filed with, § 2509. CODE, CIVIL, title of, § 1. when takes effect, § 2. not retroactive unless so declared, § 3. construction of, §§4, 5. affects no acticn commenced or right accrued before its taking effect, § 6. effect on existing statutes, § 20. how cited, § 21. effect of amendments of 1874 to, § 5, note. OODICIL, included in term "will." § 14. execution of, republishes will. § 1287. revocation of will revokes, § 1305. COHABITATION, when prevents nullifying mar- riage. § 82. COLLATERAL WARRANTIES abolished, § 1115 COLLECTION, agent for. duties of, § 2021. partner acting in liquidation may make, § 2461 effect of waiTanty of, § 2800. COLLEGES, corporations for maintenance of § 286. formation of corporation, § 649. powers of trustees, § 650. transfer of property to, § 651. xNDEX. m COLLKCKS— ("(.ntiimod. cousolidation of, olTt'ct of, § (>.'»:{ consolidation of. transfer of nroiMTtv 8 tiTui autnorizi'd to consolidate. § (J.VJ consolidation of colle^'es. niamrer of fi «5'' COLLISION, rnlcs f« r avoiding. S 07() ' from breach of rnles of nnvi;,'atiun 5071 from breach of rnk^s of navigation iinnllc^ willful default. «j 1)72. loss by, how ai)i)ortioned, § OT.'i. COLLUSION, divorce must be denied on showinft § 111. defined, § 114. presumption of, established by lapse of time, § i2r». COMBINATIONS, act to prevent In sale of live- stock of, p. 705, et seq. COMMERCIAL PAPER. See Bills of Exchange: Checks; Negotiable Instruments; Promissory Notes. COMMISSIONER OF DEEDS. See Acknowledg- ments. COMMON CARRIERS. See Carriers. COMMON LAW, rule of, construction of statutes in deroj,'ation of, not applicable to Code, § 4. rule of decision. Civil Code considered continuation of. § 5. COMMUNICATION, privilejjed, §47. private, in writing, ownersliip of, § l>sr). of consent, essential to contract, i^ l.'). upon insurance, what must be made. § 2r»(lS. upon insurance, what need not be made, § 25G4. upon insurance, of nature, etc., of Interest not required, when, § 25G8. upon insurance, on matters of judgment, un- necessary, § 2570. upon reinsurance, what required. § 2erformance of, is acceptance, § 1584. XNDEX. 9TI CONDITION— Continued. failure to perforin revokes propc.snl, f ir»87 written. jxov«>rnin;,' auction sale, not to * be modified orally, § ITl).'. Concurrent, in <)lill.i;atioiis. what, g 1 j:',7. what may deprnd on performance of $ HOS. Precedent ^n-ant on, only an .•\..,iit,..v ,.011. tract, § niu. in will, what, § ].".4(>. in will, effect of, S i;}47. in will, when decnied i)erformed, § l.'MS. in obli^Mvions. what, § 14." '.f». when must he performed. § 14.".0. what may depend on performance of. § 1498. Subsequent, condonation implies certain. § 1117. riuht of re-entry for breach of, tran&i\.rable, § 104«. 1 property to be reconveyed on nonperforraarce 1 of, § 11(»9. in will, what, § 1349. in obliprations, what, § 1438. OONDOXATION. See Divorce. UONFINEMEXT. unlawful or fraudulent, avoids i' contract, § ir)(j9. : master of ship may subject seamen to. § 2037. master of ship may subject pa.ssengers to, 1 § 2038. 1 See Duress. t;30NFIJSI0X OF (iOODS. See Accession. . ownership of thinjrs, formed bv, §§ 1025-10,32. ('30NNIVANCE, divorce must be denied on show- I inp, § 111. defined, § 112. how manifested, § 113. J presumption of, in certain cases. § 12ri. I contract obtained thronj;h. voidablr. ij KVSO. tjIGNSENT, of parties necessary to m.*irria?e, § 55. alone does not constitute marr'MK<'. § •'» I who arc capable of irivin;::. to niarria;:e. § .')0. I to marriaj::e. how manifested and proved, 5 57. ' incapacitv to, when ground for •MinuUim: mar- • riage, § 82. ;| separation by. not desertion, §99. t! to separation, a revocable act, § 101. )| corrupt, § 112. M corrupt, how manifested, § 113. 1; mutual, sutlicient consideration for a;xreement I to scjiarate. § HIO. I I of husband not required for transfer of wife's separate property. § 102. 880 INDEX. CONSENT— Continued. written, of mother, necessary to trans ''er cus- tody of child, § 197. of wife, necessary for married man to adont child, § 223. of child's parents necessary to adopt child, § 224. of child, when necessary for its adoption, § 225. for apprenticeship of child, §§265, 266. of party entitled to benefit necessary to trans- fer of burden, § 1457. contract may be rescinded by mutual. § 1689. thins: obtained without, of owner, to be re- stored, § 1712. of depositor necessary to use of deposit by depositary, § 1835. of landlord necessary to attornment to stran- ger, § 1948. of principal, necessary to release of factor, § 2030. voluntary interference with property without, § 2078. of beneficiary, necessary to allow trustee to hold adverse interest, § 2233. mutual, necessary to create trust, § 2251. not necessary to rescission of ratification, § 2314. of all, necessary to creation of partnership, § 2397. unanimous, necessary to admission of new partner, § 2397. not necessary to create guaranty, § 2788. to contract. See Contract. CONSIDERATION, valuable, defined, § 14. minor must restore, on disaffirmance of con- tract, § 35. mutual consent to separation sufficient, § 160. effect of transfer where paid by third party, § 853. not neeessarv to validity of voluntary trans- fer, §§ 1040, 1146. old obligation extinguished by new, § 1541. written instrument prima facie imports, § 1614. on whom falls burden of proof to show want of sutiicient, § 1615. good, defined. § 1605. | how far moral obligation is good, § 1606. must be lawful, § 1607. effect of illegality of, § 1608. may be executed or executory, § 1609. executory, need not be specified, § 1610. INDEX. m CONSIDEKATION-ContiiUK'.I. executory, how ascertained, § KJU. effect of impossibility of ascertalniuK, Si 1«12, 1013. contract may ho altered without now. § 1CJ»7. uot necessary to create aixeucv. § L'.'His. necessary to guaranty, when. § liT'JL*. need not be expressed in written iruaranty § 2703. ^ presumption of, in negotiable Instruments. § 31U4. effect of want of, in negotiable instruuK'nts. | 3122. of contract. See Contract. : CONSIGNMENT, defined, §2110. carrier must obey consignee, when, § 21K). when carrier must obey consignor, § 2 HO. ' storage of freight on deck, § 2117. 1 freight to be delivered to consignee, §§ 2118, 2119. '< notice of arrival of freight to be given to con- signee, § 2120. when consignee refuses to accept, freight may \ be stored, § 2121. consignee liable for freightage, when, §§ 2137, i 2138. 1 effect of acceptance of part performance, § i 2141. i", assent of consignee to special contract, how ^1 proved, § 2176. consignor may stop goods in transit on Insol- • vency of consignee, § 3070. what is insolvency of consignee. § 3077. ,:;ONSTKUCTION. See Contract— Interpretation. :;0NSTKUCT1VE notice defined, §§ IS. 10. delivery, § 1059. 1 fraud, defined, § 1573. CONSUL of United States may take acknowledg- ments, § 11S3. CONTEMPT, officer taking acknowle;imen, r«'s1i-lctions on, 5 2f ).'».'?. Validity — duress or nndno Inflnoiice renders con- tract voidable, §§ 15(57, 1575. Consent, when (leciiicd nnitnnl. § l.'.so. wlien deeniod coiniminifMtod. §§ l.'iSl. 1.582. when deemed conii)lotc. § 158.'i. proposal of, when deemed accepted, § 1.584. accept.-ince of i)r()i»(»sal must be absolute § 1585. revocation of proposal, ^ 1580. revocation, llo^v made. § 1587. voidable, may l)e r;i tilled. § 1.588. acceptance of benefit, wlien deemed. J 1.580. may be rescinded. § 1»;80. essential elements of. § 15«)5. when not free, not void l>ut voidable, § 1.500. apparent, when not free, § 1.5(57. when deemed obtained throuirh fraud, § 15C8. duress in obtainintr, defined. § 1.5(51>. menace in obtaininir. delined, § 157(^. fraud in obtainiuLr. defined. § 1571. actual fraud in (»l)tainin,ir. defined. § 1572. constructive fraud in obtaininir, detimMl, § 1573. undue influence in ol)tainin.tr defineil, § 1575. mistake in obtaininjr, defined. § 157(5. mistal^e of fact in ol>taininvr. 38. i{ to be ijoverned by written words, § lOiiO. ^1 exception in cases of fraud. § 1040. i entire contract to be considered in. § 1641. ,■ several contracts to be taken toi^ether in. ; M § 1042. ;. i to be favorable to validity, § 1C»43. ' according; to ordinary sense of words, § 1G44. ' technical words, § 1(545. ' what law iroverns, {5 1(54(5. , by surrounding circumstances, § 1(547. • subject-matter to be considered In. § 1047. I to be restrained by its object, § 1048. 884 INDEX CONTRACTS— Continued. uncertainty in, to be construed against, when, §§ 1649, 1654. general intent to prevail in, § 1650. original and written parts in, to prevail, § 1651. Interpretation— repugnances in, § 1652. repugnances in, § 1652. inconsistent words to be rejected in, § 1653. what stipulation implied in, § 1655. incidents to contract implied in, § 1656. in respect to time of performance, § 1657. when presumed to be joint and several, §§ 1659, 1660. executed and executory, § 1661. of sale not revocation of will, § 1301. executed, voluntary transfer is, § 1040. executory, grant on condition precedent is, § 1110. conditional obligation, involving forfeiture, how construed, § 1442. non-negotiable written, transferable, § 1459. Object, defined, § 1595. must be lawful, possible, and ascertainable, § 1596. when deemed possible, § 1697. when illegality of, renders contract wholly void. § 1598. Extinction and performance and alteration in general, § 16S2. by rescission, § 1688. by rescission, in what cases, § 1689. certain stipulations do not prevent rescission, § 1690. by rescission, how effected, § 1691. by alteration, § 1697. sealed, how modified, § 1698. by cancellation and destruction. § 1699. by unauthorized alteration, § 1700. alteration of duplicate not prejudice, § 1701. impossibility. See Impossibility, time, when of essence of. S 1658. place of performance. See Place of Performance, offer of performance. See Offer of Perform- ance, part performance. See Part Performance, performance. See Performance, prevention of performance. See Prevention of Performance, to mariw, how parties may be released from, §62. INDEX. m CONTRACTS— Continued. conditional, delivery cannor he inail. failuro of, wIkmi irronnd for n'scjsslon. § ir>.S9. Extinction— conditional oblijratlon, preroquisltci to enforcing'. § 1431). conditional obligation, perfonnanrc of, when excused. § 1440. conditional offer of performance, when valid. § 141>4. alteration. See Alteration, contract in writing, when may be altered l)v. § i(;i>s. damages for breach. See Damages. to convey real proi)erty, damages for breach of. § 330(). to purcliase real property, damages for breach of. § 3307. to sell personal property, damages for breach of. §§ 3308, 3309. to buy personal property, damages for breach of, § 3311. Particular contracts. See also particular title. of ai)i)renticesliip of alien minor. §274. to relieve directors from liability. §327. to sell personal propertv, §§ 114(3, 1739. novation, § 1532. novation, detinition of, § 1549. novation, essential elements of, § 1550. novation for benefit of third person may be en- f:)rced bv him, § 15.59. for sale, what, § 172(5. to sell, defined, § 1727. to buy, defined, § 1728. to sell or buy, defined, § 1729. to sell, what may be subject of, § 1730. to sell real projierty. §§ 1731. 1741. to sell real lu-operty hinds seller to insert cer- tain covenants, § 1733. form of such covenants, § 17.''4. to manufacture from materials furnishe5. delivery of, must be absolute, § 10r»0. subject to condition, and In possession of third ! person, § 1057. I surrendering or canceling does not operate aa ; retransl'er, § 1058. ' words of inheritance not necessary to pass a fee, § 1072. ! what title passes by, § 1083. I by married woman void, unless acknowledged, Lo>v, § 1093. fee-simple title presumed to pass, § 1105. ' in fee-simple carries with it subsequently ac- , quired t.tle, § 1100. how far conclusive against grantor, § 1107. (I how far conclusive on purchaser, § 1107. |i by owner for life or years, S 1108. *1 on condition subsequent, § 1109. ;; on condition precedent, § lllo. valid witliour attornment of tenant. § 1111. ! of title to highway, ij 1112. what covenants included in, § 1113. I by married woman, § 1187. 1 bv heirs wliere will not probated, § 1364. ; defined, § 1215. I conveyances by persons whose names chang- I ed, p. 705, § 1, Stat. i priority between bona fide purchaser and Judg- I ment creditor, § 1214. • delivery, necessary. § 1054. i date, presumption of time of, 1055. I to grantee is necessarily absolute, § 105G. : in escrow. § 1057. ' surrendering or canceling grant does not re- ' convey. § 1058. », constructive, § 1059. j! gratuitous grants take effect immediately; ex- 1 ception, § lOGO. 888 INDEX. CONVEYANCES— Continued, tax deeds. See Taxes. Form, simple, § 100^. bv married T\'oman, § 1093. Form— by attorney in fact, §§ 1094, 1095. aclvnowledgmeut. See Acknowledgment, recording. See Recording, recording of record of conveyances by public officers, p. 7G6, § 2, Stat, record of conveyances by persons whose names changed, p. 7(56, § 3, Stat. Interpretation, how made, § 1066. of limitations. § 1067. by aid of recitals, § 1068. against grantor, § 1069. of irreconcilable provisions, § 1070. of "heirs," "issue,'' etc., § 1071. CONVICTION of felony, ground for divorce, § 92. when divorce for. must be commenced, § 124. CO-OPEllATIVE BUSINESS CORPORATIONS. act defining, p. 749, Stat. CO-OPERATIVE SOCIETIES. See Corporations, Kinds of— Religious, Social, and Benevolent, not insurance companies, § 451. how formed, p. 742, § 1, Stat, riixhts and interests of all members equal, p. 743, § 2, Stat, liability of members, p. 743. § 2, Stat, articles of association, p. 745, § 3, Stat, by-laws, p. 744. § 4, Stat, by-laws must be recorded, p. 745, § 5, Stat, propertv is subject to execution, p. 746, § 6, Stat, business may be changed, p. 746. § 7, Stat profits, how divided, p. 746, § 8, Stat, powers of association, p. 746. § 9, Stat, associations may be dissolved, p. 748, § 11, Stat, associations mav be consolidated, p. 747, § 10, Stat. attorney-general to bring suit, p. 748, § 12, Stat act to De iiberallv construed, p. 74W. § 13, Stat. COPAR'J^NERSHIP. See Partnership. CORPORATIONS. See also Corporations, Kinds of. defined, § 283. what are public and private, § 284. how formed, § 285. for what purposes formed, § 286. how may continue their existence, § 287. certain, not affected by the code, § 288. INDEX. gap CORPORATIONS-ContiiimMl. iiaiiio of iiiKtruiiu'iH cn'atinp, §280. term of oxistoiico. § '2\)i'>. wlio inenibers and who stockholders. 8 29ft. chan,i?e of principal place of huslncss of. $ :ii21. to lile certified co])y of articles in county where it holds projierty. § 21i!>. misnomer not to invalidate instrument. 5 .'?."i7. dealers with, cannot Question existence, fi :\rA. where proceedings under execution may be had against, >j 'AU'.i. how niaj' extend corporate existence, § 401. examination of boolvs of, S 587. acknowledgement of instrument by, § 11(51. requisites of such. § 1185. certiticMte of ^^uch aclvnowledgment. § 1190. other than for prolit. how formed, § .V.)."',. lien of servants where wages not paid, p. 752. § 2. Stat, liens of mechanics and laborers on nonpay- ment, p. 750. § 2, Stat. division of property among stockholders, S -"^OO. payment of waL:es of nu'clianics and laborers, p. 752. Stat. act allowing corporations to do business on equal terms, p. 827, Stat. Articles of incorporation, defined. § 289. what to contain. §?j 290. 291. prerequisites to filinir. §S 294. 295. must be subscribed by wliom. § 290. certificate to issue after tiling, § 29s. ? r,\:,_ doing business before makinfr a deposit a mls- demeanor, § i'A't. insurance companies doinp business on nssesH- ment plan, requirement of, p. 7S0. j 0. Stat. Franchise, levy upon and sale of, § ."WS. rights and duties of purchaser of, at sale. §§388, 389. corporate powers after sale of, § 391. redemption, § 392. place of sale of, under execution, § 393. renewal of, act relating to, p. SIT. § 2, Stat. Meetings, when first to be called. § 3(H. time, manner, and place to be specifieil in by- laws. § 303. by-laws only to be amended at special, § 304. oflBcers to be removed only at general, § 310. justice of peace may order, § 311. majority must be present, § 312. who may vote, § 313. by consent to be valid, § 317. proceedings at. to be binding, § 318. where held, § 319. special, how called in certain cases, § 320. for extension and continuation of corporate ex- istence, § 401. OflBcers, married women may become. § 28r>. oath of, on filing articles of incorporation, § 295. by-laws to regulate compensation and duties, §303. directors to elect president, treasurer, an. proceedings for removal of. S .'ST. civil proceedings by and agains<-, for removal of officers, § 587. * fraud or misrepresentation by officers of, p. 7G2, Stat. act punisliing false report by officer of. Sef Penal Code, Appendix, title Corporations. directors, how many, and qualifications of. § 305. directors, vacancy In office, how filled, 8 305. directors, eh-ction, how made, when, and by whom. § 307. directors, organization of board. § 308. directors, must make dividends, how. 5 309. 892 INDEX. CORPORATIONS— Continued. directors, liability of, in certain cases to credi- tors, § 309. Officers — directors, removal of, § 310. directors may postpone election, when. §314. directors, boolc and notice of, by banks, § 321. directors may levy assessments, § 331. directors on dissolution, to be trustees for creditors, § 400. directors, contracts to relieve directors from liability, §327. directors, what actions against never barred, §309. Organization, dissolution for want of, § 360. within what time to be effected. § 360. Powers, defined and prescribed, § 354. . limitation of, § 355. banliing expressly prohibited, § 356. when forfeited for non-user, § 358. to increase or diminish capital stock, § 359. to acquire real property, § 360. sale of property in foreign country, § 364. not affected by sale of franchise, § 391. of corporations not formed for profit, § 599. may acquire real estate. §§ 265, 595. cannot take by will. § 1275. may own and improve lot and house to carry on busiupss in. § 360. acquiring lot and building where business car- ried on, §363; p. 763, Stat. act to prevent combinations to obstruct sale of livestock, p. 705, Stat. act authorizing corporation to act as executor, p. 754. Stat. Records, how kept and what to contain, § 377. "stock and transfer" book, § 378. Stock, amount to be subscribed before incorpo- rating, § 293. oath of officer to subscription, § 295. capital stock of banking, § 300. majoritv of subscribed necessary to adoption of by-laws, § 301. two-thirds of subscribed, necessary to amend by-laws, § 304. majority of subscribed, necessary to election, §307. dividends not to be made from capital, § 309. debts not to be incurred beyond subscribed, § 309. capital must not be increased or diminished except, §§ 309, 359. INDEX. M CORPOKATIOXS Coiithiii...!. ou (lissoluiioii, may hv (livi(le; (■>21. not for profit, § 622. mav fix fee, etc.. for membership. § f.22. Banlc'ing. capital slock of, S 300. publishing statements, pp. 716. 717, Stats. Beneficial, how formed, p. 723, Stat. Benevolent, not insur.-ince companies. §4.'.!. See Infra, Religious, Solclal, and Benevolent. may issue bonds. § 598. Boards of trade may be formed, p. 737, Stat. Bridge, ferry, wliarf. chute, and pier, t«» obtain license from board of supervisors. § 52S. in what oontini:encies corporate existence ceas- es, § 529. 894 INDEX. CORPORATIONS— Coutinuecl. Bridge, ferry, etc., annual report of, § 530. damajjes, for failure lo report, § 530. tliis title applies to bridge, etc., owned by nat- lu-al persons, § 531. Building. See Building and Loan Associations. Canal. See Water and Canal. Mutual Cemetery, how much land may be held, and how much disposed of, § 60S. who members eligible to vote and hold oflSce, § 609. may hold what personal property, § GIO. such surplus, how disposed of, § 610. may issue bonds to pay for grounds, § 611. proceeds, how disposed of, § 611. may take and hold property or use income thereof, how, § 612. interments in lot and effect thereof, § 613. Transfer of right made how, § 613. lotowners previous to purchase to be mem- bers, § 614. burial plots, power to dispose of, § 598. may sell land, § 615. manner oi: sale of land, § 615. cemetery, manner of execution of deeds by, p. 763, Stat. ';emetery corporation, practice on sale of, land by, § 615. cemetery corporation, acts relating to, p. 736, Stat. Chambers of commerce may be formed, p. 737, Stat. Colleges, incori)oration, and power of trustees of, §§ 649-651. Co-operative business, defined, p. 749, § 1, Stat. formation of. p. 742. § 1: p. 749, § 1, Stat. Children, act for incorporation of societies for prevention of cruelty to children. See Penal Code, Appendix, title Infancy. Dock. See Bridge, etc. Educational, married women may become cor- porators, § 285. corporation and powers of trusteesof.§§ 649-651. Ferry. See Bridge, Fetry, etc. Foreign, to designate person upon whom pro- cess may be served, § 403. Gas, to obtain privilege from city or town, § 628. to supply gas on written application, § 629. damages for refusal, § 629. INDEX. M CORrORATIONS-Contiuued. Gas, when may refuse to supply. § (KJO. aj;oiit of limy inspect meters, § «l"il. when persons ne;:leet to pay, ^as may be shut off. NS- Con'JmuMl. Mining— consolidation of, § 301 removal of principal olHce provltlod for. 9 r>84. directors to lile certificate of what, where. § 585. transfer a;xencies. § 58(5. stoclc issued at transfer afren<-ies, § 'tHl. power of directors to sell, lease, nuirtpajjo, or dispose of proi)erty, p. Sll, Stat, act providing for removal of otlicers. p. S04, §1. Stat, act for better protection of stockholders in, p. 807, Stat, duty to keep and post accounts, vouchers, etc., and penalty for failure, p. 8<>7. § 1 ct heq., Stat, duty to keep books of accounts, p. 8<)7, 8 1, Stat, right of stockholders to examine grounds, p. 809. § 2, Stat. Mutual, beneficial, and relief, Iiow forintMi. p. 72:i, Stat, not insurMnoc comp.inies. §4r»l. Pier. See Bridge, Ferry, etc. Railroad, articles of incorporation must state wliat, § 21)1. prerequisites to filing articles. §§ 294. 2fr>. directors to be elected, when, § 454. additional provision in assessment and trans- fer of stock. § 455. may borrow money nnd Issue bonds, § 450. to provide sinking fund to pay bonds, § 457. capital stock to be fixed. § 458. certificate of payment of tixed capital stock, § 459. enumeration of powers. § 405, mn]) and profile to be filed, i^ 40<;. may change line of, § 407. forfeiture of Irandiisc. § 4<">S. crossings an. sale of i)r(>i)tMMy to anotlier r;iilroad. § 491. State lands granted for use of, S 474. 898 INDEX. CORPORATIONS— ContiDned. Railroad— such grant not to embrace town lots, § 475. certain fixtures may be talien from realty, §476. lauds to revert to state, when, § 477. requisites on selection of right of way, § 478. check to be atiixed to all baggage, § 479. damage for refusing so to do, § 479. annual report to be verified, § 480. form of report, § 480. duties of, § 481. to pny damages for refusing transportation, §482. to furnish accommodations for passengers, §483. to post regulations, § 484. not responsible for injuries incurred by violat- ing rules, § 484. to pay damages, § 485. not liable in certain cases, § 485. may recover damages, when, § 485. regulations of trains, § 486. penalty for violating such, § 486. conductor may eject passengers, when, § 487. officers to wear badge, § 488. rates of charges, § 489. passenaer tickets, how issued, and good for six months, § 490. character of iron to be used. § 491. freights and fares bill, p. 822, Stat, commissioners and their duties, p. 822, Stat, extortion and discrimination, p. 822, Stat, stop-over ticl-cets, § 491. may complete road, p. 819, Stat, equal terms for all railway companies, p. 820. Stat, act compelling the operating of roads, p. 821, Stat, constructed over certain elevation exempted from running roads at certain periods, p. 821, Stat, street, may be formed, § 286. articles of inco''poration to state what, § 291. prerequisites to filing articles, § 294. authority to lay traclv, § 497. restrictions as to granting right of way, § 498. two mav use same street, when, § 499. rate of fare, p. 829, Stat. INDKX. igp COKPORATIONS-Coiil inii.'d. Railroad— rate of speed, § 501. coiistriictiou aud requisiU's of coDveyAOces, 9 501. must cominence coustruetiou of ro.-ui when, § 502. effect of failing to do so, S 502. cities and towns may nial. CREDITOK. Sec AssiKiiment for the Hru.-m of Creditors; Debtor, trusts for benefit of, § &>7. trust fund, how far liable to, § ST.O. trust, when absolute, in favor of subHoquent, § 809. gift causa mortis treated as lepacv, when, I 1153. transfer for benefit of, to be recorded. § lUM. appraisement of homestead on petition of judgment, § 1245. when to pay expenses of appraisement of homestead. § 1259. competent witness to will, § 1281. acceptance by, necessary to satisfaction, { 1473. performance of obligation of one of several joint. § 1475. performance in manner directed by. § 1476. application of performance by, § 1479. offer of performance to, § 1488. offer of performance at place appointed by. § 1489. offer of performance so as to benefit, § 1493. receipt by, § 1499. objections to offer of performance. § 1501. title of thing offered passes to. when. 5 1502. obligation of. as to tiling offered. § 150.'>. performance excused if preventecl by. § 1511 effect of prevention of performance by. § 1512. effect of refusal to accept performance. ;> 1515. acceptance of accord, § 1523. acceptance of part performance, 5 1524. novation, how. § 1531. may rescind novation, when. § 15.34. release by, § 1541. release by. effect of, § 1.542. partner "cannot nialy factor. § 2(V_>S. to agent exonerates principal, when. § 2.33."). agent accepting personal. Iial)le as principal, § 2343. aucticuieer not to uive. ♦•xr.'pt when ustial. § 23(;2. 904 INDEX. CORPORATIONS— Continuea. Telegraph— may dispose of certain rights, § 541. rates of charges to be fixed and published, §542. Wagon-road, articles of incorporation must state what, § 291. prerequisites to filing articles, § 294. three commissioners to act with surveyors, § 512. survey and map to be filed and approved, § 513. tolls, etc., to be collected, § 514. penalty for taking unlawful tolls, § 514. no toll to be charged on public highways, § 515. rates of toll to be posted over gate, § 516. toll gatherer may detain person until toll paid, § 517. toll gatherer not to detain person unnecessar- ily, § 518. penalty for avoiding tolls, § 519. penalty for trespass on property of, § 520. when capital repaid, tolls to be reduced, § 521. mav mortgage and hvpothecate property, § 522. this title to apply to roads owned by natural persons, § 523. Water and canal, may obtain contract to supply| city or town, § 548. supervisors fixing rates for water supplied for] irrigation, p. 850, Stat. duties, § 549. rates to be fixed by commissioners, § 549. right of way, § 550. to" build and keep bridges in repair, § 551. right to water to irrigate lands sold by water} or irrigating company, § 552. act regulating sale and control of water, p. 843, Stat. Water companies. See Water Companies. Wharf. See Bridge, Ferry, etc. COSTS of action for divorce, § 137. of appraisement of homestead, § 1259. of transportation of personal property to pla( of delivery, § 1755. depositor must indemnify depositary for cern tain, § 1833. borrower to bear certain. § 1892. Civ. Code— 76. INDEX. XK CKEDITOIt— ConliiuKMl. special, ^vh(•ll liable as irciicial parin.-r to, § 2502. guarautor. liable to, when. § 2s<»7. guarantor, when exoneraie«l. § 'JSPJ. guarantor not exonerated hv voidable prom- ise of, § 2S2(). guarantor, when partially excuuTated. f, 2822. guarantor not exonerated by nuMe *U'lay of, § 2S2:{. guarantor witli indemnity, w li.'n not exoner- ated. § 2S24. guarantor not exonorated bv discharm' of debtor without aet of, S 2S2.'i. surety, how far liable, § 28:^8. surety exonerated by what act or onnssion of, § 2840. surety exonerated by refusal to sue. when. § 2845. surety may enforce remedies of, when, § 2845. surety entitled to securities held by, when, § 2849. entitled to benefit of surety's securities, § 2854. must resort to different funds, in what order, § 2891). lieu void against, when, § 29i:{. mortgage of personal property, wlien void against, § 2957. of mortgagor, remedy of, § 21m;8. of morti^agee, reme1' titl«» to imtkoiiuI property, § 'SSV2. for broach ot" warranty of (pialitv of p.-rBonnl property, § a;',i:i. for breach of carrier to accept freiirht. fi 'XiVt. for breaeli of carrier to deliver frelKiit. J .'i'iU}! for l)reach of carrier to deliver luehsnjrus i 220'). for breach of warranty of agent's authority. § 3318. ^ for breach of promise of raarriajje, § XiVJ. for wrong's in jxeueral, § 3333. for wrouj;ful occupation of real i)r<>pertv § 3334. for holdiujj over real property. § 3;i,35. for conversion of personal i)roperty. § .'1336. for conversion in favor of lienor, §*33:iS. for seduction. § 333J). for injuries to animals, ij 3340. for injury to sheep by doj?s, § 3341. for tenant's failure to «iuit aftor notice, §3344. for tenant holdini; over, <; 3345. for injuries to trees, S 3340. for injuries intlicted in duel. §§ 3347. 3348. value of property, in favor of seller. § ,'i353. value of property in favor of buyer, § 3,354. value of property, peculiar, wlieu allowed. § 3355. value of thinj; in action, § 3356. to be reasonable, § 3358. nominal, § 3300. for delav. must be paid on redemption from lien, § 2905. ditticultv of ascertaining, ground for specific relief, § 3380. inadeipiacv of, ground for specific relief, §§ 3380, 3384. DATE, of delivery of grant, presumption of. § 1055. not necessary, in negotiable instrument, 5 3(H)1. DAUOHTEU, right of protection against 8eiluc- tion of. § 40. DAYS, what, holidays. §5 7, 8. what, business, § 0. what, counted in computing time, 8 10. fractions of. when disregarded, § 14. of grace, not allowed, § 181. 908 INDEX. DEATH of minor, personal representatives may disaffirm contract, § 35. dissolves marriage, § 90. of parent, leaving cliild unprovided, effect of, § 205. of .loint guardian, § 252. without heirs, etc., defined, § 1071. gift in view of, defined, § 1049. gift, when presumed in view of, § 1150. gift in view of, revocation, § 1151. gift in view of, effect of will upon, §§ 1152. gift in view of, when treated as legacy, § 1158. of husband and wife, effect on homestead, § 1265. of devisee or legatee before testator, effect of. §§ 1310, 1343. of devisee before testator, § 1344. of heir advanced to, before devisor, § 1399. distribution of common property on, of wifev § 1401. distribution of common property on, of hus- band, § 1402. of seamen, who entitled to wages, § 2062. of maimer of instrument bearing nominal date, § 3094. notice of dishonor in ignorance of, of indorser, § 3146. DEBTOR. See Assignment for the Benefit of Creditors; Creditors: Debts: Insolvency, performance must be made by or for, § 1473. performance by joint, § 1474. effect of directions to, as to performance, by creditors, § 1476. application of general performance by, § 1479. offer of performance by or for, § 1487. may require receipt, § 1499. rights of, upon prevention of performance, §§ 1512-1514. novation by substituting new for old, how made, § 1531. release of, by creditor, § 1541. release of, by creditor, effect, § 1542. joint, release of several, § 1543. fraudulent misrepresentation of, as to pledge, § 2999. may pay or secure one creditor in preference to another, § 3432. INDEX. VI, DEBTOR— ContimuMl. certain transfers void ajjalnht or«MlltorH ( .'M.'n when creditor can avoid art of. s ;t44i insolvent, may assipn for bondlt of rrpdlton* when, § 3449. insolvent, defined. § M'yO. DEBTS, earninjrs of wife not li;i!.l.> p r of hus- band. § 108. hiisl)and not lial)Ie for :inteniiptl.-il. of wifo i^ 170. separate property of wife not li:il)l<' f..r ..f husband, § 171. separate property of wife liable for hor own. § 171. corporations not to create, beyond actual sub- scribed stocl^, § 309. when officer of corporation liable for, § 316. liability of stoclcholder for, of con)oratlon. § 322. ineluded in word "incumbrances." § 1114. homestead liable for certain. § 1211. property of intestate, how disposed of in pay- ment of. § 1358. property of testator, how disposed of in pay- ment of, § 1359. legacies, how charged witli. §§ VM\0. 1301. liability of beneficiaries for testator's, § 1377. how extinguished by offer of payment, § 1500. accord of liquidated, § 1524. agreement to answer for. of another, { 1024. ; partner may require i)artnership proi>erty to be applied to payment of, §§ 2405. partner acting in liquidation may collect, com- promi^e. etc.. § 2401. liabilitv of contribution of special partner for, § 2501. special partner not personally liable, when. § 2501. pledgee cannot sell certain i)lt'tlged evidences of, ^ 3000. DECEIT renders contract voidal)le. § 15r>7. an essential element of fraud, § 1572. when actionable, §§ 1709, 1710. upon the pul>lic, § 1711. DECK, freight not to be stowed on. § 2117. things stinved on, when entitled to general av- erage, § 2154. DECLAUATIONS of marriage, how mad.«. S TO. of marriage, to be aclvno\yledg»Ml and record- ed, § 77. 910 INDEX. DECLARATIONS— Continued. of marriage, action to compel, § 78. of trust, effect of omitting: in errant. § 869. of trust, act in contravention to, void, § 870. of abandonment of homestead, § 1243. of abandonment of homestead, from -^hat time effectual, § 1244. of homestead, how acknowledged, §§ 1262, 1266. of homestead, what to contain, §§ 1263, 1267. of homestead, to be recorded, §§ 1264, 1268. of homestead, effect of filing for record, §i 1265, 1269. such to be recorded, § 1268. of trust, defined, § 2253. of trust, trustee must obey, § 2258. DEEDS as conveyances. See Conveyances. DEFAMATION, right of protection from, § 43. how effected, § 44. DEFAULT, divorce not to be granted by, § 130. collision from breach of rules implies willful, § 972. agreement to answer for, of another, must be in writing, § 1624. DEFECTS in certificate of acl^nowledgment, ac- tion to remedy, § 1202. in description in will, effect, § 1340. implied warranty of manufacturer against la- tent, § 1769. depositor must indemnify depositary for dam- ages arising out of, § 1833. lender must indemnifv borrower for damages arising out of, § 1893. in notice of loss under insurance, how waived* § 2635. DEFINITIONS, abandonment, § 27i6. acceptance of offer, § 1584. acceptance of bill, § 3193. accord, § 1521. adult, §27. adultery, § 93. advancement, § 397. agency, 2295. actual, § 2299. ostensible, § 2300. agent, § 2295. special, § 2297. agent, general, § 2297. agreement for sale, § 1726. to sell, § 1727. 1 INDEX. 911 DEFIMTIONS-ContiiuKMl. agreement to buy, S 1728. lo sell ami buy. ^ ITliU. alloii;4e, § .■;:'.!( i. annuity, § i:;.")!. ai)i)urten:nKes, § (J(;2. articles ol" iucorijoraliou, 9 281). auction, § 1702. authority, actual, § 2:]lU17. buildinjj: and loan associations, § G48, p. 735, § 20, Stat, business days, § 9. carrier, marine, § 2085. inland, § 2087. common, § 21G8. charter-party, § 1959. chattel, real, § 705. interest, § 7G5. check, § 3254. collusion, § 114. common carrier, § 2108. community property, §§ 104, 087. companies, p. 828, § 14, Stat, concealment, § 2501. condition precedent, § 1340. subsequent, § 1349. concurrent, § 1437. conditional devise or legacy, § 1345. obligation, § 1434. condonation, § 115. connivance, § 112. consideration, good, § 1005. consignee, § 2110. consignor, § 2110. contract, § 154! >. executed, Jj 1001. executory, § 1001. express, § 1020. implied, § 1(121. conveyance, S 1215. corporation, § 283. 912 INDEX. DEFINITIONS— Continued, corporation, public, § 284. private, § 284. articles of incorporation, § 289. creditor, § 3430. cruelty, extreme, § 94. damages, § 3281. debtor, §§ 14, 3429. deceit, § 1710. declaration of trust, § 2253. delivery, constructive, § 1059. deposit, § 1813. voluntary, § 1814. involuntary, § 1815. for Ijeeping, § 1817. for exchange, § 1818. gratuitous, § 1844. for hire, § 1851. depositary, § 1814. depositor, § 1814. desertion, §§ 95, 96. detriment, § 32,s2. deviation, § 2694. discrimination, unjust by railroad, § 491. dishonor, § 3141. divorce, § 491. dominant tenement, § 803. drawee, § 3171. drawer, § 3171. duress, § 1569. easements, § 801. employee, § 1965. employer, § 1965. employment, § 1965. escrow, § 1057. estates in real property, § 761. in fee, § 762. of freehold, § 765. exchange, § 1804. extortion by railroad, § 491. factor, §§ 2026, 2367. fixtures, § 660. fraud, actual, § 1572. constructive, § 1573. freeholds, § 765. freight, § 2110. freightage, § 2110. gift, § 1146. in view of death, § 1149. good-will, § 992. I INDEX. til DEFIXITIONS-Ceiitinuod j^raut, § 10");',. guai-MiHy, § 2TS7. coiitiriiiliifx, ii 2.S14. guardian, § 2:'A\. geueral, § 2;U). special, § 240. head of the family, § 1201. habitual intemperance, § 10(5. hiring'. § 102."). holidays, § 7. homestead, § 12:57. hydraulic mininsr, § 1425, impossibility, § 1597. income, § 748. incumbrances. § 1114. indemnity. § 2772. indorsee in due course, § 3123. indorsement, § 3108. general, § 3112. indorsement, special. §3113. indorser, § 3108. insolvency, § 3450. insula l»le interest, § 254(3. insurance, § 2527. double, § 2041. marine, § 2655. insured, § 2538. insurer, § 2538. intemperance, habitual, § 10(>. interest of money, § 1915. compound, § 14. interests, joint, § r»83. partnership, S 084. in common, § 685. present, ^ (589. future, S 690. perpetual. § 691. limited, § (592. vested, § (594. issue, S 1071. contingent, i^ 695. iettison, § 2148. land, § 659. lapse of time, § 125. legacy, spec i tic, S 1357^ demonstrativ(\ § 1357. residuary, S 13>57. general, § 1357. Civ. Code, 77. dl4 INDEX. DEFINITIONS— Continued. letter of credit. § 2858. special, § 2801. general, § 28G1. libel, §4.x lien, § 2872. general, § 2874. special, § 2875. loan for use, s 1884. for exchange, § 1902. of money, § 1912. loss, total, § 2703. loss, partial, § 2702. actual total, § 2704. constructive total, § 2705. luggage, §2181. manager of ship, § 2170. managing owner, § 2170. marriage, § 55. master, §2009. mate, § 2048. maturity, apparent, § 3132. menace, § 1570. minor, § 25. mistake, § 1576. of fact, § 1577. of law, § 1578. of foreign law, § 1579. month, § 14. mortgage, § 2920. mutual consent, § 1580. navigation, foreign, § 962. domestic, § 962. neglect, willful, § 105. negotiable instrument, § 3087 notice, actual, § 18. constructive, § 18. novation, § 1530. nuisance, § 3479. public, § 3480. private, § 3481. oath, § 14. object of contract, § 1595. obligation, S 1427. conditional, § 1434. ownership, § 654. absolute, § 679. qualified, §680. several, § 682. INDEX. lu DEFINITTONS-Coiitinu.'d. ownership, joint. § (>83. p.-irtncrsliip. § cs}. in cominoii, § csr.. partnorsliip, § 2;'.0r). general. S 2424. special. § 2478. partnorsliip property, §2401. payment, § 147S. perils of the sea, § 2199. person, § 14. personal property, §§ 14, 663. pled ire, § 20SG. . IthMlii-e-hohier. § 2098. policy of insurance. § 2r)8G. open. § 2r>9.'). valued. § 2r)0n. rnnnin3. recrimination. § 122, reinsurance, § 2040. remainder. ^ 7(59. respondentia. ^ 3030, reversion, S 768. sale. § 1721. sale by auction, § 1792, satisf.iction. § 1523, seal, i^ 14. seamen. § 2049, sea^yorthiness. § 2082. servant. § 2009. servient tenement, § 803, servitude's. § 802, several. § 14. ship. § 900. appurtenances of. §901. domestic. § 90.">. foreijj:n. >^ 903. ship's manajrer, ^i 2170. sijjnature, § 14. 916 INDEX. DEFINITIONS— Continued. slander, § 46. specific relief, § 3367. storage, § 1851. succession, § 1333. surety, § 2831. thing in action, § 953. trademark, § 991. transfer, § 1039. transportation companies, p. 828, § 14, Stat. trust, § 2215. voluntary, $ 2215. involuntary, § 2217. trustee, § 2218. trustor, § 2218. undue influence, § 1575. unlawful, § 1667. vessel, § 17. ward, § 236. warranty, § 1763. will, olographic, § 1277. writins:, § 14. DEGREES of kindred, how established. § 1389 DELAY, reasonable grounds for, rebuts presump- tion from lapse of time, § 126. in performance compensated for, when, § 1492. how excused, § 1511. carrier of persons to travel without unreason- able, § 2104. notice of loss under insurance to be give without, § 2633. in giving notice of loss, how waived, § 2636. deemed deviation, when, 2694. of creditor does not discharge guarantor, 2825. in presentment of notice of dishonor, how ex- cused, § 3158. in presentment of bill of exchange, effect, § 3189. in presentment of bill of exchange, how ex- cused, § 8219. in presentment of promissory note, effect, § 3248. in presentment of check, effect, § 3255. in protest, how excused, § 3230. DELINQUENT assessment, sale of stock for, | 341. assessment, action to recover stock sold for, § 347. ■I INDEX. 917 DELIVERY (loomed tlnio of oroalloii of intoroHt. § 749. of errant necessary to vest title. 5 lO'A presumption of time of. 8 10r>r>. to ffrantoo, nocossarilv absolute § lor»<5 in escroAv. § lor»7. constructive. >j lor.O. of prift necessary to validity. § 1147. of contract in writing', provisions applicable to. § 1020, of groods sold, where, § 17r>4. of goods sold, expense of. § 17r»r.. of goods sold, notice of election as to mode of, § 17r)(). of goods sold, buyer's directions, § 1757. of goods sold, when to be made, § 1753. thing bought, to be paid for on. § 17.H4. of thing deposited, on demand. § 1822. of thing deposited, demand necessary, § 1823. of thing deposited, where, § 1824. of thing deposited, bv .ioint owners, § 1827. of freight, to whom. § 2118. of freight, where. § 2119. of freight, to holder of bill of lading siitli- cient, § 2131. essential in pledge, § 2988. DEMAND, when restoration of thing wrongfully taken to be upon, § 1713. goods sold to be delivered upon, § 175:^ thing deposited to be delivered on. § 1S22. thing deposited need not be delivered without, § 1823. thing lent to be returned without, when, § 1895. thing lent need not be returned unless on, when, § 1895. employee, to render account without. § 198G. emplovee, when not bound to deliver without, § 1987. servant to deliver without. § 2014. agent to deliver to third person «)n. when. S 2344. upon guarantor, unnecessary. § 2S07. of performance on pledgor must be before sale of pledge. S 3001. of performance, how waived, § 3004. of payment of negotiable instrument, whi^n necessary, § 3130. 918 INDEX. DEPOSIT. See Depositary; Pledge; Storage; Warehousemen, in savings bank may be collected by surviving husband or wife, when, § 579. of money in payment of debt, § 1500. kinds of, § 1813. voluntary, § 1814. involuntary, § 1815. defined, § 1817. gratuitous. § 1844. gratuitous, involuntary is, § 1845. gratuitous, obligations of depositary on, § 1846. gratuitous, duties of depositary on, when cease, § 1847. for reward, called storage, § 1851. for reward, degree of care required, § 1852. for reward, rate of compensation, § 1853. for reward, how terminated, §§ 1854, 1855. with innkeeper, §§ 1859, 1860. of thing found, § 1864. of Thing for exchange, § 1878. of thing pledged, by gratuitous pledge-holder, § 2995. sale of property to satisfy lien, §§ 1856, 1857. lien of depositary for hire, § 1856. DEPOSITARY, person offering thing in perform- j ance, § 1503. gratuitous, when creditor is, § 1605. seller of personal property, when, § 1748. defined, § 1814. who bound to become, § 1815. duties in case of involuntary deposit, § 1816. to deliver on demand, § 1822. not bound to deliver without demand, § 1823. to deliver where, § 1824. to give notice of adverse claim, § 1825. may exonerate himself by giving notice, when, i § 1826. to deliver to joint owners, how, § 1827. ' depositor must indemnify, when, § 1833. of animals must provide for them, § 1834. not to use deposit, § 1835. ,. , liability for wrongful use, § 1836. M may sell deposit, when, § 1837. yI to give information of cause of loss, § 1838. duties and liabilities in respect to service, § 1839. liability for negligence, how limited. § 1840. gratuitous, must use what care, § 1846. i INDEX. tl» DEPOSITARY— ContlniKMl. irnituitous. diitios of. whou conso. | 1847 for hire. dofiiUMl, § IKol. for hire, must us.> ordinarv faro. 8 l,Hr»2 for hire, rijihts of. § lHr»3. ' for hire, dnlios. how teriniiiatod. §8 18r>4, 1855. innkeeper ns. li:i])ility. § is.'.l). for hire. tin(h>r of lost property, § isr»4. for cxchau.ire. § ISTS. vohintary. nblifjations of. §2078. has insurable interest. § 2."V4S. when i)l('(lLreo for reward. S 2;>1>S. act conipellinji- all depositaries of money to publish statement of unclaimed deposits, p. 71G, Stat. depositary for hire, lien of. § lS.'r». DEITTY may take aeUnowhMl<,Mnent. § nS4. DESCENTS. See Succession. DESCIiirTION, error of. in will, how ri'm»'died. § 1340. a.£:reement to compensate for errors of. when does not prejudice rijiht (»f rescission. { KiDO. DESERTION, as ground of divorce. J^»e Divorce. of seamen. See Seamen. of ship. See Shippiu}?. DESTRI'CTION of willis revocation, §1292. of will, how proved, § 1293, of written contract, effect, §§ 1G99. 1700. DETENTION of person or property avoids con- tract, when, § 1569, of property, damajres for, § 3335. DETRIMENT, See Damages. DEVIATION, carrier must not make, § 2104. effect of, on insurance. See Insurance. DEVISE, See Will. DILKtENCE, great, bv employee for his own ben- efit, § 1979. ship-master. § 2(U3. carrier of messages for reward, § 2102. utmost, by carrier of persons for reward. § 2100. Ordinary, by agent, § 2020. by voluntary agent. § 2* ►78. ' gratuitous carrier of persons. § 2(HC». carrier for property for reward, § 2114. trustee, § 2259. Slight. l)y gratuitous employee, } 1975. gratuitous carrier of property must use, § 2114. 920 INDEX. DIRECTIONS of buyer as to delivery of goods, § 1757. employee to follow, § 1981. factor to follow, § 2030. carrier to follow whose. §§2115. 2116. trustee must follow, § 2258. DIRECTORS of corporations. See Corporations. DISAFFIRMANCE, minor mar contract subject < to, § 34. j how affected by minor, § 35. when minor cannot exercise, §§ 3G, 37. I DISCHARGE of employee, §§ 1996, 2000. I of servant, § 2015. | of trustee, §§ 2233, 2282. of trustee, duties of, before accepting his, § j 2260. i of trustee, who succeeds after, §§ 2287-2289. of principal does not discharge guarantor, when, §2825. DISTRIBUTION of community property on di vorce, § 147. order for, subject to revision on appeal, § 149. of capital stock, on dissolution of corporation, §315. of property of intestates, §§ 1384, 1386. effect of advancements on, §§ 1390-1394. DISTRICT ATTORNEY, duty to prosecute and defend suits for railroad commissioners, p. 824, §4, Stat. DIVIDENDS. See Corporations. DIVORCE, judicial determination of incestuous or void marriage, § 80. dissolves marriage, § 90. defined, § 91. for what causes granted, § 92. adultery as ground for, § 93. extreme cruelty, § 94. willful desertion, § 95. constructive desertion, § 96. in case of stratagem or fraud, § 97. in case of cruelty, § 98. separation by consent not desertion, § 99. separation and intent not always coinciden §100. refusal of reconciliation after separation, § 10: refusal of condonation, § 102. desertion, how cured, § 102. if wife refuses husband's reasonable place o: residence, § 103. INDEX. 121 DIVORCE— Continued. if i>lace unfit, and she rt'fus«'s. husband rom- mits, § 104. willful nofflect. § lOf). habitual intenipcranoo. § Km;. certain causes for, must exist how lonir 8 107 when to be dmled, ?;§ Ill, 112, 124. collusion, denial for. §111. connivance as pround for denviufr. § 112. corrupt consent, how nianifeste. not to be granted by default. § 1 :*.(». when denied, certain relief allowed. § l.'?6. expense of action and alimony, i 147. appeal In action for, § 148. advertising to procure a divorce is a ndsde- meanor. See I'enal Code. § l.'iO'o. divorced persons cannot remarry within one year, § Gl. DOMINANT TENEMENT. See Easements and Servitudes. DOUBLE INSURANCE. See Insurance. DOUBTFUL WORDS in will. § 132.3. in contract, § 1G54. 922 INDEX. DOWER, not allowed. § 173. DRAWER AND DRAWEE. See Bill of Exchange. DRUNKENNESS. See Intoxication. DUETy. damages for injuries inflicted in, §§ 3347, 3348. DUPLICATE of will, revocation of. § 1295. alteration of copy of contract, § 1701. DURESS, will or revocation procured through, denied probate, § 1272. defined, § 1569. contract under, voidable, §§ 1576, 1689. EARNINGS of wife not liable for husband's debts, §168. of wife living separate, separate property, § 169. of minor children, § 169. of legitimate unmarried minor, § 197. of illegitimate unmarried minor. § 200. EASEMENTS AND SERVITUDES, to water to irrigate lands, sold by water or Irrigating company, § 552. what are easements, § 801. when held apart from land, § 802. "dominant tenement" defined, § 803. "servient tenement" defined, § 803. by whom grantable, § 804. by whom held, § 805. extent, how determined, § 806. partition of, § 807. how far usable by expectant owner, § 808. who may enforce, § 809. not to disqualify owner from recovering pos- session, § 810. extinguished, how, § 811. what pass by transfer of property, § 1104. support to land, § 801. ELECTIONS, day of, a holiday, § 7. corporation, how conducted, § 307. ELECTRICITY, act validating grant of franchise to propel cars bv, p. 818, § 1, Stat. EMPLOYMENT. See Liens; Services; Wages. defined, § 1965. confidential obligations, where regulated, §1 1992. termination by death or incapacity, § 1996. when services to be continued after notice, 1998. termination. § 1997. termination at will, § 1999. INDEX. Ml EMPr.OYMKNT— roiitiiiued. terminatiou by employer, for fault, {2000. 1erniiu;ili(.n by euiployec. for fault, j liiKM*. tt'riniii.itoil r(»i- (•;iiise. •'iiii»loyoe not «'ntltle. gratuitous obligations of, §S 1975, 1970. with power of attorney, >; 1977. for reM'ard, obliiiations, § 1978. for his own benelit, obligations, § 1979. not bound for more than two years, § 1980. to obey employer, § 1981. to serve according to usage, S 1982. to use reasonable skill, § 1983. to use whatever skill he has, § 1984. everything acquired by virtue of employment belongs to employer, § 1985. to give account, § 1980. not bound to deliver without demand, § 1987. to give preference to employer's business, i 1988. to give preference to several employers In i»r- der, § 1988. how far liable for substitute. S 1989. I surviving, when to act, § 1991. discharged by notice of death or Incapacity of employer, § 1990. when to continue service after employer's death, etc., § 1998. 924 INDEX. BMPLOY]MENT— Continued. entitled to compensation from employer's suc- cessor, § 1998. discharged for fault, § 2000. may quit service, when, § 2001. compensation when dismissed for fault, § 2002. compensation when quits for cause, § 2003. ENCLOSURES. See Inclosures. ENEMY, PUBLIC. See War. performance prevented by, § 1511. innkeeper not liable for damages caused by, § 1859. carrier not liable for damages caused by, § 2194. cannot be insured, § 2540. ESCHEAT, when State takes property by, §§ 1406, 1407. ESCROW, delivery in, § 1057. ESTATES in dower and courtesy abolished, § 173. interests in real property are, § 701. qualities of expectant. §§ 699-700. in real property, § 761. fee simple, § 762. fees tail abolished, § 763. freeholds, § 765. for years, § 765. at will, § 765. for life of third person is a freehold, § 766. future, § 767. in reversion, § 768. in remainder, § 769. successive, for life, limitation on, § 774. successive for life, remainders on, § 775. creation of remainders, future and contingent estates, § 772. termination of, § 789. of intestates, succession to, § 1384. of intestate, how distributed, § 1386. See Interests; Real Property. EVIDENCE. See Oral Statements; Presumption; Witnesses. of witness, privileged, § 47. of condonation, §§ 118, 119. divorce not to be granted on uncorroborated, §130. record of inventory of wife's property, § 166. certified copy of articles of incorporation, § 297. handwriting to instrument, § 1199. INDEX. Ml EVIDENCE— Continued. certitioatc of ship-niaRter to oxertlons to save vessel, § 2059. certifioate of chanpe of naiiu-s in partncrKhlp. § 2471. of loss ^Mven to insurer, § 2(^,4. EXCHANGE, wlien personal property passes bv §1140. • . » when personal property passes umler exeeutory ajrreement, § 1141. defined. § 1804. form of contract, § 1805. of money implied warranty, § 1807. deposit for, § ISIS. deposit for, relation of parties in. § 1878. rights and obli?:ations of parties, § 280G. bill of. !See Bill of Exchange. EXECUTP:I> contract, voluntary transfer. §1040. consideration or executory, § 1(509. contract, defined, § 2001 . ' EXECUTION of written instrument, § 14. sale of franchise of coritorations under. § .'188. proceedings under, against corporations, § 30.3. chattel interest not liable to sale under. § 7(>5. exemption of homestead, ij 124<>. debts for whicli homestead lial)le, § 1241. of instruments atfectinj,' liomesteads, § 1242. proceedings on, against homestead, 1245. of homestead declaration, § 12(R). of codicil, effect on previous will. § 1287. of accord, necessary to validity. S l."'»22. of contract in writing, elfect of, § 1025. I when principal bound bj' incomplete, § 2Ji31. ' when principal bound by, in excess. S 2333. lEXECUTOliS AND ADMINISTKATOKS. See I Personal liepresentaiives. i when may bind to apprenticeship, § 207. who entitled to letters, § 1371. i cannot have power to appoint executor, § 1372. ' not to act till qualilied, § 1373. power of to bind minor as apprentice, p. 7U», § : 7, JStat. ' act authorizing corporation to act as executor, I p. 754, Stat. foreign executors or administrators, satisfac- tion of mortgages by, § 2'.»;:0',:j. ■:xi:CLTUltY, grant on conditiou precedent, S 1110. Civ. Code. 78. 926 INDEX. EXECUTORY— Continued. agreement transfers title, when, § 1141. consideration, § 1609. consideration need not be stated, § 1610. consideration ascertained, how, § 1611. contract of marriage to be in writing, § 1624. contract defined, § 1661. agreement for sale of real property, § 1731, contract, covenants when required by, § 1733. instrument in writing, implied warranty on sale. § 1774. EXEMPLARY DAMAGES, minors and persons of unsound mind not liable, § 41. allowed when, § 3294. EXEMPTION of homesteads from forced sale, §§ 1240, 1241. of property from operation of mortgage, § 2965. EXONERATION of innlieeper from liability, § 1860. of finder from liability, § 1865. of owner from claim of finder, § 1871. of lender from liability, § 1892. of ship-master, on abandonment, § 2041. of carrier, on delivery to holder of bill of lad- ing, § 2131. of partner, on renunciation of future profits § 2417. of guarantors, § 2819. of surety, §§2840, 2845. of gratuitous pledge-holder, § 2996. EXPRESS contract. See Contracts. trust. See Trusts. EXTENSION of time of delinquent sale of stocl §345. of existence of corporations, §§ 401, 402. of time of performance of contract, § 1698. EXTINCTION of contracts. See Contracts. of liens. See Liens. of negotiable instruments. See Negotiable In- struments. of obligations. See Obligations. of trusts. See Trusts. FACTOR defined, § 2026. duties, §2027. may sell on credit, §§ 2028, 2368. liability under guaranty commission, § 2029. cannot relieve himself from liability, § 2030. actual authority, § 2368. ostensible authority, § 2369. INDEX. nr FACTOR-Contlmied. fTuaranty need not be in writlncr. 5 2TrM lien, § 30(51. FACTS, oonoonlmont of in certain oases nmkes condonation void. § 120. mistalvo of, dofinod. § ir>77. mistalvp of forciirn law is mistako of. $ l.'iTO. actual fraud a (i nest ion of. § l.''»74. fraudulent intent a question of, § 3442. F'ALSE. See Misrepresentations. representation in insurance, fi 2r)70. representation in insurance, efTeet. § 2r>80. representation in marine insurance, effect, $8 2<;7(;. 2(>77. certilicate by otficer of corporation, § 31G. FAKE. See Ticket. on street railroad, p. 820, Stat. may be demanded at any time, § 2187. passenirer may be elected for not paying, 5§ 487, 2188. when passenger required to pay increase of, § 2189. ejectment of passenger forfeits right to, § 2100. carrier's lien for, § 2101. FATHER, of what minor entitled to custody and services. § 107. consent of. to apprentice child, § 2G5. FEE SLMPI.E. defined, § 702. words of inheritance unnecessar.v, § 1072. title wlien presumed to pass, § 1105. IfEE tail al)olished, § 7<;3. !FEES for recording bank statements, §321. county clerk, fees in proceedings for removal of ofHcers of mining corporation, p. 800, § 5, Stat, sheriffs, on assignment for benefit of cred- itors. § 3440. commissioners of assignees for the benefit of creditors, § 3471. FELONY, ground for divorce, § 02. limitation of action of (iivorce for, § 124. warehouseman, when guilty of, p. 842, 9 10, Stat. FEMALES under eighteen, minors, § 2r>. of fifteen may marry. S nr.. FEME COVEKT. See Husband and Wife; Mar- ried Women. ?'ENCES. right of. bv coterminous owm r. an ease- ment, § 801. 928 INDEX. FENCES— Continued. tenant for life to repair, § 840. coterminous owners, when bound to maintain, §841. FERRY CORPORATIONS. See Corporations. FICTITIOUS name in partnership may be used, §§2466, 2467. payee, §2103. FILING of inventory of wife's separate property, §165. effect of such, § 166. of articles of incorporation. § 296. of articles prerequisite. §§ 293, 296. of articles, duty of secretary of state, § 296. affidavits of sale of delinquent stock. § 348. FINDER not bound to take charge, § 1864. takinir charge is depositary for hire, § 1864. notice to owner, § 1865. proof of ownership. § 1866. compensation, § 1867. may exonerate himself by storing, § 1868. may sell thing found, when, § 1869. sale, how made, § 1870. owner may exonerate himself by surrendering, § 1871. absolutely entitled to thing abandoned, § 1872. FIRE, involuntary deposit in case of, § 2815. duty of depositary, § 2816. FIRE INSURANCE. See Insurance. FIRE PATROL, equipment and employment of, p. 766, §1, Stat. privileges of, p. 767, § 2, Stat. cost and expenses of maintaining, how assess- ed, p. 768, Stat. FISHING, right may be held as easement, § 801. right may be held as servitude, § 802. FIXTURES, real property, § 658. what are, §§ 660, 661. ownership of, § 1013. what may be removed by tenant, § 1019. mortgage, a lien upon, § 2926. FORCE. See Duress. in protecting person, property, and relatives, §50. marriage obtained through, voidable, § 58. marriage obtained through, may be annulled, §82. FORECLOSURE of redemption of mortgagor, 9$ 2931, 2967. INDEX. $m FORECLOSURE-Contlnuod. of refloniption. bv plo;§ 2562, 2569. return of premium in insurance, for, § 2619. insurer, when liable for loss through, § 2629. in valuation under marine insurance, § 2736. misrepresentation by debtor as to value of pledge, § 2999. exemplary damages given in case of, § 3294. interest as damages given in case of, § 3288. instrument, when void against creditors, § 3439. instrument, avoided by judgment creditor only, § 3441. intent, question of fact, § 3442. undue iutluence. See Undue Influence. FRAUDS, STATUTE OF, what contracts to be, in writing, § 1624. INDEX. m FRAUDS, Stntntcf? of— Continued. sales of ixMsonalty. § 17.'?J>. sales of realty. §1741. PRATJDl'LKNT Conn KYANTHS. snle of wlno. in winery, how may be made, § :\4A(). volunlary oonvoyanoe in contemplntlon of In- solvency is void, § 3442. voluntary oonvoyance by Insolvent is fraudu- lent, §8442. chanue of i)()ssossion not necessary on sale of wine in winery, § .3440. FREE PASSES, what railroad companies may irrant. § 4J)1. FIIEE1I()L1> defined. Sir..'"). FKEKJIIT AND FKEKJHTAdE. when wa-es of seamen depend on freij^hta^e, § 20.>t. when waces of seamen do not dei>end on freichtaue. § 2058. defined. § 2110. whose directions crovern delivery of. 5 2115. carrier must not stow on deck. §2117. where to be delivere0. in view of death, revocation of, § ll.'jl. in view of death, effect of will upon. 5 lir>2. in view of death, when treated as leiracy, | lloS. to subscribing: witness to will, void when. 9 1282. subscribing witness may take as much by, as I)y succession. § 1283. counties, cities, and towns, may take by, | 1313. certain words In will, when words of. 5 133.'5. ademption of lejjacy. when. § l.^i^T. in view of death, may be satisfied. § 1301. husband cannot make sxift of community prop- ertv. § 172. GOOD FAITH. See Bona Fide Pnrcliasera. offer of performance to be in. § 1403. trustee bound to hiirhest. § 2228. partner bound to hinhest. §2411. partner wlien not bound by act in. §2131. principal bound to persons actinir in. §2.3.34. aprent not bound by act In, § 2,343. ajrent indemnified for a44. property. §§ . '^^ surety cxoneratod in like niannor with guaran- tor. § 2840. surety has all ri^lits of ;,'iiaraiit<)r. ^ 2.M4. iiidorser has i-i^dits of ^^uarantor. § ."',121. GUARDIAN AND WAIU). le;ral pn.cce.lluk'S by minor to be conducted through K'uardlan, §42. appointment of, supersedes i)arent. § 204. j^uardian, what, § 2,'}(>. ward delined, § 2;i7. Icinds of ;j:uai-dian, {? 2:>8. j,'eneral guardian, wliat, § 23J). special guardian, what, § 240. appointment of guardian by parent, § 241. no person can be guardian of estate without appointment, § 242. appointment of guardian, §§ 243, 244. jurisdiction of guardians, § 245, rules for appointment of general guardian. { 240. powers of guardians appointcnl by court, § 247. duties of guardian of person, § 248. duties of guardian of estate, § 249. relation of guardian and ward conlidentlal, 9 251. death of joint guardian, § 232. removal of guardian, § 2r».;. appointed by parent, how superseded, § 254. appointed by court, how supeVsede; 258. may consent to apprenticeship of ward, when, §205. GUEST, innkeeper's liability for personal prop- erty of, §§ 1859, 1800. HABITUAL INTEMl'ERANCE ground for di- vorce, § 92. to continue how long, § 107. HALF-BLOOD kindred inherit equally with whole blood. S 1394. HANDWRITING, execution of instrument proved by, Avhen, § 1198. HEAD OF A FAMILY, husband is, §150. phrase, deiiued. § 1201. 936 INDEX. HEIRS of minor, when and how to disaffirm con- tract, § 35. may dispute legitimacy of issue, § 195. of tenant for life, when take as purchaser, § 779. construction of word, §§ 1071, 1329. inheritance by. See Succession. HIGHWAY, transfer of land, bounded by, § 1112. HIRING. See Loan. depositary for, when person offering thing in performance is, § 1503. depositary for, when seller of personal prop- erty to act as, § 1748. defined, §1925. hirer entitled to product of thing during, § 1926. covenant for quiet possession implied in, 1927. hirer to use ordinary care, § 1928. hirer to repair certain injuries, § 1929. hirer may use thing let, for what, § 1930. letter may terminate, when, § 1931. hirer may terminate, when, § 1932. when terminates, § 1933. when terminates by incapacity or death of par- ty, § 1934. apportionment of hire, § 1935. obligations of parties, §§ 1955-1958. of ships, § 1959. HOLDER of negotiable instrument may make in- dorsement special, how, § 3114. presentment by, § 3131. to surrender on payment, when, § 3137. to give receipt, when, § 3137. to indemnify payor, when, § 3137. to give proof of loss, when, § 3137. notice of dishonor given by, § 3142. notice of dishonor when to be mailed, § 3148. notice of dishonor by agent, § 3149. what information excuses presentment, § 3156. payment to, when sutticient, § 3164. of'^bill of exchange to treat it as dishonored, when, §3194. may receive qualified acceptance when, § 3195. not bound to receive acceptance for honor, § 3204. must receive payment for honor, § 3204. must give notice of dishonor, notwithstanding acceptance for honor, § 3206. INDEX. 117 HOLDER— Continued. for vnluo, entitled to rortnln damairos. 13234 HOLIDAYS, what aro, §§7, 8. bow coinputed lu reference to rMjrformance. §§ 10. 11. HOMESTEAD, defined. § 12,".7. from what property taken. § \2P,H. husband cannot select from separate property of wife. § 1239. exempt from execution, wlien. j 1210. debts from which not exempted, § 1241. conveyance of mortgaj,'es of, how ex<'<'uted. § 1242. how abandoned, § 1243. declarati«/n of abandonment. § 1244. proceeding's wlien exceeds exemption. § 121.'. application for appraisers, § 121(). petition tiled wiih county clerlv, ^ 1247. copy of petition served on claimant, § 1248. appointment of appraisers, § 124l>. oath of appraisers, § 12.'jU. duty of appraisers, § 1251. report of ai)praisers, § 1252. proceedinj;s on report, §§ 1253-1257. fees of appraisers, § 1258. alienation of, in case of insanity, p. 771, Stat when title perfected, § 12r»5. tenure by which held. § 12* ;5. of other than head of family, ii 12<;(;. proceeding to obtain by other than head of family, §§ 12GG-12(i'J. who may acquire, and of what value. § 1200. declaration, what to contain, § 12U;. "head of the family" delined, S 12tjl. declaration to be recorded. § 120^1. HOMESTEAD COKI'OKATIONS. Sec Cctih, ra- tions. HOTEL-KEEI'EKS. See Innkeepers. HUSBAND AND WIFE. See Married Women. abduction of husband and wilV, § 4l>. husband to select residence, § 1U3. wife to conform to selection of home, or she commits desertion, § 1(J3. if unlit, and wife refuses to conform, he com- mits desertion, § 104. willful neglect to provide for wife, ground for divorce, § 105. husband may be compelled to give alimony, §§ 130, 137, 130. Civ. Codo -79. 938 INDEX. HUSBAND AND WIFE— Continued. security for alimony. § 140. property to be resorted to for alimony, § 141. when allowance may be withheld from wife, §142. legitimacy of issue when divorce granted for adultery of husband, § 144. legitimacy of issue, where divorce granted for adultery of wife, § 145. mutual obligations of, § 155. husband is head of family, § 156. Interest separate in certain respects, § 157. wife may malie contracts, § 158. how far may impair their legal obligations, §159. mutual consent to separation, sufficient con- sideration, § 160. may be joint tenants or tenants in common, §161. separate property of wife, § 162. wife may dispose of separate property with- out consent of husband, § 162. separate property of wife, § 163. common property of, §§ 164, 687. inventory of separate property of wife, § 165. effect of recording inventory of separate prop- erty of, § 166. wife may contract for payment of money, § 167. not liable for debts of husband, § 168. earnings of wife living separate, separate property, §169. husband not liable for debts of wife contract- ed before marriage, § 170. wife not liable for debts of husband, § 171. property of wife liable for her own debts, §171. power of husband over common property, § 172. husband not allowed estate by courtesy, § 173. wife not allowed estate in dower, § 173. husband liable for support of wife, § 174. husband not liable, if wife abandons, § 175. when wife to support husband, § 176. property rights of wife, how governed, § 177. marriage settlements of, how executed, § 178. living separate, neither has superior right to custody of child, § 198. husband not bound to support stepchildren, § 209. INDEX. m HUSBAND AND WIFE-Contlnue.l. consent of wife necessary for husbuud to adopt child. § 22.'?. siirvivinir lHis]>and or wife may collect depot- its in savinirs hank, whon, § TiTD. hiisl)aud cannot s«>l('cl homestead from nepa- rate property of wife, § 1230. ■wife must join in conveyance of homcHtead, § 1242. wife when head of family. §1201. joint tenancy in homestead. § 12«;.'>. consent of liusband not necessarv to wif.-'g will. § 1273. inheritance between, § 1400. distribution of common property on deatli of wife, § 1401. distribution of common property on death of husband, § 1402. disposition of common property on death of husband. § 1402. contract obtained from wife by duress of hus- band voidable, § 15()J). contract ol)tained from wife bv menace void- able, § 1570. communitv or separate property, presumption as to, § 104. community property, gift of, power to make, §172. community property, conveyance of, action to recover when barred, § 1G4. I presumption as to projx'rty conveyed married ' woman and otliers. § 1<>4. separate property. i)rcsumi)tion that property ' conveyed wife is, § 1(^4. I action to recover property conveyed by mar- , ried woman, when barred. § 1C4. conveyance by married woman, lindtation of ! ac1i(»n 1)V hiisband or heirs to recover. § lti-4. IIDENTIFICATION of contracting parties, § ir.58. "idiots. See Persons of Unsound Mind. IDLE ACTS, law does not require. § :\y.V2. IGNORANCE, mistake of fact through, renders contract voidable. §§ I.'Cm. ir»77. [LLEGITniACV. See Legitimacy, who may raise question of, § 10.'). proved, iiow. § 105. mother entitled to custody of illegitimate child, §200. 940 INDEX. ILLEGITIMACY— Continued. effect of subsequent marriage of parents, § 215. consent of motlier necessary to adoption, § 224. effect of adoption. § 230. appointment of guardian for child, § 241. child, when tal^es by succession, § 1387. mother succeeds to property of intestate, § 1388. IMPOSSIBILITY, condition void on account of, § 1441. of ascertaining object of contract, § 1596. defined. § 1597. of performance, when avoids contract, § 1598. of ascertaining consideration, §§ 1612, 1613. law does not require, § 3531. IMPROBABILITY of contingency does not ren- der future interest void. § 697. INCAPACITY, to contract, §§39, 40. to consent ground for nullity of marriage, § 8S physical ground for annulling marriage, § 82. terminates hiring, § 1934. terminates agency, § 2355. INCEST defined, § 59. judicial determination of marriage in case ofJ §80. INCIDENT passes with principal, §§ 1084, 165f 3540. INCOME defined, § 748. disposition of, governed how, § 722. accumulation of, allowed when, § 724. accumulation of, directions for, void when, §§ 723, 725. allowance out of, § 726. undisposed of, who entitled to, § 733. INCOPvPOKATION. See Corporations. INCREASE. See Accession. of property belongs to owner, § 732. of property lent belongs to lender, § 1885. of property hired belongs to hirer, § 1926. freightage not charged for natural, of freight, § 2139. of property pledged, is pledged, § 2989. INCUMBRANCER, resulting trust not to preju- dice, § 856. grant, how far conclusive as to, § 1107. incumbrance defined, § 1114. instruments, when void against, § 1227. instruments, when not void against, § 1228. IN'DKX. 541 INCTTMBKANCER-Contliuiod. grant as revocation in fav(»r of. whon. § 1229. incumbrance ImposfMl on dovisod pronorty. § 1302. ^ ^ rights of, nndrr (Icvisoo. when not Impaired by his convoyanco. § VMVi. when personal mortgage void against Bubso- quent. § 8048. lien of seller or buyer not valid against subse- quent. § 2057. covenant acainst all. damages for breach § 3805. obligation respecting renl property not enforced agninst subsequent. >; 8.'>05. certnin transfers void nuainst. §.''.-140. INDEMNITY by depositor. §1888. ' vi^hen emplov(^e entitled to. Jj^ lOr.O, 1071. to trustee, § 227:5. to partner. § 2412. measure of. under marine insurance. § 2736. measure of. under tire insurance. . §>; 2r.(;. :;75. necessary to transfer shares of sty neirlect, §i5 1714. 1838. innkeeper, when not liable for. to ^niest'H prop- erty, f^ 1800. borrower, when to repair. § 1880. hirer, when to repair, § 1020. to ship, lial)ilities of seamen for. § L'4. liabilities of marine carrier for, § 2107. INNKEEPERS. See Lodjj:ini;-lionses. liability as dej)ositary. § IS.IO. exempted from lia])ili'ty, how, § 1800. lien of. on bajr;:a.!,^e. § 1801. sale of unclaimed ba^iga^'e for storage, etc., § 1862. postiujr of statement of charges, etc., § 1863. liability of hotel-keeper, limitation of, §§ 1859, 1800. liability of innkeeper, limitation of, §§ 1859, 18(i0. INSANITY. See Persons of Unsound Mind. childi'eu of marriages annulled for, § 84. alienation of homestead, in cases of, p. 771, Stat. ^ INSOLVENCY defined, §3450. of special partnership, § 2401. of special partnership, preferential assign- ments forbidden, § 2400. of principal in guaranty, § 2S02. of consignee, § 3077. consigntu" may stop goods in transit on, of con- signee, § 31)80. See Code of Civil Proceedure, Appendix, title Insolvency. INSPECTION of things sold with warranty, § 1785. INSTRUMENTS, containing condition wrong per se, void, § 700. affecting title to real property, ownership of, § 904. by married women, acknowledged, how. § 1093. by attorney in fact, executed, how. § KKM. evidencing title declared by judgment, how proved by record, § 1150. what not to be recordetl, § 11(51. proved by other than subscribing witness, how recorded, § lir,2. 944 INDEX. INSTRUMENTS— Continued. execution of, proof of. how made. §§ 1185, 1198. subsequent recording of prior, void as to sub- sequent. § 1203. unrecorded, valid as between parties with no- tice. § 1217. certain non-negotiable written, transferable, § 1459. in writing prima facie import consideration, § 1614. burden of proof, showing want of considera- tion, § 1615. distinction between sealed and unsealed abol- ished. § 1629. Fraudulent, when void against purchasers, § 1227, when not void against purchasers, § 1228. power to revolve, when executed, §§ 1229, 1230. provisions concerning, § 1231. void against creditors, when, § 3439. valid In favor of purchaser, when. § 3441. avoided by judgment creditor only, 3442. Unrecorded, valid as between parties and privies, § 1217. INSULT, right of protection from, § 43. INSURANCE. See Contribution; Loss; Sea- worthiness. insurance corporations. See Insurance — Kinds of. special partnership cannot carry on, § 2477. defined. § 2527. what subject to, § 2531. lottery or lottery prize not subject to, § 2532. usual liinds, § 2533. parties defined, § 2538. parties who may be, §§ 2539, 2540. by mortgagor in favor of mortgagee, § 2541. transfer of, to mortgagee, § 2542. in general defined, § 2546. may consist in what, § 2547. by carrier or depositary, § 2548. mere contingency or expectancy not subject of, § 2549. measure of interest, § 2550. void if insured has no interest, § 2551. when interest must exist, § 2552. change of interest suspends, § 2553. after loss does not suspend, § 2554. INDEX. 941, INSURANCE-Continucd. in thine: sopnrntolv insurod (lrw»s not susiw-ikI. § 2555. by succpssion doos not avoid. 5 255r». from ono joint owner to another 0. general description in, to wli(»m applicable, § 2591. for benefit of successive owners, 8 2592. not transferred by transfer of thing insured, § 2593. policy of, open, defined, § 2595. valued, defined, ji 259(5. running, defined, S 25!>7. efl."ect of receipt in. § 2598. agreement not to transfer claim under, void, § 2599. warranty in, defined, § 2003. 946 INDEX. INSURANCE— Continued. form of warranty in, § 2604. policy may provide for avoidance, § 2611. express warranty must be in policy, § 2605. warranty may relate to past, present, or fu- ture, §2606. express warranty, defined, § 2607. as to future, defined, § 2608. performance of, when excused, § 2609. breach of material warranty ground for recis- sion, § 2610. breach of immaterial warranty does not avoid, § 2611. breach of warranty without fraud, effect, § 2612. premium, how payable, § 446. premium, rate of, must be specified in policy, § 2587. premium, effect of receipt of policy, § 2598. premium, when earned, § 2616. return of, when due, § 2617. fire patrol. See Fire Patrol. foreign companies doing business on assess- ment plan, requirements of, p. 780, § 6, Stat. when none allowed, § 2618. return of. when not due, § 2619. in case of over-insurance. § 2620. contribution to, §§ 2621. 2622. perils insured against, what may be, § 2531. perils, what covered, § 2626. perils, loss incurred by rescue from, covered by, § 2627. perils excepted, § 2628. caused by fraud, when not covered, § 2629. notice of loss, § 2633. proof of loss under, § 2634. notice of defects or delay, how waived, § 2635. proof of defects or delay in notice of loss, how waived, § 2636. proof of loss by certificate, when excused, § 2637. double, defined, § 2641. contribution under, Ji 2642. reinsurance, defined, § 2646. what must be communicated on, § 2647. presumed to be against liability, § 2648. original insurer has no interest in, § 2649. Fire, effect of alteration in thing, §§ 2753, 2754. how affected by acts of insured, § 2755. INDKX. MT INSURANCE Coiitinu.d. Fire, moasuro of indoinnltj', § 2Tr.(>. iiivostniciits of. S 427. report of invest lucnts. § 42. county fire insurance conipMuics. <>r^'anlzatlon and mauajrement of. p. 787, Stat. Life and health, valuation of policies, § 449. policy, what evidence to contain. § 4r.O. payment and cancellation of polic-y, § 4')!. capital Rtoclc of mutual insin-ance* coiniuinv. u. 785, § 8, Stat, when payable. § 2702. who insured by. § 2763. may be transferred, etc., to person having,' no interest, § 27G4. notice of transfer not necessary, § 2705. measure of indenmity, § 2700. return of guarantee notes, p. 780, § 0. Stat, does not pass to assignee for benetit of credit- ors, § 3470. valuation of policies, § 447. health, on assessment plan, act relating to, p. 777, Stat, annuity or endowment, on assessment plan, act relating to, p. 777, Stat, life, on assessment plan, act relating to, p. 777, Stat. Marine, insurer not liable for damages by perils [ of the sea, § 2197. I perils of the sea detiued, § 2199. I defined, § 2055. I insurable interest under, § 2059. owner of ship has insurable interest, § 2660. I insurable freightage, § 2001. ! expected freightage, when insurable, § 2(;02. I insurable interest under charter-party, § 2003, \ insurable interest in profits, § 2004. of charter of ship, § 2005. ship's manager cannot bind owners to, § 2389. what must be communicated. § 2009. what information material, § 2070. when persons insured presumed to have infor- mation, § 2071. effect of concealments upon, § 2072. representation willfully false. avi>ids. § 2070. eventually false, does not avoid, § 2077. warranty of seaworthiness imi)lied, § 2081. meaning of "seaworthy," §§ 2082, 2084. 948 INDEX. INSURANCE— Continued. warranty of setworthiness, when complied with, §2683. warranty of seawortliiness, effect of, § 2684. different degrees of seaworthiness, §§ 2685, 2686. warranty of neutrality, § 2688. voyage covered by, how determined, §§ 2692, 2693. deviation defined, § 2694. deviation, when proper, § 2695. deviation, when improper, § 2696. deviation, effect of, § 2697. loss under, total or partial, §§ 2701, 2702. actual or constructive loss, § 2703. actual total loss, § 2704. constructive total loss, § 2705. actual loss, when presumed, § 2706. on cargo, when voyage brol^en up, § 2707. covers expenses of reshipment, when, § 2708. abandonment unnecessary upon actual total loss, § 2709. free of average, effect of, § 2711. against total loss only, effect of, § 2712. abandonment, § 2716. insured may abandon, when, § 2717. thing insured belongs to insurer, when, §§ 2724, 2725. agents of insured are agents of insurer after abandonment, § 2726. abandonment not necessary, § 2727. abandonment, eff'ect of, § 2728. abandonment, irrevocable, § 2729. abandonment, effect of insurer's refusing, § 2731. insured not obliged to abandon, § 2732. valuation in policy, when conclusive, § 2736. valuation in policy, when applicable to partial loss, § 2737. insured may recover proportion of profits, when, § 2738. valuation in policy, apportioned, § 2739. valuation in policy, of profits, § 2740. measure of indemnity under open policy, § 2741. in case of damage, § 2742. where expenses incurred, § 2743. for general average, § 2744. where insured entitled to contribution, § 2745. i INDEX. Mt INSUKANCK— Continue.!. in case of p;irti;il loss of ship, etc.. 8 2740. investiuouts of. § 427. report of investments, § 427. Accident. act for incorporation of mutual insurance com- panies, p. 78r», Stat. an assessment plan, act relatiiif: to. p. 777, Stat. Title. accunuilating surplus fund, § 432. dividends, §§ 42(t. 4:jO. plant of company considered as part of assets. § 427. [NSIJRAXCE C0M:MISSI0NER, corporation act- ing as surety, duty of insurance commission- er, p. 720, § 3, Stat. duties as toward county insurance companies, p. 7S7, Stat. duty of, and rights as towards insurance com- panies on assessment plan, pp. 783, 784, §§ 10, 13, Stat. INSUKANCE COKPOKATIONS. See Corpora- tions. INTEMPERANCE, habitual, ground for divorce, § 92. as ground for divorce, to exist, how long, § 107. [NTENTION to dcseit, not always coexistent witli separation, § 100. of grantor in amljiguous grant, § 1009. of testator, §§ 1317, 1370. of testator, how ascertained, § 1318. overrules grammatical construction, § 1324. overrules technical meaning. § 1327. substantial compliance with, sutlicieut, § 1348. to malie ademption, must be in writing, § 1351. to extinguish old obligation, necessary in no- vation, § 1531. presumed, wlien, § 1533. to deceive, an essential element of fraud, § 1572. to govern interpretation of contract, § 103G. how ascertained, § 1037. when ascertained by the language, § 1038. when ascertained by the writing alone, S 1639. superior to terms of written contract, when, $ 1040. general terms restricted by nuiin, § 1048. Civ. Code— 80. 950 INDEX. INTENTION— Continued. particular clauses subordinate to general, § 1650. words inconsistent with, rejected, § 1653. presumption of, to destroy or cancel contract, § 1699. of trustor, necessary to creation of trust, § 2221. revision of contract so as to conform to, § 3399. how ascertained in revision, § 3401. fraudulent, question of fact, § 3443. INTEREST, in bequest of money, when accrues, § 1366. on legacies, § 1369. application of payments to, § 1479. estopped by offer of performance, § 1504. loan of monev presumed to be upon, § 1914. defined. § 1915. annual rate of, § 1916. legal rate of, §§ 1917, 1918. when becomes part of principal. § 1919, on judgment, § 1920. when trustee required to pay, §§ 2237, 2262. rate on bottomry, § 3022. rate on respondentia, § 3039. rate on protested foreign bill, § 3236. as damages, § 3287. as damages in actions other than contract, § 3288. as damages, limit of rate of, by contract, § 3289. acceptance of principal waives, § 3290. INTERESTS IN PROPERTY absolute, § 679. qualified, § 680. joint, § 683. partnership, § 684. in common, § 685. present, § 689. future, § 690. perpetual, § 691. limited, § 692. future vested, § 694. future contingent, § 695. future contingent, may be alternative, § 696. future contingent, not void because improb- able, § 697. future right of posthumous children, § 698. INDEX. m INTERESTS IN PROPEUTY-Contlnued. future, pass by tninsf«.'r. § (500. mere possibility of, not tninsfera])lo. 5 700. denominated estates, § 701. classification, § 702. future, none, unless specified. § 70.*^. when void for suspending' alienation, § 710. future, how defeated. §§ 730, 740. future, when not defeated, §§ ~\\, 742. time of creation of, § 749. chattel, § 7(>5. merger of, destroys servitude, § 811. what affected by transfer, § 1083. certain, in remainder, not affected by death of devisee, § 1184. in ship, how transferred, § 1135. in existing? trust, how transferred, § 113r>. trustee must ffive beneficiary notice of acquisi- tion of, § 2233. transfer of, when mortgage, § 2921. INTERPRETATION, representation in insurance, § 2573. agreement to indemnify, § 2778. of codes. See Codes. of contracts. See Contracts. of conveyances. See Conveyances. of Definitions. See Definitions. of guaranty. See Guaranty. of negotiable instrument. See Negotiable In- strument. of obligations. See Obligations. of suretyship. See Surety. of wills. See Wills. of words and phrases. See Words. of writinc:^. See Writings. INTERPRETER, otticer taking aclaiowledgment may employ, § 1201. INTESTACY, will interpreted to avoid, if possible, § 1320. disposition of property in case of, § 13S4. succession in case of. See Succession. INUNDATION, voluntary deposit in case of, 9 1815. dutv of depositary. § 181G. INVENTOR. See Product of Mind. INVENTORY of separate property of wife. § 165. effect of filing. § 100. specific legatee must m:il,'^ 12r>4, 1258. approval of bond of assignee for benefit of creditors, § 3407. may require assitrnee to account, when. 8 2409. may consent to apprenticeship of child, when, § 205. JUDGMENT, annulling? marriage. § 80. instruments evidencinir title declared l)v. ac- knowledired how, s§ ll.-)9, 1204. interest on, § 1020. attornment to stranger by virtue of. § 1948. on dissolution of partnersliip, § 2452. on indemnity, § 2778. by creditor against surety, effect of, § 2839. lien, § 3007. of rescission, § 3400. of cancellation, § 3412. priority, bona fide purchaser, judgment credit- or, § 1214. TUDICIAL SALE, implied warranty on. § 1777. pledgee may foreclose redemption bv, § 3(H1. rUSTICE OF THE PEACE may solemnize, mar- riage, § 70. consent to apprenticing child, § 205. order meeting of corporations, when, § .'ill. may talce acl^nowiedgment, § 11 SI. certificate of County Clerk thereupon, § 1194. ilNDKED. degree of. how established, § 1389. series of degrees of, § 1301. direct line of, § 1.302. collat(M-al line of. S 1303. of half-l)lood inlierit equally, § 1304. CNOWEEDOE. See Notice. of principal not necessary to create guaranty, S 2788. necessary to ratification. § 3314. iADING. See Rill of Lading. jAND defined, S 050. state, and appurtenance thereto, when granted to corporation, >;S 474-470. when such reverts to State, § 477. is real property, § 058. 954 INDEX. LAND— Continued, defined, § (359. limitation on leases of agricultural, § 717, burdens and servitudes. §§ 801, 802. risht of flooding, an easement, § 801. rigiits of owner, § 829. as^ real property. See Property, LAND AND BUILDING CORPORATION, See Corporations. Kinds of. LANDLORD AND TENANT. See Lease; Rent; Repair, tenant for life, heirs of, when take as purchas- ers, § 779. relation of, how terminated at will, § 789. tenant at will, how required to quit, § 789. when landlord may re-enter on property, § 790. tenant for life, rights of, § 818, tenant for years or at will, rights of, §§ 819, 820. tenant may remove what fixtures, § 1019, attornment by tenant, when unnecessary, 1111. landlord must repair, when, § 1941, tenant may repair at expense of landlord, when, § 1942. acceptance of rent by landlord renews lease, § 1945. continued possession, when renews lease, 1945. attornment by tenant, when void, § 1948. tenant must give notice to landlord of adverse proceeding, § 1948. when rent payable by tenant, § 1947. tenant of part room entitled to whole, § 1949. tenant must inform landlord of adverse pro- ceedings, § 1949, tenant released from rent by letting room in parts, § 1950. landlord must not let room in parts, § 1950. number of cubic feet required for each persoi p, 801, Stat, damages for willful holding over, §§ 3344, 3345. LAPSI] OF TIME, divorce denied on showing what, § 111. defined, § 125, presumptions arising- from may be rebutted, § 126. proposal to contract, when revoked by, § 1587. i INDEX. IIS LAPSE OF TIME-Continued. I».iiMii('iship dissolved hy. § 2450. ddos not «'xtiiimiisli li«'ii. S L".U1. extinpiiishes bottomry lien. § 3(>27. does not lej;alize nnisancr, § .'UIX). as limitation. See Limitations. LATKL'AL SUProKT. oasonient <.f. §§ SOL 832. LAWFUL, object of contract mnst be, § 1596. consideration must be, § 1007. contract interpreted so as to be, § ir>43. LAWS, effect of Code on, S 20. LEASE. See Landlord and Tenant; Kent, of airricultural lands, limitation. § 717. of town or city lots, limitation, § 71S. remedies of lessor airainst lessee and assigns for breach, § 822. remedies of lessee against assig:ns of lessor for breach, § 823. for life, rent, how recovered. § 824. tenant may remove what fixtures, § 1019. lessor upon hire must secure quiet possession, § 1927. remedies of lessor against lessee misusing property. § lOoO. lessor may terminate, when, § 1931. Of personal property, letter must deliver to hirer, § 1955. secure hirer in quiet enjoyment, § 1955. put in proper condition, § 1955. repair, when. § 1955. bear extraordinary expenses, when. § 195«>. liable to hirer for certain expenditures. § 1958. Of real property, lessor must put in proi)er con- dition, when, § 1941. lessor must repair, when, S 1941. lessor liable for certain expenditures, § 1942. term, when no limit fixed. § VM\i. of lodgings for indefinite term. § 1944. when presumed renewed. § 11M5. notice, when necessary to terminate, § 1940. rent for, when payable, § 1947. tenant must inform lessor of adverse proceed- ings. § 1949. in subdivisions of rooms, forbidden, § 1950. LEGACY. See Ademption; Wills. LEGISLATION, cannot be restrained by injunc- tion. § 3423. LEGITIMACY. Siv Illegitimacy. of children of annulled marriages, § 84. 956 INDEX. LEGITIMACY— Continued. of children of divorced marriages, §§ 144, 145. presumption of, § 193. of children born out of wedlock, § 194. who may dispute, § 195. LESSEE. See Lease. LESSOR. See Lease. LETTER OF CREDIT defined, § 2858. may be addressed to whom. § 2859. writer liable to whom, § 2860. special defined. § 2861. general defined, § 2862. general, any person may give credit under, § 2862. general, several persons may give credit under, § 2863. when deemed continuing guaranty, § 2864. writer liable without notice, when, § 2865. writer liable only for credit duly given, § 2866. credit given must agree with terms, § 2866. LETTERS, OAvnership of private, § 985. containing valuables, when common carrier not liable for loss of, § 2177. LIABILITIES of minors and persons non compos for wrongs, § 41. husband for support of wife, § 174. depositary, for damage from wrongful use of deposit, § 1835. depositary, for damage from negligence, § 1840. of innliepers, § 1859. innkeepers, when excused from, § 1865. finder of lost property, § 1865. factor to principal, § 2029. factor cannot relieve himself from, § 2030. of ship-master on abandonment of ship, § 2041. carrier may terminate his, how, § 2121. of inland carrier for loss, § 2194. marine carrier for loss, §§ 2197, 2198. trustee mingling trust funds, § 2236. trustee, for breach of trust, §§ 2237, 2238. partners, §§ 2442. 2443. one held out as partner, §§ 2444, 2445. indemnity against, § 2778. LIBEL, defamation by, § 44. defined, § 45. LICENSE, marriage; § 69. person solemnizing marriage must require pro- duction of, § 72. INDEX. , - LICENSE— Continued. marriaj^o, (jriirinal to Ik? iilt-d with ri*«'urd«'r. 5 74. copy jriven to parties, § 74. to take tolls on bridj^'es, wharf, ferry, S 52S. biiilclini? and loan associations, licenHes for, p. 733, § 17. Stat. LIEN of hotel, inn, board injr-house, and lodj,'lnff- house koepors, § 1S(>1. homestead liable for certain, § 1241. does not revoke prior will. § 1301. seaman not to lose his, by agreement, § 2()."»2. of carrier for freijrhta^^c, § 2144. carrier for fare. § 2190. for freip;htae:e, ship's manager cannot frlvt> up, § 2389. of partner upon partnership property, § 2405. of mining partner, § 2r>14. of mining partner, purchaser of interest takes subject to, §§ 2517, 2518. accessory to some obligation, § 2909. defined, '§ 2872. general, defined, § 2874. special, defined, § 2875. right of holder of in certain case. § 287G. contracts subject to law of, § 2877. how created, § 2881. by operation of law does not exist until per- formance due, § 2882. created upon future interest, § 2883. created as security for future obligation, { 2884. cannot transfer title, § 2888. redemption cannot be restrained, § 2889. do not imply personal obligation. § 2890. confined to original obligatitm. ;; 'JV.M. do not limit creditor's right to enforce obliga- tion, § 2892. holder not entitled to compensation for trouble, § 2893. priority of, according to creation, § 2897. priority of mortgage over other, § 2898. order of resort in case of, S 2899. redomi»tion, wlio has right of, § 2903. redemption, when inferior lienor has right of. § 2904. red<'mption, how made, § 2905. extinguished, how, § 2910. 958 INDEX. LIEN— Continued. by sale or conversion of subject, § 2910. by lapse of time, § 2911. not bv partial performance of obligation, § 2912^ by restoration of subject to owner. § 2913. of pledge dependent on possession, § 2988. holder may pledge subject to extent of lien, § 2990. of seller of real property, § 3046. of seller, bow waived, § 3047. against whom valid. § 3048. apportionment of. § 2912. of seller of personal property. § 3049. of buyer of real property, § 3050. for services on personal property, § 3051. of manufacturer, repairer, etc., of personal property. § 3052. of factor, § 3053. banker. § 3054. ship-master, § 3055. mates and seamen, § 3056. sheriffs and similar officers, § 3057. of ludcment, § 3058. of mechanic, § 30.59. upon ships for debts. § 3060. stoppage in transit as mode of enforcement, § 3076.^ damages for conversion of property subject to, § 3338. servants, liens of, where wages not paid by corporation, p. 750 et seq., Stat, loggers and laborers' liens, act giving, p. 797, Stat, act to secure wages of employees on thresh- ing machine, p. 800. Stat, mechanics and laborers hired by corporation, lien of, p. 750, Stat, animals, lien in favor of owner of animal for propagating purposes, p. 795. Stat, depositary for hire, lien of, § 1856. depositary's, sale of property to satisfy, § 1857. mechanics'. See Mechanics' Liens. LIENS, MECHANICS'. See Mechanics' Liens. LIFE INSURANCE. See Insurance. Life. LIMITATIONS for divorce. §§ 124, 127. of claim of aliens to inherited property, § 672. of leases of certain real property, §§ 717, 718. INDKX. Id LIMITATIONS-Continued. of successive estate for life, § 774. clear and distinc-r. in ^'rant. not contn>Ilo(;. words of in will, § 1335. directors, what actions against never baxred. § 309. conveyance by married women, action to re- cover property when barred, § ir»4. action by husband to recover property convey- ed by wife, limitation of. § 1«'>4. LINEAL WAiniANTIKS abolislied, § 111'). LIQUn)ATP:i> I)AMA(iES, wlien contract may fix. for breach, §§ 1(J70. 1G71. LIQTTIl>ATION. See Partnership. LITERARY CORPORATIONS. See Corporations. Kinds of. LITERARY PROPERTY. See Products of Mind. LIVESTOCK, act to prevent combinations to ob- struct sale of livestock, p. 705, Stat. LOAN. See Hirinj,'. ship-master may boiTow, on credit of owner, § 2374. ship's manager has no power to borrow on cargo or ship, § 2389. rights of lender under bottomry, §§ 3023, 3025 For exchanire defined. §§ 19o2. 1903. transfers title, § 1904. contract cannot be modified by lender, § 1905. provisions applicable to, § 190G. For use defined, § 1884. does not transfer title, § 1885. borrower of animals, obligations of, § 1887. borrower under, must use what care, § 1886. borrower must use what skill. § 1888. when to repair injuries. § 1889. how must use thing lent, § 1890. must not relend, § 1891. when to bear expense. § 1892. lender liable for defect, § 1893. may require return of thing lent, § 1894. when may terminate, § 1895. duties of,'on termination of, § 189G. Of money defined. § 1912. to be repaid in current money, § 1913. for reward. § 1914. reward for, called Interest. § 1915. annual rate of interest, § 191G. legal interest, §§ 1917, 1918. 960 INDEX. LOAN— Continued. interest, when becomes part of, § 1919. interest on judgment, § 1920. Under bottomry defined, § 3017. rate of interest, § 3022. Tights of lender, § 3023. when due, § 302G. LODGING-HOUSE KEEPERS, lien on baggage, § 1861. sale of unclaimed baggage by, § 1862. posting of statement of charges by, § 1863. number of cubic feet required for each person, p. 801, Stat. act concerning lodging-houses and sleeping apartments in cities, p. 801, Stat. misdemeanor, violation of cubic air law, p. 802, §2, Stat. See Lodgings. LODGINGS, for what term presumed hired, § 1944. rent, when payable, § 1947. LOSS, by collision of ships, how apportioned, § 1973. of thing deposited, obligation of depositary, § 1838. innl^eeper, when not liable for, § 1860. employer must indemnify employee for, caused bv negligence of former, § 1971. by jettison, how borne, §§ 2151, 2152. liability of inland carrier for, § 2194. of marine carrier for, § 2197, in partnership, share of partners in, § 2403. in partnership, agreement for division of, when implied, § 2404. partner to be indemnified for certain, § 2412. insurer liable, for what, § 2626. liable when incurred in rescue from peril, § 2627. insurer not liable for, when caused by peril not insured against, § 2628. not liable when caused by fraud of insured, § 2629. when caused by negligence, § 2629. notice of, must be given, § 2633. defects in notice, how waived, § 2635. delay in notice of. how waived, § 2636. In marine insurance, total or partial, § 2701. when partial, § 2702. total, may be actual or constructive, § 2703. INDEX. 9«1 LOSS— ContiniUMl. total actual, dotlnod, § liTot. total const met ivc, dcliiu'd. § liTn,".. actual, wheu pi-esumed, § 27tR). notice of abandonment not necessary on. I 2709. freo of aA-erajjo, defined, § 2711. insurance conlinoil to, does not cover construc- tive loss, § 2712. bow estimated, under open policj', § 2741. effect of total, on contract of bottomry, § 3025. LOST PKOI'EKTY. See Finder. LUGGAGE, lien of hotel, inn, boardin^^-house, and lod;iin;.;-liouse keepers on, § ISOl. sale of unclaimed, for storage, etc., § 1862. defined, § 2181. common carrier of persons must carry, when, § 21SU. common carrier of persons, how must carry, § 2181. liability of common carrier for, S 2182. eomm(m carrier must deliver, where, § 2183. common carrier has lieu up<»n. for fare, § 211H). LUNATICS. See Persons of Unsound Mind. MAIL, notice of dishonor by, § 3144. notice of dishonor sent by, when, § 3148. notice of dishonor excused when there is none, § 3155. act permitting mail carriers to ride free, p. S.'52, Stat. MAJOHITY, words giving joint authority gives such to, § 12. of members of mining partnership control busi- ness, § 2520. MAJORITY, AGE OF, what is, § 25. period of minority, how calculated, S 2c5. MALES under twentj'-two, minors. § 25. of eighteen and upwards caitable of marrj'ing. § 50. MALICE, when not inferred from publication, § 47. interest as damages in case of, § 3288. exemplary damages for, 8 3294. MANUFACTUlli:, agreement to. ntH.Hl not l)e in writing, § 1740. Implied warranty on sale of goods. §§ 1709. 1770. MAKliNE CAKKlKliS. See Carriage; Carrier, Common. Civ. Code- 81. 962 INDEX. MARINE INSURANCE. See Insurance. MARKS on goods sold, implied warranty of gen- uineness, § 1773. MARKS, TRADE. See Trademarks. MARRIAGE, defined, § 55. who capable of, § 56. proof of, how made, § 57. when voidable from incapacity, § 58. when voidable from fraud or force, § 58. incestuous, § 59. between whites and negroes, etc., void, § 60. subsequent, when void, § 61. promise, when neither party held by, § 62. contracted without state, § 63. consent alone will not constitute, § 55. declaration of, time of filing of, § 79y2. declaration of, failure to file penalty for, § 79%. must be solemnized, § 55. how solemnized, § 68. license, § 69. by whom solemnized, § 70. no particular form for solemnization, § 71. substantial requisites for solemnization, § 72. certificate, § 73. certificate to parties and county recorder, § 74. registry of, § 74. declaration, how made, § 76. declaration to be recorded, § 77. action to afiirm unsolemnized, § 78. action where party denies, § 78. duty of recorder as to registry, § 79. judicial determination of void, § 80. when annulled, § 82. action to annul, when and by whom commenc- ed, § 83. children of annulled, § 84. custody of children of annulled, § 85. effect of judgment of nullity, § 86. dissolution, § 90. husband not liable for debts of wife contracted before, § 170. legitimacy of issue after dissolution, § 194. releases from parental authority. § 204. of ward, supersedes guardian, § 254. restraint upon, when void, §§ 710, 1676. effect of, upon will made previous, §§ 1298- 1300. damages for breach of promise of, § 3319. INDEX. Ml MARRIAGE— Continued. advortisin.i; to annul is a misdemeanor. See Penal Code. § ir>'JVj. between monihcrs of peculiar rellpious denom- inations, how licensed and solemnized, { 79V^. divorced persons cannot marr}' within one year, § Gl. MARRIAGE SETTLEMENTS, how executod. § 178. aclvnowlodf]:ed and recorded. § 170. effect of recording' or nonrecordinp, § 180. minor may mal^e, § ISl. MARRIED WOMEX mny become corporators, of- ficers, and members of certain corporations, § 285. stoclv of, how transferred, § 32r). dividends payable to, § 325. may hold stoclc in homestead corporations. § 561. in savings and loan corporations. § 575. grant by. aclcnowledged liow, § KtO,"?. power of attorney aclcuowledjiod how, § 1001. effect of conveyance by. § 1187. may dispose of separate property by will. § 1273. acknowledgment by, §§ 1186 et sep. acknowledgment by. how executed. § 1003. power of attorney of. how executed, § 1004. MARSH AEING ASSETS, order of, §§ 2800. 3433. 'MASCULINE GENDER, includes feminine and I neuter, § 14. MASONIC FRATERNITY, may hold what real estate. § 596. MASTER AND SERVANT. defined, § 2000. employment. See Employment. services. See Services. wages. See Wages. mutual right of protection between. §§ 40, 50. abduction or enticement of servant forbidden, § 49. injury to servant forbidden, § 10. relation of master and servant. ;j 2«U. contract of apprenticeship, § 2(54. act of April 3. 1S7<;. as to apprenticeship. § 276. who may bind. !; 276. liabilities and (»bligations, § 276. relation in general, 55 2000. 964 INDEX. MASTER AND SERVANT— Continued. term of hiringr, §§ 2010, 2011. renewal of relation between, § 2012. time of service, § 2013. servant to deliver over to master without de- mand, § 201-1. master may discbarge servant, § 2015. relation, how terminated, § 2015. coercion of employee not to join union is a mis- demeanor. See Penal Code, § 679. act regulating hours of labor and employment of minors, p. 775. payment of wages of mechanics and laborers of corporation, p. 750 et seq. act to secure lien wages of employees on threshing machine, p. 800, stat. loggers and laborers' liens, act giving, p. 797, stat. lien of servant where wages not paid by cor- poration, p. 752, § 2, Statr liens of mechanics and laborers hired by cor- poration, p. 750, Stat. MASTER, SHIP'S. See Ships and Shipping. MATE, power of master of ship over, § 2037. defined, §2048. how engaged and discharged, § 2050. when wages of begin, § 2055. if vessel unseaworthy, may refuse to serve, § 2051. wron2:fully dischai-ged, may recover wages, § 2057. disabled on voyage, entitled to wages, § 2062. cannot ship goods on his own account, § 2064. MATERIALITY of concealment in insurance, § 2565. of representation In insurance, how determin- ed, §2581. MATERIALS, ownership of thing formed out of, of another, § 1028. of thing formed by uniting inseparable, § 1029. of personal property bv uniting, of several own- ers, § 1030. agreement to manufacture, where manufactur- er owns. § 1740. MATURITY, apparent, defined, § 3132. of bill payable at sight, § 3134. of promissory note payable at sight, § 3135. MAXIMS of jurisprudence, § 3509. MAYOR may solemnize marriage, § 70. INDEX. Mi MAYOR— Continued. may take inoof and ackno\vlod;;nient of Instru- ments, ^ 11SL». MEASUKE OF DAMAGES. See DnmnKes. MECHANICS' I>TKXS. where rek'ulatec Adopt l(»u. MISDEMKAXOU, supervisor violating statute a» to sale of franchise, p. 814, § 2 Stat. violation of riulit of tradoniarU, p. {viG, 5 2. Stat. MISKErKESKN'IWTION by depositary, when renders liini lialtle. § 18.'iS. trustee must not benefit by. § 222-S. partner must not i)enetit by, § 2U1. fraudulent, l)y debtor, as to value of pledge, § 2999. contract throug:h, not specilieally enforced, § 3391. MISTAKP: in will, how corrected, § 1340. consent to contract sriveu by, voidable, § 1506. of fact or law, S I'mG. of fact defined, § ir>77. of law defined, S ir)7.S. of foreign law. mistalce of fact, § 1579. in written contract disregarded, § 1<>40. right to rescind for, § 1090. thing ol)tained througli, restorcnl when. §9 1712, 1713. thing gained by, held in trust, § 2224. MIXTURE of trust fund by trustee, § 2230. of goods. See Confusion of (Joods. MOCK AUCTIONS. See Auctions. MONEY, performance in respect to payment, { 1478. offer to pay, how made, § 1500. excliange of, § 1S04. Implied "warranty on exchange, § 1S07. investment of trust, § 2201, negotiable instrument must be payable in, { 3088 MONTH defined, § 14. MONOPOLIES, act to prevent cond)inatlons to ob- struct sale of livestoclc, p. 705. MONI'MENTS. coterminous owners bound to maintain, S 841. MORAL OBLICATION, liow far good considera- tion, § 1000. 968 INDEX. MORALS, contract contrary to good, unlawful, § 1667. MORTGAGES, power to sell in, deemed part of security, § 858. to be recorded, § 1164. separate book for recording, § 1171. homestead liable for, § 1241. husband and wife must acknowledge, of home- stead, § 1242. on property not a revocation of will, § 1302. insurance l)y mortgagor for benefit of mortga- gee, § 2541. insurance, effect of mortgagors action, § 2542. lien discharaed by lapse of time, § 2911. defined, §2921. on what created, § 2921. how only created, renewed, or extended, § 2922. a special lien, § 2923. Avhat deemed, § 2924. absolute transfer shown to be, when, § 2925. on what lien, § 2926. does not entitle mortgagee to possession, § 2927. mortgagee may acquire possession by new agreement, § 2927. not a personal obligation, § 2928. person bound by, may not impair security, § 2929. title acquired subsequent to, inures to mort- gagee, § 2930. may be foreclosed, § 2931. power of sale given by, § 2932. power of attorney to execute, how made, § 2933. recording assignment, § 2934. recording assignment, when not notice, § 2935. assignment of debt secured by carrier" s secur- ity,^ §2936. how discharged, §§ 2938-2940. penaltj' for not acknowledging satisfaction, 2941. bottomry and respondentia not governed byi law of, § 2942. what subject to, § 2947. form of, for real property, § 2948. what must be recorded as, § 2949. conveyance with mortgage under cover, how defeated, §2950. of real property, how acknowledged, recorded, etc., §2952. INDRX. Ml MORTGA(iES-Continiie~). form, S l-*nr>(J. when void ajxainst creditors :in0. 24trr. 970 INDEX. NAME— Continued. n,- ^ v. «i^/i certificate of change of partnership to be filea and published, § 2469. county clerk to keep register of partnership, §2470. ^ V, ^ conveyances bv persons whose names changed, p. 765, § 1, Stat, record of conveyances by persons whose names changed, p. 766, § 3, Stat. NAVIGATION, domestic, § 962. foreign, § 962. rules of, § 970. collision from breach of rules, §§ 971, 972. NECESSARIES, minors and persons of unsound mind cannot disaffirm contract for, § 36. neglect of husband to provide, ground for di- vorce, § 105. furnished to wife at cost of husband, § 174. promise of adult child to pay for, furnished parent, valid, § 206. furnished to child, when parent liable, § 207. furnished to child, when parent not liable, §208. NEGLIGENCE. See Care; Contributory Negli- gence; Delay; Skill, willful, §105. willful, of husband, ground for divorce, § 92. willful, ground for annulling indentures of ap- prenticeship, § 276. must continue how long to constitute ground for divorce, § 107. liability for, § 1714. liability of depositary for. §§ 1838, 1840. liability of innkeeper for, § 1859. borrower to repair injuries caused by, §1889. hirer to repair injuries caused by, § 1929. employer must indemnify employee for loss caused by, § 1971. responsibility of employee for, § 1990. carrier cannot exonerate himself from antici- pated liability to be caused by future, § 2175. person claiming under ostensible authority must be free from, § 2.334. of asent. principal responsible, when, § 2338. shipmaster, when responsible for, of employees, § 2383. ^ .1 + shipmaster, when responsible for, of pilot, § 2384. INDEX. J71 NEGLirxENCE-Contliiuc.l. insurer, when liable for loss through, 8 2629 delay, liability of carrier f..r, 6 'JUmj NEGOTIABLE INSTRUMENT. See HJlls of Ei- cbanj^e; Checks; Holders; Iiulnr-.iu.nt ; No- tice; I'roinissory Notes, (letiiied, § 3087. to be for UDConditional payuK-m «.i iuou«'y. §3088. ^ payee must be ascertaiuable, when. § rjOSO. in alternative, § 301)0. date, § 3091. may contain pledge. § 3092. must not contain other contract, § 3n93. may bear any date, § 3094. different species, § 3095. interpretation of, as to time of payment, § 3099. as to place of payment, § 3100. when payable to order. § 3101. when issued unindorsed, § 3102. when payable to fictitious person, § 3103. when and for what presumed to be made, §3104. indorsement of, defined, § 3108. how to be made, § 3109. may be made on separate paper, when, § 3110. general, defined, § 3112. special, defined, §3113. jreneral, liow made special, § 3114. special, how may destroy negotiability, § 3115. implied warranty, § 311(5. before delivery to payee, effect. §3117. without recourse, effect. §§ 31 IS. 3119. gives privity to contract. § 3120. without consideration, when binding, § 3122. in due course, defined. § 3123. in due course, rights conferred by. § 3124. in due course, of instrument in blank. § 3125. presentment for payment, not necessary to charge principal, §3130. how made, § 3131. apparent maturity of, defined. §3132. surrender or proof of loss, may be required on payment, § 3137. dishonor defined. § 3141. notice of dishonor, by whom given. § 3142. form of dishonor. § 3143. notice of dishonor, how Si-rved. §3144. 972 INDEX. NEGOT ABLE IX^TKUMENT— Continned. how served after death of party notified, § 3145. given in ignorance of death, valid, § 3146. at what time given, § 3147. when to be mailed, § 3148. agent need only give principal, § 3149. time allowed party receiving to give, § 3150. tal^es effect in whose favor, § 3151. when excused, § 3155. presentment and notice of dishonor, when excused, §§ 3156, 3157. delay in, when excused, § 3158. how waived, § 3159. how extinguished, § 3164. implied warranty on sale of, § 1774. duties of agent employed to collect, § 2021. NEUTER GENDER, included in masculine, § 14. NEUTRAL PAPERS, implied warranty, in ma- rine insurance, § 2688. NEWSPAPERS, reports of public meetings are privileged, §§ 47, 48. NOMINAL DAMAGES, when allowed, § 3360. NONRESIDENT, stock of, how transferred, § 326. alien inheriting, when must make claim, § 672. NOTARIES PUBLIC, may take acknowledg- ment or proof in State, § llSl. acknowledgment or proof out of state, § 1182. acknowledgment or proof out of United States, § 1183. offer of performance made to, when, § 1488. negotiable instrument presented to, when, § 3131. bill of exchange payable at office of, when, § 3176. bill presented to, when, § 3186. bill protested by, when, § 3226. protest, how made, § 3227. making protest, may give notice, § 3231. NOTE, PROMISSORY. See Promissory Note. NOTICE, actual, defined, § 18. constructive, defined, § 18, 19. filing inventory of wife's property, as, § 166. to stockholders of meeting to continue corpo- rate existence, § 287. of meeting of corporation, § 302. iNDBx. »n NOTICE— Continued. of directors and stock holders ro bo jjlvpn by banks, S o-l. assessment of stock, S a^io, delinquent assessment, ^ :i,''.7-33J). to tenant at will to quit, 8 789. effect of such. § T1M>. of intention to re-enter, § TIM. not necessary l)elore action. § 71Ki. rifihts of purchaser for value without. «5.Kr>6. 8G9. record of conveyance, as, § 12(»7. record (»f instruiiient as, S 1213. instruments alfectini: realty HM-onled before 1897 as notice, § 1207. unrecorded instrument valid as between par- ties with, § 1217. instruments not avoided ajrainst purchaser with, §a22S. of appropriation of water, § 1415. 141G. of selection of one of several alternatives, i 1449. of selection of jdace of delivery. of adverse claim to deposit, to depositor, § 1825. depositary must give, of deposit to real owner, § 1826. of sale of deposit in danger of perishing, § is:i7. duty of gratuitous depositary ceases upon, § 1847. Innkeeper exempted bv giving certain. § \sca). of thing found, § 1SH5. hiring termiruited ])y what, § 19.'?4. tenant must give landlord, of a7. certain, terminates employment. s§ 19'.m;. i;>i>9. of arrival of freight, to consignee, when, § 2120. of storage of freight, to consignee, when, i 2121. bv trustee, of acquisition of adverse interests. '§ 2233. to i)rincipal or agent, when deemed to othe>r, § 2332. of renunciation of partnership, relieves pjirtner, § 2417. Civ. Codo-S2. .^4 INDEX. NOTICE— Continued. personal, of dissolution of partnership, when necessary, § 2453. by change of name sufficient, § 2454. of dissolution of special partnership, § 2509. of loss under insurance, § 2633. of loss under insurance, defects in, how waiv- ed, § 2635. delay in, how waived, § 2636. abandonment of ship to insurer by, § 2721. requisites of such, § 2722. of transfer of life insurance policy, not neces- sary, when, § 2765. of principal's default, guarantor not entitled to, § 2808. to writer of letter of credit, when necessary, § 2865. recording assignment of mortgage operates as, § 2935. to be given before sale of pledged property, § 3002. of sale of pledged property may be waived, § 3003. to carrier of depositary, necessary to stoppage in transit, § 3079. of dishonor, to be given to indorser, § 3116. of dislionor, by whom given, § 3142. form, § 3143. how served, § 3144. how served after death of indorser, etc., § 3145. given in ignorance of death, valid, § 3146. at what time given, § 3147. when to be mailed, § 3148. of dishonor by agent, need only be given to principal, 3149. of dishonor by party charged with, time al- lowed for, § 3150. of dishonor, inures to benefit of other parties, § 3151. of dishonor, when excused, §§ 3155, 3220. delay in, when excused, § 8158. may be waived, § 3159. acceptor for honor entitled to, § 3206. acceptance for honor does not excuse. § 3207. before abatement of nuisance, when nec- essary, § 3503. INDfcX. I7» NOVATION, (lofinofl. § IMO. how made, § IT).';!, a contract. § ir.:i2. rescission of. § 1533. NUISANCE. See Abatement, defined, § 3471). nothinc: antliorized bj' statute to be deemed, § 3482. lial)ility of successive owners, § 34S,';. aba<^enient does not prejudice claim for dam- ages, § 3484. rul)lic, defined. § 3480. not leiialized by lapse of time. S 34(K). remedies against. § .3491. indictment ai^ainst, how repulated. S .''>4I)2. when private person may sue. § 34*.>3. abated, by whom and how. §S 3404. 340r». ad allowijiic district attorney to altatr pulilic nuisance, p. 812. Private, defined, § 3481. remedies atrainst. «j3r.ol. abated by whom and iiow. >$ 3r>(>2. onlv upon notice, when. § 3r)()3. NULIJTY'OF MAHPvIA(;E. causes for, §82. action to obtain decree of. !5 S,3. effect of, on children. §§ 84, &>. effect of judcrment, § 80. NUNriTPATlVE WILL need not be in writlnj;. § 1270. how executed, § 1288. requisites to malve valid, § 1289. proof of. § 1290. probate. § 1291. OATH defined, § 14. person solemnizing marriaj;e may administer, § 72. person taking aclaiowledgment authorized to administer, ^ 1201. OBJECTIONS to oiler of performance, where made, § 1501. OBLKiATION, minor cannot disallirm certain, §37. general rules for interpret a ii<»n of, § 1423. defined. § 1427. how arise. § 1428. rules for interpretation, § 1429. kinds, § 3430. when joint, § 1431. ) W6 INDEX. OBLIGATION-Continued. contribution between joint parties. § 1432. when conditional. § 1434. conditional, species of, § 1436. conditional, what done before enforcing, § 1439. conditional, when performance excused, § 1440. when conditions void, § 1441. involving forfeiture, how interpreted, § 1442. subject of ownership, § 1655. how far good consideration, § 1606. implied warranty on sale of written execu- tory, § 1774. not implied from creation of lien, § 2891. specific performance, § 23S4. transfer of burden, § 1457. transfer of right, § 145S. alternative, who has right of selection, § 1448. right of selection, how lost, § 1449. alternative, indivisible, § 1450. alternative, effect of nullity of one or more, § 1451. Extinction of. by performance, § 1473. offer of performance, § 1485. of pecuniary obligation, § 1500. by prevention of performance, § 1511. when part performance operates as, § 1524. by accord. § 1521. satisfaction. § 1323. novation, § 1.5.30. release, § 1542. by rescission, § 1688. Imposed by law, to abstain from injury, § 1708. compensate for deceit. § 1709. restore thing wrongfully acauired, § 1712. restore thing upon demand. § 1713. restore thing without demand. § 1713. compensate for negligence. § 1714. OCCUPANCY, property acquired by, § 1000. j title by. § 1006. \ OCCUPATION. See Possession. ODD FELLOWS' ASSOCIATION may hold how much real estate, § 596. OFFER to contract, acceptance, how made, § 1582. to contract, what deemed, § 1584. must be absolute, § 1585. revolted, when, § 1586. bow revolted, § 1587. of guaranty, not binding, § 2795. INDEX. m OFFER OF PEKFORMANCE pnsROH title to porsonal proporty under exocntorv ai:reomont of salo. § 1141. extiniruislios <>l>li;:ntl(>n. 5 1 IS."), extinpuishos oldiirations for pavinpnt of mon- ey, when. § ir>(K). partial. S 14S(;. by -wlioin made, § 14S7. to whom made. § 14S8. whore made, S 14S<>. when made. § 14(;f>, 1401. with compensation for delay. § 1 lltli. to be in pood faith, ^Ui)?,. must be unconditional. § 1404. unconditional, except as to certain cases, I 1408. I^arty must be able to perform. § 140.'. receipt may be re<]uir('d upon, {j 1400. objections to mode, Avlien waived. § l."(H. thinp offered need not be i)rodu(ed. «5 14JH). tiling offered to be kept separate, «> 14t>7. thina: offered, vests in creditor. § l.'oi'. how to be Ivopt by debtor. § ir»(»:>,. effect of. on accessories of obli^'atiou. § l.'')(M. what excuses, § 1511, effect of refusal to accept performance made before, § 151.'). lion redeemed l)y. ij 20(i.'>. ability and willingness, when equivalent to. § 3130. of concurrent conditions, when uecessarj', i 1439. when excused, ^ 1440. bv anv person exonerates suretv. § 2S,'iO. OFFICES AND OFFICERS, othce. exercise of. not restrained by injunction. § 3423. record of conveyances by public ollicers. p. T«kJ. § 2, Stat. '•ori)oration actint: as suretv, p. 72r>. 0L0(;RAF1IIC will deliued. §1277. need not be in writini;. ^i rJ7«i. OPINION, information as to matters of, need not be given on insurance. § 2570. OPPRESSION, avoids contract, when. 5? 15r>7. 15G0. exemplary damai;es in case of. § 321)4. Interest as damages In case of, §3288. 978 INDEX. OPTION, of owner in confusion of goods, as to value or thing- itself, § 1032. selection between alternatives, §§ 1448-1450. as to place of offering- performance, § 1489. as to delivery, notice of. must be given, § 1756. how waived, § 1T5G. of beneficiaiy, in breach of trust by trustee, § 2237. of pavee, as to payment of negotiable instru- ment, §3090. ORAL STATEMENTS. See Writings. transfer, when may be oral, § 1052. nuncupative will, § 1276. what contracts may be by parol. § 1622. negotiations superseded by writing. § 1625. contract in writing, altered by, § 1098. representation in insurance. § 2571. declarations of auctioneer cannot modify writ- ten conditions of sale, § 1795. OHPHANS. See Corporations, kinds of— Religious, etc. in asylums, apprenticed, how, § 265. corporations for maintaining asylums, § 286. adoption of child from orphan asylum with- out consent, § 224. ostensible agency. See Agency. "OVERINSURANCE, return of premium on, how made, § 2620. effected by simultaneous policies, § 2621. by successive policies. § 2622. OWNERSHIP, defined, §654. Avhat subject of. § 655. wild animals, when subject of. § 656. all property has an owner, § 669. of what the State is owner, § 670. who may be owner, § 671. aliens inheriting, when must claim, § 672. modification of ,'^ § 678. absolute, § 679. qualified. § 680. several. § 681. joint, § 683. in partnership, § 684. in common, §§ 685, 6SG. conditions of, § 707. righis, § 782. 0"wner of thing, owns products, § 732. disposition of income during suspension of, S 733. INDKX. 979 ( tWNEKSIIIP- ContiniKvl. lerniiiiMt ion, § 7:;'.>. suspension of absolute, of term of years, | 770. of future estate may ust? casiMiiont, when, | o()»'H of child, § 211. abandonment by pnrent, § 'Jll. wapos of minor, § 212. ripht of p.iront as to rosldenoo of r-hlld. S 213. action for exclusive control of child. § 214. illegitimate child legitimated by marrlapc of parents. § 2ir». consent necessary to adoption of child. S 224. appointment of jruardian, §211. consent to apprenticeship of ehlld. § 2r»ri. right of posthumous child to take property, §698. birth of posthumous child defeats certain fu- ture interests, § T.'JD. child born after will takes by succession, ( 1306. grandchild of testator unprovided for by will, when succeeds, § 1307. share of child born after will, out of wlmt property taken, § 13U8. duress of child avoids contract of parent, when, §§ 1509, ITjIO. advancement to child durintr lifetime of tes- tator, unprovided for by will. § 13U9. adoption of children. See Adoption. adoption of child from asylum, without con- sent, § 224. PAROL. See Oral Statements. PARTIAL PKRFORMANCE. See Performance; Specific Performance. effect of, § 1477. offer of, void, § 14SG. when extinguishes obligation, S ir>24. makes oral contract of sale valid, when, S 1741. effect on guarantor of principal's accepting, § 2822. does not extinguish lien, § 2912. PARTIES. See Third Persons. consent necessary to marriage, § 5r». to marriage, who, § oO. to marriage, who ma^' not be, § 59. to contract, who, § 15r»G. to contract, when minors, etc., may be, § ir>57. to contract, must be capable of ideutlllcatlon, § 1558. 982 INDEX. PARTIES— Continued. to loan, may agree to any rate of interest, § 1918. to loan, may agree to compound interest, § 1919. PARTxXERSHIP. interest, what, § 684. defined, § 2395. partner may agree not to carry on same busi- ness in city or town after dissolution. § 1675. joint use of ship does not create, § 2396. formation, § 2397. property defined, § 2401. property, partners' interest in, § 2402. property applied to partnership debts, § 2405. lien of partner on property, § 2405. property, what presumed to be, § 2406. profits and losses, how divided, § 2403. when agreement for division of losses im- plied, § 2404. obligations of parties, § 2410. parties must act in good faith, § 2411. to account, § 2412. to serve without compensation, § 2413. renunciation of, § 2417. effect of renunciation, § 2418. certificate and publication of name of partner, § 2466. General, defined, § 2424. bound by decision of majority, § 2428. each partner agent, § 2429. authority of partners, § 2430. acts in bad faith do not bind, § 2431. profits of partners belong to, § 2435. partner not to engage in certain business, § 2436. partner may engage in what, § 2437. must account for certain profits, § 2438. liability to third persons, § 2442. liability for acts of copartner, § 2443. liability of one held out as, § 2444. who liable, § 2445. duration of. § 2449. total dissolution, § 2450. partial dissolution, § 2451. partner entitled to dissolution, § 2452. notice of termination, § 2453. notice of withdrawal, when suflicient to" dissolve, § 2454. notice of change of name, § 2454. INDEX. Ml PAKTNKllSHIP— Continu«'8. liquidation, who may act in, § 2459. who limy not ;ict in, § 24<;u. powers of i»Mrtn«'rs actinjr in, §§2401, 2402. use of hctitious name in, § 2400. certihcate and i)nl)li('atlou of names of part- ners, § 2400. name of foreijjcn, § 2407. name of foreij^n, how continni'd, § 2408. certificates of use of foreign name to l)e filed, §§ 2409-2471. chanjxe of interest of, does not avoid insurance, § 2557. effect of insurance l)y one of several. § 2590. MininjJT, how formed, SS 2511, 2512. ri;;hls of members, {^$ 2513-2515. how affected by purchase of interest, §§ 2510- 2518. majority of control, § 2520. Special, how formed, § 2477. of what to consist, § 2478. certiticate must be made, § 2479. certificate, aclcnowledged and recorded, § 2480. liability of partners in maliing false certifi- cate. § 2481. affidavit as to sums contributed, § 2480. requisites for forming, § 2482, certificate published, § 2483. affidavit of publication tiled, § 2484. renewal of, § 2485. who may transact business, § 2489. special partner may investigate and advise, § 2490. I may lend to and recover from, § 2491. I general parties may sue and be sued alone, I § 2492. special partner must not withdraw capital from, §§ 2493, 2495. may receive profits from, § 2494. transfer of, with intent to prefer creditors, void, § 2490. liability of general partner In, § 2500. of special partner, ?^ 2501. of special partner for unintentional act, 5 2502. who may (luestion existence of, S 25U3. how made general, S 2507. Special, how new special partners admitted, | 2508. 984 INDEX. PARTNERSHIP— Continued, dissolution, § 2509. name of special partner not used, when, § 2510. PASSENGERS, power of shipmaster over, § 2038. reasonable accommodation for, §§ 2103, 2180, 21S4. carrier must carry luggage, § 2180. liability for luggage, § 2182. carrier must deliver luggage, § 2183. lien on lusgage, § 2191. entitled to seat, § 2185. when fare may be demanded, § 2187. may be ejected for nonpayment of fare, §§ 487, 2188. additional fare, when, § 2189. if ejected, fare cannot be collected. § 2190. accepting ticket assents to obligation therein, § 2176. damages for refusing to receive, § 3315. PASTURE, right, a servitude, § 801. PATENTS, recorded without acknowledgment, § 1160. PAAYN. See Pledge. PAWNBROKERS. See Pledge. PAYMENT, deliied J 1478. current money, borrower must repay in, § 1913. application of general. § 1479. application by "debtor, § 1479. application by creditor, § 1479. application by law, §1479. obligation, how extinguished by offer of, § 1500. effect of offer of, on accessory of obligation, § 1504. of less than liquidated debt, § 1524. to agent, § 2335. when necessary to claim on indemnity, § 2778. of negotiable instrument, made to whom, § 3164. payee of negotiable instrument must be ascer- tainable, § 3089. payee's option as to class of, § 3090. of negotiable instrument payable to fictitious person, § 3103. indorser, when liable for, to payee, § 3117. for honor, made when, § 3203. for honor, how made, § 3205. must be accepted, § 3204. INDKX. »tt PAYMENT— Con tiniiod. liow iii.-Klc in case of fonM^Mi Mil, 5 32:i:j. time and place, §§ 3099, 3100. as pri-foiinanc-c. See Performance PENAL DAMACKS. for failnrt> t.. quit, after notice, >J 3.'',44. willfnl lioldinir over by tenant, if 334'). injuries to trees, etc., § 334>;. injuries inflicted in duel. §8 3347, ,3.34S. PENAL LAW. specilic relief not prante; 1515. of conditions of i)r(>posal. acceptance, § 1584. of contract, time of, § 1057. extension of time, how effected. § 1008. party offering performance to be able and will- ing, ij 1405. need not offer payment, when. §3130. surety may compel, by principal. § 2846. when pledgee must demand, ?? iiOOl. offer of. See OiTer of I'erformauce. PERILS. See Insurance. PERILS OF THE SEA, deffned, § 2190. PERISHABLE PROPERTY, sale of, for freight- age, when, § 2204. Civ. Code-83. 986 INDEX. PERPETUITIES. See Accommodations; Aliena- tion; Trusts. PERSON, defined, § 14. PERSONAL PROPERTY. See Property. PERSONAL RELATIONS. See Relatives. PERSONAL REPRESENTATIVES. See Execu- tors. of minor, when may disaffirm contract, § 35. property of intestate passes to, § 1384. to distribute property, how, § 1384. possession of legacy obtainable only from, § 1363. inventory by legatee for life, when delivered to, § 1365. of seamen, when entitled to wages, § 2062. by succession. See Succession, by will. See Wills. PERSONAL RIGHTS, defined and regulated, § 43. PERSONS, defined, § 14. third persons. See Third Persons. PERSONS OF UNSOUND MIND, term includes what, §14. custody, § 32. cannot disaffirm contract for necessaries, § 36. when cannot contract, § 38. when may contract, § 39. contracts subject to rescission, § 39. powers of. when incapacity adjudged, § 40. when civilly liable for wrongs, § 41. not liable in exemplary damages, § 41. guardianship, § 258. See Insanity. PETITION of judgment creditor to have home- stead appraised, § 1245. such to be verified, § 1246. filed with county clerk, § 1247. copy served on claimant, § 1248. PEW, as easement § 801. as servitude, § 802. PIONEER ASSOCIATION may hold how much real estate, § 596. PLACE of performance, § 1489. where goods sold, delivered, § 1755. where goods sold, delivered, option, § 1756. notice of option as to, § 1756. where thing borrowed, delivered, § 1896. where thing deposited, delivered, § 1824. PLACE— Continued. of pnyniciit iiood not bo stated In npcotlablo inslruinont. § 'Mm. at wliifh nc-nnnhle inslrunicnt prosontcd, || at whicli bill of t'xchnnfre i)ny:ibb', § 3212 at which protest made. 55 :il!L'S. of payment of nepdtiable instnmi.-nt * 'Mff.t 3100. PLEDGE. See Deposit; Depositary defined, § 298G. what deemed, § 2987. lien dependent on possession, § 29ss. covers inciease of property, § 2t)Mt. lienor may. § 2090. factor may not, § 23('.8. plediror must deliver possession to pledgee, | when valid auainst real owner, § 2991. lender delined. § 2992. holder defined, S 2993. lender may withdraw, when, § 2994. holder, obligations, § 2995. holder must .enforce all rights of i)ledj?ee, § 2996. pledgee liable as depositary for reward, § 29i»7. holder, gratuitous, liable as gratuitous depos- itary. § 2998. further, when required, § 2099. sale, when, § 3000. sale not until demand made, §3001. notice of time and place necessary. § 3(X)2. notice, when waived, § 3003. demand, waived, how, § 3004. auction. § 300,"). pledgor may compel sale. § 3007. evidences of debt under sale, § 3(MM>. pledgor entitled to surplus. S 343. hiring of real property renewed. § 1945. S90 INDEX. PRESUMPTION— Continued. certificate of sliip-master in favor of sailor true, § 2059. managiug owner of ship lias no compen- sation, § 2072. damages caused by conversion, § 3336. adequacy of damage as relief, § 3387. in revising contract, that parties intended a fair agreement, § 3400. certain transfers, without possession, fraudu- lent, §3440. of fraud, how repelled, § 3441. wife, presumption that property conveyed to, is separate property, § 1G4. community or separate property, presumption as to, § 164. married woman and others, presumption as to property convoyed to, § 164. PREVENTION OF PERFORMANCE, when ex- cuses performance, § 1511. rights of debtor in case of, §§ 1512, 1514. of reduction of contract to writing, § 1623. PREVENTIA^E RELIEF, only in special cases, §§ 3275, 3366. how given, § 3368. bv injunction. See Injunction. PRICE defined, § 1721. on failure to pay, seller may resell or rescind, § 1749. when paid, § 1784. when agent may r( of real property, priority of mortgage for, 2898. of real property, lien, § 3046. of personal property, lien, S 3049. PRINCIPAL, incident passes by transfer, §§ 1084, 3540. attorney in fact to subscribe name of, § 1095. factor must follow directions of, § 2027. consent necessary to release factor from lia- bility, §2030. in 2:uaranty. See Guaranty. PRINCIPAL AND AGENT. See Agency. PRINCIPAL AND SURETY. See Surety. PRINTING, included in word "writing," § 14. PRIORITY of record priority of right, § 1214. of liens according to date, § 28'97. mortgage for price of land has, § 2898. INDEX. :>»i PRIORITY-Continued. lien upon siii-k' fuiid over lii'ii upon Kevoral fluids. § 2.S;»0. of dilfeieut einployments, § 1J).S.S. of surety's property over principal's, 8 2S50. of bottomry liens. S 3029. l)on.'i fide i)iirclias('r or mortjj:a;rop and Judg- ment creditor, priority between, § 1214, PRIVILEGED COMMUNICATIONS enumerated, §47. reports of public meeting are privileged com- munications, §§ 47, 48. PROCEKI)IN(^S, cinmenred prioi- to takiii}; effect of Code not alTeotcd bv it. § C. PROCESS, defined. § 14. serrinir on foreicrn corporation. § 4():>. PRODUCTS OF LAND, owner entiiled to. § 732. tenant for years, or at will, entitled to. { 819. PRODUCT OF MIND, subject of ownership. « a^>5. to what decrree, § OSO. joint authorship, § 981. transfer of, § 982. effect of publication, § 983. rijrhts of subsequent authors, § 984. private writings. § 985. PROFIT AND LOSS, shares of partners in. § 2403. PROFITS. See Community I'roperty. by partner belongs to firm, when. § 243.". special partner may draw share of. S 2494. renunciation of future partnership exonerates partner, § 2417. insurable interest in, § 2(504. measure of indemnity for loss of, under Insur- ance, § 2738. loss of, under insurance, when presumed, § 2440. PROMISE OF MARRIAGE, when neither bound, § G2. damages for breach of, § 3319. PROMISE. See Contracts. of adult to pay necessaries furnished parent, § 200. false, when fraudulent, §§ 1.'72. 1710. representation in insurance as to future, § 2.>74. to answer for third person, § 2794. to accept bill of exchanj^e, when acceptance, $ 3197 PROMISSORY NOTE. See Negotiable Instru- ments: Protest. »2 INDEX. PROMISSORY NOTE— Continued. defined, § 3244. apparent maturity, § 3132. bill of exchange, when deemed, § 3245. bill of exchange, ^vhen converted into, § 3246. provisions applicable to, § 3247. delay in presentment, §3248. PROOF of consent to marriage, § 57. of illegitimacy, § 195. of nuncupative will, § 1289. of destruction or cancellation of will, § 1292. of ownership, finder may require, § 1866. of loss of freight, § 2202. of instruments for record. See Acknowledg- ments. of loss under insurance. See Insurance. PROPERTY. See Products of Mind. the word ''property" defined, § 14. of husband and wife, may be used to support children, § 143. of husband and wife, contracts concerning, § 158. of husband and wife, in joint tenancy, etc., § 161. of husband and wife, rights of, § 177. community, defined, § 164, 687. community, resort to for alimony, § 141. power of husband over, § 172. disposition of, on divorce, §§ 146-148. distribution on death of wife, § 1401. distribution on death of husband, § 1402. separate, may be used for support of child, § 143. of husband, when liable for alimony, § 141. separate, of husband, defined, § 163. of husband, when not liable for wife's debts, § 170. separate, of wife, defined, § 162. wife may dispose of without consent of hus- band, § 162. when liable for support of husband, § 176. not liable for husband's debts, § 171. of wife, husband cannot select homestead out of, § 1239. of child, parent no control over, § 202. when liable for parent's support, § 201. corporations may acquire, § 360. in general, § 654. INDKX. Ml PROPERTY— Continued. nature of, § (554. ownership in. 55 § 055, 078. either real or personal, § (i57. real, § 658. personal. § G03. always has owner, § iWJ. what, owned by state, 5 070. who may own. § 071. aliens inheriting, when must assert elniin. I 672. interest in, § 678. interests in. §§ 701. 702. inten^sts :il)S(.lute, § 679. qualified. *j 080. several, § 681. joint, § 083. partnership, § 084. in common. §§ 085, 686. present, § 089. future interests, § 090. perpetual interest, § 091. ri.shts of postliumous children in. § <^8. future interests pass by transfer. ):!§ 099, 700. future interests none, unless specified, § 703. future interests, how defeated, §§ 739, 740. when not defeated, §§ 741, 742. future interests, vested, § 094. future interests, contingent. § 095. future interests, continpjeut, may be alterna- tive, § 096. future interests, contincrent, not void because improbable, § 097. interests, perpetual, 8 091. interest, limited. )5 092. conditional ownership, § 707. restraints upon alienation, §§ 711, 715, 716. accumulations of income, § 722. income of, defined, S 748. what disposed of by will. §§ 1270, 1274. acquisition of, §§ lUUO, 11. Personal, defined, §§ 14, 063.^ mterests in. are estates. § 701. recordinir inventory of wife's, § ir.5. transferring contract for delivery of. § 1450. sale of. § 1739. seller's lien, § 3049. real propertj', when deemed, § 1338. B94 INDEX. PROPERTY— Continued. sale of unclaimed baggage for storage, charges, etc., §1862. Real, term includes what, § 14. what contracts respecting, minor cannot make, § 33. defined, § 658. interests, how denominated, § 701. application of interests in, to personal prop- erty, § 702. limitation on leases of certain, §§ 717, 718. general provisions concerning, § 755. estates in, § 761. estates of inheritance in, § 762. fee-simple estates in, § 762. fee-tail abolished, § 763. contingent remainders, § 764. freehold, § 765. chattels real, or estates for years, § 765. chattel interests, or estates at will, § 765. estates for life of third person, § 766. future estates, § 767. estates in reversion, § 768. estates in remainder, § 769. creation of remainders, future and contingent, §773. limitation of successive estates for life, § 774. remainders on estate, §§ 775, 776. estate for life, remainder of, § 777. burdens and servitudes, §§ 801, 802. rights of owners, § 829. rights, in respect to water, §§ 818, 830. how used by tenant for life, § 818. how used by tenant for years or at will, § § 819, 820. remedies of grantees for rents and reversions of. § 821. remedies of lessor against assigns of lessee, § 822. of lessee against assigns of lessor, § 823. on leases for life, for rent, § 824. rent, how recovered, §§ 824, 825. Injury to inheritance in, § 826. boundaries by water, § 830. boundaries by ways, § 831. lateral and subjacent support, § 832. trees, § 833. obligations of owners, § 840. PROPERTY— Coiitinucfl. teuaiit for life, duties, § S-10. coterminous ow iut, ri^lits, g 841. uses aud trusts in. § 847. wlien beneficiary has no interest in. § 8<>.'i. when beueticiary may dispose of his Interest, | 8(J3. when beneliciary cannot dispose of his interest, § 807. powers in relation to, § 870. ownership of instruments affectinp title, § l)l>4. tenant may remove what fixtures, § 1019. words of inheritance not necessary to pass fee, § 1072. fee-simple title when presumed to pass, 8 1105. subsequently acquired title passes by operation of law, § 1100. lien of seller, § 3040. lien of purchaser, § 3050, when deemed personal, after testator's death, § 1338. agreement for sale of, §§ 1731-1741. agreement for sale, what covenants required, 8 1733. form of such covenants, § 1734. PROPOSAL, to contract, acceptance, § 1582. to contract, acceptance must be absolute, § 1585. what is deemed acceptance, § 1584. qualifled acceptance, § 1585. revocation of, § 1580. revocation, how made, § 1587. PROTECTION, against restraint and injury, etc., § 43. to personal relations, S 40. what force used in seeking. § 50. PROTECTIVE ASSOCIATIONS, act for forma- tion of, § 2903. PROTESTS of bill of exchange. notice of dishonor of foreign bill only by notice of, § 3225. by whom, § 3226. how made. § 3227. where, § 3228. when, § 3229. how excused, § 3230. 996 INDEX. PROTESTS— Continued notice of, how given. 3231. effect of waiver, § 3232. PROVISIONS, implied warranty on sale of, § 1775. PROXY, voting by, at corporate meetings, § 312. • PUBLIC, grant interpreted against grantee, § 1069. contracts interpreted against private party, § 1654. deceit upon, § 1711. nuisance, § 3480. PUBLICATION, libel by unprivileged, § 45. privileged, defined, § 47. of assessment notice, § 336. delinquent assessments, § 339. produce of mind, effect of, § 983. notice of dissolution of partnership, § 2453. of names of partners, when. § 2466. change of name of partnership, § 2469. certificate of special partnership, § 2483. affidavit of, § 2484. notice of dissolution of special partnership, § 2509. PUBLIC ENEMY. See Enemy, Public. PUBLIC MEP^TINGS, reports of, are privileged communications. §§ 47, 48. PUFFING at auction a fraud, § 1797. PURCHASE, buyer at auction may rescind, when puffing practiced, § 1797. trustee cannot enforce claim adverse to trust, obtained by, § 2263. certificates of. See Certificates. at sales. See Sales. PURCHASE MONEY, priority of mortgage for, § 2898. lien for, § 3046. PURCHASER. See Sales. at auction sale of delinquent stock, § 342. when corporation may be, § 343. of franchise of corporations, powers and du- ties, §§ 389, 390. heirs of tenant for life, when take as, § 779. resulting trust not to prejudice, § 856. omission to declare trust in conveyance, § 869. grant, how far conclusive, § 1107. instruments void against subsequent, § 1227. instruments not void against subsequent, § 1228. INDEX. MT PURCHASER— Continued. grant, by person liavint: power of revocation opfiatcs as revocation, when. § 1229. riphts of. from devisee, § V.U'A. when sale of personal propertv void aealnst I 3440. when moitpraixe of personal property void against subsequent, § 3440, pledjiee cannot be, from pledgor, except bv di- rect dealing'. § 3(tl(>. of real propert.v, lien, § 3^)50, transfers void ajjrainst, § 3440. lieu of seller or buyer not valid ajxainst subse- quent, § 3048. QUALITY, imi)lied warranty of ^oods sold by sample, § 17G6. Implied warranty on executory sale. § 17G7. implied warranty by manufacturer, §§ 17G8- 1770. of jJToods inaccessible to buyer, § 1771. general warranty of, § 1773. domestic provisions, ^ 1770. dama.ires for l)reach of warranty of. § 3.'n3. QUANTITY, implied warranty as to, § 1773. QUESTIONS OF LAAV AND FACT, actual fraud. a (juestion of fact, § 1574. QUIET ENJOYMENT, covenant runs with land. § 14(i3. executory contract of sale biuds seller to insert covenant of, § 1733 implietl in liiriui:, SS 1U27, T,).").!. RAIL UO ADS, may borrow money and issue bonds, § 450. act to enable completion of roads, p. 819, Stat, foreign may operate in this State, p. 820, Stat, corporations to operate roads, when, p. 821, Stat, rates of fare on street, p. 829, Stat, time for commencement and completion of work, § 502. time for completion, exteusiou of, § 002. act limiting time within which exteusiou to railroad may be granted, p. 831, Stat, act authorizing railroad to u.se electricity or steam, p. 830, Stat, act providing for sale of franchises to highest bidder, p. 812-814, Siut. act requiring railroads lu i»rovide fende«^ and brakes, j). 812. Civ. Code— 84. INDEX. RAILROADS— Continued. act permitting mail carriers to ride free, p. 832, Stat. act allowing all railway corporations to do bus- iness on equal terms, p. 820, Stat, act limiting time within which franchise may be granted, p. 831, Stat. act validating grant of franchises to propel cars by electricity, p. 818, § 1, Stat, authorizing railroad to lease its road to an- other corporation, p. 820, § 2, Stat, act compelling railroads to operate roads, p. 821, Stat, railroad, when deemed in operation, p. 821, § 1, Stat, prevention of operation, p. 822, § 2, Stat, operation of roads over certain elevation, p. 821. Stat. See Corporations, Kinds of, sub. Railroads. RAILROAD COMMISSIONERS, act creating, p. 823, Stat, board, what constitutes, p. 823, § 1, Stat, sessions of board, p. 825, § 5, Stat, secretary and bailiff, powers of, p. 826, § 8, Stat, secretary and bailiff, salaries of, p. 829, § 15, Stat. expenses and salaries, p. 823, § 2, p. 829, § 15, Stat, location of office, p. 825, § 5,Stat. commissions, duty to examine as to whether income sufficient to operate, p. 822, § 3 Stat, act to organize and define powers of board, p. 823. Stat. extra counsel, power to hire, p. 824, § 4, Stat, rates, p. 827, § 11, Stat, power to carry acts into effect, p. 828, § 12, Stat, process and subpoenas, issuance of, p. 826, § 7, Stat, suit upon decision, when may be brought, p. 826, S 10. Stat, transportation companies, definition of, p. 828, § 14. Stat, companies, p. 828, § 14, Stat, complaints and decisions, p. 826, § 9, Stat, demand from transportation commissioner, p. 828, § 13, Stat, duty of Attorney General and District Attor- ney, p. 824, § 4. INDEX. yjt RAILROAD COMMISSIONEKS-Coiitiniied. free passes, p. 824, § 3. seal, p. 825, S «. Slat. RAILROAD CORl'ORATIOXS. See Corpora- tious. RANSOM of shii) and carj^'o, § 2,'}80. RATE or INTi:Kl':S'r, street railroad, § 501. supervisors to lix water, for irrij^'aiimi, § 1422. MDiiual. § 11)10. leji-al. §J^ 11)17, 1918. oo jiulKiiieuts, § 11)20. bottomry, § 3022. respondentia, § 3039. RATIFICATION of voidable contract, when void. §§ 1588, 2310. partial, when total, § 2311. M'heu void, S 2312. to prejudice of third person forbidden, § 2313. rescission, 5 2314. REAL ESTATE, defined. § 14. brokers' authority, § 1024. as property. See Property. REASON ceasincr. rule should cease. § 3510. being the same, rule the same. § 3511. RECEIPTS, party performinj; oblic:ation entitled to written, § 1499. in policy of insurance, § 2598. warehouse and wharfingers, act concerninc:. 9 1855. RECEIVER to enforce alimony, § 140. RECONVEYANCE, cancellation or redelivery of grant, no, § 1058. by grantee on nonperformance of conditions subsequent, § 1109. RECORDER, certificate of marriage filed witli. § 74. declaration of marriage filed with, § 77. inventory of wife's property tiled witli, § 105. to lieep books for reconliug semi-annual state- ments of banks, § 321. fees for recording bank statements, § 321. selection of vigbt of way by corporation trans- mitted to, § 371. city or county, may take acknowledgment of instruments* § 1181. instruments recorded in olHce of count}', § 1169. duties of county, § 1172. 1000 INDEX. RECORDER— Continued. certificate of formation of special partnership filed with, § 2480. notice of dissolution of special partnership filed with, § 2509. entry of satisfaction of mortgage made in pres- ence of, § 2940. personal mortgage recorded with what, § 2959. RECORDING, marriage certificate, § 74. marriage declaration, § 75. inventory of wife's separate property, § 165. effect of, § 166. marriage settlements, § 179. effect of, § 180. by-laws of corporation, § 304. of semi-annual statements of banks, § 321. of conveyances made by public officers, § 1095. what subject to, § 1158. judgments subject to without aclinowledging, §§ 1159. 1204. letters patent without aclfnowledgment, § 1160. prerequisites, § 1161. how effected, § 1162. transfers in trust for benefit of creditors, § 1164. in what office made, § 1169. when complete, § 1170. boolvs. § 1171. duties of officer, § 1172. transfers of ships. § 1173. legality of prior, not affected, § 1205. as evidence. § 1206. as notice. § 1207. where and to whom notice. § 1213. priority of. establishes priority of right, § 1214. of revocation of power, § 1216. effect of want of, § 1217. instruments affecting homesteads, § 1244. homestead declaration, §§ 1264, 1268. notice of appropriation of water, §§ 1415. certificate of formation of special partnership, § 2480. renewal of special partnership. § 2485. dissolution of special partnership, § 2509. power of attorney to execute mortgage, § 2933. assignment of mortgage, § 2934. effect. § 2935. satisfaction of mortgage, §§ 2940, 2941. INDEX. IMI RECOKIUXC- roiitlniK-d. niort^'n^cs in ^'oiieral. §§ 2t>r»2. 'JiM'^. mort^rnj^o of ixM-sonal property, 5 *21»r>9. inortiTM^'e of property of coininon oarrler. I 21»(n. single mortpnges of personal property, 9 29C2. iiiort^'.-i.ue or property in transit, § 21MMJ. bona ficii' punliaser of niortf^atree. rights as against judgment creditor, § T214. record of conveyances l)v jx'rsons wlioso names changed, p. 700, § 3, Stat, record of conveyances by public otlicers, p. 705, § 2. Stat, affidavits showing vrork or posting of notices on mining claims may be recorded. 8 1159. act validating record of notices of location of mining claims, § 1159. instruments affecling realty recorded before 1S!>T as notice. § 1207. certified copj' of recorded instruments may be recorded in other counties, § 12i:5. certilied copv. record of is notice. § 1213. KECOKDS of lianlc statements. § 321. liECKlMlNATlON. See Divorce. UEDKI.IN'EUY of grant does not retransfer. 9 1U58. REDEMl'TlOX of franchise by corporation, § 31»2. of person liaviug interest in property subject to lien, § 2903. of inferior lienor, § 2004. how made, § 2905. contract in restraint of. void, § 2880. i right of foreclosed, §§ 2t)31. 2007. RE-ENTKY right, when and how exercised, §§ 71H\ 791. right, transferable, § 104<). I REFEREE, testimony in divorce cases before. 9 [ 130. i REFORMATION OF CONTR.VCT. See Revision. RE(;iSTliA'l'ION. See Recording. REINSFKANCE defined, § 2(;}r,. what communicated on. § 2047. presumed against liability. S 2048. original insured no interest in, § 2>V10. RELATIONSHIP. See Kindred Relatives. husband and wife cannot impair legal. S 159. degrees, how computed, S§ 13S9-1393. 1002 INDEX. RELATIONSHIP— Continued. of half-blood, ricrlit to succeed, § 1394. succession throua-h illecritimate. when. 1388. RELATIVES, risrht of defense of, §§ 43, 50. may protect child from parental abuse, § 203. leiracies to. when chargeable with debts of tes- tator. § 1361. when illegitimate, taken by succession. § 1388. of half-blood succeed alike with whole blood, § 1394. alienage of, does not affect right of succession, § 1404. RELEASE of future interests, § 699. of debtor by substitution. § 1531. bv creditor, how made, § 1541. effect of general, § 1542. of joint debtors, § 1543. RELIEF. See Damages; Injunctions. in general, § 3274. compensatory, § 3274. specific, and preventive, limited to special cases, § 3369. from forfeiture, § 3369. RELIGIOUS, SOCIAL AND BENEVOLENT CORPORATIONS. See Corporations, Kinds of. marriage between persons of particular reli- gious belief, how solemnized, § 79iA REMAINDERS. See Reversion. defined, § 769. certain, valid, § 764. contingent, on prior remainder in fee, § 772. when created, § 773. upon successive estates for life, § 775. on term of years, § 776. for life upon term of years, § 777. upon contingency, § 778. what title vests under, § 779. construction, § 780. owner may sue for injury to inheritance, § 826. death of devisee before testator, § 1344. REMOVAL, of guardian, § 253. oflicer of corporation, § 310. thing bought, after delivery, § 1784. of trustee for holding adverse interests, § 2232. of principal in guaranty from State, § 2802. of mortgaged personal property, §§ 2965, 2966. INDEX. lOQi RENT. See Lnndlord and 'IVnnnt. rifrht of takinjr. as servitude. ? S()2. remedies for recovery of, § S'Jl. remedies by assi^rnees. §§ S2'J. S23. under lease for life, 8 824. dependent on life, when re('nv«'rable, 5 S2r). pavment to grrantor, when binding; on prantee* § 1111. covenant for payment runs with land, 9 1403. term of hirinfr indicated by, § l'.>44. acceptance, when renewal of lease, § 1945. when payable. § 1047. forfeited' bv lettinj; room in parts, § li)r>0. RENUNCIATION, of partnership exonerates part- ner, when. § 2417. of partnership, etTect, § 241S. RETAIK, owner of estate for life to, § 840. tenant for life to, fence. § 840. coterminous owners to, fence. § 841. owner for voya^re to, ship, § 0< '».'>. borrower, when to repair, § 1889. hirer to repair, when, § 1929. landlord, Avhen, § 1941. tenant, at expense of landlord, when, § 1942. letter of personal property, S 19r>.">. hirer of personal property, at expense of letter, S 19r)t). ship-master. § 2.'>7r). REPEAL, of former statutes, § 20. by implication, § 5. note. REPOliTS. official proceedinp:s, privileged, § 47. of railroad companies. § 491. appraisers of homestead, § 1252. REPRESENTATION, who succeed by ripht of, { 1403. authority of agent to make. § 2319. in insurance. See Insurance. RESCISSION, by minor. § 35. by person not entirely witliout understanding, § 39. of novation, § 1533. third person may enforce contract before. 8 1559. consent not free, subject to, § 15GG. extinguishes contract, § 1688. of contract, in wliat cases allowed. § 1089. not barred bv stipulation, § 1(J90. how effected* § 1«)91. of sale lor nonpayment of i)rice, § 1749. 1004 INDEX. RESCISSION— Continued. by buYor. if seller refuses inspection. § 1785. by buyer, on breach of Trarranty. § 1786. by buyer at auction, when, § 1797. of ratification. § 2314. of insurance for concealment, when, §§ 2562, 2569. 4f insurance for false representation, -^^^hen, § 2580. of insurance, when exercised, § 2583. for violation of warranty, etc., § 2608. for fraudulent valuation, § 2736. for alteration increasing risk, § 2753. of alteration of obligation does not restore guaranty, § 2821. stoppage in transit is not, § 3080. of contracts, when adjudged, § 3406. for mistake, § 3407. requirements on adjudging, § 3408. RESIDENCE, husband to select, §§ 103. 156. if husband selects unfit, wife not bound, § 104. guardian to select, § 248. requisites in regard to, in divorce. § 128. proof of actual, required in divorce, § 129. right of parent as regards, of child, § 213. RESIDUE, remainder on. § 775. of testator's estate, devise of, § 1332. of testator's estate, bequest of, § 1333. RESPONDENTIA. See Bottomry. defined, § 3036. owner may hypothecate by, § 3037. master may hypothecate, when, § 3038. law of bottomry applicable to, § 3039. obligation imposed upon shipowner by, § 3040. RESTORATION, necessary on rescission of con- tract, § 1691. of thing wrongfully obtained, §§ 1712, 1713. of deposit, terminates duties of depositary, § 1847. of thing found, § 1871. lien extinguished by, § 2913. RESTRAINT, right of protection from bodily, § 43. of marriage, when void, §§ 710, 1676. of alienation, when void, §§ 711, 716. of trade, contract when void, § 1673. of trade, on sale of goodwill, § 1674. of trade, on dissolution of partnership, § 1675. INDEX. 1MB RESTRAINT- Continued. of richt of redemption from lien, not allowed, § 28.S1). RKTROArTIVE, Codes not. §§ 8. C. RprrTTRX, of appraisers of homestead, i 1252. when excused. § 201S. of premium of insurance, wlien, 5§ 2617, 2G21. REVERSION. See Remainder. of land granted lo corporations, § 477. estate in. detine. what subject of. § 17.''.o. of real property. S§ 17;'.l. 17.^"}, 1731. 1711. of personal property. ? 17:i9. to be in writing or partially performed. 9 1711 not revocation of will, s l.'ioi. By auction dctiued. ?; 171)2. when complete. § 17:>:',. withdrawal of bid, § 1794. written conditions not to be modified, § 1795. when al)soIute, § 1790. by-bidding a fraud, § 1797. auctioneer's memorandum binding, § 1798. authority of aucli(meer from seller, S 23»32. Delivery on demand, § 17r»3, where made, S 1754. expense of transportation, § 17r»r), when made, § 1708. notice of election, § 17oi;. must follow directions of buyer, 5 1757. Delivery, of personal property, § 1759. change of possession not necessary on sale of wine in winery, «? 3440. transfer of wines in winery, how made, fi 3440. Warranty defined. § 1703. not implied, § 1704. of title to personal property, j 1705. on sale by sami)le. S 170(5. of merchandise not in existence, § 17(W. of manufacture against latent defects, 9 11G&. of manufacture for particular i)urpose8, § 1770. when thing cannot be examined by buyer, ( 1771. of trademarks, 9 1772. other UKirlcs, § 1773. on sale of written instrument, § 1774. of provisions for domestic use, 9 1775. on sale of goodwill, ^ 1770. 1008 INDEX. SALE— Continued. on .indicial sale. § 1777, effect of general warranty. § 1778. SALVAGE, in case of capture, deduction from sea- men's wasres for, § 2060. who entitled to, §§ 2079. 2725. SAMPLE, sales by. § 1766. SATISFACTION. See Accord. of .iud.2:ment a,uaii)?t corporations. § 388. of .nid'sment against homestead. 1241. of legacies andi gifts, § 1367. what operates as. §§ 1523. 1524. of recorded mortgage, §§ 2938. 2941. penalty for refusing, of mortgage. § 2941. SAVINGS AND LOAN CORPORATIONS. See Corporations, Kinds of. SCHOOLS. See Colleges. SEA, perils of, defined, § 2199. carrier not liable for damages caused by perils of, § 2197. SEAL of otficer tailing proof or aclvnowledgment, § 1193. corporate, or official, how affixed, § 1628. private, abolished, § 1629. SEAMEN. See Ships and Shipping. may malice nuncupative will, when, § 1289. power of shipmaster over, § 2037. defined, § 2049. how engaged, § 2050. how discharged, § 2050. cannot be compelled to ship on unseaworthy vessel, § 2051. wages of, not lost by agreement, § 2051. restrictions on contracts with, § 2053. wages, when depend on freightage, § 2054. wages, when begin, § 2055. where voyage brol^en up, § 2056. when wrongfully discharged, 2057. wages, when do not depend on freightage, § 2058. not lost by wreck, § 2058. when prevented from rendering service, § 2060. must be provided for in sickness, § 2061. when personal representatives take, § 2062. when forfeited, § 2063. 2063. INDEX. 1001 SEAMEN— Continued. must not sliip j,'ooonml to Mill whon ronsonable doubt ns to, S 2051. dofnuMl, § 2<;,S2. Inipliod warranty of. In Insurnnoo. 5 2081, at what time must exist, under Insurnnoo, | 2()S.'?. what required to constitute. 5 2»vh.k def:rees of, durinsx voyape, § 2(^s.''.. for purpose of insuring earpo, § 2«VS7. SECRETARY OF STATE, procoodlnps fur contin- uance of corporations. § 287. prerequisites before issuing certificate of Incor- poration. § 29r», when must issue certificate of incorporation. | 290. SECURITY for alimony. § 140. power to sell in mortgage deemed part of. { 858. contracts of, when called ball. § 278o. held bv creditor or cosurety, surety entitled to beneiit of, § 2849. held by surety, creditor entitled to benefit of, S 2854. by way of lieu (see also Lien). § 2872. for what lieu may be, § 2884. for obligation, does not prevent direct enforce- ment, § 2890. of mortgac;ee not impaired by person bound. § 2929. by way of pledge. See Pledge. for third p«'rson. pledge as. § 2992. by way of bottomry (see also Bottomry), S 3017. by way of respondentia (see al.so Rcspomlenlla) § 3030. indorser having, not entitled to notice of dis- honor, § 3157. by assignee, for benefit of criMlltors. § 34r,T. SEDUCTION, protection from, § 49. damages for, § 3339. SELECTION. See Option. SELF-DEFENSE, right of, § 43. SELLER. See Sales. SEPARATION, by con.seut, not desertion. $ 90. and intent to desert, not always coexist, fi 100. consent to, revocable, S lol. Civ. Code— J>o. 1010 INDEX. SEPARATION-Continued. husband and wife may agree to immediate, § 159. mutual consent sufficient consideration, § 160. custody of child in case of, § 214. SERVANT. See Master and Servant. SERVICES. See Wages. of legitimate unmarried minor, father entitled to, § 197. of illegitimate unmarried minor, mother en- titled to, § 200. parent may relinquish, of child, § 211. when apprentice may recover for, § 276. of depositary. § 1839. employee in gratuitous duties, § 1975. gratuitous, when relinquished, § 1976. vrithout employment, §§ 2028, 2079. of carrier, other than carriage, § 2203. contract for, cannot be specifically enforced, § 3390 SERVIENT TENEMENT. See Easements and Servitudes. SERVITUDES. See Easements and Servitudes. SEVERAL defined, § 14. ownership, § 681. SHERIFFS. See Assignments for the Benefit of Creditors, § 3449. SHIPS AND SHIPPING. See Average; Bottom- ry; Navigation; Carriage; Common Carri- ers; Respondentia; Seamen; Seaworthiness; Wreclis. seamen. See Seamen. defined, § 960. appurtenances of, § 961. foreign, § 962. domestic, § 963. controversy between part owners, § 964. who responsible for repair and supplies, § 965. registry, enrollment, and license, § 966. collision from breach of rules, § 971. losses caused by collision, how apportioned, § 973. transfer of interest in, in writing, § 1135. recording transfer, where provided for, § 1173. charter-party defined and regulated, § 1959. when not seaworthy, seamen need not sail, § 2051. INDEX. lOU SHIPS AND SIIIPPTNn-rontlnuo.]. Bhip-mnstor niny procure ropnlrs nml Hiinpllea. § 2'Mr,. ship-mnstor niny hypotJiornto. whon. 5 2377. sliip-iiinstcr niny sell. wJicn, 5 2a7M. abandonment terminates mnster'H power. I 2?>81. ship-master personally lial>le for what con- tracts. § 2.^S2. liability of master for ncRllpenee of r)crRon« employed. § 2:\f<\. oblisration of ship-owner to owner of cargo. ( 2885. part owner not partner, § 2.'^fM{. seaworthiness defined. § 2«;S2. laws of mortffajxe do not apply to, 5 2078. hvpothecati(tn under bottomry, § 3017. lien on, § 3069. mates. See Mntes. act to prfttect buoys and beueons. See Penal Code, Appendix, title Buoys and Bea cons. Carpro. sacrifice for safety of. § 2148. sacrifice borne ratably, § 2151. .lettison. See Jettison, how valued on fjeneral a vera pre. 5 2ir)3. ship-mnster apent for owners, § 237r». obligation of owner to owner of, § 238r). ship's manager not power to purchnse. 8 2380. seaworthiness for purpose of insurinp. 15 2»'kS7. insurance on, when voyajxe broken up. 5 2707. ship-master may sell, when, § 2370. earpo, ship-master maj' hypothecate, when, SS 2377, 3038. hypothecation under respondentia, §8 3o3«V 3038. owner entitled to repayment from ship-owner under respondentia, § 3040. insurance. See Insurance, freight. See Freight and Freightage. Manager, defined, § 2070. duties, § 2071. not entitled to compensation, when. § 2o72. powers, § 2388. limitation of powers, § 2380. Master, may be charterer, $ 1951). how appointed, § 2034. must be on board, when. § 2035. 1012 INDEX. SHIPS AND SHIPPING— Continued. Master— take pilot, when, § 2036. power over seamen, § 2037. power over passengers, § 2038. power to impress private stores, § 2039. must not abandon stiip without advice, § 2040. duties on abandoning ship, § 2041. when not trade on own account, § 2042. care and diligence, § 2043. authority to malve jettison, § 2150. general agent for owner, § 2373. may borrow on credit of owner, § 2374. on behalf of owner of cargo, § 2375. power to make contracts, § 2376. to hypothecate, § 2377. to sell ship, § 2378. to sell cargo, § 2379. authority to ransom ship, § 2380. power terminates on abandonment of ship, § 2381. personal liability for contract, § 2382. liability for acts of persons employed, § 2383* responsibility for negligence of pilot, § 2384. when may hypothecate ship under bottomry, §§ 3019, 3020. when may hypothecate freightage under bot- tomry, § 3021. lien of, § 3055. mates, See Mates. Owners, controversy between, how determined, § 962. master appointed by, § 2035. when manager, called what, § 2070. when manager, not entitled to compensation, § 2072. ship-master general agent for, § 2373. ship-master may borrow on credit of, § 2374. contracts of ship-master bind, § 2376. ship-master may sell ship without instructions, when, § 2378. contract to ransom ship, by ship-master, binds, § 2380. power to bind, ceases, when, § 2381. responsible for negligence of ship, when, § 2384. obligation of, to owner of cargo, § 2385. ship's manager cannot bind, to insurance, § 2389. has insurable interest, § 2659. SHIPS AND SIIIPPING-Continued. Owners— value of insurable Interest, 8 20C1. iusuiablo interest in expected frel;;ht, S '2*'AY2. may liypotliccate ship upon hottduiry. jS 3ols. when n'i)My owner of cargo under rrsiMJuden- tla, § 3040. Voyage, owner of ship for, liable for repairs and supplies, § 905. power of sliip-inaster during. 5§ 2037. 2040. insured, how deti'rniined. § LMJ'.)2. deviation, defined. § 2G03. when proper, § 209r>. when improper, § 2<;9(;. effect of on insurance, § 2097. SIGNATUKE defined. § 14. of otficer taking acknowledgment, § 1193. in indorsement of negotiable Instrument, 81 3109. 3110. SINOI^LAK NUMBEK, includes plural. § 14. SKILL. See Care. injury arising from want of ordinary, § 1714. borrower for use must exercise what. § 1KH8. employee must use reasonable. § 1983. employee must use all he possesses, § 1984. voluntary depositary must use reasonable. § 2078. carrier of persons for reward mijst use rea.son- able, § 2100. SLANDER, defamation effected by, § 44. defined, § 46. SOCIETIES. See Corporations. SOLDIER mav make nuncupative will, § 1289. SOLEMNIZATION OF MAKKIAGE. See Mar- riage. SPECIFIC PERFORMANCE of obligations com- pelled when. § 3384. not unless mutual, 3380. presumption in favor of, as to real property, § 3387. presumption against, as to personal property, 8 3388. enforced in favor of party not hound, when. § 3388. enforced, notwithstanding pciialfv In rontract, § 3389. not enforced for pers<»nal service, § ,3390. contract to accept arl)itration. § :va\Xk act which party cannot perform. § 3,390. 1014 INDEX. SPECIFIC PERFORMANCE— Continued. agreement to procure act of third person, § 3390. indefinite contract, § 3390. party not having adequate consideration, § 3391. party as to whom contract is not fair, § 3391. party not freely consenting, § 3391. party in default, § 3392. of agreement to buy, not enforced when title doubtful, § 3394. persons claiming under party bound to per- form, § 3395. may be enforced after reyision, § 3402. SPECIFIC RELIEF, only in special cases, § 3366. how giyen, § 3367. not giyen to enforce penalties, § 3369. SPEED, carrier must travel at what rate, § 2104. SPORTS, rights of conducting lawful, on land as easement, § 801. STATEMENT OF BANKS, what to be published and recorded, § 321. STATUTE OF FRAUDS. See Oral Statements, what contracts to be in writing, § 1624. sales of personalty, § 1739. sale of realty, § 1741. agent's authority, when to be in writing, § 2309. STATUTE OF LIMITATIONS. See Limitations. STATUTES in derogation of common law, how construed, § 4. effect of Code on, §§ 5, 20. minor cannot disaffirm contract made by au- thority of special, § 37. insane person cannot mal^e contract without express authority of, § 38. rights granted by, subject of ownership, § 655. STOCK, amount subscribed before incorporating, § 293. oath of officer to subscription of, § 295. holder of, defined, § 298. entitled to how many votes, § 301. majority necessary to adoption of by-laws, § 301. majority necessary to election, § 307. two-thirds necessary to amend by-laws, § 304. two-thirds necessary to removal of officers, § 310. INDEX. lau TOCK— Coiitlnuofl. majority fonstltutos quonini, i 312. dividends not made from capitMl. § 3()9. doht.s ii(»t l)oy<>nd siibscrlbod. j :{(»9. capital not increased or dinilnlsljed. exceot 11 3()<), 350. ^^ " on dissolution, divided. § 3()1). booiv and notice of, by banks. § 321. certificates of, how issued, § 32;i. transfer of, § ,^,24. transfer of. held by married women, 9 32.'5. transfer of, of nonresidents. § 320. bypotliecated, liow voted, § 322. sale of delinquent, § 341. jurisdiction over, § 340, may buy its own, when, § 343. disposition of, where corporation purcha.ser. 8 344. action for recovery of, sold for delinS. when carrier may place freight on. $ 2121. STRANG EK, attornment to, void, § 11H8. as tliird person. See Third Person. STREAMS. See Water. ownership of land newly formed by. § lol4. land newly formed in navi;,'able. § lolG. land newly formed in unnavl;,'able, § 1017. islands formed by division of. S lol8. STREAMS. NAVIGABLE. See Water. STREET RAILROAD CORi'O RATIONS. See Corporations. SUBAGENT. See A^'ency. not responsilde to jjrlncipal, S -'^^i-- when aj^eut responsible for, i 2350. when not, § 2351. 1016 INDEX. SUBPOENA, acknowledgment by officer, § 1201. SUBROGATION, right of inferior lienor to, § 2204.' SUBSEQUENTLY ACQUIRED TITLE passes by operation of law, § 1106. passes by will, § 1312. SUBSTITUTES, responsibility of employee for, § 1989. SUCCESSION, rights of children of annulled mar- riage, § 84. alien, taking by, when to assert claim, § 672. posthumous children, § 698. future interest, § 699. property acquired by, § 1000. words of, unnecessary to pass fee, § 1072. liability of persons acquiring property by, § 1115. child of testator born after will takes by, § 1300. child of testator unprovided for by will takes by, when, § 1307. property of intestate, how disposed of, § 1358. defined, § 1383. real and personal property pass by, § 1384. to whom property passes by, § 1384. distribution of property received by, § 1386. illegitimate child takes what, § 1387. mother of illegitimate child to take by, § 1388. computation of degrees in determining, §§ 1389, 1393. exclusion from by advancement. § 1395. relatives of half-blood, when take, § 1394. husband takes common property on death of wife, § 1401. husband and wife, divorced and in fault, not to take by, § 1401. wife takes one-half common property on death of husband, § 1402. by representation, § 1403, aliens may take by, § 1404. when state takes by, §§ 1405, 1406. when State takes by, subject to charges, § 1407. persons taking by, liable for debts of decedent, § 1408. change of interest by, does not affect insur- ance, § 1556. See Successors. SUCCESSORS, of decedent may dispute legiti- macy of issue, § 195. liable for obligations of decedent, § 1403. INDEX. 1017 SUCCESSOILS-Contliiuod. in r'(iii;il de-ne take equally, § 1394. of eini)loyer, wheu must c'uinpen.sate omnloyee. § 1998. duty of trustee as to appointment of, I 22;',. provision for support of orphan out of property of intestate parent. § 205. consent to apprenticeship, when, § 2i\r). may bind out apprentices, § 2(W. act authorizin;; sui)crvisors to tix rates of wa- ter sold for irrigation, p. 848, § 2, Stat. act limiting time within which extension to railroad may be granted, p. s:n, Stat. misdemeanor, supervisor violating statute as to sale of franchise, p. S14, § 2. Stat, act limiting time within which franchi.se may be granted, p. 831, Stat. franchise lor underground or elevated railroad, petition for, § 492. maj' grant franchise for underground or ele- vated railroad, § 492. SUPrOKT TO LAND, right of more than natunU as easement, § 801. right to lateral and subjacent, § 832. SURETY. See Security. contribution. Sec Contribution. incorporations for giving bonds, p. 725, Stat. release of principal, releases, §§ 1543. 2819. indemnitor, how far entitled to rights of. { 2779. when person Indemnifying is, § 2779. de lined, {5 2.s:n. apparent principal may show he i.s, § 2832. liability cannot exceed terms of contract, } 2836. not altered by Judgment against principal, § 28;iS. discharged bv offer to perform prin.'lital obli- gation, § 2839. 1018 INDEX. SUPERVISORS— Continued. interpretation of contract. § 2837. how exonerated, §§ 2838, 2845. rights of, same as guarantor's, § 2844. right to compel creditors to sue, § 2845. to compel principal to perform, § 2846. to compel principal to repay him, § 2847. to compel cosureties to contribute, § 2848. to enforce remedies of creditor against princi- pal § 2848. to benefit of securities held by creditor or co- surety, § 2849. to have principal's property taken first, § 2850. rights of creditor against, § 2855. indorser for accommodation has rights of, § 3122. corporation acting as surety, p. 725, Stat. corporation, acting as surety, assets of, p. 726. Stat. corporation acting as, duty of insurance com- missioner, p. 726, Stat. SURPLUS, conveyance in excess, by owner of life estate, § 1108. of advancement by testator during lifetime, effect of, § 1396. execution by agent in excess of authority, when binds, § 2333. SURPRISE, contract made by, not specifically enforced, § 3390. SURVEYOR-GENERAL, selection of right of way by corporations sent to, § 478. SUSPENSION, of power of alienation, §§ 715, 733. of ownership of term of years, § 770. of power to alienate subject of trust, § 771. of policy of insurance by transfer of thing, § 2593. TAIL, estates in, abolished, § 763. to what extent valid, § 764. TAXES, owner of life estate must pay, § 840. covenant for payment of, runs with land, § 1463. building and loan associations, tax on, § 648^^. act imposing tax on issue of certificates of stock corporations, p. 833, Stat. TECHNICAL WORDS. See Definitions; Words. how construed, §§ 13, 1327, 1328. TELEGRAPH, obligations of carrier by, § 2161. carrier by, must use utmost care, § 2162. iNi)i:x. loit TELEGKAPII— rontlniie^l. coiiiiuoii (Mrricr by. iiiiist trnnj^mlt In whnt or- der, §§ 2207, 22().S. penalty for refusing or postponlnR nicKHnKe, § 22()1». TELE(iKAril COMPANIES. S.e Corporations, act jrrantinp: franchise for teloj;raph company between Asia and America, p. 83"), StaL act providing' for sale of fruuchi8c to bigheHt bidder, p. 814. Stat. TELEPHONE COMPANIES, act providing for sale of franchise to hlKbest bidder, p. 814, Stat. TENANT. See Landlord and Tenant. TENANTS IN COMMON, husband and wife may hold as, § lOL when several devisees taice as, S 13r><>. TENDER. See Offer of Performance. TESTAMENT. See Wills. TESTATOR. See Wills. TESTIMONY. See Evidence. THING IN ACTION. See Chose in Action. THIRD PERSON, when may recover for necessa- ries furnished wife, S 174. necessaries furnished child. § 2i)8. when not recover for necessaries furnished cliild, § 20D. contracts tor benetit of, § 1559. estates for life of, § 7G0, remainder on estates for life of, §§ 77r>, 77<>. effect of transfer where consideration paid by, §853. delivery in escrow made to, § 1057. grant may inure to benetit of, S 1085. may enforce contract made for (»\vn benellt, § 1551). when voluntary trustee, § 2243. when must see to application of trust pn»periy. § 2244. trusts lor benefit of, § 2250. ratilication to prejudice (tf. not allowed, § 231 ;. responsibility of a^'ent to. § 'Si4'^. agent must deliver to, when, $ 2.'J44. liability of partner to, § 2442. who liable as partner to, § 2444. information of belief of, material in marine In- surance, § 2G70. Ifl20 INDEX. THIRD PERSON— Continued. contract to procure act by, not specifically en- forceable, § 3390. not to be preiudiced by revision of contract, when. §3399. act of, not to prejudice, § 3520. who must suffer by act of, § 3543. THREATS, desertion caused by, as ground of divorce, § 98. will procured by. void, § 1272. consent to contract obtained through, voidable, §§ 1567, 1689. menace, defined, § 1570. by trustee to obtain advantage, § 2228. by partner to obtain advantage, § 2411. TICKET. See Fare. failure of corporation to provide, § 490. TIDE-WATER, owner of land bounded by, § 830. TIME, computing, §§ 10, 14. of period of minority, § 26. of commencing action for nullity of marriage, §83. as to certain causes for divorce, § 107. of commencing actions for divorce, § 127. of creation of interest, what, § 749. in which alien nonresident must assert claim to take by succession, § 672. of delivery of grant, presumption, § 1055. words in will, relate to what, § 1336. at which obligation performed, §§ 1490, 1491. not of essence, unless expressly declared, § 1492. of performance of contract, § 1657. of performance, may be extended, § 1698. entire, of servant, belongs to master, § 2013. to which representation in insurance refers, § 2577. does not confirm void act, § 3539. lapse of. See Lapse of Time. TITLE, inventory of wife's property as notice of, §166. ownership of instruments, § 994. of property, how acquired, §§ 1000, 1001. by occupancy, §§ 1006, 1007. by accession, § 1013. by transfer, § 1039. redelivery of grant does not revest, § 1058. INDEX. ion TITLE— Continiiod. fee-simple, when presumed to pasH. i IKVl. 8ubse(iu«'iitly iicquired, passes by operntion of law, § IHMJ. subseciuently acqulrer». to highway, passes by transfi-r. § lllli. to personal properly, what pa.s«es l)y iransfer. § 1140. under executory agreement of sale. S 1141. when l)uyer acquires better, than settler has, § 114L». instruments evidencinp. declared by JudKment. how proved for record. §§ ll."»l>. li;t>4. by homestead declaration. § 1U«m. to homestead, how recorded, § 12G8. by devise, § 1311. by specilic devise or lepacy, § 13(>3. to thin;; in performance, when passes to cre. loan for exchange transfers, § VJi)4. to freight, by transfer of bill of hidinR. S§ 2127. 2128. implied warranty of, to personal property, au- thority to agent to sell. § 2323. lien does not transfer, § 28SS. property. tSee I'roperty. ownership. See Ownership. TITLE DEEDS, ownership of. § 994. TITLE INSURANCE COMPANIES, plant consid- ered as part of assets of, § 427. dividends by. {j§ 429. 430. accumulating surplus fund. § 4;?2. TOLLS, by wagonroad corporations. §514. penalty for taking unlawful. § r»14. not on public highways, § ."•l."». rates to be posted over gate. § ."iKI. toll gatherer may detain person until paid, §517. not to detain person unnecessarily. S 518. penalty for avoiding. § 519. right o*f taking as servilmle. § S02. TORTS. See Wrongs. TRADE, contracts in restraint of, S§ 1073-1075. C«v. Code— S6. 1022 INDEX. TRADEMARKS, subjects of ownership, § 655. what may be appropriated as, § 991. implied warranty, § 1772. act to protect owners of bottles, boxes, siphons, and kegs used in sale of waters, beverages, or beer, p. 835, Stat. misdemeanor, use of bottles, kegs, boxes, or si- phons protected by trademark, p. 836, § 2, Stat. TRANSFER, of services and custody of child, § 197. of stock, how, § 324. of stock of married woman, § 325. of stock of nonresident, § 326. future interests may pass by, § 699. effect of, where consideration paid by third person, § 853. omitting to declare trust in, § 809. thing in action subject to, § 954. product of mind subject to, § 982. goodwill subject to, § 993. property acquired by, § 1000. defined, § 1039. voluntary, defined, § 1040. voluntary, consideration not necessary to val- idity, § 1040. what subject of, § 1044. mere possibility not subject of, § 1045. right of re-entry subject of, § 1046. adverse claim, § 1047. agreement not to trausfer insured interest, when void, § 2599. of life insurance policy, § 2564. of thing insured does not transfer policy, § 2593. of interest in partnersliip property dissolves partnership. § 2450. Mode of, oral, § 1052. by grant, § 1053. Effect of, to vest title, § 1083. upon incidents of thing transferred, § 1084. in favor of stranger, § 1085. of personal property by sale, § 1140. Unlawful and fraudulent, instruments void against purchasers. § 1227. not void against purchasers having notice, un- less fraud mutual, § 1228. INDIOX. 1023 TKANSFi:il-r(,ntiinH'(l. Unlawful and fiMn, 12,'{0. other provisions eoncerning, { 1231, presumed, wlien, {^ 3440. when creditor can avoid. §3441. question of fraud in respect to, .-i Question of fact, § 3442. Of oblifcations, burden, when trnnsf.Table, I 14r)7. rip:ht arlsini: out of oblliratloii. <;7. stoppage in, § 307(>. stoppa;;e in. how effected. § 3071). stoppairo in, effect of, {| 3oso. TREASl KK-THOVE. See IMnder. TREES, ownership of. i5§ S.33. 8,34. daniaircs for injuries to. § 334«;. TRESI'ASS, personal property acquired by 5 1031. on personal property, liability of irespas.'^ei. $ 1030. TRIFLES, law vlisreijards, § 3533. TRIiSTS. suspension of power to alienate sub.;«>.t of. § 771. limite3. residtin.ix. not to prejudice purchasers. {} STtC*. express, for what purposes .-illowed, § Sr)7. when liable to creditors, § STiJ). vest Mhole estate in trustees. § Sr»3. author of, may prescribe to whom estate shall belong:, § 8(>4. estate of jirantee subject to, § 8*)^*. estate left in author of, § 8«)r». powers over, of beneficiaries, § 8<»7. omittinir to declare In conveyance, 5 S(;0. expressed in creation of estate, acts In breach of. void, § 879. when to cease. § 871. 1024 INDEX. TRUSTS— Continued. interest in, how transferred, § 1135. transfer of property in, Avlien recorded, § 1164. voluntary, defined. § 2216. involuntary, § 2217. parties to, § 2218. for what object created. § 2220. ■who deemed trustee under, § 2219. voluntary, how created as to trustor, § 2221. how created as to trustee, § 2222. obligations of trustee. See Trustees. obligations of trustor. See Trustees. obligations of third persons in respect to, § 2243. third person, when bound to see to application of property in, § 2244. defined, § 2250. how created, § 2251. when court is trustor under, § 2252. how declared, §§ 2253, 2254. termination, § 2279. not revocable, § 2280. trustee may be discharged, when, § 2282. effect of extinction of, § 2282. declaration of must be obeyed, § 2558. accumulations. See Accumulations, act to prevent combinations to obstruct sale of live stock, p. 705, Stat. TRUSTEES, on dissolution of corporations, § 400. whole estate vests in, when, § 863. when grant to, deemed absolute, § 869. acts of, in breach of expressed trust, void, § 870. estate, when ceases, § 871. defined, § 2218. what constitutes, § 2219. beneficiary must be indicated by trust, § 2221. trust, how created as to, § 2222. involuntary, wrongful holder, § 2223. involuntary, fraudulent gainer, § 2224. must act in best faith, § 2228. not to use property for own funds, § 2229. not to take part in transactions adverse to ben- eficiary, § 2230. not to take advantage of beneficiary, § 2231. not to assume trust adverse to interest of bene- ficiary, § 2232. INDEX. lOJB LUUSTEES-Continued. must disclose adverse interest to beneflclnrv I 2233. when ;,'iiilty of fraud. § 2234. presumption airuinst, § 22.'..'.. mixing,' funds with own, liow far liable, §2230. measure of liability for breach of trust. S8 2237, 2238. responsible for acts of co-trustee, wlnai, I 2239. when third person becomes involuntary. I 2243. payment to, when sufficient, § 2244. when person acquiring trust property becomes, § 22no. assent of trustor and. creMtes trust, § 22')!. appointed by court, court is trustor, § 2252. deolar:iti(.n of trust by trustor. §?5 22r»3, 22r»4. must fultili purpose of trust. § 22.'>s. use ordinary care and dilij?ence, § 22r»0. procure trustworthy successor on dischar^'e. § 22()0. invest trust fund, how. § 22G1. pay interest, when. § 2202. cannot enforce claim aj^ainst trust fund. $ 22G3. powers of, as agent, § 22G7. cannot act without assent of co-trustee. § 22G8. discretionary power of, liow controlled. § 2209. involuntary rights of. § 227;"). trustor cannot revolve trust, when, § 2280. office, how vacated, S 2281. how discharged, § 2282. how removable. § 2283. appointment of mnv, § 2287. survivorship. § 2288. superior court, wlien to appoint, § 2289. declaration of trust must be obeyed, § 2558. insurance bv. how made. § 2589. UNCERTAINTY in will, how Interpreted, { 1272. UNDUE INFLUENCE, will procured by, void, ( 1272. contract obtained tlirough. voldaltle, §§ ir.r»7. 1689. defined, § 1575. thing gained by, lield in trust, §^2224^ presumption of. against trust«M>, S 2235. 1026 INDEX. UNFAIR ADVANTAGE. See Advantage. UNINCORPORATED ASSOCIATIONS. See Building and Loan Associations; Co-opera- tive Associations, co-operative business corporations. See Cor- porations, kinds of, 742, Stat, chambers of commerce, formation of, p. 737, Stat. mechanics' institutes, formation of, p. 737. Stat, boards of trade, formation of, p. 737, Stat. consolidation of college, effect of, § 653. consolidation of colleges, manner of, § 652. colleges authorized to consolidate, § 652. consolidation of colleges, transfer of property, § 653. cumulative voting in, § 307. UNLAWFUL condition in instrument renders void, § 709. condition in obligation void, § 1442. alternative in contract, effect of, § 1451. contracts. See Contracts, transfers. See Ti:ausfers. UNRECORDED INSTRUMENTS. See Bona Fide Purchasers, valid as between parties and those having no- tice. § 1217. UNSOUND MIND. See Persons of Unsound Mind. USAGE, meaning of words fixed by, § 1644. employee to conform to, § 1982. agent to conform to. § 2349. USES AND TRUSTS. See Charitable Uses; Trusts. USURY. See Interest. VALUABLE CONSIDERATION. See Considera- tion. VENDOR, lien of, § 3046. vendee's lien, § 3050. when deemed to waive lien, § 3047. extent of lien, § 3048. vendor and vendee. See Conveyances; Pur- chaser. VESTED INTEREST, future, defined, § 694. VIGILANT, preference given to the, § 3527. VOLUNTARY TRANSFER, defined, § 1040. consideration not necessary, § 1040. VOYAGE. See Shipping. INDEX. ion WAGES. See Services. of minor, when paid to him. 5 212. of seamen, when Ite^In, § 20.'»r). depend on frck'htaKe, when, « 2(K'V4. depend on freicrhtaire. when not. $ 20r»S. when voyage broken np. 5 2(r»<;. when wr<»n^'fully discharircd. etc.. $ 2057. when prevented from rendering service, 8 2060. when personal representatives entltle5. on sale by sample, S 1700. where buyer relies on seller^s judgment, S 1707. by manufacturer. §8 1708-1770. 1028 INDEX. ' ' ' ~ . WARRANTY— Continued. of goods inaccessible to buyer, § 1771. of trademarlvs, § 1772. of otlier marks on goods, § 1773. on sale of written instrument, § 1774. of provisions for domestic use, § 1775. on sale of good-will, § 1776. on judicial sale, § 1777. effect of general, § 1778. right of buyer to inspect goods on sale with, § 1785. right of buyer to rescind in case of breach of, § 1786. implied, of money exchanged, § 1807. implied, in authority to agent to sell personal property, § 2323. implied in negotiable instrument, § 3116. of authority, § 2342. agent has power to give, § 2323. auctioneer has power to give, § 2362. damages on, of quality of personal property, § 3313. damages on, of title to personal property, § 3312. damages on, of agent's authority, § 3318. in insurance. See Insurance. WATER. See Streams. easement in, where furnished to land sold by company, § 552. right of talving, as easement, § 801. right of receiving and discharging on land, as easement. § 801. boundaries by, § 830. rights to, how acquired, § 1410. rights of appropriation, § 1410. appropriation must be for use, § 1411. point of diversion may be changed, § 1412. changing the use. § 1412. may be turned into natural channels, § 1413. priority of right to, § 1414. notice of appropriation, § 1415. diligence in appropriation, § 1416. "completion" defined, § 1417. doctrine of relation applied to, § 1418. forfeiture of right to, § 1419. rights of present claimant, § 1420. act regulating sale of water, p. 843, Stat. INDEX. 102» WATER— Coiitinueil. api)roi)riatioii, iij;bts to water inav be acquired by, § 1410. such to be for useful luirpose, § 1411. priority of such ostabiislies priority of right, | 1414. notice of such, § 141.'. (lilii^euce in prosecuting sucli, S 14 ir,. appropriation of, act securing rights of way for conveyance of water to place of use, p. 843, Stat. appropriation, time for construction of works w^here dam recommended by debris commis- sioners, § 141 13. appropriation of, act reguhitlug sale, rental, and control of approi)riated water, p. 843, Stat. appropriation of, act providing for rights of way for conveyance of. p. 8K5. Stat. WATER COMMISSIONERS, act to promote irri- gation, § 1421i. WATER COMPANIES. See Corporations, kinds of. appropriation of, act regulating sale, rental, and distribution of, p. 843, Stat. act regulating sale, rental, and distribution of water other than in cities, p. 843, Stat. irrigation corporation, duty to supplv water, S 324. duty to supply water, § 324. irrigation corporation, transfer of shares of stock in, § 324. irrigation corporation, transfer of stock In, § 324. irrigation corporation, stock located on land, transfer of, § 324. irrigation corporation, stock in. as appurte- nance to laud, § 324. corporation to si-ll water for irrigation, sale to stockholders only, § .".24. act regulating sale, rental, and control of ap- propriated water, p. 843, Stat. act securing rights of way for conveyance of water to places of use. p. 843. Stat. act providing for si'curing rights of way for convevance of watiT. p. 843. Stat. WAY, RIGHT OF. See Right of Way. 1030 INDEX. WAYS, boundaries hr. § 831. WEAKNESS OF MIND. See Persons of Un- sound Mind, unfair advantase of, renders contract voidable, §§ 1507. 1575."^ WHARF CORPORATTOXS. See " Coi^orations, Kinds of. WHARFINGER, act concerning receipts of, p. 839, Stat. WIDOW, legacy to. when chargeable with debts of testator, § 1361. Interest on legacy to. when accrues, § 1369. inheritance by. See Succession. WIFE. See Husband and Wife. WILLS. succession. See Succession. include codicils. § 14. when person of unsound mind may make, § 40. devisee may dispute legitimacy of issue, § 196. future interest may pass by, § 699, power may be acquired by. § 1000. liability of persons acquiring property by. § 1115. effect of, upon gift, § 1152, gift when treated as legacy, § 1153. who may make, § 1270. procured by fraud, mav be denied probate, § 1272. revocation, obtained by fraud, void, § 1272. married woman may dispose of separate prop- erty by, § 1273. what may pass by, § 1274. who take by, § 1275. written, how executed. § 1276. olographic will defined. § 1277. witness must state residence, § 1278. conjoint or mutual, § 1279. competency of subscribing witness, § 1280. conditional. § 12S1. gift, to subscribing witness, when void, § 1282. creditors competent witnesses. § 1282. witness, when entitled to devise by, § 1283. void, unless duly executed, § 1285. effect of codicil, § 1287. power to devise, how executed by terms of, § 1330. INDEX. 1(B1 WILLS-Contimio.l. execution .-ind eonstnutlon of prior, not aflfect ed by Code, § 1375 inortjiJiK'e oii property devised, how KutlHned. | 2040. child born after, takes share. 5 1300. slijire of child boru after, out of what takeu. I 1308. children unprovided for, when sue«-e«'d. 5 1307. death of devisee before testator, §5 I3(>9, 1.343, 1344. when devise does not lapse by death of dev- isee. § 1310. devises, how con.^truen. conditional will, when may be denied probate. § 1281. conditional devise or bequest, what, § 134r). conditional devise or bequest, when vests. § 1347. advancements. See Advancements. Interpretation and effect of, accordinp: to inten- tion. § 1317. confined to written will, § 1318. rules to be observed, § 1310. several, to be taken touether. § 1320. all parts considered in, § 1321. latter part controls, § 1321. distinct clause not affected by Indistinct. 8 1322. an»bij;ulty or doubt, § 1323. words takeu in ordinary sense, § 1324. words to receive operative construction, i 1325. to avoid intestacy, § 1320. technical words, § 1327. technical words not necessary, § 1328. word 'heirs" not nece.^^sary to pass fee. S 1320. power to devise, huw executed by terms of will, § 1330. of devise of real property. 5 1331. of devise of residue <»f real property. § 1332. of devise, as referrim: to time of death, S 1333. 1032 INDEX. WILLS— Continued. "heirs," "relatives," "issue," "descendants," etc., § 1334. of "vvords of donation and limitation, § 1335. to wliat time words refer, § 1336. of devise or bequest to a class. § 1337. of directions or conversion, § 1338 -u'hen posthumous child takes under will, § 1339. mistakes and omissions, § 1340. when devises and bequests vest, § 1341. when cannot be divested, § 1342. death of devisee or legatee, § 1343. interests in remainder not affected, § 1344. conditional devises and bequests. § 1345. condition precedent, what, §1346. conditions precedent, when performed, § 1348. effect of condition precedent, § 1347. conditions subsequent, what, § 1349. devisees, etc., take as tenants in common, § 1349. advancements when ademptions, § 1351. by what law governed. § 1376. executor according to the tenor, § 1371. power to appoint is invalid, § 1372. executor not to act till qualified, § 1373. execution and construction of prior wills, § 1875. the law of what place applies, § 1376. Legacies and general provisions, nature and der- ivation of legacies, § 1357. specific, § 1357. demonstrative, § 1357. annuity, § 1357. residuary, § 1357. general, § 1357. ademptions, § 1351. order of sale in case of intestate, § 1358. property, how applied to payment of, § 1359. how applied to payment of debts, § 1360. to kindred, chargeable only after others, § 1361. abatement of. § 1362. specific, title pas.^es by, 1363. possession of. how obtained, §§ 1363, 1365. heirs' conveyance good when, § 1364. for life, inventory to be given. § 1365. of income, when accrues, § 1366. INDEX. 1033 WILLS-Coiitiiuicd. inny hv satislifd. § i;;<;7. when due. § l.'{«i-S. intorcsl on, § l.'{r»9. (•(Histruction of these rules, § l.'lTn. liability of letratees for testator's d«'l)is. js i:;77. Itt'Vncation of, procured by fraud niav In* anmdl- ed, § 1271». of mutual will may be effected. 8 1279. void, unless duly executed, § 1285. of written will. § 121>2. evidence. § 129:?. of duplieate, § 129.'. by subse(iuent will, § 129«». subseciuent, does not revive prior will, § 1297. by marriage and birtli of issue. § 129S. by marriaixe of testator. § 1299. by marriaue of testatrix, S 1:;(m). coutraet to sell property disposed of, § l.*?!)!. incumbranee on property disposed of, § l.'i02. conveyanee, when not, § K5o;j. conveyance, when, § l.'i04. revokes codicils, § 1805. after-born child, uni)rovided for. to succeed. § children unprovided for, § 1307. share of unprovided for child, § l.'io.S, advancement to child, § i:i09. death of devisee. beiuL: a relative, durim: testa- tor's lifetime, § lolO. provisions relating to, apply to what wills, § 1374. Nuncupative, need not be in writing', § 127»*,. how executed, S 12SS. requisites to make valid, § 12S9. proof, § 1290. probate, § 1291. WITNESSES. See Evidence. testimony, when privileged. § -17. recordin;}; of instruments provtnl by other than sul>scribin;r. § 119S, oath of credible, ueci'ssary in takln;: acknowl- edirmeuts, § US."). siibscribin;r, to be personally known to otlicer takin;: proof. § 11 9«;. to prove, what. ^ 1 197. handwriting of, when proved. S 119S. Civ. Code— 87. 1034 INDEX. WITNESSES— Continued. subscribins:, to prove, what, § 1199. 1o will, necessary, §§ 1276, 1289. to will, § 1278. to will, cannot take under will. § 1282. when may talve as much under will as bv suc- cession, § 1283. not necessary to oloirraphic will, § 1277. WOMEN. See Female. WORDS. See Definitions; Technical Words. giving joint authority, how construed, § 12. construction of, § 13. of inheritance, not necessary to pass fee, § 1072. Interpretation of, doubtful, §§ 10G8, 1654. taken in ordinary sense, §§ 1324, 1644. technical, not necessary in will, § 1328. to receive operative construction in will, § 1325. technical, how construed, §§ 1327, 1645. to be aiven some meaning if possible, § 1326. in will, to what time refer, § 1336. of donation and limitation in will, § 1335. used in codes. See Codes. WORKMANSHIP, ownership of property formed bv materials and. § 1028. WRECKS AND ^^'RECKED PROPERTY, invol- untary deposit in case of shipwreck, § 1815. duty of depositary in such case, § 1816. wages of seamen not lost by shipwreck, § 2058. WRITING. See Oral Statements, marriage settlement, § 178. consent to apprenticeship, § 266. trusts in real property, § 852. ownership of private communications in, § 991. transfer without, when, § 10.52. transfer in, called grant, § 1053. transfer of real property to be in, § 1091. instruments in, prima facie import considera- tion, § 1096. transfer of what personal property to be in, § 1135. will, § 1276. nuncupative Avill need not be in, § 1288. non-negotiable instrument in, transferable, § 1459. debtor, on payment, entitled to receipt in, § 1499. INDEX. lOU WRITING-Coutinued. release iu. jj l~yl\. coutraet prevented 1)\ iniud iruin Im-im^' i.ui in enforced when, S HVSA. what conlracts to be in. § l(jli4. supersedes oral negotiations concenilni; con- tract, § 102"). contract iu. takes eflect wlien. 5 ir/Jii. how far disregarded wlien erroneous. 5 l«Vio. intention of parties wlien ascertained from. ( lt:;39. in contract controls printed parts. § l«'>r>l. contract in, jiow altered, § HiJKS. implied warranty ou sale of executory Insiru- uient in, § 1774. carriers obligations not altered «-.\(ei>t l»v. | 2174. guaranty, when to be in, § 27!K!. power of attorney to execute personal niort gage, § 20."9. WRONG, minors and persons of unsound mind liable for. {j 41. he who consents, suiters no, § 3r>ir». no one can be permitted to take advantage <»f his own. § 8517. remedy for every, § 3o23. law does not interpose between i)artit's .Mpi.iU.N in. § 3524. TEAR, deiiued, §§ 14, 1917. B 000 020 113 7 ^^^': -m.